Petition — William Lanay Harvard v. Florida

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@2 aA CASE NO. SEP S1° 62

U.S.

ALEXANDER L. STEVAS

IN THE

CLERK

——

SUPREME COURT OF THE UNITED STATES

October, 1981

WILLIAM LANAY HARVARD,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

SBecr se Sst Ssecr ter sss seer ssesecs

ssc eSeS

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

RICHARD L. JORANDEY'

Public Defender

15th Judicial Circuit of Florida

224 Datura Street/13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

CRAIG S. BARNARD

Chief Assistant Public Defender

Counsel for Petitioner

INDEX

Table Of Citations... ccccccccccseessccesesseseseese

Citation to Opinion Below. ...ccccccccccccsccccsccvces

JULISGIctiONn. ..ccccccccccccccesccssesssecvessesseese

Questions Presented for Review. .ccccccccsesevesesess

Constitutional and Statutory Provisions

INVOL]VEd, cccccccccccncesecvceseseescesceeseeees

Statement Of the CaS€...cccccccesevcvecccsessssscseces

Reasons for Granting the Writ. ..cccccccccsccccsececes

CONCLUSION. cccccrccccccscscecesesseeesseeeseseseeece

Appendix

Opinion, Harvard v. State, 375 So.2d

833 (Fla. LD1E) c6b6 6s 2ceReeeigskaeseueen

Opinion below, Harvard v. State, 414

$0.36 20392 Grams Leet ccacecseckscscees

Order of the Supreme Court of Florida,

Denying Rehearing. .ccccccccccccccccsece

Section 921.141, Florida Statutes

CASTS) 65 ca 660680044 CK TEESE SEA O

PAGE

la-4a

5a-1l0a

lla

l2a-l3a

TABLE OF CITATIONS

CASES CITED

Armstrong v. State, 399 So.2d 953 (Fla. 1981)

Blair v. State, 406 So.2d 1103 (Fla. 1981)

Chambers v., State, 339 So.2d 204 (Fla. 1976)

Combs v. State, 403 So.2d 418 (Fla. 1981)

Demps v. State, 395 So.2d 501 (Fla. 1981)

Dougan v. State, 398 So.2d 439 (Fla. 1981)

Furman v. Georgia, 408 U.S. 238 (1972)

Gardner v. Florida, 430 U.S. 349 (1977)

Godfrey v. Georgia, 446 U.S. 420 (1980)

Gregg v. Georgia, 428 U.S. 153 (1976)

Halliwell v. State, 323 So.2d 557 (Fla. 1975)

Jones v. State, 411 So.2d 165 (Fla. 1982)

Kampff v. State, 371 So.2d 1007 (Fla. 1979)

Lewis v. State, 377 So.2d 640 (Fla. 1980)

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

Lackett v. Ohio, 438 U.S. 586 (1978)

Maggard v. State, 399 So.2d 973 (Fla. 1981)

Phippen v. State, 389 So.2d 991 (Fla. 1980)

Presnell v. Georgia, 439 U.S. 14 (1978)

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

Santobello v. New York, 404 U.S. 257 (1971)

Spinkellink v. Wainwright, 578 *.2d 582 (5th Cir. 1978)

Steinhorst v. State, 412 So.2d 332 (Fla. 1982)

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

United States v. Johnson, 0.8. o 73 LeEd.2d 202

(1982)

Zeigler v. State, 402 So.2d 365 (Fla. 1981)

OTHER AUTHORITIES CITED

Florida Statutes (1973)

Section 921.141 (5) (h)

The Merriam-Webster Dictionary

iin

8,15

17

19

17

passim

16

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

WILLIAM LANAY HARVARD,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

SSS acc cess SSS SSS Se SS SS§S CCC SSC SlCCssS SSS Sees seesseeeesecrsaertesaeceasesa

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Petitioner prays that a writ of certiorari issue to

review the judgment of the Supreme Court of Florida filed on

April 15, 1982, rehearing denied June 22, 1982,

CITATION TO OPINIONS BELOW

The opinion of the Supreme Court of Florida, Case No.

47,052, is reported as Harvard v. State, 414 So.2d 1032 (Fla.

1982) and is set out at pages 5a-10a in the Appendix hereto.

Petitioner's conviction had previously been affirmed and the

sentence vacated in a decision reported as Harvard v. State,

375 So.2d 833 (Fla. 1978) which is set out at pages la-4a of

the Appendix hereto. Petitioner sought certiorari in this

Court regarding the judgment upholding the conviction only and

this Court denied certiorari in Harvard v. Florida, 441 U.S.

956 (1979).

JURISDICTION

The judgment of the Supreme Court of Florida was filed

on April 15, 1982, and petitioner's timely motion for rehearing

was denied by order dated June 22, 1982. (The order denying

rehearing is set out at page lla of the Appendix). On August

10, 1982 Justice Powell signed an order extending the time for

filing the petitim for writ of certiorari to and including

September 21, 1982. Jurisdiction of this Court is invoked

pursuant to 28 U.3.C. 81257 (3), petitioner having asserted below

and asserting herein deprivation of rights secured by the

Constitution of the United States.

QUESTIONS PRESENTED FOR REVIEW

1. What is the proper disposition where there has been

a direct violation of Gardner v. Florida, 430 U.S. 349 (1977) by

the consideration of secret information in imposing the death

sentence; is the procedure applied inthe present case involving

a post-sentence, post-appeal proceeding where the scope of

evidence petitioner was allowed to present was strictly limited

and where the prior Gardner-violative death sentence was presumed

correct with the burden on petitioner to prove harmful error,

consistent with the decision in Gardner and with the Eighth and

Fourteenth Amendments?

2. Whether by affirming the application of the

aggravating factor of “heinous, atrocious or cruel" solely

on the basis of the undefined terms of “stalking” and "harassment",

the Florida Supreme Court has placed such a broad and vague

construction on the $921.14] (5) (h) aggravating factor so as

to violate the Eighth and Fourteenth Amendments and whether

the intervening decision in Godfrey v. Georgia, 446 U.S. 420

(1980) must be given retroactive effect in such circumstances

and where the jury was provided with no definition of the

$(5) (h) aggravating factor?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

l. This case involves the Fifth, Sixth, Eighth and

Fourteenth Amendments to the Constitution of the United

States.

2. This cause also involves Section 921,141, Florida

Statutes (1973) entitled: “Sentence of death or life imprison-

ment for capital felonies; further proceedings to determine

sentence.” Because of its length the statute is set out in its

entirety at pages l2a-l3a of the Appendix hereto.

STATEMENT OF THE CASE

Petitioner was indicted in 1974 for first degree murder

of his ex-wife, Ann Bovard. He was convicted as charged

after trial by jury and in the separate sentencing trial the jury

returned, by an 8 to 4 vote, a recommendation of the imposition

=2e

of the death sentence. The judge sentenced petitioner to death

and petitioner appealed to the Supreme Court of Florida. The

Supreme Court of Florida affirmed petitioner's conviction and

death sentence (la-3a); Harvard v. State, 375 So.2d 833 (Fla.

1978). While the case was pending on rehearing, the Florida

Supreme Court issued an order pursuant to Gardner v, Florida,

430 U.S. 349 (1977), requiring the trial judge to state whether

he had considered any information not disclosed to petitioner

in imposing the death sentence, The trial judge responded that

he had considered certain confidential information in the

sentencing. Petitioner then filed, in the Florida Supreme Court,

an application for relief pursuant to Gardner. The Supreme

Court of Florida issued an order denying rehearing and vacating

and remanding the death sentence for the violation of Gardner

(3a); 375 So.2d at 835.

Thereupon,further proceedings were conducted in the

sentencing court. Petitioner filed a motion for substitution

of judge, a motion for convening of an advisory jury, and a

motion for statement of aggravating circumstances which were

each denied. A hearing was then held in the sentencing court

on February 9, 1979. The state presented no testimony or

evidence. Petitioner presented the testimony of Charles Hess,

petitioner's attorney for a prior 1969 Jacksonville offense, and

petitioner testified, Petitioner also introduced into evidence

a prior psychiatric report and proffered the preliminary

hearing transcript from the prior Jacksonville offense.

Petitioner proffered the testimony of Mr. Hess regarding the

factors the Jacksonville judge had before him in sentencin,

petitioner on that prior offense, regarding the psychiatric

report done in Jacksonville relative to the prior offense,

and regarding inconsistences in the facts relating to that

prior offense. Petitioner also testified regarding that

prior offense and regarding the present offense.

The sentencing judge ruled that mostof the evidence

regarding the prior Jacksonville offense that petitioner had

proffered was beyond the scope of the remand by the Florida

Supreme Court and thus refused to consider it. Finding that

<-3-

the previous death sentence was appropriate, the judge reimposed

the death penalty on August 22, 1979, without issuing findings

of fact in support of that sentence. In March, 1980 the trial

judge issued “proposed” findings of fact, requesting that the

prosecutor comment as to whether the aggravating and mitigating

circumstances contained in that proposed order would "pass

appellate review." The prosecutor responded concerning three

of the four agoravating factors found in the order. The

judge adopted the suggested changes and this time finding two

aggravating factors, filed his final judgment on resentencing

in Mav, 1980,

An appeal was taken by petitioner to the Supreme Court

of Florida which affirmed the proceedings conducted in the

trial court and the reimposition of the death sentence,

a Fee a a rn nN FO

REASONS FOR GRANTING THE WRIT

1. The inadequacy of the Florida procedure to remedy

a_violation of Gardner v, Florida, 430 U.S. 349 (1977). This case

presents the question of the constitutional adequacy of the

procedure employed by the Florida courts ~* where there has

occurred a direct violation of Gardner v. Florida, 430 U.S. 349

(1977). It is a question that was not specifically resolved

by this Court in Gardner but one which is of significant

importance and in need of resolution.

This case presents the proper case for resolution of

the question. The record in the instant case pellucidly

highlights the defects in the Florida Gardner procedure and

the issue was fully preserved, developed, and addressed in the

lower courts. The case-at-bar gives the lie to the constitu-

tional sufficiency of the corrective procedure employed by the

Supreme Court of Florida.

The constitutional question is important and in need

of resolution because it was left open by this Court and because

the procedure adopted by the Florida courts is inconsistent with

the opinion in Gardner. And, although not controlling on the

question, it is not of minor significancein evaluating the

Florida Gardner procedure, to note that under that procedure,

only Mr. Gardner's sentence was changed while all other

Gardner-violative death sentences have been reaffirmed,

In Gardner v. Florida, supra, the precise relief to

be granted was left open by this Court, except that the death

sentence had to be vacated and that any further proceedings

would have to take place at the trial level. 430 U.S. at

362. It was ordered that there be “further proceedings at the

trial court level not inconsistent with this opinion.” Id.

The issue here is whether the Supreme Court of Florida complied

with the mandate of this Court.

There are two major constitutional defects in the

Gardner procedure employed in the case-at-bar. First, the

original, Gardner-violative, death sentence is presumed to be

correct in the resentencing proceedings, with the result that

the burden is placed upon the capital defendant to prove the

prior sentence was wrong and should be changed. Second, the

scope of allowable information that may be presented at the

further proceedings is exceedingly narrow, with the result that

the Eighth and Fourteenth Amendments mandate of individualized

sentencing and reliability in capital sentencing was thwarted.

In the direct appeal of this cause, the Supreme Court

of Florida, with two justices dissenting, affirmed petitioner's

death sentence (la-3a). Then. while the case was pending

on rehearing, Hit was discovered that the sentencing judge

had relied upon a confidential presentence investigation report

not disclosed to counsel or petitioner, in direct violation

2/

of Gardner v. Florida, supra. (3a). Petitioner then filed

for relief pursuant to Gardner, requesting that the Supreme

Court of Florida “vacate the sentence, and remand this cause

for a new sentencing trial.” In response the Supreme Court

of Florida issued its order, denying rehearing, but vacating

the sentence of death for the Gardner violation (3a). The

court sent the cause back to the sentencing judge for what on

its face appeared to be broad relief, but which in application

turned out to be severly restricted, as follows:

The case is remanded to the trial court

for resentencing without the necessity

of convening an advisory jury, but with

directions to provide counsel for

the state and the defendant an opportunity

to explain, contradict, and argue regarding

the relevance, materiality, and import of

the confidential information and military

Win his rehearing petition in the Supreme Court of Florida,

petitioner had pointed out the possibility of a violation of

Gardner: "There is some indication in the record that the judge

considered matters not provided to the jury or defense counsel,...

Therefore this Court should order a new sentencing hearing at

which the jury may view all relevant factors."

2/ the secret consideration was disclosed as a result of the

procedure adopted by the Florida Supreme Court after Gardner,

to identify Gardner violations. After Gardner, the Court issued

orders to trial courts in all pending capital appeals to disclose

whether they had considered confidential information in

sentencing. The trial judge in the present case disclosed that

he had considered secret information in sentencing petitioner.

The procedure adopted by the Florida Supreme Court for ident atyand

Gardner violations is not in question in this case, rather

the question involves the procedure after the violation has been

identified.

-6-

history, as well as other matters properly

considered by the trial court concerning

appellant's sentence under Section 921,141,

Florida Statutes (1977).

(3a).

Although the court said that it was remanding for

"resentencing", in actuality the cause was remanded with the

prior Gardner-violative sentence presumed to be correct and with

the scope of information that petitioner could present being

severely limited.

a. Restricted scope

After the remand by the Supreme Court a hearing was

conducted in the sentencing court. Petitioner had previously

filed and had denied several motions relating to the adequacy

of the Gardner relief--motions for a different sentencing

judge and for a sentencing io” gusiésauiete primary concern

at the hearing was to present mitigating or ameliorative

evidence relating to a prior Jacksonville offense, and hence

responding to the characterizations and opinions regarding that

offense contained in the undisclosed secret presentence inves-

tigation report (PSI). This prior Jacksonville offense,

involing an assault on petitioner's first wife and her sister,

was critically important as it is the primary reason that the

death sentence was imposed and upheld in the present case.

That this prior offense was the single most dominant factor

leading to the death sentence in this case is shown by the fact

that petitioner's death sentence is the only case where a

death sentence has been upheld in Florida in a “domestic”

5/

situation. It also was the dominant theme of the Florida

Wone request for a different sentencing judge was based upon

the ground that the judge had already considered and relied upon

the offending secret information and thus could not fairly

reevaluate the evidence in resentencing, relying in part upon

Santobello v. New York, 404 U.S. 257 (1971) and like cases.

4/one jury was requested on the grounds that serious and fundamenta

error had been committed in the consideration of evidence pre-

sented in the prior sentencing trial and thus the jury's verdict,

necessary for a death sentence under Florida law, could not be

relied upon in the new sentencing proceeding. Thus, a full pre-

sentation of evidence was required.

3/the only three cases where the Florida Supreme Court has

remanded for entry of life sentences, overruling both judge

and jury, have involved killings resulting from emotional

-7-

Supreme Court's original opinion affirming the death sentence

(2a-3a) and of the evidence presented by the prosecution and of

the trial court's sentencing orders,

Not coincidentally was the prior Jacksonville offense

the dominant theme, and the subject of much innuendo and

characterization, in the secret PSI. At the hearing, petitioner

sought to present evidence to more fully explain, to mitigate

and ameli cate, the circumstances of the offense. Petitioner

was, however, thwarted from doing so by the sentencing judge's

ruling that such evidence was beyond the scope of the Gardner

proceedings, reasoning that since testimony regarding the

Jacksonville offense had been presented in the original sentencing

trial, such testimony at the Gardner proceeding was irrelevant.

The judge strictly limited the scope of the hearing, ruling that

the Gardner remand was only for the purpose of rebutting

information in the secret PSI and since evidence was presented

on the Jacksonville offense in the prior sentencing, information

regarding that offense would not be in rebuttal of the PSI but

rather would be an attempt,in essenceto reopen the prior

sentencing trial.

Petitioner was allowed, however, to proffer evidence and

he did 20." the poison in the secret PSI involved much more than

had been presented in the prior sentencing trial. The poison

Footnote 5 continued:

domestic situations. Blair v. State, 406 So,2d 1103 (Fla. 1981);

Kampff v. State, 371 So.2d 1007 (Fla. 1979)3 Halliwell v, State,

323 50.20 557 (Fla. 1975). In no such similar “domestic” case

has the death penalty been upheld. See also Poappes v. State,

389 So.2d 991 (Fla. 1980); Chambers v. State, 3 So.

(Fla. 1976); Tedder v. State, 322 So.2d 908 (Fla. 1975). Cf.

Spinkellink v. Wainwright, 578 F.2d 582, 612 n. 37 (5th Cir.

i78) (where the State of Florida argued that domestic cases

were not “appropriate for imposition of the death penalty.”).

6/

“In brief summary, petitioner sought to show that the Jacksonville

offense was not deliberate nor planned, that it had begun over

a reasonable and sincere concern for the welfare of his children,

that it was highly emotional situation and that he was unarmed.

Petitioner also sought to show through the proffered testimony

of his attorney in that charge, all of the factors before the

sentencing judge in that Jacksonville offense; for example:

“Mr. Harvard had been in three courts in one morhing [on the

day of the offense)"; “He had been harrassed by his wife...

she was vicious at that time"; “the Court knew of the circum-

stances of her running around on Mr. Harvard [and that] she was

entertaining a man in her trailer-": and that “the cap of it

was the eight-year-old child asked her father [petitioner]...what

her mother was doing in bed wrestling with another man.”

“«’*® : . pape - easton te. —

in the secret PSI was its characterizations, innuendo, unsupported

facts,insinuations,and its use of that prior offense to form

opinions and recommendations regarding nse The

judge had relied on that secret PSI in first imposing the

death sentence. Petitioner sought to respond to show all of the

factors surrounding that prior offense in order to ameliorate

the false characterizations and the overemphasis that had been

placed upon it. For example, on that prior Jacksonville offense,

petitioner had been sentenced to one year probation, with three

months in the county jail and such sentence was not based upon

a plea bargain. Such sentence contraindicates that the offense

was asdeliberate and serious to warrant the extreme, dominant

weight it was given in sentencing petitioner to death. The

secret PSI criticized that sentence as being “leninent” and also

said that it was based on a plea bargain. As evidence at the

Gardner hearing, petitioner sought to have his attorney in that

prior offense testify in order to stewall of the factors

that the Jacksonville judge had before him in imposing that

sentence. In essence petitioner sought to show that the

Jacksonville offense was not as severe as it had been

characterized and thus not deserving of the overwhelming emphasis

that had been placed upon te” Petitioner thus sought to

present mitigating evidence,

The judge however, ruled the evidence to be improper.

Footnote 6 continued:

Petitioner also sought to contradict some of the testimony of

the ex-wife as given in the prior sentencing trial and as relied

upon and reported in the secret PSI--- such as that he had not

intentionally shot his wife and thrown her to the ground and

put his foot in her back and took aim. In essence, petitioner

sought to show the full circumstances to ameliorate the emphasis

placed on the prior offense,

2/ror example, the secret report is filled with insinuations and

characterizations that are false, such as that titioner "fully

intended to kill them" in that Jacksonville incident. It further

speculated that petitioner “will go to any lengths.... in order

to retaliate...." The report also claims that petitioner

“placed a pistol against the head of these two women and pulled

the trigger.” It also said that the Jacksonville judge had been

“extremely lenient” and that petitioner had entered into a plea

bargain for a reduced sentencing. The secret PSI not only

contained this false innuendo and “facts” but thus used it to

form opinions and recommendations regarding petitioner.

8/ohe Florida Supreme Court recognizes a difference in the “qualit

of aggravating circumstances. See Demps v. State, 395 So.2d 501,

506 (Fla. 1981).

He recognized only a very »arrow scope of the proceedings under

the Fiorida Supreme Court's Gardner remand and ruled that only

such evidence as went only to rebut specific facts in the

secret PSI, not previously the subject of the prior sentencing

hearing, could bo presented.

The judge resentenced petitioner to death after the

Gardner hearing, stating that the prior sentence was stiil

proper. Then, nine months later, he filed findings of fact

in support of the death sentence in which he expressly stated .

that he refused, as a matter of law to consider the evidence

offered by petitioner. Petitioner challenged the narrow scope

of the Gardner proceedings on appeal to the Supreme Court of

“107

Florida. The Supreme Court of Florida ruled directly upon the

federal question and reaffirmed the extremely narrow scope it

allows in proceedings conducted after a Gardner violation. It

summarized its holding as follows:

This Court's remand for resentencing was for

the purpose of redressing a Gardner

violation. Under our order, the trial

judge was obligated to consider the ne

evidence offered by appellant to explain

contradict, or rebut information which had

been previously undisclosed to appellant

or S counsel, We conclude that the

trial judge went beyond what was necessary

in allowing appellant a full opportunity

to present evidence at the resentencing

hearing in rebuttal of the confidential

information previously considered; we find

no error.

(emphasis supplied) (9a). The Supreme Court of Florida thus

clearly iterated the limited scope it would allow in Gardner

proceedings and applied that narrow limitation strictly in

2/tm his order the judge stated:

“{I)}t appears to this Court that, while

there was a summary of the 1969 shootings

of a former wife and a former sister-in-law

contained in the confidential portion of the

presentence investigation, the Defendant's

main thrust was to impeach the testimony of

the former wife and former sister-in-law as

given in the bifurcated sentencing phase of

his trial and not the summarized information

as set out in the presentence investigation.

Such impeachment should have been done at the

time of trial and it therefore appears that this

was wrongful attempt to belatedly impeach evidence

presented by the State to the advisory jury. The

Supreme Court's Remand was not for this purpose.”

IW ane point on appeal presented to the Florida Supreme Court by

petitioner was that: "The procedure employed in resentencing

appellant to death denied appellant due process of law and constitu:

ted cruel and unusual punishment.... B. The lower court improperly

limited the scope of resentencing proceedings."

-10-

the present case. The Court reasoned that since the evidence

petitioner sought to present to mitigate the material in'the

secret PSI had been the subject of evidence also at the prior

sentencing trial, it could not be considered because it was not

“information... previously undisclosed." The result was that

petitioner was precluded from presenting and the Florida

courts refused to consider, as a matter of law, the ameliorative,

mitigating and explanatory evidence and arguement offered by

petitioner. The Court has given no reason for its holding

that Gardner proceedings are so limited in scope. Nevertheless

such a limitation violates both the spirit and the letter of

the Gardner holding. In Gardner it was held that a death

sentence imposed in part upon secret information denied due

process of law. 430 U.S. at 362. A post-sentence, post-appeal

proceeding where the evidence petitioner is aljowed to present

is so narrowly restricted so as to preclude the type of

ameliorative evidence as sought to be presented here, cannot

cure the due process violation. Sucha procedure clashes with

the unique need for reliability required for capital sentencing

and belies the requirement of an individualized sentencing

Cetermination. The evidence petitioner sought to present

certainly related to the “defendant's character or record and

any of the circumstances of the offense...." required by the

Eighth Amendment to be considered. Lockett v, Ohio, 438 U.S.

586, 604 (1978). That this Court expected a broader scope of

proceedings is shown by the refusal in Gardner to allow as

relief that the Supreme Court of Florida review the secret

PSI. 430 U.S. at 320. By rejecting such a review as adequate

to correct the due process violation, this Court held that a

proceeding restricted to review of the seciet PSI would be

insufficient because it would nat be a resentencing with a

weighing and evaluation of aggravating and mitigating factors.

See also Gardner v. Florida, supra, 430 U.S. at 370 n.

(Marshall, J., dissenting).

b. Presumption of correctness

“Moreover, in conjunction with this exceedingly sterile and

narrow scope of proceedings, the Florida courts further limited

the Gardner relief procedure by application of a presumption of

elle

correctness of the prior Gardner-violative death sentence and by

placing the burden on petitioner. The result is that the

Florida courts have constructed a form of relief that is in

effect identical to the form of relief expressly rejected by

this Court in Gardner. In practice, this presumption required

that petitioner prove prejudice from the Gardner violation.

Implicit in tnis Court's rejection as relief that the Florida

Supreme Court review the secret PSI, was the holding that an

analysis of prejudice or harmless error would be inadequate to

correct the due process violation.

That the presumption that theGardner-violative sentence

was correct ws applied in the present case is expressly

shown by the record. At the conclusion of the hearing in the

sentencing court after the remand, the judge reimposed the

death sentence, stating that petitioner had not shown anything

in the hearing tu change the prior sentences "The Court is of

the opinion that the sentence as earlier imposed is still an

appropriate sentence." The sentencing court issued no findings

of fact or weighing of aggravating and mitigating factors at

the time that the sentence was imposed -- those findings were

11/

not made until nine months later. The use of the presumption

of the correctness of the prior sentence is evident. The

Supreme Court of Florida's opinion on direct appeal expressly

Donat the sentencing judge did not weigh aggravating and

mitigating factors is shown by his sentencing procedure. He

imposed the sentence, saying that the prior sentence was proper.

He entered no findings of fact and no analysis of aggravating

and mitigating factors at that time. Not until nine months

later did the judge enter findings in support of the sentence,

and then the record shows that he only entered the findings

in order to retrojustify an already imposed sentence so that

it would "pass appellate review.” Prior to issuing his findings,

the judge sent out proposed findings and asked the state to advise

him whether they “will pass appellate review." The state

responded with suggested changes and the judge adopted the changes,

altering the aggravating factors that he had found in his proposed

order. The judge thus did not use the aggravating and mitigating

factors to determine the appropriate sentence but rather used them

in order to allow hispreviously imposed death sentence to “pass

appellate review.” Such a procedure is neither reliable nor

individualized and pellucidly demonstrates the presumption

of correctness he placed on the prior sentence.

-12-

recognizes and upholds the presumption of correctness of the

prior sentence that was applied in the Gardner proceedings:

"(The sentencing judge's] conclusion that

the death sentencing was again appropriate

clearly indicates that his finding is based

upon the failure of the defense to present

sufficient evidence at resentencing to rebut

the information contained in the confidential

portion of the presentence investigation report

Or in the military records. The written order

expressly states that the defendant had failed

to show harm or errors in the con entia

matters considered in the original sentencing

procedure.”

12/

(emphasis supplied) (7a).

Thus, the procedure where there has been a direct

Gardner violation as applied in this case, was highly restrictive

in scope and legal effect. It placed the burden on petitioner

to prove harm from the Gardner violation and allowed petitioner

only an extremely narrow scope of evidence in which to do so.

The relief fashioned by the Florida courts in this case was a

post-sentence, post-appeal proceeding where he was strictly

limited to presenting evidence that went only to information in

the secret PSI and where the burden was placed upon him to show

harmful error in the Gardner violation.

In Gardner, this Court remanded for “proceedings at the

trial court level not inconsistent with this opinion.” 430 U.S.

at 362. The proceedings in the present case were inconsistent

with the mandate of Gardner. The Gardner-relief procedure in

Florida is a sham, a “resentencing” in words only.

This Court should accept jurisdiction in this case to

review the constitutional question left open in Gardner.

12/ the Florida Supreme Court has in other cases applied the

restrictive scope of Gardner remand proceedings -- not allowing

challenges to aggravating factors nor presentation of mitigating

circumstances -- and has applied the presumption that the prior

-violative was correct -- thus placing the burden on

the defendant and refusing to review the rs aging. | of previously

found aggravating factors. See, e.q., tate, 398

So.2d 439 (Fla. 1981). In dissent in Dougan, two justices

opined, contrary to the majority that: "The original sentence

was vacated. If execution as ordered is to take place, then

that execution must be predicated on the last~-imposed sentence,

which must be free from intirmities. Just because it is the

same as a prior affirmed sentence does not necessar make

this one correct;

t must pass constitutional muster on its

own.” (emphasis supplied) Id. at 44)

@13<

2. The vagueness and overbreadth of the aggravating

circumstance of “especially heinous, atrocious or cruel" and

the retroactivity of Godfrey v. Georgia, 446 U.S. 420 (1980).

The application and affirmance of the aggravating circumstance

of “especially heinous, atrocious or cruel” [Fla,Stat. 8921.141

(5) (h)] by the Supreme Court of Florida in the present case

is violative of the need to channel sentencing discretion by

"clear and objective standards.” Gregg v. Georgia, 428 U.S.

153, 198 (1976),

The case-at-bar is the proper case to review this

important Eighth and Fourteenth Amendment question, not only

because its facts are strikingly similar to those in Godfrey

v. Georgia, supra, but also because the Florida Supreme Court

upheld the application of the 8(5) (h) aggravating circumstance

on a narrow, but nonspecific ground, that pellucidly highlights

the standardless application.

The situation in the present case arises out of a bitter

and emotional divorce. There had been several confrontations

between the two for several months. On the night of the offense,

petitioner was going into work at his cabinet shop, but on the

way into the shop he met a friend/employee who was depressed

and wanted to talk. They bought some beer and went to the

beach where they sat in petitioner's car, drank and talked for

several hours. At a bar close by, petitioner's estranced wife's

car was in the parking al he petitioner and his friend began to

leave the beach, petitioner's wife was driving away from the

bar and petitioner followed her down a main thoroughfare of the

town. At one point she slowed and pulled to the shoulder of the

road and petitioner pulled up beside her. A shotgun was pointed

through the passenger side of petitioner's car and one shot was

14/

discharged. The deceased was killed instantaneously.

13/ one bar was erroneously noted by the Supreme Court of Florida

as being the wife's place of employment.

14/ there is some question as to whether petitioner fired the shot or

whether petitioner's friend pulled on the gun causing it to

discharge. His friend testified that he had thought he caused

the gun to fire but that the police had convinced him otherwise

though he admitted pulling on the gun at the time it discharged.

Nevertheless, the Florida courts found that petitioner had fired

the shot.

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Such circumstances under previous Florida precedent

15/

would not constitute “especially heinous, atrocious or cruel,

This face was implicitly recognized by the Florida Supreme

Court when it upheld the 8(5)(h) aggravating factor by

finding so called “additional acts." The court said:

"... appellant's lying in wait for

and stalking of Ms. Bovard, compounded

by appellant's previous harassment of her,

constitute sufficient ‘additional acts'

to justify application of the heinous,

atrocious, or cruel aggravating factor."

(9a).

The Florida Supreme Court has given no definition

of “stalking” or “harassment” so as to justify a finding of

16/

the 8(5) (ih) aggravating factor. In fact, in previous cases

the court had rejected such a finding under similar circumstances.

For example, in Kampff v. State, 371 So.2d 1007 (Fla. 1979) the

court rejected heinous, atrocious or cruel as an aggravating

circumstance where the defendant went to his wife's place of

employment and fired at least five shots, killing his wife.

Kampff had previously given his son "a .38 caliber bullet to

give to his mother and told him to tell her to ‘have fun'.”

Id. at 1009. The trial court had found that petitioner had been

brooding over his divorce and planned the murder for three

years. Kampff #gdditionally had been “harassing” his former

wife since their divorce and he had asked their daughter whether

she would miss her mother “if anything happened to her.” Id.

In Blair v. State, 406 So.2d 1103 (Fla. 1981) the defendant

made elaborate plans to kill his wife and on the day of the

offense he arranged for everyone else to be out of the house

where he shot and killed his wife. The Supreme Court of Florida

rejected especially heinous, atrocious or cruel as an aggravating

factor. The situation in Halliwell v. State, 323 So.2d 557

(Fla. 1975) arose from an emotional love triangle where the

defendant killed his lover's husband by crushing his skull

1575060, e.g., Lewis v. State, 398 So.2d 432, 438 (Fla. 1981)

("... a murder by shooting ... is as a matter of law not

heinous, atrocious or cruel."); Megan Vv. Stakes 399 So.2d 973,

977 (Fla. 1981) (murder by a single shot gun blast is not heinous,

_ atrocious, or cruel); Lewis v. State, 377 So.2d 640, 646 (Fla. 1980)

16/ tne dictionary definitions do not aid in narrowing the meanings:

“Harass" is “to annoy continually” with synomyms of “harry, plague,

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with a 19-inch iron “breaker bar" and then dismembered the body.

The Florida Supreme Court found “nothing more shocking in the

actual killing than in the majority of murder cases reviewed

by this Court." Id, at 56). Also, in Lewis v. State, 398 So.2d

432 (Fla. 1981) the court rejected the finding of 8(5)(h) where

"(t)he trial court judge based his finding that the murder was

heinous, atrocious, and cruel on the fact that the murder

was premeditated, cold and calculated, and stealthily carried

out." Id. at 438. See aiso Armstrong v. State, 399 So.2d 953

(Fla. 1981)

Accordingly, there is no specific and detailed quidance

by the Florida Supreme Court as to “stalking” or “harassment”

establishing heinous, atrocious or cruel. In the cases referced

to in the above paragraph,as well as other,heinous, atrocious

or cruel had been rejected under such circumstances, The

resuit is the failure to “tailor and apply [Florida's capital

sentencing] law in a manner that avoids the arbitrary and

capricious infliction of the death penalty.” Godfrey v. Georgia,

supra, 446 U.S. at 428,

There is nothing in the words “stalking” and "lying

in wait" that gives any guidance or implies any restraint on

the capricious imposition of the death penalty. It is also

important. to note that those “findings” of “stalking” and

“lying in wait"by the Florida Supreme Court were not findings

by the sentencing judge in this sentencing. Rather those

"findings" come directly from the Florida Supreme Court's

prior oponion in this case (before the vacation of the sentence

for a Gardner violation). On resentencing the sentencing

judge had removed those findings, apparently because they

were unsupported by the evidence, and thus the Florida Supreme

Court's affirmance of the 8(5)(h) aggravating factor suffers

Footnote 16 continued:

pester, tease and tantalize"; and “stalk” is “to walk stiffly

or haughtily” or .“to approach stealthily.” The Merriam-Webster

Dictionary.

17/the facts of the present case are also closely similar,

although somewhat less agregious, to those faced by this

Court in Godfrey v. Georaia, supra, where it was held that the

“petitioner's crimes cannot be sa to have reflected a

consciousness materially more ‘depraved’ than that of any

person guilty of murder."

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from the additional defect of being based upon findings not

made by the trial court. Cf. Presnell v, Georgia, 439 U.S.

14 (1978). The “stalking” and "lying in wait” findings are in

fact unsupported by the record which shows that petitioner had

not planned to go to the beach to drink that night but had planned

to work until meeting his friend on the way. All the record

shows is that petitioner left at the same time his ex-wife

left the bar (at closing) and that he was behind her, following,

as they drove down a main thoroughfare. There is nothing to

show that petitioner planned to shoot his wife. As to the

“harassment,” it appeared to be at least somewhat mutual and

not unlike usual bitter emotional divorces.” tt remains

that there is nothing in the Florida Supreme Court's opinion to

define, guide, restrict or control the application of the

8(5) (h) aggravating factor. Such application is fatal to the

rational and consistent standards required by the Eighth and

Fourteenth Amendments. See Godfrey v. Georgia, supra, 446 U.S.

at 427-428, 432-433.

An additional constitutional defect in this case is

that the aggravating factor of “heinous, atorcious or cruel"

was not defined in the instructions to the jury. The trial

judge merely read to the jury that one of the aggravating

factors was that “the capital felony was especially heinous,

atrocious or cruel” without any further definition. In

Godfrey v. Georgia, supra this Court disapproved of an instruc-

tion that told the jury of the Georgia equivalent of 8(5)(h).

The jury in Godfrey was simply told that one factor was

"outrageously or wantonly vile, horrible and inhuman." As this

18/Nor is there any evidence or any finding that the deceased

knew she would be killed -- a factor that the Supreme Court of

Florida has used with some frequency to make an otherwise non-

heinous gun shot death, heinous, atrocious or cruel. E.gq.

Combs v. State, 403 So.2d 418 (Fla. 1981); Jones v. State, 411

So.2d 165 (Fla. 1982); Steinhorst v. State, So.2

(Fla, 1982). See also Zeigler v. State, 402 So.2d 365 (Fla. 1981).

19/ror example, there was evidence that petitioner tried unsuccess-

fully to plant marijuana in her car to have her arrested, he

threw firecrackers in her yard one time, she went to his girlfrien¢

place of employment and created a confrontational scene, she

confronted petitioner in his cabinet shop where they began to

fight with petitioner being bitten and cut, petitioner allegedly

called one time to have her phone disconnected, she harassed

his girlfriend, he sent a threatening note to her, she frequently

called him resulting in her roommate opining that she was

provoking petitioner.

Court held in Godfrey:

“There is nothing in these few words,

standing alone, that implies any

inherent restraint on the arbitrary

and capricious infliction of the death

sentence.”

446 U.S. at 428. It was noted that the “jury's interpretation

of (the aggravating factor] can only be subject of sheer

speculation.” Id. at 429.

The same constitutional defect obtains in the present

case and Godfrey controls to require invalidation of the

factor of “heinous, atrocious or cruel,”

Although the question was raised in the appeal below,

the Florida Supreme Court refused to review the issue.

The court held that since it affirmed the death sentence in the

prior appeal of this cause, before it vacated the death

sentence for a violation of Gardner, it would not reach issues

going to the sentencing trial (10a). Such reasoning is contrary

to the need for there to be a valid jury verdict as a prerequisite

to a valid death sentence in Piorida,~~and it is contrary to

the need for this death sentence to be constitutionally valid

on its own. The effect of the Florida Suprme Court's ruling is

to uphold the failure to instruct the jury on 8(5) (h)in this

case for its reasoning was that it was affirming the death

sentence because it had previously affirmed ie

The Florida Supreme Court's holding ignores the

intervening decision and the retroactive effect of Godfrey

v. Georgia, supra. The applicability of Godfrey was briefed

22/

and presented to the Supreme Court of Florida and after the

207 n5eh the sentencing judge and the Florida Supreme Court relied

upon the jury's sentencing verdict in support of petitioner's

death sentence. As discussed in the prior issue, the courts

applied a presumption of the correctness of the prior sentence,

and no jury was permitted in this sentencing proceeding in

reliance upon the prior sentencing trial.

21/such action by the Florida Supreme Court further highlights

the error in the presumption of correctness in that prior sentence

that is addressed in the previous issue herein above,

22/ tne Gecision in Godfrey was relied upon extensively in

petitioner's brief in the Florida Supreme Court in petitioner's

challenge to boththe finding of 8(5)(h) and the failure to

define it in the jury charge.

~18-

affirmance that ignored Godfrey petitioner raised the issue

of the retroactivity of Godfrey in his motion for rehearing

in the Supreme Court of Ploridsé=~ yet the court upheld the

application of the 8$(5)(h) aggravating factor. The failure

of the Supreme Court of Florida recognize the retroactivity of

Godfrey v. Georgia, supra, was fundamentally erroneous and

contrary to the decis.ons of this Court. In Godfrey this

Court was dealing with the application of the statute that was

upheld on its face in 1976 in Gregg v. Georgia, supra. Likewise,

in 1976, the Florida capital sentencing statute was upheld

on its face in Proffitt v. Florida, 428 U.S. 242 (1976).

In Godfrey this Court applied the Eighth and Fourteenth

Amendment mandate of Furman v. Georgia, 408 U.S. 238 (1972).

Godfrey found the "standardless and unchannelled imposition of

death sentences in the uncontrolled discretion of a basically

uninstructed jury...."” 446 U.S. at 429. Accordingly, because

Godfrey applied previously established constitutional principles

and dealt with the underlying Eighth and Fourteenth Amendment

requirements for a death sentence to be constitutionally imposed,

it meets the standards for retroactive epplication®” The

Florida Supreme Court thus fatally erred in ignoring and failing

to give retroactive effect to Godfrey v. Georgia, supra; because

under Godfrey the death sentence imposed on petitioner is

constitutionally infirm and must be vacated.

Accordingly this case presents the appropriate case

to review and this Court should grant certiorari to review

whether the application of the 8(5)th) aggravating factor in

this case constitutes such a broad and vague construction so

as to violate the Eighth and Fourteenth Amendments and to

decide whether Godfrey v. Georgia, supra should be given

retroactive application.

23/In his motion for rehearing petitioner expressly alleged,

inter alja, that: “In declining to reach the question of the lack

of any definition of ‘heinous, atrocious, or cruel’ in the charge

to the jury, this Court may have overlooked the retroactivity of

the intervening decision of Godfrey v. Georgia, 446 U.S. 420 (1980).

24/see, e.g., United States v. Johnson, U.S. » 73 L.Ed.24

202 (1982).

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CONCLUSION

The Petition for the Writ of Certiorari to the

Supreme Court of Florida should be granted,

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Florida

CRAIG S. BARNARD |

Chief Assistant Public Defender

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