# Petition — William Lanay Harvard v. Florida

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1128

## Text

ms 82-5444

Office - Supreme Court,
LED
" 4 AA FI

@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.

-1l4-

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,

.215-

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."

-16-

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).

-19-

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1314%3A1. Public record. Not legal advice.