Petition — WILLIAM M. M. WHITE v. FLORIDA (No. 82-5534)

No. %O-S5 3Y J RECEIVED

IN THE :

SUPREME COURT OF THE UNITED STATES

1982

FILED

oct 6 1982

October,

WILLIAM MELVIN

Petitioner,

|

VS.

Alovender L. Stevas, Clerk

f O} i O} IDA, ———

14 it a

] iN FO} OF ¢ RART HE

ME COURT OF FI IDA

RICHARD L. { \NDBY

Public Defender

15th Judicial Circuit of Florida

24 Datura Street/1l3th Floor

West Palm ( ach, Florida 3340]

(305) 837-2150

’

CMAI S. BARNARD

hief A istant iblic Defender

RICHARD H. BURR, III

Assistant Public Defender

“-

Counsel for Petitioner

ocntence

broad

1. Whethe

of death,

and vague con

QUESTIONS PRESENTED

or, in affirming the imposition of the Petitioner's

the Florida Supreme Court has adopted such a

truction of the “hinder ... governmental function"

aggravating circumstance as to violate the Eighth and Fourteenth

Amendments?

2 « Whether Petitioner's death sentence was imposed in

the trial court and upheld in the Florida Supreme Court without

"the type of individualized cx ideration of mitigating factors ...

é 111 | by the I th ind ( rte th Ame ents in Caf ital ca .”

Lockett v. Chio, 438 U.S. 586, 606 (1978)?

3. ther the Florida Court's cursory, ch i]

oh ew" of the a ivat yj and t iting circumstance in

Petit ier'’s ise, in which the Court failed to address or redr 5

ibstantial wihnth Amendment Violations in the ass ent of bot

1aqravat ind mit rat} e298 istances, fulfilited the urt's

Eiaghth-Amendment-based “{aquarantee] that the [aggravating and

itigating) reasons present in 1@ case will reach a imilar re lt

to that reached under similar ci imstances in anmther case,"

Proffitt v. Florida, 428 U.S. 242, 251 (1976)?

f

Questions Presented ° e

Opinions Below ee

$ .

Jurisdiction + on

( nst ‘ ; , il road +a ‘

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ce ; »* ; 3

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,

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I.

, ,

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‘

° , 4

Ss '

ri? r »f ¢ rye 4 é ‘

I t

Order f the rime irt

A i

rehearing and 15 F,

or ¥ + 7 Va,

; , ted ily

Opinion of the § remo (

CASES CITED

Antone v.

Eddings v.

S.Ct. 869 (1982)

Fer

TABLE OF AUTHORITIES

Oklahoma, U~.S. 4, 102

guson v. State, 417 So.2d 639 (Fla.

Francois v. St

Fur

Goa

TT. €

athe

Whi

Whi

Zant v.

STATUTES CITED

man v. Geor

frey v. Geo

env Fuia, 461 Us8. SS Glo l oi ce ka web wae s 64 be 3 ae

v. State, 411 °o 1165 (Fla 1982)

tt vy hio, 438 3 CALITO a eine eae eb ee

ndez v. tate 68 11278 (Fla 1979)...

CTILEt VV. FIOFicng, 428 .S C2 CES7OP sae ee

lerson v. State, 358 So.2d 826 (Fla. 1

ey v. tate, 66 $ 119 (Fla 1979)

Istrom v. Montana, 442 U.: Le 44 9

th vv... Balikcom, 660 F.24 573. (3th Csr. 2361)

cert. denied, u.s (Oct c 4, 1982)

th v. State, 403 ».2d 933 (Fla 81)

jer \ State, 322 So 1481 (Fla 197

phe vy. Zant, 631 F.2d 397 (5th Cir. 1980

reh. Genied and modified, 648 F.2d 446 (5th

ero v. State, 403 So.2d 355 (Fla. 1981)

hington v. Watk , 655 #24 46 (5th Cir

(Unit A), cert. denied, U.S , 102 S.ct

Ors Pree ere ee er re ee ee ry ee ee

te v. State

te v. State

Stephens,

ate, 407 So.2d 885 (Fla.

rgia, 446 U.S. 420 (1980)

State, 382 So.2d 1205 (Fla. 1980).......

ww SO eee Wee ae eo ee a we Se ee a oe le ee

eee ek ea ee

» 415 So0.24 719 (Filia. 1982) 260 2:<:

» 403 So.2d 331 (Fla. 1981)......

Florida Statutes (1977)

me ie be eT. a Ae rnee RS ee ee ea

Ga.

Section 921

Section 921

Section 921

Section 921

Section 921

Section 921

Section 921

Section 921

Code Ann.,

0141(5) (e) wn cc ccccccccee ,

0.8: , 102 S.Ct.

0141(5) (g) .. cc eeee occcces

0141(5) (Ch)... cc eees eevee

oh B1 16) co secccsanes eecces

0 141(6) (a) nc ccccccccvccee

-141(6) (b)..... eecccccces

~141(6) (f)........ eccsces

section 27-2534.1 (b) (7)

eite MO 15S, S98- (EOTR kc ocscakacreo ure

+h OO © COO 8 8.88.6 6

Aeocrve Te a aN ee we

1856 (1962)...

“see

Page

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

WILLIAM MELVIN WHITE,

Petitioner,

VS.

STATE OF FLORIDA,

Respondent.

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 1, 1982, rehearing having been denied July 8, 1982.

CITATION TO OPINIONS BELOW

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

55,875 is reported as White v. State, 415 So.2da 719 (Fla. 1982) and

is set out at pages 6a-8a in the Appendix hereto. Although rehearing

was denied by the Supreme Court of Florida, theoriginal opinion

was modified on rehearing. Accordingly, the original opinion and

the order on rehearing are set out at pages la-4a and 5a respectively

in the Appendix.

JURISDICTION

The judgment of the Supreme Court of Florida was filed

on April 1, 1982, and petitioner's timely motion for rehearing

Was denied by order dated July 8, 1982. (As noted, the order

denying rehearing is set out at page 5a of the Appendix). On

August 27, 1982 Justice Powell signed an order extending the time for

filing the petition for writ of certiorari to and including October

6, 1982. Jurisdiction of this Court is invoked pursuant to 28

U.S.C. $1257 (3), petitioner having asserted below and asserting

herein deprivation of rights secured by the Constitution of the

United States.

a

» AND STATUTORY

iS INVOLVED

1. This case inv es the Eighth and

to t he “Oo! stitution of the I ited tates.

2. This case further involves Section 921.14

Statutes (] PTT) ‘ t t a t< f it or ] fe

for pital felor ; further t t é

Beca ( of t é tn, t ¢ ¢ t¢ t ft t ‘

a ‘ sy -

y Liki y ’ M { t

Mae ( ford ( t te]

. ,

‘ ra ret ‘ ‘

. ,

{ft 466, 4 i ‘ P ‘ ‘ ,

+ ‘ ‘

t ] th r

M t ciy t tit ( sf 44)

( + > ae tate, { ,.

tat : “he t Ve

Pp! I y | h t ‘ t i ; M é.

it t :4 oM. ? } i Mae

left a bar l ] P t y t five

ie } j 1 M } 1 t.] } 8],

192). Ms. Crawford and her c s went to a houss

where the etitioner 1d ne earlier in the « ning (

.

pon the group's arr rl at ¢} ise, Mar woke

and informed him that Ms. Crawford was the re, that she

talking about liking Black people at the bar, and that

she "ought to be trained by a b

responded to DiMarino's overtur

Ithe letter "R", followed by tl

unch of us." (R

na iM ;

e, and VimMarino,

4

74)

Smith,

le appropriate page numb

used to designate references to the Record on A

Supreme Court of Florida,

2 ;

See Smith v. State, 403 So.2d

933 (Fla. 1981)

-~2-

Pp

peal b

,

'

( ’

‘

fy ‘

yt ‘ 4

, ‘

LOG,

Ln

had

as a

Petit

and

ers,

efore

endments

orida

‘

”

©,

+

|

r

’ ‘

’

1 O¢

,

. :

r] do

290).

tit ner

} I

been

result

ioner

Petit

Petitioner

wil

t }

i

]

e

be

joined together in beating Ms. Crawford

DiMarino

and as they left,

ins

and

Petitioner

tructions by Smiths

7 TMP.

escorted

Smith)

Ms.

said he

Crawford to

didn't

(R 475-477).

a ¢cazr

want

(R

Thereafter,

480-482),

according to DiMarino, were given the following

, 3

any witnesses, that he didn't...

if we were going to take care of

business, not to run a sloppy act.”

(R 482) DiMarino understood this as an ler “to take Gracie Mat

plead t + . ‘. } + = " ' A ‘ 3 ' a . 1 . ws . ‘

Crawford qd to kill her. (R 484)” DiMarino then drove Ms. Cra rd

tO a re te irca i I i€ nty vhere ’ ae t ng to DiM ino,

he ind Petit er ¢ k Ms. rawf i out of the car, Petit er

t bed Ms. Crawford in the chest ij cut her throat, i he a]

cut her throat (R 485-486, 490-492).

ko t he eo ré no ¢ they witr es to the ki! »f

Ms. Crawford (R 43-544), Mat e test iy against etitioner

was critical to the State’ ‘ wever, bstantial « i :e

was presented to call int lest mn DiMarino’s truthful Se

For example, DiMarino’s brother testified that iMaris itted

to him the day after the j e that he (DiMarino) 1d killed

Ms. Crawford by stabbing her and itting ‘r throat (R 605). Wi f

1lso for q his rother that Petitioner ; with } n thi

happe¢ ad, DiMarino inferred that Petitioner 1d done nothing

be e he w ) toxicated (R 613). DiMarino testifis that

he had been arrested forty or fifty ¢t (T 657-658, 667), and

that he could remember !} ng convicted of felonies (rape, robbery,

burglary, drug-related offenses, wea; s offenses, and : ting

arrest) five to ten times (R 674-575). Moreover, DiMarino admitted

that he would readily lie when lying served his interest.

. "QO... You are wavering as to whether or

not you consider yourself a truthful

person, is that a correct statement?

A. [DiMarino} Yes.

Q. And you say you are prone to tell

lies, is that a correct statement?

A. Yes.

Q. And you tell the truth only where you

feel like it?

, See emery : Seay ; ,

This order from Smith had great significance to DiMarino, for Smith

was the "regional enforcer" for all the chapters in Florida of

motorcycle club to which Smith and DiMarino belonged (R 483).

regional enforcer, Smith's job was ‘to watch over and make sure

-3-

the

As

§

A. Yes.

Q. And you really don't care whether you

tell a truthful statement or a falsification,

do you?

A. It depends on the circumstances.

Q. That is what I was getting to. Since

you are prone to telling lies, you tell

the truth only when it suits your fancy, so

to speak?

A. r¢ Sa.

(R { 7 6) 111 ly \iMayz > ee ¢ { ad that he had re } j i

bar 1 th the State t it ] I for } t< t ’ t he

ent ‘ of f r¢ ’ for t ther charge facing } d

‘ j + ly wit? } ‘ f i fte n CPAY ‘ y hy 4

+ r j ‘ j er ‘ } tor ; ’ ‘ ra? Cy iT { 1( 9 ‘ ae

+} } ‘ +} is ¢ j C, mar 1? r ton ‘ ‘ Y

of 4 t f ‘ irder { ] 2) j nded that he } ent |

to death (R 827, 1629). he trial ( liately i ia th

ence Ue (} 832) i } filed f i) is yf fact in mT rt of t he -

, 4

ter t ys later (R 64 650). he Supreme Court f lor 1

stair + tie I t n of the t +f eath < tirely n

the f } y ry de ript € 4 alty roceed P

” ‘ ry 7 1 ly rs ice ad the

tion of the death sentence. he

tr 1) tf f nd three i ravating factor

3a » +s j , 4 de efor. [f ty te,

etting ut + he findir + itted. ] No

testi y was | ented of any mitigating

32 tances, tatutory or nonstatutory, but

the trial ige f nd the mitigating cir m=

tance of no previous felony convictions.

We are satisfied that the trial idge

weighed the aggravating circumstances against

this and any other mitigating circumstances

in pronouncing sentence. The findings of

the trial judge are supported by the evidence,

and his judgment should not be disturbed.

In affirming the sentence we are fully aware

. 2

that DiMarino escaped with a conviction of a

third-degree murder. While this is fortunate

for him, it does not require the reduction of

White's sentence. White was the executioner,

and his sentence is warranted.”

White v. State, supra, 415 So.2d at 720-721 (Appendix filed herewith,

pp. Ja-@8a).

Footnote 3 continued:

trouble starts, he intervenes or if he wants something taken care of,

he has it taken care of [] [o]r, he takes care of it himself." (Id.)

‘the judge found the existence of three aggravating circumstances

{the murder was committed in the course of committing a kidnapping,

Fla. Stat. 921.141 (5) (d); the murder was committed to disrupt or

REASONS FOR GRANTING THE WRIT

I.

IN AFFIRMING THE IMPOSITION OF PETITIONER'S

SENTENCE OF DEATH, THE FLORIDA SUPREME COURT

HAS ADOPTED SUCH A BROAD AND VAGUE CON-

STRUCTION OF THE "HINDER ... GOVERNMENTAL

FUNCTION" AGGRAVATING CIRCUMSTANCE AS TO

VIOLATE THE EIGHTH AND FOURTEENTH AMENDMENTS.

One of the aggravating circumstances provided for the

sentencer's consideration in a Florida death penalty case is

whether “[t]he capital felony was committed to disrupt or hinder

the lawful exercise of any governmental function or the enforce-

ment of laws." Fla. Stat. $921.141 (5) (g). The trial judge

found this circumstance in Petitioner's case upon an assumption

that the motive in killing the victim was “to escape detection

ind punishment for the crime of aqgravated battery" previously

committed against her (R 1649). The Florida Supreme Court's

approval of the application of this aggravating circumstance in

Petitioner's case represents such a broad and vague construction

of this circumstance that there is no principled way to distingi

the cases in which it is present from those in which it is not.

Accordingly, this aggravating circumstance fails to channel

sentencing discretion as required by the Eighth ana Fourteenth

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

held that a death penalty statute's aggravating circumstances

must be sufficiently limited to provide a principled basis for

determining the presence of the circumstances in some cases and

their absence in others. Although the state courts remain free

to develop their own limiting constructions of aggravating circum-~

stances, *the limiting constructions must, as a matter of Eighth

Amendment law, be both instructed to sentencing juries, id. at

428-429 and consistently applied from case to case.id. at

429-433. In Godfrey, the Court examined the use of one particular

Fuotnote 4 continued:

Fla. Stat. $921.141 (5) (g); the murder was especially heinous,

atrocious, or cruel, Fla. Stat. $921.141 (5) (h)) and one statutory

mitigating circumstance [no prior felony convictions, Fla. Stat.

$921.141 (6) (a)).

put presumably, only if such constructions are consistent with

each other. See Godfrey v. Georgia, at 43l.

Sa

11sh

aggravating circumstance. It first found the jury instruction

concerning this circumstance deficient for failing to limit

the circumstance in any meaningful way. Id. at 428-429. The

Court then examined the facts of the case and determined that,

while the Georgia Supreme Court had developed three “separate

but consistent” criteria limiting the application of this circum-

stance, “[t)he circumstances of this case ... do not sat isfy

the criteria laid out by the Georgia Supreme Court itself...."

Id. Be 432, 432. Since the Georgia courts had failed to keep

thi d ra it t ¢ ‘ t ce t im the } is determi ed by ¢

presence of specific facts, the circumstance did not guide dis-

cretion i the death sente e was set aside

tit é bmits that the Florida Supreme Court's

Ippr 11 of the application of Florida's "(5)(g)" aggravating

ciré tance n } e has ilarly unleashed sentencing

qj retion with re ect to this circumstance.

As letailed n the Stat nt of the Case, the charg

igainst Petitioner included his participating in an alleged

iggravated battery of the icti ior to her being killed.

Shortly after the battery, the vict) was transported el owhere

ind kill 1. ne ¢ ‘ e licated that the ictim’s murder wa

othing more than the continuation of the battery, motivated by

the same racial and sexual animus which had motivated the

battery in the first place. The only evidence possibly giving

rise to the trial judge's finding that the victim was killed in

jer to prevent “detection and punishment for the crime of

aggravated battery” (R 1649) was the statement by Guy Smith that

“he didnt't want any witnesses, that he didn't ... if we were

gZoing to take care of business, notto run a sloppy act." (R 482)

On the basis of the Florida Supreme Court's construction of the

(5) (g) aggravating circumstance, both prior to and since the

decision in Petitioner's case, this evidence does not satisfy

the criteria developed by the Florida Supreme Court to limit the

application of this circumstance.

Similar to the (b)(7) circumstance in Godfrey, a finding

of the (5) (g) circumstance in Florida [that "[t]he capital felony

was committed to disrupt or hinder the lawful exercise of any

governmental function or the enforcement of iaws"] does not

.

———— ll

standing alone,

impl{y]

in

any

infliction

herent restr

of the death

aint on the

sentence."

arbitrary and capricious

Godfrey v. Georgia, supra, 446 U.S. at 428. Any homicide could

reasonably be characterized as hindering the enforcement of

laws since en homicide are

by the elimination of the person who is generally the best wit $

the victim of the } icide, In jering the related (5) (e)

aggravat 1 ? t ce i*itihe <« pital fe) ny was itted ¢

the f pose of : t j arrest .... J, tI

< 4 + > ¢ ] } t f the

it t he ‘ t f t} t igh ¢ ke ¢t ‘ hey

t yj in thes es.” ley v. State, 366 So.2d 19, (Fla,

1979). . e the r+ ‘ } is 1 the , tat

to be a able to the (5) (g) ci +» by imp] ic 1 it :

for it has held t t eit r (5) (g) or (5) (e), but not th,

‘ 4 1 ’ P ++ or . r to e] ite

wit es. elty v. State, 402 .2d 1 9, 1164 (Fla. 1981);

White v. State, 4 .2d 331, (Fla, 1981); Francois v. State,

407 2a ¥ } ( ¥ } 3 erg i tate, 417 1 639,

643 (Fla. 182) triking one f the two t es u

7 roper l he. n th (5) (g) and (5) (e) have } n

f 1 on the ba: f the t for the } being to

eli ate a witness]. f é Vv. State, 411 So.2d 165, 168 (I A

1982) [u; Iding (5) (g) when the } icide was cx itted in

rder to eliminate witnesses to a robbery).

: While the Riley limiting criteria may be equally applicab]:

to (5) (e) and (5) (g) when there are facts tending to show that

the homicide was tivated by the elimination of a witness, that

limitation is irrelevant to Petitioner's case, for the trial

court found that the homicide was not committed to eliminate a

witness and thus avoid arrest. Specifically the trial court found

"e) The murder of Gracie Mae Crawford

was not comnitted for the purpose of avoidig

or preventing a lawful arrest or effecting

Although it may be

an escape from custody.

argued that the crime was committed for the

purpose of avoiding or preventing a lawful

arrest by hindering law enforcement officers

from discovering the commission of an aggravated

battery by Smith and his co-defendants and

avoiding punishment and further that the

murder was accomplished to eliminate the victim

of their crime, the Court has taken the con-

struction of this circumstance most favorable to

the defendant and finds that these facts would

be more appropriate under circumstance

(g) below."

(R 1648-1649). In his findings neerning “cir stance (g),”"

the trial " e found only the following, at R, 1649:

" ) +} ' r of rac e Mae Cr iwford

wa tted to 1S! t or hinder the

f cet ‘ ¢ t WS, L1e@e,p to ¢ < ipe

let tion and hment for the t rf

3 i { i batt rye See cir tance (e)

} e. Circu tance “g" is applicat le.”

With t} e f ings, the trial e clearly did not til e

the Riley criteria, fo e did not find, as re ired by iley,

“very strong” proof of “the recu ite intent to id arrest,”

Riley . tate, pra, 66 So.2d at 22, by the el nat n of

6, ' 7 +} ; } ?

a witness. I ead, e trial judge applied an in prehensibly

ra ie ta lard which, on the basis of ! s written f1 lis 38, Cl ld

be pl ed henever 2 } cide iI llowed in iqaravated } ittery to

to the ictim, regardless of the critical limiting ftactor in

Florida of the defendant's motive in committing the subseauent

} icide, cf. Mi endez v. St ite, ipra cP) is me chanic i]

application of the tatute would divert the life-and-death cho

statute seems to reauire.")

The only other limiting criterion which the Flor ida

Gindeed, the trial judge could not have made such a finding, for

the only evidence relevant to whether the homicide was committed

“to eliminate Ms. Crawford as a witness, the statement by Guy

Smith, tended to show only that “if [Petitioner and DiMarino]

were going to take care of business {t.e. kill Crawford],” they

should be sure she died so as not to be a witness against them.

(R 482) (emphasis supplied). Nothing in this statement by Smith

suggests what Petitioner's motive may have been in killing

Ms. Crawford. Moreover, even if it were an accurate reflection of

Petitioner's state of mind, it would show at most that if

Petitioner were motivated to kill Crawford, he should be sure he

killed her. Even in this light, the evidence cannot be said

to meet Riley's requirement of very strong proof of the intent

to kill in o:der to eliminate someone as a witness. There was

no such proof. and such a motive cannot be assumed. Menendez v.

State, 368 So.?d 1278, 1282 (Fla. 1979)

$=

ee et

Supreme Court has applied to (5) (g) is equally inapplicable to

the facts of Petitioner's case. The Court has upheld the finding

of this circumstance when the homicide has interfered with

an ongoing, active governmental functi’.. See Tafero v. State

403 So.2d 355, 362 (Fla. 1981); Raulerson v. State, 358 So.2d 826,

833-835 (Fla. 1978); Songer v. State, 322 So.2d 481, 484 (Fla.

1975) {all involving the murder of a police officer er.gaged in

law enforcement duties), See also Antone v. State, 382 So.2da 1205,

1216 (Fla. 1980) [involving the murder of a potential witness

in an ongoing grand jury investigation, to prevent the witness

from testifying]. Unquestionably, there was no such ongoing

sovernmental function in which the victim in this case was a

participant.

Accordingly, since no limiting instructions were provi led

to the jury concerning this circumstance (R 822, 1624), and since

the circumstances of this case “do not satisfy the criteria laid

out by the [Florida] Supreme Court itself," Godfrey v. Georgia,

supra, 446 U.S. at 432, in Riley, Menendez, Tafero, Raulerson,

Songer, and Antone, supra, Petitioner's death sentence must be

vacated, for the sentencing tribunal's reliance on this aggrava-

ting circumstance unchanneled, rather than channeled, sentencing

discretion.

Il

PETITIONER'S DEATH SENTENCE WAS IMPOSED

IN THE TRIAL COURT AND UPHELD IN THE FLORIDA

SUPREME COURT WITHOUT "THE TYPE OF

INDIVIDUALIZED CONSIDERATION OF MITIGATING

FACTORS ... REQUIRED BY THE EIGHTH AMENDMENT

IN CAPITAL CASES," LOCKETT V. OHIO, 438 U.S.

586, 606 (1978).

In direct violation of Lockett v. Ohio, 438 U.S. 586 (1978),

the consideration of mitigating circumstances by both the jury and

the judge at Petitioner's trial was limited to the consideration

TWwhile Petitioner submits that the principle of Stephens v.

Zant, 631 F.2d 397, 406 (Sth Cir. 1980), reh. denied and

modified, 648 F.2d 446 (5th Cir .1981) requires the vacation of the

death sentence and the provision of a new sentencing trial despite

the Florida courts' reliance on two other aggravating circumstances,

the Court may wish to withhold its final order pending resolution

of Stephens before this Court. Zant v. Stephens, _U.S.___s

102 S.Ct. 1856 (1982).

-9=

of only those factors enumerated in the Florida death

penalty statue, Section 921.141(6), Florida Statutes (1977).

There was evidence of non-statutory mitigating

circumstances which could not, as a resuit, be considered in

determining whether Petitioner would live or die. The

operation of the Florida death penalty statute in

Petitioner's case thus “prevent[ed]) the sentencer... from

giving independent mitigating weight to aspects of

{Petitioner's]) character and record and to circumstances of

the offense proffered in mitigation” and created “the risk

that the death penalty [was] imposed in spite of factors

which [called] for a less severe penalty.” Lockett v.

Ohio, supra, 438 U.S. at 605.

Both the jury's and the judge's consideration of

mitigating circumstances was confined to the seven factors

enumerated in the Florida death penalty statute [Fla.

Stat. 921.141(6)). The instructions to the jury reasonably

conveyed to the jury that they should consider only the

seven statutory mitigating circumstances. With respect to

aggravating circumstances, the jury was instructed that

"(tJhe aggravating circumstances

which you may consider are limited

to such of the following as may be

established by the evidence....”

(R 821) And as to mitigating circumstances, the jury was

instructed that

“(tlhe mitigating circumstances

which you may consider, if estab-

lished by the evidence, are these:

{listing only the seven statutory

mitigating circumstances)."

(R 823) The parallel syntax in which these instructions

were given, coupled with the absence of an instruction that

the jury could consider mitigating circumstances not

enumerated, could have been interpreted by a “reasonable

juror," Sandstrom v. Montana, 442 U.S. 510, 514 (1979),

to preclude the consideration of any non-enumerated miti-

-10=

(

: 2e Washi - Watkin F.2

gating factor.® Sea Hashington v. Watkins, 655 @

1346, 1369-1376 (5th Cir. 1981) (Unit A), cert.’ denied,

complete __.5 102 S.Ct. 2021 (1982).

In addition to limiting the jury's consideration

of mitigating circumstances, the judge expressly limited his

own consideration to the mitigating circumstances enumerated

in the statute. His fact-findings concerned only the

presence or absence of the statutory mitigating circumstan-

ces (R 1649-1650), and his sentence determination was

expressly based only upon a consideration of the statutor-

ily-specified mitigating circumstances.

"This Court after weighing the

aggravating and mitigating cir-

cumstances finds that sufficient

aggravating circumstances exist

1S enumerated in Florida Statute

921.141 (5) to require imposition

of the death penalty, and that

there are insufficient mitigating

circumstances, as enumerated in

sub-section 6 [of the statute)

to outweigh the aggravating cir-

cumstances."

(R 1638-1639)

Had the jury's and judge's consideration of

mitigating circumstances not been improperly circumscribed,

substantial mitigating circumstances, not encompassed with-

in the statutory factors, were in evidence and available

for consideration. For example, the disparate sentence of

fifteen years’ imprisonment received by Richard DiMarino for

the murder of Ms. Crawford 1s a relevant factor in mitiga-

tion not covered by the statute that the jury was precluded

from considering under the charge. Also mitigating is some

doubt about Petitioner's guilt or at least about whether

Petitioner was the one who actually committed the killing.

DiMarino's version of the actual killing was wholly uncor-

roborated and, as recognized by the Florida Cupreme Court,

DiMarino was a “disreputable felon who had been granted

favors by the state and who admitted he lied when it would

‘suit (his) fancy.'" Smith v. State, supra, 403 So.2d

at 935.

8This reasonable impression would have been further re-

inforced by the judge's pre-sentencing-hearing instruction

that the hearing was “the part in which we talk about the

aggravating and mitigating circumstances..." (R803)

(emphasis supplied)

wth<

DiMarino thus had every reason to lie and had

demonstrated his propensity to do so, giving rise to a

very serious concern as to the equities between DiMarino

and Petitioner. Moreover, DiMarino's testimony was con-

tradicted by the statement he made to his brother admit-

ting that it was he who did the killing and not Petitioner,

, 9 If in fact DiMarino

who was too drunk to do anything.

va the actual killer, the sentencing disparity was especial-

ly acute and rjust. And if the iry retained some doubt

il it whether t , é itted the ict 11 killing, a

Joubt with tifi ition, ich a bt w ld be a

relevant factor for the ry te or ler n itigation.

ot # ith v. Balkcom, 660 F.2d sy 9-582 (Sth Cir.

(1981); ré Pl, gia, 44 Se Sea CAP et rt 2

were pelling mitigating factor t allowable for n

ideration fer the iry irge, id jisputably not con

lered by the idge.

n though a particular eath penalty statute ay

ot on it face pr lude the ideration of any mitiga

ting cir ta es °° the I kett rule also prevents any

application of ha statut na part }lar case which

does for ] e the nsidgerat n of ‘ fitigating evi

Jence. This rt wa ifr ted with thi ry situation

in Eddings v. Oklahoma, U.S. » 102 S.Ct. 869

(1982), in which the trial judge had refused to ec ider the

defendant's violent family history in mitigation, and his

refusal had been affirmed and comp led by the Oklahoma

Court of Criminal Appeals. Because the courts refused to

§ Petitioner's state of intoxication, while perhaps tot

rising to the level of a statutory mitigating circumstance

(Fla.Stat. 921.141 (6)(b),(£)), could certainly have been

considered in mitigation as well.

10 This Court has implied that the Florida Statute is such

a statute, although the statute is ambiguous on its face,

but the Court has never been directly presented with this

issue. See Proffitt v. Florida, 428 U.S. 242, 250 n. 14

(1976); Lockett v. Ohio, supra, 438 U.S. at 606 & n. 15.

-12-

consider relevant mitigating evidence, this Court set

aside FEddings' death sentence, for

"[j)ust as the state may not

by statute preclude the sen-

tencer from considering any

mitigating factor, neither may

the sentencer, refuse to con-

sider, as a matter of law, any

relevant mitigating evidence,

In this instance, it was as if

the trial judge had instructed

a jury to disregard the miti-

gating evidence Eddings prof-

ferred on his behalf. The sen-

tencer, and the Court of Crim-

inal Appeals on review, may

determine the weight to be

given relevant mitigating evi-

dence. But they may not give

it no weight by excluding such

evidence from their consider-

at ion. -

102 S. Ct. at 875-876 (footnote omitted) (emphasis in orig-

inal). Thus, despite facial statutory compliance with the

Fighth Amendment, a statute as applied in a particular case

may nontheless violate the Eighth Amendment if all relevant

mitigating evidence is not considered, for “Lockett re-

quires the sentencer to listen." 102 S.Ct. at 876 n. 10.

The failure of the jury and the trial judge to

consider all relevant mitigating evidence in Petitioner's

case, together with the Florida Supreme Court's approval

of such a limited consideration of mitigating circumstances,

thus fundamentally prejudiced Petitioner's right to an

individualized sentence determination,

IIlI.

THE FLORIDA SUPREME COURT'S

CURSORY, MECHANICAL “REVIEW"

OF THE AGGRAVATING AND MITI-

GATING CIRCUMSTANCES IN PE-

TITIONER'S CASE CONTRAVENED

. THE COURT'S DUTY TO "[GUARANTEE)

THAT THE [AGGRAVATING AND MITI-

GATING) REASONS PRESENT IN ONE

CASE WILL REACH A SIMILAR RESULT

TO THAT REACHED UNDER SIMILAR

CIRCUMSTANCES IN ANOTHER CASE,”

PROFFITT V. FLORIDA, 428 U.S.

242, 251 (1976).

The manner of review by the Florida Supreme Court

in the instant case did not meet the constitutional re-

quirements for appellate review enunciated in Proffitt v.

Florida, 428 U.S. 242 (1976). In upholding the constitu-

-l13-

tionality of Florida's capital sentencing scheme, this

Court relied upon the Florida Supreme Court's "{guaran-

tee] that the [aggravating and mitigating] reasons present

in one case will reach a similar result to that reached

under similar circumstances in another case." Id. at

251. The appeal procedure was thus seen as an integral

part of the task of a capital sentencing scheme: to re-

move arbitrariness from the imposition of the death sen-

tence, In this Court's view, review by the Florida

upreme Court served as a final check against the ar-

bitrary imposition of death sentences, for it was a

tem “under which the evidence of the aggravating and miti-

gating circumstances is reviewed and reweighed by the

Supreme Court of Florida ‘

to determine independently

whether the imposition of the ultimate penalty is warran-

ted.*" Id. at 253.

This Court believed that the Florida Supreme

Court would undertake “responsibly to perform its func-

tion of death sentence review with a maximum of rationality

and consistency." Id. at 258. And that each case would

be “conscientiously reviewed... to assure consistency, fair-

ness, and rationality in the evenhanded operation of state

law." Id. at 259-60. Upon this basis, Florida's form of

review was thus deemed to be equivalent to the " specific

form of review" provided by the Georgia Statute and, accord-

ingly, was of crucial importance to the constitutionality of

Florida's capital sentencing scheme. Absent this indepen-

dent, conscientious, and reliable method of review, the

Rlorida capital sentencing statute would be subject to the

arbitrariness and capriciousness condemned in Furman v.

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

The Florida Supreme Court's opinion in the

present case does not meet the assurances relied upon by the

Court in Proffitt. In its singular lack of any analysis,

despite serious constitutional questions, the Florida

Supreme Court's opinion fails to meet the court's

-14-

constitutional responsbility. Instead the court's opinion

suggests that it engaged in precisely the “cursory or

rubber stamp review" that this Court trusted would not

occur, Id, at 259. In Petitioner's case, the Florida

Supreme Court merely quoted the aggravating circumstance

findings by the trial court and stated that the judgment of

the trial court should not be disturbed. The court ignored

the finding of a mitigating factor by the trial court and

failed wholly to analyze the aggravating factors, |?

One aggravating factor was especially in doubt [sec.(5)(q)]

and presents a serious constitutional claim as to its def-

inition and standards for application, Point I, supra.

Substantial non-statutory mitigating circumstances were pre-

cluded from consideration in determining whether Petitioner

would live or die. Point IT, supra. Under these cir-

cumstances, the Florida Supreme Court has made a mockery of

the Court's reliance upon it in Proffitt. Such a practice

vitiates every principle governing death penalty cases since

Furman and should not be tolerated by this Court.

ll

In the court's original opinion, the trial court's find-

ing of a statutory mitigating circumstance (no prior felony

convictions) was totally omitted from its discussion of the

trial judge's findings. Appendix, p.3. When the court

corrected this aspect of its opinion on rehearing, Appendix

pp. 7-8, the correction was merely clerical, The court

continued to give no weight to any facts in mitigation,

-15-

‘ YY? OWN

‘ N

‘wet, t he expre ed herein, the Petiti ner,

William Mel White, } full ts that this Court

rant ) ¢ i rit t t ir1le

4 | } iti oR

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f. er

i | r¢ t of |

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; 4()7

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-16-

°

No. oe

IN THE

. RECEIVED

»- SS 3¢

OCT 12 1982

Or rict

UF Tile ¢ wait

SUPREME COURT OF THE UNITED STATES SUPREME COURT, U.S.

October, 1982

WILLIAM MELVIN WHITE,

Petitioner,

ATE Ot FLORIDA,

me k i nt e

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

The Petitioner, William Melvin White, who is now impri

in the custody of the Florida Department of Corrections, asks to

leave to file the accompanying Petition ‘or Writ of Certiorari

without pre-payment of « ts and to proceed in forma pauperis

pursuant to Rule 46 of the les of this Court. Petitioner has

proceeded in forma pauperis at all times in the state courts

below. Petitioner has attached hereto his affidavit in

substantially the form prese! ibed by Fed. Rules App. Proc., Form

and the Rules of this Court.

Respectfully subr itted,

RICHARD Loe JORANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Street/13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

"a

rand U. Wear az

BY Ar Ore ; Uy , et

RICHARD H,. BURR, III

Assistant Public Defender

.

Counsel for Petitioner

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

WILLIAM MELVIN WHITE,

Petitioner,

VS.

STATE OF FLORIDA,

Respondent ‘

AFFIDAV I T

T, WILLIAM MELVIN WHITE, being first duly sworn according

i

to law, depose and say, in support of my motion for leave to proceed

without being required to prepay costs or fees:

1, I am the petitioner in the above-entitled case.

2. fBecause of my poverty I am unable to pay the costs

of said cause,

3. I am unable to give security for the same.

4. I believe that I am entitled to the redress I seek

in said case,

5. The nature of said cause is briefly stated as

follows:

I was convicted of first deqree murder and sentenced to

death by the Circuit Court for Orange County, Florida, 1 appealed

the judgment of conviction and sentence of death to the Florida

Supreme Court and that court affirmed the judgment and death

sentence, I am now petitioning for a writ of certiorari to the

Supreme Court of the United States.

WILLIAM MELVIN WHITE

Duly witnessed and sworn to before me

this day of » 1982.

sree

NOTARY PUBLIC

, RECEIVED

IN THE OCT 12 1982

SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK

SUPRE! WE COURT, Us,

October Term, 1982 Pecans oonennens

WILLIAM MELVIN WHITE,

Petitioner,

VS.

STATE OF FLORIDA,

Respondent.

APFIDAVIT

I, RICHARD H. BURR, III, Counsel for Pet itioner and a

member of the Rar of this Court, depose and say:

1. That the enclosed Petition for Writ of Certiorari

was mailed first-class postage prepaid at the Main Branch of

Py United States Post Office, West Palm Beach, Florida on October

OA

61 1982.

2. That the petition for writ of certiorari was mailed

within the permitted time and was therefore timely filed under

Rule 28, Section 2, of the Rules of this Court.

Kideard l Run we

RICHARD BURR, III

sehen paps " publie Defender

15th Judicial Circuit of Florida

224 Datura Street/13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

SWORN TO and SUBSCRIBED before me

this bth day of October, 1982.

OWL 2 €. V/A COD O>.

NOTARY PUBLIC

Notary Public, Sic

My Commission Expires Sept. 23, Iyuv

Bonded Thre Trop few: trereece, tae.

NO. x 1982

IN THE

SUPREME COURT OF THE UNITED STATES SUFRES sie

October Term, 1982

WILLIAM MELVIN WHITE,

Petitioner,

.

I r I A,

; nt.

I } ("}

I, RICHARD H. BURR, IIT, hereby certify that I ama

of the bar f the rt f the rit tates, and that

I ) ‘ ‘ ed I ze ti Petit n for aw t of Cert ri t ther

with the Appe 11x, Motion for ive t lin! i P

ind Notics t Appea i ©, tC? } ‘ ine el for it

by de; iting ( 1 the ted tat i l, first ! t

prepaid, addr ed a f wae

P fant ai V eral

111 Georgia Avenue ‘

FE] ha Newton nick |] 1} j

West Pal Reach, Fl Lda 340)

Al] mre ‘ hired te bos ‘ ed have wa ‘ ed, 4 )

6th lay f tober, 982,

Aid and (\. geal: » ae

‘|

RICHARD } RRs kaa

15th Judicial Circuit of Florida

224 Datura Street/l3th Floor

West Palm Beach, Florida 4340]

(305) 837-2150

Assistant Public Defender

|

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

WILLIAM MELVIN WHITE,

Petitioner

—

R

E CEIVED

OCT 12 1982

OFFICE OF THE CLERK

SUPREME COURT, US.

‘

\TE OF | RIDA,

‘ nt.

N LC} OF} A NC}

rhe Clerk will ontey y 1)?>’* rahe 1 \ ol for

WILLIAM MI N WHIT! ho in this Court 1 Petitioner,

I rtify that I have been previ ly admitted to, and

im a member ng 1 standing of, the Bar of the upreme Court of

the United States.

“) ¥

j we

A | Ny ,

RICHARD H,. BURR, ITI

Assistant Public Defender

15th Judicial Circuit of Florida

224 Datura Street/l3th Floor

West Palm Beach, Florida 3340)

rhe person to be tified on behalf of Petitioner in this case

is the above insel,

a