Appendix — Ernest Lee Miller v. Florida

1262 Fin

" Exnest.Lee MILLER, Appellant,

’.

STATE of Florida, hevaline,

No. $8795.

Supreme Court of Florida.

March 25, 1882 -

Rebearing Denied July 22, 1982

“ees

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~

Defendans was convicted before the

Circuit. Court, Pasco County, Wayne L

Cobb, J. of first<degree murder and was

sentenced to death notwithstanding jury

recommencates of fe imprisonmest, and

Gefencast appealed The Supreme Cour:

beid that: (1) although cellmate of defend.

ant bac acted 2s informant and bad spoken

with jead investigator of instast homicide

before defencan. made incriminating state

ment to codefendant, there was no error in

acmitting the statement, and (2) there was

BO ¢rTor in imposing death pexalty as dis-

parity in recommended sentences, with jary

which convicted codefendant of similar of-

fense recommending death, was not war-

rasted, .. - oe cogs

Alfiemed ge

McDonald, J. concurred with convic-

Sec and dissented with sentence with as

opinies ic which Overton, J. concurred

L Criminal Law emdizi@z) > >>

~~ ~As overheard by cellreate, defendant's

inculpavory statement to codefendant while

awaiting trial was not required t be sup

presses where although cellmate acted as

.

- a

informant in several drug cases and had.

spoken with lead investigator of inszan:

homicce before defendant made the state

ment the cellmate and the detective testi-

fied that be was not to draw defendant or

codefendant into talking about the homicide

charges and there was no showing that he

spied 2 position of trust regarding de

fendant or that he deliberately used his

1. APL VY. § 30K1). PlaComs. =k.

“ay . de

415 SOUTHERN REPORTER, 2d SERIES

ition to * . : 3 g inf a

¢3 ane .

2 Criminal Law @=1170(5)

There was no reversible error in failing

to allow defendant's psychologist to testify

to his rebabilitative canacity as effective.

ess of psychologist’s testimony, even with-

out the complainedof omission, was evi-

Genced by jury's recommendation of life

imprisonment

2 Criminal Law a= 933

Al:bougs jury, which found defendant

guilty of first-degree murder recommended

life imprisonment while another jury which

found codefendast guilty of the same of-

fense recommended death sentence) it was

BOt error to impose death penalty on both

defendants as on totality of circumstances

virtually no rezsonable person could differ

on the appropriateness of the death penalty

and disparity in recommended sentences

Lary S Hersch of Waller & Hersch

Dade City, for appellant = - tees

Fim Smith, Atty. Gen, and Michael J.

Kotler, Asst. Atty. Gen. Tampa, for appel-

“oe _. st So eo *

aoc ch. CO

Eynest Miller appeals his conviction. of

first<degree murder and sentence of death.

‘We’ have jurisdiction! and effirm beth the

* *

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~A grand jury indictad Miller and his step-

brother William Jent- for the death of a

young woman known only as “Tammy.”

The trial court severed. their cases for trial,

but all their pre- and post-trial proceedings

were combined. Their respective juries

convicted each defendast of firstdegree

murder as charged, but Miller's jury recom-

mended life imprisonment while Jent’s rec-

ommended a sentence of death. In a com-

bined sentencing order the trial court im-

. “ee

- . ; a ort

Sa

‘ ne “wo LER’

v. STATE: Fla. 1263

Che on, Pls. 414 Sand LS

posed the dezth penalty on both Miller and

Sear?

Miler urges nine points on appeal: six of

these points? are identical to points raised

is Jent v. State 408 So.2d 1024 (Fi2.1981),

and have been decided adversely to Miller's

ntestions in Jeri Even though Miller

asd Jest bac separate tials, Jest disposes

of Miller's arguments regarding the evi-

dence presented at his tial With the ex-

ception of two witmesse: who testified at

only one tria! each the same persons testi-

fied substantially the same at both toals

On reviewing the instant record, we find

Miller's conviction supported by competent

Substantial evidence :

Miller urges that the trial court erred is

faling t suppress a statement which Miler

mace to Jext while in jal awaiting tial

While listening <o a radio newscast 2bout a

man who hac confessed to severa! murders,

Miller asked Jent f be thought that person

bad “confessed to the one we did” A cell-

mate, lying on his bunk reading a book,

overheard Miller's question and, after a

suppression bearing, testified to this episode

at trial oo Gene

~ (1) The ceilmate bad acted as as infor-

Toast for the sheriff's department in several

Grog cases and bad spokes-with the lead.

investigator of the instant bomicide some

“time before Miller made his incriminating

Statement. This, claims Miller, made the

. ..celmate ac agest of the state, requiring

no evidence that the celmate “deliberately

used his position to secure” incriminating

information.” 47 U.S. at 270, 100 S.Cx at

2186. Unlike in Majope, Miller's comment

wes not “directly elicited by the State's

stratagem deliberately designed to elicit an

incriminating statement.” 290 So.2d at 229.

We find that.the trial court did not err in

Genying the motion to suppress and proper-

iy allowed the cellmate's testimony into evi-

dence.

(2) Miller's final argumests are that the

trial court improperly limited the considera-

ton of mitgatiog evidence and that the

cour. errec in overriding the jurs’s recom-

mencanon of life imprisonment. The trial

cour. gave the standard instruction on ag-

gTavasog and mitigating crcumstances,

Which this Court recently upheld against

the same claim of unconstitztionality as

mace in this appeal Peek v. Sista, 295

Seo2d 482 (Fla.l980), cert. denied, 451 US

954, 101 SCu 2036, 68 LEd2d 32 (1981).

We therefore find no merit to Miller's claim

of impropriety regarding the sentencing ip-

Stucsors. Additionally, we do sot find

reversivie error in the trial court's failing to

allow Miller's psychologist to testify as w

Miller's rehabilitative capacity. The effec

tiveness of the psychologist's testimory,

even without the complained-of omission, is

evidenced by the jury's recommendation of

fe imprisonment. .

kf i be : [3] In his sextencing order the . trial

-- feversal of gis convietion under United oom sound po substantive difference. be-

=, States v. Henry, 447 US. 26, 100 SCo tween Miller and Jent in their participation

t= TABS, GS L-Edad 115 (1990), and Malone *. is ze crime, Notwithstanding the jury's

sp, Sipe, 290 So.2d S35 (Fin 1980). We disa- recommendation, be found that Miller clezr-

oe ly deserved the death penalty. Mindful of

~ . Both the ceilmate and the detectives who the consctutional demand that the death

interviewed him testified that be wes in penalty must be imposed in a regular, ra-

i= Seueted net to draw Miller or Jest into tonal, consistent manner, the court also

~ talkiog about the charges agains: them found that folowing the recommendation

of Miler’s jury would result in an unwar-

ranted disparity in sentences. He therefore

*: There is no evidence in the record to show

= Sbat the cellmate occupied a” position of

sentenced both defendants to death, finding

gract new trial: (4) “weakness” of the evidence

“| Sust regarding Miler. Likewise, there is

“es

i Ssugacon; (5) constitutionality of § 921.-

14UCSKiy, (6) vieuum's identity. a

grand jerry temimony. ‘ .

@) sufficency of the evicence: () failure to oO : gta 0s

Cd

.

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PE init

oe

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dl

ne

2 The facts are set owt more fuly in Jest y.

~ Seate, 405 Sots 1004 (Fla.1$81).

~ <0) Getel of enmeee

we ©

2a

1264 Fa

that the mitigating evidence did not out

Weigh the evidence proved in aggravation.

The standard set out in Tedder v. State,

322 So2d 908, 910 (Fia.1975), bas been met

in this case. On the totality of the creum-

stances Virtually 20 reasonable person could

differ on the appropriateness of the death

penalty. See Johnson v. State, 393 So2d

1069 (Fia.i980). We agree that the dispari-

ty im the recommended sentences is not

warranted. See Barciar v. State, 343 So2d

1256 (Fia.lS77), cert denied, 439 US. 892,

99 S.Cu 29, 58 LEd 2d 237 (1978).

Finding no error, we affirm beth the

conviction and sentence.

t is so ordered. dha

SUNDBERG, C.J. and ADKINS, BOYD

and ALDERMAN, JJ., concur. .

McDONALD, J. coseurs with conviction

and dissents with sentence with an opinion,

in which OVERTON, J., concura

McDONALD, Justice, dissenuag.

I concur in affirming Miller's conviction

Dut dissent as to his sentence.

The horribie death irsposed upon the de-

cacent was the culmisation of-a drug and

alcoho! infested party in which the defend-

ants Miller and Jext particpated with other

young men asd women. This group had

8 @ Sar anc arrived at 2 swimming bole

Dear a railroad trestle where the victim, not

with or a part of the party, was encoun-

tered. A fight ensued between her and one .

of the girl friends, wberezpon Miller and

Jent interceded on behalf of the girl friend.

These two thereafter beat the victim into

helpless submission (Miller used ‘a stick

handed to him by one of the giris) following

which they threw her into the trunk of

Miller's car. Later she was raped by Miller,

Jent and two more mes while the girls

looked on. They doused ber with gasoline

and set her afire. One can hardly imagine

@ more brutal, senseless, gruesome or de-

plorable crime. It cannot be condoned in

the slightest. Sut it does not necessarily

follow that the penalty sbould be death,

particularily when the jury bas recom-

mended life.

3a

415 SOUTHERN REPORTER, 24 SERIES

In Tedder . State, S22 Sold 908 (Pla.

1875), this Court set out the standard which

must be met in order to affirm a trial

court’s sentence of death over a jury’s rec-

ommendation of life imprisonment

When all the circumstances surrounding

this homicide, in conjunction with the char-

acter and nature of the defendant are cop-

sidered, it cannot be said that the facts are

so clear and convincing that virtually no

reasonable person could differ that death is

appropriate. Therefore I feel the jury's

recommendation should be followed.

A psychologist testified that Miier has a

weak ego, that he is a “follower,” that he is

whatever his exvironment may be around

bim. He indicated that the violence that

comes from Miller is what Miller believes

others may want of him and tha: Miller

would be quite willing t go along with

therm. The psychologist indicated that if

the group were different so would be Mil.

jer's condect. By its recommendation, the

jury obviously considered this testimocy

and found Miller deserving of some mitiga-

tion of sentence. The defense presented no

such evidence at Jent’s sentencing proceed-

ing, and I Gnd that the evidence presented

in the two sentencing proceedings justified

the respective jury recommendations

It appears to me that the trial judge felt

that the circumstances of this homicide

Were so egregious that they overwhelmed

any other consideration. Still, there was

but one real aggravating circumstance (cru-

el, atrocious and heinous) and one admited

mitigating factor (no prior ciminal record)

The evidence is also susceptible of a finding

that this defendant's capacity to apprecate

the ciminality of his conduct or to conform

his conduct to the requirements of law was

substastially impaired.

1 would vacate Miller's sentence and re-

mand for imposition of a sentence of life

imprisonment with no possibility of parole

for twenty-five years.

*

OVERTON, J., concurs.

IN THE SUPREME COURT OF FLORIDA

THURSDAY, JULY 22, 1982

ERNEST LEE MILLER, **

Appellant, ** —_ CASE NO. 38,795

sbege ae Circuit Court Case No. 79-8

- - (Pasco)

STATE OF FLORIDA,

*?

’ ~s« #e” :

On consideration of the motion for rehearing fitec dy

rt? IS ORDERED by the Court that said motion be and the

same is hereby deniec

A True Copy . :

cc: Hon. Joseph E. Pittman, Clerk

' TEST: Hon. Wayne L. Cobb, Judge

Lester Bales, Jr., Esquire

Michael J. Kotler, Esquire

’ Sid J. White — :

Clerk Supreme Court

oe Dhl ban (estan 5

Deputy Clerk

CIRCUIT COURT OF THE SIXTH

IN TRE

JUDICIAL CIRCUIT IN AND FOR PASCO COUNTY

. FLORIDA

CASE NUMBER CF79~847

STATE OF FLORIDA

VS. JUDGMENT AND SENTENCE

ERNEST L. MILLER

You, ERNEST ..MiLLER , being now before

LARRY HERSCE. -,and

the Court, attended by your attorney,

you having (1) been tned and found guilty of

MORDER_IN THE FIRST DEGREE

t©

the Court Adjudges that you are guilty of said offense, and it is the Sentence of the Law and

the Court that you, ERNEST. 1. MILLER

be committed to the custody of the (1)

CORSECTTONS

is executed

and you are further Ordered to pav a fine and cost inthe amount of $

AADE crry Pasco County, Ponda,

DONE and ADJUDGED in open Court st

this the 39h gay of JANUARY A Zp Fsuant to eben 2.700 FCRP.

_<u0ge oo

(Fingerprints, if required by Section 30.2! Florida Statutes)

Lier THLMS GMT THLMS 4tincLies TAAEN SIMLLTANCOLS: 4

41 INGTRS TAAL SIVEL TANEOUS? ¥

| hereby certify that the above and foregoing fingerprints on this judgment are the Fingerprints of the

defendant ERNEST Lb. MILLER

and that they were opilaced

20th day of JANUARY

/

BOOK LL P 63

eRe RECE

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

STATE OF FLORIDA :

vs. s Case No. 7900848CFAES

ERNEST MILLER . 4. -

mS

- L—-=

ORDER a ee.

<<) S >. .

i

THIS CAUSE having come on to be heard upon the Defendant's

Motion for Grand Jury Testimony and the Court being fully advised

in the premises, it is hereby,

ORDERED AND ADJUDGED that said Motion is hereby denied in that,

the Court felt there was no proper predicate laid to have it either

transcribed or reviewed by counsel.

DONE AND ORDERED in Chambers, Dade City, Pasco County, Florida

tuts foo aw. | 1979.

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|\Copies to:

‘Larry S. Hersch, Esquire

iState Attorney's Office

Public Defender's Office

29U

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE

STATE OF FLORIDA IN AND FOR PASCO COUNTY

TT ieee oo

STATE OF FLORIDA,

:

$

Plaintiff, :

: —

-vs- : CASE NUMBER 7900848CFAES

: = 4

| BRNEST LEE MILLER, :

t Hs ff

| Defendant. : Ss

| PROCEEDINGS: SENTENCING

BEFORE: Honorable Wayne L. Cobb

Circuit Judge

Sixth Judicial Circuit

DATE: January 30, 1980

PLACE: Pasco County Courthouse

| Dade City, Florida

| APPEARANCES: Charles Cope, Esquire

and

Robert P. Cole, Esquire

Assistant State Attorneys.

Attorneys for Plaintif?

Larry 8. Hersch, Esquire

Attorney for Defendant

OFFICIAL COURT REPORTERS

3 PASCO COUNTY COURTHOUSE

DADE CITY. FL 33523

PH. (904) 367-5271

PEGGY ANN CROFT. DEPUTY

JOHN P. DILLON. DEPUTY

' 4

FRANK NEWMAN. OFFICIAL

LINDA |. GLIDEWELL. DEPUTY

Ja

Sn es

RN RCN OIA

particular case, you have seen the case, you have sat

here. The case is one where a heinous and cruel murder

was committed upon this girl, even evidence to indicate

that she was still alive when she was burned.

Judge, the State's pogition is that the aggravating

circumstances far outweigh the mitigating circumstances. |

If any case ever cried out for the death penalty, this

one does.

The State would request that this Court impose the

ultimate penalty in this case.

Thank you, Judge.

THE COURT: Thank you, Mr. Cole.

Mr. Jent and Mr. Miller, we need to fingerprint

you, and Mr. Jackson would you fingerprint Mr. Miller

and Mr. Jent, please? |

THE BAILIF?: ‘Zee, sir, Your Honor.

THE COURT: Mr. Miller and Mr. Jent, will you

approach the bench, please, with your counsel.

Ernest Lee Miller and William Riley Jent, pursuant

to the jury verdicts returned in your respective trials, |

this Court now adjudicates you each guilty of murcer in

the first degree of the girl known only to this Court as

Tammy. It is now the duty of this Court to sentence

J | .

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each of you for that crime.

Under Florida law, only two sentences are available

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Cram anitaonneane aemesavooenematn coer

to this Court; life imprisonment with a mandatory mini-

mum of 25 years, or death, but this Court may not impose -

upon either of you any sentence other than those two, |

one of those two.

A few years ago, the U.S. Supreme Court determined

that if the death penalty were to be imposed by the

states that the U.S. Constitution demandeé that it be

imposed only with regularity and only under predetermin-|

ed and objective standards and circumstances. The |

decision of whether or not to impose a sentence of death

must not be left to the discretion of either juries or |

judges. The people of the State of Florida through

their Legislatures have determined that the social wales’

of individual human life demands the imposition of |

@eath penalty in certain cases. Those cases are first

degree murder and sexual battery of children when cer-

tain established aggravating circumstances were found to

outweigh certain established mitigating circumstances.

A jury in both of your cases have already weighed

the circumstances. A jury for Mr. Miller recommended

life imprisonment. A jury for Mr. Jent recommended

@eeth. Thie Court has carefully weighed those circun-

stances also, and I think it is incumbent upon this

Court to tell you which circumstances it finds to be

aggravating and which circumstances it finds to be

4

9a

mitigating.

The first circumstance that the Court must consider

is that the crime, aggravating circumstances, is that

the crime for which the defendant is to be sentenced was

committed while the defendant was under a sentence of

imprisonment, that is not applicable in either of your

cases.

Second is that at the time of the crime for which

he is to be sentencec, the defendant had been previously

convicted of another capital felony or of a felony

involving the use or threat of violence to some person.

That also was not applicable in either of your cases.

Third is that the defendant in committing the crime

for which he is to be sentenced knowingly created great

risk of death of many persons. Again, that is not

applicable in either cf your cases, in the Court's

opinion.

Pourth is that the crime for which the defendant

is to be sentenced was committed while the defendant was

engaged or was an accomplice or commission of or attempt

to commit or flight efter committing or attempting to

commit any robbery, rape, arson, burglary, kidnapping or

aircraft piracy or unlawful throwing, placing or dis-

charging of a destructive device or bomb. I realize

that there was some argument about that, but this Court

10a

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does not consider that to be applicable either.

The fifth is that the crime for which the defendant |

is to be sentenced was committed for the purpose of

avoiding or preventing & lawful arrest or affect an

escape from custody. I suppose that it could be arsued

that it was that, the last part of the murder was to

prevent some detection, but this Court does not consider

that fifth aggravating circumstance to be applicable

after careful consideration.

cape capngnengisiane

Six is that the crime for which the defendant is to

be sentenced was committed for pecuniary gain and there

ide no indication of that. That is not applicable.

Seventh ise that the crime for which the defendant

de to be sentenced was committed to Gisrupt or to hinder |

lawful exercise of a governmental function or enforcement:

of law. That is not applicable, no evidence of that.

Next is that the crime for which the Gefendant is

to be sentenced was especially heinous, atrocious or

cruel. FEeinous means extremely wicked or shockingly

evil. Atrocious means outrageously wicked and vile.

Cruel means designed to inflict a high degree of pain

with other indifference or for the enjoyment of suffering

of others or pitiless. This Court certainly considers

that aggravating circumstance to be applicable to this

case.

lla

= = & &

Next is that the crime for which the defendant is

to be sentenced was committed in a cold, calculated and

premeditated manner without any pretense or mortal or

legal 4ustification. This Court also considers that

aggravating circumstance to be applicable. However,

there seems to be some overlapping -- some overlap in

this Court's mind even though in those last two, so this.

Court is only going to consider those last two as one |

aggravating circumstance.

Mitigating circumstances must also be considered by

the Court and they are first, that the Gefendant has no

significant history of prior criminal activity. That

mitigating circumstance appears to be applicable. There |

is no evidence that either ef vow have any significant |

history of prior activity.

Second is that the crime for which the defendant is |

to be sentenced was committed whiie the defendant was

under the influence of extreme mental or emotional dis-

turbance. I don't know whether the jury considered that

or not. Mr. Hersch has asked that that be considered

applicable for Mr. Miller. This Court does not find any

evidence in the trial or in any of the other proceedings

that would indicate that Mr. Miller or Mr. Jent was

under the influence of any extreme mental or emotional

disturbance.

The next is that the victim was participant in the

defendant's conduct or consentec to the act. That cer-

tainly is not applicable.

Fourth is that the defendant was an accomplice in

the offense for which he is to be sentenced that the

ffense was committeé by another person and the defen-

dGant's participation was relatively minor. This Court

can't honestly say that either of you were accomplices.

The evidence is clear that both of you equally partici-

pated in this crime. The Court does not consider that

to be applicable. :

Fifth is that the defendant acted under extreme

duress or under substantial domination of ancther person.

There was some indication that the -- at the sentencing

phase of Mr. Miller's trial by a psychologist that that

might be applicable, that Mr. Miller was easily led and

the inference at least is suggested that he was led by

Mr. Jent. I don't know what weight the advisory jury

gave to that in recommending a life sentence, but this

Court does not consider that that is applicable in this

case. There is no evidence that Mr. Miller had any

diminished function at all. As a matter of fact, Dr.

Merin testified that Mr. Miller's functional IQ was in

the average range and thecretical IQ was above the

average range.

The sixth is that the capacity of the defendant to

appreciate the criminality of the conduct or to conform

his conduct under requirement of the law was substan-

tially impaired. There is no indication that either of

you did not appreciate or were not able to appreciate

the criminality of your conduct nor that you were not

able to conform your conduct in this case to the eatndieel

ments of the law. This Court does not consider that

that is applicable for either of you.

The last mitigating circumstance that the Court

must consider is the age of the defendant at the time of

the crime. Mr. Miller is 23 years old and Mr. Jent is

28. You both are certainly of an age when that should

not be considered as any mitigating circumstance. Our

Supreme Court has said that it must be emphasized that

the procedure to be followed by trial judges and juries

in weighing these aggravating and mitigating circun-

stances is not a mere counting process of X number of

aggravating circumstances and ¥ number of mitigating

circumstances, but it is rather to be a reason judgment

as to what factual situations require the imposition

of death and which can be satisfied by life imprison-

ment in light of the totality of the as

present.

The goal in the law is regularity or uniformity in

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eae ana mee «adore Seca: macros ating ot far as

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the application of those avaiiable sentences.

Now, the Court, our Supreme Court in Florida has also

said that a jury recommendation under our trifurcated

death penalty statute should be given great weight in

order to sustain a sentence of death following 4

jury recommendation of life, the fact suggesting 4

sentence of death should be so clear and convincing

that virtually no reasonable person could differ.

That Court has also said that two coperpetrators who

participated equally in the crime would have dispaired

sentences if the jury recommendation were to be

accepted has to be a strong consideration. The Court

said it would have a hollow ring in the halls of

justice if the sentences in those kind of cases were

not equalized. This Court sat through the trials of

both Mr. Miller and Mr. Jent. The evidence in both

of those cases indicated that this was a particularly

heinous and a particularly deliberate crime to this

Court evidence is that this girl was beaten at one

site on the Withlacoochee River then transported to

Mr. Miller's home where the girl although unconscious

and I don't know whether she was feeling pain or not

or feeling embarrassment or what but then she was

subjected to the indignity of having her clothes taken

off and being raped by four people while other people

.

| a

7 were forced to watch while laying on the hood of a

> | car or the trunk of a car. She was then carried some

several miles into the Richloam Game Reserve where

she was then thrown on the ground and gasoline was

4

s | poured over her and there was an indication that Mr. |

«| Jent at Mr. Jent's trial that she then raised her arm

7 in an attempt to get up and that it was, that gasoline |

8 | was -~ she was knocked back down and then the

- | gasoline was ignited. This Court has examined most i

10 || not all of the death penalty cases reviewed by the

at | Florida Supreme Court since 1972. It would be hard to

2 |, imagine this Court finding perhaps only one in which

3 | the murder was pa more heinous, any more deliberate

a4 | than it was in this case. The Court therefore must fing

ts | that the aggravating circumstances or circumstances in |

16 | both of these cases outweigh the mitigating circumstances

17 | and it is therefore the sentence of this Court that |

is both Mr. Miller and Mr. Jent be put to death according |

9 to the law of Florida. i

: 20 | Gentlemen, you have the right to an automatic |

21 appeal to the Supreme Court of the State of Florida as |

2 a result of this sentence and adjudication. I am hereby

23 directing the respective attorneys to pursue that appeal

24 or to prosecute that appeal with dispatch and vigor

25 Girecting the Clerk to prepare the certify -- and certify

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the record of this trial to the Supreme Court with

60 days and directing the Court Reporter to prepare

the record of these proceedings including the

proceedings last night on motions for a new trial.

Mr. Holton, do you have any questions?

MR. HOLTON: I have no questions about the sentence,

Your Honor, I would request that Mr. Jent be allowed

some visitation with his family prior to his being

transported to the system. Visitation this date has

been essentially through a six by six inch glass window

at the jail. Since I think it's a fairly safe bet that

Mr. Jent will be a little hard to reach in the near

future, it would I think be a courtesy that would be

appreciated by myself and by Mr. Jent if the Court

would direct the sheriff to make arrangements for such

visitation under whatever security precautions the

sheriff feels necessary.

THE COURT: Mr. Holton, I would advise that I

wi-l investigate that and what 1 would like to do anc

I would like to do that if it's reasonably pe gs ible.

If 4t is; if it is, I will direct the sheriff to do

that. I am not doing it wijrhout some investigation

as to ,erious problems and I'm not aware of those at

this time.

MR. HOLTON: Yes, sir.

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THE COURT: I'll do that right away.

MR. HOLTON: Thank you.

THE COURT: Mr. Hersch?

MR. HERSCE: I would also make the same request.

Mr. Miller hasn't had close contact with his family

except during the trial proceedings when they saw him

passing back and forth. 1! would.

THE COURT: I will investigate that for both of

you and try to get some

few minutes. Anything else?

MR. COLE: No, sir.

THE COURT: Madam Clerk?

THE CLERK: No, sir.

THE COURT: This Court will

(Proceedings concluded.)

5 Oa

decision on that in the next

etand adjourned.

ee A: spearcesmaninanenmeetninit ety EST

rm

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY

cr79-847

STATE OF FLORIDA _- a

“ 3 Cog

WILLIAM RILEY JENT: Lo

EARNEST LEE MILLER : et

FINDINGS IN SUPPORT OF SENTENCES -

On November 15, 1979, Earnest Lee Miller was convicted by a

jury of the first degree murder of a girl known only as Tammy. That

same jury recommended a lite imprisonment sentence for Mr. Miller.

On December 20, 1979, a different jury also convicted William Riley

Sent of first degree murder in the same incident. That same jury

recommended a death sentence for Mr. Jent.

It is now this Court's duty to sentence th Earnest Lee Miller

and William Tiley Jent for the first degree murder of a girl known

only as Tammy.

In preparing <o exercise that duty, this court carefully reviewed

the Florida law relating to sentencing in capital cases ($3921.141,

Florida Statutes, and cases listed in appendix) and also carefully

reviewed the application of the principles of the United States

Constitution to sentencing in capital cases. Furman v. Georgia,

408 US 238, 33 L Ed 24 346, 92 S Ct 2726 (1972); Proffitt v. Florida,

$28 US 242. 49 L Ed 2d 913, 96 S Ct 2960 (1976); Dixon v. State,

283 So.24 1 (Pla. 1973).

This court presided over the trials of both defendants. A

pre-sentence investigation was not considered by this Court to offer

any assistance in this casg and was not requested? tt is not required.

Thompson v. State, 328 So.2¢ 1, 4 (Fia. 1976).

Florida law only allows two choices in imposing sentences for

capital felonies: lifé imprisonment with a mandatory minimum service

of 25 years before being eligible for parole, or death. $775.082,

Plorida Statutes.

The Tlorida Legislature has also established guidelines to

control and direct the exercise of the sentencing court's discretion

543

State Vv. Jent & Miller

CF79-847

Findings in Support of Sentences

Page 2

in selectine and imposing the proper sentence in capital cases.

$921.141, Florida Statutes. Under these guidelines, the Court must

consider and weich certain specified aggravating anc mitigating

circumstances.

From all of the evidence available, this Court finds the

following aggravating circumstances to exist in this case:

i $921.141(5) (h). Florida Statutes. This murder was especially

~-* ~~ *

heinous. atrocious and cruel. These two defendants, in concert. beat

-

Sled

his girl to unconsciousness, loaded her into an automobile, drove

her to an isolated home of the defendant Miller, took her out of the

ie ha

automobile still unconscious, stripped her of her clothing, threw

her onto the trunk (or hood) of an auto, subjected her to rape by

four men while requiring several other girls to watch, dumped her

unceremoniously back into the trunk of an auto, drove her to a

secluded spot in the Withlacoochee State Forest, drug her out of

the auto trunk, carried her into the bushes, pourec gasoline on her,

beat her back down when she triec to get up. then imsnolated her and

left her to the processes of final degradation--acts epitomical of

“wicked,” “sheckingly evil,“ and “vile.” Furthermore, these acts

demonstrated the defendants to not only be pitiless, but the public,

gang rape of this victim during the perpetration of this murder

demonstrated these defendants’ enjoyment of the suffering of the nameless

i aaiaeaaaiaiinaneeaiiee ee

victim. Even the imagination of Hollywood at its most macabre is

paled by the cruelty, the heinousness and the atrocity of this murder.

2. $921.141(S) (i). Florida Statutes. This crime was certainly

committed by these two defendants in a cold, calculated and premeditated

manner without any pretense of moral or legal justification. Counsel

for the defendants argued that the defendants must have thought the

girl was dead following the first beating on the bank of the

Withlacoochee River and that the remainder of their atrocities were

seemingly committed on a lifeless corpse. However, even ignoring the

testimony during the trial of the defendant Jent that the girl tried

5949

a

A es NaN Milk te

State v. Jent & Miller

CF79-847

Findings in Support of Sentences

Page 3

to sit up after the gasoline was poured on her, but before she was

these defendants could for over

ignited. Thais Court cannot believe

an hour drag this giri in and out of automobiles, strip her clothes

from her body and each rape ner while she was lying on the trunk of

an auto without sealising that she was warn, flexible and alive.

“he conduct of the defencants was $o callous in this case.

however, that these two aggravating circumstances seem to blend into

one.

None of the other aggravating circumstances are found to apply.

Having found aggravating csrcumstances to appiy, the Court must

consider any mitigating circumstances. Upon application of the available

evidence in this case to the statutory mitigating circumstances, the

Court finds as follows: :

1. §921.141(6) ia), Fierida Statutes. Tn¢ defendants have no

significant history ef prior criminal activity. This mitigating

circumstance applies to both defendants.

2. §921.141(6) (b), Florida Statutes. There was nc evidence

that this crime was committed while either defendant was under the

influence of any mental or emotional disturbance. This mitigating

circumstance does not apply to either defendant.

3. $921.141(6) (c), Florida Statutes. There was no evidence

that the victim in this case was a willing participant in the defendants’

conduct or consented to the acts culminating in her death. This

mitigating circumstance does not apply to either defendant.

4. §921.141(6) (4), Florida Statutes. ‘The defencants were

accomplices in this crime but the participation of each defendant was

equally aggressive and malevolant. Furthermore, no evidence indicated

that either defendant acted under any duress or any domination of

another person. At the sentencing phase of the trial of defendant

Miller, Dr. Sidney Merin. 4 psychologist, did testify that Miller was

a social follower. The jury may have been emotionally impressed with

this personality appraisal. The jury recommended life imprisonment

for Miller. But that appraisal does not square with be facts in

r

State v. Jent & Miller

CF79-847

Findings in Support of Sentences

Page 4

‘ this case. The eyewitness’ testimony indicated that each of these

defendants tried to out-atrocity the other in killing this sirl.

This Court finds that neither of these mitigating circumstances

applies to either of these defendants.

§. €921.141(6) (£), Florida Statutes. Dr. Merin testified that

the defendant Miller had the capacity to appreciate the criminality

of his conduct and to conform his conduct to the requirements of law.

The evidence supports this appraisal for both Miller and Jent. ‘They

both knew the criminality of their conduct and were able to conform

e their conduct to the requirements of the law. ‘The evidence indicates

they enjoyed their heinous abandon. This mitigating circumstance

does not apply to either defendant.

6. €921.141(6) (¢), Plorida Statutes. Jent was 28 years oid

and Miller 23 years cid at the time of this crime. Soth were of

sufficient age that this mitigating circumstance does not apply to

either.

After weighing the aggravating and mitigating circumstances

existing in this case and comparing them to the circumstances found

to be existing in most (if not all) of the death sentences reviewed

by the Florida Supreme Court since 1972 (see appendix), this Court

believes the aggravating circumstances of this case do cutweigh the

mitigating circumstances and a death sentence to be demanded for

both defendants.

The jury that tried defendant Miller recommended lite imprisonment

for him. The Jent jury recommended death. In view of the !tiller

recommendation, this Court is required to give “greater weight” to the

mitigating circumstances for him. Beckren v. State, 355 So.2d 111

(Pla. 1978). That jury weighed and considered the same aggravating anc

mitigating cinemas that have been weighed by this Court. Although

i this Court is not bound by the advisory sentencing verdicts, they do

represent a direct expression of the social conscience of an informed

: S51

PS ae ee ee

ese cmumumumrmareuesioneneeemmmonenncunnuneuunnemuanuanusnnnnennamaanin a

. ‘a

State v. Jent & Miller

CF79-847

Findings in Support of Sentences

Page 5

and responsible microcosm of our society. “In order to sustain

a sentence of death following a jury recommendation of life,

the facts suggesting a sentence of death should be seo clear

and convincing that virtually fo reasonable person could differ.”

Tecéer v. State. 322 So.2d 908 (Fla. 1975). See also Lamadiin v.

State, 305 Sc.2¢ 17 (Fla. 1974); McCaskill v. State, 344 So.2¢

1726 (Fla. 1977). “Ite stands tc reason that the trial court

must express mcre concise and particular reasons, based on

evidence which cannot be reasonably interpreted to favor mitigation,

to overrule a jury's advisory opinion of life imprisonment and

enter a@ sentence of death than to overrule an advisory opinion

recommending death and enter a sentence of life impriscnment."

Thomoson v. State, 328 So.24 1. § (Fla. 1976).

The evidence indicated no substantive difference whatsoever

in the participation of these two defendants in this crime. The

only evidence available to either the court or these two juries

that might be considered to distinguish these two defendants is:

(1) Jent was 28 years old while Miller was 23 years old, and

(2) Dr. Merin testified that Miller was a social follower, while

no psychologist testified for Jent.

. This Court has carefully considered these two possible

@istinctions Sut does not see any rational Sasis supported by

even a shred of evidence to consider either of these factcrs as

a mitigating circumstance. These defendants participated equally

in this crime.

Purthermore, of all the factual situations reviewed by

the Florida Supreme Court since 1972, in death cases, this Court

found only one approaching the cruelty, atrocity, or -heinousness

demonstrated in the case sub judice. (See Gardner v. State,

313 So.2d 675 (Fia. 1975))

“It must be emphasized that the

procedure to be followed by the trial

judges and juries is not a mere counting

552

*

State v. Jent & Miller

CF79-847

Findings in Support of Sentences

Page 6

process cf X number of aggravatincs

circumstances and Y number of mitigating

circumstances, but rather a reasoned

juégment as to what factual situations

require the imposition of death and which

can be satisfied by life imprisonment in

2aght of the totality of the circumstances

present.” State v. Dixon, 283 So.2d 1, 10

(Pia. i873}.

The United States Supreme Court has determined that if

che death penaity is tc be imposed by the states, the United

States Constitution demands that it be imposed with regularity,

rationality and consistency. Proffit v. Florida, 428 US 242,

49 L Ed 2d 913, 96 S Ct 2960. reh. den. 429 US 875, 50 L Sd

24 188. 97 S Ct 197, 97 S Ce 198 (1976); Purman v. Georcia,

408 US 238, 33 L Ed 2d 346, 92 S Ct 2726 (1972).

The jury for the defendant Jent has recommended death and

mis court finds that the weight of the accravating and mitigating

circumstances demand death sentences for both defendants.

Therefore, if the recommendation of the jury for the defendant

Miller were followed, that would result in two co-perpetrators

who participated equally in a crime having disparate sentences.

Tt would cause a hollow ring in the Florida halls of justice if

the sentences in these cases were not to be equalized. (See

Barclay v. State, 343 S$o.24 1266 iFla. 1977)}).

It becomes obvious from even a cursory review of the facts

Supporting sentences of death reviewed by the Ficrida Supreme

Court during the last eight years, that reasonable jurcrs have

recommended death sentences be imposed in cases much less heinous,

atrocious, cruel or deliberate than is found in this case.

Therefore after carefully weighing the aggravating and

itigating circumstances of this case, and considering the two

disparate advisory sentencing verdicts, and after comparing the

circumstances of this case with the circumstances existing in

the death sentence cases reviewed by the Florida Supreme Court since

1972 which are listed in the appendix, and after carefully considering

x24

ome oe ~

State v. Jent & Miller

Cr?o-847

Findings in Support of

Page

Senténces

*

the Constitutional standards espoused in Furman v. Georcia

~~ #

ST ea rat wl Heer é + mae 4 4 <

Supra, @ng F2Ve OFT 46G8, Supra, ae 28 the judgment of

th oe wats 4

this Court that both William Riley vent and Earnest Lee Mi!

_ 6 6 me

*

be put

& ~ 4 } } b

£ a giri Known only as Tammy.

Dade City, Pasco couss:

mrs OF J rw, om, o> ~*~ aad ‘

DONE AND ORDERED in Chambers,

“ees # & *

Veaa ce Ce Gee state

* i * eo ¢ ~

Leonard « Hoiten £

* " . ied P oe

Larry &. Hersch, Esqu

to death in the manner provided by Florida law for +t}

APPENDIX

Adams v. State, 341 Sco.2d 765 (Fla. 1976)

Aldridge v. State, 351 So.3d 942 (Fla. 1977)

Alford v. State, 307 So.2d 433 (Pla. 1975)

Alvord v. State, 322 So.2d 533 (Fla. 1975), cert. den. 96 S. Ce. 3234,

428 U.S. 923, 49 %. Ed. 2d 1226

Barclay v. State, 343 So.2d 1266 (Fla. 1977)

Barclay v. State, 362 So.2d 657 (Filia. 1978)

Brown v. State, 367 So.2d 616 (Pla. 1979)

Buckrem v. State, 355 Seo.24 lll (Fla. 1978)

Burch v. State, 343 So.é2d 831 (Fla. 1977)

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

Cooper v. State. 336 S$o.2d 1133 (Fla. 1976)

Darden v. State, 329 So.2c 287 (Pla. 1976). cere. den. 97 $. Ce. 1671

eon ~ -— -* €* * et od * 2 ge °

Quav wew ‘we - wh a oe me be

Elledge v. State, 346 So.3d 998 (Fla. 1977)

Foster v. State, 369 So.2d 928 (Filia. 1979)

Punchess v. State, 341 So.24 762 (Pla. 1976)

Purman v. Georgia, 408 U.S. 238, 33 L. Ed. 24 346, 92 S. Ct. 2726 (1972)

Garéner v. State, 313 So.2é 675 (Fia. 1975)

Gibson v. State, 381 So.2d 948 (Fla. 1

Gooe v. State, 365 So.24 331 (Fia. 1979)

Halliwell v. State, 323 So.2d 577 (Fla. 1975)

Harvard v. State, 375 So.24 8633 (Fla. 1978)

Benry v. State, 328 So.2d4 430 (Fla. 1976), cert. den. 97 S. Ct. 379,

429 U.S. 951, $0 &. Bd. 24 319

Hoy v. State, 353 So.2é 826 (Fla. 1977

Huckaby v. State, 343 So.2€ 29 (Fia. 1977), cert. den. 98 S. Ct. 393,

434 0.3. 920,° 54 L. Ed. 24 276

Jackson v. State, 359 So.2€ 1190 (Fla. 1978) ‘

Jackson v. State, 366 So.2d 752 (Fla. 1978)

Jones v. State, 332 So.2d 615 (Fla. 1976)

Kampf! v. State, 371 So.2d@ 1007 (Fla. 1979)

Knight v. State, 338 So.2d 201 (Fla. 1976)

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

LeDuc v. State, 365 So.24 149 (Fla. 1978)

Lee v. State, 294 So.2d 305 ({

sd |

i

tw

od

ire

od

de

o

0

"0

after remand 340 So.2d 474

McCaskill v. State, 344 $6.2d 1276 (Fla. 1977)

Meeks v. State, 336 So.2d 1142

Meeks v. State, 339 So.:2d 186 (Fla. 1976)

Menendez v. State, 368 So.2d 1278 (Fla. 1979)

Messer v. State, 330 So.2d 137

Milier v. State, 332 So.2d 65 (Fla. 1976}

‘ a 24

urdy v. State, 343 $c.2¢4 (Pia. 1977) sare en 98 s be 1$7 434

“2” s* ge ¢ | 53 #33 . “eee es wee

wee 84 € ee “a * a we * ee ame a4

ee 7 * = * a om,

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

Spinkellinch v. Wainwright, C.A. 578 F.2d 582 (1978)

State v. Dixon, 283 So.2d 1 (Fla. 1973)

Swan v. State, 322 So.2d 485 (Fla. 1975)

Taylor v. State, 294 So.2d 648 (Pla. 1974)

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

Thomas v. State, 374 So.2d 508 (Fla. 1979)

Thompson v. State, 328 So.2d 1 (Fla. 1976)

Washington v. State, 362 So.2d 658 (Fla. 1978)

Witt v. State, 342 Soe.2€ 497 (Fla. 1977)

yaar es

FLORIDA STATUTES

921.141 Sentence of death or life imprisonment for capital

felonies; further proceedings to determine sentence

(1) Separate proceedings on issue of penalty.--Upon

conviction or adjudication of quilt of a defendant of a capital

felony, the court shall conduct a separate sentencing proceed-

ing to determine whether the defendant should be sentenced to

death or life imprisonment as authorized by s. 775.082. The

proceeding shall be conducted by the trial judge before the

trial jury as soon as practicable. If, through impossibility

or inability, the trial jury is unable to reconvene for a

hearing on the issue of penalty, having determined the guilt of

the accused, the trial judge may summon a special juror or

jurors as provided in chapter 913 to determine the issue of the

imposition of the penalty. If the trial jury has been waived,

or if the defendant pleaded guilty, the sentencing proceeding

shall be conducted before a jury impaneled for that purpose,

unless waleet by the defendant. In the preceeding, evidence

may be presented as to any matter that the court deems relevant

te the nature of the crime and the character of the defendant

and shall include matters relating to any of the aggravating or

mitigating circumstances enumerated in subsections (5) and

(6). Any such evidence which the court deems to have probative

value may be received, regardless of its admissibility under

the exclusionary cules of evidence, provided the defendant is

accorded a fair opportunity to rebut any hearsay statements.

However, this subsection shall not be construed to authorize

the introduction of any evidence secured in violation of the

Constitution of the United States or the Constitution of the

State of Florida. The state and the defendant or his counsel

shall be permitted to present argument for or against sentence

of death.

(2) Advisory sentence by the jury.--After hearing

all the evidence, the jury shall deliberate and render an

28a

advisory sentence to the court, based upon the following

matters:

(a). Whether sufficient aggravating

circumstances exist as enumerated in subsection (5);

(b) Whether sufficient mitigating circumstances

exist which outweigh the aggravating circumstances found to

exist; and

{(c) Based on these considerations, whether the

defendant should be sentenced to life imprisonment or death.

(3) Findings in support of sentence of death.--

Notwithstanding the recommendation of a majority of the jury,

the court, after weighing the aggravating and mitigating cir-

cumstances, shall enter a sentence of life imprisonment or

death, but if the court imposes a sentence of death, it shall

set forth in writing its findings upon which the sentence of

death is based as to the facts:

(a) That sufficient aggravating circumstances

exist as enumerated in subsection (5), and

(b) That there are insufficient mitigating

circumstances to outweigh the aggravating circumstances.

In each case in which the court imposes the death sentence, the

determination of the court shall be supported by specific

written findings of fact based upon the circumstances in

subsections (5) and (6) and upon the records of the trial and

the sentencing proceedings. If the court does not make the

findings requiring the death sentence, the court shall impose

sentence of life imprisonment in accordance with s. 775.082.

(4) Review of judgment and sentence.--The judgment of

conviction and sentence cf death shall be subject to automatic

review by the Supreme Court of Florida within sixty (60) days

after certification by the sentencing court of the entire

record, unless the time is extended for an additional period

not to exceed thirty (30) days by the Supreme Court for good

cause shown. Such review by the Supreme Court shall have

29a

priority over all other cases and shall be heard in accordance

with rules promulgated by the Supreme Court.

(5) Aggravating circumstances.--Aggravating

circumstances shall be limited to the following:

(a) The capital felony was committed by a

person under sentence of imprisonment.

(b) The defendant was previously convicted of

another capital felony or of a felony involving the use or

threat of violence to the person.

(c) The defendant knowingly created a great

risk of death to many persons.

(d) The capital felony was committed while the

defendant was engaged, or was an accomplice, in the commission

of, or an attempt to commit, or flight after committing or

attempting to commit, any robbery, rape, arson, burglary,

kidnapping, or aircraft piracy or the unlawful throwing,

placing, or discharqing of a destructive device or bomb.

{e) The capital felony was committed for the

purpose of avoiding or preventing a lawful arrest or effecting

an escape from custody.

(f) The capital felony was committed for

pecuniary gain.

{g) The capitai felony was committed to disrupt

or hinder the lawful exercise of any governmental function or

the enforcement of laws.

(h) The capital felony was especially heinous,

atrocious, or cruel.

(i) The capital felony was a homicide and was

committed in a cold, calculated, and premeditated manner

without any pretense of moral or legal justification.

(6)- Mitigating circumstances.--Mitigating

circumstances shall be the following:

(a) The defendant has no significant history of

prior criminal activity.

Ifa

(b) The capital felony was committed while the

defendant was under the influence of extreme mental or

emotional disturbance.

(c) The victim was a participant in the

defendant's conduct or consented to the act.

(ad) The defendant was an accomplice in the

capital felony committed by another person and his partici-

pation was relatively minor.

(e) The defendant acted under extreme duress or

under the substantial domination of another person.

(f) The capacity of the defendant to appreciate

the criminality of his conduct or to conform his conduct to the

requirements of law was substantially impaired.

(g) The age of the defendant at the time of the

crime.

§ 90.801 Hearsay; definitions; exceptions

(2) A statement is not hearsay if the

declarant testifies at the trial or hearing

and is subject to cross-examination con-

cerning the statement and the statement

is: {a) Inconsistent with his testimony

and was given under oath subject to the

penalty of perjury at a trial, hearing, or

other proceeding or in a deposition.

§ 905.27 Testimony not to be disclosed; exceptions

(1) A grand juror, state attorney,

assistant state attorney, reporter, steno~

grapher, interpreter, or any other person

appearing before the grand jury shall not

disclose the testimony of a witness

examined before the grand jury or other

evidence received by it except when

required by a court to disclose the testi-

mony for the purpose of:

(a) Ascertaining whether it is

consistent with the testimony given by

the witness before the court;

(b) Determining whether the witness

is guilty of perjury; or

(c) Furthering justice.

*

SURVEY OF STATE RULES ON GRAND JURY TESTIMONY”

STATES WHICH BROADLY ALLOW ACCESS, ONCE GRAND JURY

WITNESS HAS TESTIFIED AT TRIAL

Pennsylvania: Commonwealth v. Brocco, 396 A.2d 1371 (Pa.

Massachusetts: Commonwealth v. Edgerly, 361 N.E.2d 1289 (Mass.

Indiana:

Colorado:

Jud. Dist., 491 P.2d 965 (Colo. 1971) (court

Super. 1979)

Commonwealth v. Kelly, 369 A.2d 438 (Pa. Super.

1976), aff'd, 399 A.2d 1061 (Pa.), cert. denied

and app. dismissed, 444 U.S. 947 (1979)

1977)

Commonwealth v. Liebman, 400 N.E.2d 842 (Mass.

1980)

Gunn v. State, 365 N.B-2d 1234 (Ind. App. 1977)

Marlett v. State, 348 N.E.2d 86 (Ind. App. 1976)

(when foundation laid and state gives "no valid

reason for non-production,” error to deny motion

to produce)

Antrobus v. State, 254 N.E.2d 873 (Ind. 1970)

(requires foundation that witness has testified

on direct, that “substantially verbatim” tran-

script of grand jury statement "is shown to be

probably within the control of the prosecution,

and previous statements relate to witness's

present testimony.” 254 N.E.2d at 876-77)

Parlapiano v. District Cou In

should ordinarily grant motion to disclose grand

jury testimony prior to trial, absent showing by

il

This Appendix reviews the apparent status of a defendant's

access to grand jury testimony of witnesses in the 41 states in

which controlling authorities were uncovered. It is not

intended to be an exhaustive review of case law in each state

but is intended as an aid to the Court.

32a

Michigan:

lowa:

Oregon:

Arizona:

Illinois:

Nevada:

California:

district attorney that it should not be

disclosed)

People Ex. Rel. Shinn v. District Court of and

for the Fifteenth Jud. Dist., 469 P.2d 732

(Colo. 1970)

Norman v. People, 496 P.2d 1029 (Colo. 1972)

People v. Duncan, 201 N.W.2d 629 (Mich. 1972)

People v. Wimberly, 179 N.W.2d 623 (Mich. 1970)

State v. Gartin, 271 N.W.2d 902 (Iowa 1978)

State v. Cuevas, 282 N.W.2d 74 (Iowa 1979)

State v. Hartfield, 624 P.2d 588 (Ore. 1951)

(particularized need exists to test witness's

credibility once a grant jury witness testifies

at trial)

State v. Casey. 460 P.2d 52 (Ariz. App. 1969)

("grand jury t#stimony must be made available to

a defendant when a request therefor is made

during the course of trial to cross examine a

witness for purposes of impeachment, refreshing

his recollection, or to test his credibility.”

460 P.2d at 54.)

State Ex. Rel. Ronan v. Superior Court In and

For County of Maricopa, 390 P.2d 109 (Ariz.

1964)

People v. Lentz, 304 N.E.2d 278 (Ill. 1973)

People v. Johnson, 203 N.E.2d 399 (Ill. 1964)

Shelby v. Sixth Judicial District Court, 414

P.2d 942 (Nev.), reh. denied, 418 P.2d 132

(1966)

People v. Sola, 200 Cal. App.2d 593,

Rptr. 327 (1962) (accused entitled by statute to

19 Cal.

copy of grand jury proceedings to prepare

defense)

33a

New Jersey:

Kentucky:

New York:

Connecticut:

Oklahoma:

People v. Pipes, 179 Cal. App.2d 547, 3 Cal.

Rptr. 814 (1960)

State v. Dimodica, 192 A.2d 825 (N.J. 1963)

State v. Cronin, 206 A.2d 914 (N.J. Super. 1965)

Faught v. Commonwealth, 467 S.W.2d 322 (Ky.

1970) (only when grand jury testimony is

reported is defendant entitled to a copy of it

on request)

Smith v. Commonwealth, 321 S.W.2d 786 (Ky. 1959)

People v. Baker, 75 A.D.2d 966, 428 N.Y.S.2d 353

(1980)

People v. Renner, 80 A.D.2d 705, 437 8.Y¥.8.24

749 (1981)

Gold v. Quinones, 37 A.D.2d 618, 325 N.Y¥.S.2a

294 (1971)

People v. Oldring, 42 A.D.2d 737, 346 N.Y.S.2d

14 (1973)

People vy. Monahan, 21 A.D. 76, 249 N.¥.S.2d 562

(1964)

People v. Surita, 18 A.D. 1064, 239 N.¥.S.2d 405

(1963)

State v. Canady, 445 A.2d 895 (Conn. 1982)

(statute enacted in 1981 on availability of

transcript to accused to use for impeachment,

attacking credibility or proving inconsistent

statements; access only under general supervi-

sory power of the court)

English v. District Court of Adair County, 492

P.2d 1125 (Okla. Cr. 1972) (defendants had right

under statute to grand jury testimony of

witnesses who testified against them)

34a

Cf: State Ex. Rel. Fallis v. Miracle, 494 P.2d

676 (Okla. Cr. 1972) (refusing to extend

coverage of statute to defendants charged by

information)

Minnesota: State v. Falcone, 195 N.W.2d 572, 576 n.8 (Minn.

1972) (defense attorney may discover grand jury

minutes after presentment, citing Minn. St.

§ 628.04)

New Mexico: State v. Vigil, 516 P.2d i118 (N.M. 1973) (no

requirement of particularized need for defendant

to obtain copy of grand jury testimony of witness

who has “actually appeared and testified.")

State v. Felter, 515 P.2d 138 (N.M. 1973)

(particularized need demonstrated by witness

testifying at trial) |

Vermont: Berard v. Moeykens, 326 A.2d 166 (Vt. 1974)

Vermont Rules of Criminal Procedure 16(a) (2) (B)

(effective January 1, 1974 -- disclosure to

defendant on request at appearance Or later

"the transcript of any grand jury proceedings

pertaining to the indictment of the defendant

or of any inquest proceedings pertaining to the

investigation of the defendant.")

Kansas: Kansas Code of Criminal Procedure, K.S.A.

22-3212, 22-3213.

State v. Humphrey, 537 Pp.26 155 (Kan. 1975)

(discovery provisions of K.S.A. 22-3213 should

be “liberally construed.")

State v. Campbell, 539 P.2d 329 (Kan.), cert.

denied sub nom. Docking v. Kansas, 623 U.S. 1017

(1975) (°K.S.A. 22-3213 provides that no state-

ment of a prospective state witness shall be

subject to inspection until the witness

35a

has testified at the preliminary hearing or on

direct examination at trial." 539 P.2d at 351)

Il. STATES WHICH ALLOW ACCESS ONLY ON SHOWING OF

PARTICULARIZED NEED, DEMONSTRATED INCONSISTENCIES,

OR JUDICIAL DISCRETION

Ohio:

Rhode Island:

South Dakota:

Florida:

Maine:

Maryland:

Texas:

State v. Greer, 420 N.E.2d 982 (Ohio 1981)

State v. Morris, 329 N.E.2d 85 (Ohio 1975),

cert. denied sub nom. McSpadden v. Ohio, 423

U.S. 1049 (1976)

State v. Benoit, 363 A.2d 207 (R.I. 1976)

State wv. Carilic, 307 A.2@ 773 (R.k. 1973)

(access not a matter of right but court should

grant motion where defendant demonstrates

particularized need)

State v. Kaseman, 273 N.W.2d 716 (S.D. i978)

Nelson v. State, 362 So.2d 1017 (Fla. App. 1978)

Minton v. State, 113 So.2d 361 (Fla. 1959)

State v. Cugliata, 372 A.2d 1019 (Me.), cert.

denied, 434 U.S. 856 (1977)

State v. Robbins, 318 A.2d 51 (Me. 1974)

Silbert v. State, 280 A.2d 55 (Md. App. 1971)

Chester v. State, 363 A.2d 605 (Md. App. 1976)

Hoffpauir v. State, 596 S.W.2d 139 (Tex Cr. App.

1980)

McManus v. State, 591 S.W.2d 505 (Tex. Cr. App.

1980)

Martin v. State, 577 S.W.2d 490 (Tex. Cr. App.

1979)

Dyche v. State, 490 S.W.2d 568 (Tex. Cr. App.

1973)

36a

Alaska:

Missouri:

Tennessee:

Washington:

Merrill v. State, 423 P.2d 686, (Alaska), cert.

denied, 386 U.S. 1040 (1967) (particularized

need must be shown for defendant to inspect

grand jury minutes -- absent here)

State v. Guelker, 548 S.W.2d 521 (Mo. 1976),

cert. denied, 431 U.S. 941, reh. denied, 434

U.S. 882 (1977) (review of grand jury testimony

only in discretion of trial juage; in camera

review showed inconsistencies on minor details

between trial testimony and police report

insufficient to permit inspection)

State v. Cusumano, 372 S.W.2d 860 (Mo. 1963)

(wide discretion of trial court to permit

inspection of grand jury testimony)

West v. State, 466 S.W.2d 524 (Tenn. Cr. App.),

cert. denied, (Tenn. 1971) (no blanket discovery

-- statute allows secrecy of grand jury proceeding

to be invaded to “check upon the accuracy of a

witness’ subsequent testimony" or “whenever

necessary to the attainment of truth and

justice.”)

State v. Beck, 349 P.2d 387 (Wash. 1960)

(affirmed trial court decision by equally

divided court), aff'd, Beck v. Washington, 369

U.S. 541 (1961), reh. denied, 370 U.S. 965

(1962) (defendant not entitled to copy of his

testimony before grand jury as a matter of right

-- "the extent to which such a transcript will

be made available to him is within the sound

discretion of the trial court." 349 P.2d at 396)

37a

Utah: State v. Faux, 345 P.2d 186 (Utah 1959)

(judicial discretion not abused in releasing

copy of grand jury transcript to defendant prior

to trial to prepare for impeachment of prospec-

tive witnesses)

Delaware: In Re Steigler, 250 A.2d 379 (Del. Sup. 1969)

(disclosure of grand jury proceeding may be

ordered by court “in circumstances where the

interests of justice require it" -- bail case.

250 A.2d at 382)

Hawaii: McMahon v. Office of the City and County of

Honolulu, 465 P.2d 549 (Hawaii 1970) ("Even under

@ most restrictive view, it is clear that a

defendant is under some circumstances entitled

to some part of the grand jury transcript." 465

P.2d at 550)

it. STATES DENYING ACCESS, EXCEPT UNDER VERY LIMITED

CIRCUMSTANCES

Arkansas: Arnold v. State, 20 S.W.2d 189 (Ark. 1929)

(defendant in murder prosecution had no access

to grand jury witness statements)

Alabama: Redus v. State, 398 So.2d 757 (Ala. App.), cert.

denied, 398 So.2d 762 (Ala. 1981)

Brager v. State, 380 So.2d 401 (Ala. App. 1980)

Stroud v. State, 325 So.2d 200 (Ala. App. 1975),

cert. quashed, 325 Se.2d 204 (1976) (no error

in refusing access unless State uses "to test

recollection, to impeach, or unless contradic-

tion is shown"; Alabama rejects Jencks)

Thigpen v. State, 270 So.2d 666 (Ala. App. 1972)

Sanders v. State, 179 So.2d 35 (Ala. 1965)

38a

Louisiana:

New Hampshire:

North

Carolina:

Idaho:

Wisconsin:

State v. Sheppard, 350 So.2d 615 (La. 1977)

State v. Martin, 376 So.2d 300 (La. 1979), cert.

denied, 449 U.S. 998 (1980), reh. denied, 449

0.8. 1119 (198i)

State v. Purrington, 446 A.2d 451 (N.H. 1982)

(improper for trial court to order transcription

of grand jury proceedings, thus defendant not

entitled to discovery of grand jury testimony)

State v. Booton, 329 A.2d 376 (N.H. 1974), cert.

denied, 421 U.S. 919 (1975) (grand jury minutes

not transcribed, thus impossible to grant

defendant's request for minutes)

State v. Jones, 210 S.E.2d 454 (N.C. App.

1974), cert. denied, 214 S.E.2d 435 (N.C. 1975)

(no error in denial of motion for transcript of

grand jury testimony because such testimony not

recorded in the state)

State v. Bullis, 472 P.2d 315 (Idaho 1970) (no

error in trial court denying request to make

transcript of grand jury testimony; secrecy of

grand jury proceedings must be maintained)

State v. Krause, 50 N.W.2d 439 (Wis. 1951)

Steensland v. Hoppmann, 252 N.W. 146 (Wis. 1933)

(inspection of grand jury minutes only allowed

"in the instances provided for by legislation

and permitted by the courts when necessary

to protect the rights of citizens in the

administration of justice." 252 N.W. at 148)

SURVEY OF STATE LAWS ON JUDGE/JURY ROLES

IN DEATH SENTENCE DETERMINATIONS

1. Jury Life Determination Binding

ARKANSAS Crim. Code §§ 41-1301.-1302 (1977) U

CALIFORNIA Penal Code §§ 190.3-.4 (Supp. 1982) U

COLORADO Rev. Stats. § 16-11-103 (Cum. Supp. 1981) JU

CONNECTICUT Gen. Stats. Ann. § 53a-46a (Supp. 1982) Cc

DELAWARE Code Ann. § 11-4209 (1979) U

GEORGIA Code Ann. § 17-10-31 (1982) U

ILLINOIS Ann. Stats. § 38-9-1 (Supp. 1982) U

KENTUCKY Rev. Stats. § 532.025 (1982) U

LOUISIANA Code of Crim. Proc. art. 905.8

(Supp. 1982) U

MARYLAND Ann. Code art. 27, § 413 (Cum. Supp. 1982) U

MASSACHUSETTS Ann. Code ch. 279, § 53 (1980) U

MISSISSIPPI Code § 99-19-101 (Cum. Supp. 1978) U

MISSOURI Crim. Code § 565.006 (Supp. 1982) U

NEVADA Rev. Stats. § 175.554 (1977) N

NEW HAMPSHIRE Rev. Stats. Ann. § 6:9.5 (Supp. 1981) U

NEW JERSEY Senate Bill No. 112 (1982) U

NEW MEXICO Stats. Ann. § 31-20A-3 (1982) U

NORTH CAROLINA Gen. Stats. § 15A-2000 (Cum. Supp. 1981) U

OHIO Rev. Code Ann. § 2929.03(D) (1982) U

OKLAHOMA Stats. Ann. § 21-701.11 (Supp. 1981-1982) U

PENNSYLVANIA Cons. Stats. Ann. tit. 42, § 9711 (Supp. |

1982); Pa. R. Crim. P. 1120 (1982) U

SOUTH CAROLINA Code Ann. § 16-3-20 (Cum. Supp. 1981) U

SOUTH DAKOTA State Laws § 23A-27A-4 (1979) a

TENNESSEE Code Ann. § 39-2404 (Cum. Supp. 1981) U

TEXAS Code Crim. Proc. art. 37.071 (1981) .

UTAH Crim. Code § 76-3-207 (1978) U

VIRGINIA Code § 19.2-264.4 (Cum. Supp. 1979) U

WASHINGTON Rev. Code Ann. § 10.95.050-.080

(Supp. 1982) U

WYOMING Stats. § 6-4-102 (1981) U

2. Jury Life Determination Not Binding

ALABAMA 1981 Acts, No. 81-178, §§ 8-9 A

FLORIDA Stats. Ann. § 921.141 (Supp. 1982) F

INDIANA Stats. Ann. § 35-50-2-9 (1979) U

3. Penalty Determination By Judges(s) Alone

ARIZONA Rev. Stats. Ann. § 13-454 (Supp. 1978)

IDAHO Code § 19-2515 (Cum. Supp. 1978)

MONTANA Rev. Codes § 95.2206.6 (1977 Interim Supp.)

NEBRASKA Rev. Stats. § 29-2520 (1975)

40a

NOTATIONS

U--Unanimous jury determination required for death sentence

C--Connecticut procedure: Statute does not specify whether

unanimous verdict required

N--Nevada procedure: If jury unable to agree on sentence,

three-judge panel determines sentence; panel can only impose

death sentence if three judges unanimously vote for death

T--Texas procedure: Penalty jury answers special questions on

deliberate nature of murder, probability defendant would

engage in future acts of dangerous violence, and (if raised)

lack of provocation by victim; 12 jurors required to answer

"yes" to each question for imposition of a death sentence;

10 jurors suffice to answer any question “no” and prevent

death sentence

A--Alabama procedure: 10 jurors required for death, 7 jurors

required for life

F--Florida procedure: Simple majority suffice i

either life or death : ’ : Se

4la

4 * a

CERTIFICATE OF SERVICE

I hereby certify that on this AON, aay of October,

1982, a copy of this Petition Por Writ Of Certiorari To The

Supreme Court Of The State Of Florida was mailed, postage

prepaid, to Michael J. Kotler, Assistant Attorney General of

the State of Florida, Park Trammel Building, 1313 Tampa

Street, 8th Floor, Tampa, Florida 33602.

Uk

Counsel for Petitioner