# Appendix — Ernest Lee Miller v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1324%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1158 ## Text 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 - ’ ~ Defendans was convicted before the Circuit. Court, Pasco County, Wayne L Cobb, J. of first >> ~~ ~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. . 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. | 2 | j | |\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 | . -« each of you for that crime. Under Florida law, only two sentences are available 8a 10 | ' i i t i ; i } i } ; } H i 24 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 24 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 - *) 16 | | 24 eae ana mee «adore Seca: macros ating ot far as 17 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 7 24 || 19 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. ~*~ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1324%3A2. Public record. Not legal advice.