Petitioners Reply Brief — Ernest Lee Miller v. Florida

Office «Supreme Court, U.S.

FILED

pec 8 1982

ALEXANDER LU STEVAS,

CLERK

No. 82-5590

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

ERNEST LEE MILLER,

Petitioner,

.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT

TO THE SUPREME COURT OF TI

OF CERTIORARI

E STATE OF FLORIDA

—

REPLY BRIEF

Michael Sandler

(Counsel of Record)

Charles G. Cole

Rebecca L. Hudsmith

Diane F. Orentlicher

STEPTOE & JOHNSON

Chartered

1250 Connecticut Avenue, N. u.

Washington, D.C. 20036

(202) 862-2000

ATTORNEYS FOR PETITIONER

TABLE OF CONTENTS

TABLE OF AUTHORITIES . «+ «© + # «

ARGUMENT * * * * * * * * *

CONC LUS ION * * * „ * * * * * *

TABLE OF AUTHORITIES

Cases

Barclay v. Florida, No. 81-6908, cert. granted

5 U. F. L.. 3362 (November 8, 1302) 2 wo ss

Brady v. Maryland, $78 U.8. BO CIBER) « « 2 2

Chambers v. Mississippi, 410 U.S. 264 (1973).

uglas 011 Co. v. Petrol Stops Northwest,

„ * * * * „ * * * * * *

Eddings v. Oklahoma, 445 U.S. 104 (1982) . .

Gardner v. Florida, 430 U.S. 348 (1977) « « «

Green ». Georgiay 442 U.S. 95 (1979)

(per cur am * * * „ * * * * * *

Jencks v. United States, 353 U.S. 637 (1957)

Jenkins v. Georgia, 418 U.S. 8S CISTE) «4 « «

* * „ * * * * * *

Manhattan Life Insurance Co. Vv. Cohen,

Miller v. State, 415 80. 20 1262 (Fla. 1982) .

Raley v. Ohio, 360 U.S. 423 (1959)

— di -

* * * *

*

No. 82-5590

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

ERNEST LEE MILLER,

Petitioner,

Ve

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF FLORIDA

REPLY BRIEF

ARGUMENT

1. Petitioner's position is that a substantial

federal question is presented by the refusal of the courts

below to grant access to ~~ or even conduct an in camera

inspection of -~ the grand jury testimony of the prosecu-

tion's two eye-witnesses in a death penalty case. Peti-

tioner prior to trial had asserted a need for this grand

jury testimony in view of the importance of the witnesses

and the prior exculpatory and inconsistent statements thev

Since che State's case on both guilt and sen-

had given.

tence of deatl. depended on the trial testimony of these two

witnesses, the withholding of their grand jury testimony

from the accused rises to significant Eighth Amendment

dimensions.

The State's response nowhere denies this proposi-

tion. Rather, the State simply reiterates its generalized

interest in grand jury secrecy and recites the incantation

of the trial court that petitioner failed to lay “a suffi-

cient predicate” (i.e-, 4 sufficient showing of particular

need) for access to this grand jury testimony.

Regarding grand jury secrecy, the State's reliance

on Douglas Oil Co. v. Petrol Stops Northwest, 44] U.S. 211,

219 (1979) is plainly inapposite. Response at 7. None of

the considerations cited in Douglas Oil protecting wit-

nesses against intimidation, maintaining the integrity of

grand jury proceedings, preventing prospective defendants

from fleeing, and safeguarding the reputation of persons

ultimately exonerated by the grand jury -- has any appli-

cation once, as in this case, an indictment has been issued

and the defendant has been taken securely into custody.

Moreover, the courts below did not rely on any of the

Douglas Oil considerations in denying access here.

Nor do the older cases cited by the State (Response

at 8) diminish the importance of the issue raised. To the

contrary, those cases were decided prior to recognition of a

state's constitutional duty to turn over material evidence

favorable to an accused upon proper demand, Brady v. Maryland,

373 U.S. 63 (1963), or of the considerations that ultimately

gave rise to a right of access to grand jury testimony in

federal courts, see Jencks v. United States, 353 U.S. 657

(1957).

Finally, the State asserts that petitioner's motion

for access to the grand jury transcripts was based on “pure

surmise and speculation." Response at 9. Yet, the State

admits that one of the two eyewitnesses in question changed

her story prior to trial (Response at 4) and does not deny

that both eyewitnesses had given inconsistent and exculpa-

tory statements before the motion for access to the grand

jury transcripts was filed. The State's own rather dis-

jointed statement of facts underscores the uncertainty as

to what actually happened in this case. In these circum-

stances, the Eighth Amendment and basic principles of due

process preclude a conviction and death sentence based on

such testimony, where the accused has been denied relevant

transcripts with which to challenge that testimony.

2. Contrary to respondent's assertion, the

Florida Supreme Court considered and decided the issue of

whether the United States Constitution requires equalized

death sentences for petitioner and his co-defendant. In

overriding the recommendation of life by petitioner's jury

to achieve “consistency” with the co~defendant's death sen-

tence, the trial court noted that leihe United States

Supreme Court has determined that if the death penalty is

to be imposed by the states, the United States Constitution

demands that it be imposed with regularity, rationality and

consistency." Petition at App. 24a. The Florida Supreme

Court affirmed the sentence of death, expressly approving

the trial court's decision to override the jury recommendation

of life in light cf the “constitutional demand that the

death penalty be imposed in a regular, rational, consistent

manner." Miller v. State, 415 So.2d 1262, 1263 (Fla.

1982); Petition at App. 2a. By upholding the trial court's

imposition of the death penalty as constitutionally demanded

to avoid an unwarranted disparity in sentences, the Florida

Supreme Court passed on petitioner's federal constitutional

elain. Nothing more is required for this Court's exer-

cise of its jurisdiction. Jenkins v. Georgia, 418 U.S.

153, 157 (1974); Raley v. Ohio, 360 U.S. 423, 436 (1959);

Manhattan Life Insurance Co. v. Cohen, 234 U.S. 123, 134

(1914). Beyond this, the State does not dispute that the

issue itself is worthy of certiorari.2/

3. The State asserts that petitioner failed to

preserve his objection to the trial court's exclusion of

mitigating testimony on rehabilitative capacity. Response

at 13-14. The short answer to this contention is that the

Supreme Court of Florida addressed the merits of this claim

without relying on, or even mentioning, any such alleged

1 In Barclay v. Florida, No. 81-6908, cert. granted 51!

„8. L. u. 3362 (November 8, 1982) this Court will consider

whether, in the absence of any mitigating circumstance, a

trial judge's override of a jury recommendation of life may

be sustained even though one or more aggravating circum-

stances may be invalid. In petitioner's case, this Court is

asked to decide whether, in the presence of a statutory miti-

gating circumstance, the trial court may rely upon an addi-

tional nonstatutory factor (consistency with the sentence of

a co-defendant) to override a jury recommendation of life.

2/ The State incorrectly asserts that petitioner misstated

the number of aggravating circumstances the trial court found

to apply. As set forth in the petition for writ of certiorari,

and as supported by the record, the trial court found that the

two aggravating circumstances blended into one and, accordingly,

should be treated as one. Petition at 9 and at App. lla-l2a,

20a-2la.

procedural defect. 415 So.2d at 1263; Petition at App. 2a.

As long as it is clear that the state supreme court reached

and decided a federal question, this Court does not inquire

into precisely how that federal question was raised below.

See, e.g., Jenkins v. Georgia, 418 U.S. 153, 157 (1974);

Raley v. Ohio, 360 U.S. 423, 436 (1959); Manhattan Life

Insurance Co. v. Cohen, 234 U.S. 123, 134 (1914). Therefore,

this issue is properly presented.

4. The State finally contends that petitioner did

not sufficiently raise below his challenge here to the Flori-

da procedure, as applied in petitioner's case, of overriding

jury recommendations of life imprisonment in capital cases.

Yet, the Florida Supreme Court did rule on the question of

the constitutionality of the Florida jury override procedure

as applied to this particular case. In a section of the

appellate brief entitled "The Court Erred in Overruling the

Jury's Advisory Sentence of Life Imprisonment,” petitioner's

counsel below at least touched on the issue that the rejec-

tion of the jury recommendation of life in the. presence of

mitigating circumstances did not in this case comport with

the Constitution. Appellant's Brief at 48, citing Gardner

L. Florida, 430 U.S. 349 (1977). More to the point, the

Florida Supreme Court expressly upheld the jury override,

while finding that a death sentence was constitutionally

af Even if petitioner arguably failed to comply with the

Florida requirements for preserving his objection, it is

Clear that state procedural rules may not operate in deroga~

tion of petitioner's due process e under the Eighth and

Fourteenth Amendments. See Green v. Georgia, 442 U.S. 95

(1979)(per curiam); Chambers v. Mississippi, 410 U.S. 284,

293-98 (1973).

demanded to insure consistent imposition of the death penalty.

415 So.2d at 1263; Petition at App. 2a. In so doing, the

court cited past cases in which it had upheld the constitu-

tionality of Florida's jury override procedure. 415 So.2d

at 1264; Petition at App. 3a.

As recently reiterated, this Court has broad

discretion to interpret the scope of the state decision

below in reviewing the imposition of a death penalty.

Eddincs v. Cklahoma, 455 U.S. 104, 114 n.9 (1982) ("Our jur-

isdiction does not depend on citation to book and verse.)

This is particularly germane where the state court has

repeatedly reaffirmed the death sentencing procedure at

issue. In any event, the holding of the Florida Supreme

Court in response to petitioner's challenge below to the

jury override sufficiently provides this Court with

jurisdiction.

CONCLUSION

Petitioner respectfully prays that a writ of

certiorari issue to review the decision of the Supreme Court

of Florida.

tt kal submitte

Michael hel

(Counsel of Record)

Charles G. Cole

Rebecca L. Hudsmith

Diane F. Orentlicher

STEPTOE & JOHNSON

Chartered

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that on this A mngl day of

December, 1982, a copy of this Reply Brief On Petition For

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,

AULD QO

Counsel for Petitioner

Florida 233602.