Petition — JAMES C. C. McCRAE v. FLORIDA (No. 82-6555)

82 6555

7 RECEIVED

NO. A-735 Pe. 13,:973

.

IN THE

OFFICE & vs. CLERK

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

October Term, 1982

JAMES CURTIS McCRAE

Petitioner,

vs.

STATE OF FLORIDA

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

ROBERT H. DILLINGIR, ESQ.

Counsel for Petitioner

AKERSON, SWISHER, DILLINGER & BRETT

1135 Pasadena Avenue South, Suite i140

St. Petersburg, Florida 33707

(813) 347-5131

TABLE OF CONTENTS

Questions Presented ....+ + e+e ee ees

Opinions Below . . . . . . . . . . . . . . . .

Jurisdiction . * . . . . . . . . . . . . . . .

Constitutional and Statutory

Provisions Involved ..++-¢+«ee-r«ee-e

Beatement Of the COGG « . 2 we ee eee ee 6

Reasons for Granting the Writ:

I. THE OMISSION OF AN INSTRUCTION REGARDING

THE PRESUMPTION OF INNOCENCE, THE EXTRA-

ORDINARY BURDEN OF PROOF AND THE ELEMENTS

OF THE CRIME AS TO THE UNDERLYING FELONY

IN A FELONY MURDER PROSECUTION CREATES THE

DANGER THAT THE JURORS FAILED TO MAKE

ESSENTIAL FACTUAL DETERMINATIONS AS REQUIRED

BY IN RE WINSHIP, 397 U.S. 358 (1970).

ERGO. nag a eS ee kK ee eS ee ee

APPENDICES

McCrae v. Wainwright

T27 So. 2d 534 (Fla. 1982)

Opinion of the Supreme Court of Florida, dated

March 25, 1982

Order Denying Motion for Rehearing, dated

December 16, 1982

McCrae v. State

395 So.20 1145 (Fla. 1981)

Opinion of the Supreme Court of Florida dated

September 14, 1982

+

10

la-4a

Sa-6a

7a

8a-19a

20a-25a

ne eae

ao iw = S

TABLE OF AUTHORITIES

CASES CITED

Coffin v. United States

Cu v. Naughten

. . (1973) . * . . . . . .

Tranklin v. State

. (Pla. 1981) mine . . .

Henderson v. Kibbe

-S. 976) . . . . . . . .

In re ara

eSe 58 (1970) . . . . . . . .

Kentucky v. Whorton

oBe 79) . . . . . . . .

McCrae v. State

Oo. 45 (Fla. 1981)

McCrae v. Md

. .* 1982) * * .* . *

Morris v. U.S. ,

. 5 (9th Cit. 1946) . . . .

Pobles v. State

ISS So.2d 7689 (Pla. 1966) ....

Taylor v. rept acts

Uslbe 978) * . * .* * . . .

U.S. v. Noble

, 1S (ac@ Cis. 2906) sic os

U.S. v. Pincourt

e (320 Cir. 3967) « «6 @

OTHER AUTHORITY

Plorida Statutes, Section 782.04(1) (a)

‘Piorida Statutes, Section 775.082...

28 U.S.C. $1257(3) . . . . . . . . . oe,

QUESTIONS PRESENTED

1. Ina felony murder conviction in which the

felony murder constitutes the sole basis for the Petitioner's

conviction of murder in the first degree, does the failure of

the trial court to instruct the jury that the Petitioner is

presumed innocent of the underlying felony involved in the

felony murder violate the Sixth, Eighth and Fourteenth Amend-

ments to the United States Constitution?

2. In a felony murder conviction in which the

felony murder constitutes the sole basis for the Petitioner's

conviction of murder in the first degree, does the failure of

the trial court to instruct the jury that before the Petitioner

can be convicted of felony murder, the underlying felony in-

volved in the felony murder must be proved beyond 4 reasonable

doubt violate the Sixth, Eighth and Fourteenth Amendments to

the United States Constitution?

3. Ina felony murder conviction in which the

felony murder constitutes the sole basis for the Petitioner's

conviction of murder in the first degree, does the trial

court's failure to instruct on the elements of the underlying

felony charged in the felony murder indictment violate the

Sixth, Eighth and Fourteenth Amendments to the United States

Constitution?

NO. A-735

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

eee seen eee eee eeeee eee see ee ee eee

JAMES CURTIS McCRAE

Petitioner,

vs.

STATE OF FLORIDA

Respondent.

ees eee e eee eeeee eee eeee eee eee ee

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Petitioner prays that a writ of certiorari issue to

review the judgment of the Supreme Court of Florida filed on

September 14, 1982 which vacated its prior opinion of March 25,

1982. Rehearing on the September 14, 1982 opinion was denied

on December 16, 1982.

CITATION TO OPINIONS BELOW

The opinion of the Supreme Court of Florida is

reported as McCrae v. Wainwright, 422 So.2d 824 (Pla. 1982)

and is set out at pages la-4a in the Appendix. The prior

opinion of March 25, 1982 which was vacated is set out at

pages Sa-6a in the Appendix, and the order denying rehearing

is set out at page 7a of the Appendix.

JURISDICTION

The judgment of the Supreme Court of Florida was

filed on September 14, 1982 and Petitioner's timely motion for

rehearing was denied on December 16, 1982. On March 6, 1983,

Justice Powell signed an order extending the time for filing

the petition for writ of certiorari to and including April 15,

1983. Jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1257(3), Petitioner having asserted below and asserting

herein deprivation of rights secured by the Constitution of

the United States. |

AG / if . doe 6. od oot ne

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Sixth Amendment:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process

for obtaining Witnesses in his favor, and to have the

Assistance of Counsel for his defense.

United States Constitution, Eighth Amendment:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.

United States Constitution, Fourteenth Amendment, Section 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Section 782.04, Florida Statutes: Murder

(1)(a) The unlawful killing of a human being, when

perpetrated from a premeditated design to effect the death

of the person killed or any human being, or when committed

by a person engaged in the perpetration of, or in the attempt

to perpetrate, any arson, rape, robbery, burglary, the

abominable and detestable crime against nature or kidnapping,

shall be murder in the first degree and shall constitute a

capital felony, punishable as provided in s. 775.082.

STATEMENT OF THE CASE

On November 14, 1973, the Petitioner was indicted

for the crime of first degree murder of Margaret Mears (R-822)?

The indictment charged premeditated murder in count one and

felony murder in count two (R-940). The case went to trial

on April 15, 1974 in the Twentieth Judicial Circuit Court, Lee

County, Florida with Circuit Judge William Lamar Rose

presiding. Following the selection and swearing of the jury,

the judge gave the jury certain basis instructions regarding the

nature of the trial. He began with the following:

fhe Ietter "Rh", followed by the appropriate page numbers, will be

used to designate references to Record on Appeal before the

Supreme Court of Florida.

THE COURT: Be seated and give me your

attention. Ladies and gentlemen of the jury,

. inasmuch as some of you have never sat on a

jury before, I think it necessary that I kind

of tell you something about the progress of a

trial and what you may expect. You have been

sworn and selected as a jury to try the case

of the State of Florida versus James Curtis

McCrae. This is a criminal case. The defen-

dant is charged with the crime of first degree

murder, it being a capital offense. All of

the elements of the charge and some of the

lesser included charges I'll give to u at a

Tater time during these proceedings. (R-341) (Bmphasis added)

Shortly thereafter the judge went on to say:

Now, there are some other things that I

want to tell you about. The indictment that's

been found in this case - and that's this

paper here which will be read to you probably

many times during this trial - that in and of

itself constitutes no evidence. In and of

itself, the indictment carries no inference of

guilt whatsoever. It is only the means

whereby the defendant is alleged to have com-

mitted something and is in this courtroom for

the purpose of his trial, and that only. (R-344)

Following the judge's remarks, opening statements were made.

The prosecutor, in his opening atated the following:

His Honor has mentioned to you the

indictment in this case which, as he cautioned

you, is not evidence, and that's just what I

say. It's not evidence. The indictment is

the charging document which notifies the

defendant. and the public that the case is com-

ing up and which brings the defendant in this

case into this courtroom. (R-348)

The prosecutor went on to say:

I think the evidence will show actual premedi-

tation in the murder and premeditation to be

found through the act of rape. I believe His

Honor will instruct you on those various

points at the conclusion of this trial.

Now, on voir dire yesterday you heard

severcl questions about the statement, proving

all the elements and will you make the State

prove all the elements. Well, those are the

elements, the charges in the indictment and

the material portions of that indictment, plus

what His Honor will instruct you on the Spee

cific elements at the close. (R- ,» emphasis

acded)

When the prosecutor concluded his opening statement, the

defense attorney gave his. The defense attorney addressed the

jury as follows:

Similarly, the indictment that's been

handed down against my client is not evidence

in this case. As His Honor, Judge Rose, has

instructed you, this is simply a tool by which

my client was brought before this Court. It

has no evidentiary value whatsoever. It's just

a piece of paper and that's ali. (R-355)

vi rg

Co Yi nd 4, rib byo rs

Ades, SM RRR 4 bine? a ; . ; Bere ees

Following opening statements, the prosecution

presented its case through twenty-two (22) witnesses. The

medical examiner, Dr. Peter Rosier, testified as to the

autopsy of the victim. There were multiple lacerations on

the face, blunt trauma to the area over the left eye, much

bruising on the chest, and broken ribs. The doctor stated

that the victim died of "flail chest"; the broken ribs made it

impossible to breathe. It took her no more than four minutes

to die. (R-504). The doctor further testified that petitioner's

blood type was A Rh positive but the attempt to match it to

blood in the partment was inconclusive. (R~-518). The doctor

said the rape could have occurred either right before or after

death. (R-519).

Additional evidence wes presented regarding a palm

print and fingerprint found in the deceased's apartment which

were identified as petitioner's (R-703). Following the State's

case, the petitioner took the stand and denied committing the

crime (R-726).

In closing argument, the prosecutor discussed the

aspect of premeditated murder as charged in count one of the

indictment and felony murder as charged in count two. The

prosecutor then injects that another felony may have been the

motive for this killing and that felony is robbery (R-794).

He then asks the jury to convict on both counts (R-812).

The court began its instructions to the jury by

reading the indictment (R-822). Count I read as follows:

{O]ne JAMES CURTIS McCRAE did unlawfully,

feloniously and from a premeditated design to

effect the death of one MARGARET MEARS, did

strike, beat, bruise and wound the said

MARGARET MEARS, thus and thereby inflicting

on and upon the head or body of the said

MARGARET MEARS certain mortal wounds of which

said mortal wounds the said MARGARET MEARS

did between October 13, 1973 and October 15,

1973 die; contrary to the statute in such

case made and provided and against the peace

and dignity of the State of Plorida.

Count II read as follows:

[O]ne JAMES CURTIS McCRAE did unlawfully

and feloniously effect the death of MARGARET

MEARS in perpetrating or attempting to

bee,

eect yap Sane

perpetrate a rape, to-wit: did unlawfully

and feloniously ravish and carnally know a

female of more than ten (10) years of age,

to-wit: MARGARET MEARS, by force and against

her will, contrary to the statute in such

case made and provided and against the peace

and dignity of the State of Florida. (R-822,823)

The court then defined premeditated murder as follows:

A premeditated design to kill is a

fully formed conscious purpose to take

human life, formed upon reflection and present

in the mind at the time of the killing. The law

does not fix the exact period of time which must

pass between the formation of the intent to kill

and the carrying out of the intent. It may be

only a short time and yet make the killing pre-

meditated, if the fixed intent to kill was formed

long enough before the actual killing to permit

of some reflection on the part of the person

forming it, and that person was at the time of carry-

ing out that intent fully conscious of a settled

and fixed purpose to kill and of the results which

would follow such killing. When such state of

mind exists there is a premeditated design to kill,

although the killing follows closely upon the

formation of the intent. (R-828,829)

He then defined felony murder as follows:

The killing of a human being in committing,

or in attempting to commit any arson, rape,

robbery, burglary, abominable and detestable

crime against nature or kidnapping in murder in

the first degree even though there is no premedi-

tated design or intent to kill.

If a person kills another while he is trying

to do or commit any arson, rape, robbery,

burglary, the abominable detestable crime against

nature or kidnapping, or while escaping from the

immediate scene of such crime the killing is in

the perpetration or in the attempt to perpetrate

such arson, rape, robbery, burglary, abominable

and detestable crime against nature or kidnapping

and is murder in the first degree. (R-830,831)

The above was the extent of the instructions given on felony

murder in the first degree. The court then instructs the jury

that they can convict on count one, count two, or both.

R-849). The court submitted written instructions to the jury

also. The written instruction regarding felony murder read

as follows:

The killing of a human being in committing,

or in attempting to commit any arson, rape, robbery,

burglary, abominable and detestable crime against

nature or kidnapping is murder in the first degree

even though there is no premeditated design or

intent to kill.

The crime of (name crime applicable to evidence)

defined as follows: (define other felony).

eT at was all Le ali ae ae

If a person kills another while he is trying

to do or commit any arson, rape, robbery, burglary,

abominable and detestable crime against nature or

kidnapping, or while escaping from the immediate

scene of such crime the killing is in the perpetra-

tion of or in the attempt to perpetrate such

arson, rape, robbery, burglary, abominable and

detestable crime against nature or kidnapping and

is murder in the first degree. (R-1034).

As can be seen by comparing the instruction read to the jury

(R-830) with the written instruction submitted to them (R-1034),

the court in reading the instruction omitted the middle para-

graph which read:

The crime of (name crime applicable to evidence)

defined as follows: (define other felony).

The jury, after their deliberations, returned a verdict con-

victing the petitioner of count two - the felony murder count

(R-1060). Following this conviction, the jury again deliberated

as to the advisory verdict and returned a recommendation for

life (R-1069). The court then entered a sentencing order

imposing death upon the petitioner (R-1090-95).

THE APPEAL

A direct appeal was taken to the Florida Supreme

Court which rendered its opinion cited as McCrae v. State,

395 So.2d 1145 (Pla. 1981) and contained in Appendix at pages

Ba-19a. On March 4, 1982, the Governor of the State of Florida

signed petitioner's death warrant and petitioner's execution

was scheduled for March 31, 1982. Petitioner filed a petition

for writ of habeas corpus with the Florida Supreme Court on

March 23, 1982 and on March 25, 1982 the Florida Supreme Court

granted the writ and remanded for a new trial. That opinion is

contained in Appendix at pages Sa-6a. On September 14, 1982,

the Florida Supreme Court rendered its opinion on rehearing,

vacating the opinion of March 25, 1982 and denying a new trial,

which opinion is set cut in the Appendix at pages 20a-25a.

Petitioner timely filed a motion for rehearing which was denied

by order dated December 16, 1982, a copy of which is set out

in the Appendix at page 7a.

REASONS FOR GRANTING THE WRIT

I.

THE OMISSION OF AN INSTRUCTION REGARDING

THE PRESUMPTION OF INNOCENCE, THE EXTRA-

ORDINARY BURDEN OF PROOF AND THE ELEMENTS

OF THE CRIME AS TO THE UNDERLYING FELONY

IN A FELONY MURDER PROSECUTION CREATES THE

DANGER THAT THE JURORS FAILED TO MAKE

ESSENTIAL FACTUAL DETERMINATIONS AS REQUIRED

BY IN RE WINSHIP, 397 U.S. 358 (19706).

The concept that the Due Process Clause protects the

accused against conviction except upon proof beyond a reason-

able doubt of every fact necessary to constitute the crime

with which he is charged” is well established. In re Winship,

397 U.S. 358 (1970) at 364. This concept recognizes that a

jury needs proper guidance and instructions as to the legal

standards they must apply. The ‘=sportance of adequate standards

and safeguards regarding the presumption of innocence and

burden of proof has long been recognized. In Taylor v. Kentucky,

436 U.S. 478 (1978), this Court recognized that the ordinary

citizen may draw significant additional guidance from an

instruction on the presumption of innocence. This Court has

reiterated that if the overall fairness of a trial when con-

sidered in its entirety is affected by the failure to give an

instruction on the presumption of innocence that constitutional

error results. Kentucky v. Whorton, 441 U.S. 786 (1979).

The reasonable doubt standard has further been recognized as

playing a vital role in the American scheme of criminal

procedure. This Court has stated:

It is a prime instrument for reducing the risk

of convictions: resting on factual error. , The

standard provides concrete substance for the

presumption of innocence - that bedrock

“axiomatic and elementary” principle whose

“enforcement lies at the foundation of the

administration of our criminal law. Coffin v.

United States, 156 U.S. 432 (1895).

Purther, this Court has noted the cogent reasons for the

reasonable doubt standard because the accused has at stake

interests of immense importance - mainly loss of liberty and

certainty of being stigmatized by conviction. (@n Petitioner's

ee

situation, not only does he face loss of liberty and society's

stigma, he also faces execution.)

Petitioner was charged with two counts of first

degree murder, one charging premeditation and one charging

felony/murder by rape. On the premeditation charge, the jury

was instructed that the Petitioner was presumed innocent of

the murder charge and that the prosecution had the burden of

proving the charge beyond a reasonable doubt. As to the

premeditation element of the crime, the jury likewise received

extensive and detailed instruction (R-828,829). Petitioner

was acquitted of the promeditation charge.

On the felony murder charge the jury was likewise

instructed that the Petitioner was presumed innocent of the

murder. The jury was never instructed that the Petitioner was

presumed innocent of the rape charge. The jury was never

instructed that the prosecution had a burden of proving the

elements of the rape charge beyond a reasonable doubt. The

jury was never even instructed by the court on what the elements

“ The law clearly recognizes

of rape were under Florida law.

that the jury is to be instructed on the elements of the under-

lying felony. Robles v. State, 188 So.2d 789 (Fla. 1966)°

‘the only time the jury cam close to hearing what the elements

of rape were was when the felony murder count in the indictment

was read to them. Of course, the jury was never told by the

court that the indictment contained the elements of rape

but was expressly told by the court that they would be informed

of the elements at a later time (R-341). [The prosecutor also

told the jury they would be instructed on the specific elements

at the close (R-351)). Further, the jury was repeatedly

told by the court, the prosecutor and the defense attorney that

the purpose of the indictment was to get the petitioner into

the court and for that alone (R-344,348,355). Also, Federal

courts have long recognized that an indictment alone is in-

sufficient to adequately instruct a jury. U.S. vs. Noble, 155

P.2d 315 (3rd Cir. 1946); Morris vs. U.S., I56 F.2d 525 (9th

Cir. 1946); and U.S. vs. Pincourt, 159 F.2d 919 (3rd Cir. 1947).

3pailure to properly instruct on the underlying felony and to

define the underlying felony constitutes fundamental error.

Robles, supra; Franklin v. State, 403 So.2d 975 (Fla. 1981).

The court, having previously indicated to the jury that it would

be instructed on the elements, omitted the elements from its

instruction to the jury. The written instruction provided to

the jury shows the omission since the court omitted this

paragraph:

The crime of (name crime applicable to

evidence) defined as follows: (define other felony).

and by omitting this paragraph failed to name the crime appli-

cable to the evidence and most importantly failed to define

the felony involved (R-830,831).4

Whether this omission was intentional or unintentional

is unknown but what is known is that the jury was never

instructed on the elements which constitute rape, they were

never informed that the defendant was presumed innocent of

the underlying felony and they were never told the charge of

rape had to be proved beyond a reasonable doubt before they

could convict on the felony murder charge. This failure

results in a conviction.

This action by the court amounts to a misstatement

of the law rather than a mere omission, and as such so infected

the entire trial that the resulting conviction violates due

process. Henderson vs. Kibbe, 431 U.S. 145 (1976); Cupp vs.

Naughten, 414 U.S. 141 (1973). The poisoning of the trial and

resulting due ;cocess violation is certainly brought home by

the fact that as to the Count I - premeditation - the jury is

properly instructed and premeditation is defined in detail and

an acquittal occ’ ~s, while as to Count II - felony murder - the

jury is not adequately instructed and the felony/murder

requirements are never defined and the Petitioner is convicted

and sentenced to death.

The principles expressed by this Court in In re

Winship, Taylor vs. Kentucky, and Kentucky vs. Whorton, supra,

“the fsilure to instruct on the elements of rape in the

Petitioner's case is of particular significance since the sexual

act may have occurred after death (R-519), and if so, would

not be a rape under Florida law.

f" ik s ye) ly v'

tae Sy lg tS. 2 RS Tee ee eee NG r

are basic to the foundation of our criminal law and this

Court needs to make clear that these very princples apply in

a felony murder sitvsition and that the failure to apply these

principles results in a conviction that violates due process.

\

CONCLUSION

For the reasons expressed herein, the Petitioner

respectfully requests that this Court grant his petition for

@writ of certiorari.

Respectfully submitted,

AKERSON, SWISHER, DILLINGER & BRETT

By Vrtect th Oa

ROBERT H. DILLINGER, \ESQ.

1135 Pusadena ‘anne taeeh,

Suite 140, Executive Building

St. Petersburg, Florida 33707

(813) 347-5131

COUNSEL FOR PETITIONER

sas

i

?

3

of providing @ reasqnable expians-

tion of the gift “ i

attempt to carry burden,

Cripe explained that Mra. Hare agreed to

deposit the money ia & joint sccount be-

cause be had handled the condemnation

transaction and knew more about it than

she did There was 00 evidence, however,

that Mr

he wn of fash The tna! court's denial of

relief to Ue with regard te the

euuinel survivorship nights wo «

The decision of the district court of ap

peal reversing the trial court with regard to

the two joint accounts, referred to in the

district court's opinion as containing $12,700

and $10,900 respectively, was in error and

should be quashed. That portion of the

district court's decision thal reversed the

trial court with regard to the $32,000 certif.

cate of deposit, derived from a condemna-

tion seltioment, was correct and should be

aporovel

Accordingly, the decunon of Che district

court is quashed in part and approved in

part

It so orderud

ALDERMAN, CJ, and OVERTON,

SUNDBERG anid McDONALD, JJ, concur

ADKINS, J, concurs in part and dissents

in part with an opinion

ADKINS, Justice, concurring in part and

dissenting in part

1 would quash the decision of the District

Court of Appeal and remand ith instruc.

tions to affirm the judgment of tie tral

James Curtio McCRAR, Petitioner,

’

Coule L. WAINWRIGHT, Respondent.

No. 61565

Supreme Court of Plonda

Sept 14, None

Rehearing Denwd Dec 16, 1982

Proceeding was instituled on a petition

for ert of habwas corpus and « stay of

execution «The Supreme Court held that

ed

McCRAE v.

Ce as

(1) failure to instruct jury on elements

the underlying felony, rape, in prosecut:

for felony-murder was not fundamental

ror mandating reversal where the u

court did announce to the jury the speci

language which was contained in the fe

ny-murder count of the indictment a

which alleged that the defendant did u

lawfully and feloniously effect the death

the vielim in perpetrating or attempting

perpetrate a rape; (2) peliioner’s appella

counsel did not render ineffective assistan

by failing to raise fundamental error «

appeal, and (3) allegations of receipt a

consideration of nonrecord information co

cerning appellants in pending capital a

peals, even if true, did not establish ern

which would entitle petitioner to habe.

corpus relief

Petition denied

Overton, Sundberg and McDonald, JJ

dissented

1. Criminal Law @ 1004.2

Failure to instruct jury oo elements «

the underlying felony, rape, in proseculio

for felony-murder was nut fundamental e

ror manleling reversal where the tru

court did announce Wo the jury the specif)

language which was contained in the fek

ny-murder count of the indictment an

which alleged that the defendant did ur

lawfully and feloniously effect the death o

the victim in perpetrating or atlernpling &

perpetrate & rape

2 Criminal Law @641.1(7)

Since there was no fundamental! erro

which would have mandated reversal of ap

peal, petitioner's appellate counsel did no

render ineffective assistance by failing &

raue the fundamental error on appeal

USCAConst Amend 6

3. Habeas Corpus @ 25.1(4)

Allegations of recewpt and consideratior

of noneceord information concerning appel

lants in co, tal appeals during ume wher

petitioner's appeal was pending, even i

irve, did not establish error which wouk

entitle petitioner to habeas corpus relief

eRedeia?

Seekers

ae

x

e

«€

MeCRAE v. WAINWRIGHT Fla. 825

Cine an, Pla, 422 Sone 004

(1) failure to instruct jury on elements of

the underlying felony, in prosecution

tin Shkepanander ean ent fentemmannad on

ror mandating reversal where the tria!

court did announce to the jury the specific

language which was contained in the felo-

ny-murder count of the indictment and

which alleged that the defendant did un-

lawfully and feloniously effect the death of

the victim in perpetrating or attempting to

perpetrate « rape; (2) petitioner's appellate

counsel did not render ineffective assistance

by failing to raise fundamental error on

appeal; and (3) allegations of receipt and

consideration of nonrecord information con

corning appellants in pending capital ay

peals, even if true, did not establish error

which would entile "petitioner to habeas

corpus relief.

Petutuice denied

Overton, Sundberg and MclDonakt, JJ,

dissented

|, Criminal Law @= 1038.2

Pailure to instruct jury oo elements of

the underlying felony, rape, in prosecution

for felomy-murder was not fundamental er.

ror mandating reversal where ihe trial

court did announce to the jury the specific

language which was contained in the [elo

ny-murder count of the indictment and

which alleged that the defendant did un

lawfully and felonjously effect the death of

the victim in perpetrajing oF attempting to

perpetrate « rape

2 Criminal Law @©641.13(7)

Since there was no fundamental error

which would have mandated reversal of ap-

peal, petitioner's appellate counsel did not

render ineffective assistance by failing to

raise the fundamental error on appeal

USCA Const Amend 6

3. Habeas Corpus @*25.1(4)

Allegauons of receipt and consideration

of nonrecord information concerning appe!-

lants im capital appeals during ume when

petitioner's appeal was pending, even if

ive, did not establish error which would

entitle petitioner to habeas corpus relief

Robert H. Dillinger of Stolba, Lumley &

Dillinger, St. Petersburg, for petitioner

Jim Smith, Atty. Gen. and Robert J. Lan-

dry, Asst. Atty. Gen, Tampa, for respon-

dent.

PERK CURIAM

This cause is before the Court on

McCrac's petition for » writ of habeas cor-

pus and # stay of execution Petitioner is

how imprisoned under sentence of death

pursuant to judgment and sentence af-

firmed by this Court in McCrae » State,

395 So 2d 1145 (Pla), cort. denied, US

» 2 SCL SH, 70 LB 2d 466 (1981)

Petitioner raises three issues going to the

legality of his judgment snd sentence The

asserted grounds for relief are. (1) that the

trial court committed fundamental error by

not fully instructing the jury on the ele-

muents of the underlying felony ip this felo-

my murder case, (2) that petitioner's appel.

late counsel was ineffective in that he did

not raise the amerted fundamental error on

appeal, and (3) that this Court violated pels

tioner's rights by reoviving non-record in.

formation concerning appellants in pending

Capital appeals

Petivoner was charged with first degree

murder The indictment was in two counts

(though there was but ome homicide), one

charging premeditated murder and the oth

er felony murder The first count of the

indictment read as follows

[Ojme JAMES CURTIS McCRAE did un.

lawfully, feloniously and from « premed).

tated design to effect the death of one

MARGARET MEARS, did strike, deat,

bruwe and wound the ssid MARGAKET

MEARS, thus and thereby inflicting on

and upon the head or body of the said

MARGARET MEARS certain mortal

wounds of which saxi mortal wounds the

sad MARGARET MEARS did between

October 13, 1973 and October 15, 1973 die.

contrary to the statute in such case made

and provided and against the peace and

dignity of the State of Florida.

The second count, charging felony murder,

wes worded as follows

piss

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Eas

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count one and count two, (3) guilty on count

one, (4) guilty on count two, and (5) guilty

of lemer included offenses The jury re

turned a verdict finding petitioner guilty as

charged in count two, the felony murder

count. The other verdict forms were left

blank

Petitioner argues that under State v

Jones, 877 So 2d 1163 (Fla 1979), and Robles

¥. State, 188 So 2d 789 (Pia 1966), the trial

court erred fundamentally in not instruct-

ing the jury on the elements of the underly.

ing felony Robles and Jones are based on

the principle that a jury cannot properly

find « defendant guilty of felony murder

Without knowing precisely what conduct

constitutes the underlying felony We find

that the instruction was adequate and there

was no fundamental error

In Vasil v State, 374 So 2d 465 (Fia.1979),

the defendant was charged with felony

murder involving the crime of rape. On

appeal, Vasil argued that the court had

erred in failing to fully define the underly.

ing felony of rape The court charged the

jury on felony murder and rape as follows

If person kills another im trying to do

or commit any rape, or while escaping

from the immediate scene of such crime,

the killing @ in perpetration of or in the

atlempt \ perpetrate such crime

It @ the crime of rape to ravish or

carnally know « female person of the age

of eleven years or more by force and

against her will

In appealing his conviction to this Court

the defendant argued that the above defin»-

The tral court, in instructing the jury

on the underlying felony, recited all of

the elements of the crime of rape It is

hot necessary lo instruct on the elements

of the underiving felony with the same

that offense were the primary crime

charged. Sue Robles v State, 188 So.2d

ed

3a

789 (Fla.1966) The

underlying felony was

The same principle appl:

{1} Im the instant ca

failed to include an inst

ments of rape in its char,

did announce Ww the jur

guage contained in the »

indictment. As in Vasil,

prised of the essential eb

derlying felony Therefi

comphed substantially

Jones.

{2} Since there was m

ror which would have ma:

appeal, petitioner's secon

his appellate counsel rer

assistance by failing Wo ra

tal error on appeal—is a)

Under the standards ann

¥. State, 394 So. 2d 997 (FI

has failed wo establish ine

of counsel

{3} As his third «roun

pus relef, peUuoner asser

requested and received ¢

Uon concerning appellants

during the time when hus

ing here We considered

argument in Brown v

So2d 1527 (Pla), cert. «

2 SC 2, 70 L

There we held that the «

ceipt aad consideration of

by appellate judges, even

establish error which woul

Uoners to habeas corpus n

Having determined that

entitled lo habeas corpus r

petition

It i 80 ordered

ALDERMAN, CJ, and

and EHRLICH. JJ, conew

OVERTON, SUNDBE

DONALD, JJ., dissent.

on count

(5) guilty

STRAIGHT v. WAINWRIGHT Fla. 827

Che as, Pla, 423 S026 627

789 (Fia.1966). The instruction on the

underlying felony was sdequate Ronald STRAIGHT, Petitioner,

The same principle applies here.

{1} Im the instant case, the trial court

{ailed to include an instruction on the ele-

ments of rape in its charge to the jury, but

did announce to the jury the specific lan-

guage contained in the secund count of the

wndictment. As in Vasil, the jury was ap

prised of the easential elements of the un-

derlying felony. Therefore the tna! court

complied substantially with Kobles and

Jones.

{2} Since thear was no fundamental er-

ror which would have mandated reversal on

appeal, pelloner's second contention — that

tus appellate counse! rendered ineffective

assistance by failing to rame the fundamen

tal error on appeal—@ also without merit

Under the standards announced in Kayht

y State, 894 So.2d 997 (Pia 1961), petitioner

has failed to establish ineffective asswlance

of counsel

(3) As bis third ground for habeas cor-

pus relief, petitioner asserts that this Court

requested and received ex parte informa

von concerning appellants in capital appeals

during the time when his appeal was pend-

ing bere. We omauiercd and rejected the

argument ‘¢ Brows + Wainwnght, 92

So2d 5427 (Fla), cart denied, Us

~~, 2 SC fA2, 10 LEA 2d 07 (1981)

These we held ihat the allegations of re-

cert and conszeration of such information

by appellate judges, even if true, did not

establish error which would entitle the pets

voners to habeas corpus relief

Having determined that petilioner w= pot

entutled to habeas corpus relief we deny the

peta,

It ws 80 ordered

ALDERMAN, CJ, and ADKINS, BOYD

end BHRLICH, JJ., concur

OVERTON, SUNDBERG snd Me

DONALD, J4., disseat.

ae?

v.

Louie L. WAINWRIGHT, Respondent.

Ronald STRAIGHT, Appellant,

¥.

STATE of Florida, Appelice.

Nos 62164, 62182.

Supreme Court of Florida

Sept 14, 1982

Rehearing Denied Dec 27, 1982

Defendant was convicted of murder in

first degree and was sentenced to death,

and judgment und sentence were affirmed

on appeal Defendant then moved tral

court for onler vacating, setting aside, or

correcting judgment and sentence The

Cireuit Court, Duval County, Thomas D

Oakley, J, demed motion, and defendant

appealed Defendant also filed petition for

writ of haleas corpus in Supreme Court,

which was consolidated with appeal from

tral court's denial of postconviction relief

The Supreme Court held that (1) that de-

fendant’s appellate counsel did not argue

that trial court had expressly restricted

jury consideration of statutory mitigatl-

ing curcumstances did not deprive defend-

ant of full and meaningful appeal, (2) that

appellate counsel did not argue that inal

judge improperty conssiered opinions of of-

fiers familiar with case on propriety of

death penalty did not deprive defendant of

full and meaningful appeal, (3) failure of

defendant's trial counsel to determine pro-

spective jurors’ attitudes toward capital

punishment did not justify postconviction

relief, (4) fect that trial counsel did not

immediately object lo prowecutor's repeated

references, during jury selection, lo immu-

nity granted cocunsprator and stale wil

news did not justify postconviction relief;

and (5) trial counsel's failure We object to

4a

=——— ST OM OS AS Sa

Criminal Law—Habeas Nene A of Execution

Granted—Felony Murder—F ailure to Instruct Jury on

Elements of Underlying Felony Fundamental Error

Where Defendant Found Guilty of Felony Murder But

Not Premeditated Murder—Ineffective Assistance of

Appellate Counsel Kesulting From Failure to Raise

Issue of Improper Jury Instruction

JAMES CURTIS McCKAL, Petiiones, ¥, LOUIE L. WAINWRAGIT,

Kespendent, mma Coutt of Fhoteta, Case Nu. 61,865, March 25,

1962, Orginal Proceedeng~Habeos Cos pus,

Robert 1. Dulkager of Stole, Lumiry and Diltiegt:, St. Petersburg.

baits, for Pegtioner. Jim Sauth, Atturney General, and Robert

J, Landey, Acdotant Attomey General, Tempe, t borne, for Respondent.

(VER CURIAM.) Petitioner, Janes Curtis McCrae, seeks a Slay

of execution and relief by writ of habeas corpus from his con-

Victiun and sentence, affirmed by tus Court in McCrae v.

State, 395 So.2d 1145 (Pia), cor. denied, 102 $.C1. $83

(1961), Peutioncs asserts that lus orygnal apjx llate course!

was ineflecuive fur failure to raise a fundamental error wn the

thal proceedings which, if presented, would have mandated a

teversal of hus conviction. We agice that the Wiad court com:

wutied clear fendemental error in tuilwg to property tastruct

the jury and that appellate defense wunsel’s failure to raise that

sue establishes ineffective assistance of counsel under the stand-

ards we set forth in Knight v. State, 394 Su.2d 997 (Fla. 1981).

We tind that we must therefore grant the writ of habsas corpus,

pant the stay of execution, vacate our privt upinion, and remand

to the trial court for a new trial,

The relevant facts to the issue presented are uncontroverted

and reflect that petitioner was charged with first degree murder

in a two count indictment. The first count charged peutioner

with (ust degree premeditated murder:

[O] ne JAMES CURTIS McCRAE did unlawfully, feloniously

and from a premeditated design to effect the death of one

MARGARET MEARS, did strike, beat, bruise and wound

the said MARGAKET MEARS, thus and thereby infocting

on and upon the head of body of the said MAKGARLT

MEAKS certain mortal wounds of which said mortal wounds

the sad MAKGAKLT MLARS did between October 13, 1973

wid October 15, 1973 die; contrary to the statute wv such

caw made and provided and against the peace and dignity

uf the State of Konda,

The secund count charged petitioner with felony murder

[O} ue JAMES CURTIS McCKAL did unlawfully and

tehwmously effect the death of MARGAKIT MEAKS

in perpetrating of allempting to perpetrate a rape, to-wil

did unlawfully and feloniously ravish and camally know a

female of more than ten (10) years of aye, towits MARGARE

MLAS by force and againat hee will, contrary tu the statute

i) Such cate made and provided and against the peace and

dignity of the State of Florida,

The trial pudge tastructed the jury in accordance with the

sawdard jury instructions for count one, premeditated murder,

As to count two, however, the trial court gave only the following

geowtal felony murder instruction

The killang of 2 human being in cOmmutting, oF in atlempt:

ig 10 Qomtlt any ate, tape, robbery, burglry, abuudnable

and detestable crime against nature of kidnapping is nuider

w the fist degree even though there is nu premeditated

Seugn of intent to hill.

If a person kills another while he is trymy to do oF com

mul any arson, tape, rubbery, busplary, the abouunable

detestable crune against mature of kidaaprang, of while

escapeng from the inunediaste scone Of such coune the killing

io in the perpetration or in the attempt to perpetrate such

arson, rae, robbery, burglary, aboumnalle amd detestable

tive agauist natue of kidnapping and ty murder wm the

fist degree,

Thus was the total bestruction on felony murder. There was no

identifk ation of the specitic underly wig felony for whach the

defendant was chasped nut was there any motruction whatever

on the clements of the charged underlying felony

The triad court, in uvtructing the jury ow the form of the

verdict, advised the jury that it cowkl return a verdict as to

the counts collectively or dividually and y ive thei separate

verdict forms which, provided, respectively, for a verdict of

(1) mot guilty, (2) guilty as charged tm counts one and two of

the midictment, (3) guilty as charged in count one of the udict-

nent, (4) guilty as charged in count two of the indictment, and

(5) guilty of kesuee included offences, The jury returned » verdict

Hiding petitioner guilty as charged of count two, the felouy

neutder charge, The verdict form for “guilty as charged i count

wwe” and the torm for “guilty as charged in counts one and two,

1 as they ayqwat in the record before this Court, were not used and

j me blk. The record clearly denwnstrates that the tral pudge

TH DRAMA LAW WIERD to a pasta dno oot Dadcual aed Ad anstnatere Kowa Avon nates

Se De

1327 Neth Adawe Suvet. eet Cotte Mhie 4284. Tollamaowe. thwate S200) ieee ets DS

i SUPREME COURT OPINIONS

4/2/82

siked to properly instruct the jury on the elements of the

harged underly ing felony. The only mention of the underlying

cluny was by the judge reading the indictment to the jurors

( the commencement of the instructions. The jury returned a

crdict finding petitioner guilty of feluny murder and rejected,

cy lis action, 8 verdict finding petitioner guilty of premeditated

inst degsee mnusdes.

in 1966, in Robles v. State, 188 So.2d 789 (Fla. 1966),

ids Court held that @ tial court was obligated to instruct the

sty on the elements of an underlying felony in order to con-

wt e defendant under the felony murder rule. The requirement

v w instruct apphed whether of not defense counse| so

equested, lo State v, Jones, 377 Su.2d 1163 (Fla. 1979), thes

uur realfisamed ous hokling in Robles, finding the tial court's

ailuse to give an instruction ua ts of the underlying

cluay, where feluny murder was the primary offense charged

od asgued vo the jury, was fundamental error, To reject pete

wuer's claim in this case would require tiiat this Court over-

ule 1 prior déasions in Kobles and Jones which clearly and

nanbiguously mandate @ Ulal judge to instruct the jury vn

ne elements of the underlying feluny when felany murder ws the

runary teuse for which detendant is charged. The dictates of

(ables any Jones must cunuol Acvord Franklin v. State, 403

«0.246 975 (Fla. 1961), Out decisions in Adans v. State, No.

6,134 (Pla, February 11, 1962) [7 FLW 75], Knight v. State,

94 So.2d 997 (Fla. 1981), and Frazier v. State, 107 So.2d 16

Pla. 1958), as they concern insifuctions on an underlying

chany atc wspplicadle because in each of those vases Were

vaso premeditated murder charge, e verdict fur both pre-

neditated murder and felony murder, and sufficient evidence to

“stan 8 conviction an Ye chasge of premeditated murder. An

omportant distinction was that there was 8 valal verdict fur pre-

diated murder, albeit s collective verdict. That is not the

eaten in the instant case.

Addressing the Bsue of ineflective assistance of counsel, we

ved that the failure to reme this save on appeal mosis the Uuce-

sunged test we set out in Kaught v. State, concer nung ineflective

veistance of cuunsel. First, peUtoner has set forth (ue speafic

arasow of he appellate counsel. Second, the deficiency was

«rit bev suse our own case law had made the matter funda

ental errors. Third, the deficiency of failure to aise the issue

emonsu ates preyudos because, if it had been properly raised,

t would, ander the instant record and the law of this state at

we time uf the petition for review, hove required a reverse!

unl anew ial

We find that we have no alternative but to conclude appellate)

camael tailed to provide reasonably eilective assistance to pev-

janet in the original appeal on the merits, We grant the writ of

sbcus Cot pus, pant the stay of executive, recall our mandate

awed in acordance with uur opinion in McCrae v. State, 395

wo 2d 1145 (1981), wacate that opinion, and remand thas

aust tu the wial court for a sew trial un count two of Uw

inne) wdictment. With our holding, we find it unnecessasy to

uasider petitione:'s remaining pow is.

ii is vo uedered. (Sundberg, CJ., Overton, McDonald, aud

hulich, 1). Cuncus. Boyd, J., Duswats with an opinion, in

euch Adkins and Aldesman, J), Concus.)

sOYD, j., dissenting.

J respectfully dissent tw the mayonty vpwnon.

The maputity opmniun, in staying Use catculom, reversing

lw Camvictsun, and requising a new tral fur the defendant is

used upun dectssons of Unis Court cited therein wiuch hubd that

to support a conviction of murder in the first degree based upon

felony murder it is necessary for the court to charge the jury on

the elements of the underlying felonies.

The record in this case reflects that the court read the grand

jury indictment for felony murder as follows:

[O] ne JAMES CURTIS McCRAE did unlawfully and

feloniously effect the death of MARGARET MEARS in per-

petrating o1 attempting to perpetrate a rape, to-wit: did un-

lawfully and feloniously ravish and carnally know a female

of more than ten (10) years of age, to-wit: MARGARET

MEARS by force and against her will, contrary to the statute

in such case made and provided and against the peace and

dignity of the State of Plorida.

The basis upon which Robles, Jones, and other authority i:

based is that a jury cannot proper d a person guilty of com

nutting first degree murder based upon a felony without knowing

exactly what conduct constitutes the underlying felony.

In the case of Vasil v. State, 374 So.2d 465 (Fla. 1979), the

defendant was chasged with felony murder involving the came

of rape. On appeal, Vasil axgued that the court had erred in

failing to fully define the underlying felony of rape. The court

charged the jury on felony murder an! rape as follows

If a person balls another in trying to do of commut an,

tape, or while escaping from the immediate scene of such

crime, the kilbng is in perpetration of of in the attempt to

perpetrate such crime.

it ts the crime of tape to ravish of: camnally know a fe-

male person of the age of eleven years of more by force

and against her will.

In appealing lus conviction to this Court the defendant asgucd

that the above definition was not suflident to inforn: the jury

of the elements of the underlying feluny of rape. In response to

that axgument the Court held that:

The trial court, in instructing the jury on the underlying

feluny, tecited all uf the elements of the crune of rape. It

is Mol Necessary to instruct On the elements of the underlying

felony with the same particularity that would be required 1

that offense were the prunaty crune charged. See Kobles v.

State, 188 So.2d 789 (Fila. 1966). The instruction on the

underlying felony was adequate.

In this case the court falled to define the crise of tape in

its charge to the jury but, as sated in the majority opwnion, the

court did announce to the jury the speafic language contamed

in the second count of the grand jury indictment chanung th:

defendant with felony murder based upun tape. | agree with

those cases cited in the majority opinion requiring that juries

be toki the elements of the underlying felonies, but in thus

com, 3 in Vaal, the court complied substantially with the require:

ment of Robles and Jones by wfornung the jury of the elements

of rape.

Therefore, | respectfully dissent. (Adkins and Alderman, JJ.,

Concur.)

th PEA LAW WEE ATY 6 pein ate od Deda cal arnt Adeett trey Haw a Avon cates lem oat pon ate ol

1327 Newt Adame Steers. Pret Ofte Gere 4284, Tolistewe. Pharets 120! Pies emedy 20) ty

IN THE SUPREME COURT OF FLORIDA

THURSDAY, DECEMBER 16, 1982

JAMES CURTIS McCRAE, ee

Petitioner, ee

vs. hed CASE NO. 61,865

LOUIZ L. WAINWRIGHT, ee

Respondent. ee

On consideration of the motion for rehearing filed by

attorney for petitioner,

IT IS ORDERED by the Court that said motion be and the

same is hereby denied.

A True Copy c

cc: Hon. Sal Geraci, Clerk

TEST:

Robert H. Dillinger, Esquire

Robert J. Landry, Esquire

Investigator Ed Boone,

Sid J. White Office of the State Attorney

Clerk Supreme Court

rht- Connon

McC HAR ¥ STATE

aT

rhe 9145

he os, Fie. 208 be De 10d

James Curtis McCRAE, Appellant,

’

STATE of Florida, Appelice.

No. 45804.

Supreme Court of Plorids

Oct. 30, 1980

On Rehearing April 9, 1981

Defendant was convicted in the Cireurt

Court, Lee County, William Lamar Ruse J.

of first-degree murder, aad he spymalert

The Supreme Court held that (1) State

was properly allowed to question defendant

about prior unrelated felony on crows os

amination, (2) testimony of witnesses

which described an indivadual closely resem

bling defendant who, two days prur to date

om which murder victin's lexly was found,

was in immediate area where crime was

committed at approximate tume of ts com

mussron, was televant and alinssible as to

move of wentity, (3) defendant was nut

denied due process and equal protectwa of

law when he was charged under first ch

gree murder statute rather (han second ce

gree murder satule, and (4) jury's recom

mendation that defendant should le sen

lenced to life unpravament had me reasona

ble bass wader circumstances of case, and

thus inal court properly imposed death sen

lence over jury recommendation of life

Affirmed

Sundberg, C J, concurred specially in

result and filed opnon

1. Criminal Law @= 990(6)

Denial of defendant's motion Ww vacate

jedgment and sentence, based upon asser-

tion by material witness that he testified

falsely at trial due lo cuerewn and promise

of “deal” by state officimls, was proper, in

that no Brady vwlatwn had occurred

2. Witnesses 26% 1)

On cross examinatwn, stale must, us

general rule, limit itself te questions no

broader in scope than those propounded by

defenm

3. Witnesses = 350

State did not excwed scope of permis:

ble inquiry On cross examination when it

sought to eheit nature of defendant's prior

unrelated felony to which defendant re

ferred on direct, im that state was entitled

to Megete elusive innuemlos of defendant's

counsel, whieh tactfully atiemplead to me

lewl jury into beleving that defendant's

prwr felony was inconsequential

4. Witnesses @ 26% 1)

Kule limiting mquiry on cross exams

falion tv general facts which have been

satel! on direct examination must not Le so

construed as tu defeat real vljects of cross

esamination, une of which w tw eet whole

truth of transactions which are only partly

hence,

yvestons wheh are intembed to fill up ck

eaplaimest in direct eaamination,

ogee! of accwlental omens of witness or

te call wut facts tombing to comtradet, on

plan ur tmlify some infer nce which miyght

vilerwue te drawn from thee te elimony, are

he grtietate ifees ¢ tamithalam

& Criminal Law oH 1197(2)

Defemient cannot take alvanlage of

appeal of situation which he has crested at

trial

© Criminal Law G37

Any testimony relevant lo prove fact in

eevee admimble unices precluded by sume

yweilic rule of exchuswn

7. Criminal Law @ 369.2(1)

Relevant evidence will nut be exactuded

merely lwcuuse it points lo commiasion of

separate crime, unless is sole relevance is

te port up bad character of eruminal pro

pensity of accused

6 Criminal Law 399.5

Testimony of two witnesses, which de

wrilet iulivalual cluely resembling de-

—-

1146 Fle 395 SOUTHERN KEPORTER, 2d SERIES

femlant whe, two lays whore munher vn

m's lanly was found, was in inmedtiats

area where crime was committed al appros

imate time of is commesiwn, was relevant

and admusible as Ww weve of wentity, fail

ure of witnesses We wentify defendant was

Question for jury as lo weight to be accurd-

ed their testimony

9. Criminal Law © 372(14)

Testimony of witness, whe deserted

incident in which defendant came tw her

ayertewat, searching for partnular undivad

wal, and later returned to apariment, forced

door open, shot acquaintance of wiinens

ond then lwal wiltess alwut face with gun

ond chohed her Lefure Mewng. a alone

ble 18 proeewution for murder laxaune wit

Qees was oble to wlentily defemlant aml

becauer, allegudly, she estatllihes! that com

mon plan ow whem was employert bey ch

fendamt Ww gam admitiane Ww

homes

vuln

18. Constitutional Law @ 250 2/1), 265

Defendant was nut dened due prowess

ead equal protectin of law when he wae

charged wader first degree murder Hatute,

which proscriins unlawful billing of human

being when perpetrated (rom premeditated

design or whee commited by aren en

geged in perpetration of crime, rather than

under mound degree murder statute, which

preecrian voleaw!lul billing of human ining

when perpetrated by act unmumntly dan

getous We anether and evoming depraved

mumd tegariicss of human bile Weet's

PSA § TW2OKIKs), (2), USE A Come

Amemls 5, 4

It Criminal Law @ 121)

Sentencing procedure of statute proved

ing sevttence of desth of bile unpreenment

for capital felunws was merther volative of

constitutional mamiate of Furman + Geoor

gia on ite face of as apple le defenmtant

whe was convicted of fit degree munter

Wests PSA § 921 141 ct my

12. Memcide @ 34

In evertulng alvmery verhet of pery

for thle watemey aed semtemerng hele mebant

whe was convicted of first degree murder,

to death, finding by trial court that crime

was committed while defendant was en

gaged in commision of rape, an aggraval

ity circumstance, was nol error West's

PSA § 921 145Kd)

13. Homicide @° 34

In overruling advisory verdict of jury

fur life sentence and sentencing defendant,

who was convicted of first degree murder,

tw death, inal ewurt correctly determined

that crime was especially hemeous, atrocious

woeful, af aggravating

Wests FSA § 921 145Kb)

corcumslance

14 Criminal Law © 1208(1)

Diatute provndeng that fact that capital

febony was eopmerally heinous, alrocwus, of

trucl @ 40 aggreveling corcumetance to tx

conmleret by trae court in determining

whether to ump sentence of life unpre

vnment on death ayqlies lo comscwacelens of

pitiless crm which w unnecessanly torte

Wests FSA § 82)

fous Ww veetlim

14K Sah)

15 Momiide Ge 3K

Where defendant, who was convicted

of first degree murter, had pled guilty to

prwr felony mvviving use of threat of vio

lence lo persue, defemdant’s guilty ples con

stituted convatwn, even though judge had

rot adjwleated hem guilty, and could te

conesierel 2s aggravating circumelance in

trea! courts deemwn whether lo imycse sen

tonee of hfe unpreenment or death West's

PSA § 92) 4KSeb)

16 Crminal Law © 773.212)

linee phew of gully hae lwen accepted

by court, 1 te the convection and only re

marmung vlep « formal entry of judgment

aml Umpaiton of a Ate ace

17. Crvminal Law @ 1200(1)

In chtermining whether death penalty

shoukl te yam, court Mmuat conswler ver

nue Corruetanees set forth in statu avy

ernng woteneing for capstal felonies, which

Met KAR © STATE

hla

1147

Ce on the, 8 be oe 108

ant judge in establohing vverall character

analysis of defendant wv that he may prop

erly determine appropriate sentence within

limits set forth in law West's FSA

992114)

16. Criminal Law @ 1 208(1)

Word “convicted” as used in section

providing thal previous conviction of de-

fendent of another captal feluny of « felo-

py invelving wee or threat of vwlence to

person aggravating circumstance lo be

considered by tral court in determining

whether to impuse sentence of life unpre

onment of death for capital felony owans

valul guilty pha or jury werdet of guilty

for velew felony, an adjucheution of guilt

is fot Mecessary for such & “conviciwn” to

lew consslered im capital sentencing charac

ter analyse Wests PSA § 921 45eb)

See publx ston Words and Phrases

for ther jude! cComirumtwns and

delindvons

19. Homicide @ 3

Trial court properly repocted argument

of defendant, who eas convicted of first

degree murder, that by eas under influcms

of watreme mental of cmetmnal desturhance

ot lee ofits Bete coenmttiod and that

sae shout te cnnseheteed as mutggaling cor

cumetame © deletmemng whether to om

pom motonee of Life primal ut death

Weete PSA § FL) Litton)

20 Criminal Law @- ans

Adveery rooummormlisatwn of jury on

wetenee te le enpemed vn cefenmdant must

be acourhed great woght

2). Criminal Law @ anh

Jurys recumnnwmiaton that defendant,

who was convicted of [iret degree murder,

should ta sentemed ty hfe unpreenment

had no reasunable base under cireumelanc

oo of cam, and thus tral court's decmwn Wo

umpose heath somone vver jury recommen:

daiwa was prone Wests PSA § 921 141

Ue Meotwa for Kehearing

22. Criminal Law & 990(17)

Upon review of record of postounvn

ton relef proceeding i hight of asertions

10a

made in brief of defendant, whe alleged

that witness committed perjury during

murder prosecution, evidence was sufficient

to affirm fmting of tral court Uhat witness’

testimony af trial was true and thal esti

mony al postconviction hearing was false

Philp M Gerson of Freshman, Gerson &

Freshman, Miami, for appellant

Jim Smith, Atty Gen, and Raymond L

Marky, Asst Atty Gen, Tallahassee, for

appellee

PERK CURIAM

Thee @ 4 direct appeal from « conviction

of murder im the first degree and a sentence

of death rendered im the cerewit court for

law County, Plornla We have juridiction

pursuant to article V. section MbNL) Flor

tla Constitulion, and affirm the conviction

and sentence

Un Ocwolor 15, 1975, Margaret Mears, a

wiaty seven year old woman, was found

teal om her spertment Her laxly, un

clothed frum the want down, had been bru-

tally lawton alowt the head end chest, and

her vaginal area was covered aith blood

A bhaaly puis print lifted from her apart

own was wheotifad as that of the appel

lant, James Curtee McCrae MeCrac was

wuheted for two counts of

murder in the first degree, one count charg

mg 4 premeditated bilhag, and the other

charging felony murder

ous bee ye mily

In order Ww determine he competency to

viand trial, aygeilant was examined by

three court appointed paychatrots While

all three decturm concluded Uhat appellant's

mental duerder created violent and uncon

trolled behavior, appellant was found com-

potent Wo stand tral = Syocifically, De Mor

decat Haber olmerved that McCrae suffered

from a deerder which contributed to an

explomve personality The ductor conclud-

ed that McCrae was mentally competent

but tow dangerous to Le at liberty in secretly

Ur Thomas Heagland found that McCrae

1148 FM

was capable of giving aud to bis counsel and,

when suber, wae @ well cuntaumed undivider

al who had firm control over bis faculties

However, when under the influence of im

toxicants, appellant released an underlying

furor which erupted inte uncon:

trolled violent behavior Dr. Clarence

Sehiit, who testified during the bifurcated

phase of the inal, stated that McCrae was

gubject to attacks when under emotional

stress which prevented him from exercwng

the restraint which wouk! be preaent in

norma) individual Although the ductor

stated thet sppeliant was nut insane, Ne dad

s “determine thal McCrae suffered from «

chron schiuvphren illness am! that be

was unlikely Wo cooperate with defers

cou nee!

At Unal, the tele yatruducedd Uke esti

ny of four witnesses tur the alleged! purye

af showing wWentity of establishing + com:

mon echeme of plan balih Veal testified

that she lived near the wit At th

purported hour of Un cry 8 CUR Heath

she stated thal « young black male with a

cast on bee arm futing the same gemeral

descryiwe as aypyrtlant, bnuckeal on her

dvor ond ashed for Wayne Mike Mere

Veal stated thal fe one by thal eam liwesl

at her resilience The man then asked uf

her husband was home While Mra Vea!

was unable to whentily ayqatiant at a pre

inal lineup, she wae abic pusttively be nie

tify hum upon being recalled Ww the @riness

sland

Mure! Bergner sumlarty testified that

she lived in clase prosimity lo the welim

According to her testimony, un October 14,

1973, the day before he vel ® tasly was

found, @ young black male also ftting

her while she was walking her dog, te ask

directions The man walked away, bul re

turned, again ashing questions At that

point, Mre Bergner walked hurrwaly to her

home and locked the deur She succeded

im fastening the lock just tw lure

arrived at her dovretep The stale alee

called Dorvthy Hendley whe tootificnl Unat

lla

395 SUUTHERN REPORTER, 2 SERIES

while walking her dug, « man whom she

identified as appellant ap

proached her and shed questions similar lo

those asked of Muriel Bergner

Faith Lederman Gertner and Willam

Smith testified that McCrae came to Mra

Gertner’s apartment on June 8, 1973,

searching for Randy Willams When in-

formed that Wilhame did not live there,

McCrae left but returned shortly thereaft-

or, and asked Mr Geriner We accompany

him downstairs She refused, bul Witham

Smith agreed to go in her place Once they

walked downstairs, McCrae took @ swing et

Smith and fed Later that evening, oppo!

lant returned and forced the dour open He

drew a gue and shot Smith He then beat

Mra Gertner atwut the face with the gun

amt choked her before fleeing ager

jositively

After the state rested, appellant towk the

stamd wm he own behalf During direct

he was asked if he had been

convicted of mademeanors and if he had

phoardel guilty lo these charges Appeliant

respomlest ia the affirmative to both ques

tons Hie counsel then ashed of he was

ever cunvicted of a felony, to which apya!

lant agen anseored affirmatively On

cruse waamunaton, the olale «allerney

sought to ele the nature of Ue felony

charge Overruling defendant's objection,

the court required MeCrac to echose lo the

jury Ural be had pleaded guilty to assault

with imtent murder On (he

ground = that appellant's had

“yyened the deur” to such questiwning

After the clase of the evidence, the jury

returned a verdict of guilty on the felosy

murder count, but recommended ao life sen

tence As required ly, axectiot 921. 149),

Florida Statutes (1975), the trial judge

made findings of fact wherein he rejected

the recomawadation of the jury and en

Lered o judgment calling for the death sen

tonew Spweifieally, he slated

As presiding Judge | observed the De-

fondant when evidence was introduced

aml esweially when the fingerprint ex.

ort from the FEL was testifying, the

shanna

we eomml

couns’'

oy oan oe

ctwon 921.1613),

ne inal judge

ren he rejected

WIE eS ee

McCHAE ¥. STATE Fla

1149

Cee ae, Pha, 208 bene 1148

Defendant appellant) appeared extreme:

ly nervous and upset when this evidence

was being received = Throughuul the tr

al, as the story wafulded, the Court was

struck with the heinous, atrecwus and

ervel murder of the eklerly woman

The Court was alo aware thal « person

answering the description of the Defend-

ant ined to gain entrance bo the homes of

two other elderly women in the same

chow meighborhuad wherein the deewased

lived in her apartment at or about the

Lime shortly connected with the death of

the deceased

The Court ts also aware that the lesth

mony proved that the Defendant. « few

months Lefure the inelant case at bar,

brutally ettacked « female by the name

of Pauth Lederman (Gertner| after he, the

Defendant, had shut and sermusly wourl:

ed Wilham K Seth, which as a result of

sakd attack, the Defemlant staal before

the Court and voluntarily pleaded guilty

w the crime of assault with 4 dewll)

@eapun with intent to cumet fire de-

gree murder

The record in Cam No TS STZ CP Law

County duchet, reveals that the Defend:

ent plead guilty to the charge on Sey

tember 11, 1974, just alout one month

before the murder of Margaret Mears,

the decwaseed in the case at bar

The Defendant was jarmited re

main at liberty ve ball porting the pre

senlener investigation report un Case No

TS STZ CF

During (he time the Defendant was at

bberty of bal letwewn Septemiear 11,

1973 and October 29, 1979, Une murder for

which the Defendant was ined and con-

victod in the instant cam was committed

1k ts interesting to mute that the De-

ferdant’s fingerprints taken when he was

convicted for the erume laut in Cam No

T4372 CF matched the bhaaly finger:

prints lifted from the resnlence and

preemies uccupied by the deceased, Mar:

garet Mears, ant thus resulted in the

indictment and conviction uf the Defend

ant im the case at bar

The Court before the triai was interest-

ed in the mental state of the Defendant,

and appointed experts in the field of psy-

chiatry to thoroughly examine the De-

fondant. The Court held hearings on the

question of the mental condition of the

Defendant ant after hearing the testimo-

ny of such experts held that the Defend-

ant was fully able to distinguish the dif-

ference between right and wrong and

covkd fully cooperate with hws counsel in

Ube preparation and conducting of his de-

fense

The Defendant did fully cooperate with

counsel during the trial and actively ad-

vueed counsel and was fully aware at all

umes of the proceedings during the trial

The Defendant Wook the witness stand

in his own behalf and demonstrated that

he, the Defendant, had an excellent mem-

ury, but cvukd nut explain how hu biuudy

fingerprints and palm prints were found

on the wall near the beck door of the

decwased’s apartment of upon Looks and

other itleme in the residence

The evileme discloses that Ue de-

coased was so brulally and vicious'y beal-

on that her blaud was splattered upon the

walls and ceiling of her residence, and the

evadence further discloses that the elder

ly women was raped, ether just «fore

her death or directly after she was mur-

dered

The Court sets forth the above facts as

they fully appear in the inal record, and

the record taken by the Offical Court

Reporter

The mitigating circumstances are very

mime

The Defendant, in order to show the

jury Uhat at the time of the crime he was

“under the influence of extreme mental

or emotional disturbance” placed Dr

Clarence Schilt on Ube stand, however Une

youd doctor could not with any degree of

modes! certainty say in his oprnon Une

Defendant was so affected The docto

in hes summation stated that the prisone

was either very smart or very wck

eeeeereeerenenn et isi TT

l2a

a | Ne Le a sa

Se ea Tk a ye ee A

a

1150 Fie

Therefore, when the Court takes inte

Conskeratwn the aggravating circum

slances such as

1. The Defendant was» self convicted

felon, pleading guilty w assault to mur.

der, and as an incnlent thereto, from the

tral record that the Defendant hed beat

[sie) and choked the witness Faith Leder.

man in & brutal assault upon her, just «

few weeks prior te the murder of Marga.

ret Mears. and

2 That ihe Defendant hed on the same

might of the murder trad te gan en

trance to the readences of two viher of

derly females im the same luwality, and

3. That the crime was committed “ac

cording to the jury verdict” in the com

minswon of rape, and

4 That the murder was wopecially hes

fous, airucwus, brutal and cruc!

The Court feels that these facts greatly

oulweigh any miligating crcumstance

heard by the Court at the tral of the

Defendant

The Court further fowls that the test:

mony of Dr Clarence Schult wn tts entire

ty @ aot sulficwat we vulwegh the as

Gravating circumMslanes as wt forth

alors and as they fully aygear in the

record in the case

The Court ws fully aware of the great

responmbiliiy that rests squarely wpon

the Una! Judge i matters of thu bund

The Court has struggles! with the

weighty decwwn that must le made in

tus came, and in making the determina

ton We overrule the decwon of the jury

at advan! the sentence of hfe unpre

vAmen|

The Court mut chasing of inferring

that the jury was las in thew respunasbils.

ty However, as may appear the Court

feels that it is the responsibility of the

Court to follow the law as written by the

wiedom of our varwus lawmakers, that

sccwty must be protected and thal an

example must be ort forth and made ep

parent so that wur citizens may be secure

im thew homes and that they may be safe

l3a

|

395 SOUTHERN REPORTER, 24 SERIES

from the eaperieonces that Margaret

Mears suffered at the hands of the con-

vieled Defendant

The Court therefore reyets the advise

ry sentence of the jury in this case and

will pass the sentence of death upon the

Defendant, JAMES CURTIS McCRAE

The Court feels that this action vpon

its part w dictated by the facts and cir.

cumstances gleaned from the inal record

amd that sufficent aggravating circum.

ances exis as enumerated in Subsection

6 to greatly oulwegh any muligaling cir.

cumstances as set forth in Subsection 7 of

Section 92) 141, Florida Statutes

Tr wl Vil, 1080

Appellant urges five pounts for reversal

We restate these points below

(}) whether the trial court erred in allow.

img the stale to question McCrae about

prer unrelated felony on cross-examine

(4) whether the inal court erred in

simutling the lestimony of Edith Veal, Mu

rel Geryner, Pau Geriner and Wilham

Semith, (ut) whether the tral court's er

ten of the desth penalty denes appellant

due process and equal protection of law and

vwlales ie mandate of Furman v Georg

Ws US Si 92 SC. Pre, 33 Lea oe Bee

(1972), lcouse there & no reional dutine

town letween first degree murder and mur.

der im the mound degree, (iv) whether Une

mOlencing procedure enunciated im chapter

¥21, Ploruda Statutes (1975), @ vielstive of

the constitutions! mandate of Furman »

Gvergia both on its face and as applied wo

McCrae, and (v) whether the court erred rr)

vverruling the hfe sentence advisory verdict

of the jury

Following oral argument of respective

counsel on these issues, appellant filed in

the Court » motion for new inal with sup

porting affidevit pursuant te Flordes Rule

of Crminal Procedure 3 600, alleging newly

Gucovered evidence In the sworn affids.

vit, Ole Walker, » material witness e! the

tral of appellant, averred essentially that

he testified faleely at trial due to cuercion

lwon

5s = Way . nA.

4p a” *

ae ~ ’ .

a La yeh ig a

McCRAE v. STATE

Pin 1151

Cine an, Fla, 988 Sone 1148

and the promise of a “deal” by state offi-

cals, Appellant coctended that Walker's

assertion established s violation of Brady v.

373 US @, & SCu 11%, 70

L.Ed.2d 216 (1968) and, accordingly, that he

wes entitled to a new trial. In an order

dated November 2, 1978, we pointed out

that @ motion under rule 3.600 is an inap-

propriate pleading in an appellate court,

such @ motion must be addressed to the tral

court. Purther, because the time limit for

flung thie motion in the proper tribunal had

expired, the only remedy for the alleged

Bredy violation was & motion in the trial

court vacate judgment and sentence un-

der Florida Rule of Criminal Procedure

3850 Although appellant's affiant had de-

med under oath at trial that he was offered

a “deal” in exchange for his testimony in

that proceeding, thu Court nevertheless re-

lunquished jurisdiction to the trial court to

enable appellant to file a rule 2850 motion

raaing the alleged Brady violation

{t]) Appellant thereafter filed the mo-

on in the trial court and, on December 18,

1978, after hearing the evidence and argy-

ment presented by the parties, the trial

court entered an order denying the request.

ed relief The judge found “that the testi-

mony before th Court of OTIS WALKER

@, in fact, untrue,” and concluded that

no Brady vwlation had occurred A!though

appellant fied a notice of appes! frum that

order, he has not informed Uns Court of the

grounds of hw attack. Nevertheless, we

have reviewed the record of the rule 3.850

proceedings We are satisfied that the trial

judge correctly ruled om the motion and,

acoordingly, that ruling ie affirmed We

now turn to the issues 00 appeal.

The first point raised by appellant chal-

lenges the ruling of the trial court allowing

the prosecutor to cross-examine appellact

with reepect to his price criminal record.

Appellant concedes that the state is entitled

lo cross ¢zamine him of (hose moves devel-

oped durvng direct examination. However,

he argues (hat the state exeseded thu scope

of permusible inquiry when it sought to

elicit the nature of the felony to which

appellant referred on direct. According to

appellant, the defense established only that

he had been accused of a felony and that he

had admitted his guilt

[2-5] We agree that on cross-examina-

tion the state must, as a general rule, limit

itself to questions no broader in scope than

those propounded by the defense Cortes v

State, 135 Fla 589, 185 So 323 (1998), Cook

v State, 46 Fla @, 35 So 665 (1903), 98

CJS Witnesses, §§ 378, 394(b), 995, 401(2)

(1957) Im the instant case, however, the

state properly transcended these bounds be-

cause defense counse!, through his questions

on direct examination, tactfully attempted

to mislead the jury into believing that ap

pellant’s prior felony was inconsequential

On direct examination, appellant's counsei

asi~d hus chent

Doug, af thie time I would like to ask

you a few questions | would like to

begin by asking you Have you ever teen

convieted of a mudemeanor’

A Yes, I have

Q Do you recall how many times you

have been convicted of a mudemeanor’

A. Well, | would say ower the past nine

or ten years poembly about mine or len

muxlemeanonm

Q Did you pay fines or did you serve

tume for these mudemeanors’

A. | pad fine

Q Do you recall how much in the way

of fines you may have pad for miste

meanors otal’

A Yeo I! paid a total of $445 in fines

Q Doug, have you ever been convicted

of a felony”

A. Yea, | have, one

Q One time’

A Right.

Q Doug, these misdemeanors, this fel-

ony you told me about, were you found

guilty by a judge or s jury?

A. No, I was not, | pled guilty

Q You pled guilty’

l4a

1152 Pie 395 SOUTHERN REPORTER, 24 SERIES

A. Yes

Q Why did you plead guilty?

A. Because | was guilty

Q How did you plead w this charge

ageingt you thal you are here for w

day’

A. Not guilty.

Q Why did you plead noi guilty,

Doug’

A. Because I'm not guilty

This line of questwning could have deluded

the jury into equating appellant's convic-

tion of assault with intent lo commit mur.

der with his previous mudemeanorms Con

sequently, the slgle was entitled lo mterry

Gale appwllant regarding ihe nature of hu

prior felony in apder Ww negate the delusive

innuendoes of hi cuunse! As slated by one

learned echolar

(The rule limiting the inquiry te the gen

ere! fects which have loon stated in Uh

direct eAamination must noi Le so con

sirved as Wo defeat the real objects of the

Cruse-enaminatlion One of these objects

ts to chet the whole iruih of transactions

which are only partly explained in the

direct examination Hence questwns

which are intended to fil! up designed or

sceudental omusiwons of the witness, or to

call out facts lending to contradict, ex.

plan of modify some inference which

might otherwise be drawn from hu testi

mony, are legilimate cruss examination

4 Jones on Evidence, Crom Examination of

Witnesses § 253 (6th Ed 1972) (fotnote

omitted) A defendant cannot take adven

lage on appeal of « situation which he has

created at trial § Sew Sullivan ¥ State, WU

So.2d G32 (Pin 1974), White + State, 448

So.2d 1170 (Pia. 3d DCA 1977), Jackson »

State, 336 So 2d (Pia 4th DCA 1976)

Appellant neat argues thal the ina! court

erred in admitting the testimony of four

witnesses introduced by the state in ils Case

im chief Initially, appellant contends that

the testimony of Edith Veal and Mure!

Bergner, placing him in the immediate aree

where the crime was commited at the ap

proximate hour of its commission, should

have been excluded for three reasons (l)

the (wo wilnesses were unable positively to

wentily him and, therefore, their testimony

wee irrelevant, (2) assuming there had

been & positive wentification, there was no

relevance between Mra Veal's and Mry

Bergner's experience and the crimes com.

mitted, and (3) the terumony of the two

women did nol suggest an stlempt to com.

mil similar crimes aguinst them

16,7] Any testimony relevant to prove

the fact in mauve is admissible unless pre.

clued by some specific rule of exclusion

Johnson v State, 1 Se 2 699 (Pla 1961),

Willams ¥ State, 110 So 2d 654 (Pla 1969)

Furthermore, relevant evalence will not be

ercluded merely lwcause it points to com.

mason of @ separate crime, unless is sole

relevance t lo pont up Lad character or the

criminal propensily of an accused Mack.

wee v State 14 So dd 6h4 (Pleo 1969).

Williams v State, Jontan.v State, 17}

So Li 418 (Pla Int DCA 1965) As app!

lant correctly notes, the testimony of Buith

Veal and Mure! Bergner did not present

evadence of another erme, thereby ugges(

ing appellant's criminal propensities le

Cause appellant has noi suggested any other

sjacific rule mandating that the watimony

be excluded, the witnesses’ testimony ts ad

Misible if it @ relevant

{8} Although appellant argues that the

testimony of Mrs Veal and Mre Hergner

relevant because they failed to identify

hum, he ignores the fact that both Wilheases

sated thal the person who ailempted wo

gain entrance Wo thew homes met Ue gener

a! description of appellant Both women

descrited an individual closely resembiing

appellant who, on October 13, 1973, was in

the immediate area where the crime was

committed at the approsimate time of its

communion Therefore, their Lestimony

was relevant and adimummble as to the issue

of wentity Appellant's contentions are

merely questions for the jury as Wo the

weight Wo le sccorted the lestimony

15a

Dison

[12-

the

pouser

(Pla It

dict of

the ser

court f

es und

(1975)

convict

threat

(b)), f

whilea

non of

the ery

and on

the see

sec lion

Purthe

ly that

elrocim

—_)

—

mmission, should

wee reasons (1)

able positively to

, ther lestumony

ming there had

un, Unere was x0

Veal's and Mr

ne crimes com-

wony of the two

allempt W com-

them

‘evant prove

wuble unless pre-

ste of exclusion

| Syv (Pla 196)),

of 654 (Pla 1959)

eer will mot be

| pons com.

<, unless ts sole

character or the

wcuned = Mach.

G4 (Pla 1958),

av State, 171

v5) As appel-

mony of Edith

Gd nwt present

hereby suggest.

wnnnies Be.

rested any other

\ (hee lestumony

\eslimony is ad-

wgves (hal the

Mrs Bergner ws

led to udentify

' Woth witnesses

» sllempted

met Ue gener.

Both women

McC KAR ». STATE

Fla 1153

4 te on, Phe, 208 be de tad

19) Appellant also argucs that the teats

mony of Puith Gertner and Willam Sauth

was irrvlevant because the incnlent which

they described occurred almust six months

before the instant cnme Similarly, appw!-

lant submits there was no factual thread

connecting the two events We disagree

Mrs Certner's testimony was adinasible be-

cause she was able to wentify the appellant

and because, allegedly, she established that

& common plan or scheme was employed by

appellant lo gain admittance Wo the victims’

homes Bryant v State, 285 So Ld 721 (Pla

1970), Winstewd ¥ State, 91 Su 2d BUY (Pla

1956)

{10} Appatiant’s third pount is that he

was denied duc process and equal protection

of law when he was charged under section

TH OKI Ka), Florala Statutes (1975), the

firet degree murder statute, rather than for

murier in the second degree under section

THZ042) This Court's decison in Adams

¥ State, M4) So 2 765 (Pla 1970), and State

¥ Dison, 263 Su 2d 1 (Pls 1974), dictate that

appellant's argument must fail on he o

ou

(80) Appetiant’s fourth jaunt has Leen

deculed adverely to hue cause in Slate ¥

Dison

(12-14) Appwtlant argues further that

the tral court vwlated the principles es

poured in Techkr + State, S22 Se Sl Gos

(Pla 1975), in wverruling the advisory wer

dct of the jery for a life sentones During

the sentencing phase of the proceedings the

court found threw aggtavating corcumslanc

€o uruler sectwn 921 1415), Plone Statutes

(1975) (1) that ajqeilant was previously

convicted of «4 feluny involving Uke um of

threat of violence Wo the persun [sulseetion

(b)), (2) that the crime was committed

while appellant was engaged in (he commis:

avon of & rape (subsection (d)), and (3) that

the crime was especially hens, alrociwus

and crucl [subsection (hp) The finding of

the secund agyravaling circumstance under

seclwn BLL I4NSKb) was clearly proper

Further, the trial judge determined correct:

ly that the crime was copwesally heinous,

sirocwus of crue! The evulence disclosed

MO me be 08

l6éa

that the wet, 4 sixty seven-year-old

woman, was sw brutally beaten about the

head and chest that her blood was splat-

tered upon the walls and ceiling of her

resulence According Ww the testimony of

Dr Roser, the medial examiner who

viewed the scene of the crime and per-

formed an autopsy on Ms Mears, the pat-

tern of Ulaal stains on the wall indicated

that she was either sitting of standing

when the atteck began At sume point the

viclim was thrown to the floor and her nbs

were crushed, resulting in death by asphya-

tation within four mingles thereafter (Tr

vol 111, 499-512) The Pape occurred either

shortly before of immediately following Ms

Mears’ death The agony and horror which

this elderly woman muvt have suffered pri-

or her death wevident As we acknow!-

edged in State v Dison, 23 Sold at 9,

sertion 921 141(50h) apples to “the con-

wwrceless of pililess crime which w unnec-

essarily torturous to the victim” The bill-

ing 19 thee case falls squarely within the

calegor, when vewed in the conteat of

prior decuons of the Court where we have

approved a finding of Unis aggravating cir-

cumstance See Washington v State, 362

Seo 2d GSe (Pla 19TH) (victim repeatedly

stabbed while ed to ao bed, with evidence

of suffering), Barclay v State, M3 Sold

1206 (Pia 1977) (victim stabbed while bey.

ging for mercy and then billed by shots to

the Dew!) Adams © State (victim beaten

with fire poker past pount of submmsion and

wali! grossly mangled )

(15) The appellant further contends

thal the trial judge unproperly found under

wmeton P21 14N5Kb), Ploride Statutes

(1975), that he had town prevwusly “con:

victed” of « felony imvolving the use or

threat of viclenew Ww the person Al the

time of hes Urial in the instant case, McCrae

had already pleaded guilly lo assault with

intent Ww commut murder upon Faith Gert.

ner and Wilham Semih Pending sentenc-

ing of Une charge, he was released on bai!

without adjudwation of guilt, awaiting the

completion of Une presentence investigation

114 Pls

report. Shurtly after hie release on bail,

McCrae, as found by the jury in this couse,

sexually assaulted and murdered the victim,

Margaret Mears McCrae contends that he

had not been convicted of his prior offenw

agsinst Gertner and Smith becwus the

judge had not edjudicated him guilty We

reject ths cuntention and find the plea of

guilty Ww & felony involving the use or

threat of violence to the person is a convic-

tion which may be used in aggravation un-

der section 921 14150 b) and was so intend.

od by the legulature

(16) In Rodsason + State, 373 So Ld B98

(Pia 197%), we held that « plea of guilty

an in-court cunfesswn and an agreement

for Une court Ww enter ao judgment We

further cited with approval the decmwn of

the United States Supreme Court in Boykin

v Alabama, 95 US 238, 2, WSC 17,

1701, Se CR 2d 276 (1964), which stated

“A ples of guilly w@ more than a confession

which admits thal the secused did varius

ects, hw tteelf @ cunviciwn, nothing rm

mains bul lo give puigment an! determine

punwhment” [kinphasts sujyled | Them

deciswns recogni that ome « plea of

Quilty hes lawn accepted by « court, it Uh

conviction am! ihe only remaining step o

the forma! entry of puigment and the ump

silion of sentence

(17) Further, om determining wihx ther

Une death penally should tex pam! a

court must comenier Une various corcum

olances at forth in wetiwn P2114) Then

cwrcumsalances ax! Une judge in eatabloting

Une overall character analy ete wl « defer

Ont oo thal he may properly determum UK

spprupriale senlenee within the lime met

forth im the law Blixige + Stute, So

So.2d 996 (Pia 1977) Prue convatwns of

violent felunws w an catremely umportant

factor im the sentencing process Given the

purpose of the process, it ws logical that «

ples of guilty We a serwus offense involving

violence thal ts dijneed of by & sentence

that includes a withholhng of edjudu atwn

of guilt showk! le treated differently than «

plea of guilty with court adjudicatwn

Both contain an unreluted factual diterm,

nation that the defendant committed tas

prer criminal of fwnse

395 SUUTHEMN KEPORTER, td SERIES

In interpreting “eunvievon” for the pur.

poses of section 921 145K), we reyect any

analogy Ww the habitual offender statute set

forth in section 775.084 The habitual of.

fender statule creates # separate criminal

offense thal requires beth (a) a determina.

ton of guilt by « jury or & ples of guilty,

and (b). an adjudication of guilt by the

court Washington v Mayo, TT So2d 620

(Pla 1955) This statute was enacted by the

legislature “Ww protect society from habitual

criminals who perwet in the commission of

crime after having Leen theretofore con

ve ed and punished for crimes previously

committed” Joyner v State, 8 So 2d 304.

306 (Pia 1947) It i new and separate

crominat offense, and “adjudication of

guilt” @ a necessary clement of the offenn

{18} On the other hand, thie Court in

biheige © State recugnued the purpose for

conmdernng pret criminal combuct in the

tapelal mnloncing process w Wo ensure a

pruyer character analyses lo determine jf

the ullumate penalty of death should be

yun! Specifically, we send

[Whe tahews the purpose for considering

aggravating amd mil\gating circumslan

ve ts bo engage in a character analyse of

the cefemdlant to ascertain whether the

vilimate perialty @ called for on hes or her

Vropenaty Wo commit »

vient crimes surcly must be a val con

suteration for the jury and the judge

M6 So St at WO) The fact that an adjud)

calwn of guill @ 4 prerequisite, as & lechn,

cal element of the offense, le & conviction

under the halutus! uffender statute, @ thus

vf no analogous value W Ube instant com

The word “convicted” ss used in section

92) 1405KL) means « vald guilty plea or

jury verdet of guilty for « valent felony

an edjudnation of guilt is nol necessary fur

such « “conviction” to be consulered im the

capital sentencing character analyses

perlicular cam

{19} The final sentencing weve concerns

the appellant's atlempt lo prove im mitigs

tuum under section 92) 141(/60b) thal he was

under the infivence of extreme mental ur

emwlwnal dulurbance st the Ume the

l7a

———-— i

McC KAR ¥ STATE Fle 3155

( We os, Pha, 398 be de 114d

~twon” for the pur-

MD), we reject any

(fender statute set

The habitual of.

separate criminal

h (a) @ determina-

« & plea of guilty,

fayo, 77 Se2d 620

was enacted by the

vty from habitual

the commiqnion of

» Uneretofore con-

crimes previously

‘tate, 9% So2d 304,

new and separate

“sljudication of

«nt of the offense.

ond, thee Court in

od the purpose for

| cumduct om the

« w Ww efeure «@

+ lo determine if

death should be

wad

se for considering

Ung Cortumelanc-

arecter analyse of

ram whether the

od for um bes oF her

wily © commit vi

ot be « valid con-

y and the judge

o prove im miliga-

(6Xb) that he was

xtreme mental or

ot the time the

crimes were committed = in our view, the

inal judge rejected this mitigating circum

stance. The judge noted in his findings of

fact that “the mitigating corcumslances are

very minor” and that the agyravaling cir-

cumstances “yreatly oulweigh any mitigat-

ing corcumstances” As to this specific mit-

igeling circumstance, however, the trial

judge remarked that the doctor through

whose testimony appellant submitted his

proof, “cowk! nut with any degree of med)-

cal curtainty” say that appellant satisfied

the crtere of subsection (G4L) However,

st os apparent bo us thal the jury must have

found the miligeling circumstance lo earat

There w ne other caplanation for thew ad-

visury verdict in view of the heimous nature

of the billing We find thew recommenda-

wn has no reasnable base uorler the cir-

cumstanoes of this coum

(20,21) We rwalae the advisery recom.

mendation of the jury must le accounted a

greal weight, Tekh + State, 322 So 2d 9uB

(Pla 1975), but in our view the decwwn of

the trial puclge bo ripe (he cheath sentence

over Uhe jury recommendation of life was in

these circunmtames projet Hoy 6 Stats

S53 So 2d 26 (Pia 1977) Dvblert + State,

328 So Bt 485 (Pla t970), aff'd 432 US SR

97 SCu Ley, 65 LL bal i Bea (1977), aff

after Cantaer enter, JTS So Gd 108 (1979)

Por the reasume capresed in this apinion,

we affirm the ajqatiant’s convaetwn and

sentence of death

lt to ow ordered

SUNDBERG, C J, and ADKINS, BOYD,

OVERTON, ENGLAND and ALDEKMAN,

JJ, concur

SUNDBEKG, C J, concurs specially in

result with an opinwn

SUNDBERG, Chief Justice, concurring

specially in result

While I concur with the result reached by

the majority, | must respectfully reguter

my duagreement with one aspect of the

opinwon = Based on the suthority of Robin-

son v State, S73 Su Li By8 (Pla 1979), and

Boykin v. Alabame, 985 US Zs, 8 SCi

1708, 23 L Ed Jt 274 (iv6¥), | agree that «

fee Mme 4

18a

plea of guilly to a violent felony properly

may Le considered as an aggravating cir-

cumstance under section 921 141(5\b), Flor-

ida Statutes (1977) As stated in Boykin,

such @ plea is more than a confession, “it is

itself w conviction” 395 US. at 242, 89

S.Ct at 1711, 2) LEd 2d 274) Absent any

suggestion by the defendant that the plea

was involuntarily entered of the pendency

of a motion Wo set it aside, the formality of

entry of judgment and imposition of sen-

tence by the Court should not be dispositive

of the vitality of the conviction Where

appeal of » conviction is ponding al the

tume of sentencing under chapter 921, how-

ever, quile another question i presented

Consequently, | cannot subscrile to the

more sweeping statement by the majority

which rejects any analogy to the habitual

offender statute, section 775.084, Florida

Statutes (1975) My reasons for the view

are expressed in my dissent in Peek v

State, 39 Sod 492 (Fla 1960), and no

useful purpose would be served by repeat

ing them here

ON REHRAKING

PER CURIAM

This cause was initially argued on March

5. 1975 Wt wus subsequently scheduled for

reargument on Septemiar 20, 1977 Appel-

lant’s counsel thereafter requested that this

Court relinquish juridictwn so that he

could file « petition fur pust-convichon re-

hel under Rule of Criminal Procedure 3.850

on the ground thal « witnem committed

perjury during tral We granted the re-

quest and relquished jurmdiction by our

order dated November 2, 1978 After an

evidentiary hearing, the trial court denied

appellant's petition for post-conviction re-

lef Appellant filed a notice of appeal on

March 6, 1979 The record was received by

the Court, bul, through inadvertence, the

briefs were not made available for Court

review As stated in our origina) majorily

opinion, “[a)ithough appellant filed » notice

of appeal from that order, he has not in-

formed thes Court of the grounds of his

attach. Nevertheless, we have reviewed

1156 Fe 395 SUUTHERN KEPORTER, 2d SERIES

the record of the rule 3.850 proceedings

We ore satisfied that the trial judge cor-

rectly ruled on the motwn and, accordingly,

that ruling io affirmed.”

(22) On this petition for rehearing, the

briefs filed in the post-conviction proceed:

erred in finding the witness's lestimony at

trial to be true and the testimony at the

post-conviction hearing (to te false The

remaining points are depamlent yjuo the

alleged erroneous finding We have re

viewed the record of the pust-cunvictun

relief proceeding in light of the assertions

made in appellant's brief, and we have cur

cluded that the evilence sulfawm w

affirm the Wnekeourt’s finding Our opitr

ion is corrected to reflect our conenieralion

of the appellant's briwls

The remaining issuce set furih in the

petition for ruheanng are without mori

and are denied

it is so ordered

SUNDBERG, CJ, and ADKINS, BOYD,

OVERTON, ENGLAND an! ALUEKMAN,

4J., concur.

DINERS CLUB, INC, Petitioner,

..

Donald F. BRACHVOGEL et

al, Respondents

Ne. 57046.

Supreme Court of Florida

Oct. 30, 1980

As Modified on Denia! of Rehearing

April 4, 198)

Judgment debtor moved to st ssc

default judgment on grounds that her hus

1. Art V, § MOMS) Fla Comet (1972)

Land never tuld her about lawsuit resulting

in jugewat that she was unaware of it,

und that she had a legitimate defense. The

District Court of Appell, Third District, 370

So. 2d 443, granted motion, and appeal was

taken. The Supreme Court, McDonald, J.,

held that there was no abuse of discretion

in trial judge vacating ‘efault upon claim

againet moving party that excusable ne-

gicct exuted for not answering

Writ ducharged

Overtun, J, concurred in result only

Sundirg, C. J, and Englond, J, div

wrtal

Judgment 139

Troal judge did not abuse discretion in

vacating default upon claim of moving par-

ly that excusable neglect existed for not

anawermng as the movant had pracuical basis

fur not Umely snewering plus tendered de-

fone upon which she mught prevail

Arnold K Ginsberg of Horton, Perse &

Ginsberg and Car! L. Laks, Miami, for pet-

lwner

Carol A Penetlo of Bradford, Withams,

McKay, Kimbrell, Hamann, Jennings &

Knokern, Miami, for respondents

McDONALD, Justice

This cause te before the Court on petition

for wrt of certoran to review the decuiwn

of the Third District Court of Appeal, re-

ported at 370 So 2d 443 (Fla dd DCA 1979)

The district court affirmed without opimun

» circuit court order vacating & default

judgment against Mro Brachvogel Find-

ing apparent conflict between that decision

and Barnett Bank of Clearwater, N. A ¥

Folsom, 306 So 2d 186 (Pla2d DCA 1975),

we entertained junsdiction '

Diners Club sued the Brachvogels on

their credit card aceount The Dade Coun-

ly Sheriff served process ead complaint for

19a

Eg

ceeasEXSEEFE_“SSEFEEST. LEETESSE

we2eereercsesaesinm

©

Supreme Court of Florida

TUESDAY, SEPTEMBER 14, 1962

JAMES CURTIS McCRAL, oe

Petitioner, a

ve. ee CASE NO. 61,865

LOULE L. WAINWRIGHT, ee

Reqpondent. ee

se *e ** ** ** ** *

Order on Motion for Rehearing

‘PER CURIAM.

Respondent having filed @ motion for relearing of this

matter, we hereby qranc the motion and vacate our decision and

opinion qt Aoren 23, ise),

‘ are”:

stad ‘ye ordered.

ALDERMAN, C.):, ADKINS, BOYD and CHALICH, JJ., Concur

OVENTON, SUADBERG and MCDONALD, JJ... Dissent

Aes.

A Trve Copy Js

ce: ae WH. Osllinger, Esquire

Robert J. Landry, Eaquire

20a

Wo. 61,365

JAMES CURTIS McCRAL, Petitioner,

vs.

LOUIE &. WAINWRIGHT. Respondent

(Septemper Li, 1982)

‘ On Rehearing Grarted

PER CURIAM.

This cause is before the Court on McCree’s petition for «

WEit of habeas corpus and 4@ stay Of execution. Petitioner .4 now

imprisoned under sentence of death pursuant to judgment and

gentence affirmed by this Court in McCrse v. State. 395 So0.2¢

Lb43 (Ple.. cect. denied. 102 5. Ct. $8) (1981). Petitioner

ceiees three issues going to the legality of bis judgment and

sentence. The asserted grounds for relief are: (1) that the

trial court committed fundamental error by sot fully instructing

the jury on the elements of the underlying telony in thas felony

@urcer case, (2) Chet petitioner's appellate counse. was

sneffective in that he did not raise the seserted fundamental

error on appeal. and (}) that this Court violated petitioner's

fights by receiving non-record information concerning appellants

in pending capitel eppesis.

Petitioner was charged with first-degree murder. The

indictment was in two counts (though there was but one nomicide),

one charging premeditated surder and the other felony murder.

The first count of the indictment read as follows:

2la

@

(Olne JABES CURTIS McCRAE did unlawfully, teloniousiy

and from @ premecitated design to effect tne ceatn of

one MARGARET MEAAS,. did strixe, at, beuase and

the 6444 MAARCAAET MEAAS, © « and thereby

inflicting on and upon the nead or body of the said

MAAGARET MEARS certain mortal wounds of whicn said

@ortal wounds the said MARGARET MEARS 114 between

October i), 197) and October 15, 197) 4:0: contrary

to the statute iA such case mace and provided and

rome the peece and dignity of tne Stace of

florida.

The secone count. charging felony Curser, was wOrsec 45 SO.,lows.

(Olme JAMES CUYRATIS “SCCRAE fic saiawtully and

feloniousiy effect re deat of 4MARGAALT MEARS in

perpetrac: Or attempting to perpetrate @ cape,

to-wit: dad unlawfully and feioniously cavisn and

Garnaily know #8 female of mre than ten (10) years of

eq@, CO-wit: MARGARET MEAAS Dy force and ags.ast Yer

will, Contrary tO tne statute in buch case “ade and

PSOVides and against the peace inc fignity of the

State of Florida.

for the Count charging petitioner with premeditated

@usders, the court instructed the jury +f accordance with the

etanders jury instructions. ith cegers to tae second count,

charging felony murder, the court gave the following jeneral

felony murder instruction.

The giiiang of @ human being if Committing. of

4m attempting to commit any arson, rape, robbery,

Durgiary. abominable and detestable Crime against

Nature Of kidnapping is murder if the first seyree

even though there 18 NO premec:tated <ceagn of sntent

to «ili.

tf @ person Kills ancther while ne 8 trying to

40 Of Commit any ar8on, cape, robbery. Surgqlary, the

abominable detestable Crime against nature or

kadnapping., Of whale escaping from the immediate

scene of such Crime the siliisng i6 in the

POrpetration or in the attempt Oo perpetrate such

arson, cape, robbery. durgiaery, svominadie and

Getestable crime egeinst Nature Of “.dnapping and .4

@urcder if the first degree.

The inetsuctions to the jury 4180 included 4s reading of

the indictment e686 set out above. The indictment was jiven to the

jury. along with the forms for the verdict, to Cane with Lf into

Geliberetions. The second count of the indactment, charging

felony murder, specified the underlying felony and defined it in

terms of its essential elements.

The triel court, im instructing the jury on the form of

the verdict, edvised that the jury could return @ verdict #8 to

the two counts collectively of individuelly. The court provided

22a

me ® ®

‘

geperate verdict forms for verdicts of (1) noe quilty, (2) guilty

@m both count one and count two, ()) guilty on count one, (4)

quailty on count two, and (5) guilty of lesser incluced offenses.

Tre jury coturned « verdict finding petitioner guilty as cnarged

Am COunt two, the felony surder count. The other verdict forms

were left blank.

Petitioner argues thet uncer Stace wv jones. 377 $0.24

126) (Pla. 1979). and Rovles v stace. .38 5¢.25 789 (Pla. Line,

the trial coust erred fundamentally in sot instructing the jury

on che elesencts of <ne uncerlying felony Robles and Jones ar*

pesed on the srinciple creat & jury cannot eroperiy find «

defendant guilty of felony murcer without <nowing precisely wnat

Conduct constitutes the underlying felony 4@ find nat the

ANOETUCtAON Wes sdequate and there was so fundamental erro:

ta Vasil v. State, 374 So. 24 465 (Fla. L979), the

defendant wes charged with felony @urcer involving tne crime of

repe. On eppeal, Veeil argued that the court hed erred in

Ceicing to fully define tne underlying felony of cape The court

charged the jury on felony aurder and cape as follows.

22 @ person «ills another in trying to go of

commit any cape. of while escaping from the imrediace

ecene Gf euch crime, the Akasllang is in perpetracion

of OF in the attempt to perpetrate such crise

tt te tne crime of rape to cavish of carnally

anow @ female person of the age of eleven years or

@ore by force and sgainst ner will.

ta eppeslang his conviction to this Court the Jeflendanc

arqued that the above definition was sot sufficien*s to inform the

jury of the elements of the underlying felony of cape in

tesponse to that erqgument the Court neid that:

The triel court, in instructing the jury on the

underlying felony, recited al, of the elements of the

crime of cape. [It is not necessary to instruct on

the elements of the underlying felony with the same

particularity that would be required if that offense

were the primary Crime charged. See Robles v. Stace,

366 So.2d 769 (Fla. 1966). The instruction on the

underiying felony wee adequate.

The same principle applies here.

Im the instant case, the triel court failed to include an

instruction on the elements of rape in its charge to the jury,

-)-

23a

: ~ hd

-

but did announce to the jury the specific Language contained in

the second count of the indictment. As in Vasil, the jury was

apprised of the essential elements of the underlying felony

Therefore the trial court complied supstantially with Ropies and

jones.

Since there was 10 fundamental error whicn would have

mandated reversal on appeal. petitioner's second contention--tnat

his appellate counsel rendered aneffective ase.atance Sy [82..4;

to raase the fundamental error on appeai--is B18G witnOUt Merit,

Under the standards announced in MWiigiit vv jtate. 394 $0.24 997

(Pla. A9@L). petitioner sae failed to estaoi.an ,oetfectave

assistance of counse..

As has thacd ground for naceas corpus celset, petitioner

eseerts thet this Court requestes and received es perce

information concerning appellants in sapitas appeals during tne

time when his appeal was pending here. We considered and

rejected this ergument in Brown vy. Mainerigns 292 $0.26 1327

(Pla.), Gert. denied, 102 S.Ce. S42 (L981). Trere we seid

that the sllegations of receipt and consideration of such

information by appellate judges, even if true, Gad NOt eetacisen

@CTOE WHACH would entitie the petitioners to Sabess Corpus

reiset.

Gaving determined that petitioner is sot entitied co

hebees corpus celiel we deny the petation.

tt is 80 ordered.

ALDERMAN, C.J.. ADKINS. BOYD and CMALICN. JL concur

OVERTON. SUWDBERG and SCOONALD. JJ., Oissent

MOT FINAL CWTIL TIME EXPIAES TO FILE REHEARING MOTION AND. IF

PILED, OLTERMINED.

-4

Original Proceeding ~- 4abeas Corpus

Robert #. Dillinger of stoiba. Lumley and dillanger,

St. Petersourg. florscs.

tor Petitioner

Jim Geith, Attorney General and fobert J. sandry, Assistant

Attorney General, Tampa, Florida,

for Respondent

-$-

25a