Petition — Russell v. Florida

83-842

Office - Supreme Cou

rt, U.S.

“FFE D

NOV 18 1983

NO. 83- ALEXANDER L. sTEvas.

in the

Supreme Court

of the

United States

October Term, 1983

GERALD J. RUSSELL,

Petitioner,

vs.

STATE OF FLORIDA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

JOEL HIRSCHHORN, P.A.

By: Joel Hirschhorn, Esq.

Counsel for Petitioner

Gerald J. Russell

2766 Douglas Road g

Miami, Florida 33133

Telephone: (305) 445-5320

QUESTION PRESENTED

I.

WHETHER PETITIONER WAS DENIED A

FAIR AND IMPARTIAL TRIAL AND DUE

PROCESS OF LAW IN HIS TRIAL FOR FIRST

DEGREE MURDER BY THE PROSECUTOR'S

“REBUTTAL” CLOSING ARGUMENT,

DURING WHICH THE PROSECUTOR

RAISED, FOR THE FIRST TIME, AN

ENTIRELY NEW FELONY-MURDER

THEORY OF PROSECUTION, WHICH WAS

NEITHER PLED NOR REASONABLY

SUPPORTED BY THE EVIDENCE, NOR

“INVITED” BY DEFENSE COUNSEL'S

CLOSING ARGUMENT, AND WHEN

PETITIONER'S REQUEST FOR SURREBUT-

TAL ARGUMENT WAS DENIED.

TABLE OF CONTENTS

Reasons for Granting the Writ

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TABLE OF AUTHORITIES

Cases

Berger v. United States,

EE os wb poss sae'eues

Chambers v. Mississippi,

oe rere or

Moore v. United States,

344 F.2d 558 (D.C. Cir. 1965).........

United States v. Gleason,

616 F.2d 2 (2d Cir. 1979)

cert. denied 444 U.S. 1082 (1980)......

United States v. Lawson,

483 F.2d 535 (8th Cir. 1973)

cert. denied 414 U.S. 1133 (1974) .....

United States vu. Yaughn,

493 F.2d 441 (5th Cir. 1974)..........

Viereck v. United States,

og RL Pree eee ee ree

Walker v. Engle,

Page

.. 11,12,14

703 F.2d 959 (6th Cir. 1983) cert. denied

—___ US. ___, 34 Cr.L.4065 (10/31/83)

TABLE OF AUTHORITIES (Continued)

Statutes and Rules: Page

EN, Ws Wank see ei. ot ely a wesls 1

Section 782.04 Florida Statutes ................. 5

yp SES St | eer 1

Constitutional Provisions:

Sixth Amendment, United States Constitution ... 1,9

Fourteenth Amendment,

United States Constitution ................ 1, 9,13

Miscellaneous:

1 Kings 21:5-16 (The New English Bible —

SI I ist. s cde cp ada Whe ahi 6

iv

CITATION TO THE OPINION BELOW

The decision of the District Court of Appeal of

Florida, Third District, is reported at 436 So.2d 1016

(Fla. 3rd DCA 1983). (A.1-2).'

JURISDICTION

The Judgment of the District Court of Appeal of

Florida, Third District, was entered on August 9, 1983,

affirming Per Curiam, without opinion, Petitioner's

conviction. (A.1-2). The District Court of Appeal denied

a timely Petition for Rehearing on September 21, 1983.

(A3).? The jurisdiction of this Court is invoked under

28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The case sub judice involves Petitioner's rights to

a fair and impartial trial and to due process of law as

guaranteed by the Sixth and Fourteenth Amendments

to the United States Constitution. U.S. Const., Amend.

VI and XIV, §1. (A. 4).

'The symbol “A.” refers to the Appendix attached hereto.

"Review by the Supreme Court of Florida is precluded by

Florida Rule of Appellate Procedure 9.030(aX2XA) which bars review

of Per Curiam affirmed decisions of the District Courts of Appeal.

STATEMENT OF THE CASE

On March 17, 1982, Petitioner was indicted for the

first degree murder of Lance Anderson and the attempted

first degree murder of Frank Armstrong. (A. 6-7; R.

4-4A).’ Petitioner entered his plea of not guilty to the

charges. (R. 19). Immediately prior to trial, Respondent

elected not to seek the death penalty. (Tr. 5).‘

Petitioner’s jury trial commenced on July 19, 1982

and concluded on July 23, 1982. Following its

deliberations, the jury found Petitioner guilty of first

degree murder as charged in Count I and not guilty of

attempted murder as. charged in Count II. (Tr. 1395).$

The facts of this case reflect a homicide unfortunately

resulting from a classic love triangle. Petitioner, a veteran

Eastern Airlines pilot, met Kathleen Anderson, a flight

attendant for Eastern Airlines and the wife of the

victim, approximately four years prior to the death of

her husband, Lance Anderson, who was also a pilot for

Eastern Airlines. After working several flights together,

Petitioner and Mrs. Anderson became romantically

involved. (Tr. 1085-1090).

As time went by, Petitioner’s relationship with

Mrs. Anderson became closer and more intimate. Their

*The symbol “R.” refers to the Record on Appeal.

‘The symbol “Tr.” refers to the trial transcript.

‘The trial transcript inaccurately reflects a verdict of guilty

as to Count II. (Tr. 1395). However, the Clerk’s Minutes (R.17) and

the sentencing transcript (Tr. 1413-1414) remedy the initial inaccuracy

of the transcript. See, also, Tr. 1399.

respective children began to become involved in the

relationship. Petitioner moved out of the marital home

and was divorced from his wife in March of 1980. (Tr.

1093-1096, 1103-1104). Shortly thereafter, the victim

and Mrs. Anderson separated, with the victim leaving

their marital home. (Tr. 372-373, 1119). Petitioner and

his daughter continued spending more and more time

with Mrs. Anderson and her daughter. (Tr. 1119-1120).

On his own initiative, in December of 1980, the

victim moved back into his marital home. The relationship

between Petitioner and Mrs. Anderson continued. The

victiin learned of this relationship. Although Petitioner

and Mrs. Anderson had discussed marriage, she was

waiting for the “right” time to leave, in view of her

concerns about the effect that leaving her husband

would have on her future financial security. (Tr. 1120-

1121, 1103-1104, 376, 1130-1131, 488). On several occasions

during this period of time, Mrs. Anderson would examine

the contents of her husband's briefcase which he left

parked in his car while away. (Tr. 1132). On one such

occasion, Mrs. Anderson removed her husband's gun

from the glove compartment and gave it to Petitioner.

(Tr. 1132). This is the gun that Petitioner used to shoot

his lover’s husband. (Tr. 1209).

At trial, there was disagreement respecting the

continuing intensity of the romantic involvement between

Petitioner and Mrs. Anderson. Mrs. Anderson testified

that her romantic involvement with Petitioner ended

by the summer of 1981. Petitioner testified that, while

Mrs. Anderson rejected his requests that she leave her

husband and marry him, their romantic involvement

continued through February 24, 1982, the date of the

shooting. (Tr. 379-382, 1135-1159). The record is clear

that the two continued to see each other frequently, up

until the day of the shooting. The record is also clear

that prior to and during the early part of 1982, Petitioner

was drinking heavily. (Tr. 1213-1214).

On February 24, 1982, the day of the shooting,

Mrs. Anderson arrived at Petitioner’s townhouse in

the late morning. (Tr. 454, 1158). When she arrived,

Petitioner was drinking beer. (Tr. 453). According to

Petitioner, they talked, made love, and stopped briefly

at a friend’s house before going out to lunch. (Tr. 1159-

1160). Mrs. Anderson denied only that they made love.

(Tr. 395-397, 464-465). After lunch, during which they

shared a carafe of wine, Petitioner and Mrs. Anderson

parted company. (Tr. 399, 455-456, 1160-1162).

Appellant’s recollection of the remaining events

of the day was very limited and sporadic. He recalied

making arrangements to play in his weekly tennis game

at 7 o'clock that evening and continuing to drink both

going to and on the way home from the tennis game.

(Tr. 1163-1169).

Mrs. Anderson testified that at about 9:00 P.M.

that evening she received a call from Petitioner who

told her that he did not play tennis well that night and

his friends had given him a “hard time” about it. (Tr.

406). Petitioner did not remember this conversation.

He remembered only walking through a screen door on

his way to water plants, talking to his daughter, and

getting ready for bed. (Tr. 1170-1171).

Later that evening, Petitioner shot and killed Lance

Anderson on the front lawn of Anderson’s home (which

was located a number of miles away from Petitioner's

townhouse) when Anderson arrived home that evening

accompanied by Frank Armstrong. Although the record

is silent as to how Petitioner got to the Anderson

home, the evidence established that he drove his pickup

truck to a point somewhere near the house and then

pedaled to the home on his daughter's bicycle, which

was seen by the victim and Armstrong, in plain view,

leaning against the front fence. (Tr. 323-324). The shooting

took place with Petitioner, wearing a ski mask with

eyeholes cut out, firing from a close range into the

Anderson vehicle, with Anderson firing back at Petitioner.

(Tr. 308-313, 328-332). Before succumbing, Anderson

was able to shoot Petitioner in the stomach. Shortly

after the shooting, Petitioner was found passed out

behind the wheel of his truck, after having crashed into

a light pole about a mile from the Anderson home. (Tr.

535, 547-548, 552).

A large box constructed by Appellant to act as a

crude, homemade silencer was found on the lawn of the

Andersen home near the scene of the shooting. (Tr.

565-566). Inside the cab of Petitioner’s truck, the police

found, among other things, a pair of handcuffs, rubber

gloves, money wrappers, and the ski mask. The bicycle

was found in the back of the truck. (Tr. 549-551).

The emergency room physician who treated

Petitioner testified that his vomit exuded a clear odor

of alcohol and that he could smell alcohol on Petitioner's

breath. (Tr. 1072 -1077).

Although Florida's murder statute (Sec. 782.04

Flerida Statutes) contains a provision for first degree

felony-murder (A. 4-5), Respondent procured an Indictment

charging only first degree premeditated murder. (A.

6-7; R. 4-4A). Respondent conducted its case-in-chief on

a straight “premeditation” theory. The motive, of course,

was Mrs. Anderson’s rejections of Petitioner's continual

requests that she leave her husband and marry him.

The Respondent’s theory of classic premeditation is

clearly reflected in the prosecutor's “initial” closing

argument. (Tr. 1265-1298). The theory of the defense,

as articulated during closing argument, was the negation

of premeditation as a result of several factors, including

Petitioner's alcoholism, as well as the inducements of

Mrs. Anderson, which were successful as a result of

Petitioner's “blind” love for her. (Tr. 1307-1346).°

After defense counsel's closing argument, without

warning, and for the first time during his “rebuttal”

closing argument, the prosecutor raised, for the jury's

consideration, an entirely new felony-murder theory of

prosecution, alleging that the murder really occurred

in the course of a kidnapping:

If he was planning to abduct him in the yard

or kill him in the yard the way he did, he

would not have left his bicycle in the yard and

went through all these precautions, the changing

of clothing, the ski mask —

(A. 7; Tr. 1355).

“During closing argument, Petitioner's counse! described Mrs.

Anderson as a modern-day “Jezebel”. (Tr. 13826, 1345). See 1 Kings

21:5-16 (The New English Bible — Standard Edition).

Over objection, the prosecutor continued:

He used the glove not to leave fingerprints or

to get fibers on his hands.

The handcuff for abducting Lance Anderson

to get him from the house, to take him away

from the house.

(A. 8; Tr. 1356).

Again, over objection of counsel, the argument

continued:

What is the purpose of the handcuffs that he

had just bought because he just wanted—he

had just happened to put them in the truck to

abduct Lance Anderson away from the scene

of his lover, Kathy Anderson, who would have

never known, would have been waiting and

waiting. So, the gloves wouldn't leave

fingerprints. And the money wrappers to leave

in Lance Anderson's car.

* * * * *

Before [Lance Anderson] gets out of the car he

is abducted by a masked man and ordered

back into the car and he is abducted and dumped

somewhere, some canal. Handcuffed.

(A. 9, 10; Tr. 1357-1358).

On this new theory, and over the continuing objection

of counsel, the prosecutor concluded:

Why the money wrappers?

To cover his tracks. You all heard testimony

about the rich businessman, don’t you love it?

The money wrappers are in his vehicle where

the body is. The motive is robbery, not love,

robbery. He’s gone. He’s a free man. But — but,

he got caught. He didn’t have time to use the

suppressor. He had time to get the mask and

hold it down and that’s about it.

(A. 11; Tr. 1358-1359).

The record is replete with Petitioner's vociferous

objections to this improper rebuttal closing argument.

(A. 7-11; Tr. 1355-58). At the conclusion of the prosecutor's

argument, Petitioner moved for a mistrial, (A. 11; Tr.

1366-1367) for surrebuttal, (A. 12, Tr. 1367), and to

strike the prosecutor's improper argument. (A. 13-15; Tr.

1370-1373). retitioner’s objections were overruled and

his motion for mistrial was denied. (A. 12, 13, 15; Tr. 1367-

1373). Petitioner’s post-trial motion for new trial directed,

inter alia, to the impropriety of the prosecutor's rebuttal

closing argument, was likewise denied. (R. 205-206A).

In accordance with the requirements of the applicable

Florida statute, the court sentenced Petitioner to life

imprisonment with a minimum mandatory twenty-five

year prison term prior to eligibility for parole. (Tr.

1413).

On August 9, 1983, the District Court of Appeal of

Florida, Third District, affirmed Per Curiam and without

opinion Petitioner’s conviction. (A. 1-2). A timely Petition

for Rehearing was denied on September 21, 1983. (A.

3). The federal question for which review is sought

herein was fully raised by Petitioner in his briefs and

arguments to the District Court of Appeal, Third District.’

REASONS FOR GRANTING THE WRIT

The granting of this Petition for Writ of Certiorari

will advance the administration of criminal justice by

clarifying the proper application to all criminal defendants

of the Sixth and Fourteenth Amendments’ guarantees

of a fair and impartial trial, free from prosecutorial

misconduct, and establish much needed rules of law

with respect to the permissible scope of State prosecutors’

rebuttal closing arguments. Unless redressed, Petitioner

will suffer irreparable, blatant violations of rights

guaranteed to him by the Sixth and Fourteenth

Amendments to the United States Constitution. State

court enforcement of the right to a fair and impartial

trial ought to be consistent with this Court’s decisions.

In addition to the remedial nature of the relief sought

herein, granting this Writ will enable this Court to

offer much needed clarification and amplication of its

prior decisions in the area of a defendant’s right to a

fair and impartial trial unimpeded by prosecutorial

misconduct.

"Initial Brief of Appellant — Point One On Appeal; Reply Brief

of Appellant — Point One On Appeal. Additionally, the matter was

fully presented at oral argument, which occurred before the District

Court of Appeal on July 22, 1983, and in the Motion for Rehearing.

9

1. PETITIONER WAS DENIED A FAIR AND

IMPARTIAL TRIAL AND DUE PROCESS

OF LAW BY THE PROSECUTOR'S

“REBUTTAL” CLOSING ARGUMENT,

DURING WHICH THE PROSECUTOR

RAISED, FOR THE FIRST TIME, AN

ENTIRELY NEW FELONY-MURDER

THEORY OF PROSECUTION, WHICH WAS

NEITHER PLED NOR REASONABLY

SUPPORTED BY THE EVIDENCE, NOR

“INVITED” BY DEFENSE COUNSEL’S

CLOSING ARGUMENT, AND WHEN

PETITIONER’S REQUEST FOR SURRE-

BUTTAL ARGUMENT WAS DENIED.

Notwithstanding the prosecutor's thinly veiled

assertions that he was merely responding to the closing

arguments of defense counsel (A. 12; Tr. 1367-1369), the

record in this case makes it abundantly clear that the

prosecutor employed a “gotcha” strategy in securing a

conviction in this case. Although a statutory vehicle

existed, the prosecutor chose not to seek an indictment

alleging felony-murder, or to even indict alleging felony-

murder in the alternative. (R. 4-4A). The Respondent’s

case-in-chief was prosecuted along classic premeditation

lines, with Petitioner’s professed love for Mrs. Anderson

being the motive. Not once in his initial closing argument

(Tr. 1265-1298), did the prosecutor refer to a felony-

murder theory. Instead, he waited until after defense

counsel had exercised his only opportunity to speak to

the jury when he launched this surprise attack! Petitioner

was denied the opportunity to respond to the prosecutor's

remarks, which were the last comments on the evidence

to be heard by the jury.

10

This Court has long condemned arguments by

prosecuting attorneys “[which contain] improper

insinuations and assertions calculated to mislead [a]

jury.” Berger v. United States, 295 U.S. 78, 85 (1935). In

Berger, this Court stated:

The United States Attorney is the

representative not of an ordinary party to a

controversy, but of a sovereignty whose

obligation to govern impartially ‘s as compelling

as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution

is not that it shall win a case, but that justice

shall be done. As such, he is in a peculiar and

very definite sense the servant of the law, the

twofold aim of which is that guilt shall not

escape or innocence suffer. He may prosecute

with earnestness and vigor —indeed, he should

do so. But, while he may strike hard blows, he

is not at liberty to strike foul ones. It is as

much his duty to refrain from improper methods

calculated to produce a wrongful conviction as

it is to use every legitimate means to bring

about a just one.

It is fair to say that the average jury, in a

greater or less degree, has confidence that

these obligations, which so plainly rest upon

the prosecuting attorney, will be faithfully

observed. Consequently, improper suggestions,

insinuations, and, especially, assertions of

personal knowledge are apt to carry much

11

weight against the accused when they should

properly carry none.

Id. at 88.

In Viereck v. United States, 318 U.S. 236 (1943),

this Court applied the principles enunciated in Berger

to a prosecutor's closing remarks to a jury.

As in Viereck, the prosecutor's comments sub judice

were prejudicial to Petitioner by inviting speculation

by the jury on a matter that was, up until the time of

the prosecutor’s rebuttal closing argument, a non-existent

issue, to-wit: felony-murder. The prosecutor argued that

Petitioner’s conduct was part of a carefully conceived

plan to abduct the victim in his own vehicle, make the

motive appear to be robbery, and dump him in a canal.

When the scheme immediately went awry, Petitioner

shot the victim in the course of the abduction. (A. 7-11;

Tr. 1355-1359). As carefully planned by the prosecutor,

defense counsel was given no opportunity to rebut

these assertions, even though the defense had been

tailored to meet the clearly expressed prosecutorial

theory which ran throughout Respondent's presentation

of its case, and which totally failed to include the concept

of felony-murder.

Although this Court has not addressed the precise

issue of the permissible scope of a prosecutor's rebuttal

closing argument, those Federal Courts which have

considered the issue have generally acknowledged the

rule prohibiting a prosecutor from developing new

acguments in the rebuttal portion of his closing argument

to the jury, and, instead, restricting the prosecutor to

12

refuting those arguments advanced by defense counsel.

See, Moore v. United States, 344 F.2d 558 (D.C. Cir.

1965); United States v. Lawson, 483 F.2d 535 (1973)

cert. denied 414 U.S. 1133 (1974); cf. United States vu.

Yaughn, 493 F.2d 441, 445 (5th Cir. 1974) (Rives, J.

dissenting). Significantly, in United States v. Gleason,

616 F.2d 2 (2d Cir. 1979) cert. denied 444 U.S. 1082

(1980), the Second Circuit found the prosecutor's rebuttal

closing argument to be improper, but declined to reverse

because the trial judge had offered the defendants the

opportunity to give surrebuttal argument (which they

declined) to negate the possibility of prejudice. Jd. at 26.

The failure of the trial court to allow Petitioner

surrebuttal argument to respond to the prosecutor's

felony-murder theory denied Petitioner due process of

law in violation of the Fourteenth Amendment. In

Chambers v. Mississippi, 410 U.S. 284 (1973), this Court

held that: “[t]he right of an accused in a criminal trial

to due process is, in essence, the right to a fair opportunity

to defend against the State’s accusations.” Jd. at 294. In

Chambers, this Court held that Mississippi's literal

application of its “voucher rule”, and its rules pertaining

to hearsay, had operated to deprive the defendant,

under the facts of that case, to due process and to a fair

trial. Jd. at 302-303.

In the instant case, as in Chambers, by virtue of the

prosecutor's rebuttal closing argument, Petitioner was

denied “. . . the right to a fair opportunity to defend

against the State’s accusations.” Jd. at 294. Although

not testimony or evidence, the prosecutor’s remarks

during his rebuttal closing argument constituted

“eleventh-hour unfairness and surprise”. United States

13

u Gleason, 616 F.2d at 26. The timing of the prosecutor's

remarks was obviously calculated to mislead the jury

and secure a conviction by improper methods. Berger

v. United States, 295 U.S. 78 (1935). The prosecutor's

action clearly exceeded the bounds of propriety and

went from a “hard blow” to a “foul [blow]”. Jd. at 88;

Viereck v. United States, 318 U.S. 236 (1943). The

prejudicia] nature of the prosecutor's remarks was

exacerbated by the fact that his comments went

unanswered by Petitioner, uncensored by the trial court,

and constituted the final argument heard by the jury.

As in Chambers v. Mississippi, 410 U.S. 284 (1973),

Petitioner was denied his right to a fair and impartial

trial and to due process of law. Cf. Walker v. Engle, 703

F.2d 959 (6th Cir. 1983) cert. denied ___ U.S. ___, 34

Cr.L.4065 (10/31/83).

14

CONCLUSION

Petitioner respectfully urges this Court, for the

reasons set forth above, to grant a Writ of Certiorari

and to reverse the decision below.

Respectfully submitted,

JOEL HIRSCHHORN, P.A.

By: Joel Hirschhorn, Esq.

2766 Douglas Road

Miami, Florida 33133

Telephone: (305) 445-5320

(Counsel for Petitioner)

15

Appendix

Gerald John RUSSELL,

Appellant,

v.

The STATE of Florida,

Appellee.

No. 82-1663

District Court of Appeal of Florida,

Third District.

Aug. 9, 1983.

Rehearing Denied Sept. 21, 1983.

Appeal from Circuit Court, Dade County; Joseph

P. Farina, Judge.

Joel Hirschhorn, Miami, for appellant.

Jim Smith, Atty. Gen., and Penny Hershoff Brill,

Asst. Atty. Gen., for appellee.

Before HENDRY, NESBITT and BASKIN, JJ.

PER CURIAM.

Affirmed. Breedlove v. State, 413 So.2d 1 (Fla.),

cert. denied, _____s-—dvU'S«. 103 S.Ct. 184,

74 L.Ed.2d 149 (1982); see also James v. State, 334

App. 1

So.2d 83 (Fla. 3d DCA 1976); Zamot uv. State, 375 So.2d

881 (Fla. 3d DCA 1979); Rose v. State, 425 So.2d 521

(Fla. 1982); Sireci v. State, 399 So.2d 964 (Fla. 1981),

cert denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d

862 (1982); Forehand v. State, 126 Fla. 464, 171 So. 241,

243 (1936); Lecoin v. State, 418 So.2d 336 (Fla. 3d

DCA 1982).

App. 2

“>

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1983

WEDNESDAY, SEPTEMBER 21, 1983

CASE NO. 82-1663

GERALD JOHN RUSSELL,

Appellant,

vs.

THE STATE OF FLORIDA,

Appellee.

Upon consideration, appellant's motion for rehearing

is hereby denied.

A True Copy

ATTEST:

LOUIS J. SPALLONE

Clerk District Court of

Appeal, Third District

By [Illegible]

Chief Deputy Clerk

ee: Joel Hirschhorn

Penny Hershoff Brill

App. 3

AMENDMENT [VI.]

Jury trial for crimes, and procedural rights

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 defence.

AMENDMENT XIV.

1. Citizenship rights not to be abridged by states

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.

782.04 Murder

(1Xa) The unlawful killing of a human being:

1. When perpetrated from a premeditated design

to effect the death of the person killed or any human

being; or

App. 4

2. When committed by a person engaged in the

perpetration of, or in the attempt to perpetrate, any:

a. Trafficking offense prohibited by s. 893.135(1),

b. Arson,

c. Sexual battery,

d. Robbery,

e. Burglary,

f. Kidnapping,

g. Escape,

h. Aircraft piracy, or

i. Unlawful throwing, placing, or discharging of

a destructive device or bomb; or

3. Which resulted from the unlawful distribution

of opium or any synthetic or natural salt, compound,

derivative, or preparation of opium by a person 18

years of age or older, when such drug is proven to be

the proximate cause of the death of the user,

is murder in the first degree and constitutes a capital

felony, punishable as provided in s. 775.082.

(b) In all cases under this section, the procedure

set forth in s. 921.141 shall be followed in order to

determine sentence of death or life imprisonment.

App. 5

FILED FOR RECORD '82 MAR 17

IN THE CIRCUIT COURT OF THE ELEVENTH

JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR

DADE COUNTY FALL TERM, 1981

82-5815 (14)

STATE OF FLORIDA

vs.

GERALD RUSSELL,

DEFENDANT.

INDICTMENT

I, FIRST DEGREE MURDER

Il. ATTEMPTED FIRST DEGREE MURDER

IN THE NAME AND BY TITE AUTHORITY OF

THE STATE OF FLORIDA:

The Grand Jurors of the State of Florida, duly

called, impaneled and sworn to inquire and true

presentment make in and for the body of the County of

Dade, upon their oaths, present that on the 24th day of

February, 1982, within the County of Dade, State of

Florida, GERALD RUSSELL, did unlawfully and

feloniously, from a premeditated design to effect the

death of a human being, kill LANCE ANDERSON, a

human being by shooting him with a firearm, to wit: A

handgun, in violation of Florida Statutes 782.04 and

775.087, to the evi! example of al] others in like cases

App. 6

ie ta

offending and against the peace and dignity of the

State of Florida.

COUNT II

The Grand Jurors of the State of Florida, duly

called, impaneled and sworn to inquire and true

presentment make in and for the body of the County of

Dade, upon their oaths, present that on the 24th day of

February, 1982, within the County of Dade, State of

Florida, GERALD RUSSELL, did unlawfully and

feloniously attempt to commit a felony, to wit: Murder

in the First Degree, upon FRANK ARMSTRONG, and

in furtherance thereof, the defendant GERALD

RUSSELL, with felonious intent and from a premeditated

design to effect the death of a human being, attempted

to kill FRANK ARMSTRONG, a human being, by

shooting at him with a firearm, to wit: A handgun, in

violation of Sections 782.04 (1), 777.04 (1), and 775.087

Florida Statutes, to the evil example of all others in

like cases offending and against the peace and dignity

of the State of Florida.

* * *

[1355-1359]

(Mr. KAHN PROSECUTOR] .. . why, because he left

the bicycle in the front of the house. If he was planning

to abduct him in the yard or kill him in the yard the

way he did, he would not have left his bicycle in the

yard and went through all these precautions, the changing

of clothing, the ski mask—

MR. HIRSCHHORN: I hate to object. “Abduction”

on the bicycle. I didn’t argue “abduction.”

App. 7

MR. KAHN: Based upon your theory —

MR. HIRSCHHORN: Objection as to someone

on the bicycle — we have not talked about abduction.

MR. KAHN: I changed the wording earlier. He

is correct, Your Honor. I changed it earlier, Your Honor.

To kill him when he arrived there.

MR. HIRSCHHORN: All right.

MR. KAHN: The bicycle in front of the house

where it was seen. But he’s there with the ski mask,

gloves, so as not to leave fingerprints or to avoid getting

the fiberglass on his arms. He needed to have his hands

or his right sleeve inside this fiberglass box under

this —as the defendant tells us on the stand, “It happened a

year ago when I was test firing out in my backyard.”

I think it might have been washed in a year, but

we know he had his hand in there. He used the glove

not to leave fingerprints or to get fibers on his hands.

The handcuff for abducting Lance Anderson to

get him from the house, to take him away from the

house.

MR. HIRSCHHORN: Excuse me, Judge. I object

to this theory of abduction and the handcuffs that were

found.

I mean, I never argued anything about abduction.

I can’t believe Counsel.

App. 8

MR. KAHN: We are argued the handcuffs has

significance as of the surgical gloves.

MR. HIRSCHHORN: The handcuffs were in the

car, not found at the scene. If it had been at the scene,

but it was found in the car.

THE COURT: I'm going to allow that in closing

arguments.

Thank you.

MR. KAHN: Thank you.

What is the purpose of the handcuffs that he had

just bought because he just wanted —he had just happened

to put them in the truck to abduct Lance Anderson

away from the scene of his lover, Kathy Anderson, who

would have never known, would have been waiting and

waiting. So, the gloves wouldn't leave fingerprints.

And the money wrappers to leave in Lance Anderson's

car.

He had no idea that the witness was with the

victim in the car, no idea about Frank Armstrong.

Remember that.

“I never expected a witness to be there.”

Lance Anderson was coming home alone on a very

dark, quiet street.

You look at the photographs very easily. The car is

there. There was a car here (indicating). If you remember

App. 9

the photograph of Tom Sloat’s car before the house,

right in front of it. There was already a car right in

front of the house. There’s the drive that goes off in a

circle. He’s here (indicating) and Lance Anderson comes.

Before he gets out of the car he is abducted by a

masked man and ordered back into the car and he is

abducted and dumped somewhere, some canal.

Handcuffed.

MR. HIRSCHHORN: Your Honor, I am going to

object. He has gone way beyond our theory. There is

no lesser included third degree murder in this case and

Counsel is talking about abduction. We never had evidence

like that.

Now, he is talking about a canal, talking about a

canal.

THE COURT: I don’t think there is any charge,

just a theory by the State. There are no additional

charges in that, just those as presented.

MR. HIRSCHHORN: It is unfair rebuttal because

I was not given a chance to explain. Rebuttal should be

limited to what I bring up.

MR. KAHN: Counsel asked for the relevancy of

these materials, Your Honor, the surgical gloves, the

handcuffs. I’m responding to questions asked me.

MR. HIRSCHHORN: I didn’t ask concerning

relevancy. There’s nothing, apparently —

THE COURT: Overruled.

App. 10

Thank you.

MR. KAHN: The money wrappers, the defense

asked the significance of the money wrappers. He went

so far to explain that the noise suppressor wasn’t so

good as one that would have been to suppress some of

the noise.

Why the money wrappers?

To cover his tracks. You all heard testimony about

the rich businessman, don’t you love it? The money

wrappers are in his vehicle where the body is. The

motive is robbery, not love, robbery. He’s gone. He’s a

free man. But — but, he got caught. He didn’t have time

to use the suppressor. He had time to get the mask and

hold it down and that’s about it.

[1366-1367]

MR. HIRSCHHORN: I move for a mistrial on

the grounds that Mr. Kahn, I’m saying, was intentionally,

intentionally raising issues that was not raised by

pleadings nor the proof, nor which was raised in my

closing argument. He made reference to abduction. He

then made reference to the canal, dumping the gun in

the canal. He made reference to a robbery, all of which

is totally inconsistent and not even logical. There was a

silencer down there. In addition, I do not known how

anyone could abduct somebody on a bicycle.

THE COURT: Response?

App. 11

MR. KAHN: My response argument is what

relevancy of certain items were asked me about and I

told about them.

THE COURT: I am denying the motion based

upon the State’s response.

MR. HIRSCHHORN: I'm going to request

surrebuttal. Let me respond before you. I have a right

under the law and I can bring my memorandum of law

as soon as I call my office. I prepared one several years

ago before they had it. Surrebuttal limited in there

limited Florida Federal Court when the Court overrules

an objection not brought in by the defendant in the

middle of argument. I have been granted surrebuttal

twice in 15 years of law.

{1367-1368]

MR. HIRSCHHORN: We submit that the State's

bringing up abduction and robbery and also talking

about a canal is bias and theoretical the significance of

the handcuffs and money wrappers, which frankly does

not make sense to me.

THE COURT: That's right.

[1370]

THE COURT: ....I believe that the defense

lawyer's objection during the course of the rebuttal by

the State is inference upon inference and on certain

defenses not being made and the fact that no pleadings

App. 12

were ever presented. These issues were not actually

formed more or less and would say what the surrebuttal

would be. And therefore, I am going to deny it and

allow the Appellate Court to consider whether or not I

was right or wrong in granting the motion for mistrial.

MR. HIRSCHHORN: In denying the motion for

mistrial?

THE COURT: Yes.

* * * *

[1370]

MR. HIRSCHHORN: Your Honor, just to be

consistent, we move to strike all argument made by

Mr. Kahn relative to insanity. I would ask you to instruct

the jury relative to the insanity and the abduction,

' robbery and canals.

THE COURT: As to what?

MR. HIRSCHHORN: No such crime’s been

committed.

[1371-1373]

MR. HIRSCHHORN: No, I'll amend that requested

instruction. Any argument relative to abduction to

commit a robbery.

THE COURT: What?

App. 13

MR. HIRSCHHORN: Any of Mr. Kahn’s argument

that go on —

THE COURT: What do you want to me to say?

MR. HIRSCHHORN: Disregard any of Mr. Kahn's

argument in which he said that the defendant intended

to abduct for the purpose of, for possible purpose of

robbing.

MR. KAHN: I never said that.

MR. HIRSCHHORN: Whatever it was, I hit the

roof. Whatever you said, abduction for the purpose of

robbing —

MR. KAHN: I didn’t. I never said that. The only

time I mentioned robbery was in regard to the money

wrappers to make it appear like a robbery. I never said

that. He’s putting words in my mouth now. His intent

might have been that, but he was never able to do it

because they discovered him on the lawn.

MR. HIRSCHHORN: You said he wanted it to

look like a robbery.

MR. KAHN: To make it look like a robbery.

MR. HIRSCHHORN: He is not charged with

attempted abduction or attempted robbery.

THE COURT: No, that I can’t believe that the

jury would draw an inference that he committed those

crimes but that he was laying there. That’s a theory as

to why he was there at the time.

App. 14

MR. KAHN: Correct.

MR. HIRSCHHORN: Can I give one sentence? If

you believe he was there to abduct him on his daughter's

bike then you can vote him guilty of first degree murder.

THE COURT: They are not going to think that.

I'm just telling you I'm going to stand on the motion

and my ruling.

MR. HIRSCHHORN: I assume my request is

denied?

THE COURT: Yes.

App. 15