# Petition — Russell v. Florida

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 464 U.S. 1070

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0633%3A1. Public record. Not legal advice.