Petition — ARMSTRONG v. FLORIDA (No. 83-5145)

Supreme Court brief1983

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IN THE SUPREME COURT OF THE UNITED STATES”

OCTOBER TERM, 1982

SAMPSON ARMSTRONG, PETITIONER

Vv.

STATE OF FLORIDA, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

JAY TOPKIS

PETER BUSCEMI

(Counsel of Record)

MARK S. OLINSKY

PAUL, WEISS, RIFKIND, WHARTON

& GARRISON

A partnership includin

rotessional co rations

Massachusetts Avenue, N.W.

Washington, D-C. 20036

302) $23-1843

ROBERT YOUNG

WILKINS, MOORMAN & YOUNG

Post Office Box 428

Bartow, Florida 33830

RECEIVED & Ii!SPECTED

SUPREME COURT, U

DATE

Neeser

Zale

Se

QUESTION PRESENTED

Whether the governing Florida statute and the trial

court's instructions to the jury impermissibly limited the

mitigating circumstances that the sentencing authorities

could consider in deciding whether to recommend and impose

*/

the death penalty.—

L

5 */ In addition to petitioner and the State of Plorida,

E ~ Louie L. Wainwright, Secretary, Florida Department of

Corrections, and Charles G. Strickland, Jr., Superin-

tendent, Florida State Prison, were parties in the court

be low.

(i)

TABLE OF CONTENTS

Page

GUSSEION PRESENTED 2 ccs ccccnccccccecvcccedccccccce (i)

Pe ar CPE EROS. sc ccncbccedccnsdecesetoceesor (iii)

Pen DEON oe cncccondocendesersvecvecececoecoee l

SEAT IE cocccccceusecesccscoevcccéececcccecces 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED eevee eeeeeeeeeeeeeseeseeeeeeeeeeeeeeeeeee 2

STATEMENT eseeervr eee eeeee eee eeeee see ee ee eee eeeeeeeee 2

REASONS FOR GRANTING THE PETITION ......cceccceccee 8

THE STATUTE AND JURY INSTRUCTIONS UNDER

WHICH PETITIONER WAS SENTENCED TO DEATH

DEPRIVED THE JUDGE AND JURY OF THE CON-

STITUTIONALLY REQUIRED FREEDOM TO CON-

SIDER AND GIVE INDEPENDENT WEIGHT TO

ALL RELEVANT MITIGATING EVIDENCE .....ccccccccces 8

CONCLUSION sree eee eee eeeeeeeeeee sree ee eee eeeeeeeee 16

APPENDIX a seer eeeveeeeeeeeeeeeae eee ee eee eee eeeeeeee la

APPENDIX B seeeeeeeeee ee eeeeeeene eeeer ee eee eee eeeeee l3a

APPENDIX Cc eeeer ee ee er eee eee eee eeee eee eeeeeeeeeeeee l4a

APPENDIX D sree er eee eee e eee eeeeeeeeee ese eev ee eeeeeeene 36a

APPENDIX E eseee eee eee eee e eevee e eee eeee e*eeeeeeeeeeee 46a

APPENDIX PF errr eee eeeee ee ee eee eeeeeee eeeeeeeeeeeee 48a

APPENDIX G eee ee eo eee eee eeeee eee eeeee eeeeeeeeeeeeee 5la

H er eee ee eee e eee eeeeeeeeeeee efeeeeeeeeeeee ll7a

APPENDIX

APPENDIX I eee ee eeee eee eeeeeeeeeeeeeeeeeeeeeeeeee 122a

(ii)

TABLE OF AUTHORITIES

Cases

Armstrong v. State, 429 So.2d 287 (Fla. 1983) ...

Armstrong v. State, 399 So.2d 953 (Fla. 1981) ...

Bell Ve Ohio, 438 U.S. 637 (1978) eeeeeeeeeeeeeee

Casper v. State, 336 So.2d 1133 (Pla. 1976),

cert. denied, 431 U.S. 925 (1977) evevcccccecee

Eddings v. Oklahoma, 455 U.S. 104 [ApEe Yeeeeuse s

Enmund v. Florida, U.S. » 102 S. Ct.

(19 COCO COO C oO rere ereerereereeeeeeeeee

Purman v. Georgia, 408 U.S. 238 (1972) ..........

Gregg v. Georgia, 428 U.S. 153 (1976) ..ccccceces

Jurek v. Texas, 428 U.S. 262 (1976) ..cccccccccce

Lockett Ve Ohio, 438 U.S. 586 (1978) eee eee ee eee

Roberts v. Louisiana, 428 U.S. 325 Sarees 2 oéeean

Sandstrom v. Montana, 442 U.S. 510 tig. | eee

Songer v. State, 365 So.2d 696 (Fla. 1978),

cert. denied, 44] U.S. 956 (1979) eeeeeeeeeeeee

Washington v. Watkins, 655 F.2d 1346

(Sth Cir. 1981), cert. denied, 456 U.S.

949 (1982) CPCS HSHSHHE SHEESH EHT SESE EEE EEDEEEEES

Woodson v. North Carolina, 428 U.S. 280

) CHS SHS HHEHT ESTES HTSE ETS SEESEEEEES

Constitutional and Statutory Provisions

Amendment VIII, United States Constitution ......

Amendment XIV, United States Constitution .......

Title 28, United States Code, Section 1257(3) ...

Pla. Stat. Section 782.04 .....ccccccccccccccccccs

Pla. Stat. Section 775.082 ....cccccccccccevccees

Fla. Stat. Section 921.141 eeee ee ee ee ee ee ee eeeeee

(iii)

10

8, ll,

14, 15

2, 6

10

12

12

3, 8, 9,

10, 11, 15

16

12, 14

9, 10, 14

12, 13,

14, 15

16

1

Other Materials

He 26 Weisberg, In Mitigation of the

Pena of ath: ett v. Ohio

t t e nt's

tons: oray on of tigating Circ

stances, alit. L. R. 317 DEE ks chovewwess ae

Journal of the Florida House of

resentatives cia ssion

eeeepeeeaeee ee ee eee eee eeee ee ee ee ee ee eee eeeeee 10

ig

ls

°

| of the Florida Senate, Special

on

eeeeeeew eee eee ee eevee ee ee ee ee eee eaeeee 10

Senate Staff Analysis and Economic Impact

Florida), May revised) ..... 1l

(iv)

—- > Ce ct = - -- + a —: oe - So

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No.

SAMPSON ARMSTRONG, PETITIONER

Ve

STATE OF FLORIDA, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

Petitioner Sampson Armstrong, by his undersigned

counsel, petitions for a writ of certiorari to review the

judgment of the Supreme Court of Florida in this case.

OPINIONS BELOW

The opinion and judgment of the Supreme Court of

Florida on collateral review (App. A, infra, la-l2a) are

reported at 429 So. 2d 287. The written and oral opinions

of the trial court on collateral review (App. C, infra,

l4a-35a) are not reported.

The opinion of the Supreme Court of Florida on

direct appeal (App. D, infra, 36a-45a) is reported at 399

So.24 953.

TE

; J : a , ee

JURISDICTION

The judgment of the Supreme Court of Florida was

entered on January 20, 1983. A petition for rehearing was

denied on April 28, 1983 (App. 8, infra, 13a). The juris-

diction of this Court is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

l. The Eighth Amendment provides: “Excessive

bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.”

2. Section 1 of the Fourteenth Amendment states,

in pertinent part: "No State shall * * * deprive any person

of life, liberty, or property, without due process of law

se ee

3. The relevant provisions of Florida law,

Sections 782.04, 775.082, and 921.141, Florida Statutes,

are set forth in Appendix H, infra.

STATEMENT

The Court is already familiar with this case.

Petitioner is the co-defendant of Earl Enmund, whose capital

sentence this Court reversed last year. Enmund v. Florida,

ULS. , 102 S. Ct. 3368 (1982). Petitioner's

sentence of death should also be reversed, because the

sentencing judge and advisory jury lacked the constitu-

tionally required freedom to consider and give independent

weight to all relevant mitigating evidence.

On the evening of September 30, 1975, following a

jury trial, petitioner and his co-defendant Enmund were

ean

Fi

convicted on two counts of first-degree murder and one count

of robbery. Immediately thereafter, at approximately 9:00

pem., the trial court commenced a separate sentencing

proceeding before the trial jury.—’

The presentation of

evidence by both defendants, counsel's arguments to the jury,

and the court's instructions on sentencing were all completed

by 9:31 p.m. (Tr. 1438). One half hour later, at 10:02 p.m.,

the jury recommended that both defendants be sentenced to

death (ibid.). The court immediately adopted the jury's

recommendation and sentenced both defendants to death on the

murder counts (App. E, infra, 46a~-47a).

At the time petitioner was sentenced, nearly three

years before this Court's decision in Lockett v. Ohio, 438

U.S. 586 (1978), the governing Florida statute specified

seven mitigating circumstances that were to be weighed by

judge and jury against any aggravating circumstances that

might be found to exist. See Section 921.141(6), Florida

Statutes (1982 Supp.) (reproduced in App. H, infra, 120a-l2la).

The statute directed the jury to determine “[w]hether suffi-

cient mitigating circumstances exist as enumerated in subsec-

tion (6), which outweigh the aggravating circumstances found

to exist * * *." Section 921.141(2)(b) (emphasis added).

The statute further provided that, as a precondition to

imposing a sentence of death, the trial court was required to

make a written finding that “there are insufficient mitigating

circumstances, as enumerated in subsection (6), to outweigh

*/ Under Florida procedure, the jury advises the trial judge

whether to impose the death penalty. See Fla. Stat.

§ 921.141(2).

the aggravating circumstances.” Section 921.141(3)(b)

(emphasis added) .—’

In the sentencing proceeding, the court instructed

the jury in a manner that tracked the restrictive language of

the statute. The jury was told to consider “whether suffi-

cient aggravating circumstances as hereafter enumerated exist

to justify the death sentence” (Tr. 1434) (emphasis added).

In parallel language, the court instructed the jury to

consider “whether sufficient mitigating circumstances exist

as hereafter enumerated which outweigh the aggravating

circumstances found to exist" (Tr. 1434) (emphasis added).

The court then listed the eight statutory aggravating circum-

stances and the seven statutory mitigating circumstances (Tr.

1434-1436). The jury's verdict form was equally specific

and limited; it asked “whether sufficient mitigating circum-

stances defined by the Court's charge do outweigh such

aggravating circumstances” (Tr. 1436) (emphasis added).

The court's oral £ indings—’ further demonstrate

its exclusive focus on the mitigating circumstances enumerated

by statute (Tr. 1446):

*/ The italicized phrases in subsections (2)(b) and (3)(b)

were eliminated from the statute in 1979. See the

iw notes following Section 921.141 (App. H, infra,

**/ The trial court failed to enter written findings at the

time of sentencing, notwithstanding the requirement in

Fla. Stat. § 921.141(3). Nineteen months later, in

ril 1977, under the mandate of the Supreme Court of

Florida, the trial judge belatedly entered the required

findings, stating that “the defendant was 23 years of

age at the time of this offense and this constitutes the

only possible mitigating circumstance as to the defendant

se 7 .. Armstrong v. State, 399 So.2d 953, 962

Pla. .

I find that the [aggravating circumstances found to

exist] are not set off by mitigating circumstances,

in particular, the age of Defendant, nor do I find

from my review of the evidence of the case that the

Defendant was acting under duress nor under the sub-

stantial domination of another person.

Significantly, the specific mitigating circumstances men-

tioned and rejected by the judge -- age, duress, and

domination by another -- follow directly from the statu-

tory enumeration. See Section 921.141(6)(e), (£), (g).

In March 1981, the Supreme Court of Florida

affirmed petitioner's conviction and sentence on direct

appeal (App. 9), infra, 36a-45a), Chief Justice Sundberg

dissented with respect to the sentence of death because of

“substantial errors in the aggravating findings" (id. at

44a-45a).—/ Notwithstanding these substantial errors,

the court affirmed the death sentence, explaining that

the trial court "found that there were no mitigating cir-

cumstances" and that, accordingly, the errors “did not

impair the process of weighing the aggravating against

the mitigating circumstances because there were no miti-

gating circumstances to weigh.” Id. at 43a, 44a.

The trial court's finding of “no mitigating

circumstances” is explicable only because the court

*/ In its oral findings at sentencing and its written

findings 19 months later, the trial court specified

three aggravating circumstances. It found that the

capital felonies: (1) were committed during the course

of an armed robbery; (2) were committed for pecuniary

gain; and (3) were “especially heinous, atrocious, or

cruel.” On appeal, the Florida Supreme Court held that

only one aggravating circumstance was valid. It held

first that “(t]he robbery circumstance and the pecuniary

motive" properly constitute only one aggravating cir-

cumstance, and second, that "(t)he finding that the

murders were especially heinous, atrocious, and cruel

cannot be sustained.” Id, at 43a,

restricted i.s own attention and the attention of the jury

to the specific mitigating circumstances enumerated in the

Florida statute, At the sentencing proceeding, Betty Fine,

petitioner's parole officer, testified that petitioner was

an epileptic, that he suffered from severe headaches, that

he had severe financial problems, that he and his wife,

Jeanette Armstrong ,— had marital difficulties attribut-

able to her infidelity, and that she “on occasion hit him

in the head with a bottle and * * * [once] bit him on the

side of the face," leaving a scar (Tr. 1417-1420), Fine

also testified that petitioner was “substantially dominated

by Jeanette Armstrong, by her emotional hold over him"

(Tr. 1420).

Only this last item of Fine's testimony was

encompassed by the mitigating circumstances enumerated in

the statute and listed in the jury instructions. See

Section 921.141(6)(e), Florida Statutes, and Tr. 1435.

The record shows that the jury and the trial court did not

believe themselves entitled to consider, and did not ad-

dress, any of the otlier matters mentioned by petitioner's

probation officer as mitigating factors to be weighed

against the aggravating circumstances found to exist.

Furthermore, because the trial court announced

before the sentencing proceedings began that its instructions

to the jury would track the statute and would refer only to

*/ Jeanette Armstrong was indicted together with petitioner

and Earl Enmund'for first-degree murder and robbery. Her

trial was severed, however. She was convicted on two

counts of second-degree murder and one count of robbery,

and was sentenced to three consecutive life sentences.

Enmund v. Florida, 102 S. Ct. 3368, 3370 n.1 (1982).

EOeEOEO——

om x Seu ant vty we ee “ ws b may? Me AMD, ’ oo CT Baa ie

; f

i

“mitigating circumstances as defined in the Court's charge*

(Tr, 1402; emphasis added), petitioner's trial counsel may

well have been discouraged from introducing evidence of

additional mitigating factors. These factors include:

(1) defendant's low 10; (2) his minimal amount of schooling;

(3) his poor reading and writing ability: (4) his illegiti-

macy; (5) his poverty; (6) his lack of any adult male

supervision at any time in his life; (7) his separation from

his mother when he was approximately two years old; (8) his

upbringing in the home of his grandmother, where discipline

was exceedingly lenient; (9) his regular church attendance

in Lake Placid, Florida; (10) his participation as a musician

at religious meetings and revivals; and (11) his reputation

as a competent and diligent worker.

In sum, the statutory enumeration of mitigating

circumstances, the trial court's jury instructions, the

jury's verdict form, and the judge's sentencing findings

all demonstrate the unconstitutional limitations that

restricted consideration of mitigating evidence in this

case, The jury was permitted to recommend a sentence of

life imprisonment only upon a finding that one or more of

the specific mitigating circumstances -- such as age,

duress, or domination by another -- enumerated by statute

and listed by the court outweighed the aggravating cir- i

cumstances found to exist.

Following the affirmance of his conviction and ,

sentence on direct appeal and the Governor's denial of 4

clemency, petitioner moved in the trial court for post-

conviction relief under Fla. R. Crim. P. 3.850 (App. G,

infra, Sla-ll6a), Among the points raised in the motion

wins Pi) RE OI Me PT, SCC,

. ‘el

was the question presented in this petition (id, at

63a-67a), The trial court denied relief (App. C, infra,

léa-35a), and the Supreme Court of Florida affirmed

(App. A, infra, la-l2a).

Justice McDonald, joined by Justice Ehrlich,

dissented with respect to the question presented here. The

Gissent stated (App. A, infra, at 10a):

The record in this case clearly demonstrates that

the trial judge limited the jury's consideration of

mitigating circumstances to those listed in section

921.141(6), Florida Statutes, and, presumptively,

limited his own consideration when he imposed sentence.

The judge told the jury to consider mitigating circum-

stances “as hereinafter enumerated.” The only ones

enumerated were those listed in the statute.

The dissenters concluded that “the sentence must be vacated

and a new sentencing procedure, including a new advisory

jury, must be conducted" (id. at lla). That is the relief

petitioner seeks in this Court.

¥ REASONS FOR GRANTING THE PETITION

THE STATUTE AND JURY INSTRUCTIONS UNDER

WHICH PETITIONER WAS SENTENCED TO DEATH

DEPRIVED THE JUDGE AND JURY OF THE CON-

STITUTIONALLY REQUIRED FREEDOM TO CON-

SIDER AND GIVE INDEPENDENT WEIGHT TO

ALL RELEVANT MITIGATING EVIDENCE

Petitioner's sentence of death was imposed in

violation of the constitutional principles set forth in

Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma,

oh 455 U.S. 104 (1982). Those cases held that the sentencing

authorities in capital cases must be permitted to consider

3 all relevant mitigating evidence and to weigh it indepen-

4 dently of any restrictions that may be imposed by a statu-

torily prescribed list of mitigating circumstances. As the

a plurality opinion in Lockett explained (438 U.S. at 604),

individualized sentencing decisions are essential in capital

cases, because the “qualitative difference between death and

other penalties calls for a greater degree of reliability

when the death sentence is imposed."

In this case, the jury and the trial court were

improperly limited in their consideration of mitigating

evidence. At the time of petitioner's trial in September

1975, the governing Florida statute appeared plainly to limit

the mitigating circumstances that could be considered in

capital cases to those specified in Section 921.141(6),

Florida Statutes. Subsequently, after this Court's decision

in ! ckett, and three years after petitioner was sentenced to

death, the Supreme Court of Florida construed Section 921,141

sO as not to restrict the mitigating evidence that the

sentencing authorities in capital cases could consider,

Songer v. State, 365 So.2d 696 (Fla. 1978), cert. denied,

441 U.S. 956 (1979). The court in Songer asserted that its

interpretation of state law following Lockett was in fact

fully consistent with the way in which the Florida statute

had been applied before Lockett. However that may be -- and

the decision in Songer is highly dubious both in its statutory

*

construction and its treatment of earlier Florida cases—’ --

*/ In support of its statutory construction, the court in

Songer relied on a slight difference in wording between

Subsection (5) and subsection (6) of Section 921.141.

365 So.2d at 700 & n.1l. Subsection (5) states that

"(alggravating circumstances shall be limited to the

following:" and it then lists the statutory aggravating

circumstances. Subsection (6) states that “(mJjitigating

circumstances shall be the following:" and it then lists

the statutory mitigating circumstances. The court in

Songer asserted that the omission of the words “limited

to” in subsection (6) reflected a legislative intent to

permit consideration of mitigating circumstances other

than those listed in the statute. This position is diffi-

(Continued)

the fact remains that in this case the trial court pro-

ceeded on the assumption that it was limited in the mitigat-

*/ (Continued)

cult to square with subsections (2) and (3), both of

which, before 1979, treated aggravating and mitigating

circumstances identically, using the phrase “as hereafter

enumerated” to modify mitigating circumstances as well as

aggravating circumstances. Moreover, recent research

into the legislative history of the Plorida death penalty

Statute demonstrates that the omission of the words

"limited to" in subsection (6) was the result not of a

deliberate legislative decision to create a distinction

between aggravating and mitigating circumstances, but

rather of an error in transcription during the legislature's

consideration of various bills designed to remedy the

constitutional deficiencies identified in Furman v.

Georgia, 408 U.S. 238 (1972). See Hertz & Weisberg, In

Mitigation of the Penalty of Death: Lockett v. Ohio and

the Capital Defendant's R t to Consideration of Mitigat-

ing Circumstances, 69 Calif. L, Rev. 317, 358 & n.199

OL OF See also Journal of the Florida House of Repre-

sentatives, Special Session 192, November 29, 1972, at

18, 19; November 30, 1972, at 41-42; December 1, 1972, at

Special Session 1972,

’ at

48-52; Journal of the Florida Senate

November

The Songer court's treatment of previous Florida case

law was at least as problematical as its Statutory con-

Struction. Songer asserted that all of the earlier

relevant decisions of the Supreme Court of Florida were

consistent with the view that the statutory enumeration

of mitigating circumstances was not intended to be exclu-

Sive, The cases cited in Songer, however, do not support

this conclusion. All savelees consideration of only the

mitigating factors specified in Section 921.141(6). And

in Cooper v. State, 336 So.2d 1133 (Fla. 1976), cert.

denied, 431 U.S. 525 (1977), the court characterized

subsection (6) as a “mandatory limitation" on the mitigat-

ing circumstances that could properly be considered by

the sentencing authorities in a capital case. The court

in Cooper stated that the “Legislature chose to list the

aitlestine circumstances which it judged to be reliable

for determining the appropriateness of a death sentence

"= * *, and we are not free to expand the list." Id. at

1139 & n.7.

In 1979, notwithstanding the Songer decision in 1978,

the Florida legislature amende ection 921.141 in an

effort to comply with Lockett. The words “as hereafter

enumerated" were omitted from subsections (2)(b) and

(3)(b) to enable the jury and judge in capital cases to

weigh mitigating circumstances other than those speci-

fied by statute. The relevant legislative materials

expiained:

(Continued)

10

ing circumstances it could consider, and it instructed the

jury in a way that clearly restricted the jury's attention to

the statutorily prescribed list of mitigating circumstances.

Whether or not the trial court's approach was consistent with

state law in 1975, it was inconsistent with the constitu-

tional requirements described in Lockett and Eddings.

Because the jury and the trial court were improperly limited

in their consideration of mitigating evidence, petitioner's

sentence should be vacated, and a new sentencing proceeding

should be conducted.

The trial court instructed the jury to determine

“whether sufficient mitigating circumstances exist as

hereafter enumerated which outweigh the aggravating circum-

stances found to exist" (Tr. 1434) (emphasis added).

This was a clear and unmistakable indication to the jury

that it was permitted to consider only the factors listed in

Section 921.141(6), Florida Statutes, and repeated in the

court's charge.

The trial court here did not merely guide the jury's

discretion by directing attention to the statutory mitigating

circumstances; the court affirmatively instructed the jury

that the statutory list was exclusive and that nonstatutory

*/ (Continued)

Senate Bill 523 amends s. 921.141(1), Florida

Statutes, to bring it in line with the U.S. Supreme

Court's reasoning in Lockett, thereby allowing all

evidence relevant to the nature of the crime and

the character of the defendant to be put before the

jury for the purpose of aiding the jury in its

deliberations over an appropriate advisory sentence.

To this end, Senate Bill 523 eliminates the

restriction in subsections (2)(b) and (3)(b)

relative to enumerated mitigating circumstances,

allowing both the jury and the court to consider

the presence of mitigating factors other than those uf

listed in subsection (6).

Senate Staff Analysis and Economic I ct Statement (Florida),

1l

-~ :

a ee Se ee ee eT eee tena

mitigating circumstances could not properly be considered.

Presumptively, the judge limited his own consideration in the

same manner when imposing sentence,

This Court has repeatedly emphasized the impor-

tance of proper jury instructions to ensure reliable and

individualized sentencing determinations in capital cases.

Jurek v. Texas, 428 U.S. 262, 271 (1976); Gregg v. Georgia,

428 U.S. 153, 189-192 (1976). The governing standard in

reviewing jury instructions is not whether they can conceiv-

ably be interpreted in a manner that permits the consider-

ation of heebbaeusery factors. An affirmative answer to

that question cannot validate a defendant's sentencing.

Rather, the law requires remand for resentencing if the

trial court's instructions, viewed in their entirety, could

have led a reasonable juror to believe that he could consider

only the statutory mitigating circumstances. Sandstrom v.

Montana, 442 U.S. 510, 514 (1979). By any fair reading of

the trial court's instructions, the jury's verdict form, and

the trial court's oral and written findings, the sentencing

authorities in this case, in September 1975 and April 1977,

could have reasonably concluded -- and indeed did conclude --

that they were restricted to the statutory mitigating circum-

stances in deciding petitioner's sentence.

Washington v. Watkins, 655 F.2d 1346 (Sth Cir. 1981),

cert. denied, 456 U.S. 949 (1982), is directly on point.

As in this case, the trial court's instruction on mitigating

circumstances in Washington used "language that almost

exactly paralleled that in which the trial court circum-

scribed the jury's consideration of aggravating factors" and

followed "({a]lmost immediately thereafter" (id. at 1370).

12

The Fifth Circuit held that these instructions created an

unmistakable inference: “Unquestionably, a reasonable juror

might well infer from this parallel syntax that the enumer-

ated factors -- both aggravating and mitigating -- were the

sole factors that he was permitted to consider in the dis-

charge of his oath" (ibid.).

The State in Washington argued that the omission

of the word “only” from the instruction regarding mitigating

circumstances, as compared with its inclusion in the otherwise

otherwise identical instruction regarding aggravating cir-

cumstances, would have led a reasonable juror to infer that

his consideration of mitigating evidence was not limited to

those factors listed by the trial court. A similar argument

has been advanced by the State in the present case (see

Florida's brief in the court below, at 15), apparently on

the ground that the trial court, after instructing the

jury to weigh the aggravating circumstances and mitigating

circumstances "hereafter enumerated,” then prefaced its

listing of those circumstances with the following phrases:

"“Aggravating circumstances are limited by Statute to the

following:” (Tr. 1434) and "Mitigating circumstances by

Statute are:" (Tr. 1435). The State suggested that the

omission of the words “limited to" in connection with

mitigating circumstances was sufficient to inform the jury

that the court's enumeration of mitigating circumstances was

not intended to be exclusive. The answer to this argument

is the same as the court of appeals’ answer to the State's

reliance on the omission of the word “only” in Washington.

The Fifth Circuit wrote:

Perhaps an extraordinarily attentive juror might

rationally have drawn such an inference from the

omission of this single word. * * * Nonetheless,

13

at best the State's argument suggests that there is

more than one reasonable interpretation of the crucial

language in the charge; this does not mean the charge

is not constitutionally infirm, for the Supreme Court

has held that “whether a defendant has been accorded

his constitutional rights depends upon the way in which

a reasonable juror could have interpreted the instruc-

tion."

655 F.2d at 1370 (quoting from Sandstrom v. Montana, Supra,

442 U.S. at 514; emphasis added by the court of appeals).

The conclusion here that the judge and jury were

limited in their consideration of mitigating evidence is

in no way affected either by defense counsel's proffer of

the testimony of Betty Fine as to defendant's background and

character or by the trial court's admission of that testimony.*

The admission of nonstatutory mitigating evidence cannot

avert the harm from an instruction that erroneously limits

the jury's consideration.

The court of appeals in Washington v. Watkins,

supra, 655 F.2d at 1375, fully endorsed this position,

explaining that reliance upon the admission of nonstatutory

evidence

completely miss{es] the point of the Supreme Court's

holding in Lockett. Sandra Lockett also introduced

evidence of nonstatutory mitigating factors, and

also argued their relevance to the sentencer. The

fatal flaw in Lockett was not the exclusion of

evidence relating to nonstatutory mitigating factors,

but the limitation on the sentencer's consideration

of that evidence except as it related to the statu-

tory mitigating factors.

Similarly, Eddings v. Oklahoma, supra, supports

petitioner's submission. In Eddings, defense counsel also

* The State did not object to Fine's testimony

(Tr. 1416-1417).

14

se ae ee —

introduced nonstatutory mitigating evidence at the sentencing

hearing. The trial judge refused to consider the evidence,

however, because he interpreted the sentencing statute as

precluding its consideration. This Court invalidated the

sentence despite the admission of the nonstatutory evidence.

"In this instance, it was ae if the trial judge had instructed

a jury to disregard the mitigating evidence Eddings proffered

on his behalf." 455 U.S. at 114. See also Bell v. Ohio,

438 U.S. 637, 641-643 (1978) (death sentence invalid despite

introduction of nonstatutory evidence, where sentencing

judges believed they were limited to statutory mitigating

factors).

In short, Lockett and Eddings would be meaning-

less if the admission of nonstatutory evidence could render

harmless an instruction that improperly restricts the sen-

tencer's consideration to the statutory factors. By relying

on the admission of the Fine testimony (App. A, infra, 5a),

the Supreme Court of Florida departed from the requirements

of Lockett and Eddings. The admission of testimony regarding

nonstatutory mitigating factors could be sufficient to

overcome an improper limiting instruction only if juries

were free to disregard the instructions of the trial judge.

Juries are not free to act that way, however. As the

court of appeals stated in Washington v. Watkins, supra, 655

F.2d at 1375 (citations omitted),

Only an instruction from the trial court can invest

a particular concept -- here the jury's ability to

consider nonstatutory mitigating factors -- with

the authority of the court. Indeed, were a jury to

consider nonstatutory mitigating factors despite

instructions by the court to the effect that it was

duty-bound to consider only the two statutory miti-

gating circumstances, it would be acting "lawlessly.”

15

See Woodson v.Morth Carolina, 428 U.S. 280, 303 (1976);

Roberts v. Louisiana, 428 U.S. 325, 335 (1976).

This Court should grant review because the record

establishes that the sentencing authorities in this case

lacked the constitutionally required freedom to consider and

give independent weight to all relevant mitigating evidence,

Petitioner introduced significant mitigating evidence that

did not fall within the statutory categories, and there was

additional mitigating evidence that could have been intro-

duced had the trial court not indicated in advance that

the jury's attention would be limited to the statutory

factors. A sentence of death imposed in these circum-

stances should not be permitted to stand.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

JAY TOPKIS

PETER BUSCEMI

(Counsel of Record)

MARK S. OLINSKY

PAUL, WEISS, RIFKIND, WHARTON

& GARRISON

A partnership including

roftessional corporations

17 Massachusetts Avenue, N.W.

Washington, D.c. 20036

ROBERT YOUNG

WILKINS, MOORMAN 6& YOUNG

Post Office Box 428

artow, orida 830

July 27, 1983

16

a ee.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

SAMPSON ARMSTRONG, Petitioner RECEIVED |

Vv.

JUL 27 1983

STATE OF FLORIDA, ET AL.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner, Sampson Armstrong, by his under-

signed counsel, asks leave to file the attached petition

for a writ of certiorari to the Supreme Court of Florida

without prepayment of costs and to proceed in forma pauperis

pursuant to Rule 46 of the Rules of this Court.

As the attached atfidavit of petitioner shows,

petitioner has been incarcerated since April 1975. He

is currently imprisoned at the Florida State Prison, Starke,

Florida. He has no income, no valuable property, and no

cash or bank account. He is therefore unable to pay the

costs of this proceeding or to give security for those costs.

On May 2, 1975, petitioner was adjudicated an

indigent by the Circuit Court of the Tenth Judicial Circuit

in and for Hardee County, Florida, and counsel was appointed

to defend him at trial. Subsequently, on January 6, 1976,

the trial judge found petitioner insolvent and appointed

counsel to represent him on direct appeal. During the March

1982 proceedings in the trial court on petitioner's motion

for post-conviction relief under Fla. R. Crim. P. 3.850, the

trial court again adjudged petitioner indigent and ordered

that all costs of petitioner's appeal be paid by Hardee

County, Florida.

For these reasons, the motion to proceed in forma

pauperis in this Court should be granted.

Respectfully submitted,

PETER BUSCEMI

PAUL, WEISS, RIFKIND, WHARTON

& GARRISON

A partnership includin

professional corporations

assachusetts Avenue, N.W.

17

Washington, D.C. 20036

(202) PP CLE

ROBERT YOUNG

WiLKINS, MOORMAN & YOUNG

Post Office Box

Bartow, Florida 33830

Dated: July 27, 1983

RECEIVED

83 5145 meshes

Orrie ur Ie CLERK

IN THE SUPREME COURT OF THE UNITED STATES MT

OCTOBER TERM, 1982

SAMPSON ARMSTRONG, Petitioner,

Vv.

LOUIE L. WAINWRIGHT, Secretary,

Florida Department of Corrections, et al.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

IN FORMA PAUPERIS

I, Sampson Armstrong, being first duly sworn, depose

and say that I am the petitioner in the above-entitled case;

that in support of my motion to proceed without being required

to prepay fees, costs or give security therefor, I state that

because of my poverty I am unable to pay the costs of said

proceeding or to give security therefor; that I believe I am

entitled to redress; and that the issues which I desire to

present to this Court concern the constitutionality of my

conviction and sentence in the Circuit Court of the Tenth

Judicial Circuit in and for Hardee County, Florida, and the

affirmance of that conviction and sentence in the Supreme

Court of Florida.

I further swear that the responses which I have

made to the questions and instructions below relating to my

ability to pay the cost of proceeding on petition for a writ

of certiorari in this Court are true,

t, Are you presently employed?

Answer: No, I am not present employed. I was last

employed in April 1975. At that time, my

average monthly salary and wages were approxi-

mately $250.

2. Have you received within the past twelve

months any income from a business, profession or other form

of self-employment, or in the form of rent payments, inter-

est, dividends, or other source?

Answer: No, I have not received any such income.

3. Do you own any cash or checking or savings

account?

Answer: No, I do not own any cash or any such account.

4. Do you own any real estate, stocks, bonds,

notes, automobiles, or other valuable property (excluding

ordinary household furnishings and clothing)?

Answer: No, I do not own any such property.

5. List the persons who are dependent upon you

for support and state your relationship to those persons.

Answer: No persons are dependent upon me for support.

I understand that a false statement or answer to

any questions in this affidavit will subject me to penalties

= aoa peor Pros) roMg

n rong

SUBSCRIBED AND SWORN to before me this /5SQ aay

for perjury.

of July, 1983.

83 5 ] 4 5 -la- APPENDIX A

RECEIVED

JUL 27.1983

Orrivs ve sete wc tRK

Yo. $1.372 SUPREME CouRT WS.

Supreme Cort of Florits

SAMPSON ARMSTRONG, Appeicant.

vs.

STATE SF FICRIDA, Appel-ee.

SAMPSON ARMSTRONG, ?etic.oner.

vs.

~OUTES i. SASNWRIGHT, Secrecary.

Tlor:da separctent of corsecc.sns, anc

THARLIS 3. STRICKLAND. CR.,. supersacencenc,.

Florida State ?2.s0n, Aesponcents.

(January 29, +383)

?7ER CURIAM.

Sampson Armstrong appeais <=he senial sf 1:3 mot:5n <5

vacate, set aside °F sortec= 213 sonv:scc:on and sentence <:ied

pursuant co Flor:ca Mule of criminal Procedure 2.3593. Armstrong

23 & prisoner =nder sentence 2¢ teatn. dis soOMvistions ans

sentences of death were afficmed wnen 5e previcusiy acpealed <=1en

29 thas court. Agastrong 7. state. 299 So.24 9$3 ‘Fla. 981).

Along with is sotion. sppeliant ‘ited sotions for an

evidentiary 3eariag, for 4 sontinuance, ‘or appointceent and

payment of experts. and for discovery. The trial cours jen:edc

al. of appeilant's motions. #e hold <nat an evicentiary 5ear==g

-2a-

-8 NOt Tequsred and afficom <tne denial 3f relies. Armstrong sas

also fied a petition for sapeas SOFpus iA Which se arsces <2at

A@ WAS NOt alicrced effective assistance >f ccunsei cn 7:8

Previous appeal 2f 3:5 convictions and sentences, and i: snicn +e

aryues <“nat <228 Court. in decza: Se appeal. funcamenta..-

erzec. 4@ linc <he@ SOMtANtions <2 se vicncut seri: anc seny

rei.ez.

z. Ruse 3.359 Aspea..

@ich regaré co 2:4 convictions ‘for rossery and wo counts

of first-degree surcer. appellant soncands «hat they sncu.s se

vacated secause <ne court ersed in ienying 1:8 2otisn for 4

Saange si venue: s#cause <ne court erred .: alicowing i2a [lean

Shaw <> cestity and <> >e called as a court's wicness: secause

She Surry was cot scompleteiy apprised of <=ne <reacnen= 4a lean

Shaw sec@ivec i: exchange for ser cestinony: >ecause =ne ‘ury vas

Selected irom a sample of <itizens from wnicn racial and

yencer-cased @xclcsions iad Seen sade: >secause =ne court erred in

fBaliag 7S sever <ne criais 2f appellant anc 2:8 codefendant Zar!

Zamund: and secause =ne <r:al iudge deprived appellant of 4ue

process sy -An.5iciag sefense counsel <== 1:8 attempt =5 presenc

an .cem of exculpatory evidence. Al. 2f =nese legai points

@icner were or soulc lave seen Sresented <5 <n:3 <sur= in ine

-22c244 appeal. They were all eicner waived at <:riai Sy <=te .ack

of 2B7 ection. waived 2m appeai oy =ne Lack 2f arsumen= ~ere. cr

presented <5 <21s “court. sonsiderec. and <etesmnec. Thes al. of

shese issues are, ‘or one season or anotrer, sompietaly

foreclosed ans are xot subjec= cs ssliacera. attack. AasSne 7.

gtate. 410 30.24 57 (Fla. 1982); Jooce +. state. 403 30.id 332

(Pla. 1981); Abvors 7. Stace. 196 50.24 84 (Fla. 1981); Adams 7.

State. 380 $o.2¢ 423 (Fla. 13980); Senzy 7. State. 377 So.24 532

‘Pia. 13979).

4ica regars <2 Aas sentence of seach. appeliant sresencs

SUMSIIUS AFFUBONTS Tuestioning -2S val.dicy. Je argues =<nat =e

sentenciag judge considered some improper aggravatiag

sitcumstances and <hat. with sheir exclusion. the sentence of

-2-

-3a-

4eath 18 rendered .mproper. 4@ yuestions vwhetser =<56 sencvenciss

-adge founc saat Sis age of 23 at <ne sume of she crises +88 =

fact & 2actsgating factor rencering <-e sencence sf seacs

aaproper. de aryues =sat se was tensed tue process 27 aw <nen

nis sentence 2f ¢eath was 10t accompanied sy “ricten fincsngs >:

fact a8 requcred sy statute and <nat che sussequent ‘:..a¢ >:

wtitten fandiags 1:4 not sure <ne .stegc.ar:cty. Je argues =at

the triad court. in sentencing an +5 teats. oproper./

considerec and relied spon iatsrmation otrer <5an shat 48s

developed at 5:8 srial. Se arques <nat the procedure 3tsiised at

tne sentencing >ortson of sis <tial deprivec ss sf sue process

and providec an sadequate 5asis for =e [ur and :ucce <*> 7ace

tnear sentencing setermisations. Je argues <hat i:3 sentence of

4eatn .4 inappropriate and .c3 .mposit.on .s ardicrary anc

capricious iA Light of che estabi.snec ‘acts of <ne case. %

arjues sat the court commatted reversisle error = [a.-.s¢ <>

anstruct she jury “Bat aggravating si:scumstances vere Tequ.sec <5

be proven >eyond « reascnasle <oust.

ALL of =e ahove-i:sted contentions eitner souls save seen

rarsed.on direct appeal. vere argued on sppeai and <eterminedc. °F

were considered and tetersained sy <nis court Om 25S OWN BOTOn .A

discharge of .ts tuty =o Teview <eatn sentences. Therefore. =ey

are 20t sup tect =o cons.deration sy 4s tie 3.380 sotion. Fsersson

7. state. 4.9 $0.24 $90 ia. i902): F i. se. 407 $0.26

907 ‘Pla. 1982:: 25 7. » 400 $0.22 956 .Pla. .93.:: Meexs

7 State, 182 $0.24 $73 ‘Pla. .980): guiie7an 7. State. 372 so.<6

938 ‘Fla. .979).

Appellant contends <nat <he capital felony sentencing -.av

um effect ac the tize of =he <rial and <he instructions <o =5e

jury regaréiag sentencing -aproperly ear ted mitigating

considerations to =he sisscumstances ..sted .. <ne statute

violation of pockets 7. 2hao. 438 =.5. 586 1978). THis -s8ue,

Lexe otners already sent:oned. could save seen raised on sirect

appeal and =herefore is s0t 4 proper subject for collateral

attack of eppellant's sentence. Moreover, “se fied <hat she

SCSTUTO GPPised. <2e cary -astructisns usec. anc ne acces

20..20TSti2ns 2m sentence 1... SOBPSTIOS 4ich une frincis.es =:

a@S5053- ‘“hO castrsctisn 1:4 cot reve ‘Se effect of ce...2¢ <x

-S5958 that taey sere restrictec cs 3ShS.sOTatLsn 32 statutor:

“MAt.gOtiag Sissumstances. ‘his SOMTONTLON. sere .: 4s crsper one

39 SOMSLSOF 5 this proceeciag, Uns 2@ FovVernec sy sur tecisicn

-\ Peex +. Stace. :9$ $0.24 492 ) ot g2e5. ishses. +5. -.3.

964 -3981i.. ca “2.52 che same ar7v.zert «as Ta. sec. There. «

said:

ReCurriag t> tne SRADGe F.70N in ints case. ve

MOCO AS ca@ DUtSet <nat i: cs 30 “8Y TeStricts ine

SEY 2S & consiceratison 327 SS@ STACSTOFri.y enumeratec

DAs F@ting circumstarces. s2See¢, <n@ instracticn on

BA S7ating circumstances. vner. t@ac on Soh tunction

WLS The express Liaication on SShSiceratisn 37

8¢GTBVating circumstances. SCv.seS <ne@ -ury cnet ine

-<3t 3f SCACTSTOFY Sictigating factors .s =6t

@xraustive. gee jon 7. + 265 d0.56 496. °30

Poa. 23°73; on FOLSATIAG:. .: strices a

SONSticutional sa ance SY S2seCting. suz so:

seas cing, SCrstiny <5 tacse areas 32 Bac. 7atisn

sONS.sserec vita. sy tne -@¢:S.ature in Ss@termiaisg

she fairness 34 a .:f8 or 2@45 sentence. snereov

€S3UTiSg :cat =ne teatn PONS. SY Wil. Se applcec a a

SORSLSTONC ANC rational sanner. #ere v@ => sanction

AR -ASTIISTION wnisn estab.csned nO effective

Fescance for <=ne 25/7 s2 cOMNSisering cisccmstances

“M250 BAY Bitigate agaiast teats. we would surely

sreatne lite ints Mr. Sustice R@NNGuist's acmon: sion

Slat SUCK & procecure wouls “not Fusce sentencin

S2s¢rTetion sus would) SStal-y snleasa .:.° =oSxet=

?. — 433 3. 5. ac 532, 983. 2s, QS GU'Es 8: os

- «6 973 Rennquzist, ©., SOMCLETI“gG oA part and

S258@Nting in part).

contrary <2 appeicant’s ass@rcicn, <=he

-SSCIUCTiION F.7en sere .s sons:sten: 22a ss ss 7

2532- 3; = “6ls3 smivy <nac S@N2BNCingG socy sus

3Ct 3@ 3re®c.cced ‘rom SORSASOIIAG, 88 & ALti7ating

factor. aspects 37 3 selencant’s snaracter or zeccre

anc any 22 <ne circumstances of =he offense <nat ce

selencant protfers as 1 248.5 for & sentence Less

T3an t@ata. As sOted afove. sur teats penaisy

SSAtSTe Jo@sS Aot Limit sonsideratisn 32 3c. 7atsag

Sis Sumstances <=> =ose STACUTOri.y encmeraced.

Moreover, snlisce <ne chico statute iVeiidaced in

2Sxets. che SAT. 7ating Sircumstances i= ?lor:ida‘s

Statste direct <he jury's attention to many aspects

of che defendant's character and che circomstances

SurTounciag the offense. ‘While we io sot sontend

SSA" The STASSSOry] aicigating Sst Tomstances encompass

every element cf a <eZaercan:'s smaracter or

TU PeDioity, we 40 saistaia that she factors. vnen

soupied wich cae -ury's Q03..t7 9 consider ctrer

elements .2 ait: saticn. provisce sa tefendan= i=

Plorida wich every SppOrsunity co prove c:5 or ser

entitlement to « sentence Less =nan teatn.

395 So.2d at 496-37 (fo@tnotes omitted) .

“de

Jus SOMGLSSsSNM <aBt <NO “uUFy 4S <Ct sOStS=ssec .n -.<3

censsdecatien 3f 225. 7eteng fse<ses .s suscrcessec sy <=20

cpservecticn scaet iefense +. scees Setty Tine 488 cermictec <s

teeti2y on & srsec range 22 WBEteSSs Bt TNO SONTERSing wa... The

eatness testi tied x6t only tS WTTOES TelLating <s statuter;

MRtigOtirg tissumetances. sut alse cS Btters soncernic¢g

eppellant's secxground and character. <A ‘ew of 4... wae Setters

She 68 ti.owed <2 testify t3. were .s <0 support ‘for

sppe..ant's present somtention saat <2e@ court's .cetrections

discouraged defense sounse. from attempting <9 presents ic. geting

evicence. <isdeed. :uégi:ag fsom =<ne scope 2f <‘efense ssunse.'s

Pr@sentation at =e sentencing proceediag. .= appears <nat

tefense sounsel sorrectly -.aterpreted <ne <sapical ‘eicny

sentencing Law, shich. a8 we sels on Senger 7. state. 365 se.23

$96 (Pla. 19°73) on seneariag). sere. senses. 44. =.5. 956 29°93

was 20t .atended <5 restrict consideration 32 2. c.gating factors.

The omiy semtention rarsed sy Bsppel.ant's BOtisn <1at 8

proper for sonsideratisn Sy collateral atcacx .s <ne@ arjument

that se received .nefifect.ve assistance sf counsel at sotn <e

Fuslt pmase anc <nhe sentencing poase of 2:5 <=1ai-. 4@ Wie

therefore proceed <5 evalsate “nis Claid, 181ngG =e priaciples

developed a Saight 7. State. 394 $0.24 799° Pla. 198... Se are

aware of «he i:iferent anc sore elaccrate anaiysis set forcn is

#asbisgton 7. Stessxoans. 19) 7.24 -243 Stn cs. 982). aut ve

selieve <ne@ Ra.ght :eSt seacnes <5e .egai-y anc sonst. cutiona../

SOrtect rTesui= 3 <5i8 7ase.

<= Repgnt 7. Stace. =<a24 court expanced spor =e

priaciples earlier ieveicped in “eexs 7. - 382 $e.24 87°

Tla. 1960). and ammounced a four-step cest for determining

whether a defendant nas deen denied <he effective assistance of

counsel at Sis <r24J Pisst, the challenger must tetai. = =:5

pleading =he specitic omission oF 2Ver= act =pom which she <.4:

of .neffective assistance of counsel .s sasec. Second. =0

defendant must show <nat <5e act OF 2158i0n vas & SuDSstant.a.

and serious deficiency seasureably >Selow <ne standard of

sSmpetent counse.. Third. tne tefendant cust scoW <net ine

seticaency. ‘iewed ager <he SRSSSRSTARSOS. srspasc., saffectec =ne

sucsome of <ne sroceeciass. Pin@..y. the teZaencanc: 5 saswirs 32

SASSTARTLAL. STOT Gi tia. teficiensy must #2 c48tane ine state 3

SCTSMPt 8t Tesuttal. Sucn resutta. ™ByY 2@ sChieved sy saowins

seyone & Teesecnasie icust =inat «:nere “88 °C sFe"ucé.ise .2 fact

Heeze5_ 7 stase. 294 §o.2¢ at 2301.

Sica tegard =o tne fui: paese 2f ite ta... sppeliant

-=StS severai instances of ‘fa: are cs —™peacn witnesses recaréin¢

SaCtua. .ACOMSistancies. a ‘fa:care <5 28 7eCt <> ceStusory. anc a

S248 5D onvestigate and sresent evicence 3 t2@ Q..5. tecense.

4.25 tegarc =o each .nstance. ve «ave +o se2Sisussy finding <cnac

see aSserced seficiencies were satcers of rial sactics vits:-

“Se Stancarc sf competence expected 2/ attorneys. orecver,

BPPO.-A5= AAS BECO SO Showing sf sow <he 2utsome =isnt -ave seer

altectec sy i: fferent actions on 25 par= 32 <cS:a. counsel.

4icn Tegars co =he sentencing snase sf 2:8 <rial.

Sppel.an= contends <nat sis counsel ‘a: led 3S acequate.y >resen:

evicence of Sic: 7atiag circumstances. This ‘aicure. appe.cant

assercs. .4 cemonstrated sy <ne ‘act <nat defense counse!

presented only one vicness at use sentencing snase, and 4:4 «or

sas. any mempers 3/ appeilan='s fami.’ as “itmesses. Apoeccanc

Sarcner asser=s <nat ie‘ense counsei ‘ailea <5 SU0M. = Televan:

BATTOIS POTTALAinG 25 Us sSRArACter and sacxsround.

Agasa. we sonclsde <nat appelian='s arsumencs are sere

ASSACKS 270m =ne cactical snoises of 2:5 <rial attorney. ‘here

-4 20 seficiency snown. ‘The Lawyer prooaciy 2:5 <ne Sest <nat

souls Se done uncer <ne ciscumstances and i: fact presercec

sestimony percairing *> a sroad sange of both statutory and

SORSTATSTOFyY Ait. gating ciscumstances.

The cr:al court order appealed ‘rom recizes chat ine

Tecord shows <hact appeilian= received egal cBepresentation at sotn

she Gurls and sentencing pnases of 3:3 <rial that vas sore taan

adequate and showed asove-average competency. The recori

conclusively shows shat <=nere was 20 failure t> provide

resseonasiy effective ss8.stance :2 sounse. 88 .4 2omStitstisna..,

Tecu.sed.

APPOL.SRS 4546 SSATEONSS <ABt <2245 <Ssuss ssnsisesec

-22semetsan {sem susesde <28 seesrs .2 aftiseers 7.5 sencerce 32

teats om sppea.. This afTument +c@8 “ct rB.ate i3 anyta.uss <a8

t32aL sBust 2:3 oe tascee 23 38 3F tS anytnacg <cABt <saNnsPpisesc

SuFiAg <AO TFLAL SF tEiAi- Lever prsceeciags. Therefsre .: .4 %St

an sppropriate satter co raise .2 8 %u.8 1.3950 sotion. [eg5er_-

Sate. 420 $0.24 2 Fla. 196... Sowever, oe sii. creat sais

Ar7ament a6 & petition for sapeas corpus. 4e {find the arpumen:

3S 3@ #icmoUt seri: anc teny she peticicn. see Brown

On5VE25RS- 292 $0.26 1527 Fla... FOES. senses. -22 5.55. See

t=. dapeas corpus.

AS AS sStaAtec aADoVvVe, appel.an= Aas 3.50 fi.e¢ & petition

for a wrist 32 3apeas SOrpus wich 2528 <couUST. 2 YNiSS 0

cnalienges <2:3 <csus='s creatmen: 32 1:5 prior s:sect appea. anc

argues <=nat .e vas teprived of <ne effeccive assistance of

counsel .a presenting <ne appea..

Petrcicner contends <58t “A238 Court SOBs Sancamental

erztor .n deciding 2:8 appeai anc iepr.ved um sf sue srocess 22

law. Se arsces <hat <se csurs erred A sifisming <.5 sentence 32

Zeacn after finding <nat swo sf <ne <Aree stacsussry ag¢gravacics

sussumstances found ov <ne <ria. ‘ucge were erroneous. °ur

sciding was <nat che ersoneous f.nGings iA aggravaticn 2:5 sot

szpais <ne process 22 weighing <="e aggravating s.sScmstances

BGAainSt =he Bitigating sirsumstances secause <nere were 0°

Mitigating circumstances <2 weign. Amstrons; 7. stats. 299 30.2:

at 963. In view of <=he fact <hat <=he curry recommencec <eatn. <@

neld chat the siagle valié aggravating siscumstance was &

suzficzent >as:s co suppor: afficmance of <he sentence 22 <eat:.

Peticioner argues <hat sur affismance on <Als 545-5 48S

s=proper sisce an appelcate sours cannot Cow what <ne sencencing

sudge would have decided sad 2@ cnown <hat part of <ne 248.8 for

nis decision was invalid. Once <n:is Cours Sad decided <nat <vo

i ee, ee + ae - at

32 che SA5Be Bggravecing <c.scusstarces TOSI SOS SY cae trla. -ucce

#058 -SOPP--285.e. POTS ONer AfTses. =ne orsper resu.: «es =:

Aen Temans ist resentencias. in suspert of tnis tO8.cion

pOTSsacner ces jbescens = canz. ii. fig 29° fen faz. 1389

MeSesees. $44 Tic 446 Fem faz. .deL. Gehasgesc. .25 5.52. 1384

362. and Seer 2. seer sas. 14. 7.is 6 fen tas. 1902

CMSAERS 28 LEDGE GESURGS Ong LOmenges. -22 5.22. 2972. -ugerers

Teenegases. 146 7. ig 3. Jen cer. 1982. However. ve ‘fiac ine

sated CASOS tS 20 Si stinGulsnasie and caerefore sot controiiias.

fess. 7. Stecsxiand. Wo. $:°4200 (‘Lich cis. cam. *. 19863). #e

sRerefore tind <22s 7OLnt <3 3e@ Without ser:t.

Petitioner a.s0 sontencs <hat =e received .nef‘ective

aSS.stance 25 appeliate counsel and <hat secause 2/ 714 sppel.aca

aawyer's fa.iongs. re was teprived of a ful. and meaningful

appeal of 5:4 sonvicticns and sentences. 4e arsues <at 16

snou.c 3e@ Francted a sew or selated appeal. ?eticioner presents

2i2c@O@n points and argues <2at eacA consticutes a speci 2:s

OMLSSi0N, Sunstanctia.cy ieficient oF seasuranly selow <ne

Stancara 32 sompetenc counsel, and =nat eacn rad pres udicia.

—E™pact on <ne sutcome sf =<ne appeal. - :

-- The i.ic@en specific cm.ssicns raised sy seticioner are:

@&) The *3:cure <3 appesi “se <rial court's

genial sf <ne set:cn fcr snange +f venue jue =>

Prejucssial pretrial susiic:cy:

3) The foi.cre <5 appeai <he <rsai court's

denzal of <he soticon for severance >f <ne irial from

sRe crsal of codetendanc far. inmund:

.C)} The {@,cure <> scequateliy argue <inat <ne

evidence of 7ui.= was : Zicsent or veax:

‘4) «The faicare <o raise che -ssue sf

snadequacy of <>1ai counsel at <he gui.t pnase 22 =20

(@) The failere so argue the issue of

sascrisinatory metnods of selection of she sury

venice:

.2) The fa:lure co raise <he issue of

snadequacy of cri4ai sounsei at <ne sentencing pnase

ig) The fa:cure co argue <nat <=ne cap::cal

felony sentencing statute ioproperly restricted <=n60

consiceration of 2c: Gating sciscumstances:

(3) The Jascure => csvoke <se scpplemental

authoricy of ; 7. =O, 438 J. $. 586 (1978),

durcsg she 3 3 appeal:

\4) The Jailare co challenge che <rial sourt's

‘Zootnete cons:aued)

-9a-

We aAave exatcned each cf che asserted smissicns anc cave ~

Soune smat eacn of <nem eicner <.. .8 20t 8 Bpeci4is scver= act or

SM. 5820h: 3; 28 SOS & Susstancia. anc serisus tef:s:e257

B@ASUTASiyY SOLOW <re stancars expeccac of scompetan= sounse.: cr

>) 28 A26C SROWN <3 “AVE s@@h SO SUDStTANtia. 38 <5 30 L.Kely :

aave ailectec <ne sutsome sf <ne appeal. jee %.r5t 7 sctace.

394 $0.22 997 Fla. .3801,.. Se are satisdiec <nat seticisner

receivec a 72L., ‘acs, and seaniaglt=. appea.. Ye snerelcre rile

STRAT p@tis.oner -5 20t enticed <5 selief fssm 1Az8 sOnviscisns oF

sentences 5y nabeas <sorsus.

@ica regara <s <2e appeal of <ne tenial sf ine Yue 1.359

BOti9On,. Oe 304d =naAt <he motion. fo.es. anc recorcs i. <ne -ase

sonclusively snow <Sat <ne appelian= -.8 enticled <=s 19 ceiceZ.

@e <nerefore affism <ne cr:a. sours's tenia. 32 appei-asc='s

SOtions. 4.5n regars so <Ae peci<ion for Aaseas sorsus. ve +0.3

TBAT peticsoner .5 ent:s.ed <3 70 reicef and teny <ne “Stsn.

ss 28 80 srdered.

ALOERMAN , 2.4

McOCNALS ,

csncurs

- ASKONS. 3CYS and SVERTON. <3S.. Sonecs

«+ J2SSENTS 4LSN OR SPAANICN. 42SN wnsach EARL=SCE. C.,

NOT POMAL SNTIN TOME EXPIRES TO Plus 3 =3G MOTION AND. <F

Pu. IJETIERMINES .

Con't) s=8G.ags 32 aggravating siscunscarces anc <5 aryue

soncerniag <he sonsequernces sf a 20cicing sf

eavaisaicy of aggravacis¢ <.>cumstances:

3) The faicure <5 invoxe <ne supplementa.

authorssy of Stepnens 7. cans. 43. 7.22 397 Sen cus.

.380). dursag =ne pendency of <=ne appeal:

x) TSe fariure <> appeal <Ae <s.al court's

SMaSSi0n of AN LAStTSUCTION <Hat aggravatisg

custumstances tust se ;roved seyond «a seasonacsie

2oupt:

(1) The failure to argue <hat peticioner's

Single conviction of unarmed sreakiag anc entering >f

an unoccupied Ssusiness estapi.snmerc <:< A0t segace

the Statctory sicsgatiag faccos sf Lack 32

S2gnrzicane srevisus Sssaisal %:.stor:

=) The fasiure <9 argue <Aat <se sentenc:=

proceeding was inla:sr:

(3) The faaiure <9 peti=: che United States

Supreme court for cerciorar: so seview <ne affiraarce

of she somvictions and sentences;

(0) ‘Be fJaicure so adequately arjue <nat <e

jury was sot tally informed of <ne agreement setveen

the state and <he wiscness ida Jean Shaw.

-9-

-l0a-

The recors in <nis case clear. temonsctrates <nat <ne

S334. [UEGO .a85e6 320 susy'sS sonssderatisn 32 732. 78ceS¢ su2-

SSRSTARCOS <5 3ROS@ .28tOC 8A SOCTICN 74...5. 5. Fisrssa

Stacctes. anc. presusst:vei, acs: R25 DWH SONSiseracion veer

.@ oxposec sentence. The :s69@ <5.c sme ‘ur’ 25 sonsicer t.t.-

Zatunc ciscumstances ‘as -ereizalter enumeratec.*" TBe SR.” snes

enumeratec were <nose ..stec is ihe statute.

Sacly, we fa.iec <5 note this in sur review of canis recor?

3m appeal, anc <2.8 sefect was cot called <5 sur attention antic

taa8 3.350 appea. vas ‘ficec. The ersor cere vas an snintantional

BiSanterpretation sf section ?2...4., Florida Statutes. sv ine

secge anc a... counsel ASS0ClaAtOG 4icA ine case.

Thos case represents an example of <ne extreme care ‘nat

must 306 cised .n death cases. The teatr penalcy statute

enaczed sy <ne@ Legislacure .8 an expression 3/2 =5e fu5lis 70..27

» The pr@liumisary :ury cAarze on <=ne sentencing proceediss .s. i2

part. as isliows:

‘Sis 28 now your duty anc responsisi.ic, <5 seterstiune

SY & BATOFicyY YOte wnetner sr 70t sou acvise <20

Lmposicion of <ne Jeath penalcy Sasec <pon. one.

whetner suzficient aggravating <sisscumstances as

nerealter anumeratec exist <5 :ustify che teatn

TRO AGGTAVECISG [2ST STANCES (9455 <5 OxiSt

Eapnas.s suppl.ed.

TRe cxial sudge Later <3id <he sury:

wow, yOu “il. save swo forms 32 verdict as <3

each count and as <> eacn cefencant. There are =vo

counts of ‘izst segree surser. ‘cur advisory sen-

tance a8 <9 count one, anc <=5i3- vil. de <ne sne as i:

reiates <o Zar. Inmunc: Ye, <ne Jury, save seard rvi-

cence under =he sentenciag procedure in <ne above

cause as =O whether aggravating circumstances which

were so defined in <he court's charye existed in «ne

capital offense ers A761 706 anc yheter Fuiz= $285:

ssa =O SUTVOLSN FSSA AGGTBVEtinG sirtcuestances,

we +o iinc anc advise <hat <ne aggravating cir

cumstances <o sutweign <ne Ait. gating circumstances.

A matoricy of at Least seven 27 cs. therefore. acv.se

she Court shat <ne death penaisy scouls Se -sposed

a oe ee ee

Eepnasis supplied.)

“ld-

-lla-

of thas state as =e SPPTSPTiate Sunssmcen=t nA rercai: ss2cun-

stances. We save sels .: ton Te TeTeohe. Sh numerses cetasicrs.

The decisisn is SSPCS@ 2@Rtn SF lize Ls russes =Y 25@ Tancatsr:

SanGing of at Least one S¢FTavacins factor as ief:inec sy une

Statccte. Against tre 8GG>avacins factsrs ‘sunc seyorns & reascr-

AS.@ <subt, S+FAToNG carcuwtances as ie¢:-ec Sy statccte anc

StaOr OVisence vnisn ag3i4ts ize ;SS 29 s@termine ine cnaracte:

2 the offender are W@iG50C $0 <SAt tne ury semcers .- recon-

encing and =the :udce ia BpPOSinG save Sac their discretion

carezsily surded. 7uSGes anc -uries sust sot 2@ srec.cced fron

7ONSicering ronstatutor-: Sess Gating siscumstances. icccec- --.

shes. 438 7.3. $86 +972). The legislature itef:> certain

7actsrs <5 3e SOMNSicerec 2 3itisaticn. That -@¢-8.ative Lost 357

SSS FAtang cirsumstances .s se::cer OXC.SS27@ ASF BLL lnclesire.

=3 Songer +. S8- 265 $0.24 596 Fla. 1972), g8E5- i@hsec. +4.

7-3. 986 2379), we empnasicec <nat .:t sas &.¥&yYS 2@0n srster

ancer <he Florida statute <5 SORSiser Aonstatutor: oS558t.5¢

sasSumstances. Se mst Se crue to that MOSon¢g anc se sure is

.. 2a8@8 that =he SEY “8S Sot preclecec ‘rom 40 TONSiserins

em.

The Jniced Staces supreme court Tecent.y reatficmec :ne

portance of a -udge acd Sey § SONS.sseracisn 22 all factors

Fegarcicg a selencans anc 2:5 SOPSLSSLSR SF tne crime se‘cire

—2pOSing <he teat= sentance.

382). Plsorida’s seats penalcy can se SONSTITUtlomal.y acpicec.

SUS 59 30 SO we SUSt 50 Alert <5 =hose cases vnere sae 2355

scmplemen= 2f tue process <:s273 7as seen —spingec ipor. This is

SUCS & 2a8@ a8 2: relates =D ine S@Ntenciag. There was 20 .nes-

fective assistance 2f sounsei ia Aas case, Sut « Lack of jue

PESCOSS .5 che Sentencing pnase. There is =¢ sasis 72 agaca

FOVieW <h@ SOMNVistion. Sut <ne sentence cust se vacated anc 4 sew

SONTONCiAG procedure, iacleding 4 sew aGvisery [iry, aust >e

conducted.

TERLICN. 5., Concurs

**

*®se°

-1Za-

AM Appeal fzcm <ne circust lourt in ane ‘for farsee county

Ailiiag A. Norris. Jr., -ueége - case io. 7$-L1),

anc An Origina. Proceeding - Zaseas ~of7us

Rsoer= Young. Winter Zaver. Flir:a anc Peter 3uscem. 2/7 Pau...

Razksad. “MAFTON anc Sarrison. “asningesn. 2.2.

for Appe.iant. Peticicner

3 SmMicn. Attorney jenerai and Micnael A. Palecx:. Assistant

Atcorney Jeneral, Tampa, Tlor:da,

for Appei_ee/ Respondents

“22-

C ee

APPENDIX B

” IN THE SUPREME COURT OF FLORIDA

THURSDAY, APRIL 28, 1983

SAMPSON ARMSTRONG, ee

Appellant, ee

vs. ** CASE NO. 61,871

STATE OF FLORIDA, oe

Circuit Court Case No.

Appellee. ee 75-110

(Hardee)

2

SAMPSON ARMSTRONG, belied

Petitioner, ae

vs. belied

LOUIE L. WAINWRIGHT, Secretary, ee

Florida Department of Corrections, and

CHARLES G. STRICKLAND, JR., Superintendent, ee

Florida State Prison,

Respondents.

On consideration of the Motion for Rehearing filed by

attorneys for appellant-petitioner,

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

same is hereby denied.

ALDERMAN, C.J., ADKINS, BOYD and OVERTON, JJ., Concur

MCDONALD and EHRLICH, JJ., Dissent

A True Copy Cc

cc: Hon. Coleman W. Best, Clerk i

TEST: Hon. William A. Norris, Jr., Judge és

Peter Buscemi, Esquire ata

| of Paul, Weiss, Rifkind, Wharton Tes

PY Sid J. White & Garrison os

| Clerk Supreme Court Robert Young, Eaquire

e Foyer’ ~~ ZO RGOY 4 6, ee let PRE sae — -

APPENDIX C

IN ‘SHE CPR CUES COR a GI. TRENT ShUCITAL © ER UI

IN AND FOR HARDEE CCUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

CRIMINAS. ACTIC®.

-vs- CASE NC. 75-110

SAMPSON ARMSTRONG,

Defendant.

AMENDED ORDER DENYING MOTICN TO VACKTE,

SET ASIDE, OR CORRECT CONVICTION AND SENTENCE

On September 30, 1975, Sampson Armstrong was convicted of the first

degree murder of Thomas and Eunice Kersey. The death penalty was imposed

following the recommeniation of the trial jury.

The judgment and sentence was subsequently affirmed by the Florida

Supreme Court on March 26, 1961, and rehearing was denied on June 15, 1981.

Armstrong v. deawk. 339 So.2d 953 (Fla. 198)).

Governor Graham signed the death warrant on March 4, 1982, setting

the date of exccutio’ during the seven (7) days beginning Thursday,

March 24, 1982.

At approximately 4:00 P.M. on Monday, March 22, 1982, counsel for

Armstrong delivened to tie Court a motion for post conviction relicf «wi for

a stay of execution, together with other motions. Hearings on these motions

were commenced in Wauchula at 10:30 A.M. on Tuesday, March 23, 1982. The

defendant, Armstrong, was represented by Mr. Robert Young of Winter Haven and

aa Peter Buscemi of the Washington D.C. law firm of Paul, Weiss, Rifkind,

Wharton and Garrison. The State was represented by Michael Palecki and

Don Wilcox.

Overnight 1 read the entire transcript of all pre-trial, trial,

and post-trial procecdings, these consisting of fourteen (14) volumes and

three court files. At approximately 10:30 A.M. on Wednesday, March 24, 1982,

I reconvened court and orally announced my ruling to deny the motion for

post conviction relief and to deny the motion for stay of execution. A brief

2 ee tex 4;

ORE eee oe -. + paca

-15a-

order was signed it corde: to Mp tite Gurtie: ge veck Tice cad.a sap: Jeter.

that order.

Conspdeo rie oak Psysete PAL «ns ON Tes mrYinn £°Y 5 | 6 3) ere he

rclief, the court rule: @s follows:

}) JoA- Aerigve. This issue stow) i have, oF * uJa reve been raise

on direct appeal. Thompson v- CEI 6 PS i lt Pie SR an (Fla. case

number €],164, Opinion filed february 11, 1982): Ford v. State, S0.2:

(Pla. case number 61,440, opinion filea Decemrer 4, 1°61);

Goode v. State, 403 So.24 931 (rla. 1961). Further, defendart failed to

object to the jury instructions at trial (transcript attached). Clark v. State.

%3 So.24 33) (Fla. 1°75).

2) leBe Genied. ‘This Issue Fepas certs an dimermissablye atteck © tie

decision of the Ploriaa Sup rem Court ot Arm tong N- State, TY so. 22 952

(Tia. 1961).

3) IeP deniss fir Cle Peart set forth itn paragraph 2 abcve

4) I-ce denied. Tuis issue was raised on direct éppeal in Armstrong

v. State, supra. The Florids Supreme Court did not, misconstrve the trial

court's findings and the tria) court did, in donk: find that the age of

Sampson Armstrong was not a mitigating factor.

5) I-E- denied. This issue is not an appropriate ground for post

conviction relief. Brown v. Wainwright, 392 So.20 1327 (Fla. 1961); Foster_v-

State, 490 So.24, 1, 4 (Fla. 1982).

6) I-F- denied. ‘This Specific issuc was raised on direct appeal

and ruled on adversely to defendant. 399 So.2d 958, 960 (Fla. 1981). The

Court again reaffirms its prior written statement to the Florida Supreme Court

that in imposing the @eath penalty, this court did not consider any matters

outside the record in this cause-

7) I-G- denied This ground is without merit when the transcript of

-the entire penalty phase of the trial is reviewed. (Transcript attached) .-

-16a-

B) ele denied. The court's reasontie recariing the alleuatior of

ineffective assistance of counsel] at the scntencing proceeliing is set out in

detail in another section of this order.

Y) I-l- denied. A review of the entire tra.script leacs to the

conclusion that the evidence abundantly supperts the defer.dant's conviction.

This conclusion was also reached by the Florida Supreme Court on dircet appeal.

As to the tiial of Jeanette Armstrong, the undersigned alsc presided

over that trial. The evidence at that trial was sufficicnt, beyond a reasonable

doubt, to support her conviction of first deqree murder. There is no logical

explanation for her conviction of second deyree murder.

10) 1-3- denied. This issue could have been raised on direct @ppeal.

It was not raised during trial.

1]) II-A- denied See reasons set forth in varanraph 2 above.

12) 11-Be denied. This Issue war presented to the Florida Supreme

Court on direct appeal with a ruling adverse to defendant. Armstrong, supra.

13) 11-C- denied. This issuc was presented to the Florida Supreme

Court on direct appeal with a ruling adverse to defendant. Armstrong, supra.

14) II-D- denied. See reasons set forth in paragraph 2 above.

15) II-E- denied. This issue was not, raised at trial and the

naked allecations in the motion are insufficient.

16) II-F- denied. The nin *e reasoning will be set forth in a

later section.

17) 1I-G- denied. See reasons set forth in paragraph 2 above

18) II-H- denied. See reasons set forth in paragraph 2 above.

- -l7a-

~e2e «sé o¢ wm, . 4 ’ ‘z . ~"-@4- . es4 4a ‘ .

post convicts” elie’. Derses, a3 =Ctics or evider.tiar’ nhe+riné tarerec:

matter ir. proper context, that is the year, 1975. In May 1975. three peop.e

were indicted by the Grand Jury of Hardee County for first derree murder.

Three separate attorneys apreared in connection with each of the three

defendants. Mr. Frank Overhauser, who had a reputation of skill an1

ageressiveness as 2 trixi att mey, Mr. “ichsel Tromtle,. an exneriernces

trial attorney. rerresertine Fert Enrun?. and Jon Anderson, who hac beer

retained by Samma™ Armotronets cether te: spesent bh interectc in this

trial. Althoueh new t. the prastice, or. Bi dergon nud ssreadyv vaine!

reputation among his eojleacues, and atom? the mombers of Ole Betich, u.

having a reputation for 1*ra] seholarshir. arrressiveness, interrity 4:4

prefessionalism. His current stature az % member c* one cf the leadinr

trial firms in Felk County indicates that this.early reputation was well

deserved. Neither Mr. Trombley nor Mr. Anderson resided in Hardee County.

This matter was tried in 1975. It was the first capital case set for

trial in this County since Furman v. Georgia.

The State Attorney's office, through Mr. Wilcox, was represented by

a young attorney who hac not tried a capital case. Neither had the trial

Judge.

A review of what Mr. Anderson did in connection with the discharge of

his professional responsibilities reveal the following: He made his initial

appearance in this Court on the 30th of June, 1975; he thereafter filed a

Motion for Discovery on the 30th of June, 1975: he filed a Motion for Change

of Venue on the 11th of July, 1975; a heuring on. that Motion was held on the

15th of July, 1975; he filed a Notice of Alibi on the 2ist of July; he

thereafter took depositions or noticed depositions for the principle State's

witness in particular, Willie Lee, J. P- Neal, an Téa Joun shew; he file

a stdendum Ley hie Motion for Change of Vonue on the 25th of July attchine

va

————

directed to certain photorrarhs wid other iters of taneible and shvsical

evidence; on the 20th of July he filed a Motion to Sever Ais clier.t from the

triad of Jeanette Aram: aed Parl Fawsands oon the Sth of Aueuet, 19

filed a Motion to Exclude the Testinony of J. F. Nees o the aroancs that

J. B. Neal had beer. unavailable tc him Scr the surp se ~ Senceiticr: sf the

Bth of Aucust he filed a Motion to Sunress the adtissic:, of aliered

adtissions of Sampson Armstrong: on the Sth ¢° August he filed another ¥ tact

to Compel Discovery as it related to the defense of alibi; on the 3th of

August he filec a request for a list of the potential jurors; he tock

depositions of J. B. Neal on the 11th of Aurust, 1975, which consisted of

70 pages cf testimony: he took the deposition of Gordon Goodson on the 29th

of August; on the 15th of September, after the trial of “eanette Armstrone, he

made a further addendum to the Motion for Chanee of Venue; he attended the

entire trial of Jeanette Armstronr, on the 1£th of September he filed ancther

renewed Motion for Severance’ he submitted to the Court a request for svecial

Jury instructions, twr involving circumstantial evidence, one involving aliti,

one invelvine reasonable dcudt. one involvine presumption of innocence, one

involving accomplices and ‘Sevonopiraterc, one involvine immunity or reward,

and ancther inv Jving credibility of witnesses: he sutmitted to the Ccurt

questions to be asked of the Court's witness, Ida Jean Shaw.

Following the rendition of the verdict, he filed a Motion for new tria!

on the 6th of October, 1975: a Notice cf Appeal on the 9th of December, 1975;

Directions to the Clerk, and Motion for Order of Insolvency on December 29th,

and Assignments of Error on January 17, 1976.

I cal] attention to the various assimmments of error (attached hereto)

that this allegedly incompetent trial counsel filed and their striking

similarity to many of the allegations in the motion for post-conviction

relief now before the Court.

1 have reviewed very carefully the entire trial of this Defendant, and

1 find that during the course of the trial Mr. Anderson renewed 411 of the

Motions upon which he had received a ruling adverse to his client. He vigorously

argued the Motion for Change of Venue; he was successful in supressing the

testimony of Jeanette Armstrong as it might apply to his client; he was

successful in suppressing alleged admissions or statements of Sampson Arastrone; —

that in the cross examination of the witness, lda Jean Shaw, beginning on vage

-19a-

st2te~erts . _- . _* . ‘ ** ‘ er, . . - = mene © ant

23

with this t: . . . +> ves ' .* ef * - . J ° : “ o~e -*

. 2 sa 3

it

oi a

iP Sa 8 “ee P .°

that witze F

* “- * . * tT

~-— a+? “ — e oo .

+ 9% ‘

ditroduce, throug t t : herd Murad agtcid? r

3 > + ; - a

warissions that we te ty Samteun Arazstrone, & 1 unorn obt%ec%3 or ca

+) e . - we 4 ; , > «4 _

Anderson, the State Attorne te OF F4ce withdrew their 7 ffer ..° that testiror

In his cpening statement tc the Jury, he repeatedly called the Jurv's ettention

to the inconsistencies and inwccuraecies in the testimon, of the witnesses, Ida

Jean Shaw and J. B. Neal, as he did in his concise closinr arrument to the Jury.

I further find that “4° the time of the venalts nertior. of the trie: he 4i4

present a wet 4 a) lies and the s i reflects that tre

Court specifically ¢ L 4 Quectd {. the Deltendu Sampson Arustrenz, %

to whether ne intended «1 wished to take the stanc in tne penalty pertaon af

his tria). to which tte Nefernda.t. thrseth soancel, ancwered in the nerative.

At pare Vie7 the trial] transcrip? tie full owine took place after <ne

“t this or the rec_ra vlesese. I

C4

A

.

.

iy

7)

ww

o

'

@o

co

v

:

.

Oo

oO

=

> |

«ct

|

’

»

ce

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think the recor? shouli reflect my appreciation to counsel] and to the court

personell, our Bailiff. «ur clerk, and cur Court Rerorter. for the very

professions] way this Jury ws svlected, and the manner in which each of you

discharged your responsibilities toward your clients and toward the Court.

r You have my appreciation for the very professional manner in which you discharged

your responsibilities."

Thereafter at page 1817 of the trial transcript, after the Court had been

advised that the Jury had reachec a verdict in the trial phase of the case and

before we knew what it was, I convened the court and the following took place:

"The Court; Bring the Jury back. Just a minute. First of all, Counsel, I have

been advised that the Jury has reached a verdict. Of course we at this point

in time do not know what this verdict is, but 1 do want to say as a part of

this record, both to the State and to each of you, that T appreciate the

manner in which you have approached this trial of this case and the professional

manner in which each of you and all three of you have discharged your respon-

sibilities to your clients and to the State."

opinicn, the vei &r tit } f oraevl

Issuer presentes Los Bri: ’ tvrda ee oe ‘ } “1 ‘4

ashion afte uiw J

No more awesom res: OleI 634 te> can ever Tie 3 rs ; ;

impose 4 death sentence on anotner person. 1 become concerned as I perceive &

feeling on behalf af certain Federal Judges und Counse] wh represent dcat!

nenalty defendants seeking roeteconviction relief that for some reason state

Trial Judges are uw ainaful of the awesome burde:. we have under the jas t

note that this burden is met ancumpernt upor tne Federal) ‘:22c1ary,

uron State Trial vdue lf t was | yahit home to PF 1 ¥ ae

this entire trarnscrij;t Ana v * Eack in my Mond tr 337%, and 3 feel + nfigent

it was in the mings of tne Justices of the Florida Supreme Court us tney

reviewed every Vad’ of this transcrirt, it wax that the wourt, the State

atterney's Office, and Defense Counse], together, made every cffort to ersure

that the Constitutional rights of the defendants, Earl Enmur.d and Sampson

Armstrong were protected. 1 felt that wav i! 1975, and fee) that way toda’.

I vividly recal] driving home to Polk County after this case was

completed. It was @ dark, rainy, foggy night. Just 4 little north of Bowling

Green 1 pulled off on the riaht of the road and sat for over forty-five minutes

unable to continue because I had just finished looking another human being

directly in the eye and saying "..-- you are to be put to death by clectrocution.

And may God have mercy on your soul.”

Sampson Armstrong was afforded a fair and impartial trial by 4 jury

of his peers. He was represented by competent and effective counsel. He

is guilty as charged, beyond a reasonable doubt. The imposition of the death

penalty is appropriate He is entitled to no relief.

Accordingly, a)1 motions not heretofore ruled on are DENIED.

3D CRDERFD at Wauctula, Hardee County, Florida, tris

24th day of March, 10K.

-23a-

(Thereupon, with the Defendant

present, the following proceedings

were had:)

TKE COURT: Centletnen, are there otrer

matters that we need to take up you wish to be heard

before the Court announces its rulings on the pending

matters?

MR, BUSCEMI: Your Honor, I don't think

there are any additional matters. The only thing I want

to add to what I said yesterday, I neglected to point out

in connection with the first argument, the Lockett point,

the Statute has been amended since the Lockett decision.

I think as an edditional factor that ought to be mentioned

in support of our arguments, that the Statute at tik time

of trial did nct coincide with the Constitutional require-

ments outlined by the Court in Lockett.

THE COURT: Thank you.

From the State?

MR. WILCOX: No further argument.

I would like, if the record hasn't already

reflected, it would reflected that Arustrong has been

present at all times during a11 proceedings.

THE COURT: Well, I make no apology to

anyone by virtue of the lateness in reconvening this

hearing. I took the trial transcript home with me lest

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nigtt and was up until 4:00 o'clock this morning resting

it. 1 didn't complete my review of that transcript urtil

I came down here this morning. TI have now read eve-y word

of every recorded proceeding in connecticn with this care, |

and in addition have reviewed every document in the court

file. So I am tired. When I am tired I sometimes have

a tendency to ramble. But I am going to orally announce

my rulings which will then be subsequently today reduced

to writing before I leave Wauchula. Should there be any

variance between what I say now and the written word, the writte

word shall prevail.

Now, the undisposed matters are as follows:

Defendant's Point 1-A will be denied; 1-R and 1-F will be

denied.

Now, I want to take 1-H and 2-F relating

to ineffective assistance of counsel.

It is my view that this case, together with

almost every case that has resulted in a conviction end

@ sentence of death in the State of Florida, affirmance

by the Supreme Court and denial of executive clemency,

the issuance of the death warrant, and sfter that point,

then the flood of motions for post-conviction relief

after the death warrant has been issued and the date of

execution set, is purely an efferent to an ordered system

of justice in this country. It makes a mockery, in my

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1 view, of what pcople, tlhe public and everyone elsc st:ould

2|| expect from a legal system.

3 Ferhaps the only difference I see in this

all case is the fact that the Suprenc Court's affiraaiuce .f

s|| this man's conviction was not finalized until June of

6|| 1981. Nonetheless, from June of 1981 until yesterdey's

7|| date, every issue that could have been raised was ripe

8] to be raised but it was not done so. So it puts the

9|| court in the position of receiving the motions that were

10|| set for hearing in late afternoon Monday, holding @ bearing

il on Tuesday, staying up most of the night on Tuesday to

12|| review the record, coming into court to have to announce

13] orally the Court's decision, having before the Court

14]| hendwritten responses from the State, they nct eves isving

15 had an opp ‘rtunity to reduce then to typewritten form,

16 faced personally with the Defendant in court who could

17] be legally executed tomorrow and the Court being put in

18 || the position of having to rule on some substantial orcterg

19 I want to talk about the ineffective

20 assistance of counsel question.

a Certainly I am not a stranger to these

= types of proceedings. In order, I hope, to build some

= sort of record for further, what I'm sure will be

ase jurisdiction involvement in this case, let me first aicreas

" the question of competency of counsel at this procecding.

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The Court specifically finds thet the

Defendant, Sampson Arnstrong, was represented by coupecent

and cffective counsel in this post-conviction proceccin: .

Now, as to the triel of Sanpson Arustron,,

I believe it {fs important to put this metter in proper

context, and that is in the yeer of 1975.

In 1975, I believe it was in May, three

people were indicted by the Grand Jury of Hardee County,

charged with the offense of first degree murder. There was

a conflict involving the possible appointment of the

Public Defender's Office and subsequently three separate

private attorneys appeared in connection with the three

Defendants: Mr. Frank Oberhousen, who does not resice tn

Hardee County, who the Court notes had at that tinac «

reputation of a skilled trial attorney; Mr. Michael Trombley

representing Earl Enmund, an expericnced trial attorney;

and Jon Anderson who had been retained by Sampson Armstrong '

mother to represent his interests in this trial. Although

new to practice, Mr. Anderson had already gained a reputa-

tion among his colleagues and among the members of the

ench as having @ reputation for legal scholarship,

ggressiveness and integrity and professionalism. His

urrent steture as a member of one of the leading trial

irms in Polk County indicates that reputation was veil

eserved.

j

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Neither Mr. Tronbley nor Mr. Anéeresn

resided in Hardee County. |

Now, this matter was tried in 1°75. i¢ ee

the first capitsl cease set for triel in this county in,

I suppose, fifteen or twenty years.

The State Attorney's Office through Mr. |

Wilcox was represented in this matter by, again, a young

attorney in the practice who had not tried a capital

case before. Neither had the trial Judge.

If you go back and review just exactly

what Mr. Anderson did in connection with the discharse of

his professional responsibility you will find the follow-

ing:

He made his initial appearance in this

court on the 30th of June, 1975.

He thereafter filed a motion for discovery

on the 30th of June, 1975. He filed a motion for change

of venue on the llth of July, 1975. And a hearing on

that motion was held on the 15th of July.

He filed a notice of alibi on the 21st of

July.

He thereafter took depositions or noticed

depositions for the principal State's witnesses, in

particular, Willie Lee, J. B. Neal and Ida Jean Shaw.

He filed en addendum to his motion for

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Z 1|| change of venue on the 25th of July attaching theret ety

results of a public opinion Survey that he héd conrier! -ied.

On the 25th of July he filed a motion to Sup rress the

confession of Jeanette Armstrong. On the 2£th of July t¢

filed a motion in limint directed to certain photographs

and other items of tangible physical evidence.

On the 29th of July he filed a motion to

sever his client from the trial of Jeanette Armstrong

and also Earl Ennmund.

On the 8th of August, 1975, he filed e

motion to exclude the testimony of J. B. Neal on the

grounds that J. B. Neal had been unevailable to hin for

the purpose 6f deposition. On the 8th of August he filed

@ motion to suppress the admission or alleged admission

of Sampson Armstrong. On the 8th of August he filed

another motion to compel discovery as it related to his

defense of alibi. On the 8th of August he filed a request

for a list of the potential jurors.

He took the deposition of J. B. Neal on the

llth of August, 1975, which consisted of seventy pages of

testimony. He took the deposition of Gordon Goodson on

the 29th of August. On the 15th of September he made a

further addendum to the motion for change of venue after

the trial of Jeanette Armstrong.

And by way of comment, this Court's

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1|| recollection, which I confirmed, was that at the tri-+! of

2|| Jeanette Armstrong the Court had grastel the motic fF.

3\| feverance., Mr. Anderson was in attencence rt thet ¢:‘°]

4|| each day of the trial end througt the rendition of thc

s|| verdict of the jury.

6 On the 15th of September he filed another

7 || renewed motion for severance. He submitted to the Court

gi| a request in accordance with the Court's request for

9|| special jury instructions, two involving circunmstantie!

10 || evidence, one involving alibi, one involving reasonable

11 || doubt, one involving presumption of innocence, one

12|| involving accomplices and co-conspirators, one involvine

13 || demunity or rewerd, enother involving credibility of

14/| witnesses. In eccoréance vith the request from the Court

15 |} he also submitted to the Court questions to be asked of

16 || the Court's witness, Ida Jean Shaw. He participated

17 || actively during the course of the trial, which I will

18 || allude to further in just a moment,

19 Following the rendition of the verdict he

20 || filed a motion for new trial on the 6th of October of 1975,

21 || a notice of appeal on the 9th of December, 1975, direc-

22 || efons to the Clerk, motion for order of insolvency on

231i] che 29th of December, and assignments of error on January

244117, 1976.

25 And I call everyone's attention to the

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1]/ various assignments of error thet this ellegecly incorpet call

2|| trial counsel filed anc the striking ci-ilarity tc : ¢ 4

3]| eseignnents of error and to the motion for post-convi ,

4|\ relicf that is now before the Court as it relates to a

Sil both the guilt and the penalty phase of this triel.

6 I have reviewed very carefully the trial of

71| this Defendant and I find that during the course of the

8|| erfial Mr. Anderson renewed all of the motions that he hed

91 heretofore made that the Court had ruled adversely to tis

10!) client, thet he was successful in the Court suppressing

11) gileged admission or statement of Sampson Armstrong, that

12] an the cross examination of the witness Ida Jean Shrew

a3 beginning on page 1389 of the trial transcript and larting

14] +o and including pcge 1431, that he wee vigorously end

" aggressively attempting to point out the inconsistencies

161 of her statements and the prior inconsistent statements

17 | ¢o9 the various people connected with this trial and

18 | bringing to the jury's attention that she hed been granted

os immunity, that he was vigorous in his cross examination

¥ of the witness Willie Lee, that as to the witness J. B.

” Neal his cross examination, found on page 1529 throuch

7 1538 of the trial transcript, shows a vigorous cross

sas examination and attempt to impeach the credibility of

7 that witness.

- Thereafter there was an attempt on the part

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of the State of Florica to again introdg:ce throurt ete

testimony of Sheriff Murdock certain stetercnt or at-!%-sio

that were made by Sanupson Armstrong, and upon the abic-

tion of Mr. Anderson the State Attorney's % fice vitherew

thet proffer of that testimony, that in his opening

statement to the jury, in his portion of the defense, he

repeatedly called the jury's attention to the inconsisten-

cies and inaccuracies of the witnesses Ida Jean Shaw and

J. B. Neal as he did in his lengthy, or rather lengthy

closing argument to the jury.

I further find that at the time of the

penalty portion of the trial he did present the witness

on behalf of his elfent, ant? the record reflects that the

Court specifically directed? a question to the Nefer?rrar,

Sampson Armstrong, as to whether he intended or wished

to take the stand at the penalty rortion of his trial

to which the Defendant through counsel answered in the

negative.

So, as to the question of incompetent

counsel or ineffective assistance of counsel at both the

penalty and the trial phase, after having reviewed the

entire transcript of this matter, as did the Florida

Supreme Court and each Justice that heard this case, I

find that there is absolutely no necessity to hold an

evidentiary hearing and that the allegations of incffectiv

as

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assistance of counsel ere not surportc’t by the rec

/ and will accordingly be dented.

Theat leaves us with the questicn of . ¢:

r

i]

"

a stay of execution should be granted.

No more awesome responsibility can ever

come to any person than to impose the death penalty er

death sentence on another person.

I becone concerned as sonetimes I perccive

a feeling on behalf of certain Federal judges and counsel

/who are representing the defendant seeking post-conviction

relief, there is a feeling on their behalf that for sone

reason the State Court judges are unnmindful of the a'csome

burden that we have urder the law. T know thae tures

ie not incumbent upon the Federal juticetary bute ft is

upon the State trial court judges.

If one thing wes brought hore to me as I

reviewed this transcript and went back in my mine to 1°75,

and I feel confident it was in the minds of the Justices

of the Florida Supreme Court as they reviewed every page

of this transcript, as did I, that the Court, the State

Attorney's Office and the Defense counsel together nade

every reasonable effort, every conceivable effort to

insure that the Constitutional rights of the Defendants,

Earl Enmund and Sampson Armstrong, were provected. JT fult

that way in 1975; I feel that way today.

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A7ain, es it relates t- the asefetrr-r of

esunsel, et pape 1127 of the trirl transcript the feito.

ing took place after the jury wes selected:

"The Court: I want to mrt thie or the

record, please. I think the record should reflect my

eppreciation to counsel anc to the court perfonnel, our

Bailiff, our Clerk and our Court Reporter for the verv

professionai way the jury wes selected and the manner in

which each of you discharged your responsibilities toverd

your clients and toward the Court. You have my appreeietion

fer the very professional manner in which you discharged

your responsibilities."

Thererfter et pege 1217 of the trial)

trenscript, after the Court hac heer adviced trate rhe fury

had reached a verdict in the trial phase of the case tnd

before we knew what it was, I convened the court anc the

following took place:

"The Court: Bring the jury back. Just a

minute. First of all, counsel, I have been advised the

jury has reached a verdict. Of course, we at this point

in time do not know what this verdict is. But I do wert

to say as a part of this record both to the State and to

each of you that I appreciate the manner in which yo have

approached the trial of this case and the professional

manner in which each of you and all three of you have

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discharged your resnonsibilities to your clierts ant to

(the State."

Thereafter the nenalty nhace of this trial

begen and it became ty responsipility thereefter UX

determine if the death penalty should be imposed.

I felt then in 1975, I felt in 1977 when

I entered my written findings of fact in accordance with

the mandate of the Supreme Court, enc I feel today that

this Defendant was afforded a fair and impartial trial

by a jury of his peers, thet he was afforded adequate

competent legal counsel, that he was guilty of the coarge,

a charge of murder in the first degree, beyond and to the

exclusion of every reasonable doubt. I concurred then

in the recomnencation of the jury. 3 concurred in trat

recommendation in 1977 and I concur in it today and I

concur in it as interpreted by the Florida Supreme Court

in the opinions that they filed in this case.

As I have said, there is no greater re~

sponsibility that any man will ever have than to impose

the death penalty on another person. And 1 vividly recall

driving home to Polk County after this case was completed,

it was a dark, rainy, fogsy night, and just a little bit

north of Bowling Green I pulled off to the side of the

road and sat there for @ period of over forty-five ninutes

because I had just finished looking another husw.n being in

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ttc eve end seying thrt you are going to be nut to drach

hy electrocution, my Cad have merey on vour so),

YT find ne fustification for lesulre 2 cesy

ef exceution. JI want the record to be clear Jory rtd >

on this. I am specifically ruling that I do have the

power and the authority to erant a stay of execution. I1

find that a stay of execution is not justified under the

law and facts of this case.

Gentlemen, I intend to reduce everything

thet I have said to writing today and file that with the

Court.

MR. YOUNG: Your Honor, we have some pancrs

to file with the Clerk, if we mav, prior to that.

THE COURT: Ali Figne,

MR, YOUNG: Prior to that, and it may be

premature, but I think with the Court's permission we

would do it now but not later because of the exigency of

the situation,

MR, BUSCEMI: We have prepared a nunber of

orders for the Court to sign and we think they do eubody

the Court's ruling thet you have just announced,

The first order is an order denying the

motion for post-conviction relief and granting the motion

that the Defendant can proceed as an indigent.

MR. YOUN3: In connection with tiat, i

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-36a-

ARMSTRONG vv. STATE

DIX _D

APPEND D

Fia 955

Cue as. Pla, 399 Sole 85)

Sampson ARMSTRONG, Appellant,

v.

STATE of Florida, Appellee.

No, 48516.

Supreme Court of Florida

March 26, 1981

As Corrected on Denia! of Rehearing

June 15, 1981

Robert E. Pyle, Lake Alfred, for appe!-

lant.

Jim Smith, Atty. Gen, and George R

Georgieff and Donald K Rudser, and Law-

rence A Kaden, Asst Attys Gen, Tallahas-

see, for appellee

PER CURIAM

This cause is before the Court on appea!

from a judgment of conviction on two

counts of murder in the first degree and

one count of robbery. The Circuit Court of

the Tenth Judicial Circuit, in and for Har-

dee County, sentenced appellant Sampson

Armstrong to death We have jurisdiction

Art. V, § Mbx1), Fla Const

The appellant and co-defendant Ear! En-

mund were tried together and convicted of

the first-degree murders and robbery of

Thomas and Eunice Kersey. After re-

turning verdicts of guilt the trial jury heard

evidence on the issue of sentence pursuant

to section 921.141, Florida Statutes (1975),

and recommended the death penalty for

both defendants. The trial court imposed

sentences of death on Armstrong for the

two counts of first-degree murder and a

sentence of life imprisonment for the crime

of robbery. We affirm his convictions and

sentences of desth.

1, Facts

On April 1, 1975, at about eight o'clock, a

m., the bodies of Thomas and Eunice Ker-

sey were discovered by their daughter in

their rural Hardee County home, located on

state highway 62 between Fort Green to

the west and Wauchula to the east. Mr.

and Mrs Kersey, aged eighty-six and seven-

ty-four respectively, had been shot to death.

Some of the evidence constituting the

state's case in the trial court consisted of

physical items recovered at the scene and

examined in the course of investigation

The bodies were found on the kitchen floor,

near the back door of the home There was

a quantity of blood on the floor, some five

feet away from where the bodies were ly-

ing, that prompted the authorities to inves-

tigate the possibility that one of the perpe-

trators was wounded during the attack

Later that morning, police found Jeanette

Armstrong, the wife of appellant Sampson

Armstrong, being treated for # gunshot

wound in a hospital in nearby Avon Park, in

Highlands County. The blood recovered at

the scene proved to be of a different type

from either of the Kerseys' blood, and to

match the blood type of Jeanette Arm-

strong

On the ground outside the house, invest-

gators found a plastic jug filled with water

There were four firearm projectiles found

at the scene One was on the ground out-

side the house, one in the door jamb of the

back door, one in the water heater in the

kitchen of the house, and one on the floor,

under the body of Mrs Kersey. Mr Ker-

sey was shot six times in all, with three of

the wounds being superficial so that three

of the bullets exited the body. Three bul-

lets remained in her body and were recov-

ered The three bullets found in the body

all entered the body in the right side and

passed downward

Mr. Kersey was shot twice One bullet

entered his right arm and passed on

through his heart to the left side of his

body. The other entered his chest from

directly in front. Both bullets were recov-

ered. The bullet that entered from the

right side nad a slight downward angle

The one that entered the front of the chest

was almost straight in its path from front

to back. According to expert firearms

identification testimony, one of the bullets

recovered was s 38 caliber and the other

was s 22 caliber. The 38 caliber bullet

from the body of Mr. Kersey, a 38 caliber

-37a-

956 Fla

bullet from the body of Mrs. Kersey, and

the 88 caliber bullet found in the kitchen

door jamb, were al! fired from the same

weapon. The .22 caliber bullet found in the

body of Mr. Kersey and # .22 caliber bullet

from Mrs. Kersey were both fired from the

same gun

The pathologist who testified at trial] told

the court and the jury that when a bullet

enters the body, it can be deflected in nu-

merous ways, 80 that it is difficult to tel! of

the angle of fire from the path of the

bullet. With regard to the specific question

of reconstructing the position of Mrs Ker-

sey when she was shot, based on the paths

of the bullets, the pathologist testified,

“Well, there are all sorts of possi-

bilities There is really no way that |

could determine what position her body ~’as

in when she was shot (S)he was shot

from below, above, and behind" None of

the entrance wounds on either of the bodies

was inflicted from a range of closer than

several feet away

The state presented the testimony of a

witness who drove by the Kersey home

between 7:30 and 7:40 a m. on the day the

bodies were found) When she passed the

Kersey home, she saw on the side of the

road a@ large, cream-colored car with @

license tag bearing the prefix number 18.

There was a black man in the car. Another

witness for the state drove by the house at

7:35 that morning and saw a car parked

beside the road about two hundred yards

west of the house It was a large, ycllow

car with a dark colored top. There was one

person in the car.

The state's evidence also included the tes-

timony of two of the Kerseys’ neighbors.

One testified that on April lst he was at

work on his own land only two or three

hundred yards from the Kerseys’ house

when, at about 7:45 a m., he heard from six

to fifteen shots of gun fire and some high-

pitched screaming. The other neighbor said

that he lived only two hundred yards west

of the Kerseys, and that between 7:30 and

8:00 o'clock that morning he heard about

seven loud sounds. He would have thought

that they were caused by Mr. Kersey ham-

399 SOUTHERN REPORTER, 2d SERIES

mering to separate some scrap meta), ex-

cept for their irregular sequence. From the

sounds he remembered, he concluded that

they also could have been gunfire

A neighbor of the appellant also testified

for the state He said he lived about three-

fourths of a mile from Enmund's home, and

that they both lived on s road that runs off

of New York Avenue south of the town of

Wauchula. This witness testified that on

the morning of Apri] Ist, at about 6:30 he

was standing out beside the road, New

York Avenue, that goes into Wauchula to

the north, He was waiting for a nde that

was to take him to another town on person-

a) business The person who was to meet

him there did not come that morning, but

he was stil! standing there waiting for him

after 8.00 o'clock The witness said that at

approximately 6.30 or 6.45, he saw code-

fendant Ear] Enmund and his former com-

mon-law wife Ida Jean Shaw in their yel-

low Buick with a vinyl top Ida Jean Shaw

was driving There were two others in the

back seat, one male and one female The

car traveled north toward town (the town

of Wauchula) At about 8:00 o'clock, the

car came back, travelling “pretty fast” ina

southerly direction on New York Avenue,

with the appellant driving, Ida Jean Shaw

in the front seat, and one of the other two

people in the car lying down across the back

seal

The husband of the Kerseys’ granddaugh-

ter testified that Mr. Kersey usually kept

large amounts of money on his person He

generally kept the cash in the form of one

hundred-dollar bills. It was not unusual! for

him to have from ten to twenty of these on

his person at any given time. He kept the

money in his wallet, and the wallet was in

his hip pocket at all times. He normally

slept in his reguiir work clothing and kept

the wallet in his pocket even as he slept

Mr. Kersey, the witness testified, liked to

show his money to people he dealt with, and

he did so frequently and indiscriminately

He tended to save his money rather than to

spend it, and he was proudly vocal about

having it. He was a large, strong man who

felt that he could protect his wallet.

-38a-

ARMSTRONG v. STATE

Cre we Pia. 399 S024 859

Another witness testified that two weeks

prior to the murders, he saw that Mr. Ker-

sey had from twelve to fifteen, hundred

dollars on his person

A few weeks prior to the murders Ear!

Enmund and a friend jointly purchased

calf from Mr. Kersey. They paid him in

cash and when Mr Kersey took out his

wallet to put away the money he showed

them its contents. Enmund said, “Look at

the money this man’s got.” Mr Kersey

responded, “That ain't no money l can dig

up $15,000, $16,000 any time ] want to.”

Enmund’s friend told Mr Kersey that he

shouldn't be showing his money around like

that. Mr. Kersey said, “I know you, Jim 7

The other man responded, “Yeah, you know

me but you don't know the rest of them.”

After the killings, Mr Kersey's wallet was

not found on his person or anywhere in the

house

J.B Nea! testified that at about noon on

April 1, 1975, he saw Sampson Armstrong

in Lake Placid, in Highlands County. Arm-

strong told Nea! that he and his wife Jean-

ette had done a robbery that morning at 8

ranch house outside of Wauchula and that

Jeanette had been shot Armstrong wold

the witness that they had gone to the back

door of the house of an elderly man and

woman, saying that they needed water for

an overheated car. When Mr Kersey came

out of the house, Armstrong grabbed him,

held his gun on him, and told Jeanette to

get the money out of his pocket. Then, the

old man eried out to his wife, and through

the window Armstrong sav Mrs Kersey

coming out the front door and around the

house with a gun. Mrs Kersey shot Jean-

ette Armstrong. Then Armstrong knocked

the old man down and shot Mrs Kersey

Mr. Kersey got back up and Armstrong shot

him in the chest. After the shooting. they

put the old people in the house, took the

money and left

Jeanette Armstrong is the daughter of

Ids Jean Shaw. In April of 1975, Ide Jean

Shaw and Earl Enmund were living togeth-

er as husband and wife, and had been doing

so for about twelve years

There was vesuimo™) that the investigat-

ing authorities, based on wnesses’ descrip

tions of the car seer near the Kersey home

the morning of the murders, began to

search for a large. yellow or cream-<olored

car with a dark top and having a number 18

license tag prefix. They found s car meet-

ing this general description in the posses-

sion of Ida Jean Shaw

At Walker Memoria! Hospita! in Avon

Park or. the morning of the murders, police

questioned Ida Jear Shaw concerning Jean-

ette Armstrong's gunshot wound She wid

them that she and Jeanette had been

travelling that morning from Wauchula to

Avon Park when Jeanette entered an or-

ange grove to urinate and was shot. In the

subsequent course of the investigation of

the Kersey murders, Ida Jean Shaw gaves

statement to the state attorney implicating

Earl Enmund and Sampson Armstrong in

the erimes. Subsequent to that initia!

statement, she gave two statements, one of

them a forma! deposition, in which she re-

pudiated the ongina! statement In these

statements she said that Jeanette Arm-

strong left her house on March $1, 1975

with two men referred to as Luke and

Willie, According to this story, Jeanette

said that they were going to Fort Myers to

a nightclub. On the following morning

Luke and Willie brought Jeanette home

wounded. Jeanette, Luke and Wille then

told Ms Shaw to tel! anyone who asked

that Jeanette had been shot while trespass

ing in @ citrus grove The import of the

story told in the depositions was to impl-

cate “Luke and Willie” in the Kersey mur-

ders and to exculpate the defendanus In

one of her depositions, Ida Jean Shaw stat-

ed that her earlier statement implicating

the defendants in the erimes was false and

was fabricated by agreement with Jeanette

Armstrong and calculated to put Enmund

and Armstrong in jail and thus te free of

the strictures of married life

Ids Jean Shaw, over the objections of the

defendants, was called to testify at trie! as

a court's witness. The court examined her

and then the state and counsel for each of

the defendants cross-examined her

-39a-

958 Fis

Ms. Shaw testified at trial as follows At

and around the time of the crimes, she and

Enmund lived together in a house on Revel!

Road in Wauchula, and that they had held

themselves out to friends and neighbors and

in business transactions as husband and

wife for twelve years Her daughter Jean-

etle was married to Sampson Armstrong

and lived in Lake Placid On the weekend

preceding Tuesday, Apri! 1st, Ms Shaw cel-

ebrated a birthday. On Friday night, Jean-

ette came to her home. On Sunday, she

and Jeanette went to Lake Placid and

brought Sampson Armstrong back On

Monday night, March 8], Jeanette Arm-

strong, Enmund, and the appellant were al!

there at the house in Wauch:ia On Tues-

day, Apri! Ist, when she awoke at about

7:45 a m., none of the three was there

Neither was her brown and yellow 1969

Buick

Ms. Shaw got up and went to the neigh-

borhood wash house About ten minutes

later, either Enmund or Sampson Arm-

strong came into the wash house and told

her that Jeanette had been shot Ida Jean

Shaw went back to the house Jeanette

was in Ear! Enmund's red Plymouth auto

mobile The appellant was with her and

Enmund was in the house Ms Shaw then

took Jeanette up to the loca! store corner

and called an ambulance. Then Enmund

came to the corner where they were await-

ing the ambulance and asked her what had

happened to Jeanette. Ida Jean Shaw told

Enmund that Jeanette had been shot in an

orange grove. Then the ambulance came

and Ida Jean accompanied Jeanette on the

ride to the hospital Ids Jean learned from

Jeanette how she was shot Ear! followed

in a separate car. Sampson Armstrong also

went to the hospita! that day.

After spending Tuesday morning at the

hospital, Ms. Shaw left there with Ear! and

Sampson. They went to Wauchula to get

the children and then went on to Lake

Placid. On the way to Wauchula, Ida Jean

Shaw asked Enmund “why he did it” He

replied that he had seen Mr. Kersey's mon-

ey and therefore decided to rod him

Sampson Armstrong said that he made sure

the people were dead

399 SOUTHERN REPORTER, 2¢ SERIES

Ida Jean Shaw testified further that on

Wednesday, Apri] 2, 1975, she, Earl, Samp

son, and some of her children were in a car

on their way home from the hospital wher

Sampson gave her $200 By passing writ.

ten notes in the car, she asked him how

much money he got out of the robbery and

he responded that he had $600 left. She

took the $200 and made a loan payment on

an account of Ear) Enmund’s that was in

arrears. There was corroborating testimoe

ny of this, and that the bil! was paid with

two one-hundred-dollar bills

Ms Shaw testified that prior to the

events of April Ist, she kept a 22 caliber

pisto! in the glove compartment of her car

On Apri! 2, she removed the gun from the

loft at her house on Earl Enmund's di-

rections. He and Sampson told her to get

md of the gun and also s 38 caliber pisto!

that was at the house, because, Sampson

said, they had been used to kil! some people

She put the guns in the bottom of a bucket

of greens and gave the bucket to « friend,

Jeanette's paterna! uncle This person tes-

tifed that the bucket was @ large and

heavy meta! one and that the greens spoiled

in the trunk of his car. He said he threw

them away, bucket and all, and didn't know

about the guns The murder weapons were

never recovered

At trial Ms Shaw testified that the story

about Luke and Wille was complete fab-

meation, and that she made up the stor)

and related it at the request of the defend-

ants. Ear! Enmund, she said, instructed

her on this matter in letters smuggled out

of the jail

The state's counse! moved that Ida Jean

Shaw be calied as a court's witness on the

ground that due to the inconsistencies in

her pretria’ statements, the state was not

certain how she would testify and would

not vouch for her credibility. Through her

examination by the court, cross-examina-

tion by the state, and cross-examination by

counse! for each of the defendants, the fol-

lowing matters pertaining to her credibility

were brought out for consideration by the

jury Ms Shaw was granted immunity

-40a-

ARMSTRONG v. STATE

Fila 959

Cre as. Pla. 399 S026 853

from prosecution for any role she might

have played in the murders and robbery

At related above, she gave severa) incon-

sistent statements during the investigation

and prosecution of the crimes. One of her

statements was in a deposition under oath,

and at trial she conceded that she had lied

in that statement. Prior to the trial, she

was charged with perjury. She was arrest-

ed and held in jail for thirteen days. The

prosecutors advised her of the maximum

penalty for the erime of which she stood

accused. Then they promised her that she

would not be prosecuted for perjury if she

would testify at the murder and robbery

tris! and tell the truth

Il. Issues on Appeal of the Judgment

of Conviction

The appellant raises severa! points which

he contends require the reversal of his con-

vievions

The appellant argues that the tria! court

erred in admitting the testimony of Ida

Jean Shaw. He asserts that her inconsist-

ent pretrial statements, which resulted in @

charge of perjury, rendered her so unrelia-

ble as to be an incompetent witness He

also contends that the pendency of her per-

jury prosecution, which she was promised

would be discontinued if she would testify

truthfully, created an unacceptably high

risk that her testimony would be the prod-

vet of coercion.

(1) With regard to the unreliability ar-

gument, the trial court informed the jury

that Ms Shaw was being called as s court's

witness because the state could not vouch

in interviews with witnesses before trial,

the examiner “must exercise the utmost

care and caution to extract and not to

inject information, and by al! means to

resist the temptation to influence or bias

the testimony of the witnesses”

Lee v. State, 824 So.2d at 698

In Davis, the prosecuting attorney asked

the trial court to delay the swearnng of the

jury because one of the witnesses he intend-

ed to cal] had become uncooperative The

witness, a close friend of the defendant, had

made a statement in a deposition which

linked the defendant to the erime but im-

mediately before trial gave a different

account of what she knew. The prosecutor

conferred with her and told her that she

had three choices refuse to testify and be

held in contempt of court and jailed; give

an account that differed from her deposi-

tion statement and be charged with perjur)

and possibly imprisoned for fifteen years,

or testify to “the truth” in which event

nothing would happen to her The circum-

stances of the prosecutor's conference with

the witness were revealed to the jury. On

appeal, the district court reversed and re-

manded for a new trial, citing as authority

Lee v. State Applying the Lee principle to

the facts before it, the court in Davis con-

cluded:

While it is true that the assistant state

attorneys admonished the witness to tell

the truth, it must have been obvious to

the witness that the “truth” was that

which she had testified to at an earlier

deposition Rules of evidence and proce-

dure exist which are designed to aasist

prosecution and defense alike in eliciting

the truth from balky witnesses Coercion

and threats are not among these rules

Davis v. State, 834 So.2d at 626

-4la-

960 Fis

mony linking the appellant to the crimes

We disagree. In Lee v. State, the error was

not in allowing the witness to testify but in

keeping from the jury information regard-

ing the arrangement by which the state

gained the cooperation of the witness. In

Davis, the prosecutor indice's4 to the wit-

ness that she should testi/, consistently

with what she said before. Thus he “inject-

ed” information. In the case sub judice, the

prosecution did not suggest to Ms Shaw

what they wanted her to say, but simply

advised her to tel] the truth. We hold that

the court did not abuse its discretion in

allowing into evidence the testimony of Ida

Jean Shaw

(3-5) The appellant contends that a new

tria] is required because the jury was not

fully informed of the understanding be-

tween the state and Ida Jean Shaw. It is

true, as appellant points out, that it is

denia! of due process if the jury is misled as

to facts bearing on the credibility of @ wit-

ness. Napue v. Illinois, 360 US 264, 79

S.Ct. 1173, 8 LEd2d 1217 (1959) If e

failure to fully inform the jury of the inter-

est of & witness could in any reasonable

likelihood have affected the decision of the

jury, a new tris! is required Giglio v

United States, 405 US 150, 92 § Ct. 763, 31

L.Ed.24 104 (1972), Wolfe v. State, 190

So.2d 394 (Fla 1st DCA 1966) Our review

of the record reveals that the jury in the

present case was fully informed of Ms

Shaw's immunity transaction and her pend-

ing perjury prosecution

Having given careful consideration to ap-

pellant’s arguments, and having reviewed

the record to determine the sufficiency of

the evidence, we affirm the judgment of

399 SOUTHERN REPORTER, 2d SERIES

the appellant and which he therefore had

No Opportunity to rebut, explain, or deny

A death sentence based on such nondis-

closed information would violate the rule of

Gardner v. Florida, 430 US 849, 97 SCt

1197, 51 L.Ed.2d 893 (1977). During the

pendency of this appeal, we directed the

judge who imposed the sentences in this

case to state whether he did so based on any

such nondisclosed information. We are sat-

isfied from his response that there was no

due process violation under Gardner

The appellant advises us that Jeanette

Armstrong, originally a co-defendant with

him, was tried separately, convicted of two

counts of seconddegree murder and one

count of robbery, and sentenced to three

consecutive life sentences He argues that

his death sentences must be vacated be-

cause the jury was not advised of the ulti-

mate disposition of the charges against

Jeanette Armstrong

{7) In Messer v State, 330 So.2d 13°

(Fia 1976), we vacated the sentence of

death, partly on the ground that the court

erred in refusing to permit the defendant to

submit to the jury evidence of the plea-bar-

gained conviction and sentence of the appel-

lant's accomplice. Any evidence reasonab|y

related to a valid mitigating consideration

should, when proffered by the defendant,

be admitted into evidence at the sentencing

phase of a capita! felony trial. See, ¢ g.

Miller v. State, 832 So.2d 65 (Fis. 1976)

Appellant did not proffer the evidence in

question Therefore, even assuming the in-

formation had some valid mitigating value,

the following findings of fact

1 As an aggravated circumstance, the

felony, that i, the murders of

-42a-

ARMSTRONG +. STATE Fis 96]

Cre on Pla 399 S020 955

his wife Eunice Maye Kersey, aged 74,

were committed while the defendant

Armstrong was engaged, or was an ac-

complice, in the commission of or an at-

tempt to commit an armed robber) FS

921.141(5xd)

2. Ase further aggravating circum-

stance, the Court findings that the capital

felony was committed for pecuniary gain

FS 92).141(5f) The evidence is abun-

dantly clear that the armed robbery was

committed for pecuniary gain and that

the co-defendant Ear! Enmund was previ-

ously aware that Mr Kersey had # repu-

tation for keeping large sums of money

on his person The co-defendant Enmund

actually saw Mr Kersey with money, and

the testimony amply indicates that the

armed robbery of Apri! 1, 1975, was

planned ahead of time by the co-defend-

ant Enmund and that the defendant

Armstrong parucipated in the planning

and preparation

8 As ae further aggravating circum-

stance, the Court finds that the capita!

felony was especially heinous, atrocious,

or cruel) FS 921141(5xh) The evidence

amply supports a finding that the killing

of Mr Kersey aged 86, and Mrs Kersey

aged 74, was nol ® spontaneous matter

A reasonable person must conclude that

the killings were done for no other pur-

pose than to eliminate Mr. and Mrs Ker-

eey as witnesses to the armed robbery

The killings were premeditated in that

Mr. Kersey was shot two (2) times and

Mrs Kersey was shot six (6) times. Two

(2) bullets were subsequently recovered

Hi

Hii:

gett

gety

mt

s7itt

sSFEL

li

z

Mi

a

ib

:!

iu

Fi

i

i

were not fatal, and that thereafter some-

one stood back and fired upon her prone

body and then fired the bullets into the

heater and the wall Further, two (2)

different weapons, that is, a 22 caliber

weapon and a 38 weapon were fired at

and into Mr and Mrs Kersey

Three individuals were charged with

these crimes The co-defendant Enmund

and the defendant Sampson Armstrong

were tried together and the defendant

Jeanette Armstrong was tried separately

The Court knows from this trial and from

the orial of Jeanette Armstrong that she

wis shot at the scene and susiained seri-

ous wounds Since the defendant Jean-

ette Armstrong was seriously wounded

and since both Mr and Mrs Kersey were

each shot with bullets from two (2) dif-

ferent caliber guns, and since the evi-

dence establishes that Mr and Mrs Ker-

sey were each shot while in the prone

position, it is only reasonable to conclude,

and the Court so finds, that the co-de-

fendant Enmund and the defendant

Sampson Armstrong, each fired into the

bodies of Mr and Mrs Kersey

4. The other aggravating circum:

stances towit FS 921 141(5¥a) 921-

141(5Kb), O22 141(Sxe), 921.141(5xe):

and 921 141(5g), are inapplicable in this

case

As to mitigating circumstances involv-

ing the defendant Sampson Armstrong,

the Court makes the following findings

1 The Court has considered FS 921 -

-43a-

962 Fis

8. As to FS 921.141(6Xc), there is ab-

solutely no evidence that the victims

were a participant in the defendant's con-

duct or consented to the act

4. As to FS 921.141(6Xd), the evidence

clearly indicates that the defendant was

an active accomplice to the capita! felony

and that his participation in the capital

felony was major. As stated in para-

graph 3 of the aggravating circumstanc-

es, the evidence leads to the reasonable

conclusion that the defendant Armstrong

fired into the prone bodies of Mr. and

Mrs. Kersey

6. As to FS 921 141(6Xe), there is no

believable evidence that defendant acted

under extreme duress or under the sub-

stantial domination of another person

(See paragraph 2 above)

6 As to FS 921.141(6xf), there is ab-

solutely no evidence that the defendant's

capacity to appreciate the criminality of

his conduct or to conform his conduct to

the requirements of law was substantially

impaired

7. As to FS 921 141(6Xg), the defend-

ant was 23 years of age at the time of

this offense and this constitutes the only

possible mitigating circumstance as to the

defendant Armstrong

Therefore, in consideration of the evi-

dence presented at tria! and at the sen-

tencing hearing as to the defendant

Sampson Armstrong, the Court finds that

the aggravating circumstances, and upon

consideration thereof, the Court wes of

the opinion at the time of sentencing and

is now, some months later, that the sen-

tence of death is justified and appropri-

ate as to each Count of Murder in the

First Degree.

The trial court found three aggravating

circumstances: that the murders were com-

mitted in the course of a robbery; that they

were committed for pecuniary gain; and

that they were especially heinous, atrocious

and cruel. The court also stated that appel-

lant's age of 23 years at the time of the

crime “constitutes the only possible mitigat-

ing cireumstance.” On review of the sen-

tencing findings, evidence, and record we

399 SOLTHERN REPORTER, 2d SERIES

conclude that this statement does not cor

stitute @ finding of @ mitigating factor

based on youth. The court found that there

were no mitigating circumstances and the

factor of age was given no consideration

(8,9) The court's findings that the capi.

ta! felonies were committed in the course of

robbery and that the capital felonies were

motivated by pecuniary gain both “refer to

the same aspect of the defendant's crime’

Provence v. State, 337 So.2d 783, 786 (Fla

1976), cert. denied, 431 US 969, 97 SCt

2929, 53 L.Ed.2d 1065 (1977). The robber)

circumstance and the pecuniary motive con-

stitute “only one factor which we must

consider in this case” Jd at 786 Where

such double consideration of one factor ap

pears to have impaired the process of

weighing the aggravating circumstances

against the mitigating circumstances, the

sentence of death must be vacated See

Elledge v. State, 346 So.2d 998 (Fia.1977)

The “mere recitation of both cireumstanc-

es,” however, “does not in al! cases ca!) for

a condemnation of the sentencing hearng

and judgment." Hargrave v. State, 366

So.2d 1, 5 (Fia 1978), cert denied, 44 US

919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979)

The fact that the murders took place in the

course of a robbery and that the enmina!

episode was motivated by pecuniary gain

constitute one valid aggravating circum-

stance, amply established by the evidence

(10) The finding that the murders were

especially heinous, atrocious, and erve! can-

not be sustained. The language of this

statutory aggravating circumstance was ex-

pounded upon in State v. Dixon, 283 So.2d |

(Fla 1973), cert. denied, 416 U.S. 943, 4

S.Ct. 1950, 40 L.Ed.2d 295 (1974). The ma-

jority opinion in that case said

It is our interpretation that heinous

means extremely wicked or shocking!)

evil; that atrocious means outrageously

wicked and vile; and, that crue] means

designed to inflict a high degree of pain

with utter indifference to, or even enjoy-

ment of, the suffering of others. What u

intended to be included are those capita!

crimes where the actual commission of

the capital felony was accompanied by

-44a-

ARMSTRONG vy. STATE

Fis 963

Cis as. Pla. 399 S026 05)

such additional acts as to set the crime

apart from the norm of capita! felonies—

the conscienceless or pitiless crime which

is unnecessarily torturous to the victim

Id at 9. Based on that interpretation, the

Court stated in Cooper v. State, 836 So.2d

1133 (Fla 1976), cert. denied, 431 U.S. 925,

97 S Ct. 2220, 83 L.Ed.2d 239 (1977), that o

murder by shooting that causes instantane-

ous death is simply not in the “heinous,

atrocious, or ervel” category

{11} In support of his finding that the

killings were especially heinous, atrocious,

or cruel, the trial judge made reference to

the ages of the victims and stated that the

killings were “not @ spontaneous matter.”

The testimony at trial revealed, however,

that the murders were only at the scene of

the crime for a very brief period The shots

were heard at 7.45, the victims were found

dead at 8:00 0° clock The only direct

account of what transpired is from the tes-

timony of J. B. Nea! about Armstrong's

statement to him. By that account, the

shootings were indeed spontaneous and

were precipitated by the armed resistance

of Mrs Kersey. The judge also found sup

port for the finding of this factor in the

fact that the murders were premeditated

Nothing in section 921.141, as it stood at the

time of the crimes and the tria! of this case,

nor in the decisions of this Court construing

it, supports the proposition that the factor,

heinous, atrocious, or crue! is established by

the existence of premeditation.

(12) Discussing further the basis for his

finding, the judge said, “A reasonable per-

son must conclude that the killings were

done for no other purpose than to eliminate

Mr. and Mrs. Kersey as witnesses to the

armed robbery.” A purpose to eliminate

witnesses has been said to support the find-

ing that a capital felony “was committed

for the purpose of avoiding or preventing a

lawful arrest or effecting an escape from

custody.” § 921.141(5Xe), Fla Stat. (1975);

Riley v. State, 366 So.2d 19 (Fla.1978). In

order for such witness-elimination motive to

support a finding of the avoidance of arrest

circumstance when the victim is not a law

enforcement officer, “[p)roof of the requi-

site intent to avoid arrest and detection

must be very strong Riley v State

366 So.2d at 2

It has been said that execution-type slay.

ings, evincing @ cold, calculated design to

kill, fall into the category of heinous, atro-

cious, or crue) Magi! v. State, 886 So 2d

1188 (Fla 1980), Alvord v. State, 322 So.2d

533 (Fla 1975), cert. denied, 428 U.S 923, 96

S.Ct. 8234, 49 L Ed.2d 1226 (1976). In order

to invoke such a basis for a heinousness

finding, however, the same standard of

proof as is required to establish a purpose to

eliminate witnesses should be applied It

simply cannot be said that there was proof

that the robbers killed in order to assure

that there would be no witnesses against

them

The tria! judge based his conclusion on

the testimony of the pathologist The

judge found the testimony to show that the

victims, after the initia! shooting, were laid

out prone and then “finished off" The

testimony of the pathologist makes clear,

however, that his conclusions as to the di-

rection of fire and the positions of the vic-

tims when shot were equivocal at best

Thus it was insufficient to prove that the

Motivation was witness elimination. It is

possible to infer that the robbers used their

guns in order to increase their chances of

departing the Kersey ranch with their lives

(13) The jury recommended death The

trial judge erroneously considered certain

circumstances as aggravating The error

did not impair the process of weighing the

aggravating against the mitigating circum-

stances because there were no mitigating

circumstances to weigh The killings took

place in the course of a robbery. Death is

the appropriate punishment. The sentences

of death are affirmed

It is 80 ordered

ADKINS, BOYD, OVERTON and ENG-

LAND, JJ., concur.

SUNDBERG, Chief Justice, concurs as to

conviction, and dissents as to sentences:

Due to substantia! errors in the aggravat-

ing findings, 1 dissent from affirming the

964 Fla 399 SOLTHERN REPORTER, 2d SERIES

death sentences and would remand for re-

sentencing by the tra: jucge on!)

-$6a- APPENDIX E

Iii THE CIRCUIT CAURT OF THE TENTH JUDICIAL CIRCUIT

IN AND FOR HARDEE COUITY, FLAIO"’

SEPTEMBER TER’ 19 75

CASE NO, 75-110 gaa 5

STATE OF FLORID‘

af ae = o 1 set 2

deorasene Wad Wursrorsy :

r efendant ic.

QUDG'ENT AND SENTENCE Se —-

The Defendant SA):PSON ALSERT ARMSTRONG beino nersonally

before this Court, reoresented by JON ANDERSO? » his attorney

os Taal ¢

of record, havinco entered a plea of quiltv to the crime of

entered a plea of tiolo Contendere to the crime of

UIT I. FIRST DEGREE }.URDER. COLT II. FIRST DEGREE MURDER.

CO.V'T III. ROBEERY

and tne Court navina inquired ano given the Vefendant an opnortunity to be nearc

and show cause why he should not be adjudged quilty and sentenced as provided by

law, including an opportunity to offer matters in mitiaation of sentence, and nc

Cause being shown, it is thereupon:

Ordered that the Defendant SaA!.PSO! ALEERT ARMSTRONG 1s hereby

adjudicated quilty of the crime of coe . It is the

sentence of the law that said Defendant be committed to the custody of the Depart-

ment of Offender Rehabilitation of the State of Florida, to be imprisoned at haru

labor for the term of peices in the institution in

the State Correctional System to which said Department may cause you to be confined.

(The Court recommends that you be confined at type institution.)

It is further ordered that vou shal) be allowed 154 DAYS credit

for such time as you have been incarcerated prior to the Imposition of this sentence

for this offense. (No credit should be allowed if the Defendant is already under

sentence or if credit has been previously given for another offense. Strike if not

applicable.)

It is further ordered that this sentence is (concurrent) (consecutive)

with the sentence imposed for the crime of

in Case . County, !lo, . (Strike if not applicable.)

It is further ordered that the Sheriff of ADOPT County, Florida,

is hereby ordered and directed to deliver said Defendant to the Department of

Nffender Rehabilitation together with a copy of this Judgment and Sentence. It is

further ordered and adjudaed that said Defendant shall pay the sum of One Dollar

($1.09) pursuant to Section 943.24, Florida Statutes.

The Defendant in Open Court was advised of his right to appeal from this

Judoment and Sentence within thirty days from this date, and the Defendant's

entitlement to the assistance of counsel in taking said appeal upon a showing that

said Defendant was entitled to an attorney at the expense of the State.

[RST DEGREE MURDER, OM BOTH OF THE TWO CCUNTS, AND COUNT ITI ROPERRYs cours

‘*THE REST OF YOUR NATURAL LIFE, FOR COUNT I11, TO RUN CONCURRENT «ITA Counts

I AND Il.

POR COUNTS I AND II, TO BE TRANSPORTED TO STATE PRISON TO BE PUT TO DEATH BY

ELECTROCUTION.

° i -47a- of

The follovina are the finaerprints of the above-nared Defendant,

LPP fis WwW

(FINGERPRINTS)

T. Riaht Thumb OZ Trant Index J. Riont ‘"iddle | 4%, Riant Rina B. Right Little

| 4 tele eee

eft Thum 7. Left Index b. Left "iddle 5. Left Kino TO. Left Little

4 ‘

" yt f

#

= St ig

&- a be bs | os =

; =. | SF rae

DONE AND ORDERED IN Open Court at HARDEE County

Florida, this 20 $b day of SEPLEMBER Se | i PR FEREBY CEeTIFY

that the above and foregoing Fingerprints (on this Judament and Sentence are the

fingerprints of the tr antag Ai SA}PS ALPERT ARMSTRONG

and that they were placed thereon by sate oe Tn my presence in Open Court

this date.

“ Widen pad

( ~48a- ( APPENDIX F

INDICTMENT

Bu the Cirruit Court, For The Tenth Judicial Circurt of Flornde HARDEE

County, SPRING Term, in the yeer of our Lord one thousend nine hundred enc

SEVENTY-FIVE

Che State of Florida Indictment for

| b FIRST DEGREE MURDEF

= t E [RAMP SON ALBERT ARMSTRONG m 1 eps. 7862.04(1)

1 2° 678 , (Capital Felony)

one’ ‘akg Two Counts

he CoRCUIT COURT ROBBERY 613.011 (FELONY)

———3rrtir Name and by the Authority of the State of Florida:

The Grand Jurors of the State of Florida, empaneled and sworn to inquire and true pre.

sentment make in and for the County of HARDEE upon ther oath do present the:

SAMPSON ALBERT ARMSTRONG of the County of HARDEE and State of Florida, on the

lst dey of April in the year of our Lord one thousend nine

hundred and §=—6 Seventy -Five in the County and State eforesead unlawfully

and from a premeditated design to effect the death of Thomas Henry

Kersey, Gid inflict mortal wounds upon the said Thomas Henry Kersey,

by shooting him with a firearm, a further description of which is to

the Grand Jurors unknown, from which mortal wounds the said Thomas

Henry Kersey did languish and die on the lst day of April, 1975,

contrary to the statute in such cases made and provided, and against

the peace and dignity of the State of Florida.

COUNT TWO

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA:

The Grand Jurors of the State ~f Florida, empaneled and sworn

to inguire and true presentment make in and for the County of HARDEE

upon their oath do present that SAMPSON ALBERT ARMSTRONG of the

County of HARDEE and State of Florida, on the lst day of April in

the year of our Lord one thousand nine hundred and seventy-five in the

County and state aforesaid unlawfully and from a premeditated design

to effect the death of Eunice Mae Kersey, did inflict mortal wounds

upon the said Eunice Mae Kersey, by shooting her with a firearm, 4

further description of which is to the Grand Jurors unknown, from

A Truf Bit . Foreman of Grong Jury

Presented in Open Court this A dey of 1‘.

-49a- .7

STATE OF FLORIDA VS

SAMPSON ALBERT ARMSTRONG

PAGE 2

COUNT TWO CONTINUED

which mortal wounds the said Eunice Mae Kersey did languish and die

on the lst day of April, 1975, contrary to the statute in such cases

made and provided, and against the peace and dignity of the State

of Florida.

COUNT THREE

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA:

The Grand Jurors of the State of Florida, empaneled and sworn

to inguire and true presentment make in and for the County of HARDEE

upon their oath do present that SAMPSON ALBERT ARMSTRONG of the

County of HARDEE and State of Florica, on the lst day of Apral in

the year of our Lord one thousand nine hundred and seventy-five in

the County and State aforesaid unlawfully by force, violence or

assault or putting in fear did feloniously rob, steal and take away

from the person or custody of Thomas Henry Kersey money or other

property the subject of larceny, by the use of a firearm, to-wit:

cash, in currency and coin of the United States of America, the

property of Thomas Henry Kersey, with intent permanently to deprive

the owner of his property, and the said Thomas Henry Kersey was

then and there entitled to the possession of the said cash as against

the defendant SAMPSON ALBERT ARMSTRONG was not then and there the

owner or entitled to possession of said cash, in violation of Section

813.011, Florida Statutes.

A TRUE BILL , Foreman of Grand Jury

Presented in Open Court this 224 say of ar 4 , 19 TS.

-50a- (

STATE OF FLOIRDA

COUNTY OF HARDEE

The undersigned State Attorney states that he as State

Attorney of the Tenth Judicial Circuit in and for Hardee County,

Florida, as authorized and required by law, has advised the

Grand Jury returning this Indictment.

r a .

olsen >

arty, State prrtorne)

Tenth Judicial Carcuit

sa eae

FULED FOR PICORD THIS ee "SS pay OF

ave ee wm SS pe :

" ot./7 95

tee mvt 2.

re FT a

6 ¢ P.tG3010

JAND VER-FIED

Bik CONK Cetin en

a eee YY

t, . -

Pere tewety tue ~

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT

IN AND FOR HARDEE COUNTY, FLORIDA

sb reviiie: tate i sy intinteis te Saseg ble in tt doesn lana bees x

STATE OF FLORIDA,

Plaintiff,

v. : CRIMINAL AQTION NO, 75-110

SAMPSON ARMSTRONG,

Defendant. :

MOTION TO VACATE, SET ASIDE, OR

CORRECT CONVICTION AND SENTENCE

The defendant, Sampson Armstrong, by and through

his undersigned counsel, and pursuant to Fla. R. Crim. P.

3.8650, moves to vacate and set aside the judgment of convic-

tion and the sentence of death in this case. The grounds for

this motion, described in detail below, are that the judgment

was entered and the sentence imposed in violation of the

Constitution of the United States and the laws and Constitu-

tion of the State of Florida.

In support of this motion, defendant states the

following:

1. On September 30, 1975, following a jury trial,

Gefendant and his co-defendant, Earl Enmund, were convicted

in this Court on two counts of first-degree murder, in

violation of Section 782.04(1), Florida Statutes, and one

count of robbery, in violation of Section 613.011, Florida

Statutes.

2. At approximately 9:00 p.m. on September 30,

1975, following the jury's verdict, the Court conducted a

separate sentencing proceeding before the trial jur

, as

equired by Section 921.141, Florida Statutes. waa

+

WAR 9g 1962

CO. Eo. w ELST

CiLe? Cie un COURT

3. The presentation of evidence concerning the

two defendants, counsel's arguments to the jury, and the

Court's instructions on sentencing were completed at 9:31

r

p.m.

4. At 10:02 p.m. on September 30, 1975, the Jury

recommended that both defendants be sentenced to death.

Ss. Immediately following the jury's recommen-

dation, the Court sentenced defendant Armstrong and his co-

defendant to death. On the robbery ¢ the Court

©

‘

’

ao

-

sentenced the defendants to life imprisonment,

6. Defendant Armstrong testified in his own

behalf in the quilt phase of the triel. He did not testify

in the sentencing phase.

76 The judgment and sentences were affirmed by

the Supreme Court of Florida on March 26, 1981. 399 So.

24 953. The Chief Justice dissented with respect to tne

sentence of death. A petition for rehearing was denied on

June 15, 198'.

8. On O 1975, defendant filed a mocior

n

“?

°o

ry

o

a |

nv

for a new trial in this Court. The motion was denied after

oral argument but without an evidentiary hearing.

9. Apart from the motion described in paragrap?

no previous post-conviction motion has been filed.

10. Defendant's appellate counsel failed to file

@ petition for a writ of certiorari in the Supreme Court of

the United States.

-53a-

STATEMENT

The evidence at trial was as follows:

WW, At approximately 7:45 a.m. on April 1, 1975,

Thomas Henry Kersey and Eunice Mae Kersey, an elderiy white

couple, were shot and killed at their house on Poute 62 near

Fort Green in Hardee County, Florida.

12. Defendant, his wife, Jeanette Armstronc, and

Earl Enmund, the common-law husband of Jeanette's mother, Ida

Jean Shaw, were charged with first-decree murder and robbery

as a result of the Kersey shootings.

13. All three defendants are Diack.

M4. Thomas Fersey and Eunice Kersey were each

shot with two guns, @ .22 caliber gun and a .38 caliber gun

(Tr. 886-897).

Ss. A blood stain found on the floor of the Kersey

house during the investigation of the shootings did not

match the blood type of either Thomas Kersey or Eunice Kersey

(Tr. 901-912).

16. A water jug full of water was found outside

the Kersey house shortly after the shootings (Tr. 807).

7. On April 1, 1975, Jeanette Armstrong was

shot in the left side with a .38 caliber bullet. She was

treated at Walker Memorial Hospital in Avon Park, Florida

(Tr. 662-884).

16. Ida Jean Shaw, when interviewed by police

after Jeane:te was shot, stated that the shooting hed

occurred in an orange grove, where she and Jeanette had

stopped to urinate (Tr. 941-943, 989, 1007, 1174, 1232; R.

305-311). Shaw also stated that she discarded Jeanette's

-54a-

bloody clothing in the bushes alonaside Route 64 near the

Hardee County ‘Highlands County line (Tr. 1020-1023).

19. Police found Jeanette Armstrong's clothes in

the place described by Ida Jean Shaw (Tr. 1020-1023).

20. Jeanette Armstrong's blood type and the biood

type of the blood found on the clothing discarded in the

bushes alongside Route 64 matched the type of the blood found

in the stain on the floor of the Kersey house (Tr. 901-912).

21. No fingerprints, other than those of the

Kerseys, were found in the Kersey house (Tr. 809, 640).

22. Several weeks before the Kerseys were shot,

co-defendant Enmund and another man, James Lindsey, purchased

a cow from Thomas Kersey (Tr. 736-741, 747-750, 1257-1259).

23. On that occasion, Enmund noticed and remarkec

on the amount of money in Kersey's wallet (Tr. 736-741,

747-750, 1257-1259).

24. Neither money nor @ wallet was found in

the Kersey house after the shootings on April 1, 1975

(Tr. 836-837).

25. The State's principal witnesses against defen-

dant were Ida Jean Shaw, Willie Lee, J. B. Neal, and Betty

Wilson.

26. Ida Jean Shaw gave numerous inconsistent pre-

trial statements. At the time of defendant's trial, Shaw

faced a charge of perjury based on allegedly false statements

made under oath in her pretrial deposition (Tr. 929).

27. As a consequence of the perjury charges pend-

ing against Shaw, the State refused to call her as @ prose~

cution witness.

28. Shaw testified at trial as a witness called

by the Court (Tr. 918-922).

-55a-

29. In exchange for her testimony, Shaw was given

immunity from prosecution for murder or robbery in connection

with the Kerseys' death (Tr. 929).

30. In addition, Shaw was told that her prosecu-

tion for perjury would be dropped if she told the truth at

defendant's trial (Tr. 929).

31. Notwithstanding the grant of immunity and

the promise with respect to the perjury prosecution, Shaw

testified on direct examination by the Court that she did not

think she had been promised anything in return for her

testimony and that she gid not think she had been told that

she would not be prosecuted if she testified (Tr. 954).

32. On cross-examination by counsel for defendant,

Shaw again testified that she 4id not think she had been

promised anything in return for her testimony (Tr. 1002).

33. Shaw then testified that the prosecutor had

told her that she woulé not be prosecuted for murder if she

told the truth at defendant's trial (Tr. 1002-1003).

34. Throughout her testimony at trial, Shaw

repeatedly admitted that she had lied and lied again in her

pretrial statements (Tr. 960, 969, 972, 973, 977, 979, 984,

985, 986, 989, 1000, 1005, 1008, 1010).

35. Shaw testified that Jeanette Armstrong came

to her home on Friday, March 26, 1975, to help Shaw celebrate

her 35th birthday, which was the next day (Tr. 935).

36. Shaw further testified that on Sunday, March 30,

1975, she and Jeanette Armstrong went to Lake Placid, Florida,

and picked up defendant and brought him back to the home of

Shaw and co-defendant Enmund (Tr. 935)-

37. Shaw stated that when she awoke at approxi-

mately 7:45 a.m. on April 1, 1975, defendant, co-defendant

e§@«-

-56a-

Enmund, and Jeanette Armstrong were not at the house. She

Stated that al] three were there the night before (Tr. 936).

38. Shaw also stated that her car, a yellow-scnd-

brown Buick, was not at the house on the morning of Tuesday,

April 1, 1975 (Tr. 937).

39. Shaw testified that at approximately 6:00 a.r.

on April 1, 1975, defendant, co-defendant Enmund, and Jeanette

Armstrong returned to the house, and Shaw learned that

Jeanette Armstrong had been shot (Tr. 938-939).

40. Shaw testified that she went to the hospital

with her daughter (Tr. 940-941).

4). On direct examination by the Court, Shaw said

that she rode back to Wauchula from the hospital] with defen-

Gant and co-defendant Enmund and that they then drove to Lake

Placid. She testified that at no time during this trip on

April 1 did she discuss what happened that morning with

defendant or with co-defendant Enmund (Tr. 944-945).

42. On cross-examination by the prosecutor, after

Shaw had been permitted to refresh her recollection by

reading from her August 19, 1975, statement to the prosecutor,

Shaw testified that during the trip back from the hospital on

April 1, 1975, defendant said that “he made sure that the

people was dead" (Tr. 958-959).

43. Shaw further testified that on April 2, 1975,

as she, defendant, and co-defendant Enmund were returning

from visiting Jeanette Armstrong in the hospital, defendant

gave her $200 in cash (Tr. 948, 1000-1001).

“4. Shaw testified that during the same sutomobile

ride on April 2, 1975, she and defendant exchanged notes in

which she esked “how much he got out of the robbery* end he

said “he hed $600 left* (Tr. 948, 998).

-57a-

45. Shaw stated that she “never owned a gun”

but that she always kept a .22 caliber pistoi in the glove

compartment of her car (Tr. 949-950).

46. Shaw further stated that either defendant or

his wife, Jeanette Armstrong, owned a .38 caliber gun and

that the last time Shaw saw the gun before April 1, 1975,

Jeanette Armstrong had it (Tr. 951-952).

47. Shaw testified that sometime after April 1,

1975, the two guns were inside her house and that defendant

and co-defendant Enmund told her to get rid of the guns

(Tr. 951-952).

48. Shaw asserted that defendant said she should

get rid of the guns “because they had killed some people®

(Tr. 953).

49. Shaw testified that she put the guns in a

bucket of greens that she gave to Jim Pugh, the brother of

Jeanette Armstrong's father, Otis Pugh (Tr. 953).

50. On cross-examination by the prosecution, Shaw

testified that in fact she had disposed of three guns, that

the third gun was also a .38, and that she did not know to

whom the third gun belonged (Tr. 964-965).

$1. Before trial, Shaw gave statements to the

effect that on Sunday night, March 30, 1975, or Monday night,

March 31, 1975, Jeanette Armstrong left Shaw's house in

Wauchula and went out with two men named Lefe and Willie.

According to Shaw's pretrial deposition, Luke and Willie

brought Jeanette Armstrong back to her mother's house on the

morning of April 1, 1975, efter she had been shot (Tr. 968,

970, 1003-1007; R. 120-167). Shew also steted befcre trie)

thet she and Jeanette Armstrong hed agreed to try to blame

=

-58a-

the Kersey shootings on defendant and co-defendan: Enmund, so

that the men would go to prison and the worer would be free

of their husbands (Tr. 964-989).

S2 « The second important prosecution witness was

Willie Lee, a neichbor of co-defendant Enmund and Ida Jean

Shaw.

$3. Lee testified that at around 6:30 a.m. or

6:45 a.m. on April 1, 1975, he was standing alongside the

road in front of his house when he saw Ida Jean Shaw and

Earl Enmund drive by in a yellow Buick with a vinyl top.

Lee stated that Shaw was driving, Enmund was in the front

passenger seat, and two other black persons, one man and

One woman, were riding in the back seat (Tr. 1051-1052).

$4. Lee did not recognize the other people in

the car. He said he had never seen ther before in his life

(Tr. 1052, 1058).

$5. Lee testified that the car was headed north

(Tr. 1051-1052). That is the direction it would have been

traveling if it had been headed to the Kersey house.

56. Lee further testified that he was still

standing alongside the road at approximately 8:00 a.m. when

he saw the yellow Buick return in the opposite direction

(Tr. 1054-1055).

$7. At that time, Lee testified, co-defendant

Enmund was driving, the car was traveling at a high rate of

speed, end one of the two people in the back seat was lying

@own on the other's lep (Tr. 1054-1055).

$e. Lee stated that there were fuur people in the

car when le sew it return, but he did not say that Ida Jean

Shew was one of the four (Tr. '054).

-59a-

59. Lee testified that he does not know defendant

or Jeanette Armstrong and that he could not identify either

of them as passenaers in the Buick (Tr. 1074).

60. Lee admitted that he needed money to feed his

15 children, but he denied awareness of a $1,000 reward for

information leading to a conviction in connection with the

Kersey shootings (Tr. 1063-1065).

61. At his pretrial deposition, Lee admitted being

a convicted felon and being “fifteen or sixteen thousand

dollars" in debt (R. 83, 86). Neither of these facts was

used to impeach Lee's testimony at trial.

62. The third major prosecution witness against

defendant was J. B. Neal, @ migrant worker who became

acquainted with defendant in Lake Placid, Florida.

63. Neal testified that on April 1, 1975, some-

time between 11:00 a.m. and 11:30 a.m., he was riding with

his girl friend in Lake Placid, Florida, when defendant

hailed him and asked to speak with him (Tr. 1096, 1106).

64. Neal stated that, after driving his girl

friend home, he returned to the corner where defendant was

waiting, and defendant got into Neal's car and told him to

drive around the block (Tr. 1097).

65. Neal further testified that during the ride

defendant said that he and his wife “had done a job*

(Tr. 1097).

66. According to Neal, defendant said that an old

man and an old woman were living at the place where they did

the job and that “the old lady shot Jeanette” (Tr. 1096).

67. Neal testified that defendant told the fcllow-

ing story (Tr. 1098-1102):

-60a-

(a) Defendant went to the door of the house

and asked the old man for water for an overheated

car.

(b) When the old man went behind the house to

get a jug for the water, defendant grabbed him, held a

gun to him, and told Jeanette to get his money.

(c) The old man called to his wife, and the

old lady came around the house and shot Jeanette.

(d) Defendant then knocked the old man down

and shot the old woman.

(e) The old man got up, and defendant shot

the old man.

(f£) Defendant took the bodies into the house

and laid them “head to head.”

(9g) Defendant stole "$2,000, if that” from

the old man.

68. Neal testified that defendant, after recount-

ing this story, gave Neal $20, in exchange for which Neal

agreed to tell the authorities that he drove defendant from

Lake Placid to Wauchula on the morning of April 1 (Tr.

1102).

69. Neal admitted that the Hardee County Sheriff

mentioned a $1,000 reward to him when he was interrogated

concerning defendant (Tr. 1103).

70. On cross-examination by counsel for defendant,

Neal stated that he did not drive defendant to Wauchula on

April 1, 1975 (Tr. 1105).

We In his pretrial deposition, Neal stated

that he did drive defendant to Wauchula on April 1, 1975

(R. 277-278).

-6la-

Fae This glaring inconsistency was not used to

impeach Neal's testimony at trial.

ae The State's final important witness was Betty

Wilson, a resident of Lake Placid, Florida, who testified

that she had known defendant and his wife for a long time

(Tr. 1068).

74, Wilson testified that defendant told her that

he had heard his wife got shot in an orange grove and that

two old people, who had been killed, had been shot with the

same gun that shot Jeanette (Tr. 1089-1090).

75. Defendant and co-defendant Enmund each testi-

fied in his own defense.

76. Defendant testified that he was in Lake

Placid on the morning of April 1, 1975. He stated that he

did not go to Wauchula on March 30, 1975, that he was in

Lake Placid all day on March 31, 1975, and that on the night

of March 31, he slept in the room provided by his employer,

Lucius Williams (Tr. 1153-1154, 1157-1158, 1160-1165).

77. Defendant further testified that he and his

wife, Jeanette, argued on March 28, 1975, and that she went

to stay with her mother, Ida Jean Shaw, as she had done in

the past (Tr. 1156-1160).

78, Defendant testified that on his way to work

on April 1, 1975, as he approached the corner in Lake Placid

where fruit pickers assembled each day for transportation to

the groves, he learned’ that someone had just called the

public telephone booth at the corner in an effort to reach

him and inform him that his wife had been shot (Tr. 1167,

11869-1190).

79. Defendant testified that, when he heard the

news about his wife, he asked J. B. Neal to drive him to his

e «

-62a-

mother-in-law's house in Wauchula. Defendant testified that

Neal did so, and that defendant paid him $20 for the ride

(Tr. 1167-1172).

60. Defendant further testified that, when he

arrived in Wauchula, co-defendant Enmund was at home and that

they drove together to Walker Memorial Hospital in Avon Park,

Florida, to visit Jeanette (Tr. 1171-1173),

81, Jim Hill, a friend and neighbor of defendant,

testified that he saw defendant in Lake Placid between 7:00

a.m. and 7:30 a.m. on April 1, 1975. Hill testified that he

and defendant talked for five or ten minutes on a street

corner when Hill was on his way to work (Tr. 1202-1204).

82. Lake Placid is approximately 40 miles fror

Wauchula. Driving from one town to the other takes approxi-

mately one hour (Tr. 1198).

83. The Kerseys' house was approximately eight

miles from Wauchula, in the opposite direction from Lake

Placid (Tr. 780).

84, Gordon Goodson, a detective with the Hardee

County Sheriff's Department, testified that he interviewed

Gefendant at Walker Memorial Hospital at approximately

10:30 a.m. on April 1, 1975. The interview lasted about 15

minutes (Tr. 1207-1208).

- 12 -

-63a-

REASONS FOR GRANTING POST-CONVICTION RELIEF

65. Following is a brief discussion of several

of the arounds that warrant relief from defendant's sentence

on conviction. Because defendant's present counse: becan

their involvement in this case within the last four weeks,

the list of arguments presented below does not purport to be

exhaustive. Nor are the arguments fully developed and

supported with all the legal citations and evidence that may

be gathered on further investigation. The Governor's signing

of defendant's death warrant on March 4, 1982, has sharply

curtailed the opportunity for thoroughgoing research and

exploration of the facts of the case. Nevertheless, the

contentions set forth below are more than adequate to justify

the granting of relief. We begin with the reasons for the

invalidity of defendant's death sentence and then turn to the

grounds on which defendant's conviction should be set aside.

I. INVALIDITY OF THE DEATH PENALTY IN THIS CASE

A. THE GOVERNING FLORIDA STATUTE AND THE

TRIAL COURT'S INSTRUCTIONS TO THE

JURY IMPROPERLY LIMITED THE MITIGATING

CIRCUMSTANCES THAT COULD BE CONSIDERED

66. Defendant's death sentence is invalid because

the procedure by which it was imposed violates the require-

ments of the Eighth and Fourteenth Amendments, as explained

in Lockett v. Ohio, 438 U.S. 586 (1978).

67. Defendant was convicted and sentenced in

September 1975. At that time, the Florida statute that

governed the sentencing proceeding, Section 921,141, listed

seven specific mitigating circumstances that could be

° ie

-64a-

considered by the jury in rendering its advisory sentence.

See Section 921.141(6).

68. The statute further provided that, in ren-

Gering its advisory sentence, the jury should determine

*"[w)hether sufficient mitigating circumstances exist

as enumerated in subsection (6), which outweigh the aggra-

vating circumstances found to exist * * * ." Section

921.141(2)(b) (emphasis added).

89. The Florida statute further provided that, in

imposing a sentence of death, the Court must make a written

finding that “there are insufficient mitigating circumstances,

as enumerated in subsection (6), to outweigh the aggravating

circumstances." Section 921.141(3)(b) (emphasis added).

90. At the conclusion of the sentencing proceeding

in this case, this Court instructed the jury to determine

®"whether sufficient mitigating circumstances exist as hereafter

enumerated which outweigh the aggravating circumstances found

to exist" (Tr. 1434) (emphasis added).

91. The Court then listed the seven specific miti-

gating circumstances provided by statute (Tr. 1435-1436).

92. The jury's verdict form explicitly stated that

the jury had answered negatively the question “whether

sufficient mitigating circumstances defined by the Court's

charge do outweigh such aggravating circumstances" (Tr. 1436)

(emphasis added).

93. In imposing senterce, “his Court stated

(Tr. 1446):

I find that the [aggravating circumstances found to

exist) are mot set off by mitigating circumstances,

in particular, the age of the Defendant, nor do I

find from my review of the evidence of the case that

the Defendant was acting under duress nor under the

substantial domination of another person.

-65a-

94. In written findings entered 19 months later

in accordance with the mandate of the Florida Supreme Court,

this Court stated that “the defendant was 23 years of age at

the time of this offense and this constitutes the only possi-

ble mitigating circumstance as to the defendant Armstrong”

(399 So. 2d at 962).

95. In affirming defendant's conviction and

sentence, the Florida Supreme Court stated (399 So. 2d at

962):

On review of the sentencing findings, evidence, and

record we conclude that this statement does not

constitute a finding of a mitiqatina factor based

on youth. The [trial) court found that there were

no mitigating circumstances and the factor of age

was given no consideration.

96. The lanauage of the statute, the Court's

“instructions to the jury, the jury's verdict, the Court's

sentencing findings, and the opinion of the Florida Supreme

Court all demonstrate that the jury could have rendered

an advisory verdict of life imprisonment only if it found

that one or more of the specific mitigating circumstances

listed in the statute and in the Court's instructions out-

weighed the aggravating circumstances found to exist.

97. This limitation of mitigating circumstances

to an enumerated list is inconsistent with the Supreme

Court's decision in Lockett v. Ohio, 438 U.S. 586 (1978),

reaffirmed two months ago in Fddinas v. Oklahoma, 102 S. Ct.

869, 874-875 (1982), and followed in Washington v. Watkins,

655 P.26 1346, 1369-1371, 1373-1377 (Sth Cir. 1981).

98. The rule adopted and applied by the Supreme

Court in Lockett and Eddings is that “the sentencer in

capital cases must be permitted to consider any relevant

mitigating factor" (102 S. Ct. at 875) (emphasis added),

© 3§ -

-66a-

99. The factors recoagnized by the Supreme Court

as relevant include “any aspect of a defendant

record" (438 U.S. at 604, quoted in 102 S. Ct. at 674

(emphasis added).

100. At the sentencing proceeding in this case

Betty Fine, defendant Armstrong's parole officer, testified

that defendant is an epileptic, that he suffers from severe

headaches, that he had numerous financial problems, that he

and his wife had marital difficulties attribdu

fad

a

ty

>

a

o

>

Y

e

"

infidelity, and that his wife °on occasion hit him in the

head with e bottle and * * * [once] bit him on the side of

the face," leaving a scar (Tr. 1417-142C

101, Fine also testified that defendant was

stantially dominated by Jeanette Armstrong, by her emotional

hold over him® (Tr. 1420).

described in the preceding paracrap?, the jury could not

consider any of the matters mentioned in Fine’ ®& testimony as

mitigating factors to be weighed against the aggravating

circumstances found to exist.

103. Moreover, because this Court announced before

the sentencing proceeding began that its instructions to the

jury would paraphrase the statute and would refer to °miti-

gating circumstances as defined in the Court's charge”

(Tr. 1402; emphasis added), defendant may heave been discour-

ased from introducing evidence of other relevant mitigating

factors.

104. These factors include (a) defendant's low 10;

(b) his minimal amount of schooling; (c) his poor reading and

writing ability: (€) his illegitimacy; (e) his poverty; (f)

his lack of any a

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Petition — ARMSTRONG v. FLORIDA (No. 83-5145) | Frix