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)
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o
'
@o
co
v
:
.
Oo
oO
=
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|
’
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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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