# Petition — ARMSTRONG v. FLORIDA (No. 83-5145) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1639%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text ene s "meee - wa a“ ey inn Cal 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 f ccunsei cn 7:8 Previous appeal 2f 3:5 convictions and sentences, and i: snicn +e aryues cestity and <> >e called as a court's wicness: secause She Surry was cot scompleteiy apprised of ecause =ne ‘ury vas Selected irom a sample of secause =ne court erred in fBaliag 7S sever : fact a8 requcred sy statute and : wtitten fandiags 1:4 not sure ortson of sis 7ace tnear sentencing setermisations. Je argues anstruct she jury “Bat aggravating si:scumstances vere Tequ.sec eyond « reascnasle tne SRADGe F.70N in ints case. ve MOCO AS ca@ DUtSet sanction AR -ASTIISTION wnisn estab.csned nO effective Fescance for =ose STACUTOri.y encmeraced. Moreover, snlisce Selow 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 resen: evicence of Sic: 7atiag circumstances. This ‘aicure. appe.cant assercs. .4 cemonstrated sy a sroad sange of both statutory and SORSTATSTOFyY Ait. gating ciscumstances. The cr:al court order appealed ‘rom recizes chat ine Tecord shows provide resseonasiy effective ss8.stance :2 sounse. 88 .4 2omStitstisna.., Tecu.sed. APPOL.SRS 4546 SSATEONSS as:s co suppor: afficmance of Prejucssial pretrial susiic:cy: 3) The foi.cre f scequateliy argue 1ai counsel at csvoke ) 28 A26C SROWN cumstances: 3) The faicure appeal f an unoccupied Ssusiness estapi.snmerc eacn cefencant. There are =vo counts of ‘izst segree surser. ‘cur advisory sen- tance a8 avacins factsrs ‘sunc seyorns & reascr- AS.@ certain 7actsrs e conducted. TERLICN. 5., Concurs ** *®se° -1Za- AM Appeal fzcm 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 | «ct | ’ » ce 5 a | 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 TELEPHONE SWIFT REPORTERS, P.A. POST OFFICE BOX 412 385 6242 CSR, RPR, VTT SEBRING, FLORIDA ~24a- —— 24 25 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 TELEPHONE SWIFT REPORTERS. P.A. POST OFFICE BOX 412 305.6242 CSR, RPR, VTT : SEBRING, FLORIDA * -25a- 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. TELEPHONE SWIFT REPORTERS, P.A. POST OFFICE BOX 412 305 6242 CSR, RPR, VTT SEBRING, FLORIDA | bs —————————————— oil 24 25 -26a- 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 TELEFHONE SWIFT REPORTERS, P.A. POST OFFICE BOX 412 385 6242 CSR, RPR, VTT SEBRING, FLORIDA 24 25 -27a- 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 TELEPHONE SWIFT REPORTERS, P.A. POST OFFICE BOX 412 385 6242 CSR, RPR, VTT SEBRING, FLORIDA ue ¥ -28a- 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 TELEPHONE SWIFT REPORTERS, P.A. POST OFFICE Box 412 388 6242 CSR, RPR, VTT SEBRING, FLORIDA 4 -29a- 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 TELEPHONE SWIFT REPORTERS, P.A. POST OFFICE BOX 412 385 6242 CSR, RPR, VTT SEBRING, FLORIDA —I -30a— | a 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 TELEPHONE SWIFT REPORTERS, P.A. POST OFFICE BOX 412 308-6242 CSR, RPR, VTT SEBRING, FLORIDA -3la- 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 TELEPHONE SWIFT REPORTERS. P.A POST OFFICE BOX 412 385-6242 CSR, RPR, VTT SEBRING. FLORIDA -32a- tu | | 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. | TELEPHONE SWIFT REPORTERS, P.A POST OFFICE BOX 412. 365.6242 CSR, RPR, VTT SEBRING, FLORIDA -33a- Poe 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 TELEPHONE SWIFT REPORTERS. P.A POST OFFICE BOX 412 365.6242 CSR, RPR, VTT SEBRING, FLORIDA -34a- 1 2 | | 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 TELEPHONE SWIFT REPORTERS. P.A POST OFFICE BOX 412 385.6242 CSR, RPR, VTT SEBRING, FLORIDA -35a- 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 TELEPHONE SWIFT REPORTERS. P.A POST OFFICE BOx 412. 385-6242 CSR, RPR, VTT SEBRING, FLORIDA ‘ -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- 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 adult male supervision at any time in his - 16 = -67a- life; (9) his separation from his mother when he was approxi- mately two years old; (h) his upbringing in the home of his grandmother, where discipline was exceedingly lenient; (4) his regular church attendance in Lake Placid, Florida; (4) his participation as a musician at religious meetings and revivals; and (k) his reputation as a competent and diligent worker. 105, The failure to permit the jury to weigh any and all mitigating circumstances against the aggravating circumstances found to exist prejudiced defendant's cause, ir violation of the Eighth and Fourteenth Amendments, and his sentence of death is therefore invalic. B. THE FLORIDA SUPREME COURT'S CONCLUSION THAT TWO OF THE THREE AGGRAVATING CIRCUMSTANCES FOUND BY THIS COURT ARE NOT SUPPORTABLE RENDERS THE SENTENCE OF DEATH INVALIL 106. In sentencing defendant to death, this Court announced that it had found three aggravating circumstances. The Court said (Tr. 1445-1446): In particular do I find that this capitel felony was committed while the defendant was engaged or was in the commission of or the attempt to commit or flight after committing or attempting to commit the offense of robber More particularly do I find that the capital fe.onies were committed for pecuniary gain. I further find that the capital felonies were espe- cially heinous, atrocious or cruel. 107. In its written findings made 19 months after trial in response to the mandate of the Florida Supreme Court, the Court again listed three aggravating circumstances under Section 921.141(5), Florida Statutes. The Court said that the murders of the Kerseys were committed during the course of an armed robbery, that they were “especially heinous, atrocious, or cruel* (399 So. 246 at 960-961). The oe 09 « -68a- Court relied on subsections (5)(d), (S)(3), and (5) (nh) of Section 921.141, and it said that the other aggravating circumstances listed in the statute “are inapplicabie in this case” (399 So. 24 at 961). 106. On appeal, the Florida Supreme Court found that two of the three aggravating circumstances found by this Court are not supportable (399 So. 2d at 962-963). 109. First, relying on its earlier decision in Provence v. State, 337 So. 24 783, 766 (1976), cert. denied, 431 U.S. 969 (1977), the Supreme Court held that “(t)he robbery circumstance and the pecuniary motive” properly constitute only one asagravating circumstance, 10, Second, relying on its earlier decisions in State v. Dixon, 283 So. 24 1, 9 (1973), cert. denied, 416 U.S. 943 (1974), and Cooper v. State, 336 So. 24 1133 (1976), cert. denied, 431 U.S. 925 (1977), the Supreme Court ruled that “(t)he finding that the murders were especially heino.s, atrocious, and cruel cannot be sustained” (399 So. 2d at 962). 199. Accordingly, the Supreme Court concluded, as a matter of state law, that °'t!he trial judge erroneously considered certain circumstances as aggravating” and that there was only one valid aggravating circumstance (399 So. 24 eat 963). 12. Over the dissent of the Chief Justice, the Supreme Court affirmed the sentence of death on the ground that this Court's error “did not impair the process of weighing the aggravating against the mitigating circumstances because there were no mitigating circumstances to weigh" (399 So. 24 at 963). a) a 113. A death sentence imposed in part on the basis of erroneous aggravating circumstances cannot stand. Stephens vy. Zant, 631 F.2d 397 (Sth Cir. 1960), modified on petition for rehearing, 648 F.2d 446, cert. granted, No. 81-89 (Oct. S$, 19861). The Fifth Circuit explained its decision in Stephens in the following terms (id. at 406, as modified): It is impossible for a reviewing court to determine satisfactorily that the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance. The jury had the authority to return a life sentence even if it found statutory aggravating circumstances. It is possible that even if the jurors believed that the other aggravating circumstances were established, they would not have recommended the death penalty but for the decision that the offense was committed by one having & substantial history of serious assaultive criminal convictions, an invalid cround. The instruction on the invalid circumstance may have unduly directed the jury's attention to his prior convictions. It cannot be determined with the degree of certainty required in capital cases that the instruction did not make a critical difference in the jury's decision to impose the death penalty. 114, These principles are fully applicable to this case. If the jury had been instructed that *"it)he robbery circumstance and the pecuniary motive"® could together consti- tute only one aggravating circumstance and, further, thet the evidence at trial was insufficient as a matter of law to support a finding that the murders were “especially heinous, atrocious, or cruel,® the jury's advisory sentence might well have been different. If this Court had received a different recommendation from the jury or if the Court itself had realized that at most one aggravating circumstence was established by the evidence, its sentencing decision might well have been different. 115. Because a reviewing court cannot determine satisfactorily that the sentence was not decisively affected by the improper agoravating circumstances, the sentence of - 19 - -70a- death must be vacated and set aside. See, e.c., Strorberg v. California, 283 U.S. 359, 367-366 (1931); Bachellar v. Maryland, 397 U.S. 564, 570-571 (1970); Street v. New York, 394 U.S. 576, 565-588 (1969); Yates v. United States, 354 U.S. 298, 311-312 (1957). 116. The decision in Stephens was recently followed in a Florida case in which the State argued that presentation of evidence concerning an improper aggravating circumstance was harmless error where the record adequately supported a valid aggravating circumstance and where there were no mitigating circumstances. Henry v. Wainwriart, 661 F.2d $6 (Sth Cir. 1981). The court of appeals rejected the State's argument, because the court could not be certain what the result would have been if the improper aggravating circur- stances had not been considered. Citing Stephens, the court explained (661 F.2d at 59-60) (footnote omitted): Guarding against the arbitrary and discriminatory imposition of the death penalty must not become simply a guessing game played by a reviewing court in which it tries to discern whether the improper nonstatutory aagravating factors exerted a deci- sive influence on the sentence determination. The guarantee against cruel and unusual punishment demands more. 117. The Fifth Circuit's decisions in Stephens and Henry are controlling law in the new Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1961) (en barc). 118. Because this Court considered unsupported aggravating circumstances in imposing the death penalty, that aspect of defendant's sentence is invalid and should be set aside. -7la- Cc. THE FLORIDA SUPREME COURT INCORRECTLY CONCLUDED THAT THIS COURT DID NOT FIND DEFENDANT'S AGE TO BE A MITIGATING CIRCUMSTANCE 119. For purposes of this argument, we assume that Stephens and Henry do not control and that the Florida Supreme Court acted properly in attempting to evaluate defendant's death sentence on the basis of the one valid aggravating circumstance that it found supported by the record. Even so, the Court erred. 120. Both at the conclusion of trial and in its written findings 19 months later, this Court indicated that it regarded defendant's age as & mitigating circumstance. See Paragraphs 93 and 94 above. 121. Having concluded that only one aggravating circumstance was supported by the record, the Florida Supreme Court reasoned that it could still affirm defendant's deat? sentence if no mitigating circumstances had been established (399 So. 24 at 962-963). 122. The Florida Supreme Court reviewed the record and erroneously determined that this Court did not find defendant's age to be a mitigating circumstance. 123. The state Supreme Court misconstrued this Court's findings, without making any effort to have those findings clarified by this Court. 124. The Supreme Court's misconstruction of this Court's findings was critical to its affirmance of defendant's death sentence and deprived defendant of his right to due process under the Fourteenth Amendment. e St -72a- D. THIS COURT'S FAILURE TO OBSERVE THE STATUTORY REQUIREMENT THAT THE DFATH SENTENCE BE IMPOSED ONLY ON THE BASIS OF WRITTEN FINDINGS ENTERED AT THE CONCLUSION OF THE SENTENCING PROCEEDING DEPRIVED DEFENDANT OF DUE PROCESS 125, Section 921.141(3), Florida Statutes, provides in pertinent part: In each case in which the court imposes the death sentence, the determination of the court shall be Supported by specific written findings of fact based upon the circumstances in subsections (S$) and (6) and upon the records of the trial and the sentenc- ing proceedings. If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment in accordance with [Section] 775.082. 126, This Court sentenced defendant to death on September 30, 1975, but did not enter the “specific written findings of fact* reguired by Section 921.141(3). 127. Upon information and belief, the Florida Supreme Court, on February 23, 1977, sue Sponte remanded this case to this Court so that the Court could enter the written findings required Dy statute. 128, Upon information and belief, the Court entered its findings on April 22, 1977, nearly 19 months after the conclusion of trial. 129, The delay in the entry of this Court's find- ings defeated the purpose of the Statutory requirement of « written record of the sentencing court's reasoning prepared et the time of trial. The Gelay thereby hampered effective appellate review. 130. As discussed in Subpart C above, the Florida Supreme Court misinterpreted the finding of this Court on Gefendant's age as « Mitigating circumstance. At the very -73a- least, the delay in the entry of this Court's written finad- ings created a substantial risk of such misinterpretation. 131. This Court's departure from the statutorily prescribed procedure for imposition of the death penalt, Geprived defendant of due process and could not be cured by the subsequent entry of written findings nearly 19 months after trial. Although Section 921.141(3) does not specify a time period during which the sentencing court's written findings must be entered, the statute plainly does not contemp’ate such a substantial delay as occurred in this case. 132. Especially in capital cases, applicable procedural guarantees must be scrupulously observed. The governing Florida statute was not followed in this case, and defendant's sentence of death therefore cannot stand. E. THE FLORIDA SUPREME COURT ENGAGED IN AN IMPROPER EX PARTE CONSIDERATION OF MATERIALS OUTSIDE THE RECORD IN THE COURSE OF ITS REVIEW OF DEFENDANT'S CONVICTION AND SENTENCE 133. At the time defendant appealed his conviction and sentence to the Florida Supreme Court, that court was engaged in the regular practice of soliciting and receiving extra-record psychiatric, psychological, and other reports from state agencies concerning the mental condition and background of appellants under sentence of death. The practice was conducted in secret, without notice to the defendant or his lawyers, and without the sanction of any statutory authority or duly promulgated rule of procedure that might have notified the defendant or his lawyer even of the existence of the practice. See Affidavit of Mitchell Karlan in Brown v. Wainwright, attached as Exhibit B. Many - 23 - -74a- of the reports were later purged from the Court's files, making verification of individual instances of the practice difficult. On information and belief, the Florida Supreme Court requested and received such reports in defendant's case. See Item No. 84 and Item No. 8 in the two lists attached as Exhibit C. 134. The request and receipt by the Florida Supreme Court of undisclosed information in capital cases, as des- cribed above, violated, inter alia, defendant's rights under the Due Process Clause of the Fourteenth Amendment; the richt to counsel guaranteed by the Sixth and Fourteenth Amendments; the right to a reliable and non-arbitrary determination of sentence required by the Eighth and Fourteenth Amendments; the privilege against self-incrimination quaranteed by the Fifth and Fourteenth Amendments; the right to confrontation guaranteed by the Sixth and Fourteenth Amendments; and the Equal Protection Clause of the Fourteenth Amendment. 135. The practice described above violated Gardner v. Florida, 430 U.S. 349 (1977). In Gardner, the Supreme Court held unconstitutional a death sentence imposed after the trial court ordered and relied on a pre-sentence inves- tigation report, portions of which were not disclosed to the parties. The plurality emphasized that in capital cases, "the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause” (id. at 358). 136. Because the Supreme Court in this case appar- ently considered materials outside the record, defendant is entitled to the same relief afforded in Gardner. His sentence of death should be vacated. ta? Recognizing that the issue presented in this Subpart is currently being litigated in several other cases and that the issue has not been decided by a federal appel- late court, the Eleventh Circuit recently granted a stay of execution to another Florida inmate seeking post-conviction relief. Goode v. Wainwright, No. 82-5244 (Feb. 28, 1982), attached as Exhibit A. A stay should be granted in this case on the same reasoning outlined in Goode. Pr. IN SENTENCING DEFENDANT TO DEATH, THIS COURT IMPROPERLY RELIED ON INFORMATION OUTSIDE THE RECORD 138. In sentencing defendant to death, this Court stated that it had the benefit of the jury's recommendation and that it “also had the benefit of its own knowledge of the entire trial, not only of Sampson Armstrong but of Jeanette Armstrong” (Tr. 1445). 139. The Court made a virtually identical state- ment in explaining its imposition of the death penalty on co-defendant Enmund (Tr. 1448). 140. In its written findings entered 19 months after trial at the behest of the Florida Supreme Court, this Court explicitly relied in part on what it knew “from the trial of Jeanette Armstrong” (399 So. 24 at 961). 141. On June 20, 1977, after receiving this Court's written findings, the Florida Supreme Court directed this Court to state whether, in imposing sentence, it had relied on any materials outside the record. 142. On June 27, 1977, contrary to its earlier statements, this Court disclaimed reliance on anything but the testimony at defendant's trial and at the advisory penalty proceeding. e 33 - -76a- 143. Time constraints have precluded counsel] from thoroughly examining the transcript of the trial in Jeanette Armstrong's case. There is no question, however, that Jeanette Armstrong was convicted of second-degree murder and that her statement inculpating herself, her husband, and co-defendant Enmund was introduced into evidence at her trial. This statement was not introduced at defendant's later trial. 144. On the basis of this Court's own contempora- neous statements, there is little doubt that the death sentence imposed on defendant was based in part on materials outside the record of his case. 145. The reasoning of Gardner v. Florida, supra, therefore requires that defendant's death sentence be vacated. G. THE SENTENCING PROCEEDING IN THIS CASE DID NOT CONFORM TO THE REQUIREMENTS OF DUE PROCESS 146. The separate sentencing phase of the trial of Gefendant and co-defendant Enmund was started and finished in approximately one hour. It began at approximately 9:00 p.m. on September 30, 1975, immediately following the guilt phase of the trial. 147. This Court asked the jury whether it wished to proceed immediately to the penalty phase or whether it preferred to adjourn until the following morning. The jury, through its foreman, responded that it preferred to proceed immediately to the penalty phase (Tr. 1398-1400). 148. Counsel for defendant requested a pre-sentence investigation, but the Court proceeded immediately with the sentencing phase of trial (Tr. 1398). - 26 - -77a- 149, The entire sentencing proceeding for borh defendants is recorded in 52 pages of the trial transcript. 150. The taking of testimony, arguments of counsel, and instructions to the jury were completed in approximately half an hour. The jury deliberated for 31 minutes (Tr. 1438). 151, It is inconceivable that, with the deat! penalty at stake, the relevant aspects of the life and character of a single defendant could be adequately explored and presented to a jury in 30 minutes. Much less could the task be performed properly for two defendants within that time period. The outcome of the sentencing proceeding in this case was a foregone conclusion. The hour was late, and the jury was eager to finish its assignment. Defendant was Genied the opportunity to gather evidence and witnesses that would have enabled him to present a more complete and more accurate picture of his character and background. 152. The sentencing proceeding therefore violated the constitutional protection against cruel and unusual punishment in the Eighth and Fourteenth Amendments and the constitutional guarantees of due process and equal protection of the laws in the Fourteenth Amendment. H. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE SENTENCING PROCEEDING 153. Defendant's counsel presented only one witness at the sentencing proceeding, defendant's parole officer, Betty Fine. 154. Upon information and belief, counsel did not prepare any members of defendant's family to testify at the penalty phase. -78a- 155. Counsel presented no evidence of defendant's mental abilities, his poverty, his limited education, his illegitimacy, his separation from his parents when he was very young, his upbringing by his maternal grandmother, his work habits, his religious convictions or activities, his reasons for marrying Jeanette Armstrong, his current relation- ship with his family, or any of the other myriad factors that ought to be taken into account in any informed decision on the death penalty. 156. Counsel's failure to prepare such evidence and to present it at the penalty phase of trial denied Gefendant his right to the effective assistance of counsel under the Sixth and Fourteenth Amendments. I. IMPOSITION OF THE DEATH PENALTY AGAINST DEFENDANT IS ARBITRARY AND CAPRICIOUS ON THE FACTS OF THIS CASE 157. The physical evidence presented at trial tended to show that Jeanette Armstrong was present at the Kerseys' house on the morning of the shooting. No physical evidence tended to show that defendant was there. 158. The eyewitness testimony of Willie Lee and two other State witnesses, Mary Gibbs (Tr. 778-785) and Robert Davis (Tr. 788-798), tended to show that Earl. énmund and Ida Jean Shaw drove to the Kerseys' house on the morning of April 1, 1975. No eyewitness testimony tended to show that defendant was at the Kerseys' house on April 1, 1975, or at any other time. 159. Defendant was convicted primarily on the basis of the self-interested testimony of his mother-in-law and his own alleged confession io J. B. Neal, a passing acquaintance - 28 - -79a- of no more than a year's standing who admitted his interest in the $1,000 reward offered by the Hardee County Sheriff. 160. Jeanette Armstrong was convicted of second- degree murder and sentenced to imprisonment. She will be eligible for parole in the relatively near future. 161, Ida Jean Shaw is completely free. She was given immunity in exchange for her testimony. 162. Defendant has been sentenced to death. Yet even if the most damaging testimony against him is true, he did not shoot anyone until he saw his own wife shot. 163. There is no evidence that defendant planned the robbery of the Kerseys or that he even knew them. 164. For the two male defendants in this case to be sentenced to death while Jeanette Armstrong serves a term of imprisonment and her mother walks free is a denial of defendant's right to due process and equal protection of the laws under the Fourteenth Amendment. J. THIS COURT IMPROPERLY FAILED TO INSTRUCT THE JURY THAT IT COULD CONSIDER AGGRAVATING CIRCUMSTANCES ONLY IF PROVED BEYOND A REASONABLE DOUBT 165. The Due Process Clause requires that all elements of criminal offenses be proved beyond a reasonable doubt. 166, Under Florida law, the death sentence may be imposed only after a finding of one or more statutorily- prescribed aggravating circumstances. 167. Because, aS a practical matter, at least one aggravating circumstance is an element of every capital offense in Florida, proof beyond a reasonable doubt is - 29 - -80a- required before any aggravating circumstance may be consid- ered in support of the death penalty. 168. This Court failed to instruct the jury that aggravating circumstances must be proved beyond a reasonable doubt, and defendant's death sentence is therefore invalid. II. INVALIDITY OF THE CONVICTION IN THIS CASE A. THIS COURT INCORRECTLY REFUSED TO GRANT DEFENDANT'S MOTION FOR CHANGE OF VENUE 169. The Kersey shootings occurred in rural Hardee County, Florida, in which the population is predominantly white. 170. The shootings received substantial coverage in the local press, including grusome descriptions of the crime, references to the relationship between the alleaed participants, and detailed accounts of the evidence at Jeanette Armstrong's trial. 1716 In opposing bail before trial, the State Attorney relied on a law enforcement officer's remark that co-defendant Enmund's life "wouldn't be worth a plug ni kel” if he were released. Because of the joint indictment of defendant and Enmund, it is reasonable to believe that this remark also described the hostility to defendant in Hardee County. 1972. The Kerseys' were well-known in Hardee County, and their alleged assailants could not expect to get a fair trial there. 173. The jury's willingness to begin the sentenc- ing phase of the trial late at night and its incredibly brief deliberations on the sentencing recommendation tend to show that the outcome of the trial was foreordained, or at least skewed in advance. - 30 - -8la- 174, Defendant sought a change of venue before trial (R. 11-19, 316-318), and this Court denied the motion. T7B 6 Under all the circumstances, the denial of the change of venue resulted in an unfair trial that denied defendant the due process guaranteed by the Fourteenth Amendment. B. IDA JEAN SHAW SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY AS THE COURT'S WITNESS, SUBJECT TO UNLIMITED CROSS-EXAMINATION BY THE STATE 176. Ida Jean Shaw was an admitted liar who told a series of inconsistent stories before trial, each of ther designed to absolve herself of responsibility for the shoot- ing of the Kerseys. 177. Her pretrial statements, including statements under oath, were so unreliable that the State refused to call her as its own witness and, indeed, charged her with perjury. 178. By calling Shaw as the Court's own witness and questioning her directly at trial, the Court helped to legitimize her testimony in the eyes of the jury. 179. By permitting unlimited cross-examination of Shaw by the prosecutor, the Court unfairly permitted the State to have both the benefit of Shaw's testimony and the opportunity to ask leading questions about her inconsistent pretrial statements in an effort to make her story more plausible to the jury. 1860. The probative value of Ida Jear Shaw's self- interested testimony was not sufficiently great to outweigh its enormous unfair prejudicial effect on defendant. Admis-~- sion of the testimony under the Court's own imprimatur denied defendant a fair trial, in violation of his due process rights under the Fourteenth Amendment. = 31 © -82a- Cc. IDA JEAN SHAW SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY WHEN THE DISPOSITION OF PERJURY CHARGES AGAINST HER DEPENDED ON THE CONTENT OF HER TESTIMONY 161. When Ida Jean Shaw took the stand at defen- dant's trial, she had been granted immunity as to the events at the Kerseys' house on April 1, 1975, but she faced a perjury prosecution based on her allegedly false statements under oath in her pretrial deposition. 162. Shaw knew exactly what she had to say at defendant's trial in order to avoid a perjury prosecution. She had been promised that the prosecution would be dropped if she told "the truth" at trial, and she knew perfectly well that "the truth" did not mean one of her pretrial statements exculpating defendant. Rather, she was expected to exonerate herself and incriminate defendant by testifying that defen- dant and co-defendant Enmund returned to her house on the morning of April 1, 1975, with a wounded Jeanette Armstrong and that defendant subsequently made self-incriminating statements to her and distributed to her part of the proceeds of the alleged robbery. 183. Allowing Shaw to testify under these circum- stances deprived defendant of due process, because the threatened perjury prosecution made the probability of falsehood unacceptably great. D. THE PRECISE NATURE OF SHAW'S ARRANGEMENT WITH THE PROSECUTION SHOULD HAVE BEEN REVEALED TO THE JURY BUT WAS NOT 184, During her testimony at trial, Shaw first stated that [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1639%3A1. Public record. Not legal advice.