Petition — Booker v. Wainwright
Supreme Court brief1983
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RECEIVED
wo, 22-SA04 AUG - 8 1983
OFFICE OF THE CLERK
IN THE SUPREME CouRrrT. U.S.
SUPREME COURT OF THE UNITED STATES
October Term, 1982
STEPHEN TODD BOOKER,
Petitioner,
-Vv~-
LOUIE L. WAINWRIGHT, Secretary,
Plorida Department of Corrections,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT Of APPEALS
POR THE ELEVENTH CIRCUIT
STEPHEN N. BERNSTEIN, ESQ.
609 N.E. First Street
P.O. Box 1642
Gainesville, Florida 32602
(904) 373-9555
Counsel for Petitioner
QUESTIONS PRESENTED
1. May a capital defendant be cross-examined at the sentencing
phase of his trial concerning highly unreliable information regard-
ing his alleged prior bad acts when the information on which the
questions were based was obtained from the defendant involuntarily
by a psychiatrist examining him pursuant to a court order and, thus,
in violation of the fifth and fourteenth amendments?
2. Does the presentation of such highly unreliable information
regarding a capital defendant's alleged prior bad acts as an aggra-
vating factor by the prosecutor conflict with the reliability requir-
ed for capital sentencing by the eighth and fourteenth amendments?
3. Did the Eleventh Circuit err in upholding jury instructions
that a reasonable juror might well have understood to preclude
consideration of nonstatutory mitigating circumstances through:
(i) a disregard of Sandstrom v. Montana, 442 U.S. 510
(1979), thus creating a conflict with the Fifth Circuit's condemna-
tion of identical jury instructions in Washington v. Watkins, 655
P.2d 1346 (Sth Cir. 1981), cert. denied, 456 U.S. 949 (1982); and
(ii) a failure to recognize that instructional error
under Lockett v. Ohio, 438 U.S. 586 (1978), infects a capital
sentencing trial with prejudice sufficient to satisfy the require-
ments of Wainwright v. Sykes, 433 U.S. 72 (1977), and United States
v. Prady, 456 U.S. 152 (1982)?
4. Does the Florida Supreme Court's systematic, secret, ex
parte solicitation and consideration of extra-record, prison-genera-
ted psychological evaluations and similar materials of questionable
reliability concerning capital appellants in cases pending before it
for sentencing review violate the fifth, sixth, eighth, and four-
teenth amendments?
TABLE OF CONTENTS
Page
Questions Presented ..ccccccccccccccccccscccsccsesesessssesssseses A
Table Of COMCENES .ncccccccccccccccccsccesscesesssssesessssesseees Ab
Table Of Authorities .nccccccccccccccccccssccssccsesssssesseseseses AW
Citations to Opinions Below ....cecccccccsccesscsesessessscccssses§ I
JUTISGICCION .ncccecceveccceees Coccccccccccsesesecsessssesesesosesn§ |
Constitutional and Statutory Provisions Involved ....ccceeesvecces
Statement of the CaSe .nncccccccccccccscesesssesesessssssesssesssse
A. Course Of Prior ProceedingS ...cceeecesesnssseessseseseses
=- ny WN WNW
B. Pacts Relevant to the Questions Presented ....cecceseseses
(1) Petitioner's Challenge to the Use in Cross-examina-
tion at the Penalty Phase of Highly Unreliable
Information Obtained from him Involuntarily by the
Psychiatrist Examining him for Competency Pursuant
to a Court Order in Violation of the Fifth and
Pourteenth Amendments “eevee eeeeeeeeeeeeeeeeeeeeeeeeee 3
(2) Petitioner's Challenge to the Presentation of such
Highly Unreliable Information as an Aggravating
Pactor in Violation of the Eighth and Pourteenth
Amendments er ereereeeeeneeeeeeeeeeeeeeeeeeeeeeeeeeeee eee 7
(3) Petitioner's Challenge to Instructions That
Might Well Lead a Reasonable Juror to Conclude
that the Jury was Forbidden to Consider Relevant
Mitigating CircumstanceS9 ..cssccessceccesesscsssees 9
(4) Petitioner's Challenge to the Plorida Supreme
Court's Ex Parte Solicitation, Receipt, and
Consideration of Evaluative Materials Concerning
Capital Defendants Whose Appeals Were Before
the Court ere ereenenereeneneeneeneeeeeeeeeeeeeeeeeeeeeeeeeeee 10
Reasons for Granting the Writ eee ereeeeeeeeereeeeeeeeeeeeeeeeeeeeeee 11
I. Certiorari Should be Granted Because the Court of
Appeals Misapplied the Decisions of this Court when
It Upheld the Cross-examination of a Capital Defendant
at the Sentencing Phase Concerning his Alleged Prior Bad
Acts Based on Information that was Obtained from the
Defendant Involuntarily in Violation of the Fifth and
Pourteenth Amendments “ee ee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 11
e §4 «
A. The Use of Petitioner's Statements to Impeach Him
is Prohibited by New Jersey v. Portash and
Mincey Vv. Arizona ee eee eweeeeeeeeeeeeeeeeee eer ere er er erm erm hl em em ee 12
B. The Cross-examination that Occurred in this Case
is not Sanctioned by Harris cess esssescvcesessssssesesese I
II. The Court Should Grant the Writ to Determine Whether
the Present ion by a Prosecutor of a Capital
Defendant's Alleged Prior Bad Acts as an Aggravating
Circumstance Deprives the Capital Defendant of the
Reliable Sentencing Procedures Required by the Eighth
and Pourteenth Amendments ...cecscccscsersecsesccccssscsseses 16
III. The Court Should Grant Certiorari to Determine
Whether Instructions to the Jury at the Sentencing
Phase that a Reasonable Juror Might Well Have
Understood to Limit Him or Her to only the Statutory
Mitigating Pactors Violate the Eighth and Fourteenth
Amendments *eeeeeenrereee ee eneneeeeeeeeeeneereeeeeeeneeeere eee eee ee 19
IV. The Plorida Supreme Court's Secret, Ex Parte Solici-
tation, Receipt, and Consideration of Reports
from State Executive Agencies Concerning Capital
Litigants Whose Appeals Were then Pending for
Sentencing Review Present Vital Constitutional
Questions which Should be Resolved by this Court ....seeeeeee 20
Conclusion “eee eeeeeeeeeereeeeee nee eeeeeer ee eee eee ee eee ere er er erm erm erm mC CU CU CU Ue 21
- iii -
TABLE OF AUTHORITIES
Cases Page
Barclay v. Plorida, U.S. » 51
U.8.L.W. 5206 (July 6, 1983) ee eeeeneeeeneeeeeeeneeeeee 9, 16-20
Battie v. Estelle, 655 F.2d 695
(5th Cir. 1982) “ene eo eeeeeneeneeneeeeeeeneeeeneeeneeeneeeeeeeeeeeee#se 6
Blackburn v. Alabama, 361 U.S.
199 (1960) see eeeneneeneneneeeneeeneneeeteneeneteeneeneeneeneeeeneeeeeeee 13, 14
Booker v. State, 397 So.2d 910 (Pla.),
cert. denied, 454 - m 957 (1981) , ee eeeeeeneneneeneeneeeeeee 2, 21
Booker v. Wainwright, 675 F.2d i150
(llth Gse. 1982) eer eeeeeeeneeneneeneeneeeneneeeneeneeeeeeeeeeeeeeeee 2
Booker v. Wainwright, 703 P.2d 1251 (lith
Cir.), reh'g denied, 708 F.2d 734 (11th Cir. 1983) .... passim
Brown v. Wainwright, 392 So.2d 1327
(Pla.), cert. denied, 454 U.S. 1000 (1981) ee eee ee eee 2-3, 10
California v. Ramos, U.S.
51 U.S8.L.W. 5220 (July 6, 1983 seer erp eeeeeeeeeeeeneeeeeeeee 18, 21
Cooper ve State, 336 So.2d 1133 (Pla. 1976) see veeeeeeeeee 9, 19
County Court of Ulster County v. Allen,
442 U.S. 140 (1979) ee eeeeeeneneneeneneeneneeeneeeeneeeeeeeeeeee ee © 7
Elledge Vv. State, 346 U.S. 998 (Pla. 1977) eee eee eee eee ee eee 21
Estelle Vv. Smith, 451 U.S. 454 (1981) eee eee eee eee 6, 7, 11, 13
Pord v. Strickland, 696 F.2d 804
(llth Cale 1983) ne eeeeeneeneneeeneeneeeeneeneneeeneeeeeneeeeeee 10, 20
Gardner v. Plorida, 430 U.S. 349 (1977) wucececeeeeececvecses 21
Harris v. New York, 401 U.S. 222 (1971) wesseeeeeeee Ty 8, 11-15
Lockett v. Ohio, 438 U.S. 586 (1978) wwncsesevecevesee iy 9, 10,
Mincey v. Arizona, 437 U.S. 385 (1978) wsseeseeveeee 6, Ty 12-14
Miranda v. Arizona, 384 U.S. 436 (1956) wwseeeseesevee Ty Wy 12
New Jersey v. Portash, 440 U.S. 459 (1979) .... 6, 7, 11, 12, 14
Perry v. State, 395 S0O.2d 170 (Pla. 1981) wcsceseeeeveccvceeee 9
Proffitt v. Plorida, 428 U.S. 242 (1976) w.ccesceevecesscccess 20
Sandstrom Vv. Montana, 442 U.S. 510 (1979) *eeree ° eee ee eeeeee i
- iv-
Cases Page
State Vv. Dixon, 283 So.2d 1 (Pla. 1973) see ete eeeeeneeeeeeeeeee 19
Songer Vv. State, 322 So.2d 481 (Pla. 1975) *eneereeeeeeeeeeeeee 20
Songer v. State, 365 So.2d 696 (Pla. 1978) w.seeseeeseeee 10, 19
United States v. Beechum, 582 F.2d 898
(Sth car. 1978) “vee fr ee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eee 15-16
United States v. Prady, 456 U.S. 152 (1982) w.nccccccccccccsees i
United States v. Nobles, 422 U.S. 225 (1975) wwsceeesecceeseee 16
United States v. Havens, 446 U.S. 620 (1980) ...cceeeecceceeee 16
Wainwright v. Sykes, 433 U.S.72 (1977) wcccccccccccccsccces iy 6
Washington v. Watkins, 655 F.2d 1346 (Sth Cir.
1981), cert. denied, 456 U.S. 949 (1982) w.cccccecccecesess i
Woodson v. North Carolina, 428 U.S. 280 (1976) .w.cceccccccees 19
Zant v. Stephens, U.S. ’
51 U.S.L.W. 4891 (June 22, 1983) vee ee eee ee ree ee eee 8, 17, 18
Other Authorities
United States Constitution, Amends.
Vv, VI, VIII, & xIVv ene eeeeeneeenenreeneeeneneeeeeeeneeeeeeee passim
Section 921.141, Plorida Statutes Bf errr. TT eer
- ¥ =
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
rrtttttt titi ttt ttt ttt tt ttt ttt ttt ttt ttt
STEPHEN TODD BOOKER,
Petitioner,
age
LOUIE L. WAINWRIGHT, Secretary,
Plorida Department of Corrections,
Respondent.
PETITION POR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
POR THE ELEVENTH CIRCUIT
Petitioner, STEPHEN TODD BOOKER, prays that a writ of certi-
orari issue to review the judgment of the United States Court of
Appeals for the Eleventh Circuit filed April 25, 1983. Rehearing
was denied on June 6, 1983.
CITATIONS TO OPINIONS BELOW
The opinion of the court of appeals is reported at 703 F.2d
1251 (11th Cir. 1983), and is set out at pages la-lla of the
heii The order denying rehearing is noted at 708 F.2d
734 (11th Cir. 1983).
JURISDICTION
The judgment and opinion of the court of appeals were filed
on April 25, 1982, and petitioner's timely petition for rehearing
was denied on June 6, 1983. Jurisdiction of this Court is in-
voked under 28 U.S.C. § 1254(1).
*/ Citations to the Appendix accompanying this petition are desig-
nated _a. Citations to the record of the state trial are designa-
ted by R. _. Citations to the transcript of the sentencing proce-
eding before the judge are designated by S.P. _.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the fifth amendment to the Constitution
which provides in relevant part:
No person ... shall be compelled in any
criminal case to be a witness against
himself eee?
the sixth amendment to the Constitution which provides in
relevant part:
In all criminal prosecutions, the accused
shall enjoy the right ... to be confronted
with the witnesses against him... and to have
the assistance of counsel for his defense;
the eighth amendment to the Constitution which provides in
relevant part:
Excessive bail shall not be required,
nor excessive fines imposed, nor cruel
and unusual punishments inflicted;
and the fourteenth amendment to the Constitution which provides
in relevant part:
{[N)or shall any State deprive any
person of iife, liberty, or property,
without due process of law ....
It also involves Section 921.141, Florida Statutes (1973),
which is set out at pp. 12a-13a of the Appendix.
STATEMENT OF THE CASE
A. Course of Prior Proceedings
Petitioner was convicted of f.rst degree murder, sexual
battery, and burglary on June 19, 1978, and sentenced to die. His
conviction was affirmed. Booker v. State, 397 So.2d 910 (Fla.),
cert. denied, 454 U.S. 957 (1981). He joined the class of death
sentenced prisoners that unsuccessfully petitioned the Florida
Supreme Court for relief based on that court's consideration of
extra-record psychological material in affirming death sentences.
Brown v. Wainwright, 392 So.2d 1327 (Pla.), cert. denied, 454 U.S.
-3-«
1000 (1981).
Petitioner's execution was set for April 22, 1982. On April
13, he filed a writ of habeas corpus in the Northern District of
Florida. It was denied. The Eleventh Circuit granted a stay
pending appeal. Booker v. Wainwright, 675 F.2d 1150 (llth Cir.
1982). The panel cpinion on the merits rejected petitioner's
Claims. Booker v. Wainwright, 703 F.2d 1251 (llth Cir. 1983).
Rehearing was denied on June 6, 1983. Booker v. Wainwright, 708
P.2d 734 (11th Cir. 1983).
B. Pacts Relevant to the Questions Presented
(1) Petitioner's Challenge to the Use in Cross-examination at
the Penalty Phase of Highly Unreliable Information Obtain-
ed from him Involuntarily by the Psychiatrist Examining
him for Competen Pursuant to a Court Order in Violation
of the Fifte and Pourteenth Amendments:
Petitioner Stephen Todd Booker was convicted of the rape/
murder of a ninety-four year old woman. Booker has a history of
mental illness, psychiatric hogepitalization, alcoholism, and drug
abuse that goes back to age 13. He was first hospitalized at the
ages of 13 and 15 in New York. At nineteen, he was hospitalized
at Camp Codie Medical Center on Okinawa while he was in the
service. He was hospitalized at Camp Codie again the same year.
R. 586-87. He was a psychiatric patient at Walter Reed in Washing-
ton for two months in 1973, where he was diagnosed as suffering
from paranoid schizophrenia and organic brain. syndrome. Id.; R.
476-77. He was hospitalized twice more while in the service: at
Port Dix in both 1973 and 1974. After discharge, he was hospita-
lized again in New York. R. 586-87.
At the time of his arrest, petitioner “confessed” to the
interrogating officer, Detective Price. Price testified that
Booker only talked about himself in the third person after he had
been transformed into Aniel, “who he also described as a demon
° 3
R. 375. As the officer described it, the transformation would
begin with Booker working himself up into a frenzy. R. 377. His
eyes would become glassy. R. 376-77. As Aniel, “his teeth were
clenched tightly until they would crack.... I could hear them
crunch. He would whisper through his teeth, and I would have to
lean forward toward him in order to hear." R. 376. When the
officer questioned him about Aniel, “he would burst into tears
and cry. And he would laugh and wipe his tears away in a split
second. He would then settle back in the chair, face me again,
and be in a word, calm." R. 378.
Price also testified that when he spoke to him after the
"confession," Booker did not recall having told him about Aniel.
Price testified that Booker only remembered the crime when he
assumed the personality of Aniel, R. 380-81, and that Booker
seemed truthful and sincere both as Booker and as Aniel. R. 381.
Pinally, Price testified that he discovered that the name “Aniel*
was derived from the Latin for doddering old woman. Id.
Because of this “bizarre behavior" and Booker's attempted
i/
suicide, the Alachua County Circuit Court ordered that
1/ The suicide note, which was produced by the state in discovery
and made part of the record on appeal to the Florida Supreme Court,
began: “There is but one way to stop this raging inside me. I'm
an unwilling subject for some strange test or something...." It
contains several references to “this devil [which] is attempting to
come forth again and subdue me permanently and place me in the
extreme evident state of insanity," “the ranting beast that walks
inside me," “this demon," and the “invisible forces like the beast.”
Amended Answer to Demand for Discovery, Feb. 16, 1978. The note
also recounts that Booker “dreamed that the beast took me to the
very throne of the devil and we talked about all that I knew. I
did not mention it to the person in the cell with me, but he asked
me where I went that night fore [sic] he had climbed off the top
bunk the [sic] use the toilet and said I was not there.” Id. Booker
also wrote an unintelligible prayer on the wall of his cell and
drew four crosses in blood on the walls. Id.
Booker be hospitalized and examined by two psychiatrists to
determine his competency to stand trial and his sanity at the time
of the crime. The two psychiatrists were unable to reach a
conclusion regarding sanity. 703 F.2d at 1253. A third psychia-
trist was then appointed. He too was unable to reach a conclusion
regarding petitioner's sanity. R. 477-78, 482.
At the sentencing phase, Booker took the stand and described
his history of hospitalization for psychiatric illness. He
testified that he did not remember committing the crime he was
convicted of, but that he would feel remorse if he did. R. 584.
He also testified that he has had problems with memory lapses since
age 13 and that three of the eight hospitalizations were for that
reason. R. 587.
On cross-examination, the prosecutor inquired about alleged
acts of violence during the course of robberies of houses of
prostitution while Booker was in the service on Okinawa.
Q. Do you have problems with acts of violence while
you were in the service?
A. Yes. I did.
Q. Other than these for fighting, have you ever attempted
to kill people?
Q. While you were in Okinawa in the houses?
A. Could be?
Q. Do you know what I am talking about, Mr. Booker?
A. Yes.
Q. I'm talking about houses of prostitution. Did you ever
try to kill anybody over there?
A. Not necessarily. I used to -- we used to rob cat
houses.
Q. What weapons did you use to hit people with?
A. Claw hammer.
Q. How many people do you think you hit with the claw
hammer?
A. I can't recollect.
Q. More than five?
A. I would say about five.
Q. More than ten?
A. No.
R. 841-42. The prosecutor also inquired about the number of
Article 15 disciplinary actions and courts-martial Booker had.
Booker answered 11 and l, respectively. R. 590. A check of the
Army records by the probation officer who did the presentence
report, however, showed that Booker only had one Article 15 and no
military record concerning the alleged robberies and assaults on
Okinawa. S.P. at 24-25. Because this information only came out in
the presentence report before the judge, the jury that rendered the
advisory death sentence never knew of the unreliability of this
information.
The prosecutor also cross-examined Booker regarding his
recollection of his thoughts on the day of the murder. R. 844-45;
703 F.2d at 1258. The information that formed the basis of both
portions of the cross-examination was obtained from the psychia-
trist that examined Booker. R. 629-30; 703 F.2d at 1256-57. It
is not disputed that the psychiatrists who examined Booker did
not warn him regarding his rights as required by Estelle v. Smith,
451 U.S. 454 (1981).-
In the Eleventh Circuit, the state argued that any claim
concerning the violation of Booker's fifth amendment rights by the
use of this information was barred under Wainwright v. Sykes, 433
U.S. 72 (1977). The court of appeals held that it was not barred
because the issue was dealt with by the Plorida Supreme Court on the
mith was given retroactive effect in Battie v. Estelle, 655
P.2d 692 (5th Cir. 1982).
merits of the constitutional claim. 703 F.2d at 1255 (citing
County Court of Ulster County v. Allen, 442 U.S. 140, 154 (1979)).
Moreover, the trial record reveals that an objection was made. R.
629.
On the merits, the court of appeals accepted the factual
premises of Booker's claim. It accepted the fact that the
information that formed the basis of the two challenged portions
of the cross-examination of petitioner was obtained in violation
of the fifth amendment under Estelle v. Smith. 703 P.2d at
1258-59. Ande it accepted the fact that the introduction of the
sanity issue at trial did not waive petitioner's fifth amendment
rights with respect to the use of material subject to the privi-
lege at the sentencing phase to obtain his death. Nevertheless,
it held that the questioning of petitioner based on illegally
obtained information was permissible under the doctrine of Harris
v. New York, 401 U.S. 222 (1971), that prior inconsistent state-
ments obtained in violation of Miranda v. Arizona, 384 U.S. 436
(1966), could be used for impeachment. The panel went on to note
that the cross-examination did not rise to the level of a consti-
tutional violation but was, at most, objectionable as being
outside the scope of direct. 703 P.2d at 1258.
(2) Petitioner's Challenge to the Presentation of such Highly
Unreliable Information as an Aggravating Factor in Viola-
tion the Eighth and Pourteenth Amendments:
While this cross-examination was only allowed as proper impeach-
ment, there was no limiting instruction to the jury that it should
consider the testimony regarding the prior bad acts only on the
issue of credibility. The prosecutor, moreover, invited both the
jury and the trial judge to consider that testimony in imposing
sentence. He told the jury that: "First, mitigation can be that the
defendant has no significant history of prior criminal activity.
3/ Booker was denied a hearing in the federal district court.
= ee
That's not true in this case. You have heard the testimony.*
R. 611 (emphasis added). He reaffirmed that thought to the
sentencing judge. S.P. at 40. And he specifically suggested to
both the jury and the sentencing judge that the petitioner would
continue his violent ways unless finally “deterred” by the death
penalty. R. 605; S.P. at as.
The record suggests that the jury was affected by the testi-
mony of the alleged prior violent acts. Booker's lawyer argued it
to the trial judge, specifically noting the physical reaction of
many of the jurors when that testimony was adduced. S.P. at 24-25,
25-26. Even the prosecutor, whose personal speculation was that the
jury was just as impressed with other testimony, agreed that the
Okinawa testimony did tend to “show a background of bad character.*
Id. at 39-40.
In the Eleventh Circuit, petitioner argued that the presenta-
tion of the alleged prior acts of violence as an aggravating
circumstance introduced arbitrary and unreliable considerations
into the sentencing process because tnis information lacked the
reliability of evidence of prior convictions. The Eleventh Circuit
rejected this claim on two grounds. First, it noted that the jury
had been instructed to consider only the statutory aggravating
circumstances. The court refused to assume that the jury would
disregard those insructions. 703 F.2d at 1259. However, it did not
consider the prosecutor's express invitation to the jury to do
just that. Second, it found “no hint in the record” that the jury
4/ The prosecutor told the jury: "I know it [the death penalty) is
a deterrent from that killer ever killing again." R. 605. To the
judge, he argued “that rehabilitation for him is not a realistic
goal an he [the defendant) tells you that twenty-five years will
not help to change that realism that he will kill again.” S.P.
at 45. To the extent that such “realism" was the result of Booker's
mental illness, the prosecutor “attached the ‘aggravating’ label ...
to conduct that actually should militate in favor of a lesser
penalty...." Zant v. Stephens, U.S. _, 51 U.S.L.W. 4891, 4897
(June 22, 1983).
would have considered the alleged prior acts of violence as an
aggravating circumstance. Id.
(3) Petitioner's Challenge to Instructions That
Might Well Lead a Reasonable Juror to Conclude
That the Jury was Porbidden to Consider Relevant
Mitigating Circumstances.
This issue is substantially similar to the question presented
in the petition for a writ of certiorari in Ford v. Strickland,
No. 82-6923, filed in this Court on June 14, 1983. In this
case, the instructions to the jury at the penalty phase were
that:
The aggravating circumstances which you may consider
are limited to such of the following as may be estab-
lished by the evidence.... [The court listed the
statutory aggravating circumstances]
The mitigating circumstances you may consider if
established by the evidence are as follows.... [The
court listed the statutory mitigating circumstances]
R. 623, 625. Unlike Pord, however, there is nothing in this record
that suggests that the trial judge considered nonstatutory mitiga-
ting factors, that he understood they could be considered, or that
such an impression was conveyed to the jury.
There was no contemporaneous objection to these instructions.
In federal habeas, petitioner argued that he had not commited a
procedural default because the instructions were consistent with
Plorida law and federal constitutional doctrine as they existed at
that time. Under Cooper v. State, 336 So.2d 1133 (Pla. 1976),
Plorida law limited consideration to statutory mitigating circum-
stances. See Barclay v. Florida, U.S. ___, 51 U.S.L.W. 5206,
5212, n.3 (July 6, 1983)(Stevens, J., concurring); Perry v.
State, 395 So.2d 170, 174 (Pla. 1981) (in excluding nonstatutory
mitigating evidence under Cooper, trial judge “followed the law as
he believed it was being interpreted at the time of trial"). Peti-
tioner's trial was held before the decisions in Lockett v. Ohio,
438 U.S. 586 (1978), and Songer v. State, 365 So.2d 696 (Fla. 1978),
which Set the matter straight as a matter of both Plorida and
federal constitutional law.
The court of appeals rejected this claim based on the deci-
sion in Pord v. Strickland, 696 F.2d 804 (lith Cir. 1983)(en
(4) Petitioner's Challenge to the Florida Supreme
Court's Ex Parte Solicitation, Receipt, and
Consideration of Evaluative Materials Concerning
Capital Defendants Whose Appeals Were Before
the Court:
Since at least as early as 1975, the Supreme Court of Plorida
has, without the knowledge of the appellants or their counsel,
requested, received, and considered materials from prison offi-
cials relating to death-sentenced appellants in pending appeals.
The existence of this practice has never been disputed. It is clear
in this case that the Plorida Supreme Court reviewed at least one
document regarding Mr. Booker: a post-sentence, prison-generated
psychological report.
Mr. Booker was one of the petitioners in the original habeas
filed in the Plorida Supreme Court. Brown v. Wainwright, 392 So.
2d 1327 (Pla.), cert. denied, 454 U.S. 1000 (1981). The Eleventh
Circuit rejected Mr. Booker's Brown claim based on the decision
in Pord v. Strickland. Booker, 703 F.2d at 1260.
- 10 «-
REASONS FOR GRANTING THE WRIT
I. CERTIORARI SHOULD BE GRANTED BECAUSE THE COURT OP
APPEALS MISAPPLIED THE DECISIONS OF THIS COURT WHEN
IT UPHELD THE CROSS-EXAMINATION OF A CAPITAL DEPENDANT
AT THE SENTENCING PHASE CONCERNING HIS ALLEGED PRIOR
BAD ACTS BASED ON INFORMATION THAT WAS OBTAINED FROM
THE DEPENDANT INVOLUNTARILY IN VIOLATION OF THE FIFTH
AND POURTEENTH AMENDMENTS
This case presents important questions regarding the application
of this Court's decision in Estelle v. Smith, 451 U.S. 454 (1981),
holding that statements obtained from a capital defedant by a
court appointed psychiatrist cannot be used against him at the
penalty phase. It does so in a uniquely compelling factual context,
that of a chronically mentally ill defendant. The court below
held that such statements could be used for impeachment purposes
under Harris v. New York, 401 U.S. 222 (1971), on the theory that
they were only the fruit of a violation of Miranda v. Arizona, 384
U.S. 436 (1966). Moreover, it held that whatever harm was occasioned
by this cross-examination was not of constitutional dimension, but
was, at most, objectionable as beyond the scope of direct.
In concluding that this case was governed by Harris, the court
below erred in three critical ways. Pirst, statements obtained
during a court ordered psychiatric examination in the absence of
warnings and a voluntary waiver are not the result of a mere Miranda
violation; they are coerced, involuntary statements in the truest
sense. This is particularly true in the context of a mentally
debilitated defendant. As such, they cannot be used for impeach-
ment. New Jersey v. Portash, 440 U.S. 450 (1979). Second, because of
petitioner's debilitated mental state and the coercive nature of the
questioning, his inherently unreliable statements could not be used
for impeachment because they lacked the indicia of trustworthiness
relied on in Harris. Mincey v. Arizona, 437 U.S. 385 (1578). Pinally,
» 9 «-
the statements could not have been admissible as proper impeach-
ment under Harris if, as the court below held, they were beyond the
scope of the petitioner's direct testmony.
A. The Use of Petitioner's Statements to Impeach Him Is
Prohibited by New Jersey v. Portash and Mincey v. Arizona
?
In Harris, the Court held that statements made to the
police in the absence of Miranda warnings could be used for impeach-
ment, “provided of course that the trustworthiness of the evidence
satisfies legal standards.” 401 U.S. at 224. "In Harris ..., the
Court expressly noted that the defendant made ‘no claim that the
statements made to the police were coerced or involuntary.'*
Portash, 440 U.S. at 458 (quoting Harris, 401 U.S. at 224). This
case presents the question of the constitutionality of the use of
Statements that fail to meet either of the Harris caveats.
In Portash, the statements to be used for impeachment were first
made before a grand jury under subpoena and a grant of immunity.
The Court distinguished Harris, holding that:
The Fifth and the Pourteenth Amendments provide
that no person “shall be compelled in any criminal
case to be a witness against himself." As we re-
affirmed last Term, a defendant's compelled state-
ments, as opposed to statements taken in violation
of Miranda, may not be put to any testimonial use
whatever against him in a criminal trial. “But any
criminal trial use against the defendant of his
involuntary statement is a denial of due process of
law. *
Portash, 440 U.S. at 459 (quoting Mince), 437 U.S. at 398) (emphasis
in original).
In Portash, the Court barred the use of compelled statements
for impeachment even if they were reliable. 440 U.S. at 459 ("The
Pifth and Fourteenth Amendments provide a privilege against compel-
led self-incrimination, not merely against unreliable self-incrimi-
nation"). In Mincey, the Court decided the easier question: whether
@ 12 <«
statements that are truly involuntary and, thus, inherently unreli-
able may be used for impeachment. In Mincey, the Court held that a
defendant could not be impeached with his prior inconsistent
statements when they were obtained from him after Miranda warnings
but in the absence of a waiver while he was in a hospital bed in
critical condition. As noted above, the Court held that “any crimi-
nal trial use against a defendant of his involuntary statement is a
denial of due process...." 437 U.S. at 398 (emphasis in original).
It reversed the Arizona Supreme Court's holding that Mincey's
statement was admissible as impeachment under Harris. It noted that:
"Statements made by a defendant in circumstances violating Miranda
v. Arizona, supra, are admissible for impeachment if their ‘trust-
worthiness ... satisfies legal standards.'” Id. (quoting Harris, 401
U.S. at 224). Since, however, it found that "“Mincey's statements to
Detective Hust were not ‘"the product of a rational intellect and a
free will,”' ... his conviction cannot stand.” Id., 437 U.S. at
397-98 (quoting Blackburn v. Alabama, 361 U.S. 199, 208 (1960)).
Petitioner's statements in this case were compelled, involun-
tary, and unreliable. Thus, they were not admissible as impeachment
under Harris. Here, the statements that formed the basis of the
cross-examination were coerced in the truest sense, since the
petitioner was examined by the doctors pursuant to a court order.
This was recognized quite clearly in Estelle v. Smith itself.
There, the Court held that
when faced while in custody with a court-ordered
psychiatric inquiry, respondent's statements to
[the doctor] were not “given freely and voluntarily
without any compelling influences...."
451 U.S. at 469. The degree of compulsion is inescapably greater
here; Booker had a long history of mental illness and, thus,
was significantly less able to resist the compulsion of the
@ 93 «
court order and the intrusive inquisitiveness of a psychiatric
examination.
Petitioner Booker's statements fall in the same category
as Mincey's. Booker may not have been as “debilitated and helpless”
as Mincey was physically. But to place a person of Booker's chronic-
ally debilitated mental condition under court order to talk to a
psychiatrist and then say that his statements were “the product of
a rational intellect and a free will" is to deny reality. See
Blackburn v. Alabama, 361 U.S. 199, 207-208 (1960). As the Court
noted in Blackburn,
a most basic sense of justice is affronted by the
spectacle of incarcerating a human being upon the
basis of a statement he made while insane; and
this judgment can without difficulty be articulated
in terms of the unreliability of the confession,
the lack of rational choice of the accused, or
simply a strong conviction that our system of law
enforcement should not operate so as to take
advantage of a person in this fashion.
Id. That sense of justice should be revulsed if a human being were
to be sent to his death on that basis.
The record, moreover, provides adequate corroboration of
the unreliability of Booker's statements when given under coercive
or difficult conditions. Placed under oath and subjected to hostile
cross-examination, Booker “freely” admitted to fifteen Article 15's
while in the service. In fact, however, he had only one. Similarly,
when under court order, he told the psychiatrist of several violent
assaults while in Okinawa. But none is confirmed in his military
record.
In sum, the court below erred in applying Harris. Under
Mincey, the impeachment use of petitioner's involuntary and unreli-
able statements requires reversal. Even if petitioner's statements
are somehow not deemed unreliable, Portash requires reversal
- 14 «
because the use of petitioner's compelled statements violates the
plain terms of the fifth amendment.
B. The Cross-Examination that Occurred in this Case is
not Sanctioned by Harris
The court below held that the cross-examination did not
rise to the level of a constitutional violation, that the questions
relating to the alleged events on Okinawa were objectionable merely
as outside the scope of direct. But if that is so, then that
portion of the cross-examination cannot possibly be justified under
Harris.
The Harris doctrine rests on the premise that: "The
shield provided by Miranda cannot be perverted into a license to
use perjury by way of a defense, free from the risk of confrorta-
tion with prior inconsistent utterances." 401 U.S. at 226. But
that is not what occurred here. By conceding that the cross-exami-
nation relating to the alleged Okinawa incidents was outside the
scope of direct, the court below necessarily conceded that the
cross-examination was not used to impeach any attempted perjury.
Rather, it was used in a plain, old fashioned attempt to prejudice
the jury by impeachment relating to prior bad acts.
The court below simply missed the well established distinc-
tion that:
It is derogative of the search for truth to
allow a defendant to tell his story of innocence
without facing him with evidence impeaching that
story. A basic premise of our adversary system
of justice is that the truth is best obtained by
requiring a witness to explain contrary evidence
if he can. As we have seen, for this reason the
defendant who chooses to testify waives his fifth
amendment privilege with respect to relevant cross
examination. This is not to say that merely by
taking the stand a defendant opens himself to the
introduction of evidence that is relevant solely
to his propensity to commit bad acts or crimes.
United States v. Beechum, 582 F.2d 898, 909 (Sth Cir. 1978) (en
- 1§ -
4/
banc) (emphasis added). This is the clear purport of United
States v. Nobles, 422 U.S. 225, 240 (1975), that a witness only
waives the “privilege to resist cross-examination on matters rea-
sonably related to those brought out in direct examination." Id.
The privilege is only waived vis-a-vis “proper questioning,” United
States v. Havens, 446 U.S. 620, 627 (1980); the Harris rule can
only apply “to questions put to him on cross-examination that are
plainly within the scope of the defendant's direct examination."
Id. Since the defendant did not open the issue of his propensity
for violence on direct, the cross-examination had nothing to do
with truthfulness or the combating of perjury. It was, simply, the
prejudicial use of prior bad acts to attack the witness's credi-
bility. Not only does such cross-examination impermissibly trench
on the fifth amendment privilege, it also violates due process by
placing before the jury information regarding prior bad acts that
is not truly probative of the issues before it but is, nevertheless,
highly prejudicial. See discussion, infra, Point II.
II. THE COURT SHOULD GRANT THE WRIT TO DETERMINE WHETHER THE
PRESENTATION BY A PROSECUTOR OF A CAPITAL DEFENDANT'S
ALLEGED PRIOR BAD ACTS AS AN AGGRAVATING CIRCUMSTANCE DE-
PRIVES THE CAPITAL DEFENDANT OF THE RELIABLE SENTENCING
PROCEDURES REQUIRED BY THE EIGHTH AND FOURTEENTH AMENDMENTS
The court below held that the presentation of this unreliable
evidence did not create any harm of a constitutional dimension. But
allowing the prosecutor to adduce this evidence and then present it
as an aggravating factor did destroy the “procedures that are de-
signed to assure reliability in sentencing determinations." Barclay,
4/ In Beechum, the court held that the cross-examination was
proper because it related to matters that tended to show that the
defendant's testimony on direct that he had no intent to commit the
crime was not credible. Id.
@ 16 «
51 U.S.L.W. at 5211 (Stevens, J., convurring). In Barclay and Zant
v. Stephens, U.S. , 51 U.S.L.W. 4891 (June 22, 1983), the
Court upheid death sentences that were based on improper factors
that, nevertheless, “plausibly described aspects of the defendant's
background that were properly before the jury and whose accuracy
was unchallenged." Stephens, 51 U.S.L.W. at 4897-98; Barclay, 51
U.S.L.W. at 5210. Here, however, the improper factor placed before
the sentencer was improperly adduced and, in any case, substantially
unreliable.
As indicated above, petitioner's alleged prior bad acts were
either improperly adduced in violation of the fifth amendment
or, as the court below concluded, as cross-examination outside the
scope of direct. Thus, this case starts off on quite different
footing than either Barclay or Stephens. Moreover, unlike Barclay or
Stephens, the source of the information concerning the petitioner's
alleged prior acts of violence was not ordinarily reliable prior
convictions. Rather, the source was statements he made while under
psychiatric examination and possible mental illness; the unreliabi-
lity of these statements stems both from the involuntary nature of
the admissions and the unreliable nature of the source, the chroni-
cally mentally ill petitioner. Indeed, these statements about crimes
committed in the Army are not borne out by his service record; a
fact that the jury that rendered petitioner's death sentence never
knew.
The court below nevertheless concluded that petitioner was not
harmed because, in part, the jury had been instructed to consider
only statutory aggravating circumstances. This conclusion cannot stand
for three reasons.
First, as noted above, the prosecutor expressly invited both
the jury and the judge to consider these alleged prior acts of
» 7
violence as an aggravating factor. Second, the record supports the
the inference that they were affected by this information. S.P.
24-25, 25-26. Indeed, even the prosecutor admitted that, while
he thought the jury was more impressed with other evidence, this
matter did tend to weigh in aggravation. Id. at 39-40.
Third, the fact that the jury was told to consider only the
Statutory circumstances in aggravation in the weighing part of the
process does not diminish the harm that this unreliable evidence
created. The court below declined “to posit a per se rule" of harm
based on the introduction of such evidence which would "presume
that the jury did not follow the court's instructions...." 703 P.2d
at 1259. But in assuming that the jury is restricted to only the
Statutory factors -- either as a matter of law or practice, the
court below misconceived the dynamics of the sentencing process.
"Once the jury finds that the defendant falls within the legisla-
tively defined category of persons eligible for the death penalty,
++. the jury is then free to consider a myriad of factors to deter-
mine whether death is the appropriate punishment." California v.
Ramos, _—sS«U. SS. se, 51 ULS.L.W. 5220, 5225 (July 6, 1983). This is
Justice Stevens's “third stage" in the sentencing process. Barclay,
51 U.S.L.W. at 5212 n. 3. Given the open-ended nature of the
deliberative process, the presumption of no error indulged by the
court below, 703 F.2d at 1259, is particularly inappropriate.
Mindfull that “although not every imperfection in the deliber-
ative process is sufficient, even in a death case, to set aside a
state court judgment, the severity of the sentence mandates careful
scrutiny in the review of any colorable claim...," Stephens, 51
U.S.L.W. at 4897, petitioner respectfully submits that the Court
should grant the writ to determine whether the deliberate presenta-
tion of such unreliable evidence as an aggravating factor violates
- 18 -
the "need for reliability in the determination that death is the
appropriate that death punishment in" this case. Id. (quoting Woodson
v. North Carolina, 428 U.S. 280, 305 (1976)).
IIl. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER
INSTRUCTIONS TO THE JURY AT THE SENTENCING PHASE THAT A
REASONABLE JUROR MIGHT WELL HAVE UNDERSTOOD TO LIMIT HIM
OR HER TO ONLY THE STATUTORY MITIGATING FACTORS VIOLATE
THE EIGHTH AND FOURTEENTH AMENDMENTS
This question is substantially the same as that presented in
the petition for certiorari in Ford v. Strickland, No. 82-6923,
filed on June 14, 1983. Accordingly, petitioner will not burden the
Court with a repitition of the reasons for granting the writ.
Fetitioner respectfully requests the Court to review the arguments
set out in Ford in support of Booker's petition.
One additional point bears mentioning. In their concur-
ring opinion in Barclay, Justices Stevens and Powell seem to acknow-
ledge that prior to the Florida Supreme Court's opinion in Songer v.
State, 365 So.2d at 700, Florida law prohibited the consideration of
nonstatutory mitigating factors at the second third or any other
stage. 51 U.S.L.W. at 5212 (citing Cooper v. State, 336 So.2d at
1142). The plain language of Cooper confirms this, the post-Lockett
opinion in Songer notwithstanding. In Cooper, the Florida Supreme
Court affirmed the refusal of a proffer of nonstatutory mitigating
evidence on the following basis:
The sole issue in a sentencing hearing under Section
921.141, Plorida Statutes (1975), is to examine in
each case the itemized aggravating and mitigating cir-
cumstances. Evidence concerning other matters have [sic]
no place in that proceeding any more than purely specu-
lative matters calculated to influence a sentence through
emotional appeal. ... [T]he Legislature chose to list
the mitigating circumstanes which it judged to be reli-
able for determining the appropriateness of a2 death
penalty for "the most aggravated and unmitigated of seri-
ous crimes," and we are not free to expand the list.
Cooper, 336 So.2d at 1139 (quoting State Dixon, 283 So.2d 1, 7 (Fla.
1973)).
» 939 «
IV. THE FLORIDA SUPREME COURT'S SECRET, EX PARTE
SOLICITATION, RECEIPT, AND CONSIDERATION OF REPORTS
FROM STATE EXECUTIVE AGENCIES CONCERNING CAPITAL
LITIGANTS WHOSE APPEALS WERE THEN PENDING FOR
SENTENCING REVIEW PRESENT VITAL CONSTITUTIONAL
QUESTIONS WHICH SHOULD BE RESOLVED BY THIS COURT
Again, this question is the same as that presented in the
petition in Ford v. Strickland, No. 82-6923, and petitioner respect-
fully requests the Court to consider the reasons offered in support
of the granting of the writ in Pord as if fully set out herein.
It should be pointed out, however, that the recent opinions of
the Court in Barclay on the operation of the Florida statute bear
significantly on the Brown issue as presented in Ford and Booker. In
upholding the death sentence in Barclay despite the consideration of
improper factors, both the plurality and concurring opinions relied
on the role of the Florida Supreme Court in reviewing such sentences
as an important safeguard. The plurality canvassed the Plorida case
law and concluded that “the Florida Supreme Court does not apply its
harmless error rule in an automatic or mechanical fashion ... [but]
examine[s]) the balance struck by the trial judge...." 51 U.S.L.W. at
5211. The concurring opinion quoted this Court's understanding in
Proffitt v. Plorida, 428 U.S. 242 (1976), that "the evidence of
aggravating and mitigating circumstances is reviewed and reweighed
by the Plorida Supreme Court 'to determine independently whether the
imposition of the ultimate penalty is warranted.'" 51 U.S.L.W. at
5215 (quoting Proffitt, 428 U.S. at 253, and Songer v. State, 322
So.2d 481, 484 (1975)). But the conception of the role of the
Plorida Supreme Court in reviewing death sentences considered by the
Eleventh Circuit in Ford and the Plorida Supreme Court itself in
Brown in upholding the ex parte practice now under challenge is
diametrically opposed to the conception of that role held by
this Court, reached only after studying the Plorida case law.
- 2 «
Plainly, the receipt and consideration of sensitive, ex parte
reports by the Florida Supreme Court could have and would have had a
material impact on that court's role as a reweigher and reviewer of
death sentences. That is particularly true in a case such as this
where the defendant's mental state was relevant to two issues under
consideration by that court: the cross-examination issue and the
question whether there were any mitigating circumstances to be
considered as part of the harmless error analysis under Elledge v.
State, 346 So.2d 998, 1002-03 (Pla. 1977). Booker v. State, 397
So.2d at 913-14, 918. Equally plainly, it violated the Constitution.
"Because of the potential that the [re]sentencer might have rested
its decision in part on erroneous or inaccurate information that the
defendant had no opportunity to explain or deny, the need for
reliablity in capital sentencing dictate[s] that the death penalty
be reversed." Ramos, 51 U.S.L.W. at 5224 (describing Gardner v.
Florida, 430 U.S. 349 (1977)) (emphasis added).
CONCLUSION
Por the foregoing reasons, the petition for a writ of certiorari
should be granted.
Respectfully submitted,
STEPHEN N. BERNSTEIN, ESQ.
609 N.E. Pirst Street
P.O. Box 1642
Gainesville, Florida 32602
(904) 373-9555
Counsel for Petitioner
= 21 «=
RECEIVED
AUG - § 1983
OFFICE OF THE CLERK
SUPREME CourT. US
NO.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1982
STEPHEN TODD BOOKER,
Petitioner,
vs
LOUIE WAINWRIGHT,
Respondent.
MOTION TO PROCEED IN FORMA PAUPERIS
The Petitioner, STEVEN TODD BROOKER, by his undersigned
counsel, asks leave to file the attached Petition for Writ of
Certiorari to the United States Court of Appeals for the
Eleventh Circuit, without prepayment of costs and to proceed
in forma pauperis pursuant to Rule 46. Counsel has not yet
received an affidavit from the Petitioner, who is presently
incarcerated at the Florida State Penitentiary, Starke, Florida.
Mr. Brooker's affidavit in support of this motion will be
forwarded to the Court immediately upon receipt.
STEPHEN N. BERNSTEIN, ESQ.
609 NE First Street
Post Office Box 1642
Gainesville, Florida 32602
(904) 373-9555
Attorney for Petitioner
a. RECEIVED
O3- FIO
OF AUG 8 1983
NO. 82—5442__ OFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED 9T®}&me CouRrr. US.
October Term, 1982
STEPHEN TODD BOOKER,
Petitioner,
vs AFFIDAVIT
LOUIE WAINWRIGHT,
Respondent.
STATE OF FLORIDA:
COUNTY OF ALACHUA:
BEFORE ME, the undersigned authority, personally appeared
STEPHEN N. BERNSTEIN, who, being duly sworn upon oath states:
1. I am an attorney for Stephen Todd Booker, the Petitioner
in the above captioned action, and I make this affidavit in support
of Mr. Brooker's Motion for Leave to Proceed in Forma Pauperis.
My representation of Mr. Booker is without remuneration.
2. Mr. Booker is presently in the custody of the State of
Florida and is not immediately available to sign an in forma
pauperis affidavit. Such an affidavit has been sent to Mr. Booker
by me and will be forwarded to the Court immediately upon receipt.
A copy of the Affidavit to be signed by Mr. Booker is attached
hereto.
3. Counsel was appointed to represent Mr. Booker at his
trial and on appeal.
4. I am informed and believe that because of his poverty,
Mr. Booker is unable to pay the costs of this cause or to give
security for same.
5. I believe that Mr. Booker is entitled to redress
in this action.
1983.
/
STEPHEN N. BERNSTEIN
a
SWORN TO AND SUBSCRIBED before me this = “*-day of August,
\—F “st bse of Lit if—
Notary Public, State
of Florida at Large
My Commission Expires:
NOTARY PUBLIC STATE OF FLORIDA
MY COMMISSION EXPIRES AUG 11. 1988
BOWED THRU GENERAL INS. UNDERWRITERS
RECEIVED
S. AUG - 3 1983
IN THE OFFICE OF THE CLERK
SUPREME CouRT. U.S
SUPREME COURT OF THE UNITED STATES
October Term 1982
STEPHEN TODD BOOKER,
Petitioner,
Vv.
LOUIE L. WAINWRIGHT, Secretary
Plorida Department of
Corrections, :
Respondent. :
AFFIDAVIT IN SUPPORT OF REQUEST
_TO_ PROCEED IN FORMA PAUPERIS _
STATE OF FLORIDA )
) ss:
COUNTY OF BRADFORD )
I, Stephen Todd Booker, being duly sworn, depose and say
in support of my motion for leave to proceed without being
required to prepay fees or costs and to proceed in forma
pauperis:
1. I am the retitioner in the above noted action.
2. Because of my poverty I am unable to pay the costs
of said cause; I own no real or personal property; I am in-
carcerated and receive no income from earnings.
3. I am unable to give security for said cause.
4. Counsel is serving on my behalf without remu-
neration. At trial and on appeal, I was represented by
appointed counsel because I am indigent.
5. I believe I am entitled to redress.
6. The nature of said cause is briefly stated as
follows:
I was convicted in the Circuit Court of Alachua
County, a trial court of the State of Florida, of murder
and was sentenced to death. I am being held at the
Plorida State Prison at Starke, Florida. I believe that
errors were committed during the course of my trial
in violation of my constitutional rights and that my convic-
tion and death sentence were imposed upon me in violation of
my constitutional rights.
STEPHEN TODD BOOKER
STATE OF FLORIDA
COUNTY OF BRADFORD
The foregoing affidavit of Stephen Todd Booker was
subscribed and sworn before me this _— day of _ ,
1983.
da
BOOKER v. WAINWRIGHT
Stephen Todd BOOKER, Petitioner,
’.
Lovie L. WAINWRIGHT, Secretary, De-
partment of Offender Rehabilitation,
State of Florida, Respondent
No. 82-5468.
United States Court of Appeais,
Eleventh Circuit
April 25, 1983.
Petitioner appealed from an order of
the United States District Court for the
Northern District of Florida, Lynn C. Hig-
by, J., which denied his petution for habeas
corpus relief. The Court of Appeals, Fay,
Cireuit Judge, held that (1) where state
court did not make explicit whether it was
considering federal constitubona! provision
or its state constitutional counterpart, and
cited cases construing both, federa! habeas
court would view the state court as having
treated the issue as to whether petitioner's
privilege against self-incrimination was vic-
lated by prosecutor's use of information
derived from a psychiatric examinaton as
arising under both federal and state law
for Sykes purposes, and (2) in murder trial,
prosecutor's use of information derived
from a psychiatric examination of petition
er for purposes of impeaching his testimo-
ny during penalty phase did not violate his
constitutiona] nght against self-incrimina-
tion.
Affirmed.
1. Habeas Corpus 45.11)
When state courts do not indicate that
a federal constitutional claim is barred by
some state procedural rule, a federal court
implies no disrespect for state by entertain
ing the claim.
2. Habeas Corpus =45.3(1)
Where state court did not make explic-
it whether it was considering federal con
stitutional provision or its state consOtu-
tional counterpart, and cited cases constru-
ing both, federal habeas court would view
the state court as having treated the issue
as to whether petitioner's privilege against
self-incrimination was violated by prosecu-
tor’s use of information derived from a
psychiatric examination as arising under
both federal and state law for Svkes pur-
poses. US.C.A. ConstAmend. 5; West's
F.S.A. Const Art 1, § 9.
3. Witnesses 301
Neither accused’s mere submussion to
a psychiatric or psychological examinacon,
nor fact that his counsel may have request:
ed an examinatiou foreciosed his claim that
his constituvonal privilege against self-in-
crimination was violated by prosecutor's
use, in cross-examining accused, of infor-
maton allegedly gained from his psychiat-
ric examination. U.S.C.A. Const Amend. 5.
4. Witnesses = 300
In murder trial, prosecutor's use of
information derived from a psychiatric ex-
amination of accused for purposes of
impeaching his testimony during penalty
phase did not violate his consctutonal
right against self-incriminaton. US.CA.
Const Amend. 5.
5. Habeas Corpus =85.1(2)
Federal habeas court would presume
that jury in petitioner's murder trial fol-
lowed trial court’s instructions lsung the
aggravating circumstances and specifically
Synopee. Syileb sad Key Nember Ciassificauon
COPYRIGHT © 1983 by WEST PUBLISHING CO
The Synopem. Syllab and Key Number Clase
roteen ostute oe cart of the eqns of the overt
limiting jury's consideration to those cir
cumstances rather than invalidating impos+
tion of death penalty on basis that introduc
tion of evidence of petitioner's prior acts of
violence might have been interpreted as a
nonstatutory aggravating circumstance
upon which jury relied.
6. Habeas Corpus 85.58)
Petitioner failed to carry his burden of
establishing that trial court's instructions
to jury during advisory sentencing proceed-
ings improperly limited jury's consideration
of nonstatutory mitigating factors in decid-
ing whether to recommend life or death.
7. Criminal Law 11284)
Flonda Supreme Court's solicitation of
ex parte psychological material concerning
petitioner in reviewing his murder convie-
von was not unconstitutonal.
Appeal from the United States District
Court for the Northern District of Florida.
Before FAY and VANCE, Circuit
Judges, and ALLGOOD *, District Judge.
FAY, Cireuit Judge:
Stephen Todd Booker appeals the district
court’s denial of his petition for habeas
corpus challenging his sentence of death
imposed pursuant to Florida Statute Sec
tion 921.141 (1977). On appeal, Booker ad-
vances four contentions: 1) the prosecu-
* Honorable Clarence W. Allgood, US. District
Judge for the Northern District of Alabama,
sitting by designation.
1. The devective explained Booker during this
ure as follows
Prior to the time that he became Aniel he
would chant. And the chanting would go on
BOOKER v. WAINWRIGHT
wor’s use of information derived from a
psychiatric examination in cross examina-
tion of Booker during the penalty phase
violated his fifth amendment rights; 2) the
prosecutor's introduction of evidence cor
cerning Booker’s prior acts of violence per-
mitted the jury to consider a nonstatutory
aggravating circumstance; 3) the state trr
al court improperly limited the jury's con
sideration of nonstatutory mitigating fac
tors; and 4) the Florida Supreme Court's
solicitation of ex parte psychological mate
nal concerning Booker was unconsttuton-
al. After a careful consideration of Book-
er's claims on appeal, we affirm the denial
of the petition for habeas corpus.
I. FACTUAL BACKGROUND
Booker was convicted on June 19, 1978 in
the state court of first degree murder, sex-
ual battery and burglary based upon evr
dence which showed that Booker entered
the Gainesville, Florida apartment of Lo
mne DeMoss Harman, a ninety-four year
- 28a -
BOOKER v. WAINWRIGHT
the detective asked him if “Stephen had
done it,” and Booker replied, “He did it,
God damn it, he did it” There is no con-
tention that the confession was involuntary
and in fact, its substance was adduced dur-
After Booker was duly indicted by the
grand jury and a public defender appointed
to represent him, defense counsel filed a
motion for mental examination and notice
of defense of insanity. (State Record at 4).
A county judge granted the motion, com-
mitting Booker to an intake facility of the
Department of Health and Rehabilitative
Services to determine whether he was com-
ist
Hl
Ht
in
i
i
tt
tf
Booker’s sanity at the time of the offense.
(State Record at 32, 36). The state court
appointed Dr. Frank Carrera to examine
Booker. (State Record at 45). Dr. Carrera
testified during the defendant's case and
Dr. Barnard testified during the state's
rebuttal case.
The case was submitted to the jury after
three days of trial proceedings. The jury
deliberated for slightly in excess of three
hours and returned verdicts of guilty on all
three counts. The next day, the advisory
sentencing proceedings occurred? The
only evidence introduced by the state at
this time was a document relating to Book-
er’s prior conviction for robbery. The only
evidence’ introduced by the defense was
the testimony of Booker. Booker also
made a statement prior to counsel's argu-
ments on sentencing.‘ After hearing coun-
sel's arguments and receiving the trial
judge's instructions, a majority ' of the jur-
ors recommended the death sentence.
4 Booker, against the advice of his attorney,
made the following satement to the jury:
S. Unlike the verdict. the advisory sentence of
the jury need not be unanimous. Fla Siat. Sec-
tion 921.141(3) (1977). The jury considering
Booker's semtence voted nine to three to impose
- 3a -
2636
port, the psychological report of Dr. Eliza-
beth MacMahon, certain medical records, a
letter from Booker and the sentencing
memoranda of counsel, as well as the rec-
ommendation of the jury and the oral argu-
ments of counsel. The trial judge con-
sidered the statutory aggravating and poe-
sible mitigating factors and sentenced
Booker to death for the murder of Lorine
DeMoss Harman,‘ entering his written or-
der in accordance with Fla Stat Section
921.141(3) (1977). (State Record at 142).
See also, Booker v. State, 397 So.2d 910,
915-918 (Fla.1981).
Booker appealed to the Flonmda Supreme
Court which affirmed the conviction and
sentence. Booker v. State, 397 So.2d 910
(Fla.), cert. denied, 454 U.S. 957, 102 S.Ct
493, 70 LEd.2d 261 (1981). Booker also
joined 122 other death row inmates in peti-
tioning the Flonda Supreme Court for ex-
traordinary relief based on that court's pos-
sible consideration of extra-record psycho
logical material in affirming the sentences.
The Florida Supreme Court denied relief,
Brown v. Wainwnght, 392 So.2d 1327 (Fla.
1981), and the United States Supreme
Court denied ceruorari, Brown v. Wain-
wright, 454 US. 1000, 102 S.Ct S42, 70
L.Ed.2d 407 (1981).
On March 22, 1982, the Governor of Flor-
ida signed a death warrant authorizing
Booker’s execution by electrocution on
Apri} 21. On April 13, Booker filed a pet
tion for writ of habeas corpus in the dis-
trict court for the Northern District of
BOOKER +. WAINWRIGHT
Florida, alleging various grounds for relief
and including a prayer for stay of execu-
tion. The district court denied the stay
orally on April 15 and by a summary order
on April 19. (Record at 260). The distnct
court filed its order denying petition for
writ of habeas corpus on April 20. (Record
at 261). Booker filed a notice of appeal
and an application for certificate of proba-
ble cause and to proceed on appeal in for-
ma pauperis (Record at 260), as well as an
order denying Booker’s application for cer-
tificate of probable cause and to proceed on
appeal in forma pauperis (Record at 273).
In any event, appeal was taken to the Elev-
enth Circuit, which issued an order grant-
ing stay Booker v. Wainwnght, 675 F.2d
1150 (11th Cir.1982).’ We now consider the
merits of Booker’s claims on appeal.
Il. USE IN CROSS EXAMINATION OF
PSYCHIATRIC EXAM INFORMATION
A. The Procedural Bar
On this appeal, Booker claims that his
lated when the prosecutor ublized informa-
tion during cross examination of Booker’'s
tections mandated by Estelle v. Smith, 451
US. 454, 101 S.Ct 1866, 68 L.Ed2d 359
(1981), were not afforded Booker, his death
sentence must be vacated.
-_—_ ee ee
BOOKER v. WAINWRIGHT
The state, however, argues that we are
barred from ideri the merits of
Booker’s Estelle v. Smith claim in a habeas
proceeding pursuant to 28 U.S.C. Section
2254 by the doctrine of Wainwright r.
Sykes, 483 US. 72 97 S.Ct 297, 53
L.Ed.2d 594 (1977). In Sykes, the United
States Supreme Court held that a habeas
corpus petitioner must show “cause and
prejudice” in order to advance in federal
court those claims barred from considera-
tion in the state courts by a valid procedur-
al rule. The United States Supreme Court
recently reaffirmed the Sykes doctrine in
Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558,
71 LEd.2d 783 (1982), recognizing that the
costs of the federal writ of habeas corpus
“are particularly high when a trial default
has barred a prisoner from obtaining adju-
dicaton of his consttutional claim in the
state courts.” 456 U.S. at 128, 102 S.Ct at
1872.
The state argues that Booker’s counsel
did not adequately object at tmal. During
oral argument on this appeal, Booker’s
counsel, who has represented Booker
throughout the state and federal proceed-
ings, argued that the objection at tria] was
sufficent. Both parties also devoted con-
siderable attention in their respective briefs
to the “cause and prejudice” exception to
Sykes.
{1} One rationale for the Sykes doctrine
is the integrity of the state court trial.
“The failure of the federal habeas courts
generally to require compliance with a con-
temporaneous-objection rule tends to de
tract from the perception of the trial of a
cruminal case in state court as a decisive
and portentous event.” Sykes, 433 U.S. at
& We are bound by the precedent of the former
Fifth Circuit. Bonner v. City of Prichard, 661
90, 97 S.Ct at 2508. However, equally
important underpinnings of the Sykes doc
trine are considerations of comity and fed-
eralism. As recently stated in /saac, with-
out Sykes’ requirement that defense coun-
sel present constitutional claims during tr
al, the state appellate courts would not
have a “chance to mend their own fences
and avoid federal intrusion.” Jsaac, 456
US. at 129, 102 S.Ct at 1572
Considerations of comity and federalism
have resulted in the development of a well
settled exception to the procedural default
rule of Sykes: where a state appellate
court does not rely on a procedural default,
but reaches the merits of the federal law
claim, the Sykes bar is inapplicable. As
explained by the United States Supreme
Court, when the state courts do not indi
cate that a “federa! constitutional claim is
barred by some state procedural rule, a
federal court implies no disrespect for the
State by entertaining the claim.” County
Court of Ulster County v. Allen, 442 US.
140, 154, 99 S.Ct. 2213, 2223, 60 LEd2d
TTT (1979). The former Fifth Circuit recog-
nized this exception and applied it in ou-
merous cases.’ See e.g., Sassoon v. Styn-
chombe, 654 F.2d 371, 374 (Sth Cir.1981),
Moran v. Estelle, G7 F.2d 1140, 1142 (Sth
Cir.1979), Cannon v. State of Alabama, 558
F.2d 1211, 1216 n. 12 (Sth Cir.1977), cert
denied, 434 US. 1087, 98 S.Ct 1281, 55
L.Ed.2d 792 (1978).
(2) The state contends that Booker did
not adequately object at trial or present his
federal constitutional claim on appeal to
the Florida Supreme Court. The state fur
ther contends that no exception is applica-
F.2d 1206 (Lith Cir.1981).
ble because “it is clear from the Florida
Supreme Court's opinion that this issue
was treated as a question of state eviden-
uary law rather than a federa! constitution-
al question.” (Brief of Appellee at 20, n.
3). We do not agree.
The Florida Supreme Court described
Booker’s position on appeal thusly:
The defendant contends that during
the sentencing proceedings the court
commutted error in permitting the prose
cutor to ask questions based on informa-
ton gathered from court ordered psychi-
atme reports. The defendant argues that
this violated his nght against self-incrim-
mabvon.
397 So.2d at 913. The Flonda Supreme
Court also noted that:
The defendant recognizes that a court
ordered psychiatric examination general
ly not considered violative of defend-
ant’s mght to freedom from compeiled
self-incriminaton * and that psychiatrists
may render opinions concerning sanity
based on factual statements made by the
defendant
Id. Im both the above references to the
mght against self incriminanon, the nght is
referred to generally, without denominat-
ing whether it is specifically the nght em-
bodied in the Fifth Amendment to the Unit
ed States Constitution or Florida Constitu-
ton, Article 1, Section 9. Booker’s Initial
Brief to the Florida Supreme Court men-
tions both sources in/tially and then refers
to the right generally. In deciding the
dispositive issue, the Florida Supreme
Court concluded:
9. This was the sate of the law prior to Estelle v.
South, 451 US. 454, 101 S.C. 1866, 68 L.Ed 2d
399 (1981).
BOOKER +. WAINWRIGHT
A defendant who chooses two testify
waives his privilege against compulsory
self-incrimination with respect to the tes-
turmony he gives, and that waiver is no
less effective or complete because the
defendant may have been motivated to
take the witness stand in the first place
only by reason of the strength of the
lawful evidence adduced against him.
Harrison v. United States, 392 US. 219,
88 S.Ct 2008, 20 LEd.2d 1047 (1968).
397 So.2d at 914. By reiying on Harrison,
which did not concern Flonda’s privilege
against self-incrimination.'* the Flonda Su-
preme Court was apparently considering
both the state and federal constitutional
privileges against self-incrimination. We
therefore conciude that where a state court
does not make explicit whether it is con-
sidering the federal consututional provision
or its state constitutional counterpart, and
cites cases construing both, we will view
the state court as having treated the issue
as arising under both federal and state law
for Sykes purposes. To hoid otherwise
would be to sancton an imprecision in ju-
msprudence intolerable in the realm of con-
stututional issues and to foreclose federal
habeas review of federal claims because
the language used by the state courts was
vague.
Having decided that we are not barred
by the procedura! default doctrine of
Sykes, we proceed to consider Booker’s
claim concerning the use of the psychiatric
exam on the merits.
B. The Substantive Claim
Booker asserts that under Estelle v.
Smith, 451 US. 454, 101 S.Ct 1866, 68
1@ Harrison was convicted of murder in the
District of Columbia and the Court was constru-
ing the Fifth Amendment to the United States
Cousntuuon.
-_ . —
BOOKER v. WAINWRIGHT
L.Ed.2d 359 (1981), his constitutional privi-
lege against self-incriminstion was violated
by the prosecutor's use of information al
legedly gained from a psychiatric examina-
tion of Booker. In Smith, the United
States Supreme Court held that
when faced while in custody with a
court-ordered psychiatric inquiry, respon-
dent's statements to [the doctor) were
not ‘given freely and voluntarily without
any compelling influences’ and, as such,
could be used as the state did at the
penalty phase only if respondent had
been apprised of his rights and had
knowingly decided to waive them.
Td. at 469, 101 S.Ct at 1876. There is no
contention that Booker was given Miranda
or other suitable warnings before making
Statements to the psychiatrists who exam-
ined him.
{3} Neither Booker’s mere submission
to a psychiatric or psychological examina-
tion, nor the fact that the defense may
have requested an examination forecioses
his claim under Smith. Battie v. Estelle,
655 F.2d 692, 702 (Sth Cir.1981). In Bactie,
however, the former Fifth Circuit distin-
guished a situation where the government
used the results of a court-appointed psy-
chiatric examination only after the defense
had introduced psychiatric testimony in or-
der to raise a menta! defect defense, citing,
United States v. Cohen, 530 F.2d 43 (5th
Cir.) cert. denied, 429 U.S. 855, 97 S.Ct. 149,
50 LEd2d 130 (1976)."" Battie approved
Cohen's holding that “the introduction by
11. Writing five years prior to Estelle v. Smith,
the Fifth Circus in Coben stated
(whe have never reached the issue of whether
a defendant's privilege against seif-incrimna-
tion is violated per se by a court ordered
psychiatric examination solely to determine
the accused's mental condition at the time of
the commission of the offense. Several other
circuits have rejected this Y
the defense of psychiatric testimony const+-
tuted a waiver of the defendant's fifth
amendment privilege in the same manner
as would the defendant's election to testify
at tnal.” Batoe, 655 F.2d at 702
{4] In Booker’s case, the issue of insani-
ty was raised as a defense and a psychia-
trist testified on behalf of the defendant
Thus, under Bathe, there was a waiver of
defendant's fifth amendment privilege as
to psychiatric testimony. However, the
jury had already rejected Booker’s defense
of insanity by finding him guilty on all
three counts of the indictment and the use
of the psychiatric testimony occurred dur-
ing the subsequent penalty phase of the
trial We need not decide whether such a
waiver under Bathe during trial survives in
the separate penalty proceeding in a capital
case, since there is another determinative
factor in Booker’s situation.
Booker took the stand to testify during
the advisory sentencing proceedings of the
State trial In answer to his attorney's
specific inquiry as to whether he had a
recollection of the day of the crime, Booker
said he did not remember. Booker also
testified that he had been in various hospi-
tals, including Camp Codie Medical Center
on Okinawa and Walter Reed Medica] Cen-
ter in Washington, D.C. while he was in the
armed services. The following colloquy
then occurred between Booker and his at-
torney:
per-se argument on various grounds, while
one has indicated approval of it. Relying on
a balancing test. we choose to follow the for-
mer line of cases and permit compelled psy-
chiserie examinations when 2 defendant hee
legal aerate [footnotes omnit-
ted
$30 F.2d at 47.
Ja-
Q: Hove you had any difficulties during
this ume you were hospitalized from the
* me you were 13 unti] now with periods
of ume which you can’t remember’
A: Yes, sir. Three of these occasions of
hospitalization, that was the reason for
being in the hospital.
Q That you couldn't remember what
had happened to you?
A: Yes, sir.
(State Transcript at 838). On cross exami
mnauon, the prosecutor questioned Booker
about his military service:
Q: Do [sic] you have problems with acts
of violence while you were in the service’
A: Yes. I did
Q: Other than these for fighting, have
you ever attempted to kill peopie?
Q: While you were in Okinawa in the
houses’
A: Could be.
Q: Do you know what I am talking
about, Mr. Booker’
A: Yes.
Q: I'm talking about houses of prostitu-
tion. Did you ever try to kill anybody
over there?
A: Not necessarily. | used to—we used
to rob cat houses.
Q: ye ae diaeal elaladins
BOOKER +. WAINWRIGHT
(State Transcript at 841-42). Later, Book-
ers attorney objected to the prosecutor's
questions relating to the day of the crime.
The trial court overruled the objection on
the grounds that the question of lapse of
memory on the day of the incident was
opened by the defendant on direct. The
cross examination continued:
Q Mr. Booker, my question to you was
do you remember when you got up at
7:00 or 7:30 feeling that morning like you
wanted to kill somebody’
A: Part of the way, yes.
Q: Did you know Mrs. Harman prior to
this date?
A: No. I didn’t
Q: Had she ever done anything to you
in her life to deny you anything or pre
vent you from anything’
A: No. In regards to me knowing her,
I still don't know her. I have just been
confronted with her in this courtroom in
this charge.
Q: Did you attempt to kill anybody else
that day; do you remember that?
A: Sure, I remember.
Q: Do you remember you did?
A No. I didn’t try two kill anybody that
day.
Q: In the morning’
A: Right
Q@ You did not?
A: No. I didn’t
@ Did you think about doing it?
A Sometime I did, but I gave up the
information about the Okinawa houses of
prostitution and Booker’s state of mind
upon waking on the day of the crime
BOOKER +. WAINWRIGHT
through information given to a psychia-
trist'? without the constitutional safe
guards of Estelle v. Smith." Yet even
assuming Booker’s statements would not
have been admissible in the state's case,
there is no constitutional prohibition
against using the information for impeach-
ment purposes. Harris v. New York, 401
U.S. 222, 91 S.Ct. 643, 28 L.Ed 2d 1 (1971).
In Harris, the United States Supreme
Court reasoned:
Every criminal defendant is privileged to
testify in his own defense, or to refuse to
do so. But that privilege cannot be con-
strued to include the right to commit
perjury. (citations omitted) Having
voluntarily taken the stand, petitioner
was under an obligation to speak truth-
fully and accurately, and the prosecution
here did no more than utilize the tradi
tonal truthtesting devices of the adver-
Sary process. Had inconsistent state
ments been made by the accused to some
third person, it could hardly be contended
that the conflict could be laid before the
jury by way of cross examination and
impeachment.
12 The Florida Supreme Court found that “the
record does not conclusively show that the state
attorney secured this information from the psy-
chiatric reports.” 397 So2d a 914.
13. We have previously decided that Smith
| 1912, 64 LEd2d $59 (1980), (evidence
pressed as fruit of unlawful search and seizure
cerning events on Okinawa may have been
susceptible to an objection as being outside
the scope of direct examination,"* the cross
examination questions do not rise to the
level of a constitutional violation “ and re
lief in a federal habeas action is therefore
not warranted.
Ill. PRIOR ACTS OF VIOLENCE
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2642 BOOKER v. WAINWRIGHT
Booker during the advisory sentencing pro the jury's ‘consideration of nonstatutory
ceeding requires granting of the writ on mitigating factors. The state argues that
another basis. In Henry v. Wainwright, our consideration of this issue is barred by
661 F.2d 56 (Sth Cir.1981),'"" we held that it the procedural default doctrine of Wain-
‘$s constitutional error to allow a jury ina wright v. Sykes, 433 US. 72, 97S.Ct 2497,
capital case to consider nonstatutory ag- 53 LEd2d 594 (1977). Booker concedes
gravating factors in deciding whether the procedural default as to the jury instruc
death penalty should be imposed. Booker tions, but contends that he comes within
seeks to extend Henry to situations where the cause and prejudice exception to Sykes.
the jury is properly instructed to consider This issue is controlled by Ford v. Strick-
only statutory aggravating factors but evi gad, 696 F.2d 804 (11th Cir.1983) (en bane).
dence of a nonstatutory aggravating factor [n Ford, the trial judge similarty instructed
has been presented to the jury. the jury to consider only the enumerated
To adopt Booker's theory would be to *8STavating factors and, omitting the
presume that the jury did not follow the "fly," to consider the following mitigating
court’s instructions listing the aggravating #¢tors. Ford also conceded procedural de-
circumstances and specifically limiting the fault in Sykes. In Ford, we stated:
jury's consideration to those circumstances. The Sykes issue becomes blurred in
There is no hint in the record that the jury this case, however, because of two princi-
would have construed the Okinawa pies which mesh to deny Ford relief on
impeachment testimony as a nonstatutory “his point. First, the Supreme Court has
aggravating factor. We decline to posit a | eld that an erroneous jury instruction
per se rule to the effect that the introduc- satisfies Sykes’ prejudice prong only if
uon of any evidence that might possib/y be actual, not possible, prejudice is shown
interpreted as a nonstatutory aggravating so that there is ‘actual and substantial
curcumstance renders the imposition of the disadvantage, infecting his entire trial
iis eth En ke | ec ee en
een aS ad oe ¥. '
jury's » tre manage the wncesee Soe 102 S.Ct 1584, 1595, 71 LEd.2d 816, 832
utory aggravating factors. (1982).
SraTUonY aITCaTING pactons ‘Sates J cau me
give the words of the instruction in ques-
[6] Booker argues that the trial court’s tion. Sandstrom vy. Montana, 442 US.
instructions to the jury during the advisory 510, 514, 99 S.Ct 2450, 2454, 61 L.Ed 2d
sentencing proceedings improperly limited 39 (1979). The entire charge must be
17. This Unit B case decided November 12, 1981, that the issue was property before us and ad-
is binding precedent for the Eleventh Circuit. hered “lo our earlier judgment that the state
See, Stein v. Reynolds Securities, Inc, 667 F.2d trial court com.Aitied constitutional error by
33 (11th Cir.1982). Henry was vacated and re allowing the non-statutory aggravaung arcum-
manded to the Eleventh Circuit by the United stances to be placed before and conudered by
States Supreme Court, — US ——, 102 $.CL the jury at
2922, 73 LEd.2d 1326, for further consideration v. Wainwright, 686 F.2d 311, 315 (Sth Cir.1982)
om light of Engle v. Isaac. On remand, we found (Unit B). m
BOOKER v. WAINWRIGHT
examined as a whole to discern whether
the issues and law presented to the jury
were adequate. Davis v. McAllister, 631
F.2d 1256, 1260 (5th Cir.1980), cert de
nied, 452 US. 907, 101 S.Ct 3035, 69
L.Ed.2d 409 (1981). 3
The fundamental issue then is whether
Ford has carried his burden in establish-
ing that his jury perceived that in decid-
ing whether to recommend life or death,
it was denied the use of any nonstatutory
mitigating factors.
696 F.2d at 812. As in Ford, we conclude
that Booker has cot carried his burden in
establishing the jury perceived that in de
ciding to recommend life or death, it was
denied the use of any nonstatutory mitigat-
ing factors. Ford set forth four reasons
for this conclusion. Three of those reasons
are applicable to Booker’s case and bear
repeating:
[FJirst, the tral court read the statute
as written, setting forth the entire list of
Statutory mitigaung circumstances,
which statute omits the word ‘only.’ The
Supreme Court has recognized the Flori-
da statute does not limit a jury's consid-
eration of mitigating circumstances to
those listed in the statute. Proffitt v.
Florida, 428 US. [242] at 250 n. 8, 96
S.Ct. [2960] at 2965 n. 8 [49 L.Ed. 2d 913}.
ent from Washington v. Watkins, 655
F.2d 1346 (5th Cir.1981), cert. denied, —
US. ——, 102 S.Ct 2021, 72 LEd.2d 474
(1982), where the state trial judge con-
cluded the charge with these words:
lf you unanimously find from the testi
mony that one or more of the preced-
ing elements of mitigation exist{s},
then you must consider whether /t out-
weighs the aggravating circumstances
you previously found and you must
2643
return one of the following ver-
Id. at 1368 (emphasis added). Here the
jury was not confined to two ‘preceding
elements of mitigation, as in Wash-
ington.
Third, that petitioner was not limited in
the introduction of evidence which might
be considered mitigating and that the
jury arguments encompassed all] evidence
introduced in the case explains counsel's
perception that the jury was not denied
the use of any evidence in weighing sen-
tences. Thus had petitioner known of
Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct
2954, 57 L_Ed.2d 973], he would stil] have
no reason to object because the jury was
not in fact being limited to what it could
consider.
Id. at 812-13. As in Ford, the rational
conclusion is that the jury did not perceive
& restriction on the consideration of any
V. NONRECORD MATERIAL BEFORE
THE FLORIDA SUPREME COURT
{(7] The final issue raised by Booker
concerning the Florida Supreme Court's
consideration of nonrecord materia! is also
controlled by Ford v. Strickland, 696 F.2d
804 (llth Cir.1983) (en banc), where we
stated:
But even if members of the [Florida Su-
preme] court solicited the materia! with
the thought it should, would or might be
used in the review of capital sentences,
the decision of the Florida court that it
should not be so used, the statement that
it should not be so used, and the rejection
of the notion that it affected the judg-
- lla -
2644 ~ BOOKER v. WAINWRIGHT
ment of the reviewing judges of the ing this factual situation even weaker than
court ends the matter when addressed at Ford.
the constitutional! level.
Id. at 811. We note only that Booker’s VI. CONCLUSION
attorney was furnished with the Florida Based on the foregoing, the district
Supreme Court’s request of Booker’s pre court’s denial of the petition for wnt of
sentence investigation report, thus render- habeas corpus is AFFIRMED.
Adm Off -6 US Coces—Weat Publishing Company, Saint Paul. Mirn
- l2a -
921.141 Sentence of death or life imprisenment for capital felonies; fur-
ther proceedings to determine sentence © :
(!) Separate proceedings on issue of penalty—Upon conviction or adjudica-
tion of guilt of a defendant of a capita) felony, the court shal! conduct a sep-
arate sentencing proceeding to determine whether the defendant should be
sentenced to death or lite Imprisonment as authorized by « 775.082. The pro-
ceeding shall be conducted by the trial judge before the trial jury as soon us
practicable. If, through impossibility or inability, the trial jury is unable to
reconvene for a hearing on the issue of penalty, having determined the guilt
of the accused, the trial judge may summon a special juror or jurors as pro-
vided in chapter 918 to determine the issue of the imposition of the penalty.
If the trial jury has been waived, or if the defendant pleaded guilty, the sen-
tencing proceeding shall be conducted before a jury impaneled for that pur-
pose, unless waived by the defendant. In the proceeding, evidence may be
presented as to any matter that the court deems relevant to the nature of the
crime and the character of the defendant and shall include matters relating
to any of the aggravating or mitigating circumstances enumerated in subsec-
tions (5) and (6). Any such evidence which the court deems to have probative
value may be received, regardless of its admissibility under the exclusionary
rules of evidence, provided the defendant is accorded a fair opportunity to re-
bot any hearsay statements. However, this subsection shall not be construed
to authorize the introduction of any evidence secured in violation of the Con-
stitution of the United States or the Constitution of the State of Plorkia.
The state and the defendant or his counsel shall be permitted to present argu
ment for or against sentence of death.
2) Advisory sentence by the jury.—After hearing all the evidence, the
jury shall deliberate and render an advisory sentence to the court, based upon
the following matters:
(a) Whether sufficient aggravating circumstances exist as enumerated {n
subsection (5);
(b) Whether sufficient mitigating circumstances exist which outweigh Che
aggravating circumstances found to exist: and
(¢) Based on these considerations, whether the defendant should be sen-
tenced to !!fe imprisonment or death.
(3) Findings Im support of sentence of death.—Notwithstanding the recom-
mendation of a majority of the Jury, the court, after weighing the aggravating
and mitigating circumstanecs, shall enter a sentence of life iniprisontwent or
death, but !¢ the court imposes a sentence of death, it shall set forth in weit
ing Its findings upon which the sentence of death !s Dased as to the facts
(a) That sufficient aggravating circumstances exist as cnumertated fn
subsection (5), and
- l2a -
Pages misnumbered in original copy.
ot
. id (
. (0) That there are insufficient mitigating circumstances to outweigh the ag:
gravating circumstances. :
In each case in which the court imposes the death sentence, the determination
of the court shal! be supported by specific written findings of fact based
upoa the circumstances in subsections (5) amd (6) and upon the records of 3
the trial and the sentencing proceedings. If the court docs not make the
findings requiring the death sentence, the court shall impose sentence of }ife
imprisonment in accordance with s. 775.082.
(4) Review of judgment and sentenca.—The judement of conviction and
sentence of death shall be subject to automatic review by the Supreme Court
of Florida within sixty (00) days after certification by the sentencing court
of the entire record, unless the time is extended for an additional period not
to exceed thirty (30) days by the Supreme Court for gG00d cause shown. Such
review by the Supreme Court shal) have priority over all otber cases and
shall be heard in accordance with rules promulgated by the Supreme Court.
(5) Aggravating circumstances.—Aggravating circumstances shall be lim-
ited to the following:
(a) The capital felony was committed by a person under sentence of |m-
Prisunment.
(b) The defendant was previously convicted of another capital felony
or of a felony involving the use or threat of violence to the person.
(¢) The defendant knowingly created a great risk of death to many per-
sons
(d) The capital felony was committed while the defendant was engaged,
or was An accomplice, in the commission of, or an attempt to commit, or
flight after committing or attempting to commit, any robbery, rape, arson,
burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or
disebarging of a destructive device or bomb,
(e) The capita! felony was committed for the Durpose of avoiding or pre
venting a lawfu! arrest or effecting an escape from custody.
(f) The capital felony was committed for pecuniary gain.
(g) The capital felony was comunitted to disrupt or hinder the lawful
exercise of any governmental function or the enforcement of laws.
(h) The capital felony was especially beinous, atrocious, or cruel.
(1) The capital felony was a homicide and was committed in a cold. calev-
lated, and premeditated manner without any pretense of moral or legal! justi-
fication.
(G) Mitigating circumstances —Mitigating circumstances shall be the fol-
lowing:
(a) The defendant has no significant history of prior crimina) activity.
(>) The capital felony was committed while the defendant was under the
influence of extreme menta! or emotional! disturbance.
(ce) The victim was a participant in the defendant's conduct or conser 'ed
to the act. .
(d) The defendant was an accomplice in the capital felony committed by
another person and bis participation was relatively minor.
(¢) The defendant acted under extreme duress or under the substantial
domination of another person
(f) The capacity of the defendant to appreciate the criminality of his con-
duct or to conform his conduct to the requirements of law was substantially
impaired.
(g) The age of the defendant at the time of the crime.
Amended by Laws 1972, ¢. 72-724, § 9, eff. Dee. 8, 1972. Amended by Laws
1974, ¢. 74-79, § 1, eff. Oct 1, 1974: Laws 1077, ¢. 77-104, § 248, eff. Aug. 2,
1977; Laws 1977, ¢. 77174, § 1, eff. Aug. 2, 1977; Laws 1079, ¢. 79-252, § 1,
eff. July 3, 1979.
Lawes 1972, ¢. 72-724, 4 9, substantially expired provisions. See Reviser's
rewrote this section Note—i9??
Laws 1974, ¢ 74-379 | 1. added the Laws ‘977, © 77-174. a reviser’s hill.
third sentence to subsee. (1) amemied Wiis seetion to reflect lahguege
Laws i977, ¢. Ti-i0i « revtiser’s bill editorially lnserted by the division uf
corrected errors and duleted «vusviete or statutory revir'on and indeting
= Ss
Laws 1979, ¢. 79-353,. substituted in 4
the fi(\h sentence of subseec. (1) “to the
nature of the crime and the character of
the Jefemlant’’ for “to sentence’, deiet-
ed in sulwees, (27900) ard (5)(u) 7
enuneerated in eulewction (46), atul adidd-
we subbeec, (8)01)
Reviser's Note—1977;
Ceuntorimes imternal referenceg to eli-
terial reassigurent of suleechons cre-
ateu by «. 9, ch. 72-724, Laws of blorida.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.