Petition — Buford v. Wainwright

CASE NO. ) ALEXANDER

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ROBERT LEWIS BUFORD,

Petitioner,

vs.

LOUIE L. WAINWRIGHT,

Secretary, Department of Corrections,

State of Florida,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

DAVID E. WEISBERG

Fried, Frank, Harris, Shriver

& Jacobson

(A Partnership Which Includes

Professional Corporations)

One New York Plaza

New York, New York 10004

(212) 820-8018

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED FOR REVIEW

I

WHETHER EFFE@TIVE ASSISTANCE OF COUNSEL IS

DENIED WHEN, IN A CAPITAL CASE, JURY INSTRUC-

TIONS WHICH OFFEND DUE PROCESS AND CONSTITUTE

REVERSIBLE ERROR ARE NOT APPEALED.

Il

WHETHER DUE PROCESS IS VIOLATED WHEN, IN A

CAPITAL CASE, A STATE APPELLATE COURT ISSUES

TWO OPINIONS WHICH ARE PACIALLY CONTRADICTORY

AND ARE BOTH ADVERSE TO PETITIONER.

(i) a

pers Sp er

2 be

OP INION BELOW . * . el el . el * el

JURISDICTION ...+ +s © e ©

RELEVANT CONSTITUTIONAL CASE PROVISIONS

STATEMENT OF THE CASE ....+ +

REASONS FOR GRANTING THE WRIT .

CONCLUSION .. «© «© «© es © © © @

TABLE OF AUTHORITIES

CASES

Aldridge v. State,

351 SO.20 942 (Fla. 1977),

cert. denied, 439 U.S. 882 (1978)

Anders v. California,

386 Us 735 (1967) * >. > * >. >.

Bryant v. State,

rom So.2a 347 (Fla. 1982)

Buford v. State,

403 So.2d 943 (Fla. 1981),

cert. denied, 454 U.S. 1163 (1982)

cuter v. Sullivan,

4 1 PZ ) . . 7 .

Douglas v. California,

U.S. ) > .

Eaton v. Tulsa,

415 U.S. 697 (1974)

Enmund v. Florida,

50 U.S.L.W. 5087 (U.S. ee i

(No. 81-5321)

Gilbert v. Sowders,

646 F.2d 1146 (6th Cir. 1981).

Gre v. Georgia,

428 U.S. 153 11546) Oe ry ae

Griffin v. Illinois,

U. 7 . * . . . .

Jones v. Barnes,

U.S.L.W. 1 (U.S. July 5,

(WO. 61-1794) . . - « we we we @

Mathews v. pice asee

° e. ) . . . . . .

McMann v. Richardson,

(ii)

1982)

18-19

Patterson v. New York,

Proffitt v. Florida,

Reid v. Covert,

J > 57) > > >. > > J >. > >. o > * > * >

Rheuark v. Shaw,

626 F.2d 297 (5th Cir. 1980)

cert. denied sub nom., Rheuark v. Dallas County,

rT?

ft . > . . . . . . . . © . * ©

Sandstrom v. Montana,

U.S. "ee We es eer hee ke ee eo ee ee

Smith v. Bennett,

* > a 61) os >. J J ao * * > > > >. > >

State v. Dixon,

265 s0O.24 L (Fla. 1973),

cert. denied sub nom., Hunter v. Florida,

416 U.S. 943 (1974) ame ole a @ ed © 6. 660

State v. Pinder,

375 50.20 6360 (Fla. 1979) eae ae es Ae ee

United States v. Manning,

a ee me gt Pe) a oo ee

United States v. United States Gypsum Co.,

Soe Webe See (EOS) se sotstovesewe esses

In re Winship,

aye Mama wae. (2970) «kw tS 08

OTHER AUTHORITIES

CONSTITUTION AND STATUTES

U.S. CONST. amend. VI Go eS a Se Oo OO eee

o.8 Cot. sees. BEVae Bc dé wise 0 He

PLA. STAT. ANN. § 782.04(1) (a) (2) 3s ae oe

PLA. STAT. ANN. § 921.141 . + «© © © «© © « «

FLA. STAT. ANN. § 921.141(6)(d) ..

10

18

14

10

35

16

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ROBERT LEWIS BUFORD,

Petitioner,

vs.

LOUIE L. WAINWRIGHT, etc.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Petitioner, Robert Lewis Buford, respectfully prays

that a Writ oF Certiorari issue to review the judgment and

opinion of the Supreme Court of Florida in this cause, render-

ed on July 12, 1983.

OPINION BELOW

The opinion of the Supreme Court of Florida is not

yet reported. The full opinion is Appendix A to this petition.

JURISDICTION

The jurisdiction of the Court is invoked under 28

U.S.C. § 1257(3), to review the judgment and opinion of the

Supreme Court of Florida issued on March 17, 1983 and render-

ed on July 12, 1983 upon the denial of a timely petition for

rehearing.

RELEVANT CONSTITUTIONAL PROVISIONS

AMEND. VI, U.S. CONST.

{I]n all criminal prosecutions, the

accused shall enjoy the right... to

have the Assistance of Counsel for his

defen{[sje.

—eSSSooO————————————E————————EE—Ee cca

AMEND. XIV, § 1, U.S. CONST.

f"Jor shall any State deprive any person

of life, liberty, or property, without

due process of law; nor deny to any per-

son within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

Petitioner was convicted of first-degree murder in

the Circuit Court of the Tenth Judicial Circuit of Florida on

March 30, 1978. Despite the jury's recommendation that peti-

, tioner be sentenced to life imprisonment, the trial judge --

balancing two statutory mitigating factors against two statu-

tory aggravating factors -- on March 31, 1978 sentenced him

to death. An appeal was taken to the Supreme Court of Florida,

which, on July 23, 1981, affirmed the judgment of first-degree

murder and the death sentence entered thereon. Buford v. State,

403 So.2d 943 (Fla. 1981), cert. denied, 454 U.S. 1163 (1982).

(Appendix B.)

B petition for writ of habeas corpus was filed in

the Supreme Court of Florida on September 23, 1982, alleging

that petitioner had been denied effective assistance of coun-

sel on direct appeal due to the failure of his attorney to

raise meritorious legal issues in contravention of the Sixth,

Eighth, and Fourteenth Amendments. The petition was denied in

an opinion dated March 17, 1983. (Appendix A.) A timely pe-

tition for rehearing was filed. The petition for rehearing

was denied on July 12, 1983. (Appendix C.)

The petitioner was charged with first-degree murder,

sexual battery upon a child under 11 years of age, and burglary.

The victim, Toni Wright, was killed on November 6, 1977. Peti-

tioner was 19 years old at the time of the homicide. (Appendix

B at 947.) Petitioner had no significant history of prior cri-

minal activity. (Appendix » at 947.) Petitioner concededly was

present at the scene of the homicide and committed a sexual bat-

tery upon the victim before her death.

—— - ———

Defendant testified in his own Gefense at trial and

admitted the sexual battery, but denied killing the young girl.

(Appendix D* at 799-800.) He testified that another person --

Darrell Wilson, known in the neighborhood as “Fat Boy” -- also

had violated the victim and then, acting alone, lad killed her.

Petitioner further stated that he had struggled with Wilson in

an attempt to prevent Wilson fre~ killing the victim, but had

been unable to do so. (Appendix D at 797-800.) When asked why

he had initially stated to the police that he alone had killed

the girl, petitioner Buford answered that he had been trying to

protect his friend Wilson. (Appendix D at 801, 804.)

The trial judge instructed the jurors that they could

find petitioner Buford guilty cf first-degree murder if they

found either (a) that he had killed the victim from a premedi-

tated design to effect her death (Appendix D at 880), or (b)

that he had killed her, whether or not from a premeditated de-

sign, while engaged in the perpetration of a sexual battery

(Appendix D at 882), or (c) that the victim had been killed by

a person with whom defendant Buford had associated to commit

an unlawful act (Appendix D at 877-78).

In charging the jury, the trial court inciuded the

following instruction on “associates”:

When two or more persons combine together

to commit an unlawful act, each is criminally

responsible for the acts of his associates com-

mitted in the furtherance or prosecution ‘“of the

common design. If two or more persons combine

to do an unlawful act and in the prosecution

of the common object an unlawful homicide re-

sults, all are alike criminally responsible for

the probable consequences that may arise from

the perpetration of the unlawful act they set

out to accomplish. The immediate injury from

which death ensues is considered as proceeding

from all who are present aiding and abetting

the injury done, and the actual perpetrator is

considered as the agent of his associates. His

act is theirs as well as his own, and all are

equally guilty. (Appendix D at 877-78, emphasis

added. )

* Appendix D consists of pages from the transcript of petition-

er's trial.

ls ek i!

The foregoing was the only instruction relating to associates.

Counsel for defendant objected that the instruction, standing

alone, was not correct, and he requested that the jury be fur-

ther instructed that it would be necessary that “the State

show that as a principal that Mr. Buford have the conscious

intent that the crime [murder] be committed and that he say

a word and do an ac*: toward the commission or toward the in-

citement [of the crime]." (Appendix D at 1041.) The trial

court denied the request, and trial counsel's objection was

prcperly preserved for appeal. (Appendix A at 2.)

The instruction on associates clearly and unequivo-

cally implied, in the context of petitioner Buford's triézl

testimony in which he admitted that the sexual batteries had

been part of a common design, that the jury must conclusively

presume that Darrell Wilson's killing of Toni Wright was part

of a common design concurred in by both Wilson and petitioner

Buford. The instruction stated, inter alia, that "[{i]£& two or

more persons combine to do an unlawful act and in the prosecu-

tion of the common object an unlawful homicide results, all

are alike criminally responsible for the probable consequences

that may arise from the perpetration of the unlawful act they

set out to accomplish.” (Appendix D at 877-878, emphasis add-

ed.) The conclusive presumption was directly contrary to peti-

tioner's testimony that he had struggled with Wilson in an at-

tempt to prevent the killing. (Appendix D at 797-800.)

The jury returned general verdicts of guilt. It is

therefore impossible to determine wiuich theory or theories of

first-degree murder the jury adopted. At the sentencing phase,

the jury recommended sentences of life imprisonment for both

capital convictions. (Sexual battery upon a child under 11 years

of age was, at the time, a capital crime in Florida.; The trial

judge overrode both jury recommendations and imposed two sentences

of death.*

On direct appeal to the Florida Supreme Court, coun-

sel for the defendant-appellant inexplicabiy failed to raise

as error the trial court's refusal to supplement the charge on

associates. Counsel did argue, however, that the trial court

committed error in overriding the jury's recommendation of life

imprisonment, because, among other things, the trial court had

refused to consider "the possibility that [the defendant] was a

mere accomplice ... ." (Appendix B at 953.) Defendant-appel-

lant's argument was grounded upon FLA. STAT. ANN. § 921.141(6) (d),

which provides that, in determining whether or not a sentence of

death shall be imposed, it is a mitigating cirumstance that:

The defendant was an accomplice in the capital

felony committed by another person and his par-

ticipation was relatively minor.

The Florida Supreme Court rejected the defendant's

contention on the ground that, as a matter of law, the record

would not support a finding that defendant Buford was guilty of

first-degree murder as an accomplice. The Florida Supreme Court

stated:

If defendant's testimony were accepted as

creating a reasonable doubt, he should not be

found guilty of murder in the first degree for

his participation in the murder would not be

proved. Defendant said he was leaving the

scene, turned around when the victim screamed,

and saw Fat Boy drop a concrete block on her

head.

A convicted defendant cannot be "a little

bit guilty.” It is unreasonable for a jury to

say in one breath that a defendant's guilt has

been proved beyond a reasonable doubt and, in

the next breath, to say someone else may have

done it, so we recommend mercy.

* On direct appeal, the sentence of death for sexuai battery

was reduced to life imprisonment. The sentence of death

for first-degree murder -- which was grounded upon the trial

judge's balancing of two statutory mitigating factors against

two statutory aggravating factors -- was affirmed, with one

judge dissenting. See Appendix B.

a

Appendix B at 953 (emphasis added). Thus, the Supreme Court of

Florida has already ruled in this case that, if petitioner's

testimony regarding the killing of Toni Wright by Darrell Wilson

is accepted, then petitioner's behavior did not, under Plorida

law, amount to first-degree murder.

Moreover, the holding that petitioner's trial testimony

is not consistent with a conviction for first-degree murder is com-

pelled by clear and recent precedent of the Plorida Supreme Court.

In Bryant v. State, 412 So.2d 347 (Fla. 1982), defendant admitted

participating with an accomplice in a robbery, but tes ified that

the subsequent homicide was the independent act of the accomplice.

Just as in the case at bar, the trial judge refused to instruct

the jury that, if the homicide was the independent act of the ac-

complice, the defendant could not be liable for murder. The

Florida Supreme Court agreed with appellant and reversed and re-

manded for a new trial, holding:

Tjhe felony murder rule and the law of prin-

ciples combine to make a felon liable for th

acts of his co-felons. [Citations omitted.|]

But this liability is circumscribed by the ii-

mitation that the lethal act must be in fur-

therance or prosecution of the common design

or unlawful act the parties set out to acconm-

piish.

412 So.2d at 350 (emphasis added). Thus, the opinion on direct

appeal in this case was fully consistent with established prin-

ciples of Florida law which imply t, if petitioner Buford <iid

not utter a word or do an act to facilitate the homicide and did

not intend that anyone be killed, he could not be guilty of first-

degree murder.*

However, the instructions given to the jury on associ-

ates compelied the jury to presume conclusively that, if Buford

* Pederal law similarly requires that defendant be shown beyond

a reasonable doubt to be a knowing participant in the crime

of which he or she is convicted. See, e.g., United States v.

Manning, 618 F.2d 45 (8th Cir. 1980). Such a principle is of

particular importance in a capital case. See Enmund v. Florida,

50 U.S.L.W. 5087 (U.S. July 2, 1982) (No. 81-5321).

and Wilson had acted together in perpetrating sexual batteries on

the victim, then Buford must have concurred in a common design to

kill Toni Wright. This is precisely the presumption which the

requested instruction sought to negative. It follows that, under

the Florida Supreme Court's opinion on direct appeal in this case

and under its opinion in Bryant v. State, it was reversibie erro

for the trial judge to refuse the additional instruction requested

by petitioner's trial counsel. Moreover, regardless of the pro-

priety of the instruction under Florida law, because the instruc-

tion embodied a conclusive presumption which took from the jury

the task of determining whether or not petitioner had participat-

ed in any way in the killing of Toni Wright, the instruction vio-

lated petitioner's right to due process. It further follows that

petitioner's appellate counsel was not reasonably effective when

he failed to raise the instruction on associates as reversible

error.

It is equally apparent that the Florida Supreme Court's

opinion on direct appeal in this case (Appendix B) is, on its face,

inconsistent with its most recent opinion denying the petition for

a writ of habeas corpus (Appendix A). In the former opinion, the

court stated that if the trier of fact accepts petitioner's testi-

mony that the victim had been killed by Darrell Wilson and that

petitioner had tried to prevent the killing, then petitioner could

not properly be found guilty of first-degree murder under Florida

law. (Appendix B at 953.) In its most recent opinion, the same

court has held that, even if the trier of fact accepts petitioner's

testimony, petitioner could still be guilty of first-degree murder

under Florida law. These decisions are facially contradictory,

and each is adverse to petitioner. We submit that due process re-

guires, at a minimum, that the decisions rendered in the same

capital case not be contradictory on their face.

I

EFFECTIVE ASSISTANCE OF COUNSEL IS DENIED

WHEN, IN A CAPITAL CASE, JURY INSTRUCTIONS

WHICH OFFEND DUE PROCESS AND CONSTITUTE

REVERSIBLE ERROR ARE NOT APPEALED

Under the Constitution of the United States and the

laws of Florida, petitioner was guaranteed an automatic direct

appeal to the Supreme Court of Florida from the judgment and

sentence of death imposed by the trial court. See Proffitt v.

Florida, 428 U.S. 242, 253 (1976); State v. Dixon, 283 So.2d l,

10 (Pla. 1973); FLA. STAT. § 921.141 (1977). On direct appeal,

the Florida Supreme Court will consider, in addition to points

relating directly to the propriety of the imposition of the

death penalty, points relating directly to the “guilt” phase of

the trial, including points relating to the correctness of jury

instructions in that phase. See, e.g., Bryant v. State, 412

Sc.zZd 347 (Pla. 1982); Aldridge v. State, 351 So.2d 942 (Fla.

Petitioner, an indigent, was entitled to the assistance

of counsel on his guaranteed appeal. See, e.g., Anders v. Cali-

fornia, 386 U.S. 738 (1967); Douglas v. California, 372 U.S. 353

(1963); Smith v. Bennett, 365 U.S. 708 (1961); Griffin v. Illinois,

351 U.S. 12 (1956). This right to be represerted by counsel is,

at heart, the right to be represented by effective counsel. Cuyler

v. Sullivan, 446 U.S. 335 (1980); McMann v. Richardson, 397 U.S.

759 (1970%; Anders v. California, supra. Surely counsel cannot be

said to be “effective” if, on appeal, counsel fails to raise rever-

sible errors, properly preserved at trial, in jury instructions.

This is all the more true where the appeal is taken in a capital

case and the instructions have deprived defendant of rights grant-

ed by the federal constitution. *

* Tne Court's recent opinion in Jones v. Barnes, 51 U.S.L.W. 5151

(U.S. July 5, 1983) (No. 81-1794), holds that there is no con-

stitutional per se rule requiring defense counsel assignea

to prosecute an appeal from a criminal conviction to raise

every nonfrivolous issue requested by the defendant. The

(Footnote continued on next page)

~

Appellate counsel's failure to raise on appeal the

issue of the trial court's improper instructions on associates

clearly amounted to a substantial and serious deficiency which

deprived petitioner of effective assistance of counsel. First

of all, the instruction was objected to by trial counsel, and

the objection was properly preserved for appeal. (See Appendix

A at 2.) It was an especially serious deficiency for appellate

counsel not to challenge the instructions which had already

been challenged at trial, because the challenged instructions

deprived petitioner of his rights under the United States Consti-~

tution.

Under applicable standards of due precess embodied in

the Fourteenth Amendment, the trial court's instructions on as-

sociates in this case violated petitioner's constitutional rights.

A leading precedent here is the Court's decision in Sandstrom v.

Montana, 442 U.S. 510 (1979), which held, among other things, that

it was a violation of due process for a Montana court to instruct

the jury in such a way as to create a conclusive presumption that

an essential element of the crime had been proven when, in fact,

evidence nad been introduced that supported the coritrary inference.

See also, Morissette v. United States, 342 U.S. 246, 274 (1952)

("It follows that the trial court may not withdraw or prejudge the

issue [of defendants’ intenticn] by instruction that the law

raises a presumption of intent from an act.”); United States v.

United States Gypsum Co., 438 U.S. 422, 435 (1978) ("{A] defen-

dant's state of mind or intent is an element of a criminal anti-

trust offense which .. . cannot be taken from the trier of fact

through reliance on a legal presumption of wrongful intent from

proof of an effect on prices.”)

(Footnote continued from preceding page)

decision in Jones v. Barnes is of little relevance here, because

this is a capital case in which the issue not raised on appeal

was not cnly nonfrivolous, it was meritorious. Moreover, none

of the considerations of “winnowing out weaker arguments on ap-

peal and focusing on one central issue if possible” cited in

Jones v. Barnes (51 U.S.L.W. at 5153) are apposite here. Peti-

tioner’s appellate counsel filed a brief in the Florida Supreme

Court with eight (8) separate legal points, but failed to raise

the erroneous instruction on associates.

In Sandstrom v. Montana, supra, petitioner had been

convicted of deliberate homicide. Although petitioner admitted

the killing, he denied that it had been committed “purposely or

knowingly." The trial judge, over the objection of petitioner's

+rial counsel, instructed the jury that the law “‘presumes that

a person intends the ordinary consequences of his voluntary acts.'”"

442 U.S. at 513. After the Montana Supreme Court had affirmed th

Se4 ' ‘ in 4 Cat > . -

petitioner's conviction, tnis Court unanim iously reversed, stati ng:

The Supreme Court of Montana is, of course,

the final authority on the legal weight to be

given a presumption under Montana law, but it is

not the final authority on the interpretation

which a jury could have given the instruction.

First, a reasonable jury could well have in-

terpreted the presumption as “conclusive,” that

is, not technically as a presumption at all, but

rather as an irrebuttable direction by the court

to find intent once convinced of the facts trig-

gering the presumption. Alternatively, the jury

may have interpreted the instruction as a direc-

tion to find intent upon proof of the defendant's

voluntary acvions .. ., unless the defendant

proved the contrary ... -- thus effectively

hifting the burden of persuasion on the element

of intent.

442 U.S. at 516-517. The Court went on to hold that, under

either interpretation of the jury instructions, petitioner had

been deprived of the Due Process Clause protection "‘against

conviction except upon proof beyond a reasonable doupt of every

fact necessary to constitute the crime with which he is charged.'"

442 3.S. at 520, citing In re Winship, 397 U.S. 358, 364 (1970),

and Patterson v. New York, 432 U.S. 197, 210 (1977).

Under Florida law, a person is liable for the criminal

acts of other persons only if the unlawful act commit~ed by the

others is "in furtherance or prosecution of the common design or

unlawful act the parties set out to accomplish.” Bryant v. State,

412 So.2d at 350. But the instruction on associates given

at petitioner Buford's trial clearly compelled che jury to find

that, if Buford and his associate had acted together in one crime

(sexual battery), then there is a conclusive presumption that

Darrell Wilson's subsequent killing of Toni Wright was in further-

ance of some common design joined in by Robert Buford. It was

precisely this unconstitutional presumption that petitioner's

trial counsel sought to negative with the requested instruction.

The instruction on associates required that the jury conclusive-

ly presume that Robert Buford had in some way concurred in the

killing of Toni Wright. This presumption was contrary to pet---

tioner's testimony at trial and thus deprived petitioner of his

rights to due process.

Indeed, the trial court's instruction in the case at

bar was, for practical purposes, identical to the instruction

condemned by the Court in Sandstrom v. Montana. There, the jury

was instructed that the law "‘presumes

ordinary consequences of his voluntary

In the case at bar, the jury was instructed that those who asso-

together to commit a single criminal act "are alike crimi-

responsible for the probable consequences that may arise

from the perpetration of the unlawful act they set out to accom-

(Appendix D at 877-78.) Although worded differently,

both sets of instructions had the practical effect of taking from

the jury the issue of whether the defendant actually intended

that the crime be committed.

The Florida Supreme Court, in its opinion denying th

petition for a writ of habeas corpus, fails to address the fun-

damental issue of whether the instruction on associates was

proper. The opinion below states that petitioner's “testimony,

if believed by the jury would have been consistent with a felony-

murder theory of the case." (Appendix A at 3.) However, the

issue here is not whether petitioner's testimony is “consistent"

with a felony murder theory. The issue here is whether the trial

court's instructions on associates, taken together with the trial

court's refusal to instruct on “independent act,” amounted to an

unconstitutional conclusive presumption. That is, the presumption

that if Darrell Wilson and Robert Buford acted together in sexuai-

ly abusing the victim, then they must have been acting together

when Darrell Wilson subsequently killed the victim. For the rea-

a tn a le a el a 5 ses a Ps z 2% hae

sons already stated, we submit that the trial court’s instruc-

tions did indeed embody that (impermissible) conclusive presump-

tion.

Despite the Plorida Supreme Court's most recent opinion,

we respectfully submit that it is irrelevant whether or not peti-

tioner's trial testimony is “consistent” with a felony murder

theory. The trial judge instructed the jury on three theories of

first-degree murder: (a) kiiling from a premeditated design to

effect the victim's death; (b) killing, whether or not from a pre-

meditated design, while engaged in the perpetration of a sexual

vy; or (c) killing by a person with whom the defendant had

associated to commit an unlawful act. See page 3, above. Al-

though petitioner's testimony may be consistent with a felony mur-

der theory, it is also consistent with a theory of associates and,

under Sandstrom v. Montana, supra, the instruction on associates

4

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nstitutional conclusive presumption.

The Florida Supreme Court may not be permitted to guess

as to

z

hat theory or theories of guilt the jury adopted. As the

Court stated in Sandstrom v. Montana, 442 U.S. at 526:

But, more significantly, even if a jury

could have ignored the presumption and found

defendant guilty because he acted knowingly,

we cannot be certain that this is what they

did do. As the jury's verdict was a general

ene .. ., we have no way of knowing that

Sandstrom was not convicted on the basis of

the unconstitutional instruction. And “[i]t

has long been settled that when a case is sub-

mitted to the jury on alternative theories the

unconstitutionality of any of the theories re-

quires that the conviction be set aside. See,

e.g., Stromberg v. California, 283 U.S. 359

(1931)." Leary v. United States, 395 U.S., at

31-32. See Ulster County Court v. Allen, ante,

at 159-160, n 17, and at 175-176 (Powell, J.,

dissenting); Bachellar v. Maryland, 397 U.S.,

at 570-571; Carpenters v. United States, 330

U.S., at 408-409; Sollenbach v. United States,

326 U.S., at 611-614. (Emphasis added.)

Based on the evidence and the instructions in this case, for

all we know the <ury (a) believed that Darrell Wilson killed

Toni Wright, and (b) never considered (because not instructed

12

to do so by the judge) whether Wilson's killing of the girl was

his independent act, without the agreement cr assistance of pe-

titioner. Because the jury may have convicted on a charge which

required that they presume that petitioner concurred in Wiljson

crime, the FPlorida Supreme Court erred in denying the peti'/:ion

below.

The opinion below also states that the instructi

associates "related directly to petitioner's testimony at trial

- « « e” (Appendix A at 3.) This does not, however, demonstrate

or imply that the instruction passes muster under

Sstitutional standards. If, as we believe, th

bodies a conclusive presumption as to the

tial element of the crime, that defect is

that the instruction is “related” to trial testimony.

The Florida Supreme Court

Finally, the fact that an unlawful homicide

curred during the perpetration of the sexual

tery is sufficient to support a conviction

first-uegree murder without the necessity

proving petitioner's specific intent tl!

murder be effected. (Appendix A at

But, again, this statement assumes

murder theory in finding petitioner guilty of mu

the instructions included three distinct theories

murder and the jury returned a general verdict, it

for the Florida Supreme Court to know which theory

the jury accepted. It is, we respectfully submit,

an appellate court to base its decision on speculation

evidence a jury believed or did not believe. See Sandstrom

Montana, 442 U.S. at 526. Therefore, the assumption

jury adopted a felony murder theory does not cure the

* Yhe Plorida Supreme Court is here essentially quoting FLA. STAT.

ANN. § 782.04(1) (a) which codifies Florida's law of rele

der and, in reievant pact, defines first-degree murder as t)he

unlawful killing of a human being, . . . when committed by ‘

person engaged in the perpeéiration of ... any. . . sexual

DOTESTY. 4. 6.

tutional conclusive presumption embodied in the trial court's

instructions on essociates.

The Florida Supreme Court's most recent opinion in

this case states that an “alternative support” for the denial

of the petition is that under the indictment the state could

properly prosecute under both a theory of premeditation and a

theory of felony murder. (Appendix A at 3.) The opinion be-

low cites State v. Pinder, 375 So.2d 836 (Fla. 1979), and other

cases. These cases stand for the rule that "the state does not

have to charge felony murder in the indictment but may prose-

cute the charge of first-degree murder under a theory of felony

murder when the indictment charges premeditated murder." State

v. Pinder, 375 So.2d at 839.

We respectfully submit, however, that the issue here

not whether or not Florida could properly prosecute petition-

for felony murder, but whether or not the instructions on as-

sociates were fatally defective. Surely no court could construe

Pinder to stand for the proposition that the prosecution may pro-

ceed on a theory not articulated in the indictment and the trial

judge is alsc free to give incorrect instructions to the jury on

that second theory. What is at issue here is whether or not the

trial judge committed reversible error in refusing to instruct

that petitioner could not be liable for first-degree murder if

the killing was the independent act of Darrell Wilson. This is

different from the question whether it was proper to permit the

prosecution to introduce a theory of felony murder or a theory

of associates.

Finally, in its last attempt to defend the propriety

of its decision to deny petitioner's request for a writ of habeas

corpus based on ineffective assistance of appellate counsel, the

lorida Supreme Court asserts:

Since the record clearly presents evidence suf-

ficient to support a finding by the jury that

the killing was by premeditated design, the charge

complained of cannot be said to be harmful...

even if it were erroneous. (Appendix Aat 4.)

Again, this statement assumes that the appellate court may pro-

perly speculate as to which of several theories of first-degree

murder the jury actually adopted. This Court, in Sandstrom v.

This case was submitted to the jury on three theories of first-

degree murder, and one of the theories was unconstitutional be-

cause it embodied a conclusive presumption (contrary to testimony

at trial) as to the presence of cone essential element of the

me of first-degree murder. That there was evidence consistent

ee . . : . , : ‘ ¢ ade se

with other alternative theories does not cure the fatal defect

SAssnaA a . = +> . = Tle, = : *

found guilty of first-degree murder were fatally defective under

Plorida law and under the Due Process Clause of the United States

Constitution. The instructions were objected to at trial, and

the objection was properly preserved for appeal. Appellate coun-

sel raised eight separate legal points on direct appeal to the

Pl iA Cr Crt — +7 hal? oo } 11* < a

Florida Supreme Court, but failed to challenge the fatally defec

s+; 7 . + ta. Ses dD Der ard ; Tal, fai

tive jury instructions. We respectfully submit that such failure

- = ; 4 $¢ = an e - + . .

constituted ineffective assistance of counsel on appeal. Petition-

> was ° ; “—

er should not be required to pay with his liberty, and possibly his

II

DUE vROCESS IS VIOLATED WHEN, IN

A CAPITAL CASE, A STATE APPELLATE COURT

ISSUES TWO OPINIONS WHICH ARE FACIALLY

CONTRADICTORY AND ARE BOTH ADVERSE TO

PETITIONER

On the direct appeal of petitioner's sentence of death,

appellate counsel “ailed to challenge the defective instruction

On associates. As is demonstrated in Point I, this failure con-

stituted ineffective assistance of counsel on appeal. Appellate

counsel did challenge, however, the trial court's refusal to find

the statutory mitigating factor that "(t]he defendant was an ac-

complice in the capital felony committed by another person and

his participation was relatively minor." FLA. STAT. ANN. § 921.141

(6) (d). The Florida Supreme Court upheld the trial court's rejec-

ticn of that mitigating factor, because the petitioner's testimony

would not support a conviction of first-degree murder. That is,

the appellate court -- without examining the instruction on asso-

ciates, because not asked to do so by appellate counsel -- assumed

that the conviction for first-degree murder implied that the jury

had refused to believe petitioner's testimony. In its most recent

opinion, in response to petitioner's showing that the instruction

on associates implied that petitioner would be guilty of first-

degree murder even if the jury accepted his testimony, the Florida

Supreme Court has stated that petitioner's testimony would support

a conviction of first-degree murder.

Thus, the Florida Supreme Court has rendered two sepa-

rate decisions in petitioner's case. ‘the first one says that

petitioner cannot be guilty of first-degree murder if his testi-

mony is accepted; the second one says that petitioner can be

guilty of first-degree murder even if his testimony is accepted.

The only thread of consistency is that each decision is adverse

to petitioner. It is res;ectfully submitted that the rendition

of facially contradictory appellate decisions in a capital case,

each of which is adverse to petitioner, is a der‘al of due process.

16

This Court, in Mathews v. Eldridge, 424 U.S. 319

(1976), clearly set forth the factors to be considered in deter-

mining whether or not the requirements of due process have been

satisfied in a particular case.

[O]ur prior decisions indicate that identifica-

tion of the specific dictates of due process

generally requires consideration of three dis-

tinct factors: First, the private interest

that will be affected by the official action;

second, the risk of an erroneous deprivation

of such interest through the procedures used,

and the probable value, if any, of additional

or substitute procedural safeguards; and final-

ly, the Government's interest, including the

function involved and the fiscal and administra-

tive burdens that the additional or substitute

procedural requirement would entail.

at 334-35. All three factors, as applied to the case

argue in favor of the issuance of a writ of certiorari

First, Robert Buford's “private interest” which has

been affected by the facially contradictory opinions of the

Florida Supreme Court is his interest in his liberty and, in-

deed, his life. There can be no more compelling private inter-

est.

Secondly, the risk of an erroneous deprivation was,

under the circumstances, more than a mere "risk"; it was a cer-

tainty. No matter how high a court may be, it cannot overturn

the laws of logic. Where two opinions are contradictory, at

least one must be wrong. The Florida Supreme Court, which held

on direct appeal that petitioner could not be guilty of first-

degree murder if his testimony were believed, has issued

facially contradictory opinions, both of which are decided

against petitioner. Such a procedure necessarily, as a matter

of logic, irrationally and erroneously deprives petitioner of

his right to liberty and life.

Finally, the burdens imposed by the issuance of this

Court’: writ of certiorari could not be excessive. Granting

the writ in this case would not compel the conclusion that, when-

ever a State court makes an error, this Court will sit in review.

ES rR

Rather, this is the rare (one hopes unique) case in which the

State's hichest court issues, in a single case, two separate

3

ions which on their face contradict each other, and both

which are decided against a petitioner condemned to death.

This Court has emphasized that "death as a punishment

in its severity and irrevocability.” Gregg v. Georgia,

(1976) (Stewart, J., ¢ t Moreover,

it is the unvarying rule that, “[w]hen

stake, t! Court has been particularly

every safeguard is observed."

meet the

the Due Process an

held that a state appellate court had den

1 right to due process when it had sustained a

criminal contempt “by treating the

a charge not made.” There can be no doubt, then,

irrational, arbitrary or capricious behavior on the part of

appellate courts may properly be deemed to violate due process.

Also illustrative is Gilbert v. Sowders, 646 F.2d 1146

(6th Cir. 1981), where it was held that the Kentucky Supreme

Court's failure to grant petitioner's motion for reconsideration

of the dismissal of petitioner's appeal was so arbitrary and

capricious as to amount to a violation of due process. The issu-

a a a a

ance of the writ of habeas corpus was affirmed in Gilbert v.

Scwders, despite the fact that the petitioner was not under

a sentence of death. In the case at bar, where the ultimate

sanction has been imposed, the requirements of due process

are more demanding. Therefore, the Florida Supreme Court's

arbitrary and capricious behavior here should not go uncorrect-

ed.

CONCLUSION

Based upon the foregoing, petitioner respectfully

requests that the Court issue its Writ of Certiorari to review

the decision of the Supreme Court of Florida in this cause.

Dated: New York, New York

A st 30, 1983

Respectfully submitted,

DAVID E. WEISBERG

Fried, Frank, Harris, Shriver

& Jacobson

(A Partnership Which Includes

Professional Corporations)

One New York Plaza

New York, New York 10004

(212) 820-8018

ATTORNEY FOR PETITIONER

er Robert Lewis Buf

0

Court of the United

1983, I served one

Certiorari to the

by mailing said copy, in a

class postage

srenaiAa —

prepaid, to

Jr., Esq., Assistant A

804, Park

Ww

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}

j

Trammel

served have

States,

-

for petition-

ember of the Bar of the Supreme

eby certify that, on September 2,

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1313 Tampa Street, Suite

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sarties required to be

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JA iw’ & AC I oEAw

RECEIVED

AUG 31 1383

OFFICE OF THE ¢.

LER

TABPREME COURT us

CASE NO.

IN THE SUPREME COURT OF THE UNITED S$

—

OCTOBER TERM, 1983

ROBERT LEWIS BUFORD,

Petitioner, g be -5 35 q

vs.

LOUIE L. WAINWRIGHT,

Secretary, Department of Corrections,

State of Florida

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Pursuant to Rule 46.1 of the Rules of this Court,

motion is hereby made that petitioner be allowed to proceed

in forma pauperis. Petitioner's affidavit is attached to

this motion. Leave to proceed in forma pauperis was sought

and obtained in both courts below.

Dated: New York, New York

August 30, 1983

Fried, Frank, Harris, Ahriver

& Jacobson

(A Partnership Which Includes

Professional Corporations)

One New York Plaza

New York, New York 10004

(212) 820-8018

ATTORNEY FOR PETITIONER

IN THE

SUPREME COURT OF THE UNITED STATES

CASE NO,

ROBERT LEWIS BUFORD,

Petitioner,

vs.

LOUIE L. WAINWRIGHT, Secretary, g ) 5 IR

Department of Corrections,

State of Florida,

Respondent.

AVIT IN SUPPORT OF

R'S MOTION TO PROC =ED

i FORMA PAUPERIS

LEWIS BUFORD, being duly sworn, depose

the Petitioner in the above-styled case;

confined on Death Row at Florida State

sentence imposed after a conviction in

the Circuit Court for Polk County, Florida, for first-degree

murder; that I petitioned the Supreme Court of Florida for a

of habeas corpus based on ineffective assistance of

counsel on appeal; that I now wish to obtain review in this

he denial of the petition for a writ of habeas

that because of my poverty I am unable to pay the

fees and costs of this proceeding or to give security there-

for; that as an indigent defendant I was represented by the

Public Defender at trial and on appeal; that I am now rep-

resented by pro bono counsel; and that I believe I am entit-

led to redress and I am making this affidavit in good faith.

Bhuk Sb Eaihed

ROBERT LEWIS FORD

MAO

Sworn to before me this

3 day of May, 1983.

‘ee Public

ROTARY pup,

. Stare

iy , F hoe

Commons se Expe ‘ P|

2O0BERT uUZWIS 3UFURD, ?Yeticicner,

LOUIS L. WAINWRIGHT. Respondent.

fe nave ior consideration 1 peticion for wric of Aabeas

corpus Sy Robert Lewis 3uford whose conviction and sentence 3f

teath were afficmed Sy =<213 court ia Juford 7. jtate, 403 30.24

243 Pla. +1961 cert. denied, 454 J.3. 1163 1982). We have

Turisdiction. .: Vv, § 3(B) (9), Pla. Conse.

Peticioner contends 11.35 appel.ate -ounsel Sarled =3 Ssursue

substantively viable legal issue of che “Fr. sours's

Lmproper iastruction co che jury om “associates.” ?ecict.cner

further contends that =e failure <o >sresent

[ours om disect appeai of Ais death sentence

c@ing semied reasonacly effective assistance

const. amend. 7.

@e wil. address seticioner's <claiz sy

stancardas adopted Sy chis court ia “aight 7.

Pla. 1981). co determine whether counsei isr <ne /et.cicner

srovided reasonably effective assistance A “8 .Altia. ippeal.

dowever, setfore reaching <=ne merics of <his Deticicon ve

must ietermine vhether <r-ai counsel Lnitiasly sreservec <=16e

tasputed .ssue ‘sr apoeal sy sogectiag <o =ne <courss sl_ecged

eS =

1 Een

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nt)

vo

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wv

-EPTOPe@r .ASTIUCTLON OM Sriac

iO party Bay 286i5m as error srounds of

appeal che jiving sr <=ne {faiiure =5 jive an

LAStruction unless ce oblects <herets

setcre che jury retires =o consider .:s

fP@raice, stating distiactly che matt: © <5

4hicn ne sejects, and =he srsundsa sf Ais

25} @Ccticn. Wportunicy si - 38 ji7@n <3

TuUry, petitioner's crial counsel specifically requested chat she

WAStSUct.cnh which <ne@ <rial court intended =o give include

“Tequirements <hat <he state show chat 4s 3 priacipal <hat Mr.

Sufora lave <=he conscious intent “hat “he <rise (murder! se

sOmmicctedc and <=hat 2@ say + word cor ic an act toward <=he

*COM@M—ELSSicn oF sowarc che .ncictemenc ... (of =ne crime/.* The

S324. SOUFT senied =<ne “squested sodilisation and sdvised

counsel, “Okay, your oDjection cam se acted.” [a response =o

counsel's question, “Aad cverruled?,” =he court replied, “And

over zuled.*

@e@ fund <hat the <sial court’s alleged erroneous

WASTSUCTION <O “H@ l[Ury om principals and accessories as

properly oreserved ‘cr appeal. #@ 10w sroceed *o <he merits 32

3323 36ticion.

Petitioner contends chat appellate counsel affected an

LATUStTiCe UPON seticicmer when counsel ‘ailed <o raise =e

4.-e9e¢ erroneous jury instruction sm 1:3 initial apreal =o <nis

ES, WD M9.ating <o@ principies enunciated in Anisgnc 7.

state, 394 50.24 397 Pla. 1981).

Jecause we ‘ind <nat appeilate counsel srovided rTeasonaniy

affective assistance of counsel in <ne >risinal appeal,

petictis ~3 20t enticled =o 4 Selated appeal and <herefore <ne

p@ti=.5n sust se ianied.

2&4 sRargiag <Be jury, she =rial sourt included <=he

sslicwiag -astructicon on sriacigals and associates:

when <#O scF Tore sersons <cmbine socether <>

SOM@MBL= aM uNiawful act, aach .3 <criminaily

responsible for =he acts of 113 associates <ommi<ced

furtnerance or srosecuticn of <ne <common <cesign.

If two or more sersons combine =o ico an unlawful act,

and in “Re >rosecution 2f <=ne common 25 ect 4n

aniawtul somicide rcesults. sli are alixe criminally

responsible for <=ne srobanple <onsequences <=nat “ay

arise from che >serpetration 2f <=ne wilawful ict <ney

set 2ut =O accompl.anm. The .smediate .ajury <som

snicn ieath ansues .3 <sonsicered 3s oroceeding ‘rca

all who are sresent aiding and acetting “<ne -Ajury sone.

and che ictual serpetracsr .s considered 1s <=ne agent 3f

Als associates. dZis act .3 “<neirs as ~@il 48 113 own

ana all are aqually juilsy.

Petitioner testified at crial. dis sestimony 7ecessi-acec

—ne somtested <narse >,eing given secause peticioner claimec <=14¢

a person named “Pat joy” Sad participated in che pricr sexual

satctery and shat te, and tot setiticner, tad actually “<i:l.ed se

rictam. This ceatimony, .2 selieved sy =he jury sould Aave seen

consistent wich a telony—@urder =neory 2f =e <ase. <contrary <0

setiticner's +8sarcions, 2asecd on evidence sresented, =2@ (ury

sould Aave still convicted him of ficsct-degree surder. Yal-35y -.

State, 382 S$o.2d 1190 :Pla. 1979). Tee .aseruction reiated

inrectly to petitioner's sestisony at <rial, chus satistying <Ae

requirement chat only instructions which Nave support ia =e

7A

record snmould Se given co the jury. see Griffin +. state, 370

30.24 360 ‘Pla. ist OCA 1979). Pinaily, tne face <hat an unlawful

nomicice sccurred duriag <he serpetration of <ne sexual satcery

-3 zutticient =o supports a convict. for first-degree surcer

#icnout <=ne 16Cessity of proving setictioner’s specific -atenct

cnat the asurcer se erftecced.

Therefore under =he <acts Sf <nis -ase we iind <Re [ury

wastruct: somplained of co Save Seen sroperly jiven.

Therefore, as such, appaliate counsel's failure “Oo [aise =e .4s8uUe

om appeal did act amount <o ineftective assistance cr ccunsel

ander Xnight.

As alternative support for she denial of the seticion

find tnat under she indictment she state could sroperly srosecute

ander sotn a thecry of premedicaticn and a c=neory 2f Zelony-

der. Adams +. state, 412 30.24 3150 ‘?la.}, sers. denied, 193

3.ce. 132 11962); Zinder 7. state, 375 30.24 336 (Pla. 1379);

3arcon vy. State, .93 Sso.2d 413 ‘Pla. 2d KCA 1966), serc. senied,

Pla. 1367). Since =he secord clearly presents

201i 30.24 459

avigence sufficient =o support 4 fiadiag sy =e jury “ac =e

<:llang “as sy sremedicaced iesigm. <ne charge somp-dicec st

seniac, i46 3.5. 367 (1980); Frazier 7. Stace, .97 30.2d 16 ‘Pla.

In order co support a claiaz 3f wnefiective assistance 3t

-sunsel ander inignht it must se estaplishec =at = 6 alleged

arror was orejudicial in fact. This —e petiticner nas failed Oo

)

:

1

3ased on =he foregoing, -@ sconclude <2at <a pet. sioner

nag -‘ailed =o establish “hat Se vas <eniec reasonably effective

assistance 2f sppel.ats <sounsé.. consequently =5@ peticicnh tor

-4<

2Figinal 2roceeding - daceas ¢

David 2upman. ake Alfred, ?_orida: and David

*ried, Prank, darzis, Shriver and Jacobscn.

for Petitioner

SMicnh, Attorney General and charles

.

Tampa. Florida,

seneral,

for Respondent

BUFORD v. STATE

Fla. 943

Cite at, Fla, 403 So.2d 43

Robert Lewis BUFORD, Appellant,

v.

STATE of Florida, Appellee.

No. 54010.

Supreme Court of Florida.

July 23, 1981.

Rehearing Denied Oct. 14, 1981.

Defendant was convicted in the Circuit

Court, Polk County, William A. Norris, Jr.,

J., of murder in the first degree, sexual

battery upon child under 11 years of age,

and burglary with intent to commit sexual

battery. He directly appealed. The Su-

preme Court, Adkins, J., held that: (1) de-

fendant could be convicted and sentenced

for both first-degree felony-murder and un-

derlying felonies; (2) trial court did not

improperly limit cross-examination of two

state witnesses; (3) sentence of death is

grossly disproportionate and excessive pun-

ishment for crime of sexual assault and

therefore forbidden by Eighth Amendment

as cruel and unusual punishment; and (4)

imposition of death penalty for murder was

proper.

Affirmed.

Engiand, J., concurred as to conviction

and dissented as to sentence.

l. Homicide = 14(2)

If the evidence shows that the accused

had ample time to form a purpose to kill

deceased and for mind of killer to become

fully conscious of his own design, it will be

deemed sufficient in point of time in which

to enabie killer to form premeditated design

to kill.

2. Homicide 145

Where person strikes another with a

deadly weapon and inflicts a mortal wound,

the very act of striking person with weapon

in such manner is sufficient to warrant jury

in finding that person striking blow intend-

ed result which followed.

3. Criminal Law 29

Where the same act or transaction con-

stitutes a violation of two distinct statutory

provisions, test to be applied to determine

whether there are two offenses . only one

is whether each provision requires proof of

facts which the other does not.

4. Homicide =22(2)

Murder in first degree through pre-

meditation requires proof of fact not re-

quired in sexual battery: premeditated de-

sign to kill.

5. Criminal Law <=29

Defendant was properiy convicted and

sentenced for both first-degree felony-mur-

der and underlying felonies of sexuai bat-

tery and burgiary in light of evidence from

which jury could have found premeditation

and in light of fact that the two offenses

were sufficiently distinguishable so as to

permit two convictions and two punish-

ments.

6. Witnesses @=269(2)

In criminal prosecution, cross-examina-

tion of two state witnesses regarding their

knowledge of defendant’s nonviolent nature

was improper in light of fact that there

were no facts elicited by the State upon

direct examination relative to the defend-

ant’s propensity for violence.

7. Witnesses @=268(1)

Cross-examination extends to entire

subject matter, and to all matters that may

403 SOUTHERN REPORTER, 2d SERIES

f

modil rebut or

chief

supplement, contradict,

clearer facts testified to in

make

3. Witnesses > 274(1)

In emminal prosecution,

fer asked state witnesses on cross-<x-

amination regarding their knowledge of de-

nonviolent nature was improper

have elicited

evidence of his general reputation in com-

munity, not specific instances of nonvic-

question de-

fendant’s

n that defendant could only

ence

9. Criminal Law o=986.2(1)

All relevant evidence pertaining

character of defendant and circumstances

yf crime may be considered by sentencer in

Q

Ploridz

. Wt hee

10. Homicide — 3h

There was sufficient

mpose death sentence upon

urder conviction

tation so as to

defendant for m

il. Criminal Law @1213

anton rf loath *

A sentence of death is grossiy

excessive punishment for

assault and is therefore

Eighth Amendment as crucei

unusual punishment. U.S.C.A-Const

West's F.S.A. § 794.011(2)

r

12. Homicide — 34

Death sentence imposed on

convicted of murder was proper in

crime was heinous, atrocious

's FS.A. § 78204

defendant

ight of

3. Homicide — 344

In imposing death penalty on

ant convicted of murder, trial court did not

. rejecting mitigating circumstances of

iefend-

re)

e mental or emotional disturbance or

impaired mental capacity and in discount-

jefendant’s consumption

_and marijuana, in light of

mony presented and in light of fact

that defendant was able to give a deta’ «J

account of the crime. West's F.S.A. § 782-

ot

14. Criminal Law 885

In order to sustain a sentence of death

following a jury recommendation of life,

facts suggesting a sentence of death should

be so clear and convincing that

reasonable person could differ

15. Criminal Law © 9864(2)

-

Trial judge is not required to reques

presentence investigation before sent

defendant.

16. Rape 64

Sentence of life imprisonment wit

quirement that defendant serve no

than 25 years before becoming ciigibic

parole, imposeu on defendant convict

sexual assault, was an aulomatic seni

and court had no discretion to change

West's FSA. § 775.0821

Jack O. Jonnson, Public Defender

James R Wuilchak and Dougias A

wood, Asst. Public Defenders, Bartow

appeilant

Jim Smith, Atty

Richard G. Pippinger

, for appeiice

ADKINS, Justice

jircet appeal from a

adjudging defendant guilty

the first degree and guilty of sexual La

upon a child under eieven years of age

imposing two sertences of Geath De!

nt was also adjudged guilty of burg

h intent to commit a sexuai balter)

This i a

of years

wi

sent i to a term

In the early morning hours of

November 6, 1977, Lewis Wright,

the victim, fell asleep om the lives

sofa while he and his children were

ing television. His children were or

let on the living room floor. Wright

ened about 2:30 or 3:00 o'clock a =

off the television, and went to Mis ix

He did not notice if all of his childrer

still sleeping on the pallet. On his

the bedroom he observed that ine bac

of the house was open, bul assume:

the children’s grandmother had visite!

ie

house while he was sleeping anu nad ce

through the back door.

BUFORD v. STATE

Fla. 945

Ca. ~« Fla, 463 So2d 943

Lewis Wright awoke again about 7:00

o'clock a. m. and noticed that the victim, his

seven-year-old daughter, Toni, was missing.

Wright notified police; shortly thereafter

the victim’s body was discovered next to a

nearby church. She was lying on her back

in a flower bed, with her dress pulled up

around her chest and her underpants a

short distance away. There were injuries

to her head and dried blood on her head and

face. Pieces of a shattered and biood-

stained concrete block were found nearby.

At approximately 3:00 o’clock a. m. on

Sunday, November 6, 1977, the defendant

returned to his father’s home where he was

greeted by his sister, Annette Buford. She

observed him breathing hard, as if he had

just been running and saw him carrying his

t-shirt and tennis shoes. He had white

oxydized paint on his bare back and ap-

peared to be drunk. Defendant told his

sister if anyone came looking for him to say

that he had been at home since 11:00 o’clock

p.m. In a few moments defendant broke

down and stated that he might have killed a

lady with a brick. He started to implicate a

person known as “Fat Boy”, but immediate-

lv stopped, saying he was not going to

involve anyone else.

While at his father’s home later in the

day, the defendant talked both of leaving

home and of turning himself over to police.

On Monday night defendant went to the

police station, after his sister had talked

with police about his role in the crime. He

was arrested for murder, sexual battery,

and burglary with intent to commit sexual

battery. After being advised of his legal

rights, defendant signed a written waiver

of these rights and blurted out, “I did it.”

He was again advised of his rights in the

interrogation room, and he again waived

these rights. In his statement defendant

said he broke into Wright’s house through a

back window. Upon entering, he saw the

giri lying there, picked her up, and carried

her out the back door. He took her to the

church area, had her lie down and remove

her clothes. He removed his clothing and

then inserted his finger into her vagina.

He did not move his finger; he just put it

in and later took it out. He admitted pene-

tration with his penis. When the victim

started screaming, the defendant picked up

a concrete block and dropped it twice on the

victim’s head. The defendant said he was

not trying to kill her but to stop her from

screaming. The victim had recognized the

deSendant.

After the statement was concluded, the

defendant signed a consent form to search

his room at his father’s house for the jeans

he had been wearing on the night of the

incident. These jeans were recovered. A

lab analysis of a blood spot on the jeans

indicated that it was of the same type as

the victim’s blood.

With defendant’s consent, the officers se-

cured blood and hair samples from him.

While the doctor was examining defendant

and taking samples, the “octor pointed out

various cuts and scratches on defendant’s

body. When the doctor » is noting a set of

scratches, the defendant: said, “Those were

not made by the little one.”

A pubic hair that was discovered in the

victim's vagina was consistent in character-

istics with the sample taken from the de-

fendant. Both the pubic hair found on the

decedent and the sample taken from the

defendant contained an unusual “starchy”

substance. The child was too young to have

pubic hair of her own; she was only seven

years old.

At trial, the defendant testified that al-

though he had participated in the sexual

battery, a man known as “Fat Boy” had

raped and killed Toni. Defendant said he

refused to climb inside the Wright home

because he was known by them. His testi-

mony was that Fat Boy climbed through

’ the window while defendant stood outside.

When Fat Boy did not return for a while,

defendant left. A few minutes later de-

fendant met Fat Boy again. This time Fat

Boy was carrying Toni Wright. Upon ques-

tioning her, Toni said that she knew de-

fendant but did not know Fat Boy. Fat

Boy carried Toni to the church area and

commanded her to lie down. Defendant

admitted having sexual intercourse with

Toni while Fat Boy watched. Toni did not

946 Fla. 403 SOUTHERN REPORTER, 2d SERIES

scream while defendant was on top of her

Defendant got dressed and was planning to

leave when Fat Boy commenced sexual! in-

tercourse with Toni. Toni started scream-

ng. Defendant turned around to fuce

them and suw Fat Boy drop a concrete

block on the girl's head. Fat Boy picked up

the brick to drop it again and defendant

charged at him to prevent it. Fat Boy

threw defendant against the wall and

lropped the brick again. Fat Boy left

when defendant refused to allow him to go

home with him

The police officers learned about Fat Boy

and his alleged involvement in the incident

from the defendant's sister before the trial

took place. After an investigation, Fat Boy

was climinated as a suspect by virtue of an

alibi. Defendant was charged by indict-

ment with the offenses of first«<degree mur-

Ger, capital sexual baitery, and burglary

with intent Ww commit a sexual batlery

The jury found defendant guilty on all

three counts. The case then proceeded into

the penalty phase of the bifurcated trials

The jury recommended wo the court that it

mpose a life sentence on both the murder

The trial

and sexual battery convictions

court then made the following [findings of

In making the following findings of fact

mi conclusions of law the Court has tak-

en into consideration only the testimony

prouuced at trial and no other factors.

As to Count One of the Indictment

wherein defendant was convicted of First

Degree Murder the Court makes the fol-

owing findings of fact

1. As an aggravating circumstance,

the capital felony, that is, the murder of

Toni Annette Wright, a black female, age

seven (7) years, was committed while the

defendant, Robert Lewis Buford, was en-

gaged in the commission of the crime of

sexual battery. F.A. 921.141(5Xd). The

evidence is conclusive that the crime of

sexual battery was complete and that

sufficient penetration occurred. The de-

fendant’s free and voluntary statement to

law enforcement officers supports this

finding together with his testimony in his

own behalf during the trial. The defend-

ant attempted to repudiate his previvus

confession to create an accomplice by (he

name of “Fat Boy”, however, the Court

specifically rejects thm testimony as |-

ing an untrue and a tota! fabrication

2 As a further aggravating circum-

stance the Court finds that the capita!

felony was especially heinous, atrocivus

and cruel. F.A. 921.141(5Xh). The testi-

mony ampiy supports a finding that this

seven (7) year old child was alsiucte!

from her home, while asicep by a ninc-

wwen (19) year old adult male, that sin

was taken lo u secluded spot where tn

defendant brutally sexually assaulted her

After he had fulfilled his lustful desire>

and ascertained that the victim wouki |x

in a position to identify him, the defend-

ant snuffed out the life of this child by

crushing her head with a concrete bioch

dropped at heights from at least wai

high. The testimony of the palhvioyist

Dr. Robert Smith, reveals at least threo

(3) separate crushing wounds and Che ck

fendant “aimits” to dropping the thirt

twe (32) pound concrete block on Un

tim’s head twice. The Court specifica

rejects as untrue and as a fabricatior

defendant's testimony that the vic

was killed by this so called accom;

“Fat Boy”. Dr. Robert Simth viewed

victim's body at the scene and tes

that the child was covered with sand

that there was eviaence of an extens

struggle. The Court finds that the struy

gle was between the defendant ani

seven (7) year cid child and that nv other

person was involved. The pathuloy

testified that he found numerous abra

sions over the entire body of this

with extensive amounts of bioud comin,

from the nose and mouth arcas

3) severe wounds were found in Ux

area, two (2) on the right side and

almost in the midline in the back

head, indicating at least three (3)

rate blows. The skull was exten:

fractured resulting in numervus [r.,

ments of the skull becoming «k

directly into the brain. Multiple

abrasions were found on the chiki’ ry

arm and on her right chest areca

BUFORD v. STATE

Pia. 947

Cite as, Fla, 463 $0.24 943

The pathologist was of the opinion that

any of the three (3) separate blows would

have been sufficient to cause death and

that the child may have lived for at least

an hour after the first blow but that she

would have lost conscicusness fairly rap-

idly

The pathologist also testified that he

visually observed extensive trauma to the

genital area and that his autopsy re-

vealed acute perforation of the hymen

resulting in acute hemorrhaging from the

hymenal area. The autopsy revealed nu-

merous bleeding points in the lining of

the vagina itself and the presence of five

5) ce’s of seminal fluid within the vagina.

Although the defendant in his state-

ment and in his testimony denied that the

victim made any outcry while she was

being sexually abused the Court rejects

this testimony as being unbelievable and

patently untrue and finds as a matter of

common understanding and knowledge

that a seven (7) year old virginal child

would suffer excruciating pain as her va-

gina was being penetrated first by the

defendant's finger and then by his adult

penis.

The standard jury instructions define

heinous as meaning extremely wicked or

shockingly evil. Atrocious is defined as

outrageously wicked and vile. Cruel

means designed to inflict a high degree of

pain; utter indifference to, or enjoyment

of, the suffering of others; pitiless. In

the Court’s experience of seven (7) years

as an Assistant Prosecuting Attorney and

six (6) months on the bench, I am not

aware of a case where a defendant's con-

duct more clearly falls within the defini-

tion of heinous, atrocious, and cruel.

3. The other aggravating crcum-

stances: P.S. 921.141(5Xa); 921.141(5Xb);

921.14(5Xc); 921.141(5Xe); 921-141(5Xf);

921.141(5Xg), are inapplicable in this case.

As to mitigating circumstances invoiv-

ing both the charge of first degree mur-

der and the charge of sexual battery, the

Court makes the following findings:

1. The defendant has no significant

history of prior criminal activity. FS.

921.141(6Ka), and this a mitigating factor.

2 As to FS. 921.141(6Xb), there s no

evidence that the capital crimes were

committed while the defendant was un-

der the influence of extreme mental or

emotional disturbance. The defendant's

mother testified that for several weexs

prior to the crime the defendant had been

using alcohol and marijuana extensively

but the Court finds that this alcohol and

marijuana usage do (sic) not result in

extreme mental or emotional disturbance.

3. As to FS. 921.141(6Xc), there 3 a>

solutely no evidence that the victim was 2

participant in the defendant's conduct or

that she consented to the act

4. As to FS. 921.141(6Xd), the defend-

ant attempted to establish by his testimo-

ny that he was merely an accomplice to

these offenses and that his partucipauion

was relatively minor, however, he cid

“admit” to having sexual intercourse

with this seven (7) year old child, and as

the Court has stated above, his testimony

that this so called “Fat Boy” was an

accomplice is rejected as being untrue

5. As to FS. 921.141(6fe), there ws no

evidence that the defendant was under

extreme duress or under the substantiai

domination of any person.

6 As to FS. 921.141(6Xf), there is no

believable evidence that the defendant

lacked the capacity t appreciate tne

criminality of his conduct or that his abt-

ity to conform his conduct to the requirc-

ments of law was substantially impaired.

On the contrary, the fact that the defend-

ant sought to eliminate Toni Annette

Wright because she would be in 2 position

to identify him supports a finding tnat

the defendant appreciated the criminality

of his conduct.

7. Asto F.S. 921.141(6Xg), the defend-

ant was nineteen (19) years at the time of

these offenses and his age is therefore, a

mitigating circumstance. The Court

notes, in passing, that as to sexuai bal-

tery the legislature found that the age of

the deferiznt was a factor to be taxen

into account in determining whether tne

sexual battery is 2 capita! crime.

948 Fla.

As two Count Two of the indictment

wherein the defendant was convicted of

sexual battery wherein the victim was

eleven (11) years of age or younger and

the defendant was over eighteen (18)

years of age, the Court makes the follow-

ing findings of fact:

1. AS an aggravated circumstance, the

capital felony was especially heinous,

atrocious and cruel. F.A. 921.141(5Xh).

In support of this finding the Court rea-

dopts the findings contained in paragraph

2 above.

2. The other aggravating circum-

stances to-wit: FS. 921.-

141(5XaXbXeXdXeX fg), are inapplicable

to this charge.

The trial jury has rendered its advisory

sentence to the Court recommending that

a sentence of life imprisonment be im-

posed on the defendant as to each of

these capital crimes. Our Fiorida Su-

preme Court has stated that the recom-

mendation of the trial jury is to be ac-

corded great weight by the trial judge

but I perceive the law still to be that the

recommendation of the trial jury is not

binding on the trial judge and that I stili

have the awesome responsibility of mak-

ing the ultimate determination of wheth-

er the aggravating circumstances do in

fact outweigh any mitigating circum-

stances and accordingly whether the

death penalty should be imposed. In the

following cases the trial judge declined to

follow the recommendation of the trial

jury and the imposition of the death pen-

alty was subsequently affirmed by the

Florida Supreme Court: Hoy vs. State,

353 So.2d 826 (1977); Barclay vs. State,

343 So.2d 1266 (1977); Debbert vs. State,

328 So.2d 433 (1976); Dougias vs. State,

328 So.2d 18 (1976); a case originating

from this Circuit; Gardner vs. State, 313

So.2d 675 (1975); and, Sawyer vs. State,

313 So.2d 680 (1975). A review of the

factua!l statements in these cases leads

the Court to the conclusion that this de-

fendant’s conduct was at least equal to

the conduct of the defendants in each of

those capital cases.

403 SOUTHERN REPORTER, 2d SERIES

It is the ultimate finding and determ-

nation of the Court that as to the charge

of first degree murder, the aggravating

circumstances substantially outweigh the

mitigating circumstances and therefore

the death penalty should be imposed upor

the defendant, the recommendation of

the trial jury to the contrary notwith-

standing.

As to the charge of sexual battery, thc

aggravating circumstances outweigh ‘hc

mitigating circumstances and therefor:

the death penalty should be imposed upon

the defendant, the recommendation of

the trial jury to the contrary notwith-

standing.

Upon appeal the defendant says that hx

could not be convicted and sentenced fur

both the first-degree felony murder and (hm

underlying felonies, sexual battery and bur-

giary, relying upon the principles enunciat-

ed in Pinder v. State, 375 So.2d 836 (Flu

979). Pinwer was a prosecution for [irst-

egree murder, sexual battery and buryla-

ry. The Court commented that the jur,

could have found defendant guilty of [irs

degree murder only on the basis of evidenc:

that the defendant killed the victim during

the perpetration of the burgiary or sexua

battery, as there was no evidence of pre-

meditation.

fendant could not be convicted of [elur

murder and the underlying [clony

which the murder conviction was bas!

in addition to the killing, the

commits more than one felony, only om

the felonies need be considered the under

ing felony and the defendant may ix

victed and sentenced for the other felunx

The Court relied upon Brown v. Vhiv, is.

U.S. 161, 97 S.Ct 2221, 53 LEIA’ is

(1977), and Harris v. Oklahoma, 433 U >

682, 97 S.Ct. 2012, 538 L.Ed.2d 1054 (1977

In the case sub juc'ce there was

evidence from which the jury cuu

found premeditation. Although

fendant, at one point, declared that hx

not intend to kill the victim; nevertheh

he also said that he dropped the cuncr

block on the victim “because she know

me.” He also stated that after the =

BUFORD ¥. STATE

Fla

949

Cue a, Pa +03 Sole I

battery he took a cement block, held it “a

little higher than the waist—right here”

and dropped it on the child. He did it

again. This time he lifted it highes. He

bent down to see if she was still alive and

she was not.

{1,2] If the evidence shows that the ae-

cused had ampie time to form a purpose to

kill the deceased and for the mind of the

killer to become conscious of hs

design, it will be deemed sufficient in point

of time in which to enable the killer to form

a premeditated design to kill. Green ¥

State, 93 Fla. 1076, 113 So. 121, 122 (1927)

Where a person strikes another with a

own

a

iViy

deadly weapon and inflicts a mortal wound,

the very act of striking such person with

such weapon in such manner is sufficient to

warrant a jury in finding that the person

striking the blow intended the result © hich

followed. See Rhodes v. State, 104 Fla. 520,

140 So. 309, 310 (1932)

There being adequate proof of premedita-

tion, the principles announced in Pind

not applicable to this case

[3-5]

fenses are not sufficiently dist

to permit the imposition of cumulative pun-

ishment. Where the Lransac-

tion constitutes a

statutory provisions, the test to be applied

to determine whether there are two of-

fenses or only one, is whether each provi-

sion requires proof of the facts which the

other does not. Ohio. Murder in

the first degree through premeditation re-

quires proof of a fact not required in sexual!

battery: premeditated design

Defendant also said that the of-

ng shade

same oct or

violation of two distinct

Brown ¥

iii

It is true, as asserted by defendant, that

the double jeopardy clause protects against

multiple punishments for the same offense

North Carolina v. Pearce, 305 U.S. 711, 8

S.Ct. 2072, 23 L.Ed.2d 656 (1968). In the

absence of proof of premeditated design,

this principle would be applicable to the

case sub judice. The two offenses are suffi-

ciently distinguishable so as to permit two

convictions and two punishments

[6,7] Defendant

the court improperly

also complained that

limited cross-examina-

on of (wo stale witnesses regarding (heir

knowledge of defendant's non-violent na-

ture. Witnesses Barnes and Hayes were

friends of the defendant Barnes testified

as to activities of the defendant until 11:00

o'clock p. m the night of the homicide

Hayes testified as to his activities until 2:00

2 clock & ™. ihe same night. UN cross-cx-

@mination the attorney for defendant asked

Burnes if he found defendant

e& non-violent person.” On cross-examina-

tion counsel for defendant asked Hayes

he had known defendant “to get violent or

anything like that” There were no facts

elicited Oy the state upon cirect cxamuna-

tion relative to defendant's propensity for

violence. It is true that cross«cxamination

extends to the entre subject matter, and lo

Ww ve a Gur

all matters that may modify, supplement,

contradict, rebut or make clearer the [acts

testified to in chief. Coxweill v. State, 361

148 (1978). However, the allempted

nination in the case

way rclauve Ww We

nation of the wilnesses. It

cross-¢ xaminawon

[8] In addition the question

Defendant

r

mproper Maca ar

luce evidcnce mus non-violent

ul (mis ww Gone throug? fis own

in any event, he cou only have

evidence of his general reputation

community, not specific instances of non-vi-

plence. Prevatt v. State, 82 Fila. 24

B07 (1921); Reddick ¥

So. 704 (1889

Defendant next contends

921.141, Florida Statutes (1977

tuWonai

circumstances to be considered to

He says

sy So

. - :

Stale, & fia. iid, 2

n

Mal seclion

i UNCONSL-

because it restricts he Tuligaung

Ve elu

meratec in the statute

lates the Eighth and Fourteenth

{ Const. :utic

ments to the United States

This

moved to

Also he requested a jury

that mitigating circumstances which (he

jury could consider were not limited

those listed in the statute. The

denied the motion to dismuss or

alsc denied the requested instruction

question wa. raised when defendant

dismiss or quash the indictment

nstrucwuon slaling

Ura

jvasr

403 SOUTHERN REPORTER, 2d SERIES

record does not show that the trial judge

preciudea defendant from offering any evi-

jence of mitigation. The trial judge cor-

rectly ruled thal (he standard jury instruc-

uuons adequately covered the instructions on

mitigating circumstances

[9] Defendant argues that the death

t $ unconstitutional in light

Ohio, 4388 U.S. 586, 98 S.CL

Exi. 2d 973 (1978), where the Su-

i that the limited range of

circumstances which couki be

considered by the sentencer under the Ohio

Statute was incompatible with the Eighth

and Fourteenth Amendments. The identi-

cal attack was made upon the Florida stat-

Wainwright, 578 F.2d

582 (Sth Cir. 1978), cert. denied, 440 US

976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979)

There the Fifth Circuit held that the Flori-

ja statute as applied and construed by the

of Florida conforms to the

rendered in Lockett Ohio. In

this Court has recognized the

non-cnumerated mitigating

circumstances and utilized them in deter-

mining the propriety of the sentence. See

State, 355 So.2d 111 (Fla.1978);

State, 4 So.2d 1276 (Fla

State, 330 So.2d 137 (Fla

State, 336 So.2d 1142 (Fila.

State, 332 So.2d 615 (Fla.

State, 339 So.2d 204

failiwell v. State, 323 Se.2d 557

It is clearly established that ail

jence pertaining to the charac-

dant 4 rcumstances of

xe considered by the senvenc-

nvalidate

ule in Spinkellink

Supreme Court

secisi0N

several cases

relevance of

Luckett! Goes not

says the imposition of

sentence upon him for the murder

where he did not possess a pur-

he death of the victim, is

ims assertion is without

the record. There was suffi-

of premeditation

Florida Statutes

whoever being eigh-

ween years or older commuts a sexual Dat-

very upon a person eleven years of age or

s0n TH40LK2

provides (nat

.

younger, is guilty of a capital felony. The

defendant was nineteen years of age at the

time of the offense and his victim was

seven years of age. In his motion to dis

miss, defendant challenged the constituton-

ality of this statute, contending that pun-

ishment by death for the crime of sexual

Dallery constiiules crue! and unusual pun-

ishment in violation of the Eighth and

Fourteenth Amendments to the Unite

States Constitution. By denying the mo-

uon to dismiss and imposing the death pen-

alty, the trial court held that the statute

was constitutional. This question has not

been decided under present Florida law

We have recently considered sexua! batter)

cases in which the penalty had been im-

f

posed, but we reduced the sentence to |i!

imprisonment in both cases because of the

particular circumstances. Purdy v. State

343 So.2d 4 (Pla), cert. denied, 434 US. ¥

98 S.Ct. 153, 54 L.Ed.2d 114 (1977); Hucka-

State, 343 So.2d 29 (Fla.), cert. deni

920, 98 S.Ct. 393, 4 L.Ed 2d 27

by v

4s US

1977)

5. 97 S

bh

invoivec Ltn

Coker v. Georgia, 433 US

2861, 53 L.Ed.2d 982 (1977),

sentencing of a man convicted of rape up

the verdict of a Georgia jury

jury recommended the death penalty anu

the trial court imposed a death sentence

The Georgia Supreme Court affirmed. Th:

Supreme Court of the United States he

that the punishment of death for the ray

of an adult woman violates the cruc

unusual punishment clause of the Eig!

Amendment because it is grossly

tionate and excessive in relation to

crime committed. The Court has

decide whether the same hoids true [

rape of a child under eleven years

In its plurality opinion (Justices

Stewart, Blackmun, and Stevens) the

noted that Georgia was the only state wh

authorized a sentence of wie:

rape viclim was an adult woman ;

ther jurisdictions (Florida and Mississ

provided capital punishment when

tim was a child. It was then said

opinion

on -

The Georna

Jisproj-

veain

BUFORD v. STATE

Fia. 951

Cine os, Plu. 463 $0.26 843

Rape is without doubt deserving of se-

rious punishment; Dut in terms of moral

jepravity and of the injury to the person

and to the public, it does not compare

murder, which does involve the un-

justified taking of human life. Although

t may be accompanied by another crime,

rape by definition does not include the

Jeath of or even the serious injury to

another person. The murderer kills; the

rapist, if no more than that, does not.

Life is over for the victim of the murder-

er. for the rape victim, life may not be

nearly so happy as < was, but it is not

over and normally #2 not beyond repair

We have che abiding conviction that the

which “is unique in its

severity and irrevocability,” Gregg ¥

Georgia, 428 US [153] at 187, 96 $.Ct

2909, {at 2031,) 49 LEd 2d 859, ws an

excessive penalty for the rapist who, a

such, does not take human life

wilh

death penalty,

This does not end the matter, for un-

jer Georgia law, death may not be im-

yosed for any capita offense, including

rape, unless the jury or judge finds one of

the statutory aggravating circumstances

then elects to impose that sentence.

Sa Ann.Code § 26-3102 (1976 Supp.):

Grege v. Georgia, supra, at 165-166, 96

S.Ct 2909 (at 2921-2922}, 49 L.Ed.2d 859

For the rapist to be executed in Georgia,

t must therefore be found not only that

ne committed rape but also that one or

more of the following aggravating cir

cumstances were present 1) that the

rape was committed Dy @ person with a

prior record of conviction for a capital

felony; (2) that the rape was committed

while the offender was engaged in the

commission of another capital felony, or

aggravated battery; oF 3) the rape “was

outrageously or wantonly vue, horrible or

, im that it involved torture, de-

pravity of mind, or aggravated battery to

the victim. Here, the first two of these

aggravating circumstances wer. alleged

and found by the jury

Neither of these circumstances, sor

both of them together, change our conclu-

that the death sentence imposed on

ana

son

Coker is a disproportionate punishment

for rape. Coker had prior convictions for

capital felonies—rape, murder, and kid-

naping—but these prior convictions do

not change the fact that the instant crime

being punished is a rape not involving the

taking of life.

433 US. at 598-599, 97 S.Ct. at 2869 (foot-

notes omitted).

[ll] Justices Brennan and Marshall con-

curred in the judgment as each believed

that the death penalty in ali circumstances

is cruel and unusual punishment prohibited

by the Eighth and Fourteenth Amenc

ments. Justice Powell concurred in the

judgment, but would not prejudge the issuc

of capital punishment in the case of an

outrageous rape resulting in serious, lasting

harm to the victim. Justice Burger and

Rehnquist dissented. The reasoning of the

justices in Coker v. Georgiu compels us to

hold that a sentence of death is grossly

disproportionate and excessive punishment

for the crime of sexual assault and is there-

fore forbidden by the Eighth Amendment

as crue! and unusual punishment.

We point out that section 782.04, Florida

Statutes (1977), defines murder in the first

degree as the unlawful k'lling of a human

being when perpetrated from a premeditat-

ed design to effect the death of the person

killed, or when committed by a person en-

gaged in the perpetration of, or in the at-

tempt to perpetrate, any sexual battery

Since the death sentence sub judice is sus-

tained under the conviction of premeditated

murder, the constitutionality of the statute

imposing the death penalty for sexual bat-

tery becomes academic. Capital punish-

ment can be inflicted only once

The defendant says that the death sen-

tence should be vacated in the murder con-

viction because there was no evidence to

support the finding of the trial judge that

the crime was heinous, atrocious, and crue!

Defendant refers us to State v. Dixon, 23

So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S.

943, 94 S.Ct 1950, 40 L.Ed.2d 295 (1974),

where we held that atrocious means outra-

geously wicked and vile and that cruel

means designed to inflict a high degree of

Gaz Fila.

pain with utter indifference to, or even

enjoyment of, the suffering of others. De-

fendant insists that when the facts of this

case are compared with previous decisions

of this Court the findings of the trial judge

cannot be upheld. He cites Halliwell v.

State, 323 So.2d 557 (Fla.1975). In Haili-

weil the killing arose from a love triangle in

which defendant flew into a violent rage

after the husband of the woman he loved

had beaten her. It was an emotional type

of homicide. However, hours later the de-

fendant dismembered the body. We heid

that the dismemberment of the body after

death was not relevant in fixing the death

penaity. Since the dismemberment was not

relevant, a killing committed in an emotion-

al rage was not heinous, atrocious, or crucl.

In the case sub judice there was no emo-

tional rage. The defendant kidnapped a

seven-year-old child for the purpose of sex-

ually abusing her and when he felt she

could identify him, defendant proceeded to

kill her with a cement block.

In Bureh v. State, 343 So.2d 831 (Fla.

1977), cited by defendant, there wus evi-

dence that the defendant was mentally dis-

turbed at the time of the offense. We held

this to be a mitigating factor and (hat this

factor was obviously considered by the jury

in recommending life and improperly re-

jected by the trial judge. When this miti-

gating circumstance was weighed against

the aggravating circumstances, ‘!-_ judge’s

rejection of the jury’s recommenaation was

overturned by this Court. In Burch we did

mot say that the act was not cspecially

heinous, atrocious, or cruel.

In Chambers v. State, 339 So.2d 204 (Fla.

1976), the defendant and the victim shared

a long-standing relationship which included

severe and ‘isabling beatings. Also, the

victim had consented to the beatings which

caused death. We held that the totality of

circumstances and the weighing of mitigat-

ing and aggravating circumstances did not

warrant the imposition of the death penalty

on the defendant.

Jones v. State, 332 So.2d 615 (Fla.1976),

cited by defendant, resulted in the approval

of the jury's recommendation of a life sen-

403 SOUTHERN REPORTER, 2d SERIES

tence because the defendant's mental illness

was considered as a factor to be weighc«

The imposition of the death penalty was

held to be proper in Washington v. State.

362 So.2d 658 (Fla.1978), cert. denied, 441

U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666

(1979), where the victim was kidnapped and

held captive for twenty-four hours before

being stabbed to death while tied, spread-

eagled and helpless, on a bed, crying out

and moaning as the stabbing continued

Alford v. State, 307 So.2d 433 (Fla.1975),

cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49

L.Ed.2d 1221 (1976), involved a defendant

twenty-seven years of age who was convict-

ed of the murder of a thirteen-year-old

female. The victim's body was discoveru:l

lying atop a trash pile. She had/been rajaxd

and shot to death, execution style. Her

nude body was found blindfolded, with bul-

let wounds in her head, chest, back ani

arm. We upheld the death sentence and

described the act as being especially hei-

nous, atrocious, and cruel

{12} The homicides in Proffitt v. Stat

315 So.2d 461 (Fla.1975), aff, Proffitt

Florida, 428 US. 242, 96 S.Ct. 2060, iY

L.Ed.2d 913 (1976) (stabbing a man asiev;

in his bed), and Spinkellink v. State, 313

So.2d 666, (Fla.1975), cert. denied, 423 US

911, 96 S.Ct. 3227, 49 LEd.2d 1221 (1976

(shooting a sieeping companion), were !

nous, atrocious, and cruel. So the instant

case certainly qualified as une which is |

nous, atrocious and cruel. The mental

guish suffered by the victim preceding (!

killing is a factor that may be consilered

determining whether the act was cspeciall;

heinous, atrocious, or cruel. Anight

State, 338 So.2d 201 (Fia.1976)

Defendant also cites, in support of |

position, the case of Purdy v. State, 31

So.2d 4 (Pla.), cert. denied, 434 U.S. 347, ¥>

S.Ct. 153, 54 LEd2d 114 (1977). Purd

involved a sexual battery on a child and |

imposition of the death sentence was bao!

primarily on the aggravating circumstam

of heinous, atrocious, and cruel. We

that the evidence failed to show that |!

sexual battery of this child was especial!)

aggravated under the terms of the deat!

BUFORD v. STATE

Fla. 953

Citeas Pa +63 Sold #4)

sentence law. We pointed out there was no

evidence of physical abuse other than the

sexual assault and the victim was not physi-

cally harmed. The case sub judice was

more than a sexual assault. There was a

kidnapping and physical harm which result-

ed in death. in Washington v. State we

observed that the mental anguish experi-

enced by a kidnapped victim awaiting even-

tual death bears upon the atrocity of the

crime. This contention is without merit.

{13} Defendant then contends that the

trial court erred in not finding the addition-

al mitigating factors which were present in

the evidence. He complains that the trial

court rejected the mitigating circumstances

of extreme mental or emotional disturbance

or impaired mental capacity, discounting

the effects of defendant’s consumption of

alcohol, drugs, and marijuana. Obviously

the ability of the defendant to give a de-

tailed account of the crime was inconsistent

with the contention that Se had a diminish-

ed or impaired mental capacity because of

excessive consumption of alcohol, drugs,

and marijuana. In view of the testimony

presented, the trial judge correctly rejected

defendant’s “drinking” and “drug use” as a

mitigating factor. Jones v. State, 332 So.2d

615 (Fla.1976), does not avail defendant be-

cause in Jones there was extensive psychi-

atric evidence to the effect that the defend-

ant did not know the difference between

right and wrong.

Defendant raises the possibility that he

was a mere accomplice and that this theory

was not considered by the trial judge. Dur-

ing the course of the investigation and dur-

ing the trial, the defendant did attempt to

implicate Fat Boy. This theory was reject-

ed by the trial judge in weighing the evi-

dence produced at the trial.

[14] Defendant contends that the trial

court committed error in rejecting the

jury’s recommendations of life imprison-

ment, relying upon Tedder v. State, 322

So.2d 908 (Fla.1975). In Tedder we pointed

out that the recommendation of the jury

should be given great weight. In order to

sustain a sentence of death following a jury

recommendation of life, the facts suggest-

ing a sentence of death shouid be so clear

and convincing that virtually no reasonabie

person could differ.

In Malloy v. State, 382 So2d 1190 (Fla

1979), the Court said:

We have repeatedly stated that in re-

viewing the propriety of a death sen-

tence, this Court must weigh heavily the

advisory opinion of life imprisonment by

the sentencing jury. The facts justifying

the death sentence must be clear and

convincing in order to overrule the jury’s

recommendation. Therefore, we must

examine this record to determine whether

there are clear and convincing facts that

warranted the imposition of the death

penalty, and, in doing so, we must deter-

mine if there was a reasonable basis for

the jury’s recommendation.

Id. at 1198. (Citations omitted.)

If defendant’s testimony were accepted

as creating a reasonable doubt, he should

not be found guilty of murder in the first

degree for his participation in the murder

would not be proved. Defendant said he

was leaving the scene, turned around when

the victim screamed, and saw Fat Boy drop

a concrete block on her head.

A convicted defendant cannot be “a little

bit guilty.” It is unreasonabie for a jury to

say in one breath that a defendant's guilt

has been proved beyond a reasonabie doubt

and, in the next breath, to say someone elise

may have done it, so we recommend mercy.

This case is unlike Neary v. State, 384

So.2d 881 (Fla.1980), where an accomplice

receiving lesser punishment playcd a signif-

icant role in the perpetration of the crimi-

nal act. Here the defendant committed the

murder or Fat Boy did it. This question

was settled by the verdict of guilty.

The trial court reviewed other cases

where this Cocrt has affirmed the death

penalty after a recommendation by the jury

of life imprisonment. The trial judge made

a specific finding that defendant’s actions

in the case sub judice at least cqualed the

conduct in those cases. This finding is sup-

ported by the evidence. Consequently, it

comes tc this Court with the presumption of

correctness.

954 Fla

In Hoy v. State, 353 So.2d 826 (Fla.1977),

cert. denied 439 U.S. 920, 99 S.Ct. 293, 58

L.Ed.2d 265 (1978); Barclay v. State, 343

So.2d 1266 (Fla.1977), cert. denied, 439 U.S.

892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978);

Dobbert v. State, 328 So.2d 433 (Fla 1976),

aff'd, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2a

344 (1977); Dougias v. State, 328 So.2d 18

(Fla.), cert. denied, 429 U.S. 871, 97 S.Ct

185, 50 L.Ed.2d 151 (1976); and Sawyer v.

State, 313 So.2d 680 (Fla.1975), cert. denied,

428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220

(1976), this Court found compelling reasons

to reject the jury’s recommendations.

Unquestionably the Court in each of

these cases was swayed by the extreme

heinousness and atrocicusness of the crimes.

So was the trial court in the instant case.

In all of the above cases, with the exception

of Dobbert, the victim was an adult. Here

it was a seven-year-old child. She had been

kidnapped, subjected not only to sexual

abuse, but to the anguish of perceiving that

she was about to have her head crushed,

and this mental anguish bears on the atroci-

ty of the crime. Washington v. State. The

trial judge exercised a reasoned judgment,

and the facts suggesting a sentence of

death were so clear and convincing that

virtually no reasonable person could differ.

(15] The trial judge was not required to

request a presentence investigation before

sentencing the defendant. Hargrave v.

State, 366 So.2d 1 (Fla), cert. denied, 444

U.S. 919, 100 S.Ct 239, 62 L.Ed2d 176

(1979); Thompson v. State, 328 So.2d 1 (Fla.

1976).

[16] The sentence of death imposed for

conviction of sexual assault is vacated.

Section 775.082(1), Florida Statutes, man-

dates a punishment of life imprisonment

with a requirement that defendant serve no

less than twenty-five years before becoming

eligible for parole. This is an automatic

sentence, and the Court has no discretion.

Sufficient factors are present in this case to

create an exception to Florida Rule of

Criminal Procedure 3.180 requiring the

presence of defendant at sentencing. See

Anderson v. State, 267 So.2d 8 (Fla.1972).

The defendant, for the crime of sexual bat-

4063 SOUTHERN REPORTER, 2d SERIES

tery upon a child under eleven years of age,

shall be imprisoned for life, with no eligibil-

ity for parole during the first twenty-five

years.

We have carefully reviewed the evidence

in this case and find that the judgments of

guilt and the sentence of death for muricr,

as well as the sentence to a term of years,

were appropriate. These judgments and

sentences of the trial judge are therefore

affirmed.

SUNDBERG, C. J., and BOYD, OVER-

TON and ALDERMAN, JJ., concur.

ENGLAND, J., concurs as to the convic-

tion and dissenis as to the sentence

e Court of Florida

SUPT EM

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SYDNEY C. NEIL, CSR. RPR

OFFICIAL court REPORTER

TENTH JUOICIAL cimcurr

BARTOW. FLORIDA 33830

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window at the pack of the house, at the end bed-

roGad, ana Ae asnzeu we to go in there after he

Goae terceu tiie wincow Qoen. ite asked me to go

ia thece wuc L uidu't go in.

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he wasa'ic Cceosming vacn and so s ran from the house

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SYDNEY C. NEIL, C52, RPR

HALL OF JUSTICE BLOG.

OFFICIAL COURT REPL ATER

= 813-533-3158

'

TENTH JUDICIAL CIRCUIT

BARTOW. FLORIOA 33830

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SYDNEY C. NEIL. CSR, RPR

OFFICIAL COURT REPORTER

TENTH JUDICIAL CIRCUIT

BARTOW. FLORIOA 33630

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739

HALL OF JUSTICE SLOG

613-533-3156

come upon tine Girt Being Curoweu asOunse asisi Seuss

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SYDNEY C. NEIL, CSR, RPR :

HALL OF JUSTICE SLOG

OFFICIAL COURT REPORTER 613-633-3188

TENTH JUDICIAL CIRCUIT

BARTOW. FLORIDA 33630

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HALL OF JUSTICE BLOG

813-533-3156

SYDNEY C. NEIL. CSR, RPR

OFFICIAL COURT REPORTER

TENTH JUDICIAL CIRCUIT

BARTOW. FLORIDA 33830

804

HALL OF JUSTICE SLOG.

813-533-3158

SYDNEY C. NEIL, CSR. RPR

OFFICIAL COURT REPORTER

TENTH JUDICIAL CIRCUTr:

BARTOW. FLORIDA 33630

| the aforesaid did enter a structure, to-wit,

a dwelling, to-wit, a residence located at

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SYONEY C. NEIL, CSR, RPR erp 8 a

OFFICIAL COURT REPORTER 633.933-3130

TENTH JUDICIAL CIRCUIT

BARTOW. FLORIDA 33830

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SYONEY ©. NEIL CSR. RPR

OFFICIAL

TENTS

saRrTow

court

sUOICIAL

REPORTER

cimcuir

FLORIDA 33630

° highest degree of anger, rage, resentment or

. |

2 exasperation. ‘the heat of passion is anger,

}

: rage, resentment or exasperation so intent as

‘ to overcome or suspend the use orf ordinary

5 judgment and to render tne wind of an ordinary

6 person iancapatble of caim retiection. And a

7 Gangerous weapon is any weapon which, taking

2 into account the manner in which it is usec,

+ is likely to produce death or great bodily

0 nar.

Justifiable homicide: the killing of a4

12 human being is justifiable homicice and

13 Lawitul wnen committed by any person in the

4 use Or such force as he reasonably believes

S is necessary to prevent imminent death or

4 great bouily harm to Mimselt or another, of

17 to prevent the commission or a torceabic

8 felony.

9 Muragqer in the first vegree: Murder in

20 the tirs:c uevree is che unlawtul kiiling of

2 2 numan perng when perfpeccateu irom a premedi-

22 tated design to erfeet the death of the

23 person Killed oF aay Auman ben. A premedi-

24 tated desion to Kili is a fully-formed,

25 conscivts purpose tS taé&c AuMan Life, tormecec

580

SYDNEY C. NEIL. CSR. RPR

- fomnoe fewren Bn HALL OF JUSTICE BLOG

613-533-3156

TENTH JUDICIAL CIRCUIT

BARTOW. FLORIOA 33630

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mony cannot always be obtained. ‘MSnerefore,

the law recognizes that it may be proved by

circumstantial evidence.

It will be sufficient proof of such

premeditated design if the circumstances

attending the homicide and the conduct of

the accused convince you beyond a reasonable

doubt of the existence of such premeditated

design at the time of the homicide.

The killing of a human being when

committed by a person engaged in the perpe-

tration of or in the attempt to perpetrate

any sexual battery is murder in the first

degree even though there is no premeditatec

design or intent to kill. If a person kilis

another in tryiag to do or commit sexual

y or while escaping from the immediate

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scene of such crime, the killing is in the

lurder in the second degree is the

killing of a human being by the perpectratiocn

of an act imminently danygerous to another and

2 depraved mind regardless of human

SYDNEY C. NEIL. CSR, RPR

FICIAL T REPORTER HALL OF JUSTICE BLOG.

7 aan 813-533-3156

TENTH JUDICIAL CIRCUIT

BARTOW. FLORIDA 33830

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SYONEY C. NEIL,

OFFICIAL COURT REPORTER

613-533-3158

TENTH JUDICIAL CIRCUIT

SARTOW.

FLORIOA 33830

ORIGINAL

Case No. 03-5377

In The

SUPREME COURT OF THE UNITED STATES

October Term 1982

ROBERT LEWIS BUFORD,

Petitioner,

vs.

LOUIE L. WAINWRIGHT,

Secretary, Department of Corrections,

State of Florida,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA ‘

JIM SMITH

ATTORNEY GENERAL

STATE OF FLORIDA

CHARLES CORCES, JR.

Assistant Attorney General

1313 Tampa Stre>t, Suite 804

Tampa, Florida 33602

Park Trammell Buil

(813) 272-2670

Counsel for Respondent

Tre We re Pee

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OPINION BELOW

The opinicn of the Supreme Court of Florida is reported

at 428 So. 2d 1389. The opinion of that Court on direct

appeal is reported at 403 So. 2d 943 (1981).

: JURISDICTIONAL STATEMENT

Respondent does not question the jurisdictional state-

ment as stated in the Petition for Writ of Certiorari.

STATEMENT OF THE CASE

Petitioner was convicted in the State of Florida of

murder in the first degree and sentenced to death. He appealed

to the Florida Supreme Court. Among the issues he raised on

appeal was that the trial judge committed error in rejecting

the jury's recommendation of life imprisonment. Petitioner

had argued that the jury probably had recommended life based

on his testimony at trial wherein he testified that, while he

had participated i:. the sexual battery of the child. it was

“fat boy” who actually killed her, Buford v. State, 403 So.

2d 943, 945 (Fla. 1981) and that in imposing the sentence of

death the trial judge had failed ox refused to consider this

(probable) finding by the jury. The Florida Supreme Court

rejected this argument commenting on the fact that "[i]f

defendant's testimony were accepted as creating a reasonable

doubt he should not be found guilty of murder in the first

degree for his participation in the murder would not be

proved" Id. 953 (emphasis supplied), opining:

A convicted defendant cannot be

"a little bit guilty." It is u-

reasonable for a jury to say in one

breath that a defendant's guilt has

been proved beyond a reasonable

doubt and, in the next breath, to say

someone else may have done it, so we

recommend mercy.

403 So. 2d 943, 953 (1981)

Petitioner subsequently filed a Petition For Writ Of

Habeas Corpus in the Florida Supreme Court seeking to raise

3 belated issue contending his appellate counsel was

ineffective because he failed to raise on appeal the issue

of the refusal of the trial court to include in its principal

snd accessory instruction the

“requirements that the State show

that as a principal that Mr. Buford

have the conscious intent that the

crime [murder] be committed and

that he say a word or do an act

toward the commission or toward

the incitement .. .[{of the crime]."

428 So. 2d. 1389, 1390.

The Florida Supreme Court ruled that failure to argue

this issue did not constitute ineffectiveness because in

Florida the fact that an unlawful homicide occurs during

the perpetration of a sexual battery is sufficient to sup-

port a conviction for first degree murder without the nece-

ssity of proving specific intent that the murder be effected.

REASONS FOR DENYING CERTIORARI

QUESTION ONE

EFFECTIVE ASSISTANCE OF COUNSEL IS

DENIED WHEN, IN A CAPITAL CASE, JURY

INSTRUCTIONS WHICH OFFEND DUE PRO-

CESS AND CONSTITUTE REVERSIBLE

ERROR ARE NOT APPEALED.

Essentially, Petitioner is asking this court to grant

certiorari and rule that whenever appellate counsel fails

to raise an issue on appeal that he could have raised coun-

sel as deemed to be ineffective. Recently, as Petitioner

recognizes, this court had a similar issue: Jones v. Barnes,

77 L. Ed 2d 987 (1983). Im Jones this court opined that

appellate counsel mist be given the latitude to present the

issues which he, in his professional judgment, deems need

be raised without being hampered by being required to raise

all non-frivolous issues which his client desires.

Petitioner attempts to distinguish his case from

Jones via a footnote by arguing that his is a capital

case in which the issue which was not raised was not

only mr-frivolous but meritorious. The fallacy of that

distinction is that the Supreme Court of Florida specifi-

cally held the issue was without merit. In other words

the Florida Supreme Court said “even if you had raised

the issue you would not have won.” Petitioner cannot

argue that the Florida Supreme Court erroneously decided

that the issue was unmeritorious because it was one in-

volving state law. Barclay v. Florida, 77 L.Ed. 2d 1134

(1983), Alabama v. Evans, 75 L.Ed 921 (1983).

Consequently, we respectfully submit that it would

be an exercise in futility for this Court to grant certi-

orari on this issue. If this Honorable Court were to grant

certiorari and rule as Petitioner would want this court to

rule it would in effect be holding that appellate counsel

is ineffective when he fails to raise an issue, even in in-

stances where he would not have prevailed even if he had

raised it.

QUESTION TWO

WHETHER DUE PROCESS IS VIOLATED WHEN, IN A

CAPITAL CASE, A STATE APPELLATE COURT ISSUES

TWO OPINIONS WHICH ARE FACIALLY CONTRADICTORY

AND ARE BOTH ADVERSE TO PETITIONER.

In order to create a specious issue Petitioner attempts

to create contradictory rulings out of the two decisims of

the Florida Supreme Court by taking two statements made by

the Florida Supreme Court out of context.

Petitioner attributes the Florida Supreme Court with

having said in 403 So. 2d 943 (1:/81) that pe. itioner could

not be guilty of first degree murder if his testimony is

accepted (Petitioner's brief p. 16) and later in the sub-

sequent habeas opinion with saying that he could be guilty

of first degree murder even if his testimony is accepted.

That was not what the Florida Supreme Court said. That

court simply said that "[iJf the defendant's testimony

were accepted as creating a reasonable doubt he should not

be found guilty of murder .. .' Id at 953. The distinction,

which Petitioner refuses to recognize, is manifest. A de-

fendant's testimony even if accepted may not excuse him of

crime, but if it is accepted, as creating a reasonable doubt

of guilt, it most certainly will. The Florida Supreme Court

made the latter statement in response to the argument that

the reason the jury recommended life was because they had

accepted his testimony to the extent of creating a reasonable

doubt as to whether "fat boy" not he had killed the child.

The Florida Supreme Court was focusing its statement with res-

pect to whether the Tedder v. State, 322 So. 2d 908 (Fla.

1975) standards were met in overriding a jury recommendation,

not on whether Petitioner was or was not guilty of murder in

the first degree as an accessory.

Since the basic premise behind this question is faulty,

little would be gained in the way of deciding a case of

national importance by granting certiorari on this question.

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully Submitted,

torney

1313 Tampa Street, Suite B04,

a Trammell Buil

» Florida 33602

i ) 272-2670

CERTIFICATE OF SERVICE

I, CHARLES CORCES, JR., a member of the Bar of the Supreme

Court of the United States and counsel fo record for the State

of Florida, Respondent herein, hereby certify that on October 5,

1983, pursuant to Rule 33, Rules of the Supreme Court of the

United States, I served three copies of the foregoing Brief of

Respondent in Opposition to Petition for Writ of Certiorari on

Mr. David E. Weisberg, counsel for Petitioner herein, by

depositing such copies in the United States Post Office, Tampa,

Florida, with first class postage prepaid, properly addressed

to One New York Plaza, New York, New York 10004.

OCT 28 PAGE 15

Supreme Court, US.

FILED

CASE NO. 83-5329

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ROBERT LEWIS BUFORD,

Petitioner,

vs.

LOUIE L. WAINWRIGHT,

Secretary, Department of Corrections,

State of Florida,

Respondent.

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

DAVID E. WEISBERG

Fried, Frank, Harris, Shriver

& Jacobson

(A Partnership Which Includes

Professional Corporations)

One New York Plaza

New York, New York 10004

(212) 820-8018

ATTORNEY FOR PETITIONER

eee Vr eeeet et 6ST SE Oe

Respondent asserts that appellate counsel was not

ineffective in failing to raise the issue of the instruction

on principles/associates. Counsel was not ineffective, we

are told, because the Florida Supreme Court has held that

the instruction was correct as a matter of State law. There-

fore, appellate counsel could not have been ineffective in

failing to challenge an instruction which was proper.

There are two things wrong with respondent's argu-

ment. First, the Florida Supreme Court never considered whe-

ther the principles/associates instruction, considered together

with the requested instruction which the trial court refused

to give, met the standards of Florida law as set forth in

Bryant v. State, 412 So.2d 347 (Fla. 1982). Even a cursory

reading of Bryant compels the conclusion that the instructions

in the case at bar required the jury to make an irrebutable

presumption. The jury was required to presume that if Robert

Buford and Darrell Wilson acted together as associates in sex-

ually abusing the victim, then Robert Buford must have been

Wilson's associate when the latter killed the victim. Such a

presumption contradicts petitioner's trial testimony and violates

federal law. See Sandstrom v. Montana, 442 U.S. 510 (1979).

Secondly, even respondent concedes that what the

Florida Supreme Court actually held was that “the fact that an

unlawful homicide occurred during the perpetration of the sex-

ual battery is sufficient to support a conviction for first-

degree murder without the necessity of proving specific intent

that the murder be effected." (Brief in Opposition at 2.)

But the jury was given three theories on which it might convict

Robert Buford of murder:

(1) premeditated homicide;

(2) felony murder; or

3) murder by a principal (Darrell Wilson) with

whom Robert Buford had associated.

The fact that petitioner's testimony was, arguendo*, consistent

with a felony murder theory is irrelevant, when the question to

be addressed is whether the trial court committed reversible

error in its instructions on principles/associates.

The Court held in Sandstrom v. Montana, supra, that

jury is instructed as to alternative theories, the uncon-

stitutionality of any one of the theories requires that the con-

viction be vacated. Sandstrom is a case which is never mentioned

in respondent's Brief in Opposition. No wonder: the clear im-

plication of Sandstrom is that the instruction on principles/

associates, which required the jury to conclusively preseume (con-

trary to petitioner's trial testimony) that petitioner had asso-

ciated with Darrell Wilson when the latter killed the victin,

violated petitioner's rights to due process.

* As petitioner argues in Point II of the Petition for a Writ

of Certiorari, the most recent decision of the Florida Supreme

Court in this case facially contradicts its prior opinion.

The first opinion said that, if the jury believed petitioner's

testimony, petitioner could not have been guilty of first-de-

gree murder. The second opinion says that, because the testi-

mony is allegedly consistent with a felony murder theory, the

jury could have found petitioner guilty even if it believed

his tes’ imony. These two opinions are facially contradictory,

and both are adverse to petitioner.

Based upon the foregoing and upon the underlying

Petition For A Writ of Certiorari to the Supreme Court of Florida,

petitioner respectfully requests that the Court issue its Writ of

Certiorari to review the decision of the Supreme Court of Florida

in this cause.

Dated: New York, New York

October 17, 1983

Respectfully submitted.

15)

DAVID E. WEISBERG

Fried, Frank, Harris, Shriver

& Jacobson

(A Partnership Which Includes

Professional Corporations)

One New York Plaza

New York, New York 1000604

(212) 820-8018

ATTORNEY FOR PETITIONER

CERTIFICATE OF SERVICE

I, David E. Weisberg, counsel of record for petition-

er Robert Lewis Buford, and a member of the Bar of the Supreme

Court of the United States, hereby certify that, on October 17,

1983, I served one copy of the ennexed Reply Brief in Support of

Petition for A Writ of Certiorari to the Supreme Court of Florida

on the respondent, by mailing said copy, in a duly addressed en-

velope, with first-class postage prepaid, to responsent's counsel,

Charles Corces, Jr., Esq., Assistant Attorney General, 1313 Tampa

Street, Suite 804, Park Trammel Building, Tampa, Florida 33602.

I further certify that all parties required to be

served have been served.

=

jf

DAVID E. WEISBERG