# Petition — Buford v. Wainwright

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 956

## Text

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 . -
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 . = 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* 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

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served have

States,

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for petition-

ember of the Bar of the Supreme
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RECEIVED
AUG 31 1383

OFFICE OF THE ¢.
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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 =sresent

[ours om disect appeai of Ais death sentence
c@ing semied reasonacly effective assistance
const. amend. 7.

@e wil. address seticioner's risinal appeal,
petictis ~3 20t enticled =o 4 Selated appeal and
SOM@MBL= aM uNiawful act, aach .3 rosecution 2f serpetration 2f ,eing given secause peticioner claimec 274(1)

In emminal prosecution,
fer asked state witnesses on cross-
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
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

-_—

”

* *

*

ae eee

As

4

ee
=

--
-~-

SYDNEY C. NEIL, CSR. RPR
OFFICIAL court REPORTER
TENTH JUOICIAL cimcurr
BARTOW. FLORIDA 33830

th

~~

©

ho

=

an

op

“

hm

we
in

pushed me back into the yard so I didn't «now what
he was doing. I stand there for a while. Then
I fine out what ne was doing. He went to this
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.

SO 22 went La asiu Wen ae came back I thought

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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601

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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877

SYONEY C. NEIL, CSR, RPR erp 8 a
OFFICIAL COURT REPORTER 633.933-3130
TENTH JUDICIAL CIRCUIT
BARTOW. FLORIDA 33830

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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
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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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HALL OF JUSTICE SLOG.

SR. RPR

~
_—

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
x ‘4
> nls ws,
Slit +» :
ee
nae 4
ME ke

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1656%3A1. Public record. Not legal advice.