Petitioners Reply Brief — Spaziano v. Florida

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ai JOSEPH ROBERT SPAZIANO, |

a Petitioner, ALEXANDER L STEVAS

| | CLERK

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ro STATE OF FLORIDA,

‘as Respondent.

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REPLY AND SUPPLEMENTAL BRIEF

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida

224 Datura Street/l3th Floor

West Palm Beach, Florida 33401

(305) 837-2150

MICHAEL A. MELLO

Assistant Public Defender

CRAIG S. BARNARD

Chief Assistant Public Defender

.

Counsel for Petitioner

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th acct NR RETR ASL SIRE RIFE EO TRI SIERO SEITE. A STS CET IE NEE TE

TABLE OF CONTENTS

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AUTHORITIES CITED

714 F.2d 1532

No.83-5596

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

JOSEPH ROBERT SPAZIANO,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

REPLY AND SUPPLEMENTAL BRIEF

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

The brief in opposition filed by Respondent merits a few

words in reply.

I. THE “BECK ISSUE"

Respondent's argument is premised on the Motion that "the

mere imposition of sentence has no bearing on the so-called Beck

v. Alabama issue." The State appears to contend that when the

validity of Petitioner's conviction was before this Court in

1980, this really was a capital case, even though "technically"

Petitioner's death sentence had, at that time, been vacated by

the Florida Supreme Court.

The short answer is that this was not a death case in 1980

simply because at that time Petitioner was not under sentence of

death. Where Petitioner was at that time before this Court only

for review of his conviction, since the Florida Supreme Court had

vacated his death sentence, hé@ is now seeking review of the

reimposed death sentence. It is precisely this new posture which

brings the issue presented squarely within the Eighth Amendment

Standards of reliability enunciated by this Court in Beck.

The difference between the posture of the case then and its

posture now is crucial. The proof of this proceeds in two

Stages: first, failure to instruct on lesser offenses raises

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special dangers of factfinding inaccuracy and unreliability and

second, this enhanced unreliability, though undersirable

noncapital cases, rises in capital cases to the level of being

infirmity of constitutional magnitude.

This Court has recognized

lesser-offense

interest

Keeble v.

Simple common

knowledge of huma

precarious dilemma is

jury that possesses a reas: ] as to one of the elements

of the offense charged, b Ou as the defendant's guilt

of a lesser offense that does no ul proof of the questioned

element, is likely, if m convicting the lesser

offense, to resolve its dou! in favor of conviction of the

greater. In the context of a murder t

likely to compromise its adherence

Standard rather than subju

is, Of course,

can never be totally

legal system. \ y ir i i it clear that the

need for reliability ise t th ] of constitutional

imperative. Death is ! and the infliction of death by

official choice must require a higher degree of reliability lan

we can practicably require of all other aspects

fact was the basis of Beck v. Alabama, where this Court made

clear that when the evidence established that the defendant is

guilty of “a serious, violent offense -- but leaves some doubt

with respect to an element that would Justify conviction of a

capital offense -- the failure the jury the ‘third

option’ of conviction of a lesser included offense would seem

inevitably to enhance the risk of an unwarranted conviction. Such

a_ risk cannot be tolerated when the defendant's life is at stake.

As we have often stated, there is a significant constitutional

difference between the death penalty and lesser punishments." 447

U.S. 625, 638 (1980) (emphasis added). "To ensure that the death

penalty is indeed imposed on the basis of reason rather than

caprice or emotion, we have invalidated procedural rules that

tended to diminish the reliability of the sentencing determina-

tion ... Thus, if the unavailabiity of a lesser included offense

instruction enhances the risk of an unwarranted conviction,

is constitutionally prohi

jury in a capital case.”

matters very much that

Beck

The jury,

which had considerable difficulty in reaching a verdict on guilt

after a number of hours of deliberation -- interrupted wit!

inquiry, reported deadlock and an "Allen" charge had

little difficulty in issuing an almost immediate sentencing

verdict of life imprisonment. The evidence Supporting guilt was

at best inconclusive -- there was virtually no evidence as to the

degree of the homicide and only weak circumstantial evidence that

Petitioner was actually involved in the offense -- yet the jury

was faced with a murder that was portrayed as brutal and provided

with only two options: guility of first degree murder or not

guilty. The jury did not have the "third Opt:on”" mandated by

Beck. Under these circumstances the jury exercised the only

reasonable option it had available: it found Petitioner guilty

of first degree murder but issued a Sentencing verdict of life

imprisonment. This life verdict, however, was overridden by the

trial judge who imposed the death sentence on Petitioner. The

Plorida Supreme Court affirmed the death sentence.

Accordingly, the danger of unreliability came true in this

case. The trial judge's instruction presented an imposible

Hobson's choice to the jury, a jury confronted with flimsy

evidence of first degree murder. The refusal to instruct on

lesser offenses prevented the jury from finding Petitioner guilty

of a ; offense, which it had the exclusive right to do and

for which there was a reasonbale construction of the evidence.

EG NOON OTS ee

Por example, the jury might well have believed that Petitioner

was somehow involved and knew about the homicide yet found the

evidence insufficient to Support the essential element of

premeditation. Since there were no lessers, the jury should have

acquitted, yet, as this Court has recognized, where a defenant is

guilty of some offense the jury is more likely to resolve its

doubts in favor of conviction, Petitioner's jury had only one

safeguard against the possibility of innocence of first degree

murder; to find Petitioner guilty but to recommend life. That

is exactly what his jury did.

II. THE JURY OVERRIDE AS APPLIED TO THIS CASE

Petitioner will rely upon the discussion in his initial

se THE FACIAL CONSTITUTIONALITY OF THE JURY OVERRIDE

Petitioner will rely upon his initial petition, except to

Challenge Respondent's contention that this issue has been

somehow waived. The single, out of context sentence in Peti-

tioner's Florida Supreme Court brief, upon which Respondent bases

its contention, is no more than an acknowledgment, also made in

Our certiorari petition, that "this Court has suggested that the

Override is constitutional." Petition for Certiorari Petitioner

at 24. Petitioner is aware that lower courts have read this

Court's decisions in Proffitt, Dobbert, and Barclay as fore-

Closing the issue. Id. Most recently, in Douglas v. Wainwright,

714 P.2d 1532, 1552-53 (llth Cir. 1983), the eleventh circuit

held that "whatever the merit of appellant's claim ... under the

decisions in Barclay, Dobbert , and Proffitt, the system of

overriding jury reconsiderations of life imprisonment is not

unconstitutional." It is for this reason that only this Court can

revisit the issue. Petitioner respectfully asks this Court to do

just that.

Moreover, it is clear from Petitioner's motion for rehearing

before the Florida Supreme Court that the facial validity of the

jury override was in issue. Petitioner there argued:

In permitting the death sentence to be imposed

over the jury's life verdict on the basis of

information not presented to the jury, this

Court has deregated the constitutional role of

the jury in Plorida's capital sentencing

system. Pindings regarding the presence or

absence of aggravating or mitigating circum-

stances are findings of fact as to which a

defendant has a Sixth Amendment right to trial

by jury. By allowing a death sentence to be

imposed upon facts not presented to the jury,

the Sixth Amendment guarantee is abrogated. The

principle that death sentences may be imposed

only through the intervention of a jury is

fundamental to our jurisprudence and provides

an essential assurance against disproportion-

ality, excessiveness and arbitrariness in

capital sentencing. Cf. Lockett v. Ohio, 438

u.S. 586, 609 (1978) (reserving the question

regarding the constitutional need for jury

sentencing).

The issue of the facial validity of the override was

squarely presented to the court below.

CONCLUSION

The Petition for Certiorari should be granted.

Respectfully Submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Street/l3th Floor

West Palm Beach, Florida - 33401

(305) 837-2150

MICHAEL A. MELLO

Assistant Public Defender

a ‘

BY jas.

CRAIG S. BARNARD

Chief Assistant Public Defender

Counsel for Petitioner

83-5596

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

depositing

postage prepaid, addressed as follows:

Honorable Richard W. Prospect

Assistant Attorney General

125 North Ridgewood Avenue

Daytona Beach, Florida 32014

arties required to be served have been served

day of November, 1983.

CRAIG S. BARNARD

Chief Assistant Public

15th Judicial Circuit

224 Datura Street/l3th

West Palm Beach, Florida

(305) 837-2150

Ovtice - Suprame Court, U.S

ILED

FEB 23 j994

| ALEXANDER L. STEVas

_ ERK

IN THE

Supreme Court of the United States

\) EI ERM, 1LY¥8o5

On Writ Of Certiorari To The

Supreme Court Of Florida

BRIEF FOR PETITIONER

-

Public Defender

224 Datura Street 13th Floor

West Palm Beach, Florida 33401

305 837-2150

». BARNARD?

f Assistant Public Defender

MICHAEL A. MELLO

Assistant Public Defender

Attorney of Record

PRESS OF BYRON S ADAMS PRINTING. ENG WASHINGTON. De

QUESTIONS PRESENTED

1. Whether a death sentence imposed after :

of guilty of a capital offense violates the Eig

and the Due Process Clause where the jury '

under the state statute of limitations from

dict of guilt of noncapital lesser included of

evidence would have supported a verdict on

2. Whether a trial Judge's override of a jury’s factuall)

based decision against the death penalty contravenes, in al]

cases, the Fifth, Sixth, Eighth and Fourteenth Amendments?

3. Ifthe override ofa jury's life verdict ‘

its face, are the Florida standards for the override appli

manner that discounts the jury’s consideration of mitigatin

factors and that is so broad and vague as to violate the

stitutional requirement of reliability in the determination t

death is the appropriate punishment in a particular case’

TABLE OF CONTENTS

;UILT OF LESSER INCLUDED OFFENSE

EVIDENCE WouLD Have Supportep Svucu .

j ENDMENT ANI

DICT, VIOLATES THE EIGHTH Am

Due Process CLAUSE

A. Beck Requires Reversal Of Mr. Spaziano’s

Death Sentence

B. The Intolerable Uncertainty And Unrealiabil-

ity Is Not Excused By The Statute Of Limita-

tions ,

A TRIAL JuDGe’s OverRIDE Or A Jury's FAcTUALL’

BaseD Decision AGAINST THE DEATH PENALTY

Must, In ALi Cases, VioLate THE Firtu, Sixtu,

E1GHTH AND FOURTEENTH AMENDMENTS .......

A. TheJury Override Should Be Measured By The

Evolving Standards Concerning The Imposi-

tion Of The Death Penalty '

The Objective Indicia Are That Contemporary

Values Hold A Jury’s Life Sentence Inviolate

Independent Judicial Judgment Confirms The

Unacceptability Of The Jury Override

The Countervailing Considerations Are In-

sufficient To Justify The Override Procedure

1. Florida did not have a compelling reason

for the override procedure

2. Jury nullification is not a factor

Table of Contents Continued

Page

3. The insufficiency of judicial expertise in

capital sentencing

III. THe FLoripa STanparps For THE OVE

MITIGATING Factors AND TuaT Is So Broap ANI

VAGUE As To VIOLATE THE CONSTITUTIONA!

REQUIREMENT OF RELIABILITY IN THE DETERMINA

TION THAT DEATH Is THE APPROPRIATE PUNISHMENT

In A PARTICULAR CASE

CONCLUSION AF

APPENDIX A. Statutory Provisions Involved

APPENDIX B. Florida Jury Override Cases

APPENDIX C. Judge/Jury Roles in Capital Penalty

Determinations: Survey of National

Legislative Practice

vDIx D. Utah Executions and Death Sentences

iv

TABLE OF AUTHORITIES

CASES:

Adderly v. Wainwright, 272 F.Supp. 530 (M.D. Fla.

1972)

Apodaca v. Oregon, 406 U.S. 404 (1972)

Baldwin v. New York, 399 U.S. 66 (1970)

Ball v. State, 204 So.2d 523 (Fla. 3d DCA 1967)

Ballew v. Georgia, 435 U.S. 1223 (1978) ........... 21,:

Barclay v. Florida, __. U.S. ___, 108 S.Ct. 3418

Barclay v. State, 343 So.2d 1266 (Fla. 1977) 49, 50

Beck v. Alabama, 447 U.S. 625 (1980) passim

Blankenship v. State, 308 S.E.2d 369 (Ga. 1983)

Bolender v. State, 422 So.2d 833 (Fla. 1982)

Boykin v. Florida, 408 U.S. 940 (1972)

Brown v.

Brown v.

Brown v.

Buford v. State, 403 So.2d 943 (Fla. 1981)

Bullington v. Missouri, 451 U.S. 430

(1981)

Cannady v. State, 427 So.2d 723 (Fla. 1983)

Chaney v. State, 267 So.2d 65 (Fla. 1972)

Coker v. Georgia, 433 U.S. 584 (1977)

Dobbert v. Florida, 432 U.S. 282 (1977)

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

Dobbert v. State, 375 So.2d 1069 (Fla. 1979)