# Petitioners Reply Brief — Spaziano v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1686%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1984 - **Citation:** 468 U.S. 447 ## Text GeaGitAL wo, os® " co be go es ee No. 83-5596 | RECEIVED : IN THE | NOV 30 1983 SUPREME COURT OF THE UNITED STATES | Qrrsce OF THE CLERY 1 = SUPREME COURT, U.S OCTOBER TERM 1983 _en es eee eee ee SS SS SSS SSS ST HSS SS SSS SSS SSS SS SSS STS SS SSS = = =$5 perneConrt, U.S FILLED \o NOV 30 1983 ai JOSEPH ROBERT SPAZIANO, | a Petitioner, ALEXANDER L STEVAS | | CLERK = Vs. ro STATE OF FLORIDA, ‘as Respondent. “—<<—=ss2s222=2==2==2=2=2 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 A eee ne ne nc er EE OT ee ee ee nee —— one ee et th acct NR RETR ASL SIRE RIFE EO TRI SIERO SEITE. A STS CET IE NEE TE TABLE OF CONTENTS ee ee CS ca a anes oe a ee ee eae mle aa ATGUMENE cccccccccccicoccccccccsccccccceccces COBELUSION waeescsawe 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 =. _— ——————————— 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1686%3A4. Public record. Not legal advice.