Appendix — ANTONE v. STRICKLAND (No. 83-5644)

Supreme Court brief1983

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wo. 83-5644 RECEIVED

IN THE

SUPREME COURT OF THE unITED states} OCT 26.1983

Orricc ur s

October Term 1983 supaeur omen

teeta tn ee ee ee ee a a a a a a a a a a a a a a a a a a |

ANTHONY ANTONE,

Petitioner,

-Ve-

CHARLES G. STRICKLAND, JR., Superintendent,

Florida State Prison, LOUIE L. WAINWRIGHT,

Secretary, Department of Offender Rehabilitation,

State of Florida; JIM SMITH, Attorney General,

State of Florida,

Respondents.

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PETITION FOR WRIT OF CERTIORARI

fO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

APPENOIX

APPENDIX

OPINION OF THE ELEVENTH CIRCUIT

COURT OF APPEALS

CHAPTER 921.141, FLORIDA STATUTE (1975)

ANTONE v. STATE, 355 So.2d 777 (Fla. 1978)

ANTONE v. STATE, 382 So.2d 1205 (Fla. 1980)

ORDER AND FINDINGS DENYING MOTIONS

FOR POST-CONVICTION RELIEF

ANTONE v. STATE, 410 So.2d 157 (Fla. 1982)

PETITION FOR WRIT GF HABEAS CORPUS

TRANSCRIPT OF ORAL ORDER OF DISTRICT COURT

ORDER OF ELEVENTH CIRCUIT REQUESTING

FURTHER FINDINGS OF FACT AND LAW

DISTRICT COURT's MEMORANDUM OF DECISION

ORDER GRANTING STATE MOTION FOR REHEARING

ORDER DENYING REHEARING IN ELEVENTH CIRCUIT

MOTION TO SUPPRESS

MOTION FOR POST-CONVICTION RELIEF IN STATE COURT

EXCERPTS FR PPELLANT'S BRIEF

TRANSCRIPT OF PENALTY PHASE

COURT'S FINDING IN SUPPORT OF DEATH PENALTY

EXCERPTS OF APPELLANT'S BRIEF

DEMAND FOR DISCOVERY IN STATE COURT

TRANSCRIPT OF TESTIMONY OF ROBERT E. BRUNS

AT HEARING ON MOTJON FOR ROST-CONVICTION RELIEF

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IT IS SO ORDERED.

In determining whether a jury instruc-

tion is erroneous, entire charge must be

1. Criminal Law @=622(1)

examined to determine whether issues and

law presented were adequate

am ee et a oe

— ——_ +o

ee 1 Oe - eet tee

2 Hebess Corpes © 3%1)

Court of Appeals was barred from oon-

sdering merits of habess corpus petiLoners

clasm comeermng jury imstruction on mut

geting factors im capital murder cas Smet

petitioner had not shown thet jury was

dened wee of any sonstatuler) miligsting

factors m deewding to recommend death

penalty and faded to edvance suffiment

cause for failure to object ww the instruc-

towns et trial

1 Habeas Corpes & 3&3)

Hab..- corpus petiuoner who conten!-

ed that Plorids death penalty statute was

unconstitutional as epphed om ha case fled

to show that the facts were so clearly unde-

serving of capita) punishment tha: to im

pose it would be patently unjust and would

shock the conseence such as would warrant

federal court intervention 2 USCA

§ 2H

4. Habeas Corpus &45.1(4)

In light of state court's conclusion that

an error in finding challenged aggravating

circumstance would not invalidate imposi-

tron of death sentence, Court of Appeals, in

hateas corpus proceeding, declined to en-

gage in collatera! review of the aggravating

factor upon which affirmance of death sen-

tener was not predicated

5. Habeas Corpus @45.1(4)

Florida Supreme Court's siatenent

that nonrecord information did not affect

judgment of reviewing judges in capital

cases foreclosed petitioner's habeas corpus

5 Habeas Corpus @85.1(2)

Habeas corpus petitioner failed to over-

nie presumption of correctness of state

rt's finding that there was no suppres-

sion of evidence by prosecution 2 US

CA. § 254d)

7. Habeas Corpus @85.5(11)

Evidence failed to sustain petitioner's

cleim that he was denied effective assist-

ance of counsel at voir dire and penalty

hase of his trial

* Honorable George C Young. U S. District Court

juctye tor the Middle Dustrict of Florida slung

—

of petitioner's claim that prasecu-

Lor impermas Oly chelienged prospective

juror or bass that jurer had voted

Before FAY and-KRAVITCH, ‘Circuit

Judges, and YOUNG,* District Judge.

PAY, Cirewit Judge:

Anthony Antone, convicted of firs de

gree murder and upon a fecommendation of

the jury in accordance with Fla Stat Sec-

tion 921 141 (1974), sentenced to death, filed )

& petition for writ qf habeas corpus in the

United States District Court pursuant to 2

U.S.C. Section 2254. The district court de

nied the relief requested. On appeal, An-

tone advances six contentions: 1) that the

Judgment and sentence of death is contrary

to the Eighth and Poorteenth Amend-

ments; 2) that the Florida Supreme Court

in reviewing petitioner's sentence unconsti-

tutionally considered extra-record material;

3) that the prosecutor's nondisclosure of a

witness and statement violated the Sixth

by designsvon

’

tioner arranged the contract murder of

paid $1,500 “front money” before the mur-

der and between $7,000 and $8,000 after the

myrder -

After Antone’s ennviction and sentence of

death on August 27, 1976, he appealed to

the Florida Supreme Court which remanded

the case to the trial court to determine

vbether there had been « violation of Bra-

dy v. Maryland, 873 US 83, 83.8.Ct 11%,

10 L.Ed.2d 215 (1963)! Antone v. State,

855 So.2d 777 (Pia. 1978). After « hearing,

the trial court determined that there had

not been a Brady violation. On March 27,

1980, the Florida Supreme Court affirmed

petitioner's conviction and sentence. An-

‘tone y. State, $22 So2d 1205 (Fila 1980)

The United States Supreme Court denied «

petition for writ of ceruoran. Antone v.

706 FEDERAL REPO’

FR 24 SERIFS

Sute, 49 US 913, 01 SCL Bi &

L.E4.2d 14) (1980)

The Governor of Florida signed « Death

Warrant requiring petitioner's execution.

Petitioner then filed two motions for post

conviction relief in the Circuit Court for

Hillsborough County, Florida’ The court

held an evidentiary hearing and denied the

motions. The petitioner appealed to the

Florida Sapreme Court which affirmed the

denial of the motions, denied a motion for

stay of execution and petition for error

eoram nobis. Antone v. State, 410 So 2d

lu7 (Pia. 1982).

Petitioner then filed a petition for writ «’

habeas corpus in the United States District

Court for the Middle District of Flonda

The district court denied the petition but

granted a stay of execution pending appeal

We remanded the case back to the district

court requesting more complete findings of

fact and conclusions of law. The district

coért entered its Memorandum of Decision

on February 18 1982'

1. IMPOSITION OF THE DEATH SEN-

- TENCE

A. JURY INSTRUCTIONS ON MITI-

GATING FACTORS

During the penalty phase of Antone’s tri-

al, the state trial judge, without objection

from either party, instructed the jury on

aggravating factors, and then stated “the

mitigating factors which you may consider

are these ....” and listed the seven miti-

gating factors enumerated by Fla Stat Sec-

tion 921.141 (1975)! Petitioner now argucs

treme duress or under the substantial Gormuna

tion of another person; 6) the capacity of the

defendant to appreciate the criminality of his

to conform his conduct to the re

ANTONE +. STRICKLAND ~

_ ae 708 Fas 1eRe (1888)

that thus instruction impliedly limited the

jury's consideration of igating cireum-

stances in contravention of Lockett v. Ohio,

458 US. 586, 98 S.Ct 2054, 57 LEd.2d 973

(1978). Relying on Washington v. Watkins,

655 F.2d 1346 (Sth Cir.1961), cert denied,

456 U.S. $49, 102 S.Ct. 2021, 72 L.Ed2d 474

(1982), petitioner contends that the jury

was effectively precluded from considera-

tion of any non-statutory mitigating fac-

tors

Antone did not object to the jury instruc-

tion at trial or on direct appeal. Florida

Rules of Criminal Procedure, Rule 3.390(d)

(1973) specifically provided that jury J”

structions must be objected to before the

jury retires to consider. its verdict. The

state therefore argues that Antone is in

procedural default and that federa! court

consideration of the jury instruction in &

halewas corpus proceeding is barred by

Wainwright v Sykes, 433 US. 72, 97 S.Ct

2497, 53 L.Ed.2d 994 (1977). In Sykes, the

United States Supreme Court held that s

state prisoner must demonstrate “cause and

ore judice” in order to advance in 8 federal

habeas corpus proceeding a claim barred

from consideration by a valid state proce-

The Supreme Court recently

reaffirmed unis principle in Engle v. Isaac,

45% US. 107, 162 S.Ct. 1558, 71 L.Ed 24 783

19922), stating that “any prisoner bringing 8

constitutional claim to the federal court-

house after state procedural default must

demonstrate cause and actual prejudice be-

tore obtaining relief” 456 U.S at 129, 102

dural rule

1.79

pole

SCt at

Antone argues that he was excused from

nyecting at trial because the law at that

sume indicated that only statutory mutugat-

ng corcumstances could be considered and

Lavkett v Ohio was two years away. An-

s argument that counse! could not rea-

ibly be expected to anticipate the prob-

4 Paragraph 13 of the Motion to Disrruss the

ledketment filed by Antone’s counsel states as

yrounds for a dismissal of the indictment Uhat

bs lmatong the arcumsiances in miugat.on as

Srluneated m FS Section $21 M4, the Statute

conudes for cruel and/or unusual pumshment

“olation of the Eighth and Fourteenth

Amendment

{

ett

Henderson ¥. Kibbe, 431 US. 145, 97 8.Ct

1730, 52 LEd2d 208 (197T)* (citations

omitted) In making such a determination,

law presented to the jury were adequate.

Davis v. McAllister, 681 F 2d 1256, 1260 (5th

Cir.1980), cert. denied, 452 US. 97, 101

S.Ct 3085, @ LEd2d 409 (1981)

1538

the jury the “justice” of one codefendant

plea bargaining for s thirty-five year sen-

tence and another defendant, petitioner, be-

sentence less than death” 482 U.S. at 604,

96 S.Ct at 2065. Brain surgery was not

proffered at trial,* but even if it had been,

the jury would not have been precluded

from considering it by the court's instruc-

tions.’

[2] Antone has not shown that the jury

was denied the use of any nonstatutory

mitigating factors in deciding to recom-

mend the death penalty and thus the actua!

prejudice test is not met Further, Antone

bas not advanced sufficient cause for the

failure to object to the instructions st trial

Therefore, Wainwright v. Sykes bare our

comsideration of the merits of Antone’s

claim concerning the jury instruction on

mitigating factors

B. DISPARITY IN SENTENCING

Antone relates that of the four persons

shown tc have been involved with the mur-

der of Richard Cloud only one, petitioner,

received the death penalty.’ Based on this,

Antone contends that the Florida death

penalty statute is unconstitutional as ap

plied in this ease. ,

nant participant, the master criminal mind

and mover of the entire olan and softed

(sie) act.” (R State Proceedings, Vol. V1!

at 928) On direct appeal, the Florida Sv-

106 FEDERAL REP FER, 24 SERIES

preme Court found that petitioner was “the

mastermind of this operation He supplied

the gun, paid the money from his pocket,

and pressured Haskew to complete “he task.

His participation cannot, under any view of

this record, be termed minor Without Ac-

tone’s participation, the murder would not

have come to fruition.”

$82 So.2d 1206, 1216 (Pia 1980).

{3} It is not the role of the federal

courta in Section 224 proceedings to retry

the circumstances contributing to the

state's imposition of the death penalty.

Spinkellink v. Wainwright, 578 F.2d S82,

605 (5th Cir.1978). Ont; if a petitioner can

show “that the facts of his case are 80

clearly undeserving of capital punishment

that to impose it would be patently unjust

and would shock the conscience” might fed-

eral court intervention be warranted /d

at 606 n 2 Petitioner Antone has made

no such showing

C THE AGGRAVATING FACTOR

“ESPECIALLY HEINOUS, ATRO-

CIOUS OR CRUEL”

" Antone contends that the heinous, atro-

cious and cruel aggravating factor is, a

now construed, unconstitutionally vague

and overbroad. The state tria! judge found

that the murder cf Richard Cloud was “par-

ticularty a heinous, crue! and vicious erime,”

(R. State Proceedings, Vol. VII at 9.7), but

did not elaborate. On appeal, the Florids

Supreme Court stated that there “may be s

question” as to whether heinous, atrocious

and cruel was an appropriate aggravating

Greumstance in petitioner's case Antone

y. State, 382 So2d 1205, 1216 (Fila. 1990).

The court, however, concluded tha! because

it approved of the other three aggravating

& As relisted by the petitioner, Benjamin Gil

ford. the confessed triggerman comunitted sur

Antone v. State, .

a ——— anne

—_— ~~ - -

circumstances found by the trie! judge and

of the fact that the trial judge found no

mitigating factors, “an error ia finding this

aggravating circumstance does not invali-

date the imposition of the death sentence.”

Id. at 1216

[4) Antone does not present a situation

controlled by S:epnens v. Zant, 631 F.2d 397

(Sth Cir.1980), reh. demed and modified, 648

F.2d 446 (5th Cir.1981), certified to the Su-

preme Court of Georgia, 456 US. 410, 102

S.Ct. 1856, 72 L.Ed2d 222 (1982). In Ste

phens, the state supreme court ruled that

one of the aggravating circumstances

presented to the jury was unconstitutional-

ly vague. In Antone, the Florida Supreme

Court intimated that the facts of Antone’s

case might not be encompassed by the judi-

cs! interpretation of the statutory aggra-

vating circumstance. We have recently

considered the effect of the Florida Su-

preme Court's invalidation on non-constitu-

tional grounds of one of several aggravat-

ing factors in the absence of mitigating

factors. In Ford v. Strickland, 696 F 2d 804

(ith Cir.1983) (en banc), we noted that

althouga “the precise impect of the Su-

preme Court's recent actions in Stephens

cannot be known at this juncture,” “when

there are proper state law premises, a death

sentence may be sustained by a reviewing

court so long as at least one cf a plurality

of statutory aggravating circumstances is

valid and supported by the evidence.” Id

at 814. We reasoned in Ford that because

the sentencing judge found no mitigating

circumstances and five of the statutory ag-

grsvating circumstances found were up

held, “the [Florida Supreme) court logically

presumed the weighing process would have

reached the sare outcome even had the

snMiencing court not added to the scales

those aggravating circumstances found im-

jermissible.” This reasoning is equally ap

plicable in Antone’s case. We therefore

decline to engage in the collateral review of

s factor upon which the affirmance of An-

tone’s death sentence was not predicated.

As in Ford, however, we note that the

United States Supreme Court has accepted

certiorari of Barclay v. Florida, 411 So.2d

1310 (Fia.1982), cert granted, — US

Brown v. Wainwright, $92 So2d 1327 (Fla.

1981), cert. denied, 454 US. 1000, 102 S.Ct

542, 70 L.Ed.2d 407 (1981). -

[5] Antone again raises the issue of the

lil THE

AND STATEMENT

;

rit

dence by the prosecution. This finding con-

cludes the issue under 28 USC. Section

22544) and Sumner v. Mata, 49 US. 539,

10) S.Ct. 764, 66 LEd2d 722 (1981).

IV. EFFECTIVE ASSISTANCE OF

COUNSEL

Petitioner contends he was denied effec-

tive assistance of counse! at the voir dire

and penalty phase of his trial Again, the

petitioner presented these claims of ineffec-

tive assistance of counse! to the state court

in motions for post conviction relief under

Florida Rules of Criminal Procedure, Rule

3.850. The state trial judge beld a hearing

and found that petitioner was represented

by reasonably competent and effective

counsel. The Florida Supreme Court up-

held the trial court Antone v. State, 410

So.2d 157, 163 (Fla 1982).

review of the district court's findings and

& Payton v. New York was decided

1980. an giibune'o ommaeue aahanetaen

his case and its merits need not be com

sidered

VI. WARRANTLESS ARREST IN THE

HOME

[9] The petitioner was arrested in hs

home without an arrest warrant prior to hs

trial in 1976 In 1980, the United States

Supreme Court’ held that the Pourt®

Amendment “prohibits the police from

making s warrantless and nonconse nsus,

New York, 445 U.S. $73, 576, 100 S.Ct. 1371,

1975, 68 LEd2d 6399 (1980) In United

States v. Johnson, — US. ——, 102 SCt

2579, 73 L.Ed.2d 202 (1982), the Supreme

Court held that Payton is to be applied

retroactively to all convictions that were

not yet final at the time the decision ws

rendered’ The Court did not address the

retroactive reach of Payton to those cases

which may still raise Fourth Amendment

was affirmed by the Florida Supreme Court o*

49 L.Ed 2d 1067 (1976), the only cases

ing challenges on collateral

federal habeas cases in which the state has

failed to provide s state prisoner with an

opportunity for full and fair litigation of his

claims” — US _—, a BD, 102

[

Fe!

The

correctly found that the state

petitioner with a full and fair opportunit

to litigate his claim in the state courts

consequently the federal courts are

ed from considering the claim on a peti

for writ of habeas corpus under

Powell.

Having considered each of the petiti

er's claims and finding each of them to

without merit, the denial of habeas corpus

relief under 28 U.S.C. Section 2254 is AP-

FIRMED and REMANDED.

Rae

;

KRAVITCH, Cirecit Judge, concurring

specially:

In my view the majority opinion fail to

explore adequately the relevant facts of the

case and to provide sufficient, reasoned

analysis of the claims presented. Because

of this concern | write separately on several

issues to record my reasons for concurring

in the judgment, but not the opinion of the

maljoriiy

JURY INSTRUCTIONS ON

MITIGATING FACTORS

(MAJORITY’S ISSUE IA)

, use and Prejudice

As indicated in the majority opinion, An-

tone’s rial counsel [giled contemporancous-

March 27. 1980, rehearing denied on May 21,

1980 The petitioner did not raise the Payton

issue on durect appeal

1 Pettvoner-appellant argues Uthat the cause and

prejucice standard of Sykes should nat be ap

phed to procedural default arisimg in the con-

text of death ty cases where the price of a

procedural default. precluding review, may be a

suman bfe He argues tus is especially true

where the default arses in relation to an un

foreseen development in the law. eg. Lockett

v Otwo. 438 US 586, $6 S.Ct 2954, $7 LEd 2d

973 ('978) To support this argument, he relies

;

rele

SEs

157% a @.

on the language of the Supreme Court in Engig —

————

{2 ; 16 FEDERAL REPOR” 9. © SERIES

prejudice, is inapplicable to analysis of «

Lockett violation. Hendersoa, which in-

volved a jury charge or causation in a non-

capital case, held that the erroneous charge

was of constitutional magnitude only if it

“so infected the entire trial” that « due

process violation occurred. Id.

A Lockett violation, however, is a direct

violation of the eighth amendment as ap

plied to the states through the fourteenth

amendment. Lockett v. Ohio, 438 US. 586,

605, 98 S.Ct BS, 265, 57 LEd 2d 973

(1378) Im Lockett the Supreme Court held

that a sentencer must not be precluded

from considering as 8 mitigating factor any

evidence of the defendant's character or

record or the circumstances of the offense

Lockett v. Ohio, 438 US et 604-05, 98 SCL

at 2964-45. If any relevant mitigating evi-

dence proffered by the defendant is pre-

cluded by erroneous instructions, therefore,

2 In acknowledging my objection to use of the

Henderson v Kibte.standard, the majority

However, Antone has argued Uys issue im Lhe

nature of & two prong attack and we have

attempted to review & as such We are

sware of no Supreme Court authority ind-

cating to the contrary

Maj Op at note S. ht is not clear to which

“two prongs” the majority refers, the issues of

“cause” and “prejudice” or the issues of “pre}

udice” and the “mertts™ of the Lockett claim.

Assuming the former, although | beibeve refer

ence to Lockett must be made in determining

how both “cause” sad “prejudice” are defined

in the context of « Lockett claim, the two

issues are and should be treated as two sepe-

rate prongs See text supra. ot 1537. The

fact Usat the same case affects the analy-

as of two separate issues. however, makes

those two issues no less G@uinct if the

majority refers to the dastunction between ana)

an eighth amendment violation is presented

and provides a basis for habeas relief Con-

sequently, the majority's “infected the en-

tire trial” due process analysis, relying on

Henderson v. Kibbe is irrelevant, unneces-

sary, anc “mproper’

Having quoted the Henderson v. Kibbe

standard, the majority proceeds to spply 8

different test, one that examines the merits

of the Lockett claim, and concludes that

“(there was nothing in the jury instruc-

tions that precivded the jury from consider-

ing [evidence proffered in mitigation)”

Maj. Op. ai isso. I disagree with the

reference to the merits of appellant's claim.

see note $ infra, and while the ma-

jority of this pane! cannot be faulted for

ying the reasoning.@f Ford v. Sinci-

EAGAN TEAEEE De BEPMTEL

ala nh

ll eRe Sap etal

; ti hy i

tic & t

ANTONE vy. STRICKLAND | : . ; i

—

analyzing cause and pr judice only, I be

heve we must assume the violation oo

curred, see note 3 -Jpra, the only relevant

inquiry in analyzing “prejudice” under the

cause and prejudice standard when the alle

gation is a Lockett violation, is whether any

nonstatutory, allegedly mitigating evidgace

was proffered at trial and, if so, «bether

that evidence was of a type, consideration

of which the Supreme Court held in Lockett

must not be precluded, ie was the evidence

relevant lo defendant's character, bis record

or the circumstances of the offense. Lock-

ett v. Obv, 48 US at 605, 98 S.Ct. at 2965.

In the instant case, apparently the only

nonstatutory mitigating evidence proffered

by appellant was the discussion of the dis

parity of his potential death sentence and

his co<defendant's thirty-five year penalty.‘

Whether or = consideration of the evi-

dence of disparity of sentences would have

affected the deliberations cf the advisory

jury or trial judge, is not for federal appel-

\ale judges, reviewing a habeas petition, to

speculate. See Eddings v. Oklahoma, 455

US. 104, 102 S.Ct 869, 877, 71 LEd2d+4

(1982) (“On remand, the state courts must

consider all relevant mitigating evidence

and weigh it against the evidence of the

aggravaung circumstances. We do not

weigh the evidence for them”) (emphasis

supplied) Cf Presnell v. Georgia, 439 US.

14, 16-17, 99 S.Ct 235, 236-37, 58 LEd2d

207 (1978); Cole v Arkansas, $33 US. 196,

6 S.Ct 514, 92 LEd 644 (1948) (as dis

cussed in Ford v. Strickland, 696 F 2d 804 at

869-70). Thus, 1 would find that the actual

prejudice prong of the cause and prejudice

standard is satisfied

jury Instruction was erroneous bu proceeded

on the assumption Usat the instruction was in

No prejudice was found because there

“as Strong evidence of mabce in the record

Frad) sever comended that he acted

malice, ard the findings that were required to

convet under the instruction that was given

“ere mocompatidie with « finding of the lesser

charge of manslaughter The Court theref

fownd Uhat the federal habeas court was

cluded from reaching the merits of

claw hat the instruction given was erroneous

astomahce id ot 174-73. 102 S.C at'1597-

98 71 LEG 2d ot 6H

the fair and full bearings in the world could

not correct the core legal flaw.

In denying Antone's Brady claim, the

state courts and the federal habeas court

~ I am troubled by the developing pattern of

addressing the merits of habeas claims while

purporting to resolve and considering argu

ments and suthority onty relevent to the “pre}-

udice” sue | am concerned the! in Asure

Cases Utigants and the court will apply these

Gscussions as p-ecedem for resotution of the

merits of Lockett claims raised on hebees

4 Although eppeflant alleges the tstructions

Ber prechaded consideration of his priar brai>

Surgery, no evidence relevant to this issue wes

profiered.

—— ee ta

L..

<imm o<acecure

tor to have ‘information which may be reie-

vant to the offense charged, and to any

defense with respect thereto.”” Antone v.

State, 410 Sod at 162, quoting Rule 3.220.

“Under my reading of Brady and its proge-

ny, see United States v. Agurs, (27 US. 97, ~

6 S.Ct 2992, 49 L.Ed 2d 842 (1976); Giles

v. Maryland, 336 US 6, 87 SCt 798, 17

L.E4.2d 737 (1967), the state's knowledge or

assessment of the exculpatory or nonexcul-

patory nature of the evidence is irrelevant

to the analysis of the type cf case before

“ua* Only the state's knowledge of the er-

istence of materia] information, exculpatory

or not, is relevant. United States v. Agurs,

In United States v. Agurs, the Court set

forth the three different situations to which

the Brady rule could apply. -/d at 2397.

The first is where s prosecutor uses testi-

mony which he knows or should have

known was perjured In such a case >

strict standard of materiality is xpplied. Lf

& The prosecutor's knowledge of thé erculpato-

ry sature of the evidence is relevent in ondy one

stuatien idenufied infra at note 1.

& Under the standards of Lockett v. Ohio, appli

cable today the informmauon surely was maters-

al to Brady s sentence.

epecific

matter of such a request is material, «

indeed if « substantia! basis for claimir

materiality exists, it is reasonabi- to requir

the prosecutor to respond either by furni!

ing the information or by submitting th

problem to the trial judge.” Id. (emphas

added). In this situation, 4 in the first, tb

test of materiality is very strict “Wh

for specific materia!, has been made.

ed States v. Agurs, 9% S.Ct at 2399. Her

only if theundisclosed information is excu

patory and is sufficiently material to hav

7. i os only in this situation where the proser

"s knowledge of the exculpatory nature «

So,

ANTONE v. STRICKLAND

affected the result of the trial will a new

trial be warranted Jd. at 2602

We must determine into which of the

three Brady situations the present case

falls. °

In my opinion Antone's attorney made 8

specific request for information. In s pre

trial demand for discovery, counsel, tracing

the language of Pia RCrimP. $220, re

quested: “The names and addresses of all

persons known to the prosecutor to have

information which may be relevant to the

offense charged, and to any defense with

respect thereto.” All that was required of

the prosecutor to comply with the request

was to examine his files on the Antone case

and compile a list of the names and address-

cs of all persons related to the investiga-

tion While the request may have been

broad, depending on the number of sames

in the file, as in Brady “the request was

specific It gave the prosecutor notice of

exactly what the defense desired.” United

States v. Agurs, 9% S.Ci at 2399. The

significant distinction between s general

satel a specific request for Brady purposes @

that » specific request docs not require the

prosecutor to make a value judgment as to

xculpatory nature or degree of materi-

ality of the requested information. In con-

trast, where there is no request or “merely

» general request for exculpatory matter,”

id, the prosecutor must assess whether any

particular material is exculpatory. To an

extent ths requires the prosecutor to ana-

lyte the evidence from the defendant's per-

spective, a role contradictory to the prose-

estor’s a@versarial role See Brady v.

Var) land, 8&3 S.Ct at 1197, discussing pur-

of principle of Mooney v Holohan, 34

US 163, 55 SCt $40, 79 LEd 791 (1985).

Accordingly, only when, evaluated in retro

spect.’ the evidence us acijudged to have

been exculpatory and material to the de-

gree that it is likely to have affected the

result will « new trial be ordered

§. The exculpatory nature and materiality of the

evidence must be judged in retrospect because

the issue is not the prosecutor's culpebility but

the fairness of the trial. United Sutes v

agurs, 96 SCL at 2400-01

been mitigating.in the penalty phase be-

cause it would have refuted the evidence

that he was the “mastermind” of Cloud's

killing. The state court explicitly relied on

the fact that he was the “mastermind™ in

imposing the desth penalty. Antone v.

State, 410 So.2d at 161, Antone v. State,

$82 So.2d at 316.

During the guilt phase of the trial An-

tone testified that he had no involvement

the middleman was not new evidence; that

fact had been established during the course

af the origina! tial testimony. Antone was

a middleman who organized, set up, and

masterminded the actual killing.” Antone

likelihood that it “might have affected the

10. Section 2254(d) reads as follows

106 FEDERAL REPORTER, 7’ SERIES

outcome of the [sentence)” United States

v. Agurs, 4277 US at 104, 96 SC. at D8

Therefore, for reasons different from

those of the majority, | concur in the denia!

of habeas relief on the Brady issue.

I note further, however, that I perceive a

fundamental misapplication of the dictatcs

of 28 USC. § 254d) and Sumner v. Mata.

49 US. 539, 101 S.Cu 764, 66 LEd 2d 722

(1981)

The majority states “the district court

found that petitioner could not overcome

the presumption of correctness set forth in

2% USC. Section 2254(d)” and that, because

the state court found there was no suppres-

sion of evidence by the prosecution, “{t}his

finding concludes the issue under 28 U S.C

§ 254d) and Sumner v Mata, 49 US

539, 101 S.Ct. 764, 66 L.Ed 2d 722 (1981).”

(emphasis added).

Section 2254(d) and the “presumption of

correctness,” Sumner v. Mata, 49 US at

549, 101 S.Ct at 770, set the standard of

proof by which a habeas petitioner must

establish the facts of the case. Where, as

here, the state has made a factual determi-

nation which is refuted by the petitioner,

the habeas petitioner must overcome the

presumption of correctness afforded the

state's factual finding and must establish

the contrary fact by convincing evidence, 28

U.S.C. § 22544), unless one cr more of the

eight conditions eet forth in B USC

§ Z254(dN1}48) applies If ome of the

——— a i te oe.

Sm ee eee ee ee Oe eee 6 eee

or factual igsues presented for federal habe-

asreview. Section 2254(d) simply establish-

es the varying degrees of deference state

factual findings are to be afforded and,

thus, establishes a habeas peUtuoner’s bur-

den of proof as to factual issues. Even

where (hc presumption applies the contrary

fact may be proved by the habeas petition.

er, i simply must be proved by convincing

evidence. See Goode vy. Wainwright, 704

P2d 693, at OS 4a M (11th - Cir.1983).

In my opinion, the majority erred (]) in

not giving reasons why the hearing was full

and fair and why the record supports the

finding st issue; (2) in not evaluating

“hether petitioner established by convine-

ing evidence that the government did sup

press evidence favorable to the government

Because, however, under correct Brady

ans’ .§ the factual finding made by the

state court on which the district court and

the majority rely is not relevant, I do not

address these issucs

INEFFECTIVE ASSISTANCE

OF COUNSEL

(Majority's lesue IV)

Relying on its view that the “district

court carefully considered petitioner's

claims of ineffecuve assistance,” Maj Op.

at 1540, the majority summarily affirmed

cema!l of habeas relief, @ ving no reasons

And in an evidentiary hearing in the proceeding

m the Federsl Court, when due

factual determunauion has been

the existence of one or more of

Mances respectively set forth in

numbered (1) to (7) inclusive, is shown by

aepect of the claim is flawe. and Ure

lega: standard apphed was never identified.

hence more thorough considerstion is war.

ranted Ee

Appefiant claims that the state evidentia-

ry hearing was not full and fair and there-

fore an hearing was required on

Cais insue im the federal district court. Nor

mally, if the state has not held an evidentis-

ry hearing or if the facts necessary to reso-

bution of the iesue raised on habeas were

not adequately developed in the state pro-

ceedings, « federal hsbeas court has « duty

v. State, 584 F.2d 100, 102 (Sth Cir.1978);

applicant. otherwise appears, or is admitied by

the respondent. or unless the court conciudes

purwant to the provisions of paragraph sum

bered (8) thet the record in the State court

proceeding considered as & whole, does not

fairty support such factual determination. the

burden shall rest upon the applicant to ested

lish by comvincing evidence that the factual

Grtermination by the State court ses errone

ous

1548 706 FEDERAL VORTER, 24 SERIES

Here, most of the factual issues appellant

rames in hus claim of ineffective assstance

can be resolved by reference to the existing

record, presentation of the evidence appe'-

lant seeks to proffer would not alter those

resoluLons. As to those factual disputes

that cannot be resolved by reference to the

existing record even if we assume them

proved, appellant would not prevail on the

ineffective asswlince weve.

Thus, even assuming the state hearing

was not full and fair, because the following

analysis of the merits would not be altered

even if appellant were afforded an eviden-

ary hearing in federal court, no such hear-

ing Was required.

Appellent presents three elements to his

claim." First, he asserts that counse! was

ineffective by virtue of the failure to move

for a change of venue in light of prejudicial

pretrial publicity. Even if we assume, how-

ever, that this did constitute ineffective

pegs, it clear <hat no prejudice resulted

from this failure Washington v. Strick.

land, G33 F 2d 1243 at 1258 (Sth Cir. Unit B

1982) (en banc). A review of the actual

vow dire proceedings shows that the venire

persons and ultimate jurors adequately

were voir dired, even if not by defense

counsel, about the effect of pretrial publici-

ty and revealed no basis for « finding thai

they were prejudiced by such publicity.

In Irvin v. Dowd, 966 US. 717, 81 SCL

ty would be to establish an impoam bie

standard It is sufficient if the juror cen

lay aside his impression or opinion and

render a verdict based on the evidence

Id. at 722-23, $1 SC at 1642-44 (citalons

omitted). The record of the voir dire shows

that each and every juror who indicated

that s/he had read or heard shout the cir-

cumstances of Antone's arrest and indict-

ment were questioned by the po<ecutor

and/or the defense counse! concerning their

ability to render an impartial verdict

These venirepersons each indicated an abili-

ty to be impartial and the absence of any

quesuons by defense counse! may have ren

enlightening but the failure to propound

such questions does not imiicate ineffective

amuslance

Appellant next complains thal counsel

failed to object when prospective jurors

were excused for cause because of their

convictions about the death penalty, al-

legediy in violation of Witherspgon v. Hii

nots, H1 US $10, 88 S.C. 1770, D Lead

776 (1968),

My review of the record indicates that

each dismiasa! fully was justified under the

standards of Witherspoon v. [Ilinois: there

fore no objections to the dismissals of the

jurors in question could have been success-

ful

Fes

tid

lis

rae

@ * Nora n 9, that their decision

Ra One oe eee

UNITED STATES +. MAIMOWi TZ

Che ao 708 7 2s 18 (ED

to guilt

would be affected by their views on the

death penalty. Thus, there was no Wither-

spoon basis for objections to their dismissal

and failure to object does not indicate inef-

fectivencas. Cf. Goodwin v. Balkcom, 684

F 2d 794, 816 (11th Cir.1982) (failure to o*-

ject \ erroncous Witherspoon dismissals

and to propound more questions to venire-

persons evidences ineffectiveness).

The third aspect of the ineffective assist-

ance claim is trial counsel's failure at the

penalty phase to introduce evidence of non-

statutory mitigating factors, request an in-

struction that nonstatutory mitigating fac-

tors could be considered afd object to the

prosecutor's misleading stalements to the

jury as to how aggravating and mitigating

factors were to be analyzed. Appellant ar-

gues that but for this ineffectiveness, miti-

gating evidence would have been intro

duced in the form of: (1) the disparity of

sentences which would result if appellant

were given the death penalty when no co

defendants received the death penalty, (2)

the fact that appellant had undergone brain

surgery, and (3) testimony of family mem-

bers and [nends as to appellant's character

Under the standards set forth in Wash-

ington v. Strickland, 693 F 2d 1243 (Sth Cir

Unit B 1982) (en banc), the failure of coun-

introduce the above evidence would,

im my view, come close to ineffectivencss

However, even if ineffectiveness is as-

amed, the record shows the absence of any

actual and substantial disadvantage to the

course of his defense.” id, at 1262

The record reveals and the majority

points out in its discussion of the Lockett

claim, that defense counse! argued to the

jury that a co-defendant bargained for a

thirty-five-year sentence Under thie

court's analysis in Ford v. Strickland, 696

F Xi 804 at $12, we now assume that argu-

ments to the jury in the penalty phase will

tw consulered by the jury as mitigating

evidence even though the jury was never

mstructed that they could consider the un-

derlying evidence on which those argu-

ments are based. Thus, the evidence as to

sniencing disparity was before the jury

| to

greg

nike

fut

For the foregoing reasons, | concur in the

judgment that habeas relief is not warrant-

ed on the ineffective assistance claim and,

in general, in the judgment but not the

opinion of the majority.

UNITED STATES of America,

Plaintiff-* ppellee,

’.

Harold HAIMOWITZ,

Defendant-Appellant.

No. 81-6011.

United States Court of Appeals,

Eleventh Circuit

June 13, 1983

Defendant was convicted in the United

States District Court for the Middle District

of Florida, William J. Castagna, J. on one

count of conspiracy and eight substantive

counts of possession of false and fraudulent

83-5644

Ch. 921 SENTENCE Ch. 921

HAPTER 92!

SENTENCE

92109 Fees ot physicians who determine sanity at able. If, throug? pomsibility or nt v. the

time of sentence jury is unable to reconvene for a hearing on the wssue

921.12 Fees of physicians when pregnancy is al of penalty, having determined the guilt of the a

leged as cause for not pronouncing ser used. the trial pudge may summon a special juror oF

tence jurors as provided im chapter 913 to determine the

921.141 Sentence of death or life imprisonment for ssue of the imposition of the penalty If the trial jury

capita! felonies, further proceedings to has been waived, or if the defendant plead: { guilty

determine sentence

Stay of execution of sentence tc fine, bond

and proceedings

92116 When sentences to be concurrent and

when consecutive

921.161 Sentence not to run until imposed, credit

for county jail time after sentence, cer

tificate of sheritl

92118 Sentence for indeterminate period for non

capital felony

921.185 Sentence; restitution a mitigation in cer

tain crimes

Classification summary, Parole and Proba

tion Commussion

921.21 Progress reports to Parole and Probation

Commiussion

Determination of exact period of imprison

ment by Parole and Probation Commis

sion

921.231 Presentence investigation reports

921.241 Felony judgthents, fingerprints required

921.15

921 20

921.22

92! Fees of physicians w -

ity at sentence.— The court shal! ali

sonable ysicians appointed by the cOurt to

determi tal condition of a defi t who

has alleged insanity as a cause for neing

i be paid

which the indictment wag fou the information

or affidavit filed

ee SS ee ee WHO Supp OORT 6 12) ch

4 ‘

ing

which the

or affidavit filed.

Histery.—« 288, ch 19684, 1990 COL 1940 Supp SOEKRET) & 122 ch

921.141 Sentence of death or life

ment for capital felonies; further to

determine sentence.—

trial judge +! ore the trial jury as soon as practi-

2210

os i OI Ct Ee AR I a a A

the sentencing proceeding shall be conducted before

a jury ims aneled for that purpose oss waived Dy

the defendant In the proceeding. evidence may be

presented om ft inv matter that tl ourt deems

relevant to sentence, and shal! include matters relat

ing to any of the aggravating or mitigating circum

stances enumerated in subsections (6) and (7). Any

euch evidence which the irt deems to have probe

tive value may be received, regardless of its admis

bility under the exclusionary rules of evidence

provided the defendant 1s accorded a fair opportuni

ty to rebut anv hearsay statements However this

subsection sha not be nstrued t suthorive tne

introduction of any evidence secured in violation of

the constitutions of the United States or of the Sta

ot Flor da The «tate and the defendant or his coun

sel shal] be permitted to present argument for of

against sentence of death

(2) ADVISORY SENTENCE BY THE JURY —

After hec ring al! the evidence, the jury shal! deliber

ate and render an advisory sentence to the court

based upon the following matters

a) Whether sufficient aggravating rcum

stances exist as enumerated in subsection (6

ib) Whether sufficient mitigating circumstances

exist as enumerated in subsection which out

weigh the aggravating circumstances found to exist,

and

‘c) Based on these considerations, whether the

defendant should be sentenced to life *[imprisom

ment} or death

(3) FINDINGS IN SUPPORT OF SENTENCE

OF DEATH —Notwithstanding the recommends

tion of a majority of the jury, the court, after weg?

ing the aggravating and mitigating circumstances

shall enter a sentence of life imprisonment or death.

but if the court imposes a sentence of death. it shall

set forth in writing its findings upon which the se

tence of death is based as to the facts

(a) That sufficient aggravating circumstances

exist as enumerated in subsection (6), and

(b) That there are insufficient mitigating circum

stances, as enumerated in subsection (7), to out

the aggravating circumstances

In each case in which the court imposes the deat?

sentence, the determination of the court shall be

supported by specific written findings of fact

upon the circumstances in subsections (6) and (7) and

upon the records of the trial and the sentencing prv

ceedings If the court does not make the finding?

requiring the death sentence, the court shall impost

sentence of life imprisonment in accordance with &

775.082.

(4) REVIEW OF JUDGMENT AND SE’

Ch. 921 @ sevrexce_ ; @ am

TENC F The judgment of conviction and sentence _ proved by the sheriff or the offs er charged with exe

of death shall be subject to automatic review by the cution of the judgment

Supreme Court of Florida within 60 days after certi 2) The bond shall be made payable in 90 days to

fication by the sentencing court of the entire record the governor and his successors in office

uniess the time us extended for an additional! period 3) If the bond is not paid at the expiration of 90

not to exceed JU days by the Supreme Court for good days, the sheriff or the officer c larged with execu

cause shown Such review by the Supreme Court tion of the judgment shal! indorse the default on the

shail huve priority over all other cases and shall be bond and file it with the clerk of the court in which

heara in accordance with rules promulgated by the = the judgment was rendered. The clerk shal! issue an

supreme court execut:on as if there had been a judgment at law on

5) AGGRAVATING CIRCUMSTANCES.—Ag- the bond. and the same proceedings shall be followed

gravating rcumstances shail be limited to the f as in other executions. After default of the bond. the /

owing ynvicted person may be proceeded against as if bond

6 Phe capital! wa ed bY a perm had not been given

nder sentence of prisor er timer -« ie mi4 |e “um + Supe

b The defend : prev is . ted ; me eis ~~

: oT ; : thy

a ae a ne mee 921.16 When sentences to be concurrent and

e defendant k wing!y oneate ida great risk when consecutive A defendant convicted of tw

— r more offenses charged the same indictment

i e capita . mitted w e the nformatjor r affidavit or in consolidated indict ;

e { was engaved_ or « . , . ’ ments, informations, or affidavits, shal! serve the j

sion of, or atte tt light sentences of imprisonment concurrently unless the

ft t rt t t rt directs that tw r more of the sentences be

ye . ‘ le * sf F rceraft served noes of imprisonment for

' “ wing. | Z Tenses ne indictment, infor

ha g 1 dest f 46 e or & matior rafl t te served consecutively un

: | " ‘4 ttled ‘ eas the mirt directs that tw r more aw the

wna ’ ‘ é \ ‘ sentences be served . irrentiy

dj Nietery « » “Mu 1e) ” > =e s ish @

: . ’ : _

of 921.161 Sentence not to run until imposed;

, abyss : credit for county jail time after sentence. certifi-

, ‘ ex ‘ uns enta

; : cate of sheriff. = °

: J A sentence of imprisonment shall not begin to

run bDetore the date it wm in posed. Dut the yurt im {

P ut GATIN VSTANCES Mir Osing a sentence shali allow a defendant credit for

: 2 4 . : | the time he spent in the county jail before

P ri. A fondant wh, + sen te The credit must be for a specified period of

me and shall be provided for in the sentence

|) pee : , : a 2) In addition to other credits, a person sen

inl ne » whe po a tenced to imprisonment in custody of the '[Depart

‘ The enalll ment of Offender Rehabilitation!) shal! receive credit

" ; mn hus sentence for all time spent between senten

ents she wat g and being placed in custody of the '| Department

R , r. { Offender Rehabilitation) When delivering a pris

tal fe og ar er t he Department { Offender Rehabili

ation the sheriff sha er? ify writing to the |

; o dele ad : , . { riment

basta ‘ rs The date the sentence was imposed and the

‘ : ‘ dant : ¢ ste late the prisoner was delivered to the Gepar.ment

the y t t The dates of any periods after sentence the

iw w bat ’ prisoner was at liberty on bond

The dates and reasons for any other times the

‘“ ‘ prisoner was at liberty after sentence

' ‘ The cert ste shall be pr 1s fame evidence of the

; acts certified

. Hietenry . arat i “eid we * |

: ; Nete.tee « » The wwe on and me of the Die

921.15 Stay of execution of sentence to fines . rrecuons tranaterre © tepertme |

bond and proceedings

enc ne 921.18 Sentence for indeterminate period for

he s vet for ‘ f the noncapital felony The court in its discretion may

‘ be sentence a defendant tvicted of a noncapita! felo

ous P ar to the istody of the §| Department of Offender

e ANTONE v. var Pla. 777

Cite as, Pla. 355 Se. 24 777

b. Probation not to exceed three years,

the probation to terminate upon respon-

dent's submission of four quarterly status

reports In succession

¢ Payment of $187.00 for costs incurred

by The Florida Bar in bringing these disci-

phnary proceedings

The publication of this opinion shall serve

as the pu * reprimand

VERTON, C. J. and BOYD. ENG-

LAND, SUNDBERG, HATCHETT and

KARL, 44 neur

Sen

\nthony ANTONE, Appellant,

‘

STATE of Florida, Appellee -

No. 50240

{ ourt of f vr

r 16 me

was con ted in the Circuit

Poort H rough County, Herboth S. Ry-

eer. f firs ret Murder and was aon.

waced to dea Defendant appealed. The

Sgorem ri hekd that a hearing was

qu vet i termine whether the Depart-

ot! rminal Law Enforcement paid

- gistantial foes Lo the attorneys for a code-

fendant whe negotiated a piea and became

te Slate's principal witness against de-

fendant and, if so, whether the prosecu-

toe'’s faslure to reveal that information to

the defense was sufficient to warrant a new

ra ¢ the a f ndant

man dd

adkins, J. dissented

|. Criminal Law = 959

In prosecution for first-degree murder.

hearing was required to determine whether

Department of Criminal Law Enforcement

paid substantial fees to attorneys for code-

fendant who negotiated plea and became

State's principal witness against defendant

and, if so, whether prosecution's failure to

reveal that information to defense was suf-

ficient to warrant new trial for defendant

2. Criminal Law e700

For purposes of determining whether

State failed to disclose exculpatory evidence

defense, there is no distinction het ween

different prosecutorial offices within execu-

live branch of government

Ange Mf Ferlita of Diec lue, Ferlita &

Prieto, Tampa, for appellant

Robert L. Shevin, Atty. Gen, Tallahassee.

Charles Corces, Jr. Asst Atty. Gen. Tare

pa, and T Exdward Austin, Jr. State's Ally.

Jacksonville, for appellee

PER CURIAM, « >

Anthony Antone was convicted of first

legree murder and sentenced to death by

the trial judge He appealed his conviction

48 pursuant to Article V, Section WbW1),

Fiorwia Constitution, and Section 921.141(4),

Florida Statutes (1975)

Subsequent to the filing of this appeal,

the prosecuting attorney filed a motion to

supplement the record with information

which had not previously been revealed ei-

ther to him or to the defendant. The sub-

stance of the information is that the Florida

Department of Criminal Law Enforcement

apparently paid substantial foes to the at-

torneys for Filis Marlowe Haskew, a co-de-

fendant who negotiated a plea and became

the State's principal witness against An-

tone. In light of this new information,

Antone has requested that we remand the

case to the trial court for a determination

as lo whether a new trial should he grart-

Antone contends that the State's failure

to reveal the information during the course

—» wee

778 Fi

of pre-tnal discovery constitutes ss olation

of the continuing duty to duwelose imposed

by Florida Rule of Criminal Procedure

3.220(f), and that the withholding of the

information from the defendant resulted in

a denial of due process under Brady +

Maryland, 373 US. &3, & SCi 11%, 10

L.Ed.2d 215 (1963), and its progeny. An

tone asserts that the newly-diseovered facts

explain Haskew's interest in testifying

against Antone, that they bear on the sue

of Haskew's credibility since they refute

Haskew's statements to the jury that he

received nothing from the State other than

the benefit of his negotiated plea, and that

they are so “materially favorable” to An-

tone’s case that a revelation of those facts

might have led to a different result at hus

inal

(1,2) In Williams v. Dutton, 400 F.2d

797, 800 (Sth Cir. 1968), the Fifth Circuit

Court of Appeals said

“It is now clear that Brady imposes an

affirmative duty on the prosecution to

produce at the appro, Mate time request-

ed evidence which is materially favorabie

to the -accused

impeaching evidence.”

The record shows that defense counsel as-

siduously sought ali relevant data from the

State concerning Haskew's bargain, that

this bargain was brought out before the

jury in an endeavor to discredit Haskew's

testimony, and that Haskew's credibility

was a dominant issue, if not the dominant

issue for the defense, in Antone's trial. The

record also shows that the case against An-

tone was developed in large part through

efforts of the Department of Criminal Law

Enforcement, and that officers of that de-

partment directly participated in the prose-

cution. If the alleged fee payments were in

fact made to Haskew's attorneys, then even

though the prosecuting attorney was not

aware of that fect, the Department was

Just as there is no distinction between dif-

ferent prosecutorial offices within the exec-

ytive branch of the United States govern-

ment for purposes of a Brady violation,’

there is no distinction between correspond-

either as direct or

meee: pees.

355 SOUTHERN REPORTER, td SERIES

ing departments of the executive oranch of

Pleruda’s government for the same purpas®

it i necessary tc ascertain whether te

information concerning fees for Hasbew's

attorneys is accurate, and. if so, whether *

Brady vioiation occurred in (hus case that ®

sufficient to warrant a new trial for AP

tone In considering the latter issue, i

tne! court should be guided by materslity

standards defined by the United States Se

preme Court in Usited States » Agura

US. 97, 96 S.Ct. 2302, 49 L.Ed.2d 992 (1978

This case is remanded to the trial court

for the purpose of determining whether

there is a factual bass for the informatics

allegedly withheld by the State, and, if

whether it is so “materially favorable” @

Antone's defense as to require that s nef

trial be granted. In view of the fact that

the alleged Brady violation may necessitate

a new trial, it would be pointless for os @

pass upon the merits of Antone's appeal st

this ume

It is so ordered

OVERTON, C. J, and BOYD, ENG

LAND, SUNDBERG, HATCHETT and

KARL, JJ., concur

ADKINS, J., dissents

THE FLORIDA BAR, Complainant,

Remus C. E. ALLEN, Respondent.

No. $1555.

Supreme Court of Florida

Feb. 16, 1978

Disciplinary proceeding was crought

against attorney. The referee made find-

1. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 LEd2d 104 (1972)

eg ROSIE

ANTONE +. STATE Pla 1205

Owe on Pin. B89 Sede i208

ey s fees, to be determined at « subsequert

aring, was crror in Cummuags + Cum-

ngs. 330 Sold 15, 196 (Pin 1976), we

Mertz » Mertz, 237 So 2d @1 (Pia

\ 1973), as correctly stating that the

rye section 61.16, Floruda Statutes

was t© ensure that beth parties will have

ar att © secure competent iegai

ise " ul question, the financial

weilons of the parties in this proceeding

r the sarn husband has a supe-

r financial abslit securt and pay coun

“ It is ne sary thal one spouse be

wtely una ay attorney's fees in

r for the tra srt lo require the other

couse W pay these fees Given the com-

f the cause and the time necessary

appropriately resolve the tmsues, the

award of attorney's fees in this case was

<r toa lan inequitable diminution of

‘weal sums granted the wife in these

r« ; se)

he reasons cxpressed, the decwion of

lis trict srt ws quashed, and the final

igm at of the trial court is reinstated

4 rcere

NGLANI and ADKINS, BOYD

ALDERMAN, JJ neur

NDBF ncurs in result only

Sen.

Anthony ANTONE, Appellant,

STATE of Florida, Appellee

No. 50240

~ ror F - a

Mar 7 ~~

hearing ) 2 Ni

fenda “as ed before the

n { . i gh 4 unty Her-

ns ms irder in the first

Gegree, the tral judge imposed the death

sentence, and defendant appesied. The Su

preme Court held thai: (1) search of de

fendant's house was not improper; (2) de

fendant's statements were admissible. (3)

testimony impheating defendant in other

crimes was properly allowed, (4) inquiry

concerning State's witness character was

property limited, (5) trial court properly

demed motion to compel disclosure of con")

dential informant; (6) motion to dismiss

mdictment was properly denied, (7) death

penaity Satute w not unconstitutional, (8)

defendant was not entitied to a new trial on

bass of newly discovered evidence; and (9

death sentence was properly imposed

Affirmed

1. Searches and Seizures @=3.6(1)

Fact that supporting affidavit for

search warrant alleged that defendant kept

counterfeit currency in his home and no

counterfeit money was found as a result of

the search did not render search warrant

invalid, where there was no showing that

statement concerning counterfeit money

was intentionally or falsely made and

where, even if such statement were excised,

remainder of the affidavit was sufficient to

establish probable cause

2. Searches and Seizures @=3.6(3)

Aguilar-Spinelli test requires that war-

rant which is based on informant's tip must

establish that information provided by in-

formant, if true, is sufficient to support

finding of probable cause, and that affida-

vit must establish that informant is credible

or his information is reliable

3. Searches and Seizures 3.6/4)

Allegations in acfidavit supporting

search warrant that projectiles fired from

murder weapon would be found in couch or

wall in defendant's home and that counter-

feit money was kept by defendant in his

home established probable cause to support

search warrant

4. Searches and Seizures @= 3.6/4)

Affidavit which revealed both source of

information of informant, who confessed to

+ >.

120

his part in murder and who stated that he

as present when victim was murdered

with S2-automatic pastol, and whieh alleged

that projectiles fired from murder weapon

would be found in a couch or wal! in de

fendant’s home and that counterfe: money

wes kept by defendant in his home, and

corroborating evidence found by indepen-

dent investigations, which included test re-

vealing that bullet recovered from victim's

bedy had been fired from a 32-calibre pw

tol, was legally sufficient for issuance of

search warrant for defendant's home

&. Searches and Seizures @=1.4(2)

Shed behind defendant's house was

proper subject of search warrant which de-

scnbed place to be searched as including

“curtilage,” notwithstanding fact that biue

fiber which was used to pack silencer of

murder weapon, and which was found in

shed was not described in the search war-

rant

& Searches cad Seizures = 3.8(2)

Term “curtilage” encom passes

workshed used in connection with a dweil-

ing, for purposes of search pursuant to

properly issued warrant.

See publication Words and Phrases

for other judicial constructions anc

definitions

7. Criminal Law @=412(4)

Fact that defendant suffered heart at-

tack on the night of his arrest did not

prevent his appreciation of Miranda warn-

ings, create coercive atmosphere, or pre-

clude admission of his incriminating state-

ments, which were made before he began to

complain of discomfort and following the

administration of warnings.

& Criminal Law @412.1(1)

Voluntary statements are not barred

from admissibility by the Fifth Amend-

ment. USC.A.Const. Amend. 5

9. Criminal Law @=412(4)

Defendant's statement on night of his

arrest that “Sicilians do not fink,” which

was made after his admission to hospital

following mild heart attack, and after doc-

tor advised police officers it would be al!

382 SOUTHERN — | SERIES

mgm to speak with defendant. was volun

tary and admissible USC A Const

Amenc. §

10. Constitutional Law o> 286.1(5)

Criminal Law 414

Ideally. trial judge should specify bus

conciusions concerning voluntariness of ds

puted confession of ineuipatory statement

however, due process is not offended when

issue of voluntamness is specifically before

judge and he determines that the «tate-

ments are admissible without using word

“voluntary” US.C_AConst. Amends 5, 14

11. Criminal Law @= 3946/5)

Where only issue before court at sup

pression hearing was voluntariness of de-

fendant’s statements, and evidence clearly

supported finding that such statements

were free from coercion, trial judge's naked

denial of the motion to suppress was not

error

12. Criminal Law @407(1), 698(1)

Testimony of agent that defendant told

him that defendant was “100 percent Sicil-

ian” and “Sicilians do not fink”, which testi-

mony was not objected to at trial, was

permissible as it recounted defendant's af-

firmative statement, and did not constitute

impermissible comment on defendant's deci-

sion to remain silent.

13. Criminal Law @=369.2(4)

In prosecution for murder, witness’ tes-

timony that defendant wanted witness wo

kill five men pertained to part of the pri-

mary arrangements for contract murder at

issue and was therefore relevant to show

existence of conspiracy to commit murder

14. Witnesses 142

Trial court properly limited direct ex-

amination which sought to elicit individual

and personal view of character witness as

to State's witness’ reputation for truth and

veracity; overruling Nelson v. State, 32

Fla. 244, 13 So. 61 (1893) and Robinson ¥

State, 16 Pla. 835 (1878)

15. Witnesses e342

Only general reputation of witness in

the community is admissible to impeach

witness’ reputation for truth and veracity.

16. Criminal Law & 1170'A(1)

Where record reflected that witness

«as properly allowed to tell jury that

State's witness’ reputation for truth and

eracity in the community was not good,

Siale’s witness’ reputation was properly

uced «before jury and defendant was

refore not prejudiced by cxclusion of

suion which sought to elicit individual

{ the character witness

ana persona: view

17. Criminal Law @627.10(2)

to sustain his burden

nondisclosure of

wing preju e dy

rmant, who was not

mai pomt in ihe crime

not testify at defendant's tris

Is. Grand Jury 17

Mor h mere conclusory statements

re necessary sustain defendant's chal-

s n of grand jury which in-

“ s F S.A. $§ 906.02-905.06

8 Grand Jury =!

- - 4 B f Rights

2 ™ ur proceed-

ar rial rather than ad-

; (rand Jun & 35

ghts nfront his ac

r n nse| and her constitu

" n Violated by grand

_ s . n were nqusitlona

ersary in nature

riminal Law @ 1206(1)

fomicide <5

First<legree murder statute and death

are nol unconslilulonai

FSA §§ 775.082, 921.141

22. Criminal Law o942(1)

f prosecution knew or should have

<rjured testimony in its case and

likelihood that the

ny uid have altered jury's

mandates

445 rcasonack

imentai fairness

granted

== 91%1)

s asked of State's wit-

(riminal Law

wW tr ] —'

sposihon and in inal were

MArgZain agreement

ANTONE v. STATE

Che as, Pin, 382 Sad 1205

e Pia. 1207

and State's witness’ answers could fairly be

characterized as truthful, State's failure to

disclose information that Department of

Criminal Law Enforcement had paid an at-

torney to represent State's witness did not

mandate new trial

24. Criminal Law @919%1)

If requested evidence is withheld by

the prosecution following specific request

by defendant and the evidence is “maten-

al,” meaning that it might have affected

outcome of the trial, new trial must be

ordered

25. Criminal Law 9191)

Where defense counse! made only gen-

eral demands for material or information

within State's possession or control which

tended to negate guilt of defendant and

filed motion seeking disclosure of al! evi-

dence favorable to the defendant, State's

failure to disclose that Department of Crim-

nal Law Enforcement had paid attorney to

represent its principal witness did not man-

date ordering of new trial, since no specific

request for such information was ever made

by defense

26. Criminal Law @= 340

Where evidence that State Department

of Criminal Law Enforcement had paid for

attorney representation of its principal wit-

ness in no way detracted from testimony

presented by State which established de-

fendant’s guilt beyond reasonable doubt,

such evidence was useful for impeachment

of principal witness and was not germane

to defendant's guilt or innocence, other evi-

dence tending to impeach principal witness

was already before the jury and undisclosed

evidence would have added little to defense

efforts to show principal witness as unwor-

thy of jury's belief, and there was no show-

ing of conspiracy between principal witness’

counsel and State, undisclosed evidence

failed to meet standard of “materiality”

and therefore new trial was not required

27. Criminal Law ¢= 1208(1)

It is duty of Supreme Court to examine

jetermine whether there are clear

and convincing facts which warrant imposi-

uwon of death penalty

record tc

@,, ».

28 Homicide = 34

Trial court's finding that defendant

had been convicted of two armed robbenes

which involved threat of violence to & per

son was appropriately “aggravating arcum-

stance” justifying imposivor of death pen-

alty following defendant's conviction [or

first-degree murder. Wests FSA. § 21-

145d)

29. Homicide 354

Trial court's finding that first-degree

murder had been committed for pecuniary

gain in that defendant received at least

$750 for hw share of the contract killing

was appropriate “aggravating § crcum-

stance” so as to warrant imposition of the

death penalty. Wests FSA § 9%1-

141 5y¥f)

20. Homicide 354

Trial court's finding that contract mur-

ler was committed to disrupt and hinder

enforcement of laws in that it prevented

victim, from testifying before grand jury

was appropriate “aggravating circum

stance” justifying imposition of the death

penalty Weat's FSA. § 921. Ml5ks

31. Homicide e344

Defendant who was mastermind of

contract killing, and who supplied the gun

paid money from his pocket, and pressured

accomplice to complete the task, was nots

minor participant or mere accomplice if

capital felony committed by another person

so as to mitigate sentence of death

32. Homicide e354

Error in finding aggravating circum:

stance that murder was heinous atrocous,

er cruel does not invalidate imposition of

the death sentence supported by other ag-

gravating arcumstances

33. Homicide e344

Where trial court properly found \nree

aggravaung circumstances so as lo warrant

mposition of death penalty upon defendant

following conviction for first-degree mur-

Jer, and no mitigating circumstances were

found, Supreme Court did not need to com

ua SOUTHERN REPOG@HR. 24 SERIES

suter appropmateness of trial court's finding

thet the murder was heinous, atrocious, oF

ervue! in determining propriety of the death

sentence

Angelo M. Ferlita of Diecidue, Feriita &

Prieto, Tampa, for appellant

Jim Smith, Atty. Gen. Charles Corces

Jr. Asst. Atty. Gen., Tampa and T. Edward

Austin, State's Atty. Jacksonville, for ap

mH ocr

;

PER CURIAM

The appellant Anthony Antone was com

vieved of murder in the first degree The

trial judge imposed the death sentence in

accordance with the jurys advisory sn

tence recommendation. We have jumsddie-

For the reasons expressec), we affirm ths

contract murder conviction and the impos

tion of the death sentence

Our consideration of this cause was de

ayed by the remand for testimony on an

application for new tris relative to an

agreement made by the Florida Depart

ment of Criminal! Law Enforcement

(FDCLE) for atlorney representation of the

principal witness, Haskew, and the payment

of $11,500 fee for attorney services Thes

agreement was unknown to either the pros

ecutor or defense counsel until this caus

was on appeal to this Court We find th

conduct of the FDCLE improper but con

clude there was no prejudicial error when

we consider the totality of tm record

This murder was committed on the morn-

ing of October 23, 1975, when Detective

Richard Cloud, a suspended Tampa police

officer, was killed at the front door of his

home. Antone’s convichion was hase on

the fact that he was (he masterm nd of this

execution slaying, and he directly hired the

two men who carried out this contract mur-

der. One of the men Antone hired, Ells

Mariow Haskew, was the primary witness

for the stale

wbd* Pia Const

ee ee

7 Ae

gs ANTONE v. STATE ee

Fila. 1209

Chee oo. Pia. BBP Sede | 208

Haskew's trial testimony revealed the fo!-

owing materia! facts of this murder Upon

discharge from Plorida State Prison in May,

1975, Haskew returned to Tampa to live

and to establish contact with Antone In

September, 1975, Haskew helped Benjamin

ford Ww escape from prison, after which

he and Gilford went to the Bradenton area

to live Immediately after this escape, An-

advised Haskew by telephone that he

for someone to perform five

eas aes) 4

nstallavens,” which Haskew defined as

Haskew and Gilford then trav-

ed to Tampa where Antone personally

nformed Haskew that another man wanted

ncluding Richard Cloud

chew ‘ $1.73) in

part to purchase a used

ate September, 1975, he

ve pe Kia

front money”

ne's house and was given a 32

Pad mat with an allached siiencer

Tia. z” A ntom reviousiy had

ed the gun hima he wanted Haskew

for fs the vehicle While ord en-

Haske w drove ar nd the

sw an ashtray fly out of the front

Haskew recalled that

r ale tpiamec that wd had

fired at Cloud. Antone visited Haskew at

his apartment later that day, gave him $200

to get Gilford out of town, and drove with

askew to Gandy Bridge to dispose of the

marder weapon in Tampa Bay. Haskew

made several! trips between Tampa and Mi-

ami in the ensuing days and received about

$9,000 from Antone in several installments

It was also established that Antone person-

ally rec 1 at least $750 for this contract

murder

On February 25, 1976, at approximately

8:30 a m., Haskew was arrested in Miami

Although he imitially denied involvement

with the Cloud murder, later that day h«

admitted his participation and agreed to

cooperate with law enforcement authorities

Haskew fully implicated Antone as the per-

son who hired him and Gilford to murder

Cloud. He also explained the telephone

code arrangement which enabled Antone to

determine the number from which Haskew

Upon receiving the code, An-

tone would return the call to that number

In cooperation

with the FDCLE, Haskew called the appel-

ant at appreximatéty 8:30 p. m. that same

day and used the code to have Antone re-

turn the call at a pay phone in the FDCLE

buncInNg if Miam:

wes calling

from a tclephone booth

The appellant Antone

had been placed under surveillance at the

tume and was observed leaving his house

and going to a pay phone booth around the

A recording made of the return

all from Antone was laler introduced into

corner

evmenct

Approximately an hour and a half later

at 10 p. m. on February 3, 1976, Antone

was arrested at his home and taken to the

{free of the Federal Bureau of Investiga-

tion While at that office, Antone com-

plained of chest pains and discomfort. An-

lone was taken to the hospital where he

was subsequently placed in the coronary

At approximately 1:10 a m. the

following morning, with the approval of Uhe

attending physician, FBI agent Arwine en-

tered Antone’s hospital room. Arwine tes-

ufied that “Mr. Antone told me that he was

a hundred percent Sicilian and Sicilians do

care umit

not fink.”

1210 Fs

In the afternoon of February 26, 1976, a

search warrant was issued to search An-

tone’s residence, including any vehicles, cur-

tilages and appurtenances. The warrant

sought from the premises “certain evidence

to wit. 32 caliber projectiles, couch, cush-

ions. couch stuffing, and counterfeit curren-

cy” The affidavit in support of the war-

rant stated: (1) Richard Cloud was shot and

killed on October 23, 1975, and evidence

from the crime scene indicated that the

shots fired were from s 32 caliber automat-

ic pistol; (2) Ellis Marlow Haskew had been

arrested and had admitted being present at

the murder of Cloud by Benjamin Gilford,

and that Gilford used a 32 automatic pisto!

given to Haskew by Antone; (3) pror to

giving the pistol te Haskew, Antone tested

the weapon by firing it into a coven in the

den of his residence, and the fired projec-

tiles were still in the couch, floor, or sur-

rounding walls; (4) at the ume of Antone's

arrest. the arresting officer had seen 8

couch in those premises; and (5) Haskew

had informed the affiant that Antone kept

counterfeit money in the premises, and this

appeared to be confirmed in a recdrded

conversation between ‘askew and Antone

which was overheard by the affiant

On February 26, 1976, a search of An-

tone’s premises was conducted in sccord-

ance with the warrant st approximately

630 pm A bullet was recovered from &

couch which, when compared with

the bullet removed from the left leg of

“loud. was found to have been fired from

the same weapon. Identical comparisons

were also made with other bullets found at

rattan

od's home, including spent bullets found

n the carpet under the dining room tabie,

beneath the couch, and under the house in &

joist. In addition, the search produced biue

air conditioning fibers which were seized

from a work shed in the rear of Antone’s

house Haskew had stated that these fibers

were used to pack the silencer Expert

testimony indicated that these seized fibers

compared favorably with fibers taken from

the screen door at Cloud's house im mediate-

y following the murder

In support of Haskew's testimony, &

neighbor testified that he was standing in

382 SOUTHERN REPORTER, 24 SERIES

his carport and heard shols from the di-

rection of Cloud's house He looked up anc

saw a car with a driver in *t The engine

was running and the passenger door was

wide open. A few seconds -aler 8 max ran

from Cloud's house with a brown cardboart!

box in his hand, jumped in the car, and sped

off. The record further reflects (hat car’

board fragments were found near (nm

screen door of Cloud's house, and four bui-

let holes were in the door Cloud's mother

testified that a week prior to her sons

death a man whom she dentified as the

appellant Antone came \& Cloud's hom

asking for him

Antone testified in his own behalf and

denied participation in thus murder-for-hire

scheme Counsel for the appellant aiso

presented testimony impeaching Haskew 5

reputation for truth and veracity Haskew

acknowledged during c¢ross-examinatlion

that. with the advice of counsel, he had

entered into a plea agreement with the

state Under the agreement Haskew woul!

receive a thirty-five year sentence, anc he

expected to be eligible for parole in seven to

eight years

The jury returned a verdict « f guilty ar

recommended the imposition of the death

penalty. The trial judge mposed the death

sentence, finding as aggravating circum

stances: (1) Antone had been convicted f

two armed robbenes which were {clones

nvolving the use of threat of violence

another person, (2) this was & contract

murder and therefore committed for pe:

niary gain; (3)Antone ordered the execu-

tion of Cloud to disrupt and hinder the

enforcement of laws; and (4) the murcer

was particularly hemous, cruc and vicious

The trial judge found no mitigating circum

stances

While this cause was on appea), ine pros

cuting attorney filed a motion to supple-

ment the record which advised this Court

that the FDCLE had paid substantia! fees

to attorneys for Ellis Mariow Haskew and

that such information had not been previ-

ously known to the prosecuting attorney

In Antone v. State, 355 So.2d 777 (Fla 1978)

ANTONE +. STATE ®

Pia 1211

Cre on. Pia, B82 Sade 1208

we remanded this cause to the trial court

for a determination of whether a violation

prohibited by Brady v. Maryland, $73 US.

3, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), had

occurred and whether a new trial should be

granted. We advised the trial court that it

should be guided by the materiality stan-

dards defined by the United States Su-

preme Court in United States v. Agurs, ‘zr

US. 97,96 S.Ct 2392, 49 L_Ed2d 342 (1976)

In a detailed order, the trial court denied

s new trial. It found that the FDCLE had

paid the sum of $11,500 for an attorney to

represent Haskew, and that Haskew was

aware of this fact. The trial court further

found that the questions asked of Haskew,

both in deposition and at tnal, were direct-

i solely to the plea bargain and were an-

ewered truthfully. The trial court conclud-

4 that there was no violation of the stan-

tards established by the United States Su-

preme Court in Brady + Maryland and

ted States v. Agurs

We will consider the issues raised in this

appeal im three parts: (a) the trial phase,

) the request for new trial on the grounds

¢ newly discovered evidence, and (c) the

appropriateness of the aentence

4 Tria! Phase

Antone contends his conviction should be

aside because: (1) the search of his

se was improper; (2) hia statements

cere inadmissible; (3) testimony relating to

his silence was improperly admitted in evi-

jence, (4 implicating him in

cher crimes was improperly silowed; (5)

nquiry concerning Haskew's character was

mproperly iim ted; (6) the trial court im-

property denied his motion to compel disclo-

sure of a confidential informant; (7) his

motion to dismiss the indictment was im-

properly denied; and (8) Plorida’s death

penalty statute is unconstitutional. For the

reasons expressed, we reject each conten-

testimony

Validity of Search Warrant

[1] In challenging the validity of the

search warrant, Antone asserts that the

affidavit contained material

misrepresentations, contained an insuffi-

supy* ring

lacked the requisite specificity in describing

the scope of the search. The asserted mis-

representation is based on the statement

that “Anthony Antone keeps counterfeit

currency within the northeast bedroom door

frame.” Because no counterfeit money was

found, Antone contends this statement was

false and, therefore, the evidence obtained

under the authority of the warrant must be

suppressed. Although the state disputes

the falsity of the allegations, we need not

decide the issue of its truth or falsity. The

insue is controlled by Franks v. Delaware,

438 US. 154, 98 S.Ct. 2674, 57 L.Ed2d 667

(1978), which held that where a defendant

makes a preliminary showing that a false

statement made knowingly and intentional-

ly or with reckless disregard for the truth

was included by the affiant in the search

warrant affidavit and the false statement

was necessary to the finding of probabie

cause, and evidentiary hearing must be

held. If during an evidentiary hearing the

alleged perjury is established by preponder

ance of the evidence, the court must thes

excise the falsity from the affidavit am

review the remainder of the affidavit to

determine whether there remains sufficvent

grounds to establish probable cause There

was an evidentiary hearing in the instant

case. There was no showing that the state-

ment was intentionally and falsely made

In fact, during the suppression hearing

counsel stated: “We don't suggest that the

misrepresentation was intentional " Fur-

ther, and most important, we find that even

if the challenged statements were excised,

the remainder of the affidavit is sufficient

to establish probable cause

[2-4] The appellant also attacks the

search warrant on the basis that there are

insufficient underlying facts to meet the

tests set forth in Spinelli v. United States,

993 US. 410, % S.Ct 584, 21 L.Ed2d 637

(1969), and Aguilar v. Texas, 378 US. 108,

84 S.Ct. 1809, 12 L.Ed.2d 723 (1964) The

Aguilar-Spinelli vest requires that a war-

rant which is based on an informant’s tip

must: (1) establish that the information

provided by the informant, if true, is suffi-

cient to support a finding of probabie cause,

1212 Pe

and (2) the affidavit must establish that the

informant is credible or his information #

reliable. The allegations in the affidavit

that projectiles fired from the murder

weapon would be found in couch or im &

wall in Antone’s home and that counterfert

money was kept by Antone in his home

clearly establishes probable cause Second-

ly, the credibility of Haskew's confession,

that he was present when Richard Cloud

was murdered with a 32 automatic pustol,

was established when tests revealed thal @

bullet recovered from Cloud's body had in

fact been fired from s 32 caliber pistot

Purther, the affidavit's detailed deseription

of Antone’s home was in part corroborated

by a police officer who recently had been at

the home and had seen a couch jocated in

precisely the place where Haskew described

The affidavit reveals both the source of

Haskew's information and the corroborat-

ng evidence found by independent investi-

gations this affidavit meets

both federal and state requirements and

egslly

In our view

sufficient *

[5,6] The appellant next contends that

the admission into evidence of the bive fi-

ber was improper because it was seized

from the shed or workshop behind Antones

house and the description of the fiber was

not included in the warrant. Ve disagree

The description of the place to be searched

expressly included the term “curtuage %

That term encompasses a workshed used in

connection with a dwelling for the purposes

of a search pursuant to s properly issued

See Joyner v. State, 903 So.2d 0

Pla. Ist DCA 1974); Phillips v. State, 177

So 2d 243 (Fla ist DCA 1965). We find

that the shed was a proper subject of the

search warrant, and, under the circumstanc-

es of this case, the seizure of the fiber was

proper and reasonabie

warrant

2. Florids courts have siso been celled upon to

apply the Aguilar-Spineili test. See. ¢ 8 Find-

lay v. State, 316 So.2d6 33 (Fis 1975). State v

Smith. 233 So2d 306 (Fia 1970), 5 John ¥

State, 256 So.2d 32 (Fila ist DCA 1978) Davis

vy State. 250 $0.26 834 (Fila. 24 DCA 1977). cert

Fia 1978)

denied, 355 So2d 517

342 SOUTHERN REPORTER, Bowes

Admissibility of Appellant's Statements

[7] Antone contends thal severs bref

statements which he made following *#

arrest should have been suppressed because

they were obtained in violation of hus fifth

amendment privilege against self -incrim-

nation. On the night of his arrest, Antone

suffered a mild heart attack which he

claims prevented his appreciation of the

Miranda warnings, created a coercive aime

sphere, and precluded his statements {rom

being genuinely voluntary We reject these

contentions and find that Antone’s actions

reflect a complete understanding of his sit-

uation. Immediately following the admn-

istration of the warnings and prior to his

mild heart attack, he agreed to be inter-

viewed and further agreed to speak with

Haskew over the phone, at which time he

continually repeated “Marlow, why did you

do this to me” Antone began to complain

of discomfort only after the telephone con-

versation and an admission that he knew

Haskew and two other men were the sub-

ject of an investigation

{8,9} Antone also challenges the admit

sibility of his statement made at the hospt-

tal. “Sicilians do not fink.” This statement,

however, appears from the record to be

clearly voluntary and was made after 8

doctor advised officers it would be al! mght

to speak with Antone. Voluntary state

ments are simply not barred from admissi-

bility by the fifth amendment

[10,11] Antone next asserts that the tri-

al judge's naked denial of the motion %&

suppress these statements mandates a re

versal pursuant to McDole v. State, 233

So.2d $53 (Fia.1973). This Court, however,

has modified the strict requirement that #9

express finding must appear in the record

See Wilson v State, 304 So.2d 119 (Fis

1974); Henry v. State, 328 So.2d 430, 431

ni, (Pla), cert. senied, 42 US. Sl, 7

S.Ct 370, 50 LEd2d 319 (1976).2 Ideally,

3. Wilson and Henry are Cstinguishabie from

our decision in Greene v. State, 35! So2d #4!

(Fila. 1977). in Greene we did not address the

applicability of McDole but. instead. we OF

cussed the issue of remand when voluncariness

is not clear

sd ANTONE +. STATE ve

Pa 1213

Cue me Fin. 985 Sade 1208

the trial jodge should specify he cone! u-

pons concerning the voluntariness of «d=

puted confesmon or inculpetory slatement

Howe ver, due process 3 not offended when

the issue of voluntariness = specifically be-

fore the judge and he determim4s Unat the

statements are admissible without using Une

mage word “voluntary.” The record re-

fects that the only msve before the court

was the voluntariness of Antone’s state-

ments The evidence clearly supports tne

finding that these statements were free

from coercion. The resulting denial of the

motion to suppress was thus not in error

Comment on Silence

[12] Antone contends that the following

testimony of Agent Arwine constitutes im-

emissible comment on Antone’s decision

o remain sient

thereafter went into the room and was,

mtil 1:20,

he tume I left the room, there was &

¢.:

rom i.iv

~« in and out of the room and Mr

Antone did not volunteer any information

he made one statement. Mr. An-

i me that he was a hundred pert

S-ilian and Sicilians do not fink

" nd this testimony permussibie as it

recour Antone’s affirmative statement

n fa Antone did not stand mute; Ar-

~ timony comments not on Antones

n what he said. Further, de-

“ ynse! in erposed no objection at tr-

fore. there is no fundamental

| error. Clark v. Siate, 383

f Unrelated Criminal Activity

[13] Antone maintains that we must re-

corse because the trial court failed to grant

, mistrial following Haskew’'s testimony im-

olicating Antone im other criminal activity

Haskew's testimony related that Antone

wanted him to kill five men, three named

and two unnamed. Our view of the record

establishes that the challenged testimony

relating to other criminal activity occurred

as part of the primary arrangements for

this contract murder and was therefore rel-

evant to show the existence of this conspir-

acy. See Williams v State, 110 So.2d 654

(Pla), cert. denied, 361 US 847, © SCL

02, 4 L.Ed 2d 86 (1958)

Improper Limitation in = Presenting

Impeachmet( Testimony

[14,15] Antone asserts that the tna!

court erroneously limited the direct exam-

nation by defense counsel of a character

witness whose testimony impeached Has-

kew's reputation for truth and veracity

Mr. Tommy Walker, former mayor of the

City of Bartow, testified

Q Mr. Walker, do you know the general

reputation of Ellis Mariow Haskew

for truth and veracity in the commu-

nity of Bartow?

A 1 would think | do, ves

Q Have you ever discussed his reputa-

tion with others in the community”

MR. BOWDEN: Your Honor, | object

to the form of the que.tion

THE COURT

that

You may rephrase

Q (By Mr. Ferlita) Have you ever heard

his reputation discussed by other peo-

A Yes, sr, often

q@ What is tho: reputation of Ellis Mar-

low Haskew for truth and veracity

within the community of Bartow?

MR BOWDEN: Objection to the

form of the question, Your Honor

THE COURT: Overruled

THE WITNESS: Answer?

THE COURT: Yes, you may answer

THE WITNESS: | would say it’s not

good

Q (By Mr. Ferlita) Based on the genera:

reputation of Marlow Haskew for

truth and veracity, would you believe

him under oath’

MR BOWDEN: Objection, Your

Honor. That is an improper question

of the witness.

THE COURT: Sustained.

This record clearly reflects that the wit-

ness was properly allowed to tell the jury

that Haskew's reputaUun for truth and ve-

1214 Pie

racity im the comr ity was mot good A

further question o d to by the prosecu-

bon and sustained b, ine tral court sought

to elert the individual and persona! view of

the witness. We agree with the trial court

The clear weight of authority allows only

the genera! reputation of the witness in the

to be admiss: bie ‘

ommunit See genera/-

y C. McCormick, Evidence § 44 (2d ad

1972)

[16) Antone cites two early cases which

mh cicta suggest that the excluded question

would be permissible Nelson v State 32

Fla. 244, 13 So. 61 (1893); Robinson »

State, 16 Fla 835 (1878). To the extent

ulow this type of opinion

& wiiness, we overruie

We also find Antone was not preju-

lusion of the disputed ques-

was properly

the previous ques-

that these case

evidence to impeach

sod thw the an

Haskew's reputation

pced before the jury by

mh and answer

. :

Uisciose Confidentia! Informant

(17] Antone asserts that

erse because the trial court denied his mo-

disclosure of a confidentia!

The case relied on by Antone,

Roviaro v. United States, 353 U.S. 53, 77

S.Ct 623 L.Ed.2d 639 (1957), does not

mandate disclosure of every confidentis! in-

we must re-

tien —

— nye

nformant

formant. Rather, a careful balancing of

nterests is necessary. The record reflects

that this confidential informant was not

present at any materia! point in this inci-

dent and did not testify. We find Antone

has not sustained his burden of showing

prejudice by this nondisclosure See Haw-

kins v. State, 312 So2d 229 (Pla ist DCA

~e£

Failure to Dismias Indictment and Constitu-

nality of the Death Penalty Statute

18-20) Antone contends that the grand

1 him was improperly se-

ected. More than mere conclusory state-

ments are necessary to sustain

such a challenge See §§ 905.02-06 Fig

ury which ndict

mowever

M2 SOUTHERN REPORTER, 24 SERIES

Stat. (1977) He also contends that the

right w confront his accusers, the right &

counse!, and other constitutiona!

were violated by the instant grand jury

proceedings. The protections afforded by

the Bill of Rights, however, do not attach in

full to grant jury proceedings which are

inquisitoma! rather than adversary in na

See, eg. United States v Manduja-

564. 96 S.Ct. 1768, 48 L.Ed Bi

76); United States v. Dionisio, 410

. % S.Ct 764, 35 L.Ed.2d 67 (1973

Mara, 410 US 19,33 S.C

1973); In re Groban. 352

U.S. 330, 77 S.Ct. $10, 1 L.Ed 2d 376 (1957

mghis

ture

no, 425 US

[21] Antone finally urges, without elal

oration, that the first-degree murder stat

ule anc coe death penalty statute are un-

constitutional. These issues have been pre

viously rejected, and the law is now settle

Proffitt v. Florida, 428 US. 242, 9% S.Ct

2360, 49 LEd2d 913 (1976); Alvord

State, 322 So.2d $83 (Fia.1975), cert. denied

423 US. 923, 96 S.Ct. 3234, 49 L.Ed. 2d 1208

State v. Dixon, 283 So.2d 1 (Fla

1973), cert. denied, Hunter +. Florida, 416

US 43. 9 SCt 1950, 40 LEd2d 295

B. New Tria

Discovered Evidence

Upon Newly

Antone contends that he is entitled to a

new trial because of the discovery subse-

quent to trial that the FDCLE had paid an

attorney $11,500 to represent Hoskew. An-

tone argues that the failure to disclose this

information r-or to trial violates both Flor-

ida Rule of Criminal Procedure 3 200 and

the dictates of Brady v. Maryland and Unit

ed States v. Agura We remanded this

cause 'o the trial court, Antone v. State, 355

Sold 777 (Fial978), for an evidentiary

hearing to determine if a new trial should

be granted. The trial court denied a new

trial, and we agree

(22, 23)

controiied by the guidelines established in

The resolution of this issue is

4 , holding im this matter is consistent with the new Florida Evidence Code. effective July

979 «§ GOS. Fla Scat

Supp 1978)

. ) ANTONE v. ST rre®

Pia 1215

Cire as, Fla. 382 So 26 1206

Agurs. There the majority opinion outlined

three situations in which a Brady violation

might occur. The first situation occurs

when undisclosed evidence demonstrates

that the prosecution's case included per-

jured testimony. If the prosecution knew

or should have known of the perjury and

there is a reasonable likelihood that the

false testimony could have altered the

jury's judgment, then fundamental fairness

mandates that a new trial be granted. An-

tone contends that Haskew's testimony con-

cerning the plea bargain arrangement was

false, that the prosecution should have

known it was false, and that it could have

affected the judgment of the jury. We

cannot agree As the trial court reasoned

in its detailed order, questions asked of

Haskew both in deposition and at trial were

directed solely to the plea bargain agree-

ment. Taken in context, Haskew's answers

can fairly be characterized as truthful

(24,25) The second situation occurs

when a pretrial request for specific evi-

dence is made If the requested evidence is

withheld by the prosecution following & spe-

ofie request and the evidence is material—

meaning that it might have affected the

outcome of the trial—then a new trial must

te ordered) The Agurs court succinctly

stated “When the prosecutor receives a

specific and relevant request, the failure to

make any response is seldom, if ever, excus-

able.” 427 US. at 106, 96 S.Ct at 2398. In

the instant case defense counsel made only

general demands for “material or informa-

tion within the State's possession or control

which tends to negate the guilt of the De-

fendant " Antone’s attorneys

also filed a motion seeking disclosure of all

evidence favorable to the defendant We

therefore find this second situation not ap-

plicable Lecause no specific request was

ever made

[26] The third situation occurs when a

general request for Brady information has

been made and a failure to disclose has

followed. In this situation, the standard of

$. In a federal prosecution arising from the mur-

der of Cloud, the Fifth Circutt held that Has-

uew 's false testumony concerning payment of

attorney 5 fees did not require a new trial, be.

“materiality” which Agurs states must be

applied is as follows

The proper standard of materiality

must reflect our overriding concern with

the justice of the finding of guilt. Such a

finding is permissible only if supported by

evidence establishing guilt beyond a rea-

sonable doubt. It necessarily follows that

if the omitted evidence creates a reasona-

ble doubt that did not otherwise exist,

constitutional error has been committed

This means that the omission must be

evaluated in the context of the entire

record. If there is no reasonable doubt

about guilt whether or not the additional

evidence is considered, there is no justifi-

cation for a new trial. On the other

hand, if the verdict is already of question-

able validity, additional evidence of rela-

tively minor importance might be suffi-

cent to create a reasonable doubt.

427 US. at 112-13, 96 S.Ct at 2402 [foot-

notes omitted) Applying this test to the

undisclosed evidence of FDCLE’s payment

of Haskew's attorney's fees, we find that

Antone’s conviction must Stand. The evi-

dence in no way detracts from the testimo-

ny presented by the state which established

Antone’s guilt beyond and to the exclusion

of every reasonable doubt. At best, the

evidence was useful for impeachment of

Haskew, but it is not germane to Antone's

guilt or innocence. Further, and even more

significant, evidence tending to impeach

Haskew was already before the jury, and

this evidence would have added little to

defense efforts to show Haskew as a wit-

ness unworthy of the jury's belief. In addi-

tion, Haskew would have been entitled to

counsel in any event, and there is no show-

ing of any conspiracy between his counse!

and the state. Upon our remand, the trial

court found no evidence of deliberate prose-

cutorial misconduct. We agree. We find

the undisclosed evidence clearly fails to

meet the Agurs test of materiality, and a

new trial is therefore not required.*

cause revelation of the fact that such fees were

paid by the state would not reasorably have

affected the judgment of the jury. See United

States v. Antone, 603 F 2d 566 (Sth Cir 1979)

1216 Fis

C. The Sentencing Phase

[27-30] It is our duty to examine the

record in this cause and determine whether

there are clear and convincing facts which

warrant the imposition of the death penal-

ty. In accepting the jury recommendation

and imposing the death penalty, the tnal

judge found four statutory aggravating

factors. (1) Antone had been convicted vf

two felonies involving the threat of violence

to a person, specifically two armed robber-

es, which we find is appropriately an ag-

circumstance under section 921 -

145K 2) the murder had been commit-

pecuniary gain in that Antone re-

ceived at least $750 for his share of this

contract killing, and we find this ms an ap

propriate aggravating circumstance under

section 921.141(5Kf); (3) the murder was

‘ommitted to disrupt and hinder the en

forcernent of laws in that it prevented the

victim from testifying before a grand jury,

and we find thw is an appropriate aggra-

valing Creumstance Inder section 921.-

141(5%g), and (4) this murder was especia.-

y heinous, atrocious, and cruel in the man

ner in which it was carned out. Because of

yur recent decisions, there may be a qucs-

tion whether this is an appropmate aggra-

vating circumstance. See, e. g., Cooper

State, 336 So.2d 1133 (Pla 1976)

[31] The trial court found no mitigating

circumstances, and we agree (hat the record

The appellant as-

serts that he was only an accomplice in a

supports this finding

capita! felony committed by another person

and that his participation was relatively

minor. This contention is without merit

he facts in this case are clearly distin-

guishable from the facts and circumstances

in Slater v. State, 316 So.2d 539 (Fla. 1975)

Antone was the mastermind of this opera-

tion. He supplied the gun, paid the money

from his pocket, and pressured Haskew to

His participation cannot

under any view of this record, be termed

compicte the Lash

minor. Without Antone’s participation, the

murder would not have come to fruition

382 SOUTHERN REPORTER, 24 SERIES

[32, 33) Because we fully appr re

first three aggravating circumstances an!

find no mitigating circumstances, it is not

necessary to consider the appropriateness

the trial court's finding that the muriler

was heinous, atrocious, or cruel. An error

in finding this aggravating circumstance

does not invulidate the imposition | ne

death sentence. Elledge v. Slate, 6 Seo!

998 (Fla.1977); Alford v. State, 37 Se2

4233 (Fla 1975) The three approved agyr

vating circumstances are clearly sustain

by the record in this case, and there are

appropriate mitigating factors th

be taken into consideraly

For the reasons expressed, we affirn

conviction of Anthony Antone for

der of Richard Cloud and agree

death penalty is clearly an appropriate pur

shment in this caus

It ws so ordered

ENGLAND, @. J, and ADKINS, BOY!

OVERTON and SUNDBERG, JJ

Mary Hall WILLIAMS and Willet Wil

liama, her husband, Petitioners

HARTFORD ACCIDENT AND INDEM-

NITY COMPANY, a Foreign

Corporation, Respondent

No. 52115

Supreme Court of Florula

April 17, 1980

Rehearing Denied May 27, 19)

Woman injured in automotule accwlent

caused by the negligence of another driver

sued her sutomobile liabilit

y maurer lor

damages which exceeded the full amount

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND

FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA. CRIMINAL DIVISION.

v. Case No. 76-1356 te

Division D 7"

‘ ‘ ANTONE _

ORDER AND FINDINGS DENYING % =

MOTIONS FOR POST CONVICTION RELIEF

On January 6, 1982, the Governor of the State of

Florida signed a death warrant requiring the-execution of Anthony

Antone within the week of Friday, the 29th of January and noon

Friday, the 5th of February, 1982. On January 15, 1982 a Motion

for Post Conviction Relief was filed on behalf of Mr. Antone by

Messrs. Angelo Ferlita and Robert Nutter. At the request of

the State of Florida, an informal pre-evidentiary hearing

was held in Chambers relative to that Motion. In addition

to the above named attorneys, Mr. Tom McCoun, Attorney, was also

present. The Motion filed by Messrs. Ferlita and Nutter alleged,

essentially, that (1) there was newly discovered evidence |

which entitled Mr. Antone to a new trial; (2) that the State of

Florida had withheld exculpatory evidence from the defense at

the time of Mr. Antone's trial and (3) that the prosecution had

violated Florida Rule of Criminal Procedure 3.220 (a)(1)(i) by

failing to furnish the name and address of a witness. It was agreed

that until the Supreme Court of Florida allowed leave for permission

to apply for a Writ of Coram Nobis this court did not have juris-

diction to entertain the newly discovered evidence issue; neverthe-

less, that issues (2) and (3) above could be considered by way of

a Motion filed under Florida Rule of Criminal Procedure 3.850.

Consequently, it was agreed that although all three issues involved

EEE oo — an —_—

the same factual matter that an evidentiary hearing be held

as to issue (2) and (3) above on January 21, 1982 at 3:00 P.M.

At this pre-evidentiary hearing, it was brought out that

Mr. McCoun was also representing Mr. Antone and that he was

planning, or contemplating, filing another Motion for Post Con-

viction Relief raising other issues, among them, the issue of

ineffective assistance of counsel. This court instructed Mr.

McCoun that if he was going to file such a Motion to do so as

soon as possible and that any matters requiring an evidentiary

hearing would also be held on January 21, 1982.

On January 19, 1982, Mr. Antone, through Mr. McCoun filed

another Motion for Post Conviction Relief raising other matters,

among them being one alleging the ineffective assistance of his

state trial counsel.

These issues came on for hearing on January 21, 1982.

The hearing was conducted in two phases. The first phase involved

the Motion filed by Messrs. Ferlita and Nutter and the second _.

phase the Motion filed by Mr. McCoun.

The Ferlita and Nutter Motion

This Motion was predicated on the testimony of one

Robert Bruns. It can be said that Mr. Bruns was the witness that

"cracked" the murder of Detective Cloud. One Benjamin Gilford

began associating and, for a time, living with Mr. Bruns in

Bradenton, Florida. He told Mr. Bruns that he was the person who

had actually committed the Cloud murder and that this was but one

of a series of murders that he had been hired to commit. It

appears that sometime in February of 1976 Mr. Bruns was arrested on

a traffic offense. During this incarceration, he made contact

with law enforcement officers and reported to them what Gilford

had told him. Bruns was asked to assist the F.B.I. and State

officials in obtaining more information pertaining to the Cloud

o eo

murder. To this end he agreed to have electronic monitoring

devices placed on his person, home and van. This was done for

some three days beginning February 21, 1976. Subsequently,

Gilford was arrested and charged with the murder. Thereafter,

Ellis Marlow Haskew and Anthony Antone were arrested.

The difficulty began, it appears, after the Governor

signed Antone's death warrant. Bruns contacted Attorney Ferlita

and in a deposition told Messrs. Ferlita and Nutter that Gilford

had told him that while Antone did provide the money after the

murder that Antone did not know anything about the Cloud murder

until after it had occurred; that when he learned why Victor

Acosta had given him this money he became upset and hesitated in

making the payment. This deposition was attached as an Exhibit

to the Motion filed by Messrs. Ferlita and Nutter wherein they

contended that the State had withheld exculpatory evidence from

the defense and had violated Rule 3.220 (a)(1)(i) in not listing

Bruns as a witness pursuant to a defense demand for discovery.

Numerous witnesses testified before me at this hearing,

among them Bruns, E. D. Williams of the Tampa Police Department,

David Malarney and Jim Blatley of the F.B.I. and Aaron Bowden,

the Attorney who prosecuted the case in behalf of the State of

Florida.

While continuing to insist that Gilford had told him that

Antone did not know anything about the Cloud murder until after

it occurred, Bruns readily admitted that he never told any law

enforcement official, either State or Federal, of this ract. His

testimony was that since his conversations with Gilford were

monitored and recorded they must have heard it. Prior to the

hearing, copies of the tape recordings were delivered to Messrs.

Ferlita and Nutter. From the :estimony and representations made

to this court it is manifest that the recordings were inaudible.

e *

None of the witnesses who testified that they participated in the

monitoring of the conversations between Gilford and Bruns could

testify that they heard any such conversations primarily because the

-sations were difficult to hear while they were monitoring.

Furthermore, Bruns testified that prior to his being

with those monitoring devices, he talked with Agent David

Malarney of the F.B.I. on February 20, 1976. Agent Malarney testi-

fied that on that date and time Bruns told him that Gilford had

related to him that Haskew and Gilford were hired to do the

shooting by an individual known to Gilford as “Anthony” and that

"Anthony" had supplied the murder weapon. While Gilford did

not know who Anthony was, he did have his telephone number. Agent

Malarney testified that when Gilford was arrested he had on his

person a telephone number to an "Anthony" which turned out to be

Anthony Antone.

E. D. Williams of the Tampa Police Department also testified

that in a conversation with Bruns, Bruns related that Gilford had

told him that the murder had been set up by one “Anthony”.

Aaron Bowden, the Attotney who prosecuted the case for the

State of Florida, admitted that Bruns’ name was not placed on any

witness list, but stated that there was no malicious purpose

behind this. His reasoning was first, that Bruns’ testimony

while incriminating Antone was inadmissible because rank hearsay;

and, second, because he was not aware of any exculpatory or favorable

evidence to Antone that Bruns could provide. Bruns' name was

apparently listed as a witness in the case against Benjamin Gilford

because his deposition was taken on June 2, 1976 by Mr. Richard C.

Edwards, Assistant Public Defender, representing Gilford.

After hearing the testimony and considering the arguments

of counsel, Memorandum of Law, the briefs on appeal, the decision

of the Supreme Court of Florida in Antone v. State, 355 So.2d 777

abe

(Fla. 1977) and otherwise being fully advised in the premises;

I find:

1. That prior to the trial of Anthony Antone and until

such time as Robert Bruns made the above described disclcsures

to Messrs. Ferlita and Nutter, no State or Federal official was

aware of any possible exculpatory or favorable evidence that Mr.

Bruns could provide in behalf of the defendant, Anthony Antone;

thus neither the precepts of Brady v . Maryland, 373 U.S. 83,

10 L. Ed. 2d 215, 83 S. Ct. 1194 nor any of its progeny were

violated. Furthermore, I thd, in view of the questionable

admissibility of Bruns' testimony and in view of the overwhelming

evidence produced at defendant's trial, that even if there had

been, which there was not, a specific request for this evidence

there is no reasonable likelihood that it could have affected the

outcome of the trial or sentence. See United States v. Agurs,

427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976).

2. That while there was a technical violation of

Florida Rule of Criminal Procedure 3.220 (a)(1)(i), the violation

was not wilfull or malicious and the defendant Antone was not harmed

nor prejudiced by this violation. Bruns was not used eas a witness

by the State. The admissibility of his alleged exculpatory

testimony is highly questionable and even if it would have been

admissible it is patently unbelievable in view of all of the facts

surrounding this case. Consequently, as with the alleged "Brady"

violation, I find that even if his name had been furnished to the

defense under the rules of discovery, there is no likelihood it

could have affected the outcome of the trial or sentence.

The McCoun Motion for Post Conviction Relief

After hearing the Ferlita and Nutter Motion, the Court

took up the matter of the McCoun Motion. At the outset, Mr. McCoun

requested a continuance and asked this court to appoint some experts

so that they could review and analyze the record and files and

e am

testify with respect to the effectiveness of Mr. Antone's

representation at his trial. This request for a continuance was

vigorously opposed by the State. In view of the fact that the

Supreme Court of the United States had denied certiorari on

October 14, 1980 and denied rehearing on December 8, 1980 and

he fact that no proceedings for post conviction relief were

instituted by Mr. Antone throughout the year between the tim

certiorari was denied and the Governor signing the warrant and

in fact were not instituted until after the warrant was signed,

I denied the requested continuance.

I also denied the request for the appointment of experts.

Mr. McCoun wanted attorneys called as experts to testify with

respect to ineffectiveness. The Florida Evidence Code 90.702

provides that an expert may be used if scientific, technical or other

specialized knowledge would assist the trier of the fact in

understanding the evidence. As an Attorney, former Assistant

State Attorney and Circuit Judge, I did not deem it necessary to

have an expert assist me in understanding the evidence. Conse-

quently, I denied the Motion for the appointment of experts.

Mr. Antone, through his counsel, Mr. McCoun, called two

witnesses to testify. The first was Antone, himself who testified

briefly to the effect that he was arrested at his home without

a warrant.

The second witness that was called was Mr. Richard C.

Edwards, the attorney who represented Benjamin Gilford. He testi-

fied that there was extensive publicity surrounding the Cloud

murder and while Gilford pled guilty he asked for a change of

venue as to the sentencing phase. He opined that in a case such

as Antone's a change of venue should be requested. An Exhibit

containing photostatic copies of newspaper clippings concerning

the Cloud murder were also introduced in evidence. On cross -

examination he admitted that one consideration militating against

a e

requesting a change of venue would be the ties in the community

of the defendant and/or his attorneys.

In rebuttal by the State, James Alfonso, Attorney, testified

that he assisted Mr. Ferlita in the prepavation and trial of the

case and that they actively considered and discussed with Mr.

Antone whether to ask for a change of venue. Mr. Antone, himself

was opposed because he and his attorneys were relatively well

known in the community and they could not assure him where the

new venue would be if a request were granted.

Mr. Edwards also testified that in his opinion, a defense

attorney, in a capital case should be ever vigilant to assure

that no juror is excused for cause in violation of Witherspoon v.

Illinois, 391 U.S. 510 (1968), but admitted he was unfamiliar with

the jury selection procedures that occurred in the Antone case.

At the request of the State, I personally reviewed the

transcript of the jury selection. I find that the jury was

relatively easy to select; that few jurors had read or heard about

the case or if they had, formed an opinion and that no juror

was improperly excused for cause in violation of Witherspoon.

At the conclusion of the testimony, I again inquired

of Mr. McCoun whether there was any further testimony to present on

ineffectiveness and that if he wished to call Mr. Ferlita who was

present and to make any inquiries of him on the issue of ineffective-

ness he was free to do so. Mr. McCoun declined.

I therefore make the following findings, based on the

evidence presented, memorandums, briefs of counsel on appeal

and a review of the record:

1. That Anthony Antone was represented by reasonably

competent and effective counsel and did in fact receive in

preparation of, and during the course of his trial, effective

assistance of counsel. In making this finding, I am cognizant

if mi

that his was a capital case and am considering this fact in my

overall determination of this finding. Washington v. Watkins,

655 F. 2d 1346 (5th Cir. 1981).

2. That his counsel did not render ineffective assistance

by virtue of not having requested a change of venue inasmuch

as this was a considered decision between attorney and client,

atches v. United States, 582 F. 2d 453 (8th Cir. 1978),

eynolds v. Mabry, 574 F. 2d 978 (8th Cir. 1978), nor do I find

from the evidence presented or a review of the record that counsel

was ineffective with respect to Witherspoon. My perusal of the

record discloses that each and every juror that was excused for

cause was justifiably excused.

Ineffective Assistance of Counsel on Appeal

As to this issue I find that I am without jurisdiction

to consider. See Knight v. State, 394 So.2d 997 (Fla. 1981).

In addition to his ineffectiveness claims, Mr. McCoun

raised several other issues: I find that these were issues that

were properly raisable on direct appeal and therefore not subject

to collateral attack. State v. Matera, 266 So.2d 661 (Fla. 1972);

Meeks v. State, 382 So.2d 673 (Fla. 1980); Goode v. State, 403 So.2d

931 (Fla. 1981); Witt v. State, 387 So.2d 922 (Fla. 1980).

These issues were:

l. That the precepts of Witherspoon v. Illinois, 391 U.S.

510 (1968) were violated;

2. That Antone was arrested at his home without a warrant |

in violation of Payton v. New York, 445 U.S. 373 (1980);

3. That Antone had been denied a fair trial by virtue

of sundry trial errors; and

4. That the judgment and sentence of death violates the

Eighth and Fourteenth Amendments to the Constitution of the United

States.

\ *

On the Payton issue, counsel for Antone contended that

since there was a change in the law, it could now be raised by

way of 3.850. But to my knowledge, neither the Supreme Court

of Florida nor the Supreme Court of the United States has held

Payton to be retroactive. Until either one or the other does so,

1 feel I am bound by the decision of Witt v. State, supra.

At the time of Antone's trial the law in Florida was that an

arrest of one in his home without a warrant did not violate the

Fourth Amendment. State v. Perez, 277 So.2d 778 (Fla. 1973),

certiorari denied 414 U.S. 1064, 38 L. Ed. 2d 468.

I am hereby directing the Clerk of this Court to immediately

epare and certify the record of these proceedings including the

pleadings and other orders entered by this court pertaining to

these proceedings and cause them to be delivered to the Supreme

Court of Florida post haste. 4

DONE AND ORDERED this 5 day of January, 1982.

Circuit Judge

ANTONE v. STATE

Fis 157

Cue om Fila, 410 Sede 157

r without any questions being asked, told

he officers that the boat was loaded with

marijuana. At that time the officers clear-

y had probable cause to believe that the

defendants boat was carrying marijuana

The boat itself was fully mobile, and the

estion of whether it could have been ac-

irrelevant. Chambers v. Maroney

Completely independent of the Carroll

xceptuion, | believe the search of the hok!

was within the constitutionally permissible

scope of the search-inerdent-to-arrest excep-

on. In Chimel v. California, 395 U.S. 752,

a9 S.Ct 2KH, 2 LEd 2d 685 (1968), the

Supreme Court f the United States hekl

hat where there has been a lawful custorli-

a! arrest, the officers are justified in mak-

ng 2 contemporaneous warranticss search

f the arrested person in order to remove

any weapons Lhal the arrestee may seex to

se in order effect his escape of resist

arr and in order to serze any evidence on

he arrestee s person to prevent its conccul-

¢ str on. The court also hell

rormer a2 contemporaneous scarch f LP

r mea stely surround ng the arrest

r me purposes. These scarches may~

” : “whether or not (here ts protal vic

Delve hat ne person arrest«:!

- . .« on or w about to destroy

‘ c the potenta langers

aing al slocial arrests make war

s searches of items within the “im-

nir area reasonable The ar

r ng {fice s ™% required aculale

n r 4 hal weapons or destructith

‘ nee win o United States

hadwick, +h oa a 2 276, 53

L Bal 2 538 (1977), United States v. Rob

son, 414 US 218, 94 S.Ct. 467, 3 LEd 2

{277 (197 The fact of lawful arrest, alom

authorzes the warrantless search Michi-

gan DeFellippo, 43 US. 31, 9 S.Ct

2627, 61 L Ed 2d 343 (1979

Acknowleiging the difficulty courts have

neou nlere fh respect to the proper sco;

f what is meant by the area within the

mmediate control of an arrestee, particu-

arly in automolule cases, the Supreme

Court of the United States in New York +

Be 449 US 1109, 101 SCt 917, 6

Ed 24 538 (1981), held that when a police-

man has made a lawful custodial arrest of

the occupant of an automobile, he may,

incxlent lo the arrest, contemporaneously

search the passenger compartment of that

automobile. This includes, explained the

court, a search of any containers found

within the passenger compartment whether

the container is opencd or closed. In Bei-

ton, Une occupants of the car had been

ordered to get out of the car and had been

placed under arrest prior to the officer's

searching of Une passenger compartment

In the present case, there is no question

that the search was conducted immediately

upon arrest of the defendants, and the hold

of the boat was easily accessible to the

defermlants. It is not inconceivable that the

teferiants may have had weapons hidden

in the hold or that armed accomplices could

have lwen huling there, merely waiting an

yportunity to surprise the officers and to

thwart the arrest of defendants

t is not inconceivable that defendants could

have quickly reached the hold and attempt-

ol to destroy the evidence by throwing it

Likewise,

verimarnt - >

Accorlingly, | would hold thai the sto;

and search and seizure were constilulional,

and therefore | would quash the decision of

vw mtr vurt

McDONALD, J

| =D

concurs

Anthony ANTONE, Petitioner/Appellant,

STATE of Florida, Respondent/ Appellee.

Nos. 61594, 61621 and 61622.

Supreme Court of Florida

Jan. 2, 1982

On writs of error coram nobis and ha-

eas corpus and on appeal from denial by

158 Fis.

the Circuit Court, Hillsborough County, Ar-

den M. Merckle, J., of defendant's motions

for postconviction relief, the Supreme Court

held that: (1) newly discovered evidence,

which would have had effect of impeaching

defendant's own testimony and change to-

tally his theory of defense, did not mect

test of coram nobis that the alleged facts

must be of such vital nature that had they

been known to trial court they conclusiveiy

would have prevented entry of the judg-

ment; (2) trial judge's ruling that there

was no actual suppression of favorable evi-

dence by the State was supported by the

evidence; and (3) State's failure to disclose

name of its witness was not so prejudicial

that it required vacation of judgment and

sentence

Motions denied; order affirmed

1. Criminal Law @ 997.8

Newly discovered evidence, which

would have had effect of impeaching le-

fendant's own testimony and change totally

hia theory of defense, did not meet test of

coram nobis that the alleged facts must be

of such a vital nature that had they been

known to trial court they conclusively

would have prevented entry of the jurg-

ment

2. Criminal Law @ 1154(4)

Trial judge's ruling that there was no

actual suppression of favorable evidence by

the State was supported by the evidence

3. Constitutional Law = 268(5)

In absence of actua! suppression of [a-

vorable evidence, prosecution does not vic-

late due process by denying discovery US

C.A Const Amend. 14. 2

4. Criminal Law @ 1166(1)

Prosecution's failure to disclose name

of its witness was not so prejudicial so as to

require vacation of defendant's judgment

of conviction and sentence. West's FSA.

Rules Crim.Proc., Rule 3.220.

5. Criminal Law @=996(3)

Any issue concerning selection of de-

fendant's jury could have been raised in his

first appeal to the Supreme Court and was

410 SOUTHERN REPORTER, 24 SERIES

not a matter that wouk! support a collateral

attack.

6. Courts = 1001)

Decision involving warranticss seizure

of inculpatory evidence appearing in plain

view after officers broke into suspect's

home at a time when suspect was not there

was not a “change of law” to he retroac-

tively applied to situation of defendant,

who was arrested in his residence without a

warrant.

7. Criminal Law 641.131, 7)

Defendant was provided reasonably ef-

fective assistance of counse! in al! stages of

his trial and appeal

8. Criminal Law & 994(3)

’ Issue toncerning jury instructions as to

mitigating factors cou! have been raised in

defendant's first appeal to the Supreme

Court and was not a matter which would

support collateral atlack

Thomas D. McCoun, II! of Louderback &

McCoun, St. Petersburg, for petitioner/ap-

pellant

Jim Smith, Atty. Gen, George R. Geor-

gieff, Asst. Deputy Atty. Gen, Tallahassee,

and Charles Corces, Jr, Asst. Atty Gen,

Tampa, for respondent/appelice

PER CURIAM

We have for our consideration a motion

for stay of execution, a petition for writ of

error coram nobis asking the Court to grant

a new trial on grounds of newly discovered

evielence, and an expedited appeal from s

denial of two motions for post-<onviction

relief under Florida Rule of Criminal Proce-

dure 3.850. The factual bases for the coram

nobis petition are also included in the

grounds of one of the motions for 3.850

relief. This Court originally affirmed the

conviction and sentence of death in our

decision reported as Antone v. State, 382

So.2d 1206 (Fla), cert. denied, 49 US. 913,

101 SCt. 287, 66 LEd2d 141 (1980) A

detailed statement of the facts of this case

is contained in that opinion. For the rea-

ANTONE v. STATE

Pia. 159

Che on Fla. 410 See 157

sons expressed, we deny the relief request-

ed and deny the motion for stay of execu-

tion

In this consolidated proceeding, appellant

seeks relief claiming (1) newly discovered

evidence which assertedly is exculpatory

and was withheld by the state in violation

of Brady v. Mary/and, 373 US. & @SCt

1194, 10 L.Ed 2d 215 (1963), and United

States v. Agurs, 427 U.S. 97, 96 SCt. 2392,

49 LE’ 2 $2 (1976), (2) the exclusion of

certain prospective jurors contrary to (he

nrinciple ' Witherspoon v. Iilinots, 391

US 510, 8 SCt 1770, 2 LEd2d 776

1968), (3) the warrantless arrest of appel-

ant Antone in his home in violation of the

onnciples announced in Payton v. New

York, 445 US. 573, 100 SCt 1371, &

L.Ed 24 639 (1980); (4) multiple errors in

the omginal trial; (5) ineffective assistance

of counsel, and, (6) the failure of the trial

court in the penalty phase to properly in

struct the jury concerning the mitigating

circumstances it could consider in making

ts recommendation to the trial judge The

trial court denied relief on the 3450 mo

tions after a full evidentiary hearing In

that proceeding, counsel for both parties

agreed that the trial judge had no jurislic-

tion of the coram nobis application, that

jurisdiction being solely in the Suprem

Court of Florida

The trial court, in denying relief on the

sue of newly discovered evidence and on

the assertion that the state improperly

withheld exculpatory evidence, made (hm

following factual findings

This Motion was precicated on the tes-

timony of one Robert Bruns. It can he

said that Mr Bruns was the witness that

“cracked” the murder of Detective Cloud

ine Benjamin Gilford began associating

and, for a Ume, living with Mr Bruns in

Bradenton, Flomda. He told Mr. Bruns

that he was the person who had actually

committed the Cloud murder and that

this was but one of a serics of murders

that he had been hired to commit. It

appears that sometime in February of

1976 Mr. Bruns was arrested on a traffic

offense. During this incarceration, he

marie contact with law enforcement offi-

cers and reported to them what Gilford

hal told him. Bruns was asked to assist

the F.B.1. and State officials in obtaining

more information pertaining to the Cloud

murder. To this end he agreed to have

electronic monitoring devices placed on

his person, home and van. This was done

for some three days beginning February

21, 1976 Subsequently, Gilford was ar-

rested and charged with the murder

Thereafter, Ellis Marlow Haskew and

Anthony Antone were arrested

The difficulty began, it appears, after

the Governor signe! Antone’s death war-

rant. Bruns contacted Attorney Feriita

arc] in a deposition told Messrs. Feriita

am! Nutter that Gilford had told him that

while Antone did provide the money after

the murtler that Antone did not know

anything about the Cloud murder until

after it had occurred, that when he

learned why Victor Acosta had given him

this money he became upset and hesitat-

cl in making the payment. This deposi-

tion was attached ag an Exhilut to the

Motion file! by Mesars. Ferlita and Nut-

ter wherein they contended that the

State had withheld excelpatory evidence

from the defense and had violated Rule

3 22NaW1i) in not listing Bruns as a

witness pursuant to a defense demand for

€ moovery

Numerous witnesses testified before

me at this hearing, among them Bruns, E

D Williams of the Tampa Police Depart-

ment, David Malarney and Jim Biatley of

the F BI. and Aaron Bowden, the Attor-

ney whe prosecuted the case in behalf of

the State of Florida

While continuing to insist that Gilford

had told him that Antone did not know

anything about the Cloud murder until

after it occurred, Bruns readily admitted

that he never told any law enforcement

official, either State or Federal, of this

fact. His testimony was that since his

conversations with Gilford were moni-

tored and recorded they must have heard

it. Prior to the hearing, copies of the

taje recordings were delivered to Messrs

Ferlita and Nutter. From the testimony

ere. eee Ome

160 Fla

and representations made to this court it

is manifest that the recordings were inau-

dible. None of the witnesses who testi-

fied that they participated in the moni-

toring of the conversations between Gil-

ford and Bruns could testify that they

heard any such conversations primarily

because the conversations were difficult

\o hear while they were monitoring

Furthermore, Bruns testified that prior

to his being equipped with those moniior-

ing devices, he talked with Agent David

Malarney of the F.B.1. on February 20,

1976. Agent Malarney testified that on

that date and time Bruns told him that

Gilford had related to him that Haskew

and Gilford were hired to do the shooting

by an individual known to Gilford as

“Anthony” and that “Anthony” had sup-

plied the murder weapon. While Gilford

did not know who Anthony was, he clic

have his telephone number. Agent Ma-

larney testified that whep Gilford was

arrested he had on his person a telephone

number to an “Anthony” which turnc:

out to be Anthony Antone

E. D. Williams of the Tampa Policc

Department also testified that in a con-

versation with Bruns, Bruns related that

Gilford had told him that the murder had

been set up by one “Anthony.”

Aaron Bowden, the Attorney who pros-

ecuted the case for the State of Floricla,

admitted that Bruns’ name was not

placed on any witness list, but stated that

there was no malicious purpose behind

this. His reasoning was first, that Bruns’

testimony while incriminating Antone

was inadmissible because rank hearsay;

and, second, because he was not aware of

any exculpatory or favorable evidence to

Antone that Bruns could provide. Bruns’

name was apparently listed as a witness

in the case against Benjam’~ Gilford be-

cause his deposition was tak«- on June 2,

1976 by Mr. Richard C. Edwards, Assist-

ant Public Defender, representing Gil-

ford.

Upon these facts, the trial judge ruled as

follows:

410 SOUTHERN REPORTER, 2d SERIES

1. That prior to the trial of Anthony

Antone and until such time as Rolert

Bruns mace the above described disclo

sures to Messrs. Ferlita and Nutter, no

State or Federal official was aware of

any possible exculpatory or favorable evi-

dence that Mr. Bruns could provide in

behalf of the defendant, Anthony An-

tone; thus neither the precepts of Brady

v. Maryland, 373 U.S. 831, 8 S.Ct 11M,

10 L.Ed 2d 215 nor any of its progeny

were violatcd. Furthermore, | find, in

view of the questionable admissibility of

Bruns’ testimony and in view of the over-

wheiming evidence produced at defend-

ant’s trial, that even if there had been,

which there was nol, a specific request

for this evidence there is no reasonable

likelihood that it could have affected the

Outcome of the trial or sentence See

United States v. Agurs, 427 US. 97, %

S.Ct. 2392, 49 L.Ed.2s 342 (1976)

2 That while there was a technical

violation of Florida Rule of Crimina! Pro

crlure 3.220(a 1), the violation was not

wilfull or malicious and the defendant

Antone was not harmed nor prejudiced

by this violation. Bruns was not used as

a witness by the State. The admissibility

of his alleged exculpatory testimony is

highly questionable and even if it wouid

have been acdmissilde it is patently unte-

‘ evable in view of all of the facts sur-

rounding this case. Consequently, as

with the alleged “Brady” violation, | find

that even if his name had been furnished

to the defense under the rules of dis-

covery, there is no likelihood it could have

affecter| the outcome of the trial or sen-

lence

The trial judge further determined that

counsel was reasonably effective, finding

1. That Anthony Antone was revre-

sented by reasonably competent and ef-

fective counsel and did in fact receive in

preparation of, and during the course of

his trial, effective assistance of counsel.

In making this finding, | am cognizant

that his was a capital case and am con-

sxiering this fact in my overall determi-

nation of this finding. Washington v.

Watkins, 655 F.2d 1346 (5th Cir. 1981).

ANTONE v. STATE

Pa 161

Che as, Pin, 490 Sede 157

2 That his counsel did not render in-

effective assistance by virtue of not hav-

ing requested a change of venue inas-

much as this was a considered decision

between attorney and client, Catches v.

United States, 582 F.2d 453 (8th Cir.

1978), Reynolds v. Mabry, 574 F.2d 978

(Sth Cir. 1978); nor do I find from the

evidence presented or a review of the

record that counsel was ineffective with

respect to Witherspoon. My perusal of

the record discloses that each and every

juror that was excused for cause was

justifiably excused.

The tris! judge concluded by rejecting

the contention that the recent United

States Supreme Court decision in Payton v.

New York, decided four years after An-

tone's trial, required a reversal for a new

trial and by finding that the other conten-

lions were not proper for collateral relicf

since they dealt with issues which coukl

have been raised on the initial appeal before

this Court

We arc in total accord with the findings

f the trial judge and commend him for the

manner in which he detailed his reasons in

his order Because of the nature of this

proceeding, we deem it appropriate to fully

duseuss the principal issue argued cor sern-

ing the asserted newly discovered evidence

which the witness Robert Bruns brought to

the attention of the attorneys for appellant

Antone, and the resulting assertion that the

failure of the state to disclose Robert Bruns

as a witness was a fatal error under Brady

and our rules of criminal procedure requir-

ng a reversal and a new trial

The testimony of the newly discovered

witness, Bruns, is sccurately reflected in

the trial court's findings. It is clear that

Rruns never told any law enforcement of fi-

cial, cither state or federal, that Gilford told

him that Antone only participated in the

murder after the fact and that Antone’s

only involvement was reluctantiy paying

the money after Cloud was killed. These

conversations allegedly occurred on or

about February 20, 1976, and Bruns testi-

fied by deposition in Gilford’s proceeding.

Gilford pleaded guilty in June of 1976, and,

one month later, committed suicide. Appel-

lant's trial commenced on August 23, 1976.

It was clearly established in three seps-

rate parts of the testimony of Haskew, the

statc’s primary witness in Antone’s original

trial, that Victor Acosta was the moneyman

who wanted the victim, Detective Cloud,

killed. First, Haskew testified that Antone

had told him that Victor Acosta wanted

five people killed when he asked Haskew to

come to Tampa Next, Haskew testified

that Antone had called Haskew to his house

and asked him to try out a 32 automatic

with a silencer that Acosta had furnished

Antone. And, finally, Haskew testified

that ten days prior to the murder Antone

had told him that Acosta was insistent that

Cloud be killed because he was afraid that

Cloud was going to be reinstated as a police

officer.

that Antone hired Gilford and Haskew to

kill Detective Cloud, directed them to

Cloud's residence, furnished them with a

pistol with a silencer which was packed

with fiber-frém an air-conditioning filter

four at Antone’s home, and that Antone

had this weapon tested in his home by hav-

ing it fired imto a couch in his den. These

facts, established by Haskew's testimony,

were corroborated by the presence of a

bullet in the couch which matched the bul-

let that killed Detective Cloud and by the

discovery in Antone’s shed of blue air-condi-

tioner filter fiber which matched that used

in the silencer. Bruns’ testimony that An-

tone was the middleman was not new evi-

dence; that fact had been established dur-

ing the course of the original trial testimo-

ny. Antone was a middleman who organ-

ized, set up, and masterminded the actual

killing.

The claim that Gilford told Bruns that

Antone didn’t know about the killing until

after it occurred was not known by the

enforcement or prosecutorial officials

Further, it was not even asserted as a de-

fense in the trial or penalty phase that

Antone was only a participant after ‘he

fact. An examination of the entire record

in this case, particularly an examination of

om ©

162 Fa 410 SOUTHERN REPORTER, 2d SERIES

appellant's own testimony, reflects that this

was not the theory of the defense. Appcl-

lant Antone not only denied having “any-

thing to do with the Richard Cloud killing,”

but also, in his direct testimony, responded

to the question, “... did you ever meet or

know a man by the name of Buck Gilfoni?",

by answering, “No, I've never met him.”

In effect, what appellant Antone is at-

tempting to do in this proceeding is to of-

fer, through the testimony of Bruns, the

statement of Gilford to impeach his own

testimony and to change totally his theory

of defense.

{1] In addition, Gilford, whose state-

ment was simply repeated by Bruns, com-

mitted suicide prior to this trial and, conse-

quently, the admissibility of Bruns’ testimo-

ny under these circumstances is questiona-

ble. Assuming that it would have been

admissible in either the trial or penalty

phase, given the totality of the evidence in

the original case, we find that this newly

discovered evidence still does not meet the

test of coram nobis which requires “that the

alleged facts must be of such a vital nature

that had they been known to the trial! court,

they conclusively would have prevented the

entry of the judgment.” Hallman v. State,

371 So.2d 482, 485 (Fia.1979).

[2,3] Next, with reference to the assert-

ed failure of the state to advise Antone of

this allegedly exculpatory evidence, we ful-

ly agree with the finding of the trial judge

that the state did not have knowledge of

Gilford’s statement to Bruns regarding An-

tone’s ignorance of Cloud's murder until

after it occurred and his after-the-fact par-

ticipation in paying the money. The ruling

of the trial judge is supported by the evi-

dence, and we find there was no actual

suppression of favorable evidence by the

state. The law is clear that in the absence

of actua! suppression of favorable evidence,

the prosecution does not violate due process

by denying discovery. Giles v. Maryland,

386 U.S: 66, 87 S.Ct 793, 17 L.Ed.2d 737

(1967); Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The next issue raised concerns a violation

of our criminal rules of discovery. We ree-

ognize that under Florida Rule of Criminal

Procedure 3.220, the prosecutor is required

to disclose to defense counsel the names and

addresses of all persons known Lo the prose-

cutor to have “information which may be

relevant to the offense charged, and to any

defense with respect thereto.” Our rule of

discovery is a procedural rule which re-

quires reciprocal action by the defendant as

well as the prosecution, and it has been

approved by the United States Supreme

Court. Williams v. Florida, 399 U.S. 78, 90

S.Ct. 1893, 26 L.Fd.2e 446 (1970). The pur-

pose of this procedural discovery rule is to

make our criminal justice system more effi-

cient by avoiding multiple adversary pre-

trial evidentiary hearings previously used

by defendants to obtain discovery informa-

lion.

[4] The issue on this point is whether

the failure to disclose the name of the wit-

ness Bruns was so prejudicial that it re-

quires a_vacation of the judgment and sen-

tence. Although the trial judge found that

Bruns’ name should have been made known

to the defense under our procedural rule,

we find that the appellant was not preju-

diced in his defense by the lack of this

information. We note that the person mak-

ing the statement was dead at the time of

the trial and that Antone denied at the trial

ever having known him. Under the cireum-

stances of this case, we find neither a con-

stitutional violation of the Brady doctrine

nor prejudice to appellant by the procedural

violation of our discovery rules.

[5] The claim by appellant that the

Prosecution excluded all jurors with death

penalty scruples by using both its peremp-

tory challenges and its challenges for cause,

thus circumventing the principle established

in Witherspoon v. Illinois, 391 U.S. 510, 88

S.Ct. 1770, 20 L.Ed.2d 776 (1968), is without

merit. Dobbert v. State, 409 So.2d 1053,

(Fla. 1982). Any issue concerning this specif-

ie jury selection could have been raised in

Antone’s first appeal to this Court, and this

is not a matter that will support a collateral

attack. Spenkelink v. State, 360 So.2d 88

(Fla.), cert. denied, 434 U.S. 960, 98 S.Ct.

me ea Mh Cera: tent

Che os, Pia. 410 Se.3d 157

492, S4 LEd2d 320 (1977); Sullivan v.

State, 372 So.2d 938 (Pia.1979).

{6} Appellant further contends that the

judgment and sentence are unconstitutional

because Antone was arrested without a

warrant in his residence, contrary to the

decision of the United States Supreme

Court in Payton v. New York, 445 U.S. 573,

100 S.Ct. 1371, 63 L_Ed.2d 639 (1980). Ap

pellant argues that, even though Payton

was decxied four years after appellant's

conviction and sentence, the law announced

in that case should be given retroactive

application. First, it should be noted that

Payton is distinguishable from the instant

case. In Payton, the officers acted without

a warrant and. after breaking into Payton's

home looking for him, saw and scized incul-

patory evidence that appeared in plain

view. Payton was not even present at the

time. In the instant case, although Antone

was arrested without a warrant in his pwn

home, nothing was seized at the time of his

arrest. The seizure of items within the

premises was accomplished under a search

warrant hased almost entirely on informa-

ion acquired prior to Antone’s arrest. Fur-

ther, we beheve that our decision in Witt v.

State, 387 So.2d 922 (1980), controls and

that Payton is not a “change of law” which

requires retroactive application

[7] The multiple asserted errors mace

by the trial court in the original proceeding

are matters that could have been raised in

the first appeal to this Court and do not

support a collateral attack. Spenkelink;

Sullivan. We also reject the claims of inef-

fective assistance of trial and appellate

counsel. For the purposes of this proceed-

ing. We treat the issue of ineffective assist-

ance of appellate counsel as a petition for

writ of habeas corpus. After another care-

ful review of the record, we find that there

was no substantial deficiency of counsel in

cither the trial or appellate portion of this

Fla 163

cause. Under the test we enunciated in

Knight v. State, 394 So.2d 997 (1981), this

appellant was provided reasonably effective

assistance of counsel in all stages of this

proceeding.

{8} Finally, appellant asserts that the

trial court limited jury consideration of mit-

igating factors to those set forth in the

statute. From our review of the record, no

limitation was placed on appellant at the

time of the original trial, and no showing

has been made that he was denied an oppor-

tunity to present to the jury any mitigating

evidence. The appellant did not request

that any additional mitigating factors be

included in the instructions, and the stan-

dard jury instruction in force at the time of

trial was presented without objection.

That instruction did noi expressly limit the

mitigating factors to those identified in the

statute. Again, this was an issue that could

have been raised in appellant's first appeal

to this Court and is not a matter which may

support collateral attack. Spenkelink; Sui-

livan ‘

=The petition for writ of coram nobis is

denied, and the order of the trial court

denying appellant Antone’s motions for

3.850 relief is affirmed. We also deny the

claim of ineffective appellate counsel, which

we treat as habeas corpus. Finally, the

motion for stay of execution is denied. No

motions for rehearing will be entertained.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD,

OVERTON, ALDERMAN, McDONALD

and EHRLICH, JJ., concur.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ANTHONY ANTONE,

Petitioner,

vs.

CLAYTON STRICKLAND, Super-

intendent, Florida State

Prison, LOUIE L. WAINWRIGHT,

Secretary Florida Department

of Offender Rehabilitation, and

JIM SMITH, Attorney General,

State of Florida,

Case No: a7- F 2-¢ A SCE.

Respondents.

PETITION FOR WRIT OF HABEAS CORPUS

The Petitioner, ANTHONY ANTONE, by and through his under-

signed attorneys, hereby petitions this Court for the issuance

of a Wric of Habeas Corpus, purevent to 28 U.S.C. §2241, and

in support thereof, states:

-. HISTORY OF PRIOR STATE COURT PROCEEDINGS

l. The Judgment and Sentence of Death which is the

subject of this proceeding was entered by the Circuit Court

for the Thirteenth Judicial Circuit, in and for Hillsborough

County, Florida, Tampa, Florida.

2. The date of the Judgment and Sentence of Death

was August 27, 1976. Sentence was imposed on August 27, 1976.

3. Petitioner was sentenced to death upon conviction

for Murder in the First Degree by the trial court's acceptance

of the jury's recommendation of death. The trial judge presiding

throughout Petitioner's trial was the Honorable Herboth S.

Ryder, Circuit Judge.

4. Petitioner was convicted of Murder in the First

Degree.

5. Petitioner entered a plea of Not Guilty to the

offense charged.

6. Petitioner was afforded a trial by jury.

7. Petitioner did testify during the guilt phase

of his bifurcated trial.

8. Petitioner appealed from the Judgment and Sentence

of Death to the Supreme Court of Florida.

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9(a). On February 16, 1978, the Supreme Court of

Florida remanded Petitioner's cause to the trial court for

determination of whether there had been a Brady and Agurs vio-

lation committed by the State prior to or during Petitioner's

trial, Antone v. State, 355 So.2d 777 (Fla. 1978).

(b). The trial court, after holding an evidentiary

hearing on the alleged Brady-Agurs violations denied relief.

(c). On March 27, 1980, the Supreme Court of Florida

affirmed Petitioner's conviction and sentence, Antone v. State,

382, So.2d 1205 (Fla. 1980).

(d). A Petition for Writ of Certiorari filed in

the United States Supreme Court to review the decision of the

Supreme Court of Florida was denied without opinion on October

14, 1980, with two justices dissenting. ;

10. Other than the appeals described in Paragraphs

& and 9, above, Petitioner has filed two additional challenges

to his conviction and sentence. The first was an original

habeas corpus proceeding in the Supreme Court of Florida in

which the Petitioner joined with 122 other death-sentenced

persons in challenging that court's review of extra-record

material in capital appeals. Relief was denied. Brown v.

Wainwright, 392 So.2d 1327 (Fla. 1981), cert. denied

U.S. , 30 Cr.L. 4066 (11/2/81).

ll. On or about January 15, 1982, and January 20,

1°82, Petitioner filed two, separate, Motions for Post-Conviction

Relief in the Circuit Court for the Thirteenth Judicial Circuit,

Hillsborough County, Florida. The issues raised in those motions

are the same as the issues raised herein, except for issues

previously raised in the proceedings described in Paragraph

8, 9, and 10, above. On January 21, 1982, a hearing was held

before the Honorable Arden M. Merkle, Circuit Judge, for the

Thirteenth Judicial Circuit of the State of Florida, who denied

Petitioner's Motion for Post Conviction Relief and Motion to

Vacate Sentence, as well as Motions for Appointment of Experts

and an Application for Stay of Execution. Those Orders are

in the process of being appealed to the Supreme Court of Florida.

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Oral argument is presently scheduled in that Court for

January 25, 1982.

II. NATURE OF THE RELIEF SOUGHT

The defendant seeks an Order vacating the sentences of

death and an Order staying the execution of the judgment and

sentence of the Court pending final disposition of this Motion.

III. STATEMENT OF THE FACTS

12. The Petitioner was tried and convicted of the

First Degree Murder of Richard Cloud. The facts upon which

the conviction was based show that Richard Cloud, a suspended

police officer with the Tampa Police Department, was shot to

death in his home on October 23, 1975. Witnesses at the scene

could not identify the perpetrators but stated that a latin

looking male holding a box was seen running from the Cloud

residence and climbing in a car driven by another latin looking

male (R1161-1167).

13. Thereafter, on February 25, 1976, Ellis Marlow

Haskew was arrested in Miami, Florida by Larry Campbell of

the Florida Department of Criminal Law Enforcement. After

initial denials and after discussions regarding a possible

deal, Haskew confessed to being the driver of the getaway car.

Haskew implicated Buck Gilford as the triggerman. Haskew impli -

cated the Petitioner as the person who gave him information

regarding five contracts for murder from Vic Acosta; as the

person who supplied the murder weapon and as the person who

gave him money for the killing. Haskew, then made a phone

call to the Petitioner, at his residence. Petitioner returned

the call to Haskew at a pay phone. This conversation was tape

recorded by Campbell. Thereafter, Antone was arrested without

an arrest warrant, in his home at approximately 10:00 p.m.

by a joint task force of agents from Tampa Police, the Florida

Department of Criminal Law Enforcement, Hillsborough County

Sheriff's Office, and the Federal Bureau of Investigation. These

agents entered Petitioner's house with guns drawn, Petitioner

was cuffed, and then dressed by police (R1277-1278) (R1585,

1592-1594), (R1707), (R2040-2043). Petitioner apparently

2 eae ire Sai we . 7 Evin z

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suffered what was later determined to be a mild myocardial

infarction. In the subsequent interview that evening at the

F.B.I. office, and Tampa General Hospital, Petitioner made

the statement that he was a 1002 Sicilian, and Sicilians didn't

fink on anybody. He also asked if he was going to have to

testify and, in another pre-arranged call to Haskew, asked,

“Marlow why are you doing this to me." (R1585-1607). Om February

26, 1976, a joint task force executed a search warrant at

Petitioner's home and seized numerous items later used as evi-

dence against the Petitioner, including a rattan couch, and

a .32 calibre slug found therein, as well as air-conditioning

filters taken from a separate workshop on Petitioner's property.

(R1283, 1284; 1314-1328).

14. The Court refused a pre-trial motion for disclo-

sure of a witness who claimed he had been recruited by Haskew

to do a contract murder of a police officer and who stated

that the Petitioner's name was never mentioned during these

discussions with Haskew. At trial, the State produced physical

evidence taken from the victim's residence, including .32

calibre slugs and casings, and box and glass fibers taken from

the front door. (R1170-1198). Experts from the F.B.I. linked

up the bullet taken from the victim's leg with the other slugs

found in the victim's house and the one slug found inside the

rattar couch at petitioner's residence. (R1437-1438). Further,

expert testimony attempted to show a comparison between glass

fibers found at the scene of the homicide and glass fibers

Seized in the search of the Petitioner's residence. (R1578).

15. Ellis Marlow Haskew testified at length regarding

his criminal relationship with the Petitioner (R1452-1536).

Haskew indicated it was Petitioner who in September, 1975,

advised him that Vic Acosta had put out five contracts for

murder, including one for the victim. (R1459-1461). Haskew

testified that earlier, in June, 1975, he had other conversations

with the Petitioner and Manuel Gispert, concerning contracts

for murder. He further testified that pursuant to those dis-

cussions of June, 1975, he and Petitioner “placed a bomb under

the car of Manuel Garcia, and" (R1463). Haskew then testified

that some 10 days prior to the victim's murder, the Petitioner

told him that Vic Acosta wanted Cloud killed in order to pre-

vent Cloud from being reinstated and to prevent him from testi-

fying before a srand jury regarding Acosta and his operations.

(R1480-1482).

16. Haskew further testified to constructing a box

to be used in the murder to conceal the weapon and catch the

eiected cartridges fired during the murder. Haskew, when asked

whose idea it was to use the box, stated that, "I'm not certain.

I know the idea Antone came up, he told me that they had sent

Joe Bedami, and some other guy up to Maryland to..." (R1485).

Haskew further testified that on February 25, 1976, after his

arrest and at the insistence of Agents of €he FDCLE and the

F.B.1., he had a phone conversation with the Petitioner, in

which he spoke with the Petitioner about counterfeit money.

(R1507). <A tape recording of this conversation was also intro-

duced into evidence. (R1512).

17, Haskew went on to testify that he received the

murder weapon from the Petitioner; that he had test fired it

in the Petitioner's house by shooting it into the rattan couch.

(R1474). He stated that they used glass fibers from the air

conditioning filters in the Petitioner's workshop to repack "

the silencer which was on the gun. (R1476). He further stated

he used more of this material later to repack the gun after

he and Buck Gilford had test fired the weapon in anticipation

of the murder. (R1483-1484).

18. Haskew stated that after the murder, the Petitioner

supplied him with $7,000-$8,000 in cash for the killing. (R1499).

Haskew was also allowed to testify to a conversation he had

subsequent to the killing with the triggerman, Buck Gilford,

regarding what had occurred during the actual murder. (R1492-

1498).

19. F.B.I. Agent, Joe Arwine, testified to statements

(related above) made by the Petitioner subsequent to his arrest.

Richard Jantos then testified that the Petitioner had, in

October or November 1975, discussed with him the manufacturing

and design of gun silencers and that Antone stated he had made

one for Vic Acosta which he had test fired in his home. The

witness denied ever possessing any silencer. (R1612-1614).

20. The Petitioner presented several witnesses to

discredit Haskew's reputation for truth and veracity {(R1653-

1666). Petitioner also presented George Mims who stated he

had seen Jantos in possession of a silencer. (R1678-1680).

Larry Miller, testifying as a defense witness contradicted

Haskew on whether or not they had test fired the gun together

as Haskew had testified. (R1675). The Court allowed extensive

cross-examination bearing on these witnesses credibility. The

Petitioner testified and denied any involvement in the murder.

21. Subsequent to Antone's conviction, the State

of Florida produced evidence that Marlow Haskew's attorney

had received several thousand dollars in legal fees from law

enforcement.

22. Recently, new evidence has come to light concerning

the existence o: additional witnesses and tangible evidence

bearing upon this case. These matters are being raised in

the trial court by one of the Motion's for Post-Conviction

Relief cited in Paragraph 11, above, and will be more fully

ceveloped delow.

23. Petitioner's retained counsel never moved prior

to trial for a change of venue, in spice of the considerable

pre-trial publicity aseshios this homicide.

24. During the selection of Petitioner's trial jury,

six veniremen were excused either by peremptory challenge or

for cause solely on account of their conscientious or religious

scruples against the death penalty. Mr. Delgado (R983, 1000)

Mrs. DeLaughter (R1028, 1029), Mrs. McCurdy (R1048, 1049),

Mrs. Langsford (R1064, 1065), Mr. Minton (R1079, 1080); Mrs.

Bradley (R1080, 1081).

25. During Voir Dire, Petitioners counsel made no

inquiry regarding the death penalty. (R949-1095) Further, 4

no objection was lodged against the prosecutor's questions

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regarding the death penalty, or the Court's excusing for

cause all those jury members questioned who voiced death

penalty scruples. (R983, 1029, 1049, 1065, 1080, 1081). —

During the penalty phase, the prosecutor Set toes

aggravating factors and no mitigating factors. He further

argued "Those are the only mitigating factors under the statute.

This defendant does not qualify for one mitigating factor,

not one. He qualifies under four of the statutory aggravating

factors." Petitioner's counsel argued that two statutory miti-

gating factors applied, but did mot attempt to present evidence

or argument or any other factors in mitigation. The Court

vsed the standard jury instruction to instruct the jury regarding

the death penalty and the jury returned an advisory verdict

of death. (R1886-1922). Thereafter, the “Petitioner was sentenced

to death by the trial court judges. (R1925, 1926).

IV. GROUNDS FOR HABEAS CORPUS RELIEF

26. JURY SELECTION: WITHERSPOON ISSUES

The exclusion of each and every venireman who expressed

philcsophical or religious scruples against the infliction

of the death penalty violated Petitioner's constitutional rights

tn that:

(a) The exclusions were inconsistent with the

constitutional requirements for capital cases set forth in

Witherspoon v. Illinois, 391 U.S. 510 (1968); Maxwell v. Bishop,

398 U.S. 478 (1969); Mathis v. New Jersey, 403 U.S. 946 (1971);

Davis v. Georgia, 429 U.S. 122 (1976); and Adams v. Texas,

190 S.C. 2521 (1980).

(b) The exclusion violated the Petitioner's Sixth

and Fourteenth Amendment rights under the United States Consti-

tution in that the defendant was denied a representative jury

selected from a cross-section of the community to act as a

fair and impartial arbiter. Witherspoon v. Illinois, supra,

Glassen v. U.S., 315 U.S. 60.

rational basis other than to preclude any person with death

penalty scruples from sitting as a juror, were not in furtherance

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of any legitimate State interest and denied the Petitioner

his rights to due process and equal protection of the law

in that such a jury panel could not, in fact, be a represen-

tative cross-section of the community.

(d) The complete exclusion of those veniremen

who expressed death penalty scruples was contrary to the

Eighth and Fourteenth Amendments to the United States Constitu-

tion as the resulting jury panel could not provide the "link

between contemporary community values and the penal system,”

Woodson v. North Carolina, 428 U.S. 280 (1976), nor could

such a jury express the conscience and opinion of a represen-

tative cross-section of the community, Witherspoon v. Illinois,

supra.

(e) The exclusions of each and every juror with

death penalty scruples by using both peremptory challenges

and challenges for cause substantially circumvented the rule

in Witherspoon, supra. The complete exclusion of that segment

»f the community holding death penalty scruples resulted in

jury which was biased in favor of capital punishment. “Culled

-- of all who would be reluctant to pronounce the extreme penalty

-- such a jury can speak only for a distinct and dwindling

minority” Witherspoon, supra, at 520.

See also: People v. Wheeler, 58 P.2d 748 (Calif.);

commonwealth v. Soares, 387 N.E. 2d 499 (Mass.); People v.

Thompson, 435 N.Y. Supp. 2d 739 (N.Y.)s Brown v. Louisiana,

371 So.2d 351 (La.). Wherein the courts have placed the bur-

jen upon the State to justify the complete and systematic ex-

clusion of jurors with death penalty scruples.

27. ADMISSION OF STATEMENTS ILLEGALLY OBTAINED FROM

PETITIONER -- PAYTON ISSUES

The Petitioner was arrested without an arrest

warrant while inside his home at approximately 10:00 p.m. on

February 25, 1976. The arrest was effected by a joint task

gorce of the Tampa Police Department, Hillsborough County Sheriff's

Office, Federal Bureau of Investigation and Florida Department

ites

4 > es ee

of Criminal Law Enforcement. Several members of the task force

knocked on Petitioner's door and then entered his residence

with their weapons drawn. Petitioner was handcuffed, dressed

by police, given medication for his heart condition and removed

from his residence to the local offices of the F.B.I. State-

ments were subsequently elicited from Petitioner at the F.B.1I.

offices as well as Tampa General Hospital where Petitioner

was taken after he suffered a minor heart attack while under-

going questioning.

Petitioner's statements were admitted into evidence

at trial, over objection. The trial court had previously denied

a pre-trial motion to suppress those Statements.

Although the law was unsettled at that time, it

is now clearly established that such actions by law enforcement

officers are an unconstitutional infringement upon the Petitioner's

Fourth and Fourteenth Amendment rights against unreasonable

searches and seizures. Payton v. New York, 445 U.S. 373 (1980).

Payton, supra., holds that the Fourth Amendment

made applicable to the States by The Fourteenth Amendment ,

Mapp v. Ohio, 367 U.S. 643; Wolf v. Colorado, 338 U.S. 25,

prohibits the police from making a warrantless and non-consensua!

entry into a suspect's home in order to make a routine felony

4rresct.

No c

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