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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983

## Text

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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POP PSPSPS APDS SF SSS SSE SLSSSSSSTSSSSTSTISSS™SSTSNSINSSSSSSSSNSSSSSSSSSSESOSOSSESESESESESES

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

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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

’

Se

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

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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

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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
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

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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

[
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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.

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v.

;

5)
x

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

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{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

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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
Surgery, no evidence relevant to this issue wes
profiered.

—— ee ta

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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

E

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 =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 * |
4s

: ; 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

oo

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-
ed

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,
v.

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
.

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

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,
v.
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- @*

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

i o> eo

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).

=
7

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

ys

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). 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 cause was shown in Petitioner's case as to

why an arrest warrant was not or could not have been timely
secured. Although the Supreme Court's opinion in Payton was
announced after trial of this cause, the law set forth therein
should be given retroactive application. It is law founded
upon an interpretation of the Fourth Amendment and is a holding
of fundamental and constitutional significance.

28. IN REVIEWING PETITIONER'S CONVICTION THE FLORIDA
SUPREME COURT ACTING EX PARTE CONSIDERED MATERIAL OUTSIDE THE

RECORD
While his appeal was pending before it, the Supreme
Court of Florida requested and received, then purged from the

file; reports concerning Petitioner, which were were not a part

—- SO

a

of the trial court record or record on appeal, all without
notice te Petitioner or his counsel of record. Petitioner's
rights to due process of law, to the effective assistance

of counsel on appeal, to confront the witnesses against him,
to reliability and regularity in the imposition of the death
sentence, to refrain from incriminating himself, and to the
assistance of counsel in determining whether to exercise his
right against self-incrimination were thereby denied in viola-
tion of the Fifth, Sixth, Eighth and Fourteenth Amendments

to the Constitution of the United States.

(a) The Supreme Court of Florida, since at least
as early as 1975, engaged in the continuing practice of request-
ing and receiving information concerning capital appellants
which was not presented at trial and was not . part of the
trial record or record on appeal. The information includes,
but is not limited to: presentence investigation reports con-
cerning the capital offense under review or prior convictions
unrelated to the capital offense; psychiatric evaluation or
contact notes; psychological screening reports; recitations
of a capital defendant's refusal to submit to a psychological
examination from which a report could be prepared; post«sentence
investigation reports and state prison classification and admis-
.ion summaries. Except as to some of the presentence investi-
gations pertaining to the offense on appeal the above informa-
_ion was requested and received without notice to capital
appellants or their counsel of reccrd.

(b) The Supreme Court of Florida purged its files
of the secret information and did not accurately docket or
otherwise record the request, the receipt, or the purge of
the information.

(c) In light of this practice, Petitioner and
122 other death row inmates filed an original action in the
Supreme Courc of Florida. The Court denied the requested relief,
Brown v. Wainwright, 392 So.2d 1327 (Fla. 1981), cert. denied

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

-10-

al

ti a

(d) Petitioner's appeal was pending before the
Supreme Court of Florida during the time the practice of the
Court described above was on-going.

(e) On information and belief, the Supreme Court
of Florida received reports concerning Antone while his appeal
was pending, without notice to counsel, pursuant to this
pattern and practice. However, even if there was no receipt
ef specific information in Antone's case, his rights to relia-
bility and regularity in the imposition of sentence, to the
effective assistance of counsel and to proportional appellate
review were violated.

29. FAILURE OF THE STATE TO PROVIDE IDENTITY AND

EXISTENCE OF EXCULPATORY WITNESS

Petitioner's Judgment and Sentences of Death were
obtained in violation of his rights to Due Process of Law under
the Sixth and Fourteenth Amendments to the Constitution of
the United States in that a material exculpatory witness, known
to the State of Florida, was not disclosed to Petitioner's
counsel although timely request was made for such information.

(a) The prosecution's chief witness and source
of evidence at trial was Ellis Marlow Haskew, a co-defendant.
Ac the time of trial, the prosecution knew of the existence
sf a witness who had testimony which was exclupatoiy for the
Petitioner and in particular would have impeached and contra-
dicted the testimony of Haskew. The prosecution did not reveal
the name of this witness to Petitioner's attorneys although
' demand had been made for the names of all witnesses who had
information pertaining to the case whether such information
was inculpatory or exclupatory pursuant to Rule 3.220, Florida
Rules of Criminal Procedure.

(b) In failing to provide the name of this excul-
patory witness, the State violated not only the State procedural
rules but also the due process clause of the United States

Constitution and the dictates of Brady v. Maryland, 372 U.S.

83 (1963) and its progeny.

(c) Petitioner's trial counsel obtained a sworn

statement from Robeftt Bruns, the undisclosed witness, on
January 14, 1982, in which Bruns stated, under oath, among
other things:
l. He had assisted the F.B.I. and Florida
Department of Criminal Law Enforcement in the apprehension
ȣ Benjamin Gilford, a co-defendant in Petitioner's case.
2. He agreed to assist the F.B.I. and others
in obtaining a tape recorded conversation of Benjamin Gilford.
3. For a number of days in February, 1976, he
wore a body bug and had numerous conversations with Gilford
which were tape recorded by the F.B.1.
4. In those conversations, Gilford stated that
he, Gilford, had killed Det. Richard Cloud.
5. Gilford told hint (Bruns) that Petitioner Antone
did not know anything about Cloud's murder until after it occurred.
6. Gilford told him that the mastermind of the
Dlot tc kill Cloud was one Victor Acosta.

7 Gilford stated the Petitioner's only involve-
ment was that he was paid money after Cloud was killed but
received the money reluctantly because when he discovered what
che money was for he became frightened.

8. He (Bruns) saw the recording device actually
used by the F.B.I. to record the conversations with Gilford.
9. He (Bruns) met with the prosecuting attorney
and discussed his conversations with Cilford in preparation
r Gilford's trial.

10. He was never contacted by the prosecution
regarding Petitioner's trial.

ll. During Petitioner's trial, he was residing
in the State of North Carolina.

12.. He (Bruns) was told by the prosecution to
get out of che State of Florida.

The above statements made by co-defendant Gilford
and the tape recordings thereof would have been admissible

in Petitioner's trial as statements made against penal interest

a recognized exception to the hearsay rule had their existence

cs e 7

oeen made known to the Petitioner's counsel.

30. PETITIONER WAS DENIED HIS RIGHT TO A FAIR TRIAL

Numerous rulings by the crial court effectively
precluded Petitioner from receiving a fair trial.

(a) The denial of the Petitioner's Motion to
Suppress unlawfully obtained statements which were the product
of an unlawful, warrantless arrest in Petitioner's home:

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

(b) The denial of Petitioner's Motion to Disclose™

the Identity of a Confidential Informant. Pointer v. Texas,

380 U.S. 400.

(c) The repeated admission into evidence of
testimony relating to other criminal acts of the Petitioner
unrelated to the charge of murder for which Petitioner was
on trial. (R1463-1464) (R1466-1467) (R1480-1481) (R1484-1485)
(R1507) (R1371).

(d) The trial court erred by allowing, over
cbjections by defense counsel, testimony from Marlow Haskew
concerning a conversation he had with Buck Gilford, the trigger-
man in this homicide, subsequent to the murder of Richard Cloud.
Such testimony resulted in an obvious denial of the Petitioner's
Sixth Amendment Rights of confrontation as Gilford was not
a witness in the trial and could not be compelled to testify.

The testimony did not come within any recognized excepticn

|

othe hearsay rule and specifically it was clearly not within
the co-conspirator exception as the statement was not made
during the course of the conspiracy, and clearly it was not
in the furtherance thereof. Its prejudicial effect cannot
be questioned for during the conversation Gilford told Haskew
that the killing of this human being was no different than
“shooting a dog".

(e) The trial court improperly permitted the
prosecutor to cross-examine defense witnesses, Larry Miller,
and George Mims far beyond the scope of the direct examination f

and by means of impeachment not recognized as permissible under
. e

-13-

@* e*
the law. These witnesses were called by the Petitioner, both

to impeach State witness Richard Jantos and to aid in developing

their theory. The trial court allowed this aspect of the

+

Petitioner's case to be emasculated by permitting the prose-
cutor to inquire reqarding specific prior bad acts, thereby
causing the witnesses to assert their Fifth Amendment privilege
against self-incrimination in the presence of the jury. (R1676,

tines 3-10) (R1680, lines 12-17), (R1682, lines 5-21), (R1685,

1686).
(f£) With regards to the sentencing phase of the

the Petitioner was denied a fair trial in several res-

a oe

—
-a2Gay,y
pects. First, the court wrongfully dismissed for cause, at
the request of the prosecution, each and every juror who expressed

a conscientious or religious objection to the death penalty.

~

As indicated above, this systematic removal of those veniremen
with death penalty scruples was substantial and fundamental

enial of defendant's Sixth, Eighth, Fourteenth, Amendment

WC is

Secondly, the Petitioner was denied a fair trial during

the penalty phase by the court permitting the State to argue

death penalty by stating that the only mitigating factors

~~

ot
_
Lic

were those contained in the statute. Clearly, that was not

wt

-he time nor is it today the law. The prejudice to the

Petitioner is substantial in light of the third fact which

is that the court in charging the jury during the penalty phase,

ee ~~

formed them of nothing to the contrary. The jury was left

mee

with the incorrect impression that the determination of the
recommendation of death is nothing more than a counting process

of X numbers of aggravating factors and Y numbers of mitigating

c

factors: Clearly, it is not. State of Florida v. Dixon, 283

So.2¢ 1 (Fla. 1973); Lockett v. Ohio, 989 S.Ct. 2954 (1978).

31. PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT AT BOTH TRIAL

AND APPEAL -- INEFFECTIVE ASSISTANCE OF COUNSEL

The Petitioner was denied reasonably effective
assistance by trial counsel in that:
(a) Trial counsel failed to file a motion with

«Ré-

oo”,
the court requesting a change of venue allowed under Rule
3.240, Florida Rules of Criminal Procedure.

(b) Trial counsel failed to request that the
jury panel be sequestered during voir dire, and that the venire- ,|
men be questioned individually regarding their knowledge of :
the case.

(c) Trial counsel made an insufficient inguiry
during voir dire into the knowledge of each veniremen regarding
the defendant.

(d) Trial counsel made an insufficient inquiry
during voir dire into the knowledge of each veniremen of
pre-trial publicity concerning the Petitioner, and its effect
on each prospective juror.

The murder of Richard Cloud was a highly sensational
ind publicized case. The homicide had several spectacular
ispects which the media exploited to the utmost. The victim
was an undercover narcotics officer on suspension from the
‘orce; the murder had indications of being a mob-type execution.
There was extensive media coverage of the homicide as well

the investigation. A joint task force of city, state and
Vederal law enforcement officers was formed to find the murderers.
Every development in the case was publicized. When the Peti-
tioner was arrested, considerable publicity resulted. The
publicity and media coverage continued up to the day of the
-rial and thereafter during the trial, and still continues
to this csy.

The failure of trial counsel to move for a change
>£ venue was a serious mistake. During voir dire, it became
apparent that approximately half of the jurors had read or
ueard about the case in the media. At that point, it became
incumbent on trial counsel to inquire of the jury the effect
of that pre-trial publicity. The record bears out that the
inquiry which was made was insufficient, limited to such questions
as “how many articles have you read?" There was no searching
or probing of the jurors to find out just exactly what pre-

disposition or bias they might be bringing into the trial.

— ° =

@” @*

Perhaps out of fear that such questions might lead to answers
which could poison the other jurors, the questions were limited.
A reasonable alternative would have been to request sequestra-
tion and individual voir dire examination.

Without either moving the trial to another juris-
diction which net/ been inundated with publicity or seriously
inquiring into the effects of that publicity on the minds of
the veniremen, trial counsel could in no way assure that the
Petitioner's Sixth Amendment Right to a trial by an impartial
jury was being met.

There should be little argument that the jury
panel selected did not give intensive consideration to the

tour days of testimony and fifty plus items of tangible evidence.

Even less consideration was given to the penalty phase. Clerk
minutes as well as the Record on Appeal show that the jury
spent less than two hours on the guilt phase and only 24 minutes

the penalty phase.
(e) It is apparent from the record that trial
sunsel did not understand the significance or importance of

witherspoon v. Illinois, supra, in that:

i) Petitioner's trial counsel did not ask
single question during voir dire regarding the veniremen's
eliefs or opinions as to capital punishment.

ii) Petitioner's trial counsel did not voice
a single objection to questions propounded by the prosecutor
regarding capital punishment.

iii) Petitioner's trial counsel did not voice
single objection to the Court's dismissing for cause, five
of the six veniremen who expressed death penalty scruples,
without full inquiry.

iv) Petitioner's trial counsel made no re-
quest or effort to voir dire these six veniremen to determine
whether or not, inspite of their death penalty scruples, the
veniremen could still abide by the law and provide Petitioner
with a fair trial.

«lé~

@ @*

At a bare minimum counsel in a death penalty case
must during voir dire, explore the prospective jurors opinions
regarding capital punishment. In capital cases, as in no other
criminal case, it is imperative that the veniremen express
their opinions on the death penalty. If trial counsel is going
to insure that his client is tried before a fair and impartial
jury which fairly and truly is representative of the community
inquiry absolutely must be made.

The failure to make inquiry coupled with the
prosecution's systematic and complete exclusion of those venire-
men with death penalty scruples left the Petitioner with a
jury panel which was in favor of capital punishment and without
any death penal vy scruples at all. As a result, a legitimate
class of persons was excluded from this jury panel. The jury

as composed was not a “body truly representative of the community”

Smith v. Texas, 311 U.S. 128 (1940). The failure of trial
counsel, amounted to a substantial denial of Petitioner's Sixth,

Eighth, and Fourteenth Amendment Rights under the United States
Constitution. One only has to look into the record to sec

that this jury panel spent less than 30 minutes to decide the
issue of life or death.

(f) The trial counsel failed to render effective
assistance during the pre-trial motions, and during the trial
by failing to object to the introduction of Petitioner's state-
ment, on the grounds that the statement was the result of an
illegal arrest in violation of Petitioner's Fourth Amendment

rights. Payton v. New York, 445 U.S. 373 (1980). The Payton

court ruled that such an illegal arrest without a warrant was
such a substantial infringement of the Fourth Amendment rights
that the judgments and sentences had to be reversed.

'
(g) The trial counsel did not effectively investi- ;

’

~~

gate the case, in that they failed to discover an essential
witness to the defense.

In che trial counsel's own Motion to Vacate, he
states that he has recently discovered the existence of a witness,

Robert Bruns, and the existence of tangible evidence. Should

@°e Se

the Court ruled at hearing on that motion that such information
Was in fact disclosed to the Petitioner, through discovery
or that such information was readily discoverable through

appropriate discovery means, then Petitioner was denied an

important and essential witness for his defense. Such witness
would have provided both direct evidence and substantial corrob-
ration to the Petitioner's case and further would have provided
an effective means of impeaching the State's chief witness
Marlow Haskew.

(h) Trial counsel's failure to cite to the court
appropriate law limiting areas of impeachment of Petitioner's
witnesses resulted in an emasculation of the defense case pre- ’
sented by witnesses, Larry Miller and George Mims. Althoug!
this portion of the testimony was limited in scope it was at
the center of the defense theory argued to the jury that Richard
Jantos was involved in the homicide rather than the Petitioner.
The failure of the counsel to cite accepted and established
law limiting areas of impeachment completely destroyed the
effectiveness of that portion of Petitioner's case.

(i) The penalty portion of the trial clearly
shows a lack of understanding on the Part of the trial counsel,
of the law on capital punishment. This denial of effective
assistance of counsel during penalty phase infected the reliabilit
of the penalty determination and resulted in the arbitrary
and capricious imposition of a death sentence.

The basic lack of comprehension of the law pertain-
~18 Co capital punishment resulted in:

| 1) A failure by the Petitioner's counsel to present
other mitigating circumstances Outside the Statutorily pre-
scribed factor.

2) A failure by the Petitioner's counsel to counter
the prosecutor's presentation during the penalty phase that
indicated that/Srécess of deciding the recommendation of death
was one of counting aggravating and mitigating factors.

3) A failure of Petitioner’ S$ counsel to clarify

the statement by the Prosecutor at (R1896) “These are the only

J @° he

mitigating factors under €h@™statute. This defendant does

not qualify for one mitigating factor, not one. He qualifies
under four of the statutory aggravating factors". Clearly

under Dixon v. State, 283 So.2d 1 (Fla. 1973) published three

years earlier, that was a misstatement of the law.

4) The failure of trial counsel to argue mitiga-
ting factors outside of the statute lent consideraable credence
to the State's presentation indicating that the penalty phase . . !
was merely a counting process. Clearly trial counsel could |
have argued as a separate mitigating factor the unequal punish-
ment for the same crime that existed between Marlow Haskew
and the Petitioner. Clearly, trial counsel could have presented
evidence and argued diminished capacity based on the brain
surgery Petitioner previously undetwent, as a separate mitigating
factor. Clearly, defense counsel could have presented some
testimony of Petitioner's character which would attempt to
counter the picture painted by the prosecution.

5) The failure of defense counsel to request
special jury instructions on the penalty phase which instructions
would have cleared up the deficiencies in the standard instructions
employed by the Court. For instance, under these instructions,
the jury is told that "it is your duty to follow the law which
will now be given to you by the Court”. (R1914) The jury is
then told the aggravating factors followed by these instructions
on mitigating circumstances: "The mitigating circumstances
which you may consider, if established by the evidence are
these...". Seven mitigating factors are read -- no where is
the jury told that they are not limited to those seven factors
ard trial counsel did nothing to enlighten the jury of that
hacct.

The total lack of understanding and lack of presen-
tation by trial counsel during the penalty phase denied Petitioner
his rights under che Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution. When this portion of the

trial is coupled with the ineffective assistance rendered to

Petitioner during voir dire, such a serious deficiency exists that

oe e-

the Court cannot conclude that the ultimate outcome of the

trial was not affected. With a jury intentionally composed

by the prosecutor to exclude all persons with death penalty
scruples and a woefully inadequate presentation during the
penalty phase, it is no wonder that the recommendation of death
took less than 30 minutes.

(j) Petitioner was represented on mandatory. appeal
by one of his trial attorneys. Petitioner was denied effective
assistance of appellate counsel in that counsel did not include
the following meritorious legal claims:

1) That the jury selection in this cause was

contrary to the limitations and dictates of Witherspoon v.

Illinois, supra, for the reasons set out above.

2) That the arrest of the Petitioner was in violatio:
of his constitutional rights and required that the judgment
and sentence be set aside.

3) That the Petitioner was denied a fair trial
within the meaning of the Sixth Amendment based on the totality
of rulings made during his trial and set out in point four
aolove.

4) That the Petitioner was denied effective assis-
tance of counsel in the trial stage. a

5) That the penalty phase of the trial violated \
Petitioner's constitutional rights in that the trial court
allowed the jury to consider only those mitigating factors
set out in Florida Statute 921.141.

6) That the penalty phase of the trial violated’ ;
Petitioner's constitutional rights in that the trial court
instructed the jury using instructions which do not contain
a complete and accurate statement of the law of capital punishment.

32. THE JUDGMENTS AND SENTENCES OF DEATH ARE CONTRARY

TO THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION

The judgment and sentence of death in this case
is contrary to the Eighth and Fourteenth Amendments in that:

(a) The trial court limited jury consideration of

a ee —— a ——_— a
— - a —————

oe? ee

mitigating factors to those statutory factors contained in
Florida Statute Chapter 921.141(6) in violation of the United

States Constitution.

(b) The imposition of the death penalty consti-
tutes cruel and unusual punishment as applied to this Petitioner
under the facts and circumstances of this case.

(c) The construction and application to this
Petitioner of the aggravating factors, “especially heinous,
atrocious, and cruel" by the Florida Supreme Court is so broad
as to make its application violative of the Eighth and Fourteenth
Amendments.

(d) The prosecutor was guilty of misconduct by
arguing nonstatutory aggravating factors.

The trial court improperly limited jury considera-
tion of mitigating factors to those contained in the Jury Instruc-
tions and Chapter 921.141(£), Florida Statute 1975.

In instructing the jury, the court stated:

“The mitigating circumstances which you may
consider, if established by the evidence, are
these:

A. That the defendant has no significant history
of prior criminal activity;

B, That the crime for which the defendant is

to be sentenced was committed while the defendant
was under the influence of extreme mental or
emotional disturbance;

C. That the victim was a participant in the
defendant's conduct or consented to the act;

D. That the defendant was an accomplice in

the offense for which he is to be sentenced

but the offense was committed by another person
and the defendant's participation was relatively
MLNOY ;

E. That the defendant acted under extreme duress
or under the substantial domination of another
person;

F. The capacity of the defendant to appreciate
the criminality of his conduct or to conform

his conduct to the requirements of law was sub-
stantially impaired;

G. The age of the defendant at the time of

the crime." (R1917, 1918)

The jury was never informed that they could and should consider
any other aspect of the Petitioner's character or any other
circumstance of the offense that was relevant.

In arguing to the jury during penalty phase, the
prosecutor argued that the mitigating factors contained in

the statute were the only factors and that Petitioner did not

eT _ . —— - —— aD hen _— ~_

— _—

qualify for any of them. As stated earlier, the Petitioner's
trial counsel did nothing to correct this interpretation of

the statute. Further, the trial Court's order in support of

the death penalty limited consideration to only statutory aggra-
vating and mitigating factors. Nevertheless, the limitation

by the trial court to consideration of only statutory mitigating
circumstances is contrary to the Eighth and Fourteenth Amendments.
Subsequent to the trial of this cause, the United States Supreme

Court in its decision in Lockett v. Ohio, 438 U.S. 586 (1978)

held that the failure to allow relevant non-statutory mitigatin
5
ircumstances in the sentencing phase of a capital case violates

the Eighth and Fourteenth Amendments. See Songer v. State,

365 So.2d 696 (Fla. 1978). It is clear that there were other

utory mitigating factors which could be argued as separate,

]
\
3
‘
¥
ee
&
ry
‘

distinct, mitigating factors. The disparity in punishment
between Haskew and the Petitioner could have been set out and
argued as a distinct, separate non-statutory mitigating factor;
other positive character traits could have been set out as a4
distinct non-statutory mitigating factor.

It is submitted that the limitation of mitigating
factors in any fashion is fundamental error and cannot be coun-
tenanced by the Eighth and Fourteenth Amendments of the United
States Constitution. It is further submitted that the violation
is so fundamental that the failure by trial counsel to object
does not constitute a waiver.

The imposition of the death penalty constitutes
cruel and unusual punishment as applied to this Petitioner
under the facts and circumstances of this case.

The Supreme Court in Proffitt v. Florida, 428

U.S. 242 (1976) held that the death penalty does not constitute
cruel and unusual punishment per se, and that the Florida Capital
Penalty statute is constitutionally valid on its face. Conceding,
for arguments sake, that the rule in Proffitt is correct, the
Petitioner contends that the imposition and carrying out of

the death penalty constitutes cruel and unusual punishment

under the circumstances of this case. Proffitt does not foreclose

the argument that the death penalty may be unconstitutional
as applied to a given case.

The basis of the argument is that the totality
of the circumstances require a finding that the death penalty
was not appropriate. The incredible disparity existing between
the punishment given Ellis Marlow Haskew and the Petitioner
cannot be accepted under any principle of constitutional law.
An honest unbiased reading of the record shows that in almost
every point relied upon by the court to support the sentence
of death, the same point would be applicable to Hiskew. He
too had a serious felony background and he too was involved
for pecuniary gain. In fact, the record shows that Haskew
received a tota. of $3,000-$8,000 from the Petitioner. Just
as the Petitioner "recruited" Haskéw, Haskew recruited the
criggerman; just as the Petitioner had passed the money along
to Haskew, Haskew passed it along to the triggerman; just as
Antone gave the gun to Haskew, Haskew gave the gun to the
triggerman; just as the Petitioner was aware that the murder
was done to disrupt and hinder the enforcement of the laws
so, too, did Haskew. Haskew was not a pawn of Petitioner's,
and his participation is no less significant in the actual
killing.

The disparity that exists between a sentence of
35 years with eligibility of parole at any time, and a sentence
of death cannot be justified without some far greater disparity
of actual culpability.

The construction of the aggravating factor "
especially, heinous, atrocious, and cruel” by the Florida Supreme
Court is so broad as to make its application violative of the
Eighth and Fourteenth Amendments.

The United States Supreme Court upheld the term
“especially heinous, atrocious, and cruel" contained in §921.141

(5) (h), Florida Statute 1975 in Proffitt v. Florida, 428 U.S.

242 (1976) against a challenge of vagueness and overbreadth,
but only because the then existing decisions of the Florida

Supreme Court cured whatever constitutional defects that may have

o23-

itn
tt ll

existed in the term by construction. id at 254. The Petitioner
submits that the construction placed upon the term by the Florida
Courts in all of the death penalty cases decided in the years
since Proffitt, has rendered the meaning of the term vague

and overbroad.

The Florida Supreme Court rulings in Proffitr

State, 315 So2d 461 (Fla. 1975); Swan v. State, 322 So2d

485 (Fla. 1975); Halliwell v. State, 323 So.2d 557 (Fla. 1975);

Gibson v. State, 351 So.2d 948 (Fla. 1977); Cooper v. State,

336 So.2d 1133 (Fla. 1976); Kampff v. State, 374 So.2d 954

(Fla. 1979), indicate that there is no definite pattern to
the manner in which this factor has been used. Judicial interpre-
tation has not succeeded in solidifying the definition of the
term “especially heinous, atrocious, and cruel". It is submitted
that the phrase has been rendered vague and overbroad by judicial
construction. Since this factor supports the imposition of
the death penalty in this case, the judgment and sentence must
be vacated.

Further, the prosecutor was guilty of misconduct
by arguing non-statutory aggravating factors. The import of
the prosecutor's argument during penalty phase is that this
murder was not an accident, it was not a rage type killing,
but in fact, was a cold, calculated, highly premeditated “murder
for hire’ (R1898). The fact of premeditation, and the fact
thac the murder was cold and calculated are not properly arguabie
as aggravating factors. To set them up as such is to go outside
the statutorily defined aggravating circumstances and is therefore
contrary to the Eighth and Fourteenth Amendments.

33. PETITIONER WAS DENIED A FULL AND FAIR HEARING

OF THE ISSUES RAISED IN HIS MOTION TO VACATE SENTENCE

On January 21, 1982, a hearing was held on Petitioner's
Motion to Vacate Sentence in the trial court. Petitioner's
counsel requested the trial court to enter a stay of execution
and to contimte the hearing on that motion in order that the
issues set forth therein could be properly raised. Both motions

a

were denied.

-24-

At the same hearing, Petitioner's counsel moved
for the appointment of expert witnesses for the purpose of
developing Petitioner's claim of ineffective assistance of
counsel and for the purpose of developing the issue regarding
the jury selection process employed by the prosecutor and
defense counsel and its effect on the penalty phase. The trial
court denied that motion also, reasoning that the court could
pass upon that question of fact without considering expert
opinion.

In denying Petitioner's Motion to Vacate Sentence,
the trial court found that it was not able to pass upon some
of the issues raised therein because the court lacked jurisdiction
cover some issues and that other issues were proper issues to
be raised on direct appeal rather than through collateral attack,
lending credibility to the Petitioner's claim of ineffective
assistance of counsel on appeal, supra.
In a death penalty case, as in no other, the courts

.d afford a death-sentenced individual every opportunity

fi
6
c

to fully raise and develop issues which may result in the ultimate
penalty being set aside. Petitioner raised several meritorious
claims which he was not afforded an adequate opportunity to
develop through witnesses of his choosing who were simply un-
available due to the fact that the hearing on Petitioner's
Motion was so hastily scheduled. Obviously, the trial court
was attempting to accommodate Petitioner by setting the hearings
as soon as possible in order to allow appellate review of its
order in a timely fashion before the Death Warrant either expired
or caused Petitioner's expiration. However, expediency is
no excuse where meritorious issues exist which need to be fairly
considered.

Additionally, the simple remedy of granting a
stay to allow time for a full and fair hearing would not pre-
judice the State since Petitioner would remain imprisoned under
sentence of death during the pendency of the hearing.

V. OTHER REQUIRED INFORMATION

34. All of the foregoing grounds have been previously
~23-

oo oo

raised in the Florida State Courts, either on direct appeal,

in original habeas corpus proceedings in the Supreme Court
of Florida, or in the Motions for Post-Conviction Relief or
Motion to Vacate Sentence.

35. Petitioner currently has no petition, application,
appeal, motion, or any other pleading now pending in any court,
state or federal concerning the judgment herein, except his
appeal from the denial of post-conviction relief now pending
in the Supreme Court of Florida.

36. The names and addresses of the attorneys who
have represented Petitioner in the past, and who represent
the Petitioner currently are as follows:

A. At Arraignment, Trial, Sentencing and Appeal:
1. Angelo M. FerTita
Diecidue, Ferlita, Prieto and Nutter, P.A.
612 Horatio Street

Tampa, Florida 33606
(813) 251-0124

rh

Jim Alphonso, Attorney at Law
2300 Kennedy Boulevard
Tampa, Florida

B. On Petition for Writ of Certiorari to the
United States Supreme Court:

1. Angelo Ferlita
Address same as above

C. On Motion for Post Conviction Relief:

l. Angelo Ferlita and Robert H. Nutter
Address same as above

Thomas B. McCoun, III
Louderback & McCoun

l Plaza Place N.E., Suite 1009
St. Petersburg, Florida 33701
(813) 896-2147

tro

D. On Motion to Vacate Sentence, other Post-

Conviction Relief and in Federal Habeas Corpus Proceedings,
Petitioner is represented by the undersigned counsel.

37. Petitioner was sentenced under the one and only
count of the Indictment against him.

38. Petitioner has no further sentence to serve after
completing the sentence imposed by the Judgment under attack.

VI. PRAYER FOR RELIEF

WHEREFORE, Petitioner, ATHONY ANTONE, prays:

-26-

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:

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1

~ 1. The Court will forthwith issue an Order staying
his execution pending final disposition of this matter and
further order of this Court.

2. That a Writ of Habeas Corpus be directed to Res-
pondents.

3. That the State of Florida be required to appear
and answer the allegations contained in this Petition.

4. That Petitioner be afforded an evidentiary hearing
on the allegations contained in this Petition and that he be
present at that hearing.

5. That, after a full hearing, Petitioner be discharged
from his unconstitutional confineme iiedictes and/or
relieved of his uncoM@ icutional ae. of death.

6. That Petitioner, who is indigent, be granted sufficient

funds to secure expert testimony and other testimony necessary
to prove the facts as alleged in this Petition.
7. That Petitioner be granted the authority to proceed

in forma pauperis, including the right to obtain subpoenaes

in forma pauperis, for witnesses and documents necessary to

prove the facts alleged in this Peticion.

8. That Petitioner be allowed a period of sixty days,
which period shall commence after the completion of any hearing
this court determines to conduct, in which to brief the issues
ot law raised by this Petition.

9. That Petitioner be allowed to amend this Petition
up to and including the commencement of the hearing requested
herein.

10. The Petitioner be allowed other, further and alternative
relief as may seem just, equitable and proper under the circumstances.
I HEREBY CERTIFY that a copy of the foregoing has been
furnished by An , to Charles Corces, Assistant Attorney

General, Park Trammel Building, 8th Floor, 1313 Tampa Street,
Tampa, Florida 33602, this 22 mefiay of January, 1982.

LOUDERBACK & McCOUN
l Plaza Place N.E., Suite 1009 1 Plaza Place N.E., Suite 1009

ae. ee OO ott» - eS Cte. EI oe Binet An 497A?

UNITED STATES

DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ANTHONY ANTONE, )
)

Petitioner, )

)

vs. )
)

CLAYTON STRICKLAND, et al., )
)

Respondents. )

TRANSCRIPT OF

BEFORE: Honorable Georege C.
United States District Court,
of Florida.

Counsel for Petitioner:

MR. TOM MCCOUN

MR. FRANK LAUDERBACK
Louderback & McCoun
Attorneys at Law

The Plaza Office Tower
1 Plaza Place N.E.
Suite 1009

CASE NO.: 82-61-Civ-T-GC

PROCEEDINGS

Carr, Judge,
Middle District

St. Petersburg, Florida 33701

Counsel for Respondents:

MR. CHARLES CORCES, JR.

MR. ROBERT LANDRY

Assistant Attorneys General
1313 Tampa Street

8th Floor

Tampa, Florida 33601

Rosie Sclafani, RPR, CM

January 29, 1982

Sclafani Williams Court Inc.
Regstered Profeswonal Reporters Cerufhed \ drotape Speczaiasts
Poss Office Ben 215 40 East Madison Street Suite 851

Lakeland. Flonda 33802 ‘Tampa. Fonda 33602
Lakeland Phone (814) 6% S000 ‘Tampa Phone: (815) 223-7321

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-_—— —————ees - .---— -_

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANTHONY ANTONE, )
Petitioner,
vs. CASE NO.: 82-61-Civ-T-GC
CLAYTON STRICKLAND, et al.,
Respondents.
TRANSCRIPT OF PROCEEDINGS
The above proceedings were called to
order before the Honorable George C. Carr,
Judge, United States District tenis: in the
Courtroom, second floor, Federal Building,
Tampa, Florida, commencing on January 29, 1982,
at 11:00 a.m.
The Petitioner was represented by
Messrs. Tom McCoun and Frank Lauderback, of
Lauderback & McCouyr, Attorneys at Law, The
Plaza Office Tower, 1 Plaza N.E., Suite 1009,
St. Petersburg, Florida 33701.
The Respondents were represented by
Messrs. Robert Landry and Charles Corces, Jr.,
Assistant Attorneys General, 1313 Tampa Street,
8th Floor, Tampa, Florida 33601.
Thereupon, the following proceedings
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were had and taken:

2 THE COURT: Good morning, gentlemen.
3 For the record, this is the case of Anthony

4 Antone, Petitioner, versus Clayton Strickland,
5 Louie Wainwright and Jim Smith, Respondents.

6

Case Number 82-61-Civ-T-GC.

First, let me say that it may be
obvious that the Court has given this case
expedited attention. It may or may not be
obvious that the Court has also given intense

mental and physical attention to this case.

And I have finally concluded this morning that

~

I'm probably as well prepared to give some sort
of reasonable judgment about this case as I'll
ever be. So I intend to now rule on the case
from the Bench, giving my reasons therefore,
and if I ramble somewhat, please excuse me,
because part of this is from notes, part of it
is not from notes. I will attempt to set forth
the issues as best I can alleged by the
petition and answer them and rule on them as
best I can.

First of all, there was the jury
selection or Witherspoon issue raised by the

petition. The Court has reviewed the

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transcripts of the voir dire of the six

2 veniremen that the petitioner contends were

3 improperly excluded from the jury. The Court
’ is satisfied that the questions asked and the
. answers given fully comport with Witherspoon

, versus Illinois. I'm not going to give cites
: on some of these cases because they are well

: known cases that counsel are familiar with and,
if need be, if this record is transcribed, I
“s might ask my court reporter to give the cites,
" which she can get from me at a later time.

i As a side note to this ed I

a understand that the petitioner wanted an

4 evidentiary hearing to show that there was a
on Systematic exclusion of jurors. It's just

lb

interesting to note and, as I say, this is just
merely a side note, that one of the jurors that
was excluded by peremptory challenge, after
giving some questions concerning his ability to
act in this case as a juror, although not
sufficient to be a matter of cause, that's

Mr. Delgado, that a further review of the
record on voir dire indicated that Mr. Delgado
revealed that he lived three blocks from mr.
Antone for over -- well, he had lived in a

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house which was three blocks from Mr. Antone
for over thirty years; that he periodically saw
Mr. Antone and knew him but he didn't know him
personally; so certainly that alone could have
been sufficient reason for a peremptory
challenge.

Now, the next issue -- anyway, the
Court feels that the first issue fails.

The next issue is an allegation that
there wes an admission of statements illegally,
and maybe other evidence, illegally obtained
from the Petitioner because of a vielation of
the Payton issue. The Payton issue being the
arrest of a defendant in his home without a
warrant, simply put. The Court thinks that
this issue also fails for two reasons: first,
that it is foreclosed from collaterally
reviewing this Payton issue because the State
has provided a statutory mechanism for the
consideration of such a claim, this claim being
@ Fourth Amendment claim, and I think Stone Vv.
Powell is supportive of that. In addition, the
Court has not found any binding authority that
the Payton ruling is retroactive, and the Court
is of the opinion that it should be analyzed

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much as the Miranda decision has been analyzed
in other cases, and it should not be applied
retroactive. So that fails.

The third issue is that in reviewing
the Petitioner's conviction, the Florida
Supreme Court acted ex parte considering
material outside the record. This Court has
previously addressed and rejected this issue in
the case of Witt V. Wainwright, which is a case
out of the Middle District of Florida, and it's
not @ published case but the Case Number --
it's in the Tampa Division -- is 80-545-Civ-T-GC.
And the fact as was indicated by Mr. McCoun
yesterday, that there may be evidence that
enecific material pertaining to this petitioner
“as furnished the Florida Supreme Court doesn't
change the rationale of the Court in the witt
decision and, therefore, this issue fails.

The next issue is an allegation that
there was a failure of the State to provide
identity end existence of an exculpatory
witness. This particular issue was considered
in an evidentiary hearing by State Circuit
Judge Merkle on a Rule 3.850 motion. Title 28,
United States Code, Section 2254(D) provides

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that the findings of that Court ags-to the
factual matters therein should be presumed to
be correct unless one or more of the
circumstances set out in paragraphs 1 through 7
of Section 2254(D) are deemed to exist or the
State Court record does not fairly support the
Court's factual determination. I do not
believe paragraphs 1 to 7 apply. And after
reading the transcript, I find that the record
fairly supports Judge Merkle's decision that no
Brady violation occurred with respect to

Mr. Brooms. Cite Sumner V. Mata in support of
that. So that issue fails.

The next issue is that Petitioner
was denied his right to a fair trial. In other
words, there were a great number of errors by
the trial judge. As I understand the
Petitioner's contention, not one of these
errors by itself would necessarily rise to the
level of a due process violation and therefore
deny a right to a/tair trial, but it's the
cumulative total of these alleged many errors
that would give rise to a constitutional
deprivation. So the Court feels compelled to
address each of these alleged errors, and after

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addressing each of them, look at them in the
total to determine if, assuming that there were
some errors, that they, by accumulating then,
they could rise to a constitutional deprivation
which this Court would need to address.

First of all, there was alleged that
there was a denial of a Motion to Suppress
Statements obtained in violation of Payton.
I've already noted esrlier that that
consideration of this is precluded by Stone V.
Powell. In addition to that, I might comment
that the Payton issue or the Payton case was,
of course, only decided after this trial and at
the time of this trial, it was not likely that
any Court would, any State of Florida Court,
would have suppressed these statements on this
ground because the law seemed to be contrary to
the State of Florida.

The second alleged error is the
denial of the Motion to Disclose Confidential
Informant. And I now understand that we're not
talking about Mr. Brooms. To the extent that
the ground asserted is the one raised on direct
appeal, the facts do not appear in dispute.
Based upon these facts, it's hard to identify

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I how the Petitioner's constitutional rights were
2 abridged. As the Florida Supreme Court noted,
3 it does not appear that the Petitioner was even
4 prejudiced by the non-disclosure. That's in

5 the Antone case, 382 So. 2d, 1205 at page 1214.
. Now, the Petitioner asserts that the

information this confidential informant had
would rebut the conclusion that the Petitioner |
was the mastermind of this affair and it would |
be probative at sentencing. The Court notes |
that the trial Judge was fully aware of this

information during the trial. He was privy to
the depositions. He knew exactly what this

information was that the confidential informant

had given, and yet at the sentencing phase of

this trial he made findings of fact in which he
found that the Petitioner was the mastermind of
this affair. So the Court can't find any
prejudice accruing to the Petitioner by way of
the failure to disclose this at the trial.
Now, the next error alleged is the
repeated admission into evidence of testimony
relating to other criminal acts. And in
reviewing an allegedly erroneous evidentiary

ruling, a Federal habias Court is required to

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determine not only that an error occurred, but
also that the error denied fundamental feirness
to the Petitioner. In support of thet is the
case of Hills V. Henderson, 529 Fed. 24 397.
That a Fifth Circuit case. The trial Court's
admission of evidence concerning the
Petitioner's other criminal activities was, in
this Court's opinion, relevant to the issues
before the jury and its admission does not
appear to be error, let alone error of
constitutional magnitude.

The next issue raised or error
alleged is the trial Court erred in allowing in
testimony from Marlow Haskew concerning the
conversation he had with Mr. Gilford. This was
not raised on appeal and there appears to be
some question as to whether it is exhausted.
And it appears to this Court that the
Petitioner has waived his rights since he has
had ample opportunity to present this to the
State Courts on earlier occasion. In any event,
this issue does not rise to the level of
constitutional dimensions.

The next issue is that the trial

Court erred in letting the prosecutor

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cross-examine Mr. Miller and Mr. Mims beyond
permissible boundaries. Wow, the petition does
not develop amy factual basis for a finding

that there was evidently an error or that it
rose to the level of constitutional deprivation.
Federal habias Courts do not review State
evidentiary problems. In support of that is

the case of Mercardo V. Massey, 536 Fed. 2d 107,
again, a Fifth Circuit case. And like what the
Court said about the repeated admission into
evidence of testimony relating to other

criminal acts, there is no indication that the
error, if any, rendered the Petitioner's trial
fundamentally unfair.

Next, there are allegation
concerning problems or errors in the sentencing
phase, First, there was the alleged
Witherspoon issue error. The Court has already
addressed itself to that and does not feel that
there was an error. It's alleged that the
Court allowed the State to say that only
statutory factors applied in the sentencing
phase, either, well, we're talking primarily of
the mitigating statutory.

And thirdly, that the Court

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improperly charged the jury concerning
aggravating and mitigating factors. The Court
is going to address that more fully in that
portion of the decision where it addresses the
violation of the Eighth and Fourteeth Amendment
claims. Suffice it to say that they will be
addressed.

Now, looking at all of these alleged
errors now in the totality of the circumstances,
the Court can determine from that that it may
not have been a perfect trial but it certainly
was a constitutional one, in the Court's
opinion.

Now, the next allegation or issue,
rather, is that the Petitioner was denied
effective assistance of counsel at the trial
and on appeal. There are certain -- I'll
Givide this first up as the effective
assistance at trial and discuss that first and
then effective assistance on appeal as the
second one.

There are a number of things the
Petitioner has set forth concerning the
allegation that he was denied effective
assistance of counsel at trial. I think I need

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to comment on those when I can.

First of all, that counsel was
ineffective because of the failure to request a
change of venue. Now, Judge Merkle found in an
evidentiary hearing that this does not
constitute ineffective assistant because the
decision not to change venue was a joint
strategic decision made by counsel and the
Petitioner. So under Sumner V. Mata and
Section 2254(D), this Court must presume that
Judge Merkle's factual determination was
correct. So based on the facts ‘as —e by
Judge Merkle, it's clear to t*e Court that this
was no ineffective assistance.

Now, let me interject an added
comment at this point considering a number of
the other alleged ineffective acts, I guess, is
one way to put it. The Court notes in
reviewing this record that the Petitioner
failed to carry his burden as to a number of
these matters because, for one thing, his
counsel refused to let the trial counsel,

Mr. Ferlita, testify because of the
lawyer/client privilege. Obviously,

Mr. Ferlita would shed more light on these

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issues than anyone else. And it is clear in
making such ineffective of counsel claim
necessarily waives this privilege. So as to a
mumber of these alleged acts. There really is
an absence of fact. Certainly, the Petitioner
should not be allowed to have an evidentiary
hearing and then fail to present evidence as to
certain allegations and then turn around and
come to this Court and ask for an evidentiary
hearing on that matter when he had previously
been offered that opportunity. So the second
allegation that there was ineffective
assistance, that is, the failure to ask for
jury sequestration and to individually ask
veniremen questions about their knowledge of
the case, was not addressed at that evidentiary
hearing, but the Court has personally reviewed
the voir dire, at least the transcript sof the
voir dire, and finds that it is adeyguate.
Again, in hindsight, there may have been some
other questions, but the Court doesn't think
that it rises to the level of ineffective
assistance and will discuss a little further or
a little later rather its understanding of the
standards that it should apply.

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Next was allegation that counsel
made insufficient inquiry during vior dire
concerning the veniremen's knowledge of the
defendant. Again, there was an absence of
facts in the hearing in the State Court, but
the Court has reviewed that transcript and is
satisfied with the attorneys performance.
Certanly it's not ineffective assistance.

Next, counsel made insufficient
inquiry concerning the effect of pretrial
publicity on the veniremen. The same thing
applies. The Court had to review that portion
of the voir dire and, although it may not have
been the way this Court would have conducted it
or some other attorney may not have conducted
it that way concerning the pretrial publicity,
I think it did not rise to the level of
ineffective assistance.

And the next question was, I think,
or allegation was that counsel didn't ask the
Whitherspoon question. The Court has already
ruled on that. I've reviewed that and felt
that it did or that counsel did. It may have
been asked by the prosecutor, but it was asked,
and there was no reason for the defendant's

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—————

counsel to continue to pursue that.

Now, the next allegation is that
trial counsel failed to raise a Payton issue.
I've discussed this already, but again, the

Petitioner's arrest preceded the Payton

6 || decision by four years. At the time the trial,

‘ the law in Florida was, this Court believes,

° firmly established that arrests similar to

9 | those conducted in the instant case were legal;
= and I cite State V. Perez, 277 So. 2d 778.

_ Significantly, counsel did move to suppress the
as statements on Fifth Amendment grounds, that is
Miranda grounds, and also moved to suppress

” evidence obtained pursuant to a search warrant.
23 Both these motions were denied and their

e denials appealed. So I don't think under those
“4 circumstances it would be indicated there was
¥ ineffective assistance.

19

The next was that the trial counsel
did not effectively investigate in that they
failed to discover essential witnesses to the
defense. In sum, the Petitioner contends that
his attorneys would have discovered Robert
Brooms had they adequately investigated the
case. It is not necessary to determine the

Sclafani Williams Court Reporters, Inc. ‘8 —_ forth therein. This Court has been involved
with litigation long enough to know that the
longer a trial or an appellant brief is, the
more difficult it is to point out a concise and
cogent way the things that you're really
interested in and that you really want the
Appellate Court to bore into and the things
that you think are more Significant. The
failure to raise the Whitherspoon issue in

light of that brief certainly is understandable,
because it would have been one of the weakest
issues, in this Court's opinion.

There was then an allegation chat
there was a failure to raise the Payton issue.
I've already indicated that case had not even
been decided at the time this was appealed and
the state of the law in Florida at that time
appeared to be contrary to the position that
Payton expresses.

Thirday, it's alleged that there was
a failure to raise the evidentiary ruling

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2 indicates that many many alleged errors were
3 | raised, and the Court has commented on the
4 | alleged evidentiary ruling errors earlier and
5 the failure to set those forth in light of the
i}
6

questions that this Court has about them

: certainly would not have risen to the level of

° | ineffective assistance by failing to set them

I
? } forth as an error.
State, 382 So.2d 1205, 1214 (Pla.

1980). It is also significant that the trial judge expressly
found that it was the petitioner, not Haskew, who was the
mastermind of the killing and that the judge had full knowledge of
the confidential informant's story. (See R. at 929-30).

In light of these facts, it is a4ifficult to see how the
trial judge's denial of the Motion to Compel Disclosure of the

Confidential Informant's Identity was constitutional error.

c. The Repeated Admission into Evidence of Testimony
Relating to Other Criminal Acts

The petitioner cites several parts of the record, where he
alleges the trial court erroneously allowed in evidence of.
criminal acts unrelated to the Cloud murder. (R. 1371), (R. 1463-
64), (R. 1466-67), (R. 1480-81), (R. 1484-85), (R. 1507). The
challenged rulings all involve the testimony of Marlow Haskew, the
driver of the getaway car and the State's key witness. During his
testimony Haskew made several statements concerning unrelated
crimes. In particular, Haskew made reference to bombing a car

(R. 1463). This comment was in large part volunteered by the
witness and the judge instructed the jury to disregard it.

(R. 1469-70). The Court also warned counsel to make sure that
they did not solicit evidence of unrelated activities. (R. 1465-
69). Haskew further testified that the Cloud killing had been one
of five killings for which the petitioner had given him a contract.
(R. 1459-61). The trial judge allowed this testimony to come in,
reasoning that it was an integral part of the conspiracy giving
rise to the Cloud killing. Later on in his testimony, Haskew
stated that Antone had asked him to speed up Cloud's murder
because Vic Acosta “and a lot of his people” wanted Cloud killed
in order to prevent Cloud from testifying before the grand jury.
(R. 1480-82). The Court once again overruled defense counsel's
objection to this testimony. (R. 1481). The trial judge also
allowed in testimony concerning who had designed the cardboard box
used to collect spent shells from the murder weapon. (R. 1484-85).
In the course of explaining who had designed the box, Haskew
stated that Antone was familiar with the cardboard box idea
because “they had sent Joe Joe Bedami and some other guy up to
Maryland to ...." (R. 1485). The prosecutor interrupted Haskew
and never allowed him to finish the statement. As with Haskew's
reference to the car bombing, this statement was volunteered by
the witness before the trial court was even asked to rule on its

od

ee

admissibility. Finally, Haskew was allowed to testify concerning
a telephone conversation he had with Antone while Haskew was in
police custody. (R. 1507). However, the tape recording of this
conversation was subsequently introduced and played for the jury
and, in this proceeding, the petitioner has not challenged the
propriety of allowing the jury to hear the actual recording.

(R. 1512; see R. 165-72).

In light of the circumstances surrounding the admission of
the challenged evidence, it does not appear that the judge
committed error, let alone error of constitutional magnitude.
Hills v. Henderson, 529 F.2d 397 (Sth Cir. 1979). Indeed,
considering the nature of the crime charged, it is difficult to

see what realistically could have been done to sanitize Haskew's

testimony.
d. The Trial Court Erred in Allowing in Testimony From
Marlow Haskew Concerning the Conversation He Had With
Buck Gilford
Buck Gilford was the triggerman and Marlow Haskew drove the
getaway car. The trial judge allowed Haskew to relate what
happened immediately following the Cloud killing including what
Buck Gilford said to him about the murder. (R. 1497-98). The
Court allowed the testimony on the grounds that Gilfofd was a
co-conspirator. Once again, this evidentiary ruling dues not
appear to have risen to the level of constitutional error. In
addition, although the defense attorney did contemporaneously

object, it does not seem that this claim was ever raised on direct

appeal or in any collateral proceedings. See Evans Vv: Maggio, 557

F.24 430 (Sth Cir. 1977). See generally, Wainwright v. Sykes, 433

U.S. 72 (1977).

e. The Trial Court Allowed Improper Cross-examination
of Larry Miller and George Mims

The petitioner called Larry Miller and George Mims to

impeach Richard Jantos, 4 state witness, and to develop the theory

2 Sas

of defense. On cross-examination, the prosecutor was allowed to
impeach both witnesses by asking them questions about prior bad
acts. Both Larry Miller and George Mims refused to answer, clain-
ing a Pifth Amendment privilege. (R. 1676, 1680, 1682, 1685).
The petitioner contends that this cross-examination exceeded the
scope of direct and emasculated the presentation of his defense.
The impeachment appears to have been permissible under Florida
law. See Pla. Stat. §90.608 (1978). However, whether or not
allowing the cross-examination was error under Plorida law, the
record does not show how the cross-examination rendered the
petitioner's trial fundamentally unfair. It should be remembered
that "[flederal courts do not sit to review state evidentiary

questions." Mercado v. Massey, 536 F.2d 167, 108 (Sth Cir.

1976).

f. The Trial Court Committed Errors in the Sentencing
Phase

The petitioner contends that the trial court committed
three specific errors in connection with the sentencing phase.
They are (1) dismissal of veniremen who voiced conscientious

objections to the death penalty in violation of Witherspoon v.

Illinois, supra; (2) allowing the state to tell the jurors that
they could only consider statutory mitigating factors; and (3)
improperly instructing the jury as to what factors they could

consider. The Witherspoon issue has already been discussed and

rejected. Section I, supra. The other two claims will be
considered in Section VII, infra.

Por the reasons given above, the Court finds that none of
the separate errors identified by the petitioner amounted to
constitutional error. The Court has also examined the trial
errors in combination and has determined that their cumulative
impact did not destroy the fairness of the proceedings. Although
the petitioner may not have received a perfect trial, he did

receive a constitutional one. See generally Buchalter v. New

«tite

York, 319 U.S. 427 (1942); Bryson v. Alabama, 634 F.2d 862, 864-65

(Sth Cir. 1981).

VI. Petitioner Was Denied Effective Assistance of
Counsel as Guaranteed by the Sixth Amendment at Trial

and On Appeal
The next issue presented,is that petitioner was denied
effective assistance of counsel at the trial and on appeal. For
the purposes of clarity, the Court will first discuss the
assistance received at trial and then discuss effective assistance

on appeal.

TRIAL COUNSEL

At the outset, the Court_notes in reviewing the record that
plaintiff has failed to carry his burden regarding these and other
ineffective assistance claims because plaintiff's counsel refused
to let trial counsel testify at the evidentiary hearing on

7 Obviously,

plaintiff's Motion for Post-Conviction Relief.
trial counsel could have shed more light on these issues than
anyone else. It is well-established that the petitioner's claim

of ineffective assistance of counsel necessarily waives the

attorney-client privilege. Laughter v. United States, 373 P.2d

326 (Sth Cir. 1967). Because the privilege was invoked, there is
an absence of fact to support the plaintiff's claims. Certainly,
the petitioner should not be entitled to an evidentiary hearing on
the ineffective assistance of counsel claims before this Court
when an evidentiary hearing was held in the state court on this

matter but the petitioner refused to present evidence.

7/ Trial counsel Angelo Ferlita was one of two attorneys
representing the petitioner at the evidentiary hearing on the
Motion for Post-Conviction Relief. The Court also heard
argur.ent on separate motions filed by Attorney McCoun
regarding petitioner's ineffective assistance of counsel
claims. When the State called Ferlita to testify, Perlita
asserted the attorney-client privilege. However Mr. Alfonso,
Mr. Ferlita's associate and co-counsel at trial, did testify
briefly at the evidentiary hearing concerning the change of
venue question.

a. Trial Counsel's Failure to Move For a Change of Venue
This contention was considered by State Circuit Judge

Merckle at an evidentiary hearing on petitioner's Motion for

Post-Conviction Relief. Judge Merckle found that the failure to
request a change of venue was a,joint strategic decision made by
counsel and the petitioner. (Exhibit G at 7 and 9). Under Sumner
v. Mata, 449 U.S. 539 (1981) and 28 U.S.C. §2254(d), this Court
must presume that Judge Merckle's fa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1690%3A2. Public record. Not legal advice.