Petition — Waterhouse v. Florida (No. 83-5567)
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895567
IN THE Supreme Court, U.S.
SUPREME COURT OF THE UNITED STATE FILED
October Term, 1982 JUL 26 1983
Alexander L. Stevas, Clerk
ee
a
ROBERT BRIAN WATERHOUSE,
Petitioner,
Vv.
STATE OF FLORIDA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
JAMES C. McKAY*
JOHN H. MORE
1201 Pennsylvania Avenue, N.W.
Post Office Box 7566
Washington, D.C. 20044
(202) 662-6000
Attorneys For Petitioner
Of Counsel:
COVINGTON & BURLING
1201 Pennsylvania Avenue, N.W.
Post Office Box 7566
Washington, D.C. 20044
*Attorney of Record
July, 1983
QUESTIONS PRESENTED
1. Whether petitioner's pre-trial statements to
police officers were obtained in violation of his right to
counsel under the Fifth and Fourteenth Amendments to the
United States Constitution, after petitioner had requested
counsel and particularly after counsel had been appointed?
2. Whether petitioner's pre-trial statements
made after counsel had been appointed to police officers who
knowingly failed to advise petitioner's attorney that they
were interrogating petitioner?
3. Whether petitioner's pre-trial statements to
police officers and tangible evidence taken from petitioner's
automobile were obtained in violation of his rights under
the Fourth and Fourteenth Amendments to the U.S. Constitution,
when they were the result of an illegal arrest or detention
by the police without probable cause?
4. Whether tangible evidence taken from peti-
tioner's automobile pursuant to a search warrant were ob-
tained by police officers a result of an illegal seizure of
the car without probable cause prior to the issuance of the
search warrant, thereby violating petitioner's rights under
the Fourth and Fourteenth Amendments to the U.S. Constitution?
TABLE OF CONTENTS
TABLE OF AUTHORITIES “rseeeveeveeervreeeeveeeveeeeeeeeneee eee eee
OPINIONS BELOW eeseeeeaooeeoeoeaes eceoeeeneeeeee0e20¢080 oe ee ee
JURISDICTION eee eeweevreee eee eeeeeeeeeer eee ereereerr ree ee
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE ...ccccccccccccccosescsese eccece
Ri Introduction oeereinereeneeneneeenee vee ee sneer @eee#eee#es: 7,
2. Motions to SuppresSS .......2e06. cocccccecoes
3- TRE TELA] cccccccsecesecssscvccccssceccccce
4. The SeEnt@NGing TEAEL cccicccccccctecccccccce
REASONS FOR GRANTING THE WRIT ....e0ee0ee000% eoccccce
I. PETITIONER'S PRE-TRIAL STATEMENTS TO THE
POLICE WERE OBTAINED IN VIOLATION OF
PETITIONER'S RIGHT TO COUNSEL UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION ....ccccecccecveces
If. PETITIONER'S PRE-TRIAL STATEMENTS TO
THE POLICE WHO FAILED TO ADVISE PRE-
VIOUSLY APPOINTED COUNSEL OF THE IN-
TERROGATION WERE OBTAINED IN VIOLATION
OF PETITIONER'S RIGHT TO COUNSEL UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION ......--22eee000-
III. PETITIONER'S PRE-TRIAL STATEMENTS TO THE
POLICE EVIDENCE TAKEN FROM HIS CAR WERE
OBTAINED AS THE RESULT OF AN ARREST OR
DETENTION WITHOUT PROBABLE CAUSE IN
VIOLATION OF THE FOURTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION .ccccccccccccccccccccccccccccccce
IV. TANGIBLE OBJECTS TAKEN FROM PETITIONER'S
CAR WERE OBTAINED AS THE RESULT OF AN
ILLEGAL SEIZURE OF THE CAR WITHOUT
PROBABLE CAUSE IN VIOLATION OF THE FOURTH
AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION ....ccccccccccsccscccceces
CONCLUSION
seer eee ereeeevreeeeeeeeeeen eee eeeeeeeeeeeeeere
18
20
21
31
34
38
40
- iii -
Page
APPENDICES
A. Opinion of the Supreme
Court of Florida ee eereeeeeeeeeneeneneneneeeeneee la
B. Judgment, Orders and Sentencing
Determination “ese ee eeeeneeeneneeneeneeeneeneeeeee lb
C. Denial of Rehearing by Supreme
Court of Plorida ee eeneweeneeeneneeneneneeneneeeeesee le
TABLE OF AUTHORITIES
Page
A. Cases
Aguilar v. Texas, 378 U.S. 108 (1964) ............ 37
cree enied 4310.5. 925 (1977) erro econ ee 38, 32
Brookhart v. Janis, 384 U.S. 1 (1965) ...... ecccee 28
Chambers v. Maroney, 399 U.S. 42 (1970) ......eee. 38
Clewis v. Texas, 386 U.S. 707 (1967) ...cccccccces 37
Dunaway v. New York, 42 U.S. 200 (1979) .......... 36
Edwards v. Arizona, 451 U.S. 477 (1981) .......... passim
Escobedo v. Illinois, 378 U.S. 478 (1964) ........ 32
Fare v. Michael C., 442 U.S. 707 (1979) ....ceeee. 21
Fields v. Wyrick, 682 P.2d 154 (8th Cir.
1982) nenereereereeeeeeee ne ereineweeeees #¢£f# © *# © © © ne feeee 25, 29
Florida v. Royer, 51 U.S.L.W. 4293
(U.S. March 23, 1983) (No. 8l-
2146) ef eweeeeeeree * enrineneneeneneene eneenene © eee © @ *-* 36
Glasser v. United States, 315 U.S. 60
(1941) o@e@eeeoeeeed @ © ef ee eewee ere ereeeeeneeeeeeee 28
Johnson v. Zerbst, 304 U.S. 458 (1938) .......22e. 28, 32
Maglio v. Jago, 580 F.2d 202 (6th Cir.
978) ef eweneweee eeeee ne fe feweweeeeneereereneeeneee#eee#eee#ee 22
Massiah v. State, 377 U.S. 201 (1964) ....cccceees 32
McCree v. Housewright, 689 F.2d 797
(8th Cis. 1982) eee ete eweeeneeneneneneeneneneneneeeee ere eee 25. 26, 28
Miranda v. Arizona, 384 U.S. 436
(1966) ee ef eeeeeeneneneneneeneneneneeeneeee ec ermhlUc mC rmhUcr CC PT ee emcee passim
Nash v. Estelle, 597 F.2d 513 (5th
Cir.), cert. denied, 444 U.S.
981 (1979) ee eeeneeneneneeeeneeeeneeeneneeeneeeeeneeeee 24
Oregon v. Bradshaw, 51 U.S.L.W. 4940
(No. 81-1857) (U.S. June 23,
1983) re fe ee eeeneneeneeeneeeneneeneeneeeneeeeeeeeeeeeee 25, 27 « 28
Payne v. State, 424 So.2d 722 (Ala.
Crim, App. 1982) eee eereeeeneneneneneeneeneneeneeeeeeee 26
People v. Thomas, 98 Ill. App. 3d 852,
24 N.E.2a 985 (1982) eee eee eeeereeeeeneeeeeee 26
Sanders v. State, 378 So.2d 880 (Fla.
Se Oise. Ce. 1908) ccocceces eer re TT Tr TT Tree
State v. Brezee, 66 Haw. 162, 657 P.2d
1044 (1983) ne © ff © © e*eneeneeneenseetieineieneee ee ee eee ee eee *
State v. Royer, 389 So.2d 1007
(Pla. ABP. 1980) ccccvcccccccccccccccescccsces
Stumes v. Solem, 671 F.2d 1150
(8th Cir. 1982), cert. granted
51 U.S.L.W. 3938 (july - 1983)
ie, GROREON) - sccacnsees< ee
Terry v. Ohio, 392 U.S. 1 (1968) ......
Thompson v. Wainwright, 601 F.2d
768 (Sth Cir. Der shwecabsas codes
United States v. Brignoni-Ponce, 422
U.S. 873 (1975) wecccee cecccccecee
United States v. Clark, 499 F.2d 802
(Ges Cade AF7E) covvevccesscvcves
United States v. Crisp, 435 F.2d 354
(7th Cir.), cert. denied, 402 U.S.
947 (1970) “ee eeeeeveeneeeeeneeeenenenee
United States v. Gordon, 655 F.2d 478
(20 Case LGCL) cecwceccccccosese
United States v. Henry, 447 U.S. 264
(1980) ne fereeee eenerienvreenteneneeenene ee ©
U.S. v. Place, 51 U.S.L.W. 4844 (U.S.
June 20, 1983) (No. 81-1617) .....
United States Ex Rel. Riley v. Franzen,
653 F.24 1153 (?th Cir. 1981) .....
Waterhouse v. State, 429 So.2d 301
(Fla. 1983) eee eee eee eee eee eee eee eee eee
Robert B. Waterhouse v. Florida,
No. A-1008 (June 17, 1583) *eeeeeee
White v. Finkbeiner, 687 F.2d 886
(7th Cir. 19582), Petition for
cert. filed, 51 U.S.L.W. 3001
(U.S. June 18, 1982) (No. 8l-
2340) *seeeeeeeeeeeeeeeneeneeeeeeeeeeeeeneeeeeeee
White v. Finkbeiner, 6ll F.2d 186
(7th Cir. 1979), vacated and
remanded on other grounds, 451
U.S. 1013 (1981) *enereevneeeeeeeeeeeeeeeeeeeeeee
33
26
22,
29
36
24
27
22
- vi-
Witt v. State, 342 So.2d 497 (Fla.),
cert. denied, 434 U.S. 935
THEVT) sccced.
7) “eee ee eee eee ere ee eee ee eee “ee eee ewee
rick v.
(8th Cir. 1982)
Fields, 682 F.2d 154
*“enreoeneeteeeeenreneeeeeeeeeeneeeee er
B. Constitutional and Statutory Authorities
Fourth Amendment, U.S. Constitution ....cccccccces
Fifth Amendment,
U.S. Constitution eevee eee eevreeeee
Fourteenth Amendment, U.S. Constitution .........6.
28 U.S.C.
§ 1257(3)
32, 33
29
passim
passim
passim
2
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
ROBERT BRIAN WATERHOUSE,
Petitioner,
Ve
STATE OF FLORIDA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
Petitioner Robert Brian Waterhouse prays that a
writ of certiorari issue to review the decision of the
Supreme Court of the State of Florida in this case.
OPINIONS BELOW
The opinion of the Supreme Court of Florida af-
firming petitioner's conviction of first deqree murder and
sentence of death, which is reported in Waterhouse v. State,
429 So.2d 301 (Fla. 1983), appears at Appendix A, pp. la-lla.
The trial court's orders denying petitioner's motions to
suppress evidence, its judgment, and its sentencing deter-
mination and finding of facts on sentencing are unreported
and appear at Appendix B, pp. lb-6b.
JURISBICTION
The Supreme Court of Florida issued its opinion
and judgment in this case on February 17, 1983. (App. A,
p. la.) On April 27, 1983, the Supreme Court of Florida by
written order denied petitioner's timely motion for rehearing
and affirmed the conviction and penalty, which appear at
Appendix C. Petitioner filed a timely application on June
16, 1983, for an extension of time in which to file a pe-
tition for writ of certiorari, and Justice Powell on June
17, 1983, ordered that the time for filing this petition be
extended to and including July 26, 1983. Robert B. Water-
house v. Florida, No. A-1008 (June 17, 1983).
The jurisdiction of the Court rests upon 28 U.S.C.
§ 1257(3), the petitioner having asserted below, and is
asserting here, a deprivation of rights secured by the
Constitution of the United States.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the Fourth Amendment to the
Constitution of the United States, which provides in perti-
nent part:
"The right of the peopie to be secure in
their persons, houses, papers, and effects,
against unreasonable searches, and seizures,
shall not be violated..."
the Fifth Amendment to the Constitution of the United States,
which provides in pertinent part:
"(Nlor shall be compelled in any criminal
case to be a witness against himself, nor
be deprived of life, liberty or property,
without due process of law...
and the Fourteenth Amendment to the Constitution of the
United States, which provides in pertinent part:
"{N]or shall any State deprive any
person of life, liberty or property
without due process of law...
STATEMENT OF THE CASE
1. Introduction.
On January 3, 1980, the nude body of a woman was
discovered on the shore of Tampa Bay in St. Petersburg,
Florida. On January 31, 1980, the Pinellas County Grand
Jury met and returned an indictment charging petitioner with
the premeditated murder of one Deborah Kammerer by drowning
after having beaten and choked her. (R.16, 17.)
Prior to trial counsel for the petitioner made a
variety of challenges to the constitutionality and consti-
tutional applicability of the Florida capital punishment
laws but each of these arguments was rejected by the trial
court judge. Counsel for petitioner also moved to suppress
certain items of tangible evidence recovered from petitioner's
automobile on or after January 7, 1980, as well as a series
of statements made by petitioner to officers of the St.
Petersburg Police Department on January 7, 9, and 10. After
a separate evidentiary hearing and rehearing, the trial
judge on August 25, 1980, entered an order denying all of
the motions. (R.371.) The statements and tangible items
were presented at trial over counsel's objections. The
Florida Supreme Court affirmed the denials on appeal. (App. A.)
On September 2, 1980, a jury of the Pinellas
County Circuit Court, found petitioner, Robert Brian Waterhouse,
i/ Numbers preceded by "R." refer to pages in the record on
appeal to the Supreme Court of Florida.
guilty as charged. (R.389.) After a separate penalty
trial, the trial judge accepting the same jury's recom-
mendation of death, sentenced petitioner to die in the
electric chair. (App. B, R.2305.) On September 9, 1980,
petitioner moved for a new trial on grounds that included
the trial court's errors in denying petitioner's motions to
suppress, tendered contrary to the Fourth, Fifth, Sixth, and
Fourteenth Amendments. (R.406.) The motion for a new trial
was denied. (R.413-414.) On September 15, 1980, the Court
entered written findings of fact in support of the sentence.
(App. B.) On February 17, 1983, the Supreme Court of Florida
affirmed the conviction and sentence and on April 27, 1983,
denied a motion for rehearing. (App. C.)
2. The Motions to Suppress.
In the trial, the State's case on the guilt of
petitioner and the requested death penalty centered on a
series of self-incriminating statements alleged to have been
made by petitioner to police officers without presence of
counsel both before and after his arrest on January 7, 9,
and 10, and on items of tangible evidence including blood,
hair, and fiber samples obtained from petitioner's car after
it had been seized by the police and later searched pursuant
to a warrant obtained after the seizure. These statements
and items of tangible evidence were the subject of defense
counsel's motions to suppress on the grounds (1) that the
statements were (i) either made without the presence of
counsel after counsel had been requested (some made even
after counsel had been appointed), (ii) or were obtained as
the result of an illegal arrest or detention, and (2) that
the tangible evidence was obtained as the result of either
an illegal arrest or detention or a seizure of petitioner's
automobile without probable cause. These issues were raised
in petitioner's brief to the Florida Supreme Court. (App. A,
pp. 4a-5a.)
At the evidentiary hearing held on August 22, 1980
(R.435-581), Sergeant Gail Murry, who was in charge of the
homicide investigation, testified concerning the events
leading to the search of petitioner's automobile and the
interrogations of petitioner by the police. According to
her testimony, on the morning of January 3, 1980, she re-
sponded to a call concerning the discovery of a body near
the shoreline in the Lassing Park area of St. Petersburg.
(R.445.) When she arrived at the scene she found the nude
body of a white female laying face down in the mud, approxi-
mately 20 feet from the high tide mark. (R.445.) The vic-
tim had suffered severe lacerations to the head and scalp
area, numerous bruises around the throat, and a swollen and
blackened right eye. (R.445.) A tamoon had been shoved in
the victim's mouth, and it was later determined that she was
having a menstrual period at the time of death. (R.445.)
Examination of the general area around where the body was
discovered indicated tc Sergeant Murry and other officers at
the scene that the assault had occurred elsewhere and that
the body had been dragged into the water after being trans-
ported there. (R.446.) No tire tracks were found, but the
grassy area of the park did not hold tire marks, as was
deronstrated by police cars which were driven on it. (R.446.)
On January 5, 1980, the St. Petersburg Police
Department received an anonymous phone call from a male with
a New England or New York accent who said "In reference to
~~
the bay murder, I have a license number for you - GMU603.
All the information is right there.” The caller then hung
up. (R.448.) This conversation was taped. The license tag
number was determined to belong to a 1973 Plymouth regis-
tered in the name of petitioner, Robert Brian Waterhouse,
residing at 1675 Pinellas Point Drive South. (R.448.)
A check of police records disclosed that peti-
tioner was on lifetime parole for the murder of a 77-year
Old white female in New York State. (R.449.) Sergeant
Murry testified that upon further investigation she learned
that the victim had been beaten and choked to death and left
nude. (R.449.) As a result of this information, the St.
Petersburg Police Department initiated a surveillance of the
residence and person of petitioner. (R.450.)
On January 7, 1980, the police learned the iden-
tity of the victim from her neighbors’ missing person's
report. (R.450.) The victim was one Deborah Kammerer. She
was last seen by her friends, Yohan Wenz and Carol Byers, at
the ABC Lounge on Fourth Street of St. Petersburg on the
evening of January 2, 1980. (R.451.) Her friends informed
police that they had accompanied her to the lounge that
night but had left her there shortly before midnight.
(R.451.) Kyoe Ginn, a bartender at the ABC Lounge, identified
a photograph of Deborah Kammerer and indicated that she was a
frequent patron of the lounge. (R.452.) The bartender also
informed the officers that the victim had been in the bar on
the evening of January 2, 1980, and had left with a man
shortly after midnight. (R.452.) She identified petitioner
from a group of photographs and stated that he was the man
who had left the lounge with the victim on the evening of
January 2, 1980. (R.452.) She indicated petitioner also
was a frequent patron of the lounge and well-known to her.
(R.452.)
Sergeant Murry testified concerning her interview
with Mr. and Mrs. Foster, petitioner's aunt and uncle, and
a friend of the family, Mr. Norwood, all of whom resided at
the Pinellas Street address. (R.453.) Sergeant Murry
stated that the three interviewees had New England or New
York accents similar to that she had heard on the tape of
the anonymous phone call. (R.453.)
On the basis of the above information, Sergeant
Murry and other officers decided to try to persuade peti-
tioner to come to the police station voluntarily for ques-
tioning about the case, but not to arrest him. (R.455,
486.) Detectives Leake and Stellges were assigned to sur-
veillance of petitioner on the evening of January 7, 1980.
The detectives followed petitioner's car from the ABC Liquor
Lounge to Club 28. After petitioner had gone into Club 28,
come out, and gotten back into his car, Detective Leake
directed a marked police car to pull petitioner over to the
side of the road. (R.528, 533.)
Petitioner, who was called as a witness on his own
behalf during this evidentiary hearing, testified that the
marked police car that stopped him had its flashing lights
on and that three or four other marked and unmarked police
cars immediately pulled up around him. (R.540.) Detective
Leake's testimony also indicated that there were additional
police cars in the area. (R.533.)
According to Detective Leake, Detective Stellges
identified himself as a police officer, asked petitioner for
his driver's license, which petitioner then produced, and
told petitioner that the detectives were investigating a
homicide and would like him to come to the police station to
talk. (R.529.) According to the detective'’s testimony,
petitioner was told that it was very important that he come
to the station, but that he did not have to come if he did
not want to. (R.529-530.) Petitioner went to the station
driving alone in his own car and following Detective Stellges'
car. (R.530.) Detective Leake followed petitioner in another
police car. (R.530.) On cross examination, Detective Leake
stated that there were two unmarked police cars following
petitioner's car which was preceded by the marked police car
in which Detective Stellges was then driving. (R.534.)
Petitioner testified that the only reason he
followed the officers to the police station and did not
refuse to go there was that the police had his license and
refused to return it. (R.540.) When petitioner asked the
police why he could not have his license back if he was not
"“urder arxgest or - - - didn't do anything wrong,” Detective
Stellges, according to petitioner, said, "Well, you will
have to go to the police station to get it back." (R.540.)
In addition, petitioner testified that he was escorted to
the police station by at least four police cars and that one
of them drove alongside him at least part of the way,
thereby boxing him in. (R.540.) Petitioner also stated
that he felt that the police could have pulled him over for
driving without a license, a crime in the State of Florida,
if he had not accompanied them to the station to retrieve
his license. (R.540.)
At the evidentiary hearing, Detective Stelljes
admitted taking the license, but added that petitioner never
asked for it back. (R.562.) Other than petitioner's testi-
mony, there was no testimony presented as to when or whether
Detective Stelljes or other officers returned the license.
Detective Leake who was with Detective Stelljes at the scene
of the original stop testified that he did not observe
Detective Stelljes or any other officer return the license
then or later. (R.533.)
When petitioner arrived at the police station at
10 p.m. on the night of January 7, 1980, accompanied by his
escort of police cars, he parked his car in a public parking
space outside the station. (R.462, 530.) It was placed
under guard. (R.462.) Upon entering the police station,
petitioner was advised of his rights by Sergeant Murry and
he signed a form waiving his rights. (R.456, 459.) Peti-
tioner was then taken to Sergeant Murry's office on the
second floor. (R.1813.) He reportedly was informed that he
was not under arrest and that he was free to go at any time.
(R.460-461.) Petitioner was then questioned by the two
officers for some 45 minutes to an hour. (R.548, 18556.)
During this interview, petitioner denied committing the
murder and denied that he knew a Debbie or Debbie Kammerer.
(R.1842.) He admitted that he had been at the ABC Lounge on
January 2, 1980, denied that he had left with a girl, and
stated that no one else had used his car for the last two
weeks. (R.1843.) At the end of the interview, petitioner
asked once again whether he was free to leave and upon the
officer's response that he was, he did so. (R.461, 557.)
Petitioner, however, was not permitted to take his car with
him; instead the police towed it into a basement parking lot
- 10 -
under the police station for safeguarding. (R.462, 513,
542.) According to petitioner, he received the driver's
license back only when he was departing. (R.558, 560.)
During the time petitioner was inside the police
station, Detective John W. Long conducted a visual inspec-
tion of petitioner's 1973 Plymouth reportedly from the
outside through an open window with a flashlight. (R.462,
511.) Detective ong testified that he observed sand oi the
floor in front of the driver's seat and what appeared to be
two dark stains directly behind the driver's seat. (R.512.)
Based upon Detective Long's observations and other informa-
tion, the police obtained a warrant to search the vehicle at
5 a.m. on January 8, 1980, and a search was conducted shortly
after. (R.513-5124.)
The search of the automobile disclosed blood
stains analyzed as type A, the same blood type as that of
the victim. (R.466-467.) Based on this information and the
other information described above, at 5 p.m. on January 8,
1980, the police obtained a warrant for the arrest of peti-
tioner. (R.466.)
Petitioner was arrested by Sergeant Murry and
Detective Hitchcox on the next day, January 9, 1980. (R.467.)
During the ride back to the police station, Sergeant Murry
advised petitioner of his rights from a Miranda card, in-
Cluding the right to remain silent and the right to counsel.
(R.469-470.) Sergeant Murry then asked, “Having these
rights in mind, do you wish to talk with us now." Peti-
tioner did not respond. (R.470.) After a few minutes,
Detective Hitchcox showed petitioner a picture of Debbie
Kammerer and asked if he knew her. (R.470, 1845.) Peti-
tioner reportedly said, "Yes, that's Debbie." In response
@ il -
to Sergeant Murry's statement -- "Oh, well, then you do know
her" -- petitioner reportedly indicated that he did. (R.471,
1846.) Sergeant Murry also testified that Detective Hitch-
cox said to petitioner, “We were right, weren't we, about
what happened Wednesday night [the night of the murder],”
referring to the interview at the police station on the
previous OR, (R.471.) Petitioner reportedly replied,
"Might." (R.471.)
At some point, while still in the car, petitioner
said to the officers, "I think I want to talk to an attorney
before I say anything else.” (R.471.) During the booking
that afternoon, the officers told petitioner that they would
come up to the fourth floor later and give him the oppor-
tunity to talk with them and answer any questions he might
have. (R.472.) Sergeant Murry testified that petitioner
was cooperative and that it was her impression he would be
interested, although she could remember no statement to that
effect. (R.472-473.)
According to Sergeant Murry, at 2 or 2:30 p.m. in
the afternoon of January 9, 1980, Detective Hitchcox and she
commenced their interrogation of petitioner in a small
padded interrogation room with no seach (R.473, 1858-
1862.) Sergeant Murry testified that petitioner seemed
"rather sad and down” as frequently happens when people have
2/ At trial, Sergeant Murry, but not Detective Hitchcox,
testified that the latter's question was, "We were correct,
weren't we, in stating you were involved in this case?"
(R.1817.)
3/ At one point in the evidentiary hearing, Sergeant Murry
Indicated that this interview took place at 2 a.m. in the
morning, presumably of Januéry 10, 1980 (R.473), but later
she indicated it was on Wednesday afternoon. (R.475.) The
latter seems to be the correct time, since the interrogation
took place during the same afternoon as the booking. (R.475.)
Petiticner was booked at 1:20 p.m. on the 9th of January.
(R.8.) The error about the time of this interrogation con-
tinued _ through to the decision of the Florida Supreme Court.
4 Gana, ee
- 12 -
been arrested. (R.473.) Petitioner refused to listen to
another reading of his rights from the Miranda form. Peti-
tioner was upset and crying that his life was over and he
was going to the electric chair. (R.473, 1858.) He refused
to sign the blank waiver form, similar to the one that he
had signed previously. (R.474, 475.) He reportedly stated
that he did not want his rights. (R.473.) Sergeant Murry
testified that at another point petitioner stated, "I want
to talk to you but I don't want my rights." (R.474.) In
response to which, Sergeant Murry tried to explain to him
that the rights were his and that by law the officers had to
advise him concerning them. (R.473.) Sergeant Murry tes-
tified that petitioner responded affirmatively to her ques-
tion as to whether he understood what he said would be
repeated in court. (R.475.) However, petitioner reportedly
also made statements that the officers should tell it to the
court as people not as police officers. (R.474.)
The officers then proceeded to question petitioner
for four hours. (R.476, 1850.) During the interrogation,
petitioner would become very upset and would start crying.
Sergeant Murry testified that the officers would then stop
questioning him until he recovered. (R.1850.) The inter-
rogation finally terminated when, after another bout of
crying, petitioner said, “You know, I really am tired. I
think I'd like to talk to my lawyer. Would you all come
back later tomorrow?" (R.477.) Sergeant Murry gave a
second version of petitioner's statement as, "Will you come
back tomorrow? I'm kind of tired and I think I want to talk
to my attorney." (R.477.)
» 13
During the interrogation on the afternoon of
the 9th of January, 1980, petitioner made various statements
to the officers that were later admitted into evidence over
the objection of defense counsel. (R.506, 1847-1849.) He
stated that nothing would bring “her” back, in apparent
reference to the victim. He talked about wanting to live a
normal life and repeated that his life was now over. (R.506,
1847.) He stated that he had a problem in that he really
liked sex, that he had a drinking problem, that when drinking
he tended to have a problem with violence, and that he found
himself doing things over which he had no control. (R.507,
1848.)
On the morning of January 10, 1980, petitioner
first went to an advisory hearing at which he was advised of
the complaint against him and a Public Defender was appointed
tec represent him. Then around noon he was interviewed for
several hours by a representative from the Public Defenders'
Office. (R.478, 490.) Later that afternoon, Sergeant Murry
and Detective Hitchcox conducted the final interrogation of
petitioner, but without advising anyone in the Public De-
fenders’ Office that their client was being interrogated.
(R.499-500.) Sergeant Murry admitted on cross examination
that the interrogating officers were aware that the Public
Defenders’ Office had been appointed as counsel and that
petitioner had been interviewed by a representative of that
office. (R.500.)
During the afternoon interrogation on January 10,
1980, the officers reportedly were told again by petitioner
that he did want his rights read but he would not sign the
written waiver form, that he wanted to talk to the officers:
» 16 «
as people, and that he did not want to confess but “wanted
to tell [the officers] about it." (R.479.) When trying to
explain to petitioner his rights, Sergeant Murry told him
that she did not really know "if what [he] was going to say
[could] be used in court.” (R.479.) As on the previous
afternoon, petitioner is described as having become “very
upset." Petitioner also was extremely “paranoid” and ex-
pressed fears that the officers were going to try to frame
him. (R.481.) He reportedly would break off talking to cry
and then start talking again, just as he did in the inter-
rogation on January 9. (R.481.)
After two or three hours of questioning, the
interrogation terminated with petitioner again telling the
officers that he was tired and confused and that he did
not want to talk anymore but wanted them to come back.
(R.481.) The officers did not return because petitioner's
appointed counsel directly advised the officers that they
could not conduct any further interrogations of his client.
(R.481, 502.)
On cross examination, Sergeant Murry admitted that
petitioner had advised the officers that he did not want to
confess and that he did not want to talk about Wednesday, and
also that petitioner was more paranoid and illogical than at
the previous interrogation. (R.501-503.)
In the interrogation on January 10, 1980, peti-
tioner is alleged to have made additional damaging state-
ments, which were admitted into testimony over counsel's
objections. (R.506, 1850-8.) He also indicated that he
liked sex any way he could get it, anal, oral, or vaginal.
(R.1850.) He said he had no problem with girls and never
- 15 -
wanted to commit rape. (R.1851.) He said that sometimes he
would become sexually aroused and that if he found out that
the girl was “cursed”, this would frustrate him. (R.1851l.)
When the officers asked when this problem had occurred, he
reportedly told them that it had occurred Wednesday night,
which the officers took to be a reference to the night of
the murder. (R.1851.) He is alleged to have stated that he
would sometimes "flip out” and do terrible things. (R.1853.)
He further indicated that he had stopped drinking since
Wednesday night, when he had drunk a lot. (R.1853.) And,
according to Sergeant Murry's testimony, petitioner in dis-
cussing that Wednesday night and his problems, stated, "Well,
nobody wants to go to jail and you do what you have to do to
protect Bobby Waterhouse.” (R.1825=-1826, 1854.)
At the close of the evidentiary hearing, the trial
judge denied defense counsel's motions to suppress, except
for the last statements made in custody during the afternoon
interrogation on January 10 after the Public Defenders’
Office had been appointed petitioner's counsel. (R.579.)
The trial judge found that petitioner's failure to reexecute
the Miranda waiver on that occasion meant there was no
waiver of his right to have his appointed counsel present.
(R.579.) As to the remaining issues, the trial judge found
that petitioner had gone to the police station on the night
of January 7 voluntarily and had been interviewed voluntarily.
(R.580.) The judge also found that all other statements
made by petitioner were made freely and voluntarily and
after he had been fully advised of all rights to which he
was entitled. (R.580.)
@ 16
3. The Trial.
On the morning of January 3, 1980, Glenn Shine
was walking his dog along the waterfront and noticed an
apparently lifeless naked body lying face down on the mud
flats. (R.903, 906.) Another nearby resident made a phone
call to the police. (R.907.)
Officers from the St. Petersburg Police Department
arrived at the scene, determined that the body was dead, and
proceeded to secure the area and examine it for evidence.
(R.913-937.) Woman's clothing belonging to the victim was
discovered scattered over a wide area near the murder scene.
(R.929, 949.) Marks indicating that something had been
dragged were found in the sand near the high tide mark.
(R.953.) Abrasions were found on the body indicating that
it had been dragged feet first. (R.953.)
Testimony by the Deputy Chief Medical Examiner for
Pinelles County indicated that the victim had died as a
result of drowning at some time between 3:45 and 7:45 a.m.
on the morning of January 3, 1980. (R.1035.) The victim
had suffered numerous bruises and lacerations prior to the
time of death by drowning. (R.1036.) There was no indica-
tion of vaginal penetration but there was evidence indicative
of anal penetration. (R.1037.) In addition, injuries found
in the area of the victim's rectum suggested the insertion
of some blunt object other than a male penis. (R.1039.)
In response to a hypothetical of the prosecutor, the examiner
stated that the injury could have been caused by, among other
things, the insertion of an object the size of a Coke bottle.
(R.1039-1040.)
@ 17 -
The victim's blood was type A. (R.1040.) Exami-
nation of the rectum revealed the presence of enzymes that
might have come not only from type A but also type B blood,
even though the expert testifying admitted the source of the
enzymes indicating type B blood could have heen something
other than blood. (R.1042.) There was expert testimony
that the injury to the rectum occurred prior to death and
that frothy water found in the lungs of the victim indicated
that she was alive but unconscious when she was dragged into
the water. (R.1056-1060.)
Kyoe Ginn, the bartender at the ABC Lounge, testi-
fied that both the victim and petitioner were regular cus-
tomers of the lounge. (R.1114, 1116.) On the evening of
January 2, 1980, the bartender saw the two together in the
bar after the victim's friends had left. (R.1119.) Approxi-
mately one half hour later the bartender observed the victim
and petitioner leaving the lounge together. (R.1120.)
Petitioner's supervisor at work, Mr. Van Vuren,
testified that when petitioner came to work on the morning
of January 3, 1980, he asked to have the day off because he
was feeling “rough.” (R.1138, 1140.) Petitioner had red
marks on each side of his face. (R.1140.) When the super-
visor saw petitioner again on January 7, 1980, he observed
makeup on petitioner's face, and there were new front
seatcovers in petitioner's 1973 Plymouth. (R.1143.)
Petitioner's supervisor also testified, over objections of
defense counsel, that petitioner had told him that he liked
anal sex and slapping women when performing that act.
(R.1157, 1158.) Petitioner's girlfriend of three months
testified that petitioner had stated a preference for anal
intercourse and had engaged in it with her on more than one
- 18 -
occasion. (R.1319.) A boyfriend of the victim testified
that the victim intensely disliked anal intercourse.
(R.1271.)
Mrs. Foster, the aunt of petitioner, was unable
to indicate his whereabouts during the early morning of
January 3. (R.1248.) She testified that petitioner had
stayed home from work on Thursday, January 3, because he was
not feeling well. (R.1249.) She did not observe any bruises
on his face. (R.1254.) On the afternoon of January 3, she
saw petitioner washing the outside of his car. (R.1251.)
The testimony about washing the car was corroborated by
Mr. Norwood, the family friend who lived in the same house,
who added that he might have been cleaning the inside also.
(R.1259.)
A crime scene technician identified items of evi-
dence, including blood, hair and fiber samples, taken from
petitioner's car. (R.1322.) The technician was permitted
to testify, over the objections of counsel for petitioner,
that ten baggies of marijuana had been found in the glove
compartment. (R.1365.) Other expert testimony indicated
that the enzymes of the type A blood found in petitioner's
car was similar to that of the victim, not of the peti-
tioner (R.1460-1502), that blood had been cleaned off or
wiped off a leather jacket belonging to the petitioner and
various parts of the interior of his automobile (R.1544),
and that the location of splattered blood stains in the
automobile indicated that the victim had been struck with
great force with a hard object while in the right front
passenger's seat of the vehicle. (R.1579, 1616, 1620.)
In addition, hair samples from petitioner's car were found
- 19 «
in the victim's coat and pants, discovered at the scene of
the crime. (R.1720-1721.)
An inmate who shared a cell with petitioner prior
to petitioner's trial was permitted to testify, over defense
counsel's objections, to a statement. by petitioner that "I
wonder how he would like a Coke bottle up his ass like I
gave her." (R.1794.) The inmate was permitted to describe
the circumstances under which the statement was made over
the objections of defense counsel. Petitioner allegedly was
frustrated in a homosexual attack on a new cellmate when he
made the statement. (R.1794.)
Sergeant Murry and Detective Hitchcox testified as
to petitioner's pretrial statements discussed above at pages
14 and 15. (R.1836-1888.)
A bouncer at the ABC Lounge on the evening of Jan-
uary 2, 1980, testified for the defense that another man had
been sexually harassing the victim on that night, that peti-
tioner had left the bar alone, and that the police had re-
fused to follow up on those leads. (R.1931-1949.)
The trial jury found petitioner guilty of murder
in the first degree on September 2, 1980. (R.389.)
4. The Sentencing Trial.
At the sentencing trial, petitioner's previous con-
viction for second degree murder in New York was introduced,
and an Officer Hawes, retired from the Long Island Police
Department, testified as to the circumstances of that case,
over the objections of defense counsel. Only one witness ap-
peared on behalf of petitioner, his aunt Mrs. Foster. (R.2257.)
A majority of the jury advised and recommended
that the Court impose the death penalty on the defendant.
- 30 -
(R.2307). The trial judge then sentenced petitioner to
death in the electric chair. (R.2305.)
On September 15, 1980, the trial judge filed an
order with findings of fact supporting the death penalty.
(Appendix B.) The trial judge found the following aggra-
vating circumstances: the previous conviction in New York
for murder in the second degree and life-time parole at the
time of the murder; the previous conviction in New York
involving the use or threat of violence; the murder while
engaged in the commission of a rape, a life felony; the
murder committed for the purpose of avoiding or preventing a
lawful arrest by eliminating the victim as a witness to the
rape; and the nature of the murder designed to inflict a
high degree of pain upon the victim. (App. B.) The trial
judge found no mitigating circumstances. (App. B.)
REASONS FOR GRANTING THE WRIT
This case raises basically four important ques-
tions under the Fourth, Fifth, and Fourteenth Amendments of
the United States Constitution. The first is what constituted
a request for counsel and a waiver of that request by the
petitioner when he was in custody that would permit the
police to continue questioning that person. The second is
whether the police should have continued to interrogate pe-
titioner after counsel had been appointed. The third is
whether seizure of petitioner's driver's license and the
presence of a police escort negated the voluntariness of pe-
titioner's going to a police station, thereby requiring the
exclusion of statements made there and tangible evidence
taken from petitioner's car which was seized as a result of
the trip to the station. The fourth is whether there was
e 21 -
probable cause to impound petitioner's car before a search
warrant had been obtained.
In reaching its decision affirming the trial
court's conviction and sentence, the Florida Supreme Court
misconstrues several decisions of this Court upon which it
expressly relies and others which should have been applied.
The importance of these issues -- vindication of constitu-
tionally guaranteed rights that protect individuals from
improper treatment by officers of the law and that go to
the heart of our adversarial legal system -- make them
particularly appropriate for resolution by this Court.
ONE
PETITIONER'S PRE-TRIAL STATEMENTS TO
THE POLICE WERE OBTAINED IN VIOLATION OF
PETITIONER'S RIGHT TO COUNSEL UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION
The decision of the Florida Supreme Court would
permit police officers deliberately to ignore petitioner's
reiterated requests to speak to counsel before being sub-
jected to additional interrogation -- a basic right guaran-
teed by the Fifth and Fourteenth Amendments and repeatedly
upheld by the opinions of this Court. Miranda v. Arizona,
384 U.S. 436 (1966) and Edwards v. Arizona, 451 U.S. 477
4/
(1981). It would permit them to circumvent such requests
by initiating further communications in a custodial setting
4/ The right to counsel during custodial interrogation is
well settled. In Miranda, this Court directed that "[i]f an
individual states that he wants an attorney, the interro-
gation must cease until an attorney is present." At 474.
Later cases by this Court have emphasized the strict character
of the prohibition protecting an individual's right to
counsel. For example, in Fare v. Michael C., 442 U.S. 707,
719 (1979), the Court referred to Miranda's “rigid rule that
an accused's request for an attorney is per se an invocation
of his Fifth Amendment rights, requiring t all interroga-
tion cease."
- 22 -
in order to elicit statements that they can construe as
waivers, even though not intended as waivers by petitioner,
with the ultimate purpose of eliciting incriminating state-
ments in violation of the Fifth Amendment.
In affirming the trial court's refusal to suppress
certain potentially incriminating statements made by peti-
tioner after petitioner had indicated a desire to have
counsel present, the Supreme Court of Florida seriously
misconstrued the opinions of this Court in both Miranda and
Edwards.
In Miranda, this Court stated that if during a
custodial interrogation an individual “indicates in any
manner and at any stage of the process that he wishes to
consult with an attorney before speaking there can be no
questioning.” 384 U.S. at 444-45 (emphasis supplied).
Other decisions have defined the scope of “in any manner.”
For example, in Stumes v. Solem, 671 F.2d 1150, 1153 (8th
Cir. 1982), cert. granted, 51 U.S.L.W. 3938 (July 6, 1983)
(No. 81-2149), the Eighth Circuit employed Miranda to ex-
clude information obtained from questioning after defendant
said: "I would rather not talk about it .. . until I talk
to my attorney,” and in White v. Finkbeiner, 611 F.2d 186,
189-90 (7th Cir. 1979), vacated and remanded on other grounds,
451 U.S. 1013 (1981), the Seventh Circuit held that, although
equivocal, the phrase "I'd rather see an attorney,” consti-
tuted a sufficient request for counsel. See also Maglio v.
Jago, 580 F.2d 202, 205 (6th Cir. 1978) ("Maybe I should
have an attorney" considered a request for a lawyer); United
States v. Clark, 499 F.2d 802, 805 (4th Cir. 1974) ("I had
better talk to a lawyer" considered a request for a lawyer).
- 23 -
According to the testimony of the police, peti-
tioner's statements requesting counsel were: (1) “I think
I want to talk to my lawyer before I say anything else” (in
the police car on the way to the station) (R.471); and (2)
"You know, I really am tired. I think I'd like to talk to
my lawyer. Would you all come back later tomorrow?” (at
the end of the January 10 early morning interrogation).
4776)" When compared with the requests for counsel
approved in the cases cited above, petitioner's statements
clearly indicate his desire to have counsel. However, the
Supreme Court of Florida, in spite of the settled inter-
pretation of what constitutes a request for counsel pro-
tected by the Fifth Amendment, found that petitioner's
statements that “he thought” he should talk to an attorney
were at most “equivocal requests to consult with counsel."
(App. A, p. 7a.)
The Florida Supreme Court not only mischaracterized
petitioner's requests for counsel, but it ignored other in-
dications that throughout these interrogations petitioner
desired not to speak about the crime with which he was being
charged nor to confess, even when he was willing to speak
about other matters. For example, after petitioner's rights
were read to him in the police car, petitioner did not
respond to Sergeant Murry's question as to whether he wished
to talk, “having these rights in mind." (R.470.) After
his arrest on January 9, petitioner consistently refused to
sign the waiver cards proffered to him, even though he had
5/ Sergeant Murry's testimony gave two versions of peti-
tioner's request made at the end of the early morning in-
terrogation on July 10. The second version was: “Will you
come back tomorrow? I'm kind of tired and I think I want
to talk to my attorney." (R.477.)
- 24<
previously signed one before his arrest. (R.474-5, 479-80.)
He also stated frequently that he wanted to talk to Sergeant
Murry and Detective Hitchcox as people not police officers.
(R.474, 479.)
Of course, even if petitioner's requests were
"equivocal," they were still valid, since “under Miranda a
request for an attorney need not be clear and unequivocal.”
United States Ex Rel. Riley v. Franzen, 653 F.2d 1153, 1159
(7th Cir. 1981) (citation omitted). An “equivocal” request
has been held to permit the police to communicate further
with petitioner while he was in custody, but only in a very
circumscribed fashion, as was realized by the Florida Supreme
Court in this instance, citing Thompson v. Wainwright, 601
F.2d 768 (Sth Cir. 1979); and Nash v. Estelle, 597 F.2d 513,
517 (5th Cir.), cert. denied, 444 U.S. 981 (1979). (App. A,
p. 7a.) However, any questions or other communications by
officers are strictly limited to ones intended merely to
clarify the equivocal request for counsel, not to elicit
other information. Nash, 597 F.2d at 517.
The Florida Supreme Court went on to distinguish
Edwards erroneously on the grounds that petitioner never ex-
plicitly stated that he did not want to talk to the police
nor was he told by the police that he had to talk to them.
(App. A, p. 7a.) On the basis of this finding the Supreme
Court of Florida held that the police did not act improperly
in visiting petitioner and questioning him further after his
two “equivocal statements" expressing possible interest in
seeing an attorney. (App. A, p. 7a.), This case should not
be distinguished on these grounds, since petitioner did in-
dicate that he did not want to talk to Sergeant Murry and
- 25 -
Detective Hitchcox as officers and being held in an interro-
gation room and being asked questions should not require
that the police also explicitly state that petitioner had to
talk to them.
The Florida Supreme Court also failed to properly
apply the standards set by this Court in Edwards for de-
termining whether petitioner waived his Fifth Amendment
right to counsel. In Edwards, this Court strengthened the
protections afforded by Miranda by requiring the additional
safeguard that a valid waiver cannot be demonstrated where
the suspect has not initiated the conversation, even if he
has been advised again of his rights. 451 U.S. at snsmens.”
Under Edwards, if "the right to counsel [is] invoked, the
accused must both initiate the subsequent communication and
validly waive the right to counsel for the statement to be
admissible." McCree v. Housewright, 689 F.2d 797, 802 n.8
(8th Cir. 1982). Accord Oregon v. Bradshaw, 51 U.S.L.W.
4940, 4941 (No. 81-1857) (U.S. June 23, 1983); Fields v.
rick, F. ’ th Cir.), rev on other grounds,
Wyrick, 682 2d 154, 159 (8th Cir.) 'd on h d
sub nom. Wyrick v. Fields, 103 S. Ct. 394, _ U.S. __— (1982).
Thus, to initiate a conversation that would permit the Florida
6/ This Court held that:
[W]hen an accused has invoked his right to
have counsel present during custodial in-
terrogation, a valid waiver of that right
cannot be established by showing only that
he responded to further police-initiated
custodial interrogation even if he has been
advised of his rights. [A]n accused...
having expressed his desire to deal with the
police only through counsel, is not subject
to further interrogation by the authorities
until counsel has been made available to him,
unless the accused himself initiates further
communication, exchanges, or conversations
with the police.
451 U.S. at 484-85.
- 26 -
Supreme Court to find a valid waiver, petitioner would have
had to show that he wanted to waive his right to counsel.
"Initiation" by a suspect in custody has required that the
suspect actively seek out the conversation. See, e.g.,
McCree, supra, (interrogation initiated by suspect knocking
on cell door and saying to police officer that he wanted to
make a ialiiai.?”
The officers initiated both of the interrogations
On January 9 and 10, by having petitioner taken from his
cell to the interrogation room. Each followed closely upon
a request by petitioner to speak to his lawyer. Petitioner
was in custody. In the interrogation room on the fourth
floor of the jail, he was subjected to further questioning.
In the case of the first interrogation, petitioner's supposed
invitation consisted of an "indication of interest" in, not
an explicit invitation to, the officers telling him about
the next steps in the case. Moreover, Sergeant Murry tes-
tified that it was only her impression that petitioner was
interested in hearing about the next steps; she could not
recall any explicit request. (R.496-/.7.) And, the offi-
cers spoke to petitioner of coming to see him only to talk
not to question. (R.497.) The second interrogation was
preceded by a request that the officers return when peti-
tioner was less tired and after he had seen and talked to a
7/ See also, United States v. Gordon, 655 F.2d 478 (2d Cir.
I981) (suspect expressed a desire to inform on another
person who should have been arrested); State v. Brezee, 66
Haw. 163, 657 P.2d 1044 (1983) (defendant against advice of
counsel invited officer to cell and declared he did not want
an attorney); Payne v. State, 424 So.2d 722 (Ala. Crim. App.
1982) (defendant asked to meet with police); People v.
Thomas, 98 Ill. App. 3d 852, 424 N.E.2d 985 (1982), cert.
denied, U.S. __ (1982) (defendant inquired about an
accomplice's statements about defendant's involvement in the
crime); and State v. Pittman, 210 Neb. 117, 313 N.W.2d 252
(1981) (defendant told police he was being framed by co-
defendants).
» 23 «
lawyer. (R.477.) Thus, under the circumstances, neither
interrogation can be considered “initiated” by petitioner.
And, where the suspect in custody did not initiate the
questioning, there can be no waiver under eeetiie.”
This Court's most recent decision on the Edwards
rule, Oregon v. Bradshaw, resulted in a plurality decision
in which eight of the nine justices arguably hold that
Edwards announced a per se, prophylactic rule. 51 U.S.L.W.
at 4941; see also 51 U.S.L.W. at 4944 n.2 (Marshall, J.,
dissenting). Nevertheless, Justice Powell in his concurring
opinion pointed out the continued confusion in the lower
courts as to whether the Edwards rule was per se rule. 51
U.S.L.W. at 4942. Petitioner's case, which reveals the
dangers inherent in a lower court's failure to use Edwards’
per se rule -- namely court affirmation of police attempts
at circumventing a suspect's Fifth Amendment right to
counsel -- would be a proper vehicle to resolve the confu-
sion of which Justice Powell wrote.
In addition, Oregon v. Bradshaw revealed a second
area in which the further guidance of this Court is needed.
The plurality and the dissent differed on the meaning of
"initiation." The plurality was satisfied with a more
general conversation about the investigation, perhaps more
than what is required by the custodial relationship. 5l
U.S.L.W. at 4941. The dissent wished to require that the
conversation initiated be more strictly about the subject
matter of the investigation. 51 U.S.L.W. at 4944. A re-
solution of this constitutional issue by this Court would
8/ This case is stronger than White v. Finkbeiner, 687 F.2d
886 (7th Cir. 1982), tition for cert. filed, 51 U.S.L.W.
3001 (U.S. June 18, i583) (No. 61-2340), where the court
excluded statements made following police-initiated ques-
tioning two days after defendant had indicated a disinterest
in png | to police and had said: “I'd rather see an
attorney.” Id. at 887.
= 28 <-
serve to vindicate the rights of petitioner -- which rights
have been denied by the Florida Supreme Court decision --
and would send a clear signal to police that they must abide
by the Edwards rule and not initiate communications or set
up designed to elicit self-incriminating statements in the
absence of counsel once counsel has requested.
The second Edwards test requires that petitioner
must knowingly and "validly waive the right to counsel for
[a] statement to be admissible." McCree, 689 F.2d at 802 n.8.
This Court has long held that “courts [wili] indulge in
every reasonable presumption against waiver,” Brewer v.
Williams, 403 U.S. 387, 404, rehearing denied, 431 U.S. 925
9/
(1977) (mem.), and that this presumption can be overcome
Only by proof of “an intentional relinquishment or aban-
donment" of that right. Id., quoting Johnson v. Zerbst, 304
U.S. 458, 464 (1938). This Court very recently held that
where reinterrogation follows a suspect's request for coun-
sel “the burden remains upon the prosecution to show that
subsequent events indicated a waiver of the Fifth Amendment
right to have counsel present during interrogation." Oregon
v. Bradshaw, 51 U.S.L.W. at 4941. Furthermore, pursuant to
Edwards, such an abandonment must be voluntary, knowing, and
intelligent. 451 U.S. at 482.
In the instant case, although the State did not
sustain the burden of demonstrating petitioner's voluntary,
knowing, and intelligent abandonment of his right to counsel,
the Florida Supreme Court still found that petitioner's
statements were voluntary and that he had waived his right
to counsel.
9/ This presumption had previously been stated in Brookhart
v. Janis, 384 U.S. 1, 4 (1965), and Glasser v. United States,
315 U.S. 60, 70 (1941).
@ 29\-
In cases where it has been held that suspects
waived their right to counsel, the waivers have been ex-
plicit. In rick v. Fields, 103 S. Ct. 394, _ U.S. __
(1982), this Court held that defendant voluntarily, know-
ingly, and intelligently waived his right to counsel and
"initiated" further dialogue with the authorities when he
"appeared voluntarily and stated that he did not want coun-
sel present during the interrogation.” 103 S. Ct. at 395.
In the immediate case, petitioner did not %ppear voluntarily,
but was in custody at the time he was subjected to inter-
rogation.
It is well-established that "evidence that an
accused has previously asserted his right to confer with
counsel is a factor which weighs heavily against a finding
that a subsequent uncounseled confession is voluntary.”
United States v. Clark, 499 F.2d at 807. Indeed, “[o]nce
the [right to counsel] has been asserted, .. . an inter-
rogation must not be permitted to seek its retraction, total
or otherwise.” Id. at 807, quoting United States v. Crisp,
435 F.2d 354, 357 (7th Cir.), cert. denied, 402 U.S. 947
(1970).
The present case is much like United States v.
Henry, 447 U.S. 264 (1980), in which this Court held that
the government violated defendant's right to counsel by
intentionally creating a situation likely to induce a de-
fendant to make incriminating statements without the aid of
counsel. Id. at 274.
It is clear from the testimony of Sergeant Murry
that petitioner was in a highly confused and emotional state
when he was interrogated by the officers on January 9 and
10 In rick, defendant had not requested counsel at the
t he Ss statement.
- 30 -
10. (R.473, 474.) The officers pretended to be friendly
and sympathetic and indicated they wanted to talk. The
interrogations each lasted for several hours. The officers
stopped questioning to let petitioner cry, but started back
up whenever he stopped crying. (R.476.) Likewise, on the
afternoon of January 10, the officers sequestered and
further interrogated petitioner, even though they recognized
that he was “confused” and “very upset." (R.479, 480, 481.)
Moreover, this last interrogation was conducted without
contacting anyone in the Public Defender's Office in spite
of the officers' knowledge counsel had been appointed to the
case and awareness of petitioner's previous requests for
counsel and his confused state. (R.499, 500.) As in Henry,
the State violated petitioner's right to counsel by creating
and exploiting situations in which petitioner was likely to
make self-incriminating remarks in the absence of counsel.
Since petitioner neither “initiated” conversation
with the police nor waived his Fifth Amendment right to
counsel, his original statement to the police officers that
he wished to see an attorney before he made any further
statements should have terminated further interrogation.
His continued interrogation subsequent to a second request
to speak with an attorney is a blatant breach of his con-
stitutional right to counsel.
Thus, we believe that consideration of the present
case, in which the decision of the Florida Supreme Court
rests upon an erroneous reading of Edwards and other right
to counsel cases and upon a faulty analysis of the circum-
stances surrounding petitioner's request for counsel, would
give the Court an opportunity to illuminate further for
lower courts the scope of the constitutional right to counsel
and under what circumstances that right may be waived.
= 3] -
TWO
PETITIONER'S PRE-TRIAL STATEMENTS TO THE POLICE
WHO FAILED TO ADVISE PREVIOUSLY APPOINTED
COUNSEL OF THE INTERROGATION WERE OBTAINED
IN VIOLATION OF PETITIONER'S RIGHT
TO COUNSEL UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION
In this case, clear evidence was presented at the
hearing on petitioner's Motion to Suppress and during the
trial that Sergeant Murry and Detective Hitchcox proceeded
with the final interrogation of petitioner on the afternoon
of January 10, 1980, without informing petitioner's attorney
just appointed by the Court a couple hours before at the
advisory hearing. (R.499-500.) Sergeant Murry admitted
that she knew that petitioner had counsel. (R.500.) She
also had been present for both of petitioner's requests for
attorney. The record suggests that failure to inform was a
knowing one designed to avoid exactly what subsequently
occurred -- instructions from the court-appointed attorney
for the officers to cease their interrogations.
In the absence of informing counsel, the alleged
waiver of the request for counsel expressed the previous
afternoon should not have been treated as one by the Florida
Supreme Court, as was originally seen by the trial court.
For the trial court originally ruled that the statements
made during this last interrogation session were inadmissible
because after counsel had been appointed petitioner could not
be considered to waive his request for counsel. (R.388,
579, 580.) Later the trial court reversed its ruling over
petitioner's counsel's objections. (R.4ll, 412, 432.) The
Florida Supreme Court in affirming the trial court's denial
of petitioner's motion to suppress argued that there is no
per se rule requiring a notificurion of counsel, and went on
- 32 -
to hold that petitioner had knowingly waived his right to
counsel. (App. A, p. 7a.) Petitioner respectfully argues
that the original ruling of the trial court was correct and
that damaging statements allegedly made by him during the
last interrogation should have been suppressed to protect
his Fifth Amendment right to counsel for the following reasons.
The decision of the Florida Supreme Court is cor-
rect in stating that Massiah v. State, 377 U.S. 201 (1964)
does not stand for a per se rule that would prohibit any vo-
luntary and knowing waiver of a right to counsel once counsel
has been appointed. (App. A, p. 7.) Right to counsel may
be waived. See Johnson v. Zerbst, 304 U.S. 458 (1938) and
Escobedo v. Illinois, 378 U.S. 478 (1964). However, the
waiver must be judged in light of the surrounding facts and
circumstances, of which prior appointment and availability
of counsel is one. See Brewer v. Williams, 430 U.S. 387
(1977) (involving police initiated contact when counsel
available).
In support of its affirmance of the trial court's
denial, the Florida Supreme Court also cited Witt v. State,
342 So. 2d 497 (Pla.), cert. denied, 434 U.S. 935 (1977) for
the proposition that representation by counsel does not pre-
clude waiver. Witt, however, is easily distinguishable from
this case because it involved a suspect who expressly and
directly indicated to the police that he wished to confess
to the crime even though he was represented at the time by
counsel. Here petitioner had several times expressly indi-
cated that he did not want to confess (e.g. R-501) and that
he did not want to talk to the police officers as officers
but as human beings, that is, not in an official context.
Pinally, petitioner's emotional and confused state reflected
« 33 \<
in his crying and in his paranoia concerning the police
(R.480-481) should have made it clear to the officers that
petitioner was not voluntarily and knowingly waiving his
right to counsel.
The Florida Supreme Court decision does not seem
to take into account the clear testimony that the officers
were fully aware that counsel had been appointed and that
petitioner was placed in a situation in which it was highly
likely that he would make incriminating statements because of
his emotional state. Therefore, the Court should reverse
the Florida Supreme Court's affirmation of the trial court's
Genial. Such a reversal would not create a new per se rule
on the facts of this case. For example, it would not over-
rule other Florida cases such as Sanders v. State, 378 So.
2d 880 (Fla. lst Dist. Ct. 1980) relied on by the trial
court. There the officers were merely negligent in not
inguiring further as to the existence of counsel. Witt,
Supra, also would stand. There the waiver was clearly
voluntary and knowing.
Finally, petitioner respectfully submits that the
Florida Supreme Court, in affirming the denial of petitioner's
motions to suppress his statements made on January 10, 1980,
has adopted such a broad and vague standard for determining
when appointed counsel must be informed of an intention by
police officers to conduct an interrogation of his client
that the Fifth Amendment right to counsel will be ignored by
police trying to get in one last interrogation that might
lead to a waiver before counsel has an opportunity to fully
advise his client, thereby cutting back on the additional
protection that this Court has given to right to counsel in
Edwards.
- 34 <-
THREE
PETITIONER'S PRE-TRIAL STATEMENTS TO THE POLICE
AND TANGIBLE EVIDENCE TAKEN FROM HIS AUTOMOBILE
WERE OBTAINED AS THE RESULT OF AN ARREST
OR DETENTION WITHOUT PROBABLE CAUSE IN VIOLATION
OF THE FOURTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION
On January 7, 1980, petitioner was stopped by a
marked pclice car with flashing lights and immediately sur-
rounded by <hree or four other marked and unmarked police
cars, according to testimony presented at the evidentiary
hearing and at trial. (R.533, 540.) Petitioner was in-
formed that the police were investigating a homicide and
it was important to talk to him at the police station.
(R.529-530.)
When asked by Detective Stellje to produce his
driver's license, petitioner did so. (R.540.) Petitioner
testified that he asked for it back, but was told by De-
tective Stellje that he would have to go to the police
station to get it back. (R.540.) Detective Stellje denied
making this statement (R.534), but there is unrebutted
testimony by petitioner that the license was given back to
him only when he left the police station. (R.558, 560.)
His story is also at least partially corroborated by Detec-
tive Leake's testimony that he never saw the license given
back then or later (R.533), and he seems to have been with
petitioner until they all drove off to the police station.
Petitioner also testified that the only reason he
went to the police station was to retrieve his license.
(R.540.) He felt that without it the police could have
picked him up for driving without a license. (R.540.)
Petitioner's version gains partial support at least from the
fact that it was Detective Stellje's police car that he
» 35 «
followed to the police station (R.530), and Detective Stelljes
was the officer who had taken and allegedly not returned the
license. Moreover, two more police cars, at least, followed
petitioner as he tailed Detective Stelljes' police car.
(R.540.) Another may have pulled up alongside for a short
time to completely box petitioner in as he drove along, al-
though Detective Stelljes denied, this. (R.540, 562.) Even
three police cars in front and back of petitioner would have
been enough to indicate to him that he was not to stop fol-
lowing Detective Stelljes to the station.
However, in spite of these generally agreed on
facts, both the trial court and the Florida Supreme Court
held that there had been no arrest and the trip to the
station was voluntary. (App. A, p. 5a.) The Florida Supreme
Court based its conclusion on the testimony of the police
officers, who “said that [petitioner] was not arrested at
this time." However, the words used by police officers to
characterize their actions or their intentions are not
controlling. Dunaway v. New York, 42 U.S. 200 (1979). The
necessary inquiry is whether petitioner's trip to a police
station escorted by police cars to retrieve his license and
the 45-minute interrogation when there would have seemed to
a reasonable person like police “custody.”
This Court has very recently addressed other
seizures, both of persons and of their property, that were
less onerous than that found in the instant case. In U.S.
v. Place, 51 U.S.L.W. 4844 (U.S. June 20, 1983) (No. 81-
1916), this Court held that a 90-minute detention of a
suspected narcotics courier's luggage was too lengthy to be
a permissible stop under Terry v. Ohio. Petitioner was
- 36 -
detained for at least an hour, and his car was never re-
turned. The facts in the other case, Florida v. Royer, 5l
U.S.L.W. 4293 (U.S. March 23, 1983) (No. 80-2146) (consent
to search luggage invalid where involuntary detention ex-
ceeded Terry v. Ohio temporary stop), are particularly appo-
site to the present case. Petitioner and Royer both pro-
duced licenses (and an airline ticket) upon request, but did
not assent orally. Id. at 4294. Both were asked to accom-
pany officers to another location (far away for petitioner)
and their identification was not returned (as far as can be
determined in the case of petitioner) until the police were
finished. Id. Both were taken to small rooms and "con-
fronted by two police officers - a situation which presents
an almost classic definition of imprisonment.” Id. (quoting
State v. Royer, 389 S.2d 1007 (Fla. App. 1980) (en banc)).
Finally, only Royer's luggage was detained, but petitioner's
car was eventually seized. In both instances, a primary
purpose was to obtain possession of a piece of a suspect's
property in order to search it. The seizure occurred before
there was sufficient reasonable cause to obtain a search
warrant. Id.
Of course, under Dunaway v. New York, with suf-
ficient probable cause the detention of petitioner and sei-
zure of his car for a search would have been permissible.
However, it is clear from the facts of the case that, con-
trary to the conclusion of the Florida Supreme Court (App.
A, p. 5), the detectives had at most a reasonable suspicion
centering on petitioner and his car. The anonymous tip
linking petitioner's license plate and the "bay murder," the
statement of a relative that petitioner had a violent
o 37 «
personality and could have done such a deed, the identifi-
cation of petitioner with a man who accompanied the victim
out of the bar on January 2, 1980, and petitioner's prior
record were sufficient to create suspicions but not suffi-
cient for probable cause to detain and question petitioner
and seize his car without warrants.
The most direct piece of information, the anony-
mous tip about the license plate, could not have supplied
probable cause because there was no basis for its reliability.
There was no prior record. Aquilar v. Texas, 378 U.S. 108
(1964). It was not a declaration against interest. United
States v. Harris, 403 U.S. 573 (1971). The identity of the
caller was not known.
Moreover, that the police themselves felt the
lack of probable cause can be seen in the fact that they per-
mitted petitioner to leave the police station on the night
of January 7 without arresting him and they resorted to an
examination of the petitioner's car from outside instead of
obtaining a warrant.
Accordingly, the Florida Supreme Court plainly
erred not only in finding that there was no arrest and the
visit to the police station was voluntary, but also that
there was probable cause for stopping petitioner. (App. A,
p. 5a.) The statements made by petitioner at the police
station on January 7, 1980, were the product of his illegal
detention and arrest in violation of his Fourth Amendment
rights. See Clewis v. Texas, 386 U.S. 707 (1967). The
seizure of petitioner's car was similarly without probable
cause, and the evidence taken from the car was a direct
result of the illegal seizure. Therefore, the Florida
Supreme Court should have reversed the trial court's denials
of petitioner's motions to suppress.
- 38 -
For the above reasons petitioner respectfully
submits that his Fourth Amendmen* rights were violated.
FOUR
TANGIBLE OBJECTS TAKEN FROM PETITIONER'S
CAR WERE OBTAINED AS THE RESULT OF
AN ILLEGAL SEIZURE OF THE CAR WITHOUT
PROBABLE CAUSE IN VIOLATION OF THE
FOURTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION
On the night of January 7, 1983, while petitioner
was being illegally detained and questioned inside the police
station, a detective was conducting a search of petitioner's
automobile which was parked on a public street. (R.511l.)
Of course, the car was there because of the illegal deten-
tion of petitioner as was argued above. But even if peti-
tioner had not been detained illegally, the impoundment of
the car before a search warrant was obtained was a violation
of petitioner's Fourth Amendment rights unless an exception
exists.
The Florida Supreme Court admitted that there was
a seizure without a warrant, but finds that the eventual is-
suance of the warrant showed there was probable cause for
the initial impoundment. (App. hai. 6a.) However, the
Florida Supreme Court has twisted this Court's declaration
in Chambers v. Maroney, 399 U.S. 42, 52 (1970), that seizing
and holding a car before obtaining a warrant is the same as
carrying out an immediate search without a warrant. Both
require probable cause. See also Coolidge v. New Hampshire,
403 U.S. 443 (1971) (plurality opinion) (search warrant re-
quired where no immediate need to search the car). Eventual
obtaining of a warrant does not prove probable cause for the
initial seizure.
@- 39 -
The question then becomes was there probable cause
to impound the vehicle until a search warrant was obtained.
Detective Long's "plain view" search of petitioner's car
was not challenged in the Florida Supreme Court.
The results of Detective Long's "plain view" search
were a little sand on the floor board, which could have come
from anywhere in a seashore city, as Detective Long admitted
at the evidentiary hearing. (R.519.) Of the two “suspicious”
stains, one turned out to be from Coca-Cola. (R.521.) De-
tective Long also stated that he could not tell what the
nature of the stains was “from outside the vehicle." (R.521.)
Detedtive Long also stated on cross-examination that other
than the sand and the stains, he “couldn't ascertain whether
or not it was a crime scene with the naked eye.” (R.521.)
Yet these observations formed part of the affidavit used
to obtain the first search warrant for the car (R.107-111l),
other than the information about petitioner himself which
was shown to be insufficient above. The second search war-
rant was obtained on the basis of the blood sample obtained
as the result of the first illegal search without probable
cause.
Lacking probable cause to arrest petitioner and
lacking probable cause to seize his automobile, the Florida
Supreme Court is left with the argument that somehow an exi-
gent circumstance existing because petitioner could have re-
moved the car and destroyed the evidence. However, the only
evidence that the officers had reasonable grounds to believe
existed were some sand and two stains, none of which were
considered by Detective Long to have indicated that the car
was the scene of a crime.
° 40 -
The decision of the Florida Supreme Court to
uphold as reasonable the seizure by the police of peti-
tioner's car, when he himself was being illegally detained,
reveals a court straining to justify searches because of the
results produced rather than protecting important Fourth
Amendment rights to be secure in property and person.
CONCLUSION
For all the reasons stated above, petitioner
respectfully requests that this Court grant a Writ of Cer-
tiorari to the Supreme Court of Florida.
Respectfully submitted,
S C. McKAY i ili
ounsel of Record
JOHN H. MORE
1201 Pennsylvania Avenue, N.W.
Post Office Box 7566
Washington, D.C. 20044
(202) 662-6000
Attorneys for Petitioner
Appendix A
Supreme Court of Florida
ROBERT 3RIAN WATTAHCCSE, Appellant,
vs.
STATE OF 7UCRIDA. Appellee.
(Pepruary 17, 1983!)
PER CURIAM.
This case is an appeal ‘=om a judgmenc of conviction of
murder ih the first degree. ‘The srial court sentanced apsellant
cs deatn. We nave surisdiscticn. arc. 7, § 3(5) (1), Fla. Const.
Appellant acher= 3rian 4atersocuse was <ried sefore a jury
and found guilty of <he murder of Sescoran <ammerer, vhich
occursed in St. Petersburg sm <he aight of January 2. i980. A
separate sentenciag neariag was seld, after which =<ne :ury
seccmmended <=hat appellant Se sentenced co death. Appellant scw
challenges che legal.c7 of several -sems sf evidence used against
Rim and questions che propriety sf <=he sentence of ¢eatn sn
several grounds. 46 affimm <he comv-cticn and she sentence of
ceats.
Cm she morning cf January 3, 1980, =he St. ?eterspurs
police responded =o =ne call cf a cicizen who sad discovered =he
dead Sody of a woman lying ‘ace down in the mud flats at low ci
om <ne shore of Tampa 3ay. Am examination of che sody revealed
severe Laceraticns on =ne sead and Sriises arcund <he <nrcac.
ixamiszation of <he sedy also revealed—and <nis /ac= .3 recizad
not for .ts sensaticnalism Sut Secause i= Secame <Slevant . <=16
course cf =ne pclice investigaticn--<Aat 4 slocd-scaxed <ampcn
nad seen stuffed i= <ne Victia's moutn. “he 7ictim's vouncs vere
such shat <ney were srocanly sade wicn a card .astoumen= sucn 4s
@ steel <ire schangiag tocol. Zxamisaticn sof <a sody 1lsc
revealed laceraticns cf <=he <sctum. The cause sf <eatn as
determined =o have seen <rownisg, and <nere was evicence =o
wadicate that the sody nad seen <ragged ‘rom 4a srassy irea cn =e
shore into she water at aigh cice. The sody when <iscovered was
completely uncictned. Several .tams cf clothing vere jatcered
from along =<ne shore it =e scene.
The body showed evidence sf <histy lacerations anc
thirty-six cruises. Zemorrhagiag -sdicated <he 7ictis “as alive,
and defense wounds -sdicated she was sonscicus, it =<-e <.28 <ese
lacerations and Sruises were inflicted. Acid phospnoctase was
found in she victia's rectum in sufficient amount <5 strongly
indicate the presence cf semen =<nere. Also, ="e lacerations i2
this area indicated that <=he victia sad seen Sattered sy <he
insertion of a large cbhiect. The sedical examiner was also sacle
co determise <Sat at <he cise of che surder <="e 7.ctis was 1AVi=G
her senstrual per-od.
After several days of investigation <he sclicea vere inacle
=o identity <he victim, so =<ney announced the sicuaticn <5 <8
public. They =nhenm received an anonymous <elepnone call sispiy
waforming =<hem of appellant's automobile <ag sumber and adv.siag
chem =o investigate it.
The police also Learned =ne .denticsy of she riccis i=c2
swo of her seignhbcrs. These “wo acquaintances, Yonan 4enz and
Carcl Syers, sastitied at =<rial chat chey went =o <ne ABC lounge
with the victia on Wednesday sight, January 2, 1980. They
tastified that they later lets che lounge and chat Ms. Kammerer
remained =here at <hbat sine. ‘<yce Sinn, who was workiag “ners 41s
@ bartender <=nat 2:g¢nt. cestizied <hat <he 7iccia came ints =e
Sar wich 4 man and a woman, <==at <=ney later .efc, <aat 4s.
Rammerer <nen segan “=alking wich appeilant who was ccown <s =e
Wimmess) anc <nat at a5out 1:70 4.3. apoellan: and <‘ammerer ial:
<Re sar ssgetner.
Om she evening 22 January ~. 1340, sclice z4ficers asxed
appellant <S voluntarily 70 with ines :s pCl.ce seadquarcers ‘sr
am anterview. At i224 <.se@ Te sais <nat te 4:4 16 <neow any 22.
named [ecbhie anc <nat ce vent <s tne AgaC scunge sn January : sut
aid act Leave SS a wotan. After <nis isterview icpelianc «as
allowed => leave sut sis sar was i2pcunded ‘or S@arcaisg sursuansc
<S wartant. The automobile was searcned sn January 3 and
appellant was arrested cn January 3.
wetactiv7es “Murty and Zicchcox arrested appeliansc. ca rhe
car Om =5@ WEy =O <he police station, after acvising appellansc >
323 Fights, Ficcheox asxed iim, “Se were right <he ctner asgae,
weren'= we, when we <alced <5 you abcut seing involved in this
case?° Appellant responded sicply, “Might.* Shown a piceure sf
seboran Kammerer, appellant “nis <ime acmicced chat se 4:4 is
fact «now her.
Om tha aftarncon cf January 3, the ietecc:ives agacs
.aterviewec appellant. ‘etective furry sestilied concerning <3:8
-Aterview. She said <nat appellant secaze emct.cnally upsec and
Said repeatedly <nat 2:5 life was cover, “at 3@ AS FOisg =S =he
electric chairs. de said <hat ne wanted =o talk <5 us
.aterviewers i$ >ecple anc sot as sclice cfficers. Ze =nen said
“Bat se Sad some perscnal sroblems wich alconcl, sex, and
7.Cclence.
The swo detectives interscgated appellanc again sn Januar’
9. Again appellanc said se wanted => talk =o them as pecple
ratner =nan as police officers. <Secective turty cestified =sat
appellant again icdicated <hat -e experianced a stcblea usvelvis¢
Sexual activity. Ze said that when se <rinxs a Lot, i= is like
something smaps anc se <-an ‘finds sinsels icis¢ <hings =nat <e
<nows ar@)+er=-sle and sad, and chat se samnct <sonersl us
nenavicr sn Such occasicns. appellant alsc <sld <=he sfficers
Sat when ce wanted <2 angage = sexcal activity wich 4a woman cut
-@armedc <34= she 48S Saving ser senstrual ves.sd. se sould secsse
<ja_—
Sraserated and angry and <nat <n:3 .s ~nat rad sappened =e
previcus Necnescay 1:g5nt. Je also said <nhat te tad rad a lot 5
222k 38 seccrescay 2aGRLl.
taspeccisn sf cre ustericr 34 assellanc's sar reveaied =26
presence :2 v.si5ie siced stains, ind a Lumincl case ravealad
iat @ iarge quancticsy sf slsod Sad seen -: <ne sar suc ad seen
Wiped us. Anmaiysis of =<ne Slccd i: <ne sar and sompar:son sith
«mown slicod samples sc¢ appellant and “he 7.cci= revealed <=nat =e
Siced in appellant's car cculd have come ‘from <he victis Sut was
2Gt appellant's Silsoed.
A forensic Slood analyst castified =<hat .= is scssisle
carougn analysis sf Slood stains com certain surtaces =s =axe
estimates concerning <=ne <irection and velcocisy cf soticn sf she
Slood saxing =Ne stains. This wicness concluded ‘rom ser
analysis <hat <he Slosd in appellant's sar was iecosiced in =he
course of a viclent attack.
a forensic haizs analyst cest:fied chat tairs fsu £3
appellant's car were sonsistent is =heir charactaristics sic
«known Rais samples ‘scm =ne 7.¢t.2.
A f{crensic fiber analyst castified =hac fibers ‘fsund is
tne debris adherisg <=> the victin'’s scat were similar = fibers
from =he fabric of <he seat cover is appeliant’s car. Also,
fibers were ‘sund in che car scat Sad <he same sharacter:stics as
fisers ‘=sm <he victim's coat and sants.
Appellant was employed as a slaster and irywall <orxer.
3i3 foreman cestitied at <s:al =<hat cm <ne corning of January },
appellant arsived at work asking ‘or <ne day sff. Je appeared ==>
aave a Sangcver and said te was ‘seling cough. The witness said
That at “his cise appellant cad icratcnes sm 2:3 face. The
Wismess alsc said chat appellant nad =<sld aim chat he Liked anal
amtercourse and lixed seing vic women vhco allcwed checselves <=
CR <2:S appeal, appelianc <ssntends ..) chat che <>:al
Sours erred -2 <enying 2:8 ccticn <s sussress <ne statements +e
BAG@ SUFing 2.5 fi5St watarview, sm January
.
’
|!
“a
‘
1}
o
HH
”
be
’
SSUES @rrec on senying 2:35 cOt-icn <3 suppress <2e <angisle
evicence sStained frcm inSice 1:3 car: 1) «nat «ine trial csurt
erred on <ehying 2:48 2Ot.sn <5 Suppress =ne statements ie nace
afcar 2:3 arsest. cn canuary 3 and 10: 4) tunac tne trial court
ersec ic <cenying 2:3 s2ctices <5 exclude evidence +f sollateral
anlawfal activicy: .$) caat <he <rial court erred in jiving
proper <cuble <sonsiceration <5 4 single aggravaticg ‘actor is
wpesing <se sentence cf <eath: §) that the trial court erred in
consicering <he aggravating siscumstance saat «he capital ‘felony
was commicced 5 <he course sf a felony since <ne ‘alcny vas an
essent.a. element 32 srcct cf falony surder: (7) that tne trial
court erred i= ‘fisdisg he capital ‘felony was especially seinocus,
acrocicus, sr couel; acd (3) <hat che ssial court erred in
fiadisg =2at tne surcer sas committed for =he purpose 27 avoiding
arrest. On several cf che above pciats, appellant argues =wo cr
scre grounds.
?ricr =o <rtial, appellant coved to suppress 2:45 statecent
of January 7. Appellant asserced =hat the initial stop of ais
car was an wllegal arrest anc <hat ne was forced =o accompany =e
officers =o <ne solice station. At the hearing on =he soticn,
sowever, <sa@ state >resented =re <astinony of officers wno said
~Sat appellant was sct arrested at <nis time and <inat 7:
accompanied <nem voluntari:y7. Moreover, we conclude =hat when
appellant was ‘izst stopped and was asked =o 70 in ‘for
qeesticning, <8 investigators rac season <2 selieve =nhat
appellant and iis sar tad some sonmmecticn with the murder.
Therefore appellant's sontantion of error in admictiisg <astisony
of che January 7 statement is without serit.
Appellant argues <nat 2:3 sar was seized without sropacie
cause. After appellant's initial interview was concluded, ce was
allowed <s eave che police station: re was act ander arrest at
at coe. Jowever, re was ict allowed <5 "ake Sis car, which +e
aac >arxec cn <he street across ‘som =he police station. <ater
W4t Aight, & wastanct icr =ne searcn sf =he car vas .ssued and
wee ext cay .= “as Searched. S:nce appellant was <ct alicwed :s
a
Temove 2:3 car izcm where se nad sarxed it, .: 1.8 iadisputasle
Saat che car was seiced Sy <he state without a warrant. <I: ices
net folicw, Sowever, <nat <ne supsequent search sursuant <5 a
WaztTant was .ilegal. There vas srcosacle cause ‘sr <ne search, is
+3 evidenced Sy <-e _ssuance of <ne warrant. ‘There vas 1lsc ine
@xigent Circumstance =nat <ne <ar was cn “ne street and ine
appellant could save removed .= anc destroyed <ne evidence.
Therefore, =ne seizure >¢ appellant's car sendics issuance :/ «ie
wartant Isr 03 se@arcnh was proper, sased om srccasle cause and
@xigent circumstances. Carzoll 7. Tnited States, 267 7.$. 122
.2928).
Appellant contends =<nat iis statements sf January } and 1)
should save been suppressed secause <he solice viclated 2:35 rignt
7S TO@MALN Silent Sy questicnisg 2:5 after ne ad temonstrated a
desire =o comsult an attorney. [In =he pretrial proceedings sa
[me motion “ere was caestimony scncernmiag =e svc .ntarrogation
sessions. On January 3 after sacking certain statements i. <he
car om She way <5 the station appellant said, “I <hink <= want ‘9
scale co am attorney Sefore = say anything alse.“ At this veint
che officers ceased juesticnisg ia. Then, when appellant was
Seing processed into “he :ail om the charge 3/ murder, Setect: ve
Murry asked appellant whether te would Lice ser =5 some <5 his
call, calx to tim, and answer any yuesticns te 2ight save. fe
seemed .nterested, so <etactives Murry and iiccncox vent <5 talx
so Sam at 2:90 a.m. At this point appellant secame amoticnal.y
spset and sade certain statements <escrised srevicusly. ‘The
comversation ended whan appellant said, “= chink i'1 lixe <9 talk
3S ay attorney. “ould you all come sack comorscw?* Then sm tte
following day csnere was further .stersogaticon eliciciag
statements entered ints evicence.
Appellant also argues shat officers riclated <ne {4i/25
amendment Sy questicnisg Sim after se sad invoked Ais right =o
consuls an attorney. Je cicaes Idw 7. Ap+sena, §$1. 9.8. 47°
-~981), whicn neld chat once an accused expresses a iesice =s
seal wich <ne authorities only <hrsugnh ccunsel, inis tesire cust
se@ scrupulcusiy scncred and <=ne accused is cot Sustect <s further
sBterssgat.cA inti. ssunmsel 1as seen sade availiacsle, inless <6
acossed srasell usic.ates Surcmer sommunicaticn. idwarss ices
not apoly sere secause appellant iic ict axsress 1a tesise <5 teal
@225 <2e 70l.se smiy <hrsugs ssunsel. 2is statements <=rat 706
sSougnt r@ anculd <alk “So an attorney were at sost ecuiveca.
requests <S sonsu.= wich scunsel. The sfficers vere ict
promisiced ‘scm waitiatiag Sastser scmmunicat:icn ‘sr <se sursese
of clarifying appellant's request. Thompson 7. dainwrignt. 401
?.2¢ 768 (Sem Sis. 1979); Nasb 7. Sstelie, $97 7.24 $13 (Ses
St.) , SOEs. senred., 444 7.$. 981 13979). Tnlixe in idwards,
appellant sever explicitly stated =<hat se 4:4 16t want <5 “alk <5
the police scr was “ae ever <=s14 <nhat Se was required <:o.
Therefore =ne police did scot act usproperly ia 7.sicing appelians
and questicnisg his furcher after ALs “wo equivocal statensate
@xpressing pcssisle interest in seeing an attorney.
Appellant argues <5at =he court erred is denying 1:3
BOTLON SO Suppress <se statements Se sace <5 <etaectives Murty and
Zicenesox on sme afterncon sf January 1.9. That storming, appellant
Was taken co scurt ‘se ais first sudicial appearance. At <=nis
Cume che public <etencer was appointed <5 represent appellant.
Appellant argues <nat she sfficers sccould save sotified 2
atcorney sefcre proceeding with =ne interview. There is 710 per
se rile, & =, sequisisg sfticars <5 sct:ty =<ne defendant's
counsel sefsre scsomanicatiag wicn <=he accused and we ieclise <5
adopt such & Tile sow. The ‘fact =nat an accused .s represented
Sy counsel dces sct sreclude 2:3 waiver cf =se 2.ght <5 7ave
counsel present wnen <alxing <3 aw enforcemenc sfficers. Wisc
Zi State. 142 So.ic 497 (Pla.), sears. denied. 414 7.3. 325
(1977). Sere che appellant sad iaviced <ne sfficers <s return,
‘as warned sf Sis rignts, and coowisgly waived iis right =o cave
counsel present.
Appeliant a.50 aryues =2at 2:5 statements sould cave seen
Suppressec sn <ne fscund <nac <ney were ct made voluntaricy sut
ere <=ne produc= sf actual ssercicn. 4a fiad <nis argument <s se
completely without seri:.
App@l.art contends <nat cine <r:al scurt snculd wave
PrOGisicec any relerence <> some sags 2/ cari:uana “nat vers
found sy tne cfficers +nc searcned and collected evicence ‘sce
appellant's car. This testiaony constituted eviience sendiag <s
Show criminality separate ‘fsom and unrelated <5 «he criss cnarzedc
2 the undicumeant. The evidence vas <ct relevan: :: any .asue <2
materia. fact, and <nerefsre snculd save seen sel4d -nacmissisle.
See 4i.--a5s 7. Stace, 1.3 $0.24 $34 (Pla.), Sts. sensec.
36. 9.8. @47 (13999). ‘The error, cscwever, was sarmless. “e
aio pams Tile is calculated =o srevent <he infaicmess sf .
SONVictiung sme accused cm ihe sasis 3f evidence Showisg 12 2
Save sac character or 4 Sropensity =o commiz crises such as tne
sme charged. ‘“Tvidence <nat <ne ‘efendant sas commicted 1
Similar crime, cr cme equally seincus, will frequentiy sromee a
more reacy sel.ie‘ Sy =ne tury that +e Z.got save scommiccted <ne
one With WRich he is charged, =neresy prec.spesisg <re sisd 3?
se juror ts selieve che prisoner fuilty.* ‘Yiccels 7. Stace, 36
Pla. 659, 485, 1236 So. 479, 488 (1325). The admission 32
.trelevant evidence sanding <5 snow Sommiassicn of 4 4i88imilar cr
much less sericus crise, ca the other hand, say 2@ “armless
error. See =s05c0l.no 7. State. 223 $0.24 42 Pla. id 3CA), agpea.
2iSMissed, 214 So.2¢ 120 (Pla. 1969), sears. teniecd, 139 7.5. 927
1370). Appellant sas ‘failed <5 show sow «se S@stisory ascut <6
Sar. uana sould save isproperly sreludiced «ine Serv agaanst <3.
@e snerefore fisd <ne error <o save seen rarnless. gee State -.
a” Sie 220 So.2d 4 (Pla. 1968).
Appellant also contends <hat <ne crial court erred i:
allowing <ne cestiacny of a cellaate vnc descrised an isciéent
after appellant's arrest i. which 2e either commicced sexual
satcery spon ancther umata or attempted <5 ic sc. Agais
appellant azyues <hat ine testimeny was ict relevant :s any .ssue
of sater:al ‘act. 4e find, scowever, «nat ihe ‘@Stiscry was
TRlevant secause .: iscluded. and explained <ne context 2%, an
SSCTISLAAting AGBls3icn sace sy appellant. The vicmess 28st. lied
chat ne 2:4 rct actually see what <ransp.isec cetween ipseicant
and she ctmer sriscner secause <re si=mess anc “ne remaining
priscners vere sréerec ‘=o <5e sccm sy sppellant, “ho .ad armec
samsel‘! with a sharpered spoon. JZcwever, <= 2e@ 41=°26S58 $a.¢ *1@ Saw
appeliant a short <ise afcervard and <"at icpel.ant, «no appearec
angry and d:sneveled, sa:c, *= wonder scw ce'4 ..<e@ 4a coke sotte
2p 223 ass Lixe = zave ser.“ Re relevance sf <2:3 sdmission
Lies wn its somnecesca “3 <ne sedical examiser's cestiscny <=at
the Victia's rectal lacerations were <sonsistent “i== =e
insertion of an sbtect such as a Coxe Scttle. The statement was
therefcre relevant and =he ‘estismony “as idmissisie <> provice
the context ic which the statement «as tace. The Tul-ng was 10t
error.
Be come scw <c sonsiderat.sn of she sentencicg proceedic¢
and =he sentence of ieath. As aggravating <ircumstacces, =<«8
estal cours found: (1) cmat appellant iad srevicusly sees
convicted sf second-degree surcer in =<ne State of New York, a
felony .avelviag viclence; (2) that at che ciae of <ne surcer sf
Ceboran Kammerer, appellant was <n parcle ‘rom <=e sentence
i=zposed upon nim {sr che Yew York murcer anc was <nerefsre uncer
sentence cf .=)r:scmment); (3) <hat =ne surcer of Seccrzcn
Kammerer was sommicted ic =he sourse of sommiccing sexual
battery: (4) c<hat che surder of ceboran Sammerer vas som. stad
for tne purpose sf avoidisg arrest Sy elosainating ier as a
¢itiess <s <ne cxime c7 sexual cattery: asc $) <nat <2e@ curser
#Qas especially “eiscus, atrocious, and cruel.
Appellant argues <"at <he <r14l court gave ioproper <cuble
consideration <3 a single sissumstancce Sy reciciag Soth =at
appellant ad srevicusly seen convicted cf a viclent ‘elony anc
chat he was cn parcle, siting Provence 7. Stata, 337 So.id 783
(Pla. 1976), cers. denied. 431 5.5. 969 (1977). The eriac:sle cf
Provence, scwever, .8 26t applicasle “ere. ‘in ?rsvence ve
reasoned <hat srocf chat a sapical ‘felony was sommiscted suring
tne course c2 a rocpery? recessarily “as sasec cn <Ae same istec=
sf ene seise chat srovided sse sasis ‘sr fisdiag <Re s0t-.7e 3st
34. -
pecuniary gain. The same reascnicg <ces «ict apsly <5 <ne =e
aggravating sissamstances -2 quest:cn cere. The srevicus
SSOMViCTLON anc <Ne sarscle scatus vere <sc secarate and i:stiace
cnaracterist.cs of <ne <efendant, «ct sased sn <ne same evidence
and <="e same essenc.a. ‘facts. Treretscre sesaracte {:nd::gs 32 <e
swo factcrs vere srcsrer.
appellant argues <n3at :* vas -=proser ‘sr <ne ssuz= <s
find =nae she sapical felony +as <somic< =3 che sourse sf =20
vaolent felony cf sexual satcery since =Se <sommissicn sf =he
sexual sattery was an essential element cf sroof cf murder uncer
che felony surcer <necory. This argument .3 wicscut seric. hire
v7. Stata, 403 $0.24 J31, 339-36 (Pla. 1981).
Appellant argues <"at <Se <=rial sorre's fSianding shat che
crime was especially Seincus, atrocicus, scr cruel vas er=cnecus.
The clearly established ‘acts of =ne murcer show <hat <=13
contention is wichout aerit. The victia suffered rumercus
Srusses and lacerations inflicted with a tard, sharp weapon.
There were <efense wounds showing <=nat she was alive and
conscicus when she was attacked. The 7icti2 was left i. <ne
water where she <rowned. ‘The capital felony was especially
Reinous, atrocicus, or cruel. See State 7. 5ixon, 23] Sc.id »
(Pla. 1973), cers. denied, 416 3.8. 943 (1974).
Appellant argues chat cnere was .nsutficzient srocf <nat
sme surder was ccoomicced ‘sr =ne purpose sf avoiding arrest. <n
Suppers of =<his ‘finding <se state refers us =o a statement
appellant sade =o Sis interrogators ~nen <Aey asked ii2 wnat ie
smougnt se shoulé <dc asout 2:3 “proplem.” Je said, “You ¢so wnat
you Rave <s do <5 protect Jobhy 4aterncuse. No cne wants <s go
“So jailt.° [S is questionable shether ils statement stppor=s =e
anference drawn sy =he state. Appellant's statements also
included suggesticns <Sat <he murder was sommicced is 4
Spur-cf-cne-nmoment rage. We reed act <ecide, Scowever, shecher
che lone statement .3 sufficient <5 prove a vicess-eliminatica
mct.7e, Since *#ven wishcut <nis aggravating siscumstance <ere
are Rumercus stner aggtavatiuxg sciscumstances <s sugpsecr= =e
“i080 ~
sentence. and x6 2c. geting <i rcumstacces.
appellant's sonmtestisons sf ersor i: <se judgment ire 41.
without ser::. The :udgment is aftissoed. 4e conclude <sat uncer
the proven ‘facts sf <=he <ase, & sentence sf <e#ica _4 appropr-ate.
Therefore <ne sentence of <eats is alse aftiszed.
It us so ordered.
ALSZERMAN, C.5., ACZOIS, 3CYD, SVERECN and McOCMALS, IS., Concur
ot ~ -
an Appeal ‘rom she Sircuis Court in and ‘sr ?inelias <sunct7,
Zobert £2. seach, Judge - Case No. 20-1925
Philip °. Padeovanc, Tallanassee,. ?lcorida,
for Appellant
Jim Smich, Attorney Seneral and Peggy A. Guince, Assistant
Attorney General, Tampa, ?lorida,
for Appellee
-—i2e.-
IN THE CIRCUIT COURT iti
FOR PINELLAS COUNTY, FLORIDA Appendix 8
CasE NO._cprannniazceaso
STATE OF FLORIDA
vs
ROSERD Se te eA eae
The following was done in open court this _ 22nd day of
AUGUST ». a
AFTER HEARING SWORN TESTIMONY AND ARGUMENT OF COUNSEL, DEFENDANT'S
MOTION TO SUPPRESS NUMBER I AND II IS HEREBY DENIED. NUMBER III GRANTED
AS TO STATEMENTS MADE JANUARY 10, 1980 AND DENIED AS TO THE BALANCE OF SAID
MOTION.
rile Dp
AUG 29 1980
HAROLD MULLENDORE
CLERK CIRCLIT COURT
Dated this 22nd day of
Plorida.
IN THE CIRCUIT COURT ee
FOR PINELLAS COUNTY, FLORIDA
CASE NO. CRCBO00192CFASO
STATE OF FLORIDA
vs
ROBERT BRIAN WATERHOUSE
50456
The following was done in open court ‘this - _ day of
AUGUST. » 19.20 _-
AFTER ARGUMENTS OF COUNSEL, IT IS CONSIDERED AND ORDERED THAT THE
STATES RE-HEARING OF MOTION TO SUPPRESS PREVIOUSLY HAVING BEEN GRANTED
ON AUGUST 22, 1980. THE COURT HEREBY VACATES AND SETS ASIDE PREVIOUS
RULING ON MOTION TO SUPPRESS OF AUGUST 22, 1980 AND THE MOTION IS
DENIED AT THIS TIME.
7.
FILED]
AUG 26 1980
HAROLD tauie
CLERK te
k QRCUT CuLat
ew!
Dated this 25th day of
Florida.
o's CARO FILED
STATE OF FLORIDA SEP - 3 1989
vs. the eayes counr
ROBERT BRIAN WATERHOUSE 00050456 . Aendlag
JUDGMENT AND SENTENCE - CAPITAL CASE - DEATH PENALTY
You, the defendant herei:, being present in persor ard with courssel,.
— SCHERER and JOHN THOR WHITE , having been duly and
es:iarly tried ty a petit jury of twelve people for the crime of |
oni IN THE FIRST ee
as charge 1, the ctmert. And you teins ww atterded ty your
counsel in open court, and having been called upon to say why se: terce
should not be prorourced upon you, and you ravirzg said nothirg which
would bar or preclude euch sertence, it is, therefore,
THE SENTENCE OF THE LAW AND THE JUDGMENT AND ORDER OF THIS COURT,
that you, for the crime of
for which you row stard con a : by
of the County of Pinellas to the common jaid of said County or the
State Prisor in the State of Florida and there securely kept u:til
such time as the Goverror of the State of Florida shall ir ard by
his Warrant fix ard appoint, at which time you shall be delivered by
the Sheriff of said County to the Superinterdent of the State Prisgor
of the State of Florida, at the place of execution named ir the
Governor's Warrant as soon as may be after receipt by the Sheriff of
the said County of the Death Warrant for you from the Goverror of said
State, at which time ard place in said Warrant fixed and named, ard
within the walls of the permarent death chamber provided by law, you
shall be, by the proper execution officer of the State Prigon,
electrocuted until you are dead. And may God have mercy on your soul.
Thereupon the defe::dart was remanded to the tody of the Sheriff.
n— Judge of the Circuit Court
rN >
Left four finsers Teft ~ RASr.t Right four fingers
i sy e * 4 kL. : Thunb Thumh + + "* -
. > att...
® “ os 4 a ae
a > ™ ay gee: ABs = “7 ve > : «
Mes ‘<3 : . SS ai = * == <2 i “2 - << 2
4 * ‘SBS «it :. &S See Ft setae. Yeo 4
= > 3 =~ S SS Z od ; Ty & “reg! ¥: “ %
*e ei. 2 A = Y a - ay a y 2. SS 3 z #3 -4 2: «2%
e--. % . oe By < (Bot - eee ee 4
- =~ —_ —- tA" 3 “
on -_ Pet 5 a =.
= pa + ie anal Pd es Fr’.
I ane certify that the above ard foregoi: ¢ firgerpri:.ts or this ae
Judgment are the firgerprints of the defendant, ROBERT BRIAN WATERHOUSE
» and that they were p reon by sa
defe.da:t ir my presence, ir oper. court, this the 3rd day of
September —.» 62...
ort reult Court
; IN THE CIRCULT COURT FOR PINELLAS COUNTY, FLORIDA
CRIMINAL DIVISION
CIRCUIT CRIMINAL NO. 80-192
STATE OF FLORIDA ) :
vs. MURDER IN THE FIRST DEGREE
ROBERT BRIAN WATERHOUSE 5g +/4(,
; FILED
ORDER SEP 15 i989
THIS CAUSE came on to be heard on the sen ete eur: fos
~——~ Depaty Clerk
Defendant, ROBERT BRIAN WATERHOUSE, foll Grit the conviction 6
Murder in the First Degree and an advisory verdict recommending
the death penalty by a jury of twelve of his peers and the Court
having heard the case in chief and considered the mitigating
and aggravating circumstances, makes the following Findings of
Facts and Orders:
AGGRAVATING CIRCUMSTANCES
A. The Defendant, ROBERT BRIAN WATERHOUSE, was previously
convicted in New York of the felony of Murder in the Second Degree.
The Defendant was sentenced to twenty (20) years to life for the
commission of that crime but was paroled after serving approximately
eight (8) years in the New York prison system. At the time of the
commission of the present homicide, ROBERT BRIAN WATERHOUSE was
on lifetime parole from New York.
B. At the time of the commission of the present homicide,
- ROBERT BRIAN WATERHOUSE was previously convicted of the said New
York felony involving the use or threat of violence to the victim of
the said New York homicide.
C. The Murder in the present case was committed by ROBERT
BRIAN WATERHOUSE while ROBERT BRIAN WATERHOUSE was engaged in the
commission of a Rape, also known as an Involuntary Sexual Battery,
a life felony, upon the victim.
D. The Murder in the present case was committed for the
purpose of avoiding or preventing a lawful arrest in that the victim
_in the instant case was killed in order to eliminate her as a witness
Po ieetaees
wo ¢
E. The Murder was committed by ROBERT BRIAN WATERHOUSE
in an extremely wicked, outrageous, shocking, evil, and vile
manner, and in a way designed to inflict 4 high degree of pain
upon the victin with utter indifference to the suffering of the
victim, and, therefore, was especially heinous, atrocious, and
cruel.
MITIGATING CIRCUMSTANCES
A. None.
THEREFORE, it is the order of this Court that the
Defendant, ROBERT BRIAN WATERHOUSE, be sentenced to death in the
electric chair.
DONE AND ORDERED in Chambers at St. Petersburg, Pinellas
County, Florida, this JL d— day of September, -1980.
HLL A. ual
CIRCUIT JUDGE
Copies furnished to:
JACK HELINGER and ROBERT MERKLE, State Attorney's Office,
150 - Fifth Street North, St. Petersburg, Florida;
PAUL SCHERER and JOHN WHITE, Attorneys for the Defendant,
2901 - First Avenue North, St. Petersburg, Florida. :
ROBERT SRIAN WATERHOUSE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
On consideration of the
attorney for appellant,
IT IS ORDERED by the Court that said
same is hereby denied.
ALDERMAN, C. ADKINS, BOYD,
MCDONALD, -, Dissencs
A True Copy
TEST:
==
Sid IT White
Clerk Susreme Court
IN THE SUPREME COURT OF FLORIDA
WEDNESDAY, APRIL 27, 1983
Appendix C
:*
ads CASE NO. 59,765
ee Circuit Court Case No. 80-1325
(Pinellas)
2?
22
Petition for
and OVERTON, JJ.,
Cc
cc: Hon. Karleen
Hon.
Philip J. Padovano,
rehearing filed by
petition be and the
Concur
°. DeBlaker, Clerk
Robert E. Beach, Chief Judge
Esquire
Mr. Robert Brian Waterhouse
Peggy Quince,
Esquire
.
-
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
ROBERT BRIAN WATERHOUSE,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
AFFIDAVIT OF SERVICE
DISTRICT OF COLUMBIA: ss:
The undersigned, John H. More, being duly sworn,
hereby deposes and states on his oath that on this 26th day
of July, 1983, he has served one copy each of Petitioner's
Petition for Writ of Certiorari to the Supreme Court of
Florida and Motion to Proceed in Forma Pauperis with attach-
ments, by first-class mail, postage prepaid, upon the
Honorable Jim Smith, Attorney General of the State of
Plorida, The Capitol, Tallahassee, Florida 32304.
All parties required to be served by me have been
served.
MM Lf [Myre
OVINGTON & BURLING
R20] Pennsylvania Avenue, N.W.
Post Office Box 7566
Washington, D.C. 20044
(202) 662-6000
Subscribed and sworn to before me this 26th day
of July, 1983.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
ROBERT BRIAN WATERHOUSE,
Petitioner,
v.
STATE OF FLORIDA
Respondent.
MOTION TO PROCEED IN FORMA PAUPERIS
The petitioner, Robert Brian Waterhouse, who is
now held in the Florida State Prison at Starke, Florida,
asks leave to file the attached Petition for a Writ of
Certiorari to the Supreme Court of Florida without pre-
payment of costs and to proceed in forma pauperis pursuant
to Rule 46. 28 U.S.C. § 1915(a); Adkins v. Du Pont Co.,
335 U.S. 331 (1948).
Attached hereto are copies of an Affidavit of
Insolvency, Orders of Insolvency, and Appointing Attorney
filed for petitioner in the Circuit Court for Pinellas
County, Florida. Attached also is a copy of an affidavit
in the hands of petitioner who presently is incarcerated
in the State of Florida. I will file the affidavit when it
has been executed and delivered to me. The firm of Covington
& Burling has taken this case on a pro bono publico basis.
c. M« Kan, att
J C. MCKAY JI
(Gounsel)
OHN H. MORE
Covington & Burling
1201 Pennsylvania Avenue, N.W.
P.O. Box 7566
Washington, D.C. 20044
(202) 662-6000
Attorneys for Petitioner
July 26, 1983
—<_.
fadtet 5. CatnArwa 0 ee tout
JOKWS Zee os
COUNTY COURT, PINELLAS COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO. FO 20/9 Ch PSe
STATE OF FLORIDA FILE D
JAN 10 1980
AFFIDAVIT OF INSOLVENCY
Affiant being first duly sworn on oath deposes and says that he is
totally insolvent and utterly unable to pay the charges, costs or fees in this
cause either in whole or in part; that he has no property or other means of
payment either in his possession or under his control and that he has not
divested himself of any property, either real or personal, for the purpose of
receiving benefit from his oath; that he, at this time, is wholly without funds
and unless this Court makes and enters an Order adjudging hia, this defendant,
insolvent, he will be deprived of his rights under the law in such cases made
and provided. This affiant offers himself up to the Court for the purpose of
further examination into his insolvency. :
Affiant further says that he has been informed that a lien for the
value of the services rendered him by the Public Defender, and/or his costs of
defense may be impressed by law on any property he now has, or may hereafter
have, in the State of Florida, and he hereby waives notice of any proceedings
at which the value of the services of the Public Defender and/or costs of
defense, as aforesaid, may be determined, and further waives any notice of the
filing of the aforesaid lien.
QRDER OF INSOLVENCY AND APPOINTMENT OF PUBLIC DEFENDER
The above named Defendant, being before the Court and the said Defendant
having filed in this Court his Affidavit of Insolvency; and testimony having been
taken before the Court; and the Court being otherwise fully advised in the premises,
it is, thereupon
ORDERED AND ADJUDGED that the Defendant be, and he is hereby, declared
to be insolvent within the meaning of Sec. 27.52 FLORIDA STATUTES; and it is further
ORDERED AND ADJUOGED that the Office cf the Public Defender for the
Sixth Judicial Circuit, in and for Pinellas County, Florida, is hereby appointed
to represent said Defendant in the above styled cause.
IT IS FURTHER ORDERED that in the event the defendant, or his parents,
is ordered to pay for the costs of the Public Defender's services, then the
Public Defender shall, within 30 days of the final determination of this cause,
submit a Motion to this Court to Establish the Value of the Services of the
Public Defender. If the Court has also ordered the defendant to pay for the
costs of defense, then the Public Defender shall, within 30 days of final deter-
mination of this cause, submit an Itemized Statement of Costs of Defense, such
lists be obtained from the Clerk's Office of the Board of County Commissioners.
aay re yoa0eren this day of __ MN 7
at Re at OB , Florida.
225 1 a oS
. +
oe me mre mtg : ss
IN THE CRCUIT COURT
FOR PINELLAS COUNTY, FLORIDA
CASE NO, CRC8000192CFASO
FILED
STATE OF FLORIDA OCT 8 3980
~ ae Che —_ SID J. WHITE
ROBERT BRIAN WATERHOUSE ey . SUPREME COURT °
50456 “~at Ommaney Chart
The following was done in open court this 4th day of
September , 19 80.
IT IS CONSIDERED AND ORDERED THAT THE COURT HEREBY APPOINTS ATTORNEY
PHILLIP PADAVANO TO REPRESENT THE DEFENDANT IN THE ABOVE CAUSE FOR PURPOSES
OF APPEAL.
naa Cia ne sl F l L E D
Beda) sera agen 5 SEP 10 965
WITNESS, ws bared aol Us. “atisd. Seal, Usis HAROLD
g dy o?. a ae D., 3° | = Pcount
me,
< is — ms ied
epaty Lad
Dated this 4th day of September , 19 80 , in St. Petersburg,
Florida.
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
ROBERT BRIAN WATERHOUSE, Petitioner
Vv.
STATE OF FLORIDA, Respondent
AFFIDAVIT
I, Robert Brian Waterhouse, being first duly sworn
according to law, depose and say, in support of any motion
for leave to proceed without being required to prepay costs
or fees: (1) I am the petitioner in the above-titled case.
(2) Because of my poverty I am unable to pay the costs of
my petition. (3) I am unable to give security for the same.
(4) I believe that I am entitled to the redress I seek in
said case. (5) The nature of the case is briefly stated as
follows:
I was sentenced to death by the Circuit Court of
Pinellas County, Florida, on a first degree murder charge.
The present proceeding was commenced to reverse my conviction
and sentence on constitutional grounds.
Robert Brian Waterhouse
Duly witnessed and sworn before me,
a Notary Public, this day of
June, 1983.
Notary Public
No. A-1008
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
ROBERT B. WATERHOUSE,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
On Writ of Certiorari to the
Supreme Court of the State of Florida
‘
APPLICATION FOR EXTENSION OF TIME IN WHICH
TO PILE PETITION FOR WRIT OF CERTIORARI
AND PERMISSION TO FILE A SUBSTITUTE PETITION
To the Honorable Lewis F. Powell, Jr., Associate
Justice of the United States and Circuit Justice for the
Eleventh Circuit:
Petitioner Robert B. Waterhouse prays that an
order be entered further extending the time for filing a
petition for writ of certiorari to and including August 25,
1983. This application is being submitted together with a
Petition for a Writ of Certiorari in order to preserve
petitioner's constitutional issues. The reasons for this
extraordinary request are set forth below at p. 3. The
relevant dates for this application for extension are:
April 27, 1983: Petition for rehearing denied by
the Supreme Court of Florida.
June 27, 1983 (June 26 is a Sunday): Expiration
of time for filing petition for writ of certiorari in this
Court, unless extended.
July 26, 1983: © Expiration of requested 30-day
extension of time for filing a petition in this Court.
July 26, 1983: Time for filing per Order Ex-
tending Time to File Petition for Writ of Certiorari, dated
June 17, 1983, by Justice Lewis PF. Powell, Jr.
No opinion was rendered by the Supreme Court of
Plorida in the course of denying the petition for rehearing.
The pertinent nature of the petitioner's case is as follows:
1. Petitioner was sentenced to death in 1980 in
the Circuit Court for Pinellas County, Florida, after a
trial and sentencing hearing before a jury.
2. On February 17, 1983, the Supreme Court of
Plorida in a per curiam opinion affirmed the conviction of
murder in the first degree and sentence of death, overruling
Petitioner's constitutional contentions that (a) his state-
ments should have been excluded from evidence on the grounds
that (i) they were obtained as the result of an illegal ar-
rest or detention, (ii) they were obtained after he had ex-
pressed his intention to remain silent, (iii) his final
statement was obtained in an interview conducted without
notice to his court-appointed attorney, and (iv) there was
no showing that the statements were made voluntarily;
(b) tangible evidence seized from his car should have been
excluded on the grounds that the evidence was obtained as
the result of an illegal arrest or detention and of a search
made without probable cause or search warrant; (c) evidence
of Petitioner's alleged use of marijuana and an alleged
homosexual rape attempt should have been excluded on grounds
of lack of relevance; (d) the evidence was insufficient to
support a finding that a capital felony had been committed
by Petitioner for the purpose of avoiding or preventing a
lawful arrest or a finding that the capital felony was par-
ticularly heinous, atrocious, and cruel; (e) the trial judge
erred in basing two of the aggravating circumstances on a
single prior act of Petitioner; and (f) involuntary sexual
battery was an essential element of the homicide and, as
such, could be used as an aggravating circumstance.
This Court's jurisdiction under 28 U.S.C. § 1257(3)
will be invoked.
This extension of time and permission to substi-
tute a final Petition is requested since (1) the undersigned
were ordered by the petitioner, Robert B. Waterhouse, today
by telephone not to file the Petition for a Writ of Certio-
rari, which accompanies this Application, on the grounds
that he has not reviewed and approved the final version of
the Petition to be filed; (2) petitioner wishes to have an
extension of time to be able to review the final version
before it is filed; (3) petitioner has refused to sign an
affidavit for the Motion to Proceed in Forma Pauperis until
he has reviewed the draft and approved its filing, (4)
petitioner indicates that he will write the Supreme Court to
have the Petition withdrawn if he does not receive the op-
portunity to review and approve; and (5) the gravity of the
death penalty warrants the provision of sufficient extra
time to enable petitioner to review the Petition and suggest
any reasonable changes. Extension of the time for filing to
August 25, 1983, would provide enough time to accomplish the
tasks mentioned above.
Since Petitioner continues to be incarcerated in
the Florida State Prison, no prejudice to the State's con-
cerns can result from an additional 30-day extension of time
requested.
Wherefore, Petitioner respectfully requests an
order extending the time for filing a petition for writ of
certiorari to and including August 25, 1983.
July 26, 1983
Respectfully submitted,
ae e. Me Kay Sire
James C. McKay =.
ounsel of Record
John H. More
COVINGTON & BURLING
1201 Pennsylvania Avenue, N.W.
Post Office Box 7566
Washington, D.C. 20044
(202) 662-6000
Attorneys for Petitioner
CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of July,
1983, copies of this application were mailed, postage pre-
paid, to the Attorney General of the State of Plorida, Tal-
lahassee, Florida. I further certify that all parties re-
quired to be served have been served.
/ Mas
as for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.