Appendix — ADAMS v. WAINWRIGHT (No. 83-5701)

| RECEIVED

Syl der. AD

Uren. or ian Caen

SUPREME CnonieT ns

No.

83-5701

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

alee iete ited ttt ELLE LLL LEE ELT LirTrrrereTe

JAMES ADAMS,

Petitioner,

vs.

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

Respondent.

PETITION POR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS POR THE ELEVENTH CIRCUIT

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida

224 Datura Street/l3:> Ploor

West Palm Beach, Florida ;}:401

(305) 837-2150

RICHARD H. BURR, III

Of Counsel

TATJANA OSTAPOFP

MICHAEL A. MELLO

Assistant Public Defenders

Counsel for Petitioner

Opinion of the United States Court of Appeals

for the Eleventh Circuit, July 18, 1983

Order Denying Rehearing

Florida Statutes, Section 921.141

Opinion of the Supreme Court of Plorida

on Direct Appeal

Opinion of the Supreme Court of Plorida

on Gardner Application

Opinion of the Supreme Court of Plorida

on the Appeal from the Denial of

Rule 3.850 Motion

Order Denying Habeas Corpus Relief,

United States District Court

for the Southern District of

Plorida

l0a-lla

12s-l7a

18a-19a

20a-22a

23a-32a

ADAMS +. WAINWRIGHT

(Cite as 708 F 26 1443 (1983)

James ADAMS, Petitioner,

v.

Louie L. WAINWRIGHT, Respondent.

No. 82-5595.

United States Court of Appeals,

Eleventh Circuit

July 18, 1983.

Petitioner, who was convicted of first-

degree murder in a Florida state court and

sentenced to death, appealed from an order

of the United States District Court for the

Southern District of Fiorida, Gonzalez, J.,

which denied his petition for a writ of habe-

as corpus. The Court of Appeals held that:

(1) petitioner failed to establish that his

counsel's decision to make a plea of mercy,

in lieu of presenting any mitigating evi-

dence, was not one of strategy taken after

he reasonably investigated other plausible

options or that counsel's decision, if iactical,

was patently unreasonable; furthermore,

other actions for which petitioner faulted

his counsel did not amount to ineffective-

ness, and (2) death penalty was not grossly

disproportionate and excessive in felony-

murder case in which it was established

1443

la

1444 709 FEDERAL REPORTER, 2d SERIES

that defendant personally killed victim, sav-

agely beating him to death during course of

a robbery.

Affirmed.

1. Criminal Law 641.13(1)

Habeas Corpus ¢=25.1(6)

Even if in retrospect trial counsel's

strategy appears to have been wrong, coun-

sel's decision will be held ineffective only if

it was so patently unreasonable that no

competent attorney would have chosen it

and burden of proof w establish ineffective-

ness and prejudice is on habeas petitioner.

2. Criminal Law @641.13(6)

Petitioner failed to establish that his

counsel's decision to make a plea of mercy,

in lieu of presenting any mitigating evi-

dence in murder trial, was not one of strate-

gy taken after he reasonably investigated

other plausible options or that counsel's de-

cision, if tactical, was patently unreason-

able; furthermore, other actions for which

petitioner faulted his counsel did not

amount to ineffectiveness.

3. Criminal Law &641.13(1) }

Effective counsel does not mean error-

less counse!.

4. Criminal Law & 1206(2)

Homicide 354

Death penalty was not grossly a.

oe ag and excessive in felony murder

in which it was established that de-

fundest personally killed victim, savagely

beating him to death during course of a

robbery. West's FSA. § 78204(1\a)

5. Criminal Law 1144.15

Jury is presumed to follow jury instruc-

tions.

6. Criminal Law 1144.15

In murder trial, jury was presumed to

have followed instruction that it could con-

sider only the aggravating circumstances

listed in the statute during penalty phase of

trial.

7. Homicide 354

In felony-murder case governed by

Florida law, tria! court did not err in find-

ing that the murder was especially heinous,

atrocious, or cruel

& Criminal Law 1144.17

In felony-murder iria! governed by

Florida law, it would be assumed that tria!

judge followed his own jury instructions

and considered only statutory aggravating

circumstances in sentencing defendant wo

death

9. Habeas Corpus 45.51)

Petitioner failed to show that jury in

his murder trial perceived that it could not

consider nonstatutory mitigating factors.

10. Habeas Corpus = 85.5(1)

Petitioner, who had no specific evi-

dence that Florida Supreme Court relied on

nonrecord infor nation in affirming his con-

vietion for first-degree murder and death

sentence, was not entitled to as relief

based on his claim that Florida me

Court received nonrecord informat

connection with review of his case

11. Habeas Corpus ¢=85.5(15)

Petitioner, who failed to proffer any

evidence that death sentence in his case was

product of intentional discrimination, was

not entitled to habeas relief on basis of his

claim that death penalty in Florida was

imposed disproportionately in cases involy-

ing a white victim and in cases tried in

certain county.

12 Constitutional Law @=270(3)

Disparate impact in sentencing alone is

insufficient to establish a violation of Four-

teenth Amendment; there must be a show-

ing of an intent to discriminate and only if

the evidence of disparate impact is so

strong that the only permissible inference is

one of intentional discrimination wil) it

alone suffice. USCA. ConstAmend. 14.

Craig S. Barnard, Chief Asst Public De-

fender, Jerry L. Schwarz, Tatjana Ostapoff,

Asst. Public Defenders, West Palm Reach

Fla, for petitioner.

2a

ADAMS v. WAINWRIGHT 1445

Cite as 708 F 26 1443 (1963)

Robert L. Bogen, Sharon Lee Stedman,

Asst. Attys. Gen, West Palm Beach, Fila.

for respondent.

Appeal from the United States District

Court for the Southern District of Florida

Before RONEY and CLARK, Circuit

Judges, and GIBSON *, Senior Circuit

Judge.

PER CURIAM

Convicted of first degree murder and sen-

tenced to death, James Aaams appeals the

denial of his petition for a writ of halwas

corpus. All of Adams’ arguments on appeal

concern the imposition of the death penalty

We affirm essentially on the basis of the

district court's extensive opinion We

briefly review the case and address Adams’

contentions seriatim as presented to us

In the course of a robbery at the victim's

home, Adams beat Edgar Brown senseless

with s firepoker. Brown died the following

day. A Florida jury found Adants guilty of

murder and recommended the death penal-

ty, which the trial judge imposed The

Florida Supreme Court affirmed the convie-

tion and sentence. Adams + State, 341

So.2d 765 (Fia.1976). The United States

Supreme Court denied certiorari. Adams v.

Florida, 434 US. 878, 98 SCt 22, M4

L.E4.26 158 (1977). The Florida Supreme

Court later denied an application for relief

based on the tra! court's alleged reliance on

confidential and erroneous information dur-

ing the penalty phase of the trial, Adams v.

State, 355 So.2d 1205 (Flal97), and the

United States Supreme Court again denied

certiorari. Adams v. Florida, 439 US. 947,

99 S.Ct 340, 58 L.Ed 2d 338 (1978). When

the Florida state courts denied any collater-

al relief, Adams v. State, 380 So.2d 423

(Fila.1980), Adams filed his petition for ha-

beas corpus relief in federal! district court.

The district court denied the writ in an

unpublished opinion, but granted a certifi-

cate of probable cause and a stay of judg-

ment pending appeal.

* Honorable Floyd R Gibson. US Circust Judge

Ineffective Assistance of Counse!

Adams argues his counse! was ineffective

during the penalty phase of the trial be-

cause he failed to present any mitigating

evidence. Counsel's closing argument con-

sisted exclusively of a plea for inercy

{1} The crucial question is whether

counsel's decision to make a plea for mercy,

in leu of presenting any mitigating evi-

dence, was one of strategy taken after he

reasonably investigated other plausible op-

tions. In Washington v. Strickland, 693

F 2d 1243, 1253-54 (Sth Cir. Unit B 1962)

(en bane), cert. granted, —— US. ——-, 103

S.Ct 2451, 75 LEd 2d (1983), we ob)-

served that a strategic decision to pursue

less than al! plausible lines-of defense w1\!

rarely, if ever, be deemed ineffective if

counse! first adequately investigated the re-

jected alternatives. Cf Westbrook v. Zari.

704 F 2d 1487, 1500 (11th Cir.1983) (strate-

gic decisions generally do not render coun

sel ineffective) Se otreapect the

strategy) appears to Nave Mm wrong, th

decision will be held ineffective only if it

was so patently unreasonabie that no com-

petent attorney would have chosen it

Washington v Strickland, 693 F 2d at 124

see also Ford v. Strickland, 696 F 2d 804i.

820 (11th Cir.1983) (en banc); Baldwin +

Blackburn, 653 F.2d 942, 946 (Sth Cir 1981),

cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72

L.Ed.2d 475 (1982); Beckham v. Wain-

wright, 639 F.2d 262, 265 (5th Cir 1981)

The burden of proof to establish ineffec-

tiveness and prejudice is on the petitioner

Washington v. Strickland, 693 F.2d at 1258,

1262; Adams v. Balkcom, 688 F.2d 734, 738

(11th Cir.1982)

{2] Adams has failed to establish that

the decision to ask the jury for mercy re-

flected less than reasoned professiona!

judgment. Adams did not call trial counse!

to testify at the state hearing and gave no

indication to the distmct court as to how

trial counsel would testify at any district

court hearing. Support counsel did testify

before the state court that the trial file

revealed no specific investigation into cer-

for the Eighth Circuit. sittung by designation

3a

1446 709 FEDERAL REPORTER, 2 SERIES

tain matters, such as Adams’ work record,

church activity and lack of education, but

acknowledged that the file showed counsel

had interviewed Adams’ wife, neighbors

and former employers. Notes in the file

indicated the wife knew Adams’ back-

ground completely. In short, there is no

basis in this record for finding that counsel

did not sufficiently investigate Adams’

background.

Assuming counsel's decision to forego

presenting evidence of Adams’ background

was one of tactics, it does not appear to

have been patently unreasonable. As the

district court noted, counsel) may have

feared that if he presented evidence about

defendant's background, the state could

have refuted it by calling attention to dam-

aging evidence in the record. For exampl-

if counsel had offered evidence of Adams’

family life, the state could have emphasized

that Adams was separated from his wife at

the time of the murder because of his rela-

tionship with a sixteen-year old girl. Simi-

larly, if counsel had presented evidence of

Adams’ religious devotion, the state could

have noted that he spent the Sunday before

the Monday murder gambling. Counsel

could have reasonably decided that raising

Adams’ background might do more harm

than good, and that the best strategy was

to ask for mercy. See Stanley v. Zant, 697

F.2d 955, 965 (11th Cir.1983).

(3) The other actions for which Adams

faults his counsel do not amount to ineffec-

tivencss. Adams argues his attorney should

have objected first when, during the penal-

ty phase, the state brought out that the

victim of a prior rape committed by Adams

was white, and second when, during argu-

ment thereafter, the state's attorney men-

tioned that the murder victim was a promi-

nent, long-time local resident and Adama

was from Tennessee. Defense counsel

probably should have objected on both occa-

mean erroriess counsel. Adams v. Balkcom,

688 F.2d at 738; Goodwin v. Balkcom, 684

F.2d 794, 804 (11th Cir.1982), cert. denied,

— US —, 103 SCt 1798, 76 LEd2d

364 (1983); Young v. Zant, 677 F.2d 792,

798 (11th Cir.1982); Mylar v. Alabama, 671

F.2d 1299, 1300 (11th Cir.1982), petition for

cert. filed, 530 U.S.L.W. 3984 (U.S. June 15,

1982) (No. 81-2240). In any event, Adams

has not shown the failure to object worked

to-his “actual and substantia! disad.an-

tage.” Washington v. Strickland, 693 F 2d

at 1242 Put another way, it does not ap-

pear that objections by counsel would have

worked to Adams’ advantage in any materi-

al way

Adams complains about the failure to

“clanfy” his criminal record which had been

brought out at trial Adams contends that

when he testified at trial on cross that he

had five or more previous convictions, he

was mistaken. According to Adams, coun-

se] should not only have realized this mis-

take, but also should have discovered the

allegedly questiozable constitutionality of

three convictions. By calling attention to

Adams prior record, however, counse!

might have hurt his cli record does

not establish the nu of convic-

tions, but there is no doubt that Adams had

at least three previous convictions, includ-

ing one for rape. Adams failed to establish

prejudice. The government raised only the

rape conviction during the sentencing pro-

ceeding, the judge properly instructed the

jury to consider only statutory aggravating

circumstances, and the trial court found

humerous statutory aggravating circum-

stances to warrant the death sentence.

Imposition of the Death Penalty for

Felony Murder

[4] As the murder occurred during the

course of a robbery, Adams was indicted for

and convicted of felony murder. Florida

law classifies as first degree murder, pu-

ishable by death, a homicide committed

without premeditation during the comm:s-

sion of certain felonies, including robbery

Fla. StatAnn. § 782041Ma). Relying prin-

cipally on Enmund v. Florida, — US

—, 102 SCt 3368, 73 LEd2d 1140

(1982), Adams argues the death sentence in

this case is disproportionate and excessive

because it is based on felony murder with-

out a specific finding of intent to kill.

7)

ADAMS vy. WAINWRIGHT

1447

Cite as 708 F 26 1443 (1883)

Although Enmund did hold that the

death sentence could not be imposed where

no intent is shown and the killing occurs

during the perpetration of a felony, that

case is readily distinguishable. Defendant

Ear! Enmund in that case was waiting in

the getaway car during a planned robbery

when one or both of his two co-felons shot

and killed two victims who resisted the

robbery. The Supreme Court held the

death penalty disproportionate to Enmund’s

culpability, reasoning that he personally

“did not kill or attempt to kill” or have

“any intention of participating in or facill-

tating a murders" —— US. at ——, 102

S.Ct at 3377, 73 LEd2d at 1152 Here

Adams personally killed his victim, savagely

beating him to death. Adams acted alone

He is fully culpable for the murder. Under

these circumstances, the death penalty is

not “grossly disproportionate and exces-

sive.” Coker v. Georgia, 433 U.S. 584, 592,

7 S.Ct ; L.Ed.2d 982 (1977)

(plurality opinion)

Adams also argues that Florida has im-

permissibly made the death penalty the

“automatically preferred sentence” in any

felony murder case because one of the stat-

utory aggravating factors is the murder

taking place during the course of a felony

The short answer is that the United States

Supreme Court has upheld the Florida

death penalty statute, including necessarily

the use of this statutory aggravating fac-

tor. Proffitt v. Florida, 428 U.S 22, 96

S.Ct. 2960, 49 L.Ed2d 913 (1976). Florida

does not mandate the death penalty in al!

felony murder cases. The defendant is not

precluded under Flonda law from present-

ing any mitigating factors. Sec id at 20

n. 8 96 SCt 1 at 265 n. 8; Ford v.

Strickland, 696 F.2d at 812

Aggravating Circumstances Considered

by Judge and Jury

[5,6] Adams argues the aggravating

circumstances considered by the tra! judge

and jury failed to channel their sentencing

discretion as required by cases such as God-

frey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759,

64 L.Ed. 2d 398 (1980). With respect to the

jury's consideration, Adams contends the

prosecutor's closing remarks, in which he

referred to the prominence and loca! roots

of the victim, introduced for jury considera-

tion nonstatutory aggravating circumstzrc-

es. The judge properly instructed the jury,

however, that it could consider only the

aggravating circumstances listed in the

statute. A jury is presumed to follow jury

instructions. See Grizzeil v Wainwright,

692 F.2d 722, 726-27 (1ith Cir. 1982), cert

denied, ——- US. ——, 103 S.Ct. 212, 75

L.Ed.2d —~ (1983).

(7] In regard to the judge's considera-

tion of aggravating circumstances, Adams

faults the judge for finding the murder

“especially heinous, atrocious, or cruel.” In

upholding the trial judge's finding, how-

ever, the Florida Supreme Court properly

noted that Adams had killed his victim “by

beating him past the point of submission

and until his body was grossly mangled”

Adams v. State, 341 So2d at 769 = = Al-

though Adams argues there are Florida

cases with similar facts which were not held

to be “especially heinous, atrocious, or cru-

el,” it is not the role of the federa! courts to

make a case-by-case comparison of the facts

in a given case with other decisions of the

state supreme court. Ford » Strickland

696 F.2d at 819; Spinkellink + Wainwnght,

578 F.2d 582, 604-05, cert denied, 40 US

976, 99 S.Ct 1548, 59 LEd2d 796 (1979)

{8) Finally, Adams contends the judge's

written findings reveal he considered a non-

Statutory aggravating circumstance, the de-

fendant's prior criminal record. Although

it may be unclear from his findings whether

the judge considered Adams’ record as an

aggravating circumstance or only to the

extent those convictions negated the statu-

tory mitigating circumstance of insignifi-

cant prior criminal history, it is reasonable

to assume that the trial judge followed his

own jury instructions and considered only

Statutory aggravating circumstances.

Failure to Require Resentencing When

Evidence Insufficient on Some

Aggravating Circumstances

On direct appeal, the Florida Supreme

Court upheld the death sentence even

1448 709 FEDERAL REPORTER, 24 SERIES

though it determined the evidence did not

support two of the six aggravating circum-

stances found by the trial judge. Adams v.

State, 341 So.2d at 769. The six aggravat-

ing cireumstances relied upon by the trial

judge were (1) the commission of the homi-

cide by a person under sentence of impris-

onment, Fla Stat.Ann. § 921.141(5Xa); (2)

the commission of the homicide by an indi-

vidual previously convicted of a felony in-

volving the use or threat of violence to a

person, id. § 921.141(5\b); (3) the commis-

sion of the homicide during the course of s

robbery, id. § 921.141(5Xd); (4) the commis-

sion of the homicide to avoid arrest, id

§ 921.141(5\Ne); (5) the commission of the

homicide for pecuniary gain, id. § 921-

141(5Xf); and (6) the especially heinous,

atrocious, or cruel nature of the homicide,

id. § 921.141(5h). The Florida Supreme

Court struck circumstances (4) and (5) as

unsupported by the evidence

Adams argues a death sentence cannot be

constitutional when some, but not all, of the

aggravating circumstances are struck, even

though there are no mitigating circum-

stances. This argument is foreclosed by

Ford v. Strickland, 696 F.2d 804 (11th Cr

1983) (en banc), in which we denied consti-

tutional relief where the Florida Supreme

Court had struck three out of eight aggra-

vating circumstances. The Florida court

noted here that there were no statutory

mitigating circumstances and that Adams

had argued only one nonstatutory mitigat-

4B factor, his status ws a human being

Adams v. State, 341 So.d: at 769.

Because of the United States Supreme

Court's consideration of Barciay v. Florida,

411 So.2d 1310 (Fla.1981), cert. granted, —

US. ——, 103 S.Ct HO, 74 LEd2d 382

(1982), however, we will withhold the man-

date until that case = decided.

Restriction on Consideration and Presenta-

tion of Mitigating Factors

[9] Adams alleges that, in an unrecord-

ed conference held in chambers prior to the

sentencing stage of trial, the trial judge

expressly precluded him from presenting to

the jury nonstatutory mitigating evidence

in violation of Eddings v. Oklahoma, 455

US. 104, 110, 102 S.Ct. 869, 874, 71 L.E4.2d

1 (1982). At the state court hearing on the

motion to vacate, support counsel testified

that he recalled the judge making a state-

ment to this effect in this case, but he was

not sure about the recollection because he

had been involved in a number of death

cases. Although he stated lead counsel had

verified the recollection in a recent conver-

sation, lead counse! did not testify at the

hearing The state court held this evidence

insufficient and c_nied relief. The Florids

Supreme Court affirmed, reasoning

Finally, we reject the claim that the

senicacing process must be voided be-

cause of a tenuous recollection of assist-

ant defense counsel of an unrecorded con-

versation with the trial judge, particular-

ly when there was no proffer of specific

nonstatutory niligating circumstanccs al

the original trial. We note that assistant

defense counsel initially was not even cer-

tain that the conversation took place dur-

ing this appellant's trial

Adams v. State, 380 So.2d 2t 424. The state

court's factual determination that the ev-

dence did not support the claim is entithed

to a presumption of correctness 28 US

CA. § 254d); Sumner v. Mata, 49 US

539, 545-46, 101 S.Ct 764, 768-769, 66

L.Ed 2d 722 (1981) (applying presumption of

correctness to findings made by a state

appellate court). This factual determina-

tion is permitted by the record. The trial

judge did not expressly instruct the jury

not to consider nonstatutory mitigating cir-

cumstances, and he permitted defense coun-

sel to argue that Adams’ life should be

spared because he is a human being, 4 non-

statutory factor

Adams argues, however, that the jury

instruction implied nonstatutory mitigating

factors could not be considered. Adams d-4

not object to the instruction as required by

Fla. R.Crim.P. 3.390(d)

In a case involving a virtually identical

jury instruction, Ford v. Strickland, 696

F.2d 804 (11th Cir.1983) (en banc), we held

that under Wainwright v. Sykes, 433 US

72. 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the

ADAMS v. WAINWRIGHT 1449

Cite as 708 F 24 1443 (1963)

procedural <ciault precluded review be-

cause the petitioner had not established

prejudice. He had failed to show that the

jury perceived it could not consider nonstat-

utory mitigating factors. 696 F.2d at 812-

13. Ford disposes of Adams’ argument.

The Brown Issue: Nonrecord Materia!

Before the Florida Supreme Court

{10} Adams was one of the 123 Florida

death row inmates who unsuccessfully

sought relief in state court based on the

Florida Supreme Court's receipt of nonrec-

ord information in connection with the re-

view of death cases. Brown v. Wainwright,

392 So.2d 1327 (Fla), cert. denied, 454 US.

1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

His argument in the federa! court is fore-

closed by Ford v. Strickland, 696 F.2d 804

(11th Cir.1983) (en banc). Adams has no

specific evidence that the Florida Supreme

Cerurt relied on nonrecord information in his

case

Arbitrary and Capricious Imposition of the

Death Penalty on the Basis of Race

and Geography

{11} Finaliy, Adams argues that the

death penalty in Florida is imposed dispro-

portionately in cases involving a white vic-

tum and in cases tried in St. Lucie County

In a motion before a state court for expert

assistance in post-conviction proceedings,

Adams cited statistics which arguably tend-

ed to support his claim. The statistics indi-

cated, for example, that from 1973-1977 St.

Lucie County accounted for 16% of the

domicides statewide, but 3.2% of the death

sentences, and that during this four-year

period the death penalty was imposed in St

Lucie County in 17% of the cases involving

white victims and none of the cases involv-

ing black victims, even though there were

more than twice as many cases involving

white victims. The state court denied Ad-

ams relief without affording him expert

assistance

[12] We need not decide whether the

statistics provided by Adams suggest a dis-

parate impact based on race and geography

in the imposition of the death penalty in

Florida. See generally Zeisel, Race Bias in

the Administration of the Death Penalty:

The Florida Experience, 95 Harv.L.Rev. 456

(1981). Disparate impact alone is insuffi-

cient to establish a violation of the four-

teenth amendment. There must be a show-

ing of an intent to discriminate. Village of

Arlington Heights v. Metropolitan Housing

Development Corp., 429 US. 252, 264-45, 97

S.Ct. 555, 562-565, 50 L.Ed2d 450 (1977);

Washington v. Davis, 426 U.S. 229, 239, 242,

96 S.Ct 2040, 2047, 2049, 48 L.Ed.2d 597

(1976), Spinkellink v. Wainwright, 578 F.2d

582, 614-15 (5th Cir.1978), cert. denied, 440

US. 976, 9 S.Ct 1548, 59 LEd2d 796

(1978). Only if the evidence of disparate

impact is so strong that the only permissible

inference is one of intentional discrimina-

tion will it alone suffice. See Smith +

Balkcom, 671 F 2d 858, 859 (Sth Cir Unit

B), cert denied, — US. ——, 18 S(t

181, 74 L.Ed 2d 148 (1982). That is not the

case here. There were only four death sen-

tences imposed in St. Lucie County during

the four-year period, so the variance in the

percentage of such sentences in cases in-

volving white and black victims is not all

that revealing See Adams v. State, 380

So.2g at 425; see also Spinkellink v. Wain-

wright, 578 F.2d at 612 & n. 37, 615 (citing

evidence suggesting nondiscriminatory rva-

sons for the higher death penalty rate in

Florida cases involving white victims)

Adams has not proffered any evidence

that the death sentence in his case is the

product of intentional discrimination. The

Florida statute is unquestionably neutral! on

its face as to race and geography See

Spinkellink v. Wainwright, 578 F.2d at 614

In Spinkellink, we rejected a similar claim

of racia] inequity by a Florida death row

inmate who proffered statistical evidence of

a disparate impact but no convincing evi-

dence of intentiona! discrimination. The

Court stated

Mere conclusory allegations, as the peti-

tion makes here, such as that the death

penalty is being “administered arbitrarily

and discriminatorily to punish the killing

of white persons as opposed to black per-

7a

1450 709 FEDERAL REPORTER, 2d SERIES

sons” would not warrant an eviden-

tiary hearing

Id. at 614 n. 40; see also Smith v. Balkcom,

671 F.2d at 860. Because Adams was not

entitled to a hearing, he was not entitled to

appointed experts to assist him at a hear-

ing

Conclusion

We have carefully reviewed al! of the

arguments on appeal and al] of the points

ruled on by the district court. The district

court's denial of the writ of habeas corpus

is

AFFIRMED)

Sa

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

US. COU2T OF APPEALS

No. 82-5595 ELEVENT™ Cin CUIT

FILED

SEF 4 2 1983

Spencer D ivlercer

Clerk

Petitioner-Appellant, .

JAMES ADAMS,

versus

LOUIE L. WAINWRIGHT,

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion July 18 , 11 Cir., 1983 F.2d ).

{ September 12, 1983 )

Before RONEY and CLARK, Circuit Judges, and GIBSON*,Senior Circuit Jucce

PER IAM:

( ) The Petition for Rehearing is DENIED and no member of

this panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehetring en banc

(Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit

Rule 26), the Suggestion for Rehearing En Banc is DENIED.

) The Petition for Rehearing is DENIED and the Court having

\neen polled at the request of ohe of the members of Court and

(

a jority of the Circuit J who are in regular\ active ser-

vice not Revdeh. seeed in favor ofit (Rule 35, Federal Rules of

Appe

ing

ate Procedure; Eleventh Circuit Rule 26), the Suggestion

En is also DENIED.

\

Court in active service having requested

ation of this cause en banc, and a major-

ve service not haying voted in favor of

ED ‘

for

( ) member of

9a

*tion. Floyd R. Gibson, U.S Circuit Judge for

the Eighth Circuit, sitting by designation. og Aw

F.S. 1981 __SENTENCE Ch. 921

CHAPTER 921

SENTENCE

PENALTY.—Upon conviction or adjudication of

guilt of a defendant of « capital felony, the court shal!

conduct « separate sentencing proceeding to deter.

mine whether the defendant should be sentenced to

death or life imprisonment as authorized by s

775.082. The proceeding shall be conducted by the

trial judge before the trial jury as soon as practicable.

If, through impossibility or inability, the trial jury is

unable to reconvene for a hearing on the issue of pen-

alty, having determined the guilt of the accused, the

trial may summon «4 special juror or jurors as

provided in chapter 913 to determine the issue of the

imposition of the ity. If the trial jury has been

waived, or if the defendant pleaded guilty, the sen-

tencing proceeding shall be conducted before a jury

impaneled for that purpose, unless waived by the de

fendant. In the proceeding, evidence may be pres

ented as to any matter that the court deems relevant

to the nature of the crime and the character of the

detendant and shall include matters relating to any

of the aggravating or mitigating circumstances ertun-

erated in subsections (5) and (6) Any such evidence

which the court deems to have probative value may

be received, regardiess of its admissibility under the

exclusionary rules of evidence, provided the defen-

dant is accorded « fair opportunity to rebut any hear

say statements. However, this subsection shal! not be

construed to authorize the introduction of any ev:

dence secured in violation of the Constitution of the

United States or the Constitution of the State of

The state and the defendant or his counsel

shal! be permitted to present argument for or against

sentence f{ death

(2) ADVISORY SENTENCE BY THE

JURY —After hearing all the evidence, the jury shal!

deliberate and render an advisory sentence to the

court, based upon the foliowing matters

(a) Whether sufficsent aggravating circumstances

exist as enumerated in subsection (5),

or death

(3) FINDINGS IN SUPPORT OF SENTENCE

OF DEATH —Notwithstanding the recommendation

as to the fects

(oe) That sufficient circumstances en

ist as enumerated in subsec.. on (5). and

921.141 Sentence of death or life

sent for capital felonies; further to In each case

‘elermine senteace. — sentence the sup

(1) SEPARATE PROCEEDINGS ON ISSUE OF ported by specific written findings of fact based upon

19%

Ch. 921

SENTENCE

FS. 1981

the circumstances in subsections (5) and (6) and

upon the records of the trial and the sentencing pro-

ceedings. If the court does not make the findings re-

quiring the death sentence, the court shal! impose

sen‘ence of life imprisonment in accordance with s

775.082.

(4) REVIEW OF JUDGMENT AND SEN.

TENCE.—The judgment of conviction and sentence

of death shall be subject to automatic review by the

Supreme Court of Florida within 60 days after certi-

fication by the sentencing court of the entire record,

unless the time is extended for an additiona! period

not to exceed 30 days by the Supreme Court for good

cause shown. Such review by the Supreme Court

shall have priority over all other cases and shal! be

heard in accordance with rules promulgated by the

Supreme Court.

(5) AGGRAVATING CIRCUMSTANCES

— Aggravatin circumstances shall be

limited to the lettowing

(a) Tne capital felony was committed by a person

under sentence of imprisonment

(b) The defendant was previously convicted of

another capital felony or of « felony involving the use

or threat of violence to the person

(c) The defendant knowingly created a great risk

of death to many persons

id) The capital felony was committed while the

defendant was engaged, or was an accomplice. in the

commission of, of an attempt to commit, or fight af

ter committing of attempting to commit, any rob

bery, rape, arson, burglary. kidnapping. or aircra’: pi

racy of the unlawful throwing, placing. or discharying

of a destructive device or bomb

(e) The capital felony was committed for the pur

pose of svoiding or preventing a lawful arrest or ef

fecting an escape from custody

(f) The capital felony was committed for pecun:

ary gain.

ig) The capital felony was committed to disrupt

or hinder the lawful exercise of any governmental!

function of the enforcement of laws

th) The capital felony was especially heinous,

atrocious, of cruel.

(i) The capital felony was a homicide and was

committed in « cold, calculated, and premeditated

manner withowt any pretense of moral or legal! justifi

catimn

(6) MITIGATING CIRCUMSTANCES

Mitugauing shall be

pror

(>) The capital felony was commutted while the

dele’ dant was under the influence of extreme menta!

of emotronal disturbance

tc) The victom was & participant in the defen

dant s conduct of consented to the act

id) The defendant was an accomplice in the cap:

tal felony committed by another person and hu par

terpation wes relatively minor

(eo) The defendant acted under extreme duress or

unde: the substantia! domination of another person

(f) The capecity of the defendant to appreciate

the criminality of his conduct or to conform his con

duct to the requirements of law was substantially im

paired

(g) The age of the defendant at the time of the

crime.

HMetery - + ie ch 104 19 COL 1660 Supe SM 6

OLD eo Leh DT eo Oem TE ol em OTs Oe et

lla

ADAMS vy. STATE

Fla 765

Cie os, Pla, 4) Sw de 705

James ADAMS, Appellant.

‘

STATE of Florida, Appelice

No. 4450

Supreme Court of Plonmda

Dee 16, 1976

Rehearing Denied Feb) 14, 1977

Lae fe ndant was comvicte! in the Cireurt

Luew Vallace Sampk

J. of furst<legree murder and was sen

denced to death, and he appealed The Su

Court held that for second

fevony murder arcur

indertying feb

iourt, ™ Count)

pre fe bisatoality

tegre: miy when UP

miivewtual perpetrates Une

ny a* an accessory before the fact bul dees

engage im it. that (ne

not personal irta

court did not err hecause its instructions on

second degree murder dui not track Une

statute; and that, under the circumstances

the sentence of death was appropriat

A‘ firmed

Boyd, J.,

Hatchet, J

dissents d and file! ar f f

drease re ted

1. Homicide @ 14(1)

Under

mind is imm

ing during feiony

felony-r inter run state

teria! and even acewle nua! b

is murder

thought is supypotend ty Tek

constr

ried us

PSA && TsZit

manner ' rey

West's

rus

malice wv aN

eal Semen Fim

2. Homicide @ IN 1)

Language ) Saur f mur

tulalogres f ny i

fer proviswn eecepl as pros nh |

" 1) which nm fers to frst gre

ny -murce pros iste lammits « lialelat

second de yrret f. ony srcer to uecurt

when individual perjetrates underlying f

ony &* accessor) tm fore fact but cde

jersonally engage n it Wests PSA

- _

§ Tez OW 1, 3)

3. Homicide @ 16(1)

Under 1972 feluny-murder statute. in

divudual who personally kills another duriny

perpetration of atlempt to perya trate on

of enumerated frlones is guilty of first«te

gree murder, and in such circumssances

statutory echermw dows not allow for conve

ten of secoml<kegree muriler “

FSA § TH20K)1, 3)

4 Homicide G Wil)

Lowbly for forst egtee fekoms munk-+

extends to all of ye ry= lrator + cofeionm «ft

am petwonally presen! somes. as perpetrator

of underiying felony they are prineqe r

toommoc ele feiens-murder rw amd

principals combunes to make felon gener

rr spmetrsatyre for lethal acts of | of

Wests FSA § TRIO

l2a

766 Fia Ml SOUTHERN REPORTER

-d SERIES

Homicide o 2%9 m

T ‘

Tr , hom le prese »

er * .

*

4 per st .

y murder wh .

he perpetra r

P r

- a a’ rs re

4 re “as >

eler . -

ar

ra

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6 Homicide @ 16

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l3a

ADAMS

v. STATE Fla. 767

(Cite as, Fla, 341 So.2¢ 765

the person killed or any human being, or

when committed by a person engaged in

the perpetration of, or in the attempt to

perpetrate, any arson, rape! robbery, bur-

glary, kidnapping, aircraft piracy, or the

unlawful throwing, placing, or discharg-

ing of a destructive device or bomb, or

which resulted from the unlawful distri-

bution of heroin by a person over the age

of seventeen years when such drug is

proven to be the proximate cause of the

death of the user, shall be murder in the

first degree and shall constitute a capstal

felony. punishable as provided in § 775.-

Ox2

“(b) In all causes under this section, the

procedure set forth in ¥ 921 141 shall be

followed in order to determine sentence

of deatn or life imprisonment

“(2) When perpetrated by any act im-

minentis dangerous to another and es ine-

ing 4 depraved mind regardless of human

life, although without any premeditated

design to effect the death of any particu-

lar individual, or when committed in the

perpetration of, or in the attempt to

be rye trate, any arson, rape robbery, bur-

Biary, kidnapping, aircraft piracy, or the

unlawful throwing, placing, or discharg-

ing of a destructive device or bomb, ex-

cept as provided in subsection (1), it shall

be murder in the second degree and shal!

constitute a felony of the first degree,

punishable by imprisonment in the state

prison for life or for such term of years

as may be determined by the court.

“(3) When perpetrated without any de-

sign to effect death, by a person engaged

in the perpetration of, or in the attempt

to perpetrate, any felony other than ar-

son, Tape, robbery, burglary, kidnapping,

aircraft piracy, or the unlawful throwing,

placing, or discharging of a destructive

device or bomb, it shall be murder in the

third degree and shall constitute a felony

of the second degree, punishable as pro-

vided in § 775.082, § 775.083, or § 775-

om”

Specific instructions were not discussed at

the conference In actually charging the

Jury on second degree murder, the court

used language contained in proposed in.

structions drafted by the Standard Jury

Instruetions Committee to comply with the

raw death penalty statute. These instruc.

tions had not been submitted to or approved

by this Court. The instruction on secon:

degree murder given by the trial judge was

as follows

“Murder in the second degree is the

killing of a human being by the perpetra-

tion of an act imminently dangerous to

another and evincing a depraved mind

regardiess of human life, although «ith-

out @ premeditated design to effect the

death of any particular individual. and

not done in the perpetraiion of or in an

ailempt to perpetrate, any arson, ray,

robbery, burglary, kidnapping. aircraft

piracy, or the unlawful throwing. placiny:,

or discharging of a destructive device or

bomb” (Emphasis added)

After retiring to deliberate, the jury re-

quested re-instruction on the degrees of

murder At this point, beth the state anc

appellant moved that the instructions on

second degree murder be medlified to “mon

accurately track the statute.” The court

denied the motions and re-read to the jur)

all of the original instructions

Appellant contends that this instruction

constitules prejudicial error, asserting that

the wording of the instructions on second

and third degree murder bound the jury to

a verdict of murder in the first degree if

the jury found that Brown was kille! as a

part of a rubbery. This limitation of th:

Jury's options is not error. On the contrary,

that result is the very goal of the first

degree felony murder provision specified in

Section 782.041 a), Florida Statutes (1973)

{1} In its most basic form, the historic

felony murder rule mechanically defines a»

murder any homivide committed while

perpetrating or attempting a felony |)

Stands as an exception w the genera! ruk

that murder is homicide with the specif

intent of malice aforethought Under th

felony murder rule, state of mind is imma-

l4a

768 Fla

terial? Even an accidental killing during a

felony ts murder. The malice aforethought

is supplied by the felony? and in this man-

ner the rule is regarded as a constructive

malice device‘

Florida has always had some form of the

felony murder rule® In 1*92. Plorida’s fel-

ony murder rule was first enacted similar to

its present form® First degree murder was

defined to comprise not on!) killings dene

by premeditated desygn, but also those

“committed in the perpetration of. of in the

ultempt lo perpetrate, any arson, rape. rob-

ery, or burglar, ”? No significant change

was made in the felony murder provisior

until the 1972 revision

A homicide during one of the enumerated

felonies under the 1972 revision is deemed

first degree murder only when it is commit-

ted by,

; a person engaged in the

perpetration of, of in the attempt te

porpe trace ig

the felony The second degree murder pro

sisson has bee modified to include a felon,

murder provision. It includes the unlawful

killing of a person,

4 when committed in the

perpetration of, of im the attempt to

perpetrate, any afson, rape, robbery, kud-

napping. aircraft piracy. or the uniawfu!

throwing. placing. or discharging of «

destructive device or Lomb, except as pro-

vided in subsection (1) “=

In State + Dixon, 283 So.2d 1 (Fia.1973).

this Court noted the difference between

2. Mudel Penal Code. § 20! 2, Comments at 39

(Tent Draft No 9 1959)

3. See + x Sloan State. 70 Fla 163. 69 So

871 (1915)

4. Morns The Felon s Responsibility for the Le

thal Acts of Others. 1095 UPaLR 49. 59

(1956)

S. See Flalews 1822. § 1 at 53. § 24 at 145

Fia Laws 1524 § 11 at 208. Fla Laws 1832. Ch

55.9 1 at 63. and FlaLaws 1865, Ch 1637

Subch 3. 5 1. 2 at 63

6 Flalaws 1892. Ch 2377 94 at 773 76

341 SOUTHERN REPORTER, 2d SERIES

first deyree and second degree felony mur-

der;

“The obvieus intention of the Layista-

ture in making this change is to resuere ey

the distinction between principals in the

first of second degree on the one hand

and accessories before the fact on tix

other, in determining whether a party tw

a vwlent felony resulting in murder is

chars able with murder in the first de.

vtec or murder in the second depres

“ Id a ll

[2] We pointed out in Dnvon, supra, that

liability for secon! degree felony murder

occurs when the individual perpetrates thy

under|, ing felony as an aCeensors te for

the fact but does net personally enyage in

it. This limited scope of the second degree

felony murder provision is dictated by the

provision, “except a provided in sulmection

(1).° whieh refers to Section 782 0401), Flori.

da Statutes (1975)"

(3.4) We mold tnat under the 1972 hum).

cide statute an individual who personal),

kills another during Une pe rpetration of at

tempt lo perp. trate one of the enurm fated

felonies es guilty of first degree murder Ty

such circumstances, the statutory sehem

does not aliow for a conviction of second

degree murder Moroover, the felen’s hic.

bility for first degree murder extend. te al!

of his co-felons whe are personally present

As perpetrators of the underlying felony,

they are principals in the homicnte In

Florida, as in the majority of jurisdictions,

the felony murder rule and the law of prin.

Cipals combine to make a felon generally

responsible for the lethal acts of his co-fel-

7. Flalaws isy2 Ch 2380 at 774

&. Subsequent revision of second deurer feiony

murder provision suggests aise that perpetya

tea of a felomys would he lable for seed oh

gree murder uf during the felony there ce. urred

2 killing not committed by the felon or one of

his cofetons Thus if in resisting @ felony the

victim bilis an innocent bystander the fehon

would be susceptible to a charge of second

degree murder See Section 7K2 0405) Fhonidy

Statutes (1975)

15a

ADAMS +

on? Only if the felon is an accessory he-

fore the fact and oot personally present

does liability attach under the second de-

gree murder provision of the applicable

statule im the instant case

[S$] We conclude therefore that although

the trial judge's instructions on second de-

gree murder did not track the statute, un-

der the facts of this case it did not mussta‘c

the law If the jury believed that Janes

Adams fatally teat Estgur Brown in the

course of rebbing him, Section 782.04, Flori-

da Statutes (1973), required it to return «

verdict of murder in the first degree We

find no error in the charge Subsequent t

the trial m the instant case, this Cour

apprese! an appropriate stan lard jur n-

struc'won under the present status 1 nd it

should tn the instruction used rather thar

the .nstruction found not erroneous in this

Cius

Our final responsilality is to consider ‘ne

approprialeness of the death sentence in

order to determine independent!) whether

the death penalty) is warranted State +

, )

Dixon. supra

[6] The facts found by the trial judge

support the following aggravating circum-

stances (1) Adams committed the murder

whi uncer a sentence of imprixonment

specifcaliy while an escapee from the State

of Tennessee, where he had been cons icted

of rape and sentenced to ninety-nine sears

imprisonment, (2) Adams was previeusl)

convicted! of a felony involving the use or

threat of force to a victim, (3) Adams

committed the murder during the course of

a robbery. (4) The murder was especially

heinous, atrocious, an‘ cruel, the record re-

flecting that he murdered his victim by

beating him past the point of submission

and until his body was grossiy mangled

None of the statutory mitigating circum-

stances were shown to exist. The sule mit

gating factor offered at trial was that the

appellant is a human being

9 See Pope v State. M Fla 428 94 So 865

(1922) See generally. Note. A Survey of Fek

nv Murder 28 Temple LQ 453 (1955

Che os Pla 4) So de 85

We hold the sentence of death ss appro

pate, and affirm

It ws so ordered

OVERTON, C. J, and ADKINS, ENG-

LAND, SUNDBERG and KOUBERTS

(Retered) Jd, coneur

BOYD, J.. dissents with an opinwn

HATCHETT. J., dissents

BOYD. Justice, dissenting

In m pinion the Majority s allen

uingu.sh first and second degr:

urder dues not work for the simple reaver

es

that the distuneor . fel presen

statute itself, The statute provides that

when death results in connection 4th a

robbery a verdict of second degree municr

may te returned. Murder com

mitted the perpetration of, or in th

allompt to perpetrate, any arson, raja. 5

ber), burglary. kidnapping aircraft piracy

¢ ’

or the unlawful throwing, placing. or «:

charging of a destructive device or Lem

except a prov led in sulmertion (1) shu

be murder in the second deyres

The trial court specifieall; instructed Ute

jury that it could not find the defencar

guilty f second degree murder if it four

the crme to have been committed im ‘ty

perpetration of a rebbery = The instructier

effectively foreclosed’ the jury's right bt

find the defendant guilty of second degre:

murder, although it is well recognized that

yurnes may find persons guilty of lesser

included offenses in Flonda uncer Brown +

State, 36 Soi 377 (Fia 1968), and its

progeny up to the recent case of Stale

Terry, 336 So2d 65 (Pla i976) Further-

more, the jury was prohibited from giving a

“jury pardon.” a concept often recognized

by this Court, e g. Bailey ¥ State, Ds

So 2d 296 (Pia 1969)

In my opimon, the charge to the yur) was

fundamentally erroncous No person

10. For sury imstructions on murder appropriate

under the current statute. see birds Standard

Jury instrucvions in Crimina! Cases Homucicr

zd ed 1975)

l6a

770 Fla M1 SOUTHERN REPORTER, 24 SERIES

should be executed based upon a recor!

containing obvious reversible error, and it

would certainly be improper to classify this

error as harmless

It is significant that five of the twelve

jurors voted to recommad life imprison-

ment instead of death upon finding appel-

lant guilty of first degree murder Al-

though convinced the murder occurred in

the course of a robbery, they might have

held out for a conviction of second degrec

murder had the opportunity to do so not

been foreclosed by the trial court's charge

The gory and crue! nature of the crime

should not justify what I concene Ww ia

fundamental error, Human life is too pre-

cious to be extinguished by the State with-

out a legally proper tra

1 would reverse the judgment of the trial

court and orler a new trial

17a

ADAMS vy. STATE Fin 1205

The as, Fie 355 So le 1205

James ADAMS. Appellant

’

STALE of Florida, Appell

Ne 10

Sets etme € onset « } wha

Mark hr? is

Kehouring Denwl Apel °. pets

Feclew cog his comvrctien befor the Coa

cunt Court. St. Luce Counts, Wallace Sam

J defendant fied appheation for ren f

from 1pm ess Leen of death ~«ntenc The

yee

18a

1206 Fla

Supreme Court held that where imposition

of death sentence was based in part on

defendant's own testimony at sentencing

hearing that he had five prior convictions,

and trial court stated thai it did not vase its

decision on any informatign which v as not

known to defendant or his counse of ree-

ord, defendant's application for relief from

imposition of death sentence would be de-

need

Order according};

Hatchett, J., dissented

Criminal Law & 1208(1)

Where imposition of death sentence

“as bused in part on defendant's own testi-

mony at sentencing hearing that he hod

five prior convictions, and trial court stated

that it dad not base its decision or any

information which was not known te ve-

fermtant or his counsel ef record. defenit-

ants appheation for relief from IM pars. tion

of death sentence would he de nied

Ruhard L. Jorandbs. Public Defender

Kenneth J Scherer, Chef Asst. Public De-

fomter ard Lins J. Franke! and Cray S

Barnard. Asst Public Defenders, Wes:

Puim Beach. for appellant

Rowert 1. Shevin, Atty Gen amd Michae!

M Corin and George Ro Georguff, Asst

Attss Gen, Tallahassee, for appatioa

PER CURIAM

Subsequent to the decision of the Su-

preme Court of the United States, in Gari.

ners Florida, 430 US. 49. 97 SCt 1197.

“1 OL. Kad 2d 393 (1977), this Court entered its

orter on May 6. 1977, establishing @ proce-

dure whereby the trial yudge who imposed

ihe death sentence was directed to file a

respense stating whether he imposed the

wntence on the basis of consideratvon of

a7; information not known to appellant

Thee onter alse provided that BMS ajpyplica-

ten for pele? pursuant te the United States

Supreme Court's ruling in Ganiner + Plory-

da. supra, sbould te filed with this Court

within, Chirty (30) days after ihe trial judge

355 SOUTHERN REPORTER, 24 SERIES

had filed his response pursuan. te this

Court's directive

On May 12, 1977, the trial court filed its

Fesponse stating that in imposing the deat!

sentence it “did not have any informatior

whatsoever, either as listed herein or other-

wise which [the court] used as a

basis for consideration in imposing th:

death sentence which was not known to the

appellant and/or his counsel of record”

In his application for relief, appellant ar-

gue> that he has had neo pportunity to dens

or explain certain factual findings reli-d on

by the trial judge in his sentencing order

The onder, whieh set forth specific finding.

of fact on which the death sentence was

impesed, states in part

Ky his own admission the defendant

was previously convicted of crimes on at

least five occasions andl the further und.

puted evidence shows the defendant has a

record invelving crimes of violence

[Emphasis sujyviced |

Appeilast contends that he has net beer

convicted on five previous utcasions anil

that tne evidence before the trial court «ly!

net shew that he had teen convicted of

pret cfites inveiving Senence but that ti

had only one previous conviction for rae on

Tk theme OM sez

The admission of five previous orenes to

wrk the tral eourt referred on its» atene-

ing other was appa ilants nm Sputss during

Cfouss CNamination. In respemee te the Late

ation ky's question regarding hea man,

tome: fe had heen comicted of a crim:

aye dant stated “Mayte five or more, I

dor t know, something line that” (Ro G26)

The Court finds this appheation for telef

pursuant to Ganiner « Florala to ba with-

wut merit. Appellant complains of nthing

more than the use by the trial court of bi.

testimens, given ut trial in sentencing Ue

appellant Appellant had ample oppertuni-

Uy te explain or refute bi. own Lestemerns at

tral

Tt ts s+ ortlercd

OVERTON, © J. and ADKINS. boyy,

ENGLAND and KALI. JS. concur

HATCHETT, J. dissemts

19a

ADAMS v. STATE Fla 423

Cte as, Pla. 380 So.26 423

James ADAMS, Appellant,

v

STATE of Florida, Appellee.

No. 58576.

Supreme Court of Florida

Feb 8, 19%

The Circuit Court, St. Lucie County, (

Pfeiffer Trowbridge, J. denied motion for

postconviction relief, and movant appealed

The Supreme Court held that: (1) asserted

issues concerning prejudicial argument and

testimony could have been raised in prior

direct appeal and, hence. could not support

a collateral attack, and (2) fact that there

were four death sentences imposed during

four-year period in St. Lucie Count), to-

gether with conclusions drawn therefrom.

did not constitute a sufficient preliminary

factual basis to establish that death penalty

Was imposed in arbitrary, capricious ned

irrauienal manner

Mficred

1. Criminal Law =-99%(3)

Since asserted issues concerning prt ju-

Hea! argument by preceutor and .aflon

Matory testimuny by the state cwuld has:

been paises! in prict appeal from conviction

such mations would mt support a sul

quent collateral attach by way of petition

for pastewnviction relief 34 West's FSA

Rakes of Criminal Preeedure. ruk 3a

2 Criminal Law > 99~(17)

Posteonsiction claim that sentencing

process was required te be vouted becau~

of enue. recollection of awistant defen

counse! of an unrevorded conversaion with

the trial judge was Peyecterl, porticed erly

where there was ne proffer of spoiler cow

Statutory mitigating circumstances at or v-

nal Capital punishment trial 34 West's

FSA Rulex of Criminal Procedure, rus

3aAH)

3. Criminal Law @=641.13(7)

Defendant was noi denied effective «

sistance of counsel at sentencing phase on

Kround that counsel failed to properly in-

vestigate prior conviction and failed! to

present Listimeny concerning family life

and church involvement where recon! con-

tained testimony of defendant's wife, girl

frend amd defendant himself during guilt

and innecence phase which could have be 9

used to seriously impeach any such cunt: -

ions comeerning defendant’s character

USCAConst Amend €

4. Criminal Law @ 1208/1)

Pact that there were four death «+

tences imjpase! during four-year perix! in

St. Lucte County, together with conclusw os

drawn therefrom, did net omnthute a suf?;.

29a

424 Fla

cient preliminary factua! basis to establish

that death penalty was imposed in an arbi-

trary, capricious, and irrational manner

US.C.AConst Amend 14

Richard L. Jorandby, Public Defender

and Craig S. Barnard, Chief Asst Public

Defender, West Palm Beach, for appellant

Jim Smith, Atty Gen.. and A. S. John-

ston, Asst. Atty. Gen. Tallahassee, for ap-

ps lee

PER CURIAM

This is an appeal from a denia! of James

Adams’ motion for post-conviction relief un-

der Florida Rule of Criminal Procedure

3350 The appellant seeks a stay of execu-

tion pending a review of that proceeding by

this Court

This Court has afforded the appellart an

opportunity to fully present the issucs to

this Court, including oral argument For

the reasons expressed, we affirm the trial

court's denial of relief and deny the stay of

execution

This Court initially affirmed the appe!l-

lant’s conviction and sentence of death in

Adams v State, 341 So2d 765 (Fila 1976).

cert. denied, 434 US. 878, 98 SCt 232.

L.Ed 24 158 (1977) Subsequent to this af-

firmance, this Court issued a Gardacr order

to the trial court, requiring the disclosure of

any information used by the tra! judge in

sentencing which was not disclosed to ap-

pellant during the sentencing phase. Th«

tral judge responded that no undisclosed

information had been utilized in the sen-

tencing. Appellant then petitioned for re-

view in this Court, stating that the judge

had relied upon erroneous information in

sentencing. most particularly the statement

by appellant himself that he had been con-

victed of crimes on five prior occasions

Appellant alleged that even though there

had been no disclosure violation, the trial

judge's reliance upon the inaccurate infor-

mation violated due process standards as

stated in Gardner v Florida, 420 US 349,

97 S.Ct 1197, 51 L.Ed 2d 393 (1977). and

thus entitled appellant to a new sentencing

380 SOUTHERN REPORTER, 2d SERIES

hearing. This application for relicf was

denied. Adams v. State, 355 So2d 1205

(Fls.1978), cert. denied, 489 US 947, 99

SCt. 340, 58 L_Ed 2d 338 (1978)

In the insiant petition, appeliant first

contends that (a) there was inflammatory

testimony presented by the state, and argu-

ment propounded by the prosecutor, which

“ere prejudicial, (b) the sentencing judge

relied upon the fact that the appellant had

teen convicted five times, and (c) the ser-

tencing judge im an unrecorded conversa-

tion prohibited nonstatutory mitigating cir-

cumstances from being presented to the

jury We find these contentions to hx with-

oul merit

{1] The asserted issues concerning pre}-

udicial argument and testimony could have

been raised in the first appeal to this Court,

and these matters thus will not support a

collateral attack Spenkelink v. State, 350

So 2d (Fla 1977), cert. denied. 434 US

960, 98 SCt. 492, 54 L.Ed 2d 320 (1977),

Sullivan v State, 372 So.2d 938 (Fila 1979)

The issue concerning the reliance Ly the

trial judge upon the five previous convic-

tions testified to by tLe appellant was dis-

posed of in Adams + State, 355 So 2 1295

(Fia 1978). cert. demed, 439 US. 947, 99

S.Ct. 340, 58 L.Ed.2d 338 (1978)

{2} Finaliy, we reject the claim that the

sentencing process must be voided because

of a tenuous recollection of assistant de-

fense counse! of an unrecorded convei sation

with the trial judge, particularily when

there was no proffer of specific nonstatuto-

ry) mitigating circumstances at the origina!

trial We note that assistant defense coun-

sel initially was not even certain that the

conversation took place during this appe!-

lant’s tria

[3] in hix second point, appellant main-

tains that he was denied effective assist-

ance of counsel in the sentencing phase of

his trial |ecause his counsel failed to prop-

erly imvestiygate his prior convictions and

failed tu present testimony concerning his

family life and church involvement The

record contains testimony of appellant's

wife, hes gurl fmend, and the appellant him-

self during the guilt and innocence phaw

which could have been used to serwus!,

impeach any such contentions coneorning

appellant's character The appr iant testi-

fud of hes plasing cards and drin'ing for

four days, including the Sunday prior to the

murder. As previwusly stated, the apgal

lant personal, testified that he had 4 ree-

ord of fixe convictions.

State amd federal courts are engaged in

an cselving process of ceterm ming wha:

measure of competence shal) be de mand-<d

of atturnes> in criminal cams Me Varn +

Rivhardson, 87 US Ta, wi St ial, &

L Bat 2d Te STO) The Fifth Cireust Court

of Appeals requires that counse! provid

“reasenably effect. assistance.” Unite!

States + Fessell, SAL Fd W275, bets ea

Co Wie. The Eghth Circuit rm-juin

“customary skills and Aligesae tha a rea

wemably comp tent atterres wook! ,«rforn

under osmilar areumstanees To nies’

States) Raster, S89 F 2d ect, Gi (sth Cor

1976) The Third Cireu.t demands “the «

ere of the customary oh | and hr vw iert,.

wheh moemally prevails at the time ane

place ~ Mewes CL ttedd State ae

TA, Ts ed Coe T9TO) The sarin « tme o

ures to determine ie foctie asotance of

counsel are discus! evtemovel, on Tage

The Attempt te Impresc Crammal ih fer

Representation, 15 Am Cem LRev li, and

im Davis st Alshama, 506 F 24 1213 Sah C:

1979) We find that by exen the m

demanding standard. the apreliant has m4

demonstrate on the record made in the

trial court that there was ine ffectin« assist

ance of counsel

Further, in this proceeding the appeliar

ha: offered onl) concluser; statements te

an assistant ch fense counse! a> either peter

tial mitigating evelence or as cs uberes

which weuld ameliorate tne factor proved

in aggravation This ettorney adits be

was brought into the caus only as ce coun

sim a support capacity and he was fot

even present during the entire gurl-inms-

cence phase of the trial Appellant b..-

proffered no specific ev epee which be

clams should have heen presented i mits

gation irrespective of hes Lack of amy spe

cific proffer, it our view that the motges!

ing and ameliorating cx ndenee saggy sted on

appellant's allegatrens would not hi © a

fevted the semienee. amd was. in fut, 4

Fla 475

real, megitedd te a large extent by th

appa lant’. own testumeny during the guut

bitoni porte ef the tras

19] ber tes fend pent, the appetiant ar

ues that ne wos enproperly dened an op-

pertunt, for a hearing on the issue of

a hetiver the heath penalty i arbetror i. and

deerininateniy apohed in St. Luce Counts.

as exicereed ty the four death sentemes

imposed in that evunty durny the peronl

175 WIT We fied the mere fac that

there were four death sente ners tngeoad

domng the four-year poreed oa St Luew

tegeth> r oatth the comrlussens

fraan therefor ches not comstiute a suf

Counts.

foc temt pas crmarnees Loeteal beasts tee ent iabelist

tteat the shoal percety was cmgened nn. an

oro lars cape - ees ane) oe ational manner

lex oof the tren! jeuge & al fice

tel the me tan fee stay of excwntion of

ENGLAND) © DF. amd AUTKINS D057)

OVERTON SENPRERG ALDER CMA.

el MelQON ALD JD. comes

¥

JAMES ADAMS,

Petitioner

vs

LOUIE L. WALNWRIGHT, etc.,

Respondent.

THIS CAUSE has come befo

Writ of Habeas Corpus. Petitioner

first degree murder under Fla. Sta

UNITED STATES DISTRICT Courr

SOUTHERN DISTRICT OF Floris

CASE NO. 80-8041-CIV-.AG

re the Court upon a Petition for

» James Adams; was convicted of

t. § 732.04 for the unlawful killing

of Edgar Brown while Petitioner was enpared in or attempting to

perpetrate the felony of robbery. Peti:ioner was sentenced to death

and, after his state remedies were exinusted, the deat arrant was

sivned on February 8, 1980. By Order of February 9, 1950, this Court

stayed the Petitioner's execution perdins further Order the Court.

Petitioner raises five grounds for relief. First, Petitioner

argues that the imposition of the d penuity in this c« violates

the cighth and fourteenth amendments becuse it is based non-

Geliberate killing. Relying on the plurality opinion in ¢ ‘Ee Vv.

153 (1976), and

v. Ohio, 433 U.S. 586 (

Justi White's concurri:

1973) (plurality opin:

?

Petitionor asserts that the death penalty is a grossly di: riian

ate art excessive punishnent in a case such as his, it hi there

was nv ‘finding of celibe.:ateress. Assuming arguendo that ¢t eth

penaicy cay be constitutionally imposed only in cases involving a

deliver se killing, in this case the und-rlying felony suppl, the

nece intent elerentc.

Petitioner was convicted of th unlawful killi oo a taal

Pataca: 3 during the porpetration rubbery. Under F! hivg

th.s constitutes first derree murder uider the felony murii ic.

jie felony murder rule, codified in Fla. Stat. § 782.04, de. ; as

murder any homicide comuitted during the perpetration of or ¢!

attempt to commit a dangerous felony, including robbery. Although

23a

evidence of the defendant's state of mind need not be presented to

prove a case vf first degree murder when the felony murder r

the intent t» commit the crime is presumed from the underlyin,

premeditation is deemed proven by evidence of the accused's felonio

conduct. Wheeler v. State,

cert. denied, 440 U.S.

1097 (Fla. lst

362 So. 2d

924 (1979); Ables v. State, 338 So.2d 1995

DCA 1976), cert. denied,

ile ap)?

‘

Felony;

377, 379 (Fla. lst

DCA

As the Supreme Court of Florida stated in the earlicr proccc

of this case, the felony murder ru

stancs as an exception to the general rule that

murder is homicide with

malice aforethoug

state of min‘? is

killing during a felony

aforethought is supplic

manner the rule is

Ccevicc

Adams v tat. ~1 So.2d PF

878 (1977) ¢ Lnote nicted)

i63, 69 (i9T53.

Accordingly, Petiti

punishment {

The deliberat

cease if verron is

the evidence Petitioner's tria

in the rim death occurred di

The felony murder rule simply obv

d« fendan: ° te of mind. The (

a 7 e impositio

L t< tne ¢ i

ecirnt é ¢ ntn amenarmen!?

mer next argu.

the consciciics pecmuee wae precc

and wholly arbitrary, and did noi

$46 So.2?d 1247 (Fla. 977)

le

the specitic intent of

the felony murder rulk

Even an accidential

j trder. The mali

xy the felon ad in tl

I i con ti il

bi ; ) cer i » 45%

» « rt ® , . /

contention (

n-delit e kil

ne oP the i } ute

that the beat i: hat result

the per} i Oo 1 rob!

tel the nec of p

therefo ct Pot :

hh pe 1? thi

‘ en, | f

hi deat ’ H

used werk eg uli iwi

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24a

eighth and fourteenth amendments. Petitioner alleges eig! nt

ce?

fad

oy

of procedural error to suppor

es 3

Testimony was lici fr r Pectiti r

exam . 1 during the , = .

- - i 4 R ALLE st bo waee s .< pt . L . ‘ .

i . . - “aA = "Y y Dp .

retcicioner nad five prior convicti reCitioner ar

° ~~ : . i ;

testimony wa in error, that by Llowi this test t

- I~ “s +

Jury or the jucge considered a non-statutory aggravati f

2468

or relied on « roneou t sti ny ¢t it tatu r r t

factor he Court finds that ¢ if }

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have immediately sentenced the defendint are without merit. There

is no constitutional requirement that the trial judge oxpressly

find that the homicide was deliberate or thet he expressly state that

arpgravating circumstances were foun beyond a reasonable doubt. The

deliberatencss of the homicide is implied from the underlyiny felony.

Further, it can be assumed from the .aci that the trial judy gave

the jury proper instructions that the judye knew the lew. Cuontracy

to Petitioner's contention, the trial judge's use of the unc. rlyin;

felony as an aggravating circuistance in his findings of fac: will

not result in the death penalty bein; isposed in all felony murder

tut

cases; rather, the Florida death peniity statute requires th weighing

of ali mitigating and agoravating ciicu. tinees.

Finally, there is no prohid’tion against the jude sentencing

the defendant immediately upon receiviny: the ju y’s advisory serdict.

Tu the contrary, a defenliat has a rich: to speedy sentencin«. Juareze

Cusares v. United States. 496 F.2d 190, 192 (Sth Cir. 197%).

There is no reliable evidence in the record to su; “t

Petitioner's argument thit the tritl judge Limited the pa:ti ro

the presentation of statutory mitivatiny fuctor, only, is ...totion

of Lockett v. Ohio, 438 U.S. 586. ‘Tie judy tracked the Lin®..e

of the statute in chargin: the jury, an! did not instruct |! ivy

not to consider other nou-statutory sitivating tactors. initia ,

Petitiorer'’s counsel argucd at the sentencin, phase that t's tior

life should be spared because he is a huvin being, s factur

not lis-.d in the statute.

Petitioner also argues that in! larsatory remarks

by the ~-osecutor, and that Petitioner wis thereby denied ¢t} n°

to a faiv trial. At the ,uilt/innocence phe eo of the tril.

secute: . stented on the fact that tle set of the rape

Petit ion. is convicted of (4 Temdesoee - i white women

the Petit: «r was black. Ory one reference wis made te th?

and it Wao mrt repeated at ti ‘ sentencir ° ph

At the sentencing phase, the prosecy. oF alse poini

tha: the Petitioner was not from the community and that he bat bilby

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Florida on the basis of race, geography. and other arbitrary facters.

Petitioner also argues that he was denicd equal protection and che

opportunity to present these claims by the trial court’s reiusal to

granc him the funds necessary to prove his claim of arbitrary

application.

In Proftictt v. Florica, 4/5 U.>. 247, the Supreie C t

of the United States recognized that the procedure followed in

Florida in capital cases, including the guidance given ¢ the trial

judge by the death penalty statute, as well as the appellate revi

system, minimizes any risk that tie cou! penalty will b moon

arbitrarily or capriciously. Ie :

This argument was «a. sd und dispose

But, weellink Wai wrist .* 578 a 604 a he TC it

tated in Spirkellin ax if a st t proper iraw tatute,

uch as Florida does, which tie st foll , in dete n- which

uc fFendants r« ceive the eatn pen <<. a the rbit

capriciousness have been c lusive : ved. < rt r-

, as a maticr & «< ity , the seste

Le b le rved ¢ . Ss wil it st? <

sdu'y interferin ] t ") ; t ne r cord

support allesatio at truit | ition, and n t th

proce dures fol lowed by the state cour , tie CAs }

in auture, it is not witiin the provins if this Court t iA

evbstontively the sentencing decisio: sce Spinkellink, : ze

’

The Spinke! Link decision als

disposes of th» Lit ice

arpisn-.t that he was denicd equal pretectivun because the t- l court

worte.! - grant him the cund. nece: ry ta prove his csc sits

applic. tea of the death penslty. 7 (th Cireulit 41: : .

corel y allegations o° ‘pitrary acm tion of t?

penal: atute is not suf. .cient to ev \ ant an evic.

hearing. sche Petitioner +4 be able to soos come speci’

.

intencionil wr purpose fal racial discrimin

‘ts evidencian

td. at 614 n.40. Thus, it follows that if Petitioner

has not alleged sufficient facts to require an evidentiary hearing,

the trial court did not commit erreur in denying him the expenses to

gather and present such evidence to the court.

Petitioner further argues thet death by electrocution is

unconstitutional because it imposes unnecessary physical on!

psycholcegical torture, that the Florida death penalty statute fails

to give the jury proper guidance because it specifies no st odard

of proof for the overall weighing process, and that the aperovating

circumstances, as applied to Petitioner and in general, are un-

constitutionally vague and fail to adequately channel the sentencing

decision patterns of judges and jurics. These same armument. hav

been raised and rejected in prior decicions controlling, thi met.

See Spinkellink v. Wainwripghr, 578 } 2d 582, Glo (cleetrocu rm twt

unconstitutional means of exccution);, lrotfier v. Flori¢ca, 4 U.S

a2, 254-:8 (1976) (Florida statute si ficiently clear anid ; cia

" its directions t

and mitigating circwastances and the weighing process).

Petitioner’s fourth ground fo: relief is that } des

effective assistance of counsel at the ntencing phas t

proceedings. As the Fifth Circuit has staccd,

efilective courcel]l does not mean “errerless cor

and not counse! judged incffective by hindsich:,

but counsel reasonably likely to render and rs

reasonably cfiecctive assistance’... This nec

“involves an inquiry into the actual performance «

counsel in concucting the defeuse ... based on t

totality of the circumstances and the entire re. >:

Beave ‘. ._ Kalkcon, 636 F.2d 114, 115 (oth Gis. 1981) fe!

omit ‘ppiying this standard, and n ting the acts of

counse. «22 Petitioner points to as evicence of inclfeetiv t-

ance of ...nsel, the Court fimis that only on: i Petition--*: ti

merits any discussion at len: .1, to wit, the irial counse! i>

to adcyvately investigate or present any eviderce in mitipat ion

the juc and jury with regurd to t! ravot ing

-P

the sentencins phase.

During the sentencing phase, Petitioner's counsel in

that he had no evidence. His closing argument consisted of the

following: "I find it necessary to ask for you to consider tha:

save [the Petitioner's] life, in spite of all this [the evidenc

.

presented by the state) and let this min live, for no other ri

than that he is a man.” Trial Transcript at 1175, 1180. Perici

sented during the sentencing phase. For example, Petitioner

to his family background in rural Tennessee, his lack of edveati

and his active involvement in th. Baptist church.

In lLishe t five t ’ ct e t bu

ti ch fail t ‘ t thi “vi c wetiatu

; id tiecc ‘ Bs cé< ‘ Tra ce a

mot to present thi | cc may +t hea ba ;

Leon ¢ 1c We t ‘ ace ti Tate ;

yresentec More Gamari charwtc in rebutca)

+ retatio ase C4 tii ; id t ;

Btaiec cuuld have , out is t vet

‘ ere sepat : avse of hi Lionship wi !

1 gi Even tt sh another att “ ny have pres

‘ iG ic Or Gay h d 3 ditfer,. ' ac 1] ueci

be conciuded that Petitioner's cou: Ll was incifecctive. ih

v. Bets, 3354 F.2d 693, "06 (Sth Cir. 19

Petitioner's final grounds fur relief is ba: .o

Flor’. “spreme Court's receipt of cx porte information or

Petits: > in its review of his appeal. Petitioner arpu at

Supse « court’s practice of request i | receiving this i:co

witt ; Sice to cn Petitioner, ¢ im due pres

ecifeci.-s assistance of counsel, th: ; »€ confrint

subjects sim to erucl and unusual puais’..nm’ and to coms!

incriminaiion, in violation of the fourtecnt’: amendment and

incorporate! fpuarantees.

argues that evidence in mitigation could and should have been pri

3

*

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On September i> 1980, P« ; er, aiong Wit: :

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twenty-one other death-sentenced appellants, fiied an : hicatior

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