# Appendix — ADAMS v. WAINWRIGHT (No. 83-5701) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1695%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 ## Text | 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 ) 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 eler . - ar ra ‘ \ al 6 Homicide @ 16 “ a x P = . " x ue " a” a “ “4 a ‘ \ : 7 : : ™“ : \ } t * 4 \ ine r * * ‘ ; a * ; A 4 5 . x * 4 js “ ‘ r ‘ b Ay 7 ‘ ” r * ‘a - ~ ‘ “4 Vv ‘ + a Pox ‘ xy * 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- 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 , » * | , w . \ - Ca a «i 4 van 9 there | C i t ; , , . > , i * 4 tate l ly t t } . ‘ a | i ; racnK tn yt ; *} *?> C ‘ , , ali t r = t ° t the , ‘ ti ; , ‘ one ° 1 na z ; i i j ~* d = i b pported : j Poot ! : bi } t i ed int é . , : ; IME Ju > - t 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 . 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 : 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 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 * ™ - . . 1980, P« ; er, aiong Wit: : ; . ~ . ’ > ; - . twenty-one other death-sentenced appellants, fiied an : hicatior Pom ff inarw Bel nA ‘ 1} for Extraordinary Relief and Periti writ of Ha in the Supreme Court of Florida based me prour . bh Se — a . - a ‘ ae . a= eet . ‘ x. ~ - * . . : t« ts ‘ Seti . ProwT . im’ i j “ A { ati ;Or writ f certiorari + ' sade in ¢ re t ted Stat By Or: Auj be ta --* cf ing . tf ss x . . . — : if Su “ . . ] , . ’ . t . } es iva : . ta +t ‘ ° * > 4 | . — ‘ ° ** trial j . ‘ > a ‘ + r , ; ° , ’ 2 I ericnt re : . > * . ‘ > ’ . ; S « . . 7. ’ r% c ee). i cView,. ‘ : : e ity th be ' ad with 1 . . _ ° ; *> ss . - » pep rtionsaiit Ucraak . y > 7 7) " - tt 34 G- in ives Wwe emi ; eeVval ti t ‘ Best Copy Aveitehie 3le ~ re ~ ps . s a ~ ~ - oa) . ‘ ~- . > ‘ ~ . ci Re te Srown, Sat 132 M ‘ t C . ante! Re kh ° statec }i at ii ja t plat —— sar « S r , 1 5¢ “ - i ‘ , } ‘ © at > ‘ » « 9 ° F al /7™ ‘ » a ‘ i . \ —<« a ' )* U Best Cooy Avartatte 32a 10 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1695%3A2. Public record. Not legal advice.