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

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IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 82-5595

JAMES ADAMS,

Petitioner-Appellant,

Vv.

LOUIE L. WAINWRIGHT, Secretary,

Florida Department of Corrections,

Respondent-Appellee.

On Appeal from the United States District Court

For the Southern District of Florida

REPLY BRIEF FOR PETITIONER-APPELLANT

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Street - 13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

TATJANA OSTAPOFF

Assistant Public Defender

RICHARD H. BURR, III

Of Counsel

Attornevs for Petitioner-Apnellant

TABLE OF CONTENTS

PAGE

STATEMENT OF THE LOSER os CUS SSEURESES CO bb CE RHOCCEreo®E 1-2

ARGUMENT

I. PETITIONER WAS DEPRIVED OF THE EFFECTIVE

ASSISTANCE OF COUNSEL AT THE SENTENCING

PHASE OF HIS CAPITAL PROSECUTION 3-5

II. EXECUTION OF THE DEATH SENTENCE IMPOSED

AGAINST MR. ADAMS IS GROSSLY DISPROPOR-

TIONATE, EXCESSIVE, AND STANDARDLESS

WHERE THE KILLING WAS NOT DELIBERATE

BUT COMMITTED DURING A FELONY, AND

WHERE AN AGGRAVATING CIRCUMSTANCE

WAS APPLIED WHICH FAILS TO DIFFERENTIATE

THIS CASE FROM ANY OTHER FELONY-MURDER 9-11

Itt. THE AGGRAVATING CIRCUMSTANCES CONSIDERED

BY THE JURY AND JUDGE FAILED TO CHANNEL

THEIR SENTENCING DISCRETION AS REQUIRED

BY THE EIGHTH AND FOURTEENTH AMENDMENTS 12-15

IV. THE FLORIDA SUPREME COURT'S HARMLESS ERROR

RULE, CONCERNING THE SENTENCER'S RELIANCE

UPON LEGALLY IMPROPER AGGRAVATING CIRCUM-

STANCES, DEPRIVED PETITIONER AND DEPRIVES

OTHER CAPITAL DEFENDANTS OF RIGHTS NECESSARY

TO THE CONSTITUTIONAL IMPOSITION OF THE

DEATH PENALTY. 15-19

V. THE TRIAL COURT'S RULING CONCERNING THE

SCOPE OF ADMISSIBLE MITIGATING EVIDENCE

ALONG WITH ITS INSTRUCTIONS TO THE JURY,

IMPERMISSIBLY RESTRICTED THE CONSIDERATION

OF MITIGATING CIRCUMSTANCES IN THE TRIAL

COURT. 20-22

VI. THE FLORIDA SUPREME COURT'S EX PARTE CON-

SIDERATION OF EXTRA-RECORD PSYCHIATRIC,

PSYCHOLOGICAL AND CORRECTIONAL REPORTS

IN PETITIONER'S CASE AND OTHER PENDING

APPEALS VIOLATED PETITIONER'S CONSTITU-

TIONAL RIGHTS. 22

VII. PETITIONER WAS DENIED EQUAL PROTECTION AND

DUE PROCESS BY THE RESOLUTION OF HIS CLAIM

CONCERNING THE ARBITRARY APPLICATION

OF THE DEATH PENALTY WITHOUT FIRST PRO-

VIDING THE EXPERT ASSISTANCE NECESSARY

FOR THE FULL AND FAIR CONSIDERATION OF

THIS CLAIM. 22-23

CERTIFICATE OF SERVICE. 6c édkmOed pak seek siwes San bbsnd 24

~ia

TABLE OF AUTHORITIES CITED

Cases Page

Adams v. State, 341 So.2d 765 (Fla. 1977) ..ccccccceces 10,17

Adams v. State, 380 So.2d 421 (Fla. 1980) ............. 8

Adams v. State, 380 So.2d 423 (Fla. 1980) ............. 21

Aldridge v. State, 351 So.2d 942 (Fla. 1977) .......... 17

Arango v. State, 411 So.2d 172 (Pla. 1982) ............ 12,13

Armstrong v. State, 399 So.2d 953 (Fla. 1981) ......... 17

Beavers v. Balkcom, 636 F.2d 114 (5th Cir. 1981) ...... 4

Blackledge v. Allison, 431 U.S. 63 (1967) ............. 23

Blair v. State, 406 So.2d 1103 (Fla. 1981) .....-...... 18

Bollender v. State, So.2d , 1982 F.L.W., $.CO.4990

rn rey Si SERPs. ins o cee DAES ES 0 aoe eh eee eS he 17

nee eae City of Pritchard, 661 F.2d 1296 (11th Cir. .

OL 55 a rn ee are errr ares ee ee he ee ed oe

Breedlove v. State, 413 So.2d 1 (Fla. 1982) ........... i eS

Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967) ......... 4

Clark v. State, 379 So.2d 97 (Fla. 1979) wcccccccsccees 17

Cooper v. State, 336 So.2d 1133 (Fla. 1976) ........... 17

Davis v. Alabama, 596 F.2d 1214 (Sth Cir. 1979) ....... 4

Demps v. State, 395 So.2d 501 (Fla. 1981) ...-cceceeees 17

Dobbert v. State, 375 So.2d 1069 (Pla. 1979) ...<...... 17

Eddings v. Oklahoma, _U.S.__, 102 S.Ct. 869 (1982) ...20

Elledgev. State, 346 So.2d 998 (Fla. 1977) .......--.-. -10,18

Enmund v. State, 399 So.2d 1362 (Fla. 1981) ........... 17

Ferguson v. State, 417 So.2d 631 (Fla. 1982) .......... 18

Ferguson v. State, 417 So.2d 639 (Fla. 1982) ........-. 18

Fleming v. State, 374 So.2d 954 (Fla. 1979) .......-+.- 18

- -ii-

Cases Page

Ford v. State, 374 So.2d 496 (Fla. 1979) ....++e++++---17

Francois v. State, 407 So.2d 885 (Pla. 1982) .......... 17

Gafford v. State, 377 So.2d 333 (Fla. 1980) .........-. 18

Gaines v. Hopper, 575 F.2d 1147 (5th Cir. 1978) ....... 4

Gardner v. Florida, 430 U.S. 349 (1977) wscccccccscsecs 20

Gibson v. State, 351 So.2d 948 (Pla. 1977) w.ccsccccces 17

Glenn v. State, 338 So.2d 263 (Fla. 2nd DCA 1976) ..... 6

Godfrey v. Georgia, 446 U.S. 420 (1980) ............... 11

Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1962) ..ccccsess 3,4

Gregg v. Georgia, 428 U.S. 153 (1976) ....ccccccccccees 20

Halliwell v. State, 323 So.2@ 557 (Filia. 19735} sicceses ei3

Henry v. Wainwright, 686 F.2d 311 (5th Cir. 1982) ..... 9,10,19

Hicks v. State, 336 So.2d 1244 (Fla. 4th DCA 1976) ....6

Huckaby v. State, 343 So.2d 29 (Pla. 1977} acceso co ei

Jackson v. State, 359 So.2d 1190 (Pia. F978) cecoscsses 17

Johnson v. State, 393 So.2d 1069 (Fla. 1980) ..... veoecont

Lewis v¥. State, 377 So.20 640 (Pia. 29660) wsceteoceviees 18

Lloyd v. State, 346 So.2d 1075 (Fla. 2nd DCA 1977) ....6

Lockett v. Ohio, 438 U.S. 566. 4197S) ok cc cwwis cre nes wwe 20

Lucas v. State, 376 So.24 1149 (Pia. L978) scetencerves 18

Maggard v. State, 399 So.2d 973 (Fla. 1981) ........ <i

Menendez v. State, 368 So.2d 1279 (Fla. 1979) ......... 18

Messer v. State, 403 So.2d 341 (Fla. 1981) ....... sovessl

Mikenas v. State, 367 So.2d 606 (Fla. 1979) ......-e--. 18

Miller v. State, 373 So.2d 882 (Pla. 1979) ....ccceoea 18

“ili-

Cases Page

pamee: ¥. State, 390 Go.2d 332: {Fin 2908) wcscctacbiccéawct sa 18

Moody v. State, 418 S0.2d 989 (Fla. 1982} wccscccccccccccsess 18

Palmes v. State, 397 So0.2d 648 (Fla. 1981) .ccccccccccccccccelh?

Peek v. State, 395 S0O.2d 492 (Pla. 1981) cesccccccccccceces ool?

Perry v. State, 395 So.2d 170 (Fla. 981) .scccves e¥escotewene

Presnell v. Georgia, 439 U.S. 14 (1978) ...... sbsetau were ee 15

Proctitt v. Florida, $26 U.S. a262 (2976). cwcocecesntocesedseenueee

Proffitt v. Wainwright, 685 F.2d 1227 (lith Cir. 1982) ..... mS

Provence v. State, 337 So.2d 783 (Fla. 1976) cccccccccccecsee 13

Raulerson v. State, __So.2d__—ss« 1982 F.L.W., S.C.O.

376 (Pla. August 26, 1982) cecccccccdveocece corecccccsenecs 17

Riley v. State, 366 So.24 19 (Filia. 1979) cocceccsanevesseevr 18

Scott v. State, 411 So.2d 866 (Fla. 1982) ...... oe ccccccccns 12,13

Saraner ¥.. State, 386 80.26 Sade (Pid... £900) ccsedoetscntevednu 17

Simmons v. State, 419 So.2d 316 (Fla. 1982) wccwcsvccccssece 12,13

Sireci vy. State, 399 So.26. 964 (Fide 2961) scp endetcscoctineay

Smith v. Balkcom, 660 F.2d 573 (5th Cir. 1981) ............. 23

Smith v. State, 407 So.2d 894 (Fla. 1982) ...-..c-. oes hee sent

Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978) ....22

Zant,

446 (5th Cir.

Stephens v.

648 F.2d 1981)

Straight v. State, 397 So.2d 903

Sumner v. Mata, 449 U.S. (1980)

Tafero v. State,

Tedder v. State,

631 F.2d 397 (5th Cir.

403 So.2d 355 (Fla.

322 So.2d 908 (Fla.

1980) modified

o bere Dee biebet eeu soe ees tae ete

Kpveb oseeeedsewes

(Fla. 1981)

64 hve b ¥o 004 hive teotws cee

Peer ee ee Pe eee es

1981)

até dwtied eased baleen

1975)

United States v. Baynes, 687 F.2d 659 (3d Cir. 1982) .....-.5

Wainwright v. Sykes, 433 U.S. 72

-iv-

(1967) 06 ceboeSeecéenetéaunnnee

Cases Page

Washington v. State, 362 So.2d 658 (Fla. 1978) ....... 17

Washington v. Strickland, 673 F.2d 879 (5th Cir. 1982)4

White v. State, 403 So.2d 331 (Fla. 1981) ............ 17

Williams v. State, 386 So.2d 538 (Fila. 1980) ......... 18

Zant v. Stephens, _U.S.__, 102 S.Ct. 1855, 72 L.Ed.2d

222 (1982) sovcoce ee re rer ee ee eee ee ll

-V-

STATEMENT OF THE ISSUES

l. Whether Petitioner was deprived of the reasonably

effective assistance of counsel at his capital sentencing hearing,

thus reguiring the setting aside of his death sentence.

2. Whether Petitioner's death sentence is grossly

disproportionate, excessive, and the product of unreliable

proceedings, since it was imposed for a non-premeditated homicide

committed during the commission of a felony, which was in-

distinguishable from any other felony murder.

3. Whether Petitioner's death sentence is the product

of unreliable proceedings, since it was imposed pursuant, in

part, to the jury's and trial judge’s consideration of legally

improper aqqravating circumstances.

4. Whether Petitioner and other capital defendants in

Tlorida have been deprived of critical Eighth and Fourteenth

Amendment rights by the Florida Supreme Court's harmless error

rule concerning the sentencer's consideration of and reliance

upon legally improper aggravating circumstances.

5. Whether Petitioner was deprived of his right to an

individualized sentence determination by the trial court's

exclusion of evidence of non-statutory mitigating circumstances

and instructions to the jury precluding the consideration of

non-statutory mitigating circumstances.

6. Whether Petitioner's constitutional rights were

violated by the Florida Supreme Court's ex parte consideration

of extra-record psychiatric, psychological, and correctional

reports in his and others' pending capital appeals.

ole

7. Whether Petitioner was deprived of equal protection

and due process by the resolution of his claim concerning the

arbitrary application of the death penalty without first providing

the expert assistance necessary for the full and fair considera-

tion of this claim.

ARGUMENT

I. PETITIONER WAS DEPRIVED OF THE EFFECTIVE

ASSISTANCE OF COUNSEL AT THE SENTENCING

PHASE OF HIS CAPITAL PROSECUTION.

The State magnanimously concedes that it "does not materially

disagree" with the well-established standards for assessing the

ineffective assistance of counsel as set forth in Mr. Adams'

Opening brief, but then adds a novel test, announced in Gray v.

Lucas, 677 F.2d 1086 (5th Cir. 1982), that a defendant must show

that knowledge of any wiinvestigated evidence would have altered

defense counsel's strategy in order to prevail on a claim that

counsel's failure to ivestigate prevented him from making informed

tactical choices. R.Br. 155° But this test is, of course, not

binding on this Court, since Gray was decided by the present Fifth

Circuit Court of Appeals after creation of this Court for the Elev-

enth Circuit. Only those cases decided by the Fifth Circuit prior

to the split in the Court are treated as controlling precedent of

this Court. Bonner v. City of Pritchard, 661 F.2d 1206 (llth Cir.

1981).

Even more fundamentally, however, the rule stated in Gray is

not one with any firmly rooted antecedent in the law, but rather

amounts to an aberration, inconsistent with precedent and policies

in Sixth Amendment jurisprudence. In particular, Gray's apparent

conclusion that a decision as to strategy can precede and even

limit counsel's responsibility to conduct an independent and thorough

lreferences to the briefs submitted by the parties herein

will be designated as follows: .

"Pet. Br.” Petitioner's initial brief

"R. Br.” Respondent's answer brief

-3-

pre-trial investigation flies in the face of legal principles

firmly established in, e.g., Gaines v, Hopper, 575 F.2d 1147,

1149-1150 (5th Cir. 1978); Washington v. Strickland, 673 F.2d

879, 892 (Sth Cir. 1982), reh. en banc granted F.2d (1982);

Beavers v. Balkcom, 636 F.2d 114, 116 (Sth Cir. 1981); Davis v.

Alabama _, 596 F.2d 1214, 1220-1221 (5th Cir. 1979), vacated as

moot, 446 U.S. 903 (1980). As these cases recognize, just as "a

purported trial without adequate oreparation amounts to no trial

at all,” Brooks v. Texas, 381 F.2d 619, 624 (Sth Cir. 1967), so

a purported strategy without adequate investigation of the

necessary facts to supporta strategic choice amounts to no

strategy at all. Indeed, the above cases reflect a long-standing

skepticism that truly competent counsel could ever reach an

informed decision without gathering the facts required to tell

the attorney how best to pursue the obligations of an advocate.

In addition, Gray's test of prejudice, supra , 677 F.2d at

1093, substitutes a subjective standard of inguiry into counsel's

thought process for the objective test which has prevailed in

this Circuit since Davis v. Alabama, supra, which requires

an examination of the Specific and concrete evidence that

an investigation would have uncovered and a determination of

whether that evidence would have been helpful to the defense. The

Gray standard, on the other hand, would direct the federal courts

into the murky and speculative area of counsel's mental processes:

"the court would have to put itself in the place of an attorney

who was better informed by a client who was better advised, and

decide what differnt decisions that attorney would have made. This

will often be a hopelessly intrictate task." Davis v. Alabama,

supra, 596 F.2d at 1223, see also Washington v. Strickland, supra,

at 901-902.

Enunciating a standard both more capable of consistent

administration and more in accordance with the line of cases

cited, supra, is the decision of the Third Circuit Court of Appeals

in United States v. Baynes, 687 F.2d 659 (3d Cir. 1982). 2

In that case, defense counsel failed to refer to or make use of a

voice exemplar, although the only evidence of his client's guilt

was a twelve-word recorded telephone conversation in which he

allegedly participated. The appellate court noted,

"In this case, an avenue that conceivably

might have led to the exoneration of the

defendant was not explored by trial counsel;

no attempt was made to compare the voice exemplar

with the intercepted tape. To be sure, had such

a comparison been made, [the defendant's] attorney

might well have decided as a matter of trial

strategy not to refer to the voice exemplar at

trial. ...Such a decision on the part of trial

counsel properly could have been made, however,

cnly after a careful and comprehensive comparison

of the two recordings had been conducted." Id. at

666 (emphasis original.)

Thus whether or not an attorney has appropriately made tactical

trial decisions will not even be addressed until it has first been

established that he had the necessary information to make such a

decision as a result of his adequate investigation of the case.

Baynes is also instructive with respect to the State's main

argument that Mr. Adams did not, at the State post-conviction

hearing below, present sufficient competent evidence to support his

claims of ineffective assistance. R.Br. 13, 18, 20. The Baynes

court observed, regarding the focus of proof in such cases that

"To prevail on this appeal, [the defendant] need

not prove that it was not his voice on the

intercepted recording; instead he need only show

that his trial attorney's ‘exploration of the

voice exemplar issue might have led to a

viable defense and a verdict favorable to

{him]' [Citations omitted]." Id. at 671.

(emphasis original)

Pee,

In the present case, it was not and could not have been Mr.

Adams’ obligation, at the post-conviction hearing, to litigate

anew, as if in a penalty phase hearing, the approrpiateness or

inappropriateness of the death sentence imposed against him.

That was simply not the question before the trial judge at that

time. Instead, the trial judge was being asked to determine whether

defense counsel had adequately investigated the factual matters

available to him so that he could make an informed decision as to

how to proceed at the sentencing phase. Viewed in this light, there

can be no question that Mr. Wilkinson, Mr. Adams' support counsel,

was entirely competent to testify as to the facts within his own

direct knowledge: that is, what investigation, if any, was actually

performed by lead counsel, Mr. Schopp, and what information Mr.

Wilkinson was readily able to discover in his own investigation made

after trial and sentencing. Mr. Wilkinson testified fully regarding

the results of his own exploration of the mitigation in the present

case, and, to say the least, they were not fruitless. Thus, Mr.

Adams successfully showed that information existed which could

and should have been investigated prior to Mr. Adams' sentencing,

since there is no question that it was relevant thereto, but. that

no such investigation was undertaken. He, therefore, met his burden

of showing that trial counsel did not render “reasonably effective

assistance of counsel."

Similarly unfounded is the State's attempt to explain the

rousing closing argument by Mr. Schopp as being "aimed at having the

2even less merit can attach to the State's contention that the

failure to investigate Mr. Adams’ prior uncounselled convictions was

harmless, since such convictions can be considered at sentencing.

R.Br. 19. Such a contention has been specifically rejected in Florida,

Lloyd v. State,. 346 So.2a@ 1075(Fla. 2d DCA 1977); Glenn v. State, 338

So.2a 263 (Fla. 2d DCA 1976); Hicks v. State, 336 So.2a 1244 (Fla.

4th DCA 1976), which controls the evidentiary parameters of the

sentencing proceeding in the instant case.

~6=

jury view the death penalty as an uncivilized ultimate act which

should not be tolerated against other human beings." R.Br. 15.

Not only does this characterization ignore that portion of defense

counsel's argument wherein he conceded that "the Florida legislature

has declared in its infinite wisdom that the death penalty is a

proper judgment in some cases.” (@ 11797 It also ignores that this

jury had been death qualified: each juror sitting on this case

had affirmed that he could recommend a death sentence, thus rendering

defense counsel's "argument", as the State interprets it, rejected

before it was made.

The State's creative manipulation of the record to support its

argument in this appeal does not end here, however. The State

further relies for affirmance of the district court's order below on

the fact that lead trial counsel, Mr. Schopp, did not himself testify.

R.Br. 12, 20. In addressing this position, it is important to focus

on the actual legal issue before the trial court at the time of the

hearing on Mr. Adams' motion for post-conviction relief. By

urging that Mr. Adams was fatally remiss in not calling this witness

to testify, the State completely ignores the essentially antagonistic

relationship now existing between Mr. Adams and his erstwhile counsel..

Mr. Adams is, after all, alleging that his trial attorney did not

perform the duties required of him. The natural response of counsel

against whom such a charge is made will very likely be to seek to

justify—even where no justification is legally possible—his actions

and thus try to protect his professional standing. It is because of

3References to the record will be pursuant to the same

abbreviations set forth in Mr. Adams' opening brief at footnote

this inherent conflict that counsel other than Mr. Adams' trial

counsel was appointed to represent Mr. Adams in the vost-conviction

proceeding. Adams v. State, 380 So.2d 421 (Fla. 1980). And it

is because of the adverse relationship created by the allegation of

ineffective assistance that it is ordinarily the State, and not the

defendant, who calls trial counsel to defend himself, once the

defendant has proven through competent evidence that trial counsel

was, in fact, derelict, as in the instant case. This was never, of

course, done in the present case, so that the State's suggestion that,

"Perhaps no proof was adduced because there is no such proof,”

R.Br. 20, tells more strongly not against Mr. Adams' position, but

against its own suggestion, unsupported by anything other than sheer

speculation and an unacceptably strained reading of the record, that

trial counsel made a "tactical decision" to give up at the penalty

phase.

In short, there is not, as the State appears to helieve, any

presumption that a trial attorney's deficiencies are always the

result of strategic considerations, rather than ignorance. Instead,

that a legitimate basis for counsel's action and/or inaction exists

is a matter which it is incumbent upon the State to show. Conversely,.

it cannot conceivably be the duty of a defendant to call a witness

in order to elicit adverse and self-serving statements which the

defendant disputes but is precluded from testing through cross-

examination. Our adversary system of justice simply does not allow

for such a Catch 22 situation. Consequently, Mr. Adams has establish-

ed the ineffectiveness of the representation afforded him by trial

counsel, and the State has totally failed to rebut this showing in

any way, either below or before this Court.

II. EXECUTION OF THE DEATH SENTENCE IMPOSED

AGAINST MR. ADAMS IS GROSSLY DISPROPOR-

TIONATE, EXCESSIVE, AND STANDARDLESS

WHERE THE KILLING WAS NOT DELIBERATE

BUT COMMITTED DURING A FELONY, AND

WHERE AN AGGRAVATING CIRCUMSTANCE

WAS APPLIED WHICH FAILS TO DIFFERENTIATE

THIS CASE FROM ANY OTHER FELONY-MURDER.

The State contends in response to Mr. Adams' complaint

herein, that Wainwright v. Sykes, 433 U.S. 72 (1977) precludes

this Court's review of the issue. R.Br. 24. This contention

is without merit: the impropriety of Mr. Adams' death sentence

for an untentional killing during the course of a felony was

specifically raised in the Second Supplemental Brief filed in

his behalf on direct appeal to the Florida Supreme Court. The

State chose not to respond to that issue then, and it certainly

never argued that the issue was waived until this case arrived

at the federal district court. Moreover, the Florida Supreme

Court rejected this issue on its merits by its opinion affirming

Mr. Adams" conviction and death sentence.

The instant case therefore falls within the parmeters

of Henry v. Wainwright, 686 F.2d 3l1l (5th Cit. 1982) (Unit B)

(on remand). In that case, this Court considered, pursuant to

the Supreme Court's remand, whether a sentencing issue in a

death penalty case had been waived in the Florida state courts,

thus precluding federal review. Henry concluded that the issue

was not waived, even if the defendant's objection below was

inadequate, strictly speaking, to preserve the issue. this

holding was in turn based on a finding that the Florida appellate

court considered the issue on the merits, ignoring any procedural

default which might have existed. And,

"If Florida dealt with the merits of

Henry's objection, whether or not there

was a procedural default at trial under

state law, then a federal habeas corpus

court must also determine the merits

of the claim. [Citations omitted.]”

Id. at 313.

In Henry, as in the present case, the issue involved

had been argued on direct appeal to the Florida Supreme

Court. In Henry, as in the present case, that Court did not

expressly discuss its rationale for rejecting the issue on

appeal.*

Yet this Court noted and relied on the State court's

avowed policy of exercising an especially broad scope of review

in death cases, as expressed in Elledge v. State, 346 So.2d 998,

1002 (Fla. 1977). Precisely the same considerations, then, att-

ach to both the instant case and Henry v. Wainwright, supra, and

the State's reliance on Wainwright v. Sykes, supra, is misplaced.

Also patently erroneous is the State's argument that no fed-

eral issue is raised by the instant challenge. The effect of

the Supreme Court's decision in Proffitt v. Florida, 428 U.S. 242

(1976) on future attacks on the application of an aggravating

factor under Florida's capital sentencing scheme was

40 the present case, the Florida Supreme Court addressed

only the “principal issue for determination,” which related to

jury instructions during the guilt phase of the trial, Adams v.

State, 341 So.2d 765, 766 (Pla. 1977), and it additionally affirmed

the death sentence after stating, “our final responsibility is

to consider the appropriateness of the death sentence in order to

determine independently whether the death penalty is warranted.”

Id. at 769. In Henry, the Supreme Court likewise generally con-

duded that “no reversible error is made to appear..." See, Henry

v. Wainwright, supra,at 313.

eS ;

discussed in Proffitt v. Wainwright, 685 F.2d 1227, 1261-1262 at

fn. 52 (llth Cir. 1982). This Court noted that the United States

Supreme Court in Godfrey v. Georgia, 446 U.S. 420, 422, 433-432

(1980) had itself, ina plurality opinion, joined in this respect

by two concurring Justices, addressed just such a contention

on federal constitutional grounds.” This Court consequently con-

cluded, rightly, "that the language in the Spinkellink [v.

Wainwright, 578 F2d 582 (5th Cir. 1978)] opinion precluding federal

courts from reviewing state courts’ application of capital

sentencing criteria is no longer sound precedent." Proffitt

v. Wainwright, supra. The State's attempt at avoidance sub

judice must therefore fail.

°See also Zant v. Stephens, U.S. ___, 102 S Ct. 1855, 1857

72 1.6d.2d 222, 225-226 (1982)3 "In Gregg v. Georgia, 428 U.S.

153, ¥6 S.Ct. 2909, 49 L.Ed. 2d 859 (1976), we upheld the Georgia

death penaity statute because the standards and procedures set

forth therein promised to alleviate to a significant deoree the

concern of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.

2d 346 (1972), that the death penalty not be imposed capriciously

or in a freakish manner. We recognized that the constitutionality

of Georgia death sentences ultimately would depend on the

Ceorgia Supreme Court construing the statute and reviewing

capital sentences consistently with this concern. See 428

U.S. at 198, 201-206, 96 S.Ct. at 2937, 2938-2940 (Opinion of

Stewart, Powell, and Stevens, J.7.); id at 211-212- 222-224,

96 S.Ct. at 2943, 2947 2949 (White, J., concurring in judgment).

Our review of the statute did not lead us to examine all of

its nuances. It was only after the state law relating to

capital sentencing was clarified in concrete cases that we

confronted and addressed more specific constitutional challenges

in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d

982 (1977); Presnell v. Georgia, 439 U.S. 14, 99 &.Ct. 235, 58

L.Ed.2d 207 (1978); Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150,

60 L.Ed.2d 738 (1979); and Godfrey v. Georgia, 446 ''.S. 420,

100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) .”

-ll-

tiivn £9 AGVURAVALIANG SARE UPID LANL ED LVN OA UE

BY THE JURY AND JUDGE FAILED TO CHANNEL

P THEIR SENTENCING DISCRETION AS

REQUIRED BY THE EIGHTH AND FOURTEENTH

AMENDMENTS.

In his opening brief Mr. Adams argued that the

sentencers' — of the “heinous, atrocious, or cruel”

statutory aggravating circumstance, which was unsupported by the

evidence, and of two non-statutory aggravating circumstances, un-

channeled sentencing discretion in violation of the Eighth

Amendment. The state has responded that the evidence was

sufficient to support a finding of the heinous, atrocious, or

cruel circumstance, and that one of the non-statutory circum-

stances was considered on rebuttal of a mitigating circumstance

rather than in aggravation. The first response miscontrues the

record. The second misconstrues the trial judge's findings

of fact in support of the death sentence.

The state has argued (R. Br. 28) that the evidence

was sufficient to support a finding that the murder was especially

heinous, atrocious, or cruel. The heart of the argument is

that the "victim did not die guick, he suffered much. It was

indeed brutal." (Ibid.) Suffering, consciousness of pain,

and awareness of numerous physical assaults prior to death are

critical elements in support of this aggravating circumstance.

Simmons v. State, 419 So.2d 316, 319 (Fla. 1982); Breedlove v.

State, 413 So.2d 1, 9 (Fla. 1982), cert.denied, O38; P

(October 4, 1982); Scott v. State, 411 So.2d 866, 869 (Fla. 1982);

Arango v. State, 411 So.2d 172, 175 (Fla. 1982), cert.denied,

U.S. , 102 S.Ct. 2973 (1982). However,

~12«

the record in this case does not demonstrate that the

victim suffered, was conscious of pain or was aware of the

various physical assaults against him.

To the contrary, the record conclusively shows that

the victim was immediately rendered unconscious by the first

blow to his head (T 797), and that he never regained consciousness

thereafter (T 284, 297, 447, 778-780, 796-797). The prosecu-

tion even conceded this. (T, 244, 251) While the decedent

did not die instantaneously, his consciousness of the acts

done to him and of the pain associated with them nonetheless

ended instantaneously. Thus, the manner in which decedent

was killed was the manner in which the Florida Supreme Cou

has consistently held not to be heinous, atrocious, or cruel.

Simmons v. State, supra; Halliwell v. State, 323 So.2d 557,

561 (Fla. 1975) (cited in Mr. Adams‘ opening brief). Cf.

Breedlove v. State, supra; Scott v. State, supra; Arango v. State,

supra. Accordingly, the very violation of the Eighth

Amendment found with respect to this aggravating circumtance

in Proffitt v. Wainwricht, 685 F.2d 1227, 1261-1265 (llth Cir.

1982), is also present here.

Equally unavailing is the state’s argument that the

trial judge's consideration of Mr. Adams‘ record of non-violent

crimes was in rébuttal of a mitigating circumstance rather than

Section 921.141 (6) (a), Florida Statutes, provides

for the consideration of the absence of a significant criminal

history as a mitigating circumstance.

-13-

in aggravation. The judge's findings of fact in support of the

death sentence belie such a strained interpretion. ’ In

relevant part, the judge found the following:

"..e pursuant to the mandate of Florida

statute 921.141 requiring that the

determination of the court to impose a

sentence of death be supported by specific

written findings of fact based upon the

records of the trial and the sentencing

proceedings, it is hereby found and

determined that aggravating circumstances,

far outweighing any mitigating circumstances,

are as follows:

1. The capital felony of murder in

the first degree was committed

by the defendant, James Adams

while he was under a sentence

of imprisonment for 99 years

by the Court of General Sessions,

Dyer County, Tennessee after

a conviction on the charge of rape.

2. The defendant was previously convicted

of a capital felony, same being

the charge of rape above refe¢red

to and being a felony involving also

the use or threat of violence to

the person.

6. The capital crime of murder in the

first degree was especially heinous,

atrocious and cruel.

By his own admission the defendant

was previously convicted of crimes on

at least five occasions and the further

undisputed evidence shows the defendant

has a record involving crimes of

violence; that he is an escapee of

the State Prison System of the State

of Tennessee and that the body of

the victim was mutilated, mangled and

disfigured unnecessarily."

Tohat Mr. Adams' post-conviction hearing witness, on cross,

may have agreed tentatively with the state's interpretation of the

judge's findings is not binding upon Mr. Adams, since his legal

conclusion is no more binding upon the Court than the Florida courts’

legal conclusion.

-14=

(RD 84-85) (emphasis supplied). In the context of these findings,

Mr. Adams' five previous convictions (without proof of any

violence associated with them) were clearly seen by the judge

as aggravating. His findings, as noted in his introductory

remarks, discussed only the aggravating circumstances. The five

previous convictions are mentioned in a paragraph apparently

summarizing what the judge deemed the most aggravating of the

just-enumerated factors. The convictions are mentioned in pari

materia with Mr. Adams’ “record involving crimes of violence."

In this context, the judge unquestionably considered the prior

crimes in aggravation, rather than in rebuttal of mitigation.

‘Moreover, in the trial court, Mr. Adams never proffered the

lack of a criminal history in mitigation. To suggest that this

is nonetheless the context in which the trial court considered

Mr. Adams‘ non-violent criminal record is to ignore the way in

which the issues were tried and to urge this Court to violate the

principles of Presnell v. Georgia, 439 U.S. 14 (1978). Such

plea should be rejected, and Mr. Adams" sentence should be

vacated hecause it was imposed, in part, upon the consideration

of the non-statutory aggravating circumstance of Mr. Adams'

non-violent criminal record.

IV. THE FLORIDA SUPREME COURT'S HARMLESS

ERROR RULE, CONCERNING THE SENTENCER'S

RELIANCE UPON LEGALLY IMPROPER

AGGRAVATING CIRCUMSTANCES, DEPRIVED

PETITIONER AND DEPRIVES OTHER CAPITAL

DEFENDANTS OF RIGHTS NECESSARY TO THE

CONSTITUTIONAL IMPOSITION OF THE

DEATH PENALTY.

With this issue, Mr. Adams has drawn into question

only the following aspect of Florida's harmless (capital sentencing)

-15-

error rule: when there is error in the finding of some, but not

all, of the aggravating circumstances, and there are no

mitigating circumstances present, the error in the assessment of

aggravating circumstance is necessarily (and always) harmless.

The state's response confuses and muddles the straightforwardness

of this issue. Mr. Adams is not arguing here that the Florida

Supreme Court never finds the erroneous assessment of aggravating

circumstances harmful, or never engages in a process of deter-

mining whether such error affected the critical weighing

process in a capital sentencing proceeding. Nor is he arguing

that the Florida Supreme Court should “automatically" reverse

a death sentence upon a showing of theinvalidity of just one

of the aggravating circumstances. He is arguing only that the

Florida Supreme Court mechanistically and "automatically" affirms

death sentences which are based in part upon invalid aggravating

circumstance when no mitigating circumstances are present, and

that this process - which leaves no room for even an occasional

reversal under such circumstances - violates the Eighth Amendment.

The state tries to hide this issue by arguing that

Mr. Adams’ argument proceeds on a faulty premise. (R. Br. 32-33)

With this diversion in hand, the state thereafter never responds

to Mr. Adams' three-part analysis of the unconstitutionality

of the harmless error rule. The state's obfuscatory tactic

is of no use, however, for Mr. Adams' premise is as solid as any

premise can be: it is absolutely uncontradicted by the decisions

of the Florida Supreme Court. Since the effective aate of the

current death penalty statute in Florida, no death sentence has

been reversed under the circumstances presented by Mr. Adams’

-16-

case - in which some aggravating circumstances were erroneously

considered but there were no mitigating circumstances found.

See Cooper v. State, 336 So.2d 1133, 1140-1142 (Fla. 1976);°

Adams v. State, 341 So.2d 765, 769 (Fla. 1977) [the case of the

petitioner herein]; Aldridge v. State, 351 So.2d 942, 944

(Fla. 1977); Gibson v. State, 351 So.2d 948, 951-953 (Fla. 1977);

Jackson v. State, 359 So.2d 1190, 1194-1195 (Fla. 1978);

Washington v. State, 362 So.2d 658, 666 (Fla. 1978); Ford v.

State, 374 So.2d 496, 503 (Fla. 1979); Dobbert v. State, 375

So.2d 1069, 1071 (Fla. 1979); Clark v. State, 379 So.2d 97,

99, 104 (Fla. 1979); Shriner v. State, 386 So.2d 525, 534

(Fla. 1980); Johnson v. State, 393 So.2d 1069, 1072-1074 (Fla.

1980); Peek v. State, 395 So.2d 492, 497-500 (Fla. 1981);

Demps v. State, 395 So.2d 501, 505-506 (Fla. 1981); Palmes v.

State, 397 So.2d 648, 656-657 (Fla. 1981); Straight v. State,

397 So.2d 903, 909-910 (Fla. 1981). Armstrong v. State, 399

So.2d 953, 962-963 (Fla. 1981); Sireci v. State, 399 So.2d

964, 971 (Fla. 1981); Enmund v. State, 399 So.2d 1362, 1371-1373

(Fla. 1981), reversed on other grounds, U.S. » +102 8.CE. 3368

(1982); White v. State, 403 So.2d 331, 337-341 (Fla. 1981);

Messer v. State, 403 So.2d 341, 348-349 (Fla. 1981); Tafero v.

State, 403 So.2d 355, 362 (Fla. 1981); Francois v. State,

407 So.2d 885, 890-891 (Fla. 1982); Smith v. State, 407 So.2d

894, 903 (Fla. 1982); Raulerson v. State, So.2d , 1982

F.L.W., S.C.O. 376, 378 (Fla., August 26, 1982); Bollender v.

Bor ease of reading, denials of certioarari have not

been cited. Certiorari grants or subsequent modifications have

been noted.

State, _So.2d__, 1982 F.L.W., S.C.0O. 490, 492 (Fla., October

28, 1982) .- Thus it is axiomatic that the erroneous assessment

of aggravating circumstances, in the absence of any mitigating

circumstances, is deemed harmless. Conversely, it is also

axiomatic that when the erroneous assessment of aggravating

circumstances is deemed harmful, there are always mitigating

circumstances which have been found to exist; or is evidence of

mitigating circumstances which should have been admitted, or

if admitted, which should have been found to exist; or is a

ap cas : 12

a finding of mitigating circumstances.

Accordingly, Mr. Adams is not proceeding on a faulty

premise. His premise -- that the Florida Supreme Court automatically

affirms death sentences like his, which are based upon some

The Only case deviating at all from this pattern is Maggard

v. State, 399 So.2d 973 (Fla. 1981), in which two of three

aggravating circumstances were invalid, and no mitigating circumstance:

were found. Id. at 977. While reaffirming the harmless error

rule, the court reversed the death sentence, because evidence

of the defendant's non-violent criminal record was admitted despite

the defendant's waiver of any reliance on the mitigating circum-

stance (lack of significant record) which would have provided the

only proper foundation for its admission. Ibid.

Elledge v. State, 346 So.2d 998 (Fla. 1977); Riley v. State,

366 So.2d 19 (Fla. 1979); Mikenas v. State, 367 So.2d 606 (Fla.

1979); Menenedez v. State, 368 So.2d 1279 (Fla. 1979); Miller v.

State, 373 So.2d 882 (Fla. 1979); Fleming v. State, 374 So.2d 954

-(FIla. 1979); Lucas v. State, 376 So.2d 1149 (Fla. 1979); Lewis

v. State, 377 So.2d 640 (Fla. 1980); Gafford v. State, 377 So.2d

333 (Fla. 1980); Mines v. State, 390 So.2d 332 (Fla. 1980); Blair

v. State, 406 So.2d 1103 (Fla. 1981); Moody v. State, 418 So.2d

989 (Fla. 1982).

ee v. State, 343 So.2d 29 (Fla. 1977); Mines v. State,

supra [note 10]; Perry v. State, 395 So.2d 170 (Fla. 1981); Jacobs

v. State, 396 So.2d 713 (Fla. 1981); Ferguson v. State, 417 So.2d

631 (Fla. 1982); Ferguson v. State, 417 So.2d 639 (Fla. 1982).

See, e.g., Tedder v. State, 322 So.2d 908 (Fla. 1975); Provence

v. State, 337 So.2d 783 (Fla. 1976); Williams v. State, 386 So.2d

538 (Fla. 1980).

=i 8«

invalid aggravating circumstances offset by no mitigating

circumstances -- is factually uncontradicted. This Court

can now reach the merits of Mr. Adams" argument, which the state

failed to reach in its brief, that such a practice violates

the Eighth Amendment. See Pet. Br. 40-50.7°

V. THE TRIAL COURT'S RULING CONCERNING

THE SCOPE OF ADMISSIBLE MITIGATING

EVIDENCE IMPERMISSIBLY RESTRICTED

THE CONSIDERATION OF MITIGATING

CIRCUMSTANCES.

In his opening brief, Mr. Adams argued that the trial

judge issued an unrecorded pre-sentencing-hearing order

restricting the presentation of mitigating circumstances to

those contained in the statute. In response the state argued

that the factual basis for this claim (the issuance of such an

order) was too tenuous to support the ciaim and implied that this

Court is bound by the Florida court's resolution of the

claim. (R. Br. 37) Neither of these points has merit.

The factual basis of the claim is certainly established

sufficiently -- given the error involved -- to require the

Court to reach the merits of the claim. In Stephens v. Zant,

631 F.2d 397 (5th Cir.1980), modified, 648 F.2d 446 (5th Cir. 1981),

1l3mhe vigor of the state's effort to avoid this issue cannot

be gain said. While accusing Mr. Adams of proceeding on a faulty

premise, the state itself proceeds on a faulty premise, asserting

that the harmless error test is really “whether or not the Florida

Supreme Court can be satisfied beyond a reasonable doubt that

the results of the weighing process would have been no different.”

(P. Br. 36) If the court genuinely proceeded on this basis, then

the court would most certainly have reversed some death sentences basec

upon faulty aggravating circumstances, even in the absence of

mitigating circumstances. This Court has. See Henry v. Wainwright,

(5th Cir. 1931), judgment reinstategj, 686 F.2d 311 :

(5th Cir. 1982) (Uni 3; Protfti Vv. Wainwright, supra, 685 F.2d at

1268-1269. But the Florida Supreme Court never has. The only ex-

planation for this is that the Florida Supreme Court applies the

automatic harmless error test discussed by Mr. Adams, not the test put

forward by the state.

Ein

cert. granted on other grounds, U.S. » 102 S.Ct. 575 (1981),

this Court considered a related issue: whether a death sentence

can constitutionally be affirmed when the transcript before the

reviewing court does not contain the proceedings of the entire

trial. 631 F.2d at 402. Relying on Gardner v. Florida, 430 U.S.

349 (1977) and Gregg v. Georgia, 428 U.S. 153 (1976), the Court

held that " [i]f the record presented to the Georgia Supreme

Court was so deficient that it ... would create ‘a substantial

risk' that the penalty is being inflicted in an arbitrary and

capricious manner, ... petitioner's sentence cannot be permitted

to stand." 631 F.2d at 403. After articulating this principle,

the Court outlined five considerations relevant to determining

whether a particular claim arising from an omission in the

record meets this test. 631 F.2d at 403-404. Mr. Adams‘ claim

satisfies all five considerations.

First, the unrecorded order was a "key element” in the

procedure by which the death penalty was imposed, 631 F.2d at

403, for it prevented the consideration of all the asnects of

Mr. Adams' character and record and all the circumstances of

the offense which might have been proffered in mitigation.

See Lockett v. Ohio, 438 U.S. 586, 604-605 (1978); Eddings v.

Oklahoma, i * , 102 S.Ct. 869 (1982). Second, the

unrecorded order aave "the appearance of arbitrariness," ibid.,

because of its curtailment of the presentation and consideration

of mitigating circumstances, supra. Third, there is affirma-

tive proof of the nature of the untranscribed order, ibid., which

~20-

Significantly curtailed Mr. Adams‘ Eighth Amendment rights!4

Fourth, there was nothing contained elsewhere in the record,

631 F.2d at 404, to contradict the proof of the untranscribed

order and its prejudice to Mr. Adams. Finally, Mr. Adams has

alleged substantial prejudice from this order because of its

curtailment of the investigation and presentation of available

non-statutory mitigating circumstances. Taken together, these

considerations demonstrate that the unrecorded order created

a substantial risk that Mr. Adams' death sentence was inflicted

in an arbitrary and capricious manner, necessitating the setting

aside of his sentence. Stephens v. Zant, supra.

The Florida Supreme Court's determination that the

evidence of the unrecorded order was insufficient to require such

a result, see Adams v. State, 380 So.2d 423, 424 (Fla. 1980),

in no way binds this Court. The determination of the legal

sufficiency of this evidence is a matter of federal law.

Stephens v. Zant, supra. It is not a "factual determination”

to which this Court must defer. Sumner v. Mata, 449 U.S. 5393,

547 (1989).

Accordingly, because Mr. Adams has sufficiently established

plain Lockett-Eddings error, his death sentence must be vacated.

*The State's characterization of Mr. Wilkinson's recollection

as “vague” is unfounded. Mr. Wilkinson testified that he

expressly recalled Judge Sample's limitation on mitigating circum-

stances (PCT 14). (Apparently, such a limitation was not unique

to the instant trial, leading to Mr. Wilkinson's sole uncertainty

in the matter, which was dispelled after conferring with lead

counsel, Mr. Schopp.) See Pet. Br. at page 53.

13 is an affront to the intellectual integrity of this

Court to suggest, as the state does (R. Br. 38), that defense

counsel's appeal to the jury on the basis of Mr. Adams' being "a

human being" is sufficient evidence to show that this order did not

curtail counsel's effort to present non-statutory mitigating circum-

stances.

=2l-

VI. THE FLORIDA SUPREME COURT'S EX PARTE

CONSIDERATION OF EXTRA=RECORD PSYCHIATRIC,

PSYCHOLOGICAL AND CORRECTIONAL REPORTS

IN PETITIONER'S CASE AND OTHER PENDING

APPEALS VIOLATED PETITIONER'S CON-

STITUTIONAL RIGHTS.

Petitioner will rely upon the discussion presented in

his intial brief herein.

VII. PETITIONER WAS DENIED EQUAL PROTECTION

AND DUE PROCESS BY THE RESOLUTION OF

HIS CLAIM CONCERNING THE ARBITRARY

APPLICATION OF THE DEATH PENALTY WITHOUT

FIRST PROVIDING THE EXPERT ASSISTANCE

NECESSARY FOR THE FULL AND FAIR CON-

SIDERATION OF THIS CLAIM.

In his opening brief, Mr. Adams argued that he had

pled sufficient facts to require the provision of expert assistance

in prosecuting his claim that the death penalty was (and is) being

applied arbitrarily in Florida on the basis of geography, race,

and other invalid factors. Two points of the state's response

to this arguement merit a brief reply.

First, the state implies that the arbitrarness claim

underlying the expert assitance issue has been forclosed as a

matter of law by the Supreme Court in Proffitt v. Florida, 428

U.S. 242 (1976) and by this Court in Spinkellink v. Wainwright,

578 F.2d 582 (5th Cir. 1978). This assertion, if intended, is

not true. Proffitt, like Gregg in relation to Georgia, was

concerned only with the facial validity of the Florida death

penalty statute. Since the arbitrariness claim attacks the

application of the statute, it is not foreclosed by Proffitt.

See Zant v. Stephens, U.S. , 102 S.Ct. 1856, 1857 -(1982).

Moreover, to the extent that Spinkellink can be read as foreclosing

such an "as applied" attack, it "is no longer sound precedent.”

ae, oe

Proffitt v. Wainwright, supra, 685 F.2d at 1262 n. 52. See also

Smith v. Balkcom, 660 F.2d 573, 584-585 (5th Cir. 1981) (Unit

B), modified, 671 F.2d 858 (5th Cir. 1982) (Unit B).

Second, the state argues that if Mr. Adams’ allegations

are insufficient to warrant an evidentiary hearing, they are

insufficient to warrant the provision of expert assistance.

The state's response confuses the standards for obtaining an

evidentiary hearing with the standard for prevailing on the

merits after such a hearing, anc totally fails to consider the

distinct issue of expert assistance in regard to such a

hearing. Blackledge v. Allison, 431 U.S. 63 (1977) requires an

evidentiary hearing unless there is no rationally conceivable

state of facts to support the claim being advanced. Under this

test, Mr. Adams was entitled to a hearing. However, he certainly

could not be expected to prove his claim without expert

assistance. Quite obviously, this Court cannot countenance a

rule which would deprive an impecunious capital habeas corpus

petitioner of the right to proceed meaningfully in a hearing

to which he is entitled. Yet this is precisely what the state,

in obec, has urged. The Eighth Amendment's requirement

of reliability and the Fourteenth Amendment's requirement of

equal protection forbid such a result.

=2ZJeo

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Street/13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

Que Oxb.5)

OSTAPOFF

nder

nt Public De

TATJAN

Assist

‘etlaaak \ “Sg TW.

RICHARD H. BURR, III

Assistant Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of the foregoing has

been furnished to Honorable Robert L.Bogen, Assistant Attorney

General, 111 Georgia Avenue, Elisha Newton Dimick Buildng, West

Palm Beach, Florida 33401, thi 4th day November, 1982.

Gr ons us|

Of sisi

-24-

7s eer ar”

JAMES ADAMS,

AIT?

se WAINWRIGHT, Secretary,

Florida Department of Corrections,

Respondent-Appellee.

Or. Appeal from the United States District

For the Southern District of Florida

Court

eh anaes mentees naen anne samen

gRI > > }? TH - >} -b L

BRIEF FO! TIONER-APPELL?

e thas ro:

MNTOCTIIAN r ADA

aoe CHA! D bse WS INAALWN B I

Public Defender

15th Judicial Circuit of Florida

224 Datura Street/1l13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

ANA OST

TAT

ahria

Assistant

RICHARD H. BURR, III

Of Counsel

ic Defender

Attorneys for Petitioner-Appellant

PREFERENCE: Habeas Corpus

T BLE OF CONTENTS

STATEMENT CT THE ISZUES ccc cccccccceses sneébderl eee Cre eee

STATEMENT OF TET ChE. ee ee ee eter eee eer ecoce oveewe oa e806 we

Prior ProceeCingSecccccccccccccce ocbaw ee cesee bee

Statement of the FactS...........6. nena bes keanadses

SUMMARY OF ARGUMENT... cccceccees “ee eee e606 65.28 OS 2 8 68'S. 0 2 SS

STATCMENT OF. JURISDICTION. cc ccc ccc cces Cor cccccssccscecces

ARGUMENT

I. PETITIONE® “AS DEPRIVED OF THE FFFECTIVE

ASSISTANCE OF COUNSEL AT THE SENTENCING

PHASE OF HIS CAPITAL PROSECUTIC

A. DEFENSE COUNSEL'S FAILURE TO APGUF AND

PROTECT PETITIONER'S RIGHTS THROUGH

GATE OR PRESENT AVAILABLE MITIGATING

EVIDENCE DEPRIVED PETITIONER OF HIS

RIGHT TO COUNSEL.

B. TRIAL COUNSEL'S FAILURE TO ARVOCATE

PETITIONER'S POSITION DURING THE

PENALTY PHASE OF TRIAL MUST RESULT

IN VACATION OF THE DEATH SENTENCE.

“~

EXECUTION OF THE DEATH SENTENCE IMPOSEN AGAIN

NWR. ADAMS IS CROSSLY DISPROPORTIONATE,

EXCFSSIVE, AND STANDARDLESS WHE*E THE KILLING

‘25 MOT DELIBERATE BUT COMMITTED DURING A

FELO!’, AND WHERE AN AGGRAVATING CIRCLU™“STANCE

WAS APPLIED VHICH FAILS TO DIFFERENTIATE THIS

CASE rvROM ANY OTHER FELONY=-"‘URDER.

TUE AGGRAVATING CIRCUMSTANCES CONSIDERED BY THE

JUPY ANP TED TRIAL JUDGE FAILED TO CHANNEL

THEIR SENTES ICING DISCRETION AS REQUIPED BY

MIE EIGHTH AND FOURTEENT! AMENDMENTS.

THE FLORIDA SUPREME COURT'S PAne’rtESS ERROR RULE

CONCERNING THE SENTENCE DEI GLAST 5 fot ot \TION Or

AND RELIANCE UPON LEG “ALLY gPervaa(. ose ‘CRAVATING

CIRCUMSTANCTS, DEPRIVED Milt cs PY ) DEPRIV?

OTHER CAPITSL DEFENDANTS Cl iG "S BESeESSAR\ ri

THE CONSTITTTIONAL IMPOSITION OF PVE DSATH

PENALTY.

14-264

28-34

@ TABLE OF CONTENTS CONTINUED

PAGE

VY. THE TRIAL COURT'S RULING CONCERNING THE

OF ADMISSIBLE MITIGATING EVIDENCE,

WITH ITS INSTRUCTIONS TO THE JURY,

SPMISSIBLY RESTRICTED THE CONSIDERATION

oF MITIGATI!*> CIRCUMSTANCES IN THE TRIAL

COURT. 50-583

yu th

VI. THE FLGRIDA SUPREME COURT'S EX PARTE CON-

SIDERATION OF EXTRA-RECORD PSYCHIATRIC,

PSYCHOLOGICAL AND CORRECTIONAI. REPORTS

IN PETITIONER'S CASE AND OTHER PENDING

APPEALS VIOLATED PETITIONER'S CONSTIT'-

TIONAL RIGHTS. 59-61

VIT, PETITIONER WAS DENIED EQUAI. PROTECTION AND

DUE PROCESS BY THE RESOLUTION OF HIS

CLAIM CONCERNING THE ARBITRARY APPJ,ICATION

OF TYE DEATK PENALTY WITHOUT FIRST PRO-

VIDISG THE EXPERT ASSISTANCE NECESSARY

TOP THE FULL AND FAIR CONSIDERATION OF

THIS CLAIM. 61-64

ati-

decision arrived at was therefore neither fair nor reliable, since

it was based on an inaccurate, one-sided sense of Mr. Adams

because of counsel's failure to convey any of the “compassionate

or mitigating factors stemming from the diverse frailties of

mankind." Id. Obviously, a decision és impose death under these

conditions is no different from one that is founded "in part

upon misinformation of constitutional magnitude." Tucker v. United

States, 404 U.S. 443, 447 (1972). Errors of this kind, which

affect the essential character of the capital sentencing proc-

cess can never be deemed harmless or nonprejudicial. See, e.g.,

Gardner v. Florida, 430 U.S. 319 (1977); Green v. Georgia, 442

U.S. 95 (1979). Mr. Adams' death sentence must, therefore, be

vacated.

II. EXECUTION OF THE DEATH SENTENCE IMPOSED

AGAINST MR. ADAMS IS GROSSLY DISPROPOR-

TIONATE, EXCESSIVE, AND STANDARDLESS WHERE

THE KILLING WAS NOT DELIBERATE BUT COMMITTID

DURING A FELONY, AND WHERE AN AGGRAVATING

CIRCUMSTANCE WAS APPLIED WHICH FAILS TO

DIFFERENTIATE THIS CASE FROM ANY OTHER

FELONY MURDER.

Mr. Adams was indicted for felony-murder, and the prosecutor

frankly conceded throughout the proceedings that the only basis

for return of a first degree murder verdict was the fact that the

killing occurred during a felony (T 1050). Moreover, the evidence

showed that the assailant was surprised during the course of a

burglary by the deceased, whose death resulted from a violent

struggle likely initiated by the latter. No weapons were brought

into the house by the intruder, who used a fireplace poker be-

longing to the Browns to repel the deceased.

$s Mr. Adams was thus clearly convicted of the capital crime sole-

ly because of the jury's finding that the homicide occurred

during the course of an enumerated felony. But as an aggravating

factor justifying imposition of the death penalty, the trial court

relied on the fact that the killing occurred during the course of

a felony, the same factor on which conviction was predicated, and

Not

12]

irily exists in every felony-murder case.

only is the death sentence excessive when there has been no finding

intentional, as in the present case, but

oF)

()

( ‘

”

this reliance on a factor which does not distinguish Mr. Adams'

crime from any other felony murder strips Florida's death penalty

statute of compliance with the requirement that capital sentencing

be imposed only upon an individualized basis, as required by the

Eighth Amendment of the United States Constitution.

In Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court

expressly recognized the cruel and unusual punishment prohibition

may be violated where a punishment is disproportionate to the se-

verity of the crime. Id. at 173. The Gregg holding expressly applied

only to those cases where there was jeliberate taking of life.

"[W]e are concerned here only with the imposition

o£ capital punishment for the crime of murder,

and when a life has been taken deliberately by

the offender, we cannot say that the punishment

is invariably disproportionate to the crime. It

is an extrem sanction, suitable to the most ex-

treme of crimes."428 U.S. at 187 (emphasis

supplied, footnote omitted.)

In Coker v. Georgia, 433 U.S. 584 (1977), the Court held

that the Eighth Amendment proportionality analysis must be

applied even to particular serious crimes which do not involve

the deliberate takinsa of human life. Id. at 592. The death

- 29 ;

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"The value of capital punishment as a deterrent

to those lacking a purpose to kill is extremely

attenuated. Whatever questions may be raised

concerning the efficacy of the death penalty

as a deterrent to intentional murders—and that

debate rages on—its function in deterring

individuals from becoming involved in ventures

in which death may unintentionally result is

even more doubtful.”

= &

‘Under those circumstances the conclusion is

unavoidable that the infliction of death upon

those who had no intent to bring about the death

of the victim is not only grossly out of pro-

portion to the severity of the crime but also

fails to significantly contribute to acceptable

or indeed, any perceptible goals of punishment.”

The district court's reliance for a finding of delihberate-

ness in the present case on the substitution of the felony for

the element of intent normally required in a prosecution for

first degree murder misses the mark. This is clarified by the

Supreme Court's recent decision in Enmund v. Florida, _U.S._,

102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), which held that, even

though the defendant participated in the underlying felony, so

that his conviction for first degree murder was proper, the death

sentence was disproportionate punishment in his case where he did

not actually commit the killings and where he did not intend that

they take place. Important to note is Justice White's assess-

ment of the deterrent effect of the death sentence where a death

arises as the result of the commission of a felony:

Tt would be very different if the likelihood

of a killing in the course of a»robbery were so

substantial that one should share the blame for

the killing if he somehow participated in the

felony. But competent observers have concluded

that there is no basis in experience for the

notion that death so frequently occurs in the

course of a felony for which killing is not an

essential ingredient that the death penalty

should be considered as a justifiable

deterrent to the felony itself.’

wee y oe

Enmund limited itself to actual consideration of the facts

before it, where the defendant was a co-felon but not a "“trigger-

man." But it applied the same reasoning discussed, supra, which

Mr. Adams contends mandates the conclusion that death is an app-.

ropriate sentence only where it is imposed after a finding that

the killing being punished was intentional, a finding which cannot

be made on the facts of the instant case. :

Also arising from the fact that the instant prosecution was

predicated solely upon a theory of felony murder was the use of

the underlying felony as an aggravating circumstance. But this

aggravation exists automatically in every felony murder case.

Moreover, the Florida Supreme Court has interpreted the state

Statute in such a way that where even a single aggravating factor

under the statute survives appeal, a death sentence will not be

reversed in the absence of mitigating factors, despite the inval-

idity of some of the acgravation relied upon by a trial judge in

imposing the ultimate penalty. Elledge v. State, 346 So.2d 998, 1953

(Fla. 1977); see, Poznt IV, infra. Because every felony murder will

always have at least one aggravating factor ipso facto, the eff-

ect is that death becomes the automatically preferred sentence in

a felony murder case.

Certainly all fe ony murders do not, and constitutionally can-

not, mandate the death sentence: a mandatory death sentence would

be invalid. i.g., Wo-oison v. North Carolina, supra. But the appli-

cation of the aggravating factor of an underlying felony which

is implicit in the conviction for first degree felony murder oper-

~ Pas

ates in a similar manner to defeat the function of the statutory

aggravating circumstances to confin® and channel capital sentenc-

ina discretion, in violation of Furman v. Georgia, 408 U.S. 233

j an

(1972). To uphold a death sentence on the basis that it was a

felony murder provides no meaningful basis for distinguishing be-

tween those felony murderers who receive death and those who obtain

life, rendering the Florida statute arbitrary and capricious as

., Proffitt v. Florida, 428 U.S. 242, 252 (1976). The

North Carolina Supreme Court so found in its decision striking

the use of the underlying felony as an aggravating circumstance.

State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979).

urther, because every felony murder under the Florida scheme

as presently applied comes into the penalty phase with at least

yne automatic aggravating factor, the burden of proof at that

stage of the proceedings shifts to the defendant to establish

mitigating evidence to outweigh the presumptive death sentence.

Such a result can never be constitutionally permissible, cf.,

Mullaney v. Wilbur, 421 J.S. 684 (1975), particularly not ina

case where the stakes are so high. See, Lockett v. Ohio, supra,

_-———-

438 U.S. at n. 16 [plurality expressly reserves question as to the

constitutionality of Ohio statute, reversed on other grounds,

which required death unless defendant proved mitigation].

Finally, Eddings v. Oklahoma, _U.S._, 102 S.Ct. 869, 71 L.

Ed.2d 1 (1982) teaches that even mental factors which do not com-

pletely excuse criminal liability must be considered as relevant

evidence on the issue of sentence in a cavital case. Thus, even

thouch the non-intentional-nature of the killing in the instant

$ case is not a legally sufficient excuse which would result in the

total avoidance of culpability for a capital felony because of the

felony murder theory of prosecution—although it may well have

been a complete defense had the State charged premeditated murder—

it is a matter which is properly considered in mitigation of the

sentence. But what vrovides the mitigation in the present case

also provides an aggravation: the underlying felony, as a matter

of law. Once again, the sentencer is left without substantial

guidance on the punishment issue, leading to that standardless

and arbitrary sentencing process condemned in Furman v. Georgia,

supra.

III. THE AGGRAVATING CIRCUMSTANCES CONSIDERED

BY THE JURY AND THE TRIAL JUDGE FAILED TO

CHANNEL THEIR SENT ING DISCRETION AS

REQUIRED BY THE EIGHTH AND FOURTEENTH

AMENDMENT.

Mr. Adams contends that three of the aggravating circum-

stances considered by the jury and the trial judge in his case

were considered in violation of Eighth and Fourteenth Amendment

safeguards. One of the circumstances—that the homicide was

“especially heinous, atrocious, or cruel” [Fla.Stat. §921.141 (5)

(h)]—was improperly considered because it was not supported by

the evidence consistently held as necessary to support it. Two

other circumstances—that Mr. Adams had a criminal record of “at

least five" convicticns and that the victim has been a prominent

outstanding citizen—were improperly considered because thoy were

non-statutory agaravatina circumstances precluded from consider-

ation by the Florida Jeath penalty statute. Because the

@ consideration of these siege circumstances in the sentencing

- 34 - ‘ :

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.