Petition — SHRINER v. WAINWRIGHT (No. 83-5897)

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hom RECEIVED

DEC 12 1983

NO OFFICE OF THE CLERK

oe SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

prareioae 83-5897

LOUIE L. WAINWRIGHT, Secretary,

Plorida Department of Corrections,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE ELEVENTH CIRCUIT

DANIEL T. O'CONNELL, ESQUIRE

O'Connell and HulsJander

33 North Main Street

Gainesville, FL 32601

(904) 373-9141

Counsel for Petitioner

TABLE OF CONTENTS

Questions PRODOROEEES oo 0680660666666 CHES 6 0666000064 0006060080K0 i

Table of CEMEEREH c cc cece Sereeceessseoreesseerseegvsvescevesooseosas

Table of PBEROCITCIGG ec 6 66 0.066006 C6O 6d dCOCTEC OCHO ODOESEHOEE SOD OCS vi

Citations to Opinions ’ RC. PPrrerrrerererrererereerereererrery 1

FT ph ei” Prev eTrerrei CYrrerererrrresrrere erry Cr eee eee 1

Constitutional and Statutory Provisions Involved...cecsesesees

A. Course ot Prior PLOCEOGiINGS. coccccscsecssesesessssese

Statement GF the CaSe..cccccccccccccccccrscescscssessssessseses &

B. Pacts Relevant to the Questions Presented.....ssesees

(1)

(2)

(3)

(4)

(5)

(6)

Petitioner's challenge to the admission of

his post-arrest custodial statement at this

state court EEIGLecccceseeceseensseceevesesceooeoss 3

The exclusion of testimony of a clergyman who

had witnessed an execution precluded Petitioner

the benefit of the judgment of the community

in violation of the Eighth Amendment........... 10

Consideration of non-statutory aggravating

factors in imposing a sentence of death

conflicts with the reliability requirements

for capital SENteNCing...ccscccsesssesesesecssess 10

Petitioner's challenge to instructions that

might well lead a reasonable juror to conclude

that the jury was forbidden to consider

relevant mitigating circumstancesS.....ssseeeee+ 12

The sentencing court's failure to set forth

mitigating factors it found, deprived

Petitioner of the right to a meaningful

SOV 19 00 000660000006 660050006 060006460S6 00 SObO 13

Petitioner's challenge to the Plorida Supreme

Court's ex parte solicitation, receipt, and

consideration of evaluative materials concerning

capital defendants whose appeals were before

the COESCecccccoccccccceescsocecseseeceodseceetseces

Reasons for Granting the We iCe coccvcccccvcssecssesscceceosesees 14

I. Certiorari should be granted because the court of appeals

misapplied the decisiosn of this Court and created

conflict with prior appellate decisiosn when it upheld

the admission of petitioner's post-arrest custodial

statement on the finding that petitioner's right to

cut-off questioning was “scrupulously honored® even

though Petitioner's clear request to have questioning

cease reflected an “ambiguous” desire to remain silent... 14

II. The Court should grant the writ to determine whether

the exclusion of testimonh of a clergyman who had

witnessed an execution precluded petitioner the benefit

of the judgment of the community in violation of the

Eighth DREN 6 5'0. 6 6 6 0 066 66866 CR RSS Seb beeddhaeecsnaunse 19

III. The Court should grant certiorari to determine whether

consideration of a non-statutory aggravating factor

in imposing a sentence of death conflicts with the

reliability requirements for capital sentencing........++. 20

IV.

VI.

The Court should grant certiorari to determine whether

instructions to the jury at the sentencing phase that

a reasonable juror might well have understood to limit

him or her to only the statutory mitigating factors

violated the Eighth and Fourteenth Amendments........+-+- 20

The Court should grant certiorari to determine whether

the sentencing court's failure to set forth mitigating

factors it found deprived Petitioner of the right to a

MEANINGEU] FeViEW..ccccececeeeeceseseesesesesesesesssesese 2a

The Plorida Supreme Court's secret, ex parte solicitation,

receipt, and consideration of reports from state executive

agencies concerning capital litigants whose appeals were

then pending for sentencing review present vital

constitutional questions which should be resolved by

this DT Ee he hess edeseseeceeseesececeeoeceseeseee ene eoeeee *e 25

CONCLUSION. ccocccceccsce eeeeeeneeee eeeeeeeee eee eeeeneeenee eee eeeeee 26

AUTHORITIES CITED

CASES CITED PAGE (S)

Adams v. State, 380 So.2d 423

a. TESRCORGSSS ODN C0566 0005 0060066000600660e0K0 R000

Alvord v. State, 396 So.2d 184

a. COCCHOHOESOCOOEEOEEEEEEOOEOEEOEEEO LOSES OSOCCCEOOaa

Vv t 410 So.2d 157

(Pla. PE SCHGh 66 066006060606 6000600060 600000 0ezeoessaeul

Barclay v. Plorida, U.S. ’

omte 8 ft PPT T TTT TTT Terre: | oe 13, 20, 23

City of Columbia, 378 U.S. 146

SHOSCCOSESCESSHOSEHOSOOSOOHESOSOS COED OSOEOOOOOEELESOSSOCEE

Brown v. Wainwright, 392 So.2d 1327

(Fia.) cert. denied,

454 U.Ss. 1000 T2UGE) cocccccccccccesvcccccccocesoccccoosne 14

California v. Ramos, SS Se

Ct. . 77 L.Ed.2d 1171

DTC se boeheadah edbeeo 6 000e 6600s 66écebeourbeokssael

Cooper v. State, 336 So.2d 1133

(Pla. I576) cert. denied,

431 U.S. 825 Dre BABkGwh sed 66 6 0s60 060666 c0uSscewdenbaeenl

County Court of Ulster County v. Allen,

. . , WE 665606b260606006046660606 5600

, 416 So.2d 808

(Pla. PPE CESSCOoeOOK Eade Cede soesesddosnsésceciecedoridenl

, 409 So.2d 1053

(Pla. DE 606 bbb FORGE Ce ceestb de bee cebéesecshswseueeunual

r 373 So.2d 894

(Pla. DET Seb Seedseedosocoscedcecconaessdcssecsessedanean

+ 346 So.2d 998

(Pla. PE 6406066 66000606000000600000 60s se ceseocnamocceh

Ford v. Strickland, 696 F.2d 804

rt. _ PPYYTTiL i ririr rr irrrirrrirrrrriire oo 14, 20

Poster v. Strickland, 797 F.2d 1339

rt. Poccccccccccccccccccoccccccccccccccccodls 24

Purman v. Georgia, 408 U.S. 238

COCO O CSE EEE EEE EEE EEEseseseseseseessseseseseseaay 23

Gardner v. Plorida, 430 U.S. 349

COCO SOHC O EE EEE EE EEE ESET ESE ESE EEESEEEeeeeeeesoy 26

Goode v. State, 403 So.2d 931

a. Miskeseudepdinsé oeenteckeseeuns cetndlueleee

Goode v. mestei la 704 F.2d 593

ir. Wr 66b0 05660006006 ct etdscbbcoéhoodeas ae

Green a festa 442 U.S. 95

FSSSO SO FOHS 0 OEH0S COaNSCCOCe OOO USC ESéCeséonenesssne

iii

Gread v.—Georais, 426 U. S. 153

( DUROMUERGOO060000660600 06600 Sébecnecees ccoebedosdedascl

H » 420 So.2d 872

a. DUE UGASEdSOCUES Ed be odsdsendencedetmboccicoseobsieue

Kangtft—e. State, 371 So.2d 1007

(Pla. PEE SEPP TTT TT TT LETT TTT TT eer errr |

Beckett Y. Chae, 438 U.S. 586

SUPUEE ESRC SORE eecccdbenosdocccceccceésoeseococestodes 10, 13

Michigan vy, Mosley, 423 U.S. 96

FOU MES CRGASe Shoes cocsvcescncccescccosoenccveccoecdite 16, 17

, 390 So.2d 332

(Pla. tiie nh checks deen teeeeseodéee ces ceectésécncenall

Mitanda v1 Aiizsia, 348 U.S. 436

( SEPP PTT Ter TTT ELT TTT rier rrr errr | 16

357 U.S. 449 Se TELS scoddas odddecnv agian] too

Nash v. Estelle, 597 F.2d 513

Cir. BPPEP Co sbeccgececeseccccasscececesosooccoooles 18

+ 395 So.2d 170 3

(Pla. A PEEP POT TCT OT EEE TCT ET TT Tee TT ee

Proffitt y, Florida, 428 U. Ss. at 260

( DN SOSESSE OR OCADSS EG esbvecccosccesscoesédéenecéiess die 25

s 337 So.2d 783

(Pla. DP AChSCeGeuNedoereoed60nses bends becebebesassanal

Ruffin v. State, 420 So.2d 591

(Pla. iN Bladn55060606000006600060 0600 08000660005 0001

442 U.S. 510

ers £2668 6nbd ue bed ob’ ca0é6bsccekstabbiecesuial

386 So.2d 525

(Pla. 1980), cert. denied,

449 U.S. 1103 GSFGS) cocccccccccocccccecccccecccoeods 12, 14

Shriner v. maitwiiai’ 715 P.2d 1452

7 PawasSheb 660b000nbs0e0sesosratdcebetooceencual

Smith v. <1 25f 400 S0.2d 956

a. per trey) TIT TLUPT TLL Trier eT Terre

Songer v. SHSES 419 So.2d 1044

a. COPPER Ome eee eee eeeseeeeeeseseseseseseelay 22, 25

State v. PL4¥ehy 283 So.2d 1

a. DP Sh NS GOdRkwebeonnsececes bedecieetasoncennee

422 So.2d 827 1

SOEUR G9.600606.6066006060060000660ednenesuE

Thomas v. Staite, 421i So.2d 160

a. PEeObS bb adoh66nG000606060666000606e sone nto

TOCEESSS v. Wainwright, 601 F.2d 768

Gale BUUET Oh 64060 600600560 06000 d00s00e0000n8seeee 18

Straight v. W

United States v. Frady, 456 U.S. 152

WEMEDE SEOES 060006646646 Cd 06600006 6edeCee CEOS CeESOCRE 21

mainrigt v. Sykes, 433 U.S. 72

SCOSOSOOSOOCCEOOHSE OOH EOOLESEESOOOOESEOOOOCOOOO HOON 21

ma sr stg sen Vv. Malton 655 P.2d 1346

Cir. PGabb det SESO 666600608060 660 86060 0006068066 680K

Zant v. Stephens, _..._ U.S. _.__

Beuke 733 ( err rT Tr TTT TTT eT Tr rT Terr

OTHER AUTHORITIES

United States Constitution,

Amendments V, VIII, WWV ia cccccccccccccccsccccscccesess cPassim

Section 921.131(6), Plorida Statutes (1973) ..cccccccvesccesseela

DeSGsGs Baeetars 26 United States Codec cocccccossocvecoovcesswen

1. Whether the State “scrupulously honored” Petitioner's

Pifth Amendment right to cut off questioning, where, after

approximately eight hours of interrogation, Petitioner requested

no further questioning and the interrogation merely stopped for a

"minute or two" and then resumed without any additional Miranda

warnings or waiver?

2. Whether the testimony of a priest who had witnessed an

execution « electrocution should have been precluded from the

jury as it denied Petitioner the benefit of the judgment of the

community in violation of the Eighth Amendment?

3. Does the consideration of nonstatutory aggravating

factors in imposing a sentence of death conflict with the

reliability required for capital sentencing by the Eighth and

Pourteenth Amendments?

4. Did the Eleventh Circuit err in upholding jury

instructions that a reasonable juror might well have understood

to preclude consideration of nonstatutory mitigating

circumstances through:

(i) a disregard of Sandstrom vy. Montana, 442 U.S. 510

(1979), thus creating a conflict with the Fifth Circuit's

condemnation of identical jury instructions in

Washington vy. Watkins, 655 F.2d 1346 (5th Cir. 1981),

cert. denied, 456 U.S. 949 (1982); and

(ii) a failure to recognize that instructional error

under Lockett vy. Ohio, 438 U.S. 586 (1978), infects a capital

sentencing trial with prejudice sufficient to satisfy the

requirements of Wainwright vy. Sykes, 433 U.S. 72 (1977), and

United States vy. Prady, 456 U.S. 152 (1982)?

5. Does the failure of the Sentencing Court to set forth

mitigating factors it found, deprive a defendant of the right to

meaningful review?

6. Does the Plorida Supreme Cout's systematic, secret, ex

parte solicitation and consideration of extra-record, prison-

generated psychological evaluations and similar meterials of

questionable reliability concerning capital appellants in cases

pending before it for sentencing review violate the Fifth, Sixth,

Eighth, and Fourteenth Amendments?

vii

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

CARL ELSON SHRINER,

Petitioner,

vs.

LOUIE L. WAINWRIGHT, Secretary,

Plorida Department of Corrections,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE ELEVENTH CIRCUIT

Petitioner, CARL ELSON SHRINER, prays that a writ of

certiorari issue to review the judgment of the United States

Court ot Appeals for the Eleventh Circuit filed September 9,

1983. Rehearing was denied on November 4, 1983.

CITATIONS TO OPINIONS BELOW

The opinion of the court of appeals is reported at 715 F.2d

1452 (llth Cir. 1883), and is set out at pages la-9a of the

Appendix.*/ The order denying rehearing is noted at P.2d

—— (llth Cir. 1983).

JURISDICTION

The judgment and opinion of the court of appeals were filed

on September 9, 1982, and Petitioner's timely petition for

rehearing was denied on November 4, 1983. Jurisdiction of this

Court is invoked under 28 U.S.C. §1254(1).

2/ Citations to the Appendix accompanying this Petition are

designated __a. Citations to the record of the state trial are

Gesignated by T..... Citations to the transcript of the

suppression hearing before the judge are designated by S._.

“ONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Pifth Amendment to the Constitution

which provides in relevant part:

No person...shall be compelled in any criminal

case to be a witness against himself...;

the Sixth Amendment to the Constitutio which provides in relevant

pact:

In all criminal prosecutions, the accused shall

enjoy the right...to be confronted with the

witnesses against him...and to have the assistance

counsel for his defense;

the Eighth Amendment to the Constitution which provides in

relevant part:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted;

and the Fourteenth Amendment to the Censtitction which provides

in relevant part:

[N)or shall any State deprive any person of life,

liberty, or property, without due process of law....

It also involves Section 921.141, Florida Statutes (1973), which

is set out at pp. lla-l2a of the Appendix.

STATEMENT OF THE CASE

A. Course of Prior Proceedings

Petitioner was convicted of first degree murder, and

sentenced to die on April 29, 1977. His conviction was affirmed.

Sbhriner v. State, 386 So.2d 525 (Pla. 1980), cert, denied, 449

U.S. 1103 (1981). He joined the class of death sentenced

prisoners that unsuccessfully petitioned the Florida Supreme

Court for relief based on that court's consideration of extra-

record psychological material in affirming death sentences.

Brown vy. Wainwright, 392 So.2d 1327 (Fla.), cert, denied, 454

U.S. 1000 (1981).

Petitioner's execution was set for April 21, 1982. On April

13, he filed a writ of habeas corpus in the Northern District of

Plorida. It was denied. The Eleventh Circuit granted a stay

pending appeal on April 20, 1982. The panel opinion on the

merits rejected Petitioner's claims. Shriner vy, Wainwright, 715

P.26 1452 (llth Cir. 1983). Rehearing was denied on November 4,

1983. Shriner_v. Wainwright, _ F.2d _._ (llth Cir. 1983).

B. Facts Relevant to the Questions Presented

(1) Petitioner's Challenge to the Admission of his Post-

Arrest Custodial Statement at his State Court Trial.

The Petitioner, CARL ELSON SHRINER, was tried and convicted

in the Sta#e of Plorida for the capital offense of first degree

murder, a robbery-killing of the night cashier of a Majik Mart

food market, in Gainesville, Florida on October 22, 1976.

Petitioner was sentenced to death on April 2, 1977 in the Alachua

County Court.

There were no witnesses to the crime. Two women whom the

State claimed were in the store just before the robbery-killing

were unable to identify the Petitioner. (T, 445-456). A .38

caliber pistol - claimed by the State's ballistics expert to be

the gun which caused death - was recovered from the house (S, 46-

56) where Petitioner was living together with others.* What

appeared to be the gun was depicted in a photo in which Carol

Griffis appeared alone (T, 623-624) and Petitioner in his oral

statement stated that the gun was stolen by someone other than

the Petitioner and that it was often kept in Carol's car. (T,

692). There were no fingerprints at the scene or on the gun. (T,

507-620). The State's most incriminating evidence - and the sole

evidence directly linking Petitioner to the killing - was the

Petitioner's oral statement admitting the killing.

The defense argued that the gun belonged to Carol Griffis,

with whom Petitioner was living, and that he had confessed to

*The police recovered .38 caliber bullets in the room which

Petitioner was sharing with his friend, Carol Griffis.

Carol Griffis consented to the search of the room, as did

Petitioner. The Rapps consented to the search of the

portion of the house where they lived. The gun was

recovered in the Rapp's children's room. (S&S, 46-53).

protect her from prosecution.* (T, 759-770-771). The defense

called no witnesses. Prior to trial th» defense moved to

suppress the Petitioner's incriminating statement and other

incriminating evidence, and the trial court denied the motion (5S,

23-24,63,144).

While on patrol duty at approximately 4:15 p.m. Deputy

Denson stopped the car in which Petitioner was a passenger for

the sole reason that Petitioner bore a “striking resemblance” to

the peapest described in a bulletin, in connection with two

recent robberies and a robbery~-killing. (S, 7). After giving

Miranda warnings, Denson proceeded to conduct a field interview

which consisted of questioning the Petitioner with respect to his

name, address, occupation and social security number. (S, 8,16,

T, 557). Petitioner was cooperative, unevasive and responded to

all questions. (T, 561). He identified himself and produced a

valid Florida driver's license that showed his present address in

Gainesville. (S, 16,17).

After consultation with two other law enforcement persons

who responded to the stop, it was decided to take Petitioner to

the station “for questioning". (S, 9,10).

Petitioner was questioned by numerous officers from 4:30

p-m., when he arrived at the Alachua Sheriff's office, until 7:30

p-m., whe... he was taken to the Gainesville Police Department for

more intensive questioning concerning the robbery-killing at the

Majik Mart. (S, 113,114). He was questioned on the Eight Days

Inn robbery and Majik Mart robbery~killing during this period and

Genied any knowledge of either event. During this period at the

Sheriff's station house, Petitioner was advised of his Miranda

warnings on a single occasion-at 5:06 p.m. (S,123-124; T,568-569)

* This defense was supported by the fact that prior to 2:00

a.m. on the morning of interrogation, Petitioner had

maintained that he had stayed in the car while John Rapp and

Carol Griffis entered the Majik Mart at the time of the

robbery~killing.

Although Petitioner was allegedly charged with the Eight

Days Inn robbery at the Sheriff's office shortly after 5:06 p.m.,

he was not booked at the jail on that charge until 4:00 a.m. the

next morning, after he had confessed to the Majik Mart robbery-

killing and to the Eight Days Inn robbery. (S, 123-124).

Petitioner testified at the suppression hearing that upon arrival

at the Sheriff's office he was placed at a desk and told to write

down everything he had done during the past four days. (RRS, 5).

He was told by an officer that if he cooperated “this whole thing

could be settled and I could be on my way.” (RRS, 97).

Thereafter, Petiticner was questioned incessantly at the

Gainesville Police Department for over eight hours - from his

arrivai at approximately 7:30 p.m. until approximately 4:00 a.m.

when he was booked.

At the Gainesville Police Department Petitioner was advised

of his Miranda warnings, however, they were given solely in the

context of advising Petitioner of his rights with respect to

submitting to a polygraph test. (S, 69,85,86). This was the

last time that Petitioner was to receive the Miranda warnings in

any context.

Petitioner testified that early that night at the police

station a “Detective Price" tried to question him about the

murder and that he responded that he did not want to talk to him

and that he wanted an attorney present. (RRS, 92). During this

discussion the detective stated that he knew that Petitioner had

killed “that woman" and was “going to get me the electric

chair."* (RRS 92,99). Petitioner stated that he requested an

attorney several times that night. (RRS, 92-93).

The police began intensive questioning about the Majik Mart

robbery~murder and the Eight Days Inn robbery upon completion of

the polygraph test. No additional Miranda warnings were given.

The primary interrogators were Police Sgt. Blitch and Assistant

State Attorney Nilon. All of the interrogation occurred in the

10' x 10' polygraph room while Petitioner was cuffed to the

chair. (8, 67-68). Except to go to the bathroom, Petitioner did

not leave that room between 9:00 p.m. and 3:30 a.m.

Petitioner told four distinct versions of events during the

period of interrogation between 7:30 p.m. and 4:00 a.m. (1)

Petitioner denied any knowledge of the Majik Mart robbery~killing

and the Eight Days Inn robbery from 4:30 p.m. until after

completion @f the polygraph test - sometime between 9:17 p.m. and

10:15 p.m. (8, 70-114-115). (2) Thereafter, Petitioner stated

that he knew something about the Majik Mart incident and that

"they" did it. He further elaborated that, not knowing at the

time what had happened, he had remained in the car with the

windows up listening to the stereo while “they” entered the Majik

Mart on the morning of the robbery-killing and later returned to

the car. Petitioner stated that he subsequently learned, through

the media, that a robbery-killing occurred there that night.

Petitioner refused to state who “they” were. At this time Sgt.

Blitch was questioning Petitioner. (S, 72-74). (3) At 11:30

p-m., still pursuant to questioning by Sgt. Blitch, Petitioner

stated that “they” were John Rapp and Carol Griffis, who resided

at the same address as Petitioner. Carol was Petitioner's

girlfriend with whom he was sharing a room at the house.

Petitioner admitted that he committed the Eight Days Inn robbery

later the same night, after one of the others in the car gave him

the gun.** (S, 75,92). (4) Pinally, at 2:00 a.m., while being

questioned by Sgt. Blitch alone, Petitioner stated that he alone

had robbed the Majik Mart and shot the cashier.

* This conversation, according to Petitioner, occurred

shortly after Petitioner arrived at the Gainesville Police

Department. Detective Price, in rebuttal, denied that he

made the statement concerning the electric chair and denied

that Petitioner had asked him for an attorney. (&, 127).

He stated that he saw the Petitioner for the first time at

2:30 a.m. (S, 128).

** Petitioner refused to state who handed him the gun.

Petitioner was also questioned further with respect to the Eight

Days Inn robbery by Blitch alone and by Blitch and Nilon. (T,

685-686) (T, 714, 725-726). Interrogation ceased at

approximately 3:45 a.m. and Petitioner was thereafter booked for

both charges. (S, 79-80).

Immediately after the third version, wherein Petitioner

identified Carol Griffis and John Rapp as the persons who went

into the Majik Mart, Sgt. Blitch recommended that Petitioner

repeat this statement to Assistant State Attorney Nilon "to hear

his side or the story in case they [Carol Griffis and John Rapp]

might be arrested at a later date and try to pin it on him." (5S,

76,94). Petitioner acquiesced. Nilon came in and Petitioner

repeated the statement to Nilon and Blitch. (S, 76).

At 12:15 a.m. on October 23, (S, 78) Sgt. Blitch left the

Petitioner alone with Assistant State Attorney Nilon who

continued the interrogation. Sgt. Blitch did not return until

1:30 a.m. (S, 78).

When Assistant State Attorney Jim Nilon first spoke to

Petitioner, around 11:30 - 11:45 p.m. (S, 92), Petitioner told

him to not take any notes. (S, 96). Nilon never informed the

Defendant that anything Petitioner stated orally would and could

be used against him. Instead, Nilon simply complied with

Petitioner's request, and put his pad down. (S, 104,106).

Petitioner made several futile attempts to exercies his

Pifth Amendment privilege to cut-off questioning. Sgt. Blitch

testified at the suppresssion hearing as follows:

Q. Did he [Petitioner] ever ["during that time from

nine o'clock until two thirty a.m...."] tell you

he wanted to stop talking or remain silent?

A. No sir, he did not. At times he would say, "Well,

I'm not going to answer that", but later he would

come back and usually he would give me more than I

really anticipated." (S, 90).

The testimony of Assistant State Attorney Nilon reflects

that Petitioner futilely tried to cut-off questioning. During

the first interrogation with Nilon alone, which began at

approximately 12:15 a.m., after Petitioner stated who “they”

were, Petitioner told Nilon that he did not want to answer

further questions. At this point in time Petitioner had been

under interrogation for eight hours.

The record at the suppression hearing reflects the following

testimony on Nilon's direct examination:

Q. Did he ever ask to stop talking or remain silent?

A. Yes, to a certain extent. What he did, in the first

conversation that I had with him afer Investigator

Blitch had left the room particularly in reference

to the Eight Days Inn robbery, he told me certain

things that had happened in the Eight Days Inn

robbery and when I asked him particularly about

the gun that he used in the Eight Days Inn robbery

he said to me something to the effect, “Well, right

now it's like I'm crazy. It's like I'm nuts." I

said, “Weli, Mr. Shriner..." I don't remember what

I said but I said "It's not like you mean you are

insane." He said, "No." I said ptou_pgan you don't

oe to answer any more questions? And he sa

ust sat ere for a minute. I think

is that point I asked him something about his family

background and he answered that, and that's the only

time I can think of he even alluded to the fact that

he didn't want to answer any questions or make any

further statements or anything.” (5S, 102).

At the trial, on direct examination, Assistant State

Attorney Nilon re-confirmed that Petitioner at one point, had

refused to answer further questiosn:

Q. Why did you talk -- allright. At some point he quit

giving you specifics about that evening?

A. Yes.

Q. All right. The topic changes?

A. Yes, we start talking about his personal life, his

family. (T, 709,710).

On cross-examination at trial, however, Nilon changed his

testimony. His question to Petitioner was no longer whether

Petitioner did not want to make “any further statement..." (5,

101), but rather whether Petitioner wanted to make no further

statement "about that”. (T, 721). Moreover, whereas at the

suppression hearing the area of questioning which immediately

preceded this conversation concerned the gun used in the Eight

Days Inn robbery (S, 101), at trial Nilon stated that it was

questioning concerning Petitioner signing his parents’ Phoenix,

Arizona street residence to the motel registration folio

immediately before the Eight Days Inn robbery. (T, 721).

Confronted with Petitioner's assertion of the Pifth

Amendment, Nilon did not advise Petitioner of his Miranda advices

but, instesd, simply stopped questioning on both offenses

momentarily and then immediately resume questioning on another

area. (T, 722, 723). Questioning continued, and one and one-

half hours later the police finally got a confession.

The Petitioner testified at the suppression hearing that he

requested an attorney several time that night and requested no

further questioning. (RRS, 92, 93). Petitioner testified that

he could not recall telling Sgt. Blitch and Assistant State

Atorney Nilon that he did not want to talk about the crimes

without a lawyer, but he stated that he did recall making that

request to others who spoke to him. (RRS, 100-101, 103-103).

Petitioner testified that he was unable to recall “half of the

statements...that I was supposed to have said.” (RRS, 94).

Throughout the twelve hours of questioning Petitioner stated that

he “kept asking for coffee", and was given a couple of cups.

(RRS, 95). Petitioner stated that he made the statements because

he was “tired and upset” and because they were holding Carol whom

the police told him was under arrest for the murder and other

offenses. (RRs, 94, 105).

The Eleventh Circuit affirmed the denial of the motion to

suppress on the basis of what Prosecutor Nilon had thought

Petitioner's intent was concerning questioning. 715 F.2d at

1454. The Eleventh Circuit concluded that the record "fairly

Supported” the state court's finding that Petitioner merely

wanted to limit the subject matter, not end all questioning, even

though the record showed that Prosecutor Nilon had simply

"guessed" at Petitioner's intent rather than make any inquiry to

Clarify it. Prosecutor Nilon's “guess” was not consistent with

Petitioner's interests.

2. Zhe exclusion of testimony of a clergyman who had

Eighth Amendment.

Petitioner was not allowed to present to the jury a

clergyman who had witnessed an electrocution, on the grounds that

it was Pa. oa (T, 870).

As set forth in the Eleventh Circuit's decision,

Lockett vy. Ohio, 438 U.S. 586 (1978), stated that its rule is

limited by notions of relevancy. But is “relevancy”, for Lockett

purposes, defined in terms of state evidence law or in terms of a

federal standard drawn from the rationale of Lockett? Green

we. Georgia, 442 U.S. 95 (1979), which held that the due process

Clause bars trial judges from rigidly applying local hearsay

rules to exclude evidence admissible under Lockettt, suggests

that a federal standard must be applied. Thus it isn't enough to

say the evidence, to-wit: Clergyman's testimony regarding

electrocutions, was irrelevant under Florida law. The issue is

whether it was relevant to the task which a capital jury must

perform. The issue of whether the applicable standard of

relevancy would be the local relevancy rule or a federal standard

Gown from the Eighth Amendment needs to be addressed and

resolved.

3. Consideration of non-statutory aggravating factors in

imposing a sentence of death conflicts with the

reliability requirements for capital sentencing.

dury Consideration of Nonstatutory Aggravating Factors

At the advisory hearing on sentence the jury was instructed

that:

"Your advisory sentence should be based upon the

evidence which you have heard while trying the guilt or

innocence of the Defendant and evidence which has been

presented to you in the proceedings." (T, 898).

At the advisory hearing on sentencing, the prosecutor argued

to the jury that they could consider in aggravation that

Petitioner "create a great risk of death to many people" by

virtue of having committed the separate offense of robbing the

Eight Days Inn, and coming close to killing the hotel clerk (T,

883). This was clearly outside of what the jury could have

properly considered. Elledge vy. State, 346 So.2d 998 (Fla.

1977); Piuveive sy. shale, 337 So.2d 783 (Pla. 1976)%

Next, over. objection, the trial court allowed the prosecutor

to argue that all deaths, including the instant offense, to a

civilized human being, are heinous, atrocious, and cruel if they

are unlawful deaths. (T, 884). Such argument of statutory

factors was improper, and incorrect as a matter of law.

State v. Dixon, 283 So.2d 1 (Fla. 1973), Kampff vy. State, 371

So.2d 1007 (Pla. 1979); Mines vy, State, 399 So.2d 332 (Fla.

1980). Additionally, the prosecutor improperly argued the

nonstatutory factors of the propriety of the death sentence, its

deterrent effect, and his personal opinion as to both. (T, 875-

880).

The effect of the jury charge herein was to instruct the

jury to consider everything they heard, includin the nonstatutory

aggravating circumstance of the Eight Days Inn robbery and the

Clerk's narrow escape from death.

Judicial Consideration of Nonstatutory Aggravating Circumstances

In imposing death, the trial judge expressly found and

considered the following nonstatutory aggravating circumstances:

(1) Petitioner's extensive juvenile delinquency record between

1963 and 1982, (2) Petitioner's extensive prison disciplinéry

record between 1972 and 1976, (3) the “likely” commission of

other robberies for which Petitioner was not convicted, (4)

Petitioner's repeated self-inflicted wounds, in apparent suicide

attempts, while awaiting trial, and (5) Petitioner twice asking

the jury to recommend death (TS, 10-14; Written Sentence RR, 44-

47).

On appeal the Plorida Supreme Court stated:

"It is not clear, however, whether the judge considered

appellant's disciplinary record as an aggravating

circumstance. Even if we assume that the disclipinary

problem was so treated, the error was harmless."

, 386 So.2d 525 at 534 (Pla. 1980).

In light ot Barclay vy. Florida,

3418, 77 L.Ed 2d 1134 (1983), the Eleventh Circuit stated it was

U.S. , 103 &.Ct.

helpless t6 overturn this “harmless error" determination. 715

P.2d at 1458.

4. Petitioner's Challenge to Instructions That Might Well

This issue is substantially similar to the question

presented in Ford vy. Strickland, 696 P.2d 804 (llth Cir. 1983)

(en banc), cert. denied. In this case, the instructions to the

jury at the penalty phase were that:

The aggravating circumstances which you may consider

are limited to such of the following as may be

established by the evidence....[The court listed the

statutory aggravating circumstances)

The mitigating circumstances you may consider if

established by the evidence are as follows....[The

court listed the statutory mitigating circumstances]

(T, 897,898).

Unlike Pord, however, there is nothing in this record that

suggests that the trial judge considered nonstatutory mitigating

factors, that he understood they could be considered, or that

such an impression was conveyed to the jury. In fact, the trial

judge stated at sentencing that he could find no mitigating

circumstances using the statutory guidelines established by the

legislature. (TS 12, 13).

The trial judge limited his consideration of mitigating

factors based upon his belief that as a matter of law,

consideration of mitigating factors was limited to only those

specifically enumerated in Florida Statute §921.141(6). (RR, 44-

47). Specifically, the trial judge's written findings in support

of death included:

The Court finds, with the possible exception of No. 6

above, there are no mitigating circumstances in this

case. An examination of the psychiatric evaluation in

this case, found both in the presentence investigation

from the Department of Offender Rehabilitation and by

the various psychiatrists appointed to representthis

Defendant prior to trial, he has been diagnosed as a

"sociopathic personality". An examination of these

reports, however, does not lead one to the conclusion

that his capacity is diminished thereby.

The Court finds that the aggravating circumstances far

outweigh the mitigating circumstances. (RR, 46).

The "No.6" referred to was Pla. Stat. §921.141(6)(f), of a

mitigating circumstance reading:

"Whether the capacity of the Defendant to appreciate

the criminality of his conduct or to conform his

conduct to the requirement of law was substantially

impaired."

There was no contemporaneous objection to these

instructions. In federal habeas, Petitioner argued that he had

not committed a procedural default because the instructions were

consistent with Plorida law and federal constitutional doctrine

as they existed at that time. Under Cooper vy. State, 336 So.2d

1133 (Pla. 1976), FPlorida law limited consideration to statutory

mitigating circumstances. See Barclay vy. Florida, U.S.

, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983); Perry v. State, 395

So.2d 170, 174 (Pla. 1981) (in excluding nonstatutory mitigating

evidence under Cooper, trial judge “followed the law as he

believed it was being interpreted at the time of trial").

Petitioner's trial was held before the decisions in

Lockett v. Ohio, 438 U.S. 586 (1978), and Songer vy. State, 365

80.24 696 (Pla. 1978), which set the matter straight as a matter

of both Plorida and federal constitutional law.

5. Zhe Sentencing Court's failure to set forth mitigating

meaningful review.

The trial court's sentencing order failed to consider

nonstatutory mitigating factors and failed to set forth

mitigating factors it may have found. The sentencing order read:

"The Court finds that the aggravating circumstances far

outweigh the mitigating circumstances."

The Eleventh Circuit decision notes that:

"There is no indication that the Florida Supreme Court

limited its review to the absence of only statutory

mitigating circumstances. Indeed, the Court

specifically holds ‘(t]he record also supports the

finding of no mitigating circumstances.’

State, 386 So.2d 525, 534 (Pla. 1980)." 715 P.2d at

1458.

The decision fails to acknowledge that the Plorida Supreme

Court was gpnly addressing statutory mitigating factors.

6. Petitioner's Challenge to the Florida Supreme Court's

Whose Appcals Were Before the Court:

Since at least as early as 1975, the Supreme Court of

Plorida has, without the knowledge of the appellants or their

counsel, requested, received, and considered materials from

prison officials relating to death-sentenced appellants in

pending appeals. The existence of this practice has never been

disputed.

Mr. Shriner was one of the petitioners in the original

habeas filed in the Plorida Supreme Court. Brown v. Wainwright,

392 So.2d 1327 (Pla.), cert, denied, 454 U.S. 1000 (1981). The

Eleventh Circuit rejected Mr. Shriner's Brown claim based on the

decision in Pord vy. Strickland 696 F.2d 804 (llth Cir. 1983),

cert, denied. 715 F.2d at 1457. In addition, the Eleventh

Circuit denied Mr. Shriner's discovery request to seek proof that

nonrecord information had been used in his direct appeal.

REASONS POR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED BECAUSE THE COURT OF APPEALS

MISAPPLIED THE DECISIONS OF THIS COURT AND CREATED CONFLICT

WITH PRIOR APPELLATE DECISIONS WHEN IT UPHELD THE ADMISSION

OP PETITIONER'S POST-ARREST CUSTODIAL STATEMENT ON THE

FINDING THAT PETITIONER'S RIGHT TO CUT-OFF QUESTIONING WAS

"SCRUPULOUSLY HONORED" EVEN THOUGH PETITIONER'S CLEAR

REQUEST TO HAVE QUESTIONING CEASE REFLECTED AN "AMBIGUOUS"

DESIRE TO REMAIN SILENT.

This case presents important questious concerning the

application of this court's decisions in Miranda vy. Arizona, 384

U.S. 436 (1966), and Michigan v. Mosley, 423 U.S. 96 (1975), and

Nash_v. Estelle, 597 F.2d 513 (Sth Cir. 1979), and

Thompson vy. Wainwright, 601 P.2d 768 (5th Cir. 1979).

State Prosecutor Nilon asked, “You mean you don't wart to

answer any more questions?" Petitioner said, "Yes." Prosecutor

Nilon “thought” Petitioner wanted questioning to terminate only

in relation to the robbery. So a few minutes later Prosecutor

Nilon aske@ about Petitioner's family, and the interrogation

resumed. ,

On its face, Petitioner's request was not ambiguous. It was

a clear request that questioning stop. Ambiguity arose when

Prosecutor Nilon weighed in his mind what Petitioner was

requesting, rather than simply terminate questioning pursuant to

Petitioner's request. Prosecutor Nilon, perhaps in furtherance

of the investigation, concluded that Petitioner's request was to

terminate questioning only as to the robbery but not as to the

murder. If that was Petitioner's intent, why didn't Petitioner

say “I don't to talk about the robbery, but I'll tell you about

the murder."? Instead, Prosecutor Nilon simply chose to decide

what Petitioner meant rather than make inguiry.

The Eleventh Circuit relied upon and adopted the state court

finding that Petitioner merely wanted to limit the subject

matter, not end all questioning. 715 F.2d at 1455. It is

strongly urged that the type of interrogation and conduct of the

prosecutor in this case falls far short of “scrupulously

honoring" Petitioner's Pifth Amendment right to cut-off

questioning. At the very least, to get from the words Petitioner

said to the construction placed upon them by the Eleventh Circuit

Court required a leap of inference that suggests that

Petitioner's request was “ambiguous". The Eleventh Circuit's

failure to independently review this mixed question of law and

fact has simply allowed this error to progress one step further.

In Micanda, supra, the Court recognized an accused's right

to cut-off questioning before and during interrogation:

"If the individual indicates in any manner at any

time prior to or during questioning, that he wishes

to remain silent, the interrogation must cease;...

without the right to cut-off questioning, the setting

of in-custody interrogation operates on the individual

to overcome free choice in producing a statement

after the privilege has been once invoked." Miranda

we Arizona, supra, 384 U.S. at 473-474.

The Court, in Michigan vy. Mosley. agupra, construed this

passage ofsMiranda. The Court rejected the interpretation that

this proscription precluded further interrogation under any

circumstances. In so doing, however, the Court similarly

rejected an interpretation at the other extreme, that would

permit recurring rounds of questioning, which is what occurred

here.

"To permit the continuation of custodial interrogation

after a momentary cessation would clearly frustrate

the purposes of Miranda by allowing repeatéd rounds

of questioning to undermine the will of the person

being questioned.” Michigan v. Mosley. supra,

423 U.S. at 102.

The Court held that in such cases the test of admissibility

is whether the authorities “scrupulously honored" the accused's

right to cut-off questioning:

"We...conclude that the admissibility of statements

obtained after the person in custody has decided to

remain silent depends under Miranda on whether this

‘right to cut off questioning’ was ‘acrupulously

honored.' (footnote omitted)

Aupra, 423 U.S. at 104.

The facts in Petitioner's case do not meet that test.

In Michigan vy. Mosley, 423 U.S. 96 (1975), a defendant who

had been arrested in connection with certain robberies and

advised of his rights pursuant to Miranda, chose not to discuss

the robberies, and accordingly interrogation was ceased. Not

until two (2) hours later, however, and after being given Miranda

warnings again by another detective, the defendant was questioned

solely about another unrelated crime, whereupon the defendant

made an inculpatory statement. The Court held this statement to

be admissible because the defendant's right to cut-off

questioning had been scrupulously honored in that the police had

immediately ceased the robbery interrogation when the accused

invoked the Fifth Amendment. Mosley was placed in a detention

celi and not questioned again until two (2) hours later, after

fresh Miranda warnings and a clear waiver.

A reasonable and faithful interpretation of Miranda was

concluded to encompass adoption of “fully effective means...to

notify the cece of his right of silence and to assure that the

exercise of the right will be scrupulously honored..."

Michigan vy. Mosley, supra. Therefore to permit the continuation

of custodial interrogation after only a momentary cessation would

Clearly frustrate the purposes of Miranda by allowing repeated

rounds of questioning to undermine the will of the person being

questioned. Michigan vy. Mosley. supra.

Here, questioning merely stopped momentarily and then

immediately resumed after shifting to the innocuous area of

Petitioner's family background. Later, the interrogation was

brought back to the homicide and a confession was ultimately

obtained. No new Miranda warnings were issued. No waiver

inguiry was conducted. Petitioner's requests for counsel were

ignored. No Miranda warnings were ever given for the murder of

Judith Ann Carter.

The record at the suppression hearing reflects that

Petitioner requested all questioning to cease, and the

Petitioner's affirmative response to the guestion "Do you mean

you don't want to answer any more questions?" was clearly the

exercise of his Pifth Amendment privilege to stop the

interrogation. Equally clear is that the record here is one of

scrupulous disregard and indifference to Petitioner's Miranda

rights and that the type of conduct employed in interrogating

Petitioner was that condemned in Mosley and should not be

permitted to stand.

While Petitioner contends his request e¥ cut-ote questioning

was clearly communicated to Prosecutor Nilon, certainly

Petitioner's request was at the least, “ambiguous”. Presently,

it is not set forth what standard a court should use to decide

whether a request is “ambiguous", but certainly the test used by

the Eleventh Circuit, to-wit: "What the officer thought"

(Prosecutor Nilon), is a subjective, meaningless standard which

has no basis in the law. Consequently, this issue needs to be

resolved and the "test" needs to be spelled out.

Assuming Petitioner's request was ambiguous, what is the

scope of questioning that is permissible after that point?

Nash vy. Estelle, 597 F.2d 513 (5th Cir. 1979), and Thompson vy.

MNainwright, 601 F.2d 768 (5th Cir. 1979) held that following an

equivocal request for counsel, further questioning was limited to

Clarify the request. Petitioner's request dealt with his right

to remain silent.

The Eleventh Circuit's decisior fails to indicate whether

the Nash - Thompson requirement of clarifying equivocal requests

for counsel apply to requests to remain silent. This leaves

unresolved whether the standards for invoking these different

rights are the same. Do Nash and Thompson mandate that after an

ambiguous statement that might be construed as a request to cut-

off questioning then subsequent questioning is limited to

attempting to determine what the suspect was trying to say? In

Petitioner's case, no effort was made to clarify Petitioner's

request, questioning simply resumed.

The Eleventh Circuit avoided this substantial question by

adopting the state court's finding that Petitioner merely wanted

to limit the subject matter, and not end all questioning.

Petitioner strongly urges that the record did not “fairly

support" this factual determination, and that it is a mixed

question of law and fact that this Court needs to review.

II. THE COURT SHOULD GRANT THE WRIT TO DETERMINE WHETHER THE

EXCLUSION OF TESTIMONY OF A CLERGYMAN WHO HAD WITNESSED AN

EXECUTION PRECLUDED PETITIONER THE BENEFIT OF THE JUDGMENT

OF THE COMMUNITY IN VIOLATION OF THE EIGHTH AMENDMENT.

The testimony of the clergyman was relevant to the “evolving

standards of decency” embodied in the Eighth Amendment. This

Eighth Amendment relevancy was not addressed in Lockett, but the

Eleventh Circuit interpreted Lockett as excluding this evidence

as irrelevant, since it did not bear on the defendant's

character, £ecord, or offense.

The 1976 Cases held that capital punishment may be imposed

constitutionally only because it comports with public attitudes

and because it might serve specific penalogical purposes.

Because an execution that offends public attitudes or that does

not serve valid purposes is unconstitutional, compliance with the

Eighth Amendment requires that the capital jury be permitted to

hear any evidence tending to prove that the penalty, execution by

electrocution, is appropriate.

The “evolving standards of decency" discussed in

Gregg vy. Georgia, 428 U.S. 153 (1976) is critical at two stages

in the legal process of deciding who dies: at the legislative

level, when the issue is what classes of people may be put to

death and at the capital sentencing level, when the issue is who

will be put to death. Initially, the legislature decides whether

electrocution will offend the dignity of a civilized society.

But the legislature isn't the exclusive repository of the

nation's evolving standards of decency. The capital jury which,

like the legislature, is a medium of public attitudes towards the

Geath penalty, must apply these standards in any given case.

The role of the jury as “conscience of the community", is to

be an informed conscience. Thus, evidence can not be excluded so

long as it “gives the jury accurate information”. California vy.

Banos, , 103 S.Ct. 3455, 77 L.Ed.2d 1171 (13983).

Evidence of what the penalty of death means and how it is carried

U.S.

out, will help the jury in deciding whether execution of this

defendant would offend evolving standards of decency.

III. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER

CONSIDERATION OF A WNON-STATUTORY AGGRAVATING FPACTOR IN

IMPOSING A SENTENCE OF DEATH CONFLICTS WITH THE RELIABILITY

REQUIREMENTS FOR CAPITAL SENTENCING.

The court below held that the improper consideration of a

non-statutory aggravating factor did not rise to the level of a

constitutional violation requiring federal habeas corpus relief.

715 F.2d at 1459. This holding was based upon

Barclay vy. Plorida, , 103 &.Ct. 3418, 77 L.Ed.2d

1134 (1983), and that it appeared the sentencing judge had found

U. s.

no mitigating circumstances and some proper aggravating

circumstances in Petitioner's case.

Pirst, Petitioner suggests that the record reflects the

sentencing Court may have found non-statutory mitigating

circumstances and simply failed to set them out. Consequently,

Barclay is not controlling on Petitioner's case, and the Eleventh

Circuit inadvertently felt bound by the Barclay decision.

In addition, Petitioner would ask the Court to review this

issue to determine if the consideration of non-statutory

aggravating factors did destroy the “procedures that are

designed to assure reliability in sentencing determinations".

IV. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER

INSTRUCTIONS TO THE JURY AT THE SENTENCING PHASE THAT A

REASONABLE JUROR MIGHT WELL HAVE UNDERSTOOD TO LIMIT HIM OR

HER TO ONLY THE STATUTORY MITIGATING PACTORS VIOLATED THE

EIGHTH AND POURTEENTH AMENDMENTS.

This question is substantially the same as that presented in

the Petitioner for Certiorari in Pord vy. Strickland, 696 F.2d 804

(llth Cir. 1983), cert, denied. Unlike Pord, there is nothing in

this record that suggests the trial judge or the jury considered

any non-statutory mitigating factors. At the time of the trial,

Florida law limited consideration to statutory mitigating

circumstances, and Petitioner's sentencing judge specifically

noted that he only followed statutory mitigating factors.

Petitioner claimed that the penalty phase instruction to the

jury did not expressly inform the jury it could consider

non-statutory mitigating circumstances, thereby leaving the jury

with the contrary impression. The instruction was not objected

to at trial nor was it raised on appeal.

Recently in identical circumstances, the Eleventh Circuit

reviewed this issue on the merits. Poster v. Strickland, 707

P.2d 1139 (1lth Cir. 1983). In Petitioner's case however, the

panel imposed the high hurdles of Wainwright yv. Sykes, 433 U.S.

72 (1977), and United States vy. Frady, 456 U.S. 152 (1982). The

Rrady hurdle noted that Shriner had not established actual

prejudice. In Foster, the Court reached the merits of this

Eighth Amendment question, though it did find a lack of

prejudice. But the Foster Court nevertheless reached the merits

of the issue and judged it by a less restrictive, constitutional

prejudice standard.

The Shriner panel should have employed the same procedure,

but since it did not, Shriner now stands in direct conflict with

Poster.

In addition to the foregoing, Hainwright vy. Sykes should not

have applied to bar this issue since Plorida does not have a

"contemporaneous objection" rule, or if it does, it is applied

arbitrarily, The Plorida Supreme Court does not in fact follow a

consistent procedural default rule that can serve as “an

independent and adequate state procedural ground that bars the

federal courts from addressing the issue on habeas corpus."

County Court of Ulater County vy. Allen, 442 U.S. 140, 148 (1979).

In his state post-conviction proceedings in Straight vy.

Wainwright, 422 So.2d 827 (Pla. 1982), the petitioner raised the

same instructional error as that presented here. Straight's

former counsel had committed the same procedural default as

Shriner's. Yet in Straight, the Plorida Supreme Court reached

the merits or the claim, 422 So.2d at 831.

This inconsistency, it turns out, is by no means rare.

Compare Alvord vy. State, 396 So.2d 184 (Pla. 1981); Smith vy.

State, 400 So.2d 956, 958-959 (Pla. 1981); Goode vy, State, 403

So.2d 931, 932 (Pla. 1981); Dobbert v. State 409 So.2d 1053, 1058

(Pla. 1982); Demps v. State, 416 So.2d 808, 809 (Fla 1982);

Songer vy. State, 419 So.2d 1044, 1047 (Pla. 1982); Antone vy.

State, 410°So.2d 157, 163 (Pla. 1982); Thomas vy. State, 421 S0.24

160, 162 (Pla. 1982) (court finds procedural defaults) with

Douglas vy. State, 373 So.2d 894, 896-897 (Pla. 1979); Adams vy.

State, 380 So.2d 423, 424 (Pla. 1980); Demps vy. State, 416 So.2d

at 809; Buffin vy. State, 420 So.2d 591, 594 (Fla. 1982); Hall _ vy.

State, 420 So.2d 872, 873-874 (Fla. 1982) (court reaches merits

Gespite failure to raise issue on direct appeal).

In effect, Florida's procedural default “rule” is merely a

device by which the state court can turn on or off at will its

receptivity to constitutional claims. Barr vy. City of Columbia,

378 U.S. 146, 149-150 (1964). See also NAACP v. Alabama ex rel,

Patterson, 357 U.S. 449, 458 (1958). The result is that, when

they subsequently present their constitutional claims in federal

habeas corpus procedings, some death sentenced petitioners are

able to obtain rulings on the merits while others are not. Since

the determination of a capital sentencing issue on the merits can

mean the difference between life and death, the lightning-like

arbitrariness of Florida's procedural default “rule” cannot be

sanctioned because it results in teh same random cruelty

condemned in Purman vy. Georgia, 408 U.S. 238 (1972).

Pinally, the Eleventh Circuit's decision seems to state that

since Shriner asked for death, he waived his right to attribute

the jury's recommendation of death to the jury instruction, and

that a “lack of prejudice" arose when Shriner requested death.

Since there can be no consent judgment of death,

Goode vy. Wainwright, 704 F.2d 593 (llth Cir. 1983), there can be

no waiver of errors in the trial merely because an accused

requests death. And to equate a “request of death” with a "lack

of prejudice” is nothing more than allowing an indirect consent

judgment ot death. Accordingly, the decision below should be

reviewed without regard to Petitioner's request for death.

Vv. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER THE

SENT ING COURT'S PAILURE TO SET FORTH MITIGATING FACTORS

IT FOUND DEPRIVED PETITIONER OF THE RIGHT TO A MEANINGFUL

REVIEW. :

The Eighth Amendment requires appellate review in capital

cases “to assure consistency, fairness, and rationality in the

evenhandea operation of state law." Profitt v. Florida, 428 U.S.

260 (1976). At the cornerstone of this mandate is the key

procedural safeguard that the findings in support of the death

sentence be clearly set forth in writing in order to permit

rational and meaningful appellate review. See, e.g... Zant v.

Stephens, _.._._ —*U.S. _.___sdi1'03':s« S.Ct. 2733 (1983) ("identify it in

writing"); Barclay vy. Florida,

(1983) (U.S. June 28, 1983) (concurring opinion) ("specific

U.S. 103 S.Ct. 3418

written findings by the trial court, setting forth the facts

underlying each aggravating and mitigating circumstance"). There

could be no way for there to be the form of meaningful appellate

review contemplated by the Eighth and Fourteenth Amendments--

assuring consistency, fairness and proportionality--without a

full revelation of all the factors relied upon by the sentencing

court. All procedural safeguards would be for naught without the

requirement of written findings. Accordingly,

"Without full disclosure of the basis for the death

sentence, the Florida capital-sentencing procedure

would be subject to the defects which resulted in the

holding of unconstitutionality in Purman vy. Georgia.”

Gardner vy. Florida, 439 U.S. 349, 361 (1977). It is thus

"important that the record on appeal disclose to the reviewing

court the considerations which motivated the death sentence in

every case in which it is imposed" in order for a state to

“administer its capital-sentencing procedures with an even hand."

id.

The sentencing court's order failed to set forth findings of

fact with regard to the mitigating circumstances he found to

exist. The sentencing judge's order indicates that he did find

and consider mitigating circumstances in imposing the death

sentence, though he did not specify which circumstances that he

considered. The judge's sentencing order "finds that the

aggravating circumstances far outweigh the mitigating

circumstances." (RR 46).

The sentencing judge's order thus failed to fully disclose

"the basis for the death sentence.” There are very plausible

mitigating factors present in this case, including alcohol and

drug consumption, a harsh childhood, self inflicted wounds

evincing emotional and mental problems, and the possibility of a

third party being the actual killer.

The Eleventh Circuit recently vacated a death sentence under

circumstances similar to the present case, where the sentencing

court had failed to clearly set forth mitigating circumstances.

Foster vy. Strickland, 797 F.2d 1339, 1347-1350 (llth Cir. 1983).

As the Court held:

"The trial judge's failure to set forth findings of fact

upon which his decision to impose the death sentence was

based violates the concern for consistency and object-

ivity in death penalty sentencing. Absent more detailed

findings..., we have ‘no meaningful basis for distinguishing

the...case in which [capital punishman] is imposed from...

the many cases in which it is not.'*

id. at 1350. The circumstances in Poster are quite analogous to

those ot the instant case, and thus Foster fully supports the

necessity of setting aside Petitioner's death sentence for the

inability to conduct “meaningful appellate review" and the lack

of “consistently applied appellate review" in this case.

VI. THE FLORIDA SUPREME COURT'S SECRET, EX PARTE SOLICITATION,

RECEIPT, AND CONSIDERATION OF REPORTS FROM STATE EXECUTIVE

AGENCIES CONCERNING CAPITAL LITIGANTS WHOSE APPEALS WERE

THEN PENDING FOR SENTENCING REVIEW PRESENT VITAL

CONSTITUTIONAL QUESTIONS WHICH SHOULD BE RESOLVED BY THIS

COURT.

| The recent opinions of the court in Barclay on the operation

of the Florida statute bear significantly on the Brown issue. In

upholding the death sentence in Barclay despite the consideration

of improper factors, both the plurality and concurring opinions

relied on the role of the Plorida Supreme Court in reviewing such

sentences as an important safeguard. The plurality canvassed the

Plorida case law and concluded that “the Plorida Supreme Court

does not apply its harmless error rule in an automatic or

mechanical fashion...[but] examine[s] the balance struck by the

U.S. at

trial judge...." , 103 S.Ct. at 3427. The

concurring opinion quoted this Court's understanding in Proffit

MeaFPlorida, 428 U.S. 242 (1976), that “the evidence of

aggravating and mitigating circumstances is reviewed and

reweighed by the Plorida Supreme Court ‘to determine

independently whether the imposition of the ultimate penalty is

warranted.’" J U.S. at , 103 S.Ct. at 3432 (quoting

Proffitt, 428 U.S. at 253, and Songer vy. State, 322 So.2d 481,

484 (1975)). But the conception of the role of the Florida

Supreme Court in reviewing death sentences considered by the

Eleventh Circuit and the Florida Supreme Court itself in Brown in

upholding the ex parte practice now under challenge is

diametrically opposed to the conception of that role held by this

Court, reached only after studying the Florida case law.

Plainly, the receipt and consideration of sensitive, ex

parte reports by the Florida Supreme Court could have and would

have had a material impact on that court's role as a reweigher

ang reviewer of death sentences. Plainly, it violated the

Constitution. “Because of the potential that the [re]sentencer

might have rested its decision in part on erroneous or inaccurate

information that the defendant had no opportunity to explain or

deny, the need for reliability in capital sentencing dictate(s)

that the death penalty be reversed." California v. Ramos,

U.S. __, 103 S.Ct. 3455, 77 L.Ed.2d 1171, (1983) (describing

Gardner vy. Florida, 430 U.S. 349 (1977)) (emphasis added).

CONCLUSION

Por the foregoing reasons, the Petition for a Writ of

Certiorari Should be granted.

Respectfully submitted,

Bnl 2 OC

DANIEL T. O'CONNELL

O'Connell and dulslander

33 North Main Street

Gainesville, FL 32601

(904) 373-9141

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been

furnished by U. S. Mail to JIM SMITH, Attorney General,

Department of Legal Affairs, The Capitol, Tallahassee, Florida,

this 9th day of December, 1983.

Rel 7 O Bob

DANIEL T. O'CONNELL

SHRINER v. WAINWRIGHT

Carl Elson SHRINER.

Petitioner-Appeliant.

Louie LL. WAINWRIGHT,

R A A Tt

- wr

No. 82-5469.

United States Court of Appeals,

Eleventh Circuit.

Sept. 9, 1983

Peutioner, who was convicted of first

degree murder and sentenced to death in a

Florida state court, appealed from an order

of the United States District Court, for the

Northern District of Florida, William Staf-

ford, Chief Judge, which denied his petition

for writ of habeas corpus. The Court of

Appeals, Roney, Circuit Judge, held that:

(1) given that petitioner, who received three

full sets of Miranda warnings, wanted to

terminate questioning only in relation to a

robbery, state attorney could continue to

ask petitioner questions about the murder

without providing Miranda warnings; (2)

in prosecution for murder, testimony of

mote! mght clerk who identified petitioner

as the robber and testified the gun he used

closely resembled the murder weapon,

which the state produced into evidence,

was admissible under Florida law to prove

identity, (3) even if state trial judge con

sidered a nonstatutory aggravating factor,

such error of state law did not rise to level

of the constitutional violation requiring fed-

eral habeas corpus relief where sentencing

jedge found no mitigaung circumstances

and some proper aggravating circumstanc-

Affirmed