Petition — JOHNSON v. FLORIDA (No. 83-5924)

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83-5924

Case No

IN THE

F LED

DEC 15 as

S*tvase

;

‘

SUPREME COURT OF THE UNITED STATES

PAUL BEASLEY JOHNSON,

rectit ner

‘

TATE FLORIDA

Resp ent

PETITION FOR WRIT OF CERTIORAR

TO THE SUPREME COURT OF FLORIDA

JERRY HILL

PUBLIC DEFENDER

TENTH JUDICIAL CIRCUIT

WILLIAM C. McLAIN

ASSISTANT PUBLIC DEFENDER

CHIEF, CAPITAL APPEALS

Hall of Justice Building

455 North Broadway Avenue

Bartow, Florida 33830

(813)533-1184 or 533-0931

ATTORNEYS FOR PETITIONER

Case No

IN THE

SUPREME COURT OF THE UNITED STATES

PAUL BEASLEY JOHNSON,

Petitioner,

STATE OF FLORIDA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

QUESTION PRESENTED

Whether for purposes of the rule announced in

Massiah v. United States a jail inmate who has previously acted

as an informant for the State continues to be an agent of the

State when he, on his own initiative but for the State's use,

elicits incriminating information from another inmate housed

near him who has been indicted for a capital offense?

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION OF THE SUPREME COURT

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUS LON

APPENDIX

Opinion of the Supreme Court of

Florida in Johnson v. State

Lae

Order denying rehearing in

Johnson v. State

3. Motion to suppress statements

6 Transcript of hearing on motion to

suppress

CERTIFICATE OF SERVICE

PAGE_NO

TABLE OF AUTHORITIES

vu . | ;

Massian v tnited States

. nA a “Fr aed ~

j - 4 i ' . ~ }

State v. Smith

ae - ee i «ie 7 ~ a 4 ‘o7?

452 ¥.2£cG & ; ATiz.iviia)

Thomas v x

HY Ja lt. rt (ath Cir. 1983

708 F.2G i3é y : ir i

nited States v. Henry

rr ve ~ -“~*? —_~erere 2

~ id« i 5

Amend . nst

Amen KIV ‘ Const

Title <é te. $1257(¢3

Rule 1? reme irt R es

OPINIONS BELOW

The opinion and judgment of the Supreme Court of

Florida sought to be reviewed via this petition is not yet

officially reported, but it is reproduced in the appendix. (Al-

10)4/

JURISDICTION OF THE SUPREME COURT

The Supreme Court of Florida issued the opinion and

judgment in this case on August 25, 1983. (Al-10) Petitioner

filed a motion for rehearing which was denied on October 26,

1983. (All) Petitioner asserted below and asserts here a de-

privation of his rights as guaranteed under the United States

Constitution Title 28 United States Code, Section 1257(3),

and Rule 1? of the United States Supreme Court Rules confers

certiorari jurisdiction in this Court to review the judgment in

this case.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

l Amendment VI to the Constitution of the United

States:

In all criminal prosecutions, the accused shall

enjoy the right...to have the Assistance of

Counsel for his defence.

2. Amendment XIV, Section 1, to the Constitution of

the United States:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall make

or enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States;,nor shall any State deprive any person

of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

l/ References to the Record on Appeal are designated by an “R"

followed by the «4 iate number. References to the

eo this petition ace dosigneted an “A" followed by

the page number.

STATEMENT OF THE CASE

A Polk County, Florida, grand jury indicted Petitioner

for three first degree murders, two robberies, two attempted

murders, a kidnapping and an arson. (R2219-2224) He proceeded

to a jury trial on the charges in Lake County, Florida, on a

change of venue. (R2287-2289,2339) The jury found Petitioner

guilty of all nine counts of the indictment, and at a separate

penalty proceeding. the jury recommended a death sentence by

a seven to five vote. (R1785-1786,1794) Circuit Judge Randall

G. McDonald adjudged Petitioner guilty and sentenced him to

death on each of the three murders, life for each of the two

robberies. fifteen years for the kidnapping and the arson, and

thirty ye rs for each of the two attempted murders (R1796-

1799, 2420-2435)

Prior to trial, Petitioner moved to suppress admissions

of guilt that he allegedly made to another jail inmate, James

Smith. (R942-957,1901-1966, 2301-2303) (Al2-65) Smith was also a

pretrial detainee in the Polk County Jail (R1903-1904), and had

served as a police informant in the past. (R1907-1908)

Petitioner was arrested on January 10, 1981. (R1062-

1074,1926) Counsel was appointed to represent him on the same

day. (R2139) On January 14, 1981, Petitioner filed a written

notice that he was exercising his right to remain silent and

his right to counsel. (R2143) The original indictment charging

Petitioner was returned on January 23, 1981. (R2147-2150) Later,

James Smith engaged Petitioner in conversation in the book-in

area where inmates use the telephone. (R12,1924) According to

Smith, Petitioner then related some incriminating information

about the crimes. (R1904-1905)

After his initial conversation with Petitioner, Smith

spoke with Ben Wilkerson, a sheriff's investigator. (R1906,

1922-1924) Smith had worked as an informant for Wilkerson in

the past (R1906-1907, 1922); the last time shortly before Smith's

latest arrest. (R1906-1907) Smith continued to be a potential

witness in on-going investigations and had spoken to Wilkerson

on other matters four weeks before Smith's first conversation

with Petitioner. (R1926) Smith told Wilkerson about his con-

versation with Petitioner but said that he had trouble remen-

bering everything Petitioner said. (R1923) Wilkerson suggested

that Smith take notes in the future. (R1915-1916, 1923-1924)

The next day, February 6, 1981, Wilkerson returned

to the jail to talk to Smith ant brought two investigators who

were working on Petitioner's case. (R1907-1908, 1929-1933)

None of the investigators specifically directed Smith to obtain

particular information from Petitioner. (R1930-1931,1932-1933)

Two days later, Smith was moved from his cell on the third :

floor to a cell the second floor adjacent to Petitioner's.

(R1129-1130,1911-1912) From that vantage point, Smith con-

tinued to talk to Petitioner and to ask him questions about

his charges. (R1912-1914) On four separate occasions, Smith

turned over notes of these conversations to sheriff's investi-

gators. (R1915-1916,1924) Petitioner did not know that Smith

was acting as an informant. (R1927-1928)

Smith said that he did not ask for any benefit or

favorable treatment in exchange for the information. (R1914)

However, he admitted that he asked for and received help from

Wilkerson regarding a child custody problem Smith had after

his recent divorce. (R1915-1917) Furthermore, Smith received

two concurrent five year sentences instead of a potential

twenty-five years imprisonment he faced on several charges.

(R1124-1127) The State also gave a favorable recommendation ff

on Smith's behalf to the parole commission. (R1320)

At the motion to suppress hearing (A15-65), Petitioner

claimed that Smith was acting as a state agent and had illegally

obtained incriminating statements from Petitioner in violation

of Petitioner's right to counsel. The trial court denied the

motion. (A61-65) On appeal, the Supreme Court of Florida

affirmed and said,

< Pe

After hearing both sides’ testimony. the

court found Malone disti ishable from the

instant case and denied the motion to suppress

A ruling on a motion to suppress is presump-

tively correct, and a reviewing court should

interpret the evidence and reasonable inferences

and deductions drawn from the evidence in a

manner most favorable to a the trial

court per” McNamara v. State, 357 So 2d

410 (Fla.1978). Were, the trial court held that

the detectives did not direct Smith, either

directly or surreptitiously, to talk with

Johnson or to take notes on their conversations

Henry and Malone do not impose on the police an

a rmative duty to tell an informer to stop

talking and not approach them again nor do they

require that informers be segregated from the

rest of a jail’s a We agree with

the trial court that this case presents a

close question on whether Smith had become an >

agent of the state, but we find the ruling that

he had not to be supported by the evidence.

(A3)

REASONS FOR GRANTING THE WRIT

This Court has repeatedly held that once adversary

proceedings have been commenced against an individual --whether

by way of formal charge, preliminary hearing, indictment, in-

formation or arraignment--he has a right to legal representa-

tion if the government questions him. United States v. Henry,

447 U.S. 264 (1980); Brewer v. Williams, 430 U.S. 387 (1977);

Massiah v. United States, 377 U.S. 201 (1964). However, this

Court has never defined who qualifies as an agent of the govern-

ment for purposes of the well-settled rule. See, Thomas v. Cox,

708 F.2d 132,135 n.2 (4th Cir. 1983). Instead, the three

principal decisions that define the Sixth Amendment's protection

where a government agent elicits incriminating information from

an accused in—ehé absence of counsel, assume the “agency” of

the person eliciting the information and focus on whether the

agent has “deliberately elicited" the information.

In Massiah, this Court held that the defendant's right

to counsel was violated "when there was used against him at his

trial evidence of his own incriminating words, which federal

agents had deliberately elicited from him after he had been in-

dicted and in the absence of his counsel 177 U.S at 206

There the direct elicitor was a co-defendant. turned government

informer. who had allowed the government to install a radio

transmitter in his car for the purpose of obtaining Massiah's

statements The “agency” of the co-defendant in those circum-

stances was simply assumed

In Brewer, this Court held that a police detective's

"Christian burial speech" constituted deliberate interrogation

so as to violate the defendant's right to counsel Since the

direct eliciter was a police officer “agency” was not in issue

In Henry, government agents contacted an inmate at

the jail where Henry was awaiting trial for bank robbery For

some time prior to the meeting the inmate had been engaged as

an FBI informant, receiving monitary payment on a contingent

fee basis The record did not disclose whether the inmate was

contacted for the purpose of acquiring information about Henry.

During the contact, an agent instructed the inmate to be alert

to statements made by other prisoners, but not to initiate any

conversation with Henry regarding the robbery The inmate

then developed a relationship of trust and confidence with

Henry such that Henry revealed incriminating information to

his The informant provided the agent with the information

and was paid In holding that the government had elicited in-

criminating information from the defendant in violation of

Massiah, this Court again focused on whether the information

had been “deliberately elicited.” Although this Court con-

sidered the question of “agency” of sufficient import to re-

quire attention in Henry, the existence of agency was assumed

from the facts of prior employment as an informer and a specific

fee arrangement for information against Henry. See, 447 U.S.

at 270.

The lack of clear guidance in this area has led to

conflict among the state courts. In State v. Smith, 482 P.2d

863 (Ariz.1971), the Supreme Court of Arizona found, on facts

similar to those in Petitioner's case, an agency relationship

between an inmate and the government The Court stated

@*@rhis court does not live in the never-never

land of Peter Pan

Given the following facts In 1966, A supplies

information to B pursuant to an agreement that

in exchange for such information B will verfor=

services for A, the information ts supplied and

the services are rendered, in 1967. A again supplies

information to B and B again performs services for

A. and in order to perform these services B by-

passes the mandate of a court and thse duly con-

stituted Parole Board of this state Are we to

close our eyes to the logical conclusion that the

196? services were also performed pursuant fo an

agreement, either spoken or unspoken?

***In our opinion, the conclusion is inescapable

in this case that [the informant] expected some

benefit to accrue from his assisting the state

and in view of the past dealings of [the informant]

with the County Attorney based upon a favor done

for a favor received, that the state intended to

reciprocate for such assistance.

482 2d at 867.

Petitioner believes that the direct elicitors in his

case were acting as agents for the State He urges this Court

to grant a writ of certiorari

CONCLUSION

Upon the foregoing reasons, Petitioner asks this

Court to grant a writ of certiorari.

Respectfully submitted,

JERRY HILL

PUBLIC DEFENDER

TENTH JUDICIAL CIRCYIT

Assistant Public Defender

Chief, Capital Appeals

Hall of Justice Building

455 North Broadway Avenue

Bartow, Florida 3 830-3798

(813) 533-0931 or 533-1184

Member Of The Bar Of The United

States Supreme Court

1. inion of the Supreme Court of

Florida in Johnson v. State Al-10

2. Order denying rehearing in

Johnson v. State yl

3. Motion to suppress statements Al2-14

4. Transcript of hearing on motion to

suppress A15-65

oe fee sie * ‘ *

Supreme Court of Florida

Mo. 61,34.

PACL SEASLIY COMNSOM, Appellart.

STATI OF FLORIDA, Apoellee. TT -

- °

{August 25. 1983] “oe ofall

PER CURIAM.

Paul Johnson appeals his convict‘ons of first-degree

@urderc and sentences of death. “ee heve jurisdiceion= and

afficn ocoth the convictions and sentences.

A aine-count indictwent charged Jonmson with three counts

of fircet-¢egree aurder, two counts of roSbery. *-4napping. arson,

and two counts of ettempted first-degree sur¢er. The jury

cotvicted Johnsen of all counts as charged and seccemenitec «4

sentence of ¢eath for each of the three first-cegree surce:

convictions. The trial court imposed the recommended Cesta

sentences as well a5 lesser sentences On the remaisiag

convictions.

The charges stemmed ‘rom she following facts. Late in the

evening of January &, 1981 William Evans, 4 taxicab ¢river,

picked up « fare ta Polk County. After midnight, the éispetche:

heard a strcger’s voice several tises over the cab’s radio. She

never heard {roe «.o* driver egain, and five days later his cab

and body were found in separate, isolated citrus sroves. The cat

hed been set on fire. anc the ¢river Aad been shot twice ia the

~ art. ¥, § JODDULD. Pla. Const.

head; his wallet and fare soney were a1 s8i5¢

About 3:00 a.2. om January $. 1981 Sarrell Seasley and soy

feid lett « Lakeland festaurant. In the parking lot « “an

approecnhec them, said his car would sot cum. anc aseed for 6 tide

to « friend's house. [nm an isolated ares “he Stranger «sked

Beasley to stop the car so that he could urinate. On retursia;z

to the car he ested Beasley to come to the rear of =e car.

Tarowgh the tear window, Aeid saw the stranger molédiag @ pistol

on Beasley. She then locked the car doors and drove several

miles to a stoce where she call the sherii?’’s ¢esa>">ent

SDeouties Allison and Sarrincgton respencet =o Yelid’s cal’

and crowe her in their patrol car to where she hed le‘t the two

sen. in the seantize another deputy. Teron Yurntans. -adiced

that he hed seen 4 Suspect on the roed in question Om arriving

in tre area Allison and Oarrington stopoed their car faciag

Purnhaa's patrol car. A white male walked rapidly from « draia-

age 4itch at the side of the roed and crossed in. front of the

Ceputies’ car. Se fired two shots at the decuties and escaped

ecross an open field. Allison and Oarriagton then ‘ound

Burmhan’s body ia the drainage ditch: he hed been shot three

times

Later that Gey searchers found Beasley's ody je sed

been shot once in the heed and Ais wallec was “issiag Te

police arrested Jomason for these two homicides on January 16,

1981 and the following week charged his with the cab ériver’s

murcer.

As Ris first point ca appeal. Johnson claiss that « fellow

inmate's testimony 48 to Jomason’s admissions of guilt should

have been suppressed under Onited States v. Senry, 447 U.S. 264

(1980), and Malone v. State, 390 $o.24 338 (Fla. 1986). cer:.

Geniec, 450 U.S. 1034 (1981), because the other ianste “sd decce@ee

an egent cf the state. The imaste, Smith. had worked a5 an

informant for the sherif!’'s ¢eparctzent several sonchs prior ts

the iscidents et issue here. Alter meeting Jonnson by chance ard

BAViNG 4&8 Casual Conversation with Ais. Seitr contac: tae

Zetective he had previously worked ‘or and “cid 41m what Jon sor

nad said. This detective contacted the =wo cetectires working on

sonnson'’s case, who 6186 spoke with Seitn. Smith ves sovec to

several 4ifferent cells and even uslliy sound up in ome ent +o

Jonneca’s cell. Se took sotes on %is conversations wits Jonnson

ané turned them over to the cetectives nandiing Jornson’s case.

at the heariag of the suppression sot.conm Saits anc the

three detectives testified that Sa:ith talzed to Jonnson on his

own initiative, without any prosptiag froe the detectives. The

Cetective that S@ith orisically contacted said that te had told

Smie® teat it gigne Se is Seicth's Sesc isterest to write sown

-wheat Johnson said. Smith. on the other hanc, testified that he

@ecicged to take sctes. soiely om Ris own. secause he had trouble

remembering things. The other detectives stated that they hac

aot told Smith to talk to Jommson or to take sotes. Smith testi-

fied that he thought he had been sowed to the isoletion cell sext

to Jommson'’s because he hed Seen isitured and because he had had a

bed argument with 4 counselor.

After hearing botA sices’ cestisony. the court ‘cund

Malone distinguishable ‘rom the instant case and denied the

@otion to suppress. A ruling om & motion to suppruss is presump-

tively correct, ant @ reviewing court thoulé interpret the

evicence ané reasonable inferences anc ¢ecuctions ¢rawn {roam the

evidence iA 4 gsanner gost favorable to sustaiaing the trial court

roliag. McNamare v. State. 337 So.3¢ 415 (Fla. 1978). Sere. the

trial court held that the detectives ¢.4 sot direct Saith., either

@irectly cr surreptitiously. to tala with Jonasson or to taase

notes Om their conversations. Senry and “alone ¢o sot impose on

the police an affirmative duty to tell an informer to stop talk-

ang ané not approach them egain nor Go they require that infor-

mers be segregated from the rest of 4 jail’s population. Me

egree with the trial court that this case presents a close ques-

tacm oA whetner Seith bed become af agent of the state. but ve

find the ruling that he het set to he supported by =he evic¢ence.

Amy Reid anc Deputies Allison anc Carriagton identified

* e

Jomason {rom s lineup. On apreal conmmson attacks the Lineup as

having deen icperzissibly suggestive and clains the court erred

tn refusing to sllow his exper= *° testily a8 %9 the unmrel.abi.-

sty of syewitness icentification. “e find 20 error ia these

points

The United States Supreme Court set oUt the standart ‘for

detersiniag the reliability of aa identitication, om the totality

of the circumstances, even though the procedure aight have been

suggestive in Well v. Bigcers. 409 U.S. 188 (1972). The Court

identified five factors relating to reliability: (lL) tse oovort=-

sity of the witoress 38 view te cri aires at the tise of tne

crime: i2) the witness’ degree of attention: (3) the eccuracy of

the witness’ prior description: (4) the lewel of certainty ¢emon-

strated by the witness at the confrontation, and (3) the length

of time between the crime and the confrontation. ta. et 199. ta

man % athwaite, 632 0.$. 98 (1977), tae Court reiterated

that the reliability of the identification is the moet important

concern and that it should be determined on the totality of the

circumstances. ‘This Court edopted the Warson two-part test is

Grant v. State, 390 So.24 341 (Pia. 1980), cere. denied. 433 G.5.

13 (1981)

(lL) ¢id@ the police e=ploy an unnecessarily

suggestive procecure in ootsis.cg a4 sut-of-

court identification; (2) if se, consideriag

all the circumstances, ¢id the suggest.ve

procedure give cise to 4 substantial likelihood

of irreparable misicentification.

té. et 34).

Jonsson attacks the liseug secause of its composiction-~

only he had « suntad and Slonde hair anc Ais inmate uaifors was 4

lighter blue than thst of the other insates ia the lineup. CLixe

the trial court, we do sot find that the complainec-of items sade

the lineup imperaissidly suggestive. Moreover. we note that «4

sheriff's department iavestigator testified hat sone of the

witnesses indicated at the lineup thet these .tens ta’ lvencec

theis identifications. Besices finding te lineup set to have

been unnecessarily suggestive. we find ‘at these wi*sesses"

identifications conform to the ‘ive factoes set out in Neil »

Bisgers. “e hold, therefore. =hat «he trial court 2:2 not err iA

fefusing ‘9 suppress trese icenti ‘ications.

JOrAson sttempted to cail « protessor of psychology as ar

expert witness if the field of eyewitness ident: ication.

According to JoRnson, this witness would “ave exwplaiced toth «se

Common problems tn such identifications and the general factors

affecting a witness’ accuracy a6 well as testi‘ying about the

sugvestiveness of the instant lineup itself. Aa trial court has

wice tiscretion conce-Sinc the *eSLesisility of eviderce ind *he

Tange ef subjects about which an expert can testi ly ges: 7.

State, 408 So.24 1624 (Pia. 1981). cere. denied, 6$7 0.5. Lilt

(19482); Jonasson v State. 39) So.24 1069 (Fla. 1980). cer:

Cenied. 454 U.S. 682 (198i). Expert testimony should be excluded

when the facts testified to are of such sature as sct to require

any tpecial knowledge Of experience in or¢er for the jury to fora

4cS8 Comc.lusions. Johnson. We hold that « jury is fully capable

Of assessing a witness’ ability to perceive and remember. given

the a58istance of cross-exatisation and cautionary iastructions,

without the ei¢ of expert testisony 2 We find no abuse of

discretion ia the trial court's teftusal to allow this witness t5

testify sbout thse fel.abilicy of eyewitness isentilication.

Selyiag om Ball v. State. 663 So.2¢ 1319 (Tia. 2981),

Johason claims thet he should have bees convicted of so sore than

second-degree surder ‘for the Geputy's Geath. in that case Sall

and his cohort struggled with a Ceputy sheriif over a pistsi; the

ceputy was shot to death. On appeal we found the evidence insu/-

ficient to convict Salil of premedisated surcer. Our readiag of

the iastant record shows suffic:eat evicence of premeditation to

* Several other courts have reached the sase conclusion sasour

expert Cestimomy iA @yewitness identi ‘ication: Cmited States

v. Thewis. 665 F.2¢ 616 (Sen Ciar.). cere. 0, 103 $.ce. $7

(1902); United States v. fosner, $96 F Td SEI Tre: Cis. 1979);

Caldwell wv. State, $94 S.w.2ta 24 (Acme. Ct. Apo. leo). People

v. Gimon. 87 ILl.App. de S14. 416 M.Z.24 252 (1900); State wv

Melter>ridle, JG] W.w.24 445 (Mann. 2.980). Melson ~ State, 362

So.2¢ 1OL” (Fie. 34 OCA ldTe)

* ad

evpoort the conviction of first-degree surter +5 te ceputy’s

death, and we find Yall tsepplicable to she instant case secause

tne evidence here is iaconsistent with any reasonable Typothesis

otner than premeditated surcer.

Jonneca seat claiss that the triel court improperly

excused @ prospective juror for cause ia viclat.ca of 4.:5erssocn

v, illinois. 391 G.8. $10 (1968). After studying this prospec-

tive juror'’s responses to the questions asked on voir dire, we

find that she unequivocally stated her opposition to imposing tne

Seatnr penalty The trial court. therefsre., proveriy erwcusec her

As nis final challenge to the guilt-sanocence phase of the

trial. Johnson claias that the charges arising from the cad ériv-

er’s death should have been severed {oom the remaining counts of

the indictment. florida ®ule of Criamiaasl Procecure }.159'8)

provices

Two or more offenses which are triable ia the

same court may be charged in the same indict-

gent or information in a separate count for

each offense. when the offenses, whether felo-

nies of sisdemeanors, or both. are based on the

seme act Of transection of on to of sore

connected sects oF transactions.

A severance shouléd be granted when secessary to achieve 4 faic

deternination of « ¢efendant’s guilt or innocence. fla. &. Cris.

>. 3.L52¢a) (2). Granting « severance is largely « aatcer of

4iscretion with @ trial court. and the Surcen is on the Bovant *5

Gemonstrate an abuse of discretion. Sanson v. State. #8 So.i¢

272 (fla. 1956); Ballard +. State. 323 So.24 297 (Fla. 16 CA

1973S).

Jonnson relies on Paul ¥. Stace. 385 So.24 LITL (Pla.

1900), where this Court edopted Judge Smith's dissent t> Paci v.

State. 365 So.2¢ 1063 (Fla. let OCA 1979). We fined Paul distin-

quishable from the iastast case because there tie offenses

occurred five weeks epart. ere, om the other Sand, only Sours

separated the three homicié¢es and related crises. “ae ¢o sot fine

that #8 severance would have Seen secessary t2 fairly cetermine

Jonnson’s guilt of isnocence ia the crises charged.

Several ettacks on the sentences snc sentencing pnmase of

og-

the triei comprise Johnson's last points on sopesl. Fe claics

that the trial court erred in its essesssent of the aggravating

factors and is instructing the jury om certain eggravating

fectors. that the standars jury -AStruction preciuces consicer-

ation of mitigating evidence, an¢ shat the trial court should

neve sllowec Sim to weive an sggreveting circumstance. “e fiad

nO merit to these contentions.

In a thoughtful and well-ressoned sentencing or¢er the

trial court found the following aggravating factors: previously

convicted of # capital or violent ‘elonv (sil tnrree homicice

charges); felony @urderc (ali three); avoicing arrest (‘Surnhas)

pecuniary gain (Ewans); and cold. calculated, premeditatec sanner

(ell three). The court found sone of the statutory Bitigetiag

circumstances applicable, but 4i¢ find Johnson to Nave Seen under

the influence of érugs although sot to the extent of ceing uncer

extreme mental ofr emotional disturbance or eatreme duress.

We fiad that the evidence suprorts the findings ia the

trial court order.

Jonnsoa challenges several of these fladings which we will

¢iscuss briefly. in finding that Jonsson Sad previously been

convicted of @ viocleat felony the trial court relied oa the

convictions foc ettempted aurcger ia this trial. This is & proper

Singing uncer King v. State. 399 So.32 115 (Fila. 1980). c3ors

Genied. 450 U.S. 969 (1981). amd Lucas vy. State. 376 So.24 1149

(Tila. 1979). The ewidence is also sufficient t5 support fiadiag

that Johnson Killed the deputy while Jleeiag ‘rom «a robbery. The

Geputy was shot only one-hal!l bour after Beasley and only 4 aile

and a hall from the site of his <eath. See Griffin v. State, 418

$o.2¢ 1625 (Fla. 1982). There is also support for the court's

finding the ¢eputy’s @urder to have been ia 4 cold, calculated,

preseditated eanner. We acte that testimony showed that. prior

to starting owt for the eveniag, Johascon stated that Se would sot

min¢é shooting people to obtain aoney ea¢ =Sat the deputy was shot

taree tises. Johnson claias that the court improperly coubled up

tne felony surter and pecuniary gain ‘actors ia the Ivans curcer,

-)-

but tar0ee so¢erlyiag ‘elonies were oresent that ac ifee:

.~.* robbery. ersen. enc 4. cneppisg The sus 2 tiercetore

coul¢e properly ‘fiad the tector of pecum.aty 7415 se elec sold

thet tne “Tiel court properiy ‘ounce <-1. ght ef er commission of «a

rebhery sad ‘or the surpose of evoiciag «trest a eggrevetion of

the édeputy + surder fvidence shows set ‘het Jotmson -obbed

Beasley. she gecond victia. and that the teputy stopped Jonnson

om the roed 68 6 POSSIDL® suapec™

Jommeon cleime the court isproperly instructed the jury on

the egcreveting fectors of heisous atrocious ert sei. enc

great risk of death to seny pecole secause “he evitence present ed

would sot support fiadiag either of those circumstances. We find

ao error ia the iastructions. The list of statutory eggravetiag

circumstances is exclusive. and we see 50 reason to Totity «4

defen¢cant of the circumstances on which the state will rely

Mitcheock v. State. 41) So.2d 741 (Fla.), cert. denied, 105 $.Cct.

274 (1962). The state sust prove appiicedle aggravating circua-

stances beyond « reasonable Goubt. Williams v. State. 386 So.24

$38 (Fla. 1906). The ¢rial court 4¢id not fiad either of these

feactces, and Johason suffered no prejudice fros the coapiasined-of

iastructions.

Tee lise of miticatiag cirscuestances set out in section

P2L.1411(6). Flocidea Statutes (1981). contains aodily

such as “aextreme,*° “significant.* “relative.* and “substantial. °

Johnsca claiss that these sodiliers Save the efliect of taproperly

hastructiag the jury to disregard «ll aitigatiag evidence if the

threstoic ¢efined by the liaiting words is sot met. As this

Court bas previously commentec, the statutory sitigatiag circua-

stances,

when coupled with the jury's ebility ts

consider other elements in sitigation,

provide a ¢efendant in florids with every

opportunity to prove his oc her entitlement

to @ sentence less than ceath.

Peex v. State, 393 $0.24 492, 497 (Fla.), cert. denied. 451 5.5.

964 (1981). Moreower, we note that the court gransted Jonnason’s

requested isstruction on the unlisited sacure of <ne aitigsting

wmetarces Se ‘inc ao cerit ¢t thas sa

*e iag ® Seqgare State 7 5 24 87) ria rr”

- ec soe 5 ios a) ana oe | Stace $0) So.22 4:19

rise oe. ere ten.ed 456 5 +e. 982 -orneon cleias

nat se triei set sheul¢ seve 6¢llowed .i8 to weive te apoi:-

@bii.t : se >. 4 e.<4.4atec ard emed. tated eggravatiag

mstance la ES © Stated that subsection $271. 146115) (4)

“acds atiens to those elements for use in aggravation. lisi-

tations which iaure to the bermefit of « defendant.* 46) $0.24 at

‘a “it at “2st e *s axe * “es ere‘. tf a @etend

ane ead an * wa vec ] efercan* "acess: ;oAs sor

(easons therefore, that « ¢efencant should be able to waive the

eqggrevating factor set out in peragraph $ i TRis reasoning,

however, Bisees the point of the pertinent ¢iscussion ian Coebs

The above~quoted statement in OMD>s is iA response to the claia

thet 411 premeditated surcers will @utctaticaliy start with one

eqggravatiag factor We eGopted that lanaquage to allay that fear

and fia’ so gerit to the instant lais

Findiag a0 error we affisa Johson'’s mvictions aad

sentences

it is so orcdered

ALDES™AN ADEINS OY crs - 5 and RLtce J

TIME CX7IALS TO FIu£ ALNEAAING NOTION AND. IF

we note treat the trisl court ellowed Jonasson to waive «@

Matigatiang factor (no significant istory of prior criainal

ectivity in the Lastent case.

Att

Ranéalili G

Ziil Pub

‘oa *enth

“Gg

~-*

ane

a -

Aas

fica

are

2 (Polk

~~ ——

S.istan

& e

IN THE SUPREME COURT OF FLORIDA

WEDNESDAY, OCTOBER 26, 1983

PAUL BEASLEY JOHNSON, ee

Appellant, oe CASE NO. 61,341

vs. ee Circuit Court Case Nos.

CF81-0733 (Lake)

STATE OF FLORIDA, ee CF81-O112 (Polk)

Appellee.

On consideration of the motion for rehearing filed by

attorneys for appellant,

IT IS ORDERED by the Court that said motion be and the

same is hereby denied.

A True Copy c

cc: Hon. James C. Watkins, Clerk

TEST: Hon. Randall G. McDonald, Judge

aa.

( W. C. McLain; Esquire

~David.t. Weisbrod, Esquire

Sid J. White

Clerk Supreme Court

Oeputy Cert

Feat

1s Th @.. ower oF TH TENTH worwrn. cUIT

1k AND Peet POLK C.CONTY, FIM@ina

| Loe

Plaintif

‘ ~ rR) Ollg

ra .

f. -

‘ . REA , N. ft ey Fla.P ria.P.

, ~ rt ‘ 3 me from his

refer t? :

< ‘ ‘ r & ‘ mty

: ¥ ati f = !

fe ' r t t ent Fife and Sixth

noe t ‘ ta metic Ast ‘ 6, of the Con-

itu of the State of Florida: Mira » v Ari 2. 84 .S. 436 (1966); United

. r ) . ‘ ‘ ‘ 980): Ma ne wv

eat ‘ d ; 198

Stat cf written : 5 aa t fenda te ane Leon

e ' e , l between Februa i 951, and May |! 198)

2 tater t ral r written, allegedly sade by Defendant to Larry

rr tclbhank betweer wary 10, 1981, and April 3, 198!

FAC TUVAL BASTS

' Um J ary 10. 1981. Defendant was arrested for charges in this cause

“ad tr orted to the Polk County Jail. He remained a pretrial detainee in

thar jsil throwghout the period coyered by this motion through May 1, 1981.

Ps larry Brockeclhbank, a Polk County Jail prisoner at the tise of Defend-

ww! © s5eest Comtinuiog wattil oppresimately April 3, 1981, claias that during

that period Defendant gade statcevnts to hie regarding ihe instant

cause, orally

ant threerh Cive (5) 1... e

‘. The moking of oral etatements by Defendant to Brockc}back and the

{iret of the letters was sode known to the State Attorney's Office in aid-

Februory, through Brockelbank’s attorney. Brockelbank later had direct

correspemience with the State Attorney's Office, including sending the other

letters to that office.

Brockclbank clicited the alleged statements from Defendant about his

svee throngh direct questioning about the charges, evidence and true facts of

the catc.

s Brockelbank did so with a fully conscious plan to inform on Defendant

ts the puvernment and carried out the plain. Further, Brockelbank continued his

after receiving the implicit

eubtle teterrogation of Defendant for the rovernment

sprrove!l trom the State Attorney's Office after the statements and letters were

firet there reported

t Brockelbank never informed Defendant of his own role as informer inter-

liar to the covernecnt concerning their communications. Brockelbank never in-

foemedd tefoedant that Delendant had a right to remain silent and to the advice

and pre<ence of counsel during questioning on his charges.

?. Jamen Leon Seith, a Polk County Jail prisoner at the time of Defendant's

arrest cowtinuing until approximately May 1, 1981, claims that Defendant made

ceveral eral statements to him regarding the instant cause during that period,

begionion approximately February 3, 1961.

A Saith had been acting as @ government informer aiding the Polx County

“neriff'« Department in other cases before first contacting Defendant in the jail

derivc thes period.

s Seaith reported to Sheriff's investigator Ben Wilkerson that Defendant

hod mode statements to his concerning Defendant's ‘charges, evidence and true facts

ef the «we. Smith was told by Wilkerson to remember things that he and Defendant

dicen « | in the future.

We. Seith claims that he continued to receive information from Defendant and

that he continued to report to Wilkerson.

ti. At neme point after Smith began reporting that Defendant had discussed

thin case with bas, a decision aude by Polk County Sheriff's employees caused Saith

te be moved to a jasl coll adjacent to Defendant's in an otherwise relatively

aceleted orea of the jail. Seith asserts that Defendant sade several statements to

hie abet the case while they were so situated.

2202

'*. Smith nc. information from Wt: after

qeeetiowing and with a fully conscious plon to inform the government of the

communications. Further, Smita continued to do so after receiving the

deplicte - if not explicit - approval of the Sheriff's on to do so.

1}. Smith never informed Defendant of his own role as informer inter-

ecdiary to the government concernine their communications. ‘Seith never inforzed

fefemteet that Defendant had a right to remain silent and to the advice and

preeenes of counsel during questioning on his charges.

LUEEEFORE, Defendant respectiully requests that this Honorable Court find

that priconers Brockelbank and Smith acted as governmental informers in eliciting

the information that thew allegedly did from Defendant and that they were required

wmicr e-inting law to duly advise Defendant of their roles and his rights. Any

resenicotions received from Defendant in violation of the law stated in this

sotien t= subject to mandatory suppression. For the reasons and authorities

“tater? +e this motion, Defendant moves this Court to enter an Order suppressing

the «to'- sents above listed.

A} eo .

LAWRENCE D. SHEARER

Assistant Public Defender

CERTIFICATE OF SERVICE

1 / reBY CERTIFY that a truce and correct copy of the foregoing motion has been

furnixied to the State Attorney, Hall of Justice, Bartow, Florida, this the 18th

daw of Aveust, 1981.

LAWRENCE D. SHEARER

Assistant Public Defender

1PHS/ pe

ee ee ee —

IN AND FOR LAKE COUNTY, FLORIDA

STATE OF FLORIDA,

ee IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT

7 Plaintiff,

CASE NO. CF81-0733

= BEASLEY JOHNSON,

Defendant.

A hearing in the above-styled cause was held on

August 28, 1981, in the Hall of Justice, Courtroom I,

Bartow, Polk County, Florida, at 2:30 P. M. o'clock, before

the Honorable Randall G. McDonald, Judge of the above-styled

|court.

Appearances were: Hardy ©. Pickard, Esquire, Assistant

State Attorney; for the State; Lawrence D. Shearer, Esouire,

Assistant Public Defender; for the defendant; the defendant;

the witnesses; the Court Clerk; and the court reporter.

Thereupon, the following proceedings were had and taken:

THE COURT: I had failed to bring up one minor

motion that I think we probably need to address at this

time. Mr. Johnson, back on July the 14th you had filed

in the Court file, which later came to my attenticn in

August, a motion which essentially, I believe, at that

point in time was asking for a different lawyer or @

change of lawyers. It was written out on--in yellow

ANK S. HORNE MEF UATING SERVICE

POST OF FICE BCE 787

SanTOw ROMO.

"— "4899

ie)

A 2 a

sheets. Do you recall this particular motion?

DEFENDANT: Yes, sir, I do.

THE COURT: OK. Have you thought about that motion

any longer? Do you wish for me to hear that motion at

this time or do you wish to withdraw that motion?

DEFENDANT: I was sort of sick at the time. And I

just ask you to forget sbout it.

THE COURT: OK. You're asking me to withdraw that

motion at this time and not tu hear it?

DEFENDANT: Yes, sir.

THE COURT: OK. The Court will not consider that

motion at this time, but I will file it for the Court

file.

All right. Are we ready to proceed then, gentlemen]

MR. SHEARER: Yes, YOur Honor.

THE COURT: Do you wish to take up your motion to

exciuds identification first or does it matter?

MR. SHEARER: I wish to do that second, Yu.r Honor.

THE COURT: OK.

MR. SHEARER: Dr. Brigham will be here. And he’s

not here yet. He's coming into town to testify at that

hearing. And he had a long drive. And he’s not guite

here yet.

THE COURT: OK.

MR. SHEARER: I would wish to first proceed with

ANN S HORNE REPORTING SERVICE

POST OF HCE SOE 757

earTow

. LOMA ED 1900

-a

—— nl

the motion to surpress statements. Your Honor, 4s

cited in this motion, there is alleged and has been

discovered through discovery in this case that the State

would intend to use two State prisoners as witnesses

against Mr. Johnson alleging that he made certain

statements to them reference this case. The purpose of

this hearing is not to go into what the substance of

those statements were, but to analyze the method on

which those statements were obtained. It is the defense

intention that they were obtained, if they were obtained

at all, as alleged by these two witnesses, Larry

Brockelbank and James Leon Smith. They were obtained

in violation of defendant's right to not testify

against Limself and his right to counsel. The defense

contends that each of these individuals in the capacity

of where they got these alleged statements were acting

as governmental agents in the tehalf of the

investigation by law enforcement and/or the State

Attorney's office and to the charges in this case

against Mr. Johnson.

The defense argument is based upon the cases cited

in the motion. The case, of course, Miranda vs.

Arizona, the case of United States vs. Henry, 1980

United States Supreme Court Case, the case of Malone

vs. State, 390 So. 2d 338, Florida Supreme Court case.

ANN & HORNE REPORTING SERVICE

POST OFFICE BOR 87

BAsTOW, FLOMIDA TED --

-. 1901

‘¢

THE COURT: For vour information I have had the

opportunity to read those cases in their entirety along

with the other opinions concurring and otherwise. I've

als had a chance ¢t rea r motion through

MR. SHFARER: Thank you. Also, the defense relies

upon the underlying cas¢ law, the Messiah case, which

is cited hn those ther itations

Your Honor, the defe e made a motion to secure the

two individuals involved, James Leon Smith and Larry

Br ke lbans Your |} signed an order to have

Mr. Smith transyf rted here. And he is present to testify.

Mr. Brockelbank is not present. And evidently, the jail

tells me they never received an order to secure. And I

do not know if the Court ever actually did enter such an

| order. Such an order was submitted to the Court for

entry. At any rate, Mr. Brockelbank is not here. And

the defense is not prepared to proceed on that part of

the motion, and not being able to call Mr. Rrockelbank

as a witness.

THE COURT: OK. I don't know what happened. We'll

check into it. We may just have to continue that part of

the motion until we can secure hin.

MR. SHEARER: Thank you, Your Honor. Your Honor,

the defense would call reference to the motion to

Ei ee ce ee a

POST OF? CE BOR TH?

SastTOw FLOmD4 ED _<

s ae Cie, Pa ee ; a LET

} suppress statements allegedly made to James Leon Smith.

q 2 | The defense would call James Leon Smith as 4 witness.

3 | And I would ask the Court to consider the possibility

4 | that he may be a hostile witness to the defense. And I

5 may or may not find it necessary to impeach him by prior

6 inconsistent statements depending on his testimony.

7 THE COURT: All right. Let's see what happens.

a MR. SHEARER: Yes, sir.

9 | THE COURT: We'll talk about that should that

10 occasion arise.

it JAMES LEON SMITH,

12 | having been produced as 4 witness on behalf of the defendant,

13 ‘sigh having been first duly sworn, testified as follows:

« |

i4 | DIRECT EXAMINATION

1S BY MR. SHEARER:

1. oe 0 Please state your name.

17 A James Leon Smith.

18 Q And where do you live now?

19 A DeSoto Correctional Institution.

20 Q Are you a prisoner there?

21 x Yes.

2 0 Sir, were you previously in the Polk County jail

B in 1981?

Pa A Yes, sir.

i( Pa) ) What periods of time were you in the Polk County

ANN & HORNE REPORTING SERVICE

POST OFCE BOE

SAsTOw OND TD

193°3

ar - : —

1 | jail in 1981?

‘

¢ 2 A Up until May the t

3 0 Were you there from January Ist on through that date?

‘4 A Yea!

S C Sir, have statec ¢t ther per ns that while in

6 the F ‘ int jail : ‘ ersati with Pau]

7 | Bear , .

a | A Yes

9 : ¢ Is this M ated here?

i ,

10 - Yes

il | Q I’m going ¢t ast S Orme estions about the

12 honver ations you say « irred without getting into what was

( 13 Statec curing the nver t

“| A OK.

1S ¢ Do vou understand my statement?

16 a Yes.

1? | 0 On what date if you can recall or estimate was the

8 first conversation you had with Mr. Johnson in the Polk Ccunty

19 | 5042 in 1981?

20 , I can‘t recall) the date. The first time was when

2) we were in the book-in area. We visited on the phone.

a THE COURT: Can you speak up a little bit--

ra) a Yeah.

al THE COURT: --so we can hear you? You may have to

25 move @ little bit closer to microphone. Go ahead.

ANN & HORNE REPORTING SEAVICE

POST OF HCE GOn

SantTOw *\OmD4 EAD

1904

rs iin

A The first time we was in the visitaticn area where

& 2 they got the phone t es t talk ¢t the visitors. |

3 ¢ What were you doing down there

‘ 2 I had went dow t Sé a preach who had come up

5 t ce me

¢ C On that « ’ 3 y ec a versation with

7 Paul An n

8 » Yes, I did

9 0 And did you have a nversation relating to the

10 harge Or some of the harges against Mr Johnson?

1} A Yes, I did.

12 0 Before talking about any of the charges against

13 Mr Tohnson, did y have ther types of conversations?

4 A Yeah, I asked hir what he was down there for and

1S he t 2 me they were coming to get a hair sample. He didn*‘t

16 6} Specify what kind of hair sample. He told me he wasn't

17 j going to let them have it until they got a court order.

to 0 Is that when you began talking about your case?

¥ J , j y

19 A Yes.

20 ¢ Did you ask hir abcut what he was charged with?

21 A Yes.

2 0 At the time that vou talked to Mr. Johnson had

pa anybody asked you to speak to Mr. Johnson about this case?

4 a No.

( Pe) | 0 Previous to that time when you met Mr. Johnson

—— -

— — ——__

ANN S MORNE REPORTING SERVICE

POST OFFICE BOX

BAnTOW LOmOA IMI 1905

r . seinnsinenetnisionsenitiinhh

} downstairs in the visitor area, had you ever been used by

o > ithe Polk County heriff*s epartment as an informant?

4 0 And did you know Investigator Be: Wilkerson?

S A Yes

é « Were you wor} with Myr é Wilker n On some

? f his cases as an informant as part f his investigation

a for the Polk , eriftet Ne Irtment

% 2 At that tim

10 ‘ Well, at a tire first f all

1} A Yes.

12 ¢ And during that er 1 of time were you so working

13 as an informant for the Polk County Sherif{'s Department?

. 14 A whe I wa t t 4

18 0 And can you tell me what month and what years that |

14 - ic be?

17 A I think it was in °80. Right at the end of ‘80.

18 0 Toward the end of 1980. Do you remember when you

19 were arrested?

20 XR Sentember ‘8

21 0 OK. Can you tell me what length of time or how

many months or weeks you worked as an informant?

A I don’t know. I guess around a month.

24 0 Around a month?

25 a Somewhere around there, I reckon.

ioe ee

ANN S HORNE REPORTING SERVICE

POST OFFICE BOE PH?

BA2TOW FLOMmO4 DD 1996

poo

jail fr

contact

as an

After you

Pa t jeod back t, you w

ent as an informant is that

you know when you were rearre

November.

It was October or

were rearrested and in

m November on, did Investigator Wilker

with you

I thin

And did he--at that time did he discuss your work

regarding the work that

he came to see me one time.

informant for him?

We discussed some things.

Were you--did you consider that you were &

the Polk County

you had done for him’

rked for the

sted?

I’m not sure.

son have any

ANN S HORNE REPORTING SERVICE

POST Office Bn TH?

easTOw OmO4 IMD

-—--

|continuing potential witness reference to any nvestigations |

, |

; that you had cooperated with?

« , Yes.

0 After--excuse me. Going back again to the time

‘

when you say you talkee to Mr. Johnsen in the visitation area

‘ the first time in 1981, you say at that time that you

.- {|@iscussed with Mr. Jonnson something abcut his case; is that

a } r ight ?

t Right

9 G

10 0 Did you later report this to any persons with the

1 |Polk County Sheriff's Department?

A Yes, I did

12 |

- Q When did you do that?

C - A I don’t know. I believe it was a couple ef days,

jafter. I*m not sure.

is | .

- 0 Who did you report it to?

1? | 2 I can't remember his name. He was a detective over

1. jat the sheriff's department.

19 Q Was it Ben Wilkerson?

20 7 No, it was another detective.

2 ? Was it Troelsen?

Pat Xu I called Troelsen and ‘roelsen was busy. And

Db another guy--I think it was him, Mr. Troelsen and another

deputy.

| YI puty

A 3s 0 Did you tell them the substance of the conversation

ANN S HORNE REPORTING SERVICE

POST OF MCE SOE?

SenTOW OMA DED

‘ "ha

on she >

;

ase

‘

aiscuss

conver:

) < ae |

Yes, Ii a

Did the wit the 5 bility that you

ave . a j e ‘ sar wit ee | al ° >? jt nis

Would you repeat that ‘

When you met with those investigators, did they

with you the possibility that you might have future

ations with Mr. Johnson about his case?

I don’t understand what you mean by “possibility”.

lk to ther about the--that it might

lad

that you might talk to Mr. Johnson about his case at

Did they ask you to record any canversations you

ith Mr. Johnson in any way?

No. I would like to say something. When I seen

Mr. Troelsen the other day, well, there again, Ben, I mean,

i\Ben Wilkerson came in a littie later on and I talked to him.

ase

Was that that sare day?

Yeah.

Did you tell Mr. Wilkerson also about the

conversation you had with Mr. Johnson?

Yes.

This is the same Ben Wilkerson who you had been

ANN S HORNE REPORTING SEPVICE

einTow, Oma 10 . 1909

( wit . . " t : ity

m< % ' : - . v

. stor + . . ' ¢ talk ¢ Me /

A Ye

C And what di ticgator WwW kerson ay to you

at t talking t Mr Jo mn in the future?

» Noth: ;

‘ Did he ever ask y to re rad or sake any notes

about y conversati < had with Mr Johnscn?

a Nc

How at t at a ter time, did he ever ask you to

mane al note

_ Nc

0 You did begin ¢t take notes; is that correct?

A Yes.

0 Whose idea was that?

om Mine.

9 Did anybody ever suggest that to you?

A No.

Q When you reported this to the investigators, was

| that conversation downstairs in the visitors area the only

| conversation area you had had with Mr. Johnson to that point?

aa |

ANN S. HORNE REPORTING SERVICE

POST OFFICE BOu 7H?

SAsTOW FLOmDA ED ; 1910

A Well, I was in the cace on the seconde floor one

. time whe he wa talking to Little Fi

\ !

; ¢ Did he talk ¢t about his case on that time? ;

‘ x We snore. He was mostly talking to Little Rick. |

" C Were there anv cther times you hac a conversation

6 wit Ar Johnson before c S ke to the investicators about

? what you had talked about

a oe Yeah, I seen hit ne time in the hallway.

9 ¢ What hallway was that?

10 A Second floor

1 ¢ And during that time that you spoke with Mr. Johnsof

in the hallway on the second floor, was there any conversatiog

13 at t his case or his charges?

(

C i4 M Yeah, there was a conversation between us, but I

5 can’t remember exactly what was said now.

16 O You mentioned now three conversations with

17 Mr. Johnsen that had taken place by the time that you spoke

19 =| to the investigators. Were there any others?

19 A It was somewhere around two or three, somewhere in

;

20 | there.

21 Q At the tire that you spoke to the investigators,

where were you being housed in the Polk County jail?

A I think it was cn the third floor.

24 | Q Do you know at that time where Mr. Johnson was

( 2s poses housed?

ANN S HORNE REPORTING SERVICE

POST OFFICE BOX 757

BenTOW FLOmOA

_— .. 2032

1€

os aa a, ——

] 2 tM

¢ > ¢ Was he anywhere the eil near you?

3 2 NO

4 0 After talki i the t jators did you agdin

S have c er t ; wit Mr r at t his case?

6 A I d %¢ > nk y > +, > .¢ , no, not exactly.

7 0 How long aft« that di next have a

8 c ersatior th Mr Johr arout his case?

G a A c ipls of lays Y°’s not ire

10 0 De Ou Know where that harrened?

i p I think it wa é block r eight block I

2 | can't remember exactly. It was twe cells side iy side in the

13 bacs

( 14 ¢ Were you in a cell beside vr. Johrson?

1S A Yes

6 | 0 When did you cet moved to that cell?

17 a After me and the counselor, we had a oretty bad

68 | argument and my arm get cut uf

9 =| 0 You were moved from the cei] you had on the third

20 floor to a cell in sever or eight block; is that right?

21 Ls Right.

2 0 The cell in seven or eight block; is that a single

23 cell?

™ A Yes.

( pa’ Q And where--once you were moved, where were you

seserassssasessnsnsessesessassesnesnest a et 4 eee

ANN S. HORNE REPORTING SERVICE

POST OF HCE BOn .

BArZTOW. /\OmDA KEE 1912

A-AS

4 o Mr a hneon's cell >

} placed in relation to 11

% 9 A I think it’s seven block. I'm not sure.

3 0 In relation to Mr. Johnson's cell, where were you

4 mpared to that?

- A Right beside hir

6 C Was anybody else nearby in the other cells?

7 A There was a cell--there was a 12 ran cell beside it

f and some cells behind u

9 ¢ Were there any cells directly across from you?

10 A No

1 0 Is this kind of those parti lar two cells, are

12 | they in kind of an isolated area?

13 A Yes.

( i4 ¢ And you've told investigators, haven't you, that

1s | while you were next door to--in the next cell to Mr. Johnson

, ' ,

1% «60 | you had some conversations with him about his case; 15 that

i? right?

yo A Correct.

19 ¢ Did you ask hir about his charges and how his case

20 | was going?

21 A Yeah, and he would just come out and tell me.

2 ¢) Sometimes he would?

DB A Well, you know, we would be talking about all the

4 while we were back there.

4( 2 0 Sometimes you'd ask him about his case and scmetizes

ANN S HORNE REPORTING SERVICE

POS! OFFICE BOR TH?

BarTOW FLOmOA

“(

Le)

State

What

teer thing t a‘ right?

Yeah

Did 7 make " . tes 4 > >

fies

And how ad t as

Wit : : am

Exc ir

Wit an nk 4 ind a iece f paper.

And what t pe f note wer those?

Tust, you h “, what hac been said during the

Why did y 3 take those nor. ?

I just > ¥ thee

xcuse me

I just ¢ x é note

For what reason?

Because I was going to give then to the State

Did you have any motive for

Attorney, any plans?

Yeah, I didn't thinx it was

THE COURT:

aid you say?

Yeah, because I didn't think it was right what he

EL ee sees

ANN S HORNE REPORTING SfRWICE

POST OF CT SOx PHP

S42TOW LOmDs DE

I cidn't hear that last response.

giving ther to the

right.

1914

Le]

State

en Wilkers

ithe conv

remember better tc go ahe

right?

Attor

helped you to

write them down;

I think that was the conversation.

How many tires did notes to Mr.

ANN S. HORNE REPORTING SERVICE

POST OF TCE 8On PP

BAzTOW FLOMD«s ID

0 What do you mean by “not on that he wasn't"?

A Well, I had asrecd him already before thar. He

|knew I had the problem And I asked him would he check

| At for me

. Dic you tell me in a deposition that you were

| helping Ben, in return Ben was going to try to help me get

my kids when I got throuch with the divorce?

Ls I probably said scmething like that in the

| deposition. I wish he would help me get ry kids. I worked

him

when I was out

on bond.

What was the

We just got a divorce,

problem with your children?

Were there custody proceedings?

Yes.

Are they ongoing?

proceedings continue?

How long did those custody

into

ANN $. HORNE REPORTING SERVICE

POST OF CE GOn

Oma

SarzTtOw.

1916

LP]

A What are you talking about, the civorce?

¢) Yeah.

, I don’t know. She filed for divorce in December

land in February it was final.

0 What happened after. you were moved from the cell

|away from Mr. Johnson?

» I think I went to second floor isolation.

Q Do you know when that was?

}

j R No.

0 When you spoke with Mr. Johnson and had conversatiogs

;

| about his case, did you ever tell) him that you were reporting

the conversations to the Polk County Sheriff's Department?

A No.

0 Did you ever tell hir in ary way that you were an

| informant or that you were an aide to the Polk County

Sheriff's Department investigators?

a No.

Q Did you ever tell him he had a right to remain

silent and a right to have coynsel present when you talked

to him?

A No.

Q MR. SHEARER: No other cuestions of this witness.

THE COURT: Thank you very much. Mr. Pickard, you

may inquire.

MR. PICKARD: Just briefly.

ANN $ HORNE REPORTING SERVICE

POST OF NCE BOX 47

easTow

LOMA aD i 1927.

nn EEE

CROSS-EXAMINATION

‘BY MR. PICKARD:

6 vr. Smith, you knew Ben Wilkerson alreacy; dic you

not?

A Correct.

Q You had worked with him on other cases?

A Correct.

0 Those other cases had nothing to do with

Mr. Johnson; did they?

x That's correct.

6 OK. And you were placed in the Polk County jail

you were in there in November or December or somewhere

lalong in that regard?

» Right.

0 And Go you remember when Mr. Johnson was put in the

jail?

A I can't remember the date or nothing or like that.

lI can’t remember the date or nothing.

'e OK. Who was the first police officer that you ever

talked to about Johnson?

;

A I believe I called Mr. Troelsen and he was out.

nd then Mr. Wallace and Mr. Troelson both care up there.

Q Had you already talked to Ben Wilkerson before

talking to Troelsen and Wallace?

a No.

ee rostomncteon 7" 1918

BARTOW. fLOMIDA LEED

-a

zn Ff BBS

| i) OK. At the time that you talked to the first —

| police officer, that you talked to whoever it may have been,

had you already had conversations with johnson about his caset

| A Yes.

0 Had any police officer told you to talk to Johnson

j} about his case?

RK No.

Q How long had it been since you had talked to Ben

Wilkerson?

A I guess a couple or three weeks, something like that

| Q Do you know when it was?

a It was back before I got locked up.

Q The last time you talked to Ben Wilkerson, did it

have anything to do with Johnson?

au The last time before I came to jail?

Q Right.

A No.

¢ Did he tell you to go talk to Johnson or did any

police officer ever tell you at any time to go talk to

Johnson and try to get information from hin?

LS No.

Q You said at one point in time you were up on the

third floor and were transferred down to the second floor?

a Right. |

0 At whose request was that done or why was that done’

™

ANN S HORNE REPORTING SERVICE .

POST OFFICE BOX 7H . 1919

a Well, there was two reasons. One of them was I sot

my arm cut. And the second reason, {I got into a little

| arqument with my counselor up there. She's a woman. And I

guess it was my punishment for getting into an argument with

Kathy, the counselor.

Q So you requested a transfer?

A I didn’t really request it. You know, they just

moved me, because they've got DR's and stuff, you know, when

you do something wrong.

Q OK.

a They put me in some kina of isolation either the

;} third floor or second floor.

0 Did you request specifically to go down there where

Johnson was?

» No.

Q OK. That's just--that's the--that’s where they

have the isolation cells; is that right?

y That’s the old jail isolation. There's third

floor isolation and second floor new isolation.

Q Is that where they normally put people who get a

bunch of DR‘*s or have problems in the jail?

A If the other isolation is full, yes.

MR. PICKARD: That's all, Your Honor.

THE COURT: Thank you very much. Any redirect?

MR. SHEARER: Just one or two things, Your Honor.

ANN S. HORNE REPORTING SERVICE

ae POST OFFICE owe

\ Ban Tow fL Oma 30 .. 1688

(

REDIRECT EXAM

ARE R

¢ Mr. Smith, when 1 were

7 n rere est, the

‘ . xt e Mr. ; r . a

A wo, I think it was in «

vu j ™ ~-* > < 4

A Yes

0 Is that a nl ce

, Right

* Was there a t? 3 wr ;

a The lights was out in ct}

0 And y¢ were later @ ced

> on is thar r : .

A Right

Q How many days later was

THE

MR.

THE

SHEARER No other q

COURT: Thank you

SHEARER: Yes, Your

COURT: OK. Thank y

YOu pay step cown.

MR.

(Witness excused.)

SHEARER: I call Investigator %en Wilkerson.

- ed dcwnstairs to the

firse ell ye went to was

fas it

+ } .

she block?

--*

with that cell?

e cell biock.

to the cell next to

INATILON

that?

Gay. I‘*m not syre.

westions.

May chis witness then step

Honor.

ou very much, Mr. Smith.

ANN S. HORNE REPORTING SERVICE

POST OF ACE BOR

» *--«-

BARTOW. PLOMIOA KEIO 1921

A3?

BEN WILKERSON,

| having been produced as a witness on behalf of the defendant

o having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. SHEARER:

Q Please state your name and cccupation, sir.

A Ben Wilkerson, investigator, Polk County Sheriff's

| Of fice.

0 Sir, you were here in the courtroom, weren't you,

when Jares Leon Smith was just testifying?

| A Yes, 7% was.

| Q Do you know James Leon Smith?

| A Yes, I do.

Q Did Mr. Smith cooperate with you as he testified

les an informant curing 1980?

A Yes, he did.

0 Were his staterents in that regard substantially

correct?

A Yes, they wore.

Q At the--are you familiar with--exycuse me. Do you

recall a conversation such as Mr. Smith testified to where

he discussed with you for the first time the conversations

he had with Mr. Johnson about Mr. Johnson's case?

M Yes.

Q OK. At that time were you an investigator on the

ANN S HORNE REPORTING SERVICE

eintow fh mOA MD J222

——_— OS OC Or Oe; ---—- ee —— —

1 |case of State of Florida vs. Paul Beasley Johnson?

;

i * A No, I was not.

3 Q You were investigating other cases; is that correct?

‘ A Right.

‘ 0 And previous to him telling you about that conver-

6 sation or conversations that he had had up to that time with

? Mr. Johnson, had you ever asked him to have conversation

a with Paul Beasley Johnson?

9 A No, I hadn‘t.

10 ) After he told you what he told you about those

1 conversations, did you ever suggest.to him that he keep any

12 notes or memos of what was told to him?

« - aa A I believe I did. And he brought up the fact that

14 |he would not be able to remember half of the things that he

1S had told him about that day. And I said, °Well, it would

16 be in your best interest to write them down.”®

7 | ¢ Did you talk about if he heard further things from

1@ «=| Mr. Johnson that it would be better off for him to write then

19 | down?

20 » Specifically on that particular meeting, it was

21 | strictly the information he gave me at that time.

2 | Did you ever suggest to him that he--did ever at

y 3

2 any time you suggest to him that he keep notes of conver-

24 sations that he had with Mr. Johnson at future tires?

25 A I don't recall.

—EEE —— —————————e

ANN S. HORNE REPORTING SSRVICE

POST OFFICE 80x 3

BaaTow hOMDA Den . 1923

‘ ° >

i \ Is it t _ Dif

-_—

o a a Ha ing pre i ; > ew ae > write down what

; > > - ss . >»? . . >» la

; ’ y ted P ‘ P ad } : i lbié¢

f ; P ‘ , , , . *> P

4 \ wi

. 5? Ss * *> eer . > = ™ re handling

. . .

‘

. A ‘ ,

Ae ‘er , - * - + , aa - > you notes

G9 ° : 4 ‘ ; 2° 3 ¥ ** Vr ’ a. “2?

‘ A if ‘ ‘ ia

! ‘ Anc “ : f 1id you receive

12 thes

13 > ; t ‘ f ¢ eed a specific

C 4 T w ave ¢ ‘

} : Wa it st 4 > . ae ‘

if , I’m sure it w ss

17 wn AT . N . : ¢ >

18 T T 1 : “ kard

19 ; -£XAMINATION

2 BY MR. PICKARD

2) 0 Ben, what was the date that you first had contact

22 with Mr. James Leon Smith in reference to Paul Johnson's

“

24 A February Sth, 1981.

3s | C How did that come about?

ANN S&S. HORNE REPORTING SEP ACE

POST OF CE BD

BAA TOW, LOMCA Lah q 4924

A OK. I had a telephone message taken by one of the

secretaries in our Lakeland office that James Leon Smith

needed to see re. And that was taken in the early part of

the week. And it wasn’t until February the Sth which I

believe was a Thursday at 1:39 in the afternoon that I

finally got a chance to get down here to see what he needed,

Q So he requested to see you, you did not go to him;

i that right?

A Right.

0 And you had a discussion with him on Febuary the

x Correct.

0 Did he--and I'm not going tc ask you to relate

what he told you. But did he give you information as to

things that Paul Johnson had allegedly to

A Correct.

0 And these were things that had already been said

pricr to Smith coming to you?

A Correct.

G Had you told him previous to that to try to talk

|}to Mr. Johnson to get any information from him?

A No, I had not.

| 6) Were you aware of any other police oe that

did? |

A No, sir.

Qasessnstensernsnmemseers ccs iensnseshdensasiariseionebieihdesensieteintinnnapasenmmn a

ANN S. HORNE REPORTING SERVICE

POST OF CE BOE 757

earTow.

‘.OmO4 LED - 1925

| before

talk

the Johnson case about it;

Giving you information on

How long had it been prior to

; cen James Smith?

Probal ly ©exce ¢ 5 t ,

+ ree weeks r 4 ry a : it ma

OF Had y m say betwe

th or would it have t back b

had last ee mit

It would have be ; to Jar

MR. PICKARI I think the irt

irt to take judicial notice, I thi

reflects that Mr. Johnson was not ar

he county j@i1 until anuary the 9t

THE COURT: Let the record so r

So the last time you talked to

Johnson was even arres

Correct.

And at that time

to Paul Johnson or to anyone in part

Correct.

OK. And after Mr. Smith told you what he knew, you

did you not?

That's correct.

ANN S. HORNE REPORTING SERVICE

POST OF CE BOE HP

BAzTOW FLOOD. DED

cases or working

*o? : ry

February

en January 9th and

wary 9ft

-=~I wou

mk the

rested

eflect.

James 5S

bviously you did not ask his to

icular;

|} then informed the investigators who were actually working

on cases was

—_—_——

the Sth that

ld ask the

file

court

and put in

mith about

did you?

1926

AY> |

< Did you ever--atte found ;

bee *aik with Pau . r Mr.

; os ao © mati ‘ > a mi tr

. > ‘ . . ‘ * 8c -

¥ : i

" ‘ . ? io" ‘ mat

A , t

’ ’ °

id a

A ? P r

“ PICKA That's a

wr ba ‘ ¥ ¥ ¥

THE RT na ~ mucn.

« May he

Wh ‘ b ‘

7. ,

T} T ; ;*re ex ‘

- 2

(Wits ©ca Ca

, . .

MI HEA I sld call Paal

PAUL BEASLEY

’ : . pt Dest } a a _ tre if nis On

> been first duly worn, testified as

DIRECT EXAMINATION

Mt EFARER:

¢ Please state your name, sir.

A Paul Beasley Johnson.

ANN S. HORNE REPORTING SERVICE

POST OF PCE BOE PH?

BasTOW FLO™D. IEP

. that

any ins

‘ wa P

r ’

*. a

z A

™ .

’

;

at all?

and

aoa

1927

0 Sir, did you see the fellow in court who identified!

himself as James Lecn Smith?

US Yes, t did.

Have you ever seen him before?

A Yes, I have.

C Did you ever ec him in the Polk C nt )ai)

bet wes : iry--early January 981 and May list, 1981?

x Yes, I have,

Q During that period of time, going up to May list,

1981, did you have any knowledge whatsoever that he was a

government informer or was acting on behalf or in favor of

the Polk County Sheriff's Devartment in investigations?

A No, I didn't.

MR. SHEARER: No other questions, Your Honor.

THE COURT: Thank you. Do you have any questions?

MR. PICKARD: Just one.

CROSS -EXAMINATION

iBY MR. PICKARD:

0 Mr. Johnson, did you have a discussion with James

iSmath about your case?

MR. SHFARER: Objection, Your Honor, that’s not

responsive to direct examination. I asked nothing about

a conversation.

MR. PICKARD: I think that's the whole ooint of

what we're here for.

SRPMS =. shi :

ANN S. HORNE REPORTING SERVICE

POST OFMCE BOn

BAaTOW FL OMmOs Lt 1 928

= A

having been produced as a witness on behalf of the State and

having been first duly sworn, testified as follows:

MR. SHE? RER: Your Honor that's not the point of

this witness’ testimony. EKe's tcying to get admissions

from the defendant from this hearine The only cuestion

I asked wes regarc to tnowledge of the person being an

informant. I asked nething about conversations.

THE COURT: I°11 sustain your objection. I! think

it’s beyond the scope cf his direct.

MR. PICKARD: I have no questions then.

THE COURT: Thank you very much. You may step

down, Mr. Johnson.

(Witness excused.)

MR. SHEARER: Your Honor, the defense has no furthes

witnesses for this motion to suppress statements

allegedly made by the defendart to James Leon Smith.

THE COURT: Thank you. boes the State wish to

call any witnesses?

MR. PICKARD: Yes, sir, I have just one witness

I’e like to call.

THE COURT: Fine. Thank you. If you'll call that

witness.

MR. PICKARD: Investigator Wallace.

ROBERT WALLACE,

DIRECT EXAMINATION

ANN S. HORNE REPORTING SERVICE

pTOST ONCE SOx 7 . oe

: |

Po od

nm Robert Wallace, investigator with the Polk County

‘ 0 Mr. Wallace, i ipate mn the--participate

7 with ther officers in the investication f the various cases

+ uw t } Tahr > . :

5 woere tua POs : ime ; e’G

° * Yes, sir.

10 ¢ Did you come if: ntact with James Leon Smith at

1) me ff t in ti®

12 r Yes, sir

13 0 All right. When was that?

A On the €th of Fe ruar

A Investigator Wilkerson came to me and told me that

ames Leon Smith had information in regards to that case and I

needed to talk to him.

C What did you do then?

20 A Myself and Investiaator Wilkerson went into the

room and talked to James Leon Smith. And I think we briefly

m went over that he had conversation with Johnson. So myself

ra) and Investigator Troelsen then took a taped statement from

™ $rith in regards to what Johnson had told hin.

s | ) And the information that Smith gave you >. that cay

Li icenindomnbiien Se ae atoaerae

ANN S HORNE REPORTING SERVICE on

POST OF ICE BOX 8? x 4930

BARTOW, FLOMIDA IE

“

being James

sume poin

t in

Smith was information that he had previously at

the past obtained fror Mr. Johnson?

you in the past asked Smith to contact Johnson

j}and get information from him?

No,

Are

I did not.

you aware of any other police officer involved

lin the investigation who had requested Mr. Smith to get

information from Paul Johnson?

6th, did

uo,

All

I do not.

right. After the statement was obtained on the

you make any reque gs of Mr. Smith for future action

as far as attempting to get information from Paul Johnson?

thet

Nc,

Sir, I did not solicit any more assistance.

PICKARD: OX. That's all, Judge.

COURT: Thank you. You may cross.

SHEARER: No questions.

COURT: May he step ccwn?

PICKARD: Yes, sir.

COURT: Thank you.

(Hearing concluded.)

PICKARD: Judge, I do have one other witness

like to briefly call on this.

COURT: OK. Go ahead.

PICKARD: All crise It’s Earl Troelsen. Not

ANN S. HORNE REPORTING SERVICE

SANTOA, LOMOA 30K 1931

on),

———— — : ————___—_—_—_——___—

Earl Troelsen, George Elliott.

GEORGE ELLIOTT,

|having been produced as a witness on behalf of the State and

having been first duly sworn, testified as follows:

DIRFCT EXAMINATION

E MR ICKASL

Q Could you state your name and your occupation, sir?

A George Elliott, investigator with the Polk County

Sheriff's Department.

G Mr. Elliott, were you the chief investigator

assigned to the cases involving Mr. Johnson?

A Yes, sir, I wes.

Q All right. As such were you familiar with what the

other officers involved in the case were doing and the varioug

|assignnents they had and things of that nature?

A Within reason, yes, Sir.

° OK. Did you at some point in time become aware of

jan individual who had information by the name of James Leon

|Smith?

A After it was done, not before.

Q Prior to Mr. Smith coming forward, being the chief

investigator, were you aware of any police officer with the

sheriff's office or any other agency that had gone to Mr.

Smith and asked him to have contact with Mr. Johnson or to

give information on Mr. Johnson?

OS a

ANN S HORNE REPORTING SERVICE

pantow, LOMO Smo * 4932

ANN S HORNE REPORTING SERVICE

POST OF eCE GOR

SAATOW. /. OD LD

- ~ MP. >ICKARD That *s a) , J ot

( 3 THE COURT Thank y may inquire

‘ Ci S-EXAMINAT N

S RY Vi | ARI ?

é When was the first time Knew that Mr smath

; was saying that Mr Tohr had talked to him about the

a Jo? r case?

9 > Pardc

10 ¢ hen was the first time you knew about Smith's

i allegations that Paul Jo hed talked to him about his casq@?

12 A In talking with Earl Troelsen and Bob Wallace after

13 the ersatic had taker ce

K( 4 ¢ And on what date was that

1S A I could not tell vou.

, * Woulc it have been arounc February the 6th, 1981?

17 | A Well, sir, they had already taken the tape, so it

18 lwould have been within a dev or two after that I'm sure.

19 MR. SHEARDR: te other cuestions.

20 ~—CO| THE COURT: Thank you. Any redirect?

. .

2 | MR. FICKARD: jo, Your Foner.

2 THE COURT: May he ster cown? Thank you.

DB (Witness excused.)

24 MP. "ICKARD: That's all the witnesses I have on

{ 25 that, Your Honor.

edaundent = oe ae ee entliates ite =e

1933

department in

the investiga

Accordan

Paul .tohns8on

talk about Pa

THE COURT C have any othe

want to rrese nt?

MR. SHEASER N ther witne c

j r ve ar sure nt

THE C RT res, nea

MR. SHEARE® Mav it please the

ter s that what ha hee s fa

Tare Leon Smith was an inforrant for

tf irtment before hé« went int the Po

he was still a cooperat e agent with

the form of a potential

re, he was still heing c

hese being related to

tion of Paul .tohnson.

g to Mr. Smith's testime

that first time, no one

ul Johnson, but he knew

informant, had been an informant for

Sheriff*s Dep

artment. And as he dia

Mr. Johnson about his case. He initi

about his case after Mr.

regarding the

Mr. Smith cid

Mr. Johnson's

Tohnson sent

hair samples. So that

initiate the questioning regarding

charges and the case against hi.

was in the Polk

r witnesses you

» % ir Honor. I

ourt The defense !

tually is that

lk County jail, that

witness. While

ontacted regarding

cases other than

ny he met with

had asked him to

that he was an

the Polk County

testify, he did ask

ated the ovestions

them dowr here

does establish that

The--

ANN S$. HORNE REPORTING SERVICE

POST OF PCE BOR 757

BArTOW FLOmDA KMD

1934

ASD

[ a oe

1 after--according to Mr. Smith's testimony, after he haa

, ® had three conversations with Mr. Johnson, the second of

( 3 which he did not substantially talk about the case and

‘ the thire if which he does not remember the content, he

‘ then told the sheriff's investigators about what he had

‘ heard lis ec)

> . After that, what was core has to be taken into

Fy nsideration very closely by the Court. He did not--

9 vr. Smith did not have any further conversations with

10 Mr. Johnson until he had moved to the cell immeciately

1} beside Mr. Johnson. Tames Smith says that the reason

12 he was movec was because of a problem he had with

13 fellow cell persons. However, he admits that once he

( 4 was transferred to the sec i floor he was pout in @

1S Gifferent cell and not the one that is next to

, Mr. Johnson. He was put in a cell in eight block. The

, very same cay for a reason for which we can only infer

18 motive or intent, Mr. Smith was moved into a cell very

;

19 next to Mr. Johnson. After that time he saic that

20 Mr. Johnson talked to him about his case. And after

an | that time, he made notations allegedly about these

2 supposed conversations, this cccurring after the time

DB when Ben Wilkerson had mentioned to him that he should

pT take notes in orcer if he has oroblems remembering

4 25 things when they were talking about conversations that

EE — ————————————

ANN S$ HORNE REPORTING SERVICE =e 1935

POST OF NCE BON FH? _

; BARTOW F.OR.Da IED Dd oes al

hae | ASI

c 7 ares

’ Smith had with .Johr

7 ° Your He » the efense is not able to oresent or

3 t find t who exact 1t Mr mith next ¢t

4 Mr hr nin that ell, who moved him from the eight

< " *k cell over ¢ the even b}) *k cell where the two

6 [ them were ice t le in an therwise ae nerally

7 i latec area where Mr. Smitt uld then ask Mr. Johnson

8 at t his case and write his little diaries

y I ask the ¢ rt to take into consiceration the

10 totality of the circumstances here where you have a

1} person who hac acted as an informant before for the

12 sheriff*s department, who after talking with Mr. Johnson

13 reported to them regarding his activities, regarding the

« 4 conversation he had had and that he had told regarding

1S note taking, that he had then moved to a cell right

16 next to Johnson and that the then takes notes and

| ’

17 continues to report to the sheriff's cepartment,

is | turning these notes a number cf tires, returned back to

; ,

19 | that sare cell where he hade been put next to

20 | Mr. Johnson, continues to report out.

21 The argument that the State may contend, that this

2 is all coincidence I'd say is an argument of sheer

2B folly. To say that a known informant who has already

24 given information that he had a conversation with

28 Mr. Johnson would be coincidentally just put in the cell,

ANN S HORNE REPORTING SERVICE

POST OFFICE GOx 7B?

Asa

(

Very next to Mr. .tonnson. I say that is a contention

which is sheer folly. An@d I ask the Court to rake a

reasonable inference based n the facts which are

presented before t that is that somebody thought

it was a good idea t r e Mr J on--excuse me--to

My Smit) ext @ Mr , enor

I ask the < rt ¢ take sdicial notice it's a

1 21 known fact 1 thi irisdiction that the Polk

t 811 in which these tw gentlemen were housec at

the time is run and erate by the Polk County

heriff’s Department, the very same agency which does

or which was and is conducting the investigation against

Mr. Johnson in this very same case. The very same

agency which was investigating the case had control

here Mr. Srith and where Mr. Johnson was housed.

The knew that Mr. Smith was an informant and knew that

he hac given inforration about Mr. Johnson. He was put

in a cell right next to vr. Johnson by the same agents

anc they continued to take his notes. To say that they

had not specifically asked him to do anything particular

or to obtain this material is ridiculous because what is

not exnlicit is certainly implicit. And the Court has

the responsibility of not just looking at form, but

looking at substance in matters of this kind, to note

and to look beyond the wording, the careful wording that

ANN S HORNE REPORTING SERVICE

POST OF FICE @OX 797

S42 TOW. FLOmO4 ED 1937

’ |

sheriff's depart

. | _

he ild 3

he wa moved by

Vr 7 © nr Ar

. “3 nti

there as tneirz t

ric sic esr

. bof ore

Gderation a

law which iS cur

cme C ir? 4

tnat Henr cas¢

( i3rt in the Mal

_ ensatior er

A ’

t cy Sai in fa)

the re

to obtain f

able

Surreptitious St

from the

incriminating statements without

and

The Uni

right.”

therefore violation of

ment knew what Mr Smith was anc what

what kind f note ne s1d take And

some! wit the denartment next to

The x o. t 1° And they qcnew tnat |

; > . + 7 : *?, af he wa not

all wher have a pers< who has cone

ehe rt ft tare these facts into

put t m in>the light underneath the

rene if the ' ited “States under the

f mn the Henry ase as well as the--

S interpretec by the Florica Supreme

e nSe The Malone case notes that

the informant is not of importance. As

one, “Alth sh it does not ostensibly

cord that the informant gained any

State for the disclosure that he was

rom Mal e, it was indirect,

ate action which elicitec Malone's

assistance of counsel,

Malone's sixth amendment

tec States Supreme Court in Henry =

ANN S HORNE REFOATING SERVICE

POST OF PCE BOE 97

BAATOW /LC™DA FED

it i oe

attaches to the defendant in custody. They recite the

Messiah case which was 4 person in custody who was--whesd

conversations were surreptitiously monitored without

notice that he has a right to counsel anc--or that he

was even being monitored by an agent of the government.

The United States Supreme Court says that this is much

different than in a case where a person is out of

custody and is free on the street and an undercover

agent comes un and talks to him and the defendant does

not know that he's an undercover agent. It's entirely

Gifferent when the defendant is in custody, particularly

in custody under those same charges for which the

informant is asking him questions.

The Henry and Malone case both involve cases like

the instant case where you have a jail inmate who has

talked to investigators working the case against the

defendant who then goes and has conversations with the

defendant about his particular case. And I‘é say--I‘d

ask the Court to consider that these cases are very on

point and that they are binding on this Court and-ask

that you follow them in suppressing, I would submit to

the Court, all the statements made by--allegedly made by

the defendant to Mr. Smith in that he has a government

informer before he got in the jail ina paw Aor

be ~~

described what that sixth amendment right is ard how it

———— +

ANN S HORNE REPORTING SERVICE

eantow. )comon Ime 1939

i a a

————— ———

capacity. But reqardless of *he Court's ruling

recarding all the statements I think the Court is

certainly obliged to surpress all the statements that

Mr. Smith said were made after the point that he

reported to the investigators and was moved to the cell

that's next to Mr. Johnson. He knew what he was doing.

He was moved there. And they knew he was continuing to

rt to them. He was from that point on certainly @

person who the investigators for the sheriff's

department knew was working as an aide to them in the

investigation against Mr. Johnson.

And therefore I would say to the Court this

establishes that he was an arm of the government. I

would not go into the long infermation of how United

States vs. Henry and Messiah cases explain how the

government person or acent in any respect is going to

talk to the defendant about his charges. He has a

right to--the defendant has a right to be advised that

he is such a nsatnhds that he is such a person working

with the government, ard that he has a right to counsel

and the right not to sreab to hir.

For those reasons and for the authorities cited

and fer the facts which are fairly clear especially

after Mr. Smith was--talked to the investigators and

put in a cell next to Mr. Johnson, I ask that all these

ANN S HORNE REPORTING SERVICE

POST OF CE BOR D8? ”

Bar tOw 1. C™O4 EMD P

1910

, a

ce allegedly statements be suppressed, because they are in

on > violation of Mr. Johnson's sixth arendment right to

< 3 insel, fifth arendment right not ¢ incriminate himself,

‘ a: jue proces right of law

¢ Thank you very

6 THE COURT ; 4 Pickard, do you wish

’ to respond?

4 MR. PICKARYS - | ntially, as I

9 inderstanc it, the bottom line is whether when Mr. Smith

10 was having his « versations with Paul Johnson, whether

1} he at that time was some sort of a government agent or

i2 working at the behest or request of some police agency

3 in doing it. And I think that the fact that the police

14 were not even aware f it until after the conversations

15 already happened sho that he was not working as a

16 | police agent at the time. I don’t think the fact that

17 Mr. Smith in the past been an informant reans that if

is | you are an informant once, for now, forever and a day

9 | in the future you are always an informant and everything

ic ’

20 —CO you Go on one case necessarily means that you’re an

21 | informant cn" anything else you do for the rest of your

2 | life. It doesn‘t work like that especially where it has

a been a month or 45 days or so before mr. Johnson was

24 even put in the jail that he had had conversations with

( 2s any police officer and had nothing to do with

ANN & HORNE REPORTING SERVICE

POST OFFICE BOX 7

] ,

’ Mr. Johnson because he od not even been arrestec then.

{ ; Ang Mr. Smith on his n without talking with anybody

5 a- — ° ? ~ _~ he Ceara or sr re olee

: a ft 1 ce oe ‘ t y pt

4 4 > i? he i 2 , > sve r* > ir he jeil

c ,

, - sul r if M ) want t trust AMes

° ’

¢ , : . > ’ , > > y > ¢ r “= ¥

ar eli } if c, e ru ri

, , C = +? may later : > the ' ice tut » or Smith

. : i . , i va nis wn

9 :

lative anc wa f t be ’ e the 1 lice or anyt sy

10 > ’ , 7 , ; Cs the > ere is , »* . ille jal or

12 ‘ trust the wror mer

j t t 7

3 The cases cited by the defense are different from

> if *> j ta . ré pe . that if > *> ef tho e

1S " : "

: , the Henry cas« incl st he Maione case, prior to

16 mw . , > ’ > ; " ' ‘ + 7, » ’

a conversati is @ sll] that the inforran overhearc,

17 .

the informant went ¢t the police or the police went to

the informant. And the aware that the

informant was in a position to obtain statements from

the defendant in the jail before the first statement was

2 CO

made. And that's completely different here in that

Mr. Smith did not even go to the police until after

ya)

| statements had already been made to him. The police

indicated that once they were aware that statements had

iia

\ - | been made to Mr. Smith they made no request of him, dic |

ANN S HORNE REPORTING SERVICE

POST OF NCE BOx FH?

Gar TOW f.OmDA IMD 1912

AS8

not tell hir to go back and get more information, simply |

took down his information and sent him »ack into the '

jail. Mr. Smith later got other information and reported

it to the police. That's his doings. And that’s

Mr. Johnson's doings if he wants to trust Smith. But

the bottom line is, as I said, it was not done at the

request of any police officer or police agency. And

under those circumstances, there is no governmental

involvement in it. And the statements are not inadmiss-

ible.

THE COURT: Thank you. Do you wish to respond?

MR. SHEARER: Just briefly, Your Honor. It seems

Mr. Pickard thrusts his whole argument or the statements

made before fr. Smith went to the sheriff's investigatorg

and he speaks about how at that time he--the investi-

gators were not aware of it and he did it on his own.

I would note that Mr. Pickard does not argue

strenuously regarding the statements made after he

talked to the investigators. Indeed most of the

alleged statements that Mr. Smith reports having

occurred occurred after the time when he was put in the

cell next to Mr. Johnson, after he talked to the

investigators, after he started this note taking

process. I would say to the Court that regarding that

initial conversation or the initial three conversations

ANN S HORNE REPORTING SERVICE

eosT

ocean eon 1943

AS?

1 that Mr. Smith reported having occurred before he

Pa 2 | talked to the investigators that this may be a close {

ee question for the Court. rT still submit our argument

‘ regarding the time after he reported to the investigators

s and they knew what was going on and he was put in the

é cell next to Mr. Johnson and he did continue to make his

7 notes and report about any < ersations. Those

as statements certainly, I mean, from that point on

9 Mr. Smith was certainly working as a government agent

10 if they did not explicitly say, "Do this for us,” it was

1} implicit in their tinuing and their having the

12 initial conversation with Mr. Smith, taking a taped

13 statement of it and continuing to take his notes, etc. j

14 The surreptitiousness used by a particular investigating

1s | agency cannot overr.de the substance of what the United

16 States Supreme Court .s trying to avoid and the Florida

17 Supreme Court ac well. The law affords the type of

a Situation where she investigating agency is using

19 incividuals to do the work which they are not allowed

20—COS by law to do. That is to go and question an individual

21 | without reading him his rights. And I would say to the

2 | Court that the substance of what occurred here is that

2B Mr. Smith after speaking with the investigators

24 especially was from that point on a government person.

4 25 And those statements certainly from that point on should

ANN S. HORNE REPORTING SERVICE

POST OF HCE BON 787

BAtTOW Ff _ONDe ID 1944

‘4 MR. PICKARD: Only that I cisagree with that. I

‘ don’t think just because when somecne goes to the police

6 and says, “I have information Here is the information

7 tr have.” at that point in time he automatically

“ be mes a government agent and that anything that

9 happens after that is automatically illegal True, the

10 ' law says the police cannot request--cannot plant

11 somebody in a jail or in some facility to get

12 information. The law does not say the police have to

3 stop it if they knew it’s going on as long as they

“mw tC didn't have anything to do with it. If the police--if

1S | they want to sit passively by and receive information

16 | from someone who is in the jail talking to some other

17 inmate, there's nothing wrong with that as long as they

18 | do nothing to cause it to happen. If they don’t request

19 | it to happen or tell the person to go do it, if they

20 want to sit back and listen to what information is

21 | developed, that's fine. But to say that as soon as the

2 inmate Smith comes to the police the first time and says,

23 "I've got information,” at that point the police are

24 under an obligation to cut it off and say, "Well, you've

28 done as much as you can do. Anything else in the future

— asiinamandand a —

ANN S. HORNE REPORTING SERVICE

POST OFFICE BOR 757

Bar TOW. FLOmOA IE 1945

; 3; ¢ he egai,” : ct ¢F x the iw says that

- ; ‘ ; white? 7 , . e had . *?> J > : with

what mit wa A t } t a rding to all

the testi f m al ; r¢ ‘ and ™ Smith,

*> sid it » s ~~ ° a?

THE COURT Thank you $ e I gave him one extra,

I*ll give “8 . rt t

MR. SHFAPER: Just briefly. Again, it’s obvious

what was happening and the fact that the police found @

. . ] > ve , . Tcha ic ler ce

way tO CO it very surreptitiousiy coes

what was happening. I think the movement of the jail

cells and the notes and the continuing

with the investigators show what was really happening

especially after it was reported. ke was working for

the government. I think it’s obvious and I ask the

Court to find so. Thank you.

THE COURT: Thank you. Gentlemen,

is a easily distincuishable case in thi

manner. In Malone there was an elaborate scheme set up

by the informant. In that particular case I believe

they moved him out of the jail and then had him come in

in plain clothes and told him basically

after and what they wanted Malone to solicit--excuse me--

the undercover informant what they wanted toelicit from

Malone in that particular case. So I'm

———-——- a - —_

ANN & HORNE REPORTING SERVICE

POST OF CE POR

BARTOW FL OmOA KD

not get around

conversations

I think Malone

S particular

what they were

going to in

nscconiiananitiiieaaa

1946

of wurse, i thi

enry “the ag

-, > mace by the

question as cited

the governrent ha

of the accused by

stateme ee Lad - >

t- ’ ; > i ‘ } Ma € j

Surreptitious interrogation of

did not, then there would be nc

relationshir between client and

rately

Contrary to what Mr. Shear

Court or what Mr.

mply from the testimony

nothing that hasn’

of Mr. Smith from

to be done at the

Shearer asks

that's

t been explai

one cell

Girection or

delibe

the def

interf

: e and |!

‘ ly

chat ase

e ng the

“ Be ft do.

or iret ase,

i note also

> > any state-

ion was whether

right to

incriminatin

ing

ate opinion by

elieve serhaps °c:

If they

erence with the

counse]

er has related to the

the Court to infer or

been

ned as

to the other.

given,

there is

to the movement

That appears

cause or direct order

ANN S. HORNE REPORTING SERVICE

POST OFFICE GOn PH?

BARTOW HOMO I

counsel

19397

of any of the detectives in this particular case or any

2 of the other officers for their purposes of investi-

( |

3 gation or surrentitiously or in any other fashion.

¢ | There appears that Mr. Smith himself by his own testimony

s and it aopeared to the Court, and I°ll rote somewhat

6 | candidly and did not appear to be rehearsed in any

‘

fashion, explained his reasons for being moved to that

8 particular cell and, in fact, in cross-examination

’ | explained it in a little more detail as being why he

10 was moved to one cell and then over to another cell.

my In any event, the testimony today is devoid of any

12 suggestion other than a reasonable one as related by

3 Mr. Smith as to why he was placed in that position.

« 4 Also, the officers have all testified that none of them

is directed or told or in any fashion tried to get

16 | Mr. Smith to elicit these statements from Mr. Johnson

7 | especially the first statements. And it gets to be a

8 | closer question on the ones where he was making notes.

9 | But apparently there were merely, as Mr. Pickard has

20 said, passively receiving those things. Finally

21 | Mr. Smith himself testified that he was doing it all on

2 | his own. In light of all the testimony that I've heard

2 and in light of the question that I believe this Court

- needs to answer as related to this Court by the Henry

{( 2 :

decision and the Supreme Court and adopted obviously

ANN S. HORNE REPORTING SERVICE

POST OFFICE BOX 7

BARTOW FLORIDA INO 19418

AbYy

— ——— , a

’ | by the Supreme Court in Malone and addressed in Malone,

2 I believe this Court has no choice but to find that the

( 3 officers did not directly or surreptitiousiy or in any

‘ fashion direct Mr mith to do what he did. In light

5 of that, I am going t ler your motion as to Mr. Smith‘¢

tatement whatever te he ma sve in this

6 J

- particular matter,

& MR. § ARE F Ver well, Your nor. Your Honor,

9 regarding the remainder of the motion regarding the

10 statement alleged! mad t Larry Bz kelbank, the

1} lefense is not prepared to proceed at this time without

1 | the availability of Mr. Brockelbank.

13 THE COURT All right I indicated to you

Mr. Brockelbank testify. I don’t know what the mixup

17 was I don’t know whether I signed an order and it just

18 got lost samewhere or whatever. However, we'll look

19 | into that after this hearing. And if we need to, we'll

20 sign another order or find the order that was missing

2) and see if we can't get him down here as auickly as

nN possible. And hopefully, we can do that next week

2 sometime. We'll just have to set aside an hour or

24 whatever time we may need.

( 25 MR. SHEARER: Thank you, Your Honor.

— — ee

——— . —— ——_$_—_— — —

ANN S. HORNE REPORTING SERVIC

POST OFFICE BOR PH?

BARTOW. FLOMOA IED 1949

CERTIFICATE OF SERVICE

WILLIAM C. McLAIN. a member of the Bar of the

a, Wibod

. . . g ™ .

December 1. 1983, pursuant ti ipreme irt Rule 25 I served

a singie py of the foregoing etic n for Writ f ertiorari

t tne ipreme ourt ’ PioridGga wit? attached Appe tix nm eacn

‘ + —_ ‘

pat cs as ‘ ‘ ws

t the tate r Fi“~riga The me ent DY ,€, siting

sid y ji the nitec tates t . Bartow Florida

= *> ‘ “er 1s : 7 age OrepDa : ’ eri ad es ed . a ert

“y er int Arr . ce ener " ba. . iTnrhe i Buii ling

f ; eet Str , r impa ri : >5C

+ >

t i ; aa ‘ t

vrwwy + on. WY wer > -

ai we s

a AS 2

‘ btant etencer

Case No. OY -5924-—

IN THE

SUPREME COURT OF THE UNITED STATES

Dp rtee

réevcataoner

STATE OF FLORIDA,

Respondent

Mary » - LEA‘ T PR , r

i FORMA PAUPER

Petitioner PAUL BEASLEY JOHNSON, asks leave to file

the a ache Petition f writ ertiorari ¢t the Supreme

r F rida with prepayment f sts and to proceed

in forma buperis pursuant ¢ Rule 46 In support f this

motion etitioner states

That he was convicted on September 23, 1981,

in the rcuit Court for Lake Count Florida, for three first

degree murders, two robberies, two attempted murders, a kid-

napping and an arson

d That he received a sentence of death for each of

his three murder convictions and is presently in custody on

Death Row at Florida State Prison

} That he appealed to the Supreme Court of Florida,

and that Court affirmed all of his convictions and sentences.

- That he has been represented by appointed counsel

throughout his state court appeal proceedings

5 That his affidavit of insolvency in support

of this motion is attached

Respectfully submitted

Assistant Public Defender

Chief, Capital Appeals

Case tio 83 -5924

IN THE

SUPREME COURT OF THE UNITED STATES

AFFIDAVIT IN SUPPORT OF PETITIONER'S

MOTION TO PROCEED IN FORMA PAUPERIS

PA BEASLE HNSON, being first duly sworn

jer s ’ eh . T — the _* . 7 . in eh is - . 4

c ea $a A la € etici e e above-stvied

ase, tha support of my motion to proceed on my Petition

for ert ra withous: being equirec ¢t prepa fees, costs or

give securit therefor I state that because of my poverty, I

am unable to pay the costs of said proceeding or to give se-

believe I am entitled to redress

‘

| further swear thar the responses which I have made

to the questions and instructions below relating to my ability

to pay the costs of the proceedings are true

] Are you presently employed? Yes No x

a If the answer is yes, state the amount of your

salary or wages per month and give the name and address of your

employer

b If the answer is no, state the date of your last

employment and the amount of the salary ani wages per sonth which

you received. January 8, 1981, carpenter, $600 or $700 per

month take home

2. Have you received within the past twelve sonths

any income from a business. profession or other form of self-

employment. or in the form of rent payments. interest. dividends

or other source? Yes No x

a If the answer is ves, describe each source of in-

come, and state the amount received from each during the past

twelve months

j Do you own any cash or checking or savings account?

Yes N = &

a If the answer is yes, state the total value of the

items owned

4 Do you own any real estate, stocks, bonds, notes,

auton ile r other valuable property (excluding ordinary

household furnishings and clothing) Yes No x

Aa If the answer is ves, describe the property and

state its approximate value

- List the persons who are dependent upon you for

support and state your relationship to those persons

I understand that a false statement or answer to any

question in this affidavit will subject me to penalties for per-

jury

Subscribed and sworn to

7 a me this day

of s i3

ary Public

My Commission Expires

Mtaet «ea ’ "ining

Oy emer Ieperes: ee. 4. 10S

Aint Dus —< eee ¢.

1, WILLIAM C. McLAIN, « member of the Bar of the

Supreme Court of the United States and counsel of record for

PAUL BEASLEY JOHNSON. the Petitioner. hereby certify that on

December |2. 1983. pursuant to Supreme Court Rule 28. I

served 4a single copy of the foregoing Motion for Leave to

Proceed In Forma Pauperis with attached Affidavit of Insolvency

on each of the parties as follows

On the State of Florida, The Respondent, vy depo-

siting said copy in the United States Post Office, Bartow,

Florida, with first class postage prepaid, properly addressed

to Robert J. Landry, Assistant Attorney General, Park Trammell

Building, 1313 Tampa Street, 8th Floor, Tampa, Flordda 33602

Assistant Public der

Chief, Capital Appeals

Hall of Justice Building

455 North Broadway Avenue

Bartow, Florida 33830

(813) 533-1184 or 533-0931

COUNSEL FOR PETITIONER

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