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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983

## Text

? %
83-5924

Case No

IN THE

F LED

DEC 15 as

i.

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,

vs

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
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

é
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.

oe

PACL SEASLIY COMNSOM, Appellart.

v.
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 . 4 e.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.

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& 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? :
ithe Polk County heriff*s epartment as an informant?
2

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?
C
. 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

pv

20

21

24

A
C
aR
0
jail fr
contact
w
¢
as an
A
9

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

12

-—--

|continuing potential witness reference to any nvestigations |
, |

!
; that you had cooperated with?
s
« , Yes.
3
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 ?
i
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
iy
1. jat the sheriff's department.
i
|
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

2

20

21

24

‘ "ha
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on she >
;
ase
A
‘
aiscuss

conver:

a

-

C

) ? 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

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~-
Pn
_
~
4
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?

4
-
£

A

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
A

0

A

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

13

24

2s

,
( wit . . " t : ity
m ¢ 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

17

4 o Mr a hneon's cell >

} placed in relation to 11
4
% 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

a)

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

“(

ta

20

21

24

Le)

-

State

What

A

16

ae
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]

9

19

20

21

State

en Wilkers

ithe conv

A

Q

remember better tc go ahe

right?
a

¢

al

ro

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

.

G

_

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

;

i

|

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

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

Z)
"

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.
t

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

e
'

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.

3
ANN S. HORNE REPORTING SERVICE

ae POST OFFICE owe
\ Ban Tow fL Oma 30 .. 1688

~~

(

2

v

24

25

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 ™ ~-* > 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?

we

~

r

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

26

——_— OS OC Or Oe; ---—- ee —— —

i
1 |case of State of Florida vs. Paul Beasley Johnson?
;
j
'

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.
j
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

B
a
&
“

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

20

21

24

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
es

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

AX

29

2

20

21

24

| 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
h.

,

eflect.

James 5S

bviously you did not ask his to

icular;

|} then informed the investigators who were actually working

on cases was

30
—_—_——

the Sth that

h.
ld ask the
file

court

and put in

mith about

did you?

1926

AY> |

SY

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
J
DIRECT EXAMINATION
4
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
™ .

yr
~
’
;

at all?

and

aoa

1927

AY

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

f*

= 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
'
i
'
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,

PA

DIRECT EXAMINATION

ANN S. HORNE REPORTING SERVICE

pTOST ONCE SOx 7 . oe

33

: |
Po od

Ld
+

=

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®
i
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.

21

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

0

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?

i

0

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?

A

C

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?

A

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

36

37

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

Ue

18

19

20

24

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

a

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
ee
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
. + 7 : *?, af he wa not
J¢ i . I — 31d Dpmit t t © Court,
all wher have a persthe 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

ed

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

43

2

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

44

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
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

8 > »*?> ‘ > . » © cr -~
. : 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
u wrong a: ae 2 © Yersati : Mr. Johnson just chose
12 ‘ trust the wror mer
j t t 7
3 The cases cited by the defense are different from
j

> 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

~s
>
.
-
'
al
-

19
informant was in a position to obtain statements from

20
the defendant in the jail before the first statement was

2 CO
made. And that's completely different here in that

8

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

ya)
| statements had already been made to him. The police

24
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

19

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?

47

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 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

20

21

2s

a

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

3

|

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
9
‘

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

$3

— ——— , 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
j
vrwwy + on. WY wer > -
ai we s
a AS 2
‘ btant etencer

Case No. OY -5924-—

IN THE

SUPREME COURT OF THE UNITED STATES

r

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

‘
t
|
,
.
7
®
4
®
t
ra
3
re
os
~
re

| 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1717%3A1. Public record. Not legal advice.