Petition — King v. Florida

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. SUPREME COURT. U.S. |

No. A-348

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

RICHARD KING,

Petitioner,

Vv.

THE STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

WARREN H. EDWARDS

65 North Orange Avenue

Bradshaw Building, Suite #101

Orlando, Florida 32801

(305) 425-7676

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED

1. Whether the Florida Supreme Court erred in upholding the

finding that Petitioner was competent to stand trial and thereby deny

Petitioner due process and equal protection of the law under the Four-

teenth Amendment to the United States Constitution and deprive Petitioner

of effective assistance of counsel in his defense under the Sixth and

Fourteenth Amendments to the United States Constitution.

2. Whether excusing for cause jurors who state they are opposed

to the death penalty but can sit and impartially decide the issue of

guilt or innocence violates the right to trial by a jury selected from

a respective cross-section of the community as guaranteed by the Sixth

and Fourteenth Amendments to the Constitution of the United States.

3. Whether the admission into evidence of written and oral state-

ments obtained after exercise of right to counsel and right to remain

Silent is a violation of the right to counsel and the privilege against

self-incrimination as guaranteed by the Fifth, Sixth and Ninth Amend-

men*s and the Due Process Clause of the Fourteenth Amendment to the

United States Constitution.

4. Whether the admission into evidence of inflamatory photographs

not relevant to any issues of the case violates the right to a fair

trial by an impartial jury as guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution.

5. Whether the admission into evidence of testimony which had the

sole effect to show a propensity toward violent acts or bad character

violates the right to a fair trial by an impartial jury as guaranteed

by the Sixth and Fourteenth Amendment to the United States Constitution.

6. Whether limiting and restricting Petitioner's cross-examination

of key prosecution witnesses violates the right of an accused to be con-

fronted by his accusers as guaranteed by the Sixth and Fourteenth

Amendments to the Constitutuion of the United States.

7. Whether the Florida Supreme Court erred in upholding the denial

of Petitioner's Motions for Judgment of Acquittal when no prima facie

case was established as to the issue of premeditation and thereby denying

Petitioner of due process and equal protection under the law and denying

Petitioner the right to a fair trial under the Sixth and Fourteenth

Amendments to the Constitution of the United States.

8. Whether Florida's death penalty as contained in Plorida Sta-

tute 921.141 has been applied in an arbitrary and inconsistent manner

thereby violating the Pifth, Eighth and Fourteenth Amendments.

9. Whether Plorida's policy of according some defendants in

capital cases the benefit of a pre-sentence investigation and denying

others of this benefit violates the right to due process of law, equal

protection of the law, effective assistance of counsel, and the right

to be freedom cruel and unsual punishment as guaranteed by the Eighth

and Fourteenth Amendments of the United States Constitution.

10. Whether the Florida Supreme Court erred in affirming the impo-

“4 “sition of the death penalty when the evidence was found by the Florida

Supreme Court to be insufficient to establish that the homicide was

committed in a cold and calculated manner and the aggravating circum-

stances that were upheld by the Florida Supreme Court were not weighed

in an even manner thereby resulting in a violation of the Eighth and

Fourth Amendments of the Constitution of the United States require-

ment that the State's power to punish be exercised within limits of

civilized standards and the due process and equal protection clauses of

the Fourteenth Amendment of the Constitution of the United States.

TABLE OF CONTENTS

QUESTIONS PRESENTED. ......+++++ coeeeserees coer erreeerereresees es i

TABLE OF CONTENTS.......- Perrrrr rrr eee eee eee ee coerce cevecrccces . iii

TABLE OF AUTHORITIES... cece cccceeeceeeeeeeeseeeeseseseee eeececes Vv

OPINIONS BELOW..... SerrTrrrrrrr rrr eee eee ee ee eccccccccecs eeeces 1

JURISDICTION OF THE COURT... .cceeecccccereceeeeesecseseess eeecee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.....-.eeeeeees ° 2

STATEMENT OF THE CASE... cccccccccvccccsecsscesssesesesessesesess 3

REASONS FOR GRANTING THE WRIT... ccccccccccccccecseseseesesssesse 7

I. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

FAILURE TO FIND PETITIONER INCOMPETENT TO STAND TRIAL

VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS......++++. 7

II. THE COURT SHOULD GRANT CERTIORARI BECAUSE THE FLORIDA

SUPREME COURTS EXCLUSION OF PROSPECTIVE JURORS WHO ARE

OPPOSED TO THE DEATH PENALTY BUT CAN SIT AND IMPARTIALLY

DECIDE THE ISSUE OF GUILT OR INNOCENCE IS UNCONSTITUTION-

AL AND CONFLICTS WITH THE SIXTH AND FOURTEENTH AMENDMENT

REQUIREMENTS FOR JURY SELECTION SET OUT IN DECISIONS OF

THIS COURT...... eoccccccces TOerrrre rrr ree eee ee ee ee 9

III. THE COURT SHOULD GRANT CERTIORARI BECAUSE THE ADMISSION

OF THE WRITTEN AND ORAL STATEMENTS OBTAINED FROM PETI-

TIONER CONFLICTS WITH THE APPLICABLE DECISIONS OF THIS

COURT AND THIS COURT'S INTERPRETATIONS OF THE FIFTH,

SIXTH, NINTH AND FOURTEENTH AMENDMENTS........-. eeccccce 13

IV. THE COURT SHOULD GRANT CERTIORARI BECAUSE THE ADMISSION

OF CERTAIN EVIDENCE CONFLICTS WITH APPLICABLE DECISIONS

OF THIS COURT REGARDING AMENDMENTS AND THEIR REQUIRE-

MENTS FOR A FAIR TRIAL BY AN IMPARTIAL JURY......-.+-- 18a

A. THE ADMISSION INTO EVIDENCE OF INFLAMATORY PHO-

TOGRAPHS NOT RELEVANT TO ANY ISSUES OF THE CASE ’

VIOLATES THE RIGHT TO A FAIR TRIAL BY AN IM-

PARTIAL JURY AS GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS... .--escccccecccscescseses 18a

B. THE ADMISSION INTO EVIDENCE OF TESTIMONY WHICH

HAD THE SOLE EFFECT TO SHOW A PROPENSITY TOWARD

VIOLENT ACTS OR BAD CHARACTER VIOLATES THE RIGHT

TO A FAIR TRIAL BY AN IMPARTIAL JURY AS GUARAN-

TEED BY THE SIXTH AND FOURTEENTH AMENDMENTS. ... 19

V. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

THE LIMITING AND RESTRICTING PETITIONER'S CROSS-EXAM-

INATION OF KEY PROSECUTION WITNESSES VIOLATES THE RIGHT

OF THE ACCUSED TO BE CONFRONTED BY HIS ACCUSERS AND

CONFLICTS WITH THE SIXTH AND FOURTEENTH AMENDMENTS RE-

QUIREMENTS FOR CROSS-EXAMINATION AS SET OUT IN DECI-

SIONS OF THIS CPE #6 046600066 6b 6O08 060 0666 Case E SBS s be 21

VI. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

FAILURE TO GRANT PETITIONER'S MOTIONS FOR JUDGMENT OF

ACQUITTAL WHEN NO PRIMA FACIE CASE WAS ESTABLISHED AS

TO THE ISSUE OF PREMEDITATION VIOLATED THE SIXTH AND

FOURTEENTH AMENDMENTS... .cccceccccsesscesesssesssssese 23

VII. THE COURT SHOULD GRANT CERTIORARI BECAUSE FLORIDA'S

DEATH PENALTY AS CONTAINED IN FLORIDA STATUTE 921.141

HAS BEEN APPLIED IN AN ARBITRARY AND INCONSISTENT

MANNER THUS RENDERING IT UNCONSTITUTIONAL AS IT CON-

PLICTS WITH APPLICABLE DECISIONS OF THIS COURT IN ITS

INTERPRETATIONS OF THE FIPTH, EIGHTH AND POURTEENTH

(GEES 6-6-0-0-0000-008-6-0660040546000000-04506000800664 26

VIII. THE COURT SHOULD GRANT CERTIORARI BECAUSE FLORIDA'S

POLICY OF ACCORDING SOME DEFENDANTS IN CAPITAL CASES

THE BENEFIT OF A PRE-SENTENCE INVESTIGATION AND DE-

PRIVING OTHERS OF THIS BENEFIT IS CONSTITUTIONALLY

INTOLERABLE AND DENIES PETITIONER HIS RIGHTS AS

GUARANTEED UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS

AS DETERMINED BY THIS COURT IN APPLICABLE DECISIONS.. 28

IX. THE COURT~SHOULD GRANT CERTIORARI BECAUSE THE IMPO-

SITION OF THE DEATH PENALTY ON PETITIONER IS UNCON-

STITUTIONAL AS THE AGGRAVATING CIRCUMSTANCES IN THE

CAPITAL SENTENCING WERE NOT WEIGHED IN AN EVEN HAND

AS REQUIRED BY APPLICABLE DECISIONS OF THIS COURT

REGARDING THE EIGHTH AND FOURTH AMENDMENTS........... 29

CORD d ck octsciicsscvces odedecuseeséec $006304 5600545 see 33

APPENDIX A: OPINION OF THE SUPREME COURT OF FLORIDA..... A-1

APPENDIX B: ORDER OF THE SUPREME COURT OF FLORIDA DENYING B-1

APPELLANT'S MOTION FOR STAY OF EXECUTION.......... kmas

APPENDIX C: ORDER OF THE SUPREME COURT OF FLORIDA DENYING c-1

APPELLANT'S MOTION FOR REHEARING..........ccceececs one

APPENDIX D: ORDER OF THE TRIAL COURT'S FINDING OF FACTS.. D-1

APPENDIX E: ORDER OF THE TRIAL COURT'S JUDGEMENT AND

SEEGER s cc ccccccescucccccceccecess eebCeedeanssedaces eee E-1

APPENDIX F: FLORIDA STATUTE 8921.141........ccccccccccccs F-1

APPENDIX G: FLORIDA STATUTE §913.13........ ccebesosacere G-1

APPENDIX H: RULE 3.131, FLORIDA RcrP........ccccccccccece ; H-1

APPENDIX I: RULE 3.131, FLORIDA aces. .........00.. duwate , I-1

APPENDIX J: TRANSITION RULE 23(a)...... (exgecdewessea wen J-1

APPENDIX K: CHAPTER 79-336, LAWS OF FLORIDA......... seu K-1

APPENDIX L: FLORIDA STATUTE 890.404(2)....--ccccccccee : L-1

TABLE OF AUTHORITIES

CASES CITED PAGE

Alfred v. State, 322 So.2d 533, 540 30

(Fla. 1975)

Antone v. State, 382 So.2d 538, 534 32

(Fla. 1980)

Barwicks v. State, 82 So.2d 356 19,20,21

(Fla. 1955)

Blair v. State, 371 So.2d 224 22

(Pla. 2d DCA 1979)

Boulden v. Holman, 394 U.S. 478 9,23

(1969)

Boyett v. State, 68 So.2d 931 23

(Fla. 1950)

Coco v. State, 62 So.2d 892 22

(Pla. 1953)

Coker v. Georgia, 433 U.S. 584, 53 L.Ed.2d 27

982,989 (1977)

Cooper v. State, 336 So.2d 1133 27,32

(Fla. 1976)

Davis v. Georgia, 60 L.Ed.2d 339 9,11

(1976)

Davis v. State, 376 So.2d 1198 20

(Fla. 2d DCA 1979)

Edwarés v. Arizona, 101 S.Ct. 1880 5,18

(1981)

Elledge v. State, 346 So.2d 998, 1002 29,30,31

(1977)

Purman v. Georgia, 408 U.S. 238 26

(1972)

Garner v. Florida, 97 S.Ct. 1197 29,30

(1977)

Gerstein v. Pugh, 95 S.Ct. 854 13

(1975)

Gibson v. State, Case No. 48,698 29

(Pla. 1977)

Gregg v. Georgia, 428 U.S. 153 12,26

(1976)

Halliwell v. State, 323 So.2d 557 27,30,32

(Pla. 1975)

Hernandez v. Texas, 347 U.S. 425 12,

(1954)

Huckaby v. State, 343 So.2d 29 30

(Fla. 1977)

Johnson, et ux v. Reynolds, et al, 22

121 S. 793 (Pla. 1929)

Jones v. State, 322 So.2d 615 28

(Fla. 1976)

CASES CITED

Kampff v. State, 371 So2d 1007

(Fla. 1979)

King v. State, 390 So.2d 315

(Fla. 1980)

Kufrin v. State, 378 So.2d 1341

(Fla. 3rd DCA 1980)

Maggard v. State, (Fla. 1981)

Case No. 51,614

Magilla v. State, 383 So.2d 901

(Fla.1980)

Mardoff v. State, 196 S.625

(Fla. 1940)

Marion v. State, 287 So.2d 419

(Fla. 4th DCA 1974)

Mathis v. Alabama, 91 S.Ct. 2278

(1971)

Maxwell v. Bishop, 398 U.S. 262

(1970)

Messer v. State, 337 So.2d 137

(Fla. 1976)

Ailler v. State, 373 So.2d 882

(Fla. 1979)

Miranda v. Arizona, 86 S.Ct. 1602

(Fla. 1966)

Portee v. State, 253 So.2d 866

(Fla. 1971)

Proffitt v. Florida, 428 U.S. 242 96 S.Ct.

2965, 2968 (1976)

Provence v. State, 337 So.2d 783

(Fla 1976)

Roe v. Wade, 410 U.S. 113, 115

(1973)

Shriner v. State, 386 So.2d 525

(Fla. 1980)

Skinner v. Oklahoma, ex rel Williamson,

316 U.S. 535 (1942)

Smith v. Texas, 311 U.S. 128

(1940)

Songer v. State, 322 So.2d 481

(Fla 1975)

State v. Dickson, 283 So.2d 1, 10

(Pla. 1973)

State v. Prosser, 235 So.2d 740

(Pla. lst DCA 1970)

State v. Wright, 265 So.2d 361

(Pla. 1972)

Swann v. State, 322 So.2d 485

(Fla. 1975)

PAGE

CASES CITED

Taylor v. Louisiana, 419 U.S. 522

(1975)

Tedder v. State, 322 So.2d 908

(Fla. 1975)

Theil v. Southern Pacific Company,

328 U.S. 217 (1946)

Thompson v. State, 328 So.2d 1 (Fla. 1976)

Tibbs v. State, 337 So.2d 788 (Fla. 1976)

United States V. Hernandez, 574 F.2d 1362

(1978)

United States v. Massey, 550 F.2d 300

(1977)

United States v. Montos, 421 F.2d 215

(1970)

Wainwright v. Sykes, 528 F.2d 522

(1976)

Weaver v. State, 220 So.2d 53

(Fla. 2d DCA 1969)

Williams v. State, 110 So.2d 654

(Fla. 1959)

Williams v. State, 386 So.2d 538, 534

(Fla. 1980)

Witherspoon v. State of Illinois, 391 U.S. 510

520 N. 18 (1968)

Witt v. State, 342 So.2d 297

(Fla. 1977)

Woodson v. North Carolina, 96 S.Ct. 2978

(1976)

Woodson v. North Carolina, 428 U.S. 280

(1976)

Wright v. State, 348 So.2d 26

(Pla. lst DCA 1977)

RULES CITED

Plorida Rules of Criminal Procedure

Rule 3.1il1

Rule 3.131

Transition Rule 23(a)

STATUTES CITED

Florida Statutes

Section 90.404(2)

Section 913

Section 913.13

Section 921.141

Section 921.141(1)

Section 921.231

Chapter 79-336, Laws of Florida

PAGE

27,28

9,11,12

12,30

26,28,29

below and asserting herein deprivation of rights secured by the

Constitution

of the United States.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fourth Amendment to the Constitution of the United

States provides in relevant part:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches,

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

The Fifth Amendment to the Constitution of the United

States provides in relevant part:

"No person ... shall be compelled in any

criminal case to be a witness against him-

self, nor be deprived of life, liberty, or

property, without due process of law.;

The Sixth Amendment to the Constitution of the United

States provides in relevant part:

In ali criminal prosecutions, the accused shall

enjey the right to a speedy and public trial by

an impartial jury of the State and district where-

in the crime shall have been committed +++; to be

confror.ted with the witnesses against him; to have

compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel

for his defense.

The Eighth Amendment to the Constitution of the United

States provides:

Excessive bail shall not be required, nor excessive fines

imposed nor cruel and unusual punishments inflicted.

The Ninth Amendment tc “he Constitution of the United

States provides:

United States

The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others

retained by the people.

The Fourteenth Amendment._to the Constitution of the

provides in pertinent part:

{N] or shall any State deprive any person of life,

liberty or property without due process of law;

nor deny to any person within its jurisdiction

the equal protection of the laws.

Florida Statutes, Section 921.141 (1982 Supp.) is

set forth in Appendix F.

Plorida Statutes, Section 913.13 (1982 Supp.) is

set forth in Appendix G.

Rule 3.111, Florida Rules of Criminal Procedure is

set forth in Appendix H.

10. Transition Rule 23(a) is set forth in Appendix J.

11. Chapter 79-336, Laws of Florida is set forth in

Appendix kK.

12. Florida Statutes, Section 90.404(2) is set forth

in Appendix L.

STATEMENT OF THE CASE

A. THE FACTS |

This case concerns the homicide of Peggy Burnside in

Orlandc, Florida, on or about August 27, 1979. The victim, Peggy

Burnside died of gunshot wounds to the head after apparently being

struck on the forehead with a blunt instrument.

The Petitioner was arrested and taken into custody on

August 27, 1979, at Daytona Beach, Florida; he had seen news

reports of the homicide on TV and had turned himself into the

Daytona Beach police.

The Petitioner was given his Miranda warnings several

times by Daytona Beach Police Officers and then gave a statement

to Daytona Beach Police Officers Power and Sorenson. In that

statement, the Petitioner indicated that he had argued with the

victim that morning (August 27, 1979) and had struck her with a

blunt object. When questioned about shooting the victim, he

stated that he did not do it. The Petitioner stated that he did

not want to talk about it anymore, and Officer Power didn't pursue

it further.

Officer Power called the Orlando Police Department with

what information he had.

Orlando Police Officers Cunningham and O'Dell arrived

in Daytona Beach and initiated interrogation of the Petitioner.

After being given his Miranda warnings again, the Petitioner said

that he wanted a lawyer. Officer Cunningham responded that they

only wanted to talk tc him about what the detective from Daytona

Beach had talked to him about. The Petitioner was then questioned

and responded with incriminating statements allegedly indicating

that he had shot the victim twice. At one point during the inter-

view, Officer Cunningham attempted to tape record the Defendant's

Statement. The Petitioner again stated that he wanted an attorney

present. Officer Cunningham responded that this taping was just to

make a permanent record of what he had told them; the interrogation

continued.

Search warrants were obtained by Orlando Police Officer

Barrett mainly on the basis of the Defendant's statements in Daytona

Beach. Various pieces of evidence ( a .38 caliber revolver, holster,

several knives, a piece of pipe and others) were obtained from the

Petitioner's residence, which was also the location of the homicide.

The State's case in chief was purely circumstantial.

Various witnesses testified to the relationship the victim had with

the Petitioner, to the fact that the victim was seeking a divorce

from her husband, Milton Burnside, and to the victim's itinerary

for several days prior to the homicide. Also, the fact of an alleged

beating of the victim by the Petitioner some 23 days prior to the

homicide was brought out. The itinerary of the Defendant for several

days prior to his arrest was testified to, as were the statements he

made to the various police officers after his arrest. Numerous vivid

and gruesome photographs of the victim were introduced by the State,

in addition to putting into evidence the physical objects obtained

by the search warrants.

The Petitioner testified in his own behalf, denying that

he had shot the victim.

The trial lasted for approximately ten days, at the conclu-

sion of which the jury returned a verdict of guilty to murder in the

first degree.

B. TRIAL PROCEEDINGS

Indictment was returned on September 14, 1979, charging

the Petitioner, RICHARD KING, with murder in the first degree of

Peggy Burnside (R. 2081).

Numerous pre-trial motions were filed and heard between

September 27, 1979 and time of trial on June 9, 1980.

Jury trial began on June 9, 1980 and lasted until June 19,

1980 (R. 1-1314), at which time the jury returned a verdict of

guilty as charged (R. 2574).

Penalty phase of the trial was conducted on June 30, 1980

(R. 1405-1568), at which time the jury returned an advisory recom-

mendation of death (R. 2589).

Sentence of death was imposed on July 2, 1980 (R. 2594),

at which time the trial court entered its findings (R. 2630).

Notice of Appeal was filed on July 8, 1980 (R. 2610).

C. THE APPEAL

On direct appeal to the Supreme Court of Florida, Peti-

tioner claimed that the trial court erred in finding him competent

to stand trial and thereby violated his Sixth and Fourteenth Amend-

ment rights. (Appellate Brief at 5-6). Petitioner also urged that

in excusing for cause jurors who stated they were opposed to the death

penalty, but who could sit and impartially decide the issue of guilt

or innocence, the trial court violated his right to trial by a jury

as guaranteed by the Sixth and Fourteenth Amendments. (Appellate

Brief at 7-11). Petitioner alleged that the trial court, contrary

to this Court's decision in Edwards v. Arizona, 101 S.Ct. 1880 (1981),

unconstitutionally admitted into evidence written and Oral statements

after Petitioner eneccised his right to counsel and his right to

remain siicnt. (Appellate Brief at 12-19). Petitioner also claimed

that the admission into evidence by the trial court of inflammatory

photographs violated his Sixth and Fourteenth Amendment rights by

denying him a fair trial by an impartial jury (Appellate Brief at

20-21). Petitioner claimed that the admission into evidence by the

trial court of testimony which had the sole effect to show the pro-

pensity toward violent acts or bad character violated his Sixth and

Fourteenth Amendment rights by denying him a fair trial by an impar-

tial jury (Appellate Brief at 22-24). Petitioner alleged that the

trial court unconstitutionally limited and restricted the right of

Petitioner to cross-examine key prosecution witnesses (Appellate

Brief at 25-27). petitioner also claimed that the trial court erred

in failing to grant his motions for Judgment of Acquittal, there

being no showing of a prima facie case on the issue of premeditation.

(Appellate Brief at 28-32). Petitioner urged that the trial court

erred in imposing the penalty of death upon him in that the Florida

Statute under which such penalty was imposed is unconstitutional.

(Appellate Brief at 33-36). Petitioner also claimed that the trial

Court's denial of a pre-sentence investigation report violated his

Eighth and Fourteenth Amendment rights by denying him due process of

law, equal protection under the law, effective assistance of counsel,

and the right to be free from cruel and unusual punishment (Appellate

Brief at 37-38). In addition, the trial court erred in its findings

of aggravating circumstances and therefore unconstitutionally applied

the death penalty. (Appellate Brief at 39-43).

The Supreme Court of Florida found none of these issues

had any merit and disposed of six issues summarily. King v. State,

436 So.2d 50 (Fla. 1983); Appendix A. Regarding the trial court's

admission into evidence of Petitioner's statements after his Miranda

rights were given, the Supreme Court recognized that the admissibility

of the statements presented a close question, but concluded that:

[T]he Appellant gave the statement to the Orlando

Police officers voluntarily, with full knowledge

of his rights to counsel, and with knowledge that,

by giving the statement under the circumstances, he

was waiving his right to counsel.

Id. at 54; Appendix A. The Supreme Court also stated that:

[E]ven had the trial court excluded these statements

the admissions appellant had made to the Daytona Beach

police, combined with the other evidence in the.case,

clearly established appellant's guilt. The trial

court's error, if any, was harmless....

Id. Appendix A.

The Supreme Court of Florida found one of the three

aggravating circumstances relied on by the trial court to be without

sufficient evidence to establish that this homicide was committed

in a cold and calculated manner. But the Court found that resentencing

was not required as two aggravating circumstances remained and no

mitigating circumstances were found.

Regarding the competency of the Petitioner, the Court

noted that three psychiatrists examined the Petitioner and found

him sane and competent to communicate, advise, and assist counsel.

In addressing the propriety of excusing jurors who stated that they

were opposed to the death penalty but could sit impartially on the

issue of guilty or innocence, the Court noted that this issue had

been previously resolved by Supreme Court of Florida in King v.

State, 390 So.2d 315 (1980), cert. denied, 450 U.S. 989, 101 S.Ct.

1529, 67 L.Ed.2d 825 (1981). The Court found no impropriety in

the trial judge's excusing the jurors in this case. The Court

found that neither the admission of the photograph of the victim

nor the asserted restriction on the cross-examination was reversible

error. The Court also found the evidence was clearly sufficient

to establish premeditation and Florida Statute 921.141 to be facially

constitutional and constitutional as applied in this case.

The Supreme Court of Florida affirmed the conviction and

sentence of death. The Supreme Court of Florida denied Mr. King's

petition for rehearing.

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER FAILURE TO FIND PETITIONER INCOMPETENT

TO STAND TRIAL VIOLATED THE SIXTH AND FOURTEENTH

AMENDMENTS.

The record is replete with instances in which the Peti-

tioner evidenced various indications of mental disorder; the Peti-

tioner refused to wear civilian clothes at the trial (R. 17, 18).

the Petitioner asserted that he is "black" (R. 210) (R. 1478), when

in fact he is Caucasian; the Appellant insisted on testifying at

the sentencing hearing and then asserted a Fifth Amendment privilege

(R. 1521-1523) and the Petitioner exhibited bizarre physical behavior

in front of the jury during the course of the trial (SR filed).

Further, the Court noted the Petitioner's "mental condition" and

denying Petitioner's Motion to Represent Himself (R. 19), Petitioner

counsel noted his observation of mental "deterioration" prior to the

trial (R. 26), and the testimony of Dr. Edmund Bartlett, Ph.D. in

Clinical psychology, indicated mental disorder (R. 1510-1512), and

that the Petitioner “was not quite as much in touch as I had ini-

tially believed” (R. 1516), (also see, R 2438-2441).

The cursory examination by Dr. Robert G. Kirkland on

June 10, 1980, stated that the Petitioner would not discuss the

case nor his background with him. Dr. Kirkland then made the con-

clusion that the Petitioner “is at presently legally SANE, and

mentally competent to stand trial” (R. 2535). The examination by

Dr. E. Michael Gutman on June 10, 1980, revealed the Petitioner to

be "legally SANE, and able to know right from wrong” (R. 2536). I

would submit that "sanity" and "knowing right from wrong” was not

the criteria at the time of this examination; rather, the Peti-

tioner must be able to possess "sufficient present ability to

consult with his lawyer with a reasonable degree of rational under-

standing” or he must be able to possess "rational as well as factual

understanding of the proceedings against him.” Chapter 79-336, Laws

of Florida, and Transition Rule 23(a).

The record indicates much difficulty in communication be-

tween the Petitioner and his attorney; dialogue in the Appellant's

Motion to Withdraw (R. 1391-1396), dialogue in Petitioner's Motion

to Represent Himself (R. 3-7), letter of June 10, 1980, from Dr.

Gutman to Judge Keating (R. 2536), request in Court by Petitioner

(R. 920-921) (R. 209-216), Petitioner's Statement in Court (R. 797),

and the observation of Petitioner's co-counsel, Glenn Klausman,

(SR filed}.

In that the Petitioner lacked the necessary ability to

communicate effectively with his counsel and could not aid in the

preparation and defense of his case, in that this ability is neces-

Sary under the criteria for competency to stand trial under Florida

Law existent at the time, in that Dr. Kirkland and Dr. Gutman applied

a different criteria to determine the competency to stand trial, and

in that there is substantial evidence of mental disorder of the

Petitioner, the Petitioner was denied due process and equal protec-

tion of the law under the Fourteenth Amendment to the United States

Constitution, and further, the Petitioner was deprived of effective

assistance of counsel in his defense under the Sixth and Fourteenth

Amendments to the United States Constitution. Accordingly, the Court

should grant certiorari to determine whether the failure to find

Petitioner incompetent to stand trial violated the Sixth and Four-

teenth Amendments.

Iz.

THE COURT SHOULD GRANT CERTIORARI BECAUSE THE

FLORIDA SUPREME COURT'S EXCLUSION OF PROSPECTIVE

JURORS WHO ARE OPPOSED TO THE DEATH PENALTY BUT

CAN SIT AND IMPARTIALLY DECIDE THE ISSUE OF GUILT

OR INNOCENCE IS UNCONSTITUTIONAL AND CONFLICTS

WITH THE SIXTH AND FOURTEENTH AMENDMENT REQUIRE-

MENTS FOR JURY SELECTION SET OUT IN DECISIONS

OF THIS COURT.

It is now well settled that a prospective juror in a

capital case may not be excused for cause as a result of his gen-

eral opposition to the death penalty. The decisions of this Court

have made it clear that a juror may not be excused for cause in such

a case because of his views on the death penalty unless those beliefs

would interfere with his ability to follow the law applicable to the

case. Witherspoon v. Illinois, 391 U.S. 510 (1968), Boulden v. Holman,

394 U.S. 478 (1969) and Maxwell v. Bishop, 398 U.S. 262 (1970). If

only one venireman was improperly excused for cause because he voiced

general objections to the death penalty, the death sentence cannot

be carried out. Davis v. Georgia, 429 U.S. 122 (1976).

Petitioner respectfully submits that the voir dire pro-

cedure used in his trial fails to meet the minimum Constitutional

standard set by this Court for jury selection in capital cases.

The trial court excused for cause juror Kimble (R. 84,85)

at the request of the State (R. 69), juror Farmer (R. 84,85) at

the request of the State (R. 69), juror Grimes (R. 105,107) at the

request of the State (R. 104), and juror West (R. 105, 107) also

at the request of the State (R. 105). Jurors Farmer, Kimble, and

West each stated that they would be able to sit and decide impar-

tially the question of guilt or innocence but that they were opposed

to the imposition of the death penalty (R. 75, 76), (R. 62, 63, 74,

80, 81) and (R. 102) respectively. Juror Kimble stated that his

objection was for religious reasons (R. 62, 63,80, 81); further,

that he might be able to render a recommendation of the death

penalty after hearing the witnesses (R. 62, 63). Juror Grimes

was somewhat equivocal in her statement, but did believe she might

be able to sit and impartially decide the issues of guilt or inno-

cence even though she was opposed to the death penalty (R. 101).

The State used up all ten of its allotted peremptory

challenges to the venire, (R. 275, 276).

Section 913.13, Florida Statutes entitled "Jurors in

Capital Cases" provides:

A person who has beliefs which precludes him from

finding a defendant guilty of an offense punishable

by death shall not be qualified as a juror in a capi-

tal case.

Section 913.13, is the sole Statute specifically governing the

qualifications of jurors in capital cases. The Statute requires

impartiality of trial jurors in capital cases only as to deciding

the Appellant's guilt or innocence (Chapter 913 is entitled "Trial

Jury. Thus, the only relevant inquiry is whether a prospective

trial juror will be impartial as to Petitioner's guilt or innocence.

Inguiry regarding a juror's attitude toward the death penalty

becomes relevant only after the trial jury has returned a verdict

of guilty of Capital Murder. Following the return of such a ver-

dict, inquiry into the juror's attitude toward's the death penalty

would become appropriate. Jurors who could not follow the law

regarding a recommendation of death or life would not be qualified

to sit on the advisory sentence jury. Such jurors (or the entire

trial jury) would be subject to replacement by special jurors pur-

suant to Section 921.141(1), Florida Statutes:

If, through impossibility or inability, the trial

jury is unable to reconvene for a hearing on the

issue of penalty, having determined the guilt of

the defendant, the trial judge may summon a special

juror or jurors as provided in Chapter 913 to deter-

mine the issue of the imposition of the penalty.

See also Portee v. State, 253 So.2d 866 (Fla. 1971}, which prohibits

challenges for cause against jurors who have reservations about

capital punishment which would not effect their verdict in any

manner.

Additionally, it is submitted that if jurors are excluded

who state in advance of trial that they would not consider recommend-

ing the death penalty, such a jury would be less than neutral with

respect to guilt.

The question would then arise whether the State's

interest in submitting the penalty issue to a jury

capable of imposing capital punishment may be vin-

dicated at the expense of the defendant's interest

in a completely fair determination of guilt or

innocence - given the possibility of accomodating

both interests by means of a bifurcated trial,

using one jury to decide guilt and another to fix

punishment. That problem is not presented here,

however, and we intimate no view as to its proper

resolution. Witherspoon v. State of Illinois, 391

U.S. 510, 520 N. 18 (1968).

The exclusion of prospective jurors who might not vote for

the imposition of the death penalty is improper and unconstitutional

and inconsistent with the Fourteenth Amendment requirements for

capital-case jury selection as laid down in Witherspoon v. Illinois,

(supra); Maxwell v. Bishop, 398 U.S. 262 (1970); Boulden v. Holman,

394 U.S. 478 (1969); Mathis v. Alabama, 91 S.Ct. 2278 (1971); and

Davis v. Georgia, 50 L.Ed.2d 339 (1976).

These challenges for cause violate the Petitioner's right to

trial by a jury selected from a respective cross-section of the commu-

nity, as guaranteed by the Sixth and Fourteenth Amendments to the

Constitution of the United States. These challenges for cause violate

the Petitioner's Fourteenth Amendment rights to equal protection and

due process of the laws by denying him a trial by a jury selected from

a representive cross-section of the community, without furthering any

permissible State interest, since:

1. The jury does not finally impose sentence.

2. Its advisory sentencing verdict occurs at the

second state of the bifurcated trial.

3. This verdict is rendered by a majority vote.

This practice subjects the Petitioner to trial by a jury which

is not impartial, but in fact is biased in favor of the prosecution of

the issues of the Petitioner's guilt and of the degree of the crime of

which he is charged, in violation of the Fourteenth Amendment to the

Constitution of the United States.

This practice subjects the Petitioner -to cruel and unusual

punishment as prohibited by the Eighth and Fourteenth Amendments to

the Constitution of the United States because the jurors that will be

selected for trial will be incapable of performing the functions de-

manded by Woodson v. North Carolina, 428 U.S. 280 (1976) of "main-

taining a link between contemporary community values and the penal

system" (also see, Gregg v. Georgia, 428 U.S. 153, (1976).

Without question, persons opposed to the imposition of the

death penalty, comprise a fair cross-section of the community, Gregg

v. Georgia, (supra), exclusion of such jurors would be constitution-

ally impermissible. This would be in violation of the Petitioner's

Sixth Amendment right to a jury trial in that the requirement that a

petit jury be impartially drawn from a representative cross-section

of the community. Taylor v. Louisiana, 419 U.S. 522 (1975); Hernandez

v.- Texas, 347 U.S. 425 (1954); Theil v. Southern Pacific Company, 328

U.S. 217 (1946); Smith v. Texas, 311 U.S. 128 (1940).

Furthermore, it should be noted that in applying Witherspoon

v. Illinois, (supra), to the statements of juror Kimble (R 62,63) it

is impermissible to exclude juror Kimble for cause. As stated in

Witherspoon v. Illinois, (supra):

it can not be assumed that a juror who describes

himself as having ‘conscientious or religious scruples'

against the infliction of the death penalty or against

infliction ‘in a proper case' thereby affirms that he

could never vote in favor of it or that he would not

consider doing so in the case before him. Obviously

many jurors ‘could, not withstanding their conscientious

scruples (against capital punishment), return (a) verdict

of death and make their scruples subservient to their

duty as jurors'.....Thus a general....question as to the

presence of reservations or scruples is far from the

inguiry which separates those who would never vote for

the ultimate penalty from those who would reserve it for

the direst cases.....Unless a venireman states unambi-

gously that he would not automatically vote against

the imposition of capital punishment no matter what the

trial might reveal, it simply cannot be assumed that

that is his position.

Also see, King v. State, 390 So.2d 315 (Fla. 1980),

Witt v. State, 342 So.2d 297 (Fla. 1977).

It should be further noted that Petitioner's attorney

interposed objections at the appropriate time (R 69,82,83,105).

The procedure adoptedin this case and approved by the

Plorida Supreme Court below, is clearly at odds with the princi-

ples set forth in Witherspoon, supra. The exclusion for cause of

prospective jurors simply because of their views as to the imposi-

tion of the death penalty constitutes a plain violation of the Sixth

and Fourteenth Amendment.

III.

THE COURT SHOULD GRANT CERTIORARI BECAUSE THE

. ADMISSION OF THE WRITTEN AND ORAL STATEMENTS

OBTAINED FROM PETITIONER CONFLICTS WITH APPLI-

CABLE DECISIONS OF THIS COURT AND THIS COURT'S

INTERPRETATIONS OF THE FIFTH, SIXTH, NINTH AND

FOURTEENTH AMENDMENTS.

The written and oral statements were obtained from the

Petitioner in violation of his right to counsel and his privilege

against self-incrimination guaranteed by the Fifth, Sixth and

Ninth Amendments and the Due Process Clause of the Fourteenth

Amendment to the United States Constitution, Miranda v. Arizona,

86 S.Ct. 1602 (1966), as well as guaranteed by Rule 3.111 RcrP.

The. written and oral statements obtained from the Petitioner were

not freely and voluntarily given, in violation of his rights

guaranteed by the Due Process Clause of the Fourteenth Amendment

to the United States Constitution. Further, the written and oral

statements were obtained from the Petitioner in violation of his

right to be free from unreasonable searches and seizures guaranteed

by the Fourth and Fourteenth Amendments of the United States Consti-

tution. The written and oral statements were obtained from the

Petitioner in violation of his rights secured by Rule 3.131 RcrP,

and Gerstein v. Pugh, 95 S.Ct. 854 (1975).

The factual basis for this point of error is best covered

by a full review of the record as to the facts . In his testimony

at trial, Officer Cunningham indicated that Richard King was a suspect

of a homicide (R 758). Testimony at trial of Sergeant O'Dell indi-

cated that both he and Sergeant Cunningham had gone to Daytona Beach

to interview Richard King, who was in custody, and were there to talk

with him about this particular crime (R 785, 787, R 1322). In depo-

sition both Cunningham and O'Dell indicated that at the beginning of

the interview they told the Petitioner what they were there for,

Sergeant O'Dell indicating that the first thing they told the Peti-

tioner was that they were there to talk about "Peggy" (R 1872,1813,

1814). At a hearing on Motion to Suppress brought by the defense,

Officer Cunningham indicated to the defendant at the beginning of the

interview that they were there for what had happened that morning

(indicating the homicide in Or lando) (R 1354). It should be noted

here that the Defendant was in custody and was the focus of a homicide

investigation; further, that the Daytona Beach police had received in-

formation over their teletype from Orlando that this individual was

wanted in connection with a homicide. (R 1571).

Circumstances concerning the defendant at the time of the

interview, both with Daytona beach Police officers and with Orlando

Police Department officers, should also be noted. The initial in-

terview with Detective Power of Daytona Beach occurred in a jail room

and lasted some 45 to 55 minutes (R 1329), and occurred in an inter-

view room in the jail approximately 8 by 8 feet or 10 by 10 feet in

dimension (R 1333). There was approximately a ten to fifteen minute

break after this initial interview with Detective Power, at which

time another interview was initiated by Detective Power in his office.

This interview lasted approximately one to one and a half hours

(R 1330), and took place in a 6 by 7 or 7 by 8 foot room (R 1334).

During the second interview, Officer Sorenson of Daytona Beach was

also present, was in uniform, and was in possession of his firearm

(R 1330,1597). Petitioner was described as being "very nervous",

emotional and crying, especially about the victim's death and their

relationship with each other (R 1334). Officer Sorenson also noted

that the Petitioner stated that he had a seventh grade education and

appeared to him, (Officer Sorenson), to not be very well educated

(R 1597).

When the Interview was completed with the Daytona Beach

Officers, the Petitioner was taken back to the jail section, and was

then taken to an interview room in the jail section and questioned

by the Orlando Police Officers, Cunningham and O'Dell. The Appel-

lant had been advised of his Miranda rights by Officer Power, (R 1323)

and was then readvised of his Miranda rights by Officer Cunningham

(R 760-763, 787, 1871, 1813). It should be noted that at the conclu-

sion of the interview with Detective Power from Daytona Beach, the

Petitioner stated that he did not want to talk about it anymore.

Detective Power indicated that he did not pursue the issue at that

point, and that was when the interview concluded with Detective Power.

(R 729).

After the initial statements by the Orlando Police Officers

as to why they were there, and after having been advised of his

Miranda rights by those officer, Petitioner chose to exercise his

right to counsel. The testimony at trial of Officer Cunningham re-

vealed the following in response to questioning:

Q. After you advised the defendant of his

constitutional rights, what occurred, sir?

A. As I was Starting the interview, he said to

me, he, "I think I need an attorney.”

And at which time I responded, “we're only

here to talk to you about what the Detective

from Daytona Beach talked to you about.”

(R 763)

(It should be noted that at this time, Officer Cunningham had not

talked with Power as to these events, other than discussions over

the phone). The testimony Of Sergeant O'Dell at trial indicates

the following:

Q. And isn't it correct that at the beginning

of the interview, the defendant expressed

the desire to have an attorney present?

A. Yes, sir, he did. (R 792)

Depositions taken of Officer Cunningham indicate that the

Petitioner said he would like to talk with an attorney first,... anda

then at the time I responded, that they were only there to talk with

him about what the Daytona Beach Officer had talked to him about

(R 1872). Also, deposition revealed that when the Orlando Police

Officers walked into the room, and read the Petitioner his rights,

the Petitioner said, "I want to talk to an attorney first" (R 1887,

1889). At some point in the interview discussion was made as to

taping a statement. The Petitioner again stated that he wanted an

attorney, with the response from the Orlando officers that the only

reason that the tape was being made was to have a permanent record

of it, and at that point the Petitioner said that he didn't want to

talk about the incident (R1887). At deposition, Sergeant O'Dell in-

dicated that he recalls the Appellant also desiring an attorney, and

that Officer Cunningham's response was that they only wanted to talk

to him about what the Daytona Detective had talked to him about. (R1813).

At the hearing on the Motion to Suppress Confessions, Officer

Cunningham indicated a series of events. That right after the Peti-

tioner's rights were read to him, the Petitioner was told what the

officers were there for, the Petitioner then said, "I think I need an

attorney." The response was, that they were ther to talk to him about

what the Daytona Beach Detective had talked to him about. Officer

Cunningham indicates ihat this was befcre the incriminating admission

was made (R 1336, 1354). Also during this hearing, Officer Cunningham

indicated that before the tape segment of the interview, the Petitioner

stated again that he would like to have an attorney present, again this

was followed by the response that the tane waa onlv thera tn mata «

Derma: COrd \x« IF o this later tape recorded segment

of the interview with Officers Cunningham and 0'Dell, the Petitioner in

in answering questions stated:

Q. Could you tell us what happened?

a. I'd rather not discuss that; anything else?

Q. Is it alright if I ask the questions?

A. (No answer)

Q. Okay, let me ask....

A. Not related to that, not related to the argument, not

what happened. I'll answer any other questions.

Q. Excuse me?

A. I'll answer any other questions. (R 2319)

In addition, the Petitioner stated at least six more times during

this taping that he did not want to discuss it. (R 2319,2320).

(During the tape recorded section of interview with Officer Power

of Daytona Beach, the Petitioner expressed a desire not to discuss

it numerous times).

In spite of this, the Court denied defense's Motion to

Supress Confessions and Admissions and at trial the incriminating

Statements the Petitioner made, indeed the only statements indicating

confession for this homicide, came into evidence (R 766-787). This

testimony was admitted over Petitioner's time objection. (R 765,770,

787)

During the interview conducted by Officers Cunningham and

O'Dell, the following description indicates the Petitioner's mental

state at the time. The interview with the Orlando officers lasted

some 45 minutes during which the Petitioner had mist (tears) in his

eyes, his hands were trembling, and he was nervous (R 780,1347).

Sergeant O'Dell described the Petitioner as being extremely nervous,

and also remorseful (R 792). This interview was conducted at the

jail section in Daytona Beach, and the rooms can be described as being

somewhere between 8 by 9 feet or 10 by 12 feet in dimension (R 1880,

1813). Detective Cunningham described the Petitioner as being

nervous, very quiet, and had to be asked several times to speak up

(R 1347, 1892). The Petitioner was also described as ringing his hands

being nervous and upset (R 1347). Detective Cunningham also indica-

ted, as to Petitioner's condition, that he (The Petitioner) was under

a little stress with two investigators coming to talk to him

(R 1355).

"Custodial interrogation" within the meaning of the

Miranda decision means the questioning initiated by law enforce-

ment officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way;

United States v. Montos, 421 F.2d 215 (1970). United States v.

Massey, 550 F.2d 300 (1977), noted:

Where a request is made for an attorney prior to

any questioning, finding of a knowing and intelli-

gent waiver of the right to an attorney is impossible

if the request for an attorney is disregarded and

questioning proceeds, any statements taken there-

after cannot be the result of the waiver, but must

be presumed to be a product of compulsion, subtle or

otherwise....If an individual states that he wants

an attorney, interrogation must cease until an at-

torney is present; at that time the individual must

have an opportunity to confer with the attorney, and

to have him present during any subsequent questioning.

Further, it was stated in United States v. Hernandez,

574 F.2d 1362 (1978):

eecce erroneous admission of an incriminating

statement, obtained from the defendant after

failing to scrupously honor his invocation of

rights following a former Miranda warning, could

not be considered harmless beyond reasonable

doubt even though there appeared to be ample

basis other than the statements to sustain the

conviction, where statements carried extreme

probative weight in relation to crimes for which

Petitioner was convicted and may have represent-

ed overpowering, inescapeable evidence for the

jury.

In Wainwright v. Sykes, 528 F.2d 522, (1976), the Court

found that:

Any incriminating statement made by the Defendant

absent a knowing and intelligent waiver of his

right of counsel and his right not to incriminate

himself, must be excluded from the evidence at

trial.

Further:

A waiver of Miranda rights will not be presumed from

a silent record.

In Shriner v. State, 386 So.2d 525 (Fla. 1980):

The Supreme Court does not approve of any practice

by which suspect's express desire to remain silent

as to some specific activity is aborted by subter-

fuge of questioning which is designed or intended

to indirectly gain information about those matters

which he has indicated he wishes not to discuss...

If law enforcement officers fail to give specified

Miranda guidelines during interrogation, statements

thus derived may be suppressed, even though other-

wise wholly voluntary.

In State v. Prosser, 235 So.2d 740 (Fla. lst DCA 1970), the

Court noted that it was a violation of a defendant's Miranda rights

for the State to elicit and use a confession subsequent to the

—————— ee _ —— ——— _ —

defendant desiring an attorney. In that case the defendant was

asked, "Do you want a lawyer?" Response was, "I probably need one".

This response was made Several times, after which the defendant then

made incriminating statements. The trial court correctly suppresssed

the statements.

The controlling case concerning the above point of error is

that of Edwards v. Arizona, 101 S.Ct. 1880 (1981). In that case, this

Court indicated that State Court would be in error if they applied a

"standard for determining waiver of right to counsel by focusing on

the voluntariness of the confession, rather than on whether the de-

fendant understood his right to counsel and intelligently and know-

ingly relinquished it." Further, this Court found that "where a

defendant had envoked his right to have counsel present during cus-

todial interrogation, valid waiver of that right could not be esta-

blished by showing only that he responded to police-initiated in-

terrogation after being again advised of his rights; thus, use of

defendant's confession against him at his trial violated his rights

under the Fifth and Fourteenth Amendments to have counsel present

during custodial interregation. Once an accused has expressed his

desire to deal with Police only through counsel, he is not to be

subjected to further interrogation until counsel has been made avail-

able to him unless accused himself initiates further communication

with police."

Th? record clearly reveals that the Police officers were

there on a self-serving mission. They did not need to Speak to the

Petitioner to find out what Petitioner had told Detective Power. All

they had to do was talk to Power himself for that information. No,

their only purpose in mentioning this was to use it as a subterfuge to

get Petitioner to start talking.

Their was nothing “voluntary” about Petitioner's actions

or conversation. He was in custody, had exercised his rights to

silence and to have an attorney numerous times, only to be told by

the Orlando Police officers that they only wanted to talk about his

conversation with Detective Power and the fact that they needed to

make a tape recording ("just for a permanent record"). Petitioner

was rebuffed each time he asserted his rights and was interrogated

by the Orlando Police officers for a lengthy period of time.

It is patently clear when reviewing the record that the

Orlando Police officers went into the room at the Daytona Beach

I ee

Police Station for the sole intent of furthering their investigation

into a homicide in which Petitioner was the prime suspect. It is

also clear that their officers ignored or turned aside Petitioner's

requests to have his rights.,observed. And finally, it is evident

that there was no voluntary "statement" given. For upwards of an hour

the Orlando police officers questioned Petitioner (going far beyond

the scope of a statement they originally made about Petitioner's

conversation with Detective Power). Such actions by the police are

unexcusable and according, the Court should grant certiorari to bring

this case in line with the controlling case of Edwards, (supra).

ZVe

THE COURT SHOULD GRANT CERTIORARI BECAUSE THE

ADMISSION OF CERTAIN CONFLICTS WITH APPLICABLE

DECISIONS OF THIS COURT REGARDING THE SIXTH

AND FOURTEENTH AMENDMENTS AND THEIR REQUIRE-

MENTS FOR A FAIR TRIAL BY AN IMPARTIAL JURY.

THE ADMISSION INTO EVIDENCE OF INFLAMATORY

PHOTOGRAPHS NOT RELEVANT TO ANY ISSUES OF THE

CASE VIOLATES THE RIGHT TO A FAIR TRIAL BY AN

IMPARTIAL JURY AS GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS.

The state moved to“introduce an item marked State's "Q"

for identification during the testimony of Dr. Kessler, Medical

Examiner (R 376-382) and the trial court received it into evidence

as State's Number "10" (R 386). Counsel for the Petitioner object-

ed (R 376,377,382-385).

State's Number "10" depicts a frontal view of the victim

after she had been rolled over from the position in which she was

found. There was no relevance in admitting this photograph into

evidence; the purpose could only have been to inflame the passions

and icrease the prejudice of the jury against the Petitioner. In

Mardoff v. State, 196 S. 625 (Fla. 1940), the Court noted the facts

in that case were that the photographs which were somewhat gory of

the murder victim, had been taken before anyone had touched the body.

There evidently was another photograph taken in which the body had

been slightly moved but this was to show the weapon which caused

the death and said weapon had been left in the body of the victim.

The Court has also noted in Swann v. State, 322 So.2d 485 (Fla.

1975), that gruesome and gory photographs may be admitted if they

properly depict factual conditions relating to a crime, and

18a

further, they should be admitted if they are relevant in aiding the

court and jury in finding the truth. But the court also notes that

photographs serving only to create passion should be rejected. In

State v. Wright, 265 So.2d 361 (Fla. 1972), the Court noted that

allegedly gruesome and inflamatory photographs, each of which de-

picted a wound or wounds on the body of a murder victim not depicted

by the other pictures, were relevant and admissable. This court also

noted that inflammatory photos are admissable into evidence if they

are relevant to prove any issue required to be proven in the case.

The testimony of Dr. Kessler (R 368-374) (R 398-402), and

State's Exhibits Number "11", "12°, "18", "19" and "20" adequately

describe and depict the wounds to the victim in issue to this case, ?

specifically any wounds to the frontal area of the victim and/or the

frontal area of the victim's face.

In that this photograph, State's Exhibit Number "10", was

not relevant to any of the issues to be prove@m in this case, the court

erred in admitting this photograph into evidence.

By inflamming the passions of the jury, and by causing pre-

judice to be directed toward the Petitioner, the Petitioner was denied

his right to a fair trial by an impartial jury as guaranteed by the

Sixth and Fourteenth Amendments to the United States Constitution.

B. THE ADMISSION INTO EVIDENCE OF TESTIMONY WHICH HAD

THE SOLE EFFECT TO SHOW A PROPENSITY TOWARD VIOLENT

ACTS OR BAD CHARACTER VIOLATES THE RIGHT TO A FAIR TRIAL

BY AN IMPARTIAL JURY AS GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS.

Counsel for the Petitioner moved to exclude (R527) testimony

of Mae Guantt (R 539-544), and objected when she did so testify

(R539,540), concerning the alleged beating of the victim by the

Petitioner some twenty-three days prior to the homicide issue.

Basis for this exclusion was that it was too remote in time to the

incident for which the Petitioner was on trial, Barwicks v. State,

82 So.2d 356 (Fla. 1955), and that it only could be constructed to

show bad character of or propensity toward violent acts by the

Petitioner, Williams v. State, 110 So.2d 654 (Pla. 1959), Florida

Evidence Code 90.404(2).

The State relied on using this testimony to show premedi-

tation on the part of the Petitioner (R 530), in that a showing of

prior hostility or difficulty would infer premeditation (R 531). In

order to use prior hostility or difficulty to infer premeditation,

there must be shown that there was also an absence of provocation.

No where in the record is this absence of provocation reflected.

The prosecution stated (R 539) that this testimony went

"beyond the Williams Rule", however, absent a showing of no provo-

cation to allow prior hostility or difficulty to infer premedita-

tion, the only purpose this testimony could serve would fall under

the Williams Rule. In that none of the admissible areas (identity,

etc.) under the rule, Evidence Code 90.404(2), were relevant to the

issues at trial, the sole effect of the testimony was to show pro-

pensity toward violent acts or bad character. In Davis v. State,

376 So.2d 1198 (Fla. 2d DCA 1979), that court found that even where

identity is the material issue, such testimony of a collateral

crime is not admiss ible unless there is more than a mere similarity

between two crimes, and that there must be something unique about

the perpetrators themselves or their modus operandi before the tes-

timony can be received into evidence. In the case at hand, there

is insufficient similarity between an alleged beating and the

causing of a homicide by gunshot. In Marion v. State, 287 So.2d

419 (Fla. 4th DCA 1974) the Court stated:

We deemed the underlined words to be the ess ntial

determinative standard, i.e. relevant, that is to

Say, "to prove a fact and issue in the case before

the Court." If there is not fact "in issue” there

is no relevancy and the collateral evidence should

not be admitted.

The aliedged prior conduct of the Petitioner was, in

addition to the above-stated grounds, too remote in time for the

Court to allow the jury to consider it. In Barwicks v. State,

(supra), the trial court properly excluded the evidence of a

violent incident some two or three weeks prior to the occurence

of the homicide being tried.

The Court thereupon refused to allow the testi-

mony “for the reason that it was too remote and

they lived together ever since the time of the

first encounter"....The trial judge properly ex-

cluded the testimony for the reason that it was

too remote to have any reasonable materiality to

the subject of creating in the Appelant's mind,

as he contended, "the presence of eminent danger

to himself at the hands of the deceased" at the

time of the homicide. Remoteness is established

not only by the passage of time but also by the

admitted intervening fact that the Appellant and

the deceased resided together continuously between

the time of the prior altercation and the time of

the homicide. Obviously, the prior altercation

could not have created in the mind of the Appellant

any concern as to his own safety while in the com-

pany of the deceased.

Here, in Barwicks v. State, (supra), the Appellant would

have benefited from the testimony of the prior incident, not the

State; furthermore, the Court noted that intervening factors had

also occurred - the Appellant and the deceased had continued in

their relationship after the first incident. This is similar to

the factual situation in the case at hand; the Petitioner and the

deceased also continued to see each other in their relationship

(R 1680, 1685) (R 684, 686) after the alleged beating incident.

In-that the Florida Supreme Court allowed the testimony

to come into evidence to be considered by the jury, the Petitioner

was denied his right to a fair trial under the Sixth and Four-

teenth Amendments to the United States Constitution.

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE LIMITING AND RESTRICTING PETITIONER'S

CROSS-EXAMINATION OF KEY PROSECUTION WITNESSES

VIOLATES THE RIGHT OF THE ACCUSED TO BE CONFRONT-

ED BY HIS ACCUSERS AND CONFLICTS WITH THE SIXTH AND

FOURTEENTH AMENDMENTS REQUIREMENTS FOR CROSS-

EXAMINATION AS SET OUT IN DECISIONS OF THIS COURT.

The trial court improperly granted State's Motion in

Limine (R 594), over objection of Petitioner's counsel (R 586-

593), excluding Petitioner's inguiry into Milton Bernside, hus-

band of the victim in this case, exercising the Fifth Amendment

privilege of the right to remain-silent at his deposition taken

on December 10, 1979, and additionally the Court excluded inquiry

into Milton Bernside refusing to talk to the police on August 27,

1979. In that Mr. Bernside and the victim had been experiencing

marital difficulties (R 561,605,608,640) at the time of and imme-

diately prior to the homicide, he was a highly likely alternative

Suspect in the case. Petitioner's counsel proferred Mr. Bernside's

testimony in these areas (R 647-652) and obtained admission by the

witness Bernside during the profer that he exercised the Fifth

Amendment priviledge on December 10, 1979 at the deposition (R 648)

and again, that he, on August 27, 1979, declined at the scene to

answer Police questions regarding the homicide.

Petitioner's cross-examination of Mae Gauntt was restricted

when she was questioned on whether or not certain bullet fragments

had been moved or were in their original position, at the scene of

the homicide (R 882). This fol lowed questioning by the State con-

cerning paths that the bullets may have taken, and the location,

at the homicide scene, or certain bullet holes (R 875-880}

The Court has found previously in Johnson, et ux v.

Reynolds, et al, 121 S. 793 (Pla. 1929), that:

In the cross-examination of a witness, great latitude

is allowed that it may be shown what the witness

Opportunity for observation were and his disposition

to speak truthfully and the ability to speak accurately

-++-But whenever counsel is within his rights and is

seeking by the examination of a witness in cross to

bring a helpful light upon the subject of the inquiry,

it is harmful error to deny him the right. Under

certain circumstances the limits to which a cross-

examination may extend may not well be defined.

The Court has also noted in Coco v. State, 62 So.2d 982

(Fla. 1953), that:

A fair and full cross-examination of the witness

upon a subject opened by direct examination is an

absolute right not a privilege...especially ina

criminal case wherein the defendant is Charged with

murder in the first degree.

It should be noted that this Court found that:

The right of cross-examination has its roots in

the constitutional guarantee that an accused shall

have the right to be confronted by his accusers.

And further, the Court noted that:

Cross €xamination is not confined to the identical

details testified to in chief but extends to the

entire subject matter of such testimony and all

matters that may modify, supplement, contradict,

rebute, or make clear the facts testified to in

chief by a witness on cross-examination.

The exposure of a witness’ motivation in testifying is a proper

function of the Constitutionally protected right of cross-exami-

nation. Biased or prejudiced of a witness has an important

bearing on his credibility and tending to show such bias is re-

levant. Any evidence which tends to establish that a witness is

appearing for the State for any reason other than merely to tell

the truth should not be kept from the jury. This sentiment is

taken directly from the case of Kufrin v. State, 378 So.2d 1341

(Fla. 3rd DCA 1980). Similarly Blair v. State, 371 So.2d 224

(Fla. 2d DCA 1979) indicates that a defendant should be afforded

a wide latitude to demonstrate bias or a possible motive of a

witness, further, than when defendant seeks to cross-examine a

State witness regarding pending charges or matters arising out

of the same incident for which the defendant is on trial, the

principal is especially true.

By the trial court limiting and restricting the cross-

examination of key prosecution witnesses, the Petitioner has been

denied fundamental Constitutional rights that are found in the

Sixth and Fourteenth Amendments to the Constitution of the United

States, and further by Article I, Sections 9 and 16 (which speci-

fically states that the Petitioner has a right to confront at trial

adverse witnesses) of the Constitution of Florida. Accordingly,

the Court should grant certiorari to settle the conflict bewteen

the Florida Supreme Court and the applicable decisions of this

Court in its interpretations of the Sixth and Fourteenth Amendments.

VE «

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER FAILURE TO GRANT PETITIONER'S MOTION

FOR JUDGMENT OF ACQUITTAL WHEN NO PRIMA FACIE

CASE WAS ESTABLISHED AS TO THE ISSUE OF PRE-

MEDITATION VIOLATED THE SIXTH AND FOURTEENTH

AMENDMENTS.

The trial court denied Petitioner's Motion for Judgment of

Acquittal at the close of the State's case (R 1039,1056), and again

at the close of all of the evidence (R 1200).

When considering the testimony in evidence as a whole, when

viewing the case in its totality, the burden of proof required to

substantiate a case of premeditated murder was not met by the State.

If the State had substantiated the necessary proof for any lawful

homicide, it would be for the crime of murder in the second degree.

When viewing the facts of the entire case, the conclusion

most reasonable men would derive would be that this was a crime of

passion, a tregedy committed in the course of a blind and jealous

rage, without thinking, without time to truly reflect on what was

transpiring.

The only real substantial difference between murder in

the first degree and murder in the second degree, is that murder in

the first degree must be done with a premeditated design to effect

death, and this premeditated design must be proven beyond a reason-

able doubt. Boyett v. State, 68 So.2d 931 (Fla. 1950). Weaver v.

State, 220 So.2d 53 (Fla. 2d DCA 1969) stated that:

Although specific intent to kill may be inferred

from the circumstantial evidence, point of time

at which specific intent is inferentially formed

cannot be left to guess work or speculation.

In the Weaver case, (supra), the facts, not merely circunm-

stantial evidence, shows that the victim had exclaimed, "No! No!”

“7

prior to the gunshots being heard. As witnesses approached, they

saw the defendant pointing the weapon and saw the flash of the last

shot being fired. The witnesses then heard the gun click several

times after that last shot. The weapon had been fired six times

with there being three wounds in the victim's body, two of which

were in the back. In that case the Court found, in spite of

these facts, that the evidence was insufficient, as a matter of

law for a finding of premeditation.

It should be noted this Court reversed the decision and

remanded with directions to enter a judgment against the Appel-

lant of guilt of murder in the second degree and impose the ap-

propriate sentence.

The Primary fact in the case at issue here, is whether

or not there was any proof beyond and to the exclusion of every

reasonable doubt that the Petitioner acted with a premeditated

design. The facts in this case when viewed in an objective

manner, lends credence to the theory that the Petitioner acted

in the heat of passion as a result of what we basically charac-

terize as a “lover's quarrel."

Testimony revealed that the victim had some amount of

alcohol in her system (R 381,403) and that death happened quite

immediately after the shooting (R 404,411). Further it appears

that the area of the actual crime was not spread out, but was

rather isolated to one relatively small area of the apartment

since there were no indications of blood drippings anywhere else

in the house other than at the site of the bed (R 404,405).

There was no indication that the victim was being held against

her will, indeed the testimony of Mr. Boatwright indicated that

she was apparently afraid or was nervous and apprehensive about

the possibility of someone other than the Petitioner waiting for

her outside the apartment (R 275,280). There is additional evidence

that there may have been an argument between the Petitioner and

the victim, and that the victim may have been in possession of

a knife (R 2323) at the time this argument was taking place (R This

issue is covered in Point of Error III, concerning Petitioner's

statements, and State's Exhibit "6", "47" and "48"). Indications

are that the Petitioner showed great remorse when meeting with

police officers and that when the subject of the victim's death

arose, the Petitioner showed great compassion (R this issue also

covered in Point of Error III) and that Petitioner evidenced no

sincere attempt to effectively escape following his actions. The

fact of the packed suitcase and the purse located between the

victim's legs, could give rise to argument that the victim was

anticipating leaving the Petitioner's apx tment, causing emotional

distress to the Petitioner. It should be noted that the Petitioner

had allegedly beaten the victim on a prior occasion, and yet the

victim continued to maintain the relationship with Petitioner;

arguably, this would give rise to the theory that the altercation

in which the victim was killed Occurred spontaneously and with-

out any pre-planned actions on the part of the Petitioner. Not

all shots were fired from the revolver (R 1015), there being two

live loads in position for the next firing of the revolver. As

to the State's theary that the Petitioner struck the victim with

a piece of pipe, went to the closet and retrieved the revolver,

returned and shot the victim, there is no evidence anywhere in

the record to suggest that this was the case; in fact, it could

be equally argued that the Petitioner had both weapons in his

possession at the time of the incident of committing the act, the

shots were fired in rapid succession, and that there was no pro-

longed thought process or reflection by the Petitioner in commit-

ting the act.

In Wight v. State, 348 So.2d 26 (Fla. 1st DCA 1977),

the Court made the statenent:

-++-in an unbroken line of cases, the Courts of this

State have held that, under such conditions, the

evidence must be not only consistent with guilt but

inconsistent with innocence, or any reasonable hypo-

thesis thereof....If the facts and proof are equally

consistent with some other rational conclusion then

that of guilt....if the evidence leaves it indifferent,

which of several hypothesis’ is true, or merely es-

tablish some finite probability in favor of one hy-

pothesis rather than the other, such evidence cannot

amount to proof, however great the probability may be.

In that the Florida Supreme Court failed to grant the

Petitioner's Motions for Judgment of Acquittal based on their being

no prima facie case as to the issue of premeditation, which was

based solely on circumstantial evidence, the Petitioner was de-

nied due process and equal protection under the law and was denied

the right to a fair trial under the Sixth asd Pourteenth Amend-

ments to the Constitution of the United States.

VII.

THE COURT SKOULD GRANT CERTIORARI BECAUSE FLORIDA'S

DEATH PENALTY AS CONTAINED IN FLORIDA STATUTE 921.141

HAS BEEN APPLIED IN AN ARBITRARY AND INCONSISTENT

MANNER THUS RENDERING IT UNCONSTITUTIONAL AS IT CON-

FLICTS WITH APPLICABLE DECISIONS OF THIS COURT IN

ITS INTERPRETATIONS OF THE 'IFTH, EIGHTH AND FOUR-

TEENTH AMENDMENTS.

Florida's death penalty as contained in Florida Statute

921.141 is unconstitutional on its face, in that it violates due

process and equal protection clauses under the Fourteenth Amendment

of the Constitution of the United States. The State of Florida is

unable to justify the death penalty as the least restricted means

available to further it compelling goals, as is required under

Roe v. Wade, 410 U.S. 113,115 (1973), where a fundamental right,

such as life is involved. Studies indicate that the death penalty

is not an effective deterent to murder in that there are other less

offensive methods of punishment available which serve the same

"compelling" goals of the State. The imposition of the death penalty

on the Petitioner would be patently violative of the Constitution of

the United States and of the State of Florida and should be vacated.

Florida's death penalty statute, Section 921.141 is uncon-

stitutional as it has been applied, in that it violates the Fifth,

Eighth, and Fourteenth Amendments to the Constitution of the United

States. Although the Supreme Court of Florida and the Supreme Court

of the United States have upheld the facial constitutionality of

Florida's death penalty against attacks under the Cruel and Unusual

Punishment Clause, the death penalty has in fact been administered

and applied in a manner which is inconsistent with the applicable

decisions of this court. It is clear that the Equal Protection

Clause requires that harsh punishment be fairly and even-handedly

imposed. See, Skinner v. Oklahoma, ex rel Williamson, 316 U.S.

535 (1942). The "sentencing decisions patterns of juries (and

judges under the 1972 Florida Statute) have in fact exhibited a

pattern of arbitrary and completious sentencing like that found

unconstitutional in Furman v. Georgia, 408 U.S. 238 (1972). "Gregg

v. Georgia, 428 U.S. 153 (1976). Death sentences in Piocrida are

imposed irregularly, unpredictably, and whimsically in cases which

are not more deserving of capital punishment, under any rational

standard that considers the character of the offender and the offense,

than many other cases in which sentences of imprisonment are imposed.

Inconsistent and arbitrary jury attitudes and sentencing verdicts,

uneven and inconsistent proxitorial practices in seeking or not seek-

ing the death penalty, divergent sentencing policies of trial judges

and erratic appellant review by the Supreme Court of Florida often con-

tribute to produce irregular and freakish pattern of life-or-death

sentencing results. The facts and circumstances surrounding the al-

leged murder in this cause demonstrate that the application of the

death penalty in this cause, could be based only upon arbitrary and

capricious desire to fulfill a revengeful motive.

This Court ruled in Coker v. Georgia, 433 U.S. 584, 53 L.Ed

2d 982, 989 (1977), that "a punishment is excessive and unconstitutional

if it....is grossly out of proportion to the severity of the crime.”

If the penalty of death is not ordinarily imposed in cases with a si-

milar or even more aggravated factual basis and the death penalty is

not ordinarily imposed for the type of homicide the Petitioner is

alleged to have committed, then the imposition of the death penalty

in this case is unconstitutional.

The Florida Supreme Court has stated that it would reduce

death sentences if it sees "nothing more shocking in the actual killing

than in a majority of cases reviewed by this Court” under the 1972

Legislation, Halliwell v. State, 323 So.2d 557 (Fla. 1975). Specifi-

cally, the Court has held that a killing is not "especially heinous,

atrocious, or cruel simply because it is unnecessary", Cooper v. State,

336 So.2d 1133 (Fla. 1976); that the “standard” of (this)....aggravat-

ing circumstances is whether the horror of the murder is "accompanied

by such additional acts as to set the crime apart from the norm,

"(supra) at 1141; and that such a standard is not met in a "crime in

which the victim is shot twice and dies instamtaneously and painlessly."

The Florida Supreme Court has reduced a number of death der

tences in cases considerable more aggravating than the Appellant's.

See e.g., Swann v. State, 322 So.2d 485 (Fla. 1975), wherein the

Appellant gave the victim, who was bound and gagged a “severe beating”,

and the victim could not survive the torture administered; Halliwell

v. State, (supra), wherein the Appellant beat the victim with an iron

bar and mutilated the body; Tedder v. State, 322 So.2d 908 (Fla. 1975)

wherein the Appellant shot the victim, and refused to allow anyone to

aid she as she lingeringly died; Jones v. State, 322 So.2d 615 (Fla.

1976), wherein the Apellant had been heavily drinking, raped the

victim and then stabbed her thirty eight times; Thompson v. State, 328

So.2d 1 (Fla. 1976), wherein the Appellant committed armed robbery

and stabbed the victim three times while fleeing.

The execution of the Petitioner would violate the Sixth

and Eighth Amendments, and the due process and equal protection

clauses of the Fourteenth Amendment to the Constitution of the United

States. The imposition of the death penalty in this case violates

the history of the Florida Supreme Court decisions which are shown

in the cases mentioned before. Accordingly, this Court should grant

certiorari to render Florida's Death Penalty as contained in Florida

Statute 921.141 unconstitutional and ensure that the death penalty

is not applied contrary to the applicable decisions of this Court.

ViIItI.

THE COURT SHOULD GRANT CERTIORARI BECAUSE FLORIDA'S

POLICY OF ACCORDING SOME DEFENDANTS IN CAPITAL CASES

THE BENEFIT OF A PRE-SENTENCING INVESTIGATION AND DE-

PRIVING OTHERS OF THIS BENEFIT IS CONSTITUTIONALLY

INTOLERABLE AND DENIES PETITIONER HIS RIGHTS AS GUA-

RANTEED UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS

AS DETERMINED BY THIS COURT IN APPLICABLE DECISIONS.

The Supreme Court of Florida, while not specifically re-

quiring pre-sentence investigation reports in death cases, has ap-

proved sentences based upon such investigations. See, e.g., Tedder

v. State, (supra); Songer v. State, 322 So.2d 481 (Fla. 1975).

Since the death penalty statute can only withstand scrutiny under

the Eighth and Fourteenth Amendments of the United States Constitu-

tion when death sentences are imposed in a non-arbitrary manner and

subject to proportionality review, it is constitutionally intolerable

to accord some defendants the benefit of pre-sentence investigation

and deprive others of this benefit. Denial of a pre-sentence inves-

tigation would deprive the Petitioner, an indigent, of his right to

due process of law, equal protection of the law, effective assistance

of counsel, and his right to be free from cruel and unusual punishment.

Proffitt v. Florida, 428 U.S. 424 S.Ct. 2965, 2968 (1976).

Pre-sentence investigations conducted by the Florida Pro-

bation and Parole Commission provide detailed background information

regarding the Appellant investigated, and, as such, are a source of

information critically relevant to non-statutory mitigating circum-

stances. Gibson v. State, Case No. 48, 698 (Fla. 1977), opinion

filed July 28, 1977 and Florida Statute Section 921.231 (1975).

The mitigating circumstances which the jury must consider in de-

termining the appropriate sentence for a defendant found guilty

of a capital offense are specifically not limited to those desig-

nated in Section 921.141(6), Florida Statutes (1976 Supp.).

Proffitt v. Florida, (supra); Elledge v. State, 346 So.2d 998, 1002

(1977).

Since it is correct for a trial judge to consider a pre-

sentence investigation in sentencing a defendant convicted of a

Capital Offense, the defense must also be accorded the opportunity

of presenting relevant information which an investigation might

disclose to the jury panel at an advisory sentence proceeding; evi-

dence relevant to a trial judge's sentence in a capital case is

necessarily relevant to the jury sentence recommendation and should

be presented to the jury at the advisory sentencing hearing.

Messer v. State, 337 So.2d 137 (Fla. 1976). Defense counsel must

therefore be accorded a reasonable opportunity to examine the pre-

sentence investigation prior to the advisory sentencing hearing.

Garner v. Florida, 97 S.Ct. 1197 (1977).

In that the trial court denied Petitioner's Motion to have

a pre-sentence investigation report compiled and since one was never,

in fact, compiled, the Petitioner was denied Constitutionally pro-

tected rights under the Eighth and Fourteenth Amendments to the

United States Constitution.

IX.

THE COURT SHOULD GRANT CERTIORARI BECAUSE THE

IMPOSITION OF THE DEATH PENALTY ON PETITIONER

IS UNCONSTITUTIONAL AS THE AGGRAVATING CIRCUM-

STANCES IN THE CAPITAL SENTENCING WERE NOT

WEIGHED IN AN EVEN HAND AS REQUIRED BY APPLI-

CABLE DECISIONS OF THIS COURT REGARDING THE

EIGHTH AND FOURTH AMENDMENTS.

The trial court made findings of three aggravating circun-

stances and no mitigating circumstances (R 2629, 2630) under F.S.

921.141(3):

overwhelming evidence indicated that the Petitioner was under such

influence (R. 102-110, and argument noted in Point of Error I).

The evidence also indicates this to be a crime of passion between

individuals engaged in an ongoing relationship. Kampff v. State,

(supra), Halliwell v. State, (supra).

In Huckaby v. State, 343 So.2d 29 (Fla. 1977) and

Miller v. State, 373 So.2d 882 (Fla. 1979), the Court held that

mitigating factors, such as the fact that the Petitioner was under

the influence of extreme mental or emotional disturbance, can be

causely related to aggravating circumstances and thus negate them.

This mitigating circumstance should have been found by the trial

judge, and even further, that it acts to negate the cold, cal-

culated or premeditated manner of the hom cide.

"In determining the appropriate sentence, there should

be no mere accounting process of totalling the aggravating cir-

cumstances and the mitigating circumstances, but rather there should

be an exercise of reasonable judgment as to what the factual situa-

tions require the imposition of death and which Situations can be

Satisfied by life imprisonment in view of the totality of the cir-

cumstances," State v. Dickson, 283 So.?d 1, 10 (Fla. 1973). The

importance of this principal is that the Florida Statute involves a

"weighing" process and thus regardless of the aggravating factars they

still must be weighed and a life sentence could be appropriate, even

in the absence of mitigating evidence. Elledge v. State, (supra).

"The law does not require that death be imposed in every

Situation in which a particular set of facts occur. Certain factual

Situations may warrant the death penalty under the law, but this does

not present a sentence of life imprisonment." Alfred v. State, 322

So.2d 533, 540 (Fla. 1975).

"The State must administer its capital sentencing with an

even hand." Garner y_ Florida, 97 S.Ct. 1197 (1977). "Central to

the Eighth Amendment is a determination of contemporary standards

regarding infliction of punishment.....the death penalty must be

applied consistently with the Eighth and Fourtheenth Amendments require-

ment that the State's power to punish be exercised within limits of

civilized standards." Woodson v. North Carolina, 96 S.Ct. 2978 (1976).

1. The Petitioner had been previously convicted of

@ violent felony (by striking his common law wife

in the head three times with an ax).

2. The capital felony invo.:ved herein was especially

heinous, atrocious, or cruel (by striking the

victim with a steel bar, not rendering her uncon-

cious, the Petitioner then going into another room

to secure a gun, returning and shooting the victim

twice.

3. The capital felony was committed in a cold, calcula-

ted and premeditated manner without pretext to legal

or moral justification (by the above-stated reasons

and there being no evidence that the victim was

threatening the Petitioner).

The trial court relied on testimony from the sentencing

hearing as to the nature of the prior violent felony. The State

went into detail beyond the necessary showing (that the Petitioner

did, in fact, have a prior violent felony conviction) of prior

violent felony, to-wit:

",..axed her or struck her in the head three times

with an ax causing her death." (R. 1539)

"Defendant had committed a prior homocide, not

just criminal violence, but homicide in a very

deadly manner, using an ax three times." (R. 1546)

The reiteration of a prior allegedly gruesome ax murder

cannot have had but an extremely prejudicial effect on the judge and

the jury.

The State went even so far as to announce in closing

argument during the sentencing hearing:

"...the homicide in a very deadly manner, using

an ax three times. And, the fact that the defendant

had performed acts of violence prior to even this

murder on Peggy Burnside.”

"Three weeks prior had beaten her up in his apart-

ment, knocked her unconscious, held her against

her will, struck her twice with a pipe and shot her

in the head." (R. 1546)

Here again, the State attempted to, and apparently succeeded in,

inflaming the passions of the jury. The reference to prior acts

of violence is in error. Petitioner was never charged, much less

convicted in the incident in early August of 1979; to use this

would be to unduly prejudice the jury and would be error. Provence

v. State, 337 So.2d 783 (Fla. 1976), Elledge v. State, (supra) and

argument presented in Point of Error V, as to the Williams Rule

violation.

The trial court erred in finding that the Petitioner's

acts were especially heinous, atrocious, or cruel. There is no

substantial evidence that the victim was not unconscious when the

fatal shots were fired, or that this was anything more than a

series of incidents al] committed in the heat of passion. To make

such finding, there theoretically should be the showing of a killing

beyond the norm, torture, enjoyment of suffering, etc. Instantaneous

death from a gunshot would does not qualify. Cooper v. State,

335 So.2d 1133, 1141 (Fla. 1976), Kampff v. State, 371 So.2d 1007

(Fla. 1979), Antone v. State, 382 So.2d 1205 (Fla. 1979, Maggard v.

State, (Fla 1981), Case No. 51,614, opinion filed May 7, 1981,

Williams v. State, 386 So.2d 538, 534 (Fla. 1980).

The trial judge erred in finding both an especially

heinous, atrocious, or cruel aggravating circumstances in addition

to finding a killing by a cold, calculated and premeditated design.

In Magilla v.State, 382 So.2d 901 (Fla. 1980), the Court rules that

"a cold, calculated design to kill constitutes an especially heinous

atrocious or cruel murder." When this is taken into account, along

with the fact that the indictment and verdict in this case at hand

already renders the first degree murder premeditated, there is a

doubling of aggravating circumstances. Provence v. State, (supra).

In addition, the facts do not justify a finding of an especially

heinous, atrocious or cruel circumstances in that this homicide

constituted "nothing more shocking in the actually killing than in

a majority of murder cases." Halliwell v. State, (supra).

The trial court erred in finding that the homicide was

committed in a cold, calculated and premeditated manner due to the

above-noted reasons and those raised in Point of Error VII concerning

the lack of proof or premeditation beyond a reasonable doubt. In

addition, this newest of aggravating circumstances is impermissably

vague and overbroad under the United States Constitution.

Finally, the trial court erred in failing to find in

mitigation that the Petitioner was, at the time the hom cide occurred,

under the influence of extreme mental or emotional disturbance.

The overwhelming evidence indicated that the Petitioner was under

such influence of extreme mental or emotional disturbance. The

In that the trial court findings as to aggravating and

mitigating circumstances are in error, the requirements of due

: process and equal protection under the Fourteenth Amendment to

the Constitution of the United States, dictate that the death

sentence imposed upon the Petitioner be vacated.

Considering the vast number of cases with similar or more

aggravated fact situations in which the defendant has been spared

execution, this Court should vacate the death sentence imposed

on the Petitioner.

In view of the principal of equal protection under the

law, indeed, equal application of the law, the penalty of death

is not an appropriate remedy in the Petitioner's case.

CONCLUSION

The judgment entered against RICHARD KING must be reversed

and remanded for new trial; in the alternative, the sentence of

death imposed upon RICHARD KING must be vacated.

Respectfully vr ae A

/ , “—

‘U/ U ; / rs

WARREN H. EDWARDS, “ESQUIRE

Suite 101, Bradshaw Building

65 North Orange Avenue

Orlando, Florida 32801

(305) 425-7676

Attorney for Petitioner

APPENDIX®A

50 Fla

out his practice and take the necessary

steps to protect his clients.

The respondent shal! pay the cost of these

proceedings in the amount of $975.95

It is so ordered

ALDERMAN, CJ., and OVERTON, Me-

DONALD, EHRLICH and SHAW, JJ,

cur.

con-

Richard KING, Appellant,

STATE of Florida, Appellee.

No. 59464.

Supreme Court of Florida.

July 21, 1933.

Rehearing Denied Sept 16, 1983.

Defendant was convicted in the Circuit

Court, Orange Court, Richard B. Keating,

J., of murder, and he appesied. The Su-

preme Court held that: (1) defendant's in-

criminating statements were properly ad-

mitted; (2) tria] court properly allowed tes-

timony that defendant had severely beaten

victim 23 days prior to the killing; and (3)

trial court properly imposed death penalty

upon defendant

Affirmed.

Adkins, J., concurred in conviction, but

concurred in result only in sentence.

1. Mental Health e432

Trial court properly found defendant

competent to stand trial.

2 Jury 108

.Trial court properly excused for cause

certain jurors who stated that they were

4% SOUTHERN REPORTER, 2d SERIES

opposed to death penalty but who could sit

impartially on issue of guilt or innocence

3. Criminal Law c=43%(5)

Trial court in murder prosecution did

not err in aimitting photographs of victims

4. Witnesses 2 265(1)

Trial court in murder prosecction did

not improjariy restrict defendant's cruss-

cxamination of the victim's hushand.

5. Homicide 232

Evidence in murder prosecution was

sufficient to establish premeditation

6. Homicide 251

Death penalty statute is both facially

constitutional and was constitutionally ap

plied to defendant in murder prosecution.

West's F.S.A. § 921.141.

7. Criminal Law 517.2(3)

Confession made by defendant to Day-

tona Beach palice was admissible in murder

prosecution, in that he was given his Miran-

da rights and he waived them.

& Criminal law @412.1(4)

Response by police officer to defend-

ant’s request for an atturney, that Le and

his fellow officer were there to ask him to

repeat what he had already tol! Daytona

Beach police officer, was a totally rcasona-

ble response under the circumstances and

was not intended to induce defendant to

further incriminate himself.

9. Criminal Law @412.2(5)

Defendant gave incriminating state

ment to Orlando police officers voluntarily,

with full knowledge of his right to counsel,

and with knowledge that, by giving state-

ment under the circumstances, he was waiv-

ing his right to counsel, and thus statement

was admissible in murder prosecution.

10. Criminal Law 3%

Homicide 159, 162

Trial court in murder prosecution prop-

erly allowed testimony that defendant had

severely beaten the victim 23 days prior to

the killing, despite contention that circum-

stances of bealing were not similar to those

of the killing and that beating was too

KING v. STATE

SO ee.

ee) |

Cite as 435 $0.24 50 (Fin. 1963)

remote in time to be relevant to case, in

that testimony was not remote in time, was

proper evidence of premeditation, and was

proper for identification since one of the

theories of defense was to imply that the

victim's present husband could have been

the killer.

11. Criminal Law <= 369.2(4)

Testimony concerning the issue of vio

lent felony of which defendant was previ-

ously convicted, the axe slaying of his com-

mon-law wife, was properly admitted into

evidence and projerly relied on by both

jury and trial judge in convicting defendant

of murder and sentencing him to death

12. Homicide 34

In sentencing defendant convicted of

murder to death, trial court properly relied

On aggravating circumstance that killing

was heinous, atrocious, and cruel.

13. Homicide e354

Although premeditation was proven,

evidence was not sufficient to establish that

homicide was committed in a cold and cal-

culated manner, and thus this was not a

proper aggravating circumstance to rvly

upon in sentencing defencant convicted of

murder to death.

14. Homicide 354

Total record in case, including psychiat-

ric reports, justified finding of trial court

that mitigating circumstance of extreme

mental or emotional disturbance did not

have to be considered as a factor in impos-

ing sentence in murder prosecution.

15. Homicide 354

Finding that one aggravating circum-

stance was improper in imposing death sen-

lence upon defendant convicted of murder

did not require a resentencing where there

remained two aggravating and no mitigat-

ing circumstances.

Warren H. Edwards, Orlando, for appel-

lant.

Jim Smith, Atty. Gen., and Mark C. Men-

ser, Asst. Atty. Gen., Daytona: Beach, for

appellee. is

PER CURIAM.

This is an appeal by the appellant, Rich-

ard King, from his conviction of first-de-

gree murder and the sentence of death im-

posed on him by the trial judge in accord-

ance with the jury's recommendation. We

have jurisdiction, article V, section Xb\1),

Florida Constitution, and affirm.

The record reflects the following facts.

On the morning of August 27, 1979, the

victim, Peggy Burnside, was murdered in

the Orlando, Florida, apartment she shared

with appellant. She had heen struck on the

forehead with a blunt instrument and (hen

shot in the head. She died as a result of

the gunshot wourds. The appellant, while

in Daytona Beach, Florida, on the evening

of the crime, called the Daytona Beach po-

lice amd turncd himself in, stating that he

had wen news reports of the Burnside

hom.cide on television and believed the po

lice were looking for him. A patrolman

was dispatched to meet him.

Appellant, after recciving the appropriate

Miranda warnings, was interviewed by

Daytona Beach poiice officers, to whom he

gave @ statement. In that statement, ap

pellant indicated that he had argued with

the victim that morning and had struck her

in the head with a blunt object. The Day-

tona Beach police contacted the Orlando

police department and were advised that

the victim had not only been hit with »

blunt object but had also been shot in the

head. Upon learning that the victim had

been shot, the Daytona Beach police offi-

cers questioned appellant again. He was

advised that the victim had been shot and

was asked if he had shot her. Appellant

exclaimed, “How would you feel if you just

killed someone?” and began crying. He

then asked that the interview cease, and his

request was honore:(.

The Orlando police officers thereafter ar-

rived in Daytona Beach. They gave appel-

lant the appropriate Miranda warnings; he

told them he wanted a lawyer. One of the

Orlando police officers told him that they

only wanted to talk about what he had

52 Fla

already told the Daytona Beach police de-

tective Appellant responded with incrimi-

nating statements confirming what he had

told the Daytona Beach police He admit-

ted that he had shot the victiu twice. Sub

sequently, the officers attempted to record

the conversation, and apjxllant again re-

quested an attorney. When told that the

taping was to be used only as a permanent

record of the conversation, ajpellant contin-

ued speaking and made additional! incrimi-

nating statements.

The evidence at trial established that the

victim and the appellant shared a commu-

nal living arrangement and that the victim

was seeking a divorce from her husband.

A 38 caliber revolver and 2 piece of pipe

were fuund in apoellant’s apartment, intro-

duced into evidence, and properly identified

as the weapons used in this murder. Evi-

dence was also admitted to show that twen-

ty-three days before this incident, appellant

bad Leaten the victim to the point that she

became unconscious. Appellant testified in

his own behalf and denied that he had shot

the victim. Appellant, prior to trial, was

examined by three psychiatrists, each of

whom found him to be competent at the

time of the offense and competent to stand

tria).

After the jury returned « verdict of

guilty, the state, in the sentencing hearing,

introduced evidence that appellant had been

convicted of a prior violent felony, specifi-

cally, manslaug4ter, for killing his common-

law wife by striking her three times in the

head with an axe. Although appellant took

the stand in the sentencing hearing, he as-

serted a fifth amendment privilege and re-

fused to testify. The jury returned a ver-

dict recommending the imposition of the

death penaity. The trial judge refused a

request for a pre-sentence investigation re-

port and determined that the death penalty

was appropriate, finding the following

three aggravating circumstances:

A. That the Defendant was previously

convicted of a felony involving the

use of violence to the person in that

in 1969 in South Carolina he killed a

woman by striking her in the head

4% SOUTHERN REPORTER, 24 SERIES

three times with an axe and was

convicted of manslaughter for that

billing;

B. That the capital felony involved here-

in was expecially heinous, atrocious,

or cruel in that the victim was struck

forcefully in the face by the Defen!-

ant with a heavy steel bar, not ren-

dering the victim unconscious, after

which the Defendant went to another

room of the house involved and se

cured a pistol and returned to the

victim ano shot her in the face ard in

the back of the hecd with the pistol,

causing her death;

C. That the cupital felony involved here-

in was a homicide and was committed

in a cold, calculated and premeditat-

ed manner without any pretense of

moral or legal justification in that

after having struck the victim a gre-

vious [sic] blow in the face with a

heavy stce! bar, which did not render

the victim unconscious, the Defend-

ant went to another room of the

house invo!ved, secured s pistol from

its place of concealment, returned to

the victim and shot her with the pis

wl, once in the face and once in the

back of the head; that the said acts

of the Defendant were precipitated

by an argument with the victim;

that there is no evidence that the

victim, who was female and physical-

ly smaller than the Defendant, was

threatening the Defcndant in any

way at the time of his said acta

The trial judge found no mitigating cireum-

stances.

Trial Phase

Appellant asserts that his conviction

should be vacated upon eight grounds: (1)

the trial court erred in finding appellant

competent & stand trial; (2) the trial court

improperly excused for cause certain jurors

who stated that they were vpposed to the

‘death penalty but who could sit impartially

on the issue of guilt or innocence; (3) the

trial court improperly admitted appellant's

oral and written statements because they

——

——<——

KING v. STATE

—_——- —

Fla. 53

Cite as 436 S024 4 (Fla 1863)

were given after he had exercised his right

to counsel; (4) the tria! court improperly

admitted a photograph of the victim; .(5)

the tria] court erred in allowing the admis-

sion of testimony that the victim bad been

beaten by appellant twenty-three days prior

to the killing; (6) the trial court improperly

restricted the appellant's cruss<«xyaminatiorn

of the husband of the victim; (7) the evi-

dence was insufficient to establish premedi-

tation; and (8) section 92).141, Florida

Statutes (1979), is facially unconstitutional

or, if constitutional, was unconstitutionally

applied to the facts of this case.

(1-6) We find that none of these issues

has any merit and that six may be disposed

of summarily. With regard to the first

issue, the competency of the defendant, ap-

pellant in effect disagrees with the expert

testimony presented to the trial judge

Three psychiatrists examined the appeilant

nd found him sane and competent to com-

municate, advise, and assist counsel. Sce

Lane v. State, 388 So2d 1022, 1025 (Fla

1980). The second issue, the propriety of

excusing jururs who stated that they were

opjused to the death penalty but+hat they

could sit impartially on the issue of guilt or

innocence, has been previously resolved by

this Court in King v. State, 390 So.2d 315

(Fla.1980), cert denied, 450 U.S. 989, 101

S.Ct. 1529, 67 L.Ed.2d 825 (1981), and in

Witt v. State, 342 So2d 497 (Fla), cert

denied, 434 US. 935, 98 SCt 422, M4

L.Ed.2d 294 (1977). We find no impropriety

in the trial judge’s excusing the jurors in

this case. We also note that no objection

was raised by appellant at the time the

jurors were excused. We next find that

neither the admission of the photograph of

the victim nor the asserted restriction on

the cross-examindtion of the victim's hus-

band was reversible crror. Further, the

evidence was clearly sufficient to establish

premeditation, and section 921.141 is both

facially constitutional, as we have previous-

ly held, and has becn constitutionally ap

plied to the appellant in this case.

The issues pertaining to the confessions

of the appellant and to the prior violent

episude between appellant and the victim

require a more extensive discussion.

Confessions

[7] Apjcilant asserts that his confcs-

sions should be suppressed on the grounds

that they were obtained in violation of Mi-

randa v. Arizona, 34 US. 436, 8 S.Ct

1602, 16 L.F.d.&! 694 (1966), and Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct 1880, 68

L.E4.2d 378 (1981). It is important to rec-

ognize that appellant made two separate

confessions. The first was made to the

Daytona Beach police, to whom he turned

himself in and who knew nothing of the

incident at the time he was taken into cus

tody. In this first interview, appellant ad-

mitted hitting the victim in the head with a

blunt instrument, and, when asked by the

Daytona Beach police officers whether he

shot the victim, he broke down and cricd,

saying, “How would you fox! if you had just

killed someone?” This confession was clear-

ly admissible since appellant was given his

Miranda rychts and waived them. There is

no real assertion by appliant that this

statement should have been suppressed

The admissions and statements which

bring into issue the principles set forth in

Edwards v. Ani7ona are those appellant

gave to the Orlando police officers when

they came to Daytona Beach to talk to him

about this inciient. Ajppellant contends

that these statements were crroneously ad-

mitted into evidence because appellant

made them after asking for counsel. The

record is clear that the Orlando officers

properly gave appellant his Miranda warn-

ings. One officcr testified that, after he

gave appellant his constitutional rights, the

following exchange occurred ;

As I was starting the interview, he szid

to me, he, “I think I nced an attorney.”

And at which time I| responded, “We're

only here to talk to you about what the

detective from Daytona Bach talked to

you about.”

Appellant responded by giving a detailed

stateinent of what occurred between him

and the victim. The statement was sulse-

quently taped, reduced to writing, and ~

signed by appellant.

SA Pa

We must look at ali the circumstances

surrounding this second statement to deter-

mine its admissibility. The rule, as ex-

pressed by Justice White in Edwards,

states:

It is reasonably clear under our cuses that

waivers of counse! must not only be vol-

untary, but must also constitute a know-

ing and intelligent relinquishment or

abandonment of a known right or privi-

lege, a matter which depends in each case

“upon the particular facts and circum-

stances surrounding that case, including

the background, experience, and conduct

of the accused.” Johnson v. Zerbst, 304

US. 458, 464 [58 SCt 1019, 1023, a2

L.Ed. 1461) (1938). See Faretta v. Cali-

fornia, 422 U.S. 806, 835 [95 S.Ct. 2525,

241, 45 L.Ed2d 562] (1975); North

Carolina v. Butler, 441 U.S. 3€9, 374-875

{99 SCt 1755, 1757-1758, 60 LEd2d

256] (1979); Brewel v. Williams, 430 US.

387, 404 (97 S.Ct 1232, 1242 51 L.Ed 2d

424) (1977); Fare v. Michael C., 442 US.

707, 724-72 [99 SCt 2560, 2571, 61

L.Ed2d 197] (1979).

451 US. at 482, 101 S.Ct at 1883. (Empha-

sis added.) There is no “paternalistic rule

protecting a defendant from his intelligent

and voluntary decisions about his own crim-

inal case.” Michigan v. Mosely, 423 US. 9,

109, 9% S.Ct 321, 829, 46 LEd2d 313

(White, J., concurring in result). Whether

the appellant in this instance chose to con-

tinue to talk to police without counsel,

knew his rights, and knew that in giving a

Statement he was waiving the right to

counsel, are questions of fact to be deter-

mined in light of all the circumstances.

[8] The evidence in this case reflects

that appellant had been fully advised of his

rights om numerous occasions and had

signed three waiver forms, one for the Day-

tona Beach police and two for the Orlando

police; that he was familiar with the crimi-

nal process because he had previously bees

charged, tried, and convicted for a serious

felony; tbat he had turned himscif in and

had just previously admitted that he had

struck the victim in the head with a blunt

object and implied that he had killed the

victim. We believe that the response by

the officer to appellant's request for an

——t

436 SOUTHERN REPORTER, 2d SERIES

attorney, that he and his fellow officer

were there to ask him to repeat what he

had already told the Daytona Beach police

officer, was a totally reasonable response

“under the circumstances and was not in-

tended to induce appel’ant to further in-

criminate himself. See Edwards, 451 US.

477, 490, 101 S.Ct 1880, 1887, 68 L.Ed 2d

378 (Powell, J., concurring in result) (police

may legitimetely inquire whether a suspect

has changed his mind about speaking to

them). ;

[9] We conclude that appellant gave the

statement to the Orlando police officers vol-

untarily, with full knowledge of his rights

to counsel, and with knowledge that, by

giving the statement under the circum-

stances, he was waiving his right to counscl.

This was clearly not a situation such as that

in Edwards, where the defendant stated, “I

want an attorney before making a deal,”

and was subsequently advised that he had

to talk to the detectives.

We recognize that, given the various in-

terpretations of Edwards, the admissibility

of the statements appellant made to the

Orlando police officers presents a close

question. On the present record, however,

we find that even had the trial court ex-

cluded these statcments, the admissions ap-

pellant had made to the Daytona Beach

police, combined with the other evidence in

the case, clearly established sppellaot's

guilt. The trial court's error, if any, was ;

harmless under the princip'es set forth in

Harrington v. California, 395 U.S. 250, 89

S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Evidence that Appellant Had Previous/y

Assaulted the Victim

{10} Appellant contends the trial court

improperly allowed testimony that he had

severely beaten the victim twenty-three

days prior to the killing. Appellant asserts

that the circumstances of this beating were

not similar to those of the killing and that

the beating was too remote in time to be

relevant to the case. Consequently, he ar-

gues, this evidence was admitted in viola-

tion of Williams v. State, 110 So2d 654

(Pia.), cert. denied, 361 U.S. 847, 80 S.Ct

KING v. STATE

~_—— --

Pla. 55

Cite as 435 So.2d 50 (Fin. 1983)

102, 4 LEd2d 86 (1959), because it was

utilized only to show propensity and not to

prove an element essential to this offense.

We disagree. We Lelieve that the testimo

ny was not remote in time, was proper as

evidence of premeditation, and was proper

for identification since one of the theories

of appellant's defense was to imply that the

victim's present husband could have been

the killer. Under these circumstances, we

find the testimony admissible.

Sentencing Phase

(11,12) Appellant contends that the tri-

al court erred in finding three aggravating

circumstances and no mitigating circum-

stances. First, appellant contends that the

testimony concerning the nature of the vio-

lent felony of which he was previously con-

victed, the axe-siaying of his common-law

wife, was improperly admitted into evi-

dence and improperly relied on by both the

jury and the trial judge. We find this

contention incomprehensible. A judge and

jury, in imposing sentence,.must know the

nature of the offense in order to give prop

er weight to the violent felony conviction

We also disagree with the afsertion that the

killing in the instant case culminated a se

ries of incidents occurring in the heat of

passion, and, that, therefore, this killing

was not heinous, atrocious, or cruel.

[13] We do, however, question the find-

ing that this murder was committed in a

cold, calculated, and premeditated manner,

without any pretense of moral or legal jus-

tification, as we have now defined this ag-

gravating factor. The trial judge in this

case did not have the benefit of our recent

decisions in McCray v. State, 416 So.2d 804

(Pia.1982); Jent v. State, 408 So2d 10%

(Fla.1981), cert. denied, 457 U.S. 1111, 102

S.Ct. 2916, 73 LEd2d 1322 (1982); and

Combs v. State, 403 So.2d 418 (Fla.1981),

cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72

L.Ed.2d 862 (1982). Although premedita-

tion was proven, we do not think the evi-

dence was sufficient to establish that this

homicide was committed in a cold and cal-

culated manner.. As we have stated, this

“aggravating circumstance ordinarily ap-

plics in those murders which are character-

ized as executions or contract murders, al-

though that description is not intended to

he all-inclusive.” McCray, 416 So.2d at 807.

We conclude that this was not a proper

agyravating circumstance under the facts

of this case.

114] Appellant also argues that the miti-

galing circumstance of extreme mental or

emouonal disturbance should have been

considered by the trial judge because of

appellant's mental condition. He supports

this arguinent by citing his behavior at

trial: He refused to wear civilian clothes at

the trial, asserted that he was black when

in fact he is Caucasian, and insisted on

testifying at the sentenc.ng hearing, only to

assert a f:f{th amendment privilege. In ad-

dition, appellant coftends that this was a

crime of passion occurring between two in-

dividuals engaged in an on-going relation-

ship. We find that the total record in this

case, including the psychiatric reports, justi-

fies the finding of the trial judge that this

mitigating circumstance need not be con-

sidered 23 a factor in imposing sentence in

this case.

(15) Our finding that one aggravating

circumstance was improper does not require

a resentencing where there remain two ag-

gravating and no mitigating circumstances.

Enmund v. State, 399 So.2d 1362 (Pla 1921),

rev'd on other grounds, US. —--, 102

S.Ct. 2368, 73 L.Ed.24 1140 (1982); Har-

grave v. State, 366 So.2d 1 (Fla.1978), cert.

denied, 444 US. 919, 100 S.Ct 29, 62

L.Ed.2d 176 (1979). In affirming the impo

sition of the death penalty on appellant, we

note that the facts in this case are similar

to those in Harvard v. State, 414 So.2d 1032

(Fla.1982), cert. denied, —- US. —~, 10

S.Ct. 764, 74 L.Ed.2d 979 (1983), where we

also affirmed the death penalty. Appel-

lants in both cases killed women with whom

they had a relationship, and, in both cases,

appellants had previously been convicted of

similar violent offenses.

For the reasons expressed, we affirm the

conviction and sentence of death.

It is so ordered.

sly SE ream

56 Fla

ALDERMAN, CJ, and BOYD, OVER

TON, McDONALD and EHRLICH, JJ.,

concur.

ADKINS, J., concurs in the conviction,

but concurs in result only in the sentence.

Clyde FOSTER, Appellant,

STATE of Florida, Appellee.

No. 349.

Supreme Court of Florida.

July 21, 1983.

Rebearing Denied Sept 16, 1933.

Defendant appealed from a judgment

of the Circuit Court, Columbia County,

Samuel S. Smith, J., in which a sentence of

death was imposed for his conviction for

murder. The Supreme Court, 387 So2d

S44, reversed and remanded. On remand,

the Circuit Court, Columbia County, Royce

Aguer, J., again convicted the defendant

and imposed the death sentence. Appeal

was taken. The Supreme Court, Alderman,

CJ., beld that: (1) testimony of a State

witness from the first trial could be read to

the jury during the second trial, after the

death of the witness, where a conflict of

interest did not impair or affect the ade

quacy of the cross-examination of the wit-

ness; (2) the defendant failed to preserve

for review any claim of error regard'ng an

instruction on second-degree felony-mur-

der; (3) State did not prove beyond a rea-

sonable doubt that the defendant commit-

ted the murders to avoid lawful arrest or to

hinder law enforcement; and (4) remand

was necessary for reconsideration of the

remaining aggravating circumstance and

mitigating circumstances.

436 SOUTHERN REPORTER, 24 SERIES

Affirmed in part, vacated in part and

remanded for resentencing.

Boyd, J., concurred in part and dissent-

ed in part with an opinion.

Adkins, J., concurred in the conviction,

but dissented from the sentcnce.

1. Criminal Law e544

Prior testimony of State witness who

died before second trial of defendant could

be read to jury during second trial, despite

defendant's claim that his attorney did not

adequately cross-examine witness because

of conflict of interest, where prior convic-

tion was reversed solely because of conflict

of interest that was created when ‘rial

court appointed same attorney to represent

both defendant and his codefendant who

subsequently became witness for State, but

there was no indication that conflict of in-

terest impaired or affected adequacy of

cross<xamination US.C_A. Const Amend

2 Homicide +325

Where defendant's attorneys did not

object to instru-tion on second-degree felo

ny-murder which was based on definition

not in effect at Lime of murders, defendant

failed to preserve claimed error for review.

West's FSA. RCrP Rule 3.390(d).

3. Homicide e354 a

Death sentence could not stand where

State did not prove beyond reasonable

doubt that defendant committed murders to

avoid lawful arrest or to hinder law en-

forcement.

4. Homicide e345

After District Court of Appeal deter-

mined that two aggravating factors in sup

port of death penalty were not supported

by evidence, remand was necessary for

evaluation of relative weight of one remain-

ing aggravating circumstance and two miti-

gating circumstances in origina! sentencing

order.

* APPENDIX B &

Supreme Court of Florida

THURSDAY, NOVEMBER 17, 1983

RICHARD KING, e

» *

Appellant,

sew#ee+en es neee

Upon consideration of the Motion for Stay of Execution

filed in the above cause by attorney for appellant,

IT IS ORDERED that said Motion be and the same is hereby

denied.

A True COPy TC

cc: Warren H. Edwards, Esquire

TEST: Mark C. Menser, Esquire

7 tte —™

Sid J. White '

Clerk, Supreme Court

SE CHE

i PES

—° wera ecocwe|0|C0SCTWD®

Supreme Court of Florida

FRIDAY, SEPTEMBER 16, 1983

RICHARD KING,

Appellant,

Vv.

STATE OF FLORIDA,

Appellee.

eee ee eee ee

2 82 ei 82 23 2 e222. 2 FB

CASE

NO. 59,464

Circuit Court No. CR79=-3450 Div. l

(Orange)

Upon consideration of the Motion for Rehearing filed

in the above cause by attorney for appellant, and response thereto,

IT IS ORDERED that said Motion be and the same is

hereby denied.

A True Copy

TEST:

Sid J. White

Clerk, Supreme Court

py: UO ny (ar Ove

Deputy Clerk

cc:

Hon. W. D. Gorman, Clerk

Hon. Richard B. Keating, Judg

Warren H. Edwards, Esquire

Mark C. Menser, Esquire

’ . - ° .

: , : : * ;

@ = appenvi @ te a

xP THE CIRPCUL? CUURT OF THE

NINTH suUDIC CIPCUIT, IN AND

FOR ORANGE COUNTY, PLORIDA

CASE NO. CR 79-3459

STATE OF FLORIDA, -

——_

= =

Plaintiff, ae

vs :

~ on

RICHARD KING, : /) :

Kb . =

De ne “~ ‘

| / - -

> ji/

- ‘

ORD R

Comes now the Court and makes the following findinc .

facts

1. That the Defendant was indicted and tried for,

found guilty of, the crime of murder in ¢} first decree:

Ze That the jury recommended to the Court } a vote of

nine to three that the Court sentence the Defen int *o

death;

3. That certain of the agcravating circumstances listed

in Florida Statute 921.141(5) exist in this cause,

to-wit:

A. That the Defendant was vreviously convicted of a

felony involving the use of violence to the

person in that in 1969 in South Carolina he killed

; a woman by striking her in the head three times

with an axe and was convicted of manslaughter for

that killina;

B. That the capnital felony involved herein was esnecially

heinous, atrocious, or cruel in that the victim

was struck forcefully in the face by the Defendant

with a heavy steel bar, not rendering the victim

unconscious, after which the Nefendant went to

another room of the house involved and secured a

pistol and returned to the victim and shot her in

the face and in the back of the head with the

pistol, causing her death;

D- |

ex re >) | @

Fal Pre ss & bd

C. that the cavital felony involved herein was a

homicide and was committed in a cold, calculatag

- and premeditated manner without any pretense o€ moral

or legal justification in that after having struck

the victim a crevious blow in the face with a heavy

steel bar, which did not render the victim unconsei

the Defendant went to another room of the house

involved, secured a pistol from its place of

concealment, returned to the victim and shot har

with the pistol, once in the face and once in the

back of the head: that the said acts of the

Defendant were precinitated by an argument with the

victim; that there is no evidence that the victin,

who was female and Physically smaller than th

Defendant, was threatenina the Defendant in any

way at the time of his said acts:

4. That the aggravating circumstances specified in Florida

tatute 921.141(5) and not found in 3., above, to exist

in this cause do not exist in this cause;

5. That no mitigating circumstances, either those listed in

Plorida Statute 921.141(6) or others, exist in this

cause;

6. That sufficient aggravating circumstance exist in this

cause, not outweighed by sufficient mitigating circum-

stances, to justify the sentence of death.

DONE and ORDERED at Orlando, Orange County, Florida

——

. ta /] iY, t

tithe Be, 5 hal

JUDGE

this 2nd day of July, 1980.

Copies to:

State Attorney, Ninth Judicial Circuit

Public Defender, Ninth Judicial Circuit

od.

; - ~ope-4

: EXHIBIT E uy sis, =m. ‘ ones |

UNE + Deo th OP THR NIT 1 feline AT. CHMCHINT IN oa,

LATE. Ob PEA . ° PUM UMANGK CAIN Y, PLAMIDA f,

ja | 3 20PH"H0 ese

Vistaut CAS NUM (, 4 : _*

cs. SLZ3 L620

FiLELO IN OPEN COURT

er 4 ‘

. Arch aco King Tus 2 WAY Ol Duds Uh ae

RP. Kirkland. —

Ddoteonect nent ) 4

WV SA Oem Al Cea, x UL.

JUDGMENT AND SENTENCE i

You. Te LAC teak, 7 *: 4 po eae Pe - . bung now before the Court, attended ly your

attorney, ante “Sac hee a i. so . and you having (1) beam triet and fomnd guilty of

(2) ppbmanbertmertry 7m (33) picadaal oc tanto - Zeer LES ere Lie FeteX

: hy ace aw) "faa 12 (792 siiacesacaigiiaineineielaiiaanainatiaiains

the Court Adjudges that you ae puilty of said offense, aad it is the Sentence of ine Law and the Judement of the

4 s. :

Court tnat you, —<LeeAuted Shien : Srocutaietaemnpabte |

7 CUSTOOY OF THE

Le A nero or CORRECTIONS TO DE IMPRISONED FO |

° ‘

y 7 :

, we 4,

ee ee

Seniacaiiedinsasii Py FL ed

as requwed by Sec. 960.20

) and you are further Ordered to pay a feme of §

~ —— 20 |

5 as SH surcharge under Sec. 960.25, and Cont m the amount of 5 od |

}

> — |

\ aad Cost nrtre ot ot} ———

. !

SN |

' DONE and | eee in Open Court at Lalande . Orange County, Flonda wis we

__ 2s ON ep ies « 3,760 RC

(Fingerprints, uf required by Sec. S21 241 Florida Statutes)

4 FINGERS TAREN SimuL TAMEOUSLY Ltrt Troms BIONT ThUMs 4 FIPOCERS TAKEN SimUL TANEOUSLY

LEFT HAND RIGHT HAND }

. i o* }

a be Be nd ae ~ |

\ on , ar} «tee

4 % » See ats '

¥ “l(t rs 5 >

= £515 . ay <j .

“ "3 qa rae ee %

. “S@ é “~ |

; wad r |

I herehy certify that the above and forexoing fingerprints On this judgment are the fingerprints of the defendant,

fecha Fang —________. . and that they were placed thereon by said defend-

- {3 ’ -

ant in my presence, ia Oper Saye etter eno“ day of ee &Y a J ¥

)

pursnant to Sec %1 241 ”

’ 4 Sf

ene A elie Ya

ieetl ett iF A. se - o eee Me Cy SN

APPENDIX F

SENTENCE Ch. 921

CHAITER 92

Pees «of

lege

{ ne

™~ ence prisonmen

capital fe

ther proceedings

felermin

Appearance o to make stateme:

sentencing submission of

mn stateme:

Wf execution ntence tol

1 proceedings

roncurrent and wher

nmeeculive

nlence not to run unti |

creacit

county jail time after sentence, cert

imp sed

ate of sheril!

for ine

felony

ielerminate period for non

e. restitution a mitigation in cer

ain crime

Classification summary: Parole

tion Commission

Feports te

nmission

of exact period of

ind Probation ¢

rmination

ment by Parole

spon

Presentence investigation re ports

judgments, fingerprints required

record

Subsequent offenses

under chapter

meth i prool epplical ie

421.09 Fees of physicians who determine

Sanity at time of sentence... The court shall allow

reasonable tees to physicians appornted by the court

to determine the ndition of a detends

who has alleged as a cause for not pronoun:

sentence The fees shall be paid by the county in

whieh the mndictmont was found or the information

or affidavit filed

Hietery .

mental «¢

maanit

921.12 Fees of physicians when pregnancy

is alleged as cause for not pronouncing sen-

The court shal! allow reasonable fees to the

physicians appointed to examine a defendant who

as alleged her pregnancy as a cause for not pro

nuuncing sentence. The fees shall be paid by the

n whech the indictment was found or the in

or alfidavit filed

S ch IMSo4, 19%), COL

tence

pe es

921.141 Sentence of death or life imprison-

ment for capital felonies; further proceedings to

determine sentence.

(1) SEPARATE PROCEEDINGS ON ISSUE OF

n or adjud

ny, the

delendant of fe

ict a ; t ntes ef ‘

ne whether the . ut s id be sentenced to

euth ize by s

nducte by the

practicable

at} rr fe i risonmenit as

el. The proceeding shal! he

trial

simility or tity, the teal jury

lL pudge before the

s mp

2 Si* as

»reconvene for a hear gon the tissue of nen

determined the guilt of the acc

nmon # special jufor of

r 914 to determine the issue

If the trial yury has been

sded gunity: the sen

encing proceeding sha! ducted

impaneled for that purp Less Wail

fendant. in the proceeding, evidence may be pre

ented as touanyvr deems relevant

to the nature of the crime and the character of the

lefendant and shall include maticrs relating to any

vating of mitigating circumstances er

fore a jury

ed by the «

atter thal tne ur'

er ed bUbsec tion ‘la

which the court deems to ha

al! m

of any

ition ul

letendar

arg i€

hether s

a> enumerated

Whether s

which outwe

imstances

exist imstance

found to exist

fc) Based n ; T1oOns

detendant should fe imprison

or leath

(3) FINDINGS IN SUPPORT OF SENTENCE

OF DEATH.— Notwithstanding the recommendation

of a majority of the jury, the court, after weighing the

aggravating and mitigating circumstances, shall enter

@ sentence of life imprisonment or death, but if the

courl imposes a sentence of death, it shall set forth in

writing its findings upon which the sentence of deagh

1s based as to the facts

(a) That sufficient aggravating circumstances ex

ist as enumerated in subsection (5), and

‘b) That there are insufficient mitigating circum

stances to outweigh the aggravating circumstances.

whether the

ment

In each case in which the court imposes the death

sentence, the determination of the court shall be sup-

ported by specific written findings of fact based upon

1455

F-/

‘ ams é ections ) ‘ 6b and

mor * recor . rial ANd the sentence Pd

eed ys lft ‘ if t mak the f ng re

juiring the deat ‘ he court shall impose

enter { € impr r {in accordance with

; ner Vif \\ (oF } Dt, Mi N] AND SEN

ENC I I he ag nvict . and sentence

ie sha ‘ Hect toe tat review by the

. pre ( rt } , ; lays alte cert

at t the te ? the ntire record

ess me is ext H 2 na «Tun

' x ed Wad ~ r. ( rt r good

wi ich re. + ’ > Sul rer ‘ | r

ave priority r e ses ha tn

rd < rd ew es romu.gated

AGGRAVATING CIRCUMSTANCES

Agyri ating ‘ r i> e shal ss

it he foliow g

Phe capital te was committed by a persor

r sentence fi riscomme

The icte +4 t si\ vi Jo

her capital felo ° of _ iving tb -

r threa f violence » the per

, lhe nt k ving cCfeatec & greal tisk

t to Many persor

? i Ne ipita ‘a ted while ”

’ t “as Neu “as ’ mp t i

DmMHission ow at i r ht al

ter committat ’ ne t mmit, a rot

tery. rotK afoul P r k yp ping ra ral p

fav of the unlew 4 x rf dischar 4

a tructive d et }

The capital fe aa> committed for the

pree of avording of | ting 4 awful arrest ‘

ting an escape fr ‘ “ly

f Phe capital fe was Committed for pec

ary gain

g) «The capital felony was committed to disrupt

or hinder the law heres f any government

ction or the er tnent of laws

in lhe capitart ’ was especicliy heinous

atfinious, or cruel

} he capita! f nv was a homicide 1d was

mimitied in a cold ated, and premeditated

ma r wilhoutl any prete e of moral of legal ju i

4 Da

(6) MITIGATING CIRCUMSTANCES

Mitigats Z < " es shall te the

; wit

a) the def jant hes n gniticant history of

4 rcriminai @ ‘

D) The « pita 1 was committed while the

jefendant was under Lhe influence of extreme menta!

a) disturbar

The victim Was a participant in the defen

dants nduct of consented to the act

The defendant was an accomplice in the capi

tal felony committed by another person and his par

ipstion was relatively minor

) The defendant acted under extreme duress or

inder the substantial domination of another person

if) The capacity of the defendant to appreciate

SENTENCE FS. 198!

t? r nality fr conduct rt ynforn P

{ the requil ent f law was substants f

he age of the def la ut the tus th

crime

ieetory a ot ‘ ’ ‘ “we ‘ ’

eta.—t

wl2i.143 Appearance of victim to make

statement at sentencing hearing: submissiox

writien statement

tt Sentencing Dearing, and pr

p y of ten upon any deter nt ha

\ dec ¢g r nok nliendere »any cr e.?

erm P url shail permit the sictin { thee r ‘

rwnk te laat being sentenmed *

4 Ay eur tore the tenor u t

» - king a statement der h for the re

be tawritten st ent uncer tiv te, the

eal state rine which shail he ! tl

cert r

Live ite att ‘ ra ‘ t st

torne sha advise it I t state

wiht t raiorwr s! r ate solely tou t?

{ the ase and # orxte f any ries, f i

sfs, and los irnanys ectly resulting fror he

me tor wt ho the dete ; tis being sente ed

tf srt may freluse »acceplt a neg tex

plea and er the det t stand tria

bheatewrys

821.15 Stay of execution of sentence to fine

bond and proceedings

When a defendant is sentenced t p a tine

t rave the right te ft i hor payer itv

f and the costs of prosecution. The bor re

executed by the defendant and two sureties apore ed

by the sher ff or the officer harg d with exe '

udp nent

lhe bond shall be made payable in 4) days t

tne ¢ Thor a successors mn offi

> If the snot pas at the expirats {[o

jlavs, the sheriff or the flicer wrged withexecution

the judyment | indorse » default on the bond

and file it with the clerk of the court im which the

judgment was rendered. Tt erk shal! issue an exe

cution as if there had heen a judgment at law on U

bond, and the same procee lines shall be followed as

other executions. After default of the hor mn

convicted person may be proceeded against as if bond

had not been given

Hielory ‘ . ‘ set “<« . y ‘

nia. 2 .

921.16 When sentences to be concurrent and

when conseculive

(4 A defendant convicted of two or mure offenses

charged in the same indictment, informs (ion, or aff

davit or in consolidated indictments, informations, or

affidavits shall serve the sentences of imprisonment

concurrently unless the court directs that two or

more of the sentences be served consecutively Sen

tences of imprisonment for offenses not charged in

the same indictment, information, or affidavi shall

1456

-_ we

APPENDIX G

F.S.1981 , - TRIAL JURY Ch. 913

CHAPTER 4

TRIAL JURY

915.05 Grounds for challenge to rmedividual jurors (ih) the yorur was a witness for the state or the

for cause defendan: the prevuminary bearing .+ before the

¥1!.08 Number of peremptory chailenges arend puss or ws ~ a wiiness fur either party at the

913.10 Number of jurors trial!

93.12 Qualifications of jurors thet The juror o @ surety on defendant's bai

913.13 Jurors in capital cases bend on the cave

Yi5.15 Special jurors oe + Oe IO OGL IO Seep eanNiet: 6 2

913.03 Grounds for challenge to individual

jurors for cause. —A challenge for cause to an .ndi-

vidual juror may be made only on the following

grounds:

(1) The juror does not have the qualifications re-

quired by law;

(2). The juror is of unsound mind or has a bodily

defect that renders him incapabie of performing the

duties of a juror;

(3) The juror has conscientious beliefs that would

preclude him from finding the defendant guilty;

(4) The juror served on the grand jury that found

the indictment or on a coroner's jury that inguired

inte the death of a person whose death is the subject

of the indictment or information:

(5) The juror served on a jury formerly sworn to

try the defendant for the same offense:

(6) The juror served on a jury that tried another

person for the offense charged in the indictment, in-

formation, or affidavit;

(7) The juror served as a juror in a civil action

brought against the defendant for the act charged as

an offense;

(5) The juror 1s an adverse party to the defendant

in a civil action, or has complained against or been

accused by him in a criminal prosecution;

(9) The juror is related by biood or marriage

within the third degree to the defendant, the attor-

neys of either party, the person alleged to be injured

by the offense charged, ur the person on whose com-

plaint the prosecution was instituted:

(10) The juror has a state of mind regarding the

defendant, the case, the person alleged to have been

injured by the offense charged, or the person on

whose complaint the prosecution was instituted that

will prevent him from acting with impartiality, but

the formation of an opinion or impression regarding

the guilt or innocence of the defendant shal! not be a

sufficient ground for challenge to a juror if he de-

clares and the court determines that he can render an

impartial verdict according to the evidence:

915.08 Number of peremptory challenges.

(t) The state and the defendant shall each be a!

lowed the following number of peremptory chai

lenges.

(a) Ten, if the offense charged ix punishable by

death or imprisonment for life;

(b) Six, if the offense charged is punishable by

imprisonment for more than 12 months but is not

punishable by death or imprisonment for life:

{c) Three, fur all other offenses

(2) Ti two or more defendants are tried yointly

each defendant shall be allowed the number of pe-

reraptory chalienges specified im subsection (}). and

the state shali he allowed as many challenges as are

allowed to all of the defendants

History —« 1% ch 1964 Ie COL Ibe

on Se. se es

913.10 Number of jurors —Twelve persons

shall constitute @ jury to try all capita! cases. and sx

persons shall constitute a jury to try all other ce:mi

nal cases

History «6 te

mis L 1S) Seppe MIS 8 BT OF

913.12 Qualifications of jurors.-- The qualif:-

cations of jurors in crimina! cases shal! be the same as

their qualifications in civi! cases

Hictery.-KS 269 GS Yer BGS au? COL azst 9 ce ie

Nete Furmers #2 19

913.13 Jurors in capital cases.—A person who |

has beliefs which preclude him from finding s defen

dant guilty of an offense punishable by death shall

not be qualified as 6 juror in a capital case

Sil cm eh tae RS oe GS we RG Gx COL =a 5

Sara vis

Nete. Formers #1 >

913.15 Special jurors.—The court may sum-

mon jurors in addition to the regular panel

Histery - Rs 286) Us ew BCS oe” OGL ew « 91 -® 70 Oe

Note Former. ©

APPENDIX H :

Rule 3.110 geres o CRIMINAL PROCEDURE

Neotes of Decisions

i !m generat it t sul sparit. of (oa sy

; ‘ tn fi } ! i f «tt b r

" j he " - ‘ BE JR = tstypeersenbodd ten the owl

Jiivhe j , tes rs , ! ! breech whet econ

el i Hist at bene ta porated oof Photocopies inn

mn ? pee Ges 090 evemtend : ‘ ' , Y el tert dee Vtelotedd

as sich nis ate " seory ee aL ovrf red tarbes is

fair tris Ourt cold predteue Pe “re Woa hearing comlweted fos

Pebeertene sag ‘ 0 prises ott Ele preps ef reve ing srosqeeomebing

~ mling bis ‘TTacntment of fate te " Hews of a professional

et aver « " ht Way te Pron the hovered then 1 oF Tramitead -“ 'y ‘ont

court) ses. on Foi the) ewartreeeny -iede ee ie leites ed

a at i) moteurs THs Om ATTY Chen

ievine! (58 28 Ine 97 1a

Rule 3.111. Providing Counsel to Indigents

(a) When Counsel Provided. A person entitled to appoint-

ment of counsel as provided herein shal! have counsel appointed

when he is formally charged with an offense, or as soon as feasi-

ble after custodial restraint or upon his first appearance before

a committing magistrate, whichever occurs earliest.

(b) Cases Applicable.

(1) Counsel shall be provided tc indigent persons in all prose-

cutions for offenses punishable by imprisonment (or by incarcer-

ation in a juvenile corrections institution) including appeals

from the conviction thereof. Counsel does not have to be pro-

vided to an indigent person in a prosecution for a misdemeanor

or violation of a municipal ordinance if the judge, prior to trial,

files in the cause a statement in w riting that the defendant wil]

not be imprisoned in the event he is convicted,

(2) Counsel may be provided to indigent persons in all pro-

ceedings arising from the initiation of a criminal action against

a defendant, including post-conviction proceedings and appeals

therefrom, extradition proceedings, mental competency proceed-

ings, and other proceedings which are adversary in nature, re-

gardless of the designation of the court in which they occur or

the classification of the proceedings as civil or criminal.

(3) Counsel may be provided to a partially indigent person

upon his request provided that person shall defray that portion

of the cost of such representation and the reasonable costs of

investigation as he is able to without substantial hardship to

himself or his family, as directed by the court.

(4) “Indigent” as used herein shall mean a person who is un-

able to pay for the services of an attorney, including costs of in-

INDIGES Rule 3 111

dase

ii ’ r

, ‘

! | ils / t ‘ ‘ at

; hh Pigent toy ¢ i

) tha t? lele int ha t aia é

ole | 1ej ne Tinte ‘

-) If the defe, tr est ir) x6 ! s th fice

‘ 4annot afford ‘ ard off , n eliatel, ind ef

‘ } -

fective Ce? Suid ‘ , it i > wit} Nhe ff

td Public Def ler of ¢) t | a? he uy? twa nade

>, T¢ / 4 ‘

(>) If the lends Mdcates he hy @h allorney oy tut

to retain an attor ev, the ficer shi; ediately and effec.

tive Pince sai lefendanyt on j it with } ttorney

r t

or the A4aWiyer Referr; t eof the 4: bar associatior

. . .

(4) The Pub), Defender of hud Circuit mar upon

DEINZ conta ed by. or oy bn [ et t 0 18, OY repre.

° ,

sents hitmnself ty } midigent as de ed hy forthwith int r-

,iey Said defen, tana

1) If the des ‘ant is in cyst ' reasonab appears

he ’ ‘

to be 3; KenL, the F lve enue ii ft ier to Mm such

ad Ce j is : t the facts f e Case Sey the set.

> , j 7

ing « I nie 1. and otherwise resent icn de

Bas

levdant behuding a Wai udicia etermminat on of ind

ge :

' :

(1!) If the defend iutis at hberty ont

IN custod)

i Dail or otherwise not

¥, the Public Defe;, ler shall elicit on ¥ such infor-

mation from the d fendant a: May he r

reasonah]

gency and shal]

'y relevant

to the question «

ya ITN

a immediately seek a

formal judicial determination of indigency. If the court

} he @ t 0,3; , - ‘ / ,

finds tl] defendant Ndigent, it s} immediately a point

rounsel to represent said defendant

(d) Waiver of Céunse},

(1) The faijure of a defendant to request appointment

sci OF HS Announced j; tenti lead gu ty shal/

onstitute a waiver Of counse! at any stage

n to p

of the proceedin

ia)

ee ee a a

Rule 3.111) gry ys

‘)P TiIMINA| PHROCKDIY

‘

v ’ b > ’

e ‘ i \ y

‘ OC AIS age j

, ¢ t er ® caw

1) aiver «of j im !

a ‘ . @ ou jit Ney * yy , ,

iia ia esiing w tries - ‘

tiie iarv €xe ? eat

‘ 1s ‘

i a dive act : at b -

ings, e viler of a sta j e A

, r . 2 ’

“ 1e@ dete cant appea j ‘

, -_

Committee Notes

1972 Adoption mart 1 of the Aj A F ‘ ‘ K to J

; , lefer ~ 4 _ —

sitig i t ‘ als “ith ge j

ding crimirs hel mae ‘ia :

that th a s h ah { ' t th, -

t sia . ker r . > ’

articular ry e th s ce , nat

’ tair j ri > mh e tere ‘ - ‘ »

riorid re having a Sefender ry j

» > ’

With th a=Sig sé ster

4) Taken fron the first « ntence of AR& ‘ ’

. —t

‘2 onsideral}. @ , withir the « mit e y

Shen couns she 4ppointed and who «} ’ f ef t

’ ,

inst Th n ar nh ¢ ABA St : r ] :

, 4 . a the mir ’ . le tr z la iy - we ne re , ita

} ; ‘ . ,

oO) Standai i] 3€3 iMat counss r r

Minal Cases misnahle t loss f libert ex ? of? sv

. punish s not likely to be impos The mittee det,

mined tha? t} hy pb ‘ ich Stand hould he + ™

to the Flor rn ourt. The committ etermine hat s

dg privatior f rty for any Period makes ac 13 ¢ ght

Cg ised should have the EAt to counsel

4 1 . ’ ~ 4 4

Based x ecom: ation f ‘ i

commentary thereunder wh provides Mplementat fa

lor providing the defendant with counsel should not be limit, i to |

4; ns for the ; sad thien f* ae :

ICINng a means f; * Eee aCCuUsed himself t, nrlacta wirer

. = , : oe ts :

(d) from otandard 7 2 and the commentaries there Inder

——-3

2 APPENDIX I

: PRE TRIAL DETERMINATIONS & HEARINGS Rule 3.131

wis charged refuses to take amy ac 28. Review

thom Whateser in the case either as Record failed to establish right to

t belt or trial on the ground that bail “tate ex rel Loper vo Stack,

we te disp ealifeesl by reason of inter App 1974, 20) So 2d 2O7

t aml affinity te act, and it dows

' pear to the sopreme court on a Appeal is available for orderly re

Laleaws Ceurpus pressing that the View of denial of bail pending trial

vigy is dispualified, bail condition. Fleker vo Taff, App itt4, 200) Se ld

el for the party's appearance before ru

«criminal court of record will be al The exercise of discretion in admit

| bx parte Parris, U8) oO fing aceused te bail ix not subject te

bia 77,7 Se 2 GLUA T1323 Am review on eerfoerart State Bre ay,

St Rep Sas M45, 155 Pla a7 ve Se 2d 48)

A person accused of a capital Supreme Court had no Jurisdletic

crome, and held under a mittimus ¢ fo fetiew on appeal on behalf of

sued by @ Mucistrtate fo await the ar Stites im otele of circuit ert re

thos ft Kram jury, is entithed leasing actused on bail Id

upen baleas corps te intraduer est

thene fsthow the real character or 29. Remand

cire nestanees of the alleged of feuse, Where trint ov del pet have }

tba should be admitted to Dail cibess fore ham supreme court Stews as te

the proof is evident, of the prestniyp factots te be comsuleredd by bine tn

tiet great that he ts guilty of a exereissng bis dixeretion as to wheth

capital offens This right on ha eT te tTehase defeidaat on ball ot

leas Corpus is Rot lost or surten ti he denied defendant's applies

dered by the aerused having Walved tien for ball supreme court would

a preliminary ex umination before th relinquish Jurisdiction of defendants

inagistrate, and the omission of the ippleation temporarily, and remand

magistrate to make the examination the matter to trial court with direc

on account of such waiver Benja tions to reconsider defendant's appl

min v. State, IS89. 25 Fla. 675, 6 So cation for bail in light of standards

430 at forth by Supreme Court Young

Where bo arrest ix made for traf “

fic violation, there is no atatutery Judgment in habeas corpus pre

authority for sheriffs department to eeediog comamding tu custealy with

give alleged traffic iolator a notice ont ball owe Indicted for first degree

designated as a summons informing %urder Was bet res Judicata preclud

alleged off)*ader to appear before ing admission of accused to ball after

court, and, theugh he may voluntari a toistrial during which sta’ after

ly appear and subject himself to ju ney seorht cenvietion of murder in

rimbetion, be wey net be penalized sooutet degree only, In elrenit: court’<

for failure to dou sw 195 Op Atty evercime f diseretion State

Gen. USB), May 3, 1905 Freer, 1945. 155 Fin. 480, 20 Sowd

isl

Rule 3.131. Pretrial Probable Cause Determi-

nations and Adversary Preliminary

Hearings

(a) Nonadversary Probable Cause Determination.

(1) Defendants in Custody. In all cases where the defendant

is in custody, a nonadversary probable cause determination shal!

be held before a magistrate within 72 hours from the time of

the defendant's arrest; provided, however, that this proceeding

shall not be required when a probable cause determination has

Rule 3.131. ruLes OF CRIMINAL PROCEDURE

Leen previously made by a magistrate ar urrest warrant 1s-

sued for the specific offense fur which U ndant is charged

The magistrate for good cause may continue the proceeding for

ot more than 24 hours beyond the above 72-hour period, This

determination shall be made if the necessary proof

iS AVAllAabDiv

at the time of the first appearance as required under Rule 3.130,

but the holding of this determination at said time shall not affect

the fact that it is a nonadversary preceeding

» Defendants on Pretrial Release A defendant who has

been released from custody before a probable cause determina-

tion is made and who ts able to establish that nis pretrial reiease

conditions are a significant restraint on his liberty may file a

written motion for a nonadversary probable cause determina

tion setting forth with specificity the items of significant re-

straint that a finding of no probable cause would eliminate. The

motion shal! be filed within 21 days from the date of arrest, and

notice shall be given to the State. The magistrate shall, if he

finds significant restraints on the defendant's liberty, make a

probable cause determination within 7 days from the filing of

the motion

(3) Standard of Proof. VUpon presentation of proof, the

magistrate shall determine whether there is probable cause for

detaining the arrested person pending further proceedings

The defendant need not be present. In determining probabie

cause to detain the defendant, the magistrate shal! apply the

standard fur issuance of an arrest warrant, and his finding may

be Lased upon sworn complaint, affidavit, deposition uncer oath,

or, if necessary, upon testimony under oath properly recorded

rrobable cause is found,

(4) Action on Determination. If |

the defendant shal! be held to answer the charges. If probable

cause is not found or the specified time periods are not com-

plied with, the defendant shal! be released from custody unless

an information or indictment has been filed, in which event the

‘efendant shall be released on his or her own recognizance sub-

ject to the condition that he or she appear at all court proceed-

ings, or shall be released under a summons to appear before the

appropriate court at a tie certain, Such release does nct,

however, void further prosecution by information or indictment

but does prohibit ary restraint on liberty other than appearing

for trial. A finding that probable cause does or does not exist

shall be made in writing, signed by the magistrate, and filed,

together with the evidence of such probable cause, with the clerk

of the court having jurisdiction of the offense for which the

defendant is charged.

PRE-TRIAL DETERMINATIONS & HEARINGS Rule 3.131

(b) Adversary Preliminary Heanng

‘ | wT ’ ca ,

( i} ip Aly A defs 2 urge “al

‘ ‘ . +, . ; . ! ‘

T On OF ? ent - as m t : -

arrest or ‘ \ ‘ f tye . is j , " ; t te

1 ’ r e

pe g 4 t hur The su ; ! tion

’ “tn t i446 NOt elit te a dele “a there te

2) Proces fhe igistrate e such 7 a

Pf y the necessary ¢ t i iitle! i e of Line ‘ the

State for the state or the defendant

{ Is nests All wit sna! e% , exe e

f the defendant i miay be ‘ eX ! f

re t that the witnesse Sey #! 4

the testu for the | ecuti the “ é

wie i» ’ amd testil nf

3 he shall be armed Ivance of % t Z

ne 7 i al nm use ixainst j 4 ‘ ‘

ma us 4 — Kafr re , ’ "he an ¥ ; ‘ >

a! any witnesses offered by im s“wor il ed

i) Record. At the request of eit! art e+ e pre

wiminary nearing, including a!! testimony, sha ecorded

verbatim stenographically or by mecnanical mea i at the

request of either party sha!! be transcribed. If ¢ 1 of

the pro et ng rany pa tt ¢ t ae | ‘ «A é ,

of the prosecuting attorne t ty t .

furnished free st to def ant or his counse

(5) Action on H ) If f evicence i? a t

the agisfrute tr there robe p e te eiieve that a

o! Sv Nas Deen ¢ nitted ar : tle fen ;

mitted it, the acistri nali Ca Like efer int io De hi 3

t 2nswer to the revit urt; Lherwise, ihe magistrate a

release the defendant from ton! niess an inf La ‘

i trnent has Dee i ied ! wh event the defe ant i

De re.eased on ! or ner own recognizance suhpect to the cor

? ’ that he r he : il at a urt rr . < ‘x “a: ad

eq uncer a immons to appear beiore the approy ate

tai ertain oucn reieuse du t , t \ |

urther prosecat by informati ' ment | es pr

hibit any restraint on liberty other than earing for tria

A finding that probable cause dues or does not exist sha '

made in writing, signed y the apistrat togethe at

the evide received in the cause, sha € filed with the clerk

APPENDIX J

IN RE TRANSITION RULE 23 COMPETENCY. ETC

Fila

B55

Cite as, Fla. 375 Sold O55

Choctaw hat hee fF £ ir (

mperative (Chel-

Th record reflects Chiat tre

mot de perted fr @m Ure ntial

ens require-

ments of law in its ruling in this cause

Accordingly, the petition for writ of cer-

horar: is denied

It is so ordered

ENGLAND, C J. and ADKINS, OVER

TON, SUNDBERG and ALDERMAN, JJ.

concur

—_

C/ =D

—_—

In re TRANSITION RULE 23 COMPE-

TENCY TO STAND TRIAL AND BE

SENTENCED: INSANITY AS A DE-

FENSE.

Case of Original Jurisdicts n

PER CURIAM

Jurisdiction to adevt rules of practice an

ant. V

Pursuant to this

suthormty we hereby adopt as a Court Rule

336, Laws of

procedural in nature

procedure iw vested in this urt

section Qa) Fla Const

those portons of chapter 79

F) nda

the ful

which are

also adopt as Transition Rule 2Wa)

swing

1. We have jurnsdictior Art

Rule 3210a) At the initia vearing he'd

pursuant to Fia Stat. 894.902, the court

shai, Consider the foilowing ixaues

a Whether the defen ant OTN p- ent

to stand trial,

If it is determined by the court that

the defendant is not competent to stand

trial, whether the defendant meets tix

enterra for involuntary hospitalization

If the issue of sanity at the time of the

offense has been raised by the defendant,

the court may order that the examination

of the defendant by expert witnesses to

determine competency to stand trial in-

ciude an examination of the defendant to

Getermine his sanity at the time of the

offense

The Court also adopts as Transition Rule

2b) former Florida Rules of Criminal Pro-

cedure 3.21¥e), sections (1) through (8)

This transition rule is adopted as a tem-

porary measure pending a final recommen-

bon from the Criminal Rules Committee

ENGLAND, C J. a

ON ERTON

MAN. JJ

d ADKINS, BOYD

SUNDBERG and ALDER-

concur

—

sf* ever * UrSTLe >

i ad

Fla Stat

(197

ee APPENDIX K *

A ’ - t é .

oe. i? ate Se enforcement off ‘ t one t-

é ) Stele ayency « enp y* a

- rese ; + « r

4 ate ‘ t

ere be e a

y .

4 7 ‘ i+

agenc ® @st fisted ¢ present ¢t “ -

e en, y ‘ be regu Us f

fwa .

3 a ¥ fore a baedje e

BaRerTOL @ prior service and shall b

the eme y 9 Syency Shai pre t ’ €

sectio e- vbsect.or ; vf Sectic aie suriad ité«

netceby cepeaied.

ec This act sheil cake effect ups be =i

Appreovec b the Governor Jul +, 9%,

? y ’

Pilec in Office Secretary of State July § iy’ 9.

CHAPTER 79-336

Senate 8111 No. 110

An act reiating to mental health; redesignating pa

chapter 394, Florida Statutes, and transferring ct

provisions of law relating to persons found not gui

by reason of insanity and persons incompetent to stand

trial; creating s. 394.901, Plorida Statute » chang

the criteria for involuntary admission of or

iJ jpwiicated net julity ty feauur uf

transferring existing provisions felating to procedures

for continued hospitalization and release of

persons from part I of chapter 394, Florida Statu

fenumvering and omending s. 916.15, Florida Statu ‘

transiercing to part Voof chapter 194 provis:

relating to mental incompetence to stand teria}

renumbering and amending s. 925.10, Florida Statutes,

Specifying the experts to evaluate a defendant whom the

court hes reasonable grounds to velleve to e

ncompetent to stend trial for the purpose of maki

certain determinations; Previdging that the applica!

Stetute of limitations shall toll during the period

incompetency; transfercing from ss. 918.11, Florida

Statutes, Provisions relating to fees for : ct

witnesses appointed to evaluate the Gefendant; c i

S. 394.904, Florida Statutes, Providing that defenda

mace Competent by psychotropic medication shall ot

automatically be Prohidited from standin trial;

amencing subsections (1) and (6) of s. 394.467, Plorida

Statutes, relating to commitment criteria and release

1754

“ a \

6 m t. »

PS Pe ra Ja Ta@tules nt ‘ my

feovid 4 s@. @Oiiity "i Ste

trie i eu elute - if .

* . ne e@ of pert a er 94, Fiot 4 tea tes

sme) . imines Menta. fe@aitn.* Secti 4.651, f ice

at ee, ss TenouwmvdDered Ss Secti 394. 9U5 ei ide Stutes, se ig

94.56, Flocice Statutes, forme: Section 194.4671), renumbered as

section 394. 9086, Pioridea Stetutes, Sections 9.6.15 @nca $25. .

fiorida Statute ace fenumbered and seended and sections $94.90,

ies 294.904, Flerida Latules, ere festevd te read

S94. GL, +Ovo.untary 20m! tel Ssetion oo persons adjudicated ot

saty By reaso f an@enity.

i) CRITERIA.--A person wt *S ecquittes cf criminal charges

GCecause of @ finding of not Gvisty By resson of inss y May be

‘Mvosunterily hospitalized pursuant to such finding if ne is mentally

+4s and, because of his mente! iliness, is menifestly dengerous to

himselfoor others.

(4 PHICLOURE FO AUMISSION. --Any Sourt tdver uitects the

“ % e

"OSpit@lization of a person adjudicated not guilty by frease of

insanity shall ecdequetely document the nature nd eatent of the

patient’s mental iliness. Such documentatior sneil include a

PSychsctric evaluation. In addition, other Joc mentation may be

wluvided, ty the valent » sible, uy at leant se State CF Plo ved

PeyChisteist, Peychologist, of Physician, puychiatrist, psy Gilvuy.

Of phySician a8 designated by the district mental health board, oc a

cor nenatal health Center psychistrist, psychologist or

ph Evecy person acquitted of criminal charges by reason £

InSenity shall ve admitted for hospitalization and treatment in

eccorcence with the provisions of this section. The treatment

fecilicy may accept and cetain @ patient so adeitted for a period not

to exceec 6 months whenever the Patient is seccompanied by @ court

orcer and adequace documentation of the Petient's ment iliness.

such documentation shall include a PSychiatric evaluation

psycho loy ie i anus social wore evaluations of the pat!

document the results of any Criminal investigation on

tf furtner NhesSpitae@lization is necessary at the end of

@uthorized treatment period, the @c@inistrator shall a;

Nearing examiner tor an order @uthorizing continued hosp

(3) PROCEDURE POR CONTINUED HOSPITALIZATION; HEARING OFFICER. --

(a) If continued NMospitelization of »« petient admitted pursuant

to this section is mecessacy, the administrator She.i, prior to the

expiration of the period Curing which the treatment fecility is

authorized to retain the patient, request an order authorizing

Continued hospitalization. Mis request shal! ob accompanied by a

Statement from the patient's physician justifying the request and a

Orief summary of the Patient's treatment during the time he was

hospitalized. In addition, the administrator shali subait an

ingividualized pian for the patient for whoa continued

MOSpitalization is requested. Notification of this request for

Fretention shell be mailed ty the patien and his guardian or

1755

HA PTE ; 2 i Aw F Flu A A ,

ws - ‘ ~OMLe ‘ °

granted a4 tne et the v3 rt ‘ e t e,

fro e® cue seg anit era... e; J ‘ ' es € ]

bs es 3 pat.ent ana : e es

u ~« re H er zt vuse y 4 f .

e ‘ a v , - ‘ ‘

> e t +} Pag attor 3 ‘

. pa ] ear 36 s * * pe

ives titeria ~ , as

. = S ° - ated ad , ° J *?

Leer 4. i - ne patie 4 ‘

‘ er.aet iy VSpe' Sl itats ‘ e “ er

sigr 4 Ges 2..981"9 the fe@.@45 v the pe e However,

patient wo as vee coma .tted in @ criminal case Sra.i te re.,easeu

fv@g a2 mented WH ‘ acept vy truer of t / j

) in @ll proceedings under this subsection, both the patient

and the state attorney shall heave the right to a hearing bSefore ¢

committing court. In these proceedings, evidence may be presented Ly

the hospital adminuistratur, the state attorney, and the patient.

petient shall heave the right to counsel. In the event a patsent

cannot afford counsel,-the public defender of the county in which the

proceedings arise or court-appointed counss nall act as attorney

for the patient. After hearing all the eviden @ judge shell

elibercate und cscenderc @ decision based exclusive on whether the

patient continues to meet the erit snvoluntary

hospitalization specified in subsection (1). \e patient does not

neet the criteria, the judge shall find that tc! patient should be

released, The hearing provided for herein neid within 60

days from the date of the request for such otherwise the

patient shall be released in accordance with the order of the hearing

officer.

(S) CONDITIONAL RELEASE OF INSANITY ACQUITTEE PATIENTS. --in the

case of ny patient who hes been committed according to the

previsions of this section, the >emmitting court may ruer 4

conditional release based on an appropriate system of commun .ty

Cvllow-up, and such release shall specify responsibility for the

receipt of Cellow-up treatment and reports te the court for Cailie

to comply with the order of the court. In such case the court shai

order the patient tuo appear periodically in a community slini ty

ingure the patient is lLullowing a2 prescribed treutment regia

374.902 9t6r25 Mental competence to stand trial.--

(1) <A person accused of a crime who is incompetent to stand trial

Shall not be proceeded against while he is incompetent. A person is

incompetent to stand trial within the meaning of this act .f he coes

not have sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding orf if he has not

rational, a8 well as factual, understanding of he proceedings

against hia.

(2) If, before or during trial, the court, of its own motion or

upon motion of counsel for the defendant or for the state, hes

ceasonable ground to believe that the defendant is not mentaliy

competent to stand trial, the court shall immediately initiate

proceedings pursusnt to 8. 394.903 9a5rie.

1757

K-4

Cc 9-336 iKAWS OF FLORIDA AF

(3) if @ potion under SubSection [ (2 ‘S filed cr made

COUTt May order the Gefendant taker into sustody, if ne is

Slready ir Custody, until the Seterminsci

- var eency -

nade, If the defendant nh@sS Deen released from setudy 7) u G

other pretrial release Provision, and re ous is atisf

€valvation igs CceSsary Lut that tr Je fondant need 2 Le a*

Custody for son evaluation, the Court ey otcer the dele

tic t 2 pecift, : e

fsu

4 8s as .

(1) (a The eurt hal) iSSue a cJer { t jef

CxOMinec Dy at least three expert wi esse @~- 20°0@r--mertas

_-_— — ——~-—-t— -* ——~

tecetving--faeitiety “or--a-leeal-tetardation 1POQGMOUIS-ONd eva ant

teem to determine whether the def 3ant coves t t

Mospitalizatic c 11 . 4.4

invoiuntary i rc cesi tia

393.4 ?

‘ a

if e@ els nt require rCucity whl ‘

—

faciltty oF-dtagnosttc-and-evatuatton-—tese t provi j

£ experts the-recetving-faettivy-or-draenestte-and “@vV@ruetton--teass

ay evaluate the defendant in @i. of in another appro: t y

socal facility receiving facility Of-Gtaqnest te-and --evaiustian

team shall cor 10S Court-ordered evaluetic € cr

within § days of ipt of the order.

(0) 4@> rhe jrt Mall conduct ) Cari 4 i -

V¥lendant meets Line faleria fur PnVesuiluery Giga

fFesidential services,

i. it the court fands the Jelendant meets the

involuntary hospitalization or residential services, the gue

order the defendant committed to & Departee of eai

Rehabilitative wetvices intake fa ility. The Jef Ja

diagnosed and examined th 30 “

facility to

defense. a

Within the j

Criminal ju

pacticipate

may ehei?

competency

concerning

own defense

fovided t

efendant op:

expert

‘ t > rir . >uPr .

e od — e @ari the court @term.nes the elendant

c tent 2 stance sa, tne Geferndant sta. be turned t t

tr . ‘

reatment facility ry J ional , y , ie: y

“i A the ¢ “Gay & ter

i 3 y c smpetency ie ai ‘ e1

f Jtive ~"Cey e¢ Ide, the 3 e jJanc

rer n z ~ re fs ais

remains i + ‘ Court Bay cissz > arges t ]

YO.Ul ar c 8s pr sed ; é

Jef te the , 5) t ft

, - 7 - > J :

straying. t 4« ast

«. if t ourt find the efenda ,0e8§ t eet ‘ fc

eecoru¢ing-to-the-provistens ot

6. rt witne for P

t f : :

v ce f the getle ) +t east

- t 7 r

on tri ¢ pe

— A Se a a

ze the ex pe zamined

. ¢ tP té ] en?’

es whe ‘ possible 7

. attorney ang counsel for the

-¢ *?

- 44 Give the ames 4na addresse

2 e : nce ; e vel Jant’

: 3 J € arin

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