# Petition — King v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1720%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 909 ## Text cc - TP RECEIVED | Dec. I 83 - 5940 Orriwe ur ree wecRK . 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 iv 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 32 32 32 19 20 ll 30 13 17 26 12 28 30 17 19 27 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 12 27,28 12 28 21 17 17 17 17 23 19 32 9,11,12 12 30 12,30 25 13 13 10 26,28,29 10 23 below and asserting herein deprivation of rights secured by the Constitution of the United States. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED a The Fourth Amendment to the Constitution of the United States provides in relevant part: y 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: 3. "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: 4. 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: 5. 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: 6. United States 7. 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. 9. 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 I. 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 6 . 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: v 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. A. 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. 20 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. V. 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 21 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 24 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). 30 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 32 ES 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 33 , 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- © § agrmleerecrcinw Richard KING, Appellant, v. 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 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 o —— . 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 : _* ve 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 fn 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 5 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, — — | \ 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 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 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 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 “ 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 Bromfield © State. 195% tom 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 « if 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 gs n to p of the proceedin ia) © ee ee a a Rule 3.111) gry ys ‘)P TiIMINA| PHROCKDIY ‘ v ’ b > ’ e 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 - ‘ a tiie iarv €xe ? eat ‘ 1s ‘ i a dive act : at b - ings, e viler of a sta j e A © Cou it ea ecu t the pro 4 , 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, - $i t sia . ker r . > ’ articular ry e th s ce , nat ’ tair j ri > mh e tere ‘ - ‘ » a fense service ©, assigned ‘ f , ' 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 30 ——-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 hans © State, 10%), §0 So 2d aoe 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’ 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 . i ad Fla Stat (197 ee APPENDIX K * A ’ - t é . 7 oe. i? ate Se enforcement off ‘ t one t- é ) Stele ayency « enp y* a - rese ; + « r 4 ate ‘ t ere be e a r 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 o ue 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 @peaiing ) flicting set . : Fs © . 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 ed (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) 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 ‘ ° ‘ = © Pas > 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 € aring u porty. The cs ve Se : e 3 @.. ve e. wit says ‘ tn Ippo f the Cx pe s sf the def t ; 8 3 8 cus ve u ut / v e 3 @ ve tdake : ~Stody i & ceterminati 4 i Competency o. ay , . o . > competent to tend e ct B8ii proceed ¢t teial,. t it, act t afing he ouret etermi ; e Jelendarnt ete r to t 2 incos tent to te cial the detendant ay be lea j - a0. Oasis or @ppropriste re.ease co ti . 5] é c ‘ ‘ e > s e ) , a 4 Q c wn °c 2 = pro ’% SPEC IF]: INSTANCES OF CON ded s a“ i) I vhen charster or a trait of character of a Histor . ; : person is essent lement of « charge, claim, of . defense, proof may be made oi specific instances of 90.40% Exclusion on grounds of prejudice or ea confusia Nelev ani evs hoe ts Madmisstble of its Meters eo » . t t a) ali weighed by the ‘ . ar 5 fer ’ ® ' ssues r + Fneedless present nol curmuls 90.406 Koutine practice kvidence of the rou . *% ’ t at “Cc tion shal rh he cioMoelPu ! t tite pra t ° 4 ryaniZation whether rre moral ets that e¢ thee of the existence of available ed of nut : fegardiess of the presence of evewrt rf clits ts iMadtussil oe nmussible te prove that the conduct of the " , teaniéation on a particular occasion was tn nfor rit ain « frou pra Po) Niet , . ete WO.908 Churacter evidence; when admissi- Hie oo . , bs ‘} sul ue remes ‘ CHARA EK EVIDENCE GENERAI BOL4AOG IOse quent remedial measures — -f ‘ ; lence i ensure Kenoatt+r an even’. ahich ea Sse 3 e ul A perso Tit ter fa trait fut . sinhiesoille te pr ¢ that he acted sures sf tamer . re ite infeed would have made the TBST. , 2 3 ; ‘ ‘ . ¢ admiss | rive hoiton is particular oc acept , f r t fat j thik Pcuipalryie i in conime nw ihe eat ' haracter ottered ise r = } fietorys . j m ¢ re! tt rat f oop cr } ’ oF 7 ‘ " - adinissivle when relevant to prove a materi se seer 5 ony, ae OF eee See ae fact in -_ has proof of motive opportunity other Camnages occasioned by an injury of accident is ; 4. bile -_ hiew Ge in or ihlent, preparation. pian, knowledge, identity, or ab ned . to prove an r the injur — senet ' v atcident, but it is inadmissible Bre " frat ’ . 7 . . . vr when the © w relevant solely tc prove had bans har te r propensity . When the state in a criminal action intends 90.410 Offer to plead guilty; nolo con- , ler evidence of other criminal offenses under tendere; withdrawn pleas of guilty. Evidence of Purayrapl i r lower than 10 davs bef re trial the a Pica of guity, later with iri wn. a plea of nolo con i hall turnish to the accused a written statement tendere, or an offer t plead guilty or nolo contendere of the acts of offenses it intends to offer, describing to the crime charged or any other crime is ina imissi them with the particularity required of an indictment — ble in any civil or criminal pr weeding. Evidence of r information. No notice is required for evidence of statements made in connecti m with any of the pleas es used for insppeachment or on rebuttal or offers ts imissible, except when such state ence is admitted, the court shall, ments ere offered ina prosecution under chapter 837 the jury on the limited purpose —___ History ' La = 8 22. oD. OM, @. 1.2 axte * ts received and is to be consid et t the evicer the jury shall be 1501 P — 4 i * Titniite { Purpeare lor which the evi ot vt rivileges recognize on 7 88 prove é i, {and that the defendant cannot be ¢4-—Except therwise provided by this chapter consteted fore charge not included in the indictment 4fy other statute, of the Constitution of the United or inforsnation States or of the State of Florida, no person in a legal Nothing nth ection allecta the admissibili proceeding has a privilege to ty of evidence under s. 90610 (1) Refuse to be a witnes live : : nh 7s Bie ch 7847 iZ) Netfuse to dis mse any matter 347 RECEIVED DEC 19.1983 NO. A-348 Otrwc ur IHE CLERK IN THE SUPREME COURT, US. SUPREME COURT OF THE UNITED STATES October Term, 1983 83-5940 RICHARD KING, Petitioner v. THE STATE OF FLORIDA, Respondent. MOTION TO PROCEED IN FORMA PAUPERIS The Petitioner, RICHARD KING, by and through his under- Signed counsel, asks leave to file the attached Petition for Writ of Certiorari to the Supreme Court of Florida without prepayment of costs and to proceed in forma pauperis, pursuant to Rule 46. At trial and on appeal, lawyers were appointed to represent him because he was indigent. In support of such motion attached hereto, is the Affidavit of undersigned counsel and Affidavit of Petitioner. I HEREBY CERTIFY that a true copy of the foregoing has been furnished this 15th day of December, 1983, to Mark C. Menser, Esquire, Assistant Attorney General, 125 North Ridgewood Avenue, Fourth Floor, Daytona Beach, Florida 32014. / / / f" | pp fb fm hf MTR ibd WARREN H. EDWARDS, ESQUIRE Suite 101, Bradshaw Building 65 North Orange Avenue Orlando, Florida 32801 (305) 425-7676 Attorney for Petitioner Ee - NO. A-348 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 §3-5940 RICHARD KING, Petitioner | | i} | Vv. | THE STATE OF FLORIDA, Respondent. AFFIDAVIT STATE OF FLORIDA COUNTY OF ORANGE BEFORE ME, the undersigned authority, personally appeared WARREN H. EDWARDS, ESQUIRE, and after first being duly sworn deposes and says: 1. That he is the attorney for Richard King, the Petitioner in the above styled cause, and he makes this Affidavit in support! of Mr. King's Motion for Leave to Proceed in Forma Pauperis. | 2. That his representation of Mr. King is without renumera- tion. 3. That counsel was appointed to represent Mr. King on his appeal to the Supreme Court of Florida. 4. That he is informed, and beJieves that because of Petitioner's poverty, that Mr. King is unable to pay the cost of this cause or to give any security for same. 5. That he believes that Mr. | ai is entitled to-.redress oa. a ae in this action. / /, (dX —. [Mt Me 2 WARREN H. EDWARDS, ESQUIRE Suite 101, Bradshaw Building 65 North Orange Avenue Orlando, Florida 32801 (305) 425-7676 Attorney for Petitioner Sworn to and subscribed before me ee os of December, 1983. NOTARY aria lf a. Commieston Expires: ‘ | \ NO. 80-59,464 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 RICHARD KING, Petitioner, vs. THE STATE OF FLORIDA, Respondent. AFFIDAVIT | STATE OF FLORIDA COUNTY OF BEFORE ME, the undersigned authority, personally appeared RICHARD KING, and after first being duly sworn, deposes and says, in support of his motion for leave to proceed without being required to prepay costs or fees and to proceed in forma pauperis: 1. That he is the petitioner in the above captioned cause. 2. That because of his poverty, he is unable to pay the costs of said cause; that he o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1720%3A1. Public record. Not legal advice.