Petition — Buddy Earl Justus v. Florida

Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

BUDDY EARL JUSTUS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

JERRY HILL

PUBLIC DEFENDER

TENTH JUDICIAL CIRCUIT

WILLIAM C. McLAIN

Assistant Public Defender

Chief, Capital Appeals

Hall of Justice Building

455 N. Broadway Avenue

Bartow, Florida 33830

(813) 533-1184 or 533-0931

COUNSEL FOR PETITIONER

BUDDY EARL JUSTUS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

QUESTION PRESENTED

Whether the addition of an aggravating circumstance

to Florida's death penalty statute inures to the benefit of

capital offenders, thereby preventing retroactive application

of the aggravating circumstance from violating the federal ex

post facto prohibition?

a

;

2

OPINIONS BELOW

JURISDICTION OF THE SUPREME COURT

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX

1.

inion of the Supreme Court of

Florida, Justus v. State

Order denying Petitioner's Motion

for Rehearing

Section 921.141, Florida Statutes

(1977)

Section 921.141, Florida Statutes

(1979)

Indictment

Judgment and Sentence

Findings in Support of Sentence

of Death

CERTIFICATE OF SERVICE

;

.

“J

A

g

Al8

Al19

A22

A25

A27

Combs v. State

403 So.2d 418

U.S. 984, 102 S.Ct. 2258, 7Z L.Ed.2d 862 (1982)

(Fla.1981), cert.den., 456

Furman v. eres

Justus v. State

8 la.1983)

Proffitt v. Florida

G28 U.S. 242 (1976)

Smith v. State

Z2G So.2a0 726 (Fla.1982), cert.den.,

_ 0.8... 77 L.Ed.2d 1379 (1983)

State v. Dixon

U.S. 943 (1974)

Weaver v. Graham

G50 U.S. 24 (1980)

Art. I, §9, U.S. Const.

a.1973), cert.den., 416

Title 28 United States Supreme Code, §1257(3)

Rule 17, United States Supreme Court Rules

§921.141, Fla.Stat. (1977)

§921.141(5), Fla.Stat. (1977)

§921.141, Fla.Stat. (1979)

§921.141(5) (i), Fla.Stat. (1979)

Tr wt OF er. FF OCU

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>

The opinion and judgment of the Supreme Court of

Florida sought to be reviewed via this petition is reported

as Justus v. State, 438 So.2d 358 (Fla.1938), and is also re-

produced in the appendix. (Al-17)

JURISDICTION OF THE SUPREME COURT

The Supreme Court of Florida issued the opinion and

judgment in this case on September 1, 1983. (Al-17) Petitioner

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

1983. (Al8) Petitioner asserted below and asserts here a de-

privation of his rights as guaranteed under the United States

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

and Rule 17 of the United States Supreme Court Rules ¢onfer

certiorari jurisdiction in this Court to review the judgment

in this case.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Article I, Section 9, of the United States Consti-

tution which in part reads:

No Bill of Attainder or ex post facto Law

shall be passed.

2. Section 921.141, Florida Statutes (1977), which is

set forth in the appendix. (Al19-21).

3. Section 921.141, Florida Statutes (1979). which is

set forth in the appendix. (A22-24)

STATEMENT OF THE CASE

On October 17, 1979, a grand jury in Pasco County,

Florida, indicted Petitioner for first-degree murder, robbery,

kidnapping and sexual battery. (R46-47) (A25-26) At the jury

trial held February 5 through 8, 1980, the state presented the

following evidence. (R651-1713)

she

.

On October 6, 1978, Stephanie Michelle Hawkins, a

wholesale distributor of sunglasses, called upon one of her

customers at a drug store in a Tampa-area shopping center. (Al)

While she was in her van in the parking lot, Petitioner ap-

proached, took over control of the van at gunpoint, and ab-

ducted Ms. Hawkins using her automobile. (Al) Dale Goins,

Petitioner's companion and co-defendant, followed them driving

Petitioner's car. (Al) They drove out into the county and

went down a dirt road in Pasco County. (Al) There, the jury

could have concluded from the evidence, Petitioner raped Ms.

Hawkins and Goins stole sunglasses from her van and put them

in Petitioner's car. (Al-2) Then Petitioner shot the victim

twice in the head, killing her. (Al)

The next day, Petitioner and Goins went to Georgia

where they abducted another woman from a shopping center parking

lot. (A2) They took her to a secluded, outlying area where

Goins committed sexual battery upon her after which Petitioner

shot and killed her. (A2)

Petitioner was subsequently arrested in Virginia. (A2)

After being advised of his fifth amendment rights, Petitioner

confessed to the Georgia and Florida murders. (A2-3) He also

confessed to an earlier murder which had occurred in Virginia.

(A2-3)

In his confession to the Florida murder, Petitioner

said that he picked up the victim in the parking lot of an

Eckerd Drugs store in Tampa. (A3) He drove her van to a bank

so the woman could cash a check and give appellant some money.

(A3) The bank declined to cash her check, so they went to

another Eckerd's where she obtained some cash. (A3) Then they

went out into the country. (A3) Appellant said that he and the

victim engaged in sexual relations with her consent. (A3) Then,

however, she tried to reach for his gun, they struggled, and

the gun discharged, wounding her in the head. (A3) Then he

shot her again and he and Goins left the area. (A3)

-

Upon the conclusion of the trial Petitioner was found ce

guilty as charged. (R308-311) The jury recommended and the

trial judge imposed the death penalty for the murder. (R318,346)

(A27) On the other charges the judge imposed three life sen-

tences, concurrent with each other but consecutive to the death

sentence. (R343-345) In support of the death sentence the trial

judge found two statutory aggravating circumstances: (1) the

murder was committed during the course of a robbery, kidnapping

and sexual battery; and (2) the murder was committed in a cold,

calculated, and premeditated manner without any moral or legal

justification. (R426-428)(A28-30) He found no mitigating cir-

cumstances. (R426-428) (A28-30)

On appeal to the Supreme Court of Florida Petitioner

argued that use of the aggravating factor cold, calculated,

and premeditated without any pretense of moral or legal justi-

fication, which had been added to the capital sentencing law

after his offense but before his trial, violated the federal

ex post facto prohibition. (Al5) The court rejected the argu-

ment. (Al5) It relied on its decision in an earlier case

raising the same issue where it reasoned that the new aggravating

circumstance inures to the benefit of offenders since it limits

use of premeditation as an aggravating factor. (Al5) The court

affirmed Petitioner's convictions and sentences in the judgment

now before this Court. (Al16)

REASONS FOR GRANTING THE WRIT

Florida was one of the first states to enact a new '

death penalty statute after this Court in Furman v. Georgia,

408 U.S. 238 (1972), struck down most of the then existing :

death penalty statutes. And, Florida's new statute was one of

the first approved by this Court. Proffitt v. Florida, 428

lation and because of the frequency with which the death penalty

U.S. 242 (1976). Because of Florida's early, successful legis- 3

:

has been litigated in Florida, the other states have looked to

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Florida in enacting and construing their own statutes. There-

fore, the Supreme Court of Florida's interpretation of any

newly enacted provision of the State's death penalty statute

has importance in other states, as well as Florida.

Prior to 1979 Florida's death penalty statute,

Section 921.141(5), Florida Statutes (1977), provided eight

possible aggravating circumstances, as well as seven possible

mitigating circumstances. Subsection (i) of Section 921.141(5),

Florida Statutes, which became effective July 1, 1979, added

as a ninth aggravating circumstance:

(i) The capital felony was a homicide and was

committed in a cold, calculated, and premedi-

tated manner without any pretence of moral

or legal justification.

Since subsection (i) became effective, the Supreme

Court of Florida has consistently applied it to capital offenders

whose offenses took place before the effective date. See,

Justus v. State, 438 So.2d 358 (Fla.1983); Smith v. State, 424

So.2d 726,733 (Fla.1982), cert.den., _U.S.__, 77 L.Ed.2d 1379

(1983); Combs v. State, 403 So.2d 418,421 (Fla.1981), cert.den.,

456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982). The

Florida court has taken the position that subsection (i) is not

ex post facto because it inures to the benefit of capital of-

fenders. 403 So.2d at 421. The court's reasoning is that

subsection (i) limits use of “premeditation” as an aggravating

factor by adding the requirement tiat in order to consider the

elements of a premeditated murder as an aggravating circumstance

the premeditation must have been cold,calculated and without

any pretense of moral or legal justification. Id.

The court's reasoning is invalid because prior to

1979 Florida's death penalty statute did not list premeditation

as an aggravating circumstance which could be used in sentencing.

See, Section 921.141(5), Florida Statutes (1977). Thus, sub-

section (i) adds a new aggravating circumstance. Although in

Florida the decision to impose death is a weighing process and

% . - 2 Tr. 1 8 _ wine Sad ieee

e 2

not a mere summation of aggravating and mitigating factors,

see, State v. Dixon, 283 So.2d 1 (Fla.1973), cert.den., 416 U.S.

943 (1974), the clear effect of finding the new aggravating

circumstance in any given case will be to increase the likelihood

that death will be imposed. Thus, in a separate opinion in

Combs v. State then Chief Justice Sunberg, joined by Justices

England and McDonald, wrote:

I must confess that it is beyond my powers

of comprehension to understand how the

majority can seriously contend that the

addition of subsection (i) as an aggravating

circumstance “inure[s] to the benefit of a

defendant." 403 So.2d at 422 n.3.

This Court recently stated that whether a retrospective

state criminal statute ameliorates or worsens conditions imposed

by its predecessor is a federal question. Weaver v. Graham, 450

U.S. 24,33 (1980). Petitioner believes that the Supreme Court

of Florida has wrongly decided an important federal issue.

CONCLUSION

For the reasons stated, Petitioner asks this Court to

Respectfully submitted,

\ \

BY: ACH! z

Assistant Public Defender

Chief, Capital Appeals

Hall of Justice Building

455 North Broadway Avenue

Bartow, Florida 33830

(813) 533-1184 or 533-0931

grant a writ of certiorari.

Member Of The Bar Of The United

States Supreme Court

h

~~ OD Ww Hk WwW

Opinion of the Supreme Court of

Florida, Justus v. State

Order denying Petitioner's Motion

for Rehearing

Section 921.141, Florida Statutes (1977)

Section 921.141, Florida Statutes (1979)

Indictment

Judgment and Sentence

Findings in Support of Sentence of Death

\

Al8

Al9

A22

A25

A27

A28

ee

Supreme Court of Floriva

No. $8,912

BUDDY EARL JUSTUS, Appellant,

vs.

STATE OF FLORIDA, Appellee.

{September 1, 1983]

BOYD, J.

This cause is before the Court on appeal from a circuit

court judgment adjudicating appellant guilty of first-degree

murder, robbery, kidnapping, and sexual battery, and sentencing

him to death. We have jurisdiction of the appeal. Art. V,

§ 3(b) (1), Pla. Const.

On October 6, 1978, Stephanie Michelle Hawkins, a

wholesale distributor of sunglasses marketed by Visual Scene,

Inc., called on one of her customers at a drug store in a

Tampa~area shopping center. While she was in her van in the

parking lot, appellant approached, took over control of the van

at gunpoint, and abducted Ms. Hawkins using her automobile. Dale

. Goins, appellant's companion and co-defendant, followed then

driving appellant's car. They ¢rove out into the country and

went down a dirt road in Pasco County. There, the jury could

have concluded from the evidence, appellant raped Ms. Hawkins and

Goins stole sunglasses from her van and put them in appellant's

car. Then appellant shot the victim twice in the head, killing

her.

_ 4 —

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Received By

SEP 0 6 1983

Public Defenders Office

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On the following day, appellant and Goins veat to

Gwinnette County, Georgia, where they abducted another woman from

a shopping center parking lot. They took her to a secluded,

: outlying area where Goins committed sexual battery upon her after

which appellant shot and killed her. They left appellant's car

at the scene and departed in the woman's gold Dodge van, after

removing the license tags from appellant's car.

After the Gwinnette County police discovered the crime

scene, they were able to determine from the vehicle

identification number that the car abandoned there was registered

in New York in appellant's name. They learned that he was free

on bond on a pending robbery charge. They also obtained

appellant's birthdate, height, weight, and the number on the tags

removed from appellant's car. At trial, witnesses who had seen

appellant and Goins in Pasco County identified by photograph the

abandoned car as the car the two men were using in Pasco County.

When discovered in Georgia, appellant's car contained hundreds of

Visual Scene sunglasses.

On October 10, 1978, the Gwinnette County, Georgia, law

enforcement authorities obtained a warrant for appellant's arrest

from a local magistrate. They published a nationwide look-out

bulletin through the National Crime Information Center teletype.

The teletype bulletin included appellant's license tag number and

a description of the Georgia victim's gold Dodge van. The next

day, the Georgia police learned from appellant's former wife that

appellant might have gous to Grundy, Virginia, to visit his

peothars end sisters. Tha- evening, a Virginia state trooper,

having been orally advised of app.'lant’s possible whereabouts

and the warrant for his arrest, went to the boarding school where

appellant's siblings were staying. There he saw the gold Dodge

van bearing appellant's license tag. The officer then located

appellant and arrested him. A Gwinnette County, Georgia,

detective then went to Grundy, Virginia, for the purpose of

questioning appellant. After being advised of his fifth

amendment rights, appellant confessed to rhe Georgia and Florida

AL

marders. He also confessed to an eérlier surder which had

occurred in Virginia. After being convicted of murder in

Virginia, appellant was brought back to Florida for trial on the

charges in the instant case.

The Gwinnette County, Georgia, detective who interrogated

appellant testified at the trial concerning appellant's pre-trial

statement. According to appellant's statement, he picked up the

victim in the parking lot of an Eckerd Drugs store in Tampa. He

Grove her van to a bank so the woman could cash a check and give

appellant some money. The bank declined to cash her check, s0

they went to another Eckerd’s where she obtained some cash. Then

they went out into the country. Appellant said that he and the

victim engaged in sexual relations with her consent. Then,

however, she tried to reach for his gun, they struggled, and the

gun discharged, wounding her in the head. Tnen he shot her again

and he and Goins left the area.

Appellant's pre-trial statement was corroborated in --

certain particulars by the testimony of a bank clerk and an

Eckerd Drugs employee who told of seeing the victim during the

time period when appellant forced her to try to cash a check so

he could‘cob her. ‘There was also testimony that appellant's

fingerprints were found on the door of the victim's van. The.

state also introduced evidence of appellant's confession to the

Georgia murder.

Appellant argues that his confessions should have been

excluded as the products of an illegal arrest. The trial court

found that the affidavit submitted in support of the applicatida_

for the arrest warrant issued in Georgia was insufficient and

that the warrant itself was therefore invalid. The court also

found, however, that there was probable cause for the arrest and

that the arrest was legal without a valid warrant, and therefore

held the confessions admissible. Appellant relies on the case of

Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560

(1971). ‘There a sheriff obtained an arrest warrant based on an

insufficient complaint. A bulletin was sent out and a police

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officer in another county made the arrest and conducted 4 search

incident to the arrest. The search uncovered evidence which was

used in convicting Whiteley. The Supreme Court ordered a new

trial, holding that the products of the search were inadmissible

since there was no probable cause to issue the warrant.

Whiteley is distinguishable from the present case. in

Whiteley the Supreme Court noted that in addition to the fact

that the warrant was not supported by probable cause, there was

no probable cause to justify the arrest itself. In this case,

however, the trial court found and the record shows that the law

enforcement authorities involved in the investigation did in fact

have sufficient information to give them probable cause to

believe that appellant had committed felonies.

In the caBe of Cnited States v. Watson, 423 0.S. 411

(1976), the Court held valid the warrantless arrest of a suspect

in a public place, based upon probable cause to believe the

suspect had committed a felony. The Court said that “there is

nothing in the Court's prior cases indicating that under the

Fourth Amendment a warrant is required to make a valid arrest for

a felony. Indeed the relevant prior decisions are uniformly to

the contrary.” Id. at 416-17. The Court later recognized the

only exception to this general rule, holding a warrant necessary

for entry into the arrestee's home for the purpose of making an

arrest. Payton v. Now York, 445 U.S. 573 (1980).

Yor example, in United States v. Rabinowitz, 339 U.S. 56

(1950), the defendant questioned the legality of his arrest on

the ground of the insufficiency of the warrant to authorize the

arrest. The Court held that the evidence obtained by search

incident to the arrest was admissible since “(e)ven if the

warrant of arrest were not sufficient to authorize the arrest for

possession of the stamps, the arrest therefor was valid because

the officers had probable cause to believe that a felony was

4 being committed in their very presence.” Id. at 60. In a later

case the Court reversed a conviction because the arrest warrant

was not supported by a sufficient finding of probable cause. The

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Court refused to consider the government's argument that the

arrest was justified by probable cause without regard to the

warrant because this argument was being presented for the first

time on appeal. The Court added, “This is not to say, however,

that in the event of a new trial the Government may not seek to

justify petitioner's arrest without relying on the warrant.”

Giordenello v. United States, 357 U.S. 480, 488 (1958).

Similarly, in the present case, after finding the warrant

itself invalid, the court was correct in looking at the factual

basis supporting the officers’ determination that they had

probable cause for arrest. Appellant argues that the trial court

should have held that the invalidity of the warrant was

determinative of the legality of the arrest. He cites Orr v.

State, 382 So.2d 860 (Fla. lst DCA 1980), where the court applied

the rule that a magistrate should only consider the supporting

affidavit when issuing a warrant. In the present case, however,

we are not concerned with the question of whether the warrant was

valid--the trial court found that it was not--but with whether

there was probable cause to make the arrest without a warrant.

Since the validity of the warrant was thus irrelevant, there was

no reason for the court to limit itself to the information in the

supporting affidavit when deciding whether there was probable

cause for the arrest.

There is an abundance of evidence to support the trial

court's finding that there was probable cause to arrest

appellant. The Gwinnette County, Georgia, police had been told

that on the day of the Georgia murder two men were seen sitting

in a car in the parking lot of a grocery store near the shopping

center where the victim was abducted. The grocer became

suspicious, wrote down the license plate number, and described

the car to the police. - The description fit that of the car later

found at the scene where the victim's body was discovered. The

police learned that the license number was issued in appellant's

name. The vehicle identification number of the abandoned car

(from which the plates had been removed) also revealed that the

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car was registered in appellant's name. When the Virginia state

patrol offices, acting on further information as to appellant's

possible location, went to the school in Grundy, Virginia, he

found the victim's van bearing appellant's license tag parked

outside the building in which he found appellant. The cumulative

information constituted probable cause and went far beyond the

showing initially provided to the Georgia magistrate in support

of the arrest warrant. In deciding whether there was probable

cause for the arrest, the trial court was authorized to consider

all of the collective knowledge and information of all of the

officers involved in the investigation. See, e.g., United States

v. Agostino, 608 F.2d 1035 (Sth Cir. 1979); United States v- _

Rose, $41 F.2d 750 (8th Cir. 1976), cert. denied, 430 U.S. 908

(1977); State v. Thornton, 300 N.W.2d 94 (Iowa 1981).

The Gwinnette County, Georgia, police officers had

information amountiug to reasonable and probable cause to believe

that appellant had committed kidnapping, robbery, and murder.

The usual rule is that a police officer may arrest

without warrant one believed by the officer upon

reasonable cause to have been guilty of a felony, and

that he may only arrest without a warrant one guilty

of a misdemeanor if committed in his presence. Kurtz

v. Moffitt, 11S U.S. 437; Elk v. United States,

Cs. 525. An i dl « en a Ba

The reason for arrest for misdemeanors without

reliable

public safety and the due apprehension of criminals

charged with heinous offenses required that such

arrests should be made at once without warrant.

Rohan v. Sawin, 5 Cush. 281 (Mass. 1851).

Carroll v. United States, 267 U.S. 132, 156-57 (1925). i, al a ee

were to be authoritatively held that under the fourth amendment

warrantless felony arrests based on probable cause must be

further justified by the existence of exigent circumstances, see

United States v. Watson, 423 U.S. at 433-35 (Marshall, J.,

dissenting), which it has not, this case would satisfy such a

criterion. Appellant, whom police had probable cause to believe

had committed kidnapping, robbery, and murder, was at large,

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moving from place to place on the highways by automobile. This

situation demanded direct and immediate action by the police.

Had thoy not acted when they had information about appellant's

whereabouts, he might have escaped arrest and prosecution

forever.

We therefore hold that the arrest did not contravene

appellant's fourth amendment rights, despite the invalid warrant,

because there was probable cause to make 4 warrantless arrest

outsids his residence. See, e.g., Chrisman v- Pield, 448 F.2d

17S. (9th Cir. 1971), cert. denied, 409 0.S. @SS (1972); United

States ex rel. Johnson v. Rundle, 404 P.24 42 (34 Cir. 1968), _.

cert. denied, 395 U.S. 937 (1969); United States v- White, 342_

F.24 379 (4th Cir.), cert. denied, 382 U.S. 871 (1965); Hagans v.

United States, 315 F.2d 67 (Sth Cir.), cert. denied, 375 U.S. 826

(1963). We therefore need not concern ourselves with the

question of whether the interrogation procedures used were

sufficient to sever any connection between the circumstances of

the arrest and appellant's confession since the arrest was

unquestionably legal. See State v. Ladd, 431 A.2d 60 (Me.),

cert. denied, 454 U.S. 1101 (1981). The statements were properly

admitted into evidence. .

Appellant also separately argues that his confession to

the Georgia murder should not have been admitted into evidence

because it was not relevant to any issue in the trial of the

Plorida crimes and was highly prejudicial. However, the evidence

of this subsequent murder was relevant “by showing motive,

intent, absence of mistake, common scheme, identity or a system

or general pattern of criminality.” ‘ williams v. State, 110 So.2d

654, 662 (Fla.), cert. denied, 361 U.S. 847 (1959). In his

confession to the Florida murder, appellant claimed that the

first shot fired into Ms. Hawkins’ head was accidental, having

occurred when she reached for his gun, and that he fired the

second shot to put her out of her misery. The evidence of the

Georgia murder was relevant through similarity to raise the

inference that the Florida murder was not accidental but was

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fully intentional. _We therefore hola that the testimony about

appellant's confession to the Georgia murder was relevant and

admissible. ‘

Appellant also challenges the trial court's admission of

the tape recording of his confession into evidence. At trial,

first the state called as a witness a police officer who was

present at the confession to testify to appellant's statements.

The defense objected on the ground that since the statements were

recorded, the tape recording itself was the best evidence of what

had been said. When the state sought to introduce the recording

itself, the defense objected on the ground that a proper

predicate for its admission had not been laid, arguing that the

requirements of Parnell v. State, 218 So.2d $35 (Fla. 3d DCA

1969), had not been satisfied. The trial court ruled that the

defense had waived these requirements by invoking the best

evidence rule.

Although we disagree with the court's holding that 4 party

waives its right to have a tape recording authenticated when it

objects to testimony on the ground of the best evidence rule, we

find that the recording was properly admitted. The best evidence

rule is codified as section 90.952, Florida Statutes (1981),

which provides: “Except as otherwise provided by statute, an

original writing, recording,or photograph is required in order to

prove the contents of the writing, recording, or photograph.” By

demending that the best evidence rule be observed (we state no

position on whether appellant's objection was well-grounded in

the best evidence rule) a defendant does not automatically

concede that the tape to be introduced by the state is authentic.

The best evidence rule and the requirement that tape recordings

be authenticated are not correlative as conceived by the trial

court but are separate and independent rules of evidence, each

with its own scope and purpose. The invocation of the best

evidence rule cannot, therefore, be deemed a waiver of the

defendant's right that the tape introduced into evidence be

authenticated.

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all *

Here the tape recording was acthenticated and was

therefore properly admitted. The laying of the predicate

requires “evidence sufficient to support a finding that the .

matter in question is what its proponent claims.” § 90.901, Fla.

Stat. (1981). In determining whether the evidence submitted is

sufficient for this purpose, the trial judge must evaluate each

instance on its own merits, there being no specific list of

requirements for such a determination. Unless clearly erroneous,

the trial court's determination will be sustained. Here one of

the police detectives present at the confession identified the

tapes and testified that he and another detective operated the

tape recorder and that as each of the three tapes was finished he ‘

punched out little tabs on them which would prevent them from

being erased, recorded over or changed. He also testified that

the portions of the tapes to which he had listened accurately

represented what had been said during the interview of appellant.

This showing was sufficient to establish that the tapes were what . --

the state claimed them to be.

Appellant argues that the trial judge improperly limited

the scope of defense counsel's cross examination of a witness for

the state. The defense asked one of the crime scene

investigators how well he thought the crime scane investigation

had been performed. After listening to defense counsel's proffer

the court ruled that the witness's answers were irrelevant. We

find there has been no clear abuse of the trial court's

discretion in limiting this line of cross examination. See

Sireci v. State, 399 So.2d 964 (Fla. 1981), cert. denied, 456 nm

U.S. 984 (1982).

n Appellant contends that the trial court made two erroneous

rulings on discovery. The first ruling pertained to some police

) officers’ written investigative reports. During the week before

trial the court granted the defendant's motion to compel the

production of these reports and conducted an in-camera

inspection. Three days later, on the day before commencement of

the trial, the prosecutor called defense counsel and notified his

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of their availability. ‘Two days later, after jury selection had

begun, defense ecunsel obtained the reports. When defense

counsel objected to the state's tardiness in’ providing the

reports, the court ruled that the objection would be denied

unless the defense could show that there was something in the

reports specifically contrary to the testimony of the officers.

Appellant argues that there was a discovery violaticn and the

court should have conducted a full inquiry pursuant to Richardson

v. State, 246 So.2d 771 (Fla. 1971). ‘The record shows, however,

that the trial judge declined to find that there was a discovery

violation, and that therefore under his ruling no Richardson

hearing was required. A trial judge has broad discretion in

determining whether the state has acted in-good faith by making

timely disclosure of material ordered by the court to be

provided. Belcer v. State, 171 So.2d 574 (Fla. lst DCA), cert.

denied, 176 So.2d $10 (Fla. 1965). There was no abuse of +

discretion here.

The second discovery ruling appellant complains of had to

do with certain written statements of appellant held by the state

which were not timely provided to the defense. As a sanction,

defense counsel asked that the officers who had possession of the

statements not be allowed to testify. The court found that there

had been a violation and agreed to hold an evening-session

Richardson hearing. In order that the trial might proceed,

however, the judge allowed the officers to testify, stating that

if the Richardson hearing revealed prejudice, he would declare a

mistrial. After the hearing, the court found there was nothing

in the statements not already known to the defense and therefore

held there was no prejudice flowing from the discovery violation.

Appellant argues that the judge should have conducted the inquiry

before allowing the officers to testify and that by delaying the

hearing the court became biased against a finding of prejudice

which would have necessitated a mistrial. Since the inquiry was

made that very night, however, and not after return of a verdict,

this case does not fall within the doctrine of Smith v. State.

-10- RIlO

*~

C

372 So.24 86 (Fla. 1979), and Wilcox v. State, 367 So.2a 1020

(Pla. 1979), pertaining to the timeliness of Richardson

inquiries. We do not believe the court pre-judged the inquiry

into the circumstances of the discovery violation. Moreover, we

uphold the judge's findings that the withheld information was

cumulative and non-prejudicial, since appellant has not shown

them to have been erroneous. See Cooper v. State, 336 So.2d 1133

(Pla. 1976), cert. denied, 431 U.S. 925 (1977).

Appellant argues that the court erred in denying his

motion for mistrial when, during the testimony of the victin's

grandmother, the prosecutor showed her a photograph of the dead

body of the deceased, with the result that the witness broke down

and wept. Appellant contends that this introduced an unnecessary

emotional element to the trial, with improper prejudice to

hinself. We have recognized that “a member of a murder victin's

family may not testify for the purpose of identification of the

deceased where a nonrelated witness is available to provide such

identification." Lewis v. State, 377 So.2d 640, 643 (Fla. 1979).

The rule is designed to avoid the potential of prejudice due to

jurors’ sympathy for the victin’s family. In this case the

witness was called to testify that her granddaughter, who lived

with her, possessed hundreds of sunglasses when she left home in

the morning and that her granddaughter intended to return home

early that day because of the pet dog the granddaughter had just

purchased as a gift for her son. This was relevant information

not available from any other witness. There was no error in

allowing the grandmother to testify. This was not identification

testimony; the familial relationship was properly brought before

the jury. However, because the witness was not needed for

identification testimony, we agree with appellant that there was

no need for the state's counsel to display to the grandmother «

picture of her granddaughter‘s body. The only possible prejudice

was caused by this act, and not by allowing the witness to give

the relevant information referred to above. Appellant

characterizes the grandmother's reaction as an emotional

on All

— eee

outburst, while the state asserts that she sobbed briefly and

quickly regained her composur?. Unfortunately we cannot glean

from the record how intense the response was nor the degree to

which it may have affected the jury. Since the trial judge was

present we defer to his judgment. He found that the reaction was

not of such intensity as to require a mistrial, and appellant has

not shown from the record that the judge's determination was

clearly erroneous. We therefore hold that the impropriety was

harmless. See Scott v. State, 256 So.2d 19 (Pla. 4th DCA 1971).

The appellant also challenges the denial of defense

counsel's motion for mistrial at another point in the

proceedings. During the selection of the jury, the court ordered

a recess. The record indicates that at this time the bailiff

said, “Everyone rise and keep your places.” Appellant argues

that the manner in which this was said depicted him as a

dangerous person and was prejudicial. Appellant's counsel raised

the matter in the judge's chambers before court reconvened, and

argued for a mistrial as follows:

MR. MANDER: Your Honor, as we were about to

break, the jury was not excused prior to your being

exited from the courtroom and Mr. Jackson announced

all rise and then kind of startled me too, but all of

a sudden he said, everybody stay in your places. He

i

said it very loud and very authoritative and the

twelve members of the prospective jury were still

s in the jury box. The courtroom both

ee. Ive never seen Mr. Jackson do it that way.

we's always held them until afterward. It had to

cause everybody in the courtroom to turn to look at

Justus and he was escorted down there like he was a

dangerous person.

THE COURT: What do you recommend?

MR. MANDER: I'd move for a mistrial.

THE COURT: Motion is denied, Mr. Mander.

After denying the motion, the judge ordered that in the future

the defendant be allowed to remain seated until after the

courtroom was cleared. Since the asserted impropriety occurred

during voir dire examination, defense counsel could have queried

the prospective jurors about whether they were affected by the

be Ain

ie a

bailiff’s remark and conduct. Counsel could also have asked for

@ curative instruction to the prospective jurors. By failing to

do so, defense counsel waived any impropriety and thus the point

is not properly preserved for appeal. The impropriety, if indeed

there was any, could have been corrected at the time by some

curative measure. Moreover appellant cannot demonstrate from the

record that the denial of the motion for mistrial was an abuse of

discretion.

With regard to his kidnapping and sexual battery

convictions, appellant argues that his pre-trial statements

should not have been admitted as evidence on the kidnapping and

sexual battery charges since at that time the corpus delecti of

these two offenses had not been proved. This argument is refuted

by reference to testimony that Ms. Hawkins was found miles away

from the store at which she had intended to deliver sunglasses,

that she was the victia of deadly force, and that expert

serological analysis showed she was also the victim of a sexual

assault. Substantial evidence showed each element of the crimes

charged, so the corpus delecti of each was established. See

State v. Allen, 335 So.2d4 823 (Pla. 1976). a

With regard to the kidnapping conviction, appellant argues

that the trial court erred in refusing to dismiss the kidnapping

count of the indictment. Appellant was charged with violating

section 787.01(1) (a), Plorida Statutes (1977), which provides:

(1)(a) “Kidnapping” means forcibly, secretly,

or by threat confining, abducting, or impri

1. Bold for ransom or reward or as a shield or

hostage. ;

2. Commit or facilitate commission of any

felony.

3. Inflict bodily harm upon or to terrorize the

victim or another °

4. Interfere with the performance of any

governmental or political function.

We understand the four clauses pertaining to criminal intent to

be set out disjunctively, so that there are four alternative

means by which one can form the intent to commit kidnapping.

Appellant was charged under clause (1) (a)2. In relevant part the

at Ai3

indictment alleged that appellant ©

did, without lawful authority, forcibly, secretly, or

by threat, kidnap, confine, abduct, or imprison

Stephanie Michelle Hawkins, against the will of the

said Stephanie Michelle Hawkins, with the intent to

commit or facilitate commission of any felony.

Appellant argues that the kidnapping charge was defective in that

it did not allege the specific felony that the accused intended

to commit by means of the kidnapping. We disagree. After

denying the motion to dismiss, the court ordered the state to

specify the crime intended by & statement of particulars. The

state complied, averring that appellant kidnapped the victim with

intent to rob her. Appellant has cited so authority, and we have

found none, for the proposition that the specific felony intended

to be committed or facilitated is an essential element of the

offense proscribed by section 787.01(1) (a)2 and must be alleged.

Here the indictment specified which of the four alternative kinds

of criminal intent listed in the statute appellant acted with

when he abducted the victiz. We do not read Goins v. state, 406

So.24 1199 (Fla. 24 DCA 1981), and Jones v. State, 38S So.2d 1042

(Pla. 1st DCA 1986), as being based on a per se rule that a

charge of kidnapping under section 787.01(1) (a)2 must set forth

the specific felony which the accused intended to commit or

facilitate by means of the kidnapping. Those cases held that

charging documents omitting such specification should have been

dismissed because they were “so vague, indistinct and indefinite

as to mislead the accused and embarrass him in the preparation of

his defense." Fla. R. Crim. P. 3.140(0). To the extent that

Goins and Jones held that the specific felony intended must __.

always be particularly alleged in the indictment or information,

they are disapproved. Bere any vagueness was remedied by the

statement of particulars and appellant was fully apprised of the

charge. .

We come now to consideration of asserted errors during the

sentencing phase of the trial. At the sentencing hearing the

state sought to introduce appellant's confession to and

conviction of the crime of first-degree murder that occurred in

al Aly

Virginia. The court excluded the documentary evidence of the

actual conviction on the ground that it was still on appeal. The

court allowed, however, testimony of appellant's confession to

that murder, on the ground that it was relevant to appellant's

character. Appellant argues that this was error in that the

purpose of such evidence was to show a significant history of

prior criminal activity, which is not a statutory aggravating

circumstance. See Mikenas v. State, 367 So.2d 606 (Pla. 1978).

However, this Court has approved admission of testimony giving

the details of a separate crime of violence where the defendant

has been convicted of that crime. Elledge v. State, 346 So.2d

998 (Pla. 1977). Sere the court’s only error was in excluding

appellant's conviction from consideration on the ground that it

was being appealed. See Ruffin v. State, 397 $o.24 277 (Pla.),

cert. denied, 454 0.S. 882 (1961); Peek v. State, 395 So.2d 492 4

(Pla. 1980), cert. denied, 451 0.S. 964 (1981).

Appellant argues that the court gave an erroneous

instruction to the jury on the consideration of mitigating

circumstances. The record shows that the court gave the standard

instruction on this matter. The instruction given was approved

in Peek v. State. There was no error.

Appellant argues that the court erred in finding as an

aggravating circumstance that the murder was committed in a cold,

calculated, and premeditated manner without pretense of moral or

legal justification under section 921.141(5) (i), Plorida Statutes

(1979). This subsection was added to the capital felony

sentencing law after the murder in this case but before

appellant's trial. Ch. 79-353, Laws of Fla. We held in Combs v-

State, 403 So.24 418 (Pla. 1981), cert. denied, 456 U.S. 984

(1982), that this statutory aggravating circumstance could be

retroactively applied since we found that it did not change the

substance of the sentencing law to the detriment of capital

offenders. Sere appellant argues that retroactive application of

the provision violates article X, section 9 of the Florida

Constitution, which provides: “Repeal or amendment of a criminal

baie AIS

” . la: : C t

Statute shall not affect prosecution or punishment for any crime

previously committed." We find this argument to be without

merit. Dobbert v. State, 375 So.24 1069 (Pia. 1979), cert.

denied, 447 U.s. 912 (1960).

At the sentencing hearing, appellant testified in his own

behalf. The jury recommendation was for a sentence of death. In

addition to the “cold and calculated” circumstance discussed

above, the court found that the Capital felony was committed in

connection with the crimes of robbery, rape, and kidnapping under

section 921.141(5)(4). Thus there are two valid statutory

aggravating circumstances to be weighed against the nonexistence

of any mitigating factors. In such a case death is presumed to

be the proper punishment. State v. Dixon, 283 So.2d4 1 (Pla.

1973), cert. denied, 416 U.s. 943 (1974). Moreover the Virginia

ry murder, which the judge did not explicitly consider, could and

should have been considered. Under these circumstances we are

convinced that the result reached is proper under the law.

-We affirm the convictions of first-degree murder,

kidnapping, robbery, and sexual battery. We affirm the sentence

of death.

It is so ordered.

ALDERMAN, C.J., ADKINS, OVERTON and McDONALD, JJ., Concur

PILED, DETERMINED.

’~

-16-

Alb

An Appeal from the Circuit Court in and for Pasco County,

Wayne L. Cobb, Judge - Case No. 7800884CPAES

Jerry Hill, Public Defender and David A. Davis, Assistant

Public Defender, Tenth Judicial Circuit, Bartow, Florida; and

Albert Rosebury Mander, III, Dade City, Florida,

for Appellant

Jim Smith, Attorney General and Michael A. Palecki, Assistant —

Attorney General, Tampa, Florida,

for Appellee

| — ee os

BUDDY EARL JUSTUS, oS

Appellant, ** CASE NO. 58,912 \

vs. os Circuit Court Case No.

7800884CPAES

STATE OF FLORIDA, at (Pasco)

Appellee. ee

On consideration of the motion for rehearing filed by

attorneys for appellant,

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

same is hereby denied.

; y ?

UGI ~ ye

A True Copy c

cc: Hon. Joseph E. Pittman, Clerk

TEST: Hon. Wayne L. Cobb, Judge

~ a-J. Stake squire

Albert ury Mander, III, Esquire

Sid J. White Michael A. Palecki, Esquire

Clerk Supreme Court

Al’

SECTION 921.141, FLORIDA STATUTES (1977)

Sentence of death or life imprisonment for

capital felonies; further proceedings to

determine sentence. --

(1) SEPARATE PROCEEDINGS ON ISSUE OF

PENALTY.--Upon conviction or adjudication

of guilt of a defendant of a capital felony,

the court shall conduct a separate sentencing

proceed to determine whether the defen-

dant should be sentenced to death or life

imprisonment as authorized by s.775.082.

The proceeding shall be conducted by the

trial judge before the trial jury as soon as

practicable. If, through impossibility or

inability, the trial jury is unable to re-

convene for a hearing on the issue of penalty,

having determined the guilt of the accused,

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. If the trial jury has been waived,

or if the defendant pleaded guilty, the sen-

tencing dept be 5 shall be conducted before

a jury impaneled for that purpose, unless

waived by the defendant. In the proceeding,

evidence may be presented as to any matter

that the court deems relevant to sentence,

and shall include matters relating to

any of the aggravating or mitigating circum-

stances enumerated in subsections (5) and (6).

Any such evidence which the court deems to

have probative value may be received, regard-

less of its admissibility under the exclu-

sionary rules of evidence, provided the

defendant is accorded a fair opportunity to

rebut any hearsay statements. However, this

subsection shall not be construed to authorize

the introduction of any evidence secured, in

violation of the constitutions of the United

States or of the State of Florida. The state

and the defendant or his counsel shall be

permitted to present argument for or against

sentence of death.

(2) ADVISORY SENTENCE BY THE JURY.-- After

hearing all the evidence, the jury shall de-

liberate and render an advisory sentence to

the court based upon the following matters:

(a) Whether sufficient aggravating circum-

stances exist as enumerated in subsection (5);

(b) Whether sufficient mitigating circun-

stances exist as enumerated in subsection (6),

which outweigh the aggravating circumstances |

found to exist; and : |

(c) Based on these considerations, whether |

the defendant should be sentenced to life |

imprisonment or death.

(3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH. --

Notwithstand the recommendation of a majority

of the jury, the court, after weighing the i

gravating and rege ga circumstances, shal |

enter a sentence of life imprisonment or death, |

but if the court — a sentence of death, .

it shall set forth in praia findings upon

bee the sentence of death the

acts:

based as to

(a) That sufficient aggravating circumstances

exist as enumerated in subsection (5), and

(b) That there are insufficient mitigatin

circumstances, as enumerated in subsection %6),

to outweigh the aggravating circumstances.

In each case in which the court imposes the

death sentence, the determination of the court

shall be supported by specific written findings

of fact based upon the circumstances in sub-

sections (5) and (6) and upon the records of

the trial and the sentencing proceedings. If

the court does not make the findings requiring

the death sentence, the court shall impose

sentence of life imprisonment in accordance

with s.775.082.

(4) REVIEW OF JUDGMENT AND SENTENCE. --The

judgment of conviction and sentence of death

shall be subject to automatic review by the

Supreme Court of Florida within 60 days after

certification by the sentencing court of the

entire record, unless the time is extended for

an additional period not to exceed 30 days by

the Supreme Court for good cause shown. Such

review by the Supreme Court shall have priority

over all other cases and shall be heard in ac-

cordance with rules promulgated by the supreme

court.

(5) AGGRAVATING CIRCUMSTANCES. --Aggravating

circumstances shall be limited to the following:

(a) The capital felony was committed by a

erson under sentence of imprisonment.

(b) The defendant was previously convicted of

another capital felony or of a felony involving

the use or threat of violence to the person.

(c) The defendant knowingly created a great

risk of death to many persons.

(d) The capital felony was committed while

the defendant was engaged, or was an accomplice,

in the commission of, or an attempt to commit,

or flight after committing or “tones to com-

mit, any robbery, rape, arson, burglary, kidnap-

ping, or aircraft piracy or the unlawful throwing,

tag mons or discharging of a destructive device

or bomb.

(e) The capital felony was committed for the

purpose of avoiding or preventing a lawful

arrest or ae an escape from custody.

(f) The capital felony was committed for pe-

cuniary gain.

. (g) The capital felony was committed to disrupt

or hinder the lawful exercise of any governmental

function or the enforcement of laws.

(h) The capital felony was especially heinous,

atrocious, or cruel.

(6) MITIGATING CIRCUMSTANCES.--Mitigating cir-

cumstances shall be the riage 9

(a) The defendant has no signi

of prior criminal activity.

&) The capital felony was committed while

the defendant was under the influence of ex-

treme mental or emotional disturbance.

(c) The victim was a participant in the defen-

dant's conduct or consented to the act.

(d) The defendant was an ac lice in the

capital felony committed by anot person

and his participation was relatively minor. 420

icant history

(e) The defendant acted under extreme duress

or under the substantial domination of another

person.

(£) The capacity of the defenant to appre-

ciate the criminality of his conduct or to

conform his conduct to the re uirements of

law was substantially impaired.

(g) The age of the defendant at the time of

the crime.

AA

SECTION 921.141, FLORIDA STATUTES (1979)

Sentence of death or life imprisonment for

capital felonies; further proceediags to

determine sentence. -~--

(1) SEPARATE PROCEEDINGS ON ISSUE OF

PENALTY.--Upon conviction or adjudication

of guilt of a defendant of a capital felony,

the court shall conduct a separate sentencing

proceeding to determine whether the defen-

dant should be sentenced to death or life

imprisonment as autha@tized by s.775.082.

The proceeding shall be conducted by the

trial judge before the trial jury as soon as

practicable. If, through impossibility or

inability, the trial jury is unable to re-

convene for a hearing on the issue of penalty,

having determined the guilt of the accused,

the trial judge may summon a4 special juror

or jurors as provided in chapter 913 to deter-

mine the issue of the ‘position of the

penalty. If the triai jury has been waived,

or if the defendant pleaded guilty, the sen-

tencing proceeding shall be conducted before

a jury impaneled for that purpose, unless

waived by the defendant. In the proceeding,

evidence may be presented as to any matter

that the court deems relevant to the nature

of the crime and the character of the defen-

dant and shall include matters relating to

any of the aggravating or mitigating circum-

stances enumerated in subsections (5) and (6).

Any such evidence which the court deems to

have probative value may be received, regard-

less of its admissibility under the exclu-

sionary rules of evidence, provided the

defendant is accorded a fair opportunity to

rebut any hearsay statements. However, this

subsection shall not be construed to authorize

the introduction of any evidence secured in

violation of the Constitution of the United

States or the Constitution of the State of

Florida. The state and the defendant or his

counsel shall be permitted to present argument

for or against sentence of death.

(2) ADVISORY SENTENCE BY THE JURY.-- After

hearing all the evidence, the jury shall de-

liberate and render an advisory sentence to

the court based upon the following matters:

(a) Whether sufficient aggravating circum-

stances exist as enumerated in subsection (5);

(b) Whether sufficient mitigating circum-

stances exist which outweigh the aggravating

circumstances found to exist; and

(c) Based on these considerations, whether

the defendant should be sentenced to life

imprisonment or death.

(3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH. --~-

Notwithstanding the recommendation of a majority

of the jury, the court, after weighing the ag-

gravating and miti ting circumstances, shall

enter a sentence of life imprisonment or death,

but if the court imposes a sentence of death,

it shall set forth in writ its findings —

which the sentence of death is based as to t

facts: : P

12.2.

“3g iat ate oe ee 5 ads Cate a 7” mee a ae es. ci a agua E

(a) That sufficient aggravating circumstances

exist as enumerated in subsection (5), and

(b) That there are insufficient mitigating

circumstances to outweigh the aggravating cir-

cumstances.

In each case in which the court imposes the

death sentence, the determination of the court

shall be supported by specific written findings

of fact based upon the circumstances in sub-

sections (5) and (6) and upon the records of

the trial and the sentencing proceedings. If

the court does not make the findings requiring

the death sentence, the court shalt impose

sentence of life imprisonment in accordance

with s.775.082.

(4) REVIEW OF JUDGMENT AND SENTENCE. --The

judgment of conviction and sentence of death

shall be subject to automatic review by the

Supreme Court of Florida within 60 days after

certification by the sentencing court of the

entire record, unless the time is extended for

an additional period not to exceed 30 days by

the Supreme Court for good cause shown. Such

review by the Supreme Court shall have priority

over all other cases and shall be heard in ac-

cordance with rules promulgated by the supreme

court.

(5) AGGRAVATING CIRCUMSTANCES. --Aggravating

circumstances shall be limited to the following:

(a) The capital felony was committed by a

person under sentence of imprisonment.

(b) The defendant was previously convicted of

another capital felony or of a felony involving

the use or threat of violence to the person.

(c) The defendant knowingly created a great

risk of death to many persons.

(d) The capital felony was committed while

the defendant was engaged, or was an accomplice,

in the commission of, or an attempt to commit,

or flight after committing or attempting to com-

mit, any robbery, rape, arson, burglary, kidnap-

ping, or aircraft piracy or the wataatel throwing,

placing, or discharging of a destructive device

or bomb.

(e) The capital felony was committed for the

purpose of avoiding or preventing a lawful

arrest or effecting an escape from custody.

(f) The capital felony was committed for pe-

cuniary gain.

(g) The capital felony was committed to disrupt

or hinder the lawful exercise of any governmental

function or the enforcement of laws.

(h) The capital felony was especially heinous,

atrocious, or cruel.

(i) The capital felony was a homicide and was

committed in a cold, calculated, and premedi-

tated manner without any pretense of moral or

legal justification. °

6) MITIGATING CIRCUMSTANCES. --Mitigating cir-

cumstances shall be the following:

(a) The defendant has no significent history

of prior criminal activity.

) The capital felony was committed while

the defendant was under the influence of ex-

treme mental or emotional disturbance.

(c) The victim was a participant in the defen-

dant's conduct or consented to the act.

(d) The defendant was an accomplice in the

capital felony committed by another person

and his participation was relatively minor.

(e) The defendant acted under extreme duress

or under the substantial domination of another

person.

(f) The capacity of the defenant to appre-

ciate the criminality of his conduct or to

conform his conduct to the requirements of

law was substantially impaired.

(g) The age of the defendant at the time of

the crime.

A2r4

f c FILED IN OFEIi CCURT

INDICTMENT aad alk THIS ZObay OF Qitebe, , 18

o* 9 Jed

In the Circuit Court for '. dicial cireutt Leghhedic bled

in and for rusco County

PALL TERM, ip the year of our Lord one thousand nine hundred seventy-eight

CF78- 884 -A-Ol

CP78- 884 -B-0l

THE STATE OF FLORIDA )

pe ) INDICTMENT FOR

7 ) I. MURDER IN THE PIRST DEGREE

f353 A) BUDDY EARL JUSTUS; ) II. KIDNAPING

3.2/ 8B) DALE DEAN GOINS III. ROBBERY

) IV. INVOLUNTARY SEXUAL BATTERY

)

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA:

The Grand Jurors of the State of Florida, impaneled and sworn to inquire and true

charge make in and for the body of the County of Pasco, upon their oath do charge that

BUDDY EARL JUSTUS and DALE DEAN GOINS

of the County of Pasco and State of Florida, on the 6th day of October

in the year of our Lord, one thousand nine hundred seventy-eight in the County and

State aforesaid unlawfully and from a premeditated design to effect the

death of Stephanie Michelle Hawkins, a human being, did shoot the said

Stephanie Michelle Hawkins with a gun, thereby inflicting upon the said

Stephanie Michelle Hawkins mortal wounds, of which said norte? wounds,

and by the means aforesaid and as a direct result thereof, the said

Stephanie Michelle Hawkins died; contrary to Chapter 782.04(1) (aj), Plorida

Statutes, and against the peace and dignity of the State of Plorida.

COUNT TWO

And the Grand Jurors of the State of Plorida, impaneled and sworn to in-

quire and true charge make in and for the body of the County of Pasco,

upon their oath do charge that BUDDY EARL JUSTUS and DALE DEAN GOINS of

the County of Pasco and State of Florida, on the 6th day of October, in

the year of our Lord, one thousand eat hundred seventy-eight in the County

of Pasco and in the County of Hillsborough in the State aforesaid did,

without lawful authority, forcibly, secretly, or by threat, kidnap, confine,

abduct, or imprison Stephanie Michelle Hawkins, against the will of the

And the Grand Jurors of the State of Florida, impaneled and sworn to in-

quire and true charge make in and for the body of the County of Pasco,

upon their oath do charge that BUDDY EARL JUSTUS and DALE DEAN GOINS of

the County of Pasco and State of Florida, on the 6th day of October, in

the year of our Lord, one thousand nine hundred seventy-eight in the County

and State aforesaid did, by force, violence, or assaulting, or putting

Stephanie Michelle Hawkins in fear, willfully and against the will of

Stephanie Michelle Hawkins, take money or other property from the person

or custody of the said Stephanie Michelle Hawkins, to-wit: personal prop- ,

erty, the subject of theft, with the intent to unlawfully and permanently

deprive the said Stephanie Michelle Hawkins of possession or custody there-

of, the said Stephanie Michelle Hawkins being lawfully entitled to posta

ion thereof, and during the course of the aforesaid offense the said BUDDY

EARL JUSTUS and DALE DEAN GOINS did carry a deadly weapon, to-wit: a fire-

arm; contrary to Chapter 812.13(2) (a), Florida Statutes, and against the

peace and dignity of the State of Plorida.

COUNT _ FOUR

And the Grand Jurors of the State of Florida, impaneled and sworn to in-

quire and true charge make in and for the body of the County of Pasco,

upon their oath do charge that BUDDY EARL JUSTUS and DALE DEAN GOINS of

the County of Pasco’ and State of Plorida, on the 6th day of October, in

the year of our Lord, one thousand nine hundred seventy-eight in the County

and State aforesaid did commit a sexual battery upon Stephanie Michelle

Hawkins, to-wit: by inserting the penis of the said BUDDY EARL JUSTUS

into the vagina of the said Stephanie Michelle Hawkins, while coercing

the said Stephanie Michelle Hawkins to submit to said sexual battery by

threatening to use force or violence on the said Stephanie Michelle Hawkins

likely to cause serious personal injury, and the said Stephanie Michelle

Hawkins reasonably believed that BUDDY EARL JUSTUS and DALE DEAN GOINS —

** pad the present ability to execute said threats; Aide =

rs ze _ 38

IN THE _CIRCUIT COURT OF THE SIXTH

JUDICIAL CIRCUIT IN AND FOR PASCO COUNTY

FLORIDA.

case numBer __CF’7¢-S%-

STATE OF FLORIDA SPN#4333

VS. JUDGMENT AND SENTENCE

BUDDY EARL JUSTUS

You, BUDDY EARL JUSTUS being now before

the Court, attended by your attorney, A. R. MANDER and

you having (1) been tried and found guilty of CO a ET

to _CT,. 1. MURDER IN THE FIRST DEGREE

CTE EYES ET imprisoned forS a “term of

the Court Adjudges that you are guill¥ 5f said offense, and it is the Sentence of the Law and t

the Court that you, BUDDY EARL JUSTUS

oO ‘-_

,.be committed to the custody of the (1) Dep o

CORRECTION =

ail awaiting

disposition of case

and you are further Ordered to pay a fine and cost in the amount of Ss

<< Pasco County, Florida,

DONE and ADJUDGED in open Court at_)DADE CITY

this the 26th day of _ FEBRUARY _ 19_80_ , pursuant’ to Rules 3.670 and 3.700 FERP.

DE Kea

(Fingerprints, if required by SectiapX@0XH Florida Statutes)

4 FINGERS TAKIN SIMULTANEOUSLY LLET THUMB RIGHT THUMB 4 FINGERS TAKEN SIMULTANLOUSLY

I hereby certify that the above and foregoing fingerprints on this judgment are the Fingerprints of the

defendant BUDDY EARL JUSTUS 4

that they were placed thereon by said defendant in my presence, in open this the

n .812.014(2)d

heer

. Pec as

Ee IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT A

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY

CF78-884

“apr 135%

STATE OF FLORIDA

vs :

BUDDY EARL JUSTUS : :.

° FINDINGS IN SUPPORT OF SENTENCE

On February 8, 1980, Buddy Earl Justus was convicted by a jury

of the first degree murder of Stephanie Michelle Hawkins. That same

jury recommended the death sentence for Mr. Justus.

| It is now this Court's duty to sentence Buddy Earl Justus for

the first degree murder of Stephanie Michelle Hawkins.

In preparing to exercise that duty, this court carefully reviewed

the Plorida law relating to sentencing in capital cases ($921.141,

Florida Statutes, and cases listed in appendix) and also carefully

reviewed the application of the principles of the United States

Constitution to sentencing in capital cases. Furman v.- Georgia,

408 US 238, 33 L Ed 2a 346, 92 S Ct 2726 (1972); Proffitt v. Florida,

428 US 242, 49 L Ed 2d 913, 96 S Ct 2960 (1976); Dixon v. State,

283 So.2d 1 (Fla. 1973).

This court presided over the trial of the defendant. A pre-

sentence investigation was not considered by this court to offer

any assistance in this case and was not requested. It is not required.

Thompson v. State, 328 So.2d 1, 4 (Fla. 1976).

Florida law only allows two choices in imposing sentences for

capital felonies: life imprisonment with a mandatory minimum service

of 25 years before being eligible for parole, or death. $775.082,

Florida Statutes.

e@he Florida Legislature has also established guidelines to

control and direct the exercise on the sentencing court's discretion

in selecting and imposing the proper sentence in capital cases.

$921.141, Florida Statutes. Under these guidelines, the court must

consider and weigh certain specified aggravating and mitigating

circumstances.

—_—_

- "

Arse . apps chalet teenie

408 US 238, 33 L Ed 2d 346, 92 S Ct 2726 (1972).

State v. Justus

CF78-884

Page 2

From all of the evidence available, this court finds the

following aggravating circumstances to exist in this case:

1. §921.141(5)(d), Florida Statutes. This murder was committed

while the defendant was engaged in the commission of the robbery,

rape, and kidnapping of Stephanie Michelle Hawkins. The jury in

this case found the defendant guilty of the commission of those

other dangerous and violent felonies, in additioh to finding him

guilty of murder in the first degree. The defendant also admitted

to those other crimes.

2. 8921.141(5)(f£), Florida Statutes. This crime was committed

for pecuniary gain as evidenced by the robbery. However, in this

case, this court considers this circumstance as a part of the robbery,

and not as a separate, aggravating circumstance.

3. 8921.141(5) (i), Florida Statutes. Even though the defendant

said in his statement that the first shot to Ms. Hawkins’ head was

an accident, this court is convinced beyond any reasonable doubt

by the other evidence, including the William's Rule evidence, that

the defendant killed Ms. Hawkins in a.cold, calculated, and premeditated

manner without any pretense of moral or legal justification.

This court has carefully considered all of the available mitigating

circumstances. None of them are applicable.

“When one or more of the aggravating circumstances is found,

death is presumed to be the proper sentence unless it or they are

overridden by one or more of the mitigating circumstances ... .”

State v. Dixon, 283 50.2d 1 (Fla. 1973).

The United States Supreme Court has determined that if the death

penalty is to be imposed by the states, the United States Constitution

demands that it be imposed with regularity, rationality and consistency.

Proffitt v. Florida, 428 US 242, 49 L Ed 2d 913, 96 S Ct 2960, reh.

den. 429 US 875, 50 L Ed 2a 158, $7 S Ct 198 (1976); Furman v. Georgia,

4

Me GO OOS EEE Ll LS —- Ea ——- ——s—

State v. Justus

CF78-884

Page 3

verdict, and after comparing the circumstances of this case with

the circumstances existing in the death sentence cases reviewed

by the Florida Supreme Court since 1972 which are listed in the

appendix, and after carefully considering the Constitutional standards

espoused in Furman v. Georgia, supra, and Proffitt v. Florida, supra,

it is the judgment of this court that Buddy Earl Justus be put to

death in the manner provided by Florida law for the first ee

murder of Stephanie Michelle Hawkins‘

77s. 14, AIFS .

Copies furnished to:

A. R. Mander, Esquire

State Attorney's Office

_ a oe SS

eee ee . ee ee Pa PT a

i

CERTIFICATE OF SERVICE

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

Supreme Court of the United States and counsel of record for

BUDDY EARL JUSTUS, the Petitioner, hereby certify that on

December 19, 1983, pursuant to Supreme Court Rule 28, I

served a single copy of the foregoing Petition for Writ of

Certiorari to the Supreme Court of Florida with attached

Appendix on each of the parties as follows:

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

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

Florida, with first class postage prepaid, properly addressed

to Theda Davis, Assistant Attorney General, Park Trammell

Building, 1313 Tampa Street, 8th Floor, Tampa, Flor da 33602

Gert,

BY:; (4 vv. + —

or

Assistant Public Defender

Chief, Capital Appeals

Hall of Justice Building

455 North Broadway Avenue

Bartow, Florida 33830

(813) 533-1184 or 533-0931

COUNSEL FOR PETITIONER

> =e >

*

Case No. BY -5956

IN THE RECEIVED

SUPREME COURT OF THE UNITED STATES DEC 20 1983

OFFICE OF THE CLERK

i SUPREME COURT, U.S.

BUDDY EARL JUSTUS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner, Buddy Earl Justus, 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. In support of this

motion, Petitioner states that:

1. He was convicted on February 26, 1980, in the

Circuit Court for Pasco County, Florida, for first degree

murder, kidnapping, robbery and involuntary sexual battery.

2. He received a sentence of death for the first

degree murder and is presently in custody in Virginia pursuant

to judgment and sentence in that state.

3. He appealed to the Supreme Court of Florida,

and that Court affirmed all of his convictions and sentences.

4. He has been represented by appointed counsel

throughout his state court appeal proceedings.

Respectfully submitted,

Assistant Public Defender

Chief, Capital Appeals

PECEIVED

Case no. 88-5956

DEC 20,1983

IN THE

Wessas vt inc ULERK

SUPREME COURT OF THE UNITED STATES SUPREMT “ono y§

BUDDY E. JUSTUS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

AFFIDAVIT IN SUPPORT OF PETITIONER'S

MOTION TO PROCEED IN FORMA PAUPERIS

I, BUDDY E. JUSTUS, being first duly sworn, depose

and say that I am the Petitioner in the above-styled case; that

in support of my motion to proceed on my Petition for Certiorari

without being required to prepay fees, costs or give security

therefor, I state that because of my poverty I am unable to pay

the costs of said proceeding or give security therefor; and

that I believe I am entitled to redress upon the issues presented

in the Petition for Writ of Certiorari.

I further affirm that:

l. I was convicted on February 26, 1980, in the Circuit

Court of the Sixth Judicial Circuit in and for Pasco County,

Florida, for first degree murder, kidnapping, robbery and invol-

untary sexual battery in a single jury trial.

2. I received a sentence of death for the first degree

murder charge, and am presently in custody in Virginia pursuant to

judgment and sentence in that state.

3. I appealed to the Supreme Court of Florida and

that Court affirmed all of my convictions and sentences.

4. I am not employed and have no source of income.

5. I do not have any real estate, stocks, bonds,

notes, automobiles or any other valuable property.

6. I have been represented by appointed counsel

throughout my state court proceedings.

I understand that a false statement or answer to any

question in this Affidavit will subject me to penalties for

perjury.

Subscribed and sworn to

before me this day

of Pit. i ;

“)

fa . Zo,

Se ree _

Ny Commission Expires: a 1 NWSE

=

CERTIFICATE OF SERVICE

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

Supreme Court of the United States and counsel of record for

BUDDY EARL JUSTUS, the Petitioner, hereby certify that on

December 19, 1983, pursuant to Supreme Court Rule 28, I

served a single copy of the foregoing Motion for Leave to

Proceed in Forma Pauperis with attached Affidavit of Insolvency

on each of the parties as follows:

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

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

Florida, with first class postage prepaid, properly addressed

to Theda Davis, Assistant Attorney General, Park Trammell

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

/\ ia .

be——

Assistant Public Defender

Chief, Capital Appeals

Hall of Justice Building

455 North Broadway Avenue

Bartow, Florida 33830

(813) 533-1184 or 533-0931

COUNSEL FOR PETITIONER