Petition — Richard Sherman Williams v. Florida

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ORIGINAL

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983 peices

VECEIVED

RICHARD SHERMAN WILLIAMS, YA 3 184

Fis Lie. uh pia

Petitioner, OFFICE OF THE CLERK

mee eee VOURT, U.S.

vs.

STATE OF FLORIDA,

wn. 88-6048

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

= STEVEN L. BOLOTIN

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671

a TALLAHASSEE, FLORIDA 32302

(904) 488-2458

ATTORNEY FOR PETITIONER

(MEMBER OF THE BAR

OF THIS COURT)

————

QUESTION PRESENTED

- UESTION ' PAGE

THE TRIAL COURT'S REFUSAL TO GRANT A CONTINUANCE

OF THE PENALTY PHASE OF A CAPITAL TRIAL, IN THE

FACE OF DEFENSE COUNSEL'S UNCONTROVERTED REPRE-

SENTATION THAT HE WAS TOTALLY UNPREPARED TO PRE-

SENT ANY EVIDENCE IN MITIGATION, AND THE FLORIDA

SUPREME COURT'S AFFIRMANCE OF THE DEATH SENTENCE

UNDER THESE CIRCUMSTANCES, VIOLATED PETITIONER'S

RIGHT, GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION, TO

COUNSEL REASONABLY LIKELY TO RENDER EFFECTIVE AS-

SISTANCE. 5

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF CITATIONS

CITATION TO OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

STATEMENi OF THE CASE

HOW THE FEDERAL QUESTION WAS RAISED AND

DECIDED BELOW

REASON FOR GRANTING WRIT

UESTION

THE TRIAL COURT'S REFUSAL TO GRANT A CON-

TINUANCE OF THE PENALTY PHASE OF A CAPITAL

TRIAL, IN THE FACE OF DEFENSE COUNSEL'S UN-

CONTROVERTED REPRESENTATION THAT HE WAS

TOTALLY UNPREPARED TO PRESENT ANY EVIDENCE

IN MITIGATION, AND THE FLORIDA SUPREME

COURT'S AFFIRMANCE OF THE DEATH SENTENCE

UNDER THESE CIRCUMSTANCES, VIOLATED PETI-

TIONER'S RIGHT, GUARANTEED BY THE SIXTH

AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, TO COUNSEL REASONABLY

LIKELY TO RENDER EFFECTIVE ASSISTANCE.

CONCLUSION

CERTIFICATE OF SERVICE

- ii -

iii

ret eee 447 U.S. 625, 100 S.ct. 2382,

-Ed. (1980)

Blake v. Zant, 513 F.Supp. 772 (S.D.Ga. 1961)

The Vv. See 446 U.S. 335, 100 S.ct.

’ . . 33 (1980)

rate v. Wainwright, 714 F.2d 1532 (llth Cir.

Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285,

-Ed. 976)

Gardner v. Florida, 430 U.S. 349, 97 S.Ct.

’ L.Ed. 93 (1977)

Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974)

Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954,

L.Ed. (1978)

Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19

Les 2a 336 (i967)

Pickens v. Lockhart, 714 F.2d 1455 (8th Cir.

1583)

Specht v. Patterson, 386 U.S. 605, 87 S.Ct.

bos, 18 L.Ed.2da 326 (1967)

State v. Barber, 301 So.2d 7 (Fla. 1974)

Strickland v. Washington, 462 U.S. (1983)

United States v. Cronic, 675 F.2d 1126 (10th

Cir. 1982), cert. granted 459 U.S. _ (1983)

United States v. Gray, 565 F.2d 881 (5th Cir.

1578)

Vela v. Estelle, 708 F.2d 954 (5th Cir. 1983)

Washington v. Strickland, 693 F.2d 1243 (5th

Cirs 2)

Williams v. State, 438 So.2d 781 (Fla. 1983)

- iii -

5,6,8

The opinion of the Supreme Court of Florida, Williams v.

State, 438 So.2d 781 (Pla. 1983), is set forth in Appendix A.

The motion for rehearing and denial thereof are set forth in

Appendix B and Cc. }

JURISDICTION

Review is sought pursuant to 28 U.S.C. 1257(3). The -

judgment below was entered or September 8, 1983, and peti-

tioner's timely motion for rehearing was denied on November

4, 1983.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the constitutionality of a death sentence

imposed pursuant to Section 921.141, Florida Statutes (1973),

which is set forth in Appendix D. This case involves the

Sixth Amendment to the United States Constitution (right to ef-

fective assistance of counsel), the Eighth Amendment to the

United States Constitution (guarantee against cruel or unusual

punishment), and the Fourteenth Amendment to the United States

Constitution (making the Sixth and Eighth Amendments applicable

to the states; see Cuyler v. Sullivan, 446 U.S. 335, 344, 100

S.Ct. 1708, 64 L.Ed.2d 333 (1980); Estelle v. Gamble, 429 U.S.

97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).

STATEMENT OF THE CASE

Petitioner was indicted for first degree murder in the

death of Roy Huff, and on February 20, 1981 the jury returned

a verdict finding him guilty as charged. The trial court ad-

judged petitioner guilty of first degree murder and announced

that the penalty phase would begin at 3:00 p.m., after a lunch

break of approximately two hours (App.E.1,3). Defense counsel

moved for a continuance of the penalty phase to permit peti-

tioner "an opportunity to prepare whatever mitigating circum-

-l-

stances might be appropriate to submit to the jury” (App.E.4).

Counsel stated that he was "unable and unprepared to proceed

as indicated by the Court this afternoon" (App.E.4). The

prosecutor countered that defense counsel understood from the

beginning that this was a case in which the state was seeking

the death penalty, and therefore the second phase (App.E.5).

The prosecutor stated, "I am prepared to proceed with that.

,i have the witnesses and I urge the Court that we proceed"

(App.E.5). Defense counsel replied:

Your Honor, the Defendant has no witnesses

and is not prepared to present any witnes-

ses this afternoor, and again I urge the

Court in all sincerity that the only fair

thing to do would be to give the Defendant

an opportunity to assemble whatever miti-

gating circumstances are available to him

for presentation to the jury.

The case has proceeded rapidly as it could,

under the circumstances, there is no unto-

ward delay that I think the Defendant has

been responsible for or counsel has been

responsible for, except for at the begin-

ning when the Court graciously granted a

continuous [sic] because of my physical

condition. But I think it would be grossly

unfair to require us to proceed this after-

noon with the penalty phase.

(App.E.5-6).

The trial judge said he would take the motion for contin-

uance under advisement during the noon recess, but that it would

be well for both parties to assume that the trial would resume

at three o'clock (App.E.6). When court re-convened at three,

the judge announced his ruling denying a continuance of the

penalty phase (App.E.6).

Following the penalty phase, at which the defense called

no witnesses, the jury recommended that the death penalty be

imposed. The trial court ordered a presentence investigation,

and on March 30, 1981 sentenced petitioner to death.

The Supreme Court of Florida, on September 8, 1983, af-

firmed petitioner's conviction and death sentence. (App.A).

In a 4-2 decision, the majority held, inter alia, that the

trial court did not abuse his discretion in denying a contin-

uance of the penalty phase (App.A.5-6). Justice McDonald,

joined in dissent by Justice Overton, wrote:

-2-

I agree with the affirmance of Williams’ —

conviction but conclude that his sentence

should be vacated and a new sentencing

proceeding ordered. It appears on the

- face of the record that Williams' trial

counsel was totally unprepared for the

sentencing proceedings and thus Williams

was not afforded his right of effective

assistance of counsel at this critical

proceeding. I would not await a collat-

eral 3.850 motion since no further evi-

dence is needed to establish these facts.

(App.A.7)

Petitioner's timely motion for rehearing was denied on

November 8, 1983 (App.B and C).

HOW THE FEDERAL QUESTION WAS

RAISED AND DECIDED BELOW

In his brief on appeal, petitioner argued 1) that the

trial court's denial of petitioner's request for a continu-

ance of the penalty phase, in the face of defense counsel's

uncontroverted representation that he was wholly unprepared

to present any evidence in mitigation, deprived petitioner

of his Sixth Amendment right to counsel reasonably likely to

render effective assistance 1 (App.F.1-14, see especially App.

F.5-9), and 2) that the representation actually rendered by

defense counsel in the penalty phase was constitutionally in-

adequate (App.F.2-5,11-13; App.G.8-11). With regard to the

latter argument, petitioner contended that the general rule

stated in State v. Barber, 301 So.2d 7 (Pla. 1974) {i.e.,

that a claim of ineffective assistance of counsel cannot be

raised on direct appeal because it has not been ruled upon by

the trial court] was inapplicable, because in the instant case

the trial court did rule on petitioner's claim of ineffective

assistance, with the express intention of preserving the issue

for appellate review (see App.F.6-7, App.A.3-4,6-7).

The Florida Supreme Court rejected petitioner's argument

that the trial court's refusal to grant a continuance of the

‘penalty phase deprived him of his Sixth Amendment right to

See e.g. United States Vv. Gra

Herring v. Este e,

, 565 F.2d 881 (5th Cir. 1978);

25 (Sth Cir. 1974).

counsel reasonably likely to render effective assistance

(App.A.5-6). The Florida Supreme Court further concluded

that, notwithstanding the trial court's purported ruling

on petitioner's claim that defense counsel actually rendered

ineffective representation, that issue was not preserved for

appellate review, and must be raised in the trial court pur-

suant to Plorida Rule of Criminal Procedure 3.850 (App.A.6-7).

Justices McDonald and Overton dissented on the ground that

"(i]t appears on the face of the record that Williams' trial

counsel was totally unprepared for the sentencing proceedings",

and therefore petitioner was not afforded his right of effec-

tive assistance of counsel (App.A.7).

It is important to emphasize that in this petition for

writ of certiorari petitioner is not raising the issue as to

the ineffectiveness of the actual representation afforded by

defense counsel, since he concedes that the procedural ques-

tion of whether such issue can be litigated on direct appeal

Or must be raised in a collateral proceeding pursuant to Fla.

R.Cr.P. 3.850 is a matter of state law. The Florida Supreme

Court's affirmance of petitioner's conviction and sentence is

without prejudice to raise the issue of ineffective assistance

of counsel pursuant to Rule 3.850, and petitioner intends to

do so if necessary. In this petition for certiorari, peti-

tioner is raising only the issue which was decided adversely

to him on the merits by the Florida Supreme Court; specifically,

whether the trial court's refusal to grant a continuance of the

penalty phase deprived him of his Sixth Amendment right to

counsel reasonably likely to render effective assistance.

REASONS FOR GRANTING WRIT

QUESTION PRESENTED

QUESTION

THE TRIAL COURT'S REFUSAL TO GRANT A

CONTINUANCE OF THE PENALTY PHASE OF

A CAPITAL TRIAL, IN THE FACE OF DE-

FENSE COUNSEL'S UNCONTROVERTED REP-

RESENTATION THAT HE WAS TOTALLY UN-

PREPARED TO PRESENT ANY EVIDENCE IN

MITIGATION, AND THE FLORIDA SUPREME

COURT'S AFFIRMANCE OF THE DEATH SEN-

TENCE UNDER THESE CIRCUMSTANCES, VIO-

LATED PETITIONER'S RIGHT, GUARANTEED

BY THE SIXTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION, TO

COUNSEL REASONABLY LIKELY TO RENDER

EFFECTIVE ASSISTANCE.

Petitioner would note at the outset that the issue raised

in this petition is closely related to, but not identical to,

the issues concerning ineffective assistance of counsel, by

reason of the attorney's lack of preparation or failure to in-

vestigate potentially applicable defenses or mitigating cir-

cumstances, which will be considered by this Court in Washing-

ton v. Strickland, 693 F.2d 1243 (5th Cir. 1982), cert. granted

sub. nom. Strickland v. Washington, 462 U.S. __ (1983) and

United States v. Cronic, 675 F.2d 1126 (10th Cir. 1982), cert.

granted 459 U.S. __—s (1983).

This Court has held that the sentencing process in a

criminal trial must satisfy the due process clause of the

Fourteenth Amendment. Gardner v. Florida, 430 U.S. 349, 358,

97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Senrencing is a criti-

cal stage of a criminal proceeding, at which a defendant is

constitutional’y entitled to the effective assistance of coun-

sel. Gardner v. Florida, supra; Mempa v. Rhay, 389 U.S. 128,

88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Specht v. Patterson, 386

U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). A defendant's

right to the effective assistance of counsel is particularly

crucial in the penalty phase of a capital trial, due to the

severity and finality of the death penalty, and due to the

special interest of both the defendant and the public in en-

suring a reliable sentencing determination in such cases. See

Gardner v. Florida, Supra; Beck v. Alabama, 447 U.S. 625, 639;

100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Lockett v. Ohio, 438

U.S. 586, 605; 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In

Vela v. Estelle, 708 F.2d 954,964-65 (5th Cir. 1983) (a non-

capital case), the Fifth Circuit Court of Appeals observed:

"The sentencing stage of any case,

regardless of the potential punish-

ment, is ‘the time at which for many

defendants the most important ser-

vices of the entire proceeding can

be performed.'" Stanley v. Zant,

697 F.2d 955,963 (llth Cir.1983)

(citations omitted). Where the po-

tential punishment is 99 years im-

prisonment, the sentencing proceed-

ing takes on added importance. While

the legal standard of effective rep-

resentation does not change frum case

to case, this does not mean that the

severity of the sentence faced by a

criminal defendant should not be con-

sidered in determining whether coun-

sel's performance meets this standard.

Watkins, 655 F.2d at 1356. "(T]he

number, nature, and seriousness of

the charges against the defendant are

all part of the ‘totality of the cir-

cumstances in the entire record' that

must be considered in the effective

assistance calculus.” Id. See Stanley,

697 F.2d at 962-63. Here, Vela was

charged with perhaps the most serious

of offenses; murder. "Unless a defen-

dant charged with a serious offense has

counsel able to invoke the procedural

and substantive safeguards that distin-

guish our system of justice, a serious

risk of injustice infects the trial it-

self." Cuyler, 100 S.ct. at 1715.

The constitutional guarantee of effective assistance of

counsel means that an accused is entitled to an attorney rea-

sonably likely to render and rendering reasonably effective

assistance given the totality of the circumstances. Douglas

v. Wainwright, 714 F.2d 1532,1553 (llth Cir. 1983); Vela v.

Estelle, Supra, at 961; Washington v. Strickland, 693 F.2d

1243,1250 (5th Cir. 1982) (en banc); Herring v. Estelle, 491

F.2d 125,127 (5th Cir. 1974). Under the circumstances of the

present case, the trial court's refusal to allow a continuance

before commencing the penalty phase of the trial, notwithstand-

ing defense counsel's uncontroverted statements that he was

completely unprepared to proceed, was error of constitutional

dimension, since defense counsel was clearly not reasonably

likely to render reasonably effective assistance. In Pickens

Vv. Lockhart, 714 F.2d 1455,1467-68 (8th Cir. 1983), the Eighth

Circuit Court of Appeals, faced with a similar Claim that de-

° fense counsel was unprepared to offer any mitigating evidence

in the penalty phase of a capital trial, wrote:

Given the severity of the potential

sentence and the reality that the

life of Plant's: client was at stake,

we find that it was incumbent upon

Pickens' counsel to offer mitigating

proof. There exists no indication

in the record that Plant made any

tactical decision; it appears* much

more likely that he abdicated all

responsibility for defending his

client in the sentencing phase. we

cannot view such an abdication as

meeting the level of effective assis-

tance required under the sixth amend-

ment.

The error of the district court in

evaluating the strategy of Pickens'

counsel is that it fails to consider

that it is only after a full investi-

gation of all the mitigating circum-

stances that counsel can make an in-

formed, tactical decision about which

information would be the most helpful

to the client's case. In the present

case, it is undisputed counsel failed

to make any investigation whatsoever.

It is true counsel may choose not to

investigate all lines of defense and

may concentrate, for reasons of sound

strategy, on another possible line of

defense. See Washington v. Strickland,

693 F.2d at 1254-55. We would not fault

such a strategy if it were a reasoned

choice based on sound assumptions. That

is not the situation here. Plant did

no investigation into any possible mit-

igating evidence. He was left with no

case to present. A total abdication of

duty should never be viewed as permissi-

ble trial strategy. Id. at 1252-53; see

also Stanley v. Zant, 697 F.2d at 966

("a showing that counsel's decision to

forego evidence was not based on.a rea-

soned tactical judgment will give rise

to an ineffective assistance claim") (em-

phasis original); Brubaker v. Dickson,

310 F.2d 30,39 (9th Cir. 1962) ("appel-

lant's defense was withheld...in default

of knowledge that reasonable inguiry would

have produced, and hence in default of any

judgment at all").

¥t is sheer speculation that character wit-

nesses in mitigation would do more harm

than good, 542 F.Supp. at 598-99, and that

Pickens was not prejudiced by the omission.

Here, counsel's default deprived Pickens of

the possibility of bringing out even a sin-

gle mitigating factor. Mitigating evidence

clearly would have been admissible. 542

F.Supp. at 598; Ark.Stat.Ann. §41-1301(4)

(1977). The jury would have considered

it and possibly been influenced by it.

See Thomas v. Wyrick, 535 F.2d at 416-

17. We find that Pickens was actually

and substantially prejudiced in the pen-

alty phase of the case.

See also Douglas v. Wainwright, 714 F.2d 1532, 1556 (llth

Cir. 1983); Washington v. Strickland, Supra, at 1251-58; Blake

Vv. Zant, 513 F.Supp. 772,779-80 (S.D.Ga. 1981).

In the present case, defense counsel forthrightly informed

the trial court that he was unprepared to offer any evidence in

mitigation. Both the trial court and the Florida Supreme Court

were of the opinion that counsel should have been prepared --

that he had enough time to prepare (see App.A.5) -- but that

is relevant only to the question of whether sanctions against

the attorney might be appropriate. The fact that counsel should

have been prepared does not justify a ruling which resulted in

petitioner's being represented in this life-or-death proceeding

by an attorney who is, by his own admission, unprepared. Such

representation is tantamount to no representation at all. The

denial of the requested continuance, where the trial court was

clearly on notice that counsel was not reasonably likely to of-

fer effective assistance, sacrificed petitioner's right to a

reasoned determination, based on full consideration of the mit-

igating as well as the aggravating circumstances, of whether the

death penalty should be imposed, and was constitutional error of

the first magnitude.

SUPREME COURT OF THE UNITED STATES

October Term, 1983

RICHARD SHERMAN WILLIAMS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

APPENDIX

STEVEN L. BOLOTIN

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671

TALLAHASSEE, FLORIDA 32302

(904) 488-2458

ATTORNEY FOR PETITIONER

(MEMBER OF THE BAR

OF THIS COURT)

APPENDIX , PAGE (S)

A Williams v. State, 438 So.2d 781

(Fla. 1983) 1- 7

B Motion for Rehearing l- 5

Cc Order Denying Rehearing dated

November 4, 1983 1

D Section 921.141, Florida Statutes

(1973) 1

E Excerpts from Transcript of Trial

Proceedings l- 6

F Excerpts from Initial Brief of

Appellant in the Supreme Court of

Plorida 1-14

G Excerpts from Reply Brief of Appel-

lant in the Supreme Court of Florida

WILLIAMS v. STATE

(Cite as 438 Sad 781 (Fin 1983)

sion in Neilson. The district court opinion

also reflects that the failure to place warn-

ing signs at a railroad crossing which is

known to be dangerous and the failure to

gent, tortious conduct, immunity to which is

waived by section 768.28, Florida Statutes

(1977). This portion of the district court's

holding is consistent with our opinions in

Commercial Carrier, Neilson, and Ralph v.

City of Daytona Beach, No. 62,04, —

So.2d —— (Fla. Feb. 17, 1983), .- .

[3] We approve the result reached by the

ed to the jury on the issue of the petition-

e's negligent failure to maintain the rail-

road crossing and failure to warn motorists

of a known dangerous condition We note

that the district court relied in part on the

broad language defining “planning” in Col-

lom v. City of St. Petersburg, 400 So.2d 507

(Fla. 24 DCA 1981), which we modified in

City of St. Petersburg v. Collom, 419 So.2d

1082 (Fia.1982). S then

As modified, we approve the decision of

It is so ordered.

ALDERMAN, CJ. and BOYD and Mc

DONALD, JJ., concur.

ADKINS and EHRLICH, JJ., concur in

result only. :

SHAW, J., concurs specially with an opin-

ion.

SHAW, Justice, specially concurring.

I concur in the result but do not agree

that “the district court opinion appears to

bold that the failure to upgrade a railroad

intersection and the failure to install traffic

control devices are operational-level func-

Commercial Carrier Corp. v. Indian River

Couaty, 371 So2d 1010 (Fia.1979)." As I

}

pESE HE

itt

APPENDIX A

A-1

782 Fla

claim of ineffective assistance of counsel

was not properly before Supreme Court.

Affirmed. ;

imposing death

West's FSA. Const. Art 5,

es a oleh 1 oe:

2 Criminal Law 872%, mi

There was no confusion on part of jury

which deprived defendant of his righi to

unanimous verdict as to degree as well as to

guilt in capital case as guaranteed by both

Federal and State Constitutions and by

Criminal Procedure where

jury withdrew its question as to whether its

3. Criminal Law e586

Granting or denial of motion for con-

tinuance is within discretion of trial court.

4. Criminal Law @= 586

Principle that granting or denial of mo-

tion for continuance is within discretics of

trial court remains intact even in situations

where death penalty is of issue. ee

& Criminal Law 5901) - .- . -

’ Trial judge acted within his bounds

when he refused to grant defendant's mo-

_ tion for continuance of penalty phase of

Prosecution for first-degree murder where

decision to deny such motion was rendered

subsequent to two-hour recess, a period of

time sufficient to review relevant circum-

stances surrounding defendant's motion, de-

fendant's counsel had been aware, since his

appointment 11 weeks prior to trial, that

A-

MY5Xa, db). mirza:

438 SOUTHERN REPORTER, 24 SERIES j

case was one in which death penalty would

be sought, defendant, in presenting his mo-

tion for continuance, never offered reasons

for his unpreparedness, and defendant’

failed to demonstrate due diligence in locat-

that motion was made in good faith and not

for delay only. bt ide Fah

6 Criminal Law 577.1 9°)

Eleven weeks’ notice was adequate

time to prepare for both trial and sentenc-

ing phases of prosecution of F

murder in which death penalty would

sought. 12 Mee e: Ree? ee

7. Criminal Law €=5840 esd yy

Denia! of continuance of phase

of trial for first-degree murder did not pre-’

degree murder. West's FSA § 921-

- 120d

assistance of counsel cannot be raised

first time on direct appeal. U. Const.

, 1é BP a accom

10. Criminal Law @= 10646) 82

Where defendant's letter to trial ;

- WILLIAMS v. STATE

(Cite os 438 S026 78! (Tin 1963)

der and imposition of death penalty, even

though trial judge received such letter prior

- to sentencing and stated that defendant's

argument would be preserved for further

appellate review. U.S.C_A. Const Amend. 6.

Steven L. Bolotin, Asst. Public Defender,

Second Judicial Circuit, Tallahassee, for ap-

pellant.

Jim Smith, Atty. Gen. and Richard A.

Patterson, Asst. Atty. Gen., Tallahassee, for

appellee.

ADKINS, Justice.

[1] This case is before this Court on

appeal of a judgment from the Eighth Judi-

cial Cirevit, Bradford County. Williams

was convicted of first-degree murder and

received the death penalty. He appeals the

conviction and the attendant sentence. We

have jurisdiction under article V, section

Xb 1), Florida Constitution. Both the

judgment and the sentence are hereby af-

firmed.

Evidence at trial established the facts to

follow. In the early morning of July 16,

1980, Rey Huff began delivering breakfast

to the inmates on Q-wing of Florida State

-§

pen-

alty phase would begin after a lunch break

of two hours. Defense counsel moved for a

continuance of the penalty phase in order to

prepare for submission of appropriate miti-

he take the motion under advise-

it would be well for both parties

would

TUT eT

il : Wily

EERE Eb pee Th pit

| ieee UME

vt ibe ferte rHEEE TT

“|

784 Fin

ing, are each considered by the Court and

the allegations thereby specifically over-

ruled and the motion denied.

My purpose in this statement ic to make

abundantly clear for further appe'late re-

view that the argument was preserved by

the Defendant prior to the time of sen-

At the conclusion of the pre-sentence in-

vestigation the court found two aggravat-

ing circumstances—that defendant was un-

der sentence of imprisonment for second-

murder, and that he had been con-

further argues that as a result of such

uiliteed

‘cE

THE COURT: The second question is,

what is the abbreviation’?

JUROR: With.

THE COURT: So the question is:

“Does the jury have to have unanimous

agreement with the degree along with

the guilt charged?”

JUROR: We found the answer.

THE COURT: You did? ~

JUROR: Yes, sir. :

THE COURT: Then you don't need it

answered. ; <m

JUROR: Yea, sir. et

THE COURT: You may retire to deliber-

ate further.

Here, after the court verbalized the ques-

tion, “Does the jury have to have unani-

court to supply it. We find no evidence of

“manifest confusion” emanating from this

*.9°>

WILLIAMS v. STATE ©:

Fila 785

(Cite os 438 $0.24 73! (Fla 1883)

~ In addition, the jury had in its possession

during deliberations a written copy of the

judge's instructions, which provided im per-

tinent part: .

In the case of first degree murder, if

you find a conviction of first degree mur-

der it will be necessary for you to con-

sider and recommend to the Court which

of the two penalties, by a majority vote,

you recommend should be imposed. The

imposition of the penalty with those two

choices and your recommendation lie sole-

ly wita the Court.

Your verdict finding the Defendant ei-

ther guilty or not guilty must be unani-

mous. The verdict must be the verdict of

each juror, as well as of the jury as a

whole. ew 5

The indictment charges the crime of:

murder in the first degree, which in-

cludes, as a matter of law, the lesser

crimes of:

L not guilty;

2 guilty of murder in the first degree

as charged in the indictment;

3. guilty of murder in the second de-

gree;

4. guilty of murder in the third de

without question, mandate that the verdict,

which contains guilt and degree, be unani-

mous. Moreover, these same instructions

provided the correct answer to the jury's —

te present any evidence of mitigating cir-

cumstances.

{3-6} The granting or denial of a mation

for continuance is within the discretion of

the trial court. Durean v. State, 350 So.2d

525 (Fla. 3d DCA 1977); Mills v. State, 230

$0.2d 35 (Fla. 3d DCA 1973); Douglas v.

State, 216 So.2d 82 (Fla. 3d DCA 1968).

This principle remains intact even in situa-

While death penalty ‘cases command our

closest scrutiny, it is still the obligation of

an appellate court to review with caytion

the exercise of experienced discretion by

a trial judge in matters such as a motion

for a continuance.

336 Sold at 1138 (emphasis added). We

moved for a continuance at the conclusion

of the guilt phase of the trial. The trial

judge's decision to deny the motion was not

made in haste. The decision to deny was

rendered subsequent to a two-hour re-

cess—a period of time sufficient to review

786 Fla 438 SOUTHERN REPORTER, 24 SERIES

[7] Moreover, and contra to what appel-

lant contends, the denial of the continuance

~ did not prevent the trial court from famil-

mitigating circumstances. Immediately fol-

lowing the penalty phase of the trial, the

san Goh saa bites Weteheeen oat

sentence order which contained the follow-

ing:

JUDGMENT AND SENTENCE

of the stab wounds within a fev

aggravating factors apply in this case:

convicted of second degree murder—a

[8] Only after Quneatiy tamiliarising

himself with the presentence investigation,

report did the trial judge determine that

there were no applicable mitigating factors.

Moreover, the record clearly substantiates

the trial judge's finding of the two

ry aggravating circumstances

sections 921.141(5\a) and (b), Florida

utes (1981), respectively. It is undi

that, at the time of the slaying, the

lant was incarcerated at Florida State

on Baths een ot Snes

der—a crime of violence.

Accordingly, after careful ,

of the coud, baletieg a Uneeeth-anaie

the sentence order, our judgment is .

Geath is a proper sentence.

Williams further submits that in refu i

to grant the continuance the trial

deprived him of his right to effective

ance of counsel We disagree

[9] Asa general rule, a claim of

tive assistance of counsel cannot be rai

for the first time on direct appeal.

v. State, 351 So.2d 948 (Fla.1977), cert. |

nied, 485 US 1004, 98 SCt 1660,

LEd2d 93 (1978); State v. Barber,

So.2d 7 (Flal974); Pinder v. State,

So2d 778 (Fla. 5th DCA 1982); Kidwell

State, 394 So2d 526 (Fla 3d DCA 1981

Valero v. State, $98 Sod 1197 (Fla

DCA 1981). We find no reason to

now from this principle. a

[10] Here, the appellant improperly improperly ai,

tempted to setae the question of ineliaties,

assistance of counsel in an amended motiog)

for a new trial. In s0 doing, i

failed to provide the trial court with

HARRIS v. STATE

Fin 787

Cite os 438 $0.36 757 (ie 1963)

sertions” totally devoid of factual support.

United States v. Rodriguez, 582 F.2d 1015

(Sth Cir.1978). Moreover, neither the state

por the court-appointed trial counsels were

granted the opportunity to refute the un-

sworn ineffective assistance of counsel alle-

gation. United States v. Prince, 456 F.2d

1070 (Sth Cir.1972); United States

v. Phillips, 664 F 2d 971 (Sth Cir.1981), cert.

denied, Meinster v. United States, 457 U.S.

1136, 102 S.Ct. 2965, 73 L.Ed. 2d 1354 (1982).

For the shove reasons, we find that Wil-

liams’ claim of ineffective assistance of

counsel is not, st present time, properly

before this Court. :

Accordingly, both the conviction and the

attendant sentence are affirmed without

prejudice to the right of Williams to raise

the issue of ineffective assistance of counsel

in a proper proceeding pursuant to Florida

It is so ordered Ee

ALDERMAN, CJ., and BOYD and EHR-

LICH, JJ., concur. a. 4

McDONALD, J., concurs in part and dis-

sents in part with an opinion, in which

OVERTON, J., concurs.

McDONALD, Justice, concurring in part

and dissenting in part wi

I agree with the affirmance of Williams’

conviction but conclude that his sentence

should be vacated and a new sentencing

proceeding ordered. It appears on the face

of the record that Williams’ trial counsel

was totally unprepared for the sentencing

proceedings and thus Williams was not af-

forded his right of effective assistance of

counsel at this critical proceeding. I would

not await a collateral 3.850 motion since no

further evidence is needed to establish these

facts.

OVERTON, J., concurs. —

Game

Theodore HARRIS, Appellant,

right to have instructions on necessarily

included lesser offenses given to jury; (6)

issuance of warrant for defendant's arrest.

A-7

IN THE SUPREME COURT OF FLORIDA

RICHARD SHERMAN WILLIAMS,

Appellant,

vs.

CASE NO. 60,546

STATE OF FLORIDA,

Appellee. $

MOTION FOR REHEARING

Appellant, RICHARD SHERMAN WILLIAMS, pursuant to Rule

9.330(a) of the Florida Rules of Appellate Procedure, here-

by moves this Court for rehearing in the above-styled case,

and as grounds therefor states:

1. Appellant contended on appeal that the trial court

abused its discretion by refusing to grant a continuance of

the penalty phase when defense counsel represented that he

was unprepared to present any evidence of mitigating circum-

stances. In rejecting appellant's argument, this Court stat-

y /

ed, inter alia:

Moreover, and contra to what appellant

contends, the denial of the continuance

did not prevent the trial court from fa-

i roe itself [e.s.]) with potential-

ly applicable mitigating circumstances.

Immediately following the penalty phase

of the trial, the trial judge ordered a

presentence investigation.

* * * s * *

Only after thoroughly familiarizing him-

self with the presentence investigation

report did the trial judge determine that

there were no applicable mitigating cir-

- cumstances.

Williams v. State, So.2d (Pla. 1983)

(case no. 60,546, opinion filed September

8, 1983) (1983 FLW 333, at 335)

2. Appellant believes that, in affirming his death sen-

tence notwithstanding defense counsel's admitted unpreparedness

and the trial court's refusal to grant a continuance of the penalty

phase, this Court may have overlooked or misapprehended the ef-

fect of the trial court's ruling upon the vital role of the jury

in capital sentencing. The Court may also have misapprehended

APPENDIX B

B-1

the constitutional importance of the adversary presentation

by counsel of the aggravating and mitigating circumstances

in a capital case, as opposed to the (at best) neutral view-

point of a PSI.

3. At the close of the penalty phase, in which the de-

fense presented no witnesses, and after the jury had returned

its recommendation of death, the trial court announced:

Richard Sherman Williams, the jury having

found you to be guilty and having made its

recommendation as to penalty, this Court

will request and obtain upon you a pre-sen-

tence investigation and look into your back-

ground prior to the disposition of the case.

(T.682)

The PSI report was prepared, pursuant to Fla.R.Cr.P.

3.710, by an officer of the probation and parole commission.

This officer's function is to advise the Court and to recom-

mend a disposition of the case; his perspective is that of

law enforcement and administration of justice. He is not an

advocate - and certainly not an advocate on behalf of the de-

fendant - and he is not a legal representative. It is not his

role to persuade the judge to impose a life sentence rather

than the death penalty, and it is not his obligation to try to

show the judge and jury "something good" about the defendant

(see Blake v. Zant, 513 F.Supp. 772, 779 (S.D. Ga. 1981)]. The

PSI, far from being an adequate substitute for effective assis-

tance of counsel for the purpose of presenting matters in miti-

gation, as the opinion in this case intimates, was a law-enforce-

ment oriented document which prominently featured Williams’ .

lengthy juvenile, criminal, and prison disciplinary record (S.R.

Nov. 19, 1981, p. 2-5).

4. Defense counsel's failure to investigate potential miti-

gating circumstances and his failure to prepare for the penalty

phase of the trial not only impaired the trial court's ability

to fairly assess the aggravating and mitigating circumstances,

but even more importantly, it rendered the penalty proceeding

before the jury an empty charade. The trial court's refusal to

grant a continuance, in the face of counsel's uncontradicted

representation that he was wholly unprepared to present any

evidence of whatever mitigating circumstances might be appli-

cable, deprived appellant of any meaningful opportunity to

persuade the jury to return a life recommendation. This Court

has recognized on numerous occasions that the jury's recommen-

dation reflects the conscience of the community and is entitled

to great weight. See e.g. Richardson v. State, _50.2d_ (Pla.

1983) (case no. 61,924, opinion filed September 1, 1983) (1983

FLW 327, 328); McCampbell v. State, 421 So.2d 1072 (Fla. 1982);

Tedder v. State, 322 So.2d 908 (Fla. 1975). In Richardson v.

State, supra, decided one week prior to the instant case, this

Court commented:

It is a defendant's right to have a jury ad-

visory opinion, and absent a voluntary and

intelligent waiver of that right, a judge may

not frustrate this important jury function.

Lamadline v. State, 303 So.2d 17 (Fla. 1974).

We cannot condone a proceeding which, even

Subtly, detracts from comprehensive consider-

ation of the aggravating and mitigating fac-

tors after all parties have agreed on the ap-

propriate evidence to be considered.

(1983 FLW at 328)

In the instant case, appellant's right to full and fair con-

sideration of the aggravating and mitigating factors, by the judge

and especially by the jury, was impaired - not subtly ~- by his own

zattorney's unexplained failure to investigate and prepare, and by

the trial court's decision to require counsel to proceed unpre-

pared rather than to continue the penalty phase. Appellant cer-

tainly did not waive his right to a jury recommendation, either

voluntarily and intelligently or otherwise. To the contrary, he

protested throughout the trial and afterward that he was being

represented ineffectively. The bottom line is that appellant did

not have, and still has not had, a fair opportunity to present any

matters in mitigation or to persuade a jury or judge that he should

not be sentenced to death. That being the case, his sentence of

death cannot be carried out without violating the Eighth Amendment

to the U. S. Constitution. See Lockett v. Ohio, 438 U.S. 586

(1978); Eddings v. Oklahoma, 455 U.S. 104 (1982).

5. This Court affirmed appellant's conviction and death sen-

tence without prejudice to his right to raise the issue of ineffec-

B-3

tive assistance of counsel in a proceeding pursuant to Fla.R.Cr.P.

3.850. Justice McDonald (joined by Justice Overton) dissented

in part, and said:

It appears on the face of the record that

Williams’ trial counsel was totally unpre-

pared for the sentencing proceedings and

thus Williams was not efforded his right

of effective assistance of counsel at this

critical proceeding. I would not await’a

collateral 3.850 motion since no further

evidence is needed to establish these facts.

Based upon the well reasoned dissenting opinion of Justice

Overton in Sobel v. State, __So.2d_ (Fla. 1983) (case no. 61,960,

Opinion filed July 21, 1983) (1983 FLW 255), and particularly in

light of the facts that (1) appellant complained both during and

after the trial and penalty proceeding that he was being afforded

ineffective representation, (2) defense counsel forthrightly ad-

mitted his lack of preparation for the penalty phase (thus obvi-

ating the reason behind Rule 3.850's requirement that allegations

of ineffectiveness be sworn to by the defendant, and making it

unnecessary to grant the lawyer the opportunity to refute the

claim of ineffectiveness which he has just admitted), (3) defense

counsel moved for a continuance of the penalty phase, thus afford-

ing the trial court an opportunity to ensure that counsel's unpre-

paredness would not prejudice appellant's right to a fair penalty

-hearing, and (4) the trial court purported to rule on appellant's

claims of ineffective assistance for the express purpose of pre-

serving these issues for appellate review, appellant respectfully

urges this Court to reconsider its position on this matter. On

several recent occasions, justices of this Court and the U. s..

Supreme Court have cast a disapproving eye upon protracted col-

lateral proceedings in capital cases, essentially on the theory

that “justice delayed is justice denied" and a defendant should

not be allowed to postpone his inevitable execution by raising

issues which could have been resolved earlier. See e.g. McCrae

v. State, So.2d_ (Fla. 1983) (case no. 63,797, opinion filed

September 15, 1983) (Alderman, C.J. concurring in result) ; Bare-

foot v. Estelle, _U.S.__, 77 LEd2d 1090, 1100 (1983); Gray v.

Lucas, _U.S.__ (1983) (33 Cr.L. 4156). This principle cuts both

ways. Clearly, through no fault of his own, appellant has not

had a fair penalty hearing before a jury and judge, and just as

clearly, he is constitutionally entitled to one. As this Court

observed in Castor v. State, 365 So.2d 701, 703 (Fla. 1978),

"Delay and an unnecessary use of the appellate process result

from a failure to cure early that which must be cured eventually.”

In the present case, the trial court had an opportunity to cure

the constitutional error - deprivation of the right to effective

assistance of counsel in the penalty phase - before it occurred,

by granting a continuance and (if he deemed it appropriate) im-

posing sanctions upon counsel for his failure to prepare. This

Court has one final opportunity on rehearing to cure the error

by-ordering a new penalty proceeding. As Justices McDonald and

Overton recognized, no further factual development is necessary

to demonstrate that appellant is constitutionally entitled to

the relief he requests. A Rule 3.850 proceeding will entail the

needless expenditure of time, public funds, and judicial resources,

and the ultimate result will necessarily be the same.

WHEREFORE, appellant respectfully requests that this Court

grant his motion for rehearing.

Respectfully submitted,

Shun | TECH,

TEVEN L. BOLOTIN

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been fur-

nished by hand delivery to Richard Patterson, Assistant Attorney

General, The Capitol, Tallahassee, Florida 32301 and a copy mailed

to appellant, Richard Sherman Williams, P. ©. Box 747, Starke,

Florida 327091 on this 23rd day of September, 1983.

CMittnn fe ~

Given Lele

Supreme Court of Florida

PRIDAY, NOVEMBER 4, 1983

RICHARD SHERMAN WILLIAMS,

Appellant, CASE NO. 60,546

Vv. Circuit Court No. 80-240-cPr

(Bradford)

STATE OF FLORIDA,

Appellee.

see oP Oe eee Oe

zs eevee eR ea RRR eR Re

Upon consideration of the Motion for Rehearing filed in

the above cause by attorney for appellant,

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

denied. 3

——

ALDERMAN, C.J., ADKINS, BOYD, OVERTON and EHRLICH, JJ., concur

MCDONALD, J., dissents :

vay @ 1983

PUBLIC LEFENDER

2nd JUDICIAL CIRCUIT,

A True Copy TC

cc: Hon. Gilbert S. Brown, Clerk

TEST: Hon. R. A. Green, Jr., Judge

Steven L. Bolotin, Esquire

Richard Patterson, Esquire

Sid J. White

Clerk, Supreme Court

“hae WNT

APPENDIX C

Cc-1

FS. 1981 SENTENCE Ch. 921

CHAPTER 921

SENTENCE

921.09 Fees of physicians who determine sanity at PENALTY.—Upon conviction or adjudication of

time of sentence.

Fees of physicians when pregnancy is al-

leyed as cause for not pronouncing sen-

tence.

Sentence of death or life imprisonment for

capital felonies; further proceedings to

determine sentence.

Appearance of victim to ™ .":e statement at

sentencing hearing; -~i:*'sion of writ-

ten statement.

Stay of execution of sentence to fine; bond

and proceedings.

When sentences to be concurrent and when

conseculive.

Sentence not to run until imposed; credit

for county jail time after sentence; certif-

icate of sheriff.

Sentence for indeterminate period for non-

capital felony.

Sentence; restitution a mitigation in cer-

tain crimes. ;

Classification summary; Parole and Proba-

tion Commission.

Progress reports to Parole and Probation

Commission.

Determination of exact period of imprison-

ment by Parole and Probation Commis-

sion.

Presentence investigation reports.

Felony judgments; fingerprints required in

+ record.

Subsequent offenses under chapter 796;

method of proof applicable.

921.12

21.141

921.143

921.15

921.16

921.161

921.18

921.185

921.20

921.231

921.241

921.242

921.09 Fees of physicians who determine

sanity at time of sentence.— court shall allow

reasonable fees to physicians appointed by the court

to determine the mental condition of a defendant

who has alleged insanity as a cause for not pronounc-

ing sentence. The fees shall be paid by the county in

which the indictment was found or the information

or affidavit filed. i .

ane 19554, 1979, CCL [960 Supp. S6GN254, « 121. ch

_ 921.12 Fees of physicians when pregnancy

is alleged as cause for not pronouncing sen-

tence.—The court shall allow reasonable fees to the

physicians appointed to examine a defendant who

has alleged her pregnancy as a cause for not pro-

Mnincing sentence. The fees shall be paid by the

county in which the indictment was found or the in-

furmauion or affidavit filed.

a eens Dak, ch W9SS4, 1979, CCL 1960 Sapp SSENDETE a 122. ch

921.141 Sentence of death or life imprison-

ment for capital felonies; further proceedings to

determine sentence.—

(1) SEPARATE PROCEEDINGS ON ISSUE OF

cpa eee?

guilt of a defendant of a capital felony, the court shall

conduct a separate sentencing proceeding to deter-

mine whether the defendant should be sentenced to

death or life imprisonment as authorized by s.

775.082. The proceeding shall be cr lucted by the

trial judge before the trial jury as soon as practicable.

If, through impossibility or inability, the trial jury is

unable tu reconvene for a hearing on the issue of pen-

alty, having determined the guilt of the accused, the

trial judge may summon a special juror or jurors as

provided in chapter 913 to determine the issue of the

imposition of the penalty. If the trial 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 de-

fendant. In the proceeding, evidence may be pres-

ented as to eny matter that the court deems relevant

to the nature of the crime and the character of the

defendant and shall include matters relating to any

of the aggravating or mitigating circumstances enum-

erated in subsections (5) and (6). Any such evidence

which the court deems to have probative value may

be received, regardless of its admissibility under the

exclusionary ruies of evidence, provided the defen-

dant is accorded a fair opportunity to rebut any hear-

say statements. However, this subsection shall not be

construed to authorize the introduction of any evi-

dence 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,

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

aggravating and mitigating circumstances, shall enter

a sentence of life imprisonment or death, but if the

court imposes a sentence of death, it shall set forth in

writing its findings upon which the sentence of death

et Thos eufficien

a t ient aggravating circumstances ex-

enumerated in subsection (5), and

(b) That there are insufficient mitigating circum-

stances to outweigh the aggravating circumstances.

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

GAME OAL COO” he hh CPP in

, the jury shall _

earraers

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pope tmmrrerese! fers RY toe ro =

. “ _ h -

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APPENDIX D

D-i

dee

TES CCURT: You may retire to deliberats

further.

‘Thereupon, court was at ease awaiting

the verdict; whereupon, at one fifteen p.m.,

che Zgollowing proceedings were held:)

HD COURT: Ladies and gentlemen, itave

you arrived at a verdict?

JUROR: Yes, sir.

TES COURT: Mr. Eunice, give the verdict

to the court, please.

wadame Clerk, publisa the verdict.

APPENDIX E

E-1

in the Circuit Court of Plorida, Eighth

Judicial Cizcuit, in and for 3rad¥ford County.

case No. 30-240-C?,.

State cf Florida, Plaintiff, versus Richard

Sherman Williams, Defendant.

Verdict:

We, tho jury, find the Defendant, Richard

Sherman Williams, guilty of murder in the first

degree, as cnarged in the indictment.

‘i say we all.

Dated at Starke, Bradford County, Plorida,

this 20th day of February, A.D., 1981.

Signed, Jennifer Zlaine Jockel, foreman.

ZZ COURT: 11 the jury, Madame Clerk.

“rhexeupen, each juror was asked if this

was <hair verdict and each juror answered in

the atZismative.)

SFE COURT: Record the verdict.

Richard Sherman Williams, you being found

guilty by a jury of the cffense of first degree

murder, = row adjudge you guilty of that offense,

Take your seat.

ee ee = +>

tadies and gentlemen, under the crocedures

we will 300m commence the second phase of these

proteeaings in which the jury will te asked to

eqcommrnd the disposition of the case. ?rior

5 =tat commencing, Aowever, f will ask Deputy

sutisa to cive you your noon meal.

“r, Dunice, please take the jury to lunch,

tI woula aux that they ke back in the fury room

as tar22 p.m. Te will be ny tntenticn to

conduct the sreceedings at that point until

consiusion.

*aairs and gentlemen, the verdict you have

renjgorei is racordsd. The advisory verdict

you will te zsked to reach later will have to

be zuled on sv you by a majority vote of your

number. Wowsver, pending the return and beginning

of thos praceedings, I do now reinstate the

previcus instructions that = save you. Do not

continua £9 discuss «he case among yourselves

at this toint. Yo one may discuss the case in

your oraserse oF before you or to you except when

you coma tack to court in open proceedings.

“92 will be the quest of the county for

the acon teal and when you return the proceedings

will commence. -

tir. Denice, take th. jury to their noon

meal.

As soon as the jury cleara the courtroon

‘we will cecess fer lanch.

(chereupen, she jury retired.)

MR. TUTCI: Your Honor, the Defendant

moves the Court to continue the penalty phase

of the proceedings until a day subsequent to

*oday in crder to allow the Defendant an opportunity

to prenare whataver mitigating circumstances micht

he acpropriate to submit to the jury.

Torecuire him to proceed at three o'clock,

I believe is what she Court said, today would

rejudice the Defendant's rights to fairly and.

‘J

Sully present any mitigating circumstances that

might bre appropriate to submit to the jury.

whis case has moved rather rapidly and

has had sone unusual circumstances to arrive

and counsel is just unable and unprepared to

Srocesd as indicated by tne Court *his afternoon,

and shink it vould be only fair and reasonable

that such a continuance or the scheduling of

the penalty phase would be appropriate.

WR. SLWELL: Your Honor, if £ may brierly>

‘RE COURT: Yes, sir.

WR, 2IWELL: It's been the posture of this

sase Irom its inception and, or course, from

cir. cutch's appointment, that there would be

at least for the Stats Attorney's Office no

negotiations. so out front it has been a case

that =he State intended and had announced its

intentions to seek the second phase. There were

metians riled by the Defense going towards that

cecené thase and various and numerous discussions

thac that second phase would be proceeded with

by the-State.

= 2m prepared to proceed with that. I

have the witnesses and I believe the phase itself

is appropriate and I urge the Court that we proceed.

“R. —P Your Monor, the Defendant has

no witnesses and is not prepared to present any

witnesses this afterrocn, and again I urge the

Touxt in all sincerity shat the cnly fair thing

so Co roull be to give the Sefendart an opportunity

&9 ashen le whatever mitigating circumstances

are availabie ts him Zor presentation to the

2ury.

The case has proceeded rapidly as it could,

ander the cizcumstances, there is no untoward

delzy shat Tt think the defendant has been responsible

for cr counsel tas been responsible for, oxcept

for at cite baginninc wnen the court graciously

granted a centinucus because of my physical

Condition. nut Ir think it would be crossly

unfair to roquire us to5 proceed this afternoon

with the penalty phase.

THE COURT: Counsel, rz will take your

motion for continuanceunder advisement during

the noon recess. However, it would be well tor

cndiabl fcr both parties at this point to

anticipate that we will be resuming at three

o'clock, .

We will recess until three.

(Thereuccn, the luncheon recess was had;

“Mereuson, at three Dem. She following Proceedings

vere held:)

TNE COURT: The record reflects the motion

made at the close of the Proceedings before

lunch, which was taken under advisement. The

SOurt Aas ruled contrary to the position of the

movant,

—_ ~=

491, 493 (Fla. 4th DCA 1974) (fundamental error).

In view of the finality of the death penalty, and the special

importance of a reliable determination of guilt in cases in which

such penalty may be imposed (Beck v. Alabama, supra), the principles

of the foregoing cases apply here with added vigor. Because we

cannot know, as a result of the trial court's failure to dispel the

jury's confusion, whether their verdict finding the defendant guilty

of first degree murder was unanimous, his conviction should be

reversed for a new trial.

ISSUE II

THE TRIAL COURT ABUSED ITS DISCRETION BY

REFUSING TO GRANT A CONTINUANCE OF THE

PENALTY PHASE WHEN DEFENSE COUNSEL

REPRESENTED THAT HE WAS UNPREPARED TO

PRESENT ANY EVIDENCE OF MITIGATING CIRCUM-

STANCES; THEREBY DEPRIVING THE DEFENDANT

OF HIS RIGHT TO EFFECTIVE ASSISTANCE OP

COUNSEL GUARANTEED BY THE SIXTH AND FOUR-

TEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

On January 26, 1981, defense counsel, Mack S. Futch, filed a

motion to postpone the advisory sentencing proceedings, in the event

of a first degree murder conviction (R-36-37). In this motion, he

represented that the defendant, should he be convicted, desired to

present testimony which might include out of town witnesses, or witnesses

who would require prior notification (R-36). A written notation

appears on the face of the motion indicating that the court denied

it pre-trial (R-36).

At the conclusion of the guilt phase of the trial, the court

announced that the penalty phase would begin at 3:00 p.m., after

a lunch break (T-637). Defense counsel moved for a continuance to

- 32 -

APPENDIX F

F-l

permit the defendant “an opportunity to prepare whatever mitigating

circumstances might be appropriate to submit to the jury” (T-628).

Counsel stated that he was “unable and unprepared” to proceed with

> the penalty phase as indicated by the court (T-628). He did not

volunteer any cause for his lack of preparation, and the court did

not inguire. The prosecutor urged the court to proceed with the

penalty phase that afternoon, stating that he was prepared and had

his witnesses ready,” and that Mr. Futch had known from the beginning

that this was a case in which the state would be seeking the death

penalty (T-629).

Defense counsel repeated that he was unprepared, and urged

that "the only fair thing to do would be to give the defendant an

opportunity to assemble whatever mitigating circumstances are avail-

able to him for presentation to the jury" (T-629). The court said

he would take the motion under advisement during the noon recess,

but that it would be well for both parties to assume that the penalty

Phase would proceed as scheduled (R-630). At 3:00 p.m., the court

announced his ruling denying a continuance, and the penalty phase

commenced.

Defense counsel's motion for compensation, filed February

24, 1981, indicates that he spent the lunch break of approximately

two hours preparing for the penalty phase (R-79-80). He was able

to review the inmate jackets of the defendant and Roy Huff, as they

had been brought to court by Doyle Kemp pursuant to the prosecution's

* The prosecution called only one witness in the penalty phase,

Doyle Kemp, inmate records supervisor at Florida State Prison,

through whom it introduced into evidence commitment papers showing

that the defendant was under sentence of imprisonment for second

degree murder at the time of the Huff killing (R-632-641, 646).

= 33 <

. evidently found the 1977 Union Correctional Institution memorandum

which revealed that Roy Huff was apprehended with a concealed knife

after having threatened to kill someone (S.R. Dec. 30, 1981, p.21;

T-643-44).

This last minute discovery proved to be the only evidence

submitted by the defense in the penalty phase (T-643, 646). Defense

counsel stated that, in view of the court's denial of a continuance,

the only possible witness on behalf of the defendant would be the

defendant himself (T-646-47). As he had at trial, the defendant

declined to testify (T-647-49).

There was virtually nothing defense counsel could have done,

no matter how competent or well-prepared he might be, to prevent the

state from establishing beyond a reasonable doubt the twin aggrava~

ting circumstances that the defendant was under sentence of imprison-

ment and that he had previously been convicted of a violent felony.

Therefore, in order to have any realistic chance of preventing

imposition of the death penalty, the defense needed to persuade the

jury and the court that these aggravating circumstances were outweighed

by the mitigating circumstances. (See Arango v. State, So.2d

(Fla. 1982) (Case No. 59,678, opinion filed January 21, 1982) (1982

FLW 38). It was virtually imperative that the defense establish

at least one mitigating circumstance. See Dixon v. State, 283 So.2d

1, 9 (Fla. 1973); Demps v. State, 395 So.2d 501, 506 (Fla. 1981);

Christopher v. State, 407 So.2d 198, 203 (Fla. 1981) (where there

exist one or more aggravating circumstances, counterbalanced by no

mitigating circumstances, death is presumed to be the proper sentence).

oe %-

See also, e.g., Armstrong v. State, 399 So.2d 953, 963 (Fla. 1981);

Enmund v. State, 399 So.2d 1362, 1373 (Fla. 1981); White v. State,

403 So.2d 331, 339 (Fla. 1981); Tafero v- State, 403 So.2d 355, 362

(Fla. 1981). In expressing to the trial court that he was unprepared,

ana in asking for ¢ continuance to allow the defendant “an opportunity

to prepare whatever mitigating circumstances might be appropriate

. . . " (7-628) for, later, requesting "an opportunity to assemble

whatever mitigating circumstances are available . .. (T-629)], defense

counsel was telling the court that he did not know what evidence

might be available in mitigation, or whether there was any. Contrast

Gibson v. State, 351 So.2d 948, 950 (Fla. 1977) ("It is probable

that appellant's counsel offered nothing in mitigation because there

was nothing to offer").

Defense counsel was thus forced by his own lack of preparation

to rely entirely on a rather desultory argument to the jury. He

referred to the U.C.I. memorandum to show that Roy Huff was a violent

and dangerous individual (T-664-65). He asked the jury to find as

mitigating circumstances (1) that the defendant was under the influence

of extreme mental or emotional disturbance, and (2) that his capacity

to conform his conduct to the requirements of law were substantially

impaired. He argued that these mitigating circumstances were estab-

lished by the “possible effect" of six and one half years in lock-up

on a person's mind (T-666-67). Obviously, he had no expert witnesses

to substantiate either the "possible effect" of prolonged confinement,

or its actual effect on the defendant. Nor did he have any lay

witnesses to describe the defendant's actual behavior. Defense

counsel's only evidentiary support for these mitigating circumstances

= 35 -

_ was Inspector Sands’ answer on cross-examination during the guilt

phase that “(t]here have been cases where prolonged confinement has

caused inmates to act irrationally, yes, sir” (T-481, 668). The

defense's inability to connect its nebulous argument to this defen-

” dant had already been anticipated by the prosecutor, who pointed out

the deficiency to the jury (T-658). Defense counsel closed his

argument by calling the prosecutor “blood thirsty" and suggesting

that, in view of the character of the deceased, a life sentence

would be appropriate (T-669).

If defense counsel had chosen such an approach to the penalty

phase as a matter of strategy, perhaps his decision could be defended.

If he had failed to offer any evidence in mitigation because he had

concluded, after proper investigation, that none existed, he could

not be faulted. Clearly, neither of these were the case. Due to

his own lack of preparation, and to the trial court's refusal to

grant a continuance, defense counsel had no alternative but to "wing

it". As a result, the defendant's constitutional right to the

effective assistance of counsel was sacrificed.

The sentencing process in a criminal trial must satisfy the

Due Process Clause of the U.S. Constitution. Gardner v. Florida, 430

U.S. 349, 358 {1977). Sentencing is a critical stage of a criminal

proceeding, at which a defendant is constitutionally entitled to

the effective assistance of counsel. Gardner v. Florida, supra;

Mempa v. Rhay, 389 U.S. 128 (1967); Specht v. Patterson, 386 U.S. 605

(1967); see Billions v. State, 399 So.2d 1086 (Fla. lst DCA 1981);

Shue v. State, 386 So.2d 1256 (Fla. 5th DCA 1980); Evans v. State,

163 So.2d 520 (Fla. 2nd DCA 1964). A defendant's right to the effective

« 36 <

of a capital trial, due to the severe and final nature of the death

penalty, and due to the special interest of both the defendant and

society in ensuring a reliable sentencing determination in such cases.

See Gardner v. Florida, supra; Beck v. Alabama, 447 U.S. 625, 639

(1980); Lockett v. Ohio, 438 U.S. 586, 605 (1978); Woodson v. North

Carolina, 428 U.S. 280, 305 (1976) (plurality opinion); Blake v. Zant,

513 F.Supp. 722, 779 (S.D. Ga. 1981); Voyles v. Watkins, 489 F.Supp.

901, 910-12 (N.D. Miss. 1980); State v. Myles, 389 Sc.2d 12, 30 (La.

1979). In Florida, and in the federal Fifth Circuit (and, presumably,

in the new Eleventh Circuit as well), the standard for evaluating the

constitutional adequacy of counsel's performance is whether the

attorney was reasonably likely to render and did render reasonably

effective counsel based on the totality of the circumstances.?°

Vagner v. Wainwright, 398 So.2d 448 (Fla. 1981); Meeks v. State, 382

So.2d 673 (Fla. 1980); United States v. Gray, 565 F.2d 881 (5th Cir.

1978); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974).

As a general rule, a claim of ineffective assistance of counsel

cannot be raised on direct appeal. See e.g. State v. Barber, 301 So.2d

7 (Pla. 1974); Gibson v. State, 351 So.2d 948 (Fla. 1977); Kidwell

v. State, 394 So.2d 526 (Fla. 3rd DCA 1981). The present case, for

two related reasons, is an exception. First, the primary focus of

1 ,

Onlake v. Zant, supra, at 779, and Voyles v. Watkins, supra, at 910,

indicate that this standard is to be applied with particular care in

Capital cases. See also State v. Myles, supra, at 30. Washington v.

Watkins, 655 F.2d 1346, 1356 (5th Cir. 19 , rejects the proposition,

attributed to Voyles, that a stricter standard of effective assistance

applies in capital cases. Appellant in the present case is satisfied

with the standard of "counsel reasonably likely to render, and render-

ing, reasonably effective assistance", but would note that the penalty

phase in a capital case is sui generis among sentencing proceedings,

and preparation which might be quite reasonable for an ordinary senten-

cing hearing may be grossly inadequate for a capital trial's penalty

phase. See Valle v. State, 394 So.2d 1104, 1008 (Fla. 1981).

=. 37 «

the issue presented here concerns deprivation of the Opportunity to

be represented by reasonably effective counsel, caused by an adverse

ruling of the trial court; i.e. the court's refusal to grant a

continuance of the penalty phase despite his awareness that counsel

was completely unprepared. (And thus not reasonably likely to render

effective assistance.) This is essentially a due process issue which

can be, and often has been, considered on direct appeal. See Valle v.

State, 394 So.2d 1004 (Fla. 1981); Harley v. State, So.2d (Pla.

lst DCA 1981) (Case No. AC-385, opinion filed December 18, 1981) (1982

FLW 1}; Meadows v. State, 398 So.2d 694 (Fla. 2nd DCA 1980); Kimbrough

v. State, 352 So.2d 925 (Fla. lst DCA 1977); Grizzell v. State, 189

So.2d 367 (Fla. lst DCA 1966); Hawkins v. State, 184 So.2d 486 (Fla.

lst DCA 1966); Brooks v. State, 176 So.2da 116 (Fla. lst DCA 1965).

In the second place, the rule set forth in State v. Barber, supra, is

that a claim of ineffective assistance of counsel cannot be raised

for the first time on direct appeal, as it is a matter which has not

previously been ruled on by the trial court. In the present ase,

the trial judge considered the defendant's allegations of ineffective

assistance of counsel as part of an amended motion for new trial.

The court specifically ruled on those allegations in denying the motion,

for the express purpose of preserving the issue for appellate review

(ST-6-7). Moreover, defense counsel's representation, in moving for

a continuance, that he was unprepared for the penalty phase (which

amounted to an admission that he was not reasonably likely to render

seasonabiy effective assistance) placed the trial court on notice of

that aspect of the ineffective assistance claim. His denial ofa

continuance, in that context, operated as a ruling on the issue.

As a general principle, the decision to grant or deny a

motion for continuance is a discretionary ruling, but where the trial

court's refusal to grant a continuance deprives a defendant of his

right to be represented by adequately prepared counsel, that dis-

- cretion has been abused. See Valle v. State, supra; Harley v. State,

supra; Meadows v. State, supra; Kimbrough v. State, supra; Grizzell

v. State, supra; Hawkins v. State, supra; Brooks v. State, supra.

Here, it might be argued that it was not the court's ruling that

forced the defendant to proceed with unprepared counsel, but rather

it was the attorney's own failure, for which he offered no explana-

tion, to investigate potential sources of mitigating evidence which

caused the problem. In other words, it appears to have been his

own fault. However, as the trial judge admonished the defendant at an

earlier juncture in the trial ". . . in this case Richard Sherman

Williams is on trial, not Mack S. Futch" (T-559). Similarly, it is

Richard Sherman Williams, and not Mack S. Futch, who faces execution.

In Hawkins v. State, supra, at 488, the appellate court soundly

rejected the state's contention that, in such circumstances, "the

derelictions [of defense counsel] must be visited on the defendants."

See also Meadows v. State, supra, at 695 (trial court committed rever-

sible error in denying continuance where, while the court was "under-

Standably exasperated by a feeling that it .. . was being manipulated

by a 'ring-wise' defendant," the court was aware on the morning set

for trial that no one had prepared a defense for the accused);

Kimbrough v. State, supra (trial court abused discretion in denying

continuance where the assistant public defender who tried the case

had stated that he was completely unprepared for trial, notwithstanding

- 39 -

TL ene

. the fact that a different assistant public defender had previously

announced that he was ready for trial). The appellate court in

Kimbrough said:

The record of the trial proceedings reflects

a valiant effort by defense counsel to repre-

sent his client. He extensively cross-examined

the state's prosecution witnesses pertaining to

the events involving the false imprisonment

and battery charges. Yet he called no witnesses

other than the defendant. And the record in our

Opinion does not refute counsel's allegations

that he was unprepared for trial, thus depriving

defendant of adequate representation. The error

no doubt could have been corrected had the court

insisted that the assistant public defender who

represented he was prepared for trial go forward

with his defense. Nevertheless that attorney

Gid not assist him at trial, and a defendant

should not be bound to his prejudice by the

expressions of an attorney he is prepared, who

then abandons his client and apathetically

entrusts him to the care of another attorney

who knows nothing of the case. A defendant's

judicial fate may not depend upon such capricious

circumstances.

Kimbrough v. State, supra, at 928.

The import of these decisions is that the trial court cannot

deny a continuance, where he knows or should know that this will

leave the defendant's case in the hands of unprepared counsel, simply

on the ground that it is counsel's own fault he's unprepared. Sanc-

tions, in this situation, should be imposed against the attorney if

appropriate, and not against the defendant. The court might, for

example, hesitate to appoint that attorney to handle any more capital

trials. But to require a defendant in a Capital case to submit the

question of his life or death to a jury and judge, with the assis-

tance of an attorney who doesn't have a clue as to what, if any,

mitigating evidence might be available, violates elemental principles

of due process and fundamental fairness, as well as the right to

- 40 - °

F-9

I rrr

effective assistance of counsel.

A number of alternatives were open to the trial court to

protect the defendant's right to effective counsel in the penalty

phase. Fla. Stat. §921.141(1) provides that the penalty proceeding

7 in a capital case shall be conducted "as soon as practicable" after

conviction or adjudication of guilt. While it may be “practicable”

to conduct the penalty phase with an unprepared defense lawyer, it

is not constitutional. However, if inquiry had revealed that defense

counsel needed, say, a week or ten days to become prepared, the

penalty phase could have been conducted then,before the same jury.

See Downs v. State, 386 So.2d 788, 794 (Fla. 1980) (four day gap

between guilt and penalty phases). If properly instructed to avoid

outside influences, the jury would not need to be sequestered. Downs

v. State, supra. Another possibility would have been to impanel a

special jury to determine the issue of penalty, pursuant to Fla. Stat.

§921.141(1). See Messer v. State, 330 So.2da 137, 142 (Fla. 1976).

The prosecutor urged the court to proceed with the penalty phase

as scheduled, because he was prepared and had his witnesses ready.

As it turned out, he had only one witness - a local witness - who was

the inmate records supervisor at the prison, and who brought the

defendant's commitment papers to court. Obviously, the state's case

would not have been prejudiced by a continuance. As for inconvenience

to the jurors or the expense of impaneling a special jury, those

are considerations which might well warrant sanctions against the

unpeeeness attorney, if he could not justify his conduct. They are

not considerations which warrant denial of a continuance, in the face

of the attorney's uncontroverted allegation that he is in fact

- 41 -

F-10

= en ee

‘unprepared. Kimbrough v. State, supra; Meadows v. State, supra;

Hawkins v. State, supra.

Blake v. Zant, 513 F.Supp. 772 (S.D. Ga. 1981) involved habeas

corpus petitions filed by three Georgia prisoners who had been

sentenced to death. Two of them, Blake and Burger, alleged, inter

alia, that they had received ineffective representation in the penalty

phase of their trials. With respect to Burger's claims, the District

Court emphasized that the attorney made a strategic decision, after

some background investigation, not to present any character evidence,

in order to retain closing argument, and in order to avoid revealing

to the jury Burger's prior violent conduct and his generally “sadistic”

attitude. The District Court concluded that the attorney made a

necessarily difficult tactical choice with at least some awareness

of the relevant faéts, and then carried out his strategy in a manner

which clearly met reasonable professional standards. Blake v. Zant,

supra, at 797. With respect to Blake's claims, in contrast, the

attorney's failure to present mitigating evidence was not a matter

of strategy, but lack of preparation. Blake's attorney Mr. Haupt

was an experienced trial lawyer who had defended as many as a hundred

Capital cases. Mr. Haupt customarily did not prepare to present miti-

gating factors in the event of a conviction, because he did not expect

or plan for his client to be convicted. In Blake's ehas, when the

jury retired to deliberate, Mr. Haupt could "feel" that a guilty

verdict was in the offing, so he asked the trial judge for a contin-

uance to prepare for the penalty phase. The prevailing practice in

the county at that time was to proceed directly to the penalty phase,

and Mr. Haupt was informed that no continuance would be granted.

- 42 -

F-1l

Thus, the District Court noted, Mr. Haupt was forced “by his own

lack of foresight and trial policies which have since been abandoned"

to proceed to the penalty phase with no prior preparation or consider-

ation whatsoever. Blake v. Zant, supra, at 779. "No witnesses had

been interviewed and no thought given to how counsel might show the

jury ‘something good' about Mr. Blake.” Blake v. Zant, supra, at 779.

There was no reason to conclude that Mr. Haupt did not make a reason-

ably cogent argument before the jury, but, due to his lack of prepar-

ation, he "in no way used or even considered additional evidence

which might have been available to support the defendant's cause.”

Blake v. Zant, supra, at 780. The District Court observed:

Such a performance hardly comports with

the notion that the sentencing phase be

in fact a distinct procedure where the

jury's attention is focused not just on

the circumstances of the crime, but also

on “special facts about this defendant

that mitigate against imposing capital

punishment (e.g., his youth, the extent

of his cooperation with the police, his

emotional state at the time of the crime)"

Gregg v. Georgia, 428 U.S. 153, 197, 96

S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1975)

(Stewart, Stevens, Blackmun, Powell, JJ).

Counsel's failure to make distinct pre-

paration here is particularly signifi-

cant in light of the fact that "much of

the information that is relevant to the

sentencing decision may have no relevance

to the question of quilt, or may even

be extremely prejudicial to a fair

determination of that question." Id., at

190, 96 S.Ct., at 2933.

Blake v. Zant, supra, at 780.

. The District Court concluded that Blake was entitled to a

new trial on the issue of penalty as a result of the ineffective

representation rendered by coumsel. See also Voyles v. Watkins,

489 F.Supp. 901, 912 (N.D. mae: 1980); cf. Martin v. State, 363 So.2d

403 (Fla. 4th DCA 1978).

In the instant case, as in Blake, defense counsel did not

forego presentation of mitigating evidence as a matter of strategy

or judgment, but because his own lack of preparation left him no

alternative. Whether his jury argument was “cogent” is a matter of

Opinion, but the glaring lack of evidentiary support for the two

mitigating circumstances he asked the jury to find is a matter of

fact.

One final point needs to be addressed. What of the fact that

the defendant declined to testify in his own behalf in the penalty

phase, and subsequently stated that he preferred a death sentence to

a sentence of life imprisonment? Does this render the court's

denial of a continuance, and defense counsel's ensuing inability to

present any mitigating evidence, “harmless error"? Appellant submits

that it clearly does not. First, a defendant who is so inclined

cannot "choose" the death penalty as a matter of right. See Goode

Vv. State, 365 So.2d 381, 384 (Fla. 1978). There is also a strong

societal interest in a fair and accurate Getermination of whether

the death penalty is appropriate. See Beck v. Alabama, supra; Gardner

v. Florida, supra. The defendant's decision not to testify in the

penalty phase does not signify that he did not want to submit any

mitigating evidence to the jury. During the guilt phase, for example,

the defendant also declined to testify, but he objected strenuously

to counsel's (tactical, in that instance) decision not to call other

witnesses. By the time the defendant's statements in the PSI and at

sentencing were made, to the effect that he preferred the death

penalty to life at FSP, the jury's death recommendation had already

- 44 -

been returned. The defendant may simply have felt by then that @

death sentence was a foregone conclusion anyway. The defendant's

stated reason for asking for the death penalty is also of interest -

that "when on death row he has television in his cell, radio, gets

out to use the yard, has canteen privileges, and visits once a week"

(S.R. Nov. 19, 1981, p.2). In this connection, the PSI also states,

under the heading of “Interests and Activities": "Subject related

that there is nothing to do in confinement. He relates that he

occasionally plays games with himself” (S.R. Nov. 19, 1981, p.5).

Thus the defendant's request for the death penalty may say more about

the “possible effect" of long-term close confinement than counsel's

argument to the jury did. The defendant's need for, and right to,

effective counsel in the penalty phase was in no way obviated by his

subsequent statements that he preferred the death penalty to a life

sentence.

A new trial on the issue of penalty is required.

IV CONCLUSION

Based on the foregoing argument, reasoning, and citation of

authority, appellant respectfully requests that this Court vacate

the judgment and sentence of death and remand for a new trial [Issue

I]. In the alternative, appellant respectfully requests that this

Court vacate the death sentence and remand for a new advisory senten-

cing proceeding [Issue II].

Respectfully submitted,

Pd . . eEeVon7~ al ”

“STTiey Lo fat

STEVEN L. BOLOTIN

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

ATTORNEY FOR APPELLANT

- 65 -

initial brief, at pages 28-30.

ISSUE II

THE TRIAL COURT ABUSED ITS DISCRETION

BY REFUSING TO GRANT A CONTINUANCE OF

THE PENALTY PHASE WHEN DEFENSE COUNSEL

REPRESENTED THAT HE WAS UNPREPARED TO

PRESENT ANY EVIDENCE OF MITIGATING

CIRCUMSTANCES; THEREBY DEPRIVING THE

DEFENDANT OF HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL GUARANTEED BY

THE SIXTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION.

Lacking any substantive basis to defend the trial court's

refusal to continue the penalty phase, in the face of

defense counsel's uncontroverted representations that he was

unprepared to present any evidence of mitigating circumstances,

the state relies on hypertechnical, and largely irrelevant, pro-

cedural arguments.

The state asserts that this Court cannot consider the issue

arising from the trial court's denial of the continuance, because

defense counsel did not object after the trial court's ruling

(AB-12-13). Defense counsel did inform the trial court that he

was “unable and unprepared" to proceed with the penalty phase

(T-628), and requested a continuance to permit the defendant

"an opportunity to prepare whatever mitigating circumstances

might be appropriate to submit to the jury" (T-628) (thus indica-

ting that counsel did not even know what mitigating circumstances

there might be). After the prosecutor asked the court to proceed

with the penalty phase on the ground that he was prepared, and

on the ground that defense counsel knew all along that the state

-6-

APPENDIX G

G-1l

would be secking the death penalty, defense counsel repeated that

he was unprepared, and again urged that “the only fair thing to

do would be to give the defendant an opportunity to assemble

whatever mitigating circumstances are available to him for presen-

tation to the jury" (T-629). The trial court said he would

take the motion under advisement during the noon recess, but that

it would be well for both parties to assume that the penalty

phase would proceed as scheduled (T-630). At the beginning of

the penalty phase, the court announced his ruling denying a

continuance.

Incredibly, the state argues that the trial court was not

placed on notice that “error [might] be imminent" (AB-13). The

state is of the view that if counsel had said "I object” when

the court announced his ruling denying the requested continuance,

only then would the court be on notice “of the possibility of error"

(AB-13). The state cites the inapplicable case of Lucas v. State,

376 So.2d 1149 (Fla. 1979),in which defense counsel began to

point out that the name of a prospective witness had not been

disclosed in discovery, the trial court (incorrectly) stated that

rebuttal witnesses need not be furnished, and defense counsel,

deferring to the court's interpretation of the lew, retceined

from making the objection he was apparently about to make. In

Lucas, no ruling was requested, or made. In the present case,

defense counsel requested a continuance of the penalty phase, and

stated a clear and compelling reason why a continuance was

necessary, i.e. that he was completely unprepared to proceed.

-J-

The court ruled on the requested continuance, denying it. Any

further objection would clearly have been futile. See Simpson

v. State, So.2d (Fla. 1982) (case no. 49,681, opinion

filed April 8, 1982) (1982 FLW 169); Thomas v. State, So.2d

(Fla. 1982) (case no. 60,477, opinion filed March 25, 1982)

(1982 FLW 148); Henry v. Wainwright, 661 F.2d 56, 58 (Sth Cir.

1981). Moreover, a formal objection at that point would have

added not one iota to the trial court's understanding of the

nature of the putative error or his opportunity to cure it. See

Castor v. State, 365 So.2d 701, 703 (Fla. 1978)s4 Williams v.

State, So.2d (Fla. 1982) (case no. 58,704, opinion filed

May 13, 1982). “Magic words" are not necessary to preserve an

issue for appellate review. See Williams v. State, supra (slip

opinion, p.3).

The state next interposes numerous irrelevant procedural

requirements which govern (or used to govern) a motion for contin-

uance on grounds relating to the absence of a known witness or

witnesses. Fla. Stat. §916.05 [superseded by Fla.R.Cr.P. 3.190

(g) as of January 1, 1968, and repealed in 1970] stated:

An application for continuance on

the ground that a witness is absent

shall state:

(1) The name and residence of the

witness and that the witness is

absent;

(2) The facts expected to be proved

by the witness;

(3) That the testimony of the

witness is material and not merely

- 8 -

G-3

cumulative, and that the facts to be

proven by the witness cannot be proven

by any other available witnesses;

(4) Whether the witness is a legal

resident of this state;

(5) Facts showing that due diligence

has been used to obtain the witness,

and that a service of a summons on

the witness has been attempted, within

a reasonable time before trial, that

the witness could not be found;

(6) Facts showing that the applicant

expects to be able to procure the

attendance of the witness at a speci-

fied time;

(7) That the witness is not absent

through the procurement, connivance,

or consent, either directly or indi-

rectly, of the applicant;

(8) That the applicant believes that

the cause cannot be tried with justice

to the party without the evidence of

such witness;

(9) Facts showing when the witness

left the jurisdiction of the court;

whether his absence is temporary

or permanent, and when he is expected

to return;

(10) Facts showing when and how the

applicant learned that the witness

would testify as alleged in the motion;

(11) If the witness is not expected to

return, then the filing of interroga-

tories to be propounded to such absent

witness, and a request that a commis-

sion be issued to take the deposition

of such witness, if the applicant is

the defendant;

(12) That the witness will be present

at a designated time, not later than

the next term of court, or that his

deposition will be obtained (if appli-

cant is se

By their terms, the above statutory requirements applied to

motions for continuance where the identity, and the substance of

the testimony, of a specific absent witness or witnesses were

known. Even assuming arguendo that the case law developed under

the statute retains precedential force under Fla.R.Cr.P. 3.190(g)

[which, unlike §916.05, does not set forth specific allegations

necessary to an application for continuance on the ground that

a witness is absent], those requirements are patently inapplicable

where the continuance is sought on the ground that cornsel is so

unprepared that he does not know who the witnesses might be or

what they might have to say.

To the extent that the motion for continuance as presented

by defense counsel may have failed to comply with procedural

requirements of Rule 3.190(a) and (g), those formal deficiencies

would not justify denial of the motion under the circumstances of

this case. In Shepherd v. State, 108 So.2d 494, 497 (Fla. lst

DCA 1959), the appellate court said:

It is true that in the case now

considered the motion for post-

ponement or continuance did not

technically comply with the require-

ments of our statute with respect

to form or verification, which

failure constituted the basis of the

trial court's denial thereof. It

does not follow that such technical

deficiencies mandatorily required

denial of such a motion if under

the circumstances its allowance

is necessary to insure a4 fair trial.

When it is shown that in consequence

of inadvertence of counsel, or other

cause, the rigid enforcement of rules

of procedure — defeat the great

object for which they were established,

it is the trial court's duty to so

relax them (when it can be done without

injustice to any) as to make them sub-

serve their true purpose, which is to

promote the fair administration of

justice.

In the present case, given defense counsel's utter lack

of preparation which was both admitted and uncontroverted, a

continuance of the penalty phase was absolutely necessary to

permit a fair determination of whether the death penalty should

be imposed. The prosecution would not have been prejudiced by

a continuance; as noted in appellant's initial brief, the state's

only witness in the penalty phase was the records supervisor at

Florida State Prison, which is located within the county where

the case was tried.

Finally, it should be noted that the trial court can grant

a continuance on its own motion, as well as on motion of the defen-

dant or the state. Fla.R.Cr.P. 3.190(g)(2). Under the circum-

stances of this case, proper exercise of discretion clearly

required the court to postpone the penalty phase, whether on

motion of the defense or on his own motion, once he became

aware that counsel was unprepared and was thus not reasonably

likely to render constitutionally adequate representation.

The state appears to concede that the defendant did not receive

effective assistance of counsel in the penalty

- ij -

phase (aB-19),4 but argues that since it was apparently counsel's

own fault that he was unprepared, a continuance need not have been

granted. Appellant will rely on the arguments advanced in his

initial brief, at pages 39-44, to show that while fault may be

relevant to what, if any, sanctions could appropriately have been

taken against the attorney, it is completely beside the point in

determining whether a continuance is necessary to preserve the

defendant's constitutional right to counsel reasonably likely

to render effective assistance. One comment in the state's brief

requires specific response. The state asserts that none of the

cases relied on by appellant "demonstrate that the trial court

cannot deny a continuance on ithe ground that it is counsel's own

fault he is unprepared . .." (AB-21). Among the cases the state

seeks to distinguish are Hawkins v. State, 184 So.2d 486 (Fla.

lst DCA 1966); Kimbrough v. State, 352 So.2da 925 (Fla. lst DCA 1977);

and Meadows v. State, supra. In Hawkins v. State, supra, at 488,

‘the state asserts in its brief that "Gregg [defense counsel in

Meadows v. State, 389 So.2d 694 (Fla. 2nd DCA 1980)] was ineffective

due to the action of the court, not due to his own inaction or lack

of diligence over an extended period of time as in the case at bar"

(AB-19). In point of fact, the appellate court in Meadows attributed

the fault neither to Gregg nor the trial court, but rather to the

defendant's former attorney from Chicago, and possibly to the defen-

dant himself. Nevertheless, the appellate court emphasized that the

trial court knew that Gregg had previously withdrawn from the case

because the Chicago lawyer had prevented him from assisting in pre-

paring a defense, and that the Chicago lawyer had now been fired

for failing to prepare a defense. "Thus, on the morning set for

trial the court knew that no one had prepared a defense for the

accused";under these circumstances the denial of a continuance was

an abuse of discretion. Meadows v. State, Supra, at 695.

- 12 -

the appellate court said:

The trial judge was squarely confronted

with the representation by the attorney

he had appointed to represent these

defendants that he, the attorney, was not

prepared to go to trial. The State did

not did not controvert the Public

Defender's representation that he was not

adequately prepared to defend the defen-

dants. The State's position is that the

‘ derelictions, if any, on the part of the

Public Defender in this uncontroverted

part of the record must be visited upon

the defendants. Such position cannot be

sustained. It is elemental that an

indigent's right to counsel necessarily

incorporates the right to effective assis-

tance of counsel and that anything less

renders the ensuing trial a farcical and

mockery proceeding.

In Kimbrough v. State, supra, and Meadows v. State, supra,

the blame for the trial attorney's lack of preparation was placed

primarily on the attorney who had previously handled the case.

In Kimbrough, both attorneys were assistant public defenders

working out of the same office. In Meadows, the court surmised

that some of the difficulties might be attributable to gamesman-

ship on the part of the defendant. In each of these cases, however,

it was the fact of the attorney's lack of preparation, and not its

cause, which controlled the result. >

In a recent decision arising from a Florida case, the Fifth

Circuit Court of Appeals discussed the issue of constitutionally

adequate preparation for the penalty phase of a capital trial.

In Washington v. Strickland, F.2d (5th Cir. 1982) (case

no. 81-5379, opinion filed April 23, 1982), the appellate court

said:

«3% =

The district court, reasoning by

analogy to the duty to investigate

which we have recognized as an

essential dimension of effective

representation before and during

the guilt phase of a criminal

prosecution, held that counsel

representing a convicted client at

a sentencing proceeding has a

Similar duty ‘to make an independent

search for witnesses with knowledge

= of the defendant's character, dis-

position to commit crimes [and]

extenuating circumstances' in order

to develop evidence which might

mitigate punishment. We agree.

‘It is the duty of the lawyer to

conduct a prompt investigation of

the circumstances of the case and

explore all avenues leading to facts

relevant to guilt and to a degree of

guilt or nalty.' Davis v. Alabama,

supra, at i317 - - +» (Emphasis added.)

Counsel's duty to conduct an indepen-

dent investigation and develop infor-

mation about his client's case extends

‘as fully to the dispositional phase

of the proceedings as to pretrial

preparation and courtroom advocacy.'

United States v. Pinkney, 551 F.2d

1241, 1246 (D.C. Cir. 1976).

In capital cases, counsel's preparation

for the sentencing as well as the guilt

phase of the prosecution is especially

important because of the nature and

purpose of the distinctive sentencing

procedure used in capital cases.

(Slip opinion, at 15028-29)

The Court in Washington v. Strickland, supra, stressed the

fact that the U.S. Supreme Court cases which have upheld the

constitutionality of death penalty statutes have done so largely

on the basis of the “opportunity afforded the defendant to

- 14 -

introduce character evidence and other types of evidence of

personal circumstances which might influence the sentencer to

be merciful” (Slip opinion at 15029). See Proffitt v. Florida,

423 U.S. 242, 251 (1976); Gregg v. Georgia, 428 U.S. 153, 189-90,

206 (1976); Jurek v. Texas, 428 U.S. 262, 276 (1976). Contrast

Locxett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, U.S.

, 102 S.Ct. 867, 71 L.Ed.2d (1982).

In the context of a capital sentencing

proceeding, in which the integrity

and validity of the decision-making

process are dependent on the decision-

maker's access to a wide variety of

information concerning the defendant,

we agree with the district court that

‘it is reasonable to require counsel

to make independent investigation of

the mitigating circumstances for

sentencing and not to rely merely on

the cross-examination of witnesses

at a sentencing hearing and espousement

of defendant's unsupported view of the

events.' Lockett indicates that this

obligation extends not only to evidence

tending to establish statutory mitiga-

ting circumstances but also to evidence

of nonstatutory mitigating circumstances.

Washington v. Strickland, supra (slip

opinion, at 15030).

The Washington Court observed that the duty to investigate

is not limitless, and that counsel is not required to “pursue

every path until it bears fruit in the form of a morsel of

evidence in mitigation or until all conceivable hope withers."

Nor is counsel precluded from making an informed tactical decision

not to use certain mitigating evidence.

@ 35 «

G-10

aes Counsel's investigation need only

. be reasonable under the circumstances,

and in evaluating the reasonableness

of counsel's efforts, we look at the

guality of his overall inquiry into

the availability of evidence in

mitigation. The purpose of the inquiry

is to enable counsel to discover the

kind of evidence in mitigation avail-

able and to make an informed and

reasonable evaluation with his client

of the advisability of using such

evidence. If counsel's overall inquiry

is sufficient for that purpose, then,

insofar as the adequacy of his inquiry

or investigation is concerned, he has been

effective.

peshengion v Suackiane, supra; (slip

Opinion, at

In the present case, the defense counsel made no inguiry

into the availability of mitigating evidence. To his credit,

he forthrightly informed the trial court that he was unprepared.

Despite being on notice that counsel was not reasonably likely

to render reasonably effective assistance in such a (literally)

life - or - death matter, the court refused to continue the

penalty phase. This ruling was a palpable abuse of discretion,

which seriously jeopardized the defendant's right to a reasoned

determination of whether the death penalty should be imposed.

Cf. Durcan v. State, 350 So.2d 525, 526 (Fla. 3rd DCA 1977);

Cooper v. State, 336 So.2d 1133 (Fla. 1976) (cited in the state's

brief, at p. 14, 16). A new trial on the issue of penalty is

constitutionally required.

- 16 - \

6-11

ORIGINAL

NO.

IN THE —

SUPREME COURT OF THE UNITED STATES ~ = eee

October Term, 1983 JAN

OFr.CE G

SUPREME

RICHARD SHERMAN WILLIAMS,

Petitioner,

Vv.

STATE OF FLORIDA, 83- 60 £8

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

RICHARD SHERMAN WILLIAMS, petitioner in the above-styled

cause, hereby moves this Court, by his undersigned counsel, for

leave to proceed in forma pauperis and in support hereof shows

as follows:

1. An affidavit signed by petitioner is attached hereto,

wherein petitioner sets forth the fact that he is indigent and

unable to pay or give security for the fees and costs attendant

to this proceeding.

2. Petitioner was adjudged insolvent for the purpose of

appeal in the Florida Supreme Court and was represented there

by appointed counsel.

WHEREFORE, it is respectfully requested that petitioner be

permitted to proceed in forma pauperis in this matter.

Respectfully submitted,

Sven L fobt.,

STEVEN L. BOLOTIN

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

ATTORNEY FOR PETITIONER

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

RICHARD SHERMAN WILLIAMS,

Petitioner, 8 S - 6 Q 4 8

STATE OF FLORIDA,

vs.

Respondent.

I, RICHARD SHERMAN WILLIAMS, being duly sworn, depose

and say, in support of my motion for leave to proceed without

being required to prepay costs or fees and & proceed in forma

pauperis:

1. I am the petitioner in the above-entitled case.

2. Because of my poverty I am unable to pay the costs

of said cause; I own no real or personal property; I am incar-

cerated and receive no income from earnings.

3. I am unable to give security for said cause.

4. I believe that I am entitled to the redress I seek

in said cause.

STATE OF FLORIDA,

COUNTY OF Brad fi rg

The foregoing affidavit of RICHARD SHERMAN WILLIAMS was

subscribed and sworn to before me this ye day of Oe e

1983.

oe Wee

‘PUBLIC, STATE OF FLORIDA

MY COMMISSION EXPIRES:

NOTARY PUBLIC, STATE OF FLORIDA

My Commission Expires Oct. 4, 1988

|RECEIVED

JAN 16 1984

; 7 = OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES | S/PREME COURT, US|

NO.

October Term, 1983

RICHARD SHERMAN WILLIAMS, S 3-60 ve 4

ORG RAL Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

“2 AFFIDAVIT IN SUPPORT OF MOTION TO

PROCEED ON APPEAL IN FORMA PAUPERIS

I, RICHARD SHERMAN WILLIAMS, being first duly sworn,

depose and say that I am the Richard Sherman Williams, in

the above-entitled case; that in Support of my motion to

proceed on appeal 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 to give security therefor; that I believe I am entitled

i to redress; and that the issues which I desire to present

: On appeal are as stated in the Petition.

I further swear that the responses which I have made

to the questions and instructions below relating to my

ability to pay the cost of prosecuting the appeal are true.

1. Are you presently employed?

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

your salary or wages per month and give the

name and address of your employer.

fe If the answer is no, state the date of your

last employment and the amount of the Salary

and wages per month which you received.

‘None.

2. Have you received within the past twelve months any

income from a business, profession or other form of self-em-

ployment, cr in the form of rent payments, interest, dividends,

or other source? O

a. If the answer is yes, describe each source of

income and state the amount received from each

during the past twelve months.

3. Do you own any cash or checking or savings account?

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

the items owned. $ ¢ 50

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

automobiles, or other valuable property (excluding ordinary

household furnishings and clothing)? NO

a. If the answer is yes, describe the property and

state its approximate value.

5. List the persons who are dependent upon you for sup-

port and state your relationship to those persons. Nene

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for

perjury.

STATE OF FLORID

COUNTY OF

1984.

The foregoing affidavit of Richard Sherman Will was

subscribed and sworn to before me on this {0_ day ot Jann

BE ae Se:

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