# Petition — Richard Sherman Williams v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1740%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1109 ## Text re] OC dS Ea ee ee) : - x N 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. a 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 i 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. Ce 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 f ct it f } fi pESE HE itt 4 3 2 e E A yl 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 ; N - 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 a § E E a F f -§ nH th | F : iF 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 i f “| E > ' w 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 Bg uiliteed iH RE ‘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. ; 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. a 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 : c 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 1 d » s. ag at s ° 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 ‘ 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. - 24 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, 24 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 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: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1740%3A1. Public record. Not legal advice.