Petition — HENRY v. WAINWRIGHT (No. 83-6430)

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ORIGINAL

: 83-6430 (RECEIVED

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IN THE Oriive vv arte ULERK

SUPREM™ “ONET, US.

———_—

SUPREME COURT OF THE UNITED STATES

October Term, 1983

JAMES DUPREE HENRY,

Petitioner,

vs.

LOUIE L. WAINWRIGHT, Secretary,

Plorida Department of Corrections,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RICHARD L. JORANDBY

Public Defender

CRAIG S. BA”NARD*

Chief Assistant Public Defender

15th Judicial Circuit of Plorida

224 Datura Street -- 13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

Counsel for Petitioner

*Attorney of Record

QUESTIONS PRESENTED

1. Whether the Eighth and Pourteenth Amendments and the

Court's decision in Enmund v. Florida permit the imposition of a

death sentence for an offense involving an accidental death which

happened during the commission of a felony where no lethal force

was employed?

2. Whether a capital sentencing jury in Florida, consisten-

tly with the Eighth and Fourteenth Amendments, may be permitted

to base a death verdict sclely upon nonstatutory aggravating

factors where no other Procedures were employed that would

Substitute for the finding of a Statutory aggravating

circumstance?

TABLE OF CONTENTS

QUESTIONS PRESENTED POCAOROE SURESH OEOPEOOS ECOSOC COC oOS i

TABLE OF AUTHORITIES SP COSOCESCSSESEDSED OER ESSe coco Cee iii

CITATIONS TO OPINIONS BELOW COSCON OES SE SESODdOCSeCCCS 1

JURISDICTION O° SRORS FEDER SEEORE ERED SHE DEE W S00 % 5600 < 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED SET NS SRA Clee eS CPN CO OEMS SS S4.6 66% 6 6 646%

STATEMENT OF THE CASE 2 eae SP ere P CSCC C4660 60 68 ©

Ra The Offense eel ie Nt iadinig sd oh Te LY eo 2 ee

yw NH NH BW

B. The Trial Sh OPSUOROPOCERRNONSOSSO CSE Sbéccccrc

C. The Direct Appeal eee ee LT Le eTT Tee +

D. The Post-Appeal PRONE Sean koocccccsccec 4

REASONS FOR GRANTING THE WRIT Se a 5

I. The Extreme Penalty Of Death Is Impermissible

Under the Eighth And Fourteenth Amendments For

An Offense Involving An Accidental Death

Occurring During A Felony Where No Lethal Force

Was Employed COCCOCOCOHOOOD OCHO OCOS Coereccceccer 5

II, The Eighth And Fourteenth Amendments Were

Violated Because Mr. Henry's Jury Was Permitted

To Base A Death Verdict Solely Upon Non-

Statutory Aggravating Pactors and Because There

Were No Other Confinements Of the Jury's

Sentencing Discretion To Substitute Por That

"Constitutionally Necessary” Safeguard ...... 12

A. The Jury Was Permitted To Base Its Death

Verdict Solely On Nonstatutory Aggravating

Factors OC SOE HEPEBREUY SHRI COREORD OS C06 coe ce 13

B. The Court of Appeals Misapprehended The

Critical Role Of The Jury In Plorida

Capital Sentencing eeeeeeeeeeeeeeeseeseses 14

C. There Was No Other Confinement Of The

Jury's Sentencing Discretion Secccccccvces 19

CONCLUSION COCCORIMHS ORS SSOOESOG SOOT 008 ObS0S 646666606 22

APPENDIX A: The Judgment Below SCOCCOCHCHC HCCC OC COOL OOS la

APPENDIX B: Order on WENONEORD es cdeabdesecé > ccccecee lb

APPENDIX C: Statutory Provisions DUE Keebccccece le

TABLE OF AUTHORITIES

CASES CITED

Adams v. State, 341 So.2d 765 (Fla. 1977)

Barclay v. Florida, __U.S.__, 103 S.Ct. 3418 (1983)

Chambers v. State, 339 So.2d 204 (Pla. 1976)

Cooper v. State, 336 So.2d 1133 (Fla. 1976)

Dobbert v. Florida, 432 U.S. 282 (1977)

Drake v. Francis, F.2d , No. 83-8047

(llth Cir. Feb. 25, 1984)

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

Enmund v. Florida, 458 U.S. 782 (1982)

Fisher v. United States, 328 U.S. 463 (1946)

Furman v. Georgia, 408 U.S. 238 (1972)

Godfrey v. Georgia, 446 U.S. 420 (1980)

Gregg v. Georgia, 428 U.S. 153 (1976)

Harich v. State, 437 So.2d 1082 (Pla. 1983)

Knight v. State, 338 So.2d 976 (Pla. 1976)

Lockett v. Ohio, 438 U.S. 586 (1978)

Maggard v. State, 399 So.2d 973 (Fla. 1981)

McCampbell v. State, 421 So.2d 1072 (Pla. 1982)

McCaskill v. State, 344 So.2d 1276 (Fla. 1977)

Messer v. State, 330 So.2d 142 (Fla. 1976)

Mullaney v.Wilbur, 421 U.S. 684 (1975)

Proffitt v. Florida, 428 U.S. 242 (1976)

Pulley v. Harris, U.S. , 104 S.Ct. 871 (1984)

Richardson v. State, 437 So.2d 1091 (Pla. 1983)

Rose v. State, 425 So.2d 521 (Fla. 1983)

Ross v. Harper, 716 F.2d 1528 {llth Cir. 1983)

Spaziano v. Plorida, No. 83-5596

cert. granted Jan. 9, 1984

Tedder v. State, 322 So.2d 908 (Pla. 1975)

Wainwright v. Goode, U.S. , 104 S.Ct. 378 (1983)

Zant v. Stephens, U.S. , 103 §.Ct. 2733 (1983);

- iii ~

14, 19

13, 14, 15

12, 13, 19

15, 16

passim

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

JAMES DUPREE HENRY,

Petitioner,

vs.

LOUIE L. WAINWRIGHT, etc.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

Petitioner prays that the writ of certiorari issue to review

the judgment of the United States Court of Appeals, Fifth Circuit

(Unit B), filed December 13, 1983.

CITATION TO OPINIONS BELOW

The opinion of the court of appeals that is the subject of

this petition is reported as Henry v. Wainwright, 721 F.2d 990

(Sth Cir. 1983)(Unit B) and is set out in Appendix A hereto.

Rehearing en banc was denied on January 25, 1984 and is not yet

reported. A copy of the Order denying rehearing is set out as

Appendix B hereto. The prior opinions of the court of appeals

are reported as Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981)

(Unit B), reh. en banc den., 669 F.2d 731 (5th Cir. 1982) (Unit

B), cert. gtd and remand, 457 U.S. 1114 (1982), judgment adhered

to on remand, 686 F.2d 311 (5th Cir.)(Jnit B), cert. gtd and

remand, U.S. , 103 S.Ct. 3566 (19&3). The opinion of the

district court is unreported. The opinion of the Supreme Court

of Florida on direct appeal is reported as Henry v. State, 328

So.2d 430 (Fla. 1976) and on state post-conviction as Henry v.

State, 377 So.2d 692 (Fla. 1979).

JURISDICTION

The judgment of the court of appeals below was entered on

December 13, 1983 and petitioner's timely petition for rehearing

and suggestion for rehearing en banc was denied on January 25,

1984. Jurisdiction of the Court is invoked pursuant to 28 U.S.C.

$1254 (1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Eighth and Fcurteenth Amendments to

the Constitution of the United States. It further involves

Section 921.141, Florida Statutes (1973), entitled "Sentence of

death or life imprisonment for capital felonies; further proceed-

ings to determine sentence" and Section 782.04, Florida Statutes

entitled "Murder." Due to their length, the statutes are set out

in Appendix C hereté.

STATEMENT OF THE CASE

A. The Offense

Mr. Henry was charged with first degree murder involving the

death of Z.L. Riley. The death occurred during the commission of

a robbery at Mr. Riley's home in March of 1974. Mr. Riley's

apartment had been ransacked and he had been laid on his bed and

tied. The cause of death was, essentially, that the deceased had

Swallowed his tongue because a rag placed around his mouth as a

gag had apparently pushed against his tongue while he was lying

on his back. The medical examiner analogized the cause of death

to an epileptic victim Swallowing his tongue during a seizure

(Record at 836). The deceased also had some bruises and lacera-

tions that were unconnected to the cause of death, were "quite

superficial" and which were unclear as to the time of their

occurrence (Record at 828, 838, 842). Mr. Henry was arrested

three days later (Record at 850) and gave a custodial statement

to the police in which he admitted the robbery of Mr. Riley,

though stating that he did not know that Mr. Riley had died until

being told by police (Record at 66).

B. The Trial

Mr. Henry was indicted for first degree murder and trial by

jury began on June 24, 1974. Though the indictment charged

premeditated murder (Record at 154), in accord with Plorida law

such an indictment included the theory of felony murder, and the

prosecution proceeded on that theory. The jury rendered a

general verdict of guilty and the case proceeded to the senten-

cing trial on the same day. During the sentencing trial, the

prosecution was allowed to admit evidence that Mr. Henry had

resisted arrest by shooting the arresting officer and was

permitted to present evidence of criminal charges made against

Mr. Henry, though Mr. Henry had entered pleas to less severe

offenses. Because this evidence involved offenses for which

there had been no convictions entered, defense counsel objected

to the introduction of the evidence as not being encompassed by

the statutory list of aggravating circumstances. The judge

overruled these objections because it was his intention to allow

"generally charged" evidence. Mr. Henry presented testimony of

friends concerning his character and helpfulness (Record at

1017-26).

The case was then submitted to the jury. The trial judge

charged the jury as follows:

{[Y)ou will render an advisory sentence to the

Court based upon the following matters:

Whether sufficient aggravating circum-

stances exist for you to recommend the Death

Penalty or Life Imprisonment.

In considering aggravating circumstances,

you shall consider all factors which are

aggravating including, but not limited to, the

following:

{listing of the aggravating factors as they are

set out in the statute]

In considering mitigating circumstances,

you shall consider all factors which are

mitigating including but not limited to the

following:

{listing of the mitigating factors as they are

set out in the statute]

Your advisory sentence must be the

recommendation of a majority of your number.

That is, seven or more of you must agree upon

the recommendation you submit to the Court.

(Record at 1035-39).

During its deliberations the jury inquired whether “there

[is] any way of a prisoner getting out of prison in less than 25

years, some way other than parole when sentenced to life impris-

onment." (Record at 1039). The judge reread the instruction that

one sentenced to life imprisonment is "required to spend no less

than 25 calendar years before being eligible for parole....* Id.

By a 7 to 5 vote the jury reached an advisory verdict

recommending the death sentence (Record at 1041). The judge

immediately imposed the death sentence (Record at 1048).

C. The Direct Appeal.

Mr. Henry appealed his conviction and death sentence to the

Supreme Court of Plorida. Ina per curiam, 4 to 2 decision the

Plorida Supreme Court upheld Mr. Henry’s conviction and death

sentence. In ruling upon the death sentence the court quoted the

trial judge's findings of fact and concluded that "[wle find that

the judgment and sentence of the lower court in this cause is in

accordance with the justice of the cause." Henry v. State, 328

So.2d 430, 432 (Pla. 1976). Rehearing was denied as was a

petition for a writ of certiorari. Henry v. Plorida, 429 U.S. 951

(1976), reh. den., 429 U.S. 1124 (1977).

D. The Post-Appeal Proceedings

Mr. Henry filed a motion to vacate his judgment and sen-

tence, pursuant to Fla.R.Crim.P. 3.850, in the state trial court.

This motion was denied on November 19, 1979 and affirmed by the

Florida Supreme Court on November 27, 1979, Henry v. State, 377

So.2d 692 (Pla. 1979).

Mr. Henry then, on November 27, 1979, filed a petition for

writ of habeas corpus pursuant to 28 U.S.C. §2254 in the United

States District Court, Middle District of Plorida. By order

filed February 14, 1980 (Record at 1172) the district court

granted the petition for writ of habeas corpus insofar as the

death sentence and ordered that a new penalty trial be held, and

denied relief as to all other grounds. Respondent Wainwright then

appealed, and Mr. Henry filed a cross-appeal. The court of

appeals affirmed the district court's order granting the writ of

habeas corpus, Henry v. Wainwright, 661 F.2d 56 (Sth Cir. 1981)

(Unit B), but because of its disposition, did not reach Mr.

Henry's cross-appeal. The Court granted certiorari and remanded

the cause for further consideration in light of Engle v. Isaac,

456 U.S. 107 (1982). Wainwright v. Henry, 457 U.S. 1114 (1982),

The previous judgment was adhered to on remand by the court of

appeals. Henry v. Wainwright, 686 F.2d 311 (Sth Cir. 1982) (unit

B). Wainwright again applied tor certiorari. The Court granted

certiorari and remanded for further consideration in light of

Barclay v. Florida, 0,8. , 103 S.Ct. 3418 (1983). Wainwright

Vv. Henry, a , 103 S.Ct. 3566 (1983). On December 13,

1983, the court below issued its opinion reversing the district

court's order insofar as it had granted the writ of habeas corpus

and affirmed the denial of habeas corpus relief on the issues

raised by Mr. Henry on his cross-appeal. Henry v. Wainwright, 721

F.2d 990 (Sth Cir. 1983) (Unit B).

REASONS FOR GRANTING THE WRIT

THE EXTREME PENALTY OF DEATH IS IMPERMISSIBLE

UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS FOR

AN OFFENSE INVOLVING AN ACCIDENTAL DEATH THAT

OCCURRED DURING A FELONY WHERE NO LETHAL PORCE

WAS EMPLOYED.

Henry's case involves an accidental death where no lethal

force was employed, but a conviction for -first degree murder, and

death sentence because that death occurred during the progress of

a felony. The death was accidental because it resulted from

quite attenuated means. The victim had been bound, laid on his

bed and a piece of cloth had been tied around his mouth as a gag.

These circumstances logically indicate an apparent attempt to

avoid lethal force by an attempt only to restrain him during the

time that the taking would be accomplished. However, the gag

apparently pushed up against the victim's tongue. This caused

the death when in essence the deceased, an elderly man, swallowed

his tongue -- the medical examiner analogized the cause of death

to an epileptic seizure victim Swallowing his tongue.1

1 Though the deceased also had some bruises and laceration, they

had no connection with the death and since it is unclear when

they may have actually occurred, they may have happened in the

process of tying up the deceased. The lacerations on the

deceased's neck referred to by the lower court were, as

characteried by the medical examiner, “quite superficial," had

nothing to do with the cause of death, and were made by one or

two "scratches" (Record at 828, 838, 842).

Accordingly, the facts of this case strongly indicate that

the death was unintended. The attenuated means by which the

death occurred do not logically support an intent to cause death

and more strongly demonstrate that the death was wholly un-

intended and accidental.?

The question thus squarely presented by this case is whether

a death sentence may be imposed consistently with the eighth and

fourteenth amendments for an offense involving an accidental

death where no lethal force was employed or intended. This

question thus concerns the Court's holding in Enmund v. Florida,

458 U.S. 782 (1982) where the death sentence was held invalid for

an armed robber who did not intend that a life be taken where a

co-perpetrator shot and killed the victim.

Under Florida law, the state of mind of the defendant is

immaterial in a prosecution under a theory of felony murder. As

the Plorida Supreme Court explains:

In its most basic form, the historic felony

murder rule mechanistically defines as murder

any homicide committed while perpetrating or

attempting a felony. It stands as an exception

to the general rule that murder is homicide

with the specific intent of malice afore-

thought. Under the felony murder rule, state of

mind is immaterial. Even an accidental killing

during a felony is murder.

Adams v. State, 341 So.2d 765, 768-69 (Fla. 1977) (emphasis

supplied, footnotes omitted).

It is quite evident that petitioner was convicted under this

"mechanistic" rule for an “accidental killing” where state of

mind is immaterial. As the decision below acknowledges neither

the indictment, the jury charge nor the verdict required any

finding as to state of mind. 721 F.2d at 995; App 6a.3 The

2 Binding and gagging even more than not showing an intent to kill,

actually more logically show an intent not to kill. Restraining

someone is contradictory to an intent to kill that person. In

fact Mr. Henry's custodial statement to the police indicated that

he thought the victim was alive when he left the apartment, and

that he did not even know that he had died until he was told by

the police (Record at 66).

3 Although the indictment charged first degree murder “from a

premeditated design,” under Plorida law such an indictment is

held to charge both premeditated murder and felony murder.

Knight v. State, 338 So.2d 201 (Fla. 1976). The jury was

instructed on both theories and returned only a general verdict

of guilt that did not specify the theory upon which it relied.

Prosecution plainly proceeded on a theory of felony murder.4

There has never been a finding in the state courts at any level

that petitioner intended that a human life be taken.

The death sentence was imposed “regardless of whether

[Henry] intended or contemplated that life would be taken,"

Enmund v. Florida, 458 U.S. at 801; that is, regardless of

whether the offense involved only an “accidental killing during a

felony.” For purposes of Florida felony murder all that mattered

was that the death occurred while a felony was being committed;

nothing more was required. And that “mechanistic” rule is all

that supports the conviction and death sentence. It is the legal

fiction that made this offense first degree murder -- intent had

no role in the determination. sr. Henry's state of mind -- his

"moral guilt," id. -- was "beside the point," id. at 788, in the

imposition of the death Sentence upon Mr. Henry.

State of mind constitutionally cannot be "beside the point"

under the Court's holding in Enmund. This case falls squarely

within the Enmund reasoning for there is no relevant distinction

between it and the situation presented in Enmund. The only

difference between Mr. Henry's case and Mr. Enmund's case is

causation, not menta) state or culpability. That difference is,

however, constitutionally irrelevant. For Purposes of the death

penalty intent is the relevant factor, not causation: "It is

fundamental that ‘causing harm intentionally must be punished

more severely than causing the same harm unintentionally'.*

Enmund, 458 U.S. at 798 (quoting H. Hart, Punishment and

Responsibility 162 (1968)). mr. Henry was treated for purposes

of the death penalty the same as if he had intentionally caused

the death. This mechanical treatment under the felony murder

rule was precisely the constitutional infirmity found by the

Court in Enmund.

4 Por example, the prosecutor argued that he needed to show the

other wounds on the deceased, even though admittedly they were

unrelated to the death, in order to establish the state's theory

of forceful taking for the robbery to support its felony murder

theory. In closing argument, though initially mentioning the

Florida law regarding both theories, the prosecutor summarized

the evidence and expressly concluded: “Ladies and gentlemen,

that is felony murder in the first degree" (emphasis added)

(Record at o73}.

The Court's own judgment that the eighth amendment did not

permit the imposition of the death penalty upon Enmund, 458 U.S.

at 797, applies with equal force to Mr. Henry's death sentence.

Enmund was a participant in the "serious crime" of armed robbery,

id., and thus under Florida law he and his fellow armed robbers

"did commit murder," id. at 798. However, they were "subjected

to the death penalty only because they killed as well as robbed."

Id. The question thus was "not the disproportionality of death

as a penalty for murder, but rather the validity of capital

punishment for Enmund's own conduct." Id.

The same is true for Mr. Henry. Under the same legal theory

as applied to Enmund, Mr. Henry "did commit murder." He was

subjected to the death sentence only because a death happened

during the felony. "The focus must be on his conduct,” 458 U.S.

at 798, not upon a mechanical rule. The Court "insist[s] on

‘individualized consideration as a constitutional requirement in

imposing the death sentence.'" Id. (quoting Lockett v. Ohio, 438

U.S. 586, 605 (1978)). Just as in Enmund, the record here "does

not warrant a finding that [Mr. Henry] had an intention of ...

facilitating a murder." 458 U.S. at 798. However, causing harm

intentionally must be punished more severely than causing the

same harm unintentionally. Id. Mr. Henry did not intend to kill

and did not employ lethal force; and though his actions caused

the death, there was no intent to do so -- the record strongly

indicates the opposite, the intent Only to restrain. Yet the

State, utilizing its legal fiction of felony murder as it had

done in Enmund, treated Mr. Henry the same as if he had inten-

tionally caused the death. For the reasons expressed in Enmund,

"(t)his was impermissible under the Eighth Amendment.” Id.

Likewise, the social purposes of the death penalty that were

examined in Enmund, retribution and deterrence, do not support

the death senténce in this case. The Court was "quite

unconvinced” that the death penalty would deter someone who

commits a robbery with no intent that a life will be taken: “It

seems likely that ‘capital punishment can serve as a deterrent

only when murder is the result of premeditation and deliber-

ation.’" Enmund, 458 U.S. at 799 (quoting Pisher v. United

States, 328 U.S. 463, 484 (1946) (Prankfurter, J., dissenting)).

Deterrence would seem even less likely for an “accidental killing

during a felony” where lethal force is not employed. One who

intends only to rob, and intends that the victim not be killed,

is hardly any more likely to be deterred from the reeuiting

accidental death, than is the robber such as Enmund who sends his

co-perpetrators into a house armed with loaded weapons to force-

fully take property.

As to the second social purpose of the death penalty,

retribution, the justification depends upon the defendant's

"intentions, expectations, and actions." Enmund, 458 U.S. at

800. "American criminal law has long considered a defendant's

intention -- and therefore his moral guilt -- to be critical to

‘the degree of [his] criminal culpability.'" Id. (quoting

Mullaney v. Wilbur, 421 U.S. 684, 698 (1975)). Where the

defendant has no intent to cause the resulting death, his "moral

guilt” is not the same as one who intentionally causes the same

harm. "Criminal culpability” is plainly different, and without

intent, retribution is not legitimately served by the death

penalty.

"For purposes of imposing the death penalty, [Mr. Henry's]

criminal culpability must be limited to his participation in the

robbery.” His punishment must be tailored to his "moral guilt,"

which must in turn depend upon his intent. Culpability focuses

on actual intent, not upon the fictional intent of felony murder.

Mr. Henry's actual intent was no different than that of a robber

and his moral guilt must be judged for purposes of the death

penalty only upon that basis. As in Enmund, however, the death

penalty was imposed upon Mr. Henry “regardless of whether [he]

intended or contemplated that life would be taken." Enmund, 458

U.S. at 801. And as in Enmund, a death sentence imposed under

such circumstances, violates the eighth and fourteenth amend-

ments.

A significant eighth amendment question in thus presented by

this case. The Court must resolve the question, not only because

Mr. Henry's life depends upon its resolution by the Court, but

further because the court below has misperceived and misapplied

the Court's holding in Enmund. The court of appeals holds that

Enmund approved the death sentence for any person who "participa-

ted in the killing." 721 F.24 at 995; App. 5b. Thus, since Mr.

Henry had "no accomplice," the court held, "Enmund is no bar to

the death sentence here." Id.5 At the same time the court did

not disagree that Henry “did not intend that the victim die." Id.

The court thus upheld the death sentence because Mr. Henry

forcibly bound and gagged the deceased and because he acted

alone. The death sentence was upheld "regardless of whether

(Henry) intended or contemplated that a life would be taken."

Enmund, 458 U.S. at 801.

In a later decision the court of appeals explained that it

does not believe that Enmund applies where though the defendant

lacks intent to kill, he actually participates in the acts that

lead to death. The court narrowly restricts Enmund exclusively

to murders with accomplices. The court explained:

The crime of felony murder may be applied in

two different situations. First, it may be used

to impute the crime of murder to a Participant

in the felony who took no part in the actual

murder. This type of felony murder will be

referred to as accomplice culpability. Second,

a participant in the commission of the felony

who lacked the requisite intent to murder but

did not take part in the actual killing may be

convicted of murder. In this case, the intent

to commit the felony is imputed to the murder

so that a showing of malice becomes unnec-

essary. Because we are dealing here with this

latter type of felony murder, the Enmund

decision is not controlling.

Drake v. Francis, F.2d___, NO. 83-8047, slip op. at 16 (llth

Cir., Feb. 29, 1984).

The restrictive view of Enmund being followed by the court

of appeals, overlooks the Court's central holding. For purposes

of the death penalty the focus must be on culpability and

culpability is measured by intent, by moral guilt. Where such

intent is no greater than that for robbery, the death sentence

cannot constitutionally be imposed. The per se rule of the lower

5 The court relied upon its decision in Ross v. Ho , 716 F.2a

1528 (llth Cir. 1983). However, Ross' challenge was only that

there had been no finding that he had intended to cause death;

he did not claim that the evidence showed a lack of intent. Id.

at 1532. The panel of the court of appeals found, however, that

the record demonstrated that Ross "possessed an intent to kill"

and thus rejected his claim. Id. at 1533. Ross thus is a case

that is different from Hen y-

court focuses away from that intent -- intent is “beside the

point" -- in favor of a mechanical rule that upholds the death

sentence even though and regardless of whether the defendant had

no intent to cause or facilitate the killing. The lower court

states no justification for such a broad holding, nor, as

discussed above, could it do so for neither deterrence nor

retribution come into play. The logical result of the court's

reasoning, eschewing as it does a consideration of intent in

favor of causation, would sanction a death sentence for any

homicide so long as the defendant participated in acts that

contributed to the death, no matter how unintended. Causation

is, however, an improper focus. After all, Earl Enmund could be

said to have "caused" his victim's death by planning the armed

robbery and sending his co-perpeirators into an occupied house

with loaded weapons for the purpose of forcibly taking property

from the victims. The lower court has thus misread the holding

of Enmund.

A significant question regarding the eighth amendment is

therefore presented for the Court's review. The lower courts

have misconstrued the Court's holding in Enmund and only the

Court can,correct that misconstruction. Mr. Henry's case

presents the appropriate case upon which to review the question.

The facts of Mr. Henry's case show an accidental death and a

death sentence imposed regardless of the lack of intent, premised

solely upon the fictional and “mechanical” felony murder rule.

Because Mr. Henry's case presents the question in narrow focus

both factually and legally and because the Court is the only

court that can grant relief, the Court must grant certiorari.

THE EIGHTH AND FOURTEENTH AMENDMENTS WERE

VIOLATED BECAUSE MR. HENRY'S JURY WAS PERMITTED

TO BASE A DEATH VERDICT SOLELY UPON NONSTAT-

UTORY AGGRAVATING FACTORS A BECAUSE THERE

WERE NO OTHER CONPINEMENTS P THE JURY'S

SENTENCING DISCRETION TO SUBSTITUTE FOR THAT

"CONSTITUTIONALLY NECESSARY" SAPEGUARD.

Mr. Henry's capital sentencing proceeding lacked the one

procedural safeguard deemed constitutionally indispensible by the

Court: a finding of at least one Statutory aggravating circum-

stance. "([A] death sentence may not rest solely on a non-

Statutory aggravating factor ...." (original emphasis) Barclay

v. Plorida, 0.8. , 103 S.Ct. 3418, 3433 (1983) (Stevens, Jeon

concurring) (citing Zant v. Stephens, U.S. » 103 S.Ct. 2733,

2742-2743 (1983)). Moreover, there were no other Procedures in

Mr. Henry's case that would serve as "checks on arbitrariness,"

Pulley v. Harris, 0.8. , 104 S.Ct. 871, 880 (1984), so as to

Substitute for that missing safeguard. The capital sentencing

trial was completely open-ended -- the jury was told to consider

anything in aggravation specifically without limitation, was not

required to find aggravating factors beyond a reasonable doubt or

even told that the state bore the bi cden of proof, and in-

admissible evidence was introduced.

An important eighth and fourteenth amendment question is

presented for the Court's review. The court of appeals below,

after twice unanimously holding that the open-ended procedures in

Mr. Henry's case directly violated the eighth amendment require-

ment of regularity in capital sentencing, has relied upon the

Court's decisions in Zant and Barclay and extended and misapplied

their holdings in a manner that Sanctions capital sentencing

without procedural safeguards. The breadth of the holding below

and the procedures it approves calls for review by the Court, for

only the Court can correct the misperception of its precedent.

We will discuss below the lack of any requirement that the

jury base its death verdict on a Statutory aggravating factor,

the lower courts misperception of the role of the jury in Florida

capital sentencing, and the unchecked nature of the other

procedures employed in Mr. Henry's case.

A. The Jury Was Permitted To Base Its Death Verdict Solely On

Nonstatutory Aggravat ng Factors,

Unlike the juries in Barclay and Zant, Mr. Henry's jury was

not told that it was required to find at least one statutory

aggravating circumstance before it could issue a death verdict.

Henry's jury was told only that it should render a se-*encing

verdict based on "[w]hether Sufficient aggravating circumstances

exist or sufficient mitigating circumstances exist, for you to

recommend the death penalty or life imprisonment," and that,

"{iln considering aggravating gircumstances, you shall consider

all factors which are aggravating, including but not limited to,

[statutory aggravating circumstances] ."

The combined effect of first permitting the prosecutor to

Present anything in aggravation and urging the jury to consider

any of it or indeed anything at all; and second permitting the

jury to reach a death verdict without explicitly finding a

Statutory aggravating circumstance, was to create the substantial

risk that the jury's verdict aid rest "solely on a nonstatutory

aggravating factor," and thus wholly undermine one of the two

Primary requisites of a valid death sentencing scheme, see Zant,

103 S.Ct. at 2742, for there is simply no assurance that "capital

Punishment [will] be imposed fairly, and with reasonable consis-

tency” as the eighth amendment requires. Eddings v. Oklahoma, 455

U.S. 104, 112 (1982).

An underlying premise of the Court's 1976 decisions appro-

ving the capital sentencing procedures in Plorida, Georgia and

Texas and its decisions last term in Barclay and Zant was the

role of statutory aggravating factors in narrowing and limiting

the unbridled discretion disapproved in Furman. See Pulley v.

Harris, 104 S.Ct. at 876-879 (analyzing the procedures approved

in the 1976 cases, each of which requires the finding of at least

one statutory aggravating circumstance).

In Zant v. Stephens, Supra, “the emphasis was on the consti-

tutionally necessary narrowing function of Statutory aggravating

circumstances." Pulley v. Harris, 104 S.Ct. at 871 (emphasis

added). See also Proffitt v. Plorida, 428 U.S. 242, 256 (1976)

(recognizing that a death sentence would not be upheld solely on

nonstatutory aggravating factors); Barclay v. Florida, 103 S.Ct.

at 3426, 3428 (plurality opinion) (same and noting that Proffitt

questioned the constitutional propriety of basing a death

sentence solely on a nonstatutory aggravating factor); id. at

3430, 3431, 3433 (Stevens, J., concurring) (noting the consti-

tutional necessity of finding at least one statutory aggravating

factor).

Accordingly, the one procedural safeguard against arbitrary

capital sentencing as required by Gregg v. Georgia, 428 U.S. 153

(1976), is the critical and “constitutionally necessary” finding

of a statutory aggravating circumstance -- a procedure by which

findings are made pursuant to legislative guidelines that

meaningfully narrow the class of convicted murderers upon whom a

death sentence may be imposed. See also Godfrey v. Georgia, 446

U.S. 420, 427-28 (1980) (noting the Court's emphasis upon the

need for channelling sentencing discretion by “clear and objec-

tive standards" that provide "specific and detailed guidance” in

selecting those murders who may be sentenced to death in order to

avoid arbitrary imposition of the death penalty). It is the key

procedure that distinguishes the current approved capital

sentencing schemes from those invalidated by Furman v. Georgia,

408 U.S. 238 (1972).

That procedural safeguard was, however, absent in this case.

The juries in Proffitt, in Barclay, and Zant were properly

instructed. So too was the jury “properly instructed" in

Wainwright v. Good, U.S. , 104 S.Ct. 378, 383 (1983).6 The

jury in Henry's case was not, however, properly instructed.

B. The Court of Appeals Misapprehended the Critical Role of the

Jury in Florida Capital Sentencing.

Mr. Henry's jury vote for a death sentence by the barest of

margins, 7 to 5 -- a change of one vote would have meant a life

verdict and would have thus changed the entire character of the

later proceedings at the trial and appellate levels. It was,

6 Also, in Gre v. Georgia, supra, the Court emphasized the need

to provide the juries with “careful instructions on the law and

how to apply it before they are authorized to decide the merits

of a lawsuit." 428 U.S. at 193. The Court said that any other

course would be “virtually unthinkable” Id.

however, this hair-thin death verdict that the court of appeals

thought would allow the unlimiting jury instruction in this

case.

The opinion below acknowledges precisely the constitutional

violation present in this case: "It is impossible to determine

what evidence the jury relied on in sentencing Henry to death,"

721 F.2d at 994; App. 5a. Though it acknowledged the constitu-

tional error, the court reasoned that the concurring opinion by

Justice Stevens in Barclay "did not directly [fn.3] address

whether the jury as well as the judge must specifically find a

Statutory aggravating factor to be present.” Id. (citing Barclay

v. Florida, 103 S.Ct. at 3433 (Stevens, J., concurring)). In its

footnote 3 the court explained that Barclay's jury voted for life

imprisonment whereas Henry's jury voted for death and thus

concluded that "we cannot discern a reason for invalidating the

death sentence here where the sole distinction is that a jury

voted for the death penalty." 721 F.2d at 994 n.3; App. 5a

(original emphasis). Secondly, the court reasoned that the jury

"acts only in an advisory capacity" and therefore it did not

matter that the jury was not constitutionally instructed. Id.

The court's reasoning is based upon two glaring miscon-

ceptions.

First, the reasoning wholly disregards and undermines the

determinative role of the jury in Florida capital sentencing.

That disregard is in marked contrast to how the Court views the

jury in Florida. In every decision where the Court has reviewed

the Plorida statute -- from Proffitt to Barclay -- it has empha-

sized and reaffirmed the jury's crucial role.” The Court's view

and reliance upon the importance of the Florida jury is in

complete accord with how state law treats the jury. The jury is

of paramount importance. Florida's capital sentencing system

7 See Proffitt v. Florida, 428 U.S. at 249-50 (noting the strict

Standard of review in Florida where a jury votes for life

imprisonment). In Dobbert vy. Plorida, 432 U.S. 282 (1977) the

Court emphasized the “exacting standards of Tedder[v. State, 322

So.2d 908 (Fla. 1975)}" id. at 295-96, that come into effect

where a jury votes against the death penalty. The Court again

emphasized and relied upon the jury's important role in its

decision in Barclay v. Plorida, 103 S.Ct. at 3425, 3427, 3428

(plurality opinion) (relying upon the safeguard of the Tedder

Standard); id. at 3430 & n. 1 (same).

involves a “scheme of checks and balances in which the input of

the jury serves as an integral part." Messer v. State, 330 So.2d

142 (Fla. 1976). Thus, “the jury recommendation should be

followed because that body has been assigned by history and

statute the responsibility to discern truth and mete oyt

justice." Chambers v. State, 339 So.2d 204, 209 (Fla. 1976)

(England, J., concurring); accord Cooper v. State, 336 So.2d

1133, 1140 (Fla. 1976) (The jury is “the one institution ... most

honored for fair determinations of questions decided by balancing

opposing factors."). Accordingly, with regard to the "respective

functions of the judge and jury in death penalty cases," the

judge's role "is primarily to insure the jury's adherence to law

and to protect against a sentence resulting from passion rather

than reason.” Chambers v. State, 339 So.2d at 208 (England, J.

concurring). The jury “represent[s] the judgment of the commun-

ity as to whether the death sentence is appropriate” in a given

case. McCampbell v. State, 421 So.2d 1072, 1075 (Fla. 1982);

accord, e.g., McCaskill v. State, 344 So.2d 1276, 1280 (Fla.

1977) (juries are the “conscience of our communities”). In

Florida there thus may be "no denigration of the jury's role" in

capital sentencing. Richardson v. State, 437 So.2d 1091, 1095

(Fla. 1983).

It is because of the critical importance of the jury's

verdict that in order to overrule a life verdict, a death

sentence may be imposed only if the “exacting standards of

Tedder" are met. Under that strict standard a death sentence may

not be imposed unless “the facts suggesting a sentence of death

fare] so clear and convincing that virtually no reasonable person

could differ. Tedder v. State, 322 So.2d at 910. Thus, “a

jury's advisory opinion is entitled to great weight, reflecting

as it does the conscience of the community, and should not be

overruled unless no reasonable basis exists for the opinion.”

Richardson v. State, 437 So.2d at 1095.8

8 Consistent with the Tedder standard and the important role given

to the jury in Plorida capital sentencing, the Florida Supreme

Court views errors occurring in the jury proceedings more

strictly than errors in a sentencing judge's findings. While it

applies a harmless error rule to errors it finds in a judge's

sentencing order (this was the situation in Barclay v. Florida,

supra), the Florida court does not apply a harmless error rule to

0 -16- = pita os fae

Accordingly, what the decision below misses in its deroga-

tion of the Florida jury, is the drastic difference that a life

verdict would have meant in Henry's case at both the trial and

appellate levels of the Florida courts. The razor-thin 7 to 5

jury verdict for death meant that the Tedder standards did not

have to be met in imposing the death sentence. The trial judge

was not required to find by clear and convincing evidence that no

reasonable person could differ over the necessity of the death

sentence. See Barclay v. Florida, 103 S.Ct. at 3428 (plurality

opinion) (recognizing the rule “prohibiting the trial judge from

overriding" a jury's life verdict unless the Tedder test is met).

Likewise, the Florida Supreme Court was not required to and did

not give its heightened scrutiny to Henry's death sentence. See

id. at 3428 (recognizing the stricter review employed by the

Florida Supreme Court where death is imposed over a life

verdict); id. at 3430 (Stevens, J., concurring) (noting that the

Florida court “will scrutinize with special care any death

sentence that is imposed after a jury has recommended a lesser

penalty.").

The jury in Florida does matter very much and the lower

court's disparagement of the jury's role overlooks the fact that

the jury's verdict critically shapes both the judge's and

appellate court's subsequent findings and review. Had Henry's

jury voted for life, the exacting Tedder standards would have

come into play with the likely result that the death sentence

would not have been imposed or if it had been it would not have

been affirmed. And it is a very real likelihood that had the

jury been properly instructed it would have returned a life

verdict. This was the finding of the district court after review

errors in the jury proceedings. See Maggard v. State, 399 So.2d

973 (Pla. 1981) (reversing for a new penalty trial though

upholding a statutory aggravating factor and finding none in

mitigation, because an error occurred “during the [jury]

sentencing hearing").

of the entire record.9 Such likelihood is further reinforced by

the marginal 7 to 5 vote of Henry's jury; a change of even one

vote would have meant life imprisonment.19

The court of appeals decision thus critically misperceived

the harm to Henry from the inadequate jury CaEER. (The dispar-

agement of the jury by the lower court not only was inconsistent

with Florida law discussed above, but it raises the question

presently pending in the Court in Spaziano v. Florida, No.

83-S5¥6 (cert. granted Jan. 9, 1984) regarding the extent to

which a judge's sentencing decision can be substituted for the

jury's decision consistently with the federal Constitution).

Second, the decision below misses the pivotal difference

between Barclay and Henry. Barclay's jury was properly in-

structed on the requirement of finding a Statutory aggravating

circumstance and Henry's jury was not. It thus widely misses the

mark to reason that the "sole distinction" between Henry and

Barclay is that Barclay's jury voted 7-5 for life. Tho decision

is thus premised on faulty logic that since Barclay was not

harmed with a life verdict, then Henry with a death verdict could

not be harmed. Of course, however, Henry was harmed by the death

verdict that was premised on constitutionally inadequate jury

instructions. The reasoning of the iower court is thus based on

a further misconception.

9 The district court found that “had the jury been properly

instructed and guided at the sentencing hearing, it is entirely

possible that its recommendation might not have been for the

imposition of the capital penalty.” (Record at 1189). There are

a number of factors that militate in favor of and would support

a life verdict by the jury, including the wnitigating character

evidence presented by Henry at trial and, perhaps more impor-

tantly, the nature of the offense as involving an accidental,

unintended death (see point I, supra).

10 See Rose v. State, 425 So.2d 521 (Fla. 1983) (6 to 6 vote means

life); Harich v. State, 437 So.24 1082 (Pla. 1983) (same). It is

also interesting to note that under the holdings of both Rose and

Harich, Henry's jury was improperly instructed under state law

that a majority verdict was required for a life sentence.

C. There Was No Other Confinement of the Jury's Sentencing

Discretion

The jury in Henry's case was not constitutionally instruc-

ted. The sentencing process lacked the key eighth amendment

safeguard that has emerged from the evolution of Furman through

the Court's decisions in Gregg, Zant, Barclay and Pulley.

Henry's jury was not required to find a statutory aggravating

circumstance before reaching its death verdict.

Since this “constitutionally necessary” safeguard was

absent, it is appropriate to examine the other procedures

employed to determine whether they could make up for that

omission.11 In this case it could not . There was simply nothing

else in the process by which the jury cast its decisive hairline

vote for death that narrowed or confined its sentencing dis-

cretion so as to provide a substitute for the safeguard of

finding of a statutory aggravating circumstance.

The sentencing proceedings in this case may accurately be

characterized as open-ended: (1) the prosecutor was allowed to

present any evidence in aggravation without limitation; (2) the

jury was permitted and urged to base a death verdict on any of it

or indeed anything at all; (3) the jury was not told that the

state bore the burden of proving aggravating factors or that

aggravating circumstances were required to be proven beyond a

reasonable doubt; (4) the aggravating factors were not defined

for the jury, they were simply listed from the statute; and (5)

as previously discussed, the jury was allowed to base its death

verdict solely upon nonstatutory aggravating factors. In short

the procedural context presented by Henry involves "permitting

the jury to consider whatever evidence of nonstatutory aggrava-

ting circumstances the prosecution might desire to present or the

jurors might discern ...," Henry v. Wainwright, 661 F.2d 56, 59

11 In reviewing the omission of a procedural safeguard from a

particular capital sentencing process, the Court has looked at

the other procedural protections in the process to determine

whether they could adequately substitute for the omitted safe-

guard. See Pulley v. Harris, 104 S.Ct. at 879, 880 (looking at

whether the other California procedures were so lacking as to

nevertheless require the omitted proportionality review).

(Sth Cir. 1982) (Unit B) (emphasis added), and no guidance to the

jury as to how to reach its verdict, i.e. weighing and burden of

proof.

There was thus no substitute for the omission of the

requirement that the jury find a statutory aggravating factor.

For example, had the evidence been properly limited, as required

by state law, to only statutory aggravating factors or if the

jury had been properly instructed to rely only upon statutory

aggravating factors, as also required by state law, then perhaps

it might not have mattered that the jury was not told that it was

required to find a statutory factor before it could return a

death verdict. Under such circumstances the jury's discretion

might have been confined by other safeguards. But there were no

such other safeguards in this case.

The Court's opinions in both Barclay and Zant emphasize the

importance of confining the jury's discretion. In Zant the Court

had been told by the Georgia Supreme Court that "a different

result might be reached if the failed circumstances [considered

by the sentencing jury] had been supported by evidence not

otherwise admissible ...." (emphasis added) 103 S.Ct. at 2740-41.

The notion that there are some kinds of evidence that are "not

+++ admissible" in aggravation presupposes the existence of

restrictions upon the prosecutor's license to present anything he

pleases to the jury at a penalty trial. In Georgia, the evidence

was expressly authorized by statute, see 103 S.Ct. at 2747, and

the Court therefore began from the premise that "any evidence on

which the jury might have relied in this case ... was properly

adduced at the sentencing hearing .... [and was] properly before

the jury," (Id. at 2748); emphasis added). Stephens’ grievance

was thus reduced to a claim that "[a]lthough ... the evidence was

admissible, ... the trial court's instructions 'may have unduly

directed the jury's attention to [it.]'" Id. (Emphasis added).

Likewise, in Barclay there was no claim that the evidence on

which the sentencing judge relied in making the inappropriate

finding of an aggravating circumstance was not properly before

the sentencer. "On the contrary, this evidence was properly

introduced ...." (emphasis added) 103 S.Ct. at 3427 (plurality

opinion). Once again, as in Zant, “even though, under state law,

these factors did not support findings of statutory aggravating

circumstances, the information [itself] appears to have been

properly before the advisory jury and the judge." (emphasis

added) Id. at 3434.

Thus, neither Zant nor Barclay countenances: (1) a death

sentence premised upon consideration of evidence in aggravation

which has been placed before the sentencer improperly, or (2) the

notion that, simply because a State may permit the sentencer to

consider nonstatutory aggravating features of a case appearing

from properly admitted evidence, it may also open-end the penalty

trial completely, so as to license the prosecutor to present

anything at all. If this kind of license were contemplated, then

the carefully repeated language in Barclay and Zant about

"properly admitted” and “admissible” evidence would be altogether

out of place, since there would be no such thing as improperly

admitted or inadmissible evidence.

The decision below, however, disregards this limiting

language of Barclay and Zant, and reasons instead that since

Barclay and Zant allow nonstatutory aggravating factors to be

considered, they must also at the same time allow admission of

such nonstatutory evidence. To hold otherwise, “would create an

anomaly" as the panel sees it. 721 F.2d at 994; App. 5a. There

is however no anomaly in this -- it is at heart of the eighth

amendment requirement for consistent application of capital

sentencing. The effect of the lower court's decision is to

disregard the limitations of Zant and Barclay and to completely

open-end the penalty trial.

Accordingly there were no other safeguards in the jury

proceedings that served to confine the jury's discretion so as to

substitute for the key safeguard that was omitted. The penalty

proceedings in this case were in a true sense open-ended

completely. The procedures sanctioned by the lower court

decision are indeed very broad, permitting an unchecked license

to present and consider anything at all, while at the same

-21-

permitting the jury to base its death verdict solely upon non~-

statutory aggravating factors ~~ 4 procedure said by the Court in

Zant and Barclay to be unconstitutional.

The Court should grant certiorari to review the significant

question as to the limits on capital sentencing discretion

allowed by the eighth and fourteenth amendments. As it now

stands, the Henry decision sanctions a process virtually without

limits and the absence of a safeguard deemed constitutionally

necessary by the Court. It is a question of broad reach affec-

tion the administration of capital punishment in Florida and

elsewhere. The Court is the only court that can resolve the now

open question.

CONCLUSION

Significant eighth and fourteenth amendment questions are

resented by this case, each of which involve the proper applica-

tion of the Court's precedent. Because the lower court has

resolved those questions in a manner that misperceives the

Court's decisions, review by the Court is required. The petition

for a writ of certiorari must be granted.

Respectfully Submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida

224 Datura Street/l3th Floor

West Palm Beach, Florida 33401

(305)/837-2150 f

| aa my /

ay / Nr

[CRAIG ST BARNARD

— Assistant Public Defender

Counsel for Petitioner

@-22-

APPENDIX A

JUDGMENT BELOW

* Former Fifth Circuit Case, Section &{1) of Pub-

721 FEDERAL REPORTER, 2d SERIES

James Dupree HENRY, Petitioner-Appel-

lee, Cross-A ppeliant,

Louie L. WAINWRIGHT, Secretary, De-

partment of Corrections, Respondent.

Appellant, Cross-Appellee.

No. 80-5184.

United States Court of Appeals,

Fifth Cireuit.*

Unit B

Dec. 13, 1983.

After the United States District Court

for the Middle District of Florida, John A.

Reed, Jr., J., granted petition for writ of

habeas corpus, the Court of Appeals, 661

F.2d 56, affirmed, and denied rehearing en

banc, 669 F.2d 731. The United States Su-

preme Court, 457 US. 1114, 102 S.Ct. 2922.

73 L.Ed2d 1326, vacated and remanded.

On remand, the Court of Appeals, 686 F.2d

311, affirmed. The United States Supreme

Court, 163 S.Ct. 3566, granted certiorari and

vacated and remanded judgment. On re-

mand, the Court of Appeals, James C. Hill,

Cireuit Judge, held that: (1) trial court

properly relied on nonstatutory agyravating

factors in imposing death sentence; (2) er-

ror in failing to instruct jury that agegravat-

ing circumstances must be found beyond

reasonable doubt was harmless; and (3) ap-

plication of Florida aggravating circum.

Stance that the crime was especially hei-

nous, atrocious or cruel, was not improper

in view of vile and atrocious acts committed

by petitioner upon his victim and before his

victim's death.

Affirmed in part and reversed in part.

1. Homicide 354

Actions of petitioner ir resisting arrest

and shooting police officer as officer knelt

on ground begging not to be shot again

were not constitutional!; protected conduct,

and thus evidence of those actions was ad-

missible as clearly having 2 materiz! bear-

lic Law 96-452, October 14, 1980.

HENRY v. WAINWRIGHT

991

Cite as 72! F246 800 (1983)

ing on character of defendant, and there-

fore could be relied upon as a nonstatutory

aggravating Gauges in imposing

death penalty.

2 Criminal Law ¢ 1208.1(6)

Procedure followed in petitioner's case

under Florida law, where judge is sentenc-

ing authority and jury acts only in advisory

capacity, returning general verdict recom-

mending life or death, where both judge

and jury heard substantial evidence of stat-

utory aggravating factors, and judge spe-

cifically found statutory aggravating fac-

tors to be present, supported finding that

petitioner’s death sentence did not rest sole-

ly on a nonstatutory facwr so as to preclude

consideration of such factor in imposing

sentence.

3. Habeas Corpus @=85.5(15)

Record demonstrated that trial judge

allowed jury, in imposing sentence, to con-

sider al] mitigating circumstances “included

but not limited to” statutory circumstances,

and judge specificajly found that as to miti-

gating circumstances, there were absolutely

none, refuting petitioner’s contention that

trial judge improperly considered only stat-

utory mitigating circumstances.

4. Habeas Corpus ¢=30(3)

That state Supreme Court did not af-

firmatively pass on issue whether it was

error to consider nonstatutory aggravating

circumstance in imposing death sentence

did not invalidate such sentence.

5. Habeas Corpus ¢30(1)

For failure to give instruction to be

harmless, evidence must be so overwhelm-

ing that omission beyond reasonable doubt

did not contribute to verdict.

6. Habeas Corpus €-30(1)

Error in failing to instruct jury that

aggravating circumstances must be found

beyond reasonable doubt was harmless, as

evidence of aggravating circumstances was

overwhelming, jury never beard an instruc-

tion during trial on any standard of proof

other than beyond reasonable doubt, and, in

Florida, judge, not jury, imposes final sen-

tence.

7. Criminal Law ¢=1208.1(6)

That jury, which returned general ver-

dict of guilty in prosecution charging peti-

tioner with both murder with intent to kill

and felony-murder, did not specifically find

that petitioner intentionally killed victim

did not preclude sentencing petitioner to

death, where petitioner bound and gagged

his victim, tortured him and cut him with a

razor blade, victim died by strangling on

gag petitioner placed in his mouth, and

petitioner could not argue that he did not

perform fatal act with intent at least to

seriously and wantonly harm victim.

8. Criminal Law o=641.13(2)

Failure to instruct jury that aggravat-

ing circumstances must be found beyond

reasonable doubt was harmless error, and

therefore petitioner was not denied effev-

tive assistance of counsel on ground that his

attorney did not object to trial judge's

charge. U.S.C.A. Const.Amend. 6.

9. Criminal Law 641.13(2)

Notwithstanding that under state law,

instruction allowing consideration of non-

statutory aggravating factors in imposing

death sentence was erruncous, petitioner's

counsel was not ineffective for failing to

object to that charge, as instruction did not

constitute constitutional error. U.S.C.A.

Const.Amend. 6.

10. Criminal Law ©641.13(1)

Constitution does not mandate error-

free counsel.

11. Criminal Law 1208.2

Sentencing authority has discretion in

deciding whether to impose death penalty.

12. Homicide e354

Trial judge’s reliance on aggravating

circumstance, murder while committing

robbery, did not result in automatic imposi-

tion of death penalty, as it was not uncon-

stitutional for state of Florida, in construct-

ing death sentencing procedure, to consider

murders committed in course of other dan-

gerous felonies to be reprehensible, nor did

use of underlying felony shift burden of

proof to defendant; rather, state had to

- 2a -

992

nevertheless prove existence of aggravating

circumstances.

13. Habeas Corpus ¢=30(3)

State law error that trial judge in re-

garding aggravating circumstances of mur-

der in commission of robbery and murder

for pecuniary gain as separate and distinct

aggravating circumstances did not raise

possibility that death sentence was not im-

posed in a consistent rational manner, as

record gave no indication that sentencing

judge considered it important that same

facts supported two statutory provisions;

therefore, that error did not render death

sentence invalid.

14. Crimina] Law @1208.1(6)

There was no constitutional error in

trial judge’s imposition of death sentence

immediately after jury recommended life

sentence, as judge expressly stated on rec-

ord that he had carefully considered case

for some time and felt prepared to rule

without delay.

15. Criminal Law 1147

Florida court’s methods of review, em-

ploying a standard of review in cases in

which jury recommends sentence of life of

whether facts supporting death sentence

are so clear and convincing that virtually no

reasonable persou could differ, while not

employing clear and convincing standard

when jury recommends death, are constitu-

tionally valid.

16. Habeas Corpus ¢=92(1)

It is not function of Court of Appeals

to legislate state laws and procedures; it

only evaluates the constitutional attacks

upon them.

17. Criminal Law > 1208.1(4)

Even if in county in which petitioner

was sentenced, 16.3% of all capital indict-

ments resulted in death sentence and 41.7%

of all convictions resulted in death sentence,

while statewide percentages were 9.7% and

24.3% respectively, there was no constitu-

tional violation, as petitioner alleged no ra-

** Honorable Edward S. Smith, U.S. Circuit

Judge for the Federal Circuit, sitting by desig-

721 FEDERAL REPORTER, 2d SERIES

cial, sexual or other inherently suspicious

discrimination, did not argue that death

penalty was somehow unsuited in his partic-

ular case, and did aot raise a claim that

Florida court failed properly to conduct a

proportionality review, but claimed only

that Florida death penalty was arbitrary

end capricious as applica.

18. H =344

Application of Florida aggravating cir-

cumstance that the crime was especial! ,

heinous, atrocious or cruel, was not improp-

er in view of vile and atrocious acts com-

mitted by petitioner upon his victim and

before victim's death. West's F.S.A.

§ 921.141(5Xh).

Wallace E. Allbritton, Charles A. Stampe-

los, Tallahassee, Fla., for respondent-appel-

lant, cross-appellee.

Craig S. Barnard, Chief Asst. Public De-

fender, West Palm Beach, Fla., for petition-

er-appellee, cross-appellant.

Appeals from the United States District

Court for the Middle District of Florida.

ON REMAND FROM THE SUPREME

COURT OF THE UNITED STATES

Before HILL, HENDERSON and

SMITH °°, Circuit Judges.

JAMES C. HILL, Circuit Judge:

In this case, we review the order of th«

district court granting appcllee James Du-

pree Henry's petition for a writ of habeas

corpus. This panel previously decided and

affirmed this case sitting as the United

States Court of Appeals for the Fifth Cir-

cuit (Unit B), see Henry v. Wainwright, 661

F.2d 56 (5th Cir.1981) (Henry 1), and Wuain-

wright appealed to the Supreme Court.

The Supreme Court vacated and remanded

the case for further consideration in view of

Engle v. Isaac, 457 U.S. 1114, 102 S.Ct.

2922, 73 L.Ed.2d 1326 (1982), and, in Henry

nation.

- 3a -

HENRY v. WAINWRIGHT

993

Cite 00 721 F 26 990 (1983)

v. Wainwright, 686 F.2d 311 (5th Cir.1982)

(Henry II), we reinstated our previous

judgment. Wainwright appealed again to

the Supreme Court, which vacated and re-

manded the case again, this time for recon-

sideration in light of Barclay v. Florida, —

US. ——, 108 S.Ct. 3418, 77 LEd2d 1134

(1983). Upon reconsideration, we have de-

termined that the decision in Barclay dem-

onstrates that our previous decision was in

error. After considering the issues raised

by Henry on cross appeal not passed on in

our previous decisions, we conclude that the

district court properly denied relief as to

those issues. Therefore, we affirm the

judgment of the district court denying the

writ as to the additional issues and reverse

the judgment of the district court granting

relief on the Barclay issue.'

I ;

In Henry I, 661 F.2d at 56, we concluded

that it is Constitutional error for the sen-

tencing authority to consider nonstatutory

aggravating factors in determining whether

to impose the death penalty. In Barclay,

the Supreme Court clearly held that the

Constitution does not prohibit the sentenc-

ing judge from considering nonstatutory

aggravating circumstances in al! cases. 103

S.Ct. at 3427 (plurality opinion); 103 S.Ct

at 3437 (Stevens and Powell, JJ., concur-

ring). In that case, the trial judge found

valid statutory aggravating circumstances

but no mitigating circumstances. The Su-

preme Court held i: proper for the Florida

Supreme Court to conclude in such a case

that the reliance of the sentencing judge on

the nonstatutory aggravating circumstance

was harmless error. Jd. 103 S.Ct at 3428,

3433.

Henry contends that distinctions between

the present case and Barclay require that

we invalidate his death sentence. He first

argues that in Barclay and in Zant v. Ste-

phens, —- U.S. ——, 103 S.Ct 2733, 77

L.Ed_2d 235 (1983), the sentencing authority

considered evidence properly before it but

sions and we will not repeat them here.

erroneously concluded that the evidence

supported a finding of a statutory aggrs-

vating circumstance. Henry contends that

the trial judge in this case relied on inad-

missible evidence. Henry cites Ford v.

Strickland, 696 F 2d 804, 814 (11th Cir.1983)

(en banc), Antone v. Strickland, 706 F.2d

1534 (11th Cir.1983), Shriner v. Wainwright,

715 F.2d 1452 (11th Cir.1983), and Brooks v.

Francis, 716 F.2d 780 (11th Cir.1983) to sup-

port his contentions.

These cases do not support the result

advocated by Henry. Ford involved “con-

sideration of neither unconstitutional or

nonstatutory aggravating evidence,” 696

F.3d at 814, and Antone involved a similar

situation, 706 F.2d at 1539. In Brooks, the

jury (the sentencing authority in Georgia)

did not rely on a nonstatutory circum-

stance; the petitioncr challenged the tria!

court's instruction allowing the jury to

“consider all the evidence received through-

out this trial.” At 790. This court denied

relief on the basis of the Henry I/ decision,

686 F.2d 511, without citing Barclay cr Ste-

phens. And, in Shriner, we squarely reject-

ed a claim similar to Henry’s, relying direct-

ly on Barclay. 715 F.2d at 1458.

In Barclay, the Supreme Court stated

that the evidence supporting the finding of

the nonstatutory aggravating circumstance

was “properly introduced to prove that the

mitigating circumstance of the ubsence of a

criminal record did not exist.” 103 S.Ct. at

3427. The Court in Barclay did not rely

heavily on the coincidence that the evidence

was properly admissible under state law,

however. The Supreme Court also con-

sidered the sentencing review by the Flori-

da Supreme Court,? the existence of valid

Statutory aggravating circumstances, and

the absence of mitigating circumstances.

Indeed, Justice Stevens, concurring, stated

that “[tJhe Florida rule that statutury ag-

gravating factors must be exclusive affords

greater protection than the federal Consti-

tution requires.” Jd. 103 S.Ct. at 3432-33.

2. Henry does not contend that the review was

somehow inadequate in this case.

- #da-

)

994

{1} To accept Henry's argument would

create an anomaly: the sentencing authori-

ty could constitutionally consider nonstatu-

tory aggravating circumstances only if the

evidence supporting those circumstances

had validly been admitted on some other

ground. This result would contradict the

clear language in Barclay that “the Consti-

tution does not prohibit consideration at the

sentencing phase of information not direct-

ly related to either statutory aggravating

or mitigating factors, as long as that infor-

mation is relevant to the character of the

defendant or the circumstances of the

crime.” Jd. 103 S.Ct at 3433 (Stevens, J.,

concurring). Although the Court clearly

prohibited any evidence of aggravating acts

drawn from or based on constitutionally

protected conduct, see 103 S.Ct at 3427,

Justice Stevens’ comments indicate that

Henry overemphasizes the Court’s reliance

on the admissibility of the evidence at Kar-

clay's trial simply to show the absence of a

mitigating circumstance. In this case, the

nonstatutory aggravating circumstance re-

lied on by the judge was Henry's resisting

arrest and shooting a police officer as the

officer knelt on the ground begging not to

be shot again. Henry's actions clearly have

a material bearing on the character of the

defendant, and the actions are not constitu-

tionally protected conduct. This is enough

to render the evidence constitutionally “ad-

missible” under Barclay.

[2] Henry also argues that this case dif-

fers from Barelsy because the possibility

exists that the jury relied “solely on a non-

statutory aggravating factor.” 103 S.Ct at

3433 (Stevens, J., concurring) (emphasis in

original). Henry's judge instructed the

jury that they should consider all aggravat-

ing circumstances “not limited to” statutory

circumstances. The jury recommended by a

vote of 7-5 that Henry be sentenced to

death, and the trial judge sentenced Henry

3. In Barclay the jury voted 7-5 for life impris-

onment. 103 S.Ct at 3421.

of the death penalty; we cannot discern a rea-

son for invalidating the death sentence here

721 FEDERAL REPORTER, 24 SERIES

to death. It is impossible to determine

what evidence the Jury relied on in sentenc-

ing Henry to death. In Barclay, however,

Justice Stevens referred to a “death sen-

tence” resting “solely on 2 nonstatutory

.+. factor,” id; he did not directly? ad-

dress whether the jury as well as the judge

must specifically find a statutory aggravat-

ing factor to be present. In Florida, the

judge is the sentencing authority, and the

jury acts only in an advisory capacity, re-

turning a general verdict recommending

life or death. Both the judge and jury

heard substantial evidence of statutory ag-

gravating factors in this case, and the judge

specifically found statutory aggravating

factors to be present. This procedure pro-

vides us adequate assurance that Henry's

sentence docs not rest solely on a nonstatu-

tory factor.

{3} Next, Henry argues that the trial

judge improperly considered only statutory

mitigating circumstances;* however, the

record does not support Henry's contention.

Here the trial judge allowed the jury to

consider al] mitigating circumstances “in-

cluded but not limited to” statutory circum-

stances, and the judge specifically found

that as to “mitigating circumstances, there

are absolutely none.” In any event, Hen-

ry's attempt to distinguish Barclay in this

manner, in reliance on our decision in Goode

v. Wainwright, 704 F.2d 593, 612 (11th Cir.

1983), is now of doubtful merit. The Su-

preme Court recently reversed Goode.

Wainwright v. Goode, —- U.S. ——, 104

S.Ct. 378, 77 L.Ed.2d —— (1983).

{4} We must address one final question

in deciding the effect of Barclay on this

case. In Barclay, the Supreme Court relied

on the review conducted by the Florida

Supreme Court in refusing to invalidate

Barclay’s sentence. See 103 S.Ct at 3423.

In this case, although Henry presented the

nonstatutory aggravating circumstances is-

when the sale distinction is that a jury voted

for the death penalty

4. Henry raised this issue in his initial cross-ap-

peal as an independent ground of error. See

- 5a -

HENRY v. WAINWRIGHT

Cite as 721 F.24 990 (1983)

sue to the Florida Court, that Court did not

affirmatively pass on it. Henry I], 636 F.2d

at 311. Nevertheless, this affords no reason

for invalidating the sentence. In Barclay,

the Florida Cour: also “never discussed the

trial judge's specific findings concerning

Barclay.” Barclay, 103 S.Ct. at 3441 (Bren-

nan, J., dissenting); see generally Barclay

v. State, 343 So.2d 1266 (Pla.1977). In both

cases the Flerida Court simply conducted its

sentencing review and concluded that the

trial judge acted properly. We can find no

distinction on this ground between this case

and Barclay. Thus, we reverse the order of

the district court granting Henry the writ

of habeas corpus because of the trial judge's

reliance on nonstatutory aggravating fac-

tors.

[5,6] On cross appeal, Henry first con-

tends that the district judge erred in find-

ing harmless the failure of the trial judge

to instruct the jury that aggravating cir-

cumstances must be found beyond a reason-

able doubt. For the failure to give the

instruction to be harmless, the evidence

must be so overwhelming that the omission

beyond a reasonable doubt did not contrib-

ute to the verdict. See, eg., Brooks v.

Francis, 716 F.2d 780 at 794 (11th Cir.1983).

The district judge accurately noted that the

evidence of the aggravating circumstances

(murder while committing robbery, espe-

cially benious and cruel murder, and pecuni-

ary gain) was overwhelming. The jury

never beard an instruction during the trial

on any standard of proof other than beyond

a reasonable doubt. And, in Flogida, the

judge, not the jury, imposes the final sen-

tence. We conclude that the judge’s failure

to repeat his charge to the jury on the

der; the jury returned a general verdict of

guilty. Henry therefore contenc- that, Le-

cause the jury failed specifically to find

that he intentionally killed the victim of the

murder, he cannot be constitutionally sen-

tenced to death. See Enmund v. Florida,

458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d

1140 (1982). We recently addressed this

type of claim in Ross v. Hopper, 716 F.2d

1528 (11th Cir.1983). Ross is particularly

helpful in resolving Henry's claim. —

In Ross, the petitioner also claimed that

he could not be sentenced to death on the

basis of a felony murder conviction, citing

Enmund. We noted that in Enmund the

evidence did not demonstrate that Enmund

participated in the killing. It appeared that

all Enmund had done was to drive the geta-

way car. Sec 102 S.Ct. at 3378. In Ros,

the evidence demonstrated that the peti-

tioner fired the fatal shot; we therefore

concluded that he could constitutionally be

sentenced to death even though he was not

charged with intent-to-kill murder. At

1533.

[7] The same is true in this case. Henry

bound and gagged his victim, tortured him,

and cut him with a razor blade. The victim

died by strangling on the gag Henry placed

in his mouth. Henry claims that he did not

intend that the victim die. He cannot ar-

gue, however, that he did not perform the

fetal act with intent at least to seriously

and wantonly harm the victim. He had no

accomplice. Thus, Enmund is no bar to the

death sentence here.

{8] Henry next claims that he was de-

nied effective assistance of counsel at his

sentencing hearing. First, he notes that his

attorney did not object to the trial judge's

charge, which failed to instruct the jury

that aggravating circumstances must be

concluded that the failure of the judge to

give this instruction was harmless beyond a

quested it.

- 6a -

reasonable doubt. Sec supra § II. In

Washington v. Strickland, 693 F.2d 1243

(11th Cir.1982) (en banc), cert. granted, ——

U.S. ——, 103 S.Ct. 2451, 77 L.Ed.2d 1332

(1983), we set forth a two-part test for

ineffective assistance claims. The petition-

er must show both ineffective assistance

and prejudice. 693 F.2d at 1258. Here,

Henry was not prejudiced because the fail-

ure to give the instruction was harmless

beyond a reasonable doubt. We therefore

reject this claim.

(9,10) Henry also claims that his coun-

sel was ineffective because he failed to ob-

ject to the jury charge allowing considera-

tion of nonstatutory aggravating factors.

Although this instruction, under Barclay,

does not constitute constitutional error, see

supra § I, it was erroncous under state law.

Nevertheless, the failure to object did not

deprive Henry of his right to “reasonably

effective” counsel under the circumstances.

See Washington, 693 F.2d at 1250. The

Constitution does not mandate error-free

counsel. Given that the judge’s reliance on

the nonstatutory factor is constitutional un-

der Barclay, we think it would be anoma-

lous to hold the failure of Henry's counsel

to object to the charge to be unconstitution-

a] assistance.

{11,12) Henry next contends that vari-

ous constitutional deficiencies in his sen-

tencing proceeding rendered that proceed-

ing unreliable, standardless, and arbitrary.

See generally Godfrey v. Georgia, 446 U.S.

420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

First, Henry argues that reliance by the

trial ‘edge on the § (5d) aggravating cir-

cumstance, murder while committing rob-

bery, resulted.in the automatic imposition

of the death penalty in his case. This argu-

ment has no merit. The sentencing author-

ity clearly has discretion in deciding wheth-

er to :mpose the death penalty. See Bar-

clay, 103 S.Ct. at 3431 (Stevens, J., concur-

ring). It is certainly not unconstitutional

for the state of Florida, in constructing a

6 In this section of his brief, Henry also raised

721 FEDERAL REPORTER, 24 SERIES

death sentencing procedure, to consider

murders committed in the course of other

dangerous felonics to be reprehensible.

Nor, as Henry argues, does the use of the

underlying felony shift the burden of proof

to the defendant: the state must neverthe-

less prove the existence of aggravating cir-

cumstances. The Supreme Court has held

the Florida statute constitutional. See

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

2960, 49 L.Ed.2d 913 (1976). Henry raises

no argument here that convinces us that

this case is nut controlled by Proffitt.

[13] Second, Henry argues that the trial

judge improperly regarded the aggravating

circumstances of murder in the commission

of a robbery and murder for pecuniary gain

as separate and distinct aggravating cir-

cumstances in violation of Provence v.

State, 337 So.2d 783 (Fla. 1976), éert. denied,

431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065

(1977). Henry's reading of Provence is cor-

rect as a matter of state law. We believe,

however, that the decision of the Supreme

Court in Barclay, — U.S. ——, 103 S.Ct.

3418, 77 L.Ed.2d 1134 (1983), controls our

resolution of this issue for the reasons set

forth in section 1, supra The trial judge

found no mitigating circumstances, and we

cannot conclude that the state-law error by

the trial judge raised the possibility that

the death sentence in this case was not

“imposed in a consistent rational manner.”

Td. 108 S.Ct. at 3429 (Stevens, J., concur-

ring). The record gives no indication that

the sentencing judge considered it impor-

tant that the same facts supported two

statutory provisions. We therefore reject

Henry’s<claim on this ground.

(14) Henry's final contention also does

not convince us that his sentencing hearing

was unreliable and arbitrary. He contends

that the trial judge erred by imposing the

death sentence immediately after the jury

recommended a life sentence. The judge in

this case expressly stated on the record that

he had carefully considered the case for

some time and felt prepared to rule without

delay. This is not constitutional error.§ —

the claim that the trial judge improperly con-

- Ja-

HENRY v. WAINWRIGHT

997

CXe as 721 F246 990 (1983)

Henry's final claim also rests essentially

on the argument that he was arbitrarily

sentenced to death He contends that the

Florida Supreme Court's appellate review

was improper, that the death penalty has

been disproportionally applied in his case,

and that the aggravating circumstances re-

lied on by the trial judge are unconstitu-

i vague.

A. The Florida Supreme Court Review.

In reviewing cases in which the jury rec-

ommends a sentence of life, the Florida

Supreme Court employs a standard of re-

view of whether the facts supporting the

death sentence are “so clear and convincing

that virtually no reasonable person could

differ.” Tedder v. State, 322 So.2d 908, 910

(Fla.1975). The Florida Court apparently

does not employ the clear and convincing

standard when the jury recommends death.

In this case, seven jurors voted in favor of

the death penalty and five voted against it;

Henry claims that, given the close vote, the

distinction drawn by the Florida Court for

the purposes of selecting the standard of

appellate review is unconstitutional.

The state, citing LeDuc v. State, 365

So.2d 149 (Fla.1978), cart. denied, 444 U.S.

885, 100 S.Ct. 175, 62 L.Ed2d 114 (1979),

argues that the standards of review do not

differ significantly’ and that in each case

the Florida Court simply follows a rule of

giving weight to the recommendation of the

jury. We need not, however, engage in an

examination of the fine points of the stan-

dard of appellate review used by the Flori-

da Supreme Court. In Proffitt v. Florida,

423 US. 242, 249, 96 S.Ct 2960, , 49

L.Ed2d 913 (1976), and Barclay v. Florida,

— US. ——, 108 S.Ct 3418, 3426-27, 77

ommendation of the jury; however, in both

cases the Court implied inat the Florida

Court's review is constitutional. Although

the Supreme Court did not address the spe-

cific issue before us, it directly relied on the

Florida Court's review both to uphold the

constitutionality of the Florida statute,

Proffitt, and to uphold the constitutionality

of the sentencing judge's reliance on a non-

“Statutory aggravating circumstance, Bar-

clay.

(15,16) Given the Supreme Court's re-

liance on the Florida Court's methods of

review, we conclude that the Court finds

those methods constitutionally valid. It is

not unreasonable for the Florida Court to

scrutinize cases in which the trial judge

ignores the jury's recommendation of a life

sentence under a different standard from

other cases. Henry does not argue that the

Florida Court's review of his sentence was

inadequate, and it appears that in every

case the Florida Court conducts a meaning-

ful review. It is not the function of this

court to legislate state laws and procedures;

we only evaluate constitutional attacks

upon them. See Moore v. Balkcom, 716

F.2d 1511 at 1517 (lith Cir.1983) (giving

deference to state owrt procedures). Un-

der this standarc, the Florida Supreme

Court's review coriainly affords Henry no

basis for relief.

B. Disproportionate Application.

[17] Henry argues that statistics intro-

duced by him at the district court show that

the death penalty has been applicd in a

discriminatory manner because, in Orange

County, 16.3% of all capital indictments rc-

sult in a death sentence and 41.7% of all

convictions result in a death sentence,

whereas the statewide percentages are 9.7%

and 24.3% respectively. This assertion is

without merit for two reasons.

of a jury should not be disturbed if all rele-

ble persons could not agree with the recom-

mendation.

365 So.2d at 15).

First, in the district court, John Fosnacht,

administrative officer in charge of records

at the Orange County courts, testified that

the statistics relied on by Henry are based

on erroncous data. According to Fosnacht,

when accurate data is used, the Orange

County percentages are 13.2% and 26.%%,

respectively. The district court relied on

Fosnacht's testimony to conclude that the

death penalty is not disproportionately ap-

plied in Orange County." The district

court's conclusion—with which we agree—

alone requires that we reject Henry's

claim.’

Even if Henry's statistics were accurate,

however, there would be no constitutional

violation in this case. Henry alleges no

racial, sexual or other inherently suspicious

discrimination, and he docs not argue that

the death penalty is somehow unsuited in

his particular case. He does not raise a

claim that the Florida Court has failed

properly to conduct a proportionality re-

view. In essence, he claims only that the

Florida death penalty is arbitrary and ca-

pricious as applied, and we have rejected

that argument. See Spinkellink v. Wain-

wright, 578 F.2d 582, 612-16 (5th Cir.1978).

Recently, in Maggio v. Williams, — U.S.

——, 104 S.Ct. 311, 77 L.Ed.2d —— (1983),

the Supreme Court refused to review a

claim that the Louisiana Supreme Court's

proportionality review is inadequate be-

cause the Louisiana Court makes compari-

sons only on a district-wide basis"® The

Supreme Court decided that the issue

presented by the Fifth Circuit's ruling

agzinst Williams does not warrant a writ of

certiorari and vacated Williams’ stay of ex-

ecwtion. If anything, the issue in Magvio is

more difficult than in this case: by decidiug

against Williams (in effect), the Court

county to county, but that the state su-

& Henry does not argue that the district court's

721 FEDERAL REPORTER, 2d SERIES

preme court need not review those differing

applications to determine whether they are

disproportionate. We therefore reject Hen-

ry's claim.

C. Vague Application of Aggravating

Circumstances.

(18) Henry argues that the following

Florida aggravating circumstances—“espe-

cially heinous, atrocious, or cruel,” Fla.Stat.

Ann. § 921.141(5\h), “created a great risk

of death to many persons,” § 921.141(5Xc),

and “for the purpuse of avoiding ... a

lawful arrest,” § 921.141(5Xe}—have beon

applied arbitrarily and capriciously in Flori-

da. The application of the second and third

circumstances is not material: the trial

judge did not rely on the § (5Xc) and

§ (5Xc) factors in this case. We also find:

no merit in Henry's claim based on the

§ (5Xh) factor. We have read the cases

that, according to Henry, show uneven ap-

plication of that factor, and we do not find

that they support Henry's contentior.. For

example, in Halliwell v. State, 323 So.2d 557

(Fla.1975), a case in which the Florida Court

invalidated a triai judge's finding of the

§ (5h) factor, the heinous and atrocious

acts occurred after death; Hal/: well there-

fore was a proper case in which to disallow

reliance on the § (5Xh) factor. After re-

viewing the Florida cases, we find nothing

improper in the action of the Florida Court.

Henry also cannot successfully argue that

the application of the § (5h) circumstance

in this case is unconstitutional. The vile

and atrocious acts committed by Henry

upon his victim and before his victim's

death clearly afford a sufficient basis to

support a finding based on § (5Xh) in this

case. See Burger v. Zant, 718 F.2d 979 at

982-87, Slip Op. at 308-14 (11th Cir.1983)

(upholding application of similar § (b\7)

circumstance as applied in Georgia).

The judgment of the district court is AF-

FIRMED in part and REVERSED in part.

ted by reference to the presence or absence of

aggravating and mitigating circumstances.

t@. The Court addressed the issue in deciding to

vacate a stay issued by the Fifth Circuit Court

of Appeals. .

- 9a -

APPENDIX 8B

APPENDIX B

[ORDER ON REHEARING)

IN T * UNITED STALES CouRT OF P* >EALS FILED

U.S. COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT

SM 2 5 CSA

No. 80-5184 | oa

SPENCER D. MERCER

CLERK

———

JAMES ‘DUPREE HENRY,

‘ Petitioner-Appellee,

Cross Appellant,

versus

LOUIE i. WAINWRIGHT, Secretary, Dept. of Corrections,

Respondent-Appellant,

Cross~Appellee.

Appeal from the United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING AND SUGGESTION FOR KEHEARING EN BANC

(Opinion 12/13/83 , 11 Cir., 198, F.2d ).

Before HILL, HENDERSON and SMITH**, Circuit Judges.

PER CURIAM:

**Hon. Edward C. Smith, U. S. Circuit Judge for the Federal

Circuit, sitting by designation.

- lb «

ORDER RECALLING MANDATE AND

ORDER DENYING PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

The motion of JAMES DUPREE HENRY for recall of the

mandate issued upon our judgment and Opinion of December i3,

1983 is before us. The motion points Out that our mandate issued

with the opinion and was not held in this court in the usual

fashion (Rule 27(d), Rules of the United States Court of Appeals

for the Eleventh Circuit) for 21 days following the release of

the court's opinion and for 7 days following denial of a motion

for rehearing. The premises considered, it is ORDERED that the

mandate be recalled and remain in this court as if it had not

issued. The issuance of the mandate is not Stayed. In view of

the order in Paragraph II, below, it is expected that it wil]

issue seven (7) days after the date of this order.

Eas

The Petition for Rehearing on behalf of JAMES DUi REE

HENRY is DENIED and no member of this panel nor other Judge in

o 2b «

regular active service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 26), the Suggestion

for Rehearing En Banc is DENIED.

EN ERED/FOR THE AKG.

nana States Circuit Judge

= 3b -

APPENDIX ¢€

APPENDIX C

STATUTORY PROVISIONS INVOLVED

Florida Statutes (1973)

782.04 Murder.—

(1a) The unlawful killing of a human being, when perpe-

trated from a premeditated design to effect the death of the

person killed or any human being, or when committed by a

person engaged in the perpetration of. or in the attempt to

perpetrate, any arson, rape, robbery, burglary, kidnapping,

aircraft piracy, or the unlawful throwing, placing, or discharg-

ing of a destructive device or bomb, or which resulted from the

unlawful distribution of heroin by a person over the age of

seventeen years when such drug is proven to be the proximate

cause of the death of the user, shall be murder in the first

degree and shall constitute a capital felony, punishable as

provided in § 775.082.

(b) Inall cases under this section, the procedure set forthin

§ 921.141 shall be followed in order to determine sentence of

death or life imprisonment.

(2) When perpetrated by any act imminently dangerous to

another and evincing a depraved mind regardless of human

life, although without any premeditated design to effect the

death of any particular individual, or when committed in the

perpetration of, or in the attempt to perpetrate, any arson,

rape, robbery, burglary, kidnapping, aircraft piracy, or the

unlawful throwing, placing, or discharging of a destructive

device or bomb, except as provided in subsection (1), it shall be

murder in the ual degree and shall constitute a felony of the

first degree, punishable by imprisonment in the state prison

for life or for such term of years as may be determined by the

court.

(3) When perpetrated without any design to effect death,

by a person engaged in the perpetration of, or in the attempt to

perpetrate, any felony other than arson, rape, robbery,

burglary, kidnapping, aircraft piracy, or the unlawful throw-

ing, placing, or discharging of a destructive device or bomb, it

shall be murder in the third degree and shall constitute a felony

of the second degree, punishable as provided in § 775.082,

§ 775.083, or § 775.084.

921.141 Sentence of death or life imprisonment for

capital felonies; further proceedings to determine

sentence.—

(1) SEPARATE PROCEEDINGS ON ISSUE OF

PENALTY.—Upon conviction or adjudication of guilt of de-

fendant of a capital felony, the court shall conduct a separate

sentencing proceeding to determine whether the defendant

should be sentenced to death or life impriscnment as autho-

rized by § 775.082. The proceeding shal! be conducted by the

trial judge before the trial jury as soon as practicable. If the

trial jury has been waived or if the defendant pleaded guilty,

the sentencing proceeding shall be conducted before a jury

impaneled for that purpose unless waived by the defendant. In

the proceeding, evidence may be presented as to any matter

that the court deems relevant to sentence, and shall include

matters relating to any of the aggravating or mitigating cir-

cumstances enumerated in subsections (6) and (7) of this sec-

tion, Any such evidence which the court deems to have proba-

tive value may be received, regardless of its admissibility

under the exclusionary rules of evidence, provided the defend-

ant is accorded a fair opportunity to rebut any hearsay state-

ments. However, this subsection shall not be construed to

authorize the introduction of any evidence secured in violation

of the constitutions of the United States or of the State of

Florida. The state and the defendant or his counse! shall be

permitted to present argument for or against sentence of

death.

(2) ADVISORY SENTENCE BY THE JURY.—After

hearing all the evidence, the jury shall deliberate and render

an advisory sentence to the court, based upon the following

matters:

(a) Whether sufficient aggravating circumstances exist as

enumerated in subsection (6);

(bo) Whether sufficient mitigating circumstances exist as

enumerated in subsection (7), which outweigh the aggravating

circumstances found to exist; and

should be sentenced to life *[imprisonment] or death.

(3) FINDINGS IN SUPPORT OF SENTENCE OF

DEATH.—Notwithstanding the recommendation of a major-

ity 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 is based as to the facts:

(a) That sufficient aggravating circumstances exist as

enumerated in subsection (6), and

(b) That there are insufficient mitigating circumstances, as

enumerated in subsection (7), 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 the

circumstances in subsections (6) and (7) and upon the records of

the trial and the sentencing proceedings. If the court does not

make the findings requiring the death sentence, the court shall

impose sentence of life imprisonment in accordance with

§ 775.082.

(4) REVIEWOF JUDGMENT ANDSENTENCE.—The

judgment of conviction and sentence of death shall be subject

to automatic review by the Supreme Court of Florida within 60

days after certification by the sentencing court of the entire

record unless the time is extended for an additional period not

to exceed 30 days by the supreme court for good cause shown.

Such review by the supreme court shall have priority over all

other cases and stiall be heard in accordance with rules prom-

ulgated by the supreme court.

(5) AGGRAVATING CIRCUMSTANCES.—

Aggravating circumstances shall be limited to the following:

(a) The capital felony was committed by a person under

sentence of imprisonment.

(b) The defendant was previously convicted of another

capital felony or of a felony involving the use or threat of

violence to the person.

to many persons.

(d) The capital felony was committed while the defendant

was engaged, or was an accomplice, in the commission of, or an

attempt to commit, or flight after committing or attempting to

commit, any robbery, rape, arson, burglary, kidnapping, or

aircraft piracy or the unlawful throwing, placing, or discharg-

ing of a destructive device or bomb.

(e) The capital felony was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an escape

from custody. ’

(f) The capital felony was committed for pecuniary gain.

(g) The capital felony was committed to disrupt or hinder

the lawful exercise of any governmental function or the

enforcement of laws.

(h) The capital felony was especially heinous, atrocious, or

cruel.

(6) MITIGATING CIRCUMSTANCES.—Mitigating cir-

cumstances shall be the following:

(a) The defendant has no significant history of prior crimi-

nal activity.

(b) The capital felony was committed while the defendant

was under the influence of extreme mental or emotional dis-

turbance.

or consented to the act.

(d) The defendant was an accomplice in the capital felony

committed by another person and his participation was rela-

tively minor.

(e) The defendant acted under extreme duress or under

the substantial domination of another person.

(f) The capacity of the defendant to appreciate the crimi-

nality of his conduct or to conform his conduct to the require-

ments of law was substantially impaired.

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

— |

RECEIVED |

No. 73-G430

APR 2» 1084

esas OFFICE OF THE = |

SUPREME COURT OF THE UNITED STATES SUPREME courT, U.S.

OCTOBER TERM, 1983

See ett ee SS SSS StS SSS SSS SSS SSS SS SS SSS SSS SH SS SS Sess ssssesssesssrsresz=e

JAMES DUPREE HENRY,

Petitioner,

vs.

LOUIE L. WAINWRIGHT, etc.,

Respondents.

See eee eee ee See See Se SS SSS SSS SSS SSS SSS SSS SSS SSS SSS SSS SSS Sse ssTseee=

AFFIDAVIT IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS

I, JAMES DUPREE HENRY, being first duly sworn, depose and

say that I am the petitioner in the above entitled case; that in

support of my motion to proceed 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 to relief.

I further swear that the responses which I have made to

questions and instructions below are true.

1. Are you presently employed? Yes [ ] No WN]

a. If the answer is "Yes", state the amount of your salary

or wages per month, and give name and address of your employer.

b. If the answer is "No", state the date of last employment

and the amount of the salary and wages per month which you

received.

2. Have you received within the past twelve months any money

from any of the following sources?

a. Business, profession or from self employment? Yes [ ]

no WN)

b. Rent payments, interest or dividends? Yes [ ] No ™

c. Pensions, annuities or life insurance payments? Yes [ |

No (™

ad. Gifts or inheritance? yes [ } No WN]

e. Any other sources? Yes [ ] No N]

If the answer to any of the above is “yes", describe each

source Of money and state the amount received from each during

the past twelve months.

3. Do you own cash, or do you have money in a checking or saving

account? Yes [ ] No W] (Include any funds in prison accounts)

If answer is "yes", state the total value of the items

owned.

4. Do you own any real estate, stocks, bonds, automobiles, or

other valuable property (excluding ordinary household furnishings

and clothing)? Yes [ } No WN]

If the answer is "yes" describe the property and state its

approximate value.

5. List the persons who are dependent upon your Support, state

your relationship to those persons and indicate how much you

contribute toward their support.

I understand that a false statement to any questions in this

affidavit will subject me to penalties for perjury.

"I declare under penalty of perjury that

the foregoing is true and correct."

STATE OF FLORIDA )

COUNTY OF BRADFORD )

JAMES DUPREE HENRY being first duly sworn under oath,

presents that he has read and subscribed to the above and states

that the inf»vrmation therein is true and rrect.

My Commission Expires:

No. 93-6430

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

See eee eee SEBS SSS SSS SSS SSS SS SSS SSS SS SSS SSS SSS SS SS SS SSS SSS SST STS TE

JAMES DUPREE HENRY,

Petitioner,

V6.

LOUIE L. WAINWRIGHT, etc.,

Respondents.

ee eee see ee ee see SSeS SSS SSS SSS SSH SSS SSS SSS Ss SSS SS SSS ese SSS SSS ssss

AFFIDAVIT IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS

I, JAMES DUPREE HENRY, being first duly sworn, depose and

say that I am the petitioner in the above entitled case; that in

support of my motion to proceed 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 to relief.

I further swear that the respenses which I have made to

questions and instructions below are true.

1. Are you presently employed? Yes [ ] No WN]

a. If the answer is "Yes", state the amount of your salary

or wages per month, and give name and address of your employer.

b. If the answer is "No", state the date of last employment

and the amount of the salary and wages per month which you

received.

2. Have you received within the past twelve months any money

from any of the following sources?

a. Business, profession or from self employment? Yes { ]

b. Rent payments, interest or dividends? Yes [ ] No ™

c. Pensions, annuities or life insurance payments? Yes [ ]

no /™

d. Gifts or inheritance? yes [ ] No N]

e. Any other sources? Yes [ ] No WN]

If the answer to any of the above is "yes", describe each

source of money and state the amount received from each during

the past twelve months.

3. Do you own cash, or do you have money in a checking or saving

account? Yes [ ] No WW] (Include any funds in prison accounts)

If answer is "yes", state the total value of the items

owned,

4. Do you own any real estate, stocks, bonds, automobiles, or

other valuable property (excluding ordinary household furnishings

and clothing)? yes [ ] No ™]

If the answer is "yes" describe the property and state its

approximate value.

5. List the persons who are dependent upon your support, state

your relationship to those persons and indicate how much you

contribute toward their support.

I understand that a false statement to any questions in this

affidavit will subject me to penalties for perjury.

"I declare under penalty of perjury that

the foregoing is true and correct."

STATE OF FLORIDA )

COUNTY OF BRADFORD )

JAMES DUPREE HENRY being first duly sworn under oath,

presents that he has read and subscribed to the above and states

that the information therein is true and a

ature o oe

to before me this YS i of f. 1984.

By Commission Expires Scot. 25, 1967

My Commission Expires:

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.