Petition — SMITH v. FLORIDA (No. 83-6549)

Supreme Court brief1983

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JIMMY LEE SMITH,

Petitioner, :

STATE OF FLORIDA,

Respondent.

PETITICGN FOR WRIT CF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES

ROBERT AUGUSTUS HARPER, JR.

Pro Bono Counsel for Petitioner

Robert Augustus Harper, Jr. & Assoc.

308 East Park Avenue

Post Office Box 10132

Tallahassee, Florida 32302

(904) 224-5900

ON PRESENTED FOR REVIEW

INGTON, CASE NO.

THE UNITED STATES CASE STRICKLAND v. WASH

-l)),

TABLE OF CONTENTS

Question Presented for Review

Table of Contents

Table of Citations

Citation to Opinions Below

Jurisdictional Grounds

Constitutional and Statutory Provisions

Statement of the Case

Appendices

Appendix A - Statement of Judicial Acts to Be

Reviewed, filed 9 March 1983

Appendix B - Opinion of Florida Supreme Court,

rendered 12 November 1981

Opinion of Florida Supreme Court,

rendered 10 November 1983

Appendix D - Order of Florida Supreme Court,

rendered 8 March 1984

Cases

Armstrong v. State,

429 So.2d 287 (fla. 1983)

Bonner v. City of Prichard, Alabama,

661 F.2d 1206 (llth Cir. 1981)

Knight v. State,

394 So.2d 997 (Fla. 1981)

Smith v. State,

407 So.2d 894 (Fla. 1981) cert. denied 456

U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982)

Smith v. State,

445 So.2d 323 (Fla. 1983)

Stein v. Reynolde Securities, Inc.,

667 F.2d 33 (llth (llth Cir. 1982)

Strickland v. Washington,

U.S. Sup. Ct. Case No. 82-1554

United Statee v. DeCoeter,

624 F.2d 196 (D.C, Cir, 1979) (en banc)

Washington v. Strickland,

673 F.2d 897 (5th Cir. 1982)

Washington v, Strickland,

693 F.2d 1243 (5th Cir, 1982) (en banc)

Other

Amendment VI, U.S. Constitution

Amendment XIV, U.8. Constituticn

Conflitti, New Fooue on Prejudice in Ineffective

Standard, 21 Paex.Ceim-L.R. 26, (Sommer 1982)

Rule 17,1(b), U. S. Sup. Ct. Rules

Rule 3.850, Fla. R. Crim, P.

28 U.S.C. §1257 (3)

28 U.S.C. §1267

2, 5, 6

1, 2, 3

1, 3, 6

2, 3, 4, 5, 6

> fF NON KF &

IN THE SUPREME COURT OF THE UNITED

OCTOBER TERM 1983

CASE NO.

APPLICATION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

JIMMY LEE SMITH, in forma pauperis, by and through undersigned

counsel, pro bono, petitions this Court to issue its writ of certiorari

to the Supreme Court of Florida, as follows:

I. ‘THE SUPREME COURT CF FLORIDA, A COURT CF LAST RESORT, HAS DECIDED THE

FEDERAL QUESTION OF EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS IN A WAY WHICH CONFLICTS WITH THE UNITED STATES

COURT OF APPEALS, ELEVENTH CIRCUIT [U.S. SUP. CT. RULE 17.1(b)], and

ULTIMATE RESOLUTION IS PENDING IN THE SUPREME COURT OF THE UNITED STATES

CASE STRICKLAND v. WASHINGTON, CASE NO. 82-1554.

II, GPDIONS BELOW

Direct appeal of the original conviction is reported as Smith v.

State, 407 So.2d 894 (Fla. 1981), cert. denied 456 U.S. 984, 102 S.Ct. 2260,

72 L.Ed.2d 864 (1982). Appeal of denial of Petitioner's Motion for Post

Conviction Relief [Fla. R. Crim. P. Rule 3.850] is found, Smith v. State,

445 So.2d 323 (Fla. 1983).

III. JURISDICTICNAL GROUNDS

Petitioner seeks to invoke the discretionary jurusdiction of the

Supreme Court of the United States pursuant to 28 U.S.C. §1257(3) under

the considerations of Rule 17.1(b), U.S. Sup. Ct. Rules.

Petitioner was convicted in the Fourteenth Circuit Court, Jackson

County, Florida, for the capital murder of two persons. Pursuant to jury

recommendation the state trial judge imposed the death sentence on 04

Ocotber 1978. A death warrant was signed by the Governor of Florida am

02 March 1983, and Petitioner, through other counsel saght post conviction

relief before the same trial judge by means of Rule 3.850, Fla. R. Crim. P.

The Motion for Post Conviction Relief was denied without hearing on

09 March 1983, and an appeal was perfected to the Supreme Court of Florida

on the same date. A stay of executicn followed. The Supreme Court of

Florida denied relief and affirmed the proceedings by written opinion on

10 Novenber 1983, reported as Smith v, State, 445 B0,4ad 323 (Fla. 1983),

rehearing was denied on 08 March 1984. The opinion hinges upon the federal

question of effective assistance of counsel under the Sixth and Fourteenth

Amendments. The Supreme Court of Florida followed its long standing four

pronged test of Knight v. State, 394 So.2d 997 (Fla. 1981):

1. The specific omission or overt act

upon which the claim of ineffective

assistance of counsel is based must be

detailed in the appropriate pleading.

2. The defendant must meet the burden of

proving that the specific omission or overt

act was a substantial and serious deficiency

measurably below that of competent counsel.

3. The defendant must show a likelihood

that the deficient conduct affected the

outcome of the proceeding.

4. The State must fail to rebut the questions

of ineffective assistance by showing beyond

reasonable doubt that there was no prejudice

in fact.

The Supreme Court of Florida squarely noted [Jimmy Lee] Snit” v.

State, supra, 445 So.2]3 323 at 325, that

Appellant has failed to allege specific

facts to demonstrate that, but for any of

the claimed omissions of trial counsel,

the results of appellant's case would have

been different.

The Knight decision cited as authority for the “outcome determina-

tive" element of its four prong test United: States v. DeCoster, 624 F.2d

196 (D.C. Cir. 1979) (en bane), Knight v. State, supra, 394 So.2d at 1001.

This element of the DeCoster rule was specifically rejected in Washington

v. Strickland, 693 F.2d 1243, 1261 (Sth Cir. 1982) (en bano) 2,

T/_ Binding on the Eleventh Circuit, Bonner v. City of Prichard,

Alabama, 661 F.2d 1206 (llth Cir. 1981)3 Stein v. Reynolds Securities, Ino.,

667 F.2d 33 (llth Cir. 1982). °

-2-

Washington provided a three prong test to apply to claims of ineffective

assistance:

1. Whether the right to effective

assistance of counsel] was violated.

2. Whether the petitioner suffered

actual and substantial detriment to the

conduct of his defense.

_ 3. Whether, in the context of the entire

case, the detriment suffered was harmless

beyond a reasonable doubt.

Washington v. Strickland, supra, 693 F.2d at 1263-64.

The Supreme Court of Florida squarely noted [Jinmy Lee] Smith v.

State, eupra, 445 So.2d at 325 that:

- « » the defendant has the burden to show

that this deficiency when considered under

the circumstances of his case, was substan-

tial enough to demonstrate a prejudice to

the defendant to the extent that there is

a likelihood that the deficient conduct

affected the outcome of the court proceedings.

The conflict clearly reflects jurisdiction may vest with the

Supreme Court of the United States. Strickland v. United States, Case No.

82-1554.

IV. CONSTITUTIONAL AND STATUTORY PROVISIONS

Amendment VI of the Constitution of the United States provides

him

ing witnesses in his favor, and to have

the assistance of counsel for his defense.

Amendment XIV of the Constitution of the United States provides

inter alia, that:

deprive any person of life, liberty

or property, without due process of

law, nor deny to any person within its

jurisdiction the equal protection of

the law.

28 U.S.C. §1267 provides, inter alia, that:

V. STATEMENT CF THE CASE

In Washington v. Strickland, a habeas corpus petitioner alleged

that his attorney had not adequately investigated character evidence

that could have been presented in mitigation of his sentence. The Fifth

Circuit en banc modified an earlier panel decision in the same case

(Washington v. Strickland, 673 F.2d 879 (5th Cir. 1982)]}. The earlier

panel decision itself had modified Fifth Circuit law on ineffective

assistance of counsel. The panel established a standard consisting of two

basic elements. First, the defendant was required to >rove that “but for

his counsel's ineffectiveness his trial, but not necessarily its outcome,

would have been aitered in a way helpful to him." (Id., 673 F.2d at 902).

Overall, the panel's standard is quite similar to that adopted by the en

banc court, the Washington 11 2/ standard; a defendant mst first prove

a violation of the Fifth Circuit's "reasonably likely to render, and

rendering, reasonably effective assistance" standard.

2/ See; Conflitti, New Focus on Prejudice in Ineffective Assistance

of Counsel Cases: The Assertion of Rights Standard. 21 Amer. Crim. L. R. 28

(Summer 1983).

-4-

The second element of the standard relates to the showing of

prejudice. The Court of Appeals required the defendant to prove that

counsel's ineffectiveness “resulted in actual and substantial disadvantage

to the course of [defendant's] defense." The requirement does not require

proof of prejudice to the outcome of the proceedings (Washington v. Strick-

land, supra, 693 F.2d at 1262). The state has the opportunity to rebut

defendant's showing by demonstrating that defense counsel's ineffectiveness

was harmless to the outcome of the trial, similar to the Knight v. State

rationale.

Prejudice flowing from any counsel ineffectiveness must be shown.

Prejudice measured under the test enunciated in Washington v. Strickland

requires a petitioner to demonstrate that counsel's ineffectiveness

“resulted in actual and substantial disadvantage to the course of his

datenas” tat need not chose tint this “Gentaaheg deveined the ebiete

of the entire case" (693 F.2d at 1262). The Supreme Court of Florida

has acknowledged the "different and more elaborate analysis set forth in

Washington v. Strickland" [Armetrong v. State, 429 So.2d 287, 290 (Fla.

1983)]. Apparently the Supreme Court of Florida has observed that the

Knight v. State test may not fit all challenges of ineffective assistance of

counsel claims (Id.) 3/

The major difference of the Washington II standard is focus on

prejudice. Knight requires a defendant to show that the ineffective

assistance prejudiced the outcome of the trial, an “outcome determinative"

test. The Washington II standard, however, rejected the outcome determina-

tive test because it compelled the reviewing court to substitute itself for

the original factfinder. Being considered a speculative test, the analysis

was avoided.

Under Washington II the burden on the petitioner is to show that

ineffectiveness of counsel resulted in actual and substantial disadvantage

3/ We must believe the Xnight test reaches the legally and

constit y correct result in this case." Armstrong v. State, supra,,.

429 So.2d at 290.

to the course of his defense (Washington v. Strickland, 693 F.3d at 1262).

The point of departure is the federal standard of the Fifth and Eleventh

Circuits does not require a petitioner to show the disadvantage caused

by counsel's deficiency adversely deteremined the outcame, only the

course of the defense. Both decisions articulate standards under the

Sixth Amendment to the Constitution of the United States. Until Strickland

v. Washington (U.S. Sup.Ct. Case No. 82-1554) is decided the duality may

be expected to continue.

The application of the Knight test by the Florida Supreme Court to

the case of Petitioner effectively required him, cn the basis of a record

undeveloped by an evidentiary hearing, to make specific allegations of

fact which, if true, would show conclusively that the outcome of the trial

would have been different in order to be entitled to an evidentiary hearing.

The application of the “outcome determinative" test enunciated in Xnight v.

State, 394 So.2d 997 (Fla. 1981) rather than that set forth in Washington

v. Strickland, 693 F.2d 1243 (5th Cir. 1982) (en banc). This error was

preserved in the Statement of Judicial Acts to be Reviewed filed immediately

after denial of the Motion for Post Conviction Relied on 09 March 1983. ‘The

same point was also fully briefed and argued before the Florida Supreme

Court in the appeal fram denial of the Motion for Post Conviction Relief.

Respectfully Submitted.

Robert Augustus Harper, Jr. & Assoc.

308 East Park Avenue

Post Office Box 10132

Tallahassee, Florida 32302

(904) 224-5900

" OCTOBER TERM 1983

| IN THE SUPREME COURT GF ‘Tua UNITED STATES

| 83-6549

i ; | RECEIVE D

STATE CF FLORIDA, : APR

: 11 1984

FICE OF rm

| SUPREME COURT ‘ES

PETITIONER, JIMW® LEE SMITH, by and through undersigned counsel and

pursuant to Rule 46.1, U.S. Sup. Ct. Rules, moves the Court for leave to

proceed in forma pauperie ard alleges:

1. ‘The Affidavit of Petitioner is attached.

2. Leave to appeal in forma pauperis was sought and granted in the

State court of final resort the Supreme Court of Florida; review of the

State court judgment is sought.

3. ‘The substantive document, being a Petition for wit of Certiorari

is being filed contemporaneously and separately.

Respectfully Submitted.

AFFIDAVIT IN SUPPORT CF MOTION TO

PROCEED IN FORMA PAUPERIS

I, JIMGE LEE SMITH , being first duly sworn, depose

and say that I am the Petitioner in the above-entitled cause; that in

support of my motion to proceed on petition for writ of certiorari without

being required to prepay fees, costs or give security tirefor, I state

‘hat 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 redress

and that the issues which I desire to present on review are the following:

I further swear that the responses which I have made to the questions anid

instructions below relating to my ability to pay the costs of prosecuting

the appeal are true.

1. Are you presently employed?

(a) If the answer is yes, state the amount of your salary and

give the name and address of your employer.

(b) If the anger is

Sn ee re ee ee ee ee

no,

2. Have you received within the past twelve months any income from a

business, profession or other form of self-employment, or in the form

of rent payments, interest, dividends, or other source?

(a) If the answer is yes, describe each source of income and state

the amount received from each during the past twelve mnths.

4es7//No

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

(a) If the answer is yes, state the total value of the items amed.

5. List the persons who are dependent upon you for support and state your

_Telationship to those persons.

Nong

Sworn to and Subscribed before this 5ST ay of hen , 1984.

State of Florida at Large:

Ny Gomis) exe ros Ofa/ft

_~— eee 5 6 i ll

STATE OF FLORIDA, IN THE CIRCUIT COURT OF

THE FOURTEENTH JUDICIAL

Plaintiff, CIRCUIT FOR THE STATE OF

PN CASE NOS. 5-78-200 and

ve 5-78-201

JIMMY LEE SMITH,

FLORIDA

Defendant.

STATEMENT OF JUDICIAL ACTS TO BE REVIEWED

AND DESIGNATION TO COURT REPORTER

The Defendant, JIMMY LEE SMITH, files the following

Statement of Judicial Acts to be reviewed:

1. Denial of Motion for Post-Conviction Relief

(Rule 3.850, F.R.Cr.P.)

2. Denial of Motion for Post-Conviction Relief

without full and fair hearing.

3. Denial of Motions filed with the Motion for

Post-Conviction Relief.

The Defendant files the following designation to the

Court Reporter directing preparation of the following

IN AND FOR JACKSON COUNTY,,.

transcripts:

Hearing held March , 1983.

Respectfully submitted,

Nora Leto

2422 Chestnutwood Prive

Lakeland, Florida 33801

Dennis W. Hartley

Hartley, Obernesser & Olson

407 South Tejon

Colorado Springs, Colorado 80903-:

Local Address:

222 West Pensacola Street

Tallahassee, Florida 32361

ATTORNEYS FOR THE DEFENDANTS

APPENDIX A . Al

rae.

I hereby certify that a copy of the foregoing has been

furnished by mail to JIM SMITH, Esquire, Attorney General,

State of Florida, the Capitol, Tallahassee, Floride 42301

and to LEO C. JONES, State Attorney, Bay County Courthouse,

Panama City, Florida 32401 this day of March, 1983.

804 Fi

been afforded ample opportunity to present

evidence in mitigation in the original sen-

tencing proceeding. The same reasoning

applies here.

{3} Defendant's third point is equally

unavailing. The trial court found that the

capital felony was committed while the de-

fendant was engaged in the commission of

a robbery and also that it was committed

for pecuniary gain. In its finding concern-

ing the “pecuniary gain” circumstance, the

court specifically stated that it was con-

sidered in conjunction with “robbery” cir-

cumstance. This is not contrary to the dic-

tates of Provence v. State, 337 So.2d 783

(Fla.1976), cert. denied, 431 U.S. 969, 97

S.Ct. 2929, 53 L.Ed.2d 1065 (1977), wherein

we held that in all robbery-murders only

one of these two aggravating circumstances

can be found. We assume that the judge

had Provence in mind when he specifically

considered these two circumstances in con-

junction. The word “conjunction” itself

connotes a joining together to form one.

While it may have been better practice to

omit one of the factors completely in defer-

ence to the other, we cannot say that fail-

ure to do so is error.

{4} Defendant’s last point concerning

the presentence investigation report is

without merit. The trial court is entitled

by Rule 3.710, Florida Rules of Criminal

Procedure, to draw its own conclusion from

information in the report in capital cases.

Swan v. State, 322 So.2d 485 (Fla.1975). In

accordance with the dictates of Gardner,

supra, the defendant was provided an op-

portunity to rebut.

Accordingly, the sentence of death is

hereby affirmed.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-

TON, ALDERMAN and McDONALD, JJ.,

APPENDIX B

407 SOUTHERN REPORTER, 24 SERIES

’ Jimmy Lee SMITH, Appellant,

¥.

STATE of Florida, Appeliee.

Ne. 55961.

Supreme Court of Florida.

Nov. 12, 1981.

Rehearing Denied Jan. 28, 1982

Defendant was convicted in the Circuit

Court, Jackson County, Robert L. McCrary,

Jr., J., of first-degree murder and sentenced

to death. Appeal was taken. The Supreme

Court, Adkins, J., held that: (1) the trial

court did not improperly comment on the

weight of confession evidence; (2) although

the trial court failed to instruct the jury on

weight to be given the defendant's confes-

s:ons, that error did not warrant new trial;

(3) the defendant waived any claim of error

on the g -unds that a complete record of

the proceeding below was not available

when it was his counsel that instructed the

court reporter not to report his final argu-

ment; (4) the death penalty statute does

not violate the Constitution by attempting

to govern practice and procedure; (5) de-

fendant was not entitled to new tria! on the

ground of alleged mental deficiency; (6)

the exclusion of jurors who expressed oppo-

sition to the death penalty was proper; (7)

trial court did not err by allowing the de-

fendant to waive representation by counsel

at sentencing phase of his trial; (8) aggra-

vating and mitigating circumstances were

properly considered; and (9) when there

were two aggravating circumstances, even

if one was not supported by evidence, that

would not justify reversal of the sentence.

Affirmed.

Alderman, J., concurred specially with

an opinion in which Boyd, J., concurred

Sundberg, C. J., dissented.

1. Criminal Law ¢=656(9)

In murder prosecution, comments made

by trial court that statement was freely and

STATE Fla 895

Cite an, Fin. 687 Sa.30 804

voluntarily given by defendant made at

various times during proceedings were not

improper comment on weight of confession

evidence during course of trial, since trial

judge was making, with unmistakable clari-

ty, finding for record that defendant's con-

fessions were voluntarily made. U.S.C.A.

Const.Amends. 5, 14; West's F.S.A-Const

Art. 1, § 9.

2 Criminal Law @1173.2(8)

In murder prosecution, although trial

court erred in failing to instruct jury on

weight to be given defendant's confessions,

that error did not warrant new trial where

there was other evidence upon which con-

viction could be based.

3. Criminal Law 1038.2, 1038.3

Trial court's failure to instruct jury on

weight to be given defendant's confessions

in murder prosecution was not fundamental

error, cognizable for first time on appeal, in

light of defendant’s failure to request that

instructions be given jury and to object

when court failed to do so.

4 Criminal Law e660

It was not necessary to vacate and

remand murder conviction and imposition

of death penalty, for failure to record de-

fense counsel's closing argument at guilt

phase of trial where defense counsel in-

structed court reporter not to report final

argument, in that right to complete review

was waived by such instruction.

& Criminal Law @= 1206(1)

Death penalty statute does not violate

Florida Constitution by attempting to gov-

rn practice and procedure. West's F.S.A.

$ 921.141; West's P.S_A.Const.Art 5, § 2a).

In murder prosccution, alleged evi-

srece of mental deficiency on part of de-

wr unt did not compel new trial in interest

Juetice where findings of psychologists

were considered by judge and jury and,

“hough psychologists recommended that

fondant undergo -

further tests, he specifi-

sally declined to do so.

7. Homicide = 148

In murder prosecution, psychological

findings were not so internally inconsistent

as to require reversal of impositinn of death

penalty.

& Jury 106

Three jurors who expressed opposition

to death penalty were properly excused for

cause in murder prosecution in light of tes-

timony of each juror that under no circum-

stances would he vote to put person to

death. U.S.C.A.Const.Ameni. 6.

9. Criminal Law @6414(1)

Self-representation b’ defendant in

crimina' ~roceeding: is no’. per se improper.

U.S.CA.L.>st.Amend. 6.

10. Criminal Law @641. :(2)

Waiver of one's .:gnt to counsel must

be intelligent and knowing relinquishment

of such representation. U.S.C.A.Const.

Amend. 6.

11. Criminal Law =6414(4)

In murder prosecution, trial court did

not err by allowing defendant to waive

representation by counsel at sentencing

phase of his trial where defendant was

closely questioned concerning his desire to

make closing argument himself, he was

warned of dangers of what he was doing

and discouraged from doing so. U.S.C.A.

Const.Amend. 6.

12. Homicide 354

In murder prosecution, trial court did

not err in sentencing defendant to death

penalty by considering defendant's uncor-

roborated confessions to various crimes

when there was no showing of corpus delicti

for any prior offenses in order to negate

otherwise applicable mitigating circum-

stance of lack of significant history. West's

F.S.A. §§ 921.141, 921.141(6Xa).

13. Criminal Law @= 1208(1)

Although consideration of all mitigat-

ing circumstances is required when death

penalty is imposed, decision of whether par-

ticular mitigating circumstance is proven

and weight to be given to it rest with judge

and jury. West's F.S.A. § 921.141; U.S.C.

2 tn A tle. ~ae

acticin Aint de cs 2 cite FE Vac Ot

896 Fla.

A.Const.Amends. 5, 14; West's F.S.A.Const.

Art. 1, § 9.

14. Homicide e354

In homicide prosecution, trial court did

not err in sentencing by refusing to find as

mitigating circumstances that defendant

was under influence of extreme mental or

emotional disturbance and/or that his ca-

pacity to appreciate criminality of his con-

duct or to conform his conduct to require-

ments of law was substantially impaired.

West's F.S.A. § 921.141(6Xb, f).

15. Homicide e354

In murder prosecution, even if evidence

was insufficient to prove that defendant

murdered second victim to hinder law en-

forcement, imposition of death penalty

would be justified in light of proper finding

of aggravating circumstance of heinous,

atrocious, and cruel manner of killing.

West's F.S.A. § 921.141.

Michael M. Corin and John D. C. Newton,

II, Asst. Public Defenders, Tallahassee, for

appellant.

Jim Smith, Atty. Gen. and Carolyn M.

Snurkowski, Asst. Atty. Gen., Tallahassee,

for appellee.

ADKINS, Justice.

Appellant, Jimmy Lee Smith, was con-

victed of the first-degree murders of Bonnie

Ward and her twelve-year-old daughter,

Donna Strickland. ‘The trial judge imposed

the death sentence in accordance with the

jury's advisory sentence recommendation.

We have jurisdiction. Art. V, § %&b)1),

Fla.Const.

Appellant had spent the night before the

murders as a guest in Mrs. Ward’s home,

and during the course of the evening both

of his victims had spoken disparagingly of

his girlfriend and her mother. Appellant's

girlfriend was referred to as a whore and

her mother’s childrearing abilities criticized.

On the day of the murders, appellant rode

with Mrs. Ward, her three-year-old son,

two-year-old daughter, and Donna to run

several errands. During this trip, his girl-

407 SOUTHERN REPORTER, 24 SERIES

friend and her family were again Criticized,

and at that time appellant evidently decid.

ed to kill Mrs. Ward and Donna On the

way home from the errands, Mrs. Ward

complied with appellant's request that she

drive down a deserted country road to a

spot where he claimed to have hidden »

bundle of clothing which he wished to re

trieve. After arriving at the spot, appel-

lant ordered the children to stay in the car

and forced Mrs. Ward, who by then realized

that the request was a ruse, over her prot.

estations and pleas, to accompany him oa

foot around a bend in the road. Once he

thought that they were out of the sight of

the children in the car, appellant began

choking Mrs. Ward, exhorting her to “Die,

Bitch.” After Mrs. Ward had lost con.

sciousness, Donna, who had left the car to

look for the two adults, came upon the

scene, whereupon appellant grabbed and

began choking her also. Encountering dif.

ficulty in choking Donna with his hands,

appellant held her by the neck with one

hand and with the other took from his

pocket a piece of cord which he then used to

choke her.

After Donna lost consciousness, appellant

undressed his sstill-living victims and

stabbed each repeatedly in the chest, inflict-

ing multiple wounds on both. Whatever it

was that drove him still not satisfied, he

proceeded to slit Mrs. Ward's throat and t:.

cut open Donna's chest and look at her

heart. Once he finished, appellant wrapped

the bodies in blankets, left them in the

brush, and drove the two younger children

home, where he fed them and put them to

bed. He was picked up the next day by an

officer who saw him hitchhiking.

Appellant now asks this Court to order &

new trial or, at least, a new sentencing

hearing to remedy the errors which he con-

tends occurred during his trial. We address

the issues on appeal in the order in which

he raises them.

First, appellant contends that he was de

nied due process of law and equal protec

tion of the laws within the meaning of the

Fifth and Fourteenth Amendments to the

United States Constitution and article |,

ee ee an

SMITH v. STATE

Fila. 897

Cite an, Fia.. 407 So.2d 804

section 9, of the Florida Constitution. In

support thereof, he asserts that the trial

court failed to properly instruct the jury on

the weight to be given his confessions, and

instead improperly commented thereon as

evidence during the irial.

{1} We do not agree with appellant’s

argument that the trial court improperly

commented on the weight of the confession

evidence during the course of the trial.

The comments complained of are the fol-

lowing, made at various times during the

proceedings:

The Court has ruled that the statement

has been freely and voluntarily given by

the Defendant, Jimmy Lee Smith, and

admitted into evidence. It will be for

your consideration at this time.

The Court will rule that this statement

was freely and voluntarily given. It will

be admitted into evidence at this time.

The Court will rule that that statement

was freely and voluntarily given and will

now be admitted into evidence.

We see the statements as attempts to com-

ply with the requirement expressed in Sims

v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17

L.Ed.2d 593 (1967), that the trial court

clearly indicate, in the record, its conclusion

that any confession admitted into evidence

was voluntarily made:

{T}t is not for the jury to make the pri-

mary determination of voluntariness.

Although the judge need not make for-

mal findings of fact or write an opinion,

his conclusion that the confession is vol-

untary must appear from the record with

unmistakable clarity.

Id. at 544, 87 S.Ct. at 643.

Referring to the same topic, this Court

stated as follows:

The requirement of the Fourteenth

Amendment is that the trial judge make

& determination that a confession was

freely and voluntarily given hefore he

allows it to be considered by a jury. A

specific finding of voluntariness is neces-

sary to ensure that a judge has properly

met this requirement.

McDole v. State, 283 So.2d 5538, 554 (Fla.

1973) (citations omitted).

The judge in the case sub judice was

doing just that: making, with unmistakable

clarity, a finding for the record that appel-

lant’s confessions were voluntarily made.

His comments, therefore, were not improp-

er.

{2] Appellant’s other argument, that the

court failed to instruct the jury on the

weight to be given his confessions, is a valid

point. We do not agree, however, that the

error warrants a new trial. Appellant cor-

rectly states that the “law of the case”

upon which the judge must charge the jury

includes the weight to be given confessions.

See § 918.10(1), Fla.Stat. (1977); Fla.R.

Crim.P. 3.390(a); Harrison v. State, 149 Fla.

$65, 5 So.2d 708 (1942). Appellant then

cites several cases in which failure to so

instruct the jury was found to be grounds

for reversal and award of a new trial. The

cases cited are not, however, on “all-fours”

with the case at hand.

In Harrison v. State the defendant was

never placed on the stand and never testi-.

fied before the jury. It was acknowledged

that there could have been no conviction

without the confession, and defendant's

counsel objected to the admission into evi-

dence of the confession. In its decision, this

Court held that the trial court had erred by

not instructing the jury on the law of the

case because it had a duty to do so “under

the circumstances of this case.” Id. 5 So.2d

707 (emphasis added).

Brown v. State, 124 So.2d 481 (Fla.1960),

which was also cited by appellant and which

concerned the propriety of jury instructions

on degrees of homicide, simply cited Harri-

son as an example of how failure to advise

the jury on the weight to be given a confes-

sion could be fundamental error.

Bunn v. State,363 So.2d 16 (Fia.3d DCA

1978), cert. denied, 368° So.2d 1873 (Fla.

1979), addressed the propriety of a trial

court's refusal to give the jury instructions

regarding evaluation of certain admissions

which the defendant had made. The dis-

898 Fis.

trict court reversed the conviction, empha-

sizing that a request for instructions had

been made:

[TJhe failure of the trial court, pursuant

to appellant's request for such an instruc-

tion prior to the time the jury retired, to

give either the Florida Standard Jury

Instruction (criminal) 2.13%(i) or another

appropriate instruction constituted re-

versible error.

Id. at 17 (emphasis added).

The case sub judice is distinguishable

from those cited by appellant. The state

did not rely entirely on appellant’s confes-

sion to obtain a conviction. There was evi-

dence presented, other than appellant's con-

fession, upon which the conviction could be

based. On Monday morning Bonnie Ward,

Donna, and the two small children were in

the Ward vehicle with defendant. They

went to a hospital and visited another

daughter, Dana, at about 11:30 am. Bon-

nie Ward was wearing her watch.

In mid-afternoon defendant went to a

bank and attempted to cash a check. He

was alone in Bonnie’s automobile. When a

policeman approached, defendant fled in

the car. After a high speed chase, he elud-

ed the officer.

On Tuesday defendant was arrested

while hitchhiking. He had abandoned the

vehicle, but had a knife and Bonnie’s watch

in his possession.

On Wednesday the small child was able to

communicate with the officers so that they

were led to the scene of the crime. This

evidence was sufficient to show, beyond a

reasonable doubt, that defendant was with

the victims at the time of the murder.

This, considered with the theft of the

watch, possession of a knife suitable for use

in committing the homicides, and the flight

of the defendant, amounts to clear proof of

the guilt of defendant.

We have held that where there exists

other evidence, in addition to a confession,

sufficient to sustain a conviction, failure by

a court to, of its own motion, charge a jury

regarding the consideration to be given said

confession is not error requiring a new trial.

See Brunke v. State, 160 Fla. 43, 33 So.2d

226 (Fila.1948).

407 SOUTHERN REPORTER, 2d SERIES

Nor contrary to the cited cases, docs

there seem to be any reason to doubt the

validity and voluntariness of appellant's

confession. During the sentencing phase he

personally addressed the jury, admitted to

having committed the murders, and asked

for imposition of the death penalty.

[3] It also bears note that appellant did

not request that instructions be given the

jury and did not object when the court

failed to do so. In the cases cited, either

request for instructions was made or as

objection raised to the absence thereof.

We therefore do not find the trial court's

failure to instruct the jury regarding appel-

lant’s confessions to be “fundamental er.

ror,” cognizable for the first time on appeal

and requiring reversal of the trial court's

decision. Unlike the cited cases, whatever

error that may have occurred here was

harmless error, and the <ircumstances of

this case do not warrant a new trial as a

result thereof.

[4] Appellant next argues that because

a complete record of the proceeding below

is not available for review by this Court

(appellant’s counsel's closing argument at

the guilt phase of the trial was not record-

ed), the decision should be vacated and re-

manded. We decline to do so because it

was appellant’s counsel that instructed the

court reporter not to report his final argu-

ment. Clearly, had the appellant been de-

prived the opportunity of a complete review

through no fault of his own, there would be

precedent for vacating the trial court's deci-

sion. Deiap v. State, 350 So.2d 462 (Fla

1977). But the right to review by an appel-

late court of the whole record may be relin-

quished, hence, our observation in Delap

that “ijn the absence of a waiver, the de-

fendant has a right to complete review.”

Id. at 463, n. 1. (emphasis added). The

right to a complete review here was waived

when appellant’s counsel instructed the

court reporter not to record his closing &*

gument, and appellant is not entitled to &

new trial on the basis of the reporter's

compliance with those instructions.

SMITH v. STATE

Fla. 899

(Cite an, Fia., 407 $0.24 604

On the same point, appellant also argues

that Rule 2.070(b), Florida Rules of Judicial

Administration, mandates vacation of the

trial court’s decision. That rule provides:

(b) Record When trial proceedings are

being reported, no part of the proceed-

ings shall be omitted unless all of the

parties agree to do so and the court ap-

proves the agreement.

While there is no showing that the parties

agreed to omit recordation of appellant's

counsel’s closing argument, or that the

court approved of such, it was, nevertheless,

appellant's counsel that instructed the court

reporter not to record his closing argument,

and in the absence of fundamental error

appellant may not now raise the matter on

appeal.

(5] Contrary to appellant’s argument in

his third point on appeal, we have held that

section 921.141, Florida Statutes, does not

violate the requirements of article V, sec-

tion 2(a), Florida Constitution, by attempt-

ing to govern practice and procedure. See

Dobbert v. State, 375 So.2d 1069 (Fla.1979),

cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64

L.Ed.2d 862 (1980).

(6) We are not convinced, as appellant

next contends, that heretofore unconsidered

evidence of mental deficiencies on his part

compels a new trial “in the interest of jus-

tice.” Appellant was examined and tested

by two psychologists whose findings were

then considered by the judge and jury. Al-

though the psychologists recommended that

appellant undergo further tests, he specifi-

cally declined to do so, and, at the sentenc-

ing portion of his trial, tendered no evi-

dence regarding a possible mental deficien-

cy.

{7} Furthermore, despite appellant's

contention to the contrary, the psychologi-

cal findings which were considered are not

#0 internally inconsistent as to be almost

useless. The psychological report stated, in

part:

Even if an organic disorder were found to

be present, we feel that it would not

minimize the long standing maladaptive

features of his personality nor would it

render him legally insane. The critical

aspect is that Jimmy has a chronic history

of difficulty in being aware of [,] accept-

ing [,] and dealing with his feelings of

anger. In fact, the personality evolution

points to a profound deficiency in charac-

ter development and the associated prob-

lems in impulse control. Should, how-

ever, an organic disorder be detected, we

would be willing to render an opinion

regarding possible mitigating circum-

stances.

The doctors’ report is unequivocal; appel-

lant was not legally insane.

The supplemental! report which appellant

now seeks to have considered was never

before the trial court because at that stage

of the proceedings appellant refused to un-

dergo further testing. Now he seeks to

undo his prior action. Appellant charted

his own course, willingly and knowingly,

and the psychological report weighed by the

judge and jury was definite, proper and

consistent. There was no error.

{8} Appellant’s next point on appeal is

that the exclusion of three jurors who ex-

pressed opposition to the death penalty vio-

lated his Sixth Amendment right to a jury

chosen from a random cross-section of the

community. More specifically, appellant

contends that the excusal cf the three did

not comport with the United States Su-

preme Court’s ruling in Witherspoon v. Iili-

nois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d

776 (1968). In light of the testimony by

each of the jurors in question that under no

circumstances would he vote to put a person

to death, we are of the opinion that the

Witherspoon holding was complied with,

and that they were properly excused for

cause. See Fleming v. State, 374 So.2d 954

(Fia.1979); Foster v. State, 369 So.2d 928

(Fla.), cert. denied, 444 U.S. 885, 100 S.Ct.

178, 62 L.Ed.2d 116 (1979); and Jackson v.

State, 366 So.2d 752 (Fla.1978), cert. denied,

444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115

(1979). '

[9,10] Appellant's sixth point on appeal,

that the trial court erred by allowing him to

waive representation by counsel at the sen-

tencing phase of his trial, is also without

900 Fla

merit. At the outset, we note that self-rep-

resentation by a defendant in a criminal

proceeding is not per se improper. “{I)n the

absence of unusual circumstances an ac-

cused who is inentally competent and sui

juris has ‘he right to conduct his own de-

fense without counsel by virtue of Section

i] Veclaration of Rights, Florida Constitu-

tion.” State v. Capetta, 216 So.2d 749, 750

(Fla.1968), cert. denied, 394 U.S. 1008, 89

S.Ct. 1610, 22 LEd2d 787 (1969). The

waiver of one's right to counsel must, how-

ever, be an intelligent and knowing relin-

quishment of such representation. This

Court, when faced with a question regard-

ing the propriety of such a waiver in Goode

v. State, 365 So.2d 381 (Fla.1978), cert. de-

nied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d

1074 (1979), cited the decision of the United

States Supreme Court in Faretta v. Califor-

nia, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d

562 (1975), which noted:

Although a defendant need not himself

have the skill and experience of a lawyer

in order competently and intelligently to

chooee self-representation, he should be

made aware of the dangers and disadvan-

tages of self-representation, so that rec-

ord will establish that “he knows what he

is doing and his choice is made with eyes

open.”

Here, weeks before trial, Faretta clear-

ly and unequivocally declared to the trial

judge that he wanted to represent him-

self and did not want counsel. The rec-

ord affirmatively shows that Faretta was

literate, competent, and understanding,

and tha‘ he was voluntarily exercising his

informed free will. The trial judge had

warned Faretta that he thought it was a

mistake not to accept the assistance of

counsel, and that Faretta would be re-

quired to follow all the “ground rules” of

trial procedure. We need make no as-

sessment of how well or poorly Faretta

had mastered the intricacies of the hear-

say rule and the California code provi-

sions that govern challenges of potential

jurors on voir dire. For his technical

legal knowledge, as such, was not rele-

vant to an assessment of his knowing

exercise of the right to defend himself.

407 SOUTHERN REPORTER, 24 SERIES

Id. at 835-96, 95 S.Ct. at 2541. (Citation

and footnotes omitted.)

{11} Applying the Faretta criteria in the

case sub judice, we do not find appellant's

waiver of counsel to ‘rave been improperly

permitted. The record makes it quite clear

that appellant wanted to make the closing

argument at the sentencing phase of his

trial himself rather than have his

do so. It also makes it clear that he was

literate, competent, and understanding. He

was apprised of the danger of what he was

doing, of the seriousness thereof, and that s

very real result might be imposition of the

death penalty. He was warned that the

prosecutor would not “back up,” regardless

of who made the closing argument for the

defense, and would vigorously seek the

death penalty. He was strongly urged to

allow his attorney to make the closing argu-

ment, but insisted on doing so himself.

We need not inquire whether appellant

knew all of the specifics regarding aggra-

vating and mitigating circumstances and

the like. Paraphrasing the opinion in Fan

etta, we need make no assessment of how

well or poorly appellant mastered the intri-

cacies of the sentencing process, for his

technical legal knowledge, as such, was not

relevant to an assessment of his knowing

exercise of the right to defend himself.

The trial judge questioned appellant closely

concerning his desire to make the closing

argument himself. Appellant was warned

of the dangers of what he was doicg and

discouraged from doing so. lie was not

lightly allowed to follow the course which

he chose. The court fulfilled its obligation,

as enunciated in Faretta, and no reversible

error occurred.

[12] In the seventh point on appeal, ap-

pellant contends that the trial court erred

in sentencing by considering his uncorrobo

rated confessions to various crimes when

there was “no showing of a corpus delicti

for any prior offenses.” Appellant argues

that the trial judge's finding of a signifi

cant history of prior criminal activity, when

there was no evidence of such other than

statements made by appellant, violated the

SMITH v. STATE

Fis. 901

Cite as, Fin, 407 S024 894

corpus delicti principle. However, that

principle, which requires some independent

proof of a crime other than a confession

before one may be convicted, does not man-

date the reversal suggested, for the follow-

ing reasons.

Section 921.141, Florida Statutes (1979),

lists the aggravating and mitigating cir-

cumstances to be considered in determining

an appropriate sentence in a capital case.

Section 921.141(6)a) provides that lack of a

significant history of prior criminal activity

is to be considered a mitigating factor.

Noting that aggravating circumstances

must be proven beyond a reasonable doubt,

State v. Dixon, 283 So.2d 1 (Fla.1973), cert.

denied, 416 U.S. 943, 94 S.Ct. 1950, 40

L.Ed.2d 295 (1974), and the particular need

for accuracy when a life is at stake, appel-

lant argues that there must be competent,

independent proof of significant prior crimi-

nal activity in order to negate the mitigat-

ing circumstance established by section

921.141(6Xa). We have, however, specifical-

ly held otherwise.

In Washington v. State, 362 So.2d 658

(Pla.1978), cert. denied, 441 U.S. 937, 99

S.Ct. 2063, 60 L.Ed.2d 666 (1979), a death

sentence was appealed from in part on the

basis of an allegedly improper refusal by

the court to consider lack of a significant

history of prior criminal activity as a miti-

gating circumstance. The trial court had

refused to recognize the alleged mitigating

circumstance because the appellant had

carried on a course of burglaries, had stolen

Property for a significant period of time,

and had confessed and testified to such in

open court. The appellant asserted that the

trial court had acted improperly, that on

the basis of our decision in Provence v.

State, 337 So.2d 783 (Fia.1976), cert. denied,

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

(1977), previous convictions are required to

Regate section 921 141(6Xa). We upheld the

trial court, however, observing:

[Appellant] misconstrues the holding of

Provence. That case construed Section

921.141(5\(b) which requires previous con-

viction of another capital felony involving

the use or threat of violence.... Sec-

tion 921.141(6Xa) makes no reference to

conviction and, hence, Provence has no

application to the instant case.

Washington, at 666-67.

Thus in the case sub judice, as in Wash-

ington, the trial court, on the basis of con-

fessions made by the appellant, properly

found that the appellant had a significant

history of prior criminal activity which ne-

gated the otherwise applicable mitigating

circumstance of section 921.141(6Xa).

{13} Nor, proceeding to appellant's

eighth point on appeal, did the trial court

err in sentencing by refusing to find as

mitigating circumstances that the appellant

was under the influence of extreme mental

or emotional disturbance and/or that his

capacity to appreciate the criminality of his

conduct or to conform his conduct to the

requirements of law was substantially im-

paired. See sections 921.141(6Xb) and (f).

Although consideration of all mitigating

circumstances is required by the United

States Constitution, Lockett v. Ohio, 438

U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973

(1978), the decision of whether a particular

mitigating circumstance in sentencing is

proven and the weight to be given it rest

with the judge and jury. Lucas v. State,

376 So.2d 1149 (Fla.1979).

[14] The appellant cites several cases in

which the mitigating circumstances of sec-

tions 921.141(6Xb) and/or (f) were applied

as a result of evidence pertaining to the

defendant's state of mind. In two of these

cases, Burch v. State, 343 So.2d 831 (Fla.

1977), and Shue v. State, 366 So.2d 387

(Fla.1978), we reversed death sentences be-

cause the trial judges had ignored the ju-

ries’ recommendations of a life sentence.

Although both cases demonstrate that evi-

dence regarding a defendant's mental state

may be taken in mitigation, their greater

emphasis seems to be on the deference

which is to be accorded a jury's sentencing

recommendation. The jury here recom-

mended imposition of the death penalty.

Also cited is our decision in Huckaby v.

State, 343 So.2d 29 (Fla.), cert. denied, 434

U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977),

902 Fis. 407 SOUTHERN REPORTER, 24 SERIES

in which we vacated a death sentence for

failure by the trial court to recognize the

existence of certain mitigating circumstanc-

es. Explaining why the lower court ought

to have recognized the mitigating circum-

stances, we noted:

The trial judge ignored every aspect of

the medical testimony in this case when

he found that no mitigating circumstanc-

es existed. There was almost total agree-

ment on Huckaby’s mental illness and its

controlling influence on him. Although

the defense was unable to prove legal

insanity, it amply showed that Huckaby’s

mental illness was a motivating factor in

the commission of the crimes for which

he was convicted. Our review of the

record shows that the capital felony in-

volved in this case was committed while

Huckaby was under the influence of ex-

treme mental or emotional disturbance,

anu that while he may have comprehend-

ed the difference between right and

wrong his capacity to appreciate the

criminality of his conduct and to conform

it to the law was substantially impaired.

These findings constitute two mitigating

circumstances which should have been

weighed in determining his sentence.

Id. at 38-34.

While the situation in Huckaby warrant-

ed an invasion of the trial court’s domain,

such is not the case here. The trial court

here did not ignore every aspect of the

medical testimony regarding the appellant;

rather, it found that the medical testimony

simply did not compel application of a miti-

gating factor in sentencing. Unlike the

court in Huckaby, the trial court did not

improperly refuse to recognize certain miti-

gating circumstances; rather, it considered

the evidence presented regarding the de-

fendant’s mental state and then made its

decision, which we are not to disturb unless

absolutely required to do so.

Relevant to this situation is our decision

in Lucas v. State, wherein we refused to

interfere with the trial court's decision re-

garding mitigating circumstances, noting:

Appellant next argues that the evi-

dence supports the existence of at least

two mitigating circumstances which the

trial court failed to take into considers.

tion. During the sentencing hearing, de.

fense counsel produced a psychiatrist who

testified that appellant knew right from

wrong, but suffered from @ sociopathic

personality resulting in defective judg.

ment. Other witnesses testified to appel.

lant’s abnormal appearance and behavior

on the evening of the shooting. Appel-

lant contends that this testimony proves

that he was under extreme mental or

emotional disturbance at the time of the

commission of the offense (section 921.-

141(6Xb)) and could not appreciate the

criminality of his conduct. (Section 921.-

141(6Xf)). In response, the state argues

that it lies within the province of the

trier of fact to weigh the evidence

presented. We agree. The jury and the

judge heard the testimony, and apparent-

ly concluded that the testimony should be

given little or no weight in their deci-

sions. We find nothing in the record

which compels a different result.

376 So.2d at 1153-54.

In Hargrave v. State, 366 So.2d 1 (Fla

1978), cert. denied, 444 U.S. 919, 100 S.Ct.

239, 62 L.Ed.2d 176 (1979), we considered s