# Petition — SMITH v. FLORIDA (No. 83-6549) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1796%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text JIMMY LEE SMITH, Petitioner, : v. 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 D1 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 : g i g i z e 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. tw 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). © Criminal Law o=1189 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. Be 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 re 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- B3 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. Bh 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). BS 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