Petition — SIMS v. FLORIDA (No. 83-6736)

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83-6736

IN THE

SUPREME COURT OF THE UNITED STATES

Supreme Court, U.S.

OCTOBER TERM 1983 FILED

APR 6g 1984

< es _ spaudannsenndguensnenaeucscdgsegecssasessenenaeena e

Alexander L. Stevas, Clerk

: ? TERRY MELVIN SIMS

iGiNAL Petitioner,

vs.

STATE OF FLORIDA

Respondent.

*

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PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida

224 Datura Street/13th Floor

West Palm Beach, Florida 33401

(305) 837-2150

CRAIG S. BARNARD

Chief Assistant Public Defender

MICHAEL A. MELLO

Assistant Public Defender

Counsel for Petitioner

QUESTION PRESENTED

WHETHER THE TRIAL JUDGE IN THIS CAPITAL CASE COMMITTED ERROR

OF CONSTITUTIONAL MAGNITUDE IN RESTRICTING AND ULTIMATELY CUTTING

OFF ALTOGETHER DEFENSE COUNSEL'S CROSS-EXAMINATION OF THE KEY

PROSECUTION WITNESS.

TABLE OF CONTENTS

QUESTION PRESENTED eeeeveeeeveeevn eee eeeeeeeeeeeeeeeeeneneeeee

CITATION TO OPINIONS BELOW eoeeevreeeeeeeeeeeeeeeeeeeeeee

i

1

JURISDICTION ..cccccccccccccccccscccccccccesesccscsces Lb

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....

HOW THE FEDERAL QUESTION WAS RAISED AND DECIDED

BELOW eeeeteeveeeee eee eeeeeeeeeeriaeneeeeeeeeeeeeneaeeeeee

STATEMENT OF THE CASE eeeneeeveeeeeeeeeeeeeeeeeeeeeeeeee

A.

Cc.

The State's Case eeeeeeeeeeveeeeeeeeeeeeeeeee

The Defense Case eoenensrvrieeeeeeeeeeeeeeeeeneeeee

The State's Rebuttal eeenereeeeneeeeeeeneeneeeeee

REASONS FOR GRANTING THE WRIT

I.

The Trial Judge in this Capital Case

Restricted and Ultimately Cut Off

Petitioner's Cross-Examination of the Key

Prosecution Witness, in Violation of Sixth

and Fourteenth Amendment Guarantees of

Confrontation of Witnesses and of a Fair

Trial eeeeeveveeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

Ae The Issues Presentecé eeeeoeeeeseeeeeeeeeeee

B. The Vehicle eoeeeeeeeeeeeeeeevreeeeeeeenee ee

ocUClC cCOrOlmlCUMWLNDLUC LCL

1. Restrictions on What Cross-Examination

Permitted by the Trial Judge ........

2. Termination of Cross-examination

Altogether eeeeseeeeeeeeeeeeeeeeneeeeeee

e. Conclusion eeveeeoe eevee eevee eeeeeeeeeeee eee

16

18

AUTHORITIES CITED

CASES CITED

Alford v. United States, 282 U.S. 687

(1931)

Berger v. California, 393 U.S. 314

(1969)

Brookhart v. Janis, 384 U.S. 1 (1966)

Chambers v. Mississippi, 410 U.S. 284

(1973)

Coco v. State, 62 So.2d 892

(Pla. 1953)

Cowherd v. State, 365 So.2d 191

(Fla. 3d Dist. Ct. App. 1979)

Davis v. Alaska, 415 U.S. 308

(1974)

Esposito v. State, 343 So.2d 451

(Pla. 2d Dist. Ct. App. 1971)

Frost v. State, 104 So.2d 77

(Fla. 2d Dist. Ct. App. 1958)

Greene v. Wainwright, 634 F.2d 272

(5th Cir. 1981)

Hahn v. State, 58 So.2d 188

(Pla. 1952)

Holt v. State, 378 So.2d 106

(Fla. 5th Dist. Ct. App. 1980)

Leavine v. State, 109 Fla. 447, 147

So.2d 897 (1933)

Ohio v. Roberts, 448 U.S. 56 (1980)

Pointer v. Texas, 380 U.S. 400 (1955)

Raulerson v. State, 102 So.2d 281

(Fla. 1958)

Seward v. State, 59 So.2d 529

(Fla. 1952)

Sims v. State, 444 So.2d 922

(Fla. 1983)

Skelton v. Beall, 133 So.2d 477

(Fla. 3d Dist. Ct. App 1961)

Smith v. Illinois, 390 U.S. 129 (1968)

United States v. Bass, 490 F.2d 846

(5th Cir. 1974)

United States v. Caudle, 606 F.2d 451

(4th Cir. 1979)

United States v. Lindstrom, 698 U.S. 1154

(llth Cir. 1983)

United States v. Mayer, 556 F.2d 245

(5th Cir. 1977)

Williams v. State, 386 So.2d 25

-ii-

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10

12

15

9,10,11,12

16

1l

10,12

16

16

1,2,3,12

16

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Williams v. State, 386 $0.2d 25

(Pla. 2d Dist. Ct. App 1980)

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oe i a te. el

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

TERRY MELVIN SIMS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

sees esse sees esses SS SSS SS SSS SS SS SS SS SSS SSS SS SS SS SS SS SS SS SS SSS SS Ss

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Petitioner prays that a writ of certiorari issue to review

the judgment of the Supreme Court of Florida filed on November 3,

1983.

CITATION TO OPINIONS BELOW

The judgment upon which petitioner seeks plenary review is

the decision of the Supreme Court of Florida upholding his

conviction and death sentence. The opinion of the Florida

Supreme Court was issued on November 3, 1983 and was modified on

denial of rehearing on January 19, 1984. The revised opinion of

the Supreme Court of Florida is reported as Sims v. State, 444

So.2d 922 (Fla. 1983) and is set out as Appendix B to this

petition. The order denying rehearing is attached as Appendix C.

JURISDICTION

The judgment of the Supreme Court of Florida was filed on

November 3, 1983, and rehearing wed denied on January 19, 1984.

See Appendix D. Jurisdiction of this Court is invoked pursuant

to 28 U.S.C. §$1257(3), petitioner having asserted below and

asserting herein deprivation of rights secured by the Consti-

tution of the United States. The Honorable Lewis F. Powell, Jr.,

Associate Justice of the Supreme Court of the United Sgates,

issued an order extending the time within which to file this

petition to and including April 18, 1984.

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CONSTITUTIONAL AND STATOTORY PROVISIONS INVOLVED =

This case involves the Sixth, Eighth, and Fourteenth

Amendments to the Constitution of the United States. It further

involves Section 921.141, Plorida Statute (1977), entitled

"Sentence of death or life imprisonment ~™ gapital felonies;

further proceedings to determine sentence." Because of its

length, the statute is set out in its entirety in Appendix A.

HOW THE FEDERAL QUESTION WAS RAISED AND DECIDED BELOW

Defense counsel timely objected when the trial court

summarily cut off cross-examination of the state's key witness (R

468); counsel had twice been rebuked in his requests for bench

conferences during the cross-examination (R 460-61, 462). The

question was then raised in Point I of petitioner's brief on

direct appeal to the Supreme Court of Florida, where he alleged

that "the trial court erred in summarily curtailing séinsiean*s

cross-examination of the key prosecution witness." The Florida

Supreme Court, in its initial opinion dated November 3, 1983,

concluded that trial counsel's objection was insufficient to

preserve the issue for appellate review. See Appendix D. ir.

Sims challenged this finding in his timely filed petition for

rehearing. Id. The Florida Supreme Court agreed and modified

its opinion accordingly. Id. That court's final opinion clearly

resolved the issue on the merits:

Appellant's first point on appeal is that he

was denied his sixth amendment right to

cross-examine a witness when the trial court

curtailed defense counsel's cross-examination

of Baldree. He relies on Coxwell v. State, 361

So.2d 148 (Fla. 1978). The asserted error

occurred when defense counsel began questioning

Baldree about the individual whom appellant was

said to resemble. We do not find that the

court's ruling was a curtailment of cross-

examination requiring reversal under Coxwell v.

State. Here the defense was allowed extensive .

cross-examination of the witness and the

state's objection and the court's ruling

thereon came only after the defense went into

matters beyond the scope of Baldree's direct

testimony. The defense did not ask for an

opportunity to make a proffer to show the

relevance of the information it was seeking to

bring out. We find no error in the judge's

ruling.

Sims v. State, 444 So.2d 922, 924 (Fla. 1983). 4

Terry Melvin Sims was convicted and sentenced to death for

the murder of George Pfiel, an off-duty deputy sheriff who

entered a pharmacy while it was being robbed by four men. The

conviction and sentence were affirmed by the Plorida Supreme

Court. Sims v. State, 444 So.2d 922 (Fla. 1983). This petition

followed.

Because resolution of the question presented requires

understanding of the significance of the testimony of Curtis

Baldree, in the context of all the evidence presented at trial,

that evidence must be discussed in some detail.

A. The State's Case.

Two of the participants in the robbery, Curtis Baldree and

B. B. Halsell, were “the state's chief witnesses.” Sims v,

State, 444 So.2d 922, 923 (Fla. 1983). Both received deals for

their testimony. Although originally charged with murder and

robbery, Baldree entered into a deal with the state in which he

pleaded guilty to two misdemeanors and was sentenced to two years

in the county jail (R 445-446).1 Halsell's deal was that he

pleaded guilty to one count of robbery with a ten year cap on his

sentence (R 299-300). Baldree and Halsell shared a jail cell

while waiting to testify in this case (R 344).

Halsell testified that he met in Jacksonville with Baldree,

Sims and one Eugene Robinson (R 302). Driving two cars, a

Cadillac and a stolen Matador (R 303), they began driving to

Tampa for the purpose of buying ignition pullers (R 304).

However, they stopped in Orlando overnight (R 303), and while

there they stole a Camaro (R 305-306). Halsell checked into a

Quality Inn motel across the road from the pharmacy that even-

tually was robbed (R 308). After staying at the motel for

several hours (R 308), Halsell said, he took Baldree and Sims to

pick up the Camaro; Robinson drove the Cadillac (R 310). He said

that Robinson had given them all guns (R 313-314) and that the

robbery was Robinson's idea (R 332).

«

1 The symbols "T" and "RK" respectively will be used herein to refer

to the transcript of trial proceedings and the record-on-appeal

in the Florida Supreme Court below.

F322

ee . a

Halsell parked the Matador behind the shopping center as a

"switch" car (R 311). He said he saw Baldree and Sims enter the

- pharmacy (R 313). About five minutes later he saw a man walking

up to the door of the pharmacy (R 314), saw him peek in the door

and then a “bunch of guns went off" (R 315). The man had fired

first and then someone inside returned fire (R 315, 351). Halsell

said that after the man fell, he saw Sims come out the pharmacy

door in a crouch; then Sims went back inside (R 315). Halsell and

Robinson then left picked up the Matador and went back to the

motel (R 316). ‘According to Halsell, Sims arrived immediately at

the motel room and was bleeding (R 317) and said that he “shot a

cop or a truck driver" (R 353). The three then left the motel

and went to a store to listen to a police scanner (R 317), and

then Halsell went back to the motel to check on Baldree (R 318).

He found Baldree in the motel, they went back to get the others

and then checked into another motel (R 319). After about an hour

they departed for Jacksonville where Halsell said they left

Sims at Baldree's house and Halsell went to Robinson's house (R

320-321).

Halsell siuchane testified that he had bcen a drug addict

since age 18 (R 301, 325), that he injected morphine on the days

prior to and day of the offense (R 326), that he and was a “pro-

fessional criminal" since he left high school (R 300), that he

had five aliases (R 342), that he had committed more than 100

burglaries (R 300) and a few robberies (R 323) mostly for drugs

(R 301) and that he had been convicted “several times" (R 354).

Halsell told Sims' prior attorney that he would do “whatever he

felt was necessary ... to make sure that his sentence was ...

what he wanted it to be." (R 659).

Baldree, the other alleged accomplice, also testified.

Baldree said that he went into the pharmacy first with Sims

behind him (R 432). Baldree went to the back of the store to the

pharmacy counter and got the pharmacist (R 433). Baldree said

Sims ordered the customers and employees to come to the back of

the store and go into the bathroom (R 433-434). Baldree t8ld the

pharmacist to give him certain drugs (R 434); Baldree thought he

was stalling and cocked his pistol in the pharmacist's face (R

i A EE A A —

435). He said that Sims came to the back of the store to ask how

things were going and then went back to the front (R 435).

- Baldree said that shooting started at the front (R 435). The

pharmacist grabbed Baldree's gun and they wrestled for it;

Baldree pulled away and fired his gun (R 436). Baldree said that

he then went to the front of the store and the pharmacist went

into the bathroom (R 436). According to Baldree, Sims said "I've

just killed a cop" and “when he came in the door I thought he was

a truck driver" (R437). Baldree testified that Sims said that

they had fired simultaneously (R 437). He said Sims was shot in

the hip (R 438) and then began crawling towards the front door (R

438). Baldree went out the back door and commandeered a car (R

438). He left the car, ran through the woods toward the Quality

Inn, threw his gun in a lake, and went back to the motel where he

waited for Halsell (R 438-439). They went to another motel and

then to Jacksonville (R 442). Baldree said he took Sims to

Baldree's apartment where his girlfriend, Joyce Gray, was also

living (R 443). On Sunday morning Robinson came over, according

to Baldree, and they took Sims to Sims’ trailer in Lake City (R

443). Baldree said that on January 3, 1978 he and Robinson

picked up Sims and took him to a Dr. Dunbar in St. Mary's,

Georgia (R 444-445). They then returned Sims to Lake City (R

445).

Baldree testified that he had spent twenty-four years in

state and federal prisons for crimes including armed robbery,

sale of narcotics, attempted murder and escape (R 426-427). He

denied being a drug addict (R 446) although he admitted using

drugs on the day of the offense (R 451, 452, 459) and other

witnesses, including Halsell, described him as a junkie or addict

(R 327, 328, 547, 559, 586). He made his living selling drugs (R

448). He had been convicted of crimes "approximately twelve”

times (R 466). He agreed to testify in return for pleas of

guilty to two misdemeanors (R 445) and told Sims' prior attorney

that "he would do just about anything to keep that deal...." (R

659). 4

The account of the robbery and the shooting was confirmed by

Pharmacist Robert Duncan, Duncan's wife and daughter, both of

whom worked in the store, and two customers. Mr. Duncan's wife,

Caroline Duncan, was working in one of the aisles when her

daughter motioned to her to look at a man who was holding a gun

(R 388-391). They then went to the back of the store (R 391).

She said Sims resembled the man she saw (R 392). Colleen Duncan,

their 16-year old daughter, was working at the cash register in

front of the pharmacy, and a man, who had been in the store five

minutes (R 405), approached her with a gun and told her to go to

the back of the store (R 403-405). She said Sims was the man (R

405), although she had failed to pick out his photograph in a

prior lineup (R 411-414) and had since seen a picture of Sims in

the newspapers (R 414, 419). William Guggenheim was a customer

in the store waiting at the pharmacy counter (R 478-479). He saw

a man with a gun next to the pharmacist, Mr. Duncan (R 480-481).

The man ordered Guggenheim around the counter, but instead

Guggenheim ran to the front of the store (R 481-482). He said a

man with a gun confronted him and asked for his wallet (R

482-483). Guggenheim then saw a man in a gray suit enter the

store and then back out (R 485-486). Guggenheim said Sims was the

man with the gun (R 487), although he also had been unable to

identify Sims' photograph (R 495-496) and had seen newspaper and

television reports (R 499-500). Sue Kovec said she saw Sims in

the front of the store (R 503, 505) but she did not see a gun in

his hand (R 506). She said she went to the back of the store and

stayed by the pharmacy counter (R 503-504).

B. The Defense Case

Bonnie McCumbers testified for the defense that she lived in

a trailer in Lake City during the time of this offense (R 596).

She lived with Sims (R 596) and testified that Sirs was home

every night between Christmas and New Year (R 598). Ms. Mc-

Cumbers went to St. Augustine on January 3rd to pick up her

social security check (R 599). On the same day she picked up

Robert and June Hart and brought them to her trailer in La&e City

(R 599). Ms. McCumbers testified that Sims showed no sign of a

gunshot wound (R 599). June Hart testified that on January 3rd

- 6 7 . : ae;

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she went to Sims and Ms. McCumbers' trailer in Lake City and

stayed along with her husband for several weeks (R 612), because

her husband was out of work (R 616). She saw Sims that night and

he was walking normally and was not in pain (R 612-613). Also,

after Christmas and before New Year's, she telephoned the trailer

and Sims answered (R 614). Robert Hart also saw Sims and he was

walking normally, with no evidence of a gunshot wound (R 623).

Joyce Gray, Baldree's common law wife (R 557-558), was

living with Baldree at the time (R 558). On January 3, 1978,

Baldree was with her in Atlants for Ms. Gray's doctor's appoint-

ment (R 560) and was in her presence the entire time (R 565).

Sims tried to admit into evidence a gasoline credit card receipt

signed by Baldree in Atlanta on that date and the doctor's bill

(R 560), but the court would not admit them into evidence (R

564). She also testified that Baldree used drugs daily (R 559).

Ms. Gray said that she saw no one staying at their apartment

between Christmas and New Year's (R 570).

Ann Robinson, the wife of Gene Robinson, testified that

Halsell and Baldree were heavy drug addicts and that Baldree

hajJlucinated constantly (R 545, 547). Baldree was a robber and

Halsell was a burglar and a robber (R 548). The two worked as a

team (R 548). Sims was not associated with Baldree and Halsell

(R 550). Baldree's reputation was dangerous, treacherous and

untrustworthy (R 550).

Gale Milliken lived with Halsell for four years (R 585). He

and Baldree were thieves and drug addicts (R 585-586) and Baldree

hallucinated on drugs (R 587). Halsell and Baldree worked

together (R 588). Both Baldree and Halsell had previously

falsely accused people of crimes (R 535, 587-588).

Officer Richard Schaffer also testified, for the defense. He

was the first officer on the scene, and he left his car and went

toward the pharmacy (R 523-524). The officer saw the door

partially open and a man crouched down inside behind the door (R

525). He saw the man run back through the pharmacy (R 517).

After the officer got up to the pharmacy he heard a shot ffred (R

527). The officer crouched in front of the pharmacy and within a

few minutes a plain clothes deputy sheriff came (R 528-529). The

officer had the deputy take charge (R 529). The officer then

went behind the building and tried to overcome an Oldsmobile that

had been commandeered (R 529, 530, 532).

Carol Weatherby, a pharmacy technician at the store (R 538),

was behind the pharmacy counter with Mr. Duncan at the time she

first saw Baldree (R 538-539). She said that when the first shot

was fired Guggenheim was in the back of the store (R 541) and

that she, Guggenhiem and Kovec did not run down the aisle until

two other simultaneous shots were fired (R 541).

Ralph Salerno, the chief investigator, testified regarding

photographic lineups that he had held (R 645). In the photo-

graphic lineup, there were in excess of forty pictures including

three photographs of Sims (R 645-646). Sue Kovec picked out Sims

(R 646-647), Colleen Duncan, and Mr. Guggenheim did not pick out

any photographs (R 647-648). Baldree was shown a photograph of

Sims and said he did not know him (R 648-649).

‘ Sims also presented testimony about Terry Wayne Gale. Gale

was a criminal associate of Baldree and Halsell in robberies and

burglaries (R 549). They were a team (R 566). Sims was not

associated with them (R 550). Gale closely resembled Sims in

appearance (R 549).

C. The State's Rebuttal

In rebuttal, the State called William George Dunbar, a

former doctor who was then in federal prison on tax and narcotics

charges (R 665-666). He said that on January 3rd, Gene Robinson

brought an injured man to him in St. Mary's, Georgia (R 668). He

said the man had an injury on his left hip (R 668). The wound

looked old (R 669) and not like a gunshot wound (R 673). The man

with the injury had a salt and pepper beard and hair (R 670-671).

REASONS FOR GRANTING THE WRIT

THE TRIAL JUDGE IN THIS CAPITAL CASE RESTRICTED

AND ULTIMATELY CUT OFF PETITIONER'S CROSS-

EXAMINATION OF THE KEY PROSECUTION WITNESS, IN

VIOLATION OF SIXTH AND FOURTEENTH AMENDMENT

GUARANTEES OF CONFRONTATION OF WITNESSES AND OP

A PAIR TRIAL.

The trial court interjected, and ultimately aWruptly

terminated entirely, Mr. Sims' cross-examination of the key

prosecution witness, alleged accomplice, Curtis Baldree. The

judge's reason for his sua sponte action was not that the

questions being asked were improper or that they covered col-

- lateral areas.2 Rather, the court apparently reasoned that

since the witness had testified to these areas on direct exam-

ination and since other witnesses had also testified about those

areas, Mr. Sims' cross-examination into the matters was repe-

titive.32 This case thus involves both the restriction of

cross-examination into certain areas and the outright termination

of cross-examination into any areas.

Mr. Sims will, first, identify the important constitutional

issues presented and, second, s w why his case is the proper

vehicle for resolving those issues.

A. THE ISSUES PRESENTED

"There are few subjects, perhaps, upon which this Court and

other courts have been more nearly unanimous than in their

expressions of belief that the right of confrontation and

cross-examination is an essential and fundamental requirement for

the kind of fair trial which is this country's constitutional

goal." Pointer v. Texas, 380 U.S. 400, 405 (1965). The Sixth

Amendment, made applicable to the states through the Fourteenth

Amendment, id. at 403-05, mandates that a criminal defendant has

the right “to be confronted with the witnesses against him." The

Court's "cases construing the [confrontation] clause hold that a

primary interest served by it is the right of cross-examination."

Davis v. Alaska, 415 U.S. 308, 316 (1974) (quoting Douglas v.

Alabama, 380 U.S. 415, 418 (1968)); see also Ohio v. Roberts, 448

U.S. 56, 63 (1980). The right of cross-examination is an

essential safeguard of fact-finding accuracy in an adversary

system of justice and “the principal means by which the believ-

2 fhe prosecution did not object to the questioning.

3 Curiously, the Florida Supreme Court's opinion did not mention

the repetitiveness rationale given by the trial. Rather, the

State Supreme Court found that the matters excluded on cross were

beyond the scope of direct. 444 So.2d at 924. There are two

answers to this. First, the trial court excluded the testimony

as cumulative, not as beyond the scope of direct. In@eed, the

trial judge excluded the interrogation because he deemed it

repetitious of matters covered on direct. Second, the questions

were squarely within the scope of direct. Mr. Sims develops this

point in his discussion of the specific limitations in this case.

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Davis, 415 U.S. at 316. These "means of testing accuracy are so

‘ important that the absence of proper confrontation at trial calls

into question the ultimate integrity of the fact-finding pro-

cess." Roberts, 448 U.S. at 65 (quoting Chambers v. Mississippi,

410 U.S. 284, 295 (1973) and Berger v. California, 393 U.S. 314,

315 (1969)).

One goal of effective cross-examination is to impeach the

credibility of opposing witnesses. The Court in Davis observed

that

the cross-examiner is not only permitted to

delve into the witness’ story to test the

witness’ perceptions and memory, but the

cross-examiner has traditionally been allowed

to impeach, i.e., discredit, the witness. One

way Of discrediting the witness is to introduce

evidence of a prior criminal conviction of that

witness. By so doing the cross-examiner intends

to afford the jury a basis to infer that the

witness' character is such that he would be

less likely than the average trustworthy

citizen to be truthful in his testimony. The

introduction of evidence of a prior crime is

thus a general attack on the credibility of the

witness. A more particular attack on the

witness’ credibility is effected by means of

cross-examination directed toward revealing

possible biases, prejudices, or ulterior

motives of the witness as they may relate

directly to issues or personalities in the case

at hand. The partiality of a witness is

subject to exploration at trial, and is "always

relevant as discrediting the witness and

affecting the weight of his testimony." We

have recognized that the exposure of a witness'

motivation in testifying is a proper and

important function of the constitutionally

protected right of cross-examination.

415 U.S. at 317 (citations omitted).

The Court in Davis, while stressing the importance of the

right of cross-examination, recognized that a trial judge has

discretion# to preclude interrogation that is "repetitive."

415 U.S. at 317. The trial judge in this case justified cur-

tailment of cross-examination by finding the questioning cumula-

tive of information adduced on direct examination and revealed

4 It is of course true that the scope of cross-examination is a

matter within the discretion of the trial court. But this

discretionary authority comes into play only after there has been

permitted as a matter of right sufficient cross-examigation to

satisfy the Sixth Amendment. See United States v. Lindstrom, 698

U.S. 1154, 1160 (llth Cir. 1983); Greene v. Wainwright, 634 F.2d

272, 275 (Sth Cir. 1981); United States v. Bass, 490 F.2d 846,

858 n. 12 (5th Cir. 1974). .

- 10 -

a

through other witnesses. This case thus squarely presents the

question of the proper scope of the cumulativeness exception to

° the general rule permitting a full-ranging cross-examination.

Specifically, this case asks (1) whether questioning on cross-

examination is improperly cumulative if it covers the same ground

covered on direct examination of the witness being inter-

rogated;> (2) whether cross-examination is improperly cumu-

lative if it covers the same ground covered by other

witnesses;® (3) whether there is a constitutionally significant

difference between a court's limitation of cross-examination into

certain discrete subject areas and the court's termination of

cross-examination altogether into any subject area;’(4) whether

a criminal defendant, having shown improper curtailment of

cross-examination, must make an additional apewans of prejudice

in order to make out a violation of the Constitution;8 (5)

5 See United States v. Caudle, 606 P.2d 451, 456 (4th Cir. 1979).

6 See Frost v. State, 104 So.2d 77, 80 (Pla. 2d Dist. Ct. App.

1958).

7 Both types of limitation occurred in this case, though the

Florida Supreme Court's opinion does not discuss the distinction.

See 444 So.2d at 924.

8 In Douglas v. Alabama, 380 U.S. at 420, the Court's statement

that the case before it “cannot be characterized as one where the

prejudice in the denial of the right of cross-examination

constituted a mere minor lapse", could be read as requiring a

showing of prejudice. And the Florida Supreme Court, in crit-

icizing Mr. Sims' defense counsel for not asking "for an oppor-

tunity to make a proffer to show the relevance of the information

it was seeking to bring out," 444 So.2d at 924, seemed to imply

that a showing of prejudice is required. But in Davis v. Alaska,

the Court refused to "speculate as to whether the jury, as sole

judge of the credibility of witness, would have accepted " the

line of argument asserted by the defense 415 U.S. at 318. The

Court concluded that Davis was "denied the right of effective

cross-examination which would "be constitutional error of the

first magnitude and no amount of showing of want of prejudice

would cure it." Id. at 319 (quoting Brookhart v. Janis, 384 U.S.

1, 3 (1966) and Smith v. Illinois, 390 U.S. 129, I31 (1968)).

Similarly, in Alford v. United States, the Court reasoned that

Counsel often cannot know in advance what pertinent facts

may be elicited on cross-examination. For that reason it

is necessarily exploratory; and the rule that the

examiner must indicate the purpose of his inquiry does

not, in general, apply.... It is the essence of a fair

trial that reasonable latitude be given the cross-

examiner, even though he is unable to state to the court

what facts a reasonable cross-examination might develop.

Prejudice ensues from a denial of the opportunity to

place the witness in his proper setting and pw the

weight of his testimony and his credibility to a test,

without which the jury cannot fairly appraise them....

To say that prejudice can be established only by showing

that the cross-examination, if pursued, would necessarily

have brought out facts tending to discredit the testimony

= tae

whether the fact that this is a capital case, thus mandating a

heightened need for reliability, requires special scrutiny of

the abrogation of cross-examination?? The remainder of this

petition will show why Mr. Sims’ case is a proper vehicle for

resolution of these important issues.

B. THE VEHICLE

The key witness for the state was Curtis Baldree.19

Although initially charged with first degree murder and robbery,

he was allowed to plead guilty to two misdemeanors in return for

his testimony (R 445-446). Baldree testified that he was in the

pharmacy conducting the robbery with Sims and he related details

of the planning and carrying out of the robbery. Thus, he was an

alleged accomplice and unquestionably a very key witness for the

prosecution. "The accuracy and truthfulness of ([Baldree's]

testimony were key elements in the state's case against pe-

titioner." Davis v. Alaska, 415 U.S. at 318. See also United

States v. Lindstrom, 698 F.2d at 1163; Greene v. Wainwright, 634

F.2d at 275.

The trial court limited cross-examination of Baldree as

"repetitive." The judge never specified precisely what it was

repetitive of, but the record of the cross-examination makes

clear that counsel was not repeating matters already covered on

cros-. A réading of the cross-examination reveals plainly that

it was orderly and not repetitive. The judge's rulings only make

sense if he found repetitiveness in the fact that the defense was

questioning in areas covered in the direct examination of Baldree

or in the interrogation of other witnesses. And if that is what

the judge indeed meant, then his limitations on cross-examination

violated the Sixth Amendment.

in chief, is to deny a substantial right and withdraw one

of the safeguards essential to a fair trial.

282 U.S. 687, 692 (1931) (citations omitted). See also Davis v.

Alaska, 415 U.S. at 318 (noting constitutional dimension of

Alford).

9 See Coco v. State, 62 So.2d 892, 895 (Fla. 1953); Hahn v. State,

o.2d 166, 191 (Fla. 1952); Williams v. State, 356 $0.24 25,

27 (Pla. 2d Dist. Ct. App. 1980). 4

10 the Florida Supreme Court noted that Baldree and B. B. Halsell

were "the state's chief witnesses" against Sims. Sims v. State,

444 So.2a at 923.

The denial of the right of cross-ezamination in this case

occurred in two general ways. Throughout the cross-examination

of Baldree, the judge repeatedly interrupted defense counsel and

Ordered him to "move on." Finally, the judge cut off cross-

examination altogether.

1. Restrictions On What Cross-examination Was

Permitted by the Trial Judge,

Throughout defense counsel's cross-examination of Baldree,

the trial judge interposed on his own to limit questioning. The

judge interrupted and told defense counsel to "move on" more than

ten times (in 20 pages of transcript) during his interrogation of

this crucial witness (R 456, 460, 461, 462, 463, 466, 468). Five

examples suffice to illustrate the limits within which the court

permitted cross-examination of Baldree.

First, the judge told defense counsel to "move on" when he

was asking Baldree about his ownership of and experience with the

gun that Baldree said he used in the robbery and also about the

fact that he had fired that weapon at his wife (R 456). Of

itself the ownership and uses of the weapon is an aspect of the

offense which Sims had an absolute right to probe -- it was

testified to in direct examination and was certainly relevant to

the offense -- but also at that point counsel was attempting to

impeach the witness with an inconsistent statement (R 455). This

area of cross-examination is also important since in Baldree's

direct examination testimony he had tried to minimize his role in

the planning of the offense, almost Suggesting it was mere

happenstance. Baldree had said it was Robinson's idea and that

Robinson furnished the weapons just prior to the robbery (R 428,

430, 433).

The judge interposed a second time while defense counsel was

asking Baldree about the purchase and use of certain fingernail

polish -- a matter brought out on direct examination (R 428). The

following exchange occurred:

Q. [by defense counsel]: And who bought the

nail polish?

A. The best I can remember, it was Halsell. 4

, :

THE COURT: Let's move on, Mr. Rabinowitz,

please.

MR. RABINOWITZ: [Defense counsel] Okay.

THE COURT: I've had enough of that, Mr.

Rabinowitz. Let's move on.- s has gone for

- enough. Let's move on.

MR. RABINOWITZ: Yes, Your Honor.

MR. HEFFERNAN [Defense]: Your Honor may

counsel approach the bench?

THE COURT: No, Move on.

(emphasis supplied) (R 460-61).

Third, Baldree had testified on direct examination that he

took Sims to a Dr. Dunbar on January 3, 1978 (R 444). When

defense counsel started to inquire the trial judge interrupted

and tcld counsel that the witness had "already testified to all

this once" and instructed counsel not to "be so repetitious." The

judge then commanded defense counsel to “move on" (R 463). As in

the other areas where the judge interrupted, defense counsel's

cross-examination was not repetitive, having never inquired into

this area. This was an especially significant area of Baldree's

testimony since he had said Sims had been wounded in the offense

and that is why he took him to the doctor. Baldree's testimony

was questionable -- one witness testified that Baldree was in

another faraway city on that date (R 560, 565) and Dr. Dunbar

(who did not identify Sims) testified for the State that Robin-

son, not Baldree, took the wounded man to him (R 669-70).

Fourth, the court sustained an objection to defense ques-

tioning concerning Terry Wayne Gale, a person discussed by

previous and subsequent witnesses at the trial (R 348-49, 549,

569, 589). One theory of the defense was that it was Terry Gale,

not Terry Sims, who committed the robbery with Baldree and

Halsell. Terry Gale closely resembled Sims in height and hair

length and style; Gale was also similar to Sims in general build

except that he was a little heavier (R 349, 549). Gale's close

resemblence to Sims could have been the cause of the misiden-

tification of Sims. Also, the first officer on the scene said

that the perpetrator had a large head (R 526), not a thin head

like Sims. Halsell, the other alleged accomplice, had tegtified

that he had been involved in “quite a few crimes" with Gale (R

349) and that he had previously worked in crime with Baldree (R

~~ Pe ee

323-324). All three were from Jacksonville. Other witnesses

testified that Gale, Halsell and Baldree were frequent criminal

: associates (R 548, 549, 556, 588, 590) and that Sims was not

, 4 associated with them (R 548, 549, 556). Thus, Sims' attempted

cross-examination of Baldree regarding Gale involved a central

point in this case. The cross-examination also would have

revealed bias by showing a motive for Baldree to lie in order to

protect his “associate” while at the same time getting a deal by

identifying Sims. The cross-examination also would have laid the

foundation for impeachment by other contradictory evidence.

Pifth, the judge interrupted defense counsel's attempt to

question Baldree about the remarkable deal he received in

exchange for his testimony. (R 466). This time, however, not

only did the judge preclude questioning and prevent the witness

from answering, na the judge himself gave an answer. Again, the

judge's reasoning was that counsel could not question in the area

because it was "repetitious" (R 466). But Sims had never

examined Baldree about the deal he had made. When defense

counsel asked Baldree what deal he had received, the judge

interrupted to give an answer and to tell counsel to move on:

THE COURT: He testified two misdemeanors he

got a year apiece and they are running

consecutively. Please Mr. Rabinowitz, let's

not be repetitious.

(R 465-466). Baldree had testified on direct examination that he

had pleaded guilty to two misdemeanors and that “his part of the

deal" was “to tell the truth". (R 445-446) .11

11 an alleged accomplice's deal with the state is one of the most

important areas affecting the witness's credibility. It is thus

one of the areas most strictly guarded by the courts. See, @.9-,

Davis v. Alaska, 415 U.S. 308 (1974); Cowheard v. State, 365

So. ; (Pla. 3d Dist. Ct. App. 1975); Holt v. State, 378

So.2d 106 (Fla. 5th Dist. Ct. App. 1980); United States v. Mayer,

556 F.2d 245 (5th Cir. 1977). Mr. Sims was denied that Sight by

the trial judge. It is not merely the bare factsthat are

relevant, as the trial judge assumed. Also highly relevant are

the details, expectations, and reasons behind the deal. Equally

important is the witness's demeanor in responding to the probing

inquiry [Baldree had told Sims' prior attorney that he would do

anything to keep the deal. (R 659)].

- 15 -

RT

These examples demonstrate that the trial judge sua spontel2

restricted Mr. Sims' cross-examination of Baldree.

‘ 2. Termination of Cross-examination Altogether.

During the course of defense counsel's cross-examination of

Baldree, the trial court abruptly and sua sponte cut off cross-

examination altogether.

The judge simply turned to the prosecutor and asked whether

he had any further direct examination. The prosecutor said that

he did not, and then the judge sent the witness from the stand

and courtroom, and called the next witness:

Q. [by defense counsel) And do you know a

man by the name of Terwayne Gale?

A. Very vaguely.

Q. Do you know what Mr. Gale looks like,

sir?

A. I'm not sure I know him or not.

MR. DICK [prosecutor]: Objection. Irrele-

vant and immaterial.

12 the court's remarks themselves were prejudicial and emphasized

the error. The trial judge's repeated sua sponte interjections,

commands and admonitions to counsel throughout Sims’ examination

of the key state witness, certainly could have affected the

jurors. It could have conveyed to the jury that the judge viewed

aefense counsel's questions or areas of questioning to be

insignificant or irrelevant. An important example is the judge's

sua sponte giving an answer and stopping cross-examination when

Sims' counsel tried to ask Baldree about the deal he had made for

his testimony. See Espositio v. State, 243 So.2d 451 (Fla. 2d

Dist. Ct. App. 1971). By giving an answer and stopping inquiry,

the probability is great that the judge conveyed to the jury that

counsel's question was somehow irrelevant and that the deal

Baldree got was of little significance as it related to his

credibility.

The judge repeatedly interrupted counsel's cross~exam~

ination, telling him to "move on", "I've had enough", and “You

move on." These continual interjections, apart from the restric-

tion of examination, at best hindered counsel and could have

inhibited counsel from giving full representation to his client.

As we have shown, there was no reason for the judge's inter-

jection; defense counsel in no way had been argumentative,

obstreperous, or was asking improper questions, and throughout

the trial was fully respectful to the court. The influence of

the trial judge on the jury is "immense, Skelton v. Beall, 133

So.2d 477, 481 (Fla. 3d Dist. Ct. App. 1961); accord

Raulerson v. State, 102 So.2d 281 (Fla. 1958), especially in

the trial of a capital case, Williams v. State, 143 So.2d 484,

488 (Fla. 1962). Accordingly the Florida Supreme Court has

recognized:

[A] trial court should avoid making any remark within

the hearing of the jury that is capable directly or

indirectly, expressly, inferentially, or by innuendo of

conveying any intimation as to what view he tak of

the case or that intimates his opinion as to the

weight, character, or credibility of any evidence

adduced.

Leavine v. State, 109 Fla. 447, 147 So. 897, 903 (1933);

accord Seward v. State, 59 So.2d 529 (Fla. 1952).

+ ne heey,

THE COURT: The objection is sustained.

Any further direct?

MR. DICK: No, sir.

THE COURT: Pine. You may come down, sir.

Your next witness.

MR. DICK: The State calls Judith Thompson,

Your Honor. -

THE COURT: Judith Thompson, please.

(Emphasis supplied) (R 467-68). Defense counsel at that point

requested a bench conference and entered his objection to the

judce “having cut short" the cross-examination of Baldree (R

468). It was pointed out that "impeachment" of the witness, and

"his character and all those things about which he has knowledge

which are reievant to this case are at issue before this jury."

(R 468). The trial judge refused to consider counsel's argu-

ments: “Because of the repetitiveness I refuse to allow this

case to be dragged out interminably." (R 468-470). The judge

said "he's made his point three or four times, and the Court

considers that more than sufficient" (R 470).

Thus, this case involves not only the restriction of the

scope of cross-examination. It also involves the abrupt ter-

mination of any cross-examination.

= 37 =

ili

C. CONCLUSION :

In this capital case, the trial judge limited relevant

cross-examination of a key prosecution witness and then cut off

cross-examination altogether. The only reason for this cur-

tailment of the fundamental right of cross-examination was that

the interrogation was “repetitive” of areas covered in the direct

examination of the witness and in the interrogation of other

witnesses. The Court should grant plenary review to determine

whether such questioning is indeed “repetitive” under the test

articulated in Davis v. Alaska.

Respectfully submitted,

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Plorida

224 Datura Street/l3th Ploor

West Palm Beach, Florida 33401

(305) 837-2150

CRAIG S. BARNARD

Chief Assistant Public Assistant

MICHAEL A. MELLO

Assistant greet seen:

/ ?

————— ‘

Tatval

RAIG S. |BARNARD 7

\

Counsel for\ Petitioner

\

BY

\ : \

- 1§ -

922 Fla

Terry Melvin SIMS, Appellant,

v.

STATE of Florida, Appellee.

No. 57510.

Supreme Court of Florida.

Nov. 3, 1983.

Rehearing Denied Jan. 19, 1984.

Defendant was convicted in the Circuit

Court, Seminole County, Tom Waddell, Jr.,

J., of first-degree murder and robbery, and

he appealed. The Supreme Court, Boyd, J.,

held that: (1) trial court’s sustaining of

State's objection to certain questioning ofa

State’s witness during cross-examination

by defense was not a curtailment of cross-

examination requiring reversal; (2) trial

judge did not abuse his discretion in deny-

ing defendant's request for an evidentiary

hearing on whether the exclusion of poten-

tial jurors unalterably opposed to the death

penalty resulted in a jury predisposed to-

ward conviction; (3) trial court did not err

in refusing to allow further questioning of

a juror in a posttrial hearing about whether

the jurors had considered defendant's not

testifying in reaching their verdict; (4) no

prejudice arose from denial of defendant's

motion to require the State to elect one of

two counts submitted to jury; and (5) de

spite trial court's erroneous findings as to

some aggravating circumstances, sufficient

aggravating circumstances remained to

support sentence of death.

Affirmed.

444 SOUTHERN REPORTER, 24 SERIES

1. Criminal Law @ 1936.2

Trial court’s ruling sustaining the

State's objection to defense counsel's ques-

tioning of a State’s witness was not a cur-

tailment of cross-examination requiring re-

versal where the defense was allowed ex-

tensive cross-examination of the witness

and the State’s objection and the court's

ruling thereon came only after the defense

went into matters beyond the scope of the

witness’ direct testimony and the defense

did not ask for an- opportunity to make a

proffer to show the relevance of the infor-

mation it was seeking to bring out.

2. Criminal Law 1169.11

Vague reference by a defense witness

to the use of defendant’s “mug shot” in a

photographic display did not specifically re-

fer to a prior conviction and was not so

prejudicial as to require a new trial.

3. Witnesses 414(1) ‘

In prosecution for first-degree murde

and robbery, trial judge did not err in ex-

cluding from evidence documents corrobo-

rative of defense witness’ testimony, in

that the documents were superfluous to

the witness’ testimony and were not rele-

vant to a material issue of fact.

4. Criminal Law 10301)

Defendant failed to preserve issue for

appeal by failing to object at trial.

5. Jury €33(2.1)

In prosecution for first-degree murder

and robbery, trial judge did not abuse its

discretion by not granting defendant's re-

quest for an evidentiary hearing on wheth-

er the exclusion of potential jurors unalter-

ably opposed to the death penalty results in

a jury predisposed toward conviction.

6. Criminal Law €868

A juror’s testimony is relevant only if

it concerns matters that do not essentially

inhere in the verdict itself.

7. Criminal Law €=857(3)

A jury's consideration of a defendant's

failure to testify is not the same as con-:

SIMS v. STATE

_ Fla. 923

Cite as 444 So.24 922 (Fie. 1963)

rather is an example of its misunderstand-

ing or not following the instructions of the

court and such misunderstanding is a mat-

ter which essentially inheres in the verdict

itself.

8. Criminal Law 868

Trial court did not err in refusing to

allow further questioning of juror in a post-

” trial hearing about whether the jurors had

considered defendant's not testifying’ in

reaching their verdict, in that the record

showed that the jury was properly instruct-

ed that the State had the burden of proving

defendant's guilt and that defendant was

not required to respond.

9. Criminal Law 1166(1)

Ir: prosecution for first-degree murder

and robbery, no prejudice arose from the

trial cuurt’s denial of defendant’s motion to

require the State to elect between counts of

felony-murder of the victim based upon the

robbery of one person and a second count

charging felony-murder of the victim based

on the robbery of a second person, in that

the court in effect consolidated the two

verdicts by entering judgment of conviction

for a single offense of first-cegree murder.

10. Criminal Law 1177

In capital prosecution in which there

were no mitigating circumstances found at

the sentencing stage, two inztances of the

trial court giving improper double consider-

ation of or giving separate effect to similar

statutory aggravating circumstances was

harmless error. West's FS.A. § 921.-

141(5\(b-h).

11. Criminal Law 21177

In capital prosecution in which there

were no mitigating circumstances, the erro-

neous finding that the murder was heinous,

atrocious, or cruel was harmless error, in

light of remaining aggravating circum-

stances. West's F.S.A. § 921.141(5\b-h).

12. Criminal Law €°1208.1(4) ~

appropriate

§ 921.141(5\>-).

Richard L. Jorandby, Public Defender

and Craig S. Barnard, Chief Asst. Public

Nefender, Fifteenth Judicial Circuit, West

Palm Beach, for appellant.

Jim Smith, Atty. Gen., and James Dick-

zon Crock, Mark C. Menser and Richar¢ B.

Martell, Asst. Attys. Gen., Daytona Beach,

for appellee.

BOYD, J.

This case is an appeal from judgments of

conviction for first-degree murder and rob-

bery and a sentence, of death. We have

jurisdiction. Art V, ‘g 3fbX1), Fla. Const.

Terry Melvin Sims was convicted for the ~

first-degree murder of George Pfeil, an

off-duty deputy sheriff who entered a phar-

macy while it was being robbed by Sims

and three”other men. Two of these other

participants, Curtis Baldree and B.B. Hal-

sell, were the state's chief witnesses. They

testified that Sims and Baldree armed

themselves with pistols and entered the

pharmacy, while Halsell and the fourth par-

ticipant, Gene Robinson, waited in a car a

short distance away. Baldree said that he

went to the back of the store to rob the

pharmacist while Sims stayed at the front

of the store watching the duor. Sims or-

dered the customers and employees to the

back of the store and into the bathroom.

When Pfeil came into the store he and Sims

exchanged gunfire. Pfeil was shot twice

and Sims was wounded in the hip. Sims

and Baldree escaped the scene and later

joined their accomplices. The four men

then departed the area.

fis ‘dateenik a the iia aie wk

shooting was confirmed by pharmacist

Robert Duncan, Duncan’s wife and daugh-

ter both of whom worked at the store, and

two customers who identified appellant.

One of the customers, William Guggen-

heim, testified that he tried to leave the

store when he saw a man pointing a gun at

the pharmacist. He was stopped by Sims

who took his wallet. Guggenheim said he

then saw Sims shoot a man who was enter-

ing through the front door.

924 Fla |

The main theory of defense was mistak-

en identity. The defense attempted to dis-

credit Baldree and Halsell on the basis of

their bad character, drug addiction, crimi-

nal records, and the plea arrangements be-

tween them and the state. The defense

attacked the identification testimony of one

cf the customers as the product of a sug-

gestive photographic line-up and ques-

tioned the testimony of Guggenheim on the

basis of his earlier failure to choose appel-

_ lant from a photographic line-up. The de-

fense then presented evidence of appel-

lant’s resemblance to another individual

said to be a frequent criminal associate of

Baldree and Halsell.

The jury returned verdict® of guilty of

first-degree murder and robbery. At the

sentencing phase, the state presented a cer-

tified copy of a 1971 Orange County convie-

tion for assault with intent to rob. The

defense presented witnesses who testified

to appellant's good character and difficult

ommended death. Finding several aggra-

vating circumstances and no mitigating cir-

cumstances, the trial judge adopted this

recommendation.

{1} Appellant's first point on appeal is

that he was denied his sixth amendment

right to cross-examine a witness when the

trial court curtailed ‘ defense counsel’s

cross-examination of Baldree. He relies on

Corwell v. State, 361 So.2d 148 (Fla.1978).

The asserted error occurred when defense

counsel began questioning Baldree about

the individual whom appellant was said to

resemble. We do not find that the court's

ruling was a curtailment of cross-examina-

tion requiring reversal under Cozwell v.

State. Here the defense was allowed ex-

tensive cross-examination of the witness

and the state’s objection and the court's

ruling thereon came only after the defense’

went into matters beyond the scope of Bal-

dree’s direct testimony. The defense did

not ask for an opportunity to make a prof-

fer to show the relevance of the informa-

tion it was seeking to bring out. We find

no error in the judge's ruling.

444 SOUTHERN REPORTER, 24 SERIES

{2} Next appellant argues that the trial

judge should have granted his motion for

mistrial when a witness mentioned using

appellant’s “mug shot” in a photographic

display. Since these words were used by a

defense witness and did not specifically

refer to a prior conviction, we find that this

vague reference to other possible criminal 4

activity was not so prejudicial as to require

a new trial. See Straight v. State, 397

So.2d 903 (Fla.), cert. denied, 454 US.

1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981).

[3] Appellant also claims the trial judge

erred in excluding from evidence docu-

ments corroborative of a defense witness's

testimony. Since the documents were su-

perfluous to the witness's testimony and

were not relevant to a material issue of

fact, we find this point to be without merit.

[4] Next appellant argues that the pros-

ecutor made several improper comments

during his closing argument. Since appel

lant failed to object at the trial, he has

failed to preserve this point for appeal.

State v. Cumbie, 380 So.2d 1031 (Fla.1980);

Clark v. State, 363 So.2d 331 (Fla.1978).

{5} Appellant's fifth point on sppeal is

that the trial judge erred by not granting

his request for an evidentiary hearing on

whether the exclusion of potential jurors

unalterably opposed to the death penalty

results in a jury predisposed toward convic-

tion. We have held that a defendant is not.

entitled-to have jurors serve on his jury

who arc unalterably opposed to the death

penalty and that a trial judge may excuse

such jurors for cause. Maggard v. State,

399 So.2d 973 (Fla.), cert. denied, 454 US.

1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981);

Riley v. State, 366 So.2d 19 (Fla.1978).

Since we have previously determined as a

matter of law that there is no constitution-

al infirmity with excluding jurors who be-

cause of personal beliefs could not render a

verdict of guilty in a capital felony case,

the trial judge did not abuse his discretion

in denying the request for an evidentiary

hearing.

[6-8] Next appellant complains that he

was prevented from further questioning ®

ete «.

SIMS v. STATE

Cite as 444 Se0.24 922 (Fie. 1983)

juror tn a post-trial hearing about whether

the jurors had considered appellant's not

testifying in reaching their verdict. The

genera! rule in Florida is that a juror’s

testimony is relevant only if it concerns

matters which do not essentially inhere in

the verdict itself. Russ v. State, 95 So.2d

594 (Fla.1957); Parker v. State, 336 So.2d

426 (Fla. ist DCA), appeal dismissed, 341

So.2d 292 (Fla.1976). A jury’s considera-

tion of a defendant's failure to testify is

not the same as considering evidence out-

side the record, but is rather an example of

its misunderstanding or not following the

instructions of the court. Such misunder-

standing is a matter which essentially in-

heres in the verdict itself. Russ v. State;

Parker v. State. We find from the record

that the jury was properly instructed that

the state has the burden of proving the

defendant's guilt and that the defendant is

not required to respond. Therefore the

court did not err in refusing to allow fur-

ther questioning of the juror.

{9} Appellant’s final argument concern-

ing the guilt phase of the trial is that the

trial judge erred in allowing the jury to

return verdicts on multiple and inconsistent

counts. In one count appellant was

charged with premeditated murder or felo-

ny-murder of Pfeil based upon the robbery

of Duncan. In a second count he was

charged with premeditated murdér or felo-

ny-murder of Pfeil based on the robbery of

Guggenheim. Appellant filed a motion to

require the state to elect one or the other

count on the ground that since there was

only one killing he could be found guilty at

the very most of only one murder. The

trial court denied the motion, finding there

was no necessary inconsistency between

the two verdicts. We agree with this rul-

ing. See Reed v. State, 94 Fla. 32, 113 So.

630 (1927). In essence, the crime ef mur-

der was charged by alternative-counts of

the indictment. The court in effect consoli-

dated the two verdicts by entering judg-

ment of conviction for a single offense of

first-degree murder. No prejudice arose

from the denial of the motion to elect.

Fla. 925

We now consider whether the trial judge

properly imposed a sentence of death. As

was stated above, the jury recommended

the capital sentence. As aggravating cir-

cumstances, the trial judge found that ap-

pellant had previously been convicted of a

felony involving the use or threat of vio

lence, citing a previous conviction for as-

sault with intent to rob and a previous

conviction for robbery, section 921.-

141(5Xb), Florida Statutes (1977); that ap-

pellant created a great risk of death to

many persons, section 921.141(5Xc); that

the capital felony was committed in the

course of or in the attempt to commit or in

flight after committing a robbery, section

921.141(5Xd); that the murder of the uni

formed deputy sheriff was committed for

the purpose of avoiding arrest, section 921.-

141(5Xe); that the murder was motivated

by pecuniary gain, section 921.141(5Xf);

that the murder was committed to disrupt

or hinder the enforcement of the law, sec-

tion 921.141(5Xg); and that the murder was

especially heinous, atrocious, or cruel, sec-

tion 921.141(5\h). Finding no statutory mi-

tigating circumstances, the trial judge

found that the aggravating circumstances

outweighed any mitigating considerations.

Appellant points out several errors in the

judge’s findings. One is that the judge

should not have given separate considera-

tion to circumstances (d), commission dur-

ing a robbery, and (f), commission for pecu- .

niary gain. 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). Nor

should the judge have considered as sepa-

rate aggravating circumstances (e), avoid-

ing arrest, and (g), hindering law enforce-

ment. Clark v. State, 379 So.2d 97 (Fila.

1979), cert. denied, 450 U.S. 936, 101 S.Ct

1402, 67 L.Ed.2d 371 (1981). The judge

also erred in finding that this murder was

especially heinous, atrocious, or cruel.

E-9., Maggard v. State; Lewis v. State, 377

So.2d 640 (Fla.1979); Cooper v. State, 336

So.2d 1183 (Fla.1976), cert. denied, 431

U.S. 925, 97 S.Ct. 2200, 53 LEd2d 239

(1977).

9

926 Fu.

{10,11} Since there were no mitigating ~

circumstances, the two instances of improp-

er double consideration of or giving sepa-

rate effect to similar statutory aggravating

circumstances may be regarded as harm-

less error. We will simply consolidate the

separate statutory factors so as to accord

them their proper weight. The double reci-

tation of proven factors does not call the

propriety of the sentence into question un-

less it interferes with the mandated process

of weighing the circumstances. Hargrave

‘ v State, 366 So.2d 1 (Fla.1978), cert. de-

nied, 444 US. 919, 100 S.Ct. 239, 62

L.Ed.2d 176 (1979). Similarly, the errone-

ous finding that the murder was heinous,,.

atrocious, or cruel may be considered harm-

less error. Armstrong v. State, 399 So.2d

953 (Fla.1981).

{12) Despite these errors, therefore, we

. find that death is still the appropriate pen-

alty. It wus properly determined that the

capital felony was committed in the course

of a robbery, that it was committed for the

purpose of avoiding arrest,.and that appel-

lant had previously been convicted of life-

threatening crimes. Where there are some

aggravating and no. mitigating circum-

stances, death is presumed to be the appro-

priate punishment. State v. Dizon, 283

So.2d 1 (Fla.1973), cert. denied, 416 US.

943, 94 S.Ct. 1950, 40 L.Ed 2d 295 (1974).

Therefore, despite the judge's erroneous

consideration of some of the aggravating

circumstances, there remain several other

aggravating circumstances properly found

which support the sentence of death.

The judgments of conviction and the sen-

tence of death are affirmed. |

It is so ordered. ¢

ALDERMAN, CJ., and ADKINS,

BOYD, OVERTON, McDONALD and

EHRLICH, JJ., concur.

j==

444 SOUTHERN REPORTER, 2d SERIES

TAMPA-HILLSBOROUGH COUNTY

EXPRESSWAY AUTHORITY,

Petitioner,

v.

K.E. MORRIS ALIGNMENT SERVICE,

INC., Respondent.

No, 62281. . ©

" Supreme Court of Florida.

Nov. 10, 1983. .

Rehearing Denied Feb. 22, 1984.

Appeal was taken from judgment of

the Circuit Court for Hillsborough County,

James A. Lenfestey, J., denying business

damages to landowner in connection with

partial taking. The District Court of Ap

peal, 414 So.2d 299, reversed, and the con-

demnor appealed. The Supreme Court,

Boyd, J., held that as a prerequisite to an

award of business damages under statute,

business must have been in operation at

the location for which business damages

are claimed for more than five years.

Decision of District Court of Appeal

quashed; remanded with instructions.

Adkins, J., dissented. ;

1. Eminent Domain 122

Although power of eminent domain is

inherent feature of sovereign authority of

state, Constitution limits this power by re-

quiring that full compensation be paid to

owner for property taken. ‘ West's F.S.A.

Const. Art. 10, § fa).

2. Eminent Domain ¢90, 107

The payment of compensation for in-

tangible losses and incidental or consequen-

tial damages in connection with exercise of

eminett domain power, including business

damages. claimed as a result of taking of

property adjacent to business, is not re

quired by State Constitution, but is granted |

or withheld simply as a matter of legisla-

tive grace. West’s F.S.A. Const. Art. 10,

§ Ga). °

IN THE SUPREME COURT OF FLORIDA

f THURSDAY, JANUARY 19, 1984

TERRY MELVIN SIMS, ee

Appellant, ad CASE NO. 57,510

vs. #* Circuit Court Case No. 78-363-CFA

(Seminole)

STATE OF FLORIDA, aad

Appellee. ee is

The opinion filed November 3, 1983, has been revised.

af The motion for rehearing and response thereto, having been

considered in light of the revised opinion, is hereby denied.

A True Copy Cc

cc: Hon. Arthur H. Beckwith, Jr., Clerk

TEST: Hon. Tom Waddcil, Jr., Judge

Craig S. Barnard, Esquire

“T-type LEO Richard B. Martell, Esquire

se te. : Hon. Jim Smith

Clerk saitene Court -

RECEIVED

JAN 23 1984

* = ENDER OFFICE

FUELS ie

Supreme Court of Florida

| gece

- $7,310 o

No 1 yor | ort

settee

TERRY MELVIN SIMS, Appellant,

/

vs.

STATE OF FLORIDA, Appellee.

(November 3, 1983]

.

PER CURIAM.

This case is an appeal from judgments of conviction ‘for

first-degree murder and robbery and a sentence of death. We have

jurisdiction. Art. V, § 3(b) (1), Pla. Const.

Terry Melvin Sims was convicted for the first-degree

murder of George Pfeil, an off-duty deputy sheriff who entered a

pharmacy while it was being robbed by Sims and three other men.

Two of these other participants, Curtis Baldree and 8. 3B.

Halsell, were the state's chief witnesses. They testified that

Sims and Baldree armed themselves with pistols and entered the

pharmacy, while Halsell and the fourth participant, Gene

Robinson, waited in a car a short distance away. BSaldree said

that he went to the back of thw store to rob the pharmacist while

Sims stayed at the front of the store watching the door. Sizs

ordered the customers and employees to the back of the store and

into the bathroom. When Pfeil came into the store he and Sins

exchanged gunfire. Pfeil was shot twice and Sims was wounded in

the hip. Sims and Baldree escaped the scane and later joined

their accomplices. The four men then departed the area.

This account of the robbery and the shooting was confirmed ‘i

by pharmacist Robert Duncan, Duncan's wife and daughter both of

whom worked at the store, and two customers who identified

appeilant. One of the customers, William Guggenheia, testified

that he tried to leave the store when he saw 4 man pointing « gun

at the pharmacist. He was stopped by Sims who took his wallet.

Guggenheim said he then saw Sins shoot 4 man who was entering

through the front docr.

The main theory of defense was mistaken identity. The

defense attempted to discredit BSaldree and Halsell on the basis

of their bad character, drug addiction, criminal records, and the

plea arrangements between them and the state. The defense

attacked the identification testimony of one of the customers as

the product of a suggestive photographic line-up and questioned

the testiznony of Guggenheia on the basis of his earlier failure

to choose appellant from a photographic line-up. The defense

then presented evidence of appellant's resemblance to another

individual said to be a frequent criminal associate of Baldree

and Halsell.

The jury returned verdicts of guilty of first-degree

murder and robbery. At the sentencing phase, the state presented

a certified copy of a 1971 Orange County conviction for assault

with intent to rob. The defense presented witnesses who

testified to appellant's good character and difficult background

circumstances. The jury recommended death. Finding several

aggravating circumstances and no mitigating circumstances, the

trial judge adopted this recommendation. H

Appellant's first point on appeal is that he was denied .

his sixth amendment right to cross-examine a witness when the

trial court curtailed defense counsel's cross-examination of

Baldree. The asserted error occurred when defense counsel began

questioning Baldree about the individual whom appellant was said

to resemble. The record’ reveals, however, that when the court

sustained the state's objection to the questioning, the defense

acquiesced in the ruling. [It was only after the state had called

its next witness that the defense raised the matter of having

been “cut short” in cross-examination. Therefore the issue was

not sufficiently raised and preserved for review on appeal.

Moreover, we disagree with the argument that the court's ruling

was a curtailment of cross-examination requiring reversal under

Coxwell v. State, 361 $o.2d 148 (Fla. 1978). Here the defense

was allowed extensive cross-examination of the witness and the

state's objection and the court's ruling thereon came only after

the defense went into matters beyond the scope of Baldree's

direct testimony. The defense did not ask for an opportunity to

make a proffer to show the relevance of the information it was

seeking to bring out. We find no error in the judge's ruling.

Next appellant argues that the trial judge should have

granted his motion for mistrial when a witness oentioned using

appellant's “mug shot” in a photographic display. Since these

words were used by a defense witness and did not epoct tically

refer to a prior conviction, we find that this vague reference to

other possible criminal activity was not so prejudicial as to

require a new trial. See Straight v. State, 397 So.2d 903

(Pla.), cert. dented, 454 U.$. 1022 (1981).

Appellant also claims the trial judge erred in excluding

from evidence documents corroborative of a defense witness's

testimony. Since the documents were superfluous to the witness's

testimony and were not relevant to a material issue of fact, we

find this point to be without merit.

Next appellant argues that the prosecutor made several

improper comments curing his closing argument. Since appellant

failed to object at the trial, he has failed to preserve this

point for appeal. State v- Cumbie, 380 $o.2d 1031 (Fla. 1980);

Clark v. State, 363 So.7d 331 (Fla. 1978).

Appellant's fifth point on appeal is that the trial judge

erred by not granting his request for an evidentiary hearing on

whether the exclusion of potential jurors unalterably opposed to

the death penalty results in‘a jury predisposed toward

conviction. We have held that a defendant is not entitled to

have jurors serve on his jury who are unalterably opposed to the

death penalty and that a trial judge may excuse such jurors for

cause, Maggard v. State, 399 So.24 973 (Fla.), cert. denied, 434

U.S. 1059 (1981); Riley v. Stace, 366 So.24 19 (Pla. 1978).

Siace we have previously determined as a matter of law that there

is so constitutional infirmity with excluding jurors who because

of personal beliefs could not render a verdict of guilty ina

capital felony case, the trial judge did not abuse his discretion

in denying the request for an evidentiary hearing.

Next appellant complains that he was prevented from

further questioning a juror in a post-trial hearing about whether

the jurors had considered appellant's not testifying in reaching

their verdict. The general rule in Florida is that a juror's

testimony is relevant only if it concerns matters which do not

essentially inhere in the verdict itual?s. Russ v. State, 95

So.2d 594 (Fla. 1957); Parker v. State, 336 $0.24 426 (Fla. lst

DCA), apoeal dismissed , 341 $o.2d 292 (Fla. 1976). A jury's

consideration of a defendant's failure to testify is not the same

aa considering evidence outside the record, but is rather an

example of its misunderstanding or not following the instructions

of the court. Such misunderstanding is a matter which

essentially inheres in the verdict itself. Russ v. State; Parker

Vv. State. We find from the record that the jury was properly

instructed that the state has the burden of proving the

defendant's guilt and that the defendant is not required to

respond. Therefore the court did not err in refusing to allow

further questioning of the juror. .

Appellant's final argument concerning the guilt phase of

the trial is that the trial judge erred in allowing the jury to

return verdicts on multiple and inconsistent counts. In one

count appellant was charged with premeditated murder or

felony-aurder of Pfeil based upon the robbery of Duncan. [In a

second count he was charged with premeditated murder or

felony-murder of Pfeil based on the robbery of Guggenhein.

Appellant filed a motion to require the state to elect one or the

other count on the ground that since there was only one killing

he could be found guilty at the very most of only one murder.

=4<-

The trial court denied the motion, finding there was no necessary

inconsistency between the two verdicts. We agree with this

ruling. See Reed v. State, 94 Fla. 32, 113 So. 630 (1927). In

essence, the crime of surder was charged by alternative counts of

the indictment. The court in effect consolidated the two

verdicts by entering judgment of conviction for a single offense

of first-degree murder. No prejudice arose from the denial of

the motion to elect.

We now consider whether the trial judge properly imposed a

sentence of death. As was stated above, the jury recommended the

capital sentence. As aggravating circumstances, the trial judge

found that appellant had previously been convicted of a felony

idavolving the use or threat of violence, citing a previous

conviction for assault with tatent to rob and a previous

conviction for robbery, section 921.141(5)(b), Plorida Statutes

(1977); that appellant created a great risk of death to many

persons, section 921.141(5)(c); that the capital felony was

committed in the course of or in the attempt to commit or in

flight after committing «a robbery, section 921.141(5)(d); that

the saurder of the uniformed deputy sheriff was comitted for the

purpose of avoiding arrest, section 921.141(5)(e); that the

murder was mctivated by pecuniary gain, section 921.141(5) (£);

that the murder was committed to disrupt or hinder the

enforcement of the law, section 921.141(5)(¢); and that the

murder was especially heinous, atrocious, or cruel, section

921.141(5) (bh). Pinding no statutory aitigating circumstances,

the trial judge found that the aggravating circumstances

outweighed any mitigating considerations.

Appellant points out several errors in the judge's

findings. One is that the judge should not have given separate

consideration to circumstances (d), commission during a robbery,

and (f), commission for pecuniary gain. Provence v. State, 337

So.24 783 (Pla. 1976), cert. denied, 431 U.S. 969.(1977). Nor

should the judge have considered as separate aggravating

circumstances (e), avoiding arrest, and (g), hindering law

J

enforcement. Clark v. State, 379 So.2d 97 (Fla. 1979), cert.

denied, 450 U.S. 936 (1981). The judge also erred in finding

that this murder was especially heinous, atrocious, or cruel.

E.g., Maggard v. State; Lewis *’. State, 377 So.2d 640 (Fla.

1979); Coover v. State, 336 So.2d 1133 (Pla. 1976), cert. denied,

431 0.S. 925 (1977).

Since there were no mitigating circumstances, the two

instances of improper double consideration of or giving separate

effect to similar statutory aggravating circumstances may be

regarded as harmless error. We will simply consolidate the

separate statutory factors so as to accord them their proper

weight. The double recitation of proven factors does not call

the propriety of the sentence into question unless it interferes

with the mandated process of weighing the circumstances,

Hargrave v. State, 366 So.2d 1 (Fla. 1978), cert. denied, 444

G.S. 919 (1979). Similarly, the erroneous finding that the

murder was heinous, atrocious, or cruel may be considered

harmless error. Armstrong v. State, 399 So.2d 953 (Fla. 1981).

Despite these errors, therefore, we find that death is

still “he appropriate penalty. It was properly determined that

the capital felony was committed in the course of a robbery, that

it was committed for the purpose of avoiding arrest, and that

appellant had previously been convicted of life-threatening

crimes. Where there are some aggravating and no mitigating

circumstances, death is presumed to be the appropriate

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

dented, 416 U.S. 943 (1974). Therefore, despite the judge's

erroneous consideration of some of the aggravating circumstances,

there remain several other aggravating circumstances properly

found which support the sentence of death.

The judgments of ‘conviction and the sentence of death are

affirned.

It is so ordered.

ALDERMAN, C.J., ADKINS, SOYD, OVERTON, McDONALD and EHRLICH, JJ., Concur

NOT FINAL UNTIL TIME EXPIRES TO PILE REHEARING MOTION AND, IF 4

PILED, DETERMINED.

ee

IN THE SUPREME COURT OF FLORIDA

THURSDAY, JANUARY 19,

1984

TERRY MELVIN SIMS, ee

Appellant, ee CASE NO. 57,510

vs. ee Circuit Court Case No. 78-363-CFA

(Seminole)

STATE OF FLORIDA, ee

Appellee. ee

The opinion filed November 3, 1983, has been revised.

The motion for rehearing and response thereto, having been

considered in light of the revised opinion, is heteby denied.

A True Copy Cc

cc: Hon. Arthur H. Beckwith,°Jr., Clerk

TEST. Hon. Tom Waddell, Jr., Judge

Craig S. Barnard, Esquire

ogee 9 =). : Richard B. Martell, Esquire

s . White. Hon. Jim Smith

Clerk S eme Court

RECEIVED

4

JAN 23 1984

pyBLic DEFENDERS OFFICE

PHELAN ee

oof : ° im @

1.8 Yolen we

Se are (yi, ei

Supreme Court of Florida

No. $7,510

TERRY MELVIN SIMS, Appellant,

vs.

STATE OF FLORIDA, Appellee.

(November 3, 1983]

BOYD, J.

This case is an appeal from judgments of conviction for

first-degree murder and robbery and a sentence of death. We have

jurisdiction. Art. V, § 3(b) (1), Fla. Const. :

Terry Melvin Sims was convicted for the first-degree

murder of George Pfeil, an off-duty deputy sheriff who entered «

pharmacy while it was being robbed by Sims and three other zen.

Two of these other participants, Curtis Baldree and 8. 5.

Halsell, were the state's chief witnesses. They testified that :

Sims and Baldree armed themselves with pistols and entered the .

pharmacy, while Halsell and the fourth participant, Gene

Robinson, waited in a car a short distance away. Saldree said

that he went to the back of the store to rob the pharmacist while

Sims stayed at the front of the store watching the coor. Sims

ordered the customers and employees to the back of the store and

into the bathroom. When Pfeil came into the store he and Sims

exchanged gunfire. Pfeil was shot twice and Sims was wounded in

the hip. Sims and Baldree escaped the scene and later joined

their accomplices. The four man then departed the area.

This account of the robbery and the shooting was confirmed ~°

by pharmacist Robert Duncan, Duncan's wife and daughter both of

whem worked at the store, and two customers who identified

appellant. One of the customers, William Guggenheis, testified

that he tried to leave the store when he saw a man pointing a gun

at the pharmacist. He was stopped by Sims who took his wallet.

Guggenheim said he then saw Sims shoot a man who was entering

through the front door.

The main theory of defense was mistaken identity. The

defense attempted to discredit Baldree and Halsell on the basis

of their bad character, drug addiction, criminal records, and the

plea arrangements between them and the state. The defense

attacked the identification testimony of one of the customers as

the product of a suggestive photographic line-up and questioned

the testimony of Guggenheim on the basis of his earlier failure

to choose appellant from a photographic line-up. The defense

then presented evidence of appellant's resemblance to another

individual said to be a frequent criminal associate of Baliree

and dalsell.

The jury returned verdicts of guilty of first-degree

murder and robbery. At the sentencing phase, the state presented

a certified copy of a 1971 Orange County conviction for assault

with intent to rob. The defense presented witnesses who

testified to appellant's good character and difficult background

circumstances. The jury secommended death. Pinding several

aggravating circumstances and no mitigating circumstances, the

trial judge adopted this recommendation.

Appellant's first point on appeal is that he was denied

his sixth amendment right to cross-examine a witness when the

trial court curtailed defense counsel's cross-examination of

Baldree. He relies on Coxwell v. State, 361 So.2d 149 (Fla.

1978). The asserted error cccurred when defense counsel began

questioning Baldree about the individual whom appellant was said

to resemble. We do not find that the court's ruling was a

curtailment of cross-examination requiring reversal under Coxwell

v. State. Here the defense was allowed extensive cross-

examination of the witness and the state's objection and the

-2-

one

court's ruling thereon came only after the defense went into

matters beyond the scope of Baldree's direct testimony. The

defense did not ask for an opportunity to maxe a proffer to show

the relevance of the information it was seeking to bring out. We

find no error in the judge's ruling.

Next appellant argues that the trizl judse should have

granted his motion for mistrial when a witness mentioned using

appellant's “mug shot” in a photographic display. Since these

words were used by a defense witness and did not specifically

refer to a prior conviction, we find that this vague reference to

other possible criminal activity was not so prejudicial as to

require a new trial. See Straight v. State, 397 So.2d 903

(Fla.), cert. denied, 454 U.S. 1022 (1961).

Appellant also claims the trial judge erred in excluding

from evidance docusents corroborative of a defense witness's

testimony. Since the documents were s.pergluous to the witness's

testimony and were not relevant to a material issue of fact, we

find this point to be without merit.

Next appellant argues that the prosecutor made several

improper comments during his closing argument. Since appellant

failed to object at the trial, he has failed to preserve this

point for appeal. State v. Cumbie, 380 So.2d 1031 (Fla. 1980);

Clark v. State, 363 So.2d 331 (Fla. 1978).

Appellant's fifth point on appeal is that the trial judge

erred by not granting his request for an evidentiary hearing on

whether the exclusion of potential jurors unalterably opposed to

the death penalty results in a jury predisposed toward

conviction. We have held that a defendant is not entitled to

have jurors serve on his jury who are unalterably opposed to the

death penalty and that a trial judge may excuse such jurors for

cause. Maggard v. State, 399 So.2d 973 (Pla.), cert. denied, 454

U.S. 1059 (1981); Riley v. State, 366 So.2d 19 (Pla. 1978).

Since we have previously determined as a matter of law that there

is no constitutional infirmity with excluding jurors who because

of personal beliefs could not render a verdict of guilty ina

ajo

capital felony case, the trial judge did not abuse his discretion

in denying the request for an evidentiary hearing.

Next appellant complains that he was prevented from

further questioning a juror in « post-trial hearing about whether

the jurors had considered appellant's not testifying in reaching

their verdict. The general rule in Plorida is that a juror’s

testimony is relevant only if it concerns matters which do not

(

essentially inhere in the verdict itself. Russ v. State, 95

So.2d $94 (Pla. 1957); Parker v. State, 336 So.2d 426 (Fla. lst

DCA), appeal dismissed , 341 So.2d 292 (Pla. 1976). A jury's

consideration of a defendant's failure to testify is not the same

as considering evidence outside the. record, but is rather an

example of its misunderstanding or not following the instructions

of the court. Such misunderstanding is a matter which

essentially inheres in the verdict itself. Russ v. State; Parker

v. State. We find from the record that the jury was properly

instructed that the state has the burden of proving the

defendant’s guilt and that the defendant is not required to

respond. Therefore the court did not err in refusing to allow

further questioning of the juror.

Appellant's final argument concerning the guilt phase of

the trial is that the trial judge erred in allowing the jury to

return verdicts on miltiple and inconsistent counts. In one

count appellant was charged with premeditated murder or

felony-murder of Pfeil based upon the robbery of Duncan. In a

second count he was charged with premeditated murder or

felony-murder of Pfeil based on the robbery of Guggenhein.

Appellant filed a motion to require the state to elect one or the

other count on the ground that since there was only one killing

he could be found guilty at the very most of only one mrder.

The trial court denied the motion, finding there was no necessary

inconsistency between the two verdicts. de agree with this

Tuling. See Reed v. State, 94 Fla. 32, 113 So. 630 (1927). In

essence, the crime of murder was charged by alternative counts of

the indictment. The court in effect consolidated the two

=4-

fee

verdicts by entering judgment of conviction for 4 single offense

of first-degree murder. No prejudice arose from the denial of

the motion to elect.

We now consider whether the trial judge properly imposed a

sentence of death. As was stated above, the jury recommended the

capital sentence. As aggravating circumstances, the trial judge

found that appellant had previously been convicted of a felony

involving the use or threat of violence, citing a previous

conviction for assault with intent to rob and a previous

conviction for robbery, section 921.141(5)(b), Plorida Statutes

(1977); that appellant created a great risk of death to many

persons, section 921.141(5)(c); that the capital felony was

committed in the course of or in the attempt to commit or in

flight after committing a robbery, section 921.141(S)(d); that

the murder of the uniformed caputy sheriff was committed for the

purpose of avoiding arrest, section 921.141(5)(e); that the

murder was motivated by pecuniary gain, section 921.141(5) (f);

that the murder was committed to disrupt or hinder the

enforcemant of the law, section 921.141(5)(g); and that the

murder was especially heinous, atrocious, or cruel, section

921.141(5) (nh). Pinding no statutory mitigating circumstances,

the trial judge found that the aggravating circumstances

outweighed any mitigating considerations.

Appellant points out several errors in the judge's

findings. One is that the judge should not have given separate

consideration to circumstances (d), commission during a robbery,

and (£), commission for pecuniary gain. Provence v. State, 337

So.2d 783 (Pla. 1976), cert. denied, 431 U.S. 969 (1977). Nor

should the judge have considered as separate aggravating

circumstances (e), avoiding arrest, and (g), hindering law

enforcement. Clark v. State, 379 So.2d 97 (Fla. 1979), cert.

denied, 450 U.S. 936 (1981). The judge also erred in finding

that this murder was especially hainous, atrocious, or cruel.

E.g., Maggard v. State: Lewis v. State, 377 So.2d 640 (Pla.

ener

1979); Cooper v. State, 336 So.2¢ 1133 (Fla. 1976), cert. denied,

431 0.S$. 925 (1977).

Since there were no mitigating circumstances, the two

instances of improper double consideration of or giving separate

effect to similar statutory aggravating circumstances may be

regarded as harmless error. We will simply consolidate the

separate statutory factors so as to accord them their proper

weight. The double recitation of proven factors does not call

the propriety of the sentence into question unless ‘t interferes

with the mandated process of weighing the circumstances.

Hargrave v. State, 366 So.2d 1 (Pla. 1978), cert. denied, 444

Q.S. 919 (1979). Similarly, the erroneous finding that the

surder was heinous, atrocious, or cruel may be considered

harmless error. Armstrong v. State, 399 So.2d 953 (Pla. 1981).

Despite these errors, therefore, we find that death is

sei the appropriate penalty. It was properly determined that

the capital felony was committed in the course of a robbery, that

it was committed for the purpose of avoiding arrest, and that

appellant had previcusly been convicted of life-threatening

crimes. Where there are some aggravating and no mitigating

circumstances, death is presumed to be the appropriate

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

denied, 416 0.S. 943 (1974). Therefore, despite the judge's

erroneous consideration of some of the aggravating circumstances,

there remain several other aggravating circumstances properly

found which support the sentence of death.

The judgments of conviction and the sentence of death are

affirmed.

It is so ordered.

ALDERMAYZ, C.J., ADKINS, BOYD, OVERTON, MCOONALD and EHRLICH, JJ., Concur

NOT PINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF

FILED, DETERMINED.

ote

83-6736

ORIGINAL = “==

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

Supreme Court, U.S. |

on og tees SIMS, FILE D

etitioner,

APR §8 1984

Vv.

STATE OF FLORIDA, Alexander L. Stevas, Clerk

Respondent.

Sse ee eee ee ee = = s+... t+ ttt tt tt ttt ttt ttt lel ell lel eel tlt lll

—

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The Petitioner, TERRY MELVIN SIMS, who is now imprisoned in

the custody of the Florida Department of Corrections, asks leave

to file the accompanying Petition for Writ of Certiorari without

pre-payment of costs and to proceed in forma pauperis pursuant to

Rule 46 of the Rules of this Court. Petitioner has proceeded in

forma pauperis at al? times in the state courts below.

Petitioner has attached hereto his affidavit in substantialy the

form prescribed by Fed. Rules App. Proc., Form 4, and the Rules

of this Court.

ail ;

Respect fully Submitted,

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JA YOAS ‘a y NANA

CRAIG S. BARN?

224 Datura Street/1l3th Floor

West Palm Beach, Florida 33401

(305) 837-2150

No.

IN THE

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AR: SUPREME COURT OF THE UNITED STATES

@

OCTOBER TERM, 1983

TERRY MELVIN SIMS,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ST

AFFIDAVIT IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS

I, TERRY MELVIN SIMS,, 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.

l. Are you presently employed? Yes [ ] No (“Tr

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

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

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

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

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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 (V4

b. Rent payments, interest or dividends? Yes [ ] No* [L37—

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

No [Wi

d. Gifts or inheritance? Yes [ ] No 47

e. Any other sources? yes [ }] No [WW

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 V1 (include any funds in prison accounts)

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

owned. #60 LF fn ol Gart 26 -13%4

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

other valuable property (excluding ordinary household furnishings

and clothing)? Yes [ ] No nee

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. Nore

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.”

a ON a aa

Signature ‘of Petitioner

_ STATE OF FLORIDA )

COUNTY OF BRADFORD )

TERRY MELVIN SIMS, 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 correct.

X Jerry MM lure

Signaturg of Petitio

SUBSCRIBED and. SWORN; tp before me this / day of _, 1984.

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My Commission Expires:

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