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

' FILED

ORIBINAL = | oe

ALEXANDER L. STEVAS

IN THE

CLERK

> SUPREME COURT OF THE UNITED STATES

CASE NO. 83-6736

TERRY MELVIN SIMS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

RESPONSE TO

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

JIM SMITH

ATTORNEY GENERAL

RICHARD B. MARTELL

ASSISTANT ATTORNEY GENERAL

125 N. Ridgewood Avenue

Fourth Floor

Daytona Beach, Florida 32014

(904) 252-2005

COUNSEL FOR RESPONDENT

QUESTION PRESENTED

WHETHER THIS COURT SHOULD GRANT CERTIORARI

TO REVIEW AN EVIDENTIARY RULING OF THE STATE

TRIAL COURT REGARDING THE SCOPE OF CROSS-

EXAMINATION WHEREIN PETITIONER HAS NEVER

DEMONSTRATED ANY PREJUDICE THEREBY AND WHERE

THE FLORIDA SUPREME COURT CORRECTLY RESOLVED

THIS ISSUE IN ACCORDANCE WITH THIS COURT'S

APPLICABLE PRECEDENTS.

TOPICAL INDEX

> PAGE

nn: Cre, | oe os sb 5 e'6.b 6 bs oe URS 66 bes Bees es i-ii

ee oe a nh bob eee es bbe haben 1

Es [to is as iy Bla oes © a Ado oo 200 Ss eb ae bee l

CONSTITUTIONAL AND STATUTORY

Re ee ee ee ee 1

ES. Uy IE 6 5 08 6s ho eo 0 0 oO ee HEE ODS 1

HOW THE FEDERAL QUESTION WAS

RAISED AND DRULDED BELIW. ccc cc ccc cece ccc ccccee 3

REASONS FOR NOT GRANTING THE WRIT................ 5

DIG ag entre eye Sc gk lela ie elcie bo be a eee eee ee 12

GAO een SOP DOVE cts tcp kc cheeses eee ed et ata’ 13

APPENDIX (See Appendix Index)

AUTHORITIES CITED

CASRS PAGE

Cardinale v. Lousiana,

. i 8 te Bey.) er TrTrTTe re Le 7

Carillo v. Perkins,

Tae ae. Bae CSG Che. 19B6) ..ccvcccsescess 10

Castor v. State,

Sep WO. ee FOL CRIB. LOFTS). ccesicccccccvccees 3,7

Cheek v. Bates,

615 F.2d 559 (lst. Cir.),

cert. denied 446 U.S. 944 6) Serre ee 9,10

Chipman v. Mercer,

626 F.26@ 528, 531 (9th Cir. 1980)........... 8

Coxwell v. State,

. me gl’ Be! ee) | errr re ree 4,9

Davis v. Alaska

415 U.S. 308 Cee Pabb ae ee been eden en. siea a tas 5,6,10

Douglas v. Alabama,

Se ME TE CODD bb ccc cc ensenessemeses ube 5,6

Hitchcock v. State,

413 So. Zd 741 (Fla.),

cert. denied, U.S. __, 103 §.Ct. 274 (1982) 7

Jones v. State,

440 So. 2d DEO CPEG. . LOGS) occ cisccccsscssons. 9

Justus v. State,

ee cee Se CER. RODS). coc cscsvestawares 9

Maggard v. State,

399 So.2d 973 (Fla.)

cert. denied, 454 U.S. 1059 (1981).......... )

a

Pointer v. Texas,

380 U.S. G00 i: Frere era 7 eee a 5,6

Sims v. State,

¢ we RO fy ee | eer rere 1

Sireci v. State,

399 So.2d 964 (Fla. 1981)

cert. denied, 456 U.S. 984 (1982)........... 9

Slaughter v. State,

301 So.2d 762 (Fla. 1974)

cert. denied, 420 U.S. 1005 (1975).......... 9

Smith v. Illinois,

ee ee ED a6. wk Ss oo ole 6 A was .0 8 6 wed & 08 5,6

Steinhorst v. State,

°. ty! Ry eo 7,9

Street v. New York,

; ft ee Rt RP Se eee 7

IN THE

> SUPREME COURT OF THE UNITED STATES

CASE NO. 83-6736

TERRY MELVIN SIMS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

CERTIFICATE OF SERVICE

I RICHARD B. MARTELL, do hereby certify

that I am a member of the Bar of the Supreme Court

of the United States, and that I have served a copy

of the Response to Petition for Writ of Certiorari

to the Supreme Court of Florida, by depositing same

in the United States mail, first class postage

prepaid, as follows:

CRAIG S. BARNARD

Chie# Assistant Public Defender

15th Judicial Circuit of Florida

224 Datura Street/13th Floor

West Palm Beach, Florida 33401

All parties required to be served have

been served on this 18th eee 1984.

Richard B. tell

Assistan ttorney General

125 N. Ridgewood Avenue

Fourth Floor

Daytona Beach, Florida 32014

(904) 252-2005

- 13 -

AUTHORITIES CITED

CASES

United States v. Cleveland,

: ee Cis oe o's wep 64 0 ©

United States v. Gambler,

+ eee Go ge ee

United States v. Haimowitz,

th Cir. 1983,

cert. denied, _-U.S. __-104 S.Ct 974 (1984) ..

United States v. Haro,

573 F.2d 661 (10th Cir.)

cert. denied, 439 U.S 851 (1978).............

United States v. Weiner,

; th Cir.)

cert. Geuied, 439 U.S. SOL Cid76)............

United States v. Wesson,

ee SO re

United States ex. rel. Scarpelli v. George,

i: t Cir.

cert. denied, _—a-U.S. ~ __,_:~«103' S.Ct 817 (1983)

Wainwright v. Sykes,

ree} U.S. 7 8s) eRe ry OS

Washington v. State,

Se Oe A Oe SOs DEERE MERE ee eee ber wecee

OTHER AUTHORITIES

28 U.S.C. BRAZSICS). cc ccccccncccwwessseassessssccenee

§90.612 Flag. SESE. CLPTTP 6 a cccccivvscsewesvescecess

$90. 612(2) Pin. De Cee ee aloes ces vee

$921.24) Pie. i Ce ea aw wen sces

Ase. 2. 620 Fac Gee ee ee a Oe eee cases

Sixth Amendment to the United States

Cues oes os ee ee Ee a ke eS eecos

Eighth Amendment to the United States

COMBCECMEEOR. 6 cn tks Hod sen Gh ben Hocerevecvoes

Fourteenth Ammendment to the United States

Comees i aeis:« & v a.& he eee ek oa 6668 ccc ce

=

PAGE

9,10

10

or oOo FY eS

ee EEEEOEOEOEOOOOOOeee_O

OPINION BELOW

7

The Florida Supreme Court's opinion in

this cause was reported as Sims v. State, 444 So.2d 922

(Fla. 1983), and a copy of such is included in Respondent's

appendix (See Appendix, part A).

II. JURISDICTION

Review is sought pursuant to 28 U.S.C.

xe

§1257(3).

Ill. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In his pleading Petitioner contends that this

cese involves the Sixth, Eighth and Fourteenth Amendments to

the United States Constitution, as well as §921.141 Fla. Stat.

(1977), Florida's capital sentencing statute. Inasmuch

as Petitioner has raised no issue relating to his sentence

of death in the instant petition, Respondent is unable to

find the Eighth Amendment or §921.141 applicable. For reasons

set out more fully below, Respondent also contends that

Art.I §16 Fla. Const. and §90.612 Fla. Stat.(1977) are involved

in this case. Art.I §16 is that provision of Florida's

Constitution detailing the rights of an accused in a criminal

proceeding; §90.612 is a legislative enactment of that

portion of the Evidence Code involving, inter alia, cross-

examination. Copies of these two provisions are included

in Respondent's appendix (See Appendix, part B).

IV. STATEMENT OF THE CASE

In his pleading, Petitioner has discussed

in detail the evidence presented by the State and defense,

in an attempt to put the evidentiary issues complained of

in context. Respondent agrees that such task is necessary,

but, no doubt due to the nature of the adversary process,

disagrees with the emphasis given to or omitted from certain

facts in Petitioner's recitation.

—

Accordingly, Respondent briefly restates that evidence below

wh?ch it views as relevant to this Court's understanding of

the issue presented.

While it is true that Curtis Baldree, a former

co-defendant of Petitioner, whose cross-examination is the

subject of this proceeding, can be described as a chief or

key witness for the state, it must be noted that it was not

Baldree's testimony alone which linked Petitioner to the

shooting of George Pfiel. Baldree, as well as another co-

defendant, James Halsell, testified as to the preparations

made for the robbery which occurred, as well as the aftermath

thereof, wherein Petitioner, wounded, acknowledged having

shot a policeman (R310-322;332;436-446). Three independent

witnesses identified Petitioner as one of the robbers of

the pharmacy and one described him as the participant who

herded many of the customers to the back of the store as the

incident was progressing (R404;405;482-7;504;505). Witness

Guggenheim testified the Petitioner had shot the deputy

as the latter had tried to enter the store (R456). From

the testimony of this witness, as well as that of Judith

Thompson, it is clear the Petitioner fired the first shot

(R496,472). Thus, despite the importance of Baldree's

testimony, it is clear that the jury had other testimony

upon which to rely in deciding upon Petitioner's guilt or

innocence.

As Petitioner has also noted, an acquaintance

of his, Bonnie McCumbers, testified at trial that he

[Petitioner] had been in Lake City at the time of the

incident (R598). It was, or course, up to the jury again

to determine the weight to be accorded this testimony, just

as it was up to them to consider many of the other matters

cited by Petitioner, i.e. the drug use of Petitioner's

co-defendants, some witnesses failure to identify Petitioner

from photo lineups as opposed to at trial etc.

V. HOW THE FEDERAL QUESTION WAS RAISED AND DECIDED BELOW

» Respondent contends, inter alia, that no

federal question is involved in this case and that Petitioner's

claims as to cross-examination were resolved by the Florida

Courts in terms of state, as opposed to federal, law. For

the sake of convenience, however, Respondent details the

manner in which the cross-examination issue was raised and

decided below.

In order to preserve an issue for appellate

review in Florida, a defendant must enter a contemporaneous

and specitic objection at the time a putative error is

committed. See e.g. Castor v. State, 365 So.2d 701 (Fla.1978).

The record in this case indicates that Petitioner imposed

no objection to any of the court's rulings or statements

during the cross-examination of witness Baldree. The only

matter which could pass for an objection occurred shortly

after all examination of the witness had ended and was made

at a bench conference. At such time, one of Petitioner's

attorneys stated that he wished to take issue with the court

for having allegedly cut short the cross-examination of

Baldree, as that witness's character and knowledge were

relevant to the case (R468). It should be noted that

Petitioner's counsel never stated those matters which he was

allegedly prevented from raising. (See Appendix, part C,

transcript of cross-examination (R446-470)).

In his appellate briefs to the Florida Supreme

Court, Petitioner raised a broad-based point on appeal

regarding the alleged restriction of cross-examination of

witness Baldree. Petitioner argued then, as he does now,

that cross-examination was not only curtailed by restrained

by the trial court, the latter occurring whenever the trial

court admonished defense counsel to "move along". Petitioner

similarly identified at least five "examples" of restriction

and further contended that the judge's very action in directing

counsel to move along constituted prejudicial or reversible

a

error. It was in such appellate pleadings that Petitioner

first identified the Sixth Amendment to the United States

Constitution as having been violated at his trial (See

Appendix, part D, excerpts of Initial and Reply briefs filed

in appeal).

In its Answer brief Respondent in this cae,

the State of Florida, contested the preservation for review

of any and all of Petitioner's arguments in relation to

cross-examination; additionally, tc the extent that the

merits of any claim were addressed, the State relied solely

upon Florida law (See Appendix, part E, excerpt of Answer

brief filed in appeal). When the Florida Supreme Court

resolved this issue in its decision in this case, a very

narrow construction was utilized. The court described

Petitioner's argument as constituting an assertion that

his Sixth Amendment right to cross-examine a witness had

been denied when the trial court curtailed defense

examination of witness Baldree; the court noted that

Petitioner relied upon one of its own prior decisions,

Coxwell v. State, 361 So.2d 148 (Fla. 1978). The court

examined the question only in reference to the trial court's

sustaining of a state objection to defense questioning

regarding an individual whom Petitioner allegedly resembled;

this ruling of the trial court is identified as Petitioner's

fourth example of the alleged restriction of cross-examination

(See Petition at 14-15).

The Florida Supreme Court found that the ruling

at issue did not constitute a curtailment of cross-examination

requiring reversal under Coxwell. It was noted that the

defense had been allowed extensive cross-examination of the

witness and that the State's objection had only come after

the defense questions had gone beyond the scope of Baldree's

‘testimony on direct. The court expressly noted that the

defense had not asked for an opportunity to make a proffer

to show the relevance of "the information which it was seeking

=

to bring out", the court then found no error in the judge's

ruPing. (See Appendix, part A, copy of decision of Florida

Supreme Court).

It is, thus, clear that the Florida Supreme

Court examined Petitioner's issue on appeal only in reference

to the correctness of the evidentiary ruling made. The

Florida Supreme Court did not address the merits of any claim

that cross-examination in toto had been curtailed or that

the judge's comments in and of themselves had constituted

prejudicial error. Further, the court's noting of Petitioner's

failure to proffer would seem to indicate that, even as to

the one ruling reviewed, complete preservation of the claim

of error was not recognized. In short, Respondent disputes

the contention in the petition to the effect that the

Florida Supreme Court clearly resolved this issue on the

merits (Petition at 2). Respondent also contends that to

the extent that any issue was discussed on the merits, the

matter was resoived on the basis of state, as opposed

to federal, law; this argument will be more fully briefed

below.

VI. REASONS FOR NOT GRANTING THE WRIT

Petitioner has urged this Court to grant

certiorari to review an alleged curtailment and restriction

of cross-examination in the lower court, and has further

presented five specific questions regarding cross-examination

which he asserts this case presents the perfect vehicle to

resolve. Respondent disagrees. Whereas this Court has,

in the past, granted certiorari where it has been felt that

in a state proceeding a defendant's right to cross-examination

has been impermissibly constrained, see e.g. Pointer v.

Texas, 380 U.S. 400 (1965),Douglas v. Alabama, 380 U.S. 415

(1965), Smith v. Illinois, 390 U.S. 129 (1968), Davis v.

Alaska, 415 U.S. 308 (1974),this case has nothing in common

with such precedents. The instant case does not represent

one in which the trial court declared a complete field of

io Soe

inquiry off limits, as occurred in Smith and Davis, nor does

it %represent one in which the defense was denied all opportunity

for meaningful confrontation, as in Douglas and Pointer.

Rather, this case is one of many in which a state trial court

exercised its discretion in passing upon an objection to one

of the questions raised during cross-examination; Florida, as

well as many federal courts, recognizes the broad discretion

a trial judge enjoys as to the scope of permissable cross-

examination. Petitioner has failed to make his case on

both procedural and substantive grounds.

Before turning to the particulars of such,

however, it is instructive to examine just what did, and

did not, occur at Petitioner's trial. Petitioner has

alleged that the trial judge not only restricted cross-

examination on repeated occasions, but also curtailed it

in toto by cutting off defense counsel. Petitioner has

offered five discrete examples of "restriction" and urges

this Court to grant certiorari in order to review a

number of issues related to cross-examination, including

whether or not the trial judge in this specific case was

correct in regarding portions of defense counsel's cross-

examination as repetitive. Respondent respectively submits

that the latter question is not of constitutional moment.

Further, the record in this case is clear that in every one

of the five "examples" of "restrictions", Petitioner was

deprived of nothing through the actions of the trial judge.

Witness Baldree answered Petitioner's questions regarding

his prior discharge of a firearm during an argument with

his girlfriend (R456), co-defendent Halsell's purchase of

nail polish for use during the robbery (R460), the date upon

which he took Petitioner to Dr. Dunbar (R463) and his knowledge

of one Terry Wayne Gale (R465-6); all questions related to

collateral matters and Petitioner has never demonstrated

that he was denied further interrogation on any one of these

subjects. Similarly, although the terms of Baldree's deal

ra

with the State were of greater importance, Petitioner never

dem@nstrated that he wished to pursue the matter further, after

the trial judge restated the plea agreement (R465-6). The

Florida Supreme Court was correct in recognizing that

Petitioner was afforded extensive cross-examination of witness

Baldree, and whereas Petitioner has identified some important

constitutional concepts in his petition, he has failed to

demonstrate that he suffered the violation of any constitutional

right during his state trial.

In Street v. New York, 394 U.S. 576 (1969) this

Court held that when the highest court of a state has failed

to pass upon a federal question, it will be assumed that the

omission was due to want of proper presentation in the state

courts, unless the aggrieved party can demonstrate otherwise.

See also Cardinale v. Louisiana, 394 U.S. 437 (1969). As has

been noted, Petitioner's only objection at trial was after the

examination of witness Baldree had concluded and such objection

was highly generalized; the Florida Supreme Court did not

address at least 80% of Petitioner's argument in relation to

cross-examination, and as to that portion addressed, the

court noted that Petitioner had never proffered the evidence

which he felt he had been prevented from bringing out. Again

as noted earlier, Florida requires a contemporaneous specific

objection in order to preserve a point for appellate review

and additionally Florida courts have required that one seeking

the admission of testimony must demonstrate its relevance.

See e.g. Castor v. State, 365 So.2d 701 (Fla. 1978); Steinhorst v.

State, 412 So.2d 332 (Fla. 1982); Hitchcock v. State, 413 So.2d

741 (Fla.), cert. denied, U.S. __, 103 S.Ct. 274 (1982);

Wainwright v. Sykes, 433 U.S. 72 (1977). Respondent contends

that the Florida Supreme Court's failure to address the bulk

of Petitioner's argument as to cross-examination was a

recognition that such point had not been properly presented

and that, pursuant to Street, this Court should similarly

decline to reach the issue.

Furthermore, even if any claim regarding cross-

exanination was properly presented below, the extent to which

such claim related to the federal constitution is highly

debatable. In the context of federal habeas corpus, the

court in Chipman v. Mercer, 628 F.2d 528, 531 (9th Cir. 1980)

observed that neither the confrontation clause nor the case-by-

case application utilized by courts to resolve confrontation

questions should be interpreted to permit persons convicted

in state proceedings to use putative Sixth and Fourteenth

Amendment claims as vehicles for obtaining federal review

of evidentiary questions properly left to the state courts.

Respondent contends that the above language is applicable

to this situation, and that not every cry of "restriction of

cross-examination" is synonymous with an allegation that a

federal constitutional right has been violated. As noted

earlier, Florida's Constitution confers the right of confron-

tation upon all accused. See Art.I, §16 Fla. Const. Whereas

the Florida Supreme Court in its decision did note that

Petitioner was alleging violation of his Sixth Amendment

rights, and did not expressly cite to Florida's Constitution,

Respondent still contends that an independent state ground

exists to uphold Petitioner's conviction; similarly, it

would seem that the court's finding that the questioning

at issue was beyond the scope of direct examination was,

while not expressly stated, premised upon §90.612(2)

Fla. Stat. (1977). Accordingly, Respondent contends that

Petitioner has failed to demonstrate that a federal claim

was left unredressed or was addressed incorrectly by the

Florida Supreme Court.

To the extent that the merits of Petitioner's

claim are at all relevant, he has further failed to demonstrate

that the trial judge abused his discretion in any manner

relating to cross-examination or that, should such have

occurred, he [Petitioner] was prejudiced to any degree thereby.

In prior capital cases, among others, the Florida Supreme

—

Court has been stringent in protecting the defense's right to

cro¥%s-examination, reversing when necessary as in Coxwell,

but affirming when it is clear that the evidentiary ruling

complained of was one merely within the discretion of the

court and where at most only collateral or irrelevant matters

were excluded. See Sireci v. State, 399 So.2d 964 (Fla. 1981),

cert. denied 456 U.S. 984 (1982); Maggard v. State, 399 So.2d

973 (Fla.), cert. denied 454 U.S. 1059 (1981); Steinhorst,

supra; Washington v. State, 432 So.2d 44 (Fla. 1983);

Justus v. State, 438 So.2d 358 (Fla. 1983); Jones v. State,

440 So.2d 570 (Fla. 1983); Slaughter v. State,301 So.2d 762

(Fla. 1974), cert. denied 420 U.S. 1005 (1975). Significantly, in

two of the above cases, Jones and Steinhorst, the court noted

that the defendant in each case,while alleging that his cross-

examination of a state witness had been curtailed, had

failed to call the witness himself as a means of "reaching"

the desired testimony, which was outside the scope of direct.

This represents yet another road untaken by Petitioner in

this case, in relation to his cross-examination of witness

Baldree as to the alleged look-alike, Terry Wayne Gale.

It is equally significant that the Florida

standard of review regarding cross-examination seems compatible

with that utilized by federal courts. Thus, circuit courts

of appeal throughout the country, recognizing that the scope

and extent of cross-examination is within the discretion of

the trial court, have held that limitation of cross-examination

will not result in reversal unless it is clear that a

defendant has been denied his right to confrontation thereby.

See United States v. Wesson, 478 F.2d 1180 (7th Cir. 1973);

United States v. Haro, 573 F.2d 661 (10th Cir.), cert. denied

439 U.S. 851 (1978); United States v. Weiner, 578 F.2d 757

(9th Cir.), cert. denied 439 U.S. 981 (1978); United States v.

Cleveland, 590 F.2d 24 (lst Cir. 1978); Cheek v. Bates,

615 F.2d 559 (lst Cir.), cert. denied 446 U.S. 944 (1980);

United States v. Haimowitz, 706 F.2d 1549 (llth Cir. 1983),

—

cert. denied, U.S. __, 104 S.Ct. 974 (1984). In observations

applicable sub judice, the court in Weiner noted that a trial

judge has a duty to control cross-examination and to prevent

it from unduly burdening the record with cumulative or

irrelevant matter; in Cheek v. Bates the court reversed the

granting of a petition for writ of habeas corpus, finding

that at trial the defense had never made clear the purpose

of their proposed questioning, and that consequently the trial

court's ruling had not in fact constituted a curtailment of

cross-examination. In light of such precedent, it is clear

that the actions of the trial judge in this case are not as

unprecedented or iniquitious as Petitioner alleges.

Additionally, as at least three federal courts

have recognized, not every restriction in cross-examination

results in reversal of a conviction. The Fifth, Seventh

and District of Columbia Circuit Courts of Appeal have all

found Davis v. Alaska to be no bar to the finding of harmless

error in the context of alleged restriction or curtailment

of cross-examination. See United States v. Gambler, 662 F.2d

834 (D.C. Cir. 1981); United States ex. rel. Scarpelli v. George,

687 F.2d 1012 (7th Cir. 1982), cert. denied, U.S._.__, ~_103

S.Ct. 817 (1983); Carrillo v. Perkins, 723 F.2d 1165 (5th Cir.

1984). Thus, in Gambler, the court found that the trial

court should have allowed the defense to question a prosecution

witness as to the existence of certain civil suits which

could exemplify bias; such restriction, however, was found

to be harmless in light of the rest of the evidence. A

similar result ensued in Carillo, where it was recognized

that the trial court had impermissibly prevented the defendant

from impeaching a critical state witness. In Scarpelli

the appellate court reversed the district court's granting

of a petition for writ of habeas corpus, finding that any

restriction in cross-examination had been harmless. The

above cases are all significant, as Petitioner has asserted

that this case presents the proper vehicle for this Court to

- 10-

determine whether or not a defendant alleging restriction of

cross-examination need also shor resultant prejudice. Assuming

that the Florida Supreme Court considered Petitioner's claim

in terms of harmless error, such action would not seem as

unprecedented as Petitioner apparently believes.

In conclusion, this Court's exercise or its

discretionary jurisdiction would be unwarranted in this case.

In addition to Petitioner's failure to demonstrate that he

preserved and presented a federal question through all phases

of the proceedings, Petitioner has not shown that he is doing

more than challenging a discretionary evidentiary ruling

of a state trial court. Had Petitioner ever sought to

apprise the trial” judge of his theory of relevance as to any

of his allegedly curtailed lines of questioning, it is more

than likely that this appellate point would never have come

to exist. As it is, Petitioner asks this Court to presume

the violation of his Sixth Amendment right to confrontation

and cross-examination based on a record bereft of any showing

of prejudice. The Florida Supreme Court thoroughly reviewed

Petitioner's conviction and its resolution of this point

on appeal regarding cross-examination is in accord with its

own precedents, as well as those of this Court and other

federal courts. Furthermore, despite Baldree's importance

to the:case, there was other sufficient evidence from which

the jury could find Petitioner guilty of the charges. All of

the above factors render the instant case an unsuitable one

for certiorari.

- jl -

VIL. CONCLUSION

For the foregoing reasons, the instant petition

for writ of certiorari should be denied.

Respectfully submitted,

IM SMITH

ATT EY GENERAL

\ Ah ae Waveters

RICHARD B. MA

ASSISTANT AT cat GENERAL

125 N. Ridgéwood Avenue

Fourth Floor

Daytona Beach, Florida 32014

(904) 252-2005

COUNSEL FOR RESPONDENT

wat