Respondents Brief — Parker v. Dugger

=_

, Supreme Court, U.S,

™ FILS

[Sn PY mp

’ ; 7 wed., JR

IN THE UNITED STATES SUPREME COURT - ———

OCTOBER TERM 1989

CASE NO. 89-5961

ROBERT LACY PARKER,

Petitioner,

Vv.

RICHARD L. DUGGER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT OF APPEALS

BRIEF OF RESPONDENT

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

CAROLYN M. SNURKOWSKI

ASSISTANT ATTORNEY GENERAL

MARK C. MENSER

ASSISTANT ATTORNEY GENERAL

DEPARTMENT OF LEGAL AFFAIRS

THE CAPITOL

TALLAHASSEE, FL 32399-1050

(904) 488-0600

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

(Restated) !

I. Is the application of Florida's

jury override standard in an individual

case subject to Eighth pnandnaet review,

and, if so, what standard of review is

applicable?

II. Is a constitutional claim

procedurally barred if it is not raised

on direct appeal or in any collateral or

post-conviction proceeding in the state

and federal trial courts?

III. Where the jury was permitted

to convict Petitioner of first degree

murder under either a felony murder or

premeditated murder theory, and where

1 The Petitioner's questions, as stated

in his brief, differ from the questions

set forth in his petition for writ of

certiorari. The Respondent has restated

the questions to bring the issues into

line with the petition. In addition,

Mr. Parker has affirmatively abandoned

the fifth claim asserted in his original

petition.

“duress” is not a recognized defense to

murder, is it harmless error to disallow

a defense requested jury instruction on

duress?

IV. May a prosecutor whose cross-

examination of the defendant is

interrupted by a recess subsequently

question the defendant about his

consultation with his attorney during

the recess?

o ha

PAGE(S)

QUESTIONS PRESENTED

FOR REVIEW i-ii

TABLE OF CONTENTS iii-iv

TABLE OF AUTHORITIES iv-vi

OPINIONS BELOW 1

STATEMENT OF JURISDICTION 1

CONSTITUIONAL AND STATUTORY

PROVISIONS INVOLVED 1-2

STATEMENT OF THE CASE 3-17

SUMMARY OF ARGUMENT 18-19

ARGUMENT

ISSUE I

THE FLORIDA SUPREME COURT'S

"TEDDER RULE" FOR REVIEWING

JURY OVERRIDE DEATH SENTENCES

IS A RULE OF STATE LAW NOT

SUBJECT TO FEDERAL

REAPPLICATION

ISSUE II

THE COURT OF APPEALS DID

NOT ERR IN HOLDING THAT

PETITIONER'S "STROMBERG"

CLAIM WAS PROCEDURALLY

BARRED

- iii -

20-29

30-36

TABLE OF CONTENTS

(Continued)

ISSUE III

THE PETITIONER IS NOT

ENTITLED TO FEDERAL

CREATION OF A "“DURESS”"

DEFENSE TO FIRST DEGREE

MURDER FOR THE STATE OF

FLORIDA

ISSUE IV

THE PETITIONER'S DUE

PROCESS RIGHTS WERE NOT

VIOLATED BY THE COURT'S

DECISION TO ALLOW CROSS

EXAMINATION ON THE TOPIC

OF "COACHING" BY COUNSEL,

DURING A RECESS

CONCLUSION

= iV «

PAGE(S)

37-40

41-44

45

TABLE OF AUTHORITIES

Barclay v. Florida,

463 U.S. 939 (1983)

Brown v. State,

392 So.2d 1327 (Fla. 1981)

Cawthon v. State,

382 So.2d 796 (Fla. 1980)

Chestnut v. State,

505 So.2d 1352 (Fla. 1987)

Elledge v. State,

346 So.2d 998 (Fla. 1977)

le v. Isaac,

456 U.S. 107 (1982)

Enmund v. State,

399 So.2d 1362 (Fla. 1981)

Geders v. United States,

425 U.S. 80 (1976)

Godfrey v. ia,

446 U.S. 420 (1980)

Goodwin v. State,

405 So.2d 170 (Fla. 1981)

Green v. State,

475 So.2d 235 (Fla. 1985)

Gryger v. Burke,

334 U.S. 728 (1948)

17,19,

34

21

TABLE OF AUTHORITIES

(Continued )

CASES

Hawkins v. State,

436 So.2d 44 (Fla. 1983)

Hildwin v. Florida,

490 U.S. __

104 L.Ed. ta 726 (1989)

Lewis ze Jeffers,

coe CN

lil L.Ed. 7a 606 (1990)

Murray - Giarratano,

U.S. _

106 L.Bd.2d 1 (1989)

Pennsylvania v. Finley,

481 U.S.

95 L.Ed. 2a 539 (1987)

Perry v. —

468 U.S.

109 S.Ct. 594,

102 L.Ed.2d 624 (1989)

Proffitt v. Florida,

428 U.S. 242 (1976)

Rose v. Lundy,

455 U.S. 509 (1982)

Schneckloth v. Bustamonte,

412 U.S. 218 (1972)

Spaziano v. Florida,

468 U.S. 447 (1984)

PAGE(S)

37

24,26,

28

18,22

27

27

19,42

28

27

27

18,23,

28

TABLE OF AUTHORITIES

(Continued)

CASES PAGE(S)

Stromberg v. California

263 U.S. 359 (1931) 15, 30

Tedder v. State,

322 So.2d 906 (Filia. 1975) 10,26

Wainwright v. oT

433 U.S. 72 (1977) 27

Walton v. Arizona,

497 U.S. _

111 &.Bd.2a 511 (1990) 24

Wright v. State, |

402 So.2a 493 (Fla. 1961) 386,39

STATUTES AND CONSTITUTIONS

28 U.S.C. 82254 1,27

8762.04, Fla.Stat. 34,35

OTHER AUTHORITES

9.330, Fla.R.App.P. i8

9.330(a), Fla. R.App.P. 1

pet y Rn gp ~ Bn Criminal Law

Corpus for

State Prisoners,

76 Harvard Law Review, No.3 (1963) 27

= vii =

OPINIONS BELOW

The Petitioner's statement is

accepted.

STATEMENT OF JURISDICTION

it is submitted none of the

reviewing questicns upon which Parker

seeks certiorari review require further

review. Respondent would submit summary

affirmance is mandated or a

determination that certiorari review was

improvidently granted.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Petitioner's statement is

accepted. The Respondent would add the

following:

(1) This case involves’ the

application of 28 U.S.C. 82254, a copy

of which is attached.

(2) Florida Rule of appellate

Procedure 9.330(a) states, in relevant

part:

A motion for rehearing or

for clarification of

decision may be filed within

15 days of an order or

within such other time set

by the court. The motion

shall state with

particularity the points of

law or fact which the court

has overlooked or

misapprehended. The motion

shall not re-argue the

merits of the court's order.

A reply may be served within

10 days of service of the

motion.

STATEMENT OF THE CASE

Mr. Parker's statement of the facts

is not acceptable. Therefore, the

following pertinent facts are provided

to clarify those circumstances before

2

the Court. The Respondent relies upon

the facts as reported by the Eleventh

Circuit (J.A. 147, et.seq.), to-wit:

This case involves’ three

murders committed in Duval

County, Florida on February

6-7, 1982. Parker, then a

drug dealer, was known to

have a violent temper and to

possess several firearms.

The day the murders began,

Parker became irritated

because many of his

customers were not paying

their accounts. He decided

to reinforce his reputation

as a tough dealer and began

by throwing a rope over a

tree limb and threatening to

hang Tommy Groover, one of

his distributors, if the

4 Parker submits undisputed facts in his

brief which do not accurately reflect

the facts as discerned by the Court of

Appeals or reflect their full content

based on the trial record.

debts were not paid. The

next day Parker again

threatened to kill Groover

if he did not recover the

money. Taking Parker at his

word, Groover set out with

Billy Long, another of

Parker's acquaintances, to

collect some of the ‘debts.

They first stopped at a

local nightclub. There they

found Richard Padgett, who

was behind in his’ drug

debts, with his girlfriend

Nancy Sheppard. The two men

persuaded Padgett and

Sheppard to accompany them

to Parker's trailer, where

Parker and his ex-wife,

Elaine Parker, were waiting.

When the group arrived at

the trailer, Parker took

Padgett outside for a

‘discussion.' ~™A-—shot was

fired. When the two came

back inside, Parker had a

pistol in his belt.

Sheppard became alarmed and

offered her necklace and

ring to Parker as payment

for Padgett's debt. Parker

refused Sheppard's offer;

instead, Long drove her

home. The rest of the group

accompanied Padgett as he

tried to collect money to

pay his debt. -~=When he was

unsuccessful, Padgett was

taken to a junkyard owned by

Parker's father. At the

junkyard, Groover beat

oe @ @

Padgett. Thereafter, the

group drove to a_ secluded

rural area. The three men

exited the car and Padgett

fell to his knees and begged

for mercy. With Parker's

aid, Groover shot Padgett to

death and Parker and Groover

threw his body in a ditch.

Parker, Groover, and Elaine

cleaned up at the junkyard

and drove to a bar where

they met Jody Dalton,

Groover's former girlfriend.

Ms. Dalton decided to

accompany them. The group

first stopped to throw the

murder weapon into a river.

Dalton witnessed this act.

Next, they returned to

Parker's trailer and dropped

Dalton off while the rest of

the group drove to the

residence of Joan Bennett.

When they returned with Ms.

Bennett, Parker became angry

because Dalton had used some

of his drugs without his

permission. Parker and

Groover decided to ‘get rid'

of Dalton and drove the

entire group to an area

known as Donut Lake. There

Dalton was stripped,

taunted, beaten, and kicked

as she begged for mercy.

Groover, again with Parker's

aid, shot Dalton to death.

The two men tied up her body

with rope and concrete

blocks and threw it~ into the

lake.

During the trip back, Parker

and Groover discussed

killing Bennett because he

had witnessed the Dalton

murder. Elaine convinced

the two men that’ Bennett

could be trusted and they

drove Bennett home. The

three concluded, however,

that Sheppard could § link

them to Padgett's murder and

decided to kill her. They

first found Long, who

directed them to Sheppard's

home. Elaine then tricked

Sheppard into accompanying

the group by telling her

that Padgett was ‘high' and

wanted to see her.

The group soon arrived at

the scene of the Padgett

murder. Parker took Long to

the ditch and asked him if

he knew what was going on.

When he replied that he did

not, Parker told him that

‘either you kill Nancy or I

will kill you.' Next,

Parker took Sheppard to the

ditch. Upon seeing

Padgett's body, she fell to

the ground and exclaimed

‘Oh, my God!' Elaine handed

Long a pistol and said, ‘You

better do it or he'll kill

you too.' Long took the

pistol and shot Sheppard in

the head. Parker and

Groover screamed, ‘Shoot her

again, she's still

———

breathing. ' Long shot her

twice more. Parker then cut

her throat with a knife and

took her necklace and ring.

Additional factual averments require

clarification.

Groover was collecting drug debts

specifically so he could pay money to

Parker. (J.A. 148).

When Groover shot Jody Dalton, he

(Parker) shouted "What are you doing you

crazy m f ?". This comment,

however, taken in context, was an

expression of concern by Parker over the

noise being made by Groover (and the

danger they would get caught), not

concern over the fate of Ms. Dalton.

After Elaine Parker lured Nancy into

their car, Parker told Nancy that

Richard Padgett wanted to see her. When

they arrived at the murder scene, Parker

asked Long if he knew what was going to

happen. When Long said he did not,

Parker laughed and told Long that he

would soon find out. Parker, who had

previously shot Long and thus scared

him, ordered Long to shoot Nancy or get

killed along with her. Long shot Nancy

and then Parker personally slit Nancy's

throat. Parker then took Nancy's ring

and necklace. Parker also cleaned off

the knife.

Mr. Parker raises four specific

issues, the facts relevant to each being

as follows:

Facts: Issue I

The issue addressed by the Eleventh

Circuit was not the propriety of the

Florida Supreme Court's override

decision but, rather, whether a federal

district court judge could substitute

his own sentencing override decision for

that of the state courts (J.A. 157).

The court held:

The district court decision

suggests that its grant of

relief was influenced by

dissatisfaction with the

Florida Supreme Court's

application of the Tedder

standard to the facts in

this case. Spaziano warns,

however, that federal review

for the arbitrary or

discriminatory imposition of

the death penalty must not

devolve into second guessing

the Florida courts on

questions of state law,

particularly on whether the

trial judge complied with

<he mandates of Tedder.

In sentencing Parker to death for the

Sheppard murder, the trial judge

considered all statutory and non-

statutory mitigating evidence (J.A.

158). The judge found no mitigating

circumstances but found the following

aggravating factors:

(1) Parker's prior conviction for

a violent felony.

(2) The murder was committed

during a robbery.

(3) The murder was committed to

avoid arrest.

(4) The murder was committed for

pecuniary gain.

(5) The murder was. heinous,

atrocious and cruel.

(6) The murder was cold,

calculated and premeditated.

In upholding the trial court's

override after careful review pursuant

to the state law standards of Tedder v.

State, 322 So.2d 908 (Fla. 1975), the

Florida Supreme Court struck factors (2)

the murder was committed during a

robbery, and (5) the murder was heinous,

atrocious and cruel.

The mitigation offered by Parker was:

(1) Parker's mother testified

that Parker had a normal childhood, he

was the baby of the family, and that he

was spoiled. The family was close knit.

= Mt =

Parker's father drank but was never mean

to the children, and left any discipline

to her. She also testified that Parker

was using dope by the time he was

fifteen, and that Parker broke her arm

when she tried to stop him from fighting

with his brother.

(2) Parker's grandmother also

testified to his normal childhood.

(3) Parker's sister testified

that Parker caused his mother a lot of

trouble once he began abusing drugs and

had to be placed in a juvenile home.

(4) Parker offered two other

character witnesses and an evangelist's

testimony that Parker "found God".

(5) Parker offered evidence of

Groover's death sentences for killing

Padgett and Dalton.

The state courts did not specifically

address the specifics of this non-

e BB «

statutory mitigation but, the Eleventh

Circuit addressed this evidence by

noting that the weight to be afforded

this evidence was a state court decision

and that mere silence would not be

interpreted as a failure to consider the

evidence. (J.A. 159-160).

Facts: Issue II

During trial, Parker requested a jury

instruction on the "independent

intervening act" defense to felony

murder. The trial court did not grant

the request but gave standard jury

instructions on felony murder which

substantially covered the subject.

On direct appeal, Parker modified his

argument to suggest that he was "not

allowed" to argue certain defenses to

the jury due to the court's rejection of

his instructions. The Florida Supreme

Court disposed of the issue by finding

» 88 «

the lack of record evidence supporting

any "independent act” instruction. (J.A.

66).

Parker moved for rehearing, including

in his motion a de novo allegation that

the evidence of felony murder was

insufficient, stating:

This Court, in page 6 of its

own opinion, ruled that there

was no felony involved in the

Sheppard murder and struck

felony murder as an

aggravating circumstance.

The lower court was therefore

incorrect in instructing the

jury on felony murder.

(J.A. 62).

The Florida Supreme Court denied

rehearing in a summary order without

issuing a written opinion. (J.A. 867).

When Mr. Parker filed his habeas

corpus petition in federal court, the

argument regarding the "failure" to give

the requested jury instruction on

"independent act” was transformed into a

s 13 =

claim that the evidence at trial was

"insufficient" to support a felony

murder instruction. To overcome the

application of procedural bar to this

claim, Parker argued:

The fact that the defendant

was convicted based upon

erroneous jury instructions

that were uns rted by the

evidence, and the contention

that this violated due

process, were clearly raised

in the Defendant's Motion

for Rehearing in the Florida

Supreme Court. This was an

issue that could not have

been raised earlier because

it was not ripe for review

until the Florida Supreie

Court issued its opinion

finding the evidence of the

felony murder aggravating

circumstances was insuf=

ficient.

The federal district court found

Parker's claim to be procedurally barred

(J:A. 103).

Parker appealed to the Eleventh

Circuit, but again mutated his claim

into the argument that his "felony

= 14 =<

murder conviction" was erroneous under

Stromberg v. California, 283 U.S. 359

(1931).

The Eleventh Circuit noted that the

"Stromberg" approach was for argued at

trial, on appeal, or even in the federal

district court (J:A. 162). To the

extent that the felony murder issue in

general was being argued, the court

relied on Parker's admission that he did

not raise the issue until he filed for

rehearing in the Florida Supreme Court

(J.A. 163), and determined the claim was

procedurally barred (J.A. 163).

Facts: Issue If

Although "duress" is not a defense to

murder in Florida, Parker requested a

"duress" instruction at the close of

trial. Parker provided no relevant

legal authority for his request, and his

request was denied.

= 1§ =<

The Eleventh Circuit noted that

Parker was prosecuted under a

premeditated murder theory as well as a

felony murder theory (J.A. 167). The

Eleventh Circuit found that Parker's

"duress" instruction was misleading

because it implied that duress was also

a defense to premeditated murder (J.A.

167). Thus, the Eleventh Circuit said,

the trial court did not err by refusing

to give an incorrect instruction (J.A.

167).

Facts: Issue IV

The trial court interrupted the

State's cross-examination of Parker due

to the arrival of the jury's supper.

Parker took advantage of this break to

confer with his attorney. The State

questioned Parker as to what’ was

discussed with his counsel during the

break. Defense counsel objected to this

— i

inquiry. Parker's counsel had

questioned State witnesses in the same

manner.

Collateral relief was denied by the

lower federal courts on the authority of

Geders v. United States, 425 U.S. 80

(1976). On appeal, the Eleventh Circuit

upheld the district court with a single

citation to Geders. (J.A. 169-170).

a Mie

SUMMARY OF ARGUMENT

It is submitted that’ certiorari

review may have been improvidently

granted to review procedurally barred

claims and issues of state, rather than

federal, law.

Regarding Mr. Parker's first point,

the Respondent submits that the Eleventh

Circuit did not err in following the

dictates of Spaziano v. Florida, 468

U.S. 447 (1984). Federal courts, even

if convinced that a state has misapplied

its own law in passing sentence, simply

lack the authority to substitute their

own sentencing decisions for those of

the state courts. Lewis v. Jeffers,

___—sULS. __, 111 L.Ed.2d 606 (1990);

Barclay v. Florida, 463 U.S. 939 (1983).

Mr. Parker's second issue seeks

federal abolition of Fla.R.App.P. 9.330,

which precludes appellants from arguing

“- eo

issues in a motion for rehearing which

were not raised on appeal. Mr. Parker

cannot support his request with any

relevant law.

The third issue is a request for this

Court to recognize "duress" as a defense

to murder in the state of Florida, thus

compelling jury instructions on _ said

defense. Again, Parker offers no

support for the proposition that

certiorari should be used to this end.

The fourth issue seeks reversal of

this Court's controlling decisions in

Geders v. United States, 425 U.S. 80

(1976), and Perry v. Leeke, 488 U.S.

__, 109 §.Ct. 594, 102 L.Ed.2d 624

(1989), apparently under a theory that

the State does not have the right to

cross examine a witness, including a

defendant, on the issue of "coaching".

» St «

ARGUMENT

ISSUE I

THE FLORIDA SUPREME COURT'S

"TEDDER RULE" FOR REVIEWING

JURY OVERRIDE DEATH

SENTENCES IS A RULE OF STATE

LAW NOT SUBJECT TO FEDERAL

REAPPLICATION

The Petitioner, Robert Parker,

contends that Eighth Amendment '= and

generai due process concerns require

federal courts to resentence- state

prisoners whenever they detect a

misapplication of state law by said

state courts. Since Mr. Parker's

position is completely at odds with

established decisional law governing

§2254 litigation, it is submitted he

cannot prevail.°

3 Parker's brief includes a de novo

Claim of misapplication of Florida's

"Elledge Rule" (governing cases where

non-statutory aggravating factors are

relied upon). Elledge v. State, 346

So.2d 998 (Fla. 1977). No such error

occurred in this case. Moreover,

misapplication of Elledge would not

=

The idea that federal judges either

can or should resentence state prisoners

under their own personal interpretation

of state law was rejected in Gryger v.

Burke, 334 U.S. 728, 731 (1948). In

refusing to reapply Pennsylvania law,

this Court said:

It is neither clear that the

sentencing court sO

construed the statute, nor

if he did that we are

empowered to pronounce it an

error of Pennsylvania law.

And in any event it is

for the Pennsylvania courts

to say under its law what

duty or discretion the court

may have had. Nothing in

the record impeaches’ the

fairness and temperateness

with which the trial judge

approached his task. His

action has been affirmed by

the highest court of the

Commonwealth. We are not at

liberty to conjecture that

compel relief. Barclay v. Florida, 463

U.S. 939 (1983). Parker's citation to

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

is misplaced, since Dobbert only

reviewed the "ex post facto" application

of Florida law.

=

the trial court acted under

an interpretation of the

state law different from

that which we might adopt

and then set our own

interpretation as a basis

for declaring that due

process has been denied. We

cannot treat a mere error of

state law, if one occurred,

as a denial of due process;

otherwise, every decision by

a state court on state law

would come here, as a

federal constitutional

question.

This principle was carried forward in

Lewis v. Jeffers, 497 U.S. __, lll

L.Ed.2d 606, 623, 624 (1990), where the

Court, after quoting the admonition in

Godfrey v. Georgia, 446 U.S. 420, 450

(1980), that federal courts should not

"peer majestically over the [state]

court's shoulder so that [they] mighty

second guess its interpretation of facts

.", held:

Moreover, a federal court

should adhere to the Jackson

standard even when reviewing

the decision of ae state

appellate court that _ had

e a

cet ie cme LDL AD ES

ae a Om

In Spaziano v. Florida,

independently reviewed the

evidence, for the underlying

question remains the same:

If a State's aggravating

circumstances adequately

perform their constitutional

function, then a state

court's application of those

circumstances raises, apart

from due process and Eighth

Amendment concerns, only a

question of the proper

application of state law. A

state court's finding of an

aggravating circumstance in

a particular case --

including a de novo finding

by an appellate court that a

particular offense is

“especially heinous .. . or

depraved" -- is arbitrary or

capricious if and only if no

.easonable sentencer could

have so concluded. Indeed,

respondent agrees that "a

state court's ‘especially

heinous . . . or depraved'

finding, insofar as it is a

matter of state law, is

reviewable by the federal

courts only under the

‘rational factfinder' rule

of Jackson v. Virginia."

Brief for Respondent 95-96

(emphasis added; footnote

omitted).

constitutionality of Florida's

—

468 U.S.

446

(1984), this Court, after upholding the

jury

override procedure, absolutely refused

to grant to Spaziano any review of the

specific application of the "Tedder

Rule" in his case. As the court

recognized, jury sentencing is not

required by the Constitution, s0 any

decision to override a jury's non-

binding, non-constitutional sentencing

suggestion does not open the gates to

federal review. Hildwin v. Florida, 490

U.S. , 104 L.Ed.2d 728 (1989).

In this regard, it should be noted

Justice Scalia's concurring opinion in

Walton v. Arizona, 497 U.S. » baa

L.Ed.2d 511, 539 (1990):

Moreover, the Eighth

Amendment's prohibition is

directed against cruel and

unusual punishments. It

does not, by its terms,

regulate the procedures of

sentencing as opposed to the

substance of punishment. As

the Chief Justice has

observed, '[t]jhe prohibition

of the Eighth Amendment

relates to the character of

- 24 «

the punishment, and not to

the process by which it

imposed. ' Gardner Vv.

Plorida, 430 U.S. 349, 371

(1977) (Rehnquist, J.,

dissenting). Thus, the

procedural elements of a

sentencing scheme come

within the prohibition, if

at all, only when they are

of such a nature as

systematically to render the

infliction of a cruel

punishment ‘unusual’.

Applying this approach to Mr.

Parker's case, the records shows the

trial judge, as sentencer, weighed very

significant (statutory) aggravating

sentencing factors against de minimus

mitigating evidence. 4

The trial court's application of

Florida law was carefully reviewed by

4 Note Justice Scalia's concurrence in

Walton, supra. Unlike defendants who

Claim poverty or ill health as

"mitigation", Parker was a well-cared-

for (even spoiled) child who enjoyed a

normal childhood and who suffered from

no mental disorders. Parker's other

mitigation was that he had _ become

religious.

=— we

the Florida Supreme Court under its

judicially crafted "Tedder Rule". See

Tedder v. State, 322 So.2d 908 (Fla.

1975). The Florida Supreme Court found

that the facts supporting Parker's

sentence were indeed so clear and

convincing that no reasonable person

could differ. (J.A. 71). Thus, as

concluded in Spasziano, supra, the

Florida Supreme Court's constitutionally

acceptable review of capital cases was

accepted and the particularities of the

facts as to whether death was the

appropriate sentence must be left to the

Florida court to resolve as it did.

Nothing in this record requires a

retreat from Spasziano. Hildwin v.

Florida, 490 U.S. , 104 L.Ed.2d 728

(1989).

What Mr. Parker seeks i8 a major

expansion of §2254 at a time when

~~

Congress and this Court are calling for

restraint and reform.

The history of §2254, of course, has

been marked by repeated expressions of

support for the concepts of comity and

federalism. See Rose v. Lundy, 455 U.S.

509 (1962); Wainwright v. Sykes, 433

U.S. 72 (1977); Bngle v. Isaac, 456 U.S.

107 (1962).

Since 28 U.S.C. 82254 is merely a

statutory creation, it is limited by the

Constitution and cannot be applied in a

manner violative of any constitutional

provision. Schneckloth v. Bustamonte,

412 U.S. 218 (1972); Murray v.

Giarratano, _—s««wU.S. ___, 106 L.Bd.2d

1 (1989); Pennsylvania v. Finley, 4861

U.S. ___, 95 L.Bd.2d 539 (1967); see

also Bator, Finality in Criminal Law and

Federal Habeas Corpus for State

Prisoners, 76 Harvard Law Review, No. 3

(1963).

= 27 «

Parker does not challenge the

econstitutionality of Florida's jury

override “system” as unconstitutional

under the Bighth Aimendment. Indeed, he

confesses that its constitutionality has

been upheld. Pproeffitt v. Florida, 428

U.S. 242 (1976); Spasiano v. Florida,

466 U.S. 4446 (1984). Hildwin v:

Florida, 490 U.S. ___, 104 b.Bd.2a 728

(1986); Barclay Vv. Florida, 463 U.S. 939

(1983). His Complaint, similarly, does

not challenge the death penalty itself

or allege that it is "systematically"

misapplied. What Mr. Parker says is

that he disagrees with the Florida

Supreme Court's sustaining of his death

sentence on direct appeal, and he

demands federal resentencing, or a

second appeal, with the federal court

réapplying state law.

= 26 =

It is abundantly clear that Mr.

Parker's request is contrary to the

settied law governing the scope of 82254

review and, the Eleventh Circuit was

correct in recognizing this effort and

rejecting it as erroneous. Parker is

not entitled to relief. (J:A. 157=158).

= 36 =

ISSUE II

THE COURT OF APPEALS DID NOT

ERR IN HOLDING THAT

PETITIONER'S "STROMBERG"

CLAIM WAS PROCEDURALLY

BARRED

Mr. Parker strives mightily to create

the illusion that his "Stromberg" claim

was (1) either argued below and in state

court, or (2) was preserved in a de

facto sense by the Florida Supreme

Court.

Parker's argument on direct appeal to

the Florida Supreme Court went to the

denial of a jury instruction, not to the

concept of "felony murder" or "general

versus specific verdicts". On

rehearing, Parker briefly questioned the

sufficiency of the evidence, but again

he did not argue any even remotely

> Stromberg v. California, 283 U.S. 359

(1931).

« 2 «

fashioned Stromberg theory.°

On state

collateral attack, Parker did not raise

the issue at all. In federal district

court, Parker confessed chat he did not

raise the issue of "sufficiency of the

evidence" on direct appeal because he

never anticipated the issue. As for

"Stromberg", no mention of that case was

made in district court either. Since

Stromberg was not argued to the district

court, no ruling on the Stromberg issue

was entered there. The first references

to either Stromberg or its holding, came

in Parker's Eleventh Circuit brief.

Therefore, the circuit court's decision

is correct when it states that the issue

is barred for not having been raised.

(J.A. 162).

. See Fla.R.App.P. 9.330, (barring the

argument of new issues on rehearing).

o~Sttiia

To circumvent procedural bar

problems, Parker seeks refuge in the

allegation that the Florida Supreme

Court's review of the “entire record" in

capital cases means that the court both

conjures up and resolves all possible

legal (appellate) issues, thus

eliminating any subsequent problems with

procedural default. In “support” of

this untenable position, Parker cites to

Elledge v. State, 346 So.2d 998 (Fla.

1977). Parker ignores, however, Brown

v. State, 392 So.2d 1327, 1331 (Fla.

1981), which explained Elledge as

follows:

This Court's role after a

death sentence has_ been

imposed is "review", a

process qualitatively

different than "imposition".

It consists of two discreet

functions. First we

.determine if the jury and

judge acted with procedural

rectitude in applying

section 921.141 and our

caselaw . . . The second

— i

aspect of our review process

is to ensure relative

proportionality among death

sentences . . . Neither of

our sentence review

functions, it will be noted,

involves weighing or _ re-

evaluating the evidence.

Parker's "Stromberg" claim has

nothing to do with this analysis.

Instead, it is a challenge based upon

Stromberg's condemnation of general

verdicts in highly particularized

situations.

In Stromberg, a defendant was

convicted by general verdict of

violating a California law which

outlawed the flying of red flags as (1)

a political statement, oor (2) an

invitation to, or (3) stimulus to

"anarchistic action". Since (1) was an

absolute First Amendment right, it was

possible that the "general verdict"

convicted Stromberg of a

constitutionally protected act. Post-

o tt a

Stromberg cases also involved laws

governing multiple activities, some of

which were protected or not illegal.

In this case, Parker was convicted of

first degree murder. As the Florida

Supreme Court "has repeatedly

explained", Green v. State, 475 So.2d

235, 236 (Fla. 1985), there is only one

crime of "first degree murder". First

degree murder is the intentional killing

of a human being under = 8782.04,

Fla.Stat., and "intent" is proven by

showing either premeditation or _ the

commission of an enumerated felony.

Thus, Florida uses the concepts of

premeditation and felony-murder as

vehicles for proving the same crime,

first degree murder.

It is clear that a Stromberg

analysis, had one been performed, would

have answered the question of whether

— ee

either "form of murder" was a

constitutionally protected activity in

the negative.

The only arguable issue, abandoned by

Parker, was sufficiency of the evidence

under Jackson v. Virginia, supra.

Parker would base a Jackson claim on

the Florida Supreme Court's rejection of

a statutory aggravating factor during

review of his sentence. Here, again,

Parker misinterprets the facts.

The Florida Supreme Court rejected

the sentencing factor of "murder during

a robbery". That sentencing factor,

however, does not cover every kind of

"felony murder" or completely prohibit a

conviction for "felony murder” (to

borrow Parker's term). Under 8782.04,

Fla.Stat., felony murder would include

murders committed while engaged in

trafficking drugs or in kidnapping, two

— ve

crimes established here. Thus, the mere

rejection of "robbery" as an aggravating

sentencing factor does not mean that no

evidence (guilt phase) of "felony"

murder was on the record. ’

In sum, therefore, it is clear that

Parker's claim is not only procedurally

barred, it is devoid of legal or factual

merit.

The Eleventh Circuit, in declining to

review this claim "on the merits", due

to its procedurally barred status (J.A.

157, et.seq.), clearly did not err.

’ The sentencer may consider evidence of

any enumerated felony even if the

enumerated felony was not charged as a

distinct crime during the "guilt phase".

Ruffin v. State, 397 So.2d 277 (Fla.

1981); Brown v. State, 473 So.2d 1260

(Fla. 1985); Swafford v. State, 533

So.2d 270 (Fla. 1988). Also, Florida

law permits the finding of a felony

murder aggravating factor even if a

precise penalty phesce jury instruction

on the underlying felony is not given.

James v. State, 455 So.2d 786 (Fla.

1984).

o 2a

ISSUE III

THE PETITIONER Is NOT

ENTITLED TO FEDERAL CREATION

OF A "“DURESS"' DEFENSE TO

FIRST DEGREE MURDER FOR THE

STATE OF FLORIDA

The State of Florida stands as one of

the majority of jurisdictions which does

not recognize "duress" as a defense to

first degree murder. Even at common

law, "duress" was not recognized as a

valid defense.”

Mr. Parker's contention that Florida

recognizes "duress" as a defense to

first degree murder, if the theory of

the prosecution is "felony murder", is

simply not correct.

In Hawkins v. State, 436 So.2d 44

(Fla. 1983), the Florida Supreme Court

did not adopt the "duress" defense but

6 See LaFave, Substantive Criminal Law,

$5.3 (1986).

9 Id.

-_—

rather equated Hawkins' claim with the

"non-triggerman" defense of Enmund v.

State, 399 So.2d 1362 (Fla. 1981).

Hawkins, a voluntary participant in the

underlying crimes, could not allege

domination by codefendant Troedel .}9

In Parker's cited case of Wright v.

State, 402 So.2d 493 (Fla. 3rd DCA

1981), the lower appellate court

explicitly recognized the absence of a

"duress" defense to murder even though,

in a footnote citing a Michigan case,

the court questioned whether "duress"

could affect the intent to commit an

underlying felony which, in turn,

results in a murder. No opinion cn the

effect of this "two-step-removed

lessened intent" was given.

10 Troedel tried to claim domination by

Hawkins, which was also rejected.

Troedel v. State, 462 So.2d 392 (Fla.

1984).

—

;

|

In Chestnut v. State, 505 So.2d 1352

(Fla. lst DCA 1987), the cited

discussion appears in a “concurrence and

dissent" by a single judge, not in the

court's opinion. Even so, citing to

Cawthon v. State, 382 So.2d 796 (Fla.

lst DCA 1980), and to Wright v. State,

402 So.2d 493 (Fla. 3rd DCA 1981), the

judge agreed that duress is not a

recognized defense to murder in Florida.

Even though Judge Ervin was willing to

ponder "duress" as a defense to the

underlying felony, he wrote:

Nevertheless, I see no need

to decide whether the

defense of duress is

applicable to the offense of

felony-murder, because

appellant did not establish,

as a precondition to the

admissibility of such

defense, that the danger to

him was either imminent or

impending.

Supra, at 1354.

~~

Finally, in Goodwin v. State, 405

So.2d 170 (Fla. 1981), the approved

"duress" instruction related to a charge

of kidnapping, but not to murder. The

comment in the Goodwin opinion regarding

the "duress instruction" does not relate

to an instruction on the crime of

murder.

Since duress is not a defense to

premeditated or to felony murder in

Florida (an issue not decided by the

Eleventh Circuit), Parker was not

entitled to an instruction on

"duress",2/

a2 The Eleventh Circuit found that even

if Florida had a "duress" defense,

Parker's proposed instruction was poorly

drafted and appeared to set up duress as

a defense to premeditated murder as

well. Thus, notwithstanding Mr.

Parker's general "duress" issue, his

specific instruction was improper.

»s 4 «

¥

y

ISSUE IV

THE PETITIONER'S DUE PROCESS

RIGHTS WERE NOT VIOLATED BY

THE COURT'S DBCISION TO

ALLOW CROSS EXAMINATION ON

THE TOPIC OF "COACHING" BY

COUNSEL, DURING A RECESS

Parker states:

This Court has recognized

that under certain

circumstances a Defendant in

a criminal case has a Sixth

Amendment right to consult

with counsel during a recess

in his trial, even when he

is on the witness stand for

cross examination. Geders

v. U.S., 425 U.S. 80 (1975);

Perry v. Leeke, 109 S.Ct.

594 (1989).

Petitioner's Brief, p. 47.

In Geders v. United States, 425 U.S.

80 (1975), this Court dealt with a court

order prohibiting a defendant from

consulting with counsel during an

overnight recess called while the

witness was testifying. While declaring

that the defendant had the right to

counsel, this Court also held that the

» 41 «

State had the fight to Cross examine the

defendant on the issue of éeoaching.

Thus, Parker's reliance on Geders is

misplaced.

If Parker's reliance upon Geders is

misplaced, his citation to Perry v:

Leeke, 488 U.S. _—, 109 S.Ct. 594, 102

L.Bd.2d 624 (1989), i8 mystifying.

In Perry v. bLeeke, this Court held

that in a "Short recess" case, where the

defendant is on the witness stand (and

thus "just like any other witness"), the

defendant does not have the right to

confer with his lawyer. Perry contains

no restriction on cross examination. It

does make clear the fact that fio Sixth

Amendment rights are implicated in this

Situation.

Under Perry, therefore, Mr. Parker

actually received a benefit that the

trial court was not required to bestow}

= 43 «

Sa. PR as

TORRE IT iprety CAR UI

the chance to confer with defense

counsel during a short (supper) break in

his cross examination.

Mr. Parker suggests that government

counsel shotild be required to proffer

some evidence of "coaching" before being

allowed to cross examine on that issue.

The problem with that proposal is that

the State could never make such a

proffer because it has no access to

attorney-client communications and

cannot listen in on their conferences.

Perry recognizes the value of cross

examination in determining the truth in

criminal cases. Perry also recognizes

the State's right to conduct a

meaningful cross examination. A

defendant who takes the witness stand is

in the same position as any other

witness. If there is no right under the

Sixth Amendment to consult with counsel

= 43 =

during said testimony, then clearly

there is no Sixth Amendment violation

involved in permitting inquiry, on cross

examination, into any unprotected

consultation with counsel.

» £6 w

*

-

CONCLUSION

Mr. Parker has failed to establish

any basis for relief from either his

convictions or his’7~ sentences. The

opinion of the Eleventh Circuit should

be affirmed in all respects.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

CAROLYN M. SNURKOWSKI

Asst. Attorney General

MAPK C. MENSER

Asst. Attorney General

DEPT. OF LEGAL AFFAIRS

The Capitol

Tallahassee, Florida

32399-1050

(904) 488-0600

COUNSEL FOR RESPONDENT

~~