# Respondents Brief — Parker v. Dugger

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0481%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 308

## Text

=_
, 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
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

~~

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0481%3A08. Public record. Not legal advice.