Appendix — Robert Patten v. Florida

Supreme Court brief1985

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RECEIVED

S4-6§8 79 JUN 8 1985

OFFICE OF THE CLERK

SUPREME COURT, U.S

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

ROBERT PATTEN,

Petitioner,

Respondent.

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

° PETER M. SIEGEL, Esq.

RANDALL C. BERG, Jr., Es

FLORIDA JUSTICE INSTITUTE, INC.

1400 AmeriFirst Building

One Southeast Third Avenue

Miami, llorida 3313]

(305) 358-208]

Counsel for Petitioner

e Counsel to be served,

Member of the Bar of the Court.

EXHIBIT A

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NC So. 74

ROBERT PATTEN, Appellant ~SOssS-Appel lee e

vs.

STATE OF FLORIDA. Appeliee/Cross-Appel la

January i¢ i96s

RE es a:

OVERTON, J.

This is a dire:t *ppeal from Robert Patten's conviction of

first-degree murder and the ABposition of the death sentence

Appellant was also convicted of armed robbery and grand theft

and was found to have violated has probation for the offense of

auto theft. He was sentenced to 110 years for the robbery

conviction, five years for grand theft, and five years for auto

theft, all sentences to be served consecutively. We have

Jurisdiction, article V, section 3(b) (1), Florida Constitution,

and we affirm all of appellant's convictions and sentences with

the exception of the death sentence. We find that we must vacate

the death sentence and remand for a new sentencing proceeding

before a jury because the trial judge erroneously instructed the

jury that it should try to reach a majority verdict after tne

jury had advised the court it was deadlocked concerning its

Sentencing recommendation for the first-degree murder conviction.

The facts reflect that on September 2, 1981, the Victiz, a

Miami police officer, attempted to stop appellant for traveling

° the wrong way On & One-way street. Appellant abandoned his car,

which was later determined to have been stolen, and fled the

scene on foot. He ran down an alley with the officer in pursuit.

Witnesses heard guoshots and One® witness testified that appellant

had hidden in the alley and waited for the officer to approach

before shooting him. The officer was found dead with two bullet

wounds. One bullet had penetrated his heart, killing has

anstantly, and another hed entered the officer's foot in a manner

and.cating that the officer had been shot after he was dead and

lying prostrate.

Immediately after the shooting, appellant stole a car at

gunpoint and fled the area. Be was arrested later that day and

charged with first-degree @urder, armed robbery, grand theft, and

violation of probation. Two days later, after obtaining a search

warrant, the police recovered the murder weapon froa beneath a |

heating grate in *ppellant's grancmother's home. |

Prior to trial, the court end the prosecutor were apprised

of the facts that appellant had been adjudicated not guilty of

receiving stolen Property by reason of 4neaenity in 1978 and had

been involuntarily committed to the Department of Health and

Rehabilitative Services for treatment under the Provisions of

Section 394.467, Plorida Statutes (1977). On Septemper 25, 1981,

he trial court, on its own BOCiON Price to appellant's

arraignment, ordered an @valuation of the *ppellant “covering all

4seues including anganity and competency and incompetency to

stand trial." Prior to receiving the reports of the four experts

*ppointed to examine *ppellant, and prior to the hearing on

appellant's competency to stand trial, counsel for the appellagt

withdrew « pending motion for release on bail and Orally advised

the trial court that the Gefense would be filing a notice of

aAntent to rely on the Ansanity defense and would request a

hearing to determine if appellant was Mentally competent to Stand

trial. Counsel for 4ppellanc subsequently filed « notice of

antent to rely on the ansanity defense and a MOTiON requesting a

competency hearing.

The court-ordered competency hearing was held on October

9, 1981. Three of the appointed doctors testified before the

Court and the fourth doctor’s WELCCeS FTeport was submitted to the

Court by stipulation. During the course of these proceedings

_— = — ae eee « . -

the 1978 trial court order finds Sppe..ant not guilty by reasc

, rr 7 ’

of insanity and the Orcers conditionally f@.@48ing his were

edmitted isto evidence The trial court found 4h accordance

with the unaninous Opision of the experts. thar the appella was

competent to stand trial PUESuant to the criteria set forc>

Plorida Rule of Criminal Procedure } 211 The trial ure

proceeded to arraign the Sppes.ant and, when he stood sute

entered 4 plea of not gVssety om his bebals

In @ pre-trial SOot.on,. counsel for the éppellant soved *¢

& ruling on the Ansanity test to be Sppried at trial Appe ‘

@sserted that the trial Court should discard thro M'Nachte _«

and adopt the A.L.I Model Penal Code tes While ack wleds

that the appellant had S®*@5 @xaZined b&b ‘ a@Der :

PSychiatrists, all of whos AnG.catec that the accused was esa

sane uncer the M'Nachten rule Gefense counsel argued ths .

;

neo SERS 11)

M'N mten rule constituted both 4 denial of substantive «

po Mn S £2A SS Li)

procecural due process and Crue. and unusual pu sme The

trial court denied the Botion finding that ac ‘

fo change the criteria for the test for insan: at ad bee

Counsel for the Sppe+sanc also filed « pre-trial Bot. to

have the electronic media exc.uced from the courtroos Surang the

trial on the ground that their presence would affect the ability

of the appellast to consult with his counsel. The trial court

Genied the motion after comcuctiag «a hearing attended by the

state, the defense, and the media.

In the trial phase of the proceedings, the Gefense did not

contest that appellant had killed the PO.sice officer; the theory

of the defense was that appellant, in firing the shots, had acted

"in @ moment of panic” and that this tragic offense was not

premeditated murder. Further, no evidence Was submitted

regarding appellant's Prior adjudication of not guilty by reason

of insanity. The jury found the appellant guilty of all offenses

charged.

During the sentencing phase of the trial, the state

initially presented evidence in aggravation that appellant had

been convicted of robbery in 1975. The defense then presented

the testimony of two Psychologists to establish the statutory

Mitigating circumstances that the murder was committed while

appellant was “under the influence of extreme mental or emotional

Gisturbance,* section 921.141(6)(b), Florida Statutes (1981), and

that the “capacity of defendant to appreciate the criminality of

his conduct or to conform his conduct to th requirements of law

was substantially impaired,” section 921.141(6)(£). Both

psychologists testified that these factors clearly applied to

appellant. In addition to these conclusions, one psychologist

Gescribed at length appellant's background and upbringing,

including the fact that his mother had substantial mental

problems, which resulted in her commitment; that he was an

unwanted child; that he had suffered severe physical abuse, |

including being spit upon and thrown against the wall; that his

father died when he was two years old; that, when appellant was

Six years old, it was discovered that he suffered from a

degenerative bone disease which required his to spend @ year ina

body cast, during which time he continued to suffer physical

abuse at the hands of his mother: that his leg was broken two

Gays afcer the removal of his body cast and he was forced back

anto the body cast for more than @ight gwonths; that after

returning to school his conduct required expulsion; that at ege

ten he was diagnosed as emotionally disturbed and another

Giagnosis recommended hospitalization; that his mother used

choking as a disciplinary device; and that he began using drugs

#t an early age and suffered barbiturate overdose at the age of

fourteen. The history of the 1976 stolen property offense, his

Commitzent a8 a result of being incompetent to Stand trial, his

acquittal on the charges by reason of anganity, and the resulting

treatment were also presented to the jury. In rebuttal, the

-4-

state presented the testizony of two P¥ychiatrists who had

examined appellant for competency tc stand trial and anganity at

the time of the offense. Both psychiatrists testified that

4ppellant was able to conform his conduct to the requirements of

law and both reflected an opinion that he was trying to fake

Mental illness.

Ouring Sentencing deliberations, the jury advised the

trial judge that Shey were deadlocked Six-to-six with regard to «

recommended sentence. The judge instructed the jury:

If you can agree on @ majority to either life or

death, without trying to pressure you, by talking it

over one more time and agreeing one way or another,

anc I's not Suggesting any resulc, but if after

trying one sore time you can't agree and it's still

8ix/six, I will instruct you to go ahead and sign

hat verdict form that includes life imprisonment

wathout parole for 25 years.

The jury, after continued deliberations, returned with a

seven-to-five recommendation for death.

The trial judge imposed the death Sentence and found that

the following statutory aggravating factors applied: (1)

appellant had previously been convicted of a felony involving the

use or threat of viclence; (2) the murder was committed to avoid

@ lawful arrest; and (3) the murder was committed in a cold,

calculated, and premecitated manner without any pretense of moral

Or legal justification. In finding that there were nO @itigating

circumstances, the trial court expressly rejected the evidence

presented by the appellant to prove that he had suffered from an

extreme emotional or sental Gisturbance at the tame of the

homicide and that appellant's Capacity to appreciate the

criminality of his conduct was substantially A@pairecd. The trial

Court recognized that the testigzony of the experts for the state

and for the defendant was "in direct contradiction® and expressly

found that it should accept the testimony of the state's

witnesses. The trial Jucge concluded that there were no

Statutory ofr nonstatutory Mitigating factors *ppiicable tc this

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Guilt Phase

In his first poinc, appellant argues that his prior

adjudication of not guilty by reason of ansanity and his

subsequent civil commitment require the state to present evidence

to establish his Sanity 43 an element of the offense even though

appellant failed to offer any evidence of the ansanity defense at

trial. Counsel for appellant advised the court orally, after the

court had appointed doctors to examine appellant but before the

examinations were complete, that she planned to file a notice of

antent to rely on the defense of insanity. Counsel subsequently

filed a notice of 4ntent to rely on the Ansanity defense. After

all four court-appointed experts found appellant competent to

stand trial anc competent at the tame of the offense under the

state's modified M'Nachren test, counsel did not #ttemzpt to

affirmatively assert the defense of insanity under that test. ta

Our view, this was not an inadvertent omission by counsel.

Pacing the obvious Amprobability of « Successful insanity defense

under these circumstances, counsel instead sought to have the

trial judge reject the modified M'Nachten test and adopt the

broader criteria contained in the American Law Institute's Model

Penal Code, including the “irresistible impulse” test. This

Court has expressly rejected that POrtion of the A.L.I. insanity

test that the “appellant requested the trial court to accept. ee

Mines v. State, 390 So. 26 332 (Fla. 1960); In re Standard Jury

Instructions in Criminal Cases, 327 So. 24 6 (Fla. 1976). The

Crateria adopted by this Court for insanity at the time of the

offense are as follows: °

The law does not hold « person

Criminally accountable for his conduct

while insane, since an 4384N@ person is not

Capable of forming the AMTONt essential to

the COmmission of a crime. A person is

Sane and responsible for his crime if he

has sufficicne mental capacity when the

crime is com ted to understand what he is

Going asd <o ‘NGerstand that his act is

wrong. If at the tine of an alleged crizne

& dGefendant was Sy Feason of sental

@6<

ieee ene a ct ec il i ii a a i a ra i ie "edi ee ceereemermed

infirmity, disease or Gefect unable to

understand the mature and quality of his

act OF its consequences or, if he did

understand it, was incapable of

distinguishing that which is right from

that which is wrong, he was legally insane

and should be found MOC guilty by reason of

Insanity may be permanent, temporary,

OF Bay come and go. ...

Onrestrained P4ssion or Ungovernable

temper is not AnSanity, even though the

norzal judgment of the person may be

overcome by passion or temper.

Pla. Std. Jury tInser. Cris. Cases, 2.12(b)-1 (Ss. ce. Comm. 1976).

See also Fla. Std. Jury Instr. Cris. Cases 3.04(b) (S$. Ct. Com.

1982).

We stated in Wheeler vy. State, 344 So. 24 244, 246 (Pla.

1977), that this “jury instruction on ansanity correctly states

the law of Florida,* and we directed that “it Shall be utilized

an ail trials* after the Gate that opinion became final. In

Wheeler, we explained that we had declined “to adopt the

so-called ‘irresistible impulse’ portion of the A.L.I. test whic

excuses from criminal responsibility the Gefendant who ‘lacks

Sudstantial Capacity... to conform his conduct to the

requirement of the law,'* @lthough we did adopt the “'disease or

defects element’ of the A.L.r. test.*+ ig. The trial courc

Properly denied appellant's motion.

The position of the *ppellant, that the state in this

cause had the initial burcen of Proving sanity, is neither

logical nor Feasonable. If we acopted appellant's POSition, the

state would have been obligated to Present the four expert

witnesses who would have Sestilied that appellant was sane at the

time of- the offense and, 48 80 doing, they would have necessarily

related the history of his Prior Criminal convictions and his

commitzent for PSychiatric problems. The production of this

evicence by the state in 40S case in chief would be mandated

uncer appellant's argument, even thouch the appellant had not

r | .

1. The Florida Standard for determining a defendant's

oOmpetency to stand trial is essentially iden pA. tO the newly

adopted A.B.A. Craminal Justice Me andard 7-6.1,

A-B.A. Standards fo Cr:s3nal Justice (2d ed. 19864

placed his Sanity in issue at the trial and the State's evidence

of sanity would be Prejudicial to the “appellant. lt is important

to recognize that ABSenity is an af*irnative defense in thas

state and @ defendant has the burden of coming forward and

presenting some evidence of ansanity at trial. Under this

Process, once a defendant Presents e idence of insanity, the

Prosecution has the burden of @isproving Gefendant’s clain beyond

& reasonable doubt, * The argument that the appellant's prior

adjudication of MOt guilty by reason of insanity and his

Aavolustary civil commitment require the state to prove

competency is correct only when the Gefense of insanity is

@sserted and *vicence of the adjudication and COmMMitmenc is

Antroduced at trial. In this case the defense of ANSaDity was

MOt 48serted, nor was the evidence of appellant's prior

adjudication or Commitment offered #t trial. The reason for this

43 clear in the fecord. The @ppellant had no *®xperts to testify

#8 to his insanity. The state hed four witnesses who concluded

he was sane and Cwo went further and stated thac he was faking

mental illness. The reason and logic for MOC aSs8erting the

Gefense of ansanity is clear. We find no merit a" 4ppellant'’s

argument.

Appellant's second point alleges thac She trial coure

erroneously denied *ppellant’s mort “© exclude the @iectronic

media, *ppellanc’s Fequest for an evic TY hearing, and

*ppellantc's request for the *ppoictment « POETS ON this issue.

The trial court held « hearing on the Setion during which the

*ppellant, the state. and the media were present. The trial

COUT determined that the facts set forth is the @ction, if

Proven, would not justify the entry of « FeStrictive erder and

¢id not seet the criteria set forth in Our decisions in State v

A+ 1 BE

Green, 395 So. 24 $32 (Pla. 1961), and tn Fe Post-Newsweex

Stations. Florida. Inc... 370 So. 24 764 (Pla. 1979). We agree.

2. This procedure is in

Justice Mental Health Standard

Criminal Justice (24 ed. 1984

See also State v. Palz Besc> Newscapers. Inc., 395 So. 24 $44

(Pla. 1981).

he thard issue raised by appellant concerns the failure

of the trial court to Suppress the introduction into evidence of

the gun used to kill the police officer which was seized fron

underneath a heating grate in the appellant's grandmother's

house. Appellant contends thac th affidavit in Support of the

‘

—

Search warrant was insufficient to establish probab

Gisagree. The affidavit was sufficient to establish probable

cause and tne trial court properly denied the motion tc suppress.

peliant’s fourth point concerns rulings involving the

exercise of the trial court's discretion. We find that the

recoré does not demonstrate any abuse of discretion. See

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

We have previously re

@+.e9@8 @rror in the denial of an evicentiary hearing on the

Aseue of whother a Geath~qualified jury i8 also @ guilt-prone

jury vobbert v.§ State, 409 So. 24 1053 (Fla. 1982 We refuse

Geach or life sentence. in Rose v. State, 425 So

recommendation because, if seven > "ors do

BOt vote to recommend death, then

recommendation is life A@prisonmen:. There

Was DO reason to give the “Allen charge”

during the penalty phase of the trial. We

therefore vacate the Geath sentence and

hold that defendant 43 entitled to a new

sentencing proceeding before a jury.

Id. at $25. We find no logical distinction between the instant

case and our Rose decision and hold that the case Must be

remanded for a new Sentencing hearing. We do not find it

*ppropriate to treat the Jury recommendation as a life

recommendation and the trial judge's sentence as «4 jury override,

#2 urged by the state. There was no life recommendation in this

case asd the trial court did mot, therefore, consider this

Significant factor in his Sentencing decision. To mow treat the

Jury recommencation as a life recommenda :ion and review

appellant's sentence withour the benefit -. «ne trial judge's

consideration and application of the Tedde. «4 ine’ wovid

——

fequire this Court to Mak@ aM agsumption as to what seutence the

trial judge would have imposed if the jury had actually returned

@ life recommendation. We decline to do so.

Accordingly, we affir= appellant's convictions and

sentences with the exception of the death sentence. We vacate

tue death sentence and remand tO the trial court for a new

Sentencing Proceeding before a jury. In view of the evidence

chat was presented during the sentencing Proceeding, we direct

the trial court's @ttention to the United States Supreme Court

Gecision in Eddines v. Oklahoma, 455 v0.5. 104 (1982), and its

Possible application to the facts of this case.

It is so ordered.

BOYD, <.J., ALDERMAN, MCDONALD, EERLICH and SHAW, JZ., Concur

ADKINS, J., Concurs is the Comviction, but dissents from the

sentence

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

ILED, DETERMINED.

4. Tedder v. State, 322 So. 24 908 (Fla. 1975).

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An Appeal and Cross-Appeal from the Circuit Court in and for

Dade County,

Thomas ©. Scott, Jr., Judge - Case No. 81-19702

William L Richey of

Peter M. Siegel and

for Appellant,

Jim Smith, Attorney General anc Calianne P. Lantz, Assistant

Attorney General, Miami,

* 1? Ce aT } “

for Appellee ~TOSS-Appellant

EXHIBIT B

Supreme Court of Florida

No. 61,945

ROBERT PATTEN, Appellant/Cross-Appellee,

vs.

STATE OF FLORIDA, Aprellee/Cross-Apcrellant.

“

(January 10,

OVERTON, J.

This is a direct appeal from Robert Patten's conviction of

first-degree murder and the imposition of the death sentence.

Appellant was also convicted of ermed robbery and grand theft,

and was tound to have violated his probation for the offense of

auto theft. He was sentenced to 110 years for the robbery

conviction, ‘ive years for grand theft, and five years for auto

theft, all sentences to be served consecutively. We have

jurisdiction, article V, section 3(b) (i), Florida Constitution,

and we affirm all of appellant's convictions and sentences with

the exception of the death sentence. We find that we must vacate

the death sentence and remand for a new sentencing proceeding

before a jury because the trial judge erroneously instructed the

jury that it should try to reach a majority verdict after the

jury had advised the court it was deadlocked concerning its

sentencing recommendation for the first-degree murder conviction.

The facts reflect that on September 2, 1981, the victis, a

Miami police officer, attempted to stop appellant for traveling

the wrong way On @ One-way street. Appellant abandoned his car,

which was later determined to have been stolun, and fled the

scene on foot. He ran down an alley with the officer in pursuit.

Witnesses heard gunshots and one witness testified that appellant

had hidden in the alley and waited for the officer to approach

before shooting him. The officer was found dead with two bullet

wounds. One bullct had penetrated his heart, killing hia

instantly, and another had entered the officer's foot in @ manner

indic**ing that the officer had been shot after he was dead and

lying prostrate.

Immediately after the shooting, appellant stole a car at

gunpoint and fled the area. He was arrested later that day and

charged with first-degree murder, armed roppery, grand theft, and

violation of probation. ‘Two days later, after obtaining @ search

warrant, the police recovered the murder weapon from beneath a

heating grate in appellant's grandmother's home.

Prior to trial, the court and the prosecutor were arprised

of the facts that appellant had been adjudicated not guilty of

receiving stolen property by reason of insanity in 1978 and had

been involuntarily committed to the Department of Bealth and

Rehabilitative Services for treatment under the provisions of

section 394.467, Florida Statutes (1977). on September 25, 1981,

the trial court, on its own motion prior to appellant's

arraignment, ordered an evaluation of the appellant "covering all

issues including insanity and competency and incompetency to

Stand trial.“ Prior to receiving the reports of the four experts

appointed to examine appellant, and prior to the hearing on

appellant's competency to stand trial, counsel for the appellant

withdrew a pending motion for release on bail and orally advised

the trial court that the defense would be filing a notice of

intent to rely on the insanity defense and would request a

hearing to determine if appellant was mentally competent to stand

trial. Counsel for appellant subsequently filed a written motion

requesting @ competency hwvaring.

The court-ordered competency hearing was held on October

9, 1981. Three of the appointed doctors testified before the

cvurt and the fourth doctor's written T@epeort was submitted to the

court by stipulation. During the course of these proceedings,

the 1978 trial court order finding appellant not guilty by reason

acmitced into evidence. The trial court found, in accordance

with the unanimous opinion of the experts, that the appellant was

competent to stand trial pursuant to the criteria set forsh in

Florida Rule of Criminal Procedure 3.211. The trial court

proceeded to arraign the appellant and, when he stood mute,

entered a plea of not guilty on his behalf.

In @ pre-trial motion, counsel for the appellant moved for

@ ruling on the insanity test to be appliec at trial. Arpellant

asserted that the trial court should discard the M'Nachten rule

and adopt the A.L.I. Model Penal Code test. While acknowledgin

that the appellant had been examined by @ number of

psychiatrists, all of whom indicated that the accused was legally

sane under the M'Naghten rule, defense counsel argued that the

M'Nachten rule constituted both a denial of substantive and

procedural due process and cruel and unusual punishment. The

trial court denied the motion, finding that it had no authority

to change the criteria for the test fer insanity that had been

Specifically adopted by the Supreme Cour: of Florida. No written

notice of intent to rely on the defense of insanity was ever

submitted to the court in accordance with Florida Rule of

Crisinal Procedure 3.216.

Counsel for the appellant also filed a pre-trial gotion to

nave the electronic media excluded from the courtroom during th

trial on the ground that their presence would affect the ability

of the appellant to consult with his counsel. The trial court

Genied the motion after conducting a hearing attended by the

state, the defense, and the media.

In the trial phase of the proceedings, the defense did not

contest that appellant had killed the police officer; the theory

of the defense was that appellant, in firing the shots, had acted

"in @ @Boment of panic” and that this tragic offense was not

premeditated murder. The jury found the appellant guilty of all

offenses charged.

During the sentencing phase of the trial, the state

initially presented evicence in aggravation that appellant had

been convicted of robbery in 1975. The defense then presented

the testimony of two psychologists to establish the statutory

@itigating circumstances that the murder was committed while

appellant was “under the influence of extreme mental or emotional

Gisturbance,” section 921.141(6)(b), Florida Statutes (1981), and

that the “capacity of defendant to appreciate the criminality of |

his conduct or to conform his conduct to the requirements of law

was substantially impaired,” section 921.141(6)(£). Both

psychologists testified that these factors clearly applied to

appellant. In addition to these conclusions, one psychologist

described et length appellant's background and upbringing,

including the fact that his mother had substantial mental

problems, which resulted in her commitment: that he was an

unwanted child; that he had suffered severe physical abuse,

including being spit upon and thrown against the wall; that his

father dciec when he was two years old; that, when appellant was

six years old, it was discovered that he suffered from a

Gegenerative bone disease which required him to spend a year in a

body cast, ¢uring which time he continued to suffer physical

abuse at the hands of his mother; that his leg was broken two

Gays after the removol of his body cast and he was forced back

into the body cast for more than eight months; that after

returning to school his conduct required expulsion; that at age

ten he was diagnosed as emotionally disturbed and another

diagnosis recommended hospitalization; that his mother used

choking as a disciplinary device; and that he began using drugs

at an early age and suffered a barbiturate overdose at the age of

fourteen. The history of the 1976 stolen property offense, his

commitment as a result of being incompetent to stand trial, his

acquittal on the charges by reason of insanity, and the resultins

treatment were also presented to the jury. In rebuttal, the

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state presented the testimony of two psychiatrists who had

examined appellant for competency to stand trial and insanity at

the time of the offense. Both psychiatrists testified that

appellant was able to conform his conduct to the requirements of

law and both reflected an opinicn that he was trying to fake

mental iliness.

ring sentencing deliberations, the jury advised the

trial judge that they were deadlocked six-to-six with regard to a

recommended sentence. The judge instructed the jury:

If you can agree on a majority to either life or

death, without trying to pressure you, by talking it

over one more tire and agreeing one way or another,

and I'm not suggesting any result, but if after

trying one more time you can't agree and it's still

gix/six, I will instruct you to go ahead and sign

that verdict forms that includes life imprisonrent

without parole for 25 years.

The jury, after continued deliberations, returned with a

seven-to-five recommendation for death.

The trial judge imposed the death sentence and found that

the following statutory aggravating factors applied: (1)

appellant had previously been convicted of a felony involving the

use or threat of violence; (2) the murder was committed to avoic

@ lawful arrest; and (3) the murder was committed in a cold,

calculated, and premeditated manner without any pretense of moral

or legal justification. In finding that there were no mitigating

circumstances, the trial court expressly rejected the evidence

presented by the appellant to prove that he had suffered from an

extreme emotional or mental disturbance at the time of the

homicide and that appellan=c's capacity to appreciate the

criminality of his conduct was subst:ntially impaired. The triai

court recognized that the testimony o. the experts for the state

and for the defendant was “in direct con*radiction® and expressly

found that it should accept the testimony «. the state's

witnesses. The trial judge concluded that there were no

statutory Or nonstatutory mitigating factors applicable to this

case.

Guilt Phase

In his first point, appellant argues that his prior

adjudication of not guilty by reason of insanity and his

subsequent civil commitment require the state to present evidence

to establish his sanity as an element of the offense even though

appellant failed to file a written notice of intent to claim

insanity as a defense and failed to offer any evidence of that

defense st trial. Florida Rule of Criminal Procedure 3.211

requires a defendant to file in writing a notice of intent to

rely on the defense of insanity. Counsel for appellant advised

the court orally, after the court had appointed doctors to

examine appellant but before the examinaticns were complete, that

she planned to file a notice of intent to rely on the defense of

insanity. After all four court-appointed experts found appellant

competent to stand trial and competent at the time of the offense

under the state's modified M'Nachten test, however, counsel did

mot attempt to assert the defense of insanity under that test.

This was not an inadvertent omission by counsel. Facing the

obvious inmprobability of a successful insanity defense under

these circumstances, counsel sought to have the trial judge

reject the modified M'Nachten test and adopt the broader criteria

contained in the Americas Law institute's Model Penal Code,

including the “irresistible impulse” test. This Cours has

expressly rejected that portion of the A.L.I. insanity test that

the appellant requested the trial court to accept. See Mines v.

State, 390 Sc. 24 332 (Fla. 1980); In re Standard Jury

Instructions in Criminal Cases, 327 So. 2d 6 (Fla. 1976).

The criteria adopted by this Court for insanity at the

time of the offense are as follows:

The law does not hold a person

criminally accountable for his conduct

while insane, since an insane perron is not

capable of forming the intent essential to

the commission of a crime. A person is

sane and responsible for his crize if he

has sufficient mental capacity when the

crime is committed to understand what he is

doing and to understand that his act is

wrong. If at the time of an alieged crime

a defendant was by reason of mental

-6-

infirmity, disease or defect unable to

understand the nature and quality of his

act or its consequences or, if he did

understand it, was incapabie of

distinguishing that which is right from

that which is wrong, he was legally insane

and should be found not guilty by reason of

insanity. °

Insanity may be permanent, temporary,

or may come and go.

Unrestrained passion or ungovernable

temper is not insanity, even though the

normal judgment of the person may be

overcome by passion or temper.

Fla. Sté. Jury Instr. Crim. Cases, 2.11(b)-1 (S$. Ct. Comm. 1976).

See also Fla. Std. Jury Instr. Crim. Cases 3.04(b) (S$. Ct. Com.

1982).

We stated in Wheeler v. State, 344 So. 24 244, 246 (Fla.

1977), that this “jury instruction on insanity correctly states

the law of Florida,” and we directed that “it shall be utilized

in all trials* after the date that opinion became final. In

Wheeler, we explained that we had declined “to adopt the

so-called ‘irresistible impulse’ portion of the A.L.I. test which

excuses from criminel responsibility the defendant who ‘lacks

substantial capacity .. . to conform his conduct to the

requirement of the law, lthough we did adopt the “‘disease or

defects element’ of the A.L.!. test.**

Id. The trial court

properly denied appellant's motion.

The position of the appellant, that the state in this

cause had the initial burden of proving sanity, is neither

logical nor reasonable. If we adopted appellant's position, the

state would have been obligated to present the four expert

witnesses who would have testified that appellant was sane at the

time of the offense and, in so doing, they would have necessarily

related the history of his prior criminal convictions and his

commitment for psychiatric problems. The production of this

evidence by tne state in its case in chief would be mandated

under appellant's argument, even though the appellant had not

l. The Florida standard for determining a defendant's

competency to stand trial is essentially identical to the newly

adopted A.B.A. Criminal Justice Mental Health Standard 7-6.1,

A.B.A. Standards for Criminal Justice (2d ed. 1984).

eJeo

placed his sanity in issue at the trial and the state's evidence

of sanity would be prejudicial to the appellant. It is important

to recognize that insanity is an affirmative defense in this

state and a defendant has =he burden of coming forward and

presenting some evidence of insanity at trial. Under this

process, once a defendant presents evidence of insanity, the

prosecution has the burden of disproving defendant's clainz beyond

a reasonable doubt. * The argument that the appellant's prior

adjudication of not guilty by reason of insanity and his

involuntary civil commitment require the state to prove

competency is correct only when the defense of insanity is

asserzed and evidence of the adjudication and commitment is

introduced at trial. In this case the defense of insanity was

mot asserted, nor was the evidence of appellant's prior

adjudication or commitment offered at trial. The reason for this

is clear in the record. The appellant had no experts to testify

as to his insanity. The state had four witnesses who concluded

he was sane and two went further and stated that he was faking

mental illness. The reason and logic for not asserting the

defense of insanity is clear. We find no merit in appellant's

argument.

Appellant's second point alleges that the trial court

errcnecusly denied appellant's motion to exclude the electronic

media, appellant's request for an evidentiary hearing, and

appellant's request for the appointment of experts on this issue.

The trial court held a hearing on the motion, during which the

appellant, the state, and the media were present. The trial

court determined that the facts set forth in the motion, if

proven, would not justify the entry of a restrictive order and

did not meet the criteria set forth in our decisions in State v.

Green, 395 So. 26 532 (Fla. 1981), and In re Post-Newsweek

Stations. Florida, Inc., 370 So. 24 764 (Fla. 1979). We agree.

2. This procedure is in accordance with A.B.A. Criminal

Justice Mental Health Standerd 7-6.9, A.3.A) Standards for

Crimiral Justice (24 ed. 1984).

See also State v. Palm Seach Newspapers. Inc., 195 So. 24 344

of the trial court to suppress the introduction into evidence of

the gun usec to kill the police officer which was seized from

underneatn a heating grate in the appellant's grandmother's

house. Appellant contends that the affidavit in suppor: of the

fearch warrant was insufficient to establish probable cause. We

Gisagree. The affidavit was sufficient to establish probable

cause and the trial court properly denied the motion to suppress.

Appellant's fourth point concerns uliags involving the

exercise of the trial court's discretion. We find that the

record does not demonstrate an; abuse of discretion. See Dobber-

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

We have previously rejected appellant's fifth claim that

alleges error in the denial of an evidentiary hearing on the

issue of whether a death-qualified jury is also a guilt-prone

jury. boert v. State, 409 So. 24 1053 (Fla. 1982). We refuse

to revisit this issue.

Sentencinc Phase

The appellant raises eight issues concerning the

sentencing phase of his trial. We address only his contention

that it was reversible error for the trial judge to give the jury

the “Allen charge*? after the jury had announced that it had

become deadlocked curing deliberations on whether to recommend a

Ceath or lite sentence. In Rose v. 425 So. 24 $21 (Fla.

’

cer=. Cenied, 461 U.S. 909, (1983), we faced a similar situation.

In that case we stated

tes that the charge was

jury advised the court by a

“We are tied six to six,

ar mine at th

instruct us.” At that

Sucge should have advised

was nct necessary to have

@ sentencing

3. Ailen v. Omitted States, 164 U.S. 492 (1896

-9-

recommendation because, if s

mot vote to recommend death,

recommendation is life imprisonment. There

was no reason to give the “Allen charge

Curing the penalty phase of <ne trial. We

therefore vacate the jeac=n sentence and

hole that defendant is entitled to a new

sentencing proceec:ng before a jury.

Id. at 525. We find no logical distinction between the instan+

case and our Rose decision and hcid that the case must be

remanded for a new sentencing hearing. We do not find it

appropriate to treat the jury recommendation as a life

recommendation and the trial judge's sentence as a jury override,

as urged by the state. There was no life recommendation in this

case and the trial court did not, therefore, consider thi

Significant factor in his sentencing decision. To now treat the

jury recommendation as a life recommendation and review

appellant's sentence without the benefit of the trial judge's

consideration and application of the Tedder doctrine‘ would

require this Court to make an assumption as to what sentence the

trial judge would have imposed if the jury had actually returmed

a@ lite recommendation. We decline to do so.

Accordingly, we aff: appellant's convictions and

sentences with the exception of the death sentence. We vacate

the death sentence and remand to the trial court for a new

sentencing proceeding before a jury. In view of the evidence

that was presented during the sentencing proceeding, we ¢irect

the trial court's attention to the United States Supreme Cour:

decision in Eddincs v. Oklahoma, 4£5 U.S. 104 (1982), and its

pOss:Sle application to the facts of this case.

it is so ordered.

BOYD, C.J., ALDERMAN, McDOIALD, ERRLICH and SHAW, JJ., Concur

ADFINS, J., Concurs in the conviction, but dissents from the

sentence

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

FILED, DETERMINED.

4. Tedcer v. State, 322 So. 24 908 (Fla. 1975).

-10-

snarcson

anc

Rancall

EXHIBIT C

Fiocp

~~ tut od

IN THE SUPREME COURT OF THE 2D J. :

STATE OF FLORID: YAN 24 jogs

CLERK, SUrke, .

Ry © GUUNT

5 ‘ ’ Chet 5 wr,

ROBERT PATTEN, ) POLY Clerk

)

Appellant, ) CASE NO. 61,945

V. )

) Appeal from the Eleventh

STATE OF FLORIDA, ) Judicial Circuit

)

Appellee. ) Capital Case

)

MOTION FOR REHEARING

and

MOTION TO SUPPLEMENT THE RECORD

Defendant, through undersigned counsel, moves this Court for

@ Rehearing, pursuant to Rule 9.330(a), and to Supplement the

Record, pursuant to Rule 9.200(f£), Florida Rules of Appellate

Procedure, and in support thereof states:

Motion to Supplement the Record

The Court's opinion attaches great significance to

absence from the Record transmitted to the Court of a written

Notice of Intent to Rely on the Defense of Insanity That

importance 1s contrary to counsels’ expectat

‘

re)

Court's prior case law.

The conclusion that no written Notice of Intent to Rely

an Insanity Defense was filed is erroneous. If, for purposes of

the attached Motion for Rehearing, the Court is not satisfied

that a written notice was filed, appellant requests that this

Cozrt temporarily relinquish jurisdiction to the trial court t

permit a hearing and determination of whether, in fact, the

written notice was filed, as authorized by Rule 9.200(f), Florida

Rule. of Appellate Procedure.

Defendant submits that the record currently before the

amply establishes that a Notice of Intent was filed. Because

prior case law placed no importance cn the xistence of notice,

written or otherwise, where a defendant haz

insane, counsel did not deem it necessary t>s formally invoke the

procedures of Rule 9.200(£). Nevertheless, out of an excess of

caution, defendant's Reply Brief specifically stated: “If the

Court is seriously concerned that defendant did not provide sch

a notice, even though the state had actual notice, defendant sug-

gests this Court temporarily relinquish jurisdiction to permit

the record to be supplemented." Defendant's Reply Brief, page 2,

nol.

It is true that the Record as transmitted to this Court

fails to contain the Notice of Intent. Nevertheless, the Record

belies the Court's conclusion that no written notice was filed. '

It shows that the state received a copy of defendant's Notice of

Intent to Rely on the Defense of Insanity in open court (Tr. 35-

>) In response (certainly for no other reason) the state filed

a Motion demanding an Insanity Bill of Particulars, asserting

therein that the defendant "has entered a plea of not guilty by

reason of insanity .. ." (R. 101). The Motion was denied on the

ground that the information had been previously furnished (R.

129).

The Appendix to this Motion to Supplement the Record

contains the affidavits of Marsha L Lyons, Esquire, lead defense

counsel and G. Bartram Billbrough, assistant defense counsel and

currently an Assistant Attorney General. Their affidavits assert

that a Notice of Intent to Rely on the Defense of Insanity was

filed in open Court, as indicated on pages 35 and 36 of the

transcript. Additionally, the Appendix contains the affidavit of

Peter M. Siegel, Esquire, one of defendant's appellate counsel,

attesting to his locating a copy of the Notice of Intent in the

file maintained by the Clerk of the Circuit Court. Said document

is not a part of the Record transmitted to this Court. A certi-

fied copy of the document is attached to Mr. Siegel's affida-

vit. The Appendix also contains the affidavit of William L.

Richey, Esquire, another of defendant's appellate counsel,

attesting to his discussions with the State's Attorney

responsible for prosecution of Robert Patten. Finally, the

Appendix contains an affidavit by Thomas Scott, the former

Circuit Court Judge who presided over the trial. All the

affidavits indicate that the Notice of Intent was filed.

As these affidavits clearly demonstrate, the absence of the

actual piece of paper is attributable to an error by the Court

Clerk and not defense counsel's failure to prepare and serve the

notice. Moreover, there can be no question that both the State

and the trial court were fully aware of the existence of the

Notice from the earliest stages of the proceedings.

WHEREFORE, appellant again requests, this time by way cf

Motion, that if the Court doubts that a Notice of Irtent was

filed, it temporarily relinguish jurisdiction to the trial court

to permit an evidentiary hearing on the issue of whether the

Notice of Intent was iled.

Motion for Rehearing

Defendant moves for a rehearing on the following grounds:

(1) a Notice of Intent to Rely on the Defense of Insanity was

filed in the trial court, (2) the reversal of existing case law

and the retroactive application of the new rule of law to defen-

dant violates the Due Process Clause, and (3) because a trial

court. has no authority to reject a jury verdict that i: permitted

by the jury instructions, the defendant is entitled t the bene-

fit of the jury's apparent life recommendation.

le Notice of Intent.

The defense did file a Notice of Intent to Rely on the

Defense of Insanit’. The facts and circumstances are detailed

above, and need not be repeated. This Court's conclusion that

“[n]o written notice of intent to rely on the defense of insanity

was ever submitted to the court in accordance with Florida Rule

of Criminal Procedure 3.216" (slip opinion, p. 3) is not cor-

rect. Although not filed by the Clerk, the transcript reflects

delivery in open court (Tr. 36). Thus, to the extent a written

notice is required to trigger the state's burden of proof with

respect to the mental state of th-= defendant, that trigger was

given.

2. Retroactive Application of a Change of Law.

Prior to the instant decision, Florida followed the long-

established and widespread rule that one who has been adjudged

insane is presumed to continue so until the state establishes, at

trial, that his sanity has returned. That rule can be found as

early as 1892. Armstrong v. State, 30 Fla. 170, 11 So. 618

(1892). It has been consistently followed to date. Corbin v.

State, 129 Fla. 421, 176 So. 435 (1937); Acree v. State, 15 So.2d

262 (Fla. 1943); Emerson v. State, 294 So.2d 721 (Fla. 4th DCA

1974); Alexander v. State, 380 So.2d 1188 (Fla. Sth DCA 1980);

Livingston v. State, 383 So.2d 947 (Fla. 2d DCA 1980); King v.

State, 387 %30.2d 433 (Fla. lst DCA 1980); Eason v. State, 421 |

So.2d 35 (Fla. 3d DCA 1982). This unbroken line of authority |

required the state to prove at trial that Robert Patten was com-

petent at the time of the alleged offenses.

Because the presumption was of insanity, and because the

State bore the burden of proof, the question o. whether the

defendant was sane at the time of the offense cannot properly be

characterized as an affirmative defense.!

For the first time, this Court has now held that insanity is

an affirmative defense even where the defendant has previously

been found insane and his competency sot judicially restored.

Undoubtly, the Court has the power to adopt such a rule --

prospective’y -- not retroactively. The Court has overlooked the

fact that retroactive application of a new rule of procedure,

because it disadvantages the defendant, violates tiic Mue Process

Clause. A rehearince is requested because of the Court's omission

1. Although the Evidence Code's presumption rules do not apply

to criminal proceedings, the nature of a presumption, set forth

in § 90.302, Fla. Stat. (1983), is fully applicable to the

operative etfect of a legitimate presumption in the criminal law

context. All presumptions, whether implicating the burden of

producing evidence or the burden of proof, require the party

against whom the presumption operates to go forward or suffer the

consequences of the presumption. Since the criminal defendant

previously adjudged insane is entitled to a presumption of con-

tinuing insanity, unless the state does something to overcome the

presumption, the state has failed to establish all essential ele-

ments of the offense.

to consider this vital doctrine.

The court's opinion, without citation, reverses at least

five prior decisions of this Court. Perkins v. Mayo, 92 So.2d

641 (Fla. 1957); Horace v. Culver, 111 So.2d 670 (Fla. 1959);

Dixon v. Cochran, 142 So.2d 5 (Fla. 1962), cert. denied, 37] U.S.

866 (1952); Clark v. Wainwright, 148 So.2d 273 (Fla. 1963); Yates

v. Wainwright, 151 So.2d 832 (Fla. 1967). Florida law, for near-

ly a century, has clearly held that the presumption of sanity

does not exist once a person has been found insane. Instead

there is a presumption of continuing insanity which can only be

removed by proof of sanity. Wells v. State, 98 So.2d 795 (Fla.

1957). See, Bratten, Florida Criminal Procedure §

(1983). The consequences are that the state, not the defendant,

bears the initial burden of going forward, as well as the ulti-

mate burden of proof.

Moreover, all the Florida vases establishing the state's

burden were decided under procedures that required defendants,

other than those previously judged insane, to give notice of

intent to rely on the defense of insanity. The initial rule,

wiich did not require a separate written notice, was statutory,

last found at § 909.17, Fla. Stat. (1969), repealed by Ch. 70-

339, §180, Laws of 1970. See, Adkins, Florida Criminal Law and

Procedure 384 (lst ed. 1954).

The initial adoption of the Florida Rules of Criminal Pro-

cedure made no change in the notice requirement. According tc

the Rules of Criminal Procedure Committee, the orig.nal version

of Rule 3.210(b), Florida Rules of Criminal Procedure (1967), was

the same as tie statute. In re Florida Rules of Criminal Proce-

Gure, 196 So.2d 124, 149-50 (Fla. 1967).

The 1972 revision made no change. In re Florida Rules of

Criminal Procedure, 272 So.2d 65, 104-05 (Fla. 1972). Indeed,

this Court was careful to note that the Rules of Criminal Proce-

Gure were just that, procedure, arid did not effect substantive

rights (272 So.2d at 65-66 (Justi.e Adkins, concurring)}. The

West commentary to the Rules make it clear that there was no

intent to change the rule of the cases relied upon by defun-

dant. The author notes:

If an accused has been adjudged insane at a

prior time, then the burden shifts to the

State to establish that said person was sane

at the time of the crime in view of the pre-

sumption of continuing insanity. Wells v.

State, 1957, 98 So.2d 795.

Author's Comments to Rule 3.210, 33 F.S.A. p. 364 (West 1975).

Further, the author's note specifically states that: “Paragraph

(b) [of Rule 3.210) is the same as the prior paragraph (b) of

Rule 3.210 [1967 Rules of Criminal Procedure} and former F.S.A.

§909.17."

The 1977 revision of Rule 3.210 for the first time imposed

the requirement that a ceparate written notice of intent to rely

upon the defense of insanity be filed. Rule 3.210(e), Florida

Rules of Criminal Procedure (1977). There is no indication in

the 1977 revision that the authors meant to change the rule of

Wells v. State, 98 So.2d 795 (Fla. 1957), Perkins v. Mayo, 92

So.2d 641 (Fla. 1957), or any of the other cases relied upon by

defendant. See, In re Rules of Criminal Procedure, 343 So.2d

1247, 1256-1260 (Fla. 1977).

The 1980 revision separated the rules concerning competency

to stand trial and competency at the time of offense. It adopted

Current Rule 3.216(b) which, according to the Committee, was

"[e]ssentially the same as in prior rules; provides that written

notice must be given in advance by the defendant.” In re Rules

of Criminal Procedure, 389 So.2d 610, 624-626 (Fla. 1980).

Again, there is not the slightest hint that adoption of the cules

was meant to reverse the rule of law relied upon by defendant.

Until this Court's decision in the instant matter, the

courts of Florida, in an unbroken line of cases dating back to

1892, had uniformly followed the rule that a prior finding of

insanity creates a presumption of continuing insanity and shifts

the burden to the state to come forth with procf of sanity.

Alexander v. State, 380 So.2d 1188 (Fla. Sth DCA 1980). The

Court's opin‘on reverses this long established florida rule.

Only by reversing the applicable rule o* law is the Court able to

hold that insanity is an affirmative defense and that the defen-

dant bears the burden of presenting evidence of insanity suffi-

cient to raise a reasonable doubt before the burden shifts to th-

State to prove sanity beyond a reasonable doubt. Perhaps signit-

icantly, the Court does not cite a single Florida case for the

proposition of law it applies to defendant.

A new rule of law cannot be applied retroactively if it pre-

judices the defendant. The Ex Post Facto Clause is a limitation

upon the power of the Legislature and does not of its own force

apply to the Judicial Branch of government. “But the principle

on which the Clause is based -- the notion that persons have a

right to fair warning of conduct which will give rise to criminal

penalties -- is fundamental to our concept of constitutional

liberty. . . As such, that right is protected against judicial

action by the Due Process Clause of the Fifth Amendment." Marks

v. United States, 430 U.S. 188, 191-192, 97 S.Ct. 990, 992-993,

51 L.~Ed.2d 260 (1977).

"If a state legislature is barred by the Ex Post Facto

Clause from passing such a law, it must follow that a State

Supreme Court is barred by the Due Process Clause from achieving

precis@ély the same result by judicial construction." Bouie v.

A law is ex post facto if it applies to even

before its enactment and if it disadvantages the offender

affected by it. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67

L.Ed.2d 17 (1981). In explaining, the Court noted:

We have also held that no ex post facto

violat on occurs if the change effected is

merely procedural, and does "not increase the

Punishment nor change the ingredients of the

offense or the ultimate facts necessary to

establish guilt.” Hopt v. Utah, 110 U.S.

574,590, 4 S.Ct. 202, 210, 28 L.Ed. 262

(1884). See Dobbert v. Florida, 432 U.S. 282,

293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344

(1977). Alteration of a substantial right,

however, is not merely procedural, even if the

Statute takes a see~inc!. »rocedural form.

Thompson v. Utah, 170 U.S. 343, 354-55, 18

S.Ct. 620, 624, 42 L.Ed. 51 (1898); Kring v.

Missouri, supia, at 232, S.Ct., at 452.

Nye «

Id., 101 S.Ct. at 964, n.12.

"If a judicial construction of a criminal statute is

unexpected and indefensible by reference to the law which had

been expressed prior to the conduct in issue, it must not be

given retroactive effect." Bouie v. City of Columbia, 378 U.S.

347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (194). The Boule

Court concluded:

When a state court overrules a consistent line

of procedural decisions with the retroactive

effect of denying a litigant a hearing in a

pending case, it thereby deprives him of due

process of law “in its primary sense of an

opportunity to be heard and to defend [his]

substantive right.”

378 U.S. at 354, 84 S.Ct. at 1703. State v. Byers, 102 Idaho

159, 627 P.2d 788 (1981). clearly recognizes that a change in the

law by judical decision making is ex post facto and, therefore,

violative of the Due Process Clause. In Byers, the Idaho Supreme

Court abolished the requirement of corroboration for sex offender

crimes. However, because no corroborative testimony was offered

at Byers’ trial, his conviction was reversed. “Obviously,” noted

the Court, “our holding today alters the legal rules of evidence

such that ‘less or different testimony than the law required at

the time of the commission of the offense (is necessary) in order

to convict the offender.'” 627 P.2d at 795.

“perhaps the easiest case is that in which a judicial deci-

sion subsequent to th« defendants' conduct operates to his detri-

ment by overruling a prior decision which, if applied to the /

defendant's case, would result in his acquittal. For example,

the later decision may . .. disallow a defense permitted in an

earlier case." Lafave & Scott, Handbook on Criminal Law 94-95

(1972).

This Court's opinion, in fact, overrules prior precedent to

the detriment of the defendant. Under the prior law, defendant's

conviction could not stand. Under the law has set forth in the

Court's opinion, Robert Patten's conviction is affirmed.

United States v. Williams, 475 F.2d 355 (D.C. Cir. 1973), is

on all fours with the instart case. In Williams the Leg:slature

changed the rules concerning establishing insanity by shifting

both the quantum of proof and the Party who bore the burden of

proof. in finding that statutory modification to violate the Ex

Post Facto Clause if applied to defendants whose crimes were

committed prior to the statutory amendment, the court held:

A long time ago the United States Supreme

Court defined ex post facto laws to include

“({e]very’law which alters the legal rules of

evidence, and receives less, or different,

testimony, than the law required at the time

of the commission of the offence, in order to

convict the offender." Calder v. Bull, 3 U.S.

(3 Dall.) 386, 390. 1 L.Ed. 648 (1798). (Em-

phasis in original.) That definition repre-

sents the law today just as it did in 1798.

The retroactive application given Section

207(6) by the trial court “alter[ed] the legal

rules of evidence” so that appellant was con-

victed on “less, or different, testimony, than

the law required at the time of the commission

of the offence." Certainly the court's

charge, “‘in its relation to the offence, or

its consequences, alter[ed] the situation of

the accused to his disadvantage.'" Thompson

ve. Utah, 170 U.S. 343, 351, 18 S.Ct. .620, 623,

42 L.Ed. 1051 (1898), quoting Uniteda”States v.

Hall, 2 Wash.C.C. 366. Moreover, Congress, in

enacting Section 207(6), specifically intended

to alter the situation of the accused to his

disadvantage. Congress was concerned that

existing law "* * * permitt[ed] dangerous

criminals, particularly psychopaths, to win

acquittals of serious criminal charges on

grounds of insanity by eletan a mere reason-

able doubt as to their sanity* * *." H.R.Rep.

No.91-907. 91st Cong., lst Sess., 74 (1970).

Under the circumstances, appellant's convic-

tion must be reversed on ex post facto

grounds. <a

475 F.2d at 356-57 (Footnotes omitted) (emphasis in original).

This Court's holding that insanity is always an affirmative

defense does precisely what was condemned in Williams.

Changes in the rules of evidence that work to the detriment

of the defendant are barred by the Ex Post Facto Clause. The

Clause extends to any alteration, even one labeled procedural,

“which in relation to the .ffense or its -onsequenccs, alters the

Situation of a party to his disadvantage.” Kring v. Missouri,

107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882). A typical

example is Walker v. State, 433 So.2d 469 (Ala. 1983). In Walker

the Alabama Supreme Court held that repeal of the law making

inadmissible statements made by a child while in police custody

worked such a substantial disadvantage to the juvenile as to

invoke the Ex Post Facto Clause. The Court went on to hold that

"Ib)ut for the legislature's repeal [of the evidentiary bar], the

defendant admittedly would have been acquitted. Certainly such a

change deprives the defendant of a right in a most substantial

way." 433 So.2d at 473.

Similarly, in State v. R. H., 273 S.E.2d 573 (W.Va. 1980),

the prior law provided that no testimony of a juvenile offender

given at a transfer hearing could he admitted into evidence at

any subsequent criminal trial. The trial judge announced that he

would apply the new juvenile code, which did not contain the

admissibility bar. As a result, the juvenile chose not to

testify in order to protect his Fifth Amendment rights, and the

juvenile was transferred for trial as an adult. The conviction

was reversed, the court finding that application of the new rule

violated the Ex Post Facto Clause. The detriment occurred

because the offender, in order to protect his right against self-

incrimination, was forced to give up any meaningful chance to r

prevent the transfer.

So too, with Robert Patten. Under the prior law, his

conviction cannot stand. Under the law has set forth in the

Court's opinion, the conviction is affirmed. That is precisely

what the Ex Post Facto Clause is meant to prevent.

Accord, Goode v. State, 50 Fla. 45, 39 So. 451 (1905);

United States v. Goodheim, 65] F.2d 1294 (9th Cir. 1981);

Government of Virgin Islands v. Civil, 591 F.2d 255 (3d Cir.

1979); United States v. Henson, 486 F.2d 1292, 1304-1308 (D.C.

Cir. 1973); State v. Mauro, 139 Ariz. 422, 678 P.2d 1386 (Ariz.

1984); State v. Mee, 102 Idaho 474, 632 P.2d 663 (1981); People

v. Martinez, 82 Misc. 2d 56, 368 N.Y.S.2d 699 (Sup.Ct. 1975).

Appellant's position, contrary to the Court's opinion (slip

opinion, p. 7) is both logical and reasonable. In addition, it

is in accord with prior case law. First, of course, no matter

how obvious the defendant's guilt, no matter how mute defense

counsel stands, the state always bears the burden of proving each

and every element of the offense. United States v. Goetz, 746

F.2d 705 (llth Cir. 1984). It is true that the state, in order

to meet its burden, would have had to produce expert testimony of

defendant's competency at the time of the offense. It is also

true that the testimony, in all probability, would inform the

jury of defendant's prior commitments. It is not necessarily

true that the testimony would, of necessity, have had to inform

the jury of defendant's prior acquittal of criminal offenses

way Of insanity, since it would have been sufficient for the

trial court to instruct the jury that becaus

(J)

of a prior adjudi-

cati-n of insanity, the defendant is presumed to continue to be

insane until proved otherwise. Nor, in light of the nature of

the insanity defense, would defendant be prejudiced by a full

telling of his mental health history.

Finally, shifting the burden of producing evidence can have

avery Significant effect on the jury

4°]

()

ue)

)

rea of the defendant. If the state, as part of its case in

chief, and not as rebuttal, is forced to attempt to prove defen-

dant's competency, the jury may well conclude that where there is

smoke there is fire. And more importantly for Robert Patten's

case, even if the jury did not find him incompetent, compelling

the state to go forward with testimony concerning competency may

well have caused the jury to return a verdict of second degree

Defendant requests a rehearing because this Court overlooxed

the rule of law that the adoption of a new rule of law cannot be

applied retroactively. “Hard cases, as we all know, make bad

law. This is an exceedingly hard case . .. I am sympathetic

with the majority's dilemma when asked to free... the apparent

perpetrator of a gruesome crime in the name of a legal theory.

However, the theory that a person accused of a crime is innocent

until found guilty beyond a reasonable doubt by a jury of his

peers is, I think, at the foundation of the Anglo-American system

of criminal law; it responds to the fundamental demands of

justice; and it must be closely guarded against erosion even in

as difficult a situation as this one."2

3. The Jury's Apparent Life Recommendation Cannot Be

Rejected By the Trial Court.

The Court apparently overlooked the basic relief requested

by appellant as a result of the Rose} violation, which was a

remand for a new sentencing premised on the fact that the jury

obviously intended to return a life recommendation. (Appellant's

Initial Brief, p. 47). Appellant believes he is entitled to this

relief for the following reasons.

The jury was not deadlocked (slip opinion, p. 9). Ther

be no deadlock, as a matter of definition, at a penalty phase

proceeding. As Rose made clear, six to six is a life recom-

mendation, not deadlock.

Unlike Rose, sub judice, counsel for the defendant made it

absolutely clear to the trial judge that six to *.x was a life

recommendation, that the trial court had no alternative but to

accept it and that counsel objected to any further deliberation

by the jury. Both prosecution and defense agreed that six to six

should be deemed a life recommendation. The so-called Allen

charge was given over objection (Tr. pp. 1773-1778).

The error in refusing to accept the recommendation of the

jury is solely the error of the trial judge. It is not unlike

the situation in Central Texi Service, Inc. v. Greenberg, 418

So.2d 333 (Fla. 3d DCA 1982) where the jury initially answered

only three of four special verdict questions. The court sent the

jury back with all four questions and the jury returned with a

different answer to one of the three previosly answered qu?2s-

tions, now finding the defendant not negligent. In approving the

trial court's subsequent setting aside of the second verdict and

adoption of the first answer, the court noted:

Because the first verdict was not in fact

published and, since it was incomplete, could

2. United States ex rel. Ross v. Franzen, 688 F.2d 1181, 1187

(7th Cir. 1982)(Judge Cuadahy, dissentirg).

3. Rose v. State, 425 So.2d 521 la.), cert. denied, 46] U.S.

909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983.

not in any event have been deemed final or:

beyond its control, see Glecer v. Fletcher,

299 So.2d 134 (Fla. 3d DCA 1974), we recogni

that the jury would have retained the theo-

retical authority to alter even its answers to

questions 1-3, although it had been asked onl

to fill in the damages blank. .. . There is,

however, utterly no basis for believing that

it would have done so in fact under those cir-

cumstances. It is for this reason that we do

not disapprove the discretionary conclusion

that the new trial. should concern only

damages, rather than including the liability

issue as well.

° ~ 2 . A

418 So.2d at 335, n.5 (citations omitted, emphasis in original).*

This Court failed to address the defendant's constitutional

have the action of the

te)

ury accepted by the trial

court. When the trial judge exceeds his authority and improper

entitled to the benefit of the jury's apparent verdict.

Defendant's entitlement flows from the fact that a trial

judge has no authority to reject a jury's favorable treatment of

the great triumphs of the common law, the victory of the jury

over the king. As a result, the judge is not authorized to

he = a ~ » 9 a y

prevent ‘he return of a verdict in a criminal case. See, I

—P . = % a >

Holdsworth, A History of English Law 337-347 (7th ed, reprinte

x 2

79077 he . a Bae = ~ _ r TT I

19/1); Thayer, The Jury and its Devel ent, Part III, 5 ‘larv. L.

t is difficult to find cases of recent origin on point.

That is undoubtly because it is accepted as basic constitution

and common law that the court must accept the decision of the

jury. One of the early case is State v. Arrington, 7 N.C. 35

Mur. 571 (1819). <A similar result was reached in the later case

of State v. Ostrander, 30 Mo. 13 (1860). These early de

“

“n

established that the trial court must record the verdict firs

brought in so long as it is not an informal or insensible

verdict, or one that is not responsive to the issues submitted

4. This is not a case in which t! jury erred, like Grant v.

State, 33 Fla. 291, 14 So. 757 (Fle. 1894).

» 53 «

Robert Patten's jury was ready to return a responsive verdict.

The Court prevented it. Robert Patten is entitled to the benefit

of that apparent verdict.

There is no authority that permits a “court to refuse to

accept a verdict complete in substance and responsive to the

issues.” State v. Chambliss, 142 Miss. 256, m » 107 So. 200,

202 (1926). The State may argue that there was no verdict. That

is true in the sense that none of the formalities attendant to

the return and entry of a verdict took Place. But the fault lies

with the trial judge, not the jury, and certainly not the

defendant. In none of the cases which stand for the hornbook

Proposition that a court cannot reject a verdict were the

formalities complied with. They couldn't be because the trial

court refused to accept the verdict. That type of error cannot

be permitted. The defendant is entitled to the jury's obvious

recommendation of life.

A typical example of refusal to permit the trial judge to

reject the jury's decision is State v. Craig, 176 N.C. 740, 97

S.E. 400 (1918). There the jury returned with a verdict of “ot

guilty". The judge sent the jury back to consider whether the

verdict was “not guilty because of mental incapacity.” The court

held the trial court has no tuthority to send the jury back and

that the first verdict was binding.

A case much closer to Robert Patten's situation is Darsey v.

State, 138 Ga. 501, 71 S.E. 661 (1911), app. dis'd, 231 U.S. 741,

34 S.Ct. 318, 58 L.Ed. 462 (1913) where the jury returned with a

guilty verdict for a non-charged lesser offense. The judge

refused to accept the verdict and sent the jury back. The jury

deadlocked and the judge declared a mistrial. The court held

that double jeopardy prevented a retria] because the original

verdict constituted an acquittal of the greater offenses and the

trial court lacked the authority to refuse to accept it. See

also, State ex rel. Earsom v. Fisher, 103 W.Va. 658, 138 S.E. 316

(1927). Indeed, the defendant is entitled to the benefit of the

jury's decision even if the jury returns a verdict that is

contrary to the Court's charge. Register v. State, 10 Ga.App.

802, 74 S.E. 428 (1912).

That action of Robert Patten's trial judge is no different,

for analytical purposes, from the action of a trial jiudae wi

rants a mistrial in the absence of manifest necessity.

Situations, the formalities attendant to the return f a verdict

are cut off by the trial judge's error. In the mistrial situa-

tion, the judge's error results in barring a second trial because

of the har of double jeopardy. Thus, the defendant benefits fr

a totally unknown jury verdict. In Robert Patten's situation,

the intent of the jury was obvious. The trial judge's error

should not serve to deprive defendant of the benefit of the

In that respect, the case is like Grandberry v. Bonne

ve |

court abused its dis-

;

a |

cretion by declaring a mistrial. Because there was no manifest

necessity, the trial court erred. Retrial of the defendant was,

/ - , Ty ~ .

therefcre, barred by the Double Jeopardy Clause. Florida deci-

Ssions are similar. State ex. rel. Wi amS v. Grayson, 90 So.z

— — ee EE

71 (Fla. 1956); State ex rel. Alcala v. Grayson, 23 So.2d 484

— - ———— ——EE

{ lac « Crat re?) ; 7 r t c 74 17 /

(194 ; ate ex rel. Wils '. Lewis, 55 >.2¢d 118 (Fla.

1951). See also, U.S. v. Spinella, 506 F.2d 426 (Sth Cir.),

cert. denied, 423 U.S. 917 (1975).

Here the judge did not declare a mistrial. The defendant

wili not go free because the trial court erred. The defendant

Geliberations. There is no sound reason to deprive a capita

defendant of the benefit of the jury's favorable recommenda-

tion. That does not teem unfair in light of the nature of the

case and the nature f the error

WHEREFORE . } } .

WHER “ P ar ella . res € tfu ly re J est< that t | « y+

jrant the Motion for Rehearing and ] recede fr its deter-

os ati tr at ir anity i a — ~ ve _ Fance ¥ apply it

3€ lsi tnat ir 5] t slwa ffir t ve jefe ‘ ly

ground that the state failed to prove an essential element of the

offense, and (2) if the guilty finding is upheld, remand the

matter for a new sentencing proceedin premised on the existence

on a jury recommendation for life.

Respectfully submitted,

Peter M. Siegel, Esq.

Randall Ce Berg, Jr., Esq.

FLORIDA JUSTICE INSTITUTE, INC.

1400 AmeriFirst Building

One Southeast Third Avenue

Miami, Florida 33131

(305) 358-2081

William L. Richey, Esq.

RICHEY AND MUNROE, P.A.

717 Ponce de Leon Boulevard

Suite 33]

Coral Gables, Florida 3313]

(305) 44£-1110

Attorneys for Appellant

Peter M. Siegel, Esq.

7 & wohl bx sy

Certificate of Service

I hereby certify that a true and correct copy of the

. 22>

foregoing was delivered by U.S. Mail this Gay of January,

1985, to Assistant State Attorney Arthur Berger, State Attorney's

Office, 1351 N.W. 12th Avenue, Miami, Florida 33125, and

Assistant Attorney General Calianne Lantz, Attorney General's

Office, 401 N.W. 2nd Avenue, Suite 820, Miami, Florida 33128.

“

"Rite

Peter M. Siegel, Esq.

EXHIBIT D

Supreme Court of Florida

THURSDAY, APRIL 18, 1985

ROBERT PATTEN, Appellant/Cross-Appellee, ee

vs. ee

Case No. 61,945

STATE OF F"ORIDA, Appellee/Cross-Appellant. ., Circuit Court Case

No. 8681-19702

*° (Dade County)

Appellant's motion to supplement the record in this cause

is granted. We have considered appellant's motion for rehearing

in light of our revised opinion in this cause and we deny the

g y

Chief Judge

motion.

A True Copy JB

TES? : cee. cc: Hon. Richard P. Brinker, Clerk

eyAL COURS. Hon. Gerald Tt. Wetherington,

Cal

— ter M. Siegel, Esquire

. t 4 yRandall C. Berg, Jr., Esquire

William L. Richey, Esquire

Arthur Berger, Esquire

Calianne P. Lantz, Esguire

EXHIBIT E

01769

{

8 Everybody Sas one vote and’everybody has the same

9 Say sO and nobody with the biggest mouth controls.

10 Now, if the majority of the jury determine that

i Robert Patton should be sentenced to death, you should

12 recommend an adversary sentence as follows: A majority

; 13 of the jury advise and recommend to the Court that it

M4 im>™ se the Goeth peneits upon Robert Patton.

15 On the other hand, if by six or more votes the

16 Jury determines that Robert Patton should not be sentences

17 to death, your adversary sentence would be: The jury

18 advises and recommends to the Court that it impose a

19 Sentence of life imprisonment upon Robert Patton without

20 the possibility of parole for 25 years, and likewise,

2) On that ballot, there is a spot for the vote.

2 Now, let me show that to everybody so you understan:

~ 3 There are two ba)lot forms with the Style of the case.

: 23 The jury advises and recommends to the Court that

25 it impose the death sentence upon Robert Patton. So ee!

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O174V

} ! we all, the majority andthe foreperson again Signing it.

There is a spot for and against for the number o

Lal

3 votes. How many are voting for or against,

‘ If the decision is to impose a life imprisonment

S sentence, there is a verdict that Says: We, the ury,

6 recommend to the Court that it impose a life of

? imprisonment upon Robert Patton without the possibility

8 | of parole for 25 years. So say the majority, foreperson,

> | again, and a place for the vote.

10 | Does everybody understand?

| Now, you will retire to consider your recommendation.

2 | When sever or more are in agreement as to what

3 CO Sentence should’ be recommended to the Court, that forn

[

oa of recommendation should be signed by your forepers

1S and returned to the Courtroom.

1G I will likewise, as in the other phase, give

| | parer and pencil for any communicatior

8 | I will give you the jury charges to consider and t<

19 | read them if you want to and the form of the verdict.

%” At this time, you may now retire to consider your

2) verdict.

| eer

» | (Whereupon, the jury exited the Courtroom at 3:5

23 | p.m., after which the following proceedings were had:)

24 | THE COURT: Other than the objections previously

235 | stated, are thereany additional ones? t

———____ —E a = _ ——— — —EE = — —_ — _ — x

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EXHIBIT F

\ 3

10 Resuming State of Florida versus Robert Patton.

i Defendant present.

12 The Court has received the following note. +” Ss

13 quite interesting.

14 We have reached a six/six vote. On our instruction

15 sheet it says, “On the other hand, if by six or more

6 | votes the jury determines that Robert Patton should not

7 | be sentenced to death, your adversary sentence will be:

18 | The jury advises and recommends that the Court impose

: WY the sentence of life imprisonment upon Robert Patton

20 without the possibility of parole for 25 years.

21 On the other hand, in the next paragraph, .it says:

ya) When seven Or more are in agreement: What now?

23 That's exactly what the charges say. I noticed it.

24 I've given it several times and I often wondered what

25 would happen.

_— a

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207

l MS. LYONS: It's my understanding that if there's

C 2 a six/six-- |

3 THE COURT: Here's a copy of the jury charge. They |

4 sent me the Sellen It's very polite of them, |

Ss MS. LYONS: It's my understanding that if the vote

— 6 is six/six, that's a life recommendation and that's the

7 way--

8 THE COURT: What is the law on that? ;

9 MR. WAKSMAN;: I noticed that when I was reading the |

10 charge this week.

1) THE COURT; I noticed it and I've been through this

12 13 times and i've never felt it would come up because it

' 13 waS an unusual thing.

4 On a majority vote, why would they go six/six? I

1S could give them an Allen charge.

) 16 MS. sYONS: Your Honor, we would respectfully

17 object to such a charge. If the Court needs some law

18 concerning the fact of what a six/six recommendation

means, I would like to ask the Court for a brief recess

20 SO we can provide that for the Court.

2) THE COURT: Granted. Take a few minutes. You take

» a look at it too.

3 Get me Florida Statute 921.14]. Berger, go with |

( 24 him. |

25 MR. BERGER: I read that through and I didn't ae

“»

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errere? § hearer eee

]

, 2

0177;

_ 3 2Ub

| anything covering that point.

THE COURT: Mr. Syden, bring them back in anda let's

do something. Get in Mr. Patton.

All right, Ms. Lyons, let's do something.

Resuming State of Florida versus Robert Patton

Okay, Ms. Lyons, what is your position?

MS. LYONS: My position is that a six/six split

1S @ recommendation for life.

THE -COURT: Would the State stipulate to that or

does the State disagree?

MR. WAKSMAN: Without any law--there doesn't appear

to be a case on point that we could find, but a simple

reading of the instruction--it Says when six or more

Getermine that death should not be imposed, the

Jury

then recommends life. That's what it says.

THE COURT: Let me tell you what bothers me about

that, I have gotten the Florida Standard Jury Charge

in front of me, page 8l and 8 and I would like to make

some comment about that, but then I would like to compare

it to Florida Statutue 921.141 because I think the

Statute is controlling. The statute is what's concernirz

me here.

The Florida Standard Jury Charge says that your

de $i0n may be made by a majOrity of the jury. Then

goes on to talk in the next paragraph about whether

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14751

a a es

O17 7,

209

you recommend a sentence of life or a sentence of death.

Then it goes on to say: If the majority determine

the sentence should be death, and then it goes on to Say,

which is the contradictory part: On the other hand, if

by six or more votes, the Jury determines that the

Defendant should not be sentenced to death, yOur adversary

sentence will be: "Life.”*

Then it goes on to say: When seven or more are

in agreement as to what sentence should be recommended

to the Court, that form of recommendation should be

Signed by your foreman and returned to the Court, so ther

are five places where they say a majority and only one

place where it says six or more which is contrary by its

nature,

In order to try and understand, I went back to the

authorizing document which is Florida Statute 921.14]

to determine whether or not there was anything like that

in Similar language in the authorizing statute and there

isn't.

The statute says, and I quote: “Notwithstanding--"

This is the only reference in the statute.

"Notwithstanding the recommendation of a majority

of the jury, the Court after weighing the aggravating

and mitigating circumstances shall enter a sentence of

life or death," but the only reference in this statute of

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tthe Ga ee s eee ee . -_

] is tO a majority. It doesn't say anything in that

( 2 statute about Six or more being a life imprisonment and

3 it seems to me, Since the statute is the authorizing

4 document, what it basically is Saying is that the authors

5 of the standard charges have drafted an interpretatic

6 | of the statute which may not be founded.

7 MS. LYONS: Your Honor, I would respect ful] request

8 | at the very least some brief opportunity to do s

9 research on this matter.

10 | My reading of the statute, and I went back t ti

P Statute immediately too, is that the statute--it only

[or |

aed | : .

1 | Speaks to a@ recommendation of life or a recommendation of

13 death and then goes on to say what he Court may do; tat

14 the Court may impose life or death regardless of the

1S recommendation by the jury which is why I would argue

Y that based on the poor language of the statute--

17 THE COURT; This is what I will do. s wad

1B the jury in and I will say it is my understanding that

19 after deliberating, you have a six/six deadlock, and

» | Dennis will probably say yes, that's our positic

1 | Okay, at that point, you can come side bar and Say

» | to me, “Based upon that, we think that there's a finding

| ,

3 of life," and that will preserve your record.

24 I'll overrule your objection and I']] Give ti

| . + "

25 | deadlock charge, and if they come back with the six/six

_—— | SO ———_—_——_—_——_—_— —— — — 54

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01776

211

after the deadlock charge, then it's over. You take

your position up and you can get it ruled on.

If they come back one Way Or another--it maybe in

favor of you, seven/five. Then you're in good standing.

You can still take the position that six/six means

life and I was wrong in what I Gid, but that way both

Sides are protected and we get a breaking of the deadlock

because I don't know what the legal effects are of it and

these people are Sitting back there.

Any objection by that procedure?

MR. WAKSMAN: No, Your Honor.

THE COURT: You're objecting to it. your position

is: I should write tnem a note Saying six/six is life

imprisonment.

MS. LYONS: Yes, Your Honor.

THE COURT: Objection overruled.

Bring the jury in.

(Whereupon, the jury entered the Courtroom at 6:45

p-m.,after which the following Proceedings were had:)

THE COURT: Everybody have a s2at and relax for a

Minute. I know you have been working hard.

We are missing one person; right?

Mr. Levy?

JUROR NUMBFR THREE: He wil be just a moment.

THE COURT: Okay, all the jurors being in the

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Courtroom, Mr. Dennis, I would like to ask you a question.

From your note, aft

deliberations, it 18 my understandin that it 1S as

follows That basically it's a six/six vote. Six

jurors for life and six for death; is that correct

MR DENNIS: Yes, sir

THE COURT Here's what I would like t have you d

Now, I know all of you have worked very hard to find -<

to make a majority re: ndation in this case; ok

A majority meaning seven, and apparentiy at ha beer

Sssible for you so far

Sometimes ss early vote before discussi ca Ke

it hard to reach a mr Ority about the case

The vote, not th discussion, might make it hard

to see all sides of this issue.

Now, we are aware that it is legally permissible f I

a jury to disagree There are two thin the ju ca

lawfully do

Agree on a verdict or disagree on what the facts of

the case may truly be.

There is nothing to disagree about on the law.

The law is as I told you. If you have any disagreements

about the law, I should clear them for you now. That

should be my problem, not yours.

If you disagree over what you believe the evidence

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\eeeee « -

showed, then only you can resolve that conflict if it

is to be resolved.

I have one request of you: By law, I cannot denand

this of you, but I want each of you to go back into the

jury room and then taking turns tell each of the other

jurors about any weakness of your own position.

You should not interrupt each other or comment on

each other's views until each of you have had a chance

to talk.

After you have done that, if you simply cannot

agree On @ Majority vote; okay? If yOu cannot agree on

a Majority vote, let me know and I will give you a furthe}

instruction; okay? |

Mr. Dennis?

MR. DENNIS: The main question was some of the

members of the jury felt there was a conflict, that they |

Only--that a deadlock meant that--we were vague about

whether we needed a majority vote for a life sentence.

THE COURT: Let me see the attorneys at side bar.

(Whereupon, the following side bar conference was

held outside the presence of the jury:)

THE COURT: Rethes then giving them an answer to

that question, I would like to tell them this: 1 would

like to say, “I'm not sure what the law is either on that

issue. That's why I would like to have yOu agree to a

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majority

but if you can't, and you still have

then I want you to enter a vote for life.

That's exactly what I want to tell then

with that?

MR. WAKSMAN Nc

THE COURT I'm not sure what t law i

can't come to an agreement ra

si the verdict for life a

That will be my i tr - "

previous objections

LYONS: Without waiving a

(Whereupo.,, the side bar « fere e wa C

after which the following proceedings were had

THE COURT Mr Dennis, I hav been throu

many, many times, and the answer tc your quest

‘(now what the law is, guite frankly.

As you pointed out, there is a contradict

Jury charge and because c that, I would like

you can

agree on one or the other

Lal

aaa

whet I just suggested.

After trying it one more time, if you can

the six/six vote, then I want you to Sign a re

for life

2mprisonment because I think that's w

Jury charge Says.

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the

215

O17§.

If you can agree on a majority to either life or

death, without trying to pressure you, by talking it over

one more time and agreeing one way or another, and I'm

not suggesting any result, but if after trying one more

time you can't agree and it's still six/six, I will

instruct you to go ahead and sign that verdict form that

includes life imprisonment without parole for 25 years.

Is that understood?

Do the very best you can. God love you.

Thank you.

(Whereupon, the jury exited the Courtroom at 6:50

p.m.,after which the following proceedings were had: )

THE COURT: Okay, everyone be seated for a minute.

I understand both sides position, but for the

Appellate Court, whether it be the Third District or

Supreme Court, I want them to understand my feelings whic!

is basically that in the moments that are before the

Court, I have to make fast decisions. I don't have the

ability like an Appellate Court does of taking six months

to decide what should be done, you know, embanked with a

lot of briefs. I got five minutes or ten minutes to try

to decide what is right.

I don't know what the law is. It appears from the

statute it should be a majority, but the charge says six

Or more is life, so what I have tried to do, ae

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Seuse M18 Beceyne Bidg {19 W. Flagler Street / Miami, Fla 33130

TE bw. 879.476

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Official Cirewst Court Reporter

Suue: 918 Biscayne Bldg /19 & Flagler Street / Miami, Fle

7T 74 476

JOSEPH S. SCHWARTZ & ASSOC., INC.

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t Stanc trial whenever it reason-

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that a defendant meets the standar

f competencv. §918.15, Fla.Stat.

1979 Fla.R.Crim.P 7 2 (1979

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To ceamn) i ar o} bh + mma a ¢ 4 eirari +

i lLliance wi tne at e-enumerate criteria, tne

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trial court c cted a full hearing prior to the trial as

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t the issue of whether or not Appellant was co etent ¢t

stand trial (See R. Exh. 51-102). The record demonstrates

that subdstantial, competent evidence was adcuce at said

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nearing t Support tne trial court s ultimate finding if

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Criai court ¢ sicere tne eleven criteria er erate ir

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Rule 3.211 Fla.R.Crim.P. and found Appellant competent t

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The issue which is actually presented is whet! t —

affirmative defense of insanity at the time of the ff

(as opposed to competency to stand tria

whether the burden was ever shifted t

the State requiring proof of sanity at the time of the

ffense.

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T} poomndl 2 eoenawtean . — —F esnetitutionally remain

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at aii times c tne cGeftendcant. > y V. ve, y 4° é

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evidence necessary to constitute sufficiency for

submitting the issue of sanity to a jury; instead

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must be decided on its own facts, with careful attention to

the weight of the evidence presented on both sides.

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substantive law as to the burden of proving

case the issue of a defendant's sanity is for the jury,

be determined from al

Davis, 513 F.2d 320 (Sth Cir. 1975). This language makes it

clear that an affirmative defense is a defense which must be

raised. Thus, any presumptions which attach as to the issue

will not be invoked until such an issue is actually raised.

Florida law has always required some quantum of evi-

dence prior to shifting the burden of proof as to sanity at

the time of the offense to the State. The Florida standard

for sanity at the time of the offense is the ability to dis-

tinguish right and wrong, the M'Naghten test. Ferguson v.

State, 367 So.2d 631 (Fla. 1982); Zamora v. State, 361 So.2d

776 (Fla. 3d DCA 1978). A defendant's sanity at the time of

the offense is a factual question for the jury. Fere t

ra at 435. See also Eason v. State, 421 §& ¢ 35, 3/7

(Fla. 3d DCA 1982). Thus, the issue becomes a fact questi

as to a defendant's affirmative defense.

The burden of proving insanity is on the defendant

because he is presumed sane under the law. When he rebdut

the presumption of sanity by presenting evidence f insanit

sufficient to raise a reasonable d t, the burden ther

shifts to the State to prove sanity beyond the re t (

a ibt Johnson v. State 408 S .2¢ 813 3 2. 2 Fl 4d

t 198. see also, Brock v. State, 69 So.2d 344 (Fla.

1954). Once there is testimony sufficient to present ;

reasonable doubt as to sanity at the time of the ffense

the presumption vani and the burden is shifted. Ses

Blatch v. State, 216 So.2d 261 (Fla. 3d DCA 1968). Where

defense evidence is insufficient to create a reasonabl

doubt as to sanity at the time of the offense, the presump-

tion of sanity will not be overcome. Trotter v. State 37

d that at least some

United States v. Henderson

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PhO

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W~—

ates v. Coffman, 567 F.2d

960 (10th Cir. 1977)

- '

Regardless of the amount of evidence which is needed t

shift the burden of proof, an affirmative defense is clearly

involved. The issue will not be presented where there is

absolute no evidence is raised before the jur A defen-

dant is not entitled to a covert ruling on the minimal suffi

ciency of the prosecution's evidence as to a defense that

the accused has not placed in issue United States '

Mvers, 692 F.2d 823 (2d Cir. 1982 This is especially true

in light of the fact that the defense of insanit ca de

waived See Scarborough v. United States, 683 F.2d 1323

(11th Cir. 1982).

It is true that a prior adjudication of insanity can be

evidence of insanity See e.g. Boone v. State, 183 So.2d

869, 871 (Fla. Ist DCA 1966 Hixor State, 165 So.2d 436

439 (Fla. 2d DCA 1964 Yet the jury must be presented with

some evidence tc this effect. In fact, the jury instruction

as to insaricy clearly notes that if the evidence estab-

lishes that the defendant had been adjudged insane by a

court, and restoration of legal sanity has not occurred, the

jury should assume that the defendant was legally insane at

the time of the commission of the alleged crime, unless the

evidence convinces the jury otherwise. See, 3.04(b), Florida

Standard Jury Instructions.

oo]

ultimate issue so as to shift the burden of proof to the

Moreover, the evidence adduced pursuan

tency hearing (R. Ex. 50-100) as well as the

reports of the appointed doctors (See R. 55

demonstrate that had Appellant raised the issue of insani

the State could have easily rebutted any presumption whic

may have followed. Even the defendant's girlfriend test

fied that Appellant felt he would be able tu basically foc

examining physicians. (See R. Exh. 90). The record does

demonstrate that had defense counsel sought to actually

Ccieariy

raise an insanity defense, there would have been affirmativ

evidence to support said theory of defense. Based upon t

r, it is unlikely that faiiure to raise insanity as

defense could be asserted as grounds for a ineffective

assistance of counsel claim, see Holmes v. State, So.2d

(Fla. 1983)(Case No. 61,672; Opinion filed February 3, 19

his

The decisions which Appellant has relied upon are not

controlling, as they are by the most part based upon the

burden which the State bears as to competency to stand

trial, not as to the burden of proof as to sanity at the

time of the offense. It is apparent, that older decisions

of Florida courts used the terms "“incompetency” and

I hereby certi

and that I served t

Certiorari on respo

mail, first class m

All parties re

tni

s (s day of

CERTIFICATE OF SERVICE

fy that I am a member of the bar of this Court

he annexed Apperdix to the Petition for

ndent by placing a copy in the United States

ail, postage prepaid, addressed as follows:

Calianne Lantz, Esquire

Assistant Attorney General

Office of the Attorney Genera]

401 N.W. 2nd Avenue, Suite 82

Miami, Florida 33128.

Juired ¢t be served have bes served. Done

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