# Appendix — Robert Patten v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0854%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 474 U.S. 876 ## Text 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 eal 7 ad ~_ —_ = rrr 6797 «6 i. oben 4 ——> Yon up > + oe ~~ e Ye i) oe & be ar ° 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 - ee 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 i 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 -5- 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 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 a ‘ a is — a z - Search warrant was insufficient to establish probab Gisagree. The affidavit was sufficient to establish probable ab 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 , iy n , 4 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, 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. II 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 cr w oO 0 2) c - 5 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. nn co @ 3 o - 2) 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. (F 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. N @ ° ~ 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 " o te) yi cr + J w 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. 4 ? t is difficult to find cases of recent origin on point. ~ Ww 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 ui ~ Ww Mur. 571 (1819). a “n established that the trial court must record the verdict firs cn 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 « ee 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 4 (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. m4 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 | . - n court abused its dis- © vi o 7 2 4 - ; - © @ as - D - ry os 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 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 ee 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, ox 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 2 { 3 . S 6 7 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! JOSEPH S. SCHWARTZ & ASSOC., INC. Bs Official Cirewit Court Reporter Suse. 918 Biscayne Bldg jis Nw Flagler Street /Miams Fla 33140 Telephone 379.475) O174V } ! we all, the majority andthe foreperson again Signing it. we to 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. i 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 e > in 7 ert ca do as ar I > tr I e@eiiate ( ITT u Ie 7 ta } Ir I Y Giving the dead] K charge, it On enybody and I tried to modif € € 24T1ON aS ODT eda ¢t a ve g°ing to follow wha the jury s nhink in this way I protected jy ly x 1 KNOY. if they got a six FONG, you got the appellate reco come back and say it was six/si r got and then I would protect the > : " } T Oot knowing what the law is, I ha } F " * for bo Sides in my acti Official Cirewst Court Reporter Suue: 918 Biscayne Bldg /19 & Flagler Street / Miami, Fle 7T 74 476 JOSEPH S. SCHWARTZ & ASSOC., INC. J a € rite / zit ‘ + r , ‘ y I i é } , ¥ Ww, ' } ‘ + c wi » + T I 4 + + EXHIBIT G nn 0 ® i.) 9 and c is reas 3 e dcderpree Of rational uncer st he has a ra- i tior ual under- dines against hin Stratec 26 ’ - ™ . - Cc i P . 788, 789 id L E nev Ces e 228 O¢ 7 5 yd in rde s, it is the resp trial court t Cc h Or competenc t Stanc trial whenever it reason- a iY appears necessary tc ensure ° ; that a defendant meets the standar f competencv. §918.15, Fla.Stat. 1979 Fla.R.Crim.P 7 2 (1979 - & ‘ s > “+ & To ceamn) i ar o} bh + mma a ¢ 4 eirari + i lLliance wi tne at e-enumerate criteria, tne ale ) wo ° 4 - 77 iw o - } 4 s | - trial court c cted a full hearing prior to the trial as + + bh _ — 77 nan me _ 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 — r a “ar M ‘ 7 _ , | ~ i | "T nearing t Support tne trial court s ultimate finding if | ~ at ao _ 0 1) >| cr? ¢ - a ) i“ 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. I Patter nv. Ve rk 437 a % ’ °) 5 > > 110 S2 Y cA i 28 ) eh, Tl. ted Cer rec Suprems rt 1¢ lined t adopt as a nstitutior l impera > nar at at ewes ehar > at - ° ) . | é ive ¢ wide f ; a ; is ‘ b : ‘ joubt every { tc ritutins ' , } ffir . , leofoence related t th; slovak lit . , Daerrear ’ e ¥ makes . ear that . . . -- . , e the eaece eh, } : C os ’ e ‘ ele é r t é j é 4 é L€ eie > set + ¥ + - - . ‘ 4 - > . - ° t | 1 7 , ~} | . Th ° , . —_— . y ~ 1 Ped 4 d C A ° | ° Ane ite | Dé ‘ Lace the ~ : ar . ¢é Saye jofence , as st se. LI ay r Nareh ¢ i , c Q7 ’ ) er ° ‘ Lar ii 2 S54 . » & | . o d -¢ 7.7 ST = a : . . ; 277 A c a 7 ni ¢ V« ve ¢ € +2 . . ~ , 26 c T } 1¢ 107; Js;emiecrsingo for want’ of _ 3 . c% a c 4 . 4 i c - —~e 4 ] fe er | esti - 2 ae . Del. Q : ; . . - ‘ T nd Or y 2/2 79 7 c - ] 7: r | ) ae . ‘ r ,-* . . 4 . « , we . ) ~ . c " meritueiar ; - ase o oat ’ aa ait , > 4 > U es nN XX » ca a + ace & a & a heceodan ahi fe 4 arin ala - jecvye of crimina c . ¢ DUI Li i prit lt € @) LSSUE & Ges a inai apaci ° T} poomndl 2 eoenawtean . — —F esnetitutionally remain Ane irc OL proving insanit could mstitutionaiiy emai } rim 7 ‘ + é nafhan? " , wT. 679 5 A q * ) at aii times c tne cGeftendcant. > y V. ve, y 4° é ( Cir os } 3 ) i. io , _ ow (¢ iv. 982 land v. Oregon, supra. cr ~y w o. - m < m a | a @ rt , 3 @ 2 ¢ ; ~ “ourt stated that i wn” evidence necessary to constitute sufficiency for submitting the issue of sanity to a jury; instead 0. ® ist) '.) J ie] i) must be decided on its own facts, with careful attention to the weight of the evidence presented on both sides. rey ¢ | j + -~ o® substantive law as to the burden of proving co 2) 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 ri} ho a. ea) wr Oo “-™ o r? aa a 4 se) @ PhO — _ | ~ r? 1 a. W~— r? 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 r 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. b. oo] as ultimate issue so as to shift the burden of proof to the ct + ° + 1 m 2) ° 7 0 a Moreover, the evidence adduced pursuan 77 | tency hearing (R. Ex. 50-100) as well as the Ww uw uw 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 a 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 Nm a) A. I hereby certi and that I served t Certiorari on respo : mail, first class m All parties re tni 4 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0854%3A3. Public record. Not legal advice.