Petition — ROUTLY v. FLORIDA (No. 83-6405)

Supreme Court brief1983

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No. A-610

83 -

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

DAN EDWARD ROUTLY,

Petitioner,

OR:G:NAL .

STATE OF FLORIDA,

Court, U.S.

Respondent. FILED

mag 12 84

plevon fer L. Stevas. Clerk

—_——

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

RAYMOND L. GOODMAN

112 South Lake Avenue

Orlando, Florida 32801

(305) 423-2100

Attorney for Petitioner

QUESTIONS PRESENTED

I. Whether the Petitioner's conviction for first degree murder

was impermissibly tainted by the trial court's admission of an

involuntary confession in violation of Petitioner's Fifth and

Fourteenth Amendment rights?

II. Whether a death sentence imposed on the basis of secred

non-statutory aggravating circumstances in a presentence invest-

igation report denied due process of law and subjects a defendant

to cruel and unusual punishment?

III. Whether in affirming Petitioner's death sentence, the

Supreme Court of Florida has adopted such a broad and vague

construction of the standards governing the propriety of a death

sentence imposed over a jury verdict of life imprisonment so as

to violate the Fifth, Seventh, Eighth and Fourteenth Amendments?

IV. Whether a trial judge's overriding a jury's factually based

decision against the death penalty must, in all cases, violate

the Fifth, Seventh and Fourteenth Amendments to the Constitution

of the United States?

"ay

€

——— ee

TABLE OF CONTENTS

Page

Questions Presented eeeeeoeveeeeeoeveeeveeeeene eee @ eeeeeeveeveeveeveeeveeeeeee i

Authorities Cited. eeeeeseevoeevee eee ese eeseeeeeeneeeee2e0020808 “ee ee iii-v

Citations to Opinions BELOW... cece cece cece eerrnereeeneees l

JTUTLSAGICCION. ccc cee eer ee reese essseeseseseseseeseeseeessseee l

Constitutional and

Statutory Provisions INVO] VEG... .ee cece eee rene ereneeees 2

Statement of the CORO cccceceeseeeeeeseeeeses *“eeeeeeeeneeneeeee 2-5

Reasons for Granting the Writ

I. PETITIONER'S CONVICTION FOR FIRST DEGREE

MURDER WAS IMPERMISSIBLY TAINTED BY THE TRIAL

COURT'S ADMISSION OF AN INVOLUNTARY

CONFESSION IN VIOLATION OF PETITIONER'S FIFTH

AND FOURTEENTH AMENDMENT RIGHTS....-+e-+++eeee05 -- 6-10

II. A DEATH SENTENCE IMPOSED ON THE BASIS OF

SECRET NON-STATUTORY AGGRAVATING CIRCUM~

STANCES IN A PRESENTENCE INVESTIGATION REPORT

DENIES DUE PROCESS OF LAW AND SUBJECTS A DE-

FENDANT TO CRUEL AND UNUSUAL PUNISHMENT......++-+- 11-14

III. IN AFFIRMING PETITIONER'S DEATH SEN-

TENCE, THE SUPREME COURT OF FLORIDA HAS

ADOPTED SUCH A BROAD AND VAGUE CONSTRUCTION

OF THE STANDARDS GOVERNING THE PROPRIETY OF A

DEATH SENTENCE IMPOSED OVER A JURY VERDICT OF

LIFE IMPRISONMENT SO AS TO VIOLATE THE FIFTH,

SEVENTH, EIGHTH AND FOURTEENTH AMENDMENTS......--- 15-20

A. This case presents a significant

federal question.

B. The jury's sentencing verdict of

life imprisonment was reasonable.

C. Conclusion: The jury, not the judge

acted reasonably and constitutionally.

IV. A TRIAL JUDGE'S OVERRIDING A JURY'S

FACTUALLY BASED DECISION AGAINST THE DEATH

PENALTY MUST, IN ALL CASES, VIOLATE THE

FIFTH, SEVENTH AND FOURTEENTH AMENDMENTS TO

THE CONSTITUTION OF THE UNITED STATES....-++++++- 21-27

A. The nature of the decision on death.

B. The myth of judicial expertise

in capital sentencing.

C. National practice.

D. Professional legal opinion.

E. Conclusion.

CONCLUSION... ccccccressesseesesesssressesesssesessssseesese 27

AUTHORITIES CITED

Cases Cited Page

Andres v. United States, 333 U.S. 740 (1948).......4.-. ccccccs 26

Barclay v. State, 343 So.2d 1266 (Fla. 1977), cert. deniel,

G39 U.S. O92 (197TB).ncccccsccccccccecs TTTTTTT Tr ecccccceses &9

Barclay v. Florida, U.S. ___, 103 S.Ct. 34°98 (1983)... passin

Barfield v. State, 402 So.2d 377 (Fla. 1981).....-+eee- coece |9

Beck v. Alabama, 447 U.S. 625 (1L9OBD).. cece ween eenveeneevcece 23

Bran v. United States, 178 U.S. 532 (1897). .cceeceeeeeececes 8

Brewer v. Williams, 430 U.S. 387 (1977) .ceeceeeeeenesvvccees 8

Brown v. Illinois, 422 U.S. 590 (1975S ).ceeneeeeenneveecccces 8

Brown v. State, 367 So.2d 616 (Fla. 1979). cceeeneeeceeeccees 15

Buckrem v. State- 355 So.2d 111 (Fla. 1978)... ceeeeeeecceves 15

Buford v. State, 403 So.2d 943 (Fla. 1981), cert. denied,

Ue Se de 102 S.Ct. 1037 (1982)... eee ween eeeceveees 15

Burch v. State, 343 So.2d 831 (Fla. 1977 )eeeeeeeeeeeceeccncs 15

Chambers v. State, 339 SO.2d 204 (1976). eeeeeereenecercces as

Coker v. Georgia, 432 U.S. 584 (1977) wc cece eceeeeccecveeeces 23

Dobbert v. State, 375 So.2d 1069 (Fla. 1979), cert. denied,

447 U.S. 912 (1980)... cece cece eecenececvens TeeTTeTT coce LS

Dobbert v. Florida, 432 U.S. 282 (1977) .cneeeeeeeeneecencces 16

Douglas v. State, 328 So.2d 18 (Fla.), cert. denied,

429 U.S. B71 (1976). ccc wee ceccnceereneeensessessees coccces BF

Douglas v. Wainwright, F.2G _s, - (llth Cir. 1983)..... 21

Duncan v. Louisiana, 391 U.S. 145 (1968)... eeeeeevvcees coe 25

Frazier v. State, 107 So.2d 16 (Fla. 1958)... seeeeesececs - 8

Furman v. Georgia, 408 U.S. 238 (1972)...eeeeeeeeees TTTTTT + passim

Gardner v. Florida, 430 U.S. 349 (1972). .cceeeeeeeeees eeeeeee Passim

Godfrey v. Georgia, 446 U.S. 420 (1980)....--eeeeee- TrTTrT » 417

Goodwin v. State, 405 S0.2d 170 (Fla. 1981l).cccceeeeeeevcces 15

Gregg v. Georgia, 426 U.S. 113 (1976)...... ee ccccseceseseces os

Harrison v. State, 12 So.2d 307 (Pla. 1942)...ceeeeeeeeeeeee 9

Hoy v. State, 353 So.2d 826 (Fla. 1977), cert. denied,

TFS O.B. 920 (1ST). ccccccccersrccccccsccscccccsecesccsece BF

Jarriel v. State, 317 So.2d 141 (Fla. 4th DCA 1975).......+. ° 9

Johnson v. State, 393 So.2d 1069 (Fla. 1980), cert. denied,

U.S. __» 102 S.Ch. 364 (1981)... cee eeeeeeeeeeeeeee LS

Jones v. State, 332 So.2d 615 (Fla. 1976)...eseeeeeeeeeeeeee 15 |

— ee

-iii-

;

Lockett Vv. Ohio, 438 U.S. 586 t) zu, ) BPPEPTTeLIrTreririireiririiii 22,23

Malloy v. State, 382 So.2d 1190 (Pla. 1979)...eeeeeeeeeees coos 3S

McCaskill v. State, 344 So.2d 1276 (Fla. 1977)...... cocsccccce AF

McKennon v. State, 403 So.2d 389 (Fla. 1981)... ceeeeeeeececess - 15

M.D.B. v. State, 311 So.2d 399 (Fla. 4th DCA 1975).....+06-. oe 9

Miranda v. Arizona, 384 U.S. 436 (1966)... cc eee eeeeeceecveces 6

Neary v. State, 384 So.2d 881 (Fla. 1980)... ..2ee cee ecencvvcess 15

Odom v. State, 403 Fla. 1d 936 (Fla. 1981), cert. denied,

Ue Se ___deg 102 S.Ch~ 1970 (1982). cee eee ee eccererccees 15

People v. Fitzpatrick, 308 N.¥.S.2d 18 (1970)... eeeeeeeeneceess 24

Phippen v. State, 389 So.2d 991 (Fla. 1980)....-ceeeeeeeeceees 15

Proffitt v. Florida, 428 U.S. 242 (1976) .ccceeeeeececceeeccces passi

Provence v. State, 337 So.2d 783 (Fla.), cert. denied,

$31 U.S. 969 (1976). ccc cc w ene e eee rereeerresesseseeeeseseees 15

Reddish v. State, 167 So.2d 858 (Fla. 1964) ....-eeeeeeeveecees 8

Roberts v. Louisiana, 428 U.S. 325 (1976)... eeeeeeeeneneeccees 23

Routly v. State, 449 So.2d 1257 (Fla. 1983)... eeeeeeeceevcees 5,7,1

Shue v. State, 366 So.2d 387 (Fla. 1978)..ceeeeceucesecccecees 15

Smith v. State, 403 Fla. 2d 933 (Pla. 1981)... eeeeeeeeeeeecs 15

Stokes v. State, 403 So.2d 377 (Fla. 1L9BL). ccc ceee eee enevccees 15

Swan v. State, 322 So.20 465 (Pla. 1975) ..cceeeceseeeevccccees 15

Tedder v. State, 322 So.2d 908 (Fla. 1975)... -eeeeeeeeeeveveves pass}

Thompson v. State, 328 So.2d 1 (Fla. 1976) ..ceeweneeeececccces 15

Welty v. State, 402 So.2€ 1159 (Fla. 1981)... eee eeeecececcess 15

White v. State, 403 So.2d 331 (Fla. 1981)... eeeeeeeees cocccce 15

Williams v. State, So.2d 538 (Fla. 1980)... c eee ene nnneecccccess 15

Witherspoon v. Illinois, 391 U.S. 510 (1968)... eeeeeeeeecces 22,24

Woodsen V. North Carolina, 428 U.S. 280 (1976).....eseeeee8- eo 2

Zeigler v. State, 402 So.2d 365 (Fla. 1981), cert. denied,

U.S. 9102 S.Ct. 1739 (1982)... ce we cece ee eerceccenss 15

Statutory Provisions

Ga. Code Ann. SLI-LO—30(D) (7). cece eee e er ewww ee ee enews eseeeees 17

Other Authoities

Comment, Jury Discretion and the Unitary Trial Procedure

in Capital Cases, 26 Ark. L. Rev. 33, 52-53 i

The Courts, President's Commission on Law Enforcement and

Administration of Justice: Task Force Report, p. 26........ 23

S. Gillers, Deciding Who Dies, 129 U. Pemn. Le. cueeeeeceeeccee 23

Kalven and Zeisal, The American Jury p. 445 (1966)............. 25

La Font Assessment of Punishment -- A Jucge or

Jury Function, 38 Texas L. Rev. 634, EL Seee écaceddvnesus Oe

Leibman and Shepard, Guiding Capital Sentencing Discretion

Beyond the “Boiler Plate? Mental Disorder as a Mitigat-

ing Factor, 66 Georgetown L.J. 757, 819 (1978)...... Socneane 26

Mannheim, The Capital Punishment cases; A Criticism of

Judicial] Method, 12 Loyola of Los Angeles L. Rev. 85,

FOSS Ge Gee. aeetedécnecedectassbdedaeses TTTTTT TTTTITTT rT 26

A.L.I., Model Penal Code, §210.6 and Commentary at

See Geese See eotticass cundeducddecssssecsndsskenunians ooo

Note, Jury Sentencing in virginia, 53 Virg. L. Rev.

CESGESe COUNT USe FeCeeraneesoecédcedbusseeéoebceenedenenenuln 25

Report of the Royal commission on Capital Punishment,

PVG CORN SNS 5 626 46bnbhbbbedeesesebebeehaesennneesceselne 25

Rubin, The Law of Criminal Correction, p.375......cccceccecccces 25

Shapiro, First Degree MUrder Statutes and Capital

Sentencing Procedures, 24 Loyola L. Rev. 709,736 and

VEST COPUNTCCCSCé Ces ebarcenduend 6660 enbtemaebboneeesaens - 26

Symposium on Capital Punishment, 7 N.Y.L. Forum 249,

SO OSD COONS 0000056608685 60800600066500660406450RsR Oe 26

Togman, The Tow-third System in Capital Cases,

De GeUupene Eve GOs VO Veeelebhdtesséennesncosdesnenn coce 2455

Wollan, The Death Penalty After Furman, 1974

Crim. Justice Systems Rev. 213, 2309s cccccccccccccccccecs «++ 26

No. A-610

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

DAN EDWARD ROUTLY,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Petitioner prays that a writ of certiorari issue to review

the judgment of the Supreme Court of Florida filed on

September 22, 1983.

CITATION TO OPINIONS BELOW

The opinion of the Supreme Court of Florida, Case No.

60,066, is reported at 440 So.2d 1257 (Fla. 1983) and is set out

in Appendix A.

JURISDICTION

The judgment of the Supreme Court of Florida was filed on

September 22, 1983, and rehearing was denied on December 12,

1983. See Appendix B. Jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1257(3), Petitioner having asserted below

and asserting herein deprivation of rights secured by the

Constitution of the United States. The Honorable Lewis F.

Powell, Jr., Associate Justice of the Supreme Court of the United

States, issued an order extending the time within which to file

this petition to and including March 12, 1984.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Fifth, Seventh, Eighth and Fourteenth

Amendments to the Constitution of the United States. It further

involves Section 921.141, Florida Statutes (1977), entitled

"Sentence of death or life imprisonment for capital felonies;

further proceedings to determine sentence." Because of its

length, the statute is set out in its entirety in Appendix C.

STATEMENT OF THE CASE

On June 23, 1979, a body was discovered in a field in Marion

County, Florida (R-647).! Dental records identified the decedant

as Anthony Bockini (R-760), and an autopsy suggested gunshot

wounds as the cause of death (R-733).

Petitioner was arrested as a suspect wanted for questioning

and for unspecified criminal charges on December 5, 1979 in

Flint, Michigan in the early morning hours (R-981). Police

officers testified that they learned about Petitioner from a

statement given by Petitioner's girlfriend/accomplice, Colleen

O'Brien, who was pregnant with Petitioner's child (R-982).

After arrest Petitioner was questioned separately by Florida

and Michigan authorities (R-202). He has testified that he does

not recall being Mirandized prior to the questioning (R-259).

Petitioner testified that he admitt°d giving the confession but

later retracted it, stating that it was given in exchange for the

promised release of Ms. O'Brien and the promise by police

officers that he would be prosecuted only for the lesser offense

of second degree murder if he confessed (R-260-1). The police

officers testified that they made no such promise to Petitioner

(R-242). At 2:17 p.m. the same day Petitioner waived extradition

on the charge of second degree murder, and at 4:00 p.m. that day

an information was filed in the State of Florida charging

Petitioner with the offense of second degree murder (R-2,98-101).

Colleen O'Brien was releaseu from custody shortly after

Petitioner gave the confession (R-254).

The symbol "R" will be used herein to refer to the transcript

of trial proceedings and the record-on-appeal in the Florida

Supreme Court below. The symbol "SR" will be used herein to

refer to items in the supplemental record.

The Petitioner was transported to Marion County, Florida

that evening. On December 8, 1979, the Marion County Grand Jury

was specially convened and arned an indictment against

Petitioner for first degree murder (R-l-7).

Petitioner's trial commenced July 14, 1980, before the

Honorable Carven Angel, Judge of the Circuit Court of the Fifth

Judicial Circuit of Florida in and for Marion County. The

State's chief witness was Colleen O'Brien who was given immunity

for her testimony (R-923). O'Brien testified that she and

Petitioner had traveled to Florida together and had found work in

a town near Ocala (R-878). Thereafter the two experienced

domestic difficulties and O'Brien was picked up as a hitchhiker

by Anthony Bockini on one of several occasions she left Peti-

tioner. O'Brien testified that she stayed the night with Bockini

on one occasion, became frightened when he made advances, return-

ed to Petitioner to whom she related her fear (R-932-33). O'Brien

testified that she returned to Bockini's residence several days

later because she had "no where else to go." (R-936).

O'Brien testified that on the second occasion she staved

with Bockini th~ Petitioner came to the house in an attempt to

reconcile with ner (R-940). O'Brien testified that while the two

were there, Bockini t1v#turned unexpectedly, that Petitioner

started to leave and then apparently confronted Bockini with a

weapon, tied him up, and placed him in the trunk of Bockini's

vehicle (R-892). O'Brien testified that the three then left in

Bockini's vehicle until the tail lights of the vehicle became

inoperative (R-894). O'Brien testified that Petitioner then told

her to get out of the car with him, that she “heard a bunch of

shots" and that she and Petitioner dragged Bockini's body into a

field (R-894-96). According to O'Brien the two then fled the

State of Florida in Bockini's vehicle (R-897).

When the State sought to introduce Petitioner's tape record-

ed confession, Petitioner renewed the objections he had tendered

at his pretrial suppression hearing concerning its admissibility

(R-987, 199-272). Nevertheless the confession was admitted as

evidence in the State's case in chief (R-1031).

The jury convicted Petitioner of first degree murder (R-

1180). Immediately thereafter advisory sentence proceedings were

commenced with the State presenting evidence in aggravation

followed by the Defendant's presentation in mitigation (R-1189-

1204). The jury deliberated approximately one hour before

returning its advisory verdict of life imprisonment (R-1225).

Judge Angel thereafter ordered the Department of Corrections to

prepare a presentence investigation report prior to sentencing

(R-1229).

Sentence hearings were held on September 15, 1980 and on

November 24, 1980 (R-1249-1309). At the first sentence hearing

Petitioner was provided with copy of the presentence

investigation report prepared by the Florida Department of

Correctic s (R-1250). No evidence was presented at either

sentence hearing.

At the close of the second sentence hearing Judge Angel

announced that upon consideration of the evidence presented at

trial, the evidence presented at the separate sentence proceeding

on the issue of penalty, the jury advisory sentence, the

presentence investigation report prepared by the Florida

Department of Corrections, and the statements and recommendations

of counsel for the Defendant and the State, the Court finds that

the capital felony was committed while the Defendant was engaged

in the commission of kidnapping, that the capital felony was

committed while the Defendant was engaged in flight after

committing a burglary, ths* the capital felony was committed for

the purpose of avoiding or preventing a lawful arrest, that the

captial felony was committed ‘hile the defendant was engaged in

the commission of a robbery and while the Defendant was engaged

in ‘light after having committed a robbery, and therefore the

capital felony was committed for pecuniary gain, that the capital

felony was especially heinous, atrocious and cruel, and that the

capital felony was a homicide and was committed in a cold,

calculated and premeditated manner without any pretense of moral

or legal justification (R-1303). Judge Angel further announced

that he found no mitigating circumstances and therefore sentenced

Petitioner to death by electrocution (R-1306).

Petitioner appealed the conviction and sentence to the

Florida Supreme Court, which affirmed, Routly v. State, 440 So.2d

1257 (Fla. 1983). Petitioner then filed in this Court for

certiorari review.

I. PETITIONER'S CONVICTION FOR FIRST DEGREE MURDER WAS IMPER-

MISSIBLY TAINTED BY THE TRIAL COURT'S ADMISSION OF AN INVOLUNTARY

CONFESSION IN VIOLATION OF PETITIONER'S FIFTH AND FOURTEENTH

AMENDMENT RIGHTS.

The issue presented here requires resolution by this Court

because it was decided below in a manner inconsistent with this

Court's pronouncements in Miranda v. Arizona, 364 U.S. 436

(1966), and its progeny. The federal question directly involves

the constitutional dangers addressed in numerous decisions of

this Court concerning the admissibility of compelled self

incrimination in state court criminal prosecutions.

The admission and use of Petitioner's tape recorded confes-

sion in this conviction and sentence of death is of added con-

stitutional significance because the confession contained the

sole evidence considered in support of two of the aggravating

circumstances upon which the death penalty was imposed.

The confession was given within an hour of Petitioner's

arrest as a suspect wanted for questioning and on unspecified

Criminal charges. At the time of Petitioner‘s arrest he was made

aware that his pregnant girlfriend was also in custody.

Petitioner was questioned separately by Florida and Michigan

authorities. He does not recall being mirandized prior to

questioning. Petitioner admitted that he gave police officers a

confession but later retracted the confession, stating that it

was given in exchange for the promised release of his girlfriend

and the promise that he would be prosecuted for the lesser

offense of second degree murder. The police officers testified

that they made no such promise to Petitioner.

It is undisputed that Petitioner's waiver of extradition

proceedings, held later that day, reflect the charge of second

degree murder, that a charging instrument alleging the charge of

second degree murder was later filed, and that Petitioner's

girlfriend/accomplice was released from custody shortly after

Petitioner gave the confession.

Petitioner timely moved to suppress the confession prior to

trial, and renewed his objection when it was proffered. The

confession was nevertheless admitted at trial and was no doubt

the most significant evidence of guilt in the State's case in

chief.

-6-

The Petitioner was convicted of first degree murder and at

the advisory sentence proceedings the State argued that the

murder was aggravated by evidence that the homicide was committed

during commission of a robbery and kidnapping, that it was

committed for pecuniary gain, that it was especially heinous,

atrocious or cruel, and that it was committed in a cold,

calculated and premeditated manner. The Petitioner thereafter

presented evidence of mitigating circumstances and the jury

returned its advisory verdict of life imprisonment.

Petitioner was sentenced to death approximately four months

later. The death sentence was imposed despite the jury verdict

on the basis of the court's finding of five aggravating circum-

stances and no mitigating circumstances. The five aggravating

circumstances alleged in support of the trial judge's findings

were that the capital felony was committed while the Defendant

was engaged in the commission of kidnapping, that the capital

felony was committed while Defendant was engaged in flight ater

committing a burglary, that the capital felony was committed for

the purpose of avoiding or preventing a lawful arrest, that the

capital felony was committed while the Defendant was engaged in

the commission cf a robbery and while the Defendant was engaged

in flight after having committed th- robbery, and therefore the

capital felony was committed for pecuniary gain, that the capital

felony was especially heinous, atrocious and cruel, and that the

capital felony was a homicide and was committed in a cold,

calculated and premeditated manner, without any pretense of moral

or legal justification. The Florida Supreme Court affirmed both

the conviction and sentence. Routly v. State, 440 So.2d 1257

(Fla. 1983).

Admission of the confession was contrary to this Court's

construction of the Fifth Amendment as incorporated to the states

through the Fourteenth Amendment, as well as to a number of

Florida State court decisions. This Court, as well as Florida

courts, have held that where the state seeks to use as evidence a

defendant's out of court statement resulting from custodial

interrogation it has the burden of proving (1) that Miranda

warnings were given; (2) that after complete Miranda warnings

were given, a waiver of said rights was made; (3) that the waiver

was voluntary, knowingly and intelligently made; and (4) that the

statement itself was freely -7¢ voluntarily made. Lego v_ Twomey,

404 U.S. 477 (1972), Reddish v. State, 167 So.2d 858 (Fla. 1964).

The above requireme.ts for admission presuppose that the

warnings, waiver and statement follow a lawful arrest, for if the

arrest is illegal, the statement must be suppressed

notwithstanding proof thz there was compliance with the fore-

going. Brown v. Illinois, 422 U.S. 590 (1975). The legality of

detention must be proven not to satisfy the Fifth Amendment

guarantee against self-incrimination, but rather to satisfy the

protection against unreasonable search aad seizure as guaranteed

by the Fourth and Fourteenth Amendments.

A waiver of the right to counsel and against self-iacrim-

ination cannot be presumed from a silent record, nor can waiver

be presumed by proof of the fact that a confession eventually

followed. Waiver of these rights cannot be proven simply by the

fact that the defendant answered questions, or that the silence

was bro*en any more than the validity of a search can be

established by the “fruit” it produces.

In Brewer v. Williams, 43C U.S. 387 (1977) this Court

defined the legal standards by which the state's proof must be

measured:

-..-that it was incumbent upon the state to

prove “an intentional relingquishment or

abardonment of a known right or privilege

(citations omitted)...that the right to

counsel does not depend upon a request by the

defendant (citations omitted)...and that the

courts indulge in every reasonable

presumption against waiver... (citations

omitted).

Since 1897 this Court has recognized that for a statement to

be admissible it must be freely and voluntarily given, not

obtained by any direct or implied promise, however slight, nor

obtained by the exertion of any improper in luence. Bran v.

United States, 178 U.S. 532 (1897), Frazier v. State, 107 So.2d

16 (Fla. 1958).

In order to prove that a confession is voluntary the state

must show that the confessor gave his statement with a fair

appraisal as to the use of the confession and the confessor'’s

true position with regard to that use. Harrison v. State, 12

So.2d 307 (Fla. 1942). An accused from whom a confession is

sought shou'd be free from the influence of either hope or fear,

and the confession must be excluded if the totality of the

surrounding circumstances were calculated to delude the accused

or to exert an undue influence ove: him. Jarriel v. State, 317

So.2d 141 (Fla. 4th DCA 1975), M.D.B. v. State, 311 So.2d 399

(Fla. 4th DCA 1975).

The State failed to meet its constitutional burden of proof

in the introduction of Pet tioner’'s confession. The totality of

the circumstances surrounding the confession made it inherently

untrustworthy as evidence in light of Petitioner's testimony at

the suppression hearing, particularly where the testimony was

corroborated by undisputed facts in the record. The undisputed

facts lend substantial credence to Petitioner's testimony that

the confession was given to secure the release of Colleen O'Brien

and in exchange for a promise of prosecution for a lesser

offense. Under the circumstances it should have been suppressed.

It is also noteworthy that the confession was the sole

evidence of at least two of the aggravating circumstances alleged

in support of the death penalty. There was no extrinsic evidence

in the record that a robbery or burglary accompanied the homicide

or that the homicide was committed for pecuniary gain. Accord-

ingly the confession would have been inadmissible, upon objec-

tion, for the purpose of establishing the corpus delecti of those

offenses if the offenses had been charged in a separate

indictment or as additional counts in this indictment.

Under the circumstances, consideration of aggravating

circumstances based solely on a defendant's confession raises

serious due process considerations. Our legal system has tradi-

tionally declined to base a criminal conviction solely on evi-

dence out of the mouth of the accused. It would seem therefore

that an even stricter standard should be followed where the state

seeks to use the information in support of a decision to impose

the death sentence.

Petitioner's conviction and sentence was fundamentally

tainted by the trial court's admission of the confession.

Accordingly, this Court should grant a writ of certiorari in

order to allow Petitioner to more fully develop the arguments set

forth within.

-10-

II. A DEATH SENTENCE IMPOSED ON THE BASIS OF SECRET NON-STAT-

UTORY AGGRAVATING CIRCUMSTANCES IN A PRESENTENCE INVESTIGATION

REPORT DENIES DUE PROCESS OF LAW AND SUBJECTS A DEFENDANT TO

CRUEL AND UNUSUAL PUNISHMENT.

The issue presented here requires resolution by this Court

because it was decided below in a manner inconsistent with this

Court’s pronouncements in Furman v. Georgia, 408 U.S. 238 (1972),

Proffitt v. Florida, 428 U.S. 242 (1976), and Gardner v.

Florida, 430 U.S. 349 (1972). The federal question directly

involves the constitutional dangers inherent in a death penalty

imposed on the basis of a presentence investigation report which

alleges secret non-statutory aggravating circumstances and where

the defendant is afforded no effective procedure to controvert

the allegations.

Advisory sentence proceedings were commenced immediately

after Petitioner's conviction for first degree murder. At these

proceedings both the State and Petitioner presented evidence with

regard to sentence. At the close of the proceedings the jury,

after deliberating approximately one hour, returned its advisory

sentence verdict of life imprisonment. Thereafter Judge Angel

ordered the Florida Department of Corrections to prepare a

presentence investigation report: and set sentencing at a future

date.

There were two sentence hearings, at the first of which

Petitioner an* his counsel were invited to review the presentence

investigation report and make commen-s thereon.

Petitioner's comments consisted of objections to the report.

The gist of the objections were that Petitioner had no effective

way to deal with the information in the report because it con-

Sisted of accusatory allegations concerning the offense and

Petitioner's backgrovnd, allegations that the Petitioner had

committed another offense while in custody subsequent to his

conviction, certain anonymous allegations concerning the Peti-

tioner's guilt in the instant offense, and the opinions of

prosecution witnesses and correction officers that the Petitioner

should be executed.

Approximately two months later Judge Angel held another

sentence hearing. As in the case of the first hearing, no new

-ll-

evidence was presented beyond the presentence investigation report

and the arguments of counsel. At the close of the hearing Judge

Angel pronounced the death sentence against Petitioner,

specifically stating that it was based on his consideration of

the evidence at trial and at the separate sentence proceedings,

the jury's advisory sentence, the presentence investigation

report, and the arguments of counsel.

Judge Angel specifically stated that he gave the presertence

investigation report consideration in his decision to impose the

death sentence. In fact it is reasonable to assume that the

presentence report was the primary factor responsible for Judge

Angel's decision since it cortained the only information which

differentiated his decision from that of the jury's.

In Gardner v. Florida, 430 U.S. 349 (1977), this Court

reviewed the practice of withholding portions of presentence

investigation reports in capital cases. In denouncing that

procedure this Court found that a procedure for selecting people

for the death penalty which permits consideration of secret

information relevant to the character and record of the indivi-

Gual offender fails to meet the need for reliability in the

determination that death is tho appropriate punishment as requir-

ed by Woodsen v. North Carolina, 428 U.S. 280 (1976).

Implicit in Gardner is the due process requirement that a

capital defendant be afforded a sentencing proceeding in which he

is given an opportunity to rebut or deny allegations offered in

support of the death sentence. Equally implicit is the

requirement that a sentencing court specifically disregard any

information offered in support of the death sentence where the

defendant is nut given such an opportunity, or the information

itself is of such a nature that the court can provide no

meaningful way for the defendant to rebut the information, or

where common sense dictates that the information is inherently

unreliable. Gardner, supra, p. 360.

There was no meaningful way for Petitioner to rebut the

information contained in his presentence report. Much of the

information was phrased in the style of accusatory disbelief;

thus, for example, the preparer of the report states that “sub-

ject claims to have married Judy Ann Ray on %-3-73" notwith-

Standing the fact that the marriage is verified in a latter pro-

tion of the same report. (SR-4). The same accusatory style

characterizes the rest of the information pertaining to Peti-

tioner’s background.

The “confident al evaluation” section of the report rises

from accusatory style to straight gossip. That section becins:

When this officer ir:erviewed subject he

completely denied any guilt concernina the

murder of Anthony Bockini. This officer has

no doubts concerning the subject's guilt as

he admitted in detail how he killed the

victim to investigators at the sheriff's

department. It has also been verified with

contact by a trustee at the Marion County

jail (who wished to remain anonymous due to

fear), that Defendant vividly told him in a

bragging manner how he killed Mr. Bockini.

(SR-6).

In the same confidential evaluation section the opinions of six

persons are offered who suggest that Petitioner should be

executed. (SR-6,7). One might assume that this was an attempt to

give Petitioner the benefit of an additional, informal jury trial

had not each of the six been a prosecution witness or a cor-

rectional officer.

It is difficult to see how a constitutional death sentence

could result from a proceeding in which the trial judge did not

specificaliy disavow any consideration of this report. Although

the confidential section was provided to Petitioner pricr to his

sentencing, there was no method by which Petitioner could

effectively deny the accusatory allegations since they were in

the nature of opinion or were derived from the secret sources

denounced by this Court in Gardner. Common sense dictates that

information concerning Petitioner which is derived from an

anonymous fellow inmate is inherently unreliable and should be

specifically excluded from any sentencing decision.

Yet not only did the trial court fail to exclude the report

from its sentencing decision, but specifically identified the

presentence investigation report in support of its consideration

to impose the death penalty. Under the circumstances Petitioner

-]3-

did not receive a constitutional sentence and this Court should

grant a writ of certiorari.

IIl. IN APFIRMING PETITIONER'S DEATH SENTENCE, THE SUPREME COURT

OF FLORIDA HAS ADOPTED SUCH A BROAD AND VAGUE CONSTRUCTION OF THE

STANDARDS GOVERNING THE PROPRIETY OF A DEATH SENTENCE IMPOSED

OVER A JURY VERDICT OF LIFE IMPRISONMENT SO AS TO VIOLATE THE

FIFTH, SEVENTH, EIGHTH, AND FOURTEENTH AMENDMENTS.

Florida trial courts override jury life recommendations with

some frequency. Because the issues raised in this petition have

occurred in the past and will continue to recur in future cases,

this Court should gran* certiorar..

Even assuming that Gardner v. Florida, supra, were not held

to apply to preclude the death sentence in this case as a matter

of law, a further issue of constitutional dimension ‘s presented.

That issue concerns the appropriate constitutional standards that

must govern a judicial decision to overrule a jury's life verdict

in Florida. The question presented in this case is whether

definition and application of the jury override should be left

solely to state law or whether the override is limited by the

United States Constitution. That question is especially crucial

where, as here, the decision to override the jury implicates the

serious dangers’ of unreliability identified in Gardner.

Petitioner will show that this Court's approval of Florida's

override strongly suggests that certain procedural safeguards,

2 See, e.g., Buford v. State, 403 So.2d 943 (Fla. 1981), cert.

denied, U.S. » 102 S.Ct. 1037 (1982); White v.

State, 403 So.2d 331 (Fla. 1981); Zeigler v. State, 402 So.2d

365 (Fla. 1981), cert. denied, U.S. , 102 §.C.. 1739

(1982); Johnson v. State, 393 So.2d 1069 (Fla. 1980), cert.

denied, Solls » 102 S.Ct. 364 (1981); Dobbert v.

State, 375 So.2d 1069 (Fla. 1979), cert. denied, 447 U.S. 912

(1980); Hoy v. State, 353 So.2d 826 (Fla. 1977), cert.

denied, 439 U.S. 920 (1978); Barclay v. State, 343 So.2d 1266

(Fla. 1977), cert. denied, 439 U.S. 892 (1978); Douglas v.

State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871

(1976); Goodwin v. State, 405 So.2d 170 (Fla. 1981); Odom v.

State, 403 Fla. ld 936 (Fla. 1981), cert. denied, U.S.

» 102 S.Ct. 1970 (1982); McKennon v. State, 403 So.2d 389

(Fla. 1981); Smith v. State, 403 Fla. 2d 933 (Fla. 1981);

Stokes v. State, 403 So.2d 377 (Fla. 1981); Welty v. State,

402 So.2d 1159 (Fla. 1981); Barfield v. State, 402 So.2d 377

(Fla. 1981); Phippen _v. State, 389 So.2d 991 (Fla. 1980);

Williams v. State, 38% So.2d 538 (Fla. 1980); Neary v. State,

384 So.2d 881 (Fla. 1980); Malloy v. State, 382 So.2d 1190

(Fla. 1979); Brown v. State, 367 So.2d 616 (Fla. 1979); Shue

v. State, 366 So.2d 387 (Fla. 1978); Buckrem_v. State, 355

So.2d 111 (Fla. 1978); McCaskill v. State, 344 So.2d 1276

(Fla. 1977); Burch v. State, 343 So. 2d 831 (Fla. 1977);

Chambers v. State, 339 So.2d 204 (1976); Provence v. State,

337 So.2d 783 (Fla.), cert. denied, 431 U.S. 969 (1976);

Jones v. State, 332 So.2d 615 (Fla. 1976); Thompson v. State,

328 So.2d 1 (Fla. 1976); Tedder v. State, 322 So.2d 908 (Fla.

1975); Swan v. State, 322 So.2d 485 ‘Fla. 1975).

-15-

adopted by the Florida Supreme Court but not followed in this

case, tre integral to che constitutionality of the override

authority. In effect, this Court's approval of the override has

bewn properly dependent upon the Florida courts adoption of some

limiting principle that would bring the override within the ambit

of constitutional acceptability. Although such a limiting

principle is in part a matter of “state law", failure to follow

that principle in this case resulted in deprivation of

fum@amental rights guaranteed of the federal Constitution.

A. This Case Presents a Significant Federal

Question

This Court has suggested that Florida's jury override is

constitutional on its face. See Barclay v. Florida, U.S.

' ’ , 103 S.Ct. 3418, 3425, 3427, 3428 (1983); id.

at » 103 S.Ct at 3426-3427 (Stevens, J., concurring); Dobbert

v. Florida, 432 U.S. 282, 295 (1977); Proffitt v. Florida, 428

U.S. 242 (1976). This Court's initial approval of the override

was not, however, unqualified; it was contingent upon Florida's

adherence to certain procedures governing administration of the

override.

In evalvating this Court's facial acceptance of the override

it is necessary to identify precisely what it is that makes

Florida's procedure constitutional. In every case where this

Court has had occasion to pass on the override, its approval has

been based, in large measure, upon the procedural protections

with which Florida has clothed its system. This Court in Proffitt

v. Florida and Barclay v. Florida quoted with approval the

principle adopted by the Florida Supreme Court in Tedder v.

State, 322 So.2d 908, 910 (Fla. 1975): “In order to sustain a

sentence of death following a jury recommendation of life, the

facts suggesting a sentence cf death should be so clear and

convincing that virtvally no person could differ." See Proffitt

v. Florida, 428 U.S. at 250; Barclay v. Florida, U.S. at

» 103 S.Ct. at 3425, 3427. More significantly, in Dobbert v.

Florida, this Court described the “exacting standards of Tedder”

as being a “crucial protection” that is “most important" to the

capital punishment statute of Florida. 432 U.S. at 296.

-16-

Though in some sense Tedder is a matter of “state law",

violation of Tedder in this case directly implicates rights

protected by the United States Constitution. Decisions cy this

Court approving the jury override strongly suggest that without

Tedder the override would create serious constitutional

aifficulties. Implicit in this Court's decision that a partic-

ular state procedure will staisfy constitutional requirements is

the crucial assumption that the state will follow that procedure.

In capital cases, it is precisely the clearly defined existence

cf and adherence to the state procedural rules that qualifies a

sentencing decision as nonarbitrary and thus constitutionally

permissible.

This Court validated a specific procedural scheme when it

approved the override in Proffitt. Because the limitations

imposed by Tedder make the override constitutional, ignoring

these limitations implicates the constitution. Failure to abide

by Tedder would result in the arbitrary imposition of the death

penalty in violation of the Eighth Amendment. Having stated in

Tedder that it will reject only those jury life recommendations

that are utterly unreasonable, Florida must adhere to that

standard.

The constitutional analysis urged by Petitioner is strik-

ingly similar to that employed by this Court in Godfrey v.

Georgia, 446 U.S. 420 (1980). The issue in Godfrey was whether

the aggravating circumstance delineated in Georgia Code. Ann.

§17-10-30(b)(7), upon which Godfrey's death sentence was based,

was applied in an unconstitutionally vague, overbroad and amibig-

uous manner. The Godfrey Court noted that it previously had said

that subsection (b)(7) was vague on its face but there was “no

reason to assume that the Supreme Court of Georgia will adopt

such an open-ended construction" of the statutory provision.

Gregg v. Georgia, 428 U.S. 113, 261 (1976). In Godfrey, this

Court concluded that the Georgia Supreme Court had in fact placed

a narrowing gloss on the statute and that such a reading made the

aggravating circumstance constitutiorally acceptable. 446 U.S. at

43l. But because in Godfrey's case the Georgia Supreme Court

-17-

failed to apply its limiting construction of the (b)(7) aggravat-

ing circumstance, this Court vacated the death sentence. This

Court has thus recognized that in 2valuating state procedures

designed to meet the mandates of the Eighth Amendment, the line

between “federal law” and “state law” is at times difficult to

discern.

Similarly, if Floxida's override is constitutional, it is so

only by virtue of Tedver. In the present case, however, Tedder

was not followed. The iower courts failed to follow the Tedder

standard in overriding and in approval of that override by

omission of any consideration of the reasonableness of the jury's

life verdict. Neither the state trial judge who overrode the

jury nor the Florida Supreme Court that affirmed the sentence

found that “virtually no reasonable ferson could differ" over the

necessity of the death penalty in this case. Instead the courts

simply found that there were facts that supported the imposition

of death. By ignoring the reasonable basis for the jury's

verdict, the Florida Supreme Court has inconsistently applied its

jury override standards, resulting in such a vague and overbroad

construction so as to violate settled constitutional precepts.

The jury's life verdict in this case was reasonable, and hence

the imposition of death, over that reasonable jury verdict,

violated the Eighth Amendment. As Petitioner demonstrates below,

reasonable persons could and did differ over whether DAN EDWARD

ROUTLY should live or die.

B. The Jury's Sentencing Verdict of Life

Imprisonment was Reasonable

A review of the evidence presented at trial and at the

advisory sentencing proceeding reflects that the jury verdict of

life imprisonment was reasonable. Actually such a decision is

subjective and therefore incapable of precise definition. But the

circumstances of this homicide were not so heinous that

reasonable men would conclude that only death was the

appropriate punishment.

A factor which may well have been significant to the jury is

the fact that most of the evidence of the accompanying felonies

argued in support of aggravation were derived solely from the

-18-

Petitioner's tape recorded confession and were not corroborated

by other evidence. ?

It is reasonable to assume that the jury

intuitively adopted the evidentary rule which requires extrinsic

evidence of corpis deiecti prior to admission of a confession and

therefore treated the accompanying felonies and the allegation

that the felony was committed for pecuniary cain as a single

aggravating circumstance.

The other aggravating circumstances were simply not proven

beyond a reasonable doubt. For example, that the homicide was

committed for the purpose of avcidina or preventing a lawful

arrest or effecting an escape from custody was not supported by

any evidence presented at trial and the jury may wel! have

declined to engage in the kind of speculation necessary to find

‘hat aggravating circumstance. * Similarly, that the homicide was

especially heinous, atrocious or cruel and/or was committed ina

cold, calculated and premeditated manner, required a subjective

judgment which the jury may have reasonably declined to make.

Although the judge found no mitigating circumstances with

which to outweigh the aggravating circumstances in making his

sentencing decision, evidence of several mitigating circumstances

was presented and argued at trial and may well have been con-

sidered by the jury.

C. Conclusion: The Jury, Not the Judge Acted

Reasonably and Constitutionally

The sentencing judge's decision to override the jury's

recommendation must have been grounded upon an improper weighing

At Petitioner's sentencing the court found five aggravating

circumstances and no mitigating circumstances. The five

aggravating circumstances found were: (1) that the capital

felony was committed while the defendant was engaged in the

commission of a robbery, rape, arson, burglary, or kid-

napping...(2) that the capitai felony was committed for the

purpose of avoiding or preventing a lawful arrest or effecting

an escape from custody...(3) that the capital felony was

committed for pecuniary gain...(4) that the capital felony was

especially heinous, atrocious or cruel...(5) that the capital

felony was a homicide committed in a cold, calculated and

premeditated manner.

4 In Routly v. State, supra, Justice McDonald, writing in a

concurring opinion, aeciined to find sufficient evidence of

this aggravating circumstance. According to Justice McDonald

"[the] circumstances are subject to many hypothesis on why

this ‘omicide was perpetrated..." p. 1266.

-19-

of aggravating and mitigating circumstances and his consideration

of the presentence investigation report. Nothing else explains

the verdict in that the presentence investigation report was

the only thing which differentiated the judge's consideration

from that of the jury.

It is significant that neither the Florida Supreme Court nor

the trial court, in affirming Petitioner's death sentence, made

the finding required by Tedder v. State, that virtually no

reasonable person could differ over the necessity of a death

sentence. The Florida Supreme Court held that:

We have compared, as did the trial court, the

facts in the case sub judice with cases where

we have uphe.d the imposition of the death

penalty on similar facts and found the

sentence imposed to be consistent with those

cases. (citations omitted).

This “proportionality test” is quite different from that of

Tedder and suggests that either the court has impliedly overruled

the Tedder decision or that the Florida courts were aware that

the Tedder test was not met in this case.

IV. A TRIAL JUDGE'S OVERRIDING A JURY'S FACTUALLY BASED

DECISION AGAINST THE DEATH PENALTY MUST, IN ALL CASES, VIOLATE

THE FIFTH, SEVENTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION

OF THE UNITED STATES.

Petitioner argued above that the jury override was unconsti-

tutionally applied in this case. But the difficulties in defin-

ing and administering the override, brought sharply into focus by

Petitioner's case, lead inevitably to a broader inquiry: is the

override itself constitutional? Petitioner readily acknowledges

that this Court has suggested that the override is

constitutional. At least one lower court has read Proffitt,

Dobbert and Barclay as foreclosing the matter. See Douglas v.

Wainwricht, F.2d (llth Cir. 1983). It is for that

reason that only this Court can revisit the issue.

Petitioner respectfully asks this Court to reconsider the

issue. Florida's jury override should be declared uncon-

stitutional on its faee for at least four reasons: the nature of

the death decision, based as it is on retributive impulses, can

only be imposed by a cross-section of ...e community whose outrage

is being expressed; for this reason, judges have no special

expertise and in fact juries are the true “experts” on whether

death is appropriate in any given case; the practice of

overturning a jury's penalty determination is contrary to the

overwhelming national practice since at least 1948, it is also

contrary to the great weight of professional legal opinion.

Because Florida has chosen to involve a jury in deciding who

dies, the life verdict of that jury should stand.

A. The Nature of the Decision on Death

Death is different, this Court has stated, for several

reasons. Not only is this penalty irremediable, but the motive

for its imposition differs from any other penalty permissible

under our Constitution. Rehabilitation is irrelevant and in-

Capacitation, while conceptually applicable, has never been

emphasized as a goal of the death penalty. Deterrence is a

matter if great importance to legislatures debating whether the

death penalty is appropriate at all, but not to particular juries

deliberating whether the penalty should be imposed in a given

case. Retribution, Petitioner would assert, is the primary goal

-21-

of execution. This Court has recognized again and again that the

death penalty represents a statement our society makes about the

kind of people we are. An execution is a public testament of

revulsion. See Furman v. Georgia, 408 U.S. at 453 (Powell, J.,

dissenting); Gregg v. Georgia, 428 U.S. at 1&4.

Because the death decision is a retributive one and because

retribution is an expression of the will of the “community”, a

greater degree of reliability is achieved if the will of that

body is expressed and folloved. The kind of reliability

discussed by this Court is cases such as Lockett v. Ohio, 438

U.S. 586, 604, 605 (1978) refers to the accuracy of the decision

to be retributive. A jury is substantially better able to convey

the community's wish for retribution than is a single judge. The

role of the jury in capital sentencing is to “maintain a link

between contemporary community values and the penal system” that

reflects the “evolving standards of decency that mark the

progress of a maturing scciety”. Witherspoon v. Illinois, 391

U.S. 510, 519 n. 15 (1968). The Court's reference to this “link”

is another way of saying that the jury's job is to speak the

community's desire for retribution. And that is a job that only

a jury can perform.

B. The Myth of Judicial Expertise in Capital

Sentencing

One may accept the general proposition that jur, sentencing

is required to ascertain the “conscience of the conmunity” and

still argue that judicial sentencing is needed to foster consis-

tency among cases. This Court in Proffitt v. Florida observed

that “judicial sentencing should lead to greater consistency ...

since a trial judge is more experienced in sentencing than a

jury, and therefore is better able to impose sentences similar to

those imposed in analogous cases." 428 U.S. at 252. Petitioner

respectfully submits that this proposition is an inaccurate

statement of the nature of the capital sentencing decision.

There is no way for a judge to equal what a jury can best

bring to the capital sentencing process -- the community's view.

Juries, properly chosen in accordance with law designed to assure

that they reflect a fair cross-section of the community, are more

likely to accurately reflect community values than are individual

trial judges. This is true because twelve people are more likely

than one person to reflect public sentiment, because jurors are

selected in a manner enhacing that likelihood and because judges

collectively do not represent -- by race, sex or economic or

social status -- the communities from which they come. This is

the touchstone of the retributive impulse and in this it is the

Jury, mot the judge, which has the “expertise.”

Further, this Court's concern with "individualization’,

expressed in Lockett renders questionable the theoretical rele-

vance of “analogous” cases at the jury sentencing stage. Lockett

emphasizes the differences between people, their “uniqueness”,

438 U.S. at 605, when it comes to capital sentencing.

Finally, consistency among cases need not occur at the

judge-jury stage of the process. Consistency can and must be

provided though the appellate review procedures approved by this

Court in Proffitt. To the extent that different trial judges

sentence similar defendants, they will predictably apply

different standards in capital cases, just as they do now in

noncapital cases.

C. National Practice

In testing the constitutional validity of death penalty

procedures, this Court has often looked to the national legis-

lative practice. See, e.g. Roberts v. Louisiana, 428 U.S. 325,

336 (1976); Coker v. Georgia, 433 U.S. 584, 593-597 (1977); Beck

v. Alabama, 447 U.S. 625 635-637 (1980). Such examination in

this case reveals that the practice of overturning a jury's

penalty determination is contrary to the overwhelming national

practice since at least 1948, thus violating the “evolving

Standards of decency” identified by this Court in Gregg v.

Georgia and Gardner _v. Florida, 430 U.S. 349 (1977). Such

overwhelming national rejection of a procedure for imposing the

ultimate penalty must at the very least raise serious doubts

apout its constitutionality.

In 1948, only New York, Delaware and Utah sanctioned the

practice of jury override, out of 42 jurisdictions (including

federal) with discretionary capital punishment for murder. By the

time of Furman in 1972 only Delaware and Utah permitted such a

procedure out of 41 capital murder jurisdictions (including

federal and District of Columbia}),° New York having made a mercy

Gecision by either the judge or the jury binding in 1963.

Since the decision in Furman, of the 22 jurisdictions

(ancluding federal) which have adopted “quided discretion" death

penalty statutes with jury participation in ct* penalty phase,

only Florida, Indiana and Alabama permit death sentences after

jury decisions tor life (see Appendix D). Moreover, only in

Florida does it appear that such death sentences have actually

been imposed and affirmed since Furman. As of May, 1981, no

death sentences after jury life determinations had been imposed

under the Indiana or Alabama statutes.

An additional indicator of unconstitutionality is the great

rarity with which death sentences after jury mercy recom-

mendations were actually imposed and executed under the pre-

Furman Utah and New York laws. (There were no executions in

Delaware after 1949). All seven Utah executions during the period

of 1948-1972 involved cases where the jury had refused to

recommend life imprisonment; in two cases death sentences were

affirmed by the Utah Supreme Court after jury life recom-

mendations, but the defendants received executive clemency (see

Appendix E for Utah cases). Commentators have also observed that

under the pre-1963 New York law, trial judges almost “invaribly”

followed jury recommendations of mercy. See Togman, The

Two-Trial System in Capital Cases, 39 N.Y.U.L. Rev. 50, 75 n. 171

(1964), c’ting New York District Attorney's Association,

Memorandum and Draft Bill (October 17, 1960)

See Andres _v. United States, 333 U.S. 740, 767 (1948)

(Prankfurte~, J., concurring). Inadvertently, Justice

Frankfurter listed New York as binding and New Mexico as

nonbinding, but see New Mexico Acts of 1939, Ch. 49 (jury

recommendation of life imprisonment in capital case binding).

(196 Douglas, J., concurring). Both Utah and Delaware now

make life imprisonment automatic unless the jury unanimously

agrees on death. (See Appendix D).

7 See People v. Fitzpatrick, 308 N.¥.S.2d 18, 22 (1970).

-24-

Thus, at least since 1948, death sentences after jury

fecisions for life have been rare in legislative practice and yet

rarer in application. This indication of unconstitutionality

must be given great weight.

D. Professional Legal Opinion

This near-uniform consensus of the States that jury dec-

‘sions against the death penalty should be final is in accord

with professional legal opinion, another factor to be considered

in due process questions concerning jury and death penalty

practices. ®

While this Court in Proffitt, 428 U.S. at 252 n. 10, cited

sources to show that trial iudges can play a useful role in

capital sentencing, it did not appear to attempt to ascertain

professional opinion on the imposition of a death sentence after

a jury decision for life. Surveying the literature both before

and after Furman, Petitioner finds considerable agreement that

jury participation is undesirable in noncapital sentencing but

highly desirable if not constitutionally mandated in deciding

life or death; that if a jury takes part in the penalty piase of

a capital case, its verdict for life must be final; but a jury's

decision for death may best be treated as a mere rec mmendation

to the court.

A major study endorsed by this Court in Duncan v. Louisiana,

391 U.S. 145 (1968), found a reasonable basis~for judge/ jury

disagreements in capital penalty decisions.” This pattern holds

true in Florida. (See Appendix F). Further, even severe critics

of noncapital jury sentencing have advocated the jury's power to

reject the death penalty. !®

Special attention is called to the two sources directly

cited by this Court in Proffitt, 428 U.S. 252 n. 109, which note

See e.g. Gregg v. Georgia, supra, 428 U.S. at 189-195.

H. Kalven and H. Zeisel, The American yaad 445 (1966), cited

in Duncan 391 U.S. at 157 a nn. a "

Note, jenten Virginia , 53 Va. L. Rev.

56, sé 11967) ubin, T Law of Crimin orrection 375

(1973). LaFont, A ment c Tera A usage :

Function, 38 Texas L. Rev. epc on

Roya. ie ee Sosmet pean, 1949-1953, q571.

-25-

with approval the prevailing practice of requiring a jury's

consent for the death sentence but leaving noncapital sentencing

to experienced judges alone.!!

Since the 1976 death penalty decisions, some commentators

have concluded that jury participation and consent in a death

sentence (unless waived) is constitutionally required, '? although

it is not necessary to reach this broader issue ir order to

prohibit overturning a jury's life determination. Several

sources, including the Model Penal Code, endorse a system where

the trial judge is the final sentencer (as in Florida), but an

advisory jury's decision against death is final.'? one commentator

comparing several post-Furman systems generally endorses Flor-

ida's statute and case law, but disapproves of the tension

created between judge and jury when > jury's decision for life

can be overruled, /4

E. Conclusion

This Court should grant certiorari to reconsider whether a

State legislature may involve a jury in a capital punishment

1 See American Bar Association Project on Standards for Crim-

inal Sentencing, Sentencing Alternatives and Procedures,

$1.1, Commentary (Approved Draft 1968) 47-48 (reasons for

giving requiring jury consent for death penalty); President's

Commission on Law Enforcement and Administration of Justice:

The Challenge of Crime in a Free Society Task Force report,

The Courts 26 (capital jury discretion generally accepted,

but noncapital jury sentencing undesirable).

be See Liebman and Shepard, Guiding Capital Sentencing Discre-

tion Beyond the “Boiler Plate:" Mental Disorder as a Mitigat-

ing Factor, 66 Geo.L.J. , n. 8) (jury is

appropriate, if not constitutionally mandated, capital

sentencing forum); Mannheim, The Capital Punishment Cases:

Criticism of Judicial Method, 12 Loy.L. Rev. 85, 107-108, ist

(1978) (suggests requirement of jury consent for death in

penalty phase under the Constitution); Gillers, Decidin who

Dies, 129 U. Penn. L. Rev. 1, 39-74 (1980) (jury consent for

death constitutionally required).

13 American Law Institute, Model Fenas Code 210.6 and Commentary

at 133 (Prop. Off. Draft ; T Supra, 39 N.Y.U.L.

Rev. 50, 53; Wollan, The Death malty After Furman, 1974

Crim. Justice Systems ° ; iTpos um on Capital

Punishment, 7 N.Y.L. Forum 249, 312-31 ) (opinion o

Prof. Louis B. Schwartz); Comment, i

rocedure in Capital

trial similar to a trial on guilt or innocence and then treat a

finding in favor of the accused as merely advisory. Because the

capital decision hinges upon retribution, only a jury can decide

who dies. For this reason, virtually every State in the Nation

makes jury verdicts for life binding. Florida's system of jury

override is unconstitutional.

CONCLUSION

Upon the foregoing reasons, the Petitioner asks this Court to

Grant a writ of certiorari.

Respectfully submitted,

112 South Lake Avenue

Orlando, Florida 32801

(305) 423-2100

Attorney for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing had been furn-

ished this 12th day of March, 1984, by mail delivery to Richard Ww.

Prospect, Assistant Attorney General, 125 North Ridgewood Avenue,

4th Floor, Daytona Beach, Florida #32014.

RAY! law GOODMAN

-27-

IN THE SUPREME COURT OF THE UNITED STATES

83-6400

DAN EDWARD ROUTLY,

)

Petitioner,

v. CASE NO. 4-610

Supreme Court. US.

STATE OF FLORIDA, FILED

Respondent. ) MAR 12 3884

)

Pleventer L. Steves, Clerk

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I, DAN EDWARD ROUTLY, being first duly sworn, depose and say

that I am the Petitioner, in the above-entitled case; that in sup-

port of my motion to proceed on appeal without being required to

prepay fees, costs or give security therefor, I state that because

of my poverty I am unable to pay the costs of said proceeding or to

give security therefor; that I believe I am entitled to redress;

and that the issues which I desire to present on appeal are the

following:

Whether a conviction for first degree murder

obtained by introduction of a tape recorded

confession made in exchange for a promise to

charge the lesser offense of second degree

murcer denies due process of law and abridges

rights guaranteed by the Sth Amendment to the

United States Constitution?

Whether a death sentence imposed over a jury

recommendation of life which is based on a

oresentence investigation report containing

non-statutory aggravating circumstances from

anonymous sources denies due process of law

and subjects Defendant to cruel and unusual

punishment?

II!

Whether a death sentence imposed over a fact-

wally based jury recommendation of life sub-

jects Defendant to cruel and unusual punish-

ment in all cases?

I further swear that the responses which I have made to the

questions and instructions below relating to my ability to pay

the cost of prosecuting the appeal are true.

1. Are you presently employed?

. Be

Have you received within the past twelve months any in-

come from a business, profession or other form of self-employment,

or in the form of rent payments, interest, dividends, or other

. source?

NEA <i

3. De® you own any cash or checking or savings account?

Se.

Do you own any real estate, stocks, bonds, notes, auto-

mobiles, or

other valuable property (excluding ordinary household

furnishings and clothing)?

(Vv b / ~~

—

5S. List the persons who are dependant upon you for support

and state your relationship to those persons.

Vone

I understand that a false statement or answer to any questions

in this affidavit will subject me to penalties for perjury.

4 ,

ae \ B, .

' ( ; 7 i. * IZ

~ _ - Bctt tk 7,

DEN EDWARD wry 2 4

STATE OF F

I ,

county oF Ari ks )

cribed and sworn to before me “se F _ day of f

AVh , 1984.

My commission expires: Wnuk ¢F a me oli

Notary Public

WOTARY PULLIC, ote

ote JF € ORIDA

Wy Comins sion expires Sept. 25, 4

Let the applicant proceed without prepayment of costs or fees or the

necessity of giving security therefor.

Associate Justice of the Supreme

Court of the United States

e e

No. A-610 83 - 64 05

IN THE

SUPREME COURT OF THE UNITED STATES

we _

; A | Pn!

OCTOBER TERM, 1983 UK's CEE

. mileee

DAN EDWARD ROUTLY,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

RAYMOND L. GOODMAN

112 South Lake Avenue

Orlando, Florida 32801

(305) 423-2100

Attorney for Petitioner

ROUTLY v. STATE

Fla 1257

Cite as 440 $0.36 1257 (Fla. 1983)

ing in the building as well as the neighbors,

firefighters, and police responding to the

call In each instance, we sustained the

trial court's finding that defendant created

@ great risk of death to many persons.

In the case sub judice the struggle with

the victim was clearly conduct surrounding

the capital felony. There were numerous

vehicles on the highway and defendant

should have reasonably foreseen that his

erratic driving and possible loss of control

of the car would have created a “great risk”

of danger to many persons, including the

risk of crashes, possible harm to neighbor:

and to police responding to the scene.

The evidence fully supports the finding

that the murder occurred while defendant

was engaged in commission of a kidnap

ping, robbery, and rape. The victim was

abducted at knife-point from the laundro-

mat and taken by defendant in his car.

Although she was wearing a red top when

she left for the laundry, she only had shorts

on when her body was recovered. Defend-

ant also took the victim's pocketbook and

buried it This evidence is insufficient to

support the finding that the felony was

committed for pecuniary gain.

[34] Evidence of the victim's kidnap

ping, her struggle, her pleas for help, and

the extremely crue] beating and strangula-

tion death supports the find'ng that the

murder was extremely cruel, heinous, and

atrocious. :

The court considered defendant's conten-

tion that he was acting under extreme emo-

tional duress and properly rejected it, as did

al! three psychiatrists who examined de-

fendant

[35] Before imposing sentence, the trial

judge visited Florida State Prison to deter-

mine if defendant’s conduct on death row

constituted a mitigating circumstance. De-

fendant says this violates the principles of

Gardner v. Florida, 430 U.S. 349, 97 S.Ct

1197, 51 L.Ed.2d 393 (1977). It does. How-

ever, as the result of this investigation the

trial judge found a non-statutory mitigat-

ing factor which he considered in imposing

sentence. This error did not injuriously

affect the substantial rights of the defend-

ant -

The facts supporting the sentence of

death sre clear and convincing and are es-

tablished beyond a reasonable doubt. We

have carefully examined the record in this

case and considered the brief of the defend-

ant. Defendant has had a fair trial and