# Petition — ROUTLY v. FLORIDA (No. 83-6405) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0967%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text 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). © see Witherspoon v. Illinois, 391 U.S. 510, 525-527 and nn. 2-8 (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 14 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: I 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? II 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 63.4(11) Criminal Law @519(8) . Mere fact tha. arresting officer was not privy to statement of defendant's girl friend, an eyewitness to murder, given to other officers and implicating defendant in crime did not render arrest unlawful for le sk of probable cause and, hence, did not require suppression of tape-recorded confes- sion which “efendant gave to police officers shortly after his arrest. 3. Criminal Law @517(7) Legal conclusion of police officer that he arrested defendant because he was wanted for questioning in regards to a mur- der did not prevent State from arguing and presenting evidence that there was proba- ble cause for defendant's arrest and, hence, did not preclude admission of tape-recorded confession which defendant gave to police officer shortly after his arrest. 4. Crimina! ‘aw @519(6) Tape-recorued murder confession which defendant gave to Florida officers shortly after his arrest in Michigan was not subject to being suppressed regardless of whether defendant was arrested for murder on in- formation that fell below standard of prob- able cause, where authorities in Michigan 440 SOUTHERN REPORTER, 2d SERIES vad outstanding warrants for defendant og unrelated charges. 5. Criminal Law @=520(1) Claim that defendant's confession was ot voluntarily given, baving been induced by various promises made by police officers, was not supported by facts in record, de spite factual dispute between testimony of officers and defendant 6. Criminal Law 577.13 The unforeseeable unavailability of s witness is a ground for an extension of a speecy trial rule. West's F.S.A. RCrP Rule 3.191. 7. Criminal Law 577.13 Determination by trial court of excep tional circumstances justifying an extension of speedy trial rule is a matter of discretios based on facts presented below. West's F.S.A. RCrP Rule 3.191. 8. Criminal Law 577.13 Unavailability of an eyewitness who was in Michigan was unforeseeable and hence, was an exceptional! circumstance jus tifying an extension of speedy trial rule where witness was in her penultimate month of pregnancy and evidently exper+ encing unusual cramps which cautioned against her travel. West's FSA. RCrP Rule 3.191. 9. Burglary 2 The burglary statute is satisfied whea the defendant “remains in” a structure with the intent to commit an offense thereis and, hence, does not require proof of an unlawful entry West's FSA. §§ 810- 02(1), 812.13(1), 921.141(5 Xe). 10. Homicide 354 Burglary committed by defendant st the time of fatal event was an aggravating circumstance justifying imposition of death penalty in homicide case, notwithstanding claim that defendant legally entered home from outset, where defendant remained is structure with intent to commit an offense therein. West's F.S.A. §§ 810.02(1), 812- 13(1), 921.141(5Xe). ROUTLY v. STATE Fla. 1259 Cite as 440 S026 1257 (Fla 1963) 11. Homicide 354 Evidence was strong enough to justify imposition of death penalty on basis of a7- gravating circumstance that capital felony was committed for purpose of avoiding or preventing a lawful! arrest or effecting an escape from custody in that defendant, who knew that victim knew him and could later provide police with his identity, had no logi- ca) reason for binding and kidnapping him and driving him to a secluded area except for purpose of murdering him to prevent detection. West's F.S.A. §§ 810.02(1), 812- 13(1), 921.141(5 Ke). 12. Criminal Law @1208.)/5) Imposition of death penalty on basis of aggravating circumstance that capita! felo- ny was committed for pecuniary gain was not improper due to doubling of aggravat- ing factors of robbery and pecuniary gain in that defendant also committed a kidnap ping which sufficed as a single aggravating factor. West's F.S.A. § 921.141(5\f). 13. Homicide e354 ' Imposition of death penalty on basis of aggravating factor that capital felony was especially heinous, atrocious, or crue] was not improper in situation where victim was murdered by gunshot and may have died instantaneously; the victim knew that he was going to die, and the terror that was felt by the victim during the ride in the trunk of the defendant's vehicle, and imme- diately precedent to death, was beyond de- scription by the written word West's F.S.A. § 921.141(5\h). 14. Homicide e354 The cold, calculated and premeditated manner in which the murder is committed is applicable as an aggravating circum- stance to imposition of death penalty in cases where murders are executions or con- tract murders. West's FSA § 921.- 141(5Xi). 15. Homicide e354 Imposition of death penalty on basis of aggravating circumstance that murder was cold, calculated and premeditated, as indi- cated by purchase of firearm, among other things, was not improper, even though de- fendant did not even know victim when firearm was purchased, where murder could properly be characterized as an execution. West's F.S.A. § 921.141(5X/i). 16. Homicide 354 Based on observations of defendant at trial, presentence investigation, psychiatric evaluation, and facts of crime, tria] court was not required to find that defendant's age of 25 at time of homicide was a mitigat- ing factor precluding imposition of death penalty. West's F.S.A. § 921.141(5Xa, b). 17. Criminal Law @ 1208.1(5) There was no basis in record for find- ing as a mitigating circumstance precluding imposition of death penalty that defendant lacked a significant criminal! history or that defendant was under the irfluence of ex- treme mental or emotional disturbance. West's F.S.A. § 921.141(5a, b). 18. Homicide 354 Disparate treatment of an eyewitness, who received immunity, was not a nonstat- utory mitigating circumstance precluding imposition of death penalty in homicide case in that eyewitness was not an accomplice. Raymond L. Goodman, Orlando, for ap- pellant. Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee. ADKINS, Justice. This is an appeal by Dan Edward Routly from his conviction of first-degree murder and from the tria] judge's imposition of the death sentence after the jury had recom- mended life imprisonment. We have juris- diction. Art. V, § 3(bx1), Fla. Const. We affirm the conviction and the sentence. In mid-1979 defendant and his girlfriend, Colleen O'Brien, were travelling throughout Florida looking for work. They settled temporarily in the Ocala area when defend- ant was offered employment. Defendant and O'Brien stayed at several locations dur- ing their term of residence in the area 1260 Fila. First, they resided in a trailer which be longed to defendant's employer. After de fendant’s employment was terminated, they lived in a friend's garage apartment for a short term. Thereafter, they resided brief- ly at a campground. During this period of time, defenc..nt and Ms. O’Brien were apparently having domes- tie difficulties which resulted, at one point, in O'Brien leaving defendant. For some reason O’Brien accepted a ride from the victim, Anthony Bockini, a retired resident of the community. Bockini dropped O'Brien off at the campground and gave her his name, address, and phone number with instructions for her to call if she need- ei help. Apparently unable to resolve the dispute with defendant, O’Brien called Bockini the next day and requested that he come and pick her up. Bockini complied and O’Brien stayed overnight, during which time she began making preparations to take a bus back to Michigan. The following evening the defendant went to Bockini’s house in an attempt to reconcile with O’Brien. Bockini was not at home at the time, and O’Brien let the de- fendant into tae house. When Bockini later returned, defendant feigned a departure out the back door, but subsequently con- verged on the victim wielding a gun and demanded him to lie on the bed. Defend- ant then bound (hands and feet) and gagged the victim and ransacked his home looking for money ard valuables. Defend- ant broke ceramic banks on the floor pilfer- ing the contents, and took the money from the victim's wallet Next, the defendant loaded the victim into the trunk of his (victim's) car, told O’Brien to pack her belongings and they set out on @ journey purportedly looking for a “field to let him out in.” While defendant was looking for an appropriate place to discharge the victim, the tail lights on the vehicle began to malfunction. Defendant drove a short distance further until he found an appropriate place to stop. He pulled off the road, took the victim out of 440 SOUTHERN REPORTER. 2d SERIES dragged him up under some bushes The partially decomposed body of the vic. tim was discovered sometime later by a person plowing the field) Defendant ang O’Brien drove to Louisiana where he washed the car and abandoned it, keys in the ignition (hoping someone would stea! it). Later that year, O’Brien was arrested by authorities in Flint, Michigan. While in custody, she informed the Flint authorities of the murder and implicated defendant Officers from Marion County, Florida, were notified and traveled to Michigan where they interviewed O’Brien, and, with the as sistance of Flint authorities, arrested de fendant. Defendant waived extradition; he was indicted by a Marion County Grand Jury, tried and convicted of first-degree murder. As his first point on appeal, defendant argues that the trial court erred in failing to suppress his tape-recorded confession which he gave to the Florica officers short- ly after his arrest in M'chigan. Defend ant’s first contention on this issue is that his confession was the fruit of an unlawful arrest. To support this contention defend- ant quotes the testimony of Officer Black, a uniformed police officer from Flint, who was directed by superiors to stop and arrest the defendant Black testified that he ar- rested the defendant because “he was want- ed for questioning in regards to a murder from Florida.” Although the defendant cites no authority for his position, he seems to assert that the state is bound by the legal conclusion as articulated by the Michigaa officer on cross-examination, and that we should infer from this testimony that the defendant was arrested on information that fell below the standard of probable cause [1-3] At the outset and dispositive om this issue is the fact that the defendant failed to make a contemporaneous specific objection at trial. Not naving done so, he cannot now raise this issue on appeal. Sie inhorst v. State, 412 So2d 332, 338 (Fla 1982); Jones v. State, 360 So.2d 1293, 136 Therefore, even had he preserved this argu- 5 i a set, and the opportunity to go to trial on an earlier date was within the state's discre- tion. The defendant asserts that he was at al] times prepared for trial, although he did not file a forma! demand, and that the state should have foreseen the delivery as the natural consequence of pregnancy and pro vided for an earlier tral. The hearing for the motion took place on April 15, 1980, at which time the assistant State attorney presented the factual basis fer exceptional circumstances to the court below. These facts, as set forth in the record, indicate that the witness’ estimated delivery date was one and one/half months away, but that she was experiencing cramps and had been advised by her doctor that travelling could be hazardous. Based on this evidence, the tria! court found that Fla. R.Crim.P. 3.191(f1) (unforeseeable ab- sence of person who is uniquely necessary), was applicable. [6,7] That the unforeseeable unavaila- bility of a witness is grounds for an exten- sion of the speedy tria! rule is clear. Fila R Crim.P. 3.191(f); Dedmon v. State, 400 So.2d 1042, 1045 (Fla. 1st DCA 1981); Fos- ter v. State, 380 So.2d 1081, 1082-83 (Fila $d DCA), review denied, 388 So.2d 1113 (Fia.1980); State v. Rheinsmith, 362 So.2d 698, 699 (Fila. 24 DCA 1978); State v. Wolfe, 271 So.2d 208, 204 (Fila 4th DCA 1972). Further, the trial court's determina- tion of exceptional circumstances is a mat- ver of discretion based on the fucts present- ed below. Talton v. State 362 So.2d 686, 687 (Fla. 4th DCA 1978), cert. denied, 370 So.2d 462 (Fla.1979). [8] The only question in dispute was the foreseeability of the witness’ unavaiiability for trial. The trial court found that the unavailability was unforeseeable; we be heve that the record supports this finding The witness was in her penultimate montt of pregnancy and evidently experiencing unusual cramps which cautioned against her travel. We find no abuse of discretion. court made the following factual findings: The Defendant entered the home of Anthony Francesco Bockini after dark, Sunday evening, June 17, 1979, when the was without pulled a gun on him, told him to lay down on the bed, tied him up, and went through his house looking for some mon- ey. He found ceramic banks in a drawer, He tered the home from the outset. This argu ment is without merit. The ‘e is satisfied when the defendant “re mains in” a structure with the intent w commit an offense therein. Hence, the um lawful entry is not a requisite element § $20.02(1), Fla. Stat (1981). Further, the record would support a finding that the defendant also committed a robbery. § 812.13/1), Pla Stat (1981). And, even had the requisite elements for robbery and bur- giary not been present, the defendant con cedes his commission of a kidnapping. this conclusion on the following facts: In driving out of Ocala on back roads Ht i i THT 8 F tt eel ante idettia body and she was scared. He and Colleen drove on to some city in Louisiana There, he took the car to a car wash, washed it all down im the trunk and cleaned the inside out to get the finger- prints out He parked the car at a bar and left the keys in it, hoping somebody would take it Later he told his brother he shot somebody. for his broth- er, Colleen and Mary, no one learned of the murder through the Defendant Colleen O'Brien testified at trial It is burglary and theft of the victim's proper- ty, cash and automobile. The defendant argues that the evidence is insufficient to find this aggravating fact is applicable beyond a reasonable doubt In We issuec caveat however, against the mechanica] application of this factor when- (Fla.1982), cert. denied, ——- US. ——, 108 S.Ct. 1808, 75 L.Ed.2d 937 (1983) (defend- ants robbed the victim, a convenience store clerk, kidnapped her, raped her and drove her to a dump where she was stanbed to death and discarded); Griffin v. State, 414 $o.2d 1025 (Fla.1982) (defendants abducted bystander to convenierce store robbery and homicide, dragged him off into a wooded area. shot and killed him); Adams v. State, 412 So.2d 850 (Fla), cert denied, —— U.S. —, 108 S.Ct 182, 74 L.Ed.2d 148 (1982) (defendant abducted an S year-old girl, sex- ually assaulted her, strangled her to death, encased the body :n plastic and disposed of it in a desolate area); Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 US. 987, 9% SCi 2063, 6 LEd2d 666 (1979) (robbery victims murdered), The facts in all of these cases were devoid of any evidence of an express statement by guished on this basis and the decision sup- ports the applicability of this factor in the instant case The defendant also asserts that our deci- sion in Menendez v. State, 368 So.2d 1278 (Fia.1979), supports his position. In Menen- dez the defendant robbed a jewelry store and shot the proprietor using a silencer- equipped firearm. A customer happened onto the scene in time to see the defendant emptying the store safe. The customer pro vided a description to police which enabled them to effect an expeditious arrest. We held that the trial court there improperly appled this aggravating factor. We distin- guished Riley as follows: “Here, unlike Ri- ley, we do not know what events preceded 1264 Fla the actua! killing; we only know that a The motive for the murder in Menendez to a secluded area except for the purpose of murdemng him to prevent detection In fact, defendant has not been able to assert any other explanation for this behavior in a0 é : ; : Ht z : : Re Rg i 4 | ¢ 783 (Fila.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977), is with. mitted a kidnapping and an improper dou. bling has not occurred. Bolender v. State, 422 So.2d 833 (Fla.1982), cert denied, — US. ——, 108 S.Ct 2111, 77 L.Ba2d a5 (1983); Stevens v. State, 419 So2d 1058 (Fla.1982), cert. denied, —- US. ——, 1% S.Ct. 1236, 75 L.Ed.2d 469 (1983). As his next point of error defendant as serts that the trial court improperly found as applicable section 921.141(5h) (that the capital felony was especially heinous, atro- cious, or cruel). The trial court's findings of fact on this element are as follows: The victim was retired, a widower, who devoted his retirement years to communi- ROUTLY ¢. STATE Fila 1265 Whether or not the victim in the instant case died instantaneous'y is unclear from pris Siete ef BGeks orel aH E PD 8 in Pe 55 i that the victim knew he was going to die; the evidence supports this conclusion Mr. Bockini must have known that the defend- ing this ride, and immediately precedent to his death is beyond description by the writ- ten word and is indistinguishable from the terror and fear felt by the victims in Knight, Adams, Steinhorst, White, and Smith. We therefore hold that the heinous, atrocious or cruel factor was properly ap- plied by the court below. The trial court also found section 921.- 141(5Xi), Florida Statutes (1981) (cold, cal- culated and premeditated manner), to be applicable in this case. In support of this finding, the court stated the facts as fol- lows: This crime was a homicide committed with a firearm which the Defendant pur- chased under false pretenses, using the name Keith Rosencrantz... This fact, together with the other circumstances of this case, indicate that this capital felony was a homicide and was committed in a cold, calculated, and premeditated man- ner without any pretense of moral or lega! justification {14,15} The defendant argues that there is insufficient evidence in the record to support this finding by the trial court; we disagree. Although we fail to see the relevance in the finding that the defendant purchased the weapon under “false pre- tenses”, since the defendant did not even know the victim when the firearm was pur- chased. Nevertheless, the other circum- stances of this case, considered by the trial court, are sufficient standing alone to sup port a finding of applicability of this factor. As we have previously stated, this factor applies in murders “which are characterized as executions or contract murder:, although that description is not intended ‘o be al!-in- elusive.” McCray v. State, 416 So.2d 804, 807 (Fia.1982) (citing Jent v. State, 408 $0.24 1024 (Fia.1981), cert denied, 457 US. 1111, 102 S.Ct 216, 73 LEd2d 1322 (1982)). We find the execution style killing im the case sub judice to be without rele vant distinctions from similar cases where we have affirmed the application of this factor. See eg Smith v. State, 424 So.2d 726 (Fia.1982) (convenience store clerk robbed, sexually battered and taken to a wooded area where she was shot three times in the head); Combs v. State, 403 So.2d 418 (Fia.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982) (to facilitate a robbery, defendant lured the vietim to a wooded area, under the pretext of it being a shortcut to a party, and there- after shot her in the head several times). Therefore, we hold that the trial court properly found five aggravating circum- stances to be applicable, and turn to the 1266 Fla issue of mitigzting circumstances of which the tna! court fourd none to be applicable. The defendant argues that the tra! court should have found three mitigating factors applicable, the defendant's age, the defend- ant’s lack of significant criminal history and that defendant was under the influence of extreme mental or emotiona! disturbance. (16) With regard to the defendant's age as a mitigating factor, the court held, based on observations of the defendant at trial, the presentence investigation, the psychiat- me evaluation and the facts in this crime, that the defendant's age of 25 at the time of the crime was not a mitigating factor in the instant case. We hold that the court was not required to find appellant's age to be a mitigating factor, and find no basis for reversal on this issue. Simmons v. State, 419 So.2d 316 (Fla. 1982). (17) Defendant further asserts that the court improperly found as inapplicable sec- tion 921.141(5\Wa) (lack of significant crimi- nal history); we find no merit to this eon- tention Booker v. State, 397 So2d 910 (Fia.1981), cert denied, 454 US. 957, 102 S.Ct. 498, 70 L.Ed2d 261 (1981). We also find no merit to defendant's contention that section 921.141(5\b) (defendant was under than the appellant, and there was no error in treating the defendant differently than O'Brien. See Downs v. State, 386 So2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct 387, 66 L_Ed.2d 238 (1980). We have compared, as did the trial court, the facts in the case sub judice with cases 440 SOUTHERN REPORTER, 24 SERIES 1 46 Hie att i} fr HH vit L.Ed2d 913 (1976); Spinkellink v. wright, 578 F.2d S82 (Sth Cir.1978), cert denied, 440 US. 976, ® S.Ct L.Ed.24 796 (1979). Accordingly, we affirm the judgment conviction and the sentence of death. It is so ordered. ALDERMAN, CJ., and BOYD, OVER- TON and EHRLICH, JJ., concur. McDONALD, J., concurs in result only on sentence with an opinion. a | Bue alll f 1 li ae iin i feral te wa le a bRicaie| RAR GPAUE it j its Baa Ais & a Hi iit Het di i HT ? ated yi ad hat alte le Ht | ill . ts IN THE SUPREME COURT OF FLORIDA MONDAY, DECEMBER 12, 1983 DAN EDWARD ROUTLY, oe Appellant, ee CASE WO. 60,066 vs. ee Circuit Court Case No. 79-1270-CF-A-01 (Marion) STATE OF FLORIDA, oe Appellee. ee On consideration of the Motion for Rehearing filed by attorney for appellant, IT IS ORDERED by the Court that said motion be and the same is hereby denied. A True Copy Cc cc: Hon. Frances £. Thigpin, Clerk TEST: Hon. Carven D. Angel, Judge Raymond L. Goodman, Esquire Richard W. Prospect, Esquire Sid J. White Clerk Supreme Court ’ a tr Abie Cinna aie =o APPENDIX B IN THE cin ar COURT of toc Poth Sedna Cites . Joe State ot Florida. in and for Marion = Comnty. we tite vear od Out Hond. onc themsand nue hundred and seventy Ane ee eg yaaa Case No.792, } 7 -CP-A-01 tien se elegaiid DAN EDWARD ROUTLY Of INFORMATION FOR eR | secono oecReE MURDER IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA : N. Burton Williams, \sistaunt To GORDON G. OLDHAM, JR... State Attorney for the Fifth Judicial Circuit of the State of Florida. in and for Marion County prosecuting for the State of Florida, in the said County. under oath, information makes that: DAN EDWARD ROUTLY of the County of _Maxrion ss and State of Florida, on the 2th dav -: _uIune_ in the year of Our Lord, one thousand nine hundred and seventy Mine in the County and State aforesaid: did, unlawfully and by an act imminently dangerous to another, and en- vincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill and murder Anthony Bockini, a human being, by shooting him with a firearm, a more particular description being to this Assistant State Attorney unknown, in violation of Florida Statute 782.04; NNO9D NOVA ould WuaT9 vis ‘AL 1uNod 1! oie FF n gai bl.Wd2tp § 30 contrary to the form of the statute in such cases made and provided and against the peace and dignity of the rane of Viasite. GORDON G. OLDHAM. JR. State Attorney, Fifth Judicial Circuit of Florida : , Byho- ae Oke Assistant State Attorney STATE OF FLORIDA, COUNTY OF_MARION Personally appeared before me,__N. Burton Williams, _ Assistant To GORDON G. OLDHAM, JR.., State Attorney for the Fifth Judicial Circuit, State of Florida, in and for Marion County. State of Florida, who first being duly sworn, says that the allegations as set forth in the foregoing in- formation are based upon facts that have been sworn to as true. and which if true. would constitute the offense therein charged. Prosecution instituted in good faith and subscribed under oath. certifying he has received testimony under oath from the material witness or witnesses for the offepse., Assistant to GORDON G. OLDHAM, JR. State Attorney. Fifth Judicial Circuit of Florida sd betore me this Sh... ot ; a | My Commission AACE Court this day of 19 Clerk of COURT e FLORIDA DEPARTMENT OF CORRECTIONS . INVESTIGATION . COUNTY __Marion wwe "| LOVARD ROUTLY DOCKET ® 79-1270 / ie NAMI ( sho , T 3 050-8445 mt 8 oneans ) 135 Normandy Court OFFENSE se DEGREE IURDER flint, Miehiran 48506 wigs boR VEfLZP55 WACK SEN yng gil aviudb. Oadi. wit DATE: 2718/30 ro AL RESIDENG I Cenesse County, Michigan ARREST DATE 12/6/ 79 (MTALT SECURITY @ 3065-68-6566 BOND none RELEASE DATE none ane dl _ Carven D. Anzel can TNe Acree? 12/6/79 hosk a . , ? SSTING AGENC . PPENSE ATT) ete A aes Jr. DLE 8 "aint City Felses Dep ISPOSITION DISP. DATE OFFENSE ~ Information resume: On Dece::er 18, 1979 an indictment for lst DECREE MURDIR was returned Ly the craic jury charginy defendant on June 17, 1979 with unlawfully with @ premeJitated design causing the death of a human being by killin;: and murderii::, Anthony Francesco Bockini by shooting him with a firearm in violation of FS782.04. . Court A>»oesrances: On 12/05/79 a capias for Second Degree Nurder was {ssued and recalled on 12/12/79 On 12/06/79 the defendant appeared iu court and the public defender was appointed. On 12/18/79 the subject was indicte.! by the grand jury of First Degree Murder and on 1/2/80 pled Not Guilty with case set for trial 3/10/80. After/ numerous continuances subject was scheduled for trial during the July 1980 term. On 7/18/30 subject sas found puilty by jury who also recommended an advisory sentence of life i =risonment. Om that same date subject was adjudicated guilt, by the o.wcable Carve D. Ansel and referred for a presentence investi- gation ' 2i:.: remanded to custody without bond. Circumstances: According to reports from the Marion County Sheriff's Department, case ;S-79-06-2328, weeny inves®@. zations revealed that between 3 p.u. on 6/17/79 amd 1/30 p.m. on 6/23/79 Anthony F. Bockini was shot in che head with a ¢éstol which resulted in his death. iiis body was left i:idden tn a wooden area north of the Snarr-Lowell Road just west of 441 aad 501. The victims body was located by Phillip Willia:ss who «as plowing in a field just north of the Sparr-Lowell Road on land belongins to Bernice Raysor. While turning the tractor around the ploy pushed weeds over allowing Mr. Willieme full view of the victims body. Mr. ‘illiaas imaecdiately went to Mrs. Raysor’s house to advise her of his findings at which timc the sheriffs departwent vas contacted. The area was inwediacely marked off vy the sheriffs department and evidence was collected end c..ut for laboratory tests. Oa 6/22/79 Charles brow, investigator with the Marion County Wort. Depart&e:t was summoned to a location on Sparr-Lowell Road where t.c victims ..c° was found. Investigator Brown observed the positic:n cn. econditic « the vedy o:.d wade a sketch of the crime scene a! . iis Invest’; 2. UV). Acas. Investigator Brown oxauined the vicc’ ' and fowl io troce of tiie vietim's vehicle which was later rece occ 7/5/79 in Lafayette, Louisiana. Subsequent investigations reveules tui Investigator Srown was informed on 9/9/79 by Deputy Don Chapuan thet information had been received that a couple using the names Dan and Colleen were a possible couple involved in this murder. Information was received that the suspect known as Dan also known as Keith Rosencrants a! a cop of Florida drivers licence number R252-514-51-381 with the name of Keith Owen Rosencrants was obtained. The mother of Colleen O'Brian, Mrs. Jacob O'Brian was contacted in Flint, Michigan and advised Investigator Brown that her daughter had left Michigan with a subject named Dan Routly. The police department was contacted in Flint, Michigan and advised Investigator Brown that the suspects full name ® @ Jett .Wutl : e Proseatcuce Investiration Page 2 "4s Dan Luvard Routly DOL 6/12/55. Further investircations revealed that the owner and oper’ .or of the Suuplus Outlet on South Pine Avenue in Ocala, Florida sold a °. 38-caliber revolver model 49 serial JROSS9C2 on 5/20/79 to Keith Rosencrants. The operator of the store identified the drivers license photograph of Bosencrants as Dan Udward j.outly. After nu. 3 other investigative contacts Colleen O'Brian was interviewed in Fliut, ..ichigan and admitted being present with defendant and partici- pating is tie rwrder of Anthony Bockini. On December 5, 1979 defendant was interviewed by Lt. Larry Gerald who advised him of his Constitutional Riches at witch tine cefendant admitted killing the victim. During that confession defendant revealed that he became aware of the victim when his cirlfriend, Colleen had advised him that the victim had given her a ride while she was hitchhiking. Defendant advised that he had an ar,;ument with Colleen after which he drove her to the victims house. Subject ad- mitted catering the residence of the victim where he indicated that he pulled a run on him and told him to lay dow on the bed and tied him up and searcicd his house for some money. After taking a undisclosed amount of money fro. his wallet defendant admitted stealing some radios and thinzs he could sell and then carried the victim who was tied up and placed hii fa the trur:. of his car. Defendant then stated that he and Collcen cot in the victias car and drove it through some back road outside of Ocala. Defendant stated that he pulled off into a deserted area and noticeg eit the bac’ li-iuts of the car had been damaged. Defendant stated that he opened the *runk and removed the victim and asked him why he had damazed the rear li;hts at which time in his anger defendant admitted shootine hin three ti.cs. Defendant then stated that he dragged the victic back into the bus .. - .cre his body was hidden. Subject then indicated that he drove te ..llahussee, Tlorida where he purchased te bus tickets to Cre. Prairfe, «:.as. After purchasing the tichets subject stated that tw too. the view. 2 car te the car wash and wasted ic all down in the trun. ui.! Cleaned t.c inside out in an attempt to remove the finrerprints. Defendant thea inJicaced that he parked the car at a bar, left the keys in it, hopine that so: eoue would steal it. Subject and Colleen then went to Crand Prairic. Texas Were he claiued to have traded the wurder weapon for a three whicel ce mail truc’.. Frou Texas subject returned to Flint, Michigan where he wus aporehen lod, Refendant's Statement: Defendant when interviewed in the Marion County Jail “66. letcly denied his guilt in thie offense. Defendant claims thut he cohavicated with Colleen O'Brian for approximately one year in iMiechigen. Clains they travelled to Ocala and resided here for anproxti:ately two monr:s oo --——-g2-F— 3 a « | Defendant > ee ec / / =: | =: Zo ~2 oe *y | ; : 2 a S4 $i WAIVER. OF EXTRADITION - y". | ‘ BEFORE THE HONORABLE BASIL F. BAKER, JUDGE | Flint, Michigan - Wednesday, December 5, 1979 . ¢ © , Se t | oe \ tae. | a? @t ial | | ' Janet L. Gifford CER-0638 . - ~~ to . . oe . | a. + ~~ ro ° (yar ee Oe ee J ‘“ee - wre _- ° . _-* ee i ad ow om en oe ei an rete ee ee ne ee eR ee et men ‘ == in the State of Florida. Is that right - Second Degree Flint, Michigan 9 | Wednesday, December 5, 1979 - at about 2:17 P.M. (Court and all other parties present) THE COURT: Okay, you're Dan Routley? MR. ROUTLEY: Yes Sir. THE COURT: You want to step UP in front of the lectern there. You, ah, you're evidently charged with an of fense Murder? / MR. ROUTLEY: Yeah. THE COURT: And you are desiring to waive your right to have extradition on this. Is that - is that MR. ROUTLEY: Yes your Honor. THE COURT: But you're - you understand you have a right to have 4 hearing on this and have 4 right to have counsel. You understand all that do you? MR. ROUTLEY: Yeah. “HE COURT: And you're - you're willing to give up all t* ‘se rights, are you, to- and to go back voluntar to Florida to - to stand trial for this offense. Is that right? MR. ROUTLEY: Yes. ° here, now. Has he read this do you know? OFFICER HARRIS: No he hasn't your Honor. THE COURT: All right. Have him read it - yeah. (At about 2:18 P.M. Defendant Routley reads waiv@r and signs it.) \ ’ ee eee ee me ' THE COURT: What about this - what about this | ‘ ) affidavit of - - OFFICER HARRIS: Usually the-- : | THE COURT: What? ! | OFFICER HARRIS: Usually the complaining officer . . e a ~ ns ». t ‘ e :- 3 . | signs that. - = , ‘os ta¥a- y , ‘ ai 9 i” | 4 a “~ >" a , 4 ° THE COURT: Okay. It's all done except for that. . All right. . is | COURT RECORDER: You don't have to swear him to | | it? “Subscribed and sworn before me on,” and it/signed by | Rt Ave ee you. , .'” “Ag r ‘ | +. . . THE COURT: What? OW: 4 eng FOG Oe at r. fi nee Pits i om 4 8 he” ; COURT RECORDER: And it says to be signed by a“ District Judge. Do we need it=- - THE COURT: Let me see. | COURT RECORDER: I don't know, I’ve never seen i before. OFFICER HARRIS: - - should have been on top, I! oe eee ae pre ‘ € ‘ m. * Pl yeaah pha | a eee ’ ‘ . : # 4 . “ [OO:. (tea ee Oe eRe *. _— OFFICER HARRIS: Thank you. ee ed — —_ _-—- —- _ — = COURT RECORDER: Get your copies. (At about 2:20 P.M. waiver completed) / “ee , ” z » ‘ + Fee ge -% Se > > xg ~ - . . * 4 . we” oe, . > +". ' : to Sait] S*MSTATE OF MICHIGAN), \'rnz ee ae, Be Ss . I~. . a sue ere , » SS ‘. “ee My ss 29 “8, = ¢ pe ow And. aT “Rig a Ye , ) ss =1 "2 COUNTY OF GENESEE) Ys . , we © pnw . | : weedy; -4¢% euten op eeteend, Janet L. Gifford, Certified Court Recorder of _ the 68th District Court, State of Michigan, do hereby cert ty al that the foregoing pages 1 through 4, inclusive, comprise "es arts 5 .# *g* ro ge ‘9s. ai ‘ibe * a full, true and correct transcript of the proceedings and Ps, * testimony taken in the matter of Daniel Routley, on Wednes | day, December 5, 1979. : ) ; - - 1 é. _ ; tee //Certified Court r/CER-06 os ee — — - . * ~~ x = rate alld Piln ry ae At i en ES RO ~~ ehh a etre gee le ant. iehigen a a = al : = aoe a a, a ES OTIS Fe ante ITE ee Oe ere. Matera 1) goer poe peek VO& PROC. 4 COn.cTions § 921.141 | if jelinstayt a ts sigs i | ae ioe Weel HiT y HH i : Me Hs Hitt iit Wi a il ie tat ih i 4 EB a a aad ae ilk (aie i dali it ie jal ist; hie se nile vite ‘ Pita I ny Salles Hint HE hd he aie § 921.141 cRIM. PROC. & CORRECTIONS ie (b) That there are insufficient mitigu ing circumstances to outweigh the ag- imposes t by spect subsections (5 , the 775.082. conteoncea — of saaother capital felony function or the enforcement of laws was especially heinous, atrocious, or cruel . (e) The capita) felony was committed for the purpose of avoiding or pre felony wes committed to disrupt or hinder the lawful waa a bomicide and was committed in a cold, caicu- manper witbout any pretense of moral or legal justi- > i (a) The capital felony was committed by a person under sentence of im- venting a lawful arrest or effecting an escape from custody. (f) The capital felony was committed for pecuniary gain. (>) The defendant was or of a felony involving the use or burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or flight after committing. or ettemptung to comait, any robbery, rape, arson, discharging of a destructive device or bomb. mi .--—h i Hi ality Hee git EI i eet if --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0967%3A1. Public record. Not legal advice.