Record and brief — Jeffrey Allen Muehleman v. Florida

a

— CERTIORARI

EDITOR'S NOTE

— —

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Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

867066

JEFFREY ALLEN MUEHLEMAN,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

JAMES MARION MOORMAN

PUBLIC DEFENDER

TENTH JUDICIAL CIRCUIT

~ _——BOUGLAS s CONNOR

Assistant Public Defender

Hall of Justice Building

P. O. Box 1640

Bartow, Florida 33830

(813)533-1184

ATTORNEYS FOR PETITIONER

QUESTION PRESENTED

Whether, after an accused has made incriminating state-

ments to a cellmate, the employment by the State of the cellmate

as itsagent to obtain further incriminating statements from the

accused and record them with a concealed electronic device violates

rights guaranteed under the Fifth, Sixth, and Fourteenth Amendments

to the Constitution of the United States?

TABLE OF CONTB@TS

OPINION BELOW

JURISDICTION OF THE SUPREME COURT

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX

1. Florida Supreme Court opinion in

Muehleman v. State

2. Order denying rehearing

3. Excerpt from transcript of pretrial

suppression hearing, held on May 1, 1984

4. Trial court's written order in

support of sentence of death

CERTIFICATE OF SERVICE

PAGE NO.

11

17

A 1-17

A 18

A 19-24

A 25-31

TABLE OF CITATIONS

CASES CITED:

Bunnell v. State

L353 SO d S08 (Fla. 1984)

Kuhlmann v. Wilson

. Sor Ct. 2616,

91 L.Ed.7d 364 (1986)

Maine v. Moulton

72 U.S. , 106 S.ct. 477,

88 L.Ed.7d 481 (1985)

Miranda v. Arizona

12 . Ct. 1602,

16 L.Ed.2d 694 (1966)

United States v. Henr

a4 g Tt. 2183,

65 L. Ed 2d 115 (1980)

OTHER AUTHORITIES:

Amend. V., U.S. Const.

Amend, VI., U.S. Const.

Amend. XIV., §1., U.S. const

Title 28, U.S. Code, §1257(3)

Rule 17, U.S. Supreme Court Rules

§843.035, Fla.Stat. (1983)

PAGE NO.

15,16

12,13,14,15,16

11,12,13,14,15,16

1,4,16

1,4,12,13,16

1,5

4

4

5

OPINION BELOW

The opinion and judgment of the Supreme Court of Florida

sought to be reviewed via this petition is reported at 503 80 74 310,

and is reproduced ‘n the appena « to this petition. (A 117.7

JURISDICTION OF THE SUPREME COURT

The Supreme Court of Florida issued its opinion in this

cause on Jam. sry 8, 1987. (A 1) Petitioner filed a motion for

rehearing, which was denied on March 27, 1987. (A 18) Petitioner

asserted below and asserts here a deprivation of his rights guaranteed

under the Constitution of the United States. Title 28, United States

Code, Section 1257(3) and Rule 17 of the United States Supreme Court

Rules provide for certiorari jurisdiction in this Court to review

this case.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Amendment V. to the Constitution of the United States:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the militia, when in

actual service in time of war or public anger; nor

shall any person be subject for the same offence tw be

twice put in jeopardy of life or limb: nor shall be

compelled in any crimi: al case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

2. Amendment VI. to the Constitution of the United States:

In all criminal prosecutions, the accused shall enjoy

the — to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been pre-

viously ascertained 4 law, and to be informed of the

nature and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the assis-

tance of counsel for his defence.

4

17 References in this petition to the record on appeal that was

before the Supreme Court of Florida are designated by an "R" followed

by the appropriate page number. References to the Appendix to this

petition are designated by an "A" followed by the page number.

aie

3. Amendment XIV., Section 1. to the Constitution of

the United States:

SECTION 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of .

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

STATEMENT OF THE CASE

When he was 18 years old Petitioner, Jeffrey Allen Muehleman,

left his home in Illinois and went to Florida to start over. (R 1076-

1077)

| On Mav 2, 1983, 97 year old Earl Baughman hired Petitioner

as a belper. (R 649-650,659,665,672-673) The following day Muehleman

cook Baughman and Baughman's friend, Virginia Petersciz., to the grocery

store. (R 651) On May 4 Muehleman took Baughman and Peterson to the

bank so that they could cash their social security checks. (R 651-652)

Baughman had a check for $426, as well as a personal check for $100.

(R 652)

On May 5, Earl Baughman and his 1961 Cadillac turned up

missing. (R 656,658,668)

Petitioner was arrested by Pinellas County, Florida, sheriff's

deputies the next day. (R 709-710) The deputies had no warrant, and

did not feel they ad probable cause to arrest Petitioner on any

charges relating to Baughman's aisappearance, but did feel they had

sufficient cause to detain Petitioner and have him answer some of the

questions they had regarding the disappearance. (R 590-591,612-613)

Petitioner was actually arrested, however, for “obstructing by false

information,” because he told the deputy who initially detained him

his name was Ed Buchanan.” (R 582-583)2/

2/ The statute pursuant to which Petitioner was arrested, section

843.035 of the Florida Statutes, was later declared unconstitutional

by the Supreme Court of Florida in Bunnell v. State, 453 So.2d 808

(Fla.1984).

Deputy Sheriff John Daniels read Petitioner his Miranda

rights, 3/ and Petit i ner agreed to talk. (R 597,681) Petitioner

geve Daniels his true name. (R 598,681) Petitioner said that he

last saw Earl Daughman on May 4 at around 10:00 p.m. when he left

him. At that time Baughman was fine. (R 598,681,781) Petitioner

dented any involvement in Baughman's disappearance. (R 598,681,781)

He did admit taking a cigarette lighter, some cosmetics, and other

small items without Baughman's permission. (R 600,682,782)

Petitioner invoked his right to remain silent on May 9.

(R 568, A 3)

On May 14, 1983 Earl Baughman's decomposed body was found

in the trunk of his Cadillac on a St. Petersburg, Florida street.

(R 716,720,785) Asphyxiation was the cause of his death. (R 724)

After Baughman's body was found, on May 17 Deputies Ron

Beymer and John Halliday interviewed Petitioner at the maximum security

county jail facility. (R 785,788) Petitioner continued to deny his

involvement in Baughmar's killing. (R 841) However, Beymer noticed

some inconsistencies with Petitioner's earlier statements. (R 791-793)

During the May 17 interview Beymer fed Petitioner false

information about finding gloveprints in the trunk of Baughman's car.

(R 834)

On May 18 Petitioner requested that Detective Halliday

return to the jail by Himself for another interview. (R 795,841) During

that interview Petitioner continued to deny his involvement in Baughman's

disappearance, and said he would beat the charge if he was charged with

the murder. (R 842)

While he was in the Pinellas County Jail, Petitioner came

into contact with an eight-time convicted felon named Ronald Rewis.

(R 734-736,758) Jail personnel placed Petitioner in the laundry on

C-Wing to work with Rewis, who was working with Detective Halliday. (R 410

2/ Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966).

Although Rewis told Petitioner he was not interested in

hearing about it, Petitioner discussed his case with Rewis on four

or five occasions. (R 738,745-746,755) According to Rewis, Petitioner

confessed to killing Baughman. Petitioner told Rewis he decided to

rob and kill the old man on the afternoon of May 4. (R 738-739) Peti-

tioner had discussed doing the crimes with another man, but he did

not show up. (R 739) Petitioner first set out two cups and some

bread crumbs on the table so that if someone checked the next morning,

it would look as if he and Baughman had eaten breakfast and gone for

a ride in the car. (R 742-743) He also wiped down items inside the

house from which his fingerprints could be taken. (R739) Petitioner

then took a frying pan off the stove, entered Baughman's bedroom where

he was sleeping, and hit him with it, opening Baughman's head. (R 739,

742) Petitioner told Rewis the pan made a gong“ sound, and laughed

about that. (R 739) The blow with the pan did not knock Baughman out,

and so Petitioner tried to strangle him with his hands. (R 739) This

was unsuccessful because the windpipe was very flexible. (R 739-740)

Petitioner then took the plastic wrapper from a newspaper and stuck

it down the man's throat. (R 740) He laughed when he told Rewis this.

(R 740) The plastic bag was bubbling in and out. (R740-741) Peti-

tioner took about $150 from Beughnen, wrapped his body in the bed-

covers, and put him in the car trunk. (R 741-742) He returned to

the house and began looking for more money. (R 741) He took a hot

water bottle and other items that had blood on them from the bed and

burned them in back of the house. (R 742) He then returned to a garage

apartment in which he had been staying, where he hid the money and

dropped off some tapes he had taken from the house. (R 742,744) From

there he drove to some apartments where he parked Baughman's car and

“wiped it down." (R 744) He had breakfast, returned to his garage

apartment, and went to bed. (R 744)

After Rewis heard details of the crime from Petitioner, he

alerted Detention Officer Jacobs, who put him in touch with the detec-

tives. (R 745-746) They asked Rewis to let them know if Petitioner

said anything else, and asked Rewis if he was willing to try to get

a tape of what Petitioner had been telling him. (R 746,757) Rewis

said he was willing to be "bugged," and the detectives equipped him

with a tape recorder monitoring device, which was concealed in the

front of his jail uniform. (R 747-748) Rewis did in fact tape a con-

versation with Petitioner in the recreation yard. (R 746-747) On the

tape Rewis asked Petitioner why he 444 net merely take the old man's

money, to which Petitioner responded that he had intentions of killing

the man to start with. (R 748) When Rewis asked Petitioner whether |

the killing bothered him, he said no, and laughed about it. (R 748)

On approximately three occasions Officer Jacobs called the

sheriff's deputies to relay information which Rewis had gotten from

Petitioner. (R 796) In this way the detectives learned on May 18 that

Petitioner was worried after they fed him the false information on the

17th concerning fabric marks being found in Bavghman's car. (R 834,856)

This is also how they learned that money was still hidden in the garage

apartment, and where it was located. (R 797-799) Rewis similarly pro-

vided them with information that another subject was involved in the

planning of the crime, that Baughman had been struck on the head with

an unknown object, and that there was blood on the bed that Petitioner

had hidden. (R 801,856-857) Rewis also conveyed information to ther

about a coffee cup and crumbs or items being strewn about Baughman's

kitchen. (R 800)

Detective Beymer interviewed Rewis on May 31, 1983, and

learned for the first time that a frying pan was used to hit the victim

and that something might have been burned in a barrel in Baughman's

back yard. (R 796-797,817) He took a taped statement from Rewis on

June 7. (R 806)

Ronald Rewis had given Officer Jacobs information about

other inmates on C-Wing on one other occasion. (R 863) He had also

provided information to another correctional officer relating to a

planned escape attempt by two inmates. (R 772,863-864, 943)

on April 21, 1983, Rewis had pled guilty to felonious

possession of a firearm. (R 461-462,760,943) The prosecutor had

recommended that he be sentenced to five years in prison. (R 943)

Although no promises were made to Rewis regarding his sentence, in

the back of his mind he thought he might get some help in this regard.

(R 750) And Detective Beymer did agree to be available for the sen-

tencing hearing. (R 808-809) When Rewis was finally sentenced on

March 2, 1984, he received five years probation, with a year of

specified residency in the county jail (credit for 201 days already

served) and two years community control. (R 461-462)

Detectives Beymer and Halliday interviewed Petitioner again

on June 8, 1983, at his request. (R 812,843) He initially denied his

involvement in the crime once again. (R 813) But then the detectives

confronted him with the evidence they had amassed against him, includ-

ing the fact that they had received information from Ronald Rewis, -

and that Rewis had worn a body bug. (R 814,844) Petitioner finally

admitted killing Baughman, and gave a detailed statement. (R 352-360,

€14,844) He said he killed the old man because he hated him and knew

he had obtained $500 at the bank. (R 814) The man was grumpy, would

not bathe, and urinated on himself. (R 815) Petitioner was homesick

and needed money to fly home. (R 814) He initially struck Beughman

with a small frying pan about six times, and took $145 or $153 from

his wallet and pockets. (R 815,819) He then tried to strangle him

with his hands for several minutes. (R 816) Baughman was still breath-

ing, and so he pushed a plastic bag down his throat. (R 816-817) He

could see the bag beginning to inflate, and so he pushed it further

down the throat. (R 817) A few minutes later Baughman had expired,

and Petitioner wrapped him in a blanket. (R 817) He cleaned up the

residence and burned some items that had blood on them, as well as

Baughman's wallet and identification, in the back yard. (R 817)

It was unclear when Petitioner actually made the decision

to kill Baughman. (R 846-847) He initially told the detectives he

had planned on doing it“ for two or three hours. (R 816) But when

he confessed on tape, he said he did not plan to kill him, but only

to knock him out. (R 355) He only killed him to keep him from

suffering when he realized he had probably caused Baughman brain

damage. (R 353,355)

It was on June 8 that Petitioner vas formally booked on

first degree murder charges. (R 854)

On June 10 Petitioner gave his final statement to DPetec-

tives Halliday and Beymer. (R 362-364,845-846) He again stated that

he initially intended only to knock Baughman unconscious and take his

money. (R 363) But after being struck with the frying pan a few times,

Baughman said, Oh, Jeff," and reminded Petitioner of his grandfather.

(R 363) At that point Petitioner felt he had to put Baughman out of

his misery, and not leave him brain-damaged or otherwise handicapped.

(R 363-364)

Petitioner moved to suppress all stacements he had made,

including those made to Ronald Rewis, and to suppress certain physical

evidence as the fruit of his illegai arrest. (R 225-231) The motion

was heard on May 1, 1984. (R547-631) At the hearing the prosecutor

conceded that Ronald Rewis was functioning as a state agent at the

time he wore the body "bug" to obtain incriminating evidence against

Petitioner. (R 566, A 23) The court denied the motion to suppress.

(R 232,620) ,

Immediately thereafter, Petitioner entered a plea of guilty

to the murder charge. (R 631-642)

A penalty trial before a jury was conducted on May 2-6, 1984.

(R643-1259,2230-2551) Before penalty phase testimony began, Petitioner

lodged a continuing objection to any evidence he had sought to suppress.

(R 2417-2418) The statements Petitioner made to Ronald Rewis were

introduced into evidence by the prosecution, including tapes of the

conversation in the recreation yard when Rewis wore the body bus

(R 738-745,746-749,1229-1231) During his closing argument to the

jury the prosecutor played a portion of the tapes and argued that

Petitioner's laughter thereon was a reason why he should be sentenced

to death. (R 2502-2503)

-10-

Petitioner's penalty phase evidence focused upon his troubled

upbringing, which included a host of physical ailments and psychological

problems. (R 862-1222)

By a vote of 10 to two, the jury recommended that Petitioner

be sentenced to death. (R 304,1254)

On June 8, 1984, the trial court sentenced Petitioner to die

in the electric chair. (R 307-308,1340) In support of the death

sentence the court found four aggravating circumstances to be present.

(R 309-315,A 25-31) He found Petitioner's age of 18 to constitute a

statutory mitigating factor under Florida's death penalty statute.

(R 315,A 31) The court cited the fact that Petitioner pled guilty as

being “probably the most mitigating factor." (R 1340) He also recog-

nized that Petitioner's capacity to appreciate the criminality of his

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

impaired, but did not find this impairment to be “substantial” enough

to qualify as a statutory mitigating circumstance. (R 314-315,A 30-31)

One of the issues Petitioner raised on direct appeal t the

Supreme Court of Florida was that the State's employment of Ronald

Rewis as its agent to obtain and record incriminating statements from

Petitioner violated his constitutional rights to counsel and to remain

silent. The Court did not 000 Petitioner's claim that his right

not to incriminate himself had been violated, but did find no violation

of Petitioner's right to counsel. (A 6-7)

REASONS FOR GRANTING THE WRIT

Petitioner's rights under the federal constitution were

violated by the State's use of Ronald Rewis as its agent to obtain and

record incriminating statements from Petitioner. At least at the

point where Rewis was wired with a concealed electronic device and

sent to engage Petitioner in conversation about the murder of Earl

Baughman, Rewis was fully functioning as a surreptitious State opera-

tive, a fact the State conceded before the trial court.

In United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183,

65 L.Ed.2d 115 (1980), the Respondent had been arrested and charged

.

with bank robbery. A government agent contacted an inmate named

Nichols, who informed the agent that he was housed in the same

cellblock with several federal prisoners awaiting trial, including

Henry. The agent told Nichols to be alert to any statements made

by these prisoners, but not to initiate any conversations with Henry

about the bank robbery, or question him about it. Nichols and Henry

thereafter did engage in conversations during which Henry told Nichols

about the robbery. Nichols was paid for providing the authorities

with this information.

This Court held the foregoing scenario violative of the

Respondent's Sixth Amendment right to counsel. The government had

circumvented Henry's rights “[b]y intentionally creating a situation

likely to induce Henry to make incriminating statements without the

assistance of counsel." 65 L.Ed.2d at 125.

Five years later the Court applied the principles expressed

in Henry in a somewhat different factual context in Maine v. Moulton,

474 U.S. 106 8 ct. 477, 88 L.Ed.2d 481 (1985). Moulton and Colson

were indicted for four counts of theft by receiving" after police

discovered evidence of automobile and automobile-related thefts in a

building the men were leasing. They were released on bail pending

trial. At a breakfast meeting during which the two men discussed

their case, Moulton suggested killing a State's witness, and he and

Colson talked about how to commit the murder. Shortly thereafter

Colson went to the authorities with his lawyer and fully confessed

to his participation with Moulton in the crimes with which they had

already been charged, as well as other crimes. The State struck a

deal with Colson in which no further charges would be brought against

him if he agreed to testify against Moulton and otherwise cooperate

in the investigation of Moulton omthe pending charges. (Additionally,

after Moulton's trial, Colson pled guilty to two of the four theft

counts, and received a very light sentence.) In conjunction with

this arrangement with the State, Colson agreed to allow a recording

device to be placed on his telephone. He recorded three calls from

Moulton, none of them incriminatory. During the third conversation,

-12-

at Mowlton's suggestion the two men agreed to meet on a certain day

to plan their defense. After learning of the scheduled meeting the

police obtained Colson's consent to be equipped with a body wire

transmitter to record what took place. (Ostensibly, the reason for

wiring Colson was for his own protection in case Moulton realized he

was cooperating with the police, and to gather information concerning

any further threats against witnesses, not to obtain evidence regard-

ing the pending theft charges.) The police instructed Colson not to

try to question Moulton, but just to be himself. During the course

of the meeting Moulton did make incriminating statements, some of which

came in response to Colson's questioning of Moulton under the guise of

refreshing Colson's memory as to events that had occurred. After

Colson's role as an informant was revealed-te-Moulton, the State had

the pending theft indictments against Moulton dismissed, and obtained

new indictments for the original theft offenses, as well as new charges.

Some of the charges were disposed of by plea or dismissal. At Moulton's

nonjury trial on the remaining charges, portions of the tape recording

of his meeting with Colson were admitted into evidence.

This Court held Moulton's Sixth Amendment right to counsel

to have been violated by the stratagem the police employed in wiring

their informant for sound when they “knew that Moulton would make state-

ments that he had a constitutional right not to make to their agent

prior to consulting with counsel.” 88 L.Ed.2d at 497.

In rejecting Petitioner Jeff Muehleman's contention that

Henry and Moulton applied to his case so as to render his statements

to Ronald Rewis inadmissible, the Florida Supreme Court relied upon

four factors: (1) Petitioner approached Rewis to discuss his case.

(2) Rewis approached the authorities on his own initiative. (3) Rewis

was at first instructed not to initiate any conversation with Petitioner.

(4) Rewis' efforts were not induced by any promises of any form of com-

pensation. (A 6-7)

The fact that Petitioner may have initially approached Rewis,

rather than Rewis having approached Petitioner, is essentially irrele-

vant. In Moulton, it was Moulton who made the call to Colson and

-13-

suggested an all-day meeting where the two men could discuss their

case. In fact, in Moulton this Court viewed Moulton's willingness

to talk as weighing against the State's position; the fact the police

knew Moulton would talk about his case at the meeting with Colson

showed the deliberate nature of the State's circumvention of his right

to counsel. Similarly, here the fact that Petitioner had spoken to

Rewis about his case in the past showed the sheriff's department that

Petitioner was vulnerable, a ripe subject for them to exploit by

recording incriminating statements with no attorney present. Further-

more, it is clear that it was Rewis who sought out Petitioner when the

time came to tape record Petitioner's inculpatory statements.

With regard to the fact that Rewis approached the authorities

on his own initiative, this first must be placed in context. Rewis

had previously given Detention Officer Jacobs information about other

inmates incarcerated on a particular wing of the jail, and had provided

information to another correctional officer relating to a planned

escape attempt by two inmates. He was accustomed to working hand- in-

glove with the authorities, and they undoubtedly expected him to come

to them whenever he had information they could use. Also, whether

Rewis first approached the authorities, or vice versa, has little

relevance. In Moulton, it was Colson who initially approached the

police to make a confession. While he may not have been the first to

suggest a deal, it appears certain that he was hoping for one to reduce

his criminal liability. And, again, it was the authorities, not Rewis,

who suggested that he be wired with the body bug“ and try to record

Petitioner on tape.

That Rewis initially was instructed not to initiate any con-

versations with Petitioner has no relevance to whether the tape of the

conversation in the courtyard was suppressible; at the point the sheriff's

deputies outfitted Rewis with the electronic device they clearly expected

him to initiate a conversation with Petitioner regarding the Baughman

disappearance and “get in on tape."

Finally, with regard to the compensation issue, the contingent-.

fee arrangement Nichols had in Henry was only one factor in the way this

580

Court decided the case. In Moulton the informant received no monetary

compensation whatsoever. Here Ronald Rewis was hoping for compensation

from the State in return for his cooperation in Petitioner's case in

the form of a lesser sentence on the charge of felonious possession of

a firearm to which he had already pled guilty , but for which he had

yet to be sentenced. And he did in fact receive a much lighter sen-

tence than the prosecutor had been recommending prior to Rewis' coopera-

tion with the sheriff's department. Rewis had eight felony convictions

and had worked with law enforcement as an informant in the past; he

thus was in a position to know that he could expect favorable treatment

if he provided the State with information useful to them in a major

criminal prosecution.

This is not a case such as Kuhlmann v. Wilson, 477 Us

106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), in which the jailhouse informant

played essentially a passive role as a "listening post"; Ronald Rewis

clearly engaged in active questioning of Petitioner designed to elicit

the damaging remarks and laughter that were secretly recorded in the

jail courtyard.

In the instant case, as in Henry, Rewis “deliberately used his

position to secure incriminating information from [Petitioner] when

counsel was not present 65 L.Ed.2d at 122. And here, as in Fenry,

the government informant built up a relationship of trust with his

fellow inmate, stemming from their shared plight of incarceration,

that enabled the agent to obtain inculpatory statements

The statements gathered by Rewis were extremely damaging to

Petitioner. It was not until sheriff's deputies confronted Petitioner

with the evidence they had amassed against him, notably the fact that

Rewis was working as a state operative and had recorded Petitioner on

tape, that Petitioner confessed to law enforcement authorities; before

then his statements to them had been exculpatory. Knowing his admissions

4/ That Petitioner came to trust Ronald Rewis is clearly reflected in

the record of this case. Petitioner told Rewis Goeetiy that he felt

he could trust him immediately before Petitioner made his first admis-

sions regarding Earl Baughman's murder. (R 738)

to Rewis were preserved on tape must have served as a powerful incen-

tive for Petitioner to confess. At that point he had little left to

lose.

Unlike in Wilson, the sheriff's deputies did not have “solid

evidence," 91 L.Ed.2d at 385, that Petitioner was responsible for

Earl Baughman's death prior to his statements to Rewis and subsequent

confessions to the detectives.

The prosecutor employed the tape of the conversation in the

courtyard for dramatic effect by playing a portion thereof at the end

of his penalty phase argument to the jury and urging them to sentence

Petitioner to death on the basis of his laughter on the tape. And

Petitioner's confessions were the primary source of the trial court's

factual recitation in his written order in support of the death sentence

relative to the manner in which Earl Baughman was killed and the sur-

rounding circumstances.

Ronald Rewis was, in effect, functioning as a surrogate

detective for the Pinellas County Sheriff's Department. Pursuant to

the Henry and Moulton decisions, the confessions he garnered in this

capacity, in particular the tape recording of the courtyard conversa-

tion, should have been suppressed.

Although Moulton and Henry are couched in terms of the Sixth

Amendment right to counsel, Petitioner submits that the Fifth Amendment

privilege not to incriminate oneself is also implicated where. as here.

the State deliberately pursues a course of conduct which is designed

to, and which does, cause one who is incarcerated to give up his right

to remain silent, with no procedural safeguards to assure that the

relinquishment of the right is made knowingly. voluntarily. and intelli-

gently.

0.

CONCLUSION

Upon the authorities and reasons presented in this petition,

Petitioner, Jeffrey Allen Muehleman, prays this Honorable Court to

issue a writ of certiorari to the Supreme Court of Florida.

17

APPENDIX

ITEM:

1. Florida Supreme Court opinion in

Muehleman v. State

2. Order denying rehearing

3. Excerpt from transcript of pretrial

suppression hearing, held on May 1, 1984

4. Trial court's written order in support

of sentence of death

PAGE NO.

A 1-17

4 18

A 19-24

A 25-31

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No. 65,546

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JEFFREY ALLEN M’URLEMAN, Appellant,

v.

STATE OF FLORIDA, Appellee.

(January 3, 1987

ADKINS, J.

— Court of Florida

Received By

Appellate Division

Public Dofenders Office

Jeffrey Allen Muehleman, convicted of first-degree murder

pursuant to 4 plea of guilt and sentenced to death,

conviction and Sentence. We have jurisdiction,

3(b) (1), Pla. Const. We affirm both...

The testimony and evidence before the

established the following scenario. Muehleman,

appeals his

Art. v, §

trial court

identifying

himself as Jerr Williams, was’ hirea by the victin, 97-year-old

Earl Beughman, as o “helper” on May 2, 1983.

r, he had decided to kill and rob the vict

By the afternoon of

Be began that evening by Placing on the kitchen table two

almost-empty coffee cups and some bread crumbs in order to create

an appearance the next morning that he and the victim had eaten

breakfast and gone for a ride in the victim's car,

n the apartment in order to remove his f

He then wiped

ingerprints, grabbed a

cast iron frying pan, and crept into the bedroom where the victim

lay sleeping. with the frying pan, he repeatedly

Struck the

41

biet in · head with sufficient force to send flying the man's

dentures and Splatter the bed linens, walls and Curtains with

blood.

Muehleman then attempted to Strangle tre elderly man, but

found his neck too flexible to Successfully restrict the flow of

blood to his brain. In a later statement, Muehleman indicated

that the victim at this point lay helpless, Staring up into the

murderer's face, and remained conscious enough to beg for mercy,

muttering words to the effect of “Jeff, oh, Jeff ee -" No mercy

was forthcoming. Muehleman proceeded to remove the plastic

wrappers from two newspapers and shoved them into the victim's

throat. Frustrated when the plastic bags continued to bubble in

and out with the victim's weakening breath, he Pushed the

suffocating plastic mass deeper.

Be then stole $150 from the victia, wrapped the body in

the bloodied bedcovers, and Placed it in the trunk of the

victim's 1961 Cadillac. After stopping by the garage in which bh.

was staying to stow the cash and other personal objects he had

Stolen, he returned to the victim's residence and burned some of

the blood-covered linens and the victim's identification in a

barrel in the backyard. He then wiped down the car for

fingerprints, drove it toe nearby apartment complex, and

abandoned the vehicle. *

The disappearance of the victim, along with his car,

immediately aroused Suspicion because he did not drive. on May

6, a witness called the Police and informed them that he had seen

the victim's early model Cadillac, described in e broadcast,

parked in front of the garage in which Muehleman had been

residing. A police officer was dispatched to that address to

question Muehleman. Upon arriving at the address, the officer

was informed that Muehleman had borrowed « bicycle and would be

returning shortly. The Police left the residence, and within

thirty seconds Spotted Muehleman.

When Muehleman saw the police car, he covered his face

with his arm, looked Up, jumped off the bicycle and turned

@round. Before he could run, the officer grabbed his arm and

witness Positively identified him as Jeff, Muehleman was

and agreed to talk, Denying any involvement in the victim's

4isappearance, Muehleman indicated that he had taken

monogrammed Cigarette lighter and some Other Smal] Objects

motions were denied, he plea guilty. Following his Sentencing

A3

* *

the right to appeal shal) have no tight to a direct appeal,

Section 924.06(3), Florida Statutes (1985); Pie. R. App. p.

9.140(b), has no @pplication in the context of Capital review.

question from the court as follows:

Q: You @lso give up the right to

@ppeal any error that may have been

committed thus far in the Proceedings, you

understand that?

A: Yes, sir.

Nevertheless, we follow the mandate of section 921.141 (4),

Florida Statutes (1985), that leihe judgment of Conviction and

Sentence of death shal) be subject to automatic review by the

Supreme Court of Plorida,* and turn to an examination of the

First, it is argued that the trial court Committed

rights were Violated first by an illegal Arrest and later by some

illegal Searches of the garage in which he was temporarily

Fesiding. we reject both contentions. Pirst, the Officer actea

properly in effecting the initia) *tOP Of Muehleman. the stop

was amply justified by “specific and articulable facts...

taken together with rational inferences from these facts. State

had similarly disappeared. A BOLO had been issued the day

Purpose of ascertaining his identity. 5 901.151(2), Pla. Stat.

(1983); State . Cook, 475 so. 24 285 (Fla. sen DCA 1985).

*

*

, When the suspect falsely identified himsels as Ed

Buchanan, and an apparently reliable witness identified him as

“Jeff,” the officer had probable cause to arrest Muehleman on the

first-degree misdemeanor charge of “obstructing justice by false

information” under section 843.05, Florida Statutes (1983). This

Court's subsequent invalidation of the statute in Bunnell v.

State, 453 8. 2d 808 (Fla. 1964), does not render the earlier

arrest invalid. Michigan v. DePillipo, 443 U.S. 31 (1979). We

therefore find the initial detention and arrest lavful. Ser

State v. Stevens, 421 So.24 41 (Pla. 34 DCA 1982).

Muehleman's second fourth amendment claim involves three

warrantless searches of the garage in which he had temporarily

resided. Ris initial argument, that the search was tainted by

the illegal arrest, United States v. Robinson, 625 F.2d 1211 (Sth

Cir. 1980); Norman v. Stats. 379 So.24 643 (Pla. 1980), must fall

in light of our disposition of the first issue.

Even acknowledging that Muehleman may have had a

“reasonable expectation of privacy” in the garage, we find that

under these circumstances the state has met its burden of

establishing the validity of his consent to the initial search.

Raffield v. State, 351 8. 2 945 (Fla. 1977). Purther, we find

that on these facts the consent given by the property's owners to

two later searches was properly obtained. The owners had merely

allowed Muehleman to temporarily sleep in the garage, which was

not an apartment; the owners continued to use the garage fox

storage. A highly informal rent agreement was reached and the

owners’ continued access to the garage remained unquestioned.

Because these circumstances leave little doubt as to the owners’

capacity to validly consent to the search, Preston v. State, 444

80. 2d 939 (Fla. 1984); Silva v. state, 344 So.24 559 (Pla. 1977),

we reject Muehleman's second fourth amendment claim.

Muehleman next contends that his fifth amendment privilege

against self-incrimination was violated in the course of tou

interviews conducted by the police after he had invoked his right

to silence on May 9. The facts of the case do not support this

contention. AS noted by the United States Supreme Court in

-s-

AS.

Michigan vy. Mosley, 423 u.s. 96, 102-03 (1975), Miranda cannot

“sensibly be read to create @ per se proscription of indefinite

dura t ion Upon any further questioning by any police officer .. 0

once the person in custody has indicated @ desire to remain

silent.*

The first interview complained of was conducted eight days

after his invocation of his right to silence on May 17. Clearly,

the authorities had Scrupulously honored Muehleman's "right to

Cut off questioning” as mandated by Mosley. Wo contention is

of a written waiver. The later interviews not Only folloved the

signing of written waivers, but were initiated by Muehleman. we

decline to depart from our holding, soundly based in sensible

fifth amendment jurisprudence, that “({tihe law does accora [a

suspect) the opportunity to voluntarily change his mind and

~ Confess.* Witt v. State, 342 So.24 497, 300 (Pla.), cert.

Genied, 434 U.S. 935 (1977), Cannady v. State, 427 so.24 723

(Pla. 1983),

Muehleman's next claim involves an alleged violation of

his sixth amendment right to counsel. He contends that fellow

. became a state agent for the inpernissinic

Purpose of acquiring incrimingting evidence which Properly lay

beyond the state's reach. * ton, 106 s. ce. 477

(1985); Onited States v. Henry, 447 U.S. 264 (1980). We fine jn

this case no violation of Muchleman's sixth amendment rights, as

* review of the facts discloses that his incriminating admissions

meee BOS © product of @ **stratagen deliberately designed to

elicit an incriminating Statement. '* Miller v. State, 415 80. 2

1262, 1263 (Pla. 1982), cert. denied, 459 U.s. 1158 (1983)

(quoting Malone v. State, 390 80. 24 338, 339 (Pla. 1980), cert.

ales. 450 U.S. 1034 (1981)).

Aé

* ;

suthorities on his own initiative. Bottoson v. State, 443 80, 2d

962 (Pha. 1983), cert. denied, 105 8. c. 223 (1904); Barfield v.

State, 402 So.24 377 (Pla. 1981). Third, Rewis was at that point

instructed not to initiate any convei sations with the Suspect.

Finally, no evidence exists in the record that Rewis’ efforts

were induced by promises of any form of compensation. The

Mewis ‘o record information which had been offered freely by

Mushleman and previously reported by Rewis, itself violated

Muehleman's Sixth amendment rights. We find, as did the trial

penchant for loose talk and Rewis' turning to the authorities on

Me own initiative, we cannot find that the use of the tape

Fecording device transformed these facts into a violation of

Muehleman's right to counsel.

Mushienan's next issue on appeal turns on our disposition

ot the above constitational clains. Based on his contention that

Mis plea, and resulting conviction and sentence, were bottomed on

. evidence, he argues that his conviction and sentence

must now be vacated. Anderson v. State, 420 So.24 574 (Pia.

1982).

Ae we Bave rejected his claims as to the admissibility of

the evidence, we likewise reject the instant claim. In fact,

Meving carefully reviewed the record, we find mushieman's ples of

Du to charges Of first-degree murder to have been freely and

voluntarily given and amply supported by . factual basis in the

record. LeDuc v. State, 365 So.24 149 (Pia. 1978), cert. denied,

444 U.S. 885 (1979), § 921.141(4), Pla. Stat. (1985), Fle. R.

App. P. 9.14008).

x

A7

* ;

In his third issue on appeal, Muchleman argues that his

absence from the courtroom @uring a pre-trial Suppression hearing

and the later jury charge conference violated his sixth amendment

right of confrontation and his fourth amendment due process

rights. We do not agree.

First, the voluntariness of his absence at both phases of

the proceedings renders inapplicable such Precedent as Francis v.

State, 413 So.24 1175 (Pia. 1982). Second, this Suppression

hearing was not a crucial stage of the trial, “where fundamenta\

fairness might be thwarted by his absence.* Rertog v. State, 43°

$0.24 1372, 1375 (Pla. 1983) (quoting Francis, 413 8. 24 at

1177). A capital defendant may waive his Presence at a crucial

state of the proceedings, Peede v. State, 474 So.24 808 (Pia.

1985), and should therefore & fortior’ be free to waive his right

to be present at a non-crucial stage.

The waiver through counsel of Muehleman's right to attend

the jury charge conference was given as follows:

Muehleman's obvious Participation in this waiver represents more

shan the mere scquiescence in tnd knowledge of counsel's request

which has been found sufficient in Amazon v. State, 487 So.24 8

(Pia. 1986), and State v. Melender, 244 80 24 137 (Pia. 1971).

Under these circumstances, Muehleman should not now be heard to

argue that his absence at the charge conference prejudiced his

case. We therefore find no basis for his claim that his absences

violated his constitutional right to be present at trial.

Muchleman next contends that the triel court erred in

admitting into evidence during the penalty phase « “Juvenile

Social Mistory Report* detailing hie juvenile criminal record.

We find no error. AS we noted in Welty v. State, 402 So.24 1159,

1262-63 (Fle. 1981), leide trial court has wide discretion in

areas concerning the admission of evidence, and, unless an abuse

ot discretion can be shown, its rulings will not be disturbed.*

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43

require exclusion from the jurors' consideration in the context

Of the penalty phase of 6 cepital triai. $ 922.142(2), Pie.

Stat. (1985). Second, we once again affirm the Proposition that

the bottom line concern in questions involving the admissibility

Of evidence is relevance. Ruffin v. State, 397 so. 24 277 (Pla.),

SER. denied, 454 b. 8. 992 (1981), Ashley v. State, 265 so. 24

685 (Fla. 1972). The evidence became relevant when a peychiats ic

nvers “iteese £08 he Gofense etated thet he hed considered un,

report in formulating his Opinion. 1e is Proper for a party

— 2 Sane the Rotery weiliced ty the expert os

— the capers's opinion bee & peepee basis.

Parker v. State, #76 So.24 134, 139 (Pla. 199%),

history of Prior criminal activity." ¢ 921.141 (6) (a), Pla. Star.

(198s), Meggerd v. State, 399 80. 2 973 ie. ), cere. Sealed. 454

—ÄE——— censets,

3

emission of the evidence.

-9-

49

*

» the instant case closer to Parker z. state, 476

80. 2 134 (Pla, 1985), than Maggard. tn Parker, as in Maggard

and the case at bar, the defendant had expressly waived any

intention to rely upon the mitigating cireumstence of no

significant prior criminal history. tn Parker, too, the trial

Court admitted evidence of prior crimes. The difference between

Parker end Maggard is that in the former we found no error in the

trial court's action.

We find this case controlled by Parker, in which the

evidence was properly admitted in response to the extensive

exploration by the defense of “appellant's past personal and

social developmental history, inclu@ing a prior criminal

history." 476 So.24 at 139. The presentation of the previous

crimes in Parker through cross-examination is functionally

equivalent to the evidence here presented in rebuttal. In the

instant case, unlike in Maggard, the trial court exercised its

@iscretion in admitting the testimony not to rebut 6 phantom,

waived mitigating factor, but to expose the jury to « more

complete picture of those aspects of the defendant's history

which had been put in issue. The testimony of Muehleman's

nt on his mother, first, served to properly rebut, or at

least supplement, extensive evidence presented by the defense

focusing on the mother/son relationship and implying that his

mother had indirectly caused the murder through lapses in

Muehleman's upbringing. The trial court admitted the testimony

concerning the other crimes in rebuttal to the defense e expert

testimony, presented in mitigation, thet Muehleman lacked

substantial capacity to plan in advance and execute crimes.

Parker made clear that the mere existence of e strategica!

wsiver by the defense of the mitigating factor does not end the

analysis. Im order to evaluate the alleged error, we must

Consider the evidence admitted, any prejudice accruing to the

Gefendant therefrom, and the purpose for its edmission. See

Zennings v. State, 453 So. 24 1109, 1114 (Pia. 1904), cert,

:.. . on other grounds, 105 $.ct. 135)

(1985). In light of the relevance of this evidence in rebutting

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eine se thet the trial court erred in

pe transcr taped interview of Richard Wesley,

acquaintance of Muehleman's who Originally pleaned to

— ht omen Tt de contended that the edmission of

extremely prejudicial evidence, which clashed with

mohlenan's testimony that he had only intended to sob the

victim, violated his sixth amendment right to confront the

witnesses ageinst hin.

Bruton v. United States, 391 0.5. 123

(2968); Mell v. State, 381 So.24 683 (rie. 1979).

We noted in Hol} that “(tine crux of « Bruton violation is

the introduction of statements which incriminate an sccused

wi opportuni TOSS ~@mamine

— — ty to c the

lerant.* 361 8 d at 687. We find this language

inapplicable, as the state offered to sake Wesley available for

Me tetas ca —..— argues thet

improperly restricted his presentetion of

evidence in mitigation, including the testimony of his

Srandmother, and limited evidence of Ronsid Rewis* prior crimine)

history. Because fifteen witnesses testified ac to Muehleman's

Precedent cited

such as Gedderd v. State, 143 Fie. 29, 196 So.

11

— — —

All

f"

cases involved the penalty phase of « capital triel. As we noted

in Bush v. State, 461 So.2¢ 996, 941 (Fle. 1984), cert. denied,

206 S.Ct. 1237 (2906), he rule sqainet inflammatory anc

abusive argument by « state's attorney is clear, each case must

be considered upon its own merits and within the circumstances

pertaining when the questionable statements were made. '* (quoting

Darden 2 State, 329 So.24 287, 291 (Fie. 1976), cert. diemiseed,

430 U.S. 704 (1977)).

The propriety of prosecutorial comments must be examined

in context. A statement found out of place and prejudicial when

ande to 6 jury evalusting the defendant's quilt say quite

properly bear on the aggravating circumstances set forth in

section 921.141(5). Muchleman complains, for instance, of thr

prosecutor's characterisation of the vet ie as « “feeble, sict'y,

97-year-old man.” Such « statement could indeed tend to excite

pession in the jury. We cannot, however, rewrite on the behelt

of the de tense the horrible facts of what occurred or make thy

slaying appear to be less reprehensible than it sctuslly was.

We find thet the statements complained of were highly

relevant in establishing the following eggreveating fectors: the

commission of the murder during the course of « robbery, sectiny

921.141(5) (4); its commission for the purpose of evoiding 4

lewful arrest, section 921.141(5) (e); the especially heinous,

atrocious end cruel nature of the crime, section 921.141(5) (h);

and its cold, calculated and premeditated neture, section

921141 0% (4). To eum, we find no abuse Of discretion in the

trial court's supervision of the prosecutor's comments éuring the

course of the trial. Teffeteller v. State, 439 So.2¢ 840 (Fis.

1983), cert. denied, 465 0.5. 1074 (1984).

Muchleman next attacks the jury instructions es given a

the eggraveting and mitigating circumstances found spplicable to

his case. We have carefully reviewed each of these contentions.

They ere without merit.

Finally, in „ supplemental brief, Muehleman argues that

our recent decision of Yan Royel vy. State, Ho. 66,144 (Fila. Sept.

us, 1986), compels us to now vacate Muchleman's sentence of death

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Ale

and . for the imposition of e life sentence. We find the

instant case reedily ¢istinguisheble from Yen Royal, in which we

were forced to conclude from « number of circumstances thet “this

Court Cannot seeure itself thet the trial judge based the oral

Sentence (of death) on « weli-ressone? applicetion of the factors

eet out in section 971.141(5) and (6) [. Ploride Statutes (1961))

and in Tedder v. State, 322 $0.24 908 (Fis. 1975),° Slip op. at 6,

, 15

* case, the trial court's written findings overrode « jury

recommendstion of life. followed Sentencing by over six months,

and wore filed only after the record on appesi hed been filed

with this Court. Although we once agsin vigorously stress that

these written findings should be preps ed contemporaneously with

the imposition of sentence, we cannot find Yen Roysl

determinative of this case. Sere, the written findings followed

she * recommendation of death, ant were filed two and one

Belf months after sentencing, two sonths price to the

certification of the record te this Court. as in Terguson v.

Stete, 417 So.24 639, 641 Orie. 1982), we hold thet lese

oe the cupplamental record includes the trisl judge's written

findings this iseve is now soot. *

PILes aL UNTIL TIME EXPIRES TO FILE RENFARTWG MOTION AND. tF

— eee ae — m 2—

— a —

Alz

* *

—

‘

SHAW, J., specially concurring.

The record here is not entirely clear, but it appears that

the trial judge and counsel met Prior to trial to consider a

series of defense motions without summoning appellant to be

present. One or more of these motions concerned the suppression

of evidence. After approximately thirty to sixty minutes of

arguments by counsel and rulings by the court, a recess was

called to permit defense counsel to consult appellant. When the

court reconvened shortly thereafter, appellant was present and

heard the prosecutor comment that appellant had been absent

earlier and had not waived his absence. Defense counsel replied

that there was no problem. The trial court then proceeded to

hear further argument and to receive testimony on the suppression

of evidence. Under these circumstances I am satisfied that

appellant ratified his earlier absence and that there was no

error or, assuming there was error, it was harmless error.

I write to express ay disagreement with the majority

holding that a suppression hearing is not a crucial stage of the

trial. The United States Supreme Court has recognized that

“suppression hearings often are as important as the trial

itself." Waller v. Georgia, 467 U.S. 39, 46 (1984). The case at

hand is an apt illustration. ‘after the trial judge denied the

motions to suppress the evidence, appellant immediately changed

his plea from not guilty to guilty. In short, the entire issue

of guilt turned on the suppression issue and the suppression

bearing was, in effect, the trial. The right of a defendant to

be Present at a suppression hearing is crucial to the right of

confrontation. Normally, a suppression hearing consists of the

state putting on witnesses and evidence to show that the police

acted properly and there was no violation of the defendant's

constitutional rights as, for example, in obtaining a confession,

affecting an arr-:t, or Conducting @ search and seizure. More

often than not, the defendant was present when the evidence wa:

obtained and his presence at the suppression hearing may well be

crucial to effective cross examination and representation by

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Al4

— 7 oe” * 8 * °

* „ a *

defense counsel. I am persuaded that appellant ratified his » Che specially Concurring.

partial absence here and that the error was harmless; but, I

reject the general notion that a suppression hearing is not a

crucial stage of the trial.

As for the voluntariness of appellant's absence during

part of the suppression hearing, the record is silent. Under

Plorida Rule of Criminal Procedure 3.180(b), “voluntary” is „

word of art and is not used in the dictionary sense. It is ith the

only because Dorsey on the y

limited to those instances where a defendant voluntarily abe the record Feflects that the tri — Sees

ot sentenc al udge

himself without leave of court or is removed from court because 19g 414 engage in the j i the time

Fequicite weighing Process

of disruptive conduct. The record is silent but we should not

assume that an absent defendant does not have leave of court to

be absent or has been removed at the court's Girection. I note

here that court and counsel proceeded without appellant until

they reached e point where it was necessary to consult appellant,

whereupon a recess was taken and appellent was present hort)

thereafter during the latter part of the hearing. A defendant

charged with first-degree wurder does not routinely come and yo

at will. The most logical explanation for appellant's early

absence and later presence is simple: court and counsel chos to

proceed initially without Summoning appellant from his holdiny

cell. The record is silent ds to whether this was done with or

without his knowledge.

I am also persuaded, contrary to the holding in Herzog v.

State, 439 8. 2 1372 (Fia. 1983), on which the majority relie-,

that a defendant is required to be present during s pretrial

suppression hearing by Florida Rule of Criminal Procedure

3.180(a)(3) and/or (6). Generically, « pretrial suppression

bearing is a pretrial conference for the Purpose of addressing

evidence outside the presence of the jury to determinc if the

evidence should be introduced to the jury. . E

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Alf Ale

IN THE SUPREEM COURT OF FLORIDA

FRIDAY, MARCH 27, 177

*

* * * ‘

i JEFFREY ALLEN MUEHLEMAN, oe

Appellant, 0 CASE NO. 65,546

An Appeal from the Circuit Court in and for Pinellas County, vs *

Crockett Parnell, Judge - Case No CRCB304974CF .

. ANO Circuit Court Case No.

. STATE OF FLORIDA, oe CRC8304924CFANO (Pinellas County

James Marion Moorman, Appellee. ee

Assistant Public . . Moeller, —

N v

for Appellant Recei g

ag 30 1997

Jim Saith, 3 General and Ga

Migliore, Jr., Assistant Attorneys General, Tanpe, Poneto, Appellate Divis.on 7

for Appellee Pubic deere“ slice

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.

McDONALD, c. J., OVERTON, EHRLICH, SHAW, BARKETY, JJ., and

- ADKINS, J. (Ret.), Concur

|

On consideration of the motion for rehearing filed 87

attorney for appellee, . 1

IT IS ORDERED by the Court that said motion be and the

| same is hereby denied.

McDONALD, c. J., EHRLICH, SHAW, BARKETT, JJ., and ADKINS, J. Fer.

Concur

OVERTON, J., Dissents

-1?- - c

cc: Hon. Karleen F. DeBlaker, Clerk

Hon. Crockett Farnell, Judge

Robert F. Moeller, Esquire

Gary ©. Welch, Esquire

Al7 Al%

a

te

ee eee — — — — —— —

reserve ruling on a motion or portion of a motion to

suppress and can rule on that during the trial period.

I would merely point out the hazard of

doing that is jeopardy has atteched. As far as the

Court is concerned, we have no objection to proceeding

in that fashion.

THE COURT: No problem with doing it that way.

The only thing I'm concerned about is voir dire and

opening statements causing a problem.

MR. CROW: Obviously, I think it's going to be

necessary to mention the confession to police and

confession to Smart.

The situation of Rewis is somewhat

different and he would have to be transported over here

and perhaps we could see how long the testimony in the

other thing is going to take and if it looks like we

are putting Rewis on today and how we can handie. At

present, maybe get the jury selected and get the

officer on tomorrow.

THE COURT: That is where I see we are going.

MR. CROW: Maybe we can have Rewis available and

if it looks like we can dispose of that and get Rewis

done before then, go ahead end proceed and not delay

that, assuming the Court doesn't grant the motion to

suppress confession. That would put us in a different

GREGG R. STONE

K ASSOCIATES

OFFICIAL CIRCUIT COURT REPORTERS

562

4

posture.

MR. MCMILLAN: Judge, the fects regarding Mr.

Rewis 1 attempted to lay forth in the motion. I don't

knew if there is really «a feetuael dispute. i'm not

alleging -- we are alleging at the time he took « taped

statement, he was acting at the request of lew

enforcement, which would make him an agent and,

therefore, under Florida Statutes allowing wire taps,

would also releave him of liability.

We are not alleging he was placed there as

a plant originally. We are not alleging that he was

originally operating under the direction of lew

enforeement.

THE COURT: Seems to me that releaves the

necessity of testimony; does it not?

MR. CROW: I would think so, Judge.

There ere more fects in our favor then

that. I think, for instance, the statements were made

on several -- three, four oecasions to Mr. Rewis at «

time prior to him having en contect with the

detectives in the case. Had hed over « twenty-day

period numerous conversations, perhaps every day, with

Mr. Muehieman and the conversation which led to the

tape was not made in any way by law enforcement and not

done at the direction of law enforcement.

GREGG R STONE

K ASSOCIATES

OFFICIAL CIRCUIT COURT REPORTERS

583

P A20

And after he fully confessed on three or

four prior oecasions to Rewis et the time they

routinely come in contact at « break in the yard. The

only thing the police did was put e bug on him, did not

request him to engage in conversation. In fact, told

him just the opposite. The only thing the police were

involved in at all in this conversetion's occurance was

it wes in any way, just as in the past without our

participation or knowledge, is to have the evidence of

it and that was, in essence, it.

On a couple of prior occasions, Mr.

Muehleman was edvised not only by Mr. Rewis but by «

Detention Officer Jacobs that he should keep his mouth

shut and not talk to anybody. The substance of the

conversation is that he was asking for advice on

various things and feeling out what the police knew

about it.

Some additional facts, at some point,

become relevant and if the Court is not inclined to

agree on a factual basis, at sume point, let us put it

on the record for the Appellate Court and that would be

fine with me.

Ane if you don't feel there are sufficient

fects and they do not need to suppress and if it comes

up on appeal and under 3.859, ail of the facts would be

GREGG R STONE

& ASSOCIATES OFFICIAL CIRCUIT COURT REPORTERS

564

— — — — — — —2—2— el

42

2 MR. MeMILLAN: If the Stete is basically

| ; proffering that as to the testimony of Mr. Rewis, we

' have no problem with thet prof ‘er.

& Just as far as clarification of the issue,

6 I'm not sure whether Mr. Crow is maintaining a position

| 7 that Mr. Rewis was or was not « law enforcement agent

a at the time of the taped interview.

" Mr. Rewis testified and law enforcement

10 testified consistent with whet Mr. Crow indicated, thet

1 there was a series of conversations between these

12 individwais. At some time, Mr. Rewis went to the

1 1 detention center and put him in touch with the

11 detective and Mr. Rewis told him what he knew and they

15 then put a tepe on him and he went and taped a

10 conversation he hed with Mr. Muehieman. Those were the

17 fects.

1s MR. CROW: I'm conceding that he conceded to iaw

enforcement to wear the bug but the conversation and

0 | the meeting was not arranged by law enforcement. It's

＋ something that would have occurred without any of their

perticipation and, therefore, that is the distinetion

that hes significance in the care law.

21 THE COURT:

All right. 1 eaceept that.

You are also conceding he was, in fact, of

(RIC RK STON

. \ww Ww 74!

— ees eer ee er ͤ —üũZU— —-: ee ee — — eee ee

THE COURT: Then, uniess I'm not in tune with

course, an agent of the law enforcement?

MR. CROW: I don't know that is the issue. As

fer as U.S. vs. Henry, Judge, I think the issue is the

conversation was created or elicited by the State. I'm

not conceding that. Agent is a word that can have «

your thoughts end | think we are in agreement, it cen

; be handied at a later point in the proceedings.

4 MR. McMILLAN: That's correct.

5 THE COURT: We are down to the arrest; are we

0 not?

lot of meaning.

He was acting under the direction of lew , MR. CROW: Am I correct in indicating upon the

enforcement in wearing the tape. That would be the

extent of it. In fect, it makes him an agent for that

1 facts we agree to there is no basis for suppression and

1 what we will be doing later is supplementing the record

10 for appeal end not to talk about this in voir dire or

purpose and that would be « concession, that is what

| " opening if I choose to do so?

the fects would be.

MR. McMILLAN:

MR. McMILLAN: Florida Statute on interception of Your Honor, are you making «

communication makes it a felony. Interception on 1 finding you are sccepting the proffer as if it were

11 testimony?

1* THE COURT: Yes, I am.

tes MR. CROW: The only thing thet thet leaves us

communication makes it « felony and except to the

purpose of this case as law enforcement and the purpose

of gathering evidence.

MR. CROW: Theat is not correct. Acting under the 7 with ere the issues on the statements to police

10 officers and any issues we cen limit through the

direction of law enforcement is the term | used.

MR. McMILLAN: And the purpose of the 10 | waivers and volunteriness. If you want to do that, no |

interception of communication is for the purpose of

probien.

gathering evidence about e criminal episode. Seems like they are saying there is something

MR. CROW: I Graw a distinction between the

recording and conversation, Judge. Fewls was advised,

"Don't initiate any conversations. if he approeches,

as to the legal communication between the arrest and, I

guess, the May 8th situation where he invoked his right

1

te 93

= 1

— —

— . ——

* THE COURT: Help me with the chronology agein.

ask him about it.”

GREGG R STONE

& ASSOCIATES OFFICIAL CIRCUIT COURT REPORTERS X ASSOLIATIS (NIN CROCHET! CORT REMmers

566

’

’

|

CRC. R Stow

i

— 423 42⁰

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY silver dollar dated 1886, the victim's year of birth. During this

CRC83-04924CFANO-C same incident, the defendant went on to manually strangle the victim

STATE OF FLORIDA : F ! LED using sufficient force to break the hyoid bone in the victim's throat.

: 9 2

vs. : FIRST bre wide A The victim finally died by asphyxiation when plastic newspaper bags

JEFFERY A. MUEHLEMAN f CLERK cancun count were forced down his throat through the windpipe, blocking the flow

—— — Deputy g '

2 ome of air to the lungs and depriving the brain of oxygen.

2) The Court further finds that the aggravating circumstance

COURT'S FINDINGS AS TO AGGRAVATING AND MITIGATING

CIRCUMSTANCES IN SUPPORT OF THE IMPOSITION OF THE DEATH PENALTY of F.S. 921.141(5)(e), that the murder was committed for the purpose

of avoiding or preventing a lawful arrest or effecting an escape

The defendant, JEFFERY A. MUEHLEMAN, pled guilty to murder in from custody, was established beyond and to the exclusion of every

the first degree of Earl Baughman. A jury was then inpane led and reasonable doubt. In making this finding, the Court is aware of case

evidence presented in the penalty phase. After deliberation, the law construing this factor which indicates that it applies to situations

jury by a vote of 10 to 2 returned a recommendation to the Court to where a dominant motive of the homicide is to eliminate a witness

impose the death penalty. After weighing the aggravating and miti- to the crime who might later identify the perpetrator and subject him

gating circumstances, and in accord with the jury's recommendation, to prosecution. Routly v. State, 440 So2d 1257 (Fla 1983). The

the Court imposed the penalty of death upon the defendant, JEFFERY A. evidence in this case overwhelmingly establishes this to be the case.

MUEHLEMAN . | | Upon first taking the job of caring for the elderly victim,

) the defendant gave a false name. The day before the murder, the

AGGRAVATING CIRCUMSTAIICES | defendant sought the aid of - acquaintance (Richard Wesley) to acsist

— him in committing the crime and disposing of the body. The evidence

1) This Court does now find that the aggravating circumstance indicates that little force was actually necessary to accomplish the

of F.S. 921.141(5)(d) was established by the evidence to and beyond | taking of property. The victim was 96 years old and asleep in the

every reasonable doubt. The capital felony was committed while the bedroom and his age and infirmity prevented him from offering serious

defendant, JEFFERY A. MUEHLEMAN, was engaged in the robbery of Earl physical resistance. The degree of force ultimately used on the

Baughman. The evidence clearly established beyond every reasonable victim and the determination of defendant to make sure the victim

doubt that between the evening of May 4, 1983, and the morning of was dead far exceeded that necessary to commit the crime.

May 5, 1983, the defendant robbed 96-year-old Earl Baughman by force Detailed precautions were taken by the defendant to prevent

and violence. According to the defendant's confessions, Mr. Baughman the police from discovering the true fate of the victim. According

was struck on the head with a cast-iron skillet. Physical evidence to the defendant's statements, crumbs and a cup of beverage were

from the scene indicates that as a result of these blows, the victim's planted at the table to make it appear the victim had eaten breakfast.

dentures were knocked from his mouth and that bloodstdins from the the body was vemoved, placed in the trunk of the victig's vehicle

resulting injuries were left on the bed linen, wall, and curtains. and driven to another location where it was abandoned. The house

Numerous items of property belonging to the victim were stolen by was cleaned and wiped of prints; the victim's wallet burned in the

the defendant and found to be in his possession shortly after the backyard. The defendant told acquaintances that he intended to leave

murder, including money, 4 monogrammed cigarette lighter, and 4 town the same day that he was ultimately stopped by the police and

x

300 Aas 310 424

arrested. During the defendant's initial untaped confession to the

police, he told them that one of the reasons he killed the victim was

because the victim might Le able to identify him as his assailant.

3) The Court alse finds that the aggravating circumstance of

F.S. 921.14115)(h), that the crime was especially heinous, atrocious

or cruel,is established beyond and to the exclusion of every

reasonable doubt. Case law construing this aggravating factor requires

this Court to focus on the effect upon the victia himself to determine

whether it is “the consciousless or pitiless crime which is unnecessarily

torturous to the victim”. State v. Dixon, 283 So2d 1 (Fla 1973).

Even in circumstances where death was instantaneous, courts have upheld

a finding of this factor where the victim experienced mental anguish

and fear prior to the infliction of the fatal wounds. Routly v. State.

440 So2d 1257 (Fla 1983). Im the instant case, death was not

instantaneous.

The medical examiner testified that death by asphyxiation

would normally result after minutes and unconsciousness may result

within 30 - 60 seconds of constant strangulation. The physical pain.

fear, and mental anguish experjenced by the defenseless 96-year-old

men are incalculable. The evidence indicates that the victim did

suffer during the fatal assault, was conscious and did beg his

esseilant, the defendant, for mercy. The defendant's statement to

the police, to Times reporter Christopher Smart, and to jail inmate,

Ronald Rewis, indicate he struck repeated blows to the victim's head

with « cast-iron frying pan. Although the blows did not kill the

victim, and did not fracture any bones, they were of sufficient force

to apparently knock out the victim's dentures and to splatter blood

on the walls and curtains and to leave « substantial blood stain on

the mattress and bed linens. Undoubtedly, these blows were sufficient

to cause substantial pain and suffering to a victim who remained

conscious and alive. According to the defendant's statements, he

then proceeded to manually strangle the victim; the deterioration of

the body prior to discovery made it impossible to calculate the

tissue damage caused by this force, but it was clear that the force

wae Guest — 22 @ tens Se the aes K Ä

-3-

311 A27

cr *

According to the defendant's own confession, the victim was

alive and conscious during the assault; at one point, he reached up

to the defendant and said words to the effect, “Jeff - Oh Jeff".

Similarly, according to the defendant's statements to Ronald Rewis,

the victim was conscious. According to the defendant's statements,

he choked the victim for an “unbelievable amount of time" but he would

not die. The victim's throat was too flexible for him to stop the

passage of air to his lungs. This statement is consistent with the

medical examiner's testimony that strangulation causes death by con-

stricting the blood vessels in the neck and stopping the flow of

oxygenated blood to the brain, not by blocking the throat and pre-

venting the passage of air. When this failed to kill the victim, the

defendant released his hold on the victim's throat, got plastic bags

and returned to stuff them down the victim's throat. It is apparent

from the defendant's statements that the victim was still alive and

breathing at this point. The defendant, according to the medical

examiner, would have had to use great force to overcome the gag reflex

and insert his hand down the throat through the trachea and into the

windpipe. When the defendant saw the bag was still inflating (and

the victim still breathing) he stuffed the bags even further. .

According to his taped statement to Rewis, as could be heard on the

tape, the victim was still struggling and moving around all over the

bed as the bags were stuffed down his throat. The Court finds that

this murder is especially wicked, willful, atrocious, and cruel.

5) The Court also finds that it was established beyond every

reasonable doubt that the murder of Earl Buaghman was committed in

a cold, calculated and premeditated manner without any pretense of

moral or legal justification, as set forth in F.S. 921.141(d)(5)(1).

The evidence indicates that the defendant contemplated the commission

of the murder well in advance of its commission. He had attempted

to enlist a second person to help commit the crime and dispose of the

body and followed through on his own when that person did not show up.

The manner of commission of the murder displays strong determination

to effect the victim's death. The proof in this case clearly

demonstrates the crime was committed not only in a premeditated

ain

312 A 29

manner, but one which was as well both cold and calculated. This

established the higher type of premeditation necessary for this

aggravating circumstance.

The Court is aware of the defendant's statements that he

killed the victim out of “mercy”, to prevent the victim from suffering

after he had inflicted probable brain damage upon him with a cast-

iron skillet. The Court specifically rejects this explanation as

being overwhelmingly disproven by the evidence.

MITIGATING CIRCUMSTANCES

The jury was instructed on three mitigating circumstances:

1) The capacity of the defendant to appreciate the criminality of

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

was substantially impaired; 2) The age of the defendant at the time

of the crime; and 3) Any other aspect of the defendant's character

or record, and any other circumstances of the offense.

However, the Court has considered all statutory and non-

statutory mitigating circumstances in reaching it's decision:

1) No significant history of prior criminal activity. This

factor was specifically waived by the defense from being considered

by the jury. The record before the Court is clear that the defendant

does have a substantial record of criminal activity and, therefore,

the Court finds this circumstance does not apply and was not supported

by reasonably convincing evidence.

2) The crime for which the defendant is to be sentenced was

committed while he was under the influence of extreme mental or

emotional disturbance. There was no testimony which indicated that

the defendant was operating under a disturbance sufficient in degree

to have established this mitigating circumstance. Moreover, the

evidence concerning the manner and means of commission of the crime

as reflected by the physical evidence and statements of the defendant

clearly indicate this circumstance was not applicable. The Court finds

that this mitigating circumstance is not applicable nor is it supported

by any reasonably convincing evidence.

3) The victim was a participant in the defendant's conduct,

or consented to the act. The Court finds this circumstance is clearly

inapplicable and is unsupported by any evidence.

4) The defendant was an accomplice in the offense for which

he is to be entenced, butthe offense was committed by another and

defendant's participation was relatively minor. All the evidence

established the defendant acted alone in killing the victim. There

is evidence that the defendant attempted to enlist another's

(Richard Wesley's) aid, but that person did not actually show up

or assist in the crime. The Court therefore finds that this circum-

stance is not applicable and is not supported by any reasonably con-

vincing evidence.

o. fendant acted under extreme duress or the substantial

domination of another person. The Court finds this circumstance to

be inapplicable and that it is not supported by any evidence.

6) The capacity of the defendant to appreciate the criminality

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

tantiall aired. There is testimony from one defense

psychiatrist that the defendant suffered from an “attention deficit

disorder" which prevented him from appreciating the criminality of

his conduct or conforming his conduct to the requirements of the law.

This diagnosis differs from that reached by the other defense expert

who also found that while some impairment was evidenced, it could

not be termed “substantial”. The Court also finds that the mitigating

circumstance of "substantial" impairment is rebutted by evidence that

the defendant planned to commit the crime in advance, tried to involve

a second person in it, delayed commission of the ctime until the

victim was in bed and no other witnesses were present, and took

meticulous steps to cover up the crime - all of which indicate he

understood the criminal nature of his conduct and had the ability

to conform his conduct to the law. When it suited his purpose, i.e.

in getting the job, in dealing with associates and the police, and

in dealing with the friends and relatives of the victim, the defendant

demonstrated the capacity to control his conduct and delay his impulses

to commit crime. The Court therefore finds in light of all the

313 427 314 A30

|

~ —— —

evidence that this circumstance is not supported by reasonably

convincing evidence.

7) The age of the defendant. The Court does find that the

defendant's age at the time of the crime, 18, does constitute a

mitigating circumstance. The Court doesalso determine that this

mitigating eirouetence is clearly outweighed by the four established

aggravating circumstances.

8)

and any circumstance of the offense. The Court has also considered

all the evidence presented to see if any non-statutory circumstances

other aspect of the defendant's character or record

exist which in conjunction with defendant's age might outweigh the

aggravating circumstances. Specifically, the Court has considered

the psychiatric testimony as to the defendant's possible impairment,

the testimony of relatives and friends concerning the defendant's

troubled background and family life, his character and his past

physical and emotional problems, previous opportunities and help

offered to the defendant, and the testimony of jail officials as to

his conduct within the jail system as well as the voluminous documents

and other evidence presented by the defense.

The Court rules that there are no non-statutory mitigating

factors.

The Court does, therefore, find that aggravating circum-

stances outweigh any and all mitigating circumstances and that the

death penalty is the appropriate and legal penalty which the Court

does impose on JEFFERY A. MUEHLEMAN.

in Chambers, Clearwater, Pinellas County,

DONE AND :

Florida, this AS day of — 1984.

CIRCUIT COURT JUDGE

Copies to:

State Attorney

Public Defender

315 A3l

CERTIFICATE OF SERVICE

I, DOUGLAS S. CONNOR, a member of the Bar of the

Supreme Court of the United States and counsel of record for

JEFFREY ALLEN MUEHLEMAN, the Petitioner, hereby certify that on

May 20, 1987, pursuant to Supreme Court Rule 28, I served a

single copy of the foregoing Motion for Leave to Proceed in Forma

Pauperis on each of the parties as follows:

On the State of Florida, The Respondent, by depositing

said copy in the United States Post Office, Bartow, Florida, with

first class postage prepaid, properly addressed to Robert J. Landry,

Assistant Attorney General, Park Trammell Building, 1313 Tampa

Street, 8th Floor, Tampa, Florida 33602.

Assi ant public defender

Supreme Court. 0 8.

FILED

MAY 21 887

JOSEPH F SPANIOL, JR.

CLERK

86-7066

I, DOUGLAS S. CONNOR, a member of the Bar of the

Supreme Court of the United States and counsel of record for

JEFFREY ALLEN MUEHLEMAN, the Petitioner, hereby certify that on

May 20, 1987, pursuant to Supreme Court Rule 28, I served a

single copy of the foregoing Petition for Writ of Certiorari to

the Supreme Court of Florida with attached Appendix on each of

the parties as follows:

On the State of Florida, The Respondent, by depositing

said copy in the United States Post Office, Bartow, Florida, with

first class postage prepaid, properly addressed to Robert J. Landry,

Assistant Attorney General, Park Trammell Building, 1313 Tampa

Street, 8th Floor, Tampa, Florida 33802.

OPPOSITION

BRIEF

—

ORIGINAL ©

Case No.

IN THE SUPREME COURT OF THE UNITED STA

JEFFREY ALLEN MUEHLEMAN,

Petitioner,

v.

STATE OF FLORIDA

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR 1 OF CERTIORARI

I”

SECOND DISTRICT CORT OF APPEAL

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

GARY ©. WELCE

Assistant Attorney General

1313 Tf Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

COUNSEL FOR RESPONDENT

86- 7066 endes

JUL 10 i987

SUPREWE Cove

CLERK

Las

„ ..

enn... 66600

ann. BERG, . cccccccccccccscccccccccccccceecccesccccccccecouel

. ..

EEE eee eee eee eee eee

Kuhlmann v. Wilson,

106 S.Ct. 2616 an. 12 ——

Maine v. Moulton,

ava 9.8. — 106 S. ct. 477, we L.84.24 481 2

Muehleman v. State,

503 So.24 310 (Pile. — ——

United States v. Henry,

a4? 6.8. 264, 100 S. ct. 2183, 65 L.84.24 115 ä

United States v. Vitale,

728 . 20 1090 ed Cir. — 99

Vitale v. United States,

105 g. et. 103 ———

OPINION BELOW

The opinion of the Second District Court of Appeal sought to

be reviewed is reported es Muchlemen v. State, 503 So.2¢ 310

(Plea. 1967).

STATEMENT OF PACTS

Muehleman initially approached Rewis and sade repested

atteapts to discuss the details of the crime with Rewis. Rewis

initially attempted to dissuade Suehlesan “from talking too

much". Thereafter, Rewis approached « corrections officer, who

in tern pleced Rewis in contact with lew enforcement officers.

Rewis consented to being equipped with a recording device. Rewis

wes instructed sot to initiete r conveersation with

Muehlesan. Rewis" efforts were sot induced by law enforcement.

Muchlenan vy. State, 503 So.24 310 (Fla. 1987).

The instant cause involves neither an informant which ected

in @ manner so a8 to induce the petitioner to spest sbout the

crime or tactics by stete officials designed to elicit statesents

(such es compensation to inforsgents who obtein incriminating

Sstetesents). Sub jeudice, the sole strategy was to preserve that

which wes volenterily sede without inducement; sot to induce and

record incriminating statements. As such, petitioner's reliance

om Meine +. Boulton, 474 0.8. . 106 S.Ct. 477, 68 . 8.2 481

(1985) ee Qnited States +. Bency, 447 0.8. 264, 100 S.ct. 2283,

6S .. % 115 (1980) is inaeppropriete. This point wes recog-

nized im Qnited States v. Vitale, 728 F.24 1090, 1092 (8th Cir.

1984) and this Court denied certiorari; Vitale v. Gnited States,

105 S.Ct. 103 (1984). As this Court noted in Bubimann ». Silson,

106 S.Ct. 2616 ot 2630, =. 12 (1986): „% Gefendent eust show

state ection “designed Geliberately to elicit incriminating re-

ares The fects found by the state court ere contrary to

this. MSueblepan vy. State, $03 So.2¢ 310 (Pile. 1987). To the

-l-

extent that the petitioner differs with facts found in state

court, his claim would be more appropriate to a habeas corpus

petition in Federal District Court. Certiorari in this Court

would be a waste of this Court's scarce resources.

Assuming arguendo that the issue is of the magnitude to war-

rant this Court's review, the instant case is not of that magni-

tude since any error of constitutional proportions is harmless

and the judgment below is valid in light of the peitioner's con-

temporary confession to a newspaper reporter who was not a

government agent, the corroborating tangible evidence and the

petitioner's plea of guilty.

CONCLUSION

Based on the above argument and authorities, the respondent

respectfully submtis that the Petition for Writ of Certiorari be

denied.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

— 7

—

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

I HEREBY CERTIFY that a true and correct copy of the fore-

going has been furnishec dy U.S. regular mail to Douglas S.

Connor, Assistant Public Defender, Hall of Justice Building, 455

North Broadway Avenue Worth, P. o. Box 1640, Bartow, Florida

33830, this KK day of July, 1987.

SUPREME COURT OF THE UNITED STATES

JEFFREY ALLEN MUEHLEMAN v. FLORIDA

COURT OF FLORIDA

No 86-7066 Decided October 5, 1987

The petition for a writ of certiorari is denied.

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MUEHLEMAN vt. FLORIDA

Kuhlmann, because an identical instruction was given to the

informant in Henry. See United States v. Henry, supra, at

266. What we found compelling in Kuhlmann was not

recognized to the prohibition established in Henry and

Maine, and that exception may be invoked only in cases in

which the informant can truly be described as a mere “listen-

ing post.” This is not such a case.

Ill

Although I think that the Florida Supreme Court misread

our precedents in rejecting petitioner's Sixth Amendment

claim, its error is one that is lamentably easy to make. Our

in this area involve several factual scenarios that

vary only slightly. We have given little guidance on which

factual variations are relevant to or dispositive of Sixth

Amendment claims. We owe it to law enforcement officials

and the courts to establish clearly the line across which con-

stitutional error lies. For that reason, we should grant this

petition for certiorari.