Opposition Brief — William Eutzy v. Florida

WO. 64-6182

RECEIVED

In THE 14 4 Res,

SUPREME COURT OF THE UNITED STATES OFFICE OF Tet Coren

October Term, 1984 n

WILLIAM EUTZY,

PETITIONER

.

STATE OF FLORIDA,

RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

Jim SMITH

ATTORNTY GENERA!

LAWRENCE A. BADEN

ASSISTANT ATTORNEY GENERA!

(COUNSEL OF RECORD)

DIPAPTMENT OF LEGAL APPATRS

TRL CaAriTol

TALLABASSEE,. FLORIDA 1230)

(904) 488-0600

COUNSEL FOR RESPONDENT

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STATEOENT OF THE CASE

REASONS WHY THE WRIT SHOULD BE DENIED

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STATEMENT OF THE CASE

Petitioner's statement of the case is unacceptable

because it is self-serving, contains improper argument and

innuendos, and does not contain “appropriate references

to the record as required by Rule 34.1(g) of the Rules of

the Supreme Court. The following facts, as found by the

Florida Supreme Court in Eutzy v. State, 458 80. 2d 755, 756-757

(Fla. 1984), are submitted:

William Eutzy and his sister-in-law,

Laura Eutzy, were stopped in the

Pensacola airport by a security rd.

Appellant identified himself as —

Sanders, but Leura Eutzy gave her

correct name. The couple was later

seen getting into a taxicab driven by

the victim, Herman Hughley.

A dispatcher for the cab company

for which Hughley drove testified that

Hughley reported picking up a fare

at the airport with a destination

in Pensacola Beach. Forty-five

minutes later, Hughley reported that

the destination had been changed to

Fort Walton; ten or twenty minutes

later he notified the dispatcher that

they were going to Panama City.

Three-and-a-half hours after the

last report, Hughley notified the

dispat r of his return. When the

dispatcher asked him to repeat his

message she got no res se. Repeated

attempts to reach Hughley were

unsuccessful.

Hughley's body was discovered in

the front seat of his cab by a

driver for the same cab company,

Mary Beasley. She had seen ley

with the Eutzy couple at the airport

the evening before. Her curiosity

was ar when she drove past

Hughley's cab, rently deserted,

on the edge of the Pensacola Junior

College eempus. Other witnesses

were abie to testify it had been

there since approximately the time

of Hughle s last contact with his

dispatcier

William and Laura Eutzy were

picked up while trying to hitchhike

out of town the day after Hughley's

body was discovered. They had been

2 by Jackie Humel was at

that time on her way to the police

department to make a statement in

efe

the Hughley case. She had seen Hughley

and appellant at the spot where Hugh]

was later discovered dead at about che.

time Hughley radioed in his last report.

Laura Eutzy had a pistol, later

— to be the murder weapon, in

r purse at the time of her arrest.

She testified before the grand jury

and at Eutzy's trial that she had

ridden in back seat of the cab,

Sones off and on. Eutzy had sat

int ront with Hughley. To the

best of her knowl „ Eutzy had had

only five dollars they hired the

cab; she — ~ Ay. money. She did

not know t were going to pay

the cab fare. Appellant said he would

take care of it. When they returned

to Pensacola, Eutzy had the cab

driver drop Laura off at a Holiday

Inn. He t rode off with Hughley.

When 441 returned, Laura asked

him if had taken care of the fare.

He answered in the negative and he

told Laura he had hit the driver on

the head with the gun but had not

hurt him. Laura testified that she

had not been aware that he had raken

the until he returned ic to her

at that time. On the morning they

were arrested, Laura read « story

about Hughley s murder in the local

newspaper and realized for the first

time t had happened, according to

her testimony.

Eutzy was tried for first-degree

murder. The jury found him guiity

of first-degree premeditated murder,

using a special verdict form. At the

guilt phase, evidence was presented

that Eutzy had a prior conviction for

7 Eut zy presented no evidence

of mitigating circumstances. Tle jury

rec a life sentence but the

judge declined to follow that

recommendation. Finding three

eggravering factors--conviction of a

prior violent felony, murder committed

during a robbery, murder was cold,

calculated and premeditated--and no

la — circumstances, the trial

judge enced Eutzy to death.

The above facts are upplemented with the following

evidence which was proven at trial. The State introduced

the testimony of a pathologist who stated that the cause of

death was a single gunshot wound to the victim's head and

that the bullet had entered just slightly behind and above

the victim's ear (K 241). The State also introduced testimony

that the fatal bullet had been fired from the gun which was in

evidence and that the test pound pull on the trigger of that

gun was harder than average (R 250). A state witness

testified that because of the residue on the victim's cap,

it was estimated that the pistol had been fired from between

three and six inches from the victim's head (R 251).

The jury was instructed that each aggravating

circumstance must be proved beyond a reasonable doubt (T 332).

No objection was made to any of the instructions (T 334).

1

CERTIORARI SHOULD NOT BE CRANTED BECAUSE

WHETHER THE FLORIDA SUPREME COURT HAS

ADOPTED AN UNCONSTITUTIONAL STANDARD

OF PROOF WHICH IRES A DEFENDANT TO

DISPROVE THE HEI PREMEDITATION

REQUIRED TO FIND THE AGGRAVATING

CIRCUMSTANCE THAT THE MURDER WAS

COMMITTED IN A COLD, CALCULATED, AND

PREMEDITATED MANNER WAS NOT PASSED UPON

BY THE FLORIDA SUPREME COURT BECAUSE

THE ISSUE WAS NOT RAISED UNTIL A MOTION

FOR REHEARING WAS FILED.

This Court has long recognized that the mere presence

of a federal question “lurking” in a case is not sufficient

to overcome the presence of an adequate non-federal ground

which would justify the denial of a petition for writ of

certiorari to a state court. When the federal grounds upon

which review is sought in this Court were not presented to

the state courts, or not properly presented to the state courts,

or not passed upon by the state courts, the Court has recognized

that it is not appropriate for the Court to exercise its

certiorari jurisdiction. Tacon v. Arizona, 410 U.S. 351,

352 (1973). See also Brennan, State Court Decisions And The

Supreme Court, 31 Penn. Bar Assn. Q. 393, 399-400 (1960).

The reason for the rule, and the reason why Respondent submits

that certiorari should be denied in this case, is that the

state courts must first be afforded an opportunity to consider

and decide the federal question.

Under Florida law the scope of a motion for rehearing

is extremely limited--even in a capital case. Jacobs v.

Wainwright, 450 5, 2d 200, 201 (Fla.), cert. denied, _ U.S.

___,» 83 . 4. 24 433 (1984). Florida courts routinely

prohibit defendants from raising new matters for the first

time on appeal. Sarmiento v. State, 371 8% 2d 1047, 1053

(Fla. 34 DCA 1979), approved, 397 So.2d 643 (Fla. 1981). There-

fore, since under Florida law this issue was not presented

to the state courts in a timely fashion and since the summary

denial of the motion for rehearing indicates that the issue

was not considered, there exists an adequate and independent

state ground to support Petitioner's state court judgment

and sentence.

Assuming only for the sake of argument that Petitioner

overcomes the jurisdictional hurdle asserted above, Respondent

submits that certiorari still should not be granted. This

is because there is no constitutional problem with Florida's

law concerning the statutory aggravating circumstance listed

im §921.141(5)¢i), Fla. stat, i.e., that “[t}he capital

felony was a homicide and was committed in s cold, calculated.

and premeditated manner without any pretense of moral or

legal justification.”

In Zant v. Stephens. ___ U.S. ___, 77 L.£d.2¢ 235,

249 (1963). the Court recognized that for an aggravating

circumstance to be constitutional, it “must genuinely nerrow

the class of persons eligible for the death penalyy and must

reasonably justify the imposition of a more severe sentence

on the defendant compared to others found guilty of murder

The Court went on to recognize that “(w)hat is importent at

the selection stage is an individualized determination on the

basis of the character of the individual and the circumstances

of the crime.” Id. at 77? L. Ed. 2 251.

If Petitioner is contending that this Court's juris-

diction is based upon the fact that in his opinion the cold,

calculated, and premeditated aggravating circumstance is

unconstitutional, his claim is foreclosed by the Court's

opinion in Zant v. Stephens. supra. On the other hand, if

Petitioner is contending that this Court should exercise

its jurisdiction because the Florida Supreme Court has been

j

improperly following its own law, his claim is foreclosed by

the Court's recent opinion in Barclay vy. Florida, «U.S. __.

7? L.£d.2¢ 1134 (1983). Im that case, the Court was faced

with an argument that the Florida Supreme Court had improperly

been applying its own cases in determining whether to uphold

the defendant's death sentence. However, this contention was

squarely rejected--"the obviows answer to this question, as

indicated in the previous discussion, is that mere errors

of state lew are not the concern of this Court, Gryger v. Burke.

334 U.S. 728, 731 (1948), unless they rise for some other

reason to the level of a denial of rights protected by the

United States Constitution.” Barclay v. Florida, at 7? L.Ed.2¢

1149.

Finally, showld the Court be concerned that «

substantial federal question has been presented (despite the

Court's holding in Barclay. supra), review still should not

be granted because the facts of Petitioner's case demonstrate

that no constitutional violation occurred. This is because

the jury in Petitioner's case was clearly instructed by the

trial court that lelach aggravating circumstance wust be

established beyond a reasonable doubt before it can be

considered by you in arriving at your decision.” (T 332)

The instruction could not have been more clear.

Also, as the Florida Supreme Court correctly found,

the evidence introduced by the State at trial more than

demonstrated the “heightened premeditation” required to sustain

the finding of the aggravating, circumstance in question.

Butsy v. State. supre at 458 So.2¢ 758. As was pointed out

by the State in its brief om direct appeal, this was the

classic execution type Ale (Brief of Appellee et 17

Petitioner's appendix I). The wictim was shot in the side

of the head from « distance of approximately three to six

inches, and there were no signs or evidence of a struggle

which might possibly justify self-defense. Moreover, Petitioner

hed told Laurea Butzy that he hed planned to “take care” of the

cab fare, and he lied to her after the surder occurred. It

should also be pointed owt that Petitioner obtained the pistol

sometime prior to the cab ride and that the victim was seen

alive in Petitioner's presence just prior to the surder and

that the cab was parked in a remote area which ultimately

permitted Petitioner to commit the gurder without fear of

observation.

In summary, this Court should not exercise its

discretion to grant certiorari in this case because an

adequate independent state ground exists, ie the issue wes

never properly presented to the state courts and the state

courts have not ruled upon it. Tacon vy. Arizona. supra. in

the alternative, the State submits that certiorari should

not be granted because the aggravating circumstance in

question passes constitutional guste: under lant v. Stephens.

supra. if Petitioner's argument is thet the Florida Supreme

Court das not been applying its own law properly, such

argument is foreclosed by this Court's recent opinion in

Barclay v. Florida. supra. The Florida Supreme Court found

as a matter of fact under state lew that the agereveting

cirewmstance existed. This factual finding is supported

by the record and offers no reasonable basis for this Court

te grant review. The jury was instructed that each aggravating

circumstance must be proven beyond a reasonable doubt and

the ewidence as summarized by the Florida Supreme Court

was more than sufficient from which the aggravating cireun-

stance could be found te have been established beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).

« J«

Il

CERTIORARI SHOULD NOT BE GRANTED

BECAUSE THE ISSUE OF WHETHER THE

FLORIDA SUPREME COURT PROPERLY FOLLOWED

ITS OWN LAW CONCERNING JURY OVERRIDES

DOES NOT PRESENT A SUBSTANTIAL FEDERAL

QUESTION IN LIGHT OF THE COURT'S

. 8

In essence, Petitioner has asked this Court to review

his case merely on the basis that he disagrees with the Court's

opinion in Barclay v. Florida, supra. Despite the fact that

Barclay involved a jury recommendation of life which was

overridden by the trial court and despite the fact that in

Barclay (as in Petitioner's case), «0 mitigating circumstances

existed, Petitioner is contending that jury overrides are

constitutionally impermissible when the 41 court relies

upon an aggravating circumstance which has been thrown out

by the Florida Supreme Cc rt. It is the State's position

that the Court should not exercise its certiorari jurisdiction

to re-decide in this case what it just decided in 1983.

It should also be pointed out that even counsel for

Petitioner has recognized that under Florida law, only one

aggravating circumstance is required to support a sentence

of death. See State v. Dixon, 283 80. 2d 1, 9 (Fla. 1973),

which was cited at page 20 of the petition for writ of

certiorari. See also Zant v. Stephens, supra. Moreover,

it should not be overlooked that the only reason the

aggravating circumstance in question was thrown out was

because the State thought the case involved a robbery

whereas the Florida Supreme Court concluded that the State

should have attempted to prove the aggravating circumstance

involving whether the murder was committed for pecuniary

gain. See §921.141(5)(f), Fla. Stat. Thus, when applying

the so-called “harmless error rule, the Florida Supreme

Court realized that Petitioner could have been tagged with

three valid aggravating circumstances rather than two.

ln any event, the State contends that certiorari should

not be granted on this issue because Barclay held that a death

sentence was constitutional even though an aggravating

circumstance has been thrown out by the state appellate court.

And this is especially true when, as in Petitioner's case,

there was no evidence submitted in mitigation and no evidence

was found by the trial court to justify a mitigating circum-

stance.

Ill

CERTIORARI SHOULD BE DENIED BECAUSE

WHETHER FLORIDA'S LAW WHICH PERMITS THE

JUDGE TO OVERRIDE A JURY'S ADVISORY

LIFE SENTENCE IS UNCONSTITUTIONAL AS

APPLIED WAS REJECTED JUST THIS PAST

, 82 L.Ed. „ AN

BECAUSE THIS ISSUE WAS NOT CONSIDERED

BY THE FLORIDA SUPREME COURT BECAUSE

IT WAS NOT TIMELY RAISED.

Certiorari should be denied on the issue of whether

Florida's law is unconstitutional as applied because the Court

just decided this question in Spaziano v. Florida, supra.

However, should the Court somehow be persuaded that it should

revisit its opinion in that case, the State submits that

Petitioner's case is inappropriate for review because the

Florida Supreme Court refused to consider the issue on its

merits because Petitioner did not timely raise the issue in

the state courts. It cannot be disputed that the Florida

Supreme Court squarely held that “(t)his issue was not timely

raised before the trial court and thus was not preserved for

appeal.” Eutzy v. State, supra at 458 So.2d 757. Accordingly,

review should not be granted on this issue.

e Me

CONCLUS 10%

The State of Florida respectfully submits that certivrari

should not be granted because the issues upon which review is

sought either were not properly presented to and ruled upon

by the state supreme court or because the issues have already

been decided adversely to Petitioner in both Barclay -.

Florida, supra, and Spaziano v. Florida, supra. The lower

court's opinion is constitutionally sound, and Petitioner

has offered no substantial federal question which needs to

be resolved by this Court.

Respectfully submitted,

JIM SMITH

ATTORNEY GENERAL

Lasse A. KADEN

Assistant Attorney General

The Capitol

Tallahassee, Florida 32301

(904) 488-0600

COUNSEL FOR RESPONDENT

e „

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by U.S. Mail to Steven L. Bolotin,

Assistant Public Defender, Second Judicial Cirewit, Post

Office Box 671, Tallahassee, Florida, 32302, om this 28th

day of February, 1985.

Kran A Kw

LAWRENCE A. KADEN

OF COUNSEI!