Petition for Writ of Certiorari — Allen Lee Davis v. Florida
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IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
ALLEN LEE DAVIS,
Petitioner, RECEIVED
_ MAR 2.0 1985
STATE OF FLORIDA, OFFiGe OF THE CLERK
SUPREME COURT, U.S.
Respondent. _ ae
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF FLORIDA
MICHAEL E. ALLEN
PUBLIC DEFENDER
SECOND JUDTCIAL CIRCUIT
STEVEN L. BOLOTIN
ASSISTANT PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
POST OFFICE BOX 671
TALLAHASSEE, FLORIDA 32302
(904) 488-2458
ATTORNEY FOR PETITIONER
(Member of the Bar of This Court)
QUESTION PRESENTED
QUESTION
IN LIGHT OF THE EXTENSIVE AND HIGHLY PREJUDICIAL
PRE-TRIAL MEDIA COVERAGE OF THIS CASE, AND IN
LIGHT OF THE FACT THAT A SUBSTANTIAL NUMBER OF
JURORS ACKNOWLEDGED HAVING BEEN EXPOSED TO THE
PUBLICITY, THE TRIAL COURT'S REFUSAL TO PERMIT
COUNSEL TO QUESTION PROSPECTIVE JURORS INDIVI-
DUALLY AND OUTSIDE OF ONE ANOTHER'S PRESENCE, IN
ORDER TO DETERMINE WHAT IN PARTICULAR EACH JUROR
HAD HEARD OR READ ABOUT THE CASE, DEPRIVED PETI-
TIONER OF HIS RIGHT, SECURED BY THE SIXTH AND
FOURTEENTH AMENDMENTS, TO BE TRIED BY A FAIR AND
IMPARTIAL JURY.
=a?
TABLE OF CONTENTS
QUESTION PRESENTED
TABLE OF CONTENTS
TABLE OF CITATIONS
CITATION TO OPINION BELOW
JURISDICTION
CONSTITUTIONAL AND STATUTORY PROV ISIONS INVOLVED
STATEMENT OF THE CASE
HOW THE FEDERAL QUESTION WAS RAISED AND DECIDED BELOW
REASONS FOR GRANTING WRIT
ESTION PROSENTED
IN LIGHT OF THE EXTENSIVE AND HIGHLY PREJUDICIAL
PRE-TRIAL MEDIA COVERAGE OF THIS CASE, AND IN
LIGHT OF THE FACT THAT A SUBSTANTIAL NUMBER OF
JURORS ACKNOWLEDGED HAVING BEEN EXPOSED TO THE
PUBLICITY, THE TRIAL COURT'S REFUSAL TO PERMIT
COUNSEL TO QUESTION PROSPECTIVE JURORS INDIVI-
DUALLY AND OUTSIDE OF ONE ANOTHER'S PRESENCE, IN
ORDER TO DETERMINE WHAT IN PARTICULAR EACH JUROR
HAD HEARD OR READ ABOUT THE CASE, DEPRIVED PETI-
TIONER OF HIS RIGHT, SECURED BY THE SIXTH AND
FOURTEENTH AMENDMENTS, TO BE TRIED BY A FAIR AND
IMPARTIAL JURY.
CONCLUSION
CERTIFICATE OF SERVICE
iii
|
21
22
TABLE TA
CASES
DAVIS V. State, 461 So.2d 67 (Fla. 1984)
.
Gannett’ Co. V., DePasquale, 443 U.S. 368 378, 99 S.Ct. 2898,
61, h.Bd.2d 608 (1979)
%
Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 6 L.Ed.2d
751 (1961)
Nebraska Press Association v. Stuart, 427 U.S. 539, 602,
96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)(Brennan, J.
concurring)
Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16
L.Ed.2d 600 (1966)
Sineer v. State, 109 So.2d 7, 24 (Fla. 1959
State v. Goodson, 412 So.2d 1077 (La. 1982)
State v. Stiltner, 491 P.2d 1043 (Wash. 1971)
United States v. Blanton, 719 F.2d 815 (6th Cir. 1984)
United States v. Chagra, 699 F.2d 241 (Sth Cir. 1982)
United States v. Davis, 583 F.2d 190 (Sth Cir. 1978)
United States v. Gerald, 624 F.2d 1291 (5th Cir. 1980)
United States v. Hawkins, 658 F.2d 279 (Sth Cir. 1981)
United States v. Ledee, 549 F.,2d 990 (Sth Cir. 1977)
United States v. Nell, 526 F.2d 1223 (Sth Cir. 1976)
United States v. Rucker, 557 F.2d 1046 (4th Cir. 1977)
- iii -
17,18,
20,21
16,17
21
15,19
15,16,
18,20,2
15,19,2
15,16,
18-20
19
15,19
15,18,1
CITATION TO OPINION BELOW
The opinion of the Supreme Court of Florida is Davis v. State,
461 So.2a 67 (Fla. 1984), and is set forth in Appendix A. The motion
for rehearing and the denial thereof are set forth in Appendix
B and C.
JURISDICTION
Review is sought pursuant to 28 U.S.C. §1257(3). The judgment ,
below was entered on October 4, 1984, and petitioner's timely motion
for -rehearing was denied (in light of revised opinion) on January
17, 1985 [Appendix C].
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves a death sentence imposed pursuant to Section
921.141, Florida Statutes (1973), and involves the Sixth and Four-
teenth Amendments to the United States Constitution, and specific»lly
the affirmative constitutional obligation of the trial court to
minimize the effects of prejudicial pre-trial publicity. See e.g.
Gannett Co. v. DePasquale, 443 U.S. 368,378, 99 S.Ct. 2898, 61
L.Fu.24 608 (1979); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct.
1507, 16 L.Fa.2a 600 (1966); Nebraska Press Association v. Stuart,
427 U.S. 539, 602, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)(Brennan,
J., concurring).
STATEMENT OF THE CASE
Petitioner was charged by indictment returned May 27, 1982,
with three counts of first-degree murder, in the deaths of Nancy
Weiler and her daughters Kristina and Katherine Weiler. The murders,
and petitioner's arrest, had been the subject of extensive publicity
in the Jacksonville and Duval County media, much of it highly inflam-
matory and prejudicial in nature. [The disclosures of inadmissible
information and the emotional reportage and commentary which impacted
upon petitioner's ability to secure a fair and impartial jury is
discussed at pages 4-12, infra). On June 9, 1982, petitioner (then
represented by the Public Defender's Office) filed a motion for
individual and sequestered voir dire, asking that the trial court
allow counsel to question prospective jurors individually and outside
of one another's hearing, in order to ascertain their knowledge
of the case based on pre-trial publicity and to discern their atti-
tudes toward canital punishment [Appendix D]. The motion stated
“a
inter alia, the following grounds:
A. In order to obtain a fair and impartial jury, it
is absolutely essential to inquire of each prospective
juror about his knowledge of the offense, the parties,
and the witnesses. It is necessary to inquire what
the venireman's knowledge is and to ask questions
to determine how that knowledge will affect his deli-
berations.
1. By explaining what he has heard about the charges
or what he knows about parties or witnesses, a venire-
man may very likely impart his knowledge to the other
prosective jurors unless there is individual, seques-
tered voir dire. Such knowledge, which is often based
on opinion, rumors, hearsay, media coverage, and other
sources of inadmissible evidence, can taint the entire
venire that is exposed to it and serve to deny the
Defendant a fair trial by an impartial jury (citations
omitted).
2. Whenever there is believed to be a significant
possibility that individual talesman will be ineligible
to serve because of exposure to potentially prejudicial
material, the examination of each juror with respect
to his exposure shall take place outside the presence
of other chosen and prospective jurors. Standard No.
3.4, American Bar Association, Standards Relating
to Fair Trial and Free Press; (citation omitted).
On August 1l, 1982, the defense filed a motion for chance of
venue {Appendix E]. The trial court, over defense objection, deferred
ruling on the motion until an attempt had been made to select a
jury in Duval County. The Public Defender's Office was subsequently
allowed to withdraw from representation of petitioner on the basis
of conflict of interest. Attorney Frank Tassone was appointed to
represent petitioner. On January 7, 1983, Mr. Tassone filed a Notice
of Adoption of Previously Filed Motions, in which he adopted, inter
alia, the motions for change of venue and for individual and seques-
tered voir dire which had previously been filed on petitioner's
behalf.
The case proceeded to trial on January 31 - February 4, 1983.
Immediately prior to jury selection, defense counsel called the
trial court's attention to the pending motion for individualvand
sequestered voir dire, which the trial court thereupon denied.
At the conclusion of the trial, the jury returned verdicts fing-
ing petitioner guilty as charged of three counts of first degree’
murder. The penalty phase of the trial was conducted on February
9, 1983. The jury recommended imposition of the death penalty as
to all three counts. In accordance with the jury's recommendation,
—— 2
the trial court, on March 2, 1983, imposed three sentences of death
upon petitioner. The convictions and death sentences were affirmed
by the Florida Supreme Court on October 4, 1984, and petitioner's
motion for rehearing was denied (in light of revised opinion) on
January 17, 1985.
HOW THE FEDERAL QUESTION WAS RAISED AND DECIDED BELOW
In his brief on direct appeal, petitioner raised five issues;
three of these related directly to the prejudicial pre-trial publi-
city. Petitioner contended that his right to a fair and impartial
jury, secured by the Sixth and Fourteenth Amendments, was abridged
(1) by the denial of his motion for change of venue [see Appendix
F 22-42; G 1-5], (2) by the denial of his motion for individual
and sequestered voir dire [see Appendix F 43-50, 38-42; G 6-8],
and (3) by the denial of his challenge for cause to a prospective
juror who acknowledged that she had already more or less made up
her mind about the case from the news media accounts [see Appendix
F 50-57; G 9-12]. The Florida Supreme Court rejected each of peti-
tioner's contentions on the merits. Davis v. State, 461 So.?d 67,
69-70 (Fla. 1984)[The nature and content of the publicity was neither
set forth nor discussed in the opinion]. In this petition for cer-
tiorari, after consideration of the criteria governing review on
certiorari set forth in Supreme Court Rule 17.1(b), petitioner
(through undersigned counsel) has decided to address only the issue
regarding individual and sequestered voir dire."
’ In an excess of caution (made necessary by the State of Florida's
demonstrated propensity for interposing frivolous "procedural de-
fault" objections in order to frustrate federal habeas corpus
review), petitioner wishes to make it absolutely clear that he is
not waiving his remaining constitutional claims, nor should his
decision to focus this petition for certiorari on the one issue
be construed as an implicit denigration of the other claims. The
decision to emphasize a single issue in this case was necessitated
by Supreme Court Rule 21.4 (maximum page limitation of 30); while
the selection of the individual and sequestered voir dire issue
as the one to emphasize was based on Rule 17.1(b).
REASONS FOR NG WRIT
QUESTION PRESENTED
IN LIGHT OF THE EXTENSIVE AND HIGHLY PREJUDICIAL
PRE-TRIAL MEDIA COVERAGE OF THIS CASE, AND IN
LIGHT OF THE FACT THAT A SUBSTANTIAL NUMBER OF
JURORS ACKNOWLEDGED HAVING BEEN EXPOSED TO THE
PUBLICITY, THE TRIAL COURT'S REFUSAL TO PERMIT
COUNSEL TO QUESTION PROSPECTIVE JURORS INDIVI-
DUALLY AND OUTSIDE OF ONE ANOTHER'S PRESENCE, IN
ORDER TO DETERMINE WHAT IN PARTICULAR EACH JUROR
HAD HEARD OR READ ABOUT THE CASE, DEPRIVED PETI-
TIONER OF HIS RIGHT, SECURED BY THE SIXTH AND
FOURTEENTH AMENDMENTS, TO BE TRIED BY A FAIR AND
IMPARTIAL JURY.
THE NATURE OF THE PRE-TRIAL PUBLICITY
Petitioner was placed under arrest for the Weiler
murders
in the early morning of May 13, 1982. The probable cause statement
in the arrest report includes the following remarks:
Allen Lee Davis admitts (sic) being at the victims
home at approx. time of their death, @ P.M. ll
May
1982.’ Allen Lee Davis failed a polyoraph examination
conducted by the Jax. Sheriff's Office.
Petitioner's motion for change of venue contained, inter
alia, allegations that “[(the) State, through its agent,
ville Sheriff's Office, improperly released to the news
the Jackson-
media,
which was disseminated in the Duval County area, that Allen Lee
Davis was arrested after he faileda polygraph examination", and
also improperly disclosed petitioner's inculpatory statements
placing himself at the scene of the murders, improperly
petitioner's prior criminal record and the fact that he
felony parole at the time of his arrest, and improperly
in eaten statements of incriminating evidence which the
investigation had uncovered. [See Appendix E]. Appended
disclosed
was on
released
police
to the
motion was an affidavit of Assistant Public Defender Anthony
Zebouni, stating that he personally observed Sheriff's Office en-
ployees tendering copies of the arrest report, which contained
references to petitioner's having failed a polygraph and to his
statements placing him in the Weiler home, to television and radio
nersonnel at petitioner's bond hearing. Also included were affida-
vits of fifteen Duval County attorneys, who stated their opinions
tnat petitioner could not obtain a fair and impartial jury in the
county as a result of extensive newspaper publicity and
T.V. and
radio coverage of the case, and specifically the exposure of members
of the commur.ty t- the inadmissible evidence of petitioner's having
failed a polygraph examination, and his prior record of violent
crime, and to the dissemination of statements concerning peti-
tioner's presence at the crime scene at the time of the offense.
At the hearing on the motion for change of venue, the defense
introduced an audit report showing the daily circulation of the
Jacksonville newspapers. These figures were: Times-Union-115,666;
Journal-43,600; Saturday-132,279; Sunday-146,423. The Jacksonville
Journal of May 13, 1982, contained an article headlined “Suspect
charged in triple murder", which included-a photograph of police
and funeral home employees removing the bodies of Mrs. Weiler and
her daughters from their home. The article stated, inter alia:
Police said records indicate Davis, a shipyard
welder, was arrested in 1965 at Bangor, Maine, for
assault and in 1966 in Baltimore, Ma., for involun-
tary manslaughter with a vehicle.
Duval County Circuit Court records show he was sen-
tenced to a total of 15 years here in 1973 after
being convicted of two robberies and an attemSted
robbery. It could not be determined today if Davis
served any time in prison on those convictions.
The suspect agreed to take a lie detector test and
failed it, officers said. They declined to reveal
the test questions.
Homicide Detective Charles Kesinger said Davis told
him he had seen Mrs. Weiler early Tuesday evening,
the time members of the Duval County Medical Exami-
ner's Office believe the killings occurred.
The Journal of May 13, 1982, also contained an article head-
lined “Explaining girl's slaying a tough job for teacher." The
article dealt with the trauma faced by Kristy Weiler's fifth grade
teacher, in breaking the news of Kristy's murder to her classmates.
It read, in part:
Kristina, who was called "Kristy", was a bouncy,
“cheerleader type" who enjoyed doing handicrafts
with her mother, Ms. Robichaud said. She had been
selected by her classmates as the March “Supercitizen",
said school Principal Marilyn Duncan.
Yesterday would have been Kristy's 10th birthday.
She had planned a birthday party at her home after
school, and her class was taking a field trip to
the zoo.
“They were having a disco party for her birthday.
The invitations were so cute, she wrote them herself
and said, ‘Be sure to wear your disco clothes,’ Fddie
(a classmate) was so upset because he forgot his danc-
ing shoes," Ms. Robichaud said.
-
» & % ‘
“we did not tell that Kristy was the one that died,”
Mrs. Duncan said, adding that the children were told
the birthday party had been canceled because of a
death in the family “so these children wouldn't go
over and run right into the tragedy and all that
would be connected with it.”
Ms. Robichaud said Kristy's classmates did not seem
satisfied with the explanation.
“They wanted to know who had died and I said, ‘I
don't know.’ They wanted to know if the party would
be held.
“They said, “Why is your nose so red? Why have you
been crying? They know something is wrona, and I
hope the parents are understanding about it. I feel
sorry for those parents," Ms. Robichaud said.
But she knows she will have to do some explaining
to her class today.
"I'm going to be very honest with them. They're going
to be very scared, horribly scared. They're going
to want comforting and they're going to want to know
why it happened.
"I'm going to try to make it a normal day...with
a lot of silent meditation.” 4
The Times-Union of May 13, 1982, reported the reaction of Dr.
Nonafacio Floro, the assistant medical examiner:
When Floro left the house yesterday afternoon, he
wiped tears from his eyes and brushed aside reporters'
questions until he had made a preliminary examination.
He was visibly shaken.
"It was because there were kids involved and the way
_they were killed," Floro, himself the father of three «
children, a girl, 12, and two boys, 4 and 7, said
latér.
"You get emotional for anybody who had kids that died.
They're so innocent; they did not know what was going
on,” he said.
The Times-Union of May 14, 1982, contained an article headlined
“Welder held in slayings of mother, 2 daughters,” featuring a large
photograph of petitioner in handcuffs. The story begins, "A 37-year
old welder who was varoled from prison in 1979 or Petitioner is
described as a 6-foot 340-pound individual nicknamed “Tiny”. The
article continues: :
Circuit Court records showed that Davis pleaded guilty
in 1973 to armed robbery, attempted armed robbery
and carrying a concealed firearm, and that Circuit
Judge R. Hudson Oliff sentenced him to 15 years in
prison.
So
-
Davis was paroled Sept. 25, 1979, after servin st
of the six years at Doctors Inlet Road Prisog”4n Slay
County, said David Skipper, a spokesman f he state
Department of Corrections in Tallahassee.
He w@s paroled because he had a clean disciplinary
_xecord, good progress reports and showed a favorable
- prisor adjustment, Skipper said.
Court officialg said Davis also was convicted in 1966
in Baltimore of involuntary vehicular manslaughter
for which he was sentenced to three years.
And in 1961, Davis was convicted in Bangor, Maine,
of assauit end battery and was sentenced to six months
to three years.
Davis came under suspicion about eight hours after
the bodies were found at 1l a.m. Wednesday, police
said.
He was questioned hy homicide detectives Wednesday
night and voluntarily submitted to a lie-detector
test, said homicide Lt. Jim Suber. He was arrestcd
and booked about 2 a.m. yesterday.
Davis’ pickup truck, which was found near the Weilers'
house, was examined for physical evidence.
- “We got this thing under heavy investigation,” Suber
said yesterday. "We're trying right now to tie sone
loose ends. We haven't found the gun, and we can't
comment on the evidence we have."
On May 18, 1982, the Jacksonvjle Journal published an article
headlined “Alligator impedes probe." This article concerned police
efforts to recover the murder weapon, @ pistol. Divers were searching
several hodies of water, and there were apparently alligators in
the locations being searched. Homicide detectives said they didn't
know anything about alligators:
"I'm not verifying the information,” Lt. Jim Suber
said. “We're searching four’or five bodies of water.
This is just one more place."
Suber said any comments could hinder the investigation
and that if anything were printed, a guard would be
placed in the area being searched to prevent anyone
from tampering with evidence that might be found there.
“Whoever knows where that gun is, knows where the
water is” he said.
“You can never know for sure what people will do.”
Suber said his fears were not that another suspect
might be at large, but that relatives or friends of
Allen Lee Davis, the 37-year old shipyard welder
charged with the triple slayings could try to prevent
investigators from discovering evidence.
The defense called as a witness Steven Crosby, assistant news
’
director at WJXT Television, Channel 4, who presented “doves” (video
me iy
taped segments which appeared on the air)from newscasts concerning
the Weiler murders. One of these newscasts announced:
Thirty-seven-year-old Allen Lee Davis booked into
the Duval County Jail early this morning; he's charged
with triple murders of Nancy Weiler and her two child-
ren, ten-year-olc Christina and five-year-old Kathy.
Early in the investigation, attention focused on this
man, Allen Lee Davis, the son of the Weiler's next-door
neighbor. After questioning Davis, police found sub-
stantial evidence in both the suspect's truck and,
upon investigation of the house, linking him to the
crime.
He was in the presence of the yictims at the time
of their death and he admits to this and he has also
failed the polygraph test.
According to the police, Davis agreed to be interviewed
at the Jacksonville Sheriff's Office. This is not
his first brush with the law. Police say he was out
on parole and has a lengthy criminal record. He is
scheduled to be arraigned later this morning.
Jeff Silverstein, Channel 4, Eyewitness news.
Other channel 4 broadcasts carried the following information
and commentary:
The neighborhood in this community is a very close-nit
group. The only word is horrible. That is the only
word. Things like this don't happen in a nice neighbor-
hood and this is a nice neighborhood and they were
nice people.
Twelve-year-old blank blank was invited to the birthday
party planned for Cristina. She would have been ten
years old. I got of of the bus and I didn't want to
believe it at first. It's kind of senseless but I
found out it was a crime.
The crime was called untimely. He is the son of the
of the Weilers' next-door neighbor. Police say they
found cord similar to that used to bind the wrists
™of the Weiler child in the Chevrolet pickup. They
say his handgun is missing and has not yet been found.
Davis today has been charged with murder at 3:99 o clock
this morning, after he flunked a lie detector test.
Davis had already been convicted of assault and disor-
ly conduct. He was out on parole for armed robbery.
low shipyard workers and friends give a completely
different picture of Davis. They say he is a good
natured man who loves children, a good co-worker.
They say they can't believe he is a man who could
be guilty of committing three murders.
1/Q
O10
—in
Bill Palmer worked with Davis two years says he's
okay, he loved to sit down and talk about huntinc,
fishing and back in Maine, that's where he's fron.
I can't believe that this happend. I can't believe
it's true. I am sick about this whole thing. Since
leaving the North Florida Shipyard in the fall, friends
say Davis worked inother shipyards. They say he was
laid off a few weeks ago. Davis shared his Arlington
apartment with Mary Collins. It's unbelievable. 1
can't believe it. I really can't. Especially when
it comes to children, I can't believe |he would do
something like that. I really don't ieve he did
it. a
John Weiler is staying with friends after flying back
from Pittsburgh yesterday. He said he is trying to
make funeral arrangements for his family so brutally
taken away from him.
Wynn Farley, Channel 4 Eyewitness News.
There might have been some doubt in people's minds,
there was no doubt in our mind now that we have the
right suspect. Lt. Suber would not comment on the
circumstarces but here's what we know of evidence
from the individuals close to the investigation: During
several hours of questioning in the interrogation
room, the police said Davis told them he was in the
Weiler home the night of the murders but also said
he had a lapse of memory. The detective that made
up the arrest report wrote Allen Davis stated he could
not remember everything that happend while he was
at the victims’ home.
The Duval County Medical Examiner put the time of
death somewhere between 7:30 and 9:00 o'clock. John
Weiler told police he talked with his wife on the
phone at a quarter of 7:00 while she was preparing
dinner.
A neighbor said she called the Weiler home at 8:15
and there was no answer. Davis, himself, told the
police he was in the house around 8:00 o'cock. Police
first questioned Davis as a possible suspect witness
when his father, the Weiler's next-door neighbor,
reported his gun missing.
The police believ~ the gun to be the same kind that
the suspect used. They think it was a .357 caliber
revolver like this one as fragments of the wood from
the murder weapon were found by the victims which
were pistol whipped.
Sources close tothe investigation say the pistol
was a Black Hawk .357 Magnum. The insignia was all
that was found at the scene that would make it the
same type gun Davis’ father reported missing. The
whereabouts of the actual murder weapon remains a
mystery.
Among evidence taken from the truck was nylon cord
believed to be identical to one of the cords used
to tie up one of the children. Detectives secured
the scene at the time and Davis’ apartment, looking
for physical evidence. Their findings were brought
here to the Jacksonville Crime Lab where they will
look for fibers, hair an@é do ballistic tests.
I_ think we have a very significant se against him
at this int and I ho to have evén a better case
at trial time based on physical evidence-and witnesses.
Davis’ attorney said he will ask the Court to move
the case out of Jacksonvile. We predict it will be
a very sensitive case.
Denny Silverstein, Channel 4 Eyewitness news.
The video tape next depicted petitioner, handcuffed, wearing
«@-«
a baseball cap, and flanked by two officers, apparently being trans-
ported to the Duval County Jail during the night time.
The Channel 4 stories concerning the Weiler murders were aired
at noon, 6:00 p.m., and 11:00 p.m., and some may have appeared on
more than one newscast. According to an Arbitron survey covering
the period from April 28 - May 25, 1982, Channel 4 News had a poten-
tial weekday viewing audience” of 55,000 households or 72,000 persons
for the noon broadcast, 109,000 households or 174,000 persons for
the 6:00 p.m. broadcast, and 56,000 households or 92,000 persons
for the 11:00 p.m. broadcast. Crosby indicated that this survey
would include Duval County, and the surrounding counties of Baker,
Bradford, Clay, Columbia, Nassau, and Putnam. >
Gerry Howard, news director of WJKS-TV, Channel 17, presented
four taped news broadcasts concerning the Weiler murders. He esti-
mated that, altogether, these stories would have been aired a dozen
or more times. The third newscast, which was aired on May 13, 1982,
at 6:00 p.m., again at 11:09 p.m., and on Newswatch 17 update the
following morning, related the following information:
Davis was charged with the murders early this morning
after four hours of interrogation. Police said he
voluntarily submitted to a lie detector test and
failed. Other evidence includes rope found in the
back of pickup which may have been used to tie the
hands of Kathy Weiler who was found shdt to death.
Police say Davis who was denied bond admitted being
in the house around 8:00 p.m. Wednesday night.
Davis had been cgnvicted twice and released from
Raiford in 1969.
(T 162).
2 Crosby defined his "potential viewing audience" as the number of
households which, there would be good reason to believe, would have
television sets tuned to Channel 4 WJXT at a particular time.
3 The population of Duval County, according to the 1980 census, was |
570,981. The combined population of the six other counties was 221,206. |
According to voter registration statistics submitted by the defense,
there were 251,304 registered voters (and therefore 251,304 potential
jurors) in Duval County as of August 4, 1982.
‘ This date is incorrect. Davis was paroled from the Florida prison
system in 1979. The child whose hands were bound was Kristy Weiler.
- 10 -
Richard Padden” said he had spoken to Davis around
6:00 p.m. Tuesday night just about two hours before
the murders were committed. He shook my hand and told
me any time I needed anything, give him a holler.
Did he indicate to you why he was in such a good mood?
No. Looked like to me he had been out working. Police
are searching the waters in back of the Weiler home
in hopes of finding the murder weapon.
Howard indicated that approximately 20,000 people see the
6:00 p.m. newscast on Channel 17, and approximately 19,000 people
see the 11:00 p.m. newscast, Channel 17's signal encompasses a five-
al”
county area, including Duval, Clay, St. John's, Baker, afid Flagler. °®
Irene Shubert, administrative assistant to the news desk at
WTLV-TV Channel 12, presented several video taped news seaments
on the Weiler murders. The first story was aired at noon on May
12, 1982, and included the following comment (which was repeated
during the 6:00 p.m. broadcast):
The neighbors were in total shock, completely wiped
out. We never had anything happen before like this.
I have been in the Military but not next door -- the
murders came on the morning eve of the celebration
that was the birthday of nine-year-old Christy Weiler.
Another Channel 12 newscast, apparently aired on June 9, 1982,
(see T-173) conveyed the following information to viewers:
++. there were not just three deaths on May 11. Mrs.
Weiler was pregant at the time. The pregnancy is early
and 1 is unlikely another murder charge will result.
The police now have three witnesses that can pin down
Davis' whereabouts on the day of the murders. One
neighbor apparently spotted Davis near where the mur-
ders occurred with a gun in his hand. Neither the
police nor the Public Defender or prosecutor would
have any comment or action.
Assistant State Attorney Ralph Greene would not comment
on Davis’ case but he would talk about the use of
hypnosis testimony in court. We're not talking about
hocus pocus, you know, of a carnival show; it's well
recognized, well *hought of technique to help a person
remember. .
But the case against the unemployed shipyard worker
is growing more complicated, one that the defense
feels would have to be decided outside of Duval County.
~ Richard Padon testified at trial that he drove Davis to Davis’
father's house to commit a burglary in the neighborhood; that he
later picked Davis up; and that Davis had three brown paper bags,
one of which contained a Nikon camera. Padon did not mention any
of this to police until September, because he did not want to get
involved,
The combined 1980 population of the four surrounding counties
is 144,557, compared to Duval's 570,981.
To
In July, 1982, Channel 12 broadcast an editorial piece by
Allen Rothstein:
The murder occurred whil v was out on parole.
Allen Lee Pans i ccus L ng a Jacksonville
mother an er t c dren whil t on ole for
armed rebhery this year. I think that he needed to
serve a little more time th three ars. I mean
ild that he first killed. He was in court
that was a chi
today trying to stop the prosecution from using an
alleged conviction but he has not yet been tried for
the second trial -- (inaudible) parole and probation
people are letting people out on the streets too early,
that he's got a criminal out there.on the street.
Mistakes are made but -- we cannot predict what a
person will or will not do. We try to make the best
judgment we can based on the information that we have
(inaudible). Why should I agonize over a sentence
if they're going to take them over there in due time
and re-sentence them, why don't we try them and say
you all do what you want to with them?
Channel 12, Allen Rothstein.
According to an Arbitron survey, there are 169,000 households
in the WTLV viewing area. The estimated viewing audiences for the
news broadcasts are: Good Mezsning, Jacksonville - 10,000 households;
noon - 15,000; 6:00 p.m. - 40,000; and 11:00 p.m. - 33,000. Stories
are sometimes broadcast on more than one news program. The station's
major market is Puvel County; its signal reaches into south Georgia
and Clay, Nassau, and Baker Counties. ’
Summarizing the evidence in support of his motion for change
of venue, defense counsel asserted that the pre-trial media coverace
of this case was irreparably prejudicial in that it exposed the
Duval County community to 1) inadmissible evidence of petitioner's
prior criminal record including convictions of manslaughter, two
armed robberies, and attempted robbery; 2) inadmissible evidence
that petitioner was on parole at the time of the murders; 3) inadmis-
sible evidence that petitioner took a polygraph and failed it; 4)
petitioner's statements (the admissibility of which had yet to be
determined) to police, placing him in the Weiler home at the time
the medical examiner believed the murders ecourred, and claiming
that he had a lapse of memory while in the house; 5) ex parte state-
ments of evidence indicative of guilt which the police had assembled,
including the facts that a handgun belonging to petitioner's father
was missing, that a cord found in petitioner's truck matched the
cord which bound Kristy Weiler's wrists (T 186, 187), and that police
The combined 1 ~opulation of the latter three counties is 115,235.
- 12 «
had found three eyewitnesses who could pin down petitioner's where-
abouts, one of whom saw him in the neighborhood iain ss gun in his
hand; 6) statements by state officials expressing their certainty
of petitioner's guilt; that they had the right suspect, and that
they had a “very significant case" aainst him; 7) statements by
police to the effect that petitioner's friends or relatives might
interfere with their efforts to find evidence; specifically the
missing handgun; 8) inflammatory commentary strongly tending to
evoke community sympathy for, and identification with, the victims
(and, concomitantly, prejudice against the named suspect, Davis),
including an article about Kristy's schoolteacher having to break
the news of her death to her classmates, newscasts emphasizing the
reaction of the Weilers' close-knit, uppermiddle class, family--
oriented neighborhood to the horror and senselessness of the crim;
references to Mrs. Weiler's being pregnant at the time of her death;
references to Kristy's tenth birthday party which was to have been
held the next day, and the medical examiner's emotional reaction
as he left the house ; and 9) a telecast denouncing parole authorities
for releasing prisoners back onto the streets to commit crimes,
and referring specifically to petitioner as one who “needed to serve
a little more time" and who subsequently murdered a child.
Jury selection commenced on January 31, 1983. Defense counsel
called the trial court's attention to the pending motion for indivi-
dual and sequestered voir dire, which the court then denied. During
° acknowledged that they
voir dire, at least ten prospective jurors
had some prior knowledge of the case, from television, radio, news-
papers, or word of mouth. As a result of the group voir dire, however,
it was not possible to ascertain specifically what each of these
jurors had heard or read about the case without contaminating the
remainder of the venire. Early in the voir dire, a prospective juror
(unidentified in the record) said, "I must honestly say I read the
paper rather thoroughly..." and indicated that he was not sure at
that voint if he
These prospective jurors included Richardson, Lane, Stanley Johnson,
Jackson, Cassidy, Griswold, James Johnson, Robb, Price and Arceneaux.
« 83.«
em
could be open-minded or not. A second unidentified prospective juror
said the same applied to her. Prospective juror Lane said she knew
about the case from watching television, knew in her heart how she
felt about it, and had already more or less made up her mind [see
Appendix F 50-57, G 4-12]. Prospective juror Richardson (who served
on the jury) stated that she knew something about the case from
the newspaper and TV.Prospective juror Price, who had heard something
about the case, when asked by the prosecutor whether she could vote
for the death penalty, stated:
Well, the way it was expressed to me, sir, these people
get out on probation and they done these horrible
things, that's the only question that I would say
about capital punishment.
Four of the ten prospective jurors who acknowledged having
been exposed to the media coverage - Richardson, Jackson, Griswold,
and Arceneaux - ultimately served on the jury which convicted peti-
tioner and recommended imposition of the death penalty.
The Trial Court's Refusal to Permit Counsel to Question
Prospective Jurors Individually and Outside of One
Another s Presence, in Order to Determine What in
Particular Each Juror had Heard or Read About the
Case, Deprived Petitioner of his Right to be Tried
by a Fair and Impartial Jury.
In his concurring opinion (joined by Justices Stewart and
Marshall) in Nebraska Press Association v. Stuart, 427 U.S. 539,
602, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), Justice Brennan observed
that, in order to protect the Sixth and Fourteenth Amendment richts
of the accused in a case where thie has been incriminating publi-
city:
-+-.-the trial judge should employ the voir diré ‘to
probe fully into the effect of publicity. The judge
should broadly explore such matters as the extent
to which prospective jurors had read particular news
accounts or whether they had heard about incriminating
data such as an alleged confession or statements by
purportedly reliable sources concerning the defendant's
guilt. Sec, e.g., Hamm v. South Carolina, 409 U.S.
524, 531-534 (1973) (opinion of Marshall, J.); Swain
v. Alabama,, 380 U.S. 202, 209-222 (1965). Particularly
in cases of extensive publicity, defense counsel should
be accorded more latitude in personally asking or
tendering searching questions that might root out
indications of bias, both to facilitate intelligent
exercise of peremptory challenges and to help uncover
facts that would dictate disqualification for cause.
Indeed some be necessar) 9 guestic
on vo : prospect ive ro ndividually c n
ll groups both to maximize the like! ihooc
bers of the n will respond honest: > gues-
tions concerning bias, and to avoid contaminati
unbiased members of the venire when other members
disclose prior know edge of prejudicial information.
Although a trial court has broad discretion in its conduct
of voir dire, this discretion is limited by the requirements of due
process. United States v. Hawkins, 658 F.2d 279, 283 (5th Cir. 1981);
United States v. Gerald, 624 F.2d 1291, 1296 (Sth Cir. 1980). See
also United States v. Rucker, 557 F.2d 1046, 1049 (4th Cir. 1977);
United States v. Nell, 526 F.2d 1223, 1229 (Sth Cir. 1976) (exercise
of trial court's discretion in conduct of voir dire is limited by
“essential demands of fairness"). In order to satisfy the require-
ments of due process, the method of voir dire adopted by the trial
court must be capable of giving reasonable assurance that prejudice
would be discovered if present. United States v. Hawkins, supra,
at 283, 285; United States v. Gerald, supra, at 1296; United States
v. Nell, supra at 1229; United States v. Chagra, 669 F.2d 241, 253
(Sth Cir. 1982). In view of the volume of prejudicial publicity
and pre-trial disclosure of inadmissible evidence in the present
case, the trial court’s ruling, and the consequent examination of
the prospective jurors in each other's presence, virtually quaranteed
that any prejudice created by the publicity would not be discovered.
The Fifth Circuit Court of Appeals has recognized that where
the nature of the pre-trial publicity as a whole raises a significant
possibility of prejudice, and where one or more jurors acknowledge
some exposure to that publicity, the trial court must determine,
at minimum, what in particular each juror had heard or read and
how it affected his attitude toward the trial. Uniced States v.
Hawkins, 658 F.2d 279, 282-85 (Sth Cir. 1981); United States v.
Davis, 583 F.2d 190, 196-98 (5th Cir. 1978). Hawkins and Davis stop
short of requiring individual or small group voir dire in every
case in which there has been publicity. The Hawkins opinion distin-
guishes a prior decision as follows:
In United States v. Gerald, 624 F.2d 1291, 1297 (5th
Cir. 1980), fifteen of twenty-eight prospective jurors
were exposed to pretrial publicity. Although this
Court reaffirmed the principle stated in Davis that
cursory questioning of the jury is not enough when
the nature of the publicity as a whole, together with
the surrounding circumstances, raises a significant
possibility of prejudice, we noted that, unlike Davis,
the record in Gerald was “completely devoid of any
indicators of the nature and extent of pretrial publi-
- 15 -
city ...." 624 F.2d at 1297. Consequently, this Court
held that defendant's failure in Gerald to “direct
the trial court's attention to specific news items
so the trial court [could] make an initial determina-
tion of whether the information is prejudicial," 624
F.2d at 1298, defeated his claim that the district
court erred in failing to adhere to the strict require-
ments of Davis:
The time consuming, probing, preferably indivi-
dual voir dire described in Davis generally is
no* required in cases involving unsupported
general allegations of prejudicial pretrial
publicity or in cases where the publicity does
not ‘create a significant potential of prejudice.
United States v. Hawkins, supra, at 284.
To safeguard the due process rights of the accused, a trial
judge has an affirmative constitutional duty to minimize the effects
of prejudicial pre-trial publicity. Gannett Co. v. DePasquale, 443
U.S. 368, 378, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).°It is well
recognized that where a juror has been exposed to prejudicial publi-
city, his assurances that he can nevertheless be impartial and give
the defendant a fair trial are not necessarily dispositive. Sheppard
v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 16 L.Ed. 600 (1966).
It is the responsibility of the trial court, not the juror himself,
to make the ultimate determination of whether his imoartiality has
been impaired. United States v. Hawkins, supra; United States v.
Davis, supra. Because the attorneys and the court in the present
case were unable to determine what each juror had heard or read,
the trial court was unable to fulfill this constitutional responsibi-
lity. See United States v. Hawkins, supra; United States v. Davis,
supra.
In State v. Stiltner, 491 P.2d 1043 (Wash. 1971) (in which
the media had revealed that the defendant, alone among the five
suspects, had not taken and passed a polygrah), the Supreme Court
of Washington recognized the "Catch-22" faced by defense counsel
in trying the ferret out the prejudice created by pre-trial disclo-
sure of inadmissible material. The trial judge in Stiltner had said:
Now this court recognizes the dilemma that Mr. Roy
{defense consel] is put in this matter and should
comment, it seems to me, at this point. He is ina
position where he must ask a juror whether or not
he remembers a certain thing that he doesn't want
him to remember and by doing so he may guicken or
refresh that memory as to a newspaper article that
may otherwise have been forgotten.
— oe
State v. Stiltner, supra, at 1048.
In the present case, counsel obviously could not ask a prospec-
tive juror if he had read or heard that petitioner failed a poly-
graph, or admitted being in the Weilers' home, or had served time
for several armed robberies, without conveying to the juror and the
rest of the venire the very information they hopefully did not know,
But if counsel had been permitted to examine the prospective jurors
outside one another's presence, then at least he could have asked
each juror what he knew about the case without running the risk
‘of the juror’s honest answer contaminating the entire venire. With
so much inadmissible evidence let loose in the community before
trial, and with at least ten prospective jurors admitting to some
exposure to the publicity, the chances of something like this occur-
ring were excellent. So neither the attorneys nor the court ever
determined the nature or extent of the extrajudicial knowledce which
these prospective jurors brought with them to court. Indeed, the
prosecutor on several occasions specifically cautioned jurors that
he did not want them to reveal the specifics of what they had read
or heard, but only whether they thought it would interfere with
their ability to be impartial.
In State v. Goodson, 412 So.2d 1077 (La. 1982), the Supreme
Court of Louisiana concluded that the defendant had failed to esta-
blish that the publicity in his case was of such a character as
to create a presumption of prejudice which would require a change
of venue without regard to voir dire. With respect to actual prejudice,
the court noted that, as there had not yet been a voir dire examina-
tion, it was impossible to determine whether it existed or not.
The court remanded the case to the trial court with instructions
to defer ruling*on a change of venue until completion of voir dire.
Because serious questions of potentially prejudicial publicity were
involved, the court further instructed the trial court that the
voir dire should be conducted according to the following auidelines,
based upon Section 8-3.5, American Bar Association Standards Relating
to Fair Trial and Free Press:
Since there is a significant possibility that indivi-
dual jurors will be ineligible to serve because of
exposure to potentially prejudicial material, the
> 68
examination of each juror with respect to exposure
shal] take place outside the presence of other chosen
and prospective jurors. An accurate record of this
examination shall be kept by court reporter or tape
recording whenever possible. The questioning shall
be conducted for the purpose of determining what the
prospective juror has read and heard about the case
and how any exposure has affected that person's atti-
tude toward the trial, not to convince the prospective
juror that an inability to cast aside any preconcep-
tions would be a dereliction of duty.
- Both the degree of exposure and the prospective
juror's testimony as to state of mind are rele-
vant to the determination of acceptability. A
prospective juror testifying to an inability to
overcome preconceptions shall be subject to chal-
lenge for cause no matter how slight the expo-
sure. If the prospective juror remembers informa-
tion that will be developed in the course of the
trial, or that may be inadmissible but does not
create a substantial risk of impairing judgment,
that person's acceptability shall turn on the
credibility of testimony as to impartiality. If
the formation of an opinion is admitted, the
prospective juror shall be subject to challenge
for cause unless the examination shows unequivo-
cally the capacity to be impartial. A_prospective
juror who has been exposed to and remembers
reports of highly significant information, such
as the existence or contents of a confession, o:
other incriminating matters that may be inadmis-
sible in evidence, or substantial amounts of
inflammatory material, shall be subject to chal-
lenge for cause without regard to the prospective
juror's testimony as to state of mind.
State v. Goodson, supra, at 1081.
Four of the people who served on appellant's jury acknowledged
having some extrajudicial knowledge about the case. Considering
the character of the pre-trial disclosures made by the police and
the media, there is a distinct possibility that some of this know-
ledge was inadmissible in addition to being highly prejudicial;
such knowledge on the part of a juror, if revealed on voir dire,
would have made him subject to a challenge for cause. Yet the method
of voir dire used in this case virtualiy ensured that such knowledge,
if it existed, would not be revealed. Consequently, the trial court's
denial of the defense's motion for individual and sequestered voir
dire not only deprived appellant of due process [United States v.
Hawkins, supra; United States v. Davis, supra], it also impaired,
indeed effectively destroyed, his ability to exercise his challenges
for cause and his peremptory challenges in a reasonably intelligent
manner. See United States v. Rucker, 557 F.2d 1046, 1048 (4th Cir.
1977), in which the appellate court observed that "a defendant is
- 18 -
entitled to have sufficient information brought out on voir dire
to enable him to exercise his challenges in a reasonably intelligent
manner", and further stated:
While the conduct of a voir dire examination is a
matter within the broad discretion of the trial judge,
Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017,
47 L.Ed.2d 258 (1976); Ham v. South Carolina, 409
U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973); Aldridge
v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed.
1054 (1931), the exercise of that discretion is limited
by "the essential demands of fairness." Aldridge,
supra, at 310, 51 S.Ct. 470. A voir dire that has
the effect of impairing the defendant's ability to
exercise intelligently hig challenges is ground for
reversal f prejudice. Swain v. Alabama,
supra, 380 U.S. at 2197 85 S.Ct. 824; United States
v. Lewin, 467 F.2d 32 (7th Cir. 1972).
United States yw Rucker, supra, at 1049.
See also United States v. Ledee, 549 F.2d 990, 993 (5th Cir.
1977) ("... the reak issue is whether the voir dire examination
uncovers possibie prejudice and bias of any juror so that a fair
and impartial jury may be impaneled. Peremptory challenges are worth-
less if trial counsel is not afforded an opportunity to gain the
necessary information upon which to base such strikes").
As previously discussed, in order to satisfy the requirements
of due process, the method of voir dire adopted by the trial court
must be capable of giving reasonable assurance that prejudice would
be discovered if present. United States v. Hawkins, supra, at 283,
285; United States v. Gerald, supra, at 1296; United States v. Nell,
*
Supra, at 1229; United States v. Chagra, 669 F.2d 241, 253 (5th
Cir. 1982). In view of the inflammatory nature of the publicity
in this case, and the extensive pre-trial disclosure of inadmissible
facts, the trial court's refusal to allow counsel to question pros-
pective jurors individually virtually guaranteed that any prejudice
created by the publicity would not be discovered, unless the juror
himself both recognized and admitted that ne eoulé not be impartial.
And, as both this Court and the Florida Supreme Court have recog-
nized, “it is difficult for any person to admit that he is incapable
of being able to judge fairly and impartially." Singer v. State,
109 So.2d 7, 24 (Fla. 1959); see Irvin v. Dowd, 366 U.S. 7:7, 728,
81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Since it is the court, and not
the individual juror, who must ultimately decide whether the juror's
‘- 19 -
impartiality has been impaired by his extrajudicial knowledge or
his exposure to inflammatory publicity, the group voir dire enpleyes
wy
in this case was constitutionally inadequate. United States v.
Hawkins, supra; United States v. Davis, supra.
Supreme Court Rule 17.1, which sets forth the considerations
governing review on certiorari, states, inter alia:
A review on writ of certiorari is not a matter of
right, but of judicial discretion, and will be granted
only when there are special and important reasons
therefor. The following, while neither controlling
nor fully measuring the Court's discretion, indicate
the character of reasons that will be considered.
(b) When a state court of last resort has decided
a federal question in a way in conflict with the
decision of another state court of last resort
or a federal court of appeals.
In the present case, the decision of the Florida Suprerie Court
is in clear (albeit silent) conflict with the decisions of the Fifth
Circuit Court of Appeals in United States v. hawkins, supra, and
United States v. Davis, supra, as well as the decision of the Supreme
Court of Louisiana in State v. Goodson, supra. In petitioner's brief
on appeal, he set forth in detail the inflammatory and prejudicial
nature of the pre-trial publicity [see Appendix F 5-21), all of ¢
which had been presented to the trial court at the time he denied
a change of venue and subsequently refused to allow individual voir
dire. See United States v. Hawkins, supra; United States v. Davis,
Supra; contrast United States v. Gerald, supra. Petitioner relied
heavily on the Hawkins and Davis decisions in his brief, and argued
that under the circumstances of this case (as in the cited cases)
the method of voir dire adopted by the trial court was incapable
of giving reasonable assurance that prejudice would be discovered
if present, and therefore deprived petitioner of his Sixth Amendment
right to a fair and impartial jury. [See Appendix F 43-50, 3€-42,
G 6-8).
The Florida Supreme Court, without any reference to the nature
or content of the pre-trial media coverage in this case,rejected
petitioner's arguments without mentioning either Hawkins or Davis
or the cosntitutional basis of the issue:
Davis also claims that thé trial court erred by failing
- 20 =
J
to conduct individual and sequestered voir dire of
the prospective jurors as requested by the defense.
The granting of individual and sequestered voir dire
is within the trial court's discretion. Stone v. State,
378 So.2d 765 (Fla. 1979), cert.denied, 49 U.S. 986,
101 S.Ct. 407, 66 L.Ed.2d 250 (1980); Jones v. State,
343 So.2d 921 (Fla. 3d DCA ), cet.denied, 352 So.2d
172 (Fla. 1977). The purpose of conducting voir dire
is to secure an impartial jury. Lewis v. State, 377
So.2d 640 (Fla. 1979). Davis had demonstrated neither
the partiality of his jury nor an abuse of discretion
by the trial court, and we find no merit to this claim.
Davis v. State, 461 So.2d 67, 69-70 (1984)
In so holding, the Florida Supreme Court has misconstrued
or ignored the entire premise of petitioner's argument, and that
of the Hawkins, Davis, and Goodson decisions, which is that the
accused is unfairly deprived of an opportunity to "[demonstrate)]
... the partiality of his jury” where prospective and sitting jurors
have been exposed to inflammatory articles, editorials, and broac-
casts containing inadmissible and highly prejudicia’ information,
but where the method of voir dire adopted by the trial court pre-.
eeeiue both counsel and the court itself from ascertaining what
in particular each juror has heard or read.”
CONCLUSION
WHEREFORE, petitioner respectfully requests that this Court
grant his petition for writ of certiorari.
4
Respectfully submitted,
MICHAEL E. ALLEN
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
—- ;
Sa! ee ee
. STEVEN L. BOLOTIN
Assistant Public Defender
Post Office Box 671
: Tallahassee, Florida 32302
(904) 488-2458
-/
Attorney for Petitioner
,
’ A final reason why certiorari review in the instant case is appro-
priate is that the decisions of the Fifth Circuit Court of Appeals
in Hawkins and Davis are themselves arguably in conflict with the
decision of the Sixth Circuit Court of Appeals.in United States
v. Blanton, 719 F.2d 815 (Sth Cir. 1984) (See Supreme Court Rule
17.1(a)}. The original panel in Blanton had held (relying on Hawkins,
Davis, and other decisions) that the group voir dire conducted by
the trial court was constitutionally inadequate in light of the
prejudicial publicity in the case, and had reversed for a new trial.
700 F.2d 298. The Sixth Circuit, considering the case en banc
rejected the panel decision by a 6-4 vote, and affirmed the convic-
taons without mention of Hawkins or Davis.
.
o Mm «
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
ALLEN LEE DAVIS,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
APPENDIX
MICHAEL E. ALLEN
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
STEVEN L. BOLOTIN
ASSISTANT PUBLIC DEFENDER
POST OFFICE BOx 671
TALLAHASSEE, FLORIDA 32302
(904) 488-2458
ATTORNEY FOR PETITIONER
(MEMBER OF THE BAR OF THIS COURT
APPENDIX
A
APPENDIX
TABLE OF CONTENTS
Davis v. State, 461 So.2d 67
4)
Motion for Rehearing
Order Denying Rehearing,
dated January 17, 1985
Motion for Individual and
fSequestered Voir Dire
Motion for Change of Venue
Initial Brief of Appellant
in The Supreme Court of
Florida
Reply Brief of Appellant
in The Supreme Court of
Florida
PAGE (S)
ance to the faculty
een the north side
Gon, so the way
normal care would
in cro: sing the ve
nity delibe rately de-
‘oO permanently re
us the day of the
sated was no great-
ywhere it is possi-
dblock. A govern-
‘y W warn pedestri-
‘er of crossing the
second certified
on the lack of a
rsection, which we
‘we
nether to install a
nm intersection is a
d with immunity,
with it the concom-
such time as the
absence of such
‘rap OY creates a
'y Spparent to per.
“rsection. For the
"er there was no
ier the factual cir-
The time delay
insta!! the traffic
‘allauion does not
uniy
at the plans envi
ld improve safety
“Y Can newther cre.
TM & patent dan
‘epene on the copns
bet abueme or non
Sop 3d 371. 27 I Dee
. the Plasntt’s chal
were forced to walk
valk ended abruptly
reyected the assertion
“ause wt had under
» sidewalk slung the
‘A passed an ord)
anfers to con*truct
MEN coge & mt
a
DAVIS v.
Cite as 461 S024 67 (Fla. 1984)
Accordingly, we approve the district
court decision.
It is so ordered
BOYD, CJ, and ADKINS, OVERTON,
ALDERMAN, MeDONALD and SHAW,
JJ., concur
Allen Lee DAVIS, Appellant,
v.
STATE of Florida, Appellee.
No. 63374.
Supreme Court of Florida
Oct. 4, 1984
Rehearing Denied Jan. 17, 1985
Defendant was convicted in the Circuit
Court, Duval County, Major B. Harding, J.,
of three counts of murder, and he appealed.
The Supreme Court he!d that. (1) trial
court did not err in failing to grant motion
for change of venue; (2) trial court did not
err by failing to conduct individual and
sequestered voir dire; and (3) evidence sup-
ported finding of five aggravating factors
Affirmed
Adkins, J. concurred in result, only
with the conviction and concurred with the
sentence ~
that even if the ordinance constituted a plan. the
plan had to be completed before habsliy at
tached
We find especially convincing the Resnik ra
a vat the duty to maintain arises because
* 06) ney depends on thes "hing a gesern
ent has undertaken to « Seplerne thes
to the Oper Ou Whom, aad
STATE Fla. 67
1. Criminal Law @ 115
Trial court may wait @& decide whether
to grant change of venue until after at
tempt to seat jury is made
2. Criminal Law 121, 1150
Application for change of venue is ad
dressed to court's sound discretion, and
trial court's ruling will not be reversed
absent palpable abuse of discretion
3. Criminal Law @426(2)
In prosecution for murder, trial court
did not abuse its discretion by failing to
grant defendant's motion for change of
venue based on pretrial publicity where all
who served on the jury indicated affirma-
tively that any prior knowledge could be
put aside, that they could serve with open
minds, and that they could reach a verdict
based on the law and evidence presented at
trial.
4. Jury 2913113)
Granting of individual and sequestered
voir dire of prospective jurors is within
trial court's discretion
5. Jury &131(1)
Purpose of conducting voir dire is to
secure impartial jury
6. Jury 131113)
In prosecution for murder, tria! court
did not err by failing to conduct individual
and sequestered voir dire of prospective
jurors where there was no demonstration
that jury seiectod was parti!
7. Jury x5
Competency of challenged juror is
mixed question of iaw and fact, determina-
tion of which is within trial court's discre-
tion.
mercial Curner Corp v. Indian River Counts
JP Svu.2d 1010 (fia 1979), coizens have a rea
sonable expectation thai those things provided
by ‘he government as a result of its planning
funwivon may be relied upon to continue to
— because of operational level mainte
na
Appendi ; a
mee
68 Fis
8. Criminal Law 11583)
Manifest error must be shown before
trial court's ruling on competency of jurors
will be disturbed on appeal
9. Jury 97/4)
In prosecution for murder, trial court
did not err by failing to excuse prospective
juror for cause where Juror indicated that
she could lay aside any bias or prejudice
and render verdict solely upon evidence
Presented and instructions given.
10. Criminal Law @10%6.10
Trial court is encouraged to state on
the record the reasons for ranting or not
granting challenge of juror fur cause.
Il. Criminal Law e388
Unless buth sides consent, results of
polygraph examinations are inadmissible in
adversarial proceedings
12. Criminal Law C92)
Mere mention of possibility of poly-
graph examination does not compel grant.
ing of new trial.
13. Criminal Law e867
In prosecution for murder, trial court
did not err in denying defendant's motions
for mistrial based on his father's testifying
that defendant went with police to take a
lie detector test where results of the test
were not admitted and where court directed
jury to disregard the reference
14. Criminal Law ©9699, 1154
Control of comments in closing argu-
ments is within trial court's discretion, and
court's ruling will not be overturned unless
clear abuse is shown
15. Criminal Law 103011)
In absence of fundamental error, fail-
ure to object precludes consideration of
points on appeal
16. Criminal Law 1037.11)
In prosecution for murder, any error in
Prosecutor's argument to the jury during
the penalty phase was not preserved for
review on appeal where defendant failed to
object.
* 461 SOUTHERN REPORTER. 24 SERIES
17. Homicide e354
Imposition of three Sentences of death
on defendant convicted of three counts of
murder was appropriate where. even
though evidence was insufficient w sup
port agyravating circumstance of avoiding
or preventing arrest, evidence Supported
agfravating §circumstanees of
atrocious, or cruel killings, premeditation,
Prior convictions, and attempted robbery
West's F.S.A. § 921.14]
_—_—_—_—
heinous.
Steven L. Bolutin, Asst Public Defender,
Tallahassee, for appellant
Jim Smith, Atty. Gen, and Andrew
Thomas, Asst Atty. Gen® Tallahassee. and
Kathryn L. Sands, Asst. Atty. Gen., Jack.
sunville, for appellee.
PER CURIAM.
Allen Davis appeals his convictions of
murder and sentences of death. We have
jurisdiction, article V, section XbM1), Flor
da Constitution, and affirm the eonvictions
and sentences
The state charged Davis with three
counts of first-deyree murder for the
shooting/beating deaths of a woman and
her five- and ten-year-old daughters in their
heme. The jury convicted him as charged
and recommended the death penalty for
each conviction. The trial court agreed
with the jury's recommendation and im
posed three death sentences.
On appeal Davis claims: (a) the trial
judge abused his discretion (1) by failing to
Grant 4 motion for change of venue, (2) by
denying a motion for indiv idual and seques.
tered voir dire, and (3) by denying a motion
for mistrial based on a witness’ testimony
on redirect examination; (b) the trial judye
erred in denying Davis’ challenge for cause
of one prospective juror; and (c) the prose
cutor's closing argument rendered the pen-
alty proceeding fundamentally unfair. Af
ter considering these points, we find that
no relief is warranted Morvover, our re
view of the record reveals that competent,
Substanual evidence Supports the convic
/ Se
> ~ cece
1
Uons and that the
Prepriate.
11) These murd
19s... the police arr
and w grand jury iy
On August 1i, 19>
for chanve of venus
had recewed Such «
he could not recew
County. Afwr a he:
Ural judye deferred
until an atlempt to
made" Jury selecti:
on January 31, 198%
from hebruary 1 thr
{2} Davis now «
judge's failure to 5
change of venue cor
discretion An appl.
venue is addressed &
cretion, and a trial co:
reversed absent a pal
tion. Straight », AY
(Fla.), cert denied, 45
556, 70 L.Bd.2d 418
State, 378 So.24 274
no such abuse here.
In Manning this «
test for changing w
McCaskill v. Slate, ¢
1977), The Court wer
_ ip applying that test
' @ determination m
, Whether the general
inhabitants of @ com:
_ by knowledge of the
* presented in the cour
$ 378 So 2d at 276. The t
avis did not meet this
13) At the hearing [
detailing media eo
1 A tnal court may wait
' HAA & change of venue ,
a!
‘<a :
a “ . - » i> . 4 3 at. «
*, OE eo m2 ;
' Sa ‘> Sy < ¢,
‘
‘ a »
A .
Lye mer
oe
entenées of death
f three counts of
e where, even
sufficient to Sup
tance of avoiding
idence supported
es of heinous,
ws, premeditation,
tempted robbery.
Public Defender,
a, and Andrew
Tallahassee, and
Atty. Gen., Jack-
is convicuons of
death. We have
"wn 3(bx1), Flori-
“m the convictions
avis with three
murder for the
of a woman and
. daughters in their
'« 3 him as charged
death penalty for
‘rial court agreed
‘ndution and im
cs
im (a) the trial
zs (1) by failing to
« of venue, (2) by
dual and se yes
\ tlenving @ motion
Hitess’ te stumony
v) the trial judge
halletace for cause
and tc) the prose-
rendered the pen
tally unfair. Af.
ts, we find that
Moreover, our re-
that competent,
ors the convic-
> af = ra + ee J
Ce RE DB
7 gust
,
DAVIS v. STATE
Fla. 69
Cite as 461 $0.24 67 (Fla. 1984)
ions and that the death sentences are ap
propriate. \ e
{1} These murders occurred on May 11,
1982, the police arrested Davis on May 13,
and a grand jury indicted him on May 27.
On August 11, 1982 Davis filed a motion
for change of venue, alleging that the case
had recewwed such extensive publicity that
he could not receive a fair trial in Duval
County. After a hearing on August 17, the
trial judge deferred ruling on that motion
until an attempt to select a jury had been
made. Jury selection subsequently began
on January 31, 1983, with the trial lasting
from February 1 through February 4.
[2] Davis now claims that the tnal
judge's failure to grant the motion for
change of venue constituted an abuse of «
disereuon. An applicauon for change of
venue is addressed to a court's sound dis-
cretion, and a trial court's ruling will not be
reversed absent a palpable abuse of discre-
tion. Straight v. State, 397 So.2d 903
(Fia.), cert. denied, 454 U.S. 1022, 102 S.Ct
556, 70 L.Ed.2d 418 (1981), Manning v.
State, 378 So.2d 274 (Fla.1979). We find
no such abuse here.
In Manning this Court reiterated the
test for changing venue as set out in
McCaskill v. State, 344 So.2d 1276 (Fla.
1977). The Court went on to explain that
in applying that test
a determination must be made as to
whether the general state of mind of the
inhabitants of a community is so infected
by knowledge of the incident and accom-
panying prejudice, bias, and preconceived
opinions that jurors could not possibly
put these matters out of their minds and
try the case solely on the evidence
presented in the courtroom.
47% So 2d at 276. The trial court ruled that
Davis did not meet this test, and we agree
(3) At the hearing Davis presented evi-
dence detailing media coverage of the case.
According to this evidence, the bulk of the
publicity on the case appeared from mid
May through early June 1982 with sporadic
1. A tral court may wart dedide whether to
era: nanwe of venue datl alter ap attempt
coverage after that By the time for jury
selection almost nine months had passed
since the murders. Of the forty-some pro
spective jurors called several acknowledged
having heard or read something concerning
the case. Either the defense or the state
used peremptory challenges to excuse
some of these prospective jurors, but the
final jury panel contained several persons
who had some prior knowledge of the case.
All who served on the jury, however, indi
cated affirmatively that any prior knowl
edge could be put aside, that they could
serve with open minds, and that they could
reach a verdict based on the law and the
evidence presented at tria!.
Media coverage and publicity are only to
be expected when murder is committed.
The critical question to be resolved, how-
ever, is not whether the prospecUve jurors
possessed any knowledge of the case, but,
rather, whether the knowledge they pos-
sessed created prejudice against Davis.
Straight. Davis has not shown a commu-
nity “so pervasively exposed to the circum-
stances of the incident that prejudice, bias,
and preconceived opinions are the natural
result.” Manning, 378 So2d at 276.
Moreover, following jury selection, Davis’
attorney announced that he had consulted
that both he and Davis were satisfied with
the jury selection even though they had one
peremptory challe.ge left On the facts
presented here we find that the tra! court
did not abuse its discretion by failing to
grant the motion for change of venue.
{46} Davis also claims that the tnal
court erred by failing to conduct individual
and sequestered voir dire of the prospec:
tive jurors as requested by the defense.
The granting of individual and sequestered
voir dire is within the tral court's dwere
tion. Stone v. State, 37% So.2d 765 (Fla.
1979), cert. denied, 449 US 986, 101 S.Ct
407, 66 L.Ed 2d 2 (1980), Jones rv State,
343 So.2d 921 (Fla. 3d DCA), cert denwd,
352 So.2d 172 (Fla.1977). The pupose of
to seat a jury 1s made =Marning » Ssate, 378
Sw 2d 274 (Fla 1979).
‘A -4%4
‘70 Pia
conducting voir dire is to secure an impar-
tial jury Lewis v. State, 377 So 2d 610
(Fla 1979). Davis has demonstrated nei-
ther the partiality of his jury nor an abuse
of discretion by the trial court, and we find
no merit to this claim
(7-9] As higelast point dealing with the
jury, Davis argues that the trial court
erred by not excusing 3 certain prospective
juror for cause. The competency of a chal-
lenged juror is a mixed question of law and
fact, the determination of which is within
the trial court's discretion. Christopher vr
State, 407 So.2d 198 (Fla.1981), cert de-
med, 456 US. 910, 102 S.Ct. 1761, 72
LEd2d 169 (1982). Manifest error must
be shown before a trial court's ruling wi!
be disturbed on appeal. Jd. “The test for
determining juror competency is whether
the juror can lay aside any bias or preju-
dice and render his verdict solely upon the
evidence presented and the mstructions on
the law given to him by the court.” Lusk
v. State, 446 So.2d 1038, 1041 (Fla.1984)
The prospective juror in question met that
test. When the defense challenged her for
cause the court pointed out that “the last
tue you inquired of her, she said that she
could listen to all of the evidence and ren-
der a verdict based on that, so I will deny
your motion.”
{10} Prospective jurors are frequently
amtuvalent, and their answers, as well as
the questions asked of them, are, some
times, not models of clarity. In such in-
stances, as here, it can be argued that the
words on the cold record have several
meanings and are subject to several inter-
pretations. It is of great assistance to an
appellate court if a trial court states on the
record the reasons for granting or not
granting a challenge for cause, and we
encourage trial courts to do so.
At trial the state called Davis’ father to
testify about a pistol missing from his
home. The following exchange between
the prosecutor and the witness occurred:
Q [Mr. Austin] While—did Allen subse
quently leave with the police to go to the
police station”
A [Donald Davis} Yes.
461 SOUTHERN REPORTER, 24 SERIES
Q Do you know whether he did that
freely and voluntarily or not’
A Yes, he did
Q He did’
A 1 heard him tell [Detective] Kessing
er, “Lat's go take a lie detector test and
get it over with”
Defense counsel then objected to the men
tion of a polygraph examination as being
highly prejudicial and moved for 4 mistrial
After discussion, the trial court denied the
motion and stated: “I don’t think there i
any prejudice. It was mentioned. There is
no evidence that [a polygraph examination}
was given and no evidence tho there is
[sic] any results.” The court then directed
the jury to disregard the witness’ reference
to a lie detector, Davis now claims that
the trial court erred in denying his motion
for a mistrial
{11-13} Unless both sides consent, the
results of polygraph examinations are inad
missible in adversarial proceedings. Walsh
v. State, 418 So.2d 1000 (Fia.1982). Here,
however, neither party sought to have any
such results introduced. The mere mention
of the possibility of a polygraph examina
tion does not compel the granting of a new
trial. See Sullivan v. State, 303 So.2d 632
(Fia.1974), cert. denied, 428 US. 911, 96
S.Ct. 3226, 49 L.Ed.2d 1220 (1976). The
trial court's cautionary instruction to the
jery cured any problem with this witness’
inadvertent reference to a polygraph exam.
ination, and we find no error on this point
{14) As his final point on appeal, Davis
contends that the prosecutor's argument to
the jury during the penalty phase rendered
those proceedings fundamentally unfair
After the jury charge, defense counsel ob-
jected to one of the prosecutor's remarks,
an alleged “golden rule” comment. The
court overruled the objection, finding that
the manner and context of the remark did
not constitute a “golden rule” argument
We agree. The control of commenis in
closing arguments is within a trial court's
discretion, and a court's ruling will not tx
overturned unless a clear abuse is shown
Teffetelier v. State, 439 So2d 840 (Fla
\
1983), cert. denied, —
1430, 79 LEdzd 75
Showing has been ma
115.16] Defense ex
to the other comments
appeal. In the absence
ror the failure to obye
ation of this point on
State, 449 So.2d ¥08 (
State, 438 So.2d 374
nied, — US. —-,
L Ed.2d 725 984) =D.
the comments constity
ror This simply is no
ments had no signifi
Jury's recommendation
posed. They did not r
of the conviction or ser
Even if this prosecu
been objected to there
error committed by +
State rv Murray, 443 :
1954), we stated that *
alone dues not warrant
unless the errors iy
to a fair trial that they
ed as harmiess.” Wey
the error must be so pr
the entire trial as judg
error rule from Chap:
386 US. 18 87 SCe fs
(1967)? Wide latitude i
ing to @ jury. Breed
Se.2d 1 (Pla), cert. den
103 S.Ct. 482, 74 L.Ed
this case the prosecutor
jury to recommend the
we do not find that b
Our review of the recor
prosecutor restricted h.
dence in the record and
ments on that evidence.
ally distinguishable fro
696 F.2d 940 (Lith Cir.
US. —, 3 S.Ct 354
(1983), on which Davis ¢
ecutor pointed out, the
and her two young child
8 terrible crime, and th
2 In Chepmen the Court
+ Sourt must be able ty do
S%e v.
i
hether he did that
y or not?
D * ctive] Kessing-
we detector test and
byected to the men-
.amunation as being
noved for a mistrial
rial court denied the
! don't think there is
mentioned. There is
_ graph examination)
dence that there is
court then directed
e witness’ reference *
vis now claims that
» denying his motion
h sides consent, the
aminations are imad-
proceedings. Walsh
10 (Fla 1952). Here,
sought w have any
1. ‘The mere mention
polygraph examina-
“he granting of a new
State, 303 So 2d 632
+4, 428 US. 911, 96
74 1220 (1976). The
Y struction to the
‘> " with this witness’
‘oa polygraph exam
*. error on this pomt
mt on appeal, Davis
erut~r's argument to
ralty phase rendered
ndatentully unfair
», defense counsel ob
Lroseculors femurks
“ale” comment. The
yeetion, findung that
«xt of the remark did
fon rule” argument
rol of comments in
withon a trial court's
~S ruling wil not be
lear abuse ws shown
‘+c 8 tn ete
DAVIS v. STATE
Che as 461 $0.24 67 (Fla 1984)
1983), cert. denied, — US. ——, 104 S.Ct.
1430, 79 LEd2d 754 (1984) No such
showing has been made here.
115,16] Defense counsel did not object
ww the other comments complained about on
appeal In the absence of fundamental er-
ror the farlure to object precludes consider.
ation of this point on appeal. Bassett r.
Statc, 449 So.2d #03 (Fla.1984), Mason +
State, 438 So.2d 374 (Fia.1983), cert. de-
nied, — US. —, 104 S.Ct 1330, 79
L.Ed 2d 725 (1984). Davis now claims that
the comments constituted fundamental er-
ror. This simply is not correct. The com-
ments had no significant impact on the
jury's recommendation or the sentence im-
posed. They did not go to the foundation
of the convicuon or sentence.
Even if this prosecutor's argument had
been objected to there was no reversible
error committed by the argument. In
State v. Murray, 443 So.2d 955, 956 (Fla.
1984), we stated that “prosecutorial error
alone does not warrant automatic reversal!
. unless the errors involved are so basic
to a fair trial that they can never be treat-
ed as harmless.” We went on to hold that
the error must be so prejudicial as to taint
the entire tnal as judged by the harmiess
error rule from Chapman v. California,
386 US. 18, 87 S.Ct. 824, 17 L.Ed 2d 705
(1967)? Wide latitude is permitted in argu-
ing to a jury. Breedlove v. State, 413
So.2d 1 (Fla), cert. denied, 459 US. 1060,
104 S.Ct. 482, 74 L.Ed 2d 627 (1982). In
this case the prosecutor strongly ured the
jury to recommend the death penalty, but
we do not find that he went overboard
Our review of the record discloses that the
prosecutor restricted his argument to cvi-
dence in the record and to reasonable com-
ments on that evidence This case us factu-
ally distinguishable from Hance v Zent,
696 F.2d 940 (Lith Cw), cert. denied, —
US. —, 103 S.Ct. 3544, 77 L.Ed 2d 1393
(1983), on which Davis relies. As the pros-
ecutor pointed out, the killing of a woman
and her two young children in thei home is
a terrible enme, and the proof aguinst Da-
?_ tO man the Court he! “hat a reviewing
ores Ome sage o cwlvef thor [the
Pe-3
Fla 71
vis was substantial We therefore find no
merit to this point. -
In his sentencing order the trial court
found five apgravating factors (under sen-
tence of imprisonm« nt. previous conviction
of violent felony, committed during course
of a burgiary; heinous, atrocious, or crue},
and cold, calculated, and premeditated) ap
plicable to all three courts of the indict
ment plus one add:tional factor (avoid or
prevent arrest) applicable to the younger
daughter's death. The trial court found
nothing in mitigation
Davis’ appeliate attorney has not chal-
lenged the death sentences. In response to
a@ question asked at oral argument he stat-
ed that he had made a tactical decision not
to do so and gave several reasons for his
decision. First, he said that, in al) candor,
only the cold, calculated, and premeditated
and avoid or prevent arrest aggravating
circumstances could be argued against.
Moreover, because no mitigating circum-
stances existed and because the jury had
recommended the death sentence, the sen-
tence could be sustained even if this Court
found those aggravating circumstances im-
proper. Elledge v. State, 346 So.2d 98
(Fia.1977). Finally, defense counse! stated
that, taking the above into consideration,
he had decided to use his brief to attack the
convictions rather than the sentences, ever
though he disagrees with the sentences.
{17} Section 921.141, Florida Statutes,
however, directs this Court to review both
the conviction and sentence im a death casc,
and we will do so here on our own motwn.
Our review convinces us that ali but one
aggravating circumstance, avo or prevent
afrest, are supported by the record and
that the trial court properly applied them io
Davis. Davis had becn convicted previcus-
ly of several counts of robbery, attempted
robbery, and use of a firearm during coim-
mission of a felumy. At the ume cf these
murders Davis was on parole fron a fif-
teen-year prson sentence. Aduniwnally,
the person who had drepped Davis off so
error) was harmlcw tevend 4 reasnsle
doubt” 386 US at 24 87 S.Ct. at 823.
72 Fla
that he could commit a burglary stated that
when he picked Davis up again Davis had
in his possession a camera of the same
make as one belonging to the family of the
victims which the vicums’ husband and fa-
ther reported as missing after their deaths
The manner and method of these murders
supports the finding of heinous, atrocious,
or crucl—the mother had been beaten over
the head with a pistol almost beyond recoy-
nition, one child was tied up and then shot
twice, and the second child was shot once in
the back and then beaten, all of which
occurred in the mother’s bedroom and the
short haliway to that bedroom. See Breed-
love v. State. The state’s evidence is also
sufficient to support the court's finding of
cold, calculated, and premeditated in ayyra-
vation. Compare Harms v. State, 438
So.2d 787 (Fla.1983), cert. denied, — US
—, 104 S.Ct 2181, 80 L.Ed 2d 563 (1984)
(no evidence of planning, mstruments of
death all from victim's premises) with the
instant case (entering home armed with
pistol and with rope used to bind one of the
victims). We do not find, however, that the
evidence meets the standard of Riley v.
State, 366 So.2d 19 (Fla.1978), and Menen-
dez v. State, 368 So.2d 1278 (Fla.1979), and
we therefore strike the court's finding of
Avoid or prevent arrest in aggravation of
/ the younger child's murder.
In the sentencing order the trial court
Stated: “The Court finds that there are no
statutory mitigating factors existent in this
cause ...." The mitigating evidence was
not restricted to that listed in section 921.-
141, however, and we find the court's fail-
ure to mention nonstatutory mitigating evi-
dence to be merely inartful drafung of the
sentencing order.
Striking one of the aggravating circum-
stances leaves five valid ones for each
count, with nothing in mitigation. We
therefore affirm both the convictions and
the sentences of death
It is so ordered.
BOYD, CJ., and OVERTON, ALDER-
MAN, McDONALD, EHRLICH and
SHAW, JJ., concur.
—~—
461 SOUTHERN REPORTER, 2d SERIES
ADKINS, J., concurs in result only with
the conviction and concurs with the
tence.
sen
J. Robert ROWE, Appeilant,
v.
PINELLAS SPORTS AUTHORITY,
et al., Appellees.
PINELLAS RESORT ORGANIZATION,
INC., et al, Appellants,
v.
PINELLAS SPORTS AUTHORITY,
et al., Appellees. .
Nos. 65322, 65120.
Supreme Court of Florida.
Nov. 9, 1984
Rehearing Denied Nov. 21, 1954
Consolidated appeals were taken from
a judgment of the Circuit Court, Pinelius
County, James B. Sanderlin, J., which vali
dated revenue bonds to be used to firanc
a sports stadium. The District Court of
Appeal, Adkins, J., held that’ (1) ordinance
permitting use of tax revenues to secure
revenue bonds issued for certain projects
including sport stadiums complied with re-
quirements of statute permitting countics
to levy a tourist development tax; (2) Flori:
da law does not require that every substan.
tive provision of a proposed ordinance be
reflected on a referendum ballot; all that is
required is that the voters be given fair
notice of the questiun to be decided; (2)
since Pinellas Sports Authority charter was
enacted by subsequent special act, the au-
thority for pledying of tourist development
tax revenues by county to secure obl,:.-
ons issued by the PSA controlled over any
limitation imposed upon such a pledie by
Statute authorizing eq
ist development tax; ;
Opment tax did not vie
clause of the Flonda (
Affirmed
1. Courts ©2216
District Court of
Jurisdiction over bond
ing, also had jurisdict.
ing declaratory relief,
dated with the bond y
and which involved m:
sues as in the bond vy;
West's FSA. Const A
2. Administrative La:
e121
Languave of Flori¢
MOL api.) to gatherings
members and staff of d
tal entities; furthermor
erings constituted meet
ute, those gatherings -
level of decision-maki:
quired to violate the /
§ 286.011(1).
3. Counties 190(1)
Ordinance permitti:
bues to secure reveny
certain projects includ
* complied with requirem
_Mitting counties to levy
ment tax. West's F.S.,
4. Counties ©1901)
+ Since the full text o
been advertised and d
hearing calied to consid
pertaining to use of to
sufficiently complied w
quirements of the To
Act. Wests F .
IN THE SUPREME COURT OF FLORIDA
ALLEN LEE DAVIS,
Appellant, g
v. g CASE NO. 63,374
STATE OF FLORIDA, $
Appellee. :
MOTION FOR REHEARING
Appellant, ALLEN LEE DAVIS, pursuant to Fla.R.App.P.
9.330(a), moves this Court for rehearing in the above-styled
case, and as grounds therefor states:
1. Four of the five issues presented in appellant's
brief - concerning his motion for change of venue, his motion
for individual and Sequestered voir dire, his Challenge for
C“4Se 20 a juror who had “more or less’ mace up her mind about
the case based on pre-trial publicity, and his motion for
mistrial when a state witness referred to a lie detector
test - were interrelated to one another, and each of these
issues was directly related to the pre-trial publicity*in
the case. Appellant's arguments were not primarily based
on the amount of publicity, but rather on the inherently
prejudicial nature of the publicity, and the fact that, as
@ result of the trial court's rulings, it was never ascertained
whether the ten potential jurors, or the four jurors who
actually served, who acknowledged having been exposed to the
publicity were aware of the-Inadmissible and highly prejudicial
information revealed in the media (including the fact that
appellant had taken and failed a lie detector test), or
wnether these jurors had been exposed to certain grossly inflane-
matory editorials, feature articles, and broadcasts (such as
the Rothstein “piece” on TV channel 12, which denounced Parole
authorities for releasing prisoners back onto the streets to
commit crimes, and referred Specifically to Allen Davis as
Aprendi:: 3
a - 6
one who “needed to serve a little more time" and who subse-
quently murdered a child. To briefly recapitulate, the media
exposed the Duval County community to: 1). inadmissible evi-
dence of Davis’ prior criminal record, including convictions
of manslaughter, two armed robberies, and attempted robbery;
2) inadmissible evidence that Davis was od paneho at the time
of the murders; 3) inadmissible evidence that Davis took a
polygraph and failed it; 4) Davis’ statements (the etnieai-
bility of which had yet to be determined) to police, placing
him in the Weiler home at the time the medical examiner
believed the murders occurred, and claiming that he had a
lapse of memory while in the house; 5) ex parte statement
“
of evidence indicative of guilt which the police hud assembicd,
including the facts that a handgun belongins to Davis’ father
was missinc, that a cord found in Davis’ truck matched the
cord which bound Kristy Weiler's wrists, and that police lad
found three eyewitnesses who could pin down Davis’ whereabouts,
one of whom saw him in the neighborhood with a gun in his
hand; 6) statements by state officials expressing their cer-
tainty of Davis’ guilt; that they had the right suspect, and
that they had a “very significant case" against him; 7) state-
ments by police to the effect that Davis' friends or relatives
might interfere with their efforts to find evidence; specifi-
cally the missing handgun; 8) inflammatory commentary strongly
tending to evoke community sympathy for, and identification
with, the victims (and, concomitantly, prejudice against thr
named suspect, Davis), including an article about Kristy's
schoolteacher having to break the news of her death to her
classmates; newscasts emphasizing the reaction of the Weilers'
close-knit, upper-middle class, family-oriented neighborhood
to the horror and senselessness of the crime; references to
Mrs. Weiler's being pregnant at the time of her death;
references to Kristy’s tenth birthday party which was to have
been held the next day; and the medical examiner's emotional
rwagetson as he left the house, and 9) the aforementioned
te
Rothstein "piece." See appellant's initial brief, p.7-18.
2. In its opinion affirming appellant's convictions and
Geath sentences, this Court treats the four issues referred
to above as if they had nothing whatsoever to do with one
another. As to Issue IV, concerning the reference to a poly-
graph examination, the opinion states that "[t]he mere men-
tion of the possibility of a polygraph examination does not
compel the granting of PF new trial," and guotes the trial
judge's comment, in denying the motion for mistrial, “I
don't think there is any prejudice. It was mentioned. There
is no evidence that [a polygraph examination] was given and
no evidence that there is [sic] any results." Nowhere in
the opinion is there any reference to the fact that the news
media (both daily newspapers and local network television)
had revealed that appellant had takcn and failed a polycraph
examination nor is there any recognition of the possibility
that, even if one or more of the jurors who had been exposed
to the media coverage had forcotten about the lie detector
test, the witness’ conment could easily have refreshed their
memories. As to the chance of venue and individual and
Sequestered voir dire issues, the opinion concludes that the
trial court did not abuse his discretion in denying these
motions, without any discussion of the nature and content of
the publicity complained of. In Coveland v. State, So. 2d
(Pla. 1984) (case no. 57,788, opinion filed September 13,
1984), decided less than a month before the Opinion in the
instant case was issued, this Court observed:
In Murphy v. Florida, the United States
Supreme Court said that a defendant might
possibly raise a presumption of partiality
by showing that the general atmosphere of
the community is deeply hostile to him.
Two ways to establish that such hostility
exists are by showiny that there was
intlaummatory publicity and by showing
great aifiiculty in Selecting a jury. App.l-
lant here has failed to establish such
hostility by cither of these methods. As
was the case in ‘urphy, the pretrial pub-
licity here was Tarceoly factual, rathor °
than emotional, in nature and mainl,
occurreu around the time of the crime and
the investigation, several months before :
the trial.
-3-«
a
In the instant case, appellant's arcument was directed
almost exciusively to the first method of establishing communit:
hostility, i.e. by showing that the media coverage was inflan-
matory and highly prejudicial. From a reading of the opinion,
the natural assumption would be that since the Court did not see
fit to discuss the content of the publicity, i+ must have been
(as in Copeland and Murphy) “largely factual, rather than emo-
tional, in nature.” Yet, that is clearly not the case.
3. Undersigned counsel understands that he cannot Gictate
to this Court what facts to put in its opinion and what fac
to leave out. However, a line of questioning which was pursucd
at oral argument in this case illustrates the problem which
concerns him. Undersigned counsel was asked, “How was the pube
licity in this case worse than in Debbert.2* Ungersicned
counsel could only reply to the effect that, "I don’t know hex
the publicity was worse than in Dobbert, because the Cpinion
in Dobbert doesn't indicate what the mature of the publicit;
was. All I can say is cither that the publicity in Debbert must
©
not have been as prejudicial as in the instant case, or else,
if it was as prejudicial, then Dobbert was wrongly Gecided.”
Several years from now, a lawyer from Miami or Tampa or sone-
where may well be asked by this Court, P'How was the publicity
in your case worse than in Davis," and}he will have tc give the
sone lame answer. Appellant submits that the inherently preju-
dicial and inflammatory nature of the media coverage in this
case, combined with the fact that at least ten prospective jurors
and at least four actual Jurors acknowledced exposure to it,
necessitated a change of venue Or, at the very minimum, an
Opportunity to question the jurors outside one another's pre-
sence. The trial ccurt'’s denial of both of these motions
violated appellant's constitutional right to a fair trial by an
voLbert v. State, 328 So.2d $33 (Fla. 1976)
* Oe.
4. In its opinion, this Court said:
Davis' appellate attorney has not challenged
the death sentences. In response to a ques-
tion asked at dral argument he stated that
he had made a tactical decision not to do so
and gave several reasons for his decision.
First, he said that, in all candor, only the
cold, calculated, and premeditated and avoid
or prevent arrest aggravating circumstances
could be argue“ against. Moreover, because
no mitigating circumstances existed and be-
cause the jury had recommended the death ;
sentence, death would still be the appropriate ‘
- penalty even if this Court found those aggrava- ;
ting circumstances improper. Finally, defensee™
counsel stated that, taking the above into
consideration, he had decided to use his bricf
to attack the convictions rather than the.
sentences. We appreciate counsel's candor.
f
This statement is substantially correct, but it contains
One misleading implication which Geeply concerns undersigned
counsel. What undersigned counsel stated at Oral argument,
in response to the court's inquiry, was that he made a tactical
decision not to challenge any of the trial court's findincs of
acgravating circumstances because 1) only two of these findings
could arguably be attacked and one ‘of those (avoid arrest)
a
ppliec to only one of the three death Sentences; 2) the trial
court found no mitigating circumstances, and there was no evi-
Gence from which it could be argued that a miticating circum-
Stance was established as a matter of law; and 3) since the jury
recommended the death penalty and since there were no mitigatins
circumstances found, a challerge to the two arguably improper
aggravating circumstances, even if successful, would be futile
in that this Court could (and, in the undersigned's professional
Opinion, unquestionably would) apply the so-called "Elledce °*
rule"? and affirm the death sentence based on the four remaining
aggravating circumstances. Moreover, undersigned’ counsel con-
cluded, on the basis of the U.S. Supreme Court's opinion in
Zant _v. Stephens, 0.8. » 103 $.Ct. » 77 L.E@. 235
(1993), that a federal constitutional challenge to application
of the “Elledce rule” would have no chance of success. Con-
sequently, undersigned ee his efforts on the
2 Elledae v. State, 346 So.2d 998 (Fla. 1977)
.
four issyes relating to the conviction and to the fifth issue
challenging the fundamental fairness of the penalty proceeding
because of the prosecutor's repeated misconduct in closing
argument. ; ‘
Thus, it is true that undersigned counsel conceéed that
because no mitigating circumstances were found and because the
jury nad recommended death, then even if one aggravating circye-
stance (or, in one of the counts, two aggravating circumstances)
was found improper, this Court would still affirm the death
sentences, and could do so without violating existing law.
Unéersigned counsel did not concede, as the opinion seems to
indicate, that “because no mitigating circumstances existed
and because the jury had recommended the death sentence, death
would still be the appropriate penalty even if the Court found
those aggravating circumstances improper.”
This is no mere semantic distinction. Undersicn é counsel
stands by his statement as actually made at oral arcuncert es
&@ legitimate tactical decision based on the current state of
the law and on his assessment of the likelihood of a sicnifi-
cant change in the law. Bowever, if undersigned counsel, while
representing a defendant in a capital case, had conceded that
Geath was the appropriate penalty in the case (which under-
signed Gid not say and does not believe), this would have been
unethical and unprofessional conduct, mot to mention crossly
ineffcctive assistance of counsel. At least four of under-
signed’s colleagues at the Public Defender's Office, includine
Andrew Thomas, who was an Assistant Attorney General at the time
and was undersigned's opponent in the oral argument of this
case, were present at the oral argument, and each of them con-
d undersigned's recollection that he did not tell the
t that cceath was the appropriate penalty in this case.
onseyuently, undersicned counsel respectfully recuests that
this Court listen to the tape recording of the oral argurent,
ang correct its oOpinicr accordingly. ”
\e
a A e a
WHEREFORE, appellant respectfully requests that this
motion for rehearing be granted.
Respectfully submitted,
MICHAEL E. ALLEN
PUBLIC~DEFENDER
SECOND JUDICIAL CIRCUIT
s lice “4 Z bos Ot, f
sil - : STEVEN L. BOLOTIN
; q Assistant Public Defender
; Post Office Box 67]
Tallahassee, Florida 32202
(904) 488-2458
Attorney for Appellant
CERTIFICATE OF SERVICE
T HEPEB
4 RUOREBY CERTIFY that a copy of the foregoing has been
tarnished by hand to Honorable Jim Smith, AttorneyfGeneral,
4
The Capitol, Tallahassee, Florida, this [% dayAf Octcber,
1934.
c+ . / ‘ eee *- -
ee ey ee 3
STEVEN £. BOLOTI:
Assistant Public Defender
- 7 «
"eo ww
Srpreme Court of Florida
Appellee.
~
THURSDAY, JANUARY 17, 1985
oe CASE NO.
63,374
Circuit Court Case “OO. 32-4752-cr
(Duval County
The Motion for Rehearin
of the revised opinion is hereby denied.
A True Copy
cc:
Append... >
g having been considered in light
i
~~. .
te “o< aa ~*
ve J -t ive>
ye? .
ST e~winv isa >| "ed
Noe - _ id =
pup a! fe mawes
AL
or
Hon. S. Morgan Slaughter, Clerk
Hon. Major B. Harding, Judge
tSteven L. Bolotin, Esauire
Andrew Thomas, Esquire
Kathryn L. Sands, Esquire
Div.
State Attorney Numbe 82-29361 NCA: 6-9-82
IN T. . CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT, IN
AND FOR DUVAL COUNTY,
FLORIDA.
CASE NO.: 82-4752 CF
DIVISION: R
STATE OF FLORIDA
vs
L., —
ALLEN LEE DAVIS vi F J LED
JUN 9 1882
MOTION FOR INDIVIDUAL of,
AND SEQUESTERED VOIR DIRE cites Temcur cover _|
The Defendant, ALLEN LEE DAVIS, by and through the undersigned attorney,
the Public Defender for the Fourth Judicial Circuit of Florida, respectfully moves this
Honorable Court to order that prospective jurors in this cause be questioned in voir dire
individually and out of the hearing of other prospective jurors, for the purpose of
discerning their attitudes relating to engine’ punishment and their knowledge of the case
based upon pre-trial publicity, and asserts the following grounds in support of this motion:
A. In order to obtain a fair and impartial jury, it is absolutely essential to
inquire of each prospective juror about his knowledge of the offense, the parties, and the
witnesses. It is necessary to inquire what the venireman's knowledge is ‘and to ask
questions to determine how that knowledge will affect his deliberations.
1. By explaining what he has heard about the charges or what he
knows about parties or witnesses, & venireman may very likely impart his knowledge to
the other prospective jurors unless there is individual, sequestered voir dire. Such
knowledge, which is often based on opinion, rumors, hearsay, media coverage, and other
sources of inadmissible evidence, can taint the entire venire that is exposed to it and
serve to deny the Defendant a fair trial by an impartial jury. See Russ v. State, 95 So. 2d
594 (Fla. 1957); Moncur v. State, 262 So. 2d 688 (2 DCA 1972); Marrero v. State, 343 So. 2d
883 (2 DCA 1977); Kelly v. State, 371 So. 2d 162 (1 DCA 1979).
2. Whenever there is believed to be 4@ significant possibility that
individual talesman will be ineligible to serve because of exposure to potentially
prejudicial material, the exar ‘nation of each juror with respect to his exposure shall take
place outside the presence of other chosen and propsective jurors. Standard No. 3.4,
American Bar Association, Standards Relating to Fair Trial and Free Press; U.S. ex rel.
Doggett v. Yeager, 472 F.2d 229 (3 CCA 1973)
Apyendix D
Motion for Individual an
Sequestered Voir Dire
Page Two
B. Prospective jurors in capital cases are routinely questioned by the court,
the prosecution, and the defense about their beliefs in the death penalty. Often, this
questioning is of a repeated and prolonged nature. Such questioning about the death
penalty in the presence of the other veniremen focuses attention on penalty before the
defendant has been found guilty. As a result, some jurors may be more likely to believe,
that the defendant is guilty as charged. The influence of this procedure, however subtle,
undermines the constitutional purpose and functioning of the jury in a criminal trial.
"When the case is close, and the guilt or innocence of the defendant is not readily
apparent, a properly functioning jury system will insure evaluation by the sense of the
community and will also tend to insure accurate fact finding. Ballew v. Georgie, 98 S.Ct.
1029 (1978), at p. 1038.
1. Jurors undergoing death-qualification would have reason to infer
that the judge and the attorneys personally believe the accused to be guilty or expect the
jury to come to that conclusion. Only such an inference could serve to explain to the
jurors why so much time and energy are devoted to an extensive discussion of penalty
before trial. Provided with these cues from people who are not only experts in the
courtroom but are also presumably acquainted with all the evidence in the case, the
relevant law, and the "correct" application of the one to the other, death-qualified jurors
may themselves become more inclined to believe that the accused is guilty as charged.
_
Hovey v. Superior of Alameda County, 616 P.2d 1301 at 1348 (Cal. 1980).
2. If a juror is predisposed by the very process of the death-qualifying
voir dire to believe the accused is guilty, the juror will tend, in consequence of that
perspective: (1) to selectively perceive the evidence—e.g., "forgetting," distorting, or
actually failing to perceive evidence which conflicts with his or her
preconceptions; (2) to draw only those inferences from the evidence which supported
those preconceptions and perhaps to "create" data to reinforce those beliefs; and (3) to
evaluate the evidence perceived—e.g., assess credibility of witnesses, weigh the
_* (erences drawn—in a manner which tends to fulfill his or her expectations. Moreover, a
juror who is predisposed to expect a guilty verdict will tend to arrive more readily at the
conclusion that the evidence presented amounts to proof beyond a reasonable coubdt.
Hovey, supra, at 1348.
Mertens fore Devetiw tetas) are? -
Secques
tered Voir Dire a ee
Page Three
3. <A capital jury, which has been predisposed by virtue of the very
process by which it has been selected to think the accused guilty in advance of trial, is
unlikely to function properly or maintain its neutrality. As 4 jury's neutrality decreases,
the quantum of evidence necessary to prove guilty also decreases.
Hovey, supra, at 1349. ;
C. In addition to making a capital jury prone to convict, the non-
sequestered method of death qualification may alter the states of mind of the jurors
exposed to it in ways which make them more likely to impose & death sentence. Death-
qualification of jurors in the presence of other veniremen therefore inhibits the ability of ¢
the jury to perform their constitutionally mandated function to "express the conscience of
the community on the ultimate question of life or death.” Witherspoon Vv. Illinois, 88 S.Ct.
1770 (1968), at p. 1775. "It is, of course, settled that a state may not entrust the
determination of whether a man is innocent or guilty to 4@ tribunal ‘organized to convict.’
(Citations omited) It requires but a short step from that principle to hold, as we do today,
that a state may not entrust the determination of whether a man should live or die to @
tribunal organized to return 6 verdict of death. Witherspoon, Supra, at p. 1776. The
process of non-sequestered death-qualification is constitutionally impermissible because,
as in Witherspoon, it produces a jury "yuneommonly willing to condemn a man to die.”
Witherspoon, supra, at p. 1776. y
1. During 4 death-qualifying voip dire, venirepersons are questioned in
open court about their attitudes toward the death penalty. The fact that the court
dismisses those venirepersons who express unequivocable opposition to the death penalty
is likely to be interpreted by the remaining jurors as an indication that the judge in
particular and the law in general disapprove of such attitudes. Jurors whose scruples
against capital punishment are not so irrevocable as to disqualify them under Witherspoon
feel that in the eyes of the law, their attitudes are improper, or et least suspect. Those
jurors may in consequence feel less willing to express or rely on such attitudes in their
consideration of penalty.
Hovey, supra, at 1350.
2. In a capital voir dire, prospective jurors are repeatedly promptec
to think about the penalty decision they may later be called upon to make. What wa:
—
Motion for Individuel ¢
Sequestered Voir Dire
Page Four
initially regarded as an onerous choice, inspiring caution and hesitation, may be more
readily undertaken simply because of the repeated exposure to the idea of taking a life.
Some jurors initially face the penalty decision with reluctance and aversion. This may
represent a significant viewpoint in the community. A process which systematically
erodes these attitudes would make the jury less representative of the community and
more inclined to impose death.
D. The most practical and effective procedure available to minimize the
untoward effects of death-qualification is individualized sequestered voir dire. Because
jurors would then witness only a single death-qualifying voir dire—their own—each
individual juror would be exposed to considerably less discussion and questioning about the
various aspects of the penalty phase before hearing any evidence of guilt. Such a
reduction in the pretrial emphasis on penalty should minimize the tendency of a death-
qualified jury to presume guilt and expect conviction.
Hovey, supra, at 1353.
E. To deny this motion is to deny the Defendant his right to a fair trial by
an impartial jury comprised of a representative cross-section of the community, in
violation of the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and Article I, Section 2, 9, 16, and 22 of the Florida Constitution.
F. Should the Court feel thet the allegations in this motion are f..se or of
questionable validity, the Defendant moves for an evidentiary hearing in which the
defense will prove the truth of each and every allegation in this motion.
l. Proof of these allegations will require the use of expert testimony
presented by one or more experts in this area of study.
2. In order that the Defendant may present such expert testimony,
the defense moves for the entry of an order approving the taxing of reasonable costs to
the county for expert — housing, and transportation. ,
3. The Defendant is indigent and has no means to pay for expenses
incurred in an evidentiary hearing.
4. The Public Defender's Office has no budgetary allotment for such
expenses.
Motion for Individua’ 4
Sequestered Voir D.
Page Five
5. To deny the Defendant the expenses necessary to conduct an
evidentiary hearing to prove the allegations of this motion is to deny the Defendant the
effective assistance of counsel, due process of law, and equal protection under the law, in
violation of Article I, Section 9 and 16 of the Florida Constitution and the Fifth, Sixth, and
Fourteenth Amendments to the U. S. Constitution.
WHEREFORE, the Defendant prays this Honorable Court to grant this motion.
Respectfully submitted,
LOUIS O. FROST, JR.
PUBLIC DEFENDER
Robert Link
Assistant Public Defender
I HEREBY CERTIFY that a copy of the above and foregoinz Motion for
Individual and Sequestered Voir Dire has been furnished to the Office of the State
Attorney, by hand, this i day of June, A.D., 1982.
tht Fock
IN THE CIRCUIT COURT OF THE
FILED
AUG 11 1982
FOURTH JUDICIAB CIRCUIT, IN
AND FOR DUVAL TY, FLORIDA
an
STATE OF FLORIDA \_
VS \' we at '
ALLEN LEE DAVIS a"
‘of nee See
cupen - CIRCUIT count
MOTION FOR CHANGE OF VENUE
Comes now the Defendant,
ALLEN LEE DAVIS, by and through his
undersigned attorney, the Public Defender for the Fourth Judicial Circuit
of Florida, and pursuant to Rule 3.240 of
Procedure,
county within the State of Florida for trial.
this motion, the Defendant,
forth:
1. The Defendant was indicted and charged
of First Degree Murder.
the Florida Rules of Criminal
moves this Court for an order removing this cause to another
As grounds in support of
being duly sworn, hereby deposes and sets
with three counts
2. The death of the Weilers and the arrest of Allen Lee Davis
has been subjected to extensive media coverage via television, radio, and
newspapers in the Duval County area.
3, The State, through its agent,
Office, improperly released to the news media,
the Duval County area, that Allen Lee Davis was
a polygraph examination.
4, The State, through its agent,
Office, improperly released to the news media,
the Duval County area,
as the fact that the Defendant is currently on felony parole.
5, The State, through its agent,
Offi e, improperly released to the news
the Duval County area,
the Jacksonville Sheriff's
which was disseminated in
arrested after he failed
the Jacksonville Sheriff's
which was disseminated in
Allen Lee Davis's prior criminal record as well
,
the Jacksonville Sheriff's
media, which was disseminated in
statements of Allen Lee Davis to representatives
of the Jacksonville Sheriff's Office, placing him at the scene of the murders
at the time the victims were alleged to have been killed.
6. The State, through its agent,
Office, improperly released to the news media,
the Duval County areé,
fiber analysis and the searching of local waters for a weapon.
Popendix ©
Be 3
the Jacksonville Sheriff's
which was disseminated in
certain aspects of the police investigation, to wit:
MOTION FOR CHANGE OF V , ie
P4GE TWO
7. The State, through its agent, the Jacksonville Sheriff's
Office, improperly released to the news media, which was disseminated in
the Duval County area, certain evidence relating to a gun belonging to the
weapon or discription of the weapon i volved in the death the Weilers.
8. The State, through its Bgent, the Jacksonville Sheriff's
Office, released copies of the Arrest ¥
media at first appearance court wherei\
polygraph examination was Contained.
9. The Defendant's arrest, as well as subsequent court
appearances by the Defendant or his counsel, have been reported by the
local news media to the public in the Duval County area.
10. The knowledge of the case and of the Defendant as reported
in the news media is widespread in Duval County. The potential for
prejudice in the community as 4 result of such information or the exposure
to such inadmissible evidnece or testimony is great.
WHEREBY, due to the State's misconduct and the extensive
television, radio, and newspaper coverage, the Defendant, believing that
he cannot receive a fair trial or select an impartial jury in Duval
“County, Florida, because of the members of the community could not put
these matters out of their Minds and try the case solely on the ontianen
presented in the courtroom, respectfully requests that this Court grant
this Motion for Change of VenueNand order the r moval of this cause to
another convenient county where a mpartial trial can be had.
Able VJs ew ae
ACLEN LEE DAVIS ~ ”
STATE OF FLORIDA
COUNTY OF DUVAL
Before me, the undersigned authority, personally appeared ALLEN
LEE DAVIS, who being by me duly sworn, says the statements contained in
the foregoing Motion for Change of Venue are true and correct according
to the best of his knowledge and belief.
MOTION FOR CHANGE OF VENUE
PAGE THREE
Sworn to and subscribed before me
this ¢/ day of August, A,D., 1982.
eat LAME
Rotary Pystic, State of Florida
At Large
My Commission Expires:
NOTARY PUBLIC, STATE OF FLORIDA
My Commissic
y Commission Eapires Apr. 5, 1985 Respectfully submitted,
Bonded by Transamerica Insurance Co
LOUIS 0. FROST, JR.
PUBLIC DEFENDER
OD, ob
Pub¥c Defender
CERTIFICATE OF GOOD FAITH
] HEREBY CERTIFY that the foregoing Motion for Change of
is made in good faith and not imposed mer
delay.
1 HEREBY CERTIFY that a copy of the abov
for Change of Venue has been furnished to the Office of the
ely for the purpose of unnecessary
VAL
ar
e and foregoing Motion
State Attorney,
by hand, this [1 say of August, A.D., 1982.
ys Noe beim
\
a
t -
IN THE SUPREME COURT OF FLORIDA
ALLEN LEE DAVIS,
Appellant,
v. CASE NO. 63,374
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE FOURTH JUDICIAL CIRCUIT,
IN AND FOR DUVAL COUNTY, FLORIDA
INITIAL BRIEF OF APPELLANT
STEVEN L. BOLOTIN
ASSISTANT PUBLIC DEFENDER
SPCOND JUDICIAL CIRCUIT
POST OFFICE BOX 671
TALLAHASSEE, FLORIDA 32302
(904) 488-2458
ATTORNEY FOR APPELLANT
“72ncix F
TABLE OF CONTENTS
‘TALLE OF CONTENTS
TABLE OF CITATIONS
I PRELIMINARY STATEMENT
Il STATEMENT OF THE CASE AND FACTS
III ARGUMENT
ISSVE I
THE TRIAL COURT
FAILING TO GRAj
CHANGE OF VESCE
BUSED ITS DISCRETION BY
APPELLANT'S MOTION FOR
B. The Nature and Content of the Pre-
Trial Publicity in this Case was so
Irreparably Prejudicial to Appellant's
Fundamental Right to an Impartial Jury,
that Due Process Required a Change of
Venue, with No Requirement that Actual
Prejudice be Demonstrated on Voir Dire
C. The Prejudicial Impact of the Pre-Trial
Publicity was not Cured by the Voir Dire
Examination of Prospective Jurors
ISSUE Il
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE DEFENSE'S MOTION FOR INDIVIDUAL
AND SEQUESTERED VOIR DIRE.
IssuE U1
THE. TRIAL COURT ERRED IN DENYING APPELLANT'S
CHALLENGE FOR CAUSE TO PROSPECTIVE JUROR LANE.
ISSUE IV
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING APPELLANT'S MOTION FOR MISTRIAL,
WHEN A STATE WITNESS ON RE-DIRECT EXAMINA-
TION REFERRED TO APPELLANT'S POLYGRAPH
EXAMINATION.
43
50,4
uw
J
ms
TABLE OF CONTENTS ?
(Continued) < ,
PAGE
Ill AKGUMENT (Continued)
ISSUE V
THE PROSECUTOR'S INFLAMMATORY, EMOTIONAL, AND
THOROUGHLY IMPROPER ARGUMEN1 TO THE JURY
RENDERED APPELLANT'S PENALTY PROCEEDING FUNDA-
MENTALLY UNFAIR AND CONSTITUTIONALLY INTOLERABLE> 69
I¥ CONCLUSION 78
CERTIFICATE OF SERVICE ‘ 79
« ii
TABLE OF CITATIONS
CASES
Agee v. Wyrick, 546 F.2d 1324 (8th Cir. 1976)
Akonom v. State, 394 A.2d 1213 (Md. App. 1978)
Bell v. State, 208 So.2d 474, (Fla. Ist DCA 1968)
Bollinger v. State, 402 So.2d 570 (Fla. Ist DCA 1981)
Breniser v. State, 267 So.2d 23, (Fla. 4th DCA 1972)
Carr v, Watts, 597 F.2d 830 (2d Cir. 1979)
Custor v. State, 365 So.2d 701 (1978)
Cochran v. State, 280 So.2d 42 (Fla. Ist DCA 1973)
Codie v. State, 313 So.2¢ 754 (Fla. 1975)
Commonwealth v. Barren, 417 A.2d 1156 (Pa. Super. 1979)
Commonwealth v. Casper, 392 A.2d 287 (Pa. 1978)
Commonwealth v. Frazier, 369 A.2d 1224, (Pa. 1977)
Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977)
Commonwealth v. Kemp, 410 A.2d 870 (Pa. 1979)
Commonwealth v. Pierce, 303 A.2d 209 (Pa. 1973)
Corona v. Superior Court for County of Sutter, 101 Cal.Rptr. 411
18, (Cal.App. 1972)
Crawford v. State, 321 So.2d 559 (Fla. 4th DCA 1975), approved
339 So.2d 214 (Fla. 1976)
Daniels v. State, 108 So.2d 755 (Fla. 1959)
Darden v. State, 329 So.2d 287 (Fla. 1976)
Darden v. Wainwright, 699 F.2d 1031 (11th Cir. 1983)
Daugherty v. State, 17 So.2¢ 290 (Fla. 1944)
Dean v. State, 325 So.2¢ 14 (Fla. 1st DCA 1975)
Suse v. United States, 307 F.2d 883 (Sth Cir. 1962)
- iii >
PAGE(S)
74
48,54,57
i
«2
76
76
62,64
p+ oe be . 32
22,24,25,33
62,63
30
75
TABLE OF CITATIONS
(Continued)
CASES
Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983)
Estelle v. Williams, 425 U.S. 501 (1976)
Farmer v. City of Fort Lauderdale, 427 So.2d 187 (Fla. 1933)
Frazier v. State, 425 So.2d 192 (Fla. 3d DCA 1983)
Gannett Co. v. DePasquale, 443 U.S. 368 (1979)
Glassman v. State, 377 So.2d 208 (Fla. 3d DCA 1979)
Green v. State, 427 So.2d 1036 (Fla. 3d DCA 1983)
Croppi v. Wisconsin, 400 U.S. 505 (1971)
Hance v. Zant, 696 F.2d 940 (llth Cir. 1983)
Harper v. State, 421 So.2d 235 (Fla. 3d DCA 1982)
Hembree v. State, 546 S.W.2d 235 (Tenn. 1976)
Henley v. State, 576 S.W.2d 66, (Tex. 1978)
Houston v. Estelle, 569 $.24 372 (sth cic. 1978)"
Hoy v. State, 353 So.2d 826 (Fla. 1977)
In re Miller, 109 Cal. Rptr. 648 (Cal.App. 1973)
Irvin v. Dowd, 366 U.S. 717 (1961)
Johnson v. Reynolds, 121 So. 793 (Fla. 1929)
Johnson v. State, 102 So.2d 549 (1924)
Kaminski v. State, 63 So.2d 339 (Fla. 1952)
Kelly v. Stone, 514 F.2d 18 (9th Cir. 1975)
Knight v. State, 316 So.2d 576 (Fla. 1st DCA 1975)
Leon v. State, 396 So.2d 203 (Fla. 3rd DCA 1981)
Mackiewicz v. State, 114 So.2d 684 (Fla. 1959)
?
-iv-
PACL(S)
74
68
28,61,64
64
23,41,50
74
74,
22,37
69,73,76,78
74
62
22,27,28,35,3
69.76.77
23,27,35,39,4
22,26,42
21,37,53
53
74
61,62 ,64
69,77
74
38,44,48,53
30
o
TABLE OF CITATIONS
(Continued)
CASES
Maine v. Superior Court of Mendocino County, 438 P.2d 372
(Cal. 1968)
Manning v. State, 378 So.2d 274 (Fla. 1979)
Martinez v. Superior Court of Placer County, 629 P.2d
502 (Cal. 198i)
Mattox v. United States, 146 U.S. 140 (1892)
Meade v. State, 431 So.2d 1031 (Fla. 4th DCA 1983)
Melton v. State, 402 So.2d 30 (Fla. Ist DCA 1981)
Miller v. State of North Carolina, 583 F.2d 701 (4th Cir. 1978)
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)
Nichols v. State, 378 S.W.2d 335 (Tex. 1964)
Oliver v. State, 250 So.2d 888 (Fla. 1971)
Pait v. State, 112 S0.2d 380 (Fla. 1959)
-_- =
Pamplin v. Mason, 364 Feza 1 (5th Cir. 1966)
People v. Boudin, 457 N.¥.S.2d 302, (1982)
People v. Brocato, 169 N.W.2¢ 483 (Mich.App. 1969)
People v. Frechette, 155 N.W.2d 830 (Mich. 1968)
People v. Hogan, 647 P.2d 93, (Cal. 1982)
People v. Schiers, 96 Cal. Rptr. 330 (Cal.App. 1971)
People v. Yatooma, 271 N.W.2d 184 (Mich.App. 1978)
People v. York, 329 N.E.2d 845 (I11.App. 1975)
Peterson v. State, 376 Se.2d 1230 (Fla. 3d DCA 1979)
Pollard v. District Court of Woodbury County, 200 N.W.2d 519
(lowa 1972)
Reed v. State, 333 So.2d 524 (Fla. Ist DCA 1976)
-Ve-
PAGE(S)
22,23,26,33
21,24,31,35
24-26,30,31
36
62,64
22,23,37
76,77
22,37
22,25,39
62,63
62
35,63,64
63
- ‘
TABLE OF CITATIONS
(Continued)
CASES FAGE(S)
Rideau v. Louisiana, 373 U.S. 723 (1963) 21,27 . 33,37
Roleson v. State, 614 S.W.2d 656 (Ark. 1981) 62
Sheppard v. Maxwell, 384 U.S. 333 (1966) 37,41,48,50
Simpson v. State, 352 So.2d 125 (Fla. lst DCA 1977) 76
Singer v. State, 109 So.2d 7 (Fla. 1959) 23,24,31,37,
48,52,74
State v. Barber, 301 So.2d (Fla. 1974) 76
State v. Catanese, 368 So.2d 975 (La. 1979) 28,62
State v. Clark, 319 A.2d 247 (N.J.Super 1974), afi'd 33) A.2d 62,63
257 (N.J. 1975)
State v. Cuevas, 288 N.W.2d 525, (lowa 1980) 22
State v. Davis, 407 So.2d 702 (La. 1981)’ 61,62,64
State v. Descoteaux, 614 P.2d 179 (Wash. 1980) 62,63
State v. Edwards, 412 A.°1 “4 (Maine 1980) 62
State v. Goodson, 412 .©.2d 1077 ‘a. 1982) 38, 39,46-48,5
State v. Luna, 264 N.» %d 485 (S.". 1978) 76
State v. MorriSon, 557 S.. 4 445, (Mo. 1977) 49,54,56
State v. Parsons, 200 A.2d 340 (N.J. Super 1964) 62
State v. Perry, 142 N.W.2d 573 (Minn. 1966) 62-64
State v. Stiltner, 491 P.2d 1043 (Wash. 1971) 22,23,31,32,3
State v. Sutherland, 617 P.2d 1010 (Wash. 1980) eae
State v. Thompson, 123 N.W.2d 378 (Minn. 1963) 25
State v. Wilson, 202 S.E.2d 828 (W.Va. 1974) oo
Stewart v. State, 51 So.2¢ 494 (Fla. 1951) 74
Swain v. Alabama, 380 U.S. 202 (1965) 54,57
- vi -
CASES
TABLE OF CITATIONS
(Continued)
Taylor v. Kentucky, 436 U.S. (1978)
United States
United States
United States
United States
United States
United Stutes
United States
United States
United States
United States
United States
United States
Vv.
Vv.
Vv.
Vv.
Vv.
Vv.
Vv.
Brooklier, 685 F.2d 1208 (9th Cir. 1982)
Chagra, 669 F.2d 241 (Sth Cir. 1982)
Davis, 583 F.2d 190 (Sth Cir, 1978)
Garza, 608 F.2d 659 (Sth Cir. 1979)
Gerald, 624 F.2d 1291 (5th Cir. 1980)
- Hawkins, 658 F.2d 279 (Sth Cir. 1981)
- Mobley, 656 F.2d 988 (Sth Cir. 1981)
- Nell, 526 F.2d 1223 (Sth Cir. 1976)
- Rucker, 557 F.2d 1046 (4th Cir. 1977)
Turner, 558 F.2d 535 (9th Cir. 1977)
Williams, 523 F.2d 1203 (Sth Cir. 1975)
Vacendak v. State, 340 N.E.2d 352 (Ind. 1976)
Walsh v. State, 418 So.2d 1000 (Fla. 1982)
Williams v. State, 375 N.E.2d 226 (Ind. 1978)
Worthen v. State, 399 A.2d 272 (Md.App. 1979)
- vii -
\
- Kampiles, 609 F.2d 1233 (7th Cir. 1979)
PAGE(S)
21,33,68
23,37,39,46,
49,50
23
49,54,57
46
44,48,49,57
49,54,57
22
62,63
60,62,63
61,62
54
IN THE SUPRE“E COURT OF FLORIDA
ALLEY LIE DAVIS,
Appellant, :
Vv. CASE NO. 63,374
STATE OF FLORIDA,
Appellee.
DIITUAL BRIEF OF APPELLANT
I PRELIMINARY STATEMENT
Appellant, ALLEN LEE DAVIS, was the defendant in the trial court and
will be referred to in this brief as appellant or by his proper name.
Appellee, the State of Florida, was the prosecution, and will be referred
to as the state. The record on appeal will be referred to by use of the
symbol "R". The transcripts of the pre-trial, jury selection, trial,
penalty, and sentencing proceedings will be referred to by use of the
symbol “T". All emphasis is supplied unless the contrary is indicated.
II STATEXENT OF THE CASE AND FACTS
Allen Davis was charged by indictment returned May 27,°1962, with three
counts of first degree murder, in the deaths of Nancy, Kristina, and
Katherine Weiler (R-55-57). The Public Defender was appointed to represent
him (R-3).
On August 11, 1982, the defense filed a motion for change of venue,
asking that the trial be moved from Duval County (R-205-223). After a
hearing on August 17, 1982, the trial court, over defense objection, deferred
ruling on the motion until an attempt had been made to select a jury in
Duval County (T-271-72).
ee Yo
C (
On September 17, 1982, the defense moved to suppress certain statczents
and admissions allegedly made by appellant to police officers (R-237-38).
After a hearing on November 8-9, 1982, the trial court denied the moticn
to suppress these statements (R-259,268).
On Septamber 21, 1982, the Public Defender's Office filed a certifica-
tion of conflict ani motion to withdraw fram representation of appellant
(R-239). The trial court granted the motion to withdraw on October 5, 1982,
ans appointed Frank Tassone, Jr. to represent appellant (R-244, T-307).
Tnirce days later, the Public Defender's Office asked to re-appointed,
as the claimed conflict had turned out not to exist ( The trial
court Ceclined to re-appoint the Public Defender's Office (R-247). On
January 7, 1983, Mr. Tassone filed a Notice of Adoption of Previously Filed
Motions, in which he adopted, inter alia, the motions for change of venue
and for individual and sequestered voir dire which had previously been filed
by the Public Defender's Office (R-269).
Immediately prior to jury selection on January 31, 1982, the trial
court denied the defense's motion for individual and sequestered voir dire
(R-287, T-532). A jury was empaneled, and the case proceeded to trial
before Circuit Judge Major B. Harding on Raieunry 1-4, 1983.
The state presented thirty-four witnesses, including John Weiler,
husband and father of the victims, who testified that a Nikon 35 millimeter
camera was missing from his hame (T-840-41); Dr. Bonafacio Floro, the
~ ,
Due’ to th> anticipated length of this brief, and since appellant is net
challenging the sufficiency of the evidence on arreal, the fol lowi
summary is not intended to be a complete statement of the evidence. The
facts of the case, as they relate to the particular issues faised, will he
set forth in the appropriate section of argument.
-2-
ie
4 (
assistant medical examiner, who determined that Nancy Weiler dicd as a
result of multiple blunt impacts to the —_ (T-975); Kristy Weiler had
been shot in the head and chest (T+997); and Kathy Weiler had been shot
in the lower back, and had also received several lacerations of the head
(T-1010-12); police officers Charles Kessinger, Derry Dedmon, Ray Snith,
and Leroy Starling who testified with respect to statements allegedly
mace by appellant, in which he adnitted being in the Weilers' house,
that he did not remember everything that happened there, and that he
"could have” taken his father’s gun with him [See Issue IV, infra); police
officers, including Kessinger and others, who testified with regard to
items of physical evidence seized from appellant, including a rope taken
from the back of his truck (T-1067-68) and articles of clothing taken from
his apartment (T-1169); Donald Davis, appellant's father and the next-door
neighbor of the Weilers, who testified that he told Detective Kessinger
that his .357 Ruger Black Hawk pistol, which he had placed on top of his
refrigerator a week or two before. the murders, was missing (T-1262-70);
Gloria Lee, Angelo Giovagnoli, and Ginny Baumgartner, neighbors of the
Weilers who testified that they saw appellant walking in the neighborhood
around the time of the murders; Paul Doleman, a forensic serologist,
who testified that blood found on one of appellant's boots and on one of his
shirts was not consistent with appellant's blood but was consistent with
Nancy Weiler's blood (T-1429-31); David varniment, an FDOLE firearms
examiner, who examined the metal fragments of five semi-jacketed bullets
which had been found in the Weiler hame, and determined that they were most
consistent with having been fired fram a .357 magnum Ruger Black Hawk,
Single-action revolver (T-1483-84); Warniment also examined several other.
metal fragments found at the scene of the murders and determined that
o3«
~~
4
C (
these fragments were consistent with once having been part of a Ruger Black
Hawk single action revolver (T-1503); Richard Padon, a friend of appellant's,
who testified that he drove appellant to his father's house for the purpose
of camitting a burglary in the neighborhood, and that when he later picked
appellant up, he had three paper bags with him, one of which contained a
35-millimeter Nixon camera (T-1520-21, 1529-31); Mary Lynn Henson, a
microanalyst with the FDLE, who stated her opinion that the piece of rope
with which Kristy Weiler's wrists were bound was at one tim attached to
a piece of rope seized from appellant's truck (T-1582); and Donald Havekcst,
a neutron activation analyst with the FBI, who stated his opinion that the
bullet fragments found in the Weiler home came fram the same source of
lead as the eighteen live cartridges contained in Donald Davis' ammunition
box (T1603).
Tne jury returned verdicts finding appellant guilty as charged on
all three counts of first degree murder (R-301-03, T-1770).
The penalty phase of the trial was conducted on February 9, 1983.
The jury recommended imposition of the death penalty on all three counts
(R-308-10, T+1849-51).
On March 2, 1983, the trial court adjudicated appellant guilty on
each of the three counts (R-316), and imposed three sentences of death
(R-218-20). The court, found, as aggravating circumstances, (1) that the
crimes were committed while under sentence of imprisonment (referring to
the fact that appellant was on parole), (2) that appellant was
previously convicted of prior violent felonies, (3) that the crimes were
committed during the course of a burglary, (4) (as to the murder of Kathy
Weiler only) that the crime was committed for the purpose of avoiding arrest,
(5) that the crimes were especially heinous, atrocious, or cruel, and (6)
that the crimes were committed in a cold, calculated, and premeditated manner
(R-324-28). ‘The ---->1 court found no mitigating factors (R-323-24).
. wee’ UL @ppe. «/t' “iled on March 3, 1983 (T-331)}.
i
ILI ARGUMENT
ISSUE 1
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING
TO GRANT APPELLANT'S MOTION FOR CHANGE OF VENUE
A. The Nature of the Pre-Trial Publicity
Allen Davis was placed under arrest for the Weiler murders in the
early morning of May 13, 1982 (R-1-2, T-1078). The probable cause state-
ment in the arrest report includes the follewing remarks:
Allen Lee Davis admitts (sic) being at the
victims home at approx. time of their death,
8 P.M. 11 May 1982. Allen Lee Davis failed
a polygraph examination conducted by the Jax.
Sheriff's Office.
(R-2).
On August 11, 1982, the defense filed a motion for change of venue,
which contained the following allegations:
1. The Defendant was indicted and charged with three
counts of First Degree Murder.
2. The death of the Weilers and the arrest of Allen
Lee Davis has been subjected to extensive media
coverage via television, radio, and newspapers in
the Duva] County area.
3. The State, through its agent, the Jacksonville
Sheriff's Office, improperly released to the news
media, which was disseminated in the Duval County
1
While it is true that Davis admitted being in thg-Weiler home at around
8:00 P.M., and that he did not recall everything that happened there,
he did not admit to committing the murders or being aware of them (see
T-1061-62,1200,1214). Therefore, it appears that Detective Kessinger
juxtaposed Davis' admission of being in the house at 8:00 with someone
else's (presumably the medical examiner's) conclusion about the time
of death. [Dr. Floro testified at trial that the time of death was bet-
ween 6 P.M. and midnight (R-964)]. Accordingly, the statement in the
arrest report subtly implies that Davis admitted to an awareness of the
time of death, and thus to an awareness of the murders. This potentially
misleading implication was compounded . adred-fold in a television
newscast which stated, inter alia, that "[Davis] was in the presence
of the victims at the time of their death and he admits to this and
he has also failed the polygraph test" (T-145).
C : (
area, that Allen Lee Davis was arrested after he
failed a polygraph examination. ~
4. The State, through its agent, the Jacksonvilie
Sheriff's Office, improperly released to the news
media, which was disseminated in the Duval County
area, Allen Lee Davis's prior criminal record as well
as the fact that the Defendant is currently on felony
parole.
5. The State, through its agent, the Jacksonville
Sheriff's Office, improperly released to the news
media, which was disseminated in the Duval County
area, statements of Allen Lee Davis to representatives
of the Jacksonville Sheriff's Office, placing him at
the scene of the murders at the time the victims
were alleged to have been killed.
6. The State, through its agent, the Jacksonville
Sheriff's Office, improperly released to the news
media, which was disseminated in the Duval County
area, certain aspects of the police investigation, to
wit: fiber analysis and the searching of local waters
for a weapon.
7. The State, through its agent, the Jacksonville
Sheriff's Office, improperly released to the news
media, which was disseminated in the Duval County
area, certain evidence relating to a gun belonging
to the Defendant's father being reported missing,
which was consistent with the weapon or discription
of the weapon involved in the death of the Weilers.
8. The State, through its agent, the Jacksonviile
Sheriff's Office, released copies of the Arrest and
and Booking Report to the news media at first appear-
ance court wherein the information regarding the
polygraph examination was contained.
9. The Defendant's arrest, as well as subsequent court
appearances by the Defendant or his counsel, have been
reported by the local news media to the public in the
Duval County area.
10. The knowledge of the case and of the Defendant
as reported in the news media is widespread in Duval
County. The potential for prejudice in the community
as a result of such information or the exposure to
such inadmissible evidence or testimony is great.
(R-205-06).
N
C. C
Appended to the motion was an affadavit of Assistant Public
Defender Anthony Zebount, stating that he personally observed Sheriff's
Office employees tendering copies of the arrest report, which contained
references to Davis' having failed a polygraph and to his statements
placing him in the Weiler home, to television and radio personnel
at Davis’ bond hearing (R-208). Also included were affadavits of
fifteen Duval County attorneys, who stated their opinions that Allen
Davis could not obtain a fair and impartial jury in the county as ‘
result of extensive newspaper publicity and T.V. and radio coverage
of the case, and specifically the exposure of members of the community
to the inadmissible evidence of Davis’ having failed a polygraph
examination (R-209,210,211,212,213,214,215,217,218,220,223), and his
prior record of violent erties (R-213,217,218,219,223), and to the
dissemination of statements concerning Davis’ presence at the crime
scene at the time of the offense (R-222).
At the hearing on the motion, the defense introduced an audit
report showing the daily circulation of the Jacksonville newspapers.
These figures were: Times-Union-115, 666; Journal-43,600; Saturday-
132,279; Sunday 146,423 (T-128-29). Certain eniupepet articles were
introduced into evidence as Defendant's Exhibit 4 (t-130).
The ‘Jacksonville Journal of May 13, 1982 contained an article
headlined "Suspect charged in triple murder", which included a photo-
graph of police and funeral home employees removing the bodies of
Mrs. Weiler’ and her daughters from their home (R-50). The article
stated,inter alia:
1.5
The exhibits introduced at the change of venue hearing will be trans-
mitted to this Court. Two of the newspaper articles contained in exhibit
4 can also be found at pages 50-51, 53-54 of the record.
efe
Polic( aid records indicate Davis, a ( p-
yard Weader, was arrested in 1965 at Bangor,
Maine, for assault and in 1966 in Baltimore, Md.,
for involuntary manslaughter with a vehicle.
Duval County Circuit Court records show he was
sentenced to a total of 15 years here in 1973
after being convicted of two robberies and an
attempted robbery. It could not be determined
today if Davis served any time in prisonon those
convictions.
(R-50, see T-130).
The suspect agreed to take a lie detector test
and tailed it, officers said. They declined
to reveal the test questions.
Homicide Detective Charles Kesinger said Davis
told him he had seen Mrs. Weiler early Tuesday
evening, the time members of the Duval County
Medical Examiner's Office believe the killings
occurred.
(R-51, see T-130-31).
The Journal of May 13, 1982 also contained an article headlined
"Explaining girl's slaying a tough job for teacher." The article dealt
with the trauma faced by Kristy Weiler's fifth grade teacher, in breaking
the news of Kristy's murder to her classmates. It read, in part:
Kristina, who was called "Kristy", was a
bouncy, "cheerleader type" who enjoyed
doing handicrafts with her mother, Ms.
Robichaud said. She had been selected by her
classmates as the March "Supercitizen,"
said school Principal Marilyn Duncan.
Yesterday would have been Kristy's 10th birth-
day. She had planned a birthday party at
her home after school, and her class was
taking a field trip to the zoo.
"They were having a disco party for her
birthday. The invitations were so cute,
she wrote them herself and said, ‘Be sure
to wear your disco clothes.' Eddie (a
classmate) was so upset because he forgot
his dancing shoes," Ms. Robichaud said.
(Defendant's Exhibit 4, p. 4).
a ee ae
—_—¥
)
e.- (
“We did not tell that Kristy was the one
that died,” Mrs. Duncan said, adding that
the children were told the birthday party
had been canceled because of a death in the
family “so these children wouldn't go over
and run right into the tragedy and.all that
would be connected with it."
Ms. Robichaud said Kristy's classmates did
not seem satisfied with the explanation.
"They wanted to know who had died and I said,
"I don’t know.’ They wanted to know if the
party would be held.
“They said, "Why is your nose so red? Why
have you been crying? They know something
is wrong, and I hope the parents are under-
standing abcut it. I feel sorry for those
parents,” Ms. Robichaud said.
But she knows she will have to’do some ex-
plaining to her class today.
"I'm going to be very honest with them. They're
going to be very scared, horribly scared. They're
going to want comforting and they're going to
want to know why it happened.
“I'm going to try to make it a normal day...
with a lot of silent meditation."
(Defendant's Exhibit 4, p. 5).
The Times-Union of May 13, 1982 reported the reaction of Dr.
Bonafacio Floro, the assistant medical examiner:
When Floro left the house yesterday after-
noon, he wiped tears from his eyes and brushed
asiie reporters’ questions until he bad made a
preliminary examination. j
He was visibly shaken.
"It was because there were kids involved and
the way they were killed,” Floro, himself
the father of three children, a girl, 12,
and two boys, 4 and 7, said later. ~
"You get emotional for anybody who had kids
that died. They're so innocent; they did not
know what was going on," he said.
(Defendant's Exhibit 4, p. 6).
. se 9 i
4 (
The Times-Union of May 14, 1982 contained an article headlined
“Welder held in slayings of mother, 2 daughters," featuring a large
photograph of Allen Davis in handcuffs (R-53, see T-131). The story
. ’
begins "A 37-year old welder who was paroled from prison in 1979 ...
(R-53). Davis is described as a 6-foot 340-pound individual aicknamed
"Tiny" (R-53). The article continues:
Circuit Court records showed that Davis
Pleaced guilty in 1973 to armed robbery,
attempted armed robbery and carrying a
concealed firearm, and that Circuit Judce
R. Hucson Oliff sentenced him to 15 years
in prison.
Davis was paroled Sept. 25, 1979, after
serving most of the six years at Doctors
inlet Read Prison in Clay County, said David
Skipper, a spokesman for the state Department
of Corrections in Tallahassee.
He was paroled because he had a clean disci-
plinary record, good progress reports and
showed a favorable prison adjustment, Skipper
said.
Court officials said Davis also was convicted in
1966 in Baltimore of involuntary vehicular man-
Slaughter for which he was sentenced to three
years.
And in 1961, Davis was convicted in Bangor,
Maine, of assault and battery and was sentenced
to six months to three years. Fr
(R-53-54, see T-131-32) ,
Davis came under suspicion about eight hours
after the bodies were found at 11 a.a. Wednesday,
police said? .
He was estioned by homicide detectives Wednesday
night and voluntarily submitted to a lie-detector r
test, said homicide Lt. jim Suber. He was arrested
— ES — ---
and booked about ? a.m. yesterday.
eM ;
C (
Davis’ pickup truck, which was found near the
Weilers' house, was examined for physical evi-
dence.
“We got this thing under heavy investigation,"
Suber said yesterday. “We're trying right now
to tie some loose ends. We haven't found the
gun, and we can’t comment on the evidence we have."
(R-54, see T-132).
On May 18, 1982, the Jacksonville Journal published an article
headlined “Alligator impedes probe." This article concerned police
efforts to recover the murder weapon, a pistol. Divers were searching
several bodies of water, and there were apparently allisators in the
locations being searched. Homicide detectives said they didn’t know.
anything about alligators:
"I'm not verifying the information," Lt.
Jim Suber said. "We're searching four
or five bodies of water. This is just one
more place." ,
Suber said any comments could hinder the
investigation and that if anything were
printed, a guard would be placed in the area
being searched to prevent anyone from tampering
with evidence that might be found there.
“Whoever knows where that gun is, knows where
the water is" he said.
"You can never know for sure what people will do.”
Suber said his fears were not that another
Suspect might be at large, but that relatives
or friends of Allen Lee Davis, the 37-year old
Shipyard welder charged with the triple slavincs
could try to prevent investigators from discovering
evidence.
(Defense Exhibit 4, p. 12, see T-133).
The defense called as a witness Steven Crosby, assistant new.
director at WIXI Television, Chunne! S, who presented “dives” ccide
taped segments which appeared on the air) from newscasts concerai:
the Weiler murders (T-138-42). One of these newscasts announced:
Other
COM™ENHLAry:
C f°
Thirty-seven-year-old Allen Lee Davis booked )
into the Duval County Jail early this morning; j
he's charged with triple murders of Nancy
Weiler and her two children, ten-year-old
Christina and five-year-old Kathy.
Early in the investigation, attention focused
on this man, Allen Lee Davis, the son of the /
wWeiler's next-door neighbor. After questioning J
Davis, police found substantial evidence in both 4
the suspect's truck and, upon investigation cf 4
the house, linking him to the crime. aw
a ae CES . y
He was in the presence of the victims atthe tiné 5
of their death and he admits to this gad he-fas"
alio tailed the polygraph test.
According to the police, Davis agreed to be inter-
viewed at the Jacksonville Sheriff's Office. This
is not his first brush with the luw. Police say he
Was out on parole and has a lengthy criminal record.
He is scheduled to be arraigned later this morning.
Jeti Silverstein, Channel 4; Eyewitness news.
(1-145).
channel 6 broadcasts carried the tollowing information an
The neighborloud in this community ds a very clore-
Knit group. Tue only word is horrible. That is the
waly word. Things like this don't happen in a nice
neighborioud an! this is a nice neighborhood and thev
were nice people.
Twelve-yeat-old blank blany was invited to the birth-
day patty planned for Cristina. She would have been
ten yeats old. I! got off of the bus and I didn't
want Co Bellese it at first. fe's Kind of senseless
but 3 foutd out it was | crime.
(i-be5).
Ths cite was faiied wating ty. Be ts the ton @i the
cf the Wetton i” next-tout mesehbet. Folice sa. they
foun «eee Simiseat te tat red $e bing the wticts
ef She metbes « hide $o the Cheri ties sicker. thes
Paths Mamie. $2 5 oe tas oe Sez et yet bees fear,
ee 6 6 ems Cee sp emme ee oe
‘
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Davis today has been charged with murder at 3:00
o'clock this morning, after he flunked a lie
detector test. Davis had already been convicted
of assault and disorderly conduct. He was out on
parole for armed robbery. Fellow shipyard workers
and friends give a completely different picture
of Davis. They say he isa good natured man who loves
children, a good co-worker. They say they can't
believe he is a man who could be guilty of comuittin:
three murders.
Bill Palmer worked with Davis two years says he's
okay, he loved to sit down and talk about hunting,
fishing and back in Maine, that's where he's from.
I can't believe chat this happened. I can't believe
it's true. I am sick about this whole thing. Since
leaving the North Florida Shipyard in the fall, friends
say Davis worked in other shipyards. They say he
was laid off a few weeks ago. Davis shared his Arlirg-
ton apartment with Mary Collins. It's unbelievable.
I can't believe it. 1 really can't. Especially when
it comes to children, I can't believe he would do
something like that. I really don't believe he did
ic.
John Weiler is staying with friends after flying back
from Pittsburgh yesterday. -He said he is trying to
make funeral arrangements for his family so brutally
taken away from hin.
Wynn Farley, Cha:nel 4 Eyewitness News.
(T-146-47).
There might have been some doubt in people's ginds,
there was no doubt in our mind now that we have the
right suspect. Lt. Suber would not comment on the
circumstances but here's what we know of evidence from
the individuals close to the investigation: During
several hours of questioning in the interrogation room,
the police said Davis told them he was in the Weiler
hone the night of the murders but also said he had
a lapse of memory. The detective that made up the
arrest report wrote Allen Davis stated he could not
remember everything that happened while he was at the
victims’ home.
The Duval County Medical Examiner put the time of death
somewhere between 7:30 and 9:00 o’clock.® John Weiler
told pelige he talked with his wife on the phone at
a quarter of 7:00 while she was preparing dinner.
A neighbor said she called the Weiler home at 8:15
C C
and there was no answer. Davis, himself told the
police he was in the house around 8:00 o'clock. Police
first questioned Davis as a possible suspect witness
when his father, the Weiler's next-door neighbor,
reported his gun missing.
The petite believe the gun to be the same kind that
the suspect used. They think it was a .257 caliber
revolver like this one as fragments of the wood fron
the murder weapon were found by the victims which
were pistol whipped.
Sources close to the investigation say the pistol was
a Black Hawk .357 Magnum. The insignia was all that
was found at the scene that would make it the same
type gun Davis’ father reported missing. The whereabouts
of the actual murder weapon remains a mystery.
Among evidence taken from the truck was nylon cord
believed to be identical to one of the cords used
to tie up one of the children. Detectives secured
the scene at the time and Davis' apartment, looking
for physical evidence. Their findings were brought
here to the Jacksonville Crime Lab where they will
look for fibers, hair and do ballistic tests.
I think we have a very significant case against him at
this point and I hope to have even a better case at
trial time based on physical evidence and witnesses.
Davis’ attorney said he will ask the Court to move
the case out of Jacksonville. We predict it wili
be a very sensitive case.
Denny Silverstein, Channel 4 Eyewitness news.
(T-147-49) .
The video tape next depicted Allen Davis, handcutfed, wearing a
baseball cap, and flanked by two officers, apparently being transported
to the Duval County Jail during the night time (T-147).
The Channel 4 stories concerning the Weiler murders were aired
at noon, 6:00 p.m., and 11:00 P-™., and some may have appeared on more
than one newscast (T-142,150). According to an Arbitron survey covering
the period from April 28 - May 25, 1982, Channel 4 News had a potential
@lé<
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weekday viewing audience” of 55,000 households or 72,000 persons for
the noon broadcast, 109,000 households or 174,000 persons for the 6:00
p.m. broadcast, and 56,000 households or 92,000 persons for the 11:00
p.m. broadcast (T-150-51). Crosby indicated that this survey would
include Duval County, and the surrounding counties of Baker, Bradford,
Clay, Columbia, Nassau, and Putnan.”
Gerry Howard, news director of WJKS-TV, Channel 17, presented four
taped news broadcasts concerning the Weiler murders. ie estimated that,
altogether, these stories would have been aired a dozen or more tines
(T-157,163). The third newscast, which was aired on May 13, 1982 az
6:00 p.m., again at 11:00 p.m., and on Newswatch 17 update the following
morning (T-161, see T-157), related the following information:
Davis was charged with the murders early this
morning after four hours of interrogation.
Police said he voluntarily submitted to a lie
detector test and failed. Other evidence includes
rope found in the batk of pickup which may have
been used to tie the hands of Kathy Weiler who
was found shot to death. Police say Davis who
was denied bond admitted being in the house
around 8:00 p.m. Wednesday night.
e
Davis had been cpnvicted twice and released from
Raiford in 1969.
(T-162). : Ms
- . . . . . .
2
Crosby detined his potential viewing audience” as the number of house-
holds which, there would be sed reason to believe, would have televisicn
sets tuned to Channel 4 WS” «| a particular time (T-151).
3
The population of Duval County, g@ccording to the 1950 census, was
570,981. The combined populatiof oi the six other counties was 221,206.
According to voter registration statistics submitted by the defense, there
were 251,304 registered voters (and thereiore 251,304 potential juror.)
in Duval County as of August 4, 1982 (T-126).
“
This date is incorrect. Davis was paroled from the Florida Prison svysten
in 1979. (Sve R-325, T-1785). The child whose hands were bound was Kristy
Weiler.
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Richard Padden? said he had spoken to Davis around
6:00 p.m. Tuesday might just about two hours before
the murders were committed. He shook my hand and
told me any time I needed anything, give him a
holler. Did he indicate to you why he was in such
a good mood? No. Looked like to me he had been out
working. Police are searching the waters in back
of the Weiler home in hopes of finding the murder
weapon.
(T-162-63).
Howard indicated that approximately 20,000 people see the 6:00
P-m. newscast on Channel 17, and approximately 19,000 people see the
11:00 p.m. newscast (T-159-61). Channel 17's signal encompasses a
five-county area, including Duval, Clay, St. John’s, Baker, and
Flagler” (T-1°5).
Irene Shubert, administrative assistant to the news desk at WTLV-
TV Channel 12, presented several video taped news segments on the Weiler
murders. The first story was aired at toon on May 12,°1982, and included
the following comment (which was repeated during the 6:00 p.m. broadcasi):
The neighbors were in total shock, completely
wiped out. We never had anything happen before
like this. I have been in the Military but not
next door -- the murders came on the morning eve
of the celebration that was the birthday of nine-
year-old Christy Weiler.
(T-169).
On “Good Morning, Jacksonville” on May 13, an information officer
5
RicWard Padon testified at trial that he drove Davis to Davis'
father's house to commit a burglary in the neighborhood; that he later
picked Davis up; and that Davis had three brown paper bags, one of
which contained a Nikon camera (T-1518-35). Padon did not mention
any of this to police until September, because he did not want to get
involved (T-1535).
6
The combined 1980 population of the four surrounding counties is
144,557, compared to Duvai's $70,981.
=)
1
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from the Sheriff's Department was shown making the statement:
Time of death, according to Medical Examiner, was
approximately 5:00 p.m. At that porticular tire,
he was in the company of victims.
T-170).
Another Channel 12 newscast, apparently aired on June 9, 1932
(see T-173), conveyed the following information to viewers:
- there were not just three deaths on May 11.
Mrs. Weiler was pregnant at the time. The
pregnancy is early and it is unlikely another
murder charge will result.
The police now have three witnesses that can
pin down Davis’ whereabouts on the dav of the
murders. One neighbor apparently spotted Davis
near where the murders occurred with a gun in
his hand. Neither the police nor the Public
Detender or prosecutor would have any comment
or action.
Assistant State Attorney Raiph Greene would
not comment on Davis’ case but he would talk
about the use of hypnosis testimony in court.
We're not talking about hocus pocus, you know,
of a carnival show; it's well recognized,
well thought of technique to help a person
remember.
But the case against the unemployed shipyard
worker is growing more complicated, one that the
defense feels would have to be decided out-
side of Duval County.
(T-172).
In July, 1982, Channel 12 broadcast an editorial piece by Allen
Rothstein:
’
The murder occurred while Davis was out on parole.
Alien Lee Davis is accused of killing a Jacksonville
mother and her two children while out on parole for
armed robbery this year. I think that he needed to
serve a little more time than three years. I mean,
that was a child that he first killed. He was in court
today trying to stop the prosecution from using an
aileged conviction but he has not yet been tried for
the second trial -- (inaudible) parole and probation
elf
people are letting people out on the streets too
early, that he's got a criminal gut there on the
street. -"
Mistakes are made but -- we cannot predict what a
person will or will not do. We try to make the
best judgment we can based on the information that
we have (inaudible). Why should I agonize over
a sentence if they're going to take them over there
in due time and re-sentence them, why don't we try
them and say you all do what you want to with them?
Channel 12, Allen Rothstein.
(T-173).
According to an Arbitron survey, there are 169,000 households in
the WILV viewing area. The estimated viewing audiences for the news
broadcasts are: Good Morning, Jacksonville - 10,000 households; noon -
15,000; 6:00 p.m. - 40,000; and 11:00 Pp-m. = 33,000 (T-174). Stories
are sometimes broadcast on more than one news program (T-167). The
Station's major market is Duval County; its signal reaches into south
7
Georgia and Clay, Nassau, and Baker Counties.
Arguing in support of the motion for change of venue, defense
ccunsel asserted that the extensive pre-trial publicity in this éase
was irreparably prejudicial in that it exposed the Duval County comn-
unity to 1) inadmissible evidence of Davis' prior criminal record,
including convictions of manslaughter, two armed robberies, and attempted
robbery (T-163,136,187); 2) inadmissible evidence that Davis was on
parole at the time @ the wurders (T-184,185,186); 3) inadmissible
evidence that Davis: to»! a polygraph and failed it (T-183,184,185,186,137);
4) Davis’ statements (tie admissibility of which had yet to be determined)
to police, placing him in the Weiler home at the time the medical exeniner
believed the murders occurred, and claiming that he had a lapse of
memory while in the house (T-184,185,186,187); 5) ex parte statements of
7
The combined 1980 population of the latter three counties is 115,235,
- 18 -
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evidence indicative of guilt which the police had assembled, including
the facts that a handgun belonging to Davis’ father was missing (T-186),
that a cord found in Davis’ truck matched the cord which bound Kristy
Weiler's wrists (T-186,187), and that police had found three eyewitnesses
who could pin down Davis' whereabouts, one of whom saw him in the
neighborhood with a gun in his hand (T-187); 6) statements by state off-
icials expressing their certainty of Davis" guilt; that they had the
right suspect, and that they had a "very significant case" against hin
(T-186); 7) statements by police to the effect that Davis’ friends or
relatives might interfere with their efforts to find evidence; specifically
the missing handgun (T-185); 8) inflammatory commentary strongly tending
to evoke community sympathy for, and identification with, the victims
(and, concomitantly, prejudice against the named suspect, Davis), in-
cluding an article about Kristy's schoolteacher having to break the news
of her death to her classmates (T-184), newscasts emphasizing the reaction
of the Weilers' close-knit, upper-middle class, family-oriented neigh-
borhood to the horror and senselessness of the crime (T-186,187); references
to Mrs. Weiler's being pregnant at the time of her death (T-187); references
to Kristy's tenth birthday party which was to have been held the next
day (T-184, 186), and the medical examiner's emotional reaction as he
left the dite (T-184); and 9) a telecast denouncing parole authorities
for releasing prisoners back onto the streets to commit crimes, and
referring specifically to Allen Davis as one who "needed to serve a little
more time” and who subsequently murdered a child (T-137-88). J
Defense counsel argued that, as a result of these highly pre-
judicial disclosures by the media, and by the police through the mecia,
“the damage has already been done, [and] that in order to insure that a
e He
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fair trial is had, the Court has to change the venue" (T-223). The trial
court instead chose to defer ruling on a change of venue until an attempt
to select a jury in Duval County had been made (T-271). The defense
objected, and reiterated its position that the case should be meved to
another jurisdiction at this time (T-272).
Jury selection commenced on January 31, 1983. The trial court
granted each side three additional peremptory challenges, and denicd
the defense's motion for individual and sequestered voir dire (7-532)
[See Issue II, infra]. During voir dire, at least nine prospective
jurors indicated that they had some prior knowledge of the case*
from television, radio, newspapers, or word of mouth. Early in the
voir-dire, a prospective juror (unidentified in the record) said "1
must honestly say I read the paper rather thorougily..." and indicated
that he was not sure at that point if he could ve open-minded or not
(1-651). A second unidentified prospective juror said
the same applied to her (T-561). Prospective juror Lane said she
knew about the case from watching televison, knew in her heart how
she felt about it, and had already more or less made up her mind (T-644-_
46) [See Issue III]. Prospective juror Richardson (who served on the
jury) knew something about the case from the newspaper and TV (T-651).
Prospective juror Price, who had heard something about the case (T-763),
when asked by the prosecutor whether she could vote for the death
penalty, stated:
Well, the way it was expressed to me, sir,
8 °
These potential jurors included Richardson (T-599-600, 651), Lane (644-
46), Stanley Johnson (T-599, 646-47), Jackson (1-601-02, 650-51), Cassidy
(7-564,625, 636-37), Griswold (1-609), James Johnson (1-677, 685-89),
Robb (T-770), and Price (T-763, see T-741).
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these people get out on probation and they
done these horrible things, that's the .
only question that I would say about
capital punishment.
(T-741).
Three of the prosepective jurors who had some prior knowledge of
the case, Richardson, Jackson, and Griswold, ultimately served on the
jury (T-774, 1770-71, 1851-53).
B. The Nat
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