# Petition for Writ of Certiorari — Allen Lee Davis v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1292%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 473 U.S. 913 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. 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! ‘ . 4 3 at. « *, OE eo m2 ; ' Sa ‘> Sy 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 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. 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 ‘Ja [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1292%3A2. Public record. Not legal advice.