Opposition Brief — Allen Lee Davis v. Florida

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.y RRGINAL Pree te

NO. 84-6520 (3)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

ALLEN LEE DAVIS,

Petitioner,

vs.

STATE OF tLURIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

JIM SMITH

ATTORNEY GENERAL

GREGORY G. COSTAS

ASSISTANT ATTORNEY GENE?AL

DEPARTMENT OF LEGAL AFFAIRS

THE CAPITOL

TALLAHASSEE, FLORIDA 32301

(904) 488-0290

COUNSEL FOR RESPONDENT

RECEIVED

APR 19 1995

Otrive UF The Cenk

SUPREME COURT, US.

**

QUESTION PRESENTED

Respondent objects to Petitioner's statement of the

question presented as being argumentative contrary to the

provisions of Rule 21.1(a), Rules of the Supreme Court of

the United States, and consequently re-states said question

as follows:

WHETHER THE FLORIDA SUPREME COURT'S

AFFIRMANCE OF THE TRIAL COURT'S DENIAL

OF PETITIONER'S MOTION FOR INDIVIDUAL

AND SEQUESTERED VOIR DIRE GIVES RISE TO

A CLAIM, UNDER THE SIXTH AND FOURTEENTH

AME™DiriENTS TO THE UNITED STATES CONSTI-

TUTION, 1"AT HE WAS DEPRIVED OF HIS

RIGHT TO B. TRIED BY A FAIR AND IMPARTIAL

JURY.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF CITATIONS

PRELIMINARY STATEMENT

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

HOW THE FEDERAL QUESTION WAS RAISED AND DECIDED BELOW

REASONS WHY THE WRIT SHOULD NOT BE GRANTED

QUESTION PRESENTED:

WHETHER TEE FLORIDA SUPREME COURT'S AFFIRMANCE

GF THE TRIAL COURT'S DENIAL OF PETITIONER'S

MOTION FOR INDIVIDUAL AND SEQUESTERED VOIR

DIRE GIVES RISE TO A CLAIM, UNDER THE SIXTH

AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, THAT HE WAS DEPRIVED

OF HIS RIGHT TO BE TRIED BY A FAIR AND

IMPARTIAL JURY.

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

-ii-

TABLE OF CiTATIONS

CASES Page

Barclay v. Flerida, » 103 $.Ce. ___,

5 L.€d.2d 113%, 189 (1983) 9

Cape v. Francis, 558 F.Supp. 1207, 1221 (M.D. Ga. :

1953), affirmed, 741 F.2d 1287 (llth Cir. 1984) 7

Davis v. State, 461 So.2d 67, 69, 70 (Fla. 1984) 1,4,6

Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92

L.Ed. 1683, 1687 (1948) v

Haith v. United States, 231 F.Supp. 495, 498 (E.D.

a. » affirmed, 342 F.2d 158 (3d Cir.

1965) 8

Jackson v. Amaral, 729 F.2d 41, 45 (Ist Cir. 1984) 7,9

Jones v. State, 343 So.2d 921, 923 (Fla. 3d DCA

1977), cert. denied, 352 So.2d 172 (Fla. 1977) 8

Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171,

3 L.£d.2d 1750 (1959) 8,9

Michigan v. ee: U.S. » 803 S.Ct.

-Eed.2d T201, 12135 (1983) 6,7

Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031,

589 (1975) &

Piepenburg v. Cutler, 649 F.2d 783, 790 (10th Cir.

1951)— &

Ristaina v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47

L.Ed.2d 258 (1976) 8

Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 /

“Lied. 2d 341 (1974) 12

State v. David, 425 So.2d 1241, 1247 (La. 1983) li

State v. Goodson, 412 So.2¢ 1077 (La. 1982) 6,7,1¢

State v. Monk, 454 So.2d 421, 425 (La. App. 3d

Cir. 1984) 11

Stone v. State, 378 So.2d 765, 768 (Fla. 1979),

cert. denied, 449 U.S. 986, 101 S.Ct. 407,

66 L.Ed.od 2

50 (1980) 8

Taylor v. United States, 366 F. ag th 32, 144 n. 25

(E.D. Fa. 197%), affirned 21 P. 24 1399

(3¢ Cir. 1975) 8

United States v. Brunty, 701 F.2d 1375, 1378 (llth

Cir. 1983) 8

United States v. Davis; 583 F.2d 190 (Sth Cir. 1978) 5-6,7,9

United States v. Hawkins, 656 F.2d 279, 283 (5th Cir. Te

>

-iii-

United States v. Hurley, 746 F.2d 725, 727 (11th Cir.

United States v. Reeves, 730 F.2d 1189, 1194

(St r.

OTHER AUTHORITIES

Rule 17.1.(b), Rules of the Supreme Court of the

United States

Rule 21.1.(a), Rules of the Supreme Court of the

United States

28 U.S.C. §1257(3)

§921.141, Florida Statutes (1983)

Fed.R.Crim.P. 24(a)

-iv-

om no NH

PRELIMINARY STATEMENT

Allen Lee Davis, the criminal defendant and appellant

below will be referred to herein as Petitioner. The State

of Florida, the prosecution and appellee below will be

referred to herein as Respondent. Attached hereto is an

appendix containing the opinion of the Florida Supreme Court

and other pertinent documents. Citations to the appendix

will be indicated parentheticaliy as "A" with the appropriate

page number(s). Citations to the petition for writ of

certiorari will be indicated parenthetically as "P" with the

appropriate page number(s).

OPINION BELOW

Petitioner seeks review of the Florida Supreme Court's

opinion affirming, his judgment and sentence of death. ‘The

opinion is reported as Davis v. State, 461 §Se.2d 67 (Fla.

1984) (A 1-6).

*

>

JURISDICTION

Petitioner seeks review 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 on

January 17, 1985 (A 7). This Court has jurisdiction only

to the extent that it finds a substantial federal question

is presented.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The instant case involves a death sentence imposed

pursuant to Florida Statutes §921.141 (1983). While

Petitioner asserts that the issue raised herein presents

a constitutional question under the Sixth and Fourteenth

Amendments to the United States Constitution, Respondent

steadfastly contends the contrary.

STATEMENT OF THE CASE

Respoudent objects to Petitioner's parentheticai

reference to disclosures of inadmissible information and

emotional reportage and commentary which impacted his

ability to secure a fair and impartial jury (P 1) as being

argumentative and conclusory.

For the purpose of resolving the narrow jurisdictional

question raised herein, Respondent accepts as accurate, though

incomplete, the remainder of Petitioner's Statement of the

Case and therefore submits the following additional information:

At the conclusion of jury selection, Petitioner, during

a side bar conference, concurred with defense counsel's

announcement to the trial court that he (Petitioner) was

satisfied with the jury selection and the jury selection process

(A 8).

HOW THE FEDERAL QUESTION WAS RAISED AND DECIDED BELOW

Respondent concurs with Petitioner's representation

concerning the manner in which he attempted to couch the voir

dire issue in terms of a federal question in the court below

(P 3). Respondent further concurs that the Florida Supreme

Court rejected the issue on the merits (P 3). However, as

will be discussed infra, the court's rejection of the issue

was predicated on state decisional authority, not federal

case law or federal constitutional provisions. See Davis v.

State, supra at 69, 70 (A 3, 4).

aie

REASONS WHY THE WRIT SHOULD NOT BE GRANTED

QUESTION PRESENTED

WHETHER THE FLORIDA SUPREME COURT'S AFFIRMANCE

OF THE TRIAL COURT'S DENIAL OF PETITIONER'S

MOTION FOR INDIVIDUAL AND SEQUESTERED VOIR

DIRE GIVES RISE TO A CLAIM, UNDER THE SIXTH

AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, THAT HE WAS DEPRIVED

OF HIS RIGHT TO BE TRIED BY A FAIR AND

IMPARTIAL JURY,

Notwithstanding the fact that the Florida Supreme

Court's disposition of the voir dire issue was based upon an

independent and adequate state ground, and notwithstanding the

absence of a constitutional question and the requisite

decisional confiict, discussed infra, Respondent contends that

one fact, and one fact alone, renders Petitioner's claim

palpably frivolous--Petitioner concurred with defense counsel's

announcement to the trial court that he (Petitioner) was’

satisfied with the jury selection and the jury selection

process as the following exchange at side bar irrefutably

demonstrates:

MR. TASSONE: [Defense counsel] Mr. Davis,

at this time let me state I think the record

should reflect that the State through Mr.

Austin and Mr. Kunz are present and chat

Mr. Davis is standing beside me and I would |

like to point out for the record that during

the course of the jury selection, Mr. Davis

and I had the opportunity to consult with

each other and that Mr. Davis participated

in the decisions that went to preemptory

challenges and Mr. Davis advised me yesterday

that he was satisfied with the jury selection,

even though there was one preemptory challenge

left and that he was satisfied with the jury

selection process.

Is that correct, sir?

MR. DAVIS: Yes, sir.

(A 8)

Although satisfied with the jury selection process,

Petitioner nevertheless argues that the Florida Supreme Court,

in upholding the trial court's denial of his motion for

individual and sequestered voir dire, resolved a federal

question contrary to the Fifth Circwit Court of Appeals’

decisions in United States v. Davis, 583 F.2d 190 (5th Cir.

1978) and United States v. Hawkins, 658 F.2d 279 (5th Cir.

1981), and the Louisiana Supreme Court's decision in State

Vv. Goodson, 412 So.2d 1077 (La. 1982), thereby providing

him with a basis to seek invocation of this Court's certiorari

jurisdiction.

Respondent submits that this Court is without juris-

diction to review the Florida Supreme Court's disposition

of this issue because the court's judgment was based solely

upon an independence and adequate state ground, Michigan v.

Long, __ U.S. __, 103 S.Ct. __, 77 L.Ed.2d 1201, 1215

(1983), to-wit: The Florida Supreme Court, after taking note

of Petitioner's admitted satisfaction with the jury selection

and selection process in its treatment of the venue issue,

went on to hold:

The granting of individual and sequestered

voir dire is within the trial court's

discretion. Stone v. State, 378 So.2d 76%

(Fla. 1979), cert. denied, 449 U.S. 986,

101 S.Ct. 407, 66 L.Ed.2d 250 (1980); Jones

v. State, 343 So.2d 921 (Fla. 3d DCA),

cert. 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. 1978). ‘Davis has

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, supra, at 69, 70.

In Michigan v. Long, supra, this Court held:

. » « When, as in this case, a state court

decision fairly appears to rest primarily

on federal law, cr to be interwoven. with

the federal law, and when the adequacy and

independence of any possible state law

ground is not clear from the face of the

opinion, we will accept as the most reason-

able explanaticn that the state court

decided the case the way it did because it

believed that federal law required it to do

so. If a state court chooses merely to

rely on federal precedents as it would on

the precedents of all other jurisdictions,

then it need only make clear by a plain

| Scatement in its judgment or opinion that

the federal cases are being used orly for

the purpose of guidance, and do not them-

selves compel the result that the court has

reached. In this way, both justice and

judicial administration will be greatly

improved. If the state court decision

indicates clearly and expressly that it .

is alternative ased on

separate, adequate, and independent grounds,

we, of course will not undertake to review

the decision. (Emphasis added).

Id. at 1214. Here it is patently clear from the face of the

opinion that the Florida Supreme Court's decision was

based exclusively upon a bona fide separate, adequate, and

independent state ground. The court, in ruling against

Petitioner on the voir dire isswe employed its supervisory

authority to review an exercise of discretion afforded

trial courts under state law--t»e manner in which voir dire

proceedings are to be conducted.

This Court further held:

Our review of the decision below under

this framework leaves us unconvinced that

it rests upon an independent state ground.

Apart from its two citations to the state

constitution, the court below relied exclu-

sively on its understanding of Terry and

other federal cases. Not a single state

case was cited to support the state

court's holding that the search of the

assenger compartment was unconstitutional.

or the court declared that the search

in this case was unconstitutional because

“([t)he Court of Appeals erroneously

applied the principles of Terry v. Ohio

. . to the search of the interior of the

vehicle in this case." (Citations and

footnotes omitted) (Emphasis added).

Id at 1216. However, a review of the instant decision under

the Michigan v. Long criteria must necessarily leave this

Court convinced that it rests upon an independent state

ground since the Florida Supreme Court relied solely upon

State cases and cited neither federal cases nor the federal

constitution. ! Indeed, there is no federal constitutional

requirement providing for an individual voir dire of all

jurors, exposed to potentially prejudicial publicity, in

state criminal trials. Jackson v. Amaral, 729 F.2d 41, 45

(lst Cir. 1984); Cape v. Francis, 558 F.Supp. 1207, 1221

(M.D. Ga. 1983), affirmed, 741 F.2d 1287 (llth Cir. 1984).

See also Ristaina v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47

1s state of affairs obviously recognized by Petitioner

who suggests that the Florida Supreme Court's decision herein

is in clear “albeit silent" conflict with Davis, Hawkins, and

Goodson (P 20). Respondent contends that pursuant to Michigan

Vv. Long, supra, "silent conflict" amounts to no conflict an

is therefore an inadequate basis upon which to predicate this

Court's certiorari jurisdiction.

ofe

— ee ee ee

-_

L.Ed. 2d 258 (1976); Murphy v. Florida, 421 U.S. 794, 95

$.Ct. 2031, 44 L.Ed.2d 589 (1975); Marshall v. United States,

360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). Nor

is there a constitutional right to any, particular manner of

conducting the voir dire and selecting a jury in federal

criminal trials so long as such limitations as are recognized

by the settled principles of criminal law to be essential

in securing impartial juries are not transgressed. Haith

v. United States, 231 F.Supp. 495, 498 (E.D. Pa. 1964),

affirmed, 342 F.2d 158 (3d Cir. 1965); Taylor v. United States,

386 F.Supp. 132, 144 n. 25 (E.D. Pa. 1974), affirmed, 521 F.2d

1399 (3d Cir. 1975). Furthermore, Respondent maintains that

since the granting of individual and sequestered voir dire

is a matter within the discretion of the trial court under

Florida law, Stone v. State, 378 So.2d 765, 768 (Fla. 1979),

cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250

(1980), Jones v. State, 343 So.2d 921, 923 (Fla. 3d DCA

1977), cert. denied, 352 So.2d 172 (Fla. 1977), as are the

methods of voir dire employed by the federal district courts

in criminal trials under Fed.R.Crim.P. 24(a), United States

v. Hawkins, supra, at 283, United States v. Brunty, 701

F.2d 1375, 1378 (llth Cir. 1983), United States v. Reeves,

730 F.2d 1189, 1194 (8th Cir. 1984), United States v. Hurley,

746 F.2d 725, 727 (llth Cir. 1984), an alleged abuse of that

discretion does not give rise to a potential federal constitu-

tional violation. See Piepenburg v. Cutler, 649 F.2d 783,

790 (10th Cir. 1981), holding that a state trial court's

denial of defense counsel's request to enter challenges for

cause outside the» presence of the jury was not a constitutional

violation because it was a matter which was within the discre-

tion of the trial] court.

eGo

ty

A — we

pe

In light of the foregoing, Petitioner's relianc«

upon United States v. Davis, supra, and United States v.

Hawkins, supra, is markedly misplaced. Davis and Hawkins

are particularly inapposite to the instant case since they

unarguably arose from the exercise of the circuit court's

supervisory authority over federal trial courts rather than

from the enforcement of an actual or perceived constitutional

mandate. See Jackson v. Amaral, supra, where the First Circuit

Court of Appeals affirmed denial of federal habeas relief to

a prisoner convicted in a state court holding:

Coming to the merits, we hold that the

trial court's failure to individually voir

dire the jurors did not violate Jackson's

right to trial by an impartial jury.

Although we have declared that jurors

exposed to potentially prejudicial

publicity during the course of trial

should be individually questioned to

ensure that they remain capable of

rendering a fair and impartial verdict,

United States v. Perrotta, 553 F.2d 247,

° st Cir. ), our directive

was based on our supervisory authority

over the federal courts rather than on

the Constitution. indeed, we expressl

noted in that Opinion that "Twje seeetti-

ca refrain trom making any statement

concerning what practices the Constitution

Might mandate in state criminal trieis.

355 F.2d at 250 n. 5. (Emphasis added).

Id at 45. See also Marshall v. United States, supra, at

3

L.Ed.2d 1252, where this Court afforded Marshall a new trial

because of juror exposure to prejudicial publicity based upon

an exercise of its supervisory power to formulate and apply

proper standards for enforcement of criminal law in the

federal courts and not upon any affirmative constitutional

; 2

requirement.

2

are not the concern of this Court. . . unless they rise

for some other reason to the level of a denial of rights

{[Mjere errors of state law [if error occurred)

*protected by the United States Constitution[,}" Barclay v.

1134, 1149

Florida, ___ U.S. , 103 S.Ct. __, 77 L.Ed.2d ,

, “", . . otherwise, every erroneous decision by a

con-

state court on state law would come here as a federa

stitutional question." Gryger v. Burke, 334 U.S. 728, 68

S.Ct. 1256, 92 L.Ed. 1 : 45). In other words,

this Court will not exercise supervisory authority over

court judgments.

State

e

Petitioner's reliance on State v. Goodson, supra, is

similarly misplaced. In Goodson, the question decided by

the Louisiana high court was whether the defendant who was

charged in Bossier Parish with the aggravated rape of a

Bossier City woman, should be granted a change of venue because

a fair and impartial trial could not be obtained in that

parish due to media publicity concerning his involvement in

. ‘

numerous rapes in a neighboring parish. The Louisiana

Supreme Court, applying state law, vacated the trial court's

ruling denying the defendant's motion for change of venue

opining:

That prejudice against the accused may

be presumed from unusual circumstances

is recognized by Louisiana law. In

deciding whether’ to grant a change of

venue the court must consider whether

prejudice, influence, or other reasons

are such that they will affect the

answers of jurors on the voir dire

examination or the testimony of witnesses

at the trial. La.C.Cr.P. art. 622. See

State v. Rodrigue, 409 So.2d 556 (La.

1982); State v. Bell, 315 So.2d 307 (La.

1975); State v. Felde, 382 So.2d 1384 (La.

1980).

Applying these precepts, we conclude that

the relator has failed to show that there

is either actual or presumed prejudice

against him to a degree that will render

a fair trial impossible. As there has not

yet been a voir dire examination, it is

impossible to decide at this point whether

actual prejudice against the accused exists

on the part of prospective jurors. Relator's

argument that the extensive coverage by

the media will deny him a fair trial rests

entirely upon the —} of publicity which

the events received. He has failed to

present us with any evidence from which we

can reasonably presume that Bossier Parish

jurors will be prejudiced by the publicity

which largely concerns the Caddo Parish

crimes. We cannot say based on this record

that the publicity is of such a character

that a Bossier Parish juror exposed to it

will be presumed prejudiced ig tee of

whether he says he can remain impartial.

Under Murphy, extensive knowledge in the

community of either the crimes or the

putative criminal and his prior crimes is

not in itself sufficient to render a trial

constitutionally unfair. Unfairness of a

constitutional magnitude cannot be presumed

in the absence of a "trial atmosphere. .

utterly corrupted by press coverage." Dobbert

-10-

v. Florida, 432 U.S. 282, 97 S.Ct. 2290,

353°'L.Ed.2d 344 (1977); Murphy v. Florida,

aE, The present record in this ase

not justify a presumption that the

trial atmosphere in Bossier Feria has

been so affected.

Nevertheless, because serious questions of

possible prejudice have been raised in

this case, the trial judge s order refusing

to change the venue shall be vacated, and ©

the trial judge is instructed to defer ruling

thereon until completion of voir dire in

this case, which shall be governed by the

following guidelines based upon the standard

proposed by the American Bar Association's

Standards Relating to Fair Trial and Free

Press § 8-3.5 (1978).

Id at 1080, 1081. Put simply, the Louisiana Supreme Court's

direction to the trial court, upon remand, to provide

individual and sequestered voir dire pursuant to ABA standards

was not the result of that court's resolution of a federal

question concerning the issue. Rather, it was merely a

by-product of the court's determination, on state grounds,

that the trial court should have deferred ruling on the

motion for change of venue until voir dire had been conducted.

Subsequent decisions of the Louisiana Supreme Court

and an intermediate appellate court indicate that, as in

Florida, no provision of Louisiana law either prohibits

or requires the sequestration of prospective jurors for an

individual voir dire and that details as to whether the

pocential jurors should be called singly or by groups are

left to the court's discretion. Statev. Monk, 454 So.2d

421, 425 (La. App. 3d Cir. 1984); State v. David, 425 So.2d

1241, 1247 (La. 1983). The foregoing decisions also

indicate that such discretion may be abused if prospective

jurors are not individually questioned if there is a signif-

icant possibility that individual jurors will be ineligible

to serve because of exposure to potentially prejudicial

material. David, at 1247; Monk, at 425. However, state

decisional law was cited as authority for this proposition,

not federal case law or federal constitutional provisions.

ofl.

In sum, the writ should not be granted herein because,

first and foremost, Petitioner's claim is frivolous on its

face in light of his admitted satisfaction with the jury

selection and the jury selection process. Moreover, the

Florida Supreme Court's decision on the voir dire issue

was based upon an adequate and independent state ground,

does not present a constitutional question, and does not

give rise to the requisite conflict with decisions of another

state court of last resort or a federal circuit court of

appeals. Petitioner has totally failed to demonstrate

the requisite jurisdictional basis for certiorari review

pursuant to Rule 17.1.(b), Rules of the Supreme Court of

the United States, and Ross v. Moffitt, 417 U.S. 600, 94

S.Ct. 2437, 41 L.Ed.2d 341 (1974).

o12-

x,

“~~

CONCLUSION

_ Based upon the foregoing argument and the authority

cited herein, Respondent respectfully requests this Honorable

Court deny the instant petition for writ of certiorari.

Respectfully submitted:

JIM SMITH

ATTORNEY GENERAL

nY Attorney General

The Capitol

Tallahassee, Florida 32301

(904) 488-0290

COUNSEL FOR RESPONDENT

_—-

i

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been forwarded to Steven L: Bolotin, Assistant

Public Defender, Post Office Box 671, Tallahassee, Florida

32302, this Ih say of April, 1985.

olé-

APPENDIX

!

DAVIS ».

* —~ tied * i lh ; P oe =e ve ‘ s

STATE Fla. 67

Cite as 461 S024 67 (Fin. 1984)

Accordingly, we approve the district

court decision.

It is so ordered.

BOYD, CJ., and ADKINS, OVERTON,

ALDERMAN, McDONALD and SHAW,

JJ., concur.

Allen Lee DAVIS, Appellant,

’.

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 held that: (1) trial

court .id 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

sentence.

that even if the ordinance ~oastituted a plan, the

plan had to be completed before ‘iability at-

We find especially the Resnik ra

convincing

tionale that the duty to maintain arises because

the ciuzenry depends on those things a govern-

ment has undertaken to provide. Applying this

to the ope J-pl 1g dichotomy of Com.

A-]

1. Criminal Law 115

Trial court may wait to decide whether

to grant change of venue until after at-

tempt to seat jury is made.

2. Criminad 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 €126(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 pror 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

tnal.

4. Jury © 131(13)

Granting of individual! and sequestered

voir dire of prospective jurors is within

trial cDurt's discretion.

&. Jury © 131(1)

Purpose of conducting voir dire is to

6. Jury €131(13)

In prosecution for murder, trial court

did not err by failing to conduct individual

and sequestered voir dire of prospective

jurors where there was no demonstration

7. Jury 65 ..

Competency of challenged juror is

mixed question of law and fact, determina-

tion of which is within trial court's discre-

ton.

mercial Carrier Corp. v. Indian River County,

371 So.2d 1010 (Fla. 1979), citizens have a rea

f

ate

eee ato. ame ecg?

seme

we NZe

% >

“2

ete 0s 0 Ny oa ete ae Be ne me eae ae

& Criminal Law @1158(3)

Manifest error must be shown befcre

trial court's ruling on competency of jurors

will be disturbed on appeal.

9. Jury 9714) ‘

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 € 1086.10

Trial court is encouraged to state on

the record the reasons for granting or not

granting challenge of juror for cause.

11. Criminal Law 4388

Unless both sides consent, results of

polygraph examinations are inadmissible in

adversarial proceedings

12. Criminal Law ¢921

Mere mention of possibility of poly-

graph examination does not compel grant.

ing of new trial.

13. Criminal Law 867

In prosecutiun 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 €°699, 1154

Control of comments in closing argu-

ments is within trial court's discretion, and

court's ruling will noi be overturned unless

clear abuse is shown.

15. Criminal Law 410301)

In absence of fundamental error, fail

ure to object precludes consideration of

points on appeal.

16. Criminal Law @°1037.1(1)

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.

prior

West's F.S.A. § 921.141.

Steven’ Bolotin, Asst. Public Defender,

Tallahassee, for appellant.

Jim Smith, Atty. Gen, and Andrew

Thomas, Asst. Atty. Gen., TalJahassee, and

Kathryn L. Sands, Asst Atty. Gen., Jack-

sonville, for appeilee.

PER CURIAM.

Allen Davis appeals his convictions of

murder and sentences of death. We have

jurisdiction, article V, sectica b\1), Flor+

da Constitution, and affirm the convictions

and sentences.

The state charged Davie with three

counts of first-degree murder for the

shooting/beating deaths of a woman and

her five and ten-year-old daughters in their

home. 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 tral

judge abused his discretion (1) by failing ta

grant a motion for change of venue, (2) by

denying a motion for individual and seques-

tered voir dire, and (3) by denying a motion

for mistrial based on a witness’ testimony

on redirect examination; (b) the trial judge

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. Moreover, our re

view of the record reveals that competent,

substantial evidence supports the convic-

from February 1 throug

{2} Davis now ciai’

judye's failure to gre

change of venue const

discretion. An applica

venue is addressed to :

cretion, and a trial cour"

reversed absent a palpe

tion. Straight . St

(Fla), cert. denied, 454

§56, 70 LEd2d 418 |

State, 378 So.2d 274 |

no such abuse here.

In Manning this (

test for changing ¥«

McCaskill ». State, 2

1977). The Court we:

in applying that test

a determination ™

whether the genera

inhabitants of a con

by knowledge of th

panying prejudice, t

opinions that juror

put these matters ¢

try the case sok

presented in the cc

#78 So.2d at 276. Th

Davis did not meet U

{3] At the heann

dence detailing medi:

According wo this ev:

publicity on the cas

May through early J

ree sentences of death

rted of three counts of

opriate where, even

as insufficient to sup

cumstance of avoiding

“*, evidence supported

wtances of heinous,

’ lings, premeditauion,

2d attempted robbery

i41

Asst. Public Defender,

Nant

Gen., and Andrew

jen., Tallahassee, and

(est Atty. Gen., Jack-

»'s his convicticns of

os of death. We have

, section (byl), Flore

affirm the convictions

‘4 Davis with three

ree murder for the

ths of a woman and

r-old daughters in their

avieted him as charged

ne death penalty for

ne trial court agreed

>mmendation and im-

ntences

claims: (a) the trial

‘retion (1) by failing to

ange of venue, (2) by

- andividual and seques-

3) by denying & motion

n @ witness’ testimony

won, (d) the trial judge

\s' challenge for cause

‘ror; and (c) the prose-

‘vent rendered the pen-

damentally unfair. Af.

‘%¢ points, we find that

id Moreover, our re

-veals that competent,

’ supports the eonvic

DAVIS v. STATE

Fie 69

Cle ap 661 Sa.dd 67 (Pin 1984)

tions and that the death sentences are ap

{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

for

if

1

of venue, alleging that the case

(Fia.), cert. denied, 454 US. 1022, 102 S.Cv.

556, 70 LEd2d 418 (1981), Manning ».

State, 378 So.2d 274 (Fia.1979). We find

po such abuse here.

In Manning this Court reiterated the

teat for changing venue as set out in

McCaskill ». State, 044 So.2d 1776 (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

opinions that jurors could not possibly

put these matters out of their minds and

try the case solely op the evidence

presented in the courtroom.

378 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 earty June 1982 with sporadic

1. A ena! cam may watt w demde whether

rent e chang: of venue until after on ater

coverage after that By the time for jury

selection almos: nine months had passed

since the murders. Of the forty-some pro

ae

i

rues

it '

bsg

Fr REE

Hie

Unt

tty

Hitt

144) Davis also claims that the tral

conducting voir dire is to secure ar impar-

ial jury. Lewis v. State, 377 So.2d 640

ther the partiality of his jury nor an abuse

* of discretion by the trial court, and we find

bo merit to this claim.

{7-9} As his last point dealing with the

jury, Davis argues that the trial court

fact, the determination of which is within

the trial court's discretion. Christopher v.

State, 407 So.2d 198 (Fla.1981), cert de-

med, 456 US. 910, 102 S.Ct 1761, 72

L.Ed.2d 169 (1982). Manifest error must

be shown before a trial court's ruling will

be disturbed on appeal. /d “The test for

determining juror competency is whether

the juror can lay aside any bias or preju-

evidence presented and the instructions on

the law given to him by the court” Lusk

v. State, 446 So.2d 1038, 1041 (Pia. 1984).

The prospecuve juror in question met that

test. When the defense challenged her for

cause the court pointed out that “the last

ume you inquired of her, she said that she

could listen to all of the evidence and rem

der a verdict based on that, so I will deny

your motion.”

(10) Prospective jurors are frequently

ambivalent, and their answers’ as well as

the queStions asked of them, are, some

times, not models of clarity. In such im

stances, as here, it can be argued that the

words om 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 or, the

‘461 SOUTHERN REPORTER, 24 SERIES

Q Do you know whether he did that

freely and voluntarily or aot?

A Yes, he did.

Q He did’

A I heard him tell [Detective] Kessing-

er, “Let's go take a lie detector test and

get it over with.”

Defense counsel then objected to the men-

ton of a polygraph examination as being

highly prejudicial and moved for a mistrial.

motion and stated: “I don't think there is

any prejudice. It was mentioned. There is

no evidence that (a polygrapt. examination}

was given and no evidence that 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 n.otion

for a mistrial.

{11-13} Unless both sides consent, the

results of polygraph examinations are inad-

massible in adversanal proceedings Walsh

v. State, 418 So.2d 1000 (Fila. 1982). Here,

however, neither party sought to have any

such results introduced. The mere mention

of the possibility of s polygraph examina-

tion does not compel the granting of a new

trial. See Sullivan v. State, 303 So.2d 632

(Pla.1974), cert. denied, 428 US. 911, 9

1983), cert. denied, —

1430, 79 LEd2d 754

showing has been made

(15,16) Defense cou

ally

696 F.2d 940 (lith Cir

US. —, 103 S.Ct 3%

(1983), on which Davis :

ecutor pointed out, the

and her two young chilc

a terrible crime, and th

2 In Chapman the Court

“court must be able to de

o tees tk. Pca eBeece—? - «+ aes +t = * oe -

DAVIS v. STATE Ps 7]

Chee we 0! Sa. 67 Pla 1984)

ner he did that 1983), cert. denied, — US. —-, 104 S.Ct vic was substantial We therefore find no

> ast? 1430, 79 LEd2d 754 (1984). No such merit to this point

showing has been made here. In his sentencing order the tra! court

ror the failure to object precludes consider- ofs heinous, atrocious. or crue!

ation of this point on appeal. Bassett ». and cold, calculated, and premeditated) ap

moma State, 449 So.2d 803 (Fla 1984), Mason v. plicable to all three counts of the indict

nination ao being State 438 So.2d S74 (Pia.1983), cert. de ment plus one sdditional factor (avord or

od for s mistrial nied, — US. —, 104 S.Cr 1830, 79 prevent arrest) applicable to the younger

qoun Grnied Oe 1 Bd.24 725 (1964). Davis now claims that daughter's death. The trial court found

— > the comments fundamenta! er nothing m mitigabon

~soned. There ror. This simply i not correct. The com ,

ooh nthe jury's recommendation or the sentence mp neces bad oh axl expunans to ot

yt nome posed. They did not go to the foundation 44 thst be had made s tactical decision not

now claims that soanmous™ to do so and gave several reasons for his

aying his motion Even if this prosecutor's argument had = decsin. First, he said that, in al) candor

: been objected to there was no reversible only the cold, calculated, and premeditated

error committed by the argument Ir and avoid or prevent arrest aggravating

erdes consent, the State 2 Murray, 443 So.2d 955, 956 (Fle. circumstances could be argued agninst

unations are inad- 1984), we stated that “prosecutorial error Moreover, because oo muligating crcury

~ ceedings Walsh alone does not warrant automatic reversa! stances existed and because the jury hed

Fla. 1962). Here unless the errors mvolved are 80 basic recommended the death sentence, the sen

cught to have eny to a fair trial that they can never be trest- tence could be sustained even if this Court

alygraph examina the error must be so prejudicial as to taint proper Elledge ». State, 346 So2d 996

ranting of s new the entire trial as judged by the harmless (Fig 1977). Finally, defense counse! stated

ate, 903 So.2d 632 error rule from Chapman . California, that, taking the above into considersuon

428 US. 911, 6 886 US. 18, 87 S.Ct 824, 17 LEA2d 705 he had decided to use his brief to attack the

‘220 (1976) The (1967)? Wide latitude is permitted in arg convictions rather than the sentences, even

nstruction to the ing to ® jury. Breedlove © State, 413 though be disagrees with the sentences

with this witness So 2d 1 (Pia), cert denied, 459 US. 1060,

a polygraph exam 103 S.Ct. 482, 74 L.EBd.2d 627 (1982). In 147} Section 921.141, Flonda Statutes.

rror on this point this case the prosecutor strongly urged the however, directs this Court to review both

Da jury to recommend the death penalty but the convicvon and sentence m ¢ death care

t on appeal, Devs we do not find that be went overboard and we will do so here on our own motion

oth or Our review of the record discloses that the Our review convinces us thai al! but one

ji ae fair prosecutor restricted his argument to evr aggravating circamstance avon or prevent

Pee ee dence in the record and to reasonalile com arres;, are supported by the fecord and

7 's , ments on that evidence This case is factu- that the trial court properly applied them to

— , The ally distinguishable from Hance » Zant, Davis. Davis had been convicted previous

: na that 696 F 2d 940 (1)th Cir), cert denied, — ly of several counts of robbery, attempted

ee ee US. —, 103 S.Cu 8544, T7 LEd2d 1893 robbery, and use of s firearm durmg com

nm rule” (1983), on which Davis relies. As the pros: mission of « felony. At the ume of these

tee ~ ecutor pointed out, the killing of s woman murders Davis was on parole from « fit

and her two young children m they home teen year pron senience Addruonally.

a terrible crime, and the proof against De the person who had dropped Deve off so

ear sbuse = shown. 2 te Chagas the Court bald Ghat 3 reviewing vor!

499 So2d 840 (Fis Sesurt quns be ohie wo dectase 0 beinel thes [ube ont

.

~~

r 2

72 Ma

that he could commit a burglary stated that

when he picked Davis up again Davis had

in his possession # camera of the same

make as one belonging to the family af the

victims which the victims’ husband and fa-

ther reported as \aissing after their deaths.

The manner and method of these murders

supports the finding of heinous, atrocious,

or cruel—the mother had been beaten over

che head with a pistol almost beyond recog-

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 hallway 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 aggra-

vation. Compare Harris 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, instruments 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, 3€6 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

not restricted to that listed in section 921.-

141, however, and we find the court's fail

ure to mention ncnstatutory mitigating evr

dence to be merely inar-ful drafting 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.

w=

461)-SOUTHERN REPORTER, 24 SERIES _

* .

eo pee 3% r,°4

ie ee ae

*

ADKINS, J., concurs im result only with

wo

J. Robert ROWE, Appellant.

’.

PINELLAS SPORTS AUTHORITY,

et al., Appellees.

PINELLAS RESORT ORGANIZATION,

INC., et al., Appellants,

’.

PINELLAS SPORTS AUTHORITY,

et al., Appellees.

Noa. 65322, 65420.

Supreme Court of Florida.

Nov. 9, 1984.

Rehearing Denied Nov. 21, 1984.

*

ca

Consolidated appeals were taken from

a judgment of the Circuit Court, Pineilas

County, James B. Sanderlin, J., which vali-

dated revenue bonds to be used to finance

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 counties

to levy a tourist development tax, (2) Flori

da law does not require that every substan-

tive provision of a proposed ordinance be

reflected ou a referendum ballot; all that is

required is that the voters be given fair

notice of the question to be decided; (3)

since Pinellas Sports Authority charter was

enacted by subsequent special act, the au-

thority for pledging of tourist development

tax rever.ues by county to secure obliga-

tions wsued by the PSA controlled over any

limitation imposed upon such a pledge by

A-6

Pd * - ‘

es 12a

oe ee

~

“be

- ‘

’

%.

ad!

sues as in the bond val.

4 Counties 1901)

Since the full text.

been advertised and «

hearing called to cons

ining to use of t

sufficiently complied

quirements of the T

Act West's FSA $5

& Municipal Corpore

Florida law does r

nance be reflected on

all that is required é

given fair notice of U

cided.

wet gs C

Supreme Court of Florida

~~

THURSDAY, JANUARY 17, 1985

ALLEN LEE DAVIS, oe

Appellant, oe

**

Vs. ee CASE NO. 63,374

+ Circuit Court Case No. 82-4752-CF Div. R

(Duval County)

STATE OF FLORIDA, ae

Appellee. iad ¢ wens P=

** ew fy “$ ened

enn

or

The Motion for Rehearing having been considered in light

2f the revised opinion is hereby denied. .

ECEIVE

OR See

AFFAIRS

pT. OF LEGAL

OE RIMINAL DIVISION

True Copy JB

cc: Hon. S. Morgan Slaughter, Clerk

Hon. Major B. Harding, Judge

“<= steven L. Bolotin, Esquire

Andrew Thomas, Esquire

Kathryn L. Sands, Esquire

.

a

EE =

ee

ee

792

TUESDAY, FEBRUARY 1, 1983, SESSION

(Whereupon, the following further proceedings were held

at side bar:)

MR. TASSONE: Mr. Davis, at this time let me estate I

think the record should reflect that the State through Mr.

@istin and Mr. Kunz are present and that Mr. Davis is standing

beside a and I would like to point out for the record that

during the course of the jury selection, Mr. Davis and I had

the opportunity to consult with each other and that Mr. Davis

participated in the decisions that went to preemptory chal-

lenges end Mr. Davis advised we yesterday that he was satiz-

fied with the jury selection, even though there was one pre-

emptory challenge left amd that he was satisfied with the

jury eelection process.

Is that correct, sir?

Mm. DAVIS: Yes, sir, 4

THE GOURT; Very well. Is there anything else?

Mm. MISTIN: Your Bomor, J have ope matter I would like

to bring ep. We live in a area where victims and witnesses

in cases are looked after « little bit better than they psed

to be and one of the victims in this case is the surviving

husband, Mx. Weiler, and Mr. Weiler will be a witness for

tne State fbr the very limited purpose of showing that a

camere was missing from his home when he went through it

mad checked it two weeks later. That will be the only thing

SCOROTHY 6. PETREE

Orica, COURT BEFORTEO

SACKBONWLLE FLOM

{Excerpts from record on appeal, Clerk's volure number VII,

page 792).

A-8