Opposition Brief — Espinosa v. Florida

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CASE NO. 91-7390 MAR 25 1997

(QRMCE @ THE Cickk

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

HENRY JOSE ESPINOSA

Petitioner,

THE STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

BRIEF OF RESPONDENT IN OPPOSITION

ROBERT A. BUTTERWORTH

Attorney General

Tallahasse, Florida

. MICHAEL J. NEIMAND

Florida Bar No. 0239437

Assistant Attorney General

Department of Legal Affairs

4.1N. W. 2nd Ave., Suite N92]

P. O. Box 013241

Miami, Florida 33101

(305) 377-5441

COUNSEL FOR RESPONDENT

i) are:

QUESTION PRESENTED

The questions presented as set forth in the petition

WHETHER HENRY ESPINOSA WAS DEPRIVED OF

HIS RIGHTS TO DUE PROCESS AND A FAIR

TRIAL WHERE THE RECORD SHOWS THAT HIS

REPEATED MOTIONS FOR SEVERANCE WERE

DENIED, AND AT A JOINT TRIAL WITH CO-

DEFENDANT BELTRAN, BELTRAN'S COUNSEL WAS

SO ANTAGONISTIC, THAT HE RELIEVED THE

STATE OF MUCH OF ITS BURDEN TO PROVE THE

CASE BEYOND A REASONABLE DOUBT, BY GOING

BEYOND EXCULPATING HIS OWN CLIENT

BELTRAN, AND VICIOUSLY BLAMING ESPINOSA

FOR THE CRIME, TO THE EXTENT THAT HE

ACTIVELY AND EFFECTIVELY PROSECUTED

ESPINOSA EVERY BIT AS VIGOROUSLY AS THE

PROSECUTOR?

II.

WHETHER THE TRIAL COURT FAILED TO

PROPERLY LIMIT THE AGGRAVATING

CIRCUMSTANCE OF HEINOUS, ATROCIOUS AND

CRUEL IN VIOLATION OF, AND IN CONFLICT

WITH PROFITT V. FLORIDA AND MAYNARD V.

CARTWRIGHT?

IIl.

WHETHER THE SUPREME COURT OF FLORIDA

IMPROPERLY AFFIRMED ESPINOSA'S DEATH

SENTENCE WHERE THE RECORD SHOWED THAT HE

WAS DEPRIVED OF SUFFICIENT TIME AND FUNDS

TO ADEQUATELY AND EFFECTIVELY DEFEND

HIMSELF AGAINST A DEATH SENTENCE, IN

VIOLATION OF ALL GUARANTEES OF FAIRNESS,

JUSTICE AND DUE PROCESS; AND. THAT THE

IMPOSITION OF THE DEATH SENTENCE DEPRIVED

ESPINOSA OF DUE PROCESS AND - EQUAL

PROTECTION WHILE IMPOSING A

DISPROPORTIONAL CRUEL AND UNUSUAL

PUNISHMENT UNDER THE FIFTH, SIXTH, EIGHTH

AND FOURTEENTH AMENDMENTS OF THE UNITED

STATES CONSTITUTION?

(at

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............. nivasidbiwersyadessteasoki i

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CONSTITUTIONAL AND STATUTORY PROVISIONS ..............e00- 2

STATEMENT OF THE CAGE... occ cc cece ccc cccscdcccccecececees 2-8

REASONS FOR DENYING THE WRIT ..........ccceceecececceceees 9-17

THE DENIAL OF SEVERANCE DID NOT RESULT

IN AN UNFAIR TRIAL WHERE THE EVIDENCE

WAS NOT CONFUSING OR PREJUDICIAL. ........ 9-12

| oe

THE FLORIDA SUPREME COURT HAS’ NOT

APPLIED THE AGGRAVATING CIRCUMSTANCE OF

HEINOUS, ATROCIOUS OR CRUEL IN AN

OVERBOARD MANNER. ........-ceceeceeceeees 12-14

III

THE SENTENCE OF DEATH WAS IMPOSED IN

ACCORDANCE WITH DUE PROCESS OF LAW.

PR EE Oe Er ny hon ree 15-17

IE i ivk soins coco uheeak 6 ko cb iekeewkcs seen cdeeeses 18

TABLE OF CITATIONS

Cases Page

Espinosa v. State,

S89 Go.20 BEF (PIG. LOPL) .cccvevesessvcesvesscvces 2

McCray v. State,

416 Go.2d G04 (Pla. 1962). wc rvccccevccesecscesesess 7

Maynard v. Cartwright,

486 U.S. 356, 108 S.Ct. 1053, .

100 L.Ed. 2d ‘yr Mel. J PPPEEEPESEOPERRESESE LOOSE Ee i,8,

Profitt v. Florida,

428 U.S. 24, 96 S.Ct. 2960,

QD Li. BS. 2S PLD CAPTES) .cvcccccversovsevesevseccssvvercs i

Richardson v. Marsh,

481 U.S. 200, 107 S.Ct. 1702,

SS Bo- BR SS VIO. CROST Do vewe cca vasoccveresssvevuves 10

Smalley v. State,

566 Go.26 720 (Pla. 19SP). cccceccvcessccevssvecrnecs 13

Solomon v. Kemp,

735 P.24 395 (LACH Cir. 19GE). w.cveccvecesvsevseses 17

Ungar v. Sarafite,

S76 U.S. STS (1964) once vsvcccvvcccsvesssccvesecs 16

United States v. Upton,

331 F.2G L2GL (SCR Cif. T9TS) oe ccccvcesevsseceseses 16

OTHER AUTHORITIES

BO. U.B.C. BASST(LS) ccovccvvoevscccocectovoesesevecccsvecevess 2

443. 2 | WEB FS PPT rcrrrver rrr cri rrr re ee 2

ft: fc ER OR A LUPE TOTCETETIT CTT TTT Te Tec 2

Eighth Amendment, U.S.C... neces ncvcccvvsvecsees avtaweees 2,12,

FPEUSCOSRER AMORERORE, D.B.C. ccocccoecescversetvsestoestevsoses 2

-iii-

IN THE SUPREME COURT OF THE UNITED STATES

CASE NO. 91-7390

HENRY JOSE ESPINOSA,

Petitioner,

vs.

THE STATE OF FLORIDA,

Respondent,

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF FLORIDA

OPINIONS BELOW

The opinion of the Supreme Court of Florida is reported

at 589 So.2d 887 (Fla. 1991) (Pet. App. A).

The opinion of the Supreme Court of Florida in the co-

defendant's case is reported at 583 So.2d 1030 (Fla. 1991).

(Pet. App. B).

alle

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Respondent, State of Florida (the "State") notes that the

Petitioner's statement of constitutional and statutory provisions

lists applicable constitutional provision, to wit: the Fifth,

Sixth, Eighth and Fourteenth Amendments

STATEMENT OF THE CASE

Petitioner, Henry Jose Espinosa ("Espinosa") was found

guilty of first degree murder, second degree murder, attempted

first degree murder, grand theft and burglary. Espinosa v.

State, 583 So.2d 887 (Fla. 1991). Following the penalty phase of

the trial, the jury recommended the imposition of the death

penalty for the first degree murder. The trial court, followed

the recommendation, and imposed the death penalty. Id.

On direct appeal to the Supreme Court of Florida, that

Court affirmed the convictions and the imposition of the death

penalty. Id. at 894. The Supreme Court of Florida summarizes

the basic facts of the case:

ete

Espinosa was tried together with his

codefendant, Mauricio Beltran-Lopez. The

state introduced evidence showing that

the murders were committed in the

following manner. At one time Espinosa

had been neighbors with Bernardo and

Teresa Rodriguez and their daughters,

Odenia and Odanis. On the night of the

murders, Espinosa and Beltran-Lopez went

to the Rodriguezes' home. A violent

struggle ensued in the kitchen during

which the defendants shot and stabbed

Bernardo Rodriguez to _ death. The

defendants then grabbed Teresa Rodriguez

and dragged her to the master bedroom

where apparently Beltran-Lopez suffocated

her with a pillow while Espinosa

repeatedly stabbed her. The defendants

then went to Odanis's room which was

locked. Espinosa lured her out by

telling her that her mother wanted her.

When Odanis opened the door, Beltran-

Lopez grabbed her while Espinosa

repeatedly stabbed her. The defendants

then left, taking some money with them.

-Odanis's sister, Odenia, telephoned a

family friend who came and took the

sisters to the hospital.

At the trial Odanis, who was eleven

years old at the time of the murders,

testified that during the early morning

hours of July 10, 1986, she was in her

room and heard her mother's and

Espinosa's voices. Odanis recognized

Espinosa's voice since he had been her

neighbor. The telephone in her room rang

and a man, who she later identified as

Beltran-Lopez, came into her room, pulled

the telephone cord from the wall, and

left. Odanis then opened her door and

saw Espinosa holding a knife while

Beltran-Lopez held her mother. Her

mother signalled her, so she went back

into her room and locked the door. She

then heard her mother say, "Don't, Henry,

don't.” Espinosa then came to her door

and told her that her mother wanted her.

When she opened the door, Beltran-Lopez

grabbed her and Espinosa started stabbing

her. Later, at the hospital, Odanis

identified Espinosa and Beltran-Lopez as

the assailants from photographic lineups.

Odenia, who was twelve years old at

the time of the murders, testified that

she had heard her mother tell Espinosa

that if he would leave she would not call

the police. She also heard Espinosa call

Odanis out of her room. She, too, had

recognized Espinosa's voice because he

had been their neighbor, and she had

picked his picture out of a photographic

lineup.

The medical examiner testified that

Bernardo had been shot once and stabbed

Six times. Teresa had been smothered

with a pillow, stabbed six times, and

strangled while she was alive. The

parties stipulated that Odanis was

stabbed sixteen times. A fingerprint

expert testified that a bloody palm print

from the refrigerator was Beltran-Lopez's

and a bloody fingerprint was Espinosa's.

Beltran-Lopez's bloody prints were also

found on a chair cover. A serologist

testified that blood consistent with

Beltran-Lopez's blood, from a wound to

his hand, was found in several areas of

the house. The serologist also testified

that blood consistent with Teresa and

Odanis's blood was found spattered on a

pair of shorts in Espinosa's car. A Ms.

Lanza, with whom Beltran-Lopez had been

staying, testified that Beltran-Lopez and

Espinosa brought a pack of money to her

house after the murders and asked her to

keep it for them, telling her it was a

loan. Specks of blood were found on the

money .

Espinosa, himself, testified at the

trial that Bernardo had hired him to

drive trucks. On the night of the

murders, Espinosa and Beltran-Lopez went

to the Rodriguezes' house to pick up the

trucks. Bernardo then asked them to haul

marijuana, but Espinosa refused.

Bernardo then threatened Espinosa, and

Teresa came out into the kitchen and

pointed a gun at Espinosa. Beltran-Lopez

then grabbed the gun and Bernardo grabbed

a knife. Beltran-Lopez then shot

Bernardo and the two of them began

struggling violently. Beltran-Lopez

kicked and stabbed Bernardo to death.

Espinosa testified that Betran-Lopez next

killed Teresa and then attempted to kill

Odanis. Espinosa further claimed to have

taken almost no active part of the

killing with the exception of stabbing

Odanis once with the intention of making

Beltran-Lopez think Odanis was dead so

that he would leave her alone.

Espinosa also presented evidence at

the trial that Bernardo Rodriguez was

involved in drug trafficking. A police

officer testified that a car parked in

the Rodriguezes' driveway was registered

to a Maria Castellanos. When the police

went to her house in the course of the

murder investigation, they seized over a

thousand pounds of marijuana and some

marijuana-trafficking equipment. They

also found a dump truck at Castellanos's

house similar to one parked at the

Rodriguezes' house. Further, a beeper

found on a man who attempted to flee

Castellanos's house bore the same

telephone number as a beeper found in the

Rodriguezes' kitchen. A fingerprint

expert testified that Bernardo

Rodriguez's fingerprints were found on a

cigarette pack in the car and on a

candleholder in Castellanos's house.

Beltran-Lopez did not testify during

the guilt phase of the trial. The jury

ultimately found both defendants guilty.

During the penalty phase of the trial,

Espinosa presented several character

witnesses who testified that he was a

good person. Espinosa also made a

statement on his own behalf. Beltran-

Lopez also testified, stating that after

he was arrested he had given a statement

to the police concerning his involvement

in the murders. He largely blamed the

murders on Espinosa, admitting to only

minimal participation. He did admit that

he had stolen money from the house.

Beltran-Lopez's mother testified that he

was a good son.

Id. at 889-891.

The jury recommended by an eleven to one vote that

Espinosa be sentenced to death. The judge then sentenced

Espinosa to death, finding in aggravation that (1) he previously

had been convicted of a violent felony; (2) the murder was

committed to prevent lawful arrest; (3) the murder was committed

during an armed burglary; and (4) the murder was especially

heinous, atrocious or cruel. The judge found statutory

mitigation of no significant criminal history and nonstatutory

mitigation that Espinosa was a good man. Id. at 891.

The jury recommended the death penalty for the

codefendant by an eight to four vote. The judge then sentenced

the codefendant to death, finding in aggravation that (1) he

previously had been convicted of a violent felony; (2) the murder

was committed to prevent lawful arrest; (3) the murder was

committed during an armed burglary; and (4) the murder was

especially heinous, atrocious or cruel. The judge found

statutory mitigation of no significant criminal history and

nonstatutory mitigation that he was a good son. 583 So.2d at

1031.

In the direct appeal, the Supreme Court of Florida

affirmed the conviction and sentence of death. 589 So.2d at 894.

The Court rejected Espinosa's claim that he was entitled to have

his trial severed from the codefendant. The Court noted McCray

v. State, 416 So.2d 804 (Fla. 1982) states that severance is not

required simply because codefendants blame each other for the

crime. The key is that each defendant has the opportunity to

cross-examine the other if the other chooses to testify. Id. at

891-892. The Court held:

Under this standard, Espinosa and

Beltran-Lopez were clearly not entitled

to separate trials. The fact that

Espinosa testified at trial an was

subject to examination by Beltran-Lopez's

attorney is not a sufficient reason to

grant severance. Further, Espinosa was

not prejudiced by an inability to cross-

examine Beltran-Lopez during the guilt

phase since Beltran-Lopez did not testify

and the state did not attempt’ to

introduce Beltran-Lopez's confession.

Beltran-Lopez did testify during the

penalty phase, but Espinosa was able to

cross-examine him. No evidence was

introduced in this trial that could not

have been introduced against either

Espinosa or Beltran-Lopez if either had

been tried alone. Therefore, we find

that Espinosa and Beltran-Lopez were not

entitled to a severance.

Id. at 892.

The Florida Supreme Court also rejected Espinosa's

contention that the aggravating circumstances of heinous,

atrocious or cruel was unconstitutionally vague under Maynard v.

Cartwright, 486 U.S. 356, 108 S.Ct. 1053, 100 L.Ed.2d 372 /i988).

Id at 894.

REASON FOR DENYING THE WRIT

THE DENIAL OF SEVERANCE DID NOT RESULT IN

AN UNFAIR TRIAL WHERE THE EVIDENCE WAS

NOT CONFUSING OR PREJUDICIAL.

Espinosa contends that his trial was fundamentally unfair

because it was not severed from his codefendant. The trial was

unfair, it is contended, because the defenses were irreconcilable

and antagonistic and because the joint trial precluded Espinosa

from presenting his entire defense.

The contention of irreconcilable and antagonistic

defenses lacks support from the record. Espinosa's defense at

trial, was that the victim had hired him to drive trucks. On the

night of the incident Espinosa and his codefendant went to the

victim's house to pick up the trucks. At that pcint the victim

asked him to haul marijuana. When Espinosa refused, the victims

tried to force Espinosa by threatening him with a gun. At that

point the codefendant grabbed for the gun, and kilied one of the

victims. Espinosa then testified that his codefendant killed the

other victim as well as perpetrated the attempted murder. He

claimed that he did not have an active role in the killings.

Espinosa buttressed the marijuana defense by claiming that the

victim was involved in trafficking of marijuana.

Although, the codefendant did not testify at the

guilt/innocence part of the trial, he did testify at the penalty

phase. The codefendant blamed the murders on Espinosa, admitting

to only minimal participation.

The historical facts as summarized by the Florida Supreme

Court in its decision, reflect that the victim was stabbed and

effectually suffocated by a pillow. The victim's daughter

testified that she saw the codefendant hold her mother while

Espinosa was stabbing her with a knife. The codefendant suffered

a knife wound on his hand and his blood was found all over the

house. Espinosa's fingerprint was found in blood and blood

consistent with the victim's and her daughter was found on

Espinosa's shorts. Espinosa and his codefendant turned over

blood stained money to friends for safe keeping.

Based on the foregoing, this case was the classic one for

a joint trial. Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct.

1702, 95 L.Ed.2d 170 (1987):

Joint trials generally serve the

interests of justice by avoiding

inconsistent verdicts and enabling more

accurate assessment of relative

culpability-advantages which sometimes

operate to the defendant's benefit. Even

apart from these tactical considerations,

joint trials generally serve the

interests of justice by avoiding the

scandal and inequity of inconsistent

verdicts.

aie

The Florida Supreme Court in affirming the denial of severance

specifically relied on these factors. 589 So.2d at 892.

Espinosa and his codefendant blamed each other for the murders.

Clearly the jury was properly given the task of determining

credibility and culpability. Here the jury believed only the

eyewitness ' and physical evidence and discredited both

Defendant's version of the facts. Therefore the joint trail

served its purpose to ensure that all the evidence would be

considered and consistent verdicts would be entered.

Espinosa's second contention that the joint trial

precluded him from presenting his entire defense is based on the

fact that he was not allowed to present evidence of his

codefendant's violen: propensities. Specifically, he wanted to

show that his codefendant had a history of violent behavior when

he lived in Nicaragua. He contends that this would have

supported his defense that the codefendant flew into a rage

during the argument and he killed the victims.

The Florida Supreme Court was presented with the claim

and rejected it on the ground the evidence was inadmissible,

regardless of whether the trial was joint or separate, since all

it established was that the codefendant generally had a violent

disurder.

We reject these claims. The evidence

of Beltran-Lopez's violent history is

clearly inadmissible under section

elke

Based on the foregoing,

of heinous,

90.404, Florida Statutes (1987). If

Espinosa’s intention was to show that

Beltran-Lopez had a generally violent

character, then the evidence was

inadmissible under section 90.404(1).

That section states that "[e]vidence of a

person's character or a trait of his

character is admissible to prove that he

acted in conformity with it on 4a

particular occasion." This general rule

has several exceptions, none of which

applies to this evidence. If Espinosa

intended to present the evidence as

Similar fact evidence of other crimes,

wrongs, or acts, then the evidence was

inadmissible under section 90.404(2)(a)

since it clearly would be offered solely

to prove Beltran-Lopez's bad character or

propensity.

his constitutional rights.

Il.

THE FLORIDA SUPREME COURT HAS NOT APPLIED

THE AGGRAVATING CIRCUMSTANCE OF HEINOUS,

ATROCIOUS OR CRUEL IN AN OVERBROAD

MANNER.

atrocious or cruel violates this Court's decision in

Maynard v. Cartwright, 486. U.S. 356, 108 S.Ct. 1853,

More specifically, he contends that

given to the jury, it is violative of the Eighth Amendment.

= te

Espinosa received a fair

trial

and the denial of severance did not result in a deprivation of

Espinosa contends that Florida's aggravating circumstance

100 L.Ed.2d

jury

instruction is overbroad and since no explanation of the term is

—-

The Florida Supreme Court has addressed the issue of the

nonapplicability of Maynard to Florida's capital sentencing

process in Smalley v. State, 546 So.2d 720 (Fla. 1989). The

court therein held that the decision in Maynard, which related to

Oklahoma's capital sentencing scheme, does not apply in Florida,

because in Florida the trial court, not the jury, is the actual

sentencer and because the Florida Supreme Court has adopted and

consistently applied a limiting construction of the aggravating

circumstance of heinous, atrocious and cruel. The Florida

Supreme Court reasoned further:

This Court has narrowly construed the

phase "especially heinous, atrocious, or

cruel" so that it hast more. precise

meaning than the same phrase has in

Oklahoma. In State v. Dixon, 283 So.2d 1, 9

(Fla. 1973), cert. denied, 416 U.S. 943, 94

S.Ct. 1950, 40 L.Ed.2d 295 (1974), we

said: -

It is our interpretation that

heinous means extremely wicked or

shockingly evil; that atrocious

means outrageously wicked = and

vile; and, that cruel means

designed to inflict a high degree

of pain with utter indifference

to, or even enjoyment of, the

suffering of others. What is

intended to be included are those

capital crimes where the actual

commission of the capital felony

was accompanied by such additional

acts as to set the crime apart

from the norm of capital

felonies-- the conscienceless or

pitiless crime which is

unnecessarily torturous to the

victim.

It was because of this narrowing

construction that the Supreme Court of

aiDe

the United States upheld the aggravating III.

circumstance of heinous, atrocious, or

cruel against a specific eighth amendment THE SENTENCE OF DEATH WAS IMPOSED IN

vagueness challenge in Profitt v. Florida, 428 ACCORDANCE WITH DUE PROCESS OF LAW.

U.S. 24, 96 S.Ct. 2960, 49 L.Ed.2d 913

(1976). Indeed, this Court has continued

to limit the finding of heinous, Espinosa first claims that he was denied a continuance to

atrocious, or cruel to those

conscienceless or pitiless crimes which prepare for the penalty phase. The Florida Supreme Court

are unnecessarily torturous to the

victim. E.g., Garron vu. State, 528 So.2d rejected this claim as follows:

353 (Fla. 1988); Jackson v. State, 502 So.2d

409 (Fla. 1986), cert. denied, 482 U.S. 920, Turning to the penalty phase of the

107 S.Ct. 3198, 96 L.Ed.2d 686 (1987); trial, Espinosa first claims that he was

Jackson v. State, 498 So.2d 906 (Fla. 1986); denied the time and money necessary to

Teffeteller vu. State, 439 So.2d 840 (Fla. present mitigating evidence by flying in

1983), cert. denied, 465 U.S. 1074, 104 several of Espinosa's family members from

S.Ct. 1430, 79 L.Ed.2d 754 (1984). That Central America to testify to a history

Proffitt continues to be good law today is of mental and physical child abuse.

evident from Maynard v. Cartwright, wherein Counsel claims that he did not make the

the majority distinguished Florida's motion to bring them to the United States

sentencing scheme from those of Georgia until the beginning of the penalty phase

and Oklahoma. See Maynard v. Cartwright, 108 . because Espinosa had been embarrassed to

S.Ct. at 1859. tell him about the abuse until the

penalty phase was imminent. Espinosa

also claims that the judge should have

Id. at 722. granted him a delay to obtain new counsel

for the penalty phase to his trial.

Espinosa wanted to be represented by an

experienced death-penalty lawyer from

Espinosa's contention therefore must be rejected since Texas, and he informed his counsel of his

desire at the end of the guilt phase.

the application heinous, atrocious or cruel is strictly limited

Espinosa and his counsel were aware for

and strictly enforced to those crimes which are conscienceless or several months that the state would seek

: the death penalty. On the first day of

pitiless and which are unnecessarily tortuous to the victim. the trial, the trial judge informed

Espinosa and his attorney that he would

Therefore it does not violate the Eighth Amendment. begin the penalty phase of the trial

approximately two hours after the jury

returned its verdicts. Espinosa's

counsel agreed to the procedure. “The

granting or denial of a motion for

continuance is within the discretion of

the trial court.” William vu. State, 438

So.2d 781, 785 (Fla. 1983), cert. denied,

465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d

146 (1984). The trial judge did not

abuse his discretion. Any prejudice to

Espinosa was a result of his own delay in

preparing for the penalty phase of the

trial.

-14- -15-

589 So.2d at 893.

Based on the foregoing facts, the denial of the

continuance did not violate Espinosa's due process rights. This

Court addressed this in Ungar v. Sarafite, 376 U.S. 575, 589

(1964):

The matter of continuance is

traditionally within the discretion of

the trial judge, and it is not every

denial of a request for more time that

violates due process even if the party

fails to offer evidence or is compelled

to defend without counsel. Contrariwise,

a myopic insistence upon expeditiousness

in the face of a justifiable request for

delay can render the right to defend with

counsel an empty formality. There are no

mechanical tests for deciding when a

denial of a continuance is so arbitrary

as to violate due process. The answer

must be found in the circumstances

present in every case, particularly in

the reasons presented to the trial judge

at the time the request is denied.

(Citations omitted).

When a motion for a continuance for the purpose of securing

witness. is denied a key factor in the determination is whether

due diligence was used to secure the witness. United States v.

Upton, 531 F.2d 1281 (Sth Cir. 1976).

Applying the foregcing to the instant case it to clear

that Espinosa’s lack of due diligence resulted in the delay in

preparing for the penalty phase. As such the denial of the

continuance did not deny him due process of law.

afte

Espinosa’s next contention which in any way touches upon

due process, is that his death sentence was disproportionate. A

defendant is afforded due process when a State court does a

proportionality review. He does not have due process claim on

the ground that the State court's proportionately review is not

to his liking. Solomon v. Kemp, 735 F.2d 395 (llth Cir. 1984).

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,