# Opposition Brief — Espinosa v. Florida

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0312%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1079

## Text

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Vv . Supreme Court, U.S.
qw Yr SILED

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,

vs

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

I.

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
I.

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,
14
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,

ROBERT A. BUTTERWORTH
Attorney General

Florida Bar No. 0239437
Assistant Attorney General
Department of Legal Affairs

401 N. W. 2nd Avenue, Suite N921
P. O. Box 013241

Miami, Florida 33101

(305) 377-5441

atin

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0312%3A3. Public record. Not legal advice.