Petition for Writ of Certiorari — Kelley v. Florida (No. 86-106)

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In The Supreme Couft

of the United States

October Term, 1985

William Harold Kelley,

Petitioner,

-against-

The State of Florida,

Respondent.

Petition for a Writ of Certiorari

to the Supreme Court of Florida

Alan M. Dershowitz

232 Brattle Street

Cambridge, MA 02138

(617) 495-4617

Nathan Z. Dershowitz

Victoria B. Eiger

Dershowitz & Eiger, P.C.

225 Broadway

New York, New York 10007

(212) 513-7676

Attorneys for Petitioner

William Harold Kelley

Of Counsel

Laura Hanft

Ill.

QUESTIONS PRESENTED FOR REVIEW

Whether the Florida Supreme Court

applied a constitutionally

impermissible standard in assessing

whether the State's destruction of

all of the real evidence in the case

deprived petitioner of a fair trial.

Whether the admission of third party

testimony purportedly as a prior

consistent statement where the

declarant denied making the

Statement violated petitioner's

constitutional rights to due process

and confrontation.

Whether in this case the death

penalty constitutes cruel and

unusual punishment forbidden by the

Eighth and Fourteenth Amendments.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR

DUT PEC PEE GORER SSG abeesceesccecececce i

EEE s wee bwecccccccscccccecs ii

We MURMURED I EB cen ccccccccocecccce oe1lV

Di OMEI Cheb bees eeebcececcocseccecece vii

JURISDICTION OF THE COURT........... ooee Vil

CONSTITUTIONAL PRCVISIONS AND

ee MUUWORIVED ss occ ecccccccccce oooe Vill

STATEMENT OF THE CASE.....cccees Tere rere

REASONS FOR GRANTING THE WRIT

POINT I THE FLORIDA SUPREME

COURT APPLIED A

CONSTITUTIONALLY

IMPERMISSIBLE

STANDARD IN ASSESSING

WHETHER THE STATE'S

CESTRUCTION OF ALL OF

THE REAL EVIDENCE IN

THE CASE DEPRIVED

PETITIONER OF A FAIR

2 Oe eccccseccceec cLU

POINT II THE ADMISSION OF

THIRD PARTY TESTIMONY

PURPORTEDLY AS A

PRIOR CONSISTENT

STATEMENT WHERE THE

DECLARANT DENIED

MAKING THE STATEMENT

VIOLATED PETITIONER'S

-ii-

CONSTITUTIONAL RIGHTS

TO DUE PROCESS AND

CONFRONTATION............ 42

POINT III IN THIS CASE THE

DEATH PENALTY

CONSTITUTES CRUEL AND

UNUSUAL PUNISHMENT

FORBIDDEN BY THE

EIGHTH AND FOURTEENTH

MMBWDMBNTS. cc cceccnccccnn 36

Vr EN A 5 8 bs be a eo eo eevee eeeneesss 60

APPENDIX

Opinion of the Supreme Court

cf Florida (Apr. 10, i a or |

Trial Court's Oral Ruling on

Defendant's Motion to Dismiss

Indictment Because of the State's

Destruction of Evidence -

Transcript on Appeal, Vol. 1,

wwe NORM y, Edie BOCA 6 nek oon ccn cdc A-16

Findings of Fact Imposition of

Death Penalty -

Transcript on Appeal, Vol. 6,

1001-1007 (April 2, 1984).......... A-20

Order extending time to file

Petition for Writ of Certiorari....A-3]

=sii-

TABLE OF AUTHORITIES

Berger v. United States, 295 U.S. 78 (1935)..... 40

Brecy ¥. Marviane, 373 UsB. BS (1963) wccvcvccssus 23

California v. Green, 399 U.S. 149

Ce 8 PPP EPPTT TT CTT rere eee eee 47,48,49

California v. Trombetta, 467 U.S. 479,

BS BsGee ROMO CEPOS ca ncccveeceseseseve 22,41

Douglas v. Alabama, 380 U.S. 415 (1965)......... 46

Eddings v. Oklahoma, 455 U.S. 104 (1982)........ Fe

Furman v. Georgia, 408 U.S. 238 (1974)....... 50,55

Godfrey v. Georgia, 446 U.S. 420 (1980)...... 54,57

Graves v. United States, 150 U.S. 118

els | rer eer wr Tere TTT eee T Tree ee 35

Gregg ¥. Georgia, 408 U.8. 238 (1972) wccecvvcses 55

Hitchcock v. Wainwright, No. 85-6756,

cert. granted, 54 U.S.L.W. 3809

4 Ro See Re re re 52

Killian v. United States, 368 U.S. 231

ri te a el ana hae ea ee 41

Loceect ¥. Obio, 438 0.8. SE6 (i978) «ccccccecece $3

McClesky v. Kemp, No. 84-6811,

Ceres Seer, DULY Fe LPBOe wea caanstheasen 52

-iVvV-

Michigan v. Long, 463 U.S. 1032 (1983).......... 26

Oregon v. Hass, 420 U.S. 714 (1975)............. 26

Salvatore v. State, 366 So.2ad 745

(Fla. 1978), cert. denied,

POS Ube BOS CATE) on 0 6c hh edu icewcewencan 25

Thompson v. City of Louisville,

WOO WOW COE CEOOUT 66k 65 466 aK b0 sev eecank 49

Toussie v. United States, 397 U.S. 112

YRWUNENSERGEN Gu 56h O66 KA O46 00 k50%K00kende 36

United States v. Agurs, 427 U.S. 97

2 2. 3 apap enna 22,23,24,41

United States v. Bagley, 105 S.ct.

Ute ABOUERG ACA a CRA 6a hse obs 4k os 00a CKO 21,40

United States v. Charles, 738 F.2d 686

SOU WANG SUES Can iy 04 wd ad oe eed inkavcenlk., 33

United States v. Diggs, 649 F.2d 73]

[oO WEES BUUET Shs ce ec dbbdbkeeeecaak eee 38

United States v. Harris, 761 F.2d 394

[Few AEe AUEON4 605 ne bes wubb ebadnsccualeue 49

United States v. Jacobs, 475 F.2d 270

(2d Cir.), cert. denied,

ae GAGs GEn TOOT OE TS kas hoN oe id oehaC KR 38

United States v. Marion, 404 U.S. 307

[oP TOPE NOSCERSERGREA RORY SOO Wad owes bee che en 36

United States v. Maultasch, 596 F.2d 19

[Sm UO s SPUOE 6 A WEAS 6 ba bbb vk a suwecead deca 45

United States v. McPartlin, 595 F.2d 1321

(7th Cir.), cert. denied,

444 UG ee 833 ooo

United States v. Valenzuela-Bernal,

458 U.S. 858 Po. ) ) = PRSEap er *enrewee sk ek

United States v. West, 670 F.2d 675

(7th Cir. ), cert. denied,

457 Vee 1124 $0 eer SP eee

OTHER AUTHORITIES

McCormick on Evidence §272 (3d ed. 1984).......-35

4 J. Weinstein & M. Berger, Weinstein's

Evidence, §801(d)(1)(B)(01)... ccc eee eee oe 0 49

5 Wigmore on Evidence §1367.....ccccccccvssseess 48

OPINIONS PBELOW

The opinion of the Supreme Court of

Florida in Kelley v. Florida is reported at

486 So.2d 578 (Pla. 1986). It is reproduced

in the Appendix at A-l.

JURISDICTION Of THE COURT

The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §$1257(3). The judgment

sought to be reviewed is a judgment of the

Supreme Court of Florida dated April 10, 1986,

which affirmed, by written opinion (A-1l), a

judgment of conviction and sentence entered

against the Petitioner by the Circuit Court in

and for Highland County, Florida on April 2,

1984,

By order dated June 1l, 1986, Associate

Justice Lewis F. Powell, Jr. granted

Petitioner's motion for an extension of time

to file the Petition for a Writ of Certiorari

to and including July 9, 1986. (A-31)

-vil-

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

AMENDMENT XIV

Section l. ... No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without

due process of law; nor deny to any person

within its jurisdiction the equal protection

of the laws.

AMENDMENT VI

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial,...to be confronted with the witnesses

against him....

AMENDMENT VIII

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.

6C FLA. STAT. ANN. §90.801 (WEST 1979)

90.801 Hearsay; definitions; exceptions

(2) A statement is not hearsay if the

declarant testifies at the trial or hearing

and is subject to cross-examination concerning

the statement and the statement is: (b)

Consistent with his testimony and is offered

to rebut an express or implied charge against

him of imprcper influence, motive, or recent

fabrication.

23 FLA. STAT. ANN §921.141 (WEST 1985)

921.141. Sentence of death or life

imprisonment for capital felonies; further

proceedings to determine sentence.

(1) Separate proceedings on issue of

penalty.-- Upon conviction or adjudication of

guilt of a defendant of a capital felony, the

court shall conduct a separate sentencing

proceeding to determine whether the defendant

should be sentenced to death or life

imprisonment as authorized by s.775.082. The

proceeding shall be conducted by the trial

judge before the trial jury as soon as

practicable. If, through impossibility or

inability, the trial jury is unable to

reconvene for a hearing on the issue of

penalty, having determined the guilt of the

accused, the trial judge may summon a special

juror or jurors as provided in chapter 913 to

determine the issue of the imposition of the

aive

penalty. If the trial jury has been waived,

or if the defendant pleaded guilty, the

sentencing proceeding shall be conducted

before a jury impaneled for that purpose,

unless waived by the defendant. In the

proceeding, evidence may be presented as to

any matter that the court deems relevant to

the nature of the crime and the character of

the defendant and shall include matters

relating to any of the aggravating or

mitigating circumstances enumerated in

Subsections (5) and (6). Any such evidence

which the court deems to have probative value

may ke received, regardless of its

admissibility under the exclusionary rules of

evidence, provided the defendant is accorded a

fair opportunity to rebut any hearsay

Statements. However, this subsection shall

not be construed to authorize the introduction

of any evidence secured in violation of the

Constitution of the United States or the

Constitution of the State of Florida. The

state and the defendant or his counsel shall

be permitted to present argument for or

against sentence of death.

(2) Advisory sentence by the jury.--

After hearing all the evidence, the jury shail

deliberate and render an advisory sentence to

the court, based upon the following matters:

(a) Whether snfficient aggravating

circumstances exist as enumerated in

subsection (5);

(b) Whether sufficient mitigating

circumstances exist which outweigh tne

aggravating circumstances found to exist; and

whether the defendant should be sentenced to

life imprisonment or death.

(3) Findings in supoort of sentence of

death.-- Notwithstanding the recommendation of

-xi-

a majority of the jury, the court, after

weighing the aggravating and mitigating

circumstances, shall enter a sentence of life

imprisonment or death, but if the court

imposes a sentence of death, it shall set

forth in writing its findings upon which the

sentence of death is based as to the facts:

(a) That sufficient aggravating

Circumstances exist as enumerated in

subsection (5), and

(b) That there are insufficient

mitigating circumstances to outweigh the

aggravating circumstances,

In each case in which the court imposes

the death sentence, the determination of the

court shall be supported by specific written

findings of fact based upon the circumstances

in subsections (5) and (6) and upon the

records of the trial and the sentencing

proceedings. If the court does not make the

-Xli-

ee Ree See ee

et bi te Al OEE he eae

findings requiring the death sentence, the

court shall impose sentence of life

imprisonment in accordance with s.775.082.

(4) Review of judgment and sentence.--

The judgment of conviction and sentence of

death shall be subject to automatic review by

the Supreme Court of Florida within 60 days

after certification by the sentencing court of

the entire record, unless the time is extended

for an additional period not to exceed 30 days

by the Supreme Court for good cause shown.

Such review by the fupreme Court shall have

priority over all other cases and shall be

heard in accoidance with rules promulgated by

the Supreme Court.

(5) Aggravating circumstances.--

Aggravating circumstances shall be limited to

the following:

(a) The capital felony was committed by a

person under sentence of imprisonment.

-xiii-

(b) The defendant was previously

convicted of another capital felony or of a

felony involving the use or threat of violence

to the person.

great risk of death to many persons.

(d) The capital felony was committed

while the defendant was engaged, or was an

accomplice, in the commission of, or an

attempt to commit, or flight after committing

Or attempting to commit, any robbery, sexual

cattery, arson, burglary, kidnapping, or

aircraft piracy or the unlawful throwing,

placing, or discharging of a destructive

device or bomb.

(e) The capital felony was committed for

the purpose of avoiding or preventing a lawful

arrest or effecting an escape from custody.

(f) The capital felony was committed for

pecuniary gain.

-xiv-

(g) The capital felony was committd to

disrupt or hinder the lawful exercise of any

governmental function or the enforcement of

laws.

(h) The capital felony was especially

heinous, atrocious, or cruel.

(i) The capital felony was a homicide and

was committed in a cold, calculated, and

premeditated manner without any pretense of

moral or legal justification.

(6) Mitigating circumstances.--

Mitigating circumstances shall be the

following:

(a) The defendant has no significant

history of prior criminal activity.

(b) The capital felony was committed

while the defendant was under the influence of

extreme mental or emotional disturbance.

defendant's conduct or consented to the act.

(d) The defendant was an accomplice in

the capital felony committed by another person

and his participation was relatively minor.

(e) The defendant acted under extreme

duress or under the substantial domination of

another person.

(f) The capacity of the defendant to

appreciate the criminality of his conduct or

to conform his conduct to the requirements of

law was substantially impaired.

(g) The age of the defendant at the time

of the crime.

-xvVvl-

STATEMENT OF THE CASE

This case raises the terrifying

oossibility that an innocent man stands

convicted and sentenced to death because the

court clerk ran out of storage space. In

1981, fifteen years after the murder of

Charles Von Maxcy, Petitioner William Kelley

was indicted for the crime. He has been

convicted and sentenced to death. No physical

evidence linked him to the slaying. Indeed,

all physical evidence of the crime had been

destroyed by the State years earlier, because

the clerk claimed he needed the space. The

State's case against Kelley rested entirely on

the testimony of one John Sweet, who in the

late 1960's had himself been tried twice for

masterminding the Maxcy murder.

Kelley's first trial, at which Sweet

testified, ended in a hung jury. At Kelley's

second trial Sweet was again the star witness.

The trial court permitted Sweet's

doubtful credibility to be bolstered through

introduction of a series of a "prior

consistent statements" allegedly made by Sweet

about Kelley's involvement in the crime --

which, if pelieved, would be higly

incriminating. But Sweet himself adamantly

denied having made these "prior consistent

statements." Petitioner, who has always

maintained that he was not involved in the

murder, was convicted at the second trial

after the second jury's deadlock was broken by

a verdict-urging charge. Despite the

weaknesses in the State's case, he stands

sentenced to death.

FACTS

Twenty years ago, on October 3, 1966,

Charles Von Maxcy was murdered in his home in

Sebring, Florida. He had been stabbed several

times and shot in the head.

ai aia

Sweet, who had been involved in an

illicit love affair with Maxcy's wife, (Irene)

was chargea with the murder soon after it

occurred. It was the state's contention that

Sweet had arranged for the murder of Maxcy so

that he (Sweet) and Irene could live together

On what Irene would inherit upon Maxcy's

death. The State contended then and at all

times thereafter that, through an

intermediary, Andrew Von Etter and the

Petitioner were hired to kill Maxcy and that

they in fact did so,

Lacking evidence to support its theory

that Kelley and Von Etter were involved, the

State proceeded against Sweet alone. Sweet's

first trial resulted in a hung jury. He was

tried again, and convicted, but the conviction

was reversed on appeal.!

'The appeals court ruled that cross-

examination of the state's key witnesses, one

of whom was Irene Maxcy, had been improperly

(footnote continued)

Although the appeals court remanded for a

new trial, the State declined to retry Sweet.

In 1971, Sweet's motion for discharge (Record

on Appeal to the Supreme Court of Florida

{hereinafter "“RA"] at 1204-05) was granted,

the State having indicated that inability to

obtain necessary witnesses made it impossible

to try the case again. (State's Response to

Motion for Discharge, RA 1170-71)

Although it was still the State's

contention that Von Etter and Kelley were the

actual contract killers, and although there is

no statute of limitations for murder in

Florida, in April cf 1976, on the request of

the court clerk, the State petitioned the

court for an order permitting disposal of the

evidence adduced at Sweet's trial, on the

ground that “this cause had been disposed of."

(footnote continued from previous page)

Curtailed. See Sweet v. State, 235 S$o.2d 40

(Fla. 24 D.C.A.), cert. denied, 239 So.2d 267

(Fla. 1970).

(Petition for Disposal of Evidence, RA 1172)

The order was signed by a judge and the

State's exhibits -- including the .38 caliber

bullet found near Maxcy's body; a bloody sheet

which the State contended was placed over

Maxcy's body before he was stabbed and which,

according to the prosecutor, explained why Von

Etter and his companion were not bloodstained

when seen shortly after the crime; a piece of

the victim's shirt; and two handwritten

Statements by Sweet -- were destroyed. (RA

1206-08) Also unavaiiable through loss or

aestruction was other evidence accumulated in

the course of the murder investigation,

including nair samples, fingernaii scrapings,

blood samples and scrapings, carpeting from

the Maxcy home, and a brake pedal and floor

-5-

mat trom the victim's car which the killers

were supposed to have used after the killing.

(See Supplemental brief of Appellant at 2)2

There matters stood until 1981 when Sweet

approached Massachusetts Jaw enforcement

authorities seeking assistance in exchange for

information he purportedly had about a variety

of crimes, including the Maxcy murder. In

December of 1981, 15 years after the crime,

Petitioner was indicted and charged with

Maxcy's murder based on Sweet's testimony

about the planning and execution of the

scheme.

By pre-trial motion, the defendant moved

to dismiss the indictment on the ground that

the State's destruction of the physical

evidence in the case, and the 15 year delay

2pefendant made a pre-trial request for Brady

material. (Defendant's Demand for Discovery,

RA 1050) The prosecution maintained that

there was none. (Response to Demand for

Discovery, RA 1052)

between the crime and the indictment, made

defense of the case impossible and violated

Petitioner's right to due process of law.

(Defendant's Motion to Dismiss Indictment, RA

1034-36; Defendant's Motion to Bar Prosecution

and Dismiss Indictment, RA 1108-12) The

motions were denied. (Transcript on Appeal,

Vol. 1, 78-80, 105)

The case went to trial with Sweet as the

State's chief witness. The jury declared

itself unable to reach a verdict, and,

although a verdict-urging instruction was

given, no verdict was reached and a mistrial

was declared.

Petitioner's second trial began in March

of 1984. Sweet, the admitted masterniind of

the Maxcy murder, was again the State's key

witness. Having been granted immunity for

that murder, for the perjury he had committed

in the course of his two previous trials for

that crime, and for a host of other crimes

including breaking and entering, narcotics

Crimes, larceny, arson, bribery, bookmaking,

giving false statements to police, and

ownership of counterfeiting plates, he

testified that, on Irene Maxcy's urging, he

contacted one Walter Bennett to arrange for

Maxcy's murder. Bennett quoted a price of

$20,000 for the job -- $5,000 front money and

the balance after the job was completed; Sweet

paid the front money.

Thereafter, Von Etter met with Sweet in

Florida. Sweet showed Von Etter the Maxcy's

home and gave him a description of Maxcy.

The evening before the murder, Sweet

testified, he received a call from Von Etter

whe reported that his "friend" was there and

that the killing would occur the following

day. Sweet arranged to meet Von Etter at a

Sebring shopping center the following

afternoon.

According to Sweet, Von Etter and another

man arrived at the shopping center as agreed.

According to Sweet, a "big fellow" came over

to his car and proclaimed, "I'm Bill Kelley.

I'm here to kill Von Maxcy."

Von Etter, Sweet, and according to Sweet,

Petitioner, drove to Maxcy's house. Sweet

testified that, on arriving there, Petitioner,

who was wearing a “glove on one hand," opened

his satchel to display several knives and

revolvers. Sweet testified that he left the

scene.

Sweet stated that he paid Bennett and Von

Etter the remaining $15,000 in Boston several

weeks later. He also testified that two or

three years later, he returned to

Massachusetts, ran into Bennett's wife, and

learned Kelley's address from her. He went to

that adaress, left his telephone numter, and

later Kelley contacted him. According to

Sweet, Kelley and he met and Kelley told him

what had happened at the Maxcy house.

According to Sweet, Kelley told Sweet, "Boy,

he was a powerful guy. I stabbed him three or

four times and he kept coming after us, so I

had to shoot him in the head."

On cross-examination, Sweet testified

that the first time he had told anybody about

his involvement in the Maxcy murder was in

February 1981 when he spoke to the police in

Massachusetts. Specifically, he aenied

vigorously and repeatedly having admitted his

involvement to Ake Namia, a private

investigator hired by Sweet's defense attorney

to assist him at the time of Sweet's own

trials for the Maxcy murder.

eT:

Nevertheless, and over defense objection

to this prejudicial and inadmissible hearsay,

Namia was permitted to testify as the State's

final witness. (Transcript on Appeal, Vol.

5, 764-65) He testified that he had met Sweet

before Sweet's first trial when he was

employed by Sweet's attorney as an

investigator. He testified that Sweet had

accompanied him to Boston and had shown him

Kelley's residence. According to Namia,

during this trip, Sweet had told him all about

the Maxcy murder, including Kelley's

involvement in it. Namia claimed that he had

“11-

told Sweet's lawyer, deceased at the time of

Kelley's trial, what Sweet had told him abou

his and Kelley's involvement. Namia claime:

he was “absolutely sure” that he had written

extensive notes about this trip, specifically

including what Sweet had told him and that he

-~ ~ — on : Cc 7 = ei “7 5

had given those notes to Sweet's Lawyer. But

when his reports were located by the defense

at the warehouse where Sweet

records were stored, they contained not a

Single word adout anything Sweet had alleged

told him during the trip.

" — : 5 | » if r Co A Kelley (

No physical evidence connected Kelley to

+he crime Nic Jentif ‘arinar eayvyidence niacs

-4i¢ -i LINC « wU LGentlilrication =v BLUVUCSTIICE JLAaAvCe

nin tC or near tne crime scene.4 Inus, tne

4It was not disputed that sc 2ne using the

name "Bill Kelley” was in Fl

Etter on October 3, but Peti

it was not he.

The then 17 year old daughter of the

manager of the Daytona motel where Von Etter

and "Bill Kelley” stayed described "Bil

Kelley” as a 40 year old man; Petitioner was

= ct

-12-

ate

sah ef

ae ee ee a eee ee NL

State's case against Kelley rested entirely on

Sweet's credibility.

After some deliberations, the jury

returned and reported that it was at an

impasse. The court gave a verdict-urging

instruction, which went well beyond the

approved Florida inetcutih the and beyond the

ultimately unsuccessful verdict urging

instruction given when Kelley's first jury

reported itself deadlocked.

Thereafter, the jury sent a question to

the judge, asking whether Sweet had received

immunity in Florida for first degree murder

and perjury before providing information in

(footnote continued from previous page)

23 in 1966. Her description of "Bill Kelley"

Gid not match the Petitioner's description.

She was not asked to and did not identify the

Petitioner. Similarly, Von Etter's widow

testified that on October 4 she had driven

back to Massachusetts Lrom Florida with Von

Etter and "Bill Kelley," whom she had not met

prior to this trip to Florida. She too was

not asked to, and did not, identify

Petitioner,

-13-

the Maxcy case, and if he had anything to gain

by his testimony. (Transcript on Appeal, Vol.

6, 925) Although the pekord was clear that

Sweet had received immunity for those crimes,

the trial judge declined to answer the

question or to read back any or all of Sweet's

testimony. Rather, the court advised the

jurors that they could request that testimony

be read back to them if they could designate

with precision what testimony they wanted to

have read back and if the testimony requested

was not too lengthy. The jury made no further

request.

The jury thereafter returned with its

guilty verdict. (Id. at 937) After a further

brief hearing before the jury, the jury

rendered, by a vote of 8-3, an advisory

sentence recommending that the death penalty

be imposed. (Id. at 985) The judge then

sentenced Kelley to be put to death. (Id. at

1007)9

The Supreme Court of Florida affirmed the

conviction and the death sentence. It

rejected Petitioner's claim that the State's

intentional destruction of the real evidence

of a crime committed in 1966 violated

Petitioner's due process rights. (A-6) In

°The trial court's findings of fact are set

forth in the Appendix at A-20. The trial

court found three statutory aggravating

Circumstances. First, the murder was

committed for pecuniary gain. Second, it was

committed in a cold, calculated and

premeditated manner, without any pretense of

moral or legal justification. Third, Kelley

was “previously convicted of a felony

involving the use or threat of violence to the

person, in that he was convicted of conspiracy

to rob in the state of Massachusetts in 1959,

and on the same date convicted of robbery."

The record discloses no more about that crime

than that it was committed 25 years earlier,

when the defendant was less than 17 years old

and involved $114 and a six-pack of beer.

(Transcript on-Appeal, Vol. 6, 956, 972) The

court found no statutory mitigating and one

non-statutory mitigating factor: none of the

others involved in the crime had received

punishment. (Id. at 1001)

-15<

reaching its conclusion the court employed a

"variable standard analysis" "balancing any

negligent Or culipatle conduct of the

prosecutor with any prejudice resulting to the

aefendant from the destructicn of the

evidence." (A-5) calling the destruction of

the evidence in this case "unfortunate" and

announcing itself "extremely hesitant to

condone the State's behavior," the Court

concluded that its acts were not negligent in

light of the fact that the State did not have

sufficient evidence to proceed against Kelley

until Sweet offered his testimony in 1981 and

the destruction of the evidence took place

nearly nine and one-half years after the

state's efforts to convict Sweet and five

years before Kelley's indictment.

The Court also concluded that

The State has met its burden of

establishing lack of prejudice

to the appellant's case.

Phrased alternatively, we find

-16-

jee ian Ac eral

ee ul

Tee ae Nn ao aria ee

that appellant has failed to

justify a reversal of his

conviction.

(A-€)

In so concluding, the Court explicitly

deferred to the "findings of the trial court,"

contending that "the court below specifically

found that the destruction of the particular

eviaence here in question did not prejudice

appellant's case, or create an otherwise non-

existent reasonable doubt." Id. The record

establishes however, that the trial court made

no such findings.®

6wWe have combed the record and found no such

ruling by the trial court. The trial court's

ruling on the matter is an oral ruling made

prior to trial denying the pre-trial motion to

cismiss the indictment. (Transcript on Appeal,

Vol. 1, 78-80) That ruling is set forth, in

its entirety, at A-16-19, and could not

possibly have been an evaluation of the

agestroyed evidence in the context of the case,

for the trial had not yet begun. The trial

court again made reference to the evidence

which had been destroyed in rejecting the

defendant's contention in the penalty phase

that the destruction of the evidence should ke

considered a mitigating circumstance. The

(footnote continued)

The Court also found no error in the

aamission of Namia's testimony as prior

consistent statements of Sweet to rebut an

inference of recent fabrication or imprcper

motive established through Sweet's cross-

examination. (A-7) Ignoring entirely

Petitioner's contention that, because Sweet

had denied making any such statements to

Namia, the statements could not serve the

purpose for which they were offered, that is,

to rehabilitate an impeached witness, the

Court, again deferring to the discretion of

the trial court,’ found that the Petitioner

(footnote continued from previous page)

court stated only “the missing evidence did

not affect or cloud the issues sufficiently to

be treated as a mitigating factor."

(Transcript on Appeal, Vol.6, 1006)

The deference is again unjustified by the

record for the trial judge, ruling on the

defense motion in limine to exclude tiamia's

testimony, said only:

"I am going to deny the motion.

After all, we don't want to

(Footnote continued)

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REASONS FOR GRANTING THE WRIT

POINT I

THE FLORIDA SUFREME COURT

APPLIED A CONSTITUTIONALLY

IMPERMISSIELE STANDARD IN

ASSESSING WHETHER THE STATE'S

DESTRUCTION OF ALL OF THE REAL

EVIDENCE IN THE CASE DEPRIVED

PETITIONER OF A FAIR TRIAL

1. Introauction

Petitioner, William Harold Kelley, who

has consistently proclaimed his innocence, was

unable to prepare and present an effective

Gefense to capital charges of murder. He was

fatally crippled by a combination of

government-created handicaps, including the

jovernment’s intentional destruction nine and

a half years after the murder and five years

before his indictment, of all of the real

evidence relating to the murder, an 18-year

delay between the crime and the trial, and the

jovernment’s exploitative use of the missing

evidence against him at trial. Recognizing

-20-

that the “serious constitutional rights"

involved in this case raise "grave concerns as

to fairness," the Florida Supreme Court aptly

termed this case "highly unusual," indeed, "a

case of first impression." In rejecting

Petitioner's appeal, however, the Supreme

Court of Florida employed an

unconstitutionally stringent standard to

evaluate Petitioner's destruction of evidence

claims, one which permitted it to avoid any

specific consideration of the impact of the

destroyed evidence on the trial. Because the

totality of the circumstances here are clearly

"sufficient to undermine confidence in the

outcome" of Petitioner's trial, United States

v. Bagley, 105 S.Ct. 3375, 3384 (1985), the

conviction should be reversed.

2. The Supreme Court of Florida Applied an

Unconstituticnally Stringent Standard in

Evaluating Petitioner's Destruction of

Evidence Claim,

In reviewing a claim that lack of access

-21-

to exculpatory evidence deprived a defendant

of due process, the critical question for the

reviewing court is not "the moral culpability

or willfulness of the prosecutor," but the

resulting harm to the defendant. United

States v. Agurs, 427 U.S. 97, 110 (1976).

"(T]he suppression by the prosecution of

evidence favorable to the accused upon request

violates due process where the evidence is

material either to guilt or to punishment,

irrespective of the good faith or bad faith of

the prosecution." Brady v. Maryland, 373 U.S.

83, 87 (1963) (emphasis added). If the

Suppression or destruction of evidence results

in constitutional error, “it is because of the

character of the evidence, not the character

of the prosecutor." United States v. Agurs,

Supra, 427 U.S. at 110. In this case, the

Florida Supreme Court focused impermissibly on

the character of the prosecutor, wholly

ignoring the character of the evidence.

After concluding that the government's

conduct, though unfortunate, was excusable,?

the Florida Court in effect declared that a

new trial would have been required had there

been any governmental bad faith: "We wish to

emphasize, however, that if even the slightest

hint of prosecutorial misconduct was present

in the case the result might well be

different." (A-6) Although the Court evidently

found the case to be a close one, its findings

of governmental good faith tipped the balance

against reversal. The Florida Court's

Standard thus directly conflicts with this

Court's clear holdings that the propriety of

the government's behavior is irrelevant to the

2Petitioner vigorously disputes the Court's

finding that the government's behavior was

"excusable". The Court relied on its finding

that Petitioner's eventual prosecution was

"unforeseeable" when the evidence was

destroyed in 1976. In fact, the evidence

against Kelley was both known and available as

a matter of law. See infra at 37 at n.18.

reviewing court's “overriding concern with the

justice of the findiag of guilt." United

States v. Agurs, surra, 427 U.S. at 112.

In determining that no reversible error

occurred here, the Florida Supreme Court

explicitly employed “an analysis balancing any

negligent or culpable conduct of the

prosecutor with any prejudice to the defendant

from the destruction of evidence." (A-5) This

variable analysis test operates like a seesaw:

as the level of the government's bad faith

goes up, the level of prejudice the defendant

must show goes down. More important as the

level of bad faith goes down, the defendant

must make a greater showing of prejudice to

obtain reversal.!9 Under this Standard, once

'Ophe Florida Court explicitly relied on

Salvatore v. State, 366 So.2d 745,751 (Fla.

1978), cert. denied, 444 U.S. 885 (1979),

which states that “more excusable conduct of

the prosecutor -- such as mere negligence --

calls for a showing of greater prejudice to

the defendant before relief will be granted."

-24-

a determination of good faith is made, the

reviewing court is free to examine an

appellant's claim of prejudice quite

peremptorily, for unless an extraordinary

showing is made, no reversal will be

required.!1

In this case, the Florida Supreme Court

applied its unconstitutional "sliding scale"

to Petitioner's direct detriment. Once having

found good faith, the court summarily

dismissed Petitioner's claim of prejudice

without reaching or specifically determining

whether the missing evidence was material.

IHad the Plorida Court's Variable seesaw

operated in one direction only, used solely to

expand the protection given to defendants by

lowering the prejudicial showing which must be

made, there would be no constitutional

infirmity. State courts are free to provide

greater protection to defendants than that

guaranteed by federal courts. See, e.g.

Michigan v. Lon 463 U.S. 1032 “LEE Oregon

v. Hass, 420 U.S. 714, 719 (1975). Here,

however, the seesaw works both ways, Operating

in this case to raise Petitioner's burden

impermissibly.

-25-

The court deferred without discussion to the

trial court, which, it said, had "specifically

found that the destruction of the particular

evidence here in question did not prejudice

appellant’s case ..." In fact the record

plainly shows that no such specific finding

was ever made by the trial court, either

before or after the trial,12

The Fiorida Court's holding and analysis

are not saved by the fact that this case

involves destruction rather than Suppression

of evidence, and thus arguably falls within

the ambit of Trombetta, rather than Brady,

'2tndeed, in denying Petitioner's pre-trial

motion to dismiss the indictment, the trial

court explicitly left open the possibility

that as the evidence was developed at trial,

"there may well be a point in this trial when

some of these items will become apparent that

there is prejudice." (A-18) Although

determinations of materiality are best made

after trial, in light of all the evidence

adduced at trial, United States yv.

Valenzuela-Bernal, 458 U.S. 658, 874 (1982),

no specific post-trial findings cn this issue

were ever made,

-26-

ee ld

Agurs, or Bagley. It may be argued that

because the Trombetta opinion acknowledged

state officials’ apparent good faith, 104 s.

Ct. at 2534, it established a separate

standard for assessing destruction of evidence

claims, one which considers both the

prosecutor's good or bad faith and the

materiality of the missing evidence, while the

standard for suppression claims considers

materiality alone.!3

13In Trombetta, this Court noted that, in

destroying breath samples, state officials

acted "in good faith and in accord with their

normal practices," and were not involved in a

"calculated effort to circumvent" Brady's

disclosure requirements. 104 S.Ct. at 2534.

Additionally, “the record contains no

allegations of official animus toward

respondents or of a conscious effort to

Suppress exculpatory evidence." Id. A close

reading of the Trombetta opinion, however,

indicates that when the Court moved on to the

"more important" issue of whether the policy

at issue was “without constitutional Gefect,"

the emphasis was wholly on materiality, that

is, on the impact of the destruction at trial,

and no further mention of good or bad faith

was made. Id. Thus, any conflict between

Trombetta and Agurs is more apparent than

(footnote continued)

-2J=-

In this case, had the government retained

the real evidence relating to the murder, but

failed to disclose it until after the trial,

the obvious prejudice to Petitioner would

surely entitle him to reversal. The fact that

the evidence was destroyed rather than

suppressed should not change the result by

permitting the reviewing court to factor the

government's “good faith" into its evaluation.

The Florida court's "seesaw" standard,

however, permits precisely this divergence of

result, because it is premised on an improper

willingness to raise or lower the showing of

prejudice a defendant must make based on the

prosecutor's good or bad faith. The Supreme

Court of Florida's opinion in this case thus

reflects a fundamental misunderstanding or

misapplication of federal constitutional

(footnote continued from previous page)

real; the bottom line of both decisions is the

same focus on result.

-28-

oe rs |

principles.

Because there is a possible conflict

petween the good-faith language in Trombetta

anc this Court's result-oriented holdings in

Brady, Agurs and Bagley, State and federal

courts may be confused as to the standard to

apply in assessing destruction of evidence

cases and may apply an unconstitutionally

Stringent standard which focuses improperly on

the government's good or bad faith. The

Supreme Court of Florida has developed an

improper standard, and, by applying it to

Petitioner's claim, has deprived him of his

constitutional rights. This case thus oresents

an excellent opportunity for this Court to

resolve the apparent conflict and Clarify the

standard or standards to be applied in

evaluating suppression and destruction of

evidence claims.

-29-

PCS el EL RR ETP

3. The Government's Intentional Destruction of

all of the Real Evidence Relating to the

Murder Deprived Petitioner of Due Process and

a Fair Trial.

The evidence destroyed before

Petitioner's trial included all of the real a

evidence relating to the murder. In 1976, five

years before Petitioner was indicted, the

government requested and obtained court

permission to destroy the evidence from

Sweet's trial, attesting that "this cause has

been disposed of" and asserting a shortage of

storage space. The government then destroyed

all of the physical items taken from the

actual murder site, including a spent bullet,

a bloody bedsheet, and a portion of the

victim's shirt./4 Clearly, by 1976, more than

'4mhe items destroyed were all of the

government's exhibits from John Sweet's 1968

trial. In addition, the government's

investigative files contained other real

evidence relating to the crime, including the

brake pedal of a car Petitioner allegedly

agrove from the murder scene, fingernail

scrapings and hair samples and carpeting from

(footnote continued)

«30-

nine years after the murder, and even more

surely by 1981 when Petitioner was indicted,

no amount of further investigation could

produce new physical evidence about the murder

scene itself; whatever once existed was either

in the government's possession or had

disappeared years earlier. By destroying the

evidence it possessed, therefore, the

government effectively eliminated every shred

of physical evidence Petitioner might have

used to prove that he was not at the murder

scene. The missing evidence would have been

central to Petitioner's defense. At trial,

Petitioner stressed the obvious conflict

between the blood-splattered murder scene and

"Bill Kelley's" appearance, with no

Oloodstains of any kind, shortly after the

(Footnote continued from previous page)

the victim's home. The government made no

effort to preserve these items, and by the

time of Petitioner's trial in 1984, the

government was unable to produce them; they

too had been lost or destroyed,

«31-

alleged time of the murder. Whoever stabbed

Maxcy must have been covered with blood; Von

Etter's companion was not, therefore even if

that companion were Petitioner, he could not

have been the killer. One obviously

exculpatory item was the blood-stained

hedsheet, slit or cut in numerous places,

found at the murder scene. The government

contended that the sheet had been wrapped

around Maxcy to subdue him, and that he was

Stabbed through it. Had the sheet been

available, Petitioner could have had it

examined by experts, who could have testified

that whoever stabbed Maxcy through the sneet

would have been stained with blood.!5 Without

\SIndeed, when Petitioner tried to elicit

testimony from a police witness that the blood

must have gone through the sheet onto the

attacker, the court sustained an objection on

the ground that that such a question called

for a conclusion. Transcript on Appeal, Vol.

3, 504. Had the sheet been available for

expert analysis, Petitioner might well have

been able to introduce an expert conclusion on

(footnote continued)

a3 20

the sheet itself, or expert analyses of it to

support his claim, Petitioner could not

demonstrate convincingly that Maxcy's murderer

must have emerged from the scene literally

drenched in blood. 16

While Petitioner was thus prevented from

using the sheet to demonstrate his innocence,

the prosecutor refused to be similarly

restricted; he attempted to use the absent

sheet to demonstrate Petitioner's guilt. In

(footnote continued from previous page)

exactly this issue. Without it, of course,

any characterization of the sheet to the jury

by witness or prosecutor, was based on

speculation.

16petitioner could also have had the destroyed

evidence tested for fingerprints and blood

types; he could have had an expert examine the

size and direction of the slits. The absence

of Petitioner's fingerprints or blood from the

scene, or the presence of someone else's,

would have provided convincing evidence that

Petitioner did not stab Maxcy, and might have

provided evidence of who the murderer actually

was. Moreover, an expert analysis of the

sheet could have demonstrated that the murder

was committed by someone smaller or weaker

than Petitioner or left handed.

o3 3<

his closing, the prosecutor exploited the

government's destruction of precisely the same

sheet by insinuating to the jury that it was

the sheet itself that prevented Petitioner

from becoming bloodstained, because the sheet

would have absorbed the victim's blood.

Without the sheet, Petitioner had no

affirmative evidence to rebut the prosecutor's

improper insinuations. Thus, the government

first destroyed the evidence and then drew

adverse inferences about it to the jury.!7 A

more prejudicial situation would be difficult

to imagine.

\7The result here is thus exactly the opp.site

of the general rule that one party's failure

to proauce a favorable witness or evidence,

where it is peculiarly within that party's

power to do so, creates an inference that the

evidence or testimony would have been

unfavorable to the party who failed to produce

it. Graves v. United States, 150 U.S. 118,

121 (1893); United States v. Charles, 738 F.2d

686 (5th Cir. 1984); McCormick on Evidence

§272 at 804-06 (3d ed. 1984). 4Yere the

government -both created the unavailability and

profited from it.

-34-

4. The Extraordinary Length of Time before

Indictment and the Weakness of the

Government's Case Against Petitioner

Exacerbated the Prejudice to him from the

Government's Destruction of Critical

Exculpatory Evidence.

The prejudicial impact to Petitioner of

the government's destruction of the real

evidence in this case was exacerbated by the

enormous amount of time -- 18 years -- between

the crime and Petitioner's trial. With the

passage of each year, Petitioner‘s ability to

mount an effective defense necessarily

weakened. Witnesses' memories faded.

Potential witnesses died or could no longer be

located. Any possibility of discovering new

evidence disappeared.

Ordinarily, an appropriate statute of

limitations helps prevent a miscarriage of

justice from occurring where an innocent

defendant is brought to trial long after the

evidence and testimony necessary to prove his

innocence have disappeared. United States v.

-35-

Marion, 404 U.S. 307, 322 (1971); Toussie v.

United States, 397 U.S. 112, 114-15 (1970).

Because there is no statute of limitations for

murder in Florida, there is no statutory bar

to bringing a suspect to trial at any time.

The government’s entitlement to try a murder

case many years after the crime is not

unlimited, hnowever; the defendant retains

forever his constitutional right to due

process and a fair trial, and the legitimacy

of any long-delayed murder prosecution must be

measured against that due process standard.

When the evidence relating to the murder

becomes so stale that a fair trial is no

longer possidle, the government can, indeed

must, decide to close the case, and with it

the possibility of further prosecution.

Here, the government made exactly this

determination in 1976, nine years after the

murder, when it attested to the court that

"this cause has been disposed of" and

destroyed its files of real evidence. When

that determination was made, the case against

Petitioner was fully known, and all of the

evidence later introduced against him was

available, as a matter of law.!8 By closing

the “cause" and destroying the evidence, the

government graphically declared that, in its

18petitioner had been a prime Suspect in this

case since the original investigation in 1966.

He was not tried then because, as the

government admitted, its case against him was

completely insufficient. By 1976, all charges

against Sweet, the government's star witness

against Petitioner, had been dronped. Sweet's

alleged connection with Petitioner was fully

Known, as was the substance of any testimony

Sweet might vorovide. Had the government

wished to proceed against Petitioner, it could

have subpcenaed Sweet, and, through

negotiation or grant of immunity, obtained his

testimony. As courts have repeatedly held,

the testimony of a witness who suddenly

volunteers to testify after having refused to

do so at trial is not "newly discovered

evidence" entitling a defendant to a new

trial. See, e.g., United States v. Diggs, 649

F.2d 731, 740 (9th Cir. 1981); Unitea States

v. Jacobs, 475 F.2d 270, 286 (2a Cir.), cert.

denied, 414 U.S. 821 (1973). As a matter of

law, Such testimony was therefore always

available to the prosecution,

judgment, there could be no further

prosecutions for the Maxcy murder. This

decision was clearly legitimate; iad the

government abided by it, no due process

violation would nave occurred, Instead,

however, the government trieda to nave it both

ways, asserting that because the case was

closed, all the relevant real evidence might

be destroyed, and then counter-asserting nine

years later that the case was not totally

closed after all, even though, by then,

because of space shortages, it had destroyed

the only kind of evidence which might have

been useful after all these years. Indeed,

this case raises the terrifying possibility

that an innocent man may have teen convicted

-- and may be executed -- because the court

clerk ran out of storage space,

Moreover, the governmental decision to

destroy the evidence in this case appears to

-38-

have been essentially clerical, made for

convenience only. There is no indication that

any responsible official ever paused to

consider the impact such an action might have

on any prosecution of Petitioner, who was

admittedly still an "active suspect." Because

the destruction occurred five years before

Petitioner's indictment, he was of course

unable to object or to request that the

evidence be retained. In such a situation,

the government's obligation must transcend the

merely adversarial; it must ensure that a

miscarriage of justice does not occur. See,

e.g., United States v. Bagley, 105 S.Ct. 3375,

3380 (1985); Beryer v. United States, 295 U.S.

78, 88 (1935). Here, a miscarriage of justice

did occur when the government sought and

obtained Petitioner's conviction years after

destroying critical exculpatory evidence to

Suit its own administrative convenience,

-39-

Because the government's case against

Petitioner was extremely weak, there is a

particularly strong likelinood that the jury

would have reached a different result had the

missing evidence been presented. A first

trial ended in a mistrial when the jurors,

despite extended deliberations and judicial

urgings, were unable to reach a consensus on

Petitioner's guilt. At the second trial, the

jury announced that it too was deadlocked.

Had the inculpatory evidence in this case

been overwhelming, the destruction of certain

exculpatory items might be said to have had

only a slight impact on the verdict. "On the

other hand, if the verdict is already of

questionable validity, additional evidence of

relatively minor importance might be

sufficient to create a reasonable doubt."

United States v. Agurs, supra, 427 U.S. at 113

(1976). Here, the case against Petitioner was

-40-

unguestionably close. Moreover, the missing

evidence was not a single item, or one of

"Minor importance", as in many suppression or

destruction of evidence cases; 19 instead it

included all of the real evidence relating to

the murder scene. If even one item had proven

to be significantly exculpatory, it is highly

procable that a guilty verdict would not have

been returned,

19see, e.g., California v. Trombetta, 467 U.S.

479, 104 S.Ct. 2528 (1984) (breath sample);

Killian v. United States, 368 U.S. 231 (1961)

(notes covering one witness's oral reports

regarding expenses).

POINT II

THE ADMISSION OF THIRD PARTY

TESTIMONY PURPORTEDLY AS A

PRIOR CONSISTENT STATEMENT

WHERE THE DECLARANT DENIED

MAKING THE STATEMENT VIOLATED

PETITIONER'S CONSTITUTIONAL

RIGHTS TO DUE PROCESS AND

CONFRONTATION

Abe Namia, a private investigator hired

by John Sweet's attorney after Sweet was

charged with the murder of Charles Von Maxcy,

gave extremely damaging but extraordinarily

questionable testimony. Despite Sweet's

viyorous denial that he ever told Namia the

details of the murder and of Petitioner's

alleged involvement, Namia was allowed over

objection to describe alleged conversations

with Sweet in which Sweet had done just that.

Through Namia's testimony, Sweet's

inculpatory claim was allegedly confirmea. In

addition, through Namia's hearsay testimony,

facts which Sweet either denied cr had no

recollection of were presented to the jury.

~42—

Whatever justification might arguably exist

for the admission into evidence of a witness'

prior consistent statements, no recognized

justification exists for admitting new

evidentary facts through this device.

Despite the fact that Sweet denied ever

engaging in conversations with Namia

incriminating himself and Kelley, and that

Namia's testimony included matters not

testified to by Sweet at this trial, the

Supreme Court of Florida ruled that Namia's

testimony was properly admitted as a prior

consistent statement under Section

90.801(2)(b) of the Florida Statutes.

Section 90.801(2)(b) is virtually

identical to Fed. R. Evid. 801(d)(1)(B). A

precondition to admissibility under

90.801(2)(b) of the Florida Statutes, as under

Rule 801(d)(1) of the Federal Rules, is that

the declarant testifies at the trial or

-43-

hearing and is subject to cross-examination

concerning the statement. Both rules provide

that prior consistent statements of a witness

are not hearsay if offered to rebut a charge

of recent fabrication. They require that the

out-of-court statement by the declarant be

"consistent with his testimony." Out-of-court

statements reiterated during in-court

testimony are regarded as adopted by the

witness and are either excluded from the

definition of hearsay or admissible as an

exception to the hearsay rule because the

declarant is subjected to the rigors of

cross-examination. Thus, underlying the rule

ls the requirement that the declarant testify

that he made a prior out-of-court statement

and that what he said is consistent with his

in-court testimony. As recently held by the

~44-

Seventh Circuit, after noting that many courts

allow third party rehabilitation of an

impeached declarant,

These courts neld that

801(d)(1)(B)'s third

admissibility requirement was

satisfied if the declarant had

testified and been subject to

cross-examination sometime

during trial. Rule

801(d)(1)(B), however, requires

not only that the declarant

have been generally subject to

cross-examination; he must also

be subject to cross-examination

concerning the out-of-court

declaration. We hold that the

district court erred in

permitting Howard to testify

concerning Vinson's out-of-

court statement. If the

Government wished to rebut

defendant's charge of recent

fabrication, the proper way to

do so was to elicit Vinson's

rehabilitating statement during

redirect examination or to

recall Vinson to testify during

rebuttal.

United States v. West, 670 F.2d 675, 687 (7th

Cir.), cert. denied, 457 U.S. 1124 (1982).

See also United States v. Maultasch, 596 F.2d

L> (20 Cie. i979).

-45-

Since a prior consistent statement rebuts

the inference of recent fabrication and is

considered relevant to the jury's

determination whether to relieve the in-court

testimony of the declarant, prior to deciding

whether a third party should be allowed to

testify about a prior consistent statement,

the logic of the rule requires that the

declarant assert that he made the prior

consistent statement. After all, the sole

question is the credibility of the declarant

and the credence to be given his in-court

testimony.

here, since Sweet denied making the

statement, the purpose of the Confrontation

Clause is defeated. Effective confrontation

of Sweet was only possible if Sweet claimed-he

mage the prior statement to Namia, thus

adopting the statement as nis. See Douglas v.

Alabama, 380 U.S. 415 (1965). Although there

is not necessarily a congruence between the

Confrontation Clause and the rules of hearsay,

in this context the origins of coth and the

similarity of values protected demonstrate

that Namia's testimony cannot be the basis for

a Criminal conviction.

As in the famous example involving Sir

Walter Raleigh discussed by both the majority

and Justice Harlan in California v. Green, 399

U.S. 149 (1970), when an accusatier is

reported during proceedings by a third party

and the declarant retracts (as did Raleigh's

accuser) or denies making the accusation (as

here), the vice which gave impetus to the

Confrontation Clause is presented. The

accused has no way of challenging the

accusation using cross-examination, the

greatest legal engine ever invented for the

o~47=

discovery of truth." 5 Wigmore on Evidence

§1367, quoted in California v. Green, supra,

399 U.S. at 158.

The harm is devastating if one assumes

that Sweet in fact made the out-of-court

statements about which Namia testified because

those statements were not made in a context

which gives any assurance of reliability.

They were not made under oath or subject to

cross-examination yet they were undoubtedly

considered by the jury for the truth of the

matters asserted. In a capital case,

admission of such testimony is particularly

orejudicial. There was no way for Petitioner

to have tented the recollection and motives of

his accuser Sweet, when Sweet denied making

the statements to Namia. Cross-examination of

Namia could not serve to challenge the

accusation. As to facts presented by Namia

which went beyond what Sweet testified to

-48-

himself at the trial, the evil is paticularly

acute. A conviction based upon such testimony

violates due process. See California v.

Green, Supra at n.15; Thompson v. City of

Louisville, 362 U.S. 199 (1960).

Although the general rule is that prior

statements have no probative value because

"mere repetition does not supply veracity," 4

J. Weinstein & M. Berger, Weinstein's

Evidence, §801(d)(1)(B)(01), quoting United

States v. McPartlin, 595 F.2d 1321, 1351 (7th

Cir.), cert. denied, 444 U.S. 833 (1979);

United States v. Harris, 761 F.2d 394, 399

(7th Cir. 1985), here the repetition was

demonstrably harmful.

-49-

POINT III

IN THIS CASE THE DEATH PENALTY

CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT FORBIDDEN BY THE

EIGHTH AND FOURTEENTH

AMENDMENTS

Whether or not the death penalty is ever

permissible, 29 in this case it is a cruel and

unusual punishment prohibited by the Eighth

and Fourteenth Amendments.

In the extremely abbreviated sentencing

phase of this case, the jury recommended by a

divided vote, and the trial judge imposed, the

death penalty. The judge's decision was based

on a finding of three statutory aggravating

Circumstances: the crime was committed for

pecuniary gain; it was committed in a cold,

calculated and premeditated manner without any

pretense of moral or legal justification; and

20petitioner contends that it is not. See

Furman v. Georgia, 408 U.S. 238, 257 (1974)

(Brennan, J., concurring); id. at 314

(Marshall, J., concurring).

-50-

the Petitioner had previously been convicted

of a felony involving the use or threat of

violence,

Before the sentencing judge and the

tate's highest court, Petitioner raised

numerous challenges to the Florida death

penalty statute and the imposition of the

death sentence in his case, Inter alia, he

urged that the trial judge had impermissibly

multiplied aggravating factors by finding two

separate aggravating circumstances based on

the single fact that the crime was alleged to

be murder for hire; that the prosecution had

improperly argued to the advisory jury that it

could find aggravating circumstances because

the crime was especially heinous, atrocious or

Cruel and because it was committed in the

course of a burglary; that the trial judge

violated Lockett v. Ohio, 438 U.S. 586 (1978),

and Eddings v. Oklahoma, 455 U.S. 104 (1982),

-51-

by refusing to consider, as mitigating

factors, the length of time since the crime,

the impact that had on Petitioner's ability to

defend himself, and the possibility that he

was not the actual killer. He urged in

addition that Florida's death penalty statute

is unconstitutional because it is applied

arbitrarily and discriminatorily. Petitioner

also asserted that the State's death penalty

was unconstitutional because it is imnosed

unevenly on the basis of the race of the

victim, an issue presently before this Court.

See McClesky v. Kemp, No. 84-6811, cert.

Granted, July 7, 1986; Hitchcock v.

Wainwright, No. 85-6756, cert. granted, 54

U.S.L.W. 3809 (S.Ct. June 9, 1986).2!

21He also urged that the application of this

death penalty statute, not in existence at the

time of the crime, violated the Constitutional

ban on ex post facto laws.

The Supreme Court of Florida summarily

rejected all of Petitioner's challenges,

stating:

Finally, appellant raises a

number of arguments attacking

the application of the death:

penalty statute to his case and

the statute's

constitutionality. Having

carefully reviewed each of

these contentions, they are

found to be without merit.

Petitioner's claims merit review by this

Court, particularly in light of the Florida

Court's unexplained and summary rejection of

them. One of his claims -- that the death

penalty is imposed discriminatorily on the

basis of the victim's race -- is presently

before this Court. Furthermore, there is no

grinciplea way to distinguish the case, in

which the death penalty was imposed, from the

many cases in which it was not, and, thus, the

sentence cannot stand.

5 3-

In Godfrey v. Georgia, 446 U.S. 420

(1980), this Court considered whether, in

affirming the sentence of death in that case,

the Georgia Supreme Court adopted such a broad

and vague construction of the relevant

aggravating circumstances so as to violate the

Eighth and Fourteenth Amendments to the United

States Constitution. Id. at 423. Ina 6 to 3

decision, this Court reversed the death

penalty in that case. The plurality decision

~- written by Justice Stewart and joined by

Justices Blackmum, Powell and Stevens --

concluded that Godfrey's “crimes cannot be

said to have reflected a consciousness

materially more ‘depraved’ than that of any

person guilty of murder.” Id. at 433. There

was thus “no principled way to distinguish

this case, in which the death penalty was

imposed, from the many cases in which it was

not.” Id. Since a capital sentencing scheme

-54-

must provide a "meaningful basis for

distinguishing the few cases in which [the

penalty] is imposed from the many in which it

is not,” the Georgia Court's decision to

uphold the imposition of the death penalty for

Godfrey's crimes was unconstitutional. Id. at

427, quoting Gregg v. Georgia, 428 U.S. 153

(1976), and Furman v. Georgia, 408 U.S. 238,

reh. denied, 409 U.S. 902 (1972)). This Court

thus answered "no" to the question posed for

decision: "whether, in light of the facts and

circumstances of the murders [Godfrey] was

convicted of committing, the Georgia Supreme

Court can be said to nave applied a

constitutional construction" to its death

penalty statute.

This case demonstrates that Florida's

statutory scheme is similarly infirm. It is

incapable of avoiding arbitrary and capricious

infliction of the death penalty. Petitioner's

-55-

death penalty was ostensibly imposed based on

three aggravating circumstances but two of

them were essentially the same and the

remaining one is not an appropriate basis for

imposition of the death penaity.

In this particular case, because the

Crime was an alleged "murder for hire," the

statute permitted and the court below found

two aggravating circumstances (crime for

pecuniary gain, crime committed in a cold,

calculated and premeditated manner) on the

basis of essentially the same facts. The

statutory scheme thus impermissibly pyramids

aggravating circumstances and improperly

enhances the chance that aggravating

Circumstances will be found to outweigh

mitigating ones.

Finally, the death sentence was imposed

here, at least in part, on the basis of

Petitioner's previous conviction of a felony

involving the use or threat of violence to the

person. All that is known of that prior

conviction is that it occurred 25 years

earlier, when Petitioner was a 16 year old

juvenile, and that it somehow involved 114

dollars and a six-pack of beer. There is no

indication that a weapon was used to commit

the crime or that the victim was harmed.

In Godfrey v. Georgia, 446 U.S. 421

(1980), the plurality determined that the

Georgia death penalty law, under which it was

an aggravating circumstance that the crime was

outrageously or wantonly vile, horrible or

inhuman, was not tailored to avoid arbitrary

and capricious infliction of the death penalty

and to obviate standardless sentencing

discretion.

Florida's statutory scheme is similarly

arbitrary in permitting a previous conviction

for a crime involving the use or threat of

-57-

violence to be a basis for the imposition of

the death penaity. Its extremely capricious

operation is evident in that, in this case, it

permits a single 25 year old conviction for a

Single robbery the details of which are

entirely unknown to serve as the basis for a

sentence of death.

Petitioner was convicted based on the

inherently suspect uncorroborated testimony of

an accomplice given 18 years after the events,

and long after the State's destruction of the

physical evidence of the crime, evidence which

could have exculpated the aefendant. Under

these circumstances, faith in the validity of

the verdict can be shaky at best.

Nevertheless, the Petitioner has been

sentenced to die, because the crime was murder

for hire and the Petitioner -- 25 years

-58-

earlier -- was convicted of a robbery. In the

totality of these circumstances, the death

penalty is unconstitutional.

CONCLUSION

For the foregoing reasons, Petitioner

respectfully requests that this Court grant

the petition for a writ of certiorari.

VIP.

Alan M. Dershowitz

232 Brattle Street

Cambridge, MA 02138

(617) 495-4617

Wika EP neh

Nathan Z. Dershowitz

Victoria E. Eiger

Dershowitz & Eiger, P.C.

225 Broadway

(212) 513-7676

Laura Hanft

Of Counsel

Dated: July 9, 19386

-60-

APPENDIX

EDITOR'S NOTE

PAGES -| he A-/5 WERE POOR

HARD COPY AT TH TIME OF FILMLNG.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

Supreme Court of florida

No. 65,134

WILLIAM BAROLD KELLEY, Appellant,

vs.

STATE OF FLORIDA, Appellee.

ADKINS, J.

William Kelley appeals his conviction for the first-degree

murcer of Charlies V. Maxcy and the death sentence imposed. We

have surisdiction. Art. Ve § Jib) (1), Fla. Const.

Appellant's conviction regresented the resolution of «

hagmay unusuel case, fhising some unusual issues. Appellan= was

indicted in December of 1981 for the Maxzcy murder, committed in

October of 1966 An @xplanstion of this celay in prosecuticr

SeGusrtes a6 examination of the figures invoivec an¢d the evicence

eccucec st appeliant’s trial.

Jonn Sweet, involved in ap illicit love affeir with Irene

the victig’s wife, planned the murder so thet he anc she coulé

.ive together on Maxcy'’s inheritance. ‘Towards this end, Sweet

cor actec @ Walter Bernec= in Massechusettis anc sete «ne

necessary arrangements A pr.c@ was wet. and in early October of

4966 appelian= Keliey and one Yon Ecter cserried out tne sinister

Setecse prosecutcrs found she evi¢ense insifficient ¢t

procees sgGsinet eprellant end Yon Etter, and dsecause irene Maacy

received immunity in recurn for her testimony in the case, only

Sweet was originally tried. Sis first trial rcesulced ina

@istrisal, and the conviction resulting ‘row nis second trial was

ceversed on appeal. Swewet v. State, 235 So.i:d 40 (Fla. 26 DCA),

cer=. denied, 239 S$o.24 267 (Fla. 1970).

At tbat point, the state felt unable to proceed sgainse

Sweet due to the lapse of tipze anc the loss of cercain witnesses’

testimony. Thus, the case lay doorman: for over ten years. This

standstill was broken only after Sweet, in 1981, became involved

in a Criminal situation he found threstening and approached law

enforcement suthorities in order to seek some protection by

receiving igmunity in seturn for his testimony as to a wide

variety of crimes.

It was this testimony upon which eppellant’s indictment

and prosecution in this case were centrally based. Sweet

testified as to the details of the planning and execution of the

murder, as well as to s purported conversation with appellant

several yeers after the murder in which sppellant allegedly said

“Boy, (Maxcy) was «@ powerful guy. I stabbed his three or four

times anc he kept coming after us, so I hed to shoot his in the

head.” The other central testimonial evidence presented in

appellant's trial below was that of one Abe Namia, & private

Getective originally hired efter the surder by Sweet's defense

counsel. Nazis testified as to some purporcec statements of

Sweet's mace in 1967 incriminseting appellanc. The statecents

were ecmittec to rebuc en inference of recent fabricaticcs

escablishec by the rigorous cross-examination of Sweet ae to his

ex-ensive immucicy and possible motives to fabricate.

Appellant's first trial ended in « mistrial, the jury

unaSle to agree on a verdict. Bis seconé trial began in March of

1964. In che verdic: presently appesled, «he jury founc Kelley

guilisy of ‘first-cegree surder and recommended che death penalty.

in horcil 19894, the trie) judge filed his wratcen findings of facz

im support of the deat, penalcy. Be found three statutory

eggravaecting circumstances: prior conviction of # violent: felony,

sestson 921.14115) ib), Fiorsada Statuses (1983): nowicitze commited

for pecuniary gain, section 921.141(5)(£); and homicide committed

an @ cold, calculated, end premeditated manner without any

pretense of moral or legal justification, section 921.141(5) (i).

AS & nOnstatutory mitigating circumstance he found chat appellant

was the only participant in the murder to receive punishzent.

Appellant raises a number of attacks on the trial of his

case and the sentence imposed, alleging a number of prejudicial

@rrors spanning from the time period well before his indictment

to the case's conclusion. These contentions will be explored in

the order presented.

Appellant first argues that the state's destruction of the

real evidence in the case over five years before his indictment

deprived him of due process of law and frustrated the preparation

of his defense. In addressing this contention, the unusual

procedural history resulting in this problem must be considered.

Azter the reversal of Sweet's second conviction on appeal,

he successfully moved for the dismissal of his indictment. At

that point, with so active suspects capable of prosecution, the

case file, including the evidence involved, was transmit-ed to

tne clerk of the court for maintenance. The evidence there

remained until April of 1976, nine and a haif years after the

murcer. At that point the state, at the clerk's request, moved

for am order requesting the court's permission to dispose of the

evicence. The state's motion, indicating that “this cause has

been disposed of,” was granted and the evidence destroyed. The

case subsequently lay dcrmant uptil Sweet's testimony against

sppeliant Kelley revitalized the prosecution in 1981.

Tne destroyed evidence which appellant claims may have had

particular exculpatory value was real evidence, principally taken

from the scene of the crime -- a bullet, a bloody bedsheet

purporcedly used tc supcue the victim during repeated stabbings,

anc a shred of the victim's shirz. Also destroved were <wo

handwristten statezen=s by Sweet, which appellant urges would have

been useful ip impeachment. Copies of the documentary evidence .

in the case, by far the bulk of the evidence presented at the

A-3

-j<-

earlier Sweet trials, were preserved and used against appellant

in the trial below.

Appellant argues that the state's intentional destruction

of the evidence of Maxcy's killing over five years before his

indictment for a murder committed in 1966 so violated his due

process rights that his isdicscment should have been dismissec.

While recognizing that serious constitutional rights are involved

in this question, and that the trial of a capital case in the

absence of physical evidence raises grave concerns as to

fairness, we cannot agree that in this case appellant's due

process rights have been violated.

In resolving the serious problems involved when evidence

once in the possession of the state is either lost or suppressed,

Florida's courts have built their analyses upon the United States

Supreme Court's decisions of Brady v. Maryland, 373 0.S. 83

(1963), and United States v. Agurs, 427 0.S. 97 (1976). Brady

laid down the proposition that "(T]he suppression by ‘he

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material sither to

guilt or punishment, irrespective of the good faith or bad faith

of the prosecution.” 373 U.S. at 67.

The Agurs Court refined the Brady holding by exploring the

concept of constitutional “materiality.°® The bottom line concern

in a@ suppressed evidence case, the Court made clear, is the

justace of the finding of guilt. I1£, upon consideration cf the

reccrd as a who.e, the enizced evidence creates a reasonable

doubt not otherwise existing, the evidence is material and

constitutional error has been committed. Ous process rights are

not violated in every case involving the suppression of evidence.

“The mere possibility thac an item of undisclosed information

might :.ave helped the defense, or might have affected the cutcome

of the trial, does not establish ‘mater:ality’ in the

constitutional sense.” 427 U.S. at 109-10.

In’ State v. Scdel, 363 So.2d4 324 (Fla. 1978), this Court

utilizec thac language from Agurs in formulating an analysis

applicable to the issue of appropriate sanctions when the state

4-4

hae destroyed evidence. Recognizing that “dismissal of charges

against a defendant. . .waa an extreme sanction to be utilized

with the greatest caution and deliberation,” Sobel, 363 So.2d at

327, thas Court approved an analysis balancing any negligent or

culpable conduct of the prosecutor with any prejudice resulting

to the defendant from the destruction of the evidence. Fairness

Gactated that the burden be placed on the stace to prove lacx of

prejudice to the defendant, if it 80 contended.

In Salvatore v. State, 366 $o.2d 745 (Pla. 1978), cert.

denied, 444 U.S. 865 (1979), we reiterated this balancing

standard, implicitly recognizing that each of the factors

considered reflected different aspects of the same fundamental

concern -- that the defendant received a fair trial. The

standard of prejudice which must be met by the defendant, we

held, varies inversely with the degree to which the conduct of

the trial below has violated fundamental notions of fairness. In

Salvatore, finding no negligence on the part of the prosecution,

we noted that *{i}]t should not be presumed that error injuriously

effects the substantial rights of the defendant,” 366 So.2d at

75), and found that Salvatore's rights had not been violated by

the loss of evidence in the case.

Appellant argues that application of the variable standard

analysis established in Sobel and Selvatore to the facts of this

case mandates a different result. Because the state-ordered

Gestruction of the evidence was at best inexcusable negligence,

it is argued, the conduct of the state weighs heavily towards

reversal of the decision below. Citing the lack of a statute of

limitations for first-degree murder, and appellant's status as «a

suspect since the commission of the surder in 1966, appellant

urges that the state's destruction of the evidence constituted a

breach of its extreordinary duty under these facts.

While we find the destruction of the evidence in this case

unfortunate, we cannot read the facts a8 even hinting at

antentional]l Sehavior by the state affecting appellans='s

substantial rights. While extremely hesitant to condone the

state's Senavior here, we find no negligence in its actions.

A-5

Obviously, the state hed insufficient evidence to proceed segeinsc

eppellant until Sweet offered his testimony in 1981. The

destruction of the evidence took place nearly nine and « half

years after the state's truitiess efforts to convict Sweet, and

five years before appellant's indictment.

In @ sense, this is a case of first isspression, in which

the principles set for=h in Brady, Agurs. Sobel and Seivatore are

applicable only by ansilogy. In none of those cases was the lost

or destroyed evidence completely unlinked to any sctive, or even

foreseeable, prosecution. On the upusual facts of this case,

therefore, the state's behavior may be excused. We wish to

emphasize, however, that af even the slightest hint of

prosecutorial misconduct was present in the case the resuit aignt

well be different.

In applying the second prong of the analysis, we find that

the state has wet its burden of establishing lack of prejudice to

the eppellant’s case. Phraeed alternatively, we find that

appellant bas failed to establish « sufficient degree of

prejudice to justify « reversal of his conviction. D0 ..s v.

State, 395 $0.24 501, 504 (Pla.), cert. denied, 454 0.5. 933

(1961).

In resolution of this necessarily speculative asalysis,

appellate courts have tended to defer to the findings of the

trial court on the matter. Sobel, 363 So.2¢ at 328; Sweicnr v.

State, 400 $0.26 956 (Fila. 1981); Krantz v. State, 405 $0.24 211,

212 (Plea. 34 SCA 19861); Budman v. State, 362 So.24 1022 (Flea. 346

OCA 1978). The triel court below specifically found thet the

destruction of the particular evidence here in question dic¢ not

prejudice appellant's case, Of Create an Otherwise noo~exLsetent

reasonable Goubt. in light of the centrality of testimony rather

than teal evidence in the case, we cannot d:segres. We snerefore

find the denial of seppeliant’s motion to dismiss the indictment

proper.

In nas second point on sppeal, seppellast argues chat he

triel court erred in permittisg @ witness to testify as to an

elleged conversetion he hed with Jonn Sweet in 1.967. The

Witness, Abe Namisa, was & private investigator hired by Sweet's

trial coupeel after the murder in 1966. During the converssetion,

Sweet sllegedly agade some statements which now incriginate

apoellant. Namie’s testimony was sdmitted below as testimony of

prior CONsistent statements by Sweet, rebutting an inference of

recent fabrication of smproper motive establishec in Sweet's

ral

tOss-examination.

We reject sppellant’s contention that Namia'’s testisony

was hearsay and improperly edmitted. Defense counsel clearly

established an inference of improper motive to fabricate through

ics extensive croes-examination of Sweet concerning the laundry

hist of crimes for which he had bees given amssunity in return for

has testimony segeinst Kelley. Appellant does not deny that the

jury wes left wich an impression of Sweet's improper motive to

fabricate, Van Gallon v. State, $6 $6.24 862 (Fla. 1951), but

rqgues that Sweet's stetaements a6 teported by Namis were oct

sufficiently consistent with Sweet's testimony «at trial to be

properly edmissible under section 90.801(2)(b), Florida Stacutes

19863)

While keeping in mind that “sa failure to properly sdhere

to the requirement of consistency tends to border on a disregard

of the Gangers sought to be restrained by the hearsay rule,” Sosa

v. Stace, 215 So.26 736 (Fla. 1968), we find that the two

statements concerning the murcer varied in only legally

insignificast aspects. More troublesome than these since

inconsistencies was the fact that Namgia’s recollection

prior testimosy contained certsis facts seyond those in Sweet's

sestimonsy if chief, which Namia'’s testimony was edmitcec to

Sweet, seccording to Namia, had isformed Namia that pricr

So she murcer cer=ain uicgantified assassins had twice travelled

cc Florida to kill Maxcy Although Sweet's testimony in chief

dic not scefer to <hese shadowy figures, we find that nc

reversible error wes committed is thet «he secditional fects

anvolvec were neither haghly incriminating nor critica

establishment of an ultimeste fact in dispute. Sosa, 215 So.2d at

745.

In sheoct, sppellant was not prejudiced by the scmission of

the testimony. We have before held, too, that questions

concerning the sd@iseibility of extrajudicial statements for the

purpose of rehabilitating witnesses impeached by the inference of

@ fFecent Motive to fabcicate are largely sddressed to the sound

discretion of the trial court, and are not to be reversed in the

absence of « prejudicial abuse of discretion. Sosa, 215 $0.24 at

744 See also United States v. DeVore, 423 F.24 1069, 1673 (4en

Caz. 1970), cart. denied, 602 U.S. 990 (1971). We find ne such

souse of Giscretion below, and so reject appellant's argument.

Next, appellant argues that the trial court erred in

failing to answer « question seddressed to it by the jury during

its Geliberations. After several hours of deliberation, the jury

announced thet it had reseched an impasse. Upon receiving an

Allen charge, Allen v. Onited States, 164 0.5. 492 (1896), the

jury reeumed its deliberations. The interaction in question

occurred when the jury subsequently inguire( of the court whether

“Jonn J. Sweet received immunity in Florida for first degree

murder and perjury before he gave information on the Maacy trial,

anc if he had anything to gain by his testisony.”

The triel court, while aware that Sweet's testimony on

CrOss-@xeBinetion established the existence of such iemunity,

Seclined to explicitly answer the jury's question concerning the

crucial issue since formulsting an answer would have required his

to BOth interpret Sweet's testimony anc maxe « judgment a6 to his

motivetaon.

Rather, the trial court offered to the jury to have

Sweet's testimony reed beck in portions Gesignated by the sury.

We san 806 OC abuse of discretion in such ection. The court’s

ANSAsStence upon the jury's rather than its own choice of the

pessages to be fe-tead was proper, in light of the Latter’s

-@gGitimate Hesitation to comment vpon whe evicence The jury

question here involved macters of fact, and this Court hes held

that « trisl judge need answer only questions of law raised by

jurors. State v. Raciifs, 329 $o.24 285 (Fla. 1976).

In rejecting appellant's contention that the court below

acted improperly in this respect, we finally rote that Florida

law has given the trial court « wide latitude in deciding whether

or not to have testimony re-read to jurors upon request. Fla. R.

Cz. P. 3.410; DeCastro v. State, 360 S$o.2d 474 (Fla. 34 DCA

1978), cert. denied. 368 So.24 1365 (Fla. 1979); Simmons v.

State, 334 $0.26 265 (Fle. 34 OCA 1976).

In bis fourth point on sppeal, appellant contends thet the

trial court erred in allowing the jurors to take notes during the

trial and failing tc edequately instruct the jury as to the

proper role of note-taking. Whether or not a jury is to be

allowed to take notes and use them in the deliberation process is

& question within the sound discretion of the trial court.

United States v. Rhodes, 631 F.2d 43 (Sth Cir. 19860); Onited

States v. Riebold, 557 F.24 697 (10th Cir.), cert. denied, 434

U.S. 860 (1977).

The jurors were informed by the court that note-taking was

optional, and instructed that a juror’s note-taking in no way

gave ham or her authority over the others on the panel. We

reject appellant's essertion that the jury was inedequacely

instructed, soting that no additional or different instructions

on the matter were proposed by the defense below.

Next. sppellant argues that the trial cour: erred in

acdmittiosg certain of his post-arrest statements to FBI agents

obteined in violation of his Miranda rights. Micende v. Arizona

364 0.5. 436 (1966). Appellant, allegedly in « slightly

Aoebrietedc conditicc, was given apd examined « Mirandés warning

forms for 15-20 seconds before he returned it, saying °I know my

ragnts.° Later in the book-in procedure, appellant learned that

he wes wanted in Highlands County, Florida, for murder. After an

agent compentec to appellant °I’m certainly sure that Highlands

County is going to place «s detainer on you once thev know you

have been arrested in Floriéa,* appellant sade some statements

about Maxcy’s surser.

We need not reach in this case the validity of the Miranda

warnings as given, ani the possible effect of appellant's

intoxication, in light of our finding that the sgent's statement

was not an interrogation within Miranda's pucview. The

statement, in other words, was not a deliberste attempt to elicit

an incriminating response, as prohibited by Ahode Island v.

Innis, 446 U.S. 291 (1960). The incriminating statements here in

question were therefore volunteered, and neither the lecter nor

spirit of Miranda has been violated. ‘he statements were

therefore properly admitted into evidence.

Appellant next mounts an attack on certain instructions

gaven to the jury in en effort to break « deadlock after it had

Geliberatec for seversl hours and announced thet it hed reached

an impasse. The judge gave Florida Standard Jury Instruction

3.06, the authorized jury deadlock instruction, and then

proceeded to sdd some comments of his own. These comments,

appellant argues, impermissibly misled and so coerced the jury

into returning «a verdict that appellant was deprived of his right

to a fair trial.

As we have before recognized, the standard jury

in .uctions should be utilized whenever appropriate, State v.

Bryan, 290 So.2d¢ 482 (Fla. 1974); Rigor v. Bucci, 245 So.24 $1

(Flea. 1971), for a trial judge walks a fine line indeed upon

Geciding to depart. Instructions given to a jury at the

extremely sensitive point it has reached 4 deadlock must be

carefully scrutinized, Kozakoff v. State, 323 So.2d 28 (Pla. 4th

DCA 1975), cert. denied, 336 S$o.2d 1184 (Pla. 1976), and the risk

is too great that an imprudent instruction may lay to waste the

conscientious conduct of as otherwise entirely fair trial.

While the standard instructions are therefore to be

preferred, the trial court’s failure to give them does not

cetermine the issue. a court's straying {rom the standard

anstructions, we nave held, does not require automatic cseversal.

State v. Bryan, 290 So.2d 482 (Fla. 1974). The analysis is not

3O simple. We must here join the courzts which have scrutinized

excemporaneocus Ceadlock instructions with an eye towards ensaring

Az10

that no false duty to decide was suggested, Nelson v. State, 438

$0.24 1060 (Fla. 4th OCA 1983); Lincoln v. State, 364 So.2d 117

(Fla. Lace OCA 1978), that the verdict returned was not coerced,

Jenkins v. United States, 380 U.S. 445 (1965), and thac the

instructions were “balanced,” encouraging neictner acquittal nor

conviction. State v. Bryan, 290 S$o.2d 482 (Fla. 1974); Gardener

v. State, 405 So.2d 470 (Fla. 34 DCA 19861).

At this point it may be helpful to consider the actual

instructions which appellant here attacks:

T would esk that you give it your full consideration.

Tt 18 an important case.

If you fail to reach a verdict, there is no reason to

believe the case can be tried again any better or

mors exhaustively than it has been.

There is no reason to beliewe there is any more

evidence or clearer evidence could be produced on

either side. And there is no reason to believe the

case could be submitted to twelve more intelligent

and impartial people than you are.

In the future a jury would be selected in the same

manner that you were.

Therefore, I would ask that you retire at this time

and consider whether you wish t consider the matter

further.

Tt has taken us @ week to get this far, and I would

ask that you retire and consider the case further.

Appellant contends that theee instructions so strayed from

permissible bounds that the jury was coerced into returning its

verdicz of guilt, and that the verdict must therefore fall.

While reluctant to engage in the speculative analysis of the

effect these instructions may have had on the uncertain jury

Geciding appellant's guiit, we must, and find that caselaw and

logic support the appealed conviction.

A fine line must be drawn in such an analysis, but we find

that substantially similar instructions have been upheld, Onited

Ststes v. Dixon, 593 F.2d 626 (Sth Cir.), cerz. denied, 444 0.5.

861 (1979), and that instructions found prejudicial differ in

some crucial respects from the instruction given below.

Appellant contends, for example, that the result in Nelson v.

State, 438 So.2d 1060 (Fla. 4th DCA 1983), should obtain in the

instant case. For purposes of comparison, it will be useful to

examine the instructions given in thet case:

T don't think that anybody here would be served by

you all not arriving at a verdict. It would be

wasting your time for whatever period of time which I

guess is... seven days now. Nopody can repeat

this cestimony and exhibits placed before you. If

you all cannot arrive at a verdict, then something is

wrong. .. . You just don't understand wnat happens

if we had to retry this case. it is not just

reproducing the wicnesses ... but it i8 going

through this whole reppertoire (sic) again for you or

for someone else when it ia really not nacessary.

You have heard all the law. That is all the evidence

there is. That is it as far as what was presented

here before you.

We look to you for the resolution of this case. It's

that pure and simple. ...

I can't see that it would be impossible when we have

just such a fine jury here.

438 So.2d4 at 1061.

The Fourth District found these instructions coercive in

effect. A close examination of the inetructions makes clear the

prejudicial components which rendered the statement as a whole

sufficiently coercive to justify the reversal of a first-degree

murder conviction.

Pirst, the instructions subverted the proper role of a

Jury in a capital trial by implying a false duty to reach a

verdict in the case. Lancoln v. State, 364 $o.2d 117? (Fila. let

DCA 1978). Second, the jury was left with the impression that

failure to return a verdict would constitute waste, and would put

the court to a great deal of trouble upon retrial. United Staces

v. Betancourt, 427 F.24 851 (Sth Cis. 1970).

Because the instructions in Nelson “made it appear that

unless a verdict was reached... the court's confidence in the

jury's common sense would somehow have been betrayed,” 438 So.2d

at 1063, the Fourth District found the risk unacceptably high

that even @ single juror may have been influenced to abandon his

conscientious belief as to the correctness of his position.

The instructions given in the instant case presented no

Similar threat to the integrity of the jury svstem. Rather than

demanding a verdict, the judge below Cemonstrated an attitude

represented by his statement, “I would ask that you retire at

An12

this tame and consider whether you wish to consider the matter

further.“ We also note that the jury continued to deliberate for

® considerable period of <ime after receiving the instruction,

feturning to eek the court for an unrelated instruction. In sus,

while disapproving of such departure from Florida's Standard Jury

Instructions, we can find no prejudice resulcing from the

anetructions as given.

In his seventh point on appeal, appellant argues that he

wee denied his sixth amendment right to the effective sssistance

of counsel. Generally, such claims are not reviewable on direct

*ppeel but are sore properly raised in « motion for post~-

conviction relief. Perri v. State, 441 So.24 606 (Fie. 1983);

State v. Barber, 301 So.24 7 (Pla. 1974). Unlixe those cleias

feised under the benner of ineffective essistance which we

Getermined should have been raised on direct appeal in Adass v.

State, 456 So.24 866 (Fla. 1984), the claims here raised by

*ppellar’ cannot be sufficiently determined by the record as it

stands. The issue is therefore not properly raised here.

Finally, appellant reises « sumber of arguments sttacking

the application of the death penalty statute to his case and the

statute's constitutionality. Saving carefully reviewed each of

these contentions, they are found to be without serit.

Appellant's conviction and éGeath sentence are therefore affirmed.

it is so ordered.

BOYD, C.J., and CURLICBE and SHAW, 33., Concur

OVERTON, J., Concurs specially with an opinion

NOT LLNAL UNTI, SIME EXPIRES TO FILE ALBZARING MOTIOW AND. IF

FILES, CFTEAMINED. - Sy

a i

OVERTON, J., concurring specially.

Because this involves the “triggerman” in # contract

killing, the death penalty is spproprisete. l ams concerned,

however, that our system of justice has sllowed Sweet, who

instigated, plenned, and directed this surder,

to receive totes

tempunity from prosecution for this surcer.

An Appeal from the Circuit Court in and for dighlands County,

B. Randolph Bentley, Juége - Case Ho. CRE1L-535

Barty UWaight, Milton, Massachussetts; and Donald L. Ferguson,

Coconut Grove, Florida,

for Appellest

Jim Smith, Attorney General; and Karle J. Staker ané Robert J.

Krauss, Assistant Attorneys General, Tampa, Florida,

for Appellee

A-45

TRIAL COURT'S ORAL RULING ON DEFENDANT'S

MOTION TO DISMISS INDICTMENT BECAUSE OF THE

STATE'S DESTRUCTION OF EVIDENCE - TRANSCRIPT

ON APPEAL, VOL. 1 at 58-60 (JAN. 11, 1984)

THE COURT: Thank you, sir. One thing we

have here is a unique situation with a unique

set of facts, and it may or may not have a

unigue law that applies. To me, there's not

ever going to be many cases like this.

Normally, in a normal criminal charge a

Statute of Limitations prevents this sort of

problem from coming up or it makes it less

likely that it's going to come up. Murder has

no Statute of Limitations. There's no social

implication behind that decision by the law

that all crimes will not have a Statute of

Limitations.

I'm drawn back to the underlying purpose

of Rules. It's not popular to talk about them

any more, I understand, because he's not

supposed to know anything. I recommend

Blackstone. The Rule says it is by

implication what facts were applied, and there

you don't apply it. I think that's the

question we have befcre us.

I have been in complete agreement with

the normal Rule and the State destroys

evidence in the face of an impending

prosecution, either after they have started or

knowing they're going to commence it or the

police are gathering evidence and sort of

beginning, it's out the window. Knowing that

they're going to court doesn't much matter.

Normally these things are not to be done

either to safeguard or to prevent anyone from

taking advantage of the destruction of

evidence. I think we have a different

Situtation here.

The question is, does the normal Rule

apply under the unigue facts of this case? We

are talking about such a long passage of time

where there is no implication at all that the

A-17

action was in bad faith. In fact, it's hard

to say if, one, it was initiated by the

prosecution or actually done pursuant to the

court order.

I'm also impressed by the fact that,

although obviously we know in general terms

what's missing other than some hypothetical

arguments about the bullet, we really haven't

pointed to things specifically -- a

reproduction of this document isn't sufficient

because we need these items because there may

well be a point in this trial when some of

those items will become apparent that there is

prejudice. I note that both sides have a

problem in this case because of the passage of

.time.

When the Legislature said there was no

Statute of Limitations on murder, I assume

they knew both sides were going to have a

time, I think that the law that's been cited

A-18

is good law, but I don't think it applies to

the facts of this case. I understand there

will be certain difficulties. I'm reminded in

other areas of law it's specifically said that

everyone is entitled to a fair trial, not to a

perfect trial. Therefore, I'm going to deny

the motion based on the argument that the

destruction of records alone constitutes a

bar.

A-19

FINDINGS OF FACT RE: THE IMPOSITION OF DEATH

PENALTY - TRANSCRIPT ON APPEAL, VOL. 6, 1001-

1007 (APRIL 2, 1984).

Findings of fact: The Defendant was

indicted by the Grand Jury of Highlands

County, Florida, for First Degree Murder.

Trial by jury was held and the Defendant was

found guilty of First Degree Murder.

In a separate proceeding a majority of

the trial jury recommended to the Court that

the death penalty ke imposed on the Defendant

as to the offense of Murder in the First

Degree.

In making the following findings of fact

anu conclusions of law the Court has taken

into consideration the testimony produced at

trial and at the penalty phase.

The Court makes the following findings of

fact:

A-20 ;

l. AS an aggravating circumstance, the

Defendant, William Kelley, was previously

convicted of a felony involving the use of

threat of violence to the person, in that he

was convicted of conspiracy to rob in the

State of Massachusetts in 1959, and on the

same date convicted of robbery. Since these

two charges, from their dates, appear to have

arisen from the same transaction the Court

will consider these as only one crime.

2. AS an aggravating circumstance, the

Capital felony, that is, murder of Mr. Maxcy,

was committed for pecuniary gain. The sum of

$20,000 was paid to a third man to procure the

murder. Mr. Kelley and Mr. Von Etter traveled

to Florida and accomplished the killing.

There is testimony to the effect that Mr.

Kelley received $5,000 of this sum. Even if

the precise amount received is incorrect, the

evidence establishes without question that Mr.

Kelley's participation was for pecuniary gain.

3. As an aggravating circumstance, the

Capital felony was a homicide and was

committed in a cold, calculated and

premeditated manner, without any pretense of

moral or legal justification. Mr. Kelley had

never met the victim, Mr. Maxcy. The killing

was preceded by telephone calls and a

"scouting trip” by Mr. Von Etter. The killing

was thoroughly planned in advance. The

purpose of the killing was to prevent Mr.

Maxcy from disinheriting Irene Maxcy or

divorcing her. None of the parties have any

-pretense of moral or legal justification.

This particularly applies to Mr. Kelley and

Mr. Von Etter who were hired killers.

4. The other aggravating circumstances

are inapplicable in this case.

A-22

As to mitigating circumstances, the Court

makes the following findings:

1. The Defendant has a significant

history of prior criminal activity and

therefore this is not a mitigating factor.

In 1963 in federal court he was convicted

of 14 counts of forgery of a money order.

In the State of Massachusetts in 1963 he

was convicted of two counts of uttering a

forged instrument and two counts of theft.

In 1967 he was convicted in the State of

Massachusetts of carrying in a vehicle an

automatic spring-release knife; unlawful use

of an automobile; and possession of burglary

tools.

In 1967 in the State of Massachusetts of

burglary of a restaurant and possession of

burglary tools.

ln 1971, he was convicted in the State of

Massachusetts of possession of burglary tools

and burglary of a dwelling.

In addition, as previously indicated

under aggravating circumstances, he was

convicted in 1959 in the State of

Massachusetts of conspiracy to rob and

robbery.

2. There is no evidence that this murder

was committed while the Defendant was under

the influence of extreme mental or emotional

disturbance.

3. There is no evidence that the victim

waS a participant in the Defendant's conduct

Or consented to the action.

4. There is no evidence that the

Defendant was an accomplice in a capital

felony committed by another person and that

his participation was relatively minor. It

has been argued that it is unknown who

actually murdered Mr. Maxcy. There is

credible evidence that the Defendant later

said that after he stabbed Mr. Maxcy the

victim did not die and that he then shot him.

Even if the Court disregarded this statement,

the fact remains that Mr. Kelley was one of

the two people who entered the house, after

which one or both of them murdered Mr. Maxcy.

This is in no way a case of an accomplice

waiting outside or not actively participating.

The Court finds this mitigating circumstance

does not apply.

5. There is no evidence that the

Defendant acted under extreme duress or under

the substantial domination of another person.

6. There is no evidence that the capacity

of the Defendant to appreciate the criminality

of his conduct or to conform his conduct to

the requirements of the law was substantially

impaired.

7. The Defendant was 23 years of age at

the time of this crime, and his age is

therefore not a mitigating circumstance,

8. The following other mitigating

circumstances have been advanced:

It is contended that Mr. Kelley's prior

Criminal history is not significant because of

its age, the lack of very recent convictions,

and because many of the acts are petty

Criminal acts. The Court disagrees. Mr.

Kelley's record begins with robbery in 1959,

and ends with burglary of a dwelling in 1971.

It includes two burglaries and a robbery in

addition to the other enumerated crimes.

It is argued that the sentencing

guidelines in effect in the State of Florida

discount older crimes. The guidelines do not

apply to first-degree murder.

It is contended that the date of the

Crime is a factor in mitigation. There is no

statute of limitations for first-degree

murder. Remoteness in time by itself is not a

mitigating factor.

It is contended that there is a disparity

in punishment in that no one else has been

convicted of this crime and that Mr. Kelley

was only a tool and not the instigator. Irene

Maxcy stood to gain an immense amount of

wealth and Mr. Sweet would have benefited

greatly. Mr. Sweet was tried once and the

jury could not agree. Upon his second trial

he was convicted but the appellate court

reversed. He was never tried again. Irene

Maxcy was tried and convicted for perjury at

Mr. Sweet's trial. She was never tried for

murder. Mr. Von Etter died by an act of

violence not long after this killing.

A-27

Although strictly speaking disparity of

punishment applies to those convicted of the

Crime, the Court is troubled by these

circumstances. The Court understands the

argument that dictates the giving of immunity

on occasion so that other guilty parties may

be convicted. However, under the

circumstances, the Court finds that this is a

mitigating factor.

It is contended that the destruction of

evidence is a mitigating factor. The legal

issue in that regard has already been ruled on

by this Court. Over and beyond that, there is

no indication that the destruction of evidence

years ago affected Mr. Kelley's case. In many

instances copies of destroyed documents

existed. The most important missing items

were the sheet with which the victim was

covered anc the bullet. The Court is of the

A-28

Opinion that the missing evidence did not

affect or cloud the issues sufficiently to be

treated as a mitigating factor.

Finally, it is suggested that Mr. Sweet's

character is so bad that this constitutes a

mitigating factor. Without question Mr. Sweet

is a bad and evil person. The question,

however, is whether he is telling the truth or

not in this case. The jury, by its verdict,

demonstrated that it, like the Court, believes

his testimony. This is not a mitigating

circumstance.

It is the finding and determination of

the Court that as to the charge of first-

degree murder the aggravating circumstances

-Substantially outweigh the mitigating

Circumstances and that therefore the death

penalty should be imposed upon the Defendant.

Done this 2nd day of April, 1984, in open

court in Highlands County, Florida, E.

Randolph Bentley, Circuit Judge.

A- 30

SUPREME COURT OF THE UNITED STATES

NO. A-964

WILLIAM HAROLD KELLEY,

Applicant,

mige

FLORIDA

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of

counsel for the applicant,

IT IS ORDERED that the time for filing a

petition for a writ of certiorari in the

above-entitied cause be, and the same is

hereby, extended to and including July 9,

1986.

/s/ Lewis F. Powell, Jr.

Associate Justice of the

Supreme Court of the

United States

Dated this llth

day of June, 1986.

A-31

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.