Appendix — Kelley v. Florida (No. 86-106)

”\

86-106

Supreme Court, US,

be >"

4 a

No. A-964

In The Supreme Court

of the United States

October Term, 1985

William Harold Kelley,

Petitioner,

~against-

The State of Florida,

Respondent.

Supplemental Appendix to the

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 )

TABLE OF CONTENTS

APPENDIX

Opinion of the Supreme Court

of Florida (Apr. 10, 1986).........SA-l

a oo

ee een re

SUPREME COURT OF FLORIDA

No. 65,134

WILLIAM HAROLD KELLEY, Appellant,

vs.

STATE OF FLORIDA, Appellee.

[April 10, 1986]

ADKINS, J.

William Kelley appeals his conviction for

the first-degree murder of Charles V. Maxcy and

the death sentence imposed. We have

jurisdiction. Art. v. § 3(b)(1), Fla. Const.

Appellant's conviction represented the

resolution of a highly unusual case, raising

some unusual issues. Appellant was indicted in

December of 1981 for the Maxcy murder committed

in October of 1966. An explanation of this

delay in prosecution requires an examination of

SA-1

the figures involved and the evidence adduced at

appellant's trial.

John Sweet, involved in an illicit love

affair with Irene, the victim's wife, planned

the murder so that he and she could live

together on Maxcy's inheritance. Towards this

end, Sweet contacted a Walter Bennett in

Massachusetts and made the necessary

arrangements. A price was set, and in early

October of 1966 appellant Kelley and one Von

Etter carried out the sinister task.

Because prosecutors found the evidence

insufficient to proceed against appellant and

Von Etter, and because Irene Maxcy received

Sn ae ee

fem a

immunity in return for her testimony in this

case, only Sweet was originally tried. His

first trial resulted in a mistrial, and the

conviction resulting from his second trial

SA-2

was reversed on appeal. Sweet v. State, 235

So.2d 40 (Fla. 2d DCA), cert. denied, 239 So.2d

267 (Fla. 1970).

At that point, the state felt unable to

proceed against Sweet due to the lapse of time

and the loss of certain witnesses’ testimony.

Thus, the case lay dormant for over ten years.

This standstill was broken only after Sweet, in

1981, became involved in a criminal situation he

found threatening and approached law enforcement

authorities in order to seek some protection by

_ receiving immunity in return for his testimony

as to a wide variety of crimes.

It was this testimony upon which

) appellant'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 a purported

conversation with appellant several years after

SA-3

iil

the murder in which appellant allegedly said

"Boy, [Maxcy] 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." The other

central testimonial evidence presented in

appellant's trial below was that of one Abe

Namia, a private detective originally hired

after the murder by Sweet's defense counsel.

Namia testified as to some purported statements

of Sweet's made in 1967 incriminating appellant.

The statements were admitted to rebut an

inference of recent fabrication established by

the rigorous cross-examination of Sweet as to

his extensive immunity and possible motives to

fabricate.

Appellant's first trial ended in a

mistrial, the jury unable to agree on a verdict.

His second trial began in March of 1984. In the

verdict presently appealed, the jury found

SA-4

|

Kelley guilty of first-degree murder and

recommended the death penalty. In April 1984,

the trial judge filed his written findings of

fact in support of the death penalty. He found

three statutory aggravating circumstances:

prior conviction of a violent felony, section

921.141(5)(b), Florida Statutes (1983); homicide

commited (sic) for pecuniary gain, section

921.141(5)(£); and homicide committed in a cold,

calculated, and premeditated manner without any

pretense of moral or legal justification,

section 921.141(5)(i). As a nonstatutory

mitigating circumstance he found that appellant

was the only participant in the murder to

receive punishment.

Appellant raises a number of attacks on the

trial of his case and the sentence imposed,

alleging a number of prejudicial errors spanning

from the time period well before his indictment

SA-5

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.

After the reversal of Sweet's second

conviction on appeal, he successfully moved for

the dismissal of his indictment. At that point,

with no active suspects capable of prosecution,

the case file, including the evidence involved,

was transmitted to the clerk of the court for

maintenance. The evidence there remained until

ee

April of 1976, nine and a half years after the

murder. At that point the state, at the clerk's

request, moved for an order requesting the

SA-6

court's permission to dispose of the evidence.

The state's motion, indicating that "this cause

has been disposed of," was granted and the

evidence destroyed. The case subsequently lay

dormant until Sweet's testimony against

appellant Kelley revitalized the prosecution in

1981.

The 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 purportedly used to subdue the victim

during repeated stabbings, and a shred of the

victim's shirt. Also destroyed were two

handwritten statements by Sweet, which appellant

urges would have been useful in impeachment.

Copies of the documentary evidence in the case,

by far the bulk of the evidence presented at the

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

indictment should have been dismissed. 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.

SA-8

Maryland, 373 U.S. 83 (1963), and United States

v. Agurs, 427 U.S. 97 (1976). Brady laid down

the proposition that "[T]he suppression by the

prosecution of evidence favorable to an accused

upon request violates due process where the

evidence is material either to guilt or

punishment, irrespective of the good faith or

bad faith of the prosecution." 373 U.S. at 87.

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 justice of the finding of guilt. If,

upon consideration of the record as a whole, the

omitted evidence creates a reasonable doubt not

otherwise existing, the evidence is material and

constitutional error has been committed. Due

process rights are not violated in every case

involving the suppression of evidence.

j SA-9

"The mere possibility that an item of

undisclosed information might have helped the

defense, or might have affected the outcome of

the trial, does not establish 'materiality' in

the constitutional sense." 427 U.S. at 109-10.

In State v. Sobel, 363 So.2d 324 (Fla.

1978), this Court utilized that language from

Agurs in formulating an analysis applicable to

the issue of appropriate sanctions when the

state has destroyed evidence. Recognizing that

"dismissal of charges against a defendant.

was an extreme sanction to be utilized with the

greatest caution and deliberation," Sobel, 363

So.2d at 327, this 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 dictated that the burden be

placed on the state to prove lack of prejudice

SA-10

"

to the defendant, if it so contended.

In Salvatore v. State, 366 Sco.2d 745 (Fla.

1978), cert. denied, 444 U.S. 885 (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 affects the

- substantial rights of the defendant," 366 So.2d

at 751, and found that Salvatore's rights had

-not been violated by the loss of evidence in the

; Case,

j SA-11

—

Appellant argues that application of the

variable standard analysis established in Sobel

and Salvatore to the facts of this case mandates

a different result. Because the state-ordered

destruction 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 murder in 1966,

appellant urges that the state's destruction of

the evidence constituted a breach of its

extraordinary duty under these tacts.

While we find the destruction of the

evidence in this case unfortunate, we cannot

read the facts as even hinting at intentional

behavior by the state affecting appellant's

substantial rights. While extremely hesitant to

SA-12

condone the state's behavior here, we find no

negligence in its actions. Obviously, the state

had insufficient evidence to proceed against

appellant until Sweet offered his testimony in

1981. The destruction of the evidence took

place nearly nine and half years after the

state's fruitless efforts to convict Sweet, and

five years before appellant's indictment.

In a sense, this is a case of first

impression, in which the principles set forth in

Brady, Agurs, Sobel and Salvatore are applicable

only by analogy. In none of those cases was the

lost or destroyed evidence completely unlinked

to any active, or even foreseeable, prosecution.

On the unusual facts of this case, therefore,

the state's behavior may be excused. 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.

SA-13

In applying the second prong of the

analysis, we find that the state has met its

burden of establishing lack of prejudice to the

appellant's case. Phrased alternatively, we

find that appellant has failed to establish a

sufficient degree of prejudice to justify a

reversal of his conviction. Demps v. State, 395

So.2d 501, 504 (Fla.), cert. denied, 454 U.S.

933 (1981).

In resolution of this necessarily

speculative analysis, appellate courts have

tended to defer to the findings of the trial

court on the matter. Sobel, 363 So.2d at 328;

Smith v. State, 400 So.2d 956 (Fla. 1981);

Krantz v. State, 405 So.2d 211, 212 (Fla. 3d DCA

1981); Budman v. State, 362 So.2d 1022 (Fla. 3d

DCA 1978). The trial court below specifically

found that the destruction of the particular

evidence here in question did not prejudice

| SA-14

appellant's case, or create an otherwise

non-existent reasonable doubt. In light of the

centrality of testimony rather than real

evidence in the case, we cannot disagree. We

therefore find the denial of appellant's motion

to dismiss the indictment proper.

In his second point on appeal, appeilant

argues that the trial court erred in permitting

a witness to testify as to an alleged

conversation he had with John Sweet in 1967.

The witness, Abe Namia, was a private

investigator hired by Sweet's trial counsel

after the murder in 1966. During the

conversation, Sweet allegedly made some

statements which now incriminate appellant.

Namia’'s testimony was admitted below as

testimony of prior consistent statements by

Sweet, rebutting an inference of recent

fabrication or improper motive established in

SA-15

Sweet's cross-examination.

We reject appellant's contention that

Namia's testimony was hearsay and improperly

admitted. Defense counsel clearly established

an inference of improper motive to fabricate

through its extensive cross-examination of Sweet

concerning the laundry list of crimes for which

he had been given immunity in return for his

testimony against Kelley. Appellant does not

deny that the jury was left with an impression

of Sweet's improper motive to fabricate, Van

Gallon v. State, 50 So.2d 882 (Fla. 1951), but

argues that Sweet's statements as reported by

Namia were not sufficiently consistent with

Sweet's testimony at trial to be properly

admissible under section 90.801(2)(b), Florida

Statutes (1983).

While keeping in mind that "a failure to

properly adhere to the requirement of

SA-16

consistency tends to border on a disregard of

the dangers sought to be restrained by the

_hearsay rule," Sosa v. State, 215 So.2d 736

(Fla. 1968), we find that the two statements

concerning the murder varied in only legally

insignificant aspects. More troublesome than

these minor inconsistencies was the fact that

Namia's recollection of Sweet's prior testimony

contained certain facts beyond those in Sweet's

testimony in chief, which Namia's testimony was

admitted to corroborate.

Sweet, according to Namia, had informed

Namia that prior to the murder certain

unidentified assassins had twice travelled to

Florida to kill Maxcy. Although Sweet's

testimony in chief did not refer to these

shadowy figures, we find that no reversible

error was committed in that the additional facts

involved were neither highly incriminating nor

SA- 17

critical to the establishment of an ultimate

fact in dispute. Sosa, 215 So.2d at 745.

In short, appellant was not prejudiced by

the admission of the testimony. We have before

held, too, that questions concerning the

admissibility of extrajudicial statements for

the purpose of rehabilitating witnesses

impeached by the inference of a recent motive to

fabricate are largely addressed to the sound

discretion of the trial court, and are not to be

reversed in the absence of a prejudicial abuse

of discretion. Sosa, 215 So.2d at 744. See

also United States v. DeVore, 423 F.2d 1069,

1073 (4th Cir. 1970), cert. denied, 402 U.S. 950

(1971). We find no such abuse of discretion

below, and so reject appellant's argument.

Next, appellant argues that the trial court

erred in failing to answer a question addressed

to it by the jury during its deliberations.

SA-18

After several

announced that it

receiving an Allen charge, Allen v.

164 4

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its deliberations.

occurred when the

the court whether

hours of

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jury

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had reached an im

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The interaction in question

jury subsequently inquired of

seceived

"John J. Sweet

immunity in Florida for first degree murder and

perjury before he

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and if h

gave information on the Maxcy

rial, ad anything to gain by his

testimony.”

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testimony on cross

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explicitly answer

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weet s testimony

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SA-19

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DCA 1978), cert. denied, 368 So.2d 1365 (Fla.

1979); Simmons v. State, 334 So.2d 265 (Fla. 3d

DCA 1976).

In his fourth point on appeal, appellant

contends that the trial court erred in allowing

the jurors to take notes during the trial and

failing to adequately 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 a question

within the sound discretion of the trial court.

United States v. Rhodes, 631 F.2d 43 (5th Cir.

1980); United States v. Riabold, 557 F.2d 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 him or her

authority over the others on the panel. We

reject appellant's assertion that the jury was

SA-21

inadequately instructed, noting that no

additional or different instructions on the

matter were proposed by the defense below.

Next, appellant argues that the trial court

erred in admitting certain of his post-arrest

statements to FBI agents obtained in violation

of his Miranda rights. Miranda v. Arizona, 384

U.S. 436 (1966). Appellant, allegedly in a

slightly inebriated condition, was given and

examined a Miranda warning form for 15-20

seconds before he returned it, saying ‘I know my

rights." Later in the book-in procedure,

appellant learned that he was wanted in

Highlands County, Florida, for murder. After an

1?

agent commented to appellant "I'm certainly sure

that Highlands County is going to place a

detainer on you once chey know you have been

arrested in Florida," appellant made some

Statements about Maxcy's murder.

We need not reach in this case the validity

of the Miranda warnings as given, and the

possible effect of appellant's intoxication, in

light of our finding that the agent's statement

was not an interrogation within Miranda's

purview. The statement, in other words, was not

a deliberate attempt to elicit an incriminating

response, as prohibited by Rhode Island v.

Innis, 446 U.S. 291 (1980). The incriminating

statements here in question were therefore

volunteered, and neither the letter nor spirit

of Miranda has been violated. The statements

were therefore properly admitted into evidence.

Appellant next mounts an attack on certain

instructions given to the jury in an effort to

break a deadlock after it had deliberated for

several hours and announced that it had reached

an impasse. The judge gave Florida Standard

Jury Instruction 3.06, the authorized jury

SA-23

deadlock instruction, and then proceeded to add

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 recognized, the standard jury

instructions should be utilized whenever

appropriate, State v. Bryan, 290 So.2d 482 (Fla.

1974); Rigot v. Bucci, 245 So.2d 51 (Fla. 1971),

for a trial judge walks a fine line indeed upon

deciding to depart. Instructions given to a

jury at the extremely sensitive point it has

reached a deadlock must be carefully

scrutinized, Kozakoff v. State, 323 So.2d 28

(Fla. 4th DCA 1975), cert. denied, 336 So.2d

1184 (Fla. 1976), and the risk is too great that

an imprudent instruction may lay to waste the

conscientious conduct of an otherwise entirely

SA- 24

fair trial.

While the standard instructions are

therefore to be preferred, the trial court's

failure to give them does not determine the

issue. A court's straving from the standard

instructions, we have held, does not require

automatic reversal. State v. Brvan, 290 So.2d

482 (Fla. 1974). The analysis is not so simple.

We must here join the courts which have

scrutinized extemporaneous deadlock instructions

with an eye towards ensuring that no false duty

to decide was suggested, Nelson v. State, 438

So.2d 1060 (Fla. 4th DCA 1983); Lincoln v.

State, 364 So.2d 117 (Fla. lst DCA 1978), that

the verdict returned was not coerced, Jenkins v.

United States, 380 U.S. 445 (1965), and that the

instructions were "balanced," encouraging

neither acquittal nor conviction. State v.

Bryan, 290 So.2d 482 (Fla. 1974); Gardner v.

SA-25

1. 1 tmoat @ 4 : cP 2 8 » .

the actual instructions wnhicn appellant nere

rt

attacks:

I would ask that you give it your

full consideration. It is 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 more

exhaustively than it has been.

There is no reason to believe 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 vou

wish to consider the matter further.

It has taken us a week to get chis far,

and 1 would ask that you retire and

consider the case further.

SA-26

Appellant contends that these instructions so

strayed from permissible bounds that the jury

| was coerced into returning its verdict 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 deciding appellant's guilt,

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. United States v.

Dixon, 593 F.2d 626 (5th Cir.), cert. denied,

444 U.S. 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

SA- 27

-

of comparison, it will be useful to examine the

instructions given in that case:

I 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. Nobody

can repeat this testimony and exhibits

placed before you. If you all cannot

arrive at a verdict, then something is

wrong. .. . You just don't understand

what happens if we had to retry this

case. It is not just reproducing the

witnesses . .. but it is going through

this whole reppertoire [sic] again for

you or for someone else when it is

really not necessary. 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.2d at 1061.

The Fourth District found these

instructions coercive in effect. A close

examination of the instructions makes clear the

SA-28

prejudicial components which rendered the

statement as a whole sufficiently coercive to

justify the reversal of a first-degree murder

conviction.

First, 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. Lincoln v. State, 364 So.2d 117 (Fla. lst -

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

States v. Betancourt, 427 F.2d 851 (5th Cir.

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

SA-29

risk unacceptably high that even a 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 system. Rather than demanding a

verdict, the judge below demonstrated an

attitude represented by his statement, "I would

ask that you retire at this time and consider

whether you wish to consider the matter

further.'' We also note that the jury continued

to deliberate for a considerable period of time

after receiving the instruction, returning to

ask the court for an unrelated instruction. In

sum, while disapproving of such departure from

Florida's Standard Jury Instructions, we can

find no prejudice resulting from the

instructions as given.

SA-30

In his seventh point on appeal, appellant

argues that he was denied his sixth amendment

right to the effective assistance of counsel.

Generally, such claims are not reviewable on

direct appeal but are more properly raised in a

motion for post-conviction relief. Perri v.

State, 441 So.2d 606 (Fla. 1983); State v.

Barber, %01 So.2d 7 (Fla. 1974). Unlike those

claims raised under the banner of ineffective

assistance which we determined should have been

raised on direct appeal in Adams v. State, 456

So.2d 888 (Fla. 1984), the claims here raised by

appellant cannot be sufficiently determined by

the record as it stands. The issue is therefore

not properly raised here.

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

SA-31

each of these contentions, they are found to be

without merit. Appellant's conviction and death

sentence are therefore affirmed.

It is so ordered.

BOYD, C.J., amd EHRLICH and SHAW, JJ., Concur

OVERTON, J., Concurs specially with an opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED.

SA-32

OVERTON, J., concurring specially.

Because this involves the "triggerman” in a

contract killing, the death penalty is

appropriate. I am concerned, however, that our

system of justice has allowed Sweet, who

instigated, planned, and divected this murder,

to receive total immunity from prosecution for

this murder.

SA-33

An Appeal from the Circuit Court in and for

Highlands County,

E. Randolph Bentley, Judge - Case No.

CR81-535

Barry Haight, Miiton, Massachusetts; and Donald

L. Ferguson, Coconut Grove, Florida,

for Appellant

Jim Smith, Attorney General; and Karla J. Staker

and Robert J. Krauss, Assistant Attorneys

General, Tampa, Florida,

for Appellee

SA-34