Opposition Brief — Kelley v. Florida (No. 86-106)

Supreme Court, U.S,

FILED

AUG 6& 1988

JOSEPH F. SPANIOL, JR,

CLERK

No > A-964

86-106”

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1985

WILLIAM HAROLD KELLEY,

Petitioner,

THE STATE OF FLORIDA,

Respondent.

RESPONSE IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

JIM SMITH

ATTORNEY GENERAL

ROBERT J. KRAUSS

ASSISTANT ATTORNEY GENERAL

ROBERT J. LANDRY

ASSISTANT ATTORNEY GENERAL

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

I. 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.

II. Whether the admission of third party

testimony offered by the State to rebut an

express or implied charge of recent

fabricatiecn or improper motive violated

petitioner's constitutional rights to due

process and confrontation.

III. Whether in this case the death

- penalty constitutes cruel and _ unusual

punishment forbidden by the Eighth and

Fourteenth Amendments.

nals

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .........ii

TABLE OF CONTENTS ..ccccccccccccccccccelkild

TABLE OF AUTHORITIES ...ccccccccccccccceed

OPINIONS BELOW .ccccccccccccccccccccc ce Vil

JURISDICTION OF THE COURT .............vii

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED De inhe hen beececece o WLLL

STATEMENT OF THE CASE tit thehe¢ee ee eeee k

REASONS FOR DENYING THE WRIT ......2.2+--8

EE ES

THE FLORIDA SUPREME

COURT APPLIED A CON-

STITUTIONALLY PERMI-

SSIBLE STANDARD, IN

ACCORD WITH PRIOR

RULINGS OF THIS

HONORABLE COURT, IN

ASSESSING WHETHER

THE STATE'S DESTRUC-

TION OF REAL EVID-

ENCE DEPRIVED PETIT-

IONER OF A_ FAIR

TRIAL.

POINT Tat ccccccccccesescccccccccccccccelS

THE ADMISSION OF

THIRD PARTY TESTI-

MONY TO REBUT AN

EXPRESS OR, IMPLIED

CHARGE OF RECENT

~iii-

FABRICATION OR

IMPROPER MOTIVE DID

NOT VIOLATE PETIT-

IONER'S CONSTITU-

TIONAL RIGHTS TO DUE

PROCESS AND CONFRON-

TATION.

POINT LIL: ccccccccccccccccccccccccce

THE DEATH PENALTY

RECEIVED BY PETIT-

IONER WAS IMPOSED IN

ACCORDANCE WITH CON-

STITUTIONALLY PERMI-

SSIBLE STANDARDS.

CONCLUSION e*eeesteeeetenter8nresteeeseeensee#ee#ee#e#ee#e¢e#€e

CERTIFICATE OF SFRVICE ...... eoccccces

eo e22

APPENDIX ee ee ee ee |

Opinion of the Supreme Court

of Florida (April 10, 1986).

-iv-

TABLE OF AUTHORITIES

PAGE NO.

i. Me, s 6 + + 6 © 6 te te te ew 2

Tas So.2d 326 (Fla. 1983)

Booker v. Wainwright, ........ «24

764 F.2d 1371 (iIth Cir. 1985),

cert. denied, 106 S.Ct. 339 (1985)

wae Vv. ee i. «e «8 «sé © 6 AE

California v. Trombetta, ....... 11

Cardinale v. Louisiana, ....... .10

codtney Vv. Top aet ee s. 6 «a 6 « ome

Hitchcock v. Wainwright, ...... . 23

No. 85-6/56, cert. granted,

54 U.S.L.W. 3809 (5.Ct. June 9, 1986)

Proffitt v. Wainwright, ...... . .26

Salvatore v. State, ....6++e«.e+e 9

O. a. 1978)

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

OS Oe ee.

780 So.2d 208 (Fla. 1984)

-Vve=

TABLE OF AUTHORITIES

PAGE NO.

State v. Sobel, . . : « + eee eS

363 So.2d 324 (Fla. 1978)

Sullivan v. Wainwright, . ..... . «24

United States v. Agurs, ....... ell

United States v. DeVore, . . «+ = « ae

t r. 1970)

cert. denied, 402 U.S. 950 (1971)

-vi-

OPINIONS BELOW

The opinion of the Supreme Court of

Florida in Kelley v. State is reported at

486 So.2d 578 (Fla. 1986). It is

reproduced in the Appendix at A-l, et seq.

JURISDICTION OF THE COURT

To the extent that a substantial

federal question may be presented,

jurisdiction is properly invoked under 28

U.S.C... 225709).

-vii-

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

AMENDMENT XIV

Section I. . . .No State shall make

or enforce any law which shlal 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

improper influence, motive, or _ recent

fabrication.

-viii-

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

enalty -- Upon conviction or adjudication

of acy of a defendant of a capital

felony, the court shlal 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 shlal_ be

conducted by the trial judge before the

trial jury as soon as practicable. i,

through impossibility or inability, the

trial jury is unable to reconvene for a

hearing on the issue of penalty, having

determined the guilty 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 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 be

received, regardless of its admissibility

under the exclusionary rules of evidence,

provided the defendant is accorded a fair

opportunity to rebut any hearsay

-ix-

statements. However, this subsection

shall not be construed to authorize the

intcsoduction 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 oor 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

shall deliberate and render an advisory

sentence to the court, based upon the

following matters:

(a) Whether sufficient aggravating

circumstances exist as enumerated in

subsection (5);

(b) Whether sufficient mitigating

circumstances exist which outweigh the

aggravating circumstances found to exist;

and

(c) Based on these considerations,

whether the defendant should be sentenced

to life imprisonment or death.

(3) Findings in support of sentence

of death -- Notwithstanding the

recommendation of 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

-xX=

(b) That there are insufficient

mitigating circumstances to outweigh the

aggravating circumstances.

In each case in which the court

imposes the death sentence, the de-

termination of the court’ shall _ be

supported by specific written findings of

fact based upon the circumstances in sub-

sections (5) and (6) and upon the records

of the trial and the sentencing proceed-

ings. If the court does not make the

findings requiring the death sentence, the

court shall impose sentence of life impri-

sonment 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 Flroida

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 Supreme Court shall

have priority over all other cases and

shall be heard in accordance 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 4 person under sentence of

imprisonment.

(b) The defendant was previously

convicted of another capital felony or of

a felony involving the use or threat of

violence to the person.

e

ORR ES ny cm EN

(c) The defendant knowingly created

a 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 battery, 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.

(g) The capital felony was committed

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.

-xii-

(b) The Pa ital felony was committed

while the efendant was under the

influence of oo. mental or emotional

disturbance.

(c) The victim was a participant in

the 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.

-xiii-

STATEMENT OF THE CASE

On October 3, 1966, Charles Von Maxcy

was murdered in his home in Sebring,

Florida, by petitioner. Maxcy had been

stabbed several times and shot in the

head.

John J. Sweet was tried twice for

that murder, it being the State's

contention that Sweet had helped arrange

for the murder of Maxcy so that Maxcy's

widow, Irene, could inherit Maxcy's

considerable wealth. Sweet had been

involved in a love affair with Irene

Maxcy. Sweet's first trial ended in

mistrial where the jury was unable to

reach a verdict, and the second trial

resulted in the convictton which was

overturned on appeal .1/ At both trials,

I7 Sweet v. State, 2735 So.2d 40 (Fla. 2d

yf cert. denied, 239 So.2d 267 (Fla.

1970).

the State alleged that Sweet had planned

the murder but had "hired" William Kelley

and Andrew Von Etter to do the actual

killing. Upon remand from the appellate

court, the State indicated that inability

to obtain necessary witnesses made it

impossible to try the case again and

Sweet's motion for discharge was granted.

Thus, although petitioner Kelley was

considered a suspect in the murder since

the late 1960's, the evidence was

insufficient to bring an indictment.

In April, 1976, some nine and one

half years after Maxcy's murder, the Clerk

of the Tenth Judicial Circuit of Florida

in and for Highlands County requested the

State Attorney for Highlands County to

file a petition for disposal of the

evidence being stored for use in the case

against Sweet. The Clerk advised that he

needed the storage space and requested

disposal of the following evidentiary

items: a tire, a white bed sheet, a

section of shirt, a bullet and/or slug,

and two hand written statements of Sweet

(R.1206-1208). The petition for disposal

was granted by the Circuit Court on April

30, 1976.

At petitioner Kelley's trial, Sweet

testified that after his Florida trials he

began selling marijuana for petitioner in

Massachusetts (R.668). During this time,

Sweet became afraid of petitioner (R.666).

At some point, an Arthur Raoul stole some

of the marijuana and petitioner thought

Sweet had stolen it (R.669). Petitioner

severely beat up Sweet and would have

killed him but for a companion stopping

petitioner by stating, "Bill, no killings

tonight. Everyone knows you are here."

(R.669) Petitioner then called Sweet and

told him to bring a pistol because, we

are going to Providence, Rhode Island, for

Arthur Raoul." (R.667) At that point,

Sweet panicked and called his son-in-law,

a police officer, who contacted the

Massachusetts State Police on Sweet's

behalf (R.667). Sweet gave the

Massachusetts State Police information

about numerous Massachusetts crimes as

well as information concerning the Maxcy

murder (R.606-607). Although Sweet never

asked for immunity (R.614), he was given

immunity for numerous Massachusetts

offenses as well as for the Maxcy murder

and the perjury committed by Sweet in his

two Florics trials (R.606,608,614-632).

Only as a result of Sweet agreeing to

testify was the State able to bring an

indictment against petitioner Kelley.

Sweet further testified at

petitioner's trial on direct exam that at

Irene Maxcy's insistence he made

arrangements to have Charles Von Maxcy

killed; that the arrangements were made

through Walter Bennett of Boston; that

petitioner and Von Etter came to Sebring

and met with him; and that h drove

petitioner and Von Etter to the Maxcy

house where they committed the murder

(R.579-594). Defense counsel's crogs-

examination of Sweet raised an express or

implied charge of recent fabrication or

improper motive (R.611-676), and

petitioner has never contended otherwise.

To rehabilitate Sweet, the State

presented the testimony of Abe Namia

(R.765-772), who testified that before

Sweet's first trial Sweet told him that

Irene Maxcy asked Sweet if anyone in the

Boston area would be interested in doing

in

some work in Florida; that Sweet related

this to Wimpy Bennett; that from that time

forward Irene and Bennett talked directly

to each other; that unknown assasins came

to Florida twice to kill Maxcy but aborted

their plans; that eventually petitioner

and Von Etter came to Sebring and met with

Sweet; and that Sweet drove them to the

Maxcy house (R.770-772).

Subsequent to the rendition by the

jury of a guilty verdict, the penalty

phase commenced. The jury returned, by a

vote of 8-3, an advisory sentence

recommending that the death penalty be

imposed on petitioner. The trial court

found three statutory aggravating

circumstances, to wit: (1) prior

conviction of a violent felony; (2) the

homicide was committed for pecuniary gain;

and (3) the homicide was committed in a

cold, calculated and premeditated manner

without any pretense of moral or legal

justification. As a nonstatutory

mitigating circumstance the trial court

found that the defendant was the only

participant in the “axcy murder to receive

punishment. 2/ The trial court imposed a

sentence of death upon petitioner.

2] Irene Maxcy was given immunity to

testify at Sweet's trials in Florida; as

stated above, Sweet's conviction was

reversed and remanded and the State was

unable to proceed; Andrew Von Etter was

found murdered subsequent to the Maxcy

murder.

REASONS WHY THE WRIT SHOULD BE DENIED

POINT I

THE FLORIDA SUPREME COURT

APPLIED A CONSTITUTIONALLY

PERMISSIBLE STANDARD, IN ACCORD

WITH PRIOR RULINGS OF THIS

HONORABLE COURT, IN ASSESSING

WHETHER THE STATE'S DESTRUCTION

OF REAL EVIDENCE DEPRIVED

PETITIONER OF A FAIR TRIAL.

Petitioner seeks to have this

Honorable Court grant certiorari on the

ground that the Florida Supreme Court

purportedly applied a constitutionally

impermissible standard in determining

whether the State's destruction of real

evidence in a capital case deprived the

petitioner of a fair trial. Respondent

asserts that this claim is not worthy of

certiorari review by this Honorable Court

for the reasons expressed below.

The gravaman of petitioner's claim is

=

es |

that the Florida Supreme Court focused

upon the character of the State's conduct

in destroying real evidence rather than

upon the materiality of the evidence, and

hence the prejudice to the defendant.

Petitioner contends that the Florida

Supreme Court's "variable analysis test"

is unconstitutionally stringent by

requiring a defendant to show greater

prejudice where the government has not

acted in bad faith. It igs significant to

note, however, that this claim was never

presented to the Florida Supreme Court.

Rather, in his briefs and in oral argument

before the Florida Supreme Court,

petitioner argued that application of the

variable standard analysis established by

the Florida Supreme Court in State v.

Sobel, 363 So.2d 324 (Fla. 1978), and

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

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

-_™

| elite i ii a maa iia iis |

to the facts of the instant case required

a conclusion that petitioner was denied

his right to a fair trial due to the

State's destruction of evidence. Thus,

petitioner's newly-articulated contention

that the Florida Supreme Court applies an

unconstitutionally stringent test was

never asserted by petitioner nor passed

upon by the Florida Supreme Court. It is

apparent that petitioner is changing the

basis of his claim in his petition for

writ of certiorari where this newly-

articulated ground was not raised in the

state court. Cf. Cardinale v.- Louisiana,

394 U.S. 437 (1969). Your respondent

asserts that a theory not asserted before

a state court is not cognizable before

this Honorable Court.

In addition to the non-assertion by

petitioner of the theory now advanced

before this court it is apparent that the

-10-

Florida Supreme Court's decision is

consistent with this Honorable Court's

decisions in Brady v. Maryland, 373 U.S.

83 (1963), United States v. Agurs, 427

U.S. 97 (1976), and California v.

Trombetta, 467 U.S. 479 (1984). Of

course, Brady and Agurs are "suppression"

cases whereas Trombetta is a decision of

this Honorable Court pertaining to

evidence which has not been "preserved" by

the State. It is significant to note that

in Trombetta, this Honorable Court placed

emphasis upon the "good faith" of the

State authorities where this Court noted

that the authorities did not destroy

breath samples in a calculated effort to

circumvent the due process requirement of

Brady. In the instant case, the Florida

Supreme Court made a specific finding that

there was not even a hint of bad faith by

the Florida prosecuting authorities. In

«its

distinguishing Brady and Agurs, the

Florida Supreme Court noted that, "In none

of those cases was the lost or destroyed

evidence completely unlinked to = any

active, or even forseeable prosecution."

The unusual facts of the instant case as

related above in the Statement of the Case

supply ample justification for this

Honorable Court to decline to exercise its

certiorari jurisdiction.

Additionally, petitioner has never

established that the excluded evidence was

"constitutionally material". If there is

a duty imposed by the United States

Constitution on the states to preserve

evidence, that duty is limited to evidence

which possesses an exculpatory vaiue that

was apparent before the evidence was

destroyed, and the evidence must be of

such a nature that the defendant would be

unable to obtain comparable evidence by

at Ou

1 OE

other reasonably available means. This

test of materiality as enunciated in

Trombetta is similar to the test of

materiality announced in Agurs, supra. In

accordance with Agurs, the Florida Supreme

Court recognized that the trial court in

the instant case "specifically found that

the destruction of the particular evidence

here in question did not prejudice

appellant's case, or create an otherwise

non-existent reasonable doubt."

Therefore, by recognizing that the

governmental officials acted in good faith

and by further recognizing that no

prejudice ensued. to petitioner, the

Florida Supreme Court has applied the

proper standard in assessing the

destruction of evidence claim.

The record of the instant cause which

was reviewed by the Florida Supreme Court

reveals that petitioner's claim of

atte

destruction of evidence was properly

adjudicated by the Florida state courts.

The exhibits which were destroyed were

only the State exhibits from the Sweet

trials. The defense exhibits were still

available at the Clerk's office.

Approximately 90 percent of the evidence

which was destroyed was documentary

evidence, copies of which were available

for use by the defense. There was never a

showing by petitioner that the test

results obtained for the Sweet trials

could not be used by petitioner's defense

team - the lab reports pertaining to the

sheet and other items of other physical

evidence were available (R.69-70, 76).

In his petition for writ of

certiorari, petitioner focuses upon the

bed sheet which was found outside the

bedroom where Maxcy's body had been found.

At trial, it was petitioner's theory that

ite

———V—

he could not have been responsible for

Maxcy's death inasmuch as he was seen

shortly after the homicide with no blood

on his’ clothes. Testimony at trial

indicated that there was considerable

blood in the bedroom and hallway

indicating that a struggle had occurred.

To rebut this theory, the State contended

that the sheet was wrapped around the

victim before he was stabbed to absorb the

blood. Applying the test of

constitutional materiality as enunciated

in Trombetta, it is apparent that

petitioner could not demonstrate

prejudice. Petitioner's claim that the

bed sheet had an exculpatory value is

tenuous and any exculpatory value would

not have been apparent before the items

were destroyed. More importantly, the

defense team was able to obtain comparable

evidence to support its "blood on the

«tZe

killers" theory where, as aforestated,

there was testimony revealing that

considerable blood was found in_ the

bedroom and hallway. Further, the medical

examiner testified that the victim had

been able to struggle for minutes after

being stabbed, that his heart would have

continued to pump blood during a struggle,

and that Maxcy's body had skin abraisions

on it. Combined with the fact that the

lab reports pertaining to the sheets were

available for use by the defense, it is

apparent that comparable evidence was

available to support the defense theory.

With respect to all the evidence from the

Sweet trial which was destroyed by the

State, petitioner has never demonstrated

that those exhibits possessed an

exculpatory value that was apparent before

the evidence was destroyed and was of such

a nature that the defendant would be

a$Ge

unable to obtain comparable evidence by

other means.

The instant case is unusual in that a

prosecution would never have ensued

against petitioner had not petitioner

severely beaten John J. Sweet and caused

Sweet to panic and seek the aid of law

enforcement officials in Massachusetts and

Florida. The State had preserved all

items of evidence for more than nine and

one half years subsequent to Maxcy's

murder, including approximately 5 years

after Sweet had been discharged. At the

time the items were destroyed, there was

no active prosecution or investigation nor

was it forseeable that the master-mind of

the murder would step forward after 15

years due to his fear of petitioner.

Confronted with these unusual facts, the

Florida Supreme Court applied the proper

standard in assessing petitioner's

destruction of evidence clain.

ai Te

POINT II

THE ADMISSION OF THIRD PARTY

TESTIMONY TO REBUT AN EXPRESS OR

IMPLIED CHARGE OF RECENT FABRI-

CATION OR IMPROPFR MOTIVE DID

NOT VIOLATE PETITIONER'S CONSTI-

TUTIONAL RIGHTS TO DUE PROCFSS

AND CONFRONTATION.

Petitioner's second point involves

the use by the State of a witness to

rehabilitate the State's chief witness,

John J. Sweet. It has never been

contended that during defense counsel's

vigorous cross-examination of Sweet an

express or implied charge of recent

fabrication or improper motive was raised.

Therefore, to rehabilitate Sweet, the

State presented the testimony of Abe

Namia, a private investigator who was

hired by John Sweet's attorney after Sweet

was charged with the murder of Charles Von

Maxcy. Your respondent has set forth the

testimony of Sweet and Namia in our

ay =

Statement of the Case, supra, and,

therefore, for the sake of brevity,

requests this Honorable Court to refer to

that Statement of the Case. A review of

that testimony reveals that the trial

court did not abuse its discretion by

permitting the testimony of Abe Namia.

Petitioner's primary concern with the

admission of Namia's testimony hinges unon

the fact that Sweet denied ever making any

statements to Namia. Thus, petitioner

reasons, testimony should not be admitted

as prior consistent statements where the

declarant denies ever making the

statements. However, this claim that

there must be a foundation by eliciting

the declarant's testimony that he made

prior consistent statements is unsupported

by any authority. The Florida Supreme

Court correctly ruled that Namia's

statements were sufficiently consistent

-19-

with Sweet's testimony to be admissible to

rebut an inference of recent fabrication

or improper motive. In United States v.

DeVore, 423 F.2d 1069 (4th Cir. 1970),

cert. denied, 402 U.S. 950 (1971), the

trial court had excluded rehabilitative

testimony relating to a specific incident

because the witness being rehabilitated

had not testified to the same incident.

The Fourth Circuit found that the

testimony was admissible as a _ prior

consistent statement designed to

corroborate the witness's entire

story. 3/ Similarly, in the instant

case, the Florida Supreme Court has

correctly ruled that Namia's testimony was

admissible as a prior consistent statement

37 ~=However, because the court could not

say that the trial judge's ruling

constituted an abuse of discretion, the

judgment was affirmed.

-20-

designed to corroborate the witness's

entire story. Indeed, a comparison of the

testimony of Sweet and Namia reveals that

the two stories were substantially

consistent so as to render’ Namia's

rehabilitative testimony admissible.

Here, Sweet was vigorously cross-examined

to such an extent that the introduction of

Namia's testimony was necessary to

rehabilitate Sweet. No right of

confrontation was abridged where Sweet and

Namia were available for, and indeed

subjected to, vigorous cross-examination.

This Honorable Court should decline to

exercise its certiorari jurisdiction where

the Florida Supreme Court properly ruled

that the trial court did not abuse its

discretion in permitting prior consistent

statements admitted to rebut an express or

implied charge of recent fabrication or

improper motive.

wit.

POINT IIl

THE DEATH PENALTY RECFIVED BY

PETITIONER WAS IMPOSED IN

ACCORDANCE WITH CONSTITUTIONALLY

PERMISSIBLE STANDARDS.

Petitioner also seeks’ certiorari

based upon his assertion that the death

penalty imposed in the instant case

constitutes cruel and unusual punishment.

His claime, however, have either been

affirmatively rejected by state and

federal courts or have not even been

properly presented so as to enable this

Honorable Court to exercise its certiorari

jurisdiction.

Petitioner claims that he has

properly asserted a claim that the Florida

death penalty statute is unconstitutional

because the death penalty is imposed

unevenly on the basis of the race of the

victim. He notes that this Honorable

o22-

Court has accepted jurisdiction in a

Florida case, Hitchcock v. Wainwright, No.

85-6756, cert. granted, 54 U.S.L.W. 3809

(Supreme Court June 9, 1986). Hitchcock

is simply inapposite to the instant case.

The Hitchcock issue concerns the necessity

for an evidentiary hearing in a federal

court as to the race of the victim, i.e.,

whether statistical evidence supports the

assertion that the Florida death penalty

is imposed unevenly on the basis of the

race of the victim. In the instant case,

petitioner has never requested a hearing

on this issue nor has he deemed this issue

significant to the extent of presenting

any motion to the state courts on this

ground. Rather, petitioner submitted a

short, conclusory allegation in his brief

before the Florida Supreme Court. The

record of the instant case reveals that no

motion was either filed or argued before

~23<

the trial court concerning this clain.

Thus, the issue has not even been

preserved and, therefore, is not in the

same posture as Hitchcock. This Honorable

Court should decline to exercise its

certiorari jurisdiction where a petitioner

has failed to present this claim in the

proper fashion to the state courts for

resolutiuon.

Also, this Honorable Court has

rejected the claim that Florida

unconstitutionally applies the death

penalty more often when the victim is

white than when the victim is black. See,

Sullivan v. Wainwright, 464 U.S. 109

(1983); Booker v. Wainwright, 764 F.2d

1371 (llth Cir. 1985), cert. denied, 106

S.Ct. 339 (1985).

Petitioner also complains that the

Florida death penalty statute provides for

arbitrary and capricious imposition of the

x

death penalty. In particular, petitioner

complains that two of the three

aggravating circumstances found by _ the

trial court were essentially the same. He

argues that a murder committed for

pecuniary gain and a murder committed in a

cold, calculated manner without any

pretense of morai or legal justification

are essentially the same conduct’ and

cannot be used separately to aggravate a

murder. This contention is simply without

foundation. In the instant case, the

trial judge found the aggravating

circumstances of pecuniary gain where

petitioner was hired and paid to commit a

murder. The trial judge further found

that the murder was cold, calculated and

premeditated based on evidence that the

murder was dispassionately conceived and

planned. Thus, different aspects of the

murder were considered and there was no

o25~

improper doubling of aggravating

circumstances. See, Squires v. State, 450

So.2d 208 (Fla. 1984); Agan v. State, 445

So.2d 326 (Fla. 1983).

In a general allegation, petitioner

claims that Florida's statutory scheme is

infirm in that it is incapable of avoiding

arbitrary and capricious infliction of the

death penalty. In support of his

proposition, he relies on Godfrey v.

Georgia, 446 U.S. 420 (1980). In Godfrey,

this Honorable Court determined that

because an unconstitutional aggravating

circumstance was considered by the Georgia

courts, imposition of the death penalty

for Godfrey's crimee was unconstitutional.

However, Florida's aggravating

circ-mstances have been repeatedly upheld

by this Honorable Court. See, e.g.,

Proffitt v. Wainwright, 428 U.S. 242

(1976). Thus, petitioner has not alleged,

Sh.

a

Stl il A lt te ewan Sin) niet Nay St Sa be

either before this Honorable Court or

before the state courts, a basis for the

assertion that Florida's death penalty

scheme is invalid.

In the instant case, three

aggravating circumstances were properly

found by the trial court which were

balanced against the mitigating finding of

the trial court that petitioner is the

only person who has received punishment in

the Maxcy murder. The imposition cf the

death penalty in the instant case was done

so following established precedent in

accordance with the dictates of this

Honorable Court. There is no

constitutional infirmity present to

justify the exercise by this Honorable

Court of its certiorari jurisdiction.

«F<

CONCLUS ION

The Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

JIM SMITH

ATTORNEY GENERAL

Assistant

eee lo

Assistant Attorney General

1313 Tampa Street, Suite

804, Park Trammell Bldg.

Tampa, Florida 33602

(813) 272-2670

torney General

-2?8-

tee

CERTIFICATE OF SERVICE

I, ROBERT J. LANDRY, counsel for

respondent, and a member of the Bar of the

United States Supreme Court, hereby

certify that on the 5% day of August,

1986, I served three copies of the

Response in Opposition to Petition for

Writ of Certiorari on Allen M. Dershowitz,

232 Brattle Street, Cambridge, MA 02138,

by a duly addressed envelope with postage

det fade fn

Assistant Attorney General

COUNSEL FOR RESPONDENT

prepaid.

-29-

APPENDIX

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 the

figures involved and the evidence adduced

at appellant's trial.

A-1

SS

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 immunity in return for her

testimony in the case, only Sweet was

originally tried. His first trial

resulted in a mistrial, and the conviction

resulting from his second trial 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

A-2

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 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 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 committed 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 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 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 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.

A-5

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.

A-6

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 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 guilty of

punishment, irrespective of the good faith

or bad faither 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. "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 to the defendant, if it

so contended.

In Salvatore v. State, 366 So.2d 745

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

(1979), we reiterated this balancing

A-8

standard, implicitly recognizing that each

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.

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. Citng the lack of

a statute of limitations for first-degree

murder, and appellant's status as a

suspect since the commission of the murder

A-9

in 1966, appellant urges that the state's

destruction of the evidence constituted a

breach of its extraordinary duty under

these facts.

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 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 a 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 ceses was the lost or destroyed

evidence completely unlinked to = any

active, or even foreseeable, prosecution.

On the unusual facts of this case,

A-10

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.

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

appelalnt 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 te4nded to defer to the findings of

the trial courts 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 appellant's case, or

A-11

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,

appellant 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 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

A-12

:

Sad

.s

f

:

4

{

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 requiremert of

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.

A-13

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 critical to the establishment of a

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.

A-14

a ee VY -

Next, appellant argues that the trial

court erred in failing to answer a

question addressed to it by the jury

during its deliberations. After several

hours of deliberation, the jury announced

that it had reached an impasse. Upon

receiving an Allen charge, Allen v. United

States, 164 U.S. 492 (1896), the jury

resumed its deliberations. The

interaction in question occurred when the

jury subsequently inquired of the court

whether "John J. Sweet received immunity

in Florida for first degree murder and

perjury before he gave information on the

Maxcy trial, and if he had anything to

gain by his testimony."

The trial court, while aware that

Sweet's testimony on cross-examination

established the existence of such

immunity, declined to explicitly answer

the jury's question concerning the crucial

issue since formulating an answer would

have required him to both interpret

Sweet's testimony and make a judgment as

to his motivation.

Rather, the trial court offered to

the jury to have Sweet's testimony read

back in portions designated by the jury.

A-15

atlantida

We can see no abuse of discretion in such

action. The court's insistence upon the

jury's rather than its own choice of the

passages to be re-read was proper, in

light of the latter's legitimate

hesitation to comment upon the evidence.

The jury question here involved matters of

fact, and this Court has held that a trial

judge need answer only questions of law

raised by jurors. State v. Ratliff, 329

So.2d 285 (Fla. 1976).

In rejecting appellant's contention

that the court below acted improperly in

this respect, we finally note that Florida

law has given the trial court a wide

latitude in deciding whether or not to

have testimony re-read to jurors upon

request. Fla. R. Cr. P. 3.410; DeCastro

v. State, 360 So.2d 474 (Fla. 3d 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

A-16

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.

Riebold, 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

appelalnt's assertion that the jury was

inadequately instructed, noting that no

additional or different instructions on

the matter wre 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

A-17

he was wanted in Highlands County,

Florida, for murder. After an agent

commented to appelant "I'm certainly sure

that Highlands County is going to place a

detainer on you once they 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.

A-18

The judge gave Florida Standard Jury

Instruction 3.06, the authorized jury

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 before recognized, the

standard jury instructions should he

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 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 straying

from the standard instructions, we have

A-19

held, does not require automatic reversal.

State v. Bryan, 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. list 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. State, 405 So.2d

470 (Fla. 3d DCA 1981).

At this point it may be helpful to

consider the actual instructions which

appellant here 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.

A-20

to wew—”w0wa wt! _——-_----

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 you wish to consider the

matter further.

It has tkane us a week to get

this far, and I would ask that

you retire and consider the case

further.

Appellant contends that these instructions

so strayed from permissible bounds that

they 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-21

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. Appeilant

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 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

mae 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 falel again

for you or for someone else when

it is really not necessary. You

have herad all the law. That is

all the evidence there is. That

is it as far as what was

presented here before you.

A-22

FBS Ma CT Mee De he EC a Oe RE A

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 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. Ist 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 Vv.

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 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.

In his seventh point on appeal,

appellant argues that he was denied his

sixth amendment right to the effective

assistance of counsel. Generally, such

A-24

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, 301 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 . 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 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., and 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.

|

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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 directed this murder, to

receive total immunity from prosecution

for this murder.

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An Appeal from the circuit Court in and

for Highlands County,

E. Randolph Bentley, Judge - Case No.

CR81-535

Barry Haight, Milton, Massachusetts; and

Donald J. 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

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