Appendix — Dugger v. Hargrave

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IN THE SUPREME COURT OF THE UNITED STATES eS

RICHARD L. DUGGER,

Secretary, Florida pe

suit Gerrections en

state Gf #iGride

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BENNETT H. BRUMMER

. Public Defender

_. KAREN MM. IEB a

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A _ Sopnsel for Respondent

INDEX

Excerpt Of state trial tranSCript..cciccccsccscere

SENTENCING OLGSS . cc cccccsccscssessscsvcsecsesses

ere

Opinion of Florida Supreme Court (direct appeal).

Petition £O£ RENGALING. «6 odes 66095400 06 644008 66%

Motion to Strike Petition for Rehearing..........

Order Denying Petition for Rehearing.........

Motion for Post-conviction Relief... .cccccccccce

Order Denying Motion for Post-conviction Relief..

Opinion of Florida Supreme Court (post-conviction appeal).

Order Of Dismissal. ..<sss-

Petition for Writ of Habeas Corpus...........

Brief of Respondent-Appellee (court of appeals en banc)...

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that the prosecutor's questions have been improper

as to form and he has not at all reached the question

ef whether this juror is qualified as a matter of law

to sit on a jury where there is a possibility of the

imposition of capital punishment, particularly in

light ef what I believe to be an erroneous description

of the system that the prosecutor has given to the

jury.

THE COURT: I'd better make

a better explanation of the process.

All right. Members of the jury,

you may or may not have read of the present systenx

under the laws of Florida concerning cases in which a

Gefendant is accused of first degree murder. All of

our present procedure is based on a fairly new law

of about two years, entirely different from the pro-

cedures that had been in effect for many years prior

to that time. How, in this State, as stated by the

prosecutor, we have what is known as a bifurcated trial,

and thet tern, difurcated-- I don't know why someone

had to invent such a word, but it means a trial in

two parts, and that isn't even quite true, because in

many instances there's only one part to the trial.

Right now, at this stage of the proceedings, we are

interestcd in only one thing, really, in addition to

seleccing a jury that is cgoing to be impartial and

fulfill their duty by listening to the instructions

on the law by the court and fitting that law to the

facts of the case as found by the jury. How, inasmuch

as the defendant is charged with first degree murder,

the first and maybe only part of the trial will be a

determination as to whether the jury finds under the

law and the facts that the dfendant is guilty of first

degree murder. How, in the event that ane jury says

not guilty, and not guilty of not only first degree

murder or any form of unlawful homicide, the case is

over; there won't be any second part of the trial.

How, likewise, if the jury instead of finding the

defendant guilty of first degree murder were to find

the defendant guilty of, second degree murder or third

degree murder or manslaughter, which are all to be

considered also under a charge of first degree murder

as what are called lesser degrees of unlawful homicide,

if the jury were to find the defendant guilty of one

of those lesser degrees, likewise, the trial as far as

the jury is concerned would be over, because then

under the law the court would impose the mntence with-

in the limits proscribed by the law. However, in the

event that the jury were to find unAnimously as is

required in any jury verdict on guilty or innocent,

find unanimously that the defendant is guilty of

first degree murder, then we go into the second phase

of the trial, because then the second phase is put

into operation by lew. The jury then would consider

whether or not to recommend the death penalty or life

imprisonment to the court.

How, in this regard the prosecu- '

tor left out a little which I perhaps had better in-

clude for the benefit of the jury. That second part

of the trial is not something upon which the jury is

supposed to make a decision just on a matter of their

own feelings or opinions arbitrarily. The law sets

forth eertain factors which the jury must_take into

consideration, and at that stage of the proceedings,

the court supplies the jury orally and in writing with

what are called aggravating circumstances which are

listed in the law and mitigating circunstances, cer-

tain other circumstances that are listed in the law.

The jury is asked to find which aggravating circuz-

stances, if any, are present in the case, which miti-

gating circumstances, if any, are present, weigh the

two, if there are some of each, and decide which out-

weigh the other, and then come in with a majority

opinion. It does not have to be unanimous, but only

@ majority, a majority opinion recommending to the

i)

court, to the judge, death penalty or life iuaprison-

ment with a siniajunz ef twenty-five years. That is not

binding on the court. The judge then makes a decision

@lso as to these mitigating circumstances and agere-

vating circumstances with the help of the recommenda-

tion of the jury and the judge makes the fiml deci-

sion on the death penalty or life imprisonment.

Do any of you feel that the eourt--

is anything that the court has said now raise any

question in your mind? Do you all feel that you under-

stand that?

It is a little complicated, but

after we get used to it, it's not so complicated, but

I do want to impress on you that that might not have

been explained first. The decision of the jury as to

life or death is not just an arbitrary one, but you

are supposed to cansider . certain factors, and reach

@ recommendation based on what you find those factors

to be.

How, Mrs. Levine, is that it--

Mrs. Lewis. All right. Now, Mrs. Lewis, you have

etated that, I believe, that under no circumstances

would you be able to vote for ea death penalty. Do I

understand you correctly?

MRS, LEWIS: Yes, sir.

7 ag2'k. 3.

JUL 23 875

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL

a CIRCUIT OF FLORIDA IN AND FOR DADE COUNTY

STATE OF FLORIDA CASE NO. 75-118 A

vs wre

HLED

LENSON A. HARGRAVE, FINAL JUDGMENT

DEFENDANT.

* ” o 7 - 7 * e Cléipx

JUL 18 1975

4

RICHARD P. Brink;

THIS CAUSE CAME on before the Court for trial by Jury,

and after deliberations a verdict was rendered, finding the

defendant guilty of Murder in the First Degree.

Thereafter, the defendant was adjudicated guilty by

the Court, and the jury after hearing additional matters,

retired to consider an advisory sentence pursuant to Florida

Statute 921.141 (2). The majority returned and in open

court recommended that this Court impose the death penalty

upon the defendant.

This Court, independent of, but in agreement with,

the advisory sentence rendered by the jury does hereby

impose the death penalty upon the defendant LENSON A. HARGROVE,

and in support thereof as required by Florida Statute 921.141

(3), submits this, its written findings upon which the sentence

of death is based.

The findings of the Court are as follows:

1. That the aggravating circumstances found by the

Court to be present and listed by the Court with the lettering

as set forth in Florida Statute 921.141 (5), are as follows:

(d) That the capital felony was committed while th

defendant was engaged in the attempt to commit a robbery

(e) That the capital felony was committed for the

purpose of avoiding or preveating a lawful arrest.

™™ £) That the capital felony was committed for pecuniary

gain. Rite.

(s) That the capital felony was especially heinous,

atrocious or cruel, in that, after initially shooting the victin

and while the victim lay helplessly bleeding on the floor, the

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defendant dela srately leaned over the co iter and shot the

victim in the head.

2. That none of the remaining aggravating circumstances, |

set out by statute to be considered, were proved beyond a

reasonable doubt.

3. That as to mitigating circumstances, the Court finds

as follows:

(a) That there is some evidence of prior criminal

activity on the part of the defendant; however, there have been

Gefendant has no significant history of criminal activity.

no prior convictions so that it must fairly be said that the

(b) That the defendant was not under the influence

;

of extreme mental or emotional disturbance when the capital

felony was committed. :

(c) That the victim was not a participant in the de- |

fendant's conduct nor did he consent to his acts.

(ad) That the defendant was not merely an accomplice

in the capital felony committed by another person-and that his

participation was not relatively minor.

(e) That the defendant did not act under extreme

duress or under the substantial domination of another person.

(f) That although there is some evidence of a personality |

defect in the defendant and some possibility of an impaired

capacity to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law, the Court finds

that such capacity was not substantially impaired.

(g) That the age of the covanespe at the time of the

Crime, that is, a few days less then 19 years, is a mitigating

circumstance; however, he was,at the time of the crime, self-

Suppoy ting as an adult being employed by a security company.

The Court finds that the defendant is of average intelligence

er possibly slicss*ly less than average int. iligence.

4. It mey be, as alleged by the defense, that there

coulé be some doubt as to whether the capacity of the defendant to

eppreciate the criminality of his conduct or to conform his

conduct to the requirements of law was impaired to some degree.

ac 9051 «& 475

21

There is no doubt that the defendant has « history of some

mental abnormalities which may yet be affecting the defendant;

however, it is the finding of the Court that such abnormalities

only constitute a personality defect. A great number, possibly

@ majority of all persons who commit crimes, also have this or a

similar type of personality defect.

5. The Court is in agreement with the Jury that the

aggravating circumstances in this case outweigh the mitigating

circumstances. Therefore, the Court has no choice under the

law but to impose the death penalty upon the defendant, LENSON

A. HARGRAVE.

WHEREFORE, IT IS,

ORDERED AND ADJUDGED as follows:

1. That you, LENSON A. HARGRAVE, be, and you are

hereby sentenced to death.

2. That you are hereby remanded to the custody of

the Dade County Department of Corrections to be conveyed to

the State Division of Corrections for execution of this sentence

according to law. 7p

DONE AND ORDERED in open Court, at Miami, Dade County,

Florida, this 18th day of July, A.D., 1975.

tase ede MP

CIRCUIT JUDGE

xe 9051 476

“J

*

NOT FINAL UNTIL TIME 2IRES TO FILE REHEARING ! FITION AND, IF FILED,

DETERMINED.

IN THE SUPREME COURT OF FLORIDA

JANUARY TERM, A. D. 1977

LENSON HARGRAVE, t

Appellant, :

vs. : CASE NO. sae |

STATE OF FLORIDA,

Circuit Court

Appellee. : Case No. 75-l118A

Fo

Opinion filed June 30, 1978

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

Gene Williams, Judge

Bennett H. Brummer, Public Defender; and Paul Morris, Assistant

Public Defender, Miami, Florida, for Appellant

Robert L. Shevin, Attorney General; and Carolyn M. Snurkowski,

Assistant Attorney General, Tallahassee, Florida, for Appellee

PER CURIAM.

This cause is before us on direct appeal from a conviction

of murder in the first degree and a sentence of death imposed by the

Circuit Court for Dade County, Florida. Jurisdiction vests in this

Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

In the early evening of May 1°, 1974, appellant committed

a robbery at a U-Tote-M Store in Miami. In a statement which appellant

later cave to police officers, he described what transpired at the

78

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scene of the crime. When appellant entered the store, only the clerk

was present. Appellant announced his intention to rob the store and

ordered the clerk to relinquish the money in the cash register. The

clerk's attempt to comply proved futile when the register jammed.

His demand not met, appellant shot the employee twice in the chest.

He then endeavored to open the cash register himself but as unable

to do so. Thereupon, a customer walked in. Appellant diverted him

without arousing suspicion. When the customer exited, appellant

proceeded to shoot hisgvictim for the third time. Appellant later

claimed that he fired the third shot from a fear of being apprehended.

After the killing, at a nearby parking lot, appellant met

a friend, Lawrence Karge, who had previously been employed at the

U-Tote-M Store in which therobbery and murder of the cashier occurred.

Karge had planned the robbery with Hargrave and had given appellant

detailed information about the store's alarm and security devices.

Karge drove Hargrave home, where the appellant remained for a short

time before leaving for his job as a night security guard.

Approximately seven months later, an informant named Terry

Morton contacted the Miami Police Department relative to the

U-Tote-M Store homicide. Both Karge and appellant, on separate

occasions, had told the informant about the homicide.

Two days after receiving this information, the police

placed the respective residences of Karge and Hargrave under

surveillance. Shortly thereafter a vehicle which contained the two

suspects was stopped. Appellant was taken to the homicide office

where he waived his Miranda rights and signed a statement confessing

to the killing and identifying the location of the murder weapcen.

At a suppression hearing, appellant's counsel sought to

prevent admission of both the inculpatory statement and the murder

weapon as the fruits of an illegal arrest. The trial court found

the confession voluntary. Both items were admitted into evidence.

At the conclusion of the trial, the jury found Hargrave guilty of

first degree murder.

At the penalty trial, testimony was received from both

|

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state and defense witnesses which suggested that the appellant was

mentally deficient, insecure, and fearful. The State also produced

two witnesses--Karge's girlfriend and the informant's sister--who

testified that the appellant had told each of them that he had

killed someone before, and that it would not bother him to kill again.

The jury returned an advisory sentence of death. Ata

sentencing hearing before the judge on July 18, 1975, Gefpnse counsel

moved that the court order a presentence report pursuant to

Fla. R. Crim. P. 3.710. Defense counsel proffered the fact that the

instant conviction wasethe defendant's first felony conviction. The

motion was denied. The trial judge entered the following judgment

imposing the death penalty.

_ THIS CAUSE CAME on before the Court for trial by Jury,

and after deliberations a verdict was rendered, finding the

defendant guilty of Murder in the First Degree.

Thereafter, the defendant was adjudicated guilty by

the Court, and the jury after hearing additional matters,

retired to consider an advisory sentence pursuant to Florida

Statute 921.141 (2). The majority returned and in open

court recommended that this Court impose the death penalty

upon the defendant. ,

This Court, independent of, but in agreement with,

the advisory sentence rendered by the jury does hereby

impose the death penalty upon the defendant LENSON A.

HARGROVE, [sic] and in support thereof as required by

Florida Statute 921.141 (3), submits this, its written

findings upon which the sentence of death is based.

The findings of the Court are as follows:

1. That the aggravating circumstances found by the

Court to be present and listed by the Court with the lettering

as set forth in Florida Statute 921.141 (5), are as follows:

(a) That the capital felony was committed while the

defendant was engaged in the attempt to commit a robbery.

(e) That the capital felony was committed for the

purpose of avoiding or preventing a lawful arrest.

(f) That the capital felony was committed for

pecuniary gain.

(h) That the capital felony was especially heinous,

atrocious or cruel, in that, after initially shooting the

victim and while the victim lay helplessly bleeding on

the floor, the defendant deliberately leaned over the

counter and shot the victim in the head.

2. That none of the remaining aggravating circumstances,

set out by statute to be considered, were proved beyond a

reasonable doubt.

3. That as to mitigating circumstances, the Court

finds as follows:

“= 10

(a) That there is some evidence of prior criminal

activity on the part of the defendant; however,-there have

been no prior convictions so that it must fairly be said

that the defendant has no significant history of criminal

activity.

(b) That the defendant was not under the influence

of extreme mental or emotional disturbance when the

capital felony was committed.

(c) That the victim was not a participant in the

defendant's conduct nor did he consent to his acts.

(a) That the defendant was not merely an accomplice

in the capital felony committed by another person and

that his participation was not relatively minor.

(e) That thgerdefendant did not act under extreme

duress or under the substantial domination of another

person.

(f) That although there is some evidence of a

personality defect in the defendant and some possibility

of an impaired capacity to appreciate the criminality

of his conduct or to conform his conduct to the require-

ments of law, the Court finds that such capacity was

not substantially impaired.

(g) That the age of the defendant at the time of

the crime, that is, a few days less than 19 years, is

a mitigating circumstance; however, he was, at the time

of the crime, self-supporting as an adult being employed

by a security company. The Court finds that the

defendant is of average intelligence or possibly slightly

less than average intelligence.

4. It may be, as alleged by the defense, that

there could be some doubt as to whether the capacity

of the defendant to appreciate the criminality of his

conduct or to conform his conduct to the requirements of

law was impaired to some degree. There is no doubt

that the defendant has a history of some mental

abnormalities which may yet be affecting the defendant;

however, it is the finding of the Court that such

abnormalities only constitute a personality defect. A

great number, possibly a majority of all persons who

commit crimes, also have this or a similar type of

personality defect.

5. The Court is in agreement with the Jury that the

aggravating circumstances in this case outweigh the

mitigating circumstances. Therefore, the Court has no

choice under the law but to impose the death penalty

upon the defendant, LENSON A. HARGRAVE.

WHEREFORE, IT IS,

ORDERED AND ADJUDGED as follows:

1. That you, LENSON A. HARGRAVE, be, and you are

hereby sentenced to death.

2. That you are hereby remanded to the custody of

the Dade County Department of Corrections to be

conveyed to the State Division of Corrections for execution

of this sentence according to law.

DONE AND ORDERED in open Court, at Miami, Dade County,

Florida, this 18th day of July, A.D., 1975.

/s/ GENE WILLIAMS

‘ —— —

Si CIRCUIT JUDGE

On this appeal appellant urges three points for reversal.

Each relates only to the sentence imposed. We restate the points

in the order of our treatment of them: (i) whether the imposition and

execution of the sentence of death under Section 921.141, Florida Stat-

utes (1975), constitute cruel and unusual punishment in violation

of the Eighth and Fourteenth Amendments to the United States

Constitution; (ii) whether the trial court erred in sentepcing the

defendant without the benefit of a presentence investigation report

as requested by defense counsel; and (iii) whether the trial court

erred in imposing the @eath penalty. Before directing our attention

to the specific points raised by appellant, we note that pursuant to

Fla. App. Rule 6.16b. we have reviewed the evidence to determine if

the interests of justice require a new trial. We conclude that the

verdict and the judgment of guilt do not fail for insufficiency of

the evidence. Implicit in this determination is our concurrence in

the ruling by the trial court upon the motion to suppress.

With respect to the first issue raised, this Court's

decision in State v. Dixon, 283 So.2d 1 (Fla. 1973), and the decision

of the United States Supreme Court in Proffitt v. Florida, 96 S.Ct.

2960 (1976), are dispositive.

To the same extent, our decision in Thompson v. State,

328 So.2a 1 (Fla. 1976), determines adversely to appellant his

assertion that the trial court was required by Fla. R. Crim. P. 3.710

to request a presentence investigation before sentencing Hargrave.

In Thompson this Court concluded, essentially, that upon return of a

verdict of guilty in a first degree murder case the discretion of

the trial judge is limited to two alternatives, i.e., death or life

imprisonment. Probation is not a sentence alternative and, therefore,

the second sentence of Fla. R. Crim. P. 3.710 is inapplicable in a

death case. The import of the mandatory provisions of Rule 3.710 is

made clear by the fact that it exempts the necessity for a presentence

investigation report for first felony offenders and those under age 18

where probation has already been determined by the judge to be the

appropriate sentence. Furthermore, that the failure of the trial court

\

to order an investigation was not prejudicial to appellant is apparent

from the face of the sentencing judgment. The trial court did not find

as an aggravating circumstance that appellant had previously been

convicted of another capital felony or of a felony involving the use

or threat of violence to another person. Rather the trial court

found in mitigation that although there was some evidence of prior

criminal activity on the part of the defendant, there were no prior

convictions "so that it must fairly be said that the defendant has no

significant history of criminal activity.”

We come now to hat part of our function of review under

this State's death statute which is different from the scope of this

Court's review in all other proceedings. We are mandated by Section

921.141(4), Florida Statutes (1975), automatically to review not

only the judgment of conviction, but also the sentence of death. As

pointed out in Proffitt v. Florida, supra, the final review of

sentence in this Court supplies the channeled discretion and

deliberation necessary to avert the constitutional deficiencies

condemned in Furman v. Georgia, 408 U.S. 238 (1972). However, this

Court's role is not and should not be to cast aside that careful

deliberation which the matter of sentence has already received by

the jury and the trial judge, unless there has been a material

departure by either of them from their proper functions prescribed

by Section 921.141, Florida Statutes (1975), or unless it appears

that in view of other decisions concerning imposition of the death

penalty the punishment is too great. State v. Dixon, supra.

In the instant case appellant maintains there has been

just such a departure by the trial judge in (i) finding two

aggravating circumstances arising out of the single act of attempted

robbery (those set forth in Section 921.141(5)(d) and (f), Florida

Statutes [1975]); (ii) finding that the capital felony was

especially heinous, atrocious, or cruel; and (iii) failing to find

the existence of three mitigating circumstances disclosed by the

evidence. The asserted mitigating circumstances are: (a) Section

921.141(6) (b) --defendant was under an extreme mental or emotional

._ 83 43

disturbance; (b) Section 921.141(6) (£)--the defendant's capacity to

conform his conduct to the requirements of law or appreciate the

criminality of his act was substantially impaired; and (c) Section

921.141(6) (e)--defendant was substantially dominated by another person.

We deal first with the aggravating circumstances. Although

Provence v. State, 337 So.2d 783 (Fla. 1976), condemns the doubling

up of the aggravating circumstance of pecuniary gain each! time a crime

such as robbery is concerned, the mere recitation of both circumstances

does not in all cases call for a condemnation of the sentencing

hearing and judgment. As State v. Dixon, supra, teaches us, the

statute does not comprehend a mere tabulation of aggravating versus

mitigating circumstances to arrive at a net sum. It requires a

weighing of those circumstances. Absent the circumstance of

pecuniary gain, there were ample other statutory aggravating

circumstances to place on the scale to weigh against the valid |

mitigating circumstances.

Appellant questions the trial court's finding of one of

those additional aggravating cixcunstances when he states that it is

improper under several of our earlier decisions to characterize this

capital felony as especially heinous, atrocious, or cruel. The trial

judge made this finding predicated upon the defendant's act of

deliberately shooting the victim in the head after he had already

rendered him helpless by shooting him twice in the chest. In more

common terms, the appellant in a calculated fashion "executed" the

victim to avoid later identification. A short colloquy from the

appellant's inculpatory statement is instructive on this point:

DETECTIVE MAJOR: "When you shot the clerk the third time,

did you intend to kill him?"

THE DEFENDANT: "yes, I did.”

DETECTIVE MAJOR: "Why did you want to kill the clerk?"

THE DEFENDANT: "Because I was scared, and I was aggravated."

DETECTIVE MAJOR: "Why were you scared?"

THE DEFENDANT: "I was afraid I was going to get caught."

oJeo

ne 44

To this may be added the testimony of Karge's girlfriend and Morton's

sister who stated that appellant had told each of them that he had

killed someone before, and it would not bother him to kill again.

The sum of all this evidence justifies a finding that the appellant's

act of firing the third shot into the head of the victim was

"extremely wicked or shockingly evil." See Alford v. State, 307 So.2d

{

433, 444 (Fla. 1975); State v. Dixon, supra.

Returning to appellant's argument that the trial judge

erred in failing to fipd the mitigating circumstances delineated

above, we respond that the jury and the judge could have resolved

the evidence in favor of appellant's position, but neither was

compelled to do so. We are not here dealing with a case where either

the jury or the court considered matters it should not have considered

or failed to consider matters it should have considered. Appellant

simply disagrees with the force and effect given to the testimony of

a psychologist and a psychiatrist at the sentencing hearing. The

trial judge conscientiously assessed the testimony of the experts and

found that although there was "some evidence of a personality defect

in the defendant and some possibility of an impaired capacity to

appreciate the criminality of his conduct or to conform his conduct

to the requirements of law, the Court finds that such capacity was not

substantially impaired." (Emphasis supplied) The trial judge further

observed that appellant is of average intelligence or possibly

slightly less than average intelligence. It is apparent, then, that

the trial judge did not ignore or fail to consider the psychological

evidence bearing on mitigation. Obviously, he and the jury were not

persuaded that it provided a sound basis for establishment of the

statutory mitigating circumstances.

The proposition that appellant was under the domination

of Karge is in the same posture. Althoughthe defense psychiatrist

offered evidence that Hargrave could be dominated, and although

appellant's mother testified that her son was dominated by Karge,

the State's psychologist, who tested both Hargrave and Karge,

85 . “Ss

concluded that appellant “certainly played the dominant role."

Clearly the jury and the judge who heard the testimony resolved the

conflict against the appellant.

In the performance of our constitutional duty, we have

reviewed the same testimony and evidence upon which the trial judge

and jury based their conclusions. We cannot say that the judgment

reached by them is at material variance with our ne SN of

the evidence, nor is it contrary to law. Accordingly, the judgment

of conviction and the sentence of death are hereby affirmed.

It is so oslanit.

OVERTON, C.J., ADKINS, ENGLAND and SUNDBERG, JJ., Concur

BOYD, J., Concurs in part and dissents in part with an opinion

HATCHETT, J., Concurs in part and dissents in part with an opinion

BOYD, J., Concurring in part and dissenting in part.

I concur in the majority opinion affirming appellant's

guilt. The aggravating circumstances found by the trial court

are supported by evidence in the record.

As to mitigating circumstances, the trial judge a

two: (a) Hargrave's youth at the time of the crime (he was

eighteen), Section eee and (b), no significant

history of prior criminal activity, Section 921.141(6) (a).

As recognized by the majority, there might be added, since

there is competent evidence of them in the record, two other

mitigating circumstances: that Hargrave's appreciation of

the criminality of his conduct was substantially impaired,

Section 921.141(6) (£), and that he was under the substantial

domination of another person, Section 921.141(6) (e).

In my opinion the quality of the two mitigating cir-

cumstances measured against the aggravating circumstances

tips the sentencing scale in favor of life. The balance is

more clearly in favor of life if the two mitigating circum-

stances not found by the trial judge, but which have some

support in the record, are considered.

I would reduce the sentence to life imprisonment without

eligibility for parole for twenty-five years.

1

Even the trial judge had second thoughts about the

"substantial impairment" circumstance. See Finding No.

p. 3, of the majority opinion.

’

17

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HATCHETT, J., concurring in part and dissenting in part

I concur in the conviction but agree with-appellant that

the trial judge committed error in sentencing him without benefit

of a presentence investigation report and would return the case

to the trial court for resentencing.

Florida Rule of Criminal Procedure 3.710 provides:

In all cases in which the court has discretion

as to what sentence may be imposed, the court |

may refer the case to the probation and parole

commission for investigation and recommendation.

No sentence or sentences other than probation shall

be imposed on any defendant found guilty of a first

felony offen or found guilty of a felony while

under the ade of 18, until after such investigation

has first been made and the recommendations of the

Commission received and considered by the sentencing judge.

The rule clearly requires a judge to order a presentence investi-

gation report in all cases where a defendant has not previously

been convicted of a felony. Harden v. State, 290 So.2d 551

(Fla. lst DCA 1974); Mitchum v. State, 292 So.2d 620 (Fla. lst

DCA 1974); Still v. State, 296 So.2d 67 (Fla. lst DCA 1974);

Nordone v. State, 307 So.2d 907 (Fla. 3rd DCA 1975); Lopes v.

State, 309 So.2d 591 (Fla. 2nd DCA 1975); Buckles v. State, 310

So.2a 748 (Fla. lst DCA 1975); Grubbs v. State, 311 So.2d 411

(Fla. 2nd DCA 1975); Davenport v. State, 317 So.2d 851 (Fla.

lst DCA 1975); Beverly v. State, 330 So.2d 527 (Fla. lst DCA

1976). The record shows that appellant had no prior felony

convictions. He was thus entitled to the benefit of a presentence

investigation.

Relying on Thompson v. State, supra, the majority holds

that once the jury returns a verdict of first degree murder the

trial court is exempt from the mandatory presentence requirements

of the rule. The court in Thompson based its decision on the

committee note following the rule:

The rule provides for the utilization of a pre-

sentence report as part of the sentencing process.

While use of the report is discretionary in all

cases, it is mandatory in two instances, the

sentencing of a first felony offender and of

a defendant under 18 years of age. Of course,

no report is necessary where the specific

sentence is mandatory, e. g., the sentence

88

18

-j)l-

sali : Y

of death or life imprisonment in a verdict

of first degree murder. (emphasis added)

This comment was written in 1972, prior to-Furman v.

Georgia, 408 U.S. 238 (1972) and prior to enactment of Section

921.141, Florida Statutes (1973). In 1972, the sentence of death

in a capital case was, as the comment states, mandatory in the

absence of a recommendation of mercy by the jury. In cases in

which the jury recommended mercy, life imprisonment was,mandatory.

Our present capital punishment scheme places in the trial judge

discretion he did not have at the time the rule was promulgated.

The comment based on, the old statute is no longer valid.

The majority holds “probation is not a sentence alternative,

and therefore the second sentence of Fla. R. Crim. P. 3.710 is

inapplicable in a death case." The rule itself is not limited

to cases in which probation is an alternative. It does not

dictate how many or what kind of sentencing alternatives the

trial judge must have. It speaks only in terms of "discretion

as to what sentence may be imposed." Florida judges now have

discretion (reasonable and controlled) as to what sentence may

be imposed in a capital case. State v. Dixon, 283 So.2d 1

(1973). This is all that is required to trigger the rule.

We so held in Swan v. State, 322 So.2d 485 (Fla. 1975) at

488:

P.S.I. reports are provided for in Fla. R. Cr. P.

3.710. Rule 3.710 vests the trial court with the

discretionary power to request a P.S.I. report in

cases wherein the trial court possessed discretion

as to the imposition of sentence. Section 921.141,

Florida Statutes, vests the trial court with the

limited discretion to impose either the death

penalty or life imprisonment even if the jury

recommends to the contrary. Thus, the discre-

tionary nature of Section 921.141 brings it

within the ambit of Rule 3.710.

The position taken by the majority, in its reliance on

Thompson, suggesting that there is no sentencing discretion

left in the trial judge raises serious questions concerning

*

Section 921.141, Fla. Stat. (1971) states in pertinent part:

(1) Recommendation to mercy.--A defendant found guilty by a jury

of an offense punishable by death shall be sentenced to death

unless the verdict includes a recommendation to mercy by the jury.

When the verdict includes a recommendation to mercy by the jury,

the court shall sentence the defendant to life imprisonment.

Rg

-12-

. ™

: . !

the constitutionality of our presen’ statute. Woodson v. North

Carolina, 428 U.S. 280 (1976). Thompson should be overruled,

not followed, in order to prevent any doubt as to the constitu-

tionality of our statute.

In imposing sentence in a capital case, the fundamental

respect of humanity underlying the Eighth Amendment requires the

trial judge to take into consideration the character and record

of the defendant as well as the offense for which he wes

convicted. Woodson v. North Carolina, supra. Practically

speaking, at a time when state attorneys are seeking the means

to pay witness fees¢for witnesses to travel from one county to

another where there has been a change of venue, -when public

defenders are hard pressed to get funds for depositions, it is

unrealistic to believe that a defendant facing sentence without

the benefit of presentence investigation reports will be able

to present to the sentencing judge out of state school reports,

health records, or other favorable information regarding his

character and record.

The rule as construed by the majority requires a pre-

sentence investigation report for all offenders under 18 years

of age or convicted of a first felony offense, except those

convicted of first degree murder. If presentence investigation

reports are to be mandatory for anyone, surely they should be

mandatory where one faces the ultimate penalty.

-13- 20

-*

i ox

. ws !

‘

IN THE SUPREME COURT OF FLORIDA

CASE NO. 48,135

LENSON ALFRED HARGRAVE, ) >

Petitioner, )

vs ) PETITION FOR REHEARING

STATE OF FLORIDA, )

Respondent. )

The appellant requests that this Court grant rehearing

in this cause

l On June 30, 1978 this Court filed a split (4-2)

opinion affirming the appellant's conviction and sentence of

death

2 On July 12, i978 counsel for the appellant filed

a Motion to Withdraw Opinion and for Leave to File Brief and a

Motion to Stay Time for Filing Petition for Rehearing Pending

uling on Motion to Withdraw Opinion.

3. On July 17, 1978, upon consideration of the latter

motion, this Court ordered that the “Petition for Rehearing is

extended until disposition of Motion to Withdraw or August 7,

1978, whichever occurs first.”

4 This petition for rehearing is being filed to

comply with the deadline However, counsel for the appellant

evbmits that withdrawal of the opinion is the appropriate

action to be taken by this Court for the reasons set forth

in the Motion to Withdraw and thus renews said Motion

5 In the event the Motion to Withdraw is not granted,

the following grounds are presented in support of this petition

for rehearing

THE FLORIDA DEATH PENALTY STATUTE

UNCONSTITUTIONALLY LIMITS CONSIDERA-

TION OF MITIGATING CIRCUMSTANCES

97

amis

In promulgating the Florida death penalty statute,!

the Floride Legislature assumed that mitigating-circumstances

would have to be limited in order to comply with the ruling in

Furman v. Georgia, 498 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346

(1972) that unbridled jury discretion to impose or recommend

a death sentence was constitutionally prohibited. This

legislative intent was relied upon by this Court in gooper v.

State, 336 So.2d 1133 (Fla. 1976). Cooper held that the trial

judge had properly excluded non-statutory mitigating evidence

concerning: Coopgr's employment, the co-defendant's reputation

for violence and Cooper's attempts to avoid the co-defendant.

The exclusion of the evidence in mitigation of the death

sentence comported with the intent of the Florida Legislature:

The sole issue in a sentencing hearing

under Section 921.141, Florida Statutes

(1975), is to examine in each case the

itemized aggravating and mitigating

circumstances. Evidence concerning

other matters have no place in that

proceeding any more than purely specu-

lative matters calculated to influence

a sentence through emotional appeal.

Such evidence threatens the proceeding

with the undisciplined discretion

condemned in Furman v. Georgia, 408

U.S. 238, 92 5-tt. 2726, 33 L.£d.2d

346 (1972)?

7

The legislative intent to

avoid condemned arbitrariness

pervades the statute. Section

921.141(2) requires the jury

to render its advisory sentence

“upon the following matters:

(a) Whether sufficient aggra-

vating circumstances exist as

enumerated in subsection (6):

ether sufficient mitigating

circumstances exist as enumerated

in subsection (7), which outweigh

the aggravating circumstances

found to exist... ." (emphasis

added). This limitation is re-

peated in Section 921.141(3),

governing the trial court's

decision on the penalty. Both

sections 921.141(6) and 921.141(7)

begin with words of mandatory

limitation. This may appear to

be narrowly harsh, but under

Furman undisciplined discretion

is abhorrent whether operating

for or agaimst the death penaity.

—

Section 921.141, Florida Statutes (1972).

‘a 2-98 ; 22

Cooper v. State, supra at 1139. (The continuing vitality of

Cooper is evidenced by the opinion filed in this cause wherein

the majority concluded that the defendant's psychological

deficiencies did not provide “a sound basis for establishment

of the statutory mitigating circumstances." Slip opinion at 8.)

The same legislative intent pervaded the Ohio death

penalty statute which limited defendants to statutorily enumer-

ated mitigating circumstances. That limitation led dhe Court

in Lockett v. Ohio, ___ -U.S. _ = (1978), to hold the Ohio

statute unconstitutjonal as violative of the Eighth and Four-

teenth Amendments to the Constitution of the United States.

Noting that the Ohio Legislature limited the mitigating

circumstances in response to Furman ,*

the plurality held:

There is no perfect procedure for

deciding in which cases governmental

authority should be used to impose

death. But a statute that prevents

the sentencer in all capital cases

from giving independent mitigating

weight to aspects of the defendant's

character and record and to circun-

stances of the ‘offense proffered in

mitigation creates the risk that the

death penalty will be imposed in spite

of factors which may call for a less

severe penalty. When the choice is

between life and death, that risk is

unacceptable and incompatible with

the commands of th¢ Rights and Four-

teenth Amendments.

* * *

The limited range of mitigating

circumstances which may be considered

by the sentencer under the Ohio statute

is incompatible with the Eighth and

Fourteenth Amendment. To meet consti-

tutional requirements, a death penalty

statute must not preclude consideration

of relevant mitigating factors.

Quite clearly, the Florida Legislature has precluded

5

consideration of relevant mitigating circumstances~ by limiting

Lockett v. Ohio, supra, n. 7.

' 98 S.Ct. at 2965.

° Ibid.

Obviously relevant mitigating circumstances such as prospects

for rehabilitation, employment Background, life sentences imposed

in similar cases, lack of premeditation, familial responsibility,

military background, recognition of guilt, are not listed in the

lorida death penalty statute.

99 23

-34 - _—

t .>) 2

{ | =

defendants to those circumstances listed in Section 921.141(6) (a)-(g).©

--* Thus, the Florida death penalty statute suffers from

the same constitutional infirmities as the Ohio statute.

Accordingly, rehearing should be granted and the sentence of

death reversed and reduced to life pursuant to § 775.082(2),

Florida Statutes.

aa

THE FLORIDA DEATH PENALTY

TATUTE WAS UNCONSTITUTIONALLY

PLIED AT THE SENTENCING PRO-

CEEDINGS.

At the commencement of the advisory sentencing pro-

ceeding, the jury was impermissibly instructed’ that its

consideration of mitigating circumstances was limited to those

enumerated in the death penalty statute, even though the :

jury had heard (and was about to hear) evidence of mitigating

In upholding the Florida death penalty statute in Proffitt v.

Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), the

Supreme Court of the United States mistakenly assumed that Florida

defendants would not be so limited. The Court so stated in

Lockett, 93 S.Ct. at 2965-2966.

Although the Florida statute approved

in Proffitt contained a list of miti-

gating factors, six members of this

Court assumed, in approving the statute,

that the range of mitigating factors

listed in the statute was not exclusive.

R. 984. The lack of objection to the instructions does not

bar review of the instructions. In Terminiello v. Chicago, 337

U.S. 1, 3-5, 69 S.Ct. 894, 93 L.Ed. IT3SI (1949) and Stromberg v.

California, 283 U.S. 359, 363-365 (1931), jury instructions pur-

porting to construe a state statute permitted conviction upon

grounds that would be federally unconstitutional (alternatively

with other grounds that would be constitutional). In neither

case did defense counsel object to the instructions; rather,

in each case, a general attack was made on the validity of the

entire statute under the federal constitution, as is the case here.

(R. 473). In both cases, the upholding of the federal constitutionai

contentions resulted in the overturning of the convictions, not-

withstanding the lack of objections to the instructions.

Note also the general rule of O'Connor v. Ohio, 385 U.S. 92,

87 S.Ct. 252, 17 L.Ed.2d 189 (1966), that federal constitutional

claims cannot be waived by failing to raise them prior to the

United States Supreme Court decision (here, Lockett v. Ohio) which

announces their very existence.

-4- .400

c- ' ' ' ." 1

\

circumstances not Listed in the statute.® The jury was given

these erroneous instructions in writing upon the conclusion of the

advisory sentencing proceeding. (R. 985). 7

Moreover, the trial judge himself limited his

consideration of mitigating circumstances to those listed in

the statute. He stated that he could not "go outside of"

the enumerated mitigating circumstances to which he had

restricted the jury. (R. 1091). The trial court felt bound

by the statutory "standards" which were legislatively promul-

gated, in his opinion, "to eiiminate as much as possible the

individualistic characteristics and personalities of various

defendants. . .." (R. 1105). Thus, the trial court's

sentencing order, regarding mitigating circumstances, is

limited to a discussion of the statutory circumstances only.

(R. 1108-1110, 1224-5).

The trial court's blatant disregard for the individual

characteristics of the defendant resoundingly clashes with

the holdings of Roberts (Stanislaus) v. Louisiana, 428 U.S.

325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Woodson v. North

Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976);

Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929

(1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49

L.Ed.2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.

2909, 49 L.Ed.2d 859 (1976). These decisions, which require

individualized sentencing in capital cases, led to the following

rule enunciated in Lockett v. Ohio, supra:

[W]e conclude that the Eighth and

Fourteenth Amendments require that

the sentencer, in all but the rarest

The jury was instructed that the advisory sentence was to be

based upon evidence heard while trying the guilt or innocence

of the defendant as well as evidence heard at the advisory sentencin

proceeding. (R. 982). Mitigating evidence adduced, such as

the defendant's employment (R. 997), the defendant's lack of

intelligence (R. 991), the defendant's brain damage (R. 991-2,

1005-6), the defendant's drug usage (R. 992, 1046), the defendant's

sociopathic personality (R. 993, 1000, 1045), the defendant's

deviant thoughts and weak ego (R. 994), the defendant's honesty

and forthrightness (R. 999, 1048), the defendant's parents’

desires to prevent the defendant from associating with the

co-defendant (R. 1051), parental guidance and responsibility (R. 105

etc., could not be considered by the jury because of the limiting

instructions.

—

ae 25

; se a ‘ : ti , i ats . i = |

'

kind of capital case, not be pre-

cluded from considering as a miti-

gerne factor, any aspect of a

efendant's character or record end

any of the circumstances of the

offense that the defendant proffers

as a basis for a sentence less than

death. We recognize that, in non-

capital cases, the established practice

of individualized sentences rests not

on constitutional commands but public

policy enacted into statutes. The

considerations that account for the

wide acceptance of individualization

of sentences in noncapital cases surely

cannot be thought less important in

capital cases. Given that the inm-

position of death by public authority

is so profoundly different from all

other penalties, we cannot avoid the

conclusion that an individualized

decision is essential in capital cases.

The need for treating each defendant

in a capital case with that degree of

respect due the uniqueness of the

individual is far more important than

in noncapital cases. A variety of

flexible techniques--probation, parole,

work furloughs, to name a few--and

various post conviction remedies, may

be available to modify an initial

sentence of confinement in noncapital

cases. The nonavailability of corrective

or modifying mechanisms with respect to

an executed capital sentence underscores

the need for individualized consideration

as a constitutional requirement in in-

posing the death sentence.

98 S.Ct. at 2965. .

In the case at bar, the defendant was not afforded

individualized consideration by either the jury or the judge.

As such, the death sentence in this case lacks "the need

for reliability in the determination that death is the appro-

priate punishment in a specific case," Woodson v. North Carolina,

428 U.S. at 305 (1976), and impermissibly conflicts with the

Eighth Amendment rule in Lockett which was designed to assure

the requisite reliability by averting “the risk that the death

penalty will be imposed in spite of factors which may call

for a less severe penalty.” Lockett v. Ohio, 98 S.Ct. at

2965. Wargrave's sentence of death cannot stand.

-6- 402 26

Ill.

A NEW SENTENCING HEARING

IS REQUIRED PURSUANT TO

ELLEDGE v. STATE, 346 So.2d

Elledge v. State, 346 So.2d 998 (Fla. 1977) announced

the rule that a defendant sentenced to death is entitled to a

new sentencing hearing where an aggravating circumstance has

been improperly considered in the weighing process of aggravating

and mitigating circumstances. The reasoning was clearly enunciated:

Wowfd the result of the weighing process '

by both the jury and the judge have been

different had the impermissible aggra-

vating factor not been present? We

cannot know. Since we cannot know and

since a man's life is at stake, we are

compelled to return this case to the

trial court for a new sentencing trial

at which the factor of the Gaffney

murder shall not be considered. See

Miller v. State, 332 So.2d 65 (Fla.

1976); Messer v. State, 330 So.2d

137 (Fla. 19/6).

346 So.2d at 1003. This holding was reaffirmed in Jackson v.

State, __— So.2d (Fla. ," Case No. 48,165, March 9, 1978),

discussed infra at n. 10 and Gibson v. State, 351 So.2d 948

(Fla. 1977).

In the case at bar, the impermissible aggravating factor

was the finding that the capital felony was committed for

pecuniary gain.? Consideration of this factor was impermissible

pursuant to the rule announced in Provence v. State, 337 So.2d

783 (Fla. 1976), which bars the weighing of the aggravating

factor of pecuniary gain, § 921.141(5)(f), where that aspect

of the crime was also deemed to constitute the aggravating

factor that the crime was committed while the defendant was

engaged in a robbery, § 921.141(5)(d).

In the opinion filed in this case, this Court recognized

that such an impermissible factor entered into the weighing

process. But rather than follow the precedent of Elledge

The prosecutor argued to the jury at R. 1059-1060, and

to the judge at R. 1102 that both aggravating factors (d) and

(£) applied. The judge agreed in his sentencing order at

R. 1223.

and afford the defendant a new sentencing hearing, this Court

discounted the consideration of the impermissible factor in

one sentence:

Absent the [impermissible aggravating]

circumstance of pecuniary gain, there

were ample other statutory aggravating

circumstances to place on the scale to

weigh against the valid mitigating cir-

cumstances.

Hargrave v. State, slip opinion at 7. |

How can this possibly be true of Hargrave and not

Elledge, especially where the trial court found no mitigating

circumstances in hfs order in Elledge's case, and the trial \

judge in Hargrave's case found at least two? The equal protection

and due process violations which result from this disparate

treatment are obvious. Moreover, this type of "harmless error"

approach to a capital case, -° violates the previously discussed

|

|

|

|

|

Lockett and Woodson Eighth Amendment rules designed to assure

the requisite reliability in determining the appropriateness of |

|

}

the death penalty in a particular case. '+

” And by nomeans can one reasonably suggest that the error here

is harmless "beyond a reasonable doubt," which is the applicable

standard for constitutional error. Chapman v. California, 386

U.S. 18 (1967). At best, three aggravating circumstances were

applicable to Hargrave. (See R. 1223-4). Two statutory mitigating

circumstances were established to the satisfaction of the trial

court. Evidence supporting an additional two statutory mitigating

circumstances was sufficient so

“that the jury and the judge could

have resolved the evidence in favor

of appellant's position, ss

Slip opinion at 8.

It is impossible to ensure "beyond a reasonable doubt" that the

outcome of the weighing process would not have been different absent

the impermissible consideration of the pecuniary gain circumstance.

Thus, where one aggravating circumstance is treated as two in

violation of Provence and even one mitigating circumstance is

present, reversal is required. See Jackson v. State, So.2d

(Fla., Case -No. 48,165, March 9, 1978) where a Provence violation —

was not zeversible error only because there were no mitigating cir-

cumstances.

.

The Florida death penalty statute was approved due to the

reliability guaranteed by its requirement that the weighing process

be performed by the jury and then by the trial judge prior to the

independent review by this Court. State v. Dixon, 283 So.2d 1

(Fla. 1973). The harmless error approach of this Court to Hargrave’:

sentence deprives this defendant of the safeguard of this initial

dual-step weighing process in violation of the Equal Protection Clau:

104

< oe.

}

As in Elledge, at least a doubt must exist as to

what weight the jury and judge gave the impermissible pecuniary

gain circumstance. Ordinarily, reversal is required where

there is a doubt as to whether a judgment rests upon a

constitutionally unsound footing. See, e.g.., Shuttlesworth v.

City of Birmingham, 382 U.S. 87, 91-92 (1965). See also,n. 10,

supra. Obviously, that rule must apply with added force in

death penalty cases; the taking of human life on the bbasis

of any ambiguity as to whether constitutional requirements

were observed would be manifestly intolerable. This Court has

frequently assert {a its "responsibility and obligation .

to deal cautiously with judgments imposing the extreme penalty,”

Williams v. State, 117 So.2d 473, 476 (Fla. 1960), because

"[tihere is absolute finality in an executed sentence of death,”

Wells v. State, 98 So.2d 795, 801 (Fla. 1957), and “errors which

could make the difference between life and death can hardly be

deemed harmless and trivial." Pait v. State, 112 So.2d 380,

386 (Fla. 1959). See also, Coxwell v. State, ___ $eo.26

(Fla., Case No. 51,013, July 20, 1978).

The Eighth and Fourteenth Amendments to the Constitu-

tion of the United States and Elledge v. State, supra, require

reversal for a new sentencing hearing.

IV.

THE LOWER COURT'S FINDING THAT

THE MURDER OF WHICH THE DEFENDANT

WAS CONVICTED WAS COMMITTED FOR

THE PURPOSE OF AVOIDING OR PRE-

VENTING A LAWFUL ARREST OR EFFECT-

ING AN ESCAPE FROM CUSTODY WAS

IMPROPER AND MANDATES REVERSAL

PURSUANT TO ELLEDGE v. STATE,

SUPRA.

Section 921.141(6)(e), Florida Statutes, lists the

following as an aggravating circumstance:

The capital felony was com-

mitted for the purpose of avoid-

ing or preventing a lawful arrest

or effecting an escape from custody.

In the case at bar, the trial court found this

aggravating circumstance to have been applicable. (R. 12-23).

This Court neither approved nor disapproved this finding.

However, the finding was not applicable to the case at bar.

In Gibson v. State, 351 So.2d 948 (Fla. 1977) the

trial court made the following finding regarding the inap-

plicability of this aggravating circumstance:

(e) Whether the murder of which

the defendant was convicted was

committed for the purpose of

avefding or preventing a lawful

arrest or effecting an escape

from custody.

Finding: The murder had the pur-

pose of silencing the victims of

the robbery. It was not, however,

directly committed for the purpose

of avoiding or preventing a lawful

arrest or effecting an escape from

custody.

351 So.2d at 951, n. 5. Although this Court held that the trial

court in Gibson had improperly interpreted aggravating circum-

stances (d) and (f), the above reasoning was not held by this

Court to be an erroneous interpretation of aggravating

circumstance (e).

The same reasoning applies to the case sub judice.

No proof beyond a reasonable doubt established that Lenson

Hargrave committed the murder directly for the purpose of

avoiding or preventing a lawful arrest or effecting an escape

from custody. At best, the state can only contend that Hargrave

intended to silence the victin.

The Equal Protection Clause of the Fourteenth Amend-

ment to the Constitution of the United States mandates that

the defendant be afforded the same application of this ag-

gravating circumstance as was afforded the defendant in Gibson.

The improper consideration of this aggravating cir-

cumstance mandates reversal since mitigating circumstances

exist. Elledge v. State, supra. See also, Jackson v. State,

supra.

-10-, a a

iad Tee a

v.

THE LOWER COURT'S FINDING THAT

THE DEFENDANT'S EMPLOYMENT WAS

AN AGGRAVATING CIRCUMSTANCE WAS

IMPROPER AND MANDATES REVERSAL

PURSUANT TO ELLEDGE v. STATE,

SUPRA.

The trial court found that although the defendant's

age was a mitigating circumstance, this circumstance |was off-

set by the fact that the defendant was "at the time of the

crime, self-supporting as an adult being employed by a security

company." (R. 1224).

Thus, the defendant's employment status was weighed

as an aggravating circumstance. Yet, employment status is

not a statutorily delineated circumstance. See § 921.141(5).

Thus, its consideration was erroneous. Proffitt v. Florida,

428 U.S. at 250, n. 8 (1976); Elledge v. State, 346 So.2d 998

(Fla. 1977).

As such, the defendant is entitled to a new sentencing

hearing since mitigating circumstances were found. Ibid; see

also, Point III, supra and the federal constitutional provisions

cited therein.

VI.

THIS COURT IMPROPERLY RELIED

UPON A NONSTATUTORY, IRRELEVANT

CIRCUMSTANCE TO SUPPORT THE

SENTENCE OF DEATH.

In Huckaby v. State, 343 So.2d 33.n. 11 (Fla. 1977)

this Court held:

The trial judge found that

Huckaby had a propensity to commit

rape, and therefore the very f

that he was alive would create

risk of harm to many persons an

menace society. This attempt ¢t

predict future conduct is witho

a

K

-

-

relation to any statutory ager

circumstance and must be strict!

This Court violated the Huckaby holding by using the

following factor to support a death sentence

-1l- | 107 _ si

[tyhe testimony of Karge's girl- \

riend and Morton's sister who

stated that appellant had told -

each of them that he had killed ‘

someone before, and it would not

bother him to kill again.

Slip opinion at 8.

Whether the appellant would kill again is an irrelevant

non-statutory aggravating circumstance. Huckaby v. State, supra. !?

Additionally, the reliance upon this factor suggests !that this

Court may have been laboring under the misconception that

the defendant has committed a previous crime by having “killed

someone before." “et, the comment referred to the crime in

question (R. 1033-1034, 1038-1039); the defendant has no prior

criminal activity.

A re-evaluation of whether the crime was especially

heinous, atrocious or cruel, without consideration of this

impermissible factor, is required.

VII.

THE TRIAL COURT'S DENIAL OF

THE DEFENDANT'S REQUEST FOR A

PRESENTENCE INVESTIGATION AND

THIS COURT'S APPROVAL OF THE

DENIAL VIOLATES THE DEFENDANT'S

RIGHTS TO EQUAL PROTECTION UNDER

THE LAW AND DUE PROCESS OF LAW AS

GUARANTEED BY THE FOURTEENTH AMEND-

MENT TO THE CONSTITUTION OF THE

UNITED STATES AND THE PROTECTION

FROM CRUEL AND UNUSUAL PUNISHMENT

AS GUARANTEED BY THE EIGHTH AMEND-

MENT TO THE CONSTITUTION OF THE

UNITED STATES.

Presentence investigations should be accorded all

defendants convicted of capital offenses. See slip opinion

- Indeed, this was the precise ground raised by defense counsel

in his objection to this testimony at the advisory sentencing

mroceeding. (R. 1029). Additionaily, it should be noted that

the erroneous admission of this testimony was not raised on

appeal because the trial judge did not consider the testimony

in holding the offense to be “especially heinous, atrocious,

or cruel " (R. 1224), as this Court has.

-12- . &

Rat x i

} t

at 11-13 (Hatchett, J., dissenting). *° However, even if a man-

datory requirement for a presentence investigation is not

approved by a majority of this Court, defense counsel's

requests for a presentence investigation should have been

granted on equal protection, due process, and cruel and un-

usual punishment grounds.

The defendant, an indigent, was represented at trial by

court-appointed counsel who was unable to conduct a dufficient

investigation into the defendant's background:

[Defense counsel]: We have not

purgued his background, or an

investigation into his background

to such an extent that we can say

with any degree of certainty that

a PSI would not benefit him or

benefit the Court, either way, in

some small way, no matter how small

that degree might be, it certainly

couldn't harm, and I just really

don't see the objection.

(R. 1091).

Obviously, had the defendant been monied, he would

have had the financial means ‘to have conducted an investigation

into his background. Such a discrimination against indigent

persons cannot withstand constitutional scrutiny under the

Equal Protection and Due Process Clauses of the Fourteenth

Amendment and the cruel and unusual punishment proscription

of the Eighth Amendment to the Constitution of the United States.

Proffitt v. Florida, supra; Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Gideon v. Wainwright. 372

U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Griffin v. Illinois,

351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Shuman v. State,

we

+3

In the opinion filed in this case, this Court concluded that

Rule 3.710, Fla.R.Crim.P. and the interpretation of the rule in

Thompson v. State, 328 So.2d 1 (Fla. 1976) justify the denial of

presentence investigations in capital cases. However, since a

state procedural rule cannot interfere with a defendant's right

to defend against the state's charges, Chambers v_ Mississippi,

410 U.S. 284 (1973), it follows that Rule 3./10 cannot interfere

with a defendant's fundamental right to defend against the state's

desire to impose death and a defendant's right to adduce non-

statutory mitigating and enumerated mitigating circumstances.

“(W]hen a state procedural rule comes into conflict with a funda-

mental constitutional right it is clear that the state rule must

yield." Braswell v. Wainwright, 463 F.2d 1148, 1154 (5th Cir.

1972). Accordingly, Rule 3.710 must yield.

wy _ 33

t:> : ©. . - **

i ‘

a

358 So.2d 1333 (Fla. 1978). This discrimination also deprived

the defendant of his rights to access to the courts, see Bounds v.

Smith, 430 U.S. 817 (1977), and effective assistance of counsel.

See United States v. Pinkney, 551 F.2d 1241, 1248-1251 (D.C. Cir.

1976).

The denial of the defendant's request for a presentence

investigation in this case also interferes with the defendant's

right to "proportionality review." In Proffitt v. hette.

supra, the Supreme Court of the United States stressed this

Court's obligation, to enforce this right:

Under Florida's capital-sentencing

procedures, in sum, trial judges are

given specific and detailed guidance

to assist them in deciding whether to

impose a death penalty or imprisonment

for life. Moreover, their decisions

are reviewed to ensure that they are

consistent with other sentences imposed

in similar circumstances.

428 U.S. at 252.

This “proportionality review," that is, review by

this Court of its decisions to ensure proportionality of death

sentences imposed, cannot result in even-handed justice if

some defendants are afforded investigative means and others

are arbitrarily denied them. This practice can only result in

the arbitrary and capricious imposition of death in violation

of Furman v. Georgia, 408 U.S. 238 (1972), as this Court recognized

in State v. Dixon, 283 S$o.2d 1, 10 (Fla. 1973):

Review by this Court guarantees

that the reasons present in one

case will reach a similar result

to that reached under similar cir-

cumstances in another case. No

longer will one man die and another

live on the basis of race, or a

woman live and a man die on the

basis of sex. If a defendant is

sentenced to die, this Court can

review that case in light of the

other decisions and determine

whether or not the punishment is

too great.

In approving Florida's death penalty statute, the Supreme Court

of the United States viewed this Court's proportionality review

as a protection “designed to assure that the death penalty will

44. 110

34

~~

not be imposed on a capriciously selected group of convicted

defendants.” Proffitt v. Florida, 428 U.S. at 258 (1976).

This protection can not be provided the defendant where he

was denied the means to present individualized sentencing

information due to his indigency.

That presentence investigations are excellent sources

of information relevant to the mitigating circumstances has

been recognized by this Court and the Supreme Court ok the

United States. Gardner v. Florida, 430 U.S. 349 (1977); Proffitt

v. Florida, 428 U.S. at 252, n. 9; Gregg v. Georgia, 428 U.S.

Fas

at 189, n. 37; Hargrave v. State, slip opinion at 11-13 (Hatchett,

J., dissenting); Gibson v. State, 351 So.2d 948, 950 (Fla. 1977);

Swan v. State, 322 So.2d 485, 488-489 (Fla. 1975); Songer v.

State, 322 So.2d 481, 484 (Fla. 1975).

Section 921.231, Florida Statutes, which governs the

contents of presentence investigation reports evidences their

relevance to statutory and non-statutory mitigating circumstances

921.231. Presentence investigation

reports -- (1) Any Circuit Court of

the state, when the defendant in a

criminal felony case has been found

guilty or has entered a plea of nolo

contendere or guilty, shall, and in mis-

demeanor cases in its discretion may,

refer the case to the Department of

Offender Rehabilitation for investi-

gation and recommendation. t shall

be the duty of the department to make

a report in writing to the Circuit

Court at a specified time prior to

sentencing, depending upon the circum-

stances of the cffender and the offenses.

Said report shall include:

(a) A complete description of the

situation surrounding the criminal

activity with which the offender has

been charged, including a synopsis of

the trial transcript, if one has been

made. and, at the offender's discre-

tion, his version and explanation of

the act

(b) The offender's educational back-

ground.

(c) The offender's employment back-

ground, including any military record,

his present employment status, and

his occupational capabilities.

(d) The social history of the offender,

including his family relationships

marital status, interests, and related

activities

3S

: C-?

(e) The residence history of the

offender.

(f) The offender's medical history

and, as appropriate, a psychological

or psychiatric evaluation.

&s Information about the environments

to which the offender might return or

to which he could be sent should a

sentence of nonincarceration or community

supervision be imposed by the court.

(h) Information about any resources

available to assist the offender, such

as:

1. Treatment centers. |

2. Residential facilities.

3. Vocational training programs.

4. Special education programs.

5. Services that may preclude or

supplement commitment to the de-

artment.

(i) The views of the person preparing

the report as to the offender's moti-

vations and ambitions and an assessment

of the offender's explanations for his

criminal activity.

(j) An explanation of the offender's

criminal record, if any, including his

version and explanation of any previous

offenses.

(k) A recommendation as to disposi-

tion by the court. It shall be the

duty of the department to make a written

determination as to the reasons for its

recommendation. The department shall

include an evaluation of the following

factors:

l. The appropriateness or inappro-

priateness of community facilities,

programs, or services for treatment or

supervision.

2. The ability or inability of the

department to provide an adequate level

of supervison for the offender in the

community and a statement of what consti-

tutes an adequate level of supervision.

3. The existence of other treatment

modalities which the offender could use

but which do not exist at present in

the community.

(2) In those instances in which a pre-

sentence investigation report has been

previously compiled, the department may

elect to complete a short-form report

updating the above information.

(3) All information in the presentence

investigation report should be factually

presented and verified if reasonably

possible by the preparer of the report.

On examination at the sentencing hearing,

the preparer of the report, if challenged

on the issue of verification, shall

bear the burden of explaining why

it was not possible to verify the

challenged information.

(4) The nonconfidential portion of the

presentence investigation shall constitute

the basic classification and evaluation

document of the Department of Offender

q°*

“a 36

Rehabilitation and shall contain

a recommendation to the court on

the treatment program most appro=

priate to the diagnosed needs of

the offender, based upon the

offender's custody classification,

rehabilitative requirements, and

the utilization of treatment

resources in proximity to the

offender's home environment.

In its opinion in this case, this Court held that

the denial of the request for the presentence invest figation

was not prejudicial to the defendant because "[t)he trial

court did not find as an aggravating circumstance that

appellant had prefiously been convicted of another capital

felony or of a felony involving the use or threat of violence

to another person." Slip opinion at 6. This conclusion can

neither be reconciled with the broad-based contents of pre-

sentence investigation reports under § 921.231, nor the

United States Supreme Court decisions in Gardner, Proffitt,

and Gregg, nor this Court's decisions in Gibson, Swan and

Songer. 1“

Additionally, the prosecutor's argument in opposition

to the defendant's request for a presentence investigation

report, which the trial court accepted, was meritless:

[Prosecutor]: Judge, just briefly,

I feel that a presentence investi-

gation, if it were going to touch

upon the criteria listed in the

statute, might be of some relevance.

However, it does not.

The Court, I believe, is bound

by the criteria outlined in the

statute as to the aggravating and

mitigating circumstances, and that

has already been brought out before

the Court and the jury, and a pre-

sentence investigation would not

cover those items again, and since

those are the only items which are

to be considered in the passage of

sentence, that is my feeling for

believing that the presentence

investigation would not serve any

purpose, because I don't believe

(R. 1090). the Court can go outside of those criteria.

7

14

Indeed, this Court's conclusion only recognizes subparagraph

(1)(j) of § 921.231, totally ignoring the multitude of additional

information which the statute requires to be included in pre-

sentence invescigation reports.

-1?- 413

Se

: ' i

Under Lockett, the prosecutor's etginent fails since

the scope of eviderice in mitigation is not limited by those

criteria listed in the statute.

Thus, the unconstitutional application of Florida's

death penalty statute in violation of Lockett v. Ohio, supra,

served not only to deprive the jury and judge of consideration

of non-statutory mitigating circumstances, as previously

noted, but also served to deprive the indigent defendant of a

vital means of effectuating the right to adduce non-statutory

mitigating circumstances.

a

The defendant is thereby entitled to a new sentencing

hearing with the benefit of a presentence investigation.

VIII.

THE DEFENDANT'S MENTAL ILLNESS

MANDATES REVERSAL OF THE DEATH

SENTENCE PURSUANT TO HUCKABY V.

STATE, 343 So.2d 29 (Fla. 1977)

In Huckaby, supra, this Court ordered the reduction

of the defendant's death sentence to life even though the

trial judge had found two applicable aggravating circumstances

and no mitigating circumstances. The basis for reversal was

the causal connection between the defendant's mental illness

and the heinous crime he committed:

There was almost total agreement

on Huckaby's mental illness and

its controlling influence on hin.

Although the defense was unable

to prove legal insanity, it amply

showed that Huckaby's mental illness

was a motivating factor in the com-

mission of the crimes for which he

was convicted.

343 So.2d at 39.

In the case at bar, two court-appointed experts

examined the defendant. One concluded that the defendant

probably had brain damage (R. 1000), that the psychological

tests revealed that the defendant could not respond normally

to day to day situations (R. 1006-7), that the defendant's

= ai oy

wit

ability to deal with life was impaired (R. 1007), and that

the defendant's abnormal mind was directly responsible for

his inability to conform his conduct to the law. (R. 1010).

The other court-appointed expert concluded that the

defendant suffered from mental disturbances which could have

resulted from his extensive drug usage (R. 1046), and that

the defendant's psychological illnesses caused him to "do

things without thinking about them, without sessentnd."

(R. 1047).

Thus, —_- Huckaby: (1) the experts agreed on

Hargrave's mental illness; (2) although the defense was unable

to prove legal insanity, it amply showed that Hargrave's

mental illness was a motivating factor in the commission

of the crime; (3) there was a causal connection between the

mitigating and aggravating circumstances since, assuming the

crime to have been heinous or atrocious or cruel, the nature

of the commission of the crime was a direct consequence of the

defendant's mental illness. °

The trial judge's rejection of Hargrave's mental

illness is no different than the trial judge's failure to

consider Huckaby's mental illness. The same reasons that

compelled this Court to reduce Huckaby's sentence to life

mandate reduction of Hargrave's sentence to life. In fact,

Hargrave's case is more compelling than Huckaby'’s since two

additional mitigating circumstances were established to the

satisfaction of the trial court: the defendant's age and lack

of prior criminal activity. In Huckaby, the trial judge found

no mitigating circumstances.

Obviously, this case meets both prongs of the test

announced in the Hargrave opinion for reversing a death recom-

mendation and sentence:

[T]his Court's role is not and

should not be to cast aside that

careful deliberation which the

matter of sentence has already

received by the jury and the trial

judge, unless there has been a

material departure by either of

“19-415

ew"

=

~vy »

‘ }

}

tuem from their proper funcicons

pee 7 age by Section 921.141,

lorida Statutes (1975), or unless

it appears that in view of other~

decisions on imposition of

the death penalty the punishment

is too great.

Slip opinion at 6.

The trial judge materially departed from his proper

function, as did the trial judge in Huckaby, by rejecting the

evidence of mental illness; and in view of other decdsions,

particularly Huckaby, the death penalty is too great.

al

IX.

DEFENSE COUNSEL WAS IMPROPERLY

DENIED CLOSING ARGUMENT TO THE

JURY AT THE ADVISORY SENTENCING

PROCEEDING.

Defense counsel objected to the closing argument

procedure adopted by the trial court at the advisory sentencing

hearing. The court penalized the defense for putting on

testimony of the defendant's mother by allowing, as a result

of the testimony, the state to present two closing arguments

to the jury and placing defense counsel's argument between

the two. (R. 1023, 1028). Defense counsel had suggested,

as is now embodied in Rule 3.780(c), Fla.R.Crim.P., that

each side be given one argument with the state presenting

the first argument. (R. 1025). The denial of defense counsel's

request was error.

THE DEFENDANT IS ENTITLED TO A

NEW TRIAL SINCE A CROSS-SECTION

OF THE COMMUNITY WAS EXCLUDED FROM

THE JURY VENIRE.

The defendant renews herein the arguments presented

in paragraphs 2-6 in the Motion to Withdraw Opinion and for

Leave to File Brief

-20-

XI.

THE DEFENDANT IS ENTITLED TO

APPELLATE REVIEW BY SEVEN JUSTICES.

The defendant renews herein the argument presented

in paragraph 8 of the Motion to Withdraw Opinion and for Leave

WHEREFORE, for the above reasons, the appellant

to File Brief.

requests that rehearing be granted in this cause.

I HEREBY CERTIFY that a true and correct copy of

the foregoing Petition for Rehearing was mailed to the Office

of the Attorney General, The Capitol, Tallahassee, Florida 32304,

this 4th day of August, 1978.

Respectfully submitted,

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit of

Florida

1351 Northwest 12th Street

Miami, Florida 33125

By: VIL Of ——

/*AUL MORRIS

a aes ose Fubine Defender

-21- ad _ 41

IN THE SUPREME COURT OF FLORIDA

LENSON HARGRAVE, : |

Appellant, y

vs. : CASE NQ. 48,135

STATE OF FLORIDA, : CIRCUIT COURT NO. 75-118A

Appellee.

MOTION TO STRIKE PETITIONER'S

PETITION FOR REHEARING

COMES NOW Respondent, State of Florida, by and through

its undersigned counsel and files this its motion to strike

Petitioner's petition for rehearing in that it violates Fla.R.

App.P. 6.17, 3.14 and the new Fla.R.App.P. 9.330, and as grounds

would show:

1. Three issues were raised by Petitioner in his

main brief and addressed by this Court in its rendition dated

June 30, 1978. Specifically,

"(I) Whether the imposition and execution

of the sentence of death under Section 921.141,

Florida Statutes (1975), constitutes cruel and

unusual punishment in violation of the Eighth

and Fourteenth Amendments to the United States

Constitution;

(II1) Whether the trial court erred in sen-

tencing the defendant without the benefit

of a presentence investigation report as

requested by defense counsel; and

(I11) Whether the trial court erred in

imposing the death penalty."(Slip opinion 5)

Fla.R.App.P. 3.14(b) states:

"Contents of Petition. The vetition for

rehearing shall not assume a new ground or

118 te ae

Cow wy

position from that taken in the original

arguments or briefs upon which the cause

was submitted, and must be set forth ton-

cisely, and without argument, the alleged

omissions, oversights, causes or grounds

on which it is based."

Pursuant to Fla.R.App.P. 9.330(a) for rehearing under

the new appellate rules, said rule states in part:

"x * * The motion shall state with par- |

ticularity the points of law or fact which

the court has overlooked or misapprehended.

The motion shall not re-argue the merits

of the court's order."

ad

A cursory review of Petitioner's petition reveals

that he has failed to comply with any and all requirements of

the rehearing rules. Said petition is twenty-one pages long and

argues new issues not previously raised or takes a new position

from the position originally taken. See Points W,; Was. WhEts Oe

X, and XI. Im regard to Points I, II, III, IV, and VII, Peti-

tioner's petition fails to set forth "concisely, and without

argument, the alleged omissions, oversights, causes or grounds

on which it is based."

In Williams v. State, 113 So.2d 833 (Fla. 1959) this

Court opined:

"Because of a palpable and egregious vio-

lation of Florida Appellate Rule 3.14 subd,

b, 31 F.S.A. providing that petitions for

rehearing ‘must set forth concisely, and

without argument, the alleged omissions,

oversights, causes or grounds on which it

is based and pursuant to Florida Appellate

Rule 3.14, subd. d providing for the strik-

ing of such petition for a substantial vio-

lation of any material provision of the

rule,

It is ordered that said petition be and

the same is hereby striken.”

As the Third District Court held in Sherwood v. State,

111 So.2d 96 (Fla. 3d DCA 1959) and quoting from the First

District Court's opinion in State ex rel. Joytex Realty Company

v. Green, 105 So.2d 817 (Fla. 1 DCA 1958):

"The sole and only purpose of a petition

for rehearing is to call to the attention of

the court some fact, precedent or rule of

law which the court has overlooked in render-

ing its decision. Jucees, 9 human and

'y ° ae

The court noted several violations of the rule pertaining to

rehearing petitions, to-wit:

petition of a written argument with supporting citations, (2)

arguing or quarreling with the court over correctness of its

conclusions on the points it has considered and decided, (3)

subject to the frailties of humans. It

follows that there will be occasions when

a fact, a controlling decision or a ——

r

of law even though discussed in the brief

or pointed out in oral argument will be

inadvertently overlooked in rendering the

judgment of the court. There may also be

occasions when a pertinent decision of the

Supreme Court or of another District Court

of Appeal may be rendered after the pre-

paration of briefs, and even after oral

argument, and not considered by the court.

It is to meet these situations that the

rules provide for petitions for rehearing |

as an orderly means of directing the court's

attention to its inadvertence.

It is not a compliment to the’intelligence,

the competency or the industry of the court

for it to be told in each case which it

decides that it has ‘overlooked and failed

to consider’ from three to twenty matters

which, had they been given proper weight,

would have necessitated a different decision.

Certainly it is not the function of a peti-

tion for rehearing to furnish a medium

through which counsel may advise the court

that they disagree with its conclusion, to

reargue matters already discussed in briefs

and oral argument and necessarily considered

by the court, or to request the court to

change its mind as to a matter which has

already received the careful attention of

the judges, or to further delay the termi-

nation of litigation." 111 So.2d at 97-98

"x * * (1) the inclusion in the

advancing new or other points or theories not previously relied

on, and (4) rearguing the cause in advance of a permit from

the court for such reargument.* * *." 111 So.2d at 99,

and

finding the petition before it in violation of the rule ordered

the petition for rehearing striken.

Further this Court in English v. State, 31 Fla. 356,

12 So. 689 (Fla. 1839) and State ex rel. Russell v. Barnes, 25

Fle.

not be granted where the questions that the petition alleges

to have been omitted from the consideration of the court were

86, 5 So. 703 (Fla. 1889) concluded that rehearing should

necessarily involved in and determined by the decision, though

not in express terms in the rendition.

3-420

cy "

Respondent would respectfully submit that the briefs

in this cause were filed in February 1976 and the final rendition

by this Court issued June 30, 1978. Obviously, the court took

under consideration all those decisions rendered by the court

during the pendencyof Petitioner's appeal which were applicable

to the issues raised and within the scope of the court's

jurisdiction. See this Court's slip opinion dated June 30,

|

1978. °

WHEREFORE, Respondent moves this Court to strike the

petition for rehearing or in the alternative strike the petition

and allow Petitioner leave to file a proper petition for rehearing

in compliance with the aforementioned appellate rules.

Respectfully submitted,

ROBERT L. SHEVIN

Atfortney General

1. { SNURKOWSKI

t Attorney General

“ TRE CAPITOL

Tallahassee, FL 32304

904 488 0290

COUNSEL FOR APPELLEE

CCRTIFICATE OF SERVICE

I certify that a true copy hereof has been furnished

Honorable Bennett Brummer, Public Defender, Eleventh Judicial

Circuit, 1351 N.W. 12th Street, Dade County Ju

Miami, FL 33125, via Mail, this, 19th day of st, 1978.

Assistant Attorney General

OF COUNSEL FOR APPELLEE

121

IN THE SUPREME COURT OF FLORIDA

TUESDAY, FEBRUARY 6, 1979

LENSON HARGRAVE,

Appellant, - CASE NO. 48,135

Vv. : Circuit Court cdse No. 75-118A

STATE OF FLORIDA,

Appellee. * :

rer ere

Upon consideration of Petition for Rehearing filed by attorney

for Appellant,

IT IS ORDERED by the Court that said Petition be and the same

is hereby denied. Appellee's Motion to Strike is thereby moot.

ENGLAl’), C.J., ADKINS, OVERTON, SUNDBERG and ALDERMAN, JJ., concur

BOYD and HATCHETT, JJ., dissent

~

Motion to Withdraw Opinion and for Leave to File Brief filed

by attorney for Appellant is hereby denied.

ENGLAND, C.J., ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN,

JJ., concur

A True Copy TC

cc: Hon. Gene Williams, Judge

TEST: Hon. Richard P. Brinker, |

Paul Morris, Esquire

Carolyn M. Snurkowski, Es

Court

| 122

— <== __ —_——

‘ ets j

IR THE CIRCUI \COURT OF THE

ELEVENTH JUDIGIAL CIRCUIT OF FLORIDA

D8 AND FOR DADE COUNTY

i

CASE BO: 75-118A (Judge Tanksley)

THE STATE OF FLORIDA,

Plaintifé,

vs. MOTION TO VACATE JUDGMENT AND SENTENCE

LENSON A. HARGRAVE,

wre er wr Ww WE

Defendant.

The defendant, Lenson A. Hargrave, by. and through under-

signed counsel, moves this Court to vacate the judgment and death

sentence in the above-styled cause, pursuant to Rule 3.850 of the

Florida Rules of Criminal Procedure, on the grounds that said judg-

__ment and sentence are violative of the Fifth, Sixth, Eighth and

Fourteenth Amendments to the Constitution of the United States and

“Article I, Sections 2, 9, 16, and 17 of the Constitution of the State

of Florida.

THE FACTS

Defendant was charged by indictment filed January 9, 1975

with first-degree murder. He was tried on July 10-11 and 14-15.

The evidence adduced at trial, based entirely upon the statements

of defendant, established that defendant, on May 19, 1974, entered

a convenience store in Miami, intending to commit a robbery. The

clerk was unable to open the cash register. Defendant shot hin,

attempted unsuccessfully to open the register, and then shot the

clerk a second time. Defendant was arrested approximately seven

Defendant was represented in initial Circuit Court proceedings by

Assistant Public Defenders Linnea R. Snyder and Stephen I. Mechanic.

The Public Defender was discharged as counsel prior to trial, and

defendant was represented at trial by Douglas Williams and Michael

Tarre as court-appointed counsel. Defendant was represented on direct

appeal and in certiorari proceedings in the Supreme Court of the

United States by Assistant Public Defender Paul Morris. Defendant

is being represented in post-trial proceedings by current counsel.

24 -_ =

months after the homicide, and subsequently con.essed to his partici-

pation in the offense. The evidence adduced at trial further estab-

lished that the robbery had been instigated and planned by Lawrence

Karge, the co-defendant in this ease."

The jury returned « guilty verdict on July 15, 1975 and

subsequently returned an advisory sentence recommending the imposi-

tion of the death sentence. On July 18, 1975, the court imposed a

sentence of death, finding four aggravating circumstances applicable:

that the homicide was committed during the course of an attempted

robbery; that the homicide was committed for the purpose of avoiding

arrest; that the homicide was committed for pecuniary gain; and that

the homicide was especially heinous, atrocious and cruel. The court

found as mitigating circumstances that defendant had no significant

history of criminal activity and his age at the time of the crime

(just short of his 19th birthday); the court, while noting thar the

evidence adduced at the sentencing hearing established "that the

defendant has a history of some mental abnormalities which may yet

be affecting (him)" and that "there could be some doubt as to

whether the capacity of the defendant to appreciate the criminality

of his conduct or to conform his conduct to the requirements of

law was impaired to some degree", rejected these factors as mitigating

circumstances. .

A timely appeal was taken from the judgment and sentence

to the Supreme Court of Florida. The Court issued its decision on

June 30, 1978 and denied a timely filed petition for rehearing on

February 6, 1979. A petition for writ of certiorari was subsequently

filed in the Supreme Court of the United States: the petition was

denied on October 15, 1979 and a timely filed petition for rehearing

was denied on December 3, 1979.

The Florida Cabinet, sitting as the Board of Executive

Clemency, heard clemency arguments on September 12, 1980. The

—

The facts in this motion are excerpted from the opinion of the

Supreme Court of Florida in this case, which is reported at 366

So.2d 1 and is included in the attached appendix.

o2- 48

2-425 ;

A . =

Governor signed a deat warrant for defendant o feptember 17, 1980;

execution is scheduled for October 8, 1980 at 8:30 A.M.. Mo pricr

post-conviction motions have been filed in this cause.

GROUNDS FORK RELIEF

TT

rt

THE PROSECUTOR AND THE TRIAL COURT

IMPROPERLY COMMENTED UPON. THE STLENCE

I. SECTION 9 OF THE CONSTITUTION OF

THE STATE OF FLORIDA, AND RULE 3.250

OF THE FLORIDA RULES OF CRIMINAL

PROCEDURE .

Comments which infringed upon the absolute right of

defendant to remain silent at trial occurred at several points

during the course of the trial proceedings:

1) voir. dire: During jury selection, counsel for

defendant inquired of the jurors regarding their ability to fairly

try the case if defendant did not testify (R. 360-63) .° One juror

stated his opinion that an accused should testify (R. 362-63), and

counsel for defendant requested an excusal for cause (R. 363). The

prosecutor requested and was granted ap opportunity to question the

juror (R. 363-64), and the following then transpired:

Mr. Goldstein (Assistant State Attorney) :

Mr. Tucker, we can all understand that you might

want to hear something from the defendant.

Maybe you will hear the State's evidence and you

might feel my own mind, "Well, I would like

to hear what the defendant has to say about that.”

Okay. We can understand that, but the court is

going to --

Mr. Tarry (Co-counsel for defendant): Excuse

me. 1 must object to that comment, because I

don't believe I could understand that.

Mr. Goldstein: I believe I said --

Mr. Tarry: I would strenuously object.

The Court: Sustained. The jury will dis-

regard the last statement of the prosecutor.

Mr. Tarry: And I would reserve ay right to

make certain motions later on.

Mr. Goldstein: You might feel at the close

of the case that you would want the defendant to

=

Relevant excerpts from the trial transcript are included in the

second portion of the appendix to this motion. Page references are

to the original pagination.

. AQ

3-126 a

7" . ~~ L ~

\ : |

make soma statement; however, i. the judge

tells at the close of the case that

aieaa the endant does not have to say anything,

he does not have to take the stand, an if

the judge-- (RB. 364-65).

Counsel renewed his objection and moved for « mistrial

(R. 365-66). The prosecutor responded that he had merely been

referring to the instruction which the court would give on this matter

(R. 366). The court properly noted that the instruction on an

accused not testifying is only given, under Florida law, if the

accused requests it, and counsel for defendant stated that it had not

been his intention to do so (R. 366). The court stated that it was

“going to try to cure it” (R. 368), and over objection of counsel |

instructed the jurors that the burden remained upon the prosecution

to prove defendant guilty (R. 369-72). The juror in question, Mr.

Tucker, then responded:

_ . . LE the defendant is going to sit there

in living image and not say anything, well,

(it) don’t seem like a trial. He is guilty

from -- (R. 373).

Counsel renewed the motion for mistrial and requested the

court to strike the jury panel (R. 374-75). The motion was denied

(R. 376-77). The court then excused the particular juror, stating,

"I wish now that I had granted the motion then instead of going to

try and make it better and let the prosecutor go into it." (R. 378).

2) trial proceedings: During redirect examination

of Terry Morton, a prosecution witness who had testified to inculpa-

tory statements of defendant prior to his arrest, the prosecutor

inquired regarding the statements of defendant, and counsel for

defendant objected on the ground that this subject had not been

covered on cross-examination (R. 737). The prosecutor responded,

“This is an area Lenson Hargrave ***brought up." (R. 737). Counsel

for defendant moved for a mistrial (R. 738-39). The prosecutor

stated in response that he had been referring to the statements of

defendant (R. 739-40). The motion for mistrial was denied (R. 740).

ra

The instruction was not requested and was not given by the court.

a a

ws 127

‘~~ Sy |

3) coments by the court: Durin, bis cross-examination

of Detective Major, the lead investigator, counsel for defendant sought

to establish that criminal charges against Terry Morton had been heldizn

abeyance pending his trial testimony (KR. 798). Objections to this

questioning were sustained (R. 798-800). Counsel then inquired

regarding the personal knowledge of the officer, and the following

transpired:

Q. Do you know it to be a fact, Detective

yo poy that as of May of 1975, there had been a

delay in the disposing of criminal charges

against -—

Mr. Goldstein: Objection, Your Honor.

Mr. Williams (Co-counsel for defendant): I'm

asking for his factual knowledge.

Mr. Goldstein: There is any number of reasons

why cases get tried and do not get tried and get

delayed.

Mr. Williams: I would be happy to have it

explained.

*. * *

The Court: These are things you can show

through your own witmesses, really. (R. 800-01).

Counsel objected to this comment and reserved his tight to

move for a mistrial (R. 801). He subsequently moved for a mistrial

(R. 841). The court responded that its comment had been that “if

you want to bring all these things out, you're going to have to call

witnesses", and denied the motion (R. 842).

4) closing argument: In his closing argument, the

prosecutor made reference to the opening statement of counsel for

defendant, and argued that counsel had represented that certain facts

would be adduced; he stated that these facts had not been established

(R. 926). He continued this argument:

It is true that you are not permitted to

go outside the evidence that you heard, except

to the extent that you are to apply your common

sense in interpreting this evidence, but you

are not to go outside this evidence and specu-

late as to what other people might know or why

didn't we hear from those people, and what

would they have said had they been called.

You're not permitted to do that.

I might remind you, at this time, Mr.

Williams has the same subpoena power the State

has. (R. 927-28).

Counsel objected to this comment and reserved his right to

move for a mistriai (R. 928). A subsequent motion for mistrial was

-5- | 128 51

‘ 8 ‘ ; :

denied by the court (h ‘948-49). | :

It is fundamental that comments upon the silence of an

X.

accused at trial, either from the prosecution or the court, violate

the Fifth Amendment privilege against self-incrimination. Chapman v.

California, 386 U.S. 18 (1967); Griffin v. California, 380 U.S. 609

(1965). "(1)t is the fact of comment rather than the source of comment

that effects denial of the right to remain silent." Sublette v. State,

365 So.2d 775, 778 (Fla. 3d DCA 1978). In Florida, such comment is

prohibited, whether it be direct or indirect, and any comment which

may be interpreted as referring to the silence of an accused is improper

regardless of the intent with which it was made and regardless of the |

susceptibility of the comment to & different construction. See, e.g:

Trafficante v. State, 92 So.2d 811, 814 (Fla. 1957); Smith v- State,

344 So.2d 915, 920 (Fla. lst DCA 1977); Mathis v. State, 267 So.2d 846,

848 (Fla. 4th DCA 1972); Jones v. State, 260 So.2d 279, 281 (Fla. .3d DCA

1972). A comment which can be interpreted as a reference to the

silence of an accused is improper even if it was “innocently or

inadvertently made” and regardless of “whether any harm was actually

intended." Singleton v. State, 183 So.2d 245, 251 (Fla. 2d DCA 1966).

Thus, comments by a prosecutor which, on their face, appear to be

neutral recitations of the right of an accused to remain silent or to

the subpoena power enjoyed by an accused, or comments on the right of

an accused to produce witnesses, are forbidden. See, e.g. Carter v.

State, 199 So.2d 324 (Fla. 2d DCA 1967); Tolliver v. State, 133 So.2d

565 (Fla. 3d DCA 1961).

Such comments are per Se prejudicial, are not subject to

the harmless error doctrine, and cannot be remedied by curative instruc

tions. See David v. State, 369 So.2d 943 (Fla. 1979); Shannon v. State

335 So.2d 5 (Fla. 1976); Way _v. State, 67 So.2d 321 (Fla. 1953); Smith

nee

v. State, 358 So.2d 1137 (Fla. 3d DCA 1978); Kembro v. State, 346 So.2c

1083 (Fla. lst DCA 1977); Young v. State, 280 So.2d 12 (Fla. 2d DCA

1973).

129

ped

A. Consideration Of All Relevant

Mitigating Circumstances Was Limited

At Trial And On eal, In Violation

Of The Fifth, $ ; Ejghth And

Fourteenth Amendments.

The Eighth Amendment “calls for a greater degree of relia~

bility” in the determination of whether death is an appropriate

penalty than is required in other criminal proceedings. Lockett Vv.

Ohio, 438 U.S. 586, 98 S.Ct. 2954, 2964 (1978). Accord Gardner Vv.

Florida, 430 U.S. 349 (1977); Woodson _v. North Carolina, 428 U.S. 280,

305 (1976). It thus commands an "Endividualized decision” to impose

death, Lockett v. Ohio, supra at 2965, which contemplates « "character

analysis of the defendant to ascertain whether the ultimate penalty is

called for in his or her particular case. Elle wv. State, 346 So.2d

998, 1001 (Fla. 1977). The sentencing process must provide for full

consideration of the “character and record of the individual offender”,

and allow for full consideration of “whatever mitigating circumstances

may be relevant" to that person. Lockett v. Ohio, supra at 2963.

See also Roberts v. Louisiana, 431 U.S. 633, 637 (1977) ; Woodson v.

North Carolina, supra at 304.

In Songer v. State, 365 So.2d 696, 700 (Fla. 1978), the first post-

Lockett decision of the Supreme Court of Florida to address the Locket

Tssue, the Court held that the statutory roster of mitigating circiw=-

stances is not and never was exclusive. See 0. 6, infra. in 1979,

Section 921.141 was amended by the Legislature to provice for the ac=—

bility of “any matter the court deems relevant to the nature of the

crime and the character of the defendant”; the amended statute morecve

deletes the references to the mitigating factors “as enumerated”.

legislative history of the amendment, Ch. 79-353, Laws of Florida,

lishes that it was intended to bring Section 921.131 into Tine wich &

rule announced in Lockett V. Ohio, 438 U.S. 586 (1978). Songer is is

irreconcilable conflict with this legislative history and intent, whic

establishes that the legislature intended the pre-1979 statute to be

limited to the specific mitigating circumstances.

Thus, the sentencing stature under which defendant was

sentenced was unconstitutional under Lockett. However, in light of

Songer, which is binding on this Court, derendant will not advance

Farther argument in this regard before this Court. Defendant does no’

waive the unconstitutionality of the statute and procedure under whic!

he was sentenced, nor does defendant waive any contentions that capit.

punishment is per s® violative of the Eighth and Fourteenth Amendment

and that Section 921.141 is facially unconstitutional.

7 400

st

Tae

est

L* r

we

oe Lockett est jdehes that the Eighth / yndment requizement’

of individualized sentencing is satisfied only if all possible

mitigating circumstances may be brought before the sentencing

authority; thus, a sentencing scheme which "prevents the sentencer |

from giving independent mitigating weight to aspects of the defendant's |

character and record and to circumstances of the offense proffered in

mitigation” is unconstitutional. 98 $.Ct. at 2965. While Section

921.141(6) is limited to specific mitigating circumstances, Songer v.

State, 365 So.2d 696, 700 (Fla. 1978) establishes that this list is

not exclusive and that "ell relevant circumstances may be considered

in mitigation." Were this not so, of course, the statute would fall |

under Lockett.

While the mitigating evidence under the Florida scheme may

not be limited to the factors set forth in the statute, defendant in

this case was deprived of an opportunity to present and have consid-

ered all relevant mitigating circumstances. This renders the death

penalty unconstitutional as applied to defendant, and the death

sentence imposed upon him wilawful.

Not once, but several times during the course of the

advisory sentence hearing, the jury was advised that the mitigating

circumstances which it could consider were limited. At the outset of

the hearing, the court instructed the jury:

the hearing, you will receive

evidence and testimony concerning aggra-

vating or mitigating circumstances. fa. 982).

During the closing argument of the prosecutor, it was again stressec

that "certain criteria have been devised" to guide the jury (R. 1058),

and the prosecutor prefaced a reading of the statutory mitigating

circumstances by telling the jury that it was "going to be instructec

as to certain mitigating circumstances that you should look for .

(R. 1061). The prosecutor then read the statutory roster (R. 1061-64)

Furthermore, the record establishes that all of the parties

those specified in Section 921.141(6), Florida Statutes (1977). At

the close of the advisory sentence proceeding, counsel for defendant

requested the court to order a presentence investigation; in stating

-8- a 431 c

: ~~ : 2

. ‘ ' “ ' é ' i

its belief that defend.t was not entitled to a tesentence

investigation, the court noted:

But there is very little, pn of the

ordinary presentence report that d be

relevant to what the jury and the Court are

supposed to consider this matter concerning

=" 582° and aggravating circumstances.

At a subsequent hearing regarding the claim of defendant

that a presentence report was required, the prosecutor voiced the same

response:

Mr. Goldstein: ey just briefly, L

feel that a presentence investigation, if it

were going to touch upon the criteria listed

in the statute, might be of some relevance.

However, it does not.

The Court, I believe, is bound by the

criteria outlined in the statute as to the

aggravating and mitigating circumstances, and

that has eady been brought out before the

Court and the jury, and # presentence investi-

gation would not cover those items again, and

since those are the only items which are to be

considered in the passage of sentence, that is

my feeling for believeing (sic) that the pre-

sentence estigation would not serve any

purpose, because I don't believe the Court can

go outside of those criteria. (R. 1090).

Counsel for defendant never challenged this position -- indeed, he

seemed to affirmatively accept it -- and the court expressly accepted

it in denying the motion for a presentence investigation (R. 1090-92) .°

6

There was no express and absolute principle of Florida law at the

time of this trial which governed the admissibility of non-statutory

mitigating circumstances. However, the statute itself, listing a

specific roster of mitigating circumstances, certainly indicated a li=it

tion to those circumstances. And the Supreme Court, in State v.' Dixon,

283 So.2d 1, 8-9 (Fla. 1973), also used limitative language in anayZzing

potential mitigating circumstances:

The most important safeguard presented in

Fla.Stat. §921.141, F.S.A., is the propoumcing

of aggravating and mitigating circumstances

which must be determinative of the sentence

imposed.

"te « «

When one or more of the aggravating cir-

cumstances is found, death is presumed to de the

proper sentence unless it or they are overridden

by one or more of the mitigating circumstances

provided in Fla.Stat. g921.141(7), F.S.A. .

See also Alford v. State, 307 So.2d 433, 444 (Fla. 1975).

The Court arguably so held in Cooper _v. State, 336 So.2d 1233 (Fla.

1976). However, Songer v. State, supra teaches that Cooper did not so

hold, and that the mitigating circumstances were never limited to those

specified in the statute. 3 § So.2d at 700. Accordingly, the blind

acquiescence of counsel for defendant in a clearly erroneous interpreta:

tion of the law by the court and the prosecutor -- Co the undeniable

detriment of his client -- constitutes ineffective assistance of counse

It is fundamental that "the delivery of effective assistance require:

the attorney involged to make a reasonable investigation into the.facts

132 a

ae

i i

| ' Moreover, ev ar dexendanr' han bee. jar iter oe be’,

presented, see n. 6, supts, relevant non-statutory mitigating evidence,

the sentencing proceeding in this case would remain constitutionally

infirm due to the absence of proper instructions to the jury. As

Lockett clearly establishes, merely providing the sentencing authority

with relevant information is not sufficient if it cannot be approprt-

ately considered in mitigation of the penalty. 98 S.Ct. at 2959,

2965-67. "(T]he provision of relevant information under fair procedural

rules is not alone sufficient to guarantee that the information will be

properly used in the imposition of punishment by a sentencing jury;

rather, the jury mst be given proper instructions to guide it in

utilizing this information. Gregg_v. Georgia, 428 U.S. 153, 192-95

(1976). Lockett mandates that "the judge clearly instruct the jury

about mitigating circumstances and the option to recommend against

death." Chenault v. Stynchcombe, 581 F.2d 444, 448 (Sth Cir. 1978).

The absence of such instructions -- and the presence of instructions

that the mitigating circumstances were limited -- renders the death-

sentencing procedure in this case violative of the Eighth Amendment.

The same limitations pervade the sentencing order. In

6 cont.

of the case and to acquaint himself with the law pertinent to the

facts." Nelson v. State, 274 So.2d 256, 258 (Fla. 4th DCA 1973).

Counsel must be familiar with controlling legal principles and be a

"reasonably wy legal historian". Cooks v. United States, 461

F.2d 530, 532 (5th Cir. 1972). The failure of counsel to do so renders

his representation ineffective.

Moreover, counsel himself admitted, at the hearing on the request

fora investigation that insufficient preparation had beer

done bor the death phase of the trial:

We have not pursued his background, or an

investigation into his background to such an

extent that we can say with any degree of

certainty that a PSI would not benefit him or

benefit the Court, either way, in some small

way, no matter how small that degree may

be... - - (R. 1091).

Thus, even if counsel had persuaded the court to allow the pre-

sentation of non-statutory mitigating circumstances and to instruct the

jury to consider such evidence, the insufficient investigation into

the character and background of defendant would have prohibited the

full expostulation contemplated under a constitutiona death penalty

structure. Accordingly, the limitative rulings of the trial court

and the ineffective assistance rendered defendant by his counsel

deprived him of both the means and the opportunity to present the jury

and the court with evidence of "whatever mitigating circumstances

may (have been) relevant" -- an absolute goo oa to a constitu-

tionally tolerable imposition of the death penalty. Lockett v. Ohio,

supra at 2963.

-10- * 133 = o€

Ne

rejecting the applica itty of two statutory m {gating cfrombtants,

Section 921.141(6)(b) and (£), the court noted that some level of

mitigating evidence had been introduced, but totally discounted it:

his

conduct or to conform his conduct to the

r ts of law, the Court finds that

such capacity was not substantially impaired.

Thus, the court recognized that defendant was in fact impaired, but

gave this fact no weight because it failed to satisfy the statutory

mitigating circumstances.

And the Supreme Court, in upholding the death sentence,

similarly limited its consideration of possible mitigating circum-

stances:

pore ges to appellant's argument that

the trial judge erred in failing to find the

mictiga circumstances delineated above,

we resp that the jury and the judge could

have resolved the evidence in favor of

appellant's position, but neither was

compelled to do so. . . . Appellant simply

arragress with the force and effect given to

the testimony of a psychologist and a psychi-

atrist at the sentencing hearing. .... i=

is apparent, then, that the trial judge did

not ignore or fail to consider the psychologi-

cal evidence bearing on mitigation. Obviously,

he and the jury wére not persuaded that it pro-

vided a sound basis for establishment of the

statutory ea circumstances. Hargrave

vw. State, 366 So.2d 1, 6 (Fla. 1978) (Orie

emphasis) .

This limited approach by the Supreme Court is of particular signifi-

cance in light of its rejection of the "doubling up” argument advanced

on behalf of defendant, challenging the application by the court of

two aggravating circumstances ~~ felony-murder and a homicide committec

for pecuniary gain -- based upon the same facts. The Supreme Court,

while recognizing the error, held it harmless because "(a]bsent

circumstance of pecuniary gain, there were ample other statutory

aggravating circumstances to place on the scale to weigh against the

valid mitigating circumstances." Id. at 5 (emphasis supplied)

Thus, at every level of the trifurcated Florida death penalt

structure -- the jury, the trial court, and the Supreme Court --

defendant was denied the means and opportunity to present, and a full

consideration of, all relevant mitigating circumstances. That allowin

oy

ne FF

“ll- 4434 ;

ores ‘3 ~

defendant evch an opp ‘tunity would have resul’ # in the presdntatabe

of powerful mitigating evidence cannot be questioned. See Proffer

included in appendix.’ ‘Lockett thus requires the conclusion that

the entire sentencing process in this case violated the Eighth end

Fourteenth Amendments.

B. The Admission Into Evidence Of The

Testimony Of A Court-Appointed Psycholo-

= Who Examined Defendant Prior To

lL To Determine His Competency To

Stand Trial, At The Sentencing Hearing

- Violated The Fifth, Sixth And Fourteenth

Amendments.

Prior to trial, the court appointed Dr. Robert W. Sylvester,

\

a clinical psychologist, to examine defendant. The order directs Dr.

Sylvester (and two other experts appointed by the court) to report

regarding: the "mental condition of the defendant"; the capacity of

the defendant to stand trial; the sanity of the defendant at the time

of the offense; whether defendant should be afforded psychiatric

treatment. Dr. Sylvester examined defendant on February 12, 1975.

Defendant was not advised, prior to the examination, that the evidence

gleaned therefrom could be introduced at the sentencing phase of the

trial and that he had a right to remain silent or could terminate the

interview if he so wished.

Dr. Sylvester was presented by the State at the sentencing

hearing. He testified, in pertinent part, that: defendant did not

suffer from a severe mental or emotional disorder; that defendant was

a sociopath with a disregard for the law and for social conventions;

and that defendant had been the dominant figure in the offense, rather

than the co-defendant Karge (R. 987-98, 1009-10) .°

The third section of the appendixis a proffer of the mitigating evi-

dence which could have been presented at trial. It is a copy of a

packet submitted to the Florida Cabinet prior to the clemency hearing

on September 12, 1980. Included in the packet are three social and

psychological evaluations of defendant and his family and additional

relevant data. Due to the extreme haste with which a warrant was issu

after the clemency hearing, counsel have been unable to provide a mcre

extensive proffer; however, the materials in the proffer provide an

excellent example of the type of evidence which could have been presen

had defendant been afforded the full sentencing hearing contemplated

under Lockett.

8

The prejudicial effect of this testimony is patent. It was relied

upon by this court (and subsequently by the Supreme Court) to reject

the applicability of relevant statutory at pigatins circumstances.

Stn . wo

Ee OF

.- ~-

the eduised . of this testimony viol pd the Fifth and |

sixth Amendments. In Saith vy. Ketelle, 602 ¥.24 694, 708-09 (Sth Cir.

1979), the Court of Appeals for the Fifth Circuit ruled that en

accused in a capital case may not be compelled to be examined by an

expert whose testimony will be used by the State in seeking the death

penalty, and that the accused must be advised, prior to such an examina

tion, that he/shs has the right to remain silent and the right to

terminate the examination. See also United States v. Leonard, 609

F.2d 1163 (Sth Cir. 1980). The absence of such warnings in this case

renders the testimony of Dr. Sylvester inadmissible.

C. The Reliance By The Prosecutsr Upon

Noe Sataee githch and Yourtecseh

Amendments.

Section 921.141(5) specifies certain specific aggravating

circumstances which may be considered in the death-sentencing process;

non-statutory aggravating circumstances may not be considered in

determining whether death is an appropriate sentence. E.g- Mikenas v-

State, 367 So.2d 606, 610 (Ela. 1978); Riley v. State, 366 So.2d 19, 21

(Fla. 1978); Elledge v. State. 346 So.2d 998, 1002 (Fla. 1977);

Huckaby v. State, 343 So.2d 29, 33 (Fla. 1977); Purdy v. State, 343

So.2ad 4, 6 (Fla. 1977); Provence v- State, 337 So.2d 783, 786 (Fla.

1976). "The aggravating circumstances specified in the statute are

exclusive, and no others may be used for that purpose." Miller v.

State, 373 So.2d 882, 885 (Fla. 1979) (citation omitted).

The prosecutor in this case violated this most basic

principle, one of the key protections against the arbitrary and

capricious application of death as punishment. Elledge v. State,

9

supra at 1002-03. In his opening argument , the prosecutor urgec

the jury to recommend a death sentence based in part upon the alleged

propensity of defendant to commit murder:

: [B]ecause of the fact that Lenson

Hargrave has boasted so frequently about

his having killed somebody and about his

)

Since defendant presented evidence at the sentencing hearing, the

court allowed the State opening and closing argumenss. Contrast

Fla.R.Crim.P. 3.780(c).

-3- = 4436

es to re

this Count of death. (R. 1065).

The evidence upon which this argument was based had been introduced --

ostensibly -- to refute possible mitigating circumstances and not to

prove an aggravating circumstance (a. 1029-31).

In his closing argument, the prosecutor reprised this theme,

urging the jury to recommend death for the protection of the commmity: |

. . . «IZ submit to you that there is only

one way that you can tell this Court and

the le of this commmity that there

is no place in this society for people who

feel like Lenson Hargrave, ny o feel

that killing another human being senselessly

and needlessly and westowest have any place

in this society. (R. 1073-74).

The propensity of an individual to commit crimes is simply

not an authorized aggravating circumstance and cannot be considered in

the death-determination process. Miller v. State, supra at 885;

Huckaby v. State, 343 So.2d 29, 33 (Fla. 1977). Remarks calculated to

influence the jury by inciting fears for the safety of their commmity

are improper and prejudicial in any criminal trial. See e.g. Sims v.

State, 371 So.2d 211 (Fla. 3d DCA 1979); Reed v. State, 333 So.2d 524

(Fla. lst DCA 1976); Chavez v. State, 215 So.2d 750 (Fla. 2d DCA 1968).

The effect of such remarks is yet more egregious in a capital case,

see Grant v. State, 194 So.2d 612, 614-15 (Fla. 1967), particularly

under a statute where limited aggravating circumstances are one of the

key factors in the constitutionality of the penalty. State v. Dixon,

supra.

D. The Failure Of The Trial Court To

Properly Instruct The Jury On The Burden

Of Proof At The Sentencing Hearing Vio-

lates The Fifth, Eighth And Fourteenth

Amendments.

During discussions at the sentencing hearing regarding the

burden of proof, the trial court commented, "I don't know if anyone

has any burden of proof." (R. 1027). It further stated, "There is

no burden of proof on anybody here. It's up to the jury on the whole

thing.” (R. 1027). At the close of the hearing, the court instructed

the jury chat aggravating circumstances must be proved beyond a

_ ihe 437 60

‘ i ‘ ; é ; : 2 va ,

reasonable doubt. The -surt further instructed he gery

Your verdict must be based upon your

finding of whether sufficient aggravating

circumstances exist and whether sufficient

mitigating circumstances exist which out-

weigh any eet circumstances found

. 1074).

KX ~~

The court did not otherwise instruct the jury on the burden of proof.

The ultimate issue in a sentencing determination under Sec-

tion 921.141 is not whether an aggravating circumstance or circum-

stances exist, and it is not whether, given such circumstance or cir-

cumstances, the mitigating considerations can override the assumption

that death is appropriate. Rather, " [n]o defendant can be sentenced

to capital punishment unless the aggravating circumstances outweigh

the mitigating factors." Alvord v. State, 322 So.2d 533, 540 (Fla.

1975).

For death is not necessarily the proper punishment merely

because an aggravating circumstance exists. Application of the

death penalty is limited "to only the most aggravated and ummicigated

of most serious crimes." State v. Dixon, supra at 7. Thus, mitigating

circumstances are not mere affirmative defenses to the imposition of

the death penalty -- the overriding of such circumstances

is an absolute prerequisite of a valid death sentence. See Lockett v.

Ohio, supra; Gregg Vv. Georgia, 428 U.S. 153, 197 (1976); Alvord v.

State, supra. Due process of law therefore requires that the

aggravating circumstances must outweigh the mitigating circumstances

beyond a reasonable doubt before death may be inflicted. Patterson v-

New York, 432 U.S. 197, 215 (1977); Mullaney v. Wilbur, 421 U.S. 684

(1975) . 10

Such due process protections are of equal, if not greater

In Mullaney, the Supreme Court considered a homicide statute under

which, once the State established that the killing was intentional, the

element of "malice aforethought” was presumed and the accused was guilt

of murder, “unless the defendant proves by a fair preponderance of the

evidence that it was committed in the heat of passion on sudden provoca

tion, in which case it is punished as manslaughter”. 421 U.S. 688, 691

92. The Court held "the Due Process Clause requires the prosecution to

prove beyond a reasonable doubt the absence of the heat of passion on

sudden provocation when the issue is properly presented in a homicide

case." Id. at 704. Mullaney thus forbids "shifting of the burden of

persuasion with respect to a fact’ which must be proved to support @

conviction. Patterson v. New York, supra at 216.

158 - =

$<

et a Ne

’

importance in the capital sentencing process. See Presnell v.

Georgia, 439 U.S. 14, 99 S.Ct. 235 (1978); Gardner v. Florids,

430 U.S. 349 (1977). Mullaney is of particular application

to the sentencing decision in « capital case inasmich as the

question of whether or not the killing "was committed in heat

of passion” did not “come into play until the jury already has

determined that the defendant is guilty end may be punished at

least for manslaughter." 421 U.S. at 697. The State argued

in Mullaney that the question was therefore only relevant to

punishment -- not to guilt -- and that the due process require-

ment of proof beyond a reasonable doubt was therefore inapplica-

ble. Id. at 697-98.

(continued on next page)

: 19i- 139

2 Ks ~~’

‘The resoundir~ rejectacn ws ‘Chee aryl -7 t Sc, me |

Court is of critical significance in this case:

The safe of due process are not ren-

dered oe ante because a determination

may already have been reached that would stigna-

significant t of personal

The fact remains that the consequences resulting

from « ct gurder, as compared with «

verdict of mans , Hffer significantly.

Indeed, when a in terms of the poten

difference in restrictions of personal liberty

attendant to each conviction, the distinction

established by Maine between murder and man-

slaughter may be of greater importance than

the ference between ‘ or innocence for

many lesser crimes. 421 U.S. 698.

Certainly, the qualitative difference between life or death in «

capital case is “of greater importance than the difference between

guilt or innocence for many lesser crimes.“

Mullaney thus mandates the conclusion that the State must,

in a capital sentencing hearing, establish beyond a reasonable doubt

that the aggravating circumstances outweigh the mitigating circum-

stances. Florida has declared that it will not execute persons

except for "the most aggravated and unmitigated of most serious

crimes." State v. Dixon, supra at 7. It camnot place the burden

upon the defendant to prove that he or she should not be killed --

Mullaney places the burden squasely upon the State to prove that the

defendant should be executed.

Section 921.141 does not affirmatively place a burden of

proof upon defendant. The holding of the Court in Alvord v. State,

supra clearly establishes that the burden is not to be placed upon

the defendant. However, the instructions to the jury in this case

could and probably would be interpreted as doing so; this establishes

the due process violation. Sandstrom v. Montana, US. , 99

$.Cr. 2450 (1979); Hammontree v. Phelps, 605 F.2d 1371 (Sth cir. 1979)>

In Sandstrom, the Supreme Court considered a premeditated murder

prosecution in which the defense proffered was a lack of specific inten

Id. at 2453. The jury in that case was instructed that an individua: i

presumed to intend the ordinary consequences of his or her acts; this

instruction was challenged on the ground that it ermissibly shifted

the burden of proof to the defendant. Id. at 2453-54.

The Supreme Court held that “the Jury may have interpreted the

instruction as a direction to find intent upon the proof of the defend-

ant's voluntary actions (and their ‘ordinary’ consequences), unless the

defendant proved the contrary by some quantum of proof”. 99 S.Ct. at

i. ee

. =

z. The eure menmety tggitet ) ,

Statutory Aggravating Circumstances

In Sentencing Defendant To Death.

1. felony murder

Defendant was charged with premeditated first-degree murder .

However, at trial, the prosecutor sought a conviction also upon the

basis of felony-murder. This is proper under Florida law. Enight v.

State, 338 So.2d 201, 204 (Fla. 1976). Since a specific jury verdict

was not returned, it cannot be known with any certainty upon which

theory the jury convicted defendant. .

The court utilized felony murder as an aggravating circum-

stance under Section 921.141(5)(d). Its application, in a case where '

the prosecution sought a conviction in part upon @ felony-murder

theory, violates the Eighth Amendment:

_ . Neither do we think the underlying

felony should be submitted to the jury as

an aggravating circumstance in the sen-

ten hase when it was the basis for,

and an element of, a capital felony convic-

tion

We are of the opinion that, nothing

else appearing, the possibility that a

defendant convicted of a felony-murder will

be sentenced to death is disproportionately

higher than the possibility that a defendant

convicted of a premeditated killing will be

sentenced to death due to the "automatic"

rlying felony. To obviate this flaw

in the statute, we hold that when a defend-

2. especially heinous, atrocious or cruel

The court found the homicide in this case to be within the

scope of Section 921.141(h) on the following basis:

heinous , atrocious or cruel, in at, after

initially shooting the victim and while the

[T]he capital felony was a ag |

victim lay helplessly bleeding on the floor,

ii cont.

2456 (original emphasis). The Court ruled that this would have

“effectively shift([ed] the burden of persuasion" to the accused, in

wiolation of Mullaney. Id. at 2656, 2459. The instruction in

Sandstrom was accordingly held constitutionally deficient. And the sa

conclusion would be required even if the statute involved in such an

instruction did not facially shift the burden of proof -- the critical

question is what a jury cou 4d have concluded from the instructions of

trial court. Hammontree Vv. Phelps, rn at 1379-80.

a nf

~~ ~~

the de” ndant deliberatesy leane* over

SS the victim a the

This finding cannot support the application of Section 921.141(h).

That subsection establishes a potential aggravating circum

stance that the homicide was "especially heinous, atrocious, or cruel.”

In State v. Dixon, 283 So.2d 1, 9 (Fla. 1973), the Supreme Court of

Florida interpreted this subsection to include crimes which are

“outrageously wicked and vile”. As the Supreme Court of the United

States has recently observed in passing upon the validity of a similar

provision in the Georgia death penalty law:

‘ . There is nothing in these few words,

standing alone, that implies any inherent

restraint on the arbitrary and capricious

infliction of the death sentence. A person

of ordinary sensibility could fairly charac-

terize almost every murder as "outrageously

or wantonly vile, horrible and inhuman."

Goderey v. Hes U.s. , 100 §.Ce.

Thus, under Godfrey, the definitional language in Dixon is

no limitation upon the application of subsection (h). Consequently,

in light of that decision, the only manner in which subsection (h) can

be constitutionally applied is if its application is limited to the

"additional acts" of which the Supreme Court spoke in Dixon:

. . . What is intended to be included are

those capital crimes where the actual

commission of the capital felony was accom-

panied by such additional acts as to set

the crime apart from the norm of capital

felonies -- The conscienceless or pitiless

crime which is wmecessarily torturous to the

victim. 283 So.2d at 9.

See also Purdy v. State, 343 So.2d 4, 6 (Fla. 1977).

Under this test, the method by which the homicide is perpe-

trated is key -- the "additional acts" must be the focus. Lewis v.

State, 377 So.2d 640, 646 (Fla. 1979); Tedder v. State, 322 So.2d 9Cé,

910 (Fla. 1975). The Godfrey limitation upon subsection (h) renders

its application to defendant unconstitutional.

The Supreme Court of Florida has clearly held that

“(d)irecting a pistol shot straight to the head of the victim” is noc

an "especially heinous, atrocious, or cruel" homicide. Kampff v. State

371 So.2d 1007, 1010 (Fla. 1979). Accord Williams v. State, So.2¢

| Case No. 59,666 (Fla. 1980), opinion filed June 12, 1980; Downs

te

_ 65

" at

i | ; ,

v. State, So.2d _, Case Bo. 58,524, Gla N980), opinion filed

May 22, 1980; Riley _v- State, 366 So.2d 19, 21 (Fla. 1978). The only

"edditional act" which could possibly remove this case from that rule

is that the victim was "helpless" at the time of the homicide, having

been shot once by defendant.

That is insufficient to establish this circumstance, under

well-established Florida law. In Menendez v. State, 368 So.2d 1278,

1281-82. (Fla. 1979), the victim was killed during a robbery, having

been shot twice by the accused; the evidence indicated that "his

arms may have been in a’ submissive position at the time he was shot”.

The Supreme Court held that "there is nothing to set his execution ;

murder ‘apart from the norm of capital felonies.'" Id. at 1282. In

Riley v. State, supra. three persons in a business were victims of «

robbery, and were forced by the accused and an accomplice to lie on

the floor; the victims were "bound, gagged, and then shot in the

head.” 366 So.2d at 20. Two of the victims died, while one (the son

of one of the victims), survived. Id. at 21. The Supreme Court held

that "(t]here was nothing atrocious (for death penalty purposes) done

to the victim, however, who died instantaneously from a gunshot in the

head." Id.

The victims in Riley were certainly “helpless” at the time

of the homicides, and the victim in Menendez may also have been so.

The fact that the victim in this case was shot more than once is of no

significance for these purposes; so too was the victim in Menendez.

See also Downs v-. State, supra. Indeed, in Lewis v. State, Supra, the

victim was shot once in the chest by defendant and, as he attempted t:

flee, defendant "shot him several more times in the back." 377 So.2d

at 646. The Supreme Court held that "(t]he killing in the case at ba:

simply does not fall" within the category of subsection (h). Id.

Thus, following the dictates of Godfrey and focusing upon

the “additional acts" rather than the "standardless and unchanneled"’

definition of subsection (h) in Dixon, it is indisputable that this

aggravating circumstance was improperly applied by the court in this

case. And this error also infects the application of this subsection

by the jury; the court did not define subsection (h) in terms of the

: ne Oe _ 66

“.. ; _ : > a

.y 2

requirement of "additi~ a: acts in. ats wstrtic__ ito “ef

(indeed, it defined none of the other aggravating or mitigating

circumstances). This invalidates the recommendation of a death

sentence. Godfrey v. Georgia, supre at 1765; Gregg v. Georgia,

supra. 2

F. Disparate Appellate Review By The

Supreme Court of Florida In This Case

Renders The Death Sentence Violative

Of The Eighth And Fourteenth Amendments.

A key safeguard against arbitrary death sentences in

Florida is the tripartite appellate review performed by the state

Supreme Court. Proffitt v. Florida, 428 U.S. 242, 253 (1976). By

virtue of its statewide jurisdiction and its commitment to proportion-

ality, the Supreme Court of Florida can assure “consistency, fairness

and rationality in the evenhanded operation of the State law."

Proffitt v. Florida, 428 U.S. at 259-60; State v. Dixon, 283 So.2d 1,

10 (Fla. 1973). Indeed, the Supreme Court of Florida has noted most

recently that the constitutionality of Florida's capital sentencing

procedure is contingent upon the Court's role of reviewing each case

to ensure uniformity. Witt v. State, So.2d__ (Fla. 1980)

(Case No. 58,329, Opinion filed 7/24/80).

As in Godérer. the improper application of this circumstance "was

in no way cured by the affirmance"’ of the Supreme Court of Florida. 100

$.Ct. at 1765. If enythene. the error was rendered more egregious. As

noted above, the sole basis for the finding by the trial court that sub-

section (h) was applicable was the helplessness of the victim. On appea

the Supreme Court of Florida added two further bases: defendant "in a

- calculated fashion ‘executed’ the victim to avoid later identification";

and the alleged statements of defendant that "he had killed someone befc

and it would not bother him to kill again."

Neither of these bases were relied upon by the trial court to estab-

lish subsection (h). The first was relied upon by the trial court, Sut

to establish the aggravating circumstance of avoiding a lawful arres=

under subsection (e). The second was purportedly introduced to rebut

mitigating evidence, but was relied upon by the prosecutor as & non-sta!

tory aggravating circumstance. Evidence of the propensity of a capital

defendant to commit violent acts 4s irrelevant to subsection (h),

Elledge v. State, supra, and the expressed state of mind of an accused

Tong after the crime is also irrelevant under Florida law. See Magill -

State, 383 So.2d 901, 904 (Fla. 1980).

The Supreme Court thus improperly relied upon these two additional

factors to bolster the improper application of subscription (h) by the

trial court. More fundamentally, the affirmance of the death sentence

upon a basis not relied upon by the trial court is a due process

deprivation. See Presnell v. Georgia, 439 U.S. 14 (1978).

-20-

\.

~

i

In performi._ its appellate washes, ' Supreme Court has

held that aggravating factors must be atrictly limited and applied;

the erroneous consideration of aggravating factors will require

resentencing where the effect of the error upom the weighing process

cannot be assuredly ascertained. Elledge v. State, 346 So.2d 998

(Fla. 1977). Thus, as @ general rule, the Supreme Court has reversed

death sentences due to the improper consideration of aggravating

factors so long as at least one mitigating circumstance has been

found. See e.g., Mikenas v. State, 367 So.2d 606 (Fla. 1978) .5

Since speculation in conducting this review process is constitutionally

impermissible, see Godfrey v. Georgia, U.S. , 100 $.Ce. 1759 ae

(1980), the danger that the aggravating error affected the overall

sentencing determination can be averted only where no factor in

mitigation was found. See, e-£-, Jackson v. State, 359 So.2d 1190

(1978); Gibson v. State, 351 So.2d 948 (1977).

Otherwise, the Court camnot reweigh the aggravating and

mitigating factors, as it has explained:

In capital cases, it is this court's

responsibility to insure that the trial judge

remains faithful to the dictates of Section

921.141, Florida Statutes in the sentencing

process. It is not the fumction of this

court to cull through what has been listed

as sree and miti —— circumstances

in trial court's order, determine which

are proper for consideration and which are

not, and then impose the proper sentence. In

accordance with the statute, the culling

process must be done by the trial court.

Mikenas v. State, supra at 610.

The dual aggravating consideration of a single aspect of

a capital offense is unlawful under Florida law. Provence v-. State,

337 So.2d 783 (Fla. 1976). Thus, where a defendant is doubly

penalized for a robbery-murder (aggravating circumstance (d)) commictec

for pecuniary gain (aggravating circumstance (f)), a resentencing will

be required unless the weighing process could not have been affected

by the error.

Indeed, that Court has reversed a death sentence where the

sentencing order which reflected the erroneous aggravating factor

was merely a as to whether any eo or circumstances

were found. Elledge v. State, 346 So.2d 998 (Fla. 1977)

-21-.. 1145

6S

ee ee enn eee

| ie The ase -2 b pr atr on enqmaly in this death penalty

review scheme: defenuant was doubly penalized bre robbery-surder

committed for pecuniary gain despite the expressly found statutory

mitigating circumstances of bis youth (18 years) and no significant

criminal history.t4 Though the Supreme Court acknowledged that a pro-

hibited aggravating factor had been injected into the weighing process,

it unilaterally reweighed the remaining aggravating factors and the

mitigating factors previously found, and upheld the death sentence. 15

This total departure from precedent is strikingly at odds with

the Court's most recent reaffirmation ‘of that precedent. Gafford v-

State, __So.2d___ (Fla. 1980), involved a premeditated killing during

the course of a planned robbery and effected by strangulation and

repeated stabbings. The trial judge found that this calculated

homicide by Gafford was especially heinous, atrocious and cruel, had

been committed during the course of a robbery, and with a pecuniary

motive. The trial judge further found two statutory mitigating circum-

stances, Gafford's age of nineteen and lack of significant criminal

history.

The Supreme Court of Florida held that Gafford was entitled

to a new sentencing hearing due to the lower court's erroneous conside:

ation of both robbery and pecuniary gain.16 In applying its prior

1% according to the decision of the Supreme Court of Florida, the

mitigat evidence further lent some support to the statutory circun-

stances of domination by the co-defendant and mental impairment. See

Hargrave v. State, 366 So.2d at 5-6. Indeed, one member of the Court

Sund evidence ot these two circumstances 80 compelling as to conclu-

sively tip the scales in favor of life. Hargrave v. State, 366 So.2d

(Boyd, J. dissenting). This Court reco ze @ evicence in support

of these mitigating factors but, without the benefit of Lockett Vv. Oh:

438 U.S. 586 (1978), erroneously failed to consider it. (see Point A

supra) .

In contrast to this feweighing where an aggravating circumstance

improperly considered by trial jury and judge was the Court's refusal

reweigh “statutory” mitigating circumstances which the jury and court

erroneously failed to weigh. (See Point A, supra). Ironically, the

Court explained its refusal to reweigh the mitigating factors on the

ground that this was not a case where the jury and court had not con-

sidered “matters it should not have considered." Hargrave V- State,

supra at 5. Yet it was precisely guch a case with regard tO the

consideration of the aggravating factors.

16 The court noted that remand would afford the trial court the

portunity to consider the sentences meted out to co-defendants att

Gafford had been sentenced. Notably, this Court did not have the

opportunity to consider the twenty-year sentence that had been impos:

upon the co-defendant Karge subsequent to defendant's death sentence

-22- 116 : 69

precedent, the Court led: ;

We find, however, that in the instant

case the doubling of the aggravating

factors coupled re the fact Seat the

trial court found two mitigating circur-

stances requires us to remand under the

doctrine we expressed in Provence and

Gibson. Gafford v. State, supra (slip

Opinion) .

In the case at bar, the factors in aggravation are virtually

identical to those found in Gafford, save for the fact that defendant's

offense was far less egregious. See Point D, supra. The same exact

two mitigating factors in Gafford were specifically found by the

courts in this case. The inexplicable disparity in result violates

the Eighth Amendment as well as denying defendant due process and equal

protection under the state es federal constitutions. See Isaac v-.

Engle, F.2d _ Case No. 78-3488 ( 6th Cir. 1980), opinion filed

February 8, 1980; Bishop v. Mazurkiewicz, 484 F.Supp. 871 (W.D.Pa. 1980

The Court's disparate treatment in capital cases renders the

Florida death penalty scheme unconstitutional as applied. Reliable

death sentences are impossible where the Supreme Court speculates as tc

the mental processes of trial jury and judge.

G. The Death Penalty Is A Dispro-

portionate Punishment In This Case.

In determining the propriety of death as punishment, "'There

(must) be taken into account the circumstances of the offense together

with the character and propensities of the offender.'" Gregg v. Georgi:

428 U.S. 153, 190 (1976) (citation omitted). The inquiry is thus

focused on "the particularized circumstances of the individual offense

and the individual offender". Jurek v. Texas, 428 U.S. 262, 274 (1976

The punishment of death fits neither the offense in this case nor the

defendant.

A punishment which is “excessive” in relation to the crime

is barred by the Eighth Amendment. Gregg Vv. Georgie, supra at 171-73.

An “excessive” punishment is one which "is grossly out of proportion

to the severity of the crime." Coker v. Georgia, 433 U.S. 584, 592

(1977). Death is an “excessive punishment" for the offense in this

case.

The death penalty is "an extreme sanction, suitable to the

°23- 4:17 70

+ Fi

‘3 w%

* i

most extreme of crime.” Gregg v. Georgia, su bat 187, tn Florida,

death sentences have been upheld only for such crimes. See, ¢.g.

Foster v. State, 369 So.2d 928, 931 (Fla. 1979) (defendant, after

engineering robbery of victim, cut his throat, dragged him into

undergrowth, and returned to cut his spine); Smith v. State, 365 So.2d

704, 706-07 (Fla. 1978) (defendant forced victim into trunk of car at

knifepoint, drove to secluded location, opened trunk and beat victim

with a tire iron, saturated car with gasoline, and burned victim to

death); Hoy v. State, 353 So.2d 826, 833 (Fla..1977) (Defendant and

accomplice raped young girl in presence of her fiance, killed him in

her presence, shot her twice, raped her a second time, and then killed’

her); Adams v. State, 341 So.2d 765, 769 (Fla. 1976) (victim mrdered

by beating him "past the point of submission and until his body was

grossly mangled"); Gardner v- State, 313 So.2d 675, 676 (Fla. 1975)

(victim suffered approximately one hundred bruises to body, sexual

mutilation, and massive hemorrhages of the head).

This case is simply not within the classification of these

“most extreme of crimes". Taken in a light most favorable to the

State, two proper aggravating circumstances exist, but this alone does

noc warrant the imposition of death. See Alvord v. State, 322 So.2d

533, 540 (Fla. 1975). In Provence v. State, 337 So.2d 783, 784 (Fla.

1976), the defendant murdered the victim by stabbing him, and, as here,

the killing occurred during a robbery. Circumstantial evidence

indicated that the homicide had been previously planned by the defend-

ant. Id. at 784-85. In Provence, unlike this case, no mitigating

circumstances were found.

Nonetheless, the Supreme Court held that "the circumstances ¢

this case are less aggravated than those present in other cases where

this Court has reversed the trial court's imposition of the death

penalty", and ruled that "the circumstances of the instant case do not

call for the imposition of the death penalty." Id. at 787. The

same conclusion is required here. Unlike Provence. the homicide in thi:

case was perpetrated by gunshot -- and could not be within the defini-

tion of an "especially heinous" felony -- and was committed during a

robbery. If anything, the actual homicide in Provence was more

aggravated than that in this case.

118 71

‘

— :

Simply state. there is “nothing more ocking in tne

actual killing (in this case) than in a majority of murder cases", and

death is therefore a disproportionate penalty. Halliwell v. State,

323 So.2d 557, 561 (Fla. 1975). The imposition of death in this case

“would not be consistent with other sentences imposed in similar

circumstances", and cannot be upheld on the basis of the crime. Malloy

wv. State, 382 So.2d 1190, 1193 (Fla. 1979) (original emphasis). "There

is no principled way to distinguish this case, in which the death

penalty was imposed, from the many cases in which it was not", and the

sentence is therefore violative of the Eighth Amendment - Godfrey v.

Georgia, 100 S.Ct. 1765, 1767 (1980).

This conclusion is rendered of yet greater force when the

powerful mitigating circumstances in the attached proffer are considered.

Briefly, the evidence establishes that defendant was @ viciously and

tragically abused child, left dependent and victimized, perpetually

searching for a "safe" place and a caretaker. See reports of Dr. Doris

B. Stiles, Dr. Jeffrey J. Elenewski and Ms. Evalyn Milledge in Proffer

in attached appendix. The evaluations of defendant and his family

establish that his “caretaker”, during his adolescent years, was

_ Lawrence Karge (the co-defendant who instigated and planned the robbery

and who, some two weeks after the trial of defendant was permitted to

plead guilty to second-degree murder and was sentenced to 20 years).

Id. As Dr. Stiles concludes :

Lenson's needs for a nurturing caretaker,

someone to relieve his overwhelming tension,

anxiety, and fear, were met ~ Ay mg §

_ . , Denson (was) able to talk to Larry.

Under such circumstances, Lenson did any-

thing and everything he could to please

Larry, his new-found caretaker. Inasmuch

as Larry is not a "domineering" person,

Lenson's needs to please his perceived

caretaker placed Larry in a position of

strong control and dominance over Lenson.

Report of Dr. Stiles at 42-43.

Dr. Stiles places the homicide in the context of the life

history of defendant:

Lenson's commission of armed robbery,

and murder must be placed in the context

of his family system. It is noteworthy

that both of his parents have also committed

serious acts (rape, aggravated assault,

embezzlement) that could be considered

criminal, as have at least two of his siblings

(Child abuse, armed robbery). The consequence

“=i: 90 . Fe

; “ ‘e" gates .

i foe ;

; ‘ee ey

of th tysfunctionalmarttal sy on

the children was inevitable s there

was no appropriate therapeutic interven-

tion to the family system. ...

When Lenson met Larry, they were

friends, with Larry being « good listener

for Lenson, and Lenson boost Larry's

ego with his loyalty. ....-

Pome ip the armed robbery, requesting

son to carry it out. Lenson agreed,

especially when Larry 8 ested he re.

be "chicken." ANY LOSS OF Y

AS CARETAKER would have been psychologically

Intolerable to Lenson.....

Lenson — to robbery to please his

"caretaker" a familiar manner, stealing.

He had already learned, in his fami of

origin, that stealing is acceptable behavior

when it is done for someone you love. When

the attempted robbery was flawed by a jammed

cash register, Lenson experienced further

overwhe constriction of his options...

and pulled the trigger because, for kim, there

was no other choice. He shot again, to kill,

for the same reason: he believed he had no

other choice. His decision to kill was not

remeditated but rather based on a very

ted emotional/cognitive state, limited to

one alternative, in order to preserve @

relationship he believed he needed. Report of

Dr. Stiles at 44-45.

| i

Dr. Elenewski states:

_ There exists substantial evidence from

mumerous observers of the physical, sexual

and mental abuse to which Mr. Hargrave was

exposed. The portrait that emerges is one

of a crucible of rejection, abuse, and usery.

Mr. Hargrave apparently did emerge from this

crucible with sufficient mettle to function

as an independent adult. .. . My findings

strongly support and confirm the existence

‘of a family constellation replete with clas-

sical dynamics of physical, sexual and mental

abuse. Mr. Hargrave's present psychological

condition continues to show the deep emotional

scars as well as chronic long-term psychopatho-

logy. The final picture which emerges is one

of a dangerously disturbed, bizarre, and frankly,

pathetic human being. Given his family and

social context, it can be seen as inevitable

that Mr. Hargrave would become a tragic and

violent example of the human condition.

* * *

Taken as a whole, the results of the psycho-

logical testing place Mr. Hargrave in the diag-

nostic category of a severe Personality Disorder,

Mixed Type. Alternative diagnoses are Personality

Disorder, Inadequate Type and Personality Disorder,

Dependent Type, both with Anti-social features.

Testing indicates that Mr. Hargrave's behavioral

pattern is characterized by pervasive ineffectual

responses to emotional, social, intellectual and

physical demands. . . .His personality structure

indicates that he is the sort of individual who

passively allows others tc assume responsibility

for major areas of his life because of a lack of

self-confidence and an inability to function

independently. Mr. Hargrave subordinates his needs

2-. 1590 73

ee:

.

eo tnor os Otasrs un vue be Je eae i

in ords_'to avoid eny possibilit bf Eevee

to be self-reliant. t his life Mr.

Hargrave has always iden ed an external

other who would fulfill the role of some sort

of protector or (overseer). In his earl

development; it was his Mother. Later

function was taken over by bis friend and

companion, Larry Karge. .. .

® * *

. . . The information available to me

nae that Mr. Hargrave was involved in

an intense pathological and symbiotic

relationship with Mr. Karge. It is, there-

fore, psychologically consistent that he would

perceive unacceptable rejection and derogation

when Mr. Karge called him "chicken." It would

also be psychologically consistent for Mr.

Hargrave to engage in illegal stealing behavior

for a loved one. His p cipation in the act ;

of robbery and homicide can logically be viewed

as the final explosion into consciousness of

years of bottled up anger, rage, and alienation.

For Mr. Hargrave, the taking of another person's

life was most probably neither premeditated nor

planned. His act of murder most obably was

the uncontrolled and automatic behavior of a

- frustrated, frightened and overwhelmed human

being. It was the clearly violent and

unjustified act of a tormented, long abused and

emotionally inadequate person. In the final

analysis it can be seen as a tragically understand-

able act of a — adult who was still

fimctioning on the emotional level of an abused

child. Report of Dr. Elenewski at 2, 6-7.

These brief excerpts from the attached proffer clearly

indicate the range and breadth of the mitigating evidence in this case.

That evidence is rendered of yet more effect in that it establishes a

“causal relationship" between the mitigating factors present and the

actual offense; the Supreme Court has consistently focused on such a

"causal relationship" in reducing death sentences. See Miller v-.

State, 373 So.2d 882 (Fla. 1979); Huckaby v. State, 343 So.2d 29 (Fla.

1977). In short, neither the offense nor defendant, standing alone,

warrant the imposition of the death sentence; considered together --

as they must be, Jurek v. Texas, supra ~~ they mandate its reduction to

a life sentence.

Based upon the foregoing, defendant respectfully requests

this Court to stay the pending death warrant (see simultaneously filed

motion for stay of execution), grant an evidentiary hearing and an

opportunity to fully brief the issues vaised herein, and to vacate

the judgment and/or sentence imposed in this cause.

Respectfully submitted,

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit of Florida

1351 Northwest 12th Street

Miami, Florida 33125 \

BY:

Assistant Public Defender

Seth hedownl

Assistant Public Defender

WARREN 5. SCHWARTZ

Assistant Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoiz

motion was hand delivered to the Office of the State Attorney, 1351

Northwest 12th Street, Miami, Florida, and delivered to Joel D.

Rosenblatt, Assistant Attorney General, Room 820, 401 Northwest 2nd

Avenue, Miami, Florida 33128, this 19th day of September, 1980.

t Public Defender

ts

wd

THE SIATE OF FLORIDA,

Plaintiff,

vs

LENSCN A. HARGRAVE,

Defendant.

IN THE

CIRCUIT OF

=

° i j

THE ELEVENTS

FLORIDA IN AND

CRIMINAL DIVISION

CASE NO. 75-118A

i

JUDICIAL

FOR DADE COUNTY

CIRCUIT COURT 01

ORDER DENYING DEFENDANT'S MOTION TO

VACATE JUDGMENT AND SENTENCE, DEFEN-

DANT'S MOTION FOR STAY OF EXECUTION,

STATE'S MOTION TO DISQUALIFY THE PUB-

LIC DEFENDER AND GRANTING DEFENDANT 'S

MOTION FOR EXPEDITED TRANSCRIPT

* * * 7 * * * *

THE ABOVE CAUSE came before this Court for hearing

upon the following pleadings:

Judgient and Sentence and the

Motem to Disqualify the Public Defender, (3) Defendant

Stay of Execution.

Because of th

fact that regardless of

it vas agreed by respective counsel that

(1) Defendant's Motion to Vacate '

State's Response thereto; (2) State's

e nearness of date of execution, and the

this ruling, it would .

"s Motion for

be immediately appeal

paras @ written oT

-

rranscriot of the

tc the Supreme Court of Florida; nevertheless,

to 2limin

.

233 itten orse= come

the pleadci=gs, cral

3 a<s

co"

of

As to cefendant's Motion to Vacate Judgzent and

Cars in a - e Cc eS pinion ‘cha: che State's

scsiztion cm See sere=s +5 well taken amd thar the Moticn to Vacace

der of disposition, the parcies would use the

proceedings 4s an order for the purpese of appea-

ate any possibility ef technical er =cr,

or

submitted by respect-ve counsel.

defendant or deZencant wou-c tescicy

-~

+

rather than the Court pre-

this Court, in order

herewith submits

ing the above motions. The Court consic-

azgyment by respective coumsel and citaticn:

oe -- manent Ae

c=e sct.cn was =

-— Sse =.

=

—

ewostarces, the ehese to Césce¢

was nOt under oath, Sor écetercazz

_—

whee

—

chat a veric.cal.cr

=¢ée2

Cao is oo: ee

Vee = -

he

i eo the State's 28 eo hayutleny Ch Pale &. “af , “Ce -

ts of the opinion that the State's emotion hes merit bur thar eget Ber

cause of the ‘element of time and to resolve every possible doubt in

favor of the defendant, the Court chooses to deny the State's motion,

at least util such time as this order can be ruled upon by the Susrez

Court of Florida on appeal.

As to defendant's Motion for Stay of Execution, the

Court is of the opinion that this Court's Judgment and Sentence,

having been affirmed by the Supreme Court of Florida and the defen-

dant'’s application to the Supreme Court of the United State for

relief having been denied, this Court finds no reason to further

delay the execution of the judgment and sentence, defendant havicg |

the opportunity to have a ruleing on this question by the Suprete

Court of Florida.

After the Court had so ruled on the above motions, the

defense moved for the authority to order expedited transcript of the

proceedings. The State objected thereto. The Court is of the opixi:

that the State's objections contain some merit; however, again the

Court resolves the doubt ic favor of the defendant sc that this matt

can proceec to the Supreme Court of Florida expeditious-y; wherefor

ORDERED AND ADJUDGED as follews:

1. Defendant's Motion to Vacate Judgrent anc Sentexce

be, anc the sare, is hereby DENIZOD;

2. That the State's Motion to Disqualify the Pus

a a ee oh ai , —

Defexnie-, de, anc t-e Sacze. is berebv DEN==D:

_ - < - ’ “s Sm ca | a= ee *s

3. Teac defendant s “ct=-st fa=- Stav ci _sxeccccs=. <€.

_ -—- = a ae, ~. Ee we-

anc <==2 see, =-9 —ile Os i ee

/ “ae = 3 < = 3 éee ©@& an a

4. Ther Defendant's Motion -or eb=ncT=~7 so créer

exvecic)|ec sTensc==Pt of the proceeci-gs, 7e, enc ebe sexe, is eres"

.

GRAN. =

—_ = -~ __— - = e s aa _

SCNE AND ORDERED in © sers. at Miami, Dece Covet:

>. <se2 enéae *fe Sac eA ~*~ nn *ac¢*

Florice. rnis iCtS day o= versce-, A. D., 1960

ny j ~ A

aon ; j

;

- or E °

es: Jin Smith Atcommey berere-

2

ee — —-* rm = = £ ’ .

Elliot 3. Screrxer, 2ub. veftencer i .- “ ca

Supreme Court ot Hlorwda

LESSON A. HAPSRAVE. Acvellant.

conviction enc sentence were alfimmec Sy tni5 Court on direc=

g2cea.. A Seed Xa. S<3<¢ 3€4 56.-5 « on 23 secs.

cer--2a2, 344 2.5 2.3 9°92

Zarzrave 1.22 “+5 €- =cction 2S vacate 255 3 "62:26 of

ecexser fF ~280 “-@ tris. Sturt sO5-8-

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° on Setter oe: od 96 eerzrave Ssrosen: -

cf naseas c2rFus =" > 38 S3uss 6oetG es"

assisz3a7ce cf erpe--3-# course. 248 5 2

23.5¢ “ ~6s-es OF 6.30C€% sctes. ad

«= §¢°7°e7Ee? -* é s--"3 4 aé.

ee. gest. 330 2880). | "1-7 =.

3.850 motion.

Sullivan v. Stace

Stste v.

Sc.2¢ 922 (Fla.

tnvoive cnanges

See Adams v. State. 33° S$

3$0 $o.2¢ 35

Matera, 266 $0.22 66.

1989),

acccréangly.

relief is eff:mmec,

S22coe.t.eN 3S 428

SUNDEERG. C.- ADKINS

MCDCNALS, ve Cor.

m gows mayne wows

~

372 $o.2¢ 938

(Fle. 1979

~Q

An Appeal from me Ciscuit Court in and for Dade County.

Gene ‘%ilicams, sucge ~ Case No. 7$-1138a

szscer, Public detencer. and Eilict #. Scheskec.

Zaren M. Gotti:ed., 3e= c. Weitzner anc RAcber= R. Sezsanx,

ASS:Stant Pudl=:c Ceferders, Macc. Fics:da.

Soel Dd. Rosensiactt, Assistan®

LENSON A. HARGRAVE, :

Petitioner, : CASE NO. 80-2679-CIV-JWK

v. : os we ae

LOUIE L. WAINWRIGHT, etc., : ORDER OF DISMISSAL

Respondent. sy

) f

On May 6,1981 petitioner filed this petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254 after taking a

voluntary dismissal of his initial petition that was filed

in this Court on September 25,1980. His second petition, like

the first one, seeks discharge from his judgment of conviction

and sentence of death on the grounds that his conviction and

death sentence was imposed upon him in violation of his

constitutional rights. Specifically, petitioner asserts (1)

that he received ineffective assistance of appellate counsel

during his direct appeal, and (2) that he is affected by numer-

ous sentencing irregularities which should result in the setting

aside of his sentence of death.

Respondent has moved to dhentes the petition on the grounds,

inter alia, that petitioner has not yet exhausted all of his

state remedies prior to federal habeas corpus review. Respondent

contends that petitioner has filed a mixed petition that contains

both exhausted and unexhausted claims and therefore is subject

to dismissal under the comity doctrine expressed in Galtieri

v. Wainwright, 582 F.2d 348 (5th Cir. 1978). Petitioner has

responded in opposition to this motion. 2

Because of the obvipus importance of the matter, the Court

held a hearing on the motion to dismiss and heard argument of

counsel on fhe issues raised therein. While the Court does

not fully accept the respondent's contention that exhaustion is

This text is long and has been trimmed here. Open the source document for the complete record.