# Appendix — Dugger v. Hargrave > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1429%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1989 - **Citation:** 489 U.S. 1071 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. B@2 BM BE TE © 88 85 89S BS Be 1 FF aa «J ree nated ia IN THE SUPREME COURT OF THE UNITED STATES eS RICHARD L. DUGGER, Secretary, Florida pe suit Gerrections en state Gf #iGride “thee etitioners, xf we ~ ara “3 vee of $s we AEIEE PAROBAVE. ee Oe ae eee Co Oe c sna CEA , is ess . z rT, RESPONDENT maaan Se : i, Hifi a 4, ee tome ta soothe phat: 5 ‘fobs —— OP. df as Lie Se BENNETT H. BRUMMER . Public Defender _. KAREN MM. IEB a + Assistant Pubbs fende ya ita a A 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. .. 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 : ©. . - ** 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 — 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. ’ ° 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 required in this instance, in light of the recent pronouncement of the United State Supreme Court in Estelle v. Smith, 49 U.S.L.W 4490 (1981), it is the Court's judgment that a return to the state for reconsideration of the issue raised in the petition challenging the admission into evidence of testimony by @ court- appointed psychologist would not be fruitless It appears that f- 491 D | — Qt ss. i'm. So ne 2 mans — ee ‘ the law has changed sufficiently to warrant reexamination of the issue by the state courts. The Florida Supreme Court has recently had occasion to comment upon the finality of postconviction relief under these circumstances: [W]e today hold that an alleged change of law will not be considered in a capital case under Rule 3.850 unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) con- stitutes a development of fundamental signifi- cance. Witt v. State, 387 So2d 922, 931 (Fla. 1980). Whether the issue raised by petitioner sub judice meets the criteria set forth above should be finally decided by the state courts, not this Court. Accordingly, this Court will refrain from deciding the -federal issues raised by the petitioner until the Florida courts have the opportunity to review whether petitioner's sentence of death should be upheld where a court appointed psychologist was allowed to testify as to his examin- ation of petitioner without first advising petitioner of his Miranda rights. 2 It is therefore 7 ORDERED AND ADJUDGED that the motion to dismiss is GRANTED and this cause is hereby DISMISSED without prejudice to reapply after all issues have been fully exhausted in the state courts. DONE AND ORDERED in Chambers at Miami, Florida, this / F day of June 1981. 2 gen i — examination that the results of the examination could be introduced in seeking the death penalty, ané petitioner was not advised that he had a right to remain silent, could terminate the interview if he so wished, or that he could confer with counsel prior to the examination (see attached memorandum for additional facts). BE. Overbroad application of sggravating circumstance: the trial court failed to properly limit the application of Section 921.141(h), Florida Statutes (1975), in its instructions to the jury and the trial court and the Supreme Court of Florida found subsection (5) (h) applicable to this case based upon an overbroad construction of that circumstance, in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States (see attached memorandum for additional facts). F. Reweighing of aggravating and mitigating circumstances by state supreme court: the Supreme Court, after finding that the trial court had erred in applying an aggravating factor in sentencing petitioner to death, reweighed the remaining aggravating circumstances and the mitigating circumstances and determined that death was the appropriate sentence, in violation of its own precedent and the Eighth and Pourteenth Amendments to the Constitution of the United States. G. Disproportionate imposition of death sentence: the imposition of a death sentence, on the facts of this -7- 123 rr __ _ SE - — -- i i o-phe- iota : be. a s ee ‘“s*we “ ~~ -+-® gece ee case, is disproportionate in comparison with other Florida cases in which Geath has been helé an inappropriate punishment, ené in contrast with Florida cases in which Geath has been held properly imposed, rendering the death sentence in this case unlawful under the Eighth ané Pourteenth Amendments to the Constitution of the United States (see attached memorandum for additional facts). 13. Each of the grounds listed in paragraph 12 have been presented to the Supreme Court of Florida. 14. There are no petitions, motions, or applications pending in any court with respect to the conviction and sentence in this case. 15. Petitioner has been represented by the following counsel: a. at trial and sentencing by Douglas Williams and Micheel Tarre of Miami, Florida. b. on direct appeal to the Supreme Court of Florida and on the petition for writ of certiorari in the Supreme Court of the United States by Bennett B. Brummer, Public Defender and Paul Morris, Assistant Public Defender and Elliot RB. Scherker, Karen M. Gottlieb, Beth C. Weitzner, Robert R. Schrank, and Warren S&S. Schwartz, Assistant Public Defenders, of Miami, Florida. 16. Petitioner was not sentenced on more than one count of an indictment or on more than one indictment in the same court at the same time. 124 sentence of Geath, ané to grant such ané further relief as this Court shell Geen appropriste. Respectfully submitted, BENNETT BE. BRUMMER Public Defender Eleventh Juéicial Circuit of Floridéa 1351 Northwest 12th Street Miami, Ploriéa 33125 (305) 545-3005 ° ER nt Public Defender REN M. LIEB Assistant Public Defender ie 125 91 STATE OF FLORIDA ss COUNTY OF BRADFORD BEFORE ME, the undersigned, personally appeared LENSON A. HARGRAVE, who being first duly sworn, deposes ané says that the facts in the foregoing petition are true and correct to the best of his knowledge and belief. Y 7 ON A. BARGRA Sworn to and subscribed before me this 2c day of January, 1983. De ~% Notary Public State of Plor ide, ehLarge ROTARY PUBLIC. STATE OF FL ox COMMISSICN CATES KAR 26 1808 STATE OF FLORIDA ss COUNTY OF DADE BEFORE ME, the undersigned, personally appeared ELLIOT BR. SCHERKER, who being first duly sworn, deposes and says that the facts in the foregoing petition are true and correct to the best of his knowledge and belief. : / ! LIOT H. SCHERKER Sworn to and subscribed before me this ZY# day of March, 1983. State of Flérida at Large sts.» Fx%.. Sax 2! Keno 126 My Gere ccca Begue: Ms.. 6, 1584 besos: ims i -10- 92 oe Meee ye Pesos Rarer CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing petition for writ of habeas corpus by person in state custody was hand delivered to PAUL MENDELSON, Assistant Attorney General, 401 N.W. Second Avenue, Room 820, Miami, Florida this Diu day of March, 1983. t Public Defender 127 siie 93 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CASE NO. 84-5102 LENSON A. HARGRAVE, Petitioner/Appellant, vs. RICHARD DUGGER, Secretary, Department of Corrections, State of Florida, Respondént/Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Nature of Preference Habeas Corpus, 28 U.S.C. §2254 EN BANC BRIEF OF RESPONDENT / APPELLEE ROBERT A. BUTTERWORTH Attorney General Tallahassee, Florida RICHARD E. DORAN RALPH BARREIRA Assistant Attorneys General Ruth Bryan Owen Rhode Building Florida Regional Service Center 401 N.W. 2nd Avenue (Suite 820) Miami, Florida 33128 (305) 377-5441 94 —_— ae — STATEMENT REGARDING PREFERENCE This appeal is taken from a final order denying a petition for writ of habeas corpus filed on behalf of petitioner-appellant, a state prisoner, under 28 U.S.C. §2254. Pureuant to Eleventh Circuit Rule II, this case is entitled to preference under subsection (a)(3) of Appendix One to the rules. STATEMENT REGARDING ORAL ARGUMENT This Court has ordered this cause to be heard en banc with oral argument. -— t i TABLE OF CONTENTS STATEMENT OF THE ISSUES........ccecccccccees STATEMENT REGARDING PREFERENCE.............. of- STATEMENT REGARDING ORAL ARGUMENT........... -ii- TABLE OF CITATIONS......-.ccccescccesccecces Iv - IX PAOD T LON s 655 6 5 55s kee ei eeccrecceees 1 STATEMENT OF THE CASE......ccccccscccccccece 2 STATEMENT OF JURISDICTION. ..........-22eeee- 3 SUMMARY OF ARGUMENT......... cece ecrecececes 4-5 BRGURTERNT «ccc cc ccccccccscccccesvcssceccccsess 6-45 THE DEATH SENTENCE IMPOSED UPON PETI- TIONER IS UNLAWFUL, IN THAT HE WAS DENIED THE OPPORTUNITY TO PRESENT AND CONSIDERED NONSTATUTORY MITIGATING CIRCUMSTANCES AT SENTENCING, THE JURY WAS INSTRUCTED TO WEIGHT AS MITIGATING ONLY THAT EVIDENCE WHICH SATISFIED THE STANDARDS OF THE STATUTORY MITIGATING CIRCUMSTANCES, AND THE TRIAL COURT AND STATE SUPREME COURT FAILED TO GIVE MITIGATORY WEIGHT TO NONSTATUTORY MITIGATING CIRCUMSTANCES... ...ccscececees 6-43 as SECTION 921.141(5)(h), FLORIDA STATUTES (1975), ESTABLISHING AS A POTENTIAL AGGRATING CIRCUMSTANCE THAT A HOMICIDE WAS "ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL, " IS UNCONSTITUTIONALLY VAGUE AND OVER- BROAD AS APPLIED IN THIS CASE BY THE STATE TRIAL COURT AND SUPREME COURT TABLE OF CITATIONS ADAMS V. STATE £ 8 Eg. ee | ee re rer 23 ADAMS V. WAINWRIGHT eM el a ee) er ee 6, 7, 27,28 ALDRIDGE V. STATE AZ F.L.W. 129 (Fla. March 12, 1987) .....ccccceses 25 ALVORD V. WAINWRIGHT 725 F.2d 1282 (llth Cir.), cert. denied Se aa EE oa herd be dese eh bh06 da e00ee bee 33 BOOKER V. WAINWRIGHT F.2d. th Cir.), cert, denied ROG see CEE CUES) bik kab kv bc s0GO SES 6 he awaneaeesa 36 CALIFORNIA V. BROWN 479 U.S. 107 S.Ct. Be BED heh ck odes ese cendauadaeaeas ds 29, 42 CAMPBELL V. STATE he ee @ fm ee eS re 21 CAMPBELL V. WAINWRIGHT 738 F.2d 1573 (llth Cir. 1984), cert. denied u.s. Se sd as a hic hoa a ok ae 6, 12, 20, 21 CITY OF MIAMI V. MURPHY See ee ee Es SEED vnccascsaanseraneaanecas 18 COOPER V. WAINWRIGHT Oey Bemee eee wee Shes BOOED cdiccceckceccnaactss CRIDER V. KEDHANE Se aes, ee es NO. SODRD oon da eke ceed cvcdex 13 DOBBERT V. STRICKLAND 718 F.2d 1516 (lith Cir. 1983), cert. denied eee: Sf UC errr CLE hEERKTS GERAD 35 EDDINGS V. OKLAHOMA RO We SE hake bk dedanesedescenecevessers FIESTA FASHION INC. V. CAPIN °. Fla. A Approved SOP ie ee a I bch nec cc cécoketssnccaaus 11 iv * FORD V. STRICKLAND F 4 th Cir.) (en banc), cert. denied a ee cen gadeus auaa exis FOSTER V. STRICKLAND th Cir. 1983), cert. denied 707 F.2d 1339 (lith G66 U.S. 993 CUGBA) 2... cccwcccccccccccccccesescaces FRANCOIS V. WAINWRIGHT TGR WedO BETS CREM CAE. U9BA) 2. ccccccccccecscss FRANCOIS V. WAINWTIGHT FS Ouee BOM GEEEM GEE. 1985) 2. cc cccccsccccssese GARCIA V. STATE So. ot Re 7 a eee are ara ier era HARGRAVE V. SATE Fla. 1978) cert. denied So. J 2A 8... ere re oe aa HARGRAVE V. STATE Oo. POM s RFRA) .cccccacccccsccececcecen HARGRAVE V. WAINWRIGHT SEO 50.20 BOZL CEES. 1980) ..cccccccccccccccccccees HARGRAVE V. WAINWRIGHT 804 F.ed 1182 (llth Cir. 1986), vacated F.2d Ss 20s OO, WOT) cacedacesa HARVARD V. STATE ZB6 So.2d 537 (Fla.), cert. denied U.S. Be Ps ee ERUOOD Seca a ck ccnanncnesctcccusecenas HENDERSON V. STATE ee Ey Es BOOED cc csb ce cnecsecsnecvtensass HARICH V. WAINWRIGHT No, 60-310? (llth Cir. March 18, 1987) ............ HITCHCOCK V. WAINWRIGHT 770 F.20 1514 (ilth Cir. 1985) (en banc), cert. granted U.S. BOO BoE. BeWe CUDBE) cnc cccccicccccccccccccccccces IN RE GRAND JURY INVESTIGATION .) cert. denied 542 F.2d 166 (3d Cir.) d 97 S.Ct. 775 (1977) wcccccccccccccveees eccceccccese 20 20 6, 10, 14, 20, 25 44 27, 40, 99 JACKSON V. STATE 6. I a a JARRARD V. ASSOCIATES DISCOUNT CORPORATION Fla. JOHNSON V. WAINWRIGHT F. Ge MeO s ROMO) cesbvesscncsanancces JOHNSON V. WAINWRIGHT Pee Weer eee GEO, BORE) oc ccicacccccccccess LESLIE BROTHERS V. ROOPE 108 Fla. 209 pO, es SE LOCKETT V. OHIO 438 U.S. 586 (1978) ....... ere erry Ty Pree Cre eT eee LUCAS V. STATE oO. I RIED sac a as wine aiaiaila aca a) aod basa hoe McGAUTHA V. CALFIRONIA PEE oc cu bts ce daweea do s.0wbe0ss006s MONTGOMERY V. DEPART. OF HEALTH AND REHABILITATION SERVICES , O°. ay BG MO BOOS) css ccecsceca ne MORGANO V. STATE 0.2 Ss, Ms BOD S06 cadccddsccvesece MURRAY V. CARRIER 477 U.S. 106 S.Ct. 2639 Ph Be BOT MEU) 66 b 6b ccc ccdcsccesccessccccce NELSON V. SELDON CYPRUS DOOR COMPANY 78 Fla. 203 ee ee ED os in cb 5 506 6 6c ec ese deen ans OLIVER V. WAINWRIGHT F. t Bs AMMO) ccccvccccccccsssnecccccs PARKER V. STATE oO. Waes BROAD cases Paes Ee re ee ee PARKER V. STATE oO. POW. GREP) 64 sceverssedivacsscecsses vi 16 18 30 ll 19 20 12, 15 400 oe | * PENNSYLVANIA EX REL SULLIVAN V. ASHE 302 U.S. 32 G2 LBB. 43 CUGSS) cc cccccscccccccccsccccccccscsess PHILLIPS V. STATE °. Re Oe sadecdaseeanddesvads nasa s POLYCOAT CORP. V. HIRSH INDUSTRIES oO. Fla. 4th DCA Dt Grancvoberaakaseneue PRICE WISE BUYING GROUP V. NUZUM 0.2 @. App. IFT) wccccccceccscscccces PROFFITT V. WAINWRIGHT -2 th Cir.), cert. denied Re Wa I Bris cc cnddabdas ede edduaesdvdeae RATCLIFF V. ESTELLE r.<2 4 th Cir.), cert. denied ae I PED bk 6 GAUSS KSSSSANERAED ERA ERED GS REED V. ROSS 468 U.S. 1 104 S.Ct. 2901 G2 0.86.26 2 CIDBR) 2. cccccccscccsccccccccccccccces REGAN V. ITT INDUSTRIAL CREDIT COMPANY O°. a. lst 8) 3) arrerrrevr rrr er * SMITH V. MURRAY 477 U.S. 106 S.Ct. 2661 Ge Roce ee COUEO) dace cacencecesseeenesceeseseas * SONGER V. STATE oO. Fla. 1978), cert. denied ek es SD OES bh ch 0 da8 0s Cah ehh KS OR KORA SERA ROA * SONGER V. WAINWRIGHT 769 F.20 1468 (Lith Cir. 1985) (en banc) SPENKELINK V. STATE Poe ae OP UEERs ASTI) cc ccccccccccccsccsnccscese re V. STATE °. Ye |). STATE V. MATERA BOE WeMe WOE TENG. 1972) cecccccccnccccscccenceces STATE V. NEIL 12, 37-38 26 o. (Fla. 1984) ........... cecccccccccece 1 ~~ ° STRAIGHT V. WAINWRIGHT -e t Ba BOOOP ceecccacwscccscece SWAN V. ALABAMA SE ID wn 6h 06 0060006060806 6000006. SULLIVAN V. STATE o. Bs BGID) cccccccccsccscccceses SUNDELL V. STATE 0.e Sk bee Ree ee ee TAYLOR V. FINLAYSON oO. Fle. i Riviewsseewsesbbaceéunans THOMAS V. STATE oO. DMs BOUED 4oscccssewecacoddiorneres THOMAS V. WAINWRIGHT 767 " 2d Faas Tlith Cir. 1985), cert. denied 106 S. oe. “1 7E1 CEDEG) cc cccccccccccccccccccccecs THOMPSON V. WAINWRIGHT TROEDEL V. STATE °. it. ie