Petition for Writ of Certiorari — Florida v. Christian

’ i

y nreme Court, WS,

89-1153. OTL ED

/ JAN AL 19%

CLERK

‘

:

SUPREME COURT OF THE UNITED oAKRES

October Term 1989

STATE OF FLORIDA,

Petitioner,

Vv.

DOY JAMES CHRISTIAN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF OF PETITIONER

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

MARK C. MENSER

ASSISTANT ATTORNEY GENERAL

DEPARTMENT OF LEGAL AFFAIRS

THE CAPITOL

TALLAHASSEE, FL 32399-1050

(904) 488-0600

QUESTION PRESENTED

1. WHETHER THE FLORIDA SUPREME COURT,

IN REVIEWING A SENTENCE OF _ DEATH

PURSUANT TO TEDDER v. STATE, 322 So.2d

908 (Fla. 1975), MAY RELY UPON VICTIM

IMPACT EVIDENCE IN EXPRESS VIOLATION OF

BOOTH v. MARYLAND, 482 U.S. 486 (1987).

TABLE OF CONTENTS ~

PAGE(S)

QUESTION PRESENTED i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iii

OPINIONS BELOW 2

JURISDICTION 2

CONSTITUTIONAL

PROVISIONS INVOLVED 2,3

STATEMENT OF THE CASE

AND FACTS 4-12

REASONS FOR GRANTING THE WRIT

I

THE FLORIDA SUPREME

COURT, IN RESENTENCING

MR. CHRISTIAN, VIOLATED

THE PRECEPTS OF BOOTH v.

MARYLAND, BY BASING

ITS SENTENCE EXCLUSIVELY

ON THE CHARACTER AND

REPUTATION OF THE VICTIM. 13-20

CONCLUSION 21

TABLE OF AUTHORITIES

CASES

Booth v. Maryland,

482 U.S. 486 (1987)

Christian v. State,

550 So.2d 450 (Fla. 1989)

South Carolina v. Gathers,

490 U.S. P

104 L.Ed.2d 876 (1989)

Tedder v. State,

322 So.2d 908 (Fla. 1975)

OTHER AUTHORITIES

28 U.S.C. §1257(3)

Amendment VI, U.S.Const.

Amendment VIII, U.S.Const.

Amendment X, U.S.Const.

Amendment XIV, U.S.Const.

- iii -

PAGE(S)

i,12,13

13

SUPREME COURT OF THE UNITED STATES

October Term 1989

STATE OF FLORIDA,

Petitioner,

Vv.

DOY JAMES CHRISTIAN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

The Petitioner, State of Florida,

respectfully prays for issuance of a

writ of certiorari to review the final

judgment and opinion of the Supreme

Court of Florida entered on September

28, 1989, with rehearing denied on

November 6, 1989.

OPINIONS BELOW

The opinion of the Florida Supreme

Court is reported as Christian v. State,

550 So.2d 450 (Fla. 1989). The opinion

is reproduced in the appendix.

JURISDICTION

The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §1257(3).

CONSTITUTIONAL

PROVISIONS INVOLVED

Amendment XIV of the Constitution of

the United States provides that:

All persons born or

naturalized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United States

and of the State wherein they

reside. No State shall make

or enforce any law which

shall abridge the privileges

or immunities of citizens of

the United States; nor shall

any State deprive any person

of life, liberty or property

without due process of law;

nor deny to any person within

its jurisdiction the equal

protection of the laws.

Amendment VI provides:

In all criminal prosecutions

the accused shall enjoy the

right to a speedy and public

trial, by an impartial jury

of the State and district

wherein the crime shall have

been committed, which

district shall have

previously been ascertained

by law, and to be informed of

the nature and cause of the

accusation; to be confronted

with the witnesses against

him; to have compulsory

process for obtaining

witnesses in his favor, and

to have the assistance of

counsel for his defense.

Amendment VIII provides:

Excessive bail shall not be

required, nor excessive fines

imposed, nor cruel and

unusual punishments

inflicted.

Amendment X provides:

The powers not delegated to

the United States by the

Constitution, nor prohibited

by it to the states, are

reserved to the states

respectively, or to the

people.

STATEMENT OF THE CASE AND FACTS

Doy James Christian was an inmete in

the Florida State Prison. Christian had

a long and violent criminal history,

with convictions for aggravated assault

(1975), robbery (1976), and aggravated

battery (1983). (R 1442-1447). In

prison, Christian had an equally evil

disciplinary record for conspiracy,

fighting, possession of illegal weapons

and assaults. (R 1457).

Christian and his victim, an inmate

named Moore, were playing cards for

money. (R 1194). Christian won all of

Moore's money and agreed to let Moore

try to recoup his losses by wagering two

bars of soap. (R 1194). Moore won the

hand, but Christian (who was much larger

than Moore) accused Moore of cheating

and simply took the soap. (R 1195).

Moore went to Christian's cell to talk

to Christian about the game, but was

told by Mr. Christian to forget about

the game. (R 1196).

Later that day, Moore hit Christian

in the head with a curling bar as

Christian was playing cards. (R 1197).

Christian was taken to a clinic for

observation but required no treatment.

He was there for about a day and a half.

(R 1198).

Moore, on the other hand, was locked

away in "close" (solitary) confinement

so that he could not injure Christian

again.

Christian returned to population on

"M" wing.

Moore, who was on the wing but locked

up in close confinement, yelled threats

at Christian (R 1209), and Christian, in

turn, threatened Moore. (R 832). Moore

could not get to or harm Christian.

On May 2, 1987, Moore was shackled by

the prison guards, who began escorting

him to the infirmary. (R 781 -

et.seq.).

Doy Christian had planned for this

moment. (R 1220). Earlier, Christian

had gone to an inmate named "Hubcap" and

obtained a knife. (R 1225). As Moore

was led from his cell, Christian fetched

his knife from its hiding place. (R

1215).

Christian rushed the handcuffed

Moore, brushing past the unarmed guards

as the incapacitated victim tried to run

for his life. When Moore was caught by

Christian, an incredible assault began.

(R 791-792). As Moore begged for his

life, Christian spat in his face. (R

920). Christian then methodically began

cutting a circular pattern in Moore's

chest. (R 939-940). Christian stabbed

Moore's eyes and returned to stabbing

Moore's chest. (R 945-946). When he

was through stabbing Moore, Christian

threw Moore's body off of the third

floor balcony where the attack took

place, dropping (the still alive) victim

to his death, crushing his skull. (R

847, 886).

Christian attempted to attribute the

murder to his head injury, but an

expert, Dr. Aviles, testified that an

untreated blow to the head sufficient to

cause a personality change would have

killed Christian before the murder. (R

1126). Dr. Krop, Christian's expert,

said that Christian may have _ had

impaired judgment due to- emotional

stress (R 1538-1552), but he was not

psychotic (R 1548), and fully

appreciated the criminality of his

conduct. (R 1550). Dr. Krop also

rejected Christian's self-serving

"blackout" theory. (R 1538).

The advisory jury recommended a life

sentence for Christian} following his

conviction. The trial judge imposed an

“override” sentence of death, finding

these four aggravating factors:

(1) Christian committed this

murder while under sentence.

(2) Christian had prior

convictions for violent felonies.

(3) The murder was especially

heinous, atrocious or cruel.

(4) The murder’ was cold,

calculated and premeditated without any

pretense of moral or legal

justification. (R 1665-1670).

In sentencing Christian, the trial

court rejected Mr. Christian's claim

t The vote was a close, 7-5 election.

See (R 1670).

that the character of the victim and the

fact that the victim was a convict were

sufficient mitigating factors to excuse

this killing. (R 1670).

Mr. Christian appealed to the Supreme

Court of Florida, raising three claims:

(1) The trial court's exclusion

of lay opinion testimony offered, in

part, to offset expert psychiatric

testimony regarding the affect of

Christian's head wound.

(2) The propriety of the

override sentence given the "social

pressure" on Christian to kill a rival

inmate.”

(3) The propriety of the finding

that this murder was heinous, atrocious

or cruel.

. Mr. Christian contended, on appeal,

that the social pressure on Christian to

eliminate Mr. Moore was a "pretense' of

moral and legal justification for this

murder. (Brief of Appellant, pp. 36, et

seq.). :

=.

While Mr. Christian's appeal was

pending, the Florida Supreme Court

somehow obtained non-record files

including records of some "special

investigation" by the Florida Department

of Corrections regarding this murder.

By letter dated December 27, 1988, the

Court invited counsel to respond to the

question of whether these non-record

materials could be used. (App.-page 3).

Both the State and Mr. Christian

objected to the use of non-record

materials. (App.-page 2). Based upon

these objections, the Court represented

to counsel that the non-record

information would not be used. (App.-

page l).

When, on September 28, 1989, the

Court published its opinion affirming

Christian's conviction by vacating his

sentencing, the parties discovered that

the state court had, in fact, relied

upon non-record information and had even

gone so far as to cite to it at the end

of the court's opinion. (App.-pages 14,

15).

The State notified defense counsel

and then moved for rehearing. Defense

counsel stood mute, but the court denied

relief without denying it had used non-

record material.

The opinion itself (at least the

majority opinion) does not discuss the

facts of the crime or relate them to the

four valid statutory aggravating

factors. Rather, the opinion reads as a

massive character study of the victim,

explaining why he "had" to be killed by

Christian to preserve Christian's social

standing and peace of mind while in

prison.

im <@ stinging dissent, Justice

McDonald (alone) discussed the facts of

the crime and the nature and character

of the defendant without engaging in

victim-impact review. The State moved

for rehearing, citing Booth v. Maryland,

482 U.S. 496 (1987), but was again

denied relief.

REASONS FOR GRANTING THE WRIT

I

THE FLORIDA SUPREME COURT, IN

RESENTENCING MR. CHRISTIAN,

VIOLATED THE PRECEPTS OF

BOOTH v. MARYLAND BY BASING

ITS SENTENCE EXCLUSIVELY ON

THE CHARACTER AND REPUTATION

OF THE VICTIM.

In Booth v. Maryland, supra, and in

; South Carolina v. Gathers, 490 U.S.

, 104 L.Ed.2d@ 876 (1989), this

Honorable Court reaffirmed the basic

notion that a sentencing decision in a

Capital case must focus upon the nature

of the crime committed and upon the

characteristics of the defendant. So-

called "victim impact" evidence or

evidence relevant to the character and

history of the victim is, with limited

. 3 J

exception, irrelevant.

3 Florida recognizes as "mitigating" the

involvement of the deceased in bringing

about his demise in cases of actual

self-defense.

os £8 <6

Ee

In resentencing Mr. Christian on the

strength of secret prison investigative

files, the majority of the Florida

Supreme Court reversed a capital

sentencing decision that properly

focused itself on the defendant and his

crime and substituted therefor a new

sentence which focused exclusively upon

the character of the victim. If Booth

and Gathers mean what they say, then

constitutional error of proportions

sufficient to compel certiorari review

is present, for the decision to grant

life cannot be predicated upon the

fortuitous murder of a "bad" victim any

more than a death sentence cannot be

based upon the demise of a "good"

person.

The murder at bar was cruel and

vicious, yet the curious decision of the

Florida Supreme Court does not even

mention the facts or circumstances of

the murder. Instead, the five page

majority opinion tells us what a bad

criminal record Alfred Moore had, how

Moore "cheated at cards", how Moore

hated Christian, how Moore’ yelled

threats at Christian, how Moore once

attacked Christian, how Moore, at other

jails, had behaved badly and how Moore's

misconduct gave Christian a “pretense of

moral justification" for the murder that

followed.

We must re-examine that "pretense"

just as Justice McDonald did in dissent.

Christian and Moore fought over a

card game. Christian, who was bigger

than Moore, accused Moore of cheating

but Moore's "cheating" was never proven.

(The majority just assumed Moore cheated

on Christian's word). It was Christian

who forcibly took Moore's soap (the

wager) after the smaller man had won,

a t@i«

a

Moore hit Christian, but all of the

medical experts agreed that the blow was

not serious enough to alter Christian's

personality. The Florida Supreme Court,

on a cold transcript, ignored all the

experts in favor of some inmate

testimony that favored Christian's claim

that he "changed".

Christian and Moore exchanged verbal

threats. Moore did not, alone, threaten

Christian.

Moore was locked up in disciplinary

confinement and had no physical ability

to get to or injure Christian.

Christian's existence was not endangered

by the verbal retorts of a man locked in

a solitary cell.

On the day of the murder, the victim

was unarmed, handcuffed and under

restraint from two prison guards two

floors above Doy Christian. He posed no

threat.

Christian retrieved a knife, stalked

Moore, chased Moore and killed Moore.

The methodical, circular, dissection

of Moore's chest, the stabbing of

Moore's eyes, the spitting in Moore's

face and the dropping of the (still

alive) Mr. Moore off of the third floor

walkway - done while the handcuffed

victim pled for his life - again draws

Mr. Christian's conduct - not Moore's

character - into question.

The majority opinion describes the

actual murder in two sentences while

describing Moore's fate merely as death

by "multiple stab wounds and blunt

trauma head injuries". The four

statutory aggravating factors are listed

in a small footnote.

The need for application of Booth to

this situation should be obvious. This

murder took place in a prison. By their

nature, prisons are populated by less

than respectable people, including

people with violent histories and

propensities. Still, inmates are living

human beings. They deserve’ the

protection of society's laws. Their

lives are not subject to forfeiture at

whim, nor are their lives less worthy of

legal protection, just because they are

currently in prison.

By stretching the concept of

“pretense” (of moral or legal

justification) into leave to put the

victim on trial, the Florida Supreme

Court has radically shifted the focus of

the capital sentencing process from the

defendant to the victim. In the

process, the Court has cheapened the

value of those lives caught up in the

prison system. While the “value” of

those lives may not be aé federal

» S08 x

constitutional issue, the shifting of

the focus of the sentencing process

certainly is.

The Booth ramifications are even more

Sinister. A divided Supreme Court, with

sympathy for the victims of crime,

nevertheless was lawfully obliged to

exclude "victim impact evidence" from

the capital sentencing process. Now,

victims stand to be told that evidence

of their good character will be

inadmissible but that the defense will

be free to put their “bad” character on

trial. Such a result, we suggest, is an

interpretation of Booth which justifies

the intervention of the Court under Rule

17.

Mr. Christian, not Mr. Moore, was the

person on trial. If the Florida Supreme

Court had based a decision affirming

Christian's death sentence on a

favorable character analysis of the

victim, especially on the strength of

nondisclosed evidence, the defense would

demand review. The error and the need

for review is no less severe under the

existing facts.

oo. Mic

CONCLUSION

It is respectfully submitted that

certiorari should be granted.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

MARK C. MENSER

Asst. Attorney General

DEPT. OF LEGAL AFFAIRS

The Capitol

Tallahassee, FL 32301

(904) 488-0600

COUNSEL FOR PETITIONER

~~

SUPREME COURT OF FLORIDA

Wednesday

January 18, 1989

DOY JAMES CHRISTIAN, *

*

Appellant, *

* CASE NO. 71,636

Vv. *

*

STATE OF FLORIDA, * Circuit Court No.

* 87-195 CF

Appellee. * (Bradford)

*

e @ 2 Cit 2: 2S. = Ve -e e

The Court having received comments

from both parties concerning the Special

Investigation done on appellant,

IT IS ORDERED by the Court that this

document be returned to the Department

of Corrections.

A True Copy TC

cc: Hon. Richard Dugger

TEST

David Davis, Esq.

Mark Menser, Esq.

Sid J. White

Clerk,

Supreme Court

App.-1

OFFICE OF THE ATTORNEY GENERAL

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-1050

January 5, 1989

Mr. Sid White, Clerk

Supreme Court of Florida

Supreme Court Building

Tallahassee, FL 32301

RE: Doy James Christian v. State

Case No. 71,636

Circuit Court Case No. 87-195 CF

Dear Mr. White:

In response to the Court's inquiry of

December 27, 1988, this office suggests

that the Special Investigation from the

Department of Corrections should not be

reviewed or considered by the Court.

The State believes that non-record

material should not be’ considered,

particularly where said material

contains irrelevant and_ potentially

prejudicial material.

We understand that Mr. Davis has also

assumed this position on Mr. Christian's

behalf and, therefore, that the parties

App.-2

agree that the Investigation should not

be considered.

Sincerely,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

MARK C. MENSER

Assistant Attorney General

MCM: lmb

App.-3

SUPREME COURT OF FLORIDA

Tallahassee 32399-1927

December 27, 1988

David A. Davis, Esq.

Asst. Public Defender

P.O. Box 671

Tallahassee, FL 32302

RE: Doy James Christian v. State

Case No. 71,636

Circuit Ct. Case No. 87-195 CF

Dear Mr. Davis:

This Court is in receipt of a copy of

the Special Investigation from the

Department of Corrections in the above

case. We are not sure whether the trial

judge saw this report or not so the

Court invites comments from both parties

on this matter on or before January 9,

1989. Please come by the Clerk's Office

to view this report.

Most cordially,

By: /s/ Debbie Causseaux

Chief Deputy Clerk

Sid J. White

Clerk Supreme Court

SJW: dec

cc: Mark Menser, Esq.

App.-4

SUPREME COURT OF FLORIDA

No. 71,636

DOY JAMES CHRISTIAN, Appellant,

vs.

STATE OF FLORIDA, Appellee.

[September 28, 1989]

PER CURIAM.

Doy Christian appeals his conviction

of first-degree murder and sentence of

death. We have jurisdiction. Art. V,

§3(b)(1), Fla.Const. We affirm the

conviction, but vacate the sentence and

remand for the imposition of a life

sentence in accordance with the jury's

recommendation.

On April 12, 1987, Christian and the

victim of this crime, another inmate at

App.-5

Florida State Prison named Alfred Moore,

were playing cards. Christian was

winning. Moore wagered two bars of soap

and then attempted to cheat in an effort

to regain what he had lost. Christian,

however, caught Moore and took the two

bars of soap. Under the inmate "code,"

anyone caught cheating at cards lost his

entire wager.

Later that day, Moore was still

harboring an insane hatred of Christian

over the incident. Sneaking up behind

Christian, Moore brandished ae forty-

pound curling iron used by weight

lifters and smashed it into Christian's

head, knocking him unconscious

immediately. Moore would have continued

pounding Christian had another inmate

not intervened. Even then, Moore begged

the other inmate to release him so he

could kill Christian. Christian

App. -6

ii

suffered a deep head wound, requiring

stitches and two days of observation.

Moore's violence toward Christian did

not end with the attack. For the next

few weeks, Moore mounted a constant

barrage of threats at Christian and

threatened to kill Christian's parents

when he was released from prison. He

threatened to inflict further injury on

Christian, promised he would kill

Christian sooner or later, and made

repeated suggestions that Christian

would be forced to become his homosexual

object. These threats continued up

until the day of Moore's death.

Three weeks after Moore's initial

attack on Christian, Christian took

matters into hi own hands. When Moore

was being escorted in handcuffs through

the prison by two unarmed = guards,

Christian managed to shove the guards

App.-7

aside and attack Moore with a knife that

Christian previously had hidden.

Christian then pushed Moore off a third-

floor deck. Moore died of multiple stab

wounds and blunt trauma head injuries.

A jury convicted Christian of first-

degree murder and recommended a sentence

of life imprisonment. However, the

trial judge found four aggravating

factors and none in mitigation and

sentenced Christian to death.

In this appeal, Christian first

argues that the trial court erred in

excluding testimony tending to prove he

lacked the mental ability to form

specific intent. Specifically, defense

Committed by person under sentence of

imprisonment; previous conviction of

violent felony; heinous, atrocious, or

cruel; and cold, calculated, and

premeditated with no pretense of moral

or legal justification. §921.141(5)(a),

(b), (h), (i), Fla.Stat. (1987).

App.-8

defense counsel had attempted to

introduce testimony by several inmates

that Christian's mental condition

changed following Moore's attack,

possibly as a result of head injuries.

This argument essentially is in the vein

of "diminished capacity," a defense

recently rejected in Florida. Chestnut

v. State, 538 So.2d 620 (Fla. 1989).

Accordingly, the trial court's ruling

was proper on this issue.

After examining the arguments) of

counsel and conducting an independent

review of the record, we find that there

was sufficient evidence to support

Christian's conviction, which we affirm.

As to the penalty, Christian first

argues that the trial court erred in

finding that the homicide "was committed

in a cold, calculated, and premeditated

manner without any pretense of moral or

App.-9

ieineeneecieilinnenieinetietemneaeill

legal justification.” §921.141(5)(i),

Fla.Stat. (1987). Christian contends

that even if his actions demonstrated

calculation, they nevertheless were

based on at least a “pretense of moral

or legal justification.”

In Cannady v. State, 427 So.2d 723

(Fla. 1983), this Court addressed the

issue of what constitutes a "pretense"

of moral or legal justification. We

found that Cannady had such a pretense

because, during his confessions, he

repeatedly stated that he never intended

to harm the victim. The evidence

corroborated these statements, since it

showed that Cannady had shot the victim

only after the victim jumped at him.

There was no evidence to disprove these

contentions.

Similarly, in Banda v. State, 536

So.2d 221 (Fla. 1988), cert. denied, 109

App.-10

S.Ct. 1548 (1989), we also found a

pretense of justification. There, we

were swayed by evidence of the victim's

violent nature and apparent ability to

harm Banda, which caused a plausible

fear in Banda that the victim would try

to kill him. We then concluded that a

"pretense" of moral or legal

justification could consist of any

"“colorable” claim . . . that {the}

murder was motivated out of _ self-

defense, albeit in a form clearly

insufficient to reduce the degree of the

crime." Id. at 225.

On the other hand, this Court has

upheld a finding of no pretense of

justification in a prison killing when

the victim was attacked by surprise and

repeatedly stabbed, when there was no

evidence the victim had engaged in prior

threatening acts. Williamson v. State,

App.-11

511 So.2d 289 (Fla. 1987), cert. denied,

108 S.Ct. 1098 (1988).

In the present case, we find ample

evidence showing that Christian had at

least a "pretense" of moral or legal

justification. As in Banda, this record

discloses at least a colorable claim

that the murder "was motivated out of

self-defense,” although in a form

legally insufficient to serve as a

defense to the crime. Indeed, this

record is replete with unrebutted

evidence of the victim's threats of

violence to Christian and his apparent

inclination to fulfill them. This is

corroborated by the fact that during his

incarceration in Palm Beach County prior

to his transfer to Florida State Prison,

Moore had engaged in more than a hundred

incidents that included several arsons,

attacks on nineteen deputy sheriffs and

App.-12

a nurse, a suicide attempt, and several

attempted escapes. Christian's attack

on Moore was preceded by three weeks of

constant harassment and threats. There

was expert medical testimony that

Moore's actions against Christian

effected a psychological change in

Christian. Prior to the battery by

Moore, he was friendly and outgoing.

Subsequent to it he was withdrawn and

brooding. During the commission of the

homicide fellow prisoners described him

as being in a daze, or acting as though

he was out of it. While this does not

negate his guilt, it is a permissible

additional factor for the jury to

consider when making its recommendation.

Moore's hatred of Christian had begun

with a homicidal attack that would have

succeeded had other inmates not

intervened. The extreme behavior of

App.-13

Moore is only underscored by the fact

that Moore decided to kill defendant

over the loss of two bars of soap in a

wager.

We find the present facts establish a

"pretense" of moral and legal

justification more strongly than those

in Banda. Accordingly, the trial court

erred in finding in aggravation that the

murder was cold, calculated, and

premeditated and without pretense of

legal or moral justification.

Second, Christian argues that

sufficient mitigating evidence existed

to support the jury's recommendation,

notwithstanding the judge's finding to

the contrary. We agree.

Certainly the facts of the murder

fully support a conviction of first-

degree murder. But the facts just

recited, particularly those contained in

App.-14

ee Naa A te Ne a

the prison's own records, bear out and

support the jury's recommendation of

life in this instance. Moore was a

violent man who had attacked Christian

in a homicidal rage and had continued to

make threats up to the time Christian

killed Moore. We cannot say that a jury

would be unreasonable in weighing this

evidence in mitigation and concluding

that death was not the appropriate

penalty.

Accordingly, we vacate the sentence

of death and remand for imposition of

life imprisonment under Tedder v. State,

322 So.2d 908 (Fla. 1975), where we

stated:

In order to sustain a

sentence of death following a

jury recommendation of life,

the facts suggesting a

sentence of death should be

so clear and convincing that

virtually no reasonable

person could differ.

Id. at 910.

App.-15

It is so ordered.

EHRLICH, C.J., and OVERTON, SHAW,

BARKETT, GRIMES and KOGAN, JJ., Concur.

McDONALD, J., Dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED,

DETERMINED.

App.-16

McDONALD, J., dissenting.

Christian and Alfred Moore, inmates

at Florida State Prison, did not get

along with one another. On April 12,

1987, after Christian accused him of

cheating during a card game, Moore hit

Christian in the head with a metal

weight-lifting bar. Three weeks later,

while still under close detention for

the attack on Christian, Moore visited

the infirmary. Christian, knowing that

Moore would be out of his cell,

retrieved a knife which he had

previously hidden. While two unarmed

guards escorted the handcuffed Moore

back to his cell, Christian pushed the

guards aside, chased after Moore who had

started running, caught him, stabbed him

twenty-six times, and pushed him off a

third-floor deck. Moore died of

multiple stab wounds and blunt trauma

App.-17

head injuries. A jury convicted

Christian of first-degree murder and

recommended a sentence of life

imprisonment. Finding four aggravating

factors! and none in mitigation,

however, the trial court, Te a

comprehensive and analytical order,

overrode the jury's recommendation and

sentenced Christian to death.

One of the statutory aggravating

factors is that the homicide "was

committed in a cold, calculated, and

premeditated manner without any pretense

of moral or legal justification."

§921.141 (5) (i), Pla. Stat. (1987).

. Committed by person under sentence of

imprisonment; previous conviction of

violent felony; heinous, atrocious, or

cruel; and cold, calculated, and

premeditated with no pretense of moral

or legal justification. §921.141(5)(a),

(b), (h), (i), Fla.Stat. (1987).

App.-18

Christian argues that his actions did

not rise to the level needed to be found

to be cold, calculated, and

premeditated. In the aiternative he

argues, and the majority agrees, that

even if his actions met the first part

of the statute, he had a pretense of

moral or legal justification for

committing the murder.

Simple premeditation which might be

sufficient to support a conviction of

premeditated first-degree murder is not

sufficient to support the aggravating

circumstance at issue. Jent v. State,

408 So.2d 1024 (Fla. 1981), cert.

denied, 457 U.S. 1111 (1982). Instead,

heightened premeditation, demonstrated

by the method and manner of the killing,

is required. Hamblen v. State, 527

So.2d 800 (Fla. 1988). Murders which

can be characterized as executions fit

App.-19

within that definition. Routly v.

State, 440 So.2d 1257 (Fla. 1983), cert.

denied, 468 U.S. 1220 (1984); McCray v.

State, 416 So.2d 804 (Fla. 1982). This

aggravating factor can be shown by

"advance procurement of a weapon, lack

of provocation, and the appearance of a

killing carried out as a matter of

course." Swafford v. State, 533 So.2d

270, 277 (Fla. 1988), cert. denied, 199

S.Ct. 1578 (1989).

As stated in the sentencing order,

Christian brooded over Moore's attack on

him, secured a knife, knew that Moore

would be handcuffed while outside his

cell,” retrieved his contraband knife

2 Moore was still under close restraint

because of the attack on Christian and

could be outside his locked cell only

when handcuffed and escorted by guards.

Christian, however, like other inmates

not under close restraint, had the run

App.-20

ET

ae as ae

from its hiding place when he knew that

Moore was out of his cell, followed

Moore and the guards upstairs, refused

to heed Moore's cries for mercy and the

guards' orders to stop, stabbed Moore

twenty-six times while chasing him

around the third floor, and, finally,

pushed him off the third-floor deck to

the concrete surface of the first floor.

The record supports these conciusions.

Christian testified that he obtained the

knife for protection. Retrieving the

weapon from its hiding place and

stalking Moore, when he knew Moore would

be out of his cell and, therefore,

accessible, but defenseless because of

(continued)

of the building and could come and go as

he wished.

App.-21

the handcuffs, however, demonstrates an

offensive, rather than a defensive,

motivation. Moreover, although Moore

had verbally abused Christian, due to

his being under close confinement, he

had no present ability to make good any

threats. Rather than provoking the

attack that killed him, Moore tried to

run away from Christian. Two inmates

locked in their third-floor cells within

feet of Christian's attack on Moore

testified on the state's behalf. They

stated that Moore tried to evade

Christian and begged for his life, that

Christian spat in Moore's face before

stabbing him in the eyes, that the

unarmed guards tried to beat Christian

away from Moore with their walkie-

talkie, that Moore was still alive when

App.-22

3 that

Christian stopped stabbing him,

guards could be heard approaching, that

several inmates urged Christian to ease

up because it was obvious that he was

going to push Moore off the third floor,

and that Christian had to lift Moore to

clear a three-inch ledge before shoving

him over the side. The evidence shows

this killing to have been a methodical

execution and that Christian fully

intended to kill, rather than just

injure, Moore. The trial court properly

found Christian's conduct to be cold,

calculated, and premeditated. Thus, the

critical factor is whether Christian had

a pretense of moral or legal

justification.

3

The medical examiner agreed _ and

testified that, in his opinion, Moore

was still alive until he hit the floor.

App.-23

In Cannady v. State, 427 So.2d 723

(Fla. 1983), this Court found that

Cannady had at least a pretense of moral

or legal justification because during

his confessions he repeatedly stated

that he never intended to harm the

victim, whom he shot only after the

victim jumpec at him, and no evidence to

disprove these contentions existed.

Similarly, in Banda v. State, 536 So.2d

221 (Fla. 1988), cert. denied, 109 S.Ct.

1548 (1989), we found a pretense of

justification because the victim's

violent nature and apparent ability to

harm Banda caused a real fear in Banda

that the victim would kill him. On the

other hand, this Court upheld a finding

of no pretense of justification in a

prison killing where the victim engaged

in no threatening acts prior to his

being attacked by surprise and

App.-24

Ce

repeatedly stabbed. Williamson v.

State, 511 So.2d 289 (Fla. 1987), cert.

denied, 108 S.Ct. 1098 (1988). Although

Moore had threatened Christian, he had

no chance to act on those threats due to

his being in close confinement. This is

a distinguishing factor from _ Banda.

Banda was exposed to immediate danger

from his victim. Anticipatory

retaliation when no present danger

existed cannot justify Christian's

actions. The evidence leads to the

conclusion that Moore's being out of his

cell and, therefore, accessible, rather

than Moore's actions or threats,

prompted the immediate attack on him.

In rejecting Christian's pretense of

justification theory the trial court

stated:

At the outset in

consideration of this element

this Court is well aware that

arguments may be made, by

App.-25

some, and in fact were made

by able counsel for’ the

defense in this case, that

this murder somehow must not

fall within the category of

those deserving the death

penalty because of the prior

attack by the victim on the

defendant and also because of

some special consideration

that should be given to

prisoners who perceive their

status somehow threatened if

they do not retaliate. Such

argument and position are

absolutely repugnant to this

Court and cannot be

rationalized by an informed

society that truly wishes to

preserve human life. If the

retribution by defendant is

to be classified as having

any pretense of moral or

legal justification, then the

lives of all prisoners and

others are in jeopardy at the

hands of those so inclined to

vengeance.

agree that some of society's

violent members reside in our prisons,

but to find that Christian had even a

pretense of moral or legal justification

in killing Moore would be to condone the

creation of an open season by inmates on

their fellow inmates with whom they have

had arguments of physical encounters.

App .-26

—— os

Neither do I agree that the trial

court erred in overriding the jury's

recommendation of life imprisonment. A

jury recommendation must be given great

weight under our death penalty statute.

Tedder v. State, 322 So.2d 908 (Fla.

1975). "In order to sustain a sentence

of death following a jury recommendation

of life, the facts suggesting a sentence

of death should be so clear’ and

convincing that virtually no reasonable

person could differ." Id. at 910. If

the jury's recommendation is not based

on valid mitigating circumstances which

can serve as a reasonable basis for that

recommendation, howevel a life

recommendation can be overridden.

Thomas v. State, 456 So.2d 454 (Fia.

1984). See Mills v. State, 476 So.2d

172 (Fla. 1985), cert. denied, 475 U.S.

1031 (1986). In fact, if a death

App.-27

sentence is appropriate, i.e., supported

by aggravating evidence, and "some

matter not reasonably related to a valid

ground of mitigation has swayed the jury

to recommend life, such as_ through

emotional appeal, prejudice, or some

similar impact, it is proper for the

judge to overrule the jury's

recommendation.” Thomas, 456 So.2d at

460.

Christian claims that, because of the

inmate code of justice by which inmates

solve their own problems, the prison

administration's indifference, and

Moore's conduct, the jury

administration's indifference, and

Moore's conduct, the jury reasonably

could have concluded that Christian had

to kill Moore before he killed

Christian. As discussed above,

Christian had no legal or moral

App.-28

a ee

justification for killing Moore.

Allowing inmates to kill one another

because they are inmates makes’ the

application of the death penalty

arbitrary and cannot be a reasonable

basis for a jury's recommending life

imprisonment. Compare Bolender v.

State, 422 So.2d 833 (Fla. 1982) (the

victims' being armed cocaine dealers

does not justify robbing, torturing,

kidnapping, and murdering them), cert.

denied, 461 U.S. 939 (1983). See also

Burch v. State, 522 So.2d 810, 815 (Fla.

1988) (Shaw, J., concurring in part,

dissenting in part).

Citing Lusk v. State, 446 So.2d 1038

(Fla.), cert. denied, 469 U.S. 873

(1984), Christian argues that his death

sentence is disproportionate as another

facet of his claim that the jury's

recommendation should not have been

App.-29

overridden. Lusk, like Christian,

killed a fellow inmate who had

threatened him, and lLusk's jury also

recommended life imprisonment for him.

Because this Court mentioned, 446 So.2d

at 1043, that Lusk committed that murder

while serving three life sentences for

armed robbery and first-degree murder,

Christian urges that Lusk had a

propensity to kill which Christian does

not. Christian admits, however, that he

has a violent background. When he

killed Moore, he was serving a thirty-

year sentence for armed robbery and

aggravated assault. In 1983 he was

convicted of another aggravated assault

while in prison, and had been the

subject of several disciplinary reports,

mostly for fighting. Additionally,

Moore, unlike Lusk's victim, had, due to

being under close confinement, no

App. -30

eer ee aig steak "

present ability to effectuate his

threats.

That we found Lusk deserving of the

death penalty does not mean that

Christian is not so deserving. The

trial court properly found that four

aggravating circumstances had been

established and, after considering all

the mitigating evidence, determined that

it did not outweigh these aggravating

circumstances. The jury could not have

based its recommendation on valid

mitigating considerations. Therefore,

the trial court's sentencing Christian

to death represents a reasoned judgment

based on the circumstances of this

murder and Christian's character, and

the trial court properly overrode the

jury's recommendation.

App.-31

An Appeal from the Circuit Court in and

for Bradford County,

Osee R. Fagan, Judge-Case No. 87-195 CF

Michael E. Alien, Public Defender and

David A. Davis, Assistant Public

Defender, Second Judicial Circuit,

Tallahassee, Florida,

for Appellant

Robert A. Butterworth, Attorney General

and Mark C. Menser, Assistant Attorney

General, Tallahassee, Florida,

for Appellee.

App.-32