Fla. Stat, (1981) - Florida State University College of Law

RPPEAL FffQM THE CIRCUIT COURIT OF THE 

FOURIIH JUD1CIF;L CIRCUIT OF FLLlNDA 

IN AND FOR DUVX COUNTY 

GREENSPAN, GOODSTEIN AND LINK, 

and 

PDEERT J. LJNK 

305 Washington Street 

Jacksonville, Florida 32202 

Attorneys for Appllant

TOPICAL INDEX 

THE 'I!FX?% COURT'S REI;usAI; To XNSTRUCT TEE JUl?Y 

I 

THE LAW OF INDwmm Acr UNDER THE FELoNy-mER IDzlRnw 

PREVEWED THE D m F m EFFECI'IVELY DEFENDING AGAINST 

THE CAPITAL HWCIDES IN aUJS'IS 1 AND I11 OF 'TEE IND1-r 

AND PREWENIED TXE3 JURY FEMN CONSIDmG HIS DEFENSE TO TJ3EE 

CHARCES, IN VIOLaTION OF THE: DEFE"T'S RIQTF M A FAIR 

TRIAL BY AN IMPARTIAL JURY, AND DUE P m S OF LAW, AS 

GUARANTEED BY 'PIE: FIF", SIXTH AND To 

THE U. S. CONSTITUTION AND AIITICLF, I, SFPMONS 9, 16, AND 

22 OF T€E FLORIDA CONSTITUTION. 

I1 

THE TFCLAL COURT E m IN INSWmING THE ?HAT m S 

IS Ncvr A DEFENSE To HmCIDE, WITHOUT FdXWD TO wHE;THER 

THE AcCUSED WAS AN AIDE2l AND ABETTORAS OPPOSED TO A 

PRINCIPAL, AND WITHOUT REGAR0 To WHE;THER THE HOMICIDE Was 

A PRENEDITKED OR A FFWNY MURDER, IN VIOLATION OF THE F!Im 

OF AN ACCLEED TO HAVE THE JURY INSTRU- IN ACCORD WITH HIS 

DEFENSE, AND HIS RIW 'I0 'IME EFFECTIVE ASSISTANCE OF 

COUNSEL, AS BY 'IHE FII;TH, SIXTH, AND € Q m 

AME"s To THE U .S . CY3NSTITUTION AND AFiTICLE I, SECTIONS 

9 AND 16 OF THE ETORDA CONSTITUTION. 

31 

I1 I 

THE TRJXI COURT ERRED IN THE MANNER IT CONDUCTED VOIR DIKE, 

FEBUKING AND REPFE"D1NG lXEE%E COUNSEL IN THE PRFsEINcE 

1 

1 

4 

23 

28

V 

TRIAL COuIiT EXRED IN FAILING TO GRANT A NEW TRJXG WHERE 

IT Was SHm 'DHT THE PIOSMJUTION HAD FNLED TD DISCLOSE 

FAVORABLE EWIDENCE !ID THE DEFENSE, IN VIOLATION OF THE: 

DEE"IXWI"S RIMT To ASSISTANCF, OF COUNSEL AND DUE 

P-S OF LAW, AS GWWNEED BY ZKE FIFTH, SIXTH, AND 

FUJRTJiENTM To THE US. CONSTIWION AND AFTICLE I, 

SECTION 9 AND 16 OF' BE FIOEIA COPJSTITUTION. 48 

VII 

THE TRIAL COURT EFFED IN Pl3WITrING THE PRC6rnRs rn 

REPEATEDLY ADVISE THE JUFIY THAT m- ELAINE P m 

HAD PLEADED GUILTY AND HAD BEEN GIVEN A PLEA BARGarN IN EXCHANGF, FOR HER ~TIMONT mNST THE DEFENaANT, WHERE THE 

cO-DEEF"FwaS NOT (XLCJDAS AWITNFSS DUFCLNG THE TRIAL, IN 

VIOLaTION OF THE -'S DUE PWXESS RIGHT To A FAIR 

TRIAL BY AN IMPARTIAL JuHll aS GUARANTEED BY THE FIFTH, SIXTH, 

AND FOURTEENTH "DENTS TO THE U.S . CJNSTITUTION AND 

ARTXCLE I, SECTIONS 9 AND 16 OF PIE FZORIDA CONSTITUTION. 50 

TEE EVTDENa WaS INSUFFICIEWT 'I0 SUSTAIN A OF 

GUILTY OF FIRST DEGREE MURDEB AS TO COUNT I OF THl3 INDI(2DE"T. 51 

54

X 

XI 

THE TRIAL COURT ERI;LED IN P1"5RMITI'ING THE PmECUITON To 

QuEsTION DEFENSE WIBS RICHARD ELI.WW ABOUT SPECIFIC 

PFXOR CCPJVICTIONS AND QXTCNG THE WITNESS TO CLAIM HIS 

FIFTH PRI-, IN VIOIATION OF ?HE 

DEFE"T'S RIGHT To DUE PROCESS AND A FAIR TRIAL, AS 

GUWPNEED BY 'ME FLFTH, SIXTH AND FOLIREEWH 

aMhaxlIENTS TO THE U.S. CONSTITUTION AND W ICLE I, 

SEKTIONS 9 AND 16 OF THE FiDUDA mNSTITU!I'ION. 59 

XI1 

'IHE TRIAG Couwr F,R€ED IN PERMITI'ING TlE PF!BMIUTOR 

"0 ELICIT FRaM DEFENSE WITNESS KCCHARD EUWaD THAT 

?HE DEFENDNW REMATNED SILENT AND DID NOT DISmS 

HIS CASE WH1I.E IN JAIL AWAITING m, IN VIOLATIQA 

OF QiE PI=, SIXTH, AND F D m 

AMENl%ENTS TO THE 

US. CONSTITUTION AND ARTICLE! I, SECTIONS 9 AND 16 OF 

rn FLORIDA CceJsTITUTIoN. 

TRS& atRT FJ?RF,D IN PEEIEJIITTX PWECUTOR To 

CROSS-EXAMINE THE DEFE"T, OVER OBJECTICPJ, ABOUT THE 

NUMBER OF TOES I3E HAD CONSULTED WITH DEE'ESE CoUrJsEL, 

AND ABOUT THE FACT THp3: HE HAD CONSULW WITH DEFENSE 

COUNSEL DURING A FECES IN ~S-E3IAMLNA'ITON, IN VIOLATION 

QF THE FIFTH, SIx?H, AND lQuREENTH To U.S. 

CONSTITUTION AND ARTICLE I, SmcpS; 9 AND 16 OF ?HE 

FWRIIX CWTITU!EON. 61 

THE COURT EDRED IN DENYING ?HF, D n ' S MDl?IcRJ 

TO SUPPRESS STATEPEWIS, AaMLSSIONS, AND ~ S I O N AND S 

IN PERMITTING THE STATE: TO USE THOSE STATEMENTS I" ITS 

CASE IN MIEF, IN VIOLATION OF THE FIFIH, SIXTH, AND 

FOLRXENTH N E " F S To THE U,S CONSTITUTION AND 

ARTICLF, I, SECTION 9 AND 16 OF THE CONSTITUTTON OF THE 

smm OF FzoRIIxl. 63 

60

UNRELATED O??F'ENSE AS EVIDENCE OF GUILT, AND IN SQ 

INSTRUCTING THE JURY, IN VIWTLQN OF THE m r S 

DUE P-S RIGHT To A FAIR TKUG A$ 

BY THE: 

AMENnMENT TO 'IWE U,S, CONSTITtj'I'Im AND aWT1CI.B 

I, SEEITON 9 OF THE: FLOXDA CDNSTITUTION. 

XVI 

!LIE TRIAL COURT IN PFOHIBITING DEFENSE CXNSEL FaQM 

ASKINI; Smm WITNESS DENISE ZONG ABOUT HER STATUS ON 

PROBATION, IN VIOLATION aF THE -IS RIGIT Kl 

CONFFONTATION AS GIDRPNEXD BY THE SIXTH AND m m 

To THE U.S. CONSTITUTION AND ARI'IClX I, SECTION 

16 OF THE FLDRIDA CONSTITUTION. 

XVII 

THE TRJXL COLJRT! EXRED IN OVE=RUI;ING DEFENSE OI3JEXTIONS 

AND FMLX TO DE- A illIsTRIAL WHEN THE PXEECUTION 

INTRODUCED EVIDENa OF PXOR mSISTEENT STATEMENTS BY 

WImS BILJX LONG BEEQRE THE W I m ' S CREDIl3ILITY HAD 

BEEN ATTACKED, IN VIOLATION OF 8 90.801(2) (b) , FTA. STAT. 

(1981), AND THE DUE PROCESS CIAUSE OF THE FIFTH AND 

To WE US. aXSjTITUTION AND ARTICLE 

I, SEcITON 9 OF ?HE FLORIDA Q3NSTITU". 

XVIII 

THE: TRIAL COURT EDRF,D IN F!EQUIRING THE DEFENSE TO TURN 

OWX TO THE PMECUTION A DEPOSITION OF STATE WITNESS 

B I U LONG, IN I m J X J G CFOSS-EXAMINATIa, AND IN 

PE??MITTING THE PROSECUTOR AN OVERNIGH!f RI;xEsS TO PREP= 

ZHE: WITNESS FOR ADDITIONAL CmS-EXAMINATION, IN VIOLATION; 

OF FIA. R. CRIM. P. 3.220(b) (4) (i) and (iii) AND THE 

DEFENIIANT'S RIGHT OF CONF~TION AND TO !l?HE EFFECTIVE 

ASSISTANCE OF COUNSEL, AS BY THE SIXTH AND 

m- ArmNmmms To THE u.s CONSTIWION AND ARTIcI;E: 

I, SECTION 16 OF THE FLaRIDA CONSTITUTION. 

WION IN LIMINE AND IN DENYING D m ' S REQUEST r;y>R FUNlX 

TO coNI3ucT AN E W I W HEARZNG ON THE MATTER, WHICH RULING 

HAD THE EFFECT OF DENYING THE DEFENXWT HIS RIGHT To BE TRIED 

BY A FAIR AND IMPARTIAL, ,JURY a)NSISTING OF A IRESEXCA!TTTE 

QWSS-SECTION OF THE: m T Y , AND HIS RIQTI' To EQUAL 

PROIECTION OF THE LAW, AS BY 'IHE SIXTH AND 

F'O- AMENDMENTS To THE U,S, UXSTITUTION ANJl affTICLE 

I, SECTIONS 16 AND 22 OF THE: EU3RlIXl aXlSTITUTION. 71 

66 

67 

68 

70

-V- 

72 

73 

73 

84

ACEEY. mm, 

33tlTo~7"T% (Fla. 4th ;D.C.A, 1976) 

ADAPE V. STATE 

nso. (Fla. 1977) 

ALBIXLW v, STATE 

378 So. 2d 1mFla. 2nd D.C.A. 1980) 

?cLmRDv. smm 

41. 1,360. 436 (19041 

ANDm v. STIATE 

2d 5WTFla. 1st D.C.A. 1965) 

AE(IT0bJE v. STATE 

172" 2a(FJa. 1978) 

ZWIWEV. smm 

382. 2dm(Fla, 1980) 

ARP v. STAE 

TAla-2 So. 301 (1893) 

EWXLAY v. FIk3RTDA 

103 S. Ct. m8T983) 

BAw=LAY v. STATE 

343 So. 2d 1266(Fla. 1977) 

EARFIELD v. STATE 

402 So. 2d 3nla. 1981) 

BFXTERV. smm 

294. 2dr(Fla. 4th D.C.A. 1974) 

BENNEITv. STaTE 

316 So. 2d -la. 1975) 

BLUNTV. STATE 

397. 2 d 7 

(Fla. 4th D.C.A. 1981) 

m v . STaTE 

-So. 2 d 4 3 (Fla. 1982) 

BCrWLFS v. STATE 

381. 2dx(Fla. 5th D,C.A. 1980) 

BCrYNTONv. STATE 

2d m(Fla, 1st D,C.A, 19801 

BaOCaGS v. STATE 

347. 2dm(Fla. 3rd D.C.A. 1977) 

. . - . . . . . . . . . 

-vi- 

62 

28 

40 

68 

39 

49 

49 

34 

83 

82 

83 

58 

62 

45 

62 

58 

54 

61

BRlJWN v. smm 

344 So. ~2d 

641 (Fla, 2nd D.C,A, 1977) 

m v . 

m* 

STATE 

2 m 

@'La. 1st D.C,A. 19832 

SFCW v. WX"RI(;HT 

392 So. 2d 1327 (Fla. 1981) 

ENXRENv. STFiTE 

355 So. 2d * r(Fla. 1978) 

BUFWICKv. SSiTE 

408 So. 2d WFla. 1st D.C.A. 1982) 

c.?arERv. snm 

332 So. 2dm(Fla. 2nd D.C.A. 1976) 

c?@TJDv. smTE 

356 So. 2dmFla. 1st D.C.A. 1978) 

CPNTHON v. STATE 

382 So. 2d mFla. 1st D.C.A. 1980) 

CHAPMANV. sTAm 

417 So. 2d 1028(Fla. 3rd D.C.A. 1982) 

mmz v. smTE 


COCHRANV. sTAm 

280 So. 2d mla. 1st D.C.A. 1973) 

mmv. STATE 

418 So. 2 m 

(Fla. 1982) 

-m v. HAMILTON 

445 Pa. 292, 285 A. 2d 172 I 

m m v . smm 

336 So. 2 d m 


CooPERv. sTAm 

376 So. 2dT(Fla. 1st D.C.A. 1979) 

WPERV. smTE 

377 So. 2 d m (Fla. 1980) 

COQPERV. smm 

413 So. 2 d m 

(Fla. 1st D.C.A. 1980) 

-vii- 

69 

32 

73 

28, 30, 31, 32 

80, 83 

62 

40 

47 

32, 33, 36 

40 

46 

47 

39 

66 

77 

43 

54 

43

c?JME3IEV. smm 

345 So. 2 d m 

CURRYV. smTE 

355 So. 2 m 

lJ?NIELs v. STATE 

374 So. 2d m 2 

- 

mm v. ALASKA 

415 U.S. 308 (1974) 

(.Fla. 1977) 

(Fla. 2nd D.C,A. 1978) 

D.C.A. 1979) 

mm v. smm 

90 So. 2d-(Fla. 1956) 

D.M. v. Stat@ 

394 So. 2 d O 

(Fla. 3rd D.C.A. 1981) 

mNAIdxcNV. smm 

369 So. 2d 69ma. 1st D.C.A. 1979) 

- DOWNS v. STATE 

386 So. 2- (Fla. 1980) 

DoyLFl v. OHIO 

426 U.S. 610(1976) 

DTJ"v. STATE 


DYsm v. U.S. 

450 A. 2 d m (D.C. 1982) 

E"Dv. STATE: 

399 So. 2-1362 (Fla. 1981) 

FASENMYEEv. STAm 

383 So. 2d 70-a. 1st D.C.A. 1980) 

FLURIM EaST CQAST RAIDJAY CD. v. HUNT 

322 So. 2d 68 (Fla. 3rd D.C.A. 1975) - 

FLY" v. STATE 

351 So. 2 m 

mmv. sTAm 

335 So. 2dm(Fla. 1976) 

(Fla. 4th D.C.A. 1977) 

GWFORD v. STATE 

387 So. 2d m Fla. 1980) 

- 

GARcmv. smm 

351 So. 2 d m 

(Fla. 3rd D.C,A, 1977) 

GARmrrv, smm 

335 So. 2d 876Fla. 4th D.C.A. 1976) 

-viii- 

54, 55 

67 

68 

68 

51 

53 

39 

77 

60, 61 

38 

47, 63 

28 

55 

56, 57, 58 

61 

59 

82 

62 

54

mm v. u. s. 

425 U.S. 8-76] 

GENE?m TELEpHclNE co. v. w,ALIxE 

417 So. 2d 1022 (Fla. 2nd D.C.A. 1982) 

CIDEON v. b7ADWRIGHT 

372 U. S. 335 (1963) 

GILW v. STATE 

418 So. 2dx(Fla. 1982) 

GlxsMAN v. smTE 

377 So. 2d 2 m a . 2 D.C.A. 1979) 

GC&EZ v. STATE 

415 So. 2m2F(Fla. 3rd D.C.A. 1982) 

mmmv. s m 

405 So. 2d W(F1a. 1981) 

GRANTv. STATE 

194. M612 (Fla. 1967) 

GREENEV. smm 

376 So. 2 dx(Fla. 3rd D.C.A. 1979) 

GEEEN v. smm 

190 So. 2dT(Fla. 2nd D.C.A, 1966) 

GRIBSBY v. MaBw 

637 F. 2d 5 m t h Cir. 1980) 

GRIGSBY v. MABRY 

Case No. Bm-32 (E.D. Ark. filed August 5, 1983) 

GFOEBNEXv. STATF, 

342 So. 2d 9-a. 3rd D.C.A. 1977) 

- HALI, v. STATE 

136 Fla.644, 187 So. 392 (1939) 

HAL;Lv. smTE 

SO. Z d l 9 (Fla. 1981) 

HApIuzToNv, smTE 

129 Fla. 2 1 9 m So. 89 (1937) 

i?vwloNv. STATE 

394 So. 2dr(Fla. 1st. D.C.A. 1980) 

ElARRss v, smm 

mso. 

2dm(c&a. 3rd D.C.A. 1982) 

J%WKINS v. STATE 

2d 44 (Fla. 1983) 

-ix- 

62 

57 

62 

84 

47 

46 

33, 80, 83 

46 

40 

39, 67 

72 

72 

40, 45 

32 

75 

57 

43, 67 

46, 48 

81, 83

i%W'HW v. STATE 

j// So'.' 2d 7807FlIa. 1st D.C.A. 1979) 

m v . STATE 

62so. =@la. 1952) 

HOLTONv, smrE 

m a . 65,yYo 244 (1924) 

-v, smm 

XtOXo. 2-(4 D.C.A. 1983) 

HUNT v. STATE: 

XETSo. Z 3T1 (Fla. 2nd D.C.A. 1983) 

JacKsONv. STATE 

412 So. 2d 3nla. 3rd D.C.A. 1982) 

JACKSONv. STATE 

TTEK 2d 151a. 3rd D.C.A. 1982). 

JXKSOJSlv. STATE 

SS8 S.W. 2-( IQ. 1977) 

JACOBS v. STATE 

3YE3. 2 dT(Fla. 1981) 

JACOBS v. STATE 

3Y6TE. 2dTll3 (Fla. 1981) 

JENKINS v. smm 

I// so. 2d m l a . 3rd D.C.A. 1965) 

J. 3. v. STATE 

408 So. 2- (Fla. 3rd D.C.A. 1981) 

JOHNSON v. STATE 

88 Fla. 4 6 1 3 So. 549 (1924) 

JcrpJEs v. STATE 

346 So. 2 m 

(Fla. 2nd D.C.A. 1977) 

Kw?E!l?v. STATE 

371. 2 d m (Fla. 1979) 

KELGwv. THmRs 

287 So. 2dmFla. 

KEc;LYv. Sam 

m a . 3-26 So. 

4th D.C.A. 1974) 

366 (1930) 

1979 ) 

-X- 

57 

51 

53 

47 

40 

32 

48 

34 

81-2, 83 

50 

67 

53 

46 

38-9 

65, 66 

80, 83 

69 

53 

55

KCONTZ v. STATJ3 

204 SO. 2dx(F1 , 2nd D.C,A, 1967) 

K.W.U. v. STATE 

367 So. 2d-&F(Fla. 3rd D.C.A. 1979) 

v. W E Z 

353 So. 2d 1257 (Fla. 3rd D.C.A. 1978) 

- LAMB v. STATE 

357 So. 2 d 7 (Fla. 2nd D.CA 1978) 

L74vmiE v, smTE 

349 So, 2d178Fla. 1st D.C.A, 1977) 

Lp;yTHEv. STATE 

330 So. 2dn(Fla. 3rd D.C.A. 1976) 

LM>NRRDv* smTE 

386 So. 2dnla. 2 D.C.A. 1980) 

LEWIS v. STATE 

335 So. 2 m 

ms 


v. smm 

398 So. 2 m (Fla. 1981) 

LIWEYV. smTE 

350 So. 2d 8mla. 2nd D.C.A. 1977) 

WNG v. STATE _I_ 

407 So. 2d18 (Fla. 2nd D.C.A, 1981) 

PkARIFlURv. COOK 

99 So. 2d 5 6ma. 1957) 

v. STATE 

351 So. 2d 9mla. 1977) 

WRIDE v. STATE 

2d 567Fla. 1st D.C.A. 1976) 

~ m v STATE . 

421 So. 2d l07ma. 1982) 

McCXKIJ;I; v. STATE 

344' SQ, 2d 12mla. 1977) 

MccJ;Eu;AN v. STATE 

359 So. 2d 86-a. 1st D,C.A, 1978) 

McDWFIE v. STATE 

341 So. 2d 8mla. 2nd D.C,A, 19771 

MCKNIGH!rV. smTE 

390 So, 2d 4851a. 4th D.C.A, 1980) 

-32 

53 

57 

69 

55 

32 

59 

68 

77 

54 

39 

59 

51 

67 

81, 83 

83 

55 

68 

68

MCMILLANV. smm 

4119 So. 2d 1-la. 3rd D.C.A, 1982) 

McW v, STATE 

383. (Fla. 2nd D.CA 1980) 

rQGGmDV” STATE 

399. 2d m[Fla. 1981) 

MALIm v. smm 

-3-82- 2 d m (Fla. 1979) 

MATERA v. STATE 

m. 2 dm(Fla. 3rd D.C.A. 1971) 

mov. smm 

710. 2- (Fla. 19541 

ME?ADEv. STATF, 

~ m o 2-1 . (Fla. 4th D.C.A. 1983) 

I4E”mZ v. STATE 

368 So. 2d l mla. 1979) 

MESSERV. smTE 

330 So. am(Fla. 1976) 

MXCLEX v. STATE 

155 Fla. 5-0 So. 2d 798 (1945) 

WDY v. STATl3 

403 So. 2d 989 (Fla. 1982) 

mDY v, STATE 

418 So. 2- (Fla. 1982) 

- 

mmv. smm 

186 So. 2d56Fla. 3rd D.C.A. 1966) 

mmv. smm 

mso. 2- (Fla. ,5th D.C.A. 1980) 

MORRIS v. STATE 

m a . 8-30 So. 582 (1930) 

NEAFIT v. STATE 

384 So, 2- (Fla, 1980) 

NETlTEi v. sTAm 

2d 85”(Fla. 1st D.C.A, 1982) 

-xii- 

46 

69 

77 

83, a4 

48 

51, 53 

45 

77 

82 

62, 64, 65, 66 

31 

75 

43 

50 

43 

70 

28 

83 

72

0 

Noms v. STATE 

ZERESb. 2dTET(Fla. 1983) 

("S v. STATE 

77350. 2Z-788 (Fla. 4t?~ D,C,A. 1973) 

Pmv. smm 

3FOTo. 2a-'T307 (Fla. 2nd D,C.A, 1978) 38, 39 

PARISEv. STATE 

320 So. 2dm(Fla. 4th D.C.A. 1975) 43 

PEEK v. smm 

395 So. 2d 492 (Fla. 1981) 

PEDPLEV. K A m 

152 Cal. 331, 92 P. 861 (Sup. Ct. 1907) 

PEOPLE v. m G E 

212 fich. 601, 180 N.W. 418 (.1920) 33 

l?EOPLE v. MORAN 

39 Cal. App. 3d 398, 114 Cal. Fpx. 413 (19742 

PrnPLE v. P m o 

239 N.Y. 416, 146 N.E. 646 (1925) 34 

PEDPLEV. mm 

103 Mi&. 459, 61 N.W. 861 (1895) 

PEOPLE v. WOOD 

8 N.Y. 2d 48, 201 N.Y.S. 2d 328, 167 N.E. 2d 736 (Ct. mp. 1960) 28 

F!EREZ v. STXIX 

371 So. 2d 714 (Fla. 2nd D.C.A. 1979) 69 

PEWCINS v. smm 

349 So. 2d 776 (Fla. 2nd D.C.A. 1977) 40 

P-ONv. SQWE, 

376 So. 2d 1230 (Fla. 4th D.C.A. 1979) 

PHIF;LDS v. STATE 

350 So. 2d 837 (Fla. 1st D.C.A. 1977) 39 

PIW v. smTE 


- POEv. STAT 

431 So. 2d 266 (Fla. 5th D.C.A. 1983) 55 

FQPE v. STATE 1 

84 Fla. 428, 94 SO. 865 (1922) 

EmTlmv. STAF 

347 So. 2d 449 (Fla. 3rd D.C,A. 1977) 

83 

67 

7.6 

28 

34 

34 

45, 48 

48 

28 

46

0 

PRamCE v. STATE 

337 So, 2d 7 n l a . 19761 

REEDV. smTE 

=So. 2 d 2 (Fla. 1st D.C.A. 19'76) 

MODE ISLAND V. I"Is 

100 S. Ct. 1682 (L980) 

RIC€IARXONv. S~~ 


mc3mmDv. STATE 

387 So. 2d 4mla. 5 D.C.A. 1980) 

mmv. sTAm 

366 50. 2m(Fla. 1979) 

RIZZOLO v. -rn 

126 Pa. 54, 17 A. 520 (1889) 

RcmEv. smm 

3260. 2- (Fla. 2nd D.C.A. 1976) 

RMVIANI: v. STATE 

2dx(Fla. 3rd D.C.A. 1983) 

m 1 v. STATE 

334 So. m 6 


suvIMc%Js v. STATE 

2d 316Fla. 1982) 

SLMPSONv. STATE 

352 So. 2d m Fla. 1st D.C.A. 1977) 

SIMPSON v. smm 

2d m Fla. 1982) 

sm v. STATE 

SO. m 7 

(Fla. 3rd D.C.A. 1979) 

sIAmv. STATE 

316. 2dx(Fla. 19751 

V. STATE: 

253. 2 m 

(Fla. lst D,C.A. 1971) 

STZWGEX v. STATE 

3 7 2 m So. 73 (I927) 

-xiv- 

46 

62 

76 

45, 47 

65, 66 

54, 55 

47 

72 

34 

39 

47 

69 

76 

47 

62 

46 

81, 82, a3 

43 

56, 57

STA" v. STATE 

2d761(.Fla. 3rd DX, 

STATE v. CLAY 

268.W. TIma 1935) 

STAT% v. REJB 

3410. 2d 348 (La. 1977) 

STEINHORST v. STAm 

412 So. 2d 332- 1982) 

smmv. smm 

397 So. 2d 903 (Fla, 1981) 

1977) 

STRIPLINGv. S'IIATE: 


TKfWRv. STATE 

294 So. 2d=(Fla. 1974) 

!lEDDERv. STATE 


TELFAIRv. STaTE 

56 Fla. 104,470. 863 (1908) 

T H W v. STATE 


TORRENCE: v. STATE 

430 So. 2d 489 (Fla. 1st D.C.A. 1983) 

TRAINERV. smm 

346 So. 2d 1081 (Fla. 1st D.C.A. 1977) 

u. s. v. AGm 

427 U.S. 971976) 

u. s. v. €€ALE 

422 US. 171 (-1975) 

VAN (aT.J.m v. smm 


WHI"v. STATE 

432 So. 2d 44 (.Fla.1983) 

- WEISS v. smm 

341 So. 2d 528 (Fla, 3rd D.C.A. 1977) 

-xv- 

40 

28 

34 

34 .. 

34 

76 

40 

58 I 

81 , 

77 I 

68 

50 

61 

69 

49 

62 

83 

83 

60, 61, 63 

69 

83 

61, 63

mmv, STATE 

2d =la. 1st D.C.A, 1982). 

WHIrnV. smm 

2d m Fla. 1978) 

WIrnXV. smTE 

367. 2 d m 


WILLLAm v. smm 

110 So. 2d 6mla. 1959) 

WTTT*TqMS V. STAm 

3136 So. 2d 5mla. 1980) 

WTmNSKY v. smm 

360 So. 2d 76-a. 1978) 

WIISONV. smm 

-. 2dr(Fla. 1974) 

wmv. smm 

mso. 2 d m (Fla. 1st D.C.A. 1981) 

wT?T v. STAm 

-So. 2 d 4 (Fla. 3rd D.C.A. 1982) 

WRIGHT v. STATE 

3-48. 2d*mFla. 1st D.C.A. 1977) 

WRIGHT v. SWTE 

402. 2dw(Fla. 3rd D.C.A. 1981) 

Statutes 

i?! 90.609 Fla. Stat. (1981) 

90.610(2) Fla. Stat. (1981) 

8 90.801(21 (b) Fla. Stat. (1981) 

921.141 Fla. Stat. (1981) 

921.141(5) (b) Fla. Stat. (1981) 

921.141 (5) (c) Fla. Stat. (1981) 

3 921.141(5) (d) Fla. Stat. (1981) 

921.141(5) (e) Fla. Stat, (1981) 

§ 921.141(5) (f) Fla. Stat. (.1981) 

921.141(.5) Chl Fla. Stat. (19812 

921,141(5) (1) Fla. Stat. (1981) 

5 921.141 (61 (b) Fla. Stat. (1981) 

8 921,141(6) (f) Fla. Stat. (19811 

-mi- 

84 

46 

69 

54 

38, 39 

83 

60, 62 

45 

55 

40 

53 

32, 33 

56 

59 

70 

72 

73 

73 

73 

73 

73 

73 

73 

73 

73

921.141 (6) (e) Fla. Stat. (1981) 

5 921.141 (6) (d) Fla. Stat. (1981) 

5 921.141 (6) (9) Fla. Stat, (1981) 

922.10 Fla, Stat. 

bles of Court 

Fla. R. aim. P. 3.220 (a) (-1) (i) 

Fla. R. Crh. P. 3.220 (b) (4) (i). 

Fla. R. Crh. P. 2.330 (b) (4) (iii) 

%f erence Materials 

Webstex's New Collegiate Dictionary, C & C Mxriam Co. 

(8th Ed. 1980) 

-xvii- 

73 

73 

73 

73 

54 

70 

70 

40

0 

INTRODUCTION 

The appellant, Fbbert lacy Parker, was the defendant in the trial court, 

the Circuit Court of the Fourth Judicial Circuit of Florida, in and for mval 

coun"cy, and the appellee, the State of Florida, was the prosecution. In this 

brief, all parties w ill be referred to as they stocd in the trial court, 

qhasis is supplied unless othexwise indicated. 

The symbol "R. 'I Shall 

designate the three yolums labeled 'Transcript of kmrd" The symbol "T. 'I 

shall designate the stencgraphic transcript of in-court proceedings. 

STATEMENT QF CASE 

Chl Febyuary 25, 1982, an indictment charging the defendant with two 

counts of first degree murder in the deaths of Richard Padgett (Count I) and 

Nancy Sheppard (Count 11) was filed in the Circuit CDwt of mval County. 

(R. 3-5) 

At arraignment on Februaxy 26, 1982, the Public Defender was appointed 

to represent the defendaht; counsel stood mute and a plea of not guilty was 

entered by the court on the defendant's behalf. (T. 6-8) 

QI rjhrch 3, 1982, the defendant filed his Demand for Discovery, (R. 7-8); 

Wtion for Statanent of Particulars (R. 9-10); rJbtion to Dismiss Indictmnt or 

to Declare that Death is not a Possible Penalty (R. 11-12); Mtion to kclare 

that Death is not a Possible Penalty (E. 16-31); and Fbtion for Production of 

Fayorable Evidence (R. 44-45). 

rvbtion to Dismiss Indicrtment or to Declare that Death is not a possible Penalty 

(R. 82; T, 42-43) and the &tion to Declare that Death is not a mssible Penalty 

(R. 84, T. 35-37). The Wtion for Production of Favorable Evidence was granted 

after argument on April 2, 1982. (R. 88, T. 90-92). 

On April 2, 1982, the lower court denied the 

01 March 30, 1982, the defendant filed his Wtion in Limine (R. 57), 

Pbtion to Vacate Death Pmqlty (R. 61-67), Motion to Declare Section 922.10 

Florida Statutes kconstitutional (R. 68-70), I-btion for Individual and 

Page -1- 

All

e 

Sequestered Voir Dire (R. 71-75), lbtion to kclare Florida Statute 921.141 

Lhconstitutional (R. 77-79), and mtion for Pdditional Pererptory Challenges 

(R. 8-81). 

Q-I April 2, 1982, after hearing oral argumnt, the lwer court 

denied the Pbtion in Limine (R. 89, T. 43-51), the Motion to Vacate the Death 

Penalty (R. 90, T. 58-77) I the Mtion to Declare Section 922.10 Florida Statutes 

Unconstitutional (R. 91, T. 77-78), the mtion to Declare Florida Statute 921.141 

Lhmnstituticmal (R. 94, T. 51-58), and the kbtion for Individual and Sequestered 

Voir Dire (R. 92, T. 78-83). Ruling on the Fbtion for Additional Perenptoxy 

challenges was resewed on April 2, 1982 (R. 83-64). 

Cn April 2, 1982, the defendant filed his Mtion for Discovery of 

Prosemtorial Investigations of Prospsctive Jurors, or for funds to Conduct a 

Similar Investigation (R. 95). This ration was denied after a,rgmxmt on April 

23, 1982. (R. 110, T. 130-134). 

0-1 April 23, 1982, the lawer court Wed pertinent partions of the 

defendantus previously filed mtion for Statmt of Particulars. (R. 109, T. 

117-126). 

?he defendant filed his btion to Suppress Statements, Admission, and 

bnfessions 031 May 18, 1982 (R. 125),an evidentiary hearing on the motion was 

conducted on June 25, 1982, and the lower court denied the mtion. CR. 152, T. 

194-217). 

Gn May 20, 1982, an d& indictment was filed, charging the defendant 

with three counts of first degree murder concerning the deaths of Richard Padgett 

(aunt I,) Nancy Sheppard (Count 11), and Jody mwn Ihltm (Count 'ZII). (R. 133). 

At his arraignrent on May 21, 1982,- defendant stood mute and a plea of not 

guilty was entered on his behalf. (T. 160). 

On M menkr 2, 1982, the defendant filed his mtim to Adopt Argumnts 

and Previously Heard Ibthns to Apply to cbunt I11 of the Indictnmt (R. 240). 

M s mtian was granted on January 19, 1983 (R. 255, T. 276-280). 

QI December 22, 1982, the defendant filed his Pbtion in W e 

Page -2- 

RE: Evidence

of Other Crbs, Wrongs, or Acts. (R. 247). This mtion was denied after 

hearing on Januaq 19, 1983. (R. 256, T. 284-297). 

Ca February 28, 1983, prior to Voh Dire, the defendant present& his 

Wtion for Qlange of Venue; the lower court announced that ruling on the mtion 

muld be reserved while an attempt was made at jury selection. (R. 275, T. 341- 

344). The defendant also renewed his mtion for Individual and Sequestered Voir 

Dire, mich was again denied (T. 348-3481, and his lbtion for Mditional 

Peraptmy Challenges, which was granted to the extent that the state and defense 

were given 15 perenptory challenges. (T. 354-356). An oral Wtion in Iihine was 

made relating to the Fifth Wtice of ;tntent to Offer Evidence of other Crims, 

Wrongs, or &ts filed by the prosecution. (R. 273); the mtion was denied. 

(T. 350-354) 

Jury selection began on Feburq 28, 1983 and continued through Mar& 1, 

1983, at which tiire the defendant renewed his mtion relating to jury selection, 

for change of mue, and his objections to the nwmer in which voir dire had 

been conducted. (T. 871-2), The trial began on March 1, 1983, before the 

Homrable R. Hudson Olliff, Judge of the Circuit Cburt of the Fourth Judicial 

Circuit of Florida in and for ma1 County. (T. 874-8881, On March 9, 1983, 

the jury returned a verdict of guilty as charged as to Counts I and 11, and 

guilty of third degree murder as to aunt 111, (R. 409-411, T. 2307). 

Ch Mch 14, 1983, the capital sentencing hearing was conducted. (T. 2313- 

2515). The jury returned with a verdict of life bprismnt as to both counts. 

(R. 434-435, T. 2516-2517). The lmer court ordered a Re-Sentace Investigation. 

01 Wch 22, 1983, the defendant filed his Bbtion for Judgment of 

kquittal (R. 439) and his Wtion for New Trial (R. 440). Both mtions were 

denied by the 1-r court on April 29, 1983 (R. 467-468, T. 2519-25261, 

On April 26, 1983, the defendant filed his &jections and Exceptions to 

P.S.I. (R. 448). On April 29, 1983, the defendant filed his Awmdmnt to kbtion 

for New Trial (R. 464). This mtim was also denied on April 29, 1983 (R. 469, 

Page -3-

T. 2526-2530). 

QI April 29, 1983, the lower court sentenced the defendant to life 

imprisomt as ta Count I, Bath as 4x1 Count 11, and 15 years inprisommt as 

to Count 111, all sentences to run consecutively. (R, 470-475, 476-509, T. 

2577-2578). 

A notice of appeal was b l y 

STATE" OF ?HE FACIS 

At trial, the following evidence was presented: 

filed. (R. 514). This appeal follows. 

On the mmkg of Friday, February 5, 1982, the defendant asked Paorris 

Johnson and Richard Padgett, to caw to his trailer tm sand and paint a pick-up 

truck that belonged to Charlie Brawn. (T. 1125, 1815-1816). The defendant told 

than that he wuld give them "TI' IT. 1125) or that Charlie Brown would give 

thesn sc~ne "TI' to get high on. IT. 1815-1816). 

VCP", "T", and "angel dust". CT. 1811-1812). Johnson and Padgett agreed, 

and & deferdant drove thern over to the trailer in Charlie Brown's truck. 

(T. 1125, 1816). 

Phencycladine is cmnly called 

The trailer belonged to EZaine Parker. (T. 1809). Elah Parker was 

the defendant's ex-wife; they wre divorced twice but had been living together in 

her trailer With their two children for almost a year. (T. 1805-1806) I 

defendant had been selling T for three or four mnths; his supplier was Charlie 

&own. (T. 1811-1812). After Johnson, Padgett, and the defendant man wmk On 

the truck, Tbrmy Groover cam over in his sister's car to do s m 

it. IT, 1125-1126, 1816). Charlie B m 

and another acquaintance, David 

body work on 

N33mald, arrived later and left with the defendant to get everyone scanething to 

eat, (T. 1140, 1816-1817). 

That mdng, the defmdant had given a gram of T to Tbmy Grmver. (T. 1817). 

GKOOVW was going to sell the T at a profit and 

Sale, keeping the profit for hjmself. (T. 1813-1814). 

gone, mver offered to get Padgett and Johnson "high" if they had sane I h r k s ' ' . 

Page -4- 

The 

pay the defendant after the 

While everyone else was

0 

(T. 1128-1129).crooVer said nothing about charging Padgett or Johnson for the 

drugs, and they as- it was a free "turrn-ont'. (T. 1140). After they injected 

the drugs and "got high", the defendant retuned with Brown and McIhnald. (T.1817). 

When the defendant returned, he b em upset at Gracsver for getting eveqone 

too high to wrk on the truck, and was also concerned that Groover wuld not be 

able ta pay him for the T. (T. 1817). 

The defendant told G r m 

he was going to "kick his ass" or "get straight 

with him''. (T. ll41). The defendant was not the least bit angry at Johnson or 

Padgett. (T. 1141). 

the T he got for sanding and painting the truck in exchange for the turn-on, 

and said that he wuld mtC?roover at a bar called The Sugar Shack that night, 

(T. 1141). 

Padgett told Groover that he muld give him half a gram of 

Grmver's sister telephonedihrih6Z(aw and QnmW B e 

EbDUk 

5:30 P.M. (T. 1817-1818), After Gmver left, Johnson and Padgett were paid 

their T (T, 1130-1131), apparently getting it from Charlie Brmwn. (T. 1928). 

Qmwx told the defendant that he still had "three quarter sacks" that he was 

going to sell that night, and that he muld have his mney for him. (T. 1817). 

Just as the work was being finished on the truck, the defendant's cousin, 

Brother Caps, and another acquaintance, Michael Green, came to the Parker trailer. 

(T. 1132, 1163, 1818). 

(T. 1165, 1818). 

purdased in the past (T. 1165); the defadant testified that Green traded the 

gun for a ten dollar bag of T that Green "snorted" that evening. (T. 1818- 

1819). 

Flriday night. (T. 1207). 

Green gave a .22 caliber pistol to the defendant. 

Green testified he owed the defendant $30.00 for T he had 

Green did adrrcit that he was "pretty sure" he had gotten high on T that 

Bringing the pistol to the defendant as a trade was 

Green's idea; the defendant had not asked him for a gun. (a. 1199, 1818-1819). 

'Ihe gun was in poor working order. (T. 1197-8, 1819). 

Cn Saturday, Green and the defendant drove to the hoarre of Billy Long. 

0 (T. 1182, 1825). "my Grmver lived in the house with Long and Ung's mther 

as a guest; he paid 120 rent. (T. 1334-1335). 

Page -5- 

When Green and the defendant

a 

arrived at Long's house, they saw long and Groover CCBning out the door. IT. 1825). 

&cover had a shotgun in his hands. (T. 1212, 1825). 

fm his job that day, (T. 1333-1334). 

the day trying to collect mney that was CJWed to them for drugs they had sold. IT. 

1361). 

to obtain payrent. (T. 1378). 

Long had just been fired 

Gmver and Long were going to spend 

Grawer and Long took the &otgun along ta use as a "good persuader" 

The defendant asked Gm0ve.r if Groovex: had the mney he wed the defendant, 

and Groover told the defendant that he did not, but he was going to get it. 

(T. 1825). 

collateral until he could pay the defendant in cash (T. 1826). 

had prevbusly accepted the s m 

cross as collateral for one of Billy Long's 

debts, and had returned it to Billy when Billy had given him the mney (T. 1826). 

The defendant did tell (;roover he was going to "hang his ass" if he didn't cane 

up with the mney (T, 1827). 

and Padgett, and Green told him they were probably over at Johnson's house. 

(T. 1183). 

Groover gave the defendant a gold cross and chain to hold as 

The defendant 

Gmover asked Green where he could find Johnson 

Long drove @mover in long's mther's car to visit four different people 

who wed him drug mney, including Wmis Johnson. (T. 1361-1378). 

&brris' brother, told Long and &cover that Mxris and Richard Padgett had gone 

fishing. (T. 1685). 

four quarter sacks of T, and that he was going to get his mney "one way or the 

other". (T. 1686-1687). 

Wayne Johnson, 

Groover told Wayne that mrris and Padgett wed him for 

Wayne Johnson testified that Grmver had a loaded shotgun 

held between his legs, sitting in the car with Ung, when he made those statarmts. 

(T. 1685-1686). Long and Graver were unable to find Johnson and Padgett; they 

returned to Long's house, ate dinner, and went to The Sugar Shack, (T. 1382-1383). 

Joan Bennett testified that she saw the defendant, FJaine Parker, Billy 

Long and Tbwry Groover at The Sugar Shack between 6:OO and 8:OQ P.M. on 

Saturday night. (T. 1533-1534). 

Bennett claA she heard the defendant tell 

the others that he was tired of people awing him mney for drugs, and that he was 

Page -6-

0 

going to kill "the mther fucker", (T. 15061, while the otJxrs sat around and 

laughed. (21. 1534-1535). bng, hmeva, testified that he and Grmver were at 

his house frm 5:OO to 8:OO Saturday evening, (T. 1383-13841, that he and Groover 

were not at the bar with the defmdant or Elaine Parker (T. 1384) and that he 

did not see Joan Bennett there. (T. 1386-7) . The defendant, Michael Green, and 

Jerry Bwuce, said that Green, the defendant, and Elaine Parker, rent to Jerry 

Bmce's house for an oyster mast, (T. 1183, 1703-1704, 1827-18281, not to ?he 

Sugar Shack. (T. 1831). 

Richard Padgett and Nancy Shepard went to The Sugar Shack and mt Billy 

Long and T b q Grmver. (T. 1245-1246). long was driving his mother's car, and 

was asked by Grmver, Padgett and She@ to take them to Parker's trailer to 

get a chain to pull out a car that was stuck outside The Sugar Shack. (T. 1387). 

Long agreed, and let Grmver drive his car to the Parkerst trailer. (T. 1390). 

Grover had not forced Padgett to go with them. (T. 1390). At the trailer, 

the defendant and Padgettmt outside together, leaving the others inside. 

(T. 1390). The defendant had the pistol Michael Green had given him in his 

pants. (T. 1832). Long testified that he heard a gunshot outside and saw the 

defendant putting a gun in his pants when he and Padgett cam inside. (T. 1391). 

The defendant testified that he did not fire the gun or threaten Padgettwith 

it. (T. 1832-1833). 

mney. (T. 1832-1833). 

was just "turning him on" to the T, but that he would "straighten everything up" 

With Groover. (T. 1832). 

He was not upset with Padgett; Padgett did not owe him any 

Padgett told the defendant that he had thought Grower 

When they came back into the Wailex, Padgett told Parker that he muld 

"get it straightened out'', (T. 1391-1392), and the defendant told Padgett that 

"everything was all right". (T. 1392). Padgett was not upset at all when he cam 

inside (T. 1393, 1834). Padgett used the telephone at the trailer (T. 1392), 

and then everyone left b go to The Sugar Shack to try to pull the car out. 

(T. 1833). Ung drove Padgett and Sheppard in his mther's car, and Elahe 

-. ...... .. . . __ . 

Page -7-

Parker drove Groover, the defendant, and the defendant's son in Elaine's car. 

(T. 1392, 1833-1834). 

Michael Green had given him in his pants because he had had trouble in the bar 

the night before. (T. 1834). 

The defendant was tm drunk to drive; he still had the gun 

In mng's car, Padgett was not upset or concerned about anything, but 

Sheppard offered her ring to Padgett to give to Grmver for the mney he wed 

Groover. (T. 1248-1249). 

of. (T. 1249, 1394). When they arrived at The Sugar Shack, the car that had 

been stuck was gone. (T. 1835). 

go with him to get the mney that he owed him. (T. 1835). Grmver asked Long to 

take Sheppard hare (T. 1249) and Padgett told her that it would be all right for 

Long to take her. (T. 1395, 1836). Padgett then asked the defendant and Elaine 

Parker if they would take him and Groover around to a few bars to see if he 

could find Charlie B m . (T. 1836). Long proceeded to take Sheppard hare in his 

mther's car, and did mt re-join Groover until after 6:30 A.M. on Sunday, 

February 7, 1982. (T. 1250-1252). 

Padgett told her not to w ~rry, that he had it taken care 

Graver then told Padgett that Padgett should 

Elaine Parker drove the defendant, Padgett and Wver fran bar to bar, 

looking for Charlie Brm. (T. 1836). 

and were drinking as they went from place to place (T. 1837). They found 

Charlie Brm in the parking lot of a lounge and called him over to the car. 

(T. 1837). 

Padgett asked B m 

They had a cooler of beer in the car, 

if he had sane T that he auld give to Grwver, 

or if he could get $50.00 from him to pay Groover. (T. 1837). 

B r a told 

Padgett that he had no T right Ulen,and refused to give Padgett mney because 

Padgett already awed him $100.00. (T. 1837). The defendant pulled up his shirt, 

exposing the pistol still stuck in his pants, and told B r m he would "just 

take care of it for you, if you want me to". (T. 1837). This was intended as a 

joke, not as a threat to Padgett, and everyone laughed alsout,it (T. 1838). 

then said the he muld "square up" with Grmver ~1. the T that Padgett had 

gotten from him on the following day. (T. 1838). The defendant assumed that 

Page -8- 

B m

this would alleviate any problem betwen Padgett and &cover, (T. 18381, but 

they continued to argue about mey. 

Elah Parker drove them all to the defendant's mther's how, where 

they dropped off the defmdant!s son. (T. 1839). 

he saw the gun. (T. 1838-1839) 

house, the defendant left the gun in the car between the two front seats. 

(T. 1839). 

The boy had gotten upset when 

When hi3 tmk his son to his mt-her's 

When he got back in the car, Gmover and Padgett were starting to 

fight, so the defendant told Elaine to drive across the street to his parents' 

junkyard where they could fight if they wanted to. (T. 1839-1840). Groover 

and Padgett got out of the car in the junkyard and started fighting. (T. 1840) - 

When Grmver started beating on Padgettwith saw brass knuckles, the defendant 

broke up the fight because he was afraid Padgett would get hurt. (T. 1840-1841). 

The fight occurred outside the haw of Carl Barton, who lived in a 

trailer in the junkyard. (T. 1457-1458). Barton heard the noise and, looking 

out his kitchen window, saw Graver standing over: Padgett, with the defendant 

and Elaine Parker standing s m 

eight to ten feet may. (T. 1468-1469). 

was asking Gmover to leave hjm alone, and told him he muld get him the mney 

by Sunday or lbnday mrning, by 9 o'clock. (T. 1469) . The defendant knocked 

on Barton's door and asked if they could care in. (T. 1469, 1841-1842). 

Barton let them in, the defadant asked for a washcloth so he could clean up 

Padgett. (T. 1470, 1842). Padgett was bleeding, (T, 1461, 1842), and the 

defendant wanted to see if he was hurt badly. (T. 1842). Groaver continued to 

argue with Padgett even while Padgett was cleaning himself up IT, 1470, 1842). 

Wing the arqumsnt, Wver said sumthing to Padgett about, "That's all right, 

I w ill get rid of you anyway". (T.1464). 

shirt and med him for the shirt, and Padgett told him that he wuJ+d take care 

of that problem, also. (T. 1470, 1842). hhen Padgett got though cleaning up, 

they all started to leave Barton's trailer. (T. 1462). 

the door first. (T. 1470) , 

Padgett 

When 

Groover told Padgett that he tore his 

The defendant walked out 

As they were leaving, W ver said, "Give me the gun". 

Page -9-

(T. 1470-1471). 

he obtained it. (T. 1463). 

kill him right there. (T. 1463-1464). The defendant and Elaine Parker were 

already out the door when this was said, (T. 1463-1464, 1473), and did not 

hear the threat. (T. 1842-1843). 

as he was leaving. (T. 1472-1473). 

pistol, (T. 1471). 

Barton saw a gun in Groover's hand, but did not see frm where 

Groove3: also told Padgett that if he ran, he wuld 

Groover was holding the gun down at his side 

'xhe gun looked to Barton like a .22 target 

The defendant thought the gun was still out in Elaine's car (T. 1841); 

he did not give it to CroOver when they were inside the trailer. (T. 1842, 

1934-1935). 

the weapn so that he muld not have been able to see it on the defendant's 

body. (T. 1471-1472). F,laine Parker, hwrJever, was carrying a large purse with 

her when she came into Barton's trailer. (T. 1472). They all left in Elaine's 

car. (T. 1464). Barton did not call the police because he did not really 

belie that Groover was going to kill Padgett; he thought it was "a hoax, a 

scare"'. (T. 1473). 

Carl Barton testified that the defendant could not have concealed 

When they left the junkyard, Elaine was driving her car. (21. 1844). 

&cover and Padgettwere in the back seat. (T. 1844). Grmver started saying 

that they should not take Padgett here and drop him off because he had gotten 

in a fight with Padgett tvm or thee weeks earlier, and that Padgett's 

brothers and cousins had jmpd on Groover and beaten him up. CT. 1843) 

@cover th@.t-~ suggested that they take Padgett sanzwhere and just drop him off. 

(T. 1843). 

Grmver told Elaine where to drive, and Elaine drove them all 

back into a wmded vea. (T. 1844). Groover said that he wanted to talk to 

Padgett far a minute, and the two of them got out of the car. (T. 1844). 

defendant and Elaine were sitting in the car when they heard a gunsbt. (T. 1844). 

The defendant jmpd out of the car and ran around to where Padgettwas laying 

on the ground. (T. 1845). 

to shoot Padgett again. (T. 1845). 

The 

Grmver told the defendant to back up , and proceeded 

The gun misfired several tks, and (kcover 

Page -10-

took out his knife and stabbed Padgett with it. (T. 1845-2846). 

went back to the car and sat d m next to his ex-wife. (T. 1846). 

the gun that Groover was using on Padgett as being the gun that Michael Green 

had given him. (T. 1845). 

going to drop Padgett off out in the wmds, mt kill him. (T. 1844). He did 

not b em aware that Groover had the gun until he heard the shot. (T. 1845, 

1935). 

The defendant 

He remgnized 

The defendant had believed that they were sinply 

The mtdical examiner, Dr, Lipkovic, testified that Padgett had been shot 

one tk in the back of the head with a .22 caliber bullet IT. 1019), and that 

the gunshot wound was fatal and would have caused inanediate unconsciousness. 

(T. 1024). 

There were tm stab wmds to the chest that muld also have been 

fatal (T. 1020), and mn-fatal slash vicxmds across his neck. (T. 1020-1021). 

There was also a small triangular wound to the head that was consistent with a 

graze wound from a gunshot. (T. 1043). 

His findings were not hmnsistent 

with Padgett king shot first and s-d shortly thereafter. (T. 1042). 

Lipkovic also found that Padgettwas under the influence of phencycladine 

(FCP) ad had a b ld alcrohol level of -18 (T. 1043-1045). 

Rs Elaine Parker drove the car frm the scene, &WVET said to go to 

Billy Long's house, because he had to find out where Nancy Sheppard lived. 

(T. 1847). &cover warned the defendant and Elaine to keep their ""mouths 

shut" about the mder or he would "get" them, or "get" their children, or "get 

sadmdy to get than''. (T. 1847). mver also said that, if he went to jail, 

he would say that Elaine and the defendant were involved in it tm. (T. 1848). 

&cover told them to drive back to the defendant's parents' junkyard to mlt 

the gun down. (T. 1848-1849). 

when they reached the junkyard, it was approximately 12:15 A.M. on 

Sunday, February 7, 1982. (T. 1480). 

hmne of Spencer Hance, who also lived at the junkyard. (T. 1480-1849). 

had given the unloaded pistol ta the defendant (T. 1850). 

Page -11- 

Dr. 

The defendant knocked on the door at the 

Hance told the 

Graver

e 

defendant that there was no oxygen in the acetylene torches, and refused to 

get rid of the gun for him, (T. 1481-1482). 

then went to the garage by Hance's house, where Grmver ad the defendant 

melted the gun dawn with an arc welder. (T. 1482-1484, 1849). Hmce noticed 

that the defendant and Elaine s d 

to be ''pretty high" at the th, but that 

Groover was "straight". (T. 1497). Hance did not see a gun other than the ohe 

they Mted, but did notice that Groom had sawthing stuck in his pats 

off to one side, covered by his shirt hanging over it. (T. 1497-8). The 

defendant saw that it was, in fact, a gun, another 'l.22 pistol''. (T. 18501, 

While they were using the arc welder, mce walked out to Elaine who was 

seated in her car in the junkyard driveway. (T. 1484). Hance asked Elaine what 

was going on, and she said they had killed sarebdy. (T. 1485). Hance went 

back to his house, and the defendant and Grmver came in SOM? after. (T. 1485- 

1486). They cooled off the melted gun in Hance's sink. (T. 1486-1487). Groover 

washed his knife off in the sink. CT. 1487, 1495, 1850-1851). Groover then 

said, We better check each other for blood." (T. 1487, 1851). Hance could 

not tell if there was blood on the defendant or not. (T. 1495-1496). The defendant 

did not think there was any blood, but he was "going along" with whatever 

Gmover said at the tb. (T. 1851). Gmover was doing mst of the talking while 

they were in €lance's house. (T. 1495). 

The defendant, Grower and Hance 

Grmver wanted to go to Billy Lmg's house, but when they went there, bng 

was not haw, (T. 1851). Grcmver said to go to the Out of SigkLounge, a topless 

bar, to see if Long was there. (T. 1851-1852). The defendant was hoping that, if 

they found Long, Grcmver would just leave them and go with Img. (T. 1852). 

the Out of Sight Lnunge, Grocrver saw Jdy Dalton and invited her to care with thm. 

(T. 1852). 

(T, 1341) 

Graver and Ibng had kmwn Ms. Dalton for "a couple of mnths". 

She had slept with Grooyer an several occasions at Iong's house and 

had also stayed with bng, (T, 1342). Dalton had been caning over to long's 

house when Long and W ver matt there, 

Page -12- 

At

(T, 1342-1343). 

mng's rmther disapproved of this practice and Jjong had told 

Grmer that she was bothering his mther. (T. 1343). 

with Groover, Elaine, and the defendant. (1853). 

Dalton agreed to go 

Grcmver told Elaine to ddve to the St. Johns River, where he got out 

of the car and threw the pistol into the river. (T. 1853). 

up in a rag, and Dalton asked no questions about it. (T. 1880). 

did not think that she saw the gun. (T. 1880) 

house again; he still was rat ham. (T. 1853). 

Parker's trailer, so Elaine drove thm there. (T. 1853-1854). 

sme th at the Parker's trailer, the defmdant and Elaine were going to go 

out to get mre beer. (T. 1854). Grmver, howevex, insisted on going along 

with than, and they left Jody Dalton alone at the trailer. (T. 1854). They 

bouth mre beer at a Minit Market, then &cover stated that Joan Bennett knew 

where Nancy Sheppard lived. (T. 1855-1856). 

Imew where Joan lived, and told the defendant to tell Elaine to drive them to 

Bennett's honvt. (T. 1855). 

The gun was wrapped 

The defendant 

They drove to Billy L~ng's 

Groover suggested going to the 

After spending 

Gmover knew that the defendant 

The defendant testified that he did not see Joan Bennett that night until 

they went to her trailer, and that they did not stop by The Sugar Shack after 

Padgett's death. (T. 1949). 

Shack at about 2:30 A.M. and saw the defendant Elaine, and Gmover in the 

parking lot behind the bar. (T. 1536-1537). She said that she heard the defendant 

boasting that he had "killed a mtherfucker" and was not scared to kill another 

'btherfuckerl'. (T. 1537-1538). Grmver responded, "Shit, you ain't did shit; 

you ain't killed nobody". (T. 1538). Bennett also testified that she saw both 

FiLaine and the defendant take sane "acid", and that all three of them were 

''high''. (T, 1540-1541). 

Bennett testified that she sbppd by The Sugar 

Elaine Parker drove her car containing the defendant and krnver over to 

0 Joan Bennett's trailer. (T. 1508, 1805). Elaine got Bennett up and they went 

outside to the car. (T. 1508, 1855). Bennett testified that Elaine asked her 

Page -13-

if she hew Nancy Sheppard, and that Bennett replied that she lived out by 

Bennett's mher. (T. 1508-1509). According to Bennett,they did not ask 

her where Ms. Sheppard lived, (T. 1509), and they did not know where Bennett's 

mther lived. (T. 1541-1542). Bennett said she did rot show them where Sheppard 

lived; they simply went to the Parkerrs trailer directly. (T. 1541-1542). 

The defendant testified that Grmver asked Bennett to show him where Sheppard 

lived, and that Bennett direct& them to Sheppard's house. (T. 1855). 

even went and knocked at the frmt door of Shepard's house, but no one 

answered the door. (T. 1855). Then they all went to the Parker's trailer. 

(T. 1856). 

Bennett 

When they returned to ule Parker's trailer, Jody Dalton was holding a 

bag of Qualudes. (T. 1509, 1856). 

said that he had told her it was all right. IT. 1543). 

the defendant and Groover went outside the trailer for about 15 minutes, then 

Groover: carre inside and asked if everyone wanted to go to Lonut Lake. (T. 

1512-1513). The deferdant testified that Groover was outside alone for a 

period of tht and that he went out to see what Groover was doing. (T. 1537- 

1538). Bennett admitted that she had previously told a police detective that 

she did not kncw whether the defendant or Grmver had left the trailer at all 

before they left for the lake, because she was not paying any attention. (T. 

1545). 

defendant sat in the front passenger seat, and Elaine drove them all to Donut 

Lake, to "drink sane beer and party". CT. 1513, 1858). 

The defendant becm upset, but Gmver 

-nett testified that 

Bennett, Grwver, and Dalton sat in the back seat of Elaine's car, the 

Joan Bennett testified that, on the way to mnut Lake, Giroover told the 

defendant that "he was going to waste Jody because she seen the piece that we 

used on Richard". (T. 1514). Bennett said that the defendant agreed that 

Grower should waste Jody. (T. 1551). Hawever, Bennett admitted that, in 

?bmcly Groc3wer's trial, she had testified that Grmver said he had to waste JdY 

because she knew abut the piece he I used on liidmrd, (T. 1547) and that, when 

Page -14-

he said it, "nobdy paid any mbd to it!'. (T. 15511, Bennett and Dalton becm 

involved in a fist fight, but Elaine broke it up, (T. 1515). 

blbn performed oral sex on Grmver in the back seat, with everyone else 

present in the car. (T. 1516). When they got to the lake, Gmver, the 

defendant, and Dalton got out of the car. (21. 1517). 

and MS. Bennett to stay in the car. (T. 1517). 

defendant, Dalton, or Groover, who wre all behind the car, but heard WCOn 

making mdng sounds. (T. 1517). 

hair to the side of the car. (T. 1518). Ihlton was naked. IT. 1518). &cover 

was kicking Dalton (T. 1518-1519, 1555). 

he said, 'You know why". (T. 1519). Grmw then pulled a gun frm out of 

his boot and shot Dalton "at least" five or six t bs in the head. (T. 1519, 

1558). &e defendant had been leaning against the car, about fifteen feet 

from Groover and grabbed him. (T. 1519). The defendant shouted, 'What are 

you doing, you crazy mtha fucker''. (T1559) He also said, 'You are making too 

much noise". (T. 1519, 1559). Elaine told Bennett that &aver was crazy. 

(T. 1557-1558). 

After the fight, 

Groover told Elaine Parker 

Bennett could not see the 

She then saw Grmver drag Ihlton by the 

She asked him why he was doing it and 

Bennett further testified that W ver got the car keys from Elaine and 

opened the back of the car. (21. 1520). 

out of the car, tied thm to Dalton's body, and tmk the body out into the lake. 

(T, 1520-1521). 

he wanted to stay there for a few minutes "to make sure the bitch stayed down". 

IT. 1522). 

They tnok rape and concrete blocks 

After they took her out into the lake, the defendant said 

Bennett admitted that at Grmver's trial &e had attributed a 

similar camrent to Grmver, not the defendant. (T. 1560-1561). She eventually 

said that she had lied in Grmver's trial. (T. 1561-1562). 

Bennett further testified that, as Elaine drove them frm the lake, 

Groovey told Bennett that he would kill her if she said anything, and that even 

if he was in jail he mild have SCBnebody kill herp (T. 1563-1564). 

klieved that Grmver could have her killed because he had connections with 

Page -15- 

She

with people h the drug trade and with the Outlms &orcycle gq,(T. 1564). 

After the shmting, the defendant didn't say anythng, he just sat there 

looking "scared or paranoid". (T. 1562-1563) 

trailer, where they burned Dalton's clothes and their own and their shoes. (T. 

1524-1525). 

knife. (T. 1525), The defendant found his wallet there, (T. 1527), and he and 

Grmer thew some water on the blood in the dirt. (T. 1527). 

Bennett hone, she heard the defendant say that he had to get to the junkyard 

to change the tires on the car before sawone woke up, and that they had to 

go find Billy Long. (T. 1528) I 

They all returned to the Parker's 

They then went back to colzut rake because the defadant lost his 

for her that aftmoon, but Bennett hid frm him. (T. 1564-1565). 

When they took 

Groover cam by Bennett's trailer looking 

Joan Bennett testified that she had denied any knowledge of the murder 

until her arrest on my 18, 1982, for first degree murder. (T. 1566). 

prosecutor reduced the charge fran first degree wder to accessory after 

the fact in exchange for a guilty plea on September 8, 1982. (T. 1578-1582). 

QI De& 23, 1982, the prosecutor arranged for her release from jail 

without having to post bond, and she remained out of jail after that while 

awaiting sentacing. (T. 1582-1583). Bennett was awaiting sentencing at 

the th she testified against the defendant. (T. 1583). 

The defendant testified that, on the way to IBnut Lake, Joan Bennett 

had told Jody Calton to perform oral sex on @mwr. (T. 1859). 

-lied, she and Bennett gat into a fight until Elaine broke it up. (T. 1859- 

1860). 

(T. 1860). 

car. CT. 1860-1861). 

anyway, pulled Dalton off the hood of the car ad M e d 

The 

her down. (T. 1861). 

Grawer started kicking her, then pulled the pistol out of his boot and shot 

her. (T. 1861). 

After klton 

after they got to the lake, Bennett made Dalton take her clothes off. 

Grmver then began having sex with Dalton on the hood of Elaine's 

Grmver suddenly stopped, said that he did not want her 

The defendant ran up to Grmver saying, "What are you doing, 

YOU crazy r>& fucka?"(T1861) . G mVer Still had the gUn in his hand, and 

Page -16-

told the defendant to "back off". (T, 1861-1862). 

Groaver was going to kill Jody Dalton (T. 1861), nor did he have any reason to 

want to kill her. (T. 1879). He did not knm the rope and concrete blocks were 

in the trunk of Elaine's car until Gnmwr opened it up, (T. 1862). He Was not 

concerned about hm mch noise Groover mde in shooting Jody Dalton. (T. 1862- 

1863). 

into the lake, and the defendant did so. (T. 1863-1864). 

what &mwr said because he was afraid of Groovex. (T. 1860). 

The defendant did not kncrw 

Graver told the defendant to tie the blocks b the body and take it 

The defendant did 

Grmver again 

said that eveJcyQne should keep quiet "if they knew what was good for them". 

(T. 1865). After they burned their clothes and took Joan Bennett hare, Groover 

wanted Elaine and the defendant to take him to find Billy Long. (T. 1866-1867). 

Dr. Floro, an Assistant Wdical Examiner, testified that Jdy Dalton 

had received four .22 cal* gunshot muds to the head. (T. 1060-1061). 

of the gunshot vmunds muld have bem fatal; each would have cased kdiate 

unconsciousness. (T. 1065). He could not determine which gunshot mund had 

been inflicted first. (T. 1065). 

her death, Dalton had been under the influence of alcohol, with a .11 blood 

alcohol level, as well as cocaine and doxalamine (a prescription antihistamine). 

IT. 1064). 

Dr. Floro also found that, at the th of 

Elaine Parker drove her car, with Groover and the defendant inside, to 

Billy Iong's house. (T. 1252, 1397, 1867). 

Ttm 

Between 6:30 and 6:45 A. M., Iong 

arrived haw and saw Elaine's car pulling out of his drivevvay. (T. 1252). 

parked his car and Elaine backed up to where he was parked. (T. 1252). 

Billy Long testified that either Grmver or the defendant told him that 

Richard Padgett wanted to see his girlfriend, Nancy Sheppard, and that they 

wanted Img to take them to her house. (T. 1252-1253, 1397-1398). hng got 

in the back seat, Elaine got in the back seat, the defadant remained in the 

Long 

front passenger seat, and Groover took over driving Elaine's car. (T. 1255, 1402). 

To Long, it ''setxed like" everyone in the car was "high" (T. 1401-1402). 

Page -17-

Long told Gmover hm ta get to Wppard's house. (T. 1253, 14021, Grover 

told Img to go ta the door to get Sheppard, but Long refused, (T. 1253, 1402). 

G m e r and the defmdant then told Elaine to get the girl. (T. 1253). 

The defendant testified l%at Grmver got out of Elaine's car and talked 

to Lmg briefly at Lang's house before they got into Elaine's car. (T. 1867). 

&cause Joan Bennett had already sham Grmver where Nancy Sheppard lived, the 

defendant ass& that Iong knew bhat was going on. (T. 1868). 

had seen Ung with a hand gun in the past. (T. 1868). 

to get Sheppard fromher bwe, then told Elaine to go get her. (T. 1869). 

The defendant was hoping that Elaine muld not 

did. (T. 1869). Groovex: told Sheppard that l'Richard wanted to see her," 

and drove her out to where he had killed Padgett. (T. 1869). 

The defendant 

Grmver first told Ung 

out with Sheppard, but she 

mng testified that, as Graver drove them to where Padgett's body was, 

the defendant told Sheppard that Padgett was "out in the woods, wandering 

around high, wanting to see Nancy". (T. 1403). 

body lay in a ditch, Wver stopped the car and the defendant got out and told 

Long to get out. (T. 1256-12571, 

to the ditch, where the defendant showed him Padgett's body and said, "Either 

you kill her or you aye going to lay in the ditch with them". (T. 1257, 1404). 

Long said he was afraid of the defendant because the defendant had shot him 

during a domestic argunent with his wife, Denise Long, in Fehrmary of 1980. 

(.T. 1257-1259, 1336-1338), Wng is six feet, two inches tall and weighs 240 

pounds, and admitted that he '"probably" would have knocked the defendant out 

if the defendant had not shot him. (T. 1337-1338). 

When they cam to where Padgett's 

Img got out and walked with the defendant 

Long said that he and the defendant walked back to Elaine's car, and 

th& tkdefendant asked Sheppard to get out. (T. 1260, 1404). Elaine handed 

Long a .22 pistol and said, "Here, you better do it or he'll kill you, too". 

(T. 1260). She obtained the weapn from her purse. (T. 1404-1405). Ms. 

Sheppard walked over to the ditch, saw Padgett's body, fell to her knees and 

Page -18-

and said, Yh ny God". (T. 1260). 

twice. (T, 1260, 1406). 

again, Long fired the gun until it rmuldn't shoot anpre. (T, 1260-1261, 

1410). 

1410). 

throat. (T. 1261, 1410-1411) 

Lnng then shot her in the back of the head 

Fkren Groover and the defendant told him to shoot her 

Gmover told Long to cut her throat, but Iong refused. (T, 1261, 

The defendant then took the knife from Grmver and cut Sheppard's 

The defendant took Sheppard's necklace and class 

ring, and Long threw her in the ditch. (T. 1261, 1427-14291, 

I;ong testified that he assmd the defendant was anred thatmming, 

(T. 1259-1260), even though he did not see him with a gun, (T. 1418) and the 

defendant did not say he had a gun. CT. 1420). 

Mver, mng called the police and gave them a written statement in which 

he said that the defendant had a gun in his hand when he told him to get out 

of the car. (T. 1414-1417). 

reported, mrn statmt in which he said that the defendant was standing there 

with a gun pointed at him when mng shot Nancy Sheppard. (T. 1411-1414, 1417- 

1421, 1424, 1432). 

The day after his arrest, 

After the written statement, he gave a court- 

Long also had apparently told his lawyer that the defendant 

had pointed a gun at his head at the t h of the shooting. (T. 95-97). 

Long's deal with the prosemar, Ralph Greene, was that unrelated charges 

of Sale and Possession of Quaaludes and Sale and Possession of Cocaine would 

be dropped, and that the first degree mder charge would be reduced to second 

degree mrder, with no minimum mayldatory sentence. (T. 1436-1440) 

awaiting sen%cing on the second degree murder charge, having been told that 

"they wuld be as lenient as they could" in exchange for Img's testhny. 

(T. 1446-1447). 

by jail innate Donald Foy telling Tmmy Grmver, "If you don't want to get the 

electric chair, you better do like I did and say FObert mde you do it." (T. 

1749). Jail hnte Richard Ellmod heard Long boasting that he wuld lie to 

see to it that the defendant got the death penalty. (T. 1765). 

Long was 

After he made his deal With the prosecutor, Long was overheard 

el^^ further 

testified that Lmg told him that he, not the defendant, had cut NmcY Sheppard's 

Page -19-

throat. (T. 1765). 

Img told Ellwood that he and Grcwer were outside the car 

when Nancy Sheppard was killed, and that the defendant was in the passenger 

seat of the car, high on drugs. (T. 1766). Ellmod testified that Tbmy Gmover 

had also told him that the defendant was back in the car whm Nancy Sheppard 

was murdered. (T. 1788). Billy Walters, another jail imte, testified that 

Billy long had told him that he, not the defendant, had cut Nancy Shepprd's 

throat. (T. 1799-1800). In kis conversation with Walters, Long referred t~ 

prosecutor Ralph Greene as "rry buddy Ralph". (T. 1798-1799). 

The defendant testified that Grcxwer and Img got out of the car, went 

over to Padgett's m y, and talked briefly. (T. 1870). Lmg tha returned to 

the car and said that Grmver wanted She@ to corrrt over there. (T. 1870). 

The defendant got out of the car so that Sheppard could get out. (T. 1870). 

She walked to the ditch, fell to her knees, and was shot by Billy Long. 

(T. 1870-1871). The defendant did mt see where the gun c m from. (T. 1871). 

The defendant heard Grmver tell Long to cut her throat, then turned and sat 

back down in the front passenger seat of Elaine's car. (T. 1871). make was 

still in the back seat. (T, 1871). 

The defendant did not see who cut Sheppard's 

&cat. (T. 1871) Thoug-h he knew Nancy Sheppard was going to be killed, the 

defendant did nothing to prevent it because he was afraid of Eroover and Long, 

and because he was high on drugs and alcohol. (T. 1880-1881). 

Dr. Lipkovic testified that five .22 caliber gunshot wounds caused 

Nancy Sheppard's death. (T. 1031). 

head, one over the eye, and tm in the chest. (T. 1025-1029). She had been 

stakbed seven times in the neck. (T. 1029). 

very shallow, and were not fatal. IT. 1032, 1049). The gunshot wounds to the 

head would have caused hdiate unconsciousness. (T. 1032-1033). The drug 

rooqdune was detected in her systesn. (T. 1049). 

73.m gunshot wounds were to the back of the 

?he stab wmds =re superficial, 

Billy Long testified that Gmover drove thm from the scene of 

Sheppard's murder to mnut Lake. (T. 1264-1265). &mver and the defendant got 

Page -20-

out of the cay. and walked around by the bank of the lake. ("Te 1265-1266) I When 

they got ba& in the car, the defendant said that he did not think they had ta 

"mq about her d n g up''. (T. 1266). 

far I'd like ta have dmwnd". (T. 1266). 

out to find his knife. (T. 1872-1873). 

The defendant said, "1 tmk her out so 

The defendant testified that he got 

lbrris Johnson went ta the Parker's trailer on Sunday after he found out 

Gro0vs.r ard Long had been looking for him and Padgett. (T. 1696). 

The defendant 

told Johnson that "you and Richard ain't got nothing to do with it, it's Tb"ly, 

Tamny mes m mneyll. (T. 1697). Johnson noticed that the defendant was acting 

scared at the th. (T. 1697). 

On Sunday mrning, after dropping Img at his ha, Elaine, Grmver and 

the defendant stopped at spence Hance's house again. (T. 1489) . Acmrag to 

Hance, the defendant held up tm fingers and said, "We wasted two of them". 

(T. 1489). 

The defendant testified that Hance had asked him if they had really 

killed somebody, and in response, he held up three fingers. (T. 1958-1959). 

(T. 1811). 

Elaine Parker's gun was used to kill Jody Dalton and Nancy Sheppard. 

Michael Green had seen it sitting out on a cabinet shelf next ta 

a box of shells in the Parker's trailer, in a pla~ where ?bmny Groover auld 

have seen it. (T. 1213-1214). 

The defendant melted Elaine's gun, too, and 

disposed of his knife and Groover's knife, as well. (T. 1878). 

On lvbnday (February 8, 1982), S pce Hance overheard Groover and the 

defendant talking at a cook out at the junkyard. (T. 1491) 

defendant say that he 

1491). 

Hance heard the 

had cut up the knives and thrown them in a SWaKp. (T. 

Hance also heard Grmver say that he (Gmover) had cut Richard Padgett's 

throat after Padgett was shot. IT. 1494). Grcmver said that he (Grmver) ''had 

rrade Billy mng shoot the girl". (T. 1494). 

Hance heard the defendant say 

that he (the defendant) did not kmw Padgettwas going to be killed, and that 

he thought Padgett was going to be left in the woods to walk horne. (T. 1494) . 

On Thursday, (February 11, 1982) , Michael Green went to the junkyard and 

Page -21-

saw the defendant and &cover burning a rope very similar to the rope that had 

been in the defendant's tree. (T. 1214). 

on a warrant for Aggravated Assault, in an incident that did not involve any 

of the murder victims. (T. 197-198, 200-201). Cetective John Bradley of the 

Jacksonville Sheriff's Office said that the defendant told him he "didn't 

have a gun, did not am a gun, had rat had a gun in his possession or had 

anythmg to do with guns". (T. 1650). 

The defendant was arrested on Thuysday 

Elaine Parker was not called as a witness by the prosecution because 

she could mt rebut the defendant's testhny. (T. 2053-2054, 2-56-2058). 

Fbllwing the jury's verdicts, and at the conclusion of the sentencing 

hearing, the jury returned with its life recarnrvendations. (R. 434-435, T. 

2516-2517). 

Page -22-

WHEXFER THE 

THE JUHI UPON THE LAW QF INDEPENDENT ACT UNDEX 

THE F " Y - m R m N E PREVENED THE DEZWWANT 

FRaM EFFECTIVELY DEFENDIPJT; AGAINST TIE CAPITAL 

HQMICIDES IN mUNT3 I AND I11 OF THE INDI-, 

AND P-D THE JURY FIMM CONSIDERING HIS 

EF!FNSE TO THOSE: CHARGES, IN VIOLATION OF ?HE 

D m ' S KCGHT TO A FAIR TRIAL BY AN IMPAF3TAL 

JURY, AND DUE PRX!?BS aF LAW, AS GUARANTEED BY 

THE FIFTH, SIx?H AND COURTEENTH AMENnMEcJTs TO 

TiE U. S. CDNSTITUTICN AND A€U'IcLF, I, SECTIONS 9, 

16, AND 22 OF TFE F'iXRIDA CONSTITUTION. 

I1 

WHETlER THE: TRZAL aUR" ERRED IN INSTRUCTING 

THE THAT DURESS IS NOT A DEFENSE TO HQMICIDE, 

WITHOUT REGARD TO wHEI€EB THE ACCUSm WAS AN AIDER 

AND ABETTOR AS OPPOSED TO A PRINCIPAL, AND WITHOUT 

REXXRD TO WHETHER HQMTCIDE WAS A PF?EMEDITATED 

OR A ??ELONY MURDER, IN VIOLATION OF THE RImT OF AN 

ACCXJSFD TO HAVE: TfdE 17uHll INSTRtJCTBD IN ACCORD WITH 

HIS DEFENSE, AND HIS RIGarrTo 'IHE EZ'FlETIW ZSSISTANCE 

OF CDUNSEL, AS GUARANTEED BY THE FIFTH, SIXTH, AND 

F O I l R XW"E ~ 

TO THE U.S. CONSTImON AND 

ARTICLE I, SECTIONS 9 AND 16 OF THE: F'LORIDA 

CONSTITUTION. 

I11 

WHEXBER TFE TRIAL COURT ERRED IN AIXWING THE 

PBECUTION To PRESENT, IN ITS CASE IN CHIEF 

AND IN CmS-EXAMINATION OF THE D m , 

C0L;LATERAL CRIMINAL ACTS AND A?TAcKs ON THE 

D m ' S WHICH WERE WHOiXY 1- 

TD THE CRIMES CHARCED AND WHOSE SOW EFFECT WAS TO 

DEDDNSTRATE A PROPENSITY TO m T CKIlG, IN 

VIOLATION OF THEC D ' S 

RIGIT TO A FAIR TRIAL 

AND DUE PROCESS OF LAW, AS BY THE 

FDURVENTH AMENaMENT To ?HE U.S. CONSTITUTION, AND 

ARITCLE I, SECTION 9 OF THE FLORZDA COT\ZSTITUTION. 

Page -23-

V 

wHET€ER ?HE TRIAL COURT ERRED IN FAILING TD GRANT A 

NEW TRIAL WHERE IT WAS SHOWN THAT TRE PFOSECUTION HAD 

FAILED TO DISCLOSE FAVORABLE: EWIDENCE TO THE DEFENSE, 

IN VIOLATION OF THE DEFENaANT'S RIGHT TO THE EFFECTIVE 

ASSISTANCE OF COUNSEL AND DUE P-S OF JAW, aS 

BY !IHE FIm, SIXTH, AND FOUR^ 

-To THE U.S. C(XiSTITUTICIN AND ATITTC!lX I, 

SECTION 9 AND 16 OF WE J?I.DNN CcrNsTITUTION. 

VII 

W H E m THE TRIm COURT ERRED IN PERMITrING THE 

PRasEcuTolzs To REPEATEDLY ADVISE JUFU THAT 

C O - D EL?L!XE PARKER HAD PLFADED GUILTY AND 

HAD BEEN GIVEN A PLEA BARGAIN IN EXCHANGE FOR 

TEST= AGAlNST THE D-, WHE3E THE: 

D m WAS NCYT CALLED AS A WITNESS DURING THE 

TRIAL, IN VIOIATLON OF ZHE: DEPENXNT'S DUE PROCESS 

RIGHT TQ A FAIR TKWL BY AT!J l"TIAL JlEX AS 

GUARANTEED BY W FIFTH, SIXTH AND 

IlMENIlMENTS To THE us. coNsTI!rUTuIrn AND m1m 

I, SEcTroNs 9 AND 16 OF THE FLORIDA CONS~TUTION. 

Page -24-

IX 

X 

WHlTIWB THE TRIAL ERRED IN m I N G A POLICE: 

DETFCITVE TO TESTIET AS TO THE: RZUTATION OF DEFENSE 

WITNESS RICHARD ELINm FOR TRUTH AND VFBACITY, IN 

VIOIATION OF 90.609, FLA. STAT. (19811, 2WI'ICLF: I, 

B 9 OF THE FWFUDA CONSTITUTI~ AND THE F I AND ~ 

I%- TO THE: US. CONSTITUI'I~. 

XI 

b?HZEER DIE TRIAL (XUR'T ERRED IN PmTTING THE 

PEOSECUTION To QUESTION DEFENSE WITNESS RICKARD 

m D ABOW SPECIFIC PRIOR CUNVICI'IONS AND 

GETTING IWE: WITNESS To cJ;AIM HIS FIFTH 

PRIVTLEGE, IN VIOLATION OF THE -'S RIGHT 

TO DuEl PIEOCESS AND A FAIR TRIAL, AS GUWWTEZD BY 

THE FIFIH, SIXTH, AND ED- AME"Ts TO THE 

US. CONS-ION AND I, SECTIONS 9 AND 16 

OF THE: I?LOF!IDA CONSTI-ON. 

XI11 

Page -25-

WHEZHER THE TRIAL aURT ERRJ2D IN DWING THE 

DEFENDANT'S MCYI'ION TO SUPPRESS STATEMENIS, 

AD4ISSIONS, AND ~ S I O N AND S IN PERMITTING 

THE STATE To USE THOSE S m w IN ITS CASE 

IN CHIEF, IN VIOLATION QF THE FIETH, SIXTH, AND 

I%- AMNDEWE TO THE U.S. CONSTITUTTON 

AND ARTICLE I, SmION 9 AND 16 OF T€E CCRJSTLTUTTON 

OF THE STATE OF FLORIDA. 

WHETHER m TRUV, a)uRT FmED IN PERMITTING THE 

STATE TO USE THE DEEE"C'S STATEMENIS W E AT 

?HE ARREST FOR AN UNRELATED QFEENSE AS mDENCI3 

OF GUILT, IVVD IN SO IXSWCI'ING TfE JURY, IN VIOLATION OF TJ3E DEFEM3ANI"S DUE P-S RIGHT 

A FAIR TlUAL, AS GuFlRANTEED BY !IE l3- 

To THE U.S. mTITUTIOJSJ IWD ARTICLE I, 

SECTIONS 9 OF !I333 FLQRI'CIA CONSTITUTION. 

WHETHER THE TNAL COURT ERRED IN PRMIlBITING DEFENSE 

~UNSEL F"4 ASKING STATE WImS DENISE LDNG ABOUT 

HER STATUS ON PFORATTON, IN VIOLATION OF THE D m ' S 

RIGHT TO CDNFWNTATION AS m D BY THE SMTH AND 

FOUR!EENM AMENaMENTS TO TJB US. m?ZTUTION AND 

ARTIQ;E: I, SECTION 16 OF THE FIDRIDA CONSTIWI~. 

XVII 

WHEI'HER THE TlUAL COURT ERRED IN ovE3I-FUGING DEFENSE 

OEJECC'IONS AND FALLING TCl DFCLARF, A MISTRIAL WHEN TE 

PROS- INTWDUCED EVIDENCE OF PFZOR CONSISTENT 

S7XFPENE BY WITNESS BILLY LDNG BmKI3 'XHE WITNESS'S 

CREDLBTLITY HAD BEEN AmmD, IN VIOMTION OF 2 90.801 

(2) (b), FZA. STAT. (19811, AM3 TEE DUE PROCESS CLAUSE 

OF THE: FIFTH AND l?3- lW"E TO TJlB U, S, 

CONSnmON AND WKt'ICiX If SECI'ICIPJ 9 OF T€€E FLc>RIDA 

CCPJSTITUTION. 

Page -26-

XVIII 

WHEXfER THE TRUG COUW: FBRED IN REQUIRING THE: 

DEFENSE To TLIKN OVER 'ID THE PRC)GECUTIa A DEPOG'ITION 

OF S'IIATE WITNESS BILLY LONE, IN I "I?EmING m S - 

EZ@"ATION, AND IN PE3MITTING THE PROGECUTOR AN 

OVERNIGHT RECESS To. PREPARE THE WITNESS FOR ADDITIONAL 

~ S - ~ ~ T I IN O VIOLATIONS N , OF FLA. R. GRIM. P. 

3.220 (b) (4) (i) and (iii) AND THE -'S lUQIT OF 

mWNTATION AND TO T€E EFFECTIVE ASSISTANCE OF 

COUNSEL, AS GUWWTEED BY THE SIXIX IWD F'OLREENTH 

TO ?HE: U.S. CONSTITUTION AND AFXTCLE I, 

SEI'ION 16 OF THE FLx>RIDA CONSTITUTION. 

WHETHER THE -'S SENTENCE: OF DEATH MUST' BE 

VACATED BF,CAUSE 5 921.141, F'LA. STAT. (1981) , IS 

UN~STITUTIONAL, BOTH ON ITS F m AND AS APPLIED 

IN ZHE STATE OF WWDA, IN V'IOZATION OF 'I'M3 FIFTH, 

SIXTH, EIGWIH, NINTH, AND FOUREENTH TO 

'IHE U.S. ~T1Tt.PI'IOP-J AND ARTICLE I, SECI'ION 9, 16, 

AND 17 OF TKE F'LDRIDA CONSTITUTION. 

Page -27-

In a prosecution for first degree mder, if the accused was present, 

aiding and abetting the mumission or attqt of one of the violent felonies 

listed in 8 782.04 (1) (a), Fla. Stat. (1981), and a homicide results frm the 

mrMnission of the underlying felony, the accused is as guilty of first degree 

murder as is the actual perpertrator; State v. Aguiar, 418 So. 2d 245 (Fla. 

- 

1982); Ernravld v. State, 399 So. 2d 1362 (Fla. 1981). However, the liability 

of a felon for the acts of his co-felons is subject to the limitation that the 

lethal act mtbe in furtherance of the mtmn design or unlawful act the felons 

- 

set out to accanplish. Adarm v. State, 341 So. 2d 765 (Fla. 1977); - Pope v. State, 

84 Fla. 428, 94 So. 865 (1922). &cause it is the conmission of a homicide in 

conjunction with the intent to cwrrnit the felony that substitutes for the 

requirement of premeditation for first degree murder, it is necessary that there 

be saw causal connection between the homicide and the felony. Bryant v. State, 

412 So. 2d 347 (Fla. 1982). Thus, if the hdcide was mitted as the 

independat act of a co-felon, and not a part of the mmn s&em or design, 

the accused is not guilty of first degree murder. Id. Florida is not alone 

in recognizing the "independat act" defense to felony-murder. See People v. 

- 

wood, 8 N.Y. 2d 48, 201 N.Y. S. 2d 328, 167 N.E. 2d 736 (Ct. ,App. 1960) : People 

v. Kauffman, 152 Cal. 331, 92 P. 861, (Sup. Ct. 1907); Mumford v. State, 19 Md. 

App, 640, 313 A. 2d 563 ('3. Sp. App. 1974). 

The pmsecution theory as to Count I was multiple; that the defendant 

and Tbmy Grmver ccmnitted a preditated murder of Richard Padgett because 

Page -28-

they were afraid of being killed by Padgett's family if his family found out that 

they had beaten Padgett up, (T. 2130-2131) ; that the defendant wanted Padgett 

killed t~ show he meant business in collecting mney for drugs (T. 2184- 

2185): or that Padgettwas killed during a kidnapping for the purpose of 

inflicting bodily harm or to terrorize the victim, and that the defendant was 

assisting in the kidnapping. (T. 2263, 2274). me state's theory as to Count 

I11 was that Jcdy Dalton was killed to cover up the murder of Richard Padgett, 

a prditated murder. (T. 2261, 2275). 

As to Count I, there was substantial evidence to support the indepsndat 

act defense to the charge of felony-murder. 

defendant was not the least bit upset with Padgett. (T. 1141). Padgett wed 

the defendant nothing . (T. 1832-1833). The defendant had Grmver's jewelry 

to hold as collateral for any mney G mver owed, (T. 1826) so there was 110 

urgency for the defendant to collect mney. 

care of the d&t the folldng day, IT. 1838), so there was no reason for Groover 

to kill Padgett for a drug debt. 

injured seriously by Grmver when &cover hit him With brass knuckles (T. 

1840-1841), and txmk Padgett to Carl Barton's house to clean his wounds. 

(T. 1470, 1842). There was evidence that the defendant was unaware of &mver 

threatening Padgett with a gun. (T. 1845, 1935). The evidence indicated that 

the defendant did not know Padgettwas going to be killed, that he simply 

intended for than to drop Padgett in the wds to walk k. CT. 1844, 1494). 

Padgett's body had over $16 in his wallet when it was found (T. 1117-1118) , 

vhi& shms he was not killed for money. (T. 2130). The evidence showed that 

the defendant and Padgett were good friends (T. 1138, 1816). However, it was 

carmrw3n knowledge that there was "'bad blood" between Gmover and Padgett. (T, 

1138, 1636, 1843). 

There was evidence that the 

aarlie B r m was going to take 

The defendant prevented Padgett frm being 

From this evidlence counsel could have argued that Groover 

killed Padgett for totally personal reasons, unreleated to any supposed schm 

or design to terrorize him to collect drug mney, and totally outside the scope 

Page -29-

of any felony in which the defendant might have been participating, 

did W e this argurrent in the penalty phase. (T, 2475-2476) ~ 

Counsel 

Cefense counsel sul=anitted a numhr of independent act instructions 

(R. 361, T. 2090; R. 362, T. 2090; R. 363, T. 2091), including the s m 

that counsel suldtted in Bryant, supra. (R. 362). The court perfunctorily 

denied each instruction, and, in ef€ect, left counsel in the posture of having 

a defense that was unsup~3orted by any jury instruction. 

a defense that was not supported by the standard instruction, munsel argued 

that the def adant was guilty of third degree felony d er 

one 

in Count I, (T. 

2241-2242), since the defendant had clearly agreed to participate in the false 

irprisomt of Padgett that occurred when he was taken into the woods rather 

than haw. The indepdent act instruction muld have providd the basis for 

a defense argument for acquittal as to Count I. 

the jury f m 

Rather than argue 

Likewise, an independent act instruction might well have prevented 

convicting the defendant in Count 111. 

not accept the state's thaq that the defendant aided in the prerrvtaitated 

murder of Jody Dalton. 

The jury obviously did 

There was 110 instruction on first degree felony rrnurder 

as to Count I11 (R. 388), but the jury was instructed on third degree felony 

murder as to Count 111. (R. 392) . 

There was evidence that Dalton did not kncrw anything abut Richard 

Padgett's murder. (T. 1880). 

Long's house, and &cover was aware that Long's mther did not want her carting 

around. (T. 1341-1343). 

dislike for Dalton (T. 1861). 

made, and, in fact, was mde, that the murder of Jody Daltm was exclusively 

due to personal motives on the part of Gmover. (T. 2204-2205). 

act instruction could well have provided the jury with a basis for acguittal 

as to Count 111, as well. 

However, she had been visiting Gmover at Billy 

There was evidence that Graver felt a personal 

F m this evidence the argurrrt3nt could have been 

An indepzndmt 

There was evidence to support the independent act theory 05 defense, 

Page -30-

ut munsel could not argue it because it was not supported by an instruction to 

the jury. However, when there is any evidence introduced at trial which supports 

the theory of the defense, a defendant is entitled to have the jury instructed on 

the law applicable to his thmry of defense when he so reguests .bbtley v. State, 

155 Fla. 545, 20 So. 2d 798 (1945); Bryant, supra. The sulxnitted instructions 

were legally correct and supported by the evidence. 

denied the jury a legal basis for accepting the defense and had the effect of 

preventing counsel from arguing it, except in mitigation. 

trial as to Counts 1 and 111. 

i%RGmmT I1 

Denial of the iulstructions 

TI3E TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT 

DUWSS IS NOT A DEFENSE TO HOMICIDE, WITHOUT REGARD 

To WHE;THER THE accoSED WFS AN AIDER AND ABmR aS 

OPPEED To A PRINCIPAL, AND WITHOUT RM*IARD TO Mm THE HWCIm W?S A PRENEDITATED OR A FELD?SN MURDER, IN 

VIOLATION OF THF, MQIT OF AN ACCUSED TQ HAVE THE JURY 

IN ACCORD WITH HIS DEFENSE, AND HIS RIGHT 

TO THE EFFECTIVE ASSISTANa OF COUNSEL, aS 

BY THE FIFI'H, SIXTH, AND FWKEENH TO THE 

U.S. CONSTITU'ITON AND AFKtTCLE I, SECTIONS 9 AND 16 OF 

THE WKDA CONSTITUTION. 

'Ihe r&y is a new 

ming the trial, the defendant testified that he becm afraid of 9brtm-y 

when mver nudered Richard Padgett. (T. 1846, 1851, 1861, 1863, 1872 , 

1878-1879, 1880-1881, 1924, 1945, 1979); that Gmover threatened he, his wife, 

and his familywith violent retribution CT. 1847-1848, 1849, 1865, 1942); that 

Grmver had another gun in addition to the first one the defmdant mlted d m 

CT. 1850, 1861, 1934, 1951-1952); and that the defendant did not have a weapon 

(T. 1863). hhm Billy Long got into Elaine Parker's car, the defendant believed 

Long knew of Groover's plan, and he had seen Lmg with a gun in the past (T. 1868). 

long was seated behind him and next to Elaine (T- 1870); and he was frightened 

of bng and Grmver acting in concert. (T. 1880-1881, 1962). 01 cross-examination 

by the prosecutor, he stated that he was co-erced into doing everythbg he did. 

(T. 1979). 

'Ihe state's theory of prosecution as to Count 11, the murder of Nancy 

Page -31-

Sheppard, was in the alternative; prmeditated murder, or felony (robbery) 

rmrdw, and the state requested the jury be so instructed. (T. 2001-2003). 

This .reguest was granted over objection (T. 2109-2112). The prosecutor argued 

felony murder in his summation, (T. 2274-2275), as well as premeditated murder. 

At the charge conference in this cause, the defense submitted Defense 

Requested Jury Instruction No. 35. (R. 360, T. 2087-2090). This duress 

instruction was denied, and the court instead chose to give State's €&quested 

Jury Instruction Nwnber 4 (R. 320, T. 2093-2096), which stated that duress 

is not a defense to homicide. 

(T. 2119-2122, 2265-2266), 

was guilty, even if his testimony was believed, because duress or cm-ercion 

was mt a defense to hcaruicide. (T, 2147-2149, 2153). 

Tkis instruction was granted over objection 

During sumoation, prosecutors argued that the defendant 

It is fmdaental that an accused is entitled to a jury instruction 

regarding any valid legal defense which he asserts if there is any evidence 

to supprt it. Bryant v. State, 412 So. 2d 347 @la. 1982); Brc~t~n V. State, 

431 So, 2d 247 (Fla. 1stD.C.A. 1983); Iaythe v. State, 330 So. 2d 113 (Fla. 

3rd D.C.A. 1976). The duress or co-ercion defense was recognized in Florida in 

- - 

Hall v. State, 136 Fla. 644, 187 So. 392 (1939), which was a prosecution for 

perjury. 

Florida courts have likewise recognized duress as a defense to robbery. 

Kaontz v. State, 204 So. 2d 224 CFla. 2nd D.C,A. 1967); Jackson v. State, 412 

So. 2d 381 (Fla. 3rd D.C.A. 1982). In Cawthm v. State, 382 So. 2d 796 

(Fla. 1st D.C.A. 1980), the defendant said he attempted to murder the victim 

because a third party had threatad to harm saw nm-present mtker of the 

defendant's family in the future, The appellate court held that a duress 

instruction was lawfully refused because the evidence did not support it, and 

also because "the co-ercion defense is not available in a case of hCanicide or 

attempted hmicide". id. at 797. In Wriqht v. -1 State 402 So. 2d 493 (Fla. 

3rd D.C.A. 1981), the defendant shot the victim first, then gave the gun 

Page -32-

to the co-defendant, who continued shooting. Cnly one gun was kwdved in this 

"contract" murder. 

The defendant's duress defense was rejected, as in cawthrxl, 

because it was not supported by the evidence, and because rl...duress is not a 

defense to an intentional hdcide". Wright, supra, at 498, These authorities 

were relied upon by the court and the prosecution. (T. 2109-2112). 

It is jmportant to note that both Cawthon and Wright involved defendants 

who prsmally injured or attesrrpted to injure their victim, and that the state 

did not prmeed on a felony murder theory in either case. Here, the defendant, 

if histBtimny is accepted, did nothing to assist in the ruder of Nancy 

Sheppard except to stand up so sheppard could get out of the car. His chief 

culpability lay in his failure b do anythinq to prevent the killing, which 

occurred in his presence, The facts of this case are thaefore unlike Cawthon 

and Wright and are mre similar to W e 

(Fla. 1981). 

three pxsms who were killed by two co-defendants. 

in -in v. State, 405 So. 2d 1970 

In Goodwin, the defendant aidd and abetted in the kidnapping of 

There was evidence that 

the defendant acted in fear of the co-defendants. The trial court apparently 

instructed the jury that duress was a defense: The trial judge properly 

instructed the jury on the defense of duress. I. 'I Id, 172. Language in the 

opinion indicated -&his Court's acceptance of the proposition that duress is a 

defense to an aider and abetbr of a felony murder: 

"The sole defense of the 

appellant was co-ercion and this was rejected. by the jury". Id,; "Although 

the jury rejected this fear as coercion by its verdict of guilty ...Ir 

duress were not a defense, the jury could not have rejected it. 

Id, If 

That duress can be a defense to felony-murder where an accused does not 

participate in the killing is a principal of law that has been accepted, both 

implicitly and explicitly, in other jurisdictions. In People v. Mzrhige, 212 

Mi&. 601, 180 N.W. 418 (1920), the accused's guilty plea was set aside because 

of an indication that he had acted as a "wheelman" in a robbexywudr only 

because his life had ken threatened, and had entered his plea Without under- 

Page -33-

standing that he had a defense to tbe charge. 

416, 146 N.E. 646 (1925), the accusedts liabilitywas predicated on a robbery- 

murder theory, since he, by the prosecution's version, helpsd plan the robbery 

that resulted in the murder for ten percent of the "lmt". Duress was held to 

be a valid defense ta the robbery and, therefore, to the mder. 

Milam, 156 N.E. 2d 840 (&o 1959), a defendant's first degree nnurder convictioh, 

(based on his participation in a robkxy which resulted in the murder of a 

policeman during the getaway) was reversed due to ccsrcpelling evidence of 

coercion by the two co-defendants. 

Wright, duress was ruled to be unavailable as a defense to felony mder where 

the defendant was the killer: 

In People v. Pantano, 239 N.Y, 

In State v. 

In another case cited with approval in 

According to (defendant), one of his capanions in the 

carmission of the robbery ... told him he would kill 

him if he didn't kill (victim). ?his is not a case 

where one is co-aced into the carmission of a lesser 

felony and a hdcide is Comitted by a caqanion during 

the perpetration of the lesser felony. Jackson w. Stake, 

558 S.W. 2d 816 (kb. 1977). 

Other jurisdictions have assured, without deciding, that duress can 

be a defense to prditated murder where the accused is an acmnplice, People 

v Wpke, 103 Mi&. 459, 61 N.W. 861 (1895); State v. - Clay, 264 N.W. 77 (Ima 

1935); State v. b%e, 341 So. 2d 348 (la. 1977), Rizzolo v. CmtWXwealth, 126 

Pa. 54, 17 A. 520 (1889); or even the principal, Arp - v. State, 97 =a. 5, 

12 So. 301 (1893). 

At least one court has held that duress can be a defense to 

prditated murder, even for a principal in the killing: 

39 Cal. App. 3d 398, 114 Cal. F!ptr. 413 (1974). 

Mple v. lbran, 

The defendant's position is that the lower court should not have granted 

the state's instruction that duress is not a defense to Mcide for the follming 

reasons : 

1. It is an incorrect staterrent of law, because duress is and 

and should be a defense to felony-rwrder for an accmplice, and to 

prmitated murder for a mere accwnplice who does not actually 

Page -34-

participate in the killing, 

2. If this court were to rule that duress is not a defense to an 

aider and abettor tm a premeditated murder, the instruction still Should 

not ham been given. 

On it face, it precludes the assertion of 

duress as a defense to an accmplice to a felony murder. 

was instructed on both prdtated and felony murder, and because the 

prosecution argued both theories to the jury, and became the court 

denied the Defendant's €&quested Verdict Form (R. 3661, it is b-pssible 

t.a detdne upon which theoq the jury convicted the defendant. 

Since the jury 

jury was precluded from considering duress as a defense under either 

-q. 

3. Istren were this court to rule that coercion is not a defense to 

hcanicide under any theory, the giving of the state's hmction under 

the cirmtances herein was ermneous and prejudicial. 

asserted to Count 11 was not that the defendant was coerced into 

participating in the murder. 

participate in the murder, but that he did nothing to prevent it because 

of fear for his own and his family's safety. (T. 2121-2122, 2237). 

instruction that duress was not a defense was necessary when duress was 

mt argued as a defense. 

told the jury that the defendant's fear of 2brrmy Groaver was irrelevant, 

and was tantmunt to directing a verdict of mlt. At the very least, 

in order to correct the false impression given by this instruction, the 

lower court should have giva the Defense €?equested Jury Instruction 

No. 25 (R. 350), whi& would tell that jury that mere presence at the 

scene and kmwledge that a trim is king camitted does not prove guilt. 

a7e defendant's explanation far his presence was his fear of Gmover; 

when the jury was told that duress or coercion is no defense, his 

presence became evidence of guilt. 

The 

The defense 

The defense was the defendant did rat 

Ihe giving of the instruction, in effect, 

Page -35- 

At the very least, no instruction 

No

elating t~ duress at all should have been yim, 

The prejudice of the cawthon instruction was cqlete. The r d y 

is a new trial as to aunt IT. 

At trial, the state presented evidence that, on Friday, Fbr- 5, 1982, 

(1). the defendant became upset at %my Groover because Eroovey 

wed him mney for drugs, and threatened to "kick his ass'! (T. 1141); 

(21. the defendant waived a gun at Mwris Johnson and asked Brother 

Caps "did he want to settle it right quick" (T. 1133) 

(3). the defendant was pointing a pistol at Mike Green, Ebrris 

Johnson, Ihvid McDonald, and Charlie B m , telling them that he needed 

his mney from the sale of drugs (T. 1165) 

(4) . the defendant threataed to hang Groover with a rope if he did 

not pay his mney (T. 1177) 

(5). the defendant got into a fight with scprreone rimed Ox B&er 

at a bar (T. 1221) 

The state further presented evidence that, on Saturday, FdXUq 6, 1982: 

(1) . the defendant and Michael Green went to the hare of scatleone 

rmwd Anthony to collect mney for drugs the defmdant had sold Anthony. 

The defendant slapped Anthony and Anthony paid the defendant. (T. 1210-1212) 

(2). Green asked Elaine Parker to go to Jerry Bmce's oyster roast 

to calm the defendant d m 'because he was all pissed off". (T. 1184) 

(3). at Jemy Buruce's house, the defendant got into a fight with 

Page -36-.

Brother Caps. (T. 1185) 

(4). the defmdmt tried to fire his gun through the wind- of 

Buruce’s house. (T. 1186) 

?he state presented evidence that on Sunday, February 7, 1982: 

(1) I the defendant and &mver went into Lewis Bradley’s house with 

a gun in an effort to collect mney avd to each of them by Denise bng 

(T. 1269-1270, 1599-1601, 1735-1737). 

(2). the defendant and Groover returned to Bradley’s house and fired 

shotguns at Denise long’s car. IT. 1606-1608). 

The state a150 presen&d evidence that in Febrruary of 1980, the defendant 

had shot Billy lbng in a darestic axcpnznt started by Lang‘s wife, Denise. (T. 

1257-1259). 

ch.1 cross-examination of the defendant, the prosecutor asked 

(1) if the defendant had concealed evidence of other violent acts 

before (T. 1885) 

(2) whether he had used Elaine Parker’s pistol to shoot at anyone 

before (T. 1885) 

1887) 

(T. 1889) 

(3) about an incident wherein his father-in-law had shot him (T. 1885- 

(4) abut threatening other people with a pistol before (T, 1887-1888) 

(5) alleged that “people are absolutely terrorized“ of the defendant 

(6) inquired about the defendant s m mhip and use of gun from 

1980 - 1982 (T. 1890-1892) 

(7) crossed the defendant abut the mllateral incidents the state 

had introduced in their case in chief (T. 1900, 1902, 1905-1906, 

1907-1908, 1909-1911, 1915-1919, 1980, 1983) 

(8) alleged that the defendant had Grower ‘kemrized”, and that 

Grmver was the defendant‘s “enforcer” (T. 1906-1907) 

Page -37-

(9) alleged that the defendant had "shot people before" (T. 19Q8-1909) 

(10) called the defendant a liar CT, 1915, 1937, 1959, 1978) 

(11) alleged that the defendant's son is "terrrorized" of the defendant 

(T. 1926) 

(12) inquired about the defendant having broken his rmther's arm 

(T. 1930-1931) 

(13) questioned the defendant by alleging facts not in evidence 

(T. 1938-1939, 1941, 1943, 1946, 1988). 

(14) inquired abut the defendant having broken into his mother's 

house to get saw guns the day after the murders (T. 1947-1948) 

(15) accused the defendant of being well coached by his attorney 

(T. 1963-1966) 

The test for admissibility of evidence of other crimes or "bad acts" 

of the defendant is relevancy. Williams v. State, 110 So. 2d 654 (Fla. 1959). 

Such evidence is admissible if it is relevant to one of the essential or material 

issues framed within the charge being tried. 

(Fla. 2nd D.C.A. 1974). Here, the issue was whether the defendant aided and 

abetted the Ccamrission of the first degree murders of Richard Padgett, Nancy 

Sheppard, and Jody Dalton. 

miscellaneous acts of misconduct in order to show the defendant's mtive, intent, 

"degree of anger" (T. 291-293) and as a "conspiracy''. (T. 1071). Hmever, none 

of the acts of misconduct involve Padgett, Sheppard, or Dalton. Indeed, the 

defendant did not even kncsw Dalton before the mrning of February 7, barely 

knew Nancy Sheppard, and was a friend of Richard Padgett's. 

prosecutors could find no real mtive for the defendant to want to kill Richard 

Padgett, they sougltto invent one by innuendo, character assassination, and wild 

allegations unsupported by evidence. The m e 

fact that some of these incidents 

occurred on the same ws.kend as the mrders does not man they are relevant. 

-- 

Duncan v. State, 291 So. 2d 241 

The prosecutor sought to justify the use of these 

Because the 

Pack v. State, 360 So. 2d 1307 (Fla. 2d D.C.A. 1978): Johnson v. State, 432 

Page -38- 

See:

So. 2d 583 (Fla. 4th D.C.A. 1983). The fact that scerle of the incidents involwd 

witnesses called by the prosecution does not make them relevant. - Pack, supra; 

Donaldson v. State, 369 So. 2d 691 (Fla. 1st D,C,A. 1979); Groebner v. - SbtE, 

342 So. 2d 94 (Fla. 3rd D.C.A. 1977). 

In a criminal prosecution, a witnessT state of mind is irrelevant unless 

it supplies an essential elemnt of the airre. Thus, the fact that a store 

qloyee was suspicious of an accused because another qloyee had seen him 

steal before was irrelevant in a shoplifting prosecution. I_ 

bng v, State, 407 

So. 2d 1018 (Fla. 2nd D.C.A. 1981). EVidence that the defendant had shot Billy 

Long in 1980 in a domstic argummt was not relevant to the defendant's guilt 

in any way, shape, or form. 

any elmt of the crime of murder as it applies to the defendant, and was 

therefore irrelevant. 

mney f m 

Iog's alleged fear of the defendant did not supply 

Evidence of the defendant using or threatening to use force t~ collect 

persons other than the victims (Grmver, Anthony, Denise Long) was 

relevant solely to shm the propensity of the defendant to use force to collect 

money for drugs. 

under the W illiams rule. Green v. State, 190 So. 2d 42 (Fla. 2nd D.C.A. 1966). 

For this reason, evidence that a defendant had previously sold marijuana to the 

s m 

It is precisely this t p of evidence that is to be excluded 

informant was inadmissible because it "shaved only his propensity to sell 

marrijuana", €ache v. State, 326 So. 2d 448 (Fla. 2nd D.C.A. 1976), evidence 

shaving pmpsity to anm-Lit hcmmsexual acts is inadmissible in a horrosexual 

raps prosecution, Phillips v. State, 350 So. 2d 837 (Fla. 1st D.C.A. 1977), 

Andrw v. State, 172 So. 2d 505 (Fla. 1st D.C.A. 1965), and evidence tending to 

zhm propensity to carunit deviant sexual acts was inadmissible in a child rape 

-- 

prosecution, Coler v. State, 418 So. 2d 238 (Fla. 1982). 

The evidence that the defendant waived a gun atlbrris Johnson, argued 

with Ox Baker, fought with Brother Caps, and tried to shoot into Jerry Bmce's 

house, was even mre peripheral. Such evidence was not even related to collecting 

Page -39-

mnq for drugs, and shmd only a propensity towards violence in general, 

Attacking the defendant's character in such a fashion is wholly improper; 

appsllate courts have been quick to reverse convictions where less extensive 

evidence was introduced. See Perkins v. - State, 349 So. 2d 776 (Fla. 2nd D.C.A. 

1977); Chapan v. State, 417 So. 2d 1028 (Fla. 3rd D.C.A. 1982); Hunt v. State, 

429 So. 2d 811 (Fla. 2nd D.C.A. 1983); Greene v. State, 376 So. 2d 396 (Fla. 

3rd D.C.A. 1979). 

It is improper for a prosecutor to use cross-examination to intentionally 

get irrelevant and inflmtory evidence before the j q , Qzaplman v. State, 417 

So. 2d 1028 (Fla. 3rd D.C.A. 1982); nor my a prosecutor ask axqmund questions 

assuming facts not in evidence, Carter v. - State, 332 So. 2d 120 (Fla. 2nd D.C.A. 

1976); nor my he cross-examine by insult and innuendo, Qoeher v. State, 342 

So. 2d 94 (Fla. 3rd D.C.A. 1977), Stanton v. -r State 349 So. 2d 761 (Fla. 3rd 

D.C.A. 1977); nor may he cross-examine to bring out irrelevant acts of violence, 

- 

Witt v. State, 410 So. 2d 924 (Fla. 3rd D.C.A. 1982), Johnson v. State, 432 

So. 2d 583 (Fla. 4th D.C.A. 1983). 

The prosecutor here was guilty of all these 

shortcanhgs; his improper tactics were recognized by this court in Straiqht 

v. State, 397 So. 2d 903 (Fla. 1981). 

to, othm were mt. 

Sane of these improprieties were objected 

Some of the objections were sustained, others were not. 

The overall effect of the collateral crks, bad acts, and inproper cross- 

examination was t;o deny the defendant a fair trial by virtue of an overwhelming 

attack on his character and propsities. 

1234 (Fla. 2nd D.C.A. 1980). The remdy is a new trial. 

Page -40- 

See Albright v. State, 378 So, 2d

EXPW AND JTETIFY PLEA BARWWNG 

WITH ZHEIR Ca'I'NESSEs IXJRIK THE 

SELEcTIGl PRXESS, SO AS TO DENY ?IEE 

D m 

A FAIR TRLW BY AN IMP- 

Juw, IN VIOUTION OF THE FIFIM, SIXTH, 

AND z4mNmmE To THE u.s, 

mTITUT1m AND ARTICLE I, SECTION 9 

AND 16 OF THE FWRIIIA ~TI!I'UTION. 

Jbry selection in this cause began on February 28, 1983. (T. 341). The 

trial court reserved ruling on the defendant's Mtion for Change of Venue (T. 

341-347) and denied the defendant's kbtion for Individual and Sequestered Voir 

Dire. (T. 344-347). 

dire. (T. 361-362). The prosecutors repsatedly told the jury that three co- 

defendants had pleaded guilty, described the nature of their plea bargains, and 

sought to explain and justify their "dealing". (T. 436-442, 443-447, 659- 

663, 763-766, 848-849). 

inquiry (T. 436-7, 442, 444, 660-661, 765, 849). 

one venireman were to be questimed at once, defense counsel had difficulty 

keeping track of the prospective juror's nams (T. 463). 

questioning the venirenmen individuzdly, but was admnished by the court that 

questions had to be asked collectively, (T. 508-509). 

munsel's questions were prow, the court repeatedly admnished counsel to ask 

them collectively, of all twaty-one jurors. (T. 518-519). 

began prohibiting munsel from asking certain questions even though no objection 

had been raised by the prosecution. CT. 539-540). 

again admnished counsel to ask questions collectively, and defense counsel 

objected to the restrictions on voir dire and the procedure being followed. 

(T. 554-556). 

on the second day of jury selection (T. 584, 706-709, 718, 719, 724, 725). 

exchanges included the prosecution objecting on the basis that counsel was 

wasting the j q ' s th, due the juror being disqualified as a matter of law. 

(T. 718). 

Instead, twenty-one prospective jurors were seated for voir 

Defense counsel repatedly and vainly objected to the 

Due to the fact that twfmty- 

Qunsel began 

Despite finding that 

EVmtually, the court 

QI March 1, 1983, the court 

Additional adrmnishmmts in the presence of the jury occurred 

Tnis practice was in clear violation of the previous rulings by 

Page -41- 

Su&

the court relating to excusing such jurors for cause. (T. 78-83). The court 

began sustaining nondstant objections (21. 719) and personally accused counsel 

of "wasting time", a11 in the presmce of the venire. (T. 725). 

When a 

venireman used the wrd ''bribed'' in inquiring about plea bargained testdny, 

and counsel agreed, the prosecution objectd. (T. 729) * The prosecutor and the 

judge told the jury that no wibss had been bribed, and that m one had been 

paid for anything and implied bad faith on the part of defense counsel for 

agreeing with the characterization. (T. 729-731). 

state's witnesses were paid mney. (R. 464-465, T. 2526-2531). 

I_ 

Ironically, several of the 

It is elesnentary that a trial judge 'I.. . should endeavor to avoid the 

type of cmmwnt or remark that night result in bringing counsel into disfavor 

before the jury at the expense of the client". Hunter v. State, 314 So. 2d -- 

174, 175 (Fla. 4th D.C.A. 1975). Here, the trial court openly berated defense 

counsel for "wasting the'!, repeatedly adnmnished counsel to 'knove along" and 

to ask collective questions, and prevented counsel fran asking s m questions 

even where there was no objection by the prosecution. 

Similar conduct required 

reversal in Jones v. State, 385 So. 2d 132 (Fla. 4th D.C.A. 1980), and Jams 

v. State, 388 So. 2d 5 (Fla. 5th D.C.A. 1980). 

The lower court further violated its duty to app=ar W i a l 

camwnting on the credibility of state witnesses whose testimony had been 

pxchased. through plea bargaining. 

arrangerents as "deals". (T. 445, 660). 

by 

Even the prosecutors referred to their 

The wrd "bribe" is defined as 

(1) mney or favor given or pranked to a person in a position of 

trust to influence his judgmmt or conduct (2)smthing that 

serves to induce or influence. Webstex's New Collegiate Dictionq, 

G&C kkrriam Co.(8th ed. 1980) 

Clearly, a witness who testifies on behalf of the prosecution in 

exchange for a reduced charge and lenient treatmat has heen 'brikd" according 

to the C0Tmy)n definition. 

Defense munsel's agreement with the veslirenwz's 

characterization cannot, therefore, be considered so *roper as to require the 

Page -42-

type of rebuke counsel received. 

on defense OOwlsel, was also an inproper ccrlrment on the Credibility of the 

witnesses. 

This rebuke, in addition to thrming disfavor 

Since the credibility of these "bribed" witnesses was the central 

issue in the trial, the camxmts can hardly be considered to be harmless error. 

Judicial amrents on the credibility of a witness for the defense are always 

improper, and where itrelates to a critical issue, is reversible error. 

Parise v. State, 320 So. 2d 444 (Fla. 4th D.C.A. 1975); Cooper v. Stab, 376 

So. 2d 477 (Fla. 1st D.C.A. 1979); Wore v. ___L 

State, 386 So. 2d 590 (Fla. 5th 

D.C.A. 1980); m s , supra; cooper v. State, 413 So. 2d 1244 (Fla. 1st D.C.A. 

1982). 

while castigating defense counsel. (T. 2253). 

None of this would have occurred had the court not permitted the 

See: 

The prosecutor reminded the jury of this rebuke in his closiJlg m wt 

prosecutors to explain in detail the nature of theis plea bargains with their 

witnesses, to express their distaste for making deals, and to attarpt to justify 

it in the eyes of the jury. 

%is extensive questioning went far beyond the 

simple inqu- to determine possible bias that was approved in - v. State, 

418 So* 2d 989 (Fla. 1982). Here, the questioning was an attenpt tQ gain the 

jq"s advance approval for the deals they had made, as v d l as an attempt to 

get the venire to prejudge the credibility of the witnesses, by telling them 

what the participation of each co-defendantwitness supposedly had been. 

abuse of the voir dire process has been held to require reversal. 

- 

State, 253 So. 2d 465 (Fla. 1st D.C.A. 1971); and Hamon v. State, 394 So. 2d 

121 (Fla. 1st D.C.A. 1980), where PIC. Greene was also the prosecutor. 

Such 

See Smith v. 

The manner in which the voir dire was conducted in conjunction with 

the irrpropr questioning by the prosecutor and improper remarks by the trial 

judge, served to deprive the defendant of his right to a fair trial by an 

impartial jury, and his right to the effective assistance of counsel. The 

renvedy is a new trial.

During the course of swanation by both prosecutors, numerous prejudicial a& 

inflmtory resnarks w ae made: &jections were voiced to sme, though not 

all, of -t-hese cam-ents. In the state's first ar-t, the pmsecubr referred 

ta the defendant as a l'predator'l, one of "those sharks that feed off human 

misery producd by this drug culture, vicious, ugly, terrorizing, threatening 

hill". (T. 2127-2128) .Shortly thereafter,he called the defendant a %cious anhl". 

(T. 2131), *n a "wounded, .wounded vicious animal". (T. 2135) The defense 

motion for mistrial was denied, though an instruction to disregard was given. 

(T. 2136). The prosecutor the-n shifted his attack to the tactics of defense 

munsel, accusing the defense of giving a vague opening statement and then 

"constructing" the defendant's testimony. (T. 2140-2141). The defense motion 

for mistrial was denied; the court stated that the camrent was "proper". 

(T. 2141). The defendant'was then called a "devil1'. (T. 2142). Despite the 

fact that all the evidence shed there were only two guns used in these three 

bcmicides , the prosecutor said, "I tell you, I subit to you, there were guns 

everywhere before and after". (T. 2150). Cbunsel objected, but the prosecutor 

was permitted to continue tlx? argwrmt. (T. 2150). The defendant was again 

assailed as a "screaming (sic) evil person" who muld 'have a license to kill" 

if acquitted. (T. 2183-2184). The defense objection was over-ruled. (T. 2184). 

After the defense sumvation, T, ?Ziward Austin, the State Attorney for 

the Fourth Judicial Circuit, gave the rebuttal argument. 

He first accused 

defense counsel of laying down a 11sm3kescrea". (T. 2248). &W. Austin then 

Page -44-

utilized the stature of his office and told the jury that 'I.** we prosecute 

about 6,000 felony cases a year and e don't have t k 

to sit down and coach 

thn as much as Mr. Link wants you to think we sit down and coach them". 

(T. 2252). He tha further attacked defense counsel and the defendant: 

Mr. Link got up here and he accused us and you heard Judge Olliff 

the first day tell him not to use the phrase bribexy in addressing 

the State, and not using the vmrd bribery of (sic) getting Joan 

Bennett to testify. And the Judge told him, but he went on and 

did it. NCW, he's up to the mark, I man, in his zeal to get 

this killer off, he's going tm far. Because we haven't bribed 

anyhdy and that's not the proper phrase for a lawyer to use 

anyway. It's inproper type of conduct and he just went tm far, 

his zeal to walk this killer out of here for one reason. (T. 2253). 

The defense objections and mtion for mistrail was ignored; the court 

simply told the State Attorney to "proceed". (T. 2253-2254). At the end of the 

State Attorney's argmmt, defense counsel again objected and mved for a mistrial, 

again in vain. (T. 2277). 

In Wilson v. State, 294 So. 2d 327 CFla. 1974), the law amlicable to 

_. 

irrcproper pmsecutorial ccmmt was succinctly stated: 

The State points out that in s m instances there was an 

absence of objection iA the present trial and in other instances 

an objection to the Nmpr infexences was sustained. Such absence 

will not suffice where the cmts or repeated references are so 

prejudicial to the defedant that neither rebuke nor retraction may 

entirely destroy their influence in attaining a fair trial. Id. at 

329. 

The inproprieties in argument by the prosecutor should caprise textbook 

examples of what a prosecutor should not do in sumation: 

1). A prosecutor may not engage in Vitriolic naw-calling of the defendant. 

See Peterson v. State, 376 So. 2d 1230 (Fla. 4th D.C.A. 1979): "pushers"; 

'tslk''; Groebner v. -I State 342 So. 2d 94 (Fla. 3rd D.C.A. 1977): %burglar, 

vmmus, extortionist, a leopard who never changes his spts"; - bed v. 

State, 333 So. 2d 542 (Fla. 1st D.C.A. 1976): "dope peddlers"; Blunt 

v. State, 397 So. 2d 1047 (Fla. 4th D.C.A. 1981): "anhls belong in 

cages"; Wade v. State, 431 So. 2d 1031 (Fla. 4th D.C,A. 1983): "a real 

live murderer". Here, the defendant was called a I'predator", a "shark", 

Page -45-

vicious animal" a I'devil1', a "screaming evil person'' and a 

"killer". This murt reversed a first degree murder conviction in 

Johnson v. State, 88 Fla. 461, 102 So. 549 (1924), and eloquently stated 

the law: 

It is a delicate matter tm urdertake to restrict the argun-ent 

of counsel to deductions logically &awn frm the evidence, or to 

restrict his illustractions that my be drawn from a wide havledge 

of history and great leaning, or to confine his p as of imagination 

within the narrow limits of the facts supported by corpetent 

evidence upon the trial, but there are undoubtedly s m 1irrCitations 

to his freedam of spech. It is undoubtedly iqropzr in the 

prosecution of persons charged with crh for the representative of 

the state to apply offensive epithets to defendants or their 

witnesses, and engage in vituperative characterizations of them. 

Denouncing the defendant as a "brute" and asserting that he went 

"out there for what cats and dogs fight for," alluding either to 

the home of the deceased or the place where she was killed, was 

scarcely within the limitation of counsel's privilege in the matter 

of debate, andwhen used by an. officer of the ability and generally 

known competency and influence of the learned counsel for the state, 

cannot be said to be without prejudicial effect upon the defendant 

against whom the evidence was cosrrpellingly conclusive, to say the 

least. Id., at 550. 

The prosecutor's use of the term "smkescreen", is improper where it 

is, as here, intended to convey the impression of -roper rmtives or tactics 

of defense counse1. Westley v. State, 416 So. 2d 18 @la. 1st D.C.A. 

1982): Porter v. State, 386 So. 2d 1209 (Fla. 3rd D.C.A. 1980). 

3). It is improper for the prosecutor to m t on the mnsequences of 

the defendant king "set free" to infer future crirres, as was done here. 

- 

(T. 2183-2184). See Porter v. State, 347 So, 2d 449 (Fla. 3rd D.C.A. 1977) I 

Gomez v. State, 415 ,So. 2d 822 (Fla. 3rd D.C.A. 1982); Harris v. State, 

- 

414 So. 2d 557 (Fla. 3rd D.C.A. 1982); M3lillan v. State, 409 So. 2d 

197 (Fla. 3rd D.C.A. 1982): SimS v. State, 371 So. 2d 197 CFla 3rd D.C.A. 

1979); czlavez v. State, 215 So. 2d 750 (Fla. 2nd D.C.A. 1968); Grant v. 

- 

State, 194 So. 2d 612 (Fla. 1967). 

4). 

- 

It was improper for the prosecutor to venture his personal belief 

that there were mre t--han two guns involved in the homicides particularly 

where such belief was not ~~pp~ted by the evidence. (T, 2150). It was 

Page -46-

likewise improper for the State Attorney to place himself in a testhnial 

capaciq and give evidence to the jury as to how many cases he prosecutes, 

in an effort to dispel the indication of coached witnesses. (T. 2252). 

See Richmnd v. State, 387 So. 2d 493 (Fla. 5th D.C.A. 1980); G l a s m 

- 

v. State, 377 So. 2d 208 (Fla. 3rd D.C.A. 1979); Rmani v. State, 429 

So. 2d 332 (Fla. 3rd D.C.A. 1983). 

5). It is inproper for the prosecuting attorney ta carmvent upon the role 

or tactics of defense counsel in an effort to cast doubt on the integrity 

of the defense. Cmhran v. - State, 280 So. 2d 42 (Fla. 1st. D.C.A. 1973); 

Smon v. State, 352 So. 2d 125 (Fla. 1st D.C.A. 1977); -- 

Rx!d v. State, 

333 So. 2d 524 (Fla, 1st D.C.A. 1976). Here the prosecutor accused 

defense counsel of intentionally giving a vague opening statmt and then 

mnstructing the defendant's testbny around the state's case. (T. 2140- 

2141). The court magnified the error by describing the corrsn3nt as 

"proper". (T. 2141). The prosecutor made a very similar xgurrutnt in 

Hufham v, State, 400 So. 2d 133 (Fla. 5th D.C.A. 1981). Unlike the 

present case, reversal was not required inHufhm because of the lack of 

proper objection; the argument was ruled to be hrpro,w. Id., at 136. 

See also, Dyson v. US., 450 A. 2d 432 (D.C. 1982). 

_I 

?he State Attorney continued his personal attack upon defense counsel 

by characterizing counsel's summation (which was delivered without object- 

ion) as inproper conduct for a lawyer, stating that defense munsel had 

deliberately disobeyed an order of the court, and arguing that counsel 

had gone too far "in his zeal to get this killer off". (T. 2253). In 

carter v. - State, 356 So. 2d 67 (Fla. 1st D.C.A. 19781, the prosecutor 

accused defense counsel of trying to mislead the jury and of being 

''ahmst criminal" herself. In reversing the conviction, the appellate 

co&'s language is equally relevant here: 

Page -47-

The public interst is ill served by conduct such as fiat 

exhibited by the prosecuting attorney in this case. The 

right of a person accused of a crb to be represented by 

counsel and to be fairly tried is basic to the concept of due 

process. Iack of respect for this essential requirerwnt by 

an officer of the court cannot be tolerated, even. at the 

expense of requiring a new trial. Id., at 68. 

when considered in their totality, both prosecutors' sumations 

were prejudicial, inflamoatory, total&improper, and a virtual 'Inail 

order catalogue of prosemtorial misconduct". Peterson v. State, 376 

So. 2d 1230, 1233 (Fla. 4th D.C.A. 1979). See also, Harris v. State, 

414 So. 2d 557 (Fla. 3rd D.C,A. 1982); Jakson v. State, 421 So. 2d 15 

(Fla. 3rd D.C.A. 1982). Ihe remdy is a new trial. 

Subsequent t~ the trial and advisory sentencing proceeding in this 

cause, it came to defense counsel's attention that prosecuting attorney Ralph 

Greene had paid twenty dollars cash to three state witnesses, during the trial 

and before the witnesses testified. (R. 464, T. 2526-2527). Counsel had 

previously filed a bbtion for Prcducticn of Favorable Evidence (R. 44) and a 

Pbtion to Cayel Discoveq (R. 156-158). !the pmsecution admitted these adions 

at the hearing on defendant's ArrU3ndmrzt to Mtion for New Trial (R. 464-4651, 

but excused the paymtnts as "lunch mney". (T. 2527-2530). 

It is well settled that a withholding by the prosecution of -ledge 

of evidence known to be useful to the defendant, even though useful only for 

kirpachn-mt purpses, can be grounds for a new trial. Matera v. State, - 254 

So. 2d 843 (Fla. 3rd D.C.A. 1971), Pitts v. - State, 247 So. 2d 53 CFla. 1971). 

Page -48-

Payment of mney to a witness for any p-se is favorable evidence that bears 

on the credibility of the witnesses, 

1978). 

Antone v. State, 355 So. 2d 777 (Fla. 

When a pre-trial request for specific evidence is made (as was done 

here), and such evidence is withheld by the prosecution, a new trial must be 

ordered if the evidence 'fnight have affected the outm of the trial". 

V. State, 382 So. 2d 1205 (Fla, 1980): ___. U.S. v. agclrs, 427 U.S. 97 

(1976). 

Fyltone 

During the voir dire, a pmspectim juror, in the presence of the entire 

venire, iraquired about acromplice testimony and characterized it asl'brbribed". 

(T, 729). 

in getting the court to instruct the juror that "no one has been paid for 

anything". (T. 730). 

paid mney, and during s mtion stated that they had mt been given mney. 

(T. 2217-2219). 

When defense clounsel agreed, the prosecution objected and succeeded 

Defense counsel was unaware that any witnesses had been 

The prosecutor in argument stated that witness Joan Bennett 

had received nothing for her testhny ,(T. 2254), and castigated defense 

counsel for his use of the word "br-"'. (T. 2253). 

Had counsel knm of the cash payrrrents to witnesses, the prosecutor's 

indignation at counsel's use of the term would have m y hollm before the jury. 

Tb say that twenty dollars would have no effect on a witness's testhny when, 

by the state's own theory, three people were murdered over a fifty dollar drug 

debt, is contradictory. 

was material to mre than inpea-t of the witnesses themselves. Under the 

circumstances of this case, a cloud was cast over the defense frwn the outset 

of the trial, and remained there. 

The fact that cash payrrvents were Made to state witnesses 

Had the cash papnts been brought to the 

jury's attention, that cloud would have shifted tso the prosecution. 

Because the 

failure to reveal this favorable evidmce might have affected the a utm of 

the trial, reversal is mdated. 

Page -49-

ARGmENT VII 

THE TRIAL, COURT ERRED I" PFJWITTING THE PmFLTJIVF5 

To HEPEATEDLY ADVISE TJXF, JUW THaT (Xb- 

EUI"E PaRKER HAD PLEADED GUILTY AND HAD BEEN GI" 

A PI,&A BARGAIN IN EXCWWGE FOR HER TESTIMCM AGAINST 

THE DEFE"T, WHEKE ZHE cO-DEFET\naANT Was NUC CALLED 

AS A WITNESS DURING ?IIE: TRJXL, IN VIOLATIa OF ?HE 

D m ' S DUE: P-S RIGHT TO A FAIR TRIAL BY AN 

IMPARTIAL JUHY AS GUARANTEED BY THE FIFIH, SIXTH AND 

l ? O m 2YGNMXE 3D ?WE U.S . CONSTITUTION AND 

ARTICLE I, SECTIONS 9 AND 16 OF 'IHE: FLORIlX CDNSTITUTION. 

Wing the voir dire examination the prosecutors, over objection, were 

permitted to inform the jury that m-defendant Billy i3ng had pled guilty to 

second degree mder for &mting Nancy Sheppard in the head and killing her, 

that Joan Bennett had pled guilty to accessory after the fact of one nuder, and 

that Elaine Parker, "the f om wife of defendant Fbbert Tinker Parker", had 

pled guilty to second degree murder and '"may testify in this case". (T. 436- 

446, 659-663, 763-766, 848-849). The prosecutors called long and Bennett as 

witnesses, but did not call Elaine Parker. After the state rested, the defense 

mved for a mistrial on that basis. (T. 1667-1668, 1671). The prosecution 

responded that Ms. Parker might very well be a rebuttal witness (T. 1669-1671). 

Tne mtion f a mistrial was denied. (T. 1673-1674). After the defense rested, 

the pmsecutors did not call Elaine Parker as a rebuttal witness and the defense 

renewed its rmtion for mistrial. (T. 2052). The pmsecutxxs justified not 

calling Ms. Parker because the defendant "testified to what his wife would have 

testified -b either in mole or in part". CT. 2053-2054). In cross-examination 

and summtion, the prosecutors repeatedly called the defendant a liar, even 

*ugh Elaine Parker corroborated his testimny. (T. 1959, 2269). 

The general rule in that it is jlmproper for the state to disclose to 

the jury that anow defendant has been mnvicted. Jambs v. State, 396 So. 

- P 

- 

2d 1113, 1117 (Fla. 1981). In Wre v. State, 186 So, 2d 56 (Fla, 3rd D.C.A. 

1966), f3e court info& the jury that a m-defendant had pleaded guilty during 

a recess in the trial. In Thanas. v. State, 202 So, 2d 883 (Fla. 3rd D.C.A. 19671, - 

Page -50-

the prosecutor informed a juror once during voir dire, and once in opening 

statement, that an accamplice had been convicted. 

both cases. 

were permitted to explain in detail the nature of the plea bargain, to express 

the fact that Elaine Parker was the formzc wife of the defendant, and that shs 

was a potmtial state Witness testifying against the defendant. The court's 

instruction (R. 324) was hardly sufficient to erase the prejudice of telling 

the jury that the defendant's Tom wife, with whm he was living at the time 

of the offense, had made a deal with the state to testify against the defendant 

me remedy is a new trial. 

Reversal was required in 

Here, the error was much mre egregious, because the prosecutors 

AFGLJmNT VIII 

THE EYIDE2KE WAS INSUFFICIENT To SUSTAIN 24 

OF GUILW OF FIFST DEGREE MURDF,R 

As To COUNT I a? mE I N D I C ~ . 

!the general rule is that, where the only proof of guilt is circumstantial, 

no matter hm strongly the evidence may suggest guilt, a conviction cannot be 

sustained unless the evidence is inconsistent with any reasonable hypothesis of 

innocence. &Arthur v. -- 

State, 351 So. 2d 972 (Fla. 1977); -- 

Davis v. State, 90 

So. 2d 629 (Fla, 1956); Head v. State, 62 So. 2d 41 (Fla. 1952). A mmllaxy 

tc~ this rule is that the defense version of a hdcide must be believed if the 

circumstances do not prove that version to be false. 

2d 899 (Fla. 1954); MSrthur, supra, at 976, footnote 12. Here, there was m 

contention that the defendant himself killed or stabbed the deceased, Rjchard 

Padgett. (T. 914) 

1.832-1833) . 

1636). 

-- 

As to Count I, the undisputed evidence showed: 

Mayo - v. State, 71 So. 

(1) that Padgett med mney to Graver, not Parker (T. 1141, 

(2) that Padgett and Paxker were frieslds (T, 1138) 

(3) that there was bad blood between (kcover and Padgett (T. 1138, 

Page -51-

16 8 6-1 6 8 7) 

(T. 1390) 

(4) that Grmver went looking for Padgett With a shotgun (T, 1183, 

(5) that Padgett cam over to the defendant's trailer voluntarily 

(6) that the defendant told Padgett, at his trailer, that "everything 

was all right". (T. 1392) 

(7) that Padgett was not upset while at the trailer IT. 1393, 1834) 

(8) that Padgett was not up& or mmemed when long drove he and Nancy 

Sheppard back to the Sugar Shack, because he "had i+t taken care Gf", (T. 1249, 

1394) 

(9) that Padgett was not forced ta go with the defendant, Gmover, and 

Elaine Parker frm the Sugar Shack (T. 1395) 

(10) that the defendant brought Padgett into W l 

Groover beat him up, to clean his injuries (T. 1468-1469) 

(T. 1472) 

Barton's house after 

(11) that the defendant did mt threaten Padgett in Barton's trailer 

(12) that the defendant did not give the gun to Gmover in Eiarton's 

trailer (T. 1471-1472) 

(13) that the defendmt was already outsi&e when Gmver threatened to 

kill Padgett (T. 1473) 

(14) that the defendant melted d m the 

weapon (T. 1482-1484) 

(15) that Gmover's knife was used to stab Padqett (T. 1495) 

(16) that Ccmver admitted cutting Padgett's throat (T. 1494) 

(17) that the defendant 'cold Grower that he did not kixw Padgett was 

going tn be killed, and that he thought Padgett was going to k left. in the woods 

to walk bm (T. 1494) 

'fie evidace therefore corrbrates the defmdznt's testhny that 

Padgett voluntarily accmpnied he, Elaine, and Grmwer, at least until they left 

Carl Barton's trailer. There was no evidence that the defendant knew Groover had 

Page -52-

the fiream or threatened Padgett with it I 

The only evidence as to what 

happened after leaving Carl Barton's trailer was the defendant's testmy, 

which could not Ix rebutted by mahe Parker. (T. 2053-2054, 2056-2058). 

?he defendant's t sthny indicates that he and Elaine agreed to take 

Padqett into the to leave him there. (T, 1844). Since there was no 

intent by the Parkers to "terrorize" or inflict bodily harm on Padgett, this 

conduct, at mst, constitutes false imprisomt. 

occurred during the carmission of this felony, the defendant would only be guilty 

of third degree mder (assuming his defense of independent act, a question 

for the jury, failed). 

Since the killing of Padgett 

Here, the state's entire case was based on argurrent that the defendant's 

version was mt true. 

other than the defendant's. 

testified to by the defendant, and most idepdent evidence mrroborated the 

defmdant's testinmy. 

the hdcide nust be accepted, 

There was no other version of Padgett's mder in evidence 

There was no evidence to disprove any material fact 

Under such cirmtmces, the defendant's version of 

Wright v. State, 348 So. 2d 26 (Fla. 1st D.C.A. 

__- - --- 

19?7), Map, supra; Holton v. State, 87 Fla. 65, 99 So. 244 (1924); .-- Kelly v. 

State, 99 Fla. 387, 126 So. 366 (1930). Flhere the defendant is charged as an 

aid- and ahzttor, circwnstmtial evidence relied upan t~ shw his intent to 

participate must preclude every reasonable inference that he did not intend 

to participate. 

K.W.U. v. State, 367 So, 2d 647 (Fla. 3rd D,C,A. 1979). 

Mere presence at the scene of the c rk and efforts tn amid detection aftej-wards 

is not sufficient ta justify a conviction. 

D.M. v. - State, 394 So. 2d 520 

(Fla. 3rd D.C.A. 1981); J. J. v. State, 408 So. 2d 641 (Fla. 3rd D.C.A. 1981). 

?he statels case against the defendant in bunt I was based on conjecture, 

insult and innuendo. The remedy is to reduce the judgment to a conviction of 

third degree murder, 

Page -53-

'ME: TRI% mLJlT2 EXRED IN m I N G INXI 

EVIDENa, OVER OBJECTION, TESTIKNY 

QF A WITNESS WHFBJ3 ZHF: STAm BREACHED ITS 

DUTY TO DISWE HIS "43 AND ADDRESS AS 

WUIRED BY F'LL R. GRIM. P. 3.220 (a) (1) 

(i), AND THE couI-2T FAILED TO COFiiXJCT AN 

INQUIW INTO 'ME CIFCLEETAJKES SURROUNDING 

THE DIS- BF?EACX. 

Ln an attenpt to rebut the tesmny of defense witness Richard Ellwood, 

the prosecution called Pete Mittleman, a detective wi.th the Jacksonville 

Sheriff's Office. (T. 2041-2044). The defense was not furnished with ktective 

Mittlm's name until the &y he was called as a rebuttal witness. (T. 2013) 

Bfevlse counsel objected because the witness "was not list& on discovery until 

tdy". (T. 2014, 2037). The lower court ignored this objection, considered 

the admissibility of the testhny on othm grounds, and allawed the witness 

to testify over objection. (T. 2037-2040). 

mere the prosecution atterrpyts to call a witness not listed on dismveq, 

the trial court must hold a hearing to mike an adequate inquiry into whether 

the state's violation of the rule was inadvertent or willful, whether the 

violation was trivial or substantial, and what effect, if any, it had upn the 

ability of the defendant to proprly prepare for trial. 

Richardson v. State, 

246 So. 2d 771, (Fla. 1971); Wilcox v. State, 367 So. 2d 1020 (Fla. 1979). 

When the defense interpses an objection, it is error to pennit an unlisted 

witness to testify without holding a Richardson hearing. Boynton v. State, 378 

So. 2d 1309 (Fla. 1st D.C.A. 1980); Lightsey v, State, 350 So. 2d 824 (Fla. 2nd 

D.C.A. 1977) ; Garrett v. State, 335 So. 2d 876 (Fla. 4th D.C.A. 1976). Once a 

discovery violation is brought to u7E: trial cowt's attention by objection, it 

is the murt's duty to I.llake a full inquiry into all the circurrstances surrounding 

the breach t.n determine whether the defendant has be& prejudiced by the state's 

Page -54-

from the operation of discowry rules, and a Richardson hearing is required to 

determine &ether unlisted rebuttal Witnesses my testify. Kilpatrick v, State, 

376 So. 2d 386 (Fla. 1979); Fascnnyer v. - State, 383 So. 2d 706 (Fla. 1st. D.C.A. 

1980); Wibner v. State, 394 So. 2d 1096 (Fla. 1st D.C.A. 1981). 

Here, the prosecutor himself brought the discovery violation tn the 

murt's attention in order to "save tine because IW. Link is going to object 

to him being called". (T. 2013). 

of the violation, defense counsel objected b the witness's testhny on tm 

grounds, one of mi& was the discovery violation. (T. 2-13-2014). 

inanbent upn the trial court to conduct a Eaiclkdson hearing at which it 

was the state's burden to affinnatively show that the defense was not prejudiced. 

- 

&Clellan v. State, 359 So. 2d 869 (Fla. 1st D.C.A. 1.978); Lavigne v. State, 

349 So. 2d 178 (Fla. 1st D.C.A. 1977). 

After the prosecutor stated the circumstances 

It was then 

It is never hamiless error where a Richadson hearing is required but 

not had, Wie, supra, unless cirdnstances establishing non-prejudice to the 

defendantafhmtivdy appr in the record. 

(Fla. 5th D.C.A. 1983). 

Witnesses who were friends or relatives of Ellwmd's to testify that FJlwmd had 

a gaod reputation for truth and veracity, had the prosecutor cclmplied with the 

discovery rule. 

detective's deposition, or at least interviewed him, in order to properly 

prepare a cross-examination, to investigate the basis of the detective's opinion, 

or to investigate the detective's crwn reputation. 

Fla. R. Grim. P. 3.220 by the prosecution, defense counsel had no opportunity 

to counter the effect of the detective's testhny. 

- Poe v. State, 431 So. 2d 266 

Defense counsel here could have attwted to locate 

With adequate notice, defense counsel could have taken the 

Because of the violation of 

The prosecution took full 

advantage of the situation in closing argurmt, referring to Ellwood as a 

"pathological liar". (T. 2270). n-Se prejudice to the defense is evident; the 

r d y is reversal. Richardson, supra; Cmbie, supra. 

Page -55-

ZHE TRIAL COURT ERRED IN m G A POLICE 

D m To TESTIFY A3 M ?HE REPU'IRTION 

OF DEFENSE WITNESS RICHARD ELTNmD FOR TRUTH 

AND VERACITY, IN VIOLATION OF 90.609 I FLa. 

STAT. (1981) I AKI'ICLE: I, 9 OF T€E mFSlY4 

CONSTITUTION AND THE FIFTH AND F'O- 

AMENDMEN% 'ElE U.S . CONSTITUTION. 

lb rebut the testimny of defense witness Richard Ellmd, the prosecution 

called as a witness P. R. Mittld, a detective .With the Jacksonville Sheriff's 

Office. (T. 2041-2044). The officer testified that he was a burglary detective 

bho had known Richard Ellmod since Novarker of 1981, that he was able to learn 

Ellwood's reputation for truth and vexacity, and that it was "extraly bad". 

(21. 2042). 

In order to lay a predicate for the detective's testhny, a 

proffer was had out of the jury's presence.(T, 2027-2036). 

Mittleman testifiec 

that he m t Ellwmd because he had arrested him for burglary. (T. 2028). 

Mittleman stated that he had been involved in investigating Ellwmd's criminal 

activities fran Noverrkr 1981, through the date of the trial, and that based on 

his investigation he had learned that Ellwood had a bad reputation for truth 

and veracity. IT. 2032). Mittlm admitted that he was neither Ellwood's 

friend or neighbor, nor was he an associate of any of Ellwmd's friends or 

neighbors. (T. 2032-2033). 

neighbors of the defendant, and that saw of them resided in the Jacksonville 

mmrunity, (T. 2033-2034, 2036). 

Mittleman stated that he had spken to friends and 

Reputation as to a witness truthfulness is admissible as impeachrnmt, 

5 90.609, Fla. Stat. (1981). 

for truth and veracity rrrust be bottmed u p 

cwnwu?ity of residence and neighborhood. 

So. 73 (1927); 

3d D.C.A. 1975). 

The general rule is that testhny as to reputatJn 

Florida East Coast Railway Co. 

the reputation in th.e pxson's 

Stanley v. State, 93 Fla. 372, 112 

v. - Hunt, 322 So. 2d 68 (Fla. 

Witnesses are not generally qetent to testify as to a person's 

reputatLon unless they are neighbors or people in the corrnnuzity in which he 

Page -56-

I resides. Stanley, supra; - Florida East Coast Railway Co supra, An exception 

to this rule was rerognized ih HatnUton v.'State, 129 Fla. 219, 176 So. 89 

(1937). 

- 

In Hamilton, there was a showing of an unavailability of reputation 

Witnesses from the cmrmnity or neighborhmd where the person lived, and a further 

showing that the person was well known mng the: people with whcan she mrked. 

Based an such evidence, it was held that co-wrkers should have been pmnitted 

to testify as reputation witnesses. 

The Hamilton exception requires proof that residents of the person's 

ccawrrunity are not available before others will be permitted to testify as to 

- 

the person's reputation. In Hawthorne v. State, 377 So. 2d 780 (Fla. 1st D.C.A.1979) I 

it was held to be error for the trial murt to admit the testimny of four 

witnesses as to the reputation of the victh based on having seen him where he 

worked, or at a service station and at a b arb shop where he traded, because 

the state did not prove that testhny frm the ccannavlity where the victim 

resided was unavailable, 

witnesses fran Ellwood's neighborhood or cxrrmnunity =re unavailable; to the 

contrary, the evidence shaved that friends and neighbors did exist and still 

lived in the Jacksonville -unity. (T, 2033-2034). me detective knew persons 

in Jacksonville who knew Ellwood whm he was living in Jacksonville. (T. 2036). 

There was no evidence that any attenpk had heen made to locate those persons, 

or that they were unavailable. 

As in HavYthorne, the state mde 110 showing that 

&e prosecution tried to justify the use of Detective Mittlemn because 

"he learned it through hard work and investigating the individual". CT. 2037). 

In effect, the prosecution was seeking to Use Mittleman as their "q~" 

on Richard Ellwd. 

invades the province of the jury and is clearly inadmissible. 

Valdez, 353 So, 2d 1257 (Fla. 3rd D,C.A. 1978); GeneTal Telephdrle Coo v. Wallace, 

417 So, 2d 1022 (Fla. 2nd D.C,A. 1982), 

Such "Pqxxt OpirZrian", whether offered as such or mt, 

Page -57- 

Lamazares V, 

It is inappropriate far one who is a

detective QT stranger sent out to learn the character of a witness to be &tted 

to testify as to the result of his or her inqyiriese 

So, 2d 187, 192 (Fla, 3rd D,C.A. 19771 * 

Stripling v. T- State, 349 

The fact that Mittlanan m y not have been 

"sent out" to leam ~llmd~s reputation while investigating him is irrelevant; 

Mittlm was rmt a neighbor or resident of any cxmmmity in which Ell& 

- 

resided, and he was certainly "sent out" to learn ___r_ 

abut him, 

In B&er v. State, 294 So. 2d 392 (F'la. 4 D,C,A. 19741, and Bmks 

-* 

v. State, 381 So. 2d 326 (Fla. 5 D,C,A, 19821, trial ccjurts pdtted police 

-_I".. 

offimr, to testify as to the defendant's bad reputation for truth and veracity. 

Trial counsel made no objection in either case to the ccgnpetenq of the officers 

to testify, These cases are no suppart for the state's position. me conviction 

in Emles was reversed kcawe the officers were permitted, over objection, "to 

state that they would not. believe the defendant under oath. It was held that 

permitting such testimony was not harmless error becauser 

Police officers, by virtue of their position, rightfclly 

bring wj-th their testirmny an air of authority and 

legithq. A jwy is inclined to give great weight to 

their opinions as officers of the Law ... Id. at 328. 

it would k an extramly pox precedent in the law ta permit police 

officers who do not reside in a person's camunity of residence and neighborhood 

~ testify 

as to that prson's reputation for truth and veracity. This is 

particularly true in a criminal case where the witness is the defendant or, 

as here, a jail inmte. Flherc there are close ties between the reputation 

witnesses and the matter in cont.zrover~, such "testhmny" k ms, not ''general 

reputati.on", but reputation as viwd under the predcanjnant cloud of the specific 

mntmversy at JELand. 

Florida &st Coxst Railway Co,, supra, at 69-70. In a 

criminal case, it would be a rare occasion indeed "ht a policeman would feel 

cxnnfortable testifying that a defendant or a defense wi%ness had a g& reptation 

for truth ard veracity, because it wuld Ix as much as telling the jury that the 

police were wrong and the defendant innocent, 

Page -58-

Pernutting the reputation testby. of Detective mi;ttlm ws error. Ihe 

evidence was dmmgbg because FJ1wdvs testinmy was that silly Lmq had told 

him that the defendant was not involved in the mder of Nancy Shepard, and that 

The remedy is a new trial. 

During the prosecutor's cross-examination of defense witness Richard 

Ellwood, the prosecutor inquired into the nature of the witness's prior convictions, 

response to the hterrogation. IT. 1780-1781) 

lzle rule in Florida has long been established that any witness who testifies 

of the convictions for the direct examiner to first aEk these questions. 

Leonard v. Skte, 386 So. 2d 51 (Fla. 2d D.C.A. 1980). No additional questioning 

is pxmitted. IkArthur v. - Cook, 99 So. 2d 565 (Fla. 1957), Mnard, supra. 

The interrogation of a critical defcmse witness Fy the prospcution to the 

extent that the witness asserted his privilege aqainst Felf-incrimination was 

clearly irclDroEr and was certainly'damgkg to the wit-necsq rredibility. 

his testbony was. that: Billy Lnng had told him that FDbert Parker did not 

Recause 

participte in Nancy Sheppard's &er, his credibility was most important to the 

Page -59-

defense. The prejudice is evident, The remedy is a new trial. 

Trim TRIAL COUHI: EmED IN l?EmaTrING THE 

P~EXXITOR M WCIT FROM DEFENSE WITNESS 

RICHARD ELWaD THAT TEE REMAINED 

SILENT AJSD DID NOT DISCUSS HIS CASE WIZILF, IN 

JAIL AWJTING TRIAL,, IN VIOL3TION OF THE FIETH, 

SIXTH, AND FOURTEE" AImmaNm To m u s. 

CONSTImON AND ARFICLE I, SECTIONS 9 AND 16 

OF 'IZIE: FLORIDA CONSTITUTION. 

Wing the cross-examination of defense witness Rihd Ell-, the 

prosecutor asked the witness what the defendant had told him, and elicited 

f m him the fact that the defendant did not assert his innocence while 

awaiting trial in the jail and that the defendant did not discuss his case at 

all. (T. 1787-1788). The prosecutor called attention to the fact that the 

defendant had said nothing, and that he had not asserted his innocence in talking 

to a fellow inmate of the jail while awaiting trial and inferred that an inncent 

pan muld not have said nothing. (21. 1787-1788). 

In Willinsky v. State, 360 So. 2d 760 @la. 1978), this court discussed 

the right of an accused to be free flm feax of attack by the use of post-arrest 

Impeachmxlt by disclasure of the legitimate exercise 

of the right to sllence is a denial of due process. 

It should not be material at what stage the accused 

was silent so long as the right to silence is protected 

at that stage. The language in Dcryle v. Ohio, 426 U.S. 

610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) and United 

States v. - Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 

2d 99 (1975), although set in the context of silence at 

arrest, reflects a general policy. me essence of these 

holdings is that mchmnt by disclosure of the exercise 

of the right to silence is a denial of due process. The 

general terms used by the Supra Cburt of the Lhited 

States are not limited to arrest, but apply at any stage 

where the right to silence is protected. Bid., at 762. 

The defendant's right to ramin silent had clearly attached where he 

was an inmate of the jail awaiting trial. 

His refusal to discuss his case with 

other inmates, or even his silence in the face of accusation by an inmate, has 

Page -60-

little probative value w kn it is considered that the defendant was charged with 

a serious crime, represented by counsel, and mdaubtedly had been told by counsel 

not to talk to anyone about his case. To use the silence of the accused under 

such cirmtances is highly prejudicial; such prejudice certainly outweighs 

any probative value. See I__ 

426 U,S. 610, (1976). 

U.S, v. - Hale, 422 U,S. 171, (1975); Ibyle v. _I_ 

Ohio, 

A prosecutor may not use the fact that an accused's attorney is the only 

person to whom he has spoken about his defense since his arrest, as evidence of 

- 

guilt. Flynn v. State, 351 So. 2d 377 (Fla. 4th D.C.A. 1977): 

Terrence v. 

State, 430 So. 2d 489 (Fla. 1st D.C.A. 1983). It is likewise improper to infer 

guilt fran an accused's silence based on his attorney's advhe, Weiss v. State, 

341 So. 2d 528 (Fla. 3rd D.C.A. 1977), or his silence when a third party makes 

a contradictory statmt in his present. Brooks v. State, 347 So. 2d 444 

(Fla. 3rd D.C.A. 1977). 

The prosecutor here intentionally used the defendant's post-arrest 

silence to infer guilt. 

requires reversal. 

%is misuse of the defemt's right to remain silent 

AFGm XI11 

THE TRTAL Courrr FJW3.D IN PERMITI'ING THE PEEOSECU'IOR 

To CROSS-EXAMTNE THE DEzlmmm, OVER OaJECTION, AJ3m 

ZWE NUMBER OF TIMES HE HAD CONSULTEXI WITH DEFENSE 

C"SEL, AND ABOUT PIE FACT THAT HE HAD CcNSULm WITH 

DEFENSE COUNSEL DURING A RECESS IN CRCfjS-WSMINATION, 

Ill VIOLATION OF THE EIETH, SIXTH, AND FouRT]EENTH 

KmNmEwm To THE U.S. CoNsTImm AND ARTICLE I, 

SEXTCONS 9 AND 16 OF THEEDRIRA CONSTITLJTION. 

While the defendant was on the witness stand, the murt took a recess 

during crossdnation. (T. 1953-1957)" After the recess, the prosecutor 

questioned the defendant about the fact that he had consulted with defense 

counsel during the recess, (T, 1963). The defense abjection and mtion for 

mistrial was mr-ruled, and the court permitted further cross-examination about 

haw many ths the defendant had consulted with munsel. (T, 1963-1966). 

Page -61-

The questioning inferred that the defendmt's testbny was the prduct of 

krpropr influences by defense mm~l (T, 1963, 1966, 1977) 

The r2ght of a defendant in a csirninal prosecution to have the effective 

assistance of counsel is absolute and is required at every essmtial step of 

the procedhgs. Gideon v. Wainwight, 372 U.S. 335, (1963); Well v. Alabama, 

287 U,S, 45, (1932), This right to cowrsel includes the right of the defendant 

to consult with counsel during a recess in his cross-examination, no matter haw 

brief: the recess. 

State, 349 So. 2d 187 (Fla. 3rd D.C.A. 1977); Was v. - U.S., 425 U.S. 80, 

(1976). 

Bova v. State, 410 So. 2d 1343 (Fla. 1982); Stripling v. 

In the instant case, the prosecutor brought out the fact that counsel had 

consulted with the defendant during the recess in an effort to infer kpropriety 

on the part of defense counsel to irpsach the defendant. 

The prosecution 

justified the questioning because, "He's just like any other witness when he's 

on the witness standq1. (T, 1965). This notion that a defendant in a criminal 

case is a witness like any other person when he takes the stand is patently 

erroneous. Stripling, supra; Geders, supra; - Bova, supra. 

It is well settled that a defendant my not be cross-examined about is 

assertion of his Fifth Awndmsnt right to ramin silent at any stage when that 

right is protected. 

v. State, 360 So. 2d 760 (Fla, 1978); Bennett -- v. State, 316 So. 2d 41 (Fla. 

1975). 

Simpson v. State, 418 So. 2d 984 (Fla. 1982); W illinsky 

Likewise, &~XI an accused requests the advise of counsel after king 

given Miranda warnings, the fact that hb asserted his right to counsel may not 

be used against him in Cross-eXamination or rebuttal. 

2d 496 (Fla. 4th D.C.A. 1976); Wcia v. State, P 351 

1977); Burwick v. State, 408 So. 2d 722 (Fla. 1st D.C,A. 1982). 

Zkee v. State, 330 So. 

So. 2d 1098 (Fla. 3rd D.C.A.

- 

The fact that a defendant refused to testiQ at an adnrinistratiye hewjxlg based 

an his attorneyk advice is also not a propzr subject far cross-examination, 

Weiss v. State, 341 So. 2d 528(Fla. 3rd D,C.A, 1977). 

__I - 

The prosecutor here sought to jmpeach the defendant by interrogating 

him about the fact that he had aercised his Sixth Bmmd-rent right to counsel during 

the recess, and had consulted with his attorney on nmerous other occasions. 

The prosemtor then used the fact that the defendant had exercised a constitutional 

right to infer that he was fabricating his testbny, Because the defendant 

had an absolute right to consult with counsel, and counsel had a duty to consult 

with the defendant, the cross-examination lacked any real probative value. 

Because it both penalized the defendant for the exercise of a fundamental right 

and inferred impropriety by defense counsel (l'Coaching"), the cross-examination 

- 

was highly prejudicial. See Dyson v. - U.S., 450 A. 2d 432 (D.C. 1982); 7 

Hale, - 422 U.S. 171, (1975). The renuedy is reversal, 

THE TRZAL COW ERRED IN DENYING ?HE m ' S 

m10N To SuppRESs sm-, ~SSICINS, AND 

CONFESSIONS AND IN PERMITI'ING ?HE STATE TO USE 

THEE S m m IN IT5 CASE IN MI=, IN VIOLRTSO" 

OF THE: FI'FTH, SIXTH, AND l ? O m 

TO 

THE U.S. CaNSTIrnION AND m1aE I, S m O N 9 APJD 

16 OF THE CONSTITUTI~ OF THE STaTE OF FIQXM. 

U.S. V. 

Q-L June 25, 1982, the lmer court heard evidence on the defendant's 

lbtion to Suppress Statements, Admissions and/or Confessions. (R. 64, 82: 

T, 194-217). The only witness in the hearing was Detective John madley of the 

Jacksonville Sheriff's Office, who testified that the defendant was arrested 

pursuant to an arrest warrant in his parents' junkyard on February 11, 1982, 

(T. 199-200). The warrant was for an aggravated assault on Lewis EkadPey.(T. 200- 

201, 203), mere was no probable cause to arrest the defendant for any 

hcmicide. (T, 206-207) 

Bradley testified that the defendant was initially detained by other 

Page -63-

officers who had their guns. dram, IT, 207-2081 

with Xs gun drawn, told him to put his hands upr and handcuffed hjm. (T. 208) 

After he was handcuffed, a uniformed officer searched him, (T, 208-2091 

Before the defendant was placed in the back seat of a patrol car, he was told 

that he was under arrest. (T, 200, 209). 

a patrol car and sat there while Bradley talked to Spencer Hance, who was also 

at the junkyard. (T. 200). After talking With Hance, Bradley went back to the 

patrol car, sat in the front seat, and began talking to the defendant. (T. 

200-201). 

Bradley approadxd the de€endant 

The defendant was placed in the back of 

It is undisputed that neither Detective Bradley my anyone else had 

advised the defendant of his constitutional rights as required by Miranda v. 

Arizona, 384 U,S. 436, (1966). (T. 201-202, 210). The detective sumnarized 

the facts of the aggravated assault incident as he knew them. (T. 209-210). 

response to this s m , 

against him in trial. (T. 201, 203-204-1650). 

the defendant made the statements that were introduced 

In Miranda, supra, the~supreme Court of the kited States established the 

procedural safeguards to be eng3loyed prior to the admission into evidence of 

any statmts of an accused Made while in police custody: 

(W)e hold that when an individual is takm into cus2;ody 

or otherwise deprivd of his freedm by the authorities 

in any significant way and is subjected to questioning, 

the privilege against self-incrimination is jeopardized. 

Procedural safeguards must be employed to protect the 

privilege and unless other fully effective mans are 

adopted to mtify the person drf his right of silence and 

to assure that the exercise of the right will be 

scrupulously honored, the following rneasures are rquired, 

He must lx warned prior to any questioning that he has the 

right to m i n silent, that anything he says can be used 

against him in a court of law, that he has the right to 

the presence of an attorney, and that if he cannot afford 

an attorney one will hz appointed for him prior to any 

questioning if he so desires, Ibid, at 478-479. 

The prosecution in the lower court contended that there was no questioning 

of the defendant, so the statmmts were admissible wen though no M.iranda 

warnings were given. (T, 216-217), 

Such an argument ignores the fact that 

Wanda is not limited to express questionb-ig by plice of a suspect in custody. 

Page -64- 

In

The United States Supre court has stated the test ta be applied under such 

circumstances: 

Tt is clear therefore that the special procedural safeguards outlined 

in Mirmda are required not where a suspect is simply taken into 

custody, but rather where a suspect in custdy is subjected to 

interrogation. 

l'Interrogation'', as oonceptualized in niranda 

opinion, must reflect a measure of cqdsion above a n m d 

that inherent in custody itself. 

We conclude that the Miranda safeguards c m into play whenever 

a person in custdy im&d 

to either express questioning 

or its functional equivalent, mat is to say, the term "interrogation" 

under Miranda refers not only to express questioning, but also to 

any words or actions on the part of the police (other than those 

nomlly attendant to arrest and custody) that the police should 

knaw are reasonably likely to elicit an incriminating response f m 

the suspect. m e Island v. - Innis, 100 S. Ct. 1682, 1689- 

90 (1980). 

- 

The term "incriminating respnse" means any response, inculpatory or exculpt~ry, 

that the prosecution may seek to intrduce at trial. Innis, supra, at 1689, 

footnote 5. 

Here, Detective Bradley did not advise the defendant of his rights when 

the defendant was arrested, handcuffed, searched,and placed in a patrol car. He 

instead walked away and interviewed a witness, then returned and began speaking 

to the defendant. He did much mre than sinply advise the defendant he was 

under arrest for aggravated assault. 

as he believed them to be. 

"reasonably likely" to elicit an incriminating response. 

He gave the defendant a sum~lry of the facts 

%is is previsely the sort of statemnt that is 

confronted by a description of the c r h he has been arrested for, will nomlly 

be to deny, explain, or adnit one or mre of the facts described, 

The reaction of sawone 

advised of his rights could the defendant be expected to make an intelligent 

decision as to whether to respond to the allegations made by the detective, 

Without being told that any response will be used against him, the average 

Only after being 

citizen would feel corrrpelled to give sane respnse. 

A similar interrogation tactic was utilized by a &ice officer in - Jon& 

- 

v. State, 346 So. 2d 639 (Fla, 2nd D,C.A. 1977). 

In J?n?s, the defendant, 

after being'advised of his rights, asked to talk to his attorney. The officer

then ''told him what I had through investigation lmed, I' and the defendant 

- 

corrected the officer, Jmes, sqra, at 639640, The explanatory staterrents 

mde by the defendant were suppressed because it was obvious that the police 

officer was subtly trying to obtain incriminating statments. 

The state cannot justify the use of the sarne tactic mdm& in Jones 

simply because it occurred prior to giving Mirarlda warnings rather than afterwan 

The tactic is mre likely to elicit a response when used as Detective Bradley 

did here, Without benefit of Miranda at all. 

To permit the use of such tactics 

to obtain statmnts from arrested suspects muld ''place a p rdm on the 

ingenuity of the police to devise mthds of indirect interrogation, rather than 

to i.qlemen-t: the plain mdate of Ivliranda". 

3, quoting from comnoriwealth v. Hamilton, 445 Pa. 292, 297, 285 A. 2d 172, 

175, 

Innis, supra, at 1689, footnote 

--r*- 

This practice cannot be condoned, The defendant's statants to Bradley 

should be been suppressed. kvasal is mandated. 

THE TRI74L COURT EXRED IN PEXFUIITTING THE STATE 

TD USE 7HE D ' S S T F i m M E AT HIS 

AFBEST FOR AN UNREXATED OF"SE AS JWLDENCE OF 

GUILT, AND IN SO INSTRUCTING THE JUHY, IN VIOLATION 

OF 'IHE DEFENXNT'S DUE PEEOCESS RIW To A FAIR 

T R Y Y ; A S G U A R A N T E E D B Y T H E ~ ~ ~ T O 

THF, U.S . M>NsTImIoN ?WD AETICLE 1, SECTION 9 OF THE 

JXORIDA CQNSTITUTION. 

me state introduced, through the testhny of Etective Bradley, 

allegedly false exculpatory statmats that were mde when the defendant was 

arrested by Bradley for an aggravated assault against Lewis Bradley. IT. 197- 

198, 200-201, 1650). The statants were made in response to Bradley explaining 

to the defmdant the circmnsbnces of the aggravated assault incident as he knew 

it. (T, 209-210), The trial court granted, over objection, the State's 

&quested Jury Znstruct2on No, 7 (R, 323, T, 2098-2102, 2122-2123)" 'Ihe 

prosecu~r argued the statmmts as evidence of guilt. (T, 6165-2166, 21771 

Page -66-

'BE general rule is that statements of a defendant that relate to 

collateral tribes are inadmissible unless relevant tc~ p m 

any facts in issue 

More the jury. Green v; SWte, 190 So. 2d 42 CFla, 2nd D,C.A. 1966); Curry 

_*_ _Ice 

v, State, 355 So. 2d 462 (Fla, 2nd D,C,A. 1978) I A statement is not relevant 

simply because the defendant was heard ta utter it, wen though it my have to 

do with the offense for which the defendant is m trial, Jenkins v. State, 177 

So, 2d 756 (Fla. 3rd D,C.A. 1965); CMns v, State, 273 So. 2d 788 (Fla, 4th 

1Ic_ - 

. 

D,C.A. 1973); Wride v. State, 338 So, 2d 567 {Fla. 1st D.C.A. 1976). 

- 

Here, the defendant's statements about having nothing to do with guns 

cam in resmnse to the detective's telling him the allegations of an aggravated 

assault at Lwis Bradley's house. The statenmts can in no way be considered a 

false exculpatory statmwnt about the three hCanicides that occurred before the 

incident at the Bradleys' haw. The kcides were rot: mentioned to the 

defendant, nor was he under arrest for any homicide, nor was he questioned about 

his activities during the times when the hmicides occurred. The marginal 

probative value of the stata-ents was far outweighed by the prejudicial effect 

upon the jury when CcBnpOunded by the court's instruction. 

The resoedy is a new trial, 

- 

See Green, supra, 

During the testhny of state witness Denise Long, counsel atterpted 

to cross-be her h t the fact that she was on probation, (.T. 1626). The 

state's objection was sustained. (T, 1626-1627) 

The general rule is that counsel is to be allowed great latitude in 

cmss-exWbat3on into the areas of bias, interest, prejudice or corruption. 

HamDn v. - State, 394 So, 2d 121 (Na? 1st D,C,A, 1980). .Matters tending to shm 

Page -67-

ias or prejudice in a crkrtiml pmsemtion may be inquired about wen though 

mtmtioned on direct examination, =is v. State, 335 So, 2d 336 (Fla. 2nd 

- 

D.C.A. 1976)., WMFie v, State, 341 So. 2d 840 (Fla. 2nd D.CA 1977); and 

one need not lay a foundation before showing bias and interest on the 

- 7 

the Witness, Nford v; State, 41 Fla. 1, 36 So. 436 (19041, Wlfais v. State, 56 

Fla, 104, 47 So. 863 (19081, The fact that a prosecution Witness is on probation 

is a proper subject for crossdnation to show bias and interest. 

State, 374 So, 2d 116 (Fla, 2nd D.C.A, 1979); McKnightv, State, 390 So. 2d 

v - 

- 

485 (Fla. 4th D.C.A. 1980); Davis v. Alaska, 415 U.S. 308 (1974). IkdSe mg's 

testbny mntradicted that of the defendant and tended to shm the defendant 

of 

Daniels v. 

as an active participant in the incidents at Wis Bradley's house follming the 

murders. The defense was prejudiced in not being permitted tm dmnstrate 

her bias and interest by her probationary status. The law is clear that such 

cross-examination was proper. The r d y 

ARGuMEp\TII XVII 

is reversal. 

THE: mPiG Courrr ERKFD IN OVER-RUU'NG DEFENSE 

OBJECTIONS ATSJD FAILING TO D m A MIS= 

WHEN TI33 PFGECUTION INTRODUCED EYIDENCE OF 

PRIOR W I S m S m m BY WITNESS BILLY 

m G BEFORF: THE WITNESS'S cIIED113ILITY HAD BEEN 

ATI'AUGD, IN VIOLATION OF 8 90.801 (2) (b) , FLZ?, 

SmT. (1981), AND ME DUE: PFGCE!SS CIAUSE OF THE 

FIETH AND F O m AME"Ts 'I0 THE U,s. 

CONSTITUTION ZWD AFTICLE I, SECTION 9 OF TEE 

FTDRIDA CONSTITUTION, 

Whm the prosecution called Billy Long as a witness, bng testified that 

he was arrested on February 11, 1982, and called the police the next day because 

he wanted to talk to sawone, (T, 12371, He was permitted to testify, over 

objection, that he gave the police Ira full testimsrry" and that the !!best thing to 

do was to tell the truth on my behalf't. (T, 1238). He was also permitted, again 

on direct &nation, to testify that he told the police on February 12, 1982, 

the sane thbg as he said at trial, (T. 1274) 

was dated, and no curative instruction was given, CT, 1277), 

Page -68- 

The defense mtion for mistrial

The general rule is that a witness's testimny cannot be corroborated 

by a prior consistent statemzmt, unless it 2s offered to rebut an express or 

inplied charge against him of inproper influence, mtive, or recent fabrication. 

McRae V. State, 383 So, 2d 289 @la, 2d D.C.A. 1980); 2 90.801 (2) (b) , Pla. 

_. 

Stat, (19811,. "The rat2onale for prohibiting the use of prior consistent 

statants is to prevent 'putting a cloak of credibility' on the witness's 

- - 

testhny", Ferez v. State, 371 So. 2d 714, 716-717 (Fla. 2nd D.C.A. 19791, 

citing Brown v, State, 344 So, 2d 641 (Fla, 2d D,C,A. 1977). The use of prior 

I - 

consistent statemnts is prohibited when the staternen- are repeated by others 

b corroborate the witne~s~s testimony. 

- 

mti Y. - 

I__ 

State, 334 So, 2d 146 (Fla. 

2d D,C,A. 1976), zamb v. State, 357 So. 2d 437 (Fla, 2d D,C.A. 19781. 

It is 

equally inpermissible for the witness himself to introduce evidence of his own 

- 

prior consistent staterrmts. Van Gallon v, State, 50 So. 2d 882 (Fla, 1951); 

el la my, Thmrras, 287 So. 2d 733 (Fla, 4th D,C,A. 

2d 1081 (Fla. 1st D.C.A. 1977). 

1974); Trainer v. State, 346 So. 

'Ihe error in the instant case was even mre griwous because the 

testhny by the witness that he told the police the same story on February 12, 

1982, was not the truth. The witness was repeatedly *ached f m both written 

and stenographic staterrents that he had made to the police on February 12, 1982, 

(T. 1412-1413, 1414-1421), He finally admitted that he had made a false 

stataEnt to the police on February 12, IT. 1424, 1432)" He had apparently 

lied tm his attorney, as well, (T. 95-97). 

The prasecution attenpted to justify its use of consistent statements 

because the defense attacked the credibility of the Witness in opening staterrent. 

(T, 1274-1275). However, an opening staterrent is mt evidence, and it is 

inproper to bolster a witness's credibility before the witness's credibility 

has been attacked on cross-zxambation or by other evidence. See Whitted v. 

State, 362 So. 2d 668 (Fla, 19781, The defense contation was not that lbng 

had recently fabricated his story, but that he had made it up when he called 

Page -69-

ThE 

1420, 2205-2209). 

consistent statemnts; there was even less justification for allowing false 

testimny Ci.e. 

On February 12 and later changed it to fit the fads. (T, 1419- 

There was no basis for the admission of evidence of prior 

that his staterents of ~ebruary 12 were the saroe as his trial 

testhny) to be used to enhance. the witness!s credibility. 

that Billy Wny was the mst inrprtant prosecution witness, the prejudice frm 

these erroneous rulings is clear; the renredy is a new trial. 

2lEGwmT XVTII 

Considering 

During cross-examimtion of state witness Billy Lnng, defense counsel 

attapted to inpeach Long frm a deposition that Long had given in a civil 

lawsuit in 1979. (T. 1282-12851, The prosecution objected on the Fund that 

such impeachmnt was irrelevant and that the deposition had not hen provided 

to the state. (T. 1285-1314). The court ruled that the deposition should be 

provided to the state and that the state be permitted an overnight recess in 

order to prepare their witness for questioning f m 

that deposition. (T, 1310- 

1313). Xter the recess, the court permitted the state to recall the witness 

for further direct exmination. (T. 1321, 1322). This negated any effective 

krpachwnt of the witness from the deposition, (T. 1323-1332), 

Prior inconsistent statements need not be written, signed, or under oath 

to be admksible, Any person in whose presence an oral sta-t was made may 

testify abut It, Morris v. SWb, 100 Fla. 850, 130 So, 582 (1930). Fla, 

R. Crh. P, 3.220 (b) (4) (1) requires the. defense to disclose the statant of 

Page -70-

any person the defense "expects to call as a trial witness". 

Here, of course, 

counsel hqd no expsctation of calling Billy Long as a trhl witness, and was 

under no obligation to mtify the state of a prior skatemmt of a state witness. 

Fla, R. Crh. P. 3,220 (bl (4) (Sii),, relied upon the trial court, refers to 

'Yangible papers or objects" that the defense intends to use at trial. It is 

defendant's position that this provision of the rule relates to physical 

evidence, charts, exhibits, documents, etc., that the accused my seek to 

introduce into evidence. A deposition that is not going to be introduced into 

evidence does not co~[lft within the ambit of subsection (iii) , above, SO that 

disclosure would not be required. 

The defense was prejudiced by the aourt's ruling in that the 

effectiveness of munsel's cross-examination of Billy long was destroyed by 

the recess and subsequent recall of the witness. Long's credibility was of 

critical importance. zhe remdy is a new trial. 

(21 April 2, 1982, the court heard argument on the defendant's Motion 

in Lirrcisle (R. 57-60) and denied the mtion without permitting an widentiary 

hearing. (T, 43-51). Counsel intended to present pmf that a "death qualified'' 

jury is mre prone to mnvict than a jury selected without regard to their 

beliefs in capital punishrmtr and that the exclusion of death-scrupled jurors 

serves to deprive an accused of his right to a jury mtprised of a representative 

cross-sectibn of the carcnrunity. During vair dire, five jurors were excused 

for cause because, although they could be irrpartial as to guilt, they could 

Page -71-

not vote gor the deqth psnqlty, (T, 593-5, 59577, 597-8, 735, 7361, 

This court has previously rejected the 'lcross-secthn of the cmm-unity'! 

mt, ' __* Wley v. 'State, - 366 SO, 261 19 (Fla, 19791 !he ''gdlt proneness" 

of the "death-qualified" jury is an issue that this court has not addressed, 

hawever. Nettles v. State, 409 So, 2d 85 (Fla. 1st. D.C,A, 1982), This issue 

^1 

can properly be litigated only after a full-blown evidentiaq heazring; the 

denial of an widentiaq hearing by the trial court was error. Grigsby v. 

Wry, 637 F. 2d 525 (8th Cir. 1980). Such a hearing was conducted pursuant 

to the r d i n Grigsby, supra, arad the federal district court found: 

"To swmrrarize, death qualification skews the predispositional 

balance of the jury pool by excluding prospective jurors who 

unequivocally express opposition t~ the death palty. zhe 

evidence .... clearly establishes that a juror's attitude toward 

the death penalty is the nmst pmerful kmwn predictor of his 

overall predispsition in a capital criminal case. That evidence 

shms that persons who favor the death penalty are predisposed 

in favor of the prosecution and are unrorrmonly predisposed against 

the defendant. The evidence shms that death penalty attitudes 

are highly correlated with other criminal justice attitudes. 

Generally, those who favor the death penalty are rmre likely to 

trust prosecutors, distrust defense munsel, to believe the state's 

witnesses, and to disapprove of certain of the accepted rights 

of defendants in criminal cases. A jury so selected Will not, 

therefore, be carpsed of a cross section of the cmnnmity. 

Rather, it will be -s&i of a group of persons who are uncmmnly 

predisposed to favor the prosecution, a jury 'organized to convict". 

Grigsby v. Fry, Case No. PB-C-78-32, (E.D.Ark. filed August 5, 

1983). 

The defendant requests this court to accept the studies and findings 

in Grigsby, supra, dr, at the very least, to remand this cause to the trial 

court for an widentiary hearing, 

The argum-ks and authorities contained in defendantrs Pbtion to Declare 

F. S. 921,141 Unconstituti'onal (R, 77-79, T, 5158);m1++0n rn vaate Death Penalty 

Page -72-

CR, 6167 T, 58-7 

Penalty (R. 16-31 , T. 35-37),, are adopted herein. 

ImxrmNP'xxI 

THE DEFQWANT'S SENTENCE OF DEATH cFv\sNoT 

BE CARRIED QUT BEcaUSE DI?J'UH BY -ON 

IS CRUEL AND/OR UNUSuaL PUNISHMENT, IN VIOLATION 

OF THE EIGHTEI AND l3- To THE 

U.S, CONSTITUTION AND ART1CI;E I, SECTION 17 OF 

THE FLORIIA CONSTITUTION. 

The argumnts and autharities contained in defendant's Wtion 73 

Declare F. S. 922.10 Unconstitutional (R 68-70, T. 77-78), are adopted 

herein. 

THE TRIAL CoUrcT ~ U S L smcED Y THE 

DEFEKDWT To DEATH ON COUNT 11, WHERE THE 

JURY'S 

IN FAVOR OF LIFE: WA5 WELL- 

SlJF'FORTED BOTH IN FACT AND IN Lslw. 

The Florida capital sentencing process contemplates that, after 

receipt of the juryls reccBnmended sentence, the trial judge will Weigh evidence 

of aggravating and mitigating circumstances in order to arrive at a reasoned 

judgmznt as to the appropriate smtence to irrg?ose". 

Sa.2d 1327, 1331 (Fla. 1981), 

Brawn v. Wainwright, 392 

A m ison of the evidence intmduced at the 

trail and sentencing proceedings with the trial couTtls sentencing order 

(R. 476-509) reveals findings of fact that are unsupportd by, if not contrary 

to, the evidence, errmeom consideration of aggravating circzrmstances, and a 

total disregard for mitigating circumstances and for the weight to be given a 

jury advisory sentence. 

At the trial of this cause, the defendant testified in his own behalf 

and admitted being present when three wders were comnittd. 

the hOanicide of Richard Padgett (Count I), was mmntradictedi the defendant's 

version of the Murder of Nancy Sheppard (Count 111 was contradicted by Billy 

Long, but supported by the testhny of other w2tnesses, 

Page -73- 

His version of 

The defendant's version

c 

of the murder of Jady Dalton (Count IIT) was contrqdicted by Joan l%mett, 

It is clear that the jury predicated the defendant's li&il?ty in 

Count 111 on a felonycmurder theory, since that is the only way third degreeqder 

can occur. (R" 3921, It is equally clear that frmn their verdict, the jury did 

rot believe Bennettrs testhny that the defendant and Gmover plotted, planned, 

and intended hlton's death. 

It cannot be said that the jury believed Ions as to Count 11, or 

disbel2eved the defendant as to Cbunt I, when one considers that the prosecution 

argued that the defendant was guilty of first d-ee murder on both counts 

even if the defendant's version of the hnicides was believed. (T. 2147- 

2149, 2264). Defense counsel expressed this vim of their verdicts in his 

penalty phase smtion. (T. 2464-2465). 

Aggravating Ciramstances: During the advisory sentence proceeding, the 

prosecution argued the follwing aggravating circumstances as to Count 11: 

(1) The defendant was previously convicted of another capital 

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

person. 5 921.141 (5) (b), Fla. Stat, (1981). 

The state argued the first degree murder of Padgett, third 

dqree murder of Dalton, and prior aggravated battery conviction as 

applicable. (T. 2423-2425). !this aggravating cirmtance was found 

by the trial court. (R. 497-498) 

(2) W defendant knmingly created a great risk of death to m y 

persons. # 921.141 (5) (c) Fla. Stat. (1981). 

The state argued that this circmstance applied. (T. 2425-2426). 

The trial court did not find this circmnstance present, apparmtly due 

to imprecise statutory language, (R, 498). 

(3) ?he capital felony was cdtted while the defendant was 

engaged in the comnissian of a mbery. 921.141 (5) Cd.), Fla, Stat. (1981). 

Tne state argued the existence of this circumstance because 

Page -74-

Sheppard's necklace and ring me taken aEtr;r she was killed, but 

admitted that the primary mtive was to cover up Padgett's murder. 

(T, 2428-24291. The t&al court found this circumstance (R. 500). 

HckJever, it is clear that robbery was not the motive, 

403 So. 2d 1319 (Fla. 1981), the victim was a police officer who was 

shot to death with his own gun by the defendants. The gun was found 

later in the defendant3 possession. 

from first degree murder to second degree mder due to insufficient 

evidence of premeditation. 

- 

In Hall v. State, 

This Court reduced the oonviction 

Apparently, a felony (rok3bery) mder 

justification for the first degree conviction was considered too tenuous 

to even address, even though the gun had to be taken frm the officer 

before he was shot. 

- 

In Wody v. State, 403 So. 2d 989 (Fla. 19821, 

the defendant stabkd the victim to death, set fire to his house, and 

left the scene in the victhts van. This court found the aggravating 

circwnstances of felony (.arson) murder to be u nsuped by the evide 

-wethe fire was set after the victim was killed. Id., at 995. 

&cause it is clear that the taking of the ring and necklace was an 

incidental afterthought of the rmrder, this aggravating circumstance As 

not supported by the evidence and should mt have been considered by 

the trial murt. 

(4) The capital felony was ccCnmj_tted for the pwpose of avoiding 

or preventing a lawful arrest. 921.141 (5) (e), Fla. Stat. (1981). 

The state argued this circumstance because Sheppard was killed 

to prevent her from being a witness, (T. 2429-2430), and the trial court 

agreed. (R. 500-501). 

(5) The capitaL felony was mtted for pecuniary gain. 921,141 

(5) (f), Fla. Stat, (1981). 

Page -75-

The state argued this circumtmce as pgesent k ~me the degendant 

killed Padgett and Sheppard b~ the furtherance of a %consp$racy to sell 

drugstt. (T, 2430-24311, 

found the takiny of the rihg and necklace to be an additional basis 

for this aggravating circumstance. 

as a basis for the finding this circmstance constitutes an inproper 

doubling of this cbxnn&ance with the felony mder circumstance. 

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

cirmtance cannot be justified under either theory. 

proof beyond a reasonable doubt of a pecuniary mtivation for the rrturder 

in order to sustain a finding of this aggravating circurrr;tance. 

Shrons v. State, 419 So. 2d 316 (Fla. 19821, Peek v, State, 395 So. 

2d 492 (Fla. 1981). zhe mntive was clearly witness elimination, not 

to take a ring and necklace. 

Shepprd would in any way enhance the defendant's profits from dealing 

drugs. 

See Steinhorst v. State, 412 So. 2d 332, 339 (Fla. 1982), 

aggravating circmstance was not p r m and should not have been 

mnsiderd. The prosecution had previously argued that mmy was _II_ 

the mtive for Padgett's murder. (T. 2130-2131). 

?he trial qurt acceptEd this ZlrgUWllt and also 

'Ihe use of the taking of the jewelry 

kgxdless, this 

- -- 

There must be 

Nor can it be said that killing Nancy 

The drug dealing was forpeculrl#y gain, the murder was not. 

%his 

not 

(6) The capital c rk was especially heinous, at-wocious, or cruel. 

921.141 (5) (h), Fla, Stat. (1981) * 

The prosecutor argued that the circumstance applied because 

Sheppard was taka to see Padgett's bdy before she was shot, and the 

trial cart agreed, (R. 503-504) , 

Sheppard did rot knm she was going to be killeddwing a charge 

conference. (T. 2010-2011), 

her knees (T, 12601, and the shooting rendered her unmcious hrmdiately. 

(T, 1032-1U33), 

Wever, the murt acknwldged that 

She was shot €rm khindwhen she fell to 

The stab wounds that the state contendedwere later 

Page -76-

(-TT* 1032, 10491. 

An execution-style murder is not narrnally sufficient to pme this agg-ravating ci'r~tance beyond a reasonable doUljti'mpK v, - State, 

336 So, 2d 1133 (Fla. 1976); Fknendez v. .State, 368 So. 2d 1278 (Fla, 

1979), This is particularly h e where the victim was not even aware 

she was going to be killed, 

- 

Maggard v. State, 399 So. 2d 973 (Pla, 19811, 

was female is likewise not sufficient ta qualify an execution-style 

wder as especially heinous, within the meankg of this aggravating 

circmtance, Wder v. State, 322 So. 2d 908 (Fla, 1975), mr is the 

fact of luring the individual to an isolated area for the purpose of 

- 

v 

- 

__c 

-is v. State, 398 So. 2d 432 @la. 1981); 

murder. Dawns v. State, 386 So. 2d 788 (Fla. 1980). 

The fact that the victim 

that the facts do not support this aggravating circumstance. 

It is submitted 

(7) The hanicide was cmmitted in a cold, calculated and prerneditatd 

ma, without any pretense of mral or legal justification. 

(5) (i) , Fla. Stat, (1981). 

found, t!ne existence of this aggravating circumstance. (R. 504-505). 

Mitigating Circmtances: 

defense presented the follming evidence in mitigation: 

921.141 

The prosecution argued, and the trial court 

During the advisory sentencing pmcecding, the 

(1) The defmdantls nrrther, Hattie Parker, explained the circ=umstanc@s 

of the defendant's upbringing, including that they had a very close 

fdly to which the defendant contributed his share of "&me$'' 

(T. 2231-2232); 

that the defendant's father was an alcoholic who beat 

his mther in the defendant's presence (T. 2322-2323); and that the 

defendant's father began giving the defendant alcoholic beverages and 

taking him to bars at an early age (T, 232323241, 

the defendant began datihg Elainer his exdfe, when he was 14 years old 

and Elaine was 16 years old, (T. 2325), 

Page -77- 

She testified that 

?he defendant married Elaine when

he was 16, becguse she was pregnant, (T, 2326-2327)., 

than with mey Em her jda; the defendant was unemployed and twk w e 

of his son and daughter, (T. 2327-2330), The defendant developed a drug 

and alcohol problm and sought professlonal help, but Elaine was not 

supportive. (T. 2330). For shooting Billy Lonq, the defendant served 

a six-mnth jail sentence in a work-release center and then successfully 

qleted a term of pmabation (T, 2331-23321, 

Elaine supported 

The defendant had att-ted suicide when Elaine left him. 

(T. 2332). Elaine was the ddnant figure h the mrriage. (T. 2333)- 

The defendant was a god father and was very close to his two children, 

ages 11 and 9. (2338-2339). 

(2) Nellie Filbert, the defendant's grandmther, testified that the 

defendant was not a selfish child, but had always gone out of his way to 

help her; that his father drank too mch and mistreated his mther; 

that the defendant's behavior changed after he hqan seeing Elaine 

Parker and using dgugs; and that he was a good father to his children. 

(T. 2342-23441. 

(3) Nellie Ballard, a neig-hbr of the defendant's,told the jury abut 

hm the defendant had taken her husband to the hospital three or four t k s 

a month for over a yeax, as a favor and without re-imbursemmt (T. 2346- 

23481, that he was a good father to his children, (T. 2348), that the 

defendant had always been polite and courteous towards ha, (T, 2346) , 

and that she muld not hesitate to ask him for help if she needed it. 

(T. 2348). 

(4) Gail Palnver, the defendant's cousin, testified that the defendant 

was a good father who WE@ very close to his children (T, 2351-23521, 

and that he had ccanforted her through a crisis involving her baby. (T. 2352- 

2354). 

Page -78-

(5) W ilm Urgmn, the defendant's sister, testified that their father 

beat their mther when he was drinking (T, 2355-2356) ; that the defendant 

mt Elaine when he was 14 and Elaine was 16 (T, 2356-2357); that 

Elaine got the defendant started using drugs (T. 2357-2358); that the 

defendant and Elaine were mied when the defendant was 16 and Elaine 

was pregnant (T.2358); that the defendant was chiefly a house-husband 

while his wife worked (T. 2358-2359) ; that he supprted his sister, 

financially a& amtionally, when she was in marital distress (T. 2359- 

2360); that Elaine was the dminant figure in the household (T. 2361); 

and that the defendant was a good and loving father to his children 

(T. 2361). 

(6) Eva Mae Sapp, a minister, testified that she had visited the 

defendant in jail while the defendant was awaiting trial, at his 

request, and that the defendant had a very sincere interest in religion. 

(T. 2363-2364). 

The defense introduced the written negotiated plea of Elaine 

Parker, in which the state had dropped two first degree murder charges 

and reduced the murder of Nancy Sheppard from first degree to second 

degree, in exchange for a guilty plea and her promise to testify for 

the state. (T. 2366). The defense introduced the indictmnt against 

T0rn-y Grmver (T. 2377), the jury's advisory sentence for Groover 

(T. 2378), and the sentence q sed by the lower Court on Graver. 

(T. 2378). 

These docunuents shaved that Groover had been mnvicted of 

three counts of first degree murder, that the jury had reccmw.nd& life 

for the mders of Padgett and Sheppard but death for the murder of Dalton, 

and that the trial court had senkenced Grmver to death for the murders 

of Padgett and Dalton and life for the mder of Sheppard. 

Page -79-

The defense argued the presence of statutoxy mitigating circumstance 

921,141 (6) (b) , Fla. Stat. (1981) I that the defendant was under the influence 

of extreme mtal or emtioral disturbance, and 

921.141 (6) (f) , that his 

capacity to appreciate the criminality of his mnduct, or to confom his conduct 

to the requirements of law, was substantially h-paired. (T. 2481-2483). 

basis for this impairmnt was the defendant's intoxication on drugs and alcohol, 

which was supported by the testhny of the defendant (T. 1834, 1837, 1880- 

1881) , Denise Long (T. 16191, Spencer Hance (T. 14971, Hal Jahns (T. 1738-1739), 

Lwis Bradley (T. 16321, Joan Bennett (T. 1540-15411, Billy bng (T. 1401-1402), 

and Richard Ellmod (T. 1766). 

?he 

The trial court refused to find any mitigating 

circumstance under either (6) (b) or (6) (f) , in part because the defendant 

presented no psychiatric testimny. (R. 489-490, 494-495). It is clear that drug 

and alcahd intoxication can support a finding under these statutory mitigating 

cirmtances, Kampff v. State, 371 So. 2d 1007 (Fla. 1979), or a finding as a 

non-statutory mitigating circumstance, Buckm v.State, 355 So. 2d 111 (Fla. 

1978). 

hhere the j q 

reclmrmended life, it cannot be assumed that the jury did 

not find mitigation due to drug and alcohol intaxication. 

Where the evidence 

was uncontradicted, it was inproper for the lower court to reject intoxication 

as any type of mitigation. 

The defense argued mitigation unda 921.141 (6) (e) , that the defendant 

acted under e..xtrar~ duress or under the substantial domination of another person. 

(T. 2483-2484). 

'Ihe defendant's testimny supprted a finding under this 

mitigating circumstance, due to threats by Tkmny &cover. (T. 1847-1848, 1851, 

1852, 1863, 1865, 1880-1881). Joan Bennett and lbrris Johnson verified that the 

defeladantwas acting scared. (T. 1697, 1562-1563). %ugh the lower mwt 

rejected this mitigating ckxnnstance, (R, 493), the jury's evaluation of the 

evidence may have reasonably been different. See m f n 

170 (Fla. 1981). 

- -' 

v, State 405 So, 2d

The defense also argued for mitigation under 921.141 (-6): Id), that the 

defendantwqs an acmqlice in the capital felony cadtted by another person 

and his participated was relatively minor. (T. 2484-2487). 

rejected this circumstance with several pa-ently erronems findings of fact: 

the gun used to kill Nancy Sheppard was Elaine Parker's, not the defendant's; 

the cqr used in the nuder was Elaine Parker's, not the defendant's; the defendant 

did not drive the car; Elaine and Graver did. There was substantial evidence 

from Donald Fby (T. 1749); Richard Ellwood (T. 1765-1766, 1788); Billy Walters 

(T. 1799-1800); Spencer Wce (T. 1494), and the defendant himself (T. 1870- 

1871), that Long was told by Gr0ove.r to kill Sheppard, that Long both shot and 

cut Sheppard while the defendant was by the car, and that Sang was lying to 

protect himself and Groover, his roamnate and best friend. 

mt have been unreasonable for the juq to find mitigation under this section. 

See Slater v. State, 316 So. 2d 539 (Fla. 1975); Taylor v. State, - 294 So. 

2d 648 (Fla. 1974); Hawkins v. State, 436 So. 2d 44 (Fla. 1983). 

'Ihe trial court 

It would, therefore, 

As additional mn-statutory mitigation, the defense argued that, if the 

state's case was to be believed, the defendant actually saved the lives of several 

people in Lewis Bradley's house by taking the gun away from Tamny Grwver. 

(T. 2487-2488). 

the lawel? court. 

Though the jury reamend& life, this aspect was ignored by 

The defense argued the significance of the evidence presented by the 

defense witnesses in the penalty phase trial. 

addressed by the trial court, but it should have been considered. 

v. State, 421 So. 2d 1072 (Fla. 19821, 

None of this evidence was even 

See raCCapbell 

The trial court also ignored the fact that the defendant was the father 

of two small chi;ld;ren for whm he cared, though it was argued to the jury as a 

mitigating cirmtance, (T. 2490-2491). This factor too, could have fonrsd a 

reasonable basis for the july's life reccmnmdation. - Jacobs v, State, 396 

Page -81-

So. 2d 713 (Pla. 19811, 

co-defendants. 

Another factor ignored by the trial murt was the sentences of the 

that the 1mer court should have considerd. Gafford v, State, 387 So. 2d 

333 (Fla. 1980). 

Even had the jury reamended death, this is an important factor 

The factors of fairness and equal justice with regard to the 

sentences of the codefendants were present& to the jury, (T. 2491-24961, 

and mquestionably form a reasonable basis for the jury life reamnerdation. 

The concept of %qua1 justice under law" would have a hollow ring indeed if 

only the defendant were to receive the ultimate sentence for the murder of Nancy 

Sheppard. See Barclay v. State, 343 So. 2d 1266, 1271 (Fla. 1977); Slat-, 

supra; ksser v. State, 330 So. 2d 137 @la. 1976). 

The lmer court found m mitigating cirmtance under 5 921.141 (6) 

(g), the age of the defendant at the tire of the crh. 

argued to the jury that it should be considered, because at the age of 28, 

the defendant would be 78 before he was even eligible for parole if he were 

given life sentences. (T. 2497-2499). It is submitted that this factor was 

properly considered by the jury in mitigation. 

However, the defense 

There are clear indications from the sentencing order that the trial court 

did not exercise a "reasoned judgmnt'l in jrnpOsing a death sentence. 

statmt that Nancy Sheppard was not a drug user (R. 486), is in conflict with 

scientific evidence she had been using morphine (T. 1049). The statmt that 

Ridard Padgett was shot to death while on his knees begging for mcy, (R. 501- 

502) is totally Without any evidentiaxy foundation whatsoever. The physical 

evidence and the uncontradicted testimony of the defendant indicated that 

Padgettwas shot from behind, in the back of the head, probably vhile taking off 

his shirt. 

?&where in the sentencing order is there any indication that the 

court considered any non-statutory mitigating factors. 

to find any mitigating circmtances, even in the Padgett murder (where a life 

sentence was imposed), is not surprising. 

Page -82- 

The 

The failure of the court 

Judge Olliff has never found a

mitigating circumstance in a capital case, 

S. Ct, 3418, 3440 (1983) I (Wshall, J. diaseultbg2 

The juy reccarmendatilon: 

- 

See Wclax v. FlorLdq, 103 

This Court first explained the bportance of a jury recmmndation of 

- 

life in Tedder v. State, 322 So. 2d 908 @lae 1975): 

A jury remnmmdation under OUT trifurcated death penalty statute 

should be given great weight. In order to sustain a sentence of 

death following a jury reccmmmdation of life, the facts suggesting 

a sentence of death should be so clear and convincing that virtually 

no reasonable person could differ. Tedder, supra at 910. 

In applying the Tedder standard, the Court must determine if thexe was a 

reasonable basis for the jury recamadation. If there is a reasonable basis, 

then the jury recamendation must stand. Mlloy v. State, 382 So. 2d 1190 

(Fla. 1979). A jury life remmrsendation eliminates any presunption that death 

is the appropriate penalty when one or mre aggravating circumstances are 

present. Williams v. State, 386 So. 2d 538 (Fla. 1980). 

All of the mitigating cirmtances presented by the defendant have 

been found by this court to form a reasonable basis for a juyy life remmndation: 

(1) Intoxication on drugs and alcohol. mff, supra; Buckran, 

supra, Norris v. State, 429 So. 2d 688 (Fla. 1983). 

(2) mess or coercion. Goochin, supra. 

(3) Felatively minor participation, or dispute as to participation. 

Taylor, supra; Slater, supra; Malloy, supra; Hawkins, supra. 

(4) Parent of 2 young children. Jacobs, supra. 

(5) The defendant's family backgrod. McCampbell, supra; 

Washingtan- v. State, 432 So. 2d 44, (Fla. 1983). 

(6) Sentences of m-defedants. Slater, supra; Msllloy, supra; 

Neary v. State, 384 So, 2d 881 (Fla. 1980); Barfield v. State, 402 

So. 2d 377 (.Ella. 1981); WcaXkillv, State 344 So, 2d 1276 (Fla. 

-r 

1977). 

Page -83-

0 

Because there was ample evidence of non-statutory mitigation upn which 

the jury could haw based its life recmmmdation, wen the existence of numerous 

aggravating circumstances does not ccgnpel a death sentalce. See Welty v. State -1 

402 So. 2d 1159 (Fla. 1981); Gi1vi.n v. - State, 418 So. 2d 996 (Fla, 1982). 

- 

The guilty verdict as b aunt IT in no way permits the assumption that the 

jury believed Billy long. As in Malloy, - supra, the jury could very well have 

believed the defendant's sbry and still convicted !xh of first degree murder. 

The jury verdict form den-onstrates that the jury exercised a reasoned judgement: 

there were I_ sufficient aggravating circumstances to justify death, but the 

mitigating circumstances outweighed the aggravating circunstances. (R. 435). 

Over-rUZing the jury life recamendation was error; the r d y is to 

r m d with directions to mse a sentence of life imprisomt. 

The death sentence in this CaSe was imposed without carpelling reason, 

over a life recmmxdation that was firmly supprted both in fact and in law. 

The r&y required, hmever, is not sirtiply vacating the sentence. 

defendant was prevented fm fully and fairly presenting his defense by jury 

instructions that effectively direct4 a verdict on the ultimate issues of fact. 

The "over kill" tactics of the prosecution sought a verdict of passion and 

emtion. 

The integrity of our fact-finding process, and the defendant's right 

to fundarrmtal fairness, rquires m less than a new trial where death is not 

a possible punishment. 

Page -84- 

Bspectfdly sulrmitted, 

GREENSPAN, GOODSTEIN & LINK 

h 

The 

305 Washin&on Street 

Jacksonville, Florida 32202 

-1ephone: (904) 354-1386 

Attorney for Defendant

CFRI'IFICATE OF SERVTCE 

I HEREBY CERTIFY that a true and correct copy of the foregoing 

has been furnished to Barbara Butler, Office of the Attorney General, 

Ixlval County Courthouse, Jacksonville, Florida 32202, by 

delivery, this 25 day of October , 1983. 

Page -85- 

- 

mail

Fla. Stat, (1981) - Florida State University College of Law

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