Proffitt v. Florida Brief Amicus Curiae
Public Court Documents
October 6, 1975
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Brief Collection, LDF Court Filings. Proffitt v. Florida Brief Amicus Curiae, 1975. 77e2ac99-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2005a8e8-1d2c-4962-9135-77cb9ecc960b/proffitt-v-florida-brief-amicus-curiae. Accessed October 09, 2025.
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In t h e
Bwpxmt &mtrt of % United States
Octobeb T eem, 1975
No. 75-5706
Charles W illiam P eoffitt,
Petitioner,
—v.—
S tate of F lorida,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND
EDUCATIONAL FUND, INC. AS AMICUS CURIAE
J ack Greenberg
J ames M. Nabrit, III
D avid E. K endall
P eggy C. Davis
10 Columbus Circle, Suite 2030
New York, New York 10019
A nthony G. A msterdam
Stanford University Law School
Stanford, California 94305
Attorneys for the NA..A.C.P. Legal
Defense and Educational Fund, Inc.
I N D E X
Statement of Interest of the N.A.A.C.P. Legal Defense
and Educational Fund, Inc................................... - ...... 1
Question Presented ................................................ - ........ 2
Constitutional and Statutory Provisions Involved....... 3
Statement of the C ase......................... ............................ 12
Summary of Argument ...................................................... 17
I. Introduction ... 19
II. The Arbitrary Infliction of D eath...................... 21
A. At the Penalty Trial .......................................... 21
1. Florida’s 1972 Death Penalty Legislation
Is Explicitly Discretionary ........................ 21
2. The Statutory Enumeration of Aggra
vating and Mitigating Circumstances Does
Not Control Arbitrariness in the Exer
cise of Capital Sentencing Discretion..... 24
(a) The breadth of the statutory aggra
vating circumstances .......................... 24
(b) The recognition of nonstatutory ag
gravating circumstances .................. 29
(c) The vagueness of the statutory ag
gravating circumstances ..................... 31
(d) The breadth and vagueness of the
statutory mitigating circumstances .... 32
PAGE
(e) The absence of any controls in the
process of weighing the “ sufficiency”
of aggravating and mitigating cir
cumstances ..................................... 34
3. “Trifurcation” Increases Sentencing Ar
bitrariness ......................................... 35
(a) The opacity of the jury’s advisory
verdict ..................................... 37
(b) The uncertain importance of the ad
visory verdict ...................................... 38
(c) The uncertain role of the Florida
Supreme Court .... ............................... 40
4. The Results of “Trifurcation” : Caprice
and Arbitrariness........................................ 45
5. The Death Sentence Imposed Upon Peti
tioner Was Characteristically Arbitrary .. 54
B. Before and After the Penalty T ria l............... 60
1. Prosecutorial Charging Discretion........... 61
2. Plea Bargaining ...................... 64
3. Jury Discretion .......................................... 65
4. Executive Clemency................................... 73
HE. The Excessive Cruelty of Death.......................... 76
Conclusion .......................................... 76
A p p e n d i x A ..................................................................................... la
11
PAGE
iii
T able op A uthorities
Cases: page
Adderly v. Wainwright, 58 F.R.D. 389 (M.D. Fla. 1972) 19
Alford v. State, 307 So.2d 443 (Fla. 1975) ...........29, 42, 43
Alvord v. State, 322 So.2d 533 (Fla. 1975) ....17, 22, 29, 37,
42, 43, 44, 45, 60
Anderson v. Florida, 408 U.S. 938 (1972) .................... 19
Anderson v. State, 276 So.2d 17 (Fla. 1973) ...............66, 67
Anderson v. State, 267 So.2d 8 (Fla. 1972) .................. 19
Bailey v. State, 224 So.2d 296 (Fla. 1969) .................. 71, 73
Baker v. State, 137 Fla. 27, 188 So. 634 (1939) ........... 74
Ballard v. State, 323 So.2d 297 (Fla. App. 1975) _____ 58
Barnes v. State, 58 So.2d 157 (Fla. 1952) .................. 61, 63
Beasley v. State, 315 So.2d 540 (Fla. App. 1975) ....... 49
Bega v. State, 100 So.2d 455 (Fla. App. 1958) _______ 70
Boykin v. Florida, 408 U.S. 940 (1972) ........................ 19
Brown v. State, 124 So.2d 481 (Fla. 1960) ...... ............ 71
Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943) ____ 41
Brown v. Florida, 408 U.S. 938 (1972) _____________ 19
Calvo v. State, 313 So.2d 39 (Fla. App. 1975) ............. 49
Canada v. State, 144 Fla. 633, 198 So. 220 (1940) ____ 64
Carlile v. State, 129 Fla. 860, 176 So. 862 (1937) ....... 63
Chaney v. State, 267 So.2d 65 (Fla. 1972) ..................... 19
Chavigny v. State, 112 So.2d 910 (Fla. App. 1959) — 74
Clements v. State, 284 So.2d 700 (Fla. 1974) ------------ 70
Collier v. Baker, 155 Fla. 425, 20 So.2d 652 (1945) ..... 62
Cook v. State, 46 Fla. 20, 35 So. 665 (1903) ................... 67
Darden v. State, Fla. Sup. Ct. No. 45,108 & 45,056 (Feb.
18, 1976) ...... ....... ....................................... —.............. 42
Darty v. State, 161 So.2d 864 (Fla. App. 1964) ........... 70
Davis v. State, 44 Fla. 32, 32 So. 822 (1902) ________ 73
IV
Davis v. State, 123 So.2d 703 (Fla. 1960) .................. 40,73
DeLoach v. State, 232 So.2d 765 (Fla. 1970) ............... 41
Dinkens v. State, 291 So.2d 122 (Fla. App. 1974) ....... 58
Dobbert v. State, Fla. Sup. Ct. No. 45,558 (Jan. 21,
1976) .........................................................................39,42,47
Donaldson v. Sack, 265 So.2d 499 (Fla. 1972) ............. 19
Douglas v. State, Fla. Sup. Ct. No. 44,864 (Feb. 18,
1976) ...............................................................................42,48
Eckles v. State, 132 Fla. 526, 180 So. 764 (1938) ......... 64
Ex Parte White, 161 Fla. 85, 178 So. 876 (1938) ....... 74
Forehand v. State, 126 Fla. 464, 171 So. 241 (1936) — 67
Furman v. Georgia, 408 U.S. 238 (1972) ...................passim
Gardner v. State, 28 Fla. 113, 9 So. 835 (1891) ______ 73
Gardner v. State, 313 So.2d 675 (Fla. 1975) ....... 39,42,43,
46, 48, 49
Gilbert v. State, 311 So.2d 385 (Fla. App. 1975) . 58
Gilford v. State, 313 So.2d 729 (Fla. 1975) ... 73
Griffith v. State, 171 So.2d 597 (Fla. App. 1965) . 51
Grimes v. State, 64 So.2d 920 (Fla. 1953) .......... 69
Hall v. State, 136 Fla. 644, 187 So. 392 (1939) ........... 63
Hallman v. State, 305 So.2d 180 (Fla. 1974) .........28, 42, 43
Halliwell v. State, 323 So.2d 557 (Fla. 1975)....32, 38, 41, 42,
49, 52, 56
Hanna v. State, 319 So.2d 586 (Fla. App. 1975)............. 49
Hasty v. State, 120 Fla. 269, 162 So. 910 (1935)........... 67
Hawkins v. Wainwright, 408 U.S. 941 (1972).................. 19
Hernandez v. State, 273 So.2d 130 (Fla. App. 1973)....67, 68
Hernandez v. State, 323 So.2d 318 (Fla. App. 1975)..... 58
Hornbeck v. State, 77 So.2d 876 (Fla. 1955).................. 51
Huntlv v. State, 66 So.2d 504 (Fla. 1953) ................... 69
PAGE
V
Imparator v. Spicola, 238 So.2d 503 (Fla. App. 1970).... 62
In re Baker, 267 So.2d 331 (Fla. 1972).......................... 19
Ingram v. Prescott, 111 Fla. 320, 149 So. 369 (1933).... 63
Jefferson v. State, 128 So.2d 132 (Fla. 1961)................. 51
Jefferson v. State, 298 So.2d 465 (Fla. App. 1974)....... 58
Johns v. State, 144 Fla. 256, 197 So. 791 (1940)........... 62
Johnson v. Florida, 408 U.S. 939 (1972)........................ 19
Johnson v. State, 61 So.2d 179 (Fla. 1952).................... 72
Johnson v. State, 91 So.2d 185 (Fla. 1956).............. 69, 73
Killen v. State, 92 So.2d 825 (Fla. 1957)...................... 70, 71
LaBarbera v. State, 63 So.2d 654 (Fla. 1953).............41,73
LaMadline v. State, 303 So.2d 17 (Fla. 1974).........38, 42, 47
LaPrell v. State, 124 So.2d 18 (Fla. App. 1960)........... 41
Larry v. State, 104 So.2d 352 (Fla. 1958)...................... 68
Lattimore v. Florida, 323 So.2d 5 (Fla. App. 1975)..... 49
Lewis v. State, 93 So.2d 46 (Fla. 1956).......................... 65
Linsley v. State, 88 Fla. 135, 101 So. 273 (1924)........... 73
Little y. State, 206 So.2d 9 (Fla. 1968).......................... 71
Louisville & Nashville By. Co. v. Central Stockyards
Co., 212 U.S. 132 (1909)................................................. 75
Lowe v. State, 90 Fla. 255, 105 So. 829 (1925).............67, 68
Luke v. State, 204 So.2d 359 (Fla. App. 1967)............... 70
Mackiewicz v. State, 114 So.2d 684 (Fla. 1959)............. 67
McCrae v. State, 313 So.2d 429 (Fla. App. 1975)......... 49
McCutchen v. State, 96 So.2d 152 (Fla. 1957)............... 67
McGautha v. California, 402 U.S. 183 (1971)................. 59
Melero v. State, 306 So.2d 603 (Fla. App. 1975)______ 49
Miller v. State, 300 So.2d 53 (Fla. App. 1974)............... 58
Newman v. Wainwright, 464 F.2d 615 (CA5 1972)....... 19
PAGE
VI
Newton v. State, 178 So.2d 341 (Fla. 1965).................. 62
Noel v. State, 311 So.2d 183 (Fla. App. 1975)............... 49
O’Bryan v. State, 300 So.2d 323 (Fla. App. 1974)....... 67
Owens v. State, 61 So.2d 412 (Fla. 1952)...................... 62
Pait v. State, 112 So.2d 380 (Fla. 1959)........................ 70
Paramore v. Florida, 408 U.S. 935 (1972)...................... 19
Perry v. State, 142 So.2d 528 (Fla. App. 1962)............. 73
Pitts v. Wain wright, 408 U.S. 941 (1972)...................... 19
Polk v. State, 179 So.2d 236 (Fla. App. 1965)________ 67
Proffitt v. State, 315 So.2d 461 (Fla. 1975).......17,33,42,43
Purkhiser v. State, 210 So.2d 448 (Fla. 1968).............. 67
Ramsey v. State, 114 Fla. 766, 154 So. 855 (1934)....... 69
Reed v. State, 267 So.2d 70 (Fla. 1972) ...................... 19
Reyes v. Kelly, 224 So. 303 (Fla. 1969) ....................... 64
Rhodes v. State, 104 Fla. 520, 140 So. 309 (1932) .... 68
Robbins v. State, 312 So.2d 243 (Fla. App. 1975) ____ 49
Sawyer v. State, 313 So.2d 680 (Fla. 1975) ....... 29,30,33,
38, 42, 47, 50, 51
Sawyer v. State, 148 Fla. 542, 4 So.2d 713 (1941) — 74
Slater v. State, 316 So.2d 539 (Fla. 1975) .......42, 46, 47, 59
Smith v. State, 95 So.2d 525 (Fla. 1957) . 62
Smith v. State, 282 So.2d 179 (Fla. App. 1973) _ 70
Smith v. State, 314 So.2d 226 (Fla. App. 1975) .. 49
Songer v. State, 322 So.2d 481 (Fla. 1975) ...........41,42,43
Spinkellink v. State, 313 So.2d 666 (Fla. 1975) ____42, 52
State y. Anderson, 270 So.2d 353 (Fla. 1972) ----------- 64
State v. Dixon, 283 So.2d 1 (Fla. 1973) ....21, 25, 26, 29, 31,
33, 34, 37, 40, 41, 42,
43, 44, 46, 51, 52, 56
State v. Fattornsso, 228 So.2d 630 (Fla. App. 1969)_ 63
PAGE
vu
State v. Lester, Dade County Cir. Ct., No. 73-1001-B
(Verdict—Nov. 6, 1975) ......................... ......... ............ 51
State v. Sokol, 208 So.2d 156 (Fla. App. 1968) ......... 63
State v. Wells, 277 So.2d 548 (Fla. App. 1973) ....... 63
Sullivan v. State, 303 So.2d 632 (Fla. 1974) ...............42, 43
Swan v. State, 322 So.2d 485 (Fla. 1975) .......23, 24, 39, 41,
42,46, 49, 56, 59
Taylor v. State, 294 So.2d 648 (Fla. 1974) .........41, 42, 46,
47, 50, 51
Tedder v. State, 322 So.2d 908 (Fla. 1975) .......32, 37, 38,
39, 41, 42, 46, 49, 56
Thomas v. Florida, 408 TT.S. 935 (1972) .................... 19
Thompson v. State, Fla. Sup. Ct., No. 45,107 (Jan. 21,
1976) ........................................... 23, 24, 38, 41,42, 46, 47, 59
Tillman v. State, 81 Fla. 558, 88 So. 377 (1921) ....... 69
Trop v. Dulles, 356 U.S. 86 (1958) ............................. 21
Wilk v. State, 217 So.2d 610 (Fla. App. 1969) .......... 63
Williams v. State, 297 So.2d 67 (Fla. App. 1974) ..... 58
Williams v. Wainwright, 408 U.S. 941 (1972) ........... 19
Wilson v. Renfree, 91 So.2d 857 (Fla. 1956) ............. 63
Wilson v. State, 306 So.2d 513 (Fla. 1975) ................... 58
Statutes:
United States Constitution Eighth Amendment........... 2
United States Constitution Fourteenth Amendment .... 2
Florida Constitution, art. 1, §15, Fla. Stat. Ann. (1970) 62
Florida Constitution, art. 4, §8(a) (1968 rev.) ........... 73
Fla. Stat. Ann. §27.02....................................................... 61
Fla. Stat. Ann. §775.082 (1975-1976 supp.) ................ 3,5
PAGE
vm
Fla. Stat. Ann. §776.012 (1975-1976 supp.) ................... 73
Fla. Stat. Ann. §776.021 (1975-1976 supp.) .............. 73
Fla. Stat. Ann. §776.031 (1975-1976 supp.) .............. 73
Fla. Stat. Ann. §782.02 (1975-1976 supp.) ................ 98
Fla. Stat. Ann. §782.03 (1965) ............ 73
Fla. Stat. Ann. §782.04 (1975-1976 supp.) ................ 4
Fla. Stat. Ann. §782.04(1) (1975-1976 supp.) ...20,26,27
Fla. Stat. Ann. §782.04(2) (1975-1976 supp.) ........... 26
Fla. Stat. Ann. §782.04(3) (1975-1976 supp.) .........27,69
Fla. Stat. Ann. §782.07 (1975-1976 supp.) ................. 6
Fla. Stat. Ann. §794.011(1) (1975-1976 supp.) ............ 28
Fla. Stat. Ann. §794.011(2) (1975-1976 supp.) ......... 20,28
Fla. Stat. Ann. §794.011(3) (1975-1976 supp.) ............ 28
Fla. Stat. Ann. §794.011(4) (1975-1976 supp.) ............ 28
Fla. Stat. Ann. §794.011(5) (1975-1976 supp.) ........... 28
Fla. Stat. Ann. §919.14 (1969)...................................... 70
Fla. Stat. Ann. §919.23 (1969 supp.) ........................... 20
Fla. Stat. Ann. §921.141 (1975-1976 supp.) ........7,24,29,
30,65
Fla. Stat. Ann. §921.141(1) (1975-1976 supp.) ______ 20
Fla. Stat. Ann. §921.141(2) (1975-1976 supp.) ............ 34
Fla. Stat. Ann. §921.141(4) (1975-1976 supp.) ______ 40
Fla. Stat. Ann. §921.141(5) (1975-1976 supp.) ....21,25,26,
28,30, 54, 57
PAGE
IX
Fla. Stat. Ann. §921.141(6) (1975-1976 supp.) .......21,32,
54, 55
Fla. Stat. Ann. §922.09 (1973) ................................. 10
Fla. Stat. Ann. §922.10 (1973) ................................. 11
Fla. Stat. Ann. §922.11 (1973) ................................. 11
Fla. Stat. Ann. §940.01(3) (1973) ................................ 73
Fla. Stat. Ann. §941.01 (1967) .................................. 28
Fla. R. Crim. Proc. 3.115 (1975) .................................. 61
Fla. R. Crim. Proc. 3.140(a) (1975) ............................. 62
Fla. R. Crim. Proc. 3.140(k) (1975) ............................. 64
Fla. R. Crim. Proc. 3.191 (1975) .................................. 63
Fla. R. Crim. Proc. 3.160(c) (1975) ............................. 65
Fla. R. Crim. Proc. 3.170(g) (1975) ............................. 64
Fla. R. Crim. Proc. 3.171(a) (1975)............................... 64
Fla. R. Crim. Proc. 3.490 (1975) ................................... 70
Fla. R. Crim. Proc. 3.510 (1974-1975 supp.) .............. 73
Fla. R. Crim. Proc. 3.710 (1975) ................................. 23,24
Florida Laws 1972 c. 72-724 ................................... 12
Florida Laws 1974 c. 74-379 ................. 7
Florida Laws 1974 c. 74-383 .................................. 4
PAGE
Other Authorities: PAGE
B lack, Capital P unishment, the I nevitability of
Caprice and M istake (1974) ..................................39, 58,
Brief for N.A.A.C.P. Legal Defense and Educational
Fund, Inc., as Amicus Curiae, Gregg v. Georgia,
No. 74-6257 .......................................................................
Brief for Petitioner, Fowler v. North Carolina, No.
73-7031 ................................................... 18, 39, 60, 61, 73,
Brief for Petitioner, Jurek v. Texas, No. 75-5394 ....18,57,
Brief for Petitioners, Roberts v. Louisiana, No. 75-
5844 ..................................................................................
Brief for United States, as Amicus Curiae, Fowler v.
North Carolina, No. 73-7031 ..........................................
Erhardt & Levinson, Florida’s Legislative Response to
Furman: An Exercise in Futility?, 64 J. Cbim . L.,
Crim . & P ol. S ci. 10 (1973) ........................................
Forster, Resurrection of the Death Penalty: The Va
lidity of Arizona’s Response to Furman v. Georgia,
1974 A riz. L. J. 257 .......................................................
Hearings, Select Committee on the Death Penalty,
Florida House of Representatives (Aug. 4, 9, 1974)
36,
H uie, T he E xecution of P rivate Slovik (5th Dell ed.
1974) .................................................................................
Note, Executive Clemency in Capital Cases, 39 N.Y.U.
L. R ev. 136 (1964) ..........................................................
Note, Florida’s Legislative and Judicial Responses to
Furman v. Georgia: An Analysis and Criticism, 2
F la. St . L. R ev. 108 (1974) .......................... 34, 35, 37,
75
61
76
76
61
60
33
31
58
40
74
45
XI
PAGE
R oyal Commission on Capital P unishment 1949-1953,
R eport 174 (H.M.S.O. 1953) [Cmd. 8932] ............... 59
White, The Role of the Social Sciences in Determining
the Constitutionality of Capital Punishment, 45 A m .
J. Orthopsychiatry 581 (1975)..... .............................. 74
In t h e
Supreme (Emtrt ni tljp llnxtth States
O ctobeb T eem, 1975
No. 75-5706
Charles W illiam P boefitt,
Petitioner,
— v .—
State of F lorida,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND
EDUCATIONAL FUND, INC. AS AMICUS CURIAE
Statement of Interest of the N.A.A.C.P. Legal Defense
and Educational Fund, Inc.
(1) The N.A.A.C.P. Legal Defense and Educational
Fund, Inc., is a non-profit corporation formed to assist
black citizens in securing their constitutional rights by the
prosecution of lawsuits.
(2) The experience of Legal Defense Fund attorneys in
handling capital cases over a period of many years con
vinced us that the death penalty is customarily applied in
a discriminatory manner against racial minorities and the
economically underprivileged. Further study and reflection
led us to the conclusion that the evil of discrimination was
2
not merely adventitious, but was rooted in the very nature
of capital punishment. Accordingly, in 1967, the Legal
Defense Fund undertook to represent all condemned men
in the United States, regardless of race, for whom adequate
representation could not otherwise be found. Additionally,
the Fund provided consultative assistance to attorneys
representing a large number of other condemned defen
dants.
(3) Since this Court’s decision in Furman v. Georgia,
408 U.S. 238 (1972), the Legal Defense Fund has continued
to provide legal assistance to indigent condemned prisoners
of all races. Fund attorneys now represent on appeal more
than one hundred death-sentenced defendants. Among these
are a number of prisoners condemned under Florida’s 1972
death penalty statute; and we have filed certiorari petitions
in this Court on behalf of six such prisoners. Sullivan v.
Florida, No. 74-6377; Hallman v. Florida, No. 74-6168;
Gardner v. Florida, No. 74-6593; Songer v. Florida, No.
75-5800; Alford v. Florida, No. 74-6717; Spenkelink v. Flor
ida, No. 75-5209.
(4) The Court’s decision in the instant case may resolve
the constitutional issues upon which the lives of these six
men and our other Florida clients depend.
(5) Consent has been granted by petitioner and respon
dent for the filing of this brief amicus curiae.
Question Presented
Whether the imposition and carrying out of the sentence
of death for the crime of first degree murder under the
law of Florida violates the Eighth or Fourteenth Amend
ment to the Constitution o f the United States?
3
Constitutional and Statutory Provisions Involved
This case involves the Eighth Amendment to the Con
stitution of the United States, which provides:
“ Excessive bail should not be required nor excessive
fines imposed, nor cruel and unusual punishments in
flicted.”
It also involves the Due Process Clause of the Fourteenth
Amendment.
It further involves the following provisions of the stat
utes of Florida:
Fla. Stat. Ann. §775.082 (1975-1976 supp.) Penalties
for felonies and misdemeanors
“ (1) A person who has been convicted of a capital
felony shall be punished by life imprisonment and shall
be required to serve no less than twenty-five (25)
calendar years before becoming eligible for parole un
less the proceeding held to determine sentence accord
ing to the procedure set forth in section 921.141 results
in findings by the court that such person shall be
punished by death, and in the latter event such person
shall be punished by death.
(2) In the event the death penalty in a capital felony
is held to be unconstitutional by the Florida Supreme
Court or the United States Supreme Court, a person
convicted of a capital felony shall be punished by life
imprisonment as provided in subsection (1).
(3) In the event the death penalty in a capital felony
is held to be unconstitutional by the Florida Supreme
Court or the United States Supreme Court, the court
having jurisdiction over a person previously sentenced
4
to death for a capital felony shall cause sucli person
to be brought before the court, and the court shall
sentence such person to life imprisonment as provided
in subsection (1). . .
Fla. St at. Ann. %782.04 (1975-1976 supp.)1 2 Murder
“ (1) (a) The unlawful killing of a human being, when
perpetrated from a premeditated design to effect the
1 This statute was amended by Florida Laws 1974, c. 74-383,
effective July 1, 1975, to provide:
“ (1) A person who has been convicted of a capital felony
shall be punished by life imprisonment and shall be required
to serve no less than twenty-five (25) years before becoming
eligible for parole unless the proceeding held to determine
sentence according to the procedure set forth in section 921.141
results in findings by the court that such person shall be pun
ished by death, and in the latter event such person shall be
punished by death.
“ (2) In the event the death penalty in a capital felony is
held to be unconstitutional by the Florida Supreme Court or
the United States Supreme Court, the court having jurisdic
tion over a person previously sentenced to death for a capital
felony shall cause such person to be brought before the court,
and the court shall sentence such person to life imprisonment
as provided in subsection (1 ) .”
2 This section was amended in 1974, and the statutory definition
of second degree murder was altered slightly. Florida Laws 1974,
c. 74-383, §14 (effective July 1, 1975) enacts a new §782.04 which
provides:
“782.04 Murder
(1) (a) The unlawful killing of a human being, when perpe
trated from a premeditated design to effect the death of a
person killed or any human being, or when committed by a
person engaged in the perpetration of, or in the attempt to
perpetrate, any arson, rape, sodomy, robbery, burglary, kid
napping, aircraft piracy, or unlawful throwing, placing, or
discharging of a destructive device or bomb, or which resulted
from the unlawful distribution of heroin by a person eighteen
years or older when such drug is proven to be the proximate
cause of the death of the user, shall be murder in the first
degree and shall constitute a capital felony, punishable as
provided in chapter 775.
5
death of the person killed or any human being, or when
committed by a person engaged in the perpetration of,
or in the attempt to perpetrate, any arson, rape, rob
bery, burglary, kidnapping, aircraft piracy, or the
unlawful throwing, placing, or discharging of a de
structive device or bomb, or which resulted from (he
unlawful distribution of heroin by a person over the
age of seventeen (17) years when such drug is proven
to be the proximate cause of the death of the user,
shall be murder in the first degree and shall constitute
a capital felony, punishable as provided in §775.082.
(b) In all cases under this section, the procedure set forth
in §921.141 shall be followed in order to determine sentence
of death or life imprisonment.
(2) The unlawful killing of a human being, when perpe
trated by any act imminently dangerous to another and evinc
ing a depraved mind regardless of human life, although with
any premeditated design to effect the death of any particular
individual, shall be murder in the second dpgree and shall
constitute a felony of the first degree, punishable by imprison
ment for a term of years not exceeding life or as provided in
chapter 755.
(3) When a person is killed in the perpetration of, or in
the attempt to perpetrate, any arson, rape, sodomy, robbery,
burglary, kidnapping, aircraft piracy, or unlawful throwing,
placing, or discharging of a destructive device or bomb by a
person other than the person engaged in the perpetration of
or in the attempt to perpetrate such felony, the person perpe
trating or attempting to perpetrate such felony shall be guilty
of murder in the second degree which constitutes a felony of
the first degree, punishable by imprisonment for a term of
years not exceeding life or as provided in chapter 775.
(4) The unlawful killing of a human being when per
petrated without any design to effect death, by a person en
gaged in the perpetration of, or in the attempt to perpetrate
any felony other than any arson, rape, sodomy, robbery, bur
glary, kidnapping, aircraft piracy or unlawful throwing, plac
ing or discharging of a destructive device or bomb. . . . shall
be murder in the third degree and shall constitute a felony
of the second degree, punishable as provided in chapter 775.
6
(b) In all cases under this section the procedure
set forth in section 921.141 shall be followed in order
to determine sentence of death or life imprisonment.
(2) When perpetrated by any act imminently dan
gerous to another and evincing a depraved mind
regardless of human life, although without any pre
meditated design to effect the death of any particular
individual, or when committed in the perpetration of
or in the attempt to perpetrate any arson, rape, rob
bery, burglary, kidnapping, aircraft piracy; or the
unlawful throwing, placing or discharging of a destruc
tive device or bomb, except as provided in subsection
(1), it shall be murder in the second degree and shall
constitute a felony of the first degree, punishable by
imprisonment in the state prison for life or for such
term of years as may be determined by the court.
(3) When perpetrated without any design to effect
death, by a person engaged in the perpetration of, or
in the attempt to perpetrate any felony other than
arson, rape, robbery, burglary, kidnapping, aircraft
piracy, or the unlawful throwing, placing, or discharg
ing of a destructive device or bomb, it shall be murder
in the third degree and shall constitute a felony of
the second degree punishable as provided in section
775.082, section 775.083, or section 775.084.”
Fla. Stat. Ann. §782.07 (1975-1976 supp.) Manslaughter
“ The killing of a human being by the act, procure
ment or culpable negligence of another, in cases where
such killing shall not be justifiable or excusable homi
cide nor murder, according to the provisions of this
chapter, shall be deemed manslaughter and shall con
stitute a felony of the second degree, punishable as
provided in §775.082, §775.083, or §775.084.”
7
Fla. Stat. Ann. %921.141 (1975-1976 supp.)* Sentence of
death or life imprisonment for capital felonies; further
proceedings to determine sentence
“ (1) Separate proceedings on issue of penalty—
Upon conviction or adjudication of guilt of a defen
dant of a capital felony the court shall conduct a sepa
rate sentencing proceeding to determine whether the
defendant should be sentenced to death or life impris
onment as authorized by section 775.082. The proceed
ing shall be conducted by the trial judge before the
trial jury as soon as practicable. If the trial jury has
been waived or if the defendant pleaded guilty, the
sentencing proceeding shall be conducted before a jury
impaneled for that purpose unless waived by the defen
dant. In the proceeding, evidence may be presented
as to any matter that the court deems unrelevant to
sentence, and shall include matters relating to any of
the aggravating or mitigating circumstances enumer
ated in subsections (6) and (7).3 4 Any such evidence
which the court deems to have probative value may be
received, regardless of its admissibility under the ex
clusionary rules of evidence, provided the defendant
is accorded a fair opportunity to rebut any hearsay
statements. However, this subsection shall not he con
strued to authorize the introduction of any evidence
secured in violation of the constitutions of the United
States or of the State of Florida. The state and the
3 Subsection (1) of this statute was amended slightly in 1974 by
Fla. Laws 1974, c. 74-379 (effective October 1, 1974) to provide
that if through “impossibility or inability” the trial jury is un
able to reconvene for a hearing on sentencing, a special jury may
be summoned.
4 The subsections setting forth aggravating circumstances and
mitigating circumstances in Fla. Stat. Ann. §921.141 (1975-1976
supp.), however, are numbered respectively, (5) and (6 ).
8
defendant or his counsel shall be permitted to present
argument for or against sentence of death.
(2) Advisory sentence by the jury—After hearing
all the evidence, the jury shall deliberate and render
an advisory sentence to the court, based upon the
following matters:
(a) Whether sufficient aggravating circumstances
exist as enumerated in subsection (6 );
(b) Whether sufficient mitigating circumstances exist
as enumerated in subsection (7), which outweigh the
aggravating circumstances found to exist, and
(c) Based on these considerations, whether the de
fendant should be sentenced to life . . . or death.
(3) Findings in support of sentence of death—Not
withstanding the recommendation of a majority of the
jury, the court after weighing the aggravating and
mitigating circumstances shall enter a sentence of life
imprisonment or death, but if the court imposes a sen
tence of death, it shall set forth in writing its findings
upon which the sentence of death is based as to the
facts:
(a) That sufficient aggravating circumstances exist
as enumerated in subsection (6), and
(b) That there are insufficient mitigating circum
stances, as enumerated in subsection (7), to outweigh
the aggravating circumstances. In each case in which
the court imposes the death sentence, the determina
tion of the court shall be supported by specific written
findings of fact based upon the circumstances in sub
sections (6) and (7) and upon the records of the trial
and the sentencing proceedings. If the court does not
make the findings requiring the death sentence, the
9
court shall impose sentence of life imprisonment in
accordance with section 775.082.
(4) Review of judgment and sentence—The judg
ment of conviction and sentence of death shall he sub
ject to automatic review by the Supreme Court of
Florida within sixty (60) days after the certification
by the sentencing court of the entire record, unless
the time is extended for an additional period not to
exceed thirty (30) days by the Supreme Court for
good cause shown. Such review by the Supreme Court
shall have priority over all other cases and shall be
heard in accordance with rules promulgated by the
Supreme Court.
(5) Aggravating circumstances— Aggravating cir
cumstances shall be limited to the following:
(a) The capital felony was committed by a person
under sentence of imprisonment.
(b) The defendant was previously convicted of an
other capital felony or of a felony involving the use
of threat of violence to the person.
(c) The defendant knowingly created a great risk
of death to many persons.
(d) The capital felony was committed while the
defendant was engaged, or was an accomplice, in the
commission of, or an attempt to commit, or flight after
committing or attempting to commit, any robbery,
rape, arson, burglary, kidnapping or aircraft piracy
or the unlawful throwing, placing, or discharging of a
destructive device or bomb.
(e) The capital felony was committed for the pur
pose of avoiding or preventing a lawful arrest or
effecting an escape from custody.
1 0
(f) The capital felony was committed for pecuniary
gain.
(g) The capital felony was committed to disrupt
or hinder the lawful exercise of any governmental
function or the enforcement of laws.
(h) The capital felony was especially heinous,
atrocious or cruel.
(6) Mitigating circumstances.—Mitigating circum
stances shall be the following:
(a) The defendant has no significant history of
prior criminal activity.
(b) The capital felony was committed while the
defendant was under the influence of extreme mental or
emotional disturbance.
(c) The victim was a participant in the defendant’s
conduct or consented to the act.
(d) The defendant was an accomplice in the capital
felony committed by another person and his participa
tion was relatively minor.
(e) The defendant acted under extreme duress or
under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct
to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the
crime.”
Fla. Stat. Ann. §522.09 (1973) Capital cases
“When a person is sentenced to death, the clerk of
the court shall prepare a certified copy of the record of
conviction and sentence, and the sheriff shall send the
1 1
record to the governor. The sentence shall not be
executed until the governor issues a warrant, attaches
it to the copy of the record, and transmits it to the
warden, directing him to execute the sentence at a
time designated in the warrant.”
Fla. Stat. Ann. %922.10 (1973) Execution of death
sentence
“A death sentence shall be executed by electrocu
tion. The warden of the state prison shall designate
the executioner. The warrant authorizing the execution
shall be read to the convicted person immediately be
fore execution.”
Fla. Stat. Ann. %922.11 (1973) Regulation of execution
“ (1) The warden of the state prison or a deputy
designated by him shall be present at the execution.
The warden shall set the day for execution within the
week designated by the governor in the warrant.
(2) Twelve citizens selected by the warden shall
witness the execution. A qualified physician shall be
present and announce when death has been inflicted.
Counsel for the convicted person and ministers of the
gospel requested by the convicted person may be
present. Representatives of news media may be
present under regulations approved by the head of the
department of general services. All other persons
except prison officers and guards shall be excluded
during the execution.
(3) The body of the executed person shall be pre
pared for burial and, if requested, delivered at the
prison gates to relatives of the deceased. If a coffin
has not been provided by relatives, the body shall be
delivered in a plain coffin. I f the body is not claimed by
1 2
relatives, the body shall be given to physicians who
have requested it for dissection or be disposed of in the
same manner as are bodies of prisoners dying in the
state prison.”
Statement of the Case
Petitioner has been condemned for first degree murder
under a statute enacted by a Special Session of the Florida
Legislature on December 8, 1972. Florida Laws 1972, c.
72-724. On July 31, 1973, an “ Indictment for a First Degree
Murder” was returned in the Hillsborough County Circuit
Court charging that petitioner did “unlawfully, and from a
premeditated design to effect the death of J oel R onnie
Medgebow . . . murder the said J oel R onnie Medgebow by
stabbing him to death with a knife.” 6 (R. 204.)6
Petitioner worked for the Maas Bros, department store
in Tampa (R. 302), and had loaded trucks there until about
7:30 p.m. on July 9, 1973. (R. 303.) He then went to
Caesar’s Palace, a nearby bar, with two co-workers and
remained there until 3:00 a.m. on July 10, 1973. (R. 304.)
He was wearing gray trousers and a white Maas Bros,
shirt with the company emblem over his breast pocket.
(R. 313, 323, 331.) When petitioner left the bar, he took
one of the co-workers home, leaving him between 3:30 and
3:45 a.m. (R. 310-311.)
Mrs. Joel Ronnie Medgebow testified that she and her
husband went to a dinner party on July 9, 1973, whero they
6 The State proceeded on the theory that petitioner wan guilty
of either felony— murder or premeditated— deliberated firRt, degree
murder (R. 99, 103, 216, 422, 437, 443) ; the trial court instructed
on both theories (R. 473) j and the jury returned a general ver
dict. finding petitioner guilty of first, degree murder. (R. 491.)
' The indictment appears in the record on an unnumbered page
between page 20 and 21.
13
drank some alcohol and smoked some marijuana. (R. 267-
268.) They returned to their apartment and went to bed
about 10:00 p.ra. (R. 249.) At a little before 5:00 a.m.
(R. 250), Mrs. Medgebow was awakened by the moaning of
her husband. (R. 251.) Suddenly, a man jumped up from
her husband’s side of the bed, hit her “maybe three times”
and ran out of the apartment. (Ibid.) Mrs. Medgebow
switched on the light and saw that her husband had been
stabbed once and was apparently dead. (Ibid.) She removed
the knife, which he had been grasping, from his chest. She
then called the police and ran to get assistance from a
neighbor. (R. 251-252.) As she left the apartment, she
noticed that a sliding glass door to the pool area of the
apartment complex was open. (R. 252.) Mrs. Medgebow
was able to give a detailed description7 of her husband’s
assailant, but she was unable to identify petitioner as the
person who stabbed her husband and struck her. (R. 254.)
According to a pathologist, Joel Ronnie Medgebow bad been
killed by a single stab wound in the heart, seven centi
meters deep. (R. 228-229.) There were no other injuries
to the body. (R. 229).
A sixteen-year old lodger (R. 386) in petitioner’s trailer,
Mrs. Helen Bassett, testified that from her bedroom she
7 According to Mrs. Medgebow, the intruder was a white male
of medium height (R. 255), with a “ relatively good build" (R.
266), a substantial nose with a “ very large” end (ibid.), light
brown straight hair brushed back on both sides and on top (R.
255, 263-264) (some of his hair fell across his forehead and re
sembled hangs (R. 263)— the man was not balding (R. 2 6 4 )), wear
ing a white pin-striped, long-sleeved shirt (R. 255) (with no com
pany name on the pocket. (R. 2 6 2 )), with the shirt tail out and
the sleeves rolled up and light gray or khaki trousers. (R. 255.)
The Medgebow apartment did not appear to have been ransacked
(R. 276, 200), and although objects of “quite substantial” value
(R. 202), jewelry (R. 202-203), and money (R. 203) were in
plain sight, and $142 in cash was in a pair of Medgebow’s trousers
by the bed (ibid.), nothing had been taken from the apartment by
the intruder. (R. 200.)
14
hoard petitioner return to the trailer at about “5:30 a.m.”
on July 10, 1973, and converse with his wife. (R. 875-876.)
Although Mrs. Bassett was unable to hear part of this
conversation (R. 382-383), she heard petitioner say “ fhlo
. . . had killed a man . . . |wlith a butcher knife . . . [while)
he was burglarizing the place” (It. 376). She also heard
petitioner state that “ a lady” was there at the time of the
killing and that he had knocked her out. (R. 379.) Peti
tioner told his wife “ to wait a couple of hours before, her
to call the police [Hie| and to pick up his check the next
day.” (R. 879-390.) Mrs. Bassett then hoard the trailer
door close and someone left the trailer and get into the
Proffitt family car. (R.378.) According to Mrs. Bassett,
she “went into the kitchen und Mrs. Proffitt came in nnd
she was crying and she said ‘Oh my God.’ And I said ‘Yes,
I know. I heard.’ And she says ‘I have to call the police.’
And I says, ‘Well do what you think you have to do.’ And
then . . . she left. She went out.” (Ibid.)
A Tampa detective talked to Mrs. Proffitt early on July
10 (R. 340); a first degree murder warrant was obtained
for petitioner’s arrest (R. 341); and the police broadcast
a radio bulletin for his automobile at 5:34 a.m. (R. 333).
The car was found abandoned on an interstate highway
exit ramp at 6:35 a.m. on July 10 (R. 353-354) by a state
patrolman.
At petitioner’s trial8 the State introduced a white Maas
Bros, shirt found in Petitioner’s trailer (R. 334), which
had a slight surface smear and a stain the size of a pin
head that were identified as human blood (R. 360-363).
This was not a sufficient amount to determine blood type.
(R. 361). The police lifted five latent fingerprints from the
8 During jury selection, a venireman was excluded for cause by
the State on account of his conscientious scruples against the death
penalty (R. 111-112, 114).
15
sliding door* in tho Medgebow apartment (It. 234), but the
“comparable" printh did not match petitioner's (It. 240,
243). Petitioner introduced no evidence at trial.’
The jury wns instructed that it could find petitioner
guilty of first degree murder with a “ ‘premeditated de
sign” ' (It. 473), or first, degree felony murder (It. 475),
second degree murder (It. 47(i), third degree murder (It.
477), manslaughter (ibid.), or not guilty. It returned a
verdict of first degree murder. (It. 491.)
’ Tho theory of petitioner's defense was that Joel Ronnio Medge-
bow had boon killed for reasons relating to illegal marijuana traf
ficking. A t a pro-trial deposition of Mrs. Medgebow, in response
to defense counsel’s question, “do you know if your husband was
a dealer in marijuana?” (R. 607), Mrs. Medgebow said, “ I heard
him talk to some his friends the night before, and I knew that they
were going to pick up marijuana, and from the way they were
talking they were going to pick up quite a bit. What he used to
do is he never was dealing so to speak to people he didn’t know,
but we had some friends, maybe two or three couples, that smoked
marijuana also and he would get— would buy, say, now, a large
amount of marijuana and then he would cut it up and he would
sell it to them, and that way he would make back the money that
he had paid for it, and he would get a couple of lids free then for
himself. He wouldn’t have to pay for his own. But it was never
except to these few people, to my knowledge.” (R. 609). Peti
tioner’s counsel declared in his opening statement that “ [y]ou are
going to find out that there was a quantity of marijuana within
the apartment. You are also going to find out, through testimony
of witnesses, that Ronnie Medgebow sold marijuana” (R. 218-219).
While cross-examining a police officer concerning “contraband”
(R. 296) found in the Medgebow apartment, defense counsel con
tended that there was “a large amount of marijuana in the apart
ment and I think that gives a motive for a criminal act” (R. 297).
The State Attorney admitted that “ [t]he marijuana was found in
Joel Medgebow’s apartment. There is no denying that,” but as
serted that there was “absolutely no connection in this case be
tween marijuana and the death of Joel Ronnie Medgebow” (Ibid.).
A t the close of the evidence, the trial court denied the State’s
mistrial motion based on the reference to marijuana in defense
counsel’s opening statement, but added that “there is no such
testimony in the record to support the statement; the statement
was improper, counsel is to be chastised for making such a state
ment” (R. 424).
16
A sentencing hearing was subsequently held at which the
State introduced one prior Connecticut conviction of peti
tioner for “breaking and entering without permission.” (R.
494.) The State also introduced the testimony of Dr. James
Crumbley, a medical doctor who was not a psychiatrist
(R. 495-501.) See pages 56-57 infra. A majority of the
jury recommended that petitioner be sentenced to death.
(R. 535.) The trial court discharged the jury and appointed
two psychiatrists to examine petitioner. (R. 541.) See page
56 n.61 infra. After their reports were received, the trial
court entered findings o f fact and sentenced petitioner to
be electrocuted.10
10 The court’s written sentencing order set forth the following
four “aggravating circumstances” :
“ (A ) That the Defendant, Charles W illiam Proffitt,
murdered Joel Ronnie Medgebow from a premeditated de
sign and while the Defendant, Charles W illiam Proffitt,
was engaged in the commission of a felony, to-wit: burglary.
“ (B ) That the Defendant Charles W illiam Proffitt, has
the propensity to commit the crime for which he was con
victed, to-wit: Murder in the First Degree and is a danger
and a menace to society.
“ (C) That the murder of Joel Ronnie Medgebow by the
Defendant Charles W illiam Proffitt, was especially hei
nous, atrocious and cruel.
“ (D ) That the Defendant knowing through his voluntary
and intentional acts leading up to and during the course of
the commission of the offense for which he was convicted cre
ated a great risk of serious bodily harm and death to many
persons.”
(R. 206-207.) The court further found that the statutory “miti
gating circumstances” (see pages 32-34 infra) were “primarily
negated” because:
“ (A ) The Defendant Charles W illiam Proffitt, was con
victed in 1967 of Breaking and Entering Without permission.
“ (B ) That the capital felony for which the Defendant,
Charles W illiam Proffitt, was convicted was not committed
while the Defendant, Charles W illiam Proffitt, was under
the influences of extreme mental or emotional disturbance.
“ (C ) That the victim, Joel Ronnie Medgebow, was not a
participant in the Defendant’s conduct nor did the victim,
Joel Ronnie Medgebow, consent to the act.
17
On May 28, 1975, the Florida Supreme Court affirmed
this death sentence. Proffitt v. State, 315 So.2d 461 (Fla.
1975).
Summary of Argument
L
Florida’s 1972 capital punishment statute provides a
three-stage procedure for selecting some convicted capital
offenders to be killed while others live. Under this proce
dure, “ [c]ertain factual situations may warrant the inflic
tion of capital punishment, but, nevertheless, would not
prevent either the trial jury, the trial judge, or [the Florida
Supreme] . . . Court from exercising reasoned judgment
in reducing the sentence to life imprisonment.” Alvord v.
State, 322 So.2d 533, 540 (Fla. 1975). Experience to date
in the administration of the statute confirms that this frank
“ (D ) That the Defendant Charles W illiam Proffitt, was
the only participant in the capital felony for which he has
been convicted.
“ (E ) That the Defendant, Charles W illiam Proffitt, did
not act under extreme duress during the commission of the
offense nor was he, during that period of time under the sub
stantial domination of another person.
“ (F ) That at the time of the commission of the offense the
Defendant’s capacity to appreciate the criminality of his con
duct or to conform this conduct to the requirements of law
was not substantially impaired.
“ (G ) The age of the Defendant, Charles W illiam Prof
fitt, to-wit: age 28 years, has no particular significance and
therefore is not a mitigating circumstance.
(R. 207, emphasis in original). The court thereupon concluded
“that aggravating circumstances do exist, and that these aggravat
ing circumstances far outweigh any circumstances which would
mitigate the sentence in this case.” (Ibid., emphasis added). “ The
Court finds that the Defendant Charles W illiam Proffitt, has
been and would continue to be a danger and a menace to society
and therefore must pay the ultimate penalty, death by electrocu
tion.” (R. 208.)
18
statement of Florida law means exactly what it says: that
in the same case, upon identical facts, a life sentence or a
death sentence may be chosen by three discretionary deci
sion-makers. Thus, life sentences and death sentences may
be and are imposed with “no meaningful basis for distin
guishing” the people who get them. Furman v. Georgia,
408 U.S. 238, 313 (1972) (concurring opinion of Mr. Justice
White). Detailed examination of the new statute and its
use demonstrates that, far from assuring regularity, it
merely diffuses responsibility for the life-death sentencing
choice.
This explicit capital sentencing decision is itself only
one of several mechanisms by which an arbitrary fraction
o f death-eligible offenders is selected to be actually put to
death. Prosecutorial charging and plea-bargaining discre
tion, jury discretion to convict of one or another amor
phously distinguished “ capital” or noncapital crimes, and
gubernatorial discretion to grant or withhold clemency are
all equally uncontrolled and uncontrollable. In its parts
and as a whole, the process is inveterately capricious. To
inflict death through such a process is to inflict unconstitu
tional cruel and unusual punishment within the funda
mental historical concerns of the Eighth Amendment11 that
were recognized in Furman v. Georgia, supra.
n.11 12
The perpetuation of arbitrariness in post -Furman capital
punishment schemes is not mere happenstance. The death
penalty is too cruelly intolerable for our society to apply
11 These concerns are documented in the Brief for Petitioner in
Fowler v. North Carolina, No. 73-7031, at pp. 26-45, and we do
not repeat that documentation in the present brief.
12 This point incorporates by reference the submissions made in
petitioners’ briefs in Fowler v. North Carolina, No. 73-7031, and
Jurek v. Texas, No. 75-5394.
19
it regularly and even-handedly; and it is inherently too
purposeless and irrational to be applied selectively on any
reasoned, non-invidious basis. None of the justifications
advanced to support the cruelty of killing a random smat
tering of prisoners annually survives examination in the
light of the realities of this insensate lottery; and none
begins, of course, to justify the killing of any particular
human being while his indistinguishable counterparts are
spared in numbers that attest to our collective abhorrence
of what we are doing to an outcast few.
I.
Introduction.
In 1972, contemporaneously Avith its decision in Furman
v. Georgia, 408 U.S. 238, this Court summarily vacated a
number of Florida death sentences on the authority of
Furman.13 The Supreme Court of Florida,14 15 the Court of
Appeals for the Fifth Circuit,16 and the District Court for
the Middle District of Florida,16 thereafter vacated addi
tional death sentences which had been imposed pursuant to
13 Anderson v. Florida, 408 U.S. 938; Pitts v. Wainwright, 408
U.S. 941; Boykin v. Florida, 408 U.S. 940; Brown v. Florida, 408
U.S. 938; Hawkins v. Wainwright, 408 U.S. 941; Johnson v.
Florida, 408 U.S. 939; Paramore v. Florida, 408 U.S. 935 ; Thomas
v. Florida, 408 U.S. 935; Williams v. Wainwright, 408 U.S. 941.
14 Anderson v. State, 267 So.2d 8 (Fla. 1972); Chaney v. State,
267 So.2d 65 (Fla. 1972); Reed v. State, 267 So.2d 70 (Fla. 1972);
In re Baker, 267 So.2d 331 (Fla. 1972). See also Donaldson V.
Sack, 265 So.2d 499 (Fla. 1972).
15 Newman v. Wainwright, 464 F.2d 615 (CAS 1972).
16 See Adderly v. Wainwright, 58 F.R.D. 389 (M.D. Fla. 1972).
2 0
Florida’s “Recommendation to Mercy” statute.17 These de
cisions left no doubt that Florida’s pre-1972 death penalty
laws were invalid under the Eighth Amendment.
The Florida Legislature responded by enacting c. 72-724
at a Special Session in December, 1972. This legislation
authorizes the death penalty for first degree murder, Fla.
Stat. Ann. §782.04(1) (1975-1976 supp.), and for sexual
battery of a child eleven years of age or under, Fla. Stat.
Ann. §794.011(2) (1975-1976 supp.). It was approved by
the Governor on December 8, 1972, and took effect im
mediately.
The relevant portions of the 1972 law are set forth fully
at pages 3-12 supra. Summarily, it provides a bifurcated
trial procedure for the administration of the death penalty.
After a defendant is found guilty of a capital felony, a
sentencing hearing is conducted before the jury which
renders an advisory sentencing verdict. The trial court
then pronounces sentence, determining whether there are
“ sufficient” aggravating circumstances to justify the im
position of a death sentence or “ sufficient” mitigating cir
cumstances to justify the imposition of a life sentence.
Fla. Stat. Ann. §921.141(1) (1975-1976 supp.), pages 7-8
17 Fla. Stat. Ann. §919.23 (1969 supp.) provided:
Recommendation to mercy.
“ (1) In all criminal trials, the jury in addition to a verdict
of guilty of any offense, may recommend the accused to the
mercy of the court or to executive clemency, and such recom
mendation shall not qualify the verdict except in capital cases.
In all cases the court shall award the sentence and shall fix
the punishment or penalty prescribed by law.
“ (2) Whoever is convicted of a capital offense and recom
mended to the mercy of the court by a majority of the jury
in their verdict, shall be sentenced to imprisonment for life ;
or if found by the judge of the court, where there is no jury,
to be entitled to a recommendation to mercy, shall be sentenced
to imprisonment for life, at the discretion of the court.”
21
supra. The statute sets forth some aggravating and miti
gating circumstances for the jury and the trial court to
consider. Fla. Stat. Ann. §921.141(5), (6) (1975-1976
supp.), pages 9-10 supra. I f a death sentence is imposed,
the case is automatically reviewed by the Florida Supreme
Court.
These are the procedures under which petitioner Charles
William Proffitt was sentenced to die. Amicus respectfully
submits that his death sentence is a cruel and unusual pun
ishment forbidden by the Eighth and Fourteenth Amend
ments. Such a sentence, so imposed, flouts Furman (Part
II, infra) and is inconsistent with “the evolving standards
of decency that mark the progress of a maturing society,”
Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion
of Chief Justice Warren) (Part III, infra).
n.
The Arbitrary Infliction of Death.
A. At the Penalty Trial.
1. Florida’s 1972 Death Penalty Legislation
Is Explicitly Discretionary.
We start with the observation that Florida’s post-Fur-
man capital sentencing procedure remains avowedly dis
cretionary. In State v. Dixon, 283 So.2d 1, 8-9 (Fla. 1973),
the Supreme Court of Florida declared:
“ [t]he mere presence of discretion in the sentencing
procedure cannot render the procedure violative of
Furman v. Georgia, supra; it was, rather, the quality
of discretion and the manner in which it was applied
that dictated the rule of law which constitutes Furman
v. Georgia, <supra. . . .
22
“ Thus, if the judicial discretion possible and neces
sary under Fla. Stat. §921.141, F.S.A., can be shown
to be reasonable and controlled, rather than capricious
and discriminatory, the test of Furman v. Georgia,
supra, has been met. . . .
“Death is a unique punishment in its finality and in
its total rejection of the possibility of rehabilitation.
It is proper, therefore, that the Legislature has chosen
to reserve its application to only the most aggravated
and unmitigated of most serious crimes. In so doing,
the Legislature has also recognized the inability of
man to predict the myriad tortuous paths which crim
inality can choose to follow. I f such a prediction
could be made, the Legislature could have merely
programmed a judicial computer with all of the pos
sible aggravating factors and all of the possible miti
gating factors included—with ranges of possible impact
of each— and provided for the imposition of death
under certain circumstances, and for the imposition of
a life sentence under other circumstances. However,
such a computer could never be fully programmed for
every possible situation, and computer justice is, there
fore, an impossibility. The Legislature has, instead,
provided a system whereby the possible aggravating
and mitigating circumstances are defined, but where
the weighing process is left to the carefully scrutinized
judgment of jurors and judges.”
So, in Alvord v. State, 322 So.2d 533, 540 (Fla. 1975),
the Court recognized that:
“ [t]he law does not require that capital punishment be
imposed in every conviction in which a particular state
of facts occur [sic]. The statute properly allows some
discretion, but requires that this discretion he reason
23
able and controlled. No defendant can be sentenced
to capital punishment unless the aggravating factors
outweigh the mitigating factors. However, this does
not mean that in every instance under a set state of
facts the defendant must suffer capital punishment.”
Again, in Swan v. State, 322 So.2d 485 (Fla. 1975), the
Florida Supreme Court construed Rule 3.710 of the Florida
Rules of Criminal Procedure (1975), which provides that
“ [i]n all cases in which the court has discretion as to what
sentence may be imposed,” it may require a presentence
report. The Court ruled that “ [s]ection 921.141, Florida
Statutes, vests the trial court with the limited discretion
to impose either the death penalty or life imprisonment
. . . Thus, the discretionary nature of Section 921.141 brings
it within the ambit of Rule 3.710.” 322 So.2d at 489.18
18 It is possible albeit difficult to reconcile the specific holding in
Swan with that in Thompson v. State, Fla. Sup. Ct., No. 45,107,
decided January 21, 1976. Both cases construe Fla. R. Crim. Proc.
3.710 (1975), which provides:
“In all cases in which the court has discretion as to what
sentence may be imposed, the court may refer the case to the
probation and parole commission for investigation and recom
mendation. No sentence or sentences other than probation
shall be imposed on any defendant found guilty of a first
felony offense or found guilty of a felony while under the
age of 18 years, until after such investigation has first been
made and the recommendations of the commission received
and considered by the sentencing judge.”
We have seen in the text that Swan allows a trial judge, in his dis
cretion, to order a presentence investigation report following a
first degree murder conviction. This holding is explicitly based
upon the ground that such a conviction is a case “in which the
court has [sentencing] discretion” within the meaning of the first
sentence of Rule 3.710. But in Thompson, where the death-sen
tenced appellant was 17 years old (slip opinion, at p. 1) and “had
no prior criminal record” (slip opinion, at p. 5 ), the Florida Su
preme Court held that the second sentence of Rule 3.710 did not
require the judge to order a presentence investigation report. The
only support offered for this conclusion was a quotation from the
Committee Notes to Rule 3.710: “ ‘no [pre-sentence investigation]
24
2. The Statutory Enumeration of Aggravating and
Mitigating Circumstances Does Not Control Ar
bitrariness in the Exercise of Capital Sentencing
Discretion.
The iteration of eight “aggravating” and seven “miti
gating” circumstances in Fla. Stat. Ann. §921.141 (1975-
1976 supp.) pages 9-10 supra, does not significantly confine,
channel, or regularize capital sentencing discretion. This
is so for several reasons.
(a ) The breadth o f the statutory aggravating
circumstances.
The enumeration of statutory aggravating circumstances
does not meaningfully narrow the range of first degree
murder cases in which death may be imposed as a penalty.
For these enumerated circumstances are so broadly written
as to make virtually any first degree murder convict a
candidate for a death sentence. One of the statutory
aggravating circumstances, for example, is that the crime
report is necessary where the specific sentence is mandatory, e.g.,
the sentence of death or life imprisonment in a verdict of first
degree murder.’ ” (Slip opinion, at p. 5.)
Obviously, the commentator who wrote this passage either (1)
thought that a first degree murder conviction was not a case “in
which the court has [sentencing] discretion” within the first sen
tence of Rule 3.710, or (2) thought that the only purpose for a
presentenee investigation report was to enable the sentencing judge
to consider the possibility of probation, or (3) thought that this
was the only purpose for requiring a sentencing judge to order a
presentence investigation report in the eases prescribed by the
second sentence of the Rule, although a judge could order a report
for other purposes under the first sentence of the Rule. Equally
obviously, theories (1) and (2) had been rejected by the Florida
Supreme Court in Swan before Thompson came up. So Thompson
can only rest upon the third theory (unless Thompson is the prod
uct of an oversight). The trouble with the third theory is that,
if this is what the commentator had in mind, he chose an extra
ordinarily opaque way to state i t ; and the Florida Supreme Court
in Thompson neither hinted at this theory nor undertook to dis
tinguish (or even to cite) Swan.
25
is “especially heinous, atrocious, or cruel.” Fla. Stat. Ann.
§921.141(5) (h), page 10 supra. The scope of this provision
is illustrated by the Florida Supreme Court’s effort to limit
it:
“we feel that the meaning of such terms is a matter of
common knowledge, so that an ordinary man would not
have to guess at what was intended. It is our interpre
tation that heinous means extremely wicked or shock
ingly evil; that atrocious means outrageously wicked
and vile; and, that cruel means designed to inflict a high
degree of pain with utter indifference to, or even en
joyment of, the suffering of others. What is intended
to be included are those capital crimes where the
actual commission of the capital felony was accom
panied by such additional acts as to set the crime
apart from the norm of capital felonies—the con
scienceless or pitiless crime which is unnecessarily
torturous to the victim.”
State v. Dixon, supra, 283 So.2d at 9.19
Other provisions have a similar wide scope. The pro
vision that “ [t]he defendant knowingly created a great risk
of death to many persons,” Fla. Stat. Ann. §921.141(5) (c),
page 9 supra, was found applicable in petitioner’s case
although (1) the killer of Joel Medgebow encountered only
two people during the perpetration of his crime, and (2)
he killed Mr. Medgebow with a single blow of a knife, which
he did not wield toward or against any other person. All
first degree felony-murder cases are automatically “ aggra
19 Although the Florida Supreme Court has, in cases subsequent
to Dixon, found that particular killings were not “ especially hei
nous, atrocious, or cruel” on their facts, it has not narrowed the
scope of Dixon’s formulation; and the later cases therefore serve
only to qualify the expansiveness of subsection 921.141(5) (h) with
an equal measure of vagueness. See pages 48-50 infra.
26
vated” 20 because Fla. Stat. Ann. §921.141(5)(d), page 9
supra, declares it to be an aggravating circumstance that
first degree murder is committed in connection with each
20 The scope of first degree felony-murder liability in Florida is
itself both broad and vague. A t the time of petitioner’s crime,
Fla. Stat. Ann. 782.0.(1) (a ), page 4 supra, provided:
“ [t]he unlawful killing of. a human being . . . when com
mitted by a person engaged in the perpetration of, or in the
attempt to perpetrate, any arson, rape, robbery, burglary,
kidnapping, aircraft piracy, or the unlawful throwing, placing,
or discharging of a destructive device or bomb . . . shall be
murder in the first degree and shall constitute a capital felony,
punishable as provided in §775.082.”
Second degree felony-murder was defined by Fla. Stat. Am i
§782.04(2), page 6 supra:
“ [w]hen committed in the perpetration of or in the attempt
to perpetrate any arson, rape, robbery, burglary, kidnapping,
aircraft piracy, or the unlawful throwing, placing, or dis
charging of a destructive device or bomb, except as provided
in subsection (1 ), it [the unlawful killing of a human being]
shall be murder in the second degree and shall constitute a
felony of the first degree, punishable by imprisonment in the
state prison for life or for such term of years as may be
determined by the court.”
In State v. Dixon, 283 So.2d 1, 11 (Fla. 1973), the Florida Su
preme Court ruled that these subsections established “two separate
and easily distinguishable degrees of crime, depending upon the
presence of the defendant as a principal in the first or second
degree [citing Fla. Stat. Ann. §776.011 (1972) ]. . . . The obvious
intention of the Legislature in making this change is to resurrect
the distinction between principals in the first or second degree on
the one hand and accessories before the fact on the other, in de
termining whether a party to a violent felony resulting in murder
is chargeable with murder in the first degree or murder in the
second degree. As to the distinction in any particular ease, we
need but refer to the rich heritage of case law on the distinctions
between principals in the first or second degree and accessories
before the fact.”
A t petitioner’s trial, however, the court’s instructions did not
reflect either the language of the relevant statutes or the Dixon
exegesis:
“ The killing of a human being when committed by a person
engaged in the perpetration of or in the attempt to perpetrate
any arson, rape, burglary, kidnapping, aircraft piracy, or un
lawful throwing, placing or discharging of a destructive de-
27
of the same felonies (except one) which formed the
predicate for first degree felony-murder under Fla. Stat.
Ann. §782.04(1) (a), page 4 supra. The excepted felony is
heroin distribution; and killings in the perpetration of
heroin distribution would presumably be “ aggravated”
vice or bomb . . . is murder in the first degree even though
there is no premediated design or intent to kill.”
(K. 475).
“Murder in the second degree is the killing of a human being
by the perpetration of an act imminently dangerous to another
and evincing a depraved mind regardless of human life, al
though without a premediated design to effect the death of any
particular individual and not [sic] done in the perpetration
of or in an attempt to perpetrate any arson, rape, robbery,
burglary, kidnapping, aircraft piracy, or the unlawful throw
ing, placing or discharging of a destructive device or bomb.
• * * *
“If the killing was not from a premediated design to effect
the death of any human being and was not [sic] committed
in the perpetration of or in the attempt to perpetrate any
arson, rape, robbery, burglary, kidnapping, aircraft piracy,
or unlawful throwing, placing or discharging of a destructive
device or bomb, but was in the perpetration of an act im
minently dangerous to another, evincing a depraved mind re
gardless of human life, the defendant should be found guilty
of murder in the second degree.”
(R. 476, 479).
In 1974, the Florida legislature enacted a new definition of
second degree felony-murder, effective July 1, 1975:
“ [w]hen a person is killed in the perpetration of or in the
attempt to perpetrate, any arson, rape, sodomy, robbery, bur
glary, kidnapping, aircraft piracy, or unlawful throwing,
placing, or discharging of a destructive device or bomb by a
person other than the person engaged in the perpetration of
or in the attempt to perpetrate such felony, the person per
petrating or attempting to perpetrate such felony shall be
guilty of murder in the second degree, which constitutes a
felony of the first degree, punishable by imprisonment for a
term of years not exceeding life or as provided in chapter 775.”
Fla. Stat. Ann. §782.04(3) (1975-1976 supp.), page 5, n. 2
supra. Whether this enactment codifies or overrules Dixon is ob
scure.
28
under either the “great risk of death to many persons”
provision, supra, or the “pecuniary gain” provision of Fla.
Stat. Ann. §921.141(5) (f), page 10 supra. The expansive
ness of the latter aggravating circumstances is obvious.21
And the subsection which designates an “aggravating
circumstance” the fact that the “capital felony” of sexual
battery of a person under 11 occurred “ in the commission
of, or an attempt to commit, any . . . rape,” §921.141(5) (d),
page 9 supra, clearly aggravates any sexual assault made
potentially capital by Fla. Stat. Ann. §794.011(2) (1975-
1976 supp.).22
Although the pecuniary gain” provision might be construed
to apply to contract murder” killings, the Florida Supreme Court
has given it a much broader interpretation. In Hallman v. State,
305 So.2d 180, 181 (Fla. 1974), for example, the Florida Supreme
Court affirmed a death penalty where the trial court had found
this aggravating circumstance; the homicide for which appellant
Hallman had been condemned occurred, however, during the course
of a tavern robbery. Thus, this provision is potentially applicable
to any slaying in which something of value is taken from the victim
or the crime scene. Cf. §921.141(5) (d ), p. 9 supra.
22 Florida’s sex crimes statutes were revised in 1974. “ Sexual
battery” is ̂ defined in Fla. Stat. Ann. §794.011(1) (f) (1975-1976
supp.) as “oral, anal, or vaginal penetration by, or union with,
the sexual organ of another or the anal or vaginal penetration of
another by any other object; however, sexual battery shall not in
clude acts done for bona fide medical purposes.” Florida Statutes
Annotated §794.011(2) (1975-1976 supp.) provides that it is a
^capital felony” for a person eighteen years of age or older to
commi[t] sexual battery upon, or injur[e] the sexual organs”
of a person” eleven years of age or younger. Section 921141
(5) (d) (1975-1976 supp.) still refers to the crime of “rape” as a
predicate felony, although there is no such crime in Florida since
Fla. Stat. Ann. §941.01 (1967) was repealed in 1974 and replaced
by the crime of “sexual battery” defined in §794.011(1) (f) (1975-
1976 supp.), quoted supra. Depending on the circumstances,
sexual battery” may be either a capital felony, supra, a “life
felony” (Fla. Stat. Ann. §794.011(3) (1975-1976 supp.)), a
felony of the first degree” (Fla. Stat. Ann. §794.011(4) (1975-
1976 supp.)), or a “felony of the second degree” (Fla. Stat. Ann
§794.011(5) (1975-1976 supp.)).
29
(b) The recognition of nonstatutory aggravating
circumstances.
But the amplitude of the statutory aggravating circum
stances does not alone account for the broad and unpredict
able capital liability established by section 921.141. In ad
dition, trial judges are free to invent—or not invent—
aggravating circumstances on the basis of which particular
defendants may be condemned. The Florida Supreme
Court has declared that “ the most important safeguard
provided by Fla. Stat. §921.141, F.S.A., is the propounding
of aggravating and mitigating circumstances which must
be determinative of the sentence imposed.” Alford v. State,
307 So.2d 433, 444 (Fla. 1975); see also State v. Dixon,
supra, 283 So.2d at 8. However, it has simultaneously ren
dered this “ safeguard” altogether nugatory by holding that
a death sentence may be imposed on the basis of aggravat
ing circumstances not specified in section 921.141. In Saw
yer v. State, 313 So.2d 680 (Fla. 1975), the trial court over
ruled a jury recommendation of a life sentence for first
degree murder and condemned the defendant. The trial
judge’s opinion listed six “ ‘additional facts which the jury
did not have during their deliberation on the advisory sen
tence,’ ” 313 So.2d at 681, to justify the imposition of the
death sentence.23 The Florida Supreme Court recast these
23 The trial judge found, 313 So.2d at 681:
“1. The defendant is charged in the United States District
Court for the Southern District of Florida with the crime of
bank robbery.
“2. This Court takes judicial notice of its own calendar and
notes that there are thirteen (13) additional robbery cases
against the same defendant, and that except for four (4) all
have been heard before a magistrate and the magistrate has
found that the proof was evident and the presumption great
that the defendant, A n t h o n y E. Sa w y e r , committed the
offenses with which he stands charged. In the remaining four
(4) robbery cases the defendant, A n t h o n y E. Sa w y e r , waived
his right for a preliminary hearing.
30
findings in terms of “aggravating circumstances”— although
not the “ aggravating circumstances” iterated in section
921.141—and affirmed appellant Sawyer’s death sentence:
“ [w]e find that the aggravating circumstances including
(1) the facts of the armed robbery incident;24 * (2) the
“3. During the course of the trial the defendant com
municated to various bailiffs that he would take reprisals
against persons conducting the trial in the event he would
be found guilty.
“4. On October 15, 1973, the date the defendant was to
appear before the jury for the rendition of an advisory sen
tence, he refused to leave his cell in the Dade County Jail,
physically assaulted one of the Corrections and Rehabilita
tion officers and had to he forcibly brought before the Court
in handcuffs and leg irons. Counsel for the defendant ob
jected to his being viewed by the jury with handcuffs and leg
irons and additional guards were ordered in the courtroom
and the handcuffs and leg irons were removed prior to a view
by the jury.
“5. The Court finds the defendant is possessed of a violent
and ungovernable temper, that he has demonstrated violence
in the past and that he has the ability to carry out threats of
violence expressed during the courses of the trial.
“6. The defendant according to the testimony adduced dur
ing the trial was supporting a drug habit of $200.00 a day
or $72,000.00 a year. The Court is of the opinion that there
is insufficient assistance available to curb this drug habit and
the defendant could not be rehabilitated to a point where he
would no longer be a danger to the community.
“For the reasons hereinabove stated, this Court, having con
sidered the advisory opinion of the jury as well as the addi
tional circumstances not known to the jury, has made the
determination that the defendant be sentenced to death by
electrocution.”
24 Fla. Stat. Ann. §921.141 (5) (d ), p. 9 supra, provides that it
is an aggravating circumstance if “ [t]he capital felony was com
mitted while the defendant was engaged, or was an accomplice,
in the commission of, or an attempt to commit, or flight after com
mitting or attempting to commit, any robbery. . . .” This pro
vision is not predicated on any particular “facts” of the robbery
incident, and the Florida Supreme Court did not specify which
“facts” were relevant to its “finding.” The trial court, of course,
did not rely on this particular statutory aggravating circumstance
in its sentencing order.
31
prior record including the commission of multiple rob
beries; (3) the fact that the appellant was a hard drug
user, requiring the expenditure of $200.00 per day;
and (4) the specific finding of threats of reprisals
against persons involved in the trial and prosecution of
the appellant and the appellant’s violent temper, taken
together, are more than adequate to justify the im
position of the death penalty in this cause.”
313 So. 2d at 682. The number and nature of factors in
aggravation which the jury and the trial judge may con
sider is thus totally unlimited.
(c ) The vagueness o f the statutory aggravating
circumstances.
The statutory aggravating circumstances are as vague
and amorphous as they are broad. Obviously, phrases such
as “ especially heinous, atrocious and cruel” or “great risk
of death to many persons” are susceptible to varying inter
pretation and application by different juries and trial
judges. The Florida Supreme Court candidly recognized
in State v. Dixon, 283 So.2d 1, 6 (Fla. 1973), that, “ [t]o a
layman, no capital crime might appear to he less than
heinous.” Its attempt to gloss the section in order to give
it some intelligible meaning that might differentiate among
capital crimes is set out on page 25 supra. Subsequent
Florida Supreme Court opinions have not improved upon
the gloss.26 “ [W ]e believe that the Legislature intended
something ‘especially’ heinous, atrocious or cruel when it
26“ [I ] t is difficult to understand how the [Dixon court’s] . . .
definition of heinous as ‘extremely wicked’ differs from its definition
of atrocious as ‘outrageously wicked’ and, in fact, these judiciously
created criteria are just as prone to subjectivity as the words they
are meant to define.” Forster, Resurrection of the Death Penalty:
The Validity of Arizona’s Response to Furman v. Georgia, 1974
A riz. L. J. 257, 285 (footnote omitted).
32
authorized the death penalty for first degree murder.”
Tedder v. State, 322 So.2d 908, 910 (Fla. 1975) (footnote
omitted). See, e.g., Halliwell v. State, 323 So.2d 557, 561
(Fla. 1975), discussed at pp. 49-50 infra:
“ the mutilation of the body many hours later [after the
killing] was not primarily the kind of misconduct con
templated by the Legislature in providing for the
consideration of [the “ especially heinous, atrocious, or
cruel” ] aggravating circumstanc[e]. I f mutilation had
occurred prior to death or instantly thereafter it would
have been more relevant in fixing the death penalty.”
(Emphasis added.)
(d ) T he breadth and vagueness o f the statutory
mitigating circumstances.
The mitigating circumstances enumerated in section
921.141(6), p. 10 supra, are equally viscous. Here, a defen
dant’s life may turn upon the view that his particular
judge and jury choose to take of the meaning and the
application of the questions whether “ [t]he capital felony
was committed while the defendant was under the influence
of extreme mental or emotional disturbance” (a question
that apparently means something other than either legal
insanity26 or the separate mitigating circumstance that
“ [t]he capacity of the defendant to appreciate the crim
inality of his conduct or to conform his conduct to the re
quirements of law was substantially impaired” ), or whether
“ [t]he defendant acted under extreme duress or under
the substantial domination of another person,” or whether
he “was an accomplice in the capital felony committed by
another person and his participation was relatively minor.”
Obviously, these impressionistic judgments cannot he made
26 See note 60 infra.
33
with any predictability or uniformity.27 Concerning the
provision that “ [t]he age of the defendant at the time of
the crime” may be a “mitigating circumstance,” the Su
preme Court of Florida has written:
“ the Legislature has chosen to provide for considera
tion of the age of the defendant—whether youthful,
middle aged, or aged—in mitigation of the commis
sion of an aggravated capital crime. The meaning of
the Legislature is not vague, and we cannot say that
such a consideration is unreasonable -per se. Any in
appropriate application by a jury of the standard
under the facts of a particular case may be corrected
by the Court.” State v. Dixon, supra, 283 So.2d at 10
(emphasis added).
And concerning the mitigating circumstances that “ [t]he
defendant has no significant history of prior criminal activ
ity,” it should be noted that (1) the Florida Supreme Court
apparently28 approved a finding in petitioner’s case that
one 1967 breaking-and-entering conviction “primarily ne
gated” this circumstance, Proffitt v. State, 315 So.2d 461,
466 (Fla. 1975) (R. 207); and (2) a defendant’s “ signifi
cant history of prior criminal activity” may (but need not)
be used alternatively as a nonstatutory aggravating cir
cumstance as in Sawyer v. State, 313 So.2d 680, 681 (Fla.
1975), where the Florida Supreme Court treated criminal
27 See Ehrhardt & Levinson, Florida’s Legislative Response to
Furman: A n Exercise in F utility? 64 J. Ckim. L., Ckim. & Pol.
Sci. 10 17-18 (1973).
28 W e say “ apparently” because the indistinct weighing process
that is used under Florida law to test the “sufficiency” of miti
gating circumstances against the “sufficiency” of aggravating cir
cumstances makes it impossible to determine the significance ac
corded to any one circumstance in a particular case. See pp. 37-38
infra.
34
charges (not convictions) pending against a defendant as
“aggravating,” see page 30 and n.23 supra.
In State v. Dixon, supra, 283 So.2d at 9, the Florida
Supreme Court held that aggravating circumstances must
be proven by the State beyond a reasonable doubt. The
Court has not allocated or defined the burden of proof with
regard to mitigating circumstances, however, and ad
visory sentencing juries and trial courts are left “ free to
exercise unguided discretion when finding mitigating
circumstances.” 29
(e) The absence of any controls in the process of
weighing the “ sufficiency” o f aggravating and
mitigating circumstances.
The manner in which “aggravating” and “mitigating”
circumstances will be weighed and combined in the sentenc
ing process is left to the undirected discretion of jurors
and trial judges. Section 921.141(2), page 8 supra, makes
the ultimate issue whether there are “ sufficient” aggravat
ing circumstances to sentence a defendant to death and
whether there are “ sufficient” mitigating circumstances to
sentence him to life imprisonment.
“The majority in Dixon stated that ‘the procedure to
be followed by the trial judges and juries is not a mere
counting process of X number of aggravating circum
stances and Y number of mitigating circumstances”
. . . . [283 So.2d at 10] But if it is not a counting
process, what is it? Without some legislative formula
tion of the combination of circumstances that justify
executing or not executing a defendant, the decision to
execute is a function of the sentencer’s discretion and
29 Note, Florida’s Legislative and Judicial Responses to Furman
v. Georgia: An Analysis and Criticism, 2 Fla. St. L. Rev. 108, 141
(1974).
35
nothing more. There are three reasons why the mere
requirement that the sufficiency of the aggravating and
mitigating circumstances be weighed does not effec
tively limit the sentencer’s discretion. First, nowhere
in the statute is the meaning of the word ‘sufficient’
developed, yet it is obviously the core of the matter.
Secondly, the statute fails to assign, or even indicate,
the relative weights of the various enumerated circum
stances. Finally, the statute does not ordain what com
bination of mitigating circumstances will outweigh
what combination of aggravating circumstances.” 30
Since the process of appraising “aggravating” and “ miti
gating” circumstances is entirely undirected, one trial judge
may treat a particular aggravating factor as “ sufficient” to
outweigh three or four designated mitigating factors while
another judge chooses to weigh the identical circumstances
obversely. The same circumstances—or rationally undif-
ferentiable circumstances—may be taken as a “ sufficient”
basis for a death sentence in one courtroom, and as insuffi-
cent in another room or on another day. And one sentencer
may find that “ aggravating” circumstance A outweighs
“mitigating” circumstance B in the light of other, non-
statutory circumstances that a different sentencer would
disregard or overlook, or which would cause a different
sentencer to alight on the side of life instead of death.
3. “ Trifurcation” Increases Sentencing Arbitrariness.
We have just seen that the propounding of “aggravating”
and “mitigating” circumstances fails entirely to control or
constrain the arbitrary license of juries, trial judges, or the
Florida Supreme Court to impose—or to decline to impose
30 Note, Florida’s Legislative and Judicial Responses to Furman
v. Georgia: An Analysis and Criticism, 2 Fla. St. L. Rev. 108, 139-
MO (1974) (footnotes omitted).
36
—the death penalty in any particular case. Indeed, Florida’s
1972 statutory capital sentencing procedure is more arbi
trary and capricious than its -pre-Furman death sentencing
system because (1) sentencing discretion is more broadly
disseminated, with no single participant in the process
possessing ultimate responsibility for the life-or-death de
cision and (2) additional uncertainties are injected into the
sentencing process by the provision for an “ advisory” jury
verdict concerning sentence.31
“In point of fact, a death sentence could be imposed
although the entire twelve member jury had recom
mended a life sentence. Likewise, the judge could im
pose a life sentence although the entire jury had
recommended death.
“Under the old system, a majority of the twelve
member jury, in the exercise of their discretion, deter
mined the nature of the punishment. Under the new
law, to the exercise of that discretion is added the op
portunity for the arbitrary, completely unfettered, and
final exercise of discretion by the judge. Clearly, the
new law provides for even more discretion than the
quantum thereof condemned in Furman.”
31 Cf. the following statement by the Attorney General of Florida
at a 1973 legislative hearing before the Select Committee on the
Death Penalty of the Florida House of Representatives: “ General
Shevin . . . ‘W hat I ’m concerned about is that you’re still giving
the jury the option of going back and deciding; and I think again
with almost unbridled discretion, whether or not to impose the
death penalty. . . . I think [this] is just a little bit chancy [sic]
as to whether the court would sustain it or strike it. It’s awfully
sophisticated and I think just for that reason, I think when it
comes before the Court on the attack, that all they’re doing here
is letting the jury go back and again decide all this on a discre
tionary basis. I ’m just afraid the Court may not see the sophisti
cation and go ahead and strike the statute.” Hearings, Select Com
mittee on the Death Penalty, Florida House of Representatives,
at 20-21 (August 9, 1972).
37
State v. Dixon, supra, 283 So.2d at 26 (dissenting opinion
of Mr. Justice Boyd). Manifestly, Florida’s “trifurcated
death penalty statute,” Tedder v. State, 322 So.2d 908, 910
(Fla. 1975),32 has merely compounded the uncertainties of
capital sentencing.
(a) The opacity of the jury’ s advisory verdict.
Since the jury does not specify in its verdict the aggra
vating and mitigating circumstances which it has con
sidered and found, it is impossible for a trial court to
relate the verdict to the sentencing scheme contained in
the governing statute.33 The jury’s sentencing recommenda
tion is an enigmatic “yes” or “no” on the question whether
a capital defendant should be killed, and the trial judge
must speculate to divine the underlying basis of the verdict.
32 “ T h e sentence procedures set out in the act are usually de
scribed as ‘bifurcated.’ In reality, however, the statute creates
three tiers in the sentencing process— the jury, the judge, and
this Court.” Alvord v. State, 322 So.2d 533, 542 n. 10 (Fla. 1975)
(dissenting opinion of Mr. Justice England).
33 “ The provision for a jury recommendation in the Florida
Capital Punishment Act introduces unnecessary discretion
into the sentencing procedure because the statute gives no
guidance regarding the advisory sentence’s relevance. A p
parently, the trial judge should give great weight to the ad
visory sentence, but this is not clear from the statute. I f the
legislature did not intend the advisory sentence to be im
portant, then the jury’s participation in the sentencing hear
ing would be senseless and expensive extravagance. The fur
ther provision that a penalty jury be empaneled, even if there
was no jury at the guilt trial, does seem to indicate that the
legislature intended the trial judge to pay deference to the
jury’s recommendation. Regardless of the weight that the
legislature intended the trial judge to give to the jury ad
visory sentence, however, there is another reason why the
advisory sentences are problematic: they do not report the
jury’s underlying reasons for the sentencing decision reached.”
Note, Florida’s Legislative and Judicial Responses to Furman v.
Georgia: An Analysis and Criticism, 2 Fla. St. L. Rev. 108, 144
(1974) (footnotes omitted).
38
There is no meaningful communication between the
advisory jury and the sentencing judge as to the facts the
jury has found, discounted, treated as “ aggravating,”
treated as “mitigating,” rightly or wrongly considered
important or dismissed as irrelevant.54
(b ) The uncertain importance o f the advisory verdict.
At the trial level at least, sentence is finally imposed by
the judge; but it is uncertain what weight he is to give to
the jury’s advisory sentencing verdict. “In some instances
[the advisory verdict] . . . could be a critical factor in
determining whether or not the death penalty should be
imposed,” LaMadline v. State, 303 So.2d 17, 20 (Fla. 1974);
but presumably, in other undefined circumstances, it is not.
In Tedder v. State, 322 So.2d 908, 910 (Fla. 1975), the
Florida Supreme Court declared:
“ [i]n order to sustain a sentence of death following a
jury recommendation of life, the facts suggesting a
sentence of death should be so clear and convincing
that virtually no reasonable person could differ.”
But the Tedder “ standard” has been as frequently ignored
as used.34 35 In neither Sawyer v. State, 313 So.2d 680 (Fla.
34 Cf. Halliwell v. State, 323 So.2d 557, 561 (Fla. 1975): “We
cannot read the minds of jurors, but it is reasonable to suspect that
the hideous and gruesome conduct of Appellant in dismembering
the body several hours after the murder probably was considered
by the jury in recommending the death penalty.”
35 The “standard,” if it is such, seems to govern only half of
the relationship between trial judge and jury. In Thompson V.
State, Fla. Sup. Ct. No. 45,107, decided January 21, 1976, the
Florida Supreme Court announced that “ [i]t stands to reason that
the trial court must express more concise and particular reasons,
based on evidence which cannot be reasonably interpreted to favor
mitigation, to overrule a jury’s advisory opinion of life imprison
ment and enter a sentence of death than to overrule an advisory
opinion recommending death and enter a sentence of life imprison
39
1975), nor Gardner v. State, 313 So.2d 675 (Fla. 1975),
discussed at pages 48-49 infra, can it be said that “ the facts
suggesting a sentence of death . . . [are] so clear and con
vincing that virtually no reasonable person could differ”
with the trial judge’s overruling of a jury’s recommendation
of mercy.36 And cf. Swan v. State, 322 So.2d 485 (Fla.
1975), discussed at pages 49-50 infra. Of course, an in
tractable difficulty in making the kind of assessment im
plied in Tedder is that it is not possible for a trial court to
know “ the facts” which the jury found, considered, or
rejected. See pages 37-38 supra.
The relationship between the jury’s recommendation and
the trial court’s sentence is further complicated by the fact
ment.” Slip op. at 7. W hy this proposition “stands to reason” if
the appellate court’s task is to develop a rational set of capital
sentencing standards is unclear. Arbitrariness in the operation of
the Florida law may consist as much in capricious grants of mercy
(which are denied to some defendants but given to others) as in
capricious exercises of severity. See B l a c k , C apital P u n i s h m e n t ,
Th e Inevitability op C aprice a n d M istake 47 (1974), quoted
in Brief for Petitioner, Fowler v. North Carolina, No. 73-7031, at
pp. 76-77 n.116.
36 In Dobbert v. State, Fla. Sup. Ct. No. 45,558, decided January
14, 1976, the defendant was convicted of the first degree murder
of his nine year old daughter, the second degree murder of his
seven year old son, and the child abuse of two others of his chil
dren. The jury recommended a life sentence on the first degree
murder count; the trial judge imposed a death sentence; and a
majority of the Florida Supreme Court affirmed. Mr. Justice Eng
land declared in dissent that he would have reversed the death
sentence on the basis of Tedder: “Applying that standard here,
I would hold that reasonable persons could disagree with the trial
judge and that the jury’s recommendation of life imprisonment
should be adopted.” “As the majority observes, by imposing and
discussing the basis for consecutive sentences the trial judge anti
cipated the possibility that reasonable people could differ with
him.” Dobbert v. State, supra, slip. op. at 21 and No. * supra. The
majority in Dobbert did not cite Tedder; and Mr. Justice Overton
wrote separately to say that he had applied the Tedder standard
and found it met, State v. Dohbert, supra, slip op. at 20.
40
that a presentence investigation report may be prepared—
or may not, as the judge chooses—after the jury’s advisory
verdict, and may form a part of the factual basis on which
the final life-or-death decision is based. See note 18 supra.
Cf. H u ie , t h e E x ecu tio n of P rivate S l o v ik 172-173 (5th
Dell ed. 1974). Thus judge and jury may (or may not) pass
the role of fact-finder hack and forth as the deadly game of
hlindman’s bluff progresses.
(c ) The uncertain role o f the Florida Supreme Court.
Death sentences imposed under the 1972 Florida statute
are automatically reviewed by the Florida Supreme Court.
Fla. Stat. Ann. §921.141(4) (1975-1976 supp.), see p. 9
supra. As conceived in State v. Dixon, supra, this appellate
review is intended to provide one of several “concrete
safeguards beyond those of the trial system to protect [a
defendant] . . . from death where a less harsh punishment
might he sufficient.” Id., 283 So.2d at 7.
“ [T]he sole purpose of . . . [this review] is to provide
the convicted defendant with one final hearing before
death is imposed. Thus, it again presents evidence of
legislative intent to extract [sic] the penalty of death
for only the most aggravated, the most indefensible of
crimes.”
Id., 283 So.2d at 8.
No statutory standards of appellate review are pro
vided;37 and the Supreme Court of Florida has reviewed
37 Pre-statutory Florida jurisprudence provides no guidance in
this regard. Prior to the 1972 statute, the rule in Florida was that
appellate courts lacked authority to reduce sentences on grounds
of excessiveness. In Davis v. State, 123 So.2d 703, 707 (Fla. 1960),
for example, the Florida Supreme Court declined to reduce the
death sentence of a defendant condemned for rape, ruling that
“ [i]n a long adhered to line of eases, we have held that where a
41
the death sentences on both procedural38 39 and substantive38
grounds. In Songer v. State, 322 So.2d 481, 484 (Fla. 1975),
the court emphasized that “ [w]hen the death penalty has
been imposed, this Court has a separate responsibility to
determine independently whether the imposition of the
ultimate penalty is warranted.” (Footnote omitted.)
The court has, however, adopted a number of vague,
somewhat differing tests to determine whether a sentence
of death is “warranted” in particular cases. In State v.
Dixon, supra, 283 So.2d at 7, the court defined its role as
assuring that the death penalty would be applied “ to only
the most aggravated and unmitigated of most serious
crimes.” 40 In Halliwell v. State, 323 So.2d 557, 561 (Fla.
1975), it indicated that on the appeal of a death sentence,
it would “ [a]s required by statute . . . weig[h] both the
aggravating and the mitigating circumstances as shown in
the record.” This approach was taken also in Swan v.
State, 322 So.2d 485, 489 (Fla. 1975), where the court
sentence is within the statutory limit, the extent of it cannot be
reviewed on appeal regardless of the existence or non-existence of
mitigating circumstances. . . . [The statute setting the penalty
for rape] fixes the maximum penalty for the offense of the appel
lant at death, and since this is within the statutory limit, it is not
reviewable.” See also Brown v. State, 152 Fla. 853, 13 So.2d 458,
461-62 (1 9 4 3 ); Deloach v. State, 232 So.2d 765, 766 (Fla. 1970);
LaBarbera v. State, 63 So.2d 654, 654-655 (Fla. 1953) ; LaPrell
v. State, 124 So.2d 18, 19 (Fla. App. 1960).
38 Taylor v. State, 294 So.2d 648, 651 (Fla. 1974): “From our
reading of the record it appears that the trial judge in his haste
to impose sentence may not have properly considered the miti
gating circumstances enumerated by the statute and found in the
record.”
39 E.g., Tedder v. State, 322 So.2d 908 (Fla. 1975). See page
49, infra.
40 In Thompson v. State, Fla. Sup. Ct. No. 45,107, decided Janu
ary 21, 1976, the court repeated “that it was the legislative intent
to extract [sic] the penalty of death for only the most aggravated
and the most indefensible of crimes.” Slip op. at 7.
42
avowedly engaged in a plenary weighing of sentencing
factors: “ [hjaving considered the total record, we are of
the opinion that there were insufficient aggravating cir
cumstances to justify the imposition of the death penalty.”
The court had earlier examined the record to discern
whether “ [t]he State offered . . . [anything] to show the
necessity for electrocution.” 322 So.2d at 488 (emphasis
added). Yet in Thompson v. State, Fla. Sup. Ct. No. 45,107,
decided January 21, 1976, the court concluded only that it
“ [found] no objection to the jury’s determination,” slip op.
at 7. The formulation in Alvord v. State, 322 So.2d 533, 540
(Fla. 1975), was that “ [i]t is our responsibility to review
the sentence in the light of the facts presented in the evi
dence, as well as other decisions, and determine whether
or not the punishment was too great.”
Other than these pronouncements, no standards of appel
late review have emerged from the nineteen cases in winch
the Florida Supreme Court has reviewed death penalties
imposed under the new statute.41 All that is clear is that
the court has affirmed twelve death sentences and reversed
seven death sentences.42 None of its written opinions for
41 Barden v. State, Fla. Sup. Ct. No. 45,108 & 45,056 (February
18, 1 9 7 6 ); Douglas v. State, Fla. Sup. Ct. No. 44,864 (February
18, 19 7 6 ); Thompson v. State, Fla. Sup. Ct. No. 45,107 (Jan. 21,
1976); Dobbert v. State, Fla. Sup. Ct. No. 45,558 (Jan. 14, 1976);
Halliwell v. State, 323 So.2d 557 (Fla. 19 7 5 ); Tedder v. State,
322 So.2d 908 (Fla. 1975); Alvord v. State, 322 So.2d 533 (Fla.
1975); Songer v. State, 322 So.2d 481 (Fla. 197 5 ); Swan v. State,
322 So.2d 485 (Fla. 197 5 ); Slater v. State, 316 So.2d 539 (Fla.
1975); Proffitt v. State, 315 So.2d 461 (Fla. 197 5 ); Sawyer v.
State, 313 So.2d 680 (Fla. 1975); Gardner v. State, 313 So.2d 675
(Fla. 1 9 7 5 ); Spinkellink v. State, 313 So.2d 666 (Fla. 1975);
Alford v. State, 307 So.2d 433 (Fla. 19 7 5 ); Hallman v. State, 305
So.2d 180 (Fla. 197 4 ); Sullivan v. State, 303 So.2d 632 (Fla.
1974); LaMadline v. State, 303 So.2d 17 (Fla. 1974); Taylor v.
State, 294 So.2d 648 (Fla. 1974). See also, State v. Dixon, 283
So.2d 1 (Fla. 1973) (pre-trial certification).
42 See Appendix A , infra.
43
affirmance assays the slightest explanation of why “a less
harsh penalty [is not] . . . sufficient,” State v. Dixon, supra,
283 So.2d at 7; nor has the court offered the meagerest
explication of any other reasoned principle of decision.43
Without the articulation of any standards, without the
enunciation of a reasoned opinion on the sentencing ques
tion, without analysis of the significance of factual elements
thought to justify (or not to justify) the sentence under
review, it is far from apparent how the Florida Supreme
Court can assure that the death sentence is being inflicted
“for only the most aggravated, the most indefensible of
crimes.” Id. at 7.44
43 The Florida Supreme Court’s manner of announcing its sen
tencing review findings has varied considerably. Often, the court
simply announces the result without any explication. E.g. Songer
v. State, 322 So.2d 481 (Fla. 1975); Sullivan v. State, 303 So.2d
632 (Fla. 1974). Sometimes the court simply quotes the sentencing
findings of the trial judge. E.g., Proffitt v. State, 315 So.2d 461
(Fla. 197 5 ); Gardner v. State, 313 So.2d 675 (Fla. 1975); Hall
man v. State, 305 So.2d 180 (Fla. 1974). In a very few cases, the
court has undertaken to compare the case under review with other
capital cases. Alford v. State, 307 So.2d 433 (Fla. 1975); Alvord
v. State, 322 So.2d 533 (Fla. 1975).
44 The deficiencies in the 1972 capital punishment procedures,
discussed above, nullify, of course, any rational appellate review.
In Taylor v. State, 294 So.2d 648 (Fla. 1974), for example, the
Florida Supreme Court reversed a death penalty imposed by the
trial judge against the jury’s recommendation of mercy. The court
relied on the advisory verdict (the reasons for which were un
intelligible, since it consisted of a simple recommendation that the
defendant be sentenced to life imprisonment), and it speculated
concerning the reasons the jury could have found to justify its
verdict. 294 So.2d at 652. It declared that “ [a] 11 of this [the miti
gating circumstances which might possibly have been found] taken
together could have substantially impaired the rationality of ap
pellant to the point where the jury, believing his complicity, never
theless rejected the idea of the imposition of the ultimate penalty.
We find no objecton to the jury’s determination.” 294 So.2d at
651-652 (emphasis in original). Florida’s capital procedures in
sured that the Court had to guess at the reasons for the jupr’s
verdict— the jury might have made its decision for the surmised
44
But even if it could do this, it could not assure that life
sentences were not being meted out capriciously and in
overwhelming numbers for precisely the same “most ag
gravated, . . . most indefensible . . . crimes.” For in Florida,
there is no appellate review of a trial judge’s imposition
of a life sentence in a first degree murder case; such cases
are not appealable as of right to the Florida Supreme
Court; they may not be appealed at all; and there is still
less likelihood that the Florida Supreme Court will ever see
the many cases involving lesser-included-offense convic
tions45—frequently resulting from pleas of guilty—all of
which make up the record of the way in which Florida’s
1972 death penalty is being administered. Consequently,
another “ infirmity in Florida’s appellate review provision
is that review by the supreme court cannot protect against
arbitrary mitigation of the death penalty at the trial court
level . . . . [E]ven if all those executed are found by the
supreme court to be guilty of the most ‘aggravated’ and
‘indefensible’ crimes, some of those spared at the trial * 46
reasons, or for no reasons at all. The rationale for its verdict was
unknown and unknowable by the Supreme Court which relied upon
that verdict.
See pages 46-48, infra.
46 The Florida Supreme Court noted in State v. Dixon, supra,
283 So.2d at 8 : “ [c]ases involving life imprisonment [are] . . .
not directly reviewable by [the Florida Supreme] . . . Court, and
the District Courts of Appeal [are] . . . not . . . empowered to
overturn the trial judge on the issue of sentence.” Mr. Justice
England has pointed out that “ [t]he statute defies uniformity at
the outset by limiting our review to only the capital cases where
the judge imposes death.” Alvord v. State, 322 So.2d 533, 542,
n .l l (Fla. 1975) (dissenting opinion). “ Since we do not have
jurisdiction to review capital cases resulting in a sentence of life
imprisonment (absent some other basis for our jurisdiction), we
have no idea how many persons convicted of capital crimes have
avoided a judge’s sentence of death. Nor do we know what the
juries recommended in those cases.” Id. at 542 n.2.
45
court level may also be guilty of that same quality of
criminal activity.” 46
4. The Results of “ Trifurcation” : Caprice and
Arbitrariness.
Dissenting from the affirmance of a death sentence in
Alvord v. State, 322 So.2d 533, 541-542 (Fla. 1975), Mr.
Justice England wrote:
“Under the multiple views expressed in Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972), the selective, arbitrary imposition of the death
penalty is prohibited by the Eighth and Fourteenth
Amendments to the United States Constitution. I be
lieve our death sentence statute fosters rather than
avoids the proscribed unbridled discretion. I share the
views of our statute which were expressed by Mr.
Justice Ervin and Mr. Justice Boyd in State v. Dixon,
283 So.2d 1, 11, 23 (Fla. 1973) (dissenting). I can now
add to their analyses that Florida’s experience under
the statute proves their perceptions correct.
“ Since the sentencing statute was enacted, we have
reviewed several capital felony cases in which the
death sentence could have been imposed. These cases
range from love triangle deaths to execution-type slay
ings. In two decided cases a jury recommended life,
the judge imposed a death sentence, and we affirmed
his sentence. In four decided cases a jury recom
mended death, the judge concurred, and we affirmed.
In one decided case the defendant entered a guilty plea,
no jury recommendation was received (for which defi
ciency we reversed), and the judge imposed a sentence 46
46 Note, Florida’s Legislative and Judicial Responses to Furman
v. Georgia: A n Analysis and Criticism, 2 F la . St. L. R ev. 108, 147
(1974) (footnotes omitted).
46
of death. In another case a jury recommended and
the judge sentenced life imprisonment. In still an
other, a jury recommended, the judge sentenced and
we affirmed a death sentence, while an accomplice was
allowed a life sentence on the basis of a plea bargain
for his testimony.
“Perhaps it would be possible to analyze each of
these cases, together with those life sentences we have
never reviewed, and concluded that Florida’s trifur
cated sentence procedure exhibits a non-discriminatory
pattern consistent with the dictates of Furman. I can
not, however. I believe our statute will produce Fur-
maw-prohibited arbitrariness so long as human discre
tion is injected into one, let alone three, stages of the
sentencing process.” (Footnotes omitted.)
The life-and-death results in particular cases that have
come to judgment under the 1972 Florida death penalty
statute completely bear out Mr. Justice England’s conclu
sion. There are now three capital lotteries in Florida:
First, a defendant takes his chances before an advisory
sentencing jury which, for untold and untellable reasons,
makes a recommendation as to whether he will live or die.
Statistics do not appear to have been collected concerning
the proportion of capital cases in which the jury has recom
mended mercy and the judge has concurred.
Second, the trial judge imposes sentence, independently
but (somehow) influenced by the jury’s advisory verdict.
In State v. Dixon, supra, 283 So.2d at 8, the Florida Su
preme Court emphasized that the trial judge’s power to
overrule the jury’s recommendation would correct for lay
men’s outrage at capital crime:
“a trial judge with experience in the facts of criminality
possesses the requisite knowledge to balance the facts
47
of the case against the standard [of?] criminal activity
which can only be developed by involvement with the
trials of numerous defendants. Thus the inflamed emo
tions of jurors can no longer sentence a man to die; the
sentence is viewed in the light of judicial experience.” 47
But for some defendants at least, the trial judge’s sentenc
ing power has proved to be another running of the gaunt
let: out of 70 Florida defendants who have been sentenced
to death under the new statute48 at least 20 have been con
demned by a trial judge following his rejection of a jury’s
recommendation of life imprisonment.49 The Florida Su
preme Court has reversed five such death sentences, Tedder
v. Sta,te, 322 So.2d 908, 910 (Fla. 1975); Slater v. State, 316
So.2d 539, 542 (Fla. 1975); Thompson v. State, Fla. Sup.
Ct. No. 45,107, decided January 21, 1976, slip opinion at
7; Swan v. State, 322 So.2d 485, 489 (Fla. 1975); Taylor
v. State, 294 So.2d 648, 652 (Fla. 1974) ;B0 and has affirmed
four such death sentences, Gardner v. State, 313 So.2d 675
(Fla. 1975); Sawyer v. State, 313 So.2d 680 (Fla. 1975);
Dobbert v. State, Fla. Sup.Ct. No. 45,558, decided January
47 Thus, although all capital crimes were likely to seem “no . . .
less than heinous” to laymen, 283 So.2d at 8, trial judges could
be counted on to take a more discriminating view, ibid.
48 See Appendix A , infra, for a list of the death sentences which
have been imposed under the statute as of February 1, 1976.
49 Trial judges disregarded jury recommendations of life impri
sonment and imposed the death penalty in the Taylor, J. Jones,
Sawyer, Douglas, McCaskill, Williams, Thompson, Gardner, Swan,
Burch, Slater, Dobbert, McCray, Tedder, Provence, Buckrem, PL.
Brown, Chambers, L. Jones, and Carnes cases; the death penalty
was imposed without any jury recommendation in the Holmes,
LaMadline and Agen cases after the defendants pleaded guilty;
see Appendix A , infra, for the full citations of these cases.
60 The death sentence in Taylor was reduced by the Florida Su
preme Court on an unclear mixture of both substantive and pro
cedural grounds, see note 44 supra.
48
14, 1976; Douglas v. State, Fla. Sup. Ct. No. 44,864, de
cided February 18, 1976; but it has developed no meaning
ful guidelines for trial court sentencing either where the
jury does or does not recommend death. See pages 38-40,
supra.
Third, the Florida Supreme Court reviews death sen
tences in the manner described at pages 40-45, supra.
Because this is the stage of greatest visibility and con
stancy of personnel, it is particularly instructive to observe
how it has worked. An examination of the death-sentencing
decisions of that court discloses that, even here, different
results have been reached in cases which are factually
similar, and the Florida Supreme Court has reversed death
sentences in cases that involve more aggravated factual
circumstances than do some cases in which it has affirmed
death sentences. 1
(1) The court affirmed a death sentence in Gardner v.
State, 313 So.2d 675 (Fla. 1975), where appellant, in a
drunken stupor, brutally beat his wife to death. The evi
dence revealed that appellant had been drinking heavily for
the twenty-four hours before the killing, that he fell asleep
with his wife’s dead body, that he sought help for her the
next morning “because his wife did not appear to be breath
ing properly,” 313 So.2d at 679, that he made no attempt
to escape, and that he exhibited remorse upon learning that
his wife was dead. See 313 So.2d at 678-679. The jury
recommended mercy, but the Florida Supreme Court
affirmed the trial court’s imposition of a death sentence.
In dissent, Mr. Justice Ervin declared, “ I do not believe
that the statutes contemplate that a crime of this nature is
intended to be included in the heinous category warranting
the death penalty. A drunken spree in which one of the
spouses is killed traditionally has not resulted in the death
49
penalty in this state.'1 . . . [T]his case involv[es] a crime
of passion in a drunken spree.” 313 So.2d at 679. The
Court apparently discovered the force of Mr. Justice
Ervin’s point in Tedder v. State, 322 So.2d 908 (Fla. 1975),
where it reversed the death penalty imposed upon a defen
dant (the trial court had overruled the advisory jury’s
verdict of mercy) who had fired several shots at his wife
and mother-in-law during a marital dispute and killed the
mother-in-law. Notably, this defendant had taken his wife
away at gunpoint from her wounded mother: “ [a]s they
left, his wife saw her mother lying on the floor in a hallway.
Appellant would not permit his wife to examine the body.”
Tedder v. State, supra, 322 So.2d at 909.'*
(2) Gardner involved a gruesome beating, to be sure.
But in Swan v. State, 322 So.2d 485 (Fla. 1975), the court
vacated a death penalty imposed upon a burglar who, with
a confederate, had administered a fatal “ severe beating,”
322 So.2d at 486, and “ torture,” 322 So.2d at 487, to a forty-
nine year old female housekeeper who was in poor health.
And in Halliwell v. State, 323 So.2d 577 (Fla. 1975), the
court reversed a death sentence imposed upon a defendant
who had been convicted of murdering his paramour’s 51
51 W e have found in the Florida decisions for the year 1975 a
number of second degree murder and manslaughter convictions in
factual circumstances similar to the Gardner case. See, e.g., second
degree murder convictions (Lattimore v, Florida, 323 So.2d 5
(Fla. App. 1975); Beasley v. State, 315 So.2d 540 (Fla. App.
1975) ; Smith v. State, 314 So.2d 226 (Fla. App. 1975); McCrae
v. State, 313 So.2d 429 (Fla. App. 1975); Noel v. State, 311 So.2d
182 (Fla. App. 1975); Melero v. State, 306 So.2d 603 (Fla. App.
1 9 7 5 )) ; manslaughter convictions (Hanna v. State, 319 So.2d 586
(Fla. App. 1975); Calvo v. State, 313 So.2d 39 (Fla. App. 1975);
Robbins v. State, 312 So.2d 243 (Fla. App. 1975)). Gardner ap
pears to be the only case in this year where the slaying of a spouse
or lover by the defendant was capitally punished, whatever the
aggravation.
62 Appellant Tedder’s mother-in-law died from gunshot wounds
twenty-eight days later. Ibid.
50
husband. Defendant had beaten the victim to death with an
iron bar and had then hacked the body into several pieces.
The Florida Supreme Court reversed the death penalty
which had been recommended by the jury and imposed by
the trial judge, ruling that “a finding of premeditated
murder [was justified], but we see nothing more shocking
in the actual killing [as distinguished from the subsequent
dismemberment] than in a majority of murder cases
reviewed by this Court.” 323 So.2d at 561.63
(3) The facts of Taylor v. State, 294 So.2d 648 (Fla.
1974), and Sawyer v. State, 313 So.2d 680 (Fla. 1975),
unquestionably differ in some regards (as do the facts in
any two cases), but the differences hardly seem commen
surate with differences between life and death.64 In both
63 As in Taylor v. State, supra, note 44, the court speculated
concerning the reasons for the jury’s advisory verdict of death:
“W e cannot read the minds of jurors, but it is reasonable to sus
pect that the hideous and gruesome conduct of Appellant in dis
membering the body several hours after the murder probably was
considered by the jury in recommending the death penalty.”
Halliwell v. State, supra, 323 So.2d at 561.
64 Taylor v. State, 294 So.2d 648, 649 (Fla. 197 5 ):
“The evidence presented at trial established that the de
fendant, in the company of two other males, entered a ‘package
store’ owned and operated by Larry Phillips and his 72 year
old father, the decedent, Max Phillips. The defendant, with
pistol in hand, jumped over the counter after ordering an
employee and a customer to lie face-down on the floor. During
an ensuing struggle between the defendant and Max Phillips,
Larry Phillips drew a pistol from beneath the counter and
shot the defendant in the abdomen. . . .
“Larry Phillips testified that he heard a shot strike the
bottles on the shelf near him as he attempted to activate a
silent alarm in the rear of the store. Other shots were fired,
three of which struck and killed Max Phillips. The fatal shot
was shown to have entered the body of the decedent on a
downward trajectory. The pistol used by Phillips was shown
to have not fired the bullets which killed the decedent. The
weapon carried by the defendant, Taylor, was never located,
nor was the murder weapon found.”
51
cases, black defendants were convicted of slaying white
liquor store clerks during the course of an armed robbery.
In both cases, more than one armed robber participated in
the crime,* 66 and there was forcible resistance by the store
personnel. In neither case was it established that the defen
dant intentionally shot the victim.66 In both cases, the
sentencing juries unanimously recommended life imprison
ment, and the trial court imposed the death penalty. Yet
Sawyer v. State, 313 So.2d 680 (Fla. 1975) :
“ The facts are as follows: On January 12, 1973, the appellant
and two other individuals entered a liquor store in Dade
County, Florida, for the purpose of perpetrating a robbery.
The appellant, with a revolver in his hand, directed the pro
prietor’s son to turn over all the money. The son turned over
the money in the cash register, and then the appellant pushed
the son into the back room, questioning him with regard to
‘the rest of it.’ A t this point, the son, his father and appel
lant were in the back room together. The wife of the pro
prietor picked up a bottle of whisky and, while standing be
hind the appellant, struck him over the head with it. Simul
taneously, the owner grabbed the appellant around the chest
in an attempt to subdue him. During the struggle, the gun
which the appellant was holding discharged twice, striking
the son and causing his death. The owner released appellant,
. . . and the appellant fled the store.”
66 Sawyer’s two co-defendants, Dixon and Lester, were subse
quently acquitted of complicity in this felony-murder. State V.
Dixon, Dade County Cir. Ct. No. 73-1001-A (verdict-January 11,
19 7 4 ); State v. Lester, Dade County Cir. Ct. No. 73-1001-B
(verdict-November 6, 1975).
66 In Taylor, the evidence clearly suggested that the defendant
did not fire the fatal shot. Taylor v. State, supra, 294 So.2d at
652. In Sawyer, the fatal shot was fired from appellant’s gun
during a struggle with someone who was not the victim of the
shooting. Sawyer v. State, supra, 313 So.2d at 680. See note 54
supra. Under the established doctrine of felony-murder, of course,
no finding of intent or premeditation is necessary to justify a
conviction for first degree murder, see, e.g., Jefferson v. State, 128
So.2d 132, 136 (Fla. 1961), and one felon may be held vicariously
liable for an unintentional killing by a co-felon, a police officer,
or a person resisting the felony during the course of the felony.
See, e.g., Hornbeck v. State, 77 So.2d 876, 878-879 (Fla. 1955);
Griffith v. State, 171 So.2d 597, 597-598 (Fla. App. 1965).
52
in one case, the Florida Supreme Court reversed the death
penalty, and in the other, it affirmed the trial court’s
sentence on the basis of “aggravating circumstances” not
specified in the Florida capital punishment statute, see
pages 29-31, supra. These latter circumstances show that
Anthony Sawyer—like Titus Oates—was a very bad man
(although he had not been convicted of the various non
capital offenses with which he was charged); but the
Florida Supreme Court had earlier said that the death
penalty was to be reserved for the “most aggravated [and]
. . . indefensible of crimes,” 67 not the most aggravated and
indefensible of people.
(4) Again, the court vacated a death penalty in Halli-
well v. State, pages 49-50 supra, imposed for a gruesome
slaying found by the trial court to be “ especially heinous,
atrocious or cruel” and found by the advisory jury to be
deserving of death. The court affirmed a death penalty in
Spinkellink v. State, 313 So.2d 666 (Fla. 1975), on the basis
of a similar finding by the trial court and recommendation
by the jury in a less aggravated case where there had been
considerable provocation for the killing. In Spinkellink,
the defendant had picked up the deceased, who was hitch
hiking; “both men had criminal records, and both were
heavy drinkers.” 313 So.2d at 668. “During their travels
Appellant [Spinkellink] learned first hand of Szymankie-
wicz’s [the deceased’s] vicious propensities when the latter
forced him to have homosexual relations with him, when
the latter played ‘Russian Roulette’ with him and boasted
of killing a fellow inmate while in prison. After checking
into a motel in Tallahassee, Appellant [Spinkellink] dis
covered that his traveling companion had relieved him of
his cash reserves.” Ibid. Spinkellink returned to recover * 25
67 State v. Dixon, 283 So.2d 1, 8 (Fla. 1973), quoted at page
25 supra.
53
his money, and Szymankiewicz was later found dead in the
motel room, shot twice with his own pistol, perhaps while
sleeping. Spinkellink was subsequently convicted of Szy
mankiewicz’ murder. Ibid. The Florida Supreme Court
noted that “while admitting that he had fired the gun that
killed Szymankiewicz, Appellant [Spinkellink] sought to
show mitigating circumstances by showing, first, that he
was carrying the gun [of Szymankiewicz] because he was
afraid for his own life, and secondly, that the gun dis
charged during a fight between the two.” Ibid. Although
the Court stated that “ [a]dmittedly, the evidence clearly
shows that the deceased was an individual of vicious tem
perament and that Appellant [Spinkellink] was justified
in concluding that he would do well to sever their relation
ship,” 313 So.2d at 670, it rejected Spinkellink’s claim that
the factual circumstances of his relationship with the de
ceased and his putative self-defense claim established any
mitigating circumstances.68
68 Mr. Justice Ervin wrote in dissent, 313 So.2d at 673:
“ [i]n this case it appears that Appellant at the time of the
homicide was a 24-year-old drifter who picked up Szymankie
wicz [the deceased], a hitchhiker. Both had criminal records
and both were heavy drinkers. Szymankiewicz, the victim in
this case, was a man of vicious propensities who boasted of
killings and forced Appellant to have homosexual relations
with him. Appellant discovered that Szymankiewicz had ‘re
lieved him of his cash reserves.’
“ It was under these conditions that Appellant returned to
the motel room where the homicide occurred. Appellant testi
fied he shot Syzmankiewicz in self-defense. Evidence to the
contrary was only circumstantial. In fact, only through such
evidence was it possible to infer the crime was premeditated
and different from Appellant’s direct testimony that he shot
Szymankiewicz in self-defense. The reasoning of this Court
on the suddenness in which premeditation may be found is
suspect and allowed the prosecution undue latitude to readily
shift from the theory of felony murder to premeditated murder.
“ It does not appear to me that in this situation there was
sufficient certainty of premeditated guilt and heinousness to
warrant the death penalty. W hen the nature of the relation
54
5. The Death Sentence Imposed Upon Petitioner Was
Characteristically Arbitrary.
The vagaries of Florida’s 1972 death penalty statute
are manifest in petitioner’s case. On the basis of the trial
testimony, of an otherwise undescribed 1967 Connecticut
conviction for “the crime of breaking and entering without
permission,” R. 494,59 and of the testimony of Dr. James
Crumblev, a medical doctor who was not a psychiatrist,* 60
between Appellant and Syzmankiewiz is taken into account,
along with the viciousness of the victim’s character and his
theft of Appellant’s money, it is obvious that hostility existed
between them that could have produced a mortal encounter
that involved self-defense shooting.”
69 Apparently the relevance of this conviction was to “primarily
negatfe] ” the “ mitigating circumstance” set forth in Fla. Stat.
Ann. §921.141(6) (a) : that “ [t]he defendant has no significant
history of prior criminal activity.” See pp. 32-34 supra. Under
Fla. Stat. Ann. §921.141(5) (b) it is an “aggravating circumstance”
that [t] he defendant was previously convicted of another capital
felony or of a felony involving the use or threat of violence to
the person.” But the state did not claim that the Connecticut
conviction qualified as such an “aggravating circumstance,” and
it did not elucidate the underlying facts of this 1967 crime.
60 Dr. Crumbley served as “a consultant to the Sheriff’s Depart
ment for diagnostic problems” (R. 496-497) and had interviewed
petitioner twice for “ [approximately fifteen or twenty minutes”
(R, 501). Dr. Crumbley testified that petitioner revealed to
him that he “had this uncontrollable desire which built up to a
terrific degree of unbearable tension for [sic] which he fought as
hard as he could and, finally, one evening after work on the way
home the uncontrollable desire came again that was of such in
tensity that he knew that he must kill someone.” (R. 498.)
“ Q. [Assistant State Attorney] Is it your opinion that based
on his statements to you that this man is a dangerous man
could be a danger in the future to society?
A . [Dr. Crumbley] Absolutely.
Q. He could also be a danger to other inmates of any facility
for incarceration?
A . Yes, he could.”
(R. 500.) On cross-examination, however, Dr. Crumbley’s testi
mony took a new turn in response to questions which sought to
55
the jury rendered an advisory sentencing verdict which
stated simply, “ [a] majority of the jury advise and recom
mend to the Court that it impose the death penalty upon the
defendant, Charles William Proffitt.” (R. 491.)
The trial court then ordered petitioner examined by two
psychiatrists (R. 536) and subsequently sentenced him to
death on the basis of four “ aggravating circumstances
(R. 57-58) and a finding that the statutory “mitigating cir
cumstances” were “primarily negated” (R. 58.) The court
concluded that it found “ that aggravating circumstances
do exist, and that these aggravating circumstances far out
weigh any circumstances which would mitigate the sentence
in this case.” Ibid, (emphasis added). “ The Court finds that
the Defendant, Charles W illiam P roffitt, has been and
would continue to be a danger and a menace to society and
therefore must pay the ultimate penalty, death by electrocu
tion.” (R. 59.)
One of the “aggravating circumstances” found by the
trial court was that the murder of Joel Ronnie Medgebow
establish the existence of three mitigating circumstances: that
“ [t] he capital felony was committed while the defendant was under
the influence of extreme mental or emotional disturbance” (Fla.
Stat. Ann. §921.141(6) (b ) ) ; that “ [t] he defendant acted under
extreme duress or under the substantial domination of another
person” (Fla. Stat. Ann. §921.141(6) (e ) ) ; and that “ [t]he capac
ity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was substan
tially impaired” (Fla. Stat. Ann. §921.141(6) ( f ) ). Dr. Crumbley
testified that at the time of the interview, petitioner was seeking
“psychiatric treatment” (R. 503), that when petitioner committed
the crime, “ I am certain that this individual was under an intense
amount of uncontrollable emotional stress,” and “ couldn’t help”
doing what he did (ibid.), and that petitioner’s condition could
be treated so that he was no longer “a danger to society or to
fellow inmates” (R. 504.) Dr. Crumbley concluded, “ I ’m certain
that at the moment and at the time that this occurred this indivi
dual was overwhelmed with the force over which he had no control
and to which he must carry out the deed . . . [s]o that he was
unable to conform his conduct to the requirements of law.” (Ibid.)
56
was “especially heinous, atrocious or cruel.” (R. 57.) While,
in a very real sense, “all killings are atrocious,” Tedder v.
State, 322 So.2d 908, 910 (Fla. 1975), the slaying here (in
volving one stab wound to the heart) cannot plausibly be
said to entail “ something ‘especially’ heinous, atrocious or
cruel.” Tedder v. State, supra, 322 So.2d at 910 (footnote
omitted). It clearly did not involve acts which were “de
signed to inflict a high degree of pain with utter indiffer
ence to, or even enjoyment of, the suffering of others,”
which “ set the crime apart from the norm of capital
felonies— [a] . . . conscienceless or pitiless crime . . . un
necessarily torturous to the victim,” State v. Dixon, supra,
283 So.2d at 9. Cf. Swan v. State, 322 So.2d 485 (Fla. 1975),
discussed at page 59 infra; Halliwell v. State, 323 So.2d 557
(Fla. 1975), discussed at pages 49-50 supra.
The trial court also found as an “ aggravating circum
stance” that petitioner had a “propensity” to commit a
crime for which he was convicted and that he constituted
a “danger and a menace to society.” (R. 57.) This particu
lar “aggravating circumstance” appears nowhere in the
Florida statute, of course; it is one of the open-ended roster
of ad hoc justifications for imposing a death sentence that
Florida trial judges are free to invent. See pages 29-31
supra. Moreover, the determination that petitioner had a
“propensity” to commit murder and that he was a “menace
to society” is not supportable on the record.61 It is merely
61 While Dr. Crumbley stated that petitioner “could he a danger
in the future to society” (R. 500), this doctor— who was not a
psychiatrist— also indicated that petitioner’s condition was sus
ceptible to treatment which would make him no longer “ a danger
to society.” See note 60 supra.
A t a second sentencing hearing after the advisory jury had been
discharged, Dr. Robert H. Coffer, a psychiatrist who had been
appointed by the trial court to examine petitioner, testified that
he had given petitioner a “regular diagnostic interview” (R. 543)
which had lasted approximately fifty minutes (R. 544). Dr. Coffer
concluded that petitioner “knew the difference between right and
57
a visceral reaction verbalized as a justification for sentenc
ing petitioner to death.
The finding as an “ aggravating circumstance” that peti
tioner knowingly created a great risk of serious bodily
harm and death to many persons” (R. 206-207) is a hybrid.
The statu te contains the aggravating circumstance of
knowingly creating a great risk of “death” to many persons
(Fla. Stat. Ann. §921.141(5)(c), page 9 supra)-, and the
trial judge used his plenary power to add “ serious bodily
harm.” In any event, the finding is baseless either as a
statutory or nonstatutory aggravating circumstance. The
relevant subsection of the statute is directed at wanton and
serious endangering of the general public, as by exploding
a bomb in a public place, shooting into a crowd, or hijacking
an airplane. Indeed, in a hearing before the Select Corn-
wrong” on the day of the crime (R. 545) and had “ the capacity
. . . to appreciate the criminality of his conduct . . . [and] to
conform his conduct to the requirements of law.” (ibid.) He did
not address the question whether petitioner was a “ danger” or a
“menace” to society. On cross-examination, he stated that peti
tioner was affected by “ a personality disorder, a tendency to act
out his feelings” (R. 547) and that petitioner would not “ improve
much with treatment” (R. 549). Dr. Coffer observed that petitioner
did not indicate any desire “to repeat the kind of act which oc
curred on the 10th” or “an urge to continue killing people” (R.
550).
The second psychiatrist appointed by the trial court, Dr. Daniel
J. Sprehe, did not testify but his report indicated that petitioner
had admitted during his interview with Dr. Sprehe that he had
“a long standing compulsion to kill someone.” (R. 44.) Dr. Sprehe
concluded that petitioner had a long standing sociopathic person
ality characterized by resort to violence as a solution to his life
problems” (ibid.), but he did not address his question whether
petitioner’s personality disorder could he successfully treated.
There is, of course, extraordinary disagreement among medical
experts and social scientists concerning the extent to which it is
possible to make reliable predictions of future anti-social behavior
by a particular individual. See Brief for Petitioner, Jurek v.
Texas, No. 75-5394 at Part II. Perhaps that is why no one in this
case, except the trial judge, ventured to prediction that petitioner
would repeat the crime of murder.
58
mittee on the Death Penalty of the Florida House of Rep
resentatives, Committee Chairman Jeff D. Gautier sum
marized this provision: “ [t]he defendant knowingly cre
ated risk of death to many persons. That’s your hijacking
sections [sic].62 But even conceding the trial court’s power
to ignore the statute (see pages 29-31 supra), it surely
beggars reason and deprives language of intelligible mean
ing to find that petitioner created a great risk of death or
serious bodily harm to many people. Joel Medgebow’s killer
came into contact with one other person besides the victim
during the course of the crime, and he used a knife only
against Mr. Medgebow.
There was adequate evidence to sustain the finding of
the fourth “aggravating circumstance” listed by the trial
judge: that Mr. Medgebow’s murder was committed dur
ing the felony o f burglary. (R. 57.) But this one support
able finding hardly lends integrity to the final result, which
the statute requires to be reached by assessing the suffi
ciency of all aggravating circumstances to justify a death
sentence. Three of the four aggravating circumstances
cited by the trial judge here are, to use the apt words of
Professor Charles Black, either “caprice” or “mistake” or
both.63 64 * Moreover, there is nothing in the record to explain
why this particular felony murder is any more aggravated
than the many in which life sentences have been imposed66
62 Bearings, Select Committee on the Death Penalty, Florida
House of Representatives, at 66 (Aug. 4 ,1972).
63 Black, op. cit. supra note 35, at 18-20.
64 See, e.g., Hernandez v. State, 323 So.2d 318 (Fla App 1975) •
Wilson v. State, 306 So.2d 513 (Fla. 1975); Miller v. State, 300
So.2d 53 (Fla. App. 1974); Jefferson v. State, 298 So.2d 465 (Fla.
App. 1974); Williams v. State, 297 So.2d 67 (Fla. App. 1974) •
Dinkens v. State, 291 So.2d 122 (Fla. App. 197 4 ); capital defen
dants have also been convicted of second degree murder in felony
murder situations, see, e.g., Ballard v. State, 323 So.2d 297 (Fla
App. 1975); Gilbert v. State, 311 So.2d 385 (Fla App 1975)
59
or in which the Florida Supreme Court has vacated death
sentences. See, e.g., Swan v. State, 322 So.2d 485 (Fla.
1975); Slater v. State, 316 So.2d 539 (Fla. 1975); Thompson
v. State, Fla. Sup. Ct. No. 45,107 (Jan. 21, 1976). In Swan.
for example, the defendant and a companion burglarized a
home at night and gave the housekeeper such a “ severe
beating,” 322 So.2d at 486, that she died from “ the torture
. . . administered,” 322 So.2d at 487. The Florida Supreme
Court nevertheless held that considering “ the total record,
we are of the opinion that there were insufficient aggravat
ing circumstances to justify the imposition of the death
penalty.” 322 So.2d at 489.
# * *
Despite the mandate of Furman v. Georgia, petitioner
remains simply one of “ a capriciously selected random
handful upon whom the sentence of death has in fact been
imposed,” 66 while the same sentence o f death has been
averted from others under Florida’s 1972 statutory pro
cedures with “no meaningful basis for distinguishing” the
spared from the condemned.66 This case does not therefore
necessitate resolution of the question whether, in the words
of Chief Justice Burger’s Furman dissent, “ there is [any]
. . . reason to believe that sentencing standards in any
form will substantially alteT the discretionary character
of the [pre-Furman] . . . system of sentencing in capital
cases.” 67 See also McGautha v. California, 402 TJ.S. 183,
208 (1971); R oyal Commission on Capital P unishment
1949-1953, R eport 174 (H.M.S.O. 1953) [Cmd. 8932]. For
the Florida Supreme Court itself has described Florida’s
“ standards” and procedures in a way that makes their
incompatibility with Furman palpable: 65 66 67
65 Furman v. Georgia, supra, 408 TJ.S. at 309-310 (concurring
opinion of Mr. Justice Stewart).
66 Id. at 313 (concurring opinion of Mr. Justice W h ite).
67 Id. at 401.
60
“ [cjertain factual situations may warrant the in
fliction of capital punishment, but, nevertheless, would
not prevent either the trial jury, the trial judge, or
this Court from exercising reasoned judgment in re
ducing the sentence to life imprisonment. Such an
exercise of mercy on behalf of the defendant in one
case does not prevent the imposition of death by cap
ital punishment in the other case.”
Alvord v. State, 322 So.2d 533, 540 (Fla. 1975).
B. Before and After the Penalty Trial.
But what we have said so far is only a part of the story,
because the sentencing discretion explicitly authorized by
this 1972 statute is but one of several points at which
arbitrariness riddles the procedures determining who lives
and dies for “capital” crime in Florida. The capricious
administration of death that results from unfettered pro
secutorial charging and plea bargaining powers, from jury
sympathy or revulsion as they affect the jurors’ determina
tions of degrees and grades of offenses, and from the
executive’s prerogative of clemency has been described at
length in the Brief for Petitioner, Fowler v. North Carolina
No. 73-7031, at 41-101 [hereafter cited as Petitioner’s
Fowler Brief]. We will not burden the Court with a
recapitulation of that documentation here. Suffice it to sum
up with the Government’s apt conclusion regarding the way
in which systems of “capital” justice generally function
in this country today: “ [t]hose [capital defendants] whose
execution is not averted by one of the avenues of discre
tionary mercy or constitutional safeguard have been sent
to their death because none of a large number of actors
thought they deserved to be spared.” Brief for the United
States as Amicus Curiae, Fowler v. North Carolina, No. 73-
7031, at 75-76.
6 1
In the following subsections, we do no more than to
describe the particular Florida-law doctrines, practices and
procedures which pave the local stretches of the “avenues
of mercy” to which the Government refers. We respectfully
hope that the Court will consent to consider these sub
sections in connection with the fuller discussions found in
Petitioner’s Fowler Brief of (1) prosecutorial charging
discretion (id. at 45-53); (2) plea bargaining (id. at 53-61);
(3) jury discretion (id. at 62-95); and (4) executive
clemency (id. at 95-100). Parallel local-law sections will be
found in the Briefs for Petitioners in Roberts v. Louisiana,
No. 75-5844, and Jurek v. Texas, No. 75-5394, and in the
Brief for the N.A.A.C.P. Legal Defense and Educational
Fund, Inc., as amicus curiae in Gregg v. Georgia, No. 74-
6257.
1. Prosecutorial Charging Discretion.
In Florida, each State Attorney must “ appear in the
circuit court . . . within his judicial circuit, and prosecute
or defend on behalf of the state all suits, applications, or
motions, civil or criminal, in which the state is a party.”
Fla. Stat. Ann. §27.02.68 He possesses broad and unreview-
able authority to make charging decisions and to initiate
and terminate prosecutions.69 The State Attorney:
68 Cf. Fla. R. Crim. Proc. 3.115 (1 9 7 5 ): “ The state attorney
shall provide the personnel or procedure for criminal intake in
the judicial system.” No further guidelines are established.
69 The statutes defining the powers of the State Attorney are
to be “liberally construed.” Barnes v. State, 58 So.2d 157, 159
(Fla. 1952).
“ [T]he constitution and statutes impose a duty upon the state
attorney to prosecute in the circuit court any and all viola
tions of the criminal laws of which that court has jurisdiction
either upon his own information or upon indictment by the
grand jury. I f any indictment has not been found or any in
formation filed for such offenBe, then all indictable offenses
62
“ [h]as been loosely referred to many times as a ‘one-
man grand jury’. And he is truly that. He is the
investigatory and accusatory arm of our judicial
system of government, subject only to the limitations
imposed by the Constitution, the common law, and the
statutes, for the protection of individual rights and
to safeguard against the possible abuses of the far
reaching powers so confided.”
Imparator v. Spicola, 238 So.2d 503, 506 (Fla. App. 1970).
“ [WJithin the limits of the constitution and applicable
statutes all steps in the prosecution of persons sus
pected of crime are under . . . [the state attorney’s]
supervision and control.”
Collier v. Baker, 155 Fla. 425, 20 So.2d 652, 653 (1945).* 70
Although the Florida legislature could, pursuant to its
authority to prescribe the “powers and duties” of the state
attorney, Owens v. State, 61 So.2d 412, 414 (Fla. 1952); see
also Johns v. State, 144 Fla. 256, 197 So. 791 (1940),
enact guidelines to specify when a capital indictment should
be sought, it has not done so. Consequently, the prosecu
tor’s power to seek or to forego capital indictments remains
broadly discretionary:
“ [w]here . . . [a state attorney’s] duty and authority
require the examination of evidence in the determina
triable within the county should be presented to the grand
jury by the state attorney.”
State v. Mitchell, 188 So.2d 684, 687 (Fla. A p p .), cert, dis
charged, 192 So.2d 281 (Fla. 1966). See also Smith v. State, 95
So.2d 525, 527 (Fla. 1957). Cf. Newton v. State, 178 So.2d 341,
344 (Fla. 1965).
70 All capital prosecutions in Florida must be initiated by in
dictment. Fla. Const., art. 1, §15, Fla. Stat. Ann. (1 970); Fla. R.
Crim. Proce. 3 .140(a )(1) (1975). Any grand jury, of course, has
absolute discretion to indict or not to indict regardless of the evi
dence presented to it.
63
tion of law and fact before taking action thereon, his
duty and authority is ordinarily not strictly ministerial,
but may even be quasi-judicial or discretionary in its
character.” 71
Hall v. State, 136 Fla. 644, 187 So. 392, 398 (1939).
The state attorney can terminate a criminal action when
ever he determines “ that the prosecution is not justified.”
Barnes v. State, 58 So.2d 157,159 (Fla. 1951). See generally
Wilson v. Renfree, 91 So.2d 857, 859-860 (Fla. 1956).
“ [T]he State has a right to take a nolle prosequi at any
time prior to the jury being sworn,” State v. Sokol, 208
So.2d 156 (Fla. App. 1968), without consent of the trial
court.72 When a state attorney retracts an indictment or
information without the formal entry of a nolle prosequi,
the charge may be refiled without securing judicial ap
proval.73 State v. Wells, 277 So.2d 543, 544 (Fla. App.
1973); State v. Fattorusso, 228 So.2d 630, 633 (Fla. App.
1969); Wilk v. State, 217 So.2d 610, 612 (Fla. App. 1969).
Under the state attorney’s authority to “ contract with a
criminal for his exemption from prosecution,” Ingram v.
Prescott, 111 Fla. 320, 149 So. 369 (1933), he may file
capital charges against one co-defendant but not against
another equally culpable co-defendant. And the state at
<( 71 Cf. Carlile v. State, 129 Fla. 860, 176 So. 862, 863 (1 9 3 7 ):
“ The state attorney has a very broad discretion in examining
witnesses . . . prior to indictment.”
72 I f such consent is not obtained and if the nolle prosequi is
not made part of a formal judgment, the state attorney is not pre
vented from prosecuting a party in violation of the nolle prosequi
agreement, however. Ingram v. Prescott, 111 Fla. 320, 149 So.
369, 370 (1933) (dictum).
73 Florida Rule of Criminal Procedure 3.191 (1975), setting
forth certain provisions to assure criminal defendants a speedy
trial, may limit the period in which an action can be refiled by
the state attorney.
64
torney can seek a conviction for any lesser degree of a
capital offense, Fla. R. Crim. Proc. 3.140(k)(6) (1975), or
for “any lesser offense, which, although not an essential
ingredient of the major crime, is spelled out in the accusa
tory pleading in that it alleges all of the elements of the
lesser offense,” State v. Anderson, 270 So.2d 353, 356 (Fla.
1972).
2. Plea Bargaining.
Furthermore, the state attorney’s discretion to plea
bargain is utterly unfettered by the 1972 capital punish
ment statute or by any other significant restrictions.
Florida Rule of Criminal Procedure 3.170(g) (1975) ex
plicitly authorizes plea bargaining:
“ [t]he defendant, with the consent of the court and of
the prosecuting attorney, may plead guilty to any
lesser offense than that charged which is included in
the offense charged in the indictment or information or
to any lesser degree of the offense charged.”
Rule 3.171(a) (1975) provides that “ [t]he Prosecuting At
torney is encouraged to discuss and agree on pleas which
may be entered by a defendant.” Where plea bargaining
precedes the filing of the charging paper, even the discre
tionary power of the trial court to supervise negotiated dis
positions can be avoided. For in Florida, defendants have
a legal right to plead guilty to a criminal charge, Canada v.
State, 144 Fla. 633,198 So. 220, 223 (1940); Eckles v. State,
132 Fla. 526, 180 So. 764, 766 (1938); and a trial court’s
power to reject a guilty plea is limited to those cases where
the plea is “ not ‘entirely voluntary by one competent to
know the consequence,’ or is ‘induced by fear, misapprehen
sion, persuasion, promises, inadvertence, or ignorance.’ ”
Reyes v. Kelly, 224 So.2d 303, 305 (Fla. 1969).
65
“ [A trial court] . . . is not authorize[d] . . . to arbitrarily
refuse to accept an unqualified plea of guilty made by
a defendant in a non-capital case for any other reason.
“ There is no more reason to allow such action by a trial
judge than there is to allow a defendant to withdraw
such a plea at his pleasure. If a trial judge has the
discretion to refuse only for cause permission to with
draw a plea of guilty, he should not be allowed, without
cause, to reject such a plea. The right to enter such a
guilty plea to a noncapital offense should be no less
sacred than the right to enter a plea of not guilty.”
224 So.2d at 306. See Fla. R. Crim. Proc. 3.160(c) (1975).
Plea bargaining is frequent in capital cases, and the
Florida Supreme Court has stated that when a defendant
“plead[s] guilty in order to escape the electric chair,” he
gets “what he bargained for—a life sentence and . . . no
right to complain.” Lewis v. State, 93 So.2d 46, 47 (Fla.
1956). Without guidance or restriction—subject only to
defendants’ willingness to negotiate— a state attorney is
free to make the decision whether a capital charge will be
pursued or bargained out. No procedures exist to restrain
the employment by different state attorneys of differing
standards for the acceptance of less-than-capital guilty
pleas, or to monitor or correct the inconsistent or capri
ciously applied policy of an individual state attorney.
3. Jury Discretion.
Although express sentencing discretion is conferred upon
the capital trial judge by Fla. Stat. Ann. §921.141 (1975-
1976 supp.), see pages 21-60 supra, the jury also has un
fettered power to spare a capital defendant’s life by con
victing him of a less-than-capital offense. Petitioner’s jury,
for example, was charged that it might convict him of
66
first degree murder (R. 473), second degree murder (R.
476), third degree murder (R. 478), or manslaughter (ibid.).
Although these respective crimes are defined in terms
of elements that are theoretically distinct and mutually
exclusive, the imprecision of the definitions allows a jury
wide latitude to shape its guilty verdict so as to avoid or
permit the imposition of a death penalty at the sentencing
stage. (Such action is made more likely when, as here
(R. 105-109, 110-114, 175-176), the jurors are informed on
voir dire that a death penalty may be the result of a verdict
of guilty of first degree murder.) For example, a “pre
meditated design” to take life “ is the ever-present distin
guishing factor,” Anderson v. State, 276 So.2d 17, 18 (Fla.
1973) (emphasis in original), of first degree murder:
“ [a] premeditated design to effect the death of a human
being is a fully formulated and conscious purpose to
take human life, formed upon reflection and delibera
tion, entertained in the mind before and at the time of
the homicide. The law does not prescribe the precise
period of time which must elapse between the forma
tion of and the execution of the intent to take human
life in order to render the design a premeditated one;
it may exist only a few moments and yet be premedi
tated. I f the design to take human life was formed a
sufficient length of time before its execution to admit of
some reflection and deliberation on the part of the party
entertaining it, and the party at the time of the execu
tion of the intent wms fully conscious of a settled and
fixed purpose to take the life of a human being, and
of the consequences of carrying such a purpose into
execution, the intent or design would be premeditated
within the meaning of the law although the execution
followed closely upon formulation of the intent.”
67
McCutchen v. State, 96 So.2d 152,153 (Fla. 1957). See also
Purkhiser v. State, 210 So.2d 448, 449 (Fla. 1968); Mackie-
wicz v. State, 114 So.2d 684, 691 (Fla. 1959). Although “ the
term ‘premeditated design’ is not a term of art,” Polk v.
State, 179 So.2d 236, 237 (Fla. App. 1965), and although
“ ‘ [n]o door should be left open for confusion as to what
it means,’ ” Anderson v. State, supra, 276 So.2d at 18, the
application of the term in any case involves the drawing
of exceedingly fine lines which are sufficiently mobile to re
flect the jury’s consciousness and concern about the possible
death-sentencing consequence of drawing the line here or
there. For a “premeditated design” is not simply an intent
to kill, Anderson v. State, supra, 276 So.2d at 18; Cook v.
State, 46 Fla. 20, 35 So. 665, 669 (1903), but is rather the
formation of an “ intent before the act.” Forehand, v. State,
126 Fla. 464, 171 So. 241, 242 (1936). The perpetrator must
have “ ‘sufficient time . . . fully to frame and to design to
kill, and to select the instrument, or to frame the plan to
carry this design into execution. . . .’ ” Lowe v. State, 90
Fla. 255, 105 So. 829, 831 (1925). There must be time “ for
some reflection or deliberation upon the matter, for choice
to kill or not to kill, resulting in the formation of a deliber
ate purpose to kill.” Hasty v. State, 120 Fla. 269, 162 So.
910, 912 (1935). But this elaborate reflective process may
be performed—if the jury chooses to so find—in the space
of an instant, for “ [t]he human mind acts with celerity
which it is sometimes impossible to measure.” Cook v.
State, supra, 35 So. at 672. Accordingly, no particular time
is necessarily involved: “ [a] moment before the act is
sufficient.” O’Bryan v. State, 300 So.2d 323, 325 (Fla. App.
1974); Hernandez v. State, 273 So.2d 130, 133 (Fla. App.
1973).
“ ‘It is not essential * * * in order to show prima facie
premeditation * * * on the part of a prisoner’ that there
68
should be evidence o f ‘preconceived purpose to kill,
formed at a time anterior to the meeting when it was
carried into execution.’ It is sufficient if the prisoner
deliberately determined to kill before inflicting the
mortal wound. If there were such purpose deliberately
formed, the interval, if only a moment before its exe
cution, is immaterial.”
Lowe v. State, supra, 105 So. at 831.
Since “all psychological investigation shows that the
process of mental conception lies beyond the scrutiny of
exact observation,” ibid., premeditated design must fre
quently be proven by circumstantial evidence.
“Premeditation may be inferred from evidence as to
the nature of the weapon used, the manner in which
the murder was committed and the nature and manner
o f the wounds inflicted.”
Hernandez v. State, 273 So.2d 130, 133 (Fla. App. 1973).
See also Larry v. State, 104 So.2d 352, 354 (Fla. 1958);
Rhodes v. State, 104 Fla. 520, 140 So. 309, 310 (1932). It
may also be inferred:
“ from such circumstances as declarations of intent to
kill before or after the crime, previous difficulty be
tween the parties, absence of adequate provocation,
remarks and conduct indicating preparation, lying in
wait, character of the weapon employed, the nature
and number of the blows or wounds inflicted, locality of
the wounds, place of the crime, and subsequent acts or
statements.”
Lowe v. State, supra, 105 So. at 832. Or it may not be
inferred from these same facts.
69
For second degree murder (but not for manslaughter)74
the State must establish that a defendant acted with a
“depraved mind regardless of human life” :
“ [d]epravity of mind is an inherent deficiency of moral
sense and rectitude . . . . It is the equivalent of the
statutory phrase ‘depravity of heart’ which has been
defined to be the highest grade of malice . . . .
“ It is obvious . . . that the phrase ‘evincing a depraved
mind regardless of human life,’ as used in the statute
. . . denouncing murder in the second degree, was not
used in the legal or technical sense of the word ‘malice’
in the popular or commonly understood sense of ill will,
hatred, spite, and evil intent. It is the malice of the
evil motive which the statute makes an ingredient of
the crime of murder in the second degree.”
Ramsey v. State, 114 Fla. 766, 154 So. 855, 856 (1934).75 76
See also Huntly v. State, 66 So.2d 504, 507 (Fla. 1953);
74 The crime of third degree murder in Florida is not, in terms
of its elements, an intermediate offense between manslaughter and
second degree murder. Third degree murder is instead a felony
murder committed “without any design to effect death” in which
the predicate felony is not arson, rape, robbery, burglary, kid
napping, aircraft piracy, or “the unlawful throwing, placing, or
discharging of a destructive device or bomb.” Fla. Stat. Ann.
§782.04(3) (1975-1976 supp.). See Johnson v. State, 91 So.2d 185,
187 (Fla. 1956); Grimes v. State, 64 So.2d 920, 921 (Fla. 1953);
Tilman v. State, 81 Fla. 558, 88 So. 377, 378 (1921).
76 So, the Ramsey opinion continues, H id .:
“ [hjowever severe the criticism may be of the conduct of the
accused in killing young Ellis, it cannot he justly said that
it proceeded from an evil motive, from ill will, hatred or spite.
It may have sprung from a flame of hottest indignation, out
raged decency, humiliating insult, produced by a drunken
vulgarian’s obscene conduct toward the daughter of his host,
but emotions of that kind cannot properly be said to be the
product of an evil mind, a vicious, corrupt, base, perverse,
malicious motive which may be said to characterize a ‘de
praved mind regardless of human life.’ ”
70
Luke v. State, 204 So.2d 359, 362 (Fla. App. 1967); Darty
v. State, 161 So.2d 864, 873 (Fla. App. 1964); Smith v.
State, 282 So.2d 179, 189 (Fla. App. 1973); Bega v. State,
100 So.2d 455, 457 (Fla. App. 1958).
Every defendant charged with first degree murder has
a right to have his jury instructed of its power to convict
him alternatively of second degree murder, third degree
murder or manslaughter:76
“ [i]f the indictment or information charges an offense
which is divided into degrees, without specifying the
degree, the jurors may find the defendant guilty of
any degree of the offense charged; if the indictment or
information charges a particular degree the jurors may
find the defendant guilty of the degree charged or of
any lesser degree. The court shall in all such cases
charge the jury as to the degrees of the offense.”
Fla. E. Crim. Proc. 3.490 (1975).76 77 In Pait v. State, 112
So.2d 380, 386 (Fla. 1959) the Florida Supreme Court
declared: “where first degree murder is charged it is re
quired that the trial judge instruct the jury as to all
degrees of unlawful homicide.” 78 A trial court’s refusal
to grant a lesser-degree instruction is reversible error.
76 In Florida, manslaughter is a lesser “ degree” of first degree
murder. See Killen v. State, 92 So.2d 825, 826-827 (Fla. 1957),
quoted n. 79 infra.
77 This rule became effective on February 1, 1973; its predeces
sor was the identically worded Fla. Stat. Ann. §919.14 (1969).
78 The right to lesser-degree instructions may be waived, how
ever. Clements v. State, 284 So.2d 700 (Fla. 1974) (affirming con
viction for first degree murder where the jury had only been in
structed on first degree murder; for “trial strategy reasons,” 284
So.2d at 701, defense counsel had requested only the first degree
murder charge).
71
Little v. State, 206 So.2d 9, 10 (Fla. 1968); Bailey v. State,
224 So.2d 296, 299 (Fla. 1969).
Instructions on the lesser included offenses may not be
refused by the trial court on the ground that there is no
evidence to support them; and a conviction for a lesser
offense will be affirmed on appeal despite its lack of evi
dentiary support.
“ This Court is now definitely committed to the rule that
wherever evidence is sufficient to sustain a charge of
murder in the first degree, whether committed in the
perpetration of certain felonies or whether from a
specific premeditated design [,] a verdict convicting a
defendant of a lesser degree of homicide will not be
disturbed even though there is no evidence of the
particular degree of the offense for which he might be
convicted. We have taken the view that the responsi
bility of determining the degree of guilt in such cases
rests peculiarly within the bosom of the trial jury . . . .
[T]he Court should in all cases instruct the jury on the
various degrees of the offense charged in the indict
ment. When the offense charged is first degree murder,
whether grounded on specifically alleged premeditated
design, or whether committed in the perpetration of
certain felonies . . . the defendant is entitled to have
the jury advised on all the degrees of unlawful homi
cide, including manslaughter. There should be a fur
ther instruction that it is in the province of the jury
to determine the degree.”
Brown v. State, 124 So.2d 481, 483 (Fla. I960).79 The theory
upon which convictions of lesser offenses unsupported by
79 See also Killen v. State, 92 So.2d 825, 826-827 (Fla. 19 5 7 ):
“ [a]ppellant contends that manslaughter is not a lesser degree
of homicide included in the charge of murder in the first
degree when the murder is committed in the perperation of,
72
and inconsistent with the evidence are affirmed appears to
be that a defendant will not be heard to complain if the
jury convicts him of a less severe offense than the crime
which is proved. This “ jury pardon” is clearly a recognized
mechanism for the discretionary dispensation of mercy by
the jury:
“ [u]nder our system of jurisprudence, the jury had the
right to convict defendant of any lesser degree of the
crime charged, and it made no difference whether the
elements of this degree of the crime were included in
the specific allegations of the indictment or information.
Such a verdict convicting a defendant of a lesser
degree even in the absence of proof is sometimes
or the attempt to perpetrate, a robbery, and that he should
have been found guilty of murder in the first degree or ac
quitted. W e do not consider such to be the law of this State,
as this Court consistently has held that where the evidence
is sufiScient to sustain a charge of murder in the first degree,
a verdict convicting a defendant of a lesser degree of unlaw
ful homicide must stand, even though there is no evidence of
the particular degree of the offense of which he is convicted.
Kiner v. State, 128 Fla. 848, 176 So. 38 ; Ammons v. State,
88 Fla. 444, 102 So. 642; Larmon v. State, 81 Fla. 553, 88 So.
471; Williams v. State, 73 Fla. 1198, 75 So. 785; Johnson v.
State, 55 Fla. 41, 46 So. 174; Clemmons v. State, 43 Fla. 200,
30 So. 699; Morrison v. State, 42 Fla. 149, 28 So. 97; Mobley
v. State, 41 Fla. 621, 26 So. 732; McCoy v. State, 40 Fla.
494, 24 So. 485; Brown v. State, 31 Fla. 207, 12 So. 640.”
Affirming a judgment finding appellant guilty of third degree
murder, the Florida Supreme Court rejected appellant’s conten
tion that the evidence showed that he was either guilty of first
degree murder or not guilty of any crime:
“the evidence . . . is ample to have sustained a verdict finding
the defendant guilty of a higher degree of murder. Therefore,
even if in terms it does not make out a case of murder in the
third degree, that furnishes no ground for the granting of a
new trial.”
Johnson v. State, 55 Fla. 41, 46 So. 174, 176 (1908).
73
referred to as a ‘jury pardon’ of the highest degree
of crime.
Bailey v. State, 224 So.2d 296, 297 (Fla. 1968).80
4. Executive Clemency.
The Governor, with the “approval of three members of
the cabinet” may by executive order commute a death
sentence to a sentence of life imprisonment.81 Although
Florida Governors must report their grants of clemency to
the legislature,82 there are no standards whatsoever for
the exercise of the commutation power. The reduction of a
legally authorized sentence is committed to the unfettered
discretion of the executive branch. Davis v. State, 123
So.2d 703, 711 (Fla. 1960), LaBarbera v. State, 63 So.2d
654, 655 (Fla. 1953); Johnson v. State, 61 So.2d 179 (Fla.
80 Other discretionary jury decisions may also spare the life of a
capital offender. In a first degree murder case, the jury may be
instructed on lesser-included-offenses in addition to second degree
murder, third degree murder, and manslaughter, depending on
the accusatory pleading and the evidence at trial. See generally,
Gilford v. State, 313 So.2d 729 (Fla. 1975) (“ the probata must
conform to the allegata. The one exception to this is . . . those
instances where the offense is divided into degrees, without specify
ing the degrees, and in that instance the trial judge is mandated
[by Fla. R. Crim. Proc. 3.490 (1975)] to instruct on such lesser
degrees of a single offense.” 313 So.2d at 732-733 (emphasis in
original)). A jury may convict of a non-capital attempt, Fla. R.
Crim. Proc. 3.510 (1974-1975 su p p .); it may recognize an amor
phously defined defense such as insanity, see, e.g., Davis v. State,
44 Fla. 32, 32 So. 822 (1 9 0 2 ); Perry v. State, 143 So.2d 528 (Fla.
App. 1962), or self-defense, see, e.g., Linsley v. State, 88 Fla. 135,
101 So. 273 (1924), or mitigation such as intoxication, see, e.g.,
Gardner v. State, 28 Fla. 113, 9 So. 835 (1891) ; it may find that
a homicide is justifiable, see Fla. Stat. Ann. §§776.012, 776.021,
776.031 (1975-1976 su p p .); or excusable, see Fla. Stat. Ann. §782.03
(1 9 6 5 ); or it may simply refuse to convict in spite of the evidence
— a recognized phenomenon when the death penalty is involved,
see Petitioner’s Fowler Brief, at pp. 90-92, n.133.
81 Fla. Const., art. 4, §8(a) (1968 rev.).
82 Fla. Stat. Ann. §940.01(3) (1973).
74
1952); Sawyer v. State, 148 Fla. 542, 4 So.2d 713 (1941);
Chavigny v. State, 112 So.2d 910, 915 (Fla. App. 1959).
The power of the Governor to commute a death sentence
has been likened to the power of a pre-Furman jury to
make a recommendation of mercy in any capital case:
“ [t]he matter of reducing the penalty in convictions
for murder in the first degree is within the province of
the trial jury, in the first instance, and the power of
commutation from the extreme penalty to imprison
ment for life lies with the authority designated in
the Constitution. Article 4 [defining powers of the
Governor] . . . .”
Baker v. State, 137 Fla. 27, 188 So. 634 (1939). The execu
tive has “ broad and wide discretion in . . . commuting
punishments,” Ex parte White, 161 Fla. 85,178 So. 876, 880
(1938)— so much so that the Florida Supreme Court has
declared unconstitutional a statute which required the
Governor and his cabinet (who constituted the Board of
Pardons under the 1885 Constitution) to afford clemency
any time the Court affirmed a death sentence by an equally
divided court. Ibid*3
• # *
All together, Florida law from indictment to electrocu
tion is “honey-combed with discretion” 84 that not merely
permits but inevitably entails an arbitrary infliction of the
harshest punishment known—or partly known—to man. * 39
83 The only study dealing with the actual exercise of the com
mutation power in Florida of which we are aware discloses that,
between 1960 and 1962, nine death sentences were executed while
on xt v t t 6 ? ™ uted- Note,Executive Clemency in Capital Cases,
39 N .Y.U. L. Rev. 136, 191 (1964).
White, The Role of the Social Sciences in Determining the
Constitutionality of Capital Punishment, 45 A m J Orthopsy
chiatry 581, 587 (1975). urthopsy
75
“ [T]he decisions on charging, on acceptance of guilty
plea, on determination of the offense for which con
viction is warranted, on sentencing, and on executive
clemency add up to a process containing too much
chance for mistake and too much standardless ‘discre
tion’ for it to be decent for us to use it any longer as a
means of choosing for death. . . .
“ Suppose all the mistake-proneness and standard-
lessness . . . were concentrated in the decision of one
man. We would regard that as so evidently intolerable
as to be undiscussable. But it might be better than
what we have, for responsibility would at least be
fixed. All our system does is to diffuse this same re
sponsibility nearly to the point of its elimination, so
that each participant in this long process, though per
haps knowing his own conclusions to be uncertain and
inadequately based on lawful standards, can comfort
himself with the thought, altogether false and vain,
that the lack has been made up, or will be made up,
somewhere else.” 85
There is nowhere else. “ The law itself must save the
parties’ rights and not leave them to the discretion of the
courts as such.” Louisville & Nashville Ry. Co. v. Central
Stock Yards Co., 212 U.S. 132, 144 (1909). Nor yet to the
discretion of prosecutors, jurors, two tiers of judges, and
the governor. This, at the very least, Furman must hold.
85 Black, op cit. supra note 35, at 92-93.
76
m.
The Excessive Cruelty of Death.
The submissions made in Part III of Petitioner’s Fowler
Brief, at pp. 102-140, and in Part III of the Brief for
Petitioner, Jurek v. Texas, No. 75-5394, are fully applicable
to death sentences inflicted under Florida law. Amicus
respectfully urges their consideration by the Court.
CONCLUSION
The penalty of death imposed upon petitioner Charles
William ProfBtt is a cruel and unusual punishment for
bidden by the Eighth and Fourteenth Amendments. The
judgment of the Supreme Court of Florida should there
fore be reversed insofar as it aflSrms his death sentence.
Respectfully submitted,
J ack Greenberg
J ames M. Nabrit, III
D avid E. K endall
P eggy C. Davis
10 Columbus Circle, Suite 2030
New York, New York 10019
A nthony G. A msterdam
Stanford University Law School
Stanford, California 94305
Attorneys for the N.A.A.C.P. Legal
Defense and Educational Fund, Inc.
A P P E N D I X
APPENDIX A
The following persons have been sentenced to death
under Florida’s 1972 capital punishment legislation; the
race of each defendant appears in parenthesis.
1. Eligaah Ardalle Jacobs (white), sentenced to death for
first degree murder, two counts, February 13, 1976,
Pasco County Cir. Ct., No. 74-1408 (jury recom
mended death).
2. John A. Kampff (white), sentenced to death for first
degree murder, January 23, 1976, St. Lucie County
Cir. Ct., No. 75-338-CF-A (jury recommended death)
appeal pending [no Fla. Sup. Ct. number assigned
yet].
3. Richard Henry Gibson (black), sentenced to death for
first degree murder, January 6, 1976, Duval County
Cir. Ct., No. 75-227-CF-R (jury recommended death)
appeal pending, Fla. Sup. Ct. No. 48,698.
4. Jesse Ray Rutledge (black), sentenced to death for first
degree murder, December 31, 1975, Alachua County
Cir. Ct., No. 75-457-CF (jury recommended death)
appeal pending, Fla. Sup. Ct. No. 48,801.
5. Michael Salvatore (white), sentenced to death for first
degree murder, December 2, 1975, Dade County Cir.
Ct., No. 75-2161-B (jury recommended death) ap
peal pending [no Fla. Sup. Ct. No. assigned yet].
6. Monroe Holmes (black), sentenced to death for first
degree murder, November 7, 1975, Palm Beach
la
2a
County Cir. Ct., No. 74-1035-CF (waived sentencing
jury) appeal pending, Fla. Sup. Ct. No. 48,392.
7. Glen Martin (black), sentenced to death for first de
gree murder, October 10, 1975, Volusia County Cir.
Ct., No. 75-535 (jury recommended death) appeal
pending, Fla. Sup. Ct., No. 48,464.
8. Charles K. Foster (white), sentenced to death for first
degree murder, October 4, 1975, Bay County Cir. Ct.,
No. 75-486 (jury recommended death) appeal pend
ing, Fla. Sup. Ct., No. 48,380.
9. Raymond Stone (white), sentenced to death for first
degree murder, October 1, 1975, Union County Cir.
Ct., No. 74-71 (jury recommended death) appeal
pending, Fla. Sup. Ct., No. 48,275.
10. Sampson A. Armstrong (black), sentenced to death for
first degree murder, September 30, 1975, Hardee
County Cir. Ct., No. 75-110 (jury recommended
death) appeal pending, Fla. Sup. Ct. No. 48,516.
11. Earl Enmond (black), sentenced to death for first de
gree murder, September 30, 1975, Hardee County
Cir. Ct., Nos. 75-122 and 75-123, (jury recommended
death) appeal pending, Fla. Sup. Ct., No. 48,525.
12. Carl Jackson (black), sentenced to death for first de
gree murder, September 12, 1975, Bay County Cir.
Ct., No. 75-258 (jury recommended death) appeal
pending, Fla. Sup. Ct., No. 48,165.
13. Danny Gaff or d (white), sentenced to death for first
degree murder, September 7, 1975, Bay County Cir.
Appendix A
3a
Ct., No. 75-410 (jury recommended death) appeal
pending, Fla. Sup. Ct., No. 48,421.
14. James David Raulerson (white), sentenced to death
for first degree murder, August 29, 1975, Duval
County Cir. Ct., No. 75-1325-CF-P (jury recom
mended death) appeal pending, Fla. Sup. Ct., No.
47,991.
15. Franz Peter Buckrem (white), sentenced to death for
first degree murder, August 15, 1975, Sarasota
County Cir. Ct., No. 75-284-CF-A (jury recom
mended mercy) appeal pending, Fla. Sup. Ct., No.
48,029.
16. Henry Brown (black), sentenced to death for first de
gree murder, August 1, 1975, Dade County Cir. Ct.,
No. 73-6666-B (jury recommended mercy) appeal
pending, Fla. Sup. Ct., No. 48,229.
17. John W. LeDuce (white), sentenced to death for first
degree murder, July 28, 1975, Okaloosa County Cir.
Ct., No. 75-53 (jury recommended death) appeal
pending, Fla. Sup. Ct., No. 47,953.
18. David Livingston Funchess (black), sentenced to death
for first degree murder, July 18, 1975, Duval County
Cir. Ct. No. 75-169-CF-R (jury recommended death)
appeal pending, Fla. Sup. Ct., No. 47,828.
19. Lenson Hargrave (white), sentenced to death for first
degree murder, July 18, 1975, Dade County Cir. Ct.,
No. 75-118-A (jury recommended death) appeal pend
ing, Fla. Sup. Ct., No. 48,135.
Appendix A
4a
20. Glen Chambers (white), sentenced to death for first
degree murder, July 11, 1975, Sarasota County Cir.,
Ct., No. 75-95-CF-A (jury recommended mercy) ap
peal pending, Fla. Sup. Ct., No. 47,888.
21. Benjamin F. Huckaby (white), sentenced to death for
first degree murder, June 26, 1975, Volusia County
Cir. Ct., No. 74-883-B (jury recommended death)
appeal pending, Fla. Sup. Ct., No. 47,736.
22. Rudolph Valentine Lee (hlack), sentenced to death
for first degree murder, June 12, 1975, Duval County
Cir. Ct., No. 72-10 (jury recommended death) appeal
pending, Fla. Sup. Ct., No. 47,690.
23. Leslie R. Jones (black), sentenced to death for first
degree murder, May 15, 1975, Escambia County Cir.
Ct., No. 74-1810 (jury recommended mercy) appeal
pending, Fla. Sup. Ct., No. 47,472.
24. Thomas Knight (black), sentenced to death for first
degree murder, April 21, 1975, Dade County Cir.
Ct., No. 74-5978 (jury recommended death) appeal
pending, Fla. Sup. Ct., No. 47,599.
25. Edward Clark Barclay (black), sentenced to death for
first degree murder, April 10, 1975, Duval County
Cir. Ct., No. 74-4139-CF (jury recommended death)
appeal pending, Fla. Sup. Ct., No. 47,260.
26. Jacob John Dougan (black), sentenced to death for
first degree murder, April 10, 1975, Duval County
Cir. Ct., No. 74-4139-CF (jury recommended death)
appeal pending, Fla. Sup. Ct., No. 47,260.
Appendix A
5a
27. William Duane Elledge (white), sentenced to death
for first degree murder, March 27, 1975, Broward
County Cir. Ct., No. 75-0087-CF (jury recommended
death) appeal pending, Fla. Sup. Ct., No. 48,081.
28. Delbert Tibbs (black), sentenced to death for first de
gree murder, March 24, 1975, Lee County Cir. Ct.,
No. 74-254-CF (jury recommended death) appeal
pending, Fla. Sup. Ct., No. 47,258.
29. Douglas Meeks (black), sentenced to death for first
degree murder, March 12, 1975, Taylor County Cir.
Ct., No. 74-2990-CF (jury recommended death) ap
peal pending, Fla. Sup. Ct., No. 47,533; sentenced
to death for first degree murder, June 4,1975, Taylor
County Cir. Ct., No. 74-300-CF (jury recommended
death) appeal pending, Fla. Sup. Ct., No. 47,533.
30. William L. Harvard (white), sentenced to death for
first degree murder, March 6, 1975, Brevard County
Cir. Ct., No. 74-713-CF-A (jury recommended death)
appeal pending, Fla. Sup. Ct., No. 47,052.
31. Clarence R. Purdy (white), sentenced to death for rape,
February 12, 1975, Lake County Cir. Ct., No. 74-561
(jury recommended death) appeal pending, Fla. Sup.
Ct., No. 47,074.
32. Levis Leon Aldrich (white), sentenced to death for
first degree murder, January 8, 1975, St. Lucie
County Cir. Ct., No. 74-335-CF-A (jury recommended
death) appeal pending, Fla. Sup. Ct., No. 46,958.
Appendix A
6a
33. Alvin Bernard Ford (black), sentenced to death for
first degree murder, January 6, 1975, Broward
County Cir. Ct., No. 74-2159-CF-A (jury recom
mended death) appeal pending, Fla. Sup. Ct., No.
47,059.
34. Charles Messer (white), sentenced to death for first
degree murder, January 3, 1975, Santa Rosa County
Cir. Ct., No. 74-1-21 (jury recommended death) ap
peal pending, Fla. Sup. Ct., No. 46,849.
35. Ronald Jackson (black), sentenced to death for first
degree murder, December 23, 1974, Dade County
Cir. Ct., No. 74-6666-B (jury recommended death)
appeal pending, Fla. Sup. Ct., No. 48,229.
36. Clyde Foster (black), sentenced to death for first de
gree murder, December 14, 1974, Columbia County
Cir. Ct., No. 74-248-CF (jury recommended death).
37. George Thomas Vasil (white), sentenced to death for
first degree murder, December 12, 1974, St. Lucie
County Cir. Ct., No. 74-336-CF-A (jury recommended
death) appeal pending, Fla. Sup. Ct., No. 46,654.
38. Walter Albert Carnes (black), sentenced to death for
first degree murder, November 19, 1974, Escambia
County Cir. Ct., No. 74-2131-CF (jury recommended
mercy) conviction aff’d., death sentence vacated, Fla.
Sup. Ct., No. 46,673.
39. Michael Edward Provence (white), sentenced to death
for first degree murder, October 31, 1974, Manatee
County Cir. Ct., No. 73-4195 (jury recommended
mercy) appeal pending, Fla. Sup. Ct., No. 46,671.
Appendix A
7a
40. James Calvin Agan (white), sentenced to death for first
degree murder, September 27, 1974, Hillsborough
County Cir. Ct., No. 74-1687, Div. A. (waived sen
tencing jury) appeal pending, Fla. Sup. Ct., No.
48,052.
41. Mac Reed Tedder 11 (black), sentenced to death for
first degree murder, July 26, 1974, Hernando County
Cir. Ct., No. 74-26 (jury recommended mercy) aff’d,
322 So.2d 908 (Fla. 1975).
42. Joseph G. Brown (black), sentenced to death for first
degree murder, July 3, 1974, Hillsborough County
Cir. Ct., No. 73-2180-C (jury recommended death)
appeal pending, Fla. Sup. Ct., No. 46,925.
43. Vernon R. Cooper (white), sentenced to death for
first degree murder, July 1, 1974, Escambia County
Cir. Ct., No. 74-185 (jury recommended death) ap
peal pending, Fla. Sup. Ct., No. 45,966.
44. James Dupree Henry (black), sentenced to death for
first degree murder, June 26, 1974, Orange County
Cir. Ct., No. 74-953 (jury recommended death) ap
peal pending, Fla. Sup. Ct., No. 46,105.
45. James Curtis McCrae (black), sentenced to death for
first degree murder, May 21, 1974, Lee County Cir.
Ct., No. 73-636-CF (jury recommended mercy) ap
peal pending, Fla. Sup. Ct., No. 45,894.
46. Thomas A. Halliwell (white), sentenced to death for
first degree murder, May 10, 1974, Hillsborough
County Cir. Ct., No. 74-286 (jury recommended
Appendix A
8a
death) aff’d., Fla. Sup. Ct., No. 45,885 (December 3,
1975).
47. Ernest John Dobbert (white), sentenced to death for
first degree murder, April 12, 1974, Duval County
Cir. Ct., No. 73-5068-5 (jury recommended mercy)
aff’d., Fla. Sup. Ct., No. 45,558 January 14, 1976.
48. Gary Eldon Alvord (white), sentenced to death for
first degree murder, April 9, 1974, Hillsborough
County Cir. Ct., No. 73-13986 (jury recommended
death) aff’d., 322 So. 2d 533 (Fla. 1975).
49. Darius Slater (black), sentenced to death for first
degree murder, April 4, 1974, Orange County Cir.
Ct., No. 73-2065 (jury recommended mercy) con
viction aff’d., death sentence vacated, 316 So.2d 539
(Fla. 1975).
50. Jon Steven Miller (white), sentenced to death for first
degree murder, April 1, 1974, Lee County Cir. Ct.,
No. 72-251-F (jury recommended death) appeal pend
ing, Fla. Sup. Ct., No. 45,689.
51. Jackson B. Burch (black), sentenced to death for first
degree murder, March 29, 1974, Palm Beach County
Cir. Ct., No. 73-885 (jury recommended mercy) ap
peal pending, Fla. Sup. Ct., No. 45,359.
52. Charles William Proffitt (white), sentenced to death
for first degree murder, March 24,1974, Hillsborough
County Cir. Ct., No. 73-1397 (jury recommended
death) aff’d., 315 So.2d 461 (Fla. 1975) cert, granted,
44 U.S.L.W. 3439, January 22, 1976.
Appendix A
9a
53. James Adams (black), sentenced to death for first
degree murder, March 15, 1974, St. Lucie County
Cir. Ct., No. 73-284-CF-A (jury recommended death)
appeal pending, Fla. Sup. Ct., No. 45,450.
54. Lloyd Swan (black), sentenced to death for first de
gree murder, March 1, 1974, Dade County Cir. Ct.,
No. 73-5039 (jury recommended mercy), conviction
aff’d., death sentence vacated, 322 So.2d 485 (Fla.
1975).
55. Carl Ray Songer (white), sentenced to death for first
degree murder, February 28, 1974, Osceloa County
Cir. Ct., No. 74-27 (jury recommended death) aff’d.,
322 So.2d 481 (Fla. 1975), pending on petition for
certiorari, No. 75-5800.
56. Johnny Paul Witt (white), sentenced to death for first
degree murder, February 21, 1974, Volusia County
Cir. Ct., No. 74-181 (jury recommended death) ap
peal pending, Fla. Sup. Ct., No. 45,796.
57. Willie Jasper Darden (black), sentenced to death for
first degree murder, January 23, 1974, Citrus County
Cir. Ct., No. 73-2027-C (jury recommended death)
aff’d., Fla. Sup. Ct., Nos. 45,108 and 45,056 (Feb
ruary 18, 1976).
58. Larry Thompson (black), sentenced to death for first
degree murder, January 11, 1974, Orange County
Cir. Ct., No. 73-2386 (jury recommended mercy),
conviction aff’d., death sentence vacated, Fla. Sup.
Ct., No. 45,107 (January 21, 1976).
Appendix A
10a
59. Daniel Wilber Gardner (white), sentenced to death
for first degree murder, January 30, 1974, Citrus
County Cir. Ct., No. 73-132 (jury recommended
mercy) aff’d. 313 So.2d 675 (Fla. 1975), pending on
petition for certiorari, No. 74-6593.
60. John A. Spinkellink (white), sentenced to death for
first degree murder, December 20, 1973, Leon County
Cir. Ct., No. 73-138 (jury recommended death) aff’d.,
313 So.2d 666 (Fla. 1975), pending on petition for
certiorari, No. 75-5209.
61. Otis Terry Williams (black), sentenced to death for
first degree murder, December 6, 1973, Orange
County Cir. Ct., No. CR 73-2039 (jury recommended
mercy) appeal pending, Fla. Sup. Ct., No. 45,010.
62. James R. McCaskill (black), sentenced to death for
first degree murder, December 6, 1973, Orange
County Cir. Ct., No. CR 73-1979 (jury recommended
mercy) appeal pending, Fla. Sup. Ct., No. 45,009.
63. Howard Virgil Douglas (white), sentenced to death
for first degree murder, December 4, 1973, Polk
County Cir. Ct., No. 73-1632-CF-C (jury recom
mended mercy), aff’d., Fla. Sup. Ct., No. 44,864,
February 18, 1976.
64. Robert Sullivan (white), sentenced to death for first
degree murder, November 12, 1973, Dade County
Cir. Ct., No. 73-3236 (jury recommended death)
aff’d., 303 So.2d 632 (Fla. 1974), pending on petition
for certiorari, No. 74-6377.
Appendix A
11a
65. Clifford Hallman (white), sentenced to death for first
degree murder, November 11, 1973, Hillsborough
County Cir. Ct., No. 73-1685 (jury recommended
death) aff’d., 305 So.2d 180 (Fla. 1974) pending on
petition for certiorari, No. 74-6168.
66. Leo Learie Alford (black), sentenced to death for first
degree murder, October 16,1973, Palm Beach County
Cir. Ct., No. 73-159-CF (jury recommended death),
aff'd., 307 So.2d 433 (Fla. 1975), pending on petition
for certiorari, No. 74-671.
67. Anthony Lee Saivyer (black), sentenced to death for
first degree murder, October 15, 1973, Dade County
Cir. Ct., No. 73-1001 (jury recommended mercy),
aff’d., 313 So.2d 680 (Fla. 1975), pending on petition
for certiorari, No. 74-6563.
68. Jimmie Lee Jones (black), sentenced to death for first
degree murder, September 28, 1973, Pasco County
Cir. Ct., No. 73-326 (jury recommended mercy), ap
peal pending, Fla. Sup. Ct., No. 44,669.
69. Joseph Taylor (black), sentenced to death for first
degree murder, July 27, 1973, Broward County Cir.
Ct. No. 73-261-CF (jury recommended mercy) con
viction aff’d., death sentence vacated, 294 So.2d 698
(Fla. 1974).
70. Michael LaMadline (white), sentenced to death for
first degree murder, July 24, 1973, Okaloosa County
Cir. Ct., No. 73-60 (no sentencing jury), conviction
aff’d., death sentence vacated 303 So.2d 17 (Fla.
1974).
Appendix A
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