Wainwright v. Shuler Brief of Appellant

    UNITED STATES COURT OF APPEAL
FIFTH CIRCUIT

LOUIE L. WAINWRIGH'T, Director, ]
Division of Corrections, State |
of Florida, /

Appellant, )

v» . | CASE NO.
ROBERT SHULER and JERRY CHATMAN, )

Appellees. )

BRIEF' OF APPELLANT

GORDON G. OLDHAM, JR.
State Attorney
Fifth Judicial Circuit of Florida 
107 North Fourth Street 
Leesburg, Florida 327^8

Counsel for Appellant



UNITED STATES COURT OP APPEAL
FIFTH CIRCUIT

LOUIE L. WAINWRIGHT, Director, )
Division of Corrections, State )
of Florida, )

Appellant, )

v. | CASE NO.

ROBERT SHULER and JERRY CHATMAN, )

Appellees. )

BRIEF OF APPELLANT

GORDON G. OLDHAM, JR.
State Attorney
Fifth Judicial Circuit of Florida 
10? North Fourth Street 
Leesburg, Florida 327^8
Counsel for Appellant



TABLE OF CONTENTS

PAGE

STATEMENT OF THE CASE 1-3

STATEMENT OF FACTS 4

POINT I
Argument 5-20

POINT II
Argument 21-47

POINT III
Argument 48-50

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TABLE OF GASES
PAGE

Alligood v. Wainwright, (5th Cir. 1971) 
440 F .2d 642 50

Allsion v. Holman (5th Cir. 1963) 
326 F.2d 294 17

Brady v. Maryland, 
373 U.S. 886 19

Chapman v. California
386 u . s .  18 (19 6 7) 47

Chatman v. Cochran (Fla.S.Ct. 1962) 
146 So.2d 380 2

Cone v. Cone (Fla.S.Ct. 1953) 
68 So.2d 886 19

Fulford v. Dutton (5th Cir. 1967) 
380 F.2d 16 18

Giles v. Maryland,
386 U.S. 66, 102 (19 6 7) 23,23,25

Hopkins v. Wainwright,(5th Cir. 1971)
Opinion filed April 0, 1972 (5th Cir. 1972) 18

Jackson v. Wainwright (5th Cir. 1968) 
390 F.2d 288 47

Moore v. Dutton (5th Cir. 1970) 
432 F.2d 1281 17

Pleas v. Wainwright (5th Cir. 1971) 
441 F.2d 56 18 ,5 0

Procunier v. Atchley, 
400 U.S. 446 (1971) 17

Shuler and Chatman v. State (Fla.S.Ct. 1961) 
132 So.2d 7 1

Shuler and Chatman v. State (Fla.S.Ct. 1964) 
161 So.2d 3 2,11,27

Shuler v. Cochran (Fla.S.Ct. 1962) 
146 So.2d 380 2

Summerville v. Cook (5th Cir. 1971) 
438 F.2d 1196 18

Townsend v.Sain, 372 U.S. 293 (1962) 17,18
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OTHER AUTHORITIES CITED

PAGE

Title 28, U.S.C. 

§2254(d) 17

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STATEMENT OF THE CASE

/Robert Shuler and Jerry Chatman ~~ Petitioners 

in the U.S. District Court below -- are referred to in 

the instant brief as "Shuler and Chatman'/ Louie L.

Wainwright —  Respondent below —  is designated as 

"the State of Florida.V

Robert Shuler and Jerry Chatman were charged by grand 

jury indictment with the crime of rape in Lake County, 

Florida. Shuler and Chatman plead not guilty and were 

tried jointly before a jury on July 5, 6 and 7, i960.

The jury returned a verdict of guilty, without recommendation 
of mercy. Thereafter, on September 22, i960, Shuler and 

Chatman were each sentenced to death in accordance with 

the mandate of Florida Statutes, §794.01,

Shuler and Chatman pursued a direct appeal from their 

convictions to the Florida Supreme Court, which resulted 

in an Opinion affirming the convictions, Shuler and Chatman 

v. State (Fla.S.Ct. 1961) 132 So.2d 7 .

Approximately one-year after the Florida Supreme 
Court's decision, Shuler and Chatman each filed pro se 

handwritten petitions for writ of habeas corpus in the 

Florida Supreme Court, alleging among other things that 

the confessions introduced against them at trial were 

procured in violation of their constitutional rights and 

that certain items introduced in evidence against them were 

the products of illegal searches. Both petitions were

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denied without opinion of the Florida Supreme Court,

Shuler v. Cochran (Fla.S.Ct. 1962) 146 So.2d 380;

Chatman v, Cochran (Fla.S.Ct. 1962) 146 So.2d 380.

Shortly after the Supreme Court's orders denying 

the pro se petitions Shuler and Chatman, through legal 

counsel, filed a second petition for writ of habeas corpus, 

alleging that their convictions were based upon purjured 

testimony and false real evidence, and charging that the 

State had suppressed favorable evidence. In response to 

this second petition the Florida Supreme Court appointed 

a special hearing commissioner -- a retired Florida Circuit 
Court Judge -- who was instructed to take testimony, 

receive evidence and report to the Supreme Court. The 

hearing commissioner for the Court conducted a two-day 

adversary hearing, and thereafter filed a report containing 

findings of fact and recommending a ruling adverse to 

Shuler and Chatman. On February 19* 1964, the Florida 
Supreme Court dismissed the second petition for writ of 

habeas corpus, rendering an opinion adopting the special 
commissioner's report in its entirety, Shuler and Chatman 

v. State (Fla.S.Ct. 1964) l6l So.2d 3-
Three months later, on May 28, 1964, Shuler and Chatman 

through counsel filed a petition for writ of habeas corpus 

in the United States District Court for the Middle District 

of Florida, Jacksonville Division. The basis of this 

Federal petition for writ of habeas corpus were:

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(1) the State used faked real 
evidence at the trial;

(2) the State suppressed exculpatory 
statements of the rape victim;

(3) the State used evidence which 
was the product of unlawful 
searches; and,

(4) the State introduced in evidence 
constitutionally infirm confessions 
made by both Shuler and Chatman.

Approximately eight years later, on May 4, 1972, 

the U.S. District Court for the Middle District of Florida 

decided the issues presented to it by the petition for 

writ of habeas corpus filed by Shuler and Chatman back in 

May of 1964. The Federal Court's "Opinion and Writ of 

Habeas Corpus" is a 28 page document which "surveys" 

the facts and law applicable, grants the request petition 

for writ of habeas corpus, and orders a new trial for 

Shuler and Chatman.
The State of Florida filed timely notice of appeal 

with the U.S. District Court, and the lower Federal Court's 
"Opinion and Writ of Habeas Corpus" now is pending before 

this U.S. Circuit Court of Appeals for review on its merits.

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STATEMENT OF FACTS

Due to the complexity of facts and issues involved 

in this Appeal the State of Florida believes that a more 

useful and comprehensible presentation of the case can 

be accomplished by presenting the relevant facts in the 

argument portions of the following Brief of Appellant. 

Thus the relevant facts are set forth as applicable in 

aach of the three Points-on-Appeal.

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POINT I

WHETHER THE U.S. DISTRICT COURT 
BELOW ERRED IN DETERMINING 
THAT CERTAIN PLASTER FOOTPRINT 
CASTS WERE IMPERMISSIBLY INTRO­
DUCED IN EVIDENCE AGAINST SHULER 
AND CHATMAN BECAUSE OF "TAINTED 
AND FALSIFIED TESTIMONY" AS TO THE 
CASTS' AUTHENTICITY.

ARGUMENT

One of the issues raised in the petition for writ 

of habeas corpus filed by Shuler and Chatman in the 

Federal court below concerned whether certain plaster 

footprint casts introduced as trial evidence against them 

were falsified by State officials. This same issue 

had been inquired into extensively at the evidentiary 
hearing conducted by the Florida Supreme Court's special 

commissioner back in 1963 —  nine years earlier.
The lower Federal court's opinion reviews the "facts" 

which support its decision to reverse Shuler and Chatman's 

conviction (page 4-7), surveys the well established law 

applicable to such facts (pages 7-9)5 and then severally 

castigates the State courts for allowing the convictions 

ever to be premised upon such obviously falsified evidence 

(pages 9-10).

The U.S. District Judge's opinion reviews the "facts" 

developed at the evidentiary hearing before the Florida 

Supreme Court's special commissioner by setting forth 

the evidence which supported the claims made by Shuler 

and Chatman -- and by setting forth only such favorable

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evidence. The District Judge's opinion dwells at length

upon the testimony of two former Deputy Sheriff's of Lake

County Florida, noting that:
"Noel Griffin, Jr. and Thomas Ledford, 
formerly employed as Deputy Sheriffs 
of Lake County, Florida, at the time 
of the criminal investigation and trial, 
came forward and publicly stated that 
the plaster of paris footcasts introduced 
at trial had been fraudulently manufac­
tured in the back ;yard of, and by, Deputy 
Sheriff L.G. Clark. At the commissioner's 
hearing extensive evidence was taken 
regarding these footcasts."

(Opinion and Writ of Habeas Corpus, 4-5)
(footnotes omitted)

* * * *

"Former Deputy Sheriff Noel E. Griffin,
Jr. testified at the commissioner's 
hearing that there were only three 
partial footprints at the crime scene 
when he and former Deputy Sheriff 
Ledford arrived. These partial prints 
were covered. Griffin testified that 
he was certain there were only three 
partial prints because (1 ) the whole 
area was searched, (2) it rained after 
the three partial prints were covered,
(3) the victim had chickens which would 
have destroyed any other prints, and
(4) the deep sand around the house 
would not admit of perfect prints.
Therefore, Griffin testified, the plaster 
of paris footcasts introduced at trial 
could not have possibly been made at the 
crime scene. Finally, Griffin testified 
that at a pre-trial meeting with State 
Attorney Gordon G. Oldham, Jr., he was 
commanded by Oldham not to '. . . mention 
the word 'rain', don't even think about 
it. . . . It will mess things up'.

Former Deputy Sheriff Thomas Ledford 
was also called as a witness at the 
commissioner's hearing by the petitioners.

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Ledford also testified that there were 
only three partial footprints at the 
crime scene when he and Griffin arrived.
Ledford also testified that it rained 
and that State Attorney Oldham instructed 
the witness at a pre-trial conference that 
they '. . . were not to mention rain in 
any part, portion, or any way during this 
trial, because if we did it would mess 
things up1. Petitioners' attorney also 
attempted to solicit from Ledford the 
statement which Deputy Lucius G. Clark 
made to him at the trial immediately 
following Ledford's trial testimony.
Ledford's answer was excluded by the 
commissioner as hearsay. An answer to 
the propounded line of questioning would 
have tended to resolve the issue as to 
whether Deputy Clark admitted to Ledford 
that the plaster of paris footcasts were 
falsely manufactured in Clark's back yard."

(Opinion and Writ of Habeas Corpus, 6-7) 
(footnotes omitted)

The Federal Court's opinion below also surveys the

testimony of two FBI agents who were called as witnesses

for Shuler and Chatman at the hearing. One of the agent's

had examined the footcasts in question, and through his

testimony at the hearing,

"It was developed without objection that 
the six specimens from the 'scene' were 
those taken from the 'scene' of the 
alleged rape, that is, from around the 
home of the victim, and that the five 
specimens from the 'back yard' were those 
taken from the yard of Deputy Sheriff 
L.G. Clark. The respective soil samples 
were compared with soil clinging to the 
plaster of paris footcasts. Special 
Agent Flach concluded:

. . .  I could state that the soil that 
I removed from the six casts could 
not have come from the scene of the 
alleged rape, and that the soil on the 
casts that I had removed could have come 
from the scene -- I mean from the 
backyard specimens, the same scene

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On cross-examination there was an attempt 
to discredit this testimony by exploring 
the possibility of whether the effect of 
washing caused by rain and slope could 
have removed so much of the topsoil from 
the ground at the crime scene as to make 
the comparison and conclusion impossible.
However, such a possibility was deemed 
'a very extreme remote possibility1, and 
Flach concluded that he could 1. . . make 
a very positive statement. . . and say it 
(the soil clinging to the footcasts) did 
not come from the crime scene because it 
was so entirely different1.”
(Opinion and Writ of Habeas Corpus, 5-6) 

(footnotes omitted.)
The opinion then points out that the second FBI agent,

"* * * compared the six plaster footcasts 
with the four shoes. He found that two 
of the casts could not have been made by 
any of the shoes. He was able to state 
positively that three of the remaining 
casts were made by three of the remaining 
shoes. He observed that the casts were 
'almost perfect' and 'very very clear 
Such footcasts, he concluded on the basis 
of his experience, are 'not normally 
the case'. The footcasts which he examined 
were 'perfectly flat', a circumstance which 
would not normally be the case when a 
person walks in sandy ground; for, in 
moving, walking or running, usually the 
toe and heal area are depressed. Therefore, 
Special Agent Thompson concluded that 
the plaster of paris casts varied from what 
he would normally expect to find in such^ 
casts made by people moving in the sand.
(Opinion-and Writ of Habeas Corpus, 6)

(footnotes omitted)

as the backyard specimens.

-8-



opinion below states were developed at the adversary

hearing conducted by the commissioner for the Florida

Supreme Court, the Federal District Judge's opinion makes

no mention or acknowledgment of contrary evidence. Based

upon the foregoing facts the Federal judge says:
"This new evidence that the plaster of paris 
footcasts was falsified by officials of the 
State springs from such reliable sources that 
it would appear doubtful whether the footcasts 
would be introduced by the prosecution at a 
new trial. However, regardless of the State's 
tactics at a new trial, it is the considered 
opinion and conclusion of this Court that, 
if the 'new evidence' were presented at trial, 
it would probably result in an acquittal 
of the defendants. Indeed, rational and 
fair men cannot honestly and ethically 
dispute the point.

It is difficult, to the point of being 
nearly impossible, to imagine how such 
petitioners, convicted upon the State's 
deliberate presentation of testimony known 
to be perjured, could ever better prove 
a case for post-conviction relief.

This Court will not permit the conviction 
of these petitioners on such tainted and 
falsified testimony. The organs of govern­
ment do not need convictions based upon such 
testimony. A strong and free nation cannot 
abide this type of 'justice'. Not only our 
Constitution, but the interest of justice 
itself, require and demand a new trial.
Napue v. Illinois, 360 U.S. 264 (1959)>
Mesarosh v. United States, 352 U.S. 1 
(1956). Consequently, upon consideration 
of this issue alone, this Court hereinafter 
grants and issues this writ of habeas corpus."

(Opinion and Writ of Habeas Corpus, 9-10)

Other than for the preceeding "facts" which the

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Indeed, with unrefuted facts such as those revealed 

in the lower Federal Court's survey of the testimony, how 

could any fair minded and rational individual conclude 

otherwise? In the face of unchallenged testimony by 

"such reliable sources" it appears that the Lake County 

Sheriff's Department, the undersigned legal counsel as 

prosecutor of the cause, the special commissioner for the 
Florida Supreme Court, and the judges of the Florida Supreme 

Court themselves, all well deserved the verbal horsewhipping 

so severly administered by the Federal judge who wrote 

the opinion below —  in the face of unchallenged testimony 

by"such reliable sources."
The opinion of the Federal judge below invokes the 

concurrence of all "rational and fair men." The State 

of Florida submits it was grossly unfair for the judge 
to have done so —  thereby portraying the Sheriff's Office, 

myself, and the justices of the Florida Supreme Court as 

unfair and irrational men for having concluded to the 

contrary —  without first presenting in his opinion for 

all rational and fair persons to read and consider, a 

fair sampling of the evidence upon which the Florida 

Supreme Court premised its contrary determination.

When the Florida Supreme Court denied Shuler and 
Chatman's second petition for writ of habeas corpus, it 

entered an opinion containing an extensive review of the 

hearing testimony relating to the plaster footprint casts.

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At no place in the Federal Court's opinion below does
the Federal judge even suggest that the Florida Supreme

Court's review of the testimony was inaccurate or not

supported by the record. Indeed, an examination of

the hearing transcript sustains the accuracy of the Florida

Supreme Court's survey of the testimony. That survey

reveals the following additional facts which rational,

fair minded men would insist upon knowing before determing

to join with the Federal judge below in his moral flogging

of those involved in the prosecution and review of Shuler

and Chatman's trial for rape. Rational and fair minded

men would want to know that,
"'Petitioners' allegations that allegedly 
falsified footprint evidence was knowingly 
used by Lake County Sheriff Willis McCall_ 
is based exclusively on what former deputies 
Ledford and Griffin admit, in their supporing 
statement, is simply their opinion. Seei 
petition for writ of habeas corpus."
Shuler and Chatman v. State (Fla.S.Ct. 1964) 
lbl So.2d 3, at y -8

Rational, fair minded persons would agree that,

"It must be kept in mind that the proof 
of the alleged pouring of the casts ~ 
in Clark''s backyard is"“based solely on.
THe~testimony of Ledford who~~testifie~d 
that Clark told him that he had poured 
them in his backyard. T1EIi~TesTImor^r~ 
is denied by dlark."
Ibid, at tt (emphasis added)

Concerning the public statements by former deputies 

Ledford and Griffin that Deputy Clark "told them" he.had 

falsified the footprints, reasonable person doubtless 

would consider it relevant that -- after considering 

the testimony of Ledford and Griffin -- the Supreme Court's

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commissioner noted,

"The only testimony presented to me.at 
the aforesaid hearing with reference 
to those alleged admissions as to the 
falsification of the footprint casts was 
of a most sketchy nature and was hardly 
as pointed as originally made out in 
the original statement of deputies 
Ledford and Griffin. See pages 5 
through 32 and 33 through 58. The 
admittedly unusual delay in making 
known their claims raises grave doubt 
as to their motives; then or now. Their 
respective testimony, when compared with 
the allegations made in their original 
statement, reveals that while they were 
once quick to draw a series of conclusions 
therein, they were not ready or willing to 
give forth sworn testimony in that same 
regard. There is a notable absence of 
any testimony by either of them bearing 
on the state attorney's known use of 
any allegedly falsified footprints."
Ibid, at 5-6

Fair minded persons would want to know that the 

commissioner who heard their testimony concluded that 
Ledford and Griffins 1s testimony was "little more than 

unexplained conclusions on their part." Ibid, at 6,

(emphasis added).
Finally, people of sound and fair judgment would 

deem it necessary to consider the fact that deputies 
Clark and Yates filed sworn statements with the Supreme 

Court in which
"* * * it is noted that each of these 
men, by these sworn statements, denied 
any and all allegations pertaining to 
their alleged criminal complicity."
Ibid, at 6.

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irrational for the Florida Supreme Court to discredit

the testimony of Deputies Ledford and Griffin? But before

you answer that question, consider also the following:

"'The claims and testimony of the former 
deputies, Ledford and Griffin, relative to 
an alleged remark by State Attorney Oldham 
at the pre-trial conference that deputy 
Griffin made no reference to the word 
'rain' because it would 'mess things up' 
was denied by all of respondent's witnesses, 
who themselves were present at said pre­
trial conference save and except Deputy Sheriff 
Douglas Sewell (Tt. 219-230). He seemed 
to recall that deputy Griffin made some 
metion of 'rain' but he did not believe 
that his remark related to rain at the scene 
of the crime at the pertinent time in 
question but rather just a general reference 
thereto (Tt 227-228). All of the parties 
present at said pre-trial conference with­
out exception denied ever having heard State 
Attorney Oldham suggest directly or otherwise 
that no one make any mention of rain. State 
Attorney Oldham himself testified (Tt. 209- 
214) and categorically denied that either 
deputies Griffin or Ledford made any remark 
whatever concerning rain and that he in 
fact made no mention that either of said 
deputies or anyone else should make no mention 
of rain or, for that matter, anything else.
He further testified that at no time, including 
the present, did he have any knowledge or 
reason to suspect that the footprint evidence 
was in fact not authentic.

'Deputies Ledford and Griffin testified 
that when they arrived at the scene of the 
crime, their prefunctory examination of 
the surrounding area revealed only three (3) 
partial footprints which they considered 
worthy of being poured as casts. These 
they covered in one manner or another so as 
to preserve them against obliteration. At 
this point they proceeded to track the 
suspects with the dogs which they had brought 
to the scene for that purpose. Posed against

In view of the foregoing, was it so unfair and

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their testimony as to the number and 
quality of footprints at the scene of 
the crime is that of all parties who 
arrived there at a later time as well 
as that of Deputy Spence who was the 
first law enforcement officer on the 
scene after the rape occurred. He 
testified (Tt 171-197) that there were 
host of tracks at all the windows and 
doors of the house in question as well 
as all around the house. He added that 
he was careful not to enter the area and 
perhaps ruin the tracks.

'Assistant State Attorney John McCor­
mick testified that when he arrived at 
the scene of the crime there were plenty 
of good tracks available (Tt. 139-1^2; 
163-176). Sheriff Willis McCall testified 
that when he came on the scene that many 
good tracks were in existence and that 
more than a few were covered by his men 
(Tt 143-162).

'Deputy Sheriff Douglas Sewell testified 
that many good quality footprints were in 
existence at the scene of the crime (Tt 
219-232) and further that he saw the casts 
being poured by Yates and Clark at the 
scene of the crime while he was inside 
the victim's house conducting an 
investigation thereof.

'Deputy Sheriff Collis Godwin testified 
(Tt 234-238) that upon arrival at the 
scene of the crime there were many good 
quality tracks in and around the region of 
the house and in fact a set of tracks _lead­
ing away therefrom. He further testified 
that he and Spence picked up two (2) casts 
which had been poured, which casts Spence 
ultimately turned in to the I.D. room of 
the sheriff's office in Tavares.

1 The testimony of petitioners' tempo­
rary accomplice, Levi Summers (Tt. 215- 
219) who abandoned the original joint ven­
ture prior to the rape of Charlotte Wass, 
itself reveals that a great deal of activity 
was engaged in by him and petitioner in 
and about the windows and doors of the 
victim's home.

'The confessions of petitioners Shuler 
and Chatman add considerable stature to 
the testimony of Levi Summers as well as 
to that of the witnesses presented by the 
state.

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'The evidence with regard to the number 
of footprints and the quality thereof set 
out above compels me to conclude that the 
testimony of deputies Ledford and Grif­
fin with reference thereto is not worthy 
of belief and that in fact there were 
ample footprints available at the scene 
of the crime from which good quality 
impressions could have been secured."
Ibid, at 6-7

Can it be said that the commissioner's conclusion is 

unsupported and unreasonable? Does the record developed 

in state court truly demonstrate the Florida Supreme Court 

erred in adopting the commissioner's conclusion?

Also, was the Federal judge below really warranted 

in his one-sided review of testimony concerning the 

undersigned counsel's alleged "command" that witnesses 

suppress testimony about rain in the area of the crime 
scene? Why did the Federal judge, throughout his opinion, 

review only facts which supported his conclusion, without 

even mentioning that contrary facts were contained in the 

record?
Turning now to the testimony of the two FBI agents -- 

whose testimony the Federal judge determined deserved 

total credibility because they were "such reliable 

sources" of proof -- one must wonder how the Florida 
Supreme Court overlooked such unimpeachible testimony.

The Supreme Court explained how.

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"'The testimony of the soil expert from 
the Federal Bureau of Investigation* one 
Richard W. Flach (Tt. 85-97) does appear* 
at least at first reading* to conclude that 
based upon his analysis of the soil samples 
sent his laboratory by the investigator 
of the Florida State Sheriff's Bureau* one 
Roma Trulock* that the footprint casts 
could not have been poured at the scene 
of the crime but could have been poured 
at the home of the former deputy Lucius 
Clark. The soil samples which were taken 
by investigator Trulock both from the 
scene of the crime and Clark's backyard 
were taken some appreciable time (approx­
imately 18 months) after the crime was 
committed. There is no testimony or evi­
dence to demonstrate or even indicate that 
the soil conditions at these two places were 
not the same at the time the crime was 
committed. In fact Agent Flach reluctant­
ly admitted that the natural slope of the 
terrain surrounding the victim's home could 
conceivably (either by erosion or rainfall) 
result in the topsoil being removed to a re­
spectable degree or depth of at least an 
inch. Such an admission on his part per­
mits of a valid conclusion that the soil 
might well have been identical at the time 
the crime was committed and yet because 
of the aforesaid that the soils could have 
been different when the samples were taken 
by Trulock some 18 months later.

'Flach's testimony* while perhaps some­
what compelling as far as it goes* simply 
did not* because of the aforesaid* in my 
view, preponderate. Because of this* I find 
that it is quite compatible for him to tes­
tify that his investigation may well have 
required him to conclude as he did and yet 
not conflict with the very real possibility 
of the topsoil differential which he ad­
mitted could be so. I cannot and do not 
consider that evidence in such a state to 
be an adequate basis upon which to find 
that the casts in question were in fact 
falsified.

'The testimony of F.B.I. agent Thomp­
son* because of his own doubts and re­
luctance to take a positive position(Tt.98- 
110) is* in my opinion, of no significant 
value to the issues at hand."
Ibid, at 8

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In view of the foregoing, is there a basis to determine 

the Florida Supreme Court1s view of the evidence was not 

fairly supported by the record? /And even if there is 

a basis for so determining, in view of all the facts 

is the verbal scourging inflicted by the Federal judge 

below, really warranted?/
The State of Florida takes the same legal position 

before this U.S. Circuit Court which it took before the 

Federal District Court below. It has been demonstrated 

that there was sufficient, competent evidence before the 

Florida Supreme Court and its commissioner which —  if 

they chose to believe that evidence -- refuted totally 

the allegations made by Shuler and Chatman. Since there 

was a clear and irreconcilable conflict in the evidence 

concerning the footcasts, and since one side of that 

conflicting evidence clearly sustained the Florida Supreme 

Court's determination that the footprints were proper, 

the U.S. District Court below should have upheld the 

determination of the Florida Supreme Court. The Federal 
District Court below erred reversibly In failing to afford 

the state court's findings the presumption of correctness 

which attached to those findings: Title 28, U.S.C. §2254(d) 

Allsion v. Holman (5th Cir. 1963) 326 F,2d 294; Moore 
Dutton (5th Cir. 1970) 432 F.2d 1281; Townsend v. Sain, 372 

U.S. 293 (1962), Procunier v. Atchley, 400 U.S. 446 (1971).

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It is undeniable that there was a genuine conflict 

in the testimony concerning the validity of the footprint 

plaster casts. Is it not a most singular circumstance 

that the Federal judge below determined —  more precisely, 

he re-determined -- the credibility to be assigned witnesses 

and the weight to be accredited conflicting evidence.

The State of Florida suggests the Federal judge below 

further erred reversibly by redetermining the questions 

of weight and credibility —  these were functions 
exclusively for the State courts to perform. Cf. Fulford 

v. Dutton (5th Cir. 1967) 380 F.2d l6; Summerville v. Cook 

(5th Cir. 1971) 438 F.2d 1196; Pleas v. Wainwright (5th 

Cir. 1971) 44l F.2d 56; and Hopkins v. Wainwright, Case 

No. 71-3104, Opinion filed April 6, 1972, (5th Cir. 1972).

/Note that Shuler and Chatman in their Conference 

Memorandum of Petitioners filed in the Federal Habeas 

Court below, at pages 14-15* specifically conceeded they 
received a full and fair development of the facts at the 

Supreme Court's evidentiary hearing. See also: Memorandum 

of Law and Facts filed by the State of Florida, at page 2. 

Thus there is no issue before this U.S. Circuit Court of 

Appeal concerning whether Shuler and Chatman received a 

full and fair inquire into the facts, Cf. Townsend v. Sain, 

supra. The only issue involved is whether the Florida 

Supreme Court’s determination of the cause is fairly 

supported by the record which was developed_77

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The State of Florida submits the Florida Supreme 

Court's determination that falsified footprint plaster- 

casts were not used at Shuler and Chatman's trial is a 

determination which plainly and fairly is supported by the 

record developed in State Court. The U.S. District Court 

below erred reversibly in ruling the footprint casts to 

have been falsified, and in failing to afford the State 

court's findings their presumption of correctness. The 

U.S. District Judge should not have re-determined which 

witnesses were to be believed and which evidence was to be 

given prevailing weight. Finally the Federal judge below 

abused sound discretion by reviewing only facts supporting 
his decision, then castigating the Florida Criminal Justice 

System, and invoking all fair and reasonable men to join 

in his condemnation.

"More than 300 years ago one of
the great masters of our craft

So.2d
886,' BBS'. "

"* * * a judge should be deeply 
sensitive to the dignity of the 
court room and equally respectful . 
to the law and lawyers. Such a 
brand of conduct begets confidence 
in the bar and the public; it 
engenders in the public and exalted 
and merited admiration for the 
judiciary, which is not acquired by 
permitting oneself to boil inside, 
run over at the mouth, then castigate 
members of the bar or distort appellate 
decisions. Such conduct falls far 
short of constructive criticism."
Ibid, at 886.

pointed out that a 'much talking 
judge is no well tuned cymbal,' ! 
Cone v. Cone (Fla.S.Ct.1953) 68

-19-



The partial and one-sided presentation of facts 

contained in the Federal judge's opinion here appealed, 

does not beget confidence in the criminal justice 

system of Florida. A fair viewing of all the record—  

even if one might have ruled differently had he been 

sitting on the Florida Supreme Court in 1964-- would not 

lead one to have such a severe attitude as displayed in 

the opinion here on appeal. The opinion below falls 

far short of constructive criticism.
Insofar as concerns to validity of the plaster 

footprint casts, the only issue which required resolution 

by the U.S. District Court was whether the record developed 

in State courts fairly supported the 1964 opinion of the 

Florida Supreme Court. The Federal District Court wrote 

an extensive, scolding conclusion which holds the record 

did not fairly support the Florida Supreme Court's 1964 

decision; yet the Federal court's lengthy opinion reviews 

only half of the facts upon which that conclusion must sit. 

The hemipygallian factual review contained in the lower 

Federal court's opinion should be completed by this 

United States Circuit Court of Appeals; then the legal 
conclusion contained in the court's opinion should be 

reversed.

-20-



POINT II

WHETHER THE FEDERAL HABEAS COURT 
BELOW ERRED REVERSIBLY IN DETER­
MINING THE STATE SUPPRESSED 
FAVORABLE EVIDENCE CONTRARY TO 
SHULER AND CHATMAN'S CONSTITUTIONAL 
RIGHTS AT TIME OF THEIR TRIAL IN 
I960.

The Federal Habeas Court below granted Shuler and

Chatman Habeas relief and a new trial on a second ground

entirely independent of the basis for relief discussed

in Point I above. The Court determined that the State

in i960 suppressed a transcribed exculpatory statement

which had been made by the rape victim.
"The evidence is uncontradicted that 
the State suppressed this evidence and 
never furnished it to the defense. After 
a careful study this Court concludes that 
this statement is favorable evidence of an 
exculpatory nature which is material to 
both the guilt and punishment of each 
petitioner herein. Petitioners Robert 
Shuler and Jerry Chatman are entitled to 
a new trial on this allegation without 
regard to any other issue in this case."

(Opinion and Writ of Habeas Corpus, page 11) 
(footnotes omitted)

The Court below also determined the suppression of the 

statement could not have been harmless error, and that 

the suppression was reversible prejudice to Shuler and 

Chatman in spite of the fact no timely demand or inquiry 
was made by them prior to or during trial. See Opinion 

and Writ of Habeas Corpus, pages 11-14.

-21-



The Federal Judge below premised his determination 

upon the holding of the U.S. Supreme Court in Brady v. 

Maryland, 373 U.S. 83 (1963), a decision written three 

years after the trial in the instant case. It is perhaps 
unfortunate that the undersigned counsel was not able during 

trial of this cause to anticipate the Supreme Court's 

ruling which was to occur three years later; but perhaps 

it also is unreasonable now to inform counsel that that is 

exactly what he was bound to do -- a reversal of Shuler 

and Chatman's conviction being the penalty for falling to 

do so. Nevertheless, it is the State's position before 

this Court that Brady v. Maryland, supra, is not controlling. 

The U.S. Supreme Court in Brady v. Maryland, supra, at 87, 

merely said,
"We now hold that the suppression by 
the prosecutor f evidence favorable 
to an accused upon request violates 
due process where the evidence is 
material either to guilt or to 
punishment, irrespective of the good 
faith or bad faith of the prosecutor."

Note the qualification, "upon request." There was no

request in this case. See: Opinion and Writ of Habeas

Corpus, page 14. Thus the lower Federal Court erred in

applying the Brady standard to the facts of this case.
The Court below anticipated the preceeding response 

by saying,
"And, with regard to a demand by the 
defense, if the defense does not know 
of the existence of such favorable

-22-



evidence, suppression thereof by the 
prosecution cannot be permitted; for, 
if otherwise, the rule would be 
nugatory. That is to say, the Brady 
rule supra must mean something more 
than that the defense is entitled to 
that which it already knows. See 
Giles v. Maryland, 386 U.S. 66^ 102 
(I967).(Fortas, J., concurring.)"

(Opinion and Writ of Habeas Corpus, 14)

Giles v. Maryland, supra, arose from rape convictions

in the State of Maryland. The U.S. Supreme Court in its

Giles opinion made it abundantly clear it was not deciding

whether a prosecutor must disclose all evidence regardless

whether a request was made by defense counsel.

"Thus the case presents the broad 
questions whether the prosecution’s 
constitutional duty to disclose 
extends to all evidence admissible 
and useful to the defense, and the 
degree of prejudice which must be 
shown to make necessary a new trial.
We find, however, that it is unnecessary, 
and therefore inappropriateT to examine 
those questions. In Napure v~. Illinois 
supra, 3b0 US, at 269  ̂ 3 L ed 2d at 
1220, we held that a conviction must 
fall under the Fourteenth Amendment 
when the prosecution 'although not 
soliciting false evidence, allows 
it to go uncorrected when it appears,' 
even though the testimony may be 
relevant only to the credibility of 
a witness. We now have evidence 
before us, which neither Judge 
Moorman nor the Court of Appeals 
considered, which in our view 
justifies a remand to the Court of 
Appeals for its consideration whether 
that court should order an inquiry to 
determine whether such a situation arose 
at petitioners' trial. The evidence 
consists of two police reports, not 
part of the record, which came to

-23-



our attention when the State at our 
request supplied the material con­
sidered by the trial judge in im­
posing sentence,"
Giles v. Maryland,supra, at 73-7^

The opinion in Giles specifically does not rule upon

the point of law which the Federal District Judge in the
present case cites the Giles opinion as being authority

for. It is only in the concurring opinion by Justice

Fortas that the Federal Habeas Court below finds dictum

sustaining the basis for reversing Shuler and Chatman’s

state court convictions for rape. Justice Fortas said*

"I see no reason to make the result 
turn on the adventitious circumstance 
of a request. If the defense does 
not know of the existence of the 
evidence., it may not be able to 
request its production."
Giles v. Maryland3 supra * at 102

The U.S. Supreme Court -- contrary to the views of

Justice Fortas -- has yet to hold the prosecution
constitutionally compelled to disclose favorable evidence

absent a request.
Assuming* arguendo* that Justice Fortas' statement 

is the law applicable* the convictions in the instant 

case nevertheless would be proper. Bear in mind that 

the exculpatory statement allegedly suppress was one made 

by the prosecutrix. This is not a case where we are 

dealing with some unknown surprise witness whose existance 

was suppressed by the prosecution. And -- unlike the facts

-24-



in Giles v. Maryland, supra -- this is not a case where 

the prosecutrix took the stand and gave testimony the 

prosecution knew to have been false or to have been 

contradicted by prior inconsistant statements of the 

prosecutrix. Rather* we are dealing here with the State's 

act of not volunteering exculpatory evidence without 

inquiry or request by defense counsel. There is no authority 

retroactive to the i960 trial date which sustains the 

U.S. District Court's ruling on this point.
Consider another perspective on the subject. Would 

not common sense and sound judgment require that before 

Justice Fortas' standard is to be made applicable* a 

factual determination first must be made that the allegedly 

suppressed evidence was not reasonably available to 

defense counsel in the ordinary exercise of his respon­

sibilities as legal counsel? If not* then the burden 

is upon the prosecutor to guarantee the preparedness of 

defense attorneys.
No determination was made in this case that the 

prosecutrix's exculpatory statement was unavailable to 

Shuler and Chatman. Indeed* the State of Florida submits 

that due diligence by defense counsel in the case at bar 

necessarily would have revealed the very evidence allegedly 

suppressed. Certainly defense counsel was free to inquire 

of the prosecutor whether such evidence existed. /Defense

-25-



counsel was just as capable as the prosecution was to 

anticipate the Brady opinion^ Further* defense counsel 

easily could have talked with the prosecutrix herself* 
discovering exactly what her understanding of the events 

was* constituting the vicious rape perpitrated in this 

case. More importantly* the defense attorney had every 

right to subpoena the prosecutrix as a defense witness* 

thereby soliciting from her on the witness stand any 

testimony she may have been able to give of an exculpatory 

nature. By what State action were Shuler and Chatman 

deprived of any constitutional rights?
In view of the uncontradicted fact that the prosecutrix's 

statements were available to Shuler and Chatman* the 

Federal Habeas Court below erred reversibly in determining 

their rape convictions invalid on grounds of suppression 

of favorable evidence by the State.
Even if the State did impermissibly suppress favorable 

evidence* the Court below erred in reversing Shuler and 

Chatman's convictions* because the suppression necessarily 

would have been harmless error.
The State of Florida did not call the prosecutrix 

to the witness stand for the obvious reason that she was-- 

as a result of the vicious rape-beating inflicting upon 

her —  a babling incompetent. The record before this

-26-



Court reflects she would and did say contraditory 

nonsense, damning Shuler and Chatman as guilty parties 

one moment and giving contradictory exculpatory statements 

the next. The nature of the mental incompetency she 

suffered as a result of her rape, rendered her totally 

useless as a source of evidence to the State. This 

same incompetency which served as the State's reason for 

not using the prosecutrix as a witness at trial, also 
demonstrates why an improper suppression of an exculpatory 

statements made by her before trial would have been a 

harmless suppression of evidence. The prosecutrix's 

transcribed statement, which is part of the record before 

this Court, clearly sustains the Florida Supreme Court's 

observation that,
"* * * the victim's statement, though 
taken shortly after the rape occurred 
is so disjointed and susceptible to 
any one of several analyses, that its 
use as the basis for such a claim 
(of improper suppression of evidence) 
is almost valueless. It is observed 
that there would be little if any 
difference in the result even if her 
fragmentary recollection could be 
said to be possessed of any degree of 
accuracy whatsoever."
Shuler and Chatman v. State (Fla.S.Ct.
1964) 161 'So.25 "37“ at“ *P5

-27-



At trial of the cause the medical doctor who examined

the victim on the evening of the rape testified as to the

brutal injuries inflicted upon her, and also confirmed

she was incompetent at that time.
"Q. Do you know whether or not she 
was incompetent at the time she was 
in your hospital, doctor?

A. She was incompetent."

(TT 258)
Thus, even if Justice Fortas1 view of the Brady

decision were binding and accurate, was not the Florida

Supreme Court justified in determining
"* * * that the state attorney had 
the right and duty to assess the 
value of the statement in question 
and in so doing, if he found it 
wanting in any material particulars, 
to reject it as the basis of any 
proof or evidence whether in favor 
of petitioners or against them."
Ibid, at 5.

In addition to the foregoing, the overwhelmingly 

convincing nature of the evidence produced at Shuler and 
Chatman's trial further establishes the totally harmless 

and insignificant effect which an improper suppression 

of the prosecutrix's statement would have had —  had an 

improper suppression of the statement actually occurred.

The first witness to testify for the State was 

Levi V. Summers (TT 215-232) who was a twenty-year-old

-28-



resident of Fruitland Park, Florida, where he lived in 
a house with Robert Shuler, Shuler's wife and grandfather 

up to the events of March 10, i960. He had lived there 

four years, worked loading fruit and picking watermelons, 

and knew Jerry Chatman. He also knew Charlotte Wass—  

the rape victim -- whose home was close to the house 

where Levi Summers lived with the Shuler family.

On March 10, i960, Levi Summers went with Shuler 

into nearby Leesburg, Florida, where they met Chatman 

who had a car -- a Buick. They all returned to the Shuler 

residence in time to eat supper. After supper Robert 

Shuler told Levi Summers to get some old shoes so they 
could "go get some money." Levi complied, they all three 

got into Chatman's car, and "rode on across the field 

over there to Miss Charlotte's house." The purpose of 

the trip was explained by Levi Summers:
"q . Why did you go to the home of Charlotte
Wass ?
A. We went there to commit a robbery.

Q. You went there to commit a robbery, all
three of you?

A. Yes sir."

(TT 221)
Levi Summers' testimony concerning the events which followed 

served as the heart of the State's case against Shuler and 

Chatman:

-29-



"Q. O.K. What happened when you got there?

A. We parked the ear down below her house 
and we got out and walked over there to her 
house, up to the door. The light was off.
I didn't know whether anybody was home or 
not and we knocked on the door. She answered, 
'Who is it?' And nobody said anything. We 
knocked again and she answered again and 
nobody said nothing and she started hollering 
and all three of us, we ran and ran back to 
the car. We got in the car and rode around 
by her house and Jerry asked, 'Reckon she is 
still home?' And I said, 'I don't know.'
And he said, 'We can't leave without getting 
the money.'
Q. That's Jerry Chatman that said that?

A. Yes sir.

Q. Go ahead.

A. He asked should we pa,rk the car and I 
said I didn't know, so we turned up out 
of the road to go by the house and Robert 
told him don't park the car there.

Q. Don't park it?
A. Don't park it because Mr. Gene he gets 
to drinking and he tells everybody he's seen 
the car, so we went and parked the car up 
under the oak tree by the lake.

Q. Who is Gene?
A. Mr. Eugene is all I know about.

Q. So you went and parked by the lake?

A. Yes sir.
Q. Then what did you three do?

A. We got out and walked across the field 
back up to her house and when we got there, 
it was the same thing again. We went to the 
front door and done the same thing and knocked 
on it. She answered, 'Who is it?' And didn't

-30-



nobody say nothing* and Jerry told me 
to pull the screen door.
Q. Jerry told you to pull the screen open?

A. Yes* I had the hanky in my hand. I
opened it. He told me to wrap it around 
a brick and break it open and I said no.
He told me to give him my handkerchief* 
so I handed him my handkerchief and I 
went around on the side of the window* 
and went to knocking on there and started 
to holler again and I ran -- I went back 
to the car and waited until they came.

Q. While Shuler and Chatman stayed there 
you ran?

A. Yes.
q . You have Chatman you handkerchief?

A. Yes sir.
Q. Do you know what he wanted the 
handkerchief for?

A. No sir I didn't.
Q. But it was your understanding you were 
going there to rob that old woman, is that 
right?
A. That's right.
Q. So when you got back to the car* were
they back to the car when you got there?
A. No sir* I waited there about a half an^
hour _ I'll say about half an hour, something
like that —  I don't know* I didn't have no 
watch.
Q. Did they come back to the car after you 
waited about half an hour?
A. Yes sir they did, they came back to the 
car.
Q. What happened then?

-31-



A. They asked me why I chickened out and
ran and I said there was a house up on the
hill with the light on and I said I didn't 
want to be caught there. And we got in the 
car and pulled on off -- I asked them what 
they did -- they said she had broken out 
of the house, running, and they had to 
catch her and kill her. I asked them did 
they get any money. The said 'No, but we 
got IT.1
Q. Let me repeat that -- repeat what they 
told you, will you, so the jury can hear.

A. When they got back to the car they asked
me why did I chicken out and run and I told 
them there was a house up on the hill with 
a light in it. I didn't want to be caught 
around there. We got in the car and pulled 
on off. I asked them did they get any 
money. They said no, but they got 'it'.

Q. They got 'it'?
A. Yes. And I said if I'd a knowed that, 
I'd a stayed there.
Q. You said if you had knowed that, you 
would have stayed there?

A. Yes,sir.
Q. They said they got 'it', do you know 
what they meant when they said they got 'it'?

MR. RODRIGUEZ: Objection, Your Honor.

MR. OLDHAM: I just asked him if he knew.

THE COURT: Objection sustained,”

(TT 221-225)
Levi Summers next identified State's exhibit 19 as his 

handkerchief, being the one he gave to Chatman at the 

crime scene. The handkerchief contained a monogram, 

the initial "L" on it, just like all other of Levis'

-32-



handkerchiefs. When Levi Summers gave Chatman the 

handkerchief that night, it had no blood on it.

On cross-examination Levi testified he heard a 

woman scream from inside the house on both occasions 

that they had approached Miss Charlotte Wass' home that 

evening. (TT 254)

The second witness called by the State (TT 233-238) 

was Mr. Leon B. Smith, a neighbor of Miss Wass, who testified 

Miss Wass was in her fiftys, white, unmarried, and lived 

about 1000 yards from his house. This witness described 

how Miss Wass had come to his house late on March 10, 

i960, seeking help. Mr. Smith described the battered, 

bloodied condition of Miss Wass, told how he contacted 

the Leesburg Police, and said Officers Spence and Perry 
and Sumner arrived to help Miss Wass and investigate 

the problem.

Leesburg Police Officer Ralph Perry was the State's 

third witness,(TT 238-251). Officer Perry explained he 

had received Mr. Smith's call for assistance, had gone with 

Officers Sumner and Spence to the Smith residence, and 

described in his testimony what occurred after they arrived 

at the Smith home and found Miss Wass lying on the kitchen 
floor in a pool of freshly flowing blood.(TT 24l) While 

Officer Spence put Miss Wass inside the police cruiser, 

Officers Perry and Sumner walked over to Miss Wass' home,

-33-



observed the screen door lying on the ground, and saw 

where the main door had a bottom glass panel which was 

busted out.
Officer Perry was shown a photograph of the house and

nearby chicken coop, and was asked to identify whether it

depected the conditions he observed that night.

"A. It shows a chicken house on the 
east side of the house and of course 
there were tracks all around the place 
there, some running tracks and other )( 
tracks around the doors and the windows.

(TT 244)
When Officer Spence drove up with Miss Wass Officer Perry

confirmed it was her home they were at,
"And we left her sitting in the deputy's 
car -- she was in no condition to be on 
her feet —  and we walked over and took 
a quick look at the building. We saw 
the tracks around the place -- we saw 
the door lying on the ground -- we saw 
the front door glass knocked out. At 
that time I told Mr. Spence, 'We had 
better get her to the hospital.'"

(TT 245-246)
Officer Perry then drove Miss Wass to the hospital, 

while officers Sumner and Spence stayed to preserve the 

crime scene. Officer Perry turned Miss Wass over to two 

nurses in the emergency room of a Leesburg hospital -- 

Mrs. Martin and Mrs. Carroll.
Mrs. Margaret Carroll, a nurse at the hospital where 

Miss Wass was delivered, testified she had received Miss 

Wass in the emergency room of the hospital. She described

-34-



how, before the doctor arrived, she had accompanied Miss 

Wass to the bathroom, at which time she observed Miss Wass 

was bleeding from her female organs. Also Nurse Carrol 

observed that Miss Wass' bloody pants were torn.(TT 264-268) 

Nurse Essie Merle Martin also testified that she 

received Miss Wass that night, briefly describing the 

bloodied and bruised conditions of Miss Wass1 head, face, 

arms and legs.(TT 262-263)
Dr. George Erwin Engelhard, M.D., treated Miss Wass 

in the emergency room and later while she remained as a 

patient at the hospital, (TT 252-261). Dr. Engelhard 

described the scalp laceration on Miss Wass' head, which 

was bleeding and had penetrated to the skull itself, as 

being dull and angular, the type wound such as results 

from being struck by a gun butt. Dr. Engelhard also told 

of neck bruises, said, "along the left side of her chest 

was one continual bruise," and observed that this bruise 

could have been caused by being kicked or beaten with a 

fist.
"Q. Did you examine the private female 
parts of her body?

A. I did.
Q,. Will you state to the gentlemen 
of the jury the development of this woman 
insofar as the female organs were con­
cerned, and the entrance thereto?

A. The development of this woman indicated 
that she had never been pregnant, had never 
borne a child, and was very very small -- 
either never having had any or much inter­

-35-



course^ or else had begun to gradually 
close up, because of being past the 
menopause. The top of her womb was not 
bleeding -- no blood coming from the 
womb itself, and that it showed no 
evidence of ever having been pregnant. 
Going into the vagina the wound —  you 
have got to realize in the vagina, in 
the back part of it toward the rectum 
there was a split which was still 
bleeding at that time and it was a 
couple of inches long -- no, it wasn't 
that long -- I have got that pretty 
much written down here -- about an inch 
long and about three-quarters of an inch 
deep -- deep, I mean backwards toward 
the rectum.

Q. In other words, there was a wound 
at the entrance of her female organs?

A. That's right.

Q. How many inches long?

A. About one inch long.

Q. Where it had been split, is that 
right?

A. That's right.

Q. And was bleeding profusely?

A. At that time, yes.

Q. Doctor, did you have occasion to 
examine the interior of her vagina for 
male sperm?

A. Yes sir.
Q. Did you find any male sperm at that 
time in the inside of her vagina?

A. I took the smear myself directly to 
the laboratory and there was sperm present.

Q. Was the sperm live or dead?

A. Moving, very mobile, yes.

Q. They were alive?

-36-



Q. Was there a lot of male sperm or was 
there a very small amount, doctor?

A. There was a —  there was a moderate 
amount in the specimen that I took.

Q. From the appearance of the womb and 
the sperm taken from her and the condition 
of the female parts of her body, would 
you say in your opinion she had recently 
been attacked?

A. Yes sir."

(TT 256-257)
On cross-examination Dr. Engelhard denied defense 

counsel's suggestion that Miss Wass' wounds were simply 

."bloody but superficial." Dr. Engelhard pointed out that 

the blows to the victim's side had resulted in cracked 

ribs, that hard blows to her cheeks had caused teeth to 

penetrate her cheeks, and that the blow upon her lead 

was so hard it actually exposed her skull so you could 

see it. (TT 260)
Deputy Sheriff Joseph Henry Spence testified for the 

State, telling how he and Deputy Sumner and Leesburg 

Police Officer Perry had answered the summons by Mr. 

Smith. He confirmed Officer Perry's testimony describing 

Miss Wass' condition when they found her on the Smith's 

kitchen floor in a pool of blood. Then Deputy Spence 

described his observations at the crime scene after 

Officer Perry drove off to the hospital with Miss Wass.

A. Yes.

-37~



"Q. What was the condition of the inside 
of Miss Wass1 house when you went in there 
that night?

A. Everything in the house was just turned 
upside down -- in other words, looked like 
whoever had been in there had just pilfered 
and emptied out the suitcases and dresser 
drawers and everything was just scattered 
all over the floor."

(TT 271)
Deputy Spence also testified that Deputies Ledford and 

Griffin later came together to the crime scene. /Recall 

that those were the two deputies who, after being discharged 

from the Sheriff's Office, were to testify there were only 

three partial prints at the scene.7

"Q. Now what did you observe Mr. Griffin 
and Mr. Ledford do while you remained there?

A. Well there was tracks around the house, 
so we put the dogs on the tracks that led -- 
that was around the windows, and the entrance 
in the front of the house, and over on the 
east side, and there was tracks that led from 
the house -- we put the dogs on the tracks 
and the dogs followed the tracks. The one 
dog that we put on the track was Red, and 
Mr. Griffin was leading Red. In other words, 
he was holding Red on the trail.

Q. What was Mr. Ledford doing?

A. He was following Mr. Griffin.

Q. All right, so you observed Mr. Griffin 
place the bloodhounds on the tracks that 
led away from the house, is that correct?

A. Yes sir.

Q. Did you see the bloodhound leave?

A. I did.

Q. Did you see them leave with it?

-38-



Q. Did you have occasion to go to the home,' 
later that night, of the defendant Shuler and 
the defendant -- the Defendant Shuler and Summers?
A. I did.

Q. And who went there with you.?.

A. Deputy Griffin and Deputy Ledford.

Q. What happened when you arrived there?

A. When I arrived at Shuler's and Summer's 
home, they were staying with L.C. Cleary. The 
dog had trailed the tracks into the back of 
L.C. Cleary's home, so I went to the front 
door and knocked on the door and L.C. came to 
the door and I asked him if Levi and Robert 
was home and he said they was, and I told 
him I would like to see them and talk to them, 
so he opened the door and told me to come in 
and I went in and went through to the back 
door and Mr. Ledford and Mr. Griffin was at 
the back door with the bloodhounds. I opened 
the back door and let them in and the blood­
hound -- they brought the bloodhound on in and 
he went to the room where Robert Shuler was 
sleeping and the dog went in there and smelled 
of Robert, then he went into the room where 
Levi Summers was sleeping and he smelled of 
Levi, and then we arrested Levi and Robert 
Shuler for investigation of assault and 
breaking and entering in Miss Wass's home down 
there."

(TT 272-274)
Deputy Spence then explained how he placed Shuler and 

Summers in jail, and later returned to the Cleary home 

to search with Mr. Cleary's consent, resulting in a bloody 

pair of shorts being found in Shuler's room. /The testimony 

relates to State's exhibit 15 and does not indicate whether 

reference is to regular short-pants or to undershorts_/7(TT 275).

A. Yes I did.

-39-



Defense counsel objected to their introduction in evidence 

on grounds of irrelevancy, making no mention of an alleged 

unconstitutional search, and the objection was overruled, 

(TT 275-276).
Deputy Spence also explained how Chatman was arrested 

the following evening while attending a movie in down­

town Leesburg. The day following Chatman's arrest Deputy 

Spence went to Chatman's wife and she gave him a pair of 

khaki pants and shorts which were the clothes her husband 

wore on March 10, i960, and she gave him a gun. These 

itmes were introduced in evidence without objection that 

they were the product of an unlawful search.

On cross-examination defense counsel asked Deputy 

Spence to explain how Deputies Ledford and Griffin put 

two bloodhounds onto the tracks which led to Shuler and 

Summers' house.
"A. Well, around where Miss Wass lives is 
soft sand and there was a lot of tracks around 
the house and there was some tracks leading 
away from the house, so we taken the dogs to 
the tracks and put them on the tracks around the 
house.
Q. No — ■ actually putting them on, how do 
you put them on?
A. We have them in a trailer and we haul them 
up to the scene. We take them out of the 
trailer and then one of the deputies that 
runs the dog -- they have a leash that the put 
on the dog and take them to the track and put 
him on the track.
Q. In other words, you are standing right 
over the place.

-40-



A. We take him up there around the tracks 
that!s around the house.

Q. How long do you hold him around there?

A. Oh not long, just let him smell around 
and then put him on the tracks, just lead 
him away and he is gone --h e  will follow 
the tracks that lead away.

Q. Now there were more than two sets of 
tracks around there weren't there?

A. There was a lot of tracks around the 
house, around the windows and the front 
door and the back door, because the 
screen door was torn down.

Q. And before you put them on the tracks, 
there were tracks of other police officers 
who had been there, is that correct?

A. Oh no. There's no policeman had been 
up there. They had been preserved and no 
one had been around the tracks until I put 
the dogs on the tracks.

Q. You had never walked anywhere near the 
tracks ?

A. I would not go around the house until 
they got the dogs and put them on the tracks.
I would not let anyone else go around there.
Q. I have reference to the tracks outside.
You say you never went around them, never 
went near them?
A. Oh, I would go up to where I could see 
them, but I would not walk in there where I 
would be interfering with them."

(TT 280-281)
The following witness for the State was Deputy Griffin. 

He was asked how he put "Red" the bloodhound onto the 

track going to Shuler and Summers' house.

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"Q. Well when you arrived there, what did 
you and Deputy Sheriff Ledford do?
A. We unloaded Red. We used Red instead 
of the other dog, and put the harness on 
and put him on a running track around the 
nortTTof the house -- the north corner of 
the "house. " ’ ~

(TT 285) (emphasis added)

He described how the bloodhounds went to the front door

of the Cleary house, and what occurred when the dogs

were permitted inside.
"A. The first dog went into a bedroom on 
the left where L.C. Cleary and his wife were 
sleeping and in there he smelled around and 
then went down the hall to another bedroom to 
the left, smelled around, still hunting.
Then he went down the hall again to the 
bedroom on the left, there he smelled 
Summers and then he quit hunting, he was 
satisfied."

(TT 287)
Deputy Ledford testified next, explaining he and Griffin 

used two bloodhounds to follow tracks away from Miss Wass' 

house. Also he acknowledged footprints were at the scene, 

describing how he covered some to protect them, which 

prints were later poured by someone else when he was 

not present. (TT 29O-29I)
The next witness for the State was Deputy James L. 

Yates, who poured the tracks covered by Deputy Ledford 

and poured other tracks as well, (TT 291-292). He also 

poured a track out on the road by the Wass house. 

/Presumedly the dirt on the road could have varied 

considerably from that in Miss Wass' back yard/7

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"A. Then I went in the house to see -- took 
some pictures in the house and took pictures 
outside of the house and these tracks that 
I poured went out to the chicken house, out 
to the east side of the house. I found a 
place on the ground out there, a scuffled 
tore-up place, and there was two handker­
chiefs there together on the ground, blood­
stained. One was a monogrammed handkerchief 
and one was a plain handkerchief, and --

Q. Speak up, please.

A. Then after that, why, I just — • I went 
over to L.C. Cleary's house, the grandfather 
of Robert Shuler, and there I asked him 
could I go in the house and look at any shoes 
or clothes that either Robert Shuler or Levi 
Summers had there, and he said yes, and I 
went in there with L. C. Cleary and found five 
monogrammed handkerchiefs that matched the 
one I found over there at the Wass house.

MR. OLDHAM: May we stop right here now,
Mr. Yates -- Mr. Yates, I had you State 
Exhibit No. 19 for identification and ask 
you to examine it and tell me if you have 
ever seen it before?

A. This is the monogrammed handkerchief 
I picked up at the scene of the crime.

Q. Is the handkerchief the same as it was 
at the time you picked it up at the scene 
of the crime?

A. Yes sir."

(TT 292-293)

State's exhibit 19 was the same monogrammed handkerchief 

identified by Levi Summers as the one he gave to Chatman 

at the crime scene. When Deputy Yates picked up this 

handkerchief, it was bloody, (TT 294).

Deputy Yates also described scuffle marks on the 

ground where the handkerchief was found, (TT 294).

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Deputy Yates also explained how, because of the sand, 

many of the tracks at the crime scene were useless, 

but he found six good ones which he poured, (TT 297-300). 

Each of the six prints were poured near a window, door, or 

porch of the house. /Places where the three youths doubt­

less would have stood motionless, giving good prints unlike 

those produced when one walks or runs.7

Deputy Yates testified, and explained to the jurors 

the basis for, his opinion the shoes belonging to Shuler, 

Chatman and Summer matched the plaster casts.

Other witnesses were called by the State to establish 

chain of custody and possession of various items such as 

shorts, pants, shirts, etc., taken from Shuler and Chatman 

at time of their arrest, and then James M. Halligan, Jr.,

was called to the stand.

James Halligan was a micro-analysist with the Florida

Sheriff's Bureau. He had micro-analized the gun which

Mrs. Chatman had given to police officers.

"A. I examined the weapon to determine 
whether or not there was any evidence that 
this had been used as a bludgeon. I noted 
to be present some reddish brown material to 
be present between the grips and the frame 
of the weapon around the trigger guard, around 
the cylinder of the weapon, and the lower 
three chambers. I tested this reddish brown 
material and identified it as human blood.
I also noted as I was removing the grips to 
get the material from the weapon to conduct 
my tests, a broken piece fell loose from the 
bottom of the butt of the plate here. I have 
that piece. It would not stay in place after

_2+4-



that, so I placed it into a glass file which 
is now Scotch-taped with the weapon here on 
the handle.

Q. So according to your testimony, sir,
State Exhibit No. 13 had human blood on it?

A. That is correct."

(TT 236)

Witness Halligan also established the presence of human 

blood and sperm on the shorts found under Shuler's bed, 

and upon shorts belonging to Chatman, (TT 326-328). 
Likewise, he determined existance of blood on trousers of 

Jerry Chatman's, and blood and semen on Robert Shuler's 

shorts taken from his person when arrested, (TT 328-329).

State's exhibit 19 -- Levi Summers monogrammed 

handkerchief -- contained human blood, but no semen,

(TT 329-330).
Finally, the expert micro-analyst identified the 

presence of blood and semen upon various articles of 

clothing removed from Miss Wass when she was delivered 

to the hospital emergency room -- items such as her 

housecoat, bra, slip and underpants, (TT 330-336).

The remaining trial testimony related primarily to 

the authenticity and voluntariness of Shuler and Chatman's 

transcribed confessions, given to an outside representative 
of the Florida Sheriff's Bureau, not to the Lake County 

Sheriff's Department. The independently given confessions 

are in this Court's record. They are in conflict only



to the extent that Shuler portrays Chatman as the moving 

force in bringing the rape about; Chatman describes Shuler 

as the initiating party. Otherwise, the confessions 

provide a stunningly persuasive confirmation of the 

circumstantial evidence concerning the existance of broken 

doors and torn-down screens, location of footprints, 

presents of bloody handkerchiefs, location of scuffle 

marks, and agreement with events described by Levi 

Summers' testimony. The State of Florida will not further 

belabor the point here, but refers the Court to a reading 

of the confessions.

It is to be noted that one of the several witnesses 

called to establish the authenticity and voluntariness of 

Shuler's and Chatman's sepearate confession transcripts, 

was Miss Joan Tobey who was the court reporter who made 

the recordings and transcripts. This is the same Joan 

Tobey who recorded and transcribed Miss Wass's hospital-bed 

statement which the State supposedly suppressed. So again, 

while Miss Tobey was on the stand, defense counsel had yet 

another opportunity to determine the existance of any 

other transcribed statements made in the investigation 

of this case.
To summarize the State of Florida's argument concerning 

the "suppressed1’ statement of the prosecutrix, the State 

first contends no improper suppression whatsoever occurred 

because the evidence was available to defense counsel.

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Second, the record clearly reflects that the transcribed 

statement is so confused and conflicting that it is of 

no probative value either for or against Shuler and Chatman, 

which fact is further established by the doctor's testimony 

the prosecutrix was mentally incompetent when she made 

the statement. Third, the overwhelmingly conclusive nature 

of the trial evidence proving Shuler and Chatman's guilt 

reveals that ommission of the exculpatory statement from 

evidence was a harmless error beyond a reasonable doubt. 

Chapman v. California, 386 U.S 18,(1967). The self-con­
tradictory and confused statement of the prosectrix, to 

the extent it was exculpatory, would not have led any 

jury to entertain a reasonable doubt as to Shuler and 

Chatman's guilt. Jackson v, Wainwright (5th Cir. 1968)

390 F.2d 288. The Federal judge below erred reversibly 

in determining to the contrary.



POINT III

WHETHER THE U.S. DISTRICT COURT 
ERRED REVERSIBLY IN DETERMINING 
CERTAIN ITEMS INTRODUCED IN 
EVIDENCE AT TRIAL WERE THE 
PRODUCTS OF UNREASONABLE SEARCHES 
IN VIOLATION OF BOTH SHULER AND 
CHATMAN'S CONSTITUTIONAL RIGHTS 
THEREBY REQUIRING REVERSAL OF 
THEIR c o n v i c t i o n s :

Two searches are discussed under this final point 

on appeal: one being the "search*' of Chatman's house,

the other of Shuler's residents which he jointly occupied 

with State's witness Levi Summers. The State of Florida 

conceeds that this third ground for reversal is the most 

compelling ground advanced by the U.S. District judge in 

his "Opinion and Writ of Habeas Corpus." The State of 

Florida, however, finds certain elements of the lower 

Federal Court's opinion very objectionable, and the 

State suggests a reversal of Shuler and Chatman's convictions 

actually is not warranted by the evidentiary items determined 

to have been improperly admitted in the Federal District 

judge's decision on this final point.

The Federal judge below says:

"Although the State has never explicitly 
claimed that Shuler was wearing more than 
one pair of undershorts at the time of 
the alleged crime, the record reflects 
that at least three and possibly four 
undershorts with blood on the fly were 
introduced at trial. It is not clear 
whether this evidences thorough and 
sifting investigation and trial pre­
paration by the sheriff's office and the 
prosecuting officials or whether it 
evidences some medical problem of Shuler's ."

(Opinion and Writ of Habeas Corpus, 15)

-48-



Apparently the judge was not able to distinguish between 

shorts taken from under Shuler’s bed, shorts taken from 

his person when arrested within hours of the crime, and 

shorts worn by Chatman rather than Shuler. The State of 

Florida suggests this comment clearly implies a serious 

misdeed -- indeed, a stupid and bumbling effort to 

manufacture evidence -- by the prosecuting officials in 

State court. The comment is a gross unfairness which 

should be expunged and corrected.

The State of Florida also suggests the Federal court 

below erred in determining Chatman's clothes and gun, 

given to police by Chatman's wife, should be considered 

the product of a "search” -- reasonable or otherwise.

What "search” took place? The wife simply turned over 

items in her custody.
Furthermore, the bloody shorts taken from Shuler's 

person when arrested certainly did not result of an un­

reasonable search. No authority needs even be cited for 

the obvious proposition that police may seize evidence 

from the accused's body when he is arrested on a felony 

charge.
If the lower court is overly concerned that blood 

was on two pairs of undershorts owned by Shuler, perhaps 

the court should be reminded it is not unreasonable to 

assume Shuler simply changed his clothes after committing



the crime, without cleaning himself first. Likewise, 

he well could have injured himself when attacking Miss 

Wass there on the ground while she struggled -- perhaps 

he did have a "medical problem" as a result of his 

criminal conduct.

Once again the State would strenuously suggest to 

this reviewing court that any items improperly admitted in 

evidence as determined by the Federal court below, were a 

harmless error. Other competent trial evidence nonetheless 

irrefutably established the guilt of Shuler and Chatman.

Matters concerning the admissibility of evidence are 

not to be considered in a Federal habeas corpus proceeding 

unless the record indicates the petitioners were denied due 

process of law. Pleas v. Wainwright (5th Cir. 1971) ^41 

F.2d 56; Alligood v. Wainwright, (5th Cir. 1971) 440 F.2d 
6H2. The record in this case clearly shows that Shuler 

and Chatman were accorded complete due process of law. The 

State fairly and conclusively proved their guilt of rape 

beyond a reasonable doubt.
The "Opinion and Writ of Habeas Corpus" here appealed 

should be reversed and the convictions of Shuler and Chatman 

should be reinstated.
Respectfully submitted,

GORDON G. OLDHAM, JR,
State Attorney
Fifth Judicial Circuit of Florida
107 North Fourth Street
Leesburg, Florida 327^8

Counsel for Appellant

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing

Brief of Appellant has been furnished by mail this // 

day of 1972 to Honorable Tobias Simon, 223 Southeast

First Street, Miami, Florida, 33131> Honorable Anthony 

G. Amsterdam, Stanford University Law School, Stanford, 

California, and Honorables Jack Greenberg, Charles S. 

Ralston, Jack Himmelstein, 10 Columbus Circle, New York, 

New York.

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‘  H i