Barclay v. Florida Brief for Petitioner

    No. 81-6908

I n  t h e

i$uprrmr ( ta r t  of tfyr Mnttrii Stairs
O ctober  T e r m , 1982

E lwood C . B arclay, 

—against— 

S tate oe F lorida ,

Petitioner,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA

BRIEF FOR PETITIONER

K e n n e t h  V ic k er s
437 East Monroe Street 
Jacksonville, Florida 32202

J ack  G reenberg  
J am es M. N abrit , III 
J oel B erger 
J o h n  C h a rles  B oger 
D eborah  F in s *
J am es S. L ieb m a n  

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

A nthony '  G. A msterdam  
New York University 
School of Law
40 Washington Square South 
New York, New York 10012

Attorneys for Petitioner 

* Attorney of Record



(i)

QUESTIONS PRESENTED

(1) Whether a death sentence, imposed over 
a jury recommendation of life, v i o ­
l a tes the E i g h t h  and F o u r t e e n t h  
A m e n d m e n t s  when it is bas e d  upon 
a trial j u d g e ' s  f i n d i n g s  of (a) 

factors not included in the roster 
of s t a t u t o r y  a g g r a v a t i n g  c i r c u m ­
stances; (b) factors found only by 
distorting the statutory aggravating 
circumstances beyond recognition; and 
(c) factors freighted with emotions 

arising from the judge's prior exper­
iences, extraneous to the circum­
stances of the crime or the character 

of the defendant?
(2) W h e t h e r  a ’dea t h  s e n t e n c e  i m p o s e d  

through such an arbitrary process can 
nonetheless be executed because the



(ii)

trial judge may additionally have 
found one or more properly applicable 

statutory aggravating factors?



(iii)

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ................. i
TABLE OF AUTHORITIES ...............  vi
OPINIONS BELOW ....................... 1
JURISDICTION .........................  2

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .............. . . 3
STATEMENT OF THE CASE ..............  4
SUMMARY OF ARGUMENT ................. 24
ARGUMENT .............................. 27
I. BARCLAY'S DEATH SENTENCE WAS 

THE PRODUCT OF A CAPRICIOUS 
SENTENCING PROCESS, FLOUTING 
THE SAFEGUARDS WHICH PROFFITT 
RELIED UPON TO ASSURE AGAINST 
ARBITRARINESS IN DEALING OUT 
THE DEATH PENALTY .............  27
A. Barclay's Death Sentence 

Rests Preponderately Upon 
Lawless Findings and 
Considerations Not 
Channelled By The Florida 
Capital Sentencing
Statute .....................  27
1. Findings of nonstatutory 

aggravating cir­
cumstances ................. 29



IV
Page

a. Prior criminal
activity .................. 29

b. "Under sentence of im­
prisonment" and pre­
vious conviction of
a violent felony .......... 32

2. Lawless findings of statu­
tory aggravating cir­
cumstances ................. 33

a. Under sentence of im­
prisonment .................  33

b. Previous conviction of
a violent felony .......... 36

c. Great risk of death
to many persons ........... 40

d. Murder committed during a
kidnapping ................. 48

e. Murder committed to disrupt
a governmental function, and 
"especially heinous, atro­
cious or cruel" ........... 51

3. An additional nonstatutory 
aggravating circumstance, 
and its relationship to 
Judge Olliff's personal 
experience ................. 58

B. A Sentencing Process So 
Lawless as The One Which 
Condemned Barclay To Die 
Violates the Eighth and 
Fourteenth Amendments .......  63



- V

Page

II. THE UNCONSTITUTIONAL PROCESS
THAT PRODUCED BARCLAY'S DEATH
SENTENCE REQUIRES ITS
REVERSAL .........................  83
A. The "Elledge rules" ...... 84
B. Nonarbitrary Application

Of The First Elledge Rule 
Requires the Vacation of 
Barclay's Death Sen­
tence ....................... 87

C. Application Of The Second
Elledge Rule To Salvage 
Barclay's Death Sentence 
Would Itself Be Federally 
Unconstitutional .........  94

CONCLUSION ...........................  106
APPENDIX ...............................  1a



VI

TABLE OF AUTHORITIES

CASES:
Page

Adams v. State, 412 So. 2d 850
(Fla. 1982) ............................  53
Alvord v. State, 322 So. 2d 533
(Fla. 1 975) ......      43
Antone v. State, 382 So. 2d 1205
(Fla. 1 980) ................    52
Bachellar v. Maryland, 397 U.S. 564
(1970) ................................... 102
Barclay v. State, 343 So. 2d 1266
(Fla. 1977) ............................  passim
Barclay v. State, 362 So. 2d 657
(Fla. 1 978)      2
Barclay v. State, 411 So. 2d 1310
(Fla. 1981) ............................. 2,23
Barr v. City of Columbia, 378 U.S.
146 (1 964) ........   93
Beck v. Alabama, 447 U.S. 625 
( 1980) .................    103

Bell v. Watkins, ___  F.2d ___ ,
No. 81-4358 (5th Cir. Dec. 6,
1982) ...................   72
Blair v. State, 406 So. 2d 1103
(Fla. 1981) ....................... 40,51,76,85



Vll

Bolender v. State, So. 2d ,
1982 Fla. Law Wkly, SCO 490
(No. 59,333) (Oct. 28, 1982) .....
Brown v. State, 381 So. 2d 690 
(Fla. 1980) .........................

Carnes v. State, No. 74-2024, 
74-2131, Cir. Ct., 4th Jud. Cir., 
Duval Cty, Fla. (Nov. 19, 1974) ..
Clark v. State, 379 So. 2d 97 (Fla 
1 979) ................................

Cooper v. State, 336 So.2d 1133 
(Fla. 1976) .........................
Cramer v. United States, 325 U.S. 
(1945) ...............................

Demps v. State, 395 So. 2d 501 
(Fla. 1982) .........................
Dobbert v. Florida, 432 U.S. 282 
(1977) ...............................

Dobbert v. State, 375 So. 2d 1069 
(Fla. 1979) .........................
Dougan v. State, 398 So. 2d 439 
(Fla. 1981) .........................
Eddings v. Oklahoma, 455 U.S. 104 
( 1982) ..............................

Elledge v. State, 346 So. 2d 998 
(Fla. 1977) .........................
Enmund v. Florida, U.S. , 73 
L .Ed.2d 1140 (1982) ...............

Page

.. passim 

41 ,76,85

passim 

52 

71 ,93 

102 

56 

57,61 

passim 

35,39,57 

63,94,105 

passim 

97



V1X1

Page

Enmund v. State, 399 So.2d 1362
(Fla. 1981) ..............    97
Ferguson v. State, 417 So. 2d 639
(Fla. 1 982) ...........................   41,51

Ferguson v. State, 417 So. 2d
631 (Fla. 1 982) ........................  34
Fleming v. State, 374 So. 2d 954
(Fla. 1 979) ............................. 85
Ford v. State, 374 So. 2d 496 (Fla.
1979) ....................................  passim
Francois v. State, 407 So. 2d 885
(Fla. 1981) ............................. 51
Furman v. Georgia, 408 U.S. 238 
( 1972) ......................    24,69,70,81
Gardner v. Florida, 430 U.S. 349
(1977) .................................  2,21,62
Gardner v. State, 313 So. 2d 675
(Fla. 1 975) ............................. 53
Gilvin v. State, 418 So. 2d 996
(Fla. 1 982) ............................. 51,56
Godfrey v. Georgia, 446 U.S. 420
(1980) .......................    passim
Gregg v. Georgia, 428 U.S. 153
(1976) .....    passim
Gregory v. Chicago, 394 U.S. 111 
( 1 969) .....        102



- IX

Page

Halliwell v. State, 323 So. 2d 557
(Fla. 1 975) ...........................  56
Hargrave v. State, 366 So. 2d 1
(Fla. 1 978) ............................. 86
Harris v. Pulley, ___  F.2d ___ ,
No. 82-5246 (9th Cir. Sept. 16,
1982) .................................... 73
Harvard v. State, 414 So. 2d 1032
(Fla. 1 982) ............................  54
Henry v. Wainwright, 661 F.2d 56
(5th Cir. 1 981 ) ........................ 72,106
Hitchcock v. State, 413 So. 2d 741
(Fla. 1 982) .................    53

Holmes v. State, 374 So. 2d 944
(Fla. 1 979) ............................. 52
Hopper v. Evans, U.S. , 72
L . Ed. 2d 368 (1982) ......................  65
Huckaby v. State, 343 So. 2d 29
(Fla. 1 977) ............................. 42,77
In re Florida Rules of Criminal 
Procedure, 343 So. 2d 1247 (Fla.
1977) .........   76

Jackson v. State, 366 So. 2d 752
(Fla. 1 978) ............................  91
Jacobs v. State, 396 So. 2d 713
(Fla. 1981) ............................. 41,52
Johnson v. State, 393 So. 2d 1069
(Fla. 1980) .........   41,55,93,95



- x -
Page

Jones v. State, 411 So. 2d 165
(Fla. 1 982) .................... ........ 51
Jordan v. Watkins, 681 F .2d 1067
(5th Cir. 1 982) ........................  72
Kampff v. State, 371 So. 2d 1007
(Fla. 1979) ....................... 40,41,54

Lewis v. State, 398 So. 2d 432
(Fla. 1981) ...................   P assim
Lewis v. State, 377 So. 2d 640
(Fla. 1979) ..........    41,56,85

Lockett v. Ohio, 438 U.S. 586
(1978) ................................... P assim
Lucas v. State, 376 So. 2d 1149
(Fla. 1 979) ........    42,76,85
Maggard v. State, 399 So.2d 973
(Fla. 1981) ............................ 29
Mann v. State, 420 So. 2d 578
(Fla. 1 982) ............................  37
McCampbell v. State, ___  So. 2d

, 1982 Fla. Law Wkly, SCO 492 
jNo. 57,026) (Oct. 28, 1 982) .......... 76
McCaskill & Williams v. State, 344
So. 2d 1276 (Fla. 1 977) ..............  43
McCray v. State, 416 So. 2d 804
(Fla. 1 982) ............................  55



XI

Page

Meeks v. State, 339 So. 2d 186
(Fla. 1976) ............................  52,91
Meeks v. State, 336 So. 2d 1142
(Fla. 1 976) ............................  52

Menendez v. State, 368 So. 2d 1278
(Fla. 1979) ............................ passim
Messer v. State, 403 So. 2d 341
(Fla. 1981) ............................ 90
Mikenas v. State, 367 So. 2d 606
(Fla. 1978) ...................... 30,43,77,86
Miller v. State, 373 So. 2d 882
(Fla. 1 979) ............................ 76
Mines v. State, 390 So. 2d 332
(Fla. 1 980) ............................ 42
Moody v. State, 418 So. 2d 989
(Fla. 1982) .........................  79,85,96
N.A.A.C.P. v. Alabama ex rel.
Patterson, 357 U.S. 449 (1958) ......  94
Odom v. State, 403 So. 2d 936 (Fla.
1981) .................................... 40,76

Peek v. State, 395 So. 2d 492 (Fla.
1981) .................................... 34
Perry v. State, 395 So. 2d 170
(Fla. 1 980) ...........................  76
Proffitt v. Florida, 428 U.S. 242
(1976) ..................................  passim



-  X l l  -

Page

Proffitt v. State, 315 So. 2d 461
(Fla. 1 975) ..........................  43,77
Proffitt v. Wainwright, 685 F.2d
1227 ( 1 1th Cir. 1 982) ................. 72
Provence v. State, 337 So. 2d 783
(Fla. 1976) ..........................  31,77,78

Purdy v. State, 343 So. 2d 4 (Fla.
1977) .................................... 77
Raulerson v. State, 358 So. 2d 826
(Fla. 1 978) .............................  52
Riley v. State, 366 So. 2d 19 (Fla.
1978) .................................... passim
Roberts v. Louisiana, 431 U.S 633
(1 977) ...............    80
Roberts v. Louisiana, 428 U.S.
325 ( 1976) .............................. 80
Salvatore v. State, 366 So. 2d 745
(Fla. 1 978) ............................  91
Sandstrom v. Montana, 442 U.S. 510
(Fla. 1 979) ............................  102

Sawyer v. State, 313 So. 2d 680
(Fla. 1 975) ...........   75
Schware v. Board of Bar Examiners,
353 U.S. 232 (1957) ..............    74
Simmons v. State, 419 So. 2d 316
(Fla. 1 982) ............................  56



X l l l

Page

Slater v. State, 316 So. 2d 539
(Fla. 1 975) ............................  43
Smith v. North Carolina, ___  U.S.

, 51 U.S.L.W. 3418 (U.S.,
Nov. 29, 1982) ........................ 98

Smith v. State, 365 So. 2d 704 
(Fla. 1978) ........................... 91

Smith v. State, 407 So. 2d 894 
(Fla. 1981) ........................... 51

Songer v. State, 365 So. 2d 696 
(Fla. 1978) ........................ 52,71,93

Spaziano v. State, 393 So. 2d 1119 
(Fla. 1981) ........................... . 38,76

State v. Bartholomew, P.2d , 
No. 48346-9 (Sup. Ct. Wash. Nov. 24, 
1 982) ......... ........................ 72

State v. Dixon, 283 So. 2d 1 (Fla. 
1973) ................................. 53,55,71

Street v. New York, 394 U.S. 576 
(1969) ................................. 102,104

Stromberg v. California, 283 U.S.
359 ( 1 931 ) .................... 102,103 ,104,105

Tafero v. State, 403 So. 2d 355 
(Fla. 1981) .......................... 42,52,91

Tedder v. State, 322 So. 2d 908 
(Fla. 1975) ........................... . 56,57



xiv -

Page

Terminiello v. Chicago, 337 U.S. 1
(1 949) .................... .............. 102
Thomas v. Collins, 323 U.S. 516
(1945) .................................  102,104
Thompson v. State, 328 So. 2d 1
(Fla. 1 976) ............................. 77
Townsend v. Burke, 334 U.S. 736
(1 948) ................................... 107
Vaught v. State, 401 So. 2d 147
(Fla. 1 982) ...........     54,86
Washington v. State, 362 So. 2d 658
(Fla. 1 978) ............................. 43,52

Welty v. State, 402 So. 2d 1159
(Fla. 1981) ............................. 52

White v. State, 403 So. 2d 331
(Fla. 1981) ....................... 46,52,93,95
White v. State, 415 So. 2d 719
(Fla. 1 982) ............................. 52
Williams v. North Carolina, 317
U.S. 287 (1942) .......................... 102
Williams v. State, 386 So. 2d 538
(Fla. 1980) ............................. passim
Witherspoon v. Illinois, 391 U.S.
510 (1 968) .............................. 92
Woodson v. North Carolina, 428 U.S.
280 ( 1 976) .............................. 100



XV

Page

Yates v. United States, 354 U.S.
298 ( 1957) .............................  102
Yick Wo v. Hopkins, 118 U.S. 356 
(1886) ..................................  70

Zant v. Stephens, U.S. ,
72 L.Ed.2d 222 (1982) ........ 64,97,103,105
Zeigler v. State, 402 So. 2d 365
(Fla. 1 981) ............................. 52,85

STATUTES

Fla. R. Crim. Proc. 3.800 ............  76
Fla. Stat. §782.04 ....................  7,82
Fla. Stat. §921.141....................  passim
28 U.S.C. §1257 ........................  2



No. 81-6908

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1982

ELWOOD C. BARCLAY,
Petitioner,

against
STATE OF FLORIDA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
FLORIDA

BRIEF FOR PETITIONER

OPINIONS BELOW

The judgment and findings of fact en­
tered when petitioner was initially sentenced 
to die by the Circuit Court of Duval County, 
Florida are unreported and appear at J.A.



2

1-53. The initial opinion of the Supreme 
Court of Florida affirming petitioner's con­
viction of first degree murder and sentence 
of death by electrocution is reported in 
Barclay v. State, 343 So.2d 1266 (Fla. 1977);

J .A . 54-77.
The su bsequent order of the Supreme 

Court of Florida vacating the sentence of 
death and r e manding for res e n t e n c i n g  in 
light of Gardner v. Florida, 430 U.S. 349 
(1977), is reported in Barclay v. Sta t e , 
362 So.2d 657 (Fla. 1978); J.A. 78-81. The 
judgment and findings of fact on resentencing 
are unreported and appear at J.A. 82-141. The 
o p inion of the Supreme Court of Florida 
affirming the r e i m p o s i t i o n  of the death 
sentence is reported in Barclay v. State, 411 
So.2d 1310 (Fla. 1981); J.A. 142-45.

JURISDICTION
The jurisdiction of this Court rests upon 

28 U.S.C. §1257(3), the petitioner having as-



3

serted below and asserting here a deprivation 
of rights secured by the Constitution of the 
United States.

The judgment of the Supreme Court of
Florida was entered on June 4 , 1981. A
timely petition for rehearing was denied by 
that court on April 14, 1982. The petition
for certiorari was filed on June 16, 1 982
and granted on November 8, 1982. U. S .

f 51 U.S.L.W. 3362 (U.S., Nov. 8, 1 982 )
(No. 81-6908) .

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

This case involves the Eighth Amendment 
to the Constitution of the United States, 
which provides:

Excessive bail shall not be required, 
nor excessive fines imposed, nor cruel 
and unusual punis h m e n t s  inflicted;

and the Fourteenth Amendment to the Constitu­
tion of the United States, which provides, in 
pertinent part:



- 4

[N]or s h a l l  any S t a t e  d e p r i v e  any 
person of life, liberty, or property, 
without due process of law....
This case also involves the following

provisions of the statutes of the State of
Florida, which are set forth in the Appendix
to this brief: Fla. Stat. §§782.04, 921.141.

STATEMENT OF THE CASE 

1 . Introduction
On June 17, 1974, the dead body of eigh-

teen-year-old Stephen A. Orlando was dis­
covered on a dirt road in Jacksonville Beach, 
Florida. (T.T. 169 ) . —̂  The cause of death
was a bullet which entered the left ear.

V  References to the transcript of Barclay's trial, 
held in the Circuit Court of the Fourth Judicial Dis­
trict in and for Duval County, Florida, from February 
21, 1975, through March 4, 1975, are indicated by the 
abbreviation "T.T." followed by the number of the 
page(s) on which the reference may be found. The abbrev­
iation "V.T." refers to the transcript of the voir dire; 
"S.T." to the transcript of the separate penalty trial 
held on March 5, 1975; "R." to the record on appeal; 
"R.T." to the transcript of the resentencing hearing on 
June 23, 1979, October 23, 1979, and April 18, 1980; 
"A." to the Appendix to Petitioner's Brief; and "J.A." 
to the Joint Appendix.



5

(T.T. 126, 133). Orlando also sustained
another bullet wound in the cheek, and 
several superficial stab wounds. (T.T. 126).
A note was found under a small pocketknife 
lying on his stomach. (T.T. 317-18, 321,
324).—/ The note stated that "the revolution" 
had begun and that the "atrocities and brutal­
izing" of black people by the "oppressive 
state" would no longer go "unpunished." The 
note was signed "The Black Revolutionary Army. 
All power to the people." (J.A. 57; Barclay v . 
State, 343 So.2d 1 266 , 1 267 (Fla. 1 977 )).

Several days later Orlando's mother and 
local radio and television stations received 
cassette tapes in which the speakers declared 
that Orlando was the first victim in "the rev­
olution." (T.T. 157, 408-09, 1022). The
tapes contained diatribes against "white rac­
ist America," listed the historic grievances

2/ There is some evidence that the note may have been 
stuck to the body with the knife before it was found. 
(T.T. 324-25).



6

of black people, and compared the murder of 
Orlando to the lynchings and other murders of 
black people in America. (T.T. 1014-43). The 
tapes described Orlando's murder, claiming he 
had begged for mercy "just as black people did 
when you took them and hung them to the trees, 
burned their houses down, threw bombs in the 
same church that practices the same religion 
that you forced on these people, my people." 
(T.T. 1019-20). Each tape ended, "Your Black 
Liberation Army." (T.T. 1021, 1023, 1026, 
1031, 1042-43).

Three months later, five young black men, 
Jacob Dougan, Dwyne Crittendon, Brad Evans, 
William Hearn and petitioner Elwood Barclay, 
were arrested for Orlando's murder. All but 
Hearn were indicted for first degree murder by 
a grand jury for Duval County, Florida. (R. 
5). Hearn was charged by information with 
second degree murder and allowed to plead 
guilty to that offense in exchange for his



7

testimony against the other four. (T.T. 
1349). The four were tried together. The 
jury returned verdicts finding Crittendon and 
Evans guilty of murder in the second degree, 
and finding Barclay and Dougan guilty of mur­
der in the first degree. (T.T. 23 0 1 -02 )..=®/
After a penalty trial under Florida's bifur­
cated sentencing system, the jury recommended 
that Barclay be sentenced to life but Dougan 
be sentenced to death. (S.T. 179-80). The
trial judge refused to follow the jury's 
recommendation as to Barclay and sentenced 
both young men to death. (J.A. 52).
2. The Trial

a. The Guilt Trial
Hearn was the state's key witness at the 

trial. He testified that he knew the four 
defendants from a karate class they all 
attended taught by Dougan. (T.T. 1351). On

3/ The statute defining first degree murder, Fla. 
Stat. §782.04, is set forth in the Appendix to this 
brief, A. 1a-2a.



8

Sunday, June 16, 1974, Hearn was playing 
basketball with Crittendon, Evans and Barclay. 
(T.T. 1352-54). Dougan arrived and asked 
Hearn if he had his gun with him, because 
Dougan wanted "to go out and scare some 
people." (T.T. 1353). Dougan said he was 
willing to do it by himself, but that it would 
be better if they all went together. When 
Hearn asked what it was they were going to do, 
Dougan said he'd tell them later. (T.T. 
1354). He instructed them all to go home and 
change into dark clothes. (T.T. 1354-55).

The five young men met again at Barclay's 
house about an hour later, sometime around 
8:00 or 8:30 in the evening. (T.T. 1356). 
Hearn brought a .22 caliber automatic pistol 
with him, which he gave to Dougan. (T.T. 
1356, 1358). Barclay had a "small pocket- 
knife." (T.T. 1357). The five got into 
Hearn's two-door car with Hearn driving, Crit­
tendon in the front passenger seat, and the



9

rest in the back seat. Dougan told them he 
would instruct them on where to go and what to 
do. (T.T. 1358, 1381).

After driving for a short time, Dougan 
instructed Hearn to pull the car to the side 
of the road under a street light. Hearn did, 
and Dougan wrote out a note. Dougan read the 
note to the group and passed it around. Hearn 
asked again what they were going to do, and 
Dougan again replied he would tell them later. 
He told Hearn to drive on, and Heard did so. 
Dougan continued to direct the route until 
they arrived at a monument. There Dougan 
announced that they would "catch a white devil 
and kill him and leave the note on him." 
(T.T. 1359-61).

For the next couple of hours, the five 
drove around Jacksonville, looking unsuccess­
fully for an isolated person in an isolated 
area. (T.T. 1363-65). Finally the group 
headed to Jacksonville Beach, arriving about



10

10:30 p.m. There they saw Orlando, a young 
white man, hitchhiking by the side of the 
road. Hearn stopped the car, and Orlando 
entered the car and sat between Dougan and 
Evans in the back seat. (T.T. 1370). The car 
headed south toward the beach. Orlando told 
the group his name, and they each told him 
their names. Orlando asked them if they 
"smoked reefer" (marijuana). Dougan replied 
that they did, and asked Orlando if he had any 
with him. Orlando said he did not, but could 
get them some from a house on 12th Street. 
(T.T. 1370). When they got to 12th Street, 
Dougan told Hearn to drive past the street and 
keep going straight. Hearn did. (T.T. 1371). 
Dougan directed the route once again. A 
police car passed by, and Orlando said, "That 
pig sure is watching us close." Someone asked 
him if he disliked police officers, and he 
replied, "Well, my father's one." Dougan 
then told Orlando that he was taking him to 
meet a black girl who could give him some



drugs. (T.T. 1372). As they approached a
road, Dougan announced they were getting 
close to where the girl lived. (T.T. 1377).
They turned, then turned again down a dirt 
road into a wooded area. Dougan told Hearn 
to stop the car. He did. (T.T. 1 380).— /

Hearn opened the door on the driver's 
side and held his seat back but did not 
leave the car. Crittendon opened the door 
on the passenger side, got out, and held 
the seat back. Barclay got out on Hearn's

4/ The trial judge's original sentencing order stated 
that Orlando was driven to the scene of the homicide 
"[ajgainst his will and over his protest" (J.A. 9). 
This finding was quoted in the opinion of the Florida 
Supreme Court on Barclay's first appeal. (J.A. 56; 
Barclay v. State, supra, 343 So.2d at 1267). There is 
simply no evidence in the record to support such a 
finding, and the finding does not reappear in the second 
sentencing order (J.A. 82-141). The only evidence of 
Orlando's statements or actions during the car ride 
canes from Hearn's testimony at the trial (T.T. 1370- 
79), and the entire substance of those statements and 
actions has been described in our text above. The judge 
and the prosecutor agreed that Orlando had entered the 
car voluntarily (T.T. 1913), and the prosecutor acknowl­
edged during his closing argument to the jury that 
Orlando's first reaction of "protest" occurred after the 
car stopped and Dougan ordered Orlando to step outside. 
(T.T. 2026).



12

side, Dougan on Crittendon's . As Dougan got 
out he said, "This is it, sucker, get out." 
Orlando got out behind Dougan and broke to run. 
(T.T. 1381). Dougan hit Orlando in the back
with the gun. Barclay, who apparently had 
moved around the car, then grabbed Orlando. 
Evans got out of the car and stood behind 
Dougan; Orlando was standing between Dougan 
and Barclay. (T.T. 1384). Hearn watched from 
the front seat of the car, looking back over 
his shoulder at the group. (T.T. 1383). He
saw Dougan put his hand on Orlando's back and 
jerk it, throwing Orlando to the ground. Bar­
clay "started stabbing" Orlando, who offered 
to give them a "bag of reefer." (T.T. 1385). 
Barclay stabbed Orlando more than once, al­
though Hearn could not say how many times. 
Dougan told Barclay to move back, and then 
fired twice. (T.T. 1385). Dougan pulled the
gun up, shook it, and tried to fire again but 
the gun wouldn't go off. (T.T. 1386). Evans



13

moved up close, went down toward the body a 
couple of times, and then stood up with the 
note in his hand. Barclay took the note, went 
down toward the body with it, and then Evans, 
Dougan and Barclay returned to the front of 
the car. (T.T. 1 387). The car headed back
to Barclay's house. (T.T. 1388).

Hearn next saw the others on Tuesday 
at the karate class. Dougan told Hearn to 
bring his car the next day because there was 
going to be a meeting at the house of another 
member of the karate class, James Mattison. 
(T.T 1396). The next evening after the class 
ended, Hearn, Dougan, Crittendon, Evans, 
Barclay and three other students from the 
class (Otis Bess, Edred Black and James 
Mattison) met at Mattison's house. (T.T. 
1397). There Crittendon, Evans, Dougan and 
Barclay discussed the murder. Dougan had 
brought a tape recorder and he suggested 
that everyone present make tapes. No one 
disagreed. (T.T. 1399). Dougan then wrote



14 -

out a script for each person to read into 
the microphone. (T.T. 1402). Barclay sug­
gested some additions to Dougan's script. 
(T.T. 1403).

Hearn testified that all the tapes made 
that night referred to the killing, and that he 
personally saw Black, Dougan and Barclay 
making tapes. (T.T. 1399, 1403). He said
that although the taped messages depicted 
Orlando as begging for mercy, Orlando never 
had. Barclay only added that to "make it seem 
more aggressive." (T.T. 1403).

Black, Bess and Mattison also testified 
for the State. Each admitted being present 
while the tapes were made, and Black and 
Mattison admitted making tapes themselves, 
similar in all respects to those made by 
Barclay and Dougan. (T.T. 949, 977, 1182).
The three men each denied any direct knowledge 
of Orlando's death. Black and Mattison claimed 
to have made the tapes from a script prepared



15

by Dougan. (T.T. 990, 996 , 1 1 82 ). They
corroborated Hearn's testimony that Dougan was 
the person who suggested making the tapes, 
brought the tape recorder, and directed the 
production of the tapes. (T.T. 938, 950,
958-59, 986, 1155-56, 1160, 1181, 1276, 1283, 
1307). Five of the tapes —  only those 
recorded by Barclay and Dougan —  were intro­
duced into evidence and played for the jury. 
(T.T. 1009, 1014-43). Black testified to
incriminating statements made by Crittendon 
(T.T. 1159), Evans (T.T. 1 159, 1 183), -^Dougan
(T.T. 1182) and Barclay (T.T. 1183). Bess
corroborated the testimony to some extent. 
(T.T. 1279, 1281, 1287).

An expert for the State testified that 
the note found on Orlando's body was written 
by Dougan. (T.T. 1112). Another testified
that a cartridge case found by the body was

5/ Evans allegedly stated he tried to stick the knife 
in the victim's chest but it kept folding up. (T.T. 
1183).



16

fired from Hearn's gun. (T.T. 1550).
Crittenden, Dougan, Evans and Barclay 

each took the stand. Crittendon, Dougan and 
Barclay admitted having made the tapes, but 
claimed they did so at Mattison's urging and 
direction. (T.T. 1608, 1616, 1773, 1782, 
1805). All four denied complicity in the 
homicide. (T.T. 1607, 1609, 1773, 1789, 

1817).
After each side had rested, the trial 

judge called all counsel into chambers to 
discuss the charges that would be given to 
the jury before its deliberations on guilt 
or innocence. It was at first agreed by all 
counsel and the trial judge that no felony­
murder charge would be given because of a lack 
of any basis in the record for such a charge. 
(T.T. 1912-13, 1918-19). However, when the 
court later brought up the possibility of a 
charge on murder in the third degree —  which 
is defined in Florida as murder in the course 
of a felony not enumerated in the first and



17

second degree felony-murder provisions —  

defense counsel decided that they were unwill­
ing to waive a charge on the lesser included 
offense of murder in the third degree. 
(T.T. 1924, 1975). The state attorney then
insisted that the felony-murder provisions 
of first and second degree murder be charged 
as well, to avoid confusing the jury; and the 
trial judge ultimately agreed. (T.T. 1925,
1975). The jury was subsequently instructed 
on both premeditated and felony-murder. (T.T. 
2230, 2232).

b. The Sentencing Trial
At the sentencing hearing, Dougan produced 

several witnesses to testify to his good char­
acter. (S.T. 59, 61 , 64, 66, 70). No addi­
tional testimony was presented on Barclay's 
behalf. The State then brought Hearn back to 
testify about a second homicide committed by 
Crittendon and Evans at Dougan's direction, 
where Hearn once again acted as driver and



18 -

observer. (S.T. 90-111). Barclay was in no 
way implicated in the second homicide, and was 
unquestionably out of town when it occurred. 
(S.T. 109-110).

During closing argument, Barclay's at­
torney informed the jury that Barclay was 
t w e n t y - t h r e e  years old, m a rried and the 
father of five children, had never been 
convicted of a crime and had no criminal 
charges pending against him (S.T. 154). He 
highlighted the disparity in treatment of 
Hearn, Crittendon and Evans, who all faced 
punishment for only second degree murder and 
would be eligible for parole immediately upon 
their incarceration, while a life sentence for 
Barclay under the first degree murder statute 
would make him ineligible for parole until he 
was forty-eight years old. (S.T. 156). He 
further noted that Barclay was a follower, not 
a leader, and that he acted under the domina­
tion of another. (S.T. 155).



19

In its verdict, the jury expressly found 
that "sufficient aggravating circumstances do 
not exist to justify a sentence of death; ... 
[and that] sufficient mitigating circumstances 
do exist which outweigh any aggravating circum­
stances," and the jury concluded that life 
imprisonment was the appropriate punishment for 
Barclay. (S.T. 180).

The trial judge dismissed the jury and 
ordered that a presentence investigation 
report be prepared on each defendant. (S.T. 
181). On April 10 , 1975 , he imposed death
sentences on both Barclay and Dougan, despite 
the jury's verdict of life for Barclay, 
issuing a single order applicable to both 
young men. (J.A. 52; see J.A. 1-53).

3. Post-Trial Proceedings 
Barclay's and Dougan's automatic appeals 

to the Florida Supreme Court were heard and 
decided together. (J.A. 54; Barclay v. State,
343 So.2d 1266 (Fla. 1977).) The court af-



20

firmed the convictions and death sentences 
for both, holding that if it did not affirm 
Barclay's death sentence, "[t]wo co-perpetra­
tors who participated equally in the crime 
would have disparate sentences...." (J.A. 72; 
343 So.2d at 1271). The court did not review 
each of the trial court's findings of aggra­
vating circumstances applied to Barclay. In­
stead, it noted the aggravating circumstances 
found in Dougan's case, held that those find­
ings were "well documented,"— ^and recited that 
"[a]s regards Barclay ... virtually the same 
considerations apply with respect to conse-

6/ The Florida Supreme Court's description of the trial 
court's findings is puzzling. It correctly states that 
the trial judge found no mitigating circumstances as to 
Dougan, and then lists among the facts pertaining to 
Dougan that he "had no significant history of prior 
criminal activity," unquestionably a statutory mitigat­
ing factor. (Fla. Stat. §921.141(6)(a) ("the defendant 
has no significant history of prior criminal activity.") 
(J.A. 68; 343 So.2d at 1270). In discussing the aggra­
vating circumstances applicable to Dougan, the Florida 
Supreme Court dropped a footnote describing the aggra­
vating circumstances which the trial judge purportedly 
did not find; in fact, however, he unambiguously did 
find two of those. Compare J.A. 34, 35 with J.A. 69; 
343 So.2d at 1271 n.3.



21

quences of the criminal episode." (J.A. 71; 
343 So.2d at 1271). The court did not discuss 
the factual basis for those aggravating cir­
cumstances found by the trial court in Bar­
clay's case which are directed toward the 
character of the defendant rather than the 
circumstances of the offense, Fla. Stat. 
§921.141(5)(a) ("The capital felony was com­
mitted by a person under sentence of imprison­
ment"), and Fla. Stat. §921.141(5)(b) ("The 
defendant was previously convicted of another 
capital felony or a felony involving the use 
or threat of violence to the person"). Both 
of those factors are at issue in the present 
proceeding.

The Supreme Court of Florida subsequently 
vacated the death sentences imposed on both 
Barclay and Dougan in light of this Court's 
decision in Gardner v. Florida, 430 U.S. 349 
(1977), since there was a possibility that the 
trial court had relied on a presentence invest­
igation report which the defendants had had no



22

opportunity to rebut, deny or explain.
New counsel was appointed for Barclay, 

and a resentencing hearing was held in three 
parts on June 23, 1979, October 23, 1979 and 
April 18, 1980, before the trial judge who
had imposed the death sentence originally. A 
law enforcement officer who had investigated 
the case was called by the defense (R.T. 4),
and testified that Dougan was the leader of 
the group (R.T. 20-21), although Barclay was
"second in command" (R.T. 24) because he was
older and smarter than Crittendon, Evans and 
Hearn. (R.T. 28). Counsel for Barclay argued 
that the trial judge's original sentencing 
order contained a number of errors, including 
the finding of a nonstatutory aggravating 
circumstance and the overbroad interpreta­
tion of several statutory aggravating circum­
stances. (R.T. 56-94). The trial judge re­
imposed the death sentence. (R.T. 128). His 
new sentencing order was a virtual duplication 
of his original order, different only in the



23

omission of a few findings that he had made 
earlier, principally those findings relating 
to Dougan, whose resentencing had been separ­
ately conducted. (J.A. 89).—/

Once again the Florida Supreme Court 
affirmed on appeal, this time with no analysis 
at all of the trial judge's order. (J.A. 142— 
45; Barclay v. State, 411 So.2d 1310 (Fla. 
1981)). The court deemed all sentencing 
issues other than those concerning conformity 
with its Gardner remand order to have been 
decided by the original appeal. (J.A. 144-45). 
Rehearing was denied on a three-to-three vote

2/ The Florida death-sentencing statute, Fla. Stat. 
§921.141 (Supp. 1976-1977) was amended in 1979 to 
clarify that mitigating circumstances are not limited to 
those in the statute, and to add an aggravating circum­
stance ("The capital felony was a homicide and was 
committed in a cold, calculated, and premeditated manner 
without any pretense of moral or legal justification"). 
See Fla. Stat. §921.141(5)(i)(Supp. 1982). The jury 
recommended life and the judge sentenced Barclay to 
death under the older version of the statute. On resen­
tencing in 1980, the trial judge appears to have used 
the older version as well, because his recitation of the 
aggravating circumstances considered did not include 
Fla. Stat. §921.141—(5)(i). See Sentencing Order, J.A. 
134.



24

of the Justices. (J.A. 146).—^ This proceed­
ing on certiorari followed.

SUMMARY OF ARGUMENT
Elwood Barclay's death sentence was im­

posed through procedures bearing scant re­
semblance to those which this Court approved 
in Proffitt v, Florida, 428 U.S. 242, 251
(1976) (opinion of Justices Stewart, Powell 
and Stevens), as appearing " (o]n their face 
... to meet the constitutional deficiencies 
identified in Furman [v. Georgia, 408 U.S. 
238 (1972)]."

In Part 1(A) below, we show that Bar­
clay's trial judge overrode a jury recommenda­
tion of life and sentenced Barclay to die on 
the basis of (1) factors not included in the 
list of "statutory aggravating circumstances," 
Proffitt v. Florida, supra, 428 U.S. at 250,

8/ Of the nine justices in the two appeals, four 
dissented from the affirmance of the death sentence, and 
a fifth (who had not heard either appeal) would have 
voted for rehearing of the decision affirming the 
sentence after the Gardner remand.



25

which are supposed to give "specific and 
detailed guidance" to the capital sentencing 
decision, _id. at 253; (2) factors found only
by distorting the statutory aggravating 
circumstances beyond recognition, so as to 
nullify their effect as guarantors of 
even minimal "consistency in the imposition 
[of the death penalty] at the trial court 
level," jLcU at 252; and (3) factors not 
"focus [ed] on the circumstances of the crime 
and the character of the individual defen­
dant," id. at 251. In Part 1(B), we demon­
strate that this sentencing procedure was 
unconstitutional, as the very antithesis of 
"an informed, focused, guided, and objective 
inquiry into the question whether [Barclay] 
... should be sentenced to death," i d . at 
259.

In Part II below, we show that the 
affirmance of the resulting death sentence 
by the Florida Supreme Court violated every



- 26

precept of a system of appellate review in 
which the "reasons [for a death sentence], 
and the evidence supporting them, are consci­
entiously reviewed by a court which, because 
of its statewide jurisdiction, can assure 
consistency, fairness, and rationality in the 
evenhanded operation of the state law," id. 
at 259-60. Part II proceeds by (A) describing 
the rules of Elledge v. State, 346 So.2d 998 
(Fla. 1977), which purport to define the 
circumstances under which lawless findings of 
aggravating circumstances require reversal of 
a death sentence by the Florida Supreme 
Court; (B) showing that Barclay's death sen­
tence must be reversed under any consistent 
and evenhanded administration of the Elledge 
rules; and (C) showing that, insofar as the 
Elledge rules do not require the reversal 
of Barclay's death sentence, they cannot be 
squared with Due Process or the Eighth
Amendment.



27

ARGUMENT

I. BARCLAY'S DEATH SENTENCE WAS THE PRODUCT 
OF A CAPR ICIOUS SENTENCING PROCESS, 
FLOUTING THE SAFEGUARDS WHICH PROFFITT 
RELIED UPON TO ASSURE AGAINST ARBITRA­
RINESS IN DEALING OUT THE DEATH PENALTY
A. Barclay's Death Sentence Rests Pre­

ponderate^ Upon Lawless Findings 
and Considerations Not Channelled 
By The Florida Capital Sentencing 
Statute

This Court is familiar with the manner 
in which the Florida death-penalty statute 
is supposed to work. First, an advisory 
jury "is directed to consider '[wjhether 
sufficient mitigating circumstances exist 
. . . which outweigh the aggravating circum­
stances found to exist; and ... [biased on 
these considerations, whether the defendant 
should be sentenced to life [imprisonment] or 
death.'" Proffitt v. Florida, supra, 428 U.S. 
at 248. The sentencing judge is supposed to 
follow a jury's recommendation of life unless 
"'the facts suggesting a sentence of death



- 28 -

[are] ... so clear and convincing that 
virtually no reasonable person could dif­
fer. ' " I_ <3 . at 249. The facts governing  
this latter decision are required to be set 
forth in writing, following a process in 
which the trial "judge is also directed to 
weigh the statutory aggravating and miti­
gating circumstances . . . ." jrd. at 250.

Since Barclay's jury recommended life 
-- e x p l i c i t l y  finding that "sufficient 
m i t i gating circums t a n c e s  do exist which 
outweigh any aggravating c i r c u mstances"  
(S.T. 180) —  the crux of the present case
is the set of findings upon which the trial 
judge relied to override the jury's recom­
mendation and impose a death sentence. We 
turn immediately to these, and show that 
they include (1) findings of nonstatutory 
aggravating circumstances, (2) lawless find­
ings of statutory aggravating circumstances,



29

and (3) findings relating to the judge's World 
War II experiences.

1. Findings of nonstatutory aggravating 
circumstances________________
a- Prior criminal activity

Fla. Stat. § 921.141(6)(a ) makes it a 
mitigating circumstance that " [tjhe defendant 
has no significant history of prior criminal 
activity." The statute does not conversely 
make the presence of a significant history of 
prior criminal activity an a g g r a v a t i n g 
circumstance. See Fla. Stat. §921.141(5); 
gjL_9- »■ Maggard v. State, 399 So.2d 973, 977-78 
(Fla. 1981). Nevertheless, Barclay's trial 
judge, the Honorable R. Hudson Olliff, made 
the following sentencing finding:

"A. WHETHER DEFENDANT HAD NO SIGNIFI­
CANT HISTORY OF PRIOR CRIMINAL 
ACTIVITY

FACT:
The defendant, Barclay, has an 
extensive criminal record of 
seven prior arrests. It shows 
that he had previously been on



30

probation for the crime of 
uttering a forgery, and that 
subsequently that probation was 
revoked and he was sentenced 
to a term of six months County 
Jail. It also shows that he 
had previously been on five 
years probation for the crime 
of Breaking and Entering and 
Grand Larceny. There are also 
a number of misdemeanor crimes 
charged. (See PSI)
CONCLUSION:
There is an aggravating, rather 
than a mitigating circumstance 
as to the defendant Barclay 
b e c a u s e  of his e x t e n s i v e  
record showing at least one 
prior felony conviction and 
one prior felony probation."

(J .A . 108-09).
Lest there be any doubt that the absence 

of the mitigating circumstance defined by 
§921.141(6)(a) is not "an aggravating ... cir­
cumstance," the Florida Supreme Court expli­
citly so held in Mikenas v. State, 367 So. 2d 
606, 610 (Fla. 1978). Barclay's counsel
called Mikenas to Judge Olliff's attention 
(R.T. 61), to no avail. In addition, the
Florida Supreme Court has repeatedly held



31

that, even as to prior convictions of violent 
felonies, which do constitute proper statutory- 
aggravating circumstances under Fla. Stat. 
§921.141(5)(b) [see pages 37-38 infra], "mere 
arrests" do not q u a lify as convictions, 
Provence v. State, 337 So.2d 783, 786 (Fla.
1976), and any "charge [which has] ... not 
resulted in a conviction at the time of the 
[capital] trial" must be considered an im­
proper "nonstatutory aggravating factor," 
Blledqe v. State, supra, 346 So.2d at 1002.—/ 
If a defendant does have prior violent felony 
convictions, these must be proved by "evi­
dence, either at trial or during the sentenc­
ing phase," in order to warrant their consid­
eration as a statutory aggravating factor 
within § 921.141(5)(b ); their consideration 
"based solely on information contained in the

9/ We shall see in note 24 and accompanying text infra, 
that the Florida Supreme Court itself has now clearly 
taken the position that consideration of nonstatutory 
aggravating circumstances as the basis for a death 
sentence is improper.



32

presentence investigation report" is forbid­
den. Williams v. State, 386 So.2d 538, 542-43 
(Fla. 1980). Thus, on three distinct and 
unmistakable counts, Judge Olliff's finding 
that " [t]here is an aggravating, rather 
than a mitigating circumstance as to the 
defendant Barclay because of his extensive 
record" (J.A. 108) falls outside the contem­
plation of any statutory aggravating circum­
stance recognized by Florida law.

b. "Under sentence of imprisonment" 
and previous conviction of a 
violent felony_________ _________

Two additional aggravating circumstances 
found by Judge Olliff should probably be 
classified as nonstatutory, since his own 
discussion of them negates their statutory 
elements. In each case, his findings follow 
an identical logic: The statutory aggravating 
circumstances do not exist [or have not been 
proved] factually; however, the facts show 
something resembling them; t h e r e f o r e , an



33

aggravating circumstance is found. Because
these two findings do have some connection —
albeit no lawful connection —  to statutory-
aggravating factors, we consider them in
the following section. They are items
(2)(a) and (b), immediately below.

2. Lawless findings of statutory aggra- 
vating circumstances__________________
a * Under sentence of imprisonment 

Fla. Stat. § 921.141(5)(a ) makes it an ag­
gravating circumstance that " [t]he capital 
felony was committed by a person under sen­
tence of imprisonment." Judge Olliff found:

"A. WHETHER THE DEFENDANT WAS UNDER 
SENTENCE OF IMPRISONMENT WHEN HE 
COMMITTED THE MURDER OF WHICH HE 
HAS BEEN CONVICTED

FACT:
The defendant, Barclay, was 
not u n d e r  s e n t e n c e  of i m ­
p r i s o n m e n t  at the time of 
the commission of this murder. 
His rap sheet shows seven prior 
arrests and he had previously 
been convicted of a felony and 
had been on felony probation.



34

CONCLUSION:
Although not imprisoned, the 
criminal record of B a rclay 
is an a g g r a v a t i n g  c i r c u m ­
stance ."

(J.A. 120-21).
Like the fact that Barclay "had pre­

viously been convicted of a felony," the 
fact that he "had been on felony probation" 
was a thing of the past. Barclay was not 
on probat ion at the time of the present 
offense. Even if he were, the "under sentence 
of imprisonment" aggravating circumstance of 
§921.141(5)(a) would plainly not apply, since 
the Florida Supreme Court has construed the 
statute as meaning exactly what it says. To 
come within §921.141(5)(a ), a defendant must 
be "under sentence of imprisonment" at the 
time of the capital felony, not under sentence 
of probation. E.g,, Ferguson v. State, 417 
So.2d 631, 636 (Fla. 1982); Peek v. State, 395 
So.2d 492, 499 (Fla. 1981). Where, as Judge
Olliff found here, a defendant "was not under



35

sentence of imprisonment at the time of the 
commission of his murder," no amount of cy 
pres reasoning can make his "criminal record 
... an aggravating circumstance" (J.A. 121),
as Judge Olliff then went on to find.— ^ 
See Ford v. St ate, 374 So.2d 496, 501 n.1,
502 (Fla. 1979).

10/ Judge Olliff has sentenced five defendants to 
death, overriding a jury recommendation of life in four 
of the five cases. One of the four defendants in whose 
cases Judge Olliff ignored a jury's life recommendation 
committed suicide on death row before his appeal could 
be heard. Carnes v. State, No. 74-2024, 74-2131, Cir. 
Ct. 4th Jud. Cir., Duval County, Florida (Nov. 19, 
1974); Miami Herald, July 4, 1975, at 9-A. One case was 
reversed by the Florida Supreme Court because of im­
proper consideration of aggravating circumstances. 
Lewis v. State, 398 So.2d 432 (Fla. 1981). Two were 
affirmed. Barclay v. State, supra; Dobbert v. State, 
375 So.2d 1069 (Fla. 1979).

Judge Olliff found the "under sentence of imprison­
ment" aggravating circumstance to be applicable in each 
of the five cases in which he imposed a death sentence, 
although it could properly be applied in only one of 
those five. Lewis v. State, supra, 398 So.2d at 438. In 
Dougan v. State, 398 So.2d 439, 441 (Fla. 1981) (Mc­
Donald, J., dissenting), Judge Olliff found that al­
though Dougan was not under sentence of imprisonment, he 
had once been convicted of criminal contempt, and the 
aggravating circumstance therefore applied. In Dobbert 
v. State, supra, 375 So.2d at 1071, Judge Olliff found 
that although Dobbert was not under sentence of impris­
onment, he had prevented his own imprisonment for child



36

b. Previous conviction of a vio-
________________________

Fla. Stat. §921.141(5)(b ) makes it 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." Judge 
Olliff found:

"B. WHETHER THE DEFENDANT HAD PREVIOUSLY 
BEEN CONVICTED OF ANOTHER CAPITAL 
FELONY OR OF A FELONY INVOLVING THE 
USE OR THREAT OF VIOLENCE TO THE 
PERSON

FACT:
The defendant, Barclay, was 
p r e v i o u s l y  c o n v i c t e d  of 
breaking and entering with 
intent to commit the felonv 
of grand larceny. It is not 
known if such prior felony

10/ (continued)
abuse by intimidating his victims and deceiving the 
authorities, and he had been convicted twice in the 
past. In Carnes v. State, supra, Judge Olliff found 
that although Carnes was not under sentence of imprison­
ment, he was out on bond on another charge at the time 
of the offense and therefore the aggravating cirucum- 
stance applied. (A. 29a).



37

involved the use or threat 
of v i o l e n c e  in the crime. 
However, such crime can and 
often does involve violence 
or threat of violence - if 
t h e r e  is a p e r s o n  in the 
building broken into.
CONCLUSION:
This is more of an aggravat­
ing than a negative circum­
stance . "

(J.A . 121-22).

Once again, this £y pres finding of an 
aggravating circumstance is wholly lawless. 
The Florida Supreme Court has held that the 
aggravating circumstance defined by §921.141- 
(5) (b ) also means what it says: only capital 
felonies or felonies which by definition 
involve the use or threat of violence (such as 
armed robbery) may be used in aggravation, 
unless there is proof beyond a reasonable 
doubt that the offense underlying the prior 
conviction actually involved the use or threat 
of violence. See, e,g. , Mann v. State, 420
So.2d 578, 580 (Fla. 1982) (burglary convic-



38

tion may not be used as an aggravating fac­
tor); Spaziano v. State? 393 So.2d 1119, 
1122-23 (Fla. 1981) ("nonviolent felony" 
conviction "must be excluded as [an] aggravat­
ing factor]]"); Ford v. State, supra, 374 
So. 2d at 501 n.l, 502 (conviction of breaking 
and entering to commit a felony may not be 
used as an aggravating factor). In Lewis v . 
State, 398 So.2d 432, 438 (Fla. 1981), the 
Florida Supreme Court expressly found that
"two convict:ions of breaking and entering
with intent to commit a felony" did not
fall "within the meaning of this aggravat-
ing circumstance as defined by the statute," 
because the statute "refers to life-threaten­
ing crimes in which the perpetrator comes in 
direct contact with a human victim." More­
over, as we have noted at pages 31-32, supra, 
even if Barclay's prior breaking-and-entering 
offense had involved "the use or threat of 
violence in the crime" —  facts which Judge



39

Olliff conceded were "not known" (J.A. 121), 
i .e., unproved despite the State's obligation 
to prove the elements of every aggravating 
circumstance beyond a reasonable doubt, 
Williams v. State, supra, 386 So.2d at 542 —  

Judge Olliff could not properly have found an 
aggravating circumstance under §921.141(5)(b) 
based upon the PSI alone, as he purported to 
do here.— / Williams v. State, supra, 386 
So.2d at 543.— /

1V  Again, Judge Olliff found this aggravating circum­
stance to be present in all but one of the cases in 
which he sentenced a defendant to death. He found it 
applicable in Dougan v. State, supra, 398 So.2d at 441, 
although Dougan's only prior record involved a criminal 
contempt conviction with no evidence of violence. He 
found it applicable in Lewis v. State, supra, 398 So.2d 
at 438, although Lewis' prior record consisted of two 
breaking and enterings with intent to commit a felony, 
two escapes, one grand larceny, and one possession of a 
firearm by a convicted felon. (A. 49a-50a). The Flor­
ida Supreme Court disapproved the finding in Lewis, as 
noted on page 38, supra. Judge Olliff found it applic­
able in Carnes v. State, supra, although Carnes had 
never been convicted of any offense, but had been 
charged with a felony involving violence. (A. 30a). 
The Florida Supreme Court has held that charges not 
reduced to a conviction may not be used in aggrava­
tion. See page 31 supra.
J_2/ Conpliance with the requirement of Williams would 
not have been superfluous in this case. The PSI relied



40 -

c .  G r e a t  r i s k  of d e a t h  to m a n y

Fla. Stat. § 921.141(5)(c ) makes it an 
aggravating circumstance that "[t]he defen­
dant kno w i n g l y  created a great risk of 
death to many persons." Recognizing the 
need to give this statutory aggravating 
circumstance a limiting construction which 
would assure some measure of consistency in 
its application, see Kampff v. Sta t e , 371 
So.2d 1007, 1009 (Fla. 1979 ), the Florida
Supreme Court has interpreted it to require 
( 1 ) that the risk of death created be to 
"many" people, not just to one or two,-LI/ 
and (2) that there must be something in the

12/ (continued)
upon by Judge Olliff to establish Barclay's record 
contains two different versions of that record, and a 
comparison of the two produces only confusion as to the 
actual number and nature of Barclay's encounters 
with the law. (A. 77a-79a).
-11/ Blair v. State, 406 So.2d 1103, 1107-08, (Fla. 
1981) (victim alone with defendant in house, child 
outside mowing lawn; held, "one or two" is not "many" 
persons); Odom v. State, 403 So.2d 936, 942 (Fla. 1981) 
(two women present with victim in house when defendant 
and accomplice fired shotguns through window; held, not



41

nature of the homicidal act itself (as in ar­
son or the use of explosives), or in the de­
fendant's conduct immediately surrounding the 
homicidal act, which created such a risk.li/

13/ (continued)
"many" persons); Lewis (Robert) v. State, supra, 398 
So.2d at 438 (same; Odom's accomplice); Jacobs v. State, 
396 So.2d 713, 718 (Fla. 1981)("Although the shooting 
occurred in a rest area close to a major highway, it was 
done with pistols at close range where few, not many, 
suffered a risk of injury"); Johnson v. State, 393 So.2d 
1069, 1073 (Fla. 1981) ("gun battle" in pharmacy, three 
other people present; held, not "many" persons); Wil­
liams v. State, supra, 386 So.2d at 541-42 (two people 
shot in bed; held, not "many" persons); Brown v. State, 
381 So.2d 690, 696 (Fla. 1980) (robbery of shop, no 
indication of number of persons present; held, no proof 
that "many" persons were endangered); Lewis (Enoch) v. 
State, 377 So.2d 640, 646 (Fla. 1979) (victim's son and 
daughter in yard witti victim when several shots were 
fired; held, not "many" persons); Dobbert v. State, 
supra, 375 So.2d at 1070 (defendant killed one child, 
physically abused three other children; held, not "many" 
persons); Karnpff v. State, supra, 371 So.2d at 1009-10 
(defendant fired five shots at victim in heavily tra­
veled retail bakery where two others were present; held, 
not "many" persons).
W  Bolender v. State, So.2d , 1982 Fla. Law
Wkly, SCO 490, 491 (No. 59,333) (Oct. 28, 1982) (other 
people present at scene of homicide, but defendant 
"never directed his actions toward any of the uninvolved 
people, and the means by which he inflicted the injur­
ies, the gun, knife and baseball bat, were not used to 
endanger the lives of those individuals"); Ferguson 
v. State, 417 So.2d 639, 643, 645 (Fla. 1982) (eight 
People in house, each shot by defendant or accomplice



- 42 -

14/ (continued)
while bound, all but two killed; each homicide committed 
without risk to others; held, aggravating circumstance 
inapplicable); Tafero v. State, 403 So.2d 355, 362 (Fla. 
1981) ("attempting to run a roadblock and being stopped 
by police gunfire does not constitute 'great risk' to 
'many persons' as we defined those terms in Kampff"); 
Mines v. State, 390 So.2d 332, 337 (Fla. 1980) (defen­
dant killed victim in van, then stopped passing motorist 
whom he hit with a machete; he fled in the car at high 
speed, took another woman hostage; finding of "great 
risk" vacated because only conduct surrounding the 
homicide of the victim, not after-occurring acts, 
may provide the basis for "great risk"); Dobbert v . 
State, supra, 375 So.2d at 1070 (murder by strangulation 
did not create "great risk" of death to others despite 
defendant's violent abuse of his several children at 
other times); Elledge v. State, supra, 346 So.2d at 1004 
(defendant committed another homicide in another city 
after the victim was killed; "[i]t is only conduct 
surrounding the capital felony for which the defendant 
is being sentenced which properly may be considered" as 
a basis for a finding of "great risk").

We must acknowledge that this aggravating circum­
stance has been found in a handful of cases in which the 
standards enunciated by the Florida Supreme Court 
have not been followed. Lucas v. State, 376 So.2d 1149, 
1153 (Fla. 1979) ("raging gun battle" but only three 
people present); Ford v. State, supra, 374 So.2d at 497, 
500-02 n.1 (defendant threatened victims of robbery with 
gun; drove at high speeds creating a risk to others on 
the road) (compare with Tafero v. State, supra); 
Huckaby v. State, 343 So.2d 29 (Fla. 1977) (defendant 
convicted of sexual battery of a child, "sincere threats 
on the lives of his nine children and wife over the



43

Judge Olliff based his finding of the 
"great risk" aggravating circumstance— /on

14/ (continued)
course of many years" often resulting in actual harm 
considered sufficient (compare with Dobbert v. State, 
supra); Alvord v. State, 322 So.2d 533, 535 (Fla. 1975) 
(defendant murdered three woman by strangulation). In 
another small number of cases the Florida Supreme 
Court neither approved nor disapproved the finding of 
"great risk" by the trial court. Most of these cases 
were reversed on other grounds. Mikenas v. State, 367 
So.2d 606 (Fla. 1978) (shoot-out during robbery of 
convenience store, number of people present not indi­
cated; reversed because of consideration of nonstatutory 
aggravating circumstances); Washington v. State, 362 
So.2d 658, 660, 663 (Fla. 1978) (four victims of robbery 
shot at close range while bound, one killed; death 
sentence affirmed); McCaskill & Williams v. State, 344 
So.2d 1276, 1277, 1280 (Fla. 1977) (thirty-five to forty 
people in liquor store during hold-up, gun battle 
outside store as participants fled; death sentences 
reversed because jury recommendation of life was reason­
able); Slater v. State, 316 So.2d 539, 540, 542 (Fla. 
1975) (only one victim present, but threat existed to 
"any unknown persons who might have chanced into the 
office;" death sentence reversed because jury recommen­
dation of life was reasonable); Proffitt v. State, 315 
So.2d 460, 461, 467 (Fla. 1975) aff'd sub nom. Proffitt 
v. Florida, 428 U.S. 242 (1976) (victim in bed stabbed 
once in chest; wife sleeping beside him was pushed down 
by intruder when she awoke; death sentence affirmed).
15/ Yet again, Judge Olliff found this aggravating 
circumstance to be present in every case in which he 
imposed a death sentence. The finding was vacated 
by the Florida Supreme Court in both Lewis v. State,



44

the fact that the defendants passed over 
several other people before O r l a n d o  was 
selected as the victim (J.A. 122-23), and on 
the potential danger created by the "call for 
revolution and racial war" contained in the 
tapes sent to the news media several days 
after the homicide. (J.A. 123-24). Neither 
of these features of the case brings it 
properly within the Florida Supreme Court's 
usual construction of the aggravating circum­
stance:

(i) The fact that the defendants 
may have passed by and rejected other victims 
before finding and killing Orlando does not 
establish that Orlando's murder was committed

15/ (continued)
supra, 398 So.2d at 438 and Dobbert v. State, supra, 398 
So.2d at 1070. (See n. 13 supra.) In Carnes v. State, 
supra, there were two people present in the house, 
although in another room, when the defendant shot 
the victim. (A. 13a-14a). Judge Olliff found the 
aggravating circumstance to be applicable because 
of the defendant's mistreatment of the two other people 
after the homicide was completed. (A. 31a-33a).



45

in such a fashion as to create a great risk of 
death to many persons. Dougan and his confed­
erates set out to kill one person; they 
searched until they found one alone; they took 
him to a still lonelier spot, where he was the 
only person present in addition to the confed­
erates at the time of the killing. To find 
that the 'casing' of other victims elsewhere 
prior to the homicide makes this aggravating 
circumstance applicable would be to find that 
every robber who passes several stores, every 
rapist who walks the street looking for a 
victim, has, by his very decision to avoid the 
presence of other people, created a "great 
risk of death to many people." If this reason­
ing were allowed, there would simply be "no 
principled way to distinguish this case, in 
which the death penalty was imposed, from 
the many cases in which it was not." Godfrey 
v. Florida, 446 U.S. 420, 433 (1980) (plural­
ity opinion).



46

(ii) Reliance on the "call to 
revolution" fares no better. It violates 
both the principle that behavior subsequent 
to the homicide (here the production of the 
tape recordings) cannot be considered as 
establishing the "great risk" aggravating 
circumstance, see note 14 supra, and the 
principle "that a person may not be condemned 
for what might have occurred. The attempt to 
predict future conduct cannot be used as a 
basis to sustain an aggravating circumstance." 
White v. State, 403 So.2d 331, 337 (Fla. 1981) 
(emphasis in original).

We recognize that the Florida Supreme 
Court affirmed the finding of this aggravating 
circumstance in its opinion on the first of 
Barclay's two appeals. (J.A. 70; Barclay v . 
State, supra, 343 So.2d at 1271 n.4). In do­
ing so, however, it made no effort to ration­
alize the finding by any logic which would 
render it consistent with the substantial body



47

of the court's own decisions that have inter­
preted the "great risk" statutory circumstance 
in a way which would make it inapplicable 
here. See notes 13 and 14 s u p r a . The 
conclusionary statement that the finding is 
"well documented in the record before us," 
(J.A. 70; Barclay v. State, supra, 343 So.2d 
at 1271) therefore brings the case to this 
Court in a posture identical to Godfrey v . 
Georgia, supra, 446 U.S. at 432, where "the 
State Supreme Court [had] simply asserted 
that the verdict was 'factually substan­
tiated,'" although not by any consistent 
reasoning that this Court could discern.
What this implies at best is that the Florida
Supreme Court itself has here — and perhaps
in some other cases as well, see the second
paragraph of note 14 supra — failed to
observe with regularity its own professed 
interpretations of Fla. Stat. §921.141(5)(c). 
See also notes 16 and 17 infra. If these



- 48

failures can be taken together with their 
opposites as constituting the law of Florida, 
then Judge Olliff's finding of the "great 
risk" circumstance in Barclay's case was not 
indeed "lawless" in the sense of departing 
from the law; it was "lawless" in the more 
fundamental sense of lacking any law to follow 
or depart from.

d. Murder committed during a kid- 
n a p p i n g__________

Fla. Stat. § 921.141(5)(d ) makes it an 
aggravating circumstance that "[t]he capital 
felony was committed while the defendant was 
engaged, or was an accomplice, in the commis­
sion of ... any ... kidnapping ...." Judge 
Olliff found this aggravating circumstance 
(J.A. 125-27); and, at first blush, it might 
well seem to apply to the facts as he sets 
them forth. There are, however, two problems 
with this finding. First, the facts as re­
lated by Judge Olliff are nowhere to be found 
in the record. Second, the judge himself ruled



49

in the first instance that there was insuffi­
cient evidence of a kidnapping in this case.

Judge Olliff recites in his sentencing 
findings that the defendants "by force and/or 
threats kept [Orlando] ... in their car until 
they found an a p propriate place for the 
murder." (J.A. 126). But the only witness
who testified about the circumstances of the 
car ride, William Hearn, said that Orlando got 
in the car voluntarily, joked and exchanged 
pleasantries, and rode with the defendants 
without any threat or force being used. (T.T. 
1369-72). There is no evidence that he pro­
tested in the slightest when Dougan ordered 
Hearn to pass the street which Orlando had 
designated as the one where they could buy 
some marijuana, and instead to proceed to 
another place where they could get drugs from 
a black woman. It was only when Dougan told 
Orlando to get out of the car at the site of 
the homicide that Orlando first indicated any



- 50

unwillingness to accompany the occupants of 
the car in which he had hitched a ride.

More importantly, Judge Olliff himself 
deemed the evidence insufficient to estab­
lish a kidnapping. During the charge confer­
ence at the close of the trial on guilt, all 
counsel and the trial judge agreed that the 
felony-murder provisions of the first and 
second degree murder statutes which included 
kidnapping as one of the predicate felonies 
would not be read to the jury because they 
were not applicable on the facts proved at 
trial. (T.T. 1912-1913, 1918-19). A felony­
murder instruction was eventually given only 
because counsel for the defendants refused 
to waive an instruction on the lesser offense 
of third degree murder (murder during the 
course of a nonenu m e r a t e d  felony) (T.T. 
1924-1975), and the instruction would be too 
confusing and incomprehensible unless the jury 
had received instructions on first and second



51

degree felony-murder spelling out the enumer­
ated felonies. (T.T. 1925, 1975).

e. Murder committed to disrupt a 
g o v e r nmental function, and 
"especially heinous, atrocious 
or cruel"_________________________

The two remaining aggravating circum­
stances found by Judge Olliff pose considerab­
ly greater difficulty in analysis, the first 
(that "the capital felony was committed to 
disrupt or hinder the lawful exercise of any 
governmental function or the enforcement of 
laws," Fla. Stat. § 921.141(5)(g )) because
the Florida Supreme Court has said so little

1 6/about it that no clear standards emerge;— '

16/ The "hinder law enforcement" aggravating circum­
stance has been found by the trial court in twenty-five 
cases reviewed by the Florida Supreme Court on appeal. 
In all but eleven of the cases, the circumstance was 
applied to a factual situation in which a victim or 
bystander witness of a felony was then killed by the 
felon, apparently to avoid prosecution for the underly­
ing felony. See Gilven v. State, 418 So.2d 996, 1000 
(Fla. 1982); Ferguson v. State, 417 So.2d 639, 642-43 
(Fla. 1982); Jones v. State, 411 So.2d 165, 168 (Fla. 
1982); Smith v. State, 407 So.2d 894, 903 (Fla. 1981); 
Francois v. State, 407 So.2d 885, 890 (Fla. 1981); 
Blair v. State. 406 So.2d 1103, 1108-09 (Fla. 1981);



52

the second (that the offense was "especially

16/ (continued)
White v. State, 403 So.2d 331, 337-38 (Fla. 1981); Welty 
v. State, 402 So.2d 1159, 1164 (Fla. 1981); Zeigler v. 
State, 402 So.2d 365, 376 (Fla. 1981); Williams v . 
State, supra, 386 So.2d at 541, 543; Clark v. State, 379 
So.2d 97, 107 (Fla. 1979); Washington v. State, 362 
So.2d 658, 665-66 (Fla. 1978); Meeks v. State, 339 So.2d 
186, 190 (Fla. 1976); Meeks v. State, 336 So.2d 1142, 
1143 (Fla. 1976). In six of the cases, the defendant 
killed a police officer, apparently to avoid arrest for 
another offense. Tafero v. State, 403 So.2d 355, 362 
(Fla. 1981); Jacobs v. State, 396 So.2d 713, 715-16,
(Fla. 1981); Holmes v. State, 374 So.2d 944, 945-46 
(Fla. 1979); Ford v. State, supra, 374 So.2d at 497;
Songer v. State, 365 So.2d 696, 698-99 n.2 (Fla. 1978); 
Raulerson v. State, 358 So.2d 826, 828 (Fla. 1978). In 
three cases the victim was a police informant, or slated 
to be a witness in a judicial proceeding against the 
defendant or his associates. Bolender v. State,
So.2d ____, 1982 Fla. Law Wkly, SCO 490 (No. 59,333)
(Oct. 28, 1982); White v. State, 415 So.2d 719, 720 n.2 
(Fla. 1982); Antone v. State, 382 So.2d 1205, 1208-09
(Fla. 1980). The remaining two cases are those of
Barclay and Dougan, where the circumstance was based on 
the defendants' "call for revolution."

The Florida Supreme Court has often questioned the 
applicability of the "hinder law enforcement" aggravat­
ing circumstance to a particular case because of doubts 
whether the evidence was adequate to show that the de­
fendant killed the victim to avoid arrest, rather than 
for some other reason. It has never vacated a finding 
of "hinder law enforcement," however, except to correct 
its use as an additional factor when the reasons for 
applying it were counted separately against the defend­
ant under the "avoid arrest" aggravating circumstance, 
Fla. Stat. §921.141 (5)(e).



53

heinous, atrocious or cruel," Fla. Stat. 
§921.1 41(5)(h)) because the Florida Supreme 
Court has made so many contradictory state­
ments about it that no clear standards 
emerge.~/ The dissenting justices in Dougan

17/ The "especially heinous, atrocious or cruel" 
aggravating circumstance has generated a welter of 
unintelligible law. The Florida Supreme Court has 
vacated many findings of "especially heinous, atrocious 
or cruel", but it has also approved the finding in 
circumstances which seem factually indistinguishable. 
The narrowing construction given §921.141(5)(h) in 
State v, Dixon, 283 So.2d 1, 9 (Fla. 1973), and approved 
by this Court in Proffitt v. Florida, supra, 428 U.S. at 
255-56, does not seem to have assisted in ensuring a 
consistent application of the circumstance.

The Florida Supreme Court has had no problem in 
cases where the victim was physically tortured, e.g., 
Gardner v. State, 313 So.2d 675 (Fla. 1975)(victim 
sustained over one hundred bruises, and injuries includ­
ing genital mutilation); where death was caused by 
strangulation, e.g., Adams v. State, 412 So.2d 850 (Fla. 
1982); or where a female victim was sexually assaulted 
before being murdered, e.g., Hitchcock v. State, 413 
So.2d 741 (Fla. 1982). However, in a variety of 
other situations, too numerous to catalogue here, the 
Florida Supreme Court's results are not so comprehensi­
ble or consistent. A few examples relating to the 
grounds for the §921.141(5)(h) finding in Barclay's 
case will suffice to make the point.

Judge Olliff based his finding that the killing was 
"especially heinous, atrocious or cruel" on (1) the 
fact that the murder was premeditated and the victim 
was stalked, (2) the fact that the murder was motivated



- 54 -

17/ (continued)
by a desire for revolution and (3) the facts that the 
victim was "repeatedly stabbed by Barclay as he writhed 
in pain begging for mercy. Then Dougan shot him twice 
in the head." (J.A. 132-34).

The fact that the murder was premeditated exists, 
of course, in every case where a defendant is convicted 
of first degree murder on a theory of premeditation. 
Premeditation is one of the two grounds of liability for 
first degree murder in Florida, see Fla. Stat. §782.04- 
(1)(a); the other —— felony murder —- almost invariably 
triggers the separate aggravating circumstance defined 
by Fla. Stat. §921. 141(5)(d). If premeditation alone 
serves to make a murder "especially heinous, atrocious 
or cruel," then there are virtually no first degree 
murders which are not eo ipso candidates for the death 
penalty under either §921.141(5)(h) or (5)(d). Yet the 
Florida Supreme Court has persistently come out both 
ways on the question whether premeditation suffices 
under subsection (5)(h). Compare Harvard v. State, 414 
So.2d 1032, 1033, 1036 (Fla. 1982) (defendant "stalked" 
and harassed ex-wife after their separation; homicide 
itself was committed by a single shotgun blast at 
ex-wife while she was in a car, death was instantaneous, 
with no evidence that she was aware of danger when 
killed; trial court's finding of "heinous, atrocious or 
cruel" ̂ circumstance based on fact that the crime was 
premeditated, calculated and "a cold-blooded execution" 
upheld) with Kampff v. State, supra, 371 So.2d at 1008, 
1010 (defendant and wife were separated three years; 
defendant harassed her throughout the period; the 
homicide was committed by five shots at victim in a 
store, three of which struck and killed her; held, 
heinous, atrocious or cruel" circumstance was not 
applicable). Compare Vaught v. State, 410 So.2d 147, 
148, 151 (Fla. 1982) (robbery victim exposed defendant's 
face, defendant shot him five times; held, "heinous, 
atrocious or cruel" circumstance was applicable because



55

17/ (continued)
the murder was "inflicted in a cold, calculating, or 
'execution-style' fashion") with Menendez v. State, 368 
So.2d 1278, 1282 (Fla. 1979) (robbery victim shot twice 
while arms were raised in submissive position; held, 
"there is nothing to set this execution murder 'apart 
from the norm of capital felonies'"). Compare McCray v. 
State, 416 So.2d 804, 805, 807 (Fla. 1982) (defendant, 
angered by victim's actions during robbery, approached
him and said, "This is for you motherf---er", then
shot him three times; held, "heinous, atrocious or 
cruel" circumstance was not applicable); with Johnson v. 
State, 393 So.2d 1069, 1071, 1073, 1074 (Fla. 1980) 
(defendant, angered by fact that victim had shot at him 
during robbery, walked up to victim when victim ran out 
of bullets and said, "You think you're a smart son-of- 
a-bitch, don't you?" then shot him once in the chest; 
held, "heinous, atrocious or cruel" applicable to 
this "execution murder.")

There are no cases with which to compare Judge 
Olliff's second reason for finding the "heinous, atro­
cious, or cruel" circumstance in Barclay, i.e., the call 
for "revolution." However, this motive for a murder 
would seem irrelevant to the stated issue whether "the 
actual commission of the capital felony was ... [a] 
conscienceless or pitiless crime which is unnecessarily 
torturous to the victim." State v. Dixon, supra, 283 
So.2d at 9.

Judge Olliff's third reason, the stabbing and 
shooting of the victim, comes closer to the Dixon 
definition of "especially heinous, atrocious or cruel," 
but here again there are problems. One is that Judge 
Olliff's description of the homicide contradicts that 
given by the only eyewitness who testified, Hearn (see 
pages 49-50 supra), drawing instead upon the tapes, 
which Hearn said were exaggerated for propaganda pur­
poses (T.T. 1403). While in an ordinary case the



- 56 -

17/ (continued)
resolution of such a "factual dispute" —  if it can 
be described as such —  would, of course, be left to the 
trial judge, here there was another finder of fact 
involved, the jury; and the jury took a view of the 
facts that led it to recommend life for Barclay. Thus, 
under Florida law as the Florida Supreme Court has 
repeatedly declared it, Judge Olliff's findings of 
"facts suggesting a sentence of death" were required to 
be "so clear and convincing that virtually no reasonable 
person could differ." Tedder v. State, 322 So.2d 
908, 910 (Fla. 1975). See, e.g., Gilvin v. State, 
supra, 418 So.2d at 999; Williams v. State, supra, 386 
So.2d at 543, and cases cited. In any event, even if 
the events surrounding the homicide are taken to be as 
they are described in Judge Olliff's sentencing order, 
it is far from clear that they would support a finding 
of an "especially heinous, atrocious or cruel" murder, 
consistently with the Florida Supreme Court's applica­
tion of that statutory circumstance in numerous other 
cases than Barclay's. In Halliwell v. State, 323 
So.2d 557 (Fla. 1975), the victim was beaten to death 
with a nineteen inch breaker bar. The Florida Supreme 
Court saw "nothing more shocking in the actual killing 
than in a majority of murder cases reviewed by this 
Court." Id. at 561. In Simmons v. State, 419 So.2d 
316, 318-19 (Fla. 1982), the victim was bludgeoned to 
death with a roofing hatchet. The Florida Supreme 
Court vacated a finding that the offense was "especially 
heinous, atrocious or cruel." In Demps v. State, 395 
So.2d 501, 503, 504, 506 (Fla. 1982), the victim 
died frcm multiple stab wounds, and lived for several 
hours before succumbing. Held: not "especially
heinous, atrocious or cruel." In Lewis v. State, 377 
So.2d 640, 646 (Fla. 1979), the victim was shot several 
times in the chest and back while trying to flee from 
the defendant. Held: not "especially heinous, atro­
cious or cruel." In Riley v. State, 366 So.2d 19,



57

v. State, 398 So.2d 439, 441 (Fla. 1981), 
believed the first to be inapplicable to the 
case, and the second to be applicable. We 
will dwell on neither here, because Elwood 
Barclay's death sentence must be vacated 
whether they were properly found or not. (See 
pages 83-1 07 infra. ) We do not concede, 
however, the applicability of either circum-

17/ (continued)
20, 21 (Fla. 1978), the owner of a store, his son, and 
the manager of the store were bound, gagged and shot in 
the head by the defendant. One survived. Held: not 
"especially heinous, atrocious or cruel." In Tedder v. 
State, 322 So.2d 908, 910 (Fla. 1975), the victim was 
allowed to "languish, without assistance or the ability 
to obtain assistance." Held: not "especially heinous, 
atrocious or cruel." Nothing in the stabbing or shoot­
ing of Stephen Orlando serves to distinguish these 
cases.

A final comment on Judge Olliff's finding of the 
§921.141(5)(h) circumstance is in order. Judge Olliff 
has found each of the cases in which he sentenced a 
man to death to be an "especially heinous, atrocious or 
cruel" crime. In each he described his years of experi­
ence in criminal justice, and his experiences on the 
battlefields of world War II. In each he pronounced 
that although, because of those experiences he was not 
easily shocked, the offense before him shocked him. 
(See J.A. 50-51, 137-39; A. 40a-41a„ 74a-75a; Dobbert v. 
Florida, 432 U.S. 282, 296 n.9 (1977)).



58

stance, or the sufficiency of the Florida 
Supreme Court's interpretation and applica­
tion of either circumstance to satisfy this 
Court's concern against "standards so vague 
that they would fail adequately to channel 
... sentencing decision patterns ... with 
the result that a pattern of arbitrary and 
capricious sentencing like that found uncon­
stitutional in Furman could occur," Gregg v. 
G e o r g i a , 428 U.S. 153, 195 n.46 (1976);
see Godfrey v. Georgia, supra, 446 U.S. at 
428.

3. An additional n o n s t a t u t o r y  
a g g r a v a t i n g  c i r c u m s t a n c e ,  
and its relationship to Judge 
O l l i f f's p e r s o n a l experience

Judge Olliff did not rest his sentence 
of death for Elwood B a rclay solely upon 
the aggravating circum s t a n c e s  discussed 
above. No fair reading of his sentencing 
findings can escape the conclusion that he 
sentenced Barclay to die in large measure 
because of his personal abhorrence for the



59

motive which prompted the killing of Stephen 
Orlando: racial hatred. Although the fact 
that this killing was racially motivated might 
certainly have been considered as a proper 
aggravating circumstance under a statute 
making it one (cf_. Cal. Penal Code §190.2-
(a)(16)), the plain fact is that the Florida 
legislature chose not to include such a 
circumstance in its statutory scheme. Under 
that statute, by which Florida sentencing 
judges are supposed to be "given guidance 
regarding the factors about the crime and the 
defendant that the State, representing organ­
ized society, deems particularly relevant to 
the sentencing decision," Gregg v. Georgia, 
supra, 428 U.S. at 192, it nowhere appears 
that they are to consider whether a victim 
is killed because the defendant hates whites, 
or blacks, or women, or any other class of 
persons, however abhorrent the bigotry in­
volved .



60

In his dissent from the original affirm­
ance of Barclay's death sentence, Justice (now 
Eleventh Circuit Judge) Hatchett found the 
trial judge's consideration of factors outside 
the record, "incuding his own personal experi­
ences," to have upset the balance mandated by 
the statute. (J.A. 76; Barclay v. State, 
supra, 343 So.2d at 1272). Justice Hatchett 
refers, of course, to Judge Olliff's lengthy 
exhortation about his experiences during World 
War II in Nazi Germany, a sample of which 
follows:

"Similar sentiments were v i o l e n t l y  
uttered on another continent in our 
own recent history. During World War 
II, I was a m o n g  s o m e  of the f i r s t  
Amer i c a n  Combat P a r achute Infantry 
Soldiers to enter Nazi Germany, and 
I was present at the li b e r a t i o n  of 
several slave labor and concentration 
camps. Particularly, the concentra­
tion camps made a vivid and lasting 
impression upon me. I saw human corpses 
stacked like cord wood — to be buried or 
burned in the ovens.
"Those people had been murd e r e d  in 
various ways, by starvation, torture, 
gassing or they were shot. They were



61

murdered because they were all guilty 
of the same crime - they were d i f ­
ferent from those people who murdered 
them. They were either of a different 
race, culture, religion or political 
belief. That was their only crime - 
they were different. Surely we must 
have learned some lasting lesson from 
that tragic holocaust."

(J.A. 92-93).
And again:
"My experience with the sordid, tragic 
and violent side of life has not been 
confined to the Courtroom. I, like so 
many American Combat Infantry Soldiers, 
walked the battlefields of Europe and saw 
the thousands of dead American and German 
soldiers and I witnessed the concentra­
tion camps where innocent civilians and 
children were murdered in a war of racial 
and religious extermination."

(J.A. 1 37-38 ).-11/ (See also J.A. 4-5, 50).
It is o b v i o u s l y  e a s i e r  for one to

empathize with Judge Olliff's lasting horror
at the Holocaust than to understand Barclay's
violent bigotry against white people. Never-

18/ It should be noted that in each of the sentencing 
orders in each of the five cases in which Judge Olliff 
sentenced a man to death, he commented upon his experi­
ence in World War II and the horror of that experience. 
(A. 40a-41a, 75a, and Dobbert v. Florida, 432 U.S. 282, 
296 n.9 (1977).



- 62

theless, noble emotions are no exception to 
the rule that l e g islative standards for 
capital sentencing are required precisely 
because "[i]t is of vital importance to the 
defendant and to the c o mmunity that any 
decision to impose the death sentence be, and 
appear to be, based on reason rather than 
caprice or emotion." Gardner v. Florida, 430 
U.S. 349, 358 ( 1977)(plurality opinion). The 
manifest implication of Judge Olliff's  
reliance upon his experience in World War II 
is that Elwood Barclay's death sentence was to 
depend upon the capricious accident of his 
trial judge's history, rather than on his own. 
Notably, Barclay's jury recommended life for 
him, although the ugly motive for his crime 
was spread indelibly across the trial record, 
no less obvious to the jury than the judge. 
The contrast of the jury's verdict with Judge 
Olliff's sentence surely reflects in no small 
part the fact that the jurors were instructed



63

to consider only the statutory aggravating 
circumstances, while he felt free to add 
others of his choosing.

B. A Sentencing Process So Lawless 
As The One Which Condemned Barclay 
To Die Violates the Eighth and 
Fourteenth Amendments

Little argument seems necessary to 
demonstrate that a procedure for condemning 
men to die upon the basis of an ad hoc 
concatenation of nonstatutory aggravating 
circumstances and of "statutory" circumstances 
twisted into shapelessness violates the Eighth 
Amendment. The essence of this Court's deci­
sions applying the Amendment to the process of 
capital sentencing has been the "insistence 
that capital punishment be imposed fairly, and 
with reasonable consistency, or not at all." 
Eddings v. O k l a h o m a , 455 U.S. 104, 112
(1982). "Because of the uniqueness of the 
death penalty, Furman held that it could not 
be imposed under sentencing procedures that
created a substantial risk that it would be



64

inflicted in an arbitrary and capricious 
manner." Gregg v. Georgia, supra, 428 U.S. 
at 188.

The Court has never deviated from this 
basic principle.— / "Furman ... require [d] 
that ... sentencing discretion [in capital 
cases] ... be 'directed and limited,' ... so 
that the death penalty would be imposed in 
a more consistent and rational manner and 
so that there would be a 'meaningful basis 
for distinguishing the . . . cases in which 
it is imposed from . . . the many cases in 
which it is not.'" Lockett v. Ohio, 438 U.S. 
586, 601 (1978)(plurality opinion).

19/ See, e.g., Zant v. Stephens, U.S. , 72
L.Ed.2d 222, 225-26 (1982):

"In Gregg v. Georgia, ... we upheld the Georgia 
death penalty statute because the standards and 
procedures set forth therein promised to alle­
viate to a significant degree the concern of Furman 
... that the death penalty not be imposed capri­
ciously or in a freakish manner. We recognized 
that the constitutionality of Georgia death sen­
tences ultimately would depend on the Georgia 
Supreme Court construing the statute and reviewing



65

"This means that if a State wishes 
to authorize capital punishment it 
has a constitutional responsibility 
to tailor and apply its law in a 
manner that avoids the arbitrary and 
c a p r i c i o u s  i n f l i c t i o n  of the 
death penalty. Part of a State's 
responsibility in this regard is 
to define the crimes for which 
death may be the sentence in a 
way that obviates 's t a n d a r d 1ess 
[sentencing] discretion.' .... 
It must channel the sentencer's 
d i s c r e t i o n  by 'clear and o b j e c ­
t i v e  s t a n d a r d s '  that p r o v i d e  
'specific and detailed guidance,' 
and that 'make rationally review- 
a b l e  the p r o c e s s  for i m p o s i n g  
a sentence of death.'"

Godfrey v. Georgia, supra, 446 U.S. at 428.
The role of statutory aggravating circum­

stances in channelling the sentencer's discre-

19/ (continued)
capital sentences consistently with this concern."

Hopper v. Evans, U.S. , 72 L.Ed.2d 368, 373 
(1982):

"Our holding in Beck [v. Alabama, 447 U.S. 625 
(1980)], like our other Eighth Amendment decisions 
in the past decade, was concerned with insuring 
that sentencing discretion in capital cases is 
channelled so that arbitrary and capricious results 
are avoided."



66

tion is obvious. Sta t u t o r y  a g g ravating 
circumstances serve three indispensable, 
interrelated functions in this regard:

First, because "the provision of relevant 
[sentencing] information under fair procedural 
rules is not alone sufficient to guarantee 
that the information will be properly used," 
Gregg v. Georgia, supra, 428 U.S. at 192, 
statutory aggravating circumstances provide 
the sentencer "with standards to guide its use 
of the information," id. at 195. They are the 
primary instrument through which, " [u]nder 
Florida's capital-sentencing procedures, 
... trial judges are given specific and 
detailed guidance to assist them in decid­
ing whether to impose a death penalty or 
imprisonment for life." Proffitt v. Florida, 
supra, 428 U.S. at 253.

Second, statutory aggravating circum­
stances supply the necessary predicate for 
"meaningful appellate review ... to ensure



67-

that death sentences are not imposed capri­
ciously or in a freakish manner." Gregg v. 
Georgia, supra, 428 U.S. at 195. "[T]o the
extent that any risk to the contrary exists, 
it is minimized by Florida's appellate review 
system, under which the evidence of the 
aggravating and mitigating circumstances is 
reviewed and reweighed by the Supreme Court of 
Florida, 'to determine independently whether 
the imposition of the ultimate penalty is 
warranted.'" Proffitt v, Florida, supra, 428
U.S. at 253. It is the specification of a 
fixed roster of aggravating circumstances, 
whose legal applicability and evidentiary 
support can be assessed objectively on appeal, 
which alone can guarantee "'that the [aggra­
vating and mitigating] reasons present in one 
case will reach a similar result to that 
reached under similar circumstances in another 
case.'" _Id. at 251, quoting State v. Dixon, 
283 S o . 2d 1 1 10 (Fla. 1973). St atutory



-  68

aggravating circumstances are, in short, the 
basic tool by which capital sentencing has 
been brought back within the traditions of "a 
legal system ... operated by following 
prior precedents and fixed rules of law." 
Gregg v. Georgia, supra, 428 U.S. at 193.

Third, statutory aggravating circum­
stances are the means by which capital 
sentencing is kept "circumscribed by ... 
legislative guidelines." _Id. at 207. They 
furnish the sentencer with "guidance regarding 
the factors about the crime and the defendant 
that the State, representing organized soci­
ety, deems p a r t i c u l a r l y  relevant to the 
sentencing decision." Id̂ . at 192. They thus 
assure that the death penaty will be used only 
for the purposes, and within the boundaries, 
set for it by the re g u l a r l y  constituted 
lawmaking and policymaking organ of the State, 
so as to avoid the evil against which the 
Eighth Amendment was historically addressed:



69

"Severe punishments not legally authorized 
and not within the jurisdiction of the 
courts to impose." Furman v. Georgia, 408 
U.S. 238, 376 (1972)(dissenting opinion of
Chief Justice Burger), citing Granucci, 
"Nor Cruel and Unusual Punishments Inflict- 
ed:" The Original Meaning, 57 CALIF. L. 
REV. 839 , 852-60 (1969).— /

When the death penalty is meted out on 
the basis of an open-ended inventory of 
nonstatutory aggravating circumstances, 
limited only by the individual sentencing 
judge's imagination, all of these features 
of a regular, evenhanded, lawful adminis­
tration of capital punishment are fatally 
undermined. A nonstatutory factor that 
strikes one judge as aggravating may be 
ignored or differently assessed by another; 
the same judge may overlook a factor in a

20/ This history is also reviewed in Brief for 
Petitioner in Fowler v. North Carolina, No. 73-7031, 
at pages 27-39.



-  70 -

dozen cases before awakening to its signifi­
cance in the thirteenth. This is the paradigm 
of arbitrariness. It is the rule of men, not 
Law. But " [w]hen we consider the nature and 
the theory of our institutions of government, 
... we are constrained to conclude that they 
do not mean to leave room for the play and 
action of purely personal and arbitrary 
power.... [T]he law is the definition and 
limitation of power.... For, the very idea 
that one man may be compelled to hold his life 
... at the mere will of another, seems to 
be intolerable in any country where freedom 
prevails.... " Yick Wo v. Hopkins, 118 U.S. 
356, 369-70 (1886).

It was the purpose of Furman and its 
progeny to bring capital sentencing within 
the time-honored rule of Law. See, e .g ., 
Gregg v. Georgia, supra, 428 U.S. at 1 92-93. 
It was the promise of Proffitt that the rule



71

of Law would be observed in capital sentencing 
in Florida —  that Florida's statutory proce­
dures would serve "to assure that sentences of 
death will not be 'wantonly' or 'freakishly' 
imposed." Proffitt v. Florida, supra, 428 
U.S. at 260. Both the purpose and the promise 
are defeated by a regime where life or death 
depends on sentencing judges' ability and 
willingness to make up aggravating circum­
stances as they go along. "The most important 
safeguard presented in Fla. Stat. §921.141 ... 
is the propounding of aggravating and mitigat­
ing circumstances which must be determinative 
of the sentence imposed." State v. Dixon, 283 
So.2d 1, 8 (Fla. 1973); Cooper v. State, 336 
So.2d 1 133, 1 1 39 (Fla. 1 9 7 6 ).21/

21/ Following Lockett v. Ohio, supra, Songer v. 
State, 365 So.2d 696 (Fla. 1978), and the 1979 
amendment to the Florida statute (see note 7 supra), 
the full brunt of regularizing the capital sen-



72 -

" [P]ermitting the [sentencer] ... to 
consider whatever evidence of nonstat- 
utory aggravating circumstances the 
prosecution might desire to present or 
the [sentencer] ... might discern in 
the testimony opens too wide a door 
for the influence of arbitrary factors 
on the sentencing determination.... 
[S]anctioning consideration of statu­
tory aggravating factors plus anything 
else the [sentencer] ... determines 
to be aggravating . . . broadens 
discretion rather than channels it and 
obscures any meaningful basis for 
distinguishing cases in which the 
death penalty is imposed from those in 
which it is not."

Henry v. Wainwright, 661 F.2d 56, 59 (5th
Cir. 1981)(emphasis in original), vacated
on other grounds, ___ U.S. ___, 73 L.Ed.2d
1326 (1982), adhered to on remand, 686 F.2d 
311 (5th Cir. 1982).22/

21/ (continued)
tencing process and assuring consistency in its 
results now falls, of course, on the aggravating 
circumstances alone.
22/ Accord, Bell v. Watkins, F.2d , No. 
81-4358, slip op. at 962-65 (5th Cir. Dec. 6, 1982); 
Proffitt v. Wainwright, 685 F.2d 1227, 1266-67 (11th 
Cir. 1982); Jordan v. Watkins, 681 F.2d 1067, 1082 
reh. and reh. en banc denied, 688 F.2d 395 (5th Cir. 
1982); State v. Bartholomew, ___ P.2d ___, No.



73

The same unleashing of discretion to 
the vagaries of caprice results when 
"statutory" aggravating circumstances are 
allowed to be m a n i p u l a t e d  to suit the 
sentencing result desired. Findings of 
statutory aggravating circumstances made by 
expanding the definitions of those circum­
stances ad hoc to fit the facts, or by 
inventing facts to fit the definitions, 
simply flout the constitutional command of 
guided discretion. This too is quintessen- 
tially arbitrary. "Even in applying 
permissible standards, officers of a State 
cannot [justify their conduct by those 
standards] ... when there is no basis for 
their finding that [the standard applies] 

or when their action is invidiously 
discriminatory." Schware v. Board of Bar

22/ (continued)
48346-9, slip op. at 24-30 (Sup. Ct. Wash. Nov. 24, 
1982) (en banc); but see Harris v. Pulley, F.2d 
__ , No. 82-5246 (9th Cir. Sept. 16, 1982).



74

Examiners, 353 U.S. 232, 239 (1957). This 
Court recognized as much by invalidat­
ing the death sentence imposed under a 
rubber yardstick in Godfrey v. G e o rgia, 
supra. There it was unclear whether a 
baseless factual finding had been made to 
bring Godfrey within an adequately defined 
statutory aggravating c i r c u m s t a n c e  or 
whether the definition of the circumstance 
had been enlarged sub silentio to bring 
Godfrey within it; but the constitutional 
consequence was the same. "The circum­
stances of this case ... do not satisfy 
the criteria laid out by the Georgia 
Supreme Court itself," 446 U.S. at 432, and 
Godfrey's sentence was therefore unconsti­
tutional —  whether regarded as the result 
of arbitrary factfinding or as the result 
of "'standards so vague that they would 
fail adequately to channel . . . sentencing 
decision patterns,'" id. at 428.



75

Indeed, the Florida Supreme Court has 
essentially a c k n o wledged all of these 
points. Because of the key role that the 
statutory aggravating circumstances play 
in the c o n s t i t u t i o n a l i t y  of Florida's 
capital sentencing system, that court 
has attempted to preserve the integrity of 
the system by confining consideration of 
aggravating circumstances to those enumer­
ated in the statute, and by circumscribing 
the application of the statutory aggravat­
ing circumstances so as to avoid an over­
broad or vague construction. Despite 
its early 4-to-3 decision in Sawyer v. 
State, 313 So.2d 680 (Fla. 1975), affirming 
a death sentence based on nonstatutory 
aggravating circumstances,— ^the Florida

23/ Sawyer's death sentence was subsequently 
reduced to life by the trial court on a motion to 
reduce sentence under Fla. R. Crim. Proc. 3.800. 
Sawyer v. State, No. 73-1001-C (Cir. Ct. 11th Jud. 
Cir., Dade Cty, Fla., Aug. 6, 1976). The Florida 
Supreme Court has since ruled that such motions are



76

Supreme Court has since held 
that nonstatutory aggravating 
may not be considered in the 
a death sen t e n c e . — — / The

consistently 
circumstances 
imposition of 
use of non-

23/ (continued)
unavailable to death-sentenced defendants. In re 
Florida Rules of Criminal Procedure, 343 So.2d 1247, 
1264 (Fla. 1977).
24/ See, McCampbell v. State, So.2d , 1982 
Fla. Law Wkly, SCO 492 (No. 57,026) (Oct. 28, 1982) 
(trial judge should not have relied upon the failure 
of defendant to acknowledge guilt or demonstrate re­
morse, and on the suspected procurement of perjur­
ious alibi testimony because those factors are not 
"statutorily-enumerated aggravating circum­
stance [s]"); Blair v. State, 406 So.2d 1103, 
1108 (Fla. 1981)(premeditated design); Odom v. 
State, 403 So.2d 936, 942 (Fla. 1981) (arrests and 
charges not culminating in criminal convictions); 
Perry v. State, 395 So.2d 170, 174-75 (Fla. 1980) 
(pending criminal charges for which there was no 
conviction); Spaziano v. State, 393 So.2d 1119, 
1122-23 (Fla. 1981) (convictions for nonviolent 
offenses and misdemeanors, and charges for which 
there was no conviction); Brown v. State, 381 So.2d 
690, 695-96 (Fla. 1980)(premeditated design); Lucas 
v. State, 376 So.2d 1149, 1153 (Fla. 1979) ("hein­
ousness" of attempted murders of others during 
incident in which victim was killed); Miller v. 
State, 373 So.2d 882, 885 (Fla. 1979)(defendant's 
incurable and dangerous mental illness coupled with 
possibility of future release if a life sentence 
were imposed); Menendez v. State, 368 So.2d 1278, 
1281 & n.12 (Fla. 1979) (defendant looted body,



77

statutory aggravating factors was found to 
be unacceptable, not only because it 
"indicates that the weighing process 
dictated by statute was not followed,"
Mikenas v._S t a t e , 367 S o . 2d 606, 610
(Fla. 1979), but more importantly because 
it affronts the purpose of the statute "to

24/ (continued)
pointed gun at witness who fled, and showed no signs 
of remorse); Mikenas v. State, supra, 367 So.2d 
at 610 (substantial history of prior nonviolent 
criminal activity considered as an aggravating 
circumstance, rather than merely precluding consid­
eration of a mitigating circumstance); Riley v . 
State, 366 So.2d 19, 21 & n.2 (Fla. 1978) (no re­
morse; prolonged premeditation); Elledge v. State, 
supra, 346 So.2d at 1102 (criminal charge for which 
there was not yet a conviction); Huckaby v. State, 
343 So.2d 29, 33 & n.11 (Fla. 1977)(defendant was a 
"danger and menace to society" and had a "propensity 
to commit rape"); Purdy v. State, 343 So.2d 4, 6 
(Fla. 1977)("the specified statutory circumstances 
are exclusive; no others may be used [to impose a 
death sentence]"); Provence v. State, 337 So.2d 783, 
786 (Fla. 1976)("mere arrests or accusations" 
not reduced to criminal convictions). In two other 
cases nonstatutory aggravating circumstances were 
found by the trial court but not commented upon by 
the Florida Supreme Court. Proffitt v. Florida, 315 
So.2d 461, 466 (Fla. 1975), aff'd sub nom. Proffitt 
v. Florida, 428 U.S. 242 (1976) (death sentence 
affirmed); Thompson v. State, 328 So.2d 1, 6 (Fla. 
1976)(death sentence reversed on other grounds).



78

meet the c o n s t itutional infirmity of 
capital sentencing procedures explored in 
Furman v. Georgia [by] ... limit[ing] the 
unbridled exercise of judicial discretion 
in cases where the ultimate penalty is 
possible," Provence v. State, supra, 337
S o . 2d at 786. Similarly, the Florida 
Supreme Court has both interpreted statu­
tory aggravating circumstances and reviewed 
the factual underpinnings of findings of 
them with a view to p r e v e n t i n g  their 
indiscriminate application. E .g. , Menendez 
v. State, 368 So.2d 1278, 1281-82 (Fla.
1979); Riley v. State, 366 So.2d 19, 21
(Fla. 1979).

These restrictions upon the "unbridled 
exercise of judicial discretion" are no 
less important in cases where one unques­
tionably valid s t a tutory aggravating  
circumstance has been found. The Florida 
Supreme Court has forbidden the consid-



79

eration of nonstatutory aggravating circum­
stances in such cases, as well as in cases
where no valid sta t u t o r y  aggravating

2 5/circumstance is proved.—  It is true
that the Florida Supreme Court has not 
invariably found that a trial judge's 
consideration of nonstatutory or improperly 
applied statutory aggravating circumstances 
was reversible error —  a point to which we 
shall return in Part II of this Brief,

25/ E.g., Moody v. State, 418 So.2d 989, 995 (Fla. 
1982)(although the "trial court's finding of the 
aggravating circumstances that this capital felony 
was atrocious, heinous, or cruel and that it was 
committed for pecuniary gain are [sic] entirely 
appropriate as evidenced by the record ..., the 
trial court erroneously considered an aggravating 
circumstance not supported by the evidence ... "); 
Menendez v. State, supra, 368 So.2d at 1281, 1282 
("three ... aggravating circumstances found by the 
trial judge should not have been considered, since 
they are outside the list of factors enumerated 
in our death penalty statute"; these "findings are 
stricken," despite the fact that there is "one 
properly found aggravating circumstance"); Riley v. 
State, 366 So.2d at 21-22 (two "aggravating circum­
stances clearly must be disregarded as not having 
been listed in Section 921.141(5)," although two 
other statutory aggravating circumstances were 
properly found).



80

infra. But it has recognized that any such 
consideration ijs error, even in a case 
where one or more valid statutory aggravat­
ing circumstances have been established.

This plainly must be the Eighth 
Amendment rule as well. For the thrust 
of all of this Court's Eighth Amendment 
decisions in the past decade is to insure a 
proper chanelling of discretion in the 
process of selecting, from among convicted 
defendants eligible for the death penalty, 
those who must actually die. E .g ., Gregg v.

£ £Li a. ' ' 4 2 8 U.S. at 197-99. A
narrowing of the class of defendants who 
are eligible for "cons i d e r a t i o n  as a 
candidate for the death penalty," ji d . 
at 199, does not obviate constitutional 
concern about the method for choosing among 
those who remain candidates. E.g., Roberts 
(Harry) v. Louisiana, 431 U.S. 633 (1977)
(per curiam); Roberts (Stanislaus]_v^



81

Louisiana, 428 U.S. 325, 331-36 (1976).
The finding of a valid statutory 

aggravating circumstance functions to make 
the defendant a candidate. Such a finding 
is made in the cases of all candidates, and 
therefore cannot serve to distinguish among 
them. If, upon the finding of a valid 
statutory aggravating circumstance, the 
door is thrown open to consideration of a 
witch's brew of nonstatutory aggravating 
circumstances and lawlessly applied statu­
tory aggravating circumstances in addition 
to the valid one, then the ultimate 
selection among death-eligible candidates 
is left exactly where Furman found it. 
This is particularly true in Florida, where 
at least one statutory aggravating circum­
stance is almost universally present in 
every first degree murder case. First 
degree murder requires a finding of either 
premeditation or a killing in the course of



82 -

several enumerated felonies (Fla. Stat. 
§782.04(1)(a)); enumerated felony-murder is 
(with one minor exception) always an 
aggravating circumstance under Fla. Stat.
§ 921.141(5) ( d ) ; and premeditated murder 
was found by Judge Olliff —  and has 
sometimes been found by the Florida Supreme 
Court —  adequate to trigger the statutory 
aggravating circumstance of §921.141(5)(h ) . 
See note 17 supra.— ^

The Eighth Amendment requires that 
a "capital sentencing scheme ... provide 
a 'meaningful basis for distinguishing the 
few cases in which [the penalty] is imposed 
from the many cases in which it is not.'" 
Godfrey v. Georgia, supra, 446 U.S. at 427, 
quoting Gregg v. Georgia, supra, 428 U.S.
at 313 (opinion of Justice White). No such

26/ In addition, under the 1979 amendment of the 
Florida statute described in note 7 supra, premed­
itated murder will ordinarily trigger the aggravat­
ing circumstance of §921.141(5)(i).



83

basis is provided by a system which casts 
the runes of lawful, lawless statutory, and 
nonstatutory aggravating circumstances, 
stirs them with the sentencing judge's most 
intense emotive recollections, and reads 
the defendant's death in them. Proffitt 
anticipated that under the Florida statute, 
"after a person is convicted of first-de­
gree murder, there shall be an informed, 
focused, guided, and objective inquiry into 
the question whether he should be sentenced 
to death." Proffitt v. Florida, supra, 428 
U.S. at 259. Elwood Barclay waits for this 
kind of sentencing process.

II. THE UNCONSTITUTIONAL PROCESS THAT 
PRODUCED BARCLAY'S DEATH SENTENCE 
REQUIRES ITS REVERSAL

The question remains whether Barclay 
is entitled to the reversal of his death 
sentence, and to a new and constitutionally 
proper sentencing determination at the



84 -

trial level, because of the Eighth Amend­
ment violations shown by this record. 
That question implicates Florida's "Elledge 
rules," which we first describe and then 
discuss below.

A. The "Elledge rules"
In Elledge v. State, 346 So.2d 998 

(Fla. 1977), the Florida Supreme Court 
announced a pair of rules to govern its 
review of cases in which a death sentence 
is marred by the trial judge's improper 
consideration of nonstatutory or legally 
erroneous statutory aggravating circum­
stances. First, reversal is required in 
such cases, despite the presence of one 
or more valid statutory aggravating circum­
stances, if a mitigating circumstance was 
found. That is so, the court reasoned, 
because the Florida statute requires a 
weighing of valid aggravating circumstances 
against mitigating circumstances, and



85

"regardless of the existence of other 
authorized aggravating factors we must 
guard against any unauthorized aggravating 
factor going into the equation which might 
tip the scales of the weighing process in 
favor of death." Id. at 1 003.-2-^/ Second,

27/ Accord, Moody v . State, 418 So.2d 989, 995 
(Fla. 1982) (finding that murder was committed 
during arson, Fla. Stat. §921.141(5)(d) was not 
supported by the evidence; death sentence vacated 
and case remanded for resentencing); Blair v. State, 
406 So.2d 1 103, 1 108-09 (Fla. 1981)(improper 
finding of nonstatutory aggravating circumstance of 
"premeditation;" "especially heinous, atrocious or 
cruel" and "great risk of death" aggravating circum­
stances were misapplied; death sentence vacated and 
life sentence imposed after comparing case to 
others); Lewis v. State, 377 So.2d 640, 646-47 
(Fla. 1979) ("great risk of death" and "especially 
heinous, atrocious or cruel" aggravating circum­
stances were erroneously applied; death sentence 
vacated and case remanded for resentencing); Lucas 
v. State, 376 So.2d 1149, 1153-54 (Fla. 1979) 
("especially heinous, atrocious or cruel" aggrava­
ting circumstance was misapplied; death sentence 
vacated and case remanded for resentencing); Fleming 
v. State, 374 So.2d 954, 957-59 (Fla. 1979) 
(same fact was improperly used to support two 
aggravating circumstances; "especially heinous, 
atrocious or cruel" aggravating circumstance was 
misapplied; death sentence vacated and case remanded 
for resentencing); Menendez v. State, 368 So.2d 
1278, 1281-82 (Fla. 1979) (improper findings of



86

reversal is not required if one or more 
valid aggravating circumstances have been

27/ (continued)
three nonstatutory aggravating circumstances; 
"especially heinous, atrocious or cruel" and "avoid 
arrest" aggravating circumstances were misapplied; 
death sentence vacated and case remanded for resen­
tencing); Mikenas v. State, supra, 367 So.2d at 610 
(nonstatutory aggravating circumstance found; 
death sentence vacated and case remanded for resen­
tencing); Riley v. State, 366 So.2d 19, 21-22 (Fla. 
1978) (same fact was improperly used to support two 
aggravating circumstances; improper findings of two 
nonstatutory aggravating circumstances; "especially 
heinous, atrocious or cruel" aggravating circum­
stance was misapplied; death sentence vacated and 
case remanded for resentencing).

Where the sole sentencing error committed was a 
different and less serious one known as "doubling" 
—  i.e., the use of the same fact to support two 
aggravating factors such as robbery, Fla. Stat. 
§921.141 (5)(d), and pecuniary gain, Fla. Stat. 
§921.141(5)(f) —  the Florida Supreme Court has held 
that reversal is not invariably required. Vaught v. 
State, 410 So.2d 147, 148-49 (Fla. 1982); Hargrave 
v. State, 366 So.2d 1, 4 (Fla. 1978). Also, in 
Brown v. State, 381 So.2d 690, 696 (Fla. 1980), the 
first Elledge rule was found not to require reversal 
where the only mitigating circumstance, the fact 
that the defendant was twenty-three years old at the 
time of the offense, had been explicitly assessed by 
the trial judge as having "only ’seme minor signifi­
cance.'" Zeigler v. State, 402 So.2d 365, 376-77 
(Fla. 1981), appears to be based on the premise that 
the trial judge made a similar finding by implica­
tion.



87

found, "where there are no mitigating cir­
cumstances . The absence of mitigating 
circumstances becomes important, because, 
so long as there are some statutory aggra­
vating circumstances, there is no danger 
that nonstatutory circumstances have served 
to overcome the mitigating circumstances 
in the weighing process which is dictated 
by our statute." _Id. at 1 002-03 (emphasis 
in original).

B. Nonarbitrary Application Of 
The First Elledge Rule 
Requires the Vacation of 
Barclay's Death Sentence

In Elledge, it did "not expressly 
appear from the specific findings of fact 
that the trial judge found the existence of 
mitigating circumstances. His written 
findings expressly negate the existence of 
certain mitigating circumstances." _Id. at 
1003. But because his sentencing order 
recited that, "'after weighing the aggravat-



88

ing and mitigating circumstances,'" he had 
reached the "'opinion that insufficient 
mitigating circumstances exist to outweigh 
the aggravating circumstances,'" ibid., the 
Florida Supreme Court concluded that he 
"implicitly found some mitigating circum­
stances to exist," i b i d , (emphasis in 
original).

In Barclay's case, there were two 
findings regarding the presence of mitigat­
ing circumstances. The first, by the jury, 
was a finding that "sufficient mitigating 
circumstances do exist which outweigh any 
aggravating circumstances...." (S.T. 180). 
The second, by Judge Olliff, was a finding 
that there are no mitigating circumstances 
present in the case.— / (J.A. 1 07-20).
How are the Elledge rules to be applied

28/ Judge Olliff has never found a single mitigat­
ing circumstance in any of the cases in which he 
sentenced a defendant to death, including all four 
cases where the jury recommended life. (J.A. 17-32, 
107-20; A. 17a-28a, 50a-60a).



89

in this situation?
The Florida Supreme Court answered 

that question in Lewis v. State, 398 So.2d 
432 (Fla. 1981), a case indistinguishable 
from Barclay's. In Lewis, the trial judge 
found four statutory aggravating circum­
stances and "no mitigating circumstances." 
Id. at 438. The Florida Supreme Court 
upheld one aggravating circumstance and 
found three unsupported by the record. 
Ibid. It then disposed of the appeal as 
follows:

"The jury recommended a sentence 
of life imprisonment. The trial court 
judge's sentencing findings contain a 
discussion of each of the statutory 
mitigating circumstances and a state­
ment that none of them are applicable 
to the facts of this case. However, 
the jury is not limited, in its 
evaluation of the question of sen­
tencing, to c o n sideration of the 
statutory mitigating circumstances. 
It is allowed to draw on any consider­
ations reasonably relevant to the 
question of mitigation of punishment. 
Lockett v. Ohio, 438 U.S. 586 ... 
(1978); Songer v. State, 365 So.2d 
696 (Fla. 1978) ___  Since three of



90

the trial court's four aggravating 
circumstances have been found to be 
erroneous, we remand the case for 
reconsideration of sentence by the 
trial court judge so that the single 
established aggravating circumstance 
can be weighed against the recommenda­
tion of the jury."

Ibid.
Lewis would thus appear to control the 

present case,— ^except for the fact that

29/ Barclay's jury could properly take account of 
several nonstatutory mitigating circumstances 
"reasonably relevant to the question of mitigation 
of punishment" within Lockett and Lewis, supra. For 
example, Barclay was gainfully employed and the 
father of several children. (See page 18 supra.) 
Although Barclay was a principal to the homicide, he 
did not inflict any mortal wounds and was subser­
vient to Dougan, who planned, directed and committed 
the murder. (T.T. 1356-61, 1371-2, 1385). See the 
dissent of Justice Boyd in Barclay v. State, supra, 
343 So.2d at 1242 (J.A. 74-75). The Florida Supreme 
Court has often justified imposing a death sentence 
on the dominant figure in a homicide while other 
participants, both principals and accessories, 
receive lesser sentences. See, e.g., Bolender v.
State, ___ So.2d ___, 1982 Fla. Law Wkly, SCO 490
(No. 59,333) (Oct. 28, 1982) (coparticipant received 
concurrent life sentences, defendant's death 
sentence justified because he "acted as the leader 
and organizer ... and inflicted most of the torture 
leading to the victims' deaths"); Messer v. State, 
403 So.2d 341 (Fla. 1981) (coparticipant sentenced 
to thirty years; defendant's death sentence justi­
fied because he was the leader and inflicted the



91

the Florida Supreme Court has reached an 
apparently contrary result in several other 
cases, without attempting to reconcile them 
with Lewis or vice versa. See Bolender v.

29/ (continued)
mortal blows, while accomplice inflicted only 
nonfatal wounds); Tafero v. State, 403 So.2d 355, 
362 (Fla. 1981) (coparticipant received life sen­
tence; defendant's death sentence justified because 
he "did the shooting and probably was the leader of 
the group"); Jackson v. State, 366 So.2d 752, 757 
(Fla. 1978) (coparticipant received life sentence; 
defendant's death sentence justified because he was 
the "dominating" actor); Salvatore v. State, 366 
So.2d 745, 751-52 (Fla. 1978) (coparticipant
sentenced to term of years; defendant's death 
sentence justified because he formulated the plan to 
kill and was the actual perpetrator, accomplice 
refrained from beating the victim until after the 
defendant struck the first blows); Smith v. State, 
365 So.2d 704, 705, 708 (Fla. 1978) (coparticipant 
sentenced to concurrent life sentences; defendant's 
death sentence justified because he originated the 
idea of setting the car on fire, which killed the 
victim, directed the coparticipant to ignite the 
car, and generally "dominated" the coparticipant 
that evening); Meeks v. State, 339 So.2d 186 (1976) 
(coparticipant received life sentence; defendant's 
death sentence justified because defendant inflict­
ed mortal wounds and "was the dominant figure in 
this criminal episode").

(continued)



92-

29/ (continued)
The jury might additionally have considered 

that death would be an excessive and disproportion­
ate punishment for Barclay when compared with the 
prison sentences of Hearn, Crittendon and Evans, who 
were all principals to the homicide. According to 
Hearn's testimony, all five young men knew what 
Dougan had planned by the time they picked Orlando 
up, and none protested the plan. (T.T. 1359-61). 
Although there is no evidence that either Hearn or 
Crittendon physically participated in the homicide, 
Hearn provided the murder weapon. (T.T. 1356-58, 
1550). Evans was said to have stabbed the victim 
with the pocketknife, as did Barclay. (T.T. 1183). 
The jury obviously differentiated the relative 
culpability of the participants by finding Critten­
don and Evans guilty of second degree murder, 
recommending life for Barclay, and reserving the 
death sentence for Dougan. To the extent that a 
desire for retribution is involved in such a 
decision, it may well be that the jury believed the 
forfeit of one life for the life of the victim was 
sufficient expiation.

Nor can this jury be suspected of having had 
any substantial misgivings about the death penalty. 
To the contrary, during jury selection seven jurors 
were excused for cause because of their consci- 
encious scruples against the death penalty (V.T. 
490, 533, 538, 546, 579, 586-87, 594), and the 
prosecutor used his perenptory strikes to eliminate 
all other prospective jurors who had expressed any 
hesitation about imposing a death sentence, but who 
could not be excused for cause under the standards 
enunciated in Witherspoon v. Illinois, 391 U.S. 510 
(1968) (V.T. 198-207, 212, 215; 234-35; 237-40; 
299-300, 366; 432-37; 492-94, 502-03; 494-96, 
502-03; 562-64, 568).



93

State, ___  So. 2d ___ , 1982 Fla. Law Wkly,
SCO 490 (No. 59,333) (Oct. 28, 1982);
White v. State, 403 So.2d 331, 336-40 (Fla. 
1981); Johnson v. State, 393 So.2d 1069, 
1072-74 (Fla. 1980); Dobbert v. State, 375 
So.2d 1 060, 1 070-71 (Fla. 1979). This is a 
not infrequent phenomenon in Florida capi­
tal appeals, where many of the protective 
pronouncements which we have previously 
described seem to be turned on and off 
from case to case without notice or expla­
nation. See notes 14, 17 s u p r a . iLQ/
While this might do if no federal constitu­
tional rights were involved, such a prac­
tice cannot justify a state appellate 
court's episodic refusal to vindicate 
federal claims. See, e .g. , Barr v. City of

30/ Where explanations have been offered for 
divagations, they have sometimes been less convinc­
ing than their absence. See, e.g., Songer v. State, 
365 So.2d 696, 700 (Fla. 1978), holding that Cooper 
v. State, 336 So.2d 1133, 1139 (Fla. 1976), did not 
say what any fair reading of Cooper makes it ines­
capably plain that Cooper did in fact say.



94 -

Columbia, 378 U.S. 146, 149-50 (1964) and
cases cited; N.A.A.C.P. v. Alabama ex rel. 
Patterson, 357 U.S. 449, 455-58 (1958). It 
should particularly not be permitted where 
the substance of the federal claim in issue 
is a right to have the penalty of death 
administered "with reasonable consistency, 
or not at all," Eddings v. Oklahoma, supra, 
455 U.S. at 112, and where the protection 
of that right depends upon death sentences 
being "conscientiously reviewed by a court 
which ... can assure consistency, fairness, 
and rationality in the evenhanded operation 
of the state law," Proffitt v. Florida, 
supra, 428 U.S. at 259-60. Since there is 
no rational or evenhanded way to treat 
Barclay's case differently than Lewis', 
B a r clay 's death sentence too must be 
vacated and resentencing ordered.

C. Application Of The Second 
Elledge Rule To Salvage 
Barclay's Death Sentence 
Would Itself Be Federally 
Unconstitutional



95

There are several sufficient reasons 
why the Elledge rules cannot constitution­
ally be applied to affirm Barclay's death 
sentence on the theory that, despite Lewis, 
Judge Olliff's failure to find any mitigat­
ing circumstances requires affirmance under 
Elledge.

First, if Lewis is regarded as having 
been overruled sub silentio and not merely 
capriciously disregarded by the contrary 
decisions in Bolender, White, Johnson and 
Dobbert, then the Elledge rule requiring 
affirmance in the absence of a finding of 
mitigating circumstances plainly falls 
afoul of Lockett v. O h i o . For Lewis is 
the only case in which the Florida Supreme 
Court has reversed a death sentence under 
Elledge because of the existence of non- 
statutorv mitigating circumstances. In 
Ford v . State, 374 So.2d 496 , 503 (Fla.
1979), the court expressly refused to



96

reverse a death sentence despite "error 
in assessment of some of the statutory 
aggravating factors," because "there being 
no mitigating factors present, death is 
presumed to be the appropriate penalty 
[under] Elledge It did so while
simultaneously acknowledging the "testimony 
favorable to appellant's character and 
prior behavior presented by the defense in 
mitigation during the sentencing trial." 
Ibid. Thus, it appears that —  save for 
Lewis —  nonstatutory mitigating factors 
which can (and, indeed, must) be considered 
by the advisory jury and sentencing judge 
are not "mitigating circumstances" within 
the E l l e d g e rules.— — / Such rules can 
simply not be squared with Lockett.

31/ See Moody v. State, 418 So.2d 989, 995 (Fla. 
1982). In Moody, the Florida Supreme Court identi­
fied two defects in the sentencing proceedings: (1) 
an improperly applied aggravating circumstance; 
and (2) a possible failure of the sentencing 
judge to consider nonstatutory mitigating evidence 
that had been presented to the jury. In reversing



97

Second, the announced "state-law 
premises"— / of the Elledge rules estab­
lish their unconstitutionality for a reason 
that appears a fortiori from Justice 
Stevens' recent observations concerning a

31/ (continued)
on account of both defects, the court explicitly 
distinguished between statutory and nonstatutory 
mitigating circumstances, applying the Elledge 
rule to the former but not the latter: "Since the 
trial court erroneously considered an aggravating 
circumstance not supported by the evidence, since 
there was a valid statutory mitigating circumstance, 
and since the trial judge may not have considered 
nonstatutory mitigating factors, we set aside the 
death sentence and remand . ..." Ibid. See also 
Enmund v. State, 399 So.2d 1362, 1370-71, 1372-73 
(Fla. 1981), rev'd on other grounds sub nom. 
Enmund v. Florida, U.S. , 73 L.Ed.2d 1140 
Tl982) (finding that the trial judge improperly 
relied upon two statutory aggravating circumstances 
not supported by the evidence; also finding that the 
defendant was not the triggerman and was not even 
present at the scene when a coparticipant in a 
robbery scheme shot the victims, and that "the 
evidence does not establish that [defendant] intend­
ed to take life"; but affirming the death sentence 
anyway, because there were two valid "aggravating 
circumstances ... and no mitigating circumstances"). 
See generally, Enmund v. Florida, supra, 73 L.Ed.2d 
at 1170-73 (dissenting opinion of Justice O'Connor).
32/ Zant v. Stephens, U.S. ___, 72 L.Ed.2d 222,
226 ( 1982 ) .



~ 98 -

less glaring deficiency in North Caro­
lina's capital sentencing procedures.
Smith v. North Carolina, ___  U.S. , 51
U.S.L.W. 3418 (U.S., Nov. 29, 1982)(opin- 
ion of Justice Stevens on denial of cer­
tiorari) . E 1 1 e d g e says that findings
of nonstatutory or other improper aggravat­
ing circumstances may be disregarded if 
there are no mitigating circumstances and 
"there are some [valid] statutory aggravat­
ing circumstances, [because] there is no 
danger that nonstatutory circumstances have 
served to overcome the mitigating circum­
stances in the weighing process which is 
dictated by our statute." E lledge v. 
State, supra, 346 So.2d at 1 003 (emphasis
in original). This necessarily means that, 
in the absence of mitigating circumstances, 
the statutory "weighing process" consists 
of weighing zero in mitigation against any 
thing at all in aggravation: it does not



99

matter w hat in aggravation, since the 
whole point of Elledge's reasoning is that 
the quantity and quality of aggravation is 
irrelevant "so long as there are some stat­
utory aggravating circumstances," ibid., 
and nothing mitigating to weigh against 
them. But death may not be thus decreed by 
a process which asks merely whether aggra­
vation outweighs mitigation, without asking 
also whether the amount and kind of aggra­
vation justify a capital sentence. To do 
so would require death even though the 
aggravation is a peppercorn's worth —  not 
enough to establish that the defendant is 
any more deserving of a death sentence than 
any other capital offender, and therefore 
not enough "to distinguish this case ... 
from the many cases in which [death] ... 
was not [inflicted]," Godfrey v. Georgia, 
supra, 446 U.S. at 433 -- because, in
any situation to which Elledge1 s "weighing



100

process" applies, this indistinguishable 
peppercorn necessarily outweighs zero in 
mitigation. Such a "weighing process" 
misses the whole point, and violates the 
constitutional premise, of this Court's 
repeated insistence upon an individualized 
sentencing inquiry in capital cases "in 
order to ensure the reliability, under 
Eighth Amendment standards, of the determi­
nation that 'death is the appropriate 
punishment in a specific case.'" Lockett 
v . O h i o , supr a , 438 U.S at 601, quoting
Woodson v. North Carolina, 428 U.S. 280,
305 (1976). Under Woodson and Lockett, the 
ultimate, indispensable constitutional 
inquiry must be the appropriateness of a 
death sentence for the defendant at bar, 
not some abstract weighing of scintillas 
against ciphers.

Third, if the "weighing process" 
envisaged by the Florida statute is to



101

escape the preceding objection, it must 
be because the sufficienc y , and not 
merely the existence, of aggravating 
circumstances is to be considered, even 
where no mitigating factors are found. In 
Proffitt, this Court clearly assumed that 
that was the way in which the Florida 
statute worked, describing it (in its own 
words) as requiring that a death sentence 
be based upon the two findings "'(a) [t]hat 
sufficient [statutory] aggravating circum­
stances exist ... and (b) [t]hat there are 
insufficient [statutory] mitigating circum­
stances ... to outweigh the aggravating 
circumstances. Proffitt v. Florida,
supra, 428 U.S. at 250 (bracketed material 
and elipses in original; emphasis added). 
Upon this assumption, Elledge stands for 
the proposition that a trial judge's ul­
timate finding that "sufficient [statutory] 
aggravating circumstances exist" to call



102

for the death penalty must be affirmed, 
despite the invalidity of a substantial 
part (amounting in Barclay's case to most) 
of the specific findings of aggravating 
circumstances which underlie the general 
one. That proposition cannot be defended 
c o n s i s t e n t l y  with either this Court's 
d e c isio ns est a b l i s h i n g  the necessary 
procedural framework for protection of 
federal constitutional rights in general 
(i .e . , Stromberg v. California, 283 U.S. 
359 ( 1 931 ), and its progeny)— /or with
the Court's decisions more particularly 
invalidating "procedural rules that 
tended to diminish the reliability of the

33/ See, e.g., Williams v. North Carolina, 317 U.S. 
287, 291-92 (1942); Thomas v. Collins, 323 U.S. 516, 
528-29 (1945); Cramer v. United States, 325 U.S. 1, 
36 n.45 (1945); Termmiello v. Chicago, 337 U.S. 1, 
5 (1949); Yates v. United States, 354 U.S. 298, 
311-12 (1957); Gregory v. Chicago, 394 U.S. 111, 113 
(1969); Street v. New York, 394 U.S. 576, 585-88
(1969) ; Bachellar v. Maryland, 397 U.S. 564, 570-71
(1970) ; Sandstrom v. Montana, 442 U.S. 510, 526 
(1979).



103

[capital] sentencing determination," Beck 
v. Alabama, 447 U.S. 625, 638 ( 1980); see
id. at 638 n.13, citing cases.

We shall not impose upon the Court's 
time by d i s c ussing the S tromberg line 
at any length. It is described, and its 
applicability in the context of capital 
sentencing determinations is examined, in 
Part II of the Brief for Respondent in 
Zant v. Stephens, No. 81-89, at 30-39, and 
in Part I of the Supplemental Brief for 
Respondent in Zant (not yet paginated). 
Here it suffices to say that the rule of 
this Court for half a century under Strom­
berg has invariably been that a general 
verdict or judgment resting ambiguously 
upon a mixture of constitutional and 
unconstitutional premises must be set 
aside, because of the inability of a 
reviewing court to satisfy itself with any 
confidence that the unconstitutional 
Premises did not enter into and decisively



affect the result in the trial court. That
rule applies to general judgments by judges 
as well as to general verdicts by juries 
(see, e .g ., Thomas v. Collins, 323 U.S. 
516, 528-29 (1945)); it applies to cases in 
which the trial-court decisionmaker may 
have relied in part upon the unconstitu­
tional premise, as well as to those in 
which the decisionmaker may have relied 
wholly on the unconstitutional premise (see 
Street v. New Y o r k , 394 U.S 576, 587-88 
(1969)). Since the s u f f i c i e n c y  of a 
totality of aggravating circumstances to 
call for the death sentence is manifestly 
the kind of opaque general judgment with 
which Stromberg and its line are concerned 
—  i .e ., a judgment which, although resting 
on anterior findings of fact, is not 
compelled by any of those but involves the 
additional task of assessing the cumulative 
worth and weight of the underlying individ-



105

ual findings —  this judgment must be 
governed by Stromberg1s familiar principle. 
Since the impact of unconstitutional aggra­
vating-circumstances findings in producing 
a death sentence based partly (and, in 
Barclay's case, preponderated) upon them 
cannot be known, it would flout the Consti­
tution to affirm such a death sentence 
without a remand "to remove any legitimate 
basis for finding ambiguity concerning the 
factors actually considered by the trial 
court," Eddings v. Oklahoma, supra, 455
U.S. at 119 (concurring opinion of Justice 

O'Connor) .
It would also tax the Court's time 

unnecessarily to re-plow here the parallel 
Eighth Amendment ground examined in Part I 
of the Brief for Respondent in Z ant v . 
Stephens, supra at 22-30. The nub of the 
matter is, as Justice O'Connor succinctly 
Put it in her Eddings concurrence, that



106

"this Court has gone to extraor d i n a r y  
meas u r e s  to ensure that the prisoner 
sentenced to be executed is afforded 
process that will guarantee, as much as is 
humanly possible, that the sentence was not 
imposed out of whim, passion, prejudice, or 
mistake." 455 U.S. at 118. Consistently 
with that view of judicial responsibility 
in death cases, "[g]uarding against the 
arbitrary and dicriminatory imposition of 
the death penalty must not become simply a 
guessing game played by a reviewing court 
in which it tries to discern whether the 
improper nonstatutory aggravating factors 
exerted a decisive influence on the sen­
tence determination. The guarantee against 
cruel and unusual punishment demands more." 
Henry v . Wainwr ight, supra , 661 F.2d at
59-60 (footnote omitted).

CONCLUSION
Elwood Barclay's death sentence rests



107

upon a welter of nonstatutory, lawless 
and extraneous findings of aggravating 
circumstances. How much these weighed in 
the trial judge's decision to override a 
jury recommendation of mercy and sentence 
Barclay to die cannot be calculated. The 
risk that they were influential is substan­
tial,— /and was not abated by the Flor­
ida Supreme Court's perfunctory performance 
of its sentencing-review function in this 
case. "When the choice is between life and 
death, that risk is unacceptable and 
incompatible with the commands of the 
Eighth and Fourteenth Amendments." Lockett 
v. Oh i o , s u £ r a , 438 U.S. at 605. The
judgment below should be reversed insofar 
as it upholds the penalty of death, so that 
Barclay may be resentenced in proceedings 
that observe the Constitution.

34/ "We are not at liberty to assume that items 
given such emphasis by the sentencing court did not 
influence the sentence which the prisoner [re­
c e i v e d ] . "  Townsend v. Burke, 3 3 4  U . S .  7 3 6 ,  7 4 0  
(1948).  ------------------------------------



Respectfully submitted

KENNETH VICKERS
437 East Monroe Street 
Jacksonville, Florida 32202

JACK GREENBERG 
JAMES M. NABRIT, III 
JOEL BERGER 
JOHN CHARLES BOGER 
DEBORAH FINS 
JAMES S. LIEBMAN 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

ANTHONY G. AMSTERDAM 
New York University 
School of Law 
40 Washington Square South 
New York, New York 10012

Attorneys for Petitioner

December 29, 1982



APPENDIX



1a

APPENDIX
STATUTORY PROVISIONS INVOLVED

At the time of petitioner's trial, 
the following provisions of the Florida 
Statutes were in effect:
Fla.Stat.Ann. § 782.04.1/

_]_/ Section 782.04 has been amended since 
p e t i t i o n e r ' s  trial. It now pro v i d e s :

782.04 Murder

(1)(a) The u n l a w f u l  k i l l i n g  of a 
h u m a n  being, when p e r p e t r a t e d  from a 
premeditated design to effect the death of 
the person killed or any human being, or 
when committed by a person engaged in the 
p e r p e t r a t i o n  of, or in the a t t e m p t  to 
perpetrate, any arson, sexual battery, 
robbery, burglary, kidnapping, aircraft 
piracy, or unlawful throwing, placing, or 
discharging of a destructive device or 
bomb, or which resulted from the unlawful 
distribution of opium or any synthetic or 
natural salt, compound, derivative, or 
preparation of opium by a person 18 years 
of age or older, when such drug is proven 
to be the proximate cause of death of the 
user, shall be murder in the first degree 
and shall constitute a capital felony, 
p u n i s h a b l e  as p r o v i d e d  in s. 775.082.

(b) In all cases under this 
section, the p r o c e d u r e  set forth in § 
9 2 1 .141 shall be f o l l o w e d  in ord e r  to



2a

782.04 Murder
(1)(a ) The unlawful killing of a human 

being, when perpetrated from a premeditated 
design to effect the death of the person 

killed or any human being, or when commit­
ted by a person engaged in the perpetration 
of, or in the attempt to perpetrate, any 

arson, involuntary sexual battery, robbery, 
burglary, kidnapping, aircraft piracy, or 
unlawful throwing, placing, or discharging

J_/ continued
determine sentence of death or life im­
prisonment .

(2) The unlawful killing of a human
b e i n g ,  w h e n  p e r p e t r a t e d  by an y  act 
i m m e d i a t e l y  d a n g e r o u s  to a n o t h e r  and 
evincing a depraved mind regardless of 
h u m a n  l i f e ,  a l t h o u g h  w i t h o u t  a n y  
premeditated design to affect the death 
of any particular individual, shall be 
m u r d e r  in the s e c on d  d e g r e e  and shall 
constitute a felony of the first degree, 
punishable by imprisonment for a term of 
years not exceeding life or as provided 
in § 775.082, § 775.083, or § 775.084.

(3) When a person is killed in p e r ­
petration of, or in the attempt to perpe­
trate, any arson, sexual battery, robbery, 
burglary, kidnapping, aircraft piracy, 
or unlawful throwing, placing, or discharg-



3a

of a destructive device or bomb, or which 
resulted from the unlawful distribution of 
heroin by a person 18 years of age or older 
when such drug is proven to be the proxi­
mate 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.

J_/ continued
ing of a destructive device or bomb by a 
person other than the person engaged in 
the p e r p e t r a t i o n  or in the a t t e m p t  to 
p e r p e t r a t e  s u c h  f e l o n y ,  th e  p e r s o n  
perpetrating or attempting to perpetrate 
such felony shall be guilty of murder in 
the second degree, which constitutes a 
felony in the first degree, punishable 
by imprisonment for a term of years not 
e x c e e d i n g  life or as p r o v i d e d  in s. 
775.082, s. 775.083, or s. 775.084.

(4) The unlawful killing of a human 
being, when p e r p e t r a t e d  w i t h o u t  any 
d e s i g n  to effect death, by a p e r s on  
e n g a g e d  in the p e r p e t r a t i o n  of, or in 
the attempt to pertetrate, any felony other 
than any arson, sexual battery, robbery, 
burglary, kidnapping, aircraft piracy, 
or unlawful throwing, placing, or dis­
charging of a destructive device or bomb,



4a

(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) W h e n  p e r p e t r a t e d  by any act 
imminently dangerous to another and evinc­
ing a depraved mind regardless of human 
life, although without any premeditated de­
sign to effect the death of any particular 
individual, or when committed in the perpe­
tration of, or in the attempt to p e rpe­
trate, any arson, rape, robbery, burglary, 
kidnapping, aircraft piracy, or the unlaw­
ful throwing, placing, or discharging of a 
destructive device or bomb, except as pro­
vided in subsection (1), it shall be murder 
in the second degree, punishable by im-

_1_/ continued
shall be m u r d e r  in the third d e g r e e  
and shall c o n s t i t u t e  a f e l o n y  of the 
second degree, punishable as provided in 
s. 775.082, s. 775.083, or s. 775.084.



5a

prisonment in the state prison for life or 
for such term of years as may be deter­
mined 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, air­
craft piracy, or the unlawful throwing, 
placing or discharging 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 pro­
vided in § 775.082, § 775.083, or § 775.084.

Fla. Stat. Ann. § 921.141

921.141 Sentence of death or life im­
prisonment for capital felonies; fur­
ther proceedings to determine sentence.
(1) Separate proceedings on issue of 

penalty —  Upon conviction or adjudication 
of g u i l t  of a d e f e n d a n t  of a c a p i t a l



6a

felony, the court shall conduct a separate 
sentencing proceeding to determine whether 
the defendant should be sentenced to death 
or life imprisonment as authorized by §775. 
082. The proceeding shall be conducted 
by the trial judge before the trial jury as 
soon as practicable. If, through impossi- 
b l i t y  or i n a b i l i t y ,  the t r i a l  jury is 
unable to reconvene for a hearing on the 
issue of penalty, having determined the 
guilt of the accused, the trial judge may 
summon a special juror or jurors as pro­
vided in Chaper 913 to determine the issue 
of the impositon of the penalty. If the 
trial jury has b e e n  w a ived, or if the 
defendant pleaded guilty, the sentencing 
proceeding shall be conducted before a jury 
impaneled for that purpose, unless waived 
by the d e f e n d a n t .  In the p r o c e e d i n g ,  
evidence may be presented as to any matter



7a

that the court deems relevant to sentence, 

and shall i n c l u d e  m a t t e r s  r e l a t i n g  to 
any of the a g g r a v a t i n g  or m i t i g a t i n g  
circumstances enumerated in subsections (6) 
and [ 7 ) . —' Any such evidence which the 
court deems to have probative value may 
be received, regardless of its admissiblity 
under the exclusionary rules of evidence, 
provided the defendant is accorded a fair 
opportunity to rebut any hearsay state­
ments. However, this subsection shall not 
be construed to authorize the introduction 
of any evidence secured in violation of the 
constitutions of the United States or the

2/ Since petitioner's trial, this sen­
tence has been amended. It now provides:

In the proceeding, evidence may be 
presented as to any matter that the 
court deems relevant to the nature of 
the crime and the character of the 
defendant and shall include matters 
relating to any of the aggravating or 
mitigating circumstances enumerated in 
subsections (5) and (6).



8a -

S t a t e  of Fl orida. The state and the 
defendant or his counsel shall be permitted 
to present argument for or against sentence 

of death.
(2) A d v i s o r y  sentence by the jury 

After hearing all the evidence, the jury 
shall deliberate and render an advisory 
s e n t e n c e  to the court, b a s e d  upon the 

following matters:
(a) W h e t h e r  s u f f i c i e n t  a g g r a v a t i n g  

c i r c u m s t a n c e s  e x ist as e n u m e r a t e d  in 

subsection (6) ;
(b) W h e t h e r  s u f f i c i e n t  m i t i g a t i n g  

c i r c u m s t a n c e s  e x ist as e n u m e r a t e d  in 

subsection (7), which outweigh the aggra— 
vating circumstances found to exist;—  and

3/ Since petitioner's trial, this sentence 
has been amended. It now provides:

(b) W h e t h e r  s u f f i c i e n t  m i t i g a t i n g  
circumstances exist which outweigh the 
aggravating circumstances found to exist.



9a

(c) B a s e d  on the s e  c o n s i d e r a t i o n s ,  

whether the defendant should be sentenced 

to life [imprisonment] or death.
(3) Findings in support of sentence of 

death —  Notwithstanding 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 i m poses a s e n t e n c e  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 circum­

stances exist as enumerated in subsection 

(6), and
(b) That there are insufficient mitigat­

ing circumstances, as enumerated insubsec­
tion (7), to outweigh the aggravating cir-



10a

4 /c u m s t a n c e s ■' In each case in which the 
court imposes the death sentence, the deter­
mination of the court shall be supported by 
specific written findings of facts based 
upon the circumstances in subsections (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 court shall impose 
sentence of life imprisonment in accordance 
with section 775.08.

(4) Review of judgment and sentence 
The judgment of conviction and sentence 
of death shall be subject to automatic 
review by the Supreme Court of Florida 
within sixty (60) days after certification 
by the s e n t e n c i n g  court of the e n t i r e

4/ Since petitioner's trial, this sen­
tence has been amended. It now provides:

(b) That there are insufficient mitiga­
ting circumstances to outweigh the aggra­
vating circumstances.



1 1a

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 —  Aggra­
vating circumstances shall be limited to 
the following:

(a) The capital felony was committed by 
a person under sentence of imprisonment.

(b) The defendant was previously con­
victed of another capital felonv or of a 
felons i n v o l v i n g  the use or th r e a t  of 
violence to the person.

(c) That defendant knowingly created a 
g r eat risk of d e a t h  to m a n y  persons.

(d) The capital felony was committed 
while the defendant was engaged, or was



12a

an accomplice, in the commission of, or 
an a t t e m p t  to c o mmit, or f l i g h t  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 purpose of avoiding or preventing a 

lawful arrest or effecting an escape from 
custody.

(f) The capital felony was committed for 

pecuniary gain.
(g) The capital felonv was committed to 

disrupt or hinder the lawful exercise of 
any governmental function or the enforce­
ment of laws.

(h) The capital felony was especially
5 /heinous, atrocious, or cruel.—

5/ Since petitioner's trial, Fla. Stat. 
Ann. § 9 2 1 . 1 4 1 ( 5 )  has been a m e n d e d  to



13a

(6) Mitigating circumstances —  Mitigat­

ing circumstances 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 influ­
ence of extreme mental or emotional dis­
turbance.

(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 participation was relatively 
minor.

5 /  continued
include an addtional subsection, "(i)."
Subsection "(i )" provides:

(i) The capital felony was a homicide 
and was committed in a cold, calculated, 
and p r e m e d i t a t e d  m a n n e r  w i t h o u t  any 
pretense of moral or legal justification.



1 4a

(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 require­
ments of law was substantially impaired.

(g) The age of the defendant at the time 
of the crime.



15a

IN THE CIRCUIT COURT, FOURTH 
JUDICIAL CIRCUIT, IN AND FOR 
DUVAL COUNTY, FLORIDA.
CASE NO: 74-2024 DIVISION: S

74-2131

STATE OF FLORIDA
-vs-

WALTER ALBERT CARNES

SENTENCE

The Defendant was indicted for the crimes 
of Murder in the First Degree of LESLIE VAN 
RICH and Rape of his female companion, 
SHIRLEY TOWNSEND.

ESSENTIAL FACTS:

The essential facts brought out at the 
trial were that Shirley Townsend, 35 
and L e s l i e  Van Rich, 27 had been 

living together in Jacksonville with



1 6a

Mrs. Townsend's 11 year old daughter. 
That on May 12 the two adults and 
child were on their way back to their 
native Ohio when their car broke down 
on U.S. 1 about noon.

That the two adults tried to flag down 
several passing trucks for assistance 
but were unsuccessful. At this time 
the defendant, Carnes, drove up and 
volunteered his assistance and showed 
them his Merchant Seaman Identifica­
tion to allay their fears as to his 
intentions.

That defendant offered to drive them 
back to Jacksonville and while doing 
so he got them inside his house upon a 
ruse. While Mr. Rich, Mrs. Townsend 
and the 11 year old girl were inside - 
defendant pulled a pistol, ordered



17a

them to lie on a bed and tied their 
wrists and ankles.

That d e f e n d a n t  cut Ri c h ' s  ankles 
loose, took him to the back portion of 
the house, s c u f f l e d  with him and 
stabbed him twice with a butcher knife 
and while Rich was writhing on the 
floor begging for help - Carnes knelt 
and shot him twice — at close range, 
in the middle of the back and in the 
back of the head, causing instant 
death.

The defendant subsequently twice raped 
Mrs. Townsend - once in the presence 
of her 11 year old daughter. Several 
h o u r s  l a t e r  he fell a s l e e p  after 

consuming alcoholic beverages and Mrs. 
Townsend, who was a prisoner in the 
bed with him escaped with her daughter



18a

- police were called to the scene and 
the defendant arrested.

The Jury of 12 people found the defend­
ant Guilty of Murder in the First Degree 

of Rich and Rape of Mrs. Townsend, and 
the case was passed for Pre-Sentence 
I n v e s t i g a t i o n  and for Sen t e n c e .

The Court having heard all the evidence in 
this case and having previously heard and 
denied Motion for New Trial - does hereby 
adjudge the defendant guilty of each crime 
of w h i c h  he has b e e n  found g u i l t y  and 
sentences him as follows:

A. As to the crime of Rape, I impose 
the maximum sentence of Life Imprison­
ment to run consecutive to the sen­
tence imposed below herein for the 
crime of Murder in the First Degree.

B. As to the crime of Murder in the



19a

First Degree The Court imposes the 
maximum possible sentence requiring 
the forfeit of the life of defendant.

C. Ordinarily it would be a useless 
act to run the maximum sentence for 
Rape c o n s e c u t i v e  to the m a x i m u m  
s e n t e n c e  for M u r d e r  in the First 
Degree. This is done in this case for 
the reason that there are now, before 
the Courts, challenges to the maximum 
penalty in First Degree Murder cases. 
Should such challenges prevail this 
Court would re-impose the maximum 
p o s s i b l e  s e n t e n c e  for M u r d e r  in 
the First Degree and run the maximum 
possible sentence for Rape consecu­
tive thereto.

Before imposing the sentence for Murder in 
the First Degree, the Court has closely 
examined and written its findings as to



20a

each of the elements of aggravation and/or 
mitigation which are set forth in Florida 
Statutes and which were guide-lines for the 
Jury in considering its Advisory Sentence.

The Court has summarized the facts as brought 
out in the trial and in the Pre-Sentence 
Investigation Report and applied them to each 
element of aggravation and/or mitigation 
where applicable.

In summarizing these elements the Court has 
listed them in reverse order by considering 
first the elements of mitigation.

MITIGATING CIRCUMSTANCES
A. WHETHER DEFENDANT HAS NO SIGNIFICANT 

HISTORY OF PRIOR CRIMINAL ACTIVITY.

FACT;
There are several misdemeanor arrests
shown on Defendant's Rap Sheet most



21a

of which do not show a disposition. 
His first arrest is shown to be in 
1 963 - but s i g n i f i c a n t l y  he was 
arrested for the felony of (CCF) 
carrying a concealed firearm on May 4,
1 974, which was nine days before the 
crimes of which he now stands con­
victed. (See Rap Sheet EXHIBIT #1.)

FACT:

In addition the charges of which he 
stands convicted there is pending in 
this Court a charge of Assault to 
Murder wherein defendant is charged 
with assault to murder in the first 
d e g r e e  upon his e s t r a n g e d  wife, 
Catherine Carnes, on May 3, 1974, by 
a s s a u l t i n g  her with a gun. (See 
photocopy of Information - attached 
as EXHIBIT #2.)



22a

FACT:

That according to the Information 
gained by the Pre—Sentence Investiga­
tion Report - which is attached hereto 
as EXHIBIT #3, the defendant had, 
three months prior to the murder, 

threatened the wife and children with 
a pistol. That one week prior to the 
murder the defendant had fired six 
shots into the residence where his 
estranged wife was staying with her 
three c h i l d r e n ,  m o t h e r  and g r and  
mother.

CONCLUSION:

There is no mitigating circumstance 
under this paragraph because the prior 
acts of defendant gain significance by 
the fact that they shortly preceded the 
murder and rape of which he stands 
convicted.



23a

B. WHETHER THE MURDER WAS COMMITTED WHILE 
DEFENDANT WAS UNDER THE INFLUENCE OF 
E X T R E M E  M E N T A L  OR E M O T I O N A L  D I S ­
TURBANCE.

FACT:

The defendant did testify that he and 
his wife were separated at the time of 
the crimes - and that fact caused him 
concern.

FACT:

That there was no claim or defense of 
insanity, but upon Motion by Defense 
the defendant was examined by Dr. 
Ernest C. Miller, Psychiatrist, who 
reported that defendant was competent 
to stand trial and that he was, at the 
time of the crimes, able to understand 
the nature, quality and wrongfulness 
of his acts. Dr. Miller found no 
history of prior treatment for emo-



24a

ti o n a l  d i s o r d e r s .  (See D o c t o r ' s  
R e p o r t  a t t a c h e d  as E X H I B I T  #4.)

FACT:

That the Doctor reported that based on 
information provided to him by the 
defendant that he concluded defendant 
was in a state of self-induced intoxi­
cation at the time of the crime (which 
contention is refuted by the facts as 
set forth in Paragraph F . ) The Doctor 
did not find that Defendant was under 
the influence of extreme mental or 
emotional disturbance at the time of 
the crime.

CONCLUSION:

There is no mitigating circumstance 
under this paragraph because there is 
little, if any, evidence of extreme 

mental or emotional disturbance at the



25a

time of the crimes.
C. WHETHER THE VICTIM WAS A PARTICIPANT 

IN THE DEFENDANT'S CONDUCT OR CON­
SENTED TO THE ACT.

FACT:
The defendant tricked the victims, Mr. 
Rich, Mrs. Townsend and her daughter 
into his car and into his home. 
There, he pulled a pistol, tied them 
up, then untied and stabbed and shot 
Rich and raped Mrs. Townsend in the 
presence of her own child.

CONCLUSION:
There is no mitigating circumstance 
under this paragraph because defendant 
committed the murder and rape without 
any consent or participation by his
victims.



26a

D. WHETHER DEFENDANT WAS AN ACCOMPLICE IN 
THE MURDER COMMITTED BY ANOTHER PER­
SON, AND THE DEFENDANT'S PARTICIPATION 
WAS RELATIVELY MINOR.

FACT:

The evidence shows that defendant 
alone without aid or assistance from 
anyone else - committed the murder and 
rape.

CONCLUSION:

There is no mitigating circumstance 
under this paragraph.

E. WHETHER THE DEFENDANT ACTED UNDER 
EXTREME DURESS OR UNDER THE SUBSTAN­
TIAL DOMINATION OF ANOTHER PERSON.

FACT:

No such element of duress was ascer­
tained by the factual situation or by 
the Psychiatrist who examined defen­
dant. The defendant did tell the



27a

doctor that he was separated from his 
wife and that he had been drinking 

when the crime occurred. The word 
duress is defined in the dictionary as 
"Hardship - Severity, Imprisonment; 
also constraint; compulsion." Using 
those or even more inclusive defini­
tions - t h ere was a b s o l u t e l y  no 
element of duress shown in the facts 
or in the Doctor's Report which would 
e x p l a i n ,  m i t i g a t e  or e x p i a t e  the 

quality of the crime.

CONCLUSION;
There is no mitigating circumstance 

under this paragraph.

F. WHETHER THE CAPACITY OF THE DEFENDANT 
TO APPRECIATE THE CRIMINALITY OF HIS 
CONDUCT OR TO CONFORM HIS CONDUCT TO 
THE REQUIREMENTS OF LAW WAS SUBSTAN­

TIALLY IMPAIRED.



28a

FACT:

As stated in Paragraph B above, Dr. 
Miller made written report to this 
Court, EXHIBIT #4, and in such report 

found only that defendant was sep­
arated from his wife and was drinking 
at the time when the crimes occurred.

FACT:

The defendant told the Doctor that he 
was intoxicated at the time of the 
crimes - yet his actions belie that 
contention as well. He drove the 
victims to his home, pulled a pistol, 
tied them up - r e l e a s e d  Rich and 
scuffled with him, stabbed him and 
shot him. He then forced Mrs. Town­
send and her daughter to his car and 
drove to a Drive-In Liquor Store - at 
all times holding his pistol pointed 
at his victims. Upon returning to his



29a

home he continued to remain armed and 
o r d e r e d  Mrs. T o w n s e n d  to p r e p a r e  
dinner - which he ate and then raped 
her in the presence of her child. 
That, finally, after raping her the 
second time - and after he had con­
sumed a goodly portion of liquor - he 
went to sleep in the bed with Mrs. 
Townsend and she later escaped. Those 
actions up to and including the last 
act of rape were hardly those of an 
intoxicated man and in fact required 
mental and physical alertness.

FACT:
That one of the defenses was that of 
intoxication and the charge on intoxi­
c a t i o n  from f r o m  Page 20 of the 
Florida Standard Jury Instructions in 
Criminal Cases - was given to the 
Jury, and they apparently did not



30a

think he was intoxicated because they 
found him guilty of Murder and Rape.

OBITER DICTUM:

That the only incapacity suffered by 
the defendant was that he was separ­
ated from his wife and was drinking 
alcoholic beverages. If such condi­
tions are said to substantially impair 
a man's appreciation of his criminal 
conduct — then it would be a Carte 
Blanche Invitation for the decimation 
of a portion of the population by men 
similarly situated as was the defen­
dant herein.

CONCLUSION:

There is no mitigating circumstance 
under this paragraph.

THE AGE OF DEFENDANT AT THE TIME OF
THE CRIME.



31a

FACT:
The defendant was born July 15, 1943
and was thirty years of age at the 
time of the Murder and Rape. The 
report of the Doctor showed that he 
was a physically mature male standing 
five feet - e l e v e n  inches tall, 
w e i g h i n g  One H u n d r e d  N i n e t y  Four 
pounds and of average intelligence.

CONCLUSION:

There is no mitigating circumstance 
under this paragraph.

THE COURT NOW SUMMARIZES THE FACTS BROUGHT 
OUT IN TRIAL AND THE PRE-SENTENCE INVESTI­
G A T I O N  R E P O R T  AND A P P L I E S  THEM TO THE 
ELEMENTS OF AGGRAVATION WHICH WERE CON­
SIDERED BY THE JURY IN ARRIVING AT THEIR
ADVISORY SENTENCE.



32a

AGGRAVATING CIRCUMSTANCES
A. W H E T H E R  THE D E F E N D A N T  WAS U N D E R  

S E N T E N C E  OF I M P R I S O N M E N T  W H E N  HE 
COMMITTED THE MURDER OF WHICH HE WAS 
CONVICTED.

FACT:

The defendant was not imprisoned at 
the time of the murder, however, he 
was previously charged with assault to 
murder his wife and was out on bond 
from that charge at the time of the 
murder.

CONCLUSION:

Although not imprisoned - his status 
at the time of the crime is signifi­
cant because he was on bond for a 
felony charge which implied great 
physical danger to the victim. This 
is more an aggravating than mitigating
circumstance.



33a

B. WHETHER THE DEFENDANT HAS PREVIOUSLY 
BEEN CONVICTED OF ANOTHER CAPITAL 
FELONY OR OF A FELONY INVOLVING THE 
USE OF [sic] THREAT OF VIOLENCE TO THE 
PERSON.

FACT;

Although not previously convicted - 
the defendant was previously charged 
with a felony involving the use of 
[sic] threat of violence to the person 
of his wife, and the Pre-Sentence 
Investigation Report shows that he 
allegedly fired six shots into a house 
in which his wife was staying and that 
three months before the murder he 
allegedly threatened both his wife and 
children with a gun, and had also been 
charged with the felony of carrying a 
concealed firearm.



34a

CONCLUSION:

The only element lacking under this 
paragraph was that he had not been 
convicted of such crime - even though he 
had been charged with it. This is more 
of an aggravating than a mitigating 
circumstance.

C. WHETHER, IN COMMITTING THE MURDER OF 
WHICH HE HAS JUST BEEN CONVICTED, THE 
DEFENDANT KNOWINGLY CREATED A GREAT 
RISK OF DEATH TO MANY PERSONS.
FACT:

The testimony shows that after the 
defendant got Mr, Rich, Mrs. Townsend 
and her daughter in his home - that he 
p o i n t e d  a gun at all of them and 
threatened to kill them if they did 
not do as he ordered.

FACT:

That after the defendant murdered Rich



35a

- he held the knife on Mrs. Townsend 
and ordered her to perforin fellatio 

upon him.

FACT:
That he drove Mrs. Townsend and her 
daughter to a Drive-In Liquor Store 
and at all times, to and from the 
Liquor Store, he pointed the pistol at 
Mrs. T o w n s e n d  and her dau g h t e r .

FACT:
That he raped Mrs. Townsend at gu n ­
point while her daughter lay on the 
floor next to the bed.

FACT:
That, finally, he forced Mrs. Townsend 
to lie in bed with him while he had 
his gun and b u t c h e r  knife w i t h i n  
reach. Mercifully, he fell to sleep 
and she and her daughter escaped.



36a

FACT:
That Mrs. Townsend and her daughter were 
held hostage for approximately twelve 
hours by defendant who was armed with a 

butcher knife and pistol.

CONCLUSION;
There is an aggravating circumstance 
under this paragraph because not only 
did defendant murder Mr. Rich - but he 
created a great risk of death to Mrs. 
Townsend and her 11 year old daughter.

D. WHETHER THE MURDER OF WHICH DEFENDANT 
WAS CONVICTED WAS COMMITTED WHILE HE 
WAS ENGAGED IN THE COMMISSION OF, OR 
AN ATTEMPT TO COMMIT, OR FLIGHT AFTER 
COMMITTING OR ATTEMPTING TO COMMIT, 
ANY ROBBERY, RAPE, ARSON, BURGLARY, 
KIDNAPPING, AIRCRAFT PIRACY, OR THE 
UNLAWFUL THROWING, PLACING OR DIS-



37a

CHARGING OF A DESTRUCTIVE DEVICE OR 
BOMB.

FACT:

That Shirley Townsend, her 11 year 
old daughter and Leslie Van Rich were 
taken to defendant's home, tied hand 
and foot. Rich was subsequently 
murdered by the defendant - which 
left Mrs. Townsend and her daughter 
to the tender mercies of the defen­
dant He threatened them both with 
knife and gun and twice raped Mrs. 
Townsend.

FACT:

That within minutes after murdering 
Mr. Rich, the defendant attempted to 
force Mrs. Townsend to perform oral 
intercourse upon him. These estab­
lished and uncontraverted facts lead 
i n e v i t a b l y  and i n e x o r a b l y  to the



38a

conclusion that Rich was murdered to 
r e m o v e  an o b s t a c l e  to the s e x u a l  
assault. Thus, whether, murder was 
done while engaged in or attempting to 
commit a rape, or in eliminating the 

hindrance to its commission - it is 
clear that this crime comes within the 
meaning and intent of this paragraph.

CONCLUSION;

There is an aggravating circumstance 
under this paragraph.

E. W H E T H E R  THE M U R D E R  OF W H I C H  THE 
D E F E N D A N T  HAS B E E N  C O N V I C T E D  WAS 
COMMITTED FOR THE PURPOSE OF AVOIDING 
OR P R E V E N T I N G  A L A W F U L  A R R E S T  OR 
EFFECTING AN ESCAPE FROM CUSTODY.

This paragraph does not seem to apply 
to the present case.



39a

F. WHETHER THE MURDER OF WHICH DEFENDANT 
HAS BEEN CONVICTED WAS COMMITTED FOR 
PECUNIARY GAIN.

This paragraph does not seem to apply 
to the present case.

G. WHETHER THE MURDER OF WHICH DEFENDANT 
HAS BEEN CONVICTED WAS COMMITTED TO 
DISRUPT OR HINDER THE LAWFUL EXERCISE 
OF ANY GOVERNMENTAL FUNCTION OR THE 
ENFORCEMENT OF THE LAWS.

This paragraph does not seem to apply 

to the present case.

H. WHETHER THE MURDER OF WHICH DEFENDANT 
HAS BEEN CONVICTED WAS ESPECIALLY 
HEINOUS, ATROCIOUS OR CRUEL.

FACT:
The Defendant calculatedly and delib­
e r a t e l y  took the v i c t i m s  off the



40a

highway - induced them into his home, 
where he twice stabbed Rich - whose 
only offense was that he resisted 
being murdered. Then, as Rich lay on 
the floor, w r i t h i n g  in p a i n  and 
begging for help, the defendant knelt 
and placed a 44 caliber magnum pistol 
w i t h i n  inc h e s  of R i c h ' s  b o d y  and 
fatally shot him in the mid-back and 
the back of the head. That within 
minutes after perfoming the execution 
type murder - the defendant ordered 
Mrs. Townsend into a bedroom, dropped 
his t r o u s e r s  and r e q u e s t e d  that 

she perform fellatio upon him. The 
defendant then held the woman and her 
daughter hostage for 12 terror filled 
hours.

That such acts of the defendant shriek 
of callous, depraved homicidal premedi­
tation of the basest type.



41a

CONCLUSION:
The murder of which the defendant has 
been convicted was especially heinous, 
atrocious and cruel.

CONCLUSION OF THE COURT 
THERE ARE SUFFICIENT AND GREAT AGGRAVATING 
CIRCUMSTANCES WHICH EXIST TO JUSTIFY THE 
SENTENCE OF DEATH.

In concluding these findings I would 
like to p o i n t  out the follow i n g :  

That under Florida Law the Judge 
sentences a defendant, convicted 
of Murder in the First Degree, 
either to death or life imprison­
ment. This is an awesome burden 
to be placed upon a Judge - but 
in the landmark Florida case of 
State vs. Dixon 283 So.2d 1, The 
Florida Supreme Court said that



42a

w h e n  such d i s c r e t i o n  can "be 
shown to be reasonable and con­
trolled, rather than capricious 
and discriminatory then it meets 
the test of Furman v. Georgia 408 
U.S. 238."

My 22 years of legal experience 
have been almost exclusively in 
the field of Criminal Law. I 
have been a defense attorney in 
criminal cases, an Advisor to the 
Public Defender's Office on major 
crimes, a Prosecutor for eight 
and one-half years and a Criminal 
Court Judge and Circuit Court 
Judge - Felony Division - for 
almost four years. During these 
22 years I have defended, prose­
cuted and held trial in almost 
e v e r y  type of s e r i o u s  crime.



43a

Because of this extensive experi­
ence I believe I have come to 
know and understand when, or when 
not, a crime is heinous, atroci­
ous and cruel and deserving of 
the maximum possible sentence.

My experience with the sordid, 
tragic and violent side of life 
has not b e e n  c o n f i n e d  to the 
Courtroom. During World War II, I 
was a United States Army Para­
trooper and served overseas in 
g r o u n d  combat. I have seen 
friends blown to bits and have 
seen d e a t h  and s u f f e r i n g  in 
almost every conceivable form.

I am not easily shocked or moved 
by t r a g e d y  - but this was an 
expecially [sic] shocking crime.



44a

The defendant took the life of 
another human being by a murder
that was heinous, atrocious and
c r u e l an d  he d e s e r v e s t o
forfeit his life.

HAVING ADJUDGED YOU GUILTY OF MURDER IN THE 
FIRST DEGREE, I HEREBY SENTENCE YOU TO 
DEATH. I ORDER THAT YOU BE TAKEN BY THE 
PROPER AUTHORITIES TO THE FLORIDA STATE 

PRISON AND THERE KEPT IN CLOSE CONFINEMENT 
UNTIL THE DATE OF YOUR EXECUTION BE SET. 
THAT ON SUCH DAY YOU BE PUT TO DEATH BY 
HAVING ELECTRICAL CURRENTS PASSED THROUGH 
YOUR BODY IN SUCH AMOUNTS AND FREQUENCY 
UNTIL YOU ARE RENDERED DEAD.

I ADVISE YOU THAT YOU HAVE THIRTY DAYS FROM 
TODAY TO TAKE AN APPEAL OF THE SENTENCES 
WHICH I HAVE JUST IMPOSED UPON YOU AND I 
HEREBY APPOINT THE PUBLIC DEFENDER'S OFFICE 
TO REPRESENT YOU ON THE APPEAL.



45a

MAY GOD HAVE MERCY ON YOUR SOUL.

DONE AND ORDERED AND SENTENCED IN OPEN 
COURT AT THE D U V A L  C O U N T Y  C O U R T H O U S E ,  
JACKSONVILLE, FLORIDA, THIS THE 19TH DAY OF 

NOVEMBER, 1974.

/s/ Hudson Olliff 
HUSDON OLLIFF, CIRCUIT JUDGE



46a

IN THE CIRCUIT COURT, FOURTH 
JUDICIAL CIRCUIT, IN AND FOR 
DUVAL COUNTY, FLORIDA.
CASE NO. 76-1161 DIVISION: S

STATE OF FLORIDA
-vs-

ROBERT FIELDMORE LEWIS

S E N T E N C E
The defendant, Robert Fieldmore Lewis, 

was indicted for the crime of Murder in the 
First Degree of Joseph Lynwood Richards by 
shooting him to death. He was found guilty 
by jury of murder in the first degree and 
the case was passed until today for sen­
tence .

Another defendant, Eddie Lee Odum, was 
also indicted in the murder of Richards 
but he was tried separately by another 
judge and was also convicted of murder in 
the first degree and previously sentenced 
to death by that Judge.



47a

The fact that Edd i e  Lee O d u m  was 
sentenced to death for his participation in 
this premeditated murder - is immaterial 
and has no bearing upon this sentence. The 
sentence of Lewis is imposed on its own 
merits and b a s e d  upon his p a r t i c i p a ­
tion in the murder.

It is interesting and yet appalling to 
note - that LEWIS WAS ON PAROLE FROM THE 
FLORIDA STATE PRISON AT THE TIME OF THIS 
MURDER. Odum was on MANDATORY CONDITIONAL 
RELEASE FROM FEDERAL PRISON.

SUMMARY OF FACTS OF CRIME 
A summary of the facts of this murder 
as brought out in the trial were that: 

On January 27, 1976, Lewis and Odum 
advised Charles James Carter that they 
i n t e n d e d  to kill J o s e p h  L y n w o o d  
Richards and Lewis asked Carter for a 
shotgun. Carter testified that he got



48a

a 12-guage [sic] shotgun and met Lewis 
and O d u m  l a t e r  that e v e n i n g .  He 
testified that he drove a van, in 
which Lewis and Odum were riding, to 
the residence of Richards at 347 Trout 

River Drive here in Jacksonville, 
Florida.

Carter testified that he parked the 
van near the Richard's [sic] residence 
and that Lewis, armed with the shot­
gun, and Odum, armed with the rifle, 
went to the back of the residence. 
C a r t e r  s a i d  t h a t  he t h e n  h e a r d  
three or fourloud [sic] shots and that 
Lewis and Odum came running back to 
the van and they sped away.

Carter said that Lewis and Odum told 
him that they had shot Richards while 
he was laying on a bed and that two 
women were sitting at the end of the



49a

bed. Carter further testified that 
he threw the rifle in the river and 
hid the shotgun. Both guns were 
introduced into evidence and were 
positively identified by Carter as 
the murder weapons.

Testimony of investigating officers 
was that the entire top right portion 
of Richard's head had been blown away 
and that there were multiple wounds of 
the right upper arm, lower forearm, 
right upper torso and right thigh. 
Particles of blood, brains and skull 
matter were evidenced throughout the 
bedroom and the adjourning bathroom 
and hall area and were on the walls, 
c e i l i n g  and floor. The l a r g e s t  
remaining portions of the brain was 
[sic] lying on the floor near the
bed.



50a

The medical examiner, an expert in 
phorensic [sic] pathology, testified 
that the massive wounds to the head 
were caused by a shotgun and rifle. 
He stated that the head contained 
pellets and wadding from a 12 guage 
[sic] shotgun and a rifle bullet. He 
testified that Richards had been shot 
from a range of 6 to 8 feet and that 
he had been shot 4 times w i t h  a 
shotgun and 2 to 3 times with a rifle. 
He said that either the shotgun or 
rifle wounds could have caused death.

The two women testified that they were 
sitting at the foot of the bed in 
which Richards was laying at the time 
of the shooting. They were spattered 
with Richards' blood and body frag­
ments and one of the women was struck 
by a lead fragment from one of the



51a

w e a p o n s .  F o r t u n a t e l y  n e i t h e r  of 
them was seriously injured or killed 
by the r e p e a t e d  b l a s t  f r o m  the 
deadly weapons.

The Court having heard all of the evidence 
in this case, having denied a motion for a 
new trial and having studied trial notes 
and the PRE-SENTENCE INVESTIGATION REPORT 
(PSI - a sealed copy of which is attached), 
is prepared to impose sentence herein. 
Before imposing such sentence this Court 
has c l o s e l y  e x a m i n e d  and w r i t t e n  its 
find i n g s  as to each of the e l e m e n t s  
of aggravation and/or mitigation which are 
set forth in Florida Statutes 941.141 [sic] 
and which were guidelines for the jury in 
considering the advisory sentence.

In s u m m a r i z i n g  these e l e m e n t s  of 
aggravation and/or mitigation, the Court 
has li s t e d  them in r e v e r s e  o r d e r  - as
follows:



52a

MITIGATING CIRCUMSTANCES 941.141 [sic]

A. THAT THE DEFENDANT HAD NO SIGNIFICANT 
HISTORY OF PRIOR CRIMINAL ACTIVITY. 
FACT;

That from 1-14-66 up to the date of 
this convicton the defendant had been 
arrested 14 times.
FACT:

That the PSI s h o w e d  that he was 
convicted of at least 8 misdemeanors 
and at least 5 felonies.
FACT:

That in 1971, I sentenced this defen­
dant to 7 years in the State Prison 
for the cri m e  of P O S S E S S I O N  OF A 
FIREARM BY A CONVICTED FELON. That 
before he had finished serving that 
term he was given parole on 11-5-74. 
FACT:

The at the time of this murder the 
defendant was on PAROLE AND WHILE ON



53a

PAROLE HE WAS CONVICTED OF AT LEAST 7 
MISDEMEANORS BEFORE THE COMMISSION OF 
MURDER.

Unfortunately no action was taken to 
have his parole revoked before the 
commission of this murder.
CONCLUSION;
There is no mitigating circumstance 
under this paragraph because there is 
a history of a great amount of crimi­
nal activity by defendant prior to 
the commission of this murder.

B. THAT THE CRIME FOR WHICH THE DEFENDANT 
IS TO BE SENTENCED WAS COMMITTED WHILE 
THE DEFENDANT WAS UNDER THE INFLUENCE 
OF EXTREME MENTAL OF [SIC] EMOTIONAL 
DISTURBANCE:

FACT:
There was no evidence of any extreme 
mental or emotional disturbance at the



54a

time of the m u r d e r .  In fact the 
defense was that of an alibi. This 

alibi was established, in part, by 
relatives and friends who stated that 
on the day and night of the murder, 
the defendant was alternately "riding 
around with a friend, at a fish fry, 
at home with his girlfriend and his 
mother and with friends at a n i ght­

club." His girlfriend testified that
after the murder he returned home and
r e q u e s t e d  her and his m o t h e r to
get rid of his clothing - then he
re-dressed and went to the Pussy Cat
night club for a festive e v e n i n g .

FACT;

There is absolutely no evidence or 
testimony that the defendant was under 
the influence of extreme mental or 
emotional disturbance at the time of



55a

this murder and no such inference can 
be drawn or implied.

CONCLUSION:

There is no mitigating circumstance 
under this paragraph because there is 
no evidence of emotional distress. 
Perhaps the best indication of his 
mental attitude after the murder was 
his d i r e c t i o n  to his g i r l f r i e n d  
and mother to get rid of the murder 
clothes and then going out for a night 
on the town.

C. THAT THE VICTIM WAS A PARTICIPANT IN 
THE DEFENDANT'S CONDUCT OR CONSENTED 
TO THE ACT.
FACT:
The evidence showed that the defendant 
shot the victim a number of times in 
the head at close range with a shotgun



56a

- blowing away portions of his head 
and causing his instant death. There
was no evidence that the v ictim had
entred into a suicide pact with his
assailants or that he knew of their
p l a n  to m u r d e r  him - or that he
part i c i p a t e d in his own murder.

CONCLUSION;

There is no mitigating circumstance 
under this p a r a g r a p h  b e c a u s e  the 
defendant did - by stealth and p r e ­
meditation - shoot and kill the victim 
and the same was o b v i o u s l y  done 
without the foreknowledge or consent 
of the victim.

D. THAT THE DEFENDANT WAS AN ACCOMPLICE IN 
THE O F F E N S E  FOR W H I C H  HE IS TO BE 
SENTENCED BUT THE OFFENSE WAS COMMITTED 
BY ANOTHER PERSON AND THE DEFENDANT'S 
PARTICIPATION WAS RELATIVELY MINOR.



57a

FACT:
The defendant, Lewis, was a principal 
with Odum in the premeditated murder 
of the victim, Richards. The evidence 
established that Lewis had a shotgun 
and that Odum had a rifle and that 
they both fired a number of shots into 
the head and body of the victim. The 
medical examiner stated either the 
shotgun or rifle wounds could have 

caused the death.

FACT:
T h e r e  was a b s o l u t e l y  no e v i d e n c e  
presented in the trial or otherwise 
which indicted Lewis was more or less 
of a willing participant in the murder 
than was Odum. The defense was that 
of alibi and it was not heard to be 
said that the crime was primarily 
c o m m i t t e d  by O d u m  - or that the



58a

participation of Lewis was relatively 

minor.

CONCLUSION;
There is no mitigating circumstance 
u n der this p a r a g r a p h  b e c a u s e  it 
appears from the evidence at trial 
that the defendant was a principal 
and that his own participation was at 
least equal to that of the o t h e r  
defendant, Odum.

E. THAT THE DEFENDANT ACTED UNDER EXTREME 
DURESS OR UNDER THE SUBTANTIAL DOMINA­
TION OF ANOTHER PERSON.

FACT:
Although there was some testimony that 
Richards had previously threatend 
Lewis and Odum - there was no evidence 
or testimony that Lewis was under 
duress on the day of the murder or at 
any time leading up to that date.



59a

FACT:

There was no evidence or testimony 
that Lewis was under the substantial 
domination of Odum - or that Odum was 
under the substantial domination of 
Lewis. The facts and t e s t i m o n y  
indicate that both Lewis and Odum 
equally planned and participated in 
the murder of Richards.

CONCLUSION:
There
under
shows
eager

is no mitigating 
this paragraph, 
that Lewis was 
p a r t i c i p a n t  in

circumstance 
The evidence 
an equal and 
the m u r d e r .

F. THE C A P A C I T Y  OF THE D E F E N D A N T  TO 
APPRECIATE THE CRIMINALITY OF HIS 
CONDUCT OR TO CONFORM HIS CONDUCT TO 
THE REQUIREMENTS OF LAW WAS SUBSTAN­
TIALLY IMPAIRED



60a

FACT:

The defendant had - during his life 
of crime - been arrested at least 14 
times and had been convicted of at 
least 4 felonies and 8 misdemeanors. 
He, above all people, should have 
u n d e r s t o o d  a n d  a p p r e c i a t e d  the 
criminality of his conduct. His terms 
in the county jail and in the state 
prison - would have impressed even the 
most obtuse person with the conse­
quences of criminal acts and certainly 

with the criminality of premeditated 
murder. His actions in telling his 
girl friend and his mother to get rid 
of his murder clothes is certainly 
evidence of his keen understanding of 
the criminality of his acts and the 
consequences of them.



6 1 a
FACT;

There is no evidence that the defen­
dant's capacity to conform his conduct 
to the requirements of the law was 
substantially impaired. There was no 
claim of insanity, or incompetency or 
diminished capacity. In fact the only 
evidence of his mental capaciaty is 
found in the PSI. In that report it 
s h o w s  t h a t  a f t e r  the d e f e n d a n t  
was arrested for a felony in 1971, he 
was examined by the psychiatrist, Dr. 
Ernest Miller. Dr. Miller reported 
that he was competent to stand trial 
and that the defendant had "a passive 
d e p e n d e n t  p e r s o n a l i t y  with very 
prominient [sic] paranoid and psycho­
pathic components." Subsequently he 
was sentenced to 7 years in the State 
Prison. Since that time there is no



62a

evidence of psychiatric treatment or 
examination.

FACT:

That the defense herein was alibi and 
there is no evidence or testimony by 
defense witnesses or other witnesses 
that defendant's ability to conform 
his conduct to the requirements of the 
law was s u b s t a n t i a l l y  impaired.

CONCLUSION:

There is no mitigating circumstance 
under this paragraph.

G. AGE OF THE DEFENDANT AT THE TIME OF 
THE CRIME.
FACT:

That at the time of the crime the 
defendant was 28 years of age. He 
was not a c a l l o w  youth. He had 
completed the ninth grade of school,



63a

had s e r v e d  in the m i l i t a r y ,  had 
served terms in the state prison and 
the county jail and had been married 
and fathered children in and out of 
marriage. (See PSI) His age is an 
immaterial factor in this case except 
that it shows that he was a mature man 
capable of appreciating the enormity 
of his crime and the possible conse­
quences thereof.

CONCLUSION:

There is no mitigating circumstance 
under this paragraph.

CONCLUSION OF THE COURT 
T h ere are no m i t i g a t i n g  c i r c u m s t a n c e s  
existing either by statute or factually - 
which outweigh the aggravating circum­
s t a n c e s  to j u s t i f y  a s e n t e n c e  of life



64a

imprisonment rather than a sentence of 
death.

THE COURT NOW SUMMARIZES THE FACTS BROUGHT 

OUT IN TRIAL AND THE PRE-SENTENCE INVESTI­
G A T I O N  R E P O R T  AND A P P L I E S  T H E M  TO THE 
ELEMENTS OF AGGRAVATION WHICH WERE CON­

SIDERED BY THE JURY IN ARRIVING AT THEIR 
ADVISORY SENTENCE.

AGGRAVATING CIRCUMSTANCES 941.141 [sic]
A. THAT THE CRIME FOR WHICH THE D E F E N ­

DANT IS TO BE SENTENCED WAS COMMITTED 
WHILE THE DEFENDANT WAS UNDER SENTENCE 
OF IMPRISONMENT.

FACT;

The PSI attached shows the full and 
c o m p l e t e  c r i m i n a l  r e c o r d  of the 
defendant. He had previously been 
convicted of at least 4 felonies. IN 
[sic] the year 1971, this defendant



65a

appeared before me and I sentenced 
him to a term of 7 years in the State 

Prison for the crime of possession of 
a f i r e a r m  by a c o n v i c t e d  felon.

FACT:

That before he had finished serving 
the term I imposed upon him - he was 
placed on parole on 11-5-74, and he 
was out on parole at the time of this 
murder. In fact he was still under 
sentence of imprisonment but was on 
parole.

FACT:
That not only was the defendant under 
a sentence of imprisonment at the time 
of the murder - but significantly - 
the crime for w h ich he was under 
s e n t e n c e  was for p o s s e s s i o n  of a 
firearm by a convicted felon.



66a

FACT:
That while on parole the defendant was 
convicted of at least 7 misdemeanors 
and for 4 of those misdemeanors he was 
sentenced to terms in the County 
Jail. It appears no action was taken 
to revoke his parole for his criminal 
activities or his failure to comply 
with the terms and c o n d i t i o n s  of 

p a r o l e  b e f o r e  he c o m m i t t e d  this 
murder.

CONCLUSION:
This is an aggravating circumstance 

because he had been sentenced to a 
term in the State Prison and was given 
a parole before he finished serving 
that term and was under parole at the 
time of this murder.



67a

B. THAT AT THE TIME OF THE CRIME FOR 

WHICH HE IS TO BE SENTENCED, [sic] THE 
DEFENDANT HAD BEEN PREVIOUSLY C O N ­
VICTED OF ANOTHER CAPITAL OFFENSE OR 
OF A F E L O N Y  I N V O L V I N G  THE USE OR 
THREAT OF VIOLENCE TO SOME PERSON.

FACT:

That on 1 - 4 - 6 6  the d e f e n d a n t  was 
convicted of breaking and entering 
with intent to commit a felony and 
grand larceny. He was placed on two 
years probation. The breaking and 
entering into the house or building 
of another person is a crime where 
violence or threat of violence is 
al w a y s  p r e s e n t  - sin c e  there is 
i m m i n e n t  d a n g e r  of c o n f r o n t a t i o n  
between the defendant and the unsus­
pecting victim.



68a

FACT;

Approximately 11 months later - on 
12-23-66, the defendant was again 
convicted of the crime of breaking and 
entering with the intent to commit a 
felony and on this occasion he was 
sentenced to a term of 2 years in the 
Duval County Jail. Here again, is a 
crime where violence or threat of 
violence is present in the nature of 
the crime itself.

FACT:

On 10-25-67 the defendant was con­
victed of the felony of escape while 
serving the term as set forth in the 
paragraph above. Whether any violence 
was involved in the escape is not
known.



69a

FACT;

On 9-9-68 the defendant was again 
convicted of the crime of escape. 
Whether any violence was involved in 
the escape is not known.

FACT;
On 7-27-71 the defendant was convicted 
of Possession of Firearm by a Con­

victed Felon. Such a crime certainly 
seems to involve the threat of vio­
lence - when a convicted felon is in 
possession of a firearm. The threat 
of violence inherent in such a crime 
is so apparent that the statutes make 
it a felony in the second degree even 
without requiring an overt act with 
the firearm by the felon.

CONCLUSION;
There is an aggravating circumstance



70a

here in view of the nature of the 
crimes for which he was previously 
convicted.

C. THAT THE DEFENDANT, IN COMMITTING THE 
CRIME FOR WHICH HE IS TO BE SENTENCED, 
KNOWINGLY CREATED A GREAT RISK OF 
DEATH TO MANY PERSONS:

FACT:

That the defendant fired a shotgun 4 
times at close range - into the body 
of Richards. That at the time such 
shots were fired - the defendant, 
Lewis knew that there were two women 
s i t t i n g  at t h e  f o o t  of t h e  b e d  
where Richards was laying. A lead 
pellet struck one of the women. Both 
women were spattered with the victim's 
blood and particles from the upper 
portions of his head.



71a

FACT:

That by firing a shotgun several times 
at such close range the defendant, 
Lewis, did create a great risk of 
death to the two women who were just a 
few feet from Richards. The fact that 
one of the women was hit by a pellet 
and both were spattered with blood and 
body f r a g m e n t s  of the v i c t i m  is 
evidence in itself that the defendant 
did create a great risk of death to 
the two women.

CONCLUSION:

That there is an aggravating circum­
stance here because in committing the 
murder of Richards the defendant, 
L e w i s ,  d i d  c r e a t e  a g r e a t  r i s k  
of death to many persons.



72a

D. THAT THE CRIME FOR WHICH THE DEFENDANT 

IS TO BE SENTENCED WAS COMMITTED WHILE 
THE DEFENDANT WAS ENGAGED IN OR WAS AN 
ACCOMPLICE IN THE COMMISSION OF OR AN 
ATTEMPT TO COMMIT OR A FLIGHT AFTER 

COMMITTING OR ATTEMPTING TO COMMIT ANY 
ROBBERY, ARSON, BURGLARY, KIDNAPPING, 
A I R C R A F T  P I RACY, OR THE U N L A W F U L  
T HR O W I N G ,  P L A C I N G  OR D I S C H A R G I N G  
OF A D E S T R U C T I V E  D E V I C E  OR BOMB.

FACT:

That this paragraph does not seem to 
be a p p l i c a b l e  even th o u g h  it is 
evident that the defendant was in the 
commission of the felony of Possession 
of a Firearm by a Convicted Felon 
at the time of the murder — and was in 

violation of the terms and conditions 
of his parole, that is — associating 
with known felons - at the time of the



73a

commission of the murder for which 
he is to be sentenced.

E. THAT THE CRIME FOR WHICH THE DEFENDANT 

IS TO BE SENTENCED WAS COMMITTED FOR 
THE PURPOSE OF AVOIDING OR PREVENTING 
A LAWFUL ARREST OR EFFECTING AN ESCAPE 
FROM CUSTODY.

FACT;

This paragraph does not seem to apply 
to the present case.

F. THAT THE CRIME FOR WHICH THE DEFENDANT 
IS TO BE SENTENCED WAS COMMITTED FOR 
PECUNIARY GAIN.

FACT:
That this paragraph does not seem to 
be applicable in the present case even 
though there was some testimony that 
Richards had previously made a demand



74a

upon both L e w is  and O d u m  for the 

payment of money,

G. THAT THE CRIME FOR WHICH THE DEFENDANT 
IS TO BE SENTENCED WAS COMMITTED TO 
DISRUPT OR HINDER THE LAWFUL EXERCISE 
OF ANY GOVERNMENTAL FUNCTION OR THE 
ENFORCEMENT OF LAWS:

FACT:
That this paragraph does not seem to 
be applicable to the present case,

H. THAT THE CRIME FOR WHICH THE DEFENDANT 
IS TO BE SENTENCED WAS ESPECIALLY 
HEINOUS, ATROCIOUS OR CRUEL.

FACT:

The d e f e n d a n t s ,  L e wis and Odum, 
planned the premeditated murder of 
Richards and the testimony shows that 
they asked Carles [sic] Jimmy Carter



75a

to a s s is t them and to p r o v i d e  a 
shotgun.

FACT:

That, by pre-arrangement, Lewis and 
Odum met Carter at a place from which 
they proceeded by van to the residence 
of Richards. That Lewis, armed with a 
shotgun, and Odum, armed with a rifle, 
then p r o c e e d e d  to the R i c hards'  
r e s i d e n c e  and b r u t a l l y  shot him 
to death as he layed [sic] on the bed 
with two women sitting nearby.

FACT:

That this m u r d e r  was c o l d l y  and 

calculatedly planned and stealthly 
[sic] carried out. IT WAS, IN FACT, 
AN ILLEGAL EXECUTION, and was not 
done in the heat of passion and lacked 
any elements of self-defense or any 
pretense of justification.



76a

CONCLUSION:
The murder of which the defendant 

stands convicted was a cowardly and das­

tardly act of savage butchery - carried 
out under the cover of night and was in all 
respects an especially heinous, atrocious 
and cruel crime. That there are sufficient 
and g r e at  a g g r a v a t i n g  c i r c u m s t a n c e s  
which exist to justify the sentence of 
death.

FINDINGS OF THE COURT

The h e i no u s,  a t r o c i o u s  and cruel 
n a t u re  of the crime t o g e t h e r  w i t h  the 
e x t e n s i v e  c r i m i n a l a c t i v i t i e s  of the 
defendant shows that he is incapable of 
living in a free or institutional society 
and that his life should be forfeited.

THE SANCTITY OF LIFE IS REVERED BY ALL 
THINKING MEN - YET CAN IT BE SAID THAT



77a

THE LIFE OF A CONVICTED MURDERER IS MORE 
PRECIOUS THAN THAT OF THE MURDER VICTIM? 
OBVIOUSLY NOT, - AND THEREFORE, THE MAXIMUM 
PENALTY OF DEATH MUST BE IMPOSED.

COMMENTS OF COURT

In concludng my findings I would like 
to point out that my 24 years of legal 
experience have been almost exclu­
sively in the field of criminal law.

The Judge of this Court has been a 

defense attorney of criminal cases, a 
prosecutor for eight and one-half 
years, and A d v i s o r  to the P u b l i c  
Defender's Office and a Criminal Court 
and C i r c u i t  Court J u d ge  - F e l o n y  
Division for 6 years. That during 
t h i s  24 y e a r s  I h a v e  d e f e n d e d ,  
prosecuted and held trial of almost 
every type of serious crime.



78a

My experience with the sordid, tragic 
and violent side of life has not been 
confined to the Courtroom. During 
World War II, I was a United States 
Army Paratrooper and served in ground 
combat in Europe. I have seen death 
and suffering in almost every conceiv­

able form.

I am not easily shocked or moved by 
tragedy - but this was an especially 
heinous, atrocious and cruel crime - 
and is deserving of no sentence but 

death.

S E N T E N C E

I hereby adjudge you to be guilty of 
murder in the first degree and I sentence 
you to death by electrocution. I order 
that you be taken by the proper authorities 

to the Florida State Prison and there kept



79a

in close confinement until the date of your 
execution be set. That on such day you be 
put to death by havng electrical currents 
passed through your body in such amounts 
and f r e q u e n c y  until you are r e n d e r e d  
dead.

I advise you that you have thirty days 
from today in which to take an appeal from 
the conviction and sentence herein and I 
hereby appoint the Public Defender's Office 
to represent you on such appeal.

May God have mercy on your soul.
DONE AND ORDERED and SENTENCED in OPEN 

COURT this the 3rd. day of December, 1976, 
at Jacksonville, Duval County, Florida.

______/s/ R. Hudson Olliff_______
R. HUDSON OLLIFF, CIRCUIT JUDGE



80a

FLORIDA PAROLE AND PROBATION COMMISSION

PRESENTENCE INVESTIGATION [EXCERPTS]
* * * *

II. PRIOR ARRESTS AND C O N V I C T I O N S : A
check with the records of the Jacksonville 
S h e r i f f ' s  O f f i ce ,  the N a t i o n a l  C r i m e  
Information Center and the Florida Crime 
I n f o r m a t i o n  C e n t e r  r e v e a l e d  that the 
d e f e n d a n t  had the f o l l o w i n g  arrests.

PLACE: DATE CHARGE DISPOSITION
Jacksonville, 
Fla.

4-28-69 Petit
Larceny
Morals
Charge

10 days sus­
pended 
sentence

Jacksonville, 
Fla.

5-25-70 Grand
Larceny

nol prossed

Jacksonville, 
Fla.

4-26-71 Uttering 
a Forgery 
(3 counts) 
Posses­
sion of 
Stolen 
Property

nol prossed

Jacksonville, 
Fla.

6-16-71 B & E 
With In­
tent to 
Commit a 
Felony & 
Grand 
Larceny

5 years 
probation



8 1 a

Jacksonville, 
Fla.

10-7-71 Breaking 
& Enter­
ing Pos­
session 
of Stolen 
Property

nol prossed 
discharged

Jacksonville, 
Fla.

11-1-71 Forgery 
and Ut­
tering a 
Forgery

6 months
County
Jail

Jacksonville,
Fla.

3-21-72 DC,
Creating 
a Distur­
bance & 
DC, Pro­
fanity

nol prossed 
$25.00 sus­
pended fine

* * ★ *

CONFIDENTIAL EVALUATION 
★ * * *

II PRIOR ARRESTS AND CONVICTIONS:
Adult: The significant factors

concerning the defendant's 
adult arrest record are that he has been 
placed on probation on two occassions [sic] 
and incarcerated on one.
On June 22, 1972 the defendant was placed
on 3 years probation for the offense of 
attempted uttering of a forgery and he 
violated that probation by being re-ar- 
rested on a charge of Breaking and Enter­
ing. On November 1, 1971, his probation



82a

was revoked at which time he was sentenced 
to serve 6 months in the County Jail. At 
that same time, however, the defendant was 
placed on a new 5 year term of probation 
for the new offense of Breaking and Enter­
ing With Intent to Commit a Misdemeanor. 
The defendant's progress under supervision 
relating to that period of probation was 
considered good and on January 25, 1974,
his probation was terminated early because 
the best interest of society were [sic] 
felt to have been served.

Juvenile; A check with the records of
the Jacksonville Juvenile 

Court failed to reflect any record for the 
defendant.

* *  * *



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