Gardner v. Florida Brief for Respondent

    IN THE

P  £.

f h q ir w it *  € u s ir t  it!  tl|F I n t f r i i  $ t a i e a
OCTOBER TERM, 1976

No. 74-6593

Daniel Wilbur Gardner,
Petitioner3

against

State of Florida,
Respondent.

On Writ of Certiorari to the 
Supreme Court of Florida

BRIEF FOR RESPONDENT

Robert L. ShevinAttorney General of the 
State of Florida

Attorney for Respondent 
The Capitol

Tallahassee, Florida 32304
Wallace E, AllbrittonAssistant Attorney General

of Counsel



-x-

TOPICAL INDEX TO BRIEF

Preliminary Statement
Page
1,2

Opinion Below 2
Jurisdiction 2,3
Constitutional and Statutory 

Provisions Involved 3,4
Question Presented 4
Statement of the Facts 5-19
Summary of Argument 19-22
Argument 23-55
Conclusion 55



-li-

Cases
Page

Baker v. United States, 388 F.2d
931 (4th Cir. 1968) 44

Hancock Brothers, Inc. v. Jones,
293 F.Supp. 1229 (D.C.N.D. Cal.
1968) 40

Hoover v. United States, 268 F.2d
787 (10th Cir. 1959) 41

Proffitt v. State of Florida,
_____U.S.____, 49 L .Ed.2d 913,
96 S.Ct._____ (1976) 48

Specht v. Patterson, 386 U.S. 605
(1967) 43

State v. Dixon, 283 So.2d 1 (Fla.
1973) 51

United States v. Durham, 181 F.Supp. 
503 (D.D.C. I960) 39

United States v. Horsley, 519 F.2d
1264 (5th Cir. 1975) 47

Williams v. New York, 337 U.S. 241
(1949) 34



Statutes
Page

Section 775.082, Florida Statutes 3 
" 782.04, " " 3
" 921.141, " " 4

Rules
Fla.R.Cr.P. 3.710 4
Fla.R.Cr.P. 3.711 4
Fla.R.Cr.P. 3.712 4
Fla.R.Cr.P. 3,713 4

-iii-



~ 1 V ~

Other Authorities
Page

Guzman, Defendant's Access to Pre­
sentence Reports in Federal 
Criminal Courts, 52 Iowa L.Rev.
161 (1966) 26

Higgins, In Response to Roche, 29
Albany L .Rev. 225 (1965) 26

Higgins, Confidentiality of Pre­
sentence Reports, 28 Albany L.
Rev. 12 (1964) 26

Hincks, In Opposition to Rule 34(c)
(2), Proposed Federal Rules of 
Criminal Procedure, Fed.Prob.,
Oct.-Dec. 1944, p. 3 27

Lorensen, The Disclosure to Defense 
of Presentence Reports in West 
Virginia, 69 W.Va.L.Rev. 159 
(1967) 26

Note, Right of Criminal Offenders 
to Challenge Reports Used in 
Determining Sentence, 49 Colum.
L.Rev. 567 (1949) 27

Parsons, The Presentence Investiga­
tive Report Must be Preserved as 
a Confidential Document, Fed.
Prob., March 1964, p. 3 26

Roche, The Position for Confiden­
tiality of the Presentence 
Investigation Report, 29 Albany 
L.Rev. 206 26





- V -

Rubin, What Privacy for Presentence 
Reports, Fed.Prob., Dec. 1952, 
p. 8 27

Sharp, The Confidential Nature of 
Presentence Reports, 5 Catholic 
U.L.Rev. 127 (1955) 27

Symposium on Discovery in Federal 
Criminal Cases, 33 F.R.D. 47,
122-28 (1963) 27

Thomsen, Confidentiality of the 
Presentence Report: A Middle 
Position, Fed.Prob., March 1964 26



IN THE

fciipran* ®0Mrt of %  Itttlad fctafea
OCTOBER TERM, 1976

No. 74-6593

DANIEL WILBUR GARDNER,
P et-itionev 3

against

STATE OF FLORIDA,
Respondent.

On Writ of Certiorari to the 
Supreme Court of Florida

Preliminary Statement
All references to the appendix will be 

made by use of the prefix "A" followed by 
appropriate page number. References to 
the original transcript of trial testimony



2

will be made by use of the symbol "Tr." 
followed by appropriate volume and page 
number.

Opinion Below
The opinion of the Supreme Court of 

Florida affirming petitioner's conviction 
of first degree murder and sentence of 
death by electrocution is reported at 
313 So.2d 675 (A 149-156). The findings 
of fact made by the trial judge in support 
of the imposition of the death sentence 
and the judgment and sentence of the Cir­
cuit Court of the Fifth Judicial Circuit 
of Florida, in and for Citrus County, ad­
judicating petitioner guilty and senten­
cing him to death appear at A 138-140.

Jurisdiction
The judgment of the Supreme Court of 

Florida was entered on February 26, 1975



3

(A 149). The petition for certiorari was 
filed on May 24, 1975 and was granted on 
July 6, 1976 (A 157). The jurisdiction 
of this Court rests on 28 U.S.C. §1257 (3).

Constitutional and Statutory 
Provisions Involved

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

"In all criminal prosecutions, the 
accused shall enjoy the right...to 
have the Assistance of Counsel for 
his defence."

It also involves the Due Process Clause 
of the Fourteenth Amendment.

It further involves the following pro­
visions of the statutes and rules of Crim­
inal Procedure of the State of Florida.

Section 775.082, Florida Statutes,
1975.
Section 782.04, Florida Statutes,1975.



4

Section
1975

921.:141, Florida Statutes,

Florida
3.710.

Rule of Criminal Procedure

Florida
3.711.

Rule of Criminal Procedure

Florida
3.712.

Rule of Criminal Procedure

Florida
3.713

Rule of Criminal Procedure

Question Presented
Whether nondisclosure of a "con­
fidential" portion of a presen­
tence investigation report to a 
defendant convicted of a capital 
crime constitutes a denial of the 
effective assistance of counsel 
guaranteed by the Sixth and Four­
teenth Amendments to the Constitu­
tion of the United States, and of 
the right to a fair hearing as 
guaranteed by the Due Process 
Clause of the Fourteenth Amend­
ment, in a case where the trial 
judge declines to accept a jury 
recommendation of a life sentence 
and instead imposes the death sen­
tence partially on the basis of 
the presentence report?



5

Statement of the Facts
Glenda Mae Demney, presently residing 

in Tampa, Florida, suffered a traumatic 
experience on June 29, 30, 1973. On that 
date, she was living in Homosassa, Florida. 
She lived in a trailer right beside her 
daughter, Bertha Mae Gardner, and her hus­
band, petitioner, Daniel Wilbur Gardner 
(R Vol.II, pp. 166, 167). Glenda Mae saw 
her daughter around 7:00 o'clock on 
June 29, 1973 (R Vol.II, p. 168). Later, 
after dark, Glenda Mae and Bertha Mae 
took Bertha Mae's children to the home of 
Glenda Mae's youngest son. Glenda Mae 
and Bertha Mae then went on to the Sugar 
Mill, a local tavern. Glenda Mae let her 
daughter out at the Sugar Mill and then 
went back home (R Vol.II, pp. 169, 170). 
Later Glenda Mae saw Bertha again when 
Bertha came to her trailer and said she was



6

out of cigarettes. This was about 10 or 
10:30 p.m., and Bertha remarked that she 
was going to look for her husband, peti­
tioner Gardner. As far as Glenda Mae 
knew Bertha had not had anything of an

p/. '

alcoholic nature to drink (R Vol.II, 
p. 171). On that particular evening,
Glenda Mae was keeping company with Cal­
vin Loenacker, more popularly known as 
Buckshot. Later in the evening or per­
haps in the early morning hours, Glenda 
Mae and Buckshot were in her trailer.
She was fixing her lunch for the next 
morning and sipping along on a beer. All 
of a sudden, the door, hinges and all, 
came off and her son-in-law, Daniel Wil­
bur Gardner petitioner was behind it. He 
hit Glenda Mae on the side of the face, 
and she was knocked out (R Vol.II, p. 172). 
The next morning, Glenda Mae was fixing



7

some coffee when her son-in-law came over 
again and said that her daughter, Bertha 
Mae, wasn’t breathing right (R Vol.II, p . 
174). Glenda Mae went next door and saw 
her daughter naked on a bed with bruises 
on her face. Glenda Mae didn,' t know if 
Bertha was unconscious or not. But as 
far as she could determine, her son-in- 
law was not drinking that morning and he 
did not appear to be intoxicated. She 
stated that he had been drinking the night 
before when he came to her trailer and 
struck her but he was not drunk (R Vol.II, 
pp. 175, 176). No question about it, 
Glenda Mae flatly denied a contention 
that her son-in-law came to her house, 
knocked on the door and inquired about 
the whereabouts of his children. Glenda 
Mae further denied that she slammed the 
door in her son-in-law's face, that he



8

then kicked the door and it flew open 
and hit her and knocked her down (R Vol. 
II, p. 182). Glenda Mae remarked again 
that her son-in-law knocked her out with 
his fist and kicked her in the end of her 
spine "and the door didn't do that."
(R Vol.II, p. 183).

Alva Loenecker was a commercial fisher­
man and long time friend of petitioner 
Gardner and his wife (R Vol.II, p. 185).
He was at Glenda Mae's house on June 29, 
1973 drinking some whiskey. At about 11 
or 11:30 p.m., petitioner Gardner came 
over, drug the door off the trailer, came 
in and hit Glenda- Mae and knocked her out 
on the floor (R Vol.II, p. 186). Buck­
shot asked him not to do that any more. 
Petitioner Gardner remarked that he was 
going back and beat hell out of his wife. 
Buckshot saw Bertha Mae at the door of



9

her trailer, and then gesturing, said 
that petitioner was pulling her head down 
at which time Bertha said, "please don't 
hit me any more." (R Vol.II, p. 187) 
Approximately 35 minutes later, petitioner 
Gardner returned to the trailer where 
Glenda Mae and Buckshot were. Petitioner 
wanted to jump on Glenda Mae again but 
Buckshot apparently talked him out of it. 
Nothing was mentioned concerning the where 
abouts of petitioner's children (R Vol.II, 
p. 188). The next morning, petitioner 
came to the trailer, called Buckshot and 
said something was wrong with his wife, 
Bertha Mae (R Vol.II, p. 189). Glenda 
Mae got up and she and Buckshot went to 
petitioner's trailer. On entering the 
trailer, Buckshot saw Bertha Mae and 
petitioner remarked that he couldn't 
understand why his wife didn't wake up.



10

Buckshot said that Bertha Mae looked like 
she was dead. Petitioner asked him to go 
call the ambulance (R Vol.II, p. 190).

Nellie Merkerson is the mother of peti­
tioner. She saw Buckshot on the morning 
of June 30, 1973 and as a result went to 
the trailer where her son and his wife 
were living (R Vol.II, p. 196). On 
arrival at the trailer, she asked her 
son what had he done, and he denied hav­
ing done anything at all (R Vol.II, p. 
197). After this, Nellie went back to 
her house, called her daughter-in-law 
and asked her to call the ambulance.
Nellie then returned to her son's trailer 
and when she saw what had happened and 
asked her son about it, he said, "She 
wouldn't tell me where my babies are and 
I tried to get her to tell me and she 
wouldn't so I kept on beating her."



11

(R Vol.II, pp. 198, 199)
David Merkerson is the half-brother of 

petitioner (R Vol.II, p. 200). David lived 
about 150 feet from the trailer where peti­
tioner and his wife lived. He went to 
their trailer on the morning of June 30, 
1973. His mother, Nellie Merkerson, his 
wife Susan, and Bertha's mother, Glenda 
Mae, were there (R Vol.III, p. 201). 
Buckshot was outside. When David Merker­
son saw Bertha Mae, she was on the bed 
and "she was dead." A sheet had been 
pulled up all the way to her neck (R Vol.
II, p. 202). David was present when peti­
tioner was placed in the patrol car (R Vol.
III, p. 203). At that time, petitioner 
remarked to him, "Dave, I guess I really 
did it this time." David answered, "Yes,
I guess you did." (R Vol.III, p. 204)



12

Susan Markerson is the aunt of peti­
tioner. She lived less than one-half 
block from where petitioner and his wife 
lived. Her rest was disturbed at approx­
imately 11:30 p.m. on June 29, 1973 when 
she was awakened by noises emanating from 
petitioner's trailer which sounded like 
someone was bumping or moving furniture 
around (R Vol.III, p. 206).

Walter Owezarek is an emergency medical 
technician and on the morning of June 30,
1973 went to the residence of Daniel Wil­
bur Gardner and Bertha Mae Gardner (R Vol. 
Ill, p. 207). Upon arrival, Walter asked 
where the patient was (R Vol.III, p. 208). 
Petitioner pointed to a room. Walter saw 
a woman lying on a bed and examined her 
but found no vital signs. He looked at 
her entire body and saw a gigantic hematosa 
in the pelvic area (R Vol.III, pp. 209, 210).



13

The woman had been so badly bruised that 
Walter inquired from the petitioner as to 
now it happened. Petitioner remarked that 
his wife probably went out and got some 
drugs and when she came back she told peti­
tioner to hit her and that he constantly >.j/ u 
kept pounding on her. When Walter heard 
this, he called the Sheriff's Department 
and they all stood by and waited for the 
officers to arrive (R Vol.III, p. 211).
Later after receiving permission from the 
law enforcement officers, Walter and the 
ambulance driver removed the body to the 
Citrus Memorial Hospital (R Vol.III, p.
215) .

Lloyd Shelton had been employed as a 
deputy sheriff of Citrus County, Florida, 
for approximately 8-1/2 years. On 
June 30, 1973, he had occasion to go to 
the residence of petitioner Gardner at



14

approximately 7:00 a.m. (R Vol.Ill, p. 
216). He had known petitioner and his 
wife prior to this occasion (R Vol.Ill, 
p. 217). When he looked at the nude body 
which had been beaten and bruised, there 
wasn't any sign of life. He touched the 
leg just below the knee, and it was cold. 
He radioed the sheriff's office to send 
Deputy Williams and for them to call Mr. 
Green to come to the scene (R Vol.Ill, 
p. 218). Deputy Shelton took a lot of 
photographs inside the premises (R Vol. 
Ill, p. 219). Deputy Shelton turned all 
the evidence over to Deputy George Han- 
stein (R Vol.Ill, pp. 230, 231). Later 
when Deputy Shelton arrested petitioner, 
he advised him of his constitutional 
rights, commonly known as Miranda warn­
ings (R Vol.Ill, p. 239). After Deputy 
Shelton put petitioner in the car and they



15

were driving along, petitioner remarked, 
"Why would a man do something like that" 
--"why would I do something like that," 
Petitioner also commented that his wife 
had been running around with other people 
and "that thing has been eating on me,-—  

it was just more than I could stand."
(R Vol.III, p. 240) Petitioner gave a 
statement to Deputy Shelton and basically 
in the statement said that he and his wife 
got into a fuss after they got home and 
he beat her. Then she got up and took a - 
bath and when she came back to bed, he 
beat her some more. And then he went to 
sleep and didn't wake up until the next- 
morning (R Vol.III, p. 243).

David Chancey first saw the body of 
Bertha Mae at the Citrus Memorial Hospi­
tal. He took the body from Citrus Mem­
orial to the Leesburg General Hospital.



16

No one was with him when he transported 
the body (R Vol.III, pp. 244, 245). He 
identified a photograph of the body 
(State's Exhibit No. 6) as being a photo­
graph of the body he transported.

George Hanstein was a deputy sheriff 
in Citrus County, Florida. He received 
three packages from Deputy Shelton which 
he initialled and processed them for 
turning over to the Florida Crime Lab in 
Sanford, Florida. Counsel for the res­
pective parties stipulated to this fact 
(R Vol.III, pp. 249, 250).

Dr. William H. Shutze is a medical 
doctor specializing in pathology. Coun­
sel for petitioner at trial had no objec­
tion to his qualification as a patholo­
gist licensed to practice in the State of 
Florida (R Vol.III, pp. 252, 253). Dr. 
Shutze identified State's Exhibit No. 6



17

as being a photograph of a body upon which 
he performed an autopsy on July 2, 1973 at 
the Leesburg General Hospital. He ascer­
tained that the name of the body of the 
deceased was Bertha Mae Gardner. This 
was done from a name tag on the body (R 
Vol.III, p. 255). Dr. Shutze described 
the condition of the body and stated that 
there were at least 100 bruises thereon 
(R Vol.III, p. 256). And as a result of 
one injury, it was his opinion that some­
thing like a broomstick, bat, or bottle 
had been placed in the vagina (R Vol.III, 
p. 257). Dr. Shutze estimated that the 
wounds were perpetrated upon the body of 
the deceased by combination of instrument, 
fists, stomping, and rolling on the floor 
(R Vol.III, p. 258). The cause of death 
was a result of a combination of a loss 
of blood from a large tear in the liver



18

and from the fracture of the pubic bone 
(R Vol.Ill, p. 259). He estimated that 
the deceased weighed 90 pounds (R Vol. 
Ill, p. 260). On examining the body of 
the deceased, it was determined that 
large patches of hair were missing that 
were not of a diseased nature. Rather, 
the hair loss resulted from same being 
pulled out (R Vol.Ill, p. 261). When 
counsel for petitioner questioned Dr. 
Shutze, there was quite a hassle over 
the identity of the body upon which the 
doctor performed the autopsy. In fact, 
counsel for petitioner moved to strike 
all of the doctor's testimony because he 
could not positively identify the body 
upon which he performed the autopsy as 
being the body of Bertha Mae Garnder 
(R Vol.Ill, pp. 262-264). A blood alco­
hol test was performed with a result of



19

.19 grams percent which Dr. Shutze inter­
preted as indicating mild tc moderate in­
toxication (R Vol.III, p. 267).

Chandler Smith worked in the Sanford 
Crime Lab as a criminalist examiner (R 
Vol.III, pp. 268, 269). He was qualified 
as an expert without objection. He tes­
tified as to tests performed by him upon 
certain exhibits and the results thereof 
(R Vol.III, pp. 270-275).

The petitioner, Daniel Wilbur Gardner, 
did not take the stand to testify in his 
own behalf. (A 27-84)

Summary of Argument
Petitioner received a fair trial, and 

the exercise of a reasoned discretion 
by the trial judge in the sentencing pro­
ceeding does not violate the Due Process 
Clause of the Fourteenth Amendment. Fail



20

ure to disclose a confidential portion of 
the presentence report did not deny peti­
tioner the effective assistance of coun­
sel nor deny him a fair hearing as guar­
anteed by the Due Process Clause of the 
Fourteenth Amendment.

First, for an investigator to get in­
formation, especially of an intimate na­
ture, he must be able to give a firm 
assurance of confidentiality. Mandatory 
disclosure would immediately dry up sources 
of information that would otherwise be 
available to an investigator. People do 
not want to get involved. When they learn 
that the supplying of information can 
result in having to go to court or a neigh­
borhood feud, they will no longer share 
their knowledge and impressions.

Secondly, mandatory disclosure would 
interminably delay the proceedings. A



21

defendant would, and understandably so, 
challenge everything in the report, thus 
transforming the sentencing process into 
a much more lengthy affair then it has to

• If a. court must permit controversy 
with resultant hearings over each part of 
a presentence report, this would defeat 
the very purpose of the report by extend­
ing the process to such an extent that it 
would no longer be a practical tool for 
the aid of the court in the sentencing 
process.

Thirdly, mandatory disclosure of parts 
of the presentence report would be harm­
ful to the rehabilitative efforts of a 4*, y 
defendant. For example, a psychiatrist 
would hardly reveal his complete diagnosis 
of a patient at the beginning of their 
relationship. Similarly, and particularly 
if a defendant is to be supervised on pro-



22

bation by the same officer who compiled 
the report, it can impede the defendant's 
progress from the beginning if complete 
disclosure is made.

Finnally, it is not unfair to a defen­
dant to proceed against him in this man­
ner. There is no longer the scrupulous 
need for trial-type hearings with full 
disclosure and confrontation that properly 
governs a guilt-innocence determination. 
The reasoned exercise of discretion by 
the trial judge in evaluating the confi­
dential portion of a presentence report 
can be trusted and constitutes an ade­
quate safeguard of the interests of both 
the defendant and society.



23

Argument

A, The sentencing proceedings
MET THE REQUIREMENTS OF DUE 
PROCESS AND PETITIONER RE­
CEIVED THE EFFECTIVE ASSIS­
TANCE OF COUNSEL.

Sub judice, the Findings of Fact sub- 
mitted by the trial judge (A 138) in sup­
port of the death sentence proves conclu­
sively that no mitigating circumstances 
were ignored. A separate and plenary 
hearing was conducted on the penalty 
issue as required by Section 921.141(1), 
Florida Statutes. The jury was correctly 
instructed as to their duty in this 
second phase of the trial (A 121), and 
then the trial judge reread the entire 
jury instructions to them (A 124). Peti­
tioner made no request for any additional 
instructions or for any corrections to be 
made to the instructions as given in this



24

phase of the trial (A 125, 126). Peti­
tioner was given ample opportunity to pre­
sent anything he desired for considera­
tion by the jury as a mitigating circum­
stance. No request was made for the sen­
tencing phase to be continued for the 
purpose of securing mitigating testimony. 
Petitioner did not argue in his brief 
filed in the court below that other miti­
gating testimony should have been presen­
ted to the jury (and the judge) but that 
he was unable to do so because of lack of 
time.

The record shows that the jury returned 
its verdict of guilt on January 10, 1974 
(A 106). The second phase or sentencing 
proceeding was immediately begun and the 
jury's Advisory Sentence was returned on 
the same date, January 10, 1974 (A 126). 
However, the trial judge's Findings of



25

Fact were not filed until January 30,
1974, and the death sentence was imposed 
on the same day (A 138-140). Simple arith­
metic shows that the trial judge had a 
period of twenty days within which to 
mull over, cogitate on, consider, and 
weigh all of the testimony adduced at the 
trial and at the sentencing proceeding. 
Certainly, it cannot be successfully urged 
that the trial judge was in any haste or 
in any way eager to impose the death pen­
alty. Rather, this was done after an 
ample period of reflection and considera­
tion of everything that had transpired 
and should not be disturbed by this Court.

B, Petitioner was not denied a
FAIR HEARING OR THE EFFECTIVE 
ASSISTANCE OF COUNSEL BECAUSE 
OF NONDISCLOSURE OF THE FULL 
PRESENTENCE REPORT.

It must be admitted that the question



26

of disclosure vel non of the presentence 
report to parties has generated much heated 
debate in the literature. See, e.g., 

Lorensen, The Disclosure to Defense of 

Presentence Reports in West Virginia,

69 W.Va.L.Rev. 159 (1967); Guzman, Defen­

dant 's Access to Presentence Reports in 

Federal Criminal Courts, 52 Iowa L.Rev.
161 (1966); Roche, The position for Con­

fidentiality of the Presentence Investiga­

tion Report, 29 Albany L.Rev. 206; Higgins, 
In Response to Roche, 29 Albany L. Rev.
225 (1965); Higgins, Confidentiality of 

Presentence Reports, 28 Albany L. Rev. 12 
(1964); Parsons, The Pre-sentence Investi­

gative Report Must be Preserved as a Con­

fidential Document, Fed.Prob., March 1964, 
p. 3; Thomsen, Confidentiality of the Pre­

sentence Report: A Middle Position, Fed. 
Prob., March 1964, p. 8; Symposium on Dis­



27

covery in Federal Criminal Cases, 33 F .R.D 
47, 122-28 (1963); Sharp, The Confidential 

Nature of Presentence Reports, 5 Catholic 
U.L. Rev. 127 (1955); Rubin, What Privacy 

for Presentence Reports, Fed. Prob., Dec. 
1952, p. 8; Note, Right of Criminal Offen­

ders to Challenge Reports Used in Deter­

mining Sentence, 49 Colum.L.Rev. 567 
(1949); Hincks, In Opposition to Rule 34(c) 

(2), Proposed Federal Rules of Criminal 

Procedure, Fed.Prob., Oct.-Dec. 1944, 
p. 3. There is also a division among 
statutes on the point. Most maintain a 
position of silence which is usually inter­
preted as placing disclosure within the 
discretion of the sentencing court. 
Illustrative of this position is Florida 
Rule of Criminal Procedure 3.713(a) pro­
viding that the trial judge "may disclose" 
any of the contents of the presentence



2 8

investigation. It is emphasized that 
there have been numerous proposals in an 
effort to draw an acceptable line of de­
marcation between complete disclosure 
and complete secrecy. The President's 
Crime Commission recommended, for example, 
that "in the absence of compelling reasons 
for nondisclosure of special information, 
the defendant and his counsel should be 
permitted to examine the entire presen­
tence report." President's Comm'n, The 
Challenge of Crime 145. See also Presi­
dent's Comm'n, The Courts 20. Other pro­
posals have often proceeded from the view 
that what the defendant needs is not the 
whole report, but merely the facts on 
which it is based. Sources of informa­
tion, together with opinions of the pro­
bation officer, properly can remain a 
privileged communication between officer



29

and judge. See, e.g.3 Higgins, Confiden­

tiality of Presentenoe Reports3 28 Albany 
L.Rev. 12 (1964). There are real advantages 
in a truly confidential report immune from 
disclosure to the defendant or his counsel.
A presentence report, being designed as an 
aid to the judge, will contain an intimate 
character sketch of the defendant. In the 
State of Florida where the reports, at 
least parts thereof, have been held con­
fidential, they have attained a quality 
which makes them far more reliable and 
hence more useful to the judge. No one 
will deny that in formulating a sentence, 
a judge needs as accurate an estimate as 
possible of the character of the defen­
dant. The best source of information on 
a man's life is his family, if he has one.
If the investigating officer can tell the 
members of the family that any information



30

they give will be held confidential, the 
chances are he can get a more accurate 
picture of the defendant's family life 
for his report. But if the defendant 
has been a bad provider and a bad influ­
ence on the children, in many cases, the 
wife will understandably hesitate to dis­
close the information if she knows that 
it will subsequently be brought to her 
husband's attention.

Another very useful source of informa­
tion includes the defendant's employers. 
If employers, as a result of full disclo­
sure of the presentence reports, learn 
that their cooperation in disclosing in­
formation to the investigating officer 
will result in subpoenas to appear and 
testify on contested issues at hearings 
on a sentence, this Court can believe 
that their cooperative attitude will soon



31

be destroyed. The net result will be 
that a valuable source of information 
about the defendant no longer will be 
available for the presentence report as 
an aid to the judge in formulating a 
sentence.

Then, too, the requirement of disclo­
sure seems particularly unfortunate when 
a defendant is a gangster with dangerous 
associates. It is neither fair nor sensi­
ble for any person who can give useful 
information on the character of such 
defendants to be subjected to the hazard 
of retaliation which well may flow from 
the disclosure of confidential data.

Frequently, presentence reports will 
include testimony from neighbors and mem­
bers of the community. Such information 
constitutes hearsay and there is perhaps 
a certain minimal degree of logic in say-



32

ing the considerations of fairness require 
that the defendant be given an opportunity 
to dispute and cross examine any unfavor­
able testimony gathered by the investiga­
tor. But it is the position of respon­
dent that the character and official posi­
tion of the investigating officer is a 
better guaranty against unfair prejudice 
than the opportunity for partisan coun­
sel to verify and cross examine. Proba­
tion officers in the preparation of pre­
sentence reports are on the alert to dis­
card or discount character evidence moti­
vated by spite or prejudice. Unreliable 
testimony is either wholly excluded or, 
if included, accompanied by sufficient 
warning to put the judge on notice. In 
this way, the judge has the benefit of 
information apparently trustworthy and 
can make his own estimate of the reliabil-



33

ity of questionable information, just as 
well as though the objection were raised 
by defense counsel.

Should this Court determine that full 
disclosure is constitutionally required, 
then it can look forward to delays in the 
imposition of sentence in the trial courts. 
This is so because defense counsel can 
urge, and properly so, that the only rea­
son for the rule was to afford opportunity 
for an independent investigation of cer­
tain material found therein and can then 
protest in all sincerity that their pres­
sing trial engagements will prevent them 
from promptly undertaking the investiga­
tion of the subject matter. And the trial 
judge will be saddled with an added 
dilemma: He will be accused of frustrating 
the rule of disclosure unless he affords 
defense counsel reasonable opportunity to



34

verify the report without interference with 
his court assignments elsewhere. The inevit­
able result is that the offender whose law­
yer is most in demand will have the greater 
success in delaying the day of sentence.

Respondent's constitutional contention 
is simply stated: The Sixth and Fourteenth
Amendments do not forbid the imposition of 
a death sentence after consideration of 
confidential matters in a presentence re­
port that have not been disclosed to the 
parties. The decision of this Court in 
Williams v. New York3 337 U.S. 241 (1949), 
has long been recognized as the complete 
and final word in support of nondisclo­
sure. In Williams, this Court reviewed 
a decision of the New York Court of Appeals 
and by a majority opinion upheld a convic­
tion of first degree murder. The jury 
had recommended life imprisonment for the



35

slaying of a young girl in Brooklyn. The 
trial judge, relying upon a probation inves 
tigation report as a basis for ignoring the 
jury recommendation, imposed the death pen­
alty. This Court held that the trial judge 
had full power to rely upon a probation 
investigation report and this notwithstand­
ing the defendant's contention that his 
constitutional rights had been violated 
because he had not had access to the re­
port and the right to confrontation and 
rebuttal. This Court pointedly remarked 
that the imposition of the death sentence 
would not alter the principles of nondis­
closure, remarking that:

"We cannot say that the due process 
clause renders a sentence void merely 
because a judge gets additional out-of- 
court information to assist him in this 
awesome power of imposing the death 
sentence." Id. at 252.



36

The opinion of this Court authored by 
Mr. Justice Black contains many noteworthy 
statements expounding the philosophy of 
probation acceptable to this Court which 
is appropriately related to an understand­
ing and appreciation of the issue at hand. 
This Court recognized that Williams pre­
sented serious and difficult questions as 
to the constitutional rights of a defen­
dant at sentencing as well as the rules 
of evidence applicable to the manner in 
which a judge might obtain information to 
assist him in the disposition of a con­
victed offender. Following references to 
the need of rigid rules of evidence in a 
trial to determine the issue of guilt, 
the court then significantly pointed out:

"A sentencing judge, however, is not 
confined to the narrow issue of guilt. 
His task within fixed statutory and 
constitutional limits is to determine 
the type and extent of punishment



37

after the issue of guilt has been 
determined„ High! relevant— if 
not essential--to his selection of 
an appropriate sentence is the pos­
session of the fullest information 
possible concerning the defendant's 
life and characteristics. And 
modern concepts individualizing 
punishment have made it all the more 
necessary that the sentencing judge 
not be denied an opportunity to ob­
tain pertinent information by a re­
quirement of rigid adherence to 
restrictive rules of evidence proper­
ly applicable to the trial."
Id. at 247.

The Court then made appropriate references 
to the modern changes in the treatment of 
offenders which make it more necessary 
than in years past for observation of the 
distinctions in the evidential procedure 
in the trial and sentencing process. The 
expanding use of the indeterminate sen­
tence, and of probation itself, are ex­
amples of procedures resulting in an in­
crease in the discretionary powers employed 
in determing punishment. The Court then



38

indicated its appreciation of the fact 
that such procedures give rise to the 
need for the fullest information possible 
concerning the defendant's life and char­
acteristics as an aid in the selection of 
the most appropriate sentence. The Court 
noted that:

"The considerations we have set 
out admonish us against treating 
the due process clause as a uni­
form command that courts through­
out the Nation abandon their age- 
old practice of seeking informa­
tion from out-of-court sources to 
guide their judgment toward a more 
enlightened and just sentence....
The due process clause should not 
he treated as a device for freez­
ing the evidential procedure of 
sentencing in the mold of trial 
procedure. So to treat the due 
process clause would hinder--if 
not preclude--all c o u r t s s t a t e  
and federal, from making progres­
sive efforts to improve the ad­
ministration of criminal justice. " 
(Emphasis supplied.) Id. at 250.

It may be argued that the decision in
Williams did not go to the crux of the



39

matter of determining whether or not a 
defendant has a right to examine the 
presentence report. This argument ignores 
what the decision in Williams represents. 
It unmistakably represents that the use 
of confidential information by a trial 
judge in the imposition of a death sen­
tence violates no constitutional right of 
a defendant.

If the decision of this Court in 
Williams is distasteful to the propon­
ents of full disclosure, then surely the 
decision of Judge Holtzoff in United 
States v. Durham, 181 F.Supp. 503 (D.D.C. 
1960), cert, denied 364 U.S. 854 (1960), 
will be even less palatable to them.

"It is not the practice to per­
mit the defendant or his counsel 
or anyone else to inspect reports 
of presentence investigations.
Such reports are treated as con­
fidential documents.... In fact, 
it has been the traditional prac-



40

tice even before the system of 
presentence investigation was 
introduced for the court to re­
ceive information in confidence, 
which the court might or might 
not disclose to the defendant, 
as the court saw fit, that 
might bear upon the question of 
what sentence should be imposed.
The custom of treating reports 
as confidential documents is 
merely a continuation of that 
prior practice." Id. at 503,
504.

The basis of Judge Holtzoff's decision 
was, of course, this Court's decision 
in Williams. See Footnote 1 appended to 
the Durham decision.

Eight years later in 1968, Judge Car­
ter in Hancock Brothers, Inc. v. Jones, 

293 F.Supp. 1229 (D.C.N.D. Cal. 1968), 
held that presentencing memoranda pre­
pared in connection with sentencing of 
defendants in a criminal proceeding 
under the Clayton Act should not be made 
a matter of public record and disclosure



41

would not be compelled. Note the follow-
ing:

"If the confidential nature of a 
probation report is not protected, 
a serious curtailment could result 
in information now made available 
to sentencing judges. Hoover v.
United States, 268 F .2d 787 (10th 
Cir. 1959); United States v. Dur­
ham, 181 F .Supp. 503 (D.C. 1960) , 
cert. den. 364 U.S. 854, 81 S.Ct.
83, 5 L.Ed. 77 (1960); United 
States v. Greathouse, 188 F .Supp.
765 (Ala. 1960); Dillon v. United 
States, 307 F.2d 445 (9th Cir.
1962) (Barnes, J., dissenting;
Barnet and Gronewold, Confiden­
tiality of the Pre-sentence Report,
26 Fed.Prob. 26 (1962). 'To de­
prive sentencing judges of this 
kind of information would under­
mine modern penalogical procedural 
policies that have been cautiously 
adopted throughout the nation after 
careful consideration and experimen­
tation. ' Williams v. People of 
State of New York, 337 U.S. 241, 
249-250, 69 S.Ct. 1079, 1084, 93 
L.Ed. 1337 (1949)." Id. at 1232,
1233.
In the case of Hoover v. United States, 

268 F .2d 787 (10th Cir. 1959), the sen­
tence was attacked on the ground that the



42

presentence report contained many inaccur­
ate and untrue statements and that the defen­
dant was given no opportunity to contra­
dict or rebut them. In disposing of this 
attack, Chief Judge Bratton, writing for 
a unanimous court, commented as follows:

"One further challenge to the judg­
ment and sentence was that the pro­
bation service made a presentence 
investigation and report in the case; 
that the report contained many in­
accurate, untrue, and prejudicial 
statements; that it was an ex parte 
investigation; that appellant was 
not given any opportunity to con­
tradict or rebut the inaccurate, 
untrue, and prejudicial statements; 
that they prejudiced the court 
against appellant; and that in 
such manner he was denied due pro­
cess. Rule of Criminal Procedure 
32(c)(1), 18 U.S.C., provides that 
the probation service of the court 
shall make a presentence investiga­
tion and report to the court before 
the imposition of sentence or the 
granting of probation unless the 
court directs otherwise; and Rule 
32(c) (2) provides in presently 
pertinent part that the presentence 
investigation shall contain such 
information concerning the circum­
stances affecting the behavior of



43

the defendant as may be helpful 
in imposing sentence. The pre­
sentence investigation was made 
and the report submitted pursuant 
to the rule. And the action of 
the court in taking into consider­
ation and giving appropriate weight 
to the information obtained in that 
manner in determining the kind and 
extent of punishment to be imposed 
upon appellant within the limits 
fixed by law, without affording 
appellant an opportunity to con­
tradict or rebut statements con­
tained in the report, did not 
violate due process. Williams v. 
People of State of New York, 337 
U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 
1337." Id. at 790.
In the case of Specht v. Patterson,

386 U.S. 605 (1967), this Court had an 
opportunity to repudiate its holding in 
Williams but declined to do so. In 
Speoht, this Court condemned the proced­
ure followed by a Colorado state court in 
sentencing the defendant under the Color­
ado Sex Offenders' Act to an indetermin­
ate term of from one day to life. The 
defendant Specht was afforded no hearing



44

or right of confrontation for the pur­
pose of determining the validity of the 
conclusions stated in the reports of the 
psychiatrists. This Court held that the 
failure to grant such procedural safe­
guards as a hearing and the right of con­
frontation violated the due process require­
ments of the Fourteenth Amendment. In 
determining the applicability of Williams, 

this Court remarked as follows:
"We adhere to Williams v. New York, 
supra; but we decline the invita­
tion to extend it to this radically 
different situation." Id. at 329.
The decision in Baker v. United States, 

388 F .2d 931 (4th Cir. 1968), is informa­
tive. Although there, the sentence was 
vacated and the cause remanded because of 
the unusual factual situation, the comments 
of the Court on the issue of nondisclosure 
are interesting. Note the following:



45

"Fixed practices aside, we must 
observe that there is no obliga­
tion upon the Court to divulge, 
or any right in the defendant to 
see, the entire report at any 
time. See Williams v. State of 
Oklahoma, 358 U.S. 576, 79 S.Ct. 
421, 3 L .Ed.2d 516 (1959); Williams 
v. People of State of New York, 337 
U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 
1337 (1949); F.R.Crim.P. 32(c)(2), 
supra. Indeed, there could be dan­
ger in delivering it to the defen­
dant or his attorney for scrutiny. 
It could defeat the object of the 
report— to acquaint the court with 
the defendant's background as a 
sentencing guide--by drying up 
the source of such information.
See United States v. Fischer, 381 
F .2d 509 (2 Cir. July 24, 1967).
To illustrate, the probation offi­
cer could be deprived of the con­
fidence of trustworthy and logical 
informants--persons close to the 
accused--if they knew they could 
be confronted by the defendant 
with their statements. The inves­
tigation would then amount to no 
more than a repetition of the pub­
lic records--so limited a function 
as to obviate the need of a proba­
tion officer.

* * *



46

"Of course, the defendant's gen­
eral conduct and behavior, as well 
as his reputation in the community 
in regard to honesty, rectitude 
and fulfillment of his civic and 
domestic responsibilities, may be 
treated in the report. Whether 
any of such commentary should be 
released will remain in the discre­
tion of the District Judge. Names 
of informants, as well as intimate 
observations readily traceable by 
the defendant, ordinarily should 
be withheld lest, to repeat, dis­
closure cut off the investigator 
from access to knowledge highly 
valuable to the sentencing court.
It is to be expected of the judge, 
however, that he winnow substance 
from gossip." Id. at 933, 934.
As recently as 1975, the Fifth Circuit 

Court of Appeals had occasion to pass 
on the disclosure issue. There the appel­
lants contended that the District Court 
erred in denying them access to presen­
tence reports. The record did not dis­
close what, if any, information in the 
reports was relied upon by the trial 
judge. However, appellants urged that 
the nondisclosure was significant in light



47

of the disparity of sentences imposed on
the two defendants. In rejecting this
argument, the Fifth Circuit in United
States v , Horsley3 519 F .2d 1264 (5th Cir.
1975), remarked as follows:

"This Circuit has repeatedly held 
that the decision whether or not 
to disclose part or all of a pre­
sentence report submitted pursuant 
to Federal Rule of Criminal Proce­
dure 32(c)(2) lies within the dis­
cretion of the trial judge. United 
States v. Arenas-Granada, 5 Cir.,
1973, 487 F .2d 858, 859 (per cur­
iam) ; United States v. Thomas, 5 
Cir., 1970, 435 F.2d 1303 (per cur­
iam) ; United States v. Chapman, 5 
Cir., 1969, 420 F.2d 925, 926,* Good 
v. United States, 5 Cir., 1969, 410 
F .2d 1217, 1221; United States v. 
Bakewell, 5 Cir., 1970, 430 F.2d 
721, 722 (per curiam). We have also 
held that even where some errors 
in the presentenee report have 
come to light and been corrected, 
the trial judge may properly re­
fuse to disclose the remainder of 
the report to the defendant for 
purposes of ascertaining whether 
further mistakes have been made.
United States v. Jones, 5 Cir.,
1973, 473 F.2d 293, cert, denied,
411 U.S. 934, 93 S.Ct. 2280, 36 
L.Ed.2d 961."

* * *



48

"The leading Supreme Court case 
regarding access to presentence 
reports, Williams v. New York,
337 U.S. 241, 69 S.Ct. 1079, 93 
L.Ed. 1337 (1949), has not been 
overruled. In Williams, the Court 
sustained a death sentence imposed 
on the basis of a presentence re­
port, despite a jury recommendation 
of a life sentence. The Court held 
that the due process clause does 
not require that a sentence be 
based on information received in 
open court, noting that much of 
the information relied upon by 
judges in presentence reports would 
be unavailable if it were restricted 
to that given in open court by wit­
nesses subject to cross-examination."
Id. at 1266, 1267.
The use of a presentence report is an

integral part of Florida's sentencing
procedure. In Proffitt v. State of

Florida, ____U.S._____ , 49 L.Ed.2d 913,
96 S.Ct.______ (1976), this Court put its
unmistakable stamp of approval on Florida's
capital-sentencing procedures.

"The Florida capital-sentencing 
procedures thus seek to assure 
that the death penalty will not 
be imposed in an arbitrary or



49

capricious manner. Moreover, to 
the extent that any risk to the 
contrary exists, it is minimized 
by Florida's appellate review sys­
tem, under which the evidence of 
the aggravating and mitigating cir­
cumstances is reviewed and reweighed 
by the Supreme Court of Florida ' to 
determine independently whether the 
imposition of the ultimate penalty 
is warranted.' Songer v State, 322 
So 2d 481, 484 (1975). See also 
Sullivan v. State, 303 So 2d 632,
637 (1974). The Supreme Court of 
Florida, like that of Georgia, has 
not hesitated to vacate a death 
sentence when it has determined 
that the sentence should not have 
been imposed. Indeed, it has 
vacated eight of the 21 death sen­
tences that it has reviewed to date. 
See Taylor v State, 294 So 2d 648 
(1974); LaMadline v. State, 303 So 
2d 17 (1974); Slater v State, 316 
So 2d 539 (1974); Swan v State, 322 
So 2d 485 (1975); Tedder v State,
322 So 2d 908 (1975); Halliwell v. 
State, 323 So 2d 557 (1975); Thomp­
son v State, 328 So 2d 1 (1976);
Messer v State, 330 So 2d 137 (1976)." 
Id. at 49 L .Ed.2d 913 at 923.
Florida Rule of Criminal Procedure

3.713 is remarkably similar to Federal
Rule of Criminal Procedure 32 (c) (3).
Subsection (a) of the Florida rule pro­
vides :



50

"The trial judge may disclose any 
of the contents of the presentence 
investigation to the parties prior 
to sentencing. Any information so 
disclosed to one party shall be dis­
closed to the opposing party."

See also Subsections (b) and (c). The 
federal rule at Subsection (c)(3)(A) pro­
vides :

" (A) Before imposing sentence 
the court shall upon request 
permit the defendant, or his 
counsel if he is so represen­
ted, to read the report of the 
presentence investigation exclu­
sive of any recommendation as to 
sentence, but not to the extent 
that in the opinion of the court 
the report contains diagnostic 
opinion which might seriously 
disrupt a program of rehabilita­
tion, sources of information ob­
tained upon a promise of confiden­
tiality , or any other information 
which, if disclosed, might result 
in harm, physical or otherwise, 
to the defendant or other per­
sons; and the court shall afford 
the defendant or his counsel an 
opportunity to comment thereon 
and, at the discretion of the 
court, to introduce testimony or 
other information relating to any 
alleged factual inaccuracy con­
tained in the presentence report." 
(Emphasis supplied.)



51

Thus, both rules permit the exercise of a 
reasoned discretion by the trial judge in 
the disclosure in determining the extent 
of disclosure of the contents of a pre­
sentence report. At this point, the words 
of Mr. Justice Adkins in writing the major­
ity opinion in State v. Dixon3 283 So.2d 1 
(Fla. 1973), come to mind.

"Two points can, however, be gleaned 
from a careful reading of the nine 
separate opinions constituting Furman 
v. Georgia, supra. First, the opin­
ion does not abolish capital punish­
ment, as only two justices— Mr. Jus­
tice Brennan and Mr. Justice Marshall 
— adopted that extreme position. The 
second point is a corollary to the 
first, and one easily drawn. The 
mere presence of discretion in the 
sentencing procedure cannot render 
the procedure violative of Furman v. 
Georgia, supra; it was, rather, the 
quality of discretion and the manner 
in which it was applied that dictated 
the rule of law which constitutes 
Furman v. Georgia, supra.
"Discretion and judgment are essential 
to the judicial process, and are pre­
sent at all stages of its progression 
— -arrest, arraignment, trial, verdict,



52

and onward through final appeal.
Even after the final appeal is 
laid to rest, complete discretion 
remains in the executive branch 
of government to honor or reject 
a plea for clemency. See Fla. 
Const., art. IV, § 8, F.S.A., and 
U.S. Const., art. II, § 2.
"Thus, if the judicial discretion 
possible and necessary under Fla. 
Stat. § 921.141, F.S.A., can be 
shown to be reasonable and con­
trolled, rather than capricious 
and discriminatory, the test of 
Furman v. Georgia, supra, has 
been met. What new test the 
Supreme Court of the United States 
might develop at a later date, it 
is not for this Court to suggest.

*  *  *

"Review by this Court guarantees 
that the reasons present in one 
case will reach a similar result 
to that reached under similar 
circumstances in another case.
No longer will one man die and 
another live on the basis of race, 
or a woman live and a man die on 
the basis of sex. If a defendant 
is sentenced to die, this Court 
can review that case in light of 
the other decisions and determine 
whether or not the punishment is 
too great. Thus, the discretion 
charged in Furman v. Georgia, supra, 
can be controlled and channeled



53

until the sentencing process be­
comes a matter of reasoned judg­
ment rather than an exercise in 
discretion at all.” Id. at 6, 7,
10.
Much has been said and written on the 

issue of disclosure versus nondisclosure 
of the confidential portion of a pre­
sentence report. Petitioner's entire 
brief is based on the premise that because 
of the failure of the trial judge to sua 
sponte furnish counsel for both parties 
a copy of the confidential portion of the 
presentence report he has suffered a 
grievous denial of his constitutional 
rights. A reading of petitioner's brief 
conveys the unmistakable impression that 
the confidential portion of the presen­
tence report contains gross inaccuracies, 
misrepresentations, and other distortions 
of the truth. It is urged that all of 
these terrible accusations could have been



54

rebutted and the truth of the matter shown 
if only petitioner and/or his counsel could 
have been furnished with a copy thereof. 
Therefore, respondent has secured a copy 
of the "Confidential Evaluation" which is 
the confidential portion of the presentence 
report that was furnished to the trial 
judge at the sentencing phase of petitioner's 
trial. It forms the appendix to this brief.

It is readily apparent that most, if not 
all, of the material found in the confiden­
tial portion is also contained in the non- 
confidential portion (A 133-137). The 
truth of the matter is there is nothing 
in the confidential portion that is not 
found in the non-confidential part of the 
presentence report. A fair appraisal of 
both the confidential and the non- 
confidential portions of the presen­
tence report compels the conclusion that



55

failure to furnish a copy of the confiden­
tial portion to petitioner did not result 
in a denial of any of his constitutional 
rights.

Conclusion

The judgment of the Supreme Court of 
Florida should be affirmed.

Respectfully submitted,
Robert L. Shevin 
Attorney General

By:
Wallace E. Allbritton 

Assistant Attorney General



56

CONFIDENTIAL EVALUATION 
Name Daniel Wilbur Gardner Dist. # 4 2 __
I. Offense; It is obvious that the subject 
has received a fair trial. He apparently 
was under heavy influence of alcohol, which 
was normal for him. Apparently, he beat 
his wife to an extreme on this occasion, 
which resulted in her death. It is pos­
sible that the subject did not remember 
what he did, due to the fact that he was 
highly intoxicated. He continually showed 
remorse for what happened, claimed that
he did not remember, feels he should not 
be held responsible for something that he 
cannot remember.
II. Prior Arrests & Convictions: A check 
of the subject's record will indicate that 
he is a drinker, has been arrested several 
times for disorderly conduct, and fight-

A p p e n d i x  "A"



57

ing. The charge in Ft. Myers on 7-20-50 
for investigation of Aggravated Assault 
was not able to be verified, due to the 
fact that the time limit involved. It 
is noted that the records in Ft. Myers 
are quite sketchy about what happened. 
The subject volunteered the statement 
that this attack was the result of his 
first wife. He stated that they appar­
ently had a fight and she went off with 
somebody to a trailer. He claims he 
went by the trailer and heard his wife 
telling the person to leave her alone.
He stated he broke into the trailer, 
noticed a colored man sitting in the 
front parlor with no clothes on and his 
wife in the back room with a white man 
apparently fighting or arguing. He 
stated that he took out his knife and

Appendix "A"



58

told the colored man to get out of there, 
and went back to the bedroom he apparently 
claimed brushed past his wife and cut her 
with the knife and threatened the other 
man. He stated this all subsided when 
the States Attorney saw the disposition of 
the case and stated that, the man had every 
right to defend his wife, so eventually 
the charge was dropped. The Other Assault 
charges on 4-2-70 and 4-21-72, were Assaults 
and Battery, both being on the subject's 
wife. It should be noted that these charges 
were dropped at the request of the wife.
III. Plan: Subject does have an adequate
residence and employment plan in Homosassa, 
but it is felt that this subject is no fit 
candidate for Probation.
IV. Analysis: Before the Court is a 39

Ap p e n d i x  "A"



59

year old white male who was charged with 
and found guilty of Murder in the 1st 
degree.
This offense is the result of the subject 
apparently under the influence of alcohol, 
administering a severe beating, both with 
his hands and feet and objects. Appar­
ently, beat his wife to death over no 
apparent reason.
This subject has resided most of his life 
in the Homosassa area, being considered 
the usual drinker and fighter. His 
younger life was spent mostly being shifted 
around from Mother to Boys Home. The 
subject was more or less to let run on 
his own, without any supervision. Sub­
ject was married twice, the second mar­
riage being to the victim in this case.

Appendix "A"



60

It should be noted that this subject is 
a heavy drinker, which apparently has 
governed most of his life. Subject spent 
a short time in the Air Force, stating 
that he received a General Discharge under 
honorable conditions. He stated that he 
did spend some time in the brig, which 
was mostly due to drinking and disobey­
ing orders. Subject does have a trade as 
a carpenter, but apparently only works when 
he feels too. Florida Power indicated 
that he had worked on and off for the 
past five years, but apparently was 
laid off, mostly due to his drinking.
They noted that the subject was not work­
ing, two months prior to this incident. 
Criminal Record: The subject does possess

Ap p e n d i x  "A"

a fairly long record, most of it due to



61

drinking and fighting and Assault charges 
as a result of drinking. It should be 
noted that the subject in these charges 
has had at least three times when he has 
beat on his wife. The subject does pos­
sess an Assaultive nature and apparently 
is aggravated by drinking.
Most of the feelings in this case are 
against the subject. Police feel that he 
is an extremely poor candidate for Proba­
tion due to his drinking and fighting, 
also they feel that he should not be 
allowed on the streets, due to what he 
did to his wife.
It is the opinion of this supervisor that 
the jury in this case found a true verdict 
and the subject had a fair trial, that he 
would be an extremely poor candidate for

A p p e n d i x  "A"



62

Ap p e n d i x  "A"

probation.
Respectfully Submitted,

Michael C. Dippolito, 
District Supervisor
MCD/kb 
1-28-7 4