RAYMOND THOMPSON,
Appellant,
_-
IN THE SUPREME COURT OF FLORIDA
k , ZS * * ' " * 4
' .
APPEAL NO. 69,352
vs . (CASE NO. 85-899CFA)
STATE OF FLORIDA,
ON APPEAL FROM THE CIRCUIT COURT,
SEVENTEENTH JUDICIAL CIRCUIT, BROWARD
COUNTY, FLORIDA - CRIMINAL DIVISION
APPELLANT'S INITIAL BRIEF
JANE D. FISHMAN, ESQ.
Counsel for Appellant
8243 Northwest Eighth Place
Plantation, Florida 33324
(305) 473-2613
Florida Bar No. 300561
4 'r
TABLE OF CONTENTS
I CERTIFICATE OF SERVICE . . . . . . . . . . . .
TABLE OF CASES
PRELIMINARY STATEMENT
STATEMENT OF THE CASE AND FACTS . . . . . . .
QUESTIONS PRESENTED ,.
SUMMARY OF ARGUMENT
ARGUMENT
POINT I - THE TRIAL COURT ERRED IN
DENYING APPELLANT'S MOTION FOR A NEW
TRIAL DUE TO THE STATE'S FAILURE TO
DISCLOSE BRADY MATERIAL TO THE DEFENSE. .
POINT I1 - THE TRIAL COURT ERRED IN
PERMITTING THE STATE'S WITNESSES TO
TESTIFY TO BAD ACTS OF THE DEFENDANT
WHICH MERELY WENT TO HIS PROPENSITY
TO COMMIT A CRIME
POINT I11 - THE TRIAL COURT ERRED IN
DENYING APPELLANT'S MOTION TO DISMISS
ON DOUBLE JEOPARDY GROUNDS. . . . . . . .
POINT IV - THE TRIAL COURT WAS WITHOUT
JURISDICTION OVER A HOMICIDE COMMITTED
ON THE HIGH SEAS. . . . . . . . . . . . .
POINT V - THE TRIAL COURT ERRED IN
OVERRIDING THE JURY'S RECOMMENDATION
OF LIFE SENTENCE AND IMPOSING THE
DEATH PENALTY
POINT VI - THE DEATH PENALTY PRESCRIBED
IN FLORIDA STATUTE SECTION 921.141 IS
UNCONSTITUTIONAL ON ITS FACE AND AS
APPLIED IN THIS CASE.
CONCLUSION . . . . . . . . . . . . . . . . . .
PAGE
i,ii,iii
1
2
11
12
-
14
21
26
28
29
42
44
44
4 ‘ h
TABLE OF CASES
-CASE
Amazon V. State,
487 S0.28 8 (Fla.), cert. denied
107 S.Ct. 314 (1986) 32
Arango V. State,
497 So.2d 1161 (Fla. 1986) 19,20
20
Boshears V. State,
511 So.2d 72 1 (Fla.App. 1st DCA 1987)
Brady V. Maryland,
373 U.S. 83 (1963) 14,15116
17,19,20
Brooking8 V. State,
495 So.2d 135 (Fla. 1986) 34
Brown V. State,
s0.26 12 PLW 577
m a . Nov.12, 1987) 15
Buckrem v. State,
355 So.2d 111 (Fla. 1977) 32
Cannady V. State,
427 So.2d 723 (Fla. 1983) 32
Cipollina v. State,
501 So.2d 2 (Fla.App. 2d DCA 1986) 20
Davis v. Alaska,
415 U.S. 308 (1974) 20
Divans V. California,
434 U.S. 1303 (1977) 26,27
Fead V. State,
512 So.2d 176 (Fla. 1987) 29,32,34,
38 , 39
Ferry V. State,
507 So.2d 1373 (Fla. 1987) 29
Furman v. Georgia,
408 U.S. 238 (1972) 42
Giglio V. United States,
405 U.S. 150 (1972 1 15,20
i
Hansbrough V. State,
509 So.2d 108 1 (Fla. 1987)
Huddleston V. State,
475 So.2d 204 (Fla. 1985)
Johnson V. State,
432 So.2d 5' 83 (Fla.App. 4th DCA 1983)
Keen V. State,
504 So.2d' 396 (Fla. 1987)
Malloy V. State,
382 So.2d 1190 (Fla. 1979)
McCaskill V. State,
344 So.2d 1276 (Fla. 1977)
Miller V. Wainwright,
(Mern.Op. Case No. 83-F.Supp. - 849 m-T-13)(M.D. Fla. Nov. 13, 1987)
Moore V. Kern
702 (11 Cir. 1987)
Napue V. Illinois,
360 U.S. 264' (1959)
Parker V. State,
458 So.2d 750 (Fla. 1984)
Phippen v. State,
389 So.2d 991 (Fla. 1980)
Richardson V. State,
246 So.2d 7\11 (Fla. 1971)
Riley v. State,
366 So.2d 19 (Fla. 1978)
Sims V. State,
444 So.2d 922 (Fla), cert. denied
104 S.Ct. 3525 (1983)
State V. Hall,
509 So.2d 1093 (Fla. 1987)
Straight V. State,
397 So.2d 90 3 (Fla. 1981)
Tedder V. State,
322 So.2d 908 (Fla. 1975)
31
32,33
21
28
35
41
15,17,18
16
17
36
32,36 ,37
15
36
25
15
21
29,38
ii
Thomas v. State,
456 So.2d 454 (Fla. 1984)
Thompson V. State,
456 So.2d 444 (Fla. 1984)
United States V. Agurs,
427 UDS. 97 (1976 1
United States V. Bagley,
473 UDS. 667 (1985)
United States V. Difrancesco,
449 U.S. 117 (1980 1
Wade v. Hunter,
336 U.S. 684 (1949)
Wasko v. State,
505 So.2d 1314 (Fla. 1987)
Weitz v. State,
518 S0.26 1060 (Fla.App. 4th DCA 1987)
Williams V. State,
386 So.2d 53 8 (Fla. 1980)
STATUTES
18 U.S.C. Section 7, (1984)
Florida Statutes, Section 90.404 (1979)
Florida Statutes, Section 910.005 (1977)
Florida Statutes, Section 921.141 (1983)
Florida Rules of Criminal Procedure, 3.220
36
34,39
15
15,17
26
26
31,35
21
24,36
28
21
28
42
14
iii
PRELIMINARY STATEMENT
Appellant, RAYMOND THOMPSON, was found guilty of first
degree murder by a jury on June 5, 1986, (R.Vol.21, 3161). After
a full sentencing proceeding on June 20, 1986, the jury
recommended that Appellant be sentenced to life imprisonment
(R.2896).
Notwithstanding the jury's recommendation of life, the trial
judge sentenced Mr. Thompson to die in the electric chair
(R.3340-3351). It is from this judgment and sentence of the
Circuit Court, Seventeenth Judicial Circuit, Broward County,
Honorable Stanton S. Kaplan presiding, that Mr. Thompson now
appeals. This Court has jurisdiction pursuant to Art.V, Section
3(b) (l), Fla.Const.
In the court below, the State of Florida was the prosecution
and Appellant was the defendant.
All references are to the record on appeal and are
designated by "R." followed by the appropriate page numbers.
-1-
STATEMENT OF TEE CASE AND FACTS
In June, 1981, Appellant had a safe installed in the floor
of the woodworking shop of Jimmy Savoy (R.1561-2, 1577, 1952).
Savoy was an old friend and associate of Appellant (R.901)-
Friendship notwithstanding, in August, 1981, Savoy rented a
jackhammer and dug up his friend's safe (R.1791, 825-6). Savoy
sold his business suddenly and fled South Florida with
Appellant's safe containing $600,0001 Savoy bought himself a
brand new gold Camaro in Jacksonville to make his escape (R.1407-
10, 873)-
On August 24, 1981, Jimmy Savoy met with his son Richard in
Mas~achusetts. The father told his son that he was in trouble,
that he had stolen a safe, and that he needed a locksmith to open
the safe. Richard Savoy told his father that he wanted no part
of his crime8 Jimmy Savoy never rpoke to his son Richard again
(Re15151 1518)
Carole McLoughlin, Jimmy Savoy's former girlfriend,
testified that Savoy left Florida suddenly in late August, 1981,
after selling his business (R.1409-1410). Savoy called
McLoughlin several times, and on September 26, McLoughlin met
Savoy at a hotel in Pompano (R.1410-1414, 1417). McLoughlin
claimed that Savoy was very nervous and afraid. He refused to
rent or buy a place to live in his own name, so he paid $30,000
cash for a trailer and put it in her name (R.1417-1421).
Notwithstanding Savoy's supposed terrible fear of being found, he
returned to Florida one month after his theft, bought a trailer
near some of his former associates, and went to the same
4 , L
neighborhood bar nearly every day (R.1432, 1529). According to
McLoughlin, she visited Savoy at his Boca trailer every other
weekend and he telephoned her several times during each week.
She spoke to Savoy on March 7, 19821 when she arrived for her
weekend visit she found Savoy gone, newspapers on his lawn from
Tuesday, March 9, through Friday, March 12, and Savoy's
belongings in the trailer (R.1425, 1429). Although McLoughlin
never saw or heard from Savoy again, she heard from Jevel Woods,
Savoy's neighbor, that Woods saw Savoy at the trailer in May,
1982, (R.1456, 226202264). After that conversation with Mrs.
Woods, Carole McLoughlin withdrew all the money from the joint
bank accounts that Jimmy Savoy had opened for them (R.460).
Bobby Davis, also known as Bobby Vegas, Bobby Allan, Bob
Grant, Brad Meyers and Dean Davis (R.1063), worked for Appellant
on and off for several years. In the spring of 1984, when his
wife was subpoenaed to appear before a federal grand jury, Davis
was worried that he was about to be prosecuted for several crimes
he committed. He considered fleeing the country, but elected
instead to go to the FBI with his promise to solve the Savoy
disappearance and other open cases (R.987, 1029-1034).
Davis' decision to go to the FBI rather than flee the
country turned out to be a sound investment for Davis. In
exchange for his promise to implicate Raymond Thompson, Davis was
permitted to plead guilty to three counts of second degree murder
with a sentencing promise of no more than ten years on each
count, to run concurrently (R.1014, 1156-1157).
In addition, Davis and his wife were supported by the
-3-
federal government. Mr8. Davis received more than $36,000 in
subsistence. Also included in Davis' bargain were travel and
moving expenses, food, a car and insurance, expense money and
even the cost of hou6ing Davis' dog in a kennel (R.1037-1045).
In exchange for cash and a lenient sentence that resolved
all of his outstanding charges, Bobby Davis testified that he,
Bobby Stephens, Pat Menillo and Appellant killed Jimmy Savoy
(R.960). At trial, Bobby Davis told this story:
In September, 1981, Ray Thompson told Davir that Jinuny Savoy
had stolen his money. Appellant said he wanted to find Savoy and
kill him (R.900, 902). Davis testified that Pat Menillo and
Scott Errico were trying to find Savoy for Appellant (R.902).
Henillo and Errico thought they had found Savoy in
Massachusetts. According to Davis, he and Appellant flew to
Boston based on Xenillo and Errico's call, but when they got
there, they found not Savoy, but his son (R.903, 917).
Davis said that they all returned to Florida in late
September and that, a few weeks later, Appellant found a card at
his door from the FBI saying that the FBI knew that Savoy had
stolen Appellant's money and that Appellant wanted to kill Savoy
(R.905)
Notwithstanding the FBI's communication to Appellant, Davis
testified that at that time Appellant told Davis that Appellant
was putting an "open contract" out on Jimmy Savoy's life (R.925-
926, 1081).
Robbert Tippie, also known as Bobby Dania, testified that he
saw Appellant in July, 1981, and that Appellant told him that
-4-
Savoy had stolen his $600,000. Bobby Dania asked Appellant if he
thought he'd get the money back. According to Dania, Appellant
said, '1 don't give a shit about the money. I just want the son
of a bitch dead.' (R.1690-1691). Shortly thereafter, Dania said,
Appellant offered a man at the race track $100,000 to find Savoy
(R.1693). In exchange for this testimony, Tippie/Dania received
immunity from all state and federal prosecutions, cash and direct
benefits worth more than $67,000 for 1985 and for January to
April, 1986, and training, job placement and a new identity as
part of the witness protection program (R.1697, 1707-1713, 1716).
Bobby Davis, apparently, heard no more about Jimmy Savoy
until March, 1982, when he received a telephone call from Bobby
Stephens, also known as Bobby Weasel (R. 926, 1698, 2040).
Stephen8 ran a "chop shop", occasionally did some work at
Appellant's marina, and, with his wife, often baby-sat for Mr.
Thompson's young son, Charlie Boy (R.926, 2139-2140, 2151-2152).
Stephens testified against Appellant in exchange for a plea to
kidnapping and second degree murder with a 10 year sentence#
several other state and federal charges were also disposed of by
this plea. Bobby Davis told Stephens that Jimmy Savoy stole
$600,000 from Appellant and that Appellant was looking for Savoy
(R.2040, 2150). In March, 1982, Bobby Stephens telephoned Bobby
Davis to tell Davis that he had seen Jimmy Savoy at the Cricket
Club, a small bar near Stephens' West Boca home and near Savoy's
mobile home (R.926-927, 2039-2040).
At this point, Davis' and Stephens' stories begin to differ
from each other and from their own prior statements. Davis' said
-5-
4 ,
a t t r i a l t h a t h e t h e n n o t i f i e d Ray Thompson, Pat Menillo and
S c o t t Errico and t h a t Davis, Menillo and Errico went t o t h e
C r i c k e t Club t h e next night. They met Stephens t h e r e , saw t h a t
Savoy was t h e r e and then planned a car accident so they could
grab Savoy. Bobby Stephens t h e n went home while Davis, Menillo
and Errico stayed to w a i t for Savoy (R.926-929).*1
According to Stephens, however, after he c a l l e d Bobby Davis
he went home. Davis came to h i s home t h a t n i g h t to see him, but
they d i d n ' t go to t h e bar (R.2041, 2095). Bobby Davis left
Stephens' home but returned a t nine t h e next morning, picked
Stephens up and drove him to a bar i n Hallandale. There Stephens
met with Appellant, Davis, Menillo, and Errico. He t o l d them he
thought he'd seen Savoy but wasn't sure i f it was him. Davis
then drove Stephens back to West Boca and then l e f t . Davis then
returned again t h a t n i g h t with Menillo and Errico and they a l l
went to t h e C r i c k e t Club (R.2042-2044, 2095-2098).
A t t h e Cricket Club, Menillo and Errico confirmed t h a t t h e
man was Savoy. They and Davis waited for Savoy to leave the bar.
When Savoy came o u t and got i n t o h i s Camaro, Menillo and Errico
l e f t t h e parking l o t ahead of him i n t h e i r Chevette. Davis
followed Savoy i n h i s S e v i l l e (R.929).
A t a s t o p l i g h t , Bobby Davis ran h i s car i n t o Savoy's. When
they got out of t h e i r cars to i n s p e c t t h e damage, Errico grabbed
1/ In h i s previous statements to t h e p o l i c e Davis t o l d a
d i f f e r e n t s t o r y - t h a t when he got Stephens' phone call he took a
taxi r i g h t to t h e C r i c k e t Club, c a l l e d Menillo and E r r i c o to meet
him and they kidnapped Savoy on t h e f i r s t n i g h t , without any
involvement by Appellant (R.1067, 1099). See, i n f r a , Point I,
page 17, for f u r t h e r d i s c u s s i o n of t h i s issue.
-6-
s. "
Savoy and dragged him into Davis' cat. Davia and Menillo were
armed with guns, Errico with a knife. They parked the Chevette
in a nearby lot, Savoy's Caraaro by the side of the road, and then
drove back to Bobby Stephenr' house (R.930-932, 2044).
Bobby Stephens raid that Davis woke him at four a.m.
(R.2044). Davis, Errico, and Menillo took Savoy into Stephens'
back bedroom (R.947, 2045). They tied Savoy's hands and feet1
when Savoy tried to escape, Bobby Stephen8 threatened him with
hi8 gun (R.2046-2047).
The next day Appellant came to Stephenr' house to talk to
Savoy (R.2047-2048, 951). Savoy told Appellant that he stole his
money, but claimed that it had in turn been stolen from him by a
prostitute in South Carolina. According to Bobby Davis,
Appellant did not believe Savoy and told Savoy that he would be
killed if he didn't return the money and he "could die easy or
hard" (R.951). Davis then said that Appellant told him to bring
Savoy to Appellant's house, to put him on the boat for the night,
and they would kill Savoy the next day (R.952-953). Appellant
left Bobby Stephens' house after 45 minutes. After Appellant had
left, Bobby Davis inetructed Stephens, Errico and Menillo to take
Savoy to Appellant's boat, which they did (R.2048-2049, 954).
Bobby Davis guarded Jinmy Savoy down below on the boat that
night. The next morning Davis, Bobby Stephens, Pat Menillo, and
Appellant took the boat out. Davis had tied Savoy up with ropes;
Pat Menillo brought weights and chains which Davia wrapped on to
Savoy (R.954-956, 958). Bobby Stephens drove the boat, a 28 foot
Scarab, with Appellant and Pat Henillo standing alongside him
throughout (R.2049,2051-2052, 2101, 2103) . Bobby Davia remained
below with Savoy, but claimed t h a t Appellant also came below to
again question Savoy and to order Davis to beat Savoy (R.956-
958).
Bobby Davis brought Savoy topside when Bobby Stephens
stopped t h e boat (R.958, 2052-2053). A t t h i s point, Bobby Davis'
testimony d i f f e r s r a d i c a l l y from Bobby Stephens'. Bobby Davis
claimed t h a t he and Pat Menillo stood on e i t h e r s i d e of Jimmy
Savoy with Savoy leaned o u t over t h e s i d e of t h e boat and
Appellant behind him. AccorUing to Davis, Appellant s a i d 'so
long, motherfucker', took Davis' gun becaulse he himself was
unarmed, and shot Savoy i n t h e back of t h e head. Davis and
Menillo threw t h e weights overboard and watched Savoy s i n k
(R.959-961).
Bobby Stephens, on t h e o t h e r hand, t e s t i f i e d t h a t Davis,
Menillo and Appellant were a l l standing around Savoy when
Stephen8 heard a shot. Before t h e s h o t , Stephens saw Bobby Davis
with Davis' gun. After t h e s h o t , when Stephens looked up, he
again saw Bobby Davis with t h e gun. Davis then broke t h e gun
down and threw t h e pieces overboard. Stephens never saw
Appellant with t h e gun (R.2054-2055, 212302124, 962-963).
Stephens drove t h e boat back to Appellant's house.
Appellant asked Stephens to get r i d of Savoy's car so Stephens
decided to c u t it up and dispose of t h e pieces. Steve Chiappa
rented torches and brought them to Stephen8 who c u t t h e car i n t o
f i f t y small p i e c e s which he dumped i n various canals. Stephens
dumped t h e large pieces - t h e engine block, t h e transmission and
-8-
' 9 ' I
the rear end of the car - about 600 pounds of machinery, in the
Johnson Road canal (R.2060, 2057, 2059, 2061, 2104-2105, 964-970,
1789).
In May, 1984, Bobby Davis went to the FBI to work out his
deal for testifying against Ray Thompson. In addition to giving
numerous, often inconsistent statements, Davis agreed to wear a
wire and go see Mr. Thompson in January, 1985, in the hope of
eliciting an incriminating statement from him. In that
conversation Davis told Appellant that he was asked about Savoy.
Appellant asked Davis what he was all excited about and told
Davis not to worry, that the police were just shooting in the
dark. They then talked about a truck that Davis had borrowed
from Appellant, unrelated to the Savoy investigation (R. 2018,
2020, 2024).
Based on Bobby Davis' specific statements to the authorities
concerning where in the ocean Savoy's body was left, where the
large parts of Savoy's car were dumped, and where the car was
torched apart, a widespread investigation for physical evidence
was conducted. Bobby Stephens' house was searched, the FBI
vacuumed Stephens' garage to test trace evidence, canals were
dragged, and pilots and divers searched the pinpointed areas of
the ocean for weeks. Notwithstanding this extensive, repeated
investigation, no part of Savoy's car was ever found in any
canal, the FBI found not even a trace of evidence of Savoy's car
in Stephens' garage, nor did the police ever find any trace of
the metal chains Savoy was allegedly bound with. Nor has any
trace of Savoy's body ever been found (R.1088-1090, 1173, 1289-
-9-
I- I ' I
1299, 1307-1312, 1328-1340, 1401, 1543-1545, 1814-1817, 1827-
1833, 183601848, 184901853? 1858, 187301885? 1887-1890, 2079-
2081, 2105, 2138, 2246-2248). Thus, not a single shred of
physical evidence was introduced to corroborate Davis' story.
Jewel Woods, Savoy's neighbor at the trailer park testified
that she saw Savoy in May, 1982 (R.2262). In addition, Ann
Chiappa, a friend of Appellant's and of Jimmy Savoy's, testified
that she saw Savoy in late December, 1982 at funeral services for
Appellant*s seven-year-old son, Charlie Boy, who died when he was
hit by a car (R.2320,2322-2323).
-10-
QUESTIONS PRESENTED
Whether the trial court erred in denying Appellant's motion
for a new trial where the state failed to disclose critical Brady
material to the defense?
Whether the trial court erred in allowing extensive
Appellant testimony of other crimes and bad acts by which served
only to prove his propensity to commit this crime?
Whether the trial court's failure to dismiss the charge8
against Appellant put Appellant in jeopardy twice, in violation
of the state and federal constitutions?
Whether the trial court was without jurisdiction over a
homicide committed on the high seas?
Whether the trial court erred in overriding the jury's
recommendation of life imprisonment where a reasonable basis for
that recommendation appears in the record and the facts
suggesting the death penalty are not so clear and convincing that
reattonable people could not differ?
Whether the death penalty is unconstitutional on its face or
as applied in this case?
-11-
SUMMARY OF ARGUXENT
As to the trial:
Appellant 18 entitled to a new trial because the State's
failure to disclose critical Brady material - a sworn affidavit
of the State's star witness inconsistent with his trial
testimony - undermines any confidence in the outcome of
Appellant's trial.
Appellant i8 also entitled to a new trial because the trial
court improperly allowed extensive testimony as to bad acts and
uncharged crimes to be received in evidence making it likely that
the jury may have convicted Appellant of this crime because of
inadaissfble evidence tending to show his bad character or
propensity of other crimes.
Appellant is entitled to a reversal of his conviction and a
dismissal of the charge8 against him because this trial violated
the constitutional protections against double jeopardy.
Appellant's first trial was aborted when a state police witness
deliberately violated the trial court's order not to mention
other homicides that Appellant was alleged to have cornnitted.
Where the government provokes a mistrial to gain an advantage
over a defendant, retrial is barred by the double jeopardy
clauses of the United States and Florida constitutions.
As to the death sentence:
There was no reason for the trial judge to override the
jury's recommendation of life imprisonment. The jury's
recommendation is entitled to great weight and the facts relied
-12-
on by the trial judge to support the death penalty are not so
clear and convincing that reasonable people could not differ.
The death penalty is unconatitutional on its face and as
applied in this particular case.
-13-
POINT I
THE TRIAL COURT ERRED I N
DENYING APPELLANT'S MOTION FOR
A NEW TRIAL DUE TO THE STATE'S
FAILURE TO DISCLOSE BRADY MATERIAL
TO THE DEFS
h o r t l y after h i s indictment i n t h i s case, Appellant f i l e d ,
on February 12, 1985, a demand for discovery pursuant to Rule
3.220, F1a.R.Crim.P. requesting, inter a l i a , written or recorded
statements, or t h e substance of oral statements, of any codefendants,
and, any exculpatory evidence, including any w r i t t e n
or oral statements of any person. See, R.2984, 3003, 3008, 3322,
3295. And, of course, pursuant to Rule 3.220, after demand by a
defendant, t h e prosecutor must d i s c l o s e t h e names, addresses and
a l l statements of every person i n c l u d i n g co- defendants, known to
t h e prosecutor to have information relevant to t h e chargea, or to
any d e f e n s e . Pursuant to Rule 3.220(f) t h e prosecutor's
o b l i g a t i o n is a continuing duty.
-
On October 23, 1985, t h e S t a t e ' s s t a r witness, Bobby Davis
swore to an a f f i d a v i t i n support of t h e S t a t e ' s request for t h e
e x t r a d i t i o n of t h e co-defendant Scott Errico (R.3324, 3312).
That affidavit, although known to t h e State, clearly
d i s c o v e r a b l e , and c e r t a i n l y w i t h i n t h e scope of Appellant's
demands for discovery and for Brady material, was never turned
over to t h e defense. I t was only discovered after t h e t r i a l i n
t h i s case through t h e efforts of Appellant's t r i a l counsel
(R.3327).
In spite of t h e State's clear breach of t h e discovery
-14-
requirements of the Florida Rules of Criminal Procedure, the
trial court simply denied Appellant's motion for a new trial.
The court did not conduct the evidentiary hearing mandated by
law to determine the cause for the breach, the prejudice to the
defense and the appropriate sanctions. Richardson V. State, 246
S0.2d 771 (Fla.1971). The failure to comply with Richardson is,
of course, per se reversible. Brown V. State, , 12
FLW 577 (Fla. Nov. 12, 1987); State V. Hall, 509 80.2d 1093 (Pla.
1987).
- - So.2d -
In addition, the prosecutor's obligation is not merely
statutory, but is a constitutional duty under the due process
clause to produce evidence favorable to the accused, which tends
to exculpate him or which tends to indicate bias, interest or
inconsistent statements on the part of a witness. Brady v.
Maryland, 373 U.S. 83 (1963); United States V. Agurs, 427 U.S. 97
(1976)t Giglio V. United States, 405 U.S, 150, 154 (1972); United
States V. Baqley, 473 U.S. 667 (1985). Notwithstanding its
statutory and constitutional obligation, the State in the instant
case failea to disclose to the defense this prior sworn statement
of its star witness, Bobby Davis. On that ground, Appellant is
entitled to a new trial. Miller V. Wainwright, - F SUPP. -
(Mem.Op. Case No. 83-849-Civ-T-13)(M.D,Fla. Nov. 13, 1987).
In Miller, the State withheld impeachment and exculpatory
material from the defense. The evidence withheld in Miller was
two police reports; one suggested that the crime was committed at
a time other than that sworn to by the eyewitnesses and the other
repeated a statement by the main eyewitness that she said she
-15-
possibly dreamt the crime. This latter statement was similar to
another statement by the same witness that the defense did have
available to it at trial. Nevertheless, the federal district
court held8
When guilt or innocence may turn on the reliability
of a witness, the state has a duty under Brad to
disclose evidence affecting the credibility-$the
witness. Moore V. Kemp, 809 F.2d 702 (11th Cir. 1987).
The State's case rested almost entirely on the
credibility of the eyewitnesses. The physical evidence
linking Miller and Jent to the crime was negligible.
The Court find6 that the very real threat to the
credibility of one or more of the state's witnesses in
this case is sufficient to undermine the Court's
confidence in the outcome of petitioners' trials.
Moreover, whether the State could attempt to
rehabilitate [the eyewitness'] testimony, information
that one of the State's key witnesses may have dreamed
her testimony is of such an impeaching character that
it requires disclosure under Brady. What weight to
give [the eyewitness'] prior pre-custody statement is a
question for a jury and not this Court.
Mem.Op. at 15.
Similarly, disclosure of the affidavit in this case was
essential and the State's failure to disclose it deprived
Appellant of a fair trial. The testimony of Bobby Davis was the
critical evidence against Appellant, without which Appellant
could not have been convicted in this case. No evidence of a
body was introduced, no gun was introduced, no confession of
Appellant was introduced3 no evidence that Appellant shot James
Savoy was ever introduced against Appellant other than Bobby
Davis' testimony. In view of the critical nature of Davis'
testimony, the prejudice to Appellant by the State's failure to
turn over the affidavit in question is extreme. That affidavit,
when examined in the context of Davis' trial testimony and his
other pre-trial statements, sworn and unsworn, reflects directly
-16-
on Davis' truthfulness and reliability.
As the United States Supreme Court has said,
The jury's estimate of the truthfulness and
reliability of a given witness may well be
determinative of guilt or innocence, and it is upon
such subtle factors as the possible interest of the
witness in testifying falsely that a defendant's life
or liberty may depend.
Napue V. Illinois, 360 U.S. 264, 269 (1959). As that Court noted
in United States v. Bagley, 473 U.S. 667, 676 (1985), impeachment
evidence, such as this affidavit, is indeed evidence favorable to
an accused under Brady ". . . so that, if disclosed and used
effectively, it may make the difference between conviction and
acquittal." Therefore, the Court held in Bagley that where there
is a "reasonable probability" - one that undermines confidence in
the outcome - that if the evidence had been disclosed, the result
of the proceeding would have been different, the failure to
disclose is reversible error.
That reasonable probability is present in this case, as to a
number of issues raised in the affidavit, just as it was found to
be present in Miller.
First, in the affidavit, Davis swore that when he heard from
Bobby Stephens that Savoy was found at the Cricket Club, that he
called Errico and Menillo then. The three of them went to the
club that same night and planned and executed the kidnapping of
Savoy that same night. According to this affidavit and other of
Davis' early statements, the kidnapping of Savoy was accomplished
without any involvement by Appellant.
This, of course, directly contradicted Davis' trial
testimony on a most critical issue: Appellant was, of course,
-17-
. I 8 ,
sentenced to life imprisonment for this kidnapping of Savoy.
Certainly, a sworn inconsistent statement by the Stateus star
witness that established that Appellant was not involved in that
kidnapping would obviously be evidence helpful to the defense.
Second, in his affidavit, Davis swore that Appellant told
him that Savoy stole about $500,000. The amount of money that
Davis said Appellant told him was in the safe Savoy stole became
a critical issue of Davis' credibility. At trial, Davis insisted
that he had always maintained that the safe contained just over
$400,000 (R.949, 1054, 1063, 1069).
There was some contradicted temtimony that Davis previously
told Bobby Stephens and an FBI agent that there was $600,000 in
the safe (R.1657-1658, 1876, 1893, 1916-1917, 2150). However,
that testimony could not be nearly as effective in challenging
Davis' credibility as his own sworn inconsistent statement would
have been if it had been turned over to the defense as mandated
by law. The affidavit would have enhanced the effective cross
examination of Davis on yet a third point. In the affidavit
Davis swore that he, Stephens, Menillo annd Appellant took Savoy
out on the boat. While this was technically consistent with his
trial testimony, it was directly inconsistent with his sworn
testimony before a federal grand jury and with statements he made
on two other occasions as to who was on the boat (R. 1083, 1086-
1087). See Miller, Mem.Op. at 14-15. The affidavit would have
been additional evidence that Bobby Davis would swear to anything
that it was expedient for him to swear to on any given day.
Certainly, this affidavit establishing perjurious statements
-18-
by Davis would have enabled t h e defense to conduct a far more
e f f e c t i v e cross examination of Davis.*2 Without D a V i 8 ' p r i o r
sworn statement, the defense was unable to f u l l y and e f f e c t i v e l y
e s t a b l i s h Davis' motives to l i e and h i s complete lack of
c r e d i b i l i t y . Of course, the defense did argue t h i s point most
ardently and s k i l l f u l l y ; had the defenre had the benefit of t h i s
a f f i d a v i t to prove t h a t Davis committed perjury, t h e jury would
l i k e l y have reached a d i f f e r e n t conclusion.
In Arango V. S t a t e , 497 S0.2d 1161 (Fla.1986), t h i s Court
reversed t h e finding of the t r i a l court and ordered a new t r i a l
because of a similar due process, Brad2 v i o l a t i o n , In Arango, a
pistol was found which supported Arango's claimed defense, but
t h e defense was never advised of its existence. The prosecutor
then vouched for t h e q u a l i t y of h i s evidence and demeaned the
defense i n h i s closing. This Court held t h a t t h e suppressed
evidence was material and t h a t there was LL reasonable p r o b a b i l i t y
t h a t had t h e evidence been disclosed to the defense t h e rerult of
the t r i a l would have been d i f f e r e n t .
Here, too, t h e suppressed evidence war material and, as
shown above, there is a reasonable p r o b a b i l i t y t h a t had the
evidence been disclosed as the law required, t h e result would
have been d i f f e r e n t . Certainly, there is no l e g a l d i s t i n c t i o n i n
2/ Several other statements i n t h e a f f i d a v i t were also
i n c o n s i s t e n t , d i r e c t l y or by implication, w i t h Davis' t r i a l
testimony and would have enabled t h e defense to e f f e c t i v e l y cross
examine Davis i f the a f f i d a v i t had been turned over to them as
required by law. See, e,g. R.3325, paragraph 11 compared to
2046-2047 (re Savoy's attempted escape), and 3325, paragraph 16
compared to 956, 1088 (re Davis' a b i l i t y to pinpoint t h e
location/distance of the boat). See, also, R.3303-3308.
-19-
this regard between physical evidence such as the gun in Arango
and the impeaching affidavit in this case. See, Boshears V.
State, 511 So.2d 721 (Fla.App. l8t DCA 1987); Cipollina V. State,
501 S0.2d 2 ( Fla . App. 2d DCA 1986) ; Giqlio V. United States,
supra, 405 U.S. 150.
As the United State8 Supreme Court noted in Giglio, where,
as here, the reliability of a particular witness may be
determinative of guilt or innocence, the Brady rule applies to
the nondiscloeure of impeaching evidence, to insure a fair trial
through full and effective cross-examination. The sixth
amendment right to confront witnesses contemplates not just
cross-examination, but effective cross-examination where the
parties have all discoverable statements of the witness available
for use in impeaching the witness'credibility. Davis v. Alaska,
415 U.S. 308, 318 (1974).
In the instant case, Raymond Thompson was deprived of a fair
trial. He was denied the opportunity for full, effective cross
examination of the State's critical witness against him by reason
of the State's refusal to obey the discovery requirements of
Florida law and the constitutional requirement of due process.
The failure to turn over the October, 1985, affidavit of Bobby
Davis, which was material and substantially impeached Davis'
credibility, undermines any confidence in the outcome of
Appellant's trial. Therefore, Appellant is entitled to a new
trial.
-20-
POINT I1
THE TRIAL COURT ERRED IN PERMITTING
THE STATE'S WITNESSES TO TESTIFY TO
BAD ACTS OF THE DEFENDANT WHICH MERELY
WENT TO HIS PROPENSITY TO COMMIT A CRIME
It is, of course, improper for a jury to base a guilty
verdict on the conclusion that the defendant probably committed
the crime charged because the evidence showed him to be of bad
character or with a propensity toward crime. Straight V. State,
397 So.2d 903, 908 (Fla.1981); Johnson V. State, 432 So.2d 583
(Fla.App. 4th DCA 1983); Weitz V. State, 510 S0.2d 1060 (Fla.App.
4th DCA 1987). For that reason, evidence of bad acts or criminal
activity which are not charged is inadmissible when its purpose
is to show bad character. Florida Statutes, Section 90.404(2)(a).
In this case, the trial court erroneously permitted several
witnesses to testify to other crimes and bad acts by Appellant.
A. Testimony of Threats to Savoy and His Family.
Among the uncharged bad acts testified to were that threats
were made to various members of the Savoy family, impliedly by
Appellant or at Appellant's behest. See R.914-915, 925, 1230-
1232, 1473, 1476, 1488, 149201494, 1513-1514, 1519. As is
-
obvious from the record, this was not a single, isolated
reference, but a continuing course of testimony, all received
over Appellant's objection. The overwhelmingly prejudicial
nature of this testimony is apparent, yet it served no probative
purpose which outweighed its prejudicial nature.
B. Testimony About Witness Protection Programs.
Nor was the testimony of threats the only bad act testimony
improperly admitted. The trial court also permitted various
-2 1-
witnesses to testify to the fact that Savoy sought to enter the
witness protection program or that the witness himself entered
that protection and relocation program (R.828, 831-833, 990,
1182, 1716). This testimony served no legitimate or probative
purpose other than to improperly suggest to the jurors that
Appellant must be a very frighteningly dangerous man and,
therefore, they should believe that he committed this crime. The
trial court erred in allowing thi8 evidence in over Appellant's
objection.
C. Testimny Regarding Huge Sum8 of Honey.
The State a180 was permitted to introduce, over Appellant's
objection, testimony from several witnesses that they saw
Appellant with huge sums of money (R.891, 168801689, 1703-1706,
1954, 2033). The State argued that it was necessary to introduce
this testimony to show that at the time of the crime Appellant
woulU likely have had $600,000 in a safe for Savoy to steal.
However, that was a fact that was never in issue, tangential to
the real issues in the case, and, obviously, highly prejudicial.
The inescapable conclusion for the jury to reach from this
testimony was that Appellant must be engaged in some illegal
business to generate that kind of money and, therefore, probably
committed this crime as well. Further, this testimony should
have been excluded because there was no attempt by the witnesses
to restrict their testimony to the time when the theft took
place, in or about August, 1981. Rather, over objection,
witnesses were allowed to testify to seeing Appellant with lots
of cash as early as 1978 and as late as 1982. Clearly, this
-22-
. ' , I
testimony was not probative of whether Appellant had cash in
19811 rather, it was highly prejudicial and should have been
excluded .
Even if the testimony concerning how much cash Appellant had
was arguably admissible, the other testimony regarding huge
amounts of money should have been excluded. Over Appellant's
objection, Bobby Davis was allowed to testify that the first
payment he received from Appellant as an employee was $15,000
(R.887) and that Appellant always paid cash for everything, owned
several houses and "all the boats that we used" (R.896). In
addition, Bobby Dania (Tippie) testified that he made several
hundred thousand dollars working for Appellant (R.1718). This
testimony had the unquestionable impact of convincing the jury
that Appellant had committed other crimes and bad acts besides
the crimes charged. This testimony was an open invitation to the
jury to convict Appellant for this crime because he was a
terrible person engaged in lots of other criminal acts.
D. Testimony Concerning Alcohol and Drug Abuse.
The effect of this testimony was further exacerbated by all
the witnesses' testimony concerning alcohol and drug abuse when
they worked for or partied with Appellant, and the guns and other
weapons they kept. -See, R.1101, 1106, 1152, 1197, 1200, 1206-
1207, 1718, 1719, 1955-1958. This testimony, especially when
taken with the testimony of cash and boats indicated to the jury
that Appellant was a big time drug smuggler and impermissibly
allowed the jury to conclude that Appellant probably committed
this crime because that's what drug smugglers do.
-23-
E. Testimony About Other Homicides:
Thir was not the only evidence of uncharged crimes that was
improperly admitted, however. Prior to trial, the state sought
permission to use evidence of two other homicides it alleged
Appellant committed as williaras rule proof. After extensive
argument, the trial court ruled that no such evidence could be
introduced. Each of the cooperating, co-defendant witnesses was
permitted to say, however, that his plea bargain was contingent
on his teetifying truthfully in this case and in other caseec,
without mentioning those caues in detail for Appellant's
involvement in them. While such testimony might be ruled
innocuous, on its own, it becomes more prejudicial in light of
the other evidence of bad acts improperly admitted. Further, the
vague description of "other cases" was improperly detailed by
several witnesraes.
FBI Agent Parrish, who first met Bobby Davis and listened to
hi6 #tory, testified that he told Davis that the FBI doesn't
investigate murders, in the plural (R.1640). In addition, Robert
Tippie (Babby Dania) testified that his plea bargain was based on
hi8 testifying truthfully in this case and in two other homicides
(R.1697) . Further, in the tape of the conversation between
Appellant and Bobby Davis played for the jury, Davis said to
Appellant that police had come to Davis' home asking about the
murders, again the plural (R.2018). The trial court denied
Appellant's notions for mistrial based on this evidence.
However, the court's denial of the mistrial is inexplicable
in view of the fact that it wa8 identical testimony by Agent
-24-
Shomers - testimony concerning homicides, in the plural - that
the court found warranted a mistrial at the first trial. See,
R.752.
-
* * *
When looked at individually and in its totality, the
conclusion is unavoidable that all of this improperly admitted
evidence of uncharged crimes may have predisposed the jury to
find Appellant guilty of the crime charged. The evidence of bad
acts in this case is pervasive, rooted in the prosecution's
admitted belief that it would have been perfectly proper to prove
an entire drug smuggling operation in this case. See, eg,
R.1706.
The State's wishing it so, however, can not make it SO.
This is not a case like Sims V. State, 444 So.28 922 (Fla.),
cert.denied, 104 S.Ct. 3525 (1983), where a vague and isolated
reference by a witness to the defendant's 'mug shot' was held to
be harmless. By contrast, the evidence of bad acts and uncharged
crimes admitted in this case may surely have convinced this jury
that Appellant was very likely guilty of serious, sub8tantia1,
other crimes and, therefore, very likely guilty of this crime as
well. A conviction thus obtained violates Appellant's right to a
fair trial and due process of law, and should be reversed.
-25-
POINT I11
THE TRIAL COURT ERRED IN DENYING
APPELLANT'S MOTION TO DISMISS ON
DOUBLE JEOPARDY GROUNDS ~
The double jeopardy clauses of the United States and Florida
Constitutions protect a defendant's valuable right to have his
trial completed by a particular tribunal. Wade v. Hunter, 336
U.S. 684, 689 (1949). It is for that reason that the double
jeopardy clause bars a retrial when the government intentionally
provokes a request for a mistrial so as to afford the prosecution
a more favorable opportunity to convict the defendant. United
States V. DfFrancesco, 449 U . S . 117 (1980); Divans V. California,
434 U.S. 1303 (1977).
In the present case, at the first trial the State's first
witness was Special Agent David Shomers of the Florida Department
of Law Enforcement, the lead case agent in this case. Although
Shoiaers was instructed to refer only to the Savoy murder case,
and not to any other murders, Shomers disregarded that
instruction and mentioned "homicides" in plural. That deliberate
testimony forced Appellant to move for a mistrial, which was
granted (R.751-752, 3117-3121).
The circumstances surrounding this testimony and mistrial
establish that this was an intentional act by the State in order
to improperly gain an advantage against Appellant once his
defense was made manifest. Shomers is, of course, an experienced
law enforcement officer knowledgeable about this case. Simply
put, Shomers knew better than to have made this kind of "mistake"
unintentionally. In addition, the State made no secret of the
-26-
. I * I
fact that they were using the respite they gained by the
declaration of the mistrial to prepare the case so as to better
meet Appellant's defense (R.753-761, 3121).
Since the state's action intentionally provoked the mistrial
in order to obtain a more favorable opportunity to convict
Appellant, the double jeopardy clauses of the federal and etate
conrtitutions barred retrial of Appellant. Divan8 v. California,
supra . Therefore, the trial court erred in failing to grant
Appellant's notion to di8mi88.
-27-
POINT IV
THE TRIAL COURT WAS WITHOUT
JURISDICTION OVER A HOMICIDE
COMMXTTED ON THE HIGH SEAS
All the evidence at trial showed that this crime was
committed not in Broward County, but on the high seas outside of
Florida's territorial jurisdiction. Therefore, under 18 U.S.C.
Section 7, the federal government had exclusive jurisdiction to
try Appellant for this crime.
Even if Florida had concurrent jurisdiction over this
offense under Section 910.005(2), Florida Statutes (1977), this
court made it clear in Keen V. State, 504 So.2d 396, 399 (Fla.
1987), that the court must properly instruct the jury that it
must find that an essential element of the crime occurred within
Florida in order to sustain a conviction in a case of a homicide
on the high seas.
There is no such clear finding in the instant case. Instead
of the explicit instruction approved in Keen, the trial - court in
this case merely instructed the jury that the State need only
prove, to a reasonable certainty, that the crime was committed in
Broward County, Florida (R. 3150). This instruction was clearly
insufficient under -Keen. It reduced the State's burden
considerably by relieving the State of its obligation to prove
every essential element of the crime beyond a reasonable doubt,
including that some essential element of the crime occurred in
Broward County.
Since this erroneous instruction went to the most
fundamental issues of the court's jurisdiction and the burden of
proof in a criminal case, the error can not be waived or
harmless . -28-
POINT V
THE TRIAL COURT ERRED IN
OVERRIDING THE JURY'S RECOMMENDATION
OF LIFE SENTENCE AND IMPOSING
THE DEATH PENALTY
In Tedder v. State, 322 So.2d 908, 910 (Fla.1975), this
Court set down the standard for reviewing sentences in capital
cases in language that is very apt in this case:
A jury recommendation under our trifurcated death
penalty statute should be given great weight. In order
to sustain a sentence of death following a jury
recommendation of life, the facts suggesting a sentence
of death should be so clear and convincing that
virtually no reasonable person could differ. That is
not the situation here.
On the facts of this case it was improper for the trial
court to override the jury's recommendation of a life sentence.
Where, as here, there is a reasonable basis in the record to
support a jury's recommendation of life, an override is improper.
Any valid, mitigating factors which can be discerned from the
record that may have been the basis for the jury's recommendation
are sufficient. Where the jury could reasonably base its
recommendation on these factors, an override is error. Ferry v.
State, 507 So.2d 1373, 1376 (Fla.1987): Fead v. State, 512 So.2d
176, 178 (Fla.1987).
There was a full sentencing hearing in this case. The
prosecutor was permitted to introduce, over Appellant's
objection, the certified copy of a judgment convicting Appellant
of rape in 1950, 36 years before the sentencing hearing (R.2688,
2699) . The prosecutor introduced no other evidence of
aggravating circumstances.
-29-
$ 1 . A
A. The Evidence in Mitigation
The defense presented a number of witnesses in mitigation.
Dr. Arthur Stillman, a psychiatrist, testified that he examined
Appellant and found him to be suffering organic brain damage as a
result of Appellant's extensive use of cocaine, alcohol and other
drugs over the previous 5 to 10 years (R.2708, 2713). Dr.
Stillman found that Appellant had memory loss; weak
concentration; minimal frustration tolerance; limited, juvenile
insight and judgment; and could not reason abstractly (R.2709-
2712). In all, Dr. Stillman concluded, Appellant's capacity to
appreciate the criminality of his conduct at the time of the
crime was substantially impaired. Appellant suffered from
paranoidal grandiosity, extreme stress which led to two serious
heart reactions, and, in March, 1982, was living and acting under
severe mental and emotional disturbance (R.2715-2716, 2719).
The evidence of Dr. Stillman alone was sufficient to
reasonably be believed by the jury and to be the basis for the
jury's recommendation of life. However, there was even more
evidence presented in mitigation on which the jury could have,
and did, reasonably rely in recommending a life sentence.
Appellant's aged mother and father testified to how
Appellant went to work as a youngster to help support them and
their younger children during the Depression (R.2781, 2797).
They both also told the jury about their grandson, Charlie Boy's,
death, and how it devastated Appellant, causing him to leave his
life in Florida and move to his parents in Illinois for comfort
(R.2782, 2798).
-30-
In addition, two of Appellant's sisters testified that
Charlie Boy was Appellant's life and that he was devastated by
the child's death. They both were aware that Appellannt had a
drinking and drug problem; they discovered it in 1981 and it was
exacerbated by Charlie's death (R.2826-2827, 2840-2842). Both
sisters fear for their parents and for Appellant's stepson, Joey,
if Appellant were executed (R.2827-2828, 2840-2841).
Ray Thompson's stepson, Joseph Faliodice, also testified.
He was 16 years old at the time and said that Ray raised him the
past 14 years and was the only dad he ever knew. Joey was home
with Ray when they heard that someone was hit by a car down the
street. Together, they went to see the accident and found
Charlie, dead. Joey said that his dad got hysterical and was
never the same again (R. 2812-2815, 2818).
Joey, who now lives with Appellant's brother, was vaguely
aware that his dad had a cocaine habit before Charlie died,
though Appellant tried to hide it from Joey. However, after
Charlie died, Joey was sure that Ray had an acute drug problem
(R.2817-2818, 2819) .
On this record, then, both statutory and non-statutory
mitigating factors are present. Under Florida Statute Section
921.141 the evidence in the guilt and penalty phases showed that:
First, the victim, James Savoy, was a participant in the
Appellant's conduct in that his theft of Appellant's $600,000 set
all the events in motion. Savoy was not an innocent victim, as
were the victims so thoroughly brutalized in Wasko V. State, 505
So.2d 1314 (Fla.1987); Hansbrough v. State, 509 So.2d 1081
-3 1-
(Fla.1987); Amazon V. State, 487 So.2d 8 (Fla.1986)), and other
cases. Yet in each of those cases, this Court reversed the trial
judge's override of the jury's recommendation of life, and should
do so in this case.
Second, Appellant was under the influence of extreme mental
or emotional disturbance, was acting under duress, and, his
ability to appreciate the criminality of his conduct was
substantially impaired, all due to his drug and medical history,
according to Dr. Stillman. As this Court noted in Fead V. State,
512 So.2d 176, 178 (Fla.1987):
This Court frequently has reversed jury overrides
where the jury could have found alcohol or drug abuse
as a mitigating circumstance. Huddleston V. State, 475
So.2d 204, 206 (Fla.1985); Cannady V. State, 427 So.2d
723, 731 (Fla.1983); Phippen V. State, 389 So.2d 991,
14(Fla.1977). In Amazon V. State, 487 So.2d 8 (Fla.),
288 (1986), for instance, we held improper an override
993 (Fla.1980); Buckrem V. State, 355 S0.2d 111, 113-
cert.denied, U . S . - 107 Sect. 314, 93 L.Ed.2d
where, among other mitigating factors, there was 'some
inconclusive evidence that [appellant] had taken drugs
the night of the murders' along with 'stonger' evidence
of a drug abuse problem.
Here, too, there was just that kind of evidence that
Appellant had a serious drug problem at the time of the crime.
Appellant told Dr. Stillman that he was using the enormous amount
of at least one ounce of cocaine every two weeks, together with
marijuana, quaaludes and ten to twenty drinks of alcohol every
day (R.2708-2709). And at the guilt phase, both Bobby Stephens
and Bobby Davis testified to their own and to Appellant's drug
and alcohol abuse.
Thus, the jury could have reasonably concluded that
Appellant acted under duress, extreme emotional or mental
-32-
. ' I ,
disturbance, or was substantially impaired in his ability to
recognize the criminality of his conduct and the trial judge's
override of their recommendation was improper.
A third statutory mitigating factor present on this record
was Appellant's age at the time of the crime. While the judge
refused to consider this as a statutory factor, believing that
the statute was meant to apply only to juveniles or the very
elderly, the judge did allow this to be argued to the jury. See,
Huddleston V. State, 475 So.2d 204, 206 (Fla.1985). Therefore,
whether it is a statutory or non-statutory mitigating factor,
this jury could have weighed the evidence and reasonably
concluded that Appellant's age of fifty-two was a mitigating
circumstance. This is especially true in this case in light of
Dr. Stillman's evidence that due to his prior drug abuse and his
heart condition Appellant's life span has been drastically
shortened and he can be expected to live only nine or ten more
years (R.2720) .
Other, non-statutory mitigating factors established in the
record were Appellant's loving and loved status in his family.
As a child growing up in the Depression Appellant did without
education to help feed his parents and brothers. As an adult he
helped to care for his younger siblings and aging parents. Most
of all, Appellant was a devoted loving parent to his son and
stepson and suffered the incomparable tragedy of losing his young
son. These are certainly mitigating factors that the jury was
entitled to consider. This jury weighed this evidence, together
with all the other evidence, and it could have reasonably been
-33-
I ' , I
the basis for its recommendation of life. See, Thompson V.
State, 456 So.2d 444 (Fla.1984); Fead V. State, 512 So.2d 176,
179 (Fla.1987). That being the case, the trial judge's override
was improper.
Another non-statutory mitigating factor in the record is the
disparity of the death penalty to the sentences received by the
co-defendants in this case. Bobby Davis received a ten year
sentence for murder, Bobby Stephens received a fifteen year
sentence for murder and Bobby Sheer and Bobby Tippie both
received full immunity. It is, of course, proper for the jury to
consider the substantial inequality in the sentences received by
the co-defendants, compared to Appellant facing the death
penalty. Thus, sentencing inequality is a legitimate basis for a
jury to consider. Since this jury undoubtedly considered that in
coming to its recommendation of life, that recommendation should
not have been overridden. Thompson V. State, 456 So.2d 444
(Fla.1984); Brookinqs V. State, 495 So.2d 135, 143 (Fla.1986).
Closely related to this factor of sentencing inequality, is
the issue of the respective roles of the co-defendants in a
homicide. The only testimony that Appellant was the shooter in
this case came from Bobby Davis; Bobby Stephens, on the other
hand, swore that he only saw the gun in Bobby Davis' hands
immediately before and immediately after the shooting, and could
not say who shot Savoy.
Certainly, it is perfectly appropriate for a jury to
question the relative roles of the co-defendants. It is
reasonable to conclude that this jury arrived at the
-34-
recornmendation of life in part based on the conflicting,
inconclusive evidence of who the shooter was. See, Malloy v.
State, 382 So.2d 1190 (Fla.1979); Wasko V. State, 505 So.2d 1314,
1318 (Fla.1987) .
On this record, then there was more than ample evidence of
statutory and non-statutory mitigatinng factors on which the jury
reasonably based its decision to recommend a life sentence. The
trial judge should not have overridden that recommendation.
B. The Aggravatinq Circumstances
The judge's sentencing order in support of his override
relied on five aggravating factors. First, the trial judge
relied on Appellant's 1950 Illinois conviction for rape, for
which Appellant received a three year prison term (R.3340). This
so-called aggravating factor, a man's conduct 36 years earlier,
ought not serve as a basis for his execution when he is well over
50 years old. That conviction is too remote, as a matter of law
and propriety, to justify the electrocution of Appellant.
The second, fourth and fifth aggravating factors outlined by
the trial judge are duplicative in that the judge's conclusions
rest on the same facts. Those factors asserted by the trial
judge were that the crime was committed while Appellant was
engaged in the commission of a kidnapping, the crime was
especially heinous, atrocious or cruel, and that the crime was
committed in a cold, calculated and premeditated manner without
any pretense of moral or legal justification (R.3341-3343). The
facts relied on by the trial judge for finding each of these
factors were that Savoy knew he was in trouble as soon as he
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stole Appellant's money and so feared for his life from the time
of his theft, that Appellant let the word out on the street that
he was looking for Savoy, that Appellant kidnapped Savoy and held
him overnight, that Appellant told Savoy he would be killed while
questioning him, and, that Appellant shot Savoy in the head and
Davis threw him overboard.*3 Of course, a trial judge may not
use the same essential facts to support more than one aggravating
circumstance. Riley V. State, 366 So.2d 19, 21 (Fla.1978); see
also, Thomas V. State, 456 So.2d 454, 459 (Fla.1984).
The third aggravating factor asserted by the trial judge was
that the crime was committed for pecuniary gain. This
aggravating factor is simply not supported by the record.
Aggravating circumstances must, of course, be proven beyond a
reasonable doubt. Williams V. State, 386 So.2d 538 (Fla.1980);
Parker V. State, 458 So.2d 750 (Fla.1984). In this case all the
witnesses swore that Appellant wanted revenge; Bobby Tippie
testified, in exchange for full immunity, that Appellant said, "I
don't give a shit about the money. I just want the son of a
bitch dead", when Tippie asked Appellant if he thought he'd get
his stolen money back (R.1691).
The evidence in the guilt and sentencing phases simply did
not establish that the crime was committed for pecuniary gain.
In Phippen v. State, 389 So.2d 991 (Fla. 1980), this Court
3/ We cannot know from the general verdict if the jury found
all the same facts to be true. The jury may have convicted
Appellant on the felony murder theory as an a
