Fla. Stat, (1981) - Florida State University College of Law

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of any felony in which the defendant might have been participating, did W e this argurrent in the penalty phase. (T, 2475-2476) ~ Counsel Cefense counsel sul=anitted a numhr of independent act instructions (R. 361, T. 2090; R. 362, T. 2090; R. 363, T. 2091), including the s m that counsel suldtted in Bryant, supra. (R. 362). The court perfunctorily denied each instruction, and, in ef€ect, left counsel in the posture of having a defense that was unsup~3orted by any jury instruction. a defense that was not supported by the standard instruction, munsel argued that the def adant was guilty of third degree felony d er one in Count I, (T. 2241-2242), since the defendant had clearly agreed to participate in the false irprisomt of Padgett that occurred when he was taken into the woods rather than haw. The indepdent act instruction muld have providd the basis for a defense argument for acquittal as to Count I. the jury f m Rather than argue Likewise, an independent act instruction might well have prevented convicting the defendant in Count 111. not accept the state's thaq that the defendant aided in the prerrvtaitated murder of Jody Dalton. The jury obviously did There was 110 instruction on first degree felony rrnurder as to Count I11 (R. 388), but the jury was instructed on third degree felony murder as to Count 111. (R. 392) . There was evidence that Dalton did not kncrw anything abut Richard Padgett's murder. (T. 1880). Long's house, and &cover was aware that Long's mther did not want her carting around. (T. 1341-1343). dislike for Dalton (T. 1861). made, and, in fact, was mde, that the murder of Jody Daltm was exclusively due to personal motives on the part of Gmover. (T. 2204-2205). act instruction could well have provided the jury with a basis for acguittal as to Count 111, as well. However, she had been visiting Gmover at Billy There was evidence that Graver felt a personal F m this evidence the argurrrt3nt could have been An indepzndmt There was evidence to support the independent act theory 05 defense, Page -30-
ut munsel could not argue it because it was not supported by an instruction to the jury. However, when there is any evidence introduced at trial which supports the theory of the defense, a defendant is entitled to have the jury instructed on the law applicable to his thmry of defense when he so reguests .bbtley v. State, 155 Fla. 545, 20 So. 2d 798 (1945); Bryant, supra. The sulxnitted instructions were legally correct and supported by the evidence. denied the jury a legal basis for accepting the defense and had the effect of preventing counsel from arguing it, except in mitigation. trial as to Counts 1 and 111. i%RGmmT I1 Denial of the iulstructions TI3E TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT DUWSS IS NOT A DEFENSE TO HOMICIDE, WITHOUT REGARD To WHE;THER THE accoSED WFS AN AIDER AND ABmR aS OPPEED To A PRINCIPAL, AND WITHOUT RM*IARD TO Mm THE HWCIm W?S A PRENEDITATED OR A FELD?SN MURDER, IN VIOLATION OF THF, MQIT OF AN ACCUSED TQ HAVE THE JURY IN ACCORD WITH HIS DEFENSE, AND HIS RIGHT TO THE EFFECTIVE ASSISTANa OF COUNSEL, aS BY THE FIFI'H, SIXTH, AND FWKEENH TO THE U.S. CONSTITU'ITON AND AFKtTCLE I, SECTIONS 9 AND 16 OF THE WKDA CONSTITUTION. 'Ihe r&y is a new ming the trial, the defendant testified that he becm afraid of 9brtm-y when mver nudered Richard Padgett. (T. 1846, 1851, 1861, 1863, 1872 , 1878-1879, 1880-1881, 1924, 1945, 1979); that Gmover threatened he, his wife, and his familywith violent retribution CT. 1847-1848, 1849, 1865, 1942); that Grmver had another gun in addition to the first one the defmdant mlted d m CT. 1850, 1861, 1934, 1951-1952); and that the defendant did not have a weapon (T. 1863). hhm Billy Long got into Elaine Parker's car, the defendant believed Long knew of Groover's plan, and he had seen Lmg with a gun in the past (T. 1868). long was seated behind him and next to Elaine (T- 1870); and he was frightened of bng and Grmver acting in concert. (T. 1880-1881, 1962). 01 cross-examination by the prosecutor, he stated that he was co-erced into doing everythbg he did. (T. 1979). 'Ihe state's theory of prosecution as to Count 11, the murder of Nancy Page -31-
Page 1 and 2: RPPEAL FffQM THE CIRCUIT COURIT OF
Page 3 and 4: V TRIAL COuIiT EXRED IN FAILING TO
Page 5 and 6: UNRELATED O??F'ENSE AS EVIDENCE OF
Page 7 and 8: ACEEY. mm, 33tlTo~7"T% (Fla. 4th ;D
Page 9 and 10: c?JME3IEV. smm 345 So. 2 d m CURRYV
Page 11 and 12: i%W'HW v. STATE j// So'.' 2d 7807Fl
Page 13 and 14: MCMILLANV. smm 4119 So. 2d 1-la. 3r
Page 15 and 16: 0 PRamCE v. STATE 337 So, 2d 7 n l
Page 17 and 18: mmv, STATE 2d =la. 1st D.C.A, 1982)
Page 19 and 20: 0 INTRODUCTION The appellant, Fbber
Page 21 and 22: of Other Crbs, Wrongs, or Acts. (R.
Page 23 and 24: 0 (T. 1128-1129).crooVer said nothi
Page 25 and 26: 0 going to kill "the mther fucker",
Page 27 and 28: this would alleviate any problem be
Page 29 and 30: took out his knife and stabbed Padg
Page 31 and 32: (T, 1342-1343). mng's rmther disapp
Page 33 and 34: he said it, "nobdy paid any mbd to
Page 35 and 36: told the defendant to "back off". (
Page 37 and 38: and said, Yh ny God". (T. 1260). tw
Page 39 and 40: out of the cay. and walked around b
Page 41 and 42: WHEXFER THE THE JUHI UPON THE LAW Q
Page 43 and 44: IX X WHlTIWB THE TRIAL ERRED IN m I
Page 45 and 46: XVIII WHEXfER THE TRUG COUW: FBRED
Page 47: they were afraid of being killed by
Page 51 and 52: to the co-defendant, who continued
Page 53 and 54: participate in the killing, 2. If t
Page 55 and 56: Brother Caps. (T. 1185) (4). the de
Page 57 and 58: So. 2d 583 (Fla. 4th D.C.A. 1983).
Page 59 and 60: EXPW AND JTETIFY PLEA BARWWNG WITH
Page 61 and 62: type of rebuke counsel received. on
Page 63 and 64: utilized the stature of his office
Page 65 and 66: likewise improper for the State Att
Page 67 and 68: Payment of mney to a witness for an
Page 69 and 70: the prosecutor informed a juror onc
Page 71 and 72: the fiream or threatened Padgett wi
Page 73 and 74: from the operation of discowry rule
Page 75 and 76: I resides. Stanley, supra; - Florid
Page 77 and 78: Pernutting the reputation testby. o
Page 79 and 80: little probative value w kn it is c
Page 81 and 82: - The fact that a defendant refused
Page 83 and 84: The United States Supre court has s
Page 85 and 86: 'BE general rule is that statements
Page 87 and 88: The general rule is that a witness'
Page 89 and 90: any person the defense "expects to
Page 91 and 92: CR, 6167 T, 58-7 Penalty (R. 16-31
Page 93 and 94: Sheppard's necklace and ring me tak
Page 95 and 96: (-TT* 1032, 10491. An execution-sty
Page 97 and 98: (5) W ilm Urgmn, the defendant's si
Page 99 and 100:
The defense also argued for mitigat
Page 101 and 102:
mitigating circumstance in a capita
Page 103:
CFRI'IFICATE OF SERVTCE I HEREBY CE
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Fla. Stat, (1981) - Florida State University College of Law

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