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

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c of the murder of Jady Dalton (Count IIT) was contrqdicted by Joan l%mett, It is clear that the jury predicated the defendant's li&il?ty in Count 111 on a felonycmurder theory, since that is the only way third degreeqder can occur. (R" 3921, It is equally clear that frmn their verdict, the jury did rot believe Bennettrs testhny that the defendant and Gmover plotted, planned, and intended hlton's death. It cannot be said that the jury believed Ions as to Count 11, or disbel2eved the defendant as to Cbunt I, when one considers that the prosecution argued that the defendant was guilty of first d-ee murder on both counts even if the defendant's version of the hnicides was believed. (T. 2147- 2149, 2264). Defense counsel expressed this vim of their verdicts in his penalty phase smtion. (T. 2464-2465). Aggravating Ciramstances: During the advisory sentence proceeding, the prosecution argued the follwing aggravating circumstances as to Count 11: (1) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person. 5 921.141 (5) (b), Fla. Stat, (1981). The state argued the first degree murder of Padgett, third dqree murder of Dalton, and prior aggravated battery conviction as applicable. (T. 2423-2425). !this aggravating cirmtance was found by the trial court. (R. 497-498) (2) W defendant knmingly created a great risk of death to m y persons. # 921.141 (5) (c) Fla. Stat. (1981). The state argued that this circmstance applied. (T. 2425-2426). The trial court did not find this circmnstance present, apparmtly due to imprecise statutory language, (R, 498). (3) ?he capital felony was cdtted while the defendant was engaged in the comnissian of a mbery. 921.141 (5) Cd.), Fla, Stat. (1981). Tne state argued the existence of this circumstance because Page -74-
Sheppard's necklace and ring me taken aEtr;r she was killed, but admitted that the primary mtive was to cover up Padgett's murder. (T, 2428-24291. The t&al court found this circumstance (R. 500). HckJever, it is clear that robbery was not the motive, 403 So. 2d 1319 (Fla. 1981), the victim was a police officer who was shot to death with his own gun by the defendants. The gun was found later in the defendant3 possession. from first degree murder to second degree mder due to insufficient evidence of premeditation. - In Hall v. State, This Court reduced the oonviction Apparently, a felony (rok3bery) mder justification for the first degree conviction was considered too tenuous to even address, even though the gun had to be taken frm the officer before he was shot. - In Wody v. State, 403 So. 2d 989 (Fla. 19821, the defendant stabkd the victim to death, set fire to his house, and left the scene in the victhts van. This court found the aggravating circwnstances of felony (.arson) murder to be u nsuped by the evide -wethe fire was set after the victim was killed. Id., at 995. &cause it is clear that the taking of the ring and necklace was an incidental afterthought of the rmrder, this aggravating circumstance As not supported by the evidence and should mt have been considered by the trial murt. (4) The capital felony was ccCnmj_tted for the pwpose of avoiding or preventing a lawful arrest. 921.141 (5) (e), Fla. Stat. (1981). The state argued this circumstance because Sheppard was killed to prevent her from being a witness, (T. 2429-2430), and the trial court agreed. (R. 500-501). (5) The capitaL felony was mtted for pecuniary gain. 921,141 (5) (f), Fla. Stat, (1981). Page -75-
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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
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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 and 48: they were afraid of being killed by
Page 49 and 50: ut munsel could not argue it becaus
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: CR, 6167 T, 58-7 Penalty (R. 16-31
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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