Margaret Bowman was twenty-one. Lisa Levy was twenty. Both were killed in the Chi Omega house at Florida State University in the early hours of January 15, 1978, and three more women were attacked that night, two in the same house and one in an apartment on Dunwoody Street. Theodore Robert Bundy was tried for it in Miami, on a change of venue out of Leon County, convicted, and sentenced to death. This is what happened next.
An appeal is not a retelling. Docket 57772 in the Supreme Court of Florida is four documents and 384 pages of argument about whether the trial was lawful: the defense brief listing the errors Bundy's lawyers said should undo the convictions, the State's answer saying none of them should, the defense reply, and the opinion that settled it. They run here in that order.
The fights are over competency, the publicity and the jury seated in spite of it, the bite mark on Lisa Levy's body matched to Bundy's teeth, the way his counsel conducted the defense, and the sentence. Almost nothing is spent on the facts of the killings, which every reader of these pages was assumed to know already.
Three of the four documents here are arguments, not findings. The defense brief was written to overturn the convictions and the State's answer was written to keep them, and neither is trying to give a balanced account of anything: a brief selects the parts of the record that help it and characterizes the rest. Only the last document, the opinion, decides. Read the first three for what each side thought its best case was, and the fourth for what the court made of them.
Bundy does not speak anywhere in these pages, not once. That surprises people, because he is famous for representing himself, and he did question witnesses in open court during the trial. But that is the reporter's transcript, a different document held by the clerk of the circuit court in Leon County, and it is not in any law library's brief collection. What the briefs do carry, and what makes them useful beyond the arguments, is citation: they name the detectives, the experts and the trial exhibits, and they cite the transcript by volume and page, which is what turns a vague search for records into a request a clerk can act on.
Nothing here needs clearing, and the reason is worth stating precisely: a brief filed with a court becomes part of the public docket whoever wrote it, so the work of the assistant public defenders who signed these and of the assistant attorneys general who answered them is free to read and reproduce. Bundy's own pro se filings would be a different question. None of them are in this collection. The scans came from the Florida State University College of Law, and scanning a public-domain document creates no new rights in it.
The tables of contents and authorities are gone from this page, and dropping them was the single largest decision made about the file: 281 rows of citation index, listing page numbers in a printed volume nobody is holding, scanned worse than anything else in the 384 pages. What remains reads at three quarters to five sixths clean. The characteristic damage here is inside the words rather than between them, so April arrives as A p r i l and Appellant as Appe 11ant, and we closed 622 of those. Capitalized words were not touched at all.
IN THE SUPREME COURT OF FLORIDA
THEODORE ROBERT BUNDY,
Appe 11ant Appeal NO. 57,772 STATE OF FLORIDA, Capital Case Appeal Appel 1ee Second Judicial Circuit of Florida _, FILED Law Offices of
ROBERT AUGUSTUS HARPER, JR.
Counsel for Appellant 308 East Park AV P.O. Box 10132 Tallahassee, FL 32302 TABLE OF--CO@!?ENTS Table of Citations i
11. Statement of the Facts and Case
D. Pre-Indictment Pretrial Proceedings
1. Search and Seizure(s) LO
2. Grand Jury E, Post-Indictment Pre-Trial Proceedings
2. Right to Counsel
111. Argument
A. The trial court erroneously applied nonapplicable standards to Defendant's requested ClOSUre of certain pretrial (Bitemark) evidential hearings, and therefore erred in denying defendant's motion requesting that relief and prejudicing defendant's right to B, The failure of the court to control the pervasive prejudicial publicity denied Defendant his constitutional right to be tried in the county where the offense was committed 51 Art. I, 515, Fla-Const, (1968)
J. Defendant's right to counsel was violated by the trial court's denial of hi5 motion to permit appearance of pro bono out-of-
K. The court's inclusion of jury instructions permitting jurors to infer knowledge of guilt from flight without cautionary in- I;. The trial court erred in denying defendant an evidentiary hearing on the effectiveness of assistance of his trial counsel.
TABLE OF CITATIONS
MiamiHerald Pub. Co. v. ChappeZZ, 403 S0.2d 1343, MiamiHerald Pub. Co. v, CoZZanzo, 329 So.2d 333 Miami Herald Pub. Co. v, Lewis, 383 So.2d 236 (FH.
Murphy. Supreme Court, 249 N.Y, 440, 63 N.E.2d
Murphy v. Florida, 421 U. S. 749, 95 S.Ct. 2031, Nichausv. State, 265 Ind. 655, 359 N.E.2d 513 (Ind.
State. Peoples, 227 Kan. 127, 605 P, 2 d 135 (Kan.
State. Routh, 3 0 Or, App. 901, 568 P.2d 704 S-Late v. Sager, 600 S.W.2d 541 (Mo. W.D.C.A. 1980) cert.
State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (N.
United States. Addison, 498 F.2d 741 (D.C.
Lhzited States. Brown,501 F.2d 146 (9th Cir. 1974) rev'd an other grounds sub nom. mzited States.
LhitedStatesv. Dinitz, 538 F.2d 1214 (5th Cir. 1979
lhitedStatesv. Gray, 565 F.2d 881 (5th Cir, 19781 114 121 lhitedStatesv. Holland, 378 F.Supp. 144 (E.D.P.R.
Witherspoon, Illinois, 391 U.S. 510, 88 S.Ct. 1710, Wyzzer. Fairchild HitZer Corp., 503 F.2d 506 (9th Cir.
STATUTES
OTHER AUTHORITIES
Burton, R. and Arbuthnot, FF, The Kama Sutra of Vatsyayana, Cameron, J.M. and Sims, B.J., "Bitemarks," Forensic Dentistry, (Churchill-Livingstone, London, Diamond, Bernard L., "Inherent Problems on the Use of Pretrial Hypnosis on Prospective Witness,:
Dilloff, Nail J., "The Admissibility of Hypnotically Influenced Testimony," 40 Ohio N.E.
Florida Constitution Florida Court Rules Federal Court Rules 0 c. Rule 702 Fed.R.Evid.
d, Rule 704 Fed, R.Evid.
Gustafson, G., ForensicOdontotogy, "Bite Marks" (American Pelanda, K.Lm, "The Probative Value of Testimony from Hypnotically Refreshed Recollection" 14 Akron Pluckett, T.F.T.; A Concise History of the Common Law, Skreckas (1874) Superarbitrium, betr. der Verlezung Zweir Finger usw., Vischr. GerichtZ. Med. Band Sopher, I.M., Forensic Dentistry, "Bite Mark Analysis" Spector, S. & Foster, E., "Admissibility of Hypnotic Statements, Is the Law of Evidence Susceptible."
"Admissibility of Bite Mark Evidence," WebstgypsThird Neu InternationalDictionary,
STATEMENT OF THE FACTS AND CASE
A. Pre-Arrest THEODORE ROBERT BUNDY was placed in the Tallahassee vicinity on 7 January 1978 (Larry James Wingfield, R7955).
BUNDY was allegedly a student (R 8011-8012) and went by the name of "Chris Hagan" (R 79551. He resided at the Oaks Apartment (R 8410), 409 West College Avenue, Tallahassee (R 8163) # several blocks from the scene of the crime(.s) for which he was accused.
Testimony was proffered (R 8193-8301) and allowed before the jury that BUNDY was observed on the night of 14 January 1978, the night preceding the offenses, at a local bar, by three ao-eds (R 8334~8407)who at trial were permitted to testify to BUNDY'S "unnerving" stare [Carla J. Black, (R 8391)] and that his look "wasn't friendly." One co-ed, Mary Ann Picano, who danced with BUNDY that night, was permitted to testify that he looked "like an ex-con" (R 8404) and that she was scared of him (R8407).
One of BUNDY'S apartment mates, Henry Edward Polombo, 111, and acquaintance, Russell Joseph Gage, testified to their having seen BUNDY on the Sunday morning of the incidents, 15 January 1978, at 4:45 A.M. at the Oaks Apartment (R 8410-ff). The jury was permitted to hear that later on the same day in the company of the same duo that BUNDY had allegedly commented that the offenses were probably the product of some lunatic (R 8441) who was hiding out and had probably done it before (R 8410). Also allegedly BUNDY had at some disputed proximity in time (R 9240) made the boast that he "could get by with anything he wanted to because he knew his way around the law" (R8442).
Randall Clayton Ragans lost his vehicle tag on 13 January 1978 (R 7898). On 11 February 1978 Officer Keith Daws observed BUNDY at a vehicle a short distance from the Oaks Apartment (R 7920). Upon investigation BUNDY, wearing new Levis, fled (R 7920). Officer Roy Dickey also allegedly saw BUNDY in this time interval although he made nore - port to that effect for more than a year (R 7910). BUNDY apparently was last seen in the Tallahassee area the Monday dr Tuesday of the second week of February, 1978 CR 7959).
It was on 15 January 1978 that the offenses in question were committed. The Indictment (R 1-4) alleged Appellant BUNDY to have been the perpetrator of burglary of a dwelling at 661 West Jefferson Street, Tallahassee, Leon County, Florida, the Chi Omega sorority house where Margaret Bowman and Lisa Levy were killed and Karen Chandler and Kathy Kleiner were assaulted and battered. On the same night at 431-A Dunwoody, Tallahassee, Leon County, Florida, it was alleged that BUNDY burglarized the dwelling of and battered the person of Cheryl Thomas. The Indictment, in six counts, averred two capital homicides, two burglaries and three attempted first degree murders.
B. Arrest On 15 February 1978, one month after the incidents, Officer David G. Lee of the Pensacola Police Department observed an orange colored Volkswagen at 1:30 A.M. an Cervantes Street (R6787) which aroused his suspicion.
Officer Lee made a U-turn (R6790) and began following the car fora stop. The officer turned on his blue lights and ran a tag check (R6791) The tag came back stolen (R6792).
Officer Lee ordered BUNDY out of his car and "laid him out" face down on the pavement in order to investigate the VW for additional occupants (R6793). Back up units were en route
(R 6793). The officer had his pistol withdrawn from the holster (R6793). During the scuffle the officer deliberately fired at BUNDY (R6794). BUNDY began to run at which time the officer fired a second round (R 6794). When Officer Lee approached, BUNDY began yelling for help (R6794) and tried to hold the officer's gun (R 6794). BUNDY was cuffed and taken to the patrol car (R 6795). After EUNDY was read his Miranda rights (R 6795) he identified himself as Kenneth Miser (R7978), and the jury heard further testimony over timely objection (R7966, 7969) that BUNDY stated he "wished you'd [Officer Lee] killed me. IfI run at the jail will you kill me then?" (R 7979). Issue was joined on the admissibility of the statements and flight (R6781); ruling in the matter was deferred until the jury was selected and sworn (R 6782-6806). The evidence was admitted upon denial of Defendant's Motion in Liming as indicated (R7966 - 7969).
Thereafter at 3: OO A.M. on the same morning of 15 February 1978, Officer Norman N. Chapman, Jr. reported for duty at the Pensacola Police Department where he met THEODORE ROBERT BUNDY and took him upstairs to the interview room (R 6810); [he read the Miranda warning to BUNDY which was signed at 4:15 A.M.] (R6820). A tape recording regarding the stolen vehicle and tag was made at4:25 A.M.
On the afternoon of 15 February 1978, Officer Donald David Patchen, investigator (R6824) with the Tallahassee Police Department along with Investigator Steven Bodiford of the Leon County Sheriff's Office arrived and met with BUNDY (R 6825).
At 9: 00A.M. on 16 February 1978 first appearance was had at which time BUNDY still maintained his false identity (R6895). The State Attorney, Curtis Golden was present with news media (R6975). The Office of the Public Defender was appointed (R 6895). The StateAttorney, Curtis Golden, waspresentwith news media (R6975). The Office of the Public Defender was appointed (R 6895), and bond was denied
(R 6977). Later the same judge (Greenhut) entered protective order (R6979) ineffectorderingtheOffice of the Public Defender to be notified of attemptedinterviewswith TED BUNDY. Tallahassee Police Departmentofficer Don Patchen waspresentatthehearing (R6840) as were other law enforcement personnel (R6912, 6979). A copy of the Order was served on Officer Norman Chapman, PensacolaPolice Department, shortly afteritwasentered (R6903). Assistant State Attorney, Ron Johnson, Chief Assistant, represented theState atthe hearing (R 6977).
BUNDY still known as Miser requested to call MillardFarmer, an attorneyinAtlanta (R6895). Farmer in turntalkedtoOfficer Chapman and askedif BUNDY had admittedto any crimes (R6895). And MR. Chapman " told him yes, thathe [BUNDY] had admitted to taking the car and credit cards.,.'I (R 6895). It was now the afternoon of 1 6 February 1978 (R6895). The lawyer arrived from Atlantaat The Atlanta lawyer with Assistant Public Defenders Michael Koran and TerryTerrell went tothepolicestation where BUNDY was being housed ratherthanthe Escambia County Jail (R 6980). The conversations were terminated at 9:45 P.M. - 1O: OO P.M. (R 69821, leaving Koran with the impression BUNDY had no disposition to talk to law enforcement people (R 6997). Koran advised Attorney Terrell to make a point of getting with BUNDY early the next day (R 6982).
The lawyers and law enforcement agreed BUNDY/ MISER could use the telephone for the next two hours to call whomever he wanted (R 6896) including former counsel (R 6961) in return for his true identity which he gave (R 6896).
Shortly Washington [state] newspaper called asking about the "THEODORE BUNDY" who was wanted for murder (R 6897).
Coincidentally the FBI was contacted and told ''one of their ten most wanted people" was in custody (R 6897), and the ID was confirmed by a Pensacola Police Department ID offices, by FBI flyer. The FBI flyer appears (R6898) to be the same one brought to Officer Chapman "to be signed by Mr. [THEODORE ROBERT] BUNDY for [arresting officerj David Lee." (R 6922) That same night a press conference was set for 9:00 A.M., the next morning, 17 February 1978, by Officer Norman Chapman "By the flag pole in front of the station, weather permitting" (R 6898). Had Officer Chapman expected the turn out he would "probably made the news conference for the auditorium." (R 6898).
BUNDY requested a priest (R 6899) who stayed until after midnight (R6900).
After midnight the priest left, Officer Chapman took BUNDY to the more comfortable captain quarters which was "better situated for things we needed to do." (R6900);
however the ''bug" equipment was not yet in place (R6859, 6915). Notwithstanding, Officers Chapman, Bodiford and Patchen recorded a statement taken from BUNDY (R6902). The initial session beginning at 1:29 A.M. (R6855) lasted some two hours (R 6902-6903). The machine was then turned offas being ''too formal for the information." (R 6903). Officer Chapman testified at trial from this session that BUNDYliked college camp uses where he would blend in with the students
(R 8011-8012).
At 7: 30A.M. on 17 February 1978 (R 7006) Assistant Public Defender Terry David Term11 (R 7001) returned to the Pensacola Police Department to be told by Captain Joseph and a Pensacola Police Department sergeant that BUNDY was asleep (R 7006). Meanwhile at approximately 7:50 A. M. Officers Patchen [Tallahassee Police Department] and Bodiford [Leon County Sheriff's Office] again began another taped statement from BUNDY (R 6830) which lasted some two hours.
Mr. Terrell went to court and saw Mr. Koran (R 7007).
Mr. Koran, senior attorney and Chief Assistant Public Defender in Escambia County, sent Mr. Terrell back to the Police Station
(R6983). Mr. Terrell with Assistant Public Defender Elizabeth Nichols (R7026) returned to the Pensacola Police Department to find the State Attorney Curtis Golden and Pensacola Police officers engaged in the press conference (R7007). They sought admittance through the back door, the normal entrance for counsel (R7007), to be told they could not cane in as the facility was closed (R7007). At the front door Assistant State Attorney Ron Johnson met them and in reply to the demands of counsel to see their client said, "you will have to wait until this conference is over." (R7008). Assistant State Attorney Johnson further advised that "they were ina very important part of the interrogation and that he would not interrupt it to advise Mr. BUNDY *.I' (R7024) of the presence of counsel (R7009).
The Officers Patchen, Bodiford and Chapman "missed the press conference" (R6905) as they were still interviewing BUNDY, but were informed by Assistant State Attorney Johnson that the attorneys were outside wanting to talk to Mr. BUNDY (R 6906). Counsel Terrell tried to contact Judge Greenhut (R 7009), who was in court. Mrs. Nichols tried to contact her boss, Public Defender Jack Bar (P 7010).
Assistant State Attorney Johnson came back out again and again to bar counsel access to their client, "at least four times," two times at the front of the jail and then one time in the hallway.. and then another time some period later, where he came out"... (R 7010). The twenty-four hour session (R 6915) ended.
Mr. Koran returned to the police department at approximately 11: OO A. M. after court (R 6984). Mr. Koran then caused an affidavit to be prepared which reflected BUNDY no longer wanted to be questioned (R 6985). MR. BUNDY then emotionally upset close to tears, incessantly smoking, mumbling, repeating things over and over again (R 6986) signed (R 6985).
However, on 18 February 1978 at 12:15 A.M. (R 268;
6855) BUNDY was again interviewed by Officer Patchen and Bodiford and taped without counsel and without his knowledge
(R 6860). Another session without notice to counsel ensued at 9:00 P.M. on the evening of 18 February 1978 (R6856) being the last taped session in Pensacola. On 19 February 1978 BUNDY was again interviewed by Tallahassee law enforcement at 1 2 ~ 1 5A.M. (R 6856) without counsel and taped without knowledge of the electronic surveillance; and again at 6: OO P.M.; again at 12:47 A.M. on 20 February 1978; at 1 1: O Q ~ P. M.
on 20 February 1978; at 12:40 P.M. on 2 2 February 1978; (R on 3 June 1978 and 11: OO P.M. on July 1978 (R 269), the latter being at the Leon County Jail (R 268-269; R 6858).
The State did not seek admission of any statement subsequent to 17 February 1978 [per prosecutor Assistant State Attorney Dan McKeever, (R 6856)J. The trial judge granted the Motion to Suppress Statements with. the exception of the statements as noted above (R7053).
D. Pre-Indictment Pretrial Proceedings
1. Search & Seizures) The Record on Appeal as further supplemented does not reflect significant activity after arriving in Leon County on 19 February 1978, until the indictment was handed down on 27 July 1978 (SR 1-ff). However, interviews of the Defendant continued as indicated.
Proceedings on 27 April 1978 (R 1690) reflect that Judge John Rudd entered an order on 1 7 March 1978 compelling the production of handwriting exemplars (K 1692). These proceedings are relative to case no. 78-125, auto theft-burglary, Second Judicial Circuit, Leon County, Florida, (R 135, 1690), not 78-670 the burglary-homicide cases (R 11, of the instant appeal, nevertheless the State requested all defense discovery to be cut off (R 1694) because of Defendant's non-compliance with discovery orders to produce exemplars. The motion was granted (R 162, 1701).
On the same day, 27 April 1978 (SR 81, 16901, a search warrant of a rather unique nature was executed. The warrant was signed on 16 April 1978 (R 5, SR 103) directing the then Sheriff of Leon County, Ken Katsaris and deputy sheriff, Captain Jack Poitinger and all and singular the deputy sheriffs of Leon County, Florida, to search and seize the mouth of THEODORE ROBERT BUNDY. The search warrant commanded the officers to seize the person of THEODORE ROBERT BUNDY and search his mouth under the supervision of Dr.
Richard Souviron and seize from his mouth wax casts and impressions of his upper and lower teeth, geltrate impression of BUNDY'S bite and six close up photographs of the teeth
(R 5, SR 102). The written report of findings by Dr. Souviron was ordered to be filed within thirty (30) days from execution of the warrant (R 6, SR 102). The time period was ex - tended by court order (R 7) upon the State's request (R 5-6).
The report related to the victim Lisa Levy only (R 81, the victim in count three of the Indictment (R 1). The Report dated 6 June 1978 (R 8-12) speaks for itself, but in pertinent part, found (R 11):
A. The marks located on the left buttock are human bites.
B. The bites show little vital reactions were made around the time of death or shortly after.
C. The assailants lower teeth marked closest to ruler. The upper teeth marked farthest (sic) from the ruler.
D. The position of the head of the assailant was therefore toward Ms. Levy's head with her face lying down.
E. There are two distinct marks from the lower teeth.
F. There are three indistinct marks from the upper teeth.
G. The same person made both bite marks I Dr. Souviron concluded, "It is my conclusion, therefore, that both bites made on the left buttock of Ms. Levy, within reasonable dsntaZ certainty, were made by Mr. THEODORE BUNDY." (emphasis added) (R 12).
2. Grand Jurv The issue concerning pre-indictment right to co insel (R 2642) was initially set into motion by Assistant Public Defender Joe Nursey (R2644, SR 2661, who on or about 18 July 1978 (R 147) prepared and filed certain motions prior to DefendantI s indictment on the present charges (R 1644).
Mr. Nursey had been appointed to represent EUNDY on auto burglary and auto theft charges earlier and had been involved in BUNDY ' S representation since 1 9 February 1978 (R 1648, 2653).
BUNDY prose filed a motion for pre-indictment appointment of counsel (R 1645, 2652). The State responded (R2667) that the Defendant had no pre-indictment right to counsel and the Public Defender: had no authority to appear (R 148) prior to appointment. The motions came on for hearing on 21 July1978 (R 2665), SR 266-ff). The presiding Judge John A. Rudd denied the request for public defender assistance (R 715, 2037), on grounds of no statutory authority (SR 276). Be denied the challenge to the grand jury on timeliness (SR 276) - Judge Rudd then on the same date, 21 July 1978t called assistant Attorney General George R. Georgieff and discussed the question of the right to counsel prior to indictment and timeliness of motions filed in connection with grand jury proceedings (R 720) by the Office of the Public Defender. The particular motions (R 705-714; R 1079-1088) were entitled "Motion to Inform Defendant of Grand Jury Proceedings" (R 705, 1079);
"Motion for Temporary Restraining Order and Preliminary Injunction Restraining Grand Juries from Returning Indictment Against "the Defendant" (R 707, 1081); "Motion for Voir Dire Grand Jury" (R709, 1083); *Challenge to the Grand Jury"
(R 711, 1085).
The trial judge, Honorable John A. Rudd, then reversed himself, on the ruling that "Mr. BUNDY hadn rigklt to appointed counsel to present these motions" (R 2644, 2665) by entering a written order dated 24 July 1978 (R 715, 10891, and having a hearing on 2 4 July 1978 (R 2034, SR 280 - 285).
Defense counsel was contacted in the morning by the judge
(R2645) to be informed a hearing was to be held later the same date, with the motions being denied as untimely (R 716- 717, 1090-1091) 1 August 1978 nunc pro tune25 July 1978 (R 151, 717, 1091). The nunc pra tune Order is styled "IN "RE" GRAND JURY INVESTIGATION July 25-27, 1978" (R 250, 716, 1090) which is interesting since the Indictment was presented (R 41 and filed (R 1) on 27 July 1978. The hearing of 25 July 1978 may be found in the Supplemental Record (SR 285-289).
In renewed form Defendant's counsel moved to quash indictment (R 701-744) on grounds relative to the grand jury. The motion came on for hearing before trial Judge Cowart on 16 May 1979 (R 2640-2676) and was again denied
(R 2675).
E. Post-Indictment Pre-Trial Proceedings
1. Publicity The issueofpre-trial publicity is a joint issue with publicity at trial (R 2315). From the taking of depositions (R2303) to location of the media in the courtroom
(R 2437, 3791), from venue change. (R3923) through the jury selection process (R 4035-5518), the publicity attendant to the case was in every way extraordinary. The media which 60 closely scrutinized the proceedings prompted defense motions to seal certain motions and close pretrial hearings (R 256), Motion to Seal Transcripts of Depositions taken by the Defendant (R257), Motion for Protective Order to Close the taking of Depositions and to Seal the Transcripts of the Testimony of Witnesses including Exhibits (R 454-4611, Motion to Prohibit Photography of Defendant in Restraints (R 507- 510), Motion to Strike Portions of the Response filed by the Florida Publishing Company to Defendant's Motions (R 599-602), Motion to Exclude Electronic Media Coverage (R652 - 663), Amended Motion to Exclude Electronic Media Devices from Courtroom (R665 - 667), Motion for In Camera Hearing on Motion In Liming Regarding the Admissibility of Evidence Purporting to Show Other Crimes (R 686-6901, Motion for In Camera Hearing on Motions InLirnine Regarding the Admissibility of Statements (R 691-6941, Motion for Change of Venue (R 748-1072), Motion for In Camera Hearing on Motion to Exclude Testimony of Nita Neary (R 1167-1172), MOtion for IN Camera Hearing on Motion to Suppress Tangible Evidence seized in Utah (R 1180-1183), Motion to Seal Depositions and to Designated Persons to be present at Depositions (R 1185-1191), Supplemental Motion for Continuance
(R 1350-1354), Motion to Prohibit Further Prejudicial Extrajudicial Statements by Leon County Sheriff Ken Katsaris (R 1390-1398), Motion to Sequester Witnesses (R 1399-14071, Motion to Dismiss Jury Venire or, In the Alternative; to Sequester the Jury Venire Until a Jury is picked (R 1413- 1420), Motion for Change of Venue or, in the Alternative, to Abate the Prosecution to Blunt the Effects of Pervasive Prejudicial Pre-trial Publicity (R 1425-1428) I Motion to Exclude Electronic Media Devices from the Courtroom (R 1437-1440).
It is Appellant's position that the pervasive uncontrolled invasion of the media into the judicial arena violated his right to a fair trial.
2. Right to Counsel The Indictment was returned 27 July 1978 (R 1- 4) and the Record on Appeal for most material purposes commences at that point. However on 25 July 1978 (R 725-744, SR 280-284) Mr. Millard Farmer, Seq. of Atlanta, Georgia, sought leave of court to appear pro hac ui. ce. Pleadings to that effect were filed on 2 8 July 1978 (R 16-17), 31 July 1978 (R 24) and 2 August 1978 (R 31-32). Arraignment was 31 July 1978 (R 17041 at which time ruling on the nation(s1 was deferred until 2 August 1978 (R 1705).
At the hearing TED BUNDY was present in proper person without formal counsel appointed CR 1712). The State was allowed by the trial judge (Rudd) to proceed on a motion to extend speedy trial over objection of Defendant (R 1717) after the court deferred hearing and ruling on the motion(s1 to appear pro hue vice (R 1713). The motions regarding the appearance of foreign counsel were filed jointly by Appellant BUNDY and Mr. Farmer (11 16,- 24) and by Public Defender Michael Minerva (R 31). By written order of 3 August 1978 nuncprotune2 August 1978, Circuit Judge Rudd denied the motions without disposing of the issue sought to be reached herein, namely Defendant's right to appointment of counsel pro hac Defendant prose renewed and reiterated this POsition requesting out-of-state counsel (R 279-280) subsequent to the resignation of the ultimate trial judge Hone Edward D.
Cowart (R 281). Judge Cowart entered his order Denying Admission Pro Hue Vice (R 438- 442) on 2 1 February 1979 addressing both the rights of out-of-state counsel and the Sixth Amendment rights of Defendant BUNDY (R439). The transcript of the hearing on the renewed motion before Judge Cowart is found in Volume 22 (R2022 - 2156).
3. Discovery Arraignment was held on 31 July 1978 (R 1706):
on 14 August 1978 (R 18-23) the state's motion to continue was granted (R1784) on grounds of complexity. Each party filed motions to compel discovery (R 74, 77)which were heard on 2 5 September 1978; in substantial portion each party received relief (R1788 - ff) * On 2 October 1978 at the pretrial conference the Defendant moved to continue an grounds that lab reports and discovery disclosure were late in forthcoming making it impossible to prepare for the trial scheduled on 3October1978 (R 1813-ff). The motion to continue was granted (R 1851) in open court and in the presence of prospective jurors in Tallahassee, Leon County, Florida.
The record reflects continued updating of discovery (R84, 106, 107, 121, 132, 241, 277). Additional matters in regard to the disqualification of the trial judge
(R133-226, 229-232) Motion to Dismiss and Motion for Contempt [Souviron] (R 116-120, 126 - 128, 129-131), further motions to continue (R234 - 238, 242-247) Motion to Suppress Evidence (R 248-255) were f iledl land heard but are of no direct consequence at this point to the appeal.
On 9 January 1979 (R 281) Hon. Edward D. Cowart was appointed by this Court to reside over trial proceedings.
Many of the issues previously raised were renewed, Defendant moved for appointment of out-of-state counsel (R279 - 280).
An additional motion to compel discovery was filed (R 283- 286) as were motions for extension to file motion to dismiss indictment (R289 - 290) and additional discovery (R 412, 419).
Defendant was being represented by the Office of the Public Defender Second Judicial Circuit CR 2037).
4. Pre-Trial Evidential Issues With the first trial commencing 12 June 1979 (R 3791) and concluding that same day (R 3923) upon the granting of a change of venue from Tallahassee to Miami, Florida, the intervening weeks and fifteen volume of the record on appeal will be capsulized into issues regarding evidence which for various reasons to be respectively discussed thereafter take on significance in this appeal.
One of the pertinent issues isthemotionto sever filed 12 February 1979 (R429 - 430). The record reflects almost daily efforts made to control the pervasive pre-trial publicity in the case as itemized above.
On 26 April 1979 Defendant filed separate notions to suppress the testimony of witnesses Picano, Bastings, and Nita Neary (R 670-6751: Nita Neary being the purported eye - witness in the case. On 2 May 1979 Defendant filed separate motions in ZimCne to exclude statements and to suppress statements (R695 - 6991 " Defendant's first motion for change of venue was filed on 9 May 1979 (R 748-1072). The disposition of which was previously noted, On 9 May 1979 Defendant ailed a motion in Liming to suppress testimony pertaining to the bite mark identification (R 1122-1124) and motion to strike testimony of state's expert and forensic odontologist (R 1140- 1144) 1) On the Same day motion to suppress tangible evidence seized asa result of unlawful search in Granger, Utah was filed (R 1173-1174) together with Defendant's motion toquash search warrant (bite mark) (R 1175-1179). Volume 2 7 of the record on appeal (R 2432-ff) begins the hearing on these issues of critical concern.
As to the issue of publicity, the Court found that there was a presumption toward dissemination (R 2518) unless clear and present danger was present and no remedy through channels (a) voir dire (b) additional peremptory challenges, or (c) no other order would accomplish the purpose. In an ensuing in camera inspection (R2526) the Court decided to keep certain matters closed to the public until the jury was sequestered (R 2539) and deferred rulings (R 2546) on certain motions. Other motions were called up for hearing; the motion to dismiss was denied (R2675); the motion to suppress Nita Neary testimony was continued until after the jury selection (R2749); the ruling on the bite mark search warrant was also deferred (R2751); the motion to close the hearing was denied as to bite mark testimony from Dr. Souviron (R2810).
Testimony was taken as to the admissibility of the bite mark evidence. After extensive testimony from Dr.
Souviron and Dr. Lowell J. Levine (R 2930) motion to close the hearing was renewed (R2972) ruling upon which was deferred (R2987). Then after adjourning in camera (R2992) the Court found no clear and present danger and continued the hearing (R 2765-3314) which concluded with the testimony of DR. Dwayne DeVore, Chairman of the committee working on standards of bite mark in comparison (R 3260). The competing position of the witnesses for the State, Dr. Souv~Ron, Dr.
Levine, and Dr. DeVore for the defense was that within a reasonable dental certainty, taking the evidence most favor able to the prosecution, the bite marks were those of BUNDY
(R 3114). Dr. Souviron (R 28731, Dr. Levine (R3049) and Dr. DeVore (R 3202) did agree that no standards exist for bite mark analysis. Dr. DeVore went so far as to say that the situation presented was so incongruous that something was wrong; that if the tissues were correct the photos were wrong, and if the photos were correct the tissue sample) was wrong (R 3219). Espousing doubts as to the impartiality of Dr. Souviron, the court deferred ruling on motion until the taking of testimony at trial (R3357).
On 31 May 1979 (R 3470) situational developments between counsel and Defendant precipated with the defendant requesting replacement of counsel (R 1262-1266). The motion was predicated upon the choice of counsel to move fora competency hearing of Defendant (R 1280) over the objection of the defendant. The matter came on for hearing (R3580) initially on efforts to close the hearing (R 1281-1283). Attorney Brian Hayes (8 3600) was appointed to represent the Defendant and appeared at the actual hearing held 11 June 1979 (R 3615);
the hearing concluded with the finding of competency (R 3659).
The Defendant moved to discharge the Office of Public Defender without waiving his right to counsel (R1262 - 1266) which led to the only counself court appointed, with any previous capital case experience, Michael Minerva, to withdraw (R 3677;
F. Trial Proceedings in Tallahassee The motion to continue on grounds involving venue was under advisement (R 3762) when initial trial proceedings began 12 June 1979 in Tallahassee (R 3791). Individual voir dire (R 3764, 3812) commenced with the defense being granted twenty-five (25) peremptory challenges (R 3810).
After a series of jurors were excused for cause, the change of venue was granted (R3923). The order changing venue was filed the same day, 12 June 1979 (R 1347). Trial was rest for 25 June 1979 (R 3923) in Miami.
G. Trial Proceedings in Miami During the interval between trials, little additional legal positioning is evident from the record. On the day the trial commenced, 25 June1979, a number of motions were filed including Motion to Improve Conditions of Confinement, (R 1372-1377), Motion to Continue (R 1378-1380), Motion to Compel Discovery (H 1384-1389), Motion to Prohibit Further Prejudicial Extrajudicial Statements by Leon County Sheriff (R 1390-1398), Motion to Sequester Witnesses (R 1399-14071, the state's motion for competency hearing (R 1412), motion to prevent disqualification of jurors because of views on capital punishment (R 1421-1423). Several other additional motions were filed including a request for additional preemptory challenges (R 3951); however, the foregoing reflect the most pertinent issues at this junction.
1. Jury Selection Jury selection continued through 3 0 June 1979 ending with the selection of alternates (R5552). Several jurors were excused because of scruples concerning the death penalty (R 4205, 4274, 4617, 5386, 5492. With camera aimed at defense table (R3969) and parabolic mike on ready, the trial began (R 4949). Individual v o { r ire revealed grounds for challenge for cause time and time again. The primary grounds for cause was predisposition aroused by the pervasive publicity surrounding the case (R 4036-4201) as the initial half dozen jurors called were so infected. A juror noted one would "have to be in Siberia" (R 5466) to have avoided the publicity about the case. In fact all prospective jurors had indeed heard about the case save one (R 5086).
During the examination of one juror, it was discovered that in the jury pool room prospective jurors were talking (R 5149) that they were afraid Defendant BUNDY would have friends on the outside that would get them (R 5147). The juror testified that the conversation affected people there
(R 5149) precipatating a motion to strike those prospective jurors sequestered on the fourth floor (R 5115). The Court caused and expedited voir dire (R 5149) regarding that issue and denied the motion to strike the mini-panel IR 5161).
Motion was later renewed and denied regarding the fourth floor Approximately twenty-four (24) jurors were excused due to their knowledge of the case gained through pretrial publicity (R 4080-4103, 4144, 4201, 4255, 4313, 4314, 4968, 4981, 5080, 5161). Defendant's request for additional peremptory challenges was denied (R5230).
2. Counsel at Trial The issue of effectiveness of counsel has been previously raised by Appellant ina separately filed pleading. As mentioned, no court appointed counsel had capital case experience (R 9822) and the trial judge denied the defendant's request for an evidentiary hearing on the issue of effectiveness of counsel (R 10,079). While the trial judge desired the issue to be raised on appeal and not ten years down the road (R9045), it is impossible to brief the issue meaning fully without a full record regarding the points raised by Appellant's Motion for De Nov Hearing on Effectiveness of Counsel.
Appearances on behalf of the Defendant included Mr. Edward Harvey, Ms. Margaret Good and, Ms. Lynn Alan Thmnpson Assistant Public Defenders, and Mr. Robert M. Haggard, volunteer private counsel; on behalf of the state, Hon. Harry Morrison, State Attorney; MR. Larry Simpson, MR. Dan McKeever, and Ms. Lynda Kent, Assistant State Attorneys (R 4190).
As to effectiveness of counsel, the issue will be broken down into (1)failure to appoint supervisory camel with experience in capital cases, (2) the trial court denial of an evidentiary hearing on the effectiveness of counsel, (R 10,079, 10,130) and (3) evidence of counsel ineffective ness.
3. Evidential Issues at Trial Defendant's Motion to Compel Discovery (R 1384- 1389) was filed on 25 June 1979 and was taken under advisement until the jury was selected (R 3962). The Motion sought a "letter written by one Howard Anderson, now deceased, who took his own life after admitting to perpetuating the crimes with which the defendant is charged" (R 1384); "The letter wrapped in tin foil received by Sheriff Katsaris frcPnAtldnta which contained admissions and several details of the crime which had not yet been published in the newspaper." (1984):
"The substance of the confession written on the wall of the Rose Printing Company, Tallahassee, as well as the identity of the author and any statements given by him to any police officer." (R 1384-1385); "the transcripts or substance of any statements made by any of these named suspects and the identity of the person to whom such statements were made;'!
(R 1386). The state at hearings on 2 July 1979 did not oppose the letters being disclosed (R5663) as well as the Rose confession (R 5665) - The court then considered matters of daily transcripts and grand jury testimony, before going into evidential issues of Defendant's Motion to Suppress Testimony of Nita Neary (R 670-672; 5691). Defense counsel sought to waive Defendant's presence at the hearing during the testimony of the witness, Nita Neary. The request was denied (R 5692).
By stipulation the state proceeded to put on evidence first regarding identification (R 5691). Ms. Nancy Dowdy testified that Nita Neary told her of seeing a male in light pants and a jacket witha ski cap and something in his hand leave by way of the front door shortly before the facts of the incident on the night in question were known (R 5702-5703);
the male being somewhat bigger or taller than the Chi Omega house man, Ronnie Eng (R 5706-5707).
Ms. Dowdy was followed on the stand by TPD Officer Oscar Brannon who testified to receiving the initial description of a "white male, young, approximately five feet eight inches tall, approximately 160 pounds, slender build, clean shaven, had a large distinguished nose, protruding nose, a dark complexion, smooth; last seen wearing a dark toboggan type cap, a waist length dark jacket, light colored pants, and carrying a large stick" (R 5800). Officer Brannon dispatched the description to other field units (R 5798). On cross examination the Officer recited to arriving at the Chi Omega house at 3: 23A.M.
Investigator Stephanie Wright of the Lean County Sheriff's Office was next called (R58511 and testified to her interview of Ms. Neary had on 15 January 1978 sometime between 5: OO A.M. and 7:30 A.M. (R 5853). Officer Linda Presnell, FSUPD, testified she arrived at the Chi Omega house at 4: OO
A.M. on 15 January 1978 (R5882) and related her interview of Ms. Neary (R5883 - 5887). Later on that evening Ms. Prescott went back over to the sorority house with an artist named Kenniston who drew sketches of Ms. Neary's description (R 5888).
The six sketches were introduced at the hearing (R5888 - 5889).
Ms. Prescott was followed by Captain Jack Poitinger, Commander of the CID unit of the Leon County Sheriff's Office (R 5931).
Captain Poitinger was later made case agent or officer in charge of the case (R5932). Captain Poitinger related the substance of the hypnosis session conducted on 2 3 January 1978 on the witness Ms. Neary (R5934). Tapas of the session were marked and introduced into evidence (R 5936-5937).
Captain Poitinger on 6 April 1978 went to Muncie, Indiana, to conduct a photographic line-up with Ms. Neary (R 5944). The actual photo spread was shown Ms. Neary on 7 April 1978 consisting of ten (10) separate pictures (R5946) of different persons. Defendant BUNDY'S picture was in position four (R5947), Defendant having been taken into custody on 15 February 1978. The session was also tape recorded (R 5948).
Ms. Neary had seen photographs of BUNDY in the media (R:5949).
Ms. Neary picked out number four stating ''I don't know: pmty definite resemblance". (R-595J). AS to the hypnosis session, Captain Poitinger admitted from it the investigators "were able to obtain the color of the hair". (R 5956). The tapes and the photo line up area. part of the exhibits and record
(R 5936, 5952) and need to be examined (Exhibits 9, 10, 12, The witness NitaNeary was called (R 60231.. She testified having arrived from a fraternity party at about3: OO
A.M. (R6025) and having had "a few beers" (R 6026). She entered through the back door combination lock (R 6026) walked through the recreation room into the living room where she heard a loud thump (R6027). Thinking her date might have fallen down (R6027) she walked out toward the stairs to look out. Going back through the recreation room, she heard someone running upstairs (R 60281. Upon getting closer to the stairs in the foyer, she heard somebody running down the stairs, and at the front foyer she saw a man at the door (R 6028)I with his left hand on the doorknob ina stooping post ure (R 6031).
She saw only a profile (R 6032). The man was carrying a club witha dark sock around the middle (R6032). She recalled a dark complexioned, slightly built, clear complected man, around five feet eight inches (5'8'') in height, one hundred sixty-five (165) pounds witha prominent pointed nose wearing a dark jacket and light pants (R 60331, and a stocking cap, pulled down to his eyebrows, was over his hair and ears (R 6034). She saw him in motion for a matter of maybe three seconds (R 6034); she maintained a still conception from seeing him stop fora fraction of a second at the door (R 6032).
Her first thought was ''What was Ronnie Eng [the houseboy] doing in the house?" (R 6035). The victims were then found and police called (R 6037-60401.
As to the photo array, Ms. Neary said she initially picked out two photographs before eliminating one (R 6047).
She further testified of having had occasion to see the Defendant BUNDY at the Tallahassee trial in October (R 6050).
Upon request by the state, the court ordered everybody in the courtroom stand and turn a right profile to the witness (R 6051) including the Defendant who was at counsel table (R 6053). The witness then identified Defendant -RE ROBERT EUNDY (R6056). Ms. Neary also acknowledged seeing the series of newspaper photographs of BUNDY published after his arrest (R 6137; Exhibits A-1, A-2, and A-3, R 1534).
Officer George C. Brand of the Leon County-Sheriff's- Department was called by the defense and testified that on 23 January 1978, prior to the hypnosis session Ms. Neary desaikd to Mr. Brand the person she saw at the State Attorney's Office in Tallahassee (R 6271.).. Ms. Neary an that occasion described alight complexioned male about five feet ten inches to five feet eleven inches (5p10'' 5'11'') in height (R 6274). Officer Raymond Crew was called and testified to his initial BOLVO (R 6347). The artist next testified that Ms. Neary told him she might be able to recognize the man she saw (R 6398).
Detective (sic) James Steven Bodiford, of the Leon County Sheriff's Office played a taped telephone conversation with Nita Neary's mother which appears in the Record (R 6403- 6409). The conversation was 14 Mar& 1978 (R 6402) Mrs. Neary stated that Nita Neary had seen BUNDY'S photos in the newspaper and wanted to see a profile (R 6407). Mr. Bodiford advised Mrs. Neary to keep Nita Neary from seeing more pictures because "that is what is called a tainted line-up" (R6408).
Mr. Bodiford next played a tape of a telephone conversation between himself and Nita Neary (€t 6411-6414). MS. Neary couldn't guarantee, but. I could say he resembles him'' IR 6411).
Ronald Eng, the houseboy, was called for comparison (R6424).
An expert in hypnosis, Dr. David S. Kuypers, was called and qualified (R 6427). and finally tendered as an expert in the field of clinical psychology and hypnosis (R €432).
The witness having previously examined reports, interviews, tapes and photos (R 6433-6436) used the state's hypnosis ses - sion to cite examples of inappropriate suggestions (R 6443, 6485). In Ms. Neary!s subsequent conversation on tape with the Sheriff of Leon County, the witness identified responses to post hypnotic suggestion CX 6489, 64911. The witness indicated that Ms. Neary!'produced items or altered details" (R6493) asa result of positive hallucination CR 6455, 6459) and hypnotic suggestion, leaving the greater probability of certain production responses rather than actual recall (R 65061 resulting in contamination (R 6504). The court de- ' ferred ruling until after the hearing on the motion to suppress Utah evidence CR 65111, The trial proceedings, jury absent, next went into the search and seizure relative to THEODORE ROBERT BUNDY
(R 65111 in Granger, Utah. The Utah motion is actually titled CN Zimine (R 681-685). The evidence the state sought to use stemmed from a stop, search and seizure two and one - half (2%) years earlier in Granger, Utah (R 682) on 16 August 1975. A small crowbar, a ski mask, and pantyhose were seized from the car that BUNDY was driving (R 6518-6519). The trial judge finding res judicata as to the legality of the search and seizure by virtue of the Supreme Court of Utah having ruled in the area (R 6690) found the evidence inadmissible (R 7832) and went on to rule on the admissibility of the Nita Neary testimony CR 6691-66971. in denying the motion to suppress.
Hearings continued as to collateral crimes wherein it was established that Randall Raggins had lost a tag on or about 13 January 1978 (R 6697) and Officer Ray Dickey, TPD had seen BUNDY (Brief of Appellant p. 2 1. The hearings on the admissibility of statements o$ the Defendant in Pensacola as previously noted followed (BOA 5 2. The statements and tapes were ordered suppressed (R 7Q531, The Notion to Sever came an to be heard (R 70591 on evidence proffered by counsel, rather than the taking of testimony (R 7060-7067) and was denied (R 70791. The trial judge heard argument on the previously deferred motions to quash bite mark sea.reh warrant and motion to suppress evidence of the bite mark identification
(R 7079)- and denied the motions (R7099).
4. Opening Argument After opening argument by the state (R 7106-71271, the defense (R 7127-7145) presentation was somewhat feeble by virtue of approximately fifteen (15) objections being sustained.
Counsel's comments [Haggard] were not the proper object of opening argument (R 7128, 7133, 7134, 7135, 7136, 7137, 7138, 7139, 7141, 7142, 7143, 7144, 7145). The defense presented was that BUNDY was not the person who con united the crimes alleged (R 7127).
5. Trial Testimony The first major witness, Ms, Nancy Dowd, took the stand (R 7135) and testified in substance as earlier outlined.
Oscar Brannon netestified as to the Nita Neary description
(R7189) and finding moss and bark. Henry Newick (R7218) found victim Margaret Bowman (R 7223) with fractured skull and bark on the bed. Raymond Crew (R7238) found victim Lisa Levy.
The trial was briefly recessed for the deposition of victim Cheryl Thomas of the Dunwoody incident who was not previously deposed due to media attention CR 7272). Two girls from the sorority were called who basically testified they had seen the deceased victims alive earlier that evening (R 7279, 7289).
The emergency medical technicians told of the condition of victim Lisa Levy (R 7300). Victim Karen Chandler (R7320) and Kathy Kleiner [DeShields] (R 7327). each related being battered and having no idea of the identity of the assailant or assailants.
Ms. Debra Ciccarecci (R7329) of the Dunwoody address (R7330) testified ta having heard thumping noises below her upstairs apartment (R7333) prompting her to call the police (R7334). Apartment mate, Ms. Nancy Young, heard someone exit through the Dunwoody address kitchen (R 7353). Officer Wilton Dozier of the Tallahassee Police Department testified the Dunwoody address to be about two miles from the Chi Omega address (R 7360) and to finding pantyhose at Cheryl Thomas' apartment at Dunwoody Street (R 7369). Deputy Mary Ann Kirkham was dispatched to the Dunwoody Street apartment where she took pictures (R 7143). The pantyhose became characterized asa "mask" (R 7420, 7423, 744l).. Officer Bruce Johnson col - elected the evidence at the Dunwoody apartment (R 7443)_. Victim Cheryl Thomas testified that late 14 January 1978 or early 15 January 1978 she went to sleep (R74591 only to wake up in the hospital. She testified she had had no sexual relations that night (R 7474).
Officer Howard Winkler (R 7476) was dispatched to the Chi Omega house (R 7477) and took pictures of the house and crime scene (R 7481-ff) including pantyhose around the neck of victim Margaret Bowman (Exhibit 3 3). Hanes pantyhose were also seized from the soorn of Lisa Levy together witha hairspray bottle nine (9) days later (R 7689; Exhibits 56 and Dr. Thomas Purcer Wood, the pathologist was called out of turn (R 7694) in order to establish the necessary predicate for FDLE forensic serologist, Richard L, Stephens (R 7690) who had examined swabs and blood samples (Exhibits 58, 59, 60, 61 and 6 2) taken from the respective victims. His findings:
1. Karen Chandler (R 7702-ffl
a. "All Blood group A
b. ''BA" Erythrocyte Acid Phosphatase
c. "1" Estrase D type
d. " 2 - lt1 Phosphoglucoutase type
e. ''1" Adenylate Kinase
2. Kathy Kleiner (R 7704)
a. "All Blood group
b. ''BA" Erythrocyte Acid Phosphatase
c. ''1" Estrase D type
d. "2-1" Phosphoglucoutase type
e. ''1'' Adenylate Kinase
a. " 0 " Blood group
b. "BA" Edythrccyte Acid Phosphatase
c. ''1" Estrase D type
d. "1" Phosphoglucoutase type
e. Adenylate Kinase
a. " 0 " Blood group
b. "BA" Erythrocyte Acid Phosphatase
c. "1" Estrase D type
d. 1r2-1t1 Phosphoglucoutase type
e. ['l'' Adenylate Kinase
5. Cheryl Thomas (R 7706).
a. "0" Blood group
b. r'BA" Erythrocyte Acid Phosphatase
c. I'll Estrase D type
d. ''2-1'' Phosphoglucoutase type
e. "1" Adenylate Kinase Ms. Laura Evans Nixon established the identity of both of the deceased (R7779); Dr. Thomas Purcer Wood, the pathologist, (R7782) testified to the autopsy results of the victims. Lisa Levy was knocked unconscious, bitten on the breast and buttock, sexually molested vaginally and anally, and strangled (R7796). Margaret Bowman was strangled to death (R 7802) showing no anal or vaginal trauma (R7805).
Testimony was elicited as to hair samples seized and analyzed (R 80251. Ms. Patricia Ann Lasko, microanalyst with FDLE compared the Defendant's hair with hair fn the pantyhose found at Dunwoody Street (R 8077). The comparison results were not an absolute identification (R 8084), but the sample from the Dunwoody pantyhose microscopically "could have came from the same source as the standard of THEODORE BUNDY" (R8074). No ABO blood group ing tests were run on the hair (R 8159) I no scale count, no scale index test (R 8159), no retraction index test, and no election scan text were performed CR 8160).
Deputy William P. Gunter, sergeant with the Leon County Sheriff's Office (R 8162) processed room 12, 409 West College Avenue, Tallahassee, on 16 February 1978 (R 8164) which is the address previously attributed to TED BUNDY. He testified to obtaining lifts from outside the apartment but no latent lifts of evidential value from inside, appearing to him as if the room had been wiped (R 8167) or cleaned. Mr.
Daniel G. Hasty, FDLE latent print analyst (R 8171) matched the latent from the outside door panel of the Oaks Apartment, 409 West College, with the Defendant (R 8174). No lifts from the crime scenes compared to BUNDY.
The trial in the absence of the jury (R 8193) proceeded into attempted suppression of the Hastings-Picano- Black testimony (BOA 11, and concluded with the judge allowing the testimony (R 8301). That testimony before the jury was next presented (R 8334-8407), and was followed by the residents of the Oaks Apartments, also earlier connoted (.BOA 1-2). The chain of custody as to the sketches of the person allegedly seen by the witness Nita Neary was established (R 8460) setting the stage for her trial testimony of Ms. Neary CR 84691, which was similar to her earlier testimony (R8469 - Ms. Neary was followed by the "kit mark" testimony and witnesses Souviron, Campbell and Levine. The basic conclusion was that within a reasonable medical certainty, the teeth of TED BUNDY made the bite marks on the victim Lisa Levy, as reproduced through photography techniques CR 8649- 9001). No state witness testified to or used actual tissue samples far comparison analysis.
The state shortly thereafter rested its case.
Motion for judgment of acquittal was made and dmied (R9023).
Defense counsel announced ready for trial with exhibits (R 9024). The defense began with another riff between counsel and the Defendant (R9036). It became obvious the defense was not ready asa motion was made to reopen the case for the defense after resting (R 96241, The defense had evidence from blow-ups of the Defendant taken when he was arrested in Pensacola which showed no chip on one of the teeth, a critical point of comparison {R9978 - 9984). The Defendant and another witness testified that the chip in the tooth was made in jail in Pensacola after the crimes were committed (R 9590).
The trial judge found the defense had adequate time to develope the photo (R98301, and related testimony, and if the evidence had been timely prepared and presented, the court would have admitted it (R 999Q). The failure to procure the evidence was attributed to counsel (R9998).
At this point, the record reflects one court appointed counsel seeking to withdraw (R9287) without prior notice to the Defendant (R 9293). Another motion to mentally examine the Defendant (R 9283) was made. As noted by BUNDY he had "no responsibility for, but [bore] complete conswces for...I' the acts and/or omissions of counsel, (R 9038).
Attorney Bob Haggard was excused from the case (R9294).
The defense tactic was primarily an attack on the credibility or strength of the state's case. ME.. Nancy Dowdy was recalled as to Nita Neary's initial description. Doctor John Mitchell and Dr. Duane DeVore testified relative to the strength or weakness of the bite mark identification (R 9Q61- 92171. Officers Wayne Hicks, George Brand and Benjamin Masterson were called relative to state's witnesses' earlier inconsistent accounts CR 9217 - 9265). Ronnie Eng was called for physical identification demonstration purposes (R 9329).
TheNita Neary tapes of her hypnosis session and telephone conversations with law enforcement were introduced (R9348 - 9372). Witnesses testified TED BUNDY was an 0 type secreter (R 9415-9440); which closed the evidence at trial.
6. Jury Instructions - Charge Conference Defendant requested through counsel special instructions on bite mark (R 1526-1527) and hair analysis (R 1521) which were denied (R 9523). Defense counsel requested an alternative jury instruction to the new standard on reamable doubt (R 1532-1533) which was denied (R 9472). Defense counsel also requested an alternative instruction to the standard (R 1.522) as ta the Defendant not testifying, Fla.Std.
Jury Instr. (Crim.) 2.13(h), arguing that the language in the standard "failure to testify" amounted to a comment on the Defendant exercising his right to remain silent(R 9476). The standard jury instruction was given (R9749) and reflected the standard language that "a defendant'sfailure to take the witness stand must not be considered in any manner as an admission of guilt, nor should his failure to take the witness stand influence your verdict in any manner whatsoever." (R 9749). Timely objection to the jury instruction on "flight" was also lodged (R 9512, 9515).
7. Closing Argument Argument of counsel proceeded with the state laying emphasis on flight from the tag incident (R 96452, resisting arrest (R 9647) and fleeing in Pmsacola (R 9647). Defense closing was a general argument to the sufficiency.
The verdicts were, guilty to all counts (R 1586- 1591; SR 590).
8. Post-Guilt Phase The defense moved for the imposition of life sentences (R 1605-1606) on the basis of the aborted plea agreement. The defense theory was that the Defendant by not pleading guilty and insisting on a trial by jury was being punished for the exercise of his constitutional right to a trial by jury. The motion was denied (R 9805).
Defendant also filed a motion for statement of Particulars (R 1603-1604) and specially requested a jury instruction on "heinous ness" (R 1608-16211 which were denied
(R 9816).
9. Penaltv Phase The defense stipulated ta the existence of an aggravating circumstance on violence (R 9868) as an essential element of the prior kidnapping conviction in Utah (R 9867).
It was also stipulated that the Defendant was under sentence (R 9863) and had not been pardoned or paroled at the time of the Tallahassee assaults (R 9878).
The mitigating issues were actually stipulated in part by the court, particularly the issue of mental impairment (R 9977). The judge found reduction of mental faculties (R 10,024) asa mitigating factor.
The trial court further found the capital felonies to have been committed while the Defendant was engaged in the crime of burglary (R lO, lOl), and that the capital crimes were especially heinous, atrocious or cruel, and fla - lowed the jury advisory sentence of death (R 1626-16271, and in written form (R 1629) memoralized the findings.
The Motion for New Trial pre serves the pertinent issues (R 1650-1658) including the post-trial denial of motion for Judgment of Acquittal (R 10,128).
The instant appeal ensued on timely notice (R 1665).
THE TRIAL COURT ERRONEOUSLY APPLIED NON-
APPLICABLE STANDARDS TO DEFENDANT'S RE-
QUESTED CLOSURE OF CIiRTAIN PRETRIAL (BIT&
MARK) EVIDENTIAL HEARINGS, AND THEREFORE
ERRED IN DENYING DEFENLIANT'S MOTION RE-
QUESTING THAT RELIEF AND PREJUDICING
DEFENDANT'S HIGHT TO A FAIR TRIAL
The instant issue is not " prior restraint," but "public access." OcaLa Star banner corp. V. Strugzs, 388 So.Zd 1367 (Fla. 5th DCA lv80j. In that context a derenaant's right to a fair trial may complete with the PuDlic's right to information. Miami HeraZd Pub. Co. v. ChappeLl, 403 so.Zd Fla.
1343 (Ad UCA 1981). Citing, Stateexral. Mzam-herald Pub.
Co. v. Mclntosh, 340 So.Zd 9U4 (Pla. 1977).
It is the duty of the trial judge to protect a defendant from inherently prejudicial publicity which will saturate the community, sheppardv * Maxwe ~ Z, 384 U.S. 333,3b3;
86S.Ct. 1507, 1522 (1966). The venue change in the instant case was not sufficient to protect the defendant's rights.
Fla.
Miami Herald Pub. Co. v. Lewis, 383 So.2d 236 (Path DCA lY801, at 24U. Rather tnan the implicit constitutional right of the public to attend criminal trials, Richmond lvewspapers, Inc. v.
Vzrgznia, 100 S.Ct. 2814 (198U), the concern is with the particularly acute danger of publicity concerning pretrial suppression issues. Gannett Co. Inc. (2). Depasquale, 433U, S.
The Gannett court noted tne precise problem confronting Appellant, the effects of pretrial disclosure on the fairness of: the trial.
"Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun. Cf.
Rideau v. Louisiana, 373u, S, 723, 83 S.Ct. 1417, loL.lsd.zd 663." Gannett supra, 99 S.Ct. 290s.
While Richmond flewspapers recognizes a constitutional right ok the public to attend criminal trials, Gannett expressly rejects tne concept of a constitutional right in strangers to attend a pretrial proceedings, Gannett, supra, [ IJf the examination must necessarily.
be public, the consequence may be that the testimony upon the merely preliminary examination will be spread before the community, and a state of opinion created, which, in cases of great public interest, will render it diffi - cult to obtain an unprejudiced jury, The interests of justice require that the case of the defendant should not be prejudiced, if it can be avoided;
and no one can justly complain, that until he is put upon ins trial, the dangers of this pre judgment are obviated.".. Commissioners of Practice and Pleadings, Code of Criminal Procedure, Final Rep. S202 (1850). Gannett, supra, 9 9 SaCt. 2911.
Miami HeraZd Pub, Co. v. Lew < s, 383 So.2d 23b (Fia.
4th DCA 198u), at 238, addressed the same issues and reached the same conclusion. The Fourth District recited a three pronged analysis on the sealing of a suppression hearing:
1. is necessary to prevent a serious and imminent threat to the administration of justice.
2. Can be established that no less restrictive alternative measures are available.
3, Will in fact achieve the Court's pose, In finding the danger in Gannett was effectively avoided in Leuis, the district court found the admissibility of the evidence vitiated the potential hazard of unreasonably exposing jurors to inculpatory information. in caveat the court Stated, Mzarni Herald. Pub. Co. v. Lewis, supra, 383 So.2d 240:
We do not foreclose the possibility that there will be cases of such notoriety that a change of venue will not suffice, Thus our conclusion here is expressly limited to the circumstances of this case.
It is submitted the Theodore RuBEKT BUNDY case is Of such notoriety.
"when the conduct restrained involves tne exercise of a constitutionally protected right or freedom, as of speech, press, or religion, then a different test may reasonably be applied or a more stringent necessity required before such restraint or uncontrol is warranted. But it does not follow that a court is governed by the same rules In restricting access to its own proceedings (or penalizing a direct violation of such restrictions) as in restraining or penalizing independent conduct ot third parties. Tne safeguard against an abusive judicial "censorship" of its proceedings by such means is tne same as that which controls all judicial action in this direction: the requirement that such measures must appear to be necessary to a tair trial." Brumf'ieLd
v. State, 108 So.2d 3 3 (Fla. 1938) at 3 6.
It is a generally recognized rule that criminal trial judge may exclude all or any portion ot the public from a trial, depending upon the necessities of tne situation, in order to prevent disorders and distrubances of any nature which coulcl interfere with the orderly course of the proceedings. It, is not error to refuse to news gathering forces the right to obtain or release the name of a rape prosecutrix, or to keep certain portions of judicial records confidential. The purpose of such restrictions is not confined to prevention of physical disturbance, for the power to limit public information or exciuce spectators includes the power to limit the vicarious audience by prohibiting photography. Brumfzeza, supra, 108 S0.2d at 36.
NO Florida Supreme Court case holds that the "clear and present danger" rule governs a court's power to restrict, upon occasion, the pubiic character of judicial proceedings or to regulate ar pSace certain limitations on public access to persons in custody. "The requirement has been simply that such limitations must appear to be reasonably required for the orderly administration of justice. " BrurnfieZd, supraJ 108 So.zd at 3 7. The duty or the court in tins respect is not confined to preserving order or decorum in tne courtroom itself, but relates to the entire process from the inception, in tne case of criminal proceedings, of ofticLal custody of the accused.
"It is generally conceded that under certain circumstances the public and press alike might be denied permission to interview or otherwise make personal contact witha prisoner awaiting trial. [R 1271 Certainly he might be brought to the courtroom, for arraignment, by a route other than the public corridor if physical facilities were available. [ R 53311 If constitutional inhibitions do not prevent that procedure, can they operate to prevent a court's accomplishing the same end by injunctive order if circumstances dictate such precautions? We think not," BrumfieZd, supra, 1-8 So.2d at The primary issue at this point is preserved by Defendant's Motion for In Camera hearing on Motion In Limine on the admissibility of the bite mark evidence (R 686-690, 2467). The Court utilized the "clear and present danger" test (R2518) and the three pronged analysis. The hearing on the bite mark was open to the public (R 2810) over protestations of the defendant (R 2748). Defendant further moved to continue the hearing until after the selection of the jury (R 2749) which was ultimately denied (R 2994) as the court found no "clear and present danger." The standard by the court is to restrictive and by applying the incorrect standard, error was committed.
In access cases the three pronged analysis of "clear and present danger" is not applicable. Sentinel2 Star Co. v.
sky virtue of its inherent power to control the conduct of its own proceedings, there is little doubt that under certain circumstances the courts may exclude the public and the press from its proceedings, but such authority must be cautiously exercised. State ex re^. Gore Newspapers Company v, Tyson, 313 So.2d / 7 7 (Fla. 4th DcA 1975). Generally, in criminal cases the sealing of court records or proceedings is done witha view toward protecting the rights of the defendant to a tair trial. News-Press PUP Co. Inc. 0.
State, 345 So.2d 865 (Fla. 2a DCA 1977).
Judicial powers possessed by a trial court are classified either as inherent powers, stemming from its existence asa court, or as powers Which depend upon constitutional or statutory authorization for their exercise. avery court has the inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to valid existing laws and constitutional provisions, These powers, however, must be invoked in the exercise of sound judicial discretion. hiurn< HeraLd Pub. Co. v. CoZZaxo, 329 So.2d 333 (Fla. 3 4 DCA 1976).
Rather than "clear and present danger" the test is simply that limitations are "reasonably required for tne orderly administration of justice." BrumfzeZa, supra, lU8 So.
26 37. The duty ot the court relates to the entire criminal justice process from its inception with official custody of the accused. Just as no constitutional imperative prohibits alternate or private routes to and from tne courtroom (H 50'/- 510) no constitutional prescription prohibits a court from accomplishing the same em by injunctive orders, particularLy in an "access" case. BrumfzeZa, supra, 108 So.2d 37. Traditionally access m criminal cases is based upon fundamental government interests and protection of other rights which over ride the concerns of the public. U.S. v. Gurney, 538 in determining the restrictions to be placed upon access to judicial proceedings, the court must balance the rights and interests ok the parties to the litigation with those ot the public and press. State ex re. Gore flews - paper Co. v. T'ysson, 313 So.Ld 717 (Fla. 4th DCA 19"/5).
Ina criminal proceeding, it is not the province of the court to control publicity as such, but only to control publicity Such as will deny a defendant his right to a fair trial. Therefore, if denial of access is proper, there must be some selectivity. Ocala Star 8anner Corp. v. Sturgis, 388 So.2~ 13b7 (Pla. 5tn DCA 1980).
The record is preserved as to requested closure (Fla. 1st DCA 1979). But to show prejudice ina specific case something more than general juror awareness is required, Murphy v. Florida, 4 ~ U.S.
CZark v. State, 379 So.2d 372 (Pla. 1st DCA 1979).
Prejudice may be presumed in circumstances where the trial atmosphere has been corrupted by press coverage. Irwin Rideau. Louisiana, 373 U.S. 723, 8 3 Sect. 1417, 10 L.Ed.2d
663 (19b3); Escss v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 Court reflects four or the actual. jurors, including one alternate, were more tnan aware ot the bite mark evidence issue (R 4109, 4522, 5477, 5b04). Irwin v. UOWd, supra, 331 U.S.
126 - 7 2 ' 1, 81 S, ct. 1645. The statements of jurors that they would not be influenced by the news accounts is not dispositive.
Sheppardv. MaxweLZ, supra, 384 u.S. 351, 86 S.Ct. 151b.
Accord, l'rwz-n v. oowd, 366 u.S. 71'7, 81 S.Ct. 1639, 6 L.Ed.2d "/51 (19611. IT was the trial judge's responsibility to protect the accused trom inherently prejudicial publicity. The bite mark evidence can only be construed as positive identification, conclusive guilt. The preliminary reports were tnat the bite marks were inflicted by the accused. (K 8 - 1 2). Knowledge of such evidence through news channels could only leave the Jury panel witn guilt-prone tendencies. The most prejudicial bite mark accounts were ted to the public by the star witness?or prior to hearing; Sheppardv. MaxweZZ, supra, however substantial publicity regarding the bite mark analysis attended the The jurors who were familiar with the bite mark analysis were more infected than the juror facing a simple eyewitness identification. The bite mark identification has the infallibility of the neutral detached uninterested expert witness. The eyewitness is usually in an emotionally stressed situation, often the victim, therefore interested. Everyone in ordinary life hds second guessed themselves by blowing their horn at a friend, who turned out to be stranger. Eyewitnesses therefore lack the cloak of infallibility perceived by lay persons as shrouding the expert.
It is submitted that the bite mark publicity impermissibly reached the trial jury, and violated the defendant's right to a fair trial.
THE FAILURE OF THE COURT TO CONTROL THE
PERVASIVE PREJUDICIAL PUBLICITY DENIED
DEFENDANT HIS CONSTITUTIONAL RIGHT TO BE
TRIED IN THE COUNTY WHERE THE OFFENSE WAS
COMMITTED, Art I, S16, Fla, Const. (1968) Since 1885, the Florida Constitution has guaran-eed to persons accused of a crime "a speedy and public trial by impartial jury in the county where the crime was committed."
Fla, Const. (1885). That guaranty is a legacy of the jurors' seventeenth century role, as witnesses to the disputed facts.
1 Holdsworth, History of English Law 156 (1908). Pluckett, T.F.T.; A Concise History of the Common Law, 5th ed, (Little, Brown & Co., Boston, MA. 1956), pp. 127-128.
Parliament's enactment of laws authorizing trial for reason in any county in England, which British authorities threatened to employ against recalcitrant colonbstsj, "was one of the grievances which led to separation of the American colonies from the British empire," SzJart ZI. KimbaZZ, 4 3 Mich. 443, 449, 5 N.W. 635, 638 (1880). Explicit guarantees of trial by a jury of the county or vicinage were therefore written into original constitutions of Maryland, Massachusetts, New Hampshire, Virginia, Pennsylvania and Georgia, Murphy v. Supreme Court, ~ 9 1 161 A.L.R. 937, 946 (1945). The local constituency of the jury was thought to be so fundamental that it was held to be implied in the right of jury trial itself. Swart 21. KimbaZ.2, supra, at 637.
The Florida Supreme Court's first interpretatiorl of the guarantee of the 1885 Constitution was entirely consistent with the deep concern displayed by the colonists, Hue<tt v. State, 4 3 Pla, 194, 3 0 SO. 795 (Fla. 1901). In Hewitt, the trial judge exhausted a venire of 125 persons without obtaining a qualified jury, The Court in O ' Berryv.
State, 47 Fla. 75, 3 6 So. 440 (1904) reversed a trial court determination that it was impracticable to obtain a qualifie; juy in Osceola County. Defendant U ' Berry had allegedly committed cattle theft. Because his quilt or innocence had been widely debated during his candidacy for the legislature and had been the subject of public comment and litigation ina replevin action concerning the cat tie, w ' - kerry's trial for larceny of another animal had been generally discussed. All those facts, the Supreme Court held, did not demonstrate that a qualified jury could not be obtained rum tile more than 600 citizens of Osceola County who were eligible for jury duty:
Ji'i "The fact that it miqht have been difficult or I- 0 would have colisumed considerable time to have t r ' \ procured a qualified jury to have tried the + I defendant is not sufficient to warrant a change, 1. (I of venue, against the consent of defendant." \,(''L[,'?
OrBerryv. State, supraJ47 Fla. 86, 36 SO. 443;
see also Ward v " State, 328 So.2d 260 (Fla. 1st
DCA (1976).
In Ashzey. stake, 7 2 Fla. 137, 7 2 So. 647 i19j - 6) t the Court again reversed a trial court's order transfer ring a cause on grounds of the impracticability of obtaining a qualified jury and held:
ll...the matter should be tested in some way so as to make it clearly appear that it is practically impossible to obtain an impartial jury to try the accused in that county. " AshZey, supra, 72 Fla. 140-141; 7 2 So.
648. See also H<gginbotharn v. State, 88 Fla.
The means by which the impossibility of securing an impartial jury is to be determined, is implied from the very word "impossible," which here means "practically impossible" or "impossible asa practical matter." The term does not mean absolutely impossible, as would be implied by examining every resident of the county for jury service, only to find that six impartial persons cannot be found: but neither does the term "impossible" simply mean difficult, problematic, inconvenient, laborious, or frustrating. What is required is a showing that a jury cannot be secured by an exhaustive or preserving judicial effort. The way for the trial judge to determine that possibility or impossibility is to summon a venire, swear them, join with counsel in asking them questions bearing on their qualifications, and excuse both the impartial jurors and the evasive ones by exercising that skill of judgment which Justice Alderman described in Manning v. State, 378 So.2d 274, 279 (Fla. 1979) (dissenting opinion). Beckwith. State, 386 So.2d 836 (Fla.
1st DCA (1980), pee. for rev. den. 392 So.2d 1379.
Strong as the evidence was of the difficulty of the task, the impossibility of obtaining an impartial jury was not demonstrated by an exhaustive effort to select such a jury from among the citizens of Leon County. The court examined only 5 veniremen in open court, who were excused for cause suggesting partiality.
It is somewhat incongruous that a defendant argue a change of venue prejudiced his rights, But a defendant has not a constitutional right to a change of vcnuz, rather a tair trial by impartial jury in the county where the crime, was committed. florthv. State, 6 5 So.2d 77 (Fla. 19521, aff'd 341 U.S. 932. ward V. State, 328 So.2d 280 (Fla.
1st DCA (1976). Again the Court is confronted with the impact ing of First Amendment rights with Sixth Amendment rights.
Twenty-six per cent (2 6 %) of the pretrial proceedings totaling one thousand five hundred thirty-three (1533) pages of the record on appeal are devoted to pretrial publicity alone. News reports "Bundy's Teeth Match Bite on Girls' Body Expert Says (R333), "Bundy provides Dental samples"
(R 1042), "Experts Argue Bite Mark Merits" (R 1046), "Expert casts Doubt on Bite Mark Evidence" (R 1317), Bitemark Evidence Ruling Postponed (R 1320), Bundy Challenges Evidence from Bitemark Comparisons (R 1321), together with more than one hundred seventy-one (171) local pretrial news accounts (R 1069-1070), [not counting the final month] dictated a change of venue. BUNDY was literally driven out of town, not by a disruptive citizenry, but an uncontrolled media.
At some point the public curiosity, as opposed to the pualic's right to know, must be reconciled against the right of the defendant and the overriding interest in administration of justice. The media in the BUNDY case controlled the docket, not the trial judge. The media changed the venue, not the defendant. The expense has prompted new bills in the legis - nature, but cannot amend or revive the prejudice to Defendant. The defense was sever&ly prejudiced by the distance between the trial and critical bitemark photographs and witnesses (R 9590, 9830, 9990) which were not timely produced
(R9590) and which would have been admitted if timely presented (R 9990-9998). The prejudice is real and actual, and the case should be reversed fora new trial in Leon County.
THE USE OF HYPNOTICALLY REFRESHED EYE-
WITNESS TESTIMONY VIOLATED DEFENDANT'S
RIGHTTO CONSTITUTIONALLY FAIR TRIAL
On 23 January 1978, police hypnotist Dr. Julian Arroyo and Leon County Sheriff Ken Katsaris conducted a hypnotic session with state's witness Nita Neary. (R 6435).
During that session Ms. Neary provided several details that her previous interviews with police officers did not reveal.
Particularly, she described eyebrows and the hair color of the man she saw at the Chi Omega house on the night of the crimes. (R 6033-6034, 6452-6455). The characteristics of hypnosis in general and of Ms. Neary's hypnotic session in particular render her hypnotically refreshed testimony so unreliable and tainted with suggestion as to be inadmissible to establish the identity of the assailant.
A.2d 302 (C. Spec. App., Md. 1968); State. Jorgenson, 492 P.2d 312 (Oreg. 1st Ct.App. 1971); State. McQueen, 244 S.E.2d 414 (N.C. 1978) and in the 9th Cir,, WyZZer v. Fair - child Hiller Corp., 503F.2d 506 (9th Cir. 1974); Kline v.
FordMotor Co., 523F.2d 1067 (9th Cir. 1975); U.S. v.
Adams, 581F. 2 d 193 (9th Cir. 1978); U.S. v. Awkard, 597 F.
2d 667 (9th Cir. 1979). It is of note, however, that of these case decisions only Hardingv. Maryland, 246A.2d at 311-312, discussed the reZiabiZity of hypnosis asa means of refreshing a witness' memory. "Science has not recognized the possibility that memory of painful events can sometime be restored by hypnosis." It cau tions however, that "some authorities warn that fancy can be ming led with fact in these cases.'.' Hardingv. MaryZand, supra, 246 A.2d 311-312.
The CZark decision did not discuss the threshold Fla.
issue, raised in Coppozino. State, 223 So.2d 68 ad Dca 19681, that scientific evidence must be recognized and accepted in the scientific community before it is admissible in court.
See also; Frye. U.S., 293F.1013 (D.C.Cir. 1924); Kcrrninski
The courts which have discussed its character and function, have held hypnosis and its fruit inadmissible for purposes of identification in criminal trials when the hypnosis procedure itself is unduly suggestive. PeopZe v.
Smrekar, 385 N.E.2d 8218 (111.App. 1929). See also, U.S. v, Adams, 581 F.2d 193 at 198 (9th Cir. 1978); Merrifieldv.
State, 400 N.E.2d 146 (Ind. 1980); State. Mack, 292 N.W.
2d 764 (Minn. 1980); Commonwealth of Pennsylvania v. Yazaroviteh, 436 A.2d 170 (Penn. 1981); State ZI. Hurd, 432 A.2d 86 (N.J.
(1981); State. Menu, 624P.2d 1274 (Maria. (1981). The increased legal awareness of the limitations of hypnotically refreshed testimony is based on several factors.
Central to the unreliability of hypnotically refreshed testimony is the phenomenon of confabulation. The term "confabulation" denotes the tendency of a hypnotized person to fill gaps in memory with fantasies and suggestions implanted by the hypnotist, creating memory where there was none. CommonweaZthv. Nazarovitch, supra, 436 A.2d 170 at 174; State. Hurd, supra, 432 A.2d 8 6 at 92; State.
Mack, supra, 292N.W.2d 764 at 769; Neil J. Dilloff 8 3;
"The admissibility of Hypnotically Influenced Testimony," 4 Ohio N.E. L.Rev. 1 at 4-5 (1977); Kevin L. Pelanda "The Probative Value of Testimony from Hypnotically Refreshed Recollection" 14 Akron L.Rev. 609 at 619 (1981). Several characteristics of thd hypnotic state explain this phenomenon.
Hypnosis beverly diminished the subject's critical faculties and increases his or her tolerance for persistent reality distribution. State. Hurd, Suppa, 432 A.2d at 90-93. At the same time, hypnosis instills in the subject a desire to conform to the hypnotist's expectations. Pelanda, supra, at
620. Robert. Spector and Terle E. Foster, "Admissibility of Hypnotic Statements; is the Law of Evidence Susceptible."
State. Mack, supra, 292N.W.2d at 770. Asa result, the subject will alter or fabricate memories ina subconscious attempt to respond to the hypnotist's requests for specific information, which stems from the tendency of hypnotic subjects to take instruction literally. Spector and Foster, supra, at 572.
Bernard I;. Diamond, Professor of Law at University of California, Berkeley, and Clinical Professor of Psychiatry at University of California, San Francisco, provides a vivid illustration of the subject's literal response. Hypnotic subjects were instructed to imagine themselves ten years in the future and asked to describe their surroundings. The subjects related what they imagined they saw in minute detail even though they had never actually experienced these perceptions, Bernard L. Diamond "Inherent Problems on the Use of Pretrial Hypnosis on Prospective Witness,: 68 Ca1.L.
Rev. 313 at 337 - 8 (1980). The obvious danger of fantasy and fact intermingling thus casts serious doubt on the reliability of hypnotically refreshed testimony.
In the case at bar, the danger is significantly enhanced by the circumstances of Nita Neary's hypnosis. As has been discussed, the hypnotic subject is both extremely suggestive and desirous to conform to the hypnotist' expectations, which increased the probability that the subject, in her eager ness to fulfill the role expected of her, subconsciously created details where none were remembered.
Judges and legal scholars have emphasized the need for neutrality in the hypnotic setting and have proposed procedural guidelines which would help assure it. State ZI. Hurd, supra, 432 A.2d at 96-97; State. Mack, supra, 292 N.W.2d at 770;
Pelanda, supra, at 623, 627, 628; DilQff, supra, at 8;
Spector and Foster, supra, at592. Unfortunately, Dr. Arroyo failed to follow a number of these guidelines.
The holding of the hypnotic session in the state attorney's office compromised the neutrality of the procedure.
Many authorities have held location of hypnosis to be one factor in determining whether the methods used were unduly suggestive. State. Mack, sup7a, 292 N.W.2d at 770; Pelanda supra, at 627; Spector and Foster, supya, at 594. The presence of law enforcement personnel has also been held prejudicial to the procure ment of reliable results fma hypnotic session. State, Hurd, suppa, 432 A.2d at 96-97; State.
Mack, supra, 292 N.W.2d at 772; Pelanda, supra, at623, 627.
Nevertheless, Leon County Sheriff Ken Katsaris was in the room with Dr. Arroyo during Ms. Neary's hypnosis session (R 9351). Finally, judges and legal experts who have proposed procedural safeguards for hypnosis sessions suggest that the hypnotist himself be, independent and unbiased. During hypnosis, Dr. Arroyo introduced himself to Ms. Neary as "Special Deputy Sheriff, Hillsborough County" (R 6448). Id. Dilloff, supra, at 8. The concern over the hypnotist's affiliation stems not only from the cues, conscious or unconscious, which the hypnotist may give the subject, but also from the tendency of the subject to adopt a role and carry on the sophisticated psychological activities associated with that role. Diamond, supra, at 316. In the instant case, the character of the session cast Ms. Neary in the role of a police witness, whose function was not to describe what she remembered, but to fashion description of the suspect. (See, (R 6469-70). The testimony of Dr. Kuypers regarding the hypnotic session illustrates the point. Dr. Arroyo made a number of inappropriate suggestions that he, not she, was in command of her actions (R 6444- 6445, 6447, 6450, 6463, 6469-6470, 6485). He used a postural sway test to implant the suggestion that he could make her perform an act no matter how hard she resisted. With the establishment of this master-servant relationship within the hypnotic setting (R 64441, Dr. Arroyo then contradicted Ms.
Neary's own assertion that she was confused (R 6460-61). He commanded her to produce an image of eyebrows, telling her to "never mind what [you] remember" (R 6462). He further declared that Ms. Neary would "make a good composite" and that she would never forget "the fact she was commanded to remember" (R 6469-70). Given the hypnotic subject's desire to please the hypnotist and conform to his expectations, Dr. Arroyo's repeated suggestions that Ms. Neary produce a desired response exacerbated the risk that she would experience positive hallucination in an effort to perform as expected. State, Mack, supra, 242 N, W.2d at 768; Dilloff, supra, at 8; Spector and Foster, supra, at 592. DR, l Arroyo repeatedly made clear suggestions that Ms. Neary describe hair, when there is evidence to indicate that Ms. Neary never actually saw any (R 6469-70), eyebrows, shoes, and facial features. (R 6454, 6460, 6462, The combined effect of Dr. Arroyo's suggestions, the inherently suggestive hypnotic setting and the heightened suggestibility of the hypnotized subject caused such confabulation and positive hallucination (R 6489, 6491) that the results of her testimony are so unreliable (R6504, 65061 as to be inadmissible. SeeStatev. Hurd, supra, 432A.2d at 73:
Diamond, supra, at 340.
To this environment of uncertainty, the hypnotic process adds the element of prejudice. The witness came out of the hypnotic session unshakable convinced of the spontaneity and reliability of her "memory" and totally unaware of the distortion or confabulation which took place during her hypnotic session. CommonweaZthv. Nazarovitch, supra, 436 A.
2d at 174-176; Pelanda, SUPPU, at 621; Diamond, supzla, at 336; Dilloff, supra, at 4; Spector and Foster, supra, at
585. The subject's inability to distinguish fact from fantasy worked with her desire to conform to perceived expectations and to rationalize hypnotic suggestion. State. Hurd, supra, 432 A. 2 d at 97; State. Menu, supra, 624 P.2d at 1277;
State. Mack, supra, 292 N.W.2d at 769; Pelanda, supra, at 620; Diamond, supra, at 314, 333-5, 337-8; Spector and Foster, supra, at 572, 577. The act of verbalization during hypnosis cemented the perception in the subject's mind, even more firmly entrenching her conviction in the truth of her story. Spector and Foster, supra, at 592. U.S. v. Wade, 388W.S. 218 (1967), held this factor to be inimical to the defendant"s interest ina fair trial.
"It is a matter of common experience tnat, once a witness has picked out the accused at a lineup he is not likely to go back on his word later on. So that in practice the issue of identity may.
.. for all practical purposes be determined there and then, before trial." U. S. v. Wade, supra, 388 Jurors accord undue weight to hypnotically refreshed testimony. Jurors judge the credibility of a witness by their demeanor. Jurors see the witness' hypnotically refreshed testimoriy uttered with absolute conviction without realizing that the certainty sprang not from actual perception but from the hypnotic process. State. Menu, supra, 624P.2d at 1278-9; CornmonueaZth v. Nazarovitch, supra, 436
A.2d at 176; State. Hurd, supra, 432A.2d at 9 4; State (2).
Mack, supra, 292 N.W.2d at 769; Diamond, supra, at 339-40;
Dilloff, supra, at 9; Spector and Foster, supra, at 593.
Jurors also accord special truth telling powers to the hypnotic process. Pelanda, supm, at 630; Spector and Foster, supra. at 4594-5. The crucial issue does not involve the witness, but the jury's faith ina "scientific" procedure.
The distinction made in Clark. State, supra, 379 So.2d 372 at 375, between hypnotically induced and hypnotically enhanced testimony is not viable. See, State II.
Scientific evidence is likely to be shrouded by jurors with an aura of near infallibility, akin to the ancient oracle of Delhi.
I'.,. present day jurors, despite their sophistication and increased educational capacities, are still likely to give sign ifi cant, if not conclusive weight [to scientific evidence]. I ' U.S. v. Alexander, U.S. v. Brown, 557 F.2d 541 (6their. 1977), addressed another facet of the same problem. "Because of its apparent objectivity an opinion that claims a scientific basis is apt to carry an undue weight with the trier of fact." U.S. v. Brown, The hypnosis of Nita Neary created a situation rite with the danger of unreliability and prejudice. Hypnosis imbued the subject with absolute faith in the truth of her "recollections." Ms. Neary's hypnosis effectively prevented the jury from evaluating her credibility on the basis of demeanor, since, after hypnosis, no way existed to determine whether her certainty was genuine OK merely the fruit ofposthypnotic suggestion, as hypnotic subjects subconsciously rationalize explanations to fabricate a factual basis for suggestions implanted during hypnosis. Ms. Neary's hypnosis session foreclosed any legitimate opportunity the jury might have had to judge the trial reliability of her testimony since after hypnosis, no determinative evaluation could be made of whether the consistency of her testimony resulted from accurate perception or from hypnotically induced confabulation.
Finally, by testifying that her testimony had been refreshed by hypnosis, Nita Neary linked her testimony to the mysterious scientific process commonly (but mistakenly) held to have truth compelling powers, By rendering unassertainable so many of the traditional indicia of veracity, the use of hypnotically refreshed testimony effectively preempted the jury from performing its role as trier of fact. SeeU.S. u. Bmm, supra, 557 F.2d at 556.
A growing body of case law supports the exclusion of hypnotically refreshed testimony. The defendant's counsel moved to exclude Nita Neary's testimony on grounds of hypnotic taint (R 673-675), and the only expert qualified to testify concerning the reliability of her testimony expressed unpreserved doubts as to its veracity relating an almost encyclopedia account of the improper suggestiveness of the whole session, (R 6426-6508). Even if hypnosis was per se reliable and admissible, the specific abuses cited by Dr. Kuypers' testimony would warrant exclusion of Ms. Neary's testimony.
The CZark decision emphasized that the hypnotist was alone with the subject. With Ms. Neary, the high sheriff was present, and in fact participated (R 6442). The CZ ark court made point of the hypnotist's representation to the witness that he had no knowledge of the case. No such representation was made by Dr. Arroyo, indeed Sheriff Katsaris' presence and the fact that "Special Deputy" Dr. Arroyo interviewed several other witnesses (R 6435) indicated that the hypnotist had extensive knowledge of the case, which gave rise to a heightened risk of suggestiveness in the hypnotic session. The nature of the hypnotic process and the suggestiveness of Dr. Arroyo's interview with Ms. Neary rendered her testimony completely unreliable and thus of no probative force. The gross prejudice resulting from her admission to the jury of being hypnotized makes it clear that her testimony should have been excluded at trial, and making a new trial justified.
THE IN-COURT IDENTIFICATION BY NITA NEARY
WAS THE FRUIT OF IMPROPER IDENTIFICATION
PROCEDURES AND WAS INADMISSIBLE ASA MATTER
OF LAW WHICH DENIED DEFENDANT A FAIR TRIAL.
The standard regarding the admissibility of identification testimony has focused on the reliability of the identification procedure used by the police. Manson u.
the desire to avoid the substantial likelihood of misidentification. Grant. State, 390 So.2d 341 at 343 (Fla. 1980);
the witness retains the false image rather: than that of the person actually seen, thus making the error irremedial.
Simmons 2 1. U.S., supra, 390U.S. 384. The suggestiveness of an identification is weighed against the probability of a high degree of accuracy. Manson. Brathwaite, supra, 432 U.S. 110. A two-pranged test has developed. The court must
(1) determine whether the identification procedure used was unnecessarily suggestive. If the court so finds, then it must (2) determine, considering the totality of the circumstances, whether the suggestive procedure gives rise to a substantial likelihood of irreparable misidentification, NeiZv. Biggers, supra, 409 U.S. 199; Kirby. Illinois, 406 U.S. 682 at 692 (19721. The IVeiZ court listed five factors to be considered in deciding the issue of likelihood of misidentification:
1. The opportunity of the witness to view the criminal at the time of the crime"
2. The witness degree of attention.
3. The witness' prior description of the criminal.
4. The level of certainty demonstrated by the witness at the confrontation.
5. The length of time between the crime and the confrontation. Neiz z1. Biggers, supra, 409 U.S. 199-200.
The evaluation of suggestiveness of an identification procedure must be made witha view toward the totality of the circumstances, considering each case on its own facts.
Simmons v. U.S., 390 U. S. at 384; StovaZZ D. Denno, 388U.S.
302 (1967). Making the determination necessitates discussion of the circumstances under which witness Nita Neary identified TED BUNDY as the man she allegedly saw leaving the Chi Omega house on the night of the crimes.
Within ten days of the incident Ms. Neary was hypnotized in the State Attorney's office by a police hypnotist.
The hypnosis session was so suggestive and unreliable as to cast serious doubt on the probative value of her subsequent testimony. Ms. Neary's opportunity to view BUNDY at his Tallahassee trial (R 6050) heightened the probability that his visage would be associated with the man she allegedly saw on 15 Jan 1978. It is beyond dispute that the in-court showup organized by the trial judge (R605L), tainted by the previous in-court show-up at the October trial, made more suggestive by location at the counsel table (R 6053), was unduly, unreasonably and unconstitutionally, suggestive.
A more egregious incident of the prosecution's unnecessarily suggestive ID procedure was the photo array which occurred in Muncie, Indiana on 7 April 1978. Captain Poitinger admitted knowledge of Ms. Neary's limited opportunity to view the assailant, BUNDY had been in custody for nearlytmmths before any kind of identification procedure took place (R 6013).
During this time Ms. Neary has seen a number of pictures of BUNDY in the media (R 6132, 6407), some of them with his head slightly turned to the side (R5949 - 5 0). The suggestion was created when the pictures shown Ms. Neary at the array were profile shots (R5946). In addition, Captain Poitinger discussed with Ms. Neary the existence of the prime suspect (R5949) and soon thereafter asked, as he displayed the photographs "If there's one there that resembles * hat suspec'tplease let me know" (R5950) [emphasis added].
The chief evil to be avoided in pretrial identification procedures is the substantial risk of misidentification. Neil 0. Biggers, supra, 409 U.S. 7-98; Simmons v.
U.S., supra, 390 U. S. 353-384. In Manson. Brathwaite, supra, 432 U.S. 111, Justice Blackman discussed the problems of unreliability posed by identification procedures. In citing with approval, U.S. ex reZ. Kirby. Sturgis, 510 F.2d 397 (7th Cir. 19751, the court noted that less reliable identification procedures and their fruits should be excluded "unless the prosecution can justify his failure to use a more reliable procedure." Kirby, supra, 510 F.2d 405. Captain Poitinger made the photo array unnecessarily suggestive by making inappropriate references to the 'suspect,"by waiting almost two months until he instituted any kind of identification procedure, and by covering part of BUNDY'S photo and suggesting that Ms. Neary imagine a toboggan cap on it (R The only excuse offered by the agent for failure to use the more reliable lineup procedure ina case of such magnitude was "administrative convenience" and the "avoidance of procedural delay" (R 6009). Captain Poitingex's concerns do not reflect the urgency that has excused such less reliable identification procedures in case law history, e. g., Stove22v. Denno, (dying witness); s; v. u.s., ~ ~ ~ identi- (prompt ~ ~ fication required to capture a fugitive suspect); Neil.
Each of these cases except Judd was a rape case in which the victim had a clear opportunity to view the assailant and in which a high degree of attention was assured. As the United States Supreme Court noted in Neil, supra, 409U.S. 200, the witness "was no casual observer, but rather the victimof one of the most personally humiliating of all crimes." These guarantees of reliability do not inhere in Ms. Neary's testimony, who caught but a brief glimpse of a man leaving the Chi Omega house (R 6034). Her view was not even of a complete profile, but an oblique profile. (R 6082). A court could not expect of her a high degree of attention nor an accurate perception of the events of 15 January 1978. She did not suspect any foul play until sometime after the man left the buss.
(R 6076). She was coming down witha cold (R6067) " and stayed for seven (7) hours data fraternity party at which she was drinking alcohol (R 6025, 6060). Ms. Neary's entire tes - timony is based on a brief, obscured glimpse of a person whom she believed to be a man, made when she was tired, sick and had consumed alcohol. On the basis of these factors, there was no reason to accord threshold reliability to her observations.
The Court must also consider the accuracy of her description. The inconsistencies in Ms. Neary's statements call this into question. Prior to the hypnosis session, Ms.
Neary described the assailant asa light complected man about 5'8" in height. (R 6274). At trial, however, she described a dark complexioned man about 5'10" or 5'11". Whether either one of these descriptions happens to be an accurate description of the defendant is irrelevant. At issue on appeal is the accuracy of the witness' recall. Any witness can enhance the probability that they will accurately describe a suspect by submitting several different descriptions. Such a " shot - gun approach" to suspect identification does not assist (and in fact works against) the determination of Ms. Neary's reliability. Any correlation that might exist in one of the two descriptions does not support a finding of the reliability of her testimony.
In BUNDY'S case, the issue of the witness' level of certainty cannot be considered independently of the length of time that elapsed between initial viewing of the alleged assailant and confrontation. AT trial, Ms. Neary was ''certain" of her identification of BUNDY (R 6056). Her resolute certainty did not exist, however, at the initial view of the alleged assailant, when she thought that the man at the doorway Ronnie Ens, the sorority houseboy. (R 6035). The events of the subsequent two months did much to alter her sense of certainty. A lapse of two months between a witness of the event and identification may not ordinarily arouse the court's suspicion. SEE lVeiZ v. Biggers, supwJ 409 U.S. 188 (lapse of seven months). However, two months was sufficient time to subject Ms. Neary's memory to distortion by hypnosis. The air waves and newspapers were filled with pictures of BUNDY and sensational accounts of the crimes for which he was suspected, some of which Ms. Neary had knowledge before the photo array
(R 6132, 6Q47). Her view of BUNDY at the October trial in Tallahassee (R 6050) insured what was already a forgone conclusion. The history of the BUNDY identification contains incident upon incident each of which created the unreasonable risk of the evil addressed in Baxter 71. State, supra, 355 So.
2d 1234 (Fla. 2d DCA 1978), at 1238, that "the witness has lost or abandoned his or her mental image of the offender: and has adopted the identity suggested".
The due process clause of the Fifth and Fourteenth Amendments forbids an identification procedure which is so unnecessarily suggestive that it creates the substantial likelihood of irreparably mistaken identification. Mansmi v. Brath- (19771, at 218; Neil. Biggers, supra, 409 U.S. 198; Kirby. Illinois, supra, 406 U.S. 691; Smith v. State, supra, 362 So.2d 420; Baxter v. State, supra, 355 So.2d 1237. Because of the absence of any indicia of reliability, the unnecessary suggestiveness of the identification procedures used in BUNDY'S case violate his Fifth and Fourteenth Amendment right to a fair trial. Since BUNDY'S conviction rests upon unduly suggestive identification evidence, the judgment should be reversed., or in the alterna>tive the evidence suppressed (stricken).
COUNTS 1 THROUGH V AND COUNTS VI AND VII
mRE IMPROPERLY JOINED AND REFUSAL TO
GRANT DEFENDANT'SMOTION TO SEVER COUNTS
I THROUGH V FROM COUNTS VI AND VII RE-
SULTED INA DENIAL OF DEFENDANT'S RIGHT
TO FAIR TRIAL GUARANTEED BY ART. I S16,
FLORIDA CONSTITUTION AND UNITED STATES
CONSTITUTION, AMENDMENT VI AND XIV.
1. Joinder It is a fundamental principle of law in Florida that separate and distinct crimes cannot be tried together.
In the instant prosecution, not only were the bases for Counts I through V separate and distinct from Counts VI and VII, but evidence from Counts I through V would have been irrelevant and inadmissible, under WiZZiams, ina separate trial on these counts. The crimes were factually distinct and separate, and should have been severed under Rule 3.152 (a)(l), F1a.R.Crim.P..
A comparison of the " Chi Omega" and "Dunwoody" crimes yields only the following similarities according to the prosecutor: (1) the victims in each instance were young white women (R7060); (2) each victim was battered with some object (R 7061); (3) the crimes occurred on 15 January 1978 (R 7060) and; (4) all were asleep in bed (R 7061). There are distinct differences in several areas of cornparison between the two episodew. The Chi Omega situs was a large sorority house, while the Dunwoody residence was a duplex housing only one person to a unit. The Dunwoody residence was "two miles" (R 7360) from the Chi Omega sorority house. The two episodes were hours apart (Chi Omega at approximately 2: 30 A.M. [ R 60651 and Dunwoody at approximately 4: OOA. M. [R 73291 etseq.). Cf. U.S.
The cause of death of two of the victims at the Chi Omega sorority house was strangulation; there was no evidence of strangulation at Dunwoody; at the Chi Omega house ass - pet was seen witha possible weapon in hand, while at Dunwoody no suspect was seen and no weapon ever found; at Dunwoody some signs of forced entry were found, while no sure point of entry was ever determined at the Chi Omega house.
The only major connection between these two events was the allegation that the Appellant was the perpetrator.
The case law applicable holds that there must be more in common between the events than a few similarities, and the mere allegation that Appellant committed both acts. BradZey v.
State, 378 So.2d 870, 872 (Fla. 2d DCA 1979); Paul. State, WiZZiams rule evidence is discussed.
In Bradleyv. State, supra, 378 So.2d 970, three burglaries were committed in the same neighborhood within two weeks. Entry was made in the same manner, and similar "fabric mark" evidence was found in each case yet the court held the crimes not similar enough to be admitted as WrSZZiams rule evidence. BradZeyv. State, supra, 872. If evidence of a crime is not sufficiently similar under WiZZiams to be admissible in a trial on another charge, then the crime is not properly joined with the collateral crime ina single trial. The assertion creates a test for joinder. At the low end of this test scale would be the WiZZiams rule evidence: minimally similar, but used to establish identity, common plan, etc.; WiZZiams rule evid nee would be admissible asa collateral crime ina single trial. Highest on the scale would be those crimes that are sufficiently similar and related to warrant joinder in that the crimes are almost identical; exactly the same place or point in time, or continuously executed in the same transaction. At a median point would be those crimes that are not identical, but so similar or related that they could be charged together and tried together. Appellant asserts, that not only did the state fail to meet this median test for joinder, but that at separate trials the two episodes would have been inadmissible asa collateral matter under WiZZiams. Failure to meet the minimum standard leads to the conclusion that the charges were improperly joined, and the defendant's Motion to Sever (R 429, 1442-1443) should have been granted.
Dennis, 625 F.2d 782, 802 (8th Cir. 1980)], prejudice is necessarily created asa result of the jury hearing evidence of two separate and distinct crimes. US. v. Bu-Lz, supra, 540 F.2d 736.
The court stated that two crimes may be joined under Rule 8, Fed.R.Crim.P., if they are: (1) of the same or similar character; (2) based on the same transaction; or (3) based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. U.S. z). Foutz, supra, 540F.2d 736. In the Foutz prosecution, as in the BUNDY prosecution, the two crimes were joined together because of alleged similarity. U.S. ZI. Foutz, supra, 540F.2d 736 (R 7059). The Foutz court held that a severance under Rule 14, Fed.R.Crim.P., is justified when prejudice arises. U.S. Q. Foutz, supra, 540 F.
2d 736. The prejudice from joinder may take any af three forms:
(1) the jury may confuse and cumulate the evidence, and convict the defendant of one or both crimes when it would not convict him of either if it could keep the evidence properlysegrqated;
(2) the defendant may be con founded in presenting defenses as where he desires to assert his privilege against self-incrimination with respect to one crime but not the other; or (3) the jury may conclude that the defendant is guilty of onecrh and then find him guilty of the other because of his criminal disposition. U.S. v. Foutz, supra, 540 F.2d 736.
In the BUNDY prosecution, the preponderance of the evidence went to proving the Chi Omega crimes. The joinder of the Chi Omega and the Dunwoody crimes served only toconvenience the State and created the three types of prejudice present in the Foutz case. Foutz held that the jury will necessarily consider one crime while considering the defendant's guilt or innocence of another. U.S. v. Foutz, supra, 540 F.2d 736. Dreu
v. U.S., 331 F.2d 8 5, 89-90 (D.C. Cir. 1964). Admissibility of other crimes, (WiZZiams rule) is strictly limited. The evidence cannot be used to show defendant's criminal disposition. U.S. v. Foutz, supra, 540 F.2d 736. The probative value must outweigh the certain prejudice that evidence of other crimes carries with it. U.S, z'. Foutz, supra, 540 F.
2d 736. In Florida, and in the federal courts, the test is whether the evidence of one crime is admissible at trial for another crime. If it is not admissible, then the defendant would be prejudiced by a joinder of the two crimes. U.S. v.
Foutz, supra, 540 F.2d 736; U.S. z', WiZZairnson, 482 F.2d 508, 511 (5th Cir. 1973); WiZZiams zr. state, supra, 110 SO.
2d 654 (Fla. 1959).
If the WiZtiarns standard is applied to the facts and evidence of the BUNDY prosecution, the Chi Omega evidence would not be admitted ina trial for the Dunwoody crimes and vice-versa. Foutz states further, that when crimes are joined only because they are "similar." admissibility at separate trials is less likely than if they are part of a cornon "plan, scheme, or purpose.I' U.S. 71. Foutx, supra, 540 F.2d 737. The BUNDY prosecutor alleged only facts that would show similarity between the Chi Omega crimes and the Dunwoody crimes. (R 7060).
Thus, even if the crimes were similar, they were severally inadmissible ina separate trial under the WiZZiams rule. According to Foutx if the evidence of two crimes is not admissible ina separate trial for the other, the joinder of the two creates prejudice to the defendant resulting ina misjoinder under Rule8, Fed.R.Crim.P., U. S. v. Foutz, supra, The court has ruled in U.S. z1, Grace, 504F.2d 411, 413 (3d Cir. 1974) that misjoinder is not harmless error.
The court in the BUNDY prosecution should have granted defendant's Motion to Sever because the joinder of the Dunwoody episodes and the Chi Omega episodes resulted in prejudice to the defendant and seriously impaired his right to a free and impartial determination of guilt or innocence on each charge.
In AshZey v. State, 265 So.2d 685 (Fla. 19721, the court refused to grant a motion for consolidation ina case factually similar to the instant case. AshZey involved two episodes, one of four murders and another of one murder.
Ashley ZI. State, supra, 265 So.2d 687. The first episode involved four killings: one immediately after another; at the same location; during the same transaction; and all were based upon the same evidence. The second episode involved one murder: an hour earlier than the other four; factually distinguishable from the four subsequent murders; at a different location; and it was based upon separate evidence.
The court held that since the single murder was committed an hour earlier and ina different location, they were not properly joined because they were not part of the same trmsactian.
AshZey V. State, supra, 265 So.2d 689.
An application of the AshZey criteria to the BUNDY prosecution yields a similar result. The murders and batteries at the Chi Omega sorority house were in close proximity in time and space while the single battery at the Dunwoody residence was two miles (R 7360) and at least an hour later in time. Under the AshZey criteria, the severance should have been granted because the two episodes were not the subject far proper joinder under Rule 2.150, F1a.R.Crim.P.
In Rubin ZI. State, 407 So.2d 961 (Fla. 4th DCA 1982) nine sexual batteries, a11 factually similar, but occurring over a period of weeks, could not be joined because they were separate and distinct. IN contrast, Moore u. State, 259 So.
2d (Fla. 3d DCA 1972), held that joinder was proper because of strong linking evidence between two crimes. The Moore facts showed: (1) that eyewitnesses identified two black males [the defendants] riding ina white car; (2) a man with a gun robbed or attempted to rob the victims; (3) all the robberies occurred on the same night within fifteen minutes.
Moore v. State, supra, 259 So.2d 180. In the BUNDY prosecution, there was an absence of strong linking evidence; no common eyewitness, no cornon weapon, and period of time much greater than that of the Moore case. The facts in BUNDY do not rise to the level of Moore and do not meet the minimum standard for joint trial.
The facts inthe BUNDY prosecution should have led the trial court to infer separate and distinct episodes calling for severance in order to preserve appellant's Constitutional right to a fair and impartial trial. U.S. Const., Amend. V, as applied to the State of Florida through U.S. Const. Amend.
XIV; and Art. I S9, Fla. Const.
THE JURY SELECTION PROCESS VIO -
LATED THE WITHERSPOON DOCTRINE
S.Ct, 1710, 20L.Ed.2d 6, established that a defendant's right under the Sixth and Fourteenth Amendments to a jury which represents a true cross-section of society forbids the automatic exclusion of veniremen who have strong moral or ethical objections to capital punishment, A prospective juror may be excluded from service only when he or she is "irrevocably committed, before the trial has begun to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. " Witherspoon. Illinois, 391 U. S. 5110, 522n.21.
The Supreme Court, by way of delineation, speci fied that trialcourt may honora challenge for cause in such cases only when the veniremen make unmistakably clear (1) that they would mtomtically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.
The subsequent cases BouZden v. HoZrnan, 394U.S.
478 (1969) and MaxweZZ v. Bishop, 398 U, S. 262 (1970), 90S.Ct, 1578, 26 L.Ed.2d 646 folded the Witherspoon rule, invalidating excusals based on fixed opinions or conscientious scruples against imposing the death penalty. The Witherspoon doctrine was further buttressed by the decision Davis v.
In apercur < am opinion, the Court held that the exclusion of a single venireman in violation of the Witherspoon rule would suffice to defeat a death sentence, without regard to whether the defense had unused peremptory challenges. In 2d 973, the Court applied the W < therspoon standard to deny habeas corpus relief. The Locket decision, however, noted that the veniremen had admitted to the trial judge that their conviction against capital punishment was so strong that they were unable to take an oath to follow the law, knowing that it might result in the imposition of the death penalty.
Read together, the cases indicate that a single excusal of a venireman for less than a full two pronged disposition constitutes grounds for reversal from a jury-imposed death sentence. Two such improper excusals occurred in BUNDY'S case, both involving violation of the second prong of the Witherspoon case.
The first instance occured during the voir dire of potential juror Westbrook (R 4264-4274). According to Witherspoon:
"The critical question, of course, is not how the phrases employed in this area have been construed by the courts and commentators. What matters is haw they might be understood or misunderstood by prospective jurors" Witherspoon. Izzinois, suppa, On vodr dire, Ms. Westbrook expressed reserved about the possibility of inflicting the death penalty (R4267 - 4268).
Counsel addressed the potential Witherspoon problem by hi - tiating the following dialogue:
MR. HAGGARD: Could you put aside any problem you might have about imposing a death judgment on Mr. Bundy and simply determine the issue as to whether he committed the crime?
MISS WESTBROOK: I really don't know.
MR. HAGGARD: You really what?
MISS WESTBROOK: At the time I really don't, you know. You know, I can't explain it or say it, but I think I could.
MR. HAGGARD: You think you could?
MISS WESTBROOK: Uh-huh.
MR. HAGGARD: Well, if, the State fails to prove that Ted Bundy committed the crime beyond and to the exclusion of a--every reasonable doubt, could you find him not guilty?
MISS WESTBROOK: Yes, I could. I think so.
MR. HAGGARD: Now, I'm sure Mr. McKeever will ask you will ask you, so I will ask you, if he proved beyond and to the exclusion of a every reasonable doubt that he committed the crime, could you find him guilty?
MISS WESTBROOK: Yes.
(R 4269-4270)
Counsel thus established that, notwithstanding her reticence to impose the death penalty, Ms. Westbrook could adequately fulfill her oath asa juror. The Supreme Court noted in Adams D. Texas, 100 S.Ct. 2521 (19801, that [Neither nervous ness emotional involvement nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or inability on the part of the jurors to follow the court's instructions and obey their oaths, regardless of their feelings about the death penalty. Adams v. Texas, supra, Unfortunately, counsel's subsequent attempts to ascertain that Ms. Westbrook understood thed'i'ff~~~: ncesbetween the functions of the two stages of the jury process met with repeated interruption (R4270 - 4273). The Court concluded the voir dire with this question THE COURT:...
[Would you be able& to return a verdict of first degree murder if the evidence warranted it knowing that that crime has a punishment, a possible punishment of death?
MISS WESTBROOK: No.
THE COURT: All right, The Court will excuse her for cause. (R4273 - 4274) By creating a strong suggestion that a sentence of death would ensue a finding of guilt, the court held that Ms. Westbrook could not perform her duties as juror unless she was willing to impose the death penalty if BUNDY was found guilty. As such, the court, who had the final word, obfuscated the issue that counsel had previously made clear, i.e., that Ms. Westbrook could consider BUNDY'S guilt Or innocence separately from the penalty issues.
The voir dire of venireman Constance (R 5386- 5395) presented similar problems, The potential juror was having extreme difficulty distinguishing the guilt determination phase of the jury process from the penalty phase (R 5393-5394). Again the trial judge cut short the voir dire with its line of question:
THE COURT: Would you be able to return a verdict of guilty of murder in the first degree, assuming that the evidence that yourfd found to be credible beyond and to the exclusion of a reasonable doubt, brought you to that conclusion, knowing that by that finding, you Mould be subjecting someone tothedeathpenalty.
(emphasis added) JUROR CONSTANCE: No sir, I don't believe so. (R 5394-5395) In neither instance did the Court establish that the venireman's attitudes regarding the death penalty would prevent them from making a fair and impartial decision as to the defendant's guilt. The Witherspoon court made it clear that a state may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death." Witherspoon. Illinois, supra, 391 U.S. at 521. A criminal defendant is entitled to have his case determined by a jury representing a cross section of the community. If the exclusion of a single venireman is in violation of the W<therspoon rule, the death penalty cannot stand. Davis v. Georgia, supra, 429 U.S. 123. Two veniremen were improperly excluded in BUNDY'S case. Therefore, under the principles Laid down in Witherspoon and its progeny BUNDY'S sentence should be vacated.
THE COURT ERRED IN DENYING DEFENDANT'S
CHALLENGE TO THE GRAND JURY AS "UNTIME-
LY AND THE FAILURE TO TIMELY APPOINT
COUNSEL DENIED DEFENDANT THE RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL
1. Right to Counsel On 18 July 1978, Assistant Public Defender Joe Nursey filed a series of motions challenging the Grand Jury, towit: "Motion to Inform Defendant of Grand Jury Proceedings," (R 705, 1079), "Motion for Temporary Restraining Order and Preliminary Injunction Restraining Grand Juries from Returning Indictment Against the Defendant" (R 709, 1083), "Challenge to the Grand Jury" (R 7111, 1085)- Judge Rudd denied the motions stating that (1) the grand jury could not be retroactively attacked, (2) the.defendant had no pre indictment right to counsel and (3) the public defender had no standing to make the motions. (SR 276-277, 285-286). Judge Rudd later reversed himself on the issue of BUNDY'S right to public defenderassistanceto argue the motions, (R 715).
Florida and federal law require that counsel be appointed to an indigent person "when he is formally charged with an offense, or as soon as feasible after custodial restraint or upon his first appearance before a committing magistrate whichever occurs earliest" F1a.R.Crim.P. 3.111(a).
Bscobedo v. Illinois, 378U.S. 428 (1964). The first question is whether BUNDY'S right to counsel ceased to exist between his custodial interrogation in Pensacola and his indictment in Tallahassee.
A survey of cases involving the right to counsel indicates a negative answer, The principle for permitting pre-trial access to counsel stems from the due process theory that denial of legal assistance at any stage in the prosecutorial process when a defendant's failure to assert rights or raise defenses would result ina permanent loss of those rights and defenses constitutes a violation of law, Gerstein
(1964) at 205; Whip-be v. Maryzand, 372U: S. 59, (1963) at 60.
HamiZ%on v. Alabama, 368U. S. 52, (1961) at 5 2; Michel V.
(1955). The majority of these cases, also hold that the "critical stage" of the prosecutorial process which triggers the right to counsel occurs after the commencement of adversary judicial criminal proceedings Id. See also Brewer.
BUNDY'S right to appointed counsel for the purpose of a grand jury challenge depends on two factors. First, did the grand jury challenge constitute an adversary judicial criminal proceeding. Second, did BUNDY lose any rights because he did not have counsel to timely assert them.
Both questions may clearly be answered in the affirmative, A grand jury proceeding is not itself an adversary proceeding, but the challenge to a grand jury is. See State exre2 Ashman v. WiZZiams, 151 So.2d 437 (Fla. 1963).
S905.05 Fla.Stat. provides that a defendant may challenge the grand jury only before impanelment, unless defendant did not know or have reasonable grounds to know that his case was being heard before the grand jury, Because he lacked counsel, BUNDY lost his primary right to challenge the grand jury. cf. State v. Lewis, 11 So.2d 337 (Fla. 1943). The pre-impaneled period constituted a critical stage of the proceedings which required the presence of counsel to preserve BUNDY'S right to challenge. Moore v. IlZino<s, 434 U.S. 220, at 225 (1977); Brewer (2). WiZZiams, suppa, 430 U. S.
at 398. Gerste < n v. Pugh, supra, 420U.S. at 123; United bama, supra, 399U.S. at 7; United States v. wade, supra, 388U.S. at 224-227; Massiah. United States, 377U.S. at 204-205; Whftev. Maryland, supra, 372U. S. at 60; Hamilton v. AZabama, supra, 368U. S. at 53-54; Reece V. Georgia, supra, 350U.S. at 08-89. Seay v. State, 206 So.2d 532 (Fla.
a A logical construction of law favors the pre impanelment appointment of counsel in capital cases.BUNDY'S indictment charged him with first degree murder, (R 1-4). Article I §15(a) of the Florida Constitution mandates that a grand jury return an indictment. Florida law further.grants the defendant the right to challenge the grand jury. SS905.
justifiably ignorant of the proceeding, may not challenge the grand jury after its impanelment. S905.05 Fla.Stat.
(1970). Finally, Florida and federal law guarantee indigent defendants the right to appoint counsel.
The atate argued that BUNDY'S right to counsel for purposes of grand jury challenge should not accrued until he was arrested, charged, or indicted with the offense being considered by the grand jury (SR 269-270)" This construction of law would give BUNDY the right to challenge the grand jury, but would deny him the opportunity, through appointed counsel, to exercise that right until it had been waived.
Statutes do not operate harmoniously together where,/the state has recommended, one statute grants legal right while another precludes its exercise. §§27.51(1)(a) Fla.Stat. provides the public defender shall represent persons ''under arrest for, or is ing grand jury challenges meaningful requires that counsel be appointed for this purpose before the right is lost because of impanelment.
Reece. Georgia, 350U.S. 85 (1955), involved a defendant who, like BUNDY, was prevented from challenging the grand jury before impanelment because he was not charged with any crime until after his indictment. Reversing Reece's conviction, the court held that "the right to object to a grant jury presupposes an opportunity to exercise that right." Reece. Georgia, supra, 350 U.S. at 8 4, The Court further stated that "it is utterly unrealistic to say that he had such an opportunity when counsel was not provided for him until the day after he was indicted. In PoweZZv.
State of Alabama, (citation omitted) this Court held that the assignment of counsel ina state prosecution at such time and under such circumstances as to preclude the giving of effective aid in the preparation and trial of a capital case isadenial of due process of tan." Reece0. Georgia, supra, at 89-
90. (emphasis added).
Equal protection of law, as well as due process consideration militates against the state's argument. The state's position creates a cognizable class of persons charged with and held in custody with regard to offenses considered by grand jury and those defendants (like BUNDY) who are held in connection with charges unrelated to the offenses being so considered, By means of a distinction not grounded in statute the state would grant the right to appointed counsel to the first class andwithholdit from the latter. Adoption of this rule would enable the prosecution to effectively deny certain indigent defendants their right to effective assistance of counsel, by holding them in custody on unrelated offenses until the grand jury returns an indictment. The distinction urged by the state discriminate, without basis in law or policy, against an entire class of defendants and violates the Equal Protection clause of the Fourteenth Amendment and should be rejected.
2. Timeliness Notwithstanding Judge Rudd's sudden reversal on the issue of BUNDY'S right to pre-indictment (not pre-impanelment) counsel, he nonetheless denied the motions and challenges as being untimely filed. The statute pertinent to timeliness of a grand jury challenge exempts from its application those "who did not know or have reasonable ground to believe, at the time the grand jury was empaneled and sworn, that cases in which he was or might be involved would be investigated by the grand jury." S905.05 Flagstat.
(1970). No notice of the subject of the grand jury investigation was served on BUNDY. The Florida Supreme Court, in State. Lewis, 11 So.2d 337 (Fla. 1943) addressed the issue whether defendants failure to challenge grand jury proceedings asa waiver of their right, "It is hardly consistent with the spirit of fair trial to assume that a capital offense will be lodged against them and then require them to challenge the competency of the grand jury before it is drawn. They would in other words be required to defend against a probability that may never become a reality." State. Lew - is, supra, Since BUNDY did not have notice (nor was counsel appointed) that the grand jury would consider the offenses of which he was suspected, requiring him to challenge the grand jury before he was the certain subject of its investigation violates BUNDY'S right to a fair trial and ignores the exception set forth in F.S. S905.05. As such the trial court erred in denying defendants motions.
3. Notice If as Judge Rudd held, the defendant was on notice on the date of the bitemark search and seizure, 26 April 1978, that he would be the object of a grand jury investigation yet to be empaneled, BUNDY had a right to counsel at that point. If the appointment of counsel on related charges carried over to the homicide investigation, counsel did not timely perfect the rights of the accused and was ineffective under the Sixth and Fourteenth Amendments. Either (1) the defendant was denied the sight to timely appointment of counsel, or (2) the defendant had defacto counsel who was ineffective, or (3) the court erred in denying the challenges as untimely.
THE TRIAL COURT ERRED IN ADMITTING THE
BITEMARK IDENTIFICATION OPINION TESTIMONY
Admissibility ueZ non While neither "conceding" nor "admitting" the admissibility of bitemark identification testimony, it is without dispute the weight of legal authority weighs toward admissibility of bitemark identification testimony. The following is a series of legal citations where "bitemark" has been admitted into evidence. The BUNDY case is one of first impression in Florida.
The first bitemark case appeared in legal literature over one hundred years ago [Skrzeckas (1874) Superarbitrium, betr. der Verlezung Zweir Finger usw., Vjschr.
GerichtZ. Med. Band 211; Cameron, J.M.# and Sims, B.J, r "Bite-marks," ForensicDentistry (Churchill-Livingstone, London, 1974). However seventeen centuries ago the Kama Sutra of Vatsyayana recited some of the more striking classification of bitemarks on human skin. Burton, R. and Arbuthnot, F.F., The Kama Sutra of Vatsyayana, Translation (Allen and Unwin, London, 1963). Cameron and Sims, supra, at 132.
The standard announced in Frye. United States, 293F 1013 (D, C. Cir. 1923) has been recognized in Florida.
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs," Frye, U.S., supra, 293F 1014.
The standard for admissibility of new scientific evidence at a criminal trial is then neither common to criminal litigation, nor easily applied in the individual case.
350 (1975), upheld the admissibility of bitemark evidence on the grounds of superior trustworthiness, as the trier of fact could see for itself, by looking at the material object exhibits of slides, photographs, x-ray and models of the victim's bitemark wounds, and what constituted the basis for comparison with the defendant's dentition. Marx did not rely on untested techniques, unproven hypothesis, intuition or relevation, rather scientific and professional techniques to the solution of a particular problem which, though novel, was within the cap abilities of those techniques. PeopZe (2).
S$one, 143 Cal.Rptr. 61, 69 76 Cal. App.3d 625 ICal. 2d D.
C.A. (1978). The most exhaustive legal treatise on bitemark
(Mo.W.D.C.A. 19801, cert, den. 450 U. S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 the most recent, PeopZe v. MiddZeton, 444 Many other jurisdictions have admitted biternark comparison and identification into evidence:
State. Garrison, 120 Ariz. 255, 585P.2d 563, (AZ. 1978); People. SZone, 7 6 Cal.App.3d 611, 143 Ca1.Rptr.
2d 188; StateD. Peoples, 227 Kan. 127, 605P.2d 135, (Kan.
(1980); State. KZeypas, 602 S.W.2d 863 (Mo. 2d DCA (1980);
State 0. Temple, 302 N.C. 1, 273 S.E.2d 273 (N. C. 1981);
State. Routh, 3 0 0r.App. 901, 568 P.2d 704 (Or. C.A. 1977);
UnitedStatesv. Holland, 378 F.Supp. 144 (E.D.P.R. 1974) affd. sub nom. Appeal of Ely, 506F.2d 1050, cert.den.sub
nom. EhZyv. United States, 420U. S. 994, 95S.Ct. 1433, 43L.Ed.2d 676 (1975); StcxI; c V. Jones, 273 S, C. 723, 259S.E.2d 120, (S.C. 1979); Patterson. State, 509S.W.2d 857 (Tex. Crim.
(1974); and see Ann., 77 A.L, R.3d 1122). cf. Mikenas 21.
Qualifications- If the Court finds the bitemark evidence lacks sufficient scientific depth, further argument is unnecessary on the issue; if the Court finds the underlying scientific principles do provide the predicate only one of the three is satisfied:
(1) Has the science of bitemark identification developed to such a degree as to its reliability and credibility to permit its use as evidence in criminal proceedings?
Id.
The second test enunciated is:
(2) Does the evidence show or establish the qualifications of the state's witnesses as experts, enabling them to render an expert opinion? Id.
The trial judge expressed concerns over the impartiality of the state's expert witness (R3357 - 3358). The concern was voiced over the star witness Dr. Richard Souviron deliberately violating a court order and conducting a symposium on the TED BUNDY bitemark analysis prior to trial (R 1142-1144). Trial judge Cowart ultimately denied Defense Motion to Strike Testimony of State's Forensic Odontologist (R 8641) after initially referring ruling pretrial until after the selection of the jury (R3357).
The partiality and bias of the witness is a disqualifying feature in itself sufficient to preclude his testimony. PeopZe v. KeZZy, 17 Cal.3d 24, 130 Ca1.Rptr.
144, 549 P.2d 1240 (1976). By his association with the technique of biternark identification, by his manifest vested interest in protecting his own reputation and personal interests, and by his disregard for the orders of the court, the witness effectively disqualified himself, or should have been disqualified by the court. He suffered such a fate before in his history (R2759).
3. Factual Basis The third test recognized in Sager, supra, 600S.W.2d 561, and cases therein cited is:
(3) Was the factual basis which served as the basis for expert opinions herein supported by reliable and credible evidence?
The original photograph of the bitemark on Lisa Lew y ' s left buttock was made by St, Howard Winkler (R 8649- 8650). The negative of that photograph was supplied to Frank Lanzilla, FDLE; together they comprised exhibits 3-E and 3-F (R8650). Of critical concern for later bitemark analysis was the blow-up of these exhibits (R8701 - 87031, no expert in the field of photography authenticated the relationship, if any, between the original negatives and prints to the life sized one-to-one prints used by the state's witnesses (R 8743). Only Dr. Souviron whose impartiality was already suspect testified as these measurements and relationships which were of critical concern (R 8675, 8850) to the bitemark comparison (R8647, 8698).
Dr. Souviron was self acknowledged as an expert in the field of "forensic dentistry" (R8633) - "Forensic odontology" is a synonymous term comprised of (a) dental identification of remains, (b) bite mark comparison, (c) trauma and oral injury and (d) dental malpractice. 51 SO, Gal, L. R. 309, "Admissibility of Bite Mark Evidence, n. 3.
See alsoWrfghiV. State, 348 So.2d 26 (Fla. 1st DCA 1977) at 2 9. The same photographs were used by both experts (R 8739) for their analyses, Comparisons between the image in the photograph were made with stone and wax casts of BUNDY'S mouth (R 8713, 8856) by each doctor.
The failure to adduced expert testimony regarding the photographic techniques leaves an insufficient factual predicate for the comparison based opinions. "Distortion" was not explained or accounted for. U.S. SeZZers, 566 ZJ.
F,2d 884 (4th Cir. 1977). The "variations in lens, perspective, light, and development paper," id. should be accounted for.
"[N]evidence was offered to substantiate...
measurements by testimony as to the type of lens used, and the probable position and angle of the camera when the photograph was taken.
Thus it is impossible to determine whether or not the photograph in question distort the heights and lengths..., although it was the [state's] obligation to establish that the [ex perts'] calculations were not based on distortions. As it now appears, these calcuZations are unreliable."
Cir. (1981). (emphasis added) Within the context of a criminal trial, scientific or expert testimony particularly courts the danger of undue prejudice or of confusing the issues or misleading the jury because of its aura of special reliability and trustworthiness. In recognition of the outcome determinative impact of opinion evidence, clothed with the weight of expertise shown to be unreliable and untrustworthy, the case should be reversed. U, S. v. Brown, 501 F.2d 146 (9th Cir. (1974), rev ' don other grounds sub. nom. U.S. v. Noble, comparison identification].cf. Rules 702, 704, Fed.R.Evid.;
4. Opinion on Guilt DR. SOUVIRON: I was given four pictures, has obviously (sic) blood in the rectal area here, the individual has been beaten to death, I don't think this is consistent witha 12 year (R8788) old child (R 8789).
The testimony was improper and prejudicial, It should have been stricken by the court of its own motion Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967) at 463, citing Blackwellv. State, 7 6 Fla. 124, 7 9 So. 731, 1 A. L. R.
502; Urgav. State, 104 So.2d 4 3 (Fla. 2d DCA 1958)- In Gibbs the witness Walker when asked to identify a picture, stated it was his nephew lying on the ground dead. Thereafter "Q, Mr. Flalker, do you know when that photograph was taken?
A. That was taken immediately after the -he murdered my nephew." Gibbs v. State, supra, 193 So.2d 403.
The testimony of Dr. Souviron did not contain the legal conclusion, but fora forensic odontologist is similar to the situation encountered by the witness doctor in Farteyv. State, 324 So.2d 662 (Fla. 4 DCA 1975), at 663:
a. "Well, my opinion from the history, and cursory examination and from finding the vagina loaded with sperm at the time, was that she had been raped."
No predicate was established for the testimony as the subject matter was beyond the doctor's expertise and his analysis was entirely based upon photographs and the suspects dentition, not personal observation of the victim (R8793). John - son v. State, 314 So.2d 248 (Fla. 1st DCA 1975) at 252, would stand for reversal on prejudicial error,
5. Standards Every expert who testified regarding bitemark analysis testified that no standards have been articulated for bitemark identification; state's witnesses: Dr. Souviron (R 2873, 2902, 8728), Dr. Levine (R 30491, Dr. Sperber (R 3116); defense witnesses, Dr. Grew (R 3151), Dr, DeVore (R 3195-3196, 3228 - 3231). ''No evidence allows us to say a particular set of teeth left a particular [bite] mark," Dr. Lowell J. Levine (R 3053).
The problem of specificity of the comparison is the most difficult and controversial area within the realm of forensic odontology. Sopher, I.M., Forensic Dentistry, "Bite Mark Analysis," [Thomas Publisher; Springfield, I11 (1976)], p. 140. "The problem of specificity in the bite mark analysis results from the lack of a scientific core of basic data for comparison," Id, Classification of dentition on a sufficiently large segment of the population is at a similarly embryonic stage as the classification of the
first one hundred fingerprints. Id.;51 So. Ca1.L.R. 309, From the lack of definition and lack of standards opinions vary widely; examples illustrate the breath of discrepancy:
a. Sopher, supra, at 152: "The bite mark analysis indicated that there was absolutely no doubt that the individual from whom the models were made would be expected to produce a bite mark pattern identical to the one noted on the arm of the victim." The opinion was later expanded to "extremely consistent. ''
b. People 0. Watson, suppa, 75 Cal.App.3d 402, 142 Cal.Rptr. 143 (Dr. Beckstead): ' I... the dental impressions taken of the defendant's teeth were consistent with the bitemarks found on the victim's face.
State. Sager, Lentz): ''-..
the bite mark reflected in the photograph was beyond a reasonable doubt placed Furness) idAat 564 "'based upon reasonable med - ical and dental certainty' that the person from whom the casts were obtained inflicted the wound depicted in the photograph."
PeopZe v. SZone, supra, 76 Cal.App.3d 622, 143 it is very highly probable that the bite mark on the victim was perpetrated by the teeth belonging to the defendant '' Id.at 68 (Dr. Vale)" on the body of the decedent...
it was highly probable that the bite mark was made by the teeth of the defendant." " Highly probable" was equated with "reasonable dental certainty. 'I
e. flfehaus v. State, supra, Standish) the "bitemarks found upon the victim had been inflicted by the defendant,"
f. State. Garrison, supra, 585 P.2d 566 (Dr, Campbell): "'my conclusion was that the bitemarks on the deceased, and the bitemarks produced by the model that I received, were consistent, the marks were consistent with those being made by the teeth that I received.'"
g. State. KZeypas, supra, 602 S.W.2d 868 (Dr.
Gier): "'It's my opinion that within a reasonable scientific certainty that the bitemarks were made by the defendant.'"
h. State. PeopZe, supra, 605P.2d 141 (Dr.
Kraus):.. it was highly probable the appellant bit the victim's left breast."
i. Gustafson, G. ForensicOdontology, "Rite Marks" (American Elsevier Pub. Inc.; N.Y. 1966), p.
162. (Strom) "positive or no basis for conclusion; (Schaidt) high probability, (Strom) "positive or no basis for conclusion; (Schaidt) high probability.
j. BUIVDY (DR. Souviron): Within a reasonable degree of dental certainty (R8738) BUNDY'S teeth made the bitemarks. (Dr. Levine): Within a reasonable degree of dental certainty (R 8952).
Florida law, llrorth v * State, 6 5 So.2d 7 7 (Pla, 1952), and procedure, S90, 703 Pla.Stat., allow expert opinions which encompass ultimate issues of fact. Butfibba and Farleg caution against opinions which encompass the whale case. Two facts of must be absolutely established asa predicate for the bitemark opinion evidence: (1) proximity of time of infliction of the bitemarks on the deceased with death and (2) caution of the biternark by the accused. - - - - I Both legs must stand together to bear the weight of relevancy.
Dr. Souviron opined that the bitemarks were inflicted at or near death (R 11); the pathologist Dr, Thomas
P. Wood joined in the opinion (R 7796). The identification comparison testimony of Dr. Souviron (R8738) and Dr. Levine
(R 8898-9001) opinionated that BUNDY'S teeth had made the bitemarks. The whole case is closed. The whole case is based on opinion testimony. Standards must be fashioned by the Court in this case of first impression. The bitemark comparison identification opinion testimony, in the facts of this case, being in no way restricted, resulted in expert opinion testimony on the guilt of accused in violation of Gibbs and FarZey. Appellant would propose that the facts only of analysis and comparison be presented to the jury, and the opinion testimony be dis allowed. As Dr. Souviron noted
(R 2826), it is similar to assembling a puzzle which to a certain extent, lay persons are capable of putting together.
A verdict, asa matter of law and fact, would presuppose this conclusion.
THE TERM "FAILURE" CONTAINED IN THE JURY
INSTRUCTTONI E'LA STD JURY IPJSTR (CRIM).
2.13(h), (R9478) CONNOTED A PERSONAL RE-
QUIREMENT ON THE ACCUSED WHICH WAS OMMITED
OR NEGLECTED AND AMOUNTED TO JUDICIAL COM-
MENT ON THE ACCUSED'S SILENCE IN DENIAL OF
HIS CONSTITUTIONAL RIGHTS TO A FAIR AND IM-
PARTIAL TRIAL.
The essential main stay of the United States criminal justice system guarantees the right of a person to remain silent unless he chooses to speak of his own free will. A person should suffer no penalty for exercising those rights.
MaZZoy v. Hogan, 378U.S. 3, 84S.Ct. 1498 at 1493 (1964);
Griffinv. California, 370 U.S. at 679, 84 S.Ct. at 1493 (1965); Rogers. Richmond, 368U.S. 534, 81S.Ct. 735, 739, The term "failure" is defined, "omission of perform - dance of an action or taskesp. neglect of an assigned, expected, or appropriate action." Webster ' s Third New Interna - LionaZ Dictionary, (Merriam Co.; Springfield, MA 1971). The instruction literally is for the jury to draw adverse references from the defendant's silence as the instruction ignores other possible reasons for the defendant remaining silent.
Griffinv. California, 380U.S. 609, 84S.Ct. 1493
(1965) stressed that comment on refusal to speak was a penalty imposed by courts for exercising a constitutional privilege.
Using the term " failure " in the jury instruction eroded the privilege, makinq it costly. Griffinv. California, 380U. S.
States, 382U.S. 413, (1966). Adverse inferences drawn from a defendant's exercising his right not to testify are not warranted since a defendant may have reason to avoid testifying which bear no relation to fear of exposing guilt, such as poor demeanor or timidity. WzZson v. United States, 149 The Griffin court held there could be no negative comment on refusing to testify. The use of the term "failure," however, accomplishes the exact opposite. The term "failure" rather than underscoring the defendant's fifth amendment rights, reflects literally 'h duty to explain that which has been ommited." Prejudice attached to the defendant despite the good intentions of the Court. Trafficante zl. State, 9 2 So.2d 811 (Fla, 1957), Harper v. State, 151 So.2d 881 (Fla.
(1972); WiZson v. State, 371 So.2d 126 (Fla. 1st DCA (1978).
of King v - State, 143 So.2d 458, 464-466 (Fla. 1962). cf.
DEFENDANTS RIGHT TO COUNSEL WAS VIOLATED
BY THE TRIAL COURT'S DEPJIAL OF HIS MOTION
TO PEWIT APPEARANCE OF PRO BOlVO OUT-OF-
STATE COUNSEL, PRO HAC VICE.
A legally sufficient defense to the case against THEODORE ROBERT BUNDY required experienced supervisory Counsel to coordinate trial tactics and implement overall legal strategy from the time BUNDY contacted him, On the day after his arrest (R6895) through pretrial (R 16-17, 24, 31-32, 438 - 442, 725-744, 1704, 1705, 1713, 2022-2156) Millard Farmer stood ready to offer his services as supervisory counsel.
Farmer took his case in federal court up through the Fifth Circuit, where he was denied federal injunctive relief on two grounds. The Court did not rule on BUNDY'S Sixth Amendment holding that it would violate principles of comity if a federal court intervened ina state criminal proceeding.
Bundy v, Rudd, 581 F.2d 1126 (5th Cir. 1978) at 1129-1130.
The Fifth Circuit panel did, however, reach the merits of Farmer's claim. It ruled that whatever property right an attorney miqht have in representing a defendant did not attach until he had attained admission pro hac vice and commenced representation. Id, at 1130-1132. Since counsel had achieved neither, he had no standing to assert that the trial court's failure to admit him pro hac vice deprived him of his right to represent BUNDY without due process of law. Id. The Fifth Circuit's rejection of Farmer's due process claim anticipated the holding of the United States Supreme Court in
Leis. FZynt, 439 U. S. 438 (1979) reh.den. 441 U. S. 956, which denied a similar challenge.
It is BUNDY'S right to counsel, not, Farmer IS right to represent him that 1s raised here. The right to counsel of one's choosing is one of the most fundamental
constitutional guarantees. Powell 0. Alabama, 287 U.S. 45, (1978); lkh-cited States. Dimitx, 538 F.2d 1214, 1219 (5th Cir. (1979) cert-den. 429 U. S. 1104. Although the right to choose counsel is not absolute, and courts may impose reasonable limitation on this right, BUNDY'S case does not have the characteristics which have triggered the restriction.
The right asserted here is BUNDY'S, not Farmer's. Leis.
FZynt, 439 U.S. 438 (1979).Farmer requested to appear pro bono; it is not a case of BUNDY'S insisting that the court appoint a particular counsel, as Farmer's admission pro hac vice would impose no inconvenience on himself or on the court. United States. Brown, 591 F.2d 207, 310 (5th Cir.
1979); lhzited States. = ray, 565 F.2d 881, 887 (5th Cir.
1Y78); VnitedStatesv. Harrelson, 477 F.2d 383, 384 (5th.
Cir. (1973); Douglas v. State, 212 So.2d 42 (Fla. 2d DCA (1968);
WlZderv. State, 156 So.2d 395, 396-397 (Fla. 1st DCA 1963).
BUNDY requested no continuance to facilitated Farmer's representation which moots any argument that he moved for the pro hac vice appointment to delay the proceedings. United States v. Burton, supra, 584 F.2d 408, 490-491; Gandy2). Alabama, Judge Cowart justified his denial of Farmer's motion for admission pro hue vice in part by referring to the availability of the office of the Public Defender to represent BUNDY (R 438-442). Sanders. RusseZZ, 401 F.2d 241 (5th Cir. (1978), addressed the issue of defendants choice of counsel:
Lack of necessity as in the judge'sview simply is not and cannot be a proper basis for exclusion in these cases. The trial court cannot substitute its judgment for that of the litigant in the choice or number of counsel that the litigant may feel is required to properly represent his interest Id. at 246.
Ethical Canon 3-9 of the Florida Code of Professional Responsibility recognizes the desirability of prohace vice admissions.
[Tlhe legal profession should discourage regulations that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or on the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter ina tribunal before which the lawyers not permanently admitted to practice. (See alsonyntv. Leis, 574 F.2d 874, 878 (5th Cir. 1977) reversed on other grounds 439 U. S. 438).
Judge Cowart made much of the contempt orders Farmer had suffered in Georgia (R439). He failed, however, to consider the anxious circumstances and repetitive prosecutorial abuses which led to the incident giving rise to the contempt citations (R 2042-2067). Although he so stipulated in the order, Judge Cowart also apparently disregarded the significance of Farmer's status asa member in good standing of the Georgia Bar. As the Sanders court has held:
[Admission to a state bar is a basic determinant both of the attorney's professional qualification and good moral character because the state bar is the standard setting body that initially investigates and actively takes steps to insure that the canons of professional ethics are observed. Sanders'.
Russell, supraJ 401 F.2d 241, 246.
Perhaps, Farmer's fitness to practice would have been adequately impeached by evidence of disciplinary procedures instituted against him by the Georgia Bar, but no such evidence appears from the record. Nor did the hearing before Judge Cowart (R 2022-2156) produce any incontrovertible proof of Farmer's fitness. The Sixth Amendment guarantees of effective assistance of counsel and the Fourteenth Amendment guarantee of due process of law assumes awesome proportions ina capital case. Where the record is voluminous, the charged offense sensational, and the legal issues Byzantine in complexity, the assurance of right to counsel becomes even more critical. As such, the denial of BUNDY'S motion for pro bono counsel to appear pro hue vice was constitutional and legal error.
THE COURT'S INCLUSION OF JURY INSTRUCTIONS PER-
MITTING JURORS TQ INFER KNOWLEDGE OF GUILT FROM
FLIGHT WITHOUT CAUTIONARY INSTRUCTIONS CONSTITU-
TED ERROR-
At the close of the trial, the Court instructed the jury that it may infer consciousness of guilt from flight
(R9744 - 9745). The flight to which this instruction would have applied occurred on 15 February1978 (R6787 - 6795), one month after the Chi Omega slayings. Defense counsel timely objected to the instruction on two grounds. First, the jurors had no knowledge of other crimes (like the credit card theft, see R6895) of which BUNDY was suspected. Sea condly, the Court's instructions did not specify that the jurors had to find some relationship between BUNDY'S flight and guilt of the crimes charged to support on inference of guilt from flight (R9512 - 9515).
The Fifth Circuit has held that a jury instruction regarding flight as evidence of guilt is justified only where the jury has access to evidence which supports an inference from a consciousness of guilt to consciousness of guilt concerning the crime charged. VnitedStatesv. Myers, 550F.2d BUNDY admitted having stolen credit cards (R6895). When stopped in Pensacola, he had a stolen license tag on his car (R6792). BUNDY was wanted by federal authorities in connection witha kidnapping conviction in Utah (R9863 - 9878).
Because of BUNDY'S awareness of these charges against him, an inference of consciousness of guilt or his part for the Chi Omega incidents cannot be sustained.
In Myers, the possibility of intervening motivations for flight gave rise to the crucial requirement of It is the instinctive or impulsive character of the defendant's behavior, like flinching, that indicates fear of apprehension and gives evidence of flight such trustworthiness as it possesses [ cita - tion ommited]. The more remote in time the alleged flight is from the commission or accusation of an offense the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense. k < ted States0, Myers, supra, 550F.2d at BUNDY'S flight from the arresting officer in Pensacola occurred one month after the Tallahassee offenses. Any inference of guilt from the Pensacola incident or his departure from Tallahassee in mid-February, 1978,(R 7959) was too remote in time to be reliable.
TheMyers decision in consistent with Florida law.
Florida cases upholding jury instruction on flight as evidence of guilt intent have defended the trial court's instruction on grounds that the defendant's flight immediately ensued the commission of crime charged. Villagelieu v. State, 461 (Fla. 1975); aff'd per curiam 428 U.S. 242; WiZZCarns v.
In addition to the issues of relevancy and immediacy raised invyers and mirrored in Florida law, another legal principle is violated by the Court's instruction.
The Court's refusal to grant defense counsel's request for a modification of the instruction on flight (R 9512-9515) had a great prejudicial impact. He authorized the jurors to infer guilt from flight without cautioning them to ascertain whether any guilty state of mind they found had any relevance to the crimes charged. In Batey. State, 355 So.2d 1271 (Fla. 1st DCA 1978), the court ruled that the propriety of jury instruction on flight would also determine whether the judge had properly or improperly commented on the evidence. Because of the other possible sources of 'guilty knowledge' and the length of time between the Chi Omega incident and the 'flight', the jury instruction in BUNDY'S case was improper. The Court's instruction thus constituted an improper judicial comment on the evidence.
THE TRIAL COURT ERRED IN DENYING DEFENDANT
AN EVIDENTIARY HEARING ON THE EFFECTIVENESS
OF ASSISTANCE OF HIS TRIAL COUNSEL.
Standards in General The record is replete with allegations of or actual instances of the failure of counsel to dispose of their constitutional obligation as counsel. Most note worthy is the fact that no court appointed counsel had any capital case ex - perience. The trial closed with no counsel with any previous capital experience (R 9822). Knight v. State, 394 So.2d 997 (Fla. 1981) sets forth afour tier calculus:
a. The act or omission of counsel must be detailed in pleading.
b, The defendant has the burden of proof that the act or omission of counsel was measurably below that of competent counsel.
c. The defendant has the burden of proving "prejudice" to the extent that the acts or omission of counsel likely affected the outcome of the court proceedings.
d. The state may rebut all assertions by proving beyond a reasonable doubt no prejudice in fact occured.
2. Acts - or Omissions
a. Counsel were not sufficiently prepared for the bitemark challenge (R 2465); b. counsel did not adequately notice its motion to exclude the public depositions (R 2681);
c. counsel was not timely in moving to challenge the grand jury which indicted the defendant (R 2645); d. counsel did not adequately confer and consult with their client (R 2597, 2959, 3599, 3651, 5337, 8305); e. counsel was not prepared for trial (R 3960, 6129) despite representations to the contrary (R 90241, counsel had not seen certain exhibits (R 5684, 5930) and was so late in the preparation and production of certain bitemark evidence, (R9590) the same was not timely produced for the jurors consideration which would have been admitted if timely produced (R 9830, 9988);
f. no court appointed counsel had prior capital case experience (R 3651, 3677, 9037, 9287, 9296), and the case concluded with no counsel with any prior capital case experience (R 9822); g. counsel was not timely in producing semen testing analysis (R 9426); counsel assistance was below the standard required in capital cases in the area of trial procedure (R
3. Standard for Counsel Conduct Qualitatively, capital cases are different, K n { ghtv. Stake, 394 So.2d 997 (Fla. 1981) at 1001. The standards of conduct for counsel are higher in capital cases. Counsel in every criminal case should sufficiently confer with the accused to be prepared to present available defenses. U.S.
zt. Gray, 565 F.2d 519 (5th Cir. 1978); U.S. z1. FesseZ, 531 F.2d 1275 (5th Cir. 1978); Davis 71. Alabama, 596 F,2d 1214 (5th Cir. 1979); Gainesve Hopper, 575 F,2d 1147 (5th Cir. 1978)l Available defenses regarding bitemark and semen analysis, of obvious import, should have been resolutely and timely prepared and presented, ReZ % z'.Georgia, 554F.2d 1360 (5th Cir.
(1977); Gomez v, Beto, 462 F.261 596 (5th Cir. (1972). Being unfamiliar with evidence to be presented by the prosecution is a key point, Herring v. E'steZZe, 491 F.2d 125 (5th Cir. (1974), and the record reflects clear evidence of unprepared counsel.
Lee. Hopper, 499 F.2d 456 (5th Cir. 1974); Be22v. Georgia, 554F.2d 1360 (5th Cir. 1977); Gafnesv. Hopper, 575 F.2d 1147 (5th Cir. 1978).
4. Prejudice The inexperience of counsel was tantamount to no effective sentencing phase at all, Smith v. Estelle, 602
By preparing no effective or timely defense, by preparing no timely or effective sentencing case, BUNDY was denied a fundamentally fair trial. In fact the organization of counsel, or more correctly, the lack thereof was tantamount to mere lip service to the constitutional precepts underlying the Sixth Amendment. Ksmpv. Leggett, 635F.2d 453 (5th Cir. 1981); VoyZes v. Watkins, 489 F.Supp. 901 (N.
D. Miss. 1980); Young v. Zant, 506 F.Supp. 274 (M.D. GA.
(1980); Blake. Zant, 513 F.Supp. 772 (S. D. GA. (1981).
If nothing else, evidence of material import was kept from the jury by the conduct, or omission, of counsel (R 9830, 9990, 9998). In and of itself, the matter is sufficient prejudice fora new trial.
CONCLUSION
The final summary of each section con - ainsa "conclusion" which summarizes the precise relief sought respec - tiveto each argument. Rule 9.210(b) (5), F1a.R.App.P. For these reasons variously propounded reversal and new trial are in order.
THEODORE ROBERT BUNDY,
Appellant,
V. CASE NO. 57,772
STATE OF FLORIDA,
Appellee.
ANSWER Brief OF APPELLEE
JIM SMITH
Attorney General
DAVID P. GAULDIN
Assistant Attorney General The Capitol, Suite 1502 Tallahassee, FL 32301
(904) 488-0290
ISSUE A
APPELLANT WAS NOT PREJUDICED BY
THE PUBLICITY THAT PRECEDED HIS
ISSUE B
APPELLANT IS NOT ENTITLED TO A
NEW TRIAL BECAUSE VENUE WAS
CHANGED FROM LEON COUNTY, FLORIDA
ISSUES C AND D
APPELLANT WAS NOT DENIED A FAIR
TRIAL BECAUSE OF THE WAY IN WHICH
ISSUE E
COUNTS ONE THROUGH FIVE AND COUNTS SIX
AND SEVEN WERE PROPERLY JOINED.
CONSEQUENTLY, THE TRIAL COURT DID NOT
ERR IN REFUSING TO SEVER COUNTS ONE
ISSUE F
THE JURY SELECTION PROCESS DID
NOT VIOLATE THE WITHERSPOON
ISSUE G
THE COURT DID NOT ERR IN DENYING
APPELLANT'S CHALLENGE TO THE GRAND
JURY NOR WAS APPELLANT DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL IN
REGARD TO APPELLANT'S GRAND JURY
ISSUE H
THE TRIAL COURT DID NOT ERR IN
ADMITTING THE BITE MARK IDENTIFICA-
ISSUE I
THE TERM "FAILURE" CONTAINED
IN THE FLORIDA STANDARD JURY
INSTRUCTION (CRIMINAL) 2.13 (h)
(R-9478) WAS NOT AN IMPERMIS-
SIBLE COMMENT UPON APPELLANT'S
ISSUE J
APPELLANT'S RIGHT TO COUNSEL WAS NOT
ABRIDGED WHEN THE TRIAL COURT REFUSED
TO ALLOW MILLARD FARMER TO present ISSUE K
THE COURT'S INCLUSION OF A FLIGHT
INSTRUCTION TO THE JURORS WAS NOT
ISSUE L
THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT AN EVIDENTIARY
HEARING ON THE EFFECTIVENESS OF
TABLE OF CITATIONS
Pose (s) Cases Adams v. Texas, Alvarez v. Wainwright, Andrews v. State, Antone v. State, Ashley v, State, Ashley v. State, Baeza v. United States, Batey. State, Beckwith v. State, Behm v. Division of Administration, Brooks v. State, Brown v. State, Bundy v. Rudd, Cr.
117 SO. 694,
Fotianos v. State, Frye. United States, Gandy v. State, Gerstein v. Puqh, Gibbs v. State, Hardingv. State, cert.- Hargrett v. State, 0 Hargrett v. Wainwright, Hewitt v. State, Hoy v. State, Jackson v. State, Johnson v. State, Jent v. State, Kline v. Ford Motor Company, Kniqht v. State, Knight v. State, Lakeside v. Oregon, Leis. Flint, Lloyd v. State, Lucas v. State, Mackiewicz v. State, cert. den. 362 - U. S. 965, 80 S, Ct, 883, Maqqard v. State, Malloy v. State, Manninq v. State, Manson. Brathwaite, MarzulLo v. MaryLand,' McMann v. Richardson, McPhee v. State, Miller v. Harvey, Murphy v. Florida, Nebraska Press Association v. Stewart, Neil. Biqqers, O ' BE ~ ryv. State, Paul. State, Paul. State, Peek v. State, People. Allah, - vii - People. Marx, People. Milone, 356 N.E.2d 1350 (Ill. 2nd Dist.
People. Palmer, 145 Cal. Rptr. 466, 80 Cal. App.3d People. Shirley, People. Slone, 76 Cal. App.3d 611 (Cal. 2d Dist. Ct.
People. Smrekar, People. Watson, Reece. Georgia, Rojas v. State, transferred to 296 So.2d 627, cert.- den. 419 U. S. 851, Ross. Reda, cert. den. 423 ' u. S.
Rubin v. State, Ruffin v. State, - viii - Schick v. United States, 54 L.Ed.2d 762. on reh ear:
Seay v. State, cert.- den. 419 U.S. 847, Sinqer V. United States, Spinkellink v. State, 313 So.2d 666, 670 (Fla. 1975), cert. den.
Smith v. State, Smith v. State State ex re1 Ashman v. Williams, State. Belien, State. Freber, State. Garrison, State. Johnson, State. Kendrick, State. Mclntosh State. McQueen, State. Saqer, (Mo. West. Dist. Ct. App. 1980), cert. -den. 450 U. S. 910, State. Tait, Stovall V. Denno, Stsaiqht v. State, Strawn v. State ex rel. Anderberq, Stripling v. State, 439 So.2d 187 (Fla. 3d DCA 1977), reversed on other grounds: cert. den.
Talkyv. State, Turner v. State, Turner v. State, United States. Adams, United States. Awkard.
597 F.2d 667 (9th Ci;. 1979), cert. den.
United States. Burton, United States ex rel. Carey v. Rundle, cert.-den.- sub nominee Carey v. Rundle, 397 U. S. 946, 90 S.Ct.
Wyller v. Fairchild Hiller Corporation, a - xii -
FLORIDA STATUTES
FLORIDA RULES OF CRIMINAL PRODECURE
OTHER AUTHORITIES
Annot Admissibility of Hypnotic Evidence at Criminal Trial.
"Accused'sRights to Assistance of Counsel at or Prior to Arraignment. I' 5 A.L.R.3d 1269-1351 and 1981 pocketpart.iii.
STATEMENT OF THE CASE AND FACTS
Issues A and B:
Jury Selection The following facts concerning jury selection are crucial to this Court's determination of Appellant's issues "A" and 'IB", the alleged prejudice inuring from the trial court's failure to close certain pretrial hearings and the alleged deprivation of Appellant's right to be tried in the county where he committed his crimes.
The jury selection commenced in Miami, Florida, on Monday, June 25, 1979, and was concluded there on Saturday, June 30, 1979, with the selection of the final alternate juror. (R-3928- 5652). Extraordinary precautions were taken by the trial court to ensure that pretrial publicity did not taint the jurors.
The trial court issued orders to a11 parties to refrain from unnecessary outside comments. (R-3949-3950). According to Appellant's trial counsel Good, "Very luckily, venue was changed,'' a reference to the change of the trial from Tallahassee, Florida, to Miami, Florida. (R-3943). Potential jurors were first voir dired generally and then individually.
(R-3971). Both sides stipulated that the trial court could vo-dire the potential jurors collectively. (R-3975).
To further ensure that Appellant received fair and unpublicity-tainted jurors, the trial court ruled that if necessary, additional peremptory challenges would be granted and that Appellant and his counsel could consult with DK. Spillman, an "expert consultant in jury selection", who was allowed to remain at counsel table throughout the jury selection process.
(R-3932-3944). Both sides were given ten peremptory challenges apiece. (R-4735).
Representative general questions that the court asked the potential jurors may be found at pages 3975-3979, and representative individual voir dire questions asked by the parties may be found at pages 4033 and 4090 of the record.
In alphabetical order, the jurors who rendered Appellant's verdicts weye: 1. James L. Bennett, 2. Dave A. Brown, 3. Robert Corbett, 4. Bernest Donald, 5. Mazie Edge, 6. Ruth Hamilton, 7.
Floy C. Mitchell, 8. Mary K. RUSSO, 9. Alan Smith, 10. Estela Suarez, 11. Vernon Swindle, 12. Rudolph E. Treml (foreman). (R- Because of their importance to the argument in issues A and B, the individual voir dire of each will be discussed separately.
James L. Bennett Mr. Bennett first makes his appearance in the record at 5278 and was individually voir dired at pages 5463-5486.
While Mr. Bennett had read something about the "Bundy case," he could not, without prompting, recall any of the facts about the case. (R-5468). He didn't know about the specifics about the crime or about Appellant's personal life but he did believe that there were teeth marks "or something" found on the victims. (R-5475-5477). Mr. Bennett thought that there had been comparisons made of these teeth marks but he did not know the results of these comparisons. (R-5477). As will be discussed infra, MK. Bennett was the only actual juror who had any knowledge at all that teeth marks were involved in this case.
Mr. Bennett had no opinion as to the guilt or innocence of Appellant, promised to follow the court's instructions, wouldn't be swayed by anyone else's opinion, wouldn't be swayed by matters which he may have read, and wouldn't be influenced by anything that he had heard about the case outside of the courtroom. (R- 5466). Any details that he knew about the case prior to serving on the jury he promised he could put out of his mind, as well as be fair, and render an opinion based on the evidence. (R-5478- Importantly, the defense team did not challenge Mr. Bennett for cause or exercise one of its remaining peremptory challenges to remove him. (R-5487).
Dave A. Brown Mr. Brown makes his first appearance in the record at 5040 and was individually voir dired at pages 5231-5346.
Mr. Brown had heard about the case for the first time only a week prior to the jury selection process; he could not remember what he had heard or read. (R-5232; 5239). Mr. Brown had heard some conversations between people going in and out of the courthouse but could not recall the nature of these conversations. (R-5233). Mr. Brown had heard nothing else other than that which has already been detailed, and asserted that he could render a fair verdict. (R-5233-34). Mr. Brown stated that he could put aside anything he might have read in the paper about this case. (R-5240).
Robert Corbett Mr. Corbett first makes his appearance in the record at 4830 and was individually voir dired at pages 5004 - 5031.
Mr. Corbett only knew Appellant's name, and had not read about the case (it was not his "cup of tea"--he was "more into sports"--and thought Appellant might have been accused of "kidnapping somebody and possibly murdering somebody.") (R-5005- 5006). He could not remember when he first heard about the case or what he had heard. (R-5014). He knew nothing about Appellant's background. (R-5018).
Bernest Donald Mr. Donald makes his first appearance in the record at 4281 and was individually voir dired at pages 4349-4356.
Mr. Donald stated that he had read and heard nothing about the case and that he had no preliminary opinion about the case.
(R-4351-4352).
Mazie Edge Mrs. Edge makes her first appearance in the record at 5040 and was individually voir dired at 5152-5188.
No one had talked to Mrs. Edge about the case in her presence. (R5152-5160). She might have initially read an article about the case but had retained no facts or details about Appellant or his case. (R-5164). She could not even remember Appellant's name (R-5164).
Significantly, when asked to state how Appellant was prejudiced by Mrs. Edge asa juror, defense counsel Good had no reply. (R-5222).
Ruth Hamilton Mrs. Hamilton makes her first appearance at page 4830 of the record and was individually voir dired at pages 4915-4930 of the record.
Although she had read about the case, she had not formed an opinion about it, did not remember when Appellant was arrested, could not remember what she had read because her memory was not "very good", and although she had seen something on T.V. about the case, she could not remember what it was. (R-4917-4918:
Floy C. Mitchell Mrs. Mitchell makes her first appearance in the record at 4566 and was individually voir dired at pages 4708-4734.
Mrs. Mitchell stated that she had read about the case in the paper one day and forgot it the next; she could remember no details about the case. (R-4716-4717). She stated that she could base her verdict on the evidence presented. (R-4711).
Although she had read in the paper that Appellant was accused of killing two girls, she "didn't know" because she "wasn't there."
(R-4715).
Mary K. Russo Mrs. Russo makes her first appearance in the record at 5277 and was individually voir dired at pages 5347 - 5366.
Mrs. Russo knew nothing about the charges against Appellant nor about his personal life. (R-5321). She had seen only a few headlines about the case but did not have time to read the articles. (R-5327. She had no feelings about the Appellant's guilt or innocence and felt she could render a fair verdict.
(R-5321-5322).
While in the jury room waiting to be called asa potential juror, she had heard Appellant's name once but had heard nothing else concerning Appellant or his case in the jury room (R-5330- Alan Smith Mr. Smith makes his first appearance in t,.e record at 3973 and was individually voir dired at pages 4148-4181; 4191-4198;
Mr. Smith knew very little about the case, knew little about Appellant, and promised that he could be a fair and impartial juror, puking aside everything that he had heard or read, basing his opinion on the evidence. (R-4154; 4174; 4149).
Estela Suarez Mrs. Suarez makes her first appearance in the record at 3973 and was individually voir dired at pages 4211-4258.
She had not read about the case in the newspapers and had first heard about the case the day before she was questioned asa potential juror. (R-4246; 4221). She had no opinion about the case and believed that everyone was innocent until proven guilty. (R-4221; 4247; 4257; 4251).
While in the jury room, she had shown her innocence about Appellant and his case by asking the other potential jurors "Who is he?" (R-4235). The only conversation she remembers in the jury room concerning the case was about how long the potential jurors, if selected as jurors, might have to spend away from their homes or jobs. (R-4231).
Vernon Swindle Mr. Swindle makes his first appearance in the record at 4281 and was individually voir dired at pages 4436-4450.
Mr. Swindle had little knowledge of the case, knew nothing about the details of the case, and nothing that he had heard or read gave him an opinion as to Appellant's guilt or innocence.
(R-4438-4439). While Mr. Swindle worked in the mainroom at the Miami Herald, he did not talk to other people about the case at work or hear them talking about it (if they did) because he was too busy. (R-4441-4442).
Rudolph E. Treml (foreman) Mr. Treml makes his first appearance in the record at 4282 and was individually voir dired at 4451-4467.
Mr. Treml knew nothing about Appellant's case, had heard only one sentence on the T.V. about the trial being transferred from Tallahassee to Miami, and had no opinion on the case. (R- After Donald, Treml, Suarez, Smith, Mitchell, and Swindle were tentatively selected, they were sequestered. (R-4762- 4763). This was prior to the motion to strike by the defense team because of alleged talk about the case where the potential jurors were being held. (R-5161).
Other pertinent facts concerning jury selection are that defense team member Good thoughtthatMiami was the best place in Floridaforthe case, thatthe defense was left (bythestate ' s count) with three peremptory challengesafterthejury was selected', and thatthetrialjudgein open court warned everyone abouttheconsequences of polluting or contactingthejury. (R- 5228; 5532). Appellant (personally) expressed his satisfaction with thejury selected (R-10082). The Judgethoughtthatit was an "excellent" jury. (R-10120).
Other facts, concerningnotonlyIssuesA and B, butthe rest of Appellant ' sissues a5 well, will be foundwherepertinent inthe body of this brief.
'The defensestrikesareaccountedforasfollows: Eightleftaftertheexcusal of CarnathanandMagle (R-4742; 4751; Six leftatR-5033; Five left afterthestrikingofScholsberg; with the final two exercised at 5522-23, leavingthedefense team with three peremptory challenges. Immediately thereafter, the defense team accepted thejury. (R-5524) ISSUE A
APPELLANT WAS NOT PREJUDICED BY
THE PUBLICITY THAT PRECEDED HIS
TRIAL AND CONVICTION.
Appellant argues that the trial court "erroneously" applied nonapplicable standards to his requested closure of certain pretrial (bite mark) evidentiary hearings and thereby prejudiced his right to a fair trial. According to Appellant, the issue is not "prior restraint, but public access." (Appellant's brief at The issue is neither. The issue is whether Appel ant can show prejudice to his right to a fair trail by (1) the court'srefusal to close these certain pretrial hearings and (2) the pretrial publicity in general.
Petitioner's argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But under Murphy, extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair, Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial.
This we will not do in the absence of a "trial atmosphere... utterly corrupted by press coverage," Murphy v. Florida, supra, at 798. One who is reasonably suspected of murdering his children cannot expect to remain anonymous. Petitioner has failed to convince us that under the "totality of circumstances," Murphy, supra, the Florida Supreme Court was wrong in finding no constitutional violation with respect to the pretrial publicity.
The judgment of the Supreme Court of Florida is therefore affirmed. (Emphasis supplied) See also Murphy v. Florida, 421 U. S. 794, 95 S.Ct. 2031, 44 (1976); Chandler v. Florida, 449 U. S. 560, 101 S.Ct. 802, 66 As in Dobbert v. Florida, Appellant's argument basically rests on the mass of the pretrial publicity, and not its prejudice. Appellant has failed to point out specifically where in this record, but for one exception which will be discussed below, he is prejudiced by the failure to close pretrial hearings concerning bite mark testimony.
The one exception referred to above is:
But the Record before the Court reflects four of the actual jurors, including one alternate, were more than aware of the bite mark evidence issue. (R-4109, 4522, It was the trial judge ' responsibility to protect the accused from inherent prejudicial publicity. The bite mark evidence can only be construed as positive identification, conclusive guilt. The preliminary reports were that the bite marks were inflicted by the accused. (R- 8-12). Knowledge of skh evidence through news channels could only leave the jury panel with quilt prone tendencies.
(Appellant's brief at 49; emphasis added).
Of the "four actual jurors, including one alternate," only one was an actual juror (Bennett, R-5477), two were excused (Carnathan and Magle, R-4109, 4742, 4522) and one was an alternate (Von Seggren, R-5604, 5652), who did not deliberate and could not have possible affected the outcome of Appellant's trial.
Bennett, the actual juror, as recounted earlier by the State, was only tangentially aware that bite marks were involved in this case: didn't know the specifics about the crimes with which Appellant was charged; didn't know the results of the bite mark comparisons; had no opinion about the guilt or innocence of Appellant; and most importantly, was not challenged for cause nor struck by the defense team by use of one of its three remaining peremptory challenges. (R-5477; 5475-5476; 5478-5479; 5487).
Appellant's long, academic discussion on what standards should have been used in determining whether the pretrial hearing should have been closed is irrelevant. While this is not a "prior restraint case" (only because the Court didn't close the hearings Appellant complains about), Nebraska Press Association and State. McIntosh, 340 So.2d 904, 908 (Fla. 1977), upon which the trial court relied, are helpful here. (R-678).
Taking them in reverse order, in McIntosh, this Court held that any action taken by the Court in restricting the media must relate to the danger sought to be avoided and must not be unconstitutionally overbroad. In Nebraska Press Association v.
Stewart, the U. S. Supreme Court listed the following alternatives to protect a defendant's right to fair trial:
(1) Change of trial venue;
(2) Search and questioning prospective jurors;
(3) The use of instructions of each juror to decide the issue only on the evidence presented in the court;
(4) Sequestration of the jury.
Here, change of venue was granted from Tallahassee, Florida to Miami, Florida, (practically speaking, the most remote geographical point possible); all of the jurors stated that they could decide the issues based on the evidence presented in the court; the jurors were individually voir dired; the jurors were sequestered when the jury was empaneled. (R-3923; 3949-3950;
3971; 5529; see generally the State's Statement of the Case and Facts, supra, relating to issues " A " and "B").
It's difficult to see how the publicity that occurred prior to Appellant's trial prejudiced his right to a fair trial. The available trial management alternatives ensured the selection of a jury which gave Appellant a fair trial without chilling First Amendment interests. Additionally, there is no showing in this record that the other alternatives would have been more effective in achieving trial fairness. Indeed, as the trial court observed, if venue was changed, where could the trial go? If the case was continued, publicity would just start anew. (R-5226- The trial court did not err in refusing to close Appellant's pretrial hearings. This is particularly so because Appellant has failed to point to any specific prejudice as reflected in the rec rd. - CF. Boy v. State, 353 So.2d 826 (Fla.
(1978); Jackson v. State, 359 So.2d 1190 (Fla. (1978); and Knight
v. State, 358 So.2d 201 (Fla. 1976). Unlike the facts and circumstances presented in, say, Manninq v. State, 378 So.2d 274 (Fla. 1974), Appellant has not demonstrated that:
[tlhe general state of mind of the inhabitants of [the] community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom. Id. at 276.
Here, unlike in Manninq, the individual voir dire of the jurors who actually rendered Appellant's verdict conclusively demonstrates that they were either virtually unaware of the circumstances surrounding Appellant's case or, in Juror Bennett's case, still so unaffected by it as to render a fair and impartial verdict.
ISSUE B
APPELLANT IS NOT ENTITLED TO A
NEW TRIAL BECAUSE VENUE WAS
CHANGED FROM LEON COUNTY, FLORIDA
TO DADE COUNTY, FLORIDA.
Appellant argues that the trial court failed in controlling the "pervasive prejudicial publicity," which resulted in his venue change from Leon County, Florida to Dade County, Florida, thus forcing him to for ego his constitutional right to be tried in the county where the offense was committed.
After an actual test in Tallahassee, Florida, the trial court granted Appellant's motion for change of venue. (R- 3922). It was Appellant, and not the State, who sought the change of venue from Leon County, Florida to Dade County, Florida. (R-748-1072).
The county where the trial takes place after a change of venue is granted is the county in which the defendant is constitutionally entitled totrial, Turner. State, 87 Fla. 155, 99 So. 334 where the defendant was granted a motion for change of venue from Liberty County, Florida to Leon County, Florida, where his trial was subsequently held. Thereafter, on appeal to this Court, his conviction was reversed. Upon retrial, Coxwell attempted to change venue back to Liberty County, Florida, where the crime occurred. The reason venue had been changed in the first place was because of the prejudicial pretrial publicity. On his second appeal, Coxwell argued that he had a constitutional right to be tried in the place where the crime occurred. The First District Court of Appeal disagreed, citing Turner, supra, for the proposition that once a change of venue had been granted, Coxwell's constitutional right to be tried was in Leon County and not Liberty County, where the crime occurred.
Implicit in the Coxwell decision, supra, is the same argument that Appellant makes here: Publicity forced the change of venue, not the Defendant. If th s argument were adopted, and taken to its logical extreme, there could never be a change of venue which could be upheld because the Defendant would always be entitled to discharge because of the prejudicial publicity.
What Petitioner was constitutionally entitled to was a fair trial. That he got. See the State's Statement of the Case and Facts on this issue.
Finally, in regard to any alleged "prejudice" that insured asa result of the change of venue, the basis of Appellant's complaint concerns a "good negative" which was in the possession of the "Pensacola New Journal," which refused to relinquish the negative to Appellant. (Emphasis added). In addition to the fact that the negative was in Pensacola, not Tallahassee, Appellant was well aware of this evidence at least a year prior to the Commencement of his trial. (R-9588). Moreover, t,.e use of this "evidence" would - not have affected the outcome of the trial (R-9989).
Appellant's constitutional right to a fair trial was the constitutional right to have the trial in Dade County, Florida, after his motion for change of venue had been granted. Indeed, even if the "media... controlled the docket, not the trial judge'', Appellant's complaint ought to be against the media, not the State.
As for Appellant's requested relief, that the case should be "reversed fora new trial in Leon County," this was the exact issue decided adversely to the Defendant in Coxwell, supra.
ISSUES C AND D
APPELLANT WAS NOT DENIED A FAIR
TRIAL BECAUSE OF THE WAY IN WHICH
HE WAS IDENTIFIED BY NITA NEARY.
Appellant argues that he was denied a fair trial because
(1) the State's use of hypnosis on Nita Neary impermissibly tainted her recollection and (2) the photographic lineup in which she participated was so suggestive as to corrupt the remaining part of her memory which was not infected by the hypnosis session. Because these issues are merely facits of the identification process, each will be dealt with separately as well as collectively.
HYPNOSIS
Appellant argues that Nita Neary's identification of him was corrupted by virtue of the hypnotic session which occurred on January 2 3, 1978. (Appellant's Brief at 5 6). Specifically, Appellant argues that: (1) Nita Neary's hypnotically influenced testimony resulted in "confabulation"; (2) asa result of the hypnotic session, and the environment in which it took place, Nita Neary "came out of the hypnotic session unshakeably convinced of the spontaneity and reliability of her 'memory' and totally unaware of the distortion or confabulation which took place during her hypnotic session." (Appellant'sbrief at 63);
and (3) that the jurors accorded undue weight to her "hypnotically refreshed testimony", and were mesmerized by the scientific aura surrounding hypnosis.
As noted by Appellant, the only Florida case dealing with a witness's hypnotically refreshed memory is Clark State, 379 So.2d 372 (Fla. 1st DCA 1979) (Appellant's Brief at 5 6). In Clark, the victim, Charles Wayne Smith, was robbed and shot by two black males. Subsequently, on several occasions, Smith was shown photographs of various individuals suspected by the police to have been his assailants. None of these sets of photographs contained pictures of his assailants.
Thereafter, Smith was placed under hypnosis and told to reconstruct the robbery episode. After coming out of the hypnotic trance, Smith was shown photographs of his assailants, who he then identified.
At trial, Smith testified to the manner in which he identified his assailants, specifically detailing to the jury that he had been placed under hypnosis. In order to allow the jury the opportunity to further evaluate the credibility of Smith, the hypnotist was called, who testified as to the validity of hypnosis.
The First District Court of Appeal held that the victim's identification, which was not made in the hypnotic state, was admissible and his credibility was for the jury to determine.
Going further, the First District Court of Appeal held that the trial court did not abuse its discretion in qualifying the hypnotist as an expert witness and in allowing him to testify.
Generally, but with some notable exceptions, courts across the country have allowed testimony of witnesses whose memories have been hypnotically refreshed. See, e.q., Annot.:
Admissibility of Hypnotic Evidence at Criminal Trial, 9 2 ALR.3d 442, Section 8; Harding v. State, 246 A.261 302 (Mary. App.Ct.
Creamer v. State, 205 S.E.2d 240 (Ga. 1974); People. Smrekar, 385 N.E.2d 838 (Ill. App. Ct. 1979); State. McQueen, 295 N.C.
96, 244 S.E.2d 414 (1978) and State. Jorqensen, 8 OK. App. 1, (1982). As noted by the trial court, Appellant's argument as to the invalidity of hypnosis is one which goes to the weight of the evidence as opposed to its admissibility. (R-6694); United States. Adams, 581 F.2d 193, 198-199 (9th Cir. (1978); Kline v.
Ford Motor Company, 523 F.2d 1067, 1069 (9th Cir. 1975); Wyller v. Fairchild Hiller Corporation, 503 F.2d 506, 509 (9th Cir.
Before getting bogged down in the academic details of whether hypnosis is reliable, and whether the issue is one of admissibility of evidence, some distinction in this case should be noted. First, in Clark, supra, the hypnotist was allowed to testify. Here, Dr. Arroyo never testified, strip ping Appellant of his argument that the jury would be unduly influenced by the scientific credentials of an expert. Second, unlike Clark, a tape of the hypnotic session was admitted into evidence, which the trial court reviewed before ruling upon the admissibility of Nita Neary's testimony. (R-5936-5937; 6427; 6490) Third, at trial and before the jury, the State dis associated itself from the use of hypnosis, specifically asking Nita Neary what if anything she remembered after the hypnosis session that she had not remembered prior to the hypnosis session. (R-8500-8503).
More about this later.
Based on the foregoing, even if Clark were to fall, Nita Neary's testimony would still be proper because hypnosis was not relied upon by her in identifying Appellant.
Moreover, according to the trial court, and supported by the defense team's expert, the use of hypnosis was actually, ina stricter sense, exculpatory to Appellant. (R-6694; 6496-6498).
Dr. Kuypers, the defense team's expert who testified at the hearing on the motion to suppress but not at trial, stated that there were four areas of Suggestiveness" that occurred in the hypnotic session: (1) hair (R-6452; 6455-6465; 6493), (2) 21n Appellant's case, a tape of the hypnotic session was See also R-9593, - introduced. (R-9354; -- et. seq.)
eyebrows (R-6462; 6493), (3) coat collar turned up (R-6465; 6493) and (4) her view of Ronnie Eng (R-6472; 6482; 6493).
According to the trial court, and supported by the evidence, if the hypnosis process was suggestive, it did not "impact" on the identification of Appellant as none of the above criteria were used. (R-6694; 8500-8503).
Specifically, at trial, Nita Neary stated that while under hypnosis she said something about the person in the foyer having dark hair, after hypnosis she did not remember that the man had dark hair, and could not testify to the color of his hair. (R- 8501). Neither the description of the hair nor the eyebrows figured into the identification process (R-6694; 8592 (hair);
8500-8503). The most important identifying features to Nita Neary were the nose and mouth of Appellant. (R-8593).
Appellant's claim that her identification of him because of her comparison of him to Ronnie Eng was tainted is not a factor either. (R-8501-8503). This is particularly so because Appellant, waiving any objections that he might otherwise have had concerning a comparison, purpose fully stood next to Eng, who was his witness, before the jury. (R-9328-9329).
Most significantly, except for the hair, eyebrows, coat collar, and view of Ronnie Eng, Nita Neary's identification of Appellant during the hypnotic session was virtually identical with her previous and subsequent descriptions of Appellant.
Under hypnosis, she stated that she saw the man in the foyer in profile (R-6451), that he had a knotted, navy blue toboggan cap which came down over his eyebrows (11-6453); that he was dark complected, in his earlier 20's (R-6462); that she couldn't see his eyes (R-6464); that he was clean shaven and that his ears were covered (R-6464); that she couldn't see his neck because his collar was up (R-6465); that he had a pointed nose (R-6467-6468);
that he weighed 150 to 155 pounds (R-6470); and that he had on a navy blue jacket that went down below his waist (R-6470); that he wore light pants (R-6471) and that he was 5 ' 8 " to 5'10" in height (R-6451). Compare this description under hypnosis with her initial descriptions given below under the subheading "Identification".
Based on the foregoing, the trial court found that during the course of the hypnosis Appellant's original description by Nita Neary did not vary nor was Appellant at the time of the hypnotic session even a suspect; chronologically, the hypnosis session occurred on January 23, 1978 and Appellant's arrest was on February 15, 1978. (11-6694; 6787-6795 (arrest); R - 4 (indictment); R-5944 (Eng eliminated asa suspect as of January 20, Nita Neary's initial identification and description of the assai ant to Nancy Dowdy (R-6361-6362), uniform throughout her testimony, controls. In State. Freber, 366 So.2d 426, 628 (Fla. 1978) this Court held:
In our view, an identification made shortly after the crime is inherently more reliable thana later identification in court.2 The fact that the witness could identify the respondent when the incident was still so fresh in her mind is of obvious probative value. See State.
[Footnote 21 This is particularly so because of constitutional safeguards surrounding the identification process. The United States Supreme Court held in Stovall v. Denno, 388 1199 (1967), that an identification maybe attacked asa denial of due process of law where the circumstances of the identification were unnecessarily suggestive and conducive to irreparable mistaken identification. See Foster v.
State, 309 So.2d 5 2 (Fla. 2d DCA 1975);
Hamilton v. State, 303 So.2d 656 (Fla.
2d DCA (1974).
The prior identification is reliable evidence of identity, and the declarant's presence in court and availability for cross-examination eliminate the usual danger of hearsay testimony. For these reasons, we hold that testimony of a prior extrajudicial identification is admissible as substantive evidence of identity if the identifying witness testified to the fact that a prior identification was made.
[Footnote 3 omitted] Put another way, hypnosis is a red herring in this case.
The hypnosis session neither tainted Nita Neary's identification of Appellant nor was relevant in her identification of Appellant. Whatever the merits of hypnosis in the proper case, it has no place here. Confabulation couldn't have occurred because her identification under hypnosis was substantially similar to her identification of Appellant before and after the hypnosis session. The areas of discrepancy complained about by Appellant (hair, eyebrows, coat collar turned up, and view of Ronnie Eng) were explained, repudiated by Nita Neary and the State, and certainly not factors in the identification process.
Tapes of the hypnotic session are available for the Court to review, as the trial court reviewed them. A battle of experts before the jury never ensued and there was no attempt by the State to bolster the credibility of Nita Neary by calling an expert. Neither was there an attempt by Appellant to attack the credibility of Nita Neary by calling Dr. Kuypers to testify before the jury. In short, confabulation didn't occur: Nita Neary's testimony was reliable; and the jury was not lead stray by the weight of scientific authority.
Moreover, this Court would do well to read and adopt the common sense suggestions of Chapman v. State, supra, at 1283 et seq. if it believes that hypnosis is implicated in this case.
But one final point. Even in such states as California, which refuse to allow hypnotically induced testimony, hypnosis is still allowed for the purpose of investigation. E.G., People.
Shirley, 30 Cr.L.Rptr. 2485 (Cal. S.Ct. March 11, 1982) at 2487 (" [ Wle do not undertake to foreclose the continued use of hypnosis by the police for purely investigative purposes.") Here, the hypnosis was used only for investigative purposes. As mentioned earlier, no attempt was made by the State at trial to bolster the credibility of Nita Neary by its use.
Indeed, after the hypnotic session was over, Nita Neary disclaimer any extraneous details extracted by Dr. Arroyo during the session. (R-8500-8503).
IDENTIFICATION
The Supreme Court in Manson. Brathwaite, 432 U. S. 98, 97S.Ct. 2243 53L.Ed.261 140 (1977) found that the "per se rule" concerning suggestive identification is too rigid. Cf. Neil.
(1) The opportunity of the witness to view the criminal at the time of the crime.
(2) The witness's degree of attention.
(3) The accuracy of the witness's prior description of the criminal.
(4) The level of certainty demonstrated by the witness at the confrontation.
(5) The time between the crime and the confrontation.
Against these criteria the corrupting effect of the suggestiveness of the identification itself is weighed. Applying the Manson. Brathwaite criteria to the facts of this case:
(1) The opportunity to view. Nita Neary saw the assailant only fora short period of time (about three seconds) but fora long enough period of time to describe his prominent, straight bridged protruding nose; (R-8480; 8481; 8520); his dark complexion (R-8480); his slight build, around 5'8"-5'10" (R- 8479); his approximate weight of 160 pounds3 (R-8480); his race and sex (white male) (R-8479); his (dark navy blue) jacket extend ing below the belt (R-8480); his light colored pants (R- 8480); his stocking cap pulled down over the eyebrows (R-8480);
his clean shaven face (R-8480); his age (somewhere in the mid- 3Nita Neary admitted that she was not very good at approximating weight. (R-8480).
As found by the Court and supported by the evidence, there was sufficient light for the witness to make these observations.
(R-6692; 8475; 5854 "quite a few lights on"; 5812 "sufficient... to write."; 7292 "Chandelier... pretty bright.")
(2) The degree of attention: Nita Neary, in the Court's opinion, was not a casual observer. (R-6692). She was an art student attending college who was not surprised at the time of her view. (R-6692; 8470; 8485 (sketch procedure outlined). She thought, in fact, it was a boyfriend staying over at the house or the houseboy. (Ronnie Eng) (R-8482; 8502). It was not Ronnie Enq. (R-8503). Immediately thereafter, she gave the description in paragraph one above to her roommate (Nancy Dowdy; R-6358) and maintained that description without significant variance from its first utterance. (Cf.R-6358; 6361-6362 with, say, R-8482).
Nita Neary saw Appellant from about 12 feet away (€2-5873- 5874). Although she had had a few beers that night, she was definitely - not intoxicated. (R-8473).
(3) The accuracy of the description: Appellant possesses all of the above descriptive characteristics and did not contest the accuracy of these characteristics at trial.
Although Appellant is slightly taller, and somewhat older, the Court found that none of the predominant identifying characteristics shown were - not descriptive. (R-6692). As mentioned earlier, Appellant, waiving any complaint that might otherwise have existed, compared himself to Ronnie Eng before the jury. (R-9323-9330).
(4) The witness's level of certainty: At the risk of repetition, there was no deviation by the witness in her descriptions since her first utterance of it. Nita Neary was concerned about what happened, and did not appear to be sick or overly excited shortly after her encounter with Appellant. (R- 5878; 5887). She described to what the Court called "an army of police officers" her encounter with Appellant and underwent hypnosis. (R-6693). The only significant varying factor after her hypnotic session was the hair testimony heard by the trial court and repudiated by her at trial. (R-8501). The hair testimony was of no aid in the identification of Appellant. (Reh time before the confrontation: The witness was shownka picture "+ April 7 after Appellant's arrest an February 15 of the same year. (R-8586; 8613). The trial court found that this period of time was not too remote to invalidat # the identification. (R-6693). J The description of Appellant was given within minutes after having seen Appellant in the Chi Omega house. (R-5702- 5703; 5706-5707; 5776; 5800). The identification three months later was based on the same description that was given immediately after having originally viewed Appellant and there were no material variance between the descriptions over any time 5800 (as told to Officer Brannon); 6467-6468; 6361-6362 (as told to and by Nancy Dowdy, Nita Neary's roommate); 6375 (as told to Artist Kenniston, who drew the sketches which form a part of this record); 6388-6390; 5730-5731; 5776; especially 5778-5779; 5804;
Testimony adduced conclusively shows that there was no coercive pressure on Nita Neary in order for her to make an identification of a particular individual. To the contrary, she was warned to be careful, warned not to look at news photos, and ina conversation to the police department related that she could not promise anything. (R-6412-6413). Any newspaper photos that she might have viewed previously to the photo identification lineup were not corrupting because they (1) did not influence her and (2) were not profile photos. (R-8590-8591). This is significant because Nita Neary had only seen a profile view of Appellant in the Chi Omega foyer. (R-8591).
Of significance to the Court was Nita Neary's statement in the telephone conversation related above that she couldn't promise anything because it guaranteed to the Court the "absolute purity in [sic] her intentions." Any identification that she made was made with reflection and care. (R-6694; 8506; 8508).
The photographic lineup session was taped, the tape offered into evidence, and played before the Court. (R-8589- et seq.).
See also R-8503 and (for a transcription of the tape) (R-5948-5952).
Ten pictures were used in the photographic lineup. (R- 6695; 8584). The pictures were a11 profile views. (R-5946).
Nita Neary was not told by Captain Poitinger that Appellant's picture was one of the ten. -- (R-5946). (See also-8592; 8598).
Initially, she apparently singled Appellant's picture out along with one other picture. (R-6695; 8592-8593). On second reflection, after some deliberation as indicated by the tape of the identification process, she singled out Appellant's picture.
(R-6695; 8592-8593).
The trial court found that if there was any attempt to taint the identification process by virtue of indicating Appellant's presence, (by his picture in the lineup) it was not communicated to Nita Neary, and she was deliberate and careful in evaluating her selection and giving her opinion. (R-6695; 8592- In considering the totality of the circumstances, the trial court found that there was no substantial likelihood of irreparable misrepresentation by Nita Neary or by the identification process. (R-6695).
AS reflected by Manson. Brathwaite, supra, at 116, 53 Surely, we cannot say that under all the circumstances of this case there is "a very substantial likelihood of irreparable L.Ed.2d 1247, 88 S.Ct. 967. Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.
As noted by the trial court, the hypnosis and identification issue resolves itself to whether the witness was identifying Appellant fully on the basis of her memory of the events at the time of the crime or whether she was merely remembering the person she picked at the pretrial identification procedure. (R-6696).
As found by the trial court4, considering the totality of the circumstances, and the likelihood of irreparable misidentification concerning the testimony of all the witnesses, Nita Neary saw Appellant exit the house, carefully described what she saw, and did not deviate from that description from her first observation through and including her testimony in court. (R- 4Who was even so patient and careful in his judgment as to consider the testimony of Appellant's and Mr. Haggard's "eyewitness identification expert," Dr. Buckhout who, of course, was not present when Nita Neary first saw Appellant in the Chi Omega foyer, (R-6206-6266).
ISSUE E
COUNTS ONE THROUGH FIVE AND COUNT SIX
AND SEVEN NEE PROPERLY JOINED.
CONSEQUENTLY, THE TRIAL COURT DID NOT
ERR IN REFUSING TO SEVER COUNTS ONE
THROUGH FIVE FROM COUNTS SIX AND SEVEN.
Appellant argues that Counts One through Five were separate and distinct crimes from Counts Six and Seven, that they were improperly joined, and that his rights to a fair trial were abridged when the trial court refused to sever the former from the latter, AS Appellant's two arguments (improper joinder and prejudicial denial of his motion to sever) are facets of the same argument, they will be dealt with together.
(1978). Appellant must demonstrate that the trial court abused its discretion in denying his motion for severance. Dove v.
F1a.R.Crim.P. 3.150(a) provides for the joinder of offenses and F1a.R.Crim.P. 3.152 provides for the severance of improperly joined offenses. The former rule provides that offenses which are triable in the same court may be charged in the same indictment ina separate count for each offense where the offenses are based on the same act or transaction or on two or more connected acts or transactions. The latter rule provides for severance where two or more offenses are improperly charged. Basically, offenses are improperly charged if there lisa showing (before trial) that a severance is appropriate to promote a fair determination of the defendant's guilt or (during trial) where, upon the defendant's consent, a severance is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense.
The joinder of Counts One through Five with Counts Six and Seven was proper because:
(1) The crimes committed in those counts were part of one continuous action, and
(2) They were part of the same common scheme, plan, and course of conduct, admissible under Williams v. State, 110 cert. - According to the prosecutor, and as supported by the evidence, the similarities between the crimes are as follows:
FACTUAL BASIS OF COUNTS ONE THROUGH FIVE
(THE CHI OMEGA CRIMES)
(1) The offenses at Chi Omega took place between 3: OO and 3:15 a.m., the morning of January 15, 1978. (R-7060;
7166; (crime discovered around 3:14 a.m. R-7293); officers arrived around 3:23 a.m. R-7194).
(2) All four victims at the Chi Omega House were female;
young; white; FSU students. (R-7060; 7780-7781 (identification of the two deceased Chi Omega victims)).
(3) A ll four victims were assaulted while asleep in their bed. (R-7061; 7223 (Margaret Bowman); 7299 (Lisa Levy);
7323 (Karen Chandler); 7226 (Kathy Kline). All four victims were beaten severely about the head, apparently by a burgler, witha blunt object. (R-7061; 7223; 7323;
(4) One victim was strangled with pantyhose and pantyhose was found in Lisa Levy's bedroom. (R-7061; 7481; 7689;
7551; 7553 and see state ' s exhibit 3 3.)
FACTUAL BASIS OF COUNTS SIX AND SEVEN
(THE CRIMES COMMITTED AT THE DUNWOODY RESIDENCE)
(1) Forty-five minutes later, at approximately 4: OO a.m.
on the same morning, a young, white female FSU student, asleep in her bed, was beaten about the head severely, apparently by a burgler. (R-7458; 7061; 7462). The Dunwoody residence where Cheryl Thomas was beaten was approximately eight blocks from the Chi Omega House (about two miles). (R-7360). The Dunwoody residence was a small residential area near the college campus. (R-7409).
(2) Beside the bed, in Cheryl Thomas' apartment, pantyhose was found, apparently used asa mask, which did not belong to the victim. (R-7426; 7360; 7369; 7427;
(3) In the pantyhose mas1 apparently left by the butler, lab experts found hair similar to Appellant's hair (R-
(4) Cheryl Thomas' neighbors apparently heard the beating while it was being administered to her and called her apartment, which resulted in the fleeing of Appellant prior to the consummation of what would have been indubitably a lethal act. (R-7061; 7332-7333; 7353).
All victims were bludgeoned witha blunt object. A stick with blood on it was found at the Dunwoody residence and the assa ant at Chi Omega (as described by Nita Neary) had stick 01: club in his hand. (R-7454-7455 (Dunwoody); R-7167; 8478 (Chi Omega)).
Appellant's activity at the Chi Omega house and the Dunwoody residence was a continuous course of criminal activity that started at the one and was consummated at the other. His criminal signature was indelibly imprinted in the victims with blood, bludgeon and sticks, and pantyhose. The fact that Cheryl Thomas was not strangled with the pantyhose found is irrelevant;
Instructive in this context is this Court's decision in Ruffin v. State, 397 So.2d 277, 280-281 (Fla. 1981), citing Smith v. State, 365 So.2d 704, 707 (Fla. 1978), holding that collateral crimes may be admitted under the Williams' Rule where they go to establish the entire context out of which the criminal action arose:
In our recent decision of Smith v.
State, 365 So.2d 704 (Fla. 1978), relying upon Ashley v. State, we recited that among the other purposes for which a collateral crime may be admitted under Williams is establishment of the entire context out of which the criminal action occurred. We said:
At trial the state's theory was that, as Johnson testified, the two murders occurred during one prolonged criminal episode. The three perpetrators met together and planned a robbery. The rest of the night was devoted to the robbery, its concealment, and the allocation of the proceeds. From the time the parties met and conspired to commit robbery, there was an unbroken chain of circumstances relating to and flowing from the robbery.
Because of the robbery two related murders occurred within a short time of one another.
Additionally, the testimony concerning the second homicide is relevant to place Smith at the scene of the first, since it shows that he was with the people involved in the initial homicide just an hour after it took place.
He was also placed by this evidence ina car which was directly linked to the scene of the first murder.
Similarly, in Malloy v. State, 382 So.2d 1190 (Fla. 1979), the Defendant was prosecuted for murder, kidnapping, and robbery. This Court held the testimony regarding a prior incident at a lounge where Malloy pulled out a rifle from the car in which he had been riding was properly admitted since it was one incident ina chain of chronological events relating to the commission of the crime. - Id. at 1192.
Likewise, in Antone v. State, 382 So.2d 1205 (Fla. 1980), testimony was admitted in the Defendant's trial implicating him in criminal activity other than the activity for which he was being tried. This Court held that activity properly admitted as part of the primary arrangement regarding Antone's involvement in contract murder and was therefore relevant to show the existence of a conspiracy. - Id. at 1213.
Here, evidence in this case is obviously part of one single continuous criminal episode. Appellant started his murderous criminal activity at the Chi Omega house and consummated his criminal activity at the Dunwoody residence.
Appellant's identity and presence was established at both. (At Chi Omega, by Nita Neary's description and the scientific evidence; at Dunwoody, by the scientific evidence.)
14. Because of the disjointed time sequence, Judge Smith reasoned, and the Florida Supreme Court agreed, that the rapes were too unrelated to have been properly joined. Not at issue were the rapes committed on the same day within an hour of each Unlike here, where the events that occurred were both related in terms of time and (spatial) sequence.
other against different victims, residents of nearby dormitories, on the Florida State University campus:
Paul appeals from convictions in the Circuit Court of Leon County on information No. 77-425, charging attempted sexual battery by vaginal or anal rape of a young woman resident of a Florida A & M dormitory early in the morning of April 9, 1977, and on count one of information No. 77-560, charging sexual battery by vaginal and anal rape of another young woman resident of a Florida State University dormitory about 5: OO a.m. on May 14, 1977.
Counts two and three of No. 77-560 charged attempted sexual battery and battery of still another young woman visitor to another Florida State dormitory on the same early morning, May 14, 1977; and on counts two and three, lacking positive identification testimony, the jury acquitted Paul.
The informations were consolidated for trial on motion of the State, over objection by the defendant. There is no questions here of the propriety of charqinq and trying together, in Case No. 77-560, the sexual offenses committed within an hour on different victims in nearby FSU dormitories. AT issue is the propriety of consolidating Paul's trial for sexual offense committed on April 9 with those committed May 14. I dissent from the court's decision which apparently holds that consolidation was authorized by (emphasis added) Here, as in the criminal activity which occurred in Paul. State, on May 14, 1977, Appellant's crimes at Chi Omega and Appellant's crimes at Dunwoody occurred within 45 minutes of each other on the perimeter of the same campus.
Further, Appellant has failed to establish that the trial court abused its discretion in refusing to allow the severance (or by improperly jaining the counts in the first place) because he's failed to show that he was prejudiced by his joint trial on all counts. Appellant's argument in the lower court was that there was more evidence against him in the Chi Omega counts than there was in the Dunwoody counts. Appellant planned to put on scientific evidence in the Chi Omega counts but not in the Dunwoody counts. Appellant planned to testify on the Dunwoody counts but not the Chi Omega counts. Consequently, because of the procedural trial rules of Florida, were the trials separate, Appellant could take the stand in the Dunwoody caunts, present no other evidence, and have the right to opening and closing argument before the jury. As Appellant's argument goes, he was unable to do so because the offenses were joined and the trial court refused to sever them, resulting in "procedural prejudice."
Appellant's argument of prejudice is not legally substantial. In Alvarez v. Wainwriqht, 607 F.2d 683 (5th Cir.), after reviewing Florida law on the subject, the Fifth Circuit rejected a similar argument. There, the Defendant had been charged with two counts of manslaughter by culpable negligence, two counts of manslaughter by an intoxicated motor ist, temporary unauthorized use of a motor vehicle, and larceny of a firearm.
Arguing that he was prejudiced by the severance because he wished to testify on some counts and not others, the Defendant sought habeas corpus relief.
In rejecting that relief, the Fifth Circuit noted that severance for this reason, as for any other reason, remains in the sound discretion of the trial court and that the simultaneous trial of more than one offense must actually render a defendant's state trial fundamentally unfair before the failure to sever is violative of due process. - Id. at 685.
Appellant improvidently relies upon United States.
IN Foutz, the robberies were not part of one continuous course of action. They took place two and one half months apart and were so dissimilar that one of the robberies was committed by one individual, and the other by three individuals. Id. at 735.
In Ashley, it was the Defendant seeking a motion to consolidate, not the State. In order to be successful regarding the motion to consolidate, the burden was on the Defendant to show that he was not prejudiced by the trial court's failure to consolidate the crimes. As noted by this Court in Ashley, consolidation rests in the sound discretion of the trial court and the Defendant in Ashley failed to show that he was prejudiced in the preparation of his defense (which is what he alleged) by the failure to consolidate. Here, Appellant's action was one continuous course of conduct, he was not legally prejudiced by the joinder, and the crimes were committed ina similar manner (by burglary and bludgeoning).
In Rubin, the eight counts of sexual battery committed by the Defendant OCCUKK ~on three separate incidents, on October 21, 1979, February 2 3, 1979, and June 9, 1979. They were obviously not one continuous course of events related to each other in either time or sequence.
Appellant was not legally prejudiced by the joinder of the offenses and the trial court did not abuse its discretion in refusing to sever the offenses.
ISSUE F
THE JURY SELECTION PROCESS DID
NOT VIOLATE THE WITHERSPOON
DOCTRINE.
Appellant argues that the rejection of potential jurors Westbrook and Constance violated the principles of Witherspoon v.
In Magqard v. State, 399 So.2d 973 (Fla. 1981) this Court noted that if a defendant does not want a potential juror excused, he should make his objection known prior to the excusal of that potential juror.
Additionally, the trial court and both sides extensively discussed the law surrounding a "Witherspoon" challenge. (R- 4029-4032. The court stated:
So, the Court is clearly understood, we will exercise cause only for prospective jurors who indicate they could not and would not reach a verdict of guilt if the penalty might result in death. I think that's the criteria in that standard that we are going to follow. (R - 4032).
With these general principles in mind, the circumstances surrounding each potential juror's Witherspoon inquiry will be dealt with separately.
POTENTIAL JUROR WESTBROOK
Pursuant to the principles set forth in Witherspoon v.
Illinois and its progeny, the prosecutor thoroughly examined potential juror Westbrook:
MR. MCKEEVER: Does the death penalty cause you a problem you would not be able to reach a verdict in the first phase?
MISS WESTBROOK: Yes, it would.
MR. MCKEEVER: Judge, I would ask she be excused for cause.
(R-4266-67). (Emphasis added).
MR. MCKEEVER: I feel like I already asked you this question. Under Florida law if it's murder in the first degree, guilty of that crime -- THE COURT: Mr. McKeever, I think this is where the problem is. The question to profound to the juror I think really could she return if the evidence warranted it a verdict of first degree knowing that that might subject the defendant to the death penalty. That's the question.
MISS WESTBROOK: No.
MR. MCKEEVER: Thank you very much.
(R-4271). (Emphasis added).
THE COURT Let me ask the question, madam juror. The Court again asks the question would you be able to return a verdict of guilty of first degree murder if the evidence warranted it knowing that that crime has a punishment, a possible punishment of death?
MISS WESTBROOK: No.
THE COURT: All right. The Court will excuse her for cause.
Let's call the next juror.
State your objection in the record.
MR. HAGGARD: All right.
(R-4273-4274). (Emphasis added) Pursuant to Maqqard v. State, supra, this Court should refuse to reach the merits of the Witherspoon issue because Appellant's counsel refused to specifically state his objection on the record. When asked to state his objection on the record, Appellant's counsel said " all right." (R- 74). See also Brown
v. State, 381 SO. 2 d 690 (Fla. 1980).
If this Court does reach the merits of the Witherspoon issue, the State submits that the foregoing exchanges between the potential juror arid her questioners were sufficient for her excusal. Juror Westbrook's attitude toward the death penalty would have prevented her from making an impartial decision as to Appellant's guilt. (R-4266; 4271; 4274). It was made perfectly clear to potential Juror Westbrook that death was only a possible punishment if Appellant was found guilty. (R-4274).
Potential Juror Westbrook was properly excused. See Brown
v. State, supra, at 694 and cases cited therein.
POTENTIAL JUROR CONSTANCE
Likewise, Appellant's counsel failed to properly preserve his objection to any violations of Witherspoon v. Illinois in regard to Juror Constance (R - 5394 - 5395).
On the merits, potential Juror Constance indicated that the possible imposition of the death penalty would impair his ability to decide Appellant's guilt or innocence:
MR. MCKEEVER: And that the penalty for murder in the first degree, should your verdict be guilty, might be the imposition of the death penalty by the Judge. Does that give you any hesitation at all?
JUROR CONSTANCE: Yes, sir, it does.
MR. MCKEEVER: Could you explain that to JUROR CONSTANCE: Well, I am not a very deeply religious person, but I don't believe anyone has the right to take another life.
MR. MCKEEVER: Okay.
(R-5390).
My question to you is: Knowing about the death penalty, second phase, could you return a verdict of guilty of murder in the first degree if you were satisfied we had proven the case? Could you return that verdict knowing that it might lead to the imposition of the death penalty?
JUROR CONSTANCE: I don't know. 1 really don't know ifI could.
MR. MCKEEVER: Well, take a few minutes and decide because we need to know.
JUROR CONSTANCE: Well, possibly not because of my own beliefs.
(R-5391).
THE COURT: Would you be able to return a verdict of guilty of murder in the first degree, assuming that the evidence that you found to be credible beyond and to the exclusion of a reasonable doubt, brought you to that conclusion, knowing that by that finding, you would be subjecting someone to the death penalty?
JUROR CONSTANCE: No, sir, I don't believe so.
THE COURT: Grant the motion.
MR. MCKEEVER: Thank you, Judge.
THE COURT: You may be excused. And thank you for your candor and frank ness. And you don't need to be afraid of the law, in all candor.
(R-5394-5395).
As in Williams v. State, 228 So.2d 377, 381 (Fla. 1969), vacated on other grounds, 408 U. S. 941, 92 S.Ct. 2864, 33L.Ed.2d 765 (1972) potential Juror Constance made it clear that his decision as to guilt or innocence might well be affected by his attitude towards the death penalty.
The excusal of potential Juror Constance pursuant to the principles of Witherspoon v. Illinois was proper.
The jury selection process did not violate the Witherspoon doctrine.
ISSUE G
THE COURT DID NOT ERR IN DENYING
APPELLANT'S CHALLENGE TO THE GRAND
JURY NOR WAS APPELLANT DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL IN
REGARD TO APPELLANT'S GRAND JURY
CHALLENGE.
Appellant seeks to entrap the State ina circular argument which works as follows:
(1) Section 905. 0 5, Florida Statutes (1979 et seq.)
requires a challenge to the grand jury to be lodged before its impanelment.
(2) Because he was not notified that the grand jury that convened on or about June 5, 1978 was going to indict him on his capital charges, his grand jury challenge subsequent to that time was timely.
(3) If, as Judge Rudd held, he was placed on notice that the grand jury was convening for the purpose of indicating him for his capital crimes because "of the bite mark search and seizure, 2 6 April, 1978," he had a right to counsel at that point because it was a critical stage of the proceedings.
(4) If his counsel who had been appointed on related charges did not perfect his rights at that point, his counsel was obviously ineffective. Thus, no matter how the coin is tossed, the result is the same: heads, Appellant wins; tails, the State loses.
The trial court held two significant hearings concerning Appellant's entitlement to challenge the grand jury. The first, took place July 21, 1978, before Judge Rudd, and the second, May 16, 1979, took place before Judge Cowart (SR-266 et seq. and R- At the first hearing, Appellant argued that he was entitled to challenge the impanelment of the grand jury retroactively because it was a critical stage of the proceedings, for which he was entitled to counsel (SR-274); that a grand jury impanelment challenge is an adversary proceeding; and that his circumstances fit within the exception of the statute which allows a belated attack upon the impanelment of the grand jury. (SR-271-277).
Appellant's challenge to the grand jury was filed on July 20, 1978. (R-714). The grand jury was apparently impaneled n June 5, 1978. (R-716). Appellant had filed other motions concerning the grand jury on July 18, 1978. (R-706; 708; 710).
The Court orally entered its order at the end of the hearing, denying Appellant's attack on the grand jury and refusing to appoint Appellant public assistance counsel. (SR- Subsequently, the Court reconsidered its position concerning the appointment of public counsel and entered an order on July 24, 1978 appoint ing the public defender to Appellant for purposes of any grand jury challenges that Appellant might pursue.
Thereafter, on August 1, 1978, nunc pro tune July 25, 1978, Judge Rudd entered his written order denying Appellant's challenge of the impanelment of the grand jury. (R-716-717).
(See also SR 285-286). The substance of that order was:
(1) Appellant knew or had reason to believe by virtue of a search warrant served on him April 27, 1978, that he was being investigated by the grand jury in connection with the Chi Omega homicides.
(2) The grounds for Appellant's grand jury challenge were known to him by virtue of Appellant's Motion for Change of Venue detailing pretrial publicity from January through May, 1978.
(3) As the grounds for Appellant's challenge of the grand jury were known prior to its impanelment Appellant was estopped from raising such a challenge belatedly, The trial court relied upon Seay v. State, 286 So.2d 532 (Fla. 1973), cert. den. 419 U. S. 847, 95S.Ct. 84, 42 L.Ed.2d 77, and Sections 905.02 - 905.05, Florida Statutes. (R-717).
Subsequently, and before Judge Cowart, Appellant was allowed to reopen his grand jury challenge -- in toto. (R-2759).
At the hearing before Judge Cowart, Appellant's lawyer(s) admitted that (1) they first presented the grand jury challenge to Judge Rudd and the request for appointment of counsel on July 21, 1978 (R-2655); (2) that they were aware of the purpose and grounds for the grand jury challenge in May and June of 1978, prior to the impanelment of the grand jury (R-2650); (3) that no courtroom proceedings took place between Friday, July 21, 1978, when Judge Rudd denied appointment of counsel and Monday, July 2 4, 1978, when he reconsidered his earlier decision and appointed counsel for Appellant (R-2657); (4) that Appellant was abandoning all other challenges other than his primary challenge concerning publicity affecting the grand jury and that they (defense counsel) agreed that the panel as constituted was not tainted (R- At the conclusion of the hearing, Judge Cowart denied Appellant's motion to quash the indictment.
Replying to Appellant's "heads I win--tails you lose argument," several points should be noted. First, grand jury proceedings are not adversary in nature. Antone v. State, 382
So.2d 1205 (Fla. 1980). See also Gerstein v. Puqh, 420U. S. 103, Rights to Assistance of Counsel at or Prior to Arraignment," 5
A.L.R.3d 1269-1351 and 1981 pocketpart at 174.
851, 95S.Ct. 9 3, 42 L.Ed.2d 82. As noted earlier, if Appellant did have a color able claim for the challenge of the grand jury's composition, he in effect abandoned it at the hearing on the motion to quash.
Going further, Appellant had no right to appointed counsel prior to his indictment although he had appointed counsel on other charges. United States. Halley, 431 F.2d 1180 (9th Cir.
(1970). Notwithstanding this, after reconsideration, Judge Rudd allowed Appellant appointed counsel. In light of this, had Appellant raised his grand jury challenge ina timely fashion, (i.e., prior to the convening of the grand jury), Appellant would have been allowed to challenge the grand jury. Certainly, Judge Rudd's reversal on the appointed counsel situation -- regardless of whether Appellant was entitled to appointed counsel or not -- is a prima facie indication that Judge Rudd was (1) reasonable and (2) determined to err if err at all on Appellant's side.
There certainly is no question but that Appellant's counsel was well aware that the grand jury was going to convent on June 5, 1978 (SR-280); the only remaining question is why Appellant didn't timely exercise his challenge.
This brings us to the trap that Appellant has laid for the State. Counsel, so Appellant's argument goes, must have been ineffective because if the State is right, counsel erred in not challenging the grand jury.
The truth of the matter is that Appellant's challenge to the grand jury was sheer speculation, a shot in the dark, a tactical decision engaged in to (1) preserve the issue for appeal and (2) turn up whatever prejudice that it could. Dykman, supra. Looking at the issue from the opposite end, it's obvious that notwithstanding all the documents and clippings incorporated by reference asa part of Appellant's motion to challenge the grand jury, Appellant didn't have any evidence whatsoever that the jury itself, notwithstanding this publicity, was tainted. This is particularly so because Appellant's attorney (who wasn't even his attorney at the time) didn't have anything at the time that he filed the motion or he wouldn't have asked for the five day continuance that he asked for, which was denied. (R-2660).
Comments on two of Appellant's cases are necessary.
Appellant, on Page 9 2 of his brief, states that " A grand dry proceeding is not itself an adversary proceeding, but the challenge to a grand jury is", relying upon State ex re1 Ashman
v. Williams, 151 So.2d 437 (Fla. 1963). The State has carefully read that case and cannot find any statement that supports Appellant's position within the case. Presumably, Appellant is arguing that by implication the case supports his proposition that the challenge to a grand jury is an adversary proceeding because an order to show cause was issued to the Attorney General as respondent. Whether issued OK not to another party, the presence of an order to show cause ips0 facto does not change a nonadversarial hearing into an adversarial hearing.
S.Ct. 167, 100 L.Ed 77 (1955) is misplaced. In Reece, the Defendant was an illiterate unable to challenge the grand jury himself. Subsequent to his indictment, counsel was appointed who attempted to challenge the grand jury in the face of a procedural rule which prohibited challenge to a grand jury after its impanelment. Strong evidence was presented that the grand jury's constitution was improper. Because of the strong showing of the evidence that the composition of the grand jury panel was tainted, and because Appellant was not afforded an opportunity to challenge the grand jury prior to its impanelment, the Supreme Court allowed Reece (through counsel) a belated challenge of the grand jury impanelment.
Heze, Appellant had every opportunity to challenge the grand jury panel prior to its impanelment. Appellant was on notice by virtue of the search and seizure incident that the grand jury was going to consider the capital crimes that he committed, he was notified that the grand jury was going to meet on or about June 1, 1978, and he was aware prior to that date of the basis of his challenge. (R-716-717). Appellant made no effort to have counsel appointed for him on his behalf during this period of time for this purpose. Judge Rudd's willingness to reconsider his order is a good indication that had Appellant been timely with his challenge, he would have been appointed counsel and he would have been allowed to challenge the grand jury. Further, Appellant has made no showing that he would have been successful in his challenge of the grand jury, thus eliminating any prejudice and "ineffective assistance of counsel" that he otherwise believes existed.
The trial court did not err in denying Appellant'sgrand jury challenge nor was Appellant deprived of the effective assistance of counsel in regard to that challenge.
ISSUE H
THE TRIAL COURT DID OT ERR IN
ADMITTING THE BITE MARK IDENTIFICA-
TION OPINION TESTIMONY.
Appellant attacks the admissibility of the bite mark identification opinion testimony on five grounds:
(1) Admissibility - vel -1none
(2) Qualifications;
(3) Factual basis;
(4) Opinion on guilt;
(5) Standards.
Each attack will be dealt with separately and concisely.
1. ADMISSIBILITY VEL NON
Appellant admits that the authorities are region which support the admissibility of bite mark evidence. The State sees no reason to repeat Appellant's laundry list of courts which have allowed bite mark evidence.
Prior to admitting the bite mark evidence, the Court took testimony from both sides ' experts, heard argument from opposing counsel, and considered the various and sunday authorities regarding bite mark evidence. (R-2685-3343). The Court specifically considered the following legal authorities before ruling that the bite mark evidence was admissible: People.
Milone, 356 N.E.2d 1350 (111. 2nd Dist. Ct. App. 1976); People.
Allah, 376N.Y.S.2d 399 (SCNY 1975); People. Marx, 126 CaP.
Rptr. 350, 54 Cal, App.3d 100 (Cal. 2d Dis Ct. App. 1975);
People. Slone, 143 Cal. Rptr. 61, 76 Cal. App.3d 611 (Cal. 2d Dist. Ct. App. 1978); Miller v. Harvey, 566 F.2d 879 (4th Cir.
(1977); Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA (1968), cert.
United States, 5 4 App. D.C. 4 6, 293 Fed. 101 (1923); State.
Kendrick, 572 P.2d 354 (Ore. App. 1977); People. Palmer, 145 Cal. Rptr. 466, 80 Cal. App.3d 239 (Cal. 1st Dist. Ct. App.
1978); State. Johnson, 289N.E.2d 722 (Ill. 3d Dist. Ct. App.
(1972); People. Watson, 142 Cal. Rptr. 134, 75 Cal. App.3d 384 (Cal. 1st Dist. CT. App. (1977); State. Garrison, 585 P. 2d563 (Ariz. (1978). (R-3340-3341).
The Court's decision that the science of odontology has reached a position of general acceptance among the profession is supported by the cited authorities. Bite mark evidence is as probative as say, hair analysis, which never results in the positive identification of an individual and which this Court has found admissible. Jent v. State, 400 So.2d 1024, 1029 (Fla.
(1982) and Peek v. State, 395 So.2d 492 (Fla. (1980). The science of odontology was certainly more developed at the time the trial court allowed the introduction of the bite mark evidence than was the science of determining the presence of succinylcholine chloride at the time the trial court in Coppolino v. State, supral admitted Drs. Helpren and Umberger's testimony against Carl Coppolino. - Cf. the foregoing cases, and particularly the appendix at the end of State. Saqer, 600 S.W.2d 541, 578-579, (Mo. West. Dist. Ct. App. (1980), cert. den. 450U.S. 910, 101 The only question before the Court is whether the science of odontology is so unreliable and scientifically unacceptable as to have precluded its admission by the trial court. Coppolino v.
State, supra; Jent v. State, supra, at 1029. I4 trial court has wide discretion regarding the admissibility of evidence and its ruling should not be disturbed on appeal unless an abuse of discretion is shown. Jent v. State, supra, at 1029; Turner v.
State, 388 So.2d 254 (Flat.1st DCA 1980).
As no abuse of discretion by the trial court has been demonstrated by Appellant, the bite mark identification testimony was properly admitted.
2. QUALIFICATIONS
Appellant, in launching his attack upon the bite mark evidence, has adopted the three-part rule found in State.
Saqer, supra, at 561:
(1) Hasthe science of bite mark identification developed to such a degree as to its reliability and credibility to permit its use as evidence in criminal proceedings?
(2) Does the evidence show OK establish the qualifications of the state's witnesses as experts, enabling them to render an expert opinion?
(3) Was the factual basis which served as the basis for expert opinions herein supported by reliable and credible evidence?
Appellant, virtually conceding that the first requirement of the Saqer Court has been met, hones in under this subheading on the qualifications of the State's chief witness, Dr. Souviron, to testify. Specifically, Appellant's attack under this subheading does not seem to go so much to Dr. Souviron's se, as it does towards Souviron's impartiality qualification per - asa witness because of an incident that occurred at a professional conference in Orlando.
First, Dr. Souviron's credentials as an expert odontologist were impeccable. (R-8652-8665). Among other qualifications, Dr.
Souviron was one of the found ing members of the Odontology Section for the American Academy of Forensic Scientists as well asa diplomat of the American Board of Forensic Odontology. At the time of trial, Dr. Souviron was also Chairman of the Examining and Credentialing Committee for the American Board of Forensic Odontology. (R-8655). Dr. Souviron was the only expert Odontologist in Florida. (R-2694). Further discussion of Dr.
Souviron's credentials is unnecessary and mention is made of them only to show that the second prong of the Sager Test was met by the State's chief witness.
Second, Dr. Souviron was as fair and impartial a witness as any expert witness could be expected to be, notwithstanding the publicity surrounding the professional conference in Orlando.
Prior to trial, Appellant argued a Motion to Strike Dr. I Souviron's testimony. (R-3346). In attendance at a professional,' conference at Orlando, Dr. Souviron had discussed the of bite mark impressions from Appellant's mouth before the professional body but without mentioning Appellant's name. (R- Before making its ruling, the Court (1) viewed the tape of the proceedings of the professional conference, (2) heard argument from counsel, and (3) reserved its ruling until it took testimony from Dr. Souviron. (R-3346; 3355-3357).
Prior to the actual testimony of Dr. Souviron, Appellant renewed his motion. (R-8634). Prior to the renewal of Appellant's motion, the Court reviewed the tape again. (R-8634).
The question confronting the Court was whether Souviron's lecture was public. (R-8635). The Court carefully examined Dr.
Souviron, who stated that the meeting was closed to the public, that he (Souviron) was not aware of Judge Minor's closure order, and that he could testify objectively at trial. (R-8636-8639).
After properly inquiring into the circumstances surrounding Dr. Souviron's lecture at the professional conference, the Court denied Appellant's Motion to Strike, promising to give extra preemptory challenges to Appellant to cure any taint that otherwise might still exist. (R-3357; 8640-8641).
As recognized by Appellant in his pre-trial argument, the action taken by the Court was solely within its discretion. (R- 3352). Consequently, unless the Court abused its discretion, Appellant's Motion to Strike was properly denied. In Strawn v.
State ex rel. Anderberg, 332 So.2d 601, 602-603 (Fla. 1976), this Court had an occasion to comment upon the exercise of discretion by a trial judge:
However, we cannot agree with the District Courtls determination that the trial judge erred in declaring a mistrial and that, therefore, jeopardy attached and the charge against respondent should be dismissed. The constitution does not guarantee a defendant a perfect trial (which would be difficult if not virtually impossible), but it does guarantee a fair trial. The trial judge is the man on the ground in full view of the premises. In the conducting of a complicated criminal trial, he finds it necessary to rule many times and, like the referee in an athletic contest, must rule quickly. Generally speaking, he has neither the time, convenient library, nor a staff to research each legal and evidentiary question with which he is confronted ina fast moving trial. It is, therefore, necessary that he be given broad discretion in disposing of such matters.
Here, like Judge Strawn, the trial judge was the "man on the ground in full view of the premises" and like the referee in an athletic contest, ruled quickly and properly, preserving Appellant's right to a fair trial.
3. FACTUAL BASIS
Appellant argues that the third prong of the Saqer Test was not met by the State because no expert in the field of photography authenticated the relationship between the original negatives of the bite mark on Lisa Levy's left buttock, the "onto-one prints," and the blow ups made from the one-to-one prints.
State's Exhibit Number 96 (3-E for identification purposes) is a one-to-one color photograph of Lisa Levy's buttocks witha yellow ruler in it for scale purposes; State's Exhibit Number 97 (Exhibit 3-F) is a black and white photograph of Lisa Levy's buttocks witha ruler in it for scale purposes. From these photographs, "blow ups" on six and a half to one scale were made. (R-8693).
Pretrial testimony included testimony by DR. Souviron on the accuracy of these photographs and how they were prepared (R- 2696; R-2716) and testimony by John Valor, the forensic photographer, who testified about how to make "one-to-one" photographs to scale. (R-2719-2721).
Photographs of the crime scene were taken by Sergeant Winkler (R-2776) witha 35 millimeter Pentex camera, which had 50 millimeter senses, with the lens setting at 16 and the shutter speed at 60. (R-2779). Winklex took the original photographs from a distance of two feet from the body with the use of a stroke light and his camera, (R-2780).
The blow ups were made by Valor at Souviron's direction.
(R-2814).
At trial, and before the jury, Dr. Souviron testified that State's Exhibits 96 and 97 were accurate to a scale of "one-toone" to the original photographs. Souviron compared the ruler which he received in the mail to the ruler in the picture and determined that they were one and the same. (R-8666). The ruler in the picture had a distinct identifying mark as did the ruler in Souviron's possession. (R-8669). Souviron showed the court the identifying mark. (R-8670).
Upon further examination, Dr. Souviron testified that there was a one-to-one relationship with the ruler in the photograph and the ruler that he had in his possession but that it was not necessary for bite mark comparisons fora one-to-one relationship to exist. (R-8672-8675).
The Court, in ruling on the admissibility of the photographs, said the exact relationship that existed between the ruler and the ruler in the photographs was sufficient. (R-8681).
Appellant's counsel, Mr. Harvey, was apparently satisfied with the measurements but expressed reservations about the color of the photographs. (R-8681-8682), DK. Souviron testified before the jury that six and a half to one blow ups were made to scale from the "one-to-one photos" and were accurate representations, photographically developed under his direction by forensic photographer John Valor. (R- The Court expressed its concern about how the blow ups were made, and Dr. Souviron allayed the Court's fears by testifying as to how the photos were made. Imposing the blow ups on each Other, Souviron conclusively demonstrated that the blow ups were made ina six-and-a-half-to-one-scale. (R-8701-8702).
In arguing that "distortion" was not explained or accounted for, Appellant improvidently relies upon United States.
Sellers, 566F. 2 d 884 (4th Cir. 1977) and United States.
Tranowski, 659F. 2d750 (7th Cir. 1981). Both of these cases are distinguishable.
In Sellers. the Court erred when it refused to allow the Defendant's expert to express the opinion that the Defendant was not the person in the photographs where the Court had allowed the government's expert to express his ultimate opinion that the person in the photographs was the Defendant. Here, both sides' experts were given wide altitude in expressing their opinions
(2.9. I9153 - 9229).
In Tranowski, an expert astronomer was called to determine the date a photograph was taken from shadows within the photograph and which was relied upon by the Defendant to prove his alibi. Using elementary trigonometry, the astronomer computed tangents and cosines from shadows thrown in the picture by a dog and by a corner of the house which was in the background of the picture. From this, the astronomer determined the azimuth of the sun (its angle from true south) and the altitude of the sun (the angle formed by its relevation above the horizon). The astronomer then consulted a chart which had been used in the past to measure the height of lunar mountains in order to determine the date the photograph was taken.
In reversing Tranowski's conviction for perjury, the Seventh Circuit observed that (1) Ciupik (the astronomer) had failed to take into account a possible slope in the ground when he constructed the right angel of the dogs shadow, (2) that the orientation of the backwall of the house, which was necessary to determine the sun's azimuth, had never been verified, and (3) that an examination of the photograph convinced the Court that it was impossible to locate with any degree of accuracy the intersection of the chimney with the backwall from which Ciupik's angles were determined.
Here, the photographs are clear and sharp. Even a layman could take a ruler, compare them to the rulers in the photograph, and determine that they are accurate "one-to-one" relationships or, by a little simple arithmetic, determine that the blow ups were six-and-a-half-to-one relationships. This Court is invited to do so if it has any question about the reliability of the evidence. Of course, Dr. Souviron testified that he did so and Appellant's experts apparently relied upon the accuracy of these photographs without question to reach their conclusions. (R- 8739). Appellant was free to bring in his own experts to contest Souviron's measurements or the photographs.
The factual basis for the photographs was supported by reliable and credible evidence.
4. OPINION ON GUILT
Appellant complains about the following quotation arguing that it was tantamount to an opinion on his guilt and highly prejudicial:
A. I think it's an unreasonable question. That's the answer.
Q. You think the question is unreasonable?
A. Yes, sir, as I told you before, we're given ancillary evidence. I was given four pictures, has obviously blood in the rectal area here, the individual had been beaten to death, I don't think this is consistent witha 12 year old child.
Q. Did you consider that evidence?
A. Well, no, because nobody asked me the age of the perpetrator. (R-8788-8789) The discussion that preceded this answer by Dr. Souviron concerned the age of the victim's assailant. The question propounded by Appellant's counsel, Mr. Harvey, which elicited this answer was unreasonable. (R-8788). Ina "statement question" Mr. Harvey then asked Dr. Souviron why he thought his earlier question was unreasonable. At that point, Dr. Souviron gave his reasons as to why he concluded that the bite mark on the victim was inconsistent with the bite mark of a 12 year old child.
Two points should be noted. First, Appellant's counsel initiated DK. Souviron's response. Second, Appellant's counsel never objected to the answer by Dr. Souviron. Indeed, Appellant's counsel seemed satisfied with Dr. Souviron's answer, and continued to explore its ramifications. (R-8789).
Assuming but not admitting this was error, Appellant must live with - his error. Appellant cannot initiate error and then seek to benefit by it. Jackson v. State, 359 So.2d 1190, 1194 (Fla. 1978).
Moreover, Appellant is foreclosed from raising this issue because he failed to object to Dr. Souviron's response when it was made. Castorv. State, 365 So.2d 701 (Fla. 1978) and cases cited therein. In both Gibbs v. State, 193 So.2d 460, 463 (Fla.
Of course, on its face, and within the context in which it was elicited, Dr. Souviron's response was proper. Although entitled to as an expert witness, he did not express his ultimate opinion on the factual basis of the question in this exchange.
The testimony was not improper nor was it prejudicial.
5. STANDARDS
Appellant argues that because the various authorities that allow bite mark evidence propose or use different standards for review and because the experts in this case expressed opinions on ultimate issues of fact, his case should be reversed.
Before proceeding with an analysis of Appellant's argument, it is interesting to note that Appellant's expert, Dr. DeVore, while indicating that his own tests were inconclusive, admitted that the bite mark evidence in this case was consistent with Appellant's bite and that none of Appellant's teeth were inconsistent to the point where he would exclude Appellant as the assailant. (R-9204; 9216-9218), Taking Appellant's later argument first, Florida law allows an expert to render an opinion on an ultimate issue of fact.
Section 90.703, Florida Statutes (1981) and Ehrhardt, 5 Florida Practice, Evidence, Section 703.1 and authorities cited therein.
The mere expression of an expert's opinion on an ultimate issue of fact does not compel the jury to find that fact to be true.
It is presumed that the jury will give the expert's opinion as much weight as it feels that the opinion deserves. Behm v.
Division of Administration, 292 So.2d 437 (Fla. 4th DCA 1974 Here, the jury was properly instructed as to how to evaluate the experts' testimony. (R-9747-9748). It should be remembered that as Appellant's expert witnesses testified, Appellant's argument cuts both ways.
As for Appellant's specific attack upon the standard used by the experts in reaching their conclusions, four observations are pertinent:
(1) The three pronged test of State.
Saqer, as has been argued, was met;
(2) The evidence was consistent with Appellant's having made the bite marks and even Appellant's expert could not exclude Appellant as the assailant;
(3) The State's experts, Drs. Souviron and Levine, both concluded that the bite marks were "within a reasonable degree of dental certainty" made by Appellant's teeth. (R-8738 and 8952);
(4) The test met the standard of admissibility in this state under Coppolino v. State, supra, in that the evidence was so unreliable and scientifically unacceptable as to have been precluded from admission.
Appellant's argument is somewhat similar to the argument that the First District Court of Appeal was confronted with in Turner v. State, 388 So.2d 254 (Fla. 1st DCA 1980). In Turner, the defendant argued that the Duquenois-Levine Test, a color chemical test for marijuana, was insufficient in and of itself to determine the presence of marijuana. Turner put on an expert witness who testified that the Duquenois-Levine Test used by the State, even buttressed with microscopic examination, was insufficient to identify the substance possessed by the defendant as marijuana. In rejecting that standard, the First District Court of Appeal noted that absolute chemical identification of the substance was unnecessary and that other facts tending to show the identity of the substance, such as its appearance, smell, and the circumstances under which it was seized, were probative to meet the State's ultimate burden of proof (guilt beyond a reasonable doubt).
Here, the scientific evidence was reliable enough to be admitted under any standard. Coupled with the other circumstantial evidence against Appellant, Appellant's guilt was proved beyond and to the exclusion of a reasonable doubt. The mere fact that the science of odontology, and specifically, bite mark identification, is new is not a bar to its introduction into our courts. After all, Drs. Helpers and Umberger had to develop tests in Coppolino to detect succinylcholine chloride.
Naturally, in Coppolino, there was no literature extent prior to the development of these tests to determine the standards the experts used. The standards were subject to the trial court's evaluation and are review able by this Court only upon a showing (Fla. 1st DCA 1976).
The standards were sufficiently developed at the time of Appellant's trial for the jury to conclude beyond and to the exclusion of every reasonable doubt that Appellant was the assailant who made the bite mark on Lisa Levy's buttocks. This is particularly so because Appellant's counsel, Ms. Good, argued extensively to the jury (1) the credibility of the state's witnesses versus the defense's witnesses and (2) that the jurors could take the physical evidence back to the jury room, compare it, and see for themselves that Appellant's teeth did not make the bite mark (s) ISSUE I
THE TERM "FAILURE CONTAINED
IN THE FLORIDA STANDARD JURY
INSTRUCTION (CRIMINAL) 2.13 (h)
(R-9478) WAS NOT AN IMPERMIS-
SIBLE COMMENT UPON APPELLANT'S
RIGHT NOT TO TESTIFY.
Appellant argues that the trial court erred in instructing the jury that his failure to take the stand should not be held against him. There are three reasons why Appellant's argument should be rejected.
First, while Appellant did submit a proposed instruction which was rejected (R-1522), Appellant acquiesced to the instruction that was given. (R-9478). Simply put, Appellant wanted the best of both worlds. He wanted his modified instruction accepted but in the event that it was rejected, Appellant wanted the standard instruction on failure to testify given. (R-9478).
This is so because the failure to give such an instruction is constitutional error. Carter v. Kentucky, 450 U. S. 288, 101 (KY.)
Second, Appellant's argument has been repeatedly reject-ed by the state and federal courts. Until recently, the federal courts gave a virtually identical instruction:
The law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn, from the failure of a defendant to testify.
As stated before, the law never imposes upon a defendant ina criminal case the burden or duty of calling any witnesses or producing any evidence.6 (Emphasis added) Devitt and Blackman, Federal Jury Practice Instructions, 3rd Edition Section 17.14 In Lakeside. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), the Supreme Court considered a similar instruction7 and found no constitutional error where the trial judge, over the Defendant's objection, had instructed the jury that the Defendant had no obligation to testify and that his 6The federal jury instructions have been recently modified to remove the word "failure1' from the instruction. Id. 1981 Cumulative Supplement for use in 1982 at Section 17.14 '"Under the laws of this State a defendant has the option to take the witness stand to testify in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilty or innocence." But for the absence of the word "failure," the instruction is similar; it accomplishes the same purpose and is no better or worse than the instruction given here. Id. at failure to do so could not be used against him.
In Florida, as long ago as 1928, this Court held that an instruction concerning a defendant's failure to ta,, e the stand to testify is not error. Folger v. State, 117 So. 694, 96 Fla. 68 (1928). Indeed, the giving of such an instruction even if the defendant does not request it is not error. Lloyd v. State, 218 (Fla. 2d DCA 1970), certiorari discharged 262 So.2d 655.
In Diez v. State, 359 So.2d 55 (Fla. 3d DCA 1978) the defendant objected to an instruction which stated:
The defendant, Lazaro Diez, did not take the witness stand and testify. This is a matter of passing interest only since there is no obligation passed upon the defendant to do or say anything. The entire burden is upon the State of Florida to prove the truth of the charge and you are not to draw any inferences from the fact that the defendant did not testify.
Id. at 56. (Emphasis added).
The Defendant's argument that the phrase "this is a matter of passing interest only since there is no obligation passed upon the defendant to do or say anything" was rejected. The court held that it was not an impermissible comment upon his right not to testify when read in context with the rest of the jury instruction. Here, as in Diez, when read in context with the rest of the instructions given, the instruction was proper. This is particularly so because the trial court gave an instruction on the presumption of innocence. (R-9745-9746).
The trial court did not err in giving the instruction on Appellant's failure to take the witness stand.
ISSUE J
APPELLANT'S RIGHT TO COUNSEL WAS NOT
ABRIDGED WHEN THE TRIAL COURT REFUSED
TO ALLOW MILLARD FARMER TO REPRESENT
HIM, Appellant argues that his Sixth Amendment right to counsel under the United States Constitution was violated when the trial court refused to allow Millard Farmer to represent him.
In Leis, the Supreme Court reached the same result when it held that out-of-state lawyers wishing to appear pro hac vice had no constitutional right to procedural due process where the state court denied their admission.
Appellant seeks to side step the rulings in Bundy v. Rudd and Leis. Flint by arguing that this was - his Sixth Amendment right to counsel which was abridged and that these cases do not consider the constitutional questions that he now presents. Of course, the effect of these rulings is the same; denying an outof-state lawyer the right to appear pro hac vice fora client is tantamount to refusing the exercise of a client'sSixth Amendment privilege for that particular attorney. The dissent in Leis.
Flint, although wrong in its outlook, recognized that this in effect was what the United States Supreme Court was holding. See Assume for argument that Bundy v. Rudd and Leis. Flint do not foreclose this issue. The trial court, under the prevailing case law and the factual situation presented it, was nonetheless still correct in its decision.
Although the right to counsel is absolute, there is no absolute right to particular counsel. United States ex rel.
127. The right to retain counsel of one's choice is not absolute; such ar ght cannot be insisted upon ina way that will obstruct the order y judicial procedure and deprive courts of their inherent power to control the administration of justice.
United States. Burton, 584 F.2d 485 (D. C. Cir. 1978), cert.
The determination of whether the Defendant's Sixth Amendment right to counsel of his choice over rides the conduct of his attorney is committed to the trial court's discretion.
United States. Kitchen, 592F. 2d900 (5th Cir. 1979), cert.
den. 444U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56; United States.
556. The right of @)defendant sin +a criminal case'to retain khe attorney of M choice does not outweigh the countervailing public interest in the fair and orderly administration of justice. United States. Salinas, 618 F.2d 109% (5th Cir.
(1980), rehearing denied 622 F.2d 1043, cert. den.
In Ross. Reda, 510 F.2d 1172 (6th Cir. 1975), cert. den.
423U.S. 892, 96 S.Ct. 190, 46 L.Ed.2d 124 this very issue was presented to the Court, where pertinently, the Court stated:
While the Sixth Amendment right all criminal prosecutions" to the "assistance of counsel" implies a degree of freedom to be represented by counsel of defendant's choice, this guarantee does not grant the unconditional right to representation ina state court by a particular outof-state attorney. To the contrary, in Thomas v. Cassidy, 249 F.2d 91, 92 (4th Cir. 1957), cert. denied, 355 U. S. 958, Court said:
[I]t is well settled that permission to a non resident attorney, who has not been admitted to practice ina court, to appear pro hac vice ina case there pending is not a right but a privilege, the granting of which is a matter of grace resting in the sound discretion of the presiding judge.
Moreover, the Sixth Amendment claim is modified significantly by the actual availability and presence of other competent counsel. -Id. at 1173 Moreover, the Court went on to say that because of statements made by ROSE'S proposed counsel to the media, the lower court was well within its discretion in denying Ross his particular choice of counsel. - Id. at 1173.
Here, after holding a hearing where both Appellant and the State were afforded an opportunity to put on witnesses, the Court wrote a well-supported, well-reasoned order denying the appearance of Millard Farmer. (R-438-442; R-2022-2156).
The evidence at the hearing substantiated the Court's order. Testimony indicated Millard Farmer had been held in contempt in his native state of Georgia on two occasions within several days. (R-2049-2050). Farmer habitually talked to the press, generated publicity, engaged in disruptive tactics, and accused judges of "collision". (R-2057-2058). Farmer engaged in Georgia in decaying tactics (R-2073-2089) and at one time had to be physically removed from a judge's chamber because of his conduct. (R-2075).
Here, where Appellant complains about the adverse effects of publicity, and even argues that "the media controlled the docket", Appellant alleges it was error for the trial court to deny the appearance of a media whirlwind, Millard Farmer, who habitually creates publicity by talking to newspaper reporters.
(R-2100-2127).
This Court doesn't have to just guess at Farmer's contemptuous conduct; it can review the factual hearing where witnesses testified to Farmer's disruptive tactics and read for itself Farmer v. Holton, 146 Ga.App. 102, 245S.E.261 457 (Ga.App.
(1978), cert, den. 440U. S. 958, 99S.Ct. 1499, 59 L. ED. 2 d 771
(1979) and Willis v. State, 243 Ga. 185, 253S.E.2d 70, (Ca.
cert.- where Farmer's sordid trial tactics are detailed for all to see. Interestingly enough, the Georgia Supreme Court in Willis held that it was not error for the trial court to refuse to allow an out-of-state attorney, not a member of the Georgia Bar, to represent the Defendant. z.
at 7 5.
As noted by the trial court, Rule2.060(b) of the Florida Rules of Judicial Administration makes the appearance of foreign attorneys per missive and the American Bar Association suggests that an attorney who has been held in contempt may and should be prohibited from pro -- hac vice admission into a foreign court. (R- Last but not least, Appellant'sSixth Amendment claim, notwithstanding his argument to the contrary, was modified significantly by the actual availability and presence of other competent counsel. Ross. Reda at 1173.
Appellant'sSixth Amendment right to counsel was not violated when the trial court refused to allow Millard Farmer to appear pro hac vice on his (Appellant's) behalf.
_I_- God only knows how many more thousands and thousands of pages this record would have been had Millard Farmer been allowed to appear. See Willis v. State, supra (case which took two and a half days to try the guilt-innocence phase ended up witha record of over 1 2, 000 pages because of hearings instigated by Millard Farmer, disapproved by the Georgia Supreme Court, all of which were unnecessary. Id. at ISSUE K
THE COURT'S INCLUSION OF A FLIGHT
INSTRUCTION TO THE JURORS WAS NOT
ERROR.
Appellant argues that the Court erred in instructing the jury that it could "infer consciousness of guilt from flight" (Appellant's brief at 117).
The following instruction was given:
You are instructed that flight of the defendant is a circumstance to be taken into consideration with all other facts and circumstances in evidence, and if you the jury, believe and find from the evidence, that the defendant fled for the purpose of avoiding arrest and trial, you may take this fact into consideration in determining guilt or innocence. (R-9744-9745).
Preceding the giving of this instruction, extensive discussion occurred between the parties regarding its form.
(R-9511-9518). Appellant's attorney, Ms. Good, objected to the State's proposed instruction and tendered Appellant's proposed instruction. (R-9511-9517). Appellant's Attorney Harvey objected to the giving of any flight instruction, Appellant's or any other proposed instruction. (R-9515).
The Court, after listening to objection and argument by both the State and defense, promised to "get up a good instruction" based on "Hargrett" (K-9518). The Court, true to its promise, promulgated its own instruction, distributed it to the parties, announced that it felt pretty good about its instruction, and observed that both the defense and the prosecution would probably disagree with it. (R-9611). There was no specific contemporaneous objection to the Court's instruction. (R-9626 et seq.).
Because of the foregoing, Appellant is estopped from raising this issue. Lucas v. State, 376 So.2d 1149, 1152 (Fla.
Any evidence that an accused in any manner endeavored to escape or evade threatened prosecution, by flight, concealment, resistance to lawful arrest, or any other ex post facto indication of a desire to evade prosecution is admissible evidence. Mackiewicz v. State, 114 So.2d 684 (Fla. 1959), cert.
1st DCA (1978) and cases cited therein; Villageliu v. State, 347 (Fla. 3d DCA (1972).
The main thrust of Appellant's argument is that in most of the cases where a flight instruction has been given, the defendant's flight occurred almost immediately after the occurrence of the crime. Consequently, argues Appellant, there is a one-to-one-correspondence between the proper giving of a flight instruction and the proximity of the flight to the occurrence of the crime.
The trial court in this case was well aware of Hargrett (R- 9511) and may well have prepared its instruction from the instruction given at Hargrett's trial:
Ladies and gentlemen of the jury, if you find that the defendant fled to escape or evade apprehension, then you may consider the same in determining the guilt or innocence of the defendant, as this tends to show the probability* of the defendant being the guilty person. - ID, at 299.
Here, the facts were similar to the facts in Harqrett.
Appellant was seen in, and, or around the crime scenes immediately prior to (R-7955; 8326-8407), and immediately after the murders (R-8410-8417).
Appellant was seen by Officer Keith Daws on February 11, 1978 a short distance from the Oaks Apartments, whereupon Appellant fled. (R-7920-7929).
Appellant was last seen in the Tallahassee area on the Monday or Tuesday of the second week of February, 1978 (R-7959- 7962) and was arrested by Pensacola Police Officer David Lee, where a scuffle ensued and Appellant attempted to flee. (R-6792- The circumstances were detailed by Officers Daws and Lee concerning the stopping and subsequent fleeing of Appellant. (R- The circumstances in Harqrett and Appellant's case are almost indistinguishable.
Moreover, flight is only a circumstance of guilt to be 8The "probability" of guilt language was probably struck at Appellant's behest. (R-9515).
considered by a jury under an appropriate charge, Williams v.
State, supra. The charge given by the trial court allowed the jury to consider the other facts and circumstances concerning Appellant's guilt along with the evidence of Appellant's flight to determine whether Appellant fled for the purpose of avoiding arrest. The jury was informed they could "take this fact into or innocence."
consideration in determining guilt - (Emphasis added.) As given, the instruction was as beneficial to the Defendant as to the State as the jury could have determined that Appellant's flight was not an indication of guilt and may well have been an indication of innocence.
Certainly, Ms. Good, in arguing to the jury, glibly attempted to dissipate Appellant's flight asa circumstance of guilt. (R-9680-9681).
Finally, the fact that Appellant may have been running from one or more of his crim-s does not prohibit the giving of such an instruction or otherwise Appellant would be rewarded for the NUMBER OR ENORMITY of his crimes.
The giving of the flight instruction by the Court was not error.
ISSUE L
THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT AN EVIDENTIARY
HEARING ON THE EFFECTIVENESS OF
HIS TRIAL COUNSEL.
Appellant argues that pursuant to the provisions of Kniqht v. State, 394 So.2d 997 (Fla. 1981) his counsel were ineffective and he was entitled to a hearing on their lack of effectiveness. Appellant has detailed the alleged acts or omissions which suggest that his counsel were ineffective. These will be dealt with separately later. First, some important preliminary remarks.
When Appellant first raised the issue of ineffective assistance of counsel, he did not request a hearing on the matter. (R-10079). Appellant's court appointed counsel for the motion for new trial (Davis and Hayes) were not prepared to argue the issue of ineffective assistance of counsel without written transcripts. (R-10130-10131). The trial court denied Appellant's request fora hearing based on the fact that he
(Cowart) had heard and watched a11 of the proceedings and thus was ina position to evaluate Appellant's counsel and their effectiveness without a hearing. (R-10134-10135). Indeed, at this hearing, Appellant still wanted his trial counsel (public defenders) to represent him because of their knowledge of the case. (R-10142).
Appellant's attack upon his defense team is so typical of an armchair general's attack upon his professional military staff after a defeat. Appellant, an amateur strategist, called the shots during the trial and in the aftermath now takes his shots at those very professionals that defended him so capable. The trial court specifically allowed Appellant to represent himself in court with the assistance of the defense team. (R-2158-2159;
3651). Appellant, as counsel, could examine anything and anybody that he wanted to at any time during the course of the legal proceedings. (R-3686). Whether to Appellant's detriment or not, he certainly took advantage of this order. - (E.q., R-3942; 5797;
Appellant's defensive army consisted of Appellant (as general); Michael Minerva (The Public Defender, Second Judicial Circuit); Edward Harvey (Assistant Public Defender); Lynn Thompson (Assistant Public Defender); Margaret Good (Assistant Public Defender and a capital appeals specialist); Robert Haggard (voluntary private counsel); (all of whom were either captain or privates, depending upon Appellant's mood). Additionally, at various stages throughout the proceedings he was appointed additional counsel to either oppose strategical decisions of the defense team (i.e., Brian Hayes, who was appointed by the Court to represent Appellant at his competency hearing [R-36131 or Hayes and Cliff Davis, who represented Appellant at his motion for new trial on the incompetency of counsel issue [e.g., Additionally, Appellant had a jury selection specialist (R-3932-3944), an identification specialist (Dr. Buckhout, R- 6206-6266, who was not allowed to testify R-1650) and odontological experts who had more degrees than a thermometer (R-9070; 9153-9154), all of whom assisted in one fashion OK another in aiding or depending Appellant.
Moreover, Appellant was even allowed to contact out-ofstate counsel (a Mr. Brown) by phone for legal advice (R-9496- There can be little doubt that Appellant was an intransigent client and an intolerable commander. Appellant, overriding the decisions of his professional staff, insisted on putting on witnesses who Public Defender Mike Minerva refused to put on, with the end result that they were detrimental to Appellant's case. (R-3619).
Because of Appellant's intransigence, delays in the proceedings were inevitable. Some witnesses were Deposed t w.ce, once by Appellant, once by his defense team. (R-2239-2240).
Appellant had no right to the hybrid representation that he 'Appellant was also initially represented by Assistant Public Defenders Joe Nursey and David Busch (R-1691).
received. State. Tait, 387 So.2d 338 (Fla. 1980) and cases cited therein.
Appellant must show justifiable dis satisfaction with his appointed counsel. The right to effective assistance of counsel may not be improperly manipulated by an eleventh hour request to obstruct the orderly administration of justice. United States.
The trial of a criminal cause is not a game to see by what legal strategem one may escape punishment for the commission of an offense against the general public. While the right to counsel is absolute, its exercise must be subject to the necessities of sound judicial administration. The constitutional right to be represented by counsel does not, of course, guarantee an attorney with whose advise the defendant can agree. Judicial proceedings providing a forum for a fair and impartial hearing and trial before his peers must be provided by the state to one accused of committing a crime. On the other hand, the public welfare demands that such a procedure be carried forth in an orderly manner; otherwise, the judicial system becomes "farcical and a mockery'' and society asa whole reverts to the law of the jungle. To permit a "jail house lawyer" to seize upon every imaginable incident as being a deprivation of a constitutional right and thereby disrupt the judicial processes to such an extent that a final disposition of his cause is postponed beyond the availability of witnesses, is to say in the name of due process that justice is not available to the citizens of a state against an individual. To permit a defendant, be he indigent or otherwise, to conduct, on the one hand, the trial of his cause as he deems advisable, but on the other hand to scream that ''he" has been deprived of a constitutional guarantee because 'tlhe" is not furnished, at the expense of the general public, an attorney who concurs "with him" as to the manner of conducting an appeal is to completely disregard the purposes for which counsel is furnished.
Counsel is furnished for the purposes of advising and guiding an indigent defendant and to assist him in preparing his case, taking into consideration his rights as guaranteed by the State and Federal Constitutions. Counsel is not provided for the purpose of serving asa mouth piece for the defendant, nor is such counsel required to conduct himself as an errant boy to carry out the defendant's legal theories--and once failing so to do, to be summarily discharged by defendant and another appointed for such purpose. We are fearful that the basic function of a lawyer appointed to represent a defendant has, to a great extent, escaped not only indigent defendants but, in many instances, the appellate courts. 10 (Footnotes omitted) At any rate, the State's purpose in discussing the foregoing matters and citing the foregoing authority is to point tA' the time Brooks was decided (1965) the standard for attacking counsel's inefficiency in Florida was "farce or mockery". This case is not relied upon but the State for the proposition that for Appellant to pre vail on the issue of ineffective assistance of counsel he has to show that his counsel were so incompetent that his trial resulted ina "farce or mockery." Rather, the language quoted above is done so for the purpose of underscoring the difficulties with which the trial court had to deal concerning Appellant's representation. The parallels are obvious.
out that if any acts OK omissions did occur, they were because of Appellant's behavior or misbehavior. Appellant, hoisted on his own petard, should be estopped from raising the issue of ineffective assistance of counsel because of his conduct.
Turning to the specifics of Appellant's complaints, it should be noted that Appellant has made some rather general criticisms (acts or omissions a-g) followed by record citations. It's almost as if a dab of paint became the painting on the ceiling of the Sistine Chapel; Appellant fly specks the record, comes up witha few criticisms, and slaps several record citations down without extended discussion in support of those criticisms.
Appellant's first criticism is that his counsel were insufficiently prepared for the bite mark challenge.
(Appellant's citation for this is 2465, apparently an erroneous citation as the bite mark evidence was not discussed on this page in the record.) At any rate, as noted by the trial court and supported by the record, Appellant's expert witness testified in the pretrial hearings that he had considered the bite mark tissue evidence. (R-3769; 3198). Without more, further discussion of this complaint is useless.
Appellant's next complaint is that counsel did not adequately notice its motion to exclude the public to certain depositions taken. (R-2681). First, Appellant's counsel, because of the short period of time between the filing of the motion and the initial hearing to be held on the motion, was not sure that those people entitled to receive a copy of the motion or notice of the hearing received their copies or notices.
Consequently, counsel, in the interest of fairness to all parties, asked that other matters be taken up prior to consideration of the motion to seal the depositions. Second, Appellant makes no argument as to how he was prejudiced by this action OK as to why this constituted ineffective assistance of counsel. Indeed, on its face it appears to constitute effective assistance of counsel--a concern by Appellant's counsel that all parties entitled to be noticed concerning the motion and hearing to seal the depositions received the motion and were aware of the e hearing in time to adequately prepare for it. (R-2681).
Appellant's third complaint is that counsel was not timely in moving to challenge the grand jury which indicted him.
(R-2654). This has been discussed in some detail in Issue G, supra. Suffice it to say that at this particular time Appellant didn't have counsel on the charges under appeal so he can hardly complain about their effectiveness or lack thereof. - See United States. Gray, 565 F.2d 881, 890, n.30 (5th Cir. 1978) [Defendant not entitled to presence of counsel while committing a crime; likewise, the analogy can be drawn that Appellant is not entitled to effective assistance of counsel prior to the appointment of counsel.]
Appellant's fourth complaint is that counsel did not 0 adequately confer and consult with him during the course of the pretrial and trial proceedings, (R-2597, 2959, 3599, 3651, 5337, Appellant, in his inimitable fashion, vociferously broached this issue before the trial court during the trial. The court's reply is instructive:
THE DEFENDANT: Some things are best done by yourself than others.
I think I already have a co-equal, at least in the eyes of the Florida Constitution. I have asserted my right to a co-equal position with my counsel and they are counsel of record and I have also, earlier in Tallahassee, informed the Court that I wished to exercise that.
THE COURT: And the Court has given you that right. You have questioned witnesses. You have participated in motions.
AsI said, there must be a hundred conferences with you by counsel, which the record will reflect from its beginning, "Just a moment, please, " and their qoinq over and conferrina.
I have not seen a witness tendered or a cross-examination ceased that they have not confronted and consulted with you, Mr Bundy.
If you had anything else--and you have displayed no bashfulness to this Court--if you would have had some serious or founded reservations, you would have llThe reference to 8305 must be an error; 8305 is the appearance page of the proceedings held on July 17, 1979.
let me know about it.
(Emphasis added) (R-9041-9042) And I am not going to hear any more nonsensical information about competency or incompetency of counsel.
Now, you feel free to discuss anything with your counsel. They are here with you.
We have joined issue on it and we are going to proceed with this trial.
THE DEFENDANT: Yes, Your Honor.
I wasn't addressing the issue of competency of counsel, necessarily, but on the other hand-- THE COURT: Your question is one of just plain submission of counsel.
THE DEFENDANT: Imposition.
THE COURT: No, it is submission and this Court has addressed that.
If they do not do every little single solitary thing you want them to do, they are incompetent.
THE DEFENDANT: No, sir.
THE COURT: And bless your heart, if they do, I am going to fire them. Okay?
And the Court has ruled on it now.
Let's proceed on.
(R-9045-9046).
Just as the Court stated, the record reflects that Appellant conferred frequently with members of the defense team. (R-5792 [Haggard] " IfI could have just one moment, Your Honor"; R-7440 [Thompson] "Just one moment, Your Honor, please";
R-8467 [Haggard] "Your Honor, could we have a moment?", etc.
References to consultations are strewn throughout the record.
These are representative. At any point Appellant would have been free to consult with counsel in these pauses).
As noted by the trial court, if Appellant's complaints had any substance to them the trial court would have removed Appellant's lawyers. (R-9042; 9046).
Appellantls fifth complaint is that his counsel were not prepared for trial (R-3960, 6129) despite representations to the contrary (R-9024), that they had not seen certain exhibits (R-5684, 5930)12 and that their late preparation and production of certain bite mark evidence rendered it inadmissible because it was untimely produced. (R-9830, 9988).
Counsels "representations to the contrary" (R-9024) came long after counsels1 representations that they were not prepared for trial. (R-3960); the citation of R-6129 is apparently a mistake as there is no suggestion on that page that Mr. Haggard was unprepared for trial; the earlier citation is merely a demand for further discovery on the part of Counsel Good.) As for the so-called untimely produced bite mark evidence, introduction of 12This citation is apparently a mistake.
the evidence is immaterial because it would not have changed the 0 opinion of Appellant's bite mark evidence expert Dr. Devore
(R-9989).
Appellant's sixth complaint is that no court-appointed counsel had prior capital case experience (R-3651, 3677, 9037, 9287, 9296) and his case concluded without any counsel having prior capital case experience (R-9822).
First, mere inexperience of counsel is no guarantee of ineffective assistance of counsel. United States ex rel.
Williams v. Twomey, 510 F.2d 634 (7th Cir. 1975) and United States. Gray, 565 F.2d 881 (5th Cir. 1978).
Second, Michael Minerva, the Public Defender of the Second Judicial Circuit, represented Appellant throughout his trial.
While there were differences between Minerva and Appellant, Minerva over saw the defense team and their actions. Well into the trial, when Mr. Minerva made his first appearance before the jury, Appellant introduced Mr. Minerva to the jury. (R-8952).
Mr. Minerva did not withdraw as counsel until after the trial was over. (R-1661; 10126; 10135). Indeed, Appellant insisted upon his public defenders representing him at the motion for new trial. (R-10142). Mr. Minerva's qualifications and experience need no introduction to this Court. Further, note the clever wording of Appellant's charge: No court-appointed counsel had capital experience; Appellant also had volunteer private counsel, Robert Haggard, who, according to the court was ' I... an old - timer to this "circuit" who also was "... a good choice."
(R-3930). Additionally, Appellant had the advantage of the presence of Margaret Good, a capital appeals specialist who also needs no introduction to this Court.
Appellant's final complaint is that counsels' assistance was below the standard required in capital cases in the area of trial procedure. (See his citations at p. 121 of his brief.) As Appellant has not elaborated on specifically why this trial procedure was deficient, it is difficult to respond. Appellant's citation to 8149 is representative (perhaps) where Mr. Haggard asked the question "So you didn't know how to do that" and Mr.
Simpson (the prosecutor) respond "Is he asking her a question or is he making a statement for the record, Your HO ~ oK? " The Court responded "He's flirting." And Mr. Haggard continues to ask another question which was unobjected-to. How this constitutes ineffective assistance of counsel or deficiency in trial procedure is beyond the State. At any rate, courts ace not in the business of rat ing legal performance. United States.
Hand, 497 F.2d 929 (5th Cir. 1974), affirmed en banc, 516 F.2d 472 (5th Cir. 1975). Moreover, someone who is seeking relief predicated upon ineffective assistance of counsel must do more than make conclusive assertions to substantiate his challenge.
Woodard v. Beto, 447 F.2d 103 (5th Cir. 1971), cert. den. 404 Appellant, relying upon Kniqht v. State, supra, then proceeds to note "qualitatively, capital cases are different," and that the "inexperience of counsel was tantamount to no effective sentencing phase at all,13 that he was denied the preparation of a defense, and that evidence of material importance was kept from the jury. (Appellant's brief at 121- It is the State's position that Appellant has failed in (1) showing that the acts or omissions that he has detailed were measurably below that of competent counsel and (2) proving "prejudice" to the extent that the detailed acts or omissions affected the outcome of the court proceedings.
It is interesting to note that these acts or omissions detailed in Appellant's brief were not detailed in his motion for new trial. (R-1658). Indeed, Appellant's only allegations regarding any ineffective assistance of trial counsel in his motion for new trial were that (1) the trial court erred in I3Appellant makes no complaint on appeal that his sentence is improper, specifically ruling that his court-appointed counsel were 0 competent and (2) that he did not receive a fair and impartial trial because his court-appointed counsel were ineffective to secure his right to counsel guaranteed by the Sixth Amendment to the United States Constitution.
Two final points in rebuttal to Appellant's allegation should be noted. First, the trial court incorporated the entire transcript as evidence on the evidentiary issues regarding Appellant's charge of ineffective assistance of counsel.
(R-10034-10035). The voluminous record, the quality of the motions filed by defense counsel found in this record, and the quality of their presentation as reflected by this record refuses Paragraphs 3 3 and 3 4 of Appellant's motion for new trial.
Second, Appellant's allegations of ineffective assistance of counsel do not take into account the fact that - he was the chief trial counsel, that he deposed, examined, and cross-examined witnesses to his satisfaction. If Appellant has a claim of ineffective assistance of counsel, it is against himself, not against his appointed trial counsel.
Additionally, Appellant also had the benefit of private volunteer counsel.
In order for this Court to conclude that Appellant's defense team was ineffective in representing him, their errors must have been so flagrant as to be obvious that they resulted or ignorance rather than from an informed deliberation. Kniqht v. State, supra and Marzullo
v. Maryland, 561 F.2d 540 (4th Cir. 1977). To do that, this Court would have to indulge in the prohibited practice of hindsight or second guessing. McMann v. Richardson, 397 U. S.
counsel should be determined from the totality of the circumstances of the entire record. United States. Gray, supra.
Given the record before the Court, Appellant was not entitled to a hearing on the issue of ineffective assistance of counsel,
CONCLUSION
Based on the foregoing arguments and authorities, Appellant's judgment and sentence on all counts should be affirmed.
Respectfully submitted,
JIM SMITH
ATTORNEY GENERAL
ASSISTANT ATTORNEY GENERAL
SUITE 1502, THE CAPITOL
TALLAHASSEE, FL 32301
(904) 488-0290
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that atrue and correct copy of the foregoing has been furnished to Robert Augustus Harper, JR., Esquire, 308 EastPark Avenue, Post Office Box 10132, Tallahassee, Florida 32302 by U. S. Mail this /8%ay of May,
DAVID P. GAULDIN
IN THE SUPREME COURT OF FLORIDA
THEODORE ROBERT BUNDY,
Appellant, Appeal No.
V. Capital Case Appeal Second Judicial Circuit of Florida
STATE OF FLORIDA,
Appellee.
FILED
REPLY BRIEF OF APPELLANT
Law Offices of
ROBERT AUGUSTUS HARPER, JR
Counsel for Appellant 308 East Park Avenue Past Office Box 10132 Tallahassee, Florida 32302
I. TABLE OF CITATIONS
11. ARGUMENT
A. The trial court erroneously applied nonapplicable standards to defendant's requested closure of certain pretrial evidential hearings and therefore erred in denying defendant's motion requesting right to a fair trial.
B. The failure of the court to control the pervasive prejudicial publicity denied defendant his constitutional right to be tried in the county where the offense was committed.
C. The use of hypnotically refreshed eyewitness testimony violated defendant's right to a constitutionally fair trial.
D. The identification of appellant by Nita Neary was the fruit of improper identi- Appellant a fair trial.
E. Counts one through five and counts six and seven were improperly joined and refusal to grant defendant's motion to sever counts one through five from counts six and seven resulted ina denial of defendant's right to fair trial guaranteed by article I, 5 16, Florida tution Amendments VI and XIV.
the Witherspoon doctrine.
G. The court erred in denying defendant's challenge to the grand jury as ufitimdy and the failure to timely appoint effective assistance of counsel.
H. The trial court erred in admitting the bitemark identification testi-
I. The term "failure" contained in the jury instructions amounted to judicial comment on the accused's exercise of his
J. Defendant's right to counsel was violated by the trial court's denial of his motion to permit appearance of probuno out-of-
K. The court's inclusion of jury instructions permitting jurors to infer knowledge of guilt from flight constituted L, The trial court erred in denying defendant an evidentiary hearing on the effectiveness of assistance of his trial counsel ~
TABLE OF CITATIONS
100 S.Ct. 374 622F.2d 1043, cert. den. U.6. I United States v. WiZliams, 521 F.2d 950 (D.C.
Cir. (1975)
B. STATUTES
C. OTHER AUTHORITIES
Diamond, Bernard L., "Inherent Problems on the Use of Pretrial Hypnosis on a Prospective Witness," 68 Dilloff, Neil J., "The Admissibility of Hypnotically Influenced Testimony," 40 Ohio Northern U.L.Rev.
Pelanda, Kevin L., "The Probative Value of Testimony Spector, Robert. and Teree E. Foster "Admissibility of Hypnotic Statements: Is the Law of Evidence Florida Constitution Federal Rules of Evidence 0 "Accused's Rights to Assistance of Counsel at or Prior to Arraignment," 5 A.L.R.3d Webster Is Third Nm International Dictionary,
THE TRIAL COURT ERRONEOUSLY APPLIED NON-
APPLICABLE STANDARDS TO DEFENDANT'S RE;-
QUESTED CLOSURE OF CERTAIN PRETRIAL EVI-
DENTIAL HEARINGS AND THEREFORE ERRED IN
DENYING DEFENDANT'S MOTION REQUESTING THAT
RELIEF AND PREJUDICING DEFENDANT'S RIGHT
TO A FAIR TRIAL.
In Answer Brief, the State attempted to circumvent BUNDY's argument on appropriate standards (Appellant's Brief at 42-50) by construct ing a card house of principles drawn from cases involving the right to a change of venue (Appellee'ss Brief at 11-16). At no point did the State discuss, or even cite a case which discusses, the issue raised by Appellant, BUNDY, in his Initial Brief, i.e. closure of the suppression hearings. Id.
The State avoided the issue by assertion that Appellant's discussion of closure standards was irrelevant, but it is the State's assertion based on Nebraska Press Association v. Stewart, 427U.S. 539, 96 S.Ct. 2791, 49L.Ed.2d 683 (1976), (a prior restraint case rather than closure) which is not relevant. (Appellee'ss Brief at 14-15).
The facial anomoly is apparent from the factual and legal circumstances of the BUNDY case. First, BUNDY protected the trial court's failure to close the suppression hearings.
(Appellant's Brief at 4 2 - 5 0). At no point did the complaint extend to the court's failure to issue injunctions against the publication of prejudicial pretrial publicity. 5.
Secondly, the jurisdictional limitations which supported the restrictive application of prior restraint authorized in Nebraska Press has no relevance to the issue of closure of pretrial evidentiary hearings. In Nebraska Press, the Supreme Court weighed the criminal defendant's Sixth Amendment right to a fair trial against the public interest in the free operation of the media guaranteed by the First Amendment. The fundamental nature of these competing interests made it incumbent upon the Court to include in its calculus the likelihood that a restraining order, which would necessarily impact on the freedom of the press, would effectively protect the defendant's right to a fair trial. Nebraska Press Association v. Stewart, supra, 427U. S. 539, 96 S.Ct. 2791, 2806. The threat does not exist in most prior restraint cases because the court may only issue injunctions against members of the press within its jurisdiction. The news media outside the Court's jurisdiction is free to publish or broadcast whatever it chooses. For this reason, the Supreme Court imposed the comparatively strict standard in Nebraska Press.
The threat of prior restraint is absent from situations involving closure of pretrial hearings as in the BUNDY case.
The trial court has authority to govern its own proceedings and thus may close hearings and seal portions of the pretrial record absent in abuse of discretion. The limitations in Nebraska Press do not exist relative to closure of pretrial hearings. Therefore, Nebraska Press is inapposite to the BUNDY case.
Nebraska Press involved a restraint on information previously adduced at an open hearing. Nebraska Press Association
v. Stewart, supra, 427U.S. 539, 568, 96 S.Ct. 2791, 2807. The trial court order, therefore, violated the settled principles that no court may proscribe the press from reporting events that transpired in the open courtroom. - Id. The BUNDY case involved the trial court's refusal to close pretrial hearings which had not yet taken place. For this reason, also, the Nebraska Press principles do not apply to BUNDY's case.
Nevertheless, the four alternatives in Nebraska Press could not mitigate the prejudice that resulted from the spectacular publicity that the BUNDY hearings generated:
(1) Change of venue does not guarantee a fair trial when the case achieves great notoriety.
Miami Herald Publishing CO. v. Lewis, 383 So.2d 236, 240 (Fla. 4th DCA 1980).
(2) Searching questioning of prospective jurors is not dispositive. Sheppard v. Maxwell, 384 (3) The use of instructions that jurors decide the case only upon the evidence presented. In a case as sensational as BUNDY's, jury instructions are but a judicial caveat issued after the release of inflammatory publicity (see R333) and are at best, a weak safeguard against juror prejudice.
(4) sequestration of the jury, could have had no ameliorating effect in the BUNDY case. The prejudicial publicity occurred before the jury was empaneled and sequestered. (R 333, 1042, 1046, The hearings on the admissibility of the bite mark testimony, which defense counsel made repeated motions to close until empanelment of the jury (R 2810, 2972, 33571, occurred before the sequestration and empanelment of the jury (R 2930-3357, 3923, 3949-3950, 3971, 5529). Therefore sequestration of the jury could in no way insure against the access of jurors to prejudicial pretrial publicity.
Finally, it is important to note that the trial court by closing a single hearing from the public, could have avoided the entire situation. It would not have needed to contemplate less drastic alternatives or the "chilling First Amendment interest" (Appellee'ssBrief at 14-15). AS the trial court did not close the hearing, the publicity generated from those hearings compromised BUNDY's trial ina manner which subsequent measures could not remedy.
THE FAILURE OF THE COURT TO CONTROL THE
PERVASIVE PREJUDICIAL PUBLICITY DENIED
DEFENDANT HIS CONSTITUTIONAL RIGHT TO BE
TRIED IN THE COUNTY WHERE THE OFFENSE WAS
COMMITTED.
fair trial by an impartial jury in the county where the crime was committed. Art. I S16, Fla. Const. (1968); North v. State, 65 So.2d 7 7 (Fla. 1952); Ward v. State, 328 So.2d 260 (Fla.
1st DCA (1976). Venue is a personal and technical right which may be waived. Singer v. United States, 380 U.S. 24, 85S.Ct.
783, 13L.Ed.2d 630 (1960). When, however, the defendant is faced witha Hobson's choice in an outraged community, the reviewing court should carefully scrutinize the record to determine first whether defendant's choice was freely made and second whether the trial court took every reasonable measure within its power to preserve the defendant's right to a fair trial in the county of original venue.
In the BUNDY case, the defense made numerous motions to mitigate the impact of prejudicial pretrial publicity. (Appellant's Brief at 14-15). The court denied all but one* of these motions. (R457 - 461, 677-680, 1285). By its refusal to act, the trial court allowed sensational press coverage which compelled a request for change of venue. To maintain the defense action of exercising the only reasonable option available constituted a valid waiver of an explicit constitutional right * The media were denied permission to attend the taking of certain depositions (R452 - 460).
cannot be validly entertained in view of the acts and omissions of the trial judge by the resulting histrionic treatment of the case by the media. The trial court did not take adequate precautions against prejudicial pretrial coverage. The state's expert witness "held the trial" in the media on the most crucial issue of face in the case: identity (Appellant's Brief at 54). Ultimately, the trial court must be held responsible for the conditions which forced defense counsel to move fora change of venue. As such, BUNDY did not waive his right to be tried in Leon County, Florida, and the effectual denial of this right by the court constituted error.
THE USE OF HYPNOTICALLY REFWSHED EYEWITNESS
TESTIMONY VIOLATED DEFENDANT'S RIGHT TO A
CONSTITUTIONALLY FAIR TRIAL.
The State has argued that the use of hypnotism to refresh Nita Neary'stestimony in BUNDY'S case (1) was consistent with case law of most jurisdictions (Appellee'ss Brief at 2 3); (2) affected the weight, not the admissibility of the testimony Cz"d.1; (3) did not prejudice BUNDY'Sright to a fair trial because the prosecution's case did not " rely " on the use of hypnosis (Appellee'ssBrief at 24-26); and (4) was permissible because it was used for "purely investigative purposes" (Appellee'ssBrief at 29) Regarding the first two points, the State did not address (.as did Appellant's Brief at 57) the of its proffered majority rule. One of the most recent decisions on hypnotically refreshed testimony, People, Shirley, 641 P.2d 775, 784-785 (Cal. 1982), analyzed the line of authority upon which the State relied in BUNDY'S case. Justice Mosk wrote:
[ Alan examination of the opinions dis closes a significant evolution in the approach of the courts to this issue. In the earlier cases, as in Harding [ u. Maryland, 436 A. 2 d 302 (Ct.
Spec. App. Md. 196811, the courts engaged in little or no analysis of the issue, and merely reiterated the general proposition that the fact of hypnosis "goes to the weight, not the admissibility" of the evidence, If they dis - cussed the point at all, the courts simply noted that the witness believed he was testifying from his own memory and that his credibility could presumably be tested by ordinary cross-examination. (See State vmJorgenson, 1971 8 Or. App. 1, 492 P.2d 312, 315: WyZZer v. Fairchild HtZZer Corporation, (9th Cir.
427; CZark v. State, (Fla. App. 1979) 329 The lengthy citation accompanying the California Supreme Court's criticism of Hard&ng and its progeny is relevant here because it comprised the main body of case law relied upon by the State [Appellee'ssBrief at 231. It is worthy of note that the foundation ofthe case favoring admission of hypnotically refreshed testimony consists, of opinions which either treat the nature of hypnosis in the most superficial manner or fail to discuss it altogether.
Moreover, in its assertion that its putative "majority rule" that the act of hypnotism goes to the weight, not the admissibility of the evidence, the State overlooked existing Florida precedent. Scientific evidence is inadmissible in court until it is recognized and accepted in the scientific community. Frye. IhCtedStates, 295 F. 1013 (P. C. Cir, 19241; Coppozino. State, 223 So.2d 68 (Fla. 2d DCA 1968);
Jurisdictions which have carefully considered the question of admissibility of hypnotically refreshed testimony have reflected this concern. Ruling such evidence inadmissible perse, the California Supreme Court has. held that:
[Lit is the consensus of informed scientific opinion today that in no case can a person previously hypnotized to improve his recollection reliable determine whether any unverified item of his testimony originates from his own memory or is instead a confushn or confabulation induced by the hypnotic experience, People. Shirley, suppa, 641 P. 2d 775, 806; see, also, Commonwealth v. Nazarovitch, Reaching the same conclusion, the Minnesota Supreme Court held that:
[Tlhe fact that witness ' memory results from hypnosis bears on the question of whether her testimony is sufficiently competent, relevant, and more probative than prejudicial, to merit admission at all. State * Mack, 292 N.W. 2d 764, 769; see also, CommonweaZth II.Naxarovitch, supra, 436 A.2d 170.
The reliability of the hypnotic technique is athres - hoZd requirement for admissibility. Frye z1. United States, supra, 292 F. 1012, Rodriguez. State, supra, 327 So.2d 903; Coppozino v. State, aupra, 223 So.2d 68; Xamz*sky v.
State, supra, 63 So.2d 339. It is pointless here to reiterate the vagaries of hypnotically refreshed testimony both in the abstract and in this particular case) (Appellant's Brief at 56-67.] It suffices to note that the authorities cited by both sides on appeal and the uncontradicted testimony of Dr. Kuypers at the pretrial evidentiary hearing (€3 6426-6508), failed to demonstrate the acceptance of hypnotism in the scientific community asa truth detexxminant or memory aid.
The State's "weight, not admissibility" argument was based, too, on grounds other than its scientific merit. In passing, the State urged adoption of the "common sense" approach of Chapman v. State, 638P.2d 1280 CWyo. 1982) (Appellee'ss Brief at 2 8.) Chapman provides an interesting variant of the "weight, not admissibility" argument advanced by the State, The Wyoming Supreme Court refused to apply the safeguards* outlined in StatevmHurd, 432 A.2d 8 6 (N.J. 19811, to its own rule regarding introduction of hypnotically refreshed testimony. The court outlined the variables which could enhance the probability of confabula- /T Briefly stated, the safeguards adopted in State. Hurd, supra, 432 A.2d 86, are as follows:
The psychologist or psychiatrist conducting the session must be experienced in the use of hypnosis;
He must be independent of the prosecution, police, or defense;
Any information about the incident to be recalled under hypnosis which is given to the professional must be recorded;
The hypnotic subject should give a detailed description b * fore hypnosis of any facts she remembers concerning the incident;
All contacts hetween the hypnotist and the subject must be recorded;
Only the hypnotist and the subject should be present during any phase of the hypnotic session.
tion and memory distortion. Among these is mentioned the degree of involvement in the hypnotic trance, the difficulty of detect ing "role playing" ina hypnotic subject, and the probability of suggestion. The Wyoming Supreme Court reasoned that, since the three factors mentioned above were the crucial determinant of the reliability of hypnotically refreshed testimony, and since the guidelines enunciated in State, Hurd, supra, 432A.2d at 96-97, did not "make allowance" for these factors, the Hurd test was inapplicable to the competence of such testimony. As such, the Chapman court would place emphasis on credibility [weight) rather than competence (admissibility.] Chapman v. State, supra, By taking this approach, the Chapman court betrayed a fundamental misunderstanding of the Hurd rationale. It is almost universally recognized that no way exists to determine whether the suggestion, confabulation, and role playing that Chapman deemed so dispositive of reliability have been introduced by hypnosis. PeopZe v. SH < rey, ~ upra, 641 P.2d 775, 782, 794, 806; State. v. Mack, supra, 292 N.W. 2d 764, 769;
Commonweazth v. Naxarov<tech, supra, 436A.2d 170, 174, 176;
State. Hurd, supra, 432A.2d 0 6, 9 3, 9 4; Kevin I;. Pelanda, "The Probative Value of Testimony from Hypnotically Refreshed Recollection," 14 Akron L. Rev. 609, 620, 621, 624 ("1980);
Bernard L. Diamond, "Inherent Problems in these of Pretrial Hypnosis on a Prospective Witness," 68 Cal. L. Rev. 313, 333, 337, 340 (1980). The Hurd court realized the impossibility of any such determination, and enacted a set of safeguards designed to reduce the probability that confabulation or inappropriate suggestion would occur I The "rigid" Hurd test is therefore merely a procedural safeguard in Zieu of verifiable determination of reliability. Its hplmentation was intended to liberalize the admission of evidence of doubtful competence by allowing consideration of circumstantial guarantees of reliability. Although the safeguards may be inadequate to guarantee reliabili.ty, it is no answer to eliminate the safeguards.
Chapman's dependence an witness demeanor and cross examination to determine the reliability of hypnotically refreshed testimony is equally specious. Hypnotism removes all doubts and uncertain ties regarding any statement made during the hypnotic session. The subject's utter, unshakable conviction in the truth of his statements effectively prevents any meaningful opportunity to cross-examine him.
PeopZe v. Shirley, mpya., 641 P.2d 775, 785; State v. Mack, supra, 292 N.W. 2d 764, 769; Commonweazth v * Naxarovitch, supra, 436 A.2d 170, 176-177; State. Hurd, supra, 432
A.2d 86, 9 4; Pelanda, supra, at 615; Diamond, Supraa at 336, 339-340, 343; Robert. Spector and Teree E. Poster, "Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?,'' 38 Ohio L.J. 567, 593 C19772; Neil J. Dilloff, "The Admissibility of Hypnotically Influenced Testhony, " 4 Ohio Northern U. L. Rev. 1, 9 (1977). Hypnotically refreshed testimony, then, must be excluded on either ground addressed in the authorities cites supra. The court may not determine hypnotic competence (.hence, its adrnissibility) because no means exist to determine whether inappropriate suggestion, role playing, or witness confabulation occurred during the hypnosis. The jury may not determine its credibility because no means exist to negate the unassailable conviction hypnosis imbued in the subject of the truth of his statements. Thus, "weight, not "admissibility" argument is irrelevant because such testimony can be neither credible nor competent.
Appellee'ss Brief advanced a number of arguments. based on the proposition that the fact of hypnosis was irrelevant to the reliability of Nita Neary's identification of Appellant.
In it, the State asserted that Ms. Neary's description of the intruder, given to her roommate long before the hypnosis session or the photographic identification, did not change after hypnosis and that none of the additional details. brought out during the session were included in her testimony.
The State'sfirst theory of irrelevance is based on State. Beber, 336 So.2d 426 (Pla. 1978). Under Yreher, the court may consider the lengtkof time hetween the crime and the witness's initial identification of the suspect asa factor in determining the reliability of any subsequent identification procedures.
The Freber rule would be relevant in cases in which an eyewitness identified a suspect immediately or very shortly after a crime and subsequently reidentified the suspect in court. Such set of facts did not occur in the BIJNDY case.
Shortly after the crime, Nita Neary gave adescr < p & ion. She made no identification until nearly three months after her brief encounter with the intruder*. Beer never discussed the consistency of the witness's description. Rather it dealt with the temporal proximity of an identification to the incident upon which it was hased. Because of the in applicability of the Freber rule to the case at hand, the State's argument may be characterized, for want of a better tern, as a "red herring."
The State further argued that the fact of hypnosis bore no relevance to Ms. Neary's testimony because, since her description did not waver, no confabulation could have occurred (Appellee'ss Brief at 2 8.) The argument overlooks the essential fact that Ms. Neary's description of the intruder was of only marginal importance to her testimony. The crucial portion of Neary's testimony did not consist of a recitation of facial characteristics, but of her identification of THEODORE BUNDY as the man she saw leaving the Chi Omega house on the morning of 15 January 1978. No showing /TThe reliability of her identification will be discussed infra.
was made (nor could have been made) of consistency cd\ la Bebey) of Ms. Neary's identification before and after hypnosis*. No proof exists that NearyIs mental l'raage: of the intruder did not change during the hypnotic session. In fact, there was. substantial evidence that it did.
During the hypnosis session, Ms. Neary, at the command of Dr. Arroyo, produced images of hair, eyebrows, shoes, and facial features (R 6454, 646Q, 6462, 6465, 6467- 6470, 6492.) Her confabulation were not made irrelevant by her subsequent "repudiation" of them or their non disclosure at trial. Her production of images did provide almost irrebuttable evidence that confabulation did occur. The transcript of the hypnosis session demonstrated that her mental image of the intruder was altered in several important respects by Dr. ATTOYO'S suggestions. Therefore, reason exists to exclude Ms. Neary's testimony beyond the fixation of her cmitment to the accuracy of her description which, had hypnosis not occurred, might have been adequately tested by cross-examination. The record shows that distortion of Ms. Neary's memory occurred. As such., it is immaterial that the State did not "rely" on the additional details produced under hypnosis.
/" Appellee'ss Brief, at 28, makes reference to Ms. Neary's identification of BUNDY before and aftertheh nosis, session. Since it is a matter of record that the hypnosis Ti session occurred on 23 January 1978 IR 5934) and the photographic array occurred on 7 April 15178 @ 59461, the Court should not be misled by Appellee'ss misnomer.
the fact that distortion occurred made Nita Neary's testimony unreliable and, hence, inadmissible.
Appellee'ss Brief, at24, also argued that the jury was not unduly influenced by thefact of hypnosis. because Dr. Arroyo never testified. Therefore, the State argued, the jury could not have yiwm undue weight to Dr. AK ~ YOO ' S expert testimony. Appellee'ss argument misses the point.
It is the process of hypnosis, not merely the credentials of the person administering it, which conveys the "aura of infallibility". JhitedStates II.Broun, 557 F.2d 541, 556, (6th Cir. 1977); h < ted States 21, Alexander, 526 F.2d 161, 168 (8th Cir. 1970.) Experts in the field have asserted that the "great danger in the use of hypnosis is the credibility which lay men commonly associate with the technique. ' ' (Emphasis supplied.) Dilloff, supra.
The California Supreme Court likewise recognized that the "misleading aura of certainty" associated with hypnosis inheres to the procedures as well as the expert testimony given in support thereof. PeopZe P. Shirley, supra, 645 P.2d 775, 796. When ajury observes the testimony of a witness possessed of an unassailahle conviction of the truth of her testimony [the inevitable attendant of hypnotically refreshed testimony*] and reflects that hex memory was /yCommomeaZthv. flazarouitch, supra, 436. A.2d 174-176;
Pelanda, supra, at 621; Diamond, ~ upra aat ~ 336; Dilloff, supra, at 4; Spectar and Foster! supm, at 585.
"refreshed" by a process commonly believed* to have mysterious, truth-telling powers, the jurors are likely to accord undue weight to the testimony. Admission of Nita Neary's testimony was made under such circumstances and was prejudicial. The trial court's denial of Appellant's motion to suppress was error.
Finally, the State asserted that the hypnosis session did not taint the identification procedure because it was used for investigative purposes. The State did not, however, explain why the purpose of the hypnotic session had any hearing on the admissibility of subsequent testimony. As discussed supra, the use of hypnosis in BUNDY'S case irreparably tainted her identification and, thus, her subsequent testimony in court based on hypnosis. Thebasic fact of the unreliability of her identification was relevant to the admissibility of her testimony; the pretext for employing the procedure which rendered it unreliable was not. As such, the characterization of the hypnotic session as " purely investigative" does not render admissible Ms. Neary's otherwise inadmissible identification testimony.
PeapZev. Shirley, supra, 641 p.2d 775, the authority quoted in support of Appellee'ss final argument Appellee'ss Brief at 291, upon closer examination reached a result icon- /" The best available scientific data notwithstanding.
sistent with the position advanced by the State. The full quotation cited by the State is reproduced below:
Second, like the court in Mack (fn. 28anbe), we do not undertake to foreclose the continued use of hypnosis by the police for purely investigative purposes. People. Shirley, G U ~ P U641 P.2d at 790.
Footnote 28, mentioned above, defined the scope of the rule regarding the investigatory use of hypnosis enunciated in State z'. Mack, supra, 292 N.W. 2d 764, 771. Mack allowed such use of hypnosis "as long as the material remembered during hypnosis is not subsequently used in court as part of an eyewitness' testimony." Id. Ms. Neary's testimony was distorted and altered during hypnosis. No necessity for investigative freedom can justify the inclusion of unreliable evidence. Ms. Neary's testimony, the fruit of an identification procedure tainted by hypnosis is unreliable and prejudicial. As such, the trial court erred in refusing to exclude it.
THE IDENTJFICATIQN QF APPELLANT BY NTTA
NEARY WAS THE FRUIT OF JXPROPER IPmTXFI- CATION PROCEDIJRJ3S AND TmREFORE DENIED
APPELLANT A FAIR TRIAL.
Both Appellant's and Appellee'ss Briefs recognized as controlling the five-point test enunciated in.Mans.on 21.
2d DCA (1978). No reason is provided to accord Ms. Neary's testimony threshold reliability for admission based on these factors.
The accuracy of either of Ms. Neary's descriptions is also unpersuasive. The underlying issue is the accuracy of her memory of the incident. The existence of two different'descriptions of the intruder (regardless of the accuracy of one of them) indicates that her memory is flowed. On this basis, Ms. Neary's testimony is too unreliable to have warranted admission.
Likewise, Ms. Neary s "certainty" viz., her identification, does not establish its reliability. She testified upon in-court comparison that she saw Appellant and not Ronnie Eng leave the Chi Omega house on 15 January 1978 CR 9329-9330).
This certainty did not exist when she saw the intsudex and asked herself, "what is Ronnie Enq doinq in the hause?"
Thevariations in her descriptions of the intruder (.di, sussed supra). also demonstrated that whatever “certainty“ existed may have been superficial, Whatever certainty Ms. Nary showed failed to constitute the index of reliability contamplated by Manson and NeiZ because it resulted from the &proper identifica - tion procedures conducted by tke state. First, asdiscussedsupra, hypnosis imhues the subject with an unshakable conviction of the truth 05 the recollections, The hypnosis of NitaNeary destroyed the probative value of this element of the NeiZ/Manson test by artificially creating a sense of certainty before ascertaining whether alegitimatecertaintyexistedpriortothe hypnotic session. Furthermore, therecord shows that Ms, Neary saw a number of photographs of Appellant between 1 5 February 1978 and 7 April 1978 lthe date the photographic identification took place (R 6132, 6407). Among the pictures Ms, Neary saw during this period wasapartial profile of Appellant* (.R 5949-5950, 6140-61471..
/FTherelevanceofthisfact should be instantly apparent.
The pictures at the photographic array were profile shots (.R 59461. On 15 January 1978, Ms. Nary saw an oblique profile of the intruder, that ist his face was turned away from her (R 6082). IftUs view of the intpuder's face constituted sufficient basis, upon which to make an identification based on afullprofile photograph, then the partial frontal! profile seen hy Neary in the newspaper prior to7 April 1978is more than sufficienttotaint her recollecthn, The State thus unnecessarily, by its two month.delay, exacerbated the risk that its only eyewitness would 10s or abandon whatever visual image she might have possessed of the actual intruder and adopt the visage highlighted by the media. See Baxter v. State, supra, 355 So.2d 1234, 1238. Like the hypnosis session, Neary's access to and viewing of the widely disseminate photographs of Appellant precluded the court from any opportunity to determine whether the certainty she claimed sprang from her observations or from subsequent suggestion. Since the source of Ms.
Neary's certainty is Unclear, the trial court erred in considering it as evidence of the reliability of her identification.
The issue of the amount of time which elapsed between Ms. Neary's sighting and her identification of Appellant may be dealt with briefly. Between 15 January 1978 and 7 April 1978, ample time existed for the hypnotic session to simultaneously distort her memory and eliminate any previous misgivings as to its veracity. Additionally, the two months between 15 February 1978 and 7 April 1978 was sufficient time to flood the media with pictures of Appellant and sensational accounts of the misdeeds ascribed to him. As such the relative " brevity " of time that elapsed between Ms, Neary's sighting and her identification provided no guarantee of its reliability.
None of the indicia of reliability enunciated in Manson 0. Byatwaite, supra, 432 U. S. 9 8, and ive2 V. Bd,3goers, SUPTQ, 409 U. S. 188, wee present in the instant case. By failing to promptly conduct eyewitness identification and by using aless reliable method of identification, the State heightened the existing risk of misidentification.
See Appellant's Brief at 71. Threshold reliability of Nita Neary's identification of Appellant was not established.
The trial court thus erred in admitting her testimony and Appellant's conviction should be reversed.
COUNTS ONE THROUGH FIVE AND COUNTS SIX AND
SEVEN WERE IMPROPERLY JOINED AND TiEFUSAL TQ
GRANT DEFENDANT'S 'MOTION TO SEWER COUNTS ONE
THROUGH FIVE FROM COUNTS SIX AND SEWN
RESULTED INA DENTAL OF DEFENDANT'S RIGHT TO
FAIR TRIAL GUARANTEED BY ART. I, 916, FLORIDA
CONSTITUTION AND UNITED STATES CONSTITUTION
AMENDmNTVI AND XrV.
Itisa fundamental principle of lawinFlorida that separate and distinct crimes cannot be tried together.
Houckins v. State, 175 Sa.2d 82 (.Flaw 19441. However, two different crimes may be tried togetherin certain situations.
Rule3.151 of the Florida Rules of Criminal Procedure states " thebasicguidelines for consolidation for trial ofoffenses charged intwoor more informations, as follows:"
(a) For purposes of these Rules, two or more offenses are related offenses ifthey are triableinthe same court and are based on the same actortransactionor any two or more connected acteortransactions. Pad
3. State, 365 S0.2d 1063 (Fla. 1st DCA 1979) at 1064.
The present case should not be consolidated Zor purposes of trial under Florida Rules of Criminal Procedure, Rule 3.151, because thetwo crimes were not based on the same act or transaction. The two crimes occurred in two different places at twodifferenttimes and thetwo crimes are not closely connected acts or transactions. Specifically, the Dunwoody crimes and theChi Omega crimes axe not closely connected to one another. The State cites Smith (2). State,* 365 So.2d 704, 707 (Fla. 1978), by noting that in Sim^th thecourt consolidated two murders which occurred during one prolonged criminal episode. The State argued thatthe present case dissimilar as the two incidents are part of one prolonged criminal episode. However, in quoting Smiththestate failed to mention thatthe two homicides were connected; infact, that of the three men who committed thefirstmurder, one waste victim and the other two were th.eassailantsinthe second homicide. Smith, xqra,. 365 SP. 2d at
707. IN BUNDY, no such connection exists between the two events. The only similarities between theChi Omega crime and the Dunwoody crime are thefactsthat (-1)the victims in each instance were young white wornen (R-7060); C2) each victim was battered with some abject (R-70611; (-3). the crimes occurred on January 1 5, 1978 (R-70601; and (41 all were asleepin bed (P-7061) and BUNDY was accused OX each..
However, there are many distinct dis similarities between the two episodes: (1) TheChi Omega situs was a large sororityhlouse, while the Dunwoody residence was a duplex housing one person per unit; (2) the localitiesweredifferent: the Dunwoody residence was " two miles" a - 7360) from the Chi Omega sorority house; (31 the two episodes were an hour and half apart [Chi Omega at about 2: 3Qa.m.
(R-6Q65) and Dunwoody at ahout 4: Q0 a.m. (E1-7329, etseq. ]);
(-4) bi. te marks (identification) were found onlyatChi Qmega;
("51 the. cause ofdeathoftwo of thevictimsatChi Omega was strangulation; these was no evidence of strangulationat Dunwoody; (6) atthe Chi Omega house suspect (identifica - tion) was seen witha possible weapon in hand, whileat Dunwoody no suspect was seen and no weapon found; and C7) at Dunwoody some signs of forcedentrywere found and no sure point of entrywasever determined at the Chi Omega house.
In lYaZZ 2. Stcxte, 66 So.2d 863 (Fla. 151532 behearing denied September 1 2, 1953), thecourt stated that the procedure which the Supreme Court had approved in civil cases, that of ordering consolidation of cases, is pemissibleformi $ nla cases where the causes are of the same general nature, arise out of the same eventortransaction, involve the same orlikeissues, and depend largely on the same evidence. The Ha22 rationale precludes consolidation of the Dunwoody episode and the Chi Omega Crimes. Neitherthe same evidence nor the same witnesses werepresentedin the respective cases. Thebite mark evidence was only used to "prove"identity intheChiOmegacrime. Human hair samples were used to "prove" identity inthe Dunwoody crime.
IN AshZey uSt ate, 265 So.2d 685 @la. (1972), the court refused togranta motion toconsolidate. AshZey also involved two separateepisades. Thefirst episode involved four deaths, one immediately after the other, atthe same place, and all were presented on the same evidence. The second episode involved one homicide an hour earlier.
Factuallydistinguishable from the other fourl the offense was committed atadifferentlocation and was based on different evidence.
Applying AshZey to BUNDY, the Chi mega and the Dunwoody crimes were improperly joined. The assaults and batteries at the Chi Omega house were in close proximity in time and space, but the single battery at the Dunwoody residence was two miles (.R-7360) and mare than an hour later.
The State distinguished the Ashley case Zrom BUNDY by stating that the defendant in AshZey sought the motion to cansalidate rather than the state. This is distinction without a difference; the same criteria applies to consolidation as to severance.
Finally, the State (Brief of Appellee at 46) concludes without citation that Appellant was not legally prejudiced. Lhzited States. F ' out, 540F. 2 d 733 (4th Cir.
(1976) recites the underlying law behind Rule 8 and Rule 14 of the Federal Rules of Criminal Procedure which are virtually identical to Florida rules. The essential ingredient in the element of prejudice is the fact that misjoinder creates a prejudice of supposed criminal disposition. i&<ted S*ates v. FO ~ d z, supra, 540 F.2d at 536. In other words, the jury would become awaxe and conclude that RUNDY was guilty of the Dunwoody offense simply because of heing convinced of his alleged involvement inthe Chi' mega inci - dent. For instance, the bite mark and eye witness identifica - tion relative only to the Chi Omega case unnecessarily prejudicedtheprosecution of the Dunwoody case inthe joint trial proceedings. cf. UnitedStates -21., Feast, sapra, As discussed in the Initial Brief of Appellant and not rebutted by the Answer Brief of Appellee, the extrinsic offense evidence which would have been admissible 3n a separate trial creptin through improper joinder. Reversal fora new trial is mandated,
THE JURY SELECTION PROCESS YIOLATED
THE WITHERSPOUiV DOCTRINE, Witherspoon IZZinois, 391 U. S. 510, 88 S*. Ct, 710, 20 L.Ed.261. 6 (1968)., allows a trial court to exclude a venireman for oppositiontocapital punishment only when the prospective juror makes itmrnistakablycZaar: (1) that he willautomaticallyvoteagainstthedeathpenalty regardless of the evidence, or (2) thathis attitude would prevent him from making an impartialdetermination of the defendant ' guilt or: innocence, During voir dz"re venireman Westbrook expressed that she could make an impartialdetermination of BUNDY'Sguilt or innocence despite her reservations concerning thedeathpenalty (R 4267-4268). That the court's subsequent obfuscation of theissue (to - wit, thatthe death penalty would probably ensue a finding of guilt) resultedin Westbrook'seventualequivocation on theissue (R 4273-4274). does notjustifyherexcusal for cause".
The United States Supreme Court addressed theissue in Adams Texas, 448 U.S. 3 8, 100S.Ct. 2521, 65L.Ed.2d /F Defense counsel, contraryto the State ' s assertions, (Appellee ' sBriefat 49-5Q), did not waive his Witherspoon objections with regard to Ms, Westbrook. Counsels state - ment "all right " (R 4274) followed thecourt ' s directive that counsel " [ state [ his ] obj2ctioninthe reconrd'l (Id.1.
Counsel ' sstatementthusconstituted an express-~ of assent tothe court'ssuggestionthat he make his objection. IT does notsupporttheinferencethatthe statement "all right" indicates waiver of objection, "1eithernmerousness, emotional involvement I nor inabili. tyto deny or confirm any effect whatsoever is equi3talent to an unwillingness on the part of the jurors to follow the courtls instructions and obey their oaths, regardlessoftheir feelings about the death penalty, (Emphasis supplied.) Adama v. Texcccc, ~ pra, la0 $.Ct, Ms. Westbrook made clear herabilitytoevaluatethe evidence without being influenced by the possibility of capital punishment (P 4267-4268). AT best, her subsequent equivocation (P 4273-4274) evidenced such an " inabilityto deny or confirm."
Any allegedinconsistencyin her responses didnotconstitute the clear indication that she could not impartially decide theissue of guilt which isrequired by law.
The, wid~ire of venireman Constance reflects similar abuse. Constance @ responses tothequestionsofboth counsel (R 5390-5395) indicated conscientious scruples against thedeathpenalty, but did not demonstrate any clear indication that his beliefs would prevent him from performing his duty asa juror. Hestatedthat he did not know ifhe could returnaguiltyverdict "knowing that it might lead to the imposition of the death penalty.'' hrtphasis supplied) (.R3591). Only when the court asked him if he could return a verdict ofguilt knowing that it odd subject the defendanttocapital punishment did ven2reman Constance - express thathe "didn't belle" tliat he could do SO (R 5394-5395).
Thus, as with venireman Westbrook, the court heldthatvenire - man Constance could not perform his duty to render an impartial verdict unless he was willing to impose the death penalty upon a finding of guilt. "A state may not entrust thedeterminationof whether a man should live 01 dieto tribunal organized toreturna verdict of death.,'' Witherspoon. IZZhp?; s, szp ~ u, 391 U.S. at 521, The exclusion of single venireman in violation QE theWitherspoonruleinvalidates any resulting death sentence.
Davis v, Georgia, 429U.S. 122, 97 S. CT. 399, 50 L, Ed.2d 339 (19762. Therefore, since both veniremen Constance and Westbrook were improperly excluded, BUNDY'S sentence should be vacated.
THE COURT ERRED IN DENYING DEFENDANTK$
CJ3ALLENGE TO THE GRAND JURYAS UNTIMELY
AND THE FAILURE TQ TIMELY APPOINT COUNSEL
DENIED DEFENDANT THE RIGHT TO EFFECTJYE
ASSISTANCE OF COUNSEL.
InitsAnswer Brief, the State made a, number of attacks on BUNDYKS rightto challenge the hnpanelment of the grand jury which subsequently indicted h3n and his right to appointed counsel for that purpose. First, the State asserted that grand jury proceedings are not adversary in nature. Appellee'ss Brief at 56, citing Antone z. Sta - tQ, 382 SO. 2 d 1205 (Fla. 1980); Gerstein IJ. Pugh, 420U. S.
103, 95 S. CT. 854, 43 L. ED. 2 d 54 (-19751; and Annotation "Accused'sRightsto Assistance of Counsel actor Prior to Arraignment;" 5 A.L.R. 3d 1269 - 1351 and 198pocket part at 174 The "adversariness" ofthe proceedings is relevant because case law has determined that it isthecriticalstage of the prosecutorial process which triggers. therighttocounselafterthe commencement of an adversary judicial criminal proceeding. Brewer 0. VCZZiams, 430U. S.
S.Ct. 2568, 37L.Ed.2d 619 (-1973); Kirby. IlZinoCs, 406U. S.
682, 92S. CT. 1877, 32L.Ed.2d 411 (-1972); C ~ Zeman nv. AZabama,
States D. Wade, 388U.S. 218, 87 S - CT, 1926, 18L.Ed.2d 1149 In the BUNDY prosecution, both. hearings cited by the State were adversary judicial criminal proceedings.
Firstly, prosecuting and defense attorneys appeared and presented opposing arguments (R 2640-2676, SR 266-288).
The hearings were held before two different judges, and were judicial in character. Id. Finally, had either court granted BUNDYKS grand jury challenge, the form of the hearings would have been substantially similar, i.e.
adversary and criminal proceedings, notions to quash on the basis of a tainted grand jury, and any other hearings that the two trial judges might have allowed on the grand jury challenge, were, and would have been, adversary judicial criminal proceedings. As such, the right to appointed counsel accrued upon maturation of a grand jury challenge.
The State also asserted that BUNDYISfailure to timely raise objections to the composition of the grand jury constituted a waiver of hisrighk to abject. Appellee'ss Brief at 56. The failure to Qbject hefore the impaneln-int, however, sprang from the unavailability of counsel, who €-qd standing and the opportunity to raise the issue CSR 276-277). The right to object to a grand jury presupposes an opportunity to exercise that right. Reece. Georgia, supra, 350 U.S. 05,
89. Its absurd toinsistthat BUNDY had theright when counsel wasnotappointed for that purpose until after impanelment of the grand jury. Id.
Even if, as theState urged (Appellee'ssBriefat591, BUNDY had constructivenoticethat the grand jury would consider him asuspectinthe Chi Omega slayings, his failure to object before impanelment did not waive his right to object thereto. The State ' s argument is predicated on theassertionthatthe search of BUNDY'S mouth gave him "constructivenotice " of the grand jury'sinvestigation (Appellee'ss Briefat 55, 5 9). Although theState never made it clear, its rationale seemed to be that murder is a capital crime and an indictment by a grand juryisa prerequisite to any prothatthepoliceinquiry into the existence of any evidence linking BUNDY to the crimes notified him of the grand jury'sconsideration of his case.
The Florida Supreme Court has addressed this issue.
IN State. Lewis, 11 So.2d 337, Fla. (19431, the defendant (unlike BUNDY) was. formally charged with the offense Crape) which the grand jury later considered. Both daandant and his counselwerepresentatthe arraignment where they were informed (again, unlike BUNDY) thatthe grand jury would be impanelled toinvestigatethe charge. State A Lewis, supra, 11 So.2d 337, 338. Arguably, the Florida Supreme Court could have reached the conclusion (nothwithstandingtheactualnotice) thatthe rape charge constituted noticethata grand jury investigation would ensue. When Lewis was decided, rape was a capital crime. 5 794.01(1.)I Fla. Stat. (.l9411. Then, as now, prosecution for capital crimes could only occur following indictment by a grand jury. Article 1 S 15, Fla. Const. (19681, Preamble § 10, Fla. Const. C18681. The Florida high courtm.z"gkt have inferred (.ax theState would have it now infer) notice of the grand jury proceedings from thefact of the. criminal charge. Such a holding would have precluded thedefendant from objectingtothe composition of the panel. 5 905.05, The Florida Supreme Court inLewisdid not adopt such rationale.
IT is hardlyconsistentwiththespirit of fair trialto assume that capital offense will be lodged against them and then require them bo challengethe competency of the grand jury before it is drawn. They would in other words be required to defend againstaprobabilitythat may never become reality. If one charged witha crime is tobe accorded reasonable time to prepare his defense, he isnotrequired to assmethat he will be indicted, (.Emphasis supplied. I State P. Lewis, /FThe statute is substantiallyidenticaltothestatutein effect, S 905.05, Fla. Stat. (19781., at the time of prosecute, on.
Even with actual notice and the assistance of counsel, the defendant did not have to predict the grand jury's finding in order to preserve his right to challenge. In the hstant case, BUNDY had neither notice nor counsel to enable him to assert his rights before impanelment. He wash effect required first to assume that the grand jury would investigate his case and then that an indictment would follow fora crime for which-he was neither arrested nor arraigned.
Lewis requires the defendant to make neither assumption in order to preserve his rights. Therefore, BafNDY did not waive his right to object to the composition of the grand jury.
v. S ~ ate, 292 So.2d 633 (Fla. 19741, citingRp3as, The Dykman decision specifically rejects the suggestion made by theState (.Appellee'ssBriefat58):
This requirement af showing factual basis for the challenge inordertorequirea full scale investigation of the panel does not, of course, requirethatthechallenger show the panelto be improperly constituted, but doesrequirethechallengerto assert facts tending toraisea doubt as to whether thepanelmay improperly constituted; if such factual assertions are made, an inquiry will thenfollowto see if such suspicion, duly alleged, is supported by proof. (Emphasis inoriginal,) Dyban3. Stage, The exhibitsattachedto BUNDY'S motion establish the existence of persuasive, sensationalpretrialpublicity.
The fact of the medials histrionic coverage of the Chi Omega case would easily have justified an inference that a grand jury panel might have been affected thereby.
Because of this, thetrial court should have allowed an inquiry into whether the possibility of impartiality and prejudicewasinfactareality, The court8s failure /-of prejudice because the court'sdecision prevented him from determining its existence. IT was this denial of opportunity which has resulted in irreparable prejudice.
to do so constituted error.
The Statehasfurther urged that EUNDY had rightto appointed counsel forth purpose of a grand jury challenge. Appellee'ss Brief at57, The State's proffered rule would create conflict between the statutes governing the issue. 5 27.51(11 I Fla. Stat, (_1977)_ guaranteed public defender assistance to all indigent persons arrested for or charged witha felony, Rule 3,11l(a)., Fla. R. Crirn. P. (1972) further required that counsel be appointed an indigent person " when he is- far really charged with an offense, oras soon as feasChZe aftarcustodiaZ restraint or upon his first appearance before a committing magistrate whichever OCCUTG earliest," By law, BUNDY was entitledtoappointedcounsel as soon as be Mas subjectto custodial interrogation in Pensacola regarding the Chi Omega slayings. 5s; 9Q5.03-05, Fla. Stat. (-1970) granted BUNDY theright to challengethe grand jury. The course advocate by theState would deny BUNDY the opportunityto assert astatutoryright through counsel after the point in time when hisrighttocwnsel accrued asa matter of law.
The Staters assertion that *Appellant had notrighttoappointedcounselprior to his indictment (Appellee'ss Brief at57) flies in the Ace of logic and the law, The only authority cited in support of the State's assertionwasUnitedStatesu Halley, 431 F.2d 1180 (9th Cir. 1970). The complete discussion of defendants * preindictmentrighttocounselinthe decision is, repro - duced below.
Defendant was notentitledtothe assistance of appointed counsel during the period fromthetime he became a suspect, November 25, 1966, tothe timetheindictment was returned on the bank robbery charge, April 10, 1968. UnitedStatesv. HaZZey, The HaZZeydecisioncited no precedent, relied on no statute, and offered no rationale for its holding. The section of the opinion reproduced above has not been citedin any subsequent decisions in any court. HaZZey is nothing more thanarecord of judicial result. It providesneitherauthority nor principle tosupporttheState ' position, Finally, theState argued that Judge Rudd's self - reversal on the appointment of counselindicatesthat he would have appointed counselforthe grand jury challenge if RUNDY had so requestedpriorto impanelment, Appellee'ss Brief at 60. This actionpresentsan analogy totheprinci - Reece noted the irony inherent in any situationin which-one lawgrantedasight and another law precluded its exercise.
Reece, supra, at 89. Here, thecourt granted the opportunity to exercisetherightwhile denying the right itself* It strains credibilitytoprofferthisact as evidence thatthecourtwas "determined to err 3f err at all on Appellant ' s side." Appellee ' s Brief at 57. The court's action was equally consistentwiththetheorythat he was committed to grant the rightto counsel only after it could do BUNDY no good whatsoever. This alternative theory is not offered to ascribe any motive to the courtqs actions. It is offered to demonstrate the futility of predicting what the court might have done on the basis of what it did ina tac.ku&lly dissimilar situation. The State's prognostication is thus without foundation and is not probative, In conclusion, it was the State, and not BUNDY that was placed in the "heads I win, tails you lose'! predicament. BUNDY, a lay person, was held to Irknow"by virtue of statutory notice the existence of the grand -jury bvestiga - tian when his attorneys (.for all anyone can see1 were unaware of the proceedings. Even fit he attorneys had been aware of the impanelment, they had only been appointed to represent BUNDY with regard to charges unrelated to the grand jury investigation, Thus, BUNDY\S attorneys could preserve his rights only if they went beyond the scope of their authority and challenged the panel of a grand jury investigating charges completely unrelated to those for which they were appointed. In fact, RUNDYRS attorneys did precisely that (BR 266-288, R 2640-2676). If their challenge was, as the State suggested (Appellee'ssBrief at 581, a shot in the dark, it is only because the circumstances permitted no other. They, as discussed supra, were under obligation to assune neither investigation nor indictment, Eyen if they were under such an obligation, they had no clear indication that they had the authority to raise such a claim. Even the trial judge (Rudd) vacillated on the point.
Under these Circumstances, ne ther BUNDY nor his attorneys attempted the grand jury challenge prior to impanelment. As such, the State has argued, BUNDY wived his right to challenge, but, for practical purposes, dfd not have the opportunity to so do. After impanelment, the belated appointment of counsel (.for the purpose of the challenge) afforded him the opportunity, but he was denied the right.
To borrow the Staters idiot, "heads, the State wins; tails BUNDY loses. " Forced to choose between the 2: mpassible and the unacceptable, BUNDY was held to have waived his rights before he had the chance to exercise them. The court's denial of the motion to challenge the panel denied BUNDY due process of law and thus constituted prejudicial error.
THE TRIAL COURT ERRED IN ADMITTING
THE BITEMARK IDENTIFICATION TESTI-
MONY.
The State has attempted to support the trial court's admission of the bitemark testimony by employing a two-pronged argument. Citing Jent. Sta $ e, 400 (sic) So.2d 1024 (Fla.
(1982) * and Peek v. State, 395 So.2d 492 (Fla. (1980), the State analogized bitemark evidence to hair analysis which has been held admissible despite the inability to render a positive identification. (See Appellee'ss Brief at 62) In Peek, however, the State employed a method of hair analysis so precise that only 2persons in 10,000 could have produced hair samples which were exactly consistent with each other.
0 Peek v. State, supra, 395 So.2d 494. IN the instant case, 4 out of 5 dental samples were "consistent" with the State's photograph of the bitemarks. (R9203 - 9204). The evidence was too unreliable to have warranted admission by the trial court.
Coppolino. State, 223 S0.2d 68 (Fla. 2d DCA 1968) = * *
1. Qualifications Dr. Souviron; s partiality and bias should have disqualified him from testifying in the BUNDY trial. People. Kelly, * The citation is a mistake, -
see 408 So.2d 1024, * * CoppoZino, although much relied on by the State, does not support its case. In CoppoZino, the test used produced positive results, not as here, negative inferences.
0 549P.2d 1230 (1976). He deliberately violated the trial court's order to remain publicly silent on the biternark evidence until a jury had been empanelled. This action severely jeopardized BUNDY'S right to a fair trial. (R 1142-1144).
In Court, Dr, Souviron testified first that the meeting he addressed was closed to the public, that he was not aware of Judge Miner's closure order and, finally, that he could testify objectively at trial. Before the Court accepts (as has the State) Dr. Souviron's self-serving assertions it should examine the truth of the one statement that can be verified from the record. However, "closed" the meeting may have been, it was certainly "public" enough to enable a member of the press to publish a story entitled, "Bundy's Teeth Match Rite on Girl's Body, Expert Says," in which the writer included direct quotations from Dr. Souviron to the effect that no other set of teeth could have made the marks. (R 333-335)* The State's paeans to judicial discretion change neither the evidence of Souviron's misconduct nor the impact of such misconduct on prospective jurors, Dr. Souviron's actions established his bias, and the trial court committed error in allowing him to testify.
2. Factual Basis Following its discussion on the photographic enlargement of the bitemark, the State "distinguished" UnitedStatesv.
*The date of the article does not appear in the record. The article, however, mentions that DR, Souviron's statements were made at a forensic conference in Orlando. The article also0 states that BUNDY was still taking depositions at the time of the writing. This establishes that the conference occurred during the effective period of the order.
a Tranmski, 659F.2d 750 (7th Cir. 1981), on the basis of the clarity of the photographs in the BUNDY case. (Appellee'ss Brief at 7 0 - 7 1). The State has not merely made a distinction without a difference, it has failed altogether to address the issue crucial to both the Tranmski decision and the BUNDY case.
InT ' ranmski, the government introduced the testimony of an astronomer to prove that a picture (introduced by the defendant to establish an alibi) could not have been taken on a certain date. The astronomer attempted to establish the date by computing the sun's azimuth (the number of degrees from true south) and altitude (the number of deqress above the horizon) by measuring the shadows in the photograph and a computing the angles trigonometrically. The Seventh Circuit faced on appeal, the issue of the competence of the evidence.
The court relied on Federal Rule of Evidence 201(b), which empowers courts to take judicial notice of facts not subject to reasonable dispute. The Rule provides of judicial notice of facts:
(1) generally known within the territorial jurisdiction of the trial court; or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b), 28 U.S.C.
On the authority of Rule 201(b), the appellate court addressed the merits of the government's case, and found the astronomer had failed to account for the possible slope of a the ground which would have affected the commutation of 0 the sun's altitude. The government's expert also failed to establish the orientation of the backwall of the house, without which there existed no point of reference from which to derive the sun's azimuth. After taking judicial notice of the foregoing predicate facts, the Seventh Circuit panel ruled the admission of the astronomer's measurements erroneous and reversed the defendant's conviction.
In the BUNDY case, as inT ' ranmski, the crucial missing factors are angles. It is a matter of common experience* that the apparent size and shape of an object will vary according to the angle and distance from which the viewed observes it. The only evidence the record shows of the distance from the camera lens to the bitemark is the post hoc approxia mation of Officer Winkler made over eighteen months after he took the photograph. (R2780). More importantly, at no point does the record indicate the angle from which Officer Winkler took the photograph. As such, the State failed to lay an essential piece of evidentiary foundation. The trial court had no way of ascertaining whether the view preserved by the bitemark photographs corresponded, in terms of the angle perspective, to the acetate overlays used to make the comparison.
The State's failure to preserve the angle of perspective of the bitemark photographs renders, ue2 non, the bitemark evi- * Of which this Court may take judicial notice, as did the court is virtually identical to Fed. R. Evid. 201(b).
a dence without foundation, and hence, inadmissible.
Another matter of common experience reveals the faulty foundation which under lay the bitemark evidence. The witnesses for the State made bitemark comparisons witha plastic replica of BUNDY'S teeth. The model was lowered into a medium and photographed. From these photographs the witness made acetate overlays which were used, along with the model itself, for comparison to the photograph of the bitemark.
(R 2812-2861). Dr. Souviron made the comparison by placing the acetate overlay over the bitemark photograph and by dressing the plastic model straight down into the photograph.
(R2832, 8712). Human beings (exceptincj breaks of nature) do not bite objects by opening their mouths to a 180' angle and 0 lowering their upper and lower jaws onto the object being bitten. But that was the precise technique used to produce the result that the BUNDY mould would produce an identical impression to the impression preserved on acetate.
The angle of the bitemark itself, as well as that of the camera could not logically match that used to make the comparison. No basis for cornparison exists in fact, between the bitemark picture and the exemplars used by Dr. Souviron. The absence of a foundation for comparison rendered the trial court's admission of the evidence-erroneous.
3. Opinion of Guilt The State offered four-pronged defense of Dr. Souviron's personal observation outside the scope of his expertise. The 0 State asserted that the question which elicited Dr. Souviron's response was improper, No rationale was offered to support the assertion. Again, the State treats Dr. Souviron's bare, unsupported allegations as the measure of truth. Investigation of the record reveals that defense counsel was trying to establish the age parameters within which the assailant could have fallen. Counsel based his qyi'ery on a previous response by Dr, Souviron that a "large child" could have made the bite. (R 8787). Since the resolution of the defense's line of questioning related to the size of the population whose members could have inflicted the bite, the question was reasonable, relevant and proper. Dr. Souviron's non responsive exasperation to counsel's detailed cross-examination did 0 not render the question immaterial or spurious.
The State next argued that defense counsel's question initiated Dr. Souviron's response. (Appellee'ss Brief at 7 2).
Ina strict sense, this is true, but the Court should not confuse (as has the State) the initiation of response with the invitation of error, Id. Counsel could not get a responsive answer to his question whether a 13 or 14 year old could have made the bitemark (R8788). When he pressed the issue, Dr. Souviron made the remark here addressed. Id.
Although the response followed a question by counsel, Dr.
Souviron's answer exceeded the scope both of the question and his expertise. Counsel's question did not address, nor a did Dr. Souviron's area of expertise authorize the consideration of "ancillary evidence." (R 8788). It was further irrelevant to the purpose of the cross-examination in general and to the thrust of counsel's question in particular that there was blood on the rectal areas, Id. Finally, Mr. Harvey did not ask, nor did resolution of the bitemark identification issue in any way require the jury to determine, whether the victim was beaten to death. In no way did defense counsel provoke or encourage the response that Dr, Souviron gave. To adopt the State's interpretation of invited error would license opposing witnesses to make improper prejudicial comments with impunity, It would further deny the injured party recourse because he would have "waived" his abject tion a to prejudicial comments merely by exercising hi right of cross-examination. The innocuous question did not invite error because it was the witness who used it asa vehicle to make an improper statement. Dr. Souviron's misconduct, and no other, gave rise to the error complained.
The State further asserted that BUNDY waived his claim of error because his counsel failed to make a contemporaneous objection to Dr. Souviron's improper comment upon the evidence. (Appellee'ss Brief at 72). In support of the contention, the State cited, but did not discuss, Castorv.
Castorv. State, supra, 365 So.2d 701, and cases cited in footnotes below,* Analysis of cases involving evidential questions in addition to the issue of waiver of objection to jury charge reveals that Appellant's contention is a distinction witha difference.
The bitemark evidence constituted a major portion of the State's evidence. The State founded the bulk of its case on identity evidence, such as the bitemark analysis. The bitemark evidence goes both to the foundation of the case and to the merits of the cause. Therefore, any assignment of error regarding the admission of the evidence is an assignment of fundmnentaZ error which need not be raised at trial0 in order to be addressed on appeal. Clark. State, 363So, 2d 331, 333 (Fla. 1978); Sanfordv. R - ~ hin, 237 So.2d 134 (Fla. 1970).
Even if the trial court's admission of the bitemark evidence did not constitute fundamental error, this Court may consider it on appeal. York. State, 232 So.2d 767 (Fla. 4th DCA 1969) involved a jury charge objection waiver issue and evidential issue concerning the sufficiency of identification testimony. The Fourth District panel deemed that defense counsel's failure to register a contemporaneous objection to the jury charge effectively waived defendant's right to raise * This is also true with regard to Johnson. State, 314 So.
0 2d 21, 248 (Fla. 1st DCA 1975).
the issue on appeal. York. State, supra, 232 So.2d at 0 768. With regard to the evidential sufficiency issue, however, the appellate court overlooked the failure of defense counsel to make any objection at trial and because the defendant's liberty was at stake, agreed to consider the evidential issue for the first time on appeal.
In Gibbs (2). State, 193 So.2d 460 (Fla. 2d DCA (1967), the Second District panel addressed the propriety of a judicial comment on the evidence. In deciding to address the issue on its merits, the appellate court noted that:
Objections were not made in the lower court and the making of those comments was not such fundamental error of law as to constitute the sole cause of reversal. However, the error may be considered with other assignment oferrorin determiningwhetherthe szb stantiai! rightsof the defendant ha zle beeninjmiousi! affected.
(emphasis supplied) Gibbs v. State, supra, 193 So.2d at 463.
Whether fundamental or not, BUNDY'S objections may be considered for the firts time on appeal.
Finally, the State has contended that Dr. Souviron's testimony was neither prejudicial nor improper because Dr.
Souviron did not express his opinion on the ultimate issue of fact regarding the factual basis of the bitemark testimony. (Appellee'ss Brief at 73). The State is partially correct. Dr. Souviron's statement did not address the factual basis of his testimony at all. Dr. Souviron expressed his opinion on a subject beyond the scope of both his expertise and his personal observation with no factual basis whatever. His excursion beyond the limits of the permissible scope of his testimony resulted ina n improper and highly inflammatory statement. It strains credibility to maintain that such behavior is either permissible of non prejudicial. Dr. Souviron's statement, veZ non, made the admission (or at least the further use of) his testimony fundamental error.
' 4. Standards Discussion of the question of standards must begin with the concession by the Statels expert witness that there currently exist no standards for positive bitemark identification (R2873, 8728). No forensic odontologist may conclude that one bitemark identi cally matches a given set of teeth. (R 2868). He may only conclude that the set of @ teeth is or is not inconsistent with the bitemark.
For such a bitemark " standard " to have any meaning, it must be sufficiently precise to exclude, by its application, a significant number of other sets of teeth. The test applied in the BUNDY case failed to do so. Out of five sample sets of teeth, Dr. DeVore could only exclude one because of "morphological peculiarities." (R 9203-9204). The standard used to prove Appellant's identity as the assailant, to-wit, that the bitemarks were not inconsistent, "identified" three persons as the assailant. To allow an expert witness to cloak such a feeble discriminator with the label "reasonable * The expert witnesses on both sides of the case agree on this "standard." (R 2868, 8728, 9204, 9216, 9218), degree of dental cei taint! makes his testimony not merely 0 unreliable, but affirmatively misleading. In fact, the model of BUNDY's teeth was so "consistent" with the photograph of the victim's bitemarks that the same finding of "consistency" was found regardless of which teeth was placed in which biternark. (R 9192-9193). In other words, no matter which way the acetate overlay was placed over the picture, the consistency was the same. Id. Given the persuasive value of expert testimony and the unreliability of the test used, admission of the testimony was prejudicial and improper.
THE TERM FAILURE'^ CONTAINED IN THE JURY INSTRUCTION$ AMOUNTED TO JUDICIAL COMMENT ON
THE ACCUSED'S EXERCISE OF HIS CONSTITUTIONAL
RIGHT TO REMAIN SILENT.
Over the strenuous objection of defense counsel (P9476 - 9477), the trial court refused to deleted (or at tion:
[A] defendants failure* to take the witness stand must not be considered in any rnannex an admission of guilt, nor should his failure to take the witness stand influence your Verdict in any manner whatsoever (R 97491.
The State has argued that BUNDY waived his right to object Appellee'ss Brief at 78. Its rationale went thus. The defense requested an instruction to the effect that the exercise of one's right to remain silent could not justifyan inference /FThe undesirability of the use of a term such as " failure " to describe the exercise of a constitutionally guaranteed right while perhaps obvious, in the interests of absolute clarity merits repetition. "Failure" is defined as an "omission of performance of an action or a task, esp.
neglect of an assigned, expected or appropriate action. " Webster ' third New InternatCanaZ Dict{nary (Nerriam Co.; Springfield, Ma. 1971). To use a term with such negative implications to describe the exercise of an "ahsolute right" (See R 9749) gives rise to an extreme (and completely unnecessary) risk of prejudice. If the purpose of the instruction is to prevent khe jury from making unwarranted inferences of guilt from the defendant's silence, it seems peculiar that a court committed to proa testing this interest should insist on such language as "failure "to" in preference to the "does "not" language of defense's proposed instruction (See R 1522, 9476-9478) a of guilt (R 1522). Once the defense requestedsuck an instruction, thecourt could nQt refuse asa matteu of constitutional law. Carter v. Kentucky, 45Q U.S. 288, 1Q1 S.Ct. 1112, 67 LmEd,2d 241 (19811, Since the. defense requested and received the instruction the defendant was estopped from raising it as error on appeal, Appdke'sBrief at 78.
The State ' theory of nee.ssity relied on several omissions of material fact. The record simply failsto support any theory of "acquiescence" on the part of the defense. The court rejected the defense ' s propoffed instruc - tion (R 1522). Defense counsel timely objected to the courtIsinclusion of the "failure" language in the instruction an defendant ' s silence, stating explicitly the specific grounds therefor CR 9476-94781, To-wit: Ms. Good objectedto th-pejorative impact of the term "failure totestify '!
and thatthe mention of any inference of guilt might suggest that the jury reach such a "conclusion" (-R 9476). The court itself recognized that there existed "no question about thefact that [ the defense] reserved the objection (R9478), TheStateciteda number of cases in support af its " estoppel " argument (AppelleeBs Rriefat781, none of which controltheinstant case. The State forwarded ZhC..t.ed States v. Williams, 521 F.2d 950 (D.C. Cis. 19751 as authority for its position. Appellee'ssBrief at 78. IN WCZZ$"ams, the trial court gave an instruction (requested by one of several defendants) regarding the accused's absolute right "not to testify"* over the objection of the other defendants. The District of Columbia Circuit upheld the trial court1$ action " [n]notwithstanding the merits" (discussed infra) on two procedural grounds, lhaitedStates9, W.wizziams, szqm:, 521 F.2d 950, 955-956. The codefendants did not timely object, nor did they state with specificity the grounds therefor. Id. As such, the court held thatthe had waived their right ta so object. Since, in the instant case, defense counsel timely objected and stated with specificity the basis far her objection, she did not waive BUNDY'S right to so object. Therefore, mitad States z1.
WiZZiams is here inapposite.
Likewise, the Statesoughttorely on MePhse z'. State, 254 So.2d 406 (Fla. 1st DCA 1971) to support its estoppel argument. In McPhee, defense counsel moved (somehow SUE ~ SS - fully) to require the State to elect between two counts of a racially valid indictment. Defense counsel argued that one of the acts alleged in an indictment constituted a lesser included offense of the other. In fact, this was not the case. At trial the court charged the jury in accordance with the amended indictment. When th.e defendant was convicted, defense counsel stated the erroneous charge as grounds for its motion fora new trial. On appeal, the First District /F Note that this language was proposed lay the defense in the instant case (R 1522, 9476).
Court of Appeals upheld the conviction on two grounds. First, since the defendant moved for and received the charge he was estopped from claiming it as error. Second, since he did not make his claim of error until the motion fora new trial, his "objection" was not timely and hence waived. Only the first ground requires discussion inasmuch as the timeliness issue was addressed supra. In the instant case, BUNDY did not claim as error that for which he asked, BUNDY claimed as error that on which the court insisted over defense counsel's objections (R 9476-9478). He therefore did not l'occupy inconsistent positions in the course of a litigation."
McPhee V. State, supra, 254 So.2d 406, 409. BUNDY'S position is now what it was at trial; that the court's inclusion of the failure language constituted a prejudicial judicial comment on the exercise of his right to remain silent. Thus, McPhee does not apply to the instant case.
Smith. State, 375 So.2d 864 (Fla. 3rd DCA 1979), merits only cursory discussion. In Smith, defense Counsel did not object to the offensive instructions at trial and thus waived the defendant's right to object. As discussed supra, defense counsel in the instant case timely and with specificity objected, thus obviating any question of waiver.
Like WiZZiams and McPhee, Smith does not here control, The State has nonetheless advanced its "gotcha" argument, citing State. Belien, 379 So.2d 446 (Fla. 3rd DCA 1980). As with McPhee, Belienincludeda true estoppel situation. Defendant moved for and was granted a continuance, then attempted to secure a dismissal under the speedy trial rule. Like McPhee, BeZien got what he requested, then claimed that what he received constituted error. As discussed sup20aJ BUNDY did not assume contrary positions at trial and on appeal.
Therefore, the estoppel principles in BeZ<en like those enunciated in McPhee are inapplicable to BUNDY'S case.
Even notwithstanding defense counsel's objections* and the court's statement into the record preserving the issue, the defense's final acceptance of the State's instruction (R 9478) cannot under the circumstances operate asa waiver of right. It is a matter of constitutional right that a defendant may request and receive a charge instructing the jury not to infer guilt from the exercise of his right to remain silent. Carter v. Kentucky, sup ~ a, 450U.S. 288.
CariSer imposed on trial courts the constitutional obligation to minimize the danger that the jury will consider the defendant's silence as evidence of guilt. Carter. Kentucky, supra, 101 S.Ct. at 1122. The Supreme Court noted that:
No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum.
/F Ms. Good's "acquiescence" was made "subject to those other objections [she] just noted" (R 9478).
In the instant case, the trial court granted the request, but it took with one hand what it gave with the other. It instructed the jury regarding BUNDY'S right to remain silent, but twice referred to his "failure to take the witness stand" (R 97491. The defense team timely objected to the presence of such prejudicial language in an instruction ostensibly intended for the defendant'sbenefit CR 9476-9478).
But the trial court made it clear that the defense would take the instruction he proposed or lose it altogether (R 9478).
The court confronted BUNDY witha Hobson's choice: either to accept the instruction as it was, laden with the pejorative baggage of the references to his "failure" to testify, or to renounce altogether the right to receive the instruction*.
The court thus made the exercise of: BUNDY#S absolute right conditional upon the inclusion of language which under mined the very purpose of the right granted. This "Scylla and Charybdis" approach violated BUNDY'S right to due process of law. By no rationale could the defense counsel's forced /F The District of Columbia Circuit (whase precedent the State would have this Court adopt) (Appellee'ssBrief at 781, voiced the same concern in lh2itedStatesv. W<ZZiams, supra, 521 F.2d 950. In upholding the defendant's right to an instruc - tion charging the jury not to infer guilt from silence, even over the objections of codefendants, the District of Columbia panel observed that the right to such an instruction:
[ I3 s duly circumscribed when a defendant must choose between the substitute instruction and no instruction at all. -United States. WiZliams, Supra, 521 F.2d at 955.
acceptance of the court's partially erroneous instruction constitute a waiver of BUNDY'S right to object thereto.
The State's second major assertion is that state and federal courts have "repeatedly rejected" the argument upon which BUNDY has based this part of his appeal. Appellee'ss Brief at 79, The State has omitted to explain how any court may repeatedly reject an argument it has not encountered.
None of the cases cited in Appellee'ssBrief involved jury instructions which called the jury's attention to the defendant's "failure to testify"*. As the title might suggest, the "failure" language formed the basis for BUNDY'S claim of error on this point. Appellant's Brief at 110. Furthermore, the entire body of law relied upon by the State to support its assertion that a trial court may give a ''no inference of guilt from silence" instruction (a) involved cases in which, for tactical reasons, the defendants wanted no such instruction given and (b) was premised on the principle that judges have an obligation to protect defendants from jury speculation on their
In the instant case, defense counsel moved for an instruction on the right to remain silent (R 15221. Counsel merely objected to that part of the instruction which might have fueled the very juror speculation which such instructions are intended to deter (P9476 - 9478).
As the cases cited supra by the State suggest, courts have a very strong interest in avoiding any adverse comment or inference which might arise when a defendant does not testify. Id. Courts have an obligation to serve this interest even in the presence of the contrary wishes of the defendant. Id. If, however, the instruction is to serve (as it is intended) the defendant then its form should further and not hinder this end. Anytime a judge, in the interest of fairness to the defendant, requires an instruction prohibiting an inference of guilt by silence, he or she ought to bear in mind the consideration voiced by Justice Stevens in his dissent in Lakesi. deu. Oregon, sup ~ u, 435 U.S. 333:
Even if jurors try faithfully to obey their instruction, the connection between silence and guilt is often too direct and too natural to be resisted. When the jurors have in fact overlooked it, telling them to ignore the defendant's silence is like telling them not to think of a white bar.
The court thinks it would be very strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect. Ante at 1095 a I wonder if the court would find petitioner's argument as strange if the prosecutor or eventhejudge, had given the instruction three or four times, in slightlydifferentform, just to make sure the jury knew that silence, like killing Caesar, is consistent with honor. Lakeside 3. Oregon, sztpra, "Failure to testify" and ''not testifying" denote similar inactions, but the connotations implicit in the "slightly different form" insisted upon by the trial court undermine "the very constitutional provision it is intended to protect."
81. Although comments on refusal to testify are considered to be in the category of "non-fundamental" exrory to which the harmless error rule may apply (.Chapman v. CaZ.z'fornia, supra, A series of Florida decisions, however, has provided the direction needed to dispose of the issue. As discussed in Appellant's Initial Brief (at 112), a comment which is "fairly susceptible" of being interpreted by the jury as referring to a criminal defendant's refusal to testify constitutes reversible error without resort ta the hcrrmZess err ~ doctrine. David v. State, 369 So.2d 943 (Fla. 19791;
DEFENDANT'S RIGHT TO COUNSEL WAS YIOLATED BY
THE TRIAL COURT'S DENIAL OF HIS MOTION TO
PERMIT APPEARANCE OF FOR BOlVO OUT-OF-STATE
COUNSEL PRO HAC VICE.
TheState contended thatthe trialcourt acted within its discretion in denying Millard Farmer's petition to appear pro hue vice. Appellee*brief at 821, Bundy 22. Rudd, 581
F.2d 1126 (- 5tkCTr. 1978). and Lets v. Flynt, 439 U.S. 438, 99S.Ct. 698, 58 L.Ed.2d 717 (1979) upon which the State relied (Appellee'ssBrief at 82) did not foreclose the issue of BUNDY'Sright to appointed counsel, The opinions therein limited their discussions to the attorney's right to represent a particular client. Neither case relied on the defendant's Sixth Amendment rights. Bmdy zl. Rudd and Leis. FZynt are not applicable.
The rightto counsel is ahsolute. But a defendant'srighttoparticular counsel must be balanced against the public interest in orderly judicial procedure and the court ' s inherent power to control the administration of justice. mrited States zr, SaZinaG, 618 F.2d 1092 (5th Cis.
19781, cere. den. 439U.S. 1069, 99S.Ct, 837, 59 L.Ed.2d 34, & ndpv. AL abam a, 569F.2d 1318 (5th Cir. 1978)" United States. PouZack, 556F.2d 83 (1st Cir. 19771, cert. den. 434U.S. 986, 98 S.Ct, 613, 54L.Ed.2d 48Q;
Azabama, supra, 569F, 2 d 1318; LFnik: ed States. PouZcxck, suppa, 556 F,2d 0 3; hitedStates bx reZ Carey Yq Runds, 409F.2d 1210. Without exception, the circumstances of each case involved defendants who refused court appointed counsel and who insisted an remaining private counsel who were unavailable. IN each case, thetrialcourtgrantedan initial continuance toenablethe de€end ant to procure desired counsel. When it became evident thatthe desired counsel either (a) remained unavailableor Ua) could not prepare fortrialintimeto avoid undue delay, the trialcourt then refused further continuance. Id. Jn allStatecited cases thecrucialissuewasthe "prompt wdefficient administration of justice. Gandy v. AZuhcrma, supra, 569 F.2d 1318, 1323. EUNDY did not request a continuance when he petitioned the trialcourt to approve MillardFarmer ' s appointment to the case. His request posed no problems of delay. The cases cited by theState (Appellee'ssBriefat 83) do not apply and cannot support thetrial court's denial af the motion for appointment of counsel pro hac vCce Likewise, the "misconduct" cases cited by the State (Appellee'ssBriefat 841 do not apply to EWNDY'S situation.
NietherUnitedStates IL Kitchin, supra, 592 F.2d 9.QQ, nor UnitedStatesv. Salinas, supra, 618 F,2d 1092, involved contumacious behavior of any sort. InK<tchin, the court disqualified a defense attorney on the ground that he had worked on the same case for the United Statesattorney during thepreindictment phase, IN SaZincrs, a defense attorney was disqualified because he was implicated in the same transactions for which his clientinthat case was on trial.
Admission and membership of good standing thus create 9:
preswnpt5onofgood character which may not be rebutted except on a showing of such misbehavior as would warrant disbarment. In reEmns,; supra, 524 F.2d at 1Q07-10Q8.
The record does not show evidence of any disciplinary proceedings brought against Farmer by the Georgia, Bar. Since the record is devoid of legally sufficient evidence of Fanner's unfit ness to practice before Florida courts, the trial courts refusal to grant his motion to appear constitutes legal and canstitutfonal error.
THE COURT'S INCLUSION OF JURY INSTRUCTION
PERMITTING JURORS TO INFER KNOWLEDGE QF
GUILT FROM FLIGHT CONSTITUTED ERROR.
As Appellee conceded (Appellee'ss Brief at 88)., defense counsel, Ms. Good, objected to the State's. proposed instruction on flight and tendered a proposed instruction IR 9511- 9517). Appellee nonetheless argued that Appellant was estopped from raising the issue because Ms. Good did not contemporaneouely abject to the court'sinstruction. In so doing, the State relied on Lucas v. State, 376 So.2d 1149 (Fla. 19791, which stated the principle that an appellate court could not hear claims of error at trial ifthe defendant did not timely object to the alleged error.
Appellee'ss reliance on Lucas is misplaced. In Lucas, the defendant made no objection at trial to the error on which he based his appeal. In the instant case, Appellant timely objected to the State's proposed instruction and further stated its grounds for so ohjecting (, R 9511, 9512, 9515). Furthermore, the grounds upon which Ms. Good objected were identical to those raised by Appellant in his initial brief (Appellant's brief at 1171. AS Ms. Good stated at the charge conference:
It's unfair tQ allow the State to make these inferences from evidence of flight when you know that the jury isn't being apprise of the real and immediate circumstances, being other crimes committed by the defendant which would give rise to that flight (R9512).
If a jury instruction is requested and the basis for the request is verbalized to the court and made a part of the record, failure to object to rejection of the instruction or to repeat the grounds in the form of an objection does not preclude appellate review. The underlying has been met; the trial court is placed on notice that refusal to give the requested instruction may be error. a.. Thus, it is unnecessary to raise objections both at the charge conference and at the end of the court's instruction to the jury. (Emphasis supplied.) WiZZiams 0. State, At the charge conference, Ms. Good objected to the State's proposed instruction because it ignored issues she wished to raise in her alternative proposed instruction (R 9513- 9514). She also stated the specific grounds for her objection, thusplacingthe caurt on notice. * TO require further objection would constituteaproceduralmpwfluity and apurposeless exaltation of form oye substance. See Austin U.
State, supra, 406 So.2d 1128, 1332.
The substantivejustificationfor the flight instruction offered by Appellee likewise lacks merit. Making areasonableinferenceofguiltofaparticular offense from flightrequiresthatthere be some evidence (other than the f1igh. itself1that knowledge of guilt of thatpaEticular offense motivated the flight. As this Court noted inProfittv. State, 315 So.2d 461 (, Fla. 1975):
Thedefendantlsleavingatathe which could have been after the crime, although at an unusual hour, is, when standing alone, no more consistent with guiltthanwith innocence. Profitt v. State, ~ upra, 315 So.
2d at 465.
The more remote in time the alleged flight is from the commission or accusation of an offense the greater the likelihood that it resulted from something other thanfeeZings of guilt concerning that offense. (Emphasis supplied.) UnitedStatesv. Nyers. 550 F.2d 1049, 1051 (5th Cir. 1977).
The jury instruction given misled the jury. The jury could not have known that BUNDY had motivations to flee independent of the speculated knowledge of guilt 05 the Chi Omega slayings. Over defen sec ~ unsel ~objection, s the Court failed to instruct the jurythat it could conaidex flight as evidence of guilt only if the flight indicated guilt of the crime charged. The instruction given prejudiced the defendant's chances of a fair consideration of theissue of guilt.
DCA (1977).
THE TRIAL COURT ERRED IN DENYING DEFEN-
DANT AN EVIDENTIARY HEARING ON THE EF-
FECTIVENESS OF ASSISTANCE OF HIS TRIAL
COUNSEL.
From the State's perspective, BUNDY was an intolerable commander (Appellee'ss Brief at 93-1071, an amateur strategist, an intransigent client and an armchair general who called the shots and was " hoisted (sic) on his own petard." (Appellee'ss Brief at 94, 95, 98, 106). The thrust of the State's argument is that BUNDY's argumentative, disputatious style so hindered his counsel and was so offensive as to merit whatever adverse consequences might result. It is pointless to debate whether a defendant's personality may decide the issue of effectiveness of counsel. The issue is whether an evidentiary hearing was required.
The State cited three "representative" instances of ousness. (Appellee'ss Brief at 102). Three interruption do not an intransigent defendant make, Such a showing constitutes little more than "fly specking" with no extended discussion in support of the contention made. (See Appellee'ss Brief at 9 8).
The State also attempted to ''prove" by means of lengthy quotation from the record that counsel regularly conferred with BUNDY during the trial.
cial exasperation" which occurred near the end of a long and arduous trial, the duration and difficulty of which is obvious. (R 5338). As such, the tone of the trial court's statement may be taken with the proverbial grain of salt.
Furthermore, aside from the underlined portion of the State's quotation, the trial judge did not address the issue of consultations with counsel.
The State pointedly asserted that BUfJDY "overCrode] the decisions of his professional staff, [and] insisted an putting on witnesses who (sic) Public Defender Mike Minerva refused to put on." (See Appellee'ss Brief at 95). This "intransigence" occurred at a hearing on a motion to suppress, (not trial), at which BUNDY called Captain Poitinger, Dr.
Souviron and Nita Neary to testify. (R 3619). Given the import of these witnesses to the State's case*, it is inconceivable that the State would not have called them to testify (if only to rebut the defense's case) if BUNDY had not done so. BUNDY's calling of these witnesses was not an act of unduly petulance, but a tactical decision upon which he and his counsel differed.
Finally, the State has characterized BUNDY's complaint of inadequate opportunity to consult with counsel * Captain Poitinger conducted the photographic array at which witness Nita Neary identified BUNDY's picture.
Nita Neary was the only witness who saw the assailant leaving the scene of the crime. Dr. Souviron's testimony was the sine -- quo non for effective presentation of the State's bite mark evidence.
as an attack on the competence or good faith of his defense team. (Appellee'ss Brief at 100-102). In so doing the State has ignored the record citations given in support of BUNDY's claim in his initial brief. BUNDY objected to the trial court's to allow - failure - -consult with counsel for the purpose him to of determining whether they were prepared with regard to an important evidentiary issue. (R2597). He later objected to his inability to effectively consult with counsel asa result of the conditions in jail. He further objected the court's denial of permission to consult with counsel outside jail, because conditions in the jail made it impossible to effectively and confidentially discuss the case there (R2959).
See Boren v. State, 410 So.2d 1343 (Fla. 1982). BUNDY's counsel made similar protestations at a later stage in the proceedings. (R 5336-5337). These'incidents reflect an intention on the part of BUNDY to cooperate with, not to hinder, the efforts of counsel on his behalf. The instances of "difficulty" cited by the State cannot sustain a caricature of BUNDY as an imperious peddler insistent on ruling his superior. The State's reliance on conclusory allegations without factual illustration indicates the weakness of its case in this regard. (Cf. Appellee'ss Brief at 9 4, 9 7 - 9 8).
The State answered BUNDY's allegation that counsel was insufficiently prepared for the bite mark challenge by asserting that his expert witness testified that he had considered the evidence. (Appellee'ss Brief at 98). This - non sequiter fails to reach the issue whether counsel was prepared, which was the explicit complaint raised on appeal. The expert's consideration of the evidence is irrelevant; it is counsel who must conduct direct and cross-examination. Counsel cannot effectively examine a witness unless he or she is familiar with the evidence. The lack of knowledge in the area cannot be but prejudicial.
The State has further argued that, since BUNDY had no counsel at the proper time fora grand jury challenge, he could not have had incompetent counsel. The State's argument assumes that a claim of ineffective assistance of counsel may only occur in cases of attorney misfeasance. Such a narrow view of this category of error overlooks the near-axiomatic principle that it is not the attorney's duty, but the defendant's right to competent legal representation which under lies a claim of ineffective assistance of counsel. It is the deprivation of effective legal assistance as needed which constitutes the fundamental wrong against which the Constitution safeguards. Gerstein v. Pugh, 420 U.S. 108, 95 S.Ct.
88S.Ct. 2, 19 L.Ed.2d 22 (1970); United States. Wade, privation of this fundamental right may occur by other means than attorney misconduct. A valid claim of ineffective assistance of counsel, then does not absolutely require an omission or wrongful act on the part of defense counsel.
As discussed in Issue G, supra, BUNDY's right to effective assistance of counsel was denied him during the selection of the grand jury. Therefore, the absence of any challenge to the empanelment of the grand jury which indicted BUNDY (regardless of where the fault lay) constitutes prima facie evidence of ineffective assistance of counsel.
In rebuttal to BUNDY's assertion that counsel were not prepared to challenge the bite mark evidence, the State attempted to draw negative inferences from the timing of counsel's contrary assertions." Without additional evidence it is useless and impossible to belabor the discussion with an analysis of the credibility of the claims and counter claims. The actions (or more correctly, the omissions) of counsel speak more clearly on the issue. The evidence consisted of a photograph of BUNDY which revealed one of his central incisors on 16 February 1978 (R9583 - 9588). The tooth was chipped when Dr. Souviron made a wax impression of BUNDY's teeth in April, 1978. Lid. Thus the evidence could have shown that the bite marks, which BUNDY would have made in January, 1978, differed, significantly from those he made for Dr. Souviron several months later. (R 9983).
IF admitted, the pictures could have case serious doubt on the reliability of the State's evidence. The defense did * Specifically that since the assertions occurred long after the initial statement of unpreparednegk. they must be true.
not attempt to introduce these photos into evidence even though they were available many months prior to trial.* In addition, the court noted they would have been admitted if timely produced. (R 9830, 9988). Such flagrant omission must obviously have resulted from neglect or ignorance rather than from informed professional deliberation. Knight
v. State, 394 So.2d 997 (Fla. 1981). Asa matter of law, defense counsel's misfeasance constituted ineffective assistance of counsel. - Id.
Finally, the State has emphasized Robert Haggard's experience and Margaret Good's subsequent specialization in capital appeals to rebut Appellant's assertion that the case concluded with no counsel with capital case experience.
(Appellee'ss Brief at 103-104). Appellant cannot here discuss the issue because the State has cited no section of the record establishing either Mr. Haggard Is prior capital case experience or Ms. Good's status asa capital appeals specialist.
Both the negligent omissions and blame less incapacities of defense counsel deprived BUNDY of his right to *The State has cited Dr. DeVore's testimony (R 99891, to establish that this evidence was immaterial because it would no have changed his testimony. (R 9151-9228). Dr. DeVore testified that he could not say the chip in the tooth made any difference because he couldn't match any_ specific tooth to any specific mark. (R 9989, see also 9192, 9196). In fact, of five cases of five different sets of teeth, Dr. DeVore could only say that one of them could not have made the bite marks.
If the State contends that Dr. Dare was correct in his analysis then it admits that bite mark analysis here lacks any probative value. If it argues that Dr. DeVore's analysis is incorrect then it cannot logically assert that his conclusions, that the chip would make no difference in the outcome, is correct.
effective assistance of counsel. Specifically, counsel's failure to familiarize themselves with the bite mark evidence; and to obtain the necessary photographs (discussed supra) prejudiced BUNDY's chances to exclude, or at least compromise the effectiveness of, a crucial weapon in the State's arsenal against him. The unavailability of counsel or their misfeasance, assuming they had standing to raise the issue, precluded BUNDY from receiving any kind of legal assistance, effective or otherwise, with regard to the grand jury challenge. Asa consequence, a statutorily and constitutionally guaranteed sight was waived without notice. See Issue C, supra. The resultant prejudice mandates a new trial, or at least, an evidentiary hearing as requested. Dickson v. Wainwriqht, F.2d (11th Cir/ 8-16-82) Appeal No. 81-5013.
CONCLUSION
The final summary of each section contains a "conclusion" which summarizes the precise relief sought respective to each argument. Rule 9.210(b)(5), Fla. R. App. P, For these reasons variously propounded, a reversal and new trial are in order,
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that atrue and correct copy of the foregoing instrument has been furnished to the Attorney General, The Capitol, Tallahassee, Florida 32302 by hand/& this day of September, A.D., 1982.
Law Offices of ROBERT AUGUST^ HARPER, JR.
Counsel forA p & 1 1
THEODORE ROBERT
308 East Park Avenue Post Office Box 10132 Tallahassee, Florida 32302 xc: Theodore Robert Bundy
No. 5 7, 772 THEODORE ROBERT BUNDY, Appellant, VS.
STATE OF FLORIDA, Appellee.
[June 21, 19841
BOYD, J.
This cause is before the Court on appeal from a circuit court judgment adjudicating Theodore Robert Bundy guilty of two counts of first-degree murder, three counts of attempted first-degree murder, and two counts of burglary. For the two crimes of first-degree murder the trial judge imposed sentences of death. Therefore this Court has jurisdiction of the appeal.
Art. V, S 3 (b) (11, Fla. Const.
During the early morning hours of Sunday, January 15, 1978, an intruder entered the Chi Omega sorority house, adjacent to the campus of Florida State University in Tallahassee, and brutally attacked four women residing there. Margaret Bowman and Lisa Levy were killed, and Kathy Kleiner and Karen Chandler sustained serious injuries. Within approximately an hour of the attacks in the Chi Omega house, an intruder entered another home nearby and attacked a woman residing there, Cheryl Thomas. All five women were university students. All were bludgeoned repeatedly witha blunt weapon.
The evidence presented at trial tending to prove that appellant Bundy was the intruder at both crime scenes and the perpetrator of the two murders and three nearly fatal beatings comprised numerous elements, some of them being direct and others being circumstantial evidence. The principal items of evidence were: (1) the identification testimony of a resident of the Chi Omega sorority house who briefly saw Bundy in the house; and (2) expert analysis of teeth marks left by the perpetrator on the body of one of the sorority house victims and comparison of the marks with the teeth of appellant. Auxiliary and corroborative items of evidence included: the closeness in time and similarity of the sorority house attacks and the subsequent attack; expert comparison of hairs found in the apartment of Cheryl Thomas with hairs from the head of Bundy; the presence of Bundy in the immediate neighborhood of the Chi Omega house a few hours before the murders; the presence of Bundy on the front porch of his rooming house, also in the same vicinity, about an hour after the second intrusion and attack; two instances of flight in response to the approach of police officers in the weeks following the crimes; and certain incriminating statements of appellant. These various individual items of evidence, along with others, will be set out in the context of the following factual narrative. Taken together, the evidence constitutes legally sufficient proof of Bundy's guilt on all the charges.
FACTS The evidence that was placed before the jury at the trial established the following facts. On January 7, 1978, appellant rented a room at The Oak, a rooming house near the Florida State University campus. One week later, during the evening hours of Saturday, January 14, Bundy was seen ina bar room adjacent to the campus and next door to the Chi Omega sorority house. Three women testified that they were in the bar that night, and two of them identified appellant as having been there.
At approximately 3: OO a.m. on Sunday, January 15, 1978, chi Omega house resident Nita Neary arrived home from a date and entered the house by the back door. She proceeded toward the front entrance hall of the house, where the main stairway was located. While moving through the house toward this front entrance hall, she heard the sounds of someone running down the stairs. When she arrived at the front entrance hall, Ms. Neary saw a man standing at the front door. The man held a club in his right hand, had his left hand on the doorknob, and was in the process of leaving the house. Ms. Neary saw a right-side profile of the man's face. She was able to look at him for several seconds before he left.
Nita Neary then went upstairs to her room, awakened her roommate, and told her what she had seen. Ms. Neary described the intruder and at trial her roommate testified concerning this initial description. Ms. Neary told her roommate that the man wore light-colored pants, a dark jacket, and a ski ing cap, had a protruding nose, and carried a large stick with cloth tied around it. After some discussion among Ms. Neary, her roommate, and another house resident about whether to report the incident to the police, beating victim Karen Chandler came out of her room.
The other women could see that she had been injured so they summoned medical help and the police. The severity of the intruder's actions was soon discovered: Lisa Levy and Margaret Bowman had been killed; Karen Chandler and Kathy Kleiner had been severely beaten. The surviving victims were attacked in their sleep and could not describe their attacker.
Lisa Levy and Margaret Bowman were killed by strangulation after receiving severe beatings witha length of a tree branch used asa club. Margaret Bowman'sskull was crushed and literally laid open. The attacker also bit Lisa Levy with sufficient intensity to leave indentations which could clearly be identified as human bite marks. In the course of their investigation police technicians made numerous photographs of the bite on the victim's body.
One of the officers dispatched to the scene took a description of the intruder from Nita Neary. The officer testified at trial that Ms. Neary described the intruder asa young white male, cleanshaven, witha dark complexion, about five feet, eight inches tall, weighing about 160 pounds, wearing a dark toboggan capl a dark waist-length jacket, light-colored pants, and carrying a large stick.
While the police were taking statements and searching for evidence at the Chi Omega house, another attack was taking place only few blocks away. At about 4: OO a.m. on Sunday, January 15, 1978, two residents of a duplex apartment on Dunwoody Street near the Florida State University campus heard loud noises coming from the adjacent apartment of the duplex house. They telephoned their next-door neighbor, Cheryl Thomas, and received no answer, so they called the police. The police arrived, entered the apartment, and discovered the severely beaten Ms. Thomas lying in her bed. She had been attacked in her sleep and could not describe or identify her attacker. A knotted pair of pantyhose, which did not belong to Cheryl Thomas, was found in the room.
There were holes in the fabric the placement of which indicated that the pair of pantyhose might have been used asa mask.
At approximately 5: OOa.m. on Sunday, January 15, two men who knew appellant arrived at The Oak rooming house and proceeded inside to the room where one of the men lived. They saw Bundy standing in front of the house and looking off in the distance in the direction of the Florida State University campus and the scenes of the crimes. As they passed him both men casually greeted appellant but he did not respond. Several hours later, at about noon on Sunday, several residents of The Oak, Bundy among them, were discussing the news of the crimes. One witness testified that during this conversation he speculated that the perpetrator was "some lunatic" who was ''now probably hiding out real scared." Bundy disagreed, saying that the crimes were ''a professional job" and that the killer was someone who had committed such crimes before and had probably already departed the area.
On Sunday, January 15, Nita Neary met with investigators and again described the man she saw in the foyer of the sorority house. The police arranged for an artist to make sketches based on Ms. Neary's description and the sketches made at this time were admitted into evidence. One week later, Ms. Neary was placed under hypnosis and questioned concerning what she had seen. During the hypnosis session, Ms. Neary said she had seen brown hair hanging out of the back of the man's ski cap. This and a reference to the man's eyebrows were the only factual elements obtained through hypnosis that had not already been learned from Ms. Neary's previous descriptions. At trial she testified that after the hypnosis session she did not remember seeing the brown hair or eyebrows on the night of the crimes.
In April, 1978, an investigator from the Leon County Sheriff's Department went to Muncie, Indiana to conduct a photographic identification array procedure with Nita Neary. At this time, appellant was in custody. The detective had cautioned Ms. Neary to avoid looking at news media photographs as well as news reports to the effect that Bundy was a principal suspect.
Ms. Neary selected Bundy's photograph from the array. In her testimony at trial, Nita Neary described the man she had seen as being a white man in his twenties, about five feet, eight inches tall, weigning about 165 pounds, and having a prominent nose with a straight bridge that came almost to a point. He was cleanshaven, had thin lips, and was slightly dark in complexion.
She said she saw his face from the right side and that he wore a dark blue ski cap pulled down to his eyebrows and over his ear, a dark waist-length jacket, and light-colored pants. Finally, at trial Nita Neary pointed to Bundy as the man she saw in the sorority house.
At about 1:45 a.m. on February 11, 1978, a Tallahassee police officer saw Bundy standing beside a car on a street in the same campus neighborhood where both crime scenes and The Oak rooming house are located. The officer approached appellant and asked him what he was doing there. During their conversation the officer saw an unexpired automobile license plate inside the car and asked to see it. Bundy compiled and the officer walked to his police car tocallthetag number in by radio. AS he did so, Bundy ran away and theofficerwasunabletopursue him.
Bundy wasarrestedinPensacola on February15, 1978under the following circumstances. Atabout1:30 a. m. on February15, a Pensacola policeofficerstoppedthe car being operated by Bundy and attemptedtoarrest him. Although thereasonforthe arrest and the charge made were kept from thejuryattrial, it isapparent from therecordthat Bundy waschargedwith car theft when originally arrested, Astheofficer tried tohandcuff Bundy, hestrucktheofficer and fled. The officerfiredat Bundy, then pursued, overtook, and subdued him. On the way to the jail Bundy toldtheofficerthathewishedtheofficer had killed him and then asked, " IfI: runatthejail, will you shoot me then?"
A forensic hair and fiberanalysttestifiedthatshe removed several human head hairs from theknottedpantyhose found inCheryl Thomas' room and subjected them tomicroscopicexamination and comparison with sample hairs from the head of Bundy. The expertconcludedthatthe human hairs found on the pantyhose had the same characteristicsasBundy ' sand could have come from him.
Therewastestimony from aforensicdentalexpert who testifiedconcerninghisanalysisofthebite mark left on the body of Lisa Levy, hiscomparisonofthe mark with appellant ' s teeth, and his conclusions. Among thephotographsofthebite mark were enlargementstoactualsize. Pursuant toajudge ' s warrant, lawenforcementauthoritiesarranged for the dental experttotake wax impressions and photographsofappellant ' s teeth. From the wax impressions, actual models ofthetworows ofteeth were cast. The experttestifiedthat he wasableto lookattheparticularfeaturesoftheteeth and compare them to the indentations inthe victim ' flesh as revealed inthe photographs. The expertdescribedhistechnique and his analysis in detail. Hismaterials were exhibitedtothejury. He expressedtothejuryhisopinionthattheindentations on the victim's body were left by the teeth of Eundy. Another forensic dentist came to the same conclusion using computer-enhanced photographs of the bite marks. Like the first expert, the second expert explained the theory of his comparison. Both experts explained that because of the wide variation in the characteristics of human teeth, individuals are highly unique so that the technique of bite mark comparison can provide identification of a high degree of reliability.
The evidence was sufficient to support the convictions on all counts. We now proceed to consideration of Bundy's points on appeal.
ISSUES ON APPEAL OF THE CONVICTIONS
As his first point on appeal Eundy argues that the trial judge applied legally erroneous standards in ruling on defense motions to exclude the public and press from certain pretrial hearings, particularly the hearing on the admissibility of the bite-mark evidence and expert comparison testimony, with the result that the judge improperly refused to close the hearings and thereby violated Bundy's right to a fair trial. In considering the motions the trial judge held that there was a presumption in favor of open access to judicial proceedings and found that the defendant had failed to establish that closure was necessary. Bundy argues that the trial judge failed to accord sufficient importance to his right to be tried by a jury free from the improper prejudicial effects of pervasive pretrial publicity.
In ruling on the requests for closure of hearings, the trial judge used a three-step inquiry that had developed from cases of judicial prior restraint of dissemination of information about court proceedings. See Nebraska Press Association v.
1. A prior restraint on publication of information is, as the Supreme Court said in Nebraska Press Association v. Stuart, "one of the most extraordinary remedies known to our jurisprudence." 427U. S. at 562. In that case a state trial court ordered members of the press not to divulge matters they had learned at a preliminary hearing held in open court. The Supreme Court said that such prior restraint would only be permissible upon satisfaction of a strict three-step inquiry.
Without attempting to formulated precise tests for each element of the inquiry the Court found the trial court's order improper because it was not clearly supported by evidence of (1) the nature and extent of the damaging publicity, (2) whether alternative measures could be used to mitigate the harmful effects, and (3) whether the restraint would be effective to prevent prejudice. Under the circumstances the judicial remedy utilized was held unjustified when weighed against the constitutional right to freely pass on information to others.
19801, rev. denied, 399 So.2d 1145 (Fla. 1981); Sentinel Star Co.
Appellant, in arguing that prior restraint standards should not have been used, relies upon a decision of the United States Supreme Court that has been rendered since the time of the trial court's ruling on the motion for closure. In Gannett Co.
v. DePasquale, 443U. S. 368 (1979), the Court focused on the problem of public dissemination of information concerning pretrial hearings on suppression of evidence and its effect on potential jurors. Public access to and press dissemination of incriminating evidence that may be ruled inadmissible for trial purposes may have the effect of informing so many potential jurors of prejudicial material that a fair trial in the community is impossible. The Court in Gannett recognized closure of pretrial evidence-suppression hearings as an effective method of preserving the right to an impartial jury. Viewing the sixth amendment in its historical context, the Court concluded that the constitutional provision created no right in favor of the public or press to attend pretrial judicial proceedings. The public and press do have, the Court said, a nonconstitutional common law right to attend court proceedings, but this public interest is not of the same stature as the fundamental constitutional right of the accused to a fair trial and an impartial jury. AS for the rights of the public and press under the first amendment, the Court held that the trial court's action did not violate them since the withholding of information was only temporary.
This Court recently adopted a modified version of the three-pronged inquiry, which somewhat rel axes the test for the propriety of closure of pretrial proceedings and temporary sealing of records. In Miami Herald Publishing CO. v. Lewis, 426 So.2d 1 (Fla. 1982), we concluded that the nonconstitutional interests of the public and press in access to pretrial proceedings should not be elevated to a level of equal importance with the fundamental constitutional right of an accused to a fair trial by an impartial jury in the county where the crime was committed. Thus any balancing test must be applied with recognition of the fact that in such a clash of interests, the weightier considerations are with the accused defendant. We modified the three-pronged test, saying that one who seeks to close a pretrial proceeding or seal the record thereof ina criminal case must establish: (1) that closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) that no alternative measure is available, other than a change of venue, to protect the defendant's right to a fair trial; and (3) that closure would be effective in protecting the rights of the accused without being broader than necessary to accomplish this purpose. We find that even under the modified test, the trial court's refusal to close hearings does not appear an the record to have been an abuse of discretion.
Although Miami Herald Publishing Co. v. Lewis points out that a change of venue should not automatically be considered a proper alternative to closure where the accused has invoked his constitutional right under article I, section 16, Florida Constitution, to be tried in the county where the crime was committed, the court there recognized that a change of venue is one of a variety of remedies available when pretrial publicity has made the empaneling of an impartial jury difficult. It is important to note in the present case that when Bundy eventually moved fora change of venue on the ground that an impartial jury could not be selected in Leon County, the motion was granted.
Moreover, certain crucial pretrial hearings on suppression of evidence were held in Dade County after the jury had been selected and sequestered. In addition, individual voir dire of prospective jurors was utilized in the jury selection process.
Thus the trial court used a combination of alternative measures as remedies for the possible improper prejudicial effects of pretrial publicity. It was within the discretion of the trial judge to use these reasonable alternative remedies instead of barring public access to pretrial proceedings. The combination of remedies used was sufficient to guarantee Bundy's right to a fair trial before an impartial jury. We therefore find his argument to be without merit.
Asa separate point on appeal, Bundy also argues that because of the asserted erroneous failure or refusal of the trial court to protect his right to a fair trial by controlling the pretrial publicity, he was forced to request a change of venue and therefore was deprived of the right to be tried in the locality where the crimes charged were committed. This argument presents no basis for relief from the trial court judgment.
Bundy did not raise this issue in the court below; he never invoked his right to be tried in the county where the crimes were committed. The venue was changed in direct response to appellant's own request. By asking fora change of venue, Bundy waived his right to be tried in Leon County. See Ashley v.
that had the trial court in Leon County better controlled the publicity a change of venue would not have been necessary, but there is nothing in the record to show that the trial court's actions could have had more than only a marginal effect on the nature and extent of the publicity concerning the case. We believe the judge succeeded in controlling the impact of that publicity on the conduct of the trial. Because the defense asked for a change of venue and was given it, the ruling can be no basis fora reversal now.
Next appellant contends that the eyewitness identification testimony of Nita Neary should have been excluded from evidence because prior to trial she was hypnotized for the purpose of improving the quality and detail of her recollection of the man she saw leaving the sorority house. Bundy argues that such hypnotically aided testimony must be regarded with caution by courts because of certain scientifically recognized dangers of unreliability due to the suggestibility of persons under hypnosis. Be points out that the hypnosis session here was conducted without following a11 the safeguards that have been recognized by many courts as desirable to ensure the reliability of such testimony.
Nita Neary was placed under hypnosis on January 2 3, 1978, about one week after the incident. The hypnosis session was conducted by a police hypnotist and was attended by the sheriff of Leon County. The hypnotic examination was recorded but only on audio-tape. At a pretrial hearing on the motion to exclude Nita Neary's testimony the defense presented the testimony of a psychologist who was an expert in the field of hypnosis. The tape recording of the hypnosis session was played for the court and the defense expert pointed out numerous instances of suggestiveness on the part of the hypnotist. While Ms. Neary was in the hypnotic trance the hypnotist in effect persuaded her to ''see" and recall matters which she previously had said she had no knowledge of. The defense expert testified that it is possible fora hypnotized subject to simply create plausible "memories" in response to such subtle pressure from the hypnotist. Before being hypnotized Ms. Neary had said that the man's cap was pulled down completely over the hair and ears. Her description did not include reference to the eyebrows. The transcript reveals, however, that while under hypnosis Ms. Neary, after some prodding by the hypnotist, said that she could remember seeing hair hanging out of the back of the cap and that the hair was brown.
She also said that the eyebrows were brown. After elicit ing these responses, the hypnotist told Ms. Neary that she would retain her newly discovered memories of these details. This was identified by the defense expert as an improper and dangerous suggestion. At the same hearing, however, Nita Neary testified that although the hypnosis session made her memory seem clear at the time, it did not ultimately add to or change the way she recalled the events of January 15, 1978.
The trial court concluded that any suggestiveness that was injected into the hypnosis session had no impact on the prosecution of Bundy since he was not a suspect at the time of the hypnosis session. The record of the hypnotic interview seems to show that the police hypnotist was trying to elicit a description of a man who at that time--one week after the crimes--was considered a suspect in the case. This other man was a student who worked asa server and maintenance man at the sorority house. During the hypnosis session it was revealed that upon seeing the intruder Ms. Neary initially thought of this other man since he was the only man permitted on the upper floor of the sorority house. The trial court also found that the hypnosis session, although it brought out certain details which may have been the product of suggestiveness, did not materially change Ms. Neary's description of the man she saw. The court found further that her description after the hypnosis session was consistent with her descriptions given before and that her description and identification testimony were based on her independent recollection of the event untainted by any impropriety inherent in the hypnosis session.
The use of hypnosis in connection with the presentation of eyewitness testimony in court has been the subject of much judicial discussion in recent years, The recent judicial treatment of the subject reveals a growing recognition that hypnosis is not widely accepted by psychiatrists and psychologists asa consistently reliable method of refreshing or enhancing a person's memory of past perceptions and experiences.
Where the fact of hypnosis is relied upon by a party to explain how an enhanced recollection of past events was obtained or to bolster the credibility of a witness through reference to hypnotic memory enhancement asa scientific technique, many courts have held that the admissibility of the evidence must be tested under Try@ v. United States, 293F. 1013 (D.C. Cir. 1923).
Frye is widely used by courts to determine the admissibility of evidence derived from new scientific tests and techniques and holds that such tests must have achieved general acceptance by scientists in the relevant field before their results may be admitted into evidence.
Some jurisdictions in recent years have held that the testimony of witnesses previously hypnotized and examined under hypnosis concerning the events about which they are to testify is inadmissible - per-s e, either on the ground that the technique of hypnotic memory enhancement has not been established as reliable under Frye or because the scientifically recognized dangers of unreliability of such testimony outweigh its probative value asa matter of law, or fora combination of such reasons. See, e.g., People. Shirley, 31 Cal. 3d 18, 641P.2d 775, 181 Cal. Rptr.
243, cert. denied, 459U.S. 860 (1982); People. Gonzales, 415 (Minn. 1980).
The courts of other jurisdictions have held that hypnotically aided testimony is admissible, but only if certain strict safeguards in hypnotic procedure, calculated to minimize the recognized dangers of unreliability, are followed. - See, e.g., People. Smrekar, 6 8 Ill. App.3d 379, 385 N.E.2d 848 (1979); Collins v. State, 52 Md. App. 186, 447A.2d 1272 (1982);
Polk v. State, 4 8 Md. App. 382, 427A.2d 1041 (1981); State.
Still other courts have held that hypnotically refreshed testimony is generally admissible and that the recognized problems inherent in its use relate to the weight and not the admissibility of such evidence. Declining to man date specific safeguards as prerequisites of admissibility, such courts have advised that careful procedures should be used but have held that the procedures used also go to the credibility rather than the admissibility of the testimony. - e.g., Pearson v. State, 441 See, - N.E.2d 468 (Ind. 1982); Organ v. State, 445 N.E.2d 585 (Ind.
App. (1983); State. McQueen, 295 N. C. 96, 244 S.E.2d 414 (1978);
Chapman v. State, 638 P.2d 1280 (Wyo. 1982).
In People. Shirley, the California Supreme Court provided a detailed analysis of the use of hypnosis as evidence and the various factual circumstances in which the issue arises.
The court held that the Frye rule is applicable to hypnotically refreshed testimony and that the proponent of such testimony has the burden of establishing that the Frye test has been met. The court found that hypnosis had not been recognized by experts in the field asa reliable technique for improving memory. Since the technique has not achieved general acceptance for such purposes among scientists in the field the court held the testimony of previously hypnotized witnesses inadmissible.
Implicit in the decision, however, was concern for the danger of injecting erroneous information into the subject's testimony and reinforcing it against cross examination. So the court held that a previously hypnotized witness should be considered forever tainted asa witness to the events that were the subject of the hypnotic interview.
Under the circumstances of the present case, we are not called upon to decide whether the enhancement of a subject's memory by hypnosis is a species of evidence that must meet the Frye test of general scientific acceptance in order to be admissible. (In Brown, the district court of appeal pointed out that Frye has never authoritatively been adopted by the courts of Florida as the test for the admissibility of scientific evidence generally.) Nor is it necessary for us to decide whether the admissibility of hypnotically refreshed recall testimony should be governed by the "relevancy approach" of Brown v. State, nor whether the failure to follow the safeguards that have been prominently discussed in many recent cases from around the nation renders such testimony inadmissible. It is not necessary for us to decide these questions because this is simply not a case of hypnotically refreshed recall testimony, properly understood.
As the pretrial and trial testimony showed, Nita Neary was hypnotized at a very early stage in the investigation, about one week after the crimes, before Bundy's arrest, and before he came to be considered a suspect. She was hypnotized because some of those involved in the investigation believed that the visual image she remembered from seeing the intruder could be re-created and enhanced if she were placed ina hypnotic trance. Thus they hoped to gain more information about and a better description of that persons o they could proceed with their investigation.
According to the scholarly works discussed in People. Shirley, Brown v. State, and many other recent opinions of various courts, the great weight of scientific opinion appears to be that such a belief--that a subject can be made to re-experience a visual perception under hypnosis--is to be considered highly suspect if not clearly erroneous. Nita Neary testified that while she was under hypnosis her memory seemed clear and her concentration seemed focused. The tape of the hypnotic session showed the suggestions she was given by the police hypnotist who was apparently trying to elicit a statement implicating the sorority house maintenance man. But as Ms. Neary testified and as the trial court found, the hypnotic session did not add to or change her essential description of the man she saw. From the time of her initial Statements on the morning of the crimes, through all her interviews by police, through all her pre-trial statements, up to and including her in-court description of the man she saw, Ms. Neary's description remained substantially consistent. The scientific literature indicates that suggestions from the hypnotist or creation of the subject in response to pressure from the hypnotist may be so firmly incorporated into the subject's memory that it is impossible to trace them to their origins and impossible to undermine them by cross examination.
This is one of the problems leading many courts to declared hypnotically aided testimony inadmissible - perse. However, this obviously did not happen here. The tape of the hypnotic session showed that Ms. Neary tried to resist the pressures of the hypnotist and when he persisted, she expressed confusion, which he then "commanded" her not to feel. Ultimately Ms. Neary repudiated any independent personal knowledge of the details elicited during the hypnotic trance. The trial judge was satisfied that her trial testimony was based on her own recollection unaffected by the hypnotic experiment.
This is not a case where the state relied at trial on the technique of hypnosis to show how an improved recall of past events was obtained. It is not a case where the state sought to present an expert to state an opinion as to the accuracy or reliability of testimony derived from hypnotic examination. It is not a case where the state sought to refer to the technique of hypnosis to bolster the credibility of a previously hypnotized witness. The matter of the hypnosis was only raised by the defendant's motion to suppress Nita Neary's testimony. The state elicited testimony from her at trial about the hypnosis only in anticipation of the defense attack on her credibility. It is for these reasons that we do not believe the question of the reliability of hypnotically refreshed testimony or the test by which its admissibility should be judged is even presented.
Under these Circumstances, we do not hesitate to hold that the fact that the hypnosis took place was a matter relating only to the weight of the testimony and not to its admissibility.
Furthermore, under these circumstances the burden was on the defense to establish that the hypnosis rendered the testimony so unreliable as to be inadmissible and this it failed to do. See United States. Awkard, 597 F.2d 667 (9th Cir.)(mere fact of hypnosis affects credibility of testimony but not admissibility), cert. denied, 444 U. S. 885 (1979); State ex rel. Collins v.
hypnotized witness not disqualified from testifying to matters he was able to recall and relate prior to hypnosis); People.
Lucas, 107 Misc.2d 231, 435N.Y.S.2d 461 (Sup. Ct. 1980)(even where safeguards lacking, witness could testify because hypnosis had little impact and pre- and post-hypnosis statements were substantially similar).
As was stated above, prior to trial the defense presented an expert to testify about the problems inherent in hypnosis as an aid to recollection and to point out the actual instances of suggestiveness and pressure revealed by the tape of the hypnosis session. At the trial proper the defense declined to use its expert, choosing instead to simply play the tape of the hypnosis session for the jury. Thus the circumstances of the hypnosis and the procedure used were fully disclosed to the jury and the defense had every opportunity to attack the credibility of Nita Neary based on the fact that she had been hypnotized.
The trial judge was satisfied that Nita Neary's testimony was based upon her independent recollection untainted by any improper suggestions the hypnotist's prodding may have tended to plant. Reviewing the trial judge's determination in light of the massive pretrial and trial record pertaining to this issue, we find that the trial judge did not abuse his discretion by so ruling. We therefore find appellant's contention to be without merit.
Appellant also questions the admissibility of Nita Neary's identification testimony on another ground. He argues that his right to due process of law was violated because before trial an impermissibly suggestive photographic selection procedure was used which affected Ms. Neary's testimony to appellant's prejudice. Such a contention calls for the application of a two-pronged test inquiring into (1) whether the police used an impermissibly suggestive procedure in obtaining the identification and (2) if so, whether that suggestive procedure gave rise to a substantial likelihood of an irreparable mistaken neither requirement is satisfied.
Specifically, Bundy claims that the police used an impermissibly suggestive procedure in having Ms. Neary choose his picture from an array of photographs. He argues that the procedure used resulted ina substantial likelihood of misidentification because of a suggestive comment made by the officer while showing the array of photographs and because she may have been influenced by seeing pictures of Bundy ina newspaper prior to choosing his photograph from the array. The suggestive comment complained about was the police officer's asking her to select the photograph of the person that resembled the suspect. This remark implyinq that the suspect's picture was included in the array of ten photographs did not render the procedure impermissibly suggestive. State. Colby, 361 A.2d 256 - other qrounds, Davis, 25 N.C. App. 256, 212 S.E.2d 680 (1975); Drewry v.
Commonwealth, 213 Va. la6, 191 S.E.2d 178 (1972); Fells v. State, See also Annot., 39A.L.R.3d 1000 (1971 & Supp. 1982).
We also find that Ms. Neary's having seen pictures of Bundy in the newspaper did not render the identification procedure impermissibly suggestive. Some courts have held that the holding in Simmons, that a photographic identification will not be admissible where the procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification, does not apply to situations where a witness had earlier observed a picture of the defendant in the news media. United States. Peele, 574 F.2d 489 (9th Cir.
(1978); United States. Zeiler, 470 F.2d 717 (3d Cir. (1972);
Stroud v. State, 246 Ga. 717, 273 S.E.2d 155 (1980); Norris v.
P.2d 1363 (Okla. Crim. App. 1980) Others have found that there was not a substantial likelihood of misidentification where, as in this case, the witness asserted that seeing the suspect's picture in the news media did not influence his or her identification. United State. Grose, 525 F.2d 1115 (7th Cir.
Boston, 508 F.2d 1171 (2d Cir. 1974), cert. denied, 421 U.S. LOO1 (Ala. Crim. App. 1982). Here Ms. Neary said that the newspaper photographs had no effect on her because they were not profiles.
Her view of the intruder was a profile, she said, and so was the picture she selected from the photographic line-up. Because Bundy failed to show that the police used an impermissibly suggestive procedure in obtaining an identification, we find that Ms. Neary's identification testimony was properly admitted.
Grant v. State, 390 So.2d 341 (Fla. 1980), cert. denied, 451 U.S.
Furthermore, we agree with the trial court's finding that the procedures used in this case did not give rise to a substantial likelihood of misidentification. Analyzing the factors laid out in the United States Supreme Court's decision in Manson. Brathwaite, the trial court specifically found:
The opportunity to view: the witness saw the assailant but a short time, but enough time to describe prominent, straight bridge protruding nose;
dark complexion; slight built; around five eight, five foot ten; weight approximately one hundred sixty-five pounds; white male; dark jacket right below the belt; the light colored pants; wearing a stocking cap down over the eyebrows; clean shaven with no facial hair; looked in the mid-twenties. And the Court finds there was sufficient light to view.
The degree of attention: The witness in the Court's opinion was not a casual observer. She was an art student attending college and there was no surprise at the time of the view. She thought, in fact, it was a boyfriend staying over or the houseboy. She described immediately the description to a roommate and there's been no differentiation from that description since its first utterance.
Item three, the accuracy of the description:
All items in the description set forth above were given and there's been no claim made before this Court that the defendant does not possess all of these physical characteristics. The defendant is slightly taller and somewhat older, but none of the pre dominate descriptions shown have been shown to this Court not to be descriptive.
The witness' level of certainty: No deviation by the witness since the first utterance of her description. She survived and stated these stories--this particular description to what the Court would describe as an army of police officers and hypnosis. It has always been the same. The only varying factor under hypnosis was the hair testimony that's before the Court. That was not present at the original description, but, of course, with the covered stocking cap. The hair testimony was no aid in the identification of the defendant.
The time before confrontation: The witness was shown a picture line-up on April the 7th after the defendant's arrest on February the 18th. The Court finds this not too remote fora witness ina remote jurisdiction. The description was given within minutes. The identification three months later was based on the same description and there was no material variance, These findings support the trial court's conclusion that under the totality of the circumstances there was no substantial likelihood of irreparable misidentification.
Next Bundy argues that the trial court erred in denying his motion to sever counts six and seven, which pertained to the crimes that occurred at the duplex apartment on Dunwoody Street, from the remaining counts. He argues that these two counts were improperly joined with counts one through five which pertained to the crimes occurring at the Chi Omega sorority house and that such joinder seriously impaired his right to a fair determination of guilt or innocence. We do not find the joinder of all seven counts to have been either improper or prejudicial.
Two or more offenses are properly joined if they are based "on two or more connected acts or transactions." Fla. R. Crim.
P. 3.150(a). In determining whether two acts or transactions are connected for purposes of consolidation, this Court has considered the temporal and geographical association, the nature of the crimes, and the manner in which they were committed. - See Ashley v. State, 265 So.2d 685 (Fla. 1972); Hall v. State, 66 the crimes occurred within a few blocks of each other and within the space of a couple of hours. The crimes were similar in that they involved person entering the residences of female students in an off-campus neighborhood and beating young white women with a club as they slept. Hence the criminal acts are connected by the close proximity in time and location, by their nature, and by the manner in which they were perpetrated.
Even though two or more related offenses are properly joined, a severance should be granted upon a showing that it is necessary to promote or achieve "a fair determination of the defendant's guilt or innocence." Fla. R. Crim. P. 3.152(a).
Bundy claims that he was prejudiced by the joinder because it allowed the state to introduce evidence of separate criminal offenses which otherwise would not have been admissible if a severance had been granted. We do not agree with this assumption. Even if there had been separate trials, evidence of the crimes occurring at either location would have been admissible at the trial concerning the crimes at the other location since such evidence was relevant to showing a common scheme and identity. See Williams v. State, 110 So.2d 654 evidence would have been admissible at either trial, Bundy has failed to demonstrate that a severance was necessary fora fair determination of his guilt or innocence. We therefore find that the trial court did not abuse its discretion in denying the motion to sever the two groups of charges.
Bundy's next point on appeal is that the trial court erred in excusing two veniremen for cause. Appellant argues that they voiced only general objections to the death penalty and therefore their dismissal violated principles announced in Witherspoon v.
Illinois, 391 U. S. 510 (1968). A close examination of the voir dire, however, reveals that the two veniremen had more than general philosophical objections to the death penalty. When questioned by the trial judge, both stated that they would not be able to return a verdict of guilty of first-degree murder knowing that a conviction of such an offense could possibly lead to the imposition of a sentence of death. Because they acknowledged that they could not be neutral in reaching a verdict, Bundy was not denied due process of law by their excusal for cause.
The next point on appeal pertains to the denial of several pretrial motions concerning the grand jury. In February 1978, after Bundy had been arrested on some unrelated charges, a public defenders office was appointed to represent him. Between July 18 and 21, 1978, the assistant public defender assigned to represent Bundy filed motions (1) seeking information about grand jury proceedings and to record and transcribe the grand jury proceedings; (2) for orders restraining grand juries from returning indictments against Bundy; (3) seeking voir dire examination of the grand jurors; and (4) challenging the legality of the grand jury. In response the state filed a motion to quash the motions, arguing that the assistant public defender who had filed them had no authority to file the motions since they were beyond the scope of his appointment and that the motions were untimely filed since the grand jury had been impaneled on June 5.
On July 21, Bundy requested appointment of a public defender to handle his grand jury motions. At a hearing held on July 21, Judge John Rudd, who initially presided over the case, denied Bundy's request for the public defender and denied the motions.
Three days later Judge Rudd reversed himself on Bundy's request and appointed the public defender to represent Bundy in all matters pending before the grand jury. A hearing was held on July 2 4 at which the assistant public defender was allowed to argue the merits of the four motions filed between July 18 and
21. The next day Judge Rudd denied the motions and ina written order filed August 1 explained his reasons. In that order he found that Bundy, by virtue of having been served witha search warrant on April 27, knew or had reason to believe that at the time the grand jury was impaneled he would be involved in its investigation. The judge concluded that the motions were untimely filed under section 905.05, Florida Statutes (1977).
Bundy later moved to quash the indictment on the grounds that he was not provided a fair hearing on these motions. A hearing an this motion was held before Judge Edward D. Cowart, who presided at trial, on May 16, 1979. At the hearing the assistant public defender who filed the earlier motions acknowledged that he had knowledge of Bundy's having been served witha search warrant and of the extensive publicity prior to the convening of the grand jury. At this hearing defense counsel announced they were abandoning all. the challenges to the grand jury except the principal one which was that the grand jury was prejudiced by the extensive publicity. The trial court denied the motion to quash.
In this appeal Bundy claims that the motions filed in July of 1978 challenging or object ing to the grand jury on the ground of extensive pretrial publicity were timely since he had not actually been served with notice that the grand jury would be considering offenses which he was suspected of committing. As an alternative argument he claims that if service of a search warrant constitutes notice, he should at that time have been appointed counsel for the purpose of filing and preserving his objections to the grand jury. He argues that it was a violation of his right to due process to appoint counsel after the deadline for filing objections to the grand jury had passed. See Reece.
In Reece the defendant challenged his conviction on the ground that the grand jury was unconstitutionally selected. He had initially raised the issue by filing a motion to quash the indictment seven days after he was indicted. The Georgia Supreme Court refused to grant relief because of a rule of practice which required objections to the competency of grand jurors to be made prior to the returning of an indictment. The United States Supreme Court reversed, concluding that inasmuch as the defendant was a semi-literate person of low mental ability who was without benefit of counsel and the order by which the grand jury reconvened did not list him asa person against whom a case would be presented, the defendant had not had an opportunity to raise his objections.
This case is distinguishable because Bundy had an adequate opportunity to raise his objections ina timely manner. He had been receiving the benefit of court-appointed counsel since February and both he and the lawyer knew that Bundy was being investigated for the crimes for which he was later indicted.
Both he and his attorneys had actual knowledge of the pre-indictment publicity, which was asserted as the basis for seeking a temporary restraining order and for requesting voir dire, before the grand jury was impaneled. We therefore hold there was no error in denying the motions since they were untimely filed.
Furthermore, we find Bundy would not have been entitled to any relief even if the motions had been timely filed. The motions fora temporary restraining order and for voir dire alleged that the grand jury could not act impartially because of the extensive publicity surrounding the crimes and Bundy's arrest. However, the courts have held that the mere existence of pre-indictment publicity is insufficient to show that grand jurors might be prejudiced or biased. United States. Civella, Khaalis v. United States, 408 A.2d 313 (D.C. App. 1979), cert.
denied, 444U. S. 1092 (1980). To justify the individual examination of grand jurors the pre-indictment publicity must be so insidious as to cause vindictive and retributive feelings among the members of the community. State. Baberski, 449 A.2d find Bundy was entitled to neither a temporary restraining order nor an opportunity to voir dire the individual members of the grand jury. See Porter v. State, 400 So.2d 5 (Fla. 1981).
Appellant contends that the court improperly commented on his exercise of his right to remain silent. Bundy finds this improper reference in the very jury instruction designed to prevent any unfavorable jury inference from the fact that an Jury Instruction for Criminal Cases 2.13(h) the judge instructed the jury as follows:
In every criminal proceeding a defendant has the absolute right to remain silent. At no time is it the duty of a defendant to prove his innocence. From the exercise of a defendant's right to remain silent, a jury is not permitted to draw any inference of guilt, and a defendant's failure to take the witness stand must not be considered in any manner an admission of guilt, nor should his failure to take the witness stand influence your verdict in any manner whatsoever.
At trial the defense requested an alternate version of the approved standard the defense reiterated its request for an instruction of some kind on this matter. The judge offered to vomit the instruction but the defense wanted it.
Bundy claims that the word "failure" contained in the instruction has an unfavorable connotation and has the effect of an improper negative comment on a defendant's exercise of the right not to testify. We do not find that the use of this term creates an adverse inference that would pressure a defendant into testifying. See Lakeside v, Oregon, 435 U. S. 333 (1978). Hence there was no error in giving this instruction.
Bundy's next point on appeal is the denial of his motion to permit an out-of-state attorney to represent him - pro - - hac vice.
Bundy argues that the denial of the motion deprived him of his sixth amendment right to counsel. Both sides agree that a defendant does not have an absolute right to a particular lawyer and that it is within a trial court's discretion to deny a defendant's request for particular counsel when there is a "countervailing public interest in the fair and orderly administration of justice." United States. Salinas, 618 F.2d 1092, 1093 (5th Cir.), cert. denied, 449 U. S. 961 (1980). The state argues that the trial judge did not abuse his discretion in denying the motion because of the out-of-state attorney's prior misconduct which disrupted the orderly administration of justice.
See United _I States. Dinitz, 538 F.2d 1214 (5th Cir. 1976), cert.
Cir.), cert. denied, 423U. S. 892 (1975). Bundy argues that these cases are distinguishable because the misconduct relied upon by the courts in refusing to permit the attorneys to appear occurred in their presence. Bundy points out that the misconduct complained about in this case occurred in another state, see I_ Farmer v. Holton, 146 Ga. App. 102, 245S.E.2d 457 (1978), cert.
denied, 440U. S. 958 (1979), and that no disciplinary proceedings were ever brought against the attorney. We do not agree that this makes a difference; the courts of this state are not bound by the lack of disciplinary action in other states in determining whether an attorney should be admitted to the bar pro hac -- vice.
See 558F.2d 8 7 (2d Cir. 1977). We concur with the finding of the United States Court of Appeals for the Fifth Circuit that the denial of admission to appear pro -- hac - vice in this case was based upon a reasonably clear standard, see Bundy
v. Rudd, 581 F.2d 1126 (5th Cir. 1978), cert. denied, 441 U.S.
905 (1979), so there was no abuse of discretion. Since the denial of the motion was not an abuse of discretion, Bundy was not deprived of his sixth amendment right to counsel.
Bundy also challenges the trial court's ruling that permitted the state to present the testimony of dental experts who analyzed the bite inflicted on murder victim Lisa Levy and compared it to the models of appellant's teeth. Before trial the defense moved to exclude such evidence on the ground that the comparison techniques were not reliable. Dental experts for the state and the defense testified at the motion hearing. After the judge ruled, the defense moved to strike the hearing testimony of one of the state's experts on the ground of prejudice and asa sanction for the expert's violation of an earlier court order restricting public disclosure of matters pertaining to the bite mark evidence.
The trial court found that the science of odontology, which is based on the discovery that the characteristics of individual human dentition are highly unique, is generally recognized by scientists in the relevant fields and therefore is an acceptable foundation for the admissibility of expert opinions into evidence. The court in effect ruled that since the profferred evidence met this criterion the details of the comparison techniques were matters of credibility and weight of the evidence for the jury to determine. The judge also found that the state expert's appearance at a forensic science conference and his mention there of his work on this case was not a willful violation of the earlier court order and did not render him prejudiced.
Appellant contends that the bite mark comparison evidence and expert testimony should not have been admitted into evidence because it was not shown that the comparison techniques were reliable and that accepted standards of comparison were used. He also argues that the state's chief expert was prejudiced and gave an improper opinion on the ultimate issue of guilt or innocence.
The evidence in question is based on the examination of impressions made by human teeth and their comparison with models of known human teeth for the purpose of determining whether the impressions were or probably were or could have been made by a particular individual. Bite mark comparison evidence differ from many other kinds of scientific evidence such as blood tests, "breathalyzer" tests, and radar (as well as from inadmissible techniques such as the polygraph and voice-print analyses) in that these various techniques involve total reliance on scientific interpretation to establish a question of fact. With bite marks evidence, on the other hand, the jury is able to see the comparison for itself by looking directly at the physical evidence in the form of photographs and models. People. Slone, 76 Cal. App. 3d 611, 143 Cal. Rptr. 61 (Cal. Ct. App. 1978);
People. Marx, 54 Cal. App. 3d 100, 126 Cal. Rptr. 350 (Cal. Ct.
App. (1975).
As the trial court found, the basis for the comparison testimony--that the science of odontology makes such comparison possible due to the significant uniqueness of individual dental characteristics--has been adequately established. Appellant does not contest this sup position. Forensic odontological identification techniques are merely an application of this established science to a particular problem. People. Marx.
The technique is similar to hair comparison evidence, which is admissible even though it does not result in identifications of absolute certainty as fingerprints do. Jent v. State, 408 So.2d (1981). Its probative value to the case is for the trier of fact to determine.
The trial court also found that the comparison techniques actually used in this case were reliable enough to allow the experts to present their materials and their conclusions to the jury. Bundy has presented no basis for finding that the trial judge abused his discretion in doing so. The court's ruling on defendant's claim that the state's chief expert was prejudiced was also within the judge's discretion. Moreover, we find that it was proper for the expert to offer his opinion on the issue of a bite-mark match; this was not an improper legal conclusion.
All facets of appellant's argument on the bite mark evidence are without merit.
At the close of the trial Bundy filed a motion fora new trial on the ground that he had received ineffective assistance of trial counsel. The court denied the motion without holding an evidentiary hearing because the request fora hearing was based on events which the court had seen and heard itself. Since Bundy failed to prove the existence of any act or omission of counsel that was below the standard of reasonably competent counsel, the court properly denied the motion. Knight v. State, 394 So.2d 997 (Fla. 1981).
We have considered each of appellant's contention regarding the judgments of conviction and have found them to, be without merit. We now proceed to consider the matter of the sentences of death.
SENTENCE
Finally we come to the sentencing phase of the trial. The state relied upon the evidence presented at trial and a stipulation that Bundy was under sentence of imprisonment for aggravated kidnapping in the state of Utah to establish the existence of various aggravating circumstances. The defense presented several witnesses who testified that Bundy could be rehabilitated and live a useful life. As aggravating circumstances the trial court found that Bundy was under sentence of imprisonment, section 921.141(5)(a), Florida Statutes (1977);
that he had been previously convicted of a felony involving the use or threat of violence to a person, section 921.141(5)(b);
that the capital felonies were committed during a burglary, section 921.141(5)(d); and that the capital felonies were especially heinous, atrocious, and cruel, section 921.141(5) (h).
Concluding that there were no mitigating circumstances, the trial court imposed two separate death sentences in accordance with the jury's recommendations.
Bundy claims that the trial court erred by considering his being under sentence of imprisonment and his prior conviction of a felony as separate aggravating circumstances. He argues that the two statutory factors were improperly doubled up under the rationale of Provence v. State, 337 So.2d 783 (Fla. 1976), cert.
denied, 431U. S. 969 (1977). This identical issue was raised in Waterhouse v. State, 429 So.2d 301 (Fla.), cert. denied, 104 S.Ct. 415 (1983), where we stated:
The principle of Provence, however, is not applicable here. In Provence we reasoned that proof that a capital felony was committed during the course of a robbery necessarily was based on the same aspect of the crime that provided the basis for finding the motive of pecuniary gain. The same reasoning does not apply to the two aggravating circumstances in question here. The previous conviction and the parole status were two separate and distinct characteristics of the defendant, not based on the same evidence and the same essential facts.
Therefore separate findings of the two factors were proper.
Id. at 307, We therefore find no error.
Next Bundy claims that the trial court erred in finding that the capital felonies were especially heinous, atrocious, and cruel. There is no merit to this argument. The victims were murdered while sleeping in their own beds. - See Breedlove v.
Finally Bundy argues there was insufficient proof of nonconsensual entry to uphold the finding that a burglary had been committed. The state points out, however, that the murders were committed on the second floor of a sorority house where no men were allowed. Moreover it is inconceivable that Bundy could have been or thought he was invited to be in the house at three o'clock in the morning. We agree with the state's position that there was ample circumstantial evidence to support the finding that Bundy's entrance into the building was nonconsensual. In any event, lack of consent to entry is not an essential element of a charge of burglary; rather, consent to entry is an affirmative defense. State. Hicks, 421 So.2d 510 (Fla. 1982).
Having reviewed the entire sentencing order, we find no errors. The sentencing court's analysis of the nature of the crimes and the character of the offender correctly concludes that sentences of death are appropriate under our law.
The judgments of conviction and sentences of death are affirmed.
It is so ordered.
ALDERMAN, C. J., ADKTNS, OVERTON, McDONALD and EHRLICH, JJ., Concur MCDONALD, J., Concurs specially with an opinion in which OVERTON, J., Concurs NOT FINAL UNTIL TIME EXPIRES TO FILE bearing MOTION AND, IF
FILED, DETERMINED.
McDONALD, J., concurring.
I concur with the opinion with the understanding that it does not hold that hypnosis affects only the weight and not the admissibility of testimony. Post-hypnotic testimony can be influenced by a suggestive hypnosis session to the extent that false memories are created and believed by the witness. While hypnosis is a useful investigative technique, it can be dangerous if improperly used. This danger need not render post-hypnotic testimony inadmissible - perse, as some jurisdictions have held.
I would adopt the test of admissibility set out by the Supreme seeking to offer post-hypnotic testimony would so inform the other party. If the opposing party moves to suppress, the trial court would determine admissibility at a pretrial hearing, where the proponent would have the burden of demonstrating that the hypnotic session was not impermissibly suggestive. If then admitted, the fact that hypnosis took place becomes a matter for the jury to consider in determining the credibility of that testimony.
In this case the trial judge was able.to determine that the witness who had been hypnotized did not change her description of the assailant in any material way after hypnosis.
The hypnotic session took place before Bundy was a suspect in this case and no suggestion, directly or indirectly, was given the witness that could have affected her testimony. Therefore, the post-hypnotic testimony was reliable and admissible under the standard I have proposed.
OVERTON, J., Concurs AN Appeal from theCircuitCourtin and for Leon County, Case No. 7 8 - 670 Venue intheEleventhJudicial Circuit, in and for Dade County,
Edward D. Cowart, Judge - CaseNo. 79-10154 Robert Augustus Harper, Jr., Tallahassee, Florida, for Appellant JimSmith, AttorneyGeneral and David P. Gauldin, Assistant Attorney General, Tallahassee, Florida, for Appellee