Kimberly Diane Leach was twelve. She was taken from the grounds of her junior high school in Lake City, Florida on February 9, 1978, and found two months later in a hog shed off a dirt road near the Suwannee River. Bundy was tried for her murder in Orlando, on a change of venue out of Columbia County, and it was this conviction, not the Chi Omega one, that he was executed under in January 1989.
Docket 59128 is the appeal from it: the defense brief, the State's answer, the defense reply, the opinion. 212 pages. The two Bundy appeals were separate cases on separate convictions and they are separate documents here, which is the distinction most retellings lose.
The defense took 103 pages; the State answered in 44. The arguments run through competency, the venue change and the jury it produced, the fiber evidence linking Bundy to the white van, and whether a death sentence could stand on the record as made. The court affirmed.
This is the conviction Florida executed him for. That is the reason to keep it separate from the Chi Omega appeal, which is a different docket on different convictions and sits on its own page here: the two cases were tried in different cities, appealed separately, and decided separately, and collapsing them into one story is the commonest error made about this record.
A brief is not a narrative and it is not trying to be fair. It cites the parts of the trial record that help its side, characterizes the parts it cannot avoid, and passes over the rest in silence, which means reading only the defense filing here would give you a badly distorted picture of the trial and reading only the State's would give you the opposite one. Bundy himself is silent throughout. For his own voice you want the trial transcript, which the trial court holds and which is in no brief collection.
Public record, and the practical point is what to ask for if you need better than our copy. These are docket 59128 in the Supreme Court of Florida, and the clerk there can certify them; the trial papers behind them sit with the circuit court that tried the case, which moved from Columbia County to Orlando on the venue change. The scan is the FSU law library's and adds nothing anyone owns.
What this scan does that the Chi Omega one does not is run words together: 416 pairs arrived welded into single tokens, which is a harder fault to see than a missing letter because the result often looks like a word. Those were split, 352 misreadings repaired on the one-candidate rule, and the print-column breaks closed. Some runs of characters are simply absent from the scan and no amount of work recovers them. Capitals were left alone throughout, and the citation tables are not reproduced.
IN THE SUPREME COURT OF FLORIDA
OEC IS
THEODORE ROBERT BUNDY,
Appe I Iant, vs. Appeal No. 59,128 Capital Case Appeal Ninth Judicial Circuit of Florida
STATE OF FLORIDA,
Appellee.
APPELLANT'SMAIN BRIEF./
J. VICTOR AFRICAN0
Attorney for Appellant P, 0.Box 1450 Live Oak, Florida 32060
(904) 362-6930
TABLE OF CONTENTS
TABLE OF CITATIONS iv
STATEMENT OF THE FACTS
A. The Disappearance
B. The Search
C. The Arrest
D. The Investigation
E. Pretrial Motions
3. Change of Venue orin the Alternative,
F. Trial
1. Motionfor Change of Venue orinthe
G. Post Trial
ARGUMENT
I. The Trial Court Erred in Denying the Defendant's Several Motions to Suppress the Testimony of certain witnesses whose recall had been affected or altered by hypnosis
A. The pretrial identification procedures utilized by the state on the witness, C. L. Anderson, in his identification of the Leach girl, Bundy and the alleged "abduct ion" we re ine rent Iy suggestive
B. Anderson's testimony should have been suppressed on the basis that hypnosis contaminated his testimony and made
11. The Trial Court Erred in Denying the Motion to Limit Death Qualification of Jury; allowing such qualifications; and excusing for cause those jurors opposed to the death penalty, notwithstanding their abilityto vote for guilt or innocence
A. The Witherspoon 8rule must be considered in light ofcritical differences in sentenc-
B. Florida has no significant interest in excluding from capital juries venire persons who would not vote for the
C. Florida is the exception to national
D. Defendant was denied a representative cross-section of the community on his I It. The Trial Court Erred in Denying Defendant's Motion for Change of Venue or Abatement of IV. The Court Erred in Not Conducting a Frye Test on its own motion when confronted with the
V. The Trial Court Erred in Denying Defendant's VY, The Trial Court Erred in Denying Defendant's Motion in Limine to Exclude Evidence of Flight and the subsequent Jury instruction an Flight based upon that evidence MI. The Trial Court Erred in Sentencing the Defendant to Death
A. The Trial Court did not establish that the crime was especially heinous, atrocious, cruel a4
B. The Trial Court erred in finding that Death occurred asa result of homicidal injury
C. The first two findings of aggravating cir - cumstances in the trialcourt ' s sentence involved the same convicted act and this constituted an impermissible doubling of
D. The Trial Court Erred in Admitting the Testimony of Michael James Fisher to prove an aggravating factor in the penalty
E. The Trial Court Erred in Denying the Defendant's Motion to Enter Life Sentence on verdict and to prohibit penalty phase Ill a TABLE OF CITATIONS Alford v. State, 307 So2d 433 (Fla. 1975) Cert. Den. 96 S.Ct. 3227, 428 US. 912, 49 L.Ed.2d 1221 a Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA, 1968) Dixon v. State, 143 Fla. 277, 196 So. 604 (1940) Frye. United States, 293 F. 1013 (D.C. Cir. 1923) Nebraska Press Association v. Stuart, 96 S.Ct. 2791 (1976)
Neil. Biggers, 409 U.S. 188, 34 L.Ed2d 401, 93 S.Ct. (1972) 3 7, 38, 39 People. Lewis, (County Court, 1980) 103 Misc. 2d 881, 427 N.Y.S. 2d 177 People. McDowelI (Co. Court, 1980) 103 Misc. 2d 831, 427, N.Y.S. 2d 181 Proffitt v. State, 315 So2d 461 (Fla. 1975) Quaglino v. California, 58 L.Ed. 26. 189 (1978) Sireci v. State, 399 So2d 964 (Fla. 1981) a9 State ex, rel. Collins v. Superior Court and Silva, 132 Ark. 180, State. Hurd, 86 N.J. 525, 432 A2d 86 (1981) Wisconsin v. Joseph R. White, (Unreported) Mar. 27, 1979,
STATUTES
B 921 -141, Florida Statutes (Supp. 1976-77) 52, 85, aa
OTHER AUTHORITIES
Florida Constitution:
United States Constitution:
vii
STATEMENT OF THE CASE
This is an Appeal from the conviction and sentence entered in the case of State of Florida vs. Theodore Robert Bundy, in the CircuitCourtof the Ninth Judicial Circuit, in and for Orange County, Florida, Criminal Justice Division, lndic tment No. C r79-4650.
The Defendant was convicted in two (2) Count IndictmentofKid - napping and First Degree Murder. He was sentenced to life imprisonment and to death, respectively.
The case originally arose inthe Circuit Court ofthe Third Judicial Cir - cuitin and for Columbia County, Florida, Case No. 78-169-CF. On October 30, 1979, venue for thetrial was changed tothe Circuit Court ofthe Third Judicial Circuit, in and for Suwannee County, Florida, Case No. 79-149-CF (8. 14645). On November 19, 1979, venue for trial was again changed from Suwannee County, Florida, to Orange County, Florida (R. 14687), and assigned the above referredto case number.
Judgment and Sentence were entered on February 1 2, 1980 (R. 14916).
On February 22, 1980, the Defendant filed his Motionfor New Trial, preserving for appellate review the points raised herein (R. 14914). On March 16, 1980, the Court denied Defendant'sMotionfor New Trial (R. 14965).
Noticeof Appeal was timely filed (R. 14970), and the State timely fileditsNoticeof Cross Appeal (R. 14974.).
In this Brief, the Appellant, Theodore Robert Bundy, willbereferred to as either the Defendant or Bundy. The Appellee, the State of Florida, willbereferredto as the State.
The following symbols will be used:
R - For RECORD ON APPEAL RP - For RECORD ON APPEAL, PENALTY PHASE.
STATEMENT OF THE FACTS
A. THE DISAPPEARANCE
On February 9, 1978, kimberly Diane Leach, age 12, was driven to thl Lake City Junior High School, located on Duval Street (U. S. Highway 901, Lake City, Columbia County, Florida, by her mother, Freda Leach, at approx mately 8: OO a.m. (R. 3865) It was a cold, rainy morning (R. 3989).
After chatting with some school friends, the Leach girl went to her homeroom class at approx mately 8:30 a.m. (R. 3899) Her homeroom class was located in the Centre Building (R. 3957). Her homeroom teacher was John Lawrence Bishop. After approximately fifteen minutes of attendance, the school bell rang for the first period class, which for the Leach girl was Physical Education. Because of the inclement weather, students assembled in the auditorium to watch a movie, as opposed to going outside to play (R. 3944).
For the Leach girlto get from her homeroom classroom in the Central Building to the auditorium, she had toexit the rear of the school building, go outside, walk around some portable buildings, and across the basketball courts (R. 39101, total distance of approximately 247 feet, to enter the auditorium (R. 6432). After she had departed the classroom, Mr. Bishop noticed that she had left her purse behind. He then dispatched a classmates, Tandy Bonner, to the auditorium to bring Leach back to her homeroom classroom to retrieve her purse (R. 3919). Leach did, in fact, leave the auditorium wit the permission of her Physical Education teacher, Mrs. Juanita Caldwell, and returned to Mr. Bishop's classroom and got her purse (R. 3943).
When she exited her original homeroom classroom to return to the and torium, it was approximately 9:20 a.m. to9:25 a.m. (R. 13878) This was the last time that anyone could positively identify having seen Kimberly Diane Leach until her remains were found in atin hog shed located in Suwannee County, Florida, and approximately 35 to 40 miles west of the Lake City Junior High School (R. 4236).
There was no report of a "positive" identificationof having seen the Leach girl after her disappearance until five months, three weeks and two days later (R. 4074).
On the day of her disappearance, as testifiedto by her mother, the Leach girl was wearing Hush Puppies shoes, white cotton socks, blue denim jeans, a blue football type jersey pullover shirt with the number 83 emblazoned in red on the front, a three-quarter length fur - rimmed coat, and she was carrying a denim purse (R. 3877).
B, THE SEARCH
AT approximately 2:30 p.m. that day, the Leach girl ' s parents were contacted by the school officials and informed that she had not attended her second period and subsequent class periods (R. 3875,, 3882).
A search of the school grounds and the school buildings was made and she was not found. The police were called in and began their investigation
(R. 3883).
On February 11, 1978, picture of Kimberly Diane Leach, her description, and facts of her disappearance appeared in the local and state news media, both press and television (R. 5773). Over the course of the next several months, a search inextent and intensity virtually unheard of in the annals of Florida history was conducted to locate her (R. 14522-14529, 4257).
A task force totaling some one hundred members, at any one time, was amassed and virtually every inch of ground in Columbia County, and surrounding counties, was covered by the search party (R. 4238-4239).
The search was commanded by a group of top-ranking law enforcement officers, who were assisted in their efforts by Assistant State Attorney, George Robert Dekle, of the Third Judicial Circuit State Attorney ' s Office.
(R. 4255, 4258)
On April7, 1978, (R. 4231) while partof the search party searched a wooded area near the Suwannee River in Suwannee County, Florida, one of the members of the search party, Florida Highway Patrol Trooper Kenneth W.
Robinson stumbled upon atin hog shed. Upon bend ing down and peeping therein, he saw remains ofa human body and apileof clothes (R. 4234-4235).
Trooper Robinson then summoned the other members of the search party (R. 4235). The area was cordoned offtoawait the arrival of the State Medical Examiner and Anthropologist, the Florida Department of Law Enforcement Crime Lab Team, members of the State Attorney ' sOffice, and the Investigators in charge of the disappearance ofKimberly Diane Leach (R. 4250).
During the course of the search and investigation, untold numbers of persons were questioned with regard to the disappearance. Numerous reports of sightings of the Leach girl were made to the task force, but none proved fruitful (R. 5775). Requests for information were made almost daily over the radio and television stations. Almost daily pleas were made in the Press for information from anyone who might have any knowledge concerning the disappearance of Kimberly Diane Leach, and for any such persons to please come forward. Fliers containing her picture, her name, her description, the descriptionof her clothing, were printed and posted in conspicuous places all over Columbia County, Florida, and in particular, at the Police Department located in the same building with the Lake CityFire Department (R. 4142).
a C, THE ARREST On February 15, 1978, at approximately 1:30 a.m., Police Officer David Lee of the Pensacola Police Department, observed an orange colored Volkswagen on Cervantes Street, Pensacola, Florida. It aroused his suspicion (R. 5152).
After following the Volkswagen for several blocks, the officer turned on his blue lights and pulled the vehicle over (R. 5154). He ran a radio tag check, which came back showing caro r tag missing (R. 5154). The officer ordered the driver out of the car and ordered himto lie prone on the ground with his hands out, so that the officer could "insect the Volkswagen vehicle for other occupants" (R. 5155).
The officer had his pistol drawn while he attempted to handcuff the driver's hands behind his back (R. 5155). A scuffle ensued, with the driver running away. The officerfiredat the fleeing driver. The driver fell down and was eventually completely handcuffed and taken to the officer ' patrol car (R. 5156-5157). He was read his Miranda rights and identified himself to the officer as one Kenneth Misner (R. 5173-5174).
Officer Lee testified at the Defendant'strialthat the driver said he wished he had killed him and, "If I run at the jail, will you shoot me then?"
(R. 5173)
0, THE INVESTIGATION
1. Collateral Crimes On January 15, 1978, the City of Tallahassee, Florida, awoke to the news that two Florida State University coeds had been murdered and two others beaten at the Chi Omega Sorority House. In addition, fifth female had been beaten in her apartment two miles from the Chi Omega Sorority House. Bundy was subsequently indicted, tried, convicted and sentenced to death for these crimes. His appeal from that judgment and sentence is now pending before this Court, being Case No. 57,772. It is respectfully requested that this Court take judicial notice of the record on appeal in that case for the purposes of this appeal.
2, The Interrogation Over the next several days, "Misner" was extensively interviewed by Officer Norman Chapman of the Pensacola Police Department, Officer Donald Patchen of the Tallahassee Police Department, and Investigator Steven Bodiford of the Leon County Sheriff ' sOffice (R. 10675-10736). Although the State would later abandon any attemptto use, attrial, any of the statements allegedly made to them (R. 10737-10738), many of such alleged statements appeared in the media and were used to establish probable cause in the State ' s obtaining future search warrants (R. 13038).
During this time, "Misner" revealed his true identity, to - wit: Theodore Robert Bundy. IT was learned that Bundy was wanted far escape and homicide in Colorado, and that he was on the Federal Bureau of Investigation's ten most wanted list.
Shortly thereafter, it was reported that Bundy was a I1suspect" inthirty - six sex-related murders in the northwest United States (R. 14524).
3. The Connection During the aforementioned interviews and thereafter, Bundy became the prime suspect in connection with the Chi Omega crimes (R. 14523). IT was learned that the orange Volkswagen which Bundy was driving on the night of his arrest was stolen from Ricky Garziniti in Tallahassee, Florida, on February IT was also learned that Bundy had been living at the Oaks Apartments in Tallahassee from January 7, 1978, until February, 1978, under the assumed name of Chris Hagan (R. 4562-4563). Other residents of the Oaks were questioned and their description and impressions of "Chris Hagan" revealed nothing of any evidential import.
Subsequent to Bundy ' s arrest, Homicide Detective Lester Parmenter of the Jacksonville Police Department contacted Steve Bodiford of the Leon County Sheriff ' sOffice (R. 502.41, and toldhimthat his fourteen year old daughter, Leslie, had had an encounter witha man inaK - Mart shopping center parking lot on February 8, 1978. She had been waiting for her brother, Danny, J to pick her up after school when a man driving a white van pulled up to her, got out of the van and engaged her in conversation (R. 4934). The man was wearing dark horn-rimmed glasses, a blue Navy-type uniform jacket witha badge that said " Fire Department, Richard Burton", on his chest (R. 4933).
Almost immediately thereafter, Danny pulled up and as he started to get out of his pickup truck, the man got back into the van and drove away.
Danny and Leslie attempted to follow him, but lost himintraffice. They were able toget his license tag number, which was 13D11300, Florida.
AT Bodiford's suggestion, Parmenter agreed to have his children hypnotized to help Bodiford on a case he was working (R. 5026). On February 14, 1978, Parmenter brought his two children to the Jacksonville Police Department to be hypnotized by Lieutenant Micklerofthat department (R. 4961). Each child was hypnotized separately, but each procedure was induced in the presence oftheir father and his riding partner, Steve Richardson, as well as Officer. K. Bryan (R. 4962). After the hypnotic sessions, each child was asked to separately make a police composite of the man they saw on February 8, 1978 (R. 4939, 4974). Both composites were introduced into evidence at the trial as State Exhibit Nos. 37 and 38 (R. 5040, 5042).
a Several days later, both of the Parmenter children were interviewed by Investigator W. D. Phillips of the Leon County Sheriff ' s Department. They were each shown six photographs of individuals and each picked out the picture J of Bundy as the man they confronted on February 8, 1978. The six photographs were introduced into evidence as State Composite Exhibit No. 36 (R. 4943).
On January 13, 1978, Randall Clayton Ragans reported his license tag had been stolen from his residence at 1002 St. Augustine Street, Tallahassee, Florida. The stolen license tag bore the number 13D11300 (R. 4641).
On February 11, 1978, at approximately 1:47 a.m., Deputy Keith Dawes of the Leon County Sheriff ' sOffice was paroling, in an unmarked car, an area of Tallahassee, one block away from the Oaks Apartments (R. 4643).
He observed a man, whom he identified at the trial as Bundy, locking or unlocking a car door (R. 4644). As he approached the man, he asked if he had 0 any identification, to which the man replied, 'lol'. Dawes shined his flash light into the car the man had been locking or unlocking, and observed a license tagin the floor board (R. 4645). The man opened the car door and handed Dawes the tag. IT bore the number 13D11300 (R. 4645-4646). While Dawes went to his patrolunitto run a registration check on the tag, the suspect fled (R. 4647). The tag was introduced into evidence at the trial as State Exhibit No. 26 (R. 4649).
4, The Van AT the trial, Richard Lee Shook, the Audio-visual Material Manager at ' the Florida State University Media Center, testified that on January 12, 1978, the keys too white Dodge van, No. 343, owned by the Media Center, dis- ' appeared (R. 4674-4675). In the early partof February, 1978, the van itself disappeared (R. 4679). The van was not seen again until February 13, 1978, when Chris Cochran, a Florida State Universe ty Media Center employee, observed it parked approximately two blocks from the Florida State University Student Union while he was on his way home from work (R. 4706). Cochran furthertestifiedthat when he passed the same spot at approximately 7:45 a.m.
the same morning, he did not see the van (R. 4714). All of the witnesses who testified concerning the van stated that numerous people connected with the Media Center had access to and used the van, and that the people wore a wide variety of clothing, including denim pants, cotton socks, tennis shoes, and socks of varying colors (R. 4660-4714).
Freddie McGee, the Media Center employee who was the principal drip - ver of the van, testified that approximately a year too year and a half prior to February, 1978, the rear of the van had been carpeted with some discarded carpet (R. 4752).
The van was taken into custody by Officer William Charles Wingate of the Florida State University Police Department, who took ditto the Leon County Sheriff ' s Department (R. 4752).
Shortly thereafter, crime lab unit from the Florida Department of Law Enforcement descended upon the van to process it for physical evidence.
Patricia Lasko testified that she "swept" the van tocollect and maintain trace debris for micro-analysis (R. 4869). In the debris she found hair samples and an orange price tag approximately one and one-half inches in size (R. 4870). She retained the hair samples for further study and turned the rest of the sweepings over to other Examiners for further investigation (R. 4875).
Ms. Lasko further testified that she processed certain items of cloth - ing belonging to the Leach girl, as well as clothes belonging to Bundy, for trace evidence and turned these trace materials over to Florida Department of Law Enforcement Microanalyst, Mary Lynn Henson, for analysis (R. 5328-5336 Ms. Lasko was also called asa defense witness (R. 6070). She testified that she did a microanalysis of all the hair samples found in the van, as well as those found at the crime scene (R. 6073-6074). Based upon the standard she had of Bundy's hair, she could make no comparisons between Bundy's hair and the hair samples found at either the crime scene or in the van (R. 6079).
Ms. Lasko also testified that her reading of the general information on the viology of the hair and the growth of hair of an individual, on the average, can lose as many asa hundred hairs a day from all over his or her body
(R. 6077).
Douglas Barrow, Florida Department of Law Enforcement Latent Finger - print Specialist, testified that he processed the van for latent fingerprints and was able to identify fifty-seven latent fingerprints, nineteen latent palmprints, and eleven latent impressions, either finger or palm (R. 5077). None of the eighty-seven prints were, in Barrow's opinion, of value (R. 5078). He compared these prints with one hundred and twenty-six known printsof other individuals and was able to match five with the known prints of five Media Center employees (R. 5080), but specifically excluded Bundy from having made any of the prints he was able to raise (R. 5080). He was unable to make a complete comparison with the printsof the Leach girl because he was unable to develop an accurate sample of her prints (R. 5081). He further testified that after comparing the prints in the van with the one hundred and twenty - six known prints, he still had remaining an unidentified fifty - one fingerprints, fourteen palmprints, and ten impressions which could either be a finger ora palm (2.5113). In addition, he could not compare Bundy'sprintswith the prints on any other item of physical evidence relevant to this case (R. 5085- The defense also called Dale Nut, another Florida Department of Law Enforcement Crime Laboratory Analyst, who testified that the soil samples taken from the van were different from the soil samples taken from the crime scene (R. 6090).
Richard L. Stephens, Forensic Serologist and supervisor of the Serology Section of the Florida Department of Law Enforcement Tallahassee Regional Crime Laboratory, was called by the State and testified that he found blood stains into areas of the carpet in the van (R. 5367). He testified that due to the deterioration of the blood stains, he could only conclude that the blood was of the Group B anti gen. All other tests were inconclusive (R. 5374).
The Leach girl had Group B blood, as does over fifteen percent of the entire human population (R. 5376-5377). However, he testified that he could not state how long the blood stains had been in the carpet (R. 5431).
Mary Lynn Henson, the State ' s expert in shoe track identification, and fiber analysis, testifiedto her examination of the shoe tracks and fibers, and ventured opinions relative thereto. Her testimony will be discussed in greater detail I below.
5. The Identifications Through the testimony of two Holiday Inn Employees and the State's handwriting expert, John McCarthy, the State produced evidence that Bundy had registered at the Holiday Inn, Lake City, Florida, on 'February 8, 1978, under the name ofRolfMiller (R. 4539 &4549, 4571-4589). As stated above, Danny and Leslie Parmenter were able toidentify Bundy as the driver ofa white van in Jacksonville on February 8, 1978.
However, priorto Bundy's Indictment on July 21, 1978 (R. 14023-14024), only one witness "placed" Bundy and the white van at the scene of the Lake City Junior High School on the morning of February 9, 1978.
Clinch Edenfield wasa 71 year old school crossing guard at the Lake City Junior High School on February 9, 1978 (R. 3987). He had held that post for six or seven years (R. 3987) Edenfield identified Bundy as the man he saw driving a white van in front of the Junior High School around 8:45 a.m. ' (R. 3991) He also testified that he might have seen the van come by once or twice before on that same morning (R. 3992). He testified that he saw Bundy on television a week or so later and recognized him as the man who came through the school zone (R. 4041). However, Edenfield did not report this to the police, nor was he even questioned until number of weeks later by Special Agents C. Dalton Bray and Joe Uebelner of the Florida Department of Law Enforcement (R. 8347).
Although Edenfield was certain the person he saw on television was the man he saw driving the van, he could not pick Bundy'spicture out of a photo lineup (R. 8348) Having seen Bundy'spicture on television, "lot since", he was then able to identify himattrial (R. 4045). Edenfield also "remembered" that the weather was good, the sun was shining, and it wasn't raining, tha tit was not cold and tha tit was in the summer time when he saw Bundy driving past the Junior High School (R. 4034-4035). Finally, Edenfield stated that he had never before seen Defense Counsel Thompson, even though Thompson had deposed Edenfield for over an hour on October II, 1979 (R.4046).
Although John McCarthy, the State's expert on questioned documents, stated that he could not testify that the Green Acre ' s orange price tag found in the van (R. 4871) came from the Green Acre ' s Sporting Goods Store in Jacksonville, Florida, (R. 4919), John Farhat, the owner of that store, was able to take the stand and identify Bundy as the man who purchased a Buck knifewiththatprice tag on it in early February, 1978 (R. 4881).
On cross-examination, Mr. Farhat described the man who bought the knife as having long, uncombed hair, facial hair " likeadrifter " (R. 4885).
On at least two occasions, Mr. Farhat had been shown a photo lineup with Bundy's pictures in them. He was shown the same photo lineup as Clinch Edenfield (R. 6109) when he was interviewed by Special Agent Hiller Robert Miley of the Florida Department of Law Enforcement on April 24, 1978 (R. 6108).
The photo lineup was introduced into evidence as Defense Exhibit No. 4 (R. 5664).
Mr. Farhat was not only unable topick out Bundy'spicture, but he speculated that another of the men depicted in the spread looked most like the man who came into his store and purchased a Buck knife. The man whose picture he identified was Timothy Dale Allen, who bears absolutely no resemblance to Bundy (R. 6108).
Mr. Farhat testified that sometime after he testified before the Colurnbia County Grand Jury which indicted Bundy, he saw Bundy'spicturein the newspaper and recognized him as the man who bought the knife (R. 4898).
The newspaper photo was introduced as State Exhibit No, 31 (R. 48971, and bears little resemblance too man with "long, uncombed hair, facial hair like a drifter".
Jacqueline D. Moore was called by the State (R. 3949 & 4260). She stated that on February 9, 1978, in the early afternoon she was driving east on Highway 90 from Live Oak, Florida, to Lake City, Florida, and observed a white van coming toward her from the opposite direction (R. 4260).
The van was weaving back and forth into her lane of traffic and caused her topulloff the road and make the remark, "What in the world is he going to do?" (R. 3953) She described the driver of the van and said she had a mental picture in her mind of the profile of the person who end angered her and her maid'slifethat day (R. 3957). Notwithstanding the fact that she had seen Bundy'spicture on television and in the newspapers on numerous e occasions (R. 4279), was aware of the intensive search for the missing Leach girl (R. 42&1), and that Bundy had been indicted for her kidnapping and murder (R. 4281), she never reported to the police, for almost two years, that Bundy resembled the man driving the van (R. 4281). Yet she was allowed to take the stand and testify that Bundy clearly resembled that man (R. 4261).
On July 28, 1978, Clarence L. Anderson, an Emergency Medical Technician employed by the Lake City First Aid Rescue Department, with the rank of Lieutenant, had his attention directed to the television set at the Lake City Fire Department (R. 4082). The profileof the person he saw on T.V.
just jumped out on him and bore a striking resemblance to the man that he had seen at the Junior High School with the girl (R. 4082). He got permission from his Chief to got o the Lake City Police Department (R. 4083), which is housed in the same building with the Dire Department. Mr. Anderson met a there with Larry Daugherty, Chief Investigator for the Lake City Police Department, and Assistant State Attorney, George R. Dekle. He told them that the person on the newscast bore a striking resemblance to the man that he had seen withagirlthat looked like the Leach girl (R. 4083). As soon as Anderson told his story to Dekle, Dekle asked him if he would undergo hypnosis to "make his memory better - to make things clear" (R. 4083). Shortly thereafter, Imogene Keene, a Social Worker at the Lake City Veterans Administration Hospital, hypnotized or attempted to hypnotize, Anderson (R. 4085).
Copies of the cassette tape ofthat hypnotic session were introduced at the trial as Defense Exhibit No. 22. After the Anderson-Keene hypnotic encounter, it was suggested by Dekle that Anderson be hypnotized again (R. 4105). On July 31, 1979, Larry Daugherty went to the Dire Department and asked Anderson if he was ready to be hypnotized again (R. 4107). Anderson was taken to the City Commission Room and this time he was hypnotized by another Social Worker from the Veterans Administration Hospital, JohnnyJack Burnette (8. 4112). A cassette tape recording of this hypnotic encounter was introduced into evidence as Defense Exhibit No. 23.
AT some point in time between the two hypnotic sessions, Anderson was summoned into the Dire Chief'sOffice where Dekle, Daugherty and others were going over Anderson's work records (R. 4165). Anderson was made aware that they were trying to determine if he had been working on February 9, 1978, because if he had been, then he would have had to be at the Dire Station and would have been mistaken as to whom and what he could have seen on that date (R. 4165). This was the first time the date, February 9, 1978, became significant tohim (R. 4167).
For the five months, three weeks and two days after the disappearance of the Leach girl until he reported the incident to Dekle and Daugherty, Anderson was aware of the intense activety involved in the search for the missing girl, the reports on T. V., radio and in the newspapers; he had seen her picture in the paper and on T.V. (R. 4142); was aware of Bundy's arrest and that he was a prime suspect (R. 4138-4139), and had seen Bundy's picture in the paper and on T.V. (R. 4143) Yet, he did not reveal what he had seen because Ill didn ' t want to really be involved. I wasn't absolutely sure that saw anything of, you know, any importance. I wasn't sure of any dates'. I just knew that saw agirlthat looked like the Leach girl and was not sure exactly that saw her, and mainly just not wanting to be involved, the biggest reason Didn ' t come forward." (R. 4074) However, after having his memory jogged by seeing Bundy'sprofile on television on July 28, 1978, after having been told to think about it by Dekle and Daugherty (R. 5087), after having talked it over with his wife (R. 40871, and after having been hypnotized twice, Anderson became the State's one and only eyewitness to the abduction of Kimberly Diane Leach.
He testified that he was working overtime at the Dire Station on February 8, 1978, and slept there that night (R. 4057). AT some time between 9:00 or9:15 the next morning, he left the Dire Station to go home, shower, shave and change clothes (R. 4058) He traveled west on Duval Street (U. S. Highway go), which would have taken him past the frontof the Lake City Junior High School (R. 4059). As he approached the Junior High School, he noticed a white van stopped in the west bound lane of Duval Street.
There were two cars backed up behind the van, and then his own truck. As he was waiting for the van to move on, he looked to his left and noticed a young girl, approximately twelve or thirteen years old, dark shoulder length hair, parted in the middle. He stated that the probable reason he noticed the girl was that she "looked like one of his nieces".(R. 4063). With this girl was a man, approximately early thirties, light to dark brown hair, full cut. He really noticed the man's hair because he had ''a nice head of hair" (R. 4063). He got the impression the girl was either crying or had been crying. The man had a scowl on his face (R. 4063). He got the impression that the little girl had gotten into trouble at school and that her father had come to pick her up (R. 4064). The girl was wearing a dark blue pullover football jersey and probably dungarees. The football jersey had either the numbers 63 or 83 in red-orange on it (R. 4064). She was carrying a pocket book or a rolled up jacket or maybe both. The man had her by the Left arm, about the elbows, and was leading her toward the white van. The girl was not actively resisting, but she wasn't anxious to go (R. 4064). They crossed the street, went in front of the van, the man opened the passenger door of the van, helped the girl in, slammed the door, jogged around to the driver's side, got in and drove off (R. 4065). When shown State Exhibit J (photograph of the white van), he identified it as being very similar to the white van he saw that morning (R. 4069). When shown State Exhibit I (Picture of Kimberly Diane Leach), he positively identified her as the young girl he saw at the school on February 9, 1978 (R. 4071). When asked to look around the courtroom to see if there was anyone who closely resembled the person he observed leading the young girlto the white van on the morning of February 9., 1978, Anderson immediately turned to Bundy and stated, "The I' Defendant'' (R. 4072).
Leland Douberly, the custodial of records of the Lake CityFire Department, testified that the departments records reflected that Anderson did, in fact, work overtime on February 8, 1978. The records indicated that he worked until ll:03 p.m. (R. 4190) Douberly also testifiedthatif Anderson had been at the Dire Station from midnight until8: OO a.m. on February 9, 1978, he would have been paid forthat time, and that the records did not indicate that he had been paid forthattime (R. 4196). The records also indicate that Anderson commenced work on February 9, 1978, at8: OO a.m.
E. PRETRIAL MOTIONS
Bundy filed numerous pretrial motions, most of which were denied by the trial court. (See Defendant's Motion for New Trial [R. 14924-14932J)
1. Hypnosis Although the defense was aware that no less than eight states' witnesses '' had undergone state-sponsored hypnosis in an attemptto enhance their memory and recall, only C. L. Anderson's testimony was sought to be suppressed on the grounds that his recall was either affected or induced by hypnosis. The defense fileditsfirst Motion to Suppress the Anderson testimony and identifications on September 17, 1979 (R. 13002, 13006) Hearing was held on said Motion on November 10, 19, and 20, 1979 (R. 13699-14022). The defense called Dr.
David S. Kuypers, who qualified as an expert in forensic psychological hypnosis (R. 10878).
Or. Kuypers described the differences in the use of hypnosis in the clinical setting and the forensic setting:
" IN the clinical setting, for example, if we use the age repression procedures, which basically is taking a person back to 're-live' a -- it ' not quite reliving, it ' s more a stimulation, but going through that procedure, we are more concerned, for example, in some cases about the emotional response of individual, the accuracy of what is reported or recalled is not that important in terms of helping them to learn how to deal with what might have happened in the traumatic incident and so on. In the case of forensic hypnosis, there's a great concern for accuracy of recall and this is one of the established reasons why certain standards have been established and guidelines are used in order to insure that the results obtained are as accurate as possible."
(R. 10884)
In describing why the procedures in the forensic setting are so important, Or. Kuypers stated "The three characteristics of hypnosis that referred to before: increased susceptibility to suggest ion, the utiI izat ion ofi magic nat ive capacities and the decrease incritical judgment or awareness. All those factors would create difficulties in the following way. In the state of hypnosis, a person is more responsive to suggestions. Inappropriate suggestions are given and a person is going to accept them. We also know that in the state of hypnosis that people are capable of confabulating-- these are made up responses to account for gaps in memory or other things that may have taken place or even feelings that they have. They may have no basis in reality, however, the individual in the state of hypnosis and afterwards believes them very sincerely to be correct and true. These kinds of things can happen in hypnosis, partof the problem we encounter is that it isdifficultto ascertain whether or notit actually occurred because the people who experience these things are sincere and truth fully believe that accurate recall has been established when, indeed, it may be a confabulatory response, it may be an altered response or something ofthat nature that can occur either spontaneously in the state of hypnosis or because a particular suggestion that may have been given by the operator." (R. 10886-10887) Dr. Kuypers defined the term, "confabulation":
" A confabulatory response or a confabulation in hypnosis is a response that is made up and does not have a basis in reality. This can bet o account fora gap in memory that the individual cannot recall even in hypnosis. It can be used to account for emotional feelings that are going on. And, in that sense could be a type of explanation, but basically, it is a made up response." (R. 10887) as well as "altered response" or "altered memoryll:
"As I am referring to an altered response in this situation of forensic hypnosis, I ' m basically talk - ing about a recall that the individual has. Something they actually remember that is altered or changed asa result of the hypnotic procedures.Il (R. l0888) He also stressed the importance that careful consideration be given in making the determination of whether or notapotential witness should be hypnotized in the first place (R. 10888-10890), and thatif the decision is made to go forward, certain protocols must be employed to minimize contamination of the witness' memory (R. 10890-10897).
Dr. Kuypers further described the numerous inappropriate procedures and questions utilized by Keene and Burnette in their attemptsto enhance Anderson's recall through hypnosis (R. 10940-10961). He further opined that Anderson should never have been hypnotized in thefirstplace, because of the lapse oftime between the event he was attemptingto remember and the hypnotic episodes, and because of all the information he had learned about the event during that intervening period of time (R. 10961-10962 & 10972-10976).
His opinion of Anderson's testimony was that it was unreliable (8. 10962).
The defense also called Dr. Milton V. Kline, who was qualified as an expert in clinical and forensic psychology (R. 13674).
After defining and describing the phenomena of hypnosis, Dr. Kline stated that the protocols employed by the therapist in submitting a subject to clinical hypnosis or forensic hypnosis are very different (R. 13678-13679).
The reasons for the difference in protocols is that in clinical hypnosis, the therapist is attempting to help the subject; to alleviate physical or emotional pain and to persuade himto deal with unpleasant or repressed memories (R. 136811, whereas with forensic hypnosis the recall itself, and in particular the accuracy of it, are the objectives (R. 13681).
In response to the question of whether or not the therapist, ina clinical or therapeutic setting, is concerned about the accuracy of that recall, Dr.
Kline stated:
"Sometimes, ultimately, yes. Initially, no. We are concerned with the meaningful ness or the value of being able to recall traumatic events, disturbing events, in one'slife history that has been repressed rather than forgotten, and the process of opening up that repressive mechanism, is what contributes and helps the patient to get better, but-very often, the memory, initially uncovered, in the analytic or other therapeutic workings, which hypnosis or other techniques are used, the memories that are recovered are frequently what wecalla screen memory, and they are not valid memories. They encompass the same effect, or the same emotion, but they are not necessarily actual memories. They may be fantasies, they may be confabulated, but they may serve to bring this person in contact with those feelings, and that ' s why it ' s important therapeutical treatment.
The validity ofthat specific fantasy is of no greater consequence, therapeutically, than the fact that you may have had last night a very meaningful dream and that dream may reflect what's going on in your mind about the events of today, or the events oftwo weeks from now, butthat dream was invented by you, you wrote the script, it wasn't an actual experience, but it may never-the-less be very revealing, of the things that you wanted them to reveal.
The same thing with hypnotic recall. The organization with the structure of the material within the individual's mental apparatus does not necessarily have to be a valid recollection for it to be meaningful and emotionally viable and therapeut ica Ilycorrect ive."
(R. 13682- 13684)
Dr. Kline stated further that because of a subject'sabilityto develop screen memories or to confabulate under hypnosis, a number of very specific guidelines should be employed in the forensic hypnosis setting to minimize inaccurate recall (R. 13684).
First, one should determine whether to use forensic hypnosis in the first place. Dr. Kline stated in that regard:
"One would use it in order to gain access to aspects particularto an individual's memory, which might not on any other basis be available for elucidation.
There would be no justification - in my opinion, and most of my colleagues' opinion, for utilizing hypnosis, unless it ' for the purpose of gettingatmater - ial, which it has been demonstrated cannot be obtained by more conventional, appropriate methods of inter ie wing, int er rogat ion, or ment aIstat us ex aim nat ion."
(R. 13685-13686)
With regard to guidelines to be followed, once the decision has been made to employ forensic hypnosis, Dr. Kline stated:
"...So, the first guideline that would establish would be a careful psychological, or in general terms, a mental assessment of the individual with whom hypnosis is going to be utilized. And that clinical assessment should be comprehensive enough to give you an idea of the emotional stability, of the possibility of any psychopathology, the instances of delayed recall, or the instances in which there are instances of periods of amnesia, instances in which there are some dis association in terms of everyday functions..."
(R. 13687-13688)
"Another guideline..., unless there are extenuating cir - cumstances, the subject to be examined should be examined ina room only with the examiner, with video tape, and ideally, the video tape should be done through a one-way vision screen..."
(R. 13689)
"Third parties, unless they are for security reasons, if there are security problems, should be excluded from the room in which the hypnosis is going on."
(R. 13689)
Another guideline stated by Dr. Kline:
"A1 I communication about the individual Is memory that one wishes to ascertain or retrieve should be communicated to the investigator inwriting, never verbally on the partof the subject. The investigator should himself, or herself, involve ina direct verbal examination or integrate her examinationof the subject on a verbal basis priorto the induction of hypnosis."
"Everything he or she needs to know should be provided inwrittenform, every aspect ofthat individual that is available should be transmitted and should be carefully studied and prepared."
(R. 13690-13691)
Dr. Kline had been furnished copies of investigative reports of Daugherty, dated July 28, and 31, 1978, pertaining to the witness, C. L. Anderson, as well as the transcript of the Dekle-Anderson interview of July 28, 1978, He was also furnished witha transcript and tape of the hypnotic session between Anderson and Keene on July 28, 1978; a transcript and tape of the hypnotic session between Anderson and Burnette on July 31, 1978; a copy ofC. L.
Anderson's deposition taken on August 27, 1979; copies of articles appearing in the lake City Reporter on February 13, June 28, July 24, and July 28, 1978; and copies of the depositions of Keene and Burnette (R, 13695).
After having studied these materials, Dr. Kline was asked to express his opinion as to whether Anderson would have been a proper subject for attempted forensic hypnosis on July 28, 1978. His response was:
" IN my opinion, no." (R. 13697) In response to the question, "And why not, sir?" (R. 13647), DR, Kline stated:
" I review this asa contaminated examinational situation, in that too long a period oftime has elapsed - during which he has been exposed to material in the media, he's been exposed to comments from friends and associates, fellow citizens, ina community that would obviously be concerned about acrimeof such violence, particularly witha youngster - this is the kindof crime which has a high rate of publicity, which it should have, ina community that is concerned, and he would have had material presented tohim which he may have registered, and - or may not have - there's no way of knowing this, but my opinion is that he was already so bombarded by the media's contrusion in terms of his ideas, associations and particularly, his feelings, - that the induction of hypnosis would complicated rather than clarify this situation. Unless there were extraordinary circumstances, which I do not find, from my opinion, present in this instance, I would preclude the use of hypnosis asa viable and protective tool in the examination of this particular witness." (R. 13697-13698) (Emphasis supplied) Dr. Kline ' s opinion of both the Keene and Burnette hypnotic interviews was:
"... I would say that there is clear evidence of there being confabulated materialthatinall probability would be mixed into his responses. But because of the manner these proceedings were undertake, it ' s impossible to know where and how, but rather that the whole thing has no reliability - and there's no one aspect that one could accept as, again, reliability, contextual consistency, because of this confusion and conf abu Iat ion, and cont am ina tion."
(R. 13725-13726)
"...Frequently, material that has been blurred or acquired or imputed at some point, priorto the hypnotic experience, may be recalled out of position, may be recalled as something observed, as something read - in other words, he has no ability to really discriminate or differentiate as to the source of the material in one's head. That ' s the problem with this kind of contamination. It will come out, and the subject is unable to discriminate and know from what source that material came."
(R. 13726-1 3727)
As an example of why Dr. Kline doubted the reliability of Anderson's identification, the factthatin none of Anderson's reports to Daugherty, Dekle Keene, Burnette, nor at his depositions, did Anderson recall seeing the Leach girl ' s rather distinctive coat. A number of witnesses, including her mother, testified that she was wearing a three-quarter length car coat, tan colored, witha fur collar and furtrim around the front and sleeves, on the day she disappeared. Tandy Bonner, who testified at the suppression hearing and who was the last person to see the Leach girl before she disappeared, said she was, in fact, wearing the coat moments before Anderson said he "witnessed" her abduction. (R. 13877-13878) Dr. Kline was asked if, in his opinion, there was any reason Anderson selectively perceived things, if he was reliving and seeing that scene and reviewing the events (R. 13728).
Dr. Kline responded:
"The answer tothat is Yes - but one would have to know the reasons for the selectiveness or the intention.
IF he is recalling a scene, and can ' t identify an article of clothing, which in fact is known to have been worn atthat time, that then would mean one of several things; one he did not see that scene. Or that he saw that scene and there was selective inattention to that fact. Why there would be selectiveness as to that fact, and nothing else, in itself only poses another problem. The most likely interpretation tothat would be that he was describing another scene, and another situation. If something as basic as outer garments seen is now being retrieved from the memory. One thing about memory retrieval is that it comes through in details, not in fragments. If comes through or it doesn't come through. If we are getting confabulated responses, then wewill be getting gaps in details in terms of independent things, which will have to be til!ed in, so that -- I add this, because it is important, in relation to hypnosis - individuals who fill in what they remember, and use their imagination to do that, may draw on facts that they have incorporated from non observed sources. They are not lying - they really believe this as they are perceiving it, butt is a confabulated memory creation. It is not retrieval.
Retrieve I has distinct characteristics and spontaneity.
IF this was omitted, this would imply most likely, that this was not a retrieval process thathe are observing, but confabulatory process, partof which has actual elements, actualized from on the spot experience, part of which is taken from an unassociated source - in other words, it is like source amnesia - when somebody can not remember something, when he draws upon what he does remember, itwillfit the general characteristics and ins purse (sic) it and you get the memory. IT is not accurate, but person feels it is. There is not a question of the deception on the part of the witness, but there is a very real question as to the accuracy. One could not say it was real." (R. 13728-13730) The bottom line of Dr. Kline ' s testimony was that. L. Anderson's v testimony was unreliable. (R. 13743) In addition to the testimony of Drs. Kline and Kuypers, the defense also provided the trialcourtwiththeirwritten critiques of the Keene and Burnette hypnotic interviews filed with the court, as an exhibit to said Motion, the affidavitofMartinT. Orne, Ph. D., filed with the United States Supreme Court in the case of Quaglino v. California, 58 L.ed. 2d, 189 (1978); rehearing denied 58 L.ed 2d, 670, and the opinion rendered by the Honorable Ted E.
Wedemeyer, Jr., in the case of Wisconsin v. Joseph R, White, (unreported) March 27, 1979, Circuit Court, Branch 10, Case No. J-3665, Milwaukee County, Wisconsin.
The State offered no scientific evidence in rebuttal at the Suppression Hearing. The trial court entered its order denying the Motion without prejudice to raise the issue again at the timeoftrial (R. 13387).
On January 22, 1980, Bundy filed his Second Suppression Motion to Suppress Testimony of Certain Witnesses whose recollection had been affected and altered by hypnosis (R. 14732). The purpose of this Motion was to bring to the Court'sattentiona resolution adopted in August, 1979, by the International Society of Hypnosis condemning the use or attempted use of forensic hypnosis by police officers and other lay people (R. 14724). The Second Motion to Suppress Testimony of Certain Witnesses. called whose testimony was affected and altered by hypnosis; together with the Resolution of the National Society of Hypnosis, was denied by the trial court immediately preceding the trial testimony ofC. L. Anderson (R. 4055).
2. Fibers and Shoe Tracks Analyst Mary Lynn Henson qualified, over defense objection, as an expert in fiber and shoe track analysis (R. 5460). She had examined various objects, articles of clothing, shoes, shoe tracks, and fibers in connection with the Leach case (R. 5460). Her examinations fell into two groups: those involving the comparison of various latent shoe tracks with several shoes (R. 54614468); and those comparing similar fibers collected from various items of clothing and a carpet (R. 5468-5500).
The shoe track analysis, as described by Ms. Henson, involved determine whether or not particular type of shoe made a specific track (R. 5461). She testifiedthata piece of Saran wrap is placed over a photograph ofa shoe track, the detail is traced onto the plastic, and then the plastic is placed over the sole of the shoes (R. 5461). A comparison is made between the plastic overlay and the shoe, and then a determination is made as to whether or not that particular shoe could have made a specific track (R. 5462).
Henson stated no scientific points of comparison other than those readily apparent to the casual, untrained observer: the size, shape, and tread design of the shoe (R. 5462).
Henson also testified as tocertainfiber examinations and comparisons she made in the Leach case (R. 5468-5500). She collected literally thousands of fibers from the clothing of Leach, the carpet of the van, and the clothing of Bundy (R. 5468-5500). Henson stated that the fiber analysis was in two stages: (1) particular fiber would be identified through observation of size, shape, texture, luster and cross section; and (2) the fiber would be compared to those known fibers from the clothing of Leach and Eundy and the van carpet to determine the source (R. 5468, 5487-5490). Out of the thousands of fibers collected, she searched for and found: four fibers like the known fibers from the carpet; two fibers like the known fibers from Leach's pants or purse; three other fibers like the known fibers from the purse; one fiber like the known fibers from Leach's socks; one fiber like the known fibers from Leach's coat collar; one stand of fibers like the known fibers from Leach's jersey; one fiber like the known fibers from Leach's pullover shirt;
two fibers like the known fibers from Bundy's sports coat; and one fiber like the known fiber from Bundy's shirt (R. 5487-5495). She compared the source of each fiber with the object on which the fiber was located to determine if a "cross-transference" had taken place (R. 5494).
Based upon her "observations", without ever using a verifiable scientific procedure of analysis, she concluded tha tit was extremely probable that Leach's clothing had come into contact with the carpet of the van at some time, that Bundy's clothing very probably had come into contact with the carpet of the van, and that the clothing of each probably had come into contact with each other (R. 5499).
Henson stated on cross-examination that she did not look for any fibers other than those that could have come from Leach's clothes, Bundy's clothes, or the van carpet (R. 5543). She stated that she could nottellifa specific fiber came from particular garment (R. 5540). Henson had no idea how many potential sources existed for those few fibers she identified (R. 5541- 5542). She immediately dismissed, and for some reason ignored, any fiber that cou Id not have come from Leach or Bundy's clothing or from the van carpet (R. 55444545). She did not consider the other fibers when determining who or what else might have come into contact with the three sources (R. 5545).
She stated that it was possible that the three sources never came into contact with each other, although her opinion, unsupported by any scientific data, was tha tit was unlikely (R. 5553).
3. Change of Venue or in the A Iternat ive. Abatement of Prosecution Bundy'strial was scheduled to commence on November 5, 1979, in Columbia County, Florida. On September 17, 1979, the defense fileditsfirst Motion for Change of Venue (R. 14522), citing the massive and pervasive publicity that Bundy had received had precluded any opportunity forhimto receive his constitutional righttoafairtrial. A supplemental motion was filed on October 4, 1979 (R. 13116). Hearing on the motion was held in Columbia County, on October 22, 1979 (R. 11020-11335). The court reserved ruling pending voir dire of prospective jurors and, because the Indictment against Bundy alleged that the crimeof murder was committed in either Columbia or Suwannee County (R. 14023), gave Bundy the opportunity to elect venue in either county, pursuant to3 910D3, Florida Statutes (R. 14638).
Bundy filed his notice of election on October 26, 1979 (R. 14639). In the notice the defense specifically stated that the election of venue in Suwannee County was not acquiescence thatafairtrial could be obtained there, but was merely compliance witha statutory requirement.
On November 6, 1979, an attemptto pick a jury in Suwannee County was commenced (R. 11346). The defense also filed another Motion for Change of Venue or in the Alternative to Abate Prosecution (R. 14654). After three days and after examining only twenty-seven prospective jurors, the court granted the Motion for Change of Venue, but denied thatportionof the motion praying for Abatement of Prosecution (R. 14687).
The court found that:
I'...because of the pervasive ness and situation of the press and media coverage, not only of this case, but also of the Defendant's recent murder trial in Miami, Florida, which was, fora large part, prosecuted concurrently with this case...", along with other factors, it would be "highly improbable, if not impossible" to empanel a jury in Suwannee County, Florida (R. 14688).
The court ordered the case transferred to the Ninth Judicial Circuit, 1 Orange County, Orlando, Florida, and trialto commence there on January 7, Limitation of Death Qualification of the Jurv In anticipation of the prosecution'sattemptto "Death Quality" the jury, the defense, on November 6, 1979, filed Motion toLimit Death Qualification of Jury (R. 14658). The defense urged that the court should prohibit - any questioning of trial jurors (as distinguished from advisory sentence jurors) regarding their attitudes toward the death penalty, (Emphasis supplied) (R. 14658) As an alternative, the defense moved the court not to eliminate or disqualify potential jurors for cause because of their views on capital punishment if those views would not preclude them from finding the defendant guilty of acapital crime (R. 14658).
The motion was denied and substantial inquiry about the death penalty was allowed during voir dire commencing on November 6, 1979.
F. TRIAL
1. Motion for Change of Venue or in the Alternative to Abate ProSecution.
On January 9, 1980, the defense again filed Motion to Change Venue or in the Alternative Abate the Prosecution (R. 13470). A hearing was held on the Motion on January 10, 1980 (R. 1159-1269). The defense again documented for the court, through exhibits and testimony, that the Orange County area had been permeated with as much, of not more, pervasive media notoriety about Bundy, as had been demonstrated to be present in the Columbia-Suwannee County area.
Professor Kyle Philip Taylor of the University of Central Florida testi - fied at the hearing (R. 1220). Professor Taylor was a Professor of Communications and qualified as an expert in the field of public opinion polling.
Professor Taylor had been commissioned by the defense to conduct a poll concerning the Orange County voters' knowledge and attitudes about Bundy and the Kimberly Leach case (R. 1224). Of the three hundred and thirty-one persons contacted in the poll, three hundred and twenty-five, or ninety-eight percent, indicated that they knew the name of Ted Bundy (3.1237).
The court reserved ruling on the Motion pending further attempts to seat a jury (R. 1269).
The court never entered a specific order denying the Motion. However, implicit in the court ' s swear ing in of a jury and proceeding totrial is the denial of that motion.
2. Voir Dire Voir Dire examination of over one hundred and eighty prospective jurors, which took over eleven days, resulted ina jury being seated in Orange County.
Virtually every venire person examined expressed knowledge of Bundy and the facts of this case or the Chi Omega case in some greater or lesser degree.
Each venire person was individually voir dired. Prior to Counsel's a examination, the Court admonished each juror to set aside any prior opinions and/or preconceived notions and judge the case solely on the evidence presented.
The court asked each if they could do that and each of the twelve jurors and three alternates selected said they could (R. 765).
Even though the defense was given back three peremptory challenges it had previously used, the defense was forced to use allofits twenty peremptory challenges on jurors it contended should have been removed for cause.
The defense requested and was denied additional peremptory challenges
(R. 3258).
The standard applied by the court was thatifa juror would say he or she could put preconceived notions and opinions aside and judge the case solely on the evidence, they were not challenge able for cause.
In addition, five potential jurors who expressed an opposition to the imposition of the death penalty were excluded, even though they stated that they could impartially determine guilt or innocence. (See: Sutton, R. 658;
Neel, R. 1329; Strong, R. 2095; Speir, R. 2465; and Hinkle, R. 3016) All five venire persons, Sutton, Neel, Strong, Speir and Hinkle, were excused by the trial judge because they said they would not vote for the death penalty. (Sutton, R. 666; Neel, R. 1330; Strong, R. 2095; Speir, R. 2474; and Hinkle, R. 3022) Defense counsel objected in timely fashion to the exclusion of each of these persons, with the exception of Neel. (Sutton, R. 666;
Strong, R. 2096; Speir, R. 2474; and Hinkle, R. 3022) Counsel's failure to object to the removal of Nee1 should not be interpreted asa waiver in light of counsel's continued objections to the removal of subsequent venire persons for the same identical reason.
There were no jurors on Bundy's jury who expressed opposition to or any reservations toward the death penalty in general, or its possible imposition in the present case.
3. Flight During the course of the trial, over defense objections, the state was allowed to present evidence of alleged flight by the defendant. The court allowed two police officers, Officer David Gordon Lee of Pensacola (R. 5150- 5192), and Deputy George Keith Daws of Leon County (R. 4642), totestify that the defendant, on separate occasions attempted to elude capture by fleeing.
The defense had filed motion to exclude this testimony entitled, " MotioninLimineto Exclude Testimony ofF light ", in open court on January 22, 1980 (R. 14920). The court reserved ruling upon the motion until the testimony was offered. The defense renewed the motion priorto the testimony of each of the two law enforcement officers (R. 4590-4639 & S124-5129) Upon conclusion of the trial, the trial judge, over defense objection (R: 6741), instructed the jury concerning the evidence of flight:
" You are instructed that flight of the defendant is a circumstance which may be taken into consider ationwithall other facts and circumstances in evidence, and if you, the jury, believe and findf om the evidence beyond every reasonable doubt that the defendant fled for the purpose of avoiding arrest and trial under the charges herein, you may take this fact into consideration in determining the guilt or innocence." (R, 6939)
4. View On January 29, 1980, the defense filed its Motion for View in open court (R. 14787). The defense had contended, in the hypnosis arguments and through the testimony of its experts that while the witness, C. L. Anderson, may have seen "something" at "sometime", his factual account of "what" he saw was totally unreliable.
Since the court declined to suppress Anderson's testimony, it placed the burden upon the defense to negate the incriminating import of his testimony.
It was the contention of the defense that the only way the jury could fully appreciate the argument that what Anderson ttsawtt was - not the abduction of the Leach girl by Bundy, was for the jury to actually visit the site to see the spatial relationship and distances between the homeroom class building, the auditorium, the place where he first saw the man and girl, where he said the van was parked, and his own vantage point (R. 5590).
The court denied the motion, finding there were other adequate means of demonstrating the distances and spatial relationships (R. 14808).
The only way the defense could "adequatelytt demonstrate the distances and spatial relationships was to send its investigator, Donald Robert Kennedy, to the Lake City Junior High School to photograph and measure distances.
The slides and photographs taken by Kennedy were introduced into evidence as Defense Exhibits 27 and 28, respectively (R. 6435 & 6455). Kennedy also prepared a plastic overlay which corresponded to the aerial photograph previously introduced into evidence as State Exhibit2 (R. 6428). The plastic overlay became Dee, use Exhibit 26 (R. 6430).
Anderson had previously marked the aerial photograph, identifying three local ions:
"A" - as the place where he had to stop (R, 4066) ltBll - as the place where the white van was located (R. 4066).
"C" - as the place where he first observed the man and girl (R. 4067).
Kennedy testified that the distance from point "C" to the steps of the auditorium (where the Leach girl would have been going after she retrieved her purse and left the Central Building)] was two hundred and sixty feet (R. 6431);
that the distance between "B" and "C" was forty feet (R. 6432); that the distance between where the Leach girl would have exited the Central Building where Bishop's class was located, to where she would have entered the auditorium, was two hundred and forty-seven feet (R. 6432); and the distance from the corner of a portable building which the Leach girl would have had to walk around on her way back to the auditorium, to the point where she would enter the auditorium, was seventy-seven feet (R. 6434).
Kennedy testified, and as depicted in the photographs, that from location "E" (the van), the Central Building could not be seen nor could the east entrance steps to the auditorium be seen (R. 6438), but the corner of the portable building could be seen (R. 6439).
Kennedy also testified that in February, 1978, between the hours of 7:45 a.m. until 1O: OO a.m., the traffic on Duval Street (U. S. Highway 90) in front of the Lake City Junior High School would have been very heavy.
(R. 6445)
G. POST TRIAL
1 - Penalty Phase The defense submitted a Motion to Enter Life Sentence on Verdict and to Prohibit Penalty Phase ofTrialto the court on February 9, 1980 (R. 14840- 14842). The Motion alleged that Bundy was forced to risk a death sentence to exercise his rightto jury trial. The court, after lengthy debate by defense and prosecution, denied the motion (RP. 13) The defense moved fora statement of particulars regarding aggravating circumstances and a proposed state witness list (RP. 7). Both motions were denied (RP. 13). Thereafter followed a motion to poll the jury to inquire about intervening influences upon them (RP. 13). That motion was denied (RP.15).
The state began its presentation of aggravating factors to the jury with the testimony of Jerry Thompson (RP. 20-25). Thompson was a law enforcement officer from Utah, there totestify about Bundy'sUtah conviction for kidnapping (RP. 21). The state introduced, over defense objection, copies of the Judgment and Sentence from Utah (RP. 24). The state then called Mike Fisher, a law enforcement officer from Colorado, there totestify about the alleged escape by Bundy from Colorado authorities while awaiting trial on criminal charges (RP. 25-33). Fisher was allowed, over defense objection, to testify that Bundy had escaped from Colorado jail (RP. 28-32). The state last called Larry Simpson, an Assistant State Attorney in Leon County, Second Judicial Circuit, Florida (RP. 34). Simpson testified, over defense objection, to the prosecution of Bundy for crimes committed in Tallahassee, Florida, (RP. 37) and Bundyls conviction on those charges (RP. 38). The trial Judge 0 denied final defense motion for Judgment ofAcquittal (RP. 45).
The defense presented only one witness in mitigation, Carole Ann Boone
(RP. 46-66).
The defense submitted written jury instructions regarding the penalty phase of trial and moved that they be acjopted (RP. 14837-14839). The Court considered each instruction, decided to modify and use numbers one (I), three (3) and ten (lo), while denying the others (RP. 69-83). The trial judge specifically modified number ten (10) to read:
"The physical changes of the body occurring after death cannot be considered by you in your determination of whether the state has proved beyond a reasonable doubt that the capital crime was especially heinous". (RP. 82) The court then allowed, on defense motion, two final arguments to each side (RP 83-88). Final arguments on each side were presented to the jury 0 (RP. 90-130), and the jury retiredto deliberate (RP, 138). The jury returned briefly for additional instruction, then returned to deliberate (RP. 139).
The jury returned again with an advisory sentence: Death (RP. 144). J The jury was polled (RP. 144-147), and sentencing was set for February 12,
2. Sentencing Court reconvened on Tuesday, February 12, 1980, withall parties present, whereupon Bundy was adjudicated guilty of the kidnapping and murder of Kimberly Diane Leach (RP. 159). The defense again objected to the aggrava-- ting circumstances alleged by the state and the trial judge again denied those objections (RP. 160-172). The court then denied a defense motion to defer sentencing (RP. 172).
Immediately afterafinal statement to the court by Bundy, the trial judge read his sentence and his findings of aggravating and mitigating factors
(RP. 186).
Bundy was sentenced tolife imprisonment for the kidnapping, and to death for the murder, of Kimberly Diane Leach (RP. 194-195).
ARGUMENT
I, THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S SEVERAL MOTIONS TO SUPPRESS
THE TESTIMONY OF CERTAIN WITNESSES WHOSE
RECALL HAD BEEN AFFECTED OR ALTEREDBY
HYP N0 sIS.
A. The pretrial identification procedures utilized by the State on the witness, C.L.
Anderson, in his identification of the Leach girl, Bundy and the alleged "abduction" were inherently suggestive and a violation of due process.
AT the time the defense was arguing its position cn the unreliability of hypnotically induced memory, the weight of legal authority on the subject was as set forth in the State'sbrief in opposition thereof, i.e., that the fact that a witness had been hypnotized went to the weight or credibility of his testimony, rather than toits admissibility (R. 13198-13212).
It was the contention of the defense, however, that due to the lapse of time between the disappearance of the Leach girl and the revelation of Anderson almost six months later, the massive amount of information about the events that Anderson had ingested during that period of time, and the blatant misuse of hypnosis by Keene and Burnette, that substantial likelihood of an irreparable in-court misidentification of Bundy by Anderson would occur.
The defense relied upon the case of Neil. Biggers, 409 U.S. 188, 34 L.ed.
The Neil. Biggers court outlined the factors to be considered by the trial court in determining:
"...whether under the ' totalityof the circumstances', identification was reliable even though the confrontation procedure was suggestive".
"As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminalat the timeof the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length oftime between the crime and the confrontation".
Neil. Biggers, supra, at 198-199.
The entire scenario, as described by Anderson, leaves little doubt that he had the opportunity to see the abduction of the Leach girl. The state did not introduce one shred of evidence to corroborate Anderson's identifications.
Anderson's recollection of the time he cal, med ie saw the llabduction'f was fraught with vacillation and indecision. From the time he first reported his revelation, to Dekle, until he testifiedat the suppression hearing, he gave varying estimation of what time of day he saw the "abduction". His first answer before the court on the subject was:
lt...Well, that ' s as close as I can get tit, around 830, butt could have been easily 9, o ' clock, but I think, it was around 8:2O, 8:45, somewhere around that, butt could have been later, easily." (R. 14017) His original recollection of when it happened:
"MR. DEKLE: When was it that you saw this man put this girl into the white van?
MR. ANDERSON: Ican ' t remember the exact date.
MR. DEKLE: Just approximately?
MR. ANDERSON: Four months ago around April, ah--" (Defense TrialExhibit 24, page 2) The records of the Lake City Fire Department reflect that Anderson worked on February 9, 1978, starting at8: OO a.m.
Subsequent to his initial report to Dekle, Anderson was told that the day the Leach girl disappeared was on February 9, (R. 13980), and then reports it asa "date remembered" during the Burnette hypnotic episode (Defense Trial.Exhibit 25, page 11).
The factthatit took Anderson almost six months to "realize" what he thought he saw casts grave doubt that he actually saw any "abduction".
During this time he was exposed to tremendous media attention about the Leach girl, her disappearance, Bundy and their "suspected connection" (R. 13990- 13993). His neice looks just like the Leach girl (R. 139861, and he had seen pictures of the Leach girl in the papers and on T.V. (R. 13990) The fact that his description of the girl and the man he saw vary dramatically from his initial accounting to Dekle and his report to Burnette, as well as the glaring omissions of what he did not see, i.e., the Leach girl ' s coat, which she was wearing when last seen, and Bundyls facial hair, casts doubt that he was actually recalling anything under hypnosis.
The fact that Anderson went from man who had lot of doubt and did not want to send police on a wild goose chase, to an eyewitness who could positively identify the Leach girl as the girl being led from the Lake City Junior High School into a white van by a "man who looks a hell of a lot like Bundy", also casts grave doubt upon the reliabilityof his identification.
Compound these factswithtwototally inappropriate hypnotic episodes, and not only was the identification procedure overly suggestive, but in addition, there was an absolute contamination of the witness, C. L. Anderson.
Under the " totalityof the circumstances" doctrine announced in Neil
v. Biggers, supra, Anderson's in-court identifications of the Leach girl, Bundy, and the events should have been suppressed as totally unreliable and a violation of due process as guaranteed by the Fifth Amendment to the United States Constitution and ArticleI, Section 9, Florida Constitution.
B, Anderson's testimony should have been suppressed on the basis that hypnosis contaminated his testimony and made his testimony totally unreliable.
7 he defense contends that the state ' s evidence against Bundy, without the testimony of Anderson, would have been a series of meaningless incidents.
The fibers, the Parmenter and Farhat encounters, Bundyls being at the Lake City holiday Inn on February 8, 1978, would have had little impact without the critical eyewitness who "actually saw" the Leach girl, Bundy and a white van together. It was Anderson's testimony that brought these incidents together and shrouded them with an inference of guilt.
Some six months after the "abduction, and a week after Bundyls Indictment, Anderson sees Bundy'sprofile (where have we heard that before?) on television. This triggers a "recollection" that he "may have seen this guy before". He reports that he had some nagging doubts that "he may have seen something". Had he been left alone to ponder on his independant recollection, the defense would have only had to contend with, and could only have attacked, the credibilityof his testimony.
However, the state, in their zeal to enhance the recollection of this vague, doubtful and unsure, but necessarily vital potential eyewitness, sought, without benefitof any scientific expertise or advice, to have him hypnotized.
Rather than proceeding with caution in this area of possible contamination of a possible eyewitness, the state immediately employed the services of J two social workers whose expertise and experience in the use of therapeutic hypnosis was limited, at best, and whose expertise and experience in the use of forensic hypnosis was non-existent.
As stated earlier, at the timeof the suppression hearing, the greater weight of legal authority was that the hypnotizing of a witness went to the credibility of the witness and not to the admissibility of his testimony. Although the defense presented uncontroverted scientific testimony that:
(a) Due to the lapse oftimefrom when the event occurred and the time Anderson was hypnotized, and because of the information received by him during the intervening time, Anderson should never have been hypnotized in the first place; and (b) The hypnotic procedures employed by Keene and Burnette were so inappropriate and violative of the accepted protocols for utilizing forensic hypnosis that they created a high risk of confabulation; and c) That Anderson's testimony was unreliable;
the court ruled based upon the greater weight of the existing legal authority.
the only legal authority relied upon by the defense was Judge Wedemeyer's opinion in Wisconsin v. White, supra.
Since that timea number of jurisdictions have taken a more enlightened look at the use and misuse of hypnosis in the forensic setting. Undersigned counsel will not attempt, in this brief, to quote the scientific literature and expert testimony relied upon by courts in this new trend of judicial attitude toward hypnosis. The decisions to be herein after discussed and relied upon by the defense contain lengthy quotes from the scientific literature, and any restatement herein would be duplicitious and time consuming. Suffice it to say, the scientific literature and expert testimony relied upon in these decisions handed down since the suppression hearing in the instant case are consistent with the unchallenged expert testimony and opinions of Drs. Kuypers and Kline given at the suppression hearing, and the affidavit of Martin, Orne, Ph. D., and the opinion of Judge Wedemeyer in Wisconsin v. White, supra.
In State. Mack, 294 N.W. 2d 764, the Minnesota Supreme Court addressed the issue as one of first impression. The record before the Mack court contained the opinions of no less than five experts in hypnosis and memory retrieval, including Dr. Martin. Orne. The Mack court relied heavily on the affidavitof Dr. Orne, which was attached to the suppression motion filed by defense in the instant case. The question certifiedto the Mack court at 767 was:
"...whether a previously hypnotized witness may testify ina criminal proceeding concerning the subject matter addressed at the pretrial hypnotic interview".
The Mack court, based upon the scientific data presented, elected to now going to the admissibility of the witnesses' testimony view the issue as - and otto its credibility.
The court adopted the proposition advanced by the defense that the doubtful reliability of hypnosis prompted recollection raised an admissibility question which should be governed by the standards announced in Frye. United States, 293 F. 1013 (D.C. Cir. 1923):
"Under the Frye rule; the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where ex - perts in the field widely share the view that the results are scientifically reliable as accurate. Although hypnotically adduced 'memory' is not strictly analogous to the results of mechanical testing, we are persuaded that the Frye rule is equally applicable in this context, where the best expert testimony indicates that no expert can determine whether memory retrieved by hypnosis, or any partofthat memory, is truth, false hood or confabulation, fill - ing of gaps with fantasy. Such results are not scientifically reliable as accurate." Mack, at 768.
Although the Mack court echoed the fears of Dr. Orne that:
"... a case-by-case decision on the admissibility question would be prohibitively expensive, and reveals the difficulty of getting experts qualified totestify about hypnosis as an investigative rather than a therapeutic tool.", the court, in the opinion of undersigned counsel, stopped short of adopting an "inadmissible, per se,'" rule. The rule adopted by the Mack court was "... a witness whose memory has been Revived' under hypnosis ordinarily must notbepermittedtotestify ina criminal proceeding to matters which. he or she I re membered I under hypnosis.It (emphasis supp Lied) Mack, at 771.
In early 1981, the Arizona Supreme Court handed down its decision in State. Mena, 128 Ariz. 226, 624 P.2d, 1247 (1981).
In Mena, the court acknowledged, as the defense was compelled to do in this case, that:
"Few reported cases have addressed the issue of admissibilityof testimony offered by witnesses who have undergone hypnosis in an attempt to increase their memories concerning events about which they may testify most...
courts which have considered the question have concluded that prior hypnosis neither renders a witness incompetent nor renders a witness' testimony inadmissible." Mena, at 1277.
The court then went on tocite virtually every case cited by the state in itstrialbrief in opposition to the motion to suppress. In its brief, the state correctly recognized and cited Harding. State, S. Md. App. 230, A2d 302 (19681, as the earliest case deciding the precise question in issue here.
In addressing the rationale of Harding, the Mena court stated that the Harding court "handled the admissibility question cursorily, relying solely on the witness' declaration that she was testifying from her own recollection."
Mena, at 1227.
The Mena court went on to say:
"None of the early cases following Harding which approved the admission of testimony from previously hypnotized witnesses contain any analysis of the effectsof hypnosis or even acknowledge its power to distort memory...'I Mena, at 1278.
"Accepting a witness' statement that he istestify - ing from his own recollection requires the assumption that the witness is capable of making a determination that what he perceives as his recollection actually came from his prior observations as opposed to impressions planted in his rnemq'ry through- hypnosis.
Such an assumption is contrary to the opinion held by many authorities that witness will recall memories fabricated under hypnosis as his own recollection and will be unable to distinguish his true memories from pseudo memories i mp Wanted du ring hypnosis.I' Mena, at 1278.
"The faith which the above courts placed in the power of cross-examination also seems misplaced. One article claims that ' the subsequent opportunity for Cross-examination at the trial is virtually ineffective asa means of assuring no false suggestions have been implanted' II. Mena, at 1278 (Citing Spector and Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible? 38 Ohio St. L.J. 567 (1977) In adopting an inadmissible, per se, rule, the Mena court based its decision on two criteria: First, that:
"The determination ofguilt or innocence of an accused should not depend on the unknown consequences of a procedure concededly used for the purpose of changing in some way a witness' memory. Therefore, until hypnosis gains general acceptance in the fields of medicine and psychiatry asa method by which memories are accurately improved without undue change or distortions, delusion or fantasy, we feel that testimony of witnesses which has been tainted by hypnosis should be excluded in criminal cases." Mena at 1279.
This is a restatement of the Frye rule adopted in Mack, although th Menacourt does notciteFrye by name.
The second criteria established in Mena was:
" Until the general scientific reliability of hypnotism as an effective and accurate memory enhancer has been established and/or the barriers which it raises to cross examination are somehow overcome, we think the confrontation clause of the Sixth Amendment of the United States Constitution requires an exception too.R.S. Sec.
13-3989 for hypnotically tainted testimony."
Mena, at 1280.
A.R.S. Sec. 13-3989 is Arizona'sstatute which governs the general admissibility of eyewitness' testimony.
While the first criteria announced in Mena was inherent in the argument of the defense at the suppression hearing below, the second criteria was specifically argued to the court, but without success.
The Arizona Supreme C, ourt again addressed the issue in State ex rel-, Collins v, Superior Court and Silva, 132 Ariz. 180, 644 P.2d (1982). In its oriyinzl opinion, the Collins court reafiirmedits decision in Mena. A motion for rehearing was granted and there was a replacement of a Justice on the original court.
Ina supplemental opinion, filed on May 4, 1982, the newly composed Court modified its original "inadmissible per sell rule and added the exception that "hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled priorto hypnosis." Collins, at 1295.
The Collins opinion contains mostof the relevent excerpts from the scientific community on the subject.
The Justice who authored the original opinion in Collins also wrote a very cogent opinion concurring in part and dissenting in part in the supplemental opinion. In his opinion, Vice Justice Gordon expresses great fear in allowing a hypnotized witness totestify as to his recall prior to hypnosis.
In State. Hurd, 86 N.J. 525, 432 A2d 86 (1981), the Supreme Court ofNew Jersey viewed the question in different light. The Court rejected the rigid Frye rule adopted in Mack and Mena. IT found that " the purpose of using hypnosis is not to obtain the truth, asa polygraph or ' truth serum' is supposed to do". Hurd, at 92. Instead, it found that hypnosis can legitimately be employed asa means of overcoming amnesia and restoring the memory of a witness.
"In, light of this purpose, hypnosis can be considered reasonably reliable ifit is able to yield recollections as accurate as those of an ordinary witness, which likewise areoftenhistorically inaccurate. Based on the evidence submittedattrial, we are satisfied thatthe use of hypnosis torefreshmemory satisfies the Frye standard in certain instances. IF it is conducted properly and used only in appropriate cases, hypnosis is generally accepted asa reasonably reliablemethodof restoring a person'smemory. Consequently, hypnotically-induced testimony may be admissible ifthe proponent of thetestimonycan demonstrate thatthe use of hypnosis in the particular case was a reasonably reliable means of restoring memory comparable tonormalrecall in its accuracy."
Hurd, at 92.
Having determined thatthe use of hypnosis toaida witness met the Frye rule uncertain instances, the Hurd court went on toquote elaborately from the testimonyofDr. Orne, one of Hurd's defense experts. Orne ' testimony in Hurd, and his procedural guidelines which the Hurd court adopted, were consistent with his affidavitsubmittedtothetrialcourt below, and the testimony of Drs. Kuypers and Kline.
The Hurd court adopted the following rule:
"Whenever a party in acriminaltrial seeks tointro - duced witness who has undergone hypnosis tore fresh his memory, thepartymustinform his opponent of his intention and provide him with the recording of the session and otherpertinentmaterial. The trial court will then rule on theadmissibilityofthetesti - mony eitheratapretrial hearing orata hearing out ofthe jury ' s presence. In reviewing the admissibility ofhypnotically refreshed testimony, thetrialcourt should evaluate boththekindofmemory loss that hypnosis was used to restore and the specific technique employed, based on expert testimony presented by the parties. The objectofthis review is otto determine whether theprofferedtestimonyisaccurate, but instead whether the use of hypnosis and the pro - cedure followed in the particular case was a reasonably reliable means of restoring the witness' memory."
The Hurd courtthenwent on to elaborate how thetrialcourt should implement this rule. First, thecourt should determine whether hypnosis should have been used onthe witness inthefirstplace, and once it is deter - mined whether the witness was one who would yield normal recall with properly administered hypnosis, then determine whether the procedures followed were reasonably reliable. Hurd, at 95 and 96.
The Hurd court then went on to adopt the six procedural safeguards set forth in the Orne affidavit and mandated compliance with these safeguards by the proponent of testimony enhanced by hypnosis. IT further casts the burden of proof on the proponent of such evidence to establish admissibility by clear and convincing proof.
The court justified where it was placing the burden by stating:
"...We recognize that this standard places a heavy burden upon the use of hypnosis for criminal trial purposes. This burden is justified by the potential abuse of hypnosis, the genuine likelihood of suggestiveness and error, and the consequent risk of injustice. Hypnotically refreshed testimony must not be used where it is not reasonably likely to be accurate evidence. The burden of proof we adopt here will assure strict compliance with the procedural guidelines set forth in this opinion. It will also limit the admissibility of this kind of evidence to those cases where a party can convincingly demonstrate that hypnosis was a reasonably reliable means of reviving memory comparable in its accuracy to normal recall." Hurd, at 97.
The facts in Commonwealth v. Nazarovitch, 436 A2d 170 (Pa. 1981) are similar to the case at bar in that they involve the hypnotically refreshed recollection of the purported witness toacrime as opposed to the victim.
Three years to the date of the murder of twelve year old girl, Pamela Wilfong walked into the Cambridge Police Station and told the Chief that she was having nightmares about the girl and that she might know something about the murder. Prior tothat, Mrs. Wilfong was questioned several times about the murder, but provided no significant information. Wilfong was hypnotized on four separate occasions and on the basis of her hypnotically m refreshed recollections, Nazarovitch and others were charged with the murder.
Nazarovitch made apretrialmotionto suppress Wilfong's testimony, which was granted.
The Appeal by the Stateto the Pennsylvania Supreme Court resulted in the affirmanceof the trial court.
The Nazarovitch court opted to follow the rationale found in Mack and Mena.
"...the Hurd court ' s rationale that hypnotically refreshed recollection might as well be admissible since ordinary eyewitness accounts are also vulnerable terror and inaccuracies does not do full justice tothefactthat the traditional guarantees of trustworthiness as well as the jury ' sabilityto view the demeanor of the wit - ness are wholly ineffective to reveal distortions of memory induced by the hypnotic process...
The probative worth ofthe hypnotically adduced evidence cannot overcome the serious and fundamental handicaps inherent therein."
Nazarovitch, at 177.
The court went on to say:
"While we do not want to establish a per se rule of inadmissibility at this time, we will not permit the introduction of hypnotically refreshed testimony until we are presented with more conclusive proof than has been offeredto date of the reliabilityof hypnotically retrieved memory."
Nazarovitch, at 178.
In People. Shirley, 31 Cal. 2d 18, 641 P2d 775 (1982), the California Supreme Court rejected the liberal application of the Frye rule, as applied in Hurd, supra, and opted to follow the Mack, supra, and Nazarovitch rationale:
" Aftercareful consideration, we decline to join in foregoing effortto develop a set of 'safeguards' sufficientto avoid the risks inherent in admitting hypnotically induced testimony. To begin with, we are not persuaded that the requirements adopted in Hurd and other cases will in fact forestall each of the dangers at which they are directed. Next, we observe that certain dangers of hypnosis are not even addressed by the Hurd requirements: virtually allof those rules are designed to prevent the hypnotist from exploiting the suggestibility of the subject; none will directly avoid the additional risks, recognized elsewhere in Hurd, that the subject (I) will lose his critical judgment and begin tocredit 'memories' that were formerly viewed as unreliable
(2) will confuse actual recall with confabulation and will be unable to distinguish between the two, and
(3) will exhibit an unwarranted confidence in the validity of his ensuing recollect ion.
Lastly, even if requirements could be devised that were adequate in theory, we have grave doubts that they could be administered in practice without injecting undue delay and confusion into the judicial process.
...w e join instead a growing number of courts that have abandoned any pretense of devising workable 'safeguards' and have simply held that hypnotically induced testimony is so widely viewed as unreliable that it is inadmissible under the Frye test."
Shirley, at 787.
Ina footnote appearing in Shirley, at 786, the California Court makes note oftwo New York trial courts having adopted an even more elaborate set of safeguards than adopted in Hurd, supra. People, Lewis (County Ct., 1980) 103 Misc. 2d 881, 427 N.Y.S. 2d 177; People. McDowelI, (County Ct., 1980 103 Mix. 2d 831, 427 N.Y.S. 2d 181. The Shirley court, supra, notes that these two cases were "derived from an unreported but widely cited ruling of a Wisconsin trial court in 1979". Shirley, at 786. That ruling was Wisconsin v. White, supra, citedto the trial court below.
The standard announced in Frye has been recognized in Florida.
Coppolino v. State, 223 So2d 68 (Fla. 2d DCA, 1968) citing Kaminski v. State, 63 So2d 339 (Fla. 1953):
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages isdifficult 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 well recognized scientific principle or discovery, the thing from which the deduction is made must be suffi - ciently established to have gained general acceptance in this particular field in which it belongs." Frye, at 1014 As we have seen, the contemporary and almost universal trend of authorityisto exclude the testimony of witness' whose recall has been attemptedto be enhanced by hypnosis. The dangers inherent in the use of hypnosis in the forensic setting are now being recognized by the courts which have faced the issue in the recent past.
The fact that hypnosis was used extensively in this case and on at least one "eyewitness1 in the Chi Omega case and the fact that hypnosis is the current vogue amongst investigators in criminal cases throughout the State of Florida, gives rise to the opportunity for the courtto make its position known on the subject. The cases relied upon by the State initsbrief below are archaic in their insight and do not address the real problem. IT is time for the State of Florida togetin step with the current trend of legal authority.
Under the Frye rule, Anderson should never have been allowed to testify. Even under the guidelines set forthin Hurd, supra, Anderson's testimony would have been excluded, As both Drs. Kuypers and Klinetestified, he would not have passed muster on the threshold question of being a likely candidate for hypnosis. Too much time had elapsed between the event and the hypnotic episode. He had been exposed to too much information after the event to make it reasonably likely that his recall under hypnosis would be comparable in accuracy to normal human memory.
And finally, the inappropriate manner in which Keene and Burnette conducted the hypnotic episodes on Anderson created the very strong likelihood that his testimony attrial would be fraught with confabulation.
Bundy should be granted a new trial, exclusive of the testimony of
C. L. Anderson, and any other witness who has been hypnotized.
11. THE TRIAL COURT ERRED IN
DENYING THE MOTION TO LIMIT
DEATH QUALIFICATION OF Jury ALLOWING Sway QUALIFICATION;
AND EXCUSING FOR CAUSE TEE
JURORS Opposed TO THE DEATH
PENALTY NOTWITHSTANDING
THEIR ABILITY TO WET GI IL T
OR INNOCENCE.
A, The Witherspoon Rule must be considered in light of critical differences in sentencing procedures between Illinois and Florida, tlhe standard most frequently referred toforthe exclusion of venire persons because of their views on the death penalty was developed by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510 (1968).
The language oftencitedfrom Witherspoon spells out the following rule:
"We repeat, however, that nothing we say today bears upon the power ofa State to execute a defendant sentenced to death by a jury from which the only veniremen who were in factex - cluded for cause were those who made unmistakably clear (I) that they would automatically vote against the imposition ofcapital punishment without regard to any evidence that might be developed at the trialof the case before them, or (2) thattheirattitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt".
The trial judge in the present case relied upon this rule as it was adopted in Witt v. State, 342, So2d, 497. (H. 288) " WE repeat, however, that nothing we say today bears upon the power of the State to execute a defendant sentenced to death by a jury *. I ' Witherspoon, at 523, n. 21. (Emphasis supplied) The language from Witherspoon reveals acriticalfactor made explicit throughout the case, the implicit toits rationale: the jury in Witherspoon had the final power to sentence the defendant, and did infact, sentence himto death. Time and time again the court in Witherspoon refers to the jury ' s authority to sentence. See Wither- The jury ' s penalty determination in Illinois in 1960 was binding upon the trial judge, although the law was changed in 1967, topermit the trial judge torejecta jury determination of death, Witherspoon, at 518 n. 12.
The law governing capital cases in Illinois today allows fara binding jury life verdict, unless the jury unanimously agrees on death. Illinois Ann, Stats.
The death penalty sentencing statute in Florida differ significantly from the one that gave rise to Witherspoon, as well as the one in Illinois today. See 1921.141, Florida Statutes (Supp. 1976-77). In finding Florida ' s current death penalty statute unconstitutional, the United States Supreme Court in Proffitt v, Florida, 428 U. S. 242 (1976) said:
"The sentencing authority in Florida, the trial judge, is directed to weigh eight aggravating factors against seven mitigating factors to determine whether the death penalty should be imposed." Proffitt, at 251.
(Emphasis supplied) Since the Florida capital jury in Bundy's case did not have the power to sentence him, as did the jury which sentenced Witherspoon, the first part of the Witherspoon rule, which allows for the exclusion of those venire persons who "would automatically vote against the imposition of capital punishment" should not have been invoked at Bundy'strial. The trial judge, however, did employ it and did excuse for cause the five aforementioned venire persons on that ground (See Statement of Facts, pp 29-31) In so doing, the trial judge violated Bundy's Sixth and Fourteenth Amendment rights toafair cross section of the community represented on the jury, as guaranteed by the United States Constitution.
B. Florida has no significant interest in excluding from capital juries venire persons who would not vote for the death penalty, Before addressing the violation of Bundy'srighttoa representative jury, it is necessary to take up the question of state interest, as it relates to the exclusion of venire persons.
Ina key fair-cross-section case, Duren v, Missouri, 439 U.S. 357 (19791, the United States Supreme Court held that state must show:
IT... a significant state interest [ is ] manifestly and primarily advanced by those aspects of the jury selection process that result in the disproportionate exclusion of a distinctive group."
Duren, at 367-368.
Thus, "the state bears the burden of justifying this infringement by showing attain ment ofa fair-cross-section to be incompatible witha significant state interest". Duren, at 368.
Reflecting the will of the people, the Florida Legislature passed into law a statute which made death an optional punishment for first degree murder. Fia venire person's opposition to the death penalty would cause him or her to be unable to impartially determine guilt, then Appellant concedes, due to the requirement of a unanimous verdict ofguilt, a single such juror could unreasonably nullify the will of the people of Florida, the Legislature, his or her fellow jurors, and the trial judge. Under these circumstances, the significant state interest at stake is clear and such a venire person would be properly excused for cause in accordance with Witherspoon, supra.
It is important to note at this point that Florida statute law does cover such situations involving the exclusion of persons in capital cases.
Florida Statute 8913.13 states simply: " A person who has beliefs which preclude him from finding a defendant guilty of an offense punishable by 0 death shall note qualified asa juror ina capital case."
Of greater importance is what 1913.13, Florida Statute, does not cover.
It does not authorize Florida trial judges to exclude for cause a person whose beliefs would preclude him from voting for the death penalty.
Since Florida does not empower the jury ina capital case to sentence a defendant tolife or death, it does not have a significant state interest in excusing for cause venire persons solely because they state they cannot vote forth death penalty under any circumstance. Such exclusions are not relevant to venire persons' abilities toimpartially render a verdict ofguilt, and they are not relevant to sentencing, since the ultimate sentencing in capital cases is the sole province of the trial judge. IF venire persons who would not vote to impose the death penalty were actually allowed tosit on capital juries in Florida, assuming they indicated an abilityto determine guiltor innocence, their presence would notnullify, prevent or otherwise frustrateFlorida ' s significant interest in imposing death sentences.
C, Florida is the exception to national practice in capital jury sentencing.
Since the decision in Furman v. Georgia, 408 US. 349 (1972), thirty - seven states have adopted death penalty statutes. Thirty - twoof those states have adopted "guided discretion" death penalty statutes allowing for jury participationin the penalty phase. (Note: New Jersey recently became the thirty - eighth state to adopt the death penalty. Defendant does not yet have any information on the sentencing procedure under the new statute) See Appendix Aforlistofall statutes.
Of the thirty - two states, only Florida, Indiana and Alabama permit a judge imposed death sentences after jury decisions for life, ando f these, only Florida allows for an advisory death verdict upon a mere majority vote.
In the remaining twenty-nine states, a jury ' s verdict fora life sentence is binding. In five states, the judge alone sentences. See Appendix A.
The twenty-nine states with jury participation in sentencing and binding jury life verdicts also require that jury verdict forth death penalty be unanimous. Clearly, these twenty-nine states, unlike Florida, have a significant state interest, pursuant to Duren, supra, in excluding for cause venire persons who would not vote for the death penalty under any circus - stance.
IT is Bundy's contention that the Florida death sentencing procedure applied tohim is in actuality most like the ones in Arizona, Idaho, Montana and Nebraska, where the penalty determination is made by the judge alone.
In these four states, unlike Florida, a venire person is only voir dired concerning the death penalty in relation to how his or her feelings on that issue would affect the abilityto determine guilt or innocence. State. Anderson, 296 N.W. 2d, 440 (1980); State. Clark, 616 P, 2d, 888 (1980); State.
Creeeh, 589 P, 2d, 114 (1979); State. Hallam, 575 P. 2d, 55 (1978); and State, Ramirez, 569 P. 2d, 201 (1977).
The precedent here, which is ignored in Florida, is that venire persons in these states are not excluded for cause solely because their feelings about the death penalty would cause themnotto impose the death penalty in the event ofaguilty verdict.
It is Bundy's position that the limited application of Witherspoon in the four judge-sentencing states also should have been the law during jury selection in his triai. Florida ' s departure from national practice in sentencing in capital cases only underscores the reason why the Witherspoon rule should note applied in Florida as it is in the vast majorityof states where the jury actually sentences.
0. D.@efant was denied a representat ive c ross-sect ion of the community on his capital jury, The improper application ofthe Witherspoon rule in this case serves to highlight an even more fundamental error: The total exclusion of persons opposed tothe death penalty in any way from his jury. As has been said, no one on Bundy's jury voiced any objection to the death penalty. It has been shown that five prospective jurors, who could have impartially determined guilt or innocence, were excused for cause by the trial judge because they said they would not have voted for an advisory death verdict. Furthermore, the state cannot carry the burden, as stated in Duren, supra, that significant state interest was served by excluding those five persons.
Ina leading United States Supreme Court case involving the rightto a fair-cross-section, Taylor v. Louisiana, 419 US. 522 (1975), the court said:
"We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced the requirement has solid foundation Restricting jury service toonly special groups or excluding identifiable segment playing minor roles in the community cannot be squared with the constitutional concept of jury trial...[T]he broad representative characterof the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing inthe administration of justice is a phase of civic responsibility.' Thiel v.
Southern Pacific Co., 328 US. 217, 227 (1946) (Frankfurter, J., d issei ti ng) ".
Taylor, at 530-531.
In establishing a fair-cross-section violation, it need not be proven that the exclusion of an identifiable group or segment resulted in actual harm.
In Ballard v. United States, 329 U.S. 187 (1946), two important themes emerge.
First, it is impermissible toeliminateasignificant prospective jurorfromthe jury pool. Second, it is not necessary in challenging an exclusionary practice to show that those who are removed would act differently: Prejudice is inherent in the removal fromthecourtroomofanoutlook, apointof view.
In Ballard, supra, thecourt said, at 194:
"To insulate thecourtroomfromeither (men or women) may not ina given case make an iotaofdifference. Yet favor, distinct quality is lost ifeither sex is excluded. The exclusion of one may indeed make the jury less representative of thecommunitythan would betrueifan economic orracial group were excluded."
This view is reflected in another cross-section case, Peters v, Kiff, 407 US. 493 (1972), which notedthatillegal jury selection procedures " create the appearance of bias inthe decision of individual cases, and they increase the risk factual bias as well". Peters, at 502.
The line of cases represented by Duren supplies aframeworkwithin whichto apply theconstitutionprinciplesof Taylor, Ballard, Peters, and other cases. Duren qualifies therighttoa fair-cross-section by first requiringthata defendant makeouta " prima facie " showing ofa fair-cross section violation, and thenbyshiftingthe burden tothestatetojustify the infringement on the basis ofasignificantstate interest.
Bundy submits thattheconstitutionalprinciples embodied in theright too fair-cross-section representation, summarized above, are relevant tothe exclusion of persons opposed tothedeathpenaltyfromdeathpenalty cases in general and in his case in particular.
To begin with, Bundy believes thathe has made a " prima facie " showing that persons opposed tothedeathpenalty were disproportionately excluded from his jury.
Next, Bundy holds that there is no moreidentifiableor cognizable segment or class in the community when it comes to "playing major role" in the debate over thedeathpenalty than those opposed to it. Forthis reason, their presence on capital juries is indispensible to give such juries a "representative character". Just as in Taylor and Ballard, supra, where it came down to excluding one ofthe two sees from juries: women; so it was inthe present case that Bundy witnessed the exclusion from his jury of one of thetwo groups vital tothe dialogue oncapital punishment: those opposed tocapital punishment.
When only those in favor ofthe death penalty areallowedtositon death penalty cases, there is no way to avoid " the appearance of bias", and " the risk factual bias" dec reed in Peters, supra.
Bundy asks thisCourttotakejudicialnoticethatwhile those who oppose capital punishment, admittedly, are in theminority, they area substantial and often vocal minority, and thatthenatureoftheentire death penalty issue in our society would be vastly different without this minority. Moreover, they are as substantial aminority as, say, Republican, Methodists, Blacks, and unemployed workers; groups whicharenot excluded from service on juries in Florida. Polling data suggests that those opposed tothedeathpenaltyconstitutebetweentwenty and thirtypercentofthe population.
Forth purpose ofa fair-cross-section analysis ofadeathpenalty case jury, those opposed tothatpenaltyareapreeminently cognizable class.
Certainly, Bundy recognizes thattherearelimitations on the degree towhichcapital juries inFlorida can, in the words of Taylor, " reflect the various distinctive groups in the population". Taylor, at 538. However! when it comes tocapital cases, those opposed tothedeathpenaltyarenot an insignificant albeit distinctive group and care should be taken to insure their presence on capital juries "as a hedge against the over zealous or mistaken prosecutor...", Taylor, at 530.
Defendant also realizes that significant state interests can legitimately, in the words of Duren, 'result in the disproportionate exclusion of a distinctive group". Duren, at 368. However, in the instant case, because:
(1) The jury didn ' t have the power to sentence Appellant;
(2) Persons opposed to the death penalty were erroneously excluded for cause because whether ornot such persons voted foror against the death penalty bore no significant impact upon the penalty ultimately imposed by the court;
(3) There was, therefore, no significant state interest supporting said exclusions; and (4) No one opposed to the death penalty sat on Bundy ' s jury.
Bundy IS Sixth and Fourteenth Amendment rights as guaranteed under the United States Constitution too fair-cross-section representation on his jury was violated.
Accordingly, the conviction should be reversed because it was produced by an unconstitutionally selected jury, and a new trial granted with instructions toprohibitorat least limit death qualificationof the jury.
Ill. THE TRIAL COURT ERRED IN
DENYING DEFENDANT'SMOTION
FOR CHANGE OF VENUE OR
ABATEMENT QF PROSECUTE0N
The civil rights and Liberties guaranteed by the State and Federal Constitutions are not discretionary. Bundy was due a fair trial before an impartial jury, as delineated by ArticleI, Section 16, Constitution of the State of Florida, and the Sixth and Fourteenth Amendments to the United States Constitution. Bundy was guaranteed aright to due process by Article 1, Section 9, Constitution of the State of Florida, and the Fifth and Fourteenth Amendments to the United States Constitution. The language of these sections is clear and unequivocal. Therefore, the court had no power to remote these rights from "absolute" to "variable" in their application.
It was error to avoid any possibility in which the constitutional rights guaranteed could be secured intact, which the court did by denying the defense motion.
In all fairness, the court was faced witha collision between the First Amendment and Fifth and Sixth Amendments of the United States Constitution. When this conflict develops, the court must decide which right must give way to the other. On one hand, the rightof the press to investigate and publish information without restraint is stored to our sense of ordered liberties; on the other hand, the right of the individual to have afair and impartial trial is the greatest restraint cn government oppression of the individual. 'When the rightof the press to publish information so drastically alters the right of an individual to have afair trial, the court must decide to harm one party in order toprotect the other. The court may initially subjugate the First Amendment right of the press to the individual's Sixth Amendment right toafair and impartial jury, but any restraint on the press willbestrictly scrutinized and mostlikelywillbe declared unconstitutional.
The court need only consider what harm each group would suffer. If thecourt restrained the press, thus technicallyviolatingtheFirst Amendment, the press and public possibly a vast number of people) lose aquantityof information that may interest them. If thecourtletsthe press run rampant, the resulting negative prejudicial impact removes any possibility tha tan accused can obtain, afairtria before an impartial jury. The resulting loss to the accused is much more serious; he loses his fortune, his freedom, or his life, When, in capital cases particularly, the choice is an impairmentoftheright ofthe press ortheunfairtakingofadefendant ' slife, the choice should be very clear; the press mustbe restrained in some way, directlyorindirectly.
The most burdensome way toobtainthe desired result in the instant case was torestrictthe press directly, toprohibitthemfrom publishing any information about Bundy atall, oruntilalater date. This choice is too restrictive and would not stand upon review. A less burdensome manner to achieve the desired result was togranttheMotionto Change Venue orAbate the Prosecution (R, 13470-13479). A change of venue would have removed Bundy from the physical siteofthemost pervasive publicity, whilean abatementof prosecution would have removed the urgency ofthe press to publish!the information. It is unlikely thatthe press could have kept up the rate and quantityofinformationthat it was publishing about Bundy, had thecourt abated the prosecution fora substantial periodoftime.
The least burdensome manner of dealing withtheproblem was to adopt amoreliberalattitudetowardthe defense challenges for cause ofcertain jurors. Alternatively, because thepretrialpublicity was prejudicialto the defense and nottothestate, additional peremptory challenges could have been granted tothe defense, as requested in anoralmotionduring voir dire (R. 3253- 3258). IF the defense had been able to exercise additional peremptory challenges, it is more likely that an impartial jury (those without substantial knowledge of Bundy) could have been selected.
When other jurisdictions have been faced with this conflict between constitutional rights, they have triedto choose the least restrictive measure to restrain the press, thereby favoring the righttoafairtrialof the defendant. Because the Sixth Amendment to the United States Constitution guarantees a " trial by an impartial jury", and the due process clause of the Fourteenth Amendment extend this rightto state criminal proceedings, there is an infringement of rights when the pretrial publicity permeates and infects a community so that the guaranteed " impartialjuryf1 is an impossibility.
Duncan v. Louisiana, 391 U.S. 145-149 (1968); Apodaca v - Oregon, 406 US.
In the vast majorityofcriminal prosecutions, pretrial publicity is manage able and, therefore, does not threaten this constitutional rightto an impartial jury. Indeed, in some cases, the court has held thatatrial was fairin spite of widespread publicity. Murphy v. Florida, 421 US. 794, 803 (1975); Beck v. Washington, 369 US. 541 (1962); Stroble v. California, 343 However, in the instant case, as well as those few other cases where the crime is so "sensational" or "heinous" tha tit receives an enormous amount of pretrial publicity, tension develops between the defendant'srightto an impartial jury and the rights of others to the First Amendment rights of free speech and press. In lrvin v. Dowd, 366 US. 717 (1961), an Indiana court sentenced the petitionerto death for the murder of six persons. Pretrial news coverage had been incriminating, pervasive and hostile, Petitioner ' s counsel had secured a change of venue, but only to the next county. Of the jury panel of 430 persons, almost ninety percent had some opinion as to the Petitioner'sguilt, ranging in intensity from near suspicion to absolute certainty. Eightof the twelve who finally served admitted that they believed tha the Petitioner was guilty, but felt they could render an impartial verdict nonetheless. Holding that the Petitioner was not accorded a fair and impartial trial, the Supreme Court unanimously vacated his conviction and remanded his case to the district court, stating:
" With his lifeat stake, it is not requiring too much that this Petitioner be tried in an atrnosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony to possession ofabelief in his guilt." Irvin, at 730.
In Rideau v. Louisiana, 373 U.S. 723 (1963), astatecourt convicted the petitionerof murdering one of three hostage during a bank robbery. On the morning of his arrest, a videotape was made ofa twenty-minute interview between the petitioner and the Sheriff, at which time the petitioner, ina highly emotional state, confessed indetailto the bank robbery, kidnapping and murder. Noting that the filmed interview was broadcast for three days to the community frcm which the jury was chosen, the Supreme Court reversed the conviction on the following grounds:
"This spectacle, to the tens of thousands of people who saw and heard it, ina very real sense was Rideau'strial - - at which he pleaded guiltyto murder. Any subsequent court pro - ceedings ina community so pervasively exposed to such a spectacle could be but hollow forma Lit y Rideau, at 726.
Perhaps the most sensation21 case concerning the rightto an impartial jury was Sheppard V. Maxwell, 304 1J.S. 333 (1966), in which Dr. Sam Sheppard was convicted of bludgeoning his pregnant wifeto death. Virulent and incriminating pretrial publicity about the petitioner and the murder made the case a cause celebre in the community from which the jury was selected.
After Sheppard had spent twelve years in prison, the Supreme Court ordered a new trial and held that the massive, pervasive and prejudicial publicity had prevented a fair trial. Sheppard, at 363.
As the facts Show, from nearly the day Bundy was arrested until he was brought totrial, he was the constant subject of news stories, official statements by law enforcement and prosecution authorities and startling, sensational reports of prospective witness' testimony and evidence that would be presented.
As the media perpetuated the image of Bundy! it also shaped that image and gave any prospective juror the opportunity toform an advance opinion about his guilt or innocence. The "Bundy Mystique" was created and perpetuated by an aggressive press and has been cogently summarized as long ago as May 3, 1978, by Judge Charles E. Miner, Jr.:
"It is true beyond per adventure that Theodore Bundy is newsworthy. Since his arrest and incarceration on the instant charges, Bundy has understandable been the object of intense public interest, Resourceful newsgatherers have proven well equal to the task of keeping the public well informed. Virtually no aspect of Bundy's past or present life, real or imagined, has evaded media discovery, analysis and comment, Fact, speculation, characterization and impression have combined to give Theodore Bundy, wanted or not, a mystique of sorts. He enjoys (or tolerate, as the case may be) a name identification in this area of Florida at least equal tothatof Florida ' s most notable person ages." (R. 14527) It is unreasonable to assume that the judge's admonition toputthat opinion outof their minds was sufficientto counter the pervasive effects of the media coverage.
The court should have granted another change of venue, even if it questioned the grounds, for as Singer v. State, 109 So2d7 (Fla., 1959) states:
" A change of venue may sometimes inconvenience the State, yet we can see no way in which it can cause any real damage to it. On the other hand, granting a change of venue ina questionable case is certaintoeliminatea possible error and to eliminatea costly retrialifit be determined that the venue should have been changed. More important is the fact that real impairment of the right ofa defendant totrial by a fair and impartial jury can result from the failure togrant change of venue." Singer, at 14..
Other Florida cases agree with the proposition that more than a mere statement ofimpartiality is required after venire person expresses existing knowledge or opinion about the case.
In Andrews v. State, 21 Fla. 598, at 604, the court said:
"...The fact that he states thatif taken upon the jury he would give verdict according to the evidence is notof itself sufficientto overcome the effect of what he has said as to the fixed characterof his opinion...'I In Olive v. State, I5 So. 925, at 926, the court said "...[T]he statementofa juror that he can readily render verdict according to the evidence, notwithstanding an opinion entertained, will not alone render him competent ifit otherwise appears that his formed opinion is of such fixed and settled nature as not readily to yield to the evidence... I ' In Lamb v, State, 107 So. 530, at 533, the court said:
W]e believe that every juror should come to the investigation of each case free from any preconceived impression fit whatever...'I In Walsingham v. State, 1911, 61 Fla. 6 7! 56 So. 195, at 198, the court quoted with approval several statements found in cases from other jurisdictions "...'And we also think that, in criminal cases, whenever, afterafull examination, the evidence given upon a challenge leaves a reasonable doubt of the impartialityof the juror, the defendant should be given the benefit of the doubt.'
(Holtv, People, 13 Mich. 224, 227)...'I In Johnson v. Reynolds, 1929, 97 Fla. 591, 121 So. 793, 796, the court said:
"If there is a doubt as to the juror ' s Sense of fair - ness or his mental integrity, he should be excused..."
Il*..llf error ist o be committed, legit be in favor ofthe absolute impartiality and purityof the jurors'...which we interpretto mean that the mind of the proposed juror should contain no element of prejudice for or against either party ina cause to be tried before him."
The above quotations must be construed as being guides to the trial courts in exercising their discretionary power in determining the competency of jurors. They demonstrate that the goal to be sought is a jury composed of persons whose minds are freeof any preconceived opinions of the guilt or innocence of an accused, persons who can in fact give to an accused the full benefit of the presumption of innocence, persons who can because of freedom from knowledge of the cause decide it solely on the evidence submitted and the law announced at the trial.
These cases illustratethatif there is basis for any reasonable doubt as to any juror ' s possessing thatstateof mind which will enable himto render an impartial verdict based solely on the evidence submitted and the law announced at the trial he should be excused on motionofaparty, or by thecourt on its own motion.
The traditional remedy in cases such as these has been a reversal of conviction. This after - the - fact remedy is obviously not the ideal or least onerous method to solve this conflict. Conversely, pretrial measures to restrain the press, implemented to avoid a prospective reversal, run the possibilityof infringing upon those First Amendment rights that enjoy co-equal status with the righttoafairtrial by an impartial jury.
As Justice Frankfurter recognized in lrvin v. Dowd, supra, the tensions betweentheFirst and Sixth Amendments is not easily reconciled:
" Thiscourt has not yet decided thatthe fair administrationofcriminal justice mustbe subordinated to another safeguard of our constitutional systems--freedom of press, properly conceived. The court has not yet decided that while convictions mustbe reversed and miscarriages of justice result because the minds of jurors orpotential jurors were poisoned, the poisoner is constitutionally protected in plying his trade." lrvin v. Dowd, at 730.
Other cases also have had convictions reversed because ofprejudicial publicity that had affected the defendant ' srighttotrialby an impartial jury. See Estes v, Texas, 381 U.S. 532 (1965); Janko v. United States, 366 US. 716 (1961); Marshall v, United States, 360 US. 310 (1959).
Although none ofthe court ' s previous cases on FirstAmendment guarantees involved arestrictiveorder designed toprotectadefendant ' rightto trialbyanimpartialjury, (see Nebraska Press Association v, Stuart, 96 S.Ct., 2791, 2801 (1976)), abriefexaminationofthe cases dealing with prior restraints demonstrates the harsh ness with which thecourt views the employ - mentor such measures. Over seventy years ago, thecourt in Patterson v.
Colorado, 205 U.S. 454, 462 (1907), statedthatthemain purpose ofthe constitutional provisions forfreedomof speech and press is " topreventall such previous restraints upon publications as had been practiced by other government". Patterson, at 462. See also Commonwealth v. Blanding, 20 Mass.
(3 Pick) 304, 313, 314 (1825); Republica v, Oswald, 1 Dall. 319, 325 (Penn., 1788).
In Near v. Minnesota, 283 U.S. 697, 716 (19311, facedwithaclaimof prior restraint against the press, thecourt declared astatestatute unconstitutional, emphasizing that though the protection against previous restraints is not unlimited, the exceptional natureofthelimitation has fosteredthe general conception that liberty of the press has historically meant immunity from previous restraints or censorship. Characterizing prior restraints as " the essence of censorship", the court noted that for approximately 150 years there had been an almost complete absence of attemptsto impose previous restraints upon publications relating to malfeasance of public officials, and found that fact demonstrative of the deep-seated conviction that such restraints violate constitutional rights. Near, at 71 8.
There is a presumption of invalidity upon any measure that restricted the First Amendment freedoms. This presumption must be overcome by the proponent of the measure in order to resist constitutional challenge, As the court notes in Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 559 (1975), citing Freedman v. Maryland, 380 US. 51 (1965) at 58:
"The settled rule is that system of prior restraint avoid constitutional infirmity only if it takes place under procedural safeguards to obviate the dangers of a censorship system."
However, an action that removes the cause for the publicity, and does not directly affect the publishing ofthat publicity, would not violate the First Amendment. If the court had removed the trialto another site, or abated the prosecution, the press would have been forced to lessen or end the fantastic quantity of coverage in Bundy's case. In either event, the decision otto publish would have been their own, without order from court.
As long as the court was persuaded that substantial publicity existed which precluded the empaneling of an impartial jury, the court could continue to abate the prosecution or change venue. Bundy certainly wasn't going anywhere.
The court in Nebraska Press Association v. Stuart, supra, reasoned that the trialcourt could only speculate as to the impact upon each juror of the pretrial publicity, finding that the judge would be dealing with factors "unknown or unknowable". In the instant case, the defense produced extensive area research and opinion polls that gave rise too reasonable inference that the jurors would be impermissibly tainted with pretrial publicity, and unable to render a fair and impartial verdict. Thus the factors the trial judge confronted in this case were known or know able and the judge could have based a conclusion upon them.
Second, in Nebraska Press, at 2805, the court examined measures that were less restrictive and that may have mitigate the unrestrained pretrial publicity. That court made no specific finding that any action short of restraining the press would not have protected the defendant's rights. What the court seems to say ist hat the trial judge should use the least burdensome method of restraining the press in order toeffectuateafair trial. If the court, after careful deliberation, decides that restraining order on the press is the only way to safeguard the defendant's rights, then the measure will rebut at least the presumption of invalidity and may survive the full constitutional scrutiny required. However, if the court decided that restraining order is inappropriate, it should look fora less burdensome alternative to achieve the same result.
In the instant case, it appears that the t r a1 judge did determine that less onerous measures would not deter the press but the court would not go so far as to issue a restraining order to curb the horrendous publicity given to Bundy. The judge decided not to abate the prosecution, apparently rationalizing that the publicity would regenerate whenever the trial recommended.
The judge would not change venue because he apparently thought that although the publicity was pervasive, prejudicial and a barrier to finding an impartial jury, the same type of publicity would be present at any other site the court chose.
The third consideration in Nebraska Press, supra, was whether a restraining order would have been effective. The court, in Nebraska Press, ruled that the restraining order was not proper. The order was overbroad and too vague to survive scrutiny because the order prevented the press from publishing those facts and that evidence proved or introduced in the public portions of the trial. In addition, the court noted "Our conclusion is not simply a result of assessing the adequacy of the showing made in this case;
it results in part from the problems inherent in meeting the heavy burden of demonstrating, in advance of trial, that without prior restraint a fairtrialwill be denied. The practical problems of managing and enforcing restrictive orders will always be present. In this sense, the record now before us is illustrative rather than exceptional."
Nebraska Press, at 2807.
In conclusion, the court noted that there may be a situation where prior restraint is justified, but emphasized that "the presumption against [ its ] use continued inta, ct." Nebraska Press, at 2807.
In the instant case, the, judge apparently decided that no alternative other than a restraint on the press would work and that he would not impose such a restraint. Bundy would be tried as fairly as possible, even ifthat was less than a fair trial.
If a logical progression is traced from the beginning in Lake City, to the hopelessly unfair solution in Orlando, Florida, it is clear that the court did not exhaust all the preliminary measures leading up to the imposition of the restraining order. When the court, even in despair over the failure of earlier preliminary measures, refused to grant the Motion for Change of Venue or toAate the Prosecution, it erred. The error was not de minimus, not harmless error, and not amatterof the court ' s discretion. The Motion should have been granted if the defendant was ever to receive a fair trial.
It is difficultto endorsed a policy that would result in numerous venue changes or delays in prosecution, but in the exceptional case it is necessary.
The most beneficial guidelines come from the Nebraska Press, supra, case, which held that in order to justify pretrial restriction on the press, the court must first exhaust all less burdensome alternatives. If these alternatives are not used, any restraint will not survive the scrutiny of the court.
Nebraska Press, at 2807. If the trial court uses no restraint, nor any less burdensome alternatives, the case will very probably result ina reversal. Each time that the court has reversed a conviction, it has carefully noted that, "...some course of action short ofaprior restraint would have made the critical difference". Nebraska Press, at 2807.
In the instant case, the less burdensome alternative was to grant the defense Motion for Change of Venue or Abatement of Prosecution. The least burdensome alternative was to grant the defense challenges far cause or to grant the defense additional peremptory challenges to strike those jurors who gave even the "appearance" of having formed prior opinion. By not doing so, on only the speculation of the court that it would do no good, the court missed two acceptable alternatives that would have upheld the defendant's rights and, instead, opted fora course more convenient to the court, but harmful to the defendant.
Clearly, a constitutional right cannot be denied upon only the speculation of a trial judge. IT is not discretionary; it is not variable right given only when convenient. It is absolute and must be strictly protected.
Accordingly, the defendant must be given the opportunity toafair trial before an impartial jury, Bundy's sentence must be vacated, the conviction overturned, and the case remanded to the trialcourt fora new trial.
IV. THE COURT ERRED IN NOT CON-
DUCTING AFRYETEST ON ITS OWN
MOTION WHE-CONFRONTED WTH THE
FIBER AND SHOE TRACK EVIDENCE
TESTIMONY.
When Mary Lynn Henson explained her role in the Leach case and her qualifications toperformthat role, she stated thatall of her training was in-house, by the Federal Bureau of Investigation and the Florida Department of Law Enforcement; that the only formal training she had was her general university courses in chemistry and science; that she had never been trained specifically to analyze fibers or shoe track evidence; and thatpriorto the time she handled the Leach evidence, she had never qualified as an expert in fiber analysis. (R. 5454-5458) Her lack of independant training, that is, other than at the directionof the law enforcement agencies, necessarily a created an inference of unreliability in her testimony. The nature of her testimony was opinion, and that opinion was formulated asa result of her limited training and expectations of what her results should be by the law enforcement agencies who employed her.
The trial judge, because he was charged with presiding over a trial that is fairto the defendant, as well as the state, should have conducted a Frye, supra, standard test on its own motionto determine whether the evidence to be presented, and the testimony concerning that evidence were both reliable and relevant. Further, the court should have questioned Henson furtherto substantiate its ruling that she was qualified to express what amounts too novel pseudo scientific opinion.
The standard for the admission of newly proposed scientific technique or principal inacourtof law is succinctly stated by Justice Van Orsdel in a Frye, supra, at 1014.
Fiber and shoe track evidence are not based upon well recognized scientific principles or discovery. As Henson stated, her analysis involves only the appearance, size, shape, texture, and cross section of fibers. (R. 5468, 5487-5490) And the appearance of size and shape of shoe tracks (R. 5461-5462).
There are no scientific guidelines ofsimilarityof points of comparison as in fingerprints, nor any recognized method of conducting the analysis and comparisons.
It should be apparent to the courtthata person who has received no independent orformal training, conducting an analysis using a procedure which has no roots inscientific principle, and using a procedure that cannot he verified, cannot be accepted blindly by thecourt as an expert capable of expressing scientific reasoned opinion.
The court erred in not conducting the Frye inquiry. Itisa question of fundamental fairness. When circumstantial evidence that is highly prejudicial is sought to be introduced, and the development and analysis of that evidence involves a novel, unrecognized principleof science or pseudo science, it is the duty of the courttoprotect the defendant to insure that his rights too fair trial are not compromised.
It is importantto note that Henson'sultimate conclusion, the one that went directlyto the guiltor innocence of Rundy, was tha tit was only probable that Leach, Bundy and the carpet were together in one place at one time. (R. 5499) (Emphasis supplied) Something that is only "probable" does not rise to the "beyond a reasonable doubt" standard and cannot be used asa determination ofguilt. The court ' s error in allowing this testimony was not harmless error. It was highly prejudicial error and resulted in an unfair and unjustified statement ofguilt by Henson.
The courts of the state and country are rapidly becoming the battle - ground of expert witnesses. More and more, litigant and their lawyers are attemptingto prove the ultimatefactsoftheir cases through the opinions of so-called experts in the field.
Some scientific procedures and testing methods are " tried and true".
However, such new innovations as fibers and bite-marks, and testing in the fields of chemical analysis, serology, shoe tracks, etc., have not met the test of time, nor has it been established under the Frye rule that there is any consensus in the scientific community of the general acceptability of the testing procedures or the conclusions that can be drawn from all of those tests.
This court is urged to adopt the rule the Hurd court, supra, adopted with regard to hypnosis, and require that the trial courts of this state conduct an inquiry, usa sponte, to determine whether the Frye standard has been met when such evidence is sought to be introduced and to place the burden on the proponent of the evidence.
Accordingly, the conviction in the instant case must be reversed and the case remanded fora new trial with instructions to adopt the proposed rule.
V. THE TRIAL COURT ERRED IN
DENYING DEFENDANT'SMOTION
FORA VIEW.
Its conceded that Florida law provides for the granting or denying ofa Motion for View at the discretion of the court. Dixon v, State, 143 Fla.
277, 196 So. 604 (1940); Rankin v, State, 143 So. 2d, I93 (Fla., 1962); Tompkins
v. State, 386 So. 2d 597 (Fla. 5th DCA, 1979). However, the court ' s rationale in denying the defense Motion for View evidences a clear abuse of discretion.
In denying the Motion, the court said:
Ill would seem to the Court thatall of the matters sought to be presented by view could be presented by either a stop watch timing or walking tothe areas concerned or by testimony of witnesses or by photographs and thatto transport this jury some three hundred and forty miles or whatever it is, round trip, and consuming an entire day'stime travel and as well as to the disruption of the school system when (sic) a jury going through it, and if there was a desire that they travel between classes, and the attention that would be directed by that, would not, the disadvantages would outweigh any advantage to insure to the jury being able tofind the truth in this matter, and that the truth can be presented by measurements of the distances, by photographs ofthe building and other means of protecting the physical layout, as well as the photograph that ' s already in evidence. So the motion for the views denied for the foregoing reasons."
The disadvantage cited by the court did not outweigh Bundy'srightto have the jury fully and completely understand all of the facts of the case and his right to have his defenses fairly and effectively presented. The fact that the jury would have to travel "three hundred and forty miles or whatever" (R. 5621), was not the fault of Bundy. The fact that Bundy could not get fair trial in the venue where the crime was alleged to have been committed was not the fault of Bundy. The court ' s selection of Orlando, Florida, as the trial site certainly created a logistical problem, but when weighed against Bundy'srighttoafairtrial, with his lifeat stake, the disadvantages cited by the court were de minimus.
To change venues to insure a fair trial and then to deny critical and absolutely necessary jury view because the new situs of the trial is too far away from the situs ofthe alleged crime not only defies logic, but is a denial of fundamental due process.
Their abilitytoattack the credibilityof Anderson's testimony was vitalto the defense. To deny full and complete opportunity to do so, on the basis of inconvenience or the cursory determination that there were "other adequate means" (R. 14808), was error.
As Bundy himself pointed out to the court:
" And so I think it ' s really criticalto our case, because C. L. Anderson is criticaltotheir case.
Absent a showing that. L. Anderson saw what he saw, fia jury dis believes that. L. Anderson saw what he saw (sic), then there is no evidence of kidnapping. There is no evidence to brina u about a verdict offirst degree u - - murder.
because there is no evidence of premeditation.
There is no evidence of an abduction. There is simply the factor the homicide or the death by homicidal means of Kimberly Leach. And so it ' s so very criticaltoour case thathe are able to argue to the jury, based upon their viewing of the scene, that what C. L. Anderson saw could not, is not believable under the circumstances." (R. 5594-5595) (Emphasis supplied) IT is obvious that the jury believed the testimony of C. L. Anderson, because they found Bundy guiltyof kidnapping and first degree murder.
However, it would have been patiently obvious tothe jury that. L.
Anderson could not have seen what he said he saw, in the contextof it being the abduction of Kimberly Diane Leach by 'Theodore Robert Bundy, had they been given the opportunity to personally see for themselves.
They would have seen for themselves that from locations " A " and "3" the Central Building is not visible. They would have seen for themselves that the first moment the Leach girl would have been visible to the operator of a vehicle heading west on Duval Street would have been when she rounded the corner of the portable building. They would have seen for themselves that she only had to walk seventy-seven feetfromthatpointto the safety of the auditorium, They would have seen for themselves that had she been espied by someone driving west on Duval Street, as she rounded that corner, and that someone who immediately became bent upon her abduction would have had to stop his vehicle intraffic, travel three hundred feetto the steps of the auditorium and intercept her before she could get safely inside the building.
Assuming, arguendo, thatpartof the "Bundy Mystique" was that Bundy did possess such speed and did intercept the Leach girl, it would have taken at least several minutes forhimto convince her that there was some legitimate reason for her to leave school with him. However, Anderson stated that when he first saw the girl and man, they were already at location "C" and only two vehicles had backed up behind the van in the line oftraffic on this very heavily traveled highway.
Absent hypnosis, Anderson's story would be inconceivable in the contextofit being the abduction of the Leach girl; however, through the exploitation of hypnosis, he became convinced that " what he may have seen" was infact "what he saw", and so convinced the jury. Hypnosis critically impaired the abilityof the defense totest Anderson'scredibility. Likewise, the denial of the motion fora view critically impaired the abilityof the defense to impeach Anderson's testimony in any effective manner. Still photographs and testimony may have been a "means available", butitfellfar short ofaffording Bundy his constitutional rightto an effective defense and a fair trial.
Because thecourt erroneously excluded relevant exculpatory evidence by denying theMotionforView, thecourt abused its discretionary function.
Accordingly, the conviction should be reversed and the case remanded fora new trial with instructions thatthejurybepermittedto view the situs ofthe alleged crime.
VI. THE T!3IAL COURT ERRED IN
DENYING DEFENDANT'S MOT1 0 N
IN LlMlNE TO EXCLUDE EVIDENCE
OF FLIGHT AND THE SUBSEQUENT
JURY INSTRUCT ION ON FLIGHT
BASED UPON THATEVIDENCE
A. The Evidence of Flight The basis for the " Motion in Lirnine" was that such evidence was irrelevant and immaterialto the issue ofguilt or knowledge, and to allow such testimony would be prejudicial. (2. 14920) Defense counsel argued strenuously that there were so many o her inferences that could be drawn from the two incidents of flight, that t was not probative in the Leach murder and, therefore, it was not relevant (R, 4622-4638) The court denied the Motion in Limine and allowed Daws (R. 4640) and then Lee (R. 5150) totestify as to the alleged flight by the defendant.
The trialcourt based its decision upon two cases: Batey, State, 355 So. 2d, 1271 (1st DCA, Fla. 1978); and Hargrett v, State, 255 So. 2d, 298 (3rd DCA, Fla. 1971). These cases are factually limited and should not have been the basis for the court ' s decision on this issue.
In Hargrett, the court held that because there was evidence off light, d' an instruction on flight was properly given to the jury. Hargrett, at 298-300.
The defendant in Hargrett contended that there was no evidence off light, but the court denied the contention and concluded that there was evidence of flight.
In the instant case, the defense objected to the introduction of evidence of flight itself. Clearly, this is different basis than Hargrett. This lisa question of relevancy; that the evidence should not have been admitted because it was irrelevant. Hargrett never addressed the relevancy of the evidence admitted. IT is because of this, with the apparent misleading of Hargrett by e the state and the misapplication of Hargrett by the court, that the trial court erred in basing its decision on the Motion in Limine upon Hargrett.
The court, in the instant case, also cited Batey, supra, as grounds for its decision. In Batey, ina rather brief and unelucidating Per Curiam winson, the court held that:
"The facts presented attrial were sufficientto find the existence of flight and other circus - stances indicating appellant's guilt. Therefore, the flight may be considered asa circumstance of guilt under an appropriate instruction."
Batey, at 1272. (Emphasis supplied) As in Hargrett, the Batey decision cannot be used as the basis for the decision in the instant case. In Batey, the appellate court based its decision upon the "Facts presented attrial ". Such limitation, without any showing of what the facts were renders this decision inherently suspect and not proper case to apply to the instant case. The state, once again, mislead the case and apparently misled the trial court as toits scope. Without any way to determine how extreme or how similar the fact pattern was in Batey, it was error to apply it to the instant case. Furthermore, from the language, the Batey decision was based upon the type of instruction to be given and not whether the evidence was relevant.
The Evidence ofF light was received in error. The court erroneously based its decision upon cases that could not be applied to the instant case, because they were factually different, limitedto those facts and the issue I involved was the instruction, and not the relevancy of the evidence. The trial court did not address the issues of relevancy, materiality, or prejudice, as raised by the defendant's Motion in Limine. The Motion was denied upon I improper grounds by the trial court.
Upon review by this court, the question of relevance should be reviewed as well as the proper inference to be drawn from the use of such evidence.
As the defense contended attrial, the state should not be allowed to draw only one single inference as tothe flight of a defendant when there may be amyriadof reasons to justify or explain such flight. The state argued that the defendant was free to assert those myriad reasons in an attemptto prove that the flight was not asa result of the guilty knowledge of the defendant as it related to the crimes charged in the instant case, but this is contrary toall established traditionof fairness in our system of justice.
It is unreasonable and a denial of due process to require the defendant to prove he isnotguilty, as the state suggested, and the trialcourt irnpliedly agreed, must be done in the instant case. IT is unreasonable to place this burden upon any defendant who stands innocent until proven guilty. It must be the state ' s burden to prove this guilt. The state must be required to prove thatthe flight was due tothe guilty knowledge of the defendant of the crime for which he is on trial, beyond a reasonable doubt and to the exclusion of any other explanation for the flight. Unless the state can show that the defendant had no other reason toflee, the state should not be allowed to introduce evidence of flight. To hold otherwise would mean that the state could obtain a conviction, theoretically at least, upon only inferences ofguilt, thereby short circuit ing the criminal burden of proof. The state could use the more lenient burdens ofthe civil courtof "preponderance of the evidence", or "clear and convincing evidence", and unfairly convict a defendant without ever having proved the case.
This cannot be allowed to happen. Upon review, this court must hold that:
(I) The evidence off light was not relevant;
(2) That Batey, supra, and Hargrett, supra, were not the proper basis for the decision toadmit the evidence off light; and (3) That the trialcourt erred units decision to admit the evidence of flight.
B, The Instruction of Flight IT was error for the trialcourtto give the instruction quoted above at page 32. This instruction informed the jury that the defendant must disprove the inference of guilt or it is evidence of guilt.
The FifthCircuit has held that jury instruction regarding flight, as evidence of guilt, is justified only where the jury has access to evidence which supports an inference from a general consciousness ofguilttoa specific consciousness ofguilt concerning the crime charged. United States, Myers, 550 F. 2d, 1036, 1049, 1050 (5th Cir., 1977) Cert. den. 439 US. 847.
When stopped in Pensacola, Bundy was in possession of stolen credit cards and had a stolen car (R. 5176-5177). Bundy was on the Federal 8bureau of Investigation's ten most wanted list in connection witha kidnapping conviction inUtah (RP. 28). He had escaped from Colorado. Because of Bundy's awareness of those charges against him, and the fact that he was a fugitive, an inference of consciousness ofguilt on his part for the Leach crime 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 off light such trustworthiness as it possesses. The more remote intime the alleged flight is from the commission or accusation of an offense, the greater the likelihood tha tit resulted from something other than feelings ofguilt concerning that offense.'' Myers, at 1051.
Bundy'sflightfrom the arresting officer in Pensacola occurred many days after the Leach disappearance and one month after the Chi Omega offenses he was alleged to have committed. Any inference ofguiltfrom the flightfromLee was too remote in time to be relevant to the crime charged.
Bundy's alleged flight from Daws in Tallahassee is also unreliable.
There, Daws caught an individual he claims was Bundy in thefact of another crime. IF any inference for flight may be drawn, it was the the individual fled to escape prosecution on that crime, and not the Leach crime.
The Myers, supra, decision is consistent with Florida Law. Florida cases involving jury instructions on flight as evidence ofguilt have defended the trial court ' s instruction on grounds that the defendant'sflight immediately ensued the commission of crime charged. Villagelieu v. State, 347 So. 2d, 445 (Fla.
3rd DCA, (1977); Proffitt v. State, 315 So. 2d, 461 (Fla., (1975) off ' d per curiam 428 U.S. 242; Williams v, State, 268 So. 2d, 566 (Fla. 3rd DCA, (1972); Hargrett
v. State, supra.
Since there was inconclusive evidence as to how long Bundy allegedly may have been in the Lake City area, his case is therefore more analogous tc Barnes v, State, 348 So. 2d, 599 (Fla. 4th DCA, 1977). In Barnes, the court held improper a jury instruction on flight because of the lack of any evidence that the defendant had fled the scene of the crime.
Because the evidence was irrelevant to show Bundy's guilty knowledge, it was immaterial for any other use, and its prejudicial impact far outweighed any theoretical probative value. IT was improperly admitted, and because it was improperly admitted, the court should not have instructed the jury to consider it in its determination of guilt. The instruction given to the jury was in error because it shifted the burden of proof from the state to the defendant;
an unreasonable and unconstitutional result.
The evidence must be ruled irrelevant and the instruction improperly given. Accordingly, Bundy should be given a new trial exclusive of such evidence.
VII. THE TRIAL COURT ERRED IN
SENTENCING THE DEFENDANT TO
DEATH.
A, The Trial Court did not establish that the crime was especially heinous, at orc pious cruel.
In his written findings, the trial judge found thatthe victim had died asa result of homicidal violence to the neck region of the body (RP. 189).
The court concluded that the murder was, "...heinous, atrocious and cruel in tha tit was extremely wicked, shockingly evil, vile, and with utter indifference to human life." (RP, 189-190) Other than the finding of the apparent fatal wound, the court enumerated various facts about the location of the body and physical condition when it was found, and several itemsaf physical evidence. The court enumerated no specific cause of death, no details as to the acts that preceded or followed death, nor how cruel orpainful the death may have been for the victim, beyond a reasonable doubt.
The trialcourt erred in concluding that death must be imposed in this case. Allfirst degree murders are heinous and cruel. To constitute an aggravating circumstance, the murder must be especially heinous and cruel.
It must be:
"...accompanied by such additional acts as to set the crime apart from the norm of capital felonies--the conscienceless or pitiless crime which is unnecessarily torturous to the victim". State, Dixon, 283 So. 2d 1, 9 (Fla,, 1983) See also Tedder v, State, 322 So. 2 d, 808 (Fla., 1975) The mere fact that the murder occurred does not amount to and should not be used as an aggravating factor in this sentencing.
Dr. Lipkovic, the state's pathologist, testified that, in his opinion, death was a result ofa "...homicidal injury to the neck region, type undetermined".
(R. 4481) (Emphasis supplied) Neither Lipkovic nor Jack Duncan, an analyst for the Florida Department of Law Enforcement crime laboratory, coukl state that the death occurred in the hog pen where the body was found. (R. 4444) Therefore, the location and position of the body and the surrounding physical evidence should not be used to conclude that the death was heinous, cruel or atrocious.
The trial court did not point to any facts to support the finding that the death was "heinous, atrocious and cruel" in the common usage of the terms. See Alford v, State, 307 So. 2d, 433 (Fla., 1975) cert. denied 96 S.Ct.
3227; 48 U. S. 912, 49 L.Ed2d 1221, reh. denied 97 S.Ct. 191, 429 U.S. 873, The trial court did not factually find that the death was extremely wicked or evil. Therefore, it could not conclude that the death was heinous.
No facts proved that the death was outrageously wicked or vile. Therefore, the court could not conclude that the death was cruel, because no facts were presented to show that the death inflicted high degree of pain or that the perpetrator was indifferent too enjoyed the suffering of the victim.
The court did not pointtoa factual conclusion beyond a reasonable doubt that the alleged actual or attempted sexual battery took place as an attendant circumstance of death. The mere factthata sexual battery may have taken place at some timepriorto, or after, the commission of the murder does not bring it within the language of 0921.141, Florida Statutes- The trial court violated its own instructions to the jury by elaborating upon the location and condition of the body. The court ' s instructions to the jury were:
"The physical changes of the victim ' s body occurring after death cannot be considered by you in your determination of whether the State has proved beyond a reasonable doubt that the capital crime was especially heinous, atrocious or cruel."
(RP. 135) (Emphasis supplied) Yet the court violated that instruction by finding the crime heinous, atrocious and cruel based, in part, upon the condition of the body. The court ' s finding IIH" was as follows "Finding: The Court finds that the victim was a twelve-year-old female junior high school student attending the Lake City Junior High School. The Defendant kidnapped her from said junior high school somewhere between 9: OO and 1O: OO a.m.
on February 9: 1978, and her deteriorated body was found ina hog pen approximately forty - five miles from the scene of the abduction on April7, 1978. The victim died of homicidal violence to the neck region of the body. AT the time the body was found, it was unclothed except fora pullover shirt around the neck. There was semen stains in the crotch of her panties found near the body. Blood was found on the blue jeans found near her body. There were tears and rips in some of her clothes. The Court finds this kidnapping was, indeed, and murder was, indeed, heinous, atrocious and cruel in that it was extremely wicked, shockingly evil, vile and with utter indifference to human life".
(RP. 189-190) (Emphasis supplied) Such a finding was highly irrprcper in light of the instructions of the court to the jury, The trial court seems to have based its findings of aggravation entirely upon the final argument of the State Attorney. During the penalty phase, State Attorney Lair urged the jury to "imagine" what may have happened to the victim between the time she was abducted and the time her body was found. (RP. 97-99) The jury, and so the trialcourt, were allowed and encouraged to base a conclusion upon what might have happened, rather than being limitedto only what was proved beyond a reasonable doubt by the evidence. The imagination of the ordinary man is much more vivid than real fact would be, and it is clearly prejudicial for the trial judge and jury to conclude that the death sentence is warranted based upon the products of their own imaginations or the suggestions of the state.
The trial court, in its findings, set forth no factual basis for its conclusion that the death was heinous, atrocious, and cruel. Since the court lacked grounds for the finding that the death was heinous, atrocious and cruel, the sentence should not have been based upon this aggravating factor.
The sentence must be vacated and the case remanded for resentencing.
B. The Trial Court erred in finding that death occurred asa result of homicidal injury to the neck region of the victim, The trial court, in its finding of aggravation, concluded that the victim had died asa result ofa homicidal injury to the neck region. (RP. 33) The finding appears to be based upon the testimony of Dr. Peter Lipkovic, who testified that death occurred, in his opinion, asa result of such wound, type undetermined. (R. 4481) (Emphasis supplied) This fact was controverted by the defense witness, Dr. Joseph Burton, a Medical Examiner from Atlanta, Georgia, and an expert in forensic pathology. (R. 6029-6055) Dr. Burton testified that no specific cause of death could be determined from the autopsy report on Kimberly Leach. (R. 6045) He agreed with general findings as to the condition of the body, but could not conclude, as Or. Lipkovic had done, that the wound in the neck area was the cause of 0 death. Or. Burton further stated that this loss of neck tissue on the body could be reasonably explained by insect and small animal scavenging. (R. 6045- 6046) Furthermore, the alleged injury to the neck could just as easily have occurred after death. (R. 6048) Because the cause of death and attendant circumstances were not proved beyond a reasonable doubt, the trialcourt could not conclude that death occurred asa result of this injury and then use the conclusion as an aggravating factor in the penalty and sentencing phases of this trial.
Accordingly, because this fact was not proved beyond a reasonable doubt, the jury and the judge, by the court ' s own instructions, were precluded from considering this fact as an aggravating factor in support of a death sentence for Bundy. (RP. 135 and 195) Therefore, the sentence must be vacated and the case remanded for 0 resentenc ing.
C, The first two findings of aggravating circumstances in the trial courtfs sentence involved the same convicted act and this constituted an i per missib le doubling of aggravating circumstances, In the trialcourt ' s sentencing report, specific findings of aggravating and mitigating circumstances, as required by 0921.141, Florida Statutes, were made. (RP. 31-37) The first two findings are reproduced below:
" A, that the crime for which the Defendant ist o be sentenced was committed while the defendant was under sentence of imprisonment.
Finding: The unrefuted testimony established beyond a reasonable doubt that the defendant was under sentence for aggravated kidnapping in the State of Utah, which had not been served, paroled or pardoned.
B, tha that the time of the crime for which he is to be sentenced, the defendant had been previously convicted of another capital offense or felony involving the use of or threatof violence to some person.
Finding: The unrefuted testimony established beyond a reasonable doubt that the defendant had been convicted of the crimeof aggravated kidnapping in the State of Utah and that it was crime involving the use of or threat of violence to some person."
(ap. 3 1) In Provence v, State, 377 So. 2d 783 (Fla,, 1976), the Florida Supreme Court quashed a sentence of death fora murder committedin the course of an armed robbery. The trialcourt in Provence found that the factor robbery established two aggravating factors, to - wit: Commission of the rnurder in the course of a robbery and commission for the purpose of pecuniary gain. Provence, at 786, citing 1821 -141 (5)(d)(f), Florida Statutes. The Provence court ruled that, while the two factors constitute separate analytical concepts, they both referred in that case to the same aspect of the defendant's crime. As such, the factor robbery could only validly be considered as one aggravating circumstance.
The principle enunciated in Provence has been consistently followed in Florida capital cases. Quince v.
State, 414 So. 2d, 185, 188 (Fla., 1982); Vaught v. State, 910 So. 2 d, 147, I50 (Fla., 1982) Francois v. State, 407 So. 2d, 885 (Fla., 1982); Welty v. State, 402 So. 2d, 1159, 1164 (Fla., 1982); Armstrong v. State, 399 So. 2d, 953, 962, (Fla., 1981); Sireci v. State, 399 So. 2d, 964, 971 (Fla., 1981); Maggard v.
State, 399 So. 2d, 973, 977 (Fla., 1981); Palmes v. State, 397 So. 2d 648 (Fla., 1980); Gafford v. State, 387 So. 2d 333, 337 (Fla., 1980); Harvard v. State, In the instant case, as in Provence, and its progeny, the same opera tive fact was held to constitute two aggravating circumstances. A Utah conviction for aggravated kidnapping was held to provide both the status of being under sentence fora prior conviction and a previous conviction of a crime involving the use of or threat of physical violence. (R. 1637) See also 8921 -141 (5)(a)(b), Florida Statutes.
As such, Bundyls sentence is illegal and should be vacated and his case remanded to the trialcourt for resentencing.
D. The trial court erred in admitting the testimony of Michael James Fisher to pre an aggravating factor in the penalty phase.
During the penalty phase, the State offered the testimony of Michael James Fisher, an investigator for the DistrictAttorney ' sOffice in Aspen, Colorado, to prove that the defendant had escaped from jail in Aspen, Colorado. Mr. Fisher's testimony was offeredto prove that: (I) The defendant, Bundy, had been under a sentence in Utah; and (2) that the defendant, Bundy, had been transported to Aspen, Colorado, to face additional charges; and
(3) that the defendant, Bundy, was in the Garfield County Jail at Glenwood Springs, Colorado, at some time; and (4) tha tat some time after the defendant was placed in that jail, he was no longer there. (RP. 28-28) The defense objected to the use of an investigator's testimony for this purpose. The defense contended that unless the State used the testimony of' the jailer and the fingerprint record of Bundy when he was placed in the jail, any testimony offered would be inadmissible here say.
The trialcourt overruled the objection by the defense and allowed the investigator totestify as to his second-hand knowledge. This testimony was incompetent and rank hearsay. The investigator did not have custody of Bundy at the timeof any alleged escape. The investigator did not offer evidence to prove that Bundy was the person held in custody in Colorado, and could only have testifiedto the investigation of various activities of Bundy.
Asa t least one Florida case has held, evidence that person had been in the custody of the warden as an inmate priorto his alleged escape does not constitute proof either that, such custody was lawful, orthat the defendant was the person committedto the state prison. Fulford v, State, 113 So.2d 572 (Fla., 2d DCA, 1959) As applied to the instant case, the testimony of the investigator could not be used to prove that Bundy was unlawful custody orthat Eundy was the same man who was in custody in Colorado and Utah. The State had competent testimony available; the jailer who allegedly booked Bundy and the fingerprintcardfrom the jail in Colorado. The stateattemptedto short circuit the burden ofproof by using incompetent testimony. Therefore, the state should not have been allowed to prove, as an aggravating factor, the alleged escape by Rundy.
Accordingly, the sentence should be vacated and the case remanded to the trialcourt for resentencing.
E. The trial court erred in denying the Defendant's Motion to Enter Life Sentence on verdict and to prohibit penalty phase of trial.
The defense filed amotionthat would have prevented the court from convening the penalty phase and from returning a death sentence. (RP. 14840- 14842) The mation stated that the defendant was unconstitutionally forced to risk death in order to exercise his rightto jury trial. (RP. 14840-14842) The motion was argued extensively and then denied by the trial judge. (RP. 4-6) It was errortodeny the motion. Therefore, the sentence should be vacated andalife sentence imposed.
CONCLUSION
For the reasons set forth in the foregoing arguments and citations of authority, it is respectfully submitted that the conviction, judgment and sentence of Theodore Robert Bundy for the kidnapping and murder ofKimberly Diane Leach should be vacated and set aside and the cause remanded fora new trial.
Respectfully submitted, "'counsel fd' Appellant
P. 0. Box 1450 Live Oak, Florida 32060
(904) 362-6930
CE RTlF IRATE OF SE RV ICE I HEREBY CERTIFY that atrue and correct copy of the foregoing instrument has been furnished to the Attorney General of the State of Florida, The Capitol, Tallahassee, Florida, by hand on this 15th day of December, 1982.
xc: Theodore Robert Bundy
APPENDIX A
JUDGE/JURY ROLES IN CAPITAL PENALTY DETERMINATION
A Survey of National Legislative Practice, 1972-1981 Legends and Notations:
L - Life sentence unless jury unanimously agrees on death Unanimous verdict required for either life or death M - Simple majority suffices for verdict of either life or death A - Alabama system: 10 jurors required for death, 7 jurors required for life T - Unique Texas procedure: penalty jury answers special questions on deliberate nature of murder, probability defendant would engage in future acts of dangerous violence, and (if raised) lack of provocation by victim, 12 jurors required to answer llyesll to each question for imposition of a death sentence; 10 jurors suffice to answer any question “no” and prevent death sentence, (1) Jury Life Verdict Binding CALIFORNIA Penal Code (1979) § 1903-190-4 U CONNECTICUT Gen. Stats. Ann. (1979PckPt.) 853a-46a U
0 DELAWARE
GEORGIA Code Ann. (1977 CumSupp.) Ill-4209 Code Ann. (1977) 826-3102, 27-2302 KENTUCKY Rev, Stats. (1978 Cum. Supp.) 95321)25 U NEVADA Rev, Stats. (1977) ll75554 U OHIO Rev. Code (1981 Legislation, File 60)W29291124(a2) L TEXAS Code CrimProc. Art, 37D71 T WASHINGTON Rev, Code Ann- (1978 PckPt.) 810.94x)20 U UNITED STATES 49 USE 01473 (1976) (Antihijacking Act) U (Cont'd p. (2)
2. Jurv Life Verdict Not Binding ALABAMA Senate Bill 241, 88-9 (1981) A FLORIDA Stats.Ann. (1977) 1921.I41 M INDIANA Stats-Ann, (1979) B35-50-2-9 U 3, Penaltv Determination bv Judads) Alone ARIZONA Rev. Stats. Ann. (I978 SuppPamph) I 13-454 IDAHO Code (l978)(Cum Pck Supp -)PI1 9-251 5 MONTANA Rev. Codes (I977 Interim Supp,) 1952206.6 NEBRASKA Rev. Stats. (1975) d29-2520
IN THE SUPREME COURT OF FLORIDA
THEODORE ROBERT BUNDY,
Appellant,
VS. CASE NO. 59,128
STATE OF FLORIDA,
Appellee.
ANSWER BRIEF OF APPELLEE
JIM SMITH
ATTORNEY GENERAL
GREGORY C. SMITH
ASSISTANT ATTORNEY GENERAL
The Capitol Tallahassee, Florida 32301
(904) 488-0290
COUNSEL FOR APPELLEE
TABLE OF CONTENTS
PAGE TABLE OF CONTENTS i TABLE OF CITATIONS iii
ARGUMENT
ISSUE I
THE TRIAL COURT DID NOT ERR IN DENYING
THE DEFENDANT'S MOTION TO SUPPRESS THE
TESTIMONY OF C. L. ANDERSON ON THE GROUND
THAT MR. ANDERSON'S TESTIMONY WAS TAINTED
ISSUE I1
WHETHER THE TRIAL COURT ERRED IN EXCUSING
FOR CAUSE THOSE JURORS WHO WERE UNALTERABLY
COMMITTED TO VOTE AGAINST THE DEATH PENALTY
ISSUE I11
WHETHER THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR CHANGE OF VENUE OR
ISSUE IV
WHETHER THE TRIAL COURT ERRED IN NOT
CONDUCTING, ON ITS OWN MOTION, A "FRYE
TEST" CONCERNING THE FIBER AND SHOE
ISSUE V
WHETHER THE TRIAL COURT ERRED IN
ISSUE VI
WHETHER THE TRIAL COURT ERRED IN
ALLOWING THE ADMISSION OF TESTIMONY
OF FLIGHT, AND THE SUBSEQUENT JURY
ISSUE VII
WHETHER THE TRIAL COURT ERRED IN
A. and B. Whetherthe trial court erred in finding that the crime was especially heinous,
C. The trial court did not improperly double the same factual circumstance into two separate
D. The trial court did not err in admitting the testimony of Michael Fisher to show that Bundy was under
E. Whether the trial court erred in denying the defendant's motion to enter a life sentence and to prohibit the
TABLE OF CITATIONS
Case Page Albernaz v. United States, Alford v. State, Batey. State,
355 So.2d 1271 (Fla. 1st DCA 1978) 2 6, 27 Blockburqer v. United States, Brown v. State, Chandler v. Florida, Chapman v. State, Clark. State, Creamer v. State, Daniels v. State, Dixon v. State, Dobbert v. Florida, Dobbert v. State, Frye. United States, Gafford v. State, People. Smrekar, Provence v. State, Rankin v. State, Riley. State, Rodriquez v. State, 32I So.2d 903 (Fla. 3d DCA 1976) i cert.- den, 336 So.2d 1184 Snead v. State, 415 So.2d 887 (Fla. 5th DCA 1982) Spinkellink v. State, @inkellink v. Wainwriqht, State. Brom, State. Dixon, State. Heqstrom, State v. Jorqensen, State. McQueen, Steinhorst v. State, Stewart v. State, Straight v. State, Tompkins v. State, United States. Adams, United States. Awkard, cst.- Villagelieu v. State, Whalen v. United States, Williams v. State, Witherspoon v. Illinois, Wyller v. Fairchild Hiller Corp., Other Authority Annot: Admissibility of Hypnotic Evidence
STATEMENT OF THE FACTS
Appellee, the State of Florida, accepts the Statement of Facts and the Statement of the Case as propounded by Appellant's Initial Brief. However, due to the importance of the statements made on voir dire by the twelve jurors who actually heard the case below, the State would offer a short summary of the statements given by each juror below.
Phyllis B, Murphy Mrs. Murphy's voir dire starts on page 1017 of the record.
Initially, the trial court asked her whether she could put aside any opinion she might have about the guilt or innocence of the accused. She replied that she could (R-1018). When asked 0 whether she had heard about this case or Bundy in general, she said that she knows the name, but that she did not remember what happened in the past (R-1032). She said that she did not even know the outcome of the murders in the Northern part of the state, but she thought if Bundy had received the death penalty, she would have heard about it (R-1039). When asked whether she remembered the facts in the case or who was involved, she replied "NO." (R-1040). She answered negatively to counsel's question whether she knew anything which would prevent her from viewing the case objectively and impartially (R-1043).
Floyd R. Armel Mr. Armel promised Judge Jopling that he would put aside any opinions and consider only the evidence he heard in the courtroom (R-1081). When asked whether he knew of Bundy, MK. Armel said he had heard the name, but had paid no attention to the stories since it did not interest him (R-1103). Further, he stated that he knew nothing about any previous incident and had not heard anything about the Leach case until he came to court asa prospective juror (R-1104,05). In fact, Mr. Armel explained that he had never even talked to anyone about Bundy (R-1106).
Eleanor J. Thompson Mrs. Thompson's voir dire starts on page 1481. While she stated that she heard negative things about Bundy, and that these had given a negative feeling toward him, she promised that she could put these opinions aside (R-1483,1513). The prospective juror had some knowledge of the Chi Omega case, but from her responses it is clear that she had no specific information about the crime (R-1512).
George Yurcisin The voir dire of Mr. Yurcisin starts on page 1686 of the record. Mr. Yurcisin promised the judge to lay aside all opinions he might have about the case or this defendant (R- 1686). Mr. Yurcisin said he recognized Bundy's name but he did not know anything about the last case (R-1699). He mostly read the headlines inthe paper (R - 1700). Additionally, he said that he had noida of this case atall (R-1700). He did, however, know that Bundy hadbeenfoundguiltyofmurder and sentencedto deathinanearlier case (R-1710,1711). He never saw any portion of thetrialinMiamiandhealsosaidthathisknowledge of the earlier crime hadnoeffectonhim (R - 1711).
Clinton Lister Like a11 the preceding prospective jurors, MR. Lister promisedthetrialcourtthathe would putasidetheopinionshe heldaboutthedefendant or the case (R-1975). HE was further askedwhetherheheldanopinionabouttheinstant case andhe said he did not (R-1976). As far as hisexposuretothemedia, Mr. Listersaidthathehadheard of Bundy, but thathe had never listenedtotheradio or read news stories about him (R- 1988).
He hadhearda rumor at work that Bundy was tried for somethingupNorth, buthecouldn ' t remember the charges or the outcome (R- David M. Thomas On page2013 of the record, voir dire of MR. Thomas starts witha promise tothejudgethathewillputasidehisopinions anddecidethe case onlyontheevidencepresented. Mr. Thomas statedthathehad no opinionaboutthis case (R-2015). Further, hestatedthathedidn ' t know about this case but thathe had been informed about theChi Omega case (R - 2037). HE knew that Bundy had been tried in Miami for the murder of two coeds in Tallahassee. He further knew that bite mark testimony had been admitted and that a death sentence had been returned (R-2038).
However, Mr. Thomas stated that this earlier case had no effect on him concerning Bundy's guilt or innocence (R-2042).
Lorraine L. Rochefort Mrs. Rochefort promised the judge she would leave her opinion outside the court and decide the case only on the evidence presented (R-2699). She also said that she had no knowledge of the facts of this case (R-2713). She had heard that Bundy had been on trial before they moved the trial to Orlando (R-2721). She knows he had been tried and found guilty, but she doesn't know what for (R-2722). The knowledge she had acquired would not affect her ability to decide this case (R-2725).
Lorraine Meserole To the judge's question whether she could put aside any opinions of the case, Ms. Meserole said that she had a clear mind (R-2738). The first time she heard about Bundy was when she came into court for jury duty (R-2760). She has never talked about this case (R-2763).
Dorothy Eddy Mrs. Eddy's voir dire starts on page 3102 with the same promise all the others had given concerning the putting aside of opinions (R-3103). She stated that she does not know anything about this trial (R-3127). Further, she had not read or seen anything that had given her an opinion about this case (R-3128).
Dorothy Henderson MKS. Henderson promised to put aside any opinion she had about the case (R-3192). She further stated that she knew nothing about this case (R-3203). About any previous case, Mrs.
Henderson said she knew there had been one but that is all (R- Marjorie B. Parsons Mrs. Parsons promised to put aside her opinions (R-3228).
However, Mrs. Parsons stated that she does not have a T.V. and does not receive a newspaper, so she knows very little about the case (R-3228). She further said she had never heard of Bundy before being called into court for jury duty (R-3248).
Patrick Wolski (foreman) Mr, Wolski told the judge he could put aside what he has heard in the media (R-3456). He stated that he knows about the Tallahassee murders and that Bundy was convicted in Miami (R- 3473). Mr. Wolski did not see the trial on T.V. but he did see some accounts on the 6: OO news (R - 3474). Mc, Wolski stated that he believes that he has no opinion as to guilt or innocence until 0 the evidence is produced (R-3479). Mr. Wolski stated that he had not read anything about the Leach murder (11-3480).
ISSUE I
THE TRIAL COURT DID NOT ERR IN DENYING
THE DEFENDANT'S MOTION To SUPPRESS!I!HE
TESTIMONY OF C. L. ANDERSON ON THE GROUND
THAT MR. ANDERSON'S TESTIMONY WAS TAINTED
BY PRE-TRIAL HYPNOSIS.
Appellant claims that the use of C.L. Anderson's testimony was inappropriate because Anderson had been placed under hypnosis prior to his taking the witness stand. This argument takes two forms: (1) that, asa result of the hypnosis, the testimony was inadmissible per se, and (2) that the testimony was unreliable.
Appellant traces the development, in certain states, of a per se rule exclusion of such testimony. However, that rule is not the law in Florida and should not be adopted by this Court. In fact, this case demonstrates exactly why such a rule of inadmissibility is inappropriate.
Initially, it is important to recognize that hypnosis was not the source of the testimony of C. L. Anderson. The witness had been able to describe the encounter with the white van prior to the hypnosis sessions. Several cases allow the refreshed testimony of hypnotized witnesses who have, through trauma, lost the ability to remember the event. State. Jorqensen, 8 0n.App.
1, 429 P. 2 d 312 (1971); State. Brom, 494 P.2d 434 (On-App.
1972); Wyller v. Fairchild Hiller Corp., 503 F.2d 506 (9th Cir.
0 Unlike the witness who was the victim of a violent act and whose memory was almost non-existent before the hypnosis, we clearly have testimony "before" and "after" hypnosis, which can be compared to determine the effect of the intervening process.
The defense claims that extensive media coverage created the suggestion which caused C. L. Anderson to confabulate his testimony. How can this theory with stand the fact that Bundy's picture figured prominently in the media, and even after the hypnosis, Anderson could not positively identify Bundy in the courtroom (R-4072). If memory was hypnotically supplemented by external influences, as the initial brief of appellant exhaustively argues, then why was not this essential identification a positive one? Further, the defense makes a point to show that the description of Kimberly Leach was known to the witness. If so, and if this supplemented his memory, how is it that the witness " missed " the number on the girl's jersey by saying that it was 63 or 68, (R-4064), when it was actually 8 3 (R-3877). Surely, if the defense theory is correct, such a detail would have been supplied by Anderson's exposure to the media.
These facts cannot be reconciled with the theory proposed by the defense, because C. L. Anderson's testimony was not a product of hypnotically induced memory. This is made very clear by the testimony of Anderson himself to the effect that his memory was not different before and after the session (R-4084).
0 Since the testimony "before" and "after" is the same concerning the in-court identification of Kimberly Leach and the identification of Bundy as similar to the man driving a white van, we do not have the question of admissibility of an out-ofcourt identification, but we have an in-court identification subject to the full range of cross examination. See State.
Jorqensen, supra, Rodriquez v. State, 327 So.2d 903 (Fla. 3d DCA 1976), cert. den. 336 So.2d 1184, State. McQueen, 244 So.2d 414 (N.C. 1978). Essentially, the situation can be favorably compared to the investigatory hypnosis spoken of in People.
Shirley, 31 Cal.2d 18, 641 P.2d 775 (1982). If we exclude those details made clear by hypnosis, we are left with relevant, untainted testimony.
In the very complete memorandum presented by the state attorney to the trial court on the admissibility of Anderson's testimony (R-13,198-13,212) it is clear that rather than excluding the testimony of a hypnotized witness, the proper procedure is to present that testimony to the jury, along with the caveat of the intervening hypnosis. This is to allow the jury to decide what weight the evidence has. In the case sub judice the jury heard both the tape of the actual hypnosis session, (R-6276) along with expert testimony provided by the defense on the suggestibility of individuals placed under hypnosis. The decision concerning the weight to be given such testimony was made by an informed jury. Recently, the Fifth 0 District Court of Appeal has held that the jury must decide what credibility a hypnotized witness is entitled to. Snead v. State, 415 So.2d 887 (Fla. 5th DCA 1982). While there is little discussion of the issue in Snead, it is clear that the Fifth District Court of Appeal has not adopted the rule of exclusion proposed by Appellant.
In addition to Snead, the First District Court of Appeal has upheld the admissibility of hypnotically refreshed testimony in Clark. State, 379 So.2d 372 (Fla. 1st DCA 1979). In Clark, the victim was placed under hypnosis and told to reconstruct the robbery episode. After morning out of the hypnotic trance, the victim was shown photos of his assailants, who he then identified.
At trial the victim testified to the manner in which he identified his assailants. A hypnosis expert was called to allow the jury the opportunity to further evaluate the credibility of the witness. The First District Court of Appeal upheld the victim's identification, stating that his credibility was for the jury to determine.
Generally, but with some notable exceptions, courts across the country have allowed the 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, United States. Awkard, 597 F.2d 667 (9th Cir.
(1979); Creamer v. State, 205 S.E.2d 240 (Ga. 1974); People.
e Smrekar, 385 N. E. 2 d 838 (Ill. App. Ct. 1979); Chapman v. State, 638P. 2 d 1280 (Wy. 1982). Appellant's claim that the evidence should be excluded as inadmissible has been rejected in the Ninth Circuit. 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, supra.
Appellant attacks the in-court identification of Bundy by
C. L. Anderson, stating that the hypnosis made the likelihood of irreparable misidentification likely. Appellant is of course using the case of Neil. Biggers, 409 U.S. 188 (1974), to support his theory. However the State would point out that the Biggers analysis does not become relevant until we can determine e that the "confrontation" was suggestive. Of course, this argument is built on the assumption that the hypnosis caused confabulation, which in turn caused a suggestive situation. The State has thoroughly rebutted that assumption, and thus a Neil.
Biggers analysis is unnecessary.
The statement was earlier made that this case demonstrates why a per se rule of inadmissibility is inappropriate. C. 1;.
Anderson's testimony was undoubtedly relevant. To have thrown it out of court because of the intervening factor of hypnosis, would have been to disqualify the testimony of an eye witness without knowing whether that testimony was in fact tainted. The appropriate standard is to allow the jury to decide what weight to be given such testimony. This Court should affirm the lower court's ruling allowing the witness, C. L. Anderson, to testify.
ISSUE I1
WHETHER TBE TRIAL COURT ERRED IN EXCUSING
FOR CAUSE THOSE JURORS WHO WERE= UNALTERABLY COMMITTED TO VOTE AGAINST THE DEWlB PENALTY
SHOULD "IZHEY SIT ON "HE JURY.
ARGUMENT
Appellant's second issue is innovative in urging the new application, or in truth a non-application, of Witherspoon v.
Illinois, 391 U.S. 510 (1968). The substance of Appellant's point is that the differences between the Illinois statute, and the Florida statute, causes Florida's interest in excluding jurors who would automatically vote against the death penalty, to be lessened into non-existence. This being so, Appellant urges, 0 the defendant's interest ina jury composed of a cross section of the community, controls.
Though novel, this issue was never ruled on below since the specific objection was never lodged (R-14,658). This Court held in Steinhorst v. State, 412 So.2d 332 (Fla. 1982), that the objection below must be on the same ground as urged on appeal.
Thus, Appellant's argument should be disregarded by this Court.
Even if this Court decides to address the unpreserved issue, it still must decide in favor of the State. This is because of an essential flaw in Appellant's theory: that Witherspoon spoke only to those cases in which the statute provides for jury sentencing. The court in Witherspoon stated the issue: "The petitioner contends that a state cannot confer upon a jury selected in this manner the power to determine guilt."
Witherspoon, at p. 516. Clearly, the challenge in Witherspoon was not whether the jury could ultimately sentence after a guilty verdict, but was instead whether such a jury could return a verdict on guilt or innocence. Focusing only on the ability to return a verdict, the Illinois statute and the Florida statute cannot be relevantly distinguished. Had the Supreme Court wished to speak only to states with statutes like Illinois, it would clearly have done so.
Appellant's claim is built on the allegation that juries empanelled under the Witherspoon rule are not representative of a cross section of the community. It is clearly not the case, and 0 this Court has repeatedly so held. Riley. State, 366 So.2d 19 (Fla. 1979); Maqqard v. State, 399 So.2d 973 (Fla. 1981); Gafford
v. State, 387 So.2d 333 (Fla. 1980); Steinhorst v. State, supra;
Jackson v. State, 366 So.2d 752 (Fla. 1978).
In Spinkellink v. Wainwriqht, 578 F.2d 582 (5th Cir. 1978), this issue was presented with the claim that Spinkellink's Sixth and Fourteenth Amendment right to an impartial jury had been violated. In Spinkellink, defendant acknowledged that the Supreme Court in Witherspoon had specifically declined to embrace the theory that jurors opposed to capital punishment are unrepresentative of the community in the guilt-innocence phase.
However, Spinkellink sought an evidentiary hearing wherein he would seek to prove his point. The Fifth Circuit assumed the allegation was true for the limited purpose of disposing of the case, and found the argument non-meritorious. The court stated:
"The veniremen indicated only thatthe would be willing to perform their civic obligation as jurors and obey the law.
Such persons cannot accurately be branded as prosecution prone," At p. 594 The Spinkellink court went on to explain that if a juror who could not vote for the death penalty found himself on a jury determining guilt or innocence, the possibility of the imposition of the death penalty might cause that juror to refuse to vote for a guilty verdict. The chance of a hung jury increases along with the chance that a guilty defendant might avoid punishment a altogether by being repeatedly tried by such jurors.
Appellant's contention is clearly merit less under Florida and federal law. This Court must affirm the judgment below.
ISSUE I11
WHETHER THE TRIAL COURT Fired IN DENYING
DEFENDANT'S MOTION FOR CHANGE OF VENUE
OR ABATEMENT OF PROSECUTION.
ARGUMENT
Characterizing the pretrial publicity below as "enormous," Appellant asked this Court to find that his jury was so pre disposed to a finding of guilt, that he was denied a fair, trial. Interestingly enough, Appellant does not point to any juror's excusal for cause based on this all-pervasive publicity. More relevant indeed, he does not point out how many of the jurors below had heard anything about the Kimberly Leach killing. The State has carefully examined the voir dire of those 0 persons who served on the jury below, and can state that none of the jurors impanelled below had heard specific information about the Leach murder. All had heard nothing more than what is contained in the indictment which was read to them as prospective jurors.
In Dobbert v. Florida, 432U. S. 282 (1977), the United States Supreme Court stated:
"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." At p. 303 (Emphasis added) Instead of focusing on whether these twelve people were able to render a fair decision below, Appellant urges this Court to find that he is entitled to a jury who had no substantial knowledge of Bundy. (See Initial Brief p. 62) Were that truly the standard, then persons known to the public, Spiro Agnew and John Dean as examples, would have virtual immunity from prosecution. Instead, the constitutional standard requires not that the jurors be totally ignorant of the facts or issues, but that they retain their impartiality. Murphy v. Florida, 421 U.S.
The Supreme Court in Dobbert, citing to Murphy v. Florida, further stated:
"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. At p.
303, Dobbert v. Florida See also Dobbert v. State, 328 So.2d 433,440 (Fla. 1976);
Chandler v. Florida, 449 U.S. 560 (1981); Straight v. State, 397 So.2d 903 (Fla. 1981); Kniqht v. State, 338 So.2d 201 (Fla.
Murphy v. Florida, supra, provides an interesting comparison to the case below. "Murph the Surf" as the press referred to him, had been newsworthy since he flamboyantly stole the Star of India Sapphire from a New York museum. Six years later, jury selection began ina prosecution against Murphy for breaking and entering while armed. In the meantime, he was convicted of murder in Broward County and pled guilty to a federal indictment involving stolen securities. These previous convictions received wide media coverage. The United States Supreme Court upheld the conviction even though, unlike the case - sub judice, there was no change of venue. All six jurors who made up the panel in Murphy, including the two alternates, apparently had knowledge of Murphy's previous crimes. This fact stands in stark contrast to the instant case. Of the twelve jurors below, three had no knowledge of the Chi Omega murders. (Meserole, R-2760; Eddy, R- 3103; Parsons, R-3248). Of those three, two had never even heard of Theodore Bundy (R-2760, 3248). Five of the remaining nine had some knowledge of the Chi Omega murders, but these had little more than sketchy ideas of what had occurred (Murphy, Armel, Lister, Rochefort, and Henderson). The four remaining jurors knew of the Chi Omega murders and Bundy's conviction for those crimes (Thompson, Thomas, Yurcisin, and Wolski). However, all the jurors, including the four with knowledge of the previous crime, stated without hesitation that they would put aside any opinions they might hold and decide the case only on the evidence presented (R-1018,1081,1513,1686,1975,2013,2699,2738,3103,3192, Instead of demonstrating that he was tried by jurors with 0 preconceived notions of his guilt, Appellant engages ina scholarly comparison of the First Amendment protection of the press and the protection's guaranteed to him by the Sixth and Fifth Amendments of the Constitution.
In Nebraska Press Association v. Stewart, 427U.S. 539 (1976), the United States Supreme Court listed the following alternatives to protect a defendant's right to a fair trial:
'' (1) Change of venue;
(2) Search and questioning of prospective jurors;
(3) the use of instructions to each juror to decide the issue only on the evidence presented in court;
(4) Sequestration of the jury."
Here, change of venue was granted from Suwannee County -0 Orange County, Florida; all of the jurors stated that they could decide the issues based solely on the evidence presented in court: the jurors were individually voir dired; and the jury was sequestered after it was impanelled.
Every protection listed by Nebraska Press was followed below. The crime was first charged in Columbia County and Appellant elected to proceed in Suwannee County pursuant to Section 910.03, Florida Statutes. Trial was then moved to yet a third county after an attempt to empanel a jury in Suwannee County was unsuccessful. It would be interesting to hear Appellant's suggestion concerning where the trial could have been moved yet a third time if his second motion for change of venue 0 had been granted. Abatement of prosecution would have been useless since it is clear that to delay the prosecution would simply delay the coverage it would receive. As it was, the trial took place nearly two years after the commission of the crime.
All this Court need do to conclude that Appellant's point is without merit is to examine the voir dire of the jurors who actually decided the case - sub judice. This Court should affirm the denial of Appellant's Motion for Change of Venue.
ISSUE IV
WHETHER THE TRIAL COURT ERRED IN NOT
CONDUCTING, ON ITS OWN MOTION" A "PRYE
TEST" CONCERNING THE FIBER AND SHOE
TRACK EVIDENCE.
ARGUMENT
Appellant next complains that the trial court erred in failing to hold a Frye inquiry on its own motion.
Frye. United States, 293 F. 1013 (D.C. Cir. 1923), held that when expert testimony is adduced from a scientific experimental test, the test from which the expert's conclusion is based must be recognized as probative of the results testified to. Specifically, Appellant claims that the trial court should 0 have inquired as to whether comparisons of fiber and shoe tracks have probative value.
Fundamental error appears, Appellant contends, because of this alleged failure. It is little wonder that Appellant argues that the error is fundamental because there was no objection on this ground below. In Steinhorst v. State, supra, this Court held:
"Except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court. (Citations omitted) Furthermore, in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below. (Citations omitted) At While Appellant made an objection to the expert testimony on other grounds, that objection cannot now be transformed into an objection based upon the Frye case.
Thus, the issue becomes whether "fundamental error" appears below. Fundamental error, of course, is that error which "reach[esl down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Brown v. State, See also Stewart v.
State, - So.2d (Fla. 1982) (7 F.L.W. 375).
To be able to argue that an error is fundamental Appellant must first be able to argue that the admission was simple error. Appellant must show that the evidence was not probative because the scientific test cannot lead to any reliable results. This threshold question which would have to be answered in defendant's favor to demonstrate simple error, is missing.
In Jent v. State, 408 So.2d 1024 (Fla. 1981), the defense made an objection to the expert testimony on hair sample analysis. While the Court recognizes that hair sample analysis is not precise enough to positively identify a sample as having come from a particular individual, the Court also recognized the probative value of such testimony. The reliability of the tests is relevant to the analysis of the proper weight to be given the evidence. See also Peek v. State, 395 So.2d 492 (Fla. 1980).
Hair sample and shoe track evidence is of the same type as hair sample evidence. Therefore, the analogy of Jent and Peek is strong. Having failed to carry his burden of even showing simple error, Appellant is barred from a presentation to this Court of an issue unpreserved below.
ISSUE V
WITHER THE TRIAL COURT ERRED IN
DENYING APPELLANT'S MOTION FOR VIEW.
ARGUMENT
Appellant correctly states that the Motion for View is left to the discretion of the trial court and that discretion is presumed to have been exercised correctly in the absence of a demonstration to the contrary. Rankin v. State, 143 So.2d 193 (Fla. 1962); Dixon v. State, 143 Fla. 277, 196 So. 604 (1940);
Tompkins v. State, 386 So.2d 597 (Fla. 5th DCA 1979). In the Initial Brief, Appellant strongly urges the trial judge erred in failing to allow the jury to "see for themselves" that C. L.
Anderson could not have seen what he saw. This contention does nothing to under cut the trial court's exercise of discretion.
First, an analysis of what was disadvantageous about the view. The view was to be conducted many miles from the courtroom. This cannot be charged against Bundy, but the physical act of moving a sequestered jury, the trial judge, the defense and the prosecuting attorneys, and the defendant, is not to be taken lightly. Although Bundy waived his right to be present at such a view, it is clear that Bundy would have had to have been present (R-5859). See Section 918.05, Florida Statutes, and F1a.R.Crim.P. 3.180(a)(7). Bundy was a known security risk having escaped from custody on earlier occasions (R-5858). Also, working against such a view was the fact that the scene was substantially different in 1980 than it was in 1978. Counsel pointed out that the road in front of the school had been widened and four-laned (R-5592). Appellant was arguing that the view was necessary for distance evaluations between the road and other points. Clearly, the fact that the road was different in 1980 worked a significant disadvantage to a view.
Additionally, the defense was claiming that the traffic flow would not allow a van to be parked on a street while an abductor searched fora victim. The fact that the traffic patterns were changed by the addition of extra lanes, weakens the value of a view. The court also expressed concern that the view might cause disruption in the school day at the Junior High School. Clearly, holding a view on a weekend would not approximate the activity and traffic present on February 9, 1978 (R-5859).
The above considerations are against the Motion for View. An examination of Appellant's reasons in favor of a view shows that the trial court did not abuse its discretion in denying the motion. Appellant claims it would be physically impossible for C. L. Anderson to have seen Bundy and Kimberly Leach and the white van on February 9, 1978, because of the distance between the roadway and the likely route taken by Kimberly Leach (R-5590;14,787). Distances are capable of measurements, and are not demonstrated only by pacing off the purported route of travel. Similarly, defense witnesses could take the stand to provide the jury with approximate distances and 0 time of travel between identified points. Mr. African0 stated:
"1 think they should be allowed to walk from Mr. Bishop's room OK here to the gym, to walk from this point to the gym and from the gym back over there just so they've gota feel and knowledge of what was going on there and how possible it would have been for this to have occurred." (At R-5593) Clearly counsel wished the jury to engage in an experiment to determine time and distance themselves. There would be no reliable conclusion because Kimberly Leach's route was unknown, traffic patterns were different, and the roadway in front of the school was not the same.
It is interesting that Dixon, supra, is cited by Appellant since Dixon is capable of close analogy with this case. Dixon's theory of the defense was that the state witnesses stood in positions from which they could not have seen the crime committed. The court denied Dixon's motion for view stating:
"The record shows that these different witnesses were closely cross examined by counsel for defendant and their knowledge of the locus in quo and the parties was fully submitted to the jury. It was not shown that the premises where the crime was alleged to have been committed were in the same condition when the trial was had as they had been when the difficulty took place." At p. 606 While the motion in Dixon was directed to a view of a building, and the motion below was fora view of a junior high school campus, these cases are closely aligned. Counsel had substantial opportunity, which he exercised, to cross examine the witness C. L. Anderson. Further, the roadway from which Anderson saw Bundy and the victim was different when the trial took place, but from aerial photographs, measurements could be taken so that defendant's theory of the case could have been presented to the jury.
It is unmistakably clear that the trial court was correct in refusing Appellant's Motion for View. This Court should affirm the ruling below.
ISSUE VI
WHETHER TEE Trio COURT LEWD IN
ALLOWING THE ADMISSION OF TESTIMONY
OF FLIGHT, AND THE SUBSEQUENT JURY
INSTRUCTION.
ARGUMENT
Ina two-part issue, Appellant contends that the introduction of evidence of flight, and the instruction to the jury thereon, was reversible error. The first sub-issue claims that the trial court misinterpreted two cases; Batey. State, 355 So.2d 1271 (Fla. 1st DCA 1978), and Harqrett v. State, 255 So.2d 298 (Fla. 3d DCA 1971). While the State staunchly maintains that these cases are supportive of the court's ruling, it must also be said that if the court's ruling was right under any other case not mentioned, the ruling is still correct.
In both Harqrett and Batey, Appellant contends, the defendants urged the court to find that there was too little evidence of flight to have supported its introduction into evidence. On the other hand, Appellant here claims that the objection below was aimed at excluding irrelevant evidence. This is a clever attempt in trying to make six, something different than one half dozen.
The argument urging irrelevance goes something like this: There is no showing that Appellant was fleeing asa result of the crime charged. Appellant admits the flight, but contends that there is not enough evidence to show what crime he was @ fleeing from. The very fact that he admits the flight allows the admission of the evidence. Appellant's argument goes to the quality of the evidence of flight. Appellant is saying that merely running away does not prove guilty knowledge of the crime charged -- he is right! It is merely circumstantial evidence of guilt. Mackiewicz v. State, 114 So.2d 684 (Fla. 1959), cert.
den. 362U.S. 965 (1959); Daniels v. State, 108 So.2d 755 (Fla.
(1959); Hernandez v. State, 397 So.2d 435 (Fla. 3d DCA (1981);
Williams v. State, 268 So.2d 566 (Fla. 3d DCA 1972). Thus, using Harqrett and Batey, which allow the evidence of flight as circumstantially proving guilty knowledge, was proper.
The probative value of the evidence is greatly under- @ rated by Appellant. When Appellant fled from Officer Daws in Tallahassee, it was only after Officer Daws had noticed a loose license plate on the floorboard of Appellant's vehicle (R- 4646). The plate turned out to be number 13D 11300, which was connected witha white van used in the Leach abduction and murder. As soon as Daws spotted the tag and started to question Bundy, the flight took place. This flight was only two days after the Leach abduction (R-4643). The flight in Pensacola was only six days after the crime (R-5192). It is easy to see the direction of flight from Lake City to Tallahassee to Pensacola.
Clearly, this circumstantial evidence was stronger than portrayed by Appellant.
To argue that the flight could have resulted from guilty knowledge of a myriad of other crimes Bundy committed, is to carry the issue to the absurd conclusion that flight from a single crime is admissible, but the multiple offender is protected by his very lawless ness.
Under sub-issue B, Appellant contends that the giving of the jury instruction was error. It is difficult to conclude from the record that Appellant objected to the instruction given. This is so because during the charge conference, there is an objection to an instruction on flight, but defense counsel requests a change in that instruction, which the trial court agrees to implement (R-6759). Since there was no objection of record to the instruction which ultimately resulted, the State 0 takes a position that review of this issue is barred by Lucas v.
State, 376 So.2d 1149 (Fla. 1979).
However, even if this issue had been properly preserved, there is a substantial body of law that allows the giving of such an instruction. Spinkellink v. State, 313 So.2d 666 (Fla. 1975), cert. den. 425 U. S. 911 (1975); Villagelieu v.
State, 347 So.2d 445 (Fla. 3d DCA 1977); Williams v. State, supra.
Since there was admittedly evidence of flight, the lower court did not err in allowing such testimony and giving the resulting instruction. This Court must affirm the lower court's ruling.
ISSUE VII
WHETHER THE TRIAL COURT ERRED IN
SENTENCING DEFENDANT TO DEATH.
A. and B. Whether the trial court erred in finding that the crime was especially heinous, atrocious, and cruel.
ARGUMENT
In subsection A of Appellant's challenge of the court's imposition of the death penalty, he urges this Court to find that the aggravating circumstance of especially heinous, atrocious and cruel was not present below. Appellant's next sub-issue concerns the finding made as to the cause of death. Since this second issue is relevant only to the overall finding that the murder was especially heinous, atrocious and cruel, these two subsections will be treated as one issue.
This Court in State. Dixon, 283 So.2d 1 (Fla. 1973), explained the language in Section 921.141(5)(h).
"... (H)heinous means extremely wicked or shockingly evil;... atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with little indifference to, or even enjoyment of, the suffering What is intended to be within these circumstances are, "Those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies -- the consciousness or pitiless crime which is unnecessarily torturous to the victim." Dixon at p. 9 Appellant's victim was a 12 year old child who was abducted from her Junior High School. The evidence indicates that she was transported some distance and that for at least a period of that transportation, she struggled to escape (R- 3955). The evidence further demonstrates that the victim was sexually assaulted prior to her death (R-5354, 5363, 5366, 5375, 5378). She certainly feared bodily injury and death during the course of the abduction. Bundy continued with the infliction of this "with little indifference to, or even enjoyment of the suffering of Kimberly Leach.
These circumstances are more than sufficient to uphold the trial court's finding that the murder was heinous, atrocious, and cruel. Alford v. State, 307 So.2d 433 (Fla. 1975); Goode v.
State, 365 So.2d 381 (Fla. 1978); and Hoy v. State, 353 So.2d 826 (Fla. 1977).
The evidence of homicidal injury to the neck was not the only ground upon which the trial court found the murder to be especially heinous, atrocious and cruel. However, that fact strongly shows the atrocious nature of the crime. Hallman v.
State, 305 So.2d 180 (Fla. 1974). Appellant contends that this finding is not supported by the evidence or the testimony of Dr.
Peter Lipkovic. However, after extensive study of the remains, Dr. Lipkovic concluded that the death occurred from an injury to the neck region (R-4481), The trial court did not err in finding the aggravating circumstance of especially heinous, atrocious and cruel.
C. The trial court did not improperly double the same factual circumstance into two separate aggravating factors,
ARGUMENT
Appellant argues that the trial court improperly "doubled" two aggravating circumstances [conviction of murder while under the sentence of imprisonment and that he had been 0 previously convicted of another capital offense or of a felony involving the use or threat of violence to some person] because both of these circumstances involve the same factual predicate.
In Provence v. State, 337 So.2d 783 (Fla. 1976), this Court found that the trial court improperly "doubled" two aggravating factors: commission of murder in the course of robbery and commission of murder for the purpose of pecuniary gain. This Court apparently felt that the imposition of both of these aggravating circumstances unfairly penalized the defendant because under the circumstances of Provence, one of the circumstances was an integral facet of the other.
Under State. Heqstrom, 401 So.2d 1343 (Fla. 1981), Whalen v. United States, 445 u.S. 684 (1980), and Albernaz v.
United States, 450 U. S. 333 (19811, multiple punishments (or here, aggravating circumstances) may be imposed if the test in Blockburqer v. United States, 284U.S. 299 (1932), is met. In Blockburqer, the same act violates two statutes if each statutory provision requires proof of a fact which the other does not. g.
at 304.
Here, Section 921.141(5) (a) and Section 921.141(5) (b) each require proof of a fact that the other does not. The former requires that the capital felony be committed by a person under sentence of imprisonment, which the latter does not. The latter requires that the defendant be previously convicted of another capital felony or of a felony involving the use OK threat of violence to the person, which the former does not. (The nature of the crime for which a person is imprisoned is irrelevant to the circumstance; what counts is the fact that the defendant is imprisoned at the time he committed his capital felony.) Under the Blockburqer test, the facts involved under each circumstance are irrelevant; a reviewing court may only look to the aggravating circumstances as outlined in the statute.
Moreover, Appellant misapprehends the purpose of Section 921.141(5) (a). The object of this aggravating circumstance must either be to provide the ultimate punishment for those who would murder while imprisoned and for whom no other 0 punishment might provide deterence, or to provide punishment because the rehabilitative process is an obvious waste of time for such an individual, or both. At any rate, there lacks in these circumstances the "one-to-one" correspondence that exists between someone penalized for both robbery, a violent crime, and a crime pecuniary gain, which robbery is and must be. The distinction is, of course, that the crime of robbery is always a crime committed for pecuniary gain, and the two are inextricably related, while the commission of Appellant's capital murder while under the sentence of imprisonment is in no way dependent upon the nature of Appellant's previously committed violent crimes.
The trial court did not err in imposing both aggravating circumstances.
D. The trial court did not err in admitting the testimony of Michael Fisher to show that Bundy was under a sentence of imprisonment.
ARGUMENT
Appellant urges this Court to find that the evidence of imprisonment is insufficient to allow the finding of the aggravating circumstance under Section 921.141(5) (a). At the sentencing proceeding below, the objection was made that the only way the State could prove that Bundy was under a sentence of imprisonment would be to produce the jailer and the fingerprint cards from Colorado. Appellant urges this by analogizing the case to a prosecution for escape. The testimony revealed, pursuant to a warrant, that Michael James Fisher of the District 0 Attorney's Office in Vail Colorado, picked Bundy up at the state penitentiary in Utah. Testimony further reveals that the witness placed Bundy in confinement in Colorado pursuant to the warrant (SR-27). Later, the witness was responsible fora criminal investigation: i.e.# the escape of Theodore Bundy from his Colorado imprisonment (SR-27).
The investigator testified that Bundy escaped from the Garfield County Jail in Glenwood Springs, Colorado. There was no objection to this testimony as hearsay, thus Appellant is not claiming that the witness had no personal knowledge of the escape. Appellant is claiming that the way the state should have proved the fact of escape was by documents showing commitment to 0 custody and by the jailer's testimony. The alternative proof offered by the state was not incompetent and was sufficient to show the aggravating circumstance. The trial court properly found that Theodore Bundy was under a sentence of imprisonment at the time the murder was committed.
E. Whether the trial court erred in denying the defendant's motion to enter alife sentence and to prohibit the penalty phase of the trial.
ARGUMENT
Appellant claims that the trial court erred in denying his motion to enter a life sentence and prohibit the penalty phase of the trial. Appellant simply states that this was error without any citation of authority. Since Appellant deems this unworthy of discussion, the State would simply mention that Appellant has failed in his burden to demonstrate error and that asa result, the ruling below is entitled to the presumption of correctness.
CONCLUSION
Based on the above and foregoing, the judgment of the lower court should be affirmed.
Respectfully submitted,
JIM SMITH
ATTORNEY GENERAL
Ass i & n t / Attorney General The Capitol
Tallahassee, FL 32301
(904) 488-0290
COUNSEL FOR APPELLEE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that atrue and correct copy of the foregoing Brief of Appellee has been forwarded to J, VictorAfricano, Esquire, Post Office Box 1450, Live Oak, FL 32060, this K'fiday of February, 1983.
FILED
MAR 21 1983
IN THE SUPREME COURT OF FLORIDA
THEODORE ROBERT BUNDY,
Appellant, Appeal NO. 59,128 Capital Case Appeal vs. Ninth Judicial Circuit of Florida
STATEOF FLORIDA,
Appellee.
REPLY BRIEF OF APPELLANT
J. VICTORAFRICANO, Esquire PAUL E. RISNER, Esquire Counsel for Appellant Live Oak, Florida 32060
(904) 362-6930
TABLE OF CONTENTS
TABLE OF CITATIONS ii ARGUMENT:
TABLE OF CITATIONS
Adams. Texas, 100 S. Court 2521,
Blockburger. United States, 284 U. S. 299 (1932) 33, 3 4 Br own v. State, (Fla. 1st DCA, filed Feb. 8, 1983)
Duncan v. Louisiana, 391 U, S. 145 (1968) 1 4, 15
Duren., Missouri, 439 U. S, 357 (1979) 1 0, 1 5, 17
Hargrett. State, 255 So.2d 298 (Fla. 3 d DCA, 971) 2 7
Honey v. Superior Court, 616 P, 2 d 1301,1304 11.17 (1980) 1 4
Jent. State, 408 So.2d 1024 (Fla. 1981) 3, 2 4
Key v. State, (Fla. 1st DCA, filed Feb. 8, 1983) FLW 488 4 95
Spinkellink v. Wa inwright, 578 F. 2 d 582 (1978) 15, 16, 17, 18, 1 9
Taylor. Louisiana, 419 U.S. 522 (1975) 15, 1 7
Whalen v. United States, 445 U.S. 684 (1979) 33, 3 4
Witherspoon v. Illinois, 391U. S. 510 (1968) 1 0, 11, 1 2, 1 3, 1 4, 1 5, 1 6
STATUTES
OTHER AUTHORITIES
United States Constitution:
Arrendmnt Six 1 0, 1 3, 14, 1 5, 16, 17, 20, 2 1
Amendment Fourteen 10, 2 1
PRELIMINARY STATEMENT
AS in Appellant's Main Brief, the Appellant, THEODORE ROBERT BUNDY, will be referred to as either the Defendant, the Appellant, or Bundy. The Appellee, the State of Florida, will be referredtoasthe State.
STATEMENT OF THE CASE AND ACT S
The Appellant relies upon the Statement of the Case and Facts contained in his Main Brief.
ARGUMENT
I. THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S SEVERAL MOTIONS TO SUPPRESS THE
TESTIMONY OF CERTAIN WITNESSES WHOSE RECALL
HAD BEEN AFFECTED OR ALTERED BY HYPNOSIS.
Conspicuous by its absence in the State's Brief is any discussion of thecurrenttrend of legal authority thatis coming forth from the Appellate Courts which have dealt with the hypnotically refreshed memories of witnesses in criminal cases. The State is apparently content to rely on what the law in Florida is now, rather than address the Defense's position of what the law in Florida should be, Other than to bring to this Court's attention several recent cases from other jurisdictions, the Defense will not reargue its unrebutted position of what is the current weight of legal authority.
Citing the California Supreme Court's decision in People. Shirley, 31 Cal.2d 18, 641 P.2d 775 (1982), the Michigan Supreme Court in People.
Gonzales, N. W. 2d (Mich., 1982) held thatthe testimony of a witness whose memory has been refreshed through hypnosis is inadmissible.
The Michigan Court applied the test of Frye, United States, 293 F. 1013
(1923) and concluded that:
I'...hypnosis has not received sufficient general acceptance in the scientific community to give reasonable assurance that the results produced under even the best of circumstances will be sufficiently reliable to outweigh the risks of abuse and prejudice. I' (emphasis supplied) Gonzales at 'I...Until hypnosis gains general acceptance in the fields of medicine and psychiatry asa method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy and until the barriers which hypnosis raises to effective cross-examination are somehow overcome, the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases."
(emphasis supplied) Gonzales at In its Brief, the State refers to the "very complete memorandum presented by the State Attorney to the trial court ". That memorandum relied upon the case of Harding. State, 5 Md. App. 230, 246 D.2d 302 (1968) and its progeny. In 1982, the Court of Special Appeals of Maryland unequivocally preceded from Harding in Collins v. State, 447 A.2d 1272 (1982).
! I...After a complete and careful review of the record in this case, as well atthe decisions of other jurisdictions and the scientific literature which has been called to our attention, we are convinced that applying the standards explicated in Frye forth use of hypnosis to restore or refresh the memory of a witness is not accepted as reliable by the relevant scientific community and that such testimony is therefore inadmissible.
To the extent that previous cases in this jurisdiction have permitted the admissibility of hypnotically induced testimony, we hereby overrule those cases,!' Collins at 1283, The Collins Court went on to say that hypnosis may be used only for investigative purposes and underthestrict guidelines, enunciated byDr.
Martin T. Orne, in State. Hurd, 86 N. J. 525, 432 A. 2 d 86 (1981).
Two recent cases emanating from the First District Court of Appeal, State of Florida, under score the Defense's previous request for this Court to make known Florida's position on hypnosis and a new request as to whether Florida follows the "Frye Rule". In Brown v. State, (Fla. 1st DCA, filed February 8, 1983) 8 FLW 475, the Court concludes that, notwithstanding the language in Kaminski v. State, 6 3 So.2d 339 (Fla. 1952), Coppolino v. State, 223 So.2d 68 (FH. 2d DCA, 1968), Jent. State, 408 So.2d 1024, (Fla.1981) and Stevens v. State, 419 So.2d 1058 (Fla. 19821, Florida does not follow the "Frye Rule", but instead follows the "relevancy approach" discussed in McCormick on Evidence, $203 (2nd ed, 1972), whereas in Key v. State, (Fla. 1st DCA, filed Feb. 8, 1983) FLW 488, the Court concludes that Florida does follow the "Frye Rule", but found no basis for applying it to the facts of that case.
This Court should settle once and for all whether Florida does, in fact, follow the "Frye Rule".
Both of these last cited cases dealt with the issue of the admissibility of the testimony of a witness whose memory had been hypnotically refreshed.
The Brown opinion is an exhaustive treatise in hypnosis, likened to the opinions written in the cases citedin the Defense's Main Brief, in which the Court traces the problems inherent in hypnosis and its use in the forensic setting. The Brown Court concluded thatthe question of the admissibility of the testimony of a previously hypnotized witness was to be determined on the basis of its relevance. Both Courts cite the Hurd case with favor and while neither requires that the ORNE guidelines or safeguards be mandatory, they strongly suggest that they be considered by the trial courts in the future in their determination of the reliability of testimony from a witness whose memory has been hypnotically refreshed.
In the Brown case, the Defendant's conviction was reversed because of the questionable hypnosis protocols employed. Brown also quoted with approval the exact language from Hurd which the Defense quoted in its Main Brief at pages 46 and 47. The case was remanded to the trial court to determine whether or not the State could satisfy its burden to demonstrate by clear and convincing evidence thatthe hypnosis session and the use of that evidence would not cause undue prejudice or mislead thejury.
In the Key case, the conviction was affirmed. However, the Court noted that five of the six Hurd safeguards were implemented in the case.
Tragically, the one safeguard which was omitted was the recording of the hypnotic session. Admittedly, the witness' hypnotic session was not for the purpose of helping her to identify the assailant, perse, but when she was hypnotized to relieve her anxieties so she could identify him, the result inthe same.
The failure to record a hypnotic session of a potential eye witness in a criminal case is the most violent violation of the ORNE safeguards. How else can the hypnotic session be adequately preserved so that it can be reviewed to make certain no improper suggestions or clues were given the witness?
Both the Brown and Key cases affirmed the First District decision in Clark. State, 379 So.2d 372 (Fla. 1st DCA 1979) in which the Court held e that witness who had been hypnotized would be allowed to testify and the issue of his credibility was for thejury.
The Brown court stated that the application of the "relevancy approach" was implicit in the Clark case. However, the court expounded on the manner in which a trial court should use the "relevancy approach" to determine the admissibility of such testimony. The court stated that there are two forms of relevancy: logical and legal and any evidence must be both to be admissible.
The Court held thatthe principle of hypnosis was sufficiently reliable to be legally relevant, but added thatthe determination of legal relevance was a two-pronged test; the second prong being the technique or procedure utilized by the hypnotist on the witness.
While the Defense does not necessarily agree that the issue of hypnosis and its application in the forensic setting can be resolved by the "relevancy approach", even under Brown's approach, the Defendant's conviction must be reversed because of the failure of the second prong of the relevancy test.
"Although the principle of hypnosis may itself be reliable and thus probative, our examination of the problems inherent inthe process of hypnosis reveals that admissibility of such testimony will hinge on a case-by-case examination of the technique used to hypnotize the witness. The examination of the particular procedure employed in order to determine its reliability inter relates with the second prong of the relevancy test: legal relevancy. Due to the peculiar nature of hypnosis and its inherent potential pit falls, the admissibility of hypnosis, asa tool for refreshing a witness' memory, is not so much a question of the reliability of the principle of hypnosis as it is a question of the reliability of the particular technique or procedure used ina given case.
Hence the probative value of hypnosis rests on both the reliability of the principle and the technique or procedure employed, both of which are inseparably intertwined. The Court must first evaluate such evidence pursuant to Section 90.403, Florida Statutes, by weighing its probative value in an effort to decide if its admissibility would be substantially outweighed by dangers of unfair prejudice, confusion of the issues, misguidance of thejuryor needless presentation of the issues.
Brown at. (emphasis supplied) The Brown case demands that this case, atthe least, be remanded to the trial court to determine whether the State can fulfill its burden of establishing legal relevance. But, even under the Brown decision, the record in this case clearly demonstrates that the State could not meet that burden, Save and except for tape recording the Keene and Burnette hypnotic episodes, Keene and Burnette, along with the State, violated every other guideline and safeguard recommended in all the recent case law in jurisdictions which still allow witnesses to be hypnotized. Compound that with the fact that C. L. Anderson should never have been hypnotized in the first 0 place, and the prejudicial effect his testimony would have upon the Defense, and the State cannot sustain its burden of establishing legal relevancy under 590,403, Florida Statutes.
In its Brief, the State ignores the legal arguments advanced by the Defense and argues, as it did below, thatthe hypnotic episodes had no effect on C, L, Anderson's testimony. The State argues that Anderson's testimony before andafterthe hypnosis was the same. The fallacy in this position is, first, the definition of "before". The State's definition of "before" is immediately before the first hypnotic session when Anderson made his first statement to Assistant State Attorney Dekle (Defense EX. 2 4). The Defense's definition of 'Before" inthe approximate six months time it took Anderson to have any memory of the alleged abduction at all, The second fallacy on the State's position is its misinterpretation of the Defense's claim "that extensive media coverage created the suggestion which caused C. L. Anderson to confabulate his testimony" (State's Brief at Page 7).
IT is the Defense's claim that the extensive media coverage made Anderson an unlikely candidate for hypnosis and thatthe information he had been exposed to for approximately six months very likely led to his "recalling" under hypnosis facts which were confabulated responses.
The third fallacy in the State's position is that neither Anderson nor his story were the same "before and "after" the hypnotic episodes. For approximately six months before, he had had "nagging doubts ", and "thought he may have seen something", and even in his statement to Dekle, he still has doubt. After he was hypnotized, Anderson had no doubt. He is positive that on February 9, 1978, he saw the Leach girl being led away from the Lake City Junior High School bay man who looked IIa hell of a lot" like Bundy.
After hypnosis he remembered the date, which he could not before; he can describe details of clothing, which he could not before; and most important, he can now "remember" the series of events which led him to be there in the first place when he is told, between the two hypnotic episodes, that his work records revealed he was on duty atthe time he was supposed to have seen the events described.
The State questions that if Anderson's testimony was hypnotically supplemented by external influences, why was not his identification of Bundy and of the football jersey more positive? The answer is found in the response given byDr. Kline atthe suppression hearing and quoted at page 24 of the Defense's Main Brief, The final fallacy of the State's position is that it ignores the issue of an accused's right of confrontation. Anderson himself is not the same "before" and " after ". He was hypnotized, Ashes been discussed in the Defendant's Main Brief, the nature of hypnosis is such thatthe witness becomes absolutely convinced of the truthfulness and accuracy of his recall.
The Defense agrees with the State's statement, "If we exclude those details made clear by hypnosis, we are left with relevant, untainted testimony" (State's Brief at page 8). Certainly, Anderson's pre-hypnotic testimony would have been relevant and certainly not tainted by hypnosis. However, this conceded observation totally ignores the fact thatthe trial court, at the suppression hearing, and thejury, atthe trial, heard his post-hypnotic testimony. The Defense could have had an opportunity to challenge his credibility before, but not after.
Because there is no doubt that hypnosis in the forensic setting has not gained general acceptability in the scientific community and because of all the dangers, such as confabulation, distortion, fantasy, suggestion, and denial of the right of confrontation inherent in the process of hypnosis, the Defense urges this Court to adopt the position enunciated in State.
Mack, 294 N. W. 2d 744 (1980) and now followed in California, Maryland, Michigan and Pennsylvania. An accused's constitutional right to a fair trial and to confront the witnesses against him are too precious to be put in jeopardy bay scientific technique fraught with doubt by its own practitioners.
In the event this Court should decide that Florida does not follow the "Frye Rule", then the Defense would urge that this Court, data minimum, follow the New Jersey approach asses forth in State. Hurd, 86 N. J. 525, 432 A.2d 86 (198l>, and followed in New York. The potential for abuse and misuse of hypnosis is too great not to make the Orne guidelines, assetforth in Hurd, mandatory and to require the proponent of the testimony of a previously hypnotized witness to bear the burden of establishing its admissibility by clear and convincing evidence.
Bundy should be granted a new trial, absent the testimony of C. L.
Anderson.
11. THE TRIAL COURT ERRED IN DENYING
THE MOTION TO LIMIT DEATH QUALIFICA-
TIoNTFTuEF; A LOL wING-RPZ~-Q CATION: AND EXCUSING FOR CAUSE THOSE
JURORS OPPOSED TO THE DEATH PENALTY
NOTWITHSTANDING THEIR ABILITY TO VOTE
FOR GUILT OR INNOCENCE.
A. The issue was effectively preserved at trial. Appellant's Motion to Limit Death Qualification of theJury, together with Defense counsel's specific and timely objections to the exclusion for cause of the venirepersons in question (see Appellant's Main Brief, Page 31) gave the trial judge full and fair notice of the existence and nature of this issue. See Maggard v. State, In his Motion, Appellant stated that the trial court should not "Excuse any jurors whose scruples against a death sentence would not interfere with their ability to fairly weigh the Defendant's guilt or innocence" (R. 1459), which is precisely the same position he takes here. HE based his claim on his Sixth Amendment right toajury representing a fair-cross-section of the community and his Fourteenth Amendment right to due process of law;
the same constitutional grounds he raises here. He relied, in part, in the Motion on Duren v. Missouri, 439 U.S. 357 (1979), as his principal fair-cross section case, as he has in this Appeal; and while citing Witherspoon v. Illinois, 391 U.S. 510 (1968), he clearly regarded its blanket rule as inapplicable to the present case. The entire tone and purpose of the Motion spoke to the inapplicability of the full Witherspoon rule. If Appellant thought that Witherspoon governed in his trial, he wouldn't have filed the motion.
The issue is properly preserved for this appeal.
B. The binding sentencing authority of thejury in Witherspoon wasa central and dispositive factor distinguishing that case from cases arising under Florida's non-binding jury recommendation scheme.
Witherspoon was fundamentally and primarily a case which focused on the Illinois jury ' s final power to sentence the defendant to death. The importance of the jury ' s sentencing authority, which is referred to throughout the case, is reflected in this passage:
"It should be understood that much more is involved here than a simple determination of sentence. For the State of Illinois empowered thejury in this case to answer 'yes' or 'no' to the question whether this defendant was fit to live." Witherspoon, at 522 n.20' NO less an authority than the United States Supreme Court itself recognized the primary importance of the Witherspoon jury ' s sentencing authority when it ruled twelve years later in Adams v. Bxas, 100 S.Ct.2521; 448 U.S.
38; 65 L.Ed.2d. 581 (1980) The Court began its analysis of the Texas death penalty statute by stating that:
"Witherspoon involved astate procedure for selecting jurors in capital cases, where the jury did the sentencing and had complete discretion as to whether the death penalty should be imposed." Adams, at 2525.
Itfurther noted:
I1A juror wholly unable even to consider imposing the death penalty, no matter what the facts of the given case, would clearly be unable to follow the law of Illinois in assessing punishment. Adams at 2526, (emphasis supplied) Comparing the Illinois law involved in Witherspoon with the Texas statute, the Court found that:
(1) The Witherspoon jury assessed punishment atthe same time it rendered its verdict.., (2) The Witherspoon jury was given unfettered discretion to impose the death sentence ornot..,.
and (3) The Witherspoon jury directly imposed the death sentence, 'I and concluded that:
"The jury plays a somewhat more limited role in Texas than it did in Illinois."
Adams at 2526.
The death penalty law at issue in Adams involved a two-phase proceeding. See Tex.Crim, Pro. Code Ann. ss37.071 (Supp. 1980). In the first phase thejury determined guilt or innocence, and if the defendant was found guilty, a second phase was held where evidence pertaining to the sentence was presented. Generally, this inthe same procedure as occurs in Florida, but the similarities in the sentencing phase end there. The Texas jury was required to answer three questions during their sentencing deliberations. If thejury found beyond a reasonable doubt the answer to all three questions was yes, the court had to impose the death penalty. A negative answer bythejury to any one of the questions and the defendant received life imprisonment.
The point is that thejury ' s penalty verdict, under Texas' death penalty statute, was, in its own unique way, binding on the trial court. Even so, the Supreme Court in Adams, in distinguishing the Texas statute from Illinois, found the Texas capital jury ' s role more limited than the Witherspoon jury ' s, and reversed the Adams jury ' s death sentence because of an overbroad rule of exclusion enforced against those opposed to the death penalty. Strictly speaking, Adams was a Witherspoon case and was disposed of assuch, because the Adams jury had sentenced the defendant.
IT is hard to imagine a capital jury witha more limited role in sentencing than the Appellant'sjury and capital juries in Florida generally. Especially when Florida capital juries are compared to the Witherspoon jury ' s sentencing power along the lines of the Adams comparison, Examining briefly the role that capital juries in Florida play in sentencing, we see that these juries' a sentencing verdicts are not binding; that the Florida jury makes no written or oral findings as to which aggravating and / or mitigating circumstances it found to exist, and upon which it relied; that its sentencing recommendation for death can be reached bay simple majority (as opposed to requirements for unanimous death verdicts in Texas and Illinois); that life recommendations are frequently ignored by the trial judge; and that in over a dozen cases defendants who received jury recommendations for life sentences have had judge imposed death sentences upheld by the Florida Supreme Court.
Compared to the Witherspoon jury, Florida capital juries' power to sentence is limited to the point of non-existence. The Florida jury penalty recommendation provides little basis for meaningful appellate review, as required by Profitt v. Florida, 428 U.S. 242 (1974), and if, in fact, Florida juries' death recornmendations were binding, undercurrentjury sentencing procedures, they would almost certainly run afoul of Furman v. Georgia, 408 U. S. 238 (1972), and its progeny, by creating a substantial risk that death sentences might be imposed ina capricious and arbitrary manner.
Witherspoon does not apply to jury selection in Florida because Florida capital juries do not sentence, and because the remedy fora Witherspoon violation is re-sentencing by a properly selected jury, a remedy which serves no useful purpose in Florida when it was the trial judge who imposed the original sentence and would impose the second sentence.
C. Appellant relies upon case law embodying the Sixth Amendment right to ajury representing a fair-cross-section of the community which has developed in the fifteen years since Witherspoon and which was not properly before the Witherspoon Court, It is true that in 1968, the Supreme Court of the United States did not accept the Witherspoon defendant's argument that ajury excluding persons opposed to the death penalty "must necessarily be biased in favor of conviction", and rejected his "competent scientific evidence that death-qualified jurors are partial to the prosecution on the issue of guilt or innocence".
(See Witherspoon at 516-517), However, this result does not affect the Appellant's Sixth Amendment fair-cross-section claim in the present case for the following reasons:
1. TO begin with, Witherspoon was not technically a Sixth Amendment case. Although the Court mentioned the Sixth Amendment, and its reference to thejury ' s role of "expressing the conscience of the community" in assessing punishment suggests that it was applying the cross-section requirement (Witherspoon at 518-519), it could not have been a Sixth Amendment case atthe trial in Witherspoon occured before the Sixth Amendment was held applicable to thestate in Duncan v. Louisiana, 391 U. S. 145 (1968). The Court, two weeks after Witherspoon was decided, declined to give Duncan retroactive effect. DeStefans v. Woods, 392 U. S. 631 (1968). The Witherspoon Court used the language of due process cases, and thus may be viewed as applying the constitutional principles "of due process as seen through the filter of Sixth Amendment values". Hovev v. Superior Court. 616 P.2d.
The requirements of the Sixth Amendment, considerably different from the due process right to an impartial jury involved in Witherspoon, pose a separate constitutional basis to challenge the systematic exclusion of persons opposed to the death penalty.
2. Appellant does in fact rely on a separate constitutional basis for relief as it has been set forth in the line of cases represented by Duncan v. Louisiana, supra; Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 (1979), and which has developed and been applied to thestate since Witherspoon.
3. Appellant does not attempt to prove, as did the petitioner in Witherspoon and Spinkellink v, Wainwright, 578 F,2d 582 (1978) (a case which will be examined extensively below), that capital juries from which persons opposed to the death penalty have been excluded are biased in favor of conviction, or are somehow prosecution-prone. Appellant is not required to present such proof because in Sixth Amendment cross-section cases, "systematic dis proportion itself demonstrates an infringement of the defendant'sinterests in ajury chosen from a fair community cross-section. There is no need to show particularized bias against the defendant. The only remaining question is whether there is adequate justification for this infringement.
Duren at 368 n.26.
4. Instead, Appellant argues thestate bears the burden of justifying the under-representative result " by showing attain ment of a fair-cross-section to be incompatible witha significant state interest". Duren at 368-369. Moreover, the significant state interest asserted must be "manifestly and primarily advanced by those aspects of thejury selection process... that result in the disproportionate exclusion of a distinctive group ". Duren at 367-368.
NO such significant state interest exists which justified the exclusion for cause of the five veniremen in question in this case.
D. The Spinkellink case should not be followed in the present case, because:
1. The petitioner in Spinkellink v. Wainwright, 578 F.2d 582 (1978), complained that the trial judge in his Florida murder case had improperly excluded for cause two venirepersons who testified they would impartially decide guilt or innocence, but would not vote to recommend the death penalty. There is, then, factual similarity between Spinkellink and the present case on this issue.
However, in Spinkellink, the petitioner did not argue that Witherspoon was not entirely applicable because his Florida capital jury did not sentence him, as does Appellant here. Hence, the Fifth Circuit, apparently unaware of the significance of lack of Florida capital juries' sentencing authority, ruled that Witherspoon applied and. that the two venirepersons in question were properly excluded.
Spinkellink at 592-593, Appellant argues, therefore, that Spinkellink can be distinguished, in part, from the present case because neither the petitioner, nor the Fifth Circuit recognized or addressed the importance of thejury ' sentencing role orratherits lack thereof.
2. Unlike Spinkellink, Appellant does not argue that his jury was prosecution-prone.
AS mentioned earlier, a major contention of the Spinkellink petitioner was that his jury was prosecution-prone. Spinkellink at 593-595. The Fifth Circuit rejected this argument, but that rejection does not relate to and must be distinguished from the present case where Appellant does not seek to prove prosecution-proneness.
Indeed, Appellant claims, as he outlined above, that his Sixth Amendment fair-cross-section right, based upon Duren and related cases, does not require a showing of actual bias.
3. The Spinkellink court ' s ruling on the fair-cross-section issue is bad law, based as it is on the falacious and prejudicial presumption that an entire class of venirepersons does not tell the truth during voir dire.
The Court, in Spinkellink, concluded that the two p$ospective jurors, who testified under oath that they would impartially determine guilt or innocence, were properly excluded because:
"Florida apparently has concluded that, if for whatever noble reasons, 111 a venireman cling so steadfastly to the belief that capital punishment is wrong that he would never under any circumstances agree to recommend the sentence of death, it is entirely possible - perhaps even probable - that such veniremen could not fairly judge a defendant's guilt or innocence when a capital felony is charged. Spinkellink at 595.
The Court, in Spinkellink, reasoned that " the State has decided that.. the State's interest in the just and even-handed application of its,.. death penalty statute [is] too fundamental to risk a defcndantpronejuryfromthe inclusion of such veniremen". Spinkellink at 596 (emphasis supplied).
The Fifth Circuit applied its totally unsupported, defendant prone reasoning to the question of a defendant's Sixth Amendment right too representative-cross-section in this way: First, it cited Taylor tothe effect that when a class of venirepersons is excluded from jury service, then thestate must show "weightier reasons" than "merely rational grounds" for such an exclusion. Spinkellink at 597.
What "weightier reasons" did the Fifth Circuit find that tipped the balance in favor of the state's interest in excluding venirepersons who would be impartial as to guilt or innocence, but who would not impose the death penalty? It used its earlier unfounded presumption that this class of persons would lie during voir dire, that they would not be impartial on guilt or innocence, that they would, in effect, nullify Florida's death penalty statute by causing hung juries, and that juries on which they served would be defendant-prone, Spinkellink at 597.
The defendant-proneness analysis concocted bathe Court in Spinkellink, though it certainly may reflect the motivating force behind Florida's exclusionary policy, must be completely rejected.
There was no evidence before the Fifth Circuit thatthe two jurors in question lied when they testified they would be impartial as to guilt or innocence, or that such jurors asa group do not tell the truth during voir dire on this matter, The defendant-proneness suspicion places in question the fundamental reliability and veracity of thejury selection process in all criminal cases. For the Fifth Circuit to be guided by such a suspicion absent any evidence is alone sufficient to dis credit its holding that Florida'sstate interest outweighed petitioner's right to ajury representing a fair-cross-section, Venirepersons, who state under oath thatthe will impartially determine guilt or innocence ina capital case, are entitled to be believed, as they are in all other criminal cases, and not automatically excluded for cause due to some ground less prejudice of thestate relating to venirepersons'attitudes toward sentencing. It should be noted that in non-capital criminal cases, prospective jurors are not systematically queried about their attitudes toward a particular legal punishment, and then excluded, asa matter of law, depending upon how they answer. Would the Spinkellink court approve, for example, of prospective jurors ina robbery case being questioned about possible sentences? Would it permit such jurors to be excluded for cause because they opposed the statutory sentencing scheme in some way? It is unlikely. Why, then, should a similar tactic be allowed on capital cases where the jury doesn't sentence?
The only justification for allowing voir dire in capital cases about possible sentences is when thejury has binding sentencing authority.
The State of Florida'sfear of defendant-proneness of persons who testify they will impartially decide guilt or innocence should not have outweighed the petitioner's right in Spinkellink to a representative jury and does not outweigh Appellant's right to one here.
E. An issue of first impression: One observation made by the State in its Answer Brief is undeniably accurate; the manner in which the issue of a capital jury ' s role in sentencing is linked in this appeal to exclusions for cause during voir dire is a novel one. NO other case in Florida, to Appellant's knowledge, has dealt with the significance of this relationship, If juries in capital cases in Florida aceto be selected as if they have the power to finally sentence guilty defendants, then these juries must actually be given that power, as they have been in virtually all other states (See Appellant's Main Brief, Appendix A). If their sentence recommendations are not to be binding and they are not now, then Florida's capital juries should be selected like any other criminal jury, without regard to possible sentence. The State of Florida has had it both ways with its post- Furman death statute when it comes to excluding for cause persons opposed to the death penalty. It is time for this practice to cease and for Florida a to make a choice.
on this issue.
This is the underlying message of Appellant's argument Accordingly, the five venirepersons in question in the present case, who testified they could impartially decide guilt or innocence, and who were excluded for cause, were excluded in violation of Appellant's Sixth Amendment tothe United States Constitution rights and his conviction must be reversed,
111. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR CHANGE OF VENUE
OR ABATEMENT OF PROSECUTION.
Despite the simple answer of the State to this issue, Appellant believes this to be a struggle of fundamental concepts for which there is no adequate answer currently available. The Appellant reaffirms those arguments made in the Main Brief and contends that the State's superficial answer does not contain a legally substantive rebuttal to those arguments.
The State cites Murphy v. Florida, 421 U. S. 794 (1975) as comparison to the instant case. The "comparison" fails when you compare the two men.
"Murph the Surf!!, as Murphy was known, was something of a folk hero, referred to by the State as "flamboyant". Bundy is not a folk hero and the mere mention of his name to some people conjures up revulsion, fear and hatred. Thus, it was no prejudice to Murphy that people had heard of him, because there was a good chance that those who knew of him regarded him ina positive manner, For Bundy, only those who had not heard of him did not have negative feelings about him. Any knowledge about Bundy was certain to be unfavorable to him, and certain to infect a potential juror's opinion as to Bundy's guilt or innocence.
The State is apparently bewildered as to the argument advanced in the Defense's Main Brief. The Court should recognize thatthe cornerstone to this entire dilemma is the conflict between the First Amendment and the Fifth, Sixth and Fourteenth Amendments. Atthe State concedes in its Answer, "Where could the trial have been transferred ", and "How long would an abatement of prosecution have to last ", are valid questions. Without being glib, the answer to the first question is apparently, "Anywhere but Columbia, Suwannee, Orange, Leon or Dade Counties". That still leaves a substantial number of locations to choose from. The answer to the second question is more a rhetorical question: "How long does a constitutional right retain validity?" That is how long an abatement should last if faced continually with the situation of the instant case and if a defendant'srights have any meaning and are to be protected. AS long atthe pervasive news media coverage persists, the abatement must continue.
Therefore, for the reasons contained herein and in the Main Brief, the conviction of the Appellant must be reversed and the case remanded for new trial, with instructions to preserve the Appellant's right to a fair trial and an impartial juryat all costs; even if that means numerous venue changes ora lengthy abatement. IT is not too onerous a burden to place upon the shoulders of justice.
The judgment and sentence below should be vacated and a new trial granted,
IV. THE TRIAL COURT COMMITTED FUNDAMENTAL
ERROR IN NOT CONDUCTING, ON ITS OWN MOTION,
A "FRYE TEST" CONCERNING THE FIBER ANDSHOE
TRACT EVIDENCE.
The Defense reaffirms the arguments made in its Main Brief, and expressly contends that the State has not presented any legally substantive rebuttal to those arguments.
The State apparently agrees with the Defense that a review by an Appellate Court, of an issue, absent an objection in the lower court, is possible only when the error is fundamental error. The Defense argues that that is the case here. The failure of thecourt, when confronted bay novel, unproven theory of evidence, to conduct a "Frye Test" to determine whether the evidence adduced is legally reliable, was fundamental error. Absent this evidence, Bundy would not have been convicted. That is fundamental.
The trial judge is not an extension of the prosecutor. He ist here to ensure that the rights of all parties, including the defendant, are properly and adequately protected. HE is impartial and when a situation develops that may adversely and unfairly affect aparty, it is his duty to analyze that situation and take the necessary steps to prevent that adversity from occurring unfairly, This duty is not continent upon an objection by the defense.
It is not variable. IT is mandatory.
In the instant case, fiber evidence was presented that purported to show that victim and appellant were in close proximity in time and space at a certain point. Fiber evidence is novel. The fiber analyst had not previously been declared an expert before she handled the evidence. The evidence was highly prejudicial to the Appellant, consisting only of the speculative opinions of MS. Henson as to the degrees of probabilities as to whether Bundy, the van and the Leach girl had come into contact with one another, 0 The fiber evidence was also potentially unreliable, being a novel pseudo science. The potential for unreliability, coupled with the extremely prejudicial nature of the evidence, should have triggered the duty of the court to satisfy its own mind that the evidence was reliable, relevant and admissible, Fiber evidence is so new that the State cannot show any case law to support its opinion that fiber evidence is reliable, Appellant assumes that the State is not attempting to mislead the Court deliberately, but that is the effect of its argument. The State contends that fiber evidence is reliable because hair analysis evidence is reliable. The cases cited, Jent v. State, 408 So.2d 1024 (Fla. 1981) and Peek v. State, 395 So.2d 492 (19801, are hair analysis cases and do not speak to fiber analysis. Despite what the State believes, "hair sample" evidence is not of the same type as shoe track and fiber evidence.
Because the State cannot rebut the argument that fiber evidence is potentially unreliable, Appellant deems that admitted by the State. The State cannot argue, therefore, that the trial court did not commit fundamental error when it failed to conduct a "Frye Test" inquiry to determine whether the fiber evidence was admissible.
Asa final note on the "Frye Test ", in view of the discussion of Frye in the section on hypnosis, Appellant is unsure whether Florida has adopted the Frye standard. Since this issue of fundamental error depends upon Florida invoking and accepting the Frye standard, Appellant urges the Court to definitively accept the Frye standard as the standard for "scientific" evidence in Florida. However, if this Court opts to follow the "relevancy approach" as discussed in Brown, supra, then the trial court should have placed the burden upon the State to establish the admissibility of such fiber evidence by clear and convincing evidence.
Accordingly, if the Court accepts the Frye standard, or the "relevancy approach", the Appellant's conviction must be reversed and remanded with instructions to the trial court to conduct its own inquiry to determine the reliability of the fiber evidence.
V. THE TRIAL COURT ERRED INDENY -
ING DEFENDANT'S MOTION FORA VIEW
Every defendant ina criminal case, especially one on trial for his life, should be given every opportunity to present evidence in his defense in the manner he deems most effective. In denying a view, the trial court prevented the defense from being able to demonstrate to thejury, in an effective manner, its contention that. L. Anderson could not possibly have seen what he said he saw from where he said he saw it, There is no doubt that view would have been inconvenient, but mere inconvenience should not have precluded the defense from effectively presenting a vital part of its case. C. L. Anderson was the linch-pin of the State's case against Bundy. AS stated before, without his testimony, all the other evidence was virtually meaningless.
The State contends that because the road in front of the school and upon which Anderson was stopped, was widened since February 8, 1978, the value of a view was diminished. The type of view which the defense wanted to conduct would not have been affected by the widening of the road. The defense wanted thejury to see where the Leach girl left her homeroom class, walked tothe auditorium, see where she would have been visible from the road and see the distances involved for themselves. The widening of the road would not have had any effect on this.
The view was logically and legally relevant tothe Defendant's case. If there were any minor differences in the setting, the State could argue to they jurythatthe view lacked credibility. IT ' sthe same argument, in reverse, upon which the hypnosis issue was resolved below, The Motion fora View should have been granted and its denial was higha ly prejudicial tothe Defendant's case. Bundy's conviction should be reversed and a new trial granted.
VI. THE TRIAL COURT ERRED IN DENY-
ING DEFENDANT'S MOTION IN LIMINE, TO
EXCLUDE EVIDENCE OF FLIGHT, AND THE
SUBSEQUENT JURY INSTRUCTION ON
FLIGHT BASED UPON THAT EVIDENCE.
A. The Evidence of Flight The Defense reaffirms the argument made in the Defense' Main Brief and expressly states that the State has offered no legally substantive rebuttal to that argument. The Defense answers the bare statements made by the State only to prevent the State from misleading this Court as to the nature of the argument.
In Defense' Main Brief, it was argued thatthe State misinterpreted the opinions in Hargrett v. State, 255 So.2d 298 (Fla, 3d DCA, 1971), and Batey v. State, 355 So.2d 1271 (Fla. 1st DCA, 1978). The State, lacking any substantive argument to oppose the Defense' Motion in Limine to exclude Evidence of Flight and the subsequent jury instruction on flight based upon that evidence, resorted to an attempt to mislead the trial court by boldly asserting that they had case law to support their argument. The Batey and Hargrett cases, cited by the State to support their contention that the evidence of flight should be admitted, never speak to the question of admissibility.
The trial court, successfully misled by the State, misapplied those cases and ruled in favor of the State. This ruling was in error.
The general rule in Florida is that relevancy is the test of admissibility.
The Defense reaffirms its argument that the evidence was irrelevant, more prejudicial than probative, and therefore, inadmissible under the rules of evidence in this jurisdiction.
The State admits that flight is not probative of any particular crime, particularly the crime charged. There can be thousands of factors that may 0 combine to produce the reaction of flight to a given instance. To say that flight may be used to infer guilt ist o reduce the entire spectrum of human emotions and reactions down to one explanation. This is an oversirnplification of the human experience.
The State argues, condescendingly, thatthe idea that defendant may be protected by multiplicitous crimes isabsurd, and if that were true we would agree. However, the State misses the point. The State may not attempt to prove by inference, innuendo and aspersion what it cannot prove by substantive, relevant evidence, The evidence of flight was not competent evidence to prove that Bundy had guilty knowledge of the crimes charged.
Because it was not probative of the crimes charged, but rather tended to paint Bundy asa desperate character in the eyes of thejury, it was too prejudicial to have even remote evidentiary value in this case.
AS stated in the Defense' Main Brief, it is unfair and an unconstitutional denial of due process to require that Bundy, when faced with this situation, must prove his innocence. Further, to require that this proof be given in the face of incompetent evidence based upon mere speculation, conjuration, and innuendo is contrary to every tent of American Jurisprudence. This Court must hold that the "Motion in Limine" was improperly denied.
B. The Instruction of Flight The Defense reaffirms the argument made in its Main Brief and expressly states that the State has offered no substantive legal rebuttal to that argument. The State misses the point of the Defense argument once again.
The State argues that because inference of flight was admitted into evidence by the trial court, an instruction was proper. Asfaras this tunnel-vision argument goes, it is correct; but the point isthatthe evidence of flight 0 should never have been admitted. Because it was error to admit the evidence 0 of flight into the record, it was compound error to give the instruction on the evidence of flight.
Because the State chooses not to rebut the argument contained in the Defense' Main Brief, it is assumed that the State agrees with the contention made. Accordingly, the Defense again argues that the evidence of flight was irrelevant and, therefore, improperly admitted.
I The instruction on flight was compound error because it was given asa result of improperly admitted evidence.
The Defendant demands that he be given a new trial exclusive of any purported evidence of "flight" and absent any instruction on flight.
VII. THE TRIAL COURT ERRED IN SENTENC-
ING THEDEFENDANTTO DEATH.
A, The trial court did not establish thatthe crime was especially heinous, atrocious and cruel.
The Appellant reaffirms the arguments made inthe Main Brief and expressly contends that the State has offered no legally substantive rebuttal to those arguments.
The State apparently follows the old maxim: When the law is against you, argue the facts and when the facts are against you, argue the law. Apparently, when both are against you, argue speculation. The State's answer to the arguments in Appellant's Main Brief, VII, $ A & B, is to speculate on what might have been, because there is no proof, no evidence, to support the sentence of death.
The State speculates thatthe victim struggled to escape (R. 3955). They base that speculation upon the fact that van was alleged to have contained Theodore Bundy and the victim when it crossed the center line once or twice as it travelled down the highway. How tenuous can an argument be?
First of all, the testimony of Jacqueline D. Moore was incredible, if not incredulous. When she first reported the incident to Investigator Daugherty on March 3, 1978 (R.4266), she did not relate having "a mental picture in her mind" of the expression on the face of the man driving the van. She further testified that she had seen Bundy's picture on television and in newspapers numerous times (R, 427 9), but never drew any connection to this "mental picture'' until she saw a picture of Bundy in the newspaper and on television on January 18, 1980 (R, 4280), in which she saw the same Based upon this extremely tenuous and doubtful identification, the State speculates that Mrs. Moore's account that the van crossed the center line is evidence that the Leach girl must have been struggling, The State also speculates that the victim was sexually assaulted prior to death and that she suffered because of that fact. Without engaging ina thorough discussion of the psychological aberration known as necrophilia, it is entirely possible that any sexual assault which may have occurred only occurred after death, Assuch, no suffering on the part of the victim would have taken place. Absent any evidence to show, beyond a reasonable doubt that the alleged assault took place prior to death, it is error to speculate that the victim suffered in such a manner.
The State speculates that MS. Leach feared bodily harm and death during the course of the abduction, Again, the State has no way of proving that argument, MS. Leach may have been unconscious or dead within moments of her alleged abduction; she may have accepted as the premise for her leaving the school some reason that does not inspire fear; or she may have been unable to comprehend the apparent situation in which she found herself. The possibilities are endless and it cannot be shown beyond a reasonable doubt that she lived her last moments in the grip of fear and apprehension.
The State argues that these bald assertions are enough to support the finding that the death was "heinous, atrocious and cruel". If this hypothetical the State constructed is true, then the death penalty might be warranted.
However, this hypothesis bears no relation to the facts adduced at trial, which were limited to speculation by the State's forensic pathologist that MS.
Leach died asa result of "homicidal violence to the neck region, type undetermined'' (R. 4481). This speculation was sufficiently rebutted by Dr.
Joseph Burton, a medical examiner from Atlanta, Georgia, and an,?expert in forensic pathology (R. 6029-6055). DR. Burton concluded that there was no way to determine any actual cause of death because of the condition of the
B. The Trial Court erred in finding that death occurred asa result af homicidal injury to the neck region of the victim.
DR. Burton's testimony was that there was no way to conclude, as the State's pathologist had done, that the alleged wound to the neck was the cause of death. The trauma could just as easily and likely have occurred as a result of insect and small animal scavenging (R. 6045-6046). Finally, any injury done to the neck could have occurred just as likely after death
(R. 6048).
This was more than enough rebuttal to raise a reasonable doubt in the mind of the average reasonable trial judge. The court clearly erred in finding that, asa matter of fact and law, the death was asa result of the alleged wound to the neck region.
What the State is left with is exactly what they started with; the fact that the death occurred. That is the only fact probable beyond a reasonable doubt. The State cannot argue that because a death occurs it is necessarily heinous, atrocious, and cruel unless it can be proven otherwise, This argument defies logic.
The State does manage to cite one case in support of its argument;
Hallman v. State, 305 So.2d 180 (Fla., 1974). This case is of precious little value to this argument, however, because it is so factually dissimilar. The facts of Hallman show that the perpetrator cut the throat of the victim numerous times witha broken piece of glass. The facts of the instant case show that a victim died; nothing more. Hallman is inapplicable to the instant case.
0 Because the death and its attendant circumstances were not proved beyond a reasonable doubt, the trial court could not conclude that death occurred asa result of any specific injury and then use that conclusion as an aggravating factor in the penalty and sentencing phases of this trial.
Accordingly, because this fact was not proven beyond a reasonable doubt, thejury and the judge, by thecourt ' s own instructions, were precluded from considering this fact as an aggravating factor in support of a death sentence for Bundy (RP 135 & 195).
Therefore, the sentence must be vacated and the case remanded for resentencing with instructions toentera sentence of life imprisonment.
C. The first two findings of aggravating circumstances in the trial court's sentence involved the same convicted act and this constituted an impermissible doubling of aggravating circumstances.
The State argues that Provence v. State, 337 So.2d 783 (Fla. 1976) does not apply to the instant case. It is interesting to note that the State's argument is based solely upon a perceived distinction between Provence and the instant case, and the State has produced no case law to support this argument. Accordingly, the Appellant reaffirms the argument contained in the Main Brief, and expressly contends that the State has offered no legally substantive rebuttal to that argument.
The State asserts tangential relationship between multiple punishments for the same crime and compounding aggravating factors in sentencing a capital felon. Citing Blockburger v, United States, 284 U.S. 299 (1932), as expressed by Whalen v. United States, 445 U. S. 684 (1979), the State seeks to persuade the court thatthe Blockburger test, which provides that two separate offenses may be punished with consecutive sentences, should be used to allow the doubling of aggravating factors which occurred in the instant case.
0 However, even assuming that aggravating factors and consecutive sentences are analogous, a proposition with which Appellant dis agrees, an analysis of the Whalen case shows that Blockburger would not apply here.
(Whalen, at 693-694) The State's final contention, that Section 921,141(5) (a) Florida Statutes, provides the death penalty for those to whom the rehabilitative process is an "obvious waste of time", is outrageous and extreme in its conclusion and unsupported by facts. The Appellant may be the perfect candidate for serious rehabilitation. Until some quantitative measure of that capacity is determined, the State must not be allowed to arbitrarily decide who may be rehabilitated and who may not.
The trial court erred in doubling an aggravating factor while determining the sentence for the Appellant. Accordingly, the Appellant's sentence must be vacated and the case remanded for resentencing.
D. The trial court erred in admitting the testimony of Michael James Fisher to prove an aggravating factor in the penalty phase,
E. The trial court erred in denying the defendant's Motion to Enter Life Sentence on verdict and to prohibit penalty phase of trial.
The State has chosen not to respond in any legally substantive manner tothe Appellant's arguments under these sections. The Appellant therefore, reaffirms the arguments made in the Main Brief and demands the relief prayed for atthe end of both sections,
CONCLUSION
For the reasons set forth in the foregoing arguments and citations of authority, it is respectfully submitted thatthe conviction, judgment and sentence of THEODORE ROBERT BUNDYfor the kidnapping and murder of Kimberly Diane Leach should be vacated and set aside and the cause remanded fora new trial.
Respec fully s omitted, OR AFRICAN, Esquire PAUU, RISNER, Esquire Counsel for Defendant P, 0. Box 1450 Live Oak, Florida 32060
(904) 362-6930
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that atrue and correct copy of the foregoing Reply Brief of Appellant has been furnished to the Attorney General of the State of Florida, The Capitol, Tallahassee, Florida, by hand delivery on this 21st day of March, 1983.
xc: Theodore Robert Bundy
THEODORE ROBERT BUNDY, Appellant, STATE OF FLORIDA, Appellee.
[May 9, 19851
ADKINS, J.
This is an appeal by Theodore Robert Bundy from his conviction of first-degree murder and from the trial judge's imposition of the death sentence after the jury had recommended death. We have jurisdiction. Art. V, 5 3(b)(1), Fla. Const.
On February 9, 1978, Kimberly Leach, age 12, was reported missing from her junior high school in Lake City, Florida. Two months later, after a large scale search, the Leach girl's partially decomposed body was located ina wooded area near the Suwanee River, Suwanee County, Florida.
On July 21, 1978, Bundy was indicted for the murder and kidnapping of Kimberly Leach. Trial was set in Suwanee County, Florida. Thereafter, Bundy moved for change of venue or, in the alternative, for abatement of prosecution. The motion for abatement of prosecution was denied. However, 'the requested venue change was granted and the case transferred to the circuit court in Orange County, Orlando, Florida. There Bundy was convicted of kidnapping and first-degree murder. The jury recommended death. Bundy was subsequently sentenced to a term of life imprisonment for the kidnapping conviction and death for the murder.
The events and evidence leading to the investigation, trial, and conviction of Bundy are as follows: On February 15, 1978, Bundy was arrested in Pensacola, Florida, after fleeing from a stop made by an officer whose suspicions had been aroused.
At that time Bundy identified himself to the officer as one Kenneth Misner. Over the next several days Bundy was extensively interviewed by officers from the Pensacola and Tallahassee Police Departments and the Leon County Sheriff's Office. During this time he revealed his true identity. It was learned that Bundy was wanted for escape and homicide in Colorado and was a suspect in thirty-six sex-related murders in the northwest United States.
During these interviews and thereafter, Bundy also became the prime suspect in the January 1978 murders of the Chi Omega Sorority members in Tallahassee. Later Bundy was indicted, convicted, and sentenced to death for the Chi Omega murders. We affirmed his convictions and sentences. Bundy v. State, 455 So.2d 330 (Fla. 1984), herein called Bundy v. State - Following Bundy's arrest in Pensacola, Detective Parmenter of the Jacksonville Police Department reported to Leon County authorities that on February 8, 1978, his fourteen-year-old daughter had been approached ina shopping center parking lot in Jacksonville by a man driving a white van. The man had fled when the girl's brother arrived. The teenagers were able to record the license tag numbers on the van. The tag had been reported stolen from a Tallahassee residence near the Chi Omega Sorority house on January 1 3, 1978, At the suggestion of Leon County authorities, Detective Parmenter agreed to have his children hypnotized. After the hypnotic session, each child was asked to separately make a police composite of the man they had seen on February 8, 1978.
These composites were introduced into evidence at trial. Later, during a photo review conducted by the Leon County Sheriff's Department, both Parmenter children picked out the picture of Bundy as the man they confronted on February 8, 1978, with the white van.
On February 11, 1978, Officer Dawes of the Leon County Sheriff's Department was patrolling in an unmarked car in an area of Tallahassee. He observed a man, whom he identified at the trial as Bundy, locking or unlocking a car door. Dawes asked the man for identification and the man replied he had none. Dawes then shined his flash light into the car and spotted a license tag on the floorboard. The tag number matched the one which had been reported by the Parmenter children. When Dawes went to his car to run a radio check on the tag, the man fled.
Richard Shook, the manager at the Florida State University Media Center, testified at trial that in early February of 1978a van belonging to the Center disappeared. The van was discovered several days later, taken into custody, and processed for physical evidence. Fingerprints and hair sample comparisons taken could not be linked to Bundy or the victim. Soil samples taken from the van were different from the soil samples taken from the crime scene. Blood stains on the van's carpet were found to be group B blood. The Leach girl had that type as does over fifteen percent of the human population. In addition, analyst Mary Hinson testified that it was extremely probable that both Bundy's and Leach's clothing had come in contact with the van's carpet and that the clothing of each had probably come into contact with each other.
The state offered the testimony of two Lake City Holiday Inn employees and the state's handwriting expert, John McCarthy.
These witnesses established that Bundy had registered at the Lake City Holiday Inn on February 8, 1978, under another name.
Prior to Bundy's indictment on July 21, 1978, for the Leach murder and kidnapping, only one witness placed Bundy and the white van at the scene of the Lake City Junior High School on the morning of February 9, 1978. Chuck Edenfield, a school crossing guard at the junior high school, testified that he saw a man whom he identified as Bundy driving a white van in front of the school.
The state's one eyewitness to the abduction of Kimberly Leach was Clarence Anderson. On July 1 8, 1978, Anderson reported to the Lake City Police Department that the profile of a person he had seen on a television newscast bore a striking resemblance to the man that he had observed witha girl near the Lake City Junior High School several months earlier. Assistant State Attorney Dekle asked Anderson to undergo hypnosis to refresh his memory. Anderson agreed and was hypnotized twice. Thereafter, he stated that on February 9, 1978, he noticed a man leading a young girl into a white van near the Lake City Junior High School. Anderson identified the young girl as Kimberly Leach and the man in the van as Theodore Bundy.
As his first point on appeal Bundy argues that the trial judge erred in denying Bundy's several motions to suppress the testimony of certain witnesses whose recall had been affected or altered by hypnosis. The defense contended that due to the lapse of time between the disappearance of the Leach girl and the revelation of Anderson almost six months later, the massive amount of information about the events that Anderson had ingested during that period of time, and the blatant misuse of hypnosis by those who had facilitated the sessions, a substantial likelihood of an irreparable in-court misidentification of Bundy by Anderson would occur. In his argument before the trial court, Bundy relied on the case of Neil. Biggers, 409 U.S. 188 (1972). In Neil. Biggers the United States Supreme Court outlined the factors to be considered by the trial court in determining whether an identification was reliable even though the confrontation procedure was suggestive. The Court stated:
[Tlhe factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
At the time of the suppression hearing in this case, the greater weight of legal authority was that the hypnotizing of a witness went to the credibility of the witness and not to the admissibility of his testimony, but, a number of jurisdictions have recently looked at the use and misuse of hypnosis in the forensic setting and altered this view. In State. Mack, 292 N.W.2d 764 (Minn. 1980), the Minnesota Supreme Court addressed the issue of the use of hypnotically refreshed testimony as one of first impression. The question certified to the Mack court was whether a previously hypnotized witness may testify ina criminal proceeding concerning the subject matter addressed at the pretrial hypnotic interview. The record before the Mack court contained the opinion of no less than five experts in hypnosis and memory retrieval. The court elected to view the issue as going to the admissibility of the witness' testimony and not its credibility. The cou2t adopted the proposition advanced by the defense that the doubtful reliability of hypnosis prompted recollection raised an admissibility question which should be governed by the standards announced by the District of Columbia Circuit Court of Appeal in Frye. United States, 293 F. 1013 (D.C. Cir. 1923). Under Frye the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.
In Bundy v. State - I, we discussed the Frye test of general scientific acceptance. We noted that recent judicial treatment of hypnosis in connection with the presentation of eyewitness testimony in court 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. Some jurisdictions have held that the testimony of witnesses who have undergone hypnotic memory enhancement is inadmissible - per either because the technique has not been established as reliable under Frye or because the scientifically recognized danger of unreliability of such testimony outweigh its probative value as a matter of law, or fora combination of such reasons. - See, e.g., People. Shirley, 31 Cal. 3d 641 P.2d 775, 181 Cal.
Rptr. 243, cert. denied, 458 U.S. 1125 (1982); People.
Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982). We believe a discussion of the rationale underlying some of these particular decisions is warranted.
In early 1981, the Arizona Supreme Court handed down its decision in State. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981).
The court addressed the rationale of Harding. State, 5 Md. App.
230, 246 A.2d 302 (1968), cert. denied, 395 U.S. 949 (19691, which was the earliest case deciding the issue of admissibility of testimony offered by witnesses who have undergone hypnosis in an attempt to increase their memories concerning events about which they may testify. The Mena court viewed the Harding court's handling of the issue as cursory. The Mena court stated:
None of the early cases following Harding which approved the admission of testimony from previously hypnotized witnesses contain any analysis of the effects of hypnosis or even acknowledge its power to distort memory...
Accepting a witness' statement that he is testifying from his own recollection requires the assumption that the witness is capable of making a determination that what he perceives as his recollection actually came from his prior observations as opposed to impressions planted in his memory through hypnosis. Such an assumption is contrary to the opinion held by many authorities that a witness will recall memories fabricated under hypnosis as his own recollection and will be unable to distinguish his true memories from pseudo memories implanted during hypnosis..
The faith which the above courts placed in the power of cross-examination also seems misplaced. One article claims that "[tlhe subsequent opportunity for cross-examination at the trial is virtually ineffective asa means of assuring no false suggestions have been implanted."
128 Ariz. at 230, 624 P.2d at 1278 (citations omitted). The Court of Special Appeals of Maryland in Collins v. State, 52 Md.
App. 186, 447 A.2d 1272 (1982), has since overruled Harding and held that the use of hypnosis to restore or refresh the memory of a witness was not shown to be accepted as reliable by the relevant scientific community, and thus such testimony was inadmissible.
In adopting an inadmissible per se rule the Mena court noted:
The determination of the guilt or innocence of an accused should not depend on the unknown consequences of a procedure concededly used for the purpose of changing in some way a witness' memory.
Therefore, until hypnosis gains general acceptance in the fields of medicine and psychiatry asa method by which memories are accurately improved without undue danger of distortion, delusion or fantasy, we feel that testimony of witnesses which has been tainted by hypnosis should be excluded in criminal cases.
Id. at 231, 624 P.2d at 1279. The court also found that the confrontation clause of the sixth amendment of our Federal Constitution required the exclusion of hypnotically tainted testimony. - The Arizona Supreme Court again addressed the issue in State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982). In its original opinion the Collins court reaffirmed its decision in Mena. Ina supplemental opinion the court modified its original inadmissible - perse rule and added the exception that "hypnosis does not render the witness incompetent to testify to those facts demonstrably recalled prior to hypnosis." - Id. at 209, 644 P.2d at 1295. The Collins opinion contains most of the relevent excerpts from the scientific community on this subject. These authorities reveal that hypnosis subjects are often so susceptible to suggestion and receptive to the hypnotist's verbal and non verbal communications that they may respond in accordance with what he or she perceives the desired response to be in order to please the hypnotist.
This may even occur in response to implicit stimuli unintentionally emanated from the hypnotist. Another phenomenem which often occurs is the willingness of subjects to confabulate, or "fill in the gaps" in their memories. The following illustrates this situation:
The hypnotic suggestion to relive a past event, particularly when accompanied by questions about specific details, puts pressure on the subject to provide information for which few, if any, actual memories are available. This situation may jog the subject's memory and produce some increased recall, but it will also cause him to fill in details that are plausible but consist of memories or fantasies from other times. It is extremely difficult to know which aspects of hypnotically aided recall are historically accurate and which aspects have been confabulated.... Subjects will use prior information and cues in an inconsistent and unpredictable fashion: in some instances such information is incorporated in what is confabulated, while in others the hypnotic recall may be virtually unaffected.
State. Hurd, 86 N.J. 525, 538-539, 432 A.2d 86, 92-93 (1981)(quoting Orne, The Use and Misuse of Hypnosis in Court, 27 Int'l J. Clinical & Experimental Hypnosis 311, 317-318 (Oct.
Courts have expressed concern that the recall induced by hypnosis may be totally incorrect, State. Grier, 129 Ariz. 279, 630 P.2d 575, 578 (App. 1981), and that the subject can willfully lie. Hurd, 86 N.J. at 538, 432 A.2d at 92. In addition, there is the concern that hypnosis is often thought by lay persons to be a magical thing which can produce fantastic recall and startling results. Collins, 132 Ark. at 186, 644 P.2d at 1272.
A greater concern is that the jury is likely to place undue emphasis on what transpired during a hypnotic session. Dilloff, The Admissibility of Hypnotically Influenced Testimony, 4 Ohio N.U.L. Rev. 1, 2 (1977).
The courts of some jurisdictions have held that hypnotically aided testimony is admissible if certain strict safeguards in procedure are followed which are supposed to minimize the recognized danger of unreliability. - See, - Hurd; Polk v. State, 48 Md. App. 382, 427 A.2d 1041 (1981). In Hurd, the Supreme Court of New Jersey rejected the rigid Frye rule adopted in Mack and Mena. The court found that "the purpose of using hypnosis is not to obtain truth, asa polygraph or 'truth serum' is supposed to do". 86 N.J. at 537, 432 A.2d at
92. It recognized that hypnosis can legitimately be employed as a means of overcoming amnesia and restoring the memory of a witness. The Hurd court stated:
In light of this purpose, hypnosis can be considered reasonably reliable if it is able to yield recollections as accurate as those of an ordinary witness, which likewise are often historically inaccurate. Based on the evidence submitted at trial, we are satisfied that the use of hypnosis to refresh memory satisfies the Frye standard in certain instances. If it is conducted properly and used only in appropriate cases, hypnosis is generally accepted asa reasonably reliable method of restoring a person's memory.
Having determined that the use of hypnosis to aid a witness met the Frye rule in certain instances, the Hurd court went on to quote elaborately from the testimony of Dr. Orne, one of the defense's experts. One's testimony in Hurd and the procedural guidelines which the Hurd court adopted were consistent with the testimony of Bundy's experts, Drs. Kuypers and Kline.
The Hurd court adopted the following rule:
Whenever a party ina criminal trial seeks to introduce a witness who has undergone hypnosis to refresh his memory, the party must inform his opponent of his intention and provide him with the recording of the session and other pertinent material. The trial court will then rule on the admissibility of the testimony either at a pretrial hearing or at a hearing out of the jury's presence.
In reviewing the admissibility of hypnotically refreshed testimony, the trial court should evaluate both the kind of memory loss that hypnosis was used to restore and the specific technique employed, based on expert testimony presented by the parties. The object of this review is not to determine whether the proffered testimony is accurate, but instead whether the use of hypnosis and the procedure followed in the particular case was a reasonably reliable means of restoring the witness' memory.
Id. at 543, 432 A.2d at 9 5 (footnote omitted).
The Hurd court went on to elaborate on how the trial court should implement this rule. First, the court should determine whether hypnosis should have been used on the witness in the first place, and, once it is determined whether the witness was one who would yield normal recall with properly administered hypnosis, determine whether the procedures followed were reasonably reliable. - Id. at 543-44, 432 A.2d at 95-96. The Hurd court adopted strict procedural safeguards set forth in the Orne affidavit and mandated compliance with these safeguards by the proponent of testimony enhanced by hypnosis. First, an independent psychiatrist or psychologist, not regularly employed by the prosecution or defense, should conduct the interview.
Second, any information transmitted to the hypnotist concerning the case must be recorded in some manner. Third, the hypnotist should derive as detailed a statement as possible from the witness prior to induction. Fourth, all meetings between the hypnotist and subject must be recorded. Finally, only the hypnotist and the subject should be present during the hypnotic encounter. The court cast the burden of proof on the proponent of such evidence to establish admissibility by clear and convincing proof.
The Hurd court justified where it was placing the burden by stating:
We recognize that this standard places a heavy burden upon the use of hypnosis for criminal trial purposes.
This burden is justified by the potential for abuse of hypnosis, the genuine likelihood of suggestiveness and error, and the consequent risk of injustice.
Hypnotically refreshed testimony must not be used where it is not reasonably likely to be accurate evidence. The burden of proof we adopt here will assure strict compliance with the procedural guidelines set forth in this opinion. It will also limit the admissibility of this kind of evidence to those cases where a party can convincingly demonstrate that hypnosis was a reasonably reliable means of reviving memory comparable in its accuracy to normal recall.
Id. at 546-47, 432 A.2d at 97 (footnote omitted).
At least two state supreme courts have definitively rejected the analysis espoused in Hurd. In Commonwealth v.
Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), the Pennsylvania Supreme Court opted to follow the rationale of Mack and Mena.
The court stated:
The Hurd court's rationale that hypnotically refreshed recollection might as well be admissible since ordinary eyewitness accounts are also vulnerable to error and inaccuracies does not do full justice to the fact that "the traditional guarantees of trustworthiness as well as the jury's ability to view the demeanor of the witness are wholly ineffective to reveal distortions of memory induced by the hypnotic process."... The probative worth of the hypnotically-adduced evidence cannot overcome the serious and fundamental handicaps inherent therein.
While we do not want to establish a per se rule of inadmissibility at this time, we will not permit the introduction of hypnotically-refreshed testimony until we are presented with more conclusive proof than has been offered to date of the reliability of hypnotically-retrieved memory.
In Nazarovitch a witness came forward three years after the murder of a twelve-year-old girl and told police she might know something about the murder. Prior to this time, this witness had been questioned on several occasions but had provided no significant information. She was then hypnotized by two state-sponsored hypnotist on four separate occasions and, on the basis of her hypnotically refreshed recollection, Nazarovitch and others were charged with the murder.
The California Supreme Court also rejected the application of the Frye rule as it had been applied in Hurd and opted to follow Mack and Nazarovitch in its decision in People. Shirley, 31 Cal.3d 18, 641 P.2d 775, 181 Cal. Rptr. 243, cert. denied, 458 U.S. 1125 (1982). The court declined to follow the effort to develop a set of safeguards sufficient to avoid the risks inherent in admitting hypnotically induced testimony, stating that it had not been persuaded that the Hurd requirements would forestall the dangers at which they were directed or address all the dangers of hypnosis involved. Accordingly, the court stated:
[Wle observe that certain dangers of hypnosis are not even addressed by the Hurd requirements: virtually all of those rules are designed to prevent the hypnotist from exploiting the suggestibility of the subject; none will directly avoid the additional risks, recognized elsewhere in Hurd, that the subject
(1) will lose his critical judgment and begin to credit "memories" that were formerly viewed as unreliable, (2) will confuse actual recall with confabulation and will be unable to distinguish between the two, and (3) will exhibit an unwarranted confidence in the validity of his ensuing recollection....
Lastly, even if requirements could be devised that were adequate in theory, we have grave doubts that they could be administered in practice without injecting undue delay and confusion into the judicial process....
... [W]e join instead a growing number of courts that have abandoned any pretense of devising workable "safeguards" and have simply held that hypnotically induced testimony is so widely viewed as unreliable that it is inadmissible under the Frye test.
In Bundy v. State - I, this Court discussed Shirley and also the decision of Brown v. State, 426 So.2d 76 (Fla. 1st DCA 1983), from the Florida First District Court of Appeal in which that court adopted the theory that safeguards could be followed to avoid the recognized dangers of potential improper prejudice. In this Court's Bundy v. State - I decision dealing with the Chi Omega murders we were not faced with the issue confronting us in this appeal. We specifically recognized that we were not deciding whether the enhancement of a subject's memory by hypnosis is evidence which must meet the Frye test of general scientific acceptance in order to be admissible. The witness in the Chi Omega case repudiated any independent personal knowledge of the details elicited during the hypnotic trance and the trial judge was satisfied that her trial testimony was based on her own recollection unaffected by the hypnotic experiment. Under those circumstances we held that the fact that the hypnosis took place was a matter relating only to the weight of the testimony and not to its admissibility.
In the present case we are faced witha witness whose memory has been "refreshed" or "enhanced" through state-sponsored hypnosis. Bundy's experts described the numerous inappropriate procedures and questions utilized by the social workers who administered the hypnosis to the witness, C. L. Anderson, in their attempts to enhance Anderson's recall through hypnosis.
Both experts also gave their opinion that Anderson should never have been hypnotized in the first place because of the lapse of time between the event he was attempting to remember and the hypnotic episodes and because of all the information he had learned about the event during that intervening period of time.
The experts' opinion was that Anderson's testimony was unreliable.
We are swayed by the opinions of the courts of other jurisdictions that have held that the concerns surrounding the reliability of hypnosis warrant a holding that this mechanism, like polygraph and truth serum results, has not been proven sufficiently reliable by experts in the field to justify its validity as competent evidence ina criminal trial. Nor can we agree that employing safeguards has been shown to insure that hypnotically recalled testimony is reliable at the present time.
The Michigan Supreme Court recently joined the growing number of jurisdictions that hold that the testimony of a witness whose memory has been refreshed through hypnosis is inadmissible. We feel that court's conclusion in People. Gonzales, 415 Mich.
615, 329 N.W.2d 743 (1982), apply describes our view on this issue. The court stated:
Hypnosis has not received sufficient general acceptance in the scientific community to give reasonable assurance that the results produced under even the best of circumstances will be sufficiently reliable to outweigh the risks of abuse and prejudice.
... [Until hypnosis gains general acceptance in the fields of medicine and psychiatry asa method by which memories are accurately improved without undue danger of distortion, delusion, or fantasy and until the barriers which hypnosis raises to effective cross-examination are somehow overcome, the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases.
Id. at 626-27, 329 N.W.2d at 748. For these reasons, we likewise hold that hypnotically refreshed testimony is - per-se inadmissible ina criminal trial in this state, but hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis.
We must now consider whether the inadmissibility of posthypnotic testimony is to be retrospectively or prospectively applied. The Arizona Supreme Court in Collins thoroughly analyzed this issue and we agree with that court's conclusion that this unforeseen change in the law and the burden that retrospect ive application would place on the administration of justice and the need for finality in criminal cases support a holding of prospective application only. In Collins the court looked to the criteria established by the United States Supreme Court to guide us in determining when principles should be retroactively applied. This process involves an examination of:
(1) the process to be served by the new standard; (2) the extent of the reliance by law enforcement authorities on the old standards:
and (3) the effect on the administration of justice of a retroactive application of the new standard. See Brown v.
Louisiana, 447 U.S. 323, 328 (1980); Stovall v. Denno, 388 U.S.
293 (1967). We have also relied on these essential considerations in our prior decisions. - See, - e.g., Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449U. S. 1067 (1980). The purpose of our ruling is to exclude from a criminal trial posthypnotic testimony because of its basic unreliability. We do not feel this purpose warrants the reexamination of unknown numbers of jury verdicts. Applying the second criterion we find that the apparent reliance of the police on the use of hypnosis also clearly weighs in favor of the prospective application of our ruling. The police and other law enforcement authorities had no notice that placing persons under hypnosis would preclude their testimony at a subsequent trial. The third criterion to be considered is the effect of retroactive application on the administration of justice. There are obvious practical considerations, in addition to the tax ing of trial and appellate courts, in denying retroactive application of our ruling. Only where there is a denial of a basic right of constitutional magnitude that is correct able will retroactive application be applied. This is not the case here.
We hold that any posthypnotic testimony is inadmissible in a criminal case if the hypnotic session took place after this case becomes final. We further hold that any conviction presently in the appeals process in which there was hypnotically refreshed testimony will be examined on a case-by-case basis to determine if there was sufficient evidence, excluding the tainted testimony, to uphold the conviction. We believe this holding balances the competing interests and is the most equitable place to draw the line. Furthermore, we feel certain limitations on the rule should apply. First a previously hypnotized witness is not incompetent in the strict sense of being unable to express himself comprehensibly or understand his duty to tell the truth on his abilities to perceive and to remember. Accordingly, such a witness could testify to all events other than the new matter discovered at the hypnotic session. Second, we do not undertake to foreclose the continued use of hypnosis by the police for purely investigative purposes. Any corroborating evidence obtained is admissible ina criminal trial subject to other evidentiary objections.
We must now determine whether, on the facts of this case, there was sufficient evidence, excluding the hypnotically recalled testimony, to uphold Bundy's conviction. The United States Supreme Court has articulated the harmless-constitutional error rule to be a question of whether there is a reasonable possibility that the evidence complained of might have (1972); Fahy v. Connecticut, 375U.S. 85 (1963).
The record shows that Mr. Anderson's testimony was refreshed under hypnosis as to only three details. Under hypnosis he was able to recall that the football jersey which the girl he described was wearing was blue and the numbers were " 6 3 " or " 6 8. " He was also able to remember that part of the man's attire was a pullover sweater and a shirt. After a thorough examination of the record before us in this case, we feel that sufficient evidence does exist, absent the tainted testimony, upon which the jury could have based its conviction of Bundy.
There is no reasonable possibility that the tainted testimony complained of might have contributed to the conviction.
The second point that Bundy has raised on this appeal is whether the trial court erred in denying the defense's motion to limit death qualification of the jury. Bundy's argument is novel on this issue in that, in effect, he is urging the non-application of Witherspoon v. Illinois, 391U.S. 510 (1968).
The substance of his point is that the differences between the Illinois death penalty statute under consideration in Witherspoon and the Florida statute cause Florida's interest in excluding jurors who would automatically vote against the death penalty to be non-existent. Therefore, Bundy urges, his interest ina jury composed of a cross-section of the community controls and the trial court erred in excusing those jurors who were unalterably committed to vote against the death penalty. The state maintains that we are precluded from ruling on this issue since the objections on this ground were never raised in the trial court.
We agree. Steinhorst v. State, 412 So.2d 332 (Fla. 1982).
The third point Bundy raises is whether the trial court erred in denying defendant's motion for change of venue or abatement of prosecution. Bundy argues that this inquiry demands an analysis of the collision of first amendment guarantees belonging to the press and the media with his right to have a fair and impartial trial under the fifth and sixth amendments.
Accordingly, he argues that the trial court should have granted the defense's motion since it was the least burdensome alternative that would have constitutionally balanced these competing rights. The state's counter argument is that Bundy has failed to specifically direct us to specific portions of the record which require a finding of constitutional unfairness as to the character of the jurors selected. We agree.
The mere existence of extensive pretrial publicity is not enough to raise the presumption of unfairness of a constitutional magnitude. In Murphy v. Florida, 421U.S. 794 (19751, which dealt with the prosecution of the newsworthy "Murph the Surf" for a breaking and entering charge, the United States Supreme Court recognized that qualified jurors need not be totally ignorant of the facts and issues involved ina case. The mere existence of a preconceived notion as to guilt or innocence is insufficient to rebut the presumption of a prospective jurors' impartiality. It is sufficient if the juror can lay aside his opinion or impression and render a verdict based on the evidence presented in court. - Id. at 799 - 800 (quoting Irvin v. Dowd, 366U.S. 717
(1961)). --
See also Dobbert v. Florida, 432U. S. 282, 302 (1977):
Dobbert v. State, 328 So.2d 433, 440 (Fla. 1976). The record shows that, of the twelve jurors at Bundy's trial, three had no knowledge of the Chi Omega murders. Of those three, two had never even heard of Bundy. Five of the remaining nine had some knowledge of the Chi Omega murders, but they had no more than sketchy ideas of what had occurred. The four remaining jurors. did know about Bundy's conviction for the Chi Omega murders.
However, all the jurors stated they would put aside any opinion they might hold and decide the case only on the evidence presented. We hold that Bundy has failed to show that he did not receive a fair and impartial trial because the setting or time of his trial was inherently prejudicial. The trial judge committed no error in denying the motion for change of venue or abatement of prosecution.
The fourth point raised is whether the trial court erred in failing to hold a Frye inquiry on its own motion concerning the fiber and shoe track evidence to determine whether the evidence to be presented and the testimony concerning that evidence were both reliable and relevant. Bundy failed to make an objection on this ground in the trial court and he has not demonstrated fundamental error. Therefore, consideration of this point is procedurally barred.
Bundy also raises the issue of whether the trial court erred in denying the defense's motion fora view of the crime site. Such a determination is left to the discretion of the trial judge and there is a presumption as to the correctness of his rulings in the absence of a demonstration to the contrary.
Rankin v. State, 143 So.2d 193, 195 (Fla. 1962); Dixon v. State, 143 Fla. 277, 196 So. 604, 605 (1940). Bundy claims that Anderson's recall of the abduction of the Leach girl would be obviously inconceivable had a view of the site been granted by the trial court. Counsel had substantial opportunity, which he exercised, to cross-examine Anderson. In addition, the view had substantially changed from the time of the Leach girl's disappearance in 1978 to the time of Bundy's trial in this cause in 1980. The record shows the road had been widened and four laned which would have changed distance evaluation and traffic patterns. Bundy has failed to demonstrate an abuse of discretion by the trial court.
The sixth point raised by Bundy is whether the trial court erred in denying his motion to exclude evidence of flight and the subsequent jury instructions on flight. Bundy argues that the state must be required to prove that the flight was due to the guilty knowledge of the defendant of the crime for which he is on trial beyond a reasonable doubt and to the exclusion of any other explanation for the flight. Unless the state can show that Bundy - other reason to flee, Bundy argues, the state should not had no be allowed to introduce evidence of flight.
The probative value of flight evidence as circumstantial evidence of guilt has been analyzed by the Fifth Circuit Court of Appeals as depending upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. United States. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977). These criteria have also been applied by the Eleventh Circuit Court of Appeals in United States. Borders, 693 F.2d 1318, 1325 (11th Cir. 1982), cert. denied, 461 U.S. 905 (1983). In Borders the court noted that the cases in which flight evidence has been held inadmissible have contained particular facts which tend to detract from the probative value of such evidence. For instance, the probative value of flight evidence is weakened: 1) if the suspect was unaware at the time of the flight that he was the subject of a criminal investigation for the particular crime charged, United States. Beahm, 664 F.2d 414, 419-20 (4th Cir.
(1981); (2) where there were not clear indication that the defendant had in fact fled, Myers, 550 F.2d at 1049-50; or, (3) where there was a significant time delay from the commission of the crime to the time of flight. - See, - e.g., United States.
Howze, 668 F.2d 322, 324-25 (7th Cir. 1982); Myers; United States
v. White, 488 F.2d 660, 663 (8th Cir 1973). The interpretation to be gleaned from an act of flight should be made witha sensitivity to the facts of the particular case. Borders, 693 F.2d at 1325.
We see no defect which would render the evidence presented in this case inadmissible. When Bundy was apprehended in Pensacola after fleeing from the officer who had stopped him, it was only six days after the Leach girl had disappeared. The disappearance had attracted much publicity and we feel it is a reasonable inference to make that Bundy fled from the officer as a result of consciousness of guilt on his part for the Leach crime. Likewise, it was two days after the Leach crime when Bundy fled from Officer Dawes after Dawes spotted the license tag on the floorboard of the car which Bundy was apparently using.
It is reasonable that a jury could infer such circumstantial evidence to be evidence of guilt. Accordingly, we hold that the two incidents of flight were properly admitted as relevant evidence which a jury could use as circumstantial evidence of guilt. Cf. Mackiewicz v. State, 114 So.2d 684, 689 (Fla. 19591, cert. denied, 362 U.S. 965 (1960); Daniels v. State, 108 So.2d 755, 760 (Fla. 1959). The judge's instructions to the jury concerning the evidence of flight was also proper. Proffitt v.
State, 315 So.2d 461, 465-66 (Fla. 1975), aff'd, 428 U.S. 242 (1976).
Finally, Bundy challenges the trial court's findings which were relied on in sentencing him to death. Specifically, Bundy challenges the court's finding that the aggravating circumstance enumerated in section 921.141(5)(h), Florida Statutes (19771, existed. That subsection reads:
The capital felony was especially heinous, atrocious or cruel.
The court found the following:
The court finds that the victim was a twelve year old female junior high school student attending the Lake City Junior High School. The Defendant kidnapped her from the said Junior High School sometime between 9 and 10 am on February 9, 1978, and her deteriorated body was found ina hog pen approximately 45 miles from the scene of abduction on April 7, 1978. The victim died of homicidal violence to the neck region of the body. At the time the body was found it was unclothed except fora pullover shirt around the neck. There were semen stains in the crotch of her panties found near the body. Blood was found on the blue jeans also found near her body, and there were tears and rips in some of her clothes. The Court finds this kidnapping was indeed heinous, atrocious and cruel in that it was extremely wicked, shockingly evil, vile and with utter indifference to human life.
This Court explained the language in subsection 921.141(5) (h) in State. Dixon, 283 So.2d 1 (Fla. 19731, cert.
denied, 416 U.S. 943 (1974). Heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile, and cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. - Id. at 9. Bundy argues that the absence of proof establishing the cause of Leach's death and the attendant circumstances surrounding it give the court no factual basis which can justify a finding that this aggravating factor exists.
We must agree. No specific cause of death could be determined from the autopsy reports. There was no clear evidence offered to show that Kimberly Leach struggled with her abductor, experienced extreme fear and apprehension, or was sexually assaulted before her death. In the absence of these types of facts, we must conclude that this case does not fit in with our previous decisions in which we have found the manner of the killing to be the conscienceless or pitiless type of killing which warrants a finding that the capital felony was especially heinous, atrocious or cruel. - See, - e.g., Smith v. State, 424 So.2d 726 (Fla. 19821, cert. denied, 103 S.Ct. 3129 (1983)(where evidence showed the victim was abducted, confined, and sexually abused by the defendant and then lead into a wooded area and killed execution style by three shots to the back of her head): Bolender v. State, 422 So.2d 833 (Fla. 1982), cert. denied, 461 U.S. 939 (1983)(defendant methodically held the victims at gunpoint and ordered them to strip and then beat and tortured them throughout an evening before killing them).
Bundy also challenges the trial court's finding that the aggravating circumstances as described in subsections 921.141(5) (a) and 921.141(5) (b) existed. Bundy argues that the findings under these subsections involved the same convicted act and this constituted an impermissible doubling of aggravating circumstances. Section 921.141(5)(a) states:
That the crime for which the defendant is to be sentenced was committed while the defendant was under sentence of imprisonment.
The court's finding read:
The unrefuted testimony established beyond a reasonable doubt that the Defendant was under sentence for aggravated kidnapping in the State of Utah which had not been served, paroled, or pardoned.
Section 921.141(5) (b) states:
The defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person.
The court found:
The unrefuted testimony established beyond a reasonable doubt that the Defendant had been convicted of the crime of aggravated kidnapping in the state of Utah and that it was a crime involving the use of, or threat of violence to some person.
Further, the Court finds that on July 31, 1979, the Defendant was convicted by the Circuit Court of Dade County, Florida, for the capital felonies of murder of Lisa Levy and of Margaret Bowman (two counts), and of the following felonies involving the threat of violence to some person:
(1) Attempted murder of Karen Chandler;
(2) Attempted murder of Cathy Kleiner;
(3) Attempted murder of Cheryl Thomas; and
(4) burglary of a dwelling with the intent to commit the offense of battery and to commit an [assault] on a person therein, to-wit: Cheryl Thomas.
The state contends that the test enunciated in Blockburger
v. United States, 284 U.S. 299 (1932) applies. We agree. In State. Heqstrom, 401 So.2d 1343, 1345 (Fla. 1981), this Court noted that in the absence of a clear contrary legislative intent the Blockburger test must be met before multiple punishments are permissible. Under Blockburger the same act violates two statutes only if each statutory provision requires proof of a fact that the other does not. 284 U.S. at 304. It is obvious that these two subsections, 921.141(5) (a) and 921.141(5) (b), each require proof of a fact that the other does not. The trial court did not err in finding both aggravating circumstances.
Bundy's next objection is to the trial court's admission of the testimony of an investigator from the district attorney's office in Vail, Colorado, to prove that Bundy had escaped from jail in Colorado. We find no merit to Bundy's argument that this testimony was incompetent and rank hearsay. We find that the testimony offered was competent and sufficient to establish the aggravating circumstance.
We conclude that the trial court correctly found three aggravating circumstances and no mitigating circumstances. We have compared the circumstances found in the present case with those shown in other capital cases.
In Alford v. State, 307 So.2d 433 (Fla. 19751, cert.
denied, 428 U.S. 912 (1976), this Court affirmed the judgment and sentence of the defendant who had raped and murdered a thirteen year-old girl. The murder of the victim was found to have been committed while the defendant was engaged in the commission of or in flight after committing the life felony of rape of the same victim. The act was found to be especially heinous, atrocious and cruel. The victim had been raped both vaginally and rectally, was blind folded, and was shot five or six times. No mitigating circumstances were found to exist.
In Martin v. State, 420 So.2d 583 (1982), cert. denied, 460 U. S. 1056 (1983), the defendant, an eighteen-year-old high school drop out, had abducted, committed sexual battery on, and murdered a college student who was temporarily employed ina convenience store. Five aggravating circumstances were found by the trial judge and supported by the record including the findings: (1) that the murder was committed while the defendant was engaged in flight after committing robbery, rape, and kidnapping; (2) that the murder was committed while the defendant was under sentence of imprisonment at the time; and, (3) that the defendant had previously been convicted of felonies involving the use or threat of violence to the person.
In Stevens v. State, 419 So.2d 1058 (Fla. 19821, cert.
denied, 459 U. S. 1228 (1983), we affirmed a death sentence where the defendant had robbed a convenience store and then raped, strangled, stabbed, and killed the victim. The trial court properly found four aggravating circumstances including that the murder was committed in the commission of or the flight after committing rape and kidnapping.
After weighing the evidence in this case we conclude that the sentence of death imposed was justified and appropriate under our law. We affirm the judgments of conviction and sentence of death.
It is so ordered.
OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., Concur BOYD, C.J., Concurs specially with an opinion
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETEIZMINED.
BOYD, C.J., concurring specially.
I concur in the affirmance of the convictions and sentence. Because I find that the testimony of the hypnotized witness was based on his independent recollection of the event he saw and was not significantly affected by the hypnosis, I conclude that the testimony was properly admitted. See Bundy v.
State, 455 So.2d 330 (Fla. 1984).
Because the eyewitness identification testimony, the crucial link in the chain of circumstantial evidence of appellant's guilt was, as the Court finds, not substantially affected by the use of hypnosis, it is not necessary for us to treat the question of whether testimony derived from hypnotic memory-enhancement techniques is admissible evidence in the courts of Florida.
As the sources discussed in the majority opinion clearly demonstrate, the great weight of legal and scientific authority regards testimony derived from so-called hypnotically refreshed or enhanced memory as highly suspect and unreliable. As scientific understanding of the phenomenon of hypnosis has advanced, the clear trend of judicial decisions is to hold testimony derived from it inadmissible. At the very least, it is clear that such testimony is inadmissible where the hypnotic memory-enhancement procedure is performed without following strict safeguards widely regarded as necessary to the reliability of the technique. Although some degree of care was exercised in this case, the procedure used was not accompanied by safeguards that would be considered adequate under the case law of jurisdictions that recognize the procedure as reliable when safeguards are followed.
Even where hypnotic testimony is regarded as inadmissible or as highly suspect, it has been recognized that testimony based on independent recollection not affected by the attempted hypnotic enhancement can be admissible. - See, - e.g., State ex rel.
Collins v. Superior Court, 132 Ariz. 180, 209-10, 644 P.2d 1266, 1295-96 (1982)(supplemental opinion); People. Lucas, 107 Misc.2d 231, 435 N.Y.S.2d 461 (Sup. Ct. 1980). I believe this principle applies in the present case.
Rather than decide the case only on the basis of the above-stated principle, the Court now places Florida squarely among the apparently growing number of jurisdictions in which it is held that testimony derived from hypnotically refreshed memory is per - se inadmissible in evidence at a criminal trial. Yet at the same time the majority concludes, as I do, that the central or essential substance of the hypnotized witness's testimony was not significantly affected by the improper attempt to enhance memory by hypnosis. Thus it appears to me that the majority's rule of per se inadmissibility is merely an advisory opinion to the courts of Florida because it is not necessary to apply the rule in this case. This observation brings me to my only real objection to the majority opinion and the reason for the writing of this separate opinion.
When a person tried for and convicted of a crime challenges the conviction on appeal on the ground, properly raised at trial, that a crucial and prejudicial item of evidence against him was unreliable evidence and improperly admitted, and the appellate court rules that the evidence was indeed unreliable and prejudicial, then that appellant is entitled to the benefit of the ruling and should be given a new trial. This is so regardless of previous reliance on the old rule or previous ambiguity in the law. Therefore if we were faced witha situation where the crucial identification testimony was actually obtained through improper use of hypnosis, we would be required to reverse the conviction. To apply a new rule of inadmissibility of evidence ina criminal trial prospectively only is highly improper.
To apply such a new rule to the case in which the rule is fashioned and to all cases decided on appeal thereafter is necessary: this does not mean that the rule must necessarily be given retroactive effect upsetting the finality of cases already decided on appeal. I find the majority's treatment of this issue confusing and unnecessary.
We are not required to reverse the convictions here because the testimony in question was not produced by hypnosis.
I therefore concur in the affirmance of the convictions.
Regarding the appropriate ness of the sentence of death, I concur in the majority opinion.
An Appeal from theCircuitCourtin and for Columbia County, Wallace 11. Jopling, Judge - CaseNo. 78-169-CF J. VictorAfrican0andPaulE. Risner, Live Oak, Florida, for Appellant JimSmith, AttorneyGeneral and Gregory C. Smith, Assistant Attorney General, Tallahassee, Florida, for Appellee