Aileen Carol Wuornos shot seven men along the highways of central Florida between late 1989 and late 1990. She went to trial once, for the killing of Richard Mallory, and was convicted. For the rest she pleaded. That sequence is why this file matters more than any other court record in the archive: the only time the evidence against her was tested by a jury was the first case, and everything the State had on the others reaches us through the paperwork of the appeals.
Four dockets, 820 pages. Number 79484, 81059, 81466 and 81498 in the Supreme Court of Florida, each with the defense brief, the State's answer and the court's opinion, and three of them with a reply. They cover the Mallory conviction and the sentences that followed the pleas.
Her appeals ran for a decade and she helped end them herself, telling a court in 2001 that she wanted no more of them. The Supreme Court of Florida had already sent one of these sentences back once. She was executed at Florida State Prison on October 9, 2002, the tenth woman put to death in the United States since 1976.
One jury verdict, then pleas, and that sequence is why this file matters more than any other court record in the archive. The Richard Mallory trial in Volusia County is the only occasion on which the evidence against Wuornos was put in front of a jury and tested by a defense. For the other killings she pleaded, which means no jury heard the State's case and no defense cross-examined it, and almost everything the prosecution had reaches us through the paperwork of these four appeals rather than through a trial record.
Two arguments run through all 820 pages. The first is the Williams Rule ruling, which let prosecutors put six other killings in front of the jury sitting on one, and which the defense said turned a single-count trial into a trial for everything she was suspected of. The second is mitigation: what the courts were told about her childhood, her mental state and the men who paid her, what the sentencing judge did with it, and whether that weighing was lawful.
Read them for the citations as much as the arguments. Appellate briefs quote the trial record only where it suits them, so they are a poor narrative, but they cite the transcript by volume and page, name the detectives and the prosecutors, and give the trial court and case numbers for every proceeding they touch. That is what converts a vague hunt for records into a specific request a clerk can answer, and in a case resolved mostly by plea it may be the only map there is.
A great deal about this case is owned by somebody. The film, the books, the interview tapes and the documentary footage are all somebody's property and none of it is here. Court filings are not: these four dockets are public record in Florida, free to read and reproduce entire, which is exactly why a project like this can publish the record rather than paraphrase a book about it. FSU's law library made the scans.
The twelve-page reply brief in docket 79484 is blank. Not damaged, not partly legible: the scanner recorded no text on it at all, so there is nothing for us to reproduce and no repair that would help. It exists on the docket and the clerk of the Supreme Court of Florida can supply it. What surrounds that gap is typescript running from 68 to 89 per cent legible, and we have closed up the letters the scanner scattered inside words, split 787 words it ran together, and repaired 1,735 misreadings where only one real word could fit. Nothing capitalized was altered anywhere.
FILED
SID 3. WHITE
IN THE SUPREME COURT OF FLORIDA
JAN 28 1993
CLERK, SFME COUffl:
AILEEN CAROL WUORNOS,
Appellant, vs. CASE NUMBER 79,484>
STATE OF FLORIDA,
Appellee.
APPEAL FROM THE CIRCUIT COURT
IN AND FOR VOLUSIA COUNTY, FLORIDA
AMENDED
INITIAL BRIEF OF APPELLANT
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL CIRCUIT
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 0294632
CHIEF, CAPITAL APPEALS
LARRY B. HENDERSON
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 0353973
112 Orange Avenue, Suite A Daytona Beach, Florida 32114
(904) 252-3367
ATTORNEYS FOR APPELLANT
TABLE OF CONTENTS
PAGE NO.
TABLE OF CONTENTS i TABLE OF CITATIONS iii
APPELLANT WAS DENIED HER CONSTITUTIONAL
RIGHT TO A FAIR TRIAL WHERE COUNSEL
REPEATEDLY ALLEGED NUMEROUS DISCOVERY
VIOLATIONS AND THE TRIAL COURT FAILED TO
CONDUCT AN ADEQUATE RICHARDSON HEARING.
APPELLANT WAS DENIED FAIR TRIAL WHEN
THE STATE INTRODUCED EXTENSIVE EVIDENCE
OF SIX COLLATERAL MURDERS WHICH BECAME A
FEATURE OF THE TRIAL.
THE TRIAL COURT ERRED IN REFUSING TO
SUPPRESS APPELLANT'S CONFESSION WHERE IT
WAS INVOLUNTARY ASA RESULT OF IMPROPER
INDUCEMENT AND, ADDITIONALLY, WAS
OBTAINED IN CONTRAVENTION OF APPELLANT'S
CONSTITUTIONAL RIGHT TO COUNSEL.
THE TRIAL COURT IMPROPERLY RESTRICTED
VOIR DIRE OF PROSPECTIVE JURORS AND
OTHERWISE VIOLATED STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND
TO AN IMPARTIAL JURY BY IMPROPERLY
DENYING VALID CHALLENGES FOR CAUSE, BY
DENYING THE REQUESTS FOR SEQUESTERED
VOIR DIRE, AND BY DENYING A REQUEST FOR
CHANGE OF VENUE.
TABLE OF CONTENTS, CONTINUED
THE JURY'S PENALTY PHASE VERDICT WAS
UNCONSTITUTIONALLY TAINTED ASA RESULT
OF IMPROPER INSTRUCTIONS, IMPROPER
EVIDENCE, AND IMPROPER ARGUMENT.
THE TRIAL COURT ERRED IN IMPOSING A
DEATH SENTENCE WHICH IS NOT JUSTIFIED IN
THAT IT IS BASED ON INAPPROPRIATE
AGGRAVATING CIRCUMSTANCES, ADDITIONAL
MITIGATING CIRCUMSTANCES SHOULD HAVE
BEEN FOUND, AND THE MITIGATING
CIRCUMSTANCES OUTWEIGH THE AGGRAVATING
CIRCUMSTANCES.
THE TRIAL COURT ERRED IN DENYING
APPELLANT'S MOTION FOR JUDGMENT OF
ACQUITTAL.
THE FLORIDA CAPITAL SENTENCING STATUTE
IS UNCONSTITUTIONAL ON ITS FACE AND AS
APPLIED.
TABLE OF CITATIONS
CASES CITED: PAGE NO.
Amoros v. State Antone v. State Auriemme v. State Blackwell v. State Bolender v. State Brady v. Maryland Brady v. United States Bram v. United States Bruno v. State Bryan v. State Buford v. State Burns v. State Caldwell v. Mississippi Caruthers. State Castro v. State Castro v. State iii
TABLE OF CITATIONS, CONTINUED
Coleman v. State Cross v. State Cumbie v. State Davis v. North Carolina Dousan v. State EsPinosa v. Florida Flovd v. State Geralds v. State Gonzalez v. State Grew. Georgia Halliwell v. State Hallman v. State Hamilton v. State Harsrave v. State Herzos v. State Hill v. State Hitchcock v. Duqqer ' Hodges v. Florida Huckabv v. State
TABLE OF CITATIONS, CONTINUED
Hunter v. State Irvinv. Dowd Jararnillo v. State Jones v. State Lewis v. State Lynum v. Illinois Miranda v. Arizona Moody v. State Moore v. State Morford v. UnitedStates Pavnev. Tennessee Peoplesv. State Perry. State Pod v. State Porter v. State
TABLE OF CITATIONS, CONTINUED
@ Provence v. State Raffone v. State Rembert. State Richardson v. State Riley v. State Ore v. Wade Rogers v. Richmond Rogers v. State Ross. State Scott v. State Simmons v. State Sinqer v. State Smith. State Smith. State Sochor v. Florida State. Banks State. Dixon
TABLE OF CITATIONS, CONTINUED
@ State. Glosson State. Hall State. Moore Taylor v. State Teffeteller v. State Travlor v. State United States. Beechum United States. Neill Weber v. State Whike v. State Wilcox v. State Williams v. State Williams v. State Wilson v. State Young v. Zant vii OTHER AUTHORITIES CITED:
Amendment VI, United States Constitution 21, 54-56, 68,
Amendment XIV, United States Constitution 21, 54-56, 68, 70, 73,
Article I, Section 9, Florida Constitution 21, 56, 68, 70, 73,
Article I, Section 16, Florida Constitution 21, 54-56, 68, 70,
Article I, Section 17, Florida Constitution 21, 5 7, 7 5, 82, 85
Article I, Section 22, Florida Constitution 21, 56, 6 8, 70, 73,
Section 921.141(5) (d), Florida Statutes 74, 76, 8 5 Section 921.141(5)(e), Florida Statutes a5 viii
IN THE SUPREME COURT OF FLORIDA
AILEEN CAROL WUORNOS,)
STATE OF FLORIDA,)
INITIAL BRIEF OF APPELLANT
STATEMENT OF THE CASE
On January 9, 1991, police arrested Aileen Carol Wuornos, the Appellant, on an active warrant charging her with carrying a concealed firearm. (R4028-29) On January 28, 1991, the Volusia County, fall term, grand jury indicted Wuornos for the first degree murder2 and armed robbery3 of Richard Mallory. (R5018-19) Wuornos was also charged with possession of a firearm by a convicted felon.4 On February 1, 1991, Appellant filed her notice of intent to participate in discovery. (R4048) On February 8, 1991, Appellant requested the criminal history of the victim, Richard Mallory. (R4065) Due to the pervasive pretrial publicity, Appellant sought a change of venue which the trial court ultimately denied. (R4425- In this brief, counsel will use Appellant, Wuornos, and Lee (her nickname) interchangeably.
S 782.04(1)(a)l and/or 2, Fla. Stat SS 812.13(1) and (2)(a); 775.087(2)(a), Fla. Stat.
S 790.23, Fla. Stat.
4513) The trial court also denied Appellant's motion to seal her videotaped statement to law enforcement. (R4324-29) On August 5, 1991, the State filed notice of its intent to use similar fact evidence.' (R4142-47,4393-95) On January 3, 1992, Appellant moved in limine to exclude any and all purported Itsimilarfact evidence." (R4416-24) During the trial, the court overruled numerous objections, and the State presented a plethora of ttsimilarfact evidence.It (R1138-85) Appellant filed numerous motions attacking the constitutionality of various aspects of Florida's capital sentencing scheme. R4176-79,4180-83,4188-99,4200-23) Following a hearing on August 19, 1991, the trial court denied all of the constitutional attacks. (R4244-47) Appellant filed a motion to suppress statements that she made to law enforcement. Appellant also sought to suppress any and all fruits resulting from said statements. (R4248-55) Following a hearing, the court denied the motion and allowed the evidence at trial over objection. (R1065,2264-3107,4380-83) On January 10, 1992, the Appellant filed a motion to compel discovery pursuant to Brady v. Maryland, 373 U. S. 83 (1963).
(R4530-32) On that same date, Appellant filed a motion for continuance based on two last-minute witness lists filed by the State. (R4535-58) This case proceeded to a jury trial on January 13, 1992.
§90.404(2)(b)1, Fla.Stat.; Williams v. State, 110 So. 2d 654 (Fla. 1959).
(Rl-2263) Immediately before jury selection began, the trial court considered Appellant's motion to continue, heard argument, denied the motion, and began jury selection. (R10-28) The trial court denied Appellant's renewed motion for change of venue.
(R27-28) The trial court also denied Appellant's request for individual and sequestered voir dire. (R22-23) The court did agree to sever the count charging the Appellant with possession of a firearm by a convicted felon. (R23-28) During jury selection, the trial court denied several of Appellant's cause challenges of several jurors. (R318,359-60,403-4,545-49,567-68, Throughout the trial Appellant alleged numerous discovery violations. (R1187,1193-94,1202,1258,1261-62~1364,1368~1381- 90,1605-16) Evidence of collateral crimes and Appellant's confession were admitted over defense objection. (R1138-85, & se9.1 At the conclusion of the States case-in-chief, Appellant's motion for judgment of acquittal was denied. (R1903-7) Appellant testified in her defense and the State called one rebuttal witness. (R1913-2106) Appellant requested several modification in the standard jury instructions and requested two special instructions in writing. Most of these requests were denied. (R2112-32,4589-90) Based on numerous comments during the prosecutors final sum mation, Appellant objected and moved fora mistrial. Most of the objections were overruled and the motion for mistrial was denied. (R2167-69, 2172-73,2251-57) Following deliberations, the jury found Appellant guilty as charged of first-degree murder and armed robbery witha firearm.
(R2258,4621-22)
The penalty phase began on January 2 8, 1992. (R3131-35) The State presented two witnesses, the defense -- three, and two rebuttal witnesses for the State. The trial court denied numerous requests by the Appellant for special jury instructions.
(R4631-46) The trial court denied all motions for mistrial that were based on the States improper final argument. (R3604-9) Following deliberations, the jury returned with an advisory verdict recommending the death sentence (12-0). (R3611-14,4647) The trial court sentenced Appellant to death finding five aggravating circumstances and one mitigating circumstance.
(R4663-69) The trial court sentenced Wuornos to ten years imprisonment on the armed robbery. (R4679-82) Appellant's motion for new trial (R4690-95) was denied by the trial court following a hearing. (R4007-24,4699) Appellant filed a notice of appeal on March 5, 1992. (R4705-6) This Court has jurisdiction. Art. V, 5 3 (b) (l), Fla. Const.
STATEMENT OF THE FACTS
Guilt Phase
A. The Death of Richard Mallory On December 1, 1989, Deputy John Bonnevier discovered Richard Mallory's abandoned vehicle ina wooded area in north Volusia County. (R700-708) A half-empty quart bottle of vodka, an empty beer bottle, and awire coat hanger were among the items ' strewn about the area. (R723-27,736-40) Two driver's licenses belonging to Mallory were also found at the scene. (R730) December 13, police found Mallory's body ina wooded area several miles away. (R717,770-71) Mallory was last seen alive in Clearwater on November 30, 1989. (R785-98) Two bullets that struck Mallory's left lung resulted in hemorrhaging and ultimately death. (R854-64) The medical examiner also found a wound to Mallory's right arm. (R857-60) Dr. Botting removed three bullets from Mallory's body and found a fourth bullet lying free in the body bag. (R857-60,867) The bullets were CCI brand.22 caliber, hollow-point, stinger cartridges. (R909-11) They were fired from a weapon (rifle, revolver, or pistol) rifled with six groves6 with right-hand twist. The firearms expert admitted that this particular style of rifling was popular, with many different weapons and different brand having this same class characteristic. (R911-12,915) Authorities could not determine the assailants position relative to Mallory when the shots were fired, only that most were inflicted from a distance of less than six feet. (R873-74,921- 28) They also could not determine the sequence of shots or what happened between each shot. (R874) Mallory had definitely been drinking and was probably under the influence at the time of his death. At the time of the autopsy, Mallory's blood alcohol level was.05. (R875) Although the transcript repeatedly refers to llscrews, ll gun enthusiasts say that "groves1I is the appropriate term. The court reporter obviously used phonics, resulting in this error.
Tyria Moore met Aileen Wuornos ina Florida bar. The two became lesbian lovers and had a relationship that lasted approximately four and one-half years. (R933-36) Moore worked sporadically asa hotel maid, while Appellant made most of the Mooney working asa prostitute on Florida's highways. (R935) Moore generally did not discuss Let's job or her road trips.
(R967-68) Moore knew that Let's line of work was very dangerous, and that Wuornos carried a gun for protection. (R954,968) Moore knew that Lee had been raped and beaten on more than one occasion and was verbally abused almost every day. (R968-69) Wuornos drank substantial amounts of alcohol almost every night, sometimes a case of beer each night. (R969-70) When she drank, she would get "kind of moody.Il (R970) On more than one occasion, Wuornos would go on drinking binges where she would consume a case of beer a day, several days at a time, with only a minimal amount of sleep. (R970) On the evening of December 1, 1989, Moore and Wuornos were watching television at the Volusia County motel where they were living. Wuornos had returned home after plying her trade for several days on the road. An intoxicated Wuornos told Moore that she had shot and killed a man early that morning. (R937-47,976) She then sorted through the man's property, keeping some, and throwing some items away. (R948-49) Wuornos never explained the circumstances of the shooting. (R947,952) Wuornos explained that she left the body in the woods and abandoned the man's car in Ormond Beach. (R944-47) Several months later, Moore began seeing media reports indicating that police were looking for two women who were suspects ina series of murders7. (R977) Afraid of being arrested, Moore left Wuornos and returned to her home up north in December, 1990. (R977-78) Less than one month later, Florida law enforcement contacted her in Pennsylvania. (R978) In an attempt to clear herself, Moore agreed to return to Daytona Beach and attempt to extract a confession from Wuornos. (R978-86) In accomplishing this goal, Moore exploited their prior relationship and the tremendous love that Wuornos still harbored for Moore.
(R971,981-86) During numerous phone calls over several days, Moore, acting as an undercover agent for the police, repeatedly lied to Wuornos, threatened suicide at least once, and constantly exhorted her to take the entire blame for the murders. (R982-86) Wuornos eventually broke down and agreed to confess.
On January 16, 1991, Investigator Lawrence Horzepa of the Volusia County Sheriff's Department took a videotaped statement of Aileen Wuornos at the Volusia County Branch Jail. (R1060-65) Although her alcoholism caused some memory loss (R1124), Wuornos recalled that one evening in early December, 1989, she had been hitchhiking from Tampa on 1-4, when Richard Mallory picked her up. They drove to Volusia County where Wuornos offered to perform an act of prostitution. They drove to an isolated area near U. S. 1 and 1-95. (R1069-70) Both had been drinking and Witnesses saw Wuornos and Moore abandon a murder victim's car. (R1493-1501,1511) Mallory had been smoking marijuana when he parked the car about midnight. (R1070,1108-9) For the next five hours, the couple continued to drink, talk, and enjoy each others company.
(R1070) Wuornos had been drinking all day and was Itdrunk royal."
(R1107) At approximately 5: OO a.m., the ill-fated act of prostitution commenced. Mallory handed Wuornos some cash and, as was her usual habit to help put the customer at ease, she began to dis robe first. (R1070-71) Mallory remained behind the steering wheel. With Mallory still dressed, the couple began to kiss and hug. Wuornos asked Mallory to get undressed, but Mallory refused. (R1072-73) Mallory wanted to merely unzip his jeans. (R1072) Although she had been accommodating up to that point, Wuornos took issue with Mallory's refusal to remove his jeans. A struggle ensued and Mallory became violent. (R112O) Wuornos, fearful that Mallory was intent on raping and robbing her, grabbed the gun from her nearby purse. Mallory also grabbed her gun and a tug of war began. Wuornos won the struggle and shot Mallory. After being hit with the first shot, Mallory got out of the car and shut the driver's door. Despite her warnings, Mallory kept coming toward her. Wuornos shot. Mallory fell to the ground, and Wuornos shot him two more times. (R1075-76,1121- 22) Wuornos told the detective that she killed Mallory in retaliation and that he deserved to die. (R1072-80) She took his property as Itfinal revenge." (R1080) Wuornos described how she removed Mallory's property, pawned some items', and abandoned the car off a fire trail. (R1076, 1080-82) Over a year later, Wuornos threw her weapon into the Walter of Rose Bay just south of the Fairview Motel where she was staying. (R1083) Tyria Moore showed police where to find the gun. (R843-50) The class characteristics of the bullets recovered from Mallory's body matched those of the recovered weapon, as well as many other firearms. (R918-19)
B. Williams Rule Evidence Over strenuous defense objection, the State was allowed to present evidence that Aileen Wuornos was accused of numerous other murders, that she allegedly committed after Mallory's death.
Charles Richard Humphreys' fully clothed body was found in Marion County on September 12, 1990. (R1259-60) Humphreys died asa result of multiple gun shot wounds inflicted by six bullets fired at his head and torso. (R1298) Police found Humphreys' car in Suwanee county. (R1193-1201,1233-34) In June 1990 Peter Siems left Jupiter, Florida heading for New Jersey. (R1523-25) Police found Siems' car in Orange Springs on July 4, 1990. Witnesses had seen two people, subsequently identified as Tyria Moore and Aileen Wuornos, leaving the car. (R1493-1501,1511-14) A palm print found on Siems' driver's interior door handle matched the palm print of Records from the OK Pawn Shop indicated that Appellant pawned a camera and a radar detector on December 6, 1986. (R813- 39) More of Mallory's property was recovered from a storage unit at Jack' Mini-Warehouse used by Wuornos and Moore. (R878-901) Appellant. (R1318-19,1329-30,1334) Siems' body has never been found. (R4582) Police found Walter Eno Antonio's nearly nude body on November 19, 1990, near a remote logging road in Dixie County.
Antonio had three bullet wounds in his back and one to the base of his head, (R1575-79) Police found Antonio's car five days later in Brevard County. (R1581) On August 4, 1990, police found the body of Troy Burress in a wooded area on State Road 19 in Marion County. The body was in advanced stages of decomposition. (R1335-37) Burress had been shot twice. (R1353) Police found David Spears' body ina very remote area in southwest Citrus County. (R1425,1430) He died of multiple gun shot wounds inflicted by six bullets fired into his torso.
(R1298-1305,1365-66) Spears was totally nude except fora baseball cap. (R1425) Police found the decomposed body of Charles Carskaddon covered witha green, electric blanket in Paso County. They later found his stripped 1975 Cadillac ina junk yard with the license plate removed. (R1466-68) The chief medical examiner removed nine small caliber bullets from Carskaddon's lower chest and upper abdomen. (R1469-79) Police retrieved bullets with similar class characteristics from all five of the recovered bodies'. (R1368-69,1550-51,1371- 72) The State expert admitted that there were numerous weapons Siems' body was never recovered. (R4582) with these same class characteristics. Barred with six groves and a right-hand twist are relatively common. The expert could not say within a reasonable degree of scientific certainty that any of the projectiles had been fired from the gun recovered from Rose Bay. (R1375-76) Appellant's Case Lee Wuornos, 35, was born in Troy, Michigan and found herself living on the streets at a very young age. (R1914) When she was approximately fourteen, she hitchhiked to Florida for the warmer climate. (R1914) At that young age, Wuornos was reduced to working for 75C an hour. She began her career asa prostitute at age sixteen. (R1915) She hitchhiked across the country plying her trade for the next four years. She settled in Florida when she was about twenty. (R1915) During the five years before her trial, Wuornos had worked asa prostitute on the interstate.
At least four days out of the week, she would hitchhike from exit to exit. She propositioned most of the men who picked her up.
If they were not interested, she would get off at the next exit and try again. (R1916-17) Lee met Tyria Moore at the Zodiac Lounge in Daytona Beach in 1986. They fell deeply in love and began a sexual relationship.
After a year, their relationship became more sisterly and less physical. (R1917) Lee used alcohol asa tranquilizer while she worked on the road. (R1921) She had been maced, beaten, and raped by violent customers. (R1922-23) She could get no other work, so she kept working asa prostitute. (R1924) She tried to join the police force and attempted to work asa corrections officer. (R1924) She also repeatedly took the aptitude tests ina vain attempt to join the armed forces. (R1924-25) Wuornos had been carrying a gun for protection approximately six months, when Mallory picked her up that fateful day. (R1926- 27) Mallory was mix ing vodka and orange juice and drinking heavily on his trip. Mallory was also smoking marijuana.
(R1928) He bragged that he owned a video store and asked Wuornos if she knew any women who would be willing to appear in pornographic videos. (R1928) During the trip, Mallory complained bitterly about a woman who was attempting to relieve him of all of his worldly possessions. (R1930) Mallory insisted on parking ina remote area so that he could smoke pot, while he and Wuornos discussed his crumbling love life. (R1931-34) Wuornos' work asa prostitute eventually came up in the conversation. Mallory asked how much she charged. (R1934-35) They drove to an even more secluded spot, Wuornos disrobed, and Mallory went to retrieve a blanket from the trunk. (R1937-38) Mallory refused to undress and announced that he had insufficient funds to pay for her services. Wuornos then began to retrieve her clothes from the back seat in order to get dressed. Before she had a chance to turn back around, Mallory whipped a cord around her neck and commanded her to follow his orders. (R1938- 40) Mallory threatened to kill Wuornos, "Just like the other sluts I've done." (R1940-41) Mallory tied Let's hands to the steering wheel and began violently raping her. (R1941-42) Mallory alternated between Wuornos' anus and vagina during the rape. (R1942) Wuornos began to cry loudly in pain which gave Mallory perverse sexual pleasure. (R1942) After the brutal rape, Mallory cleaned the blood from his penis with robbing alcohol. He talked of other diseased llsluts.tt
(R1943-44) After dressing, Mallory squirted robbing alcohol up Wuornos' torn and bloodied rectum and vagina. (R1945) He then squirted some down her nose and told her that he was saving her eyes for the grand final. (R1945) Mallory then sat on the hood of his car, smoked some more pot, and listened to a portable radio. (R1945-46) A freezing, nude Wuornos unsuccessfully attempted to free herself from the restraints. (R1946) After about one hour, Mallory got back into the car and united her. He put awire around her neck, using it like a leash. Mallory told Wuornos to lie down and spread her legs.
Believing that he would eventually kill her, Wuornos began to struggle. Mallory enjoyed the physical confrontation until Wuornos spit in his face, at which point, Mallory proclaimed, "You're dead bitch. You're dead." (R1946-49) A5 Mallory came toward her in earnest, Wuornos finally found her purse, grabbed her pistol, and shot twice quickly. (R1949) Mallory kept coming at her and she shot again. (R1949) Wuornos got out of the car and ran around to the driver's door. When Mallory started to get out of the car, Wuornos warned him a final time. (R1950) Mallory kept coming. Wuornos shot him again and Mallory fell dead to the ground. (R1950) Penalty Phase Lee Wuornos had a prior conviction for robbery witha deadly weapon. (R3151-54) The chain of events leading to Appellant's prior, violent, felony" conviction began when she had a fight with her boyfriend, who had rejected her. She had been drinking and taking drugs, when she decided to commit suicide in an attempt to get the attention of her boyfriend. (R3336-37,3499) After consuming a case of beer, a half-pint of liquor, and four librium, Lee, wearing a G-string bikini, headed to the beach.
She stopped at a convenience store and placed her purse on the counter. Although she had no prior intent to rob the store, the clerk saw the gun in her purse and became frightened. (R3337-38) Realizing this would be a good method to get attention, Lee robbed the clerk at gunpoint and was apprehended shortly thereafter. (R3338) Drs. McMahon, Krop, and Toomer were all qualified as experts without objection. All three conducted in-depth examinations of Wuornos and reviewed voluminous documentation of her life, her case, and material and tests from other doctors who examined her.
(R3173-87,3309-17,3406-11) All three psychologists' primary diagnosis was that Leo suffered from a borderline personality disorder. (R3192-94,3317-19,3411,3426-27) All three agreed that she was suffering from this particular disorder at the time of the crime, as she had throughout her life. All three classified lo S 921.141(5)(b), Fla. Stat.
the disorder as an extreme mental or emotional disturbance.
(R3222,3319-22,3403-4,3426-27) All three agreed that, at the time of the crime, Let's capacity to conform her conduct to the requirements of the law was substantially impaired. (R3217- 21,3403,3425-26) All three found some evidence of brain damage.
(R3192-94,3204-7,3216-17,3347,3395,3411,3423)
Dr. Krop described Wuornos' borderline personality disorder as, so classic that it essentially dominated her functioning.
(R3394-95) The disorder was characterized by unstable relationships, manic-depressive behavior, self-destructive behavior, lack of impulse control, identity disturbance, impaired cognition, and alienation. (R3193-94) During Dr. Krop's testimony, Wuornos exhibited symptoms of her disorder by laughing inappropriately during the trial. (R3392) Dr. McMahon observed, "MS. Wuornos is probably one of the most primitive people I've seen outside an institution.I' (R3208) McMahon explained that most of Let's time was spent trying to meet her very basic needs, i.e., food, shelter, clothing, and security. Asa result, Lee had neither the time nor the ability to seek more subtle goals, for example, interpersonal relationships. (R3208) Dr. Toomer called borderline personalities, llconstantly hypervigilant.tv Due to their past abuse, they're constantly fearful of being abandoned once again. Asa result of this underlying anxiety, they experience conflict, lack of control, and self-destructive or aggressive behavior. (R3421) Dr.
McMahon pointed out that, at the time of the murder, Wuornos perceived that, whether true or not, she was being threatened and was in severe, imminent danger. (R3217-19) As far as non statutory mitigating circumstances, Dr. Toomer found lack of nurturance; a dysfunctional family unit; and drug and alcohol abuse. (R3428) Wuornos' ability to establish llqualityll interpersonal relationships was definitely impaired.
(R3429) Based on Appellant's remorse, Dr. Toomer ruled out a diagnosis of antisocial personality disorder. Individuals suffering from this particular disorder have no conscience and have constant violation of societal norms throughout their lifetime. Dr. Toomer noted that there were periods of Wuornos' life where she made a conscious effort to be a productive citizen. (R3443-45) When Aileen Wuornos was born, her parents were already divorced. Lee was ignorant of her father's true identity until after her arrest. (R3195) Let's promiscuous teenage mother abandoned Lee and her brother. (R3195) Lee was nearly ten years old, when she found out that she had been adopted by her grandparents. (R3196) Although Lee never knew her biological father, he was a very violent individual with sexually deviant characteristics.
Following rape and kidnapping convictions, he was sent to a mental institution and eventually prison, where he hanged himself. (R3325-28) Let's grandparents, who raised her as their own child, were also dysfunctional. Her grandfather was a severe alcoholic.
(R3533) When her grandfather drank, he became extremely angry.
(R3196) He subsequently committed suicide. (R3209,3532-33) Let's mother described him as Itthemeanest man in town.It (R3196) Her grandmother was an extremely passive individual who also drank a great deal. She died of a liver disorder. (R3532) Lee was closest to her brother Keith who tragically died of cancer when he was only twenty-one. (R3325-28) One childhood incident that had quite an effect on Lee occurred when she was nine. Let's face and hands were severely burned while playing witha combustible chemical. She was hospitalized for several days and missed several months of school. (R3197-98) Lee began having trouble with her studies during junior high school. Hearing loss and vision problems caused her great difficulty. School officials repeatedly urged her family to get professional help, but her mother refused. (R3198-3200) A 1970 school report ended with, "It is vital for this girl's welfare that she receive counseling immediately.tt (R3352) The school unsuccessfully attempted to improve Let's behavior through the administration of a mild tranquilizer. (R3352) When she began struggling in school, Wuornos' IQ score of 81 placed her in the low dull-normal range, only one point from a borderline retarded Score. (R3390-91) When she was approximately fourteen, Lee was raped by a friend of her father. Afraid of her family's reaction, Lee waited six months before revealing that she was pregnant.
(R3201) Let's grandparents were sexually repressed and they blamed the rape on her. (R3331) Her grandfather forced her to give up the child for adoption. (R1301-2) She never received any treatment for the sexual abuse. (R3333-34) Physical and verbal abuse ultimately drove Lee from her home. When she returned for her grandmother's funeral, she was incarcerated ina juvenile facility for almost eight months.
(R3202) When she was released and attempted to return home, her grandfather kicked her out of the house. She was forced to live on the streets. (R3202) She slept in the woods, abandoned cars, whatever she could find. (R3203) She eventually left town, hitchhiked around the country, and became heavily involved in alcohol and drugs. (R3203) She began using alcohol at age twelve and was a regular drinker by age seventeen. (R3497) Asa sexual abuse victim, Lee became extremely promiscuous.
(R3334) Being so young with only a ninth-grade education, she made Mooney hustling pool, working odd jobs, and prostituting her body. (R3203-4) She was attacked and beaten by llJohnsll twelve occasions. (R3496-97) She attempted suicide at least twice and maybe six times. (R3209,3468-69,3496-97) At one point, Wuornos' auntlsister considered committing her to a hospital because of her behavior. (R3468) During the penalty phase the State presented rebuttal in the form of the testimony of Dr. Bernard, an expert in forensic psychology. (R3483-85) Dr. Bernard had conducted a court appointed psychiatric evaluation for the 1981 robbery. (R3488) Dr. Bernard agreed with defense experts that Ms. Wuornos suffered from a borderline personality disorder. (R3490) Dr. Bernard further agreed that she had an identity disturbance, effective instability, deficiencies in judgment and insight, suicidal gestures, and cortical impairment. (R3491-93) Dr. Bernard also diagnosed an antisocial personality disorder. (R3499) Dr. Bernard agreed that, at the time of the offense, Wuornos did suffer from an emotional and/or mental disturbance and that her capacity to conform her conduct to the requirements of law was impaired. However, Dr. Bernard opined that Wuornos' impairment was not substantial and that her disturbance was not extreme. Thus, Bernard did not find either statutory mitigating circumstance, but considered the disturbance and the impairment as non statutory mitigating circumstances. (R3487-88,3500,3505-6) Dr. Bernard found evidence of twelve non statutory mitigating circumstances: (1) mental or emotional disturbance; (2) impaired capacity to conform her conduct to the requirements of law; (3) cerebral dysfunction; (4) borderline personality disorder; (5) dysfunctional family; (6) history of alcohol abuse; (7) inability to cope; (8) lack of judgment; (9) lack of insight; (10) emotional ability; (11) impulsive ness; and (12) genetic and/or environmental deficit. (R3510-12) Barry Wuornos, Appellant‘s uncle/brother, testified that he and his siblings had a Itnormal lifestyle.... pretty straight, straight and narrow family.lI (R3513) Barry did acknowledge that rules but man you could really look up to." (R3514) Barry never saw his father beat Lee. (R3514) Barry did acknowledge that he received a few ttspankings.lt(R3515) Barry claimed that Lee and his father had a very good relationship until she was approximately ten and things began to Itgeta little tight with Aileen discipline-wise.Il (R3515) Barry conceded that he left the home and entered military service when Lee was about ten.
(R3513-16) Barry had not attempted to speak to Lee since her arrest. He had been contacted and cooperate with law enforcement. Barry did ask if she were incarcerated, but "there was no reason for me to talk to her." He never asked how his sister was doing. (R3520-22) Barry did not recall receiving a phone call from the defense team's investigator. (R3519-20,3522) Barry did provide some insight into Appellant's biological father. He was "quite a rusty individual" who was "pretty abusive.I1 (R3524) Once he threw Barry down and threatened to choke him. Barry described him as "generally a criminal-type.tt
(R3524)
SUMMARY OF ARGUMENT
Throughout the trial, Appellant alleged numerous discovery violations. The trial court never conducted an adequate Richardson hearing. The State improperly used evidence of six collateral murders which ultimately became a feature of the trial. Any slight relevance is substantially outweighed by the prejudicial effect. The State exploited Wuornos' love and for Moore, a police agent, in extracting an involuntary confession.
The police action in this case violated due process. The trial court's denial of individual voir dire hampered Appellant's ability to uncover prejudice. In light of the massive publicity, the requested change of venue should have been granted. The court also should have granted several valid challenges for cause. At the penalty phase, inadequate instructions failed to channel the jury's discretion. Additionally, the State presented evidence and argued several non statutory aggravating factors and engaged in otherwise improper argument. Furthermore, the trial court improperly found three aggravating circumstances which were not supported by the evidence, and the court ignored valid mitigating circumstances. Additionally, the evidence is insufficient to support the convictions; the evidence established self-defense and force did not accompany the theft.
Additionally, Florida's death sentencing scheme is unconstitutional fora variety of reasons.
ARGUMENT
Aileen Wuornos discusses below the reasons which, she respectfully submits, compel the reversal of her conviction and death sentence. Each issue is predicated on the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 9, 16, 17, and 22 of the Florida Constitution, and such other authority as is set forth.
POINT I
APPELLANT WAS DENIED HER CONSTITUTIONAL
RIGHT TO A FAIR TRIAL WHERE COUNSEL
REPEATEDLY ALLEGED NUMEROUS DISCOVERY
VIOLATIONS AND THE TRIAL COURT FAILED TO
CONDUCT AN ADEQUATE RICHARDS ON'^
HEARING.
There was never any doubt that Appellant intended to participate in discovery. (R4048) There was frequent argument at several pretrial hearings on each side's failure to comply fully with discovery rules. At one such hearing, defense counsel claims to have received only nine pages of discovery on the Citrus County case. (R4960-61) Counsel has learned from a Citrus County investigator that he has I1volume1lot material.
(R4960-61) Discovery or lack thereof was also hot topic at hearings held on June 3, 1991, November 22, 1991, and January 3, The first discovery violation alleged by Appellant occurred right before jury selection which began on Monday, January 13, 1992. (Rl) Defense counsel pointed out that, on the previous Friday afternoon, the State provided a statement of Jacqueline Davis, Mr. Mallory's girlfriend. The statement was taken on December 18, 1989, by the lead investigator in the case and contained information critical to the defense, i.e., Mallory's history of sexual abuse pertaining to women. (R12-13) Defense counsel requested a continuance so they could further investigate this critical aspect of their defense. (R13-15) Defense counsel Richardson v. State, 246 So. 2d 771 (Fla. 1971).
also pointed out that the State provided a list of twenty-one additional witnesses only last week and moved to exclude them.
(R15-16)
The State assumed that all discovery had been completed.
The State claimed that defense counsel had been invited to the prosecutors office on three occasions to review discovery materials in order to be sure that discovery was complete. (R16) The State claimed that defense counsel never showed up for any of the appointments. (R16) Defense counsel denied any knowledge of the appointments, the trial court said the issue would be addressed later, and announced that jury selection would begin.
(R21) Regarding the statement of Jacqueline Davis, the prosecutor claimed to have recently become aware that Investigator Horzepa had a taped statement from Davis in his possession. (R16-17) As soon as he became aware of that fact, the prosecutor had the statement transcribed and provided it to the defense on the morning of trial. (R17) The prosecutor claimed that the "pertinent incident" [that when Mallory was eighteen, he was charged with burglary] was inadmissible, unsubstantiated hearsay. (R17-18) The trial court denied Appellant's requested continuance, stating that further investigation could be done during the evening recesses. (R14- Defense counsel next made allegations of the States failure to comply with discovery rules during the testimony of Lawrence Horzepa. On direct examination, Horzepa referred to some type of documents in an attempt to refresh his memory. Defense counsel asked if the documents had been provided in discovery. The prosecutor promised to give the document to defense counsel "in just a moment before cross-examination.Il (R1091) Counsel formally requested a Richardson ruling as to each of the documents that the witness referred to while testifying. (R1091- 92) The State denied that a discovery violation had occurred.
The trial court ruled:
I've reviewed what's here and I'm satisfied that there's been no violation. And I don't know what's in the other instrument. We may have to have some hearing on that.
DEFENSE COUNSEL: Your Honor made the ruling for the record. And for the record, it's not in our hands yet.
PROSECUTOR: I just recovered it from -- DEFENSE COUNSEL: For the record, it's now in my left hand.
PROSECUTOR: No further questions of the witness, Your Honor.
THE COURT: Just a minute. Are you prepared to proceed to cross now that you have the item?
DEFENSE COUNSEL: No, Your Honor, since it was just put in my hand a few seconds ago.
THE COURT: You can have a couple of minutes to look at it, sir.
DEFENSE COUNSEL: May we take a recess, Your Honor -- THE COURT: No. We'll just wait for you to look at it.
DEFENSE COUNSEL: Judge, there's another one we haven't gotten yet.
THE COURT: As soon as it gets here, it will be delivered to you.
(R92-94) The prosecutor stated, for the record, that the documents provided to defense counsel, were the officer's notes made in preparation to testify. (R1094) Defense counsel later blamed a blunder they committed during cross-examination on the short time they had to review the documents. (R1103-7) When the State called Deputy Tony Cameron of the Suwannee County Sheriff's Department, defense counsel made a ItRichardsonMotion.Il
(R1193) Defense counsel moved to exclude the witness and the trial court overruled his objection and denied his request.
(R1193-94) As in the previous instance, the court failed to conduct any type of hearing. When the State called the next witness, Deputy Alan Brooks, defense counsel again requested a Richardson hearing. (R1202) The trial court perfunctorily denied Appellant's Itongoing objection.t1 (R1202) The State requested an opportunity to respond to Appellant's accusation on the record and the trial court promised that the lunch break would be used for that purpose. (R1202) During the testimony of Detective David Taylor of the Marion County Sheriff's Office, the State offered some physical evidence relating to the murder of Humphreys.
DEFENSE COUNSEL: To tell you the truth, a lot of this Marion County stuff we've never had access to. If we can take a few moments.
THE COURT: Has it been available -- THE COURT: Has it been available -- I'm not going to take any recess. You've had all the opportunity on that one. Is there an objection?
DEFENSE COUNSEL: Yes, Your Honor.
THE COURT: The objection is noted and overruled. Let the items be received and marked into evidence by their proper number -- DEFENSE COUNSEL: As to all of them?
THE COURT: Yes, sir.
DEFENSE COUNSEL: Will Your Honor entertain argument?
THE COURT: No. Each of these items will be received and marked by its proper number.
(R1242-43) Defense counsel also objected to the next witness, Ken Jones, a friend of Humphreys. (R1258-60) The State again asked for an opportunity to be heard on the issue and the trial court assured, ttYou'll be heard on it in good time,.... IT (R1259) Appellant renewed her objection to the next witness also.
(R1261-62)
Eventually, defense counsel began cross-examination witha request for the witness' reports. Counsel would then examine the reports (presumably for the first time) and then attempt an effective cross-examination. (R1324-25,1365-66) Appellant renewed her Richardson objection when the State recalled Donald Champagne. (R1367-68) The issue was finally discussed at some length on the record.
MR. NOLAS [DEFENSE COUNSEL]: Yes, Your Honor. We've - - as some of the witnesses testified, we have recognized that the reports from some of the witnesses -- one obvious example is the report, the synopsis that Detective Horzepo (sic) was using, were - - had not been previously provided to the defense.
And there were certain other Richardson related issues that we bought (sic) up. We objected to those.
Your Honor denied the objection.
I don't know what else needs to be done on the record. At some point Your Honor may entertain a hearing in that record (sic) but -- THE COURT: You asked for the hearing, I'm giving it to you. I was perfectly satisfied. My understanding of the law is that a Richardson Hearing is only required when the state does not comply with the ten day notice provisions of similar fact.
It appears notice was given some five months prior to the trial. Therefore, no Richardson Hearing was required. If I'm in error, Erhart (sic) is in error, and he'll have to revive his book.
MR. NOLAS: I'm sorry, Judge.
THE COURT: That's the reason I ruled the way I did.
MR. NOLAS: Not as to the specific issue of Williams.
Obviously the state did indicate sometime in the past what Williams' Rule evidence the state intended to introduce, but it's the particular reports that had been prepared by the witnesses.
There were a number of such items as we were going through, it appeared those items had not be (sic) provided.
THE COURT: Again, if you're going to make a motion, be specific about it. I don't know what you're hinting at now.
I have tried to give you full swing of everything, I'll still give you full swing. I want to know what it is you're talking about rather than some shotgun attack.
MR. NOLAS: Deputy -- we can just give Your Honor list. Deputy Cameron we had no reports provided.
MR. TANNER [PROSECUTOR]: Deputy who?
MR. NOLAS: Cameron. We had the name but no reports.
THE COURT: Were they available, Mr. Tanner?
MR. DAMORE [PROSECUTOR]: Judge, the state has provided every document that it has in its possession. With regard to Deputy Cameron, who I believe is a Suwannee
(sic) County deputy who located an automobile.
I'm not aware that Deputy Cameron provided or produced any reports. I don't believe on the witness stand he was referring to any reports.
And I'm not aware of any such reports as to the recovery of the vehicle by Deputy Cameron, if I'm talking about the right witness. I have never had any reports from Deputy Cameron.
Your Honor, and he is also listed asa witness.
He could have been deposed by defense had he chosen to do so.
THE COURT: What's your next one?
(R1381-83) Defense counsel then listed five witnesses who had testified over Appellant's Richardson objection. (R1383-85) The prosecutor denied that any discovery violation had occurred and, in the alternative, demanded that defense counsel show some type of prejudice. (R1383-87) There were accusation from both sides that the other party was misstating the facts. The trial court's input, for the most part, consisted of the following:
THE COURT: Were they [Deputy Cameron's reports] available, Mr. Tanner [the prosecutor]?
What's your next one?
What's your next one?
(R1382-83,1387) There was further discussion of Jacqueline Davis, whose name was allegedly provided to the defense on the eve of trial. (R1387-89) The State claimed that they had provided the defense with Davis' name at least ten months ago.
(R1387) All parties agreed that efforts would be made to put defense counsel in touch with Ms. Davis. (R1387-89) Following this brief and entirely unsatisfying "Richardson hearing'll the trial continued. (R1390-91) Detective Jimmy Pinner testified concerning the investigation of Antonio's murder. (R1575-98) At the beginning of cross-examination, defense counsel asked Detective Pinner if he brought his reports referencing this case. Detective Pinner stated that the reports were in his car outside. (R1598-99) At this point, defense counsel requested that the detective provide the defense with copies of his reports. Counsel stated that Appellant had received no reports relating to Antonio's murder in Dixie County. (R1599) The prosecutor claimed that the defense had been provided with all reports within the "possession of the state attorney's office of Volusia County.'# (R1599) THE COURT: That's all right. If he wants what this man has, let's go get it right now. We'll sit and wait right here.
DEFENSE COUNSEL: Thanks, Judge.
THE COURT: You may stand down and go get your reports, sir.
PROSECUTOR: May the record reflect, Your Honor, that reports have in fact been submitted to defense counsel from this office and I have my discovery receipt to prove that.
DEFENSE COUNSEL: Your Honor, that's an issue we can take up at a later time. I'm telling you, we don't have anything from Dixie County.
THE COURT: Go get your reports, sir.
(R1600) After Detective Pinner returned to the witness stand with his reports, defense counsel requested a brief recess to examine the reports. Court remained in session while counsel hastily examined the evidence. (R1604-5) Counsel then attempted
Q: Detective, 1 have tried to keep it, and so has Ms.
Jenkins, in order, including your clips. We put a couple of tabs on the side...and those are just in case something comes up so that you know what we're referring to, because we have not seen these before.
PROSECUTOR: Objection, Your Honor.
DEFENSE COUNSEL: Withdrawn, Your Honor.
PROSECUTOR: Your Honor, I'd ask that the jury be instructed that counsel has had the right to full discovery in this case. Every item that he has -- DEFENSE COUNSEL: That's nonsense, Your Honor. Let's have a hearing on it right now, because we have not.
THE COURT: I don't think we need to do this.
(R1605-6) (emphasis added) Defense counsel then received permission from the judge to copy the four or five volume (the court's description) that Detective Pinner had. (R1606-7) When defense counsel attempted to resume cross-examination, the State objected, contending that Appellant was asking Pinner to testify from other witnesses' reports which Pinner had in his possession.
(R1607-11) The State also contended that all of the documents had previously been supplied to defense counsel. (R1610) Defense counsel denied this assertion:
And if Your Honor wants, we can put Miss Jenkins, Mr. Miller, myself [the defense team], you can have a hearing on it. Those reports have never been provided.
(R1611) The trial court declined Appellant's request fora hearing, Defense counsel had attempted to ask Detective Pinner about Philip Williams, when the State objected. (R1607) Defense counsel pointed out that, after looking through Detective Pinner's files, counsel had formulated some questions regarding Philip Williams. (R1611) Appellant contended that the questions related to the investigation of the Dixie County case (Antonio's murder). Counsel contended that the questions went directly to the issue of whether Ms. Wuornos was responsible for Antonio's murder. (R1612) The court responded:
I have heard enough. It's obvious vou gentlemen don't have your acts together....It is not very Police...to inconvenience this jury with this continuing agony over evidentiary matters...I'm going to give you one hour to get your act together not going to discuss it anymore.
(R1612) Defense counsel attempted to explain his line of questioning and its relevance.
...it's not a fishing expedition. I think I have an idea what the officer will say.
THE COURT: You're speaking with fork in (sic) tongue, sir.
DEFENSE COUNSEL: With all due respect, I don't think so, Judge.
THE COURT: When you say you haven't seen it and now a11 of a sudden you have all this knowledge about it -- DEFENSE COUNSEL: Judge, we read it right before you.
We read it right here.
THE COURT: I still say that's fork in (sic) tongue.
DEFENSE COUNSEL: Well, then we would request a hearing, Your Honor, and let's have Miss Jenkins, Mr.
Miller, all of us testify. Because seriously, Judge, it's -- THE COURT: I don't need to hear what you all have to say at this stage of the trial.
(R1613-14) More accusation from both sides followed before cross-examination continued without an adequate hearing. (R1614- 16) The trial court restricted the cross-examination of Detective Pinner regarding reports that he received from other agencies and that he utilized in his investigation. (R1621-24) Where a trial court is reasonably apprise of a discovery violation, the court must conduct a full inquiry into all of the surrounding circumstances. Raffone v. State, 483 So. 2d 761 (Fla. 4th DCA 1986). There is no question that defense counsel reseatedlv objected, asserted numerous discovery violations, requested hearings, and offered to testify. There can be no question that this issue is preserved. Failure to conduct a full hearing in accordance with Richardson v. State, 246 So. 2d 771 (Fla. 1971), constitutes per se reversible error. Cumbie v.
State, 345 So. 2d 1061 (Fla. 1977).
The purpose of a Richardson inquiry is to ferred out procedural, rather than substantive, prejudice. In that regard, this Court has observed two areas that must be focused on during the hearing. First, the judge must decide whether the discovery violation prevented the defendant from properly preparing far trial. Second, the judge must decide on which sanction to invoke for the discovery violation, "raping from an order to comply, to exclusion of evidence, or even a mistrial1.I' Wilcox v. State, 367 So. 2d 1020, 1022 (Fla. 1979). The I1sanction1inquiry does not only entail what to do with the evidence, but as importantly, what to do with wilfulness conduct by an attorney who intentionally failed to disclose relevant information. The determination concerning the prejudice suffered by the surprised party cannot be made post trial, by either the trial court, Smith
v. State, 372 So. 2d 86 (Fla. 1979), or an appellate court.
Smith v. State, 500 So. 2d 125 (Fla. 1986).
Here, the trial court failed to conduct an adequate Richardson hearing. The extent of the trial court's llhearingll consisted of counsel for both sides trading accusation with the trial court a dis interested observer. (R1381-91,1604-16) The trial judge was obviously attempting to avoid inconveniencing the jury by pushing the law suit forward. (R1612) Unfortunately, as a result, the trial court completely shirked its duty in determining: (1) if in fact a discovery violation had occurred;
(2) if the defendant was prejudiced; and (3) what if any remedy should apply. Instead, the record is replete with bald assertions by counsel for both sides with no resolution of the issues. From the record before this Court, it is impossible to tell if a discovery violation occurred or not. There is at least a prima facie case that a violation did occur. This conclusion is contradicted by the naked claim of the prosecutor who insisted that no violation occurred and, in the next breath, maintained that the defense could not show any prejudice. (R1383-84) Although not necessary at this juncture, prejudice is obvious on the face of the record. Defense counsel was constantly examining reports that he had just received in an attempt to formulated a competent cross-examination. The trial court denied requests for recess to allow Appellant to examine documents. Defense counsel was forced to hastily perse the newly discovered reports and documents while the judge and the jury waited, undoubtedly impatiently.
The alleged discovery violation regarding the statement of Jacqueline Davis presents a special situation. Defense counsel had sought a continuance prior to jury selection based on this allegation. (Rl-21) At first, the trial court ruled Davis' testimony inadmissible. After a proffer in which Davis testified about Mallory's background, a prior burglary and resulting incarceration, and his penchant for marijuana and pornography, the trial court reversed its previous ruling and announced that he would allow the evidence. (R2070-98) Appellant also changed her mind and rested her case without calling Davis asa witness.
(R2098) Despite the trial court's ruling regarding Davis, the court still failed to conduct an adequate Richardson hearing regarding this alleged discovery violation. For one thing, Appellant requested a continuance, prior to trial, to further investigate additional issues that were raised by Davis' statement.12 The Richardson procedural safeguard is especially important when a Brady13 violation is claimed. This is because the prosecution has a continuing duty to disclose to the defendant any evidence favor able to the defendant. Failure to do so results ina due process violation of constitutional proportions when the suppressed evidence is material to the defendant's guilt or punishment. State. Hall, 509 So. 2d 1093 (Fla. 1987).
Jacqueline Davis' statement can be classified as Brady evidence which the State should have disclosed much earlier than they did.
l2 Perhaps if the continuance had been granted, Appellant would have discovered the exculpatory evidence regarding Mallory's 1957 Maryland conviction for assault with intent to rape. See attached Appendix.
l3 Brady v. Maryland, 373 U. S. 83 (1963).
The trial court's failure to conduct any semblance of an adequate Richardson inquiry requires reversal fora new trial.
Defense counsel repeatedly objected, alleged numerous discovery violations, and repeatedly requested a full hearing.
Unfortunately, the trial court allowed both sides to swamp accusation and never made a ruling. Asa result of the trial court's abdication of his duty, per se reversible error occurred.
POINT I1
APPELLANT WAS DENIED FAIR TRIAL WHEN
THE STATE INTRODUCED EXTENSIVE EVIDENCE
OF SIX COLLATERAL MURDERS WHICH BECAME A
FEATURE OF THE TRIAL.
On August 5, 1991, the State filed notice of its intent to use similar fact evidence. (R4142-47,4393-95) Appellant subsequently moved in limine to exclude any and all such evidence. (R4416-24) After hearing argument in the middle of trial, the trial court eventually allowed the jury to hear extensive testimony and to view voluminous evidence that revealed Wuornos' involvement in the murder of six other men. (R1138-85)!!Similar fact evidence in other crimes, wrong, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.!' S 90.404(2)(a), Fla. Stat.
The States case against Wuornos for the murder and robbery of Richard Mallory took only two days. (R671-1130) Over the next four days of trial the jury heard testimony and documentary 0 evidence about six unrelated murders that Wuornos allegedly committed after the shooting of Mallory. (R1131-1900) On the seventh day of testimony, the jury heard Ms. Wuornos testify in her own behalf. (R1913-58) A lengthy cross-examination followed, too much of which dwell on the collateral murders.
(R1958-2063) The prosecutor continued to harp on the collateral murders during final sum mation. (R2157-86) As she did at trial, Appellant contends that the evidence was inadmissible under any theory. At the very least, any slight probative value was outweighed by the substantial prejudicial effect. Ultimately, the evidence became a feature of the trial.
Over repeated strenuous objections by defense counsel, State witnesses recounted finding the body of Charles Richard Humphreys ina remote area of Marion County. Humphreys had been shot six times. (R1193-1226,1283-98) The State was allowed to admit over objection four autopsy photographs of Humphreys, even though the medical examiner indicated that she did not need the photographs to aid her testimony. (R1292-94,1309-12) Humphreys' brief case was admitted over objection. (R1444-45) The jury heard how police found the decomposed body of Troy Burress covered with palm fronds. (R1335-37) Burress had been shot twice. (R1353) The State introduced a photograph of Burress' body as it was found. (R1350-51) Thankfully, the trial court did exclude one photo of Burress/ markedly decomposed body with maggots covering it. The trial court also excluded another photograph of Burress' body on the autopsy table with this scalp decomposed and his Scull exposed. (R1394-95) The jury was apprise of the fact that Burress' body was so decomposed police had to resort to dental records to identify him. (R1397) The State also presented evidence concerning the investigation of the murder of David Spears. (R1416-35) A Citrus County sheriff's deputy found Spears' nude, badly decomposed body in southwest Citrus County. (R1423-25) Spears had been shot six times. (R1298-1305) Several pictures of Spears, his body, and his truck were admitted over defense objection (R1416-18) The jury also heard about the recovery of Charles Carskaddon's decomposed body in Pasco County. (R1454-68) Carskaddon died of multiple gunshot wounds to the chest and abdomen. (R1478) The medical examiner told the jury that she found a total of nine bullets in Carskaddon's body. It was impossible to trace the bullets' paths due to the decomposition and insect activity. (R1472-73) The jury also heard about the murder of Peter Siems (R1492-1532), the murder of Walter Eno Antonio (R1550-51,1575-1680). Antonio had been shot four times, once to the back of the head and, among other things, his dentures were missing. (R1652-76) Much documentary and physical evidence was admitted as to each of the six murders.
from Wuornos.
The jury also heard from two men who llescapedll Robert Cops picked up Wuornos at a truck stop. Cops claimed that he rebuffed Appellant's prostitution proposal which seemed to anger Wuornos. (R1693-99) When Cops noticed Wuornos, small- @ caliber gun in her purse, he pulled off at the next exit and, using a ruse, got Wuornos out of his truck and drove away.
(R1699-1701) After he locked her out of his truck, Cops claimed that Wuornos cursed and threatened him as he drove away. Cops told the jury that Wuornos was attempting to retrieve her gun from her purse as he fled. (R1701) James Delarosa also picked up Wuornos near Daytona Beach. Wuornos quoted Delarosa some price for sex, but Delarosa declined. When Delarosa dropped Wuornos off, she slammed his car door and did not thank him for the ride. (R1713-23) Investigator Horzepa relayed to the jury Wuornos, confessions to the six collateral murders. (R729-1900) The jury heard how Wuornos gunned down Spears as he stood next to his truck. Spears attempted to run to his truck and drive away, but Wuornos chased him down and shot him again. As Spears backed away from her, Wuornos shot him again. Wuornos admitted that she might have shot Spears once more to "make sure" that he died.
(R1734-36) The jury heard how Wuornos shot Carskaddon nine times, reloaded, and shot him again. (R1736) The jury heard details of Wuornos, murder of Peter Siems, Itthe Christian guy.11
(R1738-39) Wuornos told Horzepa that she always aimed for the victim's center mass area of the torso. (R1739) Horzepa explained how Wuornos shot Troy Burress after she became insulted at his offer of a ten dollar payment. (R1742) After arguing with Burress, Wuornos shot him as he backed away. Burress turned and attempted to run, so Wuornos shot him in the back. (R1742) Wuornos shot Humphreys twice in the torso causing him to stagger and fall. When he got back up, Wuornos shot him again. She delivered the coup de gas out of pity, when she heard him gurgling. (R1744) Walter Antonio did not want to pay Wuornos, so she pulled out her gun. A struggle ensued resulting in Wuornos shooting Antonio. When he got up and attempted to run away, Wuornos shot him once in the back and twice more as he lay on the ground. (R1745) Horzepa testified that Wuornos rationalize the killings by pointing out that the victims were older, and their parents were probably dead. (R1747) Horzepa also described how Wuornos stole the victims' property following the murders.
Of course, defense counsel objected to all of the testimony and evidence relating to the collateral crimes. The trial court allowed Appellant to register a continuing objection on the record. In his zealous ness to preserve the issue, defense counsel sometimes clearly irritated the judge. At the close of the States case-in-chief, Appellant moved fora mistrial contending that the similar fact evidence had become a ttfeaturett of the trial. The trial court denied the motion. (R1901-3) The States theory of admissibility was based on their contention that Appellant had a common scheme or plan to use her status asa prostitute to lure and trap men in isolated areas so that she could rob and kill them with her.22 handgun. (R4580- 82) The State prepared a chart which, they contended, illustrated the numerous similarities among the six collateral murders. (R4582) Close scrutiny of the chart reveals twenty-two separate categories of ttsimilarities.ooSeven of those categories relate directly to the gun and ammunition used in the murders.
Even the experts conceded the particular brand of ammunition and rifling characteristics of the weapon were not at all unusual.
Six other categories listed on the chart related directly to the victims' cars. None of the listed oosimilarities are particularly unique, especially when compared to other robbery murders. The State frequently mentioned that Appellant oospecializedoo in older men. (R1084-86) Actually, the age of the victims span a quarter century. (R4582) Some of the bodies were clothed, some were nude. Some were shot in the back and/or head, some were shot in the chest. In some cases, personal items of property were left with the body. The geographical area containing the bodies was rather large, i.e., central Florida.
Some of the bodies were found in wooded areas, some were not.
Some of the victims were traveling on major thoroughfares, others were not. The police have yet to find the body of Peter Siems.
The differences in the cases are more numerous than the similarities. The States proof of the collateral murders merely established Appellant's propensity to kill. It was character assassination, pure and simple. The incidents involving Cops and Delarosa were completely irrelevant. Delarosa's testimony established, at most, that Wuornos could be rude. (R1713-23) Appellant submits that it is significant that the six collateral murders occurred after Mallory's death. This refuses the States theory that Wuornos had the intent to kill Mallory before their encounter. This conclusion logically arises from the fact that, prior to Mallory, Wuornos had killed no one. The State presented no evidence establishing a preconceived plan to kill Mallory or any other llJohns.ttHence, the murders committed subsequent to Mallory's death failed to prove the States theory of Appellant's plan. The evidence of the collateral murders proved simply propensity.
Even assuming relevance, evidence of collateral crimes is not necessarily admissible. Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. 90.403, Fla.
Stat. As the Eleventh Circuit Court of Appeal said in construing the equivalent federal rule:
Probity in this context is not absolute; its value must be determined with regard to the extent to which the defendant's unlawful intent is established by other evidence, stipulation, or inference. It is the incremental probity of the evidence that is to be balanced against its potential for undue prejudice.
(Citation omitted) Thus, if the Government has a strong issue on the intent issue, the extrinsic evidence may add little and consequently will be excluded more readily. (Citation omitted).
United States. Beechum, 482F. 2d 898, 914 (5th Cir. 1978) (9 banc).
There is little if any incremental probative value to the evidence at issue, but its damning effect asa raw appeal to juror emotion and bias cannot be denied. From a legal standpoint, all of the adverse considerations set forth in 0 Section 90.403, Florida Statutes are clearly present.
Notwithstanding the limiting instruction given by the trial court, the jury could not reasonably be expected to disregard the extremely potent evidence and apply it solely to prove intent, common scheme or plan, etc. Moreover, the shootings were too dissimilar for the jury to law fully infer that Appellant's intent was the same in each of the murders.
In addition to hearing details of six collateral murders and, if you believe the States theory, two aborted abduction and murders, the jury heard irrelevant and highly prejudicial details about the murder victims. Over vehement objections, the jury heard that Humphreys was an HERS investigator for the child protection team. (R1259) Additionally, he was a retired police chief from Alabama. (R1226-27) He carried a badge which Wuornos evidently stole. (R1235,1250) He was a member of the International Association of Police Chiefs. (R1236) He was a member and supporter of the Florida Association of State Troopers. (R1268) He had not imbibed in any alcohol or drugs prior to his death. (R1297) Last, but not least, in his brief case Humphreys carried a picture of Itpraying hands."
(R1437-38,1444-45)
The jury also learned much about the character of Peter Siems. Over objection, they learned that his profession was "charity church work." (R1524) Siems' son testified that he thought that his father would routinely carry bible on trips.
(R1532) Another witness testified that Siems carried many Bible in his travels in order to hand out to invalids. (R1728) This witness met Siems at an antique shop and developed a rap port with him through their Itchurchaffiliation.Il (R1726) The jury learned that, at the time of his death, Siems had been married for more than twenty-five years and always lived with his wife.
(R1533-34,1727) But for his untimely death Siems' trip itinerary would have included a visit to his son in Arkansas, his mother in New Jersey, and a missionary team that the entire family supported. (R1726) Defense counsel specifically objected and moved fora mistrial on this irrelevant and prejudicial information. (R1524,1532-40) Although Payne v. Tennessee, 501 U. S. - (1991), ostensibly now allows victim impact evidence, the evidence, to be admissible, must be relevant to a material fact in issue. The challenged testimony in this case was not. See Bryan v. State, 533 So. 2d 744, 746-47 (Fla. 1988). The inflammatory evidence concerning the victims' character was akin to the evidence presented by the State in Burns v. State, 18 Fla. L. Weekly S35 (Fla. Dec. 24, 1992). The Burns trial court allowed evidence of the police officerlvictim's professional training, education and conduct as an officer. This Court held such admission to be error, although harmless in that particular case.I4 Appellant's case (the issue being whether Mallory's shooting was in self- A number of dis interested eyewitnesses observed Burns shoot the officer in cold blood.
defense) is a much closer case than Burns. The error cannot be ter med harmless at the guilt or penalty phases.I5 Counsel speculates that the State could not find any similar evidence regarding the other four victims that would have revoked jury sympathy. If they had such evidence, the State undoubtedly would have presented it. The State did produce irrelevant testimony concerning Antonio's murder. Although the medical examiner could not determine the sequence of the shots (R1675), she testified that if Antonio had received only the one wound to the lower back, he would have lived, but he would have been paralyzed. (R1665-66) Like Humphreys, Antonio had not been drinking prior to his encounter. (R1672) The State argued the collateral murders extensively during closing argument. The prosecutor told the jury that they were dealing with "six men's lives. 1 1 (R2185) The prosecutor also used two large charts as demonstrative aids during final sum mation. (R2252-53) The charts depicted the locations of the various bodies, cars, and other evidence of the collateral murders. Defense counsel pointed out that the prosecutors action magnified the Williams[v. State, 110 So. 2d 654 (Fla.
1959)] rule error and, if it were not already, made the collateral murders a feature of the trial. Additionally, the trial court denied Appellant's requested modification of the It is interesting to note that while the State sought to canonize the victims and assassin ate Appellant's character, the State successfully prevented Appellant's attempts to attack Mallory's character. (R1112-13) instructions which might have diminished the prejudice. (R2118- If one compares the sheer volume of the testimony and evidence relating to the collateral murders, the inescapable conclusion is that such evidence dominated the trial. Initially, Appellant contends that the evidence was irrelevant to prove any material issue. Even if this Court perceives some slight relevance, it is substantially outweighed by the prejudicial effect on the jury. The States action in "going that extra mile1@by presenting the completely irrelevant but extremely prejudicial evidence regarding Humphreys and Siems personal life removes any doubt whatsoever that Wuornos received an unfair trial. Finally, near the end of the States case it becomes abundantly clear that the collateral murders become a fvfeaturell of the trial. A new trial is mandated.
POINT I11
THE TRIAL COURT ERRED IN REFUSING TO
SUPPRESS APPELLANT'S CONFESSION WHERE IT
WAS INVOLUNTARY ASA RESULT OF IMPROPER
INDUCEMENT AND, ADDITIONALLY, WAS
OBTAINED IN CONTRAVENTION OF APPELLANT'S
CONSTITUTIONAL RIGHT TO COUNSEL.
During late November or early December of 1990, the Volusia County Sheriff's Department, the Citrus County Sheriff's Department, the Marion County Sheriff's Department and the The findings of fact relating to Appellant's confession is lifted, practically verbatim from the trial court's order.
(R4380-83)
Florida Department of Law Enforcement combined their personnel and began a joint investigation concerning certain homicides that had occurred in the central Florida area. This team of investigators began to focus on two subjects identified to them as Aileen Wuornos and Tyria Moore. Efforts were made to locate Ms. Moore, both in Florida and in Ohio. Efforts were made to locate Wuornos in Volusia County. Ms. Wuornos was located on January 8, 1991 in Volusia County resulting in her subsequent arrest on January 9, 1991 for an outstanding warrant charging her with carrying a concealed firearm and a traffic offense.
At approximately the same time, Ms. Moore was located in the state of Pennsylvania by Pennsylvania authorities. Ms. Moore was not arrested, but was placed in some type of custodial arrangement with the Pennsylvania authorities. Later that custodial situation was assumed by Florida law enforcement authorities, who, on the 10th of January, having learned of Ms.
Moore's whereabouts, proceeded to Pennsylvania to make contact.
Ms. Moore, at the request of and with the assistance of the Florida law enforcement officials, returned to Florida with law enforcement officials and remained in their custody until January 16 at which time she was allowed to return to Pennsylvania.
Though a suspect during this period of time, Ms. Moore was never charged with any criminal offenses and voluntarily cooperate with law enforcement officials. Her primary motivation in doing so was to clear herself of any criminal wrongdoing. In the process, she compiled with all requests of police officers, including those that were specifically directed to elicit statements and information from Ms. Wuornos. These included writing a letter to Ms. Wuornos at the county jail and the taped telephone conversations with Ms. Wuornos, originating from the county jail, collect to Ms. Moore, at the motel room that had been provided by Florida law enforcement officials for Ms. Moore.
Ms. Wuornos remained in custody at the Volusia County Jail throughout this time period charged with carrying a concealed firearm. She remained in custody during the telephone conversations and the videotaped confession on January 16, 1991.
Ms. Wuornos had been arrested on the 9th and had been provided witha first appearance hearing on January 10, 1991. Counsel had been appointed to represent her from the Office of the Public Defender of the Seventh Judicial Circuit during the period of the telephone conversations and subsequent videotaped confession.
Asa result of the request of the law enforcement authorities and with the consent of Ms. Moore, some ten (10) audiotape exist reflecting numerous telephone conversations initiated from the Volusia County Jail from Ms. Wuornos to Ms.
Moore discussing Ms. Moore and Ms. Wuornos as suspects of the homicides under investigation. On the initial tapes, the first two days of the tapes, Ms. Wuornos indicates that she and Ms.
Moore are subjects of mistaken identity and that neither had anything to do with the homicides. During this time period, Ms.
Wuornos inquires whether Ms. Moore is alone or whether there are police officers present during these phone conversations. Ms.
Moore lies to Ms. Wuornos and indicates that she is alone. The third day of phone conversations indicates a more emotional Ms.
Wuornos and a more emotional Moore. At this time Ms. Wuornos promises to confess, clear Ms. Moore and take care of her. Ms.
Wuornos, also during all these tapes, has professed her love for Ms. Moore without such being reciprocated by Ms. Moore. Upon termination of the phone conversations, Ms. Wuornos contacts authorities who make arrangements for Sergeant Munster and Investigator Horzepa to meet with Ms. Wuornos at the Volusia County Jail and videotape any statements that she wishes to make.
Upon completion of the arrangements and at the instigation of Ms.
Wuornos, she is videotaped ina custodial setting at the county jail. Having been advised of her Miranda*7 rights and having been provided with the services of the Office of the Public Defender of the Seventh Judicial Circuit and against advice of counsel, Mr. O'Neill, Ms. Wuornos makes a lengthy statement of confession to certain homicides.
A. Appellant's Statement was Involuntary in that It was Obtained as a Result of Improper Inducement.
A voluntary confession is one "not...obtained by any direct or implied promises, however slight.I1 Bram v. United States, 168 U.S. 532 (1897). The Supreme Court has more recently pointed out that in Bram "even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too l7 Miranda v. Arizona, 384U. S. 436 (1966) sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess.It Brady v. United States, The police used Tyria Moore to illegally coerced Wuornos to confess. Wuornos and Tyria Moore were long-time friends and lesbian lovers. (R2334) Tyria ended her relationship with Wuornos and left Florida, leaving a devastated Lee Wuornos behind. (R2361) When police located Tyria in Pennsylvania, they contacted her and convinced her that she was a suspect in all the murders. Actually, police had virtually eliminated Moore asa suspect at that time. (R2370-74) Preying on Moore's fear of being charged, police convinced her to return to Florida with them to help coax a confession from Wuornos. (R2325,2988,3007, 3052) Once police paid for Moore's flight to Florida, they put her up ina motel and helped her compost a letter to Wuornos, who was sitting in jail. (R2331-32) Moore knew that Wuornos still loved her and missed her. (R2972-73) Moore's letter to Wuornos worked and, as soon as she got the letter, Lee called Tyria professing her undoing love. (R3013) Over the next three days, Moore and Wuornos had approximately ten phone conversations, all of which the police recorded with Moore's cooperation. (R2506-2716,3009) During all of the phone conversations, a police agent sat next to Tyria and coaches her using written notes. (R3014-18) Rose Giansante, a FDLE special agent who was especially close to Tyria, frequently sat next to Tyria in order to keep her calm and focused. (R2234- 36) During the conversations, Moore lied to Wuornos, accused @ Wuornos of not loving her anymore, threatened suicide, and told Wuornos that the police were harassing her family. (R2668- 69,2689,3031-35,3068) The police coaches Moore how to manipulate Wuornos when Lee became emotional and began crying. (R2808-12, 3037) At one point during the phone conversations, Wuornos told Moore that she loved and missed her so much that she would die for her; that she would never do anything to hurt her. (R3066- 67) In an attempt to coax incriminating statements, Moore told Wuornos that she must not love her anymore, since Wuornos was allowing Moore to get into legal trouble. (R3066-68) The plan finally worked and an emotionally shaken Wuornos, whose jail guards thought she should be on suicide watch, broke down and agreed to confess. (R2306-7,2790,3019-20) In extracting the confession, the police improperly exploited Appellant's great love for Tyria Moore. Lee Wuornos had more love for Tyria Moore than any person on this planet.
The States shame less exploitation of that love must be condemned.
In Lynum v. Illinois, 372U.S. 528 (1963), police told the defendant that she would lose her welfare payments and the custody of her children, unless she cooperate. In Rogers v.
Richmond, 365 U. S. 534 (1961), police threatened to take the defendant'swife into custody, unless he confessed. In both cases, the resulting confessions were held to be coerced.
The record in the instant case (especially the unedited videotape) makes it abundantly clear that Appellant's sole motivation in confessing was to protect Tyria Moore. At several junctures in the tape, the appointed lawyer reveals his futile attempts to silence Wuornos who, the lawyer states, is completely lVfocused1lon clearing "her friend [ M ~ ore ]. ~Wuornos ~ was a lost cause by the time the lawyer arrived. Her subsequent waiver of counsel was invalid. Investigator Horzepa conceded that, during her statement, Wuornos repeatedly indicated that she was confessing so that Tyria would not be involved. (R2298) Wuornos reveals her motivation in this regard upon first meeting Horzepa.
(R2312) After the emotional wringer Wuornos had been through during Tyria's phone calls, especially in her weakened state,'* Appellant recognizes that the detectives' manipulation of Wuornos' love of Moore does not necessarily equal coercion IIas a matter of law." Coleman v. State, 245 So. 2d 642 (Fla. 1st DCA 1971). However, Tyria Moore's action asa police agent and Appellant's corresponding motivation is a consideration in determining the involuntariness of her statementtg. Statements suggesting leniency are only objection able if they establish an express quid pro quo bargain for the confession. State. Moore, 530 So. 2d 349 (Fla. 2d DCA 1988). In Bruno v. State, 574 So. 2d Wuornos jail guards believed that she was suicidal.
(R2306) Additionally, Wuornos, a heavy drinker, was forced to go Ilcold turkeyvfi l9 Another consideration is the extended period of incommunicado interrogation which has been called "inherently coercive.Il See, e, q, Davis v. North Carolina, 384 U. S. 737
(1966).
76 (Fla. 1991), this Court declined to find the defendant's statement involuntary where the police told him that, if he gave a sworn statement exculpating his son, his son would not be charged. This Court pointed out that the police legitimately believed that Bruno's son was involved. Prior to his confession, police specifically told Bruno that they would not make any promises to either Bruno or his son. This Court found no over reaching by the police. Bruno, 574 So. 2d at 8 0.
Unfortunately, the same cannot be said about Appellant's case. Wuornos told police immediately that her sole motivation in confessing was to protect Tyria Moore. (R2312) Despite this fact, other than the usual Miranda warnings, police failed to specifically tell Wuornos that they could make no promises regarding the treatment of Moore. Wuornos had no idea that police no longer considered Moore asa suspect. Hence she felt compelled (as a result of Moore's coercive phone conversations) to confess.
The police conduct in this case was reprehensible. They used Wuornos' considerable love and affection for Tyria Moore and parlayed that emotion into a confession. Appellant submits that the police action in this case transcends the bounds of due process. In State. Glosson, 462 So. 2d 1082 (Fla. 1985), this Court held that a continent fee agreement with an informant violates due process under our state constitution. See also, Hunter v. State, 531 So. 2d 239 (Fla. 4th DCA 1989) [using informant whose sentence would be reduced if he made new cases violated defendant's due process rights]; State. Banks, 499 So.
2d 894 (Fla. 5th DCA 1986) [utilizing confidential informant who used sex to obtain contraband constituted entrapment]. Appellant submits that the State action in the instant case is as reprehensible as that in the cited cases. The concern is the same. Was Appellant's love for Tyria Moore so great that she would do anything, even lie, to protect her? Therein lies the fault of the police over reaching in this case.
B. The Police Obtained Appellant's Confession in Contravention of Her State and Federal Constitutional Riqht to Counsel.
Police had focused their attention on the Appellant by January 6, 1991. (R2725-27) The investigation team wanted to gather more evidence against Wuornos before arresting her. They became concerned when one of two undercover cops, who were with Wuornos at a bar, called the investigation team on January 9.
The undercover agent informed the team that a "biker party'! was scheduled at the bar that evening. He expressed concern that Wuornos might get on the back of a motorcycle with someone and they would lose track of her. (R2730) As a result, police decided to arrest Wuornos on a 1986 warrant for carrying a concealed firearm. (R2297,2732-40) After Wuornos was arrested on January 9, had appeared at a first appearance hearing on January 10, and counsel had been appointed to represent her.
(R4382) Police then began implementation of their plan, using Tyria Moore to extract a confession from Appellant.
Appellant contends that the police deliberately circumvented her right to counsel2'. The police as much as admitted that they arrested Wuornos on the 1986 warrant to secure her custody and to attempt to develop more evidence against her. The police deliberately refrained from informing Wuornos that she was a prime suspect in the murders. Hence, Appellant/s arrest on the warrant was a pretext, so that the police could investigate Wuornos' involvement in the murders without providing the constitutional rights that would normally attach at the time of her arrest. By arresting Wuornos on the warrant, the police accomplished an "end run" around Appellant's Sixth Amendment and Florida Constitution right to counsel as to the murders.
If police had arrested Wuornos on the murder charge, they clearly would have been prohibited from using Tyria Moore to break down Appellant's resistance and convince her to confess.
See, Peoples v. State, 17 Fla. L. Weekly S713 (Fla. Nov. 25, 1992) and Taylor v. State, 596 So. 2d 957 (Fla. 1992). As in Peoples, the police ttknowinglycircumvented the accused's right to have counsel present to act asa 'medium' between himself and the State." See -aI los - Taylor, 596 So. 2d at 96. The fact that the police ultimately provided counsel late in the game is of no consequence. By that point, Wuornos was completely focused on clearing Tyria Moore. Tyria Moore, acting asa police agent, broke down Appellant's resistance over the three days of emotional, phone interrogation. In light of the Itpretextualtt 2o Amend. VI and XIV, U. S. Const.; Art. I, S 16, Fla.
Const.
custody of Wuornos on the unrelated charge, the police action in this case cannot be condone. The State deliberately circumvented Appellant's section 16 right to counsel by affirmatively concealing the actual reason for her custody. Asa result, Wuornos' confession was unconstitutionally obtained.
Art. I, § 16, Fla. Const.; Amend. VI and XIV, U.S. Const.;
Peolsles; and Taylor.
POINT IV
THE TRIAL COURT IMPROPERLY RESTRICTED
VOIR DIRE OF PROSPECTIVE JURORS AND
OTHERWISE VIOLATED STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS
AND TO AN IMPARTIAL JURY BY IMPROPERLY
DENYING VALID CHALLENGES FOR CAUSE,
BY DENYING THE REQUESTS FOR SEQUESTERED
VOIR DIRE, AND BY DENYING A REQUEST FOR
CHANGE OF VENUE.
Florida Rule of Criminal Procedure 3.300 provides, IICounsel for both State and defendant shall have the right to examine jurors orally on their voir dire." The object of voir dire is to ascertain the qualifications and impartiality of persons drawn as jurors, that is, to elicit information as to the existence of partiality, bias, or other legal grounds fora challenge for cause. Cross v. State, 8 9 Fla. 212, 103 So. 636, 637 (1925); see Morford v. United States, 339U.S. 258, 70 S.Ct. 586, 94L.Ed.
... Actual bias can come to light during voir dire in two ways: by express admission or by proof of specific facts showing such a close connection to the circumstances at hand that bias must be presumed.
(citations omitted).
By definition, presumed bias depends heavily on the surrounding circumstances. Therefore, when a defendant is trying to prove presumed bias, the court has the duty to develop the facts fully enough so that it can make an informed judgment on the question of I1actual1bias. (citation omitted). This duty cannot be discharged solely by broad, vague questions once some potential area of actual meiudice has emerged.
(citations omitted).
United States. Neill, 526 F.2d 1223, 1229-30 (5th Cir. 1976).
Florida has long recognized a party's right to discover whether a prospective juror has formed an opinion that would prevent that person from being a fair and impartial juror, and to fully examine prospective jurors as to the strength and character of any previously formed or expressed opinion in order to develop information relevant to the meaningful exercise of peremptory challenges and challenges for cause. See Blackwell v.
State, 101 Fla. 997, 132 So. 468, 470 (1931) ("The fixed ness or strength of the existing opinion is the essential test of a juror's competencyvv) A meaningful opportunity to discover and, surely once discovered, to explore potential bias through voir dire is an essential component of the rights to due process and an impartial jury. Restriction of questioning which would disclose or explore a juror's bias denies the rights to trial by an impartial jury, to due process and to meaningful, effective assistance of counsel guaranteed by Article I, Sections 9, 16 and 2 2 of the Florida Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Further, the failure to allow a defendant to fully and fairly explore a prospective juror's personal beliefs about the death penalty renders imposition of the death penalty following a jury recommendation for the death penalty unreliable under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 17 of the Florida Constitution.
Here, the defense moved for individual and sequestered voir dire to ask questions concerning Ms. Wuornos' confessions which had been published by the media.2' Counsel argued that individual and sequestered voir dire was essential because any questioning in that area would necessarily inform all other prospective jurors that Ms. Wuornos had confessed and was involved in several murders other than those presently being tried:
DEFENSE COUNSEL: Your Honor, we're going to be limited because confessions have been printed in the media. We can't ask them if they -- COURT: What, now?
DEFENSE COUNSEL: Our clients statements have been printed in the media. We are very concerned that we don't want to ask a prospective juror have you read about her statements, because we're afraid we'll taint the jury.
COURT: Voir dire is fair game.
DEFENSE COUNSEL: Under case law, you need to hear whether the statement has tainted a given juror.
There was much pretrial litigation regarding the public release of, inter alia, Appellant's videotaped confession and a 1981 psychiatric report. The press was an active participant in several hearings. (R3741-3806,4034-44,4047,4852-59) The entire trial was broadcast on Court Television Network. (R4998-5001) Defense counsel was very concerned with the media hoopla surrounding the trial. Fearing extrajudicial influence, he mainly objected to the jury dispensing during recesses. (R799- COURT: You have the right to ask about that. You just ask away all you want to.
DEFENSE COUNSEL: If you ask about the statement and a juror blurts out in front of everybody else, you've tainted the panel.
COURT: I don't think they're wanting to taint the jury, either.
DEFENSE COUNSEL: Right. That's why we're asking for individual -- COURT: If they want to blow their case, that's their function. (sic) I've never tried to alien ate a jury, sir. I let counsel do that.
DEFENSE COUNSEL: Formally, Your Honor, we would object again with regard to voir dire going forward. You have a change of venue motion before you. It's been litigated -- COURT: I told you I will rule on it on the 14th. And as I'm looking at the calendar, today is the 13th.
DEFENSE COUNSEL: In an abundance of caution, Judge, we would raise the objection again. I don't want to waive it by not stating it.
COURT: 1/11 cover you on all points on that.
(R25-27).
Thereafter, voir dire commenced. The first twelve prospective jurors were called, and the limited voir dire conducted by defense counsel on the topic of media exposure revealed that eight of the twelve jurors had been exposed to media coverage; of those, seven had formed either an opinion or based on what had been seen or read."
an llimpressionlt Defense 22 Placed here in summary form, defense question of the first twelve prospective jurors revealed the following: (Names of jurors: R28-29) Millard (R86 - has read articles and seen news broadcast; when asked whether he has formed an opinion, he states, Minot counsel renewed the request for sequestered voir dire based on the answers of several of the jurors:
DEFENSE COUNSEL: Judge, before we get into the specific challenges, we would like to renee our request for individual sequestered voir dire, even if it's a couple really.11R87) Ferrell (R90-91 has read newspaper articles over the past months and would say that I have formed an impression. I have not formed a steadfast opinion.Il Roberts (R95 III had three phone calls this morning telling me that they heard it on the news, they read it in the paper and all this and that. This morning first one, oh, you're going to be on the jury. You know. They knew that I was going to be in Deland." R 96- III have an impression. I don't know if it's worth anything.") Andrews (R91 - I1I have been watching this one develop from way back when Ms. Wuornos was picked up.11 Does not think he could be fair and impartial.)
Dineen (evidently no media exposure) Hardy (R94 - When asked whether she had talked to anyone about the case, she stated, "You hear it. But I mean you take in what you want to take in.") McKnight (R85 - I1I believe in the innocent until proven guilty.
And I've seen news programs that show a lot of evidence that seems to be incriminatory.I1 R86- has formed an opinion) McDaniels (evidently no media exposure) Gimzek (R91-92 IIFrom time to time I've seen and read excerpts from what was happening. And I did form an opinion. I don't know if it would have anything to do with proving this.I n) Rickert (evidently no media exposure) Nickel (evidently no media exposure) Elliot (R88-89 - exposed to information about client from newspapers and television - kept up with Ms. Wuornos' background Itrelativelywellt1and has formed an opinion.) of questions on a couple of the people, because -- 0 COURT: Motion is denied.
DEFENSE COUNSEL: With respect, -- DEFENSE COUNSEL: I understand that you've denied. But so the record will be clear, we're asking for individual voir dire as it relates to the issue of media exposure.
DEFENSE COUNSEL: There's both the statements issue and a collateral acts issue.
COURT: I think I've ruled sufficiently on that. This is twice.
DEFENSE COUNSEL: Respectfully object, Your Honor, on state and federal constitutional rights.
(R119-120).
The trial court recognized a continuing objection by defense counsel to collective voir dire. (R129;134-135) Defense challenges for cause as to McKnight, Elliot, and Millard were denied. (R129-30;132-35). In the next group of seven prospective jurors, five had formed opinions23, five were struck 23 The following is a summary of their voir dire answers:
(jurors names R137) Friend (R149- have been reading quite a bit about it and we live here locally.11R164 - Does not think she can be fair... IlWell, I'm uncomfortable and already have an opinion and everything.11) Miles (R265- has seen media coverage, "But I don't pay much attention to it really.11) Whaley (R151 - agrees that strong opinion based on media coverage would not enable him to be a fair and impartial juror;
IIIrmnot sure I could be real fair."
No11 (R151 - states that her opinion based on exposure to media is "pretty strong.I,) Walter (R151 - agrees that she could not be fair based on media for cause, and one juror was removed peremptorily. (R175-78) Following voir dire of the next group of prospective jurors, defense counsel again asked for individual voir dire. The request followed the responses summarized below.24 Thereafter, Murphy and Barrington were struck for cause, and Walters was removed peremptorily by Wuornos when a challenge for cause was exposure) Grabowski (R157 - exposed to both television and newspaper coverage, and she recalls some of it. wouldn't be able to take them out of my head. But they would not sway my decision on what 1 / 1 1 weigh, what I hear in court. I!)
Clapsaddle (R150 - Answered,!!I would be on the borderline there myself!! when asked whether media exposure may affect his decision. R173- has an opinion based on media exposure that would affect decision as to proper sentence to be imposed.) 24 (jurors names R178-179) State (R199 - has been exposed to case in media but has not formed an opinion - R201!'But I haven't followed it closely, because there's so much of it.!!)
Mills (R202 - states he has I'certainlyll been exposed to media coverage about the Wuornos case in the newspaper and television, but has formed no opinion) Walters (R204 - has read about Wuornos case in the paper, but has formed no opinions) Murphy (R206-208 - has read paper and formed opinions based on details contained in media reports, and it might be difficult for him to put opinion aside) Barrington (R208 - has read paper and formed opinion that would make it difficult for him to be fair and impartial juror in this case) Police (R209 - has seen very little of case and, when asked whether he has an opinion, states, Itnot really, no.") denied. (R239) The next three replacement jurors all admitted having been exposed to media coverage of Ms. Wuornos' case, but all professed to have formed no opinion as to her guilt or innocence. (R255) Despite being admonished by defense counsel not to do so, one prospective juror blurred out that he had read the article about Ms. Wuornos having been adopted. (R268) Two jurors were struck peremptorily (R297-298), and those were replaced by Pagliuca and Wiley, neither of whom had formed an opinion (R301-302), nor read much about the Wuornos case. (R306-07;309) When defense counsel sought to have both Pagliuca and Wiley excused for cause, the following transpired:
DEFENSE COUNSEL: The reason I would like to add for the record is that I feel the nature of the publicity in these causes is such that any exposure -- COURT: I might add that might be a figment of some imagination because I just left you a note that said terribly frustrating when you don't get the answers you want.
DEFENSE COUNSEL: I understand that. I honestly believe that to be a problem. I also believe that because of the Court's prior ruling to deny the motion, that we're forced to use peremptory challenges because (inaudible) media exposure. Just about every single one of these people -- COURT: Most wonderful. Now just start using peremptory and get down to jury picking. Whichever way you want to do it suits me.
(R318).
Two more prospective jurors were called, those being Herbert and Pittman. (R333) Pittman replied that she had "not reallytt formed an opinion about Ms. Wuornos' guilt or innocence, whereas Herbert stated, III don't see how I could not have one, sir."
(R336) Herbert claimed, however, that he could set his opinion aside. (R337) Upon questioning by defense counsel, Herbert admitted having discussed the Wuornos case with others who "very definitely" provided their opinions as to whether Ms. Wuornos was guilty or innocent. (R338) Herbert professed an ability to set those discussions aside. (R337) Defense challenges to Herbert and Pittman were denied. (R359) A separate defense challenge for cause as to Grabowski based on his exposure to the media was also denied. (R360) Prospective juror Hnyla had been exposed to media coverage about this case but denied any partiality. (R393,395) When asked how many times he had seen television coverage about this case, Hnyla replied, "Well, it's how much Mooney they're spending on this case." (R396) When asked whether he obtained any information about this case, Hnyla replied, "Well, I knew what happened, but none -- I wasn't interested in it." (R397) Hnyla also stated that the amount of Mooney being spent on this case is a concern to every taxpayer. (R399) A defense peremptory challenge was exercised when a challenge for cause as to Hnyla was denied. (R403-404) A defense request for more peremptory challenges was granted, and Ms. Wuornos was allowed six additional challenges. (R405) Police, Vasquez, Ballard, McKaig and Hardy were excused for various reasons. (R419,422-26,430-31) Jurors Bugland, Lopez and Sing had seen coverage concerning Ms. Wuornos on television and read newspaper articles, but they claimed not to remember the specifics of the coverage. (R435-37) Ms. Walters had opinions about the case based on exposure to the media. (R437) Ms. Lopez was excused for cause, because she had formed an opinion after discussing the case with her husband, who had contact with Wuornos at the jail where he worked. (R439,494) Mr. Field was excused for cause because of his opposition to the death penalty.
(R499-502)
Juror Ray indicated that he had not been exposed to too much media coverage in the last two months and that he would be able to set aside any formed opinions. (R503,510-11) Ray was struck peremptorily by the defense when a challenge for cause was denied. (R521) Mr. Brown, the replacement juror, was struck for cause due to his opposition to the death penalty. (R525-26) The defense peremptorily struck Holloway, the next juror, who was exposed to both television and newspaper coverage of the Wuornos case. (R530-31) The next juror, Pundit, recalled seeing news flashes of this case. (R539) A challenge for cause was made by defense counsel based on Mr. Pundit's statements that thoughts of his employment might interfere with his ability to pay attention at trial:
PROSECUTOR: Would the fact that you're very busy at work, would that cause a problem at work that would distract you from your duties in the courtroom?
MR. PUNDIT: It might.
PROSECUTOR: Might make k t difficult for you to keep your mind on what the facts of the case are and with that maybe miss something and --- MR. PUNDIT: It might.
(R545) DEFENSE COUNSEL: Pundit. I just wanted to get it right. Mr. Damore asked you certain questions. You also heard a number of other questions while sitting in the court today observing the proceedings. Some of these jurors have been hearing it for two days. You indicated that your thinking about work might interfere with your ability to be a juror?
MR. PUNDIT: Uh-huh.
DEFENSE COUNSEL: Are there specific things about your employment that you might be thinking about, like what's happening at work, that type of thing? Or is it just a general type of thing?
MR. PUNDIT: Well, there are some specific things.
Today in particular my schedule was I should have been running a training class.
DEFENSE COUNSEL: During the course of the trial, would you want it to end quicker because of the situation at work? If you were a juror, would you want the proceedings to finish quicker than they might finish?
STATE ATTORNEY: If Your Honor please, 1 would object.
Virtually every juror in the courtroom wants it to end quicker.
COURT: I think that's true, too, Mr. Tanner. So if there's an objection, it will be sustained.
DEFENSE COUNSEL: Withdrawn, Your Honor. During -- If you were to sit on the jury, during your deliberations would you be thinking about your employment?
MR. PUNDIT: I thinks o.
DEFENSE COUNSEL: May I have just a moment, Your Honor?
COURT: Yes, sir. Mr. Pundit, if you were selected to serve asa juror, could you give your time and your attention to the testimony that comes before you and the instructions of the law to be given to you by the Court and arrive at a verdict?
MR. PUNDIT: I can.
(R546-547) A defense challenge for cause to Pundit was denied, and Judge Blount stated, I1I heard what he said at the last, that he could give his full attention to the hearing of the testimony and the instruction of the law, he could arrive at a verdict."
(R548-549) The defense struck Pundit peremptorily. (R549) Pundit was replaced by Bashaw, (R551), who had seen some media coverage. (R555) Mr. Mooney stated that he had been exposed to media coverage of this case a hundred times and had discussed it with neighbors and friends. (R563) He admitted to having an opinion about this case, but stated that he would try very hard not to let it influence him. (R564) Defense counsel moved to excuse Mooney, citing Ill v. State, 477 So. 2d 553 (Fla. 1985), Gonzalez v. state, 511 So. 2d 700 (Fla. 3d DCA 1987), and Weber v. State, 501 So. 2d 1379 (Fla. 3d DCA 1987).
The challenge was denied, so defense excused Mr. Mooney peremptorily. (R567-568) Mr. Whatley was next. Whatley, too, had been exposed to media coverage of this case and remembers the details of some of the articles. (R575-76) However, Whatley stated that he had formed no opinions based on what had been read. (R577) At this point, having exhausted the supply of peremptory challenges, defense counsel asked for and was refused additional challenges.
(R578-580) The state exercised two peremptory challenges and removed Pagliuca and Sing. (R580) They were replaced by jurors Degayner and Mathis. (R591) Ms. Mathis was exposed to media coverage, Itbut very little about this particular case." (R596) Mathis recalled recent coverage broadcast on CNN and that coverage was aired on channel six when the murder first occurred, but claimed she could put aside any formed opinions, as could Mr. Degayner. (R596) When Mr. Degayner was asked about whether he had come to any conclusions based on what he had heard, he stated, IINo. I think I based, I had, I had a real sick feeling for the person, whoever it was that committed the crime.tt (R604) Defense counsel challenged Degayner for cause, moved for an additional peremptory challenge and a change of venue, but was denied. (R607) The jury was then sworn, (R608), and selection of the alternate jurors began. (R609) Several of those called as potential alternate jurors had been exposed to extensive media coverage. Jacobson had "very definitelygtformed opinions based on video coverage; and he could not be fair. (R618) Anderson had also "drawn a conclusion already." (R620-21) Koo stated, have a bias." (R622) Stanford, had also formed an opinion and was excused for cause. (R658) Ms. Shreiner had also formed opinions based on media exposure. (R663) Mrs. Gross had the newspaper article that appeared the Sunday preceding trial. (R668) After defense counsel exhausted his peremptory challenges in picking the alternate jurors, he requested additional challenges and also requested that venue be changed. Both requests were denied. (R670-71) Based on the foregoing synopsis of the facts and law, it is respectfully submitted, initially, that the court's refusal to grant the defense a change of venue denied due process and produced jurors who were likely biased by pretrial publicity in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 16 and 22 of the Florida Constitution. Further, the arbitrary procedure of requiring defense counsel, in the presence of the entire venire, to explore the content of the media coverage that each juror was exposed to effectively prevented defense counsel from exploring the bias of the potential jurors, which also denied due process and the right to an impartial jury in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 9, 16 and 22 of the Florida Constitution.
Specifically, under the particular facts presented by this case, the articles published by the media in this case contained such unfairly prejudicial information that defense counsel was effectively prevented from asking questions that would reveal the content of the media coverage. The appendix to the motion for change of venue (R4425-4513) contains several pertinent newspaper articles that conclusively demonstrate why questions addressing the content of what publicity one juror was subjected to, in front of all other jurors, was wholly arbitrary and at odds with a fair manner to select a fair and impartial jury. It was not just the content of the articles that was unfairly prejudicial, but the headlines and captions as well, as shown by the following, only a sampling:
(R4439) FLORIDA COPS SAY SEVEN MEN MET DEATH ON THE
HIGHWAY WHEN THEY PICKED UP ACCUSED SERIAL KILLER
AILEEN WUORNOS.
(R4443-4444) MY LOVER LISA KILLER IN BED - hA SERIAL
KILLER TOO.
(R4445) NO FILM PROFITS, STATE TELLS SLAYINGS SUSPECT:
WOMAN ADMITS 2ND KILLING AMONG 7, AFFIDAVIT SHOWS
(R4447) ACCUSED MURDERER TALKS TO PRODUCER: WOMAN SAYS
KILLINGS WERE IN SELF DEFENSE.
(R4452) 24REST MAY OFFER INSIGHT INTO SERIAL KILLER
BEHAVIOR
(R4453) SERIAL KILLER SUSPECT SPENT LIFE IN PRISON, ON
THE LAM
(R4454) OFFICIALS: HATRED OF MEN DROVE ALLEGED KILLER (Article contains graph containing statistics concerning seven central Florida murders, and another headline caption stating llHATRED1l)
(R4461) ACCUSED SERIAL KILLER FACES FIGHT OVER PROFITS
FROM FILM, BOOK DEAL (Article has second caption stating, "If they think they're going to make any Mooney off the deal, we're going to be fighting them every step of the way." Pete Antonacci, deputy attorney general)
(R4462) AILEEN WUORNOS LED ROUGH LIFE ON ROAD (Second page of article has map showing location where seven murder victims were found in central Florida, with statistics and picture of each victim)
(R4474) WAS Wuornos CONFESSION FORCED? JUDGE TO RULE ON TAPES ADMISSIBILITY (Article accompanied by picture with caption, llAccusedmurderer Aileen Wuornos listen to her taped confession Thursday.I1)
(R4476) Wuornos' CONFESSION TO BE ALLOWED: TAPE TO BE
RELEASED TO MEDIA
(R4479) Wuornos TAPES REPLY CHILLING MURDER TALES (Second page of article has picture cautioned, IrrIrm the one that did the killings,' Aileen Wuornos said in a videotaped confession.11 A second caption stated, "Often during the rambling confession, Miss Wuornos said she considered the killings self defense. If the customer were gentle, calm and paid promptly for her services, no violence would occur.11 (R4480)
(R4481) EXCERPTS FROM Wuornos' CONFESSION (The article included, as sub-headings, the following: ltThoughtson punishment, "The victims, It llUpbringingand dreams, l1 "Life asa Prostitute," and "The killings." Under the main headline was the secondary quote, "If it was in western days, they'd put me ina noose and watch...
let the town watch me die." (R4481)
(R4484) ARREST ELATES AREA LAW ENFORCEMENT:
INVESTIGATORS SAY DAYTONA BEACH WOMAN IS LINKED TO 7
SLAYINGS
(R4495) LEVY COUPLE ADOPT ROADSIDE KILLER SUSPECT
(R4498) ACCUSED KILLER'S CONFESSION RELEASED: WUOrnOS
DETAILS ROADSIDE SLAYINGS
(R4512) HIGHWAY HOOKER RECOUNTS 7 KILLINGS (Secondary headline states, IIWuornos talks freely of victims in just-released confession video")
(R4513) "HIGHWAY HOOKER" TALKS ABOUT KILLINGS IN VIDEO
(Article has pictures of victims and leading caption, I shot him again IISo.. to get him out of his misery. IT) The publicity about Wuornos was pervasive. As shown by the foregoing, even those readers who just per used the headlines obtained unfairly prejudicial information, such as the fact that Ms. Wuornos was charged with seven murders and had confessed.
The requirement that Wuornos' attorneys explore these matters in the presence of other jurors was unreasonable and an abuse of discretion that constituted a denial of the rights to an impartial jury, due process and effective assistance of counsel guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 16, and 22 of the Florida Constitution. Due to the interference with these rights, the conviction must be reversed and the matter remanded for retrial.
IMPROPER DENIAL OF CHALLENGES FOR CAUSE
A defendant charged witha capital offense is constitutionally ensured the right to a fair trial by impartial jurors. The constitutional standard of fairness requires that a defendant have 'la panel of impartial 'indifferent' jurors." Irvin
V. Dowd, 366 U. S. 717, 722 (1961). In Sinser v. State, 109 So.
2d 7 (Fla. 1959), the Supreme Court of Florida set forth the following rule:
[I]f there is basis for any reasonable doubt a5 to any juror's possessing that State of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial he should be excused on motion of a party, or by the court on its own motion.
Sinser, 109 So.2d at 2324. The foregoing rule has been consistently adhered to by this Court. See Hamilton v. State, 547 So.2d 630 (Fla. 1989)(denial of challenge for cause of juror who had preconceived opinion which would require evidence to dis place was reversible error despite juror's assurance that she (Fla. 1988)(refusal of trial court to grant challenge for cause to juror who gave equivocal answers concerning his ability to accept insanity as defense was reversible error); Hill v. State, 477 So.2d 553 (Fla. 1985)(I1a jury is not impartial when one side must overcome a preconceived opinion in order to pre vail."); See also Auriemme v. State, 501 So.2d 41 (Fla. 5th DCA 2986)(jurors ability to be fair and impartial must be unequivocally asserted in the record).
Here, when a defense challenge for cause as to prospective juror Degayner was denied, a request for additional peremptory challenges was made and that was denied. (R607) Degayner had previously indicated the following:
Defense counsel: How about you? What were you exposed Mr. Degayner: I spend probably, I put about 30 miles or 30,000 miles on my car every year in my profession.
And it's a car radio I hear most of my news on. And I guess probably as the investigation and that of the crime that was carried on, I heard news flashes and things of that, mostly on the car radio.
Defense counsel: Did you form an opinion or an impression of my client based on what you were hearing?
Mr. Degayner: Well, I really don't understand what you are saying.
Defense counsel: Did you come to any conclusion about what kind of person she was or anything like that, based on what you were hearing on the radio?
Mr. Degayner: No. I think I based, I had, I had a real sick feeling for the person, whoever it was that committed the crime.
(R604) It is respectfully submitted that Wuornos was prejudiced by not being able to strike Mr. DeGayner based on his foregoing statements. In that regard, the trial court erred in refusing to strike for cause any and all of the following prospective jurors, all of which were peremptorily excused by Wuornos after a challenge for cause was improperly denied, an erroneous ruling that required defense counsel to expend a precious peremptory challenge that could have been exercised against Mr. DeGayner:
Walters (R239) Ray (R521) Herbert (R359) Pundit (R548-549) Grabowski (R360) Mooney (R567-568) Pittman (R359; 416) Particularly as to jurors Pundit and Mooney, the trial court erred in refusing to grant defense counsel's challenges for cause. The court's recollection as to what Pundit had said was incorrect: Pundit was unsure whether he would be a good juror and believed he would be thinking about his job while evidence was being presented. (R544-547) Mooney had been exposed to the media coverage of Wuornos' cases a hundred times, had discussed the case with his neighbors and friends, received his neighbors' and friends' opinions as to the guilt or innocence of Ms.
Wuornos, and had himself previously expressed an opinion as to Ms. Wuornos' guilt or innocence. (R563-564) When asked if he would be able to put that opinion aside, he stated, I1I would try very hard." (R564;566) Clearly, these two jurors should have been excused for cause.
Although several of the jurors challenged for cause stated that they could set aside their preconceived ideas and be fair and impartial, their inconsistent responses and equivocal assertions establish a reasonable doubt that they could be fair and impartial. Accordingly, the denial of the challenge(s) for cause constituted reversible error due to the violation of the rights to due process and a fair and impartial jury guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 16 and 22 of the Florida Constitution.
A new trial is required because of the deprivation of the foregoing state and federal constitutional rights. The motion for change of venue should have been granted after the vast majority of jurors revealed that they had, in fact, been exposed to the extensive media coverage that contained such unfairly prejudicial information. So, too, the trial court abused its discretion in requiring defense counsel to ask questions concerning the recollection of the jurors as to what had been read or seen in the media in the presence of the entire venire.
Finally, the court erred in failing to grant several valid challenges for cause, forcing defense counsel to expend peremptory challenges. For the foregoing reasons, the conviction should be reversed and the matter remanded for retrial.
POINT V
THE JURY'S PENALTY PHASE VERDICT WAS
UNCONSTITUTIONALLY TAINTED ASA RESULT
OF IMPROPER INSTRUCTIONS, IMPROPER
EVIDENCE, AND IMPROPER ARGUMENT.
A. Improper Jury Instructions The jury's death recommendation was tainted by erroneous, improper, and vague instructions. These errors were numerous and Appellant will address each one separately.
(1) Over objection, the trial court instructed the jury on the pecuniary gain circumstance [S 921.141(5)(f), Fla. Stat.] and the felony-murder factor with robbery as the stated felony [S 921.141(5)(d), Fla. Stat.]. Defense counsel pointed out that the State should either elect or the trial court should instruct on only one. (R3540,3542-43) Alternatively, Appellant requested a limiting instruction. (R3552,4641) The trial court overruled the objections (R3543) and instructed the jury on both circumstances. (R3595-96) Although the trial court recognized that it could not find both factors in sentencing Appellant to death (R4664-65), the jury was never instructed on this pertinent and critical point of law. Undoubtedly, they considered each factor separately and gave each independent weight. This Court has pointed out that, where consideration to two factors result in doubling, the jury must be instructed that it should consider the two factors as one. Castro. state, 597 So. 2d 259 (Fla.
(1992). The trial court clearly erred and the jury's resulting recommendation was tainted. Amend. VIII and XIV, U. S. Const.;
Art. I, SS 9, 16 and 17, Fla. Const.
(2) Defense counsel objected on vagueness grounds to several of the jury instructions concerning the aggravating circumstances. It was counsel's contention that the instructions failed to adequately channel the jury)s discretion.
Specifically, Appellant objected to the "heightened premeditation*#instruction and filed a written request fora special jury instruction, (R3.545-46, 4633-34) The trial court denied the request and told the jury simply:
The crime for which the Defendant is to be sentenced was committed ina cold, calculated and premeditated manner without any pretense of moral or legal justification.
(R3596) Defense counsel also filed a written request fora special jury instruction defining the final phrase of the above.
(R4632) The trial court denied both of Appellant's requests for special instructions that would have clarified this vague, ambiguous, aggravating factor. (R3552,4632-34) This was clearly error. Espinosa v. Florida, 505U. S. (1992). Espinosa is not limited to the llheinousnesslt aggravating factor. See, e. q., Hodses v. Florida, 61 USW 3254 (1992). The prosecutor com pounded the problem by improperly and inaccurately informing the jury that this circumstance applies to premeditated murders (of which the jury found Appellant guilty). (R3140- 41,3568,3604, 3609) Additionally, the evidence does not support an instruction on this factor. See Point VI, C, infra. Sochor
(3) Defense counsel also objected on similar grounds to the instruction that the murder was committed while "engaged in the commission of the crime of robbery.11 [S 921.141(5)(d), Fla.
Stat.] As Appellant argues in the portion of the brief attacking the trial court's finding of this particular factor (See Point VI, A), the evidence does not support this circumstance. The taking of Mallory's property occurred after his death and was merely an after thought. The jury instruction to the contrary failed to channel their discretion in that it completely failed to define what this circumstance required. Additionally, the evidence does not support the instruction. Espinosa v. Florida, supra; Sochor v. Florida, 504U.S. (1992). If the trial court misunderstood this factor, surely the jury did also.
(4) Appellant made similar objections to the instruction on the 'avoiding arrest/witness elimination11aggravating circumstance. (R3541-42) The trial court overruled the objection and instructed the jury simply, "[the murder]...was committed for the purpose of avoiding or preventing a lawful arrest or effecting the escape from custody.Il (R3596) Such vague language, without more, fails to constitutionally channel the jury's discretion. Additionally, the evidence does not support an instruction on this factor. Sochor v. Florida, suDra.
(5) Appellant also objected to the "heinousnessttfactor [S 921.141(5)(h), Fla. Stat.] on similar grounds. (R3544) Although the jury was instructed using the ttnewtt standard as to this factor, Appellant maintains that the instruction still fails to pass constitutional muster. The last sentence, @'The kind of crime intended to be included as heinous, atrocious or cruel is one accompanied by additional acts that show that the crime was conscienceless or pitiless and was unnecessarily torturous to the victim, ottis more readily susceptible to an interpretation that the court is giving an example of a crime. If this sentence is construed by the jury as an I1examplett rather than a tllimitation, the instruction fails to constitutionally channel the jury's discretion. Also, the evidence does not support the giving of this instruction. Sochor v. Florida, supra.
B. Lack of Remorse At several points during the penalty phase, the State offered evidence indicating that the Appellant had no remorse.
This Court has repeatedly pointed out that lack of remorse should have no place in the consideration of any aggravating factors.
See, e. q., Pope v. State, 441 So. 2d 1073 (Fla. 1983). The jury's consideration of Appellant's lack of remorse is particularly inappropriate, since Appellant's entire case was based on a theory of self-defense.
Over objection, the State presented the testimony of Susan Hansen, a corrections officer at the Volusia County Branch Jail.
Hansen was assigned to watch Appellant while she was medi cally segregated. (R3155-56) Hansen described Wuornos' demeanor during a conversation. "She was very animated, very laughing, joking, talking the whole time, she was completely animated the whole time [as she discussed the murder].tt (R3157) Appellant's objections (relevance; non statutory aggravating factor) were overruled when the prosecutor assured the court that they would "tie it up later." (R3157) Officer Hansen also testified over objection that Appellant told her how I1itmade her feel to kill" Mallory.
She stated that after she killed, she sometimes got upset because she killed so many guys that she, like, I feel guilty, you know, other times I'm happy, I feel good like a hero or something because I've done some good.
(R3167) The improper evidence concerning Appellant's lack of remorse was not limited to the testimony of Officer Hansen. During the cross-examination of Dr. Krop, a defense psychologist, the prosecutor questioned whether or not Appellant had a conscience.
Q: Did you see evidence of a conscious (sic) in her from your examination?
A: Yes.
Q: Are you -- surely you are aware...that she said it was all right to kill these men because they were all up in years and didn't have parents at home.
Didn't she say that?
(Defense Counsel): Objection, Your Honor. Beyond the scope.
(Defense Counsel): And beyond the scope of the hearing, eighth amendment.
THE COURT: Objection overruled.
Q: She said that. Didn't she?
A: With regard to the incident itself, she has not expressed guilt or a conscious (sic).
Q: Just no guilt or conscious (sic) for killing Mr. Mallory. Is that what you were saying?
(Defense Counsel): Objection, Your Honor.
THE COURT: Overruled.
Q: Is that what you were saying?
A: She felt it was self defense.
Q: And, in fact, I'm sure you are aware she indicated to one of the other persons that she talked to, which I'm sure you have the report, that these men deserved to die because they were cheating on their families. Didn't she say that?
A: She indicated that yes.
Q: Not much conscious (sic) there. Is there?
(R3379-81) The trial court finally sustained a defense objection following the last comment by the prosecutor. (R3381) Even then the prosecutor did not give up completely. On recross, the prosecutor elicited (over objection) that people with antisocial personality disorders kill more people than individuals with borderline personality disorders. (R3399)25 2s This information was critical because the States sole expert disagreed with the three defense experts, concluding that Appellant's major problem was that she suffered from an antisocial personality disorder, i.e., lacked a conscience.
The prosecutor zapped it all off by arguing Appellant's lack of remorse during final sum mation.
He [Dr. Krop] went to say that he would not find her antisocial perhaps because she displayed a conscience and then I cross-examined him on that issue.
(R3573) Presenting evidence of a defendant's lack of remorse is one thing, arguing it to the jury is quite another. See, e. s., Whike v. State, 596 So. 2d 1020 (Fla. 1992).
C. Collateral Murders Appellant waived any reliance on the statutory mitigating circumstance that she had no significant prior criminal history [§921.141(6)(a), Fla. Stat.], (R3547) Nevertheless the evidence in the penalty phase is sprinkled with references to the other murders. The most blatant incident occurred during the prosecutors cross-examination of Dr. Toomer. Under the guise of testing the "credibility of the witness," the prosecutor repeated irrelevant, inflammatory details of Mr. Carskaddon's murder.
PROSECUTOR: With regard to the shooting of Mr.
Carskaddon for example -- DEFENSE COUNSEL: Objection, Your Honor. Beyond the scope of the physical (sic) hearing, Your Honor.
PROSECUTOR: This goes to the credibility of the witness.
DEFENSE COUNSEL: Not relevant, Your Honor.
THE COURT: Objection overruled. Go ahead.
victims, Mr. Carskaddon, the first story she told was that she shot him in the back seat of the car. After she shot him several times, she got out and learned for the first time, didn't know it before, that he had a pistol because it was laying on the hood, and then she got mad and reloaded the gun and went in and shot him some more.
that, she grabbed the gun and she shot him over and over again because he was afraid he was going to get her. And she killed him. And she was so mad, she shot him some more. And then the next time she talked to thought she was going to be murdered. And then he got in the backseat and put the gun down and she managed to get her gun and shoot him to death.
(R3449-51) Appellant objected to the form of the question and moved for mistrial, which the court denied. (R3451) Further questioning by the prosecutor prompted Appellant to object, pointing out that the Carskaddon case was not at issue at the hearing. The trial court overruled the objection. (R3451) The objection able evidence relating to Carskaddonls murder was improperly admitted. The evidence constituted non statutory aggravation and should have been excluded. See, e, q,, Provence
v. State, 337 So. 2d 783 (Fla. 1976). This is especially true in light of Appellant's waiver of the statutory mitigating circumstance dealing with no significant prior criminal history.
Although the jury heard evidence of the other murders at the guilt phase, llSubstantiallydifferent issues arise during the penalty phase of a capital trial that require analysis qualitatively different than that applicable to the guilt phase.
Castro v. State, 547 So. 2d 111, 115 (Fla. 1989). The irrelevant, prejudicial evidence tended to negate the case for mitigation presented by Wuornos and improperly influenced the jury in its penalty-phase deliberations.
D. Diminishment of the Jury's Responsibility Appellant repeatedly tried to preclude any instructions, comments, or argument that tended to diminish the jury's sense of responsibility in violation of Caldwell v. Mississippi, 472 U. S.
320 (1985). (R3538-39,3546,3551,4176-79) Nevertheless, the trial court refused to modify the standard jury instructions.
The trial court did inform the jury that their recommendation would be given "great weight.I1 Nevertheless, the standard jury instructions are replete with references to tlrecommendationll, Iladvisory verdict", and constant reminder that the final decision rests with the judge. (R3135,3594-99) Additionally, the prosecutor reminded the jury, at least twice in sum mation, that their verdict was purely advisory (R3564), and ' I.... only the Judge imposes the sentence. Juries do not.## (R3565) Appellant submits that the combined effect of the instructions and argument resulted in the diminishment of the jury's perception of the importance of their role at the penalty phase. Caldwell; Amend.
VIII and XIV, U. S. Const.; Art. I, SS 9, 16, 17, and 22, Fla.
Const.
E. Prosecutorial Misconduct In addition to diminishing the jury's role at the penalty phase (R3564-65), the prosecutor improperly argued the presence of pecuniary gain Ifduring the commission of a robbery.''
(R3567) See Sections A (l) and (3), supra. Also as previously argued, the prosecutor misstated the standard of proof required for the "heightened premeditation11factor. (R3140-41,3568,3604, 3609) The prosecutor also inappropriately argued Appellant's lack of remorse. (R3573); see Section B, supra.
Additionally, the prosecutor improperly diminished the importance of non statutory mitigating circumstances. Hitchcock
v. Duwer, 481 U. S. 393 (1987). The prosecutor called them:
ground but it just covers virtually everything else.
It's, in many instances, a plea for sympathy based upon a different packaging.
(R3569) The prosecutors argument was clearly improper. He went on to state that, "Mental impairment is the defense of last resort [by defense attorney^].^^ (R3569) Such a comment on lldefense tactics1@is highly improper and unethical. See, e.q., Wilson v. State, 371 So. 2d 126 (Fla. 1st DCA 1978). Defense counsel objected on these specific grounds. (R3604) The prosecutor similarly dealt with another "defense tactic11when he referred to a psychologists testimony concerning familiar sexual abuse as!!dirty little innuendo1' (R3572), and an Itattemptto swear Someone else to get sympathy.I1 (R3573) This argument was also an improper comment on defense tactics and Appellant specifically objected and moved fora mistrial. (R3606-09) The prosecutor inappropriately limited the jury's consideration of mitigation when he told them, IlMercy is simply another word for sympathy. And that's not what this verdict is to be based on.@# (R3576) Hitchcock; but see, Douqan v. State, 595 So. 2d 1 (Fla. 1992). Defense counsel again objected and moved fora mistrial. (R3606,3609) Finally, the prosecutor totally skewed the jury's consideration of the mitigating evidence of Appellant's mental illness. The prosecutor equated the mental mitigating ' Ci~CUmStanCeSwith insanity. Although the defense never even implied that Appellant was insane, the prosecutor argued:
was doing. Whether she knew what she was doing.
Whether she knew what she was doing was wrong.... she also went on to say that whether Aileen Wuornos knew right or wrong at the time she killed this man was about mental illness because every single mental health care expert that testified...they all agreed that she's responsible in every sense of the word legally.
(R3569,3571-72,3576-77) Defense counsel again objected and moved law, i.e., confusing mental mitigation with insanity.
(R3605,3609) The cumulative affect of the prosecutors improper arguments certainly justified a new penalty phase.
jury instructions, Appellant requested additional special adequately covered by the standards. The need for adequate been emphasized time and time again. See, e. q., Espinosa v.
Florida, supra; Greqq v. Georgia, 428 U. S. 153 I 192-93 (1976).
Special instructions # 8 and #Is 10-12 would have been particularly helpful and pertinent. (R4640,4643-45) All of the specially requested instructions were improvement on the the requests violated Appellant's constitutional right to a fair trial. Amend. V, VI, VIII and XIV, U. S. Const.; Art. I, ss 9, 16, 17, and 2 2, Fla. Const.
POINT VI
THE TRIAL COURT ERRED IN IMPOSING A
DEATH SENTENCE WHICH IS NOT JUSTIFIED IN
THAT IT IS BASED ON INAPPROPRIATE
AGGRAVATING CIRCUMSTANCES, ADDITIONAL
MITIGATING CIRCUMSTANCES SHOULD HAVE
BEEN FOUND, AND THE MITIGATING
CIRCUMSTANCES OUTWEIGH THE AGGRAVATING
CIRCUMSTANCES.
Following deliberations, the jury returned an advisory recommendation (12-0) that the trial court sentence Aileen Wuornos to death. (R4647) In following the jury's recommendation, the trial court found five aggravating circumstances: (1) Appellant had a prior conviction of robbery witha deadly weapon in 1982 [§921.141(5)(b), Fla. Stat.]; (2) the crime was committed during the course of a robbery [§921.141(5)(d), Fla. Stat.]; (3) witness elimination [§921.141(5)(e), Fla. Stat.]; (4) the crime was especially heinous, atrocious or cruel [§921.141(5)(h), Fla. Stat.]; and (5) heightened premeditation [5921.141(5)(i), Fla. Stat.]. The trial court rejected all of the applicable statutory mitigating circumstances, but did find that Aileen Wuornos suffered from a borderline personality disorder. (R4663-69)
A. The Trial Court Erred in Finding that the Crime was Committed During the Commission of a Robbery.
In finding this aggravating circumstance, the trial court wrote:
It was proved beyond a reasonable doubt that the Defendant, AILEEN CAROL WUORNOS, was engaged in the commission of a Robbery at the time of the murder and the Jury returned a verdict of Guilty to Armed Robbery witha Firearm of Richard Mallory. The evidence shows that the Defendant, AILEEN CAROL WUORNOS, enticed Richard Mallory to an isolated area and took from him Mooney and other property, to-wit: radar detector, two cameras, luggage, black attach case, an automobile;
the property was taken against the will of Richard Mallory and was done with force, violence, assault or putting the victim in fear. After the unlawful taking the victim was permanently deprived of his property as the Defendant, AILEEN CAROL WUORNOS, pawned one of the cameras and the radar detector on December 6, 1989, five (5) days after the homicide. The evidence shows that the Defendant, AILEEN CAROL WUORNOS, shot Richard Mallory to death in the course of committing said Robbery. By the yawning of these items, the fact is proved that the offense was committed for pecuniary gain. The case law, as understood by this Court, is that this aggravating factor, F.S. 921.141(5)(f), while established, is emerged with the factors set out in this paragraph. Thus, the aggravating circumstance that the Defendant committed the capital felony while she was engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit a Robbery, F. S. 921.141(5)(d), has been established beyond a reasonable doubt and has been emerged with the aggravating circumstance that the capital felony was committed for pecuniary gain.
(R4664-65)
The pecuniary gain aggravating factor and, when the felony is robbery, the felony-murder circumstance, are limited to situations where the primary motive for the killing is monetary gain. See Simmons v. State, 419 So. 2d 316, 318 (Fla. 1982);
State. Dixon, 283 So. 2d 1, 9 (Fla. 1973). This Court has approved the finding of pecuniary gain only in cases where an actual robbery was occurring or at least being attempted, or in which the defendant receives something of value during the crime.
See e. q., Bolender v. State, 422 So. 2d 833 (Fla. 1982) [murder during robbery and torture of cocaine dealers]; Ross. State, 386 So. 2d 1191 (Fla. 1990) [killed burglary victim and ransacked * house for valuables]; Antone v. State, 482 So. 2d 1205 (Fla.
1980) [contract killing]; Harqrave v. State, 366 So. 2d 1 (Fla.
(1979) [robbery of a convenience store].
The evidence does not establish beyond a reasonable doubt that Aileen Wuornos killed Richard Mallory in an attempt to obtain property from him. The evidence is just as consistent that Appellant's gathering of Mallory's valuables was merely an after thought to the murder. In Youns v. Zant, 506 F. Supp. 274, 280-81 (M.D.Ga. 1980), the court rejected a finding that the murder was committed during the course of a robbery or for pecuniary reasons ina similar situation. There, the court held:
Having carefully considered all the evidence presented at trial, the court finds that the evidence was not legally sufficient to support the jury's finding beyond a reasonable doubt that the murder was committed in the course of an armed robbery or for the purpose of obtaining Mooney. The only relevant evidence presented at trial indicated that petitioner did not contemplate the taking of any Mooney until after the shots had been fired and the blows had been struck, i.e., after the presented at trial, petitioner prior to the commission of the murder had only intent to rob the victim is only speculation. Certainly the evidence does not prove these aggravating factors beyond a reasonable doubt.
The intent to deprive Richard Mallory of his property did not occur until the incident was over. As such, the murder was not committed during the course of a robbery. The taking of Mallory's property was an after thought. If the felony is committed immediately following the murder, this aggravating circumstance is not applicable. Moody v. State, 418 So. 2d 989 (Fla. 1982) [circumstance improperly found where defendant committed an arson of the victim's home after the killing.] At no point during Appellant's numerous statements to the police did she ever admit that she killed Mallory in order to Eacilitate a robbery. In fact, she clearly indicated the contrary. The States own evidence at the penalty phase revealed:
Q: I would like to discuss in particular Miss Wuornos' reasons, if any, that she gave you for killing Richard Mallory.
A: Well, she did discuss that at times she didn't
(R3157-58) Mallory's death arose when the Appellant became convinced that he intended to either rape or rob her. (R1071-78) Appellant contended that she killed Mallory for retaliation and that he deserved it. (R1080) she took "final revenge" by keeping his property. (R1080, loo) Moody v. State, 418 So. 2d 989 (Fla. 1982). The State clearly failed to prove this aggravating circumstance beyond a reasonable doubt.
B. The State Failed to Prove Beyond a Reasonable Doubt that the Murder was Committed for the Purpose of Avoiding or Preventing a Lawful Arrest.
In finding this particular circumstance, the trial court wrote:
It was proved by the evidence of the crime that the crime was committed for the purpose of avoiding or preventing lawful arrest by the Defendant's methodology in the commission of the crime and her actions as follows:
(a) The removal of identification from the victim's body.
(b) The covering up of the body with the rug.
(c) The removal of the license plate from the victim's automobile and by concealing said automobile ina deserted area.
(d) The wiping of all fingerprints from the victim's automobile.
(e) By washing said automobile to destroy any evidence that would link her to the Robbery.
(f) The defendant's own statement that she had to kill victim or he would tell someone if he lived.
(R4665-66) As in the finding of the previous aggravating circumstance, the trial court's logic is fatally flawed. All of Appellant's actions listed above were clearly done to avoid detection for the murder. After the assignation turned ugly, Appellant shot Mallory to death. Appellant then had a dead body on her hands. She did her best to cover her tracks. The accuracy of this analysis is revealed if one stops the action at any point prior to the shooting. Under any theory presented by the State, a halt in the action immediately before the shooting beg the critical question: For what crime was Appellant seeking to avoid arrest? Mallory was the one smoking marijuana. Wuornos and Mallory were both engaged in an act of prostitution. It is doubtful that Mallory would have reported their activity to the police. The only serious crimes committed by Appellant were the murder and the theft of Mallory's property after the murder.
(See preceding argument.)
This Court has repeatedly held that the llavoidingarrest" aggravating factor is not applicable unless the evidence proves that the only or dominant motive for the killing was to eliminate a witness. See, e. q., Perry v. State, 522 So. 2d 817, 820 (Fla.
(1988); Floyd v. State, 497 So. 2d 1211, 1214-15 (Fla. (1986);
Riley v. State, 366 So. 2d 19, 21-22 (Fla. 1978). Even if the victim knew and could identify the defendant, that, without more, is insufficient to prove this factor beyond a reasonable doubt.
See, e.a., Perry, 522 So. 2d at 820; Floyd, 497 So. 2d at 1214- 15; Caruthers v. State, 465 So. 2d 496, 499 (Fla. 1985); Rembert
v. State, 445 So. 2d 337, 340 (Fla. 1984). See also Geralds v.
State, 601 So. 2d 1157, 1164 (Fla. 1992).
Mallory had never met the Appellant prior to that fatal night. It was Appellant's habit to use an alias while prostituting. Most importantly, there was no reason to eliminate Mallory asa witness since, prior to the murder, no crime had been committed.
C. The State Failed to Prove Beyond a Reasonable Doubt that the Murder was Cold, Calculated, and Premeditated Without Any Pretense of Moral or Legal Justification.
In finding this particular aggravating circumstance, the trial court wrote:
The evidence before the Jury shows the Defendant's heightened form of premeditation by the manner in which Richard Mallory was selected by the Defendant according to her plan by hitchhiking on an interstate highway and being given a ride by an unsuspecting victim. By the manner she shot the victim from the side by surprise and then went around the vehicle and pulled him out of the car and shot him again to insure the success of her plan. All accomplished by hiding her firearm in her bag until getting the victim in an isolated area and then shooting the victim three (3) times from the side while the Defendant was seated in the front passenger seat and the victim was seated in the front driver's seat facing forward as evidenced by the location and trajectory of the bullets. A cold, calculated, and premeditated manner runs throughout the circumstances of this case, as the Defendant hunted her unsuspecting victim on the highways of this state to take his property and kill him to satisfy her own needs. The Defendant raises the issue of being attacked and/or believing she was being attacked and that she, therefore, killed Richard Mallory in self-defense or with some sense of moral or legal justification. The Jury did not accept the Defendant's testimony and the Court cannot accept the testimony due to the many
(R4667-68) If the record on appeal supported the evidence relied upon by the trial court, perhaps this aggravating circumstance could be upheld. The trial court's conclusions are simply unsupported by the record.
The trial court repeatedly refers to Appellant's llplan, ll insure the success of her e.g., llaccordingto her planll...llto plan.I1 (R4667) The trial court makes reference to Itthemanner in which Richard Mallory was selectedll...llthe Defendant hunted her unsuspecting victim...to take his property and kill him to satisfy her own needs.11 (R4667-68) There is absolutely no evidence that the Appellant had any preconceived plan to hunt down and kill Richard Mallory or anyone else. Appellant's statements to police provide the only details as to what actually happened that night. At worst, Appellant's statements establish an tlimperfectll self-defense. A defendant's version of what occurred must be accepted as true unless contradicted by other proof showing that version to be false.
See, e.q,, Jaramillo v. State, 417 So. 2d 257 (Fla. 1982).
Since Mallory was the first of Appellant's victims, the State cannot even rely on the other murders to establish a preconceived, lowell-thought-outll plan. Tyria Moore could not aid the State in proving this circumstance. She provided no evidence that Wuornos planned the killing in advance. Contrary to the trial court's assertion regarding the bullets' trajectory and location, the State could not prove the relative positions of Mallory and Wuornos. (R873-74,921-28) Although the jury rejected Appellant's case of self-defense, the evidence clearly fails to support any preconceived plan to kill Mallory. Rather, the evidence tends to support the opposite. Mallory's murder was a spontaneous act. Whatever provoked Aileen Wuornos that night, (a rape, a robbery, Mallory's refusal to dis robe, his refusal to pay) legitimate or not, real or imagined; the decision to kill was spontaneous. The State cannot prove otherwise.
Even if the evidence did support Ilheightened premeditation, Il the evidence also establishes at least a subject ive justification for killing Mallory. This aggravating circumstance is not established, if the defense establishes even a pretense of legal or moral justification. 5 921.141(5)(i), Fla. Stat. Appellant's confession certainly contains at least a pretense of moral or legal justification. Her statements and her testimony reveal that she acted in self-defense, whether actually justified or not.
The expert testimony also supports a finding of at least a pretense of justification. All the expert witnesses agreed that Wuornos suffered from a borderline personality disorder. Asa result of her early abandonment, Wuornos perceived that she was a victim. (R3193-94) When she was in the woods with Mallory, she believed that her life was threatened and she reacted. (R3219) Her action was consistent with the impulsive ness which characterized her illness. (R3221,3321,3343-45) The evidence is certainly consistent with the reasonable hypothesis that Appellant killed Mallory spontaneously. See Geralds v. State,
D. The Trial Court Erred in Finding the Murder Especially Heinous, Atrocious, or Cruel.
In finding this particular aggravating circumstance, the trial court wrote:
The evidence before the Jury shows that Richard Mallory after being shot three (3) times while seated behind the steering wheel of his automobile was either dragged from the car by the Defendant based on the physical evidence or crawled out. He was alive at that time and was then once again shot by the Defendant directly into his chest, The Medical Examiner, Dr.
Botting, testified that Richard Mallory survived at least ten (10) minutes and up to possibly twenty (20) minutes, desperately gasping for breath. The Defendant described drinking a beer while sitting on the hood of the victim's vehicle as he lay on the ground dying.
Then the Defendant drug (sic) him into the woods and rifled his pockets for Mooney and car keys as the victim Richard Mallory desperately gassed for breath. Officer Hansen testified that the Defendant on January 18, 1991, told her that after shooting Richard Mallory, he cried out, III'm dying1, to which the Defendant replied, "That's right mother fucker" and shot him again. The victim's knowledge of his impending doom for at least ten (10) minutes, gasping for breath, begging for his life, and the unmerciful manner of taunting, dragging the victim into the woods, going through his pockets and then covering him up to die clearly established that this murder was unnecessarily torturous, cruel, atrocious and heinous to the victim, Richard Mallory.
The Defendant's actions evinced an enjoyment and indifference to the suffering of Richard Mallory, while
(R4666-67)
In Lewis v. State, 398 So. 2d 432, 438 (Fla. 1981), this Court announced the principle that murder by shooting, when it is ordinary in the sense that it is not set apart from the norm of premeditated murders, is asa matter of law not heinous, atrocious, or cruel." In the realm of first-degree murders, Mallory's shooting was ordinary.
This particular aggravating circumstance also focused an the intent of the defendant. In Porter v. State, 564 So. 2d 1060 (Fla. 1990), the crime was not meant to be deliberately and extraordinarily painful, even though it probably was. It is abundantly clear that Appellant did her best to prevent Mallory from suffering. Appellant told a guard at the jail that Mallory fell down and said, llI'm going to die...I'm dying." (R3159) Appellant stated that she then quickly shot him again two more times. (R3159) It is clear from all of the evidence that Appellant attempted to end Mallory's life as quickly as possible.
Additionally, once again the trial court's findings are not supported by the record. The court writes that Appellant dragged Mallory into the woods and covered Ithim up to die. " (R4666-67) It is just as reasonable a hypothesis that Appellant dragged the body into the woods to cover it and rifled his pockets after Mallory was dead. Acts done after the killing cannot render the murder especially heinous, atrocious or cruel. Scott v. State, 494 So. 2d 1134 (Fla. 1986); Halliwell v. State, 323 So. 2d 557 (Fla. 1975).
This Court has refused to uphold this aggravating circumstance in other, factually similar cases. Hallman v.
State, 560 So. 2d 223 (Fla. 1990) [guard killed with single shot to the chest with death probably occurring within a matter of a few minutes]; Williams v. State, 574 SO. 2d 136 (Fla. 1991) a [defendant restrained bank guard, then shot her with little delay]; Amoros v. State, 531 So. 2d 1256 (Fla. 1988) [murderer fired three shots into the victim at close range]; and Teffeteller v. State, 439 So. 2d 840 (Fla. 1983) [victim suffered shotgun blast to the abdomen, lived for several hours in undoubted pain, and knew he was facing death]. This is not a case where the victim was abducted and kidnapped prior to the murder. Mallory was with Wuornos for several hours of his own free will.
Other factors militate against the finding of this aggravating circumstance. The medical examiner conceded that, at the time of the shooting, Mallory was legally intoxicated or very close to it. (R875) This Court has recognized the intoxication of the victim asa consideration in rejecting this particular circumstance. See, e.q., Herzoq v. State, 439 So. 2d 1372 (Fla.
(1983) Additionally, the medical examiner could not rule out the reasonable hypothesis that Mallory suffered a head injury during the melee. (R875) If so, Mallory may have been unconscious during a substantial portion of the attack, brief though it was.
If so, he would not have been conscious of his suffering. Scott
v. State, 494 So. 2d 1134 (Fla. 1986).
In its consideration of this circumstance, the trial court also neglected to consider the unrefuted evidence that Wuornos suffered from a borderline personality disorder. A defendant's mental defect are an important factor in evaluating the heinous ness of a crime. See, e.q., Huckabv v. State, 343 So. 2d 29, 34 (Fla. 1979). The testimony of the mental health professionals indicate that the murder was committed in an emotional ragell and was thus not heinous, atrocious, or cruel.
Buford v. State, 403 So. 2d 943 (Fla. 1981). See also, Halliwell
v. State, 323 So. 2d 557 (Fla. 1975). The State failed to prove the existence of this circumstance beyond a reasonable doubt.
E. The Trial Court's Rejection of the Uncontroverted, Mitiqatinq Evidence was Unjustified.
In dealing with the plethora of mitigating evidence, the trial court wrote simply:
The Jury of seven (7) women and five (5) men, totally rejected the mitigating circumstances by their vote of twelve (12) to zero (0). The Court cannot accept and therefore, rejects the statutory mitigating circumstance set out in the testimony. The Court finds from the testimony that the Defendant does have a borderline personality disorder but, further from the evidence, this disorder does not rise to an extreme mental or emotional disturbance. The court accepts same asa non-statutory mitigating factor.
(R4669) The trial court clearly gave the jury's verdict undue emphasis. Despite the verdict, it was still the trial court's duty to independently weigh the mitigating evidence. Rogers v.
State, 511 So. 2d 526, 534 (Fla. 1987). Without elaborating greatly, Appellant points out that even Dr. Bernard, who testified for the State, found evidence of: (1) mental or emotional disturbance; (2) impaired capacity to conform her conduct to the requirements of law; (3) cerebral dysfunction; (4) borderline personality disorder; (5) dysfunctional family; (6) history of alcohol abuse; (7) inability to cope; (8) lack of judgment; (9) lack of insight; (10) emotional ability; (11) impulsive ness; and (12) genetic and/or environmental deficit.
(R3510-12) Of course, the three psychologists who testified for the defense went even further. Drs. McMahon, Krop, and Toomer all agreed that, at the time of the murder, Appellant was suffering from an extreme mental or emotional disturbance and that Appellant's capacity to appreciate the nature and quality of her conduct was substantially impaired; in other words, all three doctors found both statutory mitigating circumstances. (R3217- 22,3403-4,3425-27) The overwhelming weight of the evidence supports the conclusion that both statutory mental mitigating circumstances were present. Additionally, numerous non statutory mitigating factors were uncontroverted and should have been found.
Conclusion Only one valid aggravating circumstance exists. Appellant's lone, prior violent felony conviction is not particularly compelling. This is especially true if the facts surrounding the conviction are examined. The trial court recognized one mitigating circumstance but improperly rejected numerous other valid mitigating factors. The trial court placed undue weight on the jury's recommendation. (R4669) A proper weighing of the lone aggravating factor against the plethora of mitigation should result ina life sentence. A proportionality analysis by this Court should result ina life sentence. This is not one of the most aggravated, least mitigate first-degree murders.
POINT VII
THE TRIAL COURT ERRED IN DENYING
APPELLANT'S MOTION FOR JUDGMENT OF
ACQUITTAL.
At the conclusion of the evidence, Appellant moved for judgment of acquittal contending, inter alia, that the evidence was insufficient to establish premeditation. Appellant also questioned the sufficiency of the evidence to establish robbery.
The trial court denied the motion. (R1903-7,2108) Aileen Wuornos is the only living witness who knows what happened that night. Her testimony at trial established a classic case of self-defense. Her statement to law enforcement did not substantially refute her testimony at trial. A defendant's version of what occurred must be accepted as true unless contradicted by other proof showing the defendant's version to be false. Jaramillo v. State, 417 So. 2d 257 (Fla. 1982).
Appellant's robbery conviction and sentence must also be vacated. The States evidence reveals that Appellant's theft of Mallory's property was merely an after thought. One cannot rob a dead man. See, Jones v. State, 569 So. 2d 1234 (Fla. 1990) and Tavlor v. State, 138 Fla. 762, 190 So. 262 (1939).
POINT VII
THE FLORIDA CAPITAL SENTENCING STATUTE
IS UNCONSTITUTIONAL ON ITS FACE AND AS
APPLIED.
Appellant filed several constitutional attacks on Florida's death sentencing scheme that are not argued elsewhere in this brief. The statute eliminates judicial discretion and, in so doing, violates the constitutional prohibit ion regarding separation of powers. The law allows unbridled prosecutorial discretion. The aggravating circumstances are unconstitutionally vague and overbroad. The statute inhibits the consideration of non statutory mitigation. The death penalty is not the least restrictive means available to further a compelling state interest. Ore v. Wade, 410 U. S. 113 (1973). Additionally, the process allows for arbitrary and capricious imposition of death sentences resulting in freakish application. (R4200-6,4207-
CONCLUSION
Based upon the foregoing cases, authorities, policies, and argument, Appellant requests the following relief:
As to Points I through IV, a new trial;
As to Point VII, reverse and remand for discharge;
As to Points V, VI, and VIII, vacated the death sentence and remand for imposition of a life sentence.
Respectfully submitted,
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL CIRCUIT
CHRISTOP R S. QUARLES
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 0294632
112 Orange Avenue, suite A Daytona Beach, FL 32114
(904) 252-3367
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been hand delivered to the Honorable Robert A.
Butterworth, Attorney General, 210 N. Palmetto Avenue, Suite 447, Daytona Beach, Florida 32114 in his basket at the Fifth District Court of Appeal and mailed to Ms. Aileen Carol Wuornos, #150924, P.O. Box 8540, Pembroke Pines, FL 33024, this 26th day of January, I992
ASSISTANT PUBLIC DEFENDER
IN THE SUPREME COURT OF FLORIDA
Appellant,)
STATE OF FLORIDA,
APPENDIX
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL CIRCUIT
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 0294632
CHIEF, CAPITAL APPEALS
LARRY B. HENDERSON
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 0353973
112 Orange Avenue, Suite A Daytona Beach, Florida 32114
(904) 252-3367
ATTORNEYS FOR APPELLANT
FILED StD J. WHITE
IN THE SUPREME COURT OF FLORIDA MAY 5 1993
AILEEN CAROL WUORNOS,
Appellant,
V. CASE NO. 79,484
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
IN AND FOR VOLUSIA COUNTY, FLORIDA
ANSWER BRIEF OF APPELLEE
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
MARGENE A. ROPER
ASSISTANT ATTORNEY GENERAL
FL. BAR. #302015 210 N. Palmetto Avenue Suite 447 Daytona Beach, Florida 32114
(904) 238-4990
COUNSEL FOR APPELLEE
TABLE OF CONTENTS
PAGES:
I APPELLANT WAS NOT DENIED A FAIR
TRIAfi AND THE TRIAL COURT CONDUCTED
I1 APPELLANT WAS NOT DENIED A FAIR
TRIAL BY THE INTRODUCTION OF
EVIDENCE OF COLLATERAL CRIMES,
WHICH EVIDENCE DID NOT BECOME A
I11 THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT ' S MOTION TO
IV THE TRIAL COURT DID NOT
IMPROPERLY RESTRICT VOIR DIRE OF
PROSPECTIVE JURORS AND DID NOT
VIOLATE STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND TO AN IMPARTIAL JURY BY
IMPROPERLY DENYING CHALLENGES FOR
CAUSE, BY DENYING THE REQUEST FOR
SEQUESTERED VOIR DIRE, AND BY
DENYING A REQUEST FOR CHANGE OF
V THE JURY'S PENALTY PHASE VERDICT
WAS NOT UNCONSTITUTIONALLY TAINTED
AS A RESULT OF IMPROPER
INSTRUCTIONS, EVIDENCE. AND
VI THE TRIAL COURT PROPERLY
IMPOSED A SENTENCE OF DEATH BASED
ON APPROPRIATE AGGRAVATING
VII THE TRIAL COURT PROPERLY
DENIED APPELLANT s ' MOTION FOR
VIII THE CLAIM THAT THE FLORIDA
CAPITAL SENTENCING STATUTE IS
UNCONSTITUTIONAL ON ITS FACE AND AS
TABLE OF AUTHORITIES
@ CASES: PAGE:
Booth u. Maryland, Brown u. State, Bruno u. State, Buenoano u. State, Castro u. State, Clark u. State, Cochran u. State, Coleninn u. State, Colorado u. Connelly, Correll u. State, Cotita. u. State, Crespo u. State, Drake u. State, Dupree v. State, Durocher u. State, a Espinosa u. Florida, @ Espinosa u. State, Stano u. State, Floyd u. State, Garcia u. State, Gaspard v. State, Gore v. State, Hall u. State, Hall v. State, Halliwell u. State, Hamblen u. Dugger, Hansbrough. v. State, Harich v. Dugger, Haynes u. Washington, Heiizey u. State, Hitchcock v. State, Hodge u. State, Hodges u. Stcrte, Holton u. State, Jmesu. State, Justus u. State, Kight u. State, Knight u. State, Larry u. State, Lucas u. State, Maharaj u. State, Matheson u. State, McClendori u. State, McKinney u. State, McNeil u. Wisconsin, Medina. u. State, Mincey u. Arizona, Miranda u. Arizona, Murphy u. Florida, Owen u. State, @ Payne u. Tennessee, Perry v. State, Ponticelli u. State, Porter u. State, Preston u. State, Preston u. State, Preston v. State, Proffitt u. Florida, Provence u. State, Randolph u. State, Richardson u. State, Rogers u. State, Rogers u. State, Rolle u. State, Shere u. State, Sias u. State, Sireci u. State, Smalley u. State, Smith u. Dugger, Smith v. State, Sochor u. Florida, Spinkellink u. State, State. DiGuilia, State. Dixon, State. Gillespie, State. Halt, State (I). Smith, Stewart u. State, Stokes u. State, Suarez u. State, Swafford u. State, Tedder u. State, Teffeteller u. State, Th.mas u. State, Thompson u. State, Townsend u. Sin, United States u. Carter, Walker v. State, Wike u. State, Williams u. State, Williamson u. State, Wilson v. State, Witt u. State, Yesbick u. State, OTHER AUTHORITIES:
STATEMENT OF THE CASE AND FACTS
The state accepts appellant's factual rectal asa general statement of the case and facts which will be supplemented herein, where appropriate, with additional facts and argument and subject to the following disputed facts.
The wire coat hanger that was found among the items strewn about the area of the car (R 723-27, 736-40) was never shown to have any relevance to this case. There was a trail from the rear of the car to the dunes (R 708; States Exhibit 5). Items were found thirty yards behind the vehicle buried ina small hole and covered witha piece of cloth with sand over it (R 708). Among the items concealed was two clear plastic drinking tumblers, brown bag, half bottle of Smirnoff vodka, a wallet with driver's 0 licenses and credit cars in the name of Richard Mallory, miscellaneous papers and Mallory's red car caddie (R 708).
The bullets that were recovered were of the same caliber and model and make and manufacturer as the bullets that were found in Wuornos' discarded.22 in Rose Bay (R 847; 907). While the medical examiner could not determine the assailants position when the shots were fired, or the sequence of shots, that is not to say that the jury could not make such determination based on Wuornos' confession, trial testimony and forensic evidence concerning the number and type of bullet holes found in Mallory's shirt (R921 - 932). Dr. Botting testified that it was debatable whether Richard Mallory would have been under the influence of alcohol at the time of his death. He could have been at the lower limits where influence would be recognized (R 876).
Tyria Moore worked quite abit. She did hotel work and 0 went to work on a daily basis when she could find employment and used her pay checks to support herself and Wuornos (R 936).
Wuornos never told Moore that she had been beaten or raped during the time from when they met to Mallory's death (R 954).
Appellee takes issue with the statement that in trying to get Wuornos to confess "Moore exploited their prior relationship and the tremendous love Wuornos still harbored for Moore. '' Such was not decided by Judge Graziano below and is an issue herein and belongs in the argument section. Wuornos was not exhorted to "take the entire blame for the murders" but was asked to absolve an innocent party, Moore from blame, which Wuornos did (R 982-86;
Williams Rule evidence and how it relates to the details of Wuornos' Mallory confession is fully discussed in Point 11.
Contradiction in her trial testimony are also fully discussed.
No purpose would be served by repeating it here.
In the penalty phase defense experts testified that Wuornos knew the difference between right and wrong and the nature and consequences of her actions (R3232 - 3443; 3465). A borderline personality disorder does not make one kill or render the person not legally responsible (R 3235; 3374). Dr. Toomer felt she was capable of conforming her conduct to the requirements of the law
(R 3443).
Testimony concerning Wuornos' background is fully discussed in Point VI.
SUMMARY OF ARGUMENT
0 Point I: There was no discovery violation with regard to tie expected testimony of witness Jacqueline Davis therefore, no Richardson u. State, 246 So. 26 771 (Fla. 1971), inquiry was required. Ms. Davis was made available to defense counsel during the trial and a proffer of her entire testimony was put into the record. Despite the fact that her testimony would have been clearly inadmissible the trial judge permitted defense counsel to call Ms. Davis asa witness. It was the choice of defense counsel not to call her. Alternatively, it can hardly be said that a Richardson inquiry was not had from the extensive argument entertained. The trial court indicated that it did not believe that defense counsel did not have this information.
Nevertheless, the court took remedial action. After the defense chose not to call Ms. Davis asa witness no further request fora Richardson hearing was made to challenge the decision not to use Ms. Davis or the inability to call any other witness, thereby waiving such discovery violation. An adequate Richardson hearing was held as to similar fact witnesses and the trial judge determined that they should not be excluded because the state had provided notice of intent to use similar fact evidence at least five months before trial. Defense counsel actually was provided the reports of these officers even where they did not testify from them and was able to cross examine them extensively.
Counsel was also provided witha synopsis of Wuornos' confession which Detective Horzepa had referred to while testifying and counsel was able to challenge and cross examine Detective Horzepa at great lengths.
Point I1: Wuornos was not denied a fair trial by the introduction of evidence of collateral crimes. Evidence of such crimes was before the jury by the cross examining of defense counsel and by Wuornos' own testimony on cross examination. In final argument, defense counsel stated that such evidence was admissible. This issue has been waived. In any event, the evidence was properly admitted to establish a pattern of conduct similar to the pattern of conduct in the crime. Similar incidents took place in the same type of isolated area, involved the same weapon, the same modus operandi, i.e., hitching a ride, solicit ing an act of prostitution, driving to a secluded area, robbing, and ultimately shooting the victim several times in the torso and abandoning their vehicles in another location, the same type of victim, a middle aged man, and the same type of offense.
Such evidence did not become a feature of the trial. Incidents that did not culminate in robberies and murders were relevant to show identity and modus operandi. No victim impact evidence was introduced at trial. The testimony was geared only to establish identity through the circumstances of the crime. If there was error, it was harmless, in view of Wuornos' own confession and the testimony of Tyria Moore and the medical examiner.
Point 111: The trial court did not err in denying Wuornos' motion to suppress. Tyria Moore voluntarily chose to cooperate with law enforcement in their investigation. Her motivation was not only to prove her innocence but to avoid future harm to others. Prior to the taped telephone conversations Moore had made it clear to Wuornos that the relationship was over. Wuornos was in control during the telephone conversations and tried to 0 manipulate Moore into not testifying against her suggesting that it was a case of mistaken identity and that Moore could prove her whereabouts during the murders. She also asked her to forget things she had told her about murdering Richard Mallory.
Wuornos' motivation in confessing was not to protect Tyria Moore.
She had failed to manipulate Moore and chose to voluntarily implicated herself rather than having Moore do so. She also recognized that Moore was an innocent party. Although Wuornos had been arrested for another charge the Sixth Amendment right to counsel cannot be invoked once for all future prosecutions because the right does not attach until a prosecution has commenced. Wuornos was provided counsel and was advised not to speak to the authorities. Her subsequent confession was wholly voluntary. No delusion or confusion was visited upon Wuornos by her interrogators. Any stress was caused by the predicament in which she found herself and was not induced by extraneous pressures. Neither concern fora girlfriend nor the desire to clear an innocent party amounts to sufficient coercion to characterized the confession as involuntary. Nothing in the audio and video tapes in this case reflected that Wuornos' concern for Moore was so overpowering as to deprive her of rational thought.
Point IV: The trial court did not abuse its discretion in dec lining to grant individual and sequestered voir dire as jurors were not tainted by the statements of other jurors and indicated that they could render a fair and impartial verdict putting aside everything they had heard about the case. All the jurors sel ct d indicated hat they could lay aside their impressions or opinion and render a verdict based on the evidence presented in court. No showing was made that Wuornos was prejudiced to the extent that a fair trial was impossible so as to find error in failing to change venue.
Point V: The trial court did not give the pecuniary gain circumstance and the felony murder factor with robbery as the stated felony double consideration or weight in its sentencing order. The prospective Castro u. State, 597 So. 2d 259, 261 (Fla.
(1992), decision was not available at the time the jury was instructed. The jury was not tainted in any event as pecuniary gain is a constituent element of the aggravating factor that the murder occurred during the course of a robbery and separate consideration wouldn't result in double weighing because pecuniary gain provides only a motive far the robbery murder.
The instructions on the cold, calculated and premeditated factor are not unconstitutionally vague. Any error is harmless as the CCP factor was properly found. The prosecutor did not urge the jury to find the cold, calculated and prernedicated factor on the basis that premeditation had already been established by the verdict. The jury was properly instructed on this factor by the judge. The heinous, atrocious and cruel instruction given was approved by the United States Supreme Court in Proffitt u. Florida, 428 U.S. 242 (1976). The prosecutor did not argue lack of remorse. The issue of a lack of conscience was brought up by mental health experts in regard to ruling out a diagnosis of an antisocial personality. The defense failed to contemporaneously object in the penalty phase as to evidence about other crimes.
(I) Both the prosecutor and the sentencing judge properly advised the jury that their recommendation carried great weight. Defense counsel failed to contemporaneously object and request curative instructions regarding statements made by the prosecutor in closing argument and any right to complain thereof is waived.
Knowing right from wrong is clearly relevant to the statutory mental health mitigators.
Point VI: The sentencing court properly found that the crime was committed during the commission of a robbery. Her modus operandi was to pose asa damsel in distress and solicit a ride, then offer to have sex for Mooney, and when in an isolated area for such purpose to rob the victims after first shooting them in facilitation thereof, and then ta finish them off so as to eliminate witnesses. By Wuornos' own words the murder was committed for the purpose of avoiding or preventing a lawful arrest and to continue in her chosen career of prostitution. The murder was cold, calculated and premeditated. The evidence reflects that Wuornos carried a gun for the purpose of robbery.
Even in the event that there had been a struggle with Mallory the evidence reflects that she coolly and deliberately finished him off with heightened premeditation. The murder was especially heinous, atrocious or cruel, Mallory was shot as he attempted to explain to Wuornos he had no intent to rape her, under her version. From that point on the victim felt a great fear of impending death as he tried to escape and more shots were fired.
As he lie dying he was taunted and then shot execution style.
The trial court did not unjustifiably reject mitigating evidence.
The sentencing judge found, in accordance with the testimony of the defense experts, that Wuornos had a borderline personality disorder. It was properly rejected asa statutory mitigating factor because the evidence reflected that the existence of such disorder did not cause Wuornos to rob and murder the victim.
Point VII: The trial court properly denied the motion for judgment of acquittal. Premeditation was conclusively established. The state presented evidence inconsistent with Wuornos' theory that the victim was murdered during an argument.
Such theory is also refused by Wuornos' initial confession. Even accepting Wuornos' story of a struggle, premeditation is still established. After she shot Mallory as he sat behind the @ steering wheel she continued to coolly position herself in order to deliver mortal wounds to the victim forth explicit purpose of eliminating him asa witness. The circumstances of the murder reflect that a robbery of the victim occurred. He was found dead from gunshot wounds, the pockets of his pants were pulled inside out, and his wallet, personal belongings, and automobile had been removed from his person or the immediate area. The evidence reflects that the victim was required to die in order to facilitated the robbery and eliminate a witness. There is no evidence that the robbery was an after thought of the murder.
Point VIII: The claim that the Florida Capital Sentencing Statute is unconstitutional on its face and as applied is waived.
I APPELLANT WAS NOT DENIED A FAIR TRIAL
AND THE TRIAL COURT CONDUCTED AN
ADEQUATE RICHARDSON HEARING.
Prior to jury selection Mr. Nolas indicated to the judge that he had not been before him before and had some questions.
Judge Blount responded that Mr. Nolas had four weeks to ask necessary questions instead of waiting for the jury, nevertheless, he indicated that he would answer them. Judge Blount also noted that he had been appointed on the case three or four weeks ago before but defense counsel had not bothered to call him for hearing time or fora status conference. Defense counsel then recited that on Friday afternoon he had received the statement of Jacqueline Davis from the state. She was Richard Mallory's girlfriend (R 12). The statement was taken on @ September 18, 1989 by Detective Horzepa. Defense counsel did not ask that the statement be excluded but indicated that it was critical to the defense ability to prepare in that Ms. Davis allegedly said in the statement that Mallory had a history of sexual abuse of women and had received experimental treatment.
Mr. Nolas also alleged that Ms. Davis described Mallory's violence toward women when drunk. Mr. Nolas claimed that "We had no idea. We asked about, we telephoned Jacqueline Davis. We tried to track her down. Nobody told us anything. It's been in the States possession for a year. We need to get the psychological history because this guy did ten years for --.It (R 13-14). Mr. Nolas further argued that "This witness is critical to the defense. This guy raped women in the past. He acted with them in the same way as he did with Lee.
The state responded that it had assumed that all discovery had been completed. On Friday it was served witha motion to compel for the first time asking for the statement of Jacqueline Davis. Mr. Damore indicated that on three occasions he verbally invited Ms. Jenkins to his office to review discovery materials.
He also advised her by letter on June 7th. He stated that in response to the letter Ms. Jenkins contacted his office and scheduled a meeting for herself and Investigator Don Sanchez.
Mr. Damore set aside a date to meet with them and go over discovery. On the day that they were supposed to arrive they did not. At 10:30 they were notified by her office that she would have to reschedule. Mr. Damore stated that she never came to his office to go over the discovery materials. In Detective Horzepa's report is a reference that he spoke with Jacqueline Davis. Mr. Damore was not aware that the informal statement had been taken of Ms. Davis until he received the motion to compel from defense counsel (R 16). He then contacted Detective Horzepa and was advised that there was a taped statement which had not been transcribed. He asked him to have it transcribed. He sent the transcript immediately upon being notified that they did not have it. The state argued that none of the information in the transcription would be admissible as it is strictly hearsay. The state disputed Mr. Nolas' recitation of the facts as represented by Ms. Davis. Ms. Davis said that Mr. Mallory was totally non violent in his sexual conduct toward women. She always initiated any sex between them. She knew him fora year and a half. The incident that counsel was referring to occurred when Mallory was eighteen years of age, a juvenile, and charged with some type of burglary offense. There is no record that substantiates that other than a hearsay statement of Ms. Davis since Ms. Davis received that information from Mr. Mallory (R 17). Detective Harzepa's original report was furnished in discovery in January. The defense filed a motion to compel that led to this further discovery. Because they indicated that they did not have Ms. Davis' statement the Assistant State Attorney went back and read the report. There was nothing to indicate that there was a tape recording and the report indicated that he was interviewing Ms. Davis for identification purpo8es, to see if she knew Mello ~ y ' s whereabouts and if she knew of any property that may have been missing from his apartment (R 18). The report was provided to defense counsel at least ten months before. They waited until the day before trial to indicate that they did not have it, in spite of repeated requests to come into the state attorney's office and go over materials. Mr. Damore further indicated that thousands of documents were provided to defense counsel over the course of a year and he made sure that they had everything that he had. He also noted that many of the materials they complain of not having had been supplied to them in cases in which they represented Ms. Wuornos in Marion and Citrus County (R 19). The court denied the motion to continue indicating that defense counsel would have ample opportunity to investigate.
Judge Blount also indicated that he believed that Mr. Nolas knew all about it before he filed the motion (R20). Later, the state indicated that this was the first request it had ever had by defense counsel to locate Jacqueline Davis. Ms. Davis' name was provided to defense counsel in the initial answer to Deland for discovery. The report or synopsis of the statements by Detective Horzepa was provided to defense counsel ten months before (R 1387). The state further indicated that a taped statement was provided to the original defense attorneys in the case, Mr. Ass and Mr. Jacobson (R 1388). The state agreed to provide the defense with the address and phone number of Ms. Davis as was provided by Jeff Davis who had testified (R 1389). A proffer of Jacqueline Davis was then taken (R2079). She indicated that she recalled speaking to two detectives in reference to Mallory's disappearance (R 2081). They taped the interview. They discussed Mallory's history in Maryland (R 2081). Mr. Mallosy had said that when he was a young man he had been charged with burglary for entering someone's house. She was asked whether she recalled telling the detective that Mallory had told her that he had been incarcerated for some time in Maryland. She indicated that Mallory told her that he had been ina rehabilitative program. We had entered a lady's house who had been washing her hair and walked behind her and put his hand out in frant of her.
He didn't touch her but she screamed (R 2082). He told her about a rehabilitative or experimental program. It was a new program.
They didn't discuss it more than that. She said that Mallory had also told her that he had a relationship witha woman which had ended. She was an ambassador's wife or something like that (R 2083). They were divorced. Mallory told her that he thought he had seen this woman dancing ina top less bar. He said that he went to nude bars as he had insomnia and it was something that would be available (R 2084). He also told her that he wanted to have plastic surgery to have his nose and the top of his ear fixed. He felt that he had a nose disfiguration. She indicated that she had talked to the detectives about Mallory's being apprehensive that people were following him or being paranoid (R 2085). She further recalled talking to the detectives about what she perceived as the two personalities that Mallory had. One personality was very easy going but there was another personality in which he withdrew into himself (R 2086). She did not remember Mallory telling her that he had been in jail. He told her that he was ina rehabilitative program. It was for ten years (R 2087). He indicated that it was asa result of the burglary. He told her that he went to court on it (R2088). She indicated that Mallory bathed everyday after work (R 2089). She was aware that he had pornographic tapes (R2090). She also indicated that he had lost his security clearance. She remembered discussing Mallory's drinking with Detective Horzepa. She also recalled discussing Mallory's smoking of marijuana. She sometimes wondered if when he smoked marijuana it made his personality change (R 2091). She recalled telling the detective that Mallory did not have male friends. She indicated that because of the fact that she had an accident a few years ago that sometimes there were memories that she did not have (R 2093).
On cross examination she indicated that Mallory was a gentle, kind and caring person in their relationship. He was never sexually aggressive toward her or any female and that such acts would be out of his character. She never saw him so much as @ get a speeding ticket. She indicated that he was just a gentle, laid-back man (R 2094). The state objected to the defense presenting reputation evidence as to the violence of the victim since there was no evidence that Wuornos knew of such prior acts of violence. Nevertheless, the court allowed the defense to call Jacqueline Davis asa witness (R 2096). The defense chose not to call her.
It is clear from the circumstances of this ca5e that defense counsel saught to not only require the state to do it3 job for it but also to lead the trial judge around by the nose.
The real complaint before the court is that such endeavor was not successful. In Richardson o. State, 246 So. 2d 771 (Fla. 1971), this court set forth a mandatory procedure to be followed by the trial court in the event of a discovery violation. In assessing the extent to which sanctions should be imposed for violation of the discovery rules, the trial court must specifically determine whether, and to what degree, the violation has prejudiced the other party. State. Hall, 509 So. 2d 193 (Fla. 1987). Although the court has broad discretion in making this determination, such discretion may only be exercised after the trial judge has made a formal inquiry -- commonly referred to asa Richardson hearing -- into all of the circumstances surrounding a party's non compliance with the discovery rule. Lucas u. State, 376 SO. 2d 1149 (Fla.
(1979). Where the trial court determines that no discovery violation has occurred, a Richardson hearing is not required.
Mutheson u. State, 500 So. 2d 1341 (Fla. 1987). In the record in this case a reasonab1.e inference from the entire colloquy could be drawn that Judge Blount found that there was no discovery violation. Judge Blount indicated that he believed Mr. Nolas knew all about it before he filed the motion (R20). The state indicated that it had given the tape to previous defense counsel.
Mr. Nolas claimed that he was unable to contact Jacqueline Davis because he did not have her address. No mention was made that information about the ta.pe was given to Mr. Nolas through Detective Horzepa. Yet, somehow Mr. Nolas knew about the tape and filed a motion to compel. It can only be assumed that he was in possession of such information from some source prior to requesting it, the probable source being the previous public defenders. Jacqueline Davis' name was listed asa witness and Mr. Nolas could well have asked the state for her address at any time prior to the hearing. Thus, it is clear that the information was readily available to the defense by the exercise of due diligence through deposition, subpoena or other means.
The evidence was not even discover able in the first instance.
Evidence as to character alone may be introduced under appropriate circumstances to help show the actions or intentions of a victim with respect to the defendant. Such evidence may not be used to explain a defendant's action unless the proper foundation of prior knowledge has been established. Hodge u.
State, 315 So. 2d 507 (Fla. 1st DCA 1975). The vicious ness of the character of the deceased can only be shown where a plea of self defense is inter posed. Williams u. State, 238 So. 2d 137 (Fla. 1st DCA 1970). While evidence of specific prior acts of violence by the dec ease(, known to the defendant at the time of the slaying, 0 may be admissible on behalf of the defendant on the issue of self-defense to prove the reasonable ness of the defendant's fear at the time of an alleged murder, evidence of such specific acts of violence is not admissible to show proof of the deceased's violent and dangerous character. Proof of the deceased's violent character may be shown only by his general reputation in the community, i.e., what is reported or understood to be the community's estimate of the person's character. RoZEe 0. State, 314 So. 2d 167 (Fla. 3d DCA 1975). Pursuant to Wuornos' own testimony she had only met Mallory by virtue of being picked up on the highway and therefore had no evidence of specific prior acts of violence by him. The state has no duty to turn over inadmissible evidence. Such evidence would not even have led to discover able evidence since documentation of such criminal history would have been no more admissible than the testimony sought to be introduced by Jacqueline Davis. Even though there was no discovery violation, the sage trial judge in this case wished to eliminate any possible controversy on appeal. Ms.
Davis was made available to counsel. A proffer of her testimony was put on the record. The court then allowed the defense to call Jacqueline Davis asa witness even though the crux of her testimony would not be admissible (R 2096). It was the defense that chose not to call her asa witness. After such decision was made no objection was made for the record as to the propriety of the law in regard to prior violent acts. No further request was made fora Richardson hearing to apprise the trial judge that the defense viewed his remedial measures as inadequate. Such 0 argument is now waived. Counsel chose only to inappropriately cast the occurrences below into a Richardson bouillabaisse. The defendant should hardly be heard to complain of the fact that she made a tactical decision not to call a witness who would have testified that despite evidence of one prior bad act asa youth that the deceased victim was a gentle, laid back man. There are no Richardson implications in this scenario. Even if there were, it is clear that Richardson was satisfied since the judge heard extensive argument and determined that remedial steps would eliminate any prejudice to the defendant.
Reports or summaries made by agents of the prosecution condensing a witness testimony for use at trial is an example of 0 work product to which the accused is not ordinarily entitled except as may be made available at trial for the purposes of effective cross examination within the scope of the right of confrontation. State. Gillespie, 227 So. 26 550 (Fla. 1969). In the present case, defense counsel had access to the notes of Detective Horzepa and was able to cross examine him so that, again, there was no need fora Richardson hearing to determine whether there was a discovery violation, whether it was willful, or whether it prejudiced the defense. As to the witnesses concerning the similar fact evidence, the court properly determined that notice of similar fact evidence was given some five months prior to the trial. Defense counsel agreed that the state indicated what Williams Rule evidence it intended to introduce, The state indicated that it had provided every document that it had in its possession (R 1381-83). Counsel was provided reports nevertheless and cross examined the witnesses (R 1324-25, 1365-66; 1604-5). Again, this is a bonus Richardson claim. See, Justus u. State, 438 So. 2d 358 (Fla. 1983). The discovery rule, in any event, does not create a duty on the prosecutors part to conduct investigations on the defendant's behalf or actively assist the defense in investigating the case.
Hunsbrough u. State, 509 So. 2d 1081 (Fla. 1987).
I1 APPELLANT WAS NOT DENIED A FAIR
TRIAL BY THE INTRODUCTION OF EVIDENCE OF
COLLATERAL CRIMES, WHICH EVIDENCE DID
NOT BECOME A FEATURE OF THE TRIAL.
Appellee would submit that this issue is waived. While appellant originally sought to exclude evidence of collateral crimes her position thereafter was not consistent with such intent. On cross-examination of Tyria Moore the defense opened the door and brought out the fact that Wuornos and Moore had been driving another car and that Moore left when she saw composites of her and Wuornos on television in regard to a crime other than the Mallory case (R977). The defense also brought out the fact of movie deals based on Wuornos' life and actions (R 1008). Wuornos then took the stand in the defense case and explained inconsistencies by indicating that she was referring to murders other than the murder of Richard Mallory (R 1959-2065; 2061). In clasing argument defense counsel stated: "And when you consider that Mr. Spears, that Mr. Carskaddon and the other things that Mr. Tanner talked to you about, he suggested that I somehow argued that it wasn ' t admissible, of course, those items are admissible, you saw them, if they weren't admissible, they wouldn't be here."
(R 2194). An adequate objection must be made at trial to such evidence. Correll u. State, 523 So. 2d 562, 566 (Fla. 1988); Crespo
u. State, 379 So. 2d 191 (Fla. 4th DCA 1980). Appellant should not be heard to complain that such evidence was admitted and became a feature when she takes a position inconsistent with her objection, thereby waiving it and focused the jury's attention on collateral matters herself. See, Sias u. State, 416 SO. 2d 1213 (Fla. 3rd DCA 1982).
Wuornos is entitled to no relief, even if the claim could be entertained. Similar fact evidence of ot ire crimes, wrong, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity. $ 90.404 (2)(a), Fla. Stat. (1992).
Evidence of other crimes is also admissible to prove common scheme or design. Walker u. State, 403 So. 2d 1109 (Fla. 2d DCA 1981). These familiar categories stated as a basis of admissibility of similar fact evidence are given by way of example and not by way of limitation. Cotita u. State, 381 So. 2d 1146 (Fla. 1st DCA 1980). Ina normal trial, evidence reveal ng other crimes is admissible if it casts light upon the character of acts under investigation by showing motive, intent, absence of mistake, common scheme, identity or system or general pattern of criminality so that evidence of such offenses has a relevant or material bearing on some essential aspect of the offense being tried. Sireci u. State, 399 So. 2d 964 (Fla. 1981) Similar fact evidence may be admitted to establish a pattern of conduct similar to the pattern of conduct in the crime. Jones u. State, 398 So. 2d 987 (Fla. 4th DCA 1981) While there must be more than a general like ness between the similar act and the crime charged to allow admission of similar fact evidence, absolute factual identity is not required. Stano u. State, 595 So. 2d 973 (Fla. 1st DCA 1992) The test for admissibility of evidence of collateral crimes is relevance. Heiney u. State, 447 So. 2d 210 (Fla. 1984) As long as evidence of other crimes is relevant for any purpose, 0 the fact that it is prejudicial does not make it inadmissible.
Simi-deci, supra. Evidence which has a reasonable tendency to establish the crime charged is not inadmissible because it points to another crime committed by the defendant. Yesbiclz u. State, 408 So. 26 1083 (Fla. 1982). Similar fact evidence is generally admissible, even though it reveals the commission of another crime, as long as the evidence is relevant to a material fact in issue and is not admitted solely to show bad character or criminal propensity. Gore u. State, 599 So. 2d 978 (Fla. 1992) Evidence of collateral crimes is admissible if it is not intended solely to demonstrate criminal propensity and if the two crimes share some unique feature suggesting the same perpetrator. State
u. Smith, 586 So. 2d 1237 (Fla. 2d DCA 1991) In the present case, the collateral crime evidence reflected that similar incidents took place in the same type of wooded or isolated areas; within the course of months of the murder in question; involved the same weapon, a.22 caliber revolver; the same modus operandi, i.e. hitching a ride, solicit ing an act of prostitution, driving to a secluded axe, robbing, and ultimately shooting the victims several times in the torso and abandoning their vehicles in another location; the same type of victim, a middle-aged or aging man as opposed to a stronger younger male with family ties; same type of offense; and such evidence was clearly admissible as it relates to a material fact in issue in that it demonstrated Wuornos' motive, intent, and state of mind, and the evidence was not geared toward demonstrating her bad character. Cf., Randolph u. State, 463 So. 2d 186 (Fla. 1984).
A similar case is Gore u. State, 599 So. 2d 978 (Fla. 1992), in which this court held that the collateral crime in which the defendant had allegedly stabbed a female victim was sufficiently similar to the charged murder to be admissible to establish identity and intent as both victims were transported to the site of the attack in their cars and suffered trauma to the neck area, and the defendant stole both victims' jewelry, pawned it shortly afterwards, fled in their automobile and represented that he had obtained the automobile from a friend or relative, The collateral offenses in this case also prove a common scheme or design a$ evidenced by similarities in the crimes, the fact that they occurred in the central Florida area off of major thoroughfares, which fora hitchhiking prostitutelrobberlrnurderer would be tantamount to a neighborhood, and the locker at the mini warehouse which provides a monetary theme for Wuornos' continuing actions as well asa repository for undisposed of property. See, also, Buenoano u. State, 527 So. 2 6 194, 197 (Fla. 1988). Evidence of subsequent robbery/murders would also be relevant to negate Wuornos' claim of self-defense.
The collateral murders did not become a feature of the trial. Evidence elicited by the state was confined to establishing that such crimes occurred, that they were committed by Wuornos', and that they were relevant. The prosecution went to great pains not to make the collateral evidence a feature of the trial. The videotape of her confession was condensed and edited so as to exclude matters not concerning the Mallory case
(I) (R 1871).
The prosecutors cross-examination of Wuornos' was hardly geared toward elicit ing evidence of collateral crimes. Such matters were interjected into the proceeding by Wuornos herself in her answers to questions on cross-examination. When caught in a logical contradiction Wuornos would explain away inconsistencies by siphoning off the facts of this case to other murders and claiming hysteria and confusion. (R 2025-26; 2028-29;
The prosecutor did not "harp" on collateral murders during final sum mation. The prosecutor simply stated:
Well, every case is different. But it's not unusual to have similar fact evidence in the case where there's evidence of other matters that are relevant and material brought up in the trial for the substantive offense...
And so there's nothing extraordinarily unique about what ' s happened here in this courtroom. I think probably the most unique thing is the woman is the circumstance. That's probably the most unique twist of the whole case. Because this woman set about a pattern of behavior that is unique. You were told by Mr. Miller that other juries in other cases would render verdicts on the other killings. And that's entirely true.
You are not here to find her guilty or innocent with regard to the other killings. The only verdict that you are going to be asked to render would be that regarding Mr. Mallory. But at the same time it doesn't mean you should not fully face your responsibility... (R Then Mr. Miller said that all of these other cases had absolutely nothing to do with the murder of Richard Mallory.
That's incredible. That'sincrediblea under the law and under the facts and under the circumstances of his case, Similar fact evidence, that is evidence of other crimes, is relevant and material and properly and legally should be considered when ruled admissible by the Court in criminal cases and even in civil cases. The case involving Mr.
Mallory is the case on trial. This is the only case in which you are to determine guilt or innocence. But with regard to the second victim, MR. Spears, the third, Mr. Carskaddon, the fourth, Peter Siems, fifth, Troy Burress, Dick Humphreys, last Walter Antonio in their automobile in the locations of where the bodies were found and where the cars were found is all relevant and material key issues in this case. The key issues, and an instruction was read to you, I know it was a while ago, you will hear, J think, the same or substantially the same instruction again before you go to the jury room, but basically indicates that similar fact evidence, that's evidence of other crimes, when it's relevant to prove identity, opportunity, preparation, plan, common scheme or plan, patterned incriminality, intent or motive. In this case, we submit the absence of self-defense is relevant, that's relevant. It's relevant to what she did to Mr. Mallory.
(R 2169-270).
Richard Mallory was killed in December, December 1st precisely, eleven miles from the downtown Daytona Beach area, He was fifty-one years old. David Spears, killed in June, a hundred and twelve miles. Charles Carskaddon in June, ninety-four miles from Daytona.
Peter Siems reported missing in June, body never recovered, this is the one she said she left in Georgia. Troy Burress, sausage man, the way she identified him and by his vehicle, August 4, 1990, sixty-four miles from Daytona. Mr. Humphreys, he was the HERS man, September, 1990, sixty-eight miles.
Walter Antonio, November, a hundred and forty-seven miles. What do these men have in common? All of them were white males between the age of thirty-nine and sixty years old. They are all traveling major thoroughfares of Florida. They are all traveling alone. Each one of them made a fatal mistake. They picked up Aileen Wuornos. In each of those cases, she propositioned them for sex and she ultimately killed them all in isolated areas where there would be no witnesses. She shot every one of them in the torso, a couple she also shot in the head, multiple gunshot wounds all from a.22 caliber hollow point. You heard the bullets described over and over again, virtually the same bullets, same pistol as admitted by her.
Everyone of them's property was stolen and their vehicle was taken. And the vehicle was wiped clean in the case of Mr. Mallory, Mr. Spears. The -- Mr.
Carskaddon's vehicle was stripped, it was on the side of the highway, before the police were able to do much with it.
Peter Siems, that was the one that turned over an the 4th July and both the women were in that car, both the women were riding around in that car, I say both women, Tyria Moore and Ms. Wuornos.
And that's the vehicle in which her, Aileen Wuornos' bloody hand print was found. The other three vehicles were all wiped clean again. The license plate was removed on five of the seven vehicles. All the vehicles were left abandoned and they were left abandoned ina range of from twelve to a hundred seventy miles. And finally, the proper of three of the five men was found in Aileen's warehouse. This evidence demonstrates a patmrn and a method of criminality and intent and plan to carry out robberies and murder on the highways of the State of Florida by this woman.
And she had picked a selected target type of individual to kill. (R 2170- The prosecutors final sum mation as recited above reflects only the evidence admitted at trial necessary to show the commission of such other offenses and its relevance to this case.
There was no undue emphasis of such evidence and the prosecutor, 0 himself, even informed the jury that it was not their job to decide guilt or innocence in the collateral cases. The likelihood that the jury would give undue emphasis to such evidence was also diminished by an instruction by the court prior to the admission of such evidence:
Ladies and Gentlemen of the jury, the evidence that you are about to receive concerning evidence of other crimes allegedly committed by the defendant will be considered by you for the limited purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, the absence of mistake or accident on the part of the defendant and shall -- and you shall consider it only as it relates to these issues. However, the defendant is not on trial fora crime that is not included in the Indictment that has been read to you. (R 1189).
As much as possible the trial court judiciously excluded from evidence photos which could be considered to be ordering on the gruesome or were unnecessary. The state was allowed to admit over objection four autopsy photos of Charles Richard Humphreys (R 1292-94). All of the autopsy photos of Humphreys were not offered into evidence. Dr. Janet Pillow carefully selected only those poloroids that would assist in making her testimony more meaningful to the jury (R1286). The court noted that these photos were "cleaned up pictures. '' (R 1288). Humphreys suffered gunshot wounds to his left chest, left back, right back, upper back of the right shoulder, left side of the back of the head, a right side of the abdomen and on the back of the right wrist (R 1290-1292), The nature of such wounds and trajectory of the bullet could be more fully comprehended by the jury by virtue of the use of photos. One of the photos, Exhibit 52-4 was only a photograph of the short sleeved white shirt that Humphreys was wearing when he was delivered into the morgue (R 1292). Another photograph, Exhibit 52-3 reflected only the back of the left side of the head where the gunshot wound entered (R 1292). The remainder of the photos portrayed gunshot wounds to the far left side of the back and the right lower quadrant of the abdomen and the exit wound and the right wrist (R 1293). Such photos were clearly an aid to the jury in understanding the nature of Humphrey's wounds. The fact that the doctor would have been able to testify as to the injuries that were sustained by Mr.
Humphreys without the use of the photographs was not ascertained @ by defense counsel until after the witness had fully testified and on cross examination (R 1309). Defense counsel simply failed to voir dire Dr. Pillow as to this fact prior to her testimony and use of the photographs. In comparison, counsel did choose to voir dire Dr. Pillow as to photographs of David Spears and when the doctor admitted that she could testify without photographs the court sustained the objection and did not allow such photos into evidence (R 1304-1305). Appellee would submit that this issue has been waived.
Mr. Humphreys' brief case was admitted as States Exhibit 76 over on-going objection by the defense as to similar fact evidence (R 1445). This brief case was found along with other items in Wuornos' locker at Jack' Mini Warehouse (R 1437; 1445).
The brief case was clearly relevant to establishing a pattern of criminality whereby Wuornos posing as a damsel in distress accepted rides with men then robbed and killed them in secluded areas and confiscated their belongings to pawn or hold in her storage locker.
Introduction into evidence by the state of a single photograph of Troy Burress' body as it was found hardly amounted to overkill in relation to the similar fact issue. Burress was found lying face down with his hands under his body covered with palm fronds (R 1350). This photo was hardly used to inflame the jury with evidence of Wuornos' other handiwork. When decomposition sets ina victim is already dead so the jury could hardly have been inflamed by the fact that Burress was identified by dental records. Such evidence was admissible so as to establish the identity of the victim.
Contrary to appellant's assertion pictures of David Spears' badly decomposed body were not admitted into evidence. The photographs of x-ray of Spears' body that were taken in the morgue and demonstrated the location of the bullets were admitted into evidence without objection by counsel (R 1301-1302). The state attempted to introduce another group of photographs actually showing the body af the deceased (R 1302). Counsel objected to pictures of a decomposed skeletal body on the basis that the prejudice of the two photographs greatly outweighed their probative value and the doctor had the x-ray photographs from which she could testify (R 1303). Defense counsel voir dired Dr. Pillow and established that she would be able to testify without the photographs. The court then sustained counsel's objection and the photos were not admitted into evidence (R 1304-1305). It is highly unlikely that the jury would be prompted to pillory Wuornos on the basis of x-ray.
In essence, what the appellant complains of is the fact that the state established the corpus delicti of the similar fact crimes. Had such evidence not been introduced the appellant would be before this court complaining of the lack of evidence of such crimes. The number of victims was within the control of Wuornos. The circumstances of each victim's death established a common scheme or pattern of criminality.
Contrary to appellant's assertion, absolute factual identity is not required, as previously argued above. It is always possible to point to some dis similarities. In this case, @ however, as in Gore, supra, the similarities are overwhelming.
"These points of similarity 'pervade the compared factual situations' and when taken asa whole are 'so unusual as to point to the defendant. ' " Kight u. State, 512 So. 2d 922, 928 (Fla.
1987)(quoting Drake II. State, 400 So. 2d 1217, 1219 (Fla. 1981).
None of the murders occurred before the time that Wuornos came into possession of the.22 caliber revolver (R 1830). Each of the men that was murdered by Wuornos was a white male. Each victim was beyond an age that could be described as youthful (R 1747). They were traveling alone on interstate highways. Each victim was picked up by Wuornos while hitchhiking, by her own admission (R 1069). Each had multiple gunshot wounds through their torso with the exception of Mr. Siems whose body has not 0 yet been located (R 859-860; 1224; 1291; 1393; 1473). Wuornos said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she said she always aimed for the torso (R 1739). The body of each victim was found in an isolated area (R 747; 1337; 1430; 1577).
Personal identification and property was taken (R 1076; 1233;
1338). They were killed witha. 2 2 caliber revolver (R 1300;
1477; 1656-1657). It was loaded with - 2 2 caliber bullets which were recovered from each victim's body with the exception of Mr.
Siems (R 865-867). Wuornos admitted to using the 3ame gun and the same bullets to murder Siems. All of the bullets were Stinger brand, CCI manufacturer, witha six right hand twist,. 2 2 caliber hollow point, jacketed (R 910-912; 1368-1375; 1376; 1550;
1563). The bullets were of the same type of caliber and model and make and manufacturer as was the weapon recovered in Rose Bay
(R 909-910; 914; 918). The weapon found in Rose Bay was loaded with similar type ammunition (R 847; 907). In each case the car was taken (R 1330). The victims were discovered in 1.locations different from where their vehicles were ultimately found (R 701;
All their personal property had been removed from the cars (R 733; 818; 1080; 1347; 1352; 1580; 1671). Their pockets had been ransacked (R 773; 1248). The cars had been wiped clean of prints by Wuornos (R 1080). What is established by these similarities is a pattern. It is a signature that establishes the motive and intent of Wuornos to rob each of her victims. Many of these victims were shot in the back or the head, which exhibits a fact pattern that Wuornos was not acting in self defense on any of these occasions (R 1291; 1393; 1577; 1593). During the course of Wuornos' confession she described numerous articles that she
Twelve pages, and the scan of them carries no readable text at all: the Florida State University copy of this reply brief came through the optical reader as blank. It is not reproduced because there is nothing to reproduce. The brief exists on the docket and can be ordered from the clerk of the Supreme Court of Florida under case number 79484.
No. 7 9, 484
AILEEN CAROL WUORNOS,
vs.
STATE OF FLORIDA,
Appellee.
[September 22, 19941
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Aileen Carol Wuornos. We have jurisdiction. Art. V, 5 3 (b) (1), Fla. Const.
On December 1, 1989, a deputy in Volusia County discovered an abandoned vehicle belonging to Richard Mallory. His body was found December 1 3, several miles away ina wooded area. Mallory had been shot several times, buttwobulletstothe left lung were found to have caused hemorrhaging and ultimately death. The medical examiner also determined that Mallory had been drinkirlg at the time of his death, though it was not clear whether he was legally intoxicated.
Tyria Moore and Aileen Wuornos lived together as lovers for about four and a half years. Moore worked asa maid, while Wuornos worked asa prostitute along Central Florida highways.
Wuornos drank substantial amounts of alcoholic drink while working asa prostitute and at other times, and she also carried a gun for protection.
On December 1, 1989, after several days working along the roadways, Wuornos returned to a Volusia County motel where she and Moore were living. Wuornos was intoxicated and told Moore that she had shot and killed a man early that morning. She said she sorted through the man's things, keeping some, discarding others. Wuornos said she abandoned the man's car near Ormond Beach, and left his body ina wooded area.
Several months later, Moore began seeing media reports that law officers were looking for two women suspected of being involved ina series of murders. Moore became afraid, left Wuornos, and returned to her home up north. Florida law officers later contacted her in Pennsylvania, and Moore agreed to return to Florida in an attempt to clear herself of any wrongdoing.
Moore then tried to extract a confession from Wuornos, ultimately succeed ing.
Wuornos gave taped confessions to a Volusia sheriff's investigator. When she first indicated she wanted to talk to law officers, she also expressed a desire to speak with an attorney.
A lawyer from the public defenders office was summoned, who strongly advised Wuornos against confessing both before and during her comments to law officers. She stated that she did not want to follow her attorney's advice and then made her confession.
The different statements Wuornos made, however, are inconsistent with each other on major points. In the earliest confession to law officers, Wuornos said that Mallory picked her up while she was hitchhiking, and they later went into a secluded wooded area to engage in an act of prostitution. She and Mallory then began disagreeing because he wanted to have sex after only unzipping his pants. Wuornos said she felt Mallory was going to "roll her" (take her Mooney) and rape her. At this point, she grabbed a bag in which she kept a gun, and the two began struggling over possession of the bag.
Wuornos said she prevailed, pointed the gun at Mallory, and said: "You son of a bitch, I knew you were going to rape me. " Wuornos said that Mallory responded: "NO, I wasn't. NO, I wasn't.Il At this point, Wuornos told law officers she shot Mallory at least once while he still was sitting behind the steering wheel. Mallory then crawled butthe driver's side and shut the car door. At some point he was able to stand again. Wuornos said she ran around to the front of the car and shot Mallory again, which caused him to fall to the ground. While he was lying there, Wuornos said she shot him twice more, then went through his pockets, and finally concealed the body beneath a scrap of rug. Later, she drove off in the victim's car.
Wuornos also told law officers she had given Moore inconsistent stories about what had happened. In one version, Wuornos stated she told Moore that she had found a dead body hidden under a scrap of rug in the woods. In another, she confessed to the killing.
Wor110s~ confession changed considerably in later version. Wuornos later said she had offered to perform an act of prostitution with Mallory and that he then drove to an isolated area. There, the two drank, smoked marijuana, and talked for about five hours. Wuornos described herself as "drunk royal.'I Around 5 a.m., Wuornos disrobed to perform the act of prostitution. She asked Mallory to remove his clothes, but he said he only wanted to unzip his pants and didn't have enough Mooney to pay her fee. Wuornos said she then went to retrieve her clothes, but Mallory whipped cord around her neck and threatened to kill her "like the other sluts I've done." He then tied her hands to the steering wheel, Wuornos said.
According to Wuornosls later version of the case, Mallory violently raped her vaginally and anally, and took pleasure from Wuornos cries of pain. Afterward, she said that Mallory cleaned blood from his penis with robbing alcohol, thensquirted alcohol onto her torn and bloody rectum and vagina.
1 Wuornos said Mallory eventually united her and told her to lie down. Believing he intended to kill her, Wuornos said she began to struggle. Mallory, she said, told her, IIYou're dead, bitch. You're dead." At this juncture, Wuornos said she found her purse and removed her gun. Mallory grabbed her hand, and the two began fighting for the gun's possession. Wuornos won the fight, then shot Mallory. Wuornos said Mallory kept morning at her despite her warnings, so she shot him two more times.
Wuornos also confessed that she took some of Mallory's property and pawned it. Some of his property later was found in a rented warehouse unit used by Wuornos. More than a year later, she took the murder weapon and threw it into Rose Bay south of the motel where she was staying at the time. Moore later showed law officers where to find the gun. Grooves in the gun were similar to marking found on the fatal bullets, though an expert testified that the particular grooves were fairly common and could be found in other weapons.
Wuornos said that she had begun her career asa prostitute at age 16. At about age 20, she settled in Florida, and began working asa highway prostitute at least four days of the week.
Her job was dangerous, she said. On some occasions she had been raced, beaten, and raped by customers.
At trial, the State was allowed to introduce similar crimes evidence about Wuornos' alleged involvement in several other murders. These were:
HumDhrevs. On September 12, 1990, officers in Marion County found the body of Charles Richard Humphreys. The body was fully clothed, and had been shot six times in the head and torso.
Humphreys' car was found in Suwannee County.
Sirens. In June 1990, Peter Siems left Jupiter, Florida, heading for New Jersey. Law officers later found Siems' car in Orange Springs on July 4, 1990. Witnesses identified Tyria Moore and Aileen Wuornos as the two persons seen leaving the car where it ultimately was found. A palm print on the interior door handle matched that of Wuornos. Siems' body has never been found.
Antonio. On November 19, 1990, the body of Walter Eno Antonio was found near a remote logging road in Dixie County.
His body was nearly nude, and had been shot four times in the back and head. Law officers found Antonio ' scar five days later in Brevard County.
Burress. On August 4, 1990, law officers found the body of Troy Bussess ina wooded area along State Road 19 in Marion County. The body was substantially decomposed, but evidence showed it had been shot twice.
Spears. On June 1, 1990, officers discovered the body of David Spears ina remote area in Southwest Citrus County. Except fora baseball cap, Spears was nude. He had died of six bullet wounds to the torso.
Carskaddon. On June 6, 1990, officers discovered the body of Charles Carskaddon in Pasco County. The medical examiner found nine small caliber bullets in his lower chest and upper abdomen For the five bodies that were recovered, the bullets all bore similar characteristics. As noted above, the grooming pattern was fairly common and could have come from weapons other than the one Wuornos used.
A variety of items that once belonged to Mallory were traced to Wuornos. A camera from Mallory's automobile was found inside the rented warehouse unit, which was opened witha key taken from Wuornos' possession. Wuornos had rented the unit under an alias. Other items from Mallory's car had been pawned or given away to others by Wuornos.
The trial jury found Wuornos guilty of first-degree murder and armed robbery witha firearm.
Her penalty phase commenced January 28, 1992. Three defense psychologists concluded that Wuornos suffered borderline personality disorder at the time of her crime, resulting in extreme mental or emotional disturbance. The psychologists said her ability to conform her conduct to the requirements of the law was substantially impaired, and that Wuornos exhibited evidence of brain damage.
One expert, Dr. Krop, testified that Wuornos lacked impulse control and had impaired cognition. Dr. Toomer said that Wuornos believed she was in imminent danger at the time of the murder, and that the remorse she exhibited revealed she did not suffer antisocial personality disorder.
The States expert psychologist, DR. Bernard, agreed that Wuornos had borderline personality disorder, but also found that she suffered antisocial personality disorder. Dr. Bernard also agreed that she had an impaired capacity and mental disturbance at the time of the crime, but believed the impairment was not substantial and the disturbance was not extreme. Dr. Bernard agreed there was evidence of non statutory mitigating evidence including Wuornos' mental difficulties, alcoholism, disturbance, and genetic or environmental deficit.
In the penalty phase, the defense introduced evidence about Wuornos' background. Her parents were divorced when she was born, and her biological father hanged himself in prison, where he was serving time for rape and kidnapping. Her mother abandoned her, and Wuornos was adopted by her grandparents.
However, her grandfather was an alcoholic, and later committed suicide. Her grandmother also drank a good deal and died of a liver disorder. Wuornos' brother died of cancer at age 21.
During junior high, Wuornos began exhibiting hearing loss, vision problems, and trouble in school. Her IQ was established at 81, in the low dull-normal range. School officials urged that Wuornos receive counseling and tried to improve her behavior by administering a mild tranquilizer.
At about age 14, Wuornos was raped by a family friend.
She waited six months before revealing that she was pregnant, and her grandparents blamed her for the pregnancy. Her grandfather later forced her to give up the child for adoption.
Some evidence indicated that Wuornos life with her grandparents was physically and verbally abusive. Wuornos left home, but when she tried to return her grandfather refused to take her back. She then went onto the streets and began a life of prostitution and alcohol and drug abuse.
The State introduced a rebuttal witness as to Wuornos background. Wuornos biological uncle (also her adoptive brother), Barry Wuornos, said that his family had a "normal lifestyletfand was a "straight and narrow family." Barry acknowledged that his father (Aileen's biological grandfather) "laid down rules1but was someone you could look up to. Barry said he never saw his father beat Aileen, although the girl sometimes was spanked; and the discipline may have become more "tight" when Aileen was around 10 years of age. Barry agreed that Aileen's biological father was abusive and Ira criminal type.
The jury recommended death by a vote of 12 to 0. The trial court found five aggravating circumstances and one mitigating Eactor, l then sentenced Wuornos to death on the murder charge and ten years for the armed robbery.
The aggravating factors were: (1) Wuornos previously had been convicted of a felony involving the use or threat or violence (a 1982 robbery conviction): (2) The murder was committed during a robbery; (3) murder committed to avoid arrest;
(4) The murder was heinous, atrocious, or cruel; and (5) The murder was cold, calculated, and premeditated, without pretense of moral or legal justification. The mitigating factor found by the trial court was that Wuornos suffered borderline personality disorder.
As her first issue, Wuornos argues that certain information and documents were withheld from her during pretrial discovery, contrary to the rule of law in Richardson v. State, 246 So. 2d 771 (Fla. 1971), and its progeny. Wuornos contends that she was not told that law officers had interviewed and taped a conversation with Jacqueline Davis, Mallory's girlfriend.
Wuornos believes that this testimony would have established prior violent disposition toward women when Mallory was in his late teens.
The record, however, sufficiently supports the conclusion that Davis's name and her taped statement had been furnished to Wuornos original defense team within the time limits of the Richardson rule.2 In any event, the trial court allowed the defense to proffer Davis's testimony: Other than hearsay, Davis stated that to her personal. knowledge Mallory always had been gentle toward women. Moreover, after the proffer of Davis's testimony, the defense chose to rest its case and not call Davis to the stand in the presence of the jury. This happened even though the trial court said it would permit her to testify within the requirements of the evidence code. We conclude that there was no actual discovery violation with regard to Davis's testimony, and hence there was no need fora Richardson hearing.
The record at least suggests some lack of continuity between the original defense team and the subsequent one that took over the case before trial. This question is not properly before the Court in this appeal.
On a related point, Wuornos argues that law enforcement witnesses brought to the witness stand notes out lining their recollection of the events surrounding the murder investigation.
These notes were afforded to defense counsel immediately prior to the testimony in question. Wuornos concludes that this procedure also violates Richardson. We find that it does not. The notes in question constitute the kind of "reports" or "summaries" mentioned in State. GillesDie, 227 So. 2d 550, 556 (Fla. 2d DCA 19691, which are not discover able unless and until they actually are used to refresh a witness's memory at trial.
Wuornos also complains that she was not afforded proper pretrial discovery regarding evidence the State intended to introduce pursuant to the rule of law established in Williams v.
State, 110 So. 2d 654 (Fla.), cert. denied, 361U.S. 847, 80 S.
Ct. 102, 4 L. Ed. 2d 86 (1.959). This evidence related to some of the other murders with which Wuornos was charged. On this point, the trial court concluded that Wuornos counsel either had been afforded the discovery in question or had failed to exercise opportunities to review or copy the materials. The record provides sufficient support for this conclusion. While Richardson afford much to the defense, it does not mean the State must perform the defense's discovery for it. In sum, we find no discovery violation here that would have required a Richardson hearing in the first instance.
Second, Wuornos argues that the extensive Williams rule evidence presented by the State unlawfully prejudiced her case while it may be true that similar crimes evidence should not be used if it amounts to needless see United States.
Beechum, 582 F.2d 898 (5th Cir. 1978), cert. denied, 440 U.S.
920, 99 S. Ct. 1244, 59 L. ED. 2d 472 (1979), we cannot say that such was the case here. Wuornos own testimony at trial portrayed her as the actual victim here. She claimed Mallory viciously abused her and then engaged in actions suggesting he intended to kill her. This was the only eye-witness testimony of the actual murder and, within itself at least, was consistent.3 Had the jury believed this testimony, it might have concluded that Wuornos lacked premeditated intent and thus should be convicted of some lesser degree of homicide or acquitted.
In other words, the State relied on the similar crimes evidence to rebut Wuornos' claims regarding her level of intent and whether she had acted in self-defense. This was proper purpose under the Williams rule. Williams v. State, 621 So. 2d 413 (Fla. 1993); Goldstein v. State, 447 So. 2d 903, 906 (Fla.
4th DCA (1984); Villa v. State, 441 So. 2d 1181 (Fla. 4th DCA (1983), review denied, 451 So. 2d 851 (Fla. (1984).
We also do not agree with Wuornos' contention that the nature of the similar crimes evidence was so disturbing that its relevance was outweighed by the potential for prejudice. See 5 90.404(2) (a), Fla. Stat. (1989). All evidence of a crime, including that regarding the murder in question, llprejudiceslt the Wuornos testimony obviously was inconsistent with her own prior confessions made to law officers and others.
defense case. The real question is whether that prejudice is so unfair that it should be deemed unlawful. We cannot say that this was the case here. The nature of the various crimes was relevant in establishing a pattern of similarities among the homicides. This, in turn, was relevant to the States theory of premeditation and to rebut WUOS ~ O Claim ~ that she was the one attacked first. Relevance clearly outweigh prejudice here; and the similar crimes evidence was fair within the requirements of the law.
Wuornos urges that the Williams rule evidence here also contained improper victim impact material. This included information about the religious activities of some victims, and the fact that one victim was a retired police officer, among other details. While some of the evidence at first blush may appear to have exceeded what is proper under Burns v. State, 609 So. 2d 600 (Fla. 19921, we also find that any possible error was harmless beyond a reasonable doubt in light of the entire record.
This is true as to both the guilt and penalty phases. Id. at 606-07. Much of the information was anecdotal material associated with matters that clearly were relevant. Other details, such as the religious activities of one victim, were directly relevant because one of Wuornos confessions identified one victim as 'The Christian guy." When a confession opens the door to such information about the victim, there is no Burns violation.
As her third issue, Wuornos contends that law officers improperly tricked her into confessing and in doing so also violated her right to counsel. It is true that Wuornos' former lover, Tyria Moore, encouraged Wuornos to confess and did so in part because of Moore's own fears of being prosecuted as an accomplice. The exchanges between Wuornos and Moore may have contained misstatements and exaggerations by both parties, but this is consistent with the emotional nature of the exchanges.
Viewed asa whole, we cannot agree that Wuornos' will was overborne by any official misconduct. She freely waived her rights and confessed, contrary to advice of counsel both before and during the first confession and later. For the same reason, there was no violation of her right to counsel. See Travlor v.
State, 596 So. 2d 957 (Fla. 1992).
Fourth, Wuornos contends that the trial court improperly denied a change of venue and allowed jurors to be chosen contrary to law. We disagree. The record shows that the parties were able to select jurors who all agreed that any pretrial publicity would not bias them and would not interfere with their ability to honor the trial court's instructions. We find that this was legally sufficient, and that the denial of the request fora change of venue was within the trial court's discretion. There also was no error in denying the excusal of several jurors for cause. All indicated they could abide by the trial court's instructions to the degree required by law. See Walls v. State, 19 Fla. Law Weekly S377 (Fla. July 7, 1994).
As her fifth issue, Wuornos argues several errors in the penalty phase. She contends that the jury was not properly instructed on improper " doublingtt of the aggravating factors of murder committed for pecuniary gain and murder committed during a robbery. It is true that our subsequent opinion in Castro v.
State, 597 So. 2d 259 (Fla. 19921, requires such an instruction.
However, we find that Castro was intended to have prospective effect only, as we have held in analogous con texts.4 $ee William
v. State, 582 So. 2d 610, 612 (Fla. 1991), decision reaffirmed by Groover v. State, 19 Fla. L. weekly S249 (Fla. May 5, 1994).
Thus, we find no reversible error in light of the fact that the trial courtts sentencing order properly avoided doubling.
Next, Wuornos challenges the trial court's instruction regarding cold, calculated premeditation. We recently held the standard instruction on this aggravator invalid. Jackson v.
State, 19 Fla. L. Weekly S215 (Fla. April21, 1994). That ' We recognize that this holding may seem contrary to a portion of Smith v. State, 598 So. 2d 1063, 1066 (Fla. 19921, which can be read to mean that any new rule of law announced by this Court always must be given retrospect ive application.
However, such a reading would be inconsistent witha number of intervening cases. E. Q., Wyatt v. State, 19 Fla. L. Weekly S247 (Fla. May 5, 1994); Peterka v. State, 19 Fla. L. Weekly S232 (Fla. April 21, 1994); Elam v. State, 636 So. 2d 1312 (Fla.
(1994); Jackson v. Duqcrer, 633 So. 2d 1051 (Fla. (1993); Taylor v.
State, 630 So. 2d 1038 (Fla. 19931, petition for cert. filed (U.S. May 11, 1994) (No. 93-9068); Valentine v. State, 616 So. 2d 971 (Fla. 1993); Koo v. Duqqer, 619 So. 2d 246 (Fla. 1993);
State. Johns, 613 So. 2d 1319 (Fla. 1993). We read Smith to mean that new points of law established by this Court shall be deemed retrospect ive with respect to all non-final cases unless this Court says otherwise.
instruction also was given here, over defense objections.
However, in Walls we held that the error is harmless if the murder could only have been cold, calculated, and premeditated without any pretense of moral or legal justification even if the proper instruction had been given.
Walls, 19 Fla. L. Weekly at S378 (citing State. DiGuilio, 491 SO. 2d 1129 (Fla. 1986)). We therefore must consider whether the four elements of cold, calculated premeditation were sufficiently established here.
The first element is that the murder was "cold." Jackson, 19 Fla. L. Weekly at S217. The States theory of the case here, which was supported by the similar crimes evidence, was that Wuornos coldly and calmly planned this killing and did not act out of emotional frenzy, panic, or a fit of rage. We recognize that Wuornos' own testimony was to the contrary. However, judge and jury were entitled to reject that testimony as self-serving, unbelievable in light of Wuornos' constantly changing confessions, contrary to the facts that could be inferred from the similar crimes evidence, or contrary to other facts adduced at trial. Walls, 19 Fla. L. Weekly at S378. Thus, the record establishes cold ness to the requisite degree.
The second element is that the murder was the product of a careful plan or pre arranged design to commit murder before the fatal incident. Jackson, 19 Fla. L. Weekly at S217 (quoting Rogers v. State, 511 So. 2d 526, 533 (Fla. 1987)) cert. denied, question, the States theory of the case was that Wuornos had armed herself in advance, lured her victim to an isolated location, and proceeded to kill him so she could steal his belongings. By definition, this sequence only could be the product of a careful plan or pre arranged design. Judge and jury would be within their discretion in rejecting Wuornos' testimony to the contrary, so this element also exists and is sufficiently supported by the record.
The third element is that there must be "heightened premeditation" over and above what is required for unaggravated first-degree murder. Walls, 19 Fla. L. Weekly at S379. We have found this factor present when the prevailing theory of the case established "deliberate ruthlessnessv1in committing the murder.
Id. at 5379. The Statestheory of the case, especially that relying on the similar crimes evidence and Wuornos' initial confession, established this type of heightened premeditation to the degree required by law. Accordingly, the third element exists here.
The fourth and final element is that the murder must have no pretense of moral or legal justification. Jackson, 19 Fla. L.
Weekly at S217 (quoting Band v. State, 536 So. 2d 221, 224-25 (Fla. 1988), cert. denied, 489 U.S. 1087, 109 S. Ct. 1548, 103 L.
Ed. 2d 852 (1989)). A "pretense" of the type required here is any color able claim based at least partly on uncontroverted and believable factual evidence or testimony that, but for its incomplete ness, would constitute an excuse, justification, or defense as to the homicide.
Walls, 19 Fla. L. Weekly at S379 (footnote omitted). An incomplete claim of self-defense would fall within this definition provided it is uncontroverted and believable. Id. at S379 (citing Christian v. State, 550 So. 2d 450 (Fla. 19891, cert. denied, 494 U.S. 1028, 110 S. Ct. 1475, 108 L. ED. 2d 612 (1990)); Cannady v. State, 427 So. 2d 723 (Fla. 1983). While Wuornos' factual testimony advanced an incomplete self-defense claim, we believe that claim was largely controverted by the facts of the murder and the similar crimes evidence together with the items of property Wuornos had taken from her various victims, including Mallory.
Moreover, that testimony also could be rejected as self - serving, untrustworthy in light of Wuornos' inconsistent.
statements, or inconsistent with the facts--questions that go to the believability of the testimony. Accordingly, the finders of fact would have been entitled to reject the claim and conclude that there was no pretense of moral or legal justification here, which is sufficiently slipported by the record.
For these reasons, we conclude that the facts surrounding Wuornos' crime would have established cold, calculated premeditation under any definition. Therefore, the error in not giving the Jackson instruction is harmless beyond a reasonable doubt. Walls, 19 Fla. L. Weekly at S379.
Wuornos also argues that the trial court erred in instructing the jury on the factor of murder committed while engaged in the commission of a robbery. She contends the evidence does not support giving the instruction. We disagree.
At the very least a jury question existed, in part because items once belonging to Mallory were faund in Wuornos' warehouse unit or had been pawned or given away by her. The similar crimes evidence, moreover, tended to bolster the States theory of the case, which judge and jury clearly believed. We find that a proper jury question existed, which made the instruction proper.
Next, Wuornos states that-.the jury should riot have been instructed on the factor of witness elimination. We disagree. A law officer testified that Wuornos confessed that she wanted Mallory to die because she could not afford to be arrested, which would have resulted in her inability to continue working asa prostitute. Asa result, a jury question existed as to whether witness elimination was a dominant motive for the ki.llinq.
Walls, 19 Fla. L. Weekly at S379 - 8 0.
Wuornos also objects to the instruction on the factor of heinous, atrocious, or cruel, although she concedes that the reformulated instruction was given here. We have upheld the use of that instruction, Walls, 19 Fla. L. Weekly at S378, and do so again here today. Also, the evidence on this factor clearly meant that question existed to be resolved by the finder of fact, especially in light of the inconsistent confessions made by Wuornos and the similar crimes evidence.
Next, Wuornos contends that the trial court improperly permitted the State to introduce evidence reflecting a lack of remorse by the defendant. One guilt-phase witness stated that Wuornos had laughed while discussing the murder and had said she sometimes felt guilty, and sometimes felt happy, about the murder. However, these ambivalent statements were part of yet another confession Wuornos gave to an officer, which clearly was admissible.5 The fact that a defendant has confessed ina way that can be construed as showing a lack of remorse does not give rise to error, without more.
Likewise, in the penalty phase Wuornos argues that the State asked a defense expert whether Wuornos had shown guilt or a conscience with respect to the murder. The expert answered no, because Wuornos felt she had acted in self-defense. This testimony, however, was part of the States effort to show that Wuornos suffered an antisocial personality disorder, meaning she lacked a conscience. Moreover, this testimony was introduced to rebut the defense's contention that Wuornos suffered only from a "borderline personality1'disorder that would explain why Wuornos did not subjectively IllieII in her various inconsistent confessions, among other reasons. Once the defense argues the existence of mitigators, the State has a right to rebut through The record reflects that Wuornos made these statements to the officer spontaneously, without being questioned or prompted.
Wuornos even stated that her attorney would be mad at her for making the statements.
any means permitted by the rules of evidence, band the defense will not be heard to complain otherwise. There was no error.
Next, Wuornos alleges that the trial court improperly allowed the State during the penalty phase to introduce evidence of Wuornos collateral murders. This occurred after a defense expert testified that Wuornos borderline personality disorder explained why her inconsistent confessions should not be considered Irlyingl1 or Ilchanging stories.It The State then asked the expert whether, for example, the serious inconsistencies in Wuornos' statements about the Carskaddon murder indicated at least some deliberate untruthfulness. The expert said he could not answer the question and that Wuornos' actions mayo r may not be indicative of truthfulness, in light of her borderline personality disorder.
We find that the defense opened the door to this line of questioning by calling witnesses who testified essentially that Wuornos was not Illyingll ina subject ive sense because of borderline personality disorder. There was no error in the State ' s cross-examination. Moreover, the defense experts' vision of psychological science may include the fine distinction they drew, but. the law does not necessarily require the same li Indeed, a failure to rebut could justify the finder of fact in concluding that the State does not challenge the existence of the factor, provided the mitigating factor has not otherwise been controverted. Nibert. State, 574 So. 2d 1059 (Fla. 1990); Campbell v. State, 571 So. 2d 415 (Fla. 1990). Of course, the factor still can be deemed l'controverted''if there is any contrary or inconsistent evidence in the guilt or penalty phases, or if evidence of the factor is untrustworthy, improbable, or unbelievable. Walls.
conclusion. In gagging admissibility in this context, the trial court need be concerned only with the fact that inconsistent statements were made; it is for the finder of fact to determine what motivated the inconsistency.
To that end, qualified experts certainly should be permitted to testify on the question, but the finder of fact is not necessarily required to accept the testimony. As we stated in Walls, even uncontroverted opinion testimony can be rejected, and especially where it is hard to square with the other evidence at hand, as was the case here. Walls, 19 Fla. L. Weekly at S380 Next, Wuornos contends that the jury'srole was improperly diminished by jury instructions and prosecutorial comments. This issue was waived for lack of a proper objection and, even if not waived, would be merit less. Combs v. State, 525 So. 2d 853 (Fla.
1988); Grossman v. State, 525 So. 2d 833 (Fla. 19881, cert.
Wuornos also argues the State committed various forms of prosecutorial misconduct in the penalty phase. They are that the prosecutor: (a) improperly argued the presence of the pecuniary gain aggravator along with the aggravating factor of murder committed during a robbery; (b) misstated the burden of proof regarding heightened premeditation; (c) improperly argued lack of remorse; (d) improperly diminished the importance of non statutory aggravating factors, either factually or legally; (e) improperly argued sympathy should play no role in the jury's recommendation;
and (f) improperly equated mental mitigators with insanity. We find all of these claims to be poorly supported by the record and of minor consequence single or in their totality. Any error would be harmless and clearly was cured by the trial court's instructions to the jury.
Wuornos next contends that the trial court erred in not giving a variety of special instructions requested by the defense. All of these instructions went beyond the approved standard jury instructions, and there was no obligation for the judge to give any of them. See Walls.
As her sixth point, Wuornos argues that the trial court erred in imposing the death penalty based on allegedly invalid aggravators, and without considering valid mitigators. She urges, first, that there is no proof beyond a reasonable doubt that this murder was committed during a robbery. We find no error. One reasonable interpretation of the facts and testimony is that this murder was motivated by a desire to rob the victim of his car and other belongings. Wuornos' own testimony to the contrary reasonably could have been rejected as untrustworthy in light of her inconsistent statements.
Wuornos next contends that the evidence did not support the factor of witness elimination beyond a reasonable doubt. We disagree. In her initial confession to law officers, Wuornos stated that she killed to eliminate Mallory asa witness. At a minimum, this created a question for the finder of fact to resolve in light of Wuornos' later inconsistent statements.
Walls, 19 Fla. L. Weekly at, S378 - 8 0. The trial court resolved that question against Wuornos, and its decision to this effect is sufficiently supported by the record and cannot be set aside on appeal.
On a related point, Wuornos states that cold, calculated premeditation has not been proven beyond a reasonable doubt. For the reasons noted earlier in this opinion, we hold to the contrary. Cold, calculated premeditation was established beyond a reasonable doubt under any definition. Walls.
Next, Wuornos contends that this murder was not heinous, atrocious, or cruel beyond a reasonable doubt. Wuornos' initial confession to law officers detailed a sequence in wh.ich she first struggled with Mallory for no reason other than his refusal to remove his clothes. After winning the struggle, she pointed the he was going to rape gun at him and announced that she tlknewtl her. Despite Mallory's protestations that he had no intent to rape her, she shot him anyway. Mallory still was conscious and able to walk from the car. In spite of seeing this, Wuornos then ran around to where Mallory was standing, and shot him several more times.
We believe the protracted nature of this killing together with the mental suffering it necessarily would entail created a question for the finder of fact to resolve, especially in light of the similar crimes evidence. Walls, 19 Fla. L. Weekly at S378. That question has been resolved against Wuornos, and the resolution is sufficiently supported by the record.
AS to the mitigating evidence, we do agree that the trial court should have found and weighed Wuornos alcoholism and the large and largely uncontroverted body of evidence about the difficulties Wuornos faced asa child, as well as Wuornos suffering some degree of non statutory impaired capacity and mental disturbance at the time of the murder. All experts essentially agreed on these points, including the States.
However, we find no other mitigating factors that the trial court should have considered. In light of the entire record, the failure to find these non statutory factors in mitigation is harmless beyond a reasonable doubt, because their weight is slight when compared with the case for aggravation. Even had the error been corrected, there is no possibility of any other outcome.
Seventh, Wuornos argues that the trial court should have granted a motion for judgment of acquittal. As grounds, she alleges that her testimony at trial was uncontroverted and must be accepted as true. AS stated above, her testimony clearly was controverted by her own prior inconsistent statements, as supported by the similar crimes evidence and other evidence.
Accordingly, the finder of fact was entitled to reject her testimony as unbelievable. There was no error here.
In her eighth and final argument, Wuornos urges this Court to find Florida's death penalty statute unconstitutional on its face or as applied. The statute clearly is constitutional, Thompson v. State, 619 So. 2d 261 (Fla.), cert. denied, 114 S.
Ct. 445, 126 L. ED. 2d 378 (1993), and i.ts application to Wuornos comported with all constitutional requirements. This argument is without merit. Moreover, we have reviewed the entire record for other errors, including cumulative error. Finding none, we hold that the judgment and sentence are affirmed.
It is so ordered.
CRIMES, C. J., OVERTON, SHAW and HARDING, JJ., and McDONALD, Senior Justice, concur.
KOGAN, J., concurs specially with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
KOGAN, J., specially concurring.
The facts here present two quite different pictures of Aileen Wuornos. One of these pictures is of a woman who has lived a horrible life of victimization, violence, and little help from anyone, who later lashed out at one of her victimizers. The other is of a cold-blooded killer who lured men to their deaths to steal their property. Because there is sufficient evidence consistent with the latter view as to this murder, the jury and trial court below clearly were within their lawful discretion in recommending and imposing the death penalty here.
In too many ways our society has yet to confront a serious problem arising from women who are forced into prostitution at a young age. Such women typically enter into prostitution as the only possible means of escaping an abusive home environment. The tragic result is that early victimization leads to even greater victimization. And once the girl becomes an adult prostitute, she is labeled a criminal and often is forced into even more crime, as the only means of supporting herself. Few escape the vicious cycle. See Report of the Florida Sumerne Court Gender Bias Study Common, 42 Fla. L. Rev. 803, 892-908 (1990).
Aileen Wuornos obviously is an extreme case, but her general life history itself is not rare. I agree with the majority that the similar-crimes evidence was admissible because it supported the States theory of premeditation, and because it tended to refute Wuornos' claims relating to self-defense. There also is a question as to whether cold, calculated premeditation existed here. On this issue I believe that Wuornos' later statements to law officers and in-court testimony, viewed alone, established a color able claim of self-defense to the extent outlined in Cannadv
v. State, 427 So. 2d 723 (Fla. 1983). However, the believability of Wuornos statements is seriously under mined by her initial confession and other inconsistent statements. Moreover, even if cold, calculated premeditation were dis allowed, I do not believe the remaining case for aggravation could do anything but outweigh the case for mitigation here. Accordingly, I agree with the majority on this point.
Finally, some might characterized trials such as Wuornos as social awareness cases, because Wuornos herself unquestionably has been victimized throughout her life. I am aware that some sentiment has arisen to portray Wuornos in this light.
Nevertheless, Itsocialawarenesst1does not dispose of the strictly legal issues, beyond which this Court must be absolutely blind.
Whether Wuornos were male or female, the facts remain that the States theory of this case is sufficiently supported by the record. Therefore, the judgment and sentence must be sustained.
An Appeal from the Circuit Court in and for Volusia County, Uriel? Blount, Judge (Retired) - Case No. 9 1 - 0257 - CF - AES James B. Gibson, Public Defender and Christopher S. Quarles, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant Robert A. Butterworth, Attorney General and Margene. Roper.
Assistant Attorney General., Daytona Beach, Florida, for Appellee
FILED,) StD J. WHITE t '
IN THE SUPREME COURT OF FLORIDA SEP 2 I993
CLERK, SUPYECOURO
BY Chief Deputy Clerk Appellee.
APPEAL FROM THE CIRCUIT COURT
OF THE FIFTH JUDICIAL CIRCUIT
INITIAL BRIEF OF APPELLANT
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL CIRCUIT
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 0294632
CHIEF, CAPITAL APPEALS
112 Orange Avenue, Suite A Daytona Beach, Florida 32114
(904) 252-3367
COUNSEL FOR APPELLANT
TABLE OF CONTEN=
PAGE NO.
TABLE OF CONTENTS i TABLE OF CITATIONS iii
AILEEN WUORNOS' PLEAS ARE INVALID UNDER
THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTIONS 9,
16, 17 AND 22 OF THE CONSTITUTION OF THE
STATE OF FLORIDA.
FUNDAMENTAL ERROR OCCURRED WHERE THE
TRIAL COURT FAILED TO USA SPONTE ORDER A
HEARING TO DETERMINE APPELLANT'S MENTAL
CONDITION. THIS RESULTED INA VIOLATION
OF FLORIDA RULE OF CRIMINAL PROCEDURE
3.210 AND APPELLANT'S CONSTITUTIONAL
RIGHTS UNDER THE FIFTH, EIGHTH AND
FOURTEENTH AMENDMENTS.
THE INTRODUCTION OF IRRELEVANT,
COLLATERAL, AND PREJUDICIAL EVIDENCE
OVER DEFENSE OBJECTION TAINTED THE
JURY'S DEATH RECOMMENDATION.
THE STATES USE OF HEARSAY EVIDENCE
VIOLATED APPELLANT'S CONSTITUTIONAL
RIGHTS TO DUE PROCESS, CONFRONTATION AND
CROSS-EXAMINATION OF ADVERSE WITNESSES.
THE JURY'S DEATH VERDICT WAS TAINTED BY
EVIDENCE OF NONSTATUTORY AGGRAVATION IN
CONTRAVENTION OF THE EIGHTH AMENDMENT.
TABLE OF CONTENTS (Continued)
THE TRIAL COURT ERRED IN LIMITING
APPELLANT'S VOIR DIRE EXAMINATION DURING
JURY SELECTION, RESULTING INA DENIAL OF
DUE PROCESS AND THE RIGHT TO A FAIR
TRIAL
THE DEATH SENTENCES ARE NOT JUSTIFIED
WHERE THE TRIAL COURT BASED THE
SENTENCES ON INAPPROPRIATE AGGRAVATING
CIRCUMSTANCES AND, IN EFFECT, IGNORED
VALID MITIGATING CIRCUMSTANCES.
CONSTITUTIONALITY OF SECTION 921.141,
FLORIDA STATUTES.
TABLE OF CITATIONS
0 CASES CITED: PAGE NO.
Adamson v. Tickets Alford v. North Carolina Amoros v. State Antone v. State Atkins v. State Band v. State Barclav v. Florida Barnes v. State Batson v. Kentucky Beck v. Alabama Bertolotti v. State Bifulco v. United States Bolender v. State Booth v. Maryland Bouie v. State Brvan v. State iii TABfiE OF CITATIONS (Continued) @ Buenoano v. State 565 So.2d 309 (Fla. (1990) Burch v. Louisiana Burns v. State Caldwell v. Mississilmi California v. Brown Campbell v. State Cannadv v. State Caruthers v. State Castro v. State Clark. State Cochran v. State Coker v. Georgia Connors v. Inch Cross v. State Crurnr, v. state Dailev v. State Davis v. State TABLE OF CITATIONS (Continued) Davis v. State ex rel. Cromwell Delaa v. Dusser Dornau v. State Drorre v. Missouri Dunn v. United States Duskv v. United States Dvdek v. State Elledqe v. State Elledse v. State Enule v. State Espinosa v. Florida Fallada v. Duuuer Far v. State Floyd v. State Garza v. State Geralds v. State Gibbs v. State TABLE OF CITATIONS (Continued) @ William v. State Grossman v. State Hallman v. State Harqrave v. State Herring v. State Heurinq v. State Hildwin v. Florida Hodcres v. Florida In re Kemmler Jackson v. Oucrcrer James v. Sinqletary Jaramillo v. State Jenninqs v. State Johnson v. Louisiana Jones v. State Keene v. State ' Kelley v. Kelley TAB 75 So.2d 191 (Fla. 1954) Lawrence v. State &E OF CITATIONS 1Continued) Lewis v. State Los v. State Louisiana ex rel. Frances v. Resweber Lowenfield v. Phelw Mann v. State Maynard v. Cartwricrht McKinnev v. State McMillan v. Escambia Countv, Florida modified 688 F.2d 960 (5th Cir. (1982) Moody v. State Nibert v. State Parks v. Brown Pate v. Robinson Peede v. State vii * Perry v. State TABLE OF CITATIONS (Continued) Peterson v. Paoli Porter. State Pridsen v. State Proffitt v. Florida Raulerson v. State Raulerson v. State Rembert v. State Riley v. State men tson v. State Rocrers v. Lodcre Rocrers v. State Ross. State Rutherford v. State Waffle v. Parks Schaefer v. State Scull v. State a viii TABfiE OF Cation8 (ContrieuedL (I) Shell v. Mississippi/ Simmons v. State Simmons v. State Smaller v. State Smith v. State State. Dixon State. Kendrick State. Lee State. Lvles State. Neil State. Sovino Straight v. State Swafford v. State Swain v. Alabama Tedder v. State Teffeteller v. State Thornburs v. Ginales TABLE OF CITATIONS (Continued) Tiller v. Essosito Turner v. Murray Watson v. State Watson v. Stone White v. Reuester White v. State Wilkerson v. Utah Williams v. State Williams v. State Williams v. State Wuornos v. State Yick Wo v. Hopkins Youns v. Zant OTHER AUTHORITIES CITED:
Amendment V, United States Constitution 22, 32, 38, 41, 46,
Amendment VI, United States Constitution 22, 38, 41, 46, 55,
Amendment VIII, United States Constitution 22, 32, 38, 41,
Amendment XIV, United States Constitution 22, 32, 38, 41, 46,
Amendment XV, United States Constitution 8 7, 88 Article Section 1, Florida Constitution a7 Article Section 2, Florida Constitution 41, a7
Article Section 9, Florida Constitution 22, 38, 41, 46,
Article I, Section 16, Florida Constitution 22, 38, 41, 46,
Article I, Section 17, Florida Constitution 22, 38, 41, 46, 49,
Chapter 42, United States Code, Section 1973 8 8, 90 Chapter 26, Florida Statutes (1970) aa TABLE OF CITATIONS (Continued) Bernard, Death Penalty [ 1988 Survey of Florida JIawl, County and Citv Data Book, 1988, United States Department of Gardner, Executions and Indimities -- An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, Gross and Maury, Patterns of Death: AN Anal sis of Racial Disparities in Carrital Sentencing and Homicide Victimization, Kennedy, Florida's #!Cold, Calculated, and Premeditated" Assravatins Circumstance in Death Penalty Cases, Mello, Florida's IIHeinous, Atrocious or Cruel" Assravntinq Circumstance: Narrowina the Class of' Death-Eligible Cases Without Radelet and Mello, Executincr Those Who Kill Blacks: An Unusual Young, Sincsle Member Judicial Districts, Fair or Foul, Florida xii
IN THE SUPREME COURT OF FLORIDA
Appellant,)
STATE OF FLORIDA,)
Appellee.
INITIAL BRIEF OF APPELLANT
PRELIMINARY STATEMENT
Appellant, Aileen Carol Wuornos, was the Defendant in the lower court and will be referred to in this case as Appellant or by her proper name. Appellee, the State of Florida, was the prosecuting authority.
The record on appeal will be referred to using the following symbols:
rrRrr -- Volume I through V, consisting of the pleadings (Rl-488); the evidence
(R489-652); the transcript of the hearing held on May 31, 1992, when Appellant pled to the outstanding charges (R653 - 747); and the May 15, 1992, sentencing hearing (R747-87).
ttT1l -- Volume VI through X, which contain the May, 1992, penalty phase, jury trial (Tl-906).
STATEMENT OF THE CASE
On February 20, 1991, the State of Florida indicted Aileen Carol Wuornos, the Appellant, for the September 9, 1990, first degree murders' and armed robberies2 of Charles Humphreys and Troy Burress. (Rl-2,142-43) On February 22, 1991, the State indicted Appellant for the Citrus County first-degree murder and armed robbery of David Spears. (R314-15) On March 26, 1992, the previously appointed Office of the Public Defender, Fifth Judicial Circuit, moved to withdraw as counsel. (R247) Private counsel filed a notice of appearance, and the trial court granted the Public Defenders motion to withdraw. (R248-49,655-59) On March 31, 1992, with her new lawyer at her side, Wuornos waived all of her rights and tendered nolo contendere pleas to all three murder charges and all three armed robbery charges. (R655-746) She completed and signed a waiver of rights and plea sheet. (R250-51) Following a plea colloquy, the Honorable Thomas D. Sawaya accepted the pleas and found Appellant's action intelligent and voluntary. (R740-41) The court also determined that a factual basis existed for the pleas. (R742) Since Wuornos received no promises or benefits in exchange for her pleas, the court concluded that Wuornos believed the pleas were in her best interest. (R742) The judge adjudicated Appellant guilty of each S 782.04(1)(a)l, Fla. Stat.
S 812.13(2)(a), Fla. Stat.
and every offense. (R127-28,294-95,466-67,741) On May 4, 1992, Wuornos waived her presence at the penalty phase which began that day. (Tl-91) After jury selection, the State presented seven witnesses. (T527-645) During the testimony of David Taylor, the trial court overruled Appellant's objection. (T532) During the States examination of David Strickland, Appellant's objection was also overruled. (T574) Similarly, the trial court overruled another objection inter posed by the Appellant during the testimony of Lawrence Horzepa.
(T625) After the State rested (T645), Appellant introduced into evidence and published a videotape of the confession she made to police following her arrest. (T645-58; R550-652) The only other evidence presented by the Appellant at the penalty phase was the testimony of Arlene Pralle, Appellant's adoptive mother. (T659- 708) Over Appellant's objections (T766-72,776,791,799,804), the State presented five witnesses in rebuttal (T772 - 810), and Appellant presented more testimony from Arlene Pralle in surrebuttal. (T813-20) The State also introduced the notice of appeal filed by Appellant in her Volusia County case in which she had previously been sentenced to death. (T810-11) The trial court denied Appellant's request that the jury be instructed that the Volusia County convictions and death sentence are presumed to be correct on appeal. (T740-43) Over Appellant's objection, the court instructed the jury on witness elimination as an aggravating circumstance3. (T688-93, 712-18,731-40,756-57) Appellant also objected to the applicability of the pecuniary gain factor4 as well as the "heightened premeditationtt5 circumstance. (T744-55) Appellant also objected to the HAC6 instruction that applied only to Humphreys' murder. (T755-64) The trial court overruled Appellant's objections to the instructions and read them to the jury. (T812-13,881-84) Following deliberations, the jury returned with recommendations in each case (10-2) that Aileen Wuornos be sentenced to die in Florida's electric chair. (T900-901) On May 15, 1992, Wuornos was present when the trial court followed the jury's recommendations and sentenced her to the ultimate sanction on each of the three murders. (R747-87) The trial court entered written findings of fact in support of each death sentence.
(R300-309,456-65; SRl-10) The court found four aggravating circumstances in support of the death sentences imposed for the The capital felony was committed for the purpose of avoiding or preventing a lawful arrest...§ 921.141(5)(e).
The capital felony was committed for pecuniary gain. S 921.141(5) (f), Fla. Stat.
The capital felony was a homicide and was committed ina cold, calculated and premeditated manner without any pretense of moral or legal justification. § 921.141(5)(i), Fla. Stat.
The capital felony was especially heinous, atrocious or cruel. 5 921.141(5) (h), Fla. Stat.
murders of Troy Burress and David Spears.7 (R300-304,456-60) In imposing the death sentence for the murder of Charles Humphreys, the court found the same four aggravating circumstances applicable and one additional aggravating factor.8 (SR1-6) The trial court rejected all of the statutory mitigating circumstances. (R305-7,461-63; SR6-8) The court concluded that the evidence established, at best, only two non statutory mitigating circumstances that deserved only slight weight.'
(R307-8,463-65; SR9-10) The trial court concluded that the aggravating circumstances outweighed the mitigating factors and imposed the death penalty on all three murders. This Court has The court found: (1) Prior violent felony conviction;
(2) pecuniary gain; (3) witness elimination; (4) heightened premeditation.
The murder of Charles Humphreys was especially heinous, atrocious or cruel.
' Appellant presented evidence of remorse, a religious conversion, and a abusive, deprived childhood.
lo Art. V, 3 (b) (1), Fla. Const.
STATEMENT OF THE FACTS
The Death of Charles HumDhreys Charles Humphreys' family reported him missing on September 11th. (T531-32) On September 12, 1990, two young boys riding bicycles in southwest Marion County discovered the clothed body of Charles Humphreys. (T527-30) Police responded to the area, an isolated, undeveloped sub division on the north side of County Road 484. (T527-30) Humphreys' pockets were turned inside out.
(T534-35) His wallet and car were missing. (T535) Authorities later located Humphreys' wallet and other identification fifty miles away ina remote area in Lake County, just north of the Polk County line near Highway 27. (T536-539) Police also collected a spent.22 casing at that scene. (T537-38) On September 25th, authorities found Humphreys' car with the license plate removed, parked behind an abandoned gas station on U. S. 90 An autopsy indicated that Humphreys died asa result of seven gunshot wounds. (T582-84) None of the wounds were instantly fatal, but one to the back of the head would have incapacitated Humphreys quickly. (T588-89) The various locations of the bullet wounds (one in the chest, one in the abdomen, two in the back, one in the back of the head, and two in his arm) were consistent with someone twist ing and turning while either standing or lying on the ground. (T589-90) Humphreys also suffered some minor bruises and scraps near the time of his death. (T591-93) The bruises on Humphreys' arm could have been inflicted as much as forty-eight hours prior to his death.
The Death of Trove Burress Troy Burress, an employee of Gilchrist Sausage Company, was last seen alive when he was driving his delivery route on July 30, 1990. Burress was reported missing the next day. (T545-46) Burress' scheduled delivery route took him through Daytona Beach and several other small communities in central Florida. He was last seen around 2: Loop.m. making a delivery at a small grocery store in Seville. (T546) Burress failed to appear at his next scheduled stop in Salt Springs. Prior to his disappearance, Burress had collected approximately $200.00 in cash from customers along his route. (T547) Police found Burress' truck at approximately 3: OO a.m. on July 31st at the intersection of State Roads 40 and 19. (T548) The keys were missing and the primary gas tank was empty. (T549) Burress' receipt were also missing. (T549) On August 4th, police found Burress' clothed body ina remote wooded area near a small dirt road off of State Road 19 approximately eight miles north of his trucks location. (T549- 50,552) Burress had been dead approximately four to five days.
(T550) Some palm fronds had been placed on and around the body.
(T551) A search of the area turned up Burress' wallet, credit cards and receipt. The cash was missing. (T553-54) Burress died from two gunshot wounds, one in the middle of his chest and the second near the middle of his back. (T554-55) Police sent the.22 projectiles recovered from Burress' body to FDLE in ~o Tallahassee. (T555-57) The Death of David SDears In June, 1990, police found the decomposed body of David Spears ina remote, wooded area in southwest Citrus County just north of the Fernando County line near Highway 19. (T564-68) A co-worker at Universal Concrete Company in Sarasota was the last person to see Spears alive on May 19th. Spears was heading back to Ocoee, Florida in Orange County. (T569) Despite the advanced decomposition of the body, Dr. Maples, a forensic anthropologist, concluded that Spears died asa result of six gunshot wounds, two of which were possibly through the back. (T569-70) Other than a hat, Spears' body was nude when found. (T570-71) Although Spears had been paid on the day of his disappearance, authorities did not recovery any personal property whatsoever. (T571) Spears' 1983 Dodge pickup was discovered parked near the entrance ramp to 1-75 and County Road 318 in Marion County. A tool box, clothing, a ceramic panther, the tag, and the keys were missing from the truck. (T571-72) The truck had a flat tire when found. (T572) Within a few feet of Spears' body, police found a used condoms and one Trojan brand wrapper. An autopsy indicated that David Spears died from multiple (at least six) gunshot wounds.
(T595-96) One and possibly two of the shots were to the back.
(T573) There was no way to determine whether the shots to the back were the first inflicted. (T573-74) Wuornos' Arrest On December 4, 1989, police found Richard Mallory's car parked off a fire trail in Ormond Beach, Volusia County, Florida.
(T599-601) Mallory's car was locked and police could not find the ignition keys. Police found some of Mallory's personal property, including his wallet and driver's license, ina small sand depression about thirty feet behind his car. (T608) Police concluded that Mallory's car had been wiped down. (T608) On December 13, 1989, police discovered Richard Mallory's body ina wooded area off of U.S. 1 near 1-95, approximately five miles from his car. (T601) When found, Mallory's body was covered with carpet and other debris in an apparent attempt to hide the body. (T602) Mallory's body was clothed and already somewhat decomposed. (T602-3) Mallory's front, pants' pockets were turned out slightly. (T604) Police arrested Aileen Wuornos in January, 1991. (T608-9) A search of a storage unit rented by Wuornos using an alias, turned up a camera and property belonging to Richard Mallory and the other men. (T609-11) Police later recovered Wuornos' corroded gun from Rose Bay, a body of blackish Walter located approximately 150 yards from the motel where Wuornos had been living. (T611-13,615) The defense stipulated that the projectiles recovered from the bodies of Humphreys, Spears, Burress, and Mallory were fired from Appellant's gun that was recovered from Rose Bay. (T629) Initially, police believed that two women may have been involved in the killings. Wuornos voluntarily confessed to police that she alone was responsible for the men's deaths.
(T616-17) In taking sole responsibility, Wuornos cleared Tyria Moore, her lesbian lover. (T617) Although Wuornos implicated herself ina total of seven deaths, she repeatedly told police that she acted in self-defense. (T613,617-18) Wuornos' Confession Authorities videotaped the entire statement that Wuornos provided on January 16th. (T616) Wuornos explained that she plied her trade asa hitchhiking prostitute for approximately eight years. (T618) Prior to questioning, authorities arranged fora lawyer from the Public Defenders Office to consult with Wuornos. While waiting for the lawyer to arrive, Ms. Wuornos ignored Investigator Horzepa's warnings and voluntarily talked about the killings before being questioned. In that preamble, Wuornos told the detectives that she acted in self-defense.
After confer ring with her lawyer, Wuornos con sented to questioning and maintained that she acted in self-defense.
(T618-2 0)
Wuornos admitted that she had a problem with alcohol and was usually drunk on the days of the killings. (T620-21) Police found numerous beer cans near the spot where Richard Mallory's body was found." Investigator Horzepa primarily discussed the Richard Mallory case with Wuornos during the interview. (T622) The area was used asa dump site and police could not determine who left the beer cans at the scene.
Wuornos told Horzepa that she and Mallory had been arguing and fighting. (T622) The shooting was precipitated by Mallory Itcoming at her." (T622) Ms. Wuornos expressed remorse and told Horzepa that she deserved the death penalty. (T623) Police never located a seventh body12 connected to Ms.
Wuornos. (T558) Shortly before her trial, Ms. Wuornos cooperate with Marion County law enforcement and volunteered to show police on a map where they might find the seventh body.
(T558-59) Ms. Wuornos told police that the body might be in South Carolina and offered to drive them to it. (T559) Investigator Tilley told Ms. Wuornos that Florida authorities could not offer her any type of deal or promise her anything if the crime occurred outside the jurisdiction of Florida. (T559) Despite the potential for another murder charge, Ms. Wuornos persisted in her offer to aid police in locating the seventh body. (T560) Ms. Wuornos had previously rebuffed Investigator Tilley's attempts to enlist her aid in this regard only a week before. (T561) In an attempt to gain her cooperation, Investigator Tilley spoke with Wuornos' lawyer and her adoptive mother. (T561-62) Tilley lsd arranged for Wuornos' special treatment at the Marion County Jail, i.e., providing her reading material, access to the telephone, and a cup of coffee. (T562) Mitisatins Evidence Wuornos' mother abandoned Lee13 and her slightly older l2 The missing body was that of Peter Siems. (T561) l3 Aileen Wuornos' nickname is Lee. (R660) brother, Keith, when Lee was only six months old. (T666) The grandparents found both children in the attic covered with faces and flies. (T666) The grandparents adopted Lee and Keith.
(T666) Although their grandmother wanted to care for the children, the grandfather was an alcoholic who resented and abused them. (T666-7) When drunk, the grandfather would accused Lee of imagined transgressions. These situations usually resulted in severe beatings. (T667) Let's grandfather resented the financial burden of raising Lee and her brother Keith. Lee reminded the grandfather of Diane, Lee and Keith's biological mother and the grandfather's daughter. Since Diane had abandoned her family, the grandfather focused his wrath on Lee. The grandfather clearly favored his biological children, Barry and Lori. (T669-70) When Lee was seven, she failed to eat her baked potato at dinner one night. When her grandfather later found the potato in the garbage, he forced Lee to eat it, even though it was covered with garbage. Be then took Lee into the bathroom, stripped her from the waist down, and beat her witha belt so severely that she was unable to attend school the next day. (T668) At the age of thirteen, Lee was raped, impregnated, and forced to live at a home for unwed mothers. The baby was put up for adoption and, at the grandmother's insistence, the grandfather reluctantly allowed Lee to return home. Lee ran away from home when the abuse continued. Her grandmother died shortly thereafter and her grandfather placed her ina juvenile home.
(T670) Lee was very close to her brother Keith. When Keith died of cancer at age twenty-one, Lee was shattered. (T673) By age fourteen, Lee was deeply involved in substance abuse.
(T671) At the age of fifteen, Lee was homeless and lived in the woods. She lived in abandoned cars and took showers at friends' houses. She was able to stay in school for almost a year, but eventually had to drop out. (T670-71) When she was sixteen, Lee swore off drugs for good. (T671) The only substance that she abused from that point forward was alcohol, primarily beer.
(T671) Wuornos was probably an alcoholic for most of her life.
(T671-72)
Lee began prostituting her body by the age of sixteen.
(T671) During her career asa prostitute, Wuornos was attacked many times by her clients. On three occasions, she attempted to fend off her attacker using mace. All three times, the men used the mace on Wuornos, raped her, and left her in the woods for dead. (T672) Once, Wuornos was actually gang-raped. (T672) After her arrest, Lee studied theology and psychology and took many self-help courses. (T673-74) Although she never took lessons, Lee became quite an artist. (T674) She also wrote poetry. (T674) Although Lee finally found Jesus Christ, she is still no angel.
Arlene Pralle followed Let's plight in the media. Through divine intervention, Pralle wrote Lee following her arrest.
Pralle and her husband developed a relationship with Lee that became closer every day. (T682-83) Eventually, the Pralle's adopted Lee. Pralle found Lee a loving, caring, and very sensitive human being. (T705-6) Pralle accepted the fact that Wuornos killed the men, but under extenuating circumstances.
(T706) Pralle admitted that, asa Christian, she was steadfastly opposed to the death penalty in all cases. (T706) Pralle also admitted that she had attained a certain amount of notoriety asa result of her relationship with Lee Wuornos. (T706-7) She had appeared on several television shows and was paid only for one interview in the amount of $7,500.00. (T707) Arlene Pralle had observed great changes in Lee since their first meeting. If Ms. Pralle had approached Lee a year before the trial and requested her aid in locating Siems' body, Lee would have cursed her and refused. (T674-75) Right before trial, Lee voluntarily offered to show Officer Tilley where to find Siems' body. Since she was unsure of Tilley's credentials, Pralle expressed her concern. Lee reassured Pralle saying:
Arlene, he has an honest face. I want to help the Siems family. John, you go out and get the map and 1/11 do as best I can to show you where the body was.
(T675-76)
Pralle also noted Let's willingness to listen to criticism without losing her temper as she had in the past. Pralle perceived a significant change in Let's attitude ina few short months. (T676-77) Pralle noticed that Lee had become verbally and physically aggressive less often. Additionally, Pralle noticed that it took much more to provoke Lee. (T697-98) Pralle saw "great growthffin Lee. (T677) Wuornos took total responsibility for her actions. Lee told Pralle that she could not handle the guilt anymore. She had frequent nightmares.
(T677) During almost every jail visit, Lee would cry and say:
I don't know how I can go on like this.
I am so sorry for what I have done. I hate myself.
(T678) Lee asked Pralle how she could love her after what she had done. Pralle reassured Lee that Jesus had forgiven her, but Lee could not forgive herself. (T678) Pralle explained that she and her husband planned to seek professional, Christian counseling for Lee, if she received a life sentence. Lee was receptive to this idea, as was the prison. (T685) Mental health experts called Wuornos a reactor, that is she responded well to positive stimuli, but if someone provoked her, she attacked. (T679) Arlene Pralle had observed a gradual deterioration and depression of Wuornos after her incarceration.
The reality of the situation was finally beginning to dawn on Lee. She realized that she would never be able to take a walk on the beach again or be able to drive a car. But Pralle also observed Let's spiritual growth. Although extremely depressed about her predicament, Lee was also excited about her spiritual rebirth. Realizing that Jesus had forgiven her, Lee thought that, in time, she might be able to forgive herself. (T684) Pralle discussed Let's early years with Dawn Neiman, Let's childhood friend. (T693-94) Dawn would frequently accompany Lee, Let's brother Keith, and Let's aunt/sister, Lori Grody home from school. Let's grandfather was usually drunk when they arrived. He treated Lori with exceptional favor and cursed Lee.
If Lee did not immediately comply with his orders, the grandfather ordered Lee to her room where he beat her witha belt. Dawn usually left before the actual beating but saw the marks the next day at school. (T694) Pralle admitted that, at Wuornos' prior, Volusia County, trial, she heard Barry Wuornos, Let's uncle/brother, deny that Lee was abused asa child. Pralle pointed out that Barry was serving in the military during much of Let's formative years. Additionally, Pralle had some indication that Barry had lied under oath. (T695-96) States Rebuttal The State presented six witnesses in rebuttal. (T772-806) On November 4, 1990, Wuornos approached Bobby Lee Cops, a truck driver, at a truck stop in Haynes City. (T772-74) Wuornos explained that she was having car trouble. She needed to get to Daytona Beach to pick up her two children from a day-care center before 6: OO p.m. (T774) When Cops explained he was only going as far as Orlando, Wuornos suggested that her sister could meet her in Orlando to drive her the rest of the way. Cops agreed to give her a lift. (T775) After Wuornos got in Cops' car, he immediately drove to a bank where he cashed a $2,000.00 check at a drive-through window. (T775) Cops then took State Road 27 north. (T775) Shortly after they began their journey, Wuornos proposed sex in exchange for Mooney. (T775-76) After Cops rejected her offer, he glimpse a pistol, when she opened her purse to retrieve a comb. (T776-77) Wuornos aggressively repeated her proposition and Cops became concerned. (T777-78) He decided to extricate himself from the developing situation, but was concerned for his safety. He offered to take Wuornos all the way to Daytona Beach and pulled into a gas station so that she could call her sister. He handed her a five-dollar bill to make the call and, when she got out of the car, he locked his doors and quickly drove away. (T778) As he drove away, Wuornos attempted to open her purse. She cursed Cops and threatened to kill him. (T779) Following her arrest several months later, Cops recognized Wuornos from her photograph in the newspaper.
(T779-80)
Marvin Padgett, a homicide investigator with the Citrus County Sheriff's Department, investigated Wuornos' background, particularly her childhood. (T784-85) Padgett interviewed relatives and associates of Wuornos in Michigan and Texas.
(T785) Padgett also interviewed Barry Wuornos, Let's uncle/brother. (T785) Barry left the Wuornos household in 1967, when Lee was approximately ten years old. (T785-86) Barry claimed that there was never any physical abuse directed at Lee or any other children in the home. (T786) Lori Grody, Let's aunt/sister, supported Barry's claims. (T786) Padgett found only one I1friendl1of Let's, Dawn Neiman. (T790) According to Padgett, Neiman had no reason to suspect any physical abuse of Lee during her formative years. (T786-8)14 Neiman never claimed l4 On cross-examination, Padgett did not recall specifically if Dawn Neiman Itspecificallyl1called Barry or Lori attliar, l lor "if she did1 exactly what she would have been talking about.
that Lee Wuornos had a particularly satisfying and nurturing upbringing. (T788) Padgett's investigation turned up other names of potential interviewees whom he was unable to locate.
(T789-90)
On March 30, 1992, Lieutenant Paul Laxton of the Marion County Sheriff's Department, was transport ing Lee Wuornos from Broward Correctional Institution to Marion County for her court proceeding. (T792) Wuornos talked for much of the four and one half hour drive. She threatened to kill Lieutenant Laxton "if it took her ten years to do so.gg (T793) She talked of shooting the lieutenant in the back of his head and, ggcuttingoff [his] dick and sticking it in [his] mouth.vf (T793)" Wuornos claimed to have previously thrashed a man the same size as Lieutenant Laxton. (T793) Wuornos also expressed her desire to start a revolution during which society would Ifturnagainst police officers... [and] shoot police officers between the eyes and...the
(T794) Wuornos told Lieutenant Laxton that her verbal attacks had been provoked by his harassment of her during the trip, namely his failure to con verse. (T794) Laxton admitted that other defendants had also threatened him in the past. (T795) He was of the opinion that Wuornos had no ability to carry out the threats when she made them. (T795-96) He was not intimidated by (T788) The State offered this evidence apparently to Ilrebutll evidence that, since her incarceration. Wuornos had undercrone a spiritual rebirth and become a Christian. (T678-82) her statements. (T796) After Wuornos entered her pleas to the three murders, she was calm and subdued during three subsequent trips with Laxton. (T794-98) Corporal Ora Berry of the Marion County Sheriff's Department accompanied Laxton on the March 30th transport of Wuornos from CBI to the Marion County Jail. (T798-99) Wuornos warned Berry at the beginning of the trip that she "wasn't going to take any of [ his ] shit." (T799) When Berry was removing her restraints at the Marion County Jail at the conclusion of the transport, Wuornos called Berry a @@bitch1 who didn't care about anybody but himself. She warned Berry that she would never forget his face.
(T800) Berry believed that an incident near the end of the trip had angered Wuornos resulting ina change in attitude toward him.
At a refueling stop, Wuornos asked fora soft drink. When Berry returned and explained that the gas station had no cold drinks, Wuornos reportedly became enraged. (T800) Corporal Berry had also noticed a change in Wuornos' attitude after she entered her pleas. (T801-2) On subsequent trips, she was docile and compliant.
During a prison interview at the time of her 1982 incarceration, Wuornos told prison officials that she had found religion and, with the help of God, intended to turn her life around and become a better person. (T804) Assellant's Surrebuttal In surrebuttal, Arlene Pralle read a letter from Dawn Neiman. Although Investigator Padgett claimed that Dawn reported no evidence of abuse in Let's childhood, Dawn's letter to Arlene a painted quite a different picture.
...Her life has been one tragedy after another. All she ever wanted was to be loved and to be at peace and to not have anyone that Barry Wuornos, her family member, lied and Lori that they can't get away with treating her like this and lying.
I have excused some of the ways that they treated her when she was growing up...I don't think it's fair they got the last word, (T816-17) Although Dawn's letter failed to expressly mention it, Pralle explained that she and Dawn had discussed by phone on many occasions the grandfather's abuse of Lee. (T818-20)
SUMMARY OF THE ARGUMENT
Wuornos contends that her pleas were improperly accepted, where the trial court never explained to Wuornos that she had an absolute right to be tried in absentia. The trial court also failed to inform Wuornos of the minimum sentence. Additionally, Wuornos never admitted her guilt nor acknowledged that the plea was in her best interest. Furthermore, certain statements made by Wuornos should have alerted the trial court that sufficient grounds existed to order a competency hearing.
Wuornos also contends that the trial court inappropriately restricted defense counsel's scope of voir dire during jury selection. The jury's death recommendation was tainted by the improper admission of incompetent and prejudicial rebuttal testimony. The testimony was a general character attack which rebutted nothing offered in mitigation. The jury's verdict was also tainted by: (1) hearsay evidence that was not fairly rebut table; (2) non statutory aggravating evidence relating to the personal characteristics of one of the victims; and (3) the pending appeal of Wuornos' Volusia County death sentence.
The evidence did not support the trial court's factual findings regarding the aggravating circumstances, and the trial court failed to consider or give weight to unrebutted mitigating evidence. The court also erred by instructing the jury on inapplicable and vague aggravating circumstances. Additionally, Section 921.141, Florida Statutes is unconstitutional.
ARGUMENT
Aileen Wuornos discusses below the reasons which, she respectfully submits, compel the reversal of her convictions and death sentences. Each issue is predicated on the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I of the Florida Constitution, and such other authorities as is set forth.
POINT I
AILEEN WUORNOS' PLEAS ARE INVALID UNDER
THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTIONS 9,
16, 17 AND 22 OF THE CONSTITUTION OF THE
STATE OF FLORIDA.
The record conclusively shows that, asa matter of state and federal constitutional law, Wuornos' pleas of nolo contendere are invalid. Wuornos' guilt of the substantive crimes has not been adequately established where she unequivocally stated that she was not guilty and was entering the pleas based on her belief that, otherwise, she would have to sit through an unfair trial.
Additionally, the trial court failed to comply with Florida Rule of Criminal Procedure 3.172. Specifically, the record fails to reflect a sufficient factual basis. No one told Wuornos she had the right to be tried in absentia or the minimum mandatory sentence. Wuornos never acknowledged her guilt or explained how the pleas were in her best interest. The totality of the circumstances reflects that Appellant's pleas were involuntary.
THE PLEAS WERE NOT INTELLIGENT OR VOLUNTARY
Aileen Wuornos' primary motivation in pleading nolo contendere to all outstanding charges was her dread of having to participate in another blatantly unfair trial. (R682) Wuornos made this abundantly clear at every opportunity. The trial court conducted a thorough and extensive plea colloquy. (R653-746) The trial court explained the right to a jury trial, the right to put the State to their burden of proof, the right to confront witnesses, the right to present witnesses, etc. Unfortunately, the trial court failed to explain the right most important to Aileen Wuornos, i.e., her right to waive her presence at trial.
This Court first addressed the issue of whether a defendant can voluntarily waive his presence at a capital trial in Peede v.
State, 474 So.2d 808 (Fla. 1985). This Court stated without equivocation:
We now hold that just as in non capital cases, the presence requirement is for the defendant's protection and, just as he can knowingly and voluntarily waive any other constitutional right, a defendant can waive his right to be present at stages of his capital trial if he personally chooses to voluntarily absent himself.
In this case, the trial court took every precautions to ensure that Peede's waiver was knowing and voluntary and not due to illness or coercion of any nature. It carefully instructed the jury as to Peede's absence so as to avoid any prejudice to Peede for his having made the voluntary decision to absent himself from the courtroom. We find that the trial court did not exceed its authority or abuse its discretion.
Peede, 474 So.2d at 814-15.
At the first opportunity, Wuornos explained why she was waiving her right to trial and pleading nolo contendere.
The way I saw the law enforcement work and the system work, I am not very happy with it at all. I am not going to get a fair trial and I am not -- I just don't want to 40 through anymore trials. (R682)...Just hope I get sent back because Marion County has been doing a lot of abusing me at the County Jail, and I just want to get back to death row. (R711) I will seek to be electrocuted as soon as possible. There's no sense in me suffering for something that I shouldn't suffer for. I hope -- I hope I get the electric chair as soon as possible.
I want to get off this crooked, evil planet.
(R735) I'd rather find new evidence somewhere down the road and have a new -- totally new trial for all this stuff -- even Volusia and everything. (R737) Immediately prior to the commencement of jury selection, Wuornos appeared in order waive her presence at the penalty phase. (Tl-90) Initially, the trial court agreed that Wuornos could absent herself from the proceedings but wanted her to remain housed at the Marion County Jail. When Wuornos heard that she might have to spend several days in the county jail, she reiterated her desire to return to Broward Correctional Institute. (T9-10) In the event that you need to consult with your attorney, or in the event that your attorney needs to consult with you, you'll be here in Marion County, and that procedure will be available to Mr. Glazer and it will be available to you.
And regardless of whether you like it or not, you've got certain rights that are going to be protected. And those are one of those rights that I think need to be protected, regardless of whether you want to be sent back or not.
Also I am also concerned about making sure that this is done properly and the record is preserved.
And, Ms. Wuornos, if you want to absent yourself, I'm going to let you do it. And I want you -- THE DEFENDANT: Do you want to pay fora whole trial? Do want to pay a half -- a -- million dollars fora trial? I might as well go through the whole trial then.
THE COURT: If you want to absent yourself you can.
THE DEFENDANT: All I want to do is go back to the prison and get out of this damn courtroom.
(T10-11) Wuornos and her defense counsel both complained bitterly about the judge's announced intention to keep Wuornos housed in the county jail during the penalty phase trial. (T11- THE DEFENDANT: I flatly don't want to be here.
MR. GLAZER: She doesn't want to be here.
THE DEFENDANT: I want to be back at the prison.
I don't care what the sentence is. I'm already on save taxpayers Mooney. You people don't care. You want to press on with the jury and everything else and try to impress the public.
(T13-14)
...You want to just put me through living hell at the Marion County Jail when I just want to go...
(T17) When it became clear that the trial court would force determine guilt or innocence.
MR. GLAZER: Yes, Your Honor. But at this point Ms. Wuornos would like to say she wants to go to trial now.
THE DEFENDANT: Take it to trial.
MR. GLAZER: Which means that we have to withdraw our plea.
Your Honor, is there any way that I can -- she can go to Broward and I can call down there every morning?
THE COURT: Well, if she's going to use the withdrawals of her no contest plea asa threat to try and threaten me to get her to go -- force her to go back to Broward, it's not going to work.
(T20-21) After discussion among the lawyers and the trial court, everyone seemed satisfied that Wuornos could be returned to Broward Correctional Institute and her attorney could communicate with her on a daily basis, so that she could reiterate her waiver of presence for trial. (T27-36) After Wuornos read a portion of a statement into the record (T36-87), the trial court excused her from further participation in the trial and she was returned to Broward Correctional Institute.
(T87-90) The trial then proceeded in her absence.
It is abundantly clear from the record that Appellant's prime motivation in pleading was her desire to leave Marion County and return to her prison in cell on death row. Above all, Wuornos did not want to sit through another trial. She did not have to. Unfortunately, no one, neither the trial court nor defense counsel informed her that she had a right to be tried in absentia. Asa result, Wuornos did not have sufficient information to intelligently enter her pleas. Therefore, her pleas were not voluntary, since she was never informed of, in this case, essential right.
Appellant's situation can be analogized to a trial judge failing to determine that a defendant understands the maximum possible penalty for the offense. In that situation, the defendant's plea is involuntary. See, e.q., Garza v. State, 519 So.2d 727 (Fla. 2d DCA 1988). The court and the State tried to be thorough in advising Wuornos of all conceivable rights that she was waiving in pleading. At the prosecutors suggestion, the trial court explained that Appellant could face deportation asa result of her pleas if she were not an American citizen. (R713- 16) The court also explained thatherpleas would result in convictions that could be used as aggravating factors in subsequent capital prosecutions. (R713-17) But no one informed Wuornos of the right most important to her in this case, i.e., her right to be tried in absentia. If anyone had explained this critical right to Wuornos, it is highly unlikely that she would have entered her pleas. It is therefore abundantly clear that Appellant's pleas were involuntary. The convictions and sentences must be vacated.
FAILURE TO INFORM WUORNOS OF THE MANDATORY MINIMUM SENTENCE
While there is no question that the trial court repeatedly warned Wuornos that she could be sentenced to death on the murders, no one ever informed Wuornos that, at the very minimum, she would be required to serve at least 25 years before she was eligible for parole.I6 On a couple of occasions, the trial court told Wuornos that there were only two possible sentences, death or life imprisonment. (R660,686) The trial court did explain the minimum sentence (three years) that could be imposed on the armed robbery counts. However, the court mistakenly thought that he had already informed Wuornos of the minimum sentence for first-degree murder. (R684-85) Since the trial court omitted a critical piece of information in the plea colloquy, Wuornos' pleas were uninformed and therefore not intelligently entered. Simmons v. State, 489 So.2d 43 (Fla. 4th DCA 1986). The pleas were therefore involuntary for the same reasons argued in the prior section.
Florida Rule of Criminal Procedure 3.172(c), plainly provides that, before accepting a plea, the trial court shall determine that the defendant understands, inter alia, "the mandatory minimum penalty provided by law, if any, and the maximum possible penalty.... I 1 Even the written "waiver of rights and agreement to enter plea" executed by Wuornos fails to reflect this pertinent information.
The written llwaiverof rights and agreement to enter plea" also omits this pertinent information. (R250-51)
INSUFFICIENT FACTUAL BASIS
Prior to accepting a plea of no contest, the trial judge must receive in the record factual information to establish the offense to which the defendant has entered his plea. Williams v.
State, 316 So.2d 267, 271 (Fla. 1975). Counsel's stipulation that a factual basis exists, without more, is insufficient.
Dydek v. State, 400 So.2d 1255, 1257 (Fla. 2d DCA 1981).
Generally, the rule "may be compiled with by receiving evidence, testimony, a proffer of evidence, statements by counsel or the defendant, or reference to the record sufficient to satisfy the court that there is evidence to convict on each element of the charge." Williams v. State, 534 So.2d 929, 930 (Fla. 4th DCA 1988). The purpose of the factual basis requirement is to insure "that the facts of the case fit the offense with which the defendant is charged." Williams, 316 So.2d at 271. In other words, Nita plea may meet the test of voluntariness, knowledge and understanding of the consequences, yet still be inaccurate.It Id., at 272. Moreover, where a defendant claims a defense during the plea proceeding, such as lack of criminal defense or self defense, Itthe plea is subject to attack unless the defendant "specifically and understandingly waives that defense." Id. at
273. See also State. Kendrick, 336 So.2d 353 (Fla. 1976);
State. Lvles, 316 So.2d 277 (Fla. 1975).
In Kendrick, the court noted:
Where a defendant raises the possibility of a defense to his guilty plea, the potential prejudice is apparent. In such circumstances, a trial judge should make extensive inquiry into factual basis before accepting the guilty plea.
336 So.2d at 355. Additionally, Florida Rule of Criminal Procedure 3.172(d), requires:
Before the trial judge accepts a guilty or nolo contendere plea, the judge must determine that the defendant either (1) acknowledges his or her guilt or (2) acknowledges that he or she feels the plea to be in his or her best interest, while maintaining his or her innocence.
Appellant contends that the trial court's inquiry regarding the factual basis and Rule 3.172(d) was insufficient in this particular case. Wuornos maintained her innocence throughout the plea colloquy. The factual basis set forth at the plea colloquy covers eighteen pages. (R689-707) Wuornos repeatedly explains that she acted in self-defense.
He attempted to rape me, and so I shot him. And we fought for the weapon on that one,...I killed in self defense but 1 still can't live with myself...
I took a life so it's time for me to He had a lead pipe and attempted to
(R693-700) When Wuornos reiterated her claims of self-defense, the trial court very carefully explained that Wuornos had the absolute right to present that affirmative offense to the jury.
This was insufficient.
In the face of Wuornos' assertions that she acted in self defense, Appellant submits that the requirement of Rule 3.172(d) becomes even more critical. Wuornos never acknowledged her guilt and never explained how the plea was in her best interest. All she really wanted to do was get out of the Marion County Jail and return to death row. See Point I, SA. Wuornos told the trial court, ttI'm entering this no contest no matter what,...ll (R693) Wuornos never acknowledged her guilt. When asked why she was entering her pleas, Wuornos replied, IIBecause I love the Lord, God. And I just feel that I took a life so it's time for me to letter in which she reiterated her innocence and blamed a corrupt system for her plight. (R717-735) "So I plead today no contest in self defense...I still want to plead no contest and end all this \ jazz / because I'm sick of it." (R734-35) The trial court responded, ttyouwill get your wish." (R735) Wuornos expressed her desire to be electrocuted as soon as possible. (R735) The trial court ultimately found a factual basis for the plea. The court also found, 'Ishe feels it is in her best interests to enter this plea rather than go through the jury trial process.@I (R742) The trial court never explained what those "best interests" were. This was not an A1fordl7 plea.
Wuornos received absolutely no benefit in pleading. Under the circumstances, the inquiry by the trial court was insufficient.
Appellant's pleas must be vacated.
A defendant does not admit guilt or the factual basis for the charge, but pleads in order to take advantage of favor able terms offered by the prosecution. Al ford v. North Carolina, 400
POINT I1
FUNDAMENTAL ERROR OCCURRED WHERE THE
TRIAL COURT FAILED TO USA SPONTE ORDER A
HEARING TO DETERMINE APPELLANT/S MENTAL
CONDITION. THIS RESULTED INA VIOLATION
OF FLORIDA RULE OF CRIMINAL PROCEDURE
3.210 AND APPELLANT'S CONSTITUTIONAL
RIGHTS UNDER THE FIFTH, EIGHTH AND
FOURTEENTH AMENDMENTS.
For quite some time now, the Due Process Clause of the Fourteenth Amendment has been interpreted as prohibiting states from trying and convict ing a mentally incompetent defendant. See Duskv v. United States, 362 U.S. 402 (1960); Pate v. Robinson, 383 U. S. 375 (1966); Fallada v. Duqqer, 819 F.2d 1564, 1568 (11th Cir. 1987). In Drope v. Missouri, 420 U. S. 162, 180-81 (1975), the United States Supreme Court explained:
The import of our decision in Pate v.
Robinson is that evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.
Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.
As this Court pointed out in Pridqen v. State, 531 So.2d 951, 954 (Fla. 1988):
Florida courts have also held that the determination of the defendant's mental condition during trial may require the trial judge to suspend proceedings and order a competency hearing. Scott v. State, 420 So.2d 595 (Fla. 1982); Holrnes v. State, 494 So.2d 230 (Fla. 3d DCA 1986); Lane v t State, 388 So.2d 1022 (Fla. 1980) (finding of competency to stand trial made nine months before does not control in view of evidence of possible incompetency presented by experts at hearing held on eve of trial).
This Court determined that Pridgen who had previously been found competent to stand trial, exhibited behavior that gave the trial court "reasonable ground to believe" that Pridgen was not mentally competent to continue to stand trial during the penalty phase. Id.
Under Pate v. Robinson, 383 U. S. 375 (1966), a defendant may allege that the trial court denied him or her due process by failing usa sponte to hold a competency hearing. James v.
Sinsletary, 957 F.2d 1562, 1571 (11th Cir. 1992). "To put it bluntly, a Pate claim is a substantive incompetency claim witha presumption of incompetency and a resulting reversal of proof burdens on the competency issue.tt u. On appeal from a trial court's failure usa sponte to hold a competency hearing, an appellate court may consider only the information before the trial court before and during trial. See, e. q., Tiller v.
EsDosito, 911 F.2d 575, 576 (11th Cir. 1990). Under a Pate claim, a defendant must establish that the trial judge ignored facts raising a "bona fide doubtttregarding the defendant's competency to stand trial. Fallada v. Dusser, 819 F.2d 1564, 1568 (11th Cir. 1987). Accordingly, Pate claims can and must be raised on direct appeal. James v. Sinqletarv, 957 F.2d at 1572.
Florida Rule of Criminal Procedure 3.210(a) provides in part:
A person accused of an offense...who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent.
(1) A l'material stage of a criminal proceeding" shall include the trial of the case, entry of a plea, sentencing...or other matters where the mental competence of the defendant is necessary fora just resolution of Rule 3.210(b), provides:
If before or during the trial the court of its own motion, or upon motion of counsel for the defendant or for the State, has reasonable mound to believe that the defendant is not mentally competent to stand trial, the court shall immediately enter its order setting a time fora hearincr to determine the defendant's mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and shall order the defendant to be examined by no more than three nor fewer than two experts prior to the date of said hearing.
Attorneys for the State and the defendant may be present at the examination. [Emphasis added. J The statements of Aileen Wuornos during her plea colloquy, at her court appearance waiving her presence at trial, and at sentencing provide reasonable ground to believe that Wuornos was not competent to proceed. The trial court should have recognized this fact and compiled with Rule 3.210.
The record below clearly reflects "reasonable ground to believe" that Aileen Wuornos was mentally incompetent to proceed.
Throughout her plea colloquy, Appellant reiterated that she killed the three men in self-defense. See Point I. In spite of this valid affirmative defense, Wuornos insisted on waiving her right to trial, pleading to the charges, and waiving her presence at the subsequent penalty phase. She received absolutely no benefit for this "bargain.It There were many clues that the trial court should have detected during Appellant's rambling speeches at the plea hearing
(R753-747), the waiver of her presence at the penalty phase (Tlgo), and sentencing. (R748-87) Of course the record must be read in its entirety, but counsel offers the following excerpts as examples of hints that should have aroused the trial court's suspicion regarding Appellant's mental competence.
I-- I killed in self defense, but I still can't live with myself -- with it -- and it's just a religious thing I feel that I Because I love the Lord, God.
And I just feel that I took a life so it's time for me to go. And I took a life so -- so I'm paying for it. (R697) I was a hitchhiking prostitute for six years....these were strangers; these were not my regular customers. My regular were, basically, in Saudi Arabian. (R700-1) -- Just hope I get sent back because Marion County has been doing a lot of abusing me at the County Jail, and I just want to get back to death row. [The trial court asks Appellant if the abuse in the county jail was an attempt to coerced her plea.]...
Oh, no. I mean -- I think it's for me to try to kill myself or something. I don't know what their problem is. (R711-12) I will seek to be electrocuted as soon as possible. There's no sense in me suffering for something that I shouldn't suffer for. I hope -- I hope I get the electric chair as soon as possible.
I want to get off this crooked, evil planet. I mean -- my goodness, ifI have to live ina system that's authorized by people who work ina -- ina system that's nothing but like Ildisciples of Satan."
I don't even want to live in prison. I just want to get off this planet, go to God, go live in heaven where there's peace and harmony. Because I've never seen SO much evil. (R735-36) The above quotes are lifted from Appellant's plea colloquy, at which, Appellant also read a long, rambling statement. (R718-36) Approximately one month after entering her pleas, Wuornos appeared before the trial court on May 4th to waive her presence at the penalty phase. She addressed the court again with an even longer, more rambling statement, before the trial court eventually cut her off and promised her another forum when he sentenced her. (T36-87) During the May 4th waiver, Appellant detailed the elaborate conspiracy by law enforcement, lawyers, judges, and the "crooked system" that unjustifiably condemned her.
the deception of fraud and conspiracy plays they involve themselves in on my cases for greed and political lime lighting, and many other things and reasons they did for, in which they sta ged a great amount of decent to the public in order to create gain by a crime that really has been all along a justifiable one...And then lastly 1 will be revealing to you statements from my confessions themselves, which were purposely hid from the public eye over the mere reasons
(T38) Wuornos then launched into a lengthy, disjointed explanation of how she ended up before the trial court. In addition to lambasting the corrupt system, Wuornos reiterated her innocence, explaining that she acted in self-defense. See, e.cl., (T46,60-61,69-71,79-86). Her diatribe also included references to losing her sanity and a prior suicide attempt.
Still really in love, but slowly realizing my love was going nowhere with him, and feeling down from other occurrences in life that earlier I had experienced, now having temporarily gone insane, which I flew off the handle and, within my mind, decided to go off and kill myself and all the pain...
(T46) Despite her persistence that she acted in self-defense, Wuornos explained that she was pleading nolo contendere, because she had lost all hope.
No, I will never receive a fair trial with all the crooked ness that has gone on.
There has to be one hell of a huge investigation done, and send it to the Supreme Court, and only then would I feel fairness would be done.
(T55) She explained that during her incriminating statements to police, she was mentally confused.
...during my interview with Mr. Munster and Mr. Larry Horzepa I was going through slight DT's and alcohol withdrawals, leaving me incoherent in stages to occurrences, incompetent to speak clearly, and sound judgment under such questioning.
(T70) At all three court appearances, Wuornos rambled, was paranoid and delusional, proclaimed her innocence, displayed religious idea tion, related a prior suicide attempt, and displayed an irrational fear of the tlcorruptsystem.I1 She pled guilty as charged and expressed her desire to be executed Its soon as possible. (R735) She pled "straight upttwith no guarantees. That very act was another suicide attempt; a successful one at that. These were clearly sufficient cues such that the trial court's suspicion should have been aroused. The court should have usa sponte ordered a competency hearing.
Amend. V, VI, VIII and XIV, U. S. Const.; Art. I, SS 9, 16 and 17, Fla. Const.
POINT I11
THE INTRODUCTION OF IRRELEVANT,
COLLATERAL, AND PREJUDICIAL EVIDENCE
OVER DEFENSE OBJECTION TAINTED THE
JURY'S DEATH RECOMMENDATION.
Since Wuornos had already pled nolo contendere to three counts of first-degree murder and three counts of robbery, the States Job at the penalty phase was relatively simple.
Appellant's pleas made the States case for the aggravating circumstances." Asa result of those pleas, the State was able to argue that the murders were committed during the commission of a felony and that the murders were committed for pecuniary gain.
The State used testimony from the medical examiner to argue that Humphreys' murder was especially heinous. The State used Appellant's Volusia County conviction and the contemporaneous convictions to prove Wuornos' prior violent felony convictions.
The State seemed to rely on Appellant's Ilmodus operandill in their attempt to establish "heightened premeditation.tt The States case-in-chief was very short, taking up approximately 125 pages of transcript. (T527-645) Wuornos offered little evidence in mitigation. Defense counsel published the videotaped interview of Wuornos by detectives following her arrest. (T652-58; R550-652) The only other evidence presented by the Appellant was the 25 pages of testimony of Arlene Pralle, the adoptive mother of Wuornos.
The State contended and the trial court agreed that four aggravating factors applied to all three homicides. Additionally, a fifth (HAC) applied to Humphreys' murder. (T517-21) (T659-85) Ms. Pralle testified about Appellant's deprived childhood and adolescence. Pralle detailed Appellant's career as a prostitute during which she was raped on several occasions.
(T671-72) Pralle also described her friendship with Wuornos, her religious conversion, and her subsequent change in attitude.
Pralle also testified about Appellant's hate for Marion County law enforcement which explained the difficulty deputies had while transport ing Wuornos prior to trial. (T678-82)19 Over Appellant's objections, the State presented five witnesses in rebuttal. (T772-806) Bobby Lee Cops testified that, in 1990, Wuornos hitched a ride with him. When he rebuffed her offers of prostitution, she subsequently threatened and tried to kill him with the gun in her purse. He llmiraculouslyll escaped. (T772-80) Investigator Marvin Padgett testified that Appellant's brother and sister refused her claims of an abusive childhood. (T784-90) Another witness testified that, during her 1982 incarceration, Wuornos told prison officials that she had found religion and, with the help of God, intended to turn her life around. (T802-806)" Finally, a corporal and a lieutenant with the Marion County Sheriff's Office described Appellant's llbad attitude" during her transport from Broward Correctional Institution to the Marion Several Marion County lawmen profiled financially from their involvement in Appellant's case through the sale of book and film rights.
The State offered this evidence to ostensibly rebut Arlene Pralle's testimony that Wuornos had recently experienced a spiritual rebirth following her arrest.
County Jail. (T792-801) Wuornos threatened to kill one of the officers and threatened both of them. She described her plan to start a revolution wherein police officers would be society's targets.
The general rule in Florida is that evidence of a collateral crime or other bad act is inadmissible where it proves only bad character or propensity to commit a charged crime. The objection able evidence, admitted over objection, denied Ms.
Wuornos due process of law pursuant to the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 16 and 17 of the Florida Constitution.
A new penalty phase is required.
Improper admission of collateral crime evidence is presumed to be harmful. See, e.cy., Castro v. State, 547 So.2d 111, 115 (Fla. 1989). Even where there is overwhelming evidence of guilt21, the State bears the burden of proving that the erroneously admitted evidence did not affect or contribute to the verdict. State. Lee, 531 So.2d 133 (Fla. 1988). Evidence of collateral crimes or bad acts is inherently prejudicial because it creates the risk that a conviction22will be based on the defendant's bad character or propensity to commit crimes, rather than on proof that he committed the crimes charged. Straight v.
State, 397 So.2d 903 (Fla. 1981). To minimize this risk, the Although the error in this case occurred during a penalty phase, Appellant emphasized that the States burden is an onerous one.
22 Or, in this case, three death sentences.
evidence must meet a strict standard of relevance. Heurins v.
State, 513 So.2d 122, 124 (Fla. 1987). Evidence of other crimes must be of such a nature that it would tend to prove a material fact at issue. See State. Sovino, 567 So.2d 892 (Fla. 1990).
Even if relevant, such evidence must be excluded if its only relevance is to show bad character or propensity, or its probative value is substantially outweighed by danger of undue prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. Brvan v. State, 533 So.2d 744, 746 (Fla. 1988). When evidence of collateral crimes or bad acts is so disproportionate that it becomes a feature rather than an incident of the trial, the State has gone too far. The evidence must be excluded, even if relevant. Los v. State, 610 So.2d 1276, 1280-81 (Fla. 1992).
Except fora general character attack, Appellant can perceive no relevance to the evidence presented by the State in Itrebuttal.It The State{s evidence portrayed Wuornos asa psychopathic cop-hater who had a deranged vision of the future.
The jury heard of Wuornos' plan to start a revolution with the main goal of shooting police officers in the head. (T792-801) Additionally, State witnesses described Wuornos' generally "bad attitude.mm The jury undoubtedly concluded that she was not a model prisoner. Additionally, the State{s ttrebuttallt witnesses portrayed Wuornos asa nomad of the highways preying on good Samaritan who wanted nothing more than to help her out in times of need. (T772-80) Finally, the State{s evidence painted a portrait of Wuornos as one who lies about her childhood and fakes religious conversion. (T784-90,802-6) In addition to being an improper character attack, the objection able evidence tended to inappropriately Ilbury" Appellant's case for mitigation. The evidence rebutted nothing.
Dornau v. State, 306 So.2d 167, 170 (Fla. 2d DCA 1975), held that evidence may not be admitted in rebuttal if it does %ot really rebut or contradicts anything to which the defendant had previously testified." Britton v. State, 414 So.2d 638 (Fla. 5th DCA 1982), held that evidence which was not strictly rebuttal evidence was admissible, only if the evidence would have been admissible during the case-in-chief. The evidence was not competent rebuttal and should have been excluded.
The State contended that some of their rebuttal evidence showed a pattern of llfalsell religious conversion by Wuornos.
The testimony did not refute evidence that Wuornos had undergone a spiritual rebirth since her arrest. The evidence showed only that Wuornos had, on one other occasion, attempted to turn her life around through religion. Ultimately, it did not work. She was unable to pull herself out of the cesspool of sin.
Similarly, many recovering alcoholics suffer numerous llslips, ll before they are able to stay sober for any length of time. Like alcoholism and other addictions, faith in God is a daily battle that many people face. Nor did her verbal attacks on the two officers who transported her to Marion County for court rebut the fact that Wuornos is now a Christian.
IISubstantially different issues arise during the penalty phase of a capital trial that require analysis qualitatively different than that applicable to the guilt phase." Castro v.
State, 547 So.2d 111, 115 (Fla. 1989). The irrelevant, prejudicial evidence presented by the State negate the case for mitigation presented by Wuornos and improperly influenced the jury in its penalty phase deliberations. The State insinuated that the jury should recommend death because Wuornos was a lying, deceitful, trouble-making, cop-killer. The error appears even more egregious, when one considers that the State chose to focus evidence in the final on the improperly admitted llrebuttalll argument to the jury. (T824-26,829,834) The State particularly hammered on the testimony of Bobby Cops. Death sentences should not be based on such insinuations. The State is bound by certain rules in their guest to execute citizens. The State did not play fair during Appellant's trial. The resulting death sentence is constitutionally inform.
POINT IV
THE STATES USE OF HEARSAY EVIDENCE
VIOLATED APPELLANT'S CONSTITUTIONAL
RIGHTS TO DUE PROCESS, CONFRONTATION AND
CROSS-EXAMINATION OF ADVERSE WITNESSES.
Other than her videotaped confession to police, the only other evidence presented by the Wuornos was the testimony of Arlene Pralle, her adoptive mother. (T659-708) Pralle testified, inter alia, that Wuornos' childhood was particularly abusive and unloving. On cross-examination, the State quizzed Pralle about the source of her information. (T693-95) Pralle testified that Dawn Neiman, Wuornos' childhood friend, told her about the abuse.
Q: So Dawn Neiman then supposedly saw this all first hand?
A: Correct.
Q: Now, you're aware, of course, that Barry Wuornos has denied under oath that anything like that ever happened?
(T694-95) The trial court overruled defense counsel's immediate objection. (T695) The prosecutor then continued his line of questioning.
Q: Okay, You were sitting ina courtroom in Volusia County when Barry Wuornos under oath said that none of that ever happened?
he didn't know what was happening at any of the time. He wasn't even there. He was in the Service.
Q: NOW, you're also aware that Lori Grody has denied that any of that ever happened, too?
(T695-96) The State never called Barry Wuornos or Lori Grody as witnesses to testify at Appellant's trial. Defense counsel subsequently complained about his inability to cross-examine Barry Wuornos. (T788)23 The introduction of the hearsay testimony over objection constitutes reversible error in this particular case. The States action, allowed and approved by the trial court, resulted ina denial of Appellant's rights to confrontation of witnesses and due process under Article I, Sections 9, 16 and 22 of the Florida Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Because imposition of the death penalty rests on facts established solely through hearsay, the death sentence is unreliable under the Eighth and Fourteenth Amendments and Article I, Section 17 of the Florida Constitution.
The language of Section 921.141(1), Florida Statutes (1991) notwithstanding, it is clear that a defendant has the right to cross-examine and to confront witnesses during the penalty phase of a capital trial. It goes without saying that a statute cannot digest a citizen of constitutional rights. In Encsle v. State, 438 So.2d 803 (Fla. 1983), this Court clarified any doubt as to whether the Sixth Amendment applies to the penalty phase of a The State presented more hearsay evidence during larebuttal" on the same issue. (T784-89) A state investigator testified that people he interviewed in Michigan denied that Wuornos was abused asa child.
capital trial. It does. See also Watson v. State, 481 So.2d 1197 (Fla. 1986).
Even the statute puts clear restrictions on the use of hearsay evidence.
...Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair omortunitv to (emphasis supplied.)
§ 921.141(1), Fla. Stat. (1991).
The introduction of the objection able, hearsay evidence cannot be said to be harmless error in this case. The trial court's sentencing orders recite facts that are supported solely by hearsay. The trial court rejects, or gives only slight weight to, the evidence that established Appellantls abusive childhood.
(R307-8,463-64; SR9-10) Additionally, in closing argument, the prosecutor argued at least some of the hearsay evidence presented. (T834-35) The introduction of, argument an, and use of hearsay testimony over Appellant's objection calls into question the reliability of the juryls verdict and the trial court's imposition of the death sentences. The death sentences must be vacated.
POINT V
THE JURY'S DEATH VERDICT WAS TAINTED BY
EVIDENCE OF NONSTATUTORY AGGRAVATION IN
CONTRAVENTION OF THE EIGHTH AMENDMENT.
The Pendincr ADDeal of Appellant's Volusia County Death Sentence.
During voir dire, defense counsel disclosed to the jury panel that Wuornos had already been sentenced to death ina Volusia County case. (T231-32,433-34) The State also presented some evidence relating to the Volusia County murder. (T603-7, 625) The State requested a special instruction that would have told the jury that Appellant's Volusia County death sentence would be automatically reviewed by this Court. (T740-43) Apparently, the States requested instruction was never read to the jury. (T880-92) Defense counsel requested that the trial court instruct the jury that Appellant's Volusia County death sentence was presumed to be correct on appeal. The trial court declined Appellant's requested instruction. (T740-43) Nevertheless, the State introduced the notice of appeal that Appellant's lawyer had filed on her behalf in the Volusia County case. (T810-11) The prosecutor emphasized this evidence during closing.
Now, Mr. Glazer also made reference to, and will argue to you, that: Well, she already has the death penalty, she already is on Death Row. Ya'll don't need to give her another one.
Well, two things in response to that.
Another one of the documents in evidence that YOU haven't seen is the Notice of Meal from that death Penalty. (emphasis supplied.)
(T836-37) As fate would have it, defense counsel did not argue as the prosecutor predicated. (T842-79) The prosecutors argument regarding Appellant‘s pending appeal was improper. The evidence and argument were absolutely irrelevant. By introducing the evidence and emphasizing it in closing argument, the State presented impermissible evidence of a non statutory aggravating circumstance. Asa result, Aileen Wuornos was denied a fair trial. The subsequent death verdict rendered by the jury is constitutionally inform under the Fifth, Eighth and Fourteenth Amendments and Article I, Sections 9, 16 and 17 of the Florida Constitution.
In essence, the prosecutor was telling the jury that they should recommend the death penalty, because this Court might reverse Wuornos' conviction and death sentence in the pending Volusia County appeal. This clearly constituted argument on a non statutory aggravating circumstance. This is improper.
Barclay v. Florida, 463 U. S. 939 (1983); Proffitt v. Florida, 428 U.S. 242 (1976); Elledqe v. State, 346 So.2d 998 (Fla. 1977).
The improper evidence and argument served only to inflame the jury and unconstitutionally taint their advisory sentence. The State was essentially arguing that Wuornos might be successful on appeal and, unless faced with another death sentence, could one day kill again. This is an improper consideration. See, e.q., Teffeteller v. State, 439 So.2d 840 (Fla. 1983).
Nonstatutorv Aqsravatins Evidence Relating to Personal Characteristics of the Victim.
Marion County Sheriff's Investigator David Taylor was the first witness called by the State. (T527) Taylor testified that the department received a report that I1Dick1lHumphreys had been reported missing. (T531-32)
Q: And who had reported Mr. Humphreys missing?
A: The report was made to the Sumter County Sheriff's Department by his family.
Q: What were you able to establish as to Mr.
Humphreys' family situation and his marital status?
A: After Mr. Humphreys was identified, I subsequently made contact with Mrs.
Humphreys, his wife. He had been married for -- well, they just had celebrate their thirty-fifth wedding anniversary two days prior to him being found.
He had a son. I met the family and the family --
(T532) Defense counsel interrupted with an objection, correctly pointing out that the evidence was irrelevant to prove any statutory aggravating factor. The trial court overruled the objection. (T532) Defense counsel was right. Although evidence relating to personal characteristics of the victim mav be admissible if it is directly related to the circumstances of the crime, see, e.q., Booth v. Maryland, 482 U. S. 496 (1987), the inflammatory testimony elicited by the prosecutor from the witness in this instance went far beyond the permissible bounds. Burns v. State, 609 So.2d 600 (Fla. 1992). Appellant can discern absolutely no probative value in the objection able testimony. Even if the testimony had slight probative value, it would be outweighed by the extreme prejudice. See, e. q., Elledse v. State, 613 So.2d 434 (Fla. 1993). The testimony undoubtedly had the effect of improperly inflaming the jury, thus taint ing their death verdict.
Amend. VIII and XIV, U. S. Const.; Art. I, SS 9, 16 and 17, Fla.
Const.
POINT VI
THE TRIAL COURT ERRED IN LIMITING
APPELLANT'S VOIR DIRE EXAMINATION DURING
JURY SELECTION, RESULTING INA DENIAL OF
DUE PROCESS AND THE RIGHT TO A FAIR
TRIAL.
During jury selection, the trial court inappropriately restricted defense counsel's attempts to voir dire the jury. At one point, defense counsel attempted to explain to the venire his clients wish for an impartial jury.
But if she were sitting here, she would want to find 12 people who are free from opinion as to her fate. And if any one of you were sitting here, you would probably want the same thing.
(T199) The prosecutor immediately objected, calling the above "blatant Golden Rule." (T199) The trial court sustained the objection and instructed the jury to disregard defense counsel's statements.
On another occasion, defense counsel was attempting to explain the jury's duty of weighing the aggravating and the mitigating evidence.
...The important thing for you to realize is that you never ever have to vote for Death if the Defense can show you any bit of
(T306) The prosecutor objected, calling the above a and Itnot voir dire.
ltmisstatementtt (T306) The trial court sustained the States objection.
A short time later, defense counsel attempted to apply the of "innocence" theory to the penalty phase.
fit presumption Because there is something called the presumption of innocence here...usually we She admits she killed these people.
But there is still something in the presumption of innocence that I need to talk But I would like you to presume that she is innocent of the death sentence at this point, if you will.
(T316-17) The trial court sustained the prosecutors general objection and defense counsel ended his questioning at that point. (T317) Defense counsel subsequently broached the alpresumption of "innocence" application to the penalty phase. (T376) The prosecutor eventually objected again.
The state has to prove that she deserves begin this case here, can you begin your deliberations, if you are chosen, presuming that Life with 25-years is -- [Prosecutor]: Judge, I would object. I let it go by. Now, I'm object ing to it again.
That's not an accurate statement.
THE COURT: It's not. I sustain the objection.
(T377) Defense counsel explained the jury instructions for another couple of transcript pages when the prosecutor interrupted again.
You can base your decision on the evidence, the lack of evidence, or the conflict in the evidence. So, whatever evidence comes out of that chair from the State, you can determine from your own points of view what is relevant and what is valid and what should be taken into consideration and what should not be taken into consideration.
That is the power of the jury: to weigh [Prosecutor]: Judge, it's getting to be a lecture.
THE COURT: Sustain the objection.
(T379) Voir dire examination of prospective jurors by counsel is assured by Florida Rule of Criminal Procedure 3.300(b). Jones v.
State, 378 So.2d 797 (Fla. 1st DCA 1980). The purpose of voir dire, "Is to obtain a fair and impartial jury to try the issues in the cause.Il Keene v. State, 390 So.2d 315, 319 (Fla. 1980).
IISubject to the trial court's control of unreasonably repetitions and argumentative voir dire questioning, counsel must have an opportunity to ascertain latent or concealed pre judgments by prospective jurors which will not yield to the law as charged by the court, or to the evidence." Jones, 378 So.2d at 798.
Wide altitude should be allowed during the examination of jurors during voir dire. Cross v. State, 103 So. 636, 89 Fla.
212 (1925). Voir dire examination should be as varied and elaborate as is necessary to obtain fair and impartial jurors whose minds are free of all interests, bias or prejudice. Gibbs
v. State, 193 So.2d 460 (Fla. 2d DCA 1967).
The trial court's restriction of defense counsel's reasonable questioning and correct statements during voir dire resulted ina denial of Appellant's constitutional rights to Due Process of law. Defense counsel's questions did not violate the ''Golden Rule.Il See, e.q., Bertolo * v. State, 476 So.2d 130 (Fla. 1985); Jenninss v. State, 45: t: o.2d 1109 (Fla. 1984); and Barnes v. State, 58 So.2d 157 (Fla. 1951). Counsel's questions dealing with the weighing of mitigating evidence was a correct statement of the law. State. Dixon, 283 So.2d 1 (Fla. 1973).
Furthermore, prior to hearing any evidence of aggravating circumstances, life the presumed sentence. See, e.cr., Band
v. State, 536 So.2d 221 (Fla. 1988). The resulting death verdict is constitutionally inform. Amend. V, VI, VIII and XIV, U.S.
Const.; Art. I, SS 9, 16 and 17.
POINT VII
THE DEATH SENTENCES ARE NOT JUSTIFIED
WHERE THE TRIAL COURT BASED THE
SENTENCES ON INAPPROPRIATE AGGRAVATING
CIRCUMSTANCES AND, IN EFFECT, IGNORED
VALID MITIGATING CIRCUMSTANCES.
INTRODUCTION
The trial court imposed three separate death sentences which are now the subject of this appeal. The trial court's findings of fact in support of each death sentence are virtually identical. (R300-309,456-65; SR1-10)u The trial court's treatment of the aggravating circumstances and the evidence offered in mitigation is similarly almost identical in each case.
Therefore, Appellant will address these issues simultaneously while noting, in brackets, any differences among the cases. The only details concerning the actual commission of the killings came from Wuornos' confession to police following her arrest.
(R550-652)
FACTS PERTINENT TO TROY BURRESS' DEATH
Wuornos remembered Troy Burress as the guy in the "sausage truck. It (R587)... he physically attacked me...He pulled out a ten dollar bill and said, This is all you fuckin' deserve, you fuckin' whore...
He came at me. We were fighting.
I mean, we went all the way into the weeds and everything...fighting. And, uh, when I got away from him, I ran back to the truck, and I had my gun in the back, and 1 ran into the back real quick, and he...
now, we're still fighting and he realizes I got a gun he The trial court found one additional aggravating circumstance applicable to the murder of Humphreys, i.e., the homicide was heinous, atrocious or cruel. (SR4) backed away and I pulled my gun out and I said, You Bastard, and I...I think I shot him right in the gonna start running' and so I shot him again in the He took me down a road that was way kind of bumpy...
and when...
he started grabbing me and we struggled in the woods and we fought and everything else and I ran to the driver's side and I pulled my gun real fast and shot him and then he started running' and I shot him in the back, and then when I ran up to him, you fuckin' bastard, boom, I shot him again. I shot him three times. (R617)...he's fighting' me. I got nude and then he started, I'm gonna get a piece of ass off you, baby, and, you know, you whore and all this other shit. They always like to call you names when they're the ones that are gonna do something' to ya. All the other guys never called me a whore or anything. They were really nice, running towards me and I shot him, and then he started to go away from me, and I shot him again because I, well, you know, the bastard, he's gonna rape me...he didn't even run very far...he said he was gonna like rape me and stuff... (R637)
FACTS PERTINENT TO CHARLES HUMPHREYS' DEATH
Throughout their discussion concerning the murders, Wuornos and the police referred to Charles Humphreys as the "HERS guy.vv25 Humphreys picked Wuornos up on State Road 44 and headed fora remote area.
...I asked...if he was interested and he said, Yea.
Okay,...
when we got to the spot on 484, he took his badge out and he said, I'm gonna have you arrested for Prostitution. I said, Bullshit you are. So he grabbed...
my arm, and he said No, better yet, how would Humphreys worked for the Department of Health and Rehabilitative Services. (R648) you like to suck my dick and I won't do anything, but you and you can go Scott free. I said, I don't think in the front seat and he grabbed my arm and he pulled me outta the front seat and I pushed him back. And as he pushed... there's like this grill thing on the ground, and I grabbed my gun and that's when I shot him.....he stepped back and he started to tumble and he fell. He got back up and I shot him from there....I you know? (R590-2) [After Humphreys again threaten Wuornos with arrest if she refuses free fellatio]...
I told him the best thing alone and so he grabbed my arm and pulled me out we started fighting a little bit and I pushed him...he turned me loose and I got the gun out we struggled with the gun...into the side of the car and I shot him struggling again with me for the gun. He steps back and lost his foot ing he got back up and started comin' back at me again so I shot him again, and then 'cause he was gurgling...So I shot him in the head and I shot him one more time after that. I shot him four times. (R619)26 [After police show her a photograph of Humphreys]...No, that doesn't even look like him. 'Cause he was really kinda gettin' bitchy and everything and he had a real attitude. (R649)
FACTS PERTINENT TO DAVID SPEARS' DEATH
Wuornos remembered David Spears as the mechanic with the pick-up truck, "kind of a rough dude." (R608) She described him 26 One page (38f at R618-19) is missing from the transcript of Appellant's videotaped confession. The first part of this quote was obtained by listening to the videotape. This portion is found at 1:13 to 1:14 p.m. of the videotape.
* asa tall guy witha beard. (R609) near Chaskawiska in Citrus County.
The two of them ended up
(R608) We were nude...screwing' around...g gettin' drunk...he wanted to go in the back of the truck and all I remember is that, I think there was some kind of lead pipe or something' like that and we were in the back of the truck...and when I got back there, he started getting vicious with me and I jumped out of the truck and he jumped outta the truck, [I] ran to the...
door, opened the door, grabbed my bag, grabbed the gun out, and I shot him quick as possible. I shot him at the tail gate of the truck. And then he ran around to the driver's side tryin' to get in the truck towards me,...and I thought, What the hell you think you're doin', dude,...I am gonna kill you 'cause you were tryin' to do whatever you could with me. And I shot 'em through the door... and I went right through to the driver's side and shot 'em again, and he fell back.
the truck and took off. (R609) He had a metal pipe in the back of the truck and he asked me to come to the back of the truck and lay on that damn bed that had no blankets or nothing'. Then, uh, was going to start to, when he grabbed the pipe and he was going to fight with me. That's when I...jurnped out...ran to the door, grabbed my gun out, and shot him... he ran around to the driver's side and tried tQ get into the truck. I don't know how, why...But I ran to the... p passenger side, and shot 'em through the hand and he was going kinda like back...and I shot 'em just got in the truck and drove away....I was pretty drunk then, too. (R642-44)
FACTS PERTINENT TO ALL OF THE CASEB
In her lengthy statement to police, Wuornos frequently generalized about facts that were common to all of the cases.
The trial court also made certain generalizations in the written findings of fact. The following excerpts from WUOrnOS' confession are pertinent to the analysis of the evidence as it relates to the aggravating and mitigating circumstances in all of the killings.
...I'm very 1 did.
sorry about this. 1 didn't mean to do what I just -- I don't think I knew what I was doing...I'm a good person inside but when I get drunk I don't know what happens when somebody messes with me.
...When somebody hassles me, I mean, I'm like, don't fuck with me. (R553)...if you're a hooker, and you get somebody who starts messin' with you, then you get pissed off. And I'm sorry 'cause I've been raped 9 times in my life. And I wasn't about to let somebody skip out on my Mooney that I'm working for...I wasn't about to let somebody rape me either. So when they got really huff with me, which I had gone through over 250,000 men, and they got -- (Inaudible) -- I got 6 guys. That's because they times I was drunk. 'Cause 1/11 admit, I'm an killed 'em because they got violent with me and I decided to defend myself. I wasn't gonna let 'em beat the shit outta me or kill me, either. And I'm sure if they found out I had a weapon...I always had it in plain view...if after the fighting' they found it, they would've shot me. So I just shot them. But I'm glad because Feel very guilty. I don't think I should killed all those people. Well, I think it was like self defense, myself, but no one can judge that but he was tryin' to screw me in the ass...I might as well just keep on shooting' 'em. Because I gotta kill the guy 'cause [he would]...g o and tell somebody if he lives... this dirty bastard deserves to die anyway because of what he was tryin' to do to me. So those three things went in my mind for every guy I I've dealt with 100,000 guys. But these guys are the only guys that gave me a problem...I still say that it was in self defense. Because most of 'em either were gonna start to beat me up or were gonna screw me in the ass,...and they'd get rough with me, so the front of the car or jump over the seat or whatever, grab my gun and just start shooting'. (R555-58)...But when I get drunk, like I said, I'd be drinking' with these guys and...i f they messed with me,...
I'd get just as violent as they would get on me -- to try to protect myself. (R560)...I never woulda hurt anybody unless I had to and I had to at the time. (R564)... I was drunk, so they were gonna take advantage of me because I was lit...
they would have beat the shit out of me and probably found my gun and shot me or beat the shit outta me and took off -- or beat the shit outta me, rape me and take off. You know, 1 don't know.
around killing' somebody unless you have to. I really, in my heart, I would never hurt anybody unless I had... I killed 'em because they tried to do something' to hustling, and the guys gonna physically harm me, that I they were bad 'cause they were this person was either gonna physically beat me up, rape me, or kill me. And I don't know which one. And I just turned around and did my fair play before I would get hurt, see? (R572)...I was always scared so I'd get rid of everything and I'd try to wipe everything down...I knew I had killed somebody...
look what you've done... people just started messin' with me...so -- now, I've been raped nine times but never killed. I've been beat up so bad you couldn't describe me. So I got to the point where I needed a gun and that's why I got this gun. (R593)...maybe it was self defense, maybe it was stupid,...
maybe I [would've] got away from them... (R604) Usually it would be we both got naked and I was gonna do an honest deed but I had a big fight. They were either gonna physically fight me -- either try to rape me...They just started gettin' rad ical on me and I had to do what I had to do. (R613) [Police ask if she went through Burress' wallet] -- probably did 'cause I think I went through 'em all to their pockets for identification and stuff and then I would find maybe like a twenty or something' in their wallet... (R617-18) They never said anything. They just...
I shot so fast.
[Police point out that, for the most part, Wuornos always "got the drop" on the men and ask why she didn't then just run.] Because I was always basically totally nude with my shoes off and everything and I wasn't gonna run through the woods...[ Police ask why she went ahead and shot the men.] Because they physically fought with me and I was... afraid, 'cause they were physically fighting' with me and I -- what am I supposed to do, you know, hold the gun there until I get dressed and now I'm gonna walk outta here? When the guy...might...run me over with his truck or might come back...have a gun on him, too...I didn't know if they had a gun or not.
[Police ask what motivated Wuornos to take the men's property.] I guess it was after, it was pure hatred. Yea, I think afterward, it was like, You bastard, you woulda hurt me and, uh, 1/11 take the stuff and get my Mooney's worth because some of 'em didn't even hardly have any Mooney...some of 'em didn't that, you bastards, you were gonna hurt me, you were gonna rape me, or whatever you were gonna do, well, I'll just, you know, keep these little items so I don't have to buy 'em or something'. I don't know. I just...
Q. It was like a final revenge? A. Yea. Okay. That would do. (R626-28)
Q. [D]id you tell them beforehand that you were gonna kill 'em? A. Oh, no. No, I didn't...I had no it wasn't intentional killing. It wasn't just kill somebody. It was because shot 'em one time and they survived, my face and all that, description of me, would be all over the place and the only way I could make Mooney was to hustle. And I knew these guys would probably...
rat on me if they survived...
I was hoping...that I wouldn't of had gotten caught for it because I figured that these guys deserved it. Because these guys were gonna either rape, kill -- I don't know what they were gonna do to me. (R628-29)
Q....y ou had to go ahead and kill these men so that they couldn't testify against you...
? A. Oh, no, I didn't even think that either. I shot 'em 'cause it was like to me, a self depending thing because 1 felt that ifI didn't shoot 'em and 1 didn't kill 'em, first of all, if they survived, my ass would be gettin' in trouble for attempted murder, so I'm up shit creek on that one anyway,...I mean I had to kill 'em -- or it's retaliation, too. It's like, you bastards. You were gonna -- you were gonna hurt me. (R629) definitely gonna shoot 'ern to let 'em die, because they... in my head strangle me, they were gonna rape me, kill me, they were crossing my line...I don't know if they were gonna strangle me, -- if they had a gun... (R639) Oh, God, I was pretty drunk then, too. Uh, every time these guys would get me loaded, that's what it is.
They'd get me wiped out so they could have the better end of me...get me so loaded that they could, you know, physically fuck with me. (R644) [Discussing what Wuornos did with the men's property... I Wherever I could find to throw the junk at. And I'd keep what, you know, like a camera or something for me. What the heck, ifI wanna buy a camera...To me it was like, why not keep this stuff. I threw the stuff away...
and kept what would be worth Mooney...[Police ask if she used stolen items to live on.] I didn't really have that planned. I didn't have anything like that planned. I more or less, said Oh, what the hell, I don't need to keep this stuff and why not just pawn it off. It was like needed food or whatever. (R645)...I got involved with these guys because...it was a physical situation...I'm serious...I'm very sorry.
(R652)
A. AS TO EACH DEATH SENTENCE, THE TRIAL COURT EFlRED IN FINDING
TEAT THE CRIME WAS COMMITTED DURING THE COMMISSION OF A
ROBBERY/PECUNIARY GAIN.
In finding this aggravating circumstance in all three cases, the trial court wrote:
These circumstances are derived from a single aspect of the case. Therefore, they will be considered asa single aggravating factor. In addition to entering a plea to the murder of [David Spears, Troy Burress, Charles Humphreys] the Defendant at the same time also entered a plea to armed robbery of the same victim. [On the day of his death, Troy Burress collected over $200.00 in cash.] [The evidence establishes that David Spears had just been paid and had cashed his check a short time before he left his employment on the day he disappeared.] The evidence reveals that no Mooney was found on the victim's body or in his vehicle. Furthermore, at the time the Defendant murdered her other six victims, she took items of value, kept some in storage, and pawned others. These facts are sufficient to establish that the murder in this case was committed for pecuniary gain and during the course of a robbery. [Additionally, the vehicle of David Spears (and Charles Humphreys) was not driven solely asa means of escape, but was abandoned many miles from where his body was found. See Scull v.
State, 533 So.2d 1137 (Fla. 1988).]
The pecuniary gain factor and, when the felony is robbery, the felony-murder circumstance, are limited to situations where the primary motive for the killing is monetary gain. See Simmons
v. State, 419 So.2d 316, 318 (Fla. 1982); State. Dixon, 283 So.2d 1, 9 (Fla. 1973). This Court has approved the finding of @ pecuniary gain only in cases where an actual robbery was occurring or at least being attempted, or in which the defendant receives something of value during the crime, See e, cr., Bolender
v. State, 422 So.2d 833 (Fla. 1982) [murder during robbery and torture of cocaine dealers]; Ross. State, 386 S0.M 1191 (FH.
(1990) [killed burglary victim and ransacked house for valuables];
Antone v. State, 482 So.2d 1205 (Fla. 1980) [contract killing];
Harsrave v. State, 366 So.2d 1 (Fla. 1979) [robbery of a convenience store].
The evidence does not establish beyond a reasonable doubt that Aileen Wuornos killed an^ of the victims in an attempt to obtain property. The evidence is more consistent that Appellant's gathering of valuables was merely an after thought to the murder. In Youns v. Zant, 506 F. Supp. 274, 280-81 (M.D.Ga.
(1980), the court rejected a finding that the murder was committed during the course of a robbery or for pecuniary reasons ina similar situation.
Having carefully considered all the evidence presented at trial, the court finds that the evidence was not legally sufficient to support the jury's finding beyond a reasonable doubt that the murder was committed in the course of an armed robbery or for the T)purpose of obtaining Mooney. The only relevant evidence presented at trial indicated that petitioner did not contemplate the taking of any Mooney until after the shots had been fired and the blows had been struck, i.e., after the Based on the evidence presented at trial, petitioner prior to the commission of the murder had only intent to rob the victim is only speculation. Certainly the evidence does not prove these aggravating factors beyond a reasonable doubt.
The only details surrounding the killings come from Wuornos' confession. The physical evidence does not contradicts her version of what occurred out there in the woods with each man.
Therefore, the trial court should have and this Court must accept Appellant's version as the truth. See, e.q., Jaramillo v. State, 417 So.2d 257 (Fla. 1982) and Cannadv v. State, 427 SO. 2d723 (Fla. 1983). Wuornos' confession reveals that robbery was the last thing on her mind. She never even thought of taking the men's property until after the killing.
...I think I went through [all of their wallets] to their pockets for identification...and then I would find maybe like a twenty or something'...
(R617-18) When the police asked what motivated her to take the men's property after killing them, Wuornos explained, "it was characterization of the thefts as "final revenge.## (R628) One part of her confession made it abundantly clear that keeping the property was merely and after thought.
threw the stuff away... and kept what would be worth Mooney... [ police ask if she used stolen items to live on.] I didn't really have that planned. I didn't have anything like that planned. I more or less, said Oh, what the hell, I don't need to keep this stuff and why not just pawn it off.
(R645) In finding this particular aggravating factor, the trial court attempted to rely on the fact that Spears' and Humphreys' cars were "not driven solely asa means of escape, but [were] abandoned many miles from where [the bodies were] found.Il (R458;
SR3) Counsel fails to see the logic in the trial court's conclusion. The fact that the cars were abandoned many miles from the bodies is evidence that Wuornos used the cars solely as a means of escape. She did not sell the cars. She did not profit monetarily in any way whatsoever. The trial court relied on Scull v. State, 533 So.2d 1137 (Fla. (1988) in support of its conclusion. Scull also stole his victim's car and this Court concluded, " [ I ] t is possible that the car was taken to facilitated escape rather than a means of improving his financial worth.Il Scull, 533 So.2d at 1142. The trial court's reliance on Scull is misplaced. As in Scull, the State failed to prove beyond a reasonable doubt that Wuornos killed any of the men for their vehicles.
The intent to deprive the men of their property did not occur until the incident was over. As such, the murder was not committed during the course of a robbery. The taking of property was an after thought. Clark. State, 609 So.2d 513 (Fla. 1992).
If the felony is committed immediately following the murder, this aggravating circumstance is not applicable. Moodv v. State, 418 So.2d 989 (Fla. 1982) [circumstance improperly found where defendant committed an arson of the victim's home after the killing.] AT no point during Appellant's numerous statements to the police did she ever admit that she killed the men in order to facilitated a robbery. In fact, she clearly indicated the contrary.
B. IN ALL THREE CAEJES THE TRIAL COURT ERRED IN FINDING THAT THE
MURDER WAS COMMITTED TO AVOID A LAWFUL ARREST.
In finding this particular circumstance, the trial court wrote:
The Defendant gave a rather lengthy confession in which she stated several times that the victims were killed to prevent them from identifying her. These admissions are sufficient to establish this factor.
Remeta v. State, 522 So.2d 825 (Fla. 1988). This circumstance is further evidenced by the fact that each victim, including [Troy Burress, Charles Humphreys (sic)Jn was shot multiple times, including a shot in the back. This evidences violence toward the victim which is far in excess of that necessary to complete any robbery. The killing of multiple robbery victims in separate robberies is evidence that they were killed to eliminate them as witnesses, Oats v. State, 446 So.2d 90 (Fla. 1984). The absence of any signs of a struggle together with the number of victims negate any claim by the Defendant of self-defense. There is no evidence to support any defense claim that this murder was done out of any motive except to eliminate the possibility that this victim would be able to identify her as the person who had robbed him. The evidence in this case clearly establishes that the elimination of witnesses was at least a dominate motive of the defendant. Green v. State, 583 So.2d 647 (Fla. 1991), citing Caruthers v. State, 465 So.2d 496 (Fla. 1985).
As in the finding of the previous aggravating circumstance, The trial court's written findings of fact in support of the death penalty imposed for the murder of David Spears inappropriately, and probably mistakenly, lists Charles Humphreys as the victim rather than David Spears. (R458) Written findings of fact supporting death sentences in this state must be filed contemporaneously with the imposition of sentence. §921.141(3), Fla.Stat. (1991); Bouie v. State, 559 So.2d 1113 (Fla. 1990);
Grossman v. State, 525 So.2d 833 (Fla. 1988). Written findings of fact must be precise, not sloppy and shoddy. See, e. q., Robertson v. State, 611 So.2d 1228, 1232 (Fla. 1993) [Trial court may not draw tmlogicalinferencest1to support a finding of a particular aggravating circumstance]. Cf. Mann v. State, 420 So.2d 625, 628 (Fla. 1982). Therefore, Appellant submits that this particular aggravating circumstance must be stricken from the consideration of David-Spears's murder.
the trial court's logic is fatally flawed. All of Appellant's actions listed above were clearly done to avoid detection for the murder. After the assignations turned ugly, Appellant shot the men to death. Appellant then had a dead body on her hands. She did her best to cover her tracks. The accuracy of this analysis is revealed if one stops the action at any point prior to the shooting. Under any theory presented by the State, a halt in the action immediately before the shooting beg the critical question: For what crime was Amelia nt seek ins to avoid arrest?
Wuornos and the men were all engaged in acts of prostitution. It is doubtful that the men would have reported their activity to the police. The only serious crimes committed by Appellant were the murder and the theft of the men's property after the murder.
(See preceding argument.)
This Court has repeatedly held that the tlavoidingarrestt1 aggravating factor is not applicable unless the evidence proves that the only or dominant motive for the killing was to eliminate a witness. See, e, q., Perry v. State, 522 So.2d 817, 820 (Fla.
(1988); Flovd v. State, 497 So.2d 1211, 1214-15 (Fla. (1986); Riley
v. State, 366 So.2d 19, 21-22 (Fla. 1978). Even if the victim knew and could identify the defendant, that, without more, is insufficient to prove this factor beyond a reasonable doubt.
See, e.q., Perry, 522 So.2d at 820; Floyd, 497 So.2d at 1214-15;
Caruthers v. State, 465 So.2d 496, 499 (Fla. 1985); Rembert v.
State, 445 So.2d 337, 340 (Fla. 1984). See also Davis v. State, 604 So.2d 794 (Fla. 1992) [circumstance disapproved even though victim knew defendant and could identify him as the burglar] and Lawrence v. State, 614 So.2d 1092 (Fla. 1993) [evidence insufficient for murder of store clerk during robbery].
The pertinent portion of Appellant's confession is Wuornos' answer when the police asked why she kept firing after the first shot.
...I was afraid that ifI shot 'em one time and they survived,...
my face...would be all over the place and the only way I could make Mooney was to hustle. And I knew these guys would probably survived...I was hoping......
rat on me if they I wouldn't of had gotten caught for it because I figured that these guys deserved it. Because these guys were gonna either rape, kill...me.
(R629) Investigator Horzepa then asked the pointed question:
...y ou had to go ahead and kill these men so that they couldn't testify against you...
A. Oh, no, I didn't even think that either. I shot 'em 'cause it was...a self depending thing because I felt that ifI didn't shoot 'em and I didn't kill 'em,...if they survived, my ass would be gettin' in trouble for attempted murder...I mean I had to kill 'em...it's retaliation, too. It's like, You bastards...y ou were gonna hurt me.
(R629) While certain portions of the statement, taken out of context, would seem to lead to the conclusion that this circumstance applied, the confession must be read in its entirety. It is clear that Wuornos' dominant motive for the killings was rage and revenge; not to avoid arrest. Even the trial court seemed unconvinced that the elimination of witnesses was Appellant's primary motive in the killings. (T812) [tit don't think it has to be the primary number one factor. I think it has to be one of them. Anyway, it's an issue for appeal."] None of the men had never met Wuornos prior to the fatal encounters. Most importantly, there was no reason to eliminate the men as witnesses since, prior to the murders, no crime had been committed. The State failed to prove this aggravating circumstance beyond a reasonable doubt.
C. AS TO EACH OF THE THREE CASES, THE TRIAL COURT ERRED IN
FINDING THAT THE CAPITAL FELONY WAS COMMITTED INA COLD,
CALCULATED, AND PREMEDITATED MANNER WITHOUT ANY PRETENSE OF
MORAL OR LEGAL JUSTIFICATION.
In finding this particular aggravating circumstance, the trial court wrote:
The evidence in this case reveals that ina one year period, the Defendant shot and killed seven men.
Each of the seven victims, including [Troy Burress, David Spears] was a white male, over the age of 40, who was traveling alone on a major highway in Central Florida. Each one had been taken to a remote location, shot multiple times often in the back and robbed of their belongings and vehicles. The Defendant was armed in advance of each of these murders. This is a fact from which the Court can find this factor. Lamb v.
State, 532 So.2d 1051 (Fla. 1988). (See Eutzv v.
State, 458 So.2d 755 (Fla. (1984), where procuring the gun in advance, killing the victim execution style with no signs of a struggle was sufficient to prove this factor.) Additional evidence that the Defendant was armed in advance of the murder is provided by the testimony of Don Champagne that each of the murders was committed by a firearm with the same characteristics as the one recovered from Rose Bay which was positively connected with the murder of Charles Humphreys.
As further evidence that the murders were committed from a cold, calculated and premeditated design, the testimony reveals that in some of the cases the Defendant wiped the victim's car to remove her fingerprints. Also, the Defendant removed personal items and identification from the vehicles of some of her victims showing an attempt to avoid detection and arrest. See Jackson v. State, 522 So.2d 802 (Fla.
(1988), cf: Lamb v. State, supra.
Taken asa whole, the evidence clearly shows this murder was the result of a cold, calculated and premeditated design by the Defendant to locate the victims to rob and then to murder them. This factor is considered appropriate in murders involving the elimination of witnesses. Bates v. State, 465 So.2d 490 (Fla. 1985).
Although the Defendant claimed the murder in this case was committed in self-defense, the court is not required to accept the Defendant's version of how this murder occurred if it is irreconcilable with the other facts proven. Scott v. State, 494 So.2d 1134 (Fla.
(1986). The facts outlined in the previous paragraphs of this part clearly show that this death was not the result of the Defendant's acting in self-defense.
There is absolutely no evidence that Wuornos had any preconceived plan to kill any of the men. Wuornos' statement to police provides the only details as to what actually happened that night. The trial court correctly points out that a defendant's version of a crime need not be accepted, if it is irreconcilable with other facts and evidence. The physical evidence is inconsistent with Appellant's confession.
The facts in the case at bar are very similar to those in Cannadv v. State, 427 So.2d 723 (Fla. 1983), where this Court held:
We find that the state failed to prove beyond a reasonable doubt that this murder was committed ina cold, calculated, and premeditated manner without any pretense of moral or legal justification. The only direct evidence of the manner in which the murder was committed was Appellant's own statements. When he first began incriminating himself, he repeatedly denied that he meant to kill Carrier. During his confession Appellant explained that he shot Carrier because Carrier jumped at him. These statements establish that Appellant had at least a pretense of a moral or legal justification, protecting his own life.
The trial judge expressed disbelief in Appellant's statements because the victim was a quiet, unassuming minister and because Appellant shot him not once but five times. Though these factors may cause one to dis believe Appellant's version of what happened, they are not sufficient by themselves to prove beyond a reasonable doubt that the murder was committed ina cold, calculated, and premeditated manner without any pretense of moral or legal justification. In Mann v.
State, 420 So.2d 578 (Fla. 1982), the defendant was convicted of killing a ten-year-old girl who died from a Scull fractured and had been stabbed and cut several times. Despite the girl's youth and nature of her injuries, we held that the trial court improperly found the murder to have been committed ina cold, calculated, and premeditated manner. We also held that this aggravating circumstance did not apply in McCrav
v. State, even though an eyewitness testified that the defendant approached the victim, yelled, "This is for you, mother fucker," and shot the victim three times in the abdomen. Thus, the unlikelihood that the victim threatened or jumped Appellant and the Appellant's shooting the victim five times are insufficient facts to prove premeditation beyond that necessary to sustain a conviction for premeditated murder. We therefore find that the court erred in finding that the murder was committed ina cold, calculated, and premeditated manner without any pretense of moral or legal justification.
Cannadv, 427 So.2d at 730-31. Cannady admitted that after robbing Carrier, the night auditors at the Ramada Inn in Panama City, he kidnapped and drove Carrier to a remote wooded area where he shot him.
The facts in Cannadv are directly on point. The case is indistinguishable. As in Cannadv, Wuornos' confession was filled with, at the very least, pretense of moral or legal justification.
[Burress] physically attacked me...He came at me. We were fighting when I got away from him...I had my gun we're still fighting and I said, You bastard,...I shot him... (R587-88)...he started grabbing me and we struggled...we fought... (R617) shot him,...
I shot him again because...the bastard, he's gonna rape me... (R637) Humphreys threatened Wuornos with arrest if she refused to perform fellatio without compensation. (R590-92) "[H]e grabbed my arm and he pulled me outta the front seat...I grabbed my gun and that's when I shot him...He got back up and I shot him...
'cause he pkssed me off..." (R590-92) Wuornos explained that she and Humphreys "started fighting a little bit," when she got the gun out and they mtstruggledwith the gun." (R619) Similarly, Spears had a lead pipe and "started getting vicious.t1
(R609,642-44)
Even if one does not completely accept Appellant's version of what happened to be 100% truthful, the State has failed to prove this circumstance beyond a reasonable doubt. Even if one accepts the conclusion that the killings were the result of a planned felony ina remote location, this circumstance will not apply. See, e.q., Crux> v. State, 18 Fla. L. Weekly S331 (Fla.
June 10, (1993) [defendant, on two separate occasions, killed women ina criminal pattern in which he picked up prostitutes, bound, beat and strangled them before discarding their nude bodies near cemeteries -- CCP does not apply]; Clark. State, 609 So.2d 513 (Fla. (1992) [circumstance does not apply even though defendant took victim out to the woods before killing him with two blasts from a sawed-off shotgun].
D. AS TO THE HUMPHREYS, THE TRIAL COURT ERRED IN FINDING TEE
0 MURDER ESPECIALLY HEINOUS# ATROCIOUS OR CRUEL.
In finding this particular aggravating circumstance, the trial court wrote:
The examination of Charles Humphreys' body revealed bruises which indicate that he had been abused before his death. The bruise found on Humphreys' abdomen was caused by the gun Barred being forced into his side so that it abraded the skin even through his shirt. Clearly, Charles Humphreys was aware before he was killed that he was being robbed and was aware of the possible death asa result. See $cot v. State, 494 So.2d 1134 (fla. 1986). He did not die instantly when the Defendant began shooting him. Rather, he attempted to escape but was continually shot by bullets from the Defendant's gun. Even as he lay on the ground moaning, the Defendant walked up and executed him to Itputhim out of his miserytt. See Sauires v. State, 450 So.2d 208 (Fla. 1984). (SR4) In Lewis v. State, 398 So.2d 432, 438 (Fla. 1981), this Court announced the principle that It, murder by shooting, when it is ordinary in the sense that it is not set apart from the norm of premeditated murders, is asa matter of law not heinous, atrocious, or crue1.I' In the realm of first-degree murders, Humphreys' shooting was ordinary.
This particular aggravating circumstance also focused on the intent of the defendant. In Porter v. State, 564 So.2d 1060 (Fla. 1990), the crime was not meant to be deliberately and extraordinarily painful, even though it probably was. It is abundantly clear that Appellant did her best to prevent Humphreys from suffering. Wuornos told police that she shot Humphreys three times in quick success ion. (R590-92) When he fell down for the final time, Wuornos explained:
for him 'cause he was gurgling...
So I shot him in the I shot him one more time after that. I shot him four times.
(R619) It is clear from all of the evidence that Appellant attempted to end Humphreys' life as quickly as possible.
This Court has refused to uphold this aggravating circumstance in other, factually similar cases. Hallman v.
State, 560 So.2d 223 (Fla. 1990) [guard killed with single shot to the chest with death probably occurring within a matter of a few minutes]; Williams v. State, 574 So.2d 136 (Fla. 1991) [defendant restrained bank guard, then shot her with little delay]; Amoros v. State, 531 So.2d 1256 (Fla. 1988) [murderer fired three shots into the victim at close range]; and Teffeteller v. State, 439 So.2d 840 (Fla. 1983) [victim suffered shotgun blast to the abdomen, lived for several hours in undoubted pain, and knew he was facing death]. This is not a case where the victim was abducted and kidnapped prior to the murder. Humphreys was with Wuornos of his own free will.
Charles Humphreys had seven bullet wounds. (T585-88) Although none of the shots would have been instantly fatal, the shot to the head would have incapacitated him very quickly.
(T588-89) The medical examiner could not determine the order of the wounds.
The trial court seemed to place great stock in the Ilbruises which indicate that [Humphreys] had been abused before his death." It sounds as if Humphreys was severely beaten before his death. Such was not the case. Humphreys had one cruise on the right side of his abdomen which was consistent witha gun Barred being shoved into his side. (T591-92) Additionally, Humphreys suffered a few, small bruises inside his right, upper arm.
(T592) The only other bruise resulted from one of the gunshot wounds. (T592) The medical examiner had no theory as to the cause of the small bruises inside Humphreys' arm. (T596-97) The doctor admitted that they could have been present up to 4 8 hours prior to his death. (T597) As such, the evidence establishes beyond a reasonable doubt only one bruise to Humphreys' abdomen that was inflicted by Wuornos. Such is not the stuff of "heinous, atrocious or cruel. The State failed to prove this aggravating circumstance beyond a reasonable doubt.
Em TREATMENT OF MITIGATING EVIDENCE.
The trial court rejected all of the statutory mitigating circumstances, concluding that the evidence did not support them.
(R305-7,461-63; SR6-8) The trial court's ambiguous treatment of the evidence offered in mitigation is somewhat confusing. The court reports that:
1. Asa child, the Defendant was allegedly physically abused in the homes in which she was raised.
Hearsay testimony from the Defendant's adoptive mother presented evidence that the Defendant's grandfather, characterized as an alcoholic, allegedly inflicted physical abuse on the Defendant. The statements purportedly came from the Defendant and a childhood friend of the Defendant. The State presented rebuttal evidence in the form of hearsay testimony from an investigator in the Citrus County Sheriff's Department.
This investigator traveled to Michigan and interviewed the family members of the Defendant who denied that any physical abuse occurred within the home. Additionally, the State presented evidence that the same childhood friend, who allegedly told the adoptive mother of the abuse, denied any such knowledge to law enforcement.
2. The Defendant allegedly expresses remorse for the commission of this murder and the murders of other victims. The Defendant's adoptive mother presented hearsay testimony that the Defendant has allegedly experienced a religious conversion and is sorrowful for her past deeds. However, the State presented evidence that, subsequent to the alleged religious conversion, the Defendant, without provocation, threatened the lives of law enforcement officers. Additionally, the Court heard testimony that the Defendant has made similar claims while she was imprisoned in 1982.
(R307-8,463-64; SR9-10) In the trial court's conclusion, the court wrote, "The evidence establishes, at best, only two mitigating circumstances which deserve only slight weight.I1
(R308,464; SR10) Appellant concedes that the evidence concerning some of the non statutory mitigating circumstances is in conflict. Much of Appellant's mitigating evidence was hearsay. All of the States evidence in rebuttal was hearsay. However, the trial court is incorrect when it concludes that the non statutory mitigating factors are not supported by the greater weight of the evidence.
Some of the mitigating evidence was uncontroverted.
Although the State did present hearsay evidence that refused Pralle's testimony that Wuornos was physically abused asa child, the State did not refute the fact that Wuornos was abandoned by her mother when she was an infant. (T666) Nor did the State refute the fact that the first few months of her life were spent in squalor and filth. Nor did the State refute that, at the age of thirteen, Lee was raped, impregnated and forced to live at a home for unwed mothers. (T670) Nor did the State refute evidence that Lee was living on the streets by the age of fifteen, forced to prostitute her body. (T670-71) The State also failed to refute evidence that Leels brother Keith, her closest family tie, died at a very young age, leaving Lee shattered. (T673) The State also failed to refute evidence that Wuornos had a history of abusing drugs and was a life-long alcoholic. (T671-72) These facts are uncontroverted.
In dealing with Appellantls intoxication during the killings, the trial court wrote:
There is nothing in the record to show that the Defendant was under the influence of extreme mental or emotional disturbance when she committed the murder[s].
Though some slight evidence indicates that the Defendant consumed some alcoholic beverages on or about the date of the commission of the offense[s], that evidence is insufficient to establish this factor asa mitigating circumstance.
(R305,461; SR7) The trial court fails to explain why the evidence is insufficient to establish Appellant's intoxication asa non statutory mitigating circumstance. Wuornos' confession is replete with references to her drunkenness.
...See, most of the times I was drunk as hell.
Most of the times I was drunk. 'Cause I'll admit, I'm
(R556)...when I get drunk,...I'd be drinking' with these guys... (R560)...y es, we were drinking, and yes, we were -- I was drunk...(R567)... alotta times I was drunk,...(R573)...I don't remember. I was drunk as shit. This one I don't remember. This is a blackout, I was drunk as could be. I rnusta had a case of beer on this one. I was drunk as could be... (R621) I was pretty drunk then too. Every time these guys would get me loaded, They'd get me wiped out so they could have the better end of me,...g et me so loaded... (R644)...
I don't know.
Appellant submits that the evidence that she was intoxicated during all three murders is uncontroverted. The trial court should have accepted this evidence in mitigation.
In Campbell v. State, 571 So.2d 415, 419 (Fla. 1990), this Court stated that the trial court Ilmust find asa mitigating circumstance each proposed factor that has been reasonably established by the evidence and is mitigating in nature."
"Although the relative weight given each mitigating factor is within the province of the sentencing court, a mitigating factor once found cannot be dismissed as having no weight." Campbell, 571 So.2d at 420. In failing to find that Appellant's unhappy (at the very least) childhood was mitigating, the trial court made an error similar to the sentencing judge in Nibert v. State, 574 So.2d 1059 (Fla. 1990). Nibert's trial judge rejected the defendant's abused childhood as mitigation, pointing out that "at the time of the murder the Defendant was twenty-seven (27) years old and had not lived with his mother since he was eighteen (18).ll Nibert, 574 So.2d at 1062. This Court correctly pointed out that psychological and physical abuse during a defendant's formative years is per se mitigation. Id.
In light of the unusual procedure pursued by Appellant in this particular case, extraordinary measures are required. This Court has recently pointed out the importance of scrutinizing evervthinq for any evidence of mitigation. Far v. State, 18 Fla. L. Weekly 5380 (Fla. June 2 4, 1993).
Second, Far argues that the trial court was required to consider any evidence of mitigation in the record, including the psychiatric evaluation and pre sentence investigation. Our law is plain that such a requirement in fact exists. We repeatedly have stated that mitigating evidence must be considered and weighed when contained anywhere in the record, to the extent it is believable and uncontroverted. [Citations omitted] That requirement applies with no less force when a defendant argues in favor of the death penalty, and even if the defendant asks the court not to consider mitigating evidence.
Id. In this regard, Appellant requests that this Court take judicial notice of the court file of Wuornos v. State, Case Number 79,484, now pending on direct appeal before this Court.
SS 90.202(6)(12) and 90.207, Fla.Stat. (1991); Kelley v. Kelley, 75 So.2d 191 (Fla. 1954) and Peterson v. Paoli, 44 So.2d 639 (Fla. 1950). Appellant will file a separate motion formally requesting judicial notice.
In the record on appeal for Appellant's other case, the trial court conclusively found that Wuornos suffered from a borderline personality disorder which gtdoesnot rise to an extreme mental or emotional disturbance." (R4669) The trial court accepted same asa non statutory mitigating factor. Id.
Additionally, the record on appeal in the companion case contains other evidence which, Appellant contends, the trial court inappropriately ignored. Appellant incorporates by reference the argument set forth in the Initial Brief (pp. 96-97) in Wuornos v.
State, Case Number 79,484.
The trial court in the case at bar improperly rejected uncontroverted evidence that established numerous non statutory mitigating circumstances. Additionally, the record on appeal in the companion case proves that both statutory mental mitigating circumstances were proven. The trial court in the companion case accepted the evidence and found that Wuornos suffered from a borderline personality disorder. Additionally, both records on appeal establish numerous non statutory mitigating factors which the State failed to refute and should have been found by the trial court in this case.
CONCLUSION
The trial court improperly found several aggravating circumstances. The court also improperly rejected uncontroverted non statutory mitigating circumstances. Additionally, the entire record of Appellant's cases, including the record on appeal in the companion case, support other mitigating circumstances, both statutory and non statutory. A proper weighing of all of the evidence leads to the inescapable conclusion that death is disproportionate and a life sentence is warranted in Appellant/s case.
POINT VIII
CONSTITUTIONALITY OF SECTION 921.141,
FLORIDA STATUTES.
1. The JUEV
a. Standard Jury Instructions The jury plays a crucial role in capital sentencing. Its penalty verdict carries great weight. Nevertheless, the jury instructions are such as to assure arbitrariness and to maximize discretion in reaching the penalty verdict.
i. Heinous, Atrocious, or Cruel The instruction does not limit and define the "heinous, atrocious, or cruel" circumstance. This assures its arbitrary application in violation of the dictates of Mavnard v.
Cartwriqht, 486 U. S. 356 (1988); Shell v. Mississippi, 498 U. S. 1 (1990); and Espinosa v. Florida, 112 S.Ct. 2926 (1992). The IInew" instruction in the present case (T882) violates the Eighth Amendment and Due Process. The HAC circumstance is constitutional where limited to only the consciencelessor pitiless crime which is unnecessarily torturous to the victim.'I Esphosa, supra. Instructions defining Ilheinous, Ilatrocious, in terms of the instruction given in this case are unconstitutionally vague. Shell, supra. While the instruction given in this case states that the consciencelessor pitiless crime which is unnecessarily torturous" is '*intended to be included, Il it does not limit the circumstance only to such crimes. Thus, there is the likelihood that juries, given little discretion by the instruction, will apply this factor arbitrarily and freakishly.
The instruction also violates Due Process. The instruction relieves the state of its burden of proving the elements of the circumstances as developed in the case law.28
ii. Cold, Calculated, and Premeditated The same applies to the Itcold, calculated, and premeditatedvv circumstance. The standard instruction simply tracks the statute.29 Since the statutory language is subject to a variety of construction, the absence of any clear standard instruction ensures arbitrary application. See Rogers v. State, 511 So.2d 526 (Fla. 1987) (condemning prior construction as too broad).
Jurors are prone to similar errors. See Hodges v. Florida, 113 S.Ct. 33 (1992) (applying Espinosa to CCP and acknowledging flaws in CCP instruction). Since CCP is vague on its face, the instruction based on it also is too vague to provide the constitutionally required guidance. Any holding that jury instructions in Florida capital sentencing proceedings need not be definite, would directly conflict with the Cruel and Unusual Punishment Clauses of the state and federal constitutions. These clauses require accurate jury instructions during the sentencing 28 For example, the instruction fails to inform the jury that torturous intent is required. See McKinnev v. State, 579 So.2d 80, 84 (Fla. 1991) ("The evidence in the record does not show that the defendant intended to torture the victimwt).
29 The instruction is: Inthe crime for which the defendant is to be sentenced was committed ina cold, calculated and phase of a capital case. Espinosa v. Florida, 112 S.Ct. 2926 (1992). The instruction also unconstitutionally relieves the state of its burden of proving the elements of the circumstance as defined by case law construing the Ilcoldness, "calculated, Itheightened premeditation, and flpretensell elements.
iii. Felony Murder This circumstance fails to narrow the discretion of the sentencer and therefore violates the Cruel and Unusual Punishment and Due Process Clauses of the state and federal constitutions.
Hence, the instruction violates the Cruel and Unusual Punishment and Due Process Clauses of the state and federal constitutions.
b. Majority Verdicts The Florida sentencing scheme is also inform because it places great weight on margin for death as slim asa bare majority. A verdict by a bare majority violates the Due Process and the Cruel and Unusual Punishment Clauses. A guilty verdict by less than a "substantial majority" of a 12-member jury is so unreliable as to violate Due Process. See Johnson v, Louisiana, 406 U. S. 356 (1972), and Burch v. Louisiana, 441 U.S. 130 (1979).
It stands to reason that the same principle applies to capital sentencing. Our statute is unconstitutional, because it authorizes a death verdict on the basis of a bare majority vote.
In Burch, in deciding that a verdict by a jury of six must be unanimous, the Court looked to the practice in the various states in determining whether the statute was constitutional, indicating that an anomalous practice violates Due Process.
Similarly, in deciding Cruel and Unusual Punishment claims, the Court will look to the practice of the various states. Only Florida allows a death penalty verdict by a bare majority.
c. Florida Allows an Element of the Crime to be Found by a Majority of the Jury.
Our law makes the aggravating circumstances into elements of the crime so as to make the defendant death-eligible. See State
v. Dixon, 283 So.2d 1 (Fla. 1973). The lack of unanimous verdict as to any aggravating circumstance violates Article I, Sections 9, 16 and 17 of the state constitution and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal constitution.
See Adamson v. Tickets, 865 F.2d 1011 (9th Cir. 1988) (en banc);
contra Hildwin v. Florida, 490 U. S. 638 (1989).
d. Advisory Role The standard instructions do not inform the jury of the great importance of its penalty verdict. The jury is told that their recommendation is given "great weight." But in violation of the teachings of Caldwell v. Mississimi, 472 U. S. 320 (1985) the jury is told that its lfrecommendationll is just Itadvisory.l1
2. Counsel Almost every capital defendant has a court-appointed attorney. The choice of the attorney is the judge's -- the defendant has no say in the matter. The defendant becomes the victim of the ever-defaulting capital defense attorney.
Ignorance of the law and ineffective ness have been the hall marks of counsel in Florida capital cases from the 2970's through the present. See, e.q., Elledse v. State, 346 So.2d 998 (Fla. 1977) (no objection to evidence of non statutory aggravating circumstance).
Failure of the courts to supply adequate counsel in capital cases, and use of judge-created inadequacy of counsel asa procedural bar to review the merits of capital claims, cause freakish and uneven application of the death penalty.
Notwithstanding this history, our law makes no provision assuring adequate counsel in capital cases. The failure to provide adequate counsel assures uneven application of the death penalty in violation of the Constitution.
3. The T r ia1 Judcre The trial court has an ambiguous role in our capital punishment system. On the one hand, it is largely bound by the jury's penalty verdict under, e.q., Tedder v. State, 322 So.2d 908 (Fla. 1975). On the other, it has at times been considered the ultimate sentencer so that constitutional errors in reaching the penalty verdict can be ignored. This ambiguity and like problems prevent evenhanded application of the death penalty.
4. The Florida Judicial System The sentencer was selected by a system designed to exclude African-Americans from participation as circuit judges, contrary to the Equal Protection of the laws, the right to vote, Due Process of law, the prohibit ion against slavery, and the prohibit ion against cruel and unusual p~nishment.~' Because 30 These rights are guaranteed by the Fifth, Sixth, Eighth, Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution, and Article I, Sections 1, 2, 9, 16, 17, and Appellant was sentenced by a judge selected by a racially discriminatory system this court must declared this system unconstitutional and vacated the penalty. When the decision maker ina criminal trial is purpose fully selected on racial grounds, the right to a fair trial, Due Process and Equal Protection require that the conviction be reversed and the sentence vacated.
See State. Neil, 457 So.2d 481 (Fla. 1984); Batson v. Kentucky, 476 U. S. 79 (1986); Swain v. Alabama, 380 U. S. 202 (1965). When racial discrimination trenches on the right to vote, it violates the Fifteenth Amendment as The election of circuit judges in circuit-wide races was first instituted in Florida in 1942.32 Prior to that time, judges were selected by the governor and confirmed by the senate.
26 Fla.Stat. Ann. 609 (1970), Commentary. At-large election districts in Florida and elsewhere historically have been used to dilute the black voter strength. See Rogers v. Lodge, 458 U. S.
613 (1982); Connors v. Inch, 431 U. S. 407 (1977); White v.
Resester, 412 U. S. 755 (1973); McMillan v. Escambia County, Florida, 638 F.2d 1239, 1245-47 (5th Cir. 1981), modified 688 F.2d 960, 969 (5th Cir. 1982), vacated 466 U. S. 48, 104 S.Ct.
21 of the Florida Constitution.
31 The Fifteenth Amendment is enforced, in part, through the Voting Rights Act, Chapter 42 United States Code, Section 1973, et al.
32 Fora brief period, between 1865 and 1868, the state constitution, inasmuch as it was in effect, did provide for election of circuit judges.
1577, on remand 748 F.2d 1037 (5th Cir. 1984).33 The history of elections of African-American circuit judges in Florida shows the system has purpose fully excluded blacks from the bench. Florida asa whole has eleven African-American circuit judges, 2.8% of the 394 total circuit judges hips. &g Young, Sinclle Member Judicial Districts, Fair or Foul, Fla. Bar News, May 1, 1990 (herein after Single Member District).
Florida's population is 14.95% black. County and Citv Data Book, 1988, United States Department of Commence. In St. Lucie and Indian River Counties, there are circuit judges hips, none of whom are black. Single Member Districts, supra.
Florida's history of racially polarized voting, discriminationM and disenfranchisement,35 and use of at-large election systems to minimize the effect of the black vote shows that an insidious purpose stood behind the enactment of elections for circuit judges in Florida. See Rogers, 458 U. S. at 625-28.
It also shows that an insidious purpose exists for maintaining this system in the Fifth Circuit. The results of choosing judges The Supreme Court vacated the decision because it appeared that the same result could be reached on nonconstitutional grounds which did not require a finding of intentional discrimination; on remand, the Court of Appeals so held.
34 See Davis v. State ex re1. Cromwell, 156 Fla. 181, 23 So.2d 85 (1945) (en banc) (striking white primaries).
A telling example is set out in Justice Buford's concurring opinion in Watson v. Stone, 148 Fla. 516, 4 So.2d 700, 703 (1941) in which he remarked that the concealed firearm statute I'was never intended to apply to the white population and in practice has never been so applied.'I asa whole in Florida, establish a prima facie case of racial discrimination contrary to Equal Protection and Due Process in selection of the decision-makers ina criminal trial.36 These results show discriminatory effect which, together with the history of racial loc voting, segregated housing, and disenfranchisement in Florida, violate the right to vote as enforced by Chapter 42, United States Code, Section 1973. See Thornburs v. Ginqles, 478 U. S. 30, 46-52 (1986). This discrimination also violates the heightened reliability and need for carefully channel led decision-making required by the freedom from cruel and unusual capital punishment. See Turner v. Murray, 476 U. S. 28 (1986); Beck v. Alabama, 447 U. S. 625 (1980).
Florida allows just this kind of especially unreliable decision to be made by sentences chosen ina racially discriminatory manner and the results of death-sentencing decisions show disparate impact on sentences. &g Gross and Maury, Patterns of Death: An Analysis of Racial Dissarities in Capital Sentencing and Homicide Victimization, 37 i3tan.L.R. 27 (1984); see also, Radelet and Mello, Executinq Those Who Kill Blacks: An Unusual Case Study, 37 Mercer L. R. 911, 912 n.4 (1986) (citing studies).
Because the selection of sentences is racially discriminatory and leads to condemning men and women to die on racial factors, this Court must declared that system violates the 36 The results in choosing judges in Citrus County (no black judges) and Marion County (no black circuit judges) is such stark discrimination as to show racist intent. See Yick Wo v. Hoskins, Florida and Federal Constitutions. It must reverse the circuit court and remand fora new trial before a judge not so chosen, or impose a life sentence.
5. Appellate review
a. Proffitt In Proffitt v. Florida, 428 U. S. 242 (1976), the plurality upheld Florida's capital punishment scheme in part because state law required a heightened level of appellate review. See 428 Appellant submits that what was true in 1976 is no longer true today. History shows that intractable ambiguities in our statute have prevented the evenhanded application of appellate review and the independent reweighing process envisioned in Proffitt. Hence the statute is unconstitutional.
b. Aggravating Circumstances Great care is needed in construing capital aggravating factors. See Mavnard v. Cartwriqht, 108 S.Ct. 1853, 1857-58
(1988) (Eighth Amendment requires greater care in defining aggravating circumstances than does due process). The rule of lenity (criminal laws must be strictly construed in favor of accused), which applies not only to interpretation of the substantive ambit of criminal prohibitions, but also to the (1980), is not merely a maxim of statutory construction: it is rotted in fundamental principles of due process. Dunn Y. United States, 442 U. S. 100, 112 (1979). Cases construing our aggravating factors have not compiled with this principle.
Attempts at construction have led to contrary results as to the "cold, calculated and premeditated" (CCP) and ltheinous, atrocious or cruel1 (HAC) circumstances making them unconstitutional because they do not rationally narrow the class of death-eligible persons, or channel discretion as required by Lowenfield v. Phelw, 484 U. S. 231, 241-46 (1988). The aggravators mean pretty much what one wants them to mean, so that the statute is unconstitutional. See Herring v. State, 446 So.2d 1049, 1058 (Fla. 1984) (Ehrlich, J., dissenting).
As to CCP, compare Herring with Rogers v. State, 511 So.2d 526 (Fla. 1987) (over ruling Herring) with Swafford v. State, 533 So.2d 270 (Fla. 1988) (resurrecting Herring), with Schaefer v.
State, 537 So.2d 988 (Fla. 1989) (reinterring Herring).
As to HAC, compare Raulerson v. State, 358 So.2d 826 (Fla.
1978) (finding HAC), with Raulerson v. State, 420 So.2d 567 (Fla.
(1982) (rejecting HAC on same facts).37 The Ilfelony murder11 aggravating circumstance has been literally construed in favor of the state by cases holding that it applies even where the murder was not premeditated. See Swafford v. State, 533 So.2d 270 (Fla. (1988).
Although the original purpose of the "hinder government For extensive discussion of the problems with these circumstances, see Kennedy, Florida'sIICold, Calculated, and PremeditatedttAssravatinq Circumstance in Death Penalty Cases, 17 Stetson L.Rev. 47 (1987), and Mello, Florida's IIHeinous, Atrocious or CruelttAssravatinq C circumstance: Narrowins the Class of Death-Eligible Cases Without Mak ins it Smaller, 13 Stetson function or enforcement of law1' factor was apparently to apply to political assassination or terrorist acts,38 it has been broadly interpreted to cover witness elimination. See White v. State, 415 So.2d 719 (Fla. 1982).
c. Appellate Reweighing Florida does not have the independent appellate reweighing of aggravating and mitigating circumstances required by Proffitt, 428 U. S. at 252 - 5 3. Such matters are left to the trial court.
See Smith v. State, 407 So.2d 894, 901 (Fla. 1981) ("the decision of whether a particular mitigating circumstance in sentencing is proven and the weight to be given it rest with the judge and jury) and Atkins v. State, 497 So.2d 1200 (Fla. 1986).
d. Procedural Technicalities Through use of the contemporaneous objection rule, Florida has institutionalized disparate application of the law in capital sentencing.39 See, e.q., Rutherford v. State, 545 So.2d 853 (Fla. 1989) (absence of objection barred review of use of improper evidence of aggravating circumstances); Crossman v.
State, 525 So.2d 833 (Fla. 1988) (absence of objection barred review of use of victim impact information in violation of Eighth See Bernard, Death Penalty (1988 Survey of Florida Law), 39 In Elledse v. State, 346 So.2d 998, 1002 (Fla. 1977), this Court held that consideration of evidence of a non statutory aggravating circumstance is error subject to appellate review without objection below because of the Ilspecial scope of review" in capital cases. Appellant contends that a retreat from the special scope of review violates the Eighth Amendment under Amendment); and Srnallev v. State, 546 So.2d 720 (Fla. 1989) (absence of objection barred review of penalty phase jury instruction which violated Eighth Amendment). Capricious use of retroactivity principles works similar mischief. In this regard, compare William v. State, 582 So.2d 610 (Fla. 1991) (Campbell not retroactive) with Nibert v. State, 574 So.2d 1059 (Fla. 1990) (applying Campbell retroactively), Mwxel3. (applying Campbell principles retroactively to post-conviction case, and Dailev v.
State, 594 So.2d 254 (Fla. 1991) (requirement of considering all the mitigation in the record arises from much earlier decisions of the United States Supreme Court).
8. Tedder The failure of the Florida appellate review process is highlighted by the Tedder4* cases. As this Court admitted in Cochran v. State, 547 So.2d 928, 933 (Fla. 1989), it has proven impossible to apply Tedder consistently. This frank admission strongly suggests that other legal doctrines are also arbitrarily and inconsistently applied in capital cases.
6. other Problems With the Statute
a. Lack of SP deci al Verdicts Our law provides for trial court review of the penalty verdict. Yet the trial court is in no position to know what aggravating and mitigating circumstances the jury found, because 40 Tedder v. State, 322 So.2d 908, 910 (Fla. 1975) (life verdict to be overridden only where Whe facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.”) the law does not provide for special verdicts. Worse yet, it does not know whether the jury acquitted the defendant of felony murder or murder by premeditated design so that a finding of the felony murder or premeditation factor would violate double jeopardy under Delax, v. Duwer, 890 F.2d 285, 306-319 (11th Cir.
(1989). This necessarily leads to double jeopardy and collateral estoppel problems where the jury has rejected an aggravating factor but the trial court nevertheless finds it. It also ensures uncertainty in the fact finding process in violation of the Eighth Amendment.
In effect, our law makes the aggravating circumstances into elements of the crime so as to make the defendant death-eligible.
Hence, the lack of a unanimous jury verdict as to any aggravating circumstance violates Article I, Sections 9, 16 and 17 of the Florida Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. See Adamson v.
Ricketts, 865 F.2d 1011 (9th Cir. 1988) (en banc). But see Hildwin v. Florida, 109 S.Ct. 2055 (1989) (rejecting a similar Sixth Amendment argument).
b. No Power to Mitigate Unlike any other case, a condemned inmate cannot ask the trial judge to mitigate his sentence because Rule 3.800(b), Florida Rules of Criminal Procedure, forbids the mitigation of a death sentence. This violates the constitutional presumption against capital punishment and dis favors mitigation in violation of Article I, Sections 9, 16, 17 and 22 of the Florida Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. It also violates Equal Protection of the laws as an irrational distinction trench ing on the fundamental right to live.
c. Florida Creates a Presumption of Death Florida law creates a presumption of death where, but a single aggravating circumstance appears. This creates a presumption of death in every felony murder case (since felony murder is an aggravating circumstance) and every premeditated murder case (depending on which of several definition of the premeditation aggravating circumstance is applied to the case).41 In addition, HAC applies to any murder. By finding an aggravating circumstance always occurs in first-degree murders, Florida imposes a presumption of death which is to be overcome only by mitigating evidence so strong as to be reasonably convincing and so substantial as to constitute one or more mitigating circumstances sufficient to outweigh the pre ~ mption. ~This ~ systematic presumption of death restricts consideration of mitigating evidence, contrary to the guarantee of the Eighth Amendment to the United States Constitution. See Jackson v. Dusser, 837F.2d 1469, 1473 (11th Cir. 1988); Adamson, 865 F.2d at 1043. It also creates an unreliable and arbitrary 41 See Justice Ehrlich's dissent in Berrina v. State, 446 So.2d 1049, 1058 (Fla. 1984).
42 The presumption for death appears in SS 921.141(2)(b) and (3) (b) which require the mitigating circumstances outweicrh the aggravating.
sentencing result contrary to Due Process and the heightened Due @ Process requirements ina death-sentencing proceeding. The Federal Constitution and Article I, Sections 9 and 17 of the Florida Constitution require striking the statute.
d. Florida Unconstitutionally Instruots Juries Not To Consider Sympathy.
In Parks v, Brown, 860 F.2d 1545 (10th Cir. 1988), reversed on wocedural wounds sub nom. Waffle v. Parks, 494 U. S. 484 (1990), the Tenth Circuit held that jury instructions which emphasized that sympathy should play no role violate the Docket principle. The Tenth Circuit distinguished California v. Brown, 479 U. S. 538 (1987) (upholding constitutional instruction prohibiting consideration of mere sympathy), writing that sympathy unconnected with mitigating evidence cannot play a role, prohibiting sympathy from any part in the proceeding restricts proper mitigating factors. Parks, 860 F.2d at 1553. The instruction given in this case also states that sympathy should play no role in the process. The prosecutor below, like in Parks, argued that the jury should closely follow the law on finding mitigation. A jury would have believed in reasonable likelihood that much of the weight of the early life experiences of Appellant should be ignored. This instruction violated the Docket principle. Inasmuch as it reflects the law in Florida, that law is unconstitutional for restricting consideration of mitigating evidence.
e. Eleotroaution is Cruel and Unusual.
Electrocution is cruel and unusual punishment in light of revolving standards of decency and the availability of less cruel, but equally effective methods of execution. It violates the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 17 of the Florida Constitution. Many experts argue that electrocution amounts to excruciating torture. See Gardner, Executions and Indisnities -- An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio State L.J. 96, 125 n.217 (1978) (herein after cited, ttGardnerft).Malfunctions in the electric chair cause See Louisiana ex rel. Frances v. Resweber, unspeakable torture.
329 U.S. 459, 480 n.2 (1947); Buenoano v. State, 565 So.2d 309 (Fla. 1990). It off ends human dignity because it mutilates the body. Knowledge that a malfunctioning chair could cause the inmate enormous pain increases the mental anguish.
This unnecessary pain and anguish shows that electrocution violates the Eighth Amendment. See Wilkerson v. Utah, 99 U. S.
130, 136 (1878); In re Kemmler, 136 U. S. 436, 447 (1890); Coker
CONCLUSION
Based upon the foregoing cases, authorities, policies, and argument, as well as those set forth in the initial brief, Appellant requests the following relief:
As to Points I and 11, vacated the convictions and sentences and remand fora trial;
AS to Points I11 through VI, reverse and remand far a new penalty phase;
As to Points VII and VIII, vacated the death sentences and remand for imposition of a life sentence or, in the alternative, as to Point VIII, declared Section 921.141, Florida Statutes unconstitutional.
Respectfully submitted,
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIALCIRCUIT
FLORIDA BAR NO. 0294632
112 Orange Avenue, Suite A Daytona Beach, FL 32114
(904) 252-3367
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the I foregoing has been hand delivered to the Honorable Robert A.
Butterworth, Attorney General, 210 N. Palmetto Avenue, Suite 447, Daytona Beach, Florida 32114 in his basket at the Fifth District Court of Appeal and mailed to Ms. Aileen Carol Wuornos, X150924, P.O. Box 8540, Pembroke Pines, FL 33024, this 30th day of August, 1993.
ASSIST~JT PUBLIC DEFENDER
IN THE SUPREME COURT OF FLORIDA
FILED StD J. WHITE? ' DEC 3 1995 i
AILEEN CAROL WUORNOS,
Appellant,
V. CASE NO, 81,059
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR MARION/CITRUS COUNTY, FLORIDA
ANSWER BRIEF OF APPELLEE
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
MARGENE A. ROPER
ASSISTANT ATTORNEY GENERAL
FL, BAR. # 302015 210N. Palmetto Avenue Suite 447 Daytona Beach, Florida 32114
(904) 238-4990
COUNSEL FOR APPELLEE
TABLE OF CONTENTS
PAGES:
I, WUORNOS' PLEAS OF NOLO CONTENDERE ARE
11. NO REASONABLE GROUNDS WERE PRESENT TO
SUSPECT THAT APPELLANT WAS INCOMPETENT TO
ENTER A PLEA AND THE TRIAL COURT HAD NO DUTY
111. THE STATE PROPERLY PRESENTED SIMILAR
FACT EVIDENCE AND RELEVANT REBUTTAL EVIDENCE
IV. THE CLAIM THAT THE STATES USE OF
HEARSAY EVIDENCE VIOLATED APPELLANT'S
CONSTITUTIONAL RIGHTS TO DUE PROCESS,
CONFRONTATION AND CROSS-EXAMINATION OF
V. THE JURY'S DEATH VERDICT WAS NOT TAINTED
BY EVIDENCE OF NONSTATUTORY AGGRAVATION IN
VI. THE TRIAL COURT DID NOT IMPROPERLY LIMIT
APPELLANT'S VOIR DIRE EXAMINATION AND
APPELLANT WAS ACCORDED DUE PROCESS AND A FAIR
VII. THE DEATH SENTENCES ARE JUSTIFIED AND
APPROPRIATELY BASED ON VALID AGGRAVATING
CIRCUMSTANCES AND WEAK MITIGATION...................6 6
VIII. CONSTITUTIONALITY OF SECTION 921. 141,
TABLE OF AUTHORITIES
0 CASES: PAGE:
Ai-ane [I. Breech, Ascry u. State, Barclay u. State, Beltran-Lopez u. State, Bertolotti u. State, Blackshear u. State, Breedlove u. Sta, te, Rrosck u. State, Brown u. State, Browrtlee u. State, Bruno it. State, Buenouno u. State, Burn u. State, Cnnnady 11. State, Capehart u. State, Clark u. State, Cook u. State, Crrrntp u. State, Dicks u. State, Douglas u. State, Drops u. Missouri, Espinosa u. Florida, Farinas u. State, Ferrin 11. State, Garcia u. State!
Gibson u. State, William u. State, Gust u. State, Harmony u. State, Harvey u. State, Heiney u. State, Hildiuiri u. State, Hildruiii u. State, Hirzes u. State, Hitchcock 11. State Hoover u. State, Jones U. State, Keith i~. State, King u. State, Lara u. State, Lightbourne u. State, Little u. State, Lopez u, State, Lucas u. State, Mendyk u. State, Mercer u. State, Dickens u. State, Mikenas u. State, Moody u. State, Nowitzhe U. State, Pnite u. State, Pardo u. State, Pate u. Robinsori, Pensacola Lodge u. State, Perry u. State, Peterson u. State, Porter u. State, Preston v. State, Puesarz u. State, Randolph u. State, 0 Renzeta u. State, Robinson u. State I Robinson u. State, Rogers u. State, Sands u. State, Scott u. State, Scull U. State, Siminoizs 11. Stlrte, Sireci u. State, Squires o. State, State 11. Coban, STA te u. DiCuilio State (L), Dixoit Tafero u. State, Tedder u. State, Teffeteller u. State, Tillman u. State, Trawick u. State, Uitited States. Day, United States u. Stead, Virzson, u. State, Wainrurigh t u. Sakes, Watts. State, Willia ins. State," Williarns u. State, Wiioi*izos u. State, Case Number 7 9, 484..................................... 7 5 - vii - Young u State.
OTHER AUTHORTIES:
8775.082(1), Fla. Stat. (1988), 49.viii.
STATEMENT OF THE CASE AND FACTS
Appellee accepts appellant's statement of the case and facts subject to the following inclusion and corrections, The Death of Charles Humphreys The southwest section of Marion County where the body of Charles Humphreys was found is on Highway 484, just west of 1-75
(R528). It was at the end of a cul-de-sac (R 530). Humphreys was 6 ' 1 / 2 ' ' tall and weighed 200 pounds (R 595). He worked as an investigator for H.R.S., in child protective investigations (R 531). He did not carry a weapon in his job. No weapon was found at the scene (R 535). The day before his body was discovered he was in Wildwood, in Sumter County, conducting an investigation.
His family reported him missing (R 532). His supervisor at H.R.S. identified his body (R 531). His body was fully clothed @ when found (R 535). His pants were zipped and his belt was buck led (R 544). No evidence was found at the scene to indicate he had engaged in sexual activity (R535). An I.D. case, with the badge missing, was found off Highway 27 (R 536). Police association cards, credit cards and papers concerning Humphreys' Oldsmobile Firenza were also found (R537). A spent.22 caliber casing was found, as well (R 538). Bullets were removed from Humphreys' body during autopsy and examined (R 541). A cart ridge case found with Humphreys' personal property had been fired in Wuornos' 9shot.22 (R634). Humphreys' brief case was reported missing (R 543). It was recovered ina storage facility rented by Aileen Wuornos (R 541). It was opened using Humphreys' social security number (R 542). There was one wound to the upper part of the right arm (R 587). The other wound was to the right wrist a (R 588). There was a dont abrasions on the right side of the abdomen consistent witha gun Barred being shoved into the body
(R 591).
The Death of Troy Burress Burress would have to have come south to go to SR 40, west to Marion County, and then have proceeded north on 19, to get from Seville to Salt Springs (R547). Burress was approximately pounds. He was married (R 548). Burress' body had been pulled off the roadway into under brush. Palm fronds had been placed on and around the body. It was lying face down (R551). Burress was garbed in jeans, pull-over shirt, and had shoes on, His clothes were fastened and appropriately attached. There was no 0 evidence he had engaged in sexual activity. No condoms were found near the body (R 552). Some receipt which had been thrown into wooded area were recovered. There was no Mooney in his wallet when it was recovered (R 553). The Mooney he had collected that day was missing (R 554). The body was in an advanced stage of decomposition (R 554). The second wound was to the left of the back, center height. The wound to the middle of the chest had almost a straight trajectory through the body. The back wound had an upward trajectory. Bullets were recovered from his body (R555). The.22 caliber bullets were not hollow points (R The Death of David Spears Spears ' body was found an arutted trail an Blaine Lane off
19. The area was used for dumping trash (R567). The body was ina very decomposed state and appeased to have been there quite some time (R568). Spears was divorced (R569). He was forty three years old, 6 ' 4 " tall and weighed 195 pounds (R573).
Bullets were recovered from the body and examined (R 570).
Spears' pickup was found before his body, the day after he was last seen alive. It had a flat tire and had been abandoned (R 572). Spears was found laying face up with his head ina northerly direction and his arms and legs straight out (R574).
He had been shot at least six times. Other shots to flesh areas could not be detected because of decomposition (R 596).
Seventh Body There is a seventh body (Peter Siems) no one has found (R 0 558). Wuornos offered to show authorities where the body was on a map or drive them there, She, said it may be in South Carolina.
She was informed the authorities could not offer her a deal on a South Carolina murder (R559). She still said she would help in finding the body. Prior to that she had been asked to help find the body of Peter Siems and refused to help. She said she didn't trust cops. Authorities finally got her cooperation by enlist ing Mr. Glazer and Ms. Pralle and allowing her to use the jail phone and bringing her books (R 562).
Wuornos' Confession Wuornos confessed to Detectives Horzepa and Munster on January 16, 1991. Ina taped statement she said that Tyria Moore e was not involved (R 550). She was read her rights (R550). She first indicated that she needed an attorney but then changed her mind and said she would be willing to talk since it didn't make a difference and she didn't see what an attorney could do (R 551).
She then considered whether an attorney could help in avoiding the death penalty. When she learned the detectives could promptly get an attorney, she then stated "Okay, I guess 1'11 have to have an attorney (R552). However, without further questioning, she then volunteered that:
But what I did, I don't understand why I did it.
I just don't. I just know that they... they kinda gave me a hassle. When somebody gave me a hassle, I decided to whip out my gun and give it to 'em. Of course, I didn't really want to kill 'em in my heart, but I knew I had to. Because I knew ifI left some witness, then they'd find out who I was and then I'd get caught. (R553).
She further indicated that Moore had not done anything and only knew things she had told her when she was drunk, which Moore did not believe. She told Moore she had been riding her bicycle and found Mallory's body under carpet. She later told Moore when she was drunk that she had killed him (R 554). She reiterated that Moore was innocent (R555). When they wrecked the car of a murder victim and authorities began looking for the two, Moore did not know that the car belonged to a murder victim. Moore was driving. After the wreck Wuornos told her they had to get out of there because she had murdered the man whose car she was driving.
Moore was scared, She began to hate Wuornos and wanted to leave.
They had been lovers (R 555).
Wuornos described the back drop for the crimes:
And if you're a hooker and you get somebody who starts messin' with you then you get pissed off.
And I'm sorry 'cause 1 had been raped nine times in life. And I wasn't about to let somebody skip out on my Mooney that I'm working for and I think is very... kinda clean, 'cause I used rubber all the time. And I wasn't about to let somebody rape me either. So when they got really huff with me, which I had gone through 250,000 men, and they got... Got6 guys. That's because they got rough with me and I defended myself (R555).
Wuornos stated that she felt she had killed in self-defense (R 552). It was very easy for the victims to learn that she had a weapon because she kept it in plain view (R552).
She further stated that one of the victims had attempted anal intercourse, so she started fighting with him, got to her bag, and shot him. He backed away. She felt that he would have beat her or shot her. If she became unconscious he would have found her gun. She deliberated as to whether she should help him or just kill him. She concluded that if she helped him he would tell on her and she would be arrested for attempted murder. She also thought " the dirty bastard, deserves to die anyway because of what he was tryin' to do to me.'' She decided to keep shooting (R Wuornos rifled through one victim's belongings and was surprised to find bible, She couldn't understand why he would want to do something like that to her if he was "into the Lord."
That was another reason she felt very, very guilty (R 557).
Wuornos recounted that she would hitchhike and men would pick her up. She would ask them to help her make rent Mooney and then give price for various sexual acts. These victims she was describing were the only men who had given her problems and such a problems only started last year. She had been staying with an acquaintance and took his.22 nine shot and carried it while she thumbed around. If the client just gave her Mooney she wouldn't do anything to him but if he started hassling her, she would retaliate (R 557).
Moore knew Wuornos was trick ing but did not know she had killed anyone. When Moore found out she went back home. Wuornos asked if any prints had been found on the wrecked car and was informed that both their prints were found. She reiterated that Moore did not know the car belonged to a victim (R558). Wuornos was informed that she did not have to talk about the case and could wait for an attorney. She responded that she didn'tcare and wanted to clear Moore, since she had been seen with her in the wrecked car belonging to a murder victim. She indicated she had only told Moore she had killed someone after the car was wrecked. Two paramedics had stopped and Wuornos told them two men had dropped them off and, they were on their way back to Daytona (R562).
Wuornos was reminded she had exercised her right to have an attorney present and shouldn't be talking (R 563). She agreed that she may need an attorney since she felt she acted in self defense (R 564). Nevertheless, she then stated "Feel very sorry for what I've done. I wish to God I never would've got that gun. And I wish to God I never would've been hooker. " She stated she was being honest and wanted to get it over with (R Wuornos further indicated that she and the victims were drinking. She felt they were going to take advantage of her because she was "lit." If she didn't shoot them they would have beat her, found her gun and shot her, or raped her and taken off).
She was "basically drunk" (R 567).
Wuornos recognized that she had hurt some families but stated "...these men were older men... another thing... after they were dead that didn't bother me 'cause I thought, well, they're older. They probably don't have anybody hardly anyway so it didnlt... me too much," The attorney that had been called then arrived (R572).
Prior to speaking to him, however, Wuornos discussed another murder. She indicated that after she had shot the victim she found that he had gun, a. 4 5, sitting on top of the hood (R 573).
Wuornos stated that after she committed the murders she would get drunk, She could not remember the victims' names (R Counsel then spoke to Wuornos privately (R 574). She was subsequently put under oath (R575). She was again advised of her rights. Counsel was present. Wuornos indicated she would give a statement. Her attorney stated for the record that he had advised her that she didn't have to say anything and that any statements could be used against her, and there was no guarantee her statements clearing Moore would be used (R 576). The attorney indicated it was Wuornos' choice (R577).
Wuornos began by identifying Richard Mallory from a photo
(R577). She stated that in the beginning of December 1989, she went to Tampa and made a little Mooney hustling. She was hitchhiking on 1-4 to return to Daytona. Mallory picked her up just out de Tampa, underneath a bridge (R578). She identified his cream colored Cadillac from a photo. He asked her if she wanted to smoke a joint and she declined. He smoked the pot, He offered her a drink. They drank liquor with tonic. They got drunk. She asked him if he would help her make rent Mooney. He was interested. They stopped at a place on U.S. 1 around midnight but passed the time just drinking and talking (R579).
Then they drove to a trail in the woods, off.S. 1, around 5 o'clock. He gave her the Mooney. He started kissing her. He was wearing jeans and a shirt (R 580). He did not undress, He pushed her down in the front seat. She told him he didn't have to get rough,!'this is for fun.'' He responded "Baby, you know I've been waiting' for this for all night long." The doors were open. He came toward her. He was getting "really heavy." He just wanted to unzip his pants and have sex. She said "Well, why don't you dis robe or something', why do you have to have your clothes "on?" He started to get violent. They fought "a little bit.!' Her purse was on the passenger floor (R 581). She thought he was going to roll her, take his Mooney back, or beat her up (R 582). He was still in the car (R634). In her first version of the incident she indicated that she jumped out of the car with her bag, grabbed the gun, and said "Get outta the car." He said "What's going "on?" She responded "You Son-of-a-Bitch, I knew you were gonna rape me." He said "No I wasn't. "No I wasn't." She responded " OH, yes, you were. You know you were gonna try to rape me, man." She jumped out of the car and pulled out her nine-shot. 2 2 revolver, when he started to abuse her (R 582).
She indicated she had the gun either a couple of months or something like two days (R 583). She then remembered that he hadn't given her the Mooney. She said that she always took her Mooney first but Mallory wanted to see the merchandise. In this second version, she told him he seemed like a pretty nice guy and they should "go have fun" (R583). She asked "Why don't you take your clothes off? It hurt to do that. " He said something like "Fuck you, baby, I'm gonna screw you right here and now." She responded "No, no, you're not gonna just fuck me. You gotta pay me." He said "Oh, bullshit," They started fighting. She jumped out. He grabbed her bag. She grabbed for it and the arm busted.
She got it back. She took the pistol and shot him in the front seat (R584). She didn't give him a chance to say anything (R 634). She thought she hit him on the right side. He had started to get out of the car on the passenger side (R584; 634). He then went to the driver's side and crawled out (R 634-35). He closed the door (R 635). She ran around to the front of the car.
He started morning toward her (R584). She said "If you don't stop, man, right now, I'm gonna continue shooting.'' (R 634). She shot him again in the stomach or the chest. He fell to the ground. She thought she just kept on shooting him (R595). She was drunk. They had been drinking from 5 o'clock in the afternoon (R 634). He was the first one that she shot and killed
(R595). It was starting to get light. She found a red rug (R 595). His feet stuck out from underneath it after she had covered him. She got in the car, backed up, and drove away (R e 596). She got gas then returned to the motel she shared with Moore. She told Moore she had borrowed the car. They used it to move to a new place. She then left the car in bushes, off John Anderson Drive, in Ormond Beach. She buried Mallory's wallet, driver's license and cards (R 597-98). She had taken her bicycle to the area where she left the car, then rode it back. She then told Moore she had found a body in the woods, because she thought Moore might have heard something (R 600). She tore up Mallory's clothing and put it in the garbage (R 645). She pawned his radar detector and 35 m camera at OK Pawn, using Carrier Green's ID (R 598; 645). She had another fake ID in the name Susan Blahovec (R 646). She had also been arrested in 1974, using the name Sandra Beatrice Kretch (R 646). She threw Mallory's Polaroid Instamatic camera ina box in her bin at Jack' Mini Warehouse (R599). She identified the glasses they drank from, as well as his little 0 blue wallet, from a photo (R600). She had buried the items in the sand because she was trying to get rid of prints. She tried towipe the car down witha towel. As she was riding the bicycle she threw the keys to the car in someone's yard on John Andersaii
(R 601). She gave Mallory's electric razor asa Christmas present to the restaurant owner at the place where she stayed (R Wuornos' attorney then indicated he would like to speak to her in private again (R 601). After the consultations, the attorney indicated he had again told her that she would be we1.1 advised to remain silent. Wuornos said she did not care if he stayed ornot. She wanted them to know Moore was innocent (71 602). She stated "1 don'tcare about me. I deserve to die... I took a life. ' ' (R 603). She further stated:
And I am willing to give up my life because I had killed six people, which maybe it was self defense, maybe it was stupid, just off the wall, shoot, maybe I would've got away with it, maybe I... I mean got away from them and got ran or whatever, but, you know I feel guilty. I am guilty. I'm willing to pay the punishment for that. But Tyria is not guilty. Tyria did not do anything.
I During further consultations the attorney asked Wuornos if she ~ realized that these men were cops. She responded "I know and I they wanted to hang me and that's cool because, man, maybe I Wuornos referred to the second victim (Carskaddon) as "the guy with the - 4 5, She shot him over nine times (R628). She identified his car, which had been stripped on the interstate (R 628). She was angry when she found the.45 on top of the car, reloaded her gun and shot him some more (R 613). She usually threw the shell casings away somewhere else (R 614). He had a brown car. He told her he was a drug dealer. He picked her up in Tampa. She took him to a spot on 301. After she shot him he crawled into the back seat and laid down (R 614). He said "You fuckin' bitch, I'm gonna die" or something like that, and she responded " I guess you are, you Son-of-a-Bitch, you were gonna kill me anyway." She reloaded and shot him four more times (R 615). She thought someone may have heard the shots. She went to an area off 52 and dumped his body. She didn't care about him.
He had been prepared t?o shoot her. It was 11 or 12 o'clock at night. She remembered putting something over him (R 615). She got rid of the car an1-75 because it had a flat tire (R 616).
She discussed the third murder (Spears). She recalled a @ man with pick up truck, who told her he was a mechanic. She described him as "kind of a rough dude. " (R608). He was tall, witha beard (R 607). He was to take her to Homasassa Springs to trick (R642). They went down Blaine Road off highway 19 (R 642). It was around 11 or 12 o'clock at night (R642). They were nude. They were getting drunk. He wanted to lie in the back of the truck on a bed with no blankets (R 607; 642). There was a lead pipe there. He started getting vicious (R 607). He grabbed the pipe to fight with her (R 642). She jumped out of the trunk, then he did. She ran to the door, grabbed the gun out of her bag, and shot him by the tail gate. He ran to the driver's side and tried to get into the truck (R 643). She thought "What the hell you think you're doin, dude, you know.,. I am gonna @ kill you 'cause you were train to do whatever you could with me. '' She ran to the passengers side and shot him through the door (R 607; 643). He fell back. As he walked backwards she went through to the driver's side and shot him again. She may have shot him once more, to make sure he would die (R643). She got in the truck and drove (R607). Back at the house, she told Moore she had borrowed another vehicle. She kept some tools that were in the truck. The next morning she drove around then dropped the truck in Orange Lake by 1-75. She took the license plate off and put it in ditch and covered it with grass. Then she "bumped." (R 610). She believes she took the radio out of the truck (R 611).
The fourth victim was ''the Christian guy" (Siems) (R 611).
He drove a Sunbird (R 616). He picked her up near 100 and 1-95, They went ten miles into the wilderness, off1-75, somewhere in Georgia (R 613). He took a sleeping bag into the woods. They "got nude." "He gave her a problem." She whipped out her gun and said "You know I don't wanna shoot you." He said "You fuckin' bitch.!' She said "No, I know you were gonna rape me."
He said "Fuck you, bitch" and tried to get the gun away from her.
They struggled. A couple of bullets discharged into the air.
She ripped the gun away with her left hand, switched it to her right hand, then immediately shot him (R 611). She really didn't want to but she had to because if she let him live he would reveal who she was. She killed him to silence him, and also out of bitter ness over what he was going to do to her (R 640). She 0 always shot to the mid section so she would know they had been shot. This was the victim whose car she and Moore had wrecked (R 612). Prior to the wreck, she, Moore, and Moore's sister had gone to Sea World in the car. Moore's family thought it was rented (R 640). The victim was bald-headed, about 59 or 61 years old. He had bible under his seat. She found three or four hundred dollars in his suitcase (R612). She bought beer and par tied with the Mooney (R 641). She couldn't reveal the whereabouts of the body in Georgia, since it was way out in the woods, ten miles from the freeway (R630). They were on 95 when it happened. They had travelled past Brunswick, then Fort Stuart (R 632). She indicated that he was lying out in the open and they might find him by helicopter or plane (R633).
She next described being picked up by the fifth victim, a 0 "sausage dude" (Burress) on 40 to Ocala. He took her down a road into the woods (R 617). She was nude. He was dressed (R637).
She took her clothes off first so they would know she was not going to take off. He said "I'm gonna get a piece of ass off you, baby" and called her a whore (R637). He pulled out a ten dollar bill and told her that was all she deserved, and threw the Mooney down (R588). He was going to rape her (R 618). She was standing in front of the truck. HE had the door open (R 588).
HE started grabbing her. They fought. She ran to the driver's side, or back, pulled out her gun, and shot him in the stomach (R 588; 617; 636). He turned and started running. She shot him again in the back. She ran up to him, said "You fuckin' bastard," then shot him again. She shot him three times (R 617).
0 She explained that she shot him again because "the bastard, he's gonna rape me." (R637). She pushed his body into the bushes and tried to cover it with trees. He had a tin clipboard with receipt and Mooney. There was approximately three hundred dollars in it. She said "Shit, you wanted to give me a fuckin' ten dollars and called me a whore." She probably went through his wallet. She went through them all to find out who the victims were (R 617). She checked their pockets for identification. She would find maybe twenty dollars or so in their wallets (R618). His ID indicated his name was "Troy Brussels" or something like that (R 618). She took off half nude
(R638). She drove the truck in second gear down the road. She couldn't figure out how to drive it (R 618). She stopped and threw his things away, on the road where he was shot, then got dressed (R 638). When she got to the end of the road on 40she stopped and harried out of the truck. She didn't even wipe her prints off (R 618).
The sixth victim (Humphreys) to pick her up drove a blue, four door Firenza (R619). He picked her up on 44. They went to a spot on 484 (R 590). She indicated that he was really "...
kinda gettin' bitchy and everything and he had a real attitude. "
(R649). He took out a badge and told here was going to have her arrested for prostitution unless she performed fellatio (R 591). She refused. He grabbed her arm and pulled her out of the front seat (R 591). She grabbed her gun and shot him. He got back up and started trJward her again. She shot him again. When he fell she said "Man, you are an asshole. Why the hell did you..,? I would never hurt you or nothing, man." She felt sorry for him because he was gurgling. She shot him in the head to put him out of his misery. She shot him one more time. She shot him four times. She emptied his pockets to find the car keys. She left one pocket open (R649). She took his wallet (R 593). She grabbed his brief case and other items and threw them in the car and drove off. He had opened the brief case and showed her his badge, She learned that he worked for HERS from items he carried, She flung his things, then got back in the car. She threw the badge away on Spring Hill (R649 - 5 0). She was angry because she did not believe he was a policeman (R650). She went to the gas station near 1-10 (R 619) and dropped the car off. She wiped it, inside and out, for prints (R 620). She threw the license plate in the woods, near the gas station (R 650). She also removed a bumper sticker with something about "state troopers" on it (R 593). She headed out on 1-10 to make more Mooney (R620).
Her attorney advised her again that she should exercise her right to remain silent. This was the equivalent of pleading guilty (R 620). Despite the admonition, Wuornos continued. She indicated that after Moore left she was constantly drunk, jumped out, lonely, and hitchhiked to make more Mooney.
The seventh victim (Antonio) picked her up ina Grand Prix in November, 1990 (R 613). She was drunk. He was older and short. She asked if she could make some Mooney and he said "sure." They went way out in the woods. They stripped. Ash e approached her, he took his wallet out of his back pocket (R 621). He said he was a cop and could arrest her but if she had sex for free he would let her go. She responded that she was tired of people telling her they were cops, she didn'tthink he was, and could get a badge like that from a detective magazine.
He insisted on sex. They struggled. She shot him twice. The HERS guy had told her he was a cop. She thought this man was another faker, trying to get free sex. It made her mad. After she shot him, he fell on the ground, then started to run away.
She shot him right in the back (R 622). He looked at her and said "You cut" or something like that. She said "You bastard," then shot him again. She thought she shot him in the back one more time, near the head. She had turned her head. It was a random shot. She drove away nude. She stopped and put some clothes on, then drove on. The car stopped but started back up.
She returned tothe Fairview Motel. She tookasuitcaseout of the car (R623). She thoughtshekeptit. She threw everything else out, inthe woods, miles away, includinghisteeth, which wereintheglove box (R624). HE had agoldchainandaring.
He took the gold chain off and stuck it inthe seat. She took the ring off. She thoughthewasalive when she removed it, She probably would have said "You fuckin ' bastard, Let me get something outta this.'' (R 625). The two who pretended to be police officers had called her names, The others didn ' t say anything. She shot too fast (R626). The victim ' sbillyclub was found inherwarehouse. She putthetaginthetrunk (R 631). She parked the car inScottsdale (R632).
Ingenericallydiscussingthe murders, Wuornos indicated thateventhoughshe had the drop on thevictimsshecouldn ' t justrunbecauseshewas always nude and would not runlikethat through thebriars inthe woods (R626). She was also afraid because they had fought with her. She didn'tthink she could hold the gun on them until she dressed. They couldrunher over when she came out of the woods. She didn ' t know if they had guns. Once she gothergun, she had toshoot them because she thought theyweregoingtokillher. She didn ' t know Mallory did not have a gun. She was taking no chances. She didn't know what was in their vehicles. She took their property out of pure hatred, andtogethermoney ' worth, as some of them had either no Mooney or hardly any Mooney. The drugdealerwiththe - 45had twentydollarsbuthe wasn't going togiveherany more Mooney (R 627). She didn ' t make living off theitemsshetookbutkept them so she didn't have to buy those sorts of things, She agreed 0 that taking their property was like a final revenge (R628). She didn't tell the victims that she was going to kill them. She had no intentions of killing anyone. She dealt with five to ten people a day. She usually took her Mooney and went her merry way.
If someone rejected her offer, she told them to have a nice day
(R628). She killed because they either attacked her or were "trying to get a free piece of ass by saying they were cops.'' She couldn't leave after she shot them once because a description of her would be all over the place, The only way she could make Mooney was to hustle, She knew they would rat on her if they survived. She also felt that they deserved it, because they were either going to rape or kill her. She was hoping she wouldn't get caught. Mallory was the first. She indicated she shot them because "I felt that ifI didn't shoot'em and 1 didn't kill'em, first of all, if they survived, my ass would be gettin' in trouble for attempted murder, so I'm up shit's creek on that one anyway,...and ifI didn't kill 'em, you know, of course, I mean I had to kill 'em... OK it's retaliation, too. It's like, you bastards. You were gonna hurt me. So now I ' m gonna hurt you. "
(R 629). All of the men she dealt with were thirty-seven or older. She wanted to deal with people who didn't use drugs. She looked for clean, decent people. The last year she kept meeting men who were ugly to her (R 630). When she pulled the gun, it was because they were fighting or were going to rape or kill her
(R639). She threw clothing and other items away. She kept what would be worth while, so she could make some Mooney off it (R 645).
She used the same gun in each of the murders (R 588). She threw the gun, flash light and some handcuffs in the Walter, by the bridge, near Fairview (R 647). The gun was recovered from Rose Bay (R 612). She admitted to murdering seven men in all (R594;
Entry of Plea On March 2 6, 1992, the Office of the Public Defender, Fifth Judicial Circuit, moved to withdraw as counsel on the grounds that Wuornos had retained private counsel (R 247). Stephen Glazer filed a notice of appearance (R 248; 658; 680). He had a contract to represent Wuornos on all pending cases in Marion, Citrus, and Pasco County (R 655). Wuornos indicated that the Assistant Public Defenders had the opportunity to write to her on death row but did not get in contact with her, whatsoever. She @ felt they were not concerned about her (R 681). Mr. Glazer had known Wuornos for about a year and two months. He visited her and received calls from the jail. He knew about the doctors' reports. He was present with one of the psychologists. He was at the trial in Deland (R 688). He had been counseling and advising her for about eight months (R708). Just prior to Wuornos entering pleas on March 3 1, 1992, the trial court granted the Public Defenders motion to withdraw (R248 - 4 9, 655-59).
Wuornos signed a waiver of rights and agreement to enter a plea to two counts of first degree murder and robbery witha firearm for the MariGn County murders of Charles Humphreys and Tray Burress and one count of first degree murder and robbery witha firearm in the Citrus County murder of David Spears. The agreement indicated that "I wish to enter my plea to the offense(s) as set forth above because T do not contest the charge(s) and I have no other reason." (R 256).
On March 3 1, 1992, with the representation and assistance of Mr. Glazer, Wuornos waived all of her rights and entered nolo contendere pleas to all three murder and armed robbery charges (R 655-746). Judge Thurman had indicated that he had no objection to Wuornos entering a plea in the Citrus County case before Judge Sawaya at the same time she pleaded to the Marion County cases.
Mr. Glazer wrote in the Citrus County case number on the waiver At the plea hearing Wuornos indicated she understood she was charged with first degree murder and robbery witha weapon and could be sentenced to life imprisonment ar death fora first @ degree murder (R 660). She was informed that the maximum possibility penalty for the armed robbery charges was life imprisonment and there was a mandatory minimum sentence of three years in which gain time is not calculated (R 685-86). She indicated that no representations had been made to her concerning which sentence she would ultimately receive (R 660). Wuornos was sworn by the court. She acknowledged she had previously entered not guilty pleas in the Marion County cases and indicated she understood that she had the right to persist in such pleasant proceed through jury trial. She was aware that the entire month of May had been reserved for her trial (R662). She understood that Judge Sawaya would do everything in his power to ensure that Fair and impartial jury was picked and that she got a fair trial and that no one could take that option away from her (R 8 663). Judge Sawaya explained to her that since the death penalty was a viable option she had nothing to lose by letting a jury hear the evidence and decide whether or not she is guilty. The judge reiterated he would do everything in his power to ensure that she would get a fair trial (R 663). Wuornos indicated that she understood. The judge asked "Don't you think it would be to your best interest to proceed to jury trial and let them make that decision? There is always that chance... ' I Wuornos responded that she would read a letter explaining her reasons.
She indicated "I'm pretty happy with what I'm doing. I'm very satisfied and I'm very sure of myself.'' She indicated she understood that by virtue of entering a plea of guilty or no contest she would be giving up the right to a jury trial or a trial before the court (R665). When asked if that was what she wanted to do, she responded "I've seen enough -- I've seen enough of Daytona. Yes, sir; and I'm very happy with whatI'm doing."
Judge Sawaya then stated:
Well, this is Marion County. This is not Daytona-- and I have absolutely no comment to make on what happened in -- in Daytona Beach. All I can tell you is that we are set. We are ready to go and, as I told you before, I will do everything in my power to ensure that you get a fair trial.
And 1 will work as hard as I can to do that; do you understand that? And so what happened in Daytona Beach does not necessarily mean that is what is going to happen here witha jury picked in Marion County under the facts and circumstances of these particular cases.
Wuornos indicated that she understood (R 665). She still wished to change her plea to no contest (R 665). She understood she 0 could be electrocuted on both cases (R 666).
She further understood that by entering a plea of no contest she would be giving up the right to confront and cross examine state witnesses and to be present for each witness' testimony and that the state would not have to call their witnesses (R 667). When informed that she had the right to subpoena witnesses to come in and testify in her behalf and would waive such right by entering a plea, Wuornos responded "Oh, that's just fine" (R 669). She understood that by entering her plea she was giving up the right to make the state prove each and every element of each offense beyond and to the exclusion of every reasonable doubt. She understood that by entering plea of no contest she was neither admitting nor denying the allegation but as far as sentencing was concerned the plea had the same effect asa guilty plea; there was absolutely no difference; it is the same asa conviction (R 669). She understood there would be no appeal as to any finding of fact by a jury, since she was giving up her right to a jury trial (R 670). She understood that she had the right to remain silent during the course of a jury trial and the jury could draw no inference of guilt from such silence and that she was giving up such right (R670 - 7 1). She also understood, conversely, that she had the right to testify in her own behalf and would be giving up that right, as well (R 671). She was informed that she had the opportunity to present any legal defense to the charges including but not limited to imroluntary intoxication, insanity, and self defense (R 671-72). She understood that right and the fact she was giving it up (R 672). Shealso understood she was giving upra the right to have pretrial motions, such asa motion to have confessions suppressed, presented or ruled upon (R672). She indicated that she understood the legal rights the judge had gone over as Mr. Glazer went through everything with her and made sure she understood it. She had no questions and was not confused about anything (R673).
She recited to the court that she attended school until the ninth grade then dropped out because she was living in the streets. She has studied such things as archeology, theology, sociology, anatomy, the brain and the nervous system when she was in prison in the early eighties (R 673-74). She taught herself to read and write (R674). She fully understands the English language. She has held a job and supported herself. She became a prostitute because she had warrants out for her arrest. Before @ that she had jobs in PVC, quality control, lawn maintenance, painting and she had her own pressure-cleaning business (R 674).
Wuornos indicated that she was not under the influence of any drugs, medications, narcotics or alcohol, She had not used drugs since she was seventeen years old. She stated " I don't touch drugs; I hate drugs." She further indicated that she was not under any medication from the jail (R675). She further stated "I know what I'm doing. I was just a beer drinker, and that's about it." (R676). She indicated she had never been adjudicated mentally incompetent or mentally insane. She volunteered, however, that "I have to say in my confession that I was mentally incompetent because I was withdrawing from a fourteen-year alcoholic habit, and so the last four years with * Tyria I was really heavy. So in my confession Was really incompetent and going through D.T. ' sand everything so I-.
judge explained again she had the right to test the validity of " The those confessions and have the court decide if they are invalid and should not be heard by the jury. Judge Sawaya pointed out that one of the defenses she might have is the fact that she had an alcoholic drug problem and was not mentally competent at the time she made the confessions (R676 - 7 7). She understood that it was entirely possible the court would suppress those confessions and the jury would never hear them and she was giving up the right to have the court make that decision by entering plea of no contest (R677).
Wuornos stated that no one had forced, threatened, coerced or intimidated her to enter these pleas. It was something she 0 was doing of her own free will (R 678). She had thought about it for ''a good year and two months or so... after saw how the law enforcement was working this.'' (R679). She later stated...the way Isawthe law enforcement work and the system work, I am not very happy with it at all.
I am not going to get a fair trial and I am not -- I just don't want to go through any more trials.
And I have -- when I read this you'll understand.
And I ' m very set in my mind with what I'mdoing.
I'm very happy with what I'm doing, and I'm very content with -- between me and God with what I'm doing (R 683).
It had been emphasized, again, that the death penalty was a possibility and that she had nothing to lose by going to trial before jury. Wuornos had responded "I know; and Feel like I've got nothing to lose either about the sentences that I might receive, So I ' m just -- I ' m very set in my mind what I'm doing.
It's something between me and my religion and everything else. '' (R 682). She acknowledged that she went through a jury trial in Volusia County and was familiar with all the rights the court had just discussed. She further acknowledged she had sufficient time to think about the rights and the consequences of giving them up.
She then stated "The way I see it, you can have rights, but when you have the enforcement that are out numbering you and you're the only one it -- it doesn't matter; it just doesn't matter." (R 683). The judge indicated he wanted to make sure that this was not a spun-of-the-moment thing. Wuornos assured the court " OH, no; no. I've been thinking about this for the longest time."
She was convinced that it was in her best interests. The judge cautioned that it may be in her best interests to let a jury decide, "because if a jury decides that you are not guilty, you @ are not guilty--- then there is no penalty which can then be imposed." Wuornos responded "This is not just a carnal thing;
it's a spiritual thing for me -- that I'm doing, too; so, I feel just fine; and yes, sir; I understand everything you said.!! (R wuornos indicated that no one had promised her anything or made any representations to her as to what sentence she would receive (R687).
At the behest of the state the court inquired of Wuornos' counsel if he had any reason to believe that Wuornos was incompetent, mentally or otherwise, to enter the plea (R 687).
Mr. Glazer indicated that he had known Wuornos for approximately a year and two months; he visited her; communicated with her; and received calls from the jail. He then stated "I know that she is competent to stand trial. I know about the doctor's reports, and I was present at the Deland trial," He acknowledged that he was with one of the psychologists. Mr. Glazer further volunteered "I understand and I personally believe that Aileen Wuornos is totally competent to enter this plea. She has never exhibited anything other than competency and is under the full understanding of what she is doing. " (R688).
Judge Sawaya cautioned Wuornos that if he had any doubts that Wuornos did not know or understand what she was doing he would not accept her plea. He then indicated he would proceed to establish a factual basis for the plea in each case (R 689).
In case number 91-463, concerning the murder of Troy ~urress, Wuornos acknowledged that she killed him witha.22 caliber firearm, as alleged in the indictment (R689 - 9 0). It happened in Ocala off Highway 19 on 40 (R 697). Wuornos stated "I just straight out killed him." (R690). Judge Sawaya told her he felt it would be in her best interests to let a jury decide.
She indicated that she wanted to go on with the plea. Judge Sawaya then stated "I want you to tell me why you did that then."
Wuornos responded:
Richard Mallory violently raped me and I had a psychological -- through the psychological trauma and the violent way that he raped me each -- before any other -- I mean, I've been raped before, but I've never been violently raped as Richard Mallory did. And I had this set frame of mind that anybody that came along while I was hook ing -- made any move -- any attempt, whatsoever, to start to rape me witha weapon or the physical -- or either physically -- I was going to immediately put my best efforts in to stop it, and I would basically have to fight, and I would win, and I would shoot them -- immediately -- immediate firing (R692).
Wuornos stated that this man "showed me signs of attempted rape."
Judge Sawaya made her understand that this was a possible defense to put before a jury and that she was giving up that right (R 692-93). She indicated she shot Burress witha.22 nine shot but "the way cops have destroyed the cases and everything else -- I ' m not going to get a fair trial. I don't care what. I'm entering this no contest no matter what, and I straight out killed these guys, and that's just the way it is. '' She stated that there was no robbery (R 693). Then she indicated she took a camera, radar detector, ring, and.45 caliber pistol. She kept some of his things and pawned it off. She took the items after she had killed him (R 694).
The prosecutor indicated that the state would introduce evidence that on July 3 0, 1990, Troy Burress was last seen alive.
He was employed asa driver fora meat company and was collecting cash on his route. His fully clothed body was found on August 4, 1990. The cash was missing from his person and vehicle. The cause of death was multiple gunshot wounds from a, 2 2 caliber revolver with six right twist (R705).
As to case number 91-304, dealing with the murder of Charles Humphreys, Wuornos indicated that Humphreys had posed as a police officer, witha worn-out badge ina new folder, and had attempted to rape her, sohe shot him. They struggled for the weapon, she shot him, then shot him some more, fora total of seven or eight shots. It took place at 484 near Belleview (R 696). She was informed by the judge that, again, she had a possible self-defense claim that could be presented to a jury (R 696). She indicated she wanted to give up the right, stating:
I -- killed in self-defense but I still can't live with myself -- with it -- and it's just a religious thing I feel that I have to do...
because I love the Lord, God. And I just feel that 1 took a life so it's time for me to go. I took a life so I ' m paying for it.
She indicated she took Humphreys' brief case, handcuffs and billy club and threw everything else away (R 698). She kept the handcuffs and billy club for evidence but the police threw them away (R698). She took the items after she left him lying and he had died. She took off in the car (R 699).
The state indicated it would introduce evidence that Charles Humphreys was last seen alive on the afternoon of September 11, 1990. His fully clothed body was recovered in Marion County on September 12, 1990 (R 705). He died asa result of multiple gunshot wounds from a.22 caliber revolver with six right twist. His wallet, Mooney, and other personal effects were missing (R706). A cart ridge case from the. 2 2 with six sight twist was recovered along with Humphreys' personal property (R As to case number 91-112, the Citrus County murder of David Spears, Wuornos indicated that Spears had a lead pipe full of cement, attempted to rape her, and she shot immediately. She guessed that he was sexually dis ordered. It occurred off of highway 19 near Homosassa Springs. She was hitchhiking. She had been a hitchhiking prostitute for six years (R 700). All of these men were strangers and not her regular clients. She killed Spears witha - 2 2 nine shot (R 701). She threw everything he owned away, including $ 250. 0 0 in U.S. Bonds. She just took the lead pipe and $100.00. Again, she understood that what she was saying was that she acted in self-defense and would be giving up the right to present that defense to a jury by entering a plea (R The prosecutor indicated that the state would introduce evidence that Spears was last seen alive on May 19, 1990, that he had cashed a pay roll check and had Mooney; his body was found on June 1, 1990, in Citrus County; he was killed by multiple gunshot wounds from a.22 caliber pistol which had six right twist in the Barred; when he was found none of the Mooney was on him (R The state would also introduce Wuornos' statements to Volusia County Sheriff's Deputy Larry Horzepa and Marion County Sheriff's Deputy Bruce Munster in which she admitted being the person who had shot each of these individuals and admitted to taking what constitutes a robbery. Asa result of Wuornos' statement, as well as the testimony from Tyria Moore, a.22 caliber revolver with six right twist was recovered (R 706).
The state would also introduce evidence of four other homicides committed ina similar fashion in other jurisdictions, which Wuornos also admitted, as proof the murders were not committed in self-defense, were not justifiable homicides, but were committed in the course of a premeditated design to effect the death of the men during the course of a robbery (R707).
Wuornos also revealed that Mr. Glazer had explained the a legal rights she would be giving up entering of the pleas
(R 708); discussed the
(R 709); possible sentences, ultimate sentence, death; nature of the bifurcated proceedings; and penalty phase aggravation and mitigation (R 710-11). She indicated that she had sufficient time to discuss the plea with Mr. Glazer and that she was satisfied with his services (R712).
When the judge informed Wuornos she would not be sentenced that day she stated "I just hope I get sent back because Marion County has been doing a lot of abusing me at the County Jail, and I just want to get back to death row." (R 711). She, indicated, however, it was not a factor in her entering her plea, She didn't think they had any idea she was entering a plea (R712).
Wuornos was finally advised that the convictions resulting from her pleas could be used in aggravation of future sentences in Pasco or Dixie County cases (R 714) or future homicides that may come up anywhere (R716).
Wuornos was then given the opportunity to read a lengthy statement she had prepared. She indicated she had become a newborn Christian with the help of her newly adopted mother. In order to get herself right with God before she dies, she is coming forward in all honesty (R718). She indicated she was sorry. God has forgiven her prostitution and the killings she could not avoid because of her hustling (R 719). She indicated she was sorry she had taken the victims from their families but the fact that she is a prostitute does not give anyone the right to rape, injure, or kill her (R721). She railed against the I' ladderclimbing, lime lighting and political prestige that went on in her cases, as well asa libelous media campaign designed to convict her (R721 - 2 2). She condemned alleged book and media negotiations entered into by investigators before her arrest (R 722). She indicated a movie portrayed her as a man-hating lesbian who only killed to rob but she went through dozens of vehicles a day and if she had not acted in self-defense, there would have been hundreds of victims instead of only seven (R 723). She indicated she wanted to get right with God before she is strapped into the electric chair (R 724). She ravaged her former lover, former suspect, Tyria Moore, labelling her as "materialistic and Mooney hungry" and indicated she was given immunity, police protection, a vehicle and fifty thousand dollars for therapy for help in creating the claim for the movie. She also heard Moore was to receive more Mooney from the pro fits, She also indicated that her sister, Lori and brother, Barry, had not seen her in seventeen years when they took the stand and were involved with the police in movies and books (R 725). She lamented that she had been set up to confess by Tyria Moore and was then interviewed by two of the investigators involved in the movie and her statements indicating the murders were self-defense went ignored (R726). She explained that she only pawned four items for food until she could get back out when the coast was clear. Prostitution was all she could do. She didn't want to go to prison and lose Tyria and her animals, so she kept on hook ing
(R727). She indicated she didn't came forward after Mallory's death because of society's lack of concern fora whore who would not be believed (R 728). They also would have distorted everything because she was an ex-con (R 728). They withheld statements from her confession so she could be portrayed asa dangerous female serial killer who killed to rob (R729). Yet she didn't even withdraw Mooney on the victims' credit cards after finding some of them didn't even have twenty dollars on them (R 730). She met hundreds of guys a month and there was a span in each killing. The bodies were not dismembered as in the case of serial killers. She was the, only one tortured (R733). She stated that a good "Sherlock Holmes" would later crack the conspiracy open and she hoped she would be alive to see it. She hoped the no-good cops see prison, themselves, in the near future
(R 733). She complained that during the trial for the murder of Mallory the prosecution had strewn items from the storage bin in a mess across the floor claiming they came from the victims when in fact she and Tyria owned those items long before her first encounter with Mallory (R731). Ina deposition Tyria had admitted all the items were hers (R732). She complained of false accusation and label designed to engender bias (R 732).
She reiterated Mallory did violently rape her, causing psychological trauma. She decided not to allow it to happen again. Each victim used physical force ox: a weapon to rape and possibly kill her. She indicated that she pleads "no contest in self-defense" but also to end all trials, which are full of lies by cops and the state (R734). She concluded "I was a prostitute who only truly defended herself... I plead no contest, with it still in my frame of mind of self defense, but still want to plead no contest and end all this 'jazz' because I ' msick of it. " (R 735). The court responded "Okay, Mrs, -- Mrs. Wuornos, you will get your wish. " (R735). Wuornos thenindicatedshe hoped she would gettheelectricchair as soon as possibletogetoff this " crooked, evil, planet.'' She wanted no part of a system where the people OT workersarelike " disciples of Satan. " She indicatedshedidn ' teven want toliveinprison, She wanted to get off this planet and go toGod and liveinheaven where there ispeaceand harmony becauseshehasnever seen so much evil (R 735-36). She saidthatlawenforcementofficers had destroyed her life. She alsodidnot want toputthe families through any more stress. She also stated " plus, thestate ' sgoingto save them aheck of lot of Mooney now. But that ' s okay, I ' m going to spendaheck of a lot when 1findadarn good " SherlockHolmes. " Wuornos indicated she had not changed her mind about entering a plea. She stated " I ' d rather find new evidence somewhere down the road and haveatotally new trial... even Volusia (R 737). She further indicated that she wanted to proceedwithherplea, then stated " andtherewill probably be a new trial down the road someday if1don ' tdie by then (R737).
Iam sure Munster and Horzepa and thestate attorneys and all of them arereallygoingto work on myelectrocution so --- just to make -- somylittle " Sherlock Holmes" won ' tgetinvolved. 'I (R 738). She clarified that what she meant was that her " Sherlock " would come through some day and the cops would becharged and go to prison. That's what she meant by finding new evidence inthe Volusia County case. She had been told that even if the Volusia County conviction was reversed these three cases would not be affected (R739). She acknowledged she had no expectations of a trial in these cases (R 740).
The court found that Wuornos was alert, intelligent, fully understood and comprehended the proceedings and the rights she would be giving up. The court further found she did not appear to be under the influence of drugs, narcotics or alcohol and had made a knowing and intelligent waiver of rights (R 740). She understood the consequences of entering the plea, and entered the plea freely and voluntarily and had not been coerced, threatened, forced, or pressured (R741). The judge also found that there was a factual basis for the plea and that Wuornos felt it was in her best interests to enter the plea (R 742). The judge accepted 0 her plea of no contest and adjudicated her guilty of each of the charges (R741).
Wuornos indicated that she had, indeed, read the waiver of rights and agreement to enter a plea form in the three cases, and understood everything contained in the document. Her lawyer also went over it with her, She and her attorney acknowledged the signatures as their own. Mr. Glazer saw her sign it (R 744).
Mr. Glazer tendered the document freely and voluntarily. The court made it part of the plea colloquy (R 744-45).
Penalty Phase The details surrounding the murders of Humphreys, Burress, and Spears, previously discussed, were presented in the penalty a phase.
The circumstances surrounding the death of Richard Mallory 0 were also presented. Mallory's murder in December 1989, was the first (R 613). His car had been found on December 1, 1989, on a fire trail off John Anderson Drive in Ormond Beach (R599). It was an isolated area (R601). The doors to the car were locked and the keys were missing (R608). Mallory's personal property was found buried in the sand 3 0 feet behind the car. The items included his wallet, driver's license, business cards, and tumblers. The car had been wiped down for prints (R608).
Mallory lived in Clearwater (R 600). His body was discovered on December 13, 1989, ina wooded area off U.S. 1, a quarter mile north of 1-95, five miles from his vehicle (R 601). His front pockets were turned out and his belt was off to the side (R 604).
HE had been shot four times (R 624). He received one shot to his 0 right side as he was sitting behind the steering wheel. He received three more rounds to his torso (R 625). His body had been covered by a red carpet. A small portion of his hand was sticking out. He was wearing blue jeans, a short-sleeved white shirt and brown laafers (R 602). He was decomposed from t).1'-3 collar bone to the top of the head (R 603). He was fifty-one years old. He was self-employed, repair ing VCR's and TV's. He was 5 ' 1 1 " tall, 165 pounds, wore dentures and glasses. Four bullets were recovered from his body (R606). Mallory's Polaroid instamatic camera was found in Wuornos' bin at Jack' Mini- Warehouse (R 610).
The bullets from the bodies of Humphreys, Burress, Spears and Mallory were fired from a weapon having six lands and groves witha right-hand twist, the same as Wuornos' 9 shot. 2 2 (R 635).
The videotape of Wuornos' confession was published to the @ jury by the defense (R 653).
Wuornos indicated that she did not wish to return to the courtroom for the defense case in the penalty phase and continued to waive her presence (R 656).
It is merely Arlene Pralle's "belief that her relationship with Wuornos was the result of "divine intervention," based on the fact that Jesus told her to write to Wuornos while Wuornos had, prior thereto, implored God to senda Christian woman to befriend her (R663). Regardless of whether Wuornos was guilty or innocent, Pralle loved her, unconditionally (R664). It was Pralle, who had not known Wuornos asa child, who testified as to the 'circumstances of Wuornos' childhood (R 666). Pralle learned about Wuornos' childhood from a friend of Aileen's, Dawn Neirnan, 0 who grew up with Wuornos (R 695). Pralle confirmed the facts with Wuornos (R667). Barry Wuornos had previously denied under oath that any of this ever happened. Dawn and Wuornos both told Pralle that he lied and was in the service at the time (R696) ~ Pralle did not talk to Lori Grody about what happened (R 696) Pralle also testified that Wuornos' grandmother loved Wuornos and her bother Keith (R 666). Wuornos completed the tenth grade of school (R 670). Pralle stated that Wuornos has terrible opinion of the Marion County Police Force because of three officers she believed were involved in book and movie deals (R 679). To this day Pralle does not believe that Wuornos was serial killer. She admitted that, asa Christian, she does not m condone the death penalty and there are no circumstances under which she would find it appropriate (R 706). Pralle screened all.
@ entertainment related enquiries for Wuornos. Pralle has appeared on a lot of talk shows and went to New York to appear on several, including both syndicated and nationally broadcast shows. She once received compensation of $ 7, 500 (R707).
After the jury was removed the judge questioned Ms. Pralle.
Judge Sawaya had viewed Pralle on television the night before in an interview where she stated that the proceedings were a waste of time and taxpayer's Mooney, and that Wuornos should be given the death penalty and her wish granted (R 710). Pralle claimed that she was only echoing Wuornos' feelings in the interview but what she had actually testified to was from her heart (R711).
The judge noted that Pralle had heard him explain to Wuornos there has to be a penalty phase, Pralle then indicated she hoped Wuornos would change her mind (R 714).
When Bobby Lee Cops locked Wuornos out of his car Wuornos not only threatened Cops, but indicated that she had killed before. As she tried to open her purse, she told Cops " 1 ' 1 1 kill you like I did all them other fat, old, mother-fucker men."
(R779). This encounter took place on November 4, 1990 (R773).
Dawn Neiman told Investigator Padgett that she did not recall any abuse. She did not tell him Aileen had a "great life. 'I There was no testimony concerning "lack of nurturing" (R Prior to the three subsequent trips with Lieutenant Laxton in which Wuornos was calm, not only had Wuornos gone to court but Laxton had reported the previous events (R796).
SUMMARY OF THE ARGUMENT
I. Wuornos' claim that her pleas of nolo contendere were not intelligent and voluntary should have been presented to the trial court on a motion to withdraw the plea. Wuornos knew, at least by the time of sentencing, that her presence could be waived and at that point in time could have moved to withdraw her plea, therefore, this issue is waived. Alternatively, Wuornos had no reason to believe that she would not get a fair trial. The record reveals that Wuornos' motive for entering the plea was to take responsibility for her actions. The lower court was not under a duty to apprise Wuornos of the possible collateral consequences of her plea. Florida Rule of Criminal Procedure 3.172(c)(iii) does not require a trial judge to inform a defendant that she can absent herself from trial, The failure of the trial judge to advise Wuornos that she must serve no less than twenty-five years of a life sentence before becoming eligible for parole did not render her plea involuntary. Since Wuornos did not plead guilty but instead entered a plea of nolo contendere, the mandatory minimum sentence was not triggered by the plea, as such plea was entered without any agreement at all as to the sentence. Wuornos, therefore, did not choose an alternative sentence without full disclosure. The only choice she made was to avoid a trial.
The trial court's inquiry regarding the factual basis for Wuornos' plea was sufficient. In the instant case thecourt determined the existence of a factual basis for the plea by receiving evidence, a proffer of evidence by the state, and the in-court admissions of Wuornos herself. The fact that Wuornos raised a possible defense does not vitiate her plea. A nolo contendere plea does not admit guilt or the allegations of the charges but rather communicates that the defendant simply chooses not to defend against those charges. In any event, Wuornos understandingly waived any right to a claim of self-defense, The trial judge properly determined that Wuornos felt it was in her best interest to enter the plea.
11. No reasonable grounds were present to suspect that Wuornos was incompetent to enter a plea and the trial court had no duty to usa sponte order a hearing. Wuornos' attorney stipulated to her competence, after being present at her previous trial, reading the doctors' reports, and communicating with one of the psychologists. The purpose of a nolo contendere plea is to a formally declared that a defendant will not contest the charges.
Such a plea is used where an accused is unwilling to confess guilt but does not wish to go to trial. Wuornos' statements regarding self-defense do not indicate any ambivalence in entering her plea. Her statements do not even reflect that she felt she had a legally sufficient defense though she may have felt, ina uniquely personal, moral sense, that she had acted in self-defense. Contrary to appellant's assertions, Wuornos' statement was fairly eloquent and documented her various complaints with the legal system. Her behavior, rather thaii reflecting a state of incompetency, was merely consistent with an unwillingness to confess guilt attendant to the entering of d.
nolo contendere plea. The record reflects that Wuornos understood what was going on, was able to assist in her own defense, consult with counsel and fully understood the ramifications and consequences of entering a plea.
111, Wuornos' complaints as to the admission of similar fact evidence is procedurally barred. She is entitled to no relief in any event. Wuornos' confession was published to the jury by the defense in the penalty phase. It contains statements indicating that she had acted in self-defense. Evidence that she had picked up Bobby Lee Cops, solicited him for sex, then became aggressive when he refused her offer, threatened him and reached fora gun in her purse, is relevant to her claim of self-defense and demonstrates a modus operandi of way laying travelers with bogus stories of distress then solicit ing them for sexual acts whereby they would be taken to an isolated area and robbed and killed- 0 Evidence that Wuornos had a previous religious conversion is certainly relevant to the issue of the genuine ness of her present religious conversion, which was offered as the mitigating factor and was the crux of Arlene Pralle's testimony. Since counsel raised no specific objection below as to this evidence any claim of error regarding it is now waived. That Wuornos had threatened prisoner transport personnel with physical violence was relevant to rebut Arlene Pralle's testimony that Wuornos had become less verbally and physically aggressive. Since no objection was inter posed below concerning this testimony, the issue is alsc:
waived for purposes of appeal.
IV. Only a general objection was inter posed when Arlene Pralle was asked in the penalty phase about her knowledge of Barry Wuornos denying under oath ina previous trial that any childhood abuse of Wuornos had occurred. No objection was made at all to the question regarding Lori Grody. No objection was raised when an investigator testified that he had interviewed Barry Wuornos and Lori Grody and they indicated that no physical abuse had been directed at Wuornos, and that Dawn Nieman had indicated she had seen no abuse directed toward Wuornos and had never discussed it with Wuornos. This issue is procedurally barred for lack of proper object, m.
V. The jury's death verdict was not tainted by evidence of non statutory aggravation. It was the defense position that a prior death sentence was a mitigating factor. The prosecutor inquired as to whether such argument would be made by defense counsel and whether he could anticipatorily discuss the prospect of an appeal. Defense counsel indicated that he had no problem with the prosecutor discussing an appeal. Defense counsel did not object to the prosecutors statement. No motion for mistrial was made before the jury was instructed and retired to deliberate. Any claim that the prosecutor improperly discussed an appeal of a prior death sentence is procedurally barred and waived.
VI. The trial court did not improperly limit appellant's voir dire examination. Defense counsel's statement that if Wuornos were sitting there she would want to find twelve people free from opinion as to her fate and that if any of the jurors were sitting there they would probably want the same thing was, if not a Golden Rule argument, at least irrelevant. Since the aggravating and mitigating circumstances must be accorded weight by the jury and weighed, defense counsel's statement to the jury that they never have to vote for death if the defense can show any bit of mitigation is a blatant misstatement of the law. A presumption of innocence does not obtain in the penalty phase. The purpose of the penalty phase is to determine the appropriate punishment.
In any event, the law applicable to the case should be given to the jury by the court and not counsel.
VII. The death sentences are justified and appropriately based on valid aggravating circumstances and weak mitigation.
The trial court properly found that the crimes were committed during the commission of a robbery/pecuniary gain.
Wuornos entered a plea to the armed robberies of these victims.
She had no Mooney before the victims' deaths and after their 0 deaths had their property and Mooney known to be in their possession was missing after the murders.
The trial court properly found that all three murders were committed to avoid a lawful arrest. Wuornos' own statement reveals that she felt that if she did not kill the victims she could be arrested for attempted murder if she were caught.
Wuornos had a pattern of shooting victims during the commission of robberies and demonstrated a calculated plan to execute all witnesses.
The felonies were committed ina cold, calculated and premeditated manner. Wuornos planned in advance to leave no witnesses to her robberies. In numerous statements she indicated she had to kill the victims because if she left a witness she0 would be caught. In furtherance of such plan she indicated that she always shot to the mid section. Wuornos ensured that the victims were dead when she left.
The murder of Charles Humphreys was heinous, atrocious or cruel, Humphreys' suffering was apparent from Wuornos' statement that she shot him in the head to put him out of his "misery. 'I Humphreys clearly suffered mental anguish as he twisted and turned to protect himself as Wuornos shot him multiple times.
The post ure of the defense below is that Wuornos was accepting responsibility for her actions and had not committed the crimes because she had been abused, raped, had a baby at thirteen, or was an alcoholic. The claim of abuse in the grandparents' home was not supported by the evidence. The lower court found that even considering such alleged abuse, the 0 aggravating factors outweighed the evidence presented in mitigation. Wuornos' actions in committing murder were not significantly influenced by her childhood. That she was an alcoholic did not mitigate her crime in view of a clearly established robbery motive and planning. What is now offered as direct mitigation was only offered below as historical incidence pertaining to her direct claims of abuse or religious conversioii which were fully considered by the trial court. In the event any aggravators were improperly found, considering the weak mitigation, death is still the appropriate sen-cence and any error is harmless.
VIII. The various attacks now raised on the ccnstitutionality OF a section 921.141, Florida Statutes (1993) and the jury instructions were not raised below and are procedurally barred.
Such claims have previously been rejected and are without merit, in any event.
ARGUMENT
@ I. WUORNOS' PLEAS OF NOLO CONTENDED aRE CONSTITUTIONALLY VALID The Pleas Were Intelligent and Voluntary Appellant contends that her motivation in pleading nolo contendere was to avoid another unfair trial. She then states, somewhat incongruously, that her motivation was to leave Marion County and return to her prison cell on death row. She complains that the trial court failed to explain her right to waive her presence at trial. She concludes that she did not have sufficient information to intelligently enter her pleas, ego, her pleas were involuntary.
Issues concerning the voluntary or intelligent character of a plea must always be presented tothe trial court on a motion to withdraw the plea. Tillnzan u. State, 522 So, 2d 14 (Fla. 1988).
@ Wuornos' threat to withdraw her plea if she was not sent back to death row during the penalty phase hardly constitutes a proper motion to withdraw (R 3 - 3 6). This issue is not properly before this court, Appellee would submit, additionally, that Wuornos has waived the right to raise this issue. A trial court, in its discretion, may permit a defendant to withdraw her plea at the sentencing hearing. Little u. State, 492 So. 2d 807 (Fla, 1st DCA 1986). Having won the tussle at the penalty phase and having been sent back to Broward, Wuornos knew then, if not before, that she could waive her presence, and could have acted on her threat to withdraw her plea, had she desired to have a guilt phase trial at which she would not be present.
The record reflects, first of all, that Wuornos had no reason to believe she would not get a fair trial. Judge Sawaya assured her he would do everything in his power to ensure that she received a fair trial; just because she felt she had not received a fair trial in Daytona Beach did not mean she would not get a fair trial in Marion County. Wuornos indicated she understood (R 663; 665). While Wuornos obviously had some criticism concerning the manner in which the Volusia County trial proceeded, it is the height of speculation to say that her prime motivation in pleading was to avoid another unfair trial.
Wuornos' position below was that the entering of a plea was "between me and God;" "between me and my religion and everything else;" "this is not just a carnal thing, its a spiritual thing for me -- that I'm doing, too, so, I feel just fine.'I (R 682;
0 684). She indicated that although she had killed in self-defense she could not live with herself. It was a religious thing she had to do. She had taken a life so it was time for her to pay for it (R 698). This position is consistent with her confession wherein she made statements such as "I deserve to die... I took a life," "I feel guilty," "I am guilty," " I ' m willing to pay the punishment for that." (R 603; 606). This position is consistent with the waiver of rights and agreement to enter a plea that she signed which indicates that "Iwish to enter my plea to the offenses because I do not contest the charges arid I have no other reason." (R 256).
Appellant takes a leap in logic Sy relying on her statements in the later penalty phase to support her reasoning a. t the time of the entry of the plea. As previously stated, at the time of entering her plea she had reason to understand, and indicated she understood, that she would be provided a fair trial. There is no indication on the record that she would not sit through a fair trial. The only indication was that she did not wish ta contest the charges and, therefore, wanted no trial at all. Appellant comes to a contrary conclusion by citation to her statements in the penalty phase where she indicated she wanted to leave Marion County and return to death row. Appellant does not suggest how the trial judge is supposed to have divided this reasoning on her part when she said no such thing at the time she entered the plea. In fact, she indicated that the Marion County jail was not a factor in entering her plea. Her agitation at the later possibility of being housed in the jail simply cannot be catapulted back in time to support counsel's present speculations. Moreover, Wuornos had the wherewithal to willfully absent herself from the penalty phase and nothing indicates that she would not have done the same thing at a trial, had she so desired one.
Wuornos' statements up to the penalty phase indicate a desire to take responsibility for her actions and suffer the penal ties for her misdeeds. On appeal, counsel seems to he taking a position inconsistent with that of his own client.
Counsel would be hard pressed to demonstrate how any alleged error could be prejudicial when his client would only plead again @ in the same fashion.1 Wuornos' strategy in the penalty phase reveals a consistency with her prior actions and reasons for entering a plea. Arlene Pralle testified that Wuornos took total responsibility for her actions, could not handle the guilt anymore, and had undergone a spiritual rebirth (R677; 684). The record hardly supports the assertion that Wuornos' entire course of action was dictated by an after-occurring flash of temper concerning the Marion County Jail.
Acourtis not under a duty to apprise a defendant of all the possible collateral consequences of his plea. State. CO ~ CYU, 520 So. 26 40 (Fla. 1988). Likewise, the court is under no obligation to discuss tangential considerations. Florida Rule of 0 Criminal Procedure 3. 172 (c) (iii) requires that a defendant be advised only of constitutional rights he or she would be giving IF this is not the case, then alternatively, Wuornos, herself, is manipulating the system. The record reflects a smattering of a cont rite, repentive, Christian Wuornos taking responsibility for her deeds and asking the jury to extend equally Christian mercy. The fall-back Wuornos is a bitter victim of not only wife's circumstances but the entire justice system. The hope, perhaps, was that if the jury didn't accept her late redemption as mercy-worthy that a higher court would see no harm in finding a hypertechnical violation so that a possible innocent could reconsider her rash decision to plead. The problem with this is that there is no doubt at all of Wuornos' guilt. She had nothing to gain by going to trial. In entering a plea she could appear heroic and repentive. Failing that, now appears the fall back theory, - she was pronged but the system prevented her from having a "technical" day in court, since she would not be there herself, by the failure to advise her of a non existent, nonconstitutional, "right" not to avail herself of a constitutional right. This issue has nothing to do with the entry of plea. It has to do with the sentencing result. What is sought is another bite at the apple.
up upon entry of a plea. Rule 3.172 nowhere implores the court to advise a defendant that she can otherwise waive these same rights by other means, such as absent ing herself from jury trial.
Wuornos didn't want to just absent herself, in any event, she wanted to dictate where she was housed, which desire hardly embrace any constitutional rights that should be chronicled for her ad nauseam (R 3 - 3 6).
Even if there was error, in accordance with the doctrine that the violation of a procedural rule does not call for reversal of a conviction, unless the record dis closes that non compliance has resulted in prejudice to the defendant, a failure to comply with the rule alone is not a sufficient predicate for relief. Brock u. State, 317So. 2 d 100 (Fla. 1st DCA 1975); Mickeizs u. State, 562 SO. 2d 856 (Fla. 1st DCA 1990) + 0 Wuornos understood the consequences of the plea. Wuornos has
shown no prejudice. See United States u. Stead, 746F. 2 d 355, 356-57 (6th Cir. 1984). There is nothing to indicate Wuornos would not have pleaded nolo contendere had she known she did not have to sit through her trial. Moreover, the grounds presented are insufficient to demonstrate that her plea should even be withdrawn. She has shown neither manifest injustice or an abuse of discretion. See, Porter u. State. 564 So. 2d 1060 (Fla. 1990);
Saizds u. Stcrte, 126 So. 2d 741 (Fla. 1961). There is no doubt that she is guilty of her crimes. The details of her confession parallel the circumstances surrounding the n~rders.
Mandatory Minimum Sentence Appellant next complains that she was not informed that she would be required to serve at least twenty-five years before she was eligible for parole should she receive a life sentence.
In State. Coban, 520 So. 2d 40 (Fla. 1988), this court held that the failure of a trial judge to advise the defendant of the requirement that he serve no less than twenty-five years of a life sentence before becoming eligible for parole rendered the plea involuntary as section 775.082(1) Florida Statutes (1988), provides for an automatic minimum mandatory term of twenty-five years upon an adjudication of guilt.
Coban is distinguishable from the present case, however.
Coban pled guilty to first degree murder in return for the States agreement not to seek the death penalty for the offense.
Coban was actually sentenced to life imprisonment. The mandatory 0 minimum sentence was triggered by the plea, and since the courts had no discretion on whether to impose this automatic sentence this court concluded that the mandatory minimum sentence was a direct consequence of the plea and the failure to advise the So. 2d at 42. Justice McDonald dissected on the basis that the details of parole eligibility are still collateral to the life sentence. Id. In the present case, Wuornos pled nolo contendere without any agreement as to sentence at all. She did not choose an alternative sentence without full disclosure. The only choice she made was to avoid a trial. For all intent and purposes Wuornos stood before the court at the penalty phase as though she had pled not guilty and it was a crap shoot as to which sentence she would receive. Since she made neither 2 bargain nor a choice between alternatives any sentence she received was not a direct consequence of the entry of her plea. A court is not under a duty to apprise a defendant of all the possible collateral consequences of her plea. BEackshear u. State, 455 So. 2d 555 (Fla.
1st DCA (1984). In this case the sentence was not a consequence at all of the plea, except in the sense that upon entry of the plea the case proceeded to the penalty phase * In Simmons u. State, 489 So. 2d 4 3 (Fla, 4th DCA (1986), a plea of nolo contendere actually resulted in a twenty-five year sentence with an unexpected mandatory minimum sentence of three years. Pursuant to Florida Rule of Criminal Procedure 3.172(1) a plea should not be voiced in the absence of a showing of prejudice. Since Wuornos received the death penalty she will never be subject to parole limitations in the first instance and any error was harmless.
Factual Basis for Plea Appellant contends that the trial court's inquiry regarding the factual basis for Wuornos' plea was insufficient as Wuornos maintained her innocence throughout the plea colloquy and repeatedly explained that she acted in self defense, never acknowledged her guilt, and did not explain how the plea was in her best.interest.
A trial court has broad discretion in determining the type of procedure to be utilized for the reception of factual information necessary to establish the elements of the offense for which the defendant has entered a plea of guilty. Williams IJ State, 316 SO. 2d 267 (Fla. 1975). The court may determine the existence of a factual basis for the plea by receiving evidence, testimony, a proffer of evidence, statements by counsel or the defendant, or reference to the record sufficient to satisfy the court that there is evidence to convict on each element of the charge. Gust u. State, 558 So. 2d 450 (Fla. 1st DCA 1990). The court may satisfy itself by statements and admissions made by the defendant, his counsel, and the prosecutor, or by factual evidence heard or filed in the cause. Williams u. State, 316 SO. 2d 267 (Fla. 1975).
In the instant case, Wuornos made in-court admissions that she had shot the victims numerous times and taken their property
(R 689-694; 696-699; 700-703). The state indicated that it would introduce evidence that the victims died of multiple gunshot 0 wounds and that property they had been carrying upon them was missing. The state would also introduce Wuornos' statements to Volusia County Sheriff's Deputy Larry Horzepa and Marion County Sheriff's Deputy Bruce Munster in which Wuornos admitted being the person who had shot each of these individuals and took their property in what amounts to a robbery. The state would also introduce evidence that the.22 caliber death weapon was recovered asa result of Wuornos' statements and the testimony of Tyria Moore (R 706). As evidence that the murders were not committed in self defense the state ~ n i ~ t ~Z:?produce ld evidence of four other homicides committed ina Szriiilar fashion during the course of robberies (R707).
It is clear that this evidence was sufficient for the court to determine the existence of a factual basis for the plea. A nolo contendere plea does not admit guilt or the allegations oL the charges, although its effect is to admit the facts well pleaded, but, rather, it communicates that the defendant chooses not to defend against those charges. It is the equivalent of a guilty plea only insofar as it gives the court the power to punish. Ferrin u. State, 489 So. 2d 174 (Fla. 5th DCA 1986). In such cases, guilt is a legal inference from the implied So. 2d 613 (1917). The cases cited by appellant in support of his contention that extensive inquiry into the factual basis must be made before accepting a plea where a defendant raises the possibility of a defense are all applicable in the guilty plea 0 context. Appellant overlooks the fact that the plea entered in this case was a nolo contendere plea in which it is not necessary that a defendant admit his or her guilt. In any event, Wuornos specifically and understandingly waived any right to a claim of self defense (R693; 696; 698; 702-703). Furthermore, pursuant to Florida Rule of Criminal Procedure 3. 172 (6), the trial judge determined that Wuornos felt it was in her best interest to enter the plea (R 742). There is no requirement in Rule 3.172(d), that Wuornos explain how the plea was in her best interest or that the trial court explain what those "best interests" were. Wuornos plea cannot be invalidated fora lack of a factual basis simpljf because appellate counsel, in hindsight, perceives no benefit ii> a Wuornos so pleading. The plea exists. Wuornos had the right t; n avail herself of such procedure and enter the plea. The trial court was under no obligation to interrogated her as to what benefit she would be receiving. The most obvious benefit is the avoidance of a trial, which benefit is of the magnitude to entire many other defendants to enter such pleas.
1 1, NO RJ3ASONABLE GROUNDS WERE PmSENT TO SUSPECT THAT APPELLANT"
WAS INCOMPETENT TO ENTER A PLEA AND THE TRIAL COURT HAD NO DUTY
TO USA SPONTE ORDER A HEARING.
The issue of competency goes to the voluntary and intelligent character of plea and an issue concerning such must always be presented to the trial court for relief on a motion to withdraw the plea, and then an appeal taken to review an adverse ruling. Tillinan u. State, 522 So. 2d 14 (Fla. 1988). Although a defendant who pleads guilty or nolo contendere may directly appeal matters which would invalidate the plea itself, an appeal 0 from a guilty or nolo plea should never be a substitute fora motion to withdraw the plea. Robinson u. State, 373 So, 2d 898 (Fla. 1979); Keith u. State, 582 So. 2d 1200 (Fla. 1st DCA 1991).
This issue should right fully be presented to the lower court ina post conviction motion, Randolph u. State, 438 So. 2d 1029 (Fla.
1st DCA (1983). Even in the event this claim is properly before this court, no valid grounds for relief have been presented.
The conviction of a legally incompetent defendant or the failure of a trial court to provide an adequate competency determination, violates due process by depriving the defendant of U.S. 375, 385-86 (1966). Due process is violated if a competency hearing is not held when a certain level of doubt arises regarding a defendant Is competency. Drope U. Adissouri, 420 U. S - 162, 180 (1975); Pate u. Robinson, 383 U. S *,175, 385 (1966). A successful Pate challenge requires a showing tmt the trial judge failed to order a competency hearing when, Szsed on the facts and circumstances known to him, he should have: l; een the need fora hearing. United States u. Da-y, 949 F. 2d 973, $ 8 2 (8th Cir. 1991).
The Supreme Court has recognized the futility of attempting to articulate the nature and amount of evicience necessary to establish the requisite doubt and has noted that the states may prescribed such standards, Drop, 420 U, S. at, 7 2 - 7 3; 180.
Florida Rule of CriminalProcedu ~ e 3. 210 (b) imposes upon the trial court a duty or responsibility to conduct a hearing on a defendant's competency to stand trial whenever it reasonably appears necessary, whether requested or not, Gibson u. State, 474 0 So. 2d 1183 (Fla. 1985). The issue is whether there are reasonable grounds to believe that the defendant may be incompetent, not whether she is incompetent. Nowitzke u. State, 572 In the present case there was absolutely no indicia of incompetency to plea. Wuornos' attorney was present at her previous trial, had read the doctors' reports, and evidently communicated with one of the psychologists. He had known Wuornos for approximately a year. He stipulated to her competence (H.
687-688). Cf. Pardo u. Stcrte, 5G3 So. 2d 77 (Fla.. i390).
Other than the borderline personality 63.'1; orrl~rfound in the previous case and referenced by the appellaj?:, elsewhere herein, Wuornos lacked a history of mental illness 3nci imcompetence to 0 stand trial.
Despondency or ambivalence about the plea does not constitute reasonable grounds to believe adefendantmight have been incompetent to submit a plea. Ti-awiclz u. State, 473 So. 261235 (Fla. 1985). This is particularly true in the case of a plea of nolo contendere, which is regarded as in the nature of a compromise between the state and the accused under which the accused formally declared that she will not contest the charges.
Hoover- u. State, 511 So. 2d 629 (Fla. 1st DCA 1987). Such plea is used where an accused, though unwilling to confess guilt, does not wish to go to trial and desires the court immediately to impose sentence. Vinsoit u. State, 345 So. 2d 711 (Elva. 1977).
Wuornos' statements hardly provided a reasonable ground to believe that she was not competent to proceed. WUOKIIOS' self defense theory had been tested and failed in her previous trial.
Appellant would be hard pressed to present adefendantwho felt no bitter ness that his defense did not work. Her statements do not reflect that she felt she had a legally sufficient defense o € self-defense though she may have felt ina distorted moral sense that she killed in self-defense. That she may prefer the conditions at the Broward Correctional Facility over jail hardly demonstrates incompetency. Many convicted murderers would rather be executed than spend their lives in prison?. If a belief in heaven is sufficient indicia then, evidently, no Christian would ever be competent to enter apJea. The prior- "suicide" attempt was not an attempt at all but referenced -i3 explain a prior charge of armed robbery (R. 46).
The state fails to note the paranoia, delusion and religious idea tion that Wuornos ' counsel somehow senses. The state would submit that Wuornos' statements were fairly eloquent, as opposed to rambling. She explained her actions, documented her complaints with the functioning of the legal system and complained of occurrences at her previous trial (R. 718 - 736).
Her behavior was consistent with the unwillingness to confess guilt attendant to the entering of a nla contendere plea.
Wuornos may have pled straight up with no guarantees but she was not without a strategy to escape the death penalty. The prior self-defense theory didn't fly. There was nothing to lose by taking the tac that she was taking resnansibility for her actions, had turned to God, had changed, and had merely fallen into such waywardness in the first place because she was forced0 to become a prostitute because of the sad circumstances of her life and felt she had to defend herself. IF this is indicia of incompetency, then Wuornos' lawyer is incompetent, as well. The entry of the plea was hardly a suicide attempt. The "benefit for the bargain'' was obviously avoiding another trial. This was keen strategy since she had hopes of getting a neb7 trial in Volusia County (R. 737).
The record in this case reflects that Wuornos understood what was going on, was able to assist in her own defense, was able to consult with coun?el, and understood the ramifications and consequences of entering plea I See. M1; cnn I, State, 460So. 26 359 (Fla. 1984).
111. THE STATE PROPERLY PRESENTED SIMILAR FACT EVIDENCE AND
RELEVANT REBUTTAL EVIDENCE AT THE PENALTY PHASE,
Appellant only objected to the testimony of Bobby Lee Cops on the basis that it didn't have anything to do with rebuttal.
Nowhere did defense counsel argue below the grounds now raised on appeal. It is clear that if a defendant' fails to make an objection at trial to the admissibility of evidence of collateral crimes, the issue may not be raised on appeal. Harmony U. State, 527 So. 2d 182 (Fla. 3.988). Also, where a defense objection is overruled, an entirely different ground for the objection will not be considered on appeal. Hirzes u. State, 425So. 2d 589 (Fla.
3d DCA (1982). This issue is waived, Wuornos is entitled to no relief even if this issue could be entertained. Similar fact evidence of other crimes, wrong or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident and is only inadmissible when the evidence is relevant solely to prove bad character or propensity §90.404(2)(a), Fla. Stat.
(1992). Similar fact evidence may be admitted to establish a pattern of conduct similar to the pattern of conduct in the crime. Jones u. State, 398 So. 26 987 (Fla. 4th DCA 1981). The test for admissibility is relevance. Heiney 1:. Stclte, 447 So. 2 6 210 (Fla. 1984). The fact such evidence is prejudicial does not make it inadmissible. Sireci U. Stcrte, 399So. 2d 964 (Fla. 1981 The videotape of Wuornos' confession was published to the jury by the defensein, the penalty phase (R653). IN her many statements Wuornos contended she acted in self-defense* Pxrsuing 0 this same theme, Arlene Pralle testified that Wuornos had been raped and impregnated at age thirteen (R 670); had been previously attacked many times by her clients; and on three occasions tried to fend them off with mace, which they ultimately used on her, then raped her and left her in the woods for dead;
(R672) and that Wuornos was actually gang-raped (R 672). Pralle also felt that Wuornos had killed under extenuating circumstances
(R706). The incident involving Cops was relevant to Wuornos' modus operandi of way laying travelers with bogus stories of distress then claiming they were there to sexually molest her and that she acted in self-defense. Wuornos' encounters clearly demonstrated a plan. She used the ruse of a damsel in distress to obtain rides and, once in the car, propositioned the victims for sex. Her actions with Cops reflect that when such proposition were not accepted she reacted violently, indicating a robbery motive, as opposed to self-defense. The men who were unfortunate enough to encounter her were all taken to isolated areas and shot by the same.22 caliber revolver and robbed. This evidence was clearly relevant to refute any claim of self-defense and went to her robbery motive and general niodus operandi.
Any complaint as to the testimony of Investigator Padgett that her brother and sister refused her claims of an abusive childhood is waived, as discussed in Peint17.
Defense counsel did notraiseaspecifi - c objection at all, no less raise the ground now argued (R504) md any complaint as to testimony concerning Wuornos' previous religious conversion is procedurally barred. Bertolotii u. State, 555 So. 2d 1343 (Fla.
(1990). While Wuornos may latent the prejudicial effect of such testimony, its relevance can hardly be disputed considering that the crux of Pralle's testimony revolved around! Wuornos' religious conversion.
No objection at all was inter posed during the testimony of Lieutenant Paul Laxton that Wuornos threatened him with physical violence while being transported and wanted to start a revolution against police officers (R792 - 9 4). Any cmiplaint as to this evidence is also waived. Har*nron v. State, 527 So. 2d 182 (Fla.
(1988). The testimony of Ora Berry was only objected to as cumulative, and not on the grounds now raised so, again, any error is not specifically preserved. Hines U. State. 425 So. 2d 589 (Fla. 3rd DCA (1982). Such evidence was relgs-ant, in any event, to rebut Pralle's testimony that not only had Wuornos undergone a religious conversion but she had become less verbally and physically aggressive (R697 - 9 (8).
IV. THE CLAIM THAT THE STATES USE OF HEARSAY EVIDENCE VIOLATED
APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, CONFRONTATION
AND CROSS-EXAMINATION OF ADVERSE WITNESSES IS PROCEDURALLY
BARRED Arlene Pralle, Wuornos' adopted mother testified on Wuornos' behalf in the penalty phase (R659 - 708). Prior to that Wuornos recounted her childhood abuse ina statement she read to the court (R 55-58). Pralle only met Wor~cs by telephone on January 31, 1991 (R660; 663). Pralle had s.'3sclutely no firsthand knowledge of the circumstances of WIQL ' I ~ C ' Y ' life up until the time she was arrested. Nevertheless, Pralle was permitted to testify in great detail as to the circumstances of Wuornos' 0 childhood, teen years and her eventual career asa prostitute.
Wuornos had, at this point, absented herself from the penalty phase (R 91). She later testified prior to sentencing that she had been disowned by her brother and sister when she was seventeen years old and had not seen them since. She indicated they worked forth state for monetary favors and were to receive financial interests in the movie "Overkill" and stated vile defamations about her in pursuit of the same (R 760). Aside from Wuornos, the only other person to have any knowledge of such abuse was Dawn Neiman, Wuornos' childhood friend (R 693-94).
Neiman did not testify at the penalty phase + Instead, Pralle testified as to what Neiman had told her concerning the allecpd abuse of Wuornos by her grandfather (R 593-694)* Pralle indicated that she had confirmed Neiman's account of the abuse with Wuornos, herself (R667). No objection was inter posed by the state to this hearsay testimony of Pralle (R 667). In surrebuttal Pralle actually read a letter from Dawn Neiman indicating that Barry Wuornos and Lori Grody?ad lied (R 818-20).
Appellant now canplains that the state elicited on cross examination of Pralle the fact that she was aware that Barry Wuornos and Lori Grody had denied under oath tjiatsuch abuse ever occurred (R 695-96) and did not call Wuornos or Grody as witnesses.
The record reflects that only a general objection was inter posed when Pralle was asked about her know.Ledge of Barry Wuornos denying under oath that any abuse had. occurred (R695) Defense counsel did not object at all to the question regarding @ Lori Grody (R 695-96). Appellant further incorrectly tells this court that "defense counsel subsequently complained about his inability to cross-examine Barry Wuornos." Initial Brief of Appellant p. 46. The record actually reflects only an off-the cuff remark of counsel during the cross-examination of homicide investigator Marvin Padgett concerning Barry Wuornos' knowledge of any alleged abuse. Counsel stated "Well, if he was here I might be able to question him about what he saw." Counsel then immediately stated "Excuse me--1 withdraw that." (R788). No objection at all had been raised when Padgetr testified that he had interviewed Barry Wuornos and Lori Grody- and they indicated that no physical abuse had been directed at Wuornos (R786). No objection at all was raised when Padgett testified that he had @ also interviewed Dawn Neiman who revealed that she had seen no abuse directed toward Wuornos and had never discussed such abuse with Wuornos (R 787). Appellant also fails to reveal that as early as the plea hearing Wuornos, herself, told the court that her sister Lori and brother Barry had not seen her in seventeen years when they took t.he stand and were involved with the police in movies and books (R 725).
In order to preserve an issue for appeal, the specific legal ground upon which an objection is based must be presented to the trial court. Bertoloffiu. State,, 56s So.. 2d 1343 (Fla. 1990)* Since only a general objection was inter posed when Pralle was asked about her knowledge of Barry Wuornos denying under oath a that any abuse had occurred, the failure to make a specific objection precludes appellate review. Barclay V. State, 470 So. 2d 0 691 (Fla. 1985). Also, each error, though similar in kind to others, must be separately objected to by the complaining party.
Mercer u. State, 83 Fla. 555, 9 2 So. 535 (1922). Any complaint as to the question regarding Lori Grody or t;- fact that these parties were not available to cross-examine cr: that the state was presenting hearsay is also waived. These obj3c " cio ~ sw ere simply not raised below. Additionally, the right 3 corn plain of such evidence is waived by the fact that Wumnos, self, brought out the fact they had taken the stand and testi: " - ed when they hadn't seen her in seventeen years, Pralle laxer:.led Neiman's letter.
A defendant must abide by the same rules 2f evidence as the state. Hitchcociz u. State, 578 So. 2d 685 (Fla. 1 - 990) - Moreover, if a defendant could, in fact, have rebutted hearsay testimony, the @ evidence is admissible. King U. State, 514 SO, 2d 354 (Fla. 1987).
That Grody and Wuornos had denied any abuse occurred was no surprise to the defense at the penalty phase Wuornos discussed it at the plea hearing. Defense counsel sat through the prior trial (R 688). In Buenoano u. State, 527 So- 2d 194, 198 (Fla.
1988), this court found that hearsay testimony in the penalty phase was susceptible to fair rebuttal where defense counsel represented Buenoano in the prior felony casn, s, of which details were solicited. Even if there was error it was harmless and did not result in prejudice to the defendant's I-;'&se requiring a new sentencing proceeding. State tj. DiGullio. 421 5 0. 2d 1129 (Fla.
V. THE JURY'S DEATH VERDICT WAS NOT TAINTED BY EVIDENCE OF
0 NONSTATUTORY
Amendment.
AGGRAVATION IN CONTRAVENTION OF THE EIGHTH
The appellant complains that the prosemtor, during closing argument, in anticipation of a defense argument that Wuornos should be spared from another death sentence because she already has One, told the jury that one of the documents in evidence is a notice of appeal from that death penalty. Appellant contends that such argument, as well as the notice of appeal, constitute impermissible evidence of a non statutory aggravating circumstance and Wuornos was thereby denied a fair trial.
Defense counsel, did not object tc the prosecutors statement (R836 - 836). In fact, defense cou - i ~ e indicated he had no problem with the prosecutor discussing an appeal (R 741). It.
was the defense position that a prior del, th sentence was a mitigating factor (R 740). Since in many c3.ses the effect of improper argument can be removed by an instruction ta the jury to disregard it, it is a general rule that if an error is to be predicated on such impropriety, objection Kinst be made at the time the argument is presented. Paite u. ST! ife, 112 So. 2d 380 (Fla. 1959). No motion for mistrial was made before the jury was instructed and retired to deliberate. Appellate counsel cannot take a different position than trial counsel. This issue is procedurally barred.
Wide altitude should be permitted! in regard to Teffeteller u. Stui ~, 42. So - 2d 840 (Fla.
prosecutorial comments.
1983); Breedloue u. State, 413 SO. 2d 1 (Fla. 198','* TJuornos has not shown the prosecutors argument ta be so;-inflammatory as ta produce a more severe sentence than otherwise would have been recommended. The record reflects that the defense pointed out at the beginning of oral argument that Wuornos had, in fact, been sentenced to death in the electric chair on January 30, 1992 (R 842). It was argued that she would neverses the streets of the State of Florida again because she would either spend the rest of her life in prison or the State would kill her in the electric chair (R 843). It was also argued that Wuornos was saving the State of Florida twenty to thirty million dollars in entering her plea. IT was pointed out that there is an axtomatic appeal and that there was acostfor these appeals (R846 - 847). It was further argued that defense counsel would request the judge to sentence Wuoriios to three consecutive life Sentences so that she would be put away for seventy-five years. 3sfensecounsel then @ brought out the fact that “you know her case is on appeal in death row. If that case gets overturned, if its going to come back ‘ life ‘. That will be a hundred years she will be serving.
I am not familiar with anyone living in prison to the rip old age of a hundred and thirty-five. And don't forget the possibility of parole is just that, a possibility.” (R 863).
Defense counsel went on to further describe the conditions of residing within a prison for life. Counsel stated “if she ever gets off death row, they are going to put another person in the room with her. And there are no curtailis. ‘%at is punishment.
If she gets off death row--appeals take ten yci-,?rs, twelve years-- she will be off of death row. So in twelve 1-2ans she's going to live in here (indicating). What that could dc to the brain,” (R 865). It is clear that defense counsel brought out the same a information that present counsel now condemns as injecting non statutory aggravation into the penalty proceeding. The state would submit that appellant has waived the right to complain of statements by the prosecution when the same fact was brought out by the defense in support of its argument that Wuornos should remain in prison for the rest of her life.
Pursuant to Florida Rule of Appellate Procedure 9.140(f), this court must review the evidence when a defendant is sentenced to death regardless of whether insufficiency of the evidence is an issue on appeal. Convictions and sentences become final when the United States Supreme Court denies review of this court's affirmance of them on the original appeal. Tafero u. State, 524 So.
2d 987, 988 (Fla. 1987). The prosecutors statement was not an 0 incorrect statement asa matter of law, in any event. Any error was harmless, State. DiGuilio, 491 SO. 2d 1129 (Fla. 1986).
VI, THE TRIAL COURT DID NOT IMPROPERLY LIMIT APPELLANT'S VOIR
DIRE EXAMINATION AND APPELLANT WAS ACCORDED DUE PROCESS AND A
FAIR TRIAL.
The examination of persons called to act as jurors is limited to such matters as tend to disclose their qualification in that regard. Diclzs u. State, 8 3 Fla. 717, 93So. 137 (1922).
The statement "But ifshe were sitting here, she would want to find twelve people who are free from opinion as to her fate.
And if any one of you were sitting here, you would probably want the same thing'' was certainly in the nature of a Golden Rule argument. It asked the jurors to put themselves in Wuornos' place. Cf. Peterson u. State, 377 So. 2d 179 (Fla. 2nd DCA 1979).
If not "Golden Rule," the statement was at l~::.i~t irrelevant. Any error in sustain ing the States objection ws;? harmless. State 7'.
DiGuilio, 491 So. 2d 1129 (Fla. 1986).
The statement that you "never ever havr~ to vote for death if the defense can show you any bit of miti, LA, tion "isablatant misstatement of the law. The aggravat.: zg and mitigating circumstances must be accorded weight by t:(2 jury and weighed.
Fla. Stat. 8921.141 (1993).
Appellant cites no authority for the proposition that a presumption of innocence obtain in the pen.: ty phase. There is no presumption as to any sentence in the penalty phase. The purpose of the penalty phase is to determine the appropriate punishment, The law applicable to the case j T, ust be given to the jury by the court and not by counsel. Broron/ee u. State, 9 5 Fla.
0 775, 116 So. 618 (1928). The trial court properly curtailed defense counsel's erroneous lecture on jury considerations during voir dire. The jury was properly instructed Sy the judge and any error was harmless. State. DiGuilio, 491So. 2 ~ 3 1129 (Fla. 1986) -
VII. THE DEATH SENTENCES ARE JUSTIFIED AND APPROPRIATELY BASED
ON VALID AGGRAVATING CIRCUMSTANCES AND WEAK MITIGATION.
A. THE TRIAL COURT PROPERLY FOUND THAT THE CRIMES WERE COMMITTED
DURING THE COMMISSION OF A ROBBERP/PECUNIARY
An aggravating circumstance exists where the capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or the attempt to commit, or flight after committing or attempting tc c: - mmit, any robbery.
F.S. §921.141(5)(d). A contemporaneous convic - tion for one of the statutorily enumerated felonies warrants a finding of aggravation fora murder which was omitted during thE commission of thate crime. Per-ry u. State, 522 So. 2d 817 (Fla. 1288). AS the trial court noted, Wuornos entered a plea to the armed robberies of these victims (R 301-2, 457 - 5 8; SR 2 - 3).
That a killing was committed for pecuni2ry gain also may be established by evidence that the defendant!?ad no Mooney before the victim's death but that after the victim's death had the victim's property, Hildzuin ZJ. Stcrte. 531 So. 2d 124 (Fla. 1988)I or that Mooney known to be in the victim's possession was missing after the murder. Chi*morez u. State, 527 So. 2d 182 (Fla. 1988);
Moody u. State, 418 So. 2d 989 (Fla. 1982). AE to the Humphrey's murder, the dont abrasions to the abdomen would be consistent witha gun Barred being shoved into the body pursuant to a robbery (R 591). Humphrey's brief case WES found in Wuornos' 0 storage facility (R541). Burress and Sea-both had cash on them at the time of their disappearance which was later missing
(R 553-54; 571). Additionally, a robbery rnotS7re is apparent from Wuornos' use of a storage facility to keep reh property of her victims (R 609-11). She also tried to wipE everything down (R 593). This is inconsistent with the gatheriL1.g of valuables asa mere after thought, especially where there is a pattern of murder accompanied by loss of property. Had the eaking of property stopped with the murder of Richard Mallory, Wuornos may have a point, but such point loses vitality with th<_ continued killing and loss of property. The importance of mr.;.ey to Wuornos is apparent from her statement after she kille- Burress and took a three hundred dollars from his clipboard " Shi;
give me fuckin ' ten dollars... 'I (R 617)* I you were going tv This case is distinguished from SCZLZIu. Liate, 533 SO. 2d 1137 0 (Fla. 1988), in that while the victimscarsm-1y have been used as an initial means of escape, Wuornos then gained actual use of them. She used Mallory'scar to move to answ place (R597 - 9 8).
She drove Moore and her sister to Sea World ixi Siems' car (R 640) then later wrecked it (R 558). She drove Spears' truck home overnight and kept the tools in it (R 610). The fact that these victims' cars were found miles from the bodies; is consistent with her continued use of her victims' automobile.
Finally, Wuornos' behavior, as reflected in the testimony of Bobby Lee Cops, is certainly more consistent with an aggressive robbery motive than the scenario of simply a prostitute depending herself,
B THE TRIAL COURT PROPERLY FOUND THAT ALL THREE MURDERS WERE
0 COMMITTED TO AVOID A LAWFUL ARREST
Direct evidence of an intent to avoid szrest may be based on an express statement by the defendant if that statement.t indicates a motive that the victim was kil1E: j to avoid arrest, Cook u. State, 542So. 2d 964 (Fla. (1989), such casa statement that the defendant did not want to leave any w2messes that could identify him. Lopez u. State, 536 So. 2d 226 '?la. (1988). Here, one does not have to speculate as to Wuurnas' motive; she revealed it in terms that could not be more prmise: " Ofcourse, I didn'treally want to kill 'em in my heart,. but knew I had to. Because knew if I left some witness, t2en they'd find out, who I was and then I ' d get caught ' ' (R553); "1 felt that ifI:
didn't shoot 'em and I didn't kill 'em, first of all, if they survived, my ass would be gettin' in trcxble for attempted murder, so I'm up shit's creek on that one a:~.way." (R629).
Even if there is no express statement by the defendant indicating a motive to kill the victim $ 3 ~the purpose of avoiding arrest, there may be sufficient support for such a finding where there is no other apparent motive for the murder, Har*non u. State, 527 So. 2d 182 (Fla. 1988), or the defendant shot the victim in order to flee. Young u. State. 579 SO. 2d 721 (Fla.
(1991). Appellant's argument is tenuously bassd on a self-defense theory. Stopping the camera where it should k_.e stopped, which is at the completion of all the action, reve2ls the fallacy of appellant's argument. Wuornos had immediately disabled these victims. Beyond that point she had no claiin of self-defense.
Even if she is correct that no one has the rightto abuse even a 0 prostitute, a premise most civilised people could agree upon, conversely, a prostitute has no right to kill asa part of her job description. She had no reason to kill these men other than the dominant motive she revealed. It was also easier for her to flee without the inconvenience of walking through briars in the woods (R626). Appellant has overlooked the fact that evidence showing a pattern of shooting victims during the commission of robberies or showing a calculated plan to execute all witnesses 1051 (Fla. 1985); Garcia u. Sttrtc. 492So. 2d 35p (Fla. 1986).
The record does not support appeliast's assertion that Wuornos and the men were engaged in prostitution, in the first place. Except for Spears, the men were not even naked or unfastened, and there was no evidence of sexual activity.
C. THE TRIAL COURT DID NOT ERR IN FINDING TS"1 THE THREE CAPITAL
FELONIES WERE COMMITTED INA COLD, CALCULAT~:, AND PREMEDITATED MANNER WITHOUT ANY PRETENSE OF MORAL OR LEGAYXSTIFICRTION I-_ This aggravating circumstance is proper where theresa degree of premeditation exceed ing that necessary to support a finding of premeditated first-degree murder. I',*upehar.t U. State, 583 So. 26 1009 (Fla. 1991). Heightened premeditation will be found when the evidence indicates that the defendfint's actions were accomplished ina calculated manner. Cirpclzlrrf I. State, 583 So. 2d 1009 (Fla. 1991). Calculation consists of a careful plan or pre arranged design. Farinas u. State, 569 So.,: rl 425 (Fla. 1990).
Evidence that a defendant planned in ad;-aire to leave no witnesses to a robbery will support a finding that the murder wang cold, calculated, and premeditated, Renietn v'. State. 522 So, 2d 825 (Fla. 1988). That is certainly the case here. In numerous 0 statements Wuornos indicated that she had to kill the victims because if shelefta witness she would be caught (R553; 629).
She killed them to silence them (R 640). In furtherance of this plan, she always shot to the mid section so she would know that they had been shot (R 612). Heightened premeditation can be demonstrated by the manner of the killing, such asa killing that is, in effect, an execution where the eviderze proves beyond a reasonable doubt that the defendant planned o - arranged to commit murder before the crime began. Any 1). State. 580 So. 2d 610 (Fla.
(1991); Porter- u. State, 564So. 2d 1060 (Fla, ~ ' ~ 9 (0).That is also the case here. Wuornos took the property of - ne ~ e men, spent it, pawned it, or warehoused it. She ~ li ' n % s don leaving no Humphreys was not only shot seven times but a final bullet was administered to the back of the head (R 582-84; 588-89). The wound in Burress' back had an upward trajectLiy (R 555). Spears was shot at least six times (R596).
The physical evidence is consistent w - ththoseparts of Wuornos' confession indicating pattern of robbery/murder and witness elimination, The turned out pczkets, taking and disposing of property, and the sheer nurrbor of victims are consistent with Wuornos' plan to eliminate wi ~ nesset. Her desire not to leave anyone who could identify her, t, ie number of bullets in the victims, and the shot to the victim's head, is inconsistent with her contention that she acilsd in self-defense.
Wuornos' tangential assertion that she acted, in self-defense is irreconcilable with the other facts proven?; id the lower court0 was not required to accept this version. Cot, 1:. State, 494 So. 2d 1134 (Fla. 1986).
The defendant in Cartnady u. Stcrte, 427So4 2d 723 (Fla. 1983), was not involved ina pattern or program of: robbery/rnurder with an vowed intent to leave no witness alive. "Unlike the situation in Crurnp u. State, 622 So. 2d 963 (Fla. 1993), Wuornos carried a.22 and intended to leave no witnesses to a robbery. Crump involved no subsidiary felony. Csump clair; * dan argument had broken out which was not contradicted by ot, Ter statements. Ifi C1ur.h u. State, 609 So. 2d 513 (Fla. 13S2) I as not even the defendant, but another who had invited the -~-:-ctsrii along. There was no evidence that Clark pre planned the kiL;-: rg or arranged to have the victim accompany the groups o he ccl;, lC: be takentoan isolated area and murdered.
Withthe exception of Spears, Wu.ornos' victims were found fully clothed with no evidence of sexual activity. They were older and not likely to be missed. Their pockets were ransacked and property taken. They were either shot numerous times or shot ina vital area to ensure death. The inescapable conclusion is that the majority of victims were good samaritan like Bobby Cops who had the misfortune to give a lift to a highway woman, determined to leave no witness behind.
D. THE TRIAL COURT PROPERLY FOUND TH..T THE MURDER OF CHARLES
HUMPHEEYS WAS HEINOUS, ATROCIOUS OR CRUEL
What is intended to be included by- this aggravating circumstance are those capital crimes where the actual commission of the capital felony was accompanied by addiz:-onal acts that set the crime apart from the norm of capital felon!ies, for instance, the conscienceless or pitiless crime that- is unnecessarily torturous to the victim. Douglas u. State, 575 So. 2d 165 (Fla, Evidence of considerable physical pain Fjuffered by victim is relevant in determining whether the k'!ing was heinous, atrocious and cruel. Gilliant u. State, 582 So. %d 610 (Fla. 1991).
Humphreys' suffering is apparent from Wuornos~ own statement that she shot him in the head toput him out of hi.;> "misery. " (R 649).
See, Squires u. State, 450 SO. 2d 208 (Fla. 198 ~.) The only wound that would have quickly incapacitated Hump.,: rzys was the one to the back of the head (R588 - 8 9). From Wor-.,2s' statement it is evident that this was the Znst wound inflicted;. Before his death Humphreys suffered through six gunshot wcu~ds none of which would have been instantly fatal (R 582-84; 388 - 8 9). Clearly, a this was physical torture. Also, a killing p - wsded by a battery may be found to be heinous, atrocious and c - xel. See, Meizdylz ZJ.
Safe, 545 SO. 2d 846 (Fla. 1989); Lightboume 1 1.:: Fate, 438 SO. 2d 380 (Fla. 1983). As Judge Sawaya noted, Huryhreys had a dont abrasions on the right side of the abdomen cr,.resist.ent with gun Barred being shoved into the body (R 591). I-Je also had a wound to the upper part of the right arm and wrist jR 587 - 588). Not to mention he was shot twice in the arm (R589 - 9 0;.
The mind set or mental anguish of victim also is an important factor in determining whether akiI - iingis especially heinous, atrocious, or cruel. Harvey U. Stni ~. 529 So. 2d 1083 (Fla. 1988). A victim's knowledge of irnpendiryq death may support a finding that the killing was especially heiiiDus, atrocious, arid @ cruel, even if the death itself was quick. B~urzo U. State, 574 So.
2d 7 6 (Fla. (1991); Douglas u. State, 575So. 2d i65 (Fla. (1991). It is known from Wuornos' statements that she always shot to the mid section so she would know they had beer: shot (R 612) and engaged in "immediate firing" (R 692). Zt is logical that Wuornos' first strike on Humphreys was at close range in the car and to the chest or abdomen, since she:).as concerned with immediate incapacitation. Having accomplished that it would have been logical for her to prod Humphreys from the car with the Barred of her gun. Humphreys' actions from "_; lot point on evince a great fear of impending death. He either ran or turned from her to have received two bullets to the back. At some point she got him in the torso area again. He was sho-? twice in the arm.
Most telling is the medical examiner'stestin1, ~ that y his wounds were consistent with someone twist ing and ti, Liing while either standing or lying on the ground (R 589-90)- 'This is not a case of near instantaneous death by gunfire. Cf. *';: its LJ. State, 593 So.
2d 198 (Fla, 1992); Williaiizs u. State, 574 So.: ": 136 (Fla. 1991), Humphreys' death was drawn out and the bruis. 4 would indicate a prior struggle. Humphreys' twist ing and turn.;*.-igindicate a clear apprehension that he was about to be murder? > d, Cf. Robiitsoit U.
State, 574 So. 2d 108 (Fla. 1991). This mur er by shooting is hardly ordinary and is set apart from the I-$ rm of premeditated murders and is heinous, atrocious or cruel. iiJmphreys was an HERS investigator in child protective services (R531). He had been in Wildwood on an investigation (R532). He l!ad a family (R 531- 32). Nothing indicated an intent to have S ~ Xw with Wuornos. It 0 is not hard to envision his horror when by some stroke O C misfortune he found himself witha murderous highway woman, intent on killing him, witha small caliber weapon. Such is the fabric of HAC.
The cases cited by appellant involve or; iy single shots or immediately disabling shots, Wuornos indica.f-ed she was angry at Humphreys because she didn't believe he was:: police officer (R 650). She seemed to reserve her greatest iury for him as evidenced by the large number of rounds ex -ended. It wasn ' t particularly magnanimous of her to try a.nd -'u", him out of h3.s misery. Wuornos was no angel of death.
E. MITIGATING EVIDENCE
At the outset, it should be noted that 32, pell ant concedes that the evidence concerning some of the nonstztutory mitigating circumstances is in conflict and that much cf the mitigating evidence was hearsay, The defense must identify for the c ~ urt the specific non statutory mitigating circumstances it B, attempting to establish. Slums u. State, 568 So. 2d 18 (Fla, 1590). Defense Counsel argued to the jury that Wuornos was accepting responsibility for her actions and was not saying she committed the crimes because she had been abused, raptt., had a baby at thirteen, or was an alcoholic (R852).
The fact that Wuornos was abandoned by "Per not her when she was an infant after a neglectful first few months is not mitigating in itself when you consider the fact that she did not go to a home or to strangers but was raised by her own grandparents. The claim of abuse in the grandparents' home was simply not supported by the evidence. Alternatively, the court found that even considering such alleged abuse, the aggravating factors overwhelmingly outweighed the evidence presented in mitigation (R 305-08, 463-64, SR 9-10), The fa. ctthat Wuornos was raped and impregnated at the age of thirteen was offered incidentally as part of the history of abuse wherein she was eventually placed ina juvenile home. Sou!.? this court take judicial notice of the case of Il~iiornczs U. State. C:??ci Number 79,484, as requested by appellant, it will see thatK - ~ cxn has ~ a history of claiming rape and had even contended she wd.5 raped by a jail transport officer. The connection between k+r being a young unwed mother and the murders in this case is too tenuous to form a basis for mitigation, in any event. Grief a", tino, loss of her brother is also too attenuated to form a basis 2nr mitigation.
Wuornos stopped taking drugs at age sixteen (R571) It is clear that when a defendant's actions in committing murder were not significantly influenced by her childhood, history of abuse or a difficult childhood need not give rise to a mitigating circumstance. Learn u. State, 464 So. 2d 1173 (Fla. 1985); Rogers 1.;.
State, 511 SO. 2d 526 (Fla. 1987). That Wuornos h3.C" consumed some alcoholic beverages on or about the date of the commission of the offenses was found not to have lead to extreme mental or emotional disturbance, thus, the tangential fact that she was, coincidentally, an alcoholic, hardly mitiga.te:: her crimes especially in view of a clearly established robbery motive.
0 A review of the record reflects that the t. hrust of Wuornos' penalty phase defense was her bad start in life anci the fact that she had found God, was now taking responsibility fcr her actions, and had changed. What is now offered as direct xitigation were only historical incidence below pertaining to her direct claims of abuse or religious conversion, which were fully considered by the trial court.
It would be wholly inappropriate for this court to take judicial notice of the mitigation found by ar.other circuit court, ina completely different case. Wuornos ' pie:, al.t:)r phase defens?
of a borderline personality disorder did not. x?rkto relieve her of a death sentence in the Volusia County: zse, in any event...
Such defense was not offered in the present case. A new penalty phase strategy of taking responsibility for: her actions was @ formulated in this case. Wuornos obviously cannot reap the benefit of combining distinct strategies. That one doctor may have found her borderline does not mean that such diagnosis should obtain in the present caze without evidentiary offering or proof. In any event, such diagnosis was insufficient to reach even statutory mitigation level and likewise should not relieve her of the sentence imposed in this separate case.
Even in the event any aggravators were inappropriately found, considering the weak mitigation fouxdi a.long with any further weaker mitigation now postulated, death is still the appropriate sentence and any error is harmless. State. DiGuilim,
VIII. CONSTITUTIONALITY OF SECTION 921.141, FLORIDA STATUTES.
0 Heinous, Atrocious or Cruel Jury Instruction The defense argued below in regard to tlie murder of Charles Humphreys simply that the heinous, atrocious, or cruel factor was inapplicable to this crime (R755 - 765) + NO attack was made on the heinous ness instruction below on the basis of vagueness or that it relieves the state of the burden of proving the elements of the circumstances as developed in cas{z law. Where the instruction itself is not attacked eithsx by submitting a limiting instruction or making an objection to the instruction as worded, this issue is procedurally barred. Z7slit-an-Lopez u. State, 1 8 Fla. L. Weekly S469 (Fla. Sept. 2, (1993). In any event, this court upheld the full State 0. Dixort, 283 Sc. 26 1 (Fla. (1973), instruction in Preston u. State, 607 So. 26404; (Fla. 1992).
* Cold, Calculated and Premeditated Jury Instruction.
Again, the instruction on this factor was argued against on grounds of inapplicability. This issue is also waived. No party may urge as error on appeal the giving of or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict. F1a.R.Crim.F. 3,39O(d). The instruction on this factor is adequate pursuant to Arave u. Creed.
113 S.Ct. 1534 (1993), in any event.
Felony Murder.
Neither the circumstance or the instruction was challenged below and this issue is waived. The language of this circumstance could not be more precise, in any event.
Majority Verdicts.
No argument on the grounds now raised was made below, This issue is barred. A simple majority recommendation is sufficient to recommend the death penalty. Brown u. State, 565 So. 2d 304 (Fla. 1990).
Aqqravatinq Factors as Elements of Crime found by Majority of This issue was never argued and is procedurally barred.
The argument that aggravating factors are elements of the crime is without merit. See, HilCJziiii7 u. State, 490 U + S + 638 (1989).
Advisory Role of Jury.
This claim was not argued below and is barred, It is without merit in any event. The jury was instructed that "the court may impose a sentence of death following a jury's advisory sentence of life only where the facts suggesting a sentence of death are so clear arid convincing that virtually no reasonable a person could differ," in accordance with Tedder u. State, 322So. 2d Counsel Wuornos hired the attorney of her choice in this case and has no standing to complain of court appointed counsel. This issue is procedurally barred as well.
Trial Judge.
This claim was never argued below and is barred. This judge was aware of the Tedder standard and acted in accordance with it, Any error is harmless.
Florida Judicial System.
This claim was never argued below and is procedurally barred. The notion that justice should be suspended for Wuornos 0 until there is parity in the election of judges is ludicrous in any event. She has no entitlement to any particular judge- Society is hardly benefit ted when a condemned murderer is utilized asa vehicle for social change.
Appellate Judge.
The specific complaints now raised were not argued below and are barred. Aggravating factors were appropriately applied to Wuornos, despite any revolving case law. Appellate reweighing is not required. See, Espinosa u. Florida, 112 S.Ct. 2926 (1992).
harmless error analysis is sufficient to cure errors. Reweighing is also unnecessary where this court undertake a proportionality analysis.
Procedural Technicalities.
The practice of procedurally defaulting claims not properly raised is authorized by the United States Supreme Court, Sec.
Wainwright u. Syhes, 433U.S. 72 (1977). The purpose is readily apparent in this boiler plate claim raised by appellant. Not even this issue was preserved below.
Tedder.
This issue is procedurally barred. Tedder. has been consistently applied. Its standard was applied by the judge in this case.
Other Problems with the Statute.
The remaining issues are notproperlypreserved. IN any event, they are either without merit or have been previously rejected.
Appellee would suggest that these claims are not raised ip0 good faith. The practice of raising unpreserved claims under on6 boiler plate point and not citing to where it was raised or rejected is vexatious and unnecessarily time consuming for the answering party. Appellee requests that this point be stricken.
CONCLUSION
Based on the foregoing arguments and authorities, appellee requests this court affirm the judgment and sentence of the trial court in all respects.
Respectfully submitted,
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
ASSISTANT ATTORNEY GENERAL
Fla. Bar #302015 210 N. Palmetto Ave.
Suite 447
Daytona Beach, FL 32114
(904) 238 - 4990
COUNSEL FOR APPELLEE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true and correct copy of the above and foregoing has been furnished by Delivery to Christopher S.
Quarles, Assistant Public Defender, 112-A Orange Avenue, Daytona Beach, Florida 32114, this / & day of December, 1993.
Of Counsel
FILED StD J. WHITE
IN THE SUPREME COURT OF FLORIDA
STATE OF FLORIDA,)
APPEAL FROM THE CIRCUIT COURT
IN AND FOR MARION COUNTY, FLORIDA
REPLY BRIEF OF APPELLANT
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL CIRCUIT
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 0294632
CHIEF, CAPITAL APPEALS
112 Orange Avenue, Suite Daytona Beach, Florida 32114
(904) 252-3367
COUNSEL FOR APPELLANT
TABLE OF CONTENTS
PAGE NO.
TABLE OF CONTENTS i TABLE OF CITATIONS ii
ARGUMENTS
IN REPLY TO THE STATE AND IN SUPPORT OF
THE CONTENTION THAT AILEEN WUORNOS'
PLEAS ARE INVALID UNDER THE FIFTH,
SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTIONS 9, 16, 17 AND 2 2 OF
THE CONSTITUTION OF THE STATE OF
FLORIDA.
IN REPLY TO THE STATE AND IN SUPPORT OF
THE CONTENTION THAT FUNDAMENTAL ERROR
OCCURRED WHERE THE TRIAL COURT FAILED TO
USA SPONTE ORDER A HEARING TO DETERMINE
APPELLANT'S MENTAL CONDITION.
IN REPLY TO THE STATE AND IN SUPPORT OF
THE CONTENTION THAT THE STATES USE OF
HEARSAY EVIDENCE VIOLATED APPELLANT'S
CONSTITUTIONAL RIGHTS TO DUE PROCESS,
CONFRONTATION AND CROSS-EXAMINATION OF
ADVERSE WITNESSES.
IN REPLY TO THE STATE AND IN SUPPORT OF
THE CONTENTION THAT THE DEATH SENTENCES
ARE NOT JUSTIFIED WHERE THE TRIAL COURT
BASED THE SENTENCES ON INAPPROPRIATE
AGGRAVATING CIRCUMSTANCES AND, IN
EFFECT, IGNORED VALID MITIGATING
CIRCUMSTANCES.
TABLE OF CITATIONS
CASES CITED: PAGE NO.
James v. Sinsletary Koenig v. State Pate v. Robinson Trawick v. State OTHER AUTHORITIES CITED:
Amendment V, United States Constitution Amendment VI, United States Constitution Amendment VIII, United States Constitution Amendment XIV, United States Constitution
IN THE SUPREME COURT OF FLORIDA
STATE OF FLORIDA,)
Appellee.)
REPLY BRIEF OF APPELLANT
POINT I
IN REPLY TO THE STATE AND IN SUPPORT OF
THE CONTENTION THAT AILEEN WUORNOS'
PLEAS ARE INVALID UNDER THE FIFTH,
SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTIONS 9, 16, 17 AND 22 OF
THE CONSTITUTION OF THE STATE OF
FLORIDA.
THE PLEAS WERE NOT INTELLIGENT OR VOLUNTARY.
Appellant dis agrees with the States contention that this issue is not properly before this Court. Ina capital case, the defendant is entitled to appellate review of the validity of a plea and the correctness of the court'saction in accepting the plea. Trawick v. State, 473 So.2d 1235, 1238 (Fla. 1985). The defendant is entitled to raise a claim that the record fails to show that the plea was intelligent and voluntary on direct appeal ina capital case, despite the absence of a motion to withdraw the plea in the trial court. This Court is required by Section 921.141(4), Florida Statutes (1991) to review the judgment of conviction, and this requires review of the propriety of the plea. Koenig v. State, 597 So.2d 256, 257n.2 (Fla. 1992).
The State contends that Appellant takes a "leap in logic1by relying on her statements at the later penalty phase to support her reasoning at the time of her plea. (AB pp. 46-47)' Appellant made statements at the time of her plea as well.
...1 am not going to get Fair trial and I am not -- I just don't want to qo through any more trials. (R682) [emphasis added]...I just hope I get sent back because Marion County has been doing lot of abusing me at the County Jail, and I just want to get back to death row.
(R711) I will seek to be electrocuted as soon as possible. There's no sense in me suffering for something I shouldn't suffer for. I hope -- I hope I get the electric chair as soon as possible.
I want to get off this crooked, evil planet. (R735) These statements were made at the time of her pleas. Wuornos' statement that she just did not want to lrgo through any more trials," should have alerted the trial court that the waiver of her presence was an important consideration to Wuornos.
Unfortunately, no one informed her that she had the right to be In the reply brief, counsel will refer to the States answer brief as (AB) with the corresponding page Number.
tried in absentia. As a result, Wuornos did not have sufficient 0 information to intelligently enter her pleas. Hence, her pleas were involuntary, since she was never informed of, in this case, an essential (to her) right.
Appellant believes that the Appellee inadvertently misconstrues Appellant's indication that her treatment at the Marion County Jail was not a factor in entering her plea. (AB P - 47). Appellant told the court at the time of her pleas:
I just hope 1 get sent back because Marion County has been doing a lot of abusing me at the County Jail, and I just want to get back to death row.
THE COURT: Wait a minute -- was that abuse in any way been targeted to try to coerced you -- coerced you or force you in any way to enter this plea?
DEFENDANT: Oh, no. I mean -- I think it'sfor me to try to kill myself or something. I don/t know what their problem is.
THE COURT:...
has that been a factor that you considered in deciding to enter this plea?
DEFENDANT: No. I don't think they had any idea I was entering this plea.
That's for sure.
(R711-12) It is clear from the above exchange that Wuornos was telling the judge that she did not believe that her treatment at the jail was a concerted effort by law enforcement to coerced her pleas. Rather, they mistreated her and she did not like it.
This treatment undoubtedly played a role in Wuornos, desire to return to Broward Correctional Institute. Anyone who has been @ incarcerated knows that prisons are more pleasant than local jails. Although her jailer did not intend for her treatment to be a reason to plead, it clearly was part of the equation.
The State also contends that Appellant failed to show prejudice where " his client would only plead again in the same fashion." (AB p. 4 8) Appellant does not believe that this Court should look down the road in an attempt to define exactly what Wuornos would do if this Court vacated her pleas and sentences.
The State asks this Court to engage ina very unusual type of harmless error analysis. Pleas to capital murder should not be subject to such an analysis and Appellant does not believe that the juries prudence of this state allows such an examination.
FAILURE TO INFORM WUORNOS OF THE MANDATORY MINIMUM SENTENCE.
Essentially, the State argues that, since Wuornos received death sentences on all counts, no prejudice is shown.
This analysis fails to envision a scenario whereby Wuornos ultimately succeed in having at least one of her death sentences reduced to life imprisonment. Since this is a distinct possibility in this era of proportionality review, the trial court's failure to inform Wuornos of the mandatory minimum (a substantial one at that) renders the pleas unintelligent and involuntary.
INSUFFICIENT FACTUAL BASIS.
Appellant contends that the cases cited in the initial brief are applicable, since Wuornos never acknowledged her guilt and never explained how the pleas were in her best interest.
Florida Rule of Criminal Procedure 3.172(d), requires:
Before the trial judge accepts a guilty or nolo contendere plea, the judge must determine that the defendant either (1) acknowledges his or her guilt or (2) acknowledges that he or she feels the plea to be in his or her best interest, while maintaining his or her innocence.
Wuornos consistently maintained her innocence throughout the plea colloquy.
As the State argues on appeal and the trial court concluded, the most obvious benefit to Wuornos' pleas was the avoidance of the Injury trial process.lt (R742) (AB p. 54) Appellant finds it quite ironic that the only ttbenefitll pleading as charged did not in fact exist. As previously pointed @ out, no one explained to Wuornos that she had the right to be tried in absentia. Hence, Wuornos obtained no benefit at all.
The pleas do not comply with due process of law or this States criminal rules of procedure.
POINT I1
IN REPLY TO THE STATE AND IN SUPPORT OF
THE CONTENTION THAT FUNDAMENTAL ERROR
OCCURRED WHERE THE TRIAL COURT FAILED TO
USA SPONTE ORDER A HEARING TO DETERMINE
APPELLANT'S MENTAL CONDITION.
Appellant dis agrees with the State that this issue should be presented to the lower court in the form of a post conviction motion. (AB p. 54) As Appellant pointed out in the initial brief, a Pate2 claim can and must be raised on direct appeal. James v. Sinqletary, 975 F.2d 1562, 1572 (11th cir.
Additionally, counsel fails to discern the eloquence of Wuornos' statements as perceived by the Assistant Attorney General. (AB p. 57) Counsel invites this Court to read 0 Appellant's rambling speeches and draw its own conclusions.
(R653-787; T1-90) Pate v. Robinson, 383U. S. 375 (1966).
POINT IV
IN REPLY TO THE STATE AND IN SUPPORT OF
THECONTENTION THAT THE STATES USE OF
HEARSAY EVIDENCE VIOLATED APPELLANT'S
CONSTITUTIONAL RIGHTS TO DUE PROCESS,
CONFRONTATION AND CROSS-EXAMINATION OF
ADVERSE WITNESSES.
Appellant did not incorrectly tell this Court that defense counsel subsequently complained about his inability to cross-examine Barry Wuornos. (AB p. 62) Trial counsel did subsequently complain about that very problem. (T788) While the complaint was an off-the-cuff remark of counsel during the cross record citation. (Initial Brief of Appellant p. 46) Additionally, Appellant fails to understand how her statements to the trial court at the plea hearing (AB p. 62) have any bearing on an evidentiary matter occurring at the penalty phase before a jury. The jury was not present at the plea hearing to hear Appellant's statements to the trial court.
POINT VII
IN REPLY TO THE STATE AND IN SUPPORT OF
THE CONTENTION THAT THE DEATH SENTENCES
ARE NOT JUSTIFIED WHERE THE TRIAL COURT
BASED THE SENTENCES ON INAPPROPRIATE
AGGRAVATING CIRCUMSTANCES AND, IN
EFFECT, IGNORED VALID MITIGATING
CIRCUMSTANCES.
IN ALL THREE CASES THE TRIAL COURT ERRED IN FINDING THAT THE
MURDER WAS COMMITTED TO AVOID A LAWFUL ARREST.
The State falls into the very trap of which Appellant warned in the initial brief. The State takes two sentences of Appellant's statement out of context and concludes that the killings were perpetrated to eliminate witnesses. (AB pp. 69-70) Appellant reiterates that, when read in its entirety, Wuornos' statement reveals that her dominate motive for the killings was rage and revenge; goJ the avoidance of arrest. Even the trial court seemed unconvinced that the elimination of witnesses was Appellant's primary motive in the killings. (T812) [I1Idan't think it has to be the primary number one factor. I think it has to be one of them. Anyway, it's an issue for appeal."] The State fails to respond at all to Appellant's separate assertion that the written findings of fact regarding this particular circumstance in the David Spears case are missing. (Initial Brief p. 68, n. 27) Appellant reiterates that without a contemporaneous written finding, this particular aggravating circumstance must be stricken from the consideration of David Spears, murder.
CONCLUSION
Based upon the foregoing cases, authorities, policies, and argument, as well as those set forth in the initial brief, Appellant requests the following relief:
As to Points I and 11, vacated the convictions and sentences and remand fora trial;
As to Points I11 through VI, reverse and remand fora new penalty phase;
As to Points VII and VIII, vacated the death sentences and remand for imposition of a life sentence or, in the alternative, as to Point VIII, declared Section 921.141, Florida Statutes unconstitutional.
Respectfully submitted,
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL CIRCUIT
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 0294632
112 Orange Avenue, Suite A Daytona Beach, FL 32114
(904) 252-3367
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been hand delivered to the Honorable Robert A.
Butterworth, Attorney General, 210 N. Palmetto Avenue, Suite 447, Daytona Beach, Florida 32114 in his basket at the Fifth District Court of Appeal and mailed to Ms. Aileen Carol Wuornos, #150924, P.O. Box 8540, Pembroke Pines, FL 33024, this 4th day of February, 1994.
Pziez
CHRISTOP R S. QUARLES
ASSISTANT PUBLIC DEFENDER
supreme court o€ jfloriba No. 8 1, 059
AILEEN CAROL WUORNOS,
Appellant, VS.
STATE OF FLORIDA,
Appellee.
[October 6, 19941
PER CURIAM.
We have on appeal t.he judgment and sentence of the trial court imposing the death penalty upon Aileen Carol Wuornos. We have jurisdiction. Art. V, 5 3 (b) (1), Fla. Const.
The present case involves three separate murder convictions against Wuornos. The first of these was of Charles Humphreys, who was reported missing by his family on September 11, 1990. The following day two young boys discovered his body in an isolated area. Law officers investigatillg the scene found that Humphreys' pockets were turned inside-out, and his wallet and car were missing. His wallet and identification later were found some fifty miles away, and the car was located behind an abandoned gas station on U.S. 90 at Interstate 10. An autopsy showed that Humphreys died of seven gunshot wounds ina pattern consistent with someone twist ing or turning while standing or lying on the ground.
The second murder was of Troy Bufress, a delivery truck driver who vanished while making deliveries on July 30, 1990.
His truck was found the next day at the intersection of State Roads 40 and 19. The keys were missing and so were Burress's delivery receipt. On August 4, Burress's body was found about eight miles away from the place where the truck had been abandoned. His wallet, credit cards, and receipt were found, but his cash was missing. An autopsy showed he had died of two gunshot wounds to the chest and back.
The third murder was of David Spears, whose badly decomposed body was found in June 1990. The body was nude except fora hat, and a used condoms was found nearby. A forensic anthropologist concluded that Spears died of six gunshot wounds.
The victim's truck was found at a separate location, abandoned witha flat tire. Spears' tool box, clothing, a ceramic pandher, the vehicle tag, and keys were missing.
Wuornos later was arrested. While in custody, she waived her rights and gave detailed confessions. At later times, she also confessed. The various confessions differed in substantial ways.
In early 1991, Wuornos was indicted for the three murders and three related armed robbery charges. On March 31, 1992, Wuornos pled no contest on all counts with advice of counsel, singing a waiver of rights form so indicating. The plea was accepted as valid and voluntary. A penalty phase then was held in May 1992.
During the penalty phase, the State introduced evidence about the circumstances surrounding the three murders. Wuornos introduced her taped confession to law officers and the testimony of her new adoptive mother, Arlene Pralle. Pralle testified that her relationship with Wuornos began after the latter prayed to God to send her a good Christian woman. Asa result, said Pralle, Jesus told her to write to Wuornos in prison. Pralle later adopted Wuornos.
Pralle related hearsay information about Wuornos' childhood, which Pralle had obtained from Wuornos' family and a childhood friend. This information portrayed Wuornos childhood as one in which she was abandoned by her parents only to be adopted by an abusive grandfather. According to Pralle, Wuornos was raped and impregnated and sent to a house for pregnant teens.
Her grandparents forced her to give up the baby for adoption.
Later, Wuornos ran away and entered a life of prostitution.
Pralle stated she did not believe Wuornos was a serial killer.
The State introduced evidence that Pralle lfscreenedl1media requests made to Wuornos and had received a $7,500 fee to appear on a broadcast show about the murders. Other rebuttal witnesses stated that Wuornos did not suffer an abusive childhood, had threatened to kill another man who had given her a ride in his car: He had seen her gun and tricked her into leaving, then sped away as she brandished her weapon. Other evidence indicated that Wuornos had professed a religious conversion during an earlier incarceration in 1982. Another law officer stated that, while being transported between prisons, Wuornos had threatened him and described aplan in which she would start a revolution and kill police officers.
The jury recommended death by vote of 10to2. The trial court concurred. IN his written order, the judge found that there were four aggravating factors in the murders of Burress and Spears: (a) prior violent felony; (b) pecuniary gain; (c) witness elimination; and (d) heightened premeditation.
In the murder of Humphreys, the trial court found these same four plus the factor of heinous, atrocious, or cruel. In mitigation, the court found that Wuornos had shown evidence of remorse and a religious conversion, and had suffered a deprived childhood.
As her first issue, Wuornos argues that her no contest plea was not intelligently or voluntarily made. Having read the record, we must respectfully disagree. With defense counsel present, the trial court below conducted an extensive inquiry into Wuornos' reasons for pleading and found the plea to be a product of a knowing and intelligent decision. Wuornos contends that this is not so in part because her chief reason for pleading was so she could return to her prison cell in Broward County, avoiding the stress of another trial. Wuornos later waived her right to be present during the penalty phase for the same reason.
While the accused may consent to be tried in absentia, there is nothing in Florida law requiring that every defendant be notified of that possibility. Any such "right" clearly is not of fundamental constitutional dimension. Moreover, we reject the concept implicit in Wuornos' argument--that judge somehow is responsible for informing a defendant about the minutiae of trial strategy. While judges certainly must ensure that defendants are aware of fundamental constitutional rights, this does not mean judges must go further and assume the role of legal counsel in explaining every avenue open to the defense. It is emphatically defense counsel'ssole to tell the defendant of strategies, consequences, and the differ ing ways trials may be conducted, such as being tried in absentia.
Additionally, Wuornos states that her plea was improper because during the plea colloquy she continued to assert her innocence, based primarily on the claim she had killed in self defense. We find that Wuornos' plea was not rendered improper.
One valid and well recognized strategy ina murder trial is to plead guilty and then appeal for mercy from the sentencer during the penalty phase. Moreover, Florida has recognized that acolorable but incomplete factual claim of self-defense is valid to negate the aggravator of cold, calculated premeditation during the penalty phase. Walls v. State, 19 Fla. L. Weekly S377 (Fla.
July 7, (1994). Wuornos' claim, in sum, was not inconsistent with her plea, because any color able claim of self-defense continued to be at issue during the penalty phase.
Nor do we think a plea becomes unallowable merely because the defendant may disagree as to legal conclusions or construction of the facts, It is highly common for defendants to do just that, even after defense counsel has advised that the defendant's interpretation is not a legally valid one. We also note that Wuornos' own statements about her innocence were at best inconsistent, as were her various confessions. She even stated at one point that her newfound religious convictions required her to plead as she did. These facts alone, without more, cannot support the conclusion that her pleas were improperly accepted. By the same token, we do not accept Wuornos argument that her plea was improper merely because she for her bargain.
believes she received no ltbenefitll Even assuming this is true, nothing in the law imposes such a requirement on criminal pleas.
We also note that Wuornos now contends the trial judge failed to apprise her of the minimum mandatory sentence of life imprisonment. However, the record dis closes that the trial court told Wuornos life imprisonment was one of two " possible sentences that can be imposed ina first-degree murder case." Later in the plea colloquy, the trial court described the penalty phase of a capital trial and Wuornos responded in the following terms:
THE COURT: If the jury comes back with a l'guiltyllverdict, then we proceed with the sentencing phase. Then the jury will hear evidence of - - of mitigation and aggravation.
There is a whole list of considerations that the Court needs to consider under the statute as to what sentence to impose--either the life imprisonment or the death sentence.
BY THE DEFENDANT: Uh-huh.
THE COURT: Did [defense counsel] Mr.
Glazer discuss all that with you as well?
BY THE DEFENDANT: Yes, sir.
(Emphasis added.) This exchange might have been more detailed, but it nevertheless establishes that the trial court and defense counsel had apprise Wuornos of, and she understood, the consequences of her plea in this regard.' We also find that there was a sufficient factual basis for acceptance of the plea.
AS her second issue, Wuornos contends that her statements in the plea colloquy were so rambling or irrational that the trial court usa sponte should have ordered her evaluate for competency to stand trial. The record also shows, however, that her defense counsel stipulated to her competency based on his study of her psychological evaluations and his personal interaction with Wuornos for more than a year.
Having read the record, we also do not find Wuornos' statements in the plea colloquy sufficiently irrational as to require the procedure she suggests. Her comments--particularly her reading of a written statement--shows some difficulty with ' We recognize the decision in State. Coban, 520 SO, 2d at 40 (Fla. 1988), where a conviction was overturned for failure to tell a defendant of the twenty-five-year minimum mandatory sentence when he pleaded guilty to first-degree murder. That case is distinguishable not merely because of the facts noted above, but also because the Coban plea was predicated on the States agreement not to seek the death penalty there. Wuornos pled without any agreement from the State; and her statements throughout the proceedings establish that she understood the consequences and fully expected to receive the death penalty.
the English language, but this is entirely consistent with her level of education. The rambling that did occur, moreover, clearly did not suggest a person devoid of her faculties. Her statements were thought fully organized toward establishing several points: her remorse, her religious conversion, and her intent to plead no contest.
Moreover, her religious comments in the plea colloquy are not sufficient reason to question her competency. Wuornos did in fact state that her religious beliefs required her to go to the electric chair; that she wanted to "get off this crooked, evil planet" as soon as possible; that she wanted to Itgo to God, go live in heaven where there's peace and harmony"; and similar remarks. These are statements generally consistent witha person professing the kind of religious conversion Wuornos claimed, and this Court therefore will not look behind them to manufacture a lack of competency. Fervently held religious beliefs do not equate to serious instability.
Third, Wuornos argues that her penalty phase was tainted by the introduction of irrelevant and prejudicial collateral crimes evidence and other collateral matters. This included testimony that Wuornos had threatened police during her incarceration; that, without provocation, she had used her gun to threaten a man who attempted to give her a ride; and that she previously had claimed a religious conversion during her incarceration on other charges in the early 1980s.
Assuming that this issue was properly preserved for appeal, we find all of this evidence was relevant to controvert Wuornos' own theory of the penalty phase. She presented evidence tending to establish that she never attacked without provocation and had undergone a recent religious conversion. Once the defense advances a theory of mitigation, the State has a sight to rebut through any means permitted by the rules of evidence.
Wuornos v. State, No. 79,484 (Fla. Sept. 22, 19941, slip op. at Fourth, Wuornos contends that the State was permitted to introduce improper hearsay testimony during the penalty phase.
This occurred when the State cross examined defense witness Pralle, who answered in the affirmative when asked if Wuornos' brother ever had stated that their childhoods were not abusive.
On direct examination, Pralle had given hearsay testimony indicating the opposite. Wuornos contends her rights were violated because she had no opportunity to question her brother in court regarding the hearsay statements.
Florida law provides that the usual rules of evidence are relaxed during the penalty phase and that hearsay evidence is permissible if a fair opportunity of rebuttal is permitted.
5 921.141(1), Fla. Stat. (1992). We have occasionally held that the lack of an opportunity to fairly rebut hearsay renders it impermissible. Dragovich v. State, 492 So. 2d 350 (Fla. 1986).
Here, however, the defense's direct examination of Pralle rested on hearsay tending to establish one fact. The State itself then rebutted witha cross-examination of thti same defense witness that tended to undermine that fact. Our conclusions might be different if the State had opened the door to the hearsay here, but that is not the case. Defense counsel opened the door and will not be heard to complain now. Under the statute, the State had a chance of fair rebuttal through similar hearsay, which it under took during cross-examination of Pralle. There was no error.
As her fifth issue, Wuornos alleges she was denied her rights when the States closing arguments urged thejuryto take its role seriously even though Wuornos already had been sentenced to death in an earlier murder. Wuornos believes this argument constituted a non statutory agqravator because it suggested jurors should return a death recommendation "just in case" the other conviction or sentence were overturned. This issue is waived for failure of defense counsel to object; and in any event, we note that defense counsel had opened the door to this matter when, during voir dire, he spontaneously told jurors that Wuornos had been convicted and sentenced to death in the earlier case.2 The State argued that this in turn required some effort on its part to assure jurors that their role was a serious one. Even if not waived, we believe there could be no error here based on the United States Supreme Court'sholding in Woman v. Oklahoma, 114 ' The trial court admonished defense counsel not to do so again.
Sixth, Wuornos argues several errors with respect to voir dire. Defense counsel at one point asked jurors to consider what they would want if they were sitting in Wuornos' place at the defense table. We agree with the State that the trial court had discretion to sustain an objection to this line of argument on grounds it constituted a type of Golden Rule argument that was not Wuornos privilege to make at this stage of the proceedings.
Next, counsel told jurors they were never required to vote for death if there was "any bit of mitigation." The States objection here was properly sustained on grounds that this was an incorrect statement of law.
Additionally, Wuornos believes error occurred when the trial court stopped defense counsel from explaining the concept of "innocence of death.l We believe the trial court had discretion to sustain the States objection: The concept of innocence of death is generally not relevant during penalty phase, since it is applicable to the problem of success ive habeas petitions. See Lawyer v. Whatley, 112 S. Ct. 2514, 120 L. ED. 2d 269 (1992). The only relevant issues in the penalty phase are the finding of aggravating and mitigating factors and the assignment of their relative weights. We also agree with the State that the trial court had discretion to sustain the States objection when defense counsel attempted to tell jurors what evidence they could view as relevant. Questions of relevance are strictly legal matters for the trial court to decide, and such matters certainly are irrelevant during voir dire.
As her seventh issue, Wuornos argues that there was insufficient evidence to support some aggravating factors found by the trial court, and that valid mitigating factors were improperly ignored. Ina general sense, we first find that the premise underlying Wuornos' argument--that the relevant evidence was conflicting--does not of itself undermine a trial court's findings on aggravators and mitigators. The States theory of the case prevailed here, and we therefore view the record in the light most favor able to the prevailing theory.
Thus, although Wuornos attacks the finding that she committed murder for pecuniary gain, we find her argument unpersuasive. Wuornos' theory was that the taking of property from her victims was an after thought and revenge for being abused by them, but the States theory was that it was a primary motivating factor for the murders. We note not only that the States theory prevailed on this aggravator, but the States theory is more consistent with the facts of the murders than was Wuornos'. The admissible collateral crimes evidence also seriously under mined Wuornos' theory.
A similar conclusion applies to the trial court's finding that witness elimination occurred, thereby aggravating the crime further. Wuornos herself stated in one of her confessions that she killed to eliminate witnesses. This confession together with the physical evidence of the murders was sufficient to support the States theory here. The factor therefore has been proven beyond a reasonable doubt:? See Wuornos v. State, No. 79,484 (Fla. Sept. 22, 1994). We also find that the States theory on the factor of cold calculated premeditation prevailed, is consistent with the facts, and was proven beyond a reasonable doubt. See id.
Next, Wuornos alleges that the factor of heinous, atrocious, or cruel was not proven with respect to the Humphreys' murder. Again, we find that the States theory prevailed, is supported by the facts, and has been proven beyond a reasonable doubt. The physical evidence showed that Humphreys had suffered bruises and abrasions and was shot while in the act of twist ing or writhing ina vain effort to avoid his attacker. These facts support the finding that this aggravator was present.
As to mitigation, we first must address a procedural matter. Wuornos argues that we should take judicial notice of the case for mitigation presented in Wuornos v. State, No. 79,484 (Fla. Sept. 22, 19941, and apply it to the instant proceeding.
This we may not do. The entire reason for having a trial ina court of record is so that the appellate courts of Florida may review questions of law based on a true transcript of what occurred. While judicial notice of other proceedings certainly is permissible in some instances, it is not proper when the party The defense notes a possible typographical error in the relevant finding on the Spears' murder: The trial court mentions Humphreysl name. However, this statement about Humphreys was merely an inclusive remark about all three of the murders. The trial court specifically finds the factor present for "the Defendant" Spears. We therefore find no error in this regard.
in effect is asking that we use a wholly separate proceeding to establish a mitigating factor that, was not asserted at any time in the proceedings below.
Proceeding to the merit issues raised by Wuornos, we note that the trial court's written findings properly stated its duty to weigh and consider aggravating factors under the principles announced in Rocrers v. State, 511 So. 2d 526 (Fla. 19871, cert.
and Campbell v. State, 571 So. 2d 415 (Fla. 1990). In this vein, the trial court made the fo 1low ing findings:
1. Asa child, the Defendant was allegedly physically abused in the homes in which she was raised. Hearsay testimony from the Defendant's adoptive mother presented evidence that the Defendant's grandfather, characterized as an alcoholic, allegedly inflicted physical abuse on the Defendant.
The statements purportedly came from the Defendant and a childhood friend of the Defendant. The State presented rebuttal evidence in the form of hearsay testimony from an investigator in the Citrus County Sheriff's Department. This investigator traveled to Michigan and interviewed the family members of the Defendant who denied that any physical abuse occurred within the home. Additionally, the State presented evidence that the same childhood friend, who allegedly told the adoptive mother of the abuse, denied any such knowledge to law enforcement.
2. The Defendant allegedly expresses remorse for the commission of this murder and the murders of other victims. The Defendant's adoptive mother presented hearsay testimony that the Defendant has allegedly experienced a religious conversion and is sorrowful for her past deeds. However, the State presented evidence that, subsequent to the alleged religious conversion, the Defendant, without provocation, threatened the lives of law enforcement officers.
Additionally, the Court heard testimony that the Defendant has made similar claims while she was imprisoned in 1982.
The Court finds that the above factors are not supported by the greater weight of the evidence. But even if they were, it is clear that by any reasonable assessment and evaluation of the evidence in the record, the aggravating circumstances overwhelmingly outweigh the evidence presented in mitigation.
We cannot fault the trial court's determination even under the standards of Rogers and Campbell. The vast bulk of the case for mitigation was hearsay. While hearsay can be admissible in the penalty phase, we cannot conceive that there is any absolute duty for the trial court to accept it in mitigation where, as here, the States rebuttal established strong indicia of unreliability.
We find no error in the findings in mitigation.4 Finally, Wuornos raises a variety of issues reflecting on the constitutionality of Florida'sdeath penalty statute. Only one deserves any discussion. Wuornos contends that the jury instruction on cold calculated premeditation was constitutionally inadequate. We have recognized that this is true for the instruction actually given here. However, the issue is procedurally barred if no objection was raised below as to the constitutionality of the instruction. Jackson v. State, 19 Fla.
L. Weekly S215 (Fla. Par. 21, 1994). That being the case here, We recognize that in Wuornos v. State, No. 7 9, 484 (Fla.
Sept. 22, 19941, we found several mitigating factors. However, nothing remotely resembling the same theory of mitigation was presented here. AS noted above, we cannot take judicial notice of another case to establish mitigating factors. Based on this particular record, the trial judge's findings are correct.
the issue is waived. The remaining issues also are waived for failure to raise a timely objection or because they are entirely without merit, or both.5 Having independently reviewed the record for further errors, and finding none, we affirm both the convictions and sentences.
It is so ordered.
CRIMES, C.J., OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice, concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
These are: (1) that the instruction on heinous, atrocious, or cruel is constitutionally inadequate; (2) that the felony murder aggravator renders the death penalty statute unconstitutional; (3) that the statute is invalid because a death recommendation may be based on a simple majority; (4) that the statute is invalid because it makes elements of the underlying crime into aggravators; (5) that the standard jury instructions violate Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985); (6) that Florida's system for designating court-appointed counsel violates the Constitution because it results in representation by inexperience counsel;
(7) that the trial court's role is impermissibly ambiguous; (8) that Florida's judicial system violates the Constitution because its offices are filled by discriminatory means; (9) that Florida's death penalty statute no longer comports with the requirements of Proffitt v. Florida, 428U.S. 242, 96 S. Ct.
2960, 49 L. Ed. 2d 913 (1976); (10) that death sentences are unconstitutionally sustained on technicalities; (11) that Florida has maintained and applied contradictory law on the subject of jury over rides; (12) that the lack of a special jury verdict on aggravating and mitigating factors renders Florida'sdeath penalty statute improper; (13) that Florida Rule of Criminal Procedure 3.800(b) violates the Constitution; (14) that Florida law improperly presumes that death is the proper penalty if only one aggravator is found; (15) that the jury instructions given here improperly denied the jury any authority to consider sympathy to the accused; and (16) that electrocution is cruel or unusual punishment.
AN Appeal from the Circuit. Court in and for Marion County, Thomas D. Sawaya, Judge - Case No. 9 1 - 112 - CF James B. Gibson, Public Defenderand Christopher S. Quarles, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant Robert A. Butterworth, Attorney General and Margene A. Roper, Assistant Attorney General, Daytona Beach, Florida, for Appellee
FILED
SID J. WHITE
IN THE SUPREME COURT OF FLORIDA DEC 21 1993
AILEEN C. WUORNOS,
Chief Deputy Clerk Appellant,
STATE OF FLORIDA,
Appellee.
APPEAL FROM THE CIRCUIT COURT
INANDFORPASCO COUNTY
STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
JAMES MARION DOORMAN
PUBLIC DEFENDER
TENTH JUDICIAL CIRCUIT
PAUL. HELM
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NUMBER 229687
Public Defender'sOffice Polk County Courthouse Bartow, FL 33830
(813) 534-4200
ATTORNEYS FOR APPELLANT
TYPICAL INDEX TO BRIEF
PAGE NO.
ISSUE I
BECAUSE APPELLANT INSISTED THAT SHE
WAS INTOXICATED AND ACTED IN SELF-
DEFENSE, THE TRIAL COURT ERRED BY
ACCEPTING HER GUILTY PLEA WITHOUT
CONDUCTING AN ADEQUATE INQUIRY TO
DETERMINE THE FACTUAL BASIS FOR HER
PLEA AND THE VOLUNTARY AND UNDER-
STANDING WAIVER OF HER CONSTITUTION-
ISSUE 11
THE TRIAL COURT ERRED BY ACCEPTING
APPELLANT'S WAIVER OF HER RIGHTS TO
TRIAL BY JURY. TO BE PRESENT, AND TO
PRESENT EVIDENCE OF MITIGATING CIR -
ISSUE I11
THE TRIAL COURT ERRED BY FAILING TO
ORDER A RE-EVALUATION OF APPELLANT'S
COMPETENCY WHEN HER CONDUCT AT THE
PENALTY PHASE TRIAL AND SENTENCING
HEARING WAS SO IRRATIONAL IT RAISED
REASONABLE GROUNDS TO BELIEVE SHE
TYPICAL INDEX TO BRIEF (continued)
ISSUE IV
THE TRIAL COURT ERRED BY FINDING
AGGRAVATING CIRCUMSTANCES WHICH
WERE NOT PROVEN BEYOND A REASONABLE
ISSUE V
THE FELONY MURDER AGGRAVATING CIR-
CUMSTANCES IS UNCONSTITUTIONALLY
OVERBROAD BECAUSE IT FAILS TO NARROW
THE CLASS OF PERSONS ELIGIBLE FOR
ISSUE VI
THE TRIAL COURT VIOLATED THE EIGHTH
AND FOURTEENTH AMENDMENTS BY FAILING
TO FIND AND WEIGH SEVERAL MITIGATING
CIRCUMSTANCES SHOWN BY THE
ISSUE VLI
THE TRIAL COURT VIOLATED THE UNUSUAL
PUNISHMENT PROHIBITION OF THE FLORI-
DA CONSTITUTION BY IMPOSING A DIS-
APPENDIX
CERTIFICATE OF SERVICE
TABLE OF CITATIONS
CASES PAGE NO.
Aqan v. Duqqer, 835 F. 2 d 1337 (11th Cir. 1987), cert. denied, Anderson v. State, 574 So. 2d 87 (Fla.), cert. denied, - U.S. -, Andrews. State, Aravev. Breech, Band v. State.
536 So. 2 d 221 (Fla. 1988). cert. denied, Boykin v. Alabama, Brady v. UnitedStates, Campbell v. State, Cannady v. State.
Cannady v. State, Carter v. State, Cheshire v. State, Clark. State, Clark. State.
Crump v. State, iii TABLE OF CITATIONS (continued) Dailey v. State, Davis v. State, Davis v. State, DeAncrelo v. State, Drope v. Missouri, Duracher v. State, 604 So. 2 d 810 (Fla. 1992), cert. denied, Dusky v. UnitedStates, Eddinqs v. Oklahoma, Elledue v. State, Enqberq v. Meyer, Espinasav. Florida, Farettav. California, Far v. State.
Fitzpatrickv. State, Geralds v. State, TABLE OF CITATIONS (continued) Godinez v, Moran, Gore v. State, 599 So. 2d 978 (Fla.). cert. denied, U.S. -, Hall. Wainwriqht, 733 F. 2 d 766 (11th Cir. 1984). cert. denied. 471 U. S. 1107, Hamblen v. State, Being v. State, Henderson. Morsan, Henry v. State, Hill. State.
Huff v. State.
Hunt v. State, Illinois v. Allen, Johnson v. Mississippi, Jones v. State, Jones. State, Klokoc v. State, TABLE OF CITATIONS (continued) Koeniqv. State, Koo v. Duqcrer, Kramer v. State, Lowenfield. Phelps, Maulden v. State, Maxwell v. State, Nibert. State, North Carolina. Alford, Nowitzke. State, Parker v. State, 458SO. 2d 750 (Fla. 1984), cert. denied, Parker. Duqqer, Peede v. State, 474 So. 2d 808 (Fla. 1985). cert. denied.
Penryv. Lynauqh, Perry v. State, Petitv. State, 591 So. 2 d 618 (Fla.). cert. denied, TABLE OF CITATIONS (continued ] Pope. State, Power v. State, Pridcren v. State, Robertson v. State, Rosers. State, 511 So. 2d 526 (Fla. 1987). cert. denied, Scott. State, Sireci. State.
587 So. 2 d 450 (Fla. 1991). cert. denied, Soncrer v. State, State. Cherry, State. Dixon, 283 So. 2d1 (Fla. 1973), cert. denied, State. Kendrick.
State. Lyles, State. Middlebrooks, 840S.W.2d 317 (Ten. 1992), cert. granted, Stevens. State, Tillman. State, vii TABLE OF CITATIONS (continued Trushin v. State, White v. State, Zant v. Stephens,
OTHER AUTHORITIES
U.S. Const. amend. VIII. S. Const. amend. XIV
§ 921.141(5)(b), Fla. Stat. (1991) 2 9, 67
s 921"141(5)(i), Fla. Stat. (1991) 2 9, 59 viii
PRELIMINARY STATEMENT
This appeal is taken from a judgment of guilt for first-degree murder and sentence of death imposed by the Circuit Court for the Sixth Judicial Circuit, Pasco County. The appellant, Aileen Carol Wuornos, has three other capital appeals pending in this Court, case Number 79,484, 81,059, and 81,498.
References to the record on appeal are designated by " R " and the page number. References to the transcript of the penalty phase trial are designated by "T" and the page number. References to the appendix to this brief are designated by " A " and the page number.
STATEMENT OF THE CASE
On April 16, 1991, the Pasco County Grand Jury indicted the appellant, Aileen Carol Wuornos, for the first-degree murder of Charles E. Carskaddon between May 31 and June 6, 1990. (R 1) On June 22. 1992. Wuornos appeared with counsel before the Honorable Lynn Tepper, Circuit Judge, and pleaded guilty. (R 30- On July 14, 1992, the court granted defense counsel's motion for the appointment of experts to examine Wuornos and determine her competency to proceed. (R56 - 5 8, 61-62, 241-48) On September 17, 1992. the court found Wuornos competent. (R78, 282, 285 - 8 6) On January 2 5, 1993, the penalty phase trial was conducted before the Honorable Wayne 1;. Cab, Circuit Judge. (T 1-182) Wuornos appeared with counsel and waived her rights to have a jury, to present mitigating evidence, and to be present. (R92 - 9 4; T 10- 32) On February 5. 1993, the court adjudicated Wuornos guilty of first-degree murder and sentenced her to death. (R 100-12, 119-28) Defense counsel filed a notice of appeal. (R 113)
STATEMENT OF THE FACTS
A. Plea Hearing Defensecounselfirsttenderedapleaof no contest. which the court rejected. (R 192-96) Wuornos thendecidedtopleadguilty.
(R 196) A writtenpleaformsignedbyWuornos was modifiedto reflecttheguilty plea. (R 30-34, 196-97) The courtplacedWuornosunderoath, (R197 - 9 8) then inquired to determinethatshehadaninthgradeeducation. was not taking any medication, was notundertheinfluenceofalcoholordrugs, andhadnever been adjudgedincompetent. Wuornos said, " Ishouldhavebeen on my confessionaltranscriptsinvideotaping. " (R 198) The court then determined that Wuornos was not claiming to be incompetent atthe present time, but felt she was incompetenton thedateoftheoffensebecause " Iwasdrunkandeverything else."
(R 199) The court explained that intoxication does not make someone incompetent, butitcan be defense, and she was waiving the defense by pleading guilty. Wuornos saidsheunderstood, then indicated she wantedtotakehercasetotheSupremeCourtbecause shecouldnot get Fair trial. (R 199) The court attempted to explain that if Wuornos's plea was accepted. she could only appeal the validity of the court's acceptance of herpleaandnotherguiltorintoxicationdefense.
(R 199-200) Wuornosresponded, "I ain'tnevergoingtogetafair trial. I'mpleadingguiltyinself - defenseandIamnotgoingto go throughatrial. 'I (R 200) Thecourttoldhershe was makingit difficultforthecourttoaccept her plea. Wuornos answered, " I ' m pleading guilt'-I'm guilty. Ikilled him. But I ' m saying selfdefenserightto my grave. " (R 200) The courtaskedifsheunder - stoodthatshe was waivingherrighttoself - defenseandcouldnot argue self-defense to the Supreme Court. (R 200-01) Wuornos respondedthatshewantedto " get the crooked cops, " shedidnot careaboutatrialorher own death. (R 201) The court then asked defense counsel if he had discussed Wuornos'sconcernswithher. Counselsaidhehad done so atgreat length, and Wuornos understoodshewasgiving up herdefensesof self-defense, intoxication, and insanity. He asserted that "she understands exactly what is happening here and she is competent to make these decisions. " (R 201) The court then determined that Wuornos understood she could not challenge the actions of the police in taking her statement. (R 201-02) Defense counseltoldthecourtthatfourdoctors had examined Wuornos andreportedthatshe was competentto go totrialand was notinsaneatthe time of the offense. He alsostatedhispersonalbeliefthatshewasnotinsane, understood what was goingon, and was infullcontrolofhermentalfaculties. (R 202) The court then questioned Wuornos tolearnthatsheh ad neverbeentreated formentalillness, had discussed her case with counsel, and was satisfied with his services. (R 202-03) She hadreadtheplea form and saidsheunderstoodit and signed it freely and voluntary - ly. (R 203-04) Defense counselassuredthecourtthat he had gone overtheformwith Wuornos andsheunderstoodit. The court had hersignthe changes inthe form. She also complained about her treatment atthe county jail, claiming theynearlykilledherthe last time shewasthere. (R 204) Asafactual basis fortheplea, theprosecutorsaidtheState
couldprovethat; Carskaddon was lastseenaliveon May 31, 1990, when heleft home onatripto Tampa inhisCadillac. He possessed a firearm. (R 205) Hisbody was foundinPascoCountyonJune6, 1990, buthisvehicle and its contents were missing. The medical examinerdeterminedthatgunshotwounds were thecauseofdeath.
Eight 'l.20 caliber" bullets were recovered from the body. His vehicle was found. Wuornos was arrested and admitted shooting Carskaddonand six others. (R 206) All of thevictimshadbeenshot numerous times, and all but one were shot witha - 22caliber revolver. (R 206-07) Wuornos had been seen in possession of Carskaddon ' scarandhad pawned his gun. She indicatedthatall of the deaths were theresultofself - defense. (R 207) When thecourt offered Wuornos theopportunitytospeakabout;
the facts of the case, she complained about lies in the news accounts of her cases, crooked police officers, theunjustjudicial system. a movie portrayingherasthefirstfemaleserialkiller, and policeofficersreceiving $500,000 eachforthe movie contract.
(R 207-09) She also assertedthatherconfession " stated self defense totally, whichtheyhidfromthejuryattheMallorytrial, and they have hid from the public eye." (R 208-09) The court explainedthatthisissue was subjecttoappealinthatcase, but there would be no guiltphasetoappealinthis case becauseofher guilty plea. Wuornos agreedthatthis was whatshewantedto do.
(R 209) Wuornos complained about a former defense attorney, but she was pleased with her present attorney. (R 210) The court found there was a factual basis for the plea, and it was entered knowingly. intelligently, freely, and voluntarily with the assistance of competent counsel. The court accepted the plea.
(R 210-11) When the court scheduled the penalty phase trial for July 14, Wuornos sought to waive her presence. (R 212-17)
B. Competency Determination On July 14, 1992. defense counsel presented a letter from DR.
Harry Krop, who had been appointed to provide confidential advice to the defense, stating that he had re-examined Wuornos on July 10, 1992, and found that; she was delusional. perceived her lawyer as part of a conspiracy, was incompetent to proceed, and that her ability to rationally participate in plea bargaining was significantly impaired. (R 49-51, 176, 241-42) Defense counsel explained that he requested the re-evaluation because he had seen a "particularly bizarre" change in Wuornos's behavior over the last 30 days.
Counsel questioned whether Wuornos had been competent to waive her presence. (R242) Counsel asked the court to have another expert evaluate Wuornos. (R 243) The court granted the request and entered orders appoint ing DR. Donald DelBeato and Dr. Joel Epstein to evaluate Wuornos's competence to stand trial. (R 56-58, 61-62, Dr. DelBeato reported that he examined Wuornos on August 7.
1992. (R 177. p. 1) He found that she was competent to stand trial, but she suffered from a borderline/antisocial personality disorder. (R 177, p. 3-5) Dr. Epstein reported that he examined Wuornos on August 6, 1992. (R178, p. 1) He found that she was competent. but she suffered from a personality disorder. (R 178, On September 17, 1992, the court conducted a competency hearing with defense counsel appearing by telephone. (R 282-86) Defense counsel stipulated that the court could make its finding based on the reports submitted by Dr. DelBeato and Dr. Epstein.
The court found Wuornos competent. (R 286)
C. Penalty Phase On December 10, 1992, the court granted a State motion to have Wuornos examined by mental health experts for the purpose of presenting penalty phase evidence and ordered examinations by DK.
Sydney Merin and DR. Daniel Sprehe. (R 78-79) On January 7, 1993, DR. Sprehe reported that he attempted to examine Wuornos on January 6, 1993, but she refused to cooperate during a "rather brief" interview in which she explained that she had waived mitigation.
Dr. Sprehe concluded that Wuornos was competent and there was a reasonable medical probability, but not a reasonable medical certainty. that she had a personality problem but was not under the influence of extreme mental or emotional disturbance and her capacity was not substantially impaired. (R 179) There is no record of any report filed by Dr. Merin.
The State filed two pretrial motions in limine. The first sought to preclude the defense from presenting a claim of self defense on the ground that it was foreclosed by Wuornos's guilty plea. (R 83-84) The second sought to exclude evidence that Richard Mallory, the Volusia County murder victim, had committed or was prosecutedforapriorrape. (R 85-86) The motionswereheardatthebeginningofthepenaltyphase trial on January25, 1993. (T 5) Defense counsel informed the court that he would not present the contested evidence about;
Mallory. (T 6) Regarding the first motion, the prosecutor argued that evidence of residual doubt is not admissible. (T 6-7) Defensecounselarguedthatthe State wasgoingtotrytoprove that the crime was cold, calculated, and premeditated, so the defensewasentitledtorebuttheclaimthatthere was nopretense of legal justification by sh o win that Wuornos thought she was acting in self-defense. (T 7-8) When the court asked what evidence he would present, defense counsel stated that he could play Wuornos's 3 1/2 hour confession, in which she said " self - defense " over40times, orhecouldaskDetectiveHorzepa how many timesshementionedself - defenseduringthe confession. Also, itwould come outduringthedoctors ' testimony. (T 8-9) The court ruledthatWuornoscouldtestifyshethought it was self - defense, butt was nototherwiseadmissible. (T 9) Counsel responded that inoneortwocases Wuornos explained why shefeltthreatenedand did the only thing she thought possible, and the doctor would explain she felt that way because of her lack of insight and personality disorder. (T 9-10) Defensecounseltheninformedthecourtthat Wuornos wantedto waive the jury, presentation of mitigating evidence, and her presence. (T 10-13) Wuornos was presentfollowingarecess. (T 14-15) The courtdeterminedthatdefensecounselhaddiscussedthe waiver of mitigatingevidencewithher, and askedcounseltostate what evidence would have been presented. (T 15) Defense counselrespondedthat Dr. Rropwouldhavetestified Wuornos sufferedfromaborderlinepersonalitydisorder, and DR.
DelBeato would say she had signsofbothantisocial and borderline personality disorders. (T 16) IN Dixie County, thecourt allowed jury instructions on threemitigatingcircumstances: extreme mental oremotionaldistress, impaired capacity, and nonstatutoryfactors.
(T 16-17) The DixieCountycourtallowedcounseltoargueself - defenses her state of mind. Det. Horzepatestifiedthat Wuornos mentioned self-defense over 40 times and explained how the men rapedorassaultedherand how she reacted. (T 17) Defense counsel furtherstatedthat Wuornos's sister, Lori Grodd y, testified that; Wuornos was adopted, and there were signs she was developing an antisocial personality in adolescence.
Wuornos hadtroublewithschoolandtruancy. She had a hearing deficit for which sheneverreceivedhelp. Herparents were told she needed counseling. but she never received it. Wuornos became aprostituteatage 16. Shebecamepregnant when she was 13 or14 andhadtohide it fromherfamily. She was senttoa home for runaway mothers, andthechildwastaken away from her. She spent some timeintheAdrianSchoolforGirlsreformatory. Her brother was alsosenttoareformatory. The two adopted children had trouble, while the family's natural children did not. (T 17-19) Finally, Dr. Krop would testify that Wuornos's family was dysfunctional, and Wuornos suffersfromalcoholdependency. (T 19) The prosecutor asserted that Dr. Krop also found Wuornos was competenttodecidenotto be present. (T 19) The courtthenaskedWuornosifshewantedto waive her right to present mitigating evidence. (T 19) She answered yes and added thatshedidnotwantto be present. She explainedthatshefelt it was unnecessarybecauseshealreadyhadfivedeathsentences.
She complained that male serial killers only receive about two death sentences, while she was beingdraggedthrougheverycasefor no reason but "political lime lighting and promotional gain or capitalgainyoucanreceive off of these." She was tiredof it and wanted to waive everything. " I don'tcare. Ijustwantto go backtodeath row and be left alone. " (T 19-20) The court asked Wuornos if she had been present in the sentencing phase. (T 20-21) She replied she had been present through all these things. She said, I understand exactly what's going on, and Understand, tootheconspiracy of tryingto findanykind of reapingoff of these cases, offof my blood, before go tothe chair.
This is unnecessary. I've got five death sentences. Why one more? How many timesdo youpeoplewanttokill me? You canonlykill me once.
(T 21) The court thendeterminedthatWuornosunderstood what the sentencing phase was for, andtherewouldbeanautomaticappealof any death sentence, while an appeal from a life sentence was optional. (T 21) Wuornos respondedthatshedidnotexpectalife sentence, it wastoolateto change the dirt and conspiracy by the court, prosecutors, and police. Ifhersentence were overturnedto life, she would " tell them I'll kill again." She wanted an acquittalordeath, declaring, " I know I ' innocent. God knows I ' m innocent. But you peoplearenotinnocentinwhatyou ' redoingto me through these cases. " (T 21-22) The court told Wuornos defense counsel represented her and recommended thatshepresent; mitigating evidence, and asked ifshe were familiarwiththatevidence. Sheansweredthatshe knew all aboutit, adding, "1don ' tgiveashit, doyouunderstandthat? I don't care." (T 22) When askedifshewantedcounseltopresent the evidence, she said the court could sentence her to death right then, it did not matter toher, she would waive anappeal. "All I care about is goingtoGod, because know I ' m innocent. And letting God takecareofyoupeopleonearthforthedirtthatyou didto my cases. " (T 22) Finally, she saidshedidnot want counseltopresenttheevidence, statingthatshewasnot afraid to die, andreiteratingthat God wasonherside, andshewasinno - cent. (T 23) Wuornos asserted that she did not want to go through any more trialsbecausethe prosecutors wouldcontinueto lie about her. Sheintendedtowritea book to revealthetruth.
(T 23-25)
Thecourtasked Wuornos ifshewantedajury to recommend a sentence. Wuornos repliedthatshewouldnotacceptlife. She did not care what the jury said because they had been told so many lies. She preferredto have thecourtsentenceherbecause she just wanted to be left alone. (T 25-26) The courtdeterminedthat Wuornos haddiscussedthiswithdefensecounselandunderstoodthat he recommended having a jury. (T 26-27) The court also determined that Wuornos did not want tobe present for the penalty phase trial. (T 27) The prosecutorprovidedwrittenwaiverformsfortherightsto be present, to present mitigating evidence. and to have a jury.
Wuornos read and signed the forms. (R 92-94; T 28) The court recommended that Wuornos should be present and should present mitigating evidence to a jury, butWuornosreassertedherdesireto waive those rights. (T 29) She again complained about people seeking promotions and publicity from her cases and that they wanted tokillher and didnotcareaboutherinnocence. (T 29) The courtaskedifdefensecounselhadtoldheritwouldallowher topresent some evidenceofherbelief that she acted in self defense. Wuornos replied yes, butitdidnotmatterbecausethe publichadbeentoldso many lies. (T 30) Wuornos complainedthatthejudge who presidedathertrial inanothercase made a mockery ofthetrialand was totallyonthe State ' s side. She felt she would never getafairtrial, saying she was "spit; on. laughedat, mocked at and lied upon. " She felt no one cared because of "the number," and because she was a prostitute, a female. and a hitchhiker. (T 31) When the court acceptedherwaiverofherrights. Wuornos said. " I ' m sick of this shit, " and, "Let's just get the fucking thing over." (T 31-32) The court recessed before presuming the proceedings in Wuornos's absence. (T 32-33) The court admitted four State exhibits without objection.
Each exhibit was a certified copy of Wuornos‘prior judgments and sentences. Exhibit 1 was for robbery in Volusia County. Exhibit 2 was for first-degree murder and robbery in Marion County.
Exhibit 3 was for first-degree murder and armed robbery in Marion County. Exhibit 4 was for first-degree murder and armed robbery in Citrus County. (T 33-34) The prosecutor said Detective Pinner would bring certified copies of Wuornos's first-degree murder judgment and sentence from Dixie County. Defense counsel offered to stipulated to that fact if the prior record was established. The prosecutor asked the court not to consider an additional first degree murder conviction in Volusia County. (T 34) Detective Thomas Muck of the Pasco County Sheriff'sOffice testified that two fisherman found a body near Pittman Pond about two miles west of the 1-75 and State Road 52 intersection on June 6, 1990. (T 35-36) Muck went to the scene and saw a nude body under a green electric blanket. (T36) No personal belongings were found, (T 36-37) Muck learned that another man‘s body was found in Citrus County on June 1, and there had been similar homicides in other counties. (T 37) Florence Carskaddon called Muck and said her son Charles' Cadillac, shown in States exhibit 5, had been recovered near the interstate in Marion County on June
13. Charles Carskaddon's body was identified from fingerprints on September 1 2. (T38) He was 40 years old. Bullets were recovered fromhisbodyandsubmittedtothe FDLE lab. whichdeterminedthat they were. 22caliberandwerefiredfroma weapon witha six right twist. (T 137) Law enforcement officers fromCitrus. Marion, Volusia.
Dixie, and Pasco Countiesformedataskforce. Wuornos and Tyria Moore became suspects. Muck found that Wuornos hadlivedinPasco County in 1985. (T 39) WUOK ~ O Was arrestedinDaytonaBeach on January9. She had a key to storage room which was searched pursuant too warrant. The officers found Carskaddon's Indian blanket and personal property from other victims. (T 40) Exhibit 6wasaphotooftheblanket and other items. (T 41) The officers found Carskaddon's. 45automatic pistol, exhibit8. atthe Labosca Investments pawn shop. Ithadbeen pawned byWuornosunderthe name Cammie Greene. The fingerprintonthe pawn ticket. exhibit7.
matched Wuornos's. (T 41-43) The pistol had beenpurchasedby CarskaddonfromagunshopinKentucky, as shown byexhibit9 # a federalfirearmtransaction record. (T 42-44) Wuornos made avideotapedconfessionin which she admitted shooting Carskaddon. (T 44) On cross - examination. defense counsel asked whether Wuornos mentioned self - defense. Muck believed she did, buthe was not certain. (T 45) PascoCountycrimescenetechnician Brian MacMillantestified that he went to the Pittman Pond scene on June 6, 1990. He photographedthegreenblanketcoveringthe body. exhibit10. (T 46-47) Healso took aerialphotosofthecrimescene, exhibits11 and 1 2. aphotooftheareaaroundthebodybeforeit was uncov - ered, exhibit13, aphotooftheuncoveredbody, exhibit14, and a photo of the car in Ocala. exhibit 5. (T 48-50) MacMillan processed the car, but he did not find any items of personal property. (T 50) He compared Carskaddon ' s known prints from Noise. Idaho, with fingerprints from thebodyandfoundthey were identical. (T 51) He compared Wuornos ' s known printswiththe print on the pawn ticket, exhibit8, and found that it matched Wuornos'sright thumb. (T 51-52) Florence Carskaddan testified that she livedinPerryville, Missouri, and was CharlesCarskaddon ' s mother. (T 53) The car shown inexhibit5 was her son ' s1975 " Caddy. " Mrs. Carskaddonidentifiedtheblanket shown inexhibit6ashes son's. (T 54) Her son had apistoljustlikeexhibit7. (T 55) On May 31, 1990.
hersondrovehiscar from herhouseonhis way to Tampa togethis girlfriend and move to Missouri. He had his -45. the Indian blanket. and a green electric blanket. (T55 - 5 6) Dr. Joan Wood, theSixthCircuit medical examiner, observed thebodyatthescene and performedanautopsyonJune6, 1990. (T 58-59) She found eight bullets inthe lower chest and upper abdomen and fragments of a ninth in the left arm. The bullets entered the front of the body. (T 59-60) The multiple gunshot woundsofthechestand abdomen were thecauseofdeath. (T 62) Defense counsel expressly waived any objectionstoWilliams Rule evidence. (T 63) Bobby Lee Cops, atruckbroker, testified thathewasatatruckstopinHainesCity on November 4, 1990.
when atruckdriveraskedifhecoulddrivealadywhosecarhad broken down toDaytonaBeach. Shehad two children in day care.
Copasrespondedthat; he was onlygoingtoOrlando. The lady was Wuornos. She askedif he would drivehertoOrlandoifshecalled hersisterto meet them there. Cops agreed. (T 64-65) Astheydrove away onHighway27, Wuornos shockedCopas by sayingsheneeded Mooney andpropositioninghim. (T 65-66) Cops declinedbecausehe was married. Wuornos had beenrealnice, a "sweetheart." But when sheopenedherpurse fora comb. Cops saw the butt of pistol. Wuornos made another. more graphicofferif he would pull into an orange grove. (T 66) Cops again refused and noticed Wuornos was becoming aggravated. (T 66-67) "Her personality changed. She became more aggressive, meaner. " (T 67) Wuornos made a third, "very derogatory" offer. Cops decidedtogetherout of hiscarandpulled into agasstation near1-4. (T 67) He toldherto call hersistertotellherhe would driveherto Daytona and gave her $ 5. When shegotoutof the car, helackedthedoorsandbeganclosingthe window. Wuornos " really got mad...went off the deep end,'" and said, "Well, I'll just kill you likeIdid all themotherold mother fucker. " (T 68) Wuornos came around the car mumbling inher purse. Cops began todrive away. Wuornos said. "With ataglike Cops. I'll get you one day. " (T 68) On cross - examination, Copassaid Wuornos was niceatfirst, buthadapersonalitychange when heturnedher down. (T 69) He felthehadtoagreewitheverythingshe said. He hadnevermet anyone quitelikeher. (T 70) Captain Jerry Thompson of the Citrus County Sheriff's DepartmenttestifiedthatthebodyofDavidSpears was foundbya surveyorina wooded trash dump area near US 19onJune1, 1990.
(T 71-72) The body was nudeexceptforaballcap. He was lying on hisbackwithhis arms andlegsspread. The officers found seven. 22casings, beer cans, used condoms. anda Trojan package.
(T 73) The medical examiner found six. 22projectilesinthechest and abdomen. Death was causedbythemultiplegunshotwounds. (T 74) Two bulletsenteredtheback. and therestenteredthefrant ofthe body. The projectiles were firedbya " sixrighttwelve " weapon. (T 75) Thompson learnedthatSpearswasaheavyequipmentoperator fromSarasota who disappearedafterreceivinga $ 355pay check. (T 76) No Mooney or personal belongings were found atthe scene.
SpearsleftworkinSarasotaaround 12:10 p.m. on May 1 9, and was expected home inOcoee, near Orlando around 3:00. He had tools, clothing, andablackpanthersculpture for hisex - wife. (T 77-78) HE was driving Dodge pickup which was found near1-75 inMarion County. (T 78) When found, thetruckhadno tag, no keys. and no personal belongings. It appeared to have been wiped down for fingerprints. (T 78-80) The seat was pulled forward. indicating someone shorterthanSpearshad been driving. The radiohadbeen removed from the dash. A condoms andaprophylacticpackagewere found in the truck, (T 79) Spears' body was identified from dental x-ray. Thompson learned that Spears had a habit of stopping for disabled motoristsj. (T 80) Thompson became involved in the investigation of similar homicides. Wuornos became one of the suspects. She used the names Lee, Cammie Greene, Lori Groddy, and Susan Blahovick. (T 80-81) In 1989, Wuornos had lived in the area where Spears' body was found. (T82) She had pawned tools similar to Spears ' missing tools at Bruce Young's Pawn Shopin Ormond Beach on June 19, 1990, using the name Camrnie Greene. (T 82-83) Thompson interviewed the owner ofa restaurant who said Wuornos had lived ina room behind the restaurant. She had seen Wuornos with the panther, tools, and other items. (T 83) After Wuornos was arrested. she confessed to the Spears homicide. (T 83-86) Marion County Sheriff's Investigator David Taylor testified that he investigated the homicide of Charles Humphries. The body was found in an undeveloped sub division in Marion County less than two miles from 1-75 on September 12, 1990. (T87) No identification was found on the body, which was lying ina fetal position on the ground near a drainage culvert. (T88) The Sumter County Sheriff's Office had issued a BOLVO for Humphries; he was a missing HERS worker traveling alone on 1-75. The body was identified by an HERS supervisor from Sumterville. Humphries was 56 years old. (T 88-90) The body was fully clothed and still wearing a wedding ring, watch. and glasses, with a pen and pencil in the shirt pocket. The left front pants pocket was turned inside out. Taylor did not find a wallet or any cash. Several - 2 2 shell casings were found at the scene. (T 90) The medical examiner found that Humphries had been shot seven times in the head, torso, and wrist;
multiplegunshotwounds were thecauseofdeath. Six -22 projectiles were recovered from the body. (T 91-92) The FDLE lab reportedthattheprojectiles were firedforma weapon witha six right-hand twist. (T 92-91) Several weeks later, Humphries ' car was found near1-10 in Live Oak. IT had beenwipedclean, bumperstickersandthetaghad been removed, andthekeysandpersonalbelongings were gone. (T 93-94) On October12, some of Hurnphries ' property was found inthe Green Swamp area of Lake County, including an empty ID case, a pipe, a tobacco pouch, and insurance cards. (T 94-95) The officers alsofoundbeer cans and a. 22shellcasing. (T 95-96) Humphries ' brief case was recoveredfromTyria Moore after Wuornos was arrested. Moore saidshereceiveditfromWuornos. (T 96-99) Moore and Wuornos gave directions for adive team torecovera weapon. (T 99-100) The FDLE lab reportedthatthisweaponfired the. 22shellrecoveredin Lake County. (T 100) Marion County Sheriff ' investigator John Tilleytestified thatheinvestigatedthehomicideofTroyBurse, age 5 0, inAugust, 1990. (T 101) The body was found on adirtroadina wooded area near US 19. (T 102-03) The body was lying face down, fully clothed, and partlyconcealedwith palm fronts. Burse‘s clapboard, receipt, and wallet were found, but no cash. (T 104) Burse was adeliverytruckdriver for asausagecompany. He was lastseenat the Seville grocery store. (T 105) He had $ 290incashinabank bag. (T 106) The medicalexaminerfoundoneentry wound inthe front of the body and one in the back. He recovered two.22 projectiles from the body, and determinedthatthefrontentry gunshot strucktheheart and caused death. (T 106-07) The FDLE labreportedthattheprojectiles were firedfroma - 22revolver with six groves and a right-hand twist. (T 107) Burse was identified by his wedding band and dentalcharts. (T 108) Burse's On cross-examination, Tilley said Wuornos accompanied him, other officers, anddefensecounsel on atriptoSouthCarolina to try to locate the body of a seventh victim after she was sentencedtodeathin Marion County. Shewas cooperative, butthe couldnotfindthe body. (T 110-11) On re - direct, Tilley said Wuornos confessedtokillingBurse. (T 111-12) Lynn McCutchen testified that he owned Paducah Shooter‘s Supply. a gun shop in Kentucky. Heidentified Statesexhibit9, afederalformusedtorecordthesaleofagun, and exhibit15, a receipt for the sale of a gun. (T 113-14) Defense counsel stipulated that the - 45automaticbelongedtoCarskaddonand was found in Wuornos'slocker. (T 114) Tyria Moore testifiedthatshemet Wuornos injure, 1986. (T 115) They were togetheruntilJune, 1990. (T 115-16) They were thenlivinginHolly Hill. Moore saw the car shown inexhibit5 parked outside their apartment. Wuornos hadthecarforoneday.
She didnotsay where she got it or what shedidwith it. (T 116- 17) Exhibit7 was aweaponWuornosbrought home onedaywithout explanation. Sheputitinastorageshed when Moore lefttogo up north. (T 117) Wuornos nevertoldheranythingaboutCharles Carskaddon's death. (T 118) On cross - examination. Mooretestifiedthat Wuornos told her about her childhood. (T 118) Wuornos was adoptedbyhergrandpar - ents. She became a prostitute in her early teens. She became pregnant, hidherpregnancyfromher family, andgaveherbabyup for adoption. (T 119) Hergrandfather drank wine almost daily.
Her grandmotherdiedofaliverdisease. She said she had sex with her brother Keith. (T120) Wuornoshadburnsonher forehead from afire she and her sister started. (T 121) She had been in a couple of reformatories and ran away. She didnotgetalongwith her grandfather. soshestayedawayfromthehouseas much asshe could. (T 120) Sheranawayfrom home inher early teens. (T Moore hadobservedthat Wuornos was easilyangeredoverlittle things, butwouldbehappy again ina couple of minutes. She displayedalack of judgment in becoming upset. (T122) Wuornos was dependent on alcohol. She easilydranka case ofbeerina day. (T 122) Shedrankheavilyanadailybasisand was drunk most of the time. (T 123) Regarding the carsandotherthingsshe brought home. she told Moore peoplegavethemtoherinsteadof Mooney. (T 123) DixieCountySheriff ' investigator Jimmy Pinnertestified thatheinvestigatedthe homicide of Walter Antonio, age 59. (T 125-26) Antonio ' sbodywasfound on November 1 9, 1990, anadirt road ina wooded areanearUS19abouteightmilesnorthof Cross City. (T 126) The body was clothed only in socks, laying on his left side ina curled position. (T 126-27) Part of a coin wrapped and a paper towel were found at the scene, but no clothes, cash. or wallet were found. The autopsy revealed four. 2 2 projectiles in the body, three in the back and one in the head. (T127) The FDLE lab reported that they were fired from a weapon witha six right twist. The body was identified from fingerprints. Antonio's ring and watch were missing. (T 128) Antonio's Pontiac was found ina deserted area of Brevard County near 1-95 on November 24. The identifying emblem, bumper sticker, and tag had been removed from the car. The tag was in the trunk. The ID plate behind the windshield was covered with paper. The car had been wiped to get;
rid of fingerprints. There were no keys. (T 129) Antonio was a security guard traveling alone from his home in Cocoa. (T 130) Pinner became involved with the task force investigation of similar homicides. (T 130-31) The homicide of Mr. Mallory occurred in Volusia County. The body was found in November, 1989, ina remote wooded area. It was partially covered and partially clothed. He was the victim of multiple gunshot wounds. No vehicle, personal belongings, or cash were found at the scene. (T 131-32) Wuornos confessed to the Antonio homicide after her arrest. The gun used in the homicide was recovered by a dive team following Wuornos's directions. Antonio's flash lights and handcuffs were recovered with the gun. (T 133-34) Antonio's shaver, wrench, cooper, lantern, and billy club were found in Wuornos's storage locker. (T 134) Antonio's ring was recovered from a pawn shop where Wuornos pawned it under the name Cammie Greene. (T 135) On cross-examination, Pinner said Antonio had handcuffs, a badge, a billy club, and a long black flash light. In her confession, Wuornos said she shot Antonio because he said he was a police officer, fla shed the badge, and wanted sex for free.
(T 135-36)
Lori Groddy testified that she is Wuornos's sister; they grew up together. (T 138) She is three years older than Wuornos. They have a brother named Keith. Wuornos made many attempts at running away. She got; into trouble and had to go to a juvenile home. (T 139) Wuornos became pregnant when she was 13 or 14. She attempted to hide the pregnancy because she did not know how their parents would react. (T 140) When their parents did find out, their mother was distraught, and their father was upset and sent Wuornos to an unwed mothers home. The child was put up for adoption. Wuornos came home, got in trouble again. and was sent to Adrian's School for Girls to straighten her out. (T 139, 141) When she came home again, she and Keith got into an argument with their father. He told them they could stay and live by his rules or run away again and not come back. They left. Wuornos was only On cross-examination, Groddy said she was 10 and Wuornos was about 7 when they found out. Wuornos was adopted. (T 141-42) Groddy'ssisterDiane was the biological mother of Keith and Wuornos. Diane was 16 or 17 when Wuornos was born. Diane left Keith and Wuornos witha cousin who called Groddy's parents and told them to come get the children. (T 147) As a child. Wuornos frequently argued with her friends and came home mad at them every day because they would not let her have her way. As she got older she became rebellious. She had a quick temper. (T 142) She got upset over little things. She was truant from school on numerous occasions and had problems with school.
Wuornos first ran away when she was about 12. (T 143) Wuornos had a bad attitude at home and would not follow their parents‘ rules.
She upset them by yelling at them, arguing with them. and running away so many times they couldn't take it anymore. (T 144) Wuornos's only contact with mental health professionals was witha psychiatrist at the Adrian School. (T 144) A neighbor boy got Wuornos started in prostitution when she was still quite young.
(T 144-45) Wuornos told their father she was raped when she got pregnant. (T 146-147) Wuornos began drinking beer in her mid teens. She also used marijuana, LSD. and owners. (T 145) After Wuornos left home, she travelled across the United States. She lived in Colorado, Michigan, and other places before settling in Florida. (T 146) Volusia County Sheriff‘s Detective Lawrence Horzepa testified that he investigated the Richard Mallory homicide. (T 149) Mallory's Cadillac was found on a fire trail in sand dunes near the beach. No car keys were found. (T 150) The officers found a half full bottle of vodka, tumblers. and a wallet containing Mallory‘s driver's license buried in the sand about 30 feet behind the car.
(T 150-51) Mallory was known tocarryabriefcasecontainingcash andothervaluables, butnobriefcase was foundatthescene. (T 151) Thewrongtag was onthecar. Mallory was 51or52and lived in Clearwater. HE came to Daytona alone. (T 152) Mallory ' body was foundonDecember13, 1989, ina wooded dump site just off US 1near1 - 9 5. The body was covered with debris, cardboard, and red carpet. It was lying face down. (T 153) The body was clothed. Both front pocketswereturnedinside out. The medicalexaminerrecoveredfour. 22projectilesfromthe body. (T 154) There were threeentrywoundsinthefrontandone on the side of the body. FDLE foundthattheprojectiles were six landed grove, right hand twist. Powder on thebulletholesinthe shirtindicatedthattheshots were fired at close range. (T 155) The bodywasidentified from fingerprints. (T 155-56) Horzepa joinedthetaskforceinvestigating similar homicides.
(T 156) Compositedrawingsoftwofemalesuspects were identified as Wuornos and Tyria Moore. (T 156-57) On December6, the officers learned that Wuornos pawned Mallory ' s camera and radar detector at theOK Pawn Shopunderthe name CammieGreene. (T 157) The thumbprintonthe pawn ticket matched Wuornos ' s. There was a 1986 warrant for Wuornos ' sarrestunderthe name Lori Groddyfor carryingaconcealed firearm. On December8, theofficerslocated Wuornos atthePortOrangePub. (T 158) She proceeded tothe Last Resort, whereshewasarrestedthefollowing day. (T 158-59) Horzepa interviewed Moore on January 15, 1991. She said Wuornos came home withaCadillacinDecember, 1989. (T 159-60) Her description of the car matched Mallory ‘ scar. They use ditto move toanotherapartment. Wuornos then told Moore shehadkilled a guy that day and covered the body witharedcarpet. Wuornos wantedto show heraphotoofthe man, but Moore refusedtolook.
(T 168) Moore saw some paperswiththe name Richard. (T 160-61) Wuornos tookthecartoasecludedareaandrodeherbicycle home.
(T 161)
Horzepa interviewed Wuornos atthe Volusia County Jail on January 16. (T 161) She identified photo of Mallory as one of her victims. Shesaidhe was aloneandpickedherupinthe Tampa area near1-4. She shot him intherightside, thenhecrawledout of the car and shut the door. Sheranaroundthecarandshot him three more times. (T 162) She covered the body withredcarpet.
(T 162-63) Shesearchedhis pants pocketsandtookeverythinghe had. Shethrewaway some itemsandkeptothers. She pawned the camera andradardetector. ShekeptaPolaroid camera, which was found laterinherrentedstoragebin. (T 163) She gave Mallory's shavertoa man who owned restaurant. (T 164) On cross - examination, Horzepa said Wuornos's tape recorded confession was 3 1 / 2hours long. She volunteeredtheinformation and refusedtheofficers ' adviceto see a lawyer. (T 164-65) She repeatedlysaidshecommittedthe crimes itself - defense. (T 165- 66, 168) She said she was drunk when thecrimeswerecommitted, the men attacked her, andshefeltshehadtokillthem. (T 166) On re - direct, Horzepa said Wuornos's claims of self-defense were contradicted by her other statements. (T 166) Regarding Mello ~ y, she also said she shot him because she was afraid of being ripped off and because he wouldn't take his clothes off. Horzepa felt that Mallory was no longer a threat to Wuornos after she shot him the first time, but she went around the car and shot him three more times. (T 167) Wuornos said she killed these people to avoid detection so she could continue her trade. (T 167-68) Defense counsel rested without calling any witnesses, stating, "I guess my hands are tied." (T 169) The prosecutor urged the court: to find three aggravating circumstances: prior convictions for capital or violent felonies, capital felony committed during commission of a robbery, and cold, calculated, and premeditated. (T 169-73) He waived pecuniary gain and witness elimination as aggravating factors. (T 170) Defense counsel suggested that the court review the doctors ' reports in the file. (T 174) He urged the court to consider the evidence of Wuornos's troubled childhood, having been abandoned by her mother and adopted by alcoholics. Wuornos displayed behavioral problems asa child consistent witha borderline or antisocial personality disorder for which she received no help. She was bad tempered. argumentative, angry, subject to extreme shifts in emotional behavior, and sexually promiscuous. (T 174-75) She ran away several times. She used drugs and alcohol. She became a prostitute at an early age. She was raped and had a baby at age 13 or 14. She felt she had to hide her pregnancy from her family. (T 175) She was sent away to Adrian School for Girls; when she returned home she was told to leave and never return. (T 176) Defense counsel asked the court to consider Moore's testimony that Wuornos is an alcoholic. Cops testified that she is out of control. Wuornos tried to help the police find Peter Sims' body.
She confessed to her crimes. (T176) She admitted her guilt and wanted to die assoon as possible. Wuornos had four other death sentences and would serve a minimum of 100 years in prison if each was commuted to life. (T 177) She suffered from mental handicaps and did not function normally, but nobody ever tried to help her.
(T179 - 8 0) Something happened with Richard Mallory which turned her into a "Munster." (T 180) Defense counsel argued that the robbery of Carskaddon was an after thought, they went out into the woods to have sex, so the felony murder aggravator was not proved beyond a reasonable doubt.
(T 177-78) The evidence did not establish that the murder of Carskaddon was cold, calculated, and premeditated. Wuornos did not stalk or lie in wait for victims. She felt threatened by Carskad - don. (T 178-79)
D. SENTENCING
The sentencing hearing was conducted by Judge Cobb on February 5, 1993. (R119) Wuornos was present, complaining vehementlyand profanely about physical and mental mistreatment and being deprived of her hair brush and watch. (R 120-22) The court threatened to gag and bind her unless she remained quiet, but permitted her to address the court. (R122) Wuornos denied that she was a serial killer and asserted that she acted in self-defense. (R 122-23) She complained about her cases being sensationalized. She accused the court of ordering her mistreatment ando f being "pissed-off" because she waived trial and deprived the court of " a lime light in a reelectional thing, and the rest of this county with political capitalization." She threatened to sue and to file a grievances in Tallahassee. (R 123) She complained about being compelled to wear over sized jail clothing. She accused the officers of threatening to shoot or electrocuted her. She complained of being deprived of "hygiene material. " (R 124) She concluded, You're the only county that treated me like shit, worse than a dog. And I'm going to let the whole public know about this. It's not--all the people don't dislike me. A lot of people are on my side. I got aloof people that believe it was self-defense. and that's just what it was.
And I'm letting the public know about-- around the whole world--you will--you want that fame, yeah, you want that lime light.
You're going to look like trash, because that'swhatyou are.
That's all I got to say. (R 125) The court found three aggravating circumstances:' prior convictions for five capital felonies and several violent felonies. 1 the murder was committed while engaged in the crime of robbery. 3 and cold, calculated, and premeditated.4 (R 102-03, 125- 26; A 3-4) The court found that none of the statutory mitigating circumstances exist. (R 105, 126; A 6) The court considered and The court's sentencing order is reproduced in full in the appendix. (A 1-7)
S. 921. 141 (5) (b), Fla. Stat. (1991).
S. 921.141(5)(d), Fla. Stat. (1991).
S. 921.141(5)(i), Fla. Stat. (1991).
rejected three non statutory mitigating circumstances. The court found that the evidence did not prove that Wuornos believed she was acting in self-defense nor that she demonstrated contrition by confessing and trying to assist the police in locating the body of the seventh victim. The court found that Wuornos's prior death sentences were not mitigating. Finally, the court found that if all three of these factors were considered to be mitigating circumstances, "they were pale in comparison to the aggravating circumstances found to exist." (R 104-05, 126 - 2 7; A 5-6) The court found that the appropriate sentence was death. and Wuornos responded, "Big deal. " (R 127) The court adjudicated Wuornos guilty of first-degree murder and sentenced her to death. (R 107-12, 127) The court asked Wuornos if she had any questions, and she answered that she was raped by Mallory, assaulted by the other men, and defended herself.
(R 127-28) She concluded:
You lied. you used conspiracy, you all used to frame--you framed me to the chair for your books and your movies. And you even framed me forG death sentences. So, you all can just reap off my blood. But that's, okay.
Because you see, I am--I'm going to heaven. I know where I'm going.
I'm deep into the Lord on death row. But you people are going to have to answer to God.
And right now, as far as I can see, you're all going to hell.
(R 128)
SUMMARY OF THE ARGUMENT
I. During the plea hearing, the penalty phase trial, and the sentencing hearing, Wuornos repeatedly asserted that she acted in self-defense and was intoxicated at the time of the offense. The prosecutors statement of the factual basis for the guilty plea did not refute those defenses. The court erred by accepting the plea without conducting a searching inquiry into the factual basis. The court also erred by failing to inquire into Wuornos's understanding of the constitutional rights she waived by entering the plea.
11. The court erred by accepting Wuornos's waiver of her rights to have a jury for the penalty phase trial, to be present during the trial, and to present mitigating evidence because the waiver were not truly voluntary and intelligent. Instead, Wuornos was motivated by her belief that she could not obtain a fair trial or a life sentence, so she preferred to be left alone. Because a jury recommendation, the defendant's presence, and the presentation of mitigating evidence are necessary fora reliable determination of the proper sentence ina capital case, such waiver should not be permitted. At the very least, special counsel should be appointed to present mitigating evidence.
111. Because Wuornos ‘ s conduct during the penalty phase trial and the sentencing hearing was irrational, the trial court committed reversible error by failing to order a re-evaluation of her competency.
IV. The State failed to prove beyond a reasonable doubt that the murder was cold, calculated, and premeditated and that robbery was the primary motivation for the crime. The court erred by finding these aggravating circumstances based upon legally insufficient circumstantial evidence and evidence of prior crimes.
The court also erred by considering five prior murder convictions in aggravation when the State proved only three and waived consideration of the Volusia County murder conviction.
V. The felony murder aggravating circumstance is unconstitutional because it does not significantly narrow the class of persons eligible for the death penalty.
VI. The court erred by failing to find and weigh several mitigating circumstances established by the evidence and not refused by the State: Wuornos's mental or emotional disorder, her history of alcohol and drug abuse, her impaired capacity, her cooperation with the police, her religious belief, and her prior sentences which would protect the public.
VII. Because there is only one valid aggravating circumstance, and there are several substantial mitigating circumstances.
the death sentence is disproportionate for this offense.
ARGUMENT
ISSUE I
BEE USE APPELLANT INS1 TED TH T SHE
WAS INTOXICATED AND ACTED IN SELF-
DEFENSE, THE TRIAL COURT ERRED BY
ACCEPTING HER GUILTY PLEA WITHOUT
CONDUCTING AN ADEQUATE INQUIRY TO
DETERMINE THE FACTUAL BASIS FOR HER
PLEA AND THE VOLUNTARY AND UNDER-
STANDING WAIVER OF HER CONSTITUTION-
AL RIGHTS.
Ina capital case, the defendant is entitled to appellate review of the validity of her guilty plea and the correctness of the court's action in accepting the plea. Trawick state. 473 So.
2d 1235, 1238 (Fla. 1985), cert. denied. 476 U. S. 1143, 106 S. Ct.
2254, 90 L. Ed. 2d 699 (1986). The defendant is entitled to raise a claim that the record fails to show that her guilty plea was intelligent and voluntary on direct appeal ina capital case, despite the absence of a motion to withdraw the plea in the trial court, because this Court is required by section 921.141(4), Florida Statutes (1991). to review the judgment of conviction, and this requires review of the propriety of the plea. Koenig v.
State, 597 So. 2d 256, 257 n. 2 (Fla. 1992).
In this case, Judge Tepper was initially reluctant to accept;
Wuornos's guilty plea because she insisted that she was intoxicated at the time of the offense and that she acted in self-defense. The court questioned both Wuornos and defense counsel to ascertain that Wuornos understood she was waiving her defenses by pleading guilty.
(R 198-203) However, when the prosecutor recited the facts which theState was preparedtoprovetoestablishthefactualbasis for the plea, hedidnotaddresstheissueof Wuornos‘s intoxication andstatedthat Wuornos admittedshootingCarskaddonandsixother peoplewhileclaimingthatall of the deaths were the result of self-defense. (R 205-07) The court allowed Wuornos to speak regarding the facts of the case, but did not make any further inquiry into the factstodetermine how the State wouldrefute Wuornos'sasserteddefenses. (R 207-09) AT the penalty phase trial conducted before Judge Cobb, Wuornos asserted that she should be acquitted because it was justifiablehomicide, and she was innocent, butshedidnotwanta trialbecausetheprosecutors would continuetolieabouther. Yet thecourt made noinquiryintothefactualbasisfortheplea. (T 22-25) Again at thesentencinghearing, Wuornos insistedthatshe had actedinself - defense, but Judge Cobb didnotinquireintothe factual basis for the plea. (R 122-23, 127-28) IN Brady v. UnitedStates, 397 U. S. 742, 90S. Ct;. 1463, 25L.
Ed. 2d 747 (1970), the Court held thataguilty plea entered to avoid a possible death sentence if convicted at trial was not involuntary. However, theCourt declared, “ Centraltotheplea and the foundation for entering judgment againstthedefendantisthe defendant's admission in open court that he committed the acts charged inthe indictment.” - Id., at748.
S. Ct. 2253, 49 L. Ed. 2d 108 (1976). the Court ruled that a negotiated plea of guiltyto second-degree murder by defendant charged with first-degree murder was involuntary because the defendant was never told that intent to kill was an element of second-degree murder. The court noted, A plea may be involuntary either because the accused does not understand the nature of the constitutional protection that he is waiving,..or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.
Id., at 645 n. 13. Moreover, ina concurring opinion joined by three other members of the Court, Justice White declared, "The problem in this case is that the defendant's guilt has been established neither by a finding of guilt after trial nor by the defendant's own admission that he is in fact guilty." Id., at 649.
The same can be said of Wuornos'scase. Her guilt has not been established by a finding of guilt after trial nor by her own admission that she is in fact guilty. Instead, she stated, "I ain't never going to get a fair trial. I'm pleading guilty in self-defense and I am not going to go through trial." (R 200) She further stated, "I'm pleading guilt--I'm guilty. I killed him.
But I'm saying self-defense right to my grave." (R 200) At the know I'm innocent. God knows I ' m innocent." (T22) And at the sentencing hearing she said, "It was in self-defense." (R 123) Finally, she said she "was raped by Richard Mallory and was assaulted by the other 6, and defended herself." (R 128) It is abundantly clear from the record that Wuornos entered her guilty plea not because she admitted her guilt, but because she was convinced she could not obtain a fair trial on her defense. Such a plea cannot stand as an intelligent admission of guilt and does not provide a reliable basis for imposing a judgment of guilt and sentence of death.
In North Carolina v. Alford, 400 U.S. 2 5, 91 S. Ct. 160, 27 L.
Ed. 2d 162 (1970). the Supreme Court addressed the problem of defendants like Wuornos who tender pleas of guilty while claiming to be innocent:
[Pleas coupled with claims of innocence should not be accepted unless there is a factual basis forth plea...
and until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence.
Similarly. this Court has ruled that when a defendant asserts a defense too charge to which he is pleading guilty, the trial court must; conduct a searching inquiry, not only to determine whether the defendant understands that the plea waives the defense, but also to determine the factual basis for the plea. State.
Kendrick, 336So. 2d 353, 355 (Fla. 1976); State. Lyles, 316 SO.
2d 277, 278-79 (Fla. 1975). Thus, in Davis v. State, 605 SA. 2d 936, 938 (Fla. 1st DCA 1992, the district court found reversible error because the defendant claimed, without contradiction by the State, that he was too into cated to know whether he had committed the first-degree murder and kidnapping to which he was pleading guilty, and the trial court; failed to inquire further to determine whether the defense existed and was being knowingly waived. Also, in Andrews v. State, 343 SO. 2 d 844, 846 (Fla. 1976). the district court found reversible error because the trial court failed to inquire more extensively into the factual basis fora guilty plea to aggravated assault when the defendant raised a possible claim of self-defense.
As in Davis and Andrews. the trial court in this case committed reversible error by accepting Wuornos's guilty plea without a searching inquiry into the factual basis to ascertain whether the State could refute Wuornos's claims that she was intoxicated and acted in self-defense. IT was not enough that there was general factual basis for the charge and that Wuornos understood that her plea waived her asserted defenses. Due process of law under the Fourteenth Amendment to the United States Constitution and Article I, section 9of the Florida Constitution required a reliable determination of Wuornos's guilt. Because her plea was accompanied by claims of legal defenses to the charge of first-degree murder, the court was required to ascertain whether there was any factual basis ta refute the defenses or to reject the plea and require Wuornos to stand trial on the merits of her claims.
The court's plea colloquy was also deficient because the court failed to expressly address Wuornos‘s waiver of her constitutional rights by pleading guilty. The entry of a guilty plea waives three important constitutional rights: the privilege against compulsory self-incrimination. trial by jury. and the right; to confront one's accusers. Godinez v. Moran, 509 U. S. -, 113 S. Ct.., 125 L. Ed.
2 d 321. 331 n. 7 (1993); Boykin v. Alabama. 395 U.S. 238, 243, 8 9
S. Ct. 1709, 23 L. Ed. 2d 274 (1969). A waiver of these rights cannot be presumed from a silent record. Id. The trial court is constitutionally required to discuss this waiver with the defendant before accepting her plea:
What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connoted and of its consequence.
Id., at 243-44. The failure to perform this task is reversible error. Id., at 244.
In this case, the trial court never expressly discussed the waiver of her rights with Wuornos. Instead, the court relied upon assurances by Wuornos and her counsel that she had read and understood a written plea form before she signed it. (R 203-04) The five page plea form did recite in one paragraph at the bottom of the first page that Wuornos understood the constitutional rights she would have if she chose to go to trial. (R 30-34) But this procedure did not satisfy the constitutional requirements of Boykin because the court failed to inquire into Wuornos's knowledge, understanding, and voluntary waiver of the specific constitutional rights waived by her plea. See Davis v. State, 468 SO. 2d 443 (Fla. 2 d DCA 1985) (written plea form was not sufficient, torefute claim that plea was not voluntary).
The trial court's failure to conduct a searching inquiry into the factual basis for the plea when Wuornos asserted legal defenses to the charge, coupled with the court's failure to inquire into Wuornos's knowledge, understanding, and waiver of her constitutional rights rendered Wuornos's guilty plea constitutionally invalid. This Court: must vacated the judgment and remand this case tothe trial court with directionstoallowhertheopportunity to withdraw her plea.
ISSUE I1
THE TRIAL COURT ERRED BY ACCEPTING
APPELLANT'S WAIVER OF HER RIGHTS TO
TRIALBY JURY. TO BE PRESENT, AND TO
PRESENT EVIDENCE OF MITIGATING CIR-
CUMSTANCES.
Generally. a competent defendant may waive her constitutional rights. provided that the waiver is voluntary, knowing, and intelligent. See Boykin v. Alabama, 395 U.S. 238. 242-44, 89 S.
Ct. 1709, 23 L. Ed. 2d 274 (1969). This Court has ruled that the defendant ina capital case may waive her right to trial by jury during the penalty phase. Hunt v. State, 613 So. 2d 893, 899 (Fla.
(1992). Yet this Court has also ruled that it was not error to refuse to accept a capital defendant's waiver of a penalty phase jury at resentencing when the prosecutor objected and the waiver was motivated by the defendant'sfear that the jury would be prejudiced by knowledge of his prior death sentence. Sireci v.
State, 587 So. 2d 450, 452 (Fla. 1991), cert. denied, - u. 5. -, This Court has also ruled that a capital defendant may knowingly and voluntarily waive the right to be present during trial. Peede v. State, 474 So. 2d 808, 812-14 (Fla. 1985). cert.
However, the Eleventh Circuit Court of Appeals has ruled that a capital defendant may never waive the right to be present at any critical stage of trial. Hall v. Wainwriqht. 733 F.2d 766, 775 (11th Cir. 1984, cert. denied, 471 U.S. 1107, 1111, 105S. Ct.
2344, 2346. 85L. Ed. 2d 858. 862 (1985). The United States Supreme Court has never resolved this conflict. The Court has left open the question of whether a capital defendant may waive the
right to be present at trial. Drope v. Missouri, 420 U. S. 162, This Court has repeatedly ruled that a competent defendant may waive the presentation of mitigating evidence in the penalty phase of a capital trial. Koo v. Duqqer, 619 So. 2d 246, 249 (Fla.
(1993); Hamblen v. State, 527 So. 2d 880, 804 (Fla. (1988). Yet a minority led by Chief Justice Barkett has persisted in disagreeing with this rule on the ground that the need for reliability and proportionality in capital sentencing mandates the appointment of special counsel to investigate and present evidence of mitigating circumstances. Koo, at 251 (Barkett, C.J., and Kogan, J., concurring); Hamblen, at 805-09 (Ehrlich, J., and Barkett, J., dissenting).
Wuornos waived her rights in this case because she did not want to be bothered by going through the process o a complete penalty phase trial witha jury:
All I want to do is waive off everything.
I have five death sentences. This one isn't going to change anything. I don‘t care. I just want to go back to death row and be left alone.
Wuornos was convinced that it was impossible for her to obtain a fair trial or a life sentence:
I wouldn't expect a life sentence far the dirt that went on. I'm accepting my death, and you will have to just face God forth dirt and conspiracy that you played in these cases and the total technicality and everything that went on with these cases.
It's too late to change the dirt and the conspiracy that the Court and the prosecutors and the cops played in my cases. It's too late to change anything.
(T 21-22)
Although she pled guilty to the murder charge, (R 196-211) Wuornos wanted to be acquitted or killed: "It's either acquittal, because it was justifiable homicide, or it's death in the chair.... I know I'm innocent. God knows I'm innocent." (T22) Wuornos knew about the mitigating evidence defense counsel could present. but shen o longer cared because "this case ain't going to change anything. Idon ' t give a shit, do you understand that? I don't care." (T22) When the court asked if Wuornos wanted defense counsel to present the mitigating evidence. she replied, "As far as I'm concerned, you can sentence me to death right now and send me back to death row. Because it doesn'tmatter to me." (T23) She added, "I will waive off an appeal to the chair. All I care about is going to God, because I know I'm innocent." (T 23) The court persisted in asking whether Wuornos wanted to present any mitigating evidence, and Wuornos continued saying she did not while reasserting her innocence and complaining about "the conspiracy and the dirt that went on in my cases " and prosecutors lying about her.
(T 23-25)
When the court asked whether Wuornos understood that she had the right to have a jury recommend a sentence of life or death, she answered, Yeah. okay. Asfar as I'm concerned, like I said. 1 wouldn't accept life. So death is the way it's going to be. I could care less what the jury is saying, because those people out there have been told so many lies.
(T25) Wuornos did not want a jury. Instead, she said, "I would be just as happy if you just said: Okay, death row. That's it."
(T 26) When asked again, she said, "NO. I do not. I would prefer for you to just sentence me and let this get out the window. I just want to be left alone." (T26) Finally, Wuornos made it clear that she did not want to be present during the proceedings.
(T27) The prosecutor provided written forms for the waiver. and Wuornos signed them. (R 92-92; T28) The court recommended that Wuornos should present mitigating evidence, allow a jury to make a recommendation, and be present. (T28) Wuornos persisted in waiving her rights, while complaining about being transported in and out, "lime lighting. political, ladder-climbing. promotions jazz and capital gainoffofbooks and movies and interviews," and that "you people" wanted to kill her and did not care about innocence.
(T29) When the court told her she could present evidence of her belief that she acted in self-defense, Wuornos said that it didn't matter because the public had been lied to and would not listen to anything she had to say. (T 29-30) Wuornos complained about another judge making a mockery of her prior trial, saying, "I was spit on, laughed at, mocked at and lied upon...I'll never get a fair trial." (T 31) She felt no one cared because of the number of homicides and because she was a prostitute, a female, and a hitchhiker. She said, "I'm sick of this shit." (T 31) When the court finally accepted her waiver, Wuornos said, "Let's just get the fucking thing over." (T 31-32) It is clear from this record that Wuornos knew what her rights were and that she was eager to waive them. It is not clear that she was competent to waive her rights, and the question of her competency will beaddressed in Issue 111, infra. Whether or not she was mentally competent, her waiver was neither intelligent nor constitutionally voluntary. Wuornos gained nothing from her waiver accept to avoid the stress of attending the penalty phase trial and fighting for her life. Because of her prior death sentences. she was convinced that this was a useless endeavor. She was also convinced that it was impossible for her to obtain a fair trial.
Although she believed that she was innocent, she volunteered for yet another death sentence because she felt justice was unobtainable, and she preferred to be left alone to face her execution and to make her peace with God. This Court should find that Wuornos's waiver of her rights to be present, to have a jury, and to present mitigating evidence were involuntary, reverse the death sentence, and remand fora new penalty phase trial.
In Koo v. Duqger, 619 SO. 2d at 250, this Court sought to alleviate the problem of determining what mitigating circumstances could have been established if the defendant had not waived their presentation by prospectively requiring defense counsel to "indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be." While the Koo rule does not apply to this case, defense counsel was aware of it and attempted to comply. (T 11, 16-19) Counsel also argued that the testimony of the States own witnesses established the existence of mitigating circumstances. (T 174-77) Notwithstanding counsel's commendable efforts, this case illustrates the futility of the Koo rule.
This Court; should compare the seven mitigating circumstances identified in Issue VI, infra, and their evidentiary support in this record with the evidence of mitigating circumstances developed on Wuornos's behalf in adversary proceedings in Wuornos v. State, Nos. 79.484 and 81,059.
This Court should also compare the result when special counsel was appointed to develop and present mitigating evidence in Klokoc
v. State. 589 So. 2d 219 (Fla. 1991) (death sentence vacated as disproportionate), with the results in cases where the defendant waived mitigation and special counsel was no appointed, such as Henry v. State. 613 So. 2d 429 (Fla. 1992) (death sentence affirmed); Clark. State, 613 So. 2 d 412 (Fla. 1992) (death sentence affirmed); Durocher v. State, 604 So. 2d 810 (Fla. 1992).
cert. denied. - U.S. -, 113 S. Ct. 1660, 123 L. Ed. 2d 279 (1993) (death sentence affirmed); Petitv. State. 591 So. 2 d 618 (Fla.), cert. denied, I U. S. -, 113 S. Ct. 110. 121 L. Ed. 2d 6 8 (1992 (death sentence affirmed); Anderson v. State, 574 So. 2d87 (Fla.)
cert. denied, - U. S. -, 112 S. Ct. 114, 116 L. Ed. 2d 83 (1991 (death sentence affirmed); Hamblen v. State, 527 So. 2d at 804 (death sentence affirmed).
In contrast to this Court's willingness to allow capital defendants to waive their rights in the trial courts, the Court has not allowed them to waive their appellate rights. In both Klokoc, at 221-22, and Petit, at 620 n.2, this Court rejected attempts by the defendants to waive their appeals. In Klokoc, this Court;
ordered appellate counsel to argue the appeal in an adversary manner. In Petit. this court rejected the defendant's request to waive counsel for appeal.
Given this history, it should be obvious by now Chat accepting a waiver of the right to present mitigating evidence, without appoint ing special counsel to develop and present mitigating evidence, virtually assures the imposition and affirmance of a death sentence. Notwithstanding this Court's insistence upon adversary appellate proceedings, appellate counsel is so handicapped by the absence of an adequate evidentiary record that he can do little to affect the result. In Hamblen, 527 SO. 2d at 802, appellate counsel conceded that cases in which the defendant would manipulate the system to commit suicide were rare. Unfortunately, he was mistaken; since Hamblen was decided such cases have been occurring with increasing frequency. This Court‘s continued refusal to recede from Hamblen has, in essence, created a right to State-assisted suicide by capital defendants like Wuornos. Surely, this result cannot be what this Court intended. nor should it be allowed to go on.
IT has long been recognized that death is different from other punishments both in its severity and in its unalterably finality.
Consequently. the Eighth and Fourteenth Amendments to the United States Constitution man date a greater degree of reliability in determining whether a death sentence should be imposed than in the imposition of other, lesser penal ties. Zant v. Stephens, 462 U. S.
proportionality review of every death sentence is required by the unusual punishment prohibit ion of Article I, section 17 of the Florida Constitution. Kramer v. State. 619 So. 2d 274, 277 (Fla.
(1993); Tillman v. State. 591 So. 2d 167, 169 (Fla. (1991).
These constitutional mandates cannot be satisfied when the courts allow capital defendants like Wuornos to volunteer for the death penalty and waive those procedural safeguards which have been erected to insure that capital punishment is reserved for "only the most aggravated and unmitigated" crimes. Xee State. Dixon. 283 So. 2d 1, 7 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S. Ct.
1950, 40 L. Ed. 2d 295 (1974). There is quite simply no reliable way to determine whether a particular murder is among the least mitigate cases when the defendant waives the right to present mitigating evidence. Having defense counsel recitefor the court a summary of the evidence he might have presented but for his clients waiver is not an effective and reliable substitute for the examination of witnesses, documents, and other evidence in an adversary proceeding.
Without presentation of mitigating evidence, we cannot be assured that the death penalty will not be imposed in an arbitrary and capricious manner, since the very facts necessary to that determination will be missing from the record.
Hamblen, 527 So. 2d at 808 (Barkett, J., dissenting).
The defendant's presence during an adversary penalty proceeding is necessary to enable the defendant to confront her accusers.
See Illinois v. Allen, 397 U. S. 337, 338, 90 S. Ct. 1057, 25L. Ed.
2d 353 (1970). Her presence is also necessary to assist counsel in making her defense, see Faretta v. California, 422U.S. 806, 816, 95 S. Ct. 2525, 45 L. Ed. 2 d 562 (1975), both in challenging the States evidence of aggravating circumstances, and in presenting the defense evidence of mitigating circumstances.
The impanelling of a jury to hear the evidence and make a sentencing recommendation to the court is necessary because the jury plays a vital role as co-sentencer in Florida capital cases.
See Espinosa v. Florida, 505 U. S. -, 112 S. Ct. 2926, 120 L. Ed.
2d 854, 859 (1992). This Court recently described the role of the jury in the penalty phase of a capital trial as "one of great impor tanc e " be cau se [Jlurkes are at the very core of our Anglo - American system of justice. which brings the citizens themselves into the decision-making process. We choose juries to serve as democratic representative of the community, expressing the community's will regarding the penalty to be imposed.
Stevens v. State, 613 So. 2d 402, 403 (Fla. 1992).
Thus, the presentation of mitigating evidence in an adversary proceeding, the presence of the defendant, and the participation of a jury in hearing the evidence and expressing the will of the community are all vital component of the capital sentencing process. Allowing the defendant to waive these procedural safeguards undermine the integrity of this process to such an extent that it becomes impossible to make a reliable determination of whether death is the appropriate and proportion ate sentence for the offense. This Court should recede from Hunt, Peede. Hamblen, and any other prior decision which allows the defendant to waive the rights to have a jury, to be present, and to present mitigating evidence in the penalty phaseof a capital trial. At the very least, this Court should require the appointment of special counsel to develop and present mitigating evidence. Nothing less will satisfy the constitutional requirements of reliability and proportionality in capital sentencing. This Court should reverse Wuornos's death sentence and remand fora new penalty phase trial.
ISSUE I11
THE TRIAL COURT ERRED BY FAILING TO
ORDER A RE-EVALUATION OF APPELLANT'S
COMPETENCY WHEN HER CONDUCT AT THE
PENALTY PHASE TRIAL AND SENTENCING
HEARING WAS SO IRRATIONAL IT RAISED
REASONABLE GROUNDS TO BELIEVE SHE
WAS NOT COMPETENT TO PROCEED.
Due process of law under the United States and Florida Constitutions prohibits the State from proceeding against a criminal defendant while she is mentally incompetent. Drope v.
(1975); Nowitzke v. State, 572 So. 2d 1346. 1349 (Fla. 1990); U.S.
Const. amend. XIV; Art;. I. s. 9, Fla. Const.; Fla. R. Crim. P.
3.210(a). The test for determining competency is whether the accused has sufficient present ability to consult with her lawyer witha reasonable degree of rational understanding and whether she has a rational as well asa factual understanding of the proceed - ings against her. Dusky v. United States, 362U. S. 402, 80 s. Ct.
788. 4 L. Ed. 2 d 824 (1960); Pridqenv. State, 531 So. 2d 951, 954 (Fla. 1988); Fla. R. Crim. P. 3.21l(a)(l). The same competency test applies when the accused chooses to plead guilty or waive a constitutional right. Godinez v. Moran, 509 U. S. -, 113 S. Ct.
While either defense counsel or the State may request a determination of the defendant's competency, Fla. R. Crim. P.
3.210(b), the court has the ultimate responsibility to insure that ' the defendant is competent to proceed. Whenever the court has reasonable ground to believe that the defendant may be incompetent, thecourt must suspend the proceedings, have thedefendant examined by mental health experts, and conduct a hearing to determine competency. Nowitzke, 572 SO. 2d at1349; Pridqen, 531 So. 2d at 954-55; Hill. State, 473 So. 2d 1253, 1257 (Fla. 1985); Fla. R.
Even when adefendantiscompetentatthe commencement ofhis trial, atrialcourtmust always be alerttocircumstancessuggestinga change that would rendertheaccusedunableto meet thestandardsofcompetencetostand trial.
The court'sduty toordera competency evaluation may be U.S. at180, the Supreme Court explained that evidence of defendant ' sirrationalbehavior.
misdemeanor at; trial. andanypriormedical opiniononcompetencetostand trial are all relevantindetermining whether furtherinqui - ry isrequired, butthatevenoneofthese factors standing alone may. in some circus - stances be sufficient.
IN Nowitzke. thedefendant was foundcompetentinahearing conducted three months before trial. On theFridaybeforetrial, herejectedapleaoffer for lifesentencesfortwomurdercharges, followedby 22 yearsforattemptedmurder. He tolddefensecounsel thathebelievedhe would bespirituallyreleased on July4because itwasIndependence Day andbecauseofthenumberoflettersinhis three names. He said heobtainedthisinformationfromajudgein his dreams and laughed at the possibility of a death sentence.
Defense counsel conveyed this information to the court and requestedacompetencyhearing, but thecourtdeniedthemotion.
This Court held that the court erred in failing to conduct a competency hearing, explaining, While refusing a plea offer in itself is not evidence of incompetency. here the reasons Nowitzke gave for refusing the offer indicate a lack of rational thought process such that it is doubtful whether Nowitzke had the present ability to assist his attorneys or understand the proceedings against him.
Id., In Pridsen, the defendant was found competent after pretrial psychiatric evaluations. At the beginning of the penalty phase trial, he waived the right to present mitigating evidence and demanded that the judge kill him. He then made a rambling statement to the jury asking for death while protecting his innocence. A psychiatrist re-examined Pridgen and told the court Pridgen was probably incompetent. but ha was not certain. The court completed the penalty phase trial and subsequently ordered a redetermination of competency. Pridgen was then found to be incompetent, and sentencing was delayed for treatment. This Court ruled that the trial court erred by not suspending the penalty phase trial to have Pridgen examined and to conduct a competency hearing. Id.,531 So. 2d at 954 - 5 5. Further, this Court found, "If Pridgen was incompetent during the penalty phase of the trial, the tactical decisions made by him to offer no defense to the States recommendation of death cannot stand." Id., at 955.
_I The Courtreversed Pridgen's death sentence and remanded fora hearing to determine his competency, to be followed by a new penalty phase trial witha new jury if he was competent. Id.
IN Agan v. Duqqer. 835 F.2d 1337 (11th Cir. 1987), cert.
thedefendant confessed to aprisonmurderbeforeagrandjuryand the sentencing judge. He told both that he was certain his confession would almost guarantee a life sentence, and that he intendedtofindandkillhisvictim ' partner when hereturnedto prison. On appeal from the denial of a federal habeas corpus petitionattackinghisdeath sentence, the Eleventh Circuit found that Agan's "bizarre and misguided" conduct "raises serious questions about Agan's reasoning ability. " - Id.. at 1339. The courtheldthatthisconduct, coupledwithanextensivehistory of mental problems. presented a sufficient issue regarding Agan's competency torequire an evidentiary hearing. Id. Concerning related claim of ineffective assistance of counsel. the court noted. "Agan's self-defeat ing behavior should also have alerted [ defense counsel ] tothepossibilitythat Agan was incompetent to enter his guilty plea." - Id., at 1340.
Similarly, Wuornos's irrational and self - defeat ing behavior when sheappearedatthepenaltyphasetrialtowaiveherrightsto a jury. to be present, and topresentmitigatingevidence (T 20-32) and when she appeared atthesentencinghearing (R120 - 2 5. 127-28) should have alerted both defense counsel and thecourt that her competency to proceed needed to be re-evaluate. Counsel had requestedanevaluationofWuornos ' scompetencyonJuly 14, 1992, because he had observed a "particularly bizarre" change in Wuornos ' behavior and becauseDr. Kropexaminedher on July 13.
1992, and found that "she is exhibiting a fixed delusional system which suggests that; she perceives her former attorneys as well as her present lawyer as part of a conspiracy," and that "her ability to rationally participate in plea bargaining is significantly impaired." (R 176, 241-43) In August, 1992, both Dr. Epstein and Dr. DelBeato examined Wuornos and found her competent. (R177 - 7 8) And on September 17, 1992, defense counsel stipulated that the court could find Wuornos competent based on the doctors' reports.
(R 282, 285 - 8 6) But the court's pretrial competency determination was no longer controlling when Wuornos exhibited bizarre and irrational conduct at the penalty phase trial on January 2 5, 1993, (T 1) and at the sentencing hearing on February 5, 1993. (R 119) Wuornos's statements at the penalty phase trial demonstrated that she was not thinking rationally, that she believed herself to bethe victim of a conspiracy, and that she was not acting in her own best interest. She began by saying she did not want to be present because she already had five death sentences and felt this proceeding was unnecessary. She complained that male serial killers only receive two death sentences. She believed she was being treated differently ' " for nothing but political lime lighting and for any kind of ladder-climbing and promotional gain or capital gain you can receive off of these." (T20) She wanted to waive everything because, "I just want to go back to death row and be left alone." (T20) Wuornos said she understood "exactly what's going on, and I understand, too, the conspiracy of trying to find any kind of raking-in, some kind of reapingoff of these cases, off of my blood, before go tothe chair. " (T 21) She repeatedthatthis proceedingwasunnecessaryandasked, "How many times do you people wanttokill me? You canonlykillmeonce. " (T 21) When the court explained herappellaterights, she responded:
I wouldn'texpectalife sentence forth dirt that went on. I ' accepting my death, andyouallwillhavetojustface God for the dirt and theconspiracythat you playedin these cases and thetotaltechnicality and everything that went on with these cases.
IT ' stoolatetochangethe dirt and the conspiracy thatthe Court and the prosecutors andthecopsplayedin my cases. It'stoo lateto change anything. And Iwouldnever expect a life sentence.
Iftheyoverturnittolife, I would tell them1'11 killagainthen. Because I ' not goingtoexpectalifesentence from anybody, thedirtthattheyput on me and say: Oh, we're sorry. We made mistake, sowe ' ll overturnitto life.
No. IT ' seitheracquittal, because it wasjustifiable homicide, orit ' s death inthe chair. And youallwilljusthaveto face God andyour own dirtwiththe Lord. I know I ' m innocent. God knows I ' innocent. But you people are not innocent in what you ' re doing tome through these cases. I have been lied about--
(T 21-22)
Wuornos said she knew about defense counsel's mitigating evidence, but, "Idon ' tgivea shit, do youunderstandthat? I don ' t care." (T 22) When thecourt asked ifshewantedcounselto present the evidence, sherepliedthatthecourt could sentence her todeathright now and she would waive an appeal. (T 22) She continuedsayingthatshe was innocent, God was onherside, she was not afraid to die, andshewould write abooktoexposethe conspiracy and dirt in her cases. (T 23-24) She would not go through trial and have prosecutors continue to lie about her, "to blacked my character and get bias and prejudism to the public out there so they can get an easier conviction." She felt, "I have been lied about so bad, it'sasvast as the universe up there. " (T 24) She repeatedly complained about lies, did not want a jury, would not accept life, and invited the court to sentence her to death. (T25 - 2 6) She wanted to waive her presence. (T27) When the court asked if Wuornos had any questions about her waiver, she complained about being transported in and out and court personnel trying to kill her, engaging in "time lighting, political, ladder-climbing. promotions jazz and capital gain," and not caring about innocence. (T29) She felt that it did not matter whether she had evidence of her innocence, the public would not listen because of lies and her other death sentences. (T 30) She complained that another judge made a mockery of her prior trial and said, "I saw trash on my cases.... I was spit on, laughed at, mocked at and lied upon.... " (T 31) She thought she could not get a fair trial; no one cared because of "the number," and because she was a prostitute. a female, and a hitchhiker. (T 31) When the court accepted her waiver, she remarked, "I'm sick of this shit," and, "Let's just get the fucking thing over." (T 31-32) Wuornos's irrational behavior continued at the sentencing hearing. She began by complaining of physical and mental mistreatment, being deprived of her watch and hair brush, being laughed at and "tantalized," and that her hands had been cut from falling in the van. (R 120-21) She wanted tofileagrievance and alawsuit.
She accused thecourtoforderinghermistreatmentandsaid, "This shit better stop." (R 121) Thecourttoldhertobequiet or he would have her gagged and bound toherchair, thenallowedherto speak about the sentence. (R 122) Wuornos made lengthy, ramblingstatementcomplainingabout being the only female with sixdeathsentencesalthough it was self-defense, being treated more harshlythan Ted Bundy, being mistreated because she waived trial and thecourt was "pissed-of f, " being deprived of her jewelry and hair brush, being threatened by officers who wantedtoshootorelectrocuteherinhercell, being deprived of "hygiene material, " and being treated " likeshit, worse than a dog." Shesaidshewouldfileagrievanceanda law suit and inform the public in books and interviews. She felt a lot of people were onherside and believed she acted in self-defense.
Sheconcludedthatthecourt was " goingto look like trash, because that ' s what you are. " (R 122-25) When thecourtimposedthedeathsentence, Wuornos responded, "Big deal. " (R 127) She then complained aboutcourtpersonnel framing her for booksandmoviesalthoughshehadbeenrapedand assaulted. (R 127-28) She concluded, So, youallcanjustreapoff my blood. But that ' s, okay. Becauseyousee, I am--I'm going to heaven. I know whereI'mgoing.
I ' mdeepintotheLordondeath row. But youpeoplearegoingtohavetoanswerto God.
And right now, asfarasIcansee, you ' reall going tohell.
(R 128) This record shows that Wuornos's conduct before the court during both the penalty phase trial and the sentencing hearing was completely bizarre and irrational. She acted against; her own self interest not only by waiving her rights and requesting a death sentence, but also by threatening to kill again and by insulting and threatening the sentencing judge. Her conduct alone gave the court reasonable grounds to believe that she did not have a rational understanding of the proceedings nor the ability to rationally consult with counsel. Moreover, her conduct was consistent with Dr. Krop ' s earlier evaluation finding her to be delusional and incompetent, and it was inconsistent with the other doctors' reports finding her competent.
Under these circumstances, the court had the duty to suspend the proceedings and order a re-evaluation of Wuornos‘s competency.
The court's failure to do so violated Wuornos'sright to due process and invalidated the death sentence. Competency cannot be retroactively determined, so the death sentence must be vacated, and the case must be remanded fora determination of Wuornos's present competency before conducting a new penalty phase trial and sentencing hearing. See Drope, 420 U. S. at 183; Pridgen, 531 SO.
2d at 955.
ISSUE IV
THETRIALCOURTERRED BY FINDING
AGGRAVATING CIRCUMSTANCES WHICH
WERENOT PROVEN BEYONDAREASONABLE
DOUBT.
The existence of aggravating circumstances must be proven by the State beyond a reasonable doubt. Robertson v. State, 611 So.
2d 1228, 1232 (Fla. 1993). "Moreover, even the trial court may not draw ' logical inferences' to support a finding of a particular aggravating circumstance when the State has not met its burden."
Id.
The court found three aggravating circumstances: (1) prior convictions forgive capital felonies and several violent felonies;
(2) the murder was committed while Wuornos was engaged in robbery; and (3) the murder was committed ina cold, calculated, and premeditated manner without any pretense of moral or legal
A. Cold. Calculated. and Premeditated TO establish the heightened premeditation necessary to support a finding of the cold, calculated, and premeditated aggravating factor provided by section 921.141(5)(i). Florida Statutes (1991).
the State is required to prove that the defendant had careful plan or pre arranged design to kill. Clark. State, 609 So. 2d 513, 515 (Fla. 1992); Roqers v. State, 511 So. 2d 526, 533 (Fla.
1987), cert. denied, 484 U. S. 1020, 108 S. Ct. 733, 98 L. Ed. 2d In this case, the trial court concluded, "Miss Wuornos carefully and calculatingly selected this victim, stalked him and lured him to a secluded area with the intent of killing and robbing him." (R 104; A 5) However, the States evidence did not support this conclusion. There were no eyewitnesses to the crime, and the State presented no evidence of how or where Charles Carskaddon met Wuornos, nor of the events which transpired between them before Carskaddon was shot. (T 33-169) Detective Muck testified that Wuornos admitted shooting and killing Carskaddon in her videotaped confession, but he did not say that she admitted planning to rob and kill Carskaddon. (T 44) Wuornos's roommate, Tyria Moore testified that Wuornos came home with Carskaddon's Cadillac and firearm. but Wuornos never told her anything about his death. (T The court based its conclusion upon its evaluation of the States evidence of other crimes:
Charles Carskaddon was not the first of Miss Wuornos' murder victims. The evidence indicates that by the time Miss Wuornos killed Mr.
Carskaddon she had a well established pattern of selecting white, middle-aged male victims, luring them to a secluded area with promises of sex, shooting them multiple times in the torso, and stealing their Mooney, car and all other valuable personality in their possession.
(R 103-04; A 4-5) But this Court has ruled that a finding f old, calculated, and premeditated cannot be based solely on evidence of other crimes:
Furthermore, even if it were permissible fora judge to rely on the circumstances of previous crimes to support the finding of an aggravating factor, such evidence, standing alone, can never establish, beyond a reasonable doubt, that the murder at issue was so aggravated.
Power v. State, 605 SO. 2d 856, 864 (Fla. 1992). This Court also rejected a finding of cold, calculated, and premeditated based upon evidence of other crimes in Crump v. State, 622 SO. 2d 963, 972 (Fla. 1993).
Moreover, the States evidence of the prior homicides committed by Wuornos was equally deficient to show that she had a careful plan or pre arranged design to kill. As in the present case, there were no eyewitnesses, no evidence of how Wuornos met the victims, no evidence of what happened before the shootings, and no admissions by Wuornos that she planned the killings in advance.
(T 71-112, 125-36, 149-69)
This case is factually similar to Gore. State, 599 SO. 2d 978 (Fla.), cert. denied, - U. S. -s _I s. Ct. -, 121 L. Ed. 2d 545 (1992). Gore met his female victim in Tennessee. They left a party in her cars o she could drive him home, but she never returned. Gore arrived in Tampa driving the victim's car and pawned her jewelry. The victim's nude body was discovered ina wooded dumping area of Columbia County. The medical examiner concluded she had suffered a fatal neck injury. The State presented evidence of another incident in which Gore obtained a ride from a girl, then after riding for several hours, he displayed a knife and gained control of her car. Gore drove to a wooded dumping area, forced her to undress, raped her, drug her from the car, hit her head against a rock, strangled her, stabbed her in the neck, arms, legs, and buttocks, then left her. Gore pawned her jewelry and drove to Kentucky in her car. This Court ruled that the trial court erred by finding the murder cold, calculated, and premeditated because there was no evidence of a calculated plan to kill the murder victim; it was possible that the murder was the result of a robbery that got out of hand, or that Gore spontaneously killed her during an escape attempt or sexual assault. =., at
987. Similarly, Wuornos may have shot Carskaddon during an act of prostitution that got out of hand.
Even if the State had proven the existence of a pre arranged design to kill, the State was also required to prove that Wuornos formed this plan through a process of calm and cool reflection.
Cannady v. State, 620 SO. 2d 165, 170 (Fla. 1993). Evidence of the defendant's mental or emotional disturbance or alcoholism may negate a finding of cold deliberation. Id. Tyria Moore testified that Wuornos was easily angered over little things, sometimes for no reason, was depend ant on alcohol, drank heavily on a daily basis, and was almost always high on alcohol. (T 122-23) Bobby Cops testified that when he gave Wuornos a ride, Wuornos was "a real nice person... a sweetheart" at first, so he was shocked when she propositioned him. (T65 - 6 6) When he rejected her offer, she became more graphic and aggravated. (T 66-67) Her personality changed. She became very mean, very aggressive, and very derogatory. (T 67) Dr. Krop diagnosed Wuornos in January, 1992, as suffering from borderline personality disorder with paranoid features. In July, 1992, he found that she was suffering from delusional disorder, persecutory type. (R 176) Dr. Epstein found that she suffered from a personality disorder. (R 178, p. 5) Dr.
DelBeato diagnosed Wuornos as suffering from an antisocial or borderline personality disorder. (R 177, p. 3, 5) This evidence of Wuornos's alcoholism and mental or emotional disorder tended to show that "[there was no deliberate plan formed through calm and cool reflection, only mad acts prompted by wild emotion." - Id.
The State was also required to prove beyond a reasonable doubt that Wuornos committed the murder "without any pretense of moral or legal justification." Band v. State, 536 SO. 2d 221, 224 (Fla.
(1988), cert. denied, 489 U. S. 1087, 109 S. Ct. 1548, 103 L. Ed. 2d 852 (1989). "[A] 'pretense of justification' is any claim of justification or excuse that, though insufficient to reduce the degree of homicide, nevertheless rebut the otherwise cold and calculating nature of the homicide." - State, 427 So. 2 d 723, 730 (Fla. (1983). this Court held that the trial court erred by finding the murder cold, calculated, and premeditated because the only direct evidence of how the murder occurred consisted of the defendant's statements, and thedefendant repeatedly said he did not mean to kill the victim, he shot him because the victim jumped at him.
Similarly, the only direct evidence of how the shooting of Carskaddon occurred consisted of Wuornos's confession (T 44), and Wuornos repeatedly said she acted in self-defense, the men she shot attacked or assaulted her, and she felt she had to kill them. (T 166) While Det. Horzepa testified that Wuornos gave inconsistent version of her reasons for shooting Mallory, the State did not present inconsistent motives for the shooting of Carskaddon. (T 167) Horzepa also testified that Wuornos said she "killed these people basically for witness elimination because if it was found out who had done this, that she wouldn't be able to continue her trade." (T 167-68) However. the State expressly waived consideration of witness elimination as an aggravating factor because "I don't believe that witness elimination was, at the time of the commission of the offense, the main reason these offenses occurred." (T 170) Procedural default rules apply to the State as well as defendants, Cannady, 620 SO. 2d at 170, so the witness elimination testimony cannot be used to defeat Wuornos's claim of a pretense of self-defense.
The trial court rejected Wuornos's claim of self-defense on other grounds:
Although in her 3 1/2 hour confession it appears that Miss Wuornos mentioned self-defense several times, the totality of the evidence presented to the court convinces the court beyond any reasonable doubt that this murder was committed without any pretense of moral or legal.justification; it was committed to facilitated robbery.
(R 103; A 4) AS argued above, the States evidence was legally insufficient to establish that Wuornos planned to rob and kill Carskaddon. so the court's reason for rejecting Wuornos's pretense of self-defense is wrong. As in Cannady, 427 So. 2d at 730, Wuornos's repeated statements that she acted in self-defense because the men she shot attacked or assaulted her were sufficient evidence of a pretense of justification.
The trial court erred by finding the cold. calculated. and premeditated aggravating circumstance. The State failed to prove beyond a reasonable doubt that Wuornos had a careful plan or pre arranged design to kill, engaged in cool and calm reflection.
and acted without any pretense of justification.
B. Committed During the Commission of a Robbery To establish the felony murder aggravating factor provided by section 921.141(5)(d), Florida Statutes (1991). on the basis of a robbery, the State must prove beyond a reasonable doubt that the robbery motivated the murder and was more than an after thought.
Parker v. State, 458 SO. 2d 750, 754 (Fla. 1984), cert. denied, 470 In this case, the trial court found:
This murder was committed while Miss Wuornos was engaged in the crime of Robbery. Mr.
Carskaddon's body was found ina secluded, rural area. The body was nude and hidden under a green electric blanket which was covered with grass and other vegetation.
There was no identification on or near the body. Mr. Carskaddon had been shot 8 times.
His car was stolen and a pistol identified as belonging tom. Carskaddon had been pawned by the defendant in Daytona Beach. Those facts, together with the pattern established by Miss Wuornos in other murders, convinces this court beyond any reasonable doubt that Miss Wuornos killed Mr. Carskaddon while the defendant was engaged in robbing him.
(R 102-03; A 3-4) The trial court; relied upon the States circumstantial evidence to establish this aggravating factor because there was no direct evidence that Wuornos planned to rob and kill Carskaddon.
But circumstantial evidence must be inconsistent with any reasonable hypothesis of innocence to establish an aggravating factor.
Geralds v. State, 601 SO. 2d 1157, 1163 (Fla. 1992). Here, there is a reasonable hypothesis that Wuornos planned nothing more than an act of prostitution with Carskaddon, then something happened which triggered the shooting, and Wuornos took Carskaddon's belongings to help conceal her crime and drove his car to get away from the remote location to which they had gone to have sex. This hypothesis is supported by Wuornos's statements to Det. Horzepa that the men she shot attacked her, and she felt she had to shoot them. (T 166) Neither logical inferences nor evidence of other crimes can be relied upon to supply deficiencies in the States proof of an aggravating factor. Robertson, 611 SO. 2d at 1232; Power, 605 SO.
2d at 864. Since the States circumstantial evidence was legally insufficient to establish that robbery was the primary motive for the shooting, and there was no direct evidence that Wuornos planned to rob and kill Carskaddon, the court erred by finding the felony murder aggravating factor in this case. See Clark, 609 So. 2d at 515 (no evidence that taking of shooting victim‘s Mooney and boots was anything but an after thought to the killing); Jones. State, 580 SO. 2d 143, 146 (Fla. 1991) (taking officer's firearm was only incidental to the killing, not the reason for it).
C. Prior Capital Felony Convictions AT the penalty phase trial the State presented documentary evidence of Wuornos's prior convictions for three capital felonies and four robberies consisting of certified copies of judgments and sentences for robbery in Volusia County--exhibit 1, first - degree murder and robbery in Marion County - - exhibit 2. another firstdegreemurderandarmed robbery in Mar ion County - - exhibit 3, and first - degree murder and armed robberyinCitrusCounty - - exhibit 4.
(T 33-34)
The prosecutortoldthecourtthat Det. Pinnerwouldbring certified copies of Wuornos's judgment and sentence for first degree murder in Dixie County. Defense counsel offered to stipulated tothat conviction if the record was established. (T 34) The prosecutoralsotoldthecourttherewasanotherjudgmentand sentence for first - degree murder from Volusia County, buthewas not entering it into evidence and did not want the court to consider it. (T 34) When Det. Pinnertestified, nomention was made oftheDixie County judgment and sentence. (T 125-36) Atthe conclusion of the penalty phase trial, defensecounseltoldthecourtthatWuornos ' s DixieCountysentencinghearing was scheduled for February4. (T 181) The sentencinghearinginthiscasewasconductedonFebruary 5, 1993. (R 119) The State presented no evidenceatthathearing.
(R 120-29)
Section 921.141(5)(b), FloridaStatutes (1991). provide san aggravatingcircumstanceforprior convictions for capital felonies and feloniesinvolvingthe use orthreat of violence. IN applying this factor tothiscase, thetrialcourtfound:
Miss Wuornos was previouslyconvictedoffive capital felonies andseveralotherfelonies involvingtheuse or threat of violencetoa person. Thetestimonyanddocumentary evidence establishes beyond any doubt that Miss Wuornos has been previously convicted of five first degree murders and several counts of robbery.
(R 102; A 3) The trial court erred by finding and considering five prior convictions for first - degree murder. The State expressly waived consideration of the Volusia County murder conviction. (T 34) Procedural default rules apply to the Stateas well as to defendants. Cannady, 620 SO. 2 d at 170. IT is improper to consider an aggravating factor when the State did not seek application of the factor in the trial court. u. Thus, it was improper for the court to include the Volusia County murder conviction in its finding of this aggravating circumstance.
It was also improper for the court to include the Dixie County first-degree murder conviction in its findings. Defense counsel offered to stipulated to this conviction if the record was established, (T 34) but it does not appear that the State ever established the record of the judgment and sentence in court. The State could not rely upon defense counsel's conditional offer to stipulated because the condition was never satisfied. The State has the burden of proving the existence of aggravating circumstances beyond a reasonable doubt. Robertson, 611 So. 2 d at 1232. The State failed to satisfy its burden of proof regarding the Dixie County murder conviction, so the court erred by considering it.
Elledse v. State, 613 So. 2d 434, 436 (Fla. 1993).
Under these circumstances, it was proper for the court to consider only three prior murder convictions instead of five.
Since it is obviously worse to kill five people than three, the court's improper consideration of the Volusia and Dixie County murder convictions must have affected the weight given to this aggravating circumstance by the trial court.
Additionally, all of the prior convictions considered by the court except exhibit 1, the Volusia County robbery judgment and sentence entered on April 29, 1982, are presently subject to appellate review in this Court. See Wuornos v. State, Nos. 79,484, 81,059, and 81.498. If all or any of those convictions are reversed, the Eighth Amendment will require reconsideration of Wuornos's death sentence in this case. Johnson v. Mississippi, 486 amend. VIII.
The trial court's errors in finding and considering aggravating Circumstances which were not proven beyond a reasonable doubt require this Court to reweigh the aggravating and mitigating circumstances or to conduct a harmless error analysis. Parker v.
(1991).
The errors in this case cannot be found harmless beyond a reasonable doubt. Two of the trial court's aggravating circumstances must be stricken because they were not proven--cold.
calculated, and premeditated, and committed during the commission of a robbery. The only remaining aggravating circumstance--prior convictions for capital and violent felonies--was partially invalidated by the court's consideration of five prior first-degree murder convictions when the State proved only three and expressly waived consideration of the Volusia County first-degree murder.
Although the trial court found no mitigating circumstances (R 104-05; A 5-6). appellant will show in Issue VI, infra, that the evidence established several mitigating circumstances, including mental or emotional disturbance, troubled childhood, history of drug and alcohol abuse, impaired capacity, cooperation with police, religious belief, and protection of society by Wuornos's prior sentences, and the trial court committed reversible error in rejecting them. This combination oferrors. the improper consideration of unproven aggravating factors coupled with the improper rejection of mitigating factors. requires reversal and remand for resentencing. Campbell v. State, 571 So. 2d 415, 418-20 (Fla.
(1990). See also Robertson, 611 So. 2d at 1234 (consideration of unproven aggravating factors required reweighing of aggravating and mitigating circumstances by trial court).
ISSUE V
THE FELONY MURDER AGGRAVATINGCIR -
CUMSTANCES IS UNCONSTITUTIONALLY
OVERBROAD BECAUSE IT FAILS TO NARROW
THE CLASS OF PERSONS ELIGIBLE FOR
THE DEATH PENALTY.
The trial court found as an aggravating circumstance in support of the death sentence that the murder was committed while Wuornos was engaged in the commission of the crime of robbery. (R 102; A 3) Section 921.241(5)(d). Florida Statutes (1991). provides the following aggravating circumstance:
The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of. or an attempt to commit, or flight after committing or attempting to commit any robbery, sexual battery, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or dis charging of a destructive device or bomb.
Defense counsel made no objection to the constitutionality of this statutory aggravating circumstance. (T 174-80) However, no objection is required to preserve the question of the facial validity of a statute, including an assertion that the statue is inform because of overbreadth; the issue can be raised for the first time on appeal. Trushin v. State, 425 So. 2d 1126. 1129 (Fla. 1982).
The felony murder aggravating circumstance is racially overbroad because it duplicates elements of first-degree murders defined by section 782.04(1)(a), Florida Statutes (1991). This statute provides twelve ways to commit first-degree murder-- premeditated murder and eleven varieties of felony murder. The felony murder aggravating circumstance covers the seven most common forms of felony murder, omitting only escape. drug trafficking, aggravated child abuse. and distribution of cocaine or opium.
Escape has its own separate aggravating circumstance provided by section 921.141(5)(e), Florida Statutes (1991). There is a separate death penalty statute for drug trafficking murders, section 921.142, Florida Statutes (1991). Most: aggravated child abuse murders would likely quality for the heinous, atrocious, or cruel aggravator provided by section 921.141(5)(h), Florida Statutes (1991). Thus. virtually all felony murders in Florida are aggravated and quality for the death penalty. Furthermore, the felony murder aggravating circumstance applies to many premeditated murders, as found by the trial court in Wuornos's case.
Aggravating circumstances which apply to nearly all first degree murder cases violate the Eighth and Fourteenth Amendments to the United States Constitution. "[Alan aggravating circumstance must genuinely narrow the class ofpersons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant. Stephens, 462 U.S, 862. 877, 103 S. Ct. 2733. 77
L. Ed. 2d 235 (1982). "When the purpose of a statutory aggravating circumstance is to enable the sentencer to distinguish those who deserve capital punishment from those who do not, the Circumstance must provide a principled basis far doing so." Arave v. Breech, In Lowenfield v. Phelps. 484 U.S. 231, 108 S. Ct. 546, 98 L.
Ed. 2d 568 (1988). the Supreme Court upheld Louisiana's felony murder aggravating circumstance. But the Court did so only because Louisiana does not rely upon aggravating circumstances to narrow the class of defendants eligible for the death penalty. The Court found that Louisiana's capital sentencing scheme satisfies the Eighth Amendment narrow ing requirement by defining first-degree murder much more narrowly than mast other states.
The courts of at least three states which rely upon aggravating circumstances to narrow the class of death eligible defendants have ruled that their states' felony murder aggravating circumstances are unconstitutional. State v. Middlebrooks, 840 S.W.2d 317, 341-46 (Ten. 1992), cert. granted. - U.S. -. - s. Ct. -, 123 L. Ed. 2d 466 (1993); Enqberq v. Meyer, 820 P.2d 70 (Wyo.
(1991); State. Cherry, 257 S.E.2d 551 (N. C. (1979). The United States Supreme Court should resolve this issue when it decides Middlebrooks. Meanwhile. the constitutionality of Florida's felony murder aggravating circumstance has been challenged in at least two other capital appeals pending in this Court, Taylor v. State, No.
80,121, and Thompson v. State. No. 81,039.
Because the felony murder aggravating circumstance provided by section 921.141(5)(d), Florida Statutes (1991), fails to sufficiently narrow the class of persons eligible for the death penalty, it fails to provide a principled basis for distinguishing those who deserve capital punishment from those who do not. Therefore, the felony murder aggravator violates the Eighth and Fourteenth Amendments. Because the statute is racially overbroad, the trial court committed fundamental error in applying it to Wuornos's case as a basis for imposing the death penalty. Since the court also erred by failing to find several mitigating circumstances shown by the evidence, as argued in Issue VI, infra, the error in finding and weighing an invalid aggravating factor was not harmless and requires reversal and remand for resentencing. Campbell v. State,
ISSUE VI
THE TRIAL COURT VIOLATED THE EIGHTH
AND FOURTEENTH AMENDMENTS BY FAILING
TO FIND AND WEIGH SEVERAL MITIGATING
CIRCUMSTANCESSHOWN BY THE EVIDENCE.
The Eighth and Fourteenth Amendments prohibit the State from precluding the sentencer ina capital case from considering any relevant mitigating factor, and they prohibit the sentencer from refusing to consider, asa matter of law, any relevant mitigating evidence. Eddinqs v, Oklahoma, 455 U.S. 104. 113-14, 102 U, S. 869, 71 L. Ed. 2d 1 (1982); U. S. Const. amend. VIII and XIV. The sentencer must be allowed to consider and give effect to mitigating evidence relevant to the defendant's background and character precisely because the punishment should be directly related to the personal culpability of the defendant. Penry v. Lynauqh, 492 U.S.
Moreover, the Eighth and Fourteenth Amendments require that capital punishment be imposed fairly, and with reasonable consistency, or not at all. Eddinqs, 455 U.S. at 114. To insure fairness and consistency, this Court must conduct a meaningful independent review of the defendant's record and cannot ignore evidence of mitigating circumstances. Parker v. Dugqer, 498 U. S.
To insure the proper consideration of evidence of mitigating circumstances this Court has ruled that the trial court must expressly evaluate each mitigating circumstance to determine whether it is supported by the evidence and whether non statutory factors are truly mitigating in nature. Campbell v. State, 571 SO.
2 d 415, 419 (Fla. 1990). The court must find that a mitigating circumstance has been proved if it is supported by a reasonable quantum of competent. uncontroverted evidence. Nibert v. State, 574 So. 2d 1059, 1062 (Fla. 1990). "Once established, a mitigating circumstance may not be given no weight at all." Dailey v. State, In this case, the trial court's task was complicated by Wuornos's waiver of the right to present mitigating evidence. (T 10-32) Nonetheless, the trial court was still required to consider and weigh any mitigating evidence contained anywhere in the record to the extent that it was believable and uncontroverted. Far v.
State. 621 So. 2d 1368, 1369 (Fla. 1993).
To alleviate this task in future cases where the defendant waives the right to present mitigating evidence, this Court has ruled that defense counsel must inform the court of the mitigating evidence which he believes could be presented. Koo v. Duqqer. 619 So. 2d 246, 250 (Fla. 1993). While the Koo rule is intended to be prospective only, defense counsel in this case was aware of this Court's original opinion issued on June 4, 1992, reported at 17 Fla. L. Weekly 5337, (T 11) and told the court he could present the following evidence: Dr. Harry Krop would testify that Wuornos suffered from a borderline personality disorder. Dr. Donald DelBeato would say she has signs of antisocial and borderline personality disorder. (T 16) Det. Larry Horzepa would testify that Wuornos mentioned self-defense more than 40 times in her confessionandexplainedthatthe men either raped or assaulted her. (T 17) LoriGroddywouldtestifythatWuornos was adopted, had troublewithschool, includingtruancy. butdidnotreceive the recommended counseling, suffered from an untreated hearing impairment, was engaginginprostitutionat age 1 6. became pregnant when she was 13 or14, wassenttoa home forrunawaymotherswhere the child was takenfromher, andspenttimeinareformatory. (T 17-19) DR. KropwouldtestifythatWuornos ' family was dysfunc - tional, and Wuornos suffersfromalcoholdependency. (T19) Following the presentation of the State ' s evidence, counsel suggestedthatthecourt would find doctors ‘ reportsinthecourt file. (T 174) He argued that Lori Groddy ' stestimonyshoweda manifestation of behavioral problems when Wuornos was child consistent witha borderline or antisocial personality disorder for which she received no help. She was abandonedbyhermotherand adopted. She wasargumentative and angry, displayed extreme shifts inemotional behavior, and was sexuallypromiscuous. Wuornos was aproblemchild, runaway, andexperimentedwithdrugs. alcohol, LSD, and owners. She became aprostituteatanearly age. She was raped, became pregnant, had to try to hide this from her family, andhadababy at; theageof 13 or 14. (T 174-75) Wuornos was senttoAdrianSchool. When she returned home, she was toldto Counselalsoargued that Tyria Moore'stestimonyshowedthat Wuornos grewupwithalcoholicparentsandbecamean alcoholic. (T 175-76) Bobby Cops testifiedthatWuornos was outof control. (T 176) Investigator Tilley testified that Wuornos attempted to help the police locate the body of a seventh victim in South Carolina.
Wuornos also cooperate with the police by confessing. (T 176-77) Wuornos had four prior death sentences; even if they were all commuted to life, she would serve a minimum of 100 years. (T 177) In the sentencing order, the court expressly evaluate three non statutory mitigating circumstances:
(1) The defendant believed that she was acting in self-defense; (2) The defendant demonstrated contrition and cooperate by confessing and trying to assist the police in locating the body of her seventh victim; and (3) her prior convictions and sentences should make society feel safe witha life sentence for this murder.
(R 104; A 5) The court rejected the first two on the ground they were not proven. (R 104-05; A 5 - 6) The court found that the third was not mitigating. (R 105; A 6) The court found that none of the statutory mitigating factors exist in this case. (R 105; A 6) The court erred in finding no mitigating circumstances to exist. The record before this Court shows uncontroverted evidence of several mitigating circumstances: A. mental or emotional disturbance, B. Wuornos's troubled childhood, C. a history of drug and alcohol abuse, D. impaired capacity, E. cooperation with police, F. religious belief, and G. Wuornos's prior sentences would protect the public.
A. Mental or Emotional Disturbance Section 921.141(6)(b), Florida Statutes (1991). establishes as a mitigating circumstance, "The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance."' This Court has effectively removed the adjective "extreme" from the statutory circumstance:
However, it clearly would be unconstitutional for the state to restrict the trial court's consideration solely to "extreme" emotional disturbance. Under the case law, any emotional disturbance relevant to the crime must be considered and weighed by the sentencer, no matter what the statutes say.
Cheshire v, State, 568 SO. 2d 908, 912 (Fla. 1990).
Dr, Harry Krop reported that he had evaluate Wuornos on January 9, 1992, and diagnosed her as suffering from a borderline personality disorder with paranoid features. He evaluate her again on July 10, 1992, and found that her condition had worsened so that she was then suffering from a delusional disorder, persecutory type. (R176) Dr. Joel Epstein reported that he evaluate Wuornos on August 6, 1992, and found that she was suffering from a personality disorder. (R 178, p. 1, 3, 5) Dr.
Don DelBeato reported that he evaluate Wuornos on August 7. 1992, and found that she suffered from a borderline/antisocial personal- Dr. Sprehe's report was inherently unreliable because he far med his opinion an the basis of a "rather brief" conversation in which Wuornos refused to be examined by him, saying she had waived mitigation. (R 179) Furthermore, he did not have an opinion that he could render with reasonable medical certainty, only reasonable medical probability. (R 179) With this weak predicate, he opined that Wuornos had a long standing personality problem. but it would not quality as an extreme mental or emotional disturbance or substantial impairment of her capacity. (R 179) Again, this Court has ruled that the mitigating circumstance is not restricted to extreme disturbance. Cheshire, 568So. 2 d at 912.
This evidence that Wuornos suffered from a mental or emotional disturbance was not in any way refused by the evidence at the penalty phase trial. In fact. the testimony of three State witnesses corroborated the doctors' findings by showing that her behavior, both in childhood and as an adult. displayed symptoms of her personality disorder.
Lori Groddy was Wuornos's aunt by birth and sister by adoption. (T 147) Groddy testified that Wuornos was very argumentative and quick tempered asa child and became rebellious as she got older. (T 142) She got upset over little things. She had problems with school and truancy. She ran away from home several times. (T 143) She had a bad attitude problem and would not follow their parents' rules. (T 144) She became involved in prostitution. (T 144-45) She began drinking and using drugs. (T 145) She became pregnant. tried to hide the pregnancy, and told their father she had been raped. She was sent to an unwed mother's home to have the baby at age 13 or 14. The baby was given up for adoption. (T 140-41, 146-47) Wuornos got in trouble again and was sent to Adrian's School Home for Girls. (T 139, 141) When she returned home, she got into an argument with their father, and was told to abide by his rules or leave for good. Wuornos ran away.
(T 139-40) She then wandered across the country. finally settling in Florida. (T 146) Tyria Moore lived with Wuornos from June, 1986, to June, 1990.
(T 115-16) She testified that Wuornos said she was adopted by her grandparents, but did not get along with her grandfather and stayed away from home as much as possible. She began prostitution in her early teens. She had a baby and put it up for adoption. She had sex with her brother. She was sent to reform schools, but she ran away. (T 119-20) She had scars on her forehead from an incident in which she and her sister started a fire. She ran away from home when she was a teenager. (T 121) Wuornos was easily angered over little things, then she was happy again ina few minutes. Sometimes there was no reason for her anger. (T 122) Wuornos was depend ant on alcohol and drank heavily on a daily basis. She could easily drink a case of beer ina day and was almost always high on alcohol. (T 122-23) Bobby Cops testified that he met Wuornos at a truck stop on November 4, 1990. and agreed to give hera ride. (T 64-65) Initially, Wuornos was really nice, then she propositioned Cops.
When he rejected her offers, she became increasingly graphic about what she would do. (T 66) "Her personality changed. She became more aggressive, meaner. " (T67) After Cops tricked Wuornos into exiting his car at a gas station, she got really mad and "'went off the deep end." She threatened to kill him. (T 68) The evidence of Wuornos's mental or emotional disturbance was believable and substantially unrefuted, so the trial court erred by failing to find and weigh this mitigating circumstance. Far, 621 So. 2d at 1369. In Far, this Court specifically found that the trial court erred by failing to consider and weigh mitigating evidence contained in psychological evaluations after Far had waived the presentation of mitigating evidence. and that this error required the death sentence to be vacated and remanded fora new penalty phase hearing. JcJ. Moreover, the United States Supreme Court ruled that the Eighth Amendment mandated consideration of evidence of the defendant's antisocial personality disorder in mitigation in Eddinqs. 455U. S. at 107, 115. And this Court has recognized that evidence of the defendant's borderline personality disorder is mitigating. Being v. State, 620 So. 2d 171 (Fla.
(1993) (counsel ineffective for failure to present mitigating evidence including borderline personality disorder).
B. Appellant's Troubled Childhood The testimony of Lori Groddy and Tyria Moore summarized above to show that Wuornos's childhood behavior displayed symptoms of her personality disorder also established that Wuornos had suffered the ill effects of a troubled childhood, which included an inability to get along with and abide by the rules of her grandparents, trouble with school and truancy. teenaged drug and alcohol abuse, teenaged prostitution, sex with her brother, having an illegitimate child, possibly as the result of a rape. giving the child up for adoption, repeatedly running away, being sent to reform schools, and finally leaving home for good while still in her teens. (T 119-21, 139-47) In addition, Groddy testified that Wuornos's teenaged mother abandoned her and her brother. (T 147) Moore testified that Wuornos said her grandfather drank almost every day, and her grandmother died of liver disease. (T 120) The United States Supreme Court specifically required the consideration of evidence of a troubled childhood in mitigation in Eddinss, 455 U.S. at 107, 115. This Court has also recognized that evidence of a difficult childhood is mitigating. Scott v. State.
603 SO. 2d 1275, 1277 (Fla. 1992); Maxwell v. State, 603 So. 2d 490, 491-93 (Fla. 1992). In Maxwell, this Court ruled. "The rejection of a mitigating factor cannot be sustained unless supported by competent substantial evidence refusing the existence of the factor." -, Id at 491. Since the State presented no evidence to refute the testimony of its own witnesses about Wuornos's troubled childhood, the court erred by failing to find and weigh this mitigating circumstance.
C. Drug and Alcohol Abuse As set forth above, Groddy testified that Wuornos began drinking alcohol and using drugs, including marijuana, LSD, and owners, asa teenager. (T 145) Moore testified that Wuornos was dependent upon alcohol, drank heavily on a daily basis. easily consuming case of beer ina day, and was almost always high on alcohol. (T 122-23) This unrefuted evidence from the States own witnesses established both a history of alcohol and drug abuse and the likelihood that Wuornos was drinking on the day of the offense.
This court has repeatedly found such a history of alcohol and drug abuse to be mitigating. Far, 621 So. 2d at 1369; Heiney, 620 So.
2d at 173; Kramer v. State, 619 So. 2d 274, 277-78 (Fla. 1993);
Clark. State. 609 So. 2d 513, 515-16 (Fla. 1992). Again, the trial court erred by failing to find and weigh this mitigating circumstance.
D. Impaired Capacity Section 921.141(6)(f), Florida Statutes (1991). provides asa mitigating circumstance, "The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired." However, the legislature cannot constitutionally limit consideration of impaired capacity asa mitigating factor solely to those who are "substantially" impaired. See Cheshire. 568 So. 2d at 912 (cannot limit consideration to "extreme" emotional disturbance).
Dr. Epstein's report included a summary of prior report by Dr. Bernard that "Ms. Wuornos' character structure leads her to be an impulsive and effectively unstable individual. He notes that she is likely to have decreased ability in her ability to control her anger. " (R 178. p. 3) DR. Epstein concurred. "She does appear to have fewer internal resources than mast individuals and is susceptible to problems in control." (R 178, p. 4) On the other hand, DR. Epstein concluded, "There appears to be no on-going psychotic process or thought disturbance which would mitigate her responsibility to control her own behavior." (R 178, p. 5) This apparent self-contradiction most likely reflects DR. Epstein's misunderstanding of the law regarding mitigating circumstances in capital cases. There is no legal requirement that Wuornos be medi cally diagnosed as psychotic before her impaired capacity to control her behavior can be considered.
Dr. DelBeato found that Wuornos suffered from a borderline/antisocial personality disorder and asa result would have "impaired conscience; low stress and frustration tolerance; bitter and suspicious thought; assault ive behavior and sudden mood swings." (R 177. p. 5) In other words. her ability to recognize that her conduct was wrong and to control her wrongful behavior was impaired by her personality disorder.
Again, DR. Sprehe's opinion that Wuornos's capacity was not substantially impaired was not reliable because it was not based upon an examination of Wuornos and was not given with reasonable medical certainty. (R 179) Testimony by the States witnesses confirmed the doctors' findings regarding Wuornos's impaired capacity for self-control.
Cops testified that when he rejected Wuornos's offers, her personality changed and she became more aggressive and meaner. (T 67) After he tricked her into exiting his car, she "went off the deep end" and threatened to kill him. (T68) Moore testified that Wuornos was easily angered by little things. and sometimes there was no reason for her anger. (T122) Moore's testimony that Wuornos drank heavily on a daily basis and was almost always high on alcohol (T122 - 2 3) established the strong probability that Wuornos was drinking heavily on the day of the offense, so that her capacity to control her behavior was further impaired by her alcohol consumption.
Because the record presents believable and substantially unrefuted evidence that Wuornos's capacity to appreciate the criminality of her conduct and to conform her conduct to the requirements of the law was substantially impaired, the trial court erred by failing to find and weigh this mitigating circumstance.
Far, 621 So. 2d at 1369; Maxwell, 603 So. 2d at 490; Santos
E. Appellant's Cooperation with Police Both the defendant's cooperation with the police anb the fact that the defendant confessed have been recognized to be mitigating circumstances in capital cases. Maulden v. State, 617 So. 2d 298, 302 (Fla. 1993); DeAnqelo v. State, 616 SO. 2d 440, 443 (Fla.
1993); Perry v. State, 522 So. 26 817. 821 (Fla. 1988). The States own evidence established that Wuornos cooperate with the police by freely and voluntarily confessing to seven murders, giving the police directions to locate the murder weapon, and by going with them to South Carolina and trying to find the body of the seventh victim. (T 44, 85-86, 99-100, 110-12, 133-34, 161-65) The trial court considered and rejected this mitigating evidence on the ground that it did not believe Wuornos was truly cont rite. (R 104-05; A 5-6) This Court has ruled that lack of remorse cannot be considered as an aggravating factor nor as an enhancement of an aggravating factor. Huff v. State, 495 So. 2d 145, 153 (Fla. 1986); Pope v. State, 441 SO. 2 d 1073, 1078 (Fla.
(1983). Similarly, the court should not be permitted to use its perception that Wuornos was not genuinely remorseful to negate an otherwise valid mitigating factor. Regardless of Wuornos's degree of remorse, the fact remains that she readily cooperate with the police by confessing, giving directions to locate the murder weapon, and attempting to locate the body of the seventh victim.
Again, the court erred by failing to find and weigh a mitigating circumstance supported by unrefuted evidence. Far, 621 SO. 2 d at
F. Religious Belief This Court has recognized that the defendant's genuine religious belief is a positive character trait which use be considered in mitigation. Sinqer v. State, 544 So. 2d 1010, 1012 (Fla. 1989). Wuornos repeatedly expressed her belief in God and her hope for salvation at the penalty phase trial: "All Icare about is going to God. because I know I'm innocent." (T23) "I know that I have the Lord on my side and that I'm innocent." (T 23) "I am firmly into Lord Jesus Christ. I'm a firm believer in God." (T 24) While some defendants reign religious belief hoping for some personal benefit in the sentencing process, Wuornos was not seeking more lenient treatment. Her statements were made while she was waiving her rights to a jury, to be present, and to present mitigating evidence (T 15-32) Moreover. she was requesting a death sentence: "As far as I'm concerned, you can sentence me to death right now and send me back to death row." (T 23) *'I wouldn't accept life. So death is the way it's going to be." (T 25) "I would be just as happy if you just said: Okay, death row.
That's it." (T26) Wuornos's religious beliefs were also shown by the doctors' reports. Dr. Epstein stated, "Even though she feels she has done something wrong by killing other human beings. she feels that because of the nature of her situation she will be forgiven and eventually go to Heaven." (R 178. p. 2) Dr. DelBeato noted, "I observe some religiosity as Ms. Wuornos says she has found God and wants salvation. She says she reads the Bible every day." (R 177, Because the record before the court established Wuornos's genuine religious belief, the court erred by failing to find and weigh this mitigating circumstance. Far. 621 SO. 2d at 1369;
G. Appellant's Prior Sentences The State proved that Wuornos was sentenced by the Fifth Circuit Court on May 15, 1992, to death for each of the three first-degree murders committed in Marion and Citrus counties. (T 33-34; Statesexhibits2, 3, and 4) The State waived consideration of another judgment and sentence for first-degree murder in Volusia County. (T 34) The State told the court, but failed to prove, that Wuornos was also sentenced to death for first-degree murder in Dixie County. (T 34) In fact, Wuornos was not sentenced in Dixie County until February 4, 1993, (T 181) one day before the sentencing hearing in this case. (R 119) Defense counsel argued that Wuornos's four prior death sentences should be considered in mitigation. If they were all commuted to life, Wuornos would serve a minimum of 100 years and never come out of prison. (T 177) The court rejected this argument, stating, "Her other convictions are an aggravating circumstance and her sentences on those convictions are not considered by this court to be in any way mitigating in this case. " (R 105; A 6) The court erred by ruling that Wuornos's sentences were not in any way mitigating. In Jones. State, 569 So. 2d 1234, 1239-40 (Fla. 1990), this Court held, Counsel was entitled to argue to the jury that Jones may be removed from society for at least fifty years should he receive life sentences on each of the two murders. The potential sentence is a relevant consideration of the 'circumstances of the offense ' which the jury may not be prevented from considering.
Just as the potential for removing Jones from society for fifty years was mitigating in that case, the fact that Wuornos had already been sentenced to death in other cases was a relevant mitigating factor in this case. If any one of those death sentences is carried out, it will most certainly protect society from any further harm by Wuornos. In Wuornos's own words, "This is unnecessary. I've got five death sentences. Why one more? How many times do you people want to kill me? You can only kill me once." (T 21) Even if all of Wuornos's death sentences are eventually reduced to life. society would still be protected by the cumulative effect of the 2 5 year mandatory minimum portions of those sentences, as in Jones. While the trial court was entitled to determine the weight to be given to this circumstance, it violated the Eighth Amendment by excluding it from consideration. Eddings, 455U. S. at The court‘errors in failing to find and weigh several relevant mitigating factors established by unrefuted evidence cannot be deemed harmless and requires resentencing. Far, 621 So.
2d at 1370. Although the court stated that the few mitigating circumstances it considered and rejected “pale in comparison to the aggravating circumstances found to exist,” (R 185; A 6) the court‘s aggravating circumstance findings were also erroneous, as argued in Issue IV, supra, and the combination of errors in finding unproven aggravating circumstances and rejecting proven mitigating circumstances rendered the court's decision to impose the death sentence so unreliable that the sentence must be vacated. and the case must be remanded for resentencing. Campbell, 571 SO. 2d at
ISSUE VXI
THE TRIAL COURT VIOLATED THE UNUSUAL
PUNISHMENT PROHIBITION OF THE FLORI-
DA CONSTITUTION BY IMPOSING ADIS -
PROPORTIONATE DEATH SENTENCE.
This Court conduct proportionality review of every death sentence to prevent the imposition of unusual punishment prohibited by Article I. section 17 of the Florida Constitution. Kramer v.
State, 619 So. 2d 274, 277 (Fla. 1993); Tillman v. State. 591 So.
2d 167. 169 (Fla. 1991). Because death is a uniquely irrevocably penalty. death sentences require more intensive judicial scrutiny than lesser penal ties. Tillman. at 169. "While the existence and number of aggravating or mitigating factors do not in themselves prohibit or require a finding that death is nonproportional." this Court is "required to weigh the nature and quality of those factors as compared with other similar reported death appeals." Kramer. at
277. Application of the death penalty is reserved "only for the most aggravated and least mitigate murders. " - Fitzpatrick v. State. 527 So. 2 d 809, 811 (Fla. 1988); State.
Dixon, 283 So. 2d1, 7 (Fla. 1973), cert. denied, 416 U.S. 943. 94 This case is not among the most aggravated murder cases in Florida. AS argued in Issue IV, supra, two of the three aggravating circumstances found by the court are invalid because they were not proved beyond a reasonable doubt, thus eliminating the court's findings of cold, calculated, and premeditated and committed during the commission of a robbery. As also argued in Issue IV. the remaining aggravator, prior convictions for capital and violent felonies, is partly defective because the court considered five prior first-degree murder convictions, while the State expressly waived one of them and proved only three.
This Court has affirmed death sentences supported by only one aggravating factor only in cases involving "either nothing or very little in mitigation." White v. State, 616 SO. 2d 21, 26 (Fla.
(1993); Sonaer v. State, 544 So. 2d 1010. 1011 (Fla. (1989). In White, the only valid aggravator was prior convictions for violent felonies. The mitigators included drug use. mental or emotional disturbance, and impaired capacity. This Court; found that the death sentence was disproportionate. Id., at 2 5 - 2 6.
Similarly, in DeAnselo v. State, 616 So. 2d 440 (Fla. 1993).
the only aggravator was cold, calculated. and premeditated. The mitigators included a history of conflict between DeAngelo and the victim, service in the army and asa firefighter. DeAngelo's confession. brain damage, and mental illness. Again, this Court held that the death sentence was disproportionate. u..
at 443-44.
In Nibert v. State, 574 SO. 2d 1059 (Fla. 1990), the only aggravator was heinous, atrocious. or cruel. The mitigators included childhood abuse, remorse, potential for rehabilitation, mental or emotional disturbance, impaired capacity. chronic alcohol abuse, and heavy drinking on the day of the offense. Again. this Court found that the death sentence was disproportionate. Id., at In Sinqer, the only aggravator was under sentence of imprisonment. The mitigators were mental or emotional disturbance, impaired capacity. age 23, remorse. drug dependency, adaptation to prison, positive change in character. emotionally impoverished childhood. positive influence on family, and religious belief.
This Court ruled that death was disproportionate. u..
544So. 2d at 1011-12.
In this case there area number of mitigating factors similar to those in White, DeAnqelo, Nibert, and Sonser which render the death sentence disproportionate. As argued in Issue VI, supra, the record before the court established seven factors which should have been found in mitigation: mental or emotional disturbance, a troubled childhood. a history of drug and alcohol abuse with the strong probability that Wuornos was drinking heavily on the day of the offense, impaired capacity. cooperation with the police, genuine religious belief. and Wuornos's prior sentences will protect the public from any further harm by her.
Even if this Court rejects Wuornos's arguments that two of the aggravating factors found by the trial court are invalid, the substantial mitigating circumstances in this case render the death sentence disproportionate. This Court has found other death sentences disproportionate in cases involving multiple aggravating factors and substantial mitigating factors similar to those in this case.
In Kramer, the aggravators were conviction of prior violent felony and heinous. atrocious. or cruel. The mitigators were alcoholism, mental stress, severe loss of emotional control, and potential to be productive in prison. This Court found the death sentence was not proportional. Id.. 619 SO. 2d at 277 - 7 8.
In Fitzpatrick. the aggravators were conviction of a prior capital or violent felony. great risk of death to many people.
committed during a kidnapping, avoid arrest. and pecuniary gain.
The mitigating factors were mental or emotional disturbance, impaired capacity, low emotional age, and brain damage. This Court found that the death sentence was disproportionate. Id., 527So.
2d at; 812.
There are also jury life recommendation cases with even more aggravating factors found by the trial court and similar mitigating factors which demonstrate that the death sentence is disproportionate in this case. In Scott v. State. 603 So. 2d 1275 (Fla. 1992), the trial court found five aggravators: committed during robbery;
heinous, atrocious, or cruel; cold. calculated. and premeditated;
prior convictions for violent felonies; and avoid arrest. This Court reversed the death sentence because the jury's life recommendation was supported by evidence of several mitigating factors:
difficult and abused childhood; mentally impaired with adjustment disorder, brain damage, and borderline intelligence; drug and alcohol abuse; emotionally unstable and immature; and the capacity to form loving relationships.
Also. in Carter v. State, 560 So. 2d 1166 (Fla. 1990), the trial court found five aggravating factors and no mitigating factors. This Court reversed the death sentence because the jury's life recommendation was supported by evidenceof brain damage, mental disturbance, impaired capacity. childhood abuse. and chronic alcohol and drug abuse. Id.. at1168 - 6 9.
As shown by comparison to the other cases cited above, Wuornos ' s crime inthiscase was not among the most aggravated and least mitigate murders to come before this Court for review.
Instead, itisvery much likethecasesinwhichthis Court has reversedthedeathsentenceandremanded for impositionofalife sentence. Wuornos's crime was the product of her mental or emotional disturbance, troubled childhood, alcohol abuse, and impaired capacity. Her potentialforrehabilitationis shown by hercooperationwiththepolice and her developmentofgenuine religious beliefs. Societywillbe more than map ly protectedby her sentences another cases. This Court should rule that the death sentence is disproportionate and remand this case with directionstosentence Wuornos tolife.
CONCLUSION
Appellant respectfully requests this Honorable Court to reverse the judgment and sentence and remand this case tothe trial court for the following relief: Issue I, to allow appellant the opportunity to withdraw her guilty plea; Issue 11. to conduct a new penalty phase trial witha jury and to appoint special counsel to present mitigating evidence if appellant again waives this right;
Issue Riff, to conduct an evaluation of appellant's present competency to stand trial before conducting a new penalty phase trial or other proceedings; Issues IV, V, and VI. to reweigh the aggravating and mitigating circumstances and resentence appellant;
or Issue VII, to resentence appellant to life.
APPENDIX
PAGE NO.
1. The Trial Court's Sentencing Order 1-7
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY
STATE OF FLORIDA,
Indictment for vs I Murder in the First Degree
AILEEN WUORNOS
/ Case Nurnber.91-1232CFAES Xemorandua of Findings in Support of Sentence On June 22, 1992, the defendant, Aileen Wuornos, plgd - q u - ilty.
to the First Degree Murder of Charles E. Carskaddon. That:@leat, was accepted by Circuit Judge Lynn Tepper. '. _ On January 2 5, 1993, His Wuornos appeared before this c'&rt -l fora sentencing proceeding by a jury pursuant to Section 921.141, Florida Statutes. She was represented at this proceeding by Hr.
Steven P. Glazer, Esquire. At this proceeding, Miss Wuornos orally and in writing waived her right to (a) present any mitigating evidence, (b) have a jury recommend a sentence pursuant to Section 921.141, Florida Statutes, and (c) her presence at the sentencing proceeding before the court. His Wuornos was quite adamant that she wanted no mitigating evidence presented on her behalf and that she wanted to be sentenced to death and have that sentence executed as soon as possible.
After careful inquiry by the court of Miss Wuornos and her attorney, Mr. Glazer, and after Mr. Glazer indicated on the record the mitigating evidence he believed available to the defendant (pursuant to prospective rule enunciated in Koo v. Dugger, 17 FLW 5337 (June 4, 1992)), the court allowed His Wuornos to waive her right to present any mitigating evidence, to have a jury recommend a sentence, and her presence at the sentencing proceeding required by Section 921.141, Florida Statutes.
In preparation for sentencing Miss Wuornos, this court has carefully reviewed the Florida law related to sentencing in capital cases (§921.141, Florida Statutes, and cases construing this statute) and also carefully reviewed the application of the principles of the United States Constitution to sentencing in capital cases. Furnark IL Geora ia, 408U.S. 238, 33 1;. Ed 2d 346, 9 2 Sect. 2726 (1972); Profit L Florida, 428U.S- 242, 49 L.Ed 2d 913, 96 See. 2960 (1976); State. Pixoq, 283 So.2d 1 (Fla, 1973)- A pre sentence investigation was not considered by this court to offer any assistance and was not requested. It is not required.
ThonDson State, 328 So.2d 1 (Fla. 1976).
Florida law only allows two choices in imposing sentence for capital murders, those being life imprisonment witha mandatory minimum service of 2 5 years in prison before being eligible for parole, or death. (5775.082, Florida Statutes).
The Florida legislature has also established guidelines to control and direct the exercise of the sentencing court's discretion in selecting and imposing the appropriate sentence in capital cases. (5921.141, Florida Statutes). Under these guidelines, the sentencing court must consider and weigh specific aggravating and mitigating circumstances and all other mitigating circumstances that might be established.
From the evidence presented during the sentencing proceeding on January 25, 1993 and the argument to the court by the State and defense counsel, this court finds beyond a reasonable doubt that the following three aggravating circumstances exist:
1 (§SZl.141(5) (b), Florida Statutes). His Wuornos was previously convicted of five capital felonies and several other felonies involving the use or threat of violence to a person. The testimony and documentary evidence establishes beyond any doubt that Miss Wuornos has been previously convicted of five first degree murders and several counts of robbery.
2. (§921.141(5)(d), Florida Statutes), This murder was committed while Miss Wuornos was engaged in the crime of Robbery.
Mr. Carskaddon's body was found ina secluded, rural area, The body was nude and hidden under a green electric blanket which was covered with grass and other vegetation. There was no identification on or near the body. Ilr. Carskaddon had been shot 8 times, His car usa stolen and a pistol identified as belonging to Hr. Carskaddon had been pawned by the defendant in Daytona Beach. Those facts, together withthepattern established by Miss Wuornos in other murders, convinces this court beyond any reasonable doubt that His Wuornos killed Hr. Carskaddon while the defendant was engaged in robbing him.
3. (§921.141(5)(i), Florida Statutes). This murder was committed ina cold, calculated, and premeditated manner and without any pretense of moral or legal justification.
Although in her 3 1 hour confession it appears that Miss Wuornos mentioned self-defense several times, the totality of the evidence presented to the court convinces the court beyond any reasonable doubt that this murder was committed without any pretense of moral or legal justification; it was committed to facilitated a robbery.
This aggravating circumstance requires n.,. some sort of heightened premeditation, something in the perpetrators state of mind beyond the specific intent required to prove premeditated murder". Brow v. State, 473 So.2d 1260, 1268 (Pla. 1985); Jenl y.
-8 408 So.2d 1024 (Fla - 1981), cert. denied 457U. S. 1111, 102 (Fla. 1982); Combs State, 403 So.2d 418 (Fla. 1981), Cert. denied Carskaddon was not the first of His Wuornos' murder victims. The evidence indicates that by the time Miss Wuornos killed Mr.
Carskaddon she had a well established pattern of selecting white, middle-aged male victim, luring them to a secluded area with promises of sex, shooting them multiple times in the torso, and stealing their Mooney, car and all other valuable personality in their possession. The theft of Hr. Carskaddon's property did not occur spontaneously following his killing. Miss Wuornos carefully and calculatingly selected this victim, stalked him and lured him to a secluded area with the intent of killing and robbing him.
This kind of heightened premeditation and cold, calculated execution qualifies the murder of Charles Carskaddon by His Wuornos for this aggravating circumstance. Frovenzano -state, 497 So.2d 1177 (Fla. 1986).
Having found aggravating circumstances to apply, this court must determine whether there are any mitigating circumstances to weigh against these aggravating circumstances.
Although Mr. Glazer was prohibited by his client from presenting any evidence of mitigation, he argued ably that the evidence presented by theState demonstrated three non-statutory mitigating circumstances: (1) The defendant believed that she was acting in self-defense; (2) The defendant demonstrated contrition and cooperate by confessing and trying to assist the police in locating the body of her seventh victim; and (3) her prior convictions and sentences should make society feel safe witha life sentence for this murder.
This court finds that circumstances (1) and (2) were not proved. There was no evidence that Miss Wuornos believed she was - acting in self-defense in killing Hr. Carskaddon. Mentioning self defense several times during a rambling confession is not evidence that this killing was cornnritted under any pretense of self-defense.
But even if His Wuornos had testified on her own behalf that she believed that she was acting in necessary self-defense in killing.I&. Carskaddon it would not have been believable in light of the other evidence. Confessing to crimes and assisting in the location of the body of a victim does not necessarily demonstrate contrition. The rambling comments of Miss Wuornos at the beginning of this sentencing proceeding on January 25, 1993, indicated affirmatively that His Wuornos feels no contrition for this crime.
Circumstance (3) is not a mitigating circumstance. Her other convictions are an aggravating circumstance and her sentences on those convictions are not considered by this court to be in any way mitigating in this case. However, even if all three circumstances are considered to be mitigating, they pale- in comparison to the aggravating circurnstances found to exist.
Even though Hr- Glazer did not argue that any of the statutory mitigating circumstances exist, this court carefully considered the existence of all of the mitigating circumstances listed in Section 921.141(6), Florida Statutes. Upon that consideration, this court finds that the record and the evidence presented at the sentencing proceeding clearly establish that none of the seven statutory mitigating circumstances (592l.i41(6)(a) - (g)) exist in this case.
Therefore, this court finds that under Florida law the appropriate sentence for His Wuornos for the first-degree murder of Charles Carskaddon is death.
DONE AND ORDERED in, Floriaa, L\.
5th day of February, 1993.
copy to:
State Attorney Steven Glazer, Seq, Aileen Wuornos
CERTIFICATE OF SERVICE
I certify that copy has been mailed to Margene A.
Roper. 210 N. Palmetto Ave.. Suite 447. Daytona Beach. FL 32114, (984) 238-4990. onthis day of December. 1993.
Respectfully submitted,
JAMES MARIONMOORMAN PAUL C. HEL
Public Defender Assistant PublicDefender Tenth Judicial Circuit Florida Bar Number 229687
(813) 534-4200 P. 0. Box 9000 - Drawer PD Bartow, FL33830
.c AILEEN CAROL WUORNOS, Appellant, MAR 98?9w
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
ANSWER BRIEF OF APPELLEE
ROBERT A, BUTTERWORTH
ATTORNEY GENERAL
MARGENE A, ROPER
ASSISTANT ATTORNEY GENERAL
FL. BAR. # 302015 210 IV. Palmetto Avenue Suite 447 Daytona Beach, Florida 32114
(904) 238-4990
COUNSEL FOR APPELLEE
TABLE OF CONTENTS
PAGES:
I. THE TRIAL COURT PROPERLY ACCEPTED
APPELLANT ' S PLEA OF GUILTY AFTER DETERMINING
THAT THERE WAS A FACTUAL BASIS FOR IT AND
ASCERTAINING THAT IT WAS BEING ENTERED
I1 THE TRIAL COURT PROPERLY ACCEPTED
APPELLANT'S WAIVER OF HER RIGHT TO TRIAL BY
JURY, TO BE PRESENT AND TO PRESENT EVIDENCE
111. APPELLANT'S CONDUCT AT THE PENALTY
PHASE WAS NOT IRRATIONAL AND DID NOT RAISE
REASONABLE GROUNDS TO BELIEVE SHE WAS NOT
COMPETENT TO PROCEED AND THE TRIAL COURT DID
NOT ERR IN NOT ORDERING A REEVALUATION OF HER
IV. THE TRIAL COURT PROPERLY FOUND
AGGRAVATING CIRCUMSTANCES WHICH WERE PROVEN
V. THE FELONY MURDER AGGRAVATING
CIRCUMSTANCE IS NOT CONSTITUTIONALLY
VI. THE TRIAL COURT DID NOT FAIL TO FIND AND
VII, THE DEATH SENTENCE IN THIS CASE IS
PROPORTIONATE TO OTHER DEATH SENTENCES
TABLE ~ OF AUTHORITIES CASES: PAGE:
Aqan v. Duqqer, Anderson v. State, Bowden v. State, Breedlove v. State, Burns. State, Cabana v. Bullock, Carter v, State, Clark. State, Clark. State, Clemons v. Mississippi, Cook v. State, Cooper v. State, -Crump v. State, DeAnqelo v. State, Duncan v. State, Durocher v. State, Dusky v. United States, Far v. State, Felchv. State, Geralds v. State, 601 SO. 2d 1157 (Fla. 1992)............................ 40Gibson. State, Gore v. State, Hall v. State, Hall v. Wainwriqht, Hamblen v. State, 527 So. 2d 800 (Fla. 1988)............................. 30Hardwickv. State, Henry v. State, Henry v. State, Huff v. State, Hunt v. State, Johnson. State, Jones. State, Jones v. State, Klokoc v. State, Koenig v. State, Koo v. Duqqer, Lara v. State, Lopez v. State, Lowenfield v. Phelps, McKinney v. State, Mills. State, Nibert v. State, Nixon v. State, Nowitzke v. State, Owen v. State, 596 So. 2d985 (Fla. 1992)......,.................... 48Pacev. State, Palmes v. State, Pardo v. State, Peede v. State, Perez v. State, 351 So. 2d 384 (Fla. 3rd DCA 1977)..................... 2 3 Pettitv. State,
STATEMENT OF THE CASE AND FACTS
Arraignment Aileen Wuornos was arraigned in the Sixth Judicial Circuit in and for Pasco County on May 10, 1991, for the first degree murder of Charles Carskaddon. She was represented by the Public Defenders Office of Dade City, Florida. She entered a plea of not guilty. She complained of receiving bad treatment at the Pasco County Jail and indicated she was thinking of filing a law suit against them, She stated that the conditions were unsanitary in that there was urine and faces on the floor. She said she slept on a mattress on the floor with one sheet and blanket and no pillow. She indicated they told her they would like to shoot her and electrocuted her right there. She asked to return to Volusia County as soon as possible. The court informed her she would be brought back to Volusia as quickly as possible
(R 223-224). At the conclusion of the hearing she told Judge Swanson to "have a nice day." (R 225).
Pre-Trial Conference A pretrial conference was had on April 23, 1992. Mr.
Glazer, Wuornos' newly appointed attorney, indicated that Wuornos had given him specific instructions to enter a plea as she did not want to fight this case (R 274). She also wanted to waive the penalty phase. Wuornos thought that at one time there was negotiations for life sentences. The prosecutor confirmed that some months ago when Wuornos was represented by Mr. Ble, State Attorney Tanner's Office attempted to negotiate with Wuornos for life sentences in all counties (R275). The deal was struck by all of the state attorneys except for Mr. Russell. The state indicated it was still seeking the death penalty in this case (R 275-276). The prosecutor noted that while Wuornos had received one deat, h penalty in Volusia County, after the trial she had expressed a great deal of dis pleasure with her lawyer, Ms.
Jenkins, indicating she had not called a witness she wanted. The prosecutor saw on the horizon a "3.850 big time." (R276) * Defense counsel advised the court that there was case law allowing a defendant to waive mitigation but then indicated "But the fact that I do intend to present some sort of mitigation--in other words, Ms. Wuornos has instructed me to not try to close all the holes for3.850." (R277 - 278).
Plea Hearing When counsel indicated at the plea hearing that he had discussed Wuornos' concerns with her at great length he also stated that he had done so several times, and at the change of plea in Marion County, as well (R 201). The court determined that Wuornos understood she could not challenge the actions of the police in taking her statement in this case although she could challenge it in the case in which she had a guilt phase (R Wuornos was more than pleased with her attorney, Mr.
Glazer. She even indicated "I think he's a wonderful, honest, true-grit with integrity lawyer here." (R 210).
When the court scheduled the penalty phase for July 14, Wuornos sought to waive her presence. The court explained to her that at the penalty phase the state and defense would have an opportunity to present aggravating and mitigating witnesses.
Wuornos indicated she did not wish to be present. The court asked if she understood she had an absolute right to be present.
Wuornos stated "I absolutely understand all of this. I do not want to be present for any of this. I just prefer to go back to CBI and send me a letter that I got death row." (R 217). The judge indicated that counsel was to work out a form of communication with the jail so that it could be confirmed each day that she wished to waive her presence (R 218).
Competency/Mental Health Psychologist Harry Krop evaluate Wuornos on January 9, 1992. He diagnosed her as having Borderline Personality Disorder with paranoid features. She was subsequently incarcerated on death row. Dr. Krop saw her again on July 10, 1992, and felt that she had decompensated. Ina July 1 3, 1992, letter to 0 Wuornos' attorney, Steven Glazer, Dr, Krop indicated that as the session progressed she became increasingly paranoid and manifested a full-blown delusional system. He also indicated that "at this time, she is exhibiting a fixed delusional system which suggests that she perceives her former attorneys as well as her present lawyer as part of a conspiracy." It was Dr. Krop's opinion that she was suffering from Delusional Disorder, Persecutory type. He felt that she was incompetent to proceed and her ability to rationally participate in plea bargaining was significantly impaired (RJ75). This is the letter defense counsel presented to the court on July1.4, 1992, which resulted in the appointment of additional experts, Dr. Donald Del Beato and Dr. Joel Epstein, to evaluate Wuornos' competence to stand trial.
Ina report dated August 11, 1992, psychologist Don Del Beato reported that he evaluate Wuornos ina clinical interview and also administered a MMPI-2. He observed some religiosity but indicated that was not unusual in inmates who have been in serious trouble. He found that she was not psychotic. Although he found some paranoid idea tion, suspicious ness and cynicism this was mainly aimed at correctional officers whom she felt had mistreated her in Pasco and Volusia County. She spoke highly of her attorney, Mr. Glazer, who she felt was honest and a great person. She believed that her previous defense attorneys had rolled over from the pressure. She was planning to sue unnamed persons who had embellished stories about her to make Mooney. She felt this was unnecessary since she plead guilty. She told Dr.
Del Beato quite frankly, "I am guilty. I killed them in cold blood. All I care about is salvation." She further indicated she was tired of being parade in the lime light like a break.
She disliked being referred to as the first female serial killer as she feels she is not. She did not complain of unfair trials.
She did complain of having to go through the process when she was quite willing to plead guilty. She felt it was a waste of taxpayers' Mooney. Dr. Del Beato did not observe Wuornos to be delusional. The MMPI-2 revealed a profile associated with emotionally unstable persons whore seen 6 s delinquent, antisocial, egocentric, immature, impulsive and demanding witha poorly integrated conscience. Such persons "are manipulative in trying to get out of stressful situations, and are seen as disruptive, provocative and irritable. They do not learn well from mistakes." Dr. Del Beato's diagnostic impression was that of Antisocial/Borderline Personality. Wuornos appeared quite able to disclose pertinent facts to her attorney. Without probing she readily admitted to Dr, Del Beato "Waiving my rights to trial is all I need. There's no way. I am point blank guilty. I killed them in cold blood. I know what I ' m doing."
Wuornos did not feel the need to challenge the prosecution in light of the fact that she had already been convicted and sentenced to death. She stated "Just let me die in peace, I ' m guilty anyway. " Dr. Del Beato felt that "While tragic, tne statement is not delusional or psychotic but quite realistic."
Wuornos admitted that she had behaved inappropriately in Judge Tepper's court because she was frustrated and blowing off steam because she felt she was being parade around like a break. Dr.
Del Beato further indicated that "Ms. Wuornos was capable of convincing this experienced examiner that her wanting to waive her rights for trial appearance was reasoned.'' Dr. Del Beato concluded that Wuornos was competent to proceed with trial and to waive her right to personally appear (R 177).
Psychologist Joel J. Epstein evaluate Wuornos on August 6, 1992. He found Wuornos competent to enter a plea and waive any rights to future appearances or appeals, He determined that her reasoning and judgment were not significantly compromised by any organic mental defect, insufficiency, illness or transient emotional state, She displayed a satisfactory understanding of the legal process and the ramifications of her actions. Wuornos stated that the probability of her being able to appeal and reverse all murder charges against her was very low. With the number of charges against her she felt that she will, in all likelihood, end up being executed at some time in the future.
She decided it was not worth her effort and energy to try to defend herself against the charges as it would only postpone the inevitable. Dr. Epstein found that her reasoning and thinking appeared logical, purposeful, and goal-oriented. There was no indication of a thought disorder. She stated that it was her belief that she had done wrong by killing other human beings.
She felt that there was an element of self-defense in all of her actions, nevertheless. Because of the nature of her situation she felt that she will be forgiven and eventually go to Heaven.
Dr. Epstein noted that Dr. Bernard did not feel that Wuornos was at any time psychotic during her offenses. She was able to recall events to Dr. Epstein in detail and he noted that her consciousness did not appear cluded during the time of the murders. Her score on the MMPI-2 was consistent with some type of personality disorder. Similar individuals have problems with impulse control, often develop addiction problems, and are often effectively unstable. "The items endorsed by Ms. Wuornos indicated that shehasa great deal of difficulty with authority figures. She presents as a very alienated individual both socially and emotionally." Dr. Epstein found there was no evidence of an underlying schizophrenic disorder. She is able to see the world ina realistic manner. The Rorschach responses indicate she is a narcissistic individual witha tendency to over-value her own personal worth. She is self-focused and very selt-centered. "In many ways she can be seen as very naive and simplistic. At times her ideational activity may be marked by some faulty logic and judgment. Her thinking and reasoning abilities, however, do not appear to reflect any pathological processes but are seen as that of an immature or unsophisticated individual." By her own reasoning, Wuornos did not feel that there was much of a probability that she would not end up being executed. It is for this reason that she does not have any desire to go through with appeals or future trials. Dr. Epstein noted that "she feelz that by taking others lives she has done something wrong and should be punished. She apparently would be motivated to defend herself and help herself in the legal process if she were convinced that there was at least some possibility of acquittal on all the charges that are against her. " Dr. Epstein concluded: "Interview and test results would indicate that Ms.
Wuornos is competent to make any plea decisions of her choosing.
There is no evidence of any significant mental defect or organic deterioration at this time. Thinking and reasoning are logical, purposeful, and goal-oriented. Emotionally, she is under satisfactory control. Her psychological test data indicated that diagnostically she is best characterized as having a personality disorder. There appears to be no on-going psychotic process or thought disturbance which would mitigate her responsibility to control her own behavior (R178).
On December 10, 1992, the court granted a state motion to have Wuornos examined by mental health experts for the purpose of presenting penalty phase evidence and ordered examinations by Dr.
Sydney Merin and Dr. Daniel Sprehe (R78 - 7 9).
Dr. Sprehe concluded in his report that it was his opinion within a reasonable medical probability, based on his review of materials, that Wuornos was not suffering from any major demonstrable mental or emotional problems at the time of the charge and though she had a long standing personality problem, this would not quality as being under the influence of extreme mental or emotional disturbance. It was his opinion that she had the capacity to appreciate the criminality of her conduct and to conform that conduct to the requirements of the law (R 179).
At the telephonic competency hearing defense counsel also moved for a continuance. Although counsel had previously indicated Wuornos wanted to waive the penalty phase (R 274-275) he now informed the court that Wuornos had been communicating witha childhood friend and told him about a week ago that she wanted her asa witness, which was a new development, She had never asked for it before. Counsel stated that she would be raising an ineffective assistance of counsel claim against her public defenders in the Volusia County caae because they failed to call that witness, Dawn Botkins. Defense counsel felt compelled to call her this time. The penalty phase was continued
(R284 - 285).
Penalty Phase Wuornos' first victim was Richard Mallory in Volusia County. In her statements she indicated that she killed him in self-defense because he was attempting to rape her (R P.P. 5).
Defense counsel did not attempt to introduce evidence of a rape that a person by the name of Mallory attempted to commit in Rockville, Maryland in 1957 in order to bolster the self-defense aspect of the case because he could not prove that that Richard Mallory was actually the victim in this case (R P.P. 6).
In regard to the waiver of mitigating evidence by Wuornos, when defense counsel stated what evidence would have been presented, he also stated "I think approximately seven or eight doctors have talked to Ms. Wuornos over the last two years. Not one of them said that she was incompetent at the time. All doctors say that she knew right from wrong. The issue of insanity at the time of the offense will not arise." (R P.P. 16).
Dr. Harry K ~ op had found Wuornos competent to make the decision to waive her presence during the penalty phase (R P.P.
Wuornos stated on the record that she wanted to waive her right to present any evidence in mitigation (R 19). She had been through the sentencing phase before and understood its purpose.
She knew that there would be an automatic appeal to the Supreme Court of Florida (R P.P. 21).
When Wuornos was questioned by the court as to whether she wanted counsel to presentmitigatingevidence she also responded that she did not care about the court system because she planned on telling the truth through a book before she died (R P.P. 24).
Wuornos was advised by the judge, on the record, that she a had the right to have a jury recommend whether she should be sentenced to life or death (R P.P. 25). Wuornos also responded "The jury has heard so many lies, they're not going to be eligible to determine anything." (R P.P. 25). The court corrected her, stating: "This jury hasn't heard any--" Wuornos indicated that she had discussed this very carefully many times with Mr. Glazer. She understood he thought she ought to have a jury and she was acting against his recommendation (R P.P. 26).
The state had no objection to proceeding to the penalty phase without a jury (R P.P. 27).
The court also explained to Wuornos that she had a constitutional right to be present for these proceedings. She reiterated that she wanted to waive her presence. She stated that she had also discussed this with counsel (R P.P. 27).
Wuornos indicated that she read the written waiver forms for the right to be present, to present mitigating evidence, and to have a jury, before singing the forms (R P.P. 28).
After Wuornos responded that it did not matter that she could present evidence of her belief she acted in self-defense because the public had been told so many lies, the judge informed her "The public is not going to make this decision." (R P.P. 30).
Wuornos responded "I think that people finally made an opinion after five death sentences that they could care less about one more. Anybody." (R P.P. 30).
The court allowed Wuornos tu waive her right to present evidence in mitigation and the right to a jury and her presence 0 at the hearing (R P.P. 31).
States Exhibits 1 through 4 were admitted into evidence without objection (R P.P. 3 3 - 3 4).
The area near Pittman Pond is overgrown. It lisa lover's lane, fishing hole and dumping area. Weeds and brush had been pulled and cut and strewn over the top of the green electric blanket to camouflaged it and the nude body underneath it (R P.P.
The victim found in Citrus County on June 1st was sitting, hadacap and socks on but was otherwise nude (R P.P. 37).
Detective Muck and Jerry Thompson of Citrus County went to Tallahassee to the profilers, They found that several other counties had similar homicides. They determined that one and the same person or persons had committed them (R P. P. 37). Most of the cars were south bound in direction when they were recovered from the murdered individuals (R P.P. 3 8).
Charles Carskaddon's Cadillac was not discovered on June 13th. It was actually found on June 7th by the Highway Patrol at the interstate in Marion County and it was red-tag ged, It was towed on June 13th. The Florida Highway Patrol took it to a junk yard. The sheriff's office retrieved it (R P.P. 3 8).
The task force worked every day out of Marion County. They set up a lead sheet program in the computer. Cainmie Green, Aileen Wuornos and Tyria Moore kept cropping up. Detective Muck searched Pasco County files and found Wuornos had lived in New Port Richey around 1985 and ina mot-el in Zephyrhills (R 39).
On January 9th Wuornos had been under surveillance for twenty-four hours or more. They used undercover people inside the bar with her, mostly from Citrus County. She was taken into custody at the Last Resort in Daytona Beach based on a warrant for violation of probation out of Volusia County under the name Lori Groddy. At the time she was taken into custody she had a key to a storage room that she was worried about. She referred to it as "the key to her life." (R P.P. 40; 85). Some of the personal property of the other victims found in the storage room included unique rings, billy clubs, flash lights, and a brief case, possibly belonging to Mr. Humphries (R P.P. 40).
States Exhibit 6, a photo of Mr. Carskaddon's Indian blanket and personal property of other victims was admitted into evidence without objection (R P.P. 41). States exhibit 7, a pawn ticket with Wuornos' fingerprint on it from Labosca Investments Pawn Shop and States Exhibit 8, Mr, Carskaddon's - 4 5 automatic pistol were admitted into evidence without objection (R P.P. 43). States Exhibit 9, a federal firearm transaction record reflecting that Carskaddon had purchased the gun in Kentucky was admitted without objection, as well (R P.P. 4 4).
Wuornos' videotaped confession was made to Detectives Horzepa and Munster. She said in the confession that she had shot and killed Carskaddon (R P.P. 44). She confessed, as well, to the homicide of David Spears. She recalled the pickup truck and that it occurred on Fling Lane, off of U.S. 1 9. (R P.P. 8 6).
States Exhibit 10, photograph of the green electric blanket which covered Carskaddon.I; body, and was in bad shape, was admitted without objection (R P.P. 47). Serial photos of the scene, States Exhibits 11 and 12; photos of the area around the body before it was uncovered, then after it was uncovered, depict ing the electric blanket with an arm protruding from the top of it, States Exhibits 13 and 14, were all admitted without objection (R P.P. 49).
Charles Carskaddon's 1975 Cadillac was brown in color (R Defense counsel, in order to eliminate any possible issue before this court, stated on the record that he did not object to the victim's mother identifying the property of the victim because he trusted the court, which was hearing the evidence, rather than ajury (RP. P. 5 4).
Charles Carskaddon's girlfriend was Peggy Hood (R56).
The medical examiner described the body at the scene as she observed it. She found the body of a white person of undetermined sex, face down, covered by a green or turquoise electric blanket which was covered by a large amount of uprooted tall grass. The body was very badly decomposing (R P. P. 59).
She was able to discerna pattern from the bullets. They were fired ina general fashion of interior/posterior and left to right ina fairly tight pattern, involving the mid line and right side both above and below the diaphragm, the muscle separating the chest organs from the organs of the abdomen (R P.P. 6 0 - 6 1).
She could not determine how far from the body the puzzle of the gun was at the time of firing due to the decomposition. She also could not determine the order in which the bullets entered the body. She further testified that all eight of the bullets were in region where they could have caused death but she could not specifically tell which ones did cause the death (R P.P. 61).
She could not tell the height and weight of Charles Carskaddon because of the decomposition of the body (R62).
' The defense indicated for the record that it waived an opening argument. It also had Williams Rule notice and waived any objections to the same, as well asa hearing, in accordance with the wishes of Wuornos (R63).
When Bobby Lee Cops gave Wuornos a ride on November 4, 1990, he was on his way to pay the insurance on his ring in Orlando. He went through a drive-in at a bank and cashed a check with Wuornos in the car. Just as they pulled back out on 27she started propositioning him.
When found, the body of David Spears was very decomposed.
Both Busch and Budweiser cans were found around the body (R P.P.
73). The shots that killed Spears were fired from CCI brand cartridges ina.22 caliber weapon (R P.P. 7 (5). There were a number of homicides in Florida occurring close to interstate or well-raf ficked roads (R P.P. 80), The Marion County Sheriff ' s Office prepared composites of the suspected females involved in the homicides (R P.P. 81). When Wuornos lived ina lodge in 1989, in Chassahowitzka, the area where the body was found, she used the alias Susan Blahovick (R P.P. 8 (2).
When found, the body of Charles fiumphries was not ina bad state of decomposition and an identification of him was made (R P.P. 8 9). Humphries had been driving blue, 1985 Oldsmobile Forenza. He was last seen alone at the Journey's End Motel in Wildwood (R P.P. 89). He had been travelling alone on the interstate (RP. P. 90). The beer cans that were found in the Green Swamp area of Lake County were Miller and Bnd (R P.P. 96).
The brief case Wuornos gave to Tyria Moore was identified as Humphries' by his wife. Additionally, the combination that opened the brief case lock was the first six Number of Humphries' social security number (R P.P. 99). Other than the brief case none of Mr. Humphries personal property or cash was recovered (R Tyria Moore, as well as Aileen Wuornos, gave directions to the Volusia County Sheriff's Office dive team as to where the weapon used in the homicides could be found, They went to the location, dove under Walter and recovered the weapon (R P.P. 9 9).
The weapon fired the shell casing found in Lake County (R P. P.
The body of Troy Burress was found on a dirt road off of S.R. 19. It should be noted that S.R. 1 9 is also a major highway and is sometimes referred to as U.S. 1 9 (R P.P. 102). Burress' body was found on August 4, 1990, ina rural, deserted, wooded, area of Marion County (R P.P. 102). Burress' body was in an advanced state of decomposition (R P.P. 103). Burress' clipboard and receipt were located approximately a tenth of a mile from his body. His wallet, credit cards and papers had been thrown into the woods (R P.P. 104). The $ 290, 0 0 Purress was carrying in the bank bag was not found at the scene (R P.P. 106). No property belonging to Mr. Burress was recovered from Wuornos' storage locker or from Tyria Moore. The cash and bank bag were not recovered (R P.P. 109). When Wuornos was interviewed at the Volusia County Jail she confessed t>o killing seven men and provided details of how and where she met Mr. Burress and how she killed him (RP. P. 110; 112).
Tyria Moore and Aileen Wuornos lived together in Holly Hill, Florida in June 1990 (R P. P. 116). Wuornos told Moore she lived with her grandparents until her early teens, then she ran away from home. Wuornos also told her that some guy that looked like Ellis got her pregnant. Wuornos never described being beaten, hit or scolded by her father, Glory Wuornos, that Moore recalled (R P.P. 119).
The wooded dirt road on which the body of Walter Antonio was found was a two-nut wooded road uqed for logging. There are no residences in the area for miles (R P.P. 126). Antonio was en route to Birmingham, Alabama from his home in Cocoa at the time of his death (R P.P. 130).
Wuornos' victims were older white males traveling alone.
They were killed by multiple gunshot wounds. Their bodies were found in deserted areas (RP. P. 130).
Lori Groddy testified that her father spanked the children but not severely (R P.P. 140). He quit spanning them as they got older (R P.P. 142). They were grounded if they did something wrong (R P.P. 140).
There was no problem between Wuornos and her mother. The father was the one that enforced the rules (R P.P. 144).
Richard Mallory's car was recovered on December 1, 1989 (R P.P. 150). Portions of Mallory's body were badly decomposed (R P.P. 153). Everything from the collar bone up to the top of the head was totally decomposed (R P.P. 1.54) There was a bullet entry wound to the right side of Mallory's chest and three entry wounds in the front (R P.P. 155).
Prior to Detective Horzepa's interview with Wuornos at the Volusia County Jail on January 16th, she had been advised of her constitutional rights and had been afforded an opportunity to speak to a lawyer (R P.P. 161).
SUMMARY OF ARGUMENT
1. Wuornos understandingly waived her spurious defenses of intoxication and self-defense at the plea hearing after discussing them with counsel and the trial court properly ascertained that there was a factual basis far her guilty plea.
A second inquiry was not required. Wuornos has demonstrated no manifest injustice to warrant setting aside the plea. Wuornos' guilty plea was voluntary and intelligent and entered with full knowledge of the rights she was waiving.
2. Wuornos knowingly and voluntarily waived her right to an advisory jury in the penalty phase. She also knowingly and voluntarily waived her right to be present in the penalty phase.
Her voluntary absence was tact fully preferable to her defense attorney than the certain disruption she would cause if present.
Wuornos' waiver of the right to present mitigating evidence was essentially a sham as defense counsel made a case for mitigation and ably argued the same to the judge.
3. Wuornos' behavior at the penalty phase, while vituperative, was not irrational and raised no reasonable grounds to believe that she could not consult with her lawyer witha reasonable degree of rational understanding or lacked a rational as well as factual understanding of the proceedings against her.
4. The CCP aggravating factor was properly found. A careful plan or pre arranged design to kill is evident from the fact that the murder was committed ina secluded area, Wuornos came into the victim's car armed, she executed the victim by shooting him eiglit times ina vital area, and the purpose of the murder to conceal a robbery so she could continue her trade. No pretense of moral or legal justification was established by the ludicrous portrait of a serial killer continually acting in "self-defense."
The capital felony was properly found to have been committed during the commission of a robbery. There was no "after-thought" robbery. The robbery motive is apparent form the taking of property from previous victims. Upon repetition an after-thought becomes a fore thought. She also indicated she killed the victims to escape detection. The trial court properly found the aggravating circumstance of previous conviction of a capital felony based on Wuornos' numerous prior death sentences and an armed robbery conviction. Any erroneous finding of aggravating factors was harmless beyond a reasonable doubt.
5. The legislative determination that a first-degree murder that occurs in the course of another dangerous felony is an aggravated felony is reasonable and the fact that there are numerous dangerous felonies does not mean that there is a lack of channel ing as to the committed in the course of a felony aggravatos.
6. There was no evidence to support a finding in mitigation that Wuornos acted under mental or emotional disturbance and there was psychiatric testimony to the contrary. Wuornos admitted to killing her victims in cold blood. Wuornos' actions in committing the murders were lot demonstrated to be significantly influenced by her childhood experience which was not abusive. There was no evidence that Wuornos' control over her behavior at the time of the murder was reduced by alcohol abuse or that she was even intoxicated at the time. Wuornos knew right from wrong, tried to conceal the crime and appreciate the criminality of her coil duct. She was convicted of armed robbery in 1982 and was not arrested again until some seven or eight years later and obviously could conform her conduct to the requirements of law if she chose to. Tyria Moore also directed the police to the murder weapon. No seventh body was ever found.
Wuornos' cooperation with the police was not an expression of contrition and not particularly mitigating. Religiosity is common in prisoners. Her violent felonies were properly viewed only in aggravation. A serial killer should not benefit by the sheer number of his victims.
7. Wuornos' death sentence is proportion ate to other robberyjmurder or multiple aggravation cases with no mitigation or very weak mitigation, especially where there are numerous prinr murders.
ARGUMENT
a I. THE TRIAL COURT PROPElUY ACCEPTED APPELLANT'S PLEA OF GUILTY
AFTER DETERMINING THAT THERE WAS-"A- FACTUAL BASIS FOR IT AND
ASCERTAINING THAT IT WAS BEING ENTERED KNOWINGLY AND VOLUNTARILY.
Wuornos attacks her guilty plea as not being intelligently and voluntarily made. She complains that (1) the facts recited by the prosecutor in establishing a factual basis for the plea did not include a reputation of her claims of intoxication and self-defense and the court made no inquiry into the factual basis for the plea at the plea hearing OF later at the penalty phase, after she asserted that she should be acquitted because it was justifiable homicide and she was innocent but did not want a trial because prosecutors would continue to lie about her, and again at the sentencing hearing after she insisted she had acted in self-defense. She.contends that she entered a guilty plea not because she admitted her guilt but because she was convinced she could not obtain a fair trial and such a plea is not an intelligent admission of guilt; and (2) the plea colloquy was also deficient because the court failed to address her waiver of her constitutional rights i.e., the privilege against compulsory self-incrimination, trial by jury, and the right to confront one's accusers, Where a defendant claims a defense during the plea proceeding, such as lack of criminal intent or self-defense, the plea is subject to attack unless the defendant specifically and understandingly waives that, defense, which is the case here.
Williams v. State, 316 So. 2d 267, 273 (Fla. 1975). The judge made extensive inquiry into the factual basis before accepting the guilty plea. The court explained to Wuornos that intoxication can be a defense and she was waiving it by pleading guilty. Wuornos said she understood (R 199). The court further explained that if Wuornos' plea was accepted she could only appeal the validity of the court's acceptance of her plea and not h ~ guilt r or intoxication defense. Wuornos did acknowledge her guilt and subsequently responded "I' m guilty. I killed him... "
(R 199-200). She also acknowledged that the issue of self defense in the Mallory trial was subject to appeal but by entering a guilty plea in this case there was no guilt phase to appeal (R 209). That Wuornos threw in additional complaints while acknowledging she would be giving up these defenses is not dispositive, Wuornos' statements indicate little more than the fact that she felt that she ought to have the defense of self defense available to her not that she actually believed she had a Legal defense of self-defense. As the court may note from her other cases before it, Wuornos is bitter at the legal system and given to rambling in-court statements whenever the opportunity arises. Counsel also indicated that he had discussed Wuornos' concerns at great length, and Wuornos understood she was giving up her defenses of self-defense, intoxication and insanity. He confirmed that she understood exactly what was happening (R 201).
A court may satisfy itself as to the existence of a factual basis for a plea by not only the statements and admissions of a defendant but also by his coc, nsel. Williams v. State, 316 So. 2 6 267 (Fla. 1975). The evidence in this case is sufficient to establish that Wuornos was aware of possible defenses when she entered the guilty plea but waived such defenses after discussing them with defense counsel. Cf. Welch v. State, 354 So. 2d 147 (Fla. 1st DCA 1978). Also, Wuornos was no notice. She had previously plead guilty in Marion County (R 201). Since Wuornos did waive her defenses, the prosecutor did not have to' put on evidence refusing defenses she had waived. It should also be noted, however, that the factual basis set forth by the prosecutor, actually did refute a claim of self-defense. This victim was shot eight times and his property taken, all pursuant to a robbery plan.
A second inquiry is not warranted where the requisite inquiry has been made and a factual basis determined, simply because a defendant later takes a, position contrary to his statements at a plea hearing. See, Perez v. State, 351 So. 2d 384 (Fla. 3rd DCA 1977). Such claim can hardly be raised in good faith in this case. Wuornos was examined after the plea hearing by several psychologists because Dr. Krop felt her ability to rationally participate in plea bargaining was impaired
(R 176). She told Dr. Del Beato "I am guilty, I killed them in cold blood. 'I She further indicated "Waiving my rights to trial is all I need. There's no way. I am point blank guilty. I killed them in cold blood. "I know what I'm doing." (R 177). It is also worth noting that although Wuornos initially planned on pleading nolo contendere and could have checked on the plea form that she was innocent of the charge but felt the plea was in her best interest, the plea form reflects that, instead, she checksd the paragraph which indicated that she admitted that she was guilty of the charge she plead to (R32). Wuornos realistically assessed her situation and told Dr. Epstein that the probability of her being able to appeal and reverse all murder charges against her was very low. With the number of charges against her she felt that she would, in all likelihood, end up being executed and decided it was not worth her effort and energy to try to defend herself against the charges as it would only postpone the inevitable. Although she felt there was an "element" of self defense in her actions she believed she had done wrong by killing other human beings (R 178). She indicated she had behaved inappropriately before Judge Tepper because she was blowing off steam because she felt she was being parade around like a break
(R177). Defense counsel later indicated to the court that he had found new evidence that the first victim Richard Mallory had been convicted of a sex crime and spent ten years ina prison facility for mental health. Counsel claimed that Mallory had two social security Number, one that led to a clean record and one that led to the conviction in Maryland (R 135). Counsel stated that "the fact that it was so easily found leads us to believe maybe there was a Brady violation. But now that we do know about it, we are going to put it in our record as far as that's concerned, And Ms. Wuornos, I had her sign a paper waiving her appearance in light of the new evidence." (R 136). Counsel further indicated: "Having that evidence now, I explained toM s * Wuornos that she should go to trial and try to develop that as her self-defense strategy, and she once again has said that she would like to keep her plea of guilty and move on to the penalty phase." (R 135). Guilty plea procedures are not designed to provide a procedural technicality to avoid the administration of justice. Hall v. State, 316So. 26279 (Fla, 1975).
In the event that insufficient inquiry was made into the factual basis for the plea, the plea should not be vacated.
Failure of a trial judge to establish, on the record, the factual basis fora plea does not require that the plea be set aside unless manifest injustice results. There is no indication from either the record or the arguments on this appeal that Wuornos was prejudiced in any manner which would justify vacating her plea. The purpose of a factual basis is to avoid a defendant mistakenly pleading to the wrong offense. Williams v. State, 316 So. 2d 267 (Fla. 1975). There was little chance of that in this case since Wuornos had previously plead to first degree murder on similar facts in Marion County, In view of her confession and similar fact evidence establishing a unique pattern of robbery/murder she had no viable defense of self defense.
Wuornos had the effective assistance of counsel and the plea was entered by her personally and voluntarily with knowledge of the charge and the sentence that could be imposed, ~ See, Suarez v, State, 616 So. 2d 1067 (Fla. 3rd DCA 1993). It is obvious, in any event, that Wuornos is storing her ammunition and will make her last stand on a Florida Rule of Criminal Procedure 3.850 motion.
Before the plea hearing Wuornos signed a form which described in detail the rights she was waiving (R 30). The court ascertained that her attorney had gone over the form with her when she signed it (R 196). The court questioned Wuornos and a ascertained that she was born in 1956; completed the ninth grade in school; could read and write; was not or! medication or under the influence of drugs or alcohol; and had never been adjudged mentally incompetent (R 198). The court also ascertained that four doctors had examined Wuornos and found her competent to go to trial and to meet with her attorney and discuss the facts.
Counsel represented that Wuornos understood what was going onand was in full control of her mental faculties (R 202). Wuornos indicated she had discussed this and other cases with her attorney. She was satisfied with her attorney's services. She further indicated she had read the plea form and understood everything (R 203). She initiated each part that had been changed from nolo to guilty. Wuornos indicated she signed the form freely and voluntarily. Counsel again represented that he had gone over the content of the plea form with Wuornos and she appeared to understand it (R 204).
Unlike the situation in Koenig v. State, 597 So. 2d 256 (Fla. 1992), where there was nothing in the record to demonstrate that the defendant could understand the form he signedor what his attorney told him about it, since the record did not reflect the extent of Koenig's education or whether he could even read, the court in this case assured itself that Wuornos' background and mental state was such that shewasable to comprehend what she had read and, in fact, did comprehend it. Beyond and above that the court also ascertained thatthe rights she was waiving had been explained and discussed with her by her attorney. There was a sufficient basis in the record in this case to determine Wuornos' plea was voluntary and intelligent.
11. THE TRIAL COURT PROPERLY ACCEPTED APPELLANT'S WAIVER OF HER
RIGHT TO TRIAL BY JURY, TO BE PRESENT AND TO PRESENT EVIDENCE OF
MITIGATING CIRCUMSTANCES.
Section '321.141(1)t Florida Statutes (1993), authorizes the waiving of the empaneling of a penalty phase jury after a guilty plea by the defendant. This court has previously acknowledged that a defendant may knowingly and voluntarily decide to waive an advisory jury in the penalty phase. Hunt v. State, 613 So. 2d 893, 899 (Fla. 1992). This court has long held that upon a finding of a voluntary and intelligent waiver a trial judge may proceed to sentence a defendant without an advisory jury recommendation. That the trial judge also has discretion to require an advisory jury recommendation despite a defendant's a waiver of the same, points to no error in this case.
Carr, 336So. 2d 358, 359 (Fla. 1976); See also, Palmes v, State, State.
397 So. 2d 648, 656 (Fla. 1981). Appellant has shown no abuse of discretion in the trial court's acceptance of Wuornos' waiver and the dispensing of an advisory jury. Wuornos' waiver was lrriowingly and voluntarily made. Wuornos had been through the penalty phase process before. She understood its purpose and knew there would be an automatic appeal to the Supreme Court of Florida (R P. P. 21). She was advised by the court of her right to have a jury recommend whether she should be sentenced to life or death (R P.P. 25). She discussed. the waiver of a jury many times with her attorney. She recognized that he thought she ought to have a jury and was acting against his recommendation (R In Peede v. State, 474 So. 2d 808, 814-15 (Fla. 1985), this court held that "just as in non capital cases, the presence requirement is for the defendant's protection and, just as he can knowingly and voluntarily waive any other constitutional right, a defendant can waive his right to be present at stages of his capital trial if he personally chooses to voluntarily absent himself.." Realistically, there is little choice but to grant a previously convicted capital defendant this option if she insist upon it, especially if she has been disruptive in the past, for someone already sentenced to death will certainly not fear a contempt conviction and acting out or being restrained in front of the sentencer will certainly do such defendant's cause no good. This court recognized as much in Nixon v, State, 572So.
2d 1336, 1342 (Fla. 1990), where it held That a murder defendant will not be forced to attend his capital trial if his actions or the means used to ensure his presence would prejudice him in the eyes of the jury. The "right" not to attend recognized in Nixon involved the guilt phase at which a defendant's attendance would seem to be even more important. Wuornos had already been uncooperative and disruptive in proceedings before the lower court. In regard to the possibility of it happening again at the penalty phase counsel stated "And if all you need to hear from Ms. Wuornos is that, according to the Nixon case is that she'll disrupt the proceedings if forced to attend, I can guarantee you that will more than likely happen, and I do not want a jury viewing that. So it'satacticaldecision. " (R 215).
It is clear that Wuornos, herself, did not want to attend the penalty phase. She understood that she had an absolute right to be present (R217). She previously, waived her presence in two prior cases (R P.P. 12). She was found competent to make the decision not to be present for the penalty phase (R P.P. 19).
The court addressed Wuornos on the record and ascertained that she did wish to waive her presence (R P. P. 20). She understood the purpose of the sentencing phase (R 21). She was informed that she had a constitutional right to be present at the penalty phase. She was told by the judge that her attorney felt that she should be present and put on evidence (R P.P. 2 7). The judge made a recommendation to Wuornos that she present some mitigating evidence, allow a jury to make a recommendation, and that she be present during the penalty phase (R P.P. 2 8). Nevertheless, Wuornos persisted in waiving the right to present evidence, to a jury, and to be present (R P.P. 29).
The present case is distinguishable from the decisions of the Eleventh Circuit Court of Appeals. In Proffitt v.
Wainwriqht, 685 F.2d 1227 (11th Cir. 1982), the defendant did not knowingly or voluntarily waive his right to be present. Hall v.
Wainwriqht, 733F.2d 766 (11th Cir. 1984), involved an absence for unknown reasons during communications to the jury and it also was not known if Hall knowingly and willingly waived his right to be present. It is clear in any event, that defendant can waive her right to be present by voluntarily absent ing herself from the courtroom. Taylor v. United States, 414 U. S.
curiarn). No federal. case law mandates prior testing of the ability of one who the state has custodial control of to absent herself by first presenting a spectacle to the jury before @ ultimately removing such defendant in accordance with her wishes.
This court has consistently held that a defendant may, if done knowingly and voluntarily, waive participation in the penalty phase. E.g,, Pettit v. State, 591 So. 2d 618 (Fla.
(1992); Henry v:?--State,586 So. 2d 1033 (Fla. (1991); Anderson _ v - State, 574So. 2d 8 7 (Fla. (1991); Hambl.en v. State, 527 So, 2d 800 (Fla. (1988). This court has refused to recede from this line of cases allowing capital defendants to waive presentation of mitigating evidence in the penalty phase, Far v. State, 621 So.
2d 1368, 1369 (Fla. 1993); Durocher v. State, 604 So. 2d 810 (Fla. 1992), and further found no inconsistency with the decision in Klokoc v. State, 589 SO. 2d 219 (Fla. 1991).
I Far, 621 So. 2d at 1369. In Hamblen v. State, 527 So. 2d 800 (Fla. 1988), this court rejected the requirement for special counsel when a defendant waives the presentation of mitigating evidence. In Koo v. Duqqer, 619 So. 2d 246, 250 (Fla. 1993), this court established a prospective rule to be applied when a defendant wishes to waive his right to present mitigating evidence:
When a defendant, against his counsel ' s advice, refuses to permit the presentation of mitigating evidence in the penalty phase, counsel must inform the court on the record of the defendant's decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigatinyevidence that could be presented and what that evidence would be + The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel's recommendation, he wishes to waive presentation of penalty phase evidence.
619 SO. 2d at 250. This court further held in Far v. State, 621 So. 2d 1368, 1369 (Fla. 1993), that the requirement that mitigating evidence be considered and weighed when contained anywhere on the record, to the extent it is believable and uncontroverted, applies with no less force when a defendant argues in favor of the death penalty, and even if the defendant asks the court not to consider mitigating evidence.
At the beginning of the penalty phase in this case Wuornos' lawyer informed the court that she did not want to put on any mitigating evidence and all that she wished for was the death penalty (R P.P. 11). Wuornos was brought into the courtroom.
Counsel again indicated that she wished tc waive presentation of any mitigating evidence. He stated in Wuornos' presence that he had discussed the waiver carefully with her (R P.P. 15). Counsel had previously indicated at a pretrial conference that he did intend to present some sort of mitigation and that Wuornos had instructed him not to close all the holes for 3.850 (R 277-278).
Counsel catalogued the evidence based on his investigation he believed to be mitigating that could be presented. Counsel indicated he would expect Dr. Krop to testify that at the time the offenses were committed that Wuornos suffered from a borderline personality disorder; DT. DonaldDel Beato, appointed by the court, would state that she has signs of anti-social and borderline personality disorder; the capital felony was committed while Wuornos was under the influence of extreme mental or emotional distress; Wuornos' capacity to appreciate the criminality of her conduct or to conform her conduct to the requirements of law was substantially impaired; that her confession indicated she believed she had acted in self-defense;
that signs of an anti-social personality developed in her adolescence, that she had trouble in school and was truant, suffered from a hearing impairment, and despite the fact her parents were informed that she needed counseling, never received any help; she prostituted herself at age 16; she became pregnant at age 13, could not go to her parents for help, was sent to a home and the child was taken from her; she and her brother Keith spent time ina reformatory; she and her brother got into trouble while her parents' natural children had no trouble; Wuornos came from a dysfunctional family; and she suffer from alcohol dependency (R P.P., 15-19).
The judge then addressed Wuornos personally, asking if it was correct that she wanted to waive her right ta present any evidence of mitigation in the sentencing phase (R P. P. 1 9). She indicated that she had five death sentences and this one wouldn't change anything and she wanted to waive off everything (R P.P, 20). She indicated she had been present at a penalty phase before, understood exactly what was going on, and understood the purpose of the sentencing phase. She understood there was an automatic appeal to this courtofanydeath sentence she received (R P.P. 21). She was familiar with the evidence her attorney wanted to present (R P.P. 22). She indicated she did not want Mr. Glazer to present that mitigation on her behalf and wanted to waive her right to present any evidence in mitigation in the sentencing phase (R P.P. 23). The court irrformed her that it was her attorney's opinion that she should be present and present some evidence. She indicated that she wanted to give up that right (R P.P. 27). Wuornos had read the waiver forms before singing them. The court recommended that she present some mitigating evidence, allow a jury to make a recommendation and be present during the sentencing phase (R P.P. 2 8). She again reiterated that she wanted to waive those rights and had no questions about them. She was informed she could present evidence of her belief her actions were in self-defense (R P. P.
29). She acknowledged that counsel had told her that (R P.P.
Subsequently on cross-examination of Bobby Cops in the penalty phase counsel brought out the fact that when he refused Wuornos she started getting out of control, became belligerent and shook Cops up, and that he had never encountered anyone like her (R P.P. 6 9 - 7 0). Counsel also brought out the fact that Wuornos had cooperate with the authorities in trying to locate the body of the seventh victim Peter Siems (R P.P. 111). On cross-examination Tyria Moore confirmed Wuornos had been adopted by her grandparents, took up prostitution in her early teens and had a baby that was putupforadoption (R P.P. 119) - She also indicated the grandfather drar. kwine daily; the grandmother died of liver disease; Wuornos had sex with her brother Keith; had run away from a couple reformatories; didn't get along with her father and stayed away from the house; ran away from home; left home in her early teens; had burns on her forehead from starting a fire with her sister; would get mad over little things and be happy again two minutes later; got upset over things she shouldn't have; was dependent on alcohol and; was almost always high on alcohol (R P.P. 120-123). Counsel brought out on cross examination of Investigator Pinner that credit cards were not taken from victim Walter Gino Antonio's wallet; that he had handcuffs, a badge, billy club and black flash light and that in her confession Wuornos indicated he told her he was a police officer, fla shed his badge and wanted sex for free (R P.P. 135- 136). On cross-examination of Lori Groddy counsel brought out the fact that she didn't find out Wuornos was adopted until she was around ten years old and Wuornos was around seven; the father spanked the children when they were yqungrithen grounded them as they got older; Wuornos got into arguments with her friends every day from age eight to twelve; became rebellious as she got older;
has a quick temper; sometimes got upset over little things; had a hearing problem; had problems with school and was truant; ran away from home quite a few times, beginning at age twelve; had a bad attitude when she came back from the reformatory and wouldn't follow rules and would yell at her parents; was not evaluate by mental health people except fora psychiatrist at the Adrian School for girls; prostituted herself while she was still living at home; drank beer, experimented with marijuana, and took owners as she got older; traveled around the United States from age fifteen to twenty; told her father she was raped after she became pregnant; her mother is Groddy's natural sister, Diane;
Diane left Wuornos and her brother witha cousin who asked the grandparents to take them (R P.P. 141-148). Counsel also brought out the fact that Wuornos freely confessed despite being advised to wait and see her lawyer and that she indicated she committed the crimes in self-defense and was drunk a lot of the times the crimes were committed (R P.P. 164 - 166).
At the conclusion of the testimony in the penalty phase defense counsel stated "Judge, while I 'm not allowed to present any mitigation, we tried to glean it from the evidence that we did hear. " Counsel then extensively argued for mitigation (doctor's reports; behavioral problems consistent with borderline personality or anti-social disorders for which Wuornos received no help; being abandoned by the mother; adopted; bad temper;
shifts in emotions; promiscuity; alcohol{c father; mother who died of cirrhosis of the liver; runaway; experimentation with drugs, alcohol, and owners; no counseling or help with problems; prostitution at an early age; belief she was raped; had a baby, hid pregnancy at thirteen or fourteen years old;
dysfunctional family that sent her to girls' school then kicked her out when she came back; left home for good at age sixteen or seventeen; out of control with Cops; tried to help police find body of Peter Siems after receiving three death sentences in Marion County; tried to helppoliceinher confession; four death sentences with 100 years minimum sentence; no prior record except one armed robbery from 1981 or 1982 if this case was tried first;
robbery was an after thought; engaging in commission of felony not proven; no stalking, tracking, lying in wait; CCP not applicable if victim threatened Wuornos in her state of mind; no evidence murder was heinous, atrocious or cruel; CCP not proven) (R P.P.
174-179). Counsel concluded his argument hy stating:
And, Judge, I won't bother to argue the death penalty in front of you because it's part of your law. But here's a woman who had three strikes against her from the day she was left by her mother and the day she started life.
She had no chance. And I ' m asking you to, against her wishes, I'm asking that you consider a life sentence without the possibility of parole because of the mental handicaps she operates under.
Although she knows right from wrong, she can't function and she does not function the way you or I might. And for that reason, there are seven dead people. But also ask the Judge to note that Tyria Moore said that she knew that Richard Mallory had been killed. This was her first victim, Ms. Wuornos' first victim. I suggest had Ms. Moore said something to someone, there would be six people alive today.
(R P.P. 179).
What I'm saying, sir, is after Ms.
Wuornos committed the first murder -- sir, I'm privy to same more information that doctors have told me because a lot of doctors I talked to were trying to find out why she killed and started -- and something happened to her with Richard Mallory that turned her into a Munster. And still at that point, her best friend and lover who saw there was something wrong, nobody ever got help for this woman. Nobody turned her in.
(R P.P. 180).
The issue of appoint ing special counsel is certainly not before the court in this case. Wuornos' attorney remained on the case and ably argued for mitigation. In fact, he elicited testimony and argued the very mitigate: rn Wuornos supposedly wanted to waive, Comparing the mitigation offered in Wuornos v.
State, No's 79,484 and 8 1, 059 reveals little difference except for the fact that counsel made his case on cross-examination and eliminated small amount of argument that had not worked before.
It can hardly be said that accepting a waiver of the right to present mitigating evidence in this case virtually assured a death sentence. Wuornos is hardly suicidal, She is obviously going to make a tactical frontal-assault on 3.850. Her waiver of the presentation of mitigation in this case was little more than a sham, considering what was presented, argued and considered.
Nevertheless, such waiver was knowingly and voluntarily made.
The court questioned her about waiving the presentation of mitigating evidence and she made a formal waiver of her right to present evidence at the penalty phase proceeding. Henry v.
State, 613 So. 2d 429 (Fla. 1992).
111. APPELLANT'S CONDUCT AT THE PEN.LTY PHASE WAS NOT IRRATIONAL
AND DID NOT RAISE REASONABLE GROUNDS TO BELIEVE SHE WAS NOT
COMPETENT TO PROCEED AND THE TRIAL COURT DID NOT ERR IN NOT
ORDERING A REEVALUATION OF HER COMPETENCY.
Wuornos' conduct in this case hardly leads to the conclusion that she was incompetent. She waived the right to present evidence in mitigation then had her attorney actually present it, She instructed him not to try to close all the holes for3.850 (R277 - 278). She then complains on appeal about such waiver.
On July 14, 1992, the cr>urt granted defense counsel's motion for the appointment of experts to examine Wuornos and determine her competency to proceed (R56 - 5 8, 61-62, 241-48).
Dr. Krop, who initially had concerns about Wuornos' competency to proceed ultimately found her competent to make the decision to waive her presence during the penalty phase (R P.P. 19). Dr. Del Beato also concluded that Wuornos was competent to proceed with trial and to waive her right to personally appear (R 177). Dr.
Epstein found her competent to waive any rights to future appearances (R 178).
Florida Rule of Criminal Procedure 3.210(b) imposes upon the trial court a duty or responsibility to conduct a hearing on a defendant's competency to stand trial whenever it reasonably appears necessary, whether requested or not. Gibson v. State, 474 So. 2d 1183 (Fla. 1985). In this case it was not necessary.
Mr. Glazer represented Wuornos in her Marion County cases and stipulated to her competence. He had known her for about a year.
He was present at her Volusia County trial and had read the doctors' reports and communicated with one of the psychologists.
Wuornos v. State, No. 81,059, Answer Brief of Appellee, p.55.
Counsel was familiar with the opinions of seven or eight doctors who had evaluate Wuornos over the last two years (R P.P. 16).
Counsel had asked for the reevaluation because he had noticed bizarre changes in her behavior (R242 - 243). This attorney, who was attuned to Wuornos' mental status, expressed no doubts as to her competency to proceed at the penalty phase. Aside from the personality disorder, Wuornos lacked a history of mental illness.
Wuornos ' statements at the penalty phase and sentencing hearing hardly demonstrate irrational or bizarre behavior. The average legally unschooled lay person would probably agree with Wuornos that after five death sentences, another proceeding was unnecessary since she can only be executed once. Bitterness at @ having to go through the process again and speculation that it is being required for political reasons or to antagonize her, while misguided, is hardly irrational. She is obviously unhappy with her prior death sentences and wishes that her legally insufficient defense of self-defense, which failed in her first trial, was legally sufficient. She is also apparently less than happy with her characterization in books and movies. With five previous death sentences Wuornos obviously feels that at this point in time she has nothing to lose and can say whatever she wants. Her behavior, while vituperative and self-righteous was hardly irrational. The bizarre idea tion displayed by the defendant in Nowitzke v. State, 572 So. 2d 1346 (Fla. 1990), is not present in this case. Wuornos did not Deland that the judge kill her as did the defendant in Pridqen v. State, 531 So. 26 951 (Fla. 1988). Her "big deal" attitude over this death sentence stemmed from the fact that no matter how many pronouncement were mad? she knew she could only be executed once. Wuornos was bitter because she felt her confession had condemned her and she certainly harbored no delusions that it would guarantee a life sentence as did the defendant in Aqan ~, - ~ Duqqer r835 (11th Cir. 1987). She made no threats to kill any specific person. Her behavior was consistent with Dr. Del Beato's report that "such persons are manipulative in trying to get out of stressful situations, and are seen as disruptive, provocative and irritable." (R177). No less should ki(+ expected of someone already facing execution with little to lose. It is also clear that Wuornos perceives her real battlefield to be the past conviction court and this proceeding meant little to her in her tactical scheme of things.
Appellant now confuses bitter, hostile acting out with bizarre behavior. Even if such behavior could be considered odd in some way it hardly meets the Dusky v. United States, 362U. S.
402 (1960), test, and reveals no inability to consult with her lawyer witha reasonable degree of rational understanding or lack of rational, as well as, factual understanding of the proceedings against her.
IV. THE TRIAL COURT PROPERLY FOUND AGGRAVATING CIRCUMSTANCES
WHICH WEE PROVEN BEYONDAREASONABLE DOUBT,
A. Cold, Calculated and Premeditated To establish heightened premeditation necessary for finding 0 that a murder was committed in a cold, calculated, and premeditated manner the evidence must show that the defendant had a careful plan of pre arranged design to kill. Geralds v. State, 601 So, 2d 1157 (Fla. 1992); Gore v. State, 599 So. 2d 978 (Fla.
(1992). The evidence in the present case did reflect such plan or design.
Wuornos' victims were older white males traveling alone.
They were killed by multiple gunshot wounds. Their bodies were found in deserted areas (R P.P. 130). Pittman Pond, where Charles Carskaddon ' s body was found was overgrown. It is a lover's lane, fishing hole and dumping area (R P.P. 36). In Huff
v. State ---I 495 So. 2d 145 (Fla. 1986), this court previously found that evidence that the murders were committed ina wooded and a secluded area, that the defendant knew that he would be riding with the victims in their car on the day of the murders and that he had brought a murder weapon with him into the car supported the finding that the murders were committed ina cold, calculated and premeditated manner. Likewise, Wuornos, a hitchhiking prostitute/highwaywornan knew that she would be in some intended victim'scar that day and came armed. In Wickham v. State, 593 So, 2d 191 (Fla. 1991), the defendant hid behind a car while a woman and children lured a passing motor ist into stopping, and then shot and robbed the motor ist. This court found that the murder was cold, calculated and premeditated, even though it may have begun asa caprice and the victim was picked at random. In the present case Wuornos used prostitution or car trouble asa lure. In Swnfford v. State, 533 So. 2d 270 (Fla. 1988), evidence that the defendant shot the victim nine times, including two shots to the head at close range, and that he had to stop and reload his gun to finish carrying out the shooting was found to support the CCP aggravating factor. In the present case Mr.
Carskaddon was shot eight times by a.22 caliber revolver in the lower chest and upper abdomen (R P.P. 59-60). The bullets were fired ina tight pattern. All eight of the bullets were fired into a region that could cause death (R P.P. 60-61). Such an excessive number of shots to a vulnerable region of the body makes it abundantly clear that Wuorrios intended to leave no live witness. This factor has often been found in execution style murders. See
-1 e.g., McKinney v. State, 579 So. 2d 80, 84-85. (1991) Porter v. State, 564 So. 2d 1060, 1064 (Fla. (1990).
In Remeta v. State, 522 So. 2d 825 (Fla, 1988), this court found that evidence that the defendant planned a robbery in advance and planned to leave no witnesses supported the finding of the CCP factor. The robbery motive is apparent from the testimony of Wuornos' roommate, Tyria Moore, who indicated that Wuornos came home with Carskaddon's Cadillac and firearm (R P.P. 115-118).
His Indian blanket was taken and put in her storage room along with her collection of property from other victims (R P. P. 40).
She took his. 4 5 automatic pistol and pawned it (R P.P. 4 1 - 4 3).
Wuornos stated that she had killed the victim(s) to avoid detection so she could continue her trade (R P.P. 167 - 6 8). Her intent was made manifest in her admission against interest to Bobby Lee Cops, while fumbling in her purse for her gun, "Well, I'll just kill you like I did all them other old mother fucker."
(R P.P. 6 8). She also admitted to DK. Del Beato that she "killed them in cold blood, It (R 177). The CCP aggravator in this case was properly applied, even aside from collateral crime evidence.
This case is distinguishable from Power v. State, 605 So.
(Fla. 1993), and Gore v. State, 599 So. 2d 978 (Fla. 1992).
There is no evidence of a fit of rage in this case. There is no evidence of a plan to rape that went awry. There is no evidence of a robbery that got out of hand. There is evidence that Wuornos was in possession of the property oi her victims and that each robbery victim ended up dead. The evidence that Wuornos was a ruthless highway woman is admissible to, and does, dispel Wuornos' claim of self-defense or prostitution gone bad.
No pretense of legal or moral justification has been established. There is no pretense of justification where the @ victim has not threatened the defendant. Williamson v. State, 511 SO. 2d 289 (Fla. 1987). Although Wuornos generally discussed self-defense she waived such defense when entering a plea and provided no specific details to even justify any finding of residual doubt of guilt based on such defense in the penalty phase. There may have been a "pretense" with one or two murders but the sheer number of Wuornos' victims presents the ludicrous portrait of a serial killer continually acting in "self-defense."
The testimony of Bobby Cops reflects that Wuornos initially sought simply a ride home to Daytona Beach from Cops.
It was after Cops cashed a check that Wuornos began to proposition him so that she could quietly lure him to a remote area (R P.P. 64-68). Her mood was not the result of mental imbalance but an increasing impatience to relieve Cops of his Mooney. There was no evidence of mad acts prompted by wild emotion. Dr, Bernard did not feel that Wuornos was at any time psychotic during her offenses (R178). Dr. Epstein found no ongoing psychotic process or thought disturbance which would mitigate her responsibility to control her own behavior (R 178).
Dr. Sprehe found that Wuornos was not suffering from any major demonstrable mental or emotional problems at the time of the charge and though she had a long standing personality problem, this would not quality as being under the influence of extreme mental OF emotional disturbance. It was his opinion that she had the capacity to appreciate the criminality of her conduct and to conform that conduct to the requirements of the law (R 179).
Aside from the absence of mitigating emotional volatility also absent is any hypothesized trigger for "wild emotion."
Contrary to appellant's assertion, witness elimination testimony can be relied upon to defeat Wuornos' claim of a pretense of self-defense. The state may have waived consideration of witness elimination as an aggravating factor but that does not mean that the underlying factual scenario supporting the witness elimination aggravating factor cannot be considered for other purposes. The witness elimination factor see, Cooper v. State, and the CCP factor are not incompatible, - 492 So. 2d 1059 (Fla. 1986), and merely because the finding of one factor is not sought does not mean another aggravating circumstance cannot be found.
Wuornos ' repeated statements that she acted in self-defense were not even believed by her. The fact that everyone whose property Wuornos came into possession of was found dead ina secluded area and that Wuornos took steps to conceal the crime by covering the bodies and washing the vehicles down to remove prints surely defeat any spurious claim of self-defense and such evidence was admissible for that very purpose.
R. Committed During the Commission of a Robbery Appellant ignores the fact that Wuornos' claim of self defense in her tape recorded confession to Detective Horzepa was contradicted by her other statements (R F.P. 166). Wuornos said she killed the victims to avoid detection so she could continue her trade (R P.P. 167 - 6 8). She shot Carskaddon eight times ina vital area, far beyond what was needed to incapacitated a rambunctious "John." She was not so distraught at this "affray" that she could not think to take his.45 to pawn (R P.P. 41-43);
his Indian blanket to put in her storage bin (R P.P. 4 0); and his Cadillac to bring home before abandoning it (R P.P. 116-117).
Unless a defendant announces her intention or confessed there usually is no direct evidence of a plan to rob and kill.
There is no reasonable hypothesis that Wuornos planned only prostitution but something triggered the shooting and Wuornos took Carskaddon's property to conceal the crime and his car to get away. She over killed witheightshots. That is far beyond mere self-defense and consistent with her statement she didn't want to be detected and wanted to continue her trade. Her claim of self-defense also weakens with each robbery murder. If it occurred as an adjunct to prostitution she had a duty to give up the profession. Since a robbery accompanied each murder the only scenario is that she killed the victims to escape detection for the robbery, which is essentially what Wuornos stated. Appellee would submit to the court that the "after-thought robbery" theory is inconsistent with a claim of self-defense and certainly inconsistent in the case of multiple robbery-murders, Wuornos' identity in these robberies could properly be established by evidence of her prior robberies since they involved major highways, isolated areas, the same weapon and bullets, same modus operandi, taking of a get away- autnniwhile and personal property.
These factual similarities establish a unique crime pattern.
See, State. Ackers-, 599 So. 2d 222 (Fla. 5th DCA 1992).
This case can be distinguished from Clark. State, 609 So.
2d 513 (Fla. 1992), and Jones v. State, 580 So. 2d 143, 146 (Fla.
(1991). In Clark, the clear motive for the murder was to obtain the victim's job. In Jones, the defendant picked upra police officer's weapon after a gun battle. In both cases it is apparent that the taking of property was an after-thought.
C. Prior Capital Felony Convictions The sentencing judge found the aggravating Circumstance of previous conviction of a capital felony or felony involving the use or threat of violence. §921.141(5)(b), Fla, Stat. (1991).
This finding was based on five prior convictions for first degree murder and several counts of robbery (R P.P. 102).
It was not improper for the court to include the Volusia County murder conviction in finding this aggravating circumstance even though the state did not seek application of the factor based on this conviction. The judge was specifically advised of the existence of the judgment and sentence for murder in the first degree in Volusia County by the prosecutor, which statement went uncontradicted by the defense (R P.P. 340). Defense counsel had previously filed a motion in limine regarding "new" evidence that the first victim Richard Mallory had been convicted of a sex crime and spent ten years in prison, although at the penalty phase counsel did not have a witness in support of such conviction in order to make the claim in good faith (R 135; P.P.
5-6). The court was made aware of such judgment and it is also a matter of public record. Considerable testimony was also introduced concerning the murder of Mr. Mallory, including Wuornos' confession to the same (R P.P. 149-168). Defense counsel even argued the Mallory case, claiming that something 0 happened with Mallory, the first murder victim, that turned Wuornos into a Munster (R P.P. 180). Such judgment and conviction is also before this court in case number 79,484 and can and should be considered by the court in its review of the instant sentence. See -_-f Cabana v. Bullock, 474 U. S.
Clemons v. Mississippi, 110 S.Ct. 1441, 1446 (1990). Should the Volusia conviction or any other conviction be found inform, consideration of it in this case is harmless considering the many other convictions and aggravating evidence, CF. Preston v. State, 564 So. 2d 120 (Fla. 1990), assuming the sentencing judge considered it.
Defense counsel stipulated to the Dixie County conviction for first-degree murder (R P.P. 34; 172). This conviction is before this court in case number 81,498, in any event, and properly should be considered by this, court in its review capacity.
Defense counsel acknowledged Wuornos' prior convictions of capital offenses, which are before this court. Counsel used them as mitigation ammunition, arguing that Wuornos had four other death sentences and would serve a minimum of 100 years in prison if each was commuted to life (R P.P. 177). Only criminal activity, not convictions for that activity must occur prior to the murder for which defendant is 1ing sentenced in order to establish an aggravating circumstance. Pardo v. State, 563 So.
Considering Wuornos' numerous convictions of first-degree murder and robbery, any improper Consideration of the above two convictions could only be harmless beyond a reasonable doubt.
Bowden v. State, 588So. 2d 225 (Fla. 1991); Owen v. State, 596 Wuornos stated that she killed the victim(s) to avoid detection so she could continue her trade and such evidence would support a finding of witness elimination. CF., Remeta v. State, 522 So. 2d 825 (Fla, 1988); Lopez v. State, 536So, 2d 226 (Fla.
(1988). Thus, the sentencing court could have found an additional aggravating factor in this case. Where an aggravator is established on the record this court can consider it even if it is not considered by the trial court. DeAngelo v. State, 616 So.
2d 440 (Fla. 1993).
In the event that any of the above aggravating factors should be overturned, in light of the circumstances of this crime, the numerous remaining aggravators, and lack of mitigation, any erroneous finding of an aggravating factor was harmless error beyond a reasonable doubt. See, State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). If there is no likelihood of a different sentence, a trial court's reliance on an invalid aggravator is harmless. Burns v. State, 609 So. 2d 600 (Fla. 1992).
17 " THE FELONY MURDER AGGRAVATING CIRCUMSTANCE IS NOT
CONSTITUTIONALLY OVERBROAD.
This court has previously rejected the argument that the felony murder aggravating circumstance renders a finding of aggravation automatic. This court held that "the legislative determination that a first-degree murder that occurs in the course of another dangerous felony in an aggravated capital felony is reasonable." Mills v. State, 476 So. 2d 172, 178 (Fla.
(1985); see also, Breedlove v. State, 413 SO. 2d 1 (Fla. (1982).
The fact that there are numerous dangerous felonies does not mean that there is a lack of channel ing as to this aggravator. In Lowenfield v. Phelps, 484 U.S. 231 (1988), a death sentence was challenged on the grounds that the jury could just repeat one of its findings from the guilt phase. The court upheld the statute, reasoning that the required narrow ing function had occiirred at the guilt phase, Certiorari has been dismissed in Tennessee v.
Middlebrooks as improvidently granted. 126 L.Ed.2d 555 (1993).
There are no federal decisions contrary to this court's position.
VI. THE TRIAL COURT DID NJT FAIL TO FIND AND WEIGH MITIGATING
CIRCUfisT~CUES.
Appellant first complains that the trial court failed to find and weigh the mitigating circuinstance that "the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance." 8921.141(6)(b), Florida Statutes (1991).
In the penalty phase defense counsel referred the court to doctors' reports in the court file (R P.P. 174). Dr. Krop had been originally appointed to provide confidential advice to the defense. HE saw Wuornos on January9, 1992. He diagnosed her as having Borderline Personality Disorder. That he later found on July 10, 1992, that she had decvmpensated during incarceration and diagnosed her as suffering at that time from a delusional disorder, persecutory type (R 176) adds nothing new or relevant to her mental status in June, 1990, at the time of the murder.
Thus, the most Dr, Krop had to say about Wuornos at the time of the murder was that she had a Borderline Personality Disorder.
Dr. Del Beato's diagnostic impression of Wuornos was that of Antisocial/Borderline Personality (R177). Dr. Epstein also indicated that she had a personality disorder (R 178). Dr.
Sprehe also found that Wuornos had a long standing personality problem (R179).
Dr. Del Beato found that Wuornos was not psychotic.
Wuornos revealed no trigger to him that would have set her off at the time of the murder of Mr. Carskaddon. She never indicated that her action was even the result of a volatile mental or emotional state and, in fact, indicated to the contrary, that she killed "them" in cold blood (R 177).
Dr. Bernard did not feel that Wuornos was at any time psychotic during her offenses (R 178).
Dr. Epstein determined that Wuornos' reasoning and judgment were not significantly compromised by any organic mental defect, insGfficiency, illness or transient emotional state. We found no indication of a thought disorder. She recalled events in detail and her consciousness did not appear cluded during the time of the murders. She acknowledged she had done wrong by killing other human beings. There was I-IC-' widence of an underlying schizophrenic disorder. Dr. Epsteiri further reported that Wuornos' "thinking and reasoning abilities do not appear to reflect any pathological processes but are seen as that of an immature or unsophisticated individual." Dr. Epstein found no evidence of any significant mental defect or organic deterioration. Dr, Epstein concluded that "there appears to be no on-going psychotic process or thought disturbance which would mitigate her responsibility to control her own behavior (R178).
Based on his review of materials Dr. Sprehe concluded within a reasonable medical probability that Wuornos was not suffering from any major demonstrable mental or emotional problems at the time of the charge and though she had a long standing personality problem, this would not quality as being under the influence of extreme mental or emotional disturbance (R It is the trial court's duty to decide if mitigators have been established by competent, substantial evidence and to resolve conflicts in evidence in the punishment phase of a capital murder trial. Johnson v, State, 608 So. 26 4 (Fla.
(1992). A mitigating circumstance against the death penalty must be reasonably established by the greater weight of the evidence.
Nibert v. State, 574 So. 2d 1059 (Fla. 1990). Mitigatin.g evidence must be weighed in the balance when the record dis closes it to be both believable and uncontroverted. Santos v. State, 591 So. 2d 160 (Fla. 1991). The decision as to whether a mitigating circumstance has been established is within the trial Court's discretion and reversal is not warranted simply because the appellant draws a different conclusion. Preston v. Stat_, 607 So. 2d 404 (Fla. 1992). The mental or emotional disturbance mitigator in this case has not been established by competent, substantial evidence. No evidence was presented to demonstrate @ any casual connection between Wuornos ' personality disorder and the murder of Mr. Carskaddon. Nothing in the record demonstrates that such disorder would lead to mental or emotional disturbance or that such disturbance even occurred. That it occurred at all is controverted by Wuornos' statement that she killed her victims in cold blood and by the reports of the psychologists indicating the absence of any on-going psychotic process or thought disturbance which would mitigate her responsibility to control her behavior and that the personality disorder would not quality her as being under the influence of extreme mental or emotional disturbance. The mitigator is properly not applied where there is equivocation and reservation in testimony concerning a defendant's mental state. Sanchez-Velesco v. State, 570 So. 2d 908 (Fla. 1990). Evidence is only mitigating if in fairness or in the totality of a defendant's life or character, it may be considered as extenuating or reducing the degree of moral culpability for the crime committed. Wickham v. State, 593So.
26 191 (Fla. 1991). No evidence having been established that Wuornos acted under mental or emotional disturbance, the bare existence of a personality disorder unrelated to the act of murder would he worth next to nothing even considered ina non statutory manner and would hardly have weighed in the sentencing balance. Any error in ~: nt so considering such evidence is harmless beyond a reasonable doubt. See, - -~ Stewart v.
State, 620So. 2d 177 (Fla.. 1993).
It is not true as counsel argues that evidence that Wuornos suffered from a mental or emotional disturbance was not in any 0 way refused by the evidence at the penalty phase. The testimony of Lori Groddy shows little more than Wuornos was an ungovernable youngster, as does the hearsay testimony of Tyria Moore concerning Wuornos' history. That Wuornos was generally easily angered is not transfer able to the ultimate act of murder, without more. It is also clear that WUOKIIOS' annoyance at Bobby Cops stems from the fact that he had thwarted her robbery plan and she would not get her hands on his Mooney. While Moore may know what Wuornos' alcohol consumption was in general and while in Moore's presence no evidence was adduced as to what she consumed while working on the road asa prostitute. That Wuornos had not acted under mental or emotional disturbance is clear from her own statement that she killed the victims in cold blood- Such claim is also refused by evidence that Wuornos had killed other such victims pursuant to a continuing robbery motive or scheme.
Appellant next complains that the trial court did not consider evidence of her troubled childhood. As on appeal, Wuornos' childhood history was largely offered by the defense to show the early existence of personality disorder. Her childhood history reveals no trauma or abuse that would rise to the level of a mitigating factor. The history, itself, reveals only an ungovernable youth who refused all efforts aimed at reform.
Moreover, Wuornos failed to show that any alleged childhood trauma was relevant to her character or the circumstances of the murder so as to afford some basis for reducing the sentence of death. - Cf. Rogers v. State, 511 So. 2d 526 (Fla. 1987). As was the case in Lara v. State, 464 So. 2d 1173 (Fla. 1985), Wuornos' actions in committing the murder were not demonstrated to be significantly influenced by her childhood experience. While her troubled background and lack of education could arguably be said to have led her to prostitution, the same does not hold for robbery/murder when she already had an illegal and fast way to make Mooney. Had this factor been separately considered, the sentencing outcome would hardly have changed. State. DiGuilio, Appellant also complains of the trial court's failure to consider a history of alcohol and drug abuse. Again, this evidence was largely offered in support of a claim of personality disorder. In any event, the evidence was insufficient to establish beyond mere implication that Wuornos suffered from drug or alcohol dependency. See, Hardwick v. State, 521 SO. 2d 1071 (Fla. 1988). There was no evidence at all that Wuornos was drunk at the time of the shooting or that her control over her behavior was reduced by alcohol abuse. Again, separate consideration of such evidence would not mitigate the aggravating circumstances.
CF. Tompkins v. Duqqer, 549So. 2d 1370 (Fla. 1989).
Appellant next complains that the trial court erred in not finding the statutory mitigator that "the capacity of the defendant to appreciate the criminality - uf her conduct or to conform her conduct to the requirements of law was substantially impaired." The psychological reports and evaluations of Wuornos are far less than unequivocal as to t,, is mitigating factor and justify the refusal to find it. cf. Carter v. State, 576 SO. 2d 1291 (Fla. 1989). In fact, no testimony or evidence was given that Wuornos lacked the ability to conform her conduct to the requirements of law or that she did not know that killing the victims was wrong and the trial court was not required to find that statutory mitigating circumstance existed. - See, Pardo v.I" State, 563 So. 2d 77 (Fla. 1990). The evidence, to the contrary, supports a refusal to find this mitigator. She indicated to Dr.
Epstein that she had done wrong by killing her victims (R 178).
Defense counsel indicated that seven or eight doctors talked to Wuornos over the last two years and they all indicated that she knew right from wrong (R P.P. 16). Based on the materials he had reviewed, Dr, Sprehe concluded that Wuornos did have the capacity to appreciate the criminality of her conduct and to conform it to the requirements of the law (R179). Her efforts at concealment in this case certainly indicate that Wuornos appreciate the criminality of her conduct. The killing was done ina remote area. She covered the body of Mr, Carskaddon witha green electric blanket and pulled and cut weeds and brush to put on top to camouflaged it (RP. P. 36). That Wuornos is able to conform her conduct to the requirements of the law is evidenced by the fact that she had previously been convicted of robbery witha deadly weapon in April 1982 and did not engage in such activity again until the robbery/murder of Kicliard Mallory in 1989. S. EX.
Defense counsel argued in mitigation that the defendant demonstrated contrition and cooperate by confessing and trying to assist the police in locating the body of her seventh victim.
The court found that this circumstance was not proved. The court stated that "confessing to crimes and assisting in the location of the body of a victim does not necessarily demonstrate contrition. The rambling comments of Miss Wuornos at the beginning of this sentencing proceeding on January 25, 1993, indicated affirmatively that she feels no contrition for this crime." (R 104-105). Cooperating with the police standing alone is not in and of itself mitigating for it may be done fora number of reasons, many of which could be self-serving or not at all altruistic. The intent of the defendant must be examined.
Wuornos confessed but justified her actions on a legally insufficient claim of self-defense and had nothing to lose, by her way of thinking, in directing police to the murder weapon.
Moore also gave such directions. The body of the seventh victim was never found and Wuornos did not have much to lose by getting out of confinement for the day especially when she already had been sentenced to death. Asshe was given to saying "How many times can they kill me?" The trial court was justified in finding that this evidence was not mitigating and it would have made no difference in the sentencing matrix, in any event.
Religiosity in prisoners who have been in serious trouble is not unusual (R 177). Her belief seems far less than genuine.
Although she requested a death sentence she proclaimed her innocence (R P.P. 23). From the record in this case it is clear that she plans a frontal attack on post conviction. Her attitude is wholly inconsistent witha genuine conversion which would involve at the least confession and repentance. This was not hypothesized in mitigation below for good reason.
Judge Cobb was evidently of the opinion that one should pay for one's misdeeds. He viewed Wuornos' previous capital and.
violent felonies as aggravating and not mitigating, What Wuornos wants considered in mitigation, her previous murders, would be tantamount to a statement that this victim is less important than the others. This "why-bother" theory is a mini-version of the debate over capital punishment versus incarceration in the first place. Jones v. State, 569 So. 2d 1234, 1239-40 (Fla. 1990), stands only for the proposition that a defendant is entitled to argue that he would be removed from society fora long period should he receive life sentences on multiple murders. Nothiriq compels the judge to find this as mitigating in the case of numerous serial murders and the failure to find such mitigation is not an abuse of discretion. If this were, indeed, mitigating, the serial killer would benefit by the sheer number of his victims. Since Wuornos plans a 3.850 attack to try to over turn her Volusia County death sentence at the least, depending on such sentences for mitigation is particularly inappropo.
Any and all possible errors in the finding or weighing of mitigating factors is harmless beyond a reasonable doubt considering the weak nature r3f sized mitigation and the compelling nature of aggravating factors, particularly numerous prior capital felonies. State --I._^-._-----_.I-.- v. DiGuilio, 491 So. 2d 1129 (Fla.
KII. THE DEATH SENTENCE IN THIS CASE 1s PROPORTIONATE TO OTHER-
DEATH SENTENCES IMPOSED AND AFFIRMED BY THIS COURT.
This case is among the most aggravated of Florida murder cases. All of the aggravating circumstances found by the trial court were proven beyond a reasonable doubt as separately argued herein. Even assuming that the state proved "only" three prior convictions for capital felonies, not to mention the 1982 armed robbery, as appellant argues, that in no way eliminates or diminished this aggravator. All that is needed is one prior conviction to establish the aggravator of a prior capital offense. The trial court assigns the relative weight to this factor. See, Slawson v. State, 619 So. 2d 255 (Fla. 1993).
Naturally, even three prior capital felonies would make this aggravator extremely weighty, a fact overlooked by appellant in her hypothetical sentencing matrix. The cases cited by appellant are inapposite. The death sentence in this case is supported by more than one aggravating factor. The cited mitigators were either not properly found in this case, as argued elsewhere herein, or not offered. The mitigation argued on appeal is extremely weak in nature and would not off set the aggravating factors in this case, even as limited by appellant's theory.
In Duncan v. State, 619 So. 2d 279 (Fla. 1993), this court found that the death penalty was not disproportionate to the offense where the defendant had fatally stabbed his fiancee, in light of his prior murder conviction and failure to establish the mitigating factors of int luenr ~ n f alcohol and mental disturbance. In Clark. State, 613 So. 2d 412 (Fla. 1992), this court found tha he death sentence was not disproportionate where there were only two aggravators, including a prior conviction of first degree murder and no mitigators. In Wickham
v. State, 593 SO. 2d 191 (Fla. 1991), this court held that a death sentence was not disproportionate for a defendant who planned and executed a roadside ambush designed to lure the victim, who believed he was helping a stranded woman and children, despite the presence of some mitigating evidence. ~ See, also Cook v. State, 581 SO. 2d 141 (Fla. 1991). This case is very similar to Pace v. State, 596 So. 2d 1034 (Fla. 1992). In that case there were aggravating circumstances of a previous conviction of a felony involving violence, committed on parole I and committed while engaged in robbery, This court indicated that even if one or more non statutory mitigating factors were wrong fully rejected, death was still the appropriate penalty for a defendant convicted of the armed robbery and first-degree murder of a taxi cab driver.
CONCLUSION
Based on the foregoing arguments and authorities, appellee request this court affirm the judgment and sentence of the trial court in all respects.
Respectfully submitted,
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
ASSIST ~ATTORNEY ~ GENERAL Fla. Bar #302015 210N. Palmetto Ave.
Suite 447
Daytona Beach, FL 32114
(904) 238-4990
COUNSEL FOR APPELLEE
CERTIFICATE OF SERVICE
I HEREBY CERTIFYthatatrue and correct copy of the above and foregoing has been furnished by W; S. Mail to Paul C. Helm, Assistant Public Defender, P. 0, Box 9000, Drawer PD, Bartow, Florida 33830, && day of March, 1994.
Supreme Court o€ flortba No. 8 1, 466
AILEEN C. WUORNOS,
Appe 1l ant,
STATE OF FLORIDA,
Appellee.
[September 21, 19951
PER CURIAM.
WE have on appeal the judgment and sentence of the trial court imposing thedeathpenalty upon Aileen C. Wuornos. We have jurisdiction. Art. V, 5 3 (b) (11, Fla. Const.
Charles E. Carskaddnn waslastseenalive on May 31, 1990, when he left home on atrig to Tampa in his Cadillac. His body was found in Pasco Court~yon (June 6, 1990, in secluded area.
The remains were covered by an electric blanket and a large amount of uprooted tall grass. His vehicle and its contents were found ina separate location on June 6 or 7, 1990. At this time the car apparently was red-tag ged by the Florida Highway Patrol and ultimately was towed away on June 13. Sheriff ' s officers later recovered it.
The body was badly decomposing when found. The medical examiner determined that Carskaddon had died of gunshot wounds.
Eight ". 2 0 caliber" bullets were recovered from the body, and the examiner testified that all eight bullets were in region that could cause death. She could not say which was the fatal bullet.
The true height and weight of Carskaddon at the time of death also could not be determined due to decomposition.
Witnesses had seen Aileen Carol Wuornos in possession of Carskaddon's car. Wuornos had pawned a gun identified as belonging to Carskaddon. She also faced charges in several similar murders involving men found dead along the highways of the Central Florida region.
At trial, Wuornos indicated her desire to plead guilty. She complained of unjust pretrial publicity and continued to claim she had killed all of her victims in self-defense. The trial court explained that a guilty plea would eliminate any possibility of relying on self-defense, but Wuornos said she wanted to plead guilty anyway. She asserted she could not get a fair trial. The trial court accepted Wuornos' plea as knowing, intelligent, and voluntary with assistance of competent counsel.
A July 14, 1992, date then was set for the penalty phase of trial.
When that date arrived, defense counsel presented a letter from Ds. Harry Krop stating that Wuornos was delusional and incompetent to proceed with trial. The trial court then ordered Wuornos evaluate by Dr. Donald Delbeato and Dr. Joel Epstein.
These last two found that Wuornos was competent to stand trial but that she suffered from a personality disorder. Based on these conclusions, the trial court found Wuornos competent to proceed.
Ina later hearing, Wuornos informed the trial court that she intended to waive her right to a penalty-phase jury, the right to present mitigating evidence, and her right to be present. The trial court asked defense counsel what mitigating evidence would have been presented. Defense counsel indicated that there would have been arguable evidence of borderline and antisocial personality disorders, emotional distress, impaired capacity, a color able claim of self-defense, and various non statutory factors.
Nevertheless, Wuornos continued to assert her desire to waive presentation of mitigating evidence. She explained that she already had five death sentences and complained that male serial killers only received about two death sentences. She said she didn't care anymore and just wanted to return to death TWO.
Wuornos also rejected the trial court's recommendation that she allow the presentation of mitigating evidence. Based on these factors, the trial court found that Wuornos had waived her right to present mitigation, to have a trial by jury, and to be present:
during the penalty phase. The defense also waived any objection to the presentation of collateral crimes evidence. In aggravation, the State presented detailed information about several of the other murders and felonies for which Wuornos had been convicted.
The State urged the trial court to find three aggravating factors: prior violent felonies, murder committed during a robbery, and cold and calculated premeditation. The State waived pecuniary gain and witness elimination as possible aggravators.1 Defense counsel presented no evidence, in keeping with his clients wishes. But he did make closing argument urging the trial court to consider the evidence already in the record of borderline and antisocial personality disorders, a troubled youth, abuse of drugs and alcohol, being lured into prostitution at an early age, and other factors.
At sentencing, Wuornos complained vehemently and profanely about mistreatment. The trial court ultimately threatened to For this reason we reject the States request that WE consider witness elimination notwithstanding the trial court's penalty-phase findings. The State relies on DeAnaelo v. State, 616 So. 2d 440 (Fla. 1993), on this point, but we find that opinion inapposite. In DeAncrelo, the State actually filed a cross-appeal challenging the failure of the trial court to find an aggravator. rd. at 442. No such cross appeal was filed here because the State obviously failed to preserve any error.
bind and gag her unless she remained quiet, but she was permitted to address the court. In her statement, Wuornos again complained about the sensationalized publicity surrounding her case and asserted she had acted in self-defense.
The trial court found all three aggravating factors asserted by the State. AS to mitigating evidence, the trial court found that none existed, either statutory or non statutory, and that even if mitigators existed, the case for mitigation was minimal in comparison with the case for aggravation. The trial court specifically rejected wuornos' claim of self-defense, then sentenced her to death.
As her first issue, Wuornos argues that her guilty plea was improperly taken by the trial court below. It is true that Wuornos failed to move to withdraw her plea, but the failure does not work a procedural bar in the context of a death-penalty case.
As we have noted elsewhere, this Court is absolutely required to review the propriety of the judgment of conviction in dcathpenalty cases, and that duty cannot be defeated by the procedural bar that would apply in judgments resulting in lesser sentences.
Koenicr v, State, 597 So. 2d 256 (Fla. 1992). Accordingly, we proceed to the merits of this issue.
We have read the colloquy between Wuornos and the trial court resulting in the acceptance of the guilty plea, and we agree with Wuornos that it failed to meet the standards set by Florida Rule of Criminal Procedure 3.172. This resulted partly from the somewhat combat ive responses Wuornos herself gave to the court after being placed under oath,2 and her continued and contradictory assertions that she (1) was guilty and wanted to abandon her right to trial, and (2) that she acted in self defense in the killing. In particular, the colloquy failed to inform Wuornos of mandatory minimum and maximum penal ties, some of the specific trial-related rights she was waiving,4 her continuing right to collateral review of the conviction,5 the possibility of perjury charges for untruthful statements to the court,6 and the possibility of deportation if she were not a United States citizen.I The better procedure is for the trial court to use rule 3.172 asa check list during the plea colloquy, and we strongly encourage judges to follow this practice. Nevertheless, the rule Among other things, Wuornos complained bitterly about an alleged inability to obtain a fair trial in Florida, about press accounts of the killings, and about a movie portray ing the various killings in which she was implicated. The trial court noted at one point that Wuornos was "making it very difficult if not impossible for this court to accept your plea."
Fla. R. Crim. P. 3. 172 (c) (1).
Fla. R. Crim. P. 3. 172 (c) (3).
See Fla. R. Crim. P. 3.172(c) (4).
Fla. R. Crirn. P. 3. 172 (c) (6).
S.e.e Fla. R. Crim. P. 3. 172 (c) (8). While it is true Wuornos was a citizen, the rule nevertheless requires that the trial court inform every defendant of the possibility of deportation if they lack citizenship. Id.
itself states:
Failure to follow any of the procedures of this rule shall not rendera plea void absent a showing of prejudice.
Fla. R. Crim. P. 3. 172 (i). Florida case law is in accord. Judge Ervin of the First District correctly noted in Fuller v. State, 578 So. 2 d 887, 889 (Fla. 1st DCA 1991), quashed on other arounds, 595 So. 2d 20 (Fla. 1992):
In the absence of an allegation of prejudice or manifest injustice to the defendant, the trial court's failure to adhered to rule 3.172 is an insufficient basis for reversal.
In sum, there is no possibility of error absent an allegation and showing of prejudice.
We are mindful of the requirements set by Baykin v. Alabama, 395U.S. 238, 89s. Ct. 1709, 23 L. Ed. 2d 274 (1969), which was one reason rule 3.172 was developed and promulgated. In Boykin, the United States Supreme Court quoted with apparent approval the following statement of the Pennsylvania Supreme Court:
A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences.
at244n. 7, 89 S. CT. at1713 (quoting Commonwealth ex rel.
West v. Rundle, 428 Pa. 102, 105-06, 237 A. 2 d 196, 197-98 (1968)). While we comm end His language to the trial courts of Florida, we nevertheless must recognize that it is not touched in terms of man date but of suggestion. Moreover, the facts in Boykin were substantially different from those we face today: In Boykin, the defendant, an Alabama black man, was facing the death penalty not for murder but for several acts of common law robbery occurring in 1966 - - a draconian penalty that may well have influenced the Boykin Court.8 Moreover, the record indicated that Mr. Boykin's plea was accepted without any inquiry as to whether he realized he thereby faced the death penalty, nor was there any indication defense counsel had so informed Mr. Boykin.
Wuornos' case is quite different. A detailed factual basis to accept the plea was provided by the State without objection from Wuornos, and it clearly met the requirements of Rule 3.172(a). The colloquy between the trial court and Wuornos is not a model, but it nevertheless is apparent from the overall thrust of the conversation that Wuornos knew the import of her plea. The fact that a defendant is combat ive or makes apparently contradictory assertions is not itself sufficient reason to reject the plea: We recognize that defendants unschooled in legal nice ties may well misuse legal terms of art such as "self defense, ii as Wuornos did here, and may engage in conduct that There can be no question that, under present-day law, Mr.
Boykin's death sentences would have been unconstitutional on other bases apart from the Supreme Court's holding.
does not com port with usual. courtroom standards. This conclusion is only underscored by the defense attorney's comments made in the presence of Wuornos and without contradiction by her:
Ms. Wuornos understands specifically that she's giving up the right to claim self defense. She understands she's giving up the right to claim involuntary intoxication asa defense, and she understands that she's giving up the right to insanity at the time, the offense asa reason. She understands those things. If you care to question her on it, you will find that she understands exactly what is happening here and she is competent to make these decisions.
I can represent to this court this woman is not insane. She understands what's going on and she is in full control of her mental faculties.
Wuornos herself made the following remarks under oath:
I understand everything, and as far as I'm concerned, I'm tired of the re-electorial scandals of trying to take these cases to court. And I've got three death sentences already that I'm not going to get appealed I got one that may be appealed, very good appeal, and this one is silly, and I just don't - - I know everything. Guilty.
In addition, the record before us contains a detailed form signed by Wuornos, her counsel, and the trial court. This form clearly meets all the requirements imposed by law, and the trial court upon inquiry established that Wuornos knowingly and voluntarily signed it. In addition, the trial court on the record asked Wuornos to initial several interlineations made in the document, which Wuornos did.
The obvious evil addressed by the United States Supreme Court in Boykin was of poorly advised defendants unwittingly subjecting themselves to death penal ties by a guilty plea, or of facts that simply do not merit a death penalty. We believe that this is the type of "prejudicev'contemplated by rule 3.172(i).
Here, however, the record substantially and competently supports the trial court's finding of a basis to accept the plea. Wuornos herself indicated she was aware of the penal ties she faced, knew the rights she was abandoning, and voluntarily had agreed to plead guilty. Although the procedures used below were not the most desirable, they nevertheless did not prejudice Wuornos within the meaning of rule 3. 172 (i). The record refuses any contention she was poorly advised or unwittingly subjected herself to the death penalty, and the facts here are of a kind that would warrant the death penalty ina full trial.'
Accordingly, the deviation from the rule did not rise to the level of error.
As her second issue, Wuornos argues that her waiver of rights in the penalty phase should be invalid for the reasons stated in Justice Barkett's dissent in Ilamblen v. State, 527 So.
2d 800, 805-09 (Fla. 1988) (BarketL, J., dissenting). We We stress, however, that Boykin v. Alabama, 395 U.S. 238, 89 5. Ct. 1709, 23 L. ED. 2d 274 (19691, effectively presumes prejudice if the record is wholly silent as to the basis of the plea. The Boykin majority read in light of the dissent indicates that, on this question, appellate courts may not look beyond the four corners of the trial record. Thus, a remand for an evidentiary hearing is not a possibility.
disagree. A majority of this Court has never embrace Justice Barkett's views. TO the contrary, we have held that "[alt the trial level, the defendant is entitled to control the overall objectives of counsel's argument," including a waiver of the right to present a case for mitigation. Far v. State, 656 So.
2d 448, 449 (Fla. 1995). We do note that the trial court did not order a pre sentence investigation here. While we have encouraged such a practice, we have not required it. Id. Therefore, we find no error on this point.
Third, Wuornos contends that her behavior during the penalty phase was sufficiently r'irrational'lChat the trial court erred in not ordering a new competency evaluation. We have read the record of the proceeding and do not find that Wuornos conduct reached a level that should have triggered renewed evaluation.
Wuornos' statements, while profane and disruptive, nonetheless were rationally organized toward a goal of convening several impressions: that she was being mistreated by guards, that she could not receive a fair trial, and that she had been unfairly subjected to more trials than male serial killers such as Ted Bundy, among other matters. It is clear from the overall exchange that, although angry, Wuornos was capable of understanding what was happening and of inter acting ina meaningful way in the proceedings. Only if she showed a lack of such capacity, we believe, would the trial court be obligated to order a renewed competency evaluation.
As her fourth issue, Wuornos argues that the State failed to prove the aggravating factor of cold, calculated premeditation.
We agree with Wuornos that the trial court relied entirely upon collateral crimes evidence to prove the existence of this factor when the sole relevance of this evidence was to establish bad character or propensity. Finnev v. State, 20 Fla. L. Weekly S401, S404 (Fla. July 20, 1995). The trial court stated as much in its sentencing order:
Charles Carskaddon was not the first of Miss Wuornos' murder victims. The evidence indicates that by the time Miss Wuornos killed Mr. Carskaddon she had a well established pattern of selecting white, middle-aged male victims, luring them to a secluded area with promises of sex, shooting them multiple times in the torso, and stealing their Mooney, car and all other personality [sic] in their possession. The theft of Mr. Carskaddon's property did not occur spontaneously following the killing.
Miss Wuornos carefully and calculatingly selected this victim, stalked him and lured him to a secluded area with the intent of killing and robbing him.
Apart from the improper use of collateral crimes evidence to prove bad character or propensity, nothing in the record supports the last two sentences of this quotation. There were no witnesses to the killing of Carskaddon, and Wuornos' confessions in themselves do not support the existence of cold, calculated premeditation. Accordingly, the trial court erred in finding this aggravating factor. We will evaluate the effect of the error below, in our consideration of mitigating evidence.
Fifth, Wuornos contends that the felony-murder aggravator fails to sufficiently narrow the class of death-eligible defendants and duplicates elements of first-degree murder. This argument is without merit. Johnson v. St ate, 20 Fla. L. Weekly 5343 (Fla. July 13, 1995); Johnson v. State, 20 Fla. L. Weekly 5347 (Fla. July 13, 1995).
As her sixth issue, Wuornos alleges that the trial court erred in failing to find and weigh a variety of mitigating factors. In its findings, the trial court concluded that no mitigators existed and that, even if they did, they would not outweigh the case for aggravation. We must begin by noting tha Wuornos refusal to present a case for mitigation constitutes an admission of her belief that no such case exists. This concession is not necessarily binding on the trial court, especially where the record includes uncontroverted facts that unquestionably constitute mitigating evidence. Nevertheless, Wuornos' actions effectively weakened any case for mitigation because they tended to create a conflict in the record properly left to the finder of fact to resolve. To this extent we find no error in the trial court's actions.
Nevertheless, we cannot overlook the fact that the reports by psychological experts who examined Wuornos all agree on one point: that she suffer a personality disorder. Moreover, the State itself notes on appeal that Wuornos' disruptive conduct during the proceedings below was consistent with the existence of such a disorder. For this reason, we believe the trial court erred in not expressly finding and weighing Wuornos personality disorder." However, the record is conflicting on the true extent of this disorder, which would justify the finder of fact in also concluding that Wuornos' disorder was not significant.
We now must consider whether the errors in finding and weighing aggravators and mitigators require remand. Although this Court does not itself reweigh the evidence on appeal, we nevertheless apply the principle of harmless error where there is no possibility the errors contributed to the outcome. Remand is necessary only where we find that the errors reasonably may have contributed to the outcome.
Except for Wuornos refusal to present a case for mitigation, we might be inclined to order a remand here.
However, Wuornos effectively conceded her belief that no case for mitigation exists. Two strong aggravators remain and clearly were valid," whereas the mitigating evidence of her personality disorder was at best minimal. There is no conclusion other than that the errors here did not contribute to the outcome.
lo The trial court may have tacitly considered this mitigating factor in its alternative holding as to mitigation.
l1 We reject Wuornos' contention that the "murder committed in the course of a robberyiifactor was not properly established.
The theft of Carskaddon's gun and automobile created a question for the finder of fact, which has been resolved against Wuornos.
We expressly note that the trial court's findings as to this factor did not rely on collateral crimes evidence from the other murder to prove the factor, which would have been improper.
Accordingly, the error was harmless beyond a reasonable doubt.
State. DiGuilio, 491 So. 2d 1129 (Fla. 1986).
Seventh, Wuornos argues thatdeathis not proportion ate in this instance. We find this argument without merit. Wuornos
v. State, 644 So. 2d 1012 (Fla. 1994), CERT. denied, 115 S. Ct.
1708, 131 L. Ed. 2d 568 (1995); Wuornos v. State, 644 So. 2d 1000 (Fla. 1994), cert. denied, 115 S. Ct. 1705, 131 L. ED. 2d 566 (1995). Having independently reviewed the record for other errors and finding none, the judgment and sentences are affirmed.
It isso ordered.
CRIMES, C.J., and OVERTON, SHAW, KOGAN and INSTEAD, JJ., concur.
HARDING and WELLS, JJ., concur as to the conviction and concur in result only as to the sentence.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
An Appeal from the Circuit Court in and for Pasco County, Wayne L. Cobb, Judge - Case No. 9 1 - 01232 - CF - A - ES James Marion Doorman, Public Defender and Paul C. Helm, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant Robert A. Butterworth, Attorney General and Margene A. Roper, Assistant Attorney General, Daytona Beach, Florida, for Appellee
FILED
SID J. WET
NOV 28 1994
IN THE SUPREME COURT OF FLORIDA
AILEEN CAROL WUORNOS,
Appellant,
V. CASE NO. 81,498
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE THIRD JUDICIAL CIRCUIT,
IN AND FOR DIXIE COUNTY, FLORIDA
INITIAL BRIEF OF APPELLANT
NANCY A. DANIELS
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
DAVID A, DAVIS
ASSISTANT PUBLIC DEFENDER
LEON COUNTY COURTHOUSE
FOURTH FLOOR, NORTH
301 SOUTH MONROE STREET
TALLAHASSEE, FLORIDA 32301
(904) 488-2458
ATTORNEY FOR APPELLANT
FLA. BAR NO. 271543
TABLE OF CONTENTS
PAGE (S 1
TABLE OF CONTENTS i TABLE OF CITATIONS ii ISSUE I
THE COURT ERRED IN FULLY DETERMINING THE
VOLUNTARINESS OF WUORNOS' PLEA WHEN HER TRIAL
ATTORNEY CONFESSED THAT HE LACKED THE EXPERIENCE
TO TRY A CAPITAL CASE, AND THAT IF WUORNOS HAD
INSISTED ON GOING TO TRIAL HE WOULD HAVE MOVED TO
WITHDRAW AS HER COUNSEL, A VIOLATION OF HER
FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT
ISSUE 11
AILEEN WUORNOS DID NOT INTELLIGENTLY AND
VOLUNTARILY PLEAD GUILTY TO FIRST DEGREE MURDER
AND ARMED ROBBERY IN VIOLATION OF HER FIFTH,
ISSUE I11
AILEEN WUORNOS WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED HER BY THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF
ISSUE IV
THE COURT ERRED IN FINDING THAT WUORNOS COMMITTED
THE MURDER INA COLD, CALCULATED, AND
PREMEDITATED MANNER WITHOUT ANY PRETENSE OF MORAL
OR LEGAL JUSTIFICATION BECAUSE IT WAS EITHER NOT
SO OR HER CLAIM OR SELF DEFENSE PRESENTED AT LEAST
A PRETENSE OF LEGAL JUSTIFICATION, A VIOLATION OF
ISSUE V
THE COURT ERRED IN INSTRUCTING THE JURY ON THE
COLD, CALCULATED, AND PREMEDITATED AND AVOID
LAWFUL ARREST AGGRAVATING FACTORS BECAUSE THE
INSTRUCTIONS WERE UNCONSTITUTIONALLY VAGUE, IN
VIOLATION OF THE DEFENDANT'S FIFTH AND FOURTEENTH
ISSUE VI
THE COURT ERRED IN IGNORING OR REJECTING THE
ABUNDANT MITIGATING EVIDENCE WUORNOS PRESENTED,
IN VIOLATION OF THE DEFENDANT'S EIGHTH AND
ISSUE VII
THE COURT ERRED IN IGNORING DR. DELBEATO'S
TESTIMONY THAT WUORNOS HAD AN EXTREME EMOTIONAL
OR MENTAL DISTURBANCE AT THE TIME OF THE MURDER,
A VIOLATION OF HER EIGHTH AND FOURTEENTH AMENDMENT
ISSUE VIII
THE COURT ERRED IN FINDING THAT WALTER ANTONIO
PARTICIPATED IN THE ACTS LEADING TO HIS DEATH,
A VIOLATION OF WUORNOS' EIGHTH AND FOURTEENTH
TABLE OF CITATIONS
CASES PAGE(S)
Boykin v. Alabama, 395 U. S. 238, 89 S.Ct. 1709, Hardwick v. State, 461 So. 2d 79 (Fla. 1984) 35f37 Jackson. State, 1 9 Fla. L. Weekly S215 (Fla.
-iii- Thornburg V. State, 591 So. 2d 1121 (Fla. 1st DCA Williams v. State, 365 So. 2d 460 (Fla. 1st DCA
STATUTES
RULES
OTHER AUTHORITIES
See Carlton Smith & Tomas Guillen, The Search for See Coin A. ROSS, et. al., Dissociation and Abuse Eng Multiple-Personality Patients, Prostitutes, and erotic Danct Dancers, 4 1 Hosp. & Corn. Psychiatry 328 See, David Finkelhor, The Trauma of Child Sexual Abuse, in Lasting Effects of child Sexual Abuse, Deborah Cameron & Elizabeth Frazer, The Lust to Kill:
A Feminist Investigation Of Sexual Murder 120-162 (1987) 32 Dirk de Schampheleire, MMPI Characteristics of Professional Prostitutes: A Cross-cultural replication, See Harold R. Hallman & Sharon Pines, Buying Sex:
The Phenomenology of Being A John, 4 Deviant Behav.
John Briere and Marsha Runtz, Research with Adults molested as Children, in Lasting Effects of Child Sexual Abuse, Gail E. Wyatt and Gloria J. Powell, Lisa Faye Kaplan, Someone is Killing U.S. Hookers, See e. g., Matthew Freund et al., Sexual Behavior of Resident Street Prostitutes with their Clients in Michael Hedges, Prostitutes, Psychopaths Too Often See Mini Silbert & Yah Pines, Occupational Hazards of Street Prostitutes, 8 Crim. Just. & Behav. 395 Mini Silbert & Ayala M. Pines, "Entrance into Sam Janus, The Death Of Innocence: How our Children are Endangered by the New Sexual Freedom (William Borrow: New York, 1981) p.78
IN THE SUPREME COURT OF FLORIDA
AILEEN CAROL WUORNOS,:
Appellant,
V. CASE NO. 81,498
STATE OF FLORIDA,
Appellee.
INITIAL BRIEF OF APPELLANT
PRELIMINARY STATEMENT
Aileen Wuornos either pled guilty to or was found guilty of murdering six men and sentenced to death. This appeal is her last one, and this court has affirmed four of her convictions and sentences of death. Wuornos v. State, 19 Fla.
I;. Weekly S215 (Fla. 1994); Wuornos v. State, 19 Fla, L. Weekly S503 (Fla. 1994). Besides this case, she has one other appeal pending, which this court has heard oral arguments.
After Wuornos' first trial, Steven Glazer represented Wuornos in the remaining five cases. In each of them, she pled guilty.
Margaret Baldwin, an Associate Professor of Law at the Florida State University College of Law and member of this courts Gender Bias Study Commission, provided assistance in writing Issues IV and VI.
STATEMENT OF THE CASE
An indictment filed in the Circuit Court for Dixie County on April 16, 1994 charged the defendant Aileen Wuornos with the first degree murder of Walter Antonio and one count of Robbery witha firearm (R 01-02). She pled not guilty to those offenses (R 4) but later admitted committing them (R 5-6). The court, after conducting a plea hearing, accepted her change of plea (SR 35-36).
She proceeded to the penalty phase portion of the trial before Judge Royce Agner. After hearing evidence in aggravation and mitigation, and the relevant law, the jury returned a death recommendation by a vote of 7-5 (R 32). The court, following that verdict, sentenced Wuornos to death. In aggravation, it found the following:
1. She has nine prior convictions for violent felonies:
a. four convictions of first degree murder.
b. five convictions fox robbery witha firearm,
2. The murder was committed during a robbery and for pecuniary gain.
3. The murder was committed in acold, calculated, and premeditated manner without any pretense of moral or legal justification.
4. The murder was committed to avoid lawful arrest.
(R 45-50).
The court found that none of the statutory mitigation had been established. It did, however, determine she had proven the following non-statutory mitigation:
1. She had an anti-social and borderline personality disorder.
2. She may have been physically abused as a child.
3. Her natural father and her grandfather had committed suicide.
4. Her grandmother died an alcoholic.
5. Her mother abandoned her as an infant.
(R 50-53).
Regarding the armed robbery conviction, the court sentenced her to serve a consecutive term of prison of 17 years with the provision that she serve a minimum mandatory 3 years for using a firearm, The court also imposed the same mandatory sentence for the murder (R 65-67).
This appeal follows.
STATEMENT OF THE FACTS
Walter Antonio, a 62 year old security guard, decided to return to his profession of truck driving (T 515). On the morning of November 18, 1990 he left Cocoa for Montgomery, Alabama where he was to get an 18 wheel truck (T 563).
Somewhere along1-95 he picked up Aileen Wuornos. The next day his nude body was found ina wooded area on a road about a quarter mile from highway 19 north of Cross City (T 361-62).
He had been shot four times in the back witha. 2 2 caliber gun
(T 455).
The police eventually arrested Wuornos for his murder, and they also charged her with robbing him (R 1). She confessed to these crimes, and what she told the police succinctly relates the details leading up to Antonio's death.
Okay. I remember. Alright. Alright, now I remember. Okay. He was an older fella, a little short guy. Alright. Okay That one... okay, I was drunk as could be. I must had a case of beer on this one. -- 1 was drunk as could be and again this guy, I'm askin' ifI can make some Mooney and he said, Sure, you know, and we get way out in the woods. Now I remember. Okay. We were way out in the woods... some, Oh God. I don't know where. Somewhere way, way way out in the woods. And, uh, we stripped on that one and then he got his pants out and was starting to come toward me to do my little deed that I'm supposed to do, hustling and everything. He got out his little... his, uh. He had his wallet out of his back pants pocket and he said he was a cop. Uh huh. Now I remember. Same thing.
You know, like, I'm a cop, he said. And he said, If you...I could arrest you and everything like this but if you want to, you can have sex with me for free and I'm gonna let you go and all this other jazz and shit like this. Said, I am sick and tired of people comin' up to me, and telling' me they're a cop. I said, No. You can get a badge like that ina detective magazine.
So, anyway, I started to get outta the back seat and he got out the back seat and he ran around in front of me and he said, Listen, man, you are going to suck my dick or you're gonna have sex with me. You gonna do something. I said, No, I'm not. And I...
and that's when he...
forget the struggle, we didn't even struggle, I whipped out my gun on that one. He said, and then he...he...after I whipped out my gun, then we struggled, And then I shot him.
(SR 57-59).
Wuornos shot him twice. He " just kinda" looked at her then said, "YOU cut.... or something." Angry at that, she shot him again. She turned her head and then shot him a fourth time (SR 60).
Naked herself, Wuornos took a ring from him and got into the car and drove away, eventually returning to a motel room she had rented (SR 6 2 - 6 4). She stripped the car of everything in it and threw the items into the woods (SR 62).
Also during November, Bobby Cops was asked to take Wuornos from a truck stop in Haynes City to Orlando, ostensibly because her car had broken down, she had two children, and needed to return to Daytona Beach (T740). He agreed, but once in the car, the defendant propositioned him (T742). He demurred, but after a few minutes she asked him again, this time being more graphic (T743). When he again declined, she "got real upset." Cops decided she was a person one could not say no to, so he agreed to her offer, but told her she needed to call her sister in Daytona Beach (T744). They pulled into a rest stop, and when she left the car, Cops locked the doors and began rolling up the windows (T 745). Stunned, Wuornos asked him what was happening. When he told her he did not want to have sex with her, she became furious (T 745). She swore at him, and told him "1'11 kill you like I did a11 them other mother fucker." (T 745) After hearing a final threat from her, Cops drove off, badly shaken (T745).
Aileen Wuornos had been abandoned with her brother asa child (T 621-22) and raised by their grandparents. She often skipped school and ran away from home (T 635-36). Asa teenager she developed a violent temper and rebel led against her grandparents who had adopted her (T628). She was pregnant at 13 (T 637), l on her own at 16 (T 639-40), and a prostitute the next 20 years (T 643). Her mother died an alcoholic after she had left home, and her father committed suicide while either in prison or on a psychiatric ward (T 643, 691-90).
Predictable, Wuornos developed mental problems, She suffer from two diagnosed personality disorders: anti-social personality disorder, and borderline personality disorder (T 676, 682). Of the two the latter was the most pronounced, with her demonstrating every one of the eight defining 'Apparently her parents learned of her condition only when she could hide it no longer (T 637). They then sent her to a home for unwed mothers and forced her to give the child up for adoption (T 637-38). Although Wuornos denied being abused by her grandfather (who had adopted her), her mother said she (the mother) had been sexually and physically abused by him (T 691).
characteristics (T682). Of particular significance to this case, she exhibited:
1. A marked emotional instability. As established by the state when it called Bobby Cops, she could be pleasant one moment, and vicious the next (T 743-44).
2. Intense inappropriate anger or an inability to control her anger (T684).
3. An extreme need for attention, often manifested by hypersexuality (T685).
4. A very marked impulsive ness. AS the expert who examined her said. "Lee is probably one of the most impulsive individuals I have ever seen." (T 695) In short, she behaved like a three year old (T 696), and suffered so much from her emotional disorders that they played a dominant role in this murder (T703).
SUMMARY OF THE ARGUMENTS
Aileen Wuornos pled guilty to the murder and robbery of Walter Antonio. Three of the eight issues raised in this cases focus on the voluntariness of that plea. The remaining five deal with penalty phase arguments.
The first three are inter related and deal solely with the voluntariness of Wuornos' plea. At the end of what was an otherwise exemplars plea colloquy, Wuornos told the court, in essence, that if she had another lawyer, she would be able to present the case she wanted. Steven Glazer, her attorney, at that point quickly interjected and said that he had no experience trying a capital case, and that if his client had insisted on going to trial, he would have to withdraw. To these latter admissions, the court said only, "Oh."
It should have said more, because it has the primary responsibility to ensure the defendant intelligently and voluntarily is pleading guilty to the charged crimes. Because of the finality inherent in pleas and the large number of significant rights waived, the court should, but failed in this case to, give the defendant the "utmost solicitude'' to insure she understands the full consequences of what a plea means.
Here the trial judge failed to do that because it is clear Wuornos had no intelligent understanding that the full hearing on her defense would never be heard if she pled guilty. The trial court should have repeated the plea colloquy if necessary to fully ensure she knew what she was doing by pleading guilty.
But from her responses, the record clearly demonstrates she never fully comprehended that her guilty plea precluded her from raising the defenses she wanted to argue. That she viewed the plea hearing as nothing more than another court appearance clearly indicates she did not intelligently and voluntarily plead guilty.
That the court erred and that Wuornos failed to understand what was going on can, in large part, be ascribed to her lawyers incompetency. Notonly did he admit his inability to represent her ina capital case, he demonstrated his mumbling incompetency in the plea hearing. For example, he never told her what punishment she could face for the robbery conviction, and when he did, it was wrong. Similarly, when Wuornos talked with him about the finality of the plea colloquy, he apparently gave her wrong advice because she persisted in her claim that she could prove the police lied in her case. Such demonstrated incompetency, apparent from the face of the record, render any plea Wuornos entered invalid.
In sentencing Wuornos to death, the court found she had committed the murder ina cold, calculated, and premeditated manner without any pretense of moral or legal justification.
The facts the court relied on, however, were common to the situations prostitutes uniformly find themselves in. The typical man who uses a prostitute is a white and middle aged.
Likewise, they typically isolated the woman. Finally, given the high level of violence prostitutes faces, that Wuornos carried a gun, like the violence itself, was normal.
Finally, as to this issue, she had at least a pretense of legal justification for killing Antonio because when Wuornos said she would not have sex with h&u he virtually demanded that she would. That she then killed him in an "execution style" reflects more her intention to prevent him from further attacking her than a cold blooded determination to kill.
Regarding the cold, calculated, and premeditated aggravating factor, the court also instructed the jury using the guidance this court in Jackson v. State, 19 Fla, L. Weekly S215 (Fla. 1994) declared unconstitutional.
The court failed to recognize some of the valid mitigation Wuornos presented. Specifically, it never mentioned her childhood pregnancy and her life of prostitution since she had been 16. It also never included in its order her admission that she had probably drunk a case of beer the day she killed Antonio, and was "drunk as could be." It also completely ignored Dr. Krop's explanation of Wuornos' mental condition, She had, at times of stress, the maturity of a three year old, she had an extremely unstable personality, and was "one of the most impulsive" persons he had ever seen.
The trial court also never discussed Dr. Delbeato's testimony that he found she qualified for the statutory mitigating circumstance that at the time of the murder, Wuornos "was under the influence of extreme mental or emotional disturbance. I' Finally, the trial court should have found that Antonio participated in the acts leading to his death, also a statutory I mitigating factor. Surely a man of his age and experience asa police officer, should have recognized the inherent violence in prostitution. That he tried to get free sex from Wuornos by using the ploy that he was a policeman and could arrest her certainly would aggravated her. Afterall, no one likes to be cheated out of their Mooney, regardless of how it is earned.
Antonio participated in his own death when he accepted Wuornos' offer of sex and his Deland that she perform for free. This conclusion must follow because during the year from the first murder to the last, Wuornos must have had hundreds of men. Yet she killed only six of them. A reasonable likelihood arises that these few men, of which Antonio was one, provoked her to violence.
ARGUMENT
ISSUE I
THE COURT ERRED IN FULLY DETERMINING THE
VOLUNTARINESS OF WUORNOS' PLEA WHEN HER
TRIAL ATTORNEY CONFESSED THAT HE LACKED THE
EXPERIENCE TO TRY A CAPITAL CASE, AND THAT
IF WUORNOS HAD INSISTED ON GOING TO TRIAL HE
WOULD HAVE MOVED TO WITHDRAW AS HER COUNSEL,
A VIOLATION OF HER FIFTH, SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENT RIGHTS.
This issue and the following two points focus on a remarkable admission Steven Glazer, Wuornos' attorney, made at the end of the plea colloquy in which Wuornos pled guilty to the first degree murder of Antonio and robbing him witha gun.
The court had accepted her plea and had conducted what, to all appearances, appeared to be a thorough inquiry to determine if the defendant intelligently and voluntarily was pleading guilty to the charged crimes. Then, just as he was about to accept her plea, the proceeding unraveled.
THE COURT: I don't mean to dis appoint you, but I'm just trying to bring you to an awareness that this Court would be dedicated to your receiving a fair trial. And your attorney has the right to, if he can show that because of the location you couldn't receive a fair trial here, then he has the right to move for what we term 'a change of venue,' to try it some other place.
DEFENDANT WUORNOS: That's the thing. AT the Mallory trial there was a change of venue brought up many, many times. It was denied.
THE COURT: But it's a point on appeal.
That may be corrected on appeal. This is why-- DEFENDANT WUORNOS: Well, you people, there's--the public defenders, how am I -- I'm not even ready for trial here. If you were to, quote, here me a public defender, he knows nothing about me. 1 have not seen him. There is a whole lot of stuff involved that he would never be able to expose ina courtroom unless I have a private attorney -- which I'm working on right now, to get private attorney -- and -- THE COURT: Let me interject. Didn't you tell me Mr. Glazer is a private attorney?
DEFENDANT WUORNOS: Nor he is not the attorney I would look for. 1 would look for somebody who would take care of the case, such as-- MR. GLAZER: Ms. Wuornos understands that I do not have the capital experience necessary to take her case to trial.
THE COURT: Oh.
MR. GLAZER: And if this case were to go to trial, I would immediately ask to withdraw because I could not possibly defend her in the way she needs to be defended.
THE COURT: Well, all right, I understand.
(SR 3 3 - 3 4).
As argued in this issue and the next two, (1) the court, when it learned of Glazer's inexperience in capital cases should have inquired further about the counsel he provided his client, (2) Wuornos' plea, in light of Glazer's admission, was not knowingly and voluntarily made, and (3) Glazer provided ineffective assistance of counsel.
Boykin v. Alabama, 395 U.S. 238, 89S.Ct. 1709, 23 L.Ed.
2d 274 (1969) provides the necessary guidance trial courts must follow in accepting a defendant's decision to plead guilty.
Because such a plea is "itself a conviction" for which "nothing remains but to give judgment and determine punishment'' Id, at 242, the trial judge must give the defendant "the "utmost solicitude" possible to make sure "he has a full understanding of what the plea connoted and of its consequence." Id, at 243-44. Boykin also required the record to affirmatively show that the defendant intelligently and voluntarily pled guilty.
Id. 242.
Rule 3.172 Fla. R. Crim. P. provides an implement ing procedure for accepting guilty pleas. Significantly for this issue, the burden of determining the legitimacy of the plea rests with the trial court although the prosecutor and defense counsel "shall assist the trial judge in this function.Il 3.172(a) Voluntariness; Factual Basis, Before accepting a plea of guilty or nolo contendere, the trial judge shall be satisfied that the pleas is voluntarily entered and that there is is a factual basis for it. Counsel for the prosecution and the defense shall assist the trial judge in this function.
See, Robinson v. State, 373 So. 2d 898, 903 (Fla. 1979).
To aid the court determine the voluntariness of the plea, the rule lists eight specific areas of inquiry ranging from the defendant's knowledge of the charges, the mandatory penal ties, the rights the defendant is waiving by avoiding a trial, and that no further legal proceeding will occur because of the plea. Significantly, the court has no discretion regarding the scope of the inquiry but "shall address the defendant personally and shall determine [what] he or she understands" regarding the plea. Rule 3.172(c) Fla. R. Crim. P, Plea colloquies thus deserve a close scrutiny by appellate courts because of the large number of significant constitutional and procedural rights forfeited, and because Boykin requires the trial court to give the defendant "the utmost solicitude which courts are capable of canvassing."
Such careful appellate scrutiny is even more deserved where the defendant's plea of guilty moves the defendant one giant step closer to receiving a death sentence. In this case, that step may have been the final one to the electric chair because Wuornos had four prior convictions for first degree murder and five for robbery witha firearm. Death, while not automatically assured, was a distinct and strong possibility almost regardless of any mitigation she could have presented.
Several cases show how this nitpicking attention to details works.
In Williams v. State, 316 So. 2d 267 (Fla. 1975), Justice Overton, speaking for the court, held that when a defendant asserts a defense during the plea colloquy the court must make a detailed inquiry to insure the defendant "specifically and understandingly waives that defense.'' - Id. at 273. Accord., Davis v. State, 605 So. 2d 936 (Fla. 1st DCA 1992). In fact, if the court makes no inquiry about the factual basis for the plea, the defendant has not intelligently and voluntarily entered her plea. State. Kendrick, 336 So. 2d 353 (Fla.
If the record shows that the defendant was confused about what he was pleading to, then the court has failed to give him the "utmost solicitude," and the resulting plea will be involuntarily given Kill v. State, 363 So. 2d 1100 (Fla. 2d DCA 1978); Williams v. State, 365 So. 2d 460 (Fla. 1st DCA 1978). If the defendant pleads guilty relying on bad advice from his lawyer, the plea may, likewise, be involuntary, Young
v. State, 604 So. 2d 925 (Fla. 2d DCA 1992).
Finally, in Koenig v. State, 597 So. 2d 256 (Fla, 1992), the trial court ina capital case accepted the defendant's plea to first degree murder by simply relying on a signed rights waiver form Koenig's attorney had discussed with the defendant, In rejecting the trial court's finding that his plea was voluntarily given, this court recognized the careful inquiry required by Boykin and the need for an affirmative showing on the record that the defendant knowingly and intelligently pled guilty. Simply relying on a form without any direct inquiry about Koenig's level of understanding of what he was forfeiting was inadequate: ''there is nothing in the record to demonstrate that he could understand the form he signed or what his attorney told him about it." Koenig at 258.
IN this case, the trial court evidently wanted to insure that Wuornos intelligently and voluntarily pled guilty to the murder and robbery. Except for the last four pages of the plea hearing, it would be a model of judicial solicitousness towards the defendant. The court went through the written plea agreement with Wuornos. He covered the factors listed in Rule3.172 with the defendant, making sure she understood what she was pleading to, what rights she was waiving, and what punishments she was facing.2 He made sure there was a factual basis for her plea. Thus, if the above quoted portion of the plea colloquy had never occurred, appellate counsel could not in good faith have challenged the voluntariness of Wuornos' plea.
But what do we do with that final dialog? The trial court, when it heard Glazer admit "I do not have the capital experience necessary to take her case to trial" merely said, 'lOh." When counsel continued that "if this case were to go to trial, I would immediately ask to withdraw because I could not possibly defend her in the way she needs to be defended." the court should have said, "Uh "oh." When Wuornos told it that Glazer was not the attorney she "would look for" because there was still a "whole lot of stuff " that she wanted investigated (SR 31-33), the court should have said, "Oh "no," Obviously she never understood that by pleading guilty "there [would] not be a further trial of any kind." Rule 3.172(~)(5) Fla. R. Crim.
P, She still believed that if she had the right lawyer, she would be able to present her case with her evidence. She completely missed the import of the court's colloquy with her:
2Glazer initially had not told Wuornos what sentence she could face for the robbery (SR 7). After a short courtroom huddle with him she said "Fifteen or thirty, habitual, something like that." (SR 8) That was incorrect and the Prosecutor corrected her, saying that "the robbery as charged in the indictment carries a penalty of up to life. Since it's witha firearm, it's a first degree punishable by life." (SR 8) that she could plead not guilty, go to trial, call her witnesses, and present her case.
This last discussion with Wuornos, and Glazer's admission, seriously call into question whether she knew what she was doing in pleading guilty. The court should have stopped the proceedings after hearing her and her attorney, and repeat the plea colloquy it had only minutes earlier easily breezed through. To show Wuornos the "utmost solicitude" the court should have made absolutely sure that she understood that she would have her day in court, but only one day, and this was it.
Earlier Wuornos had told the court that 'Iii hoping for eventually--well, I'm hoping eventually there will be new evidence brought out that will open up the case in each and every case. (SR 31). The court tried to deflated that hope.
"Well, Mr. Glazer has told you there are definite rules about new evidence. Some new evidence can't be admitted."
Evidently, he had not because there was an "off the record discussion between Mr. Glazer and the Defendant." Even after this chat Wuornos persisted in claiming that she could prove the police lied (SR 32), but the court moved on to other matters.
Here, when Wuornos claimed she had a defense, though perhaps unarticulated, the court should have inquired with specificity about it and made sure that if she still wanted to plead guilty she was abandoning it. Williams, supra. Also, the defendant here was confused about the impact her plea would have on future litigation, and it is unclear what her lawyer had told her and more importantly what she thought she could do after pleading guilty. Kiel, supra.
One must also question Glazer's advice. Even after he had talked with her about presenting new evidence at some future hearing, she persisted in claiming that she could prove the police lied, a fact which even if true, would have questionable relevance at any post-conviction proceeding. Scott v. Duqqer, 604 So. 2d 465 (Fla. 1992); Jones v. State, 591 So. 2d 911 (Fla. 1991). (SR 31). For someone who evidently knew nothing about capital litigation his advice not only should be suspect in general, it was wrong (SR 7-8) and misleading specifically (SR 32). Young, supra.
Finally, despite the lawless plea colloquy earlier, what happened at the end destroy its effectiveness. When Wuornos talked about her new evidence and wanting to get a real lawyer to handle her case and when Glazer admitted he was incompetent in capital matters the court should have started over at the least. Ideally, he should have had Glazer withdraw and either let Wuornos hire one who was familiar with capital case defense, or it should have appointed the Public Defender to represent her. At the least, the court should have reiterated its earlier point that Wuornos' guilty plea would forever forfeit her right to present evidence of her innocence.
As the case now stands, the record lacks the required affirmative showing that Aileen Wuornos intelligently and voluntarily pled guilty. Boykin, Koenig. The court should have inquired further when she discussed her future plans, and the court this deficiency could have been avoided if the court had given the defendant the "utmost solicitude" in accepting her plead. This court should reverse the trial court's judgment and sentence and remand for further proceedings.
ISSUE I1
AILEEN WUORNOS DID NOT INTELLIGENTLY AND
VOLUNTARILY PLEAD GUILTY TO FIRST DEGREE
MURDER AND ARMED ROBBERY IN VIOLATION OF
HER FIFTH, SIXTH, AND FOURTEENTH AMENDMENT
RIGHTS.
The law cited and discussed in the last issue provides the legal foundation for this argument. Specifically, Wuornos could not have intelligently pled guilty to the crimes charged as long as she believed she had viable defenses and that she would some day be able to prove her innocence. Williams v.
State, 316 So. 2d 267 (Fla. 1975). Similarly, if she never realized the finality inherent in the guilty plea her plea was not intelligently made. "A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment." Boykin v. Alabama, 395 U.S. 238, 89S.Ct. 1709, 23 L.Ed.2d 274 (1969). At least twice Wuornos raised the possibility of some defense that should have caused the court to inquire deeper and determine that she understood that she was foregoing them if she pled guilty.
In the first instance, after the court's plea colloquy, Wuornos, said: "Well I'm hoping for eventually--well, I'm hoping eventually there will be new evidence brought out that will open up the case in "each and every case." (SR 31) The courtl rather than exploring what that new evidence might be, merely said "Well, Mr. Glazer has told you there are definite rules about new evidence. Some new evidence can't be admitted 'I Apparently, he had not, and after a brief session he evidently still had not enlightened his client about the dangers of relying on post-conviction remedies. Wuornos persisted in her claim of police lying, which the court let lie rather than telling her merely because the police lied would not necessarily grant her any relief. Scott v. Dugger, 604 So.
2d 465 (Fla. 1992); Jones v. State, 591 So. 2d 911 (Fla, 1991).
The court never explained to her that by pleading guilty, she would give up the right to examine or cross-examine the police, to expose the fabrication. Trial was the place to do that, not some post-conviction proceeding.
Wuornos obviously did not realize the finality of the plea proceeding. She had a notion that if she could hire a private lawyer, he or she would find the evidence which was there to prove her innocence. Glazer was not the one she wanted to do that (which he agreed), but the evidence was there, it just needed to be found (SR 3 3 - 3 4). The plea hearing evidently was a mere nuisance to her, something she needed to do, but had no real understanding why she was pleading guilty or what terrible consequences it had for her ability to establish her story.
Under these circumstances, the evidence fails to clearly show Wuornos intelligently and voluntarily pled guilty to first degree murder and armed robbery. This court should reverse the trial court's judgment and sentence and remand fora new trial.
ISSUE I11
AILEEN WUORNOS WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED HER BY THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE 1
SECTION 16 OF THE FLORIDA CONSTITUTION.
The last argument in this trilogy of issues surrounding Wuornos' plea focused on the quality of Steven Glazer's representation of Wuornos. Admittedly it will be a difficult issue to win, but it is raised now to place the previous two issues in context, and to help convince this court that something definitely was amiss at that plea hearing. Normally, claims of ineffective assistance of counsel cannot be raised on direct appeal. Kelley v. State, 486 So. 2d 578, 585 (Fla.
(1986). There are, however, two exceptions to this general rule. The one applicable here provides that the appellant can raise this issue if the record on appeal is sufficient "to allow determination of an ineffective ness claim." Love v.
State, 601 So. 2d 271 (Fla. 1st DCA 1992).
In this case, Glazer's ineffective ness shouts from the record. First, and most significant, he admitted it:
MR. GLAZER: Ms. Wuornos understands that do not have the capital experience necessary to take her case to trial.
THE COURT: Oh.
MR. GLAZER: And if this case were to go to trial, I would immediately ask to withdraw because I could not possibly defend her in the way she needs to be defended.
(SR 34).
If Glazer could not represent her at trial then her plea becomes suspect. His inability to represent her at trial means that rather than frankly discussing with her the possible trial strategies and defenses he would be pushing her to plead. In fact, the admission means that he probably did not know what strategies and defenses were available or arguable.
What little we know about the murder comes exclusively from Wuornos' confession. That statement, however, clearly raised two possible defenses: self-defense and intoxication.
Oh... now I remember. Okay, I remember.
Okay. 1 remember. Alright. Alright, now I remember. Okay. He was an older fella, a little short guy. Alright. Okay. That one... Okay, I was drunk as could be. I must have had a case of beer on this one.--I was drunk as could be... so anyway, I started to get outta the back seat and he got out the back seat and he ran around in front of men and he said, Listen, man, you are going to such my dick or you're gonna have sex with me. You gonna do something. I said, No, I'm not. And
I... we didn't even struggle, I whipped out my gun on that one. Be said, and then he...he... after I whipped out my gun, then we struggled, And then I shot him.
(SR 57-59) (Emphasis supplied.)
Additionally, the plea hearing shows that Glazer either gave Wuornos no advice, bad advice, or incomplete advice on crucial issues in her change of plea. For example, he apparently never told her what the possible punishment was for robbery witha firearm, the second charged crime, and when he did, it was wrong.
THE COURT: And for robbery while armed with a firearm, has Mr. Glazer told you the maximum penalty for that offense?
Ms. Wuornos: No.
(Whereupon, there was an off-the-record discussion between Mr. Glazer and the Defendant.)
MS. WUORNOS: Okay, He just told me.
THE COURT: All right. What is it?
MS. WUORNOS: Fifteen or thirty, habitual, something like that.
The prosecutor objected because Glazer had given her the wrong information.
MR. PAGE: I hate to interject, but the robbery as charged in the indictment carries a penalty of up to life. Since it's witha firearm, it's a first degree punishable by life.
(SR 7-8).
Later, after the court told her that by pleading guilty she would give up her right to trial and a11 the rights associated with it, Wuornos apparently did not understand that.
She insisted that if she had had a "real" lawyer a11 the police lies would be exposed. Glazer was not the "one she would look for" (SR 3 3), indicating that even the defendant had recognized her counsel's shortcomings. Glazer obviously never told his client that the plea would largely prevent her from raising those issues. What advice he did give her on that point obviously misled her regarding her ability to present her case.
DEFENDANT WUORNOS: Well, I'm hoping for eventually-- well, I'm hoping eventually there will be new evidence brought out that will open up the case in each and every case.
THE COURT: Well, Mr. Glazer has told you there are definite rules about new evidence.
Some new evidence can't be admitted.
Apparently he had not because the court reporter noted "Whereupon, there was an off-the-record discussion between Mr.
Glazer and the Defendant." (SR 31) Moreover, like the sentencing information on the robbery charge, what he told her was wrong because she persisted in claiming that she could prove the police lied, and impliedly believed that it could be done at some future hearing.
DEFENDANT WUORNOS: Okay. Evidence of police lying and we can prove it, then-- THE COURT: Well -- DEFENDANT WUORNOS: I'm pretty sure I can get it proved.
(SR 32).
Such bad advice is sufficient to grant Wuornos relief.
C.f., Thornburg v. State, 591 So. 2d 1121 (Fla. 1st DCA 1992);
Gonzalez v. State, 590 So. 2d 1080 (Fla. 2d DCA 1991) (Misstatements about consequences of guilty plea or gain time sufficient to show ineffective ness of counsel.)
In effect, Glazer's incompetency raises a collateral issue to the one this court decided in Hamblen v. State, 527 So. 2d 800 (Fla. 1988). In that case, Hamblen waived his right to counsel, pled guilty to a first degree murder, and in essence, asked to be executed. This court, rejecting appellate counsel's argument that some sort of counsel should have had been appointed to present a case for life for Hamblen, said, In the field of criminal law, there is no doubt that 'death is different,' but in the final analysis, all competent defendants have a right to control their destinies.
Id. at 804.
What happens, though, ina case like this where a defendant has counsel who apparently does nothing to apprise his client of her defenses, but simply acceded to her wish to plead guilty. Was Glazer merely a Dr. Kevorkian of the the law, who did what he could to facilitated Wuornos' desire to end her life?
The law should condemn lawyers who cannot give reasonable advice to their clients as Glazer manifestly could not and did not do here. An attorney does more than simply stand by his client while she bumbles through plea hearing. Glazer's incompetency fairly shouts from this record, and this court should recognize it, reverse the trial court's judgment and sentence, and remand for further proceedings.
ISSUE IV
THE COURT ERRED IN FINDING THAT WUORNOS
COMMITTED THE MURDER INA COLD, CALCULATED,
AND PREMEDITATED MANNER WITHOUT ANY PRETENSE
OF MORAL OR LEGAL JUSTIFICATION BECAUSE IT
WAS EITHER NOT SO OR HER CLAIM OF SELF
DEFENSE PRESENTED AT LEAST A PRETENSE OF
LEGAL JUSTIFICATION, A VIOLATION OF HER
EIGHTH AND FOURTEENTH AMENDMENT RIGHTS.
Walter Antonio was the last of the six men Aileen Wuornos murdered, She killed Richard Mallory in December 1989 and killed the next victim in May, 1990. Then at approximately six to eight week intervals, she killed the other men. The court, in finding that she killed her last victim ina cold, calculated, and premeditated manner, found
1. Each victim was a white male, over the age of 40, who traveled alone,
2. Each was killed ina remote location, shot several times, often in the back of the head, and robbed of their belongings and cars.
3. Wuornos had an easily accessible gun.
4. She killed Antonio in an execution style: there were no signs of any struggle.
The court further rejected her version of what happened, namely that the victim, after agreeing to use Wuornos asa prostitute and taking off his clothes told her that he was a policeman, but that if he gave her free sex, he would not arrest her. As she tried to leave the back seat of the car, he struggled with her, and eventually also fought over her gun.
The court also refused to believe that she acted in self defense, credit ing instead "other testimony in this case."
(T47-48).
The court erred in finding this aggravating factor because the state presented insufficient evidence she committed the murder as the court described, and even if it did, it never rebutted her reasonable contention that she shot Antonio in self-defense. Moreover, the court com pounded the error by letting the jury consider this aggravator in reaching a recommendation of whether she should live or die.
A. The cold, calculated killing.
For the cold, calculated, and premeditated aggravating factor to apply ina particular case, this Court has required proof of a "careful plan or pre arranged design" in effecting the killing. Rogers v. State, 511 So. 2d 526 (Fla. 1987);
Amoros v. State, 531 So. 2d 1256 (Fla. 1988). Here the trial judge seems to have inferred the existence of such a plan from certain shared traits among the six victims the defendant killed, as well as certain similarities in the circumstances of the killings. As noted above, it found that each victim was a white male, over the age of 4 0, who traveled alone. In addition, each was killed ina remote location. However, as explained below, these factors describe the ordinary characteristics of prostitution. Thus, to sustain the lower court's findings that the characteristics common to most street prostitution support a conclusion that the killing was cold and calculated would discriminate against prostituted women by defining the ordinary conditions of their lives asa reason for putting them to death.
Middle aged white men comprised the vast majority of the buyer class in prostitution. - See Harold R. Holzman & Sharon Pines, Buying Sex: The Phenomenology of Being a John, 4 Deviant Behav. 89, 89-95 (1982)(includes a survey of existing research on johns). "Car dates" are typically trans acted in "remote locations," for obvious reasons and to the disadvantage of the woman's safety. The physical isolation of the woman functions asa means of control and dominance over her, rendering her less capable of resistance and the perpetrator more difficult to identify. - See Carlton Smith & Toms Cullen, The Search for the Green River Killer (1991); see also Crump v. State, 622 So.
2d 963 (Fla. 1993); Long v. State, 610 So. 2d 1268 (Fla.
(1992)(defendants sentenced to death for seeking out prostituted women, kidnapping, binding, raping, strangling, and ultimately murdering them). These tactics echo those now more familiar in the context of domestic violence. Women beaten by their husbands and boyfriend are commonly isolated from other family and friends by the perpetrators in order to enhance the perpetrators' control over the woman's behavior and to ensure secrecy surrounding the abuse. To infer that a prostituted woman is setting in motion 'a pre arranged plan" because the men who use her and the mechanic of the transactions look much the same day after day is analogous to infer ring that a battered woman plots her own abuse by getting married and going home from work every day.
That the defendant carried a gun, a fact relied upon by the court below, is likewise unremarkable. Johns, i.e, those who use prostitutes, unfortunately have more in common than race, gender, and age: they routinely beat, mutilate, torture, and murder they women they have "bought." Law enforcement acknowledges that the incidence of such "abuse" to be both high and nearly inevitable. The murder of 4 8 women in the Seattle area by the so-called "Green River" killer in the early 1980's made headlines around the country. - See Carlton Smith & Tomas Guillen, The Search for the Green River Killer (1991). What made these murders so shocking was their number, and not that the victims were prostitutes. Police experts routinely acknowledge that prostituted women face extremely high risks for murder because of their isolation and anonymity, common characteristics these women share. Robert DePue, former administrator of the FBI National Center for the Analysis of Violent Crime, states: "Prostitutes can disappear, and there won't even be a missing person report filed. They're expendable people, unfortunately, in our society." Lisa Faye Kaplan, Someone is Killing U.S. Hookers, Gannett News Service, June 7, 1990. Robert Keppel, chief investigator for the Washington State Attorney General's Office and consultant to the Green River investigation, explains further: "Nobody keeps track of these women, monitors where they are going to be day by day. Often by the time the police get involved, it's a historical research project." Michael Hedges, Prostitutes, Psychopaths Too Often a Deadly Match, Wash. Times, June 12, 1990, at A10.
Explanations for the violent hostility motivating the tortures, mutilations, and murders has been little explored.
In interviews with 200 prostituted women conducted in 1981 in San Francisco, the women themselves said that they believed the men were violent because they "got off on it, enjoyed it and thought it was part of the sex" or because the johns hated prostitutes or hated women in general. - See Mini Silbert & Ayala Pines, Occupational Hazards of Street Prostitutes, 8 Crim. Just. & Behav. 395, 397 (1981). See also Deborah Cameron & Elizabeth Frazer, The Lust to Kill: A Feminist Investigation of Sexual Murder 120-162 (1987).
Indeed, in this case, when Wuornos decided not to have sex with Antonio, he became belligerent, insisting that she do something (SR 58-59). The violence lurking just beneath the surface of this incident occurs all to often. The abuse women such as Wuornos receive is uncontested. A 1991 study by the Council for Prostitution Alternatives in Portland, Oregon found that 78% of 5 5 prostituted women reported being raped an average of 3 3 times a year. Susan Hunter et al., Council for Prostitution Alternatives, Inc. Annual Report (1991). Beatings ranged from 1 to 400 times ina year. Id. at 3. Fifty-three percent of women were tortured sexually by pimps and johns, with nearly a third mutilated. - Phillippa Levine, author of a 1988 study of street prostitution in Florida:
the same dangers attached to prostitution wherever I looked. In every city and town I heard grim stories of violence and coercion, of rape and murder, of non-payment and forced sex, of hunger, pain, disease, and desperation.... [Wle should not forget the still unsolved murders of young prostitutes in Pensamla, the crack-addicted streetwalkers of Tallahassee, the heroin -addicted HIV-infected woman whose name made headlines in Tampa and whose name was disclosed by the media with little care for her health or dignity....
[Tlhe... [Florida] police confirmed that they knew of no [prostitutes] who had not had bad experiences with customers.
Intimate transactions with strangers constitute danger in themselves, all the more so when one considers that almost all street prostitution is conducted in parked cars controlled by those customers. Women spoke of jumping out of moving cars in preference to facing weapons, of being driven to lonely areas against-, their will, of non-paying clients whose violent behavior forced them to comply with unanticipated desires, One interviewee described one horrific night when three separate clients threatened her witha knife.
Phillippa Levine, Prostitution in Florida--A Report Presented to the Gender Bias Study Commission of the Supreme Court of Florida 3 4 - 3 5 (Sept. 1988).
These findings echo earlier studies conducted in Milwaukee, Wisconsin and San Francisco, California. Eleanor Killer's 1986 study of Milwaukee street women revealed that "[tlhe beatings and sexual assaults street female hustlers received at the hands of their 'men', their ' dates, ' their wives-in-law, former 'women' of their 'men,' and other street people as well as the police were numerous and often brutal."
Eleanor M. Miller, Street Woman 138 (1986). A 1981 study of San Francisco 200 street prostitutes reported that 7 0 % of the women had been raped by johns, an average of 31 times per woman, and 65% of the women had been physically abused and beaten by johns. Mini Silbert & Yah Pines, supra at 395.
Again, the lower court's inference from the fact that the defendant carried a gun to support the conclusion that she planned a killing ina "cold and calculated" manner glibly ignores the grim realities of prostituted woman's lives and the routine brutality of the men who buy them.
The remaining factors recited by the court are similarly unconvincing. The nature of the wounds, together with the lack of substantiating evidence of a struggle, do not in themselves support a finding that the killing was of an "execution-type" as the lower court concluded. Indeed, three members of this Court wrote, in concurrence in Jackson v. State, 19 Fla. L.
Weekly S215 (Fla. 1994)" that Andrea Jackson's killing of a police officer was not cold, calculated or premeditated despite the fact that she had shot him four times in the head and twice in the sho ~ der. ~The four wounds to the victim's back in this case instead indicate panic and fear of the victim inconsistent with the "cool and calm reflection" required by this Court to support a finding that the killing was calculated. Richardson v. State, 604 So. 2d 1107, 1109 (Fla. 1992). Again, the related context of woman's use of violence in defense against batterers is instructive. In that context, women often shoot 3The majority opinion remanded the case fora new sentencing hearing because the instruction on this aggravating factor provided inadequate guidance to the jury.
their victims several times, even when there is no immediate threat of attack. See Hawthorne v. State, 408 So. 2d 801 (Fla.
(1982); Borders v. State, 433 So. 2d 1325 (Fla. 3rd DCA (1983).
I The "excess" wounding has been linked to the same factors which generally compromise woman's inability to defend themselves:
lack of belief in the effectiveness of any lesser resistance, relative size and strength, lack of training in the use of firearms, belief in the man's ability to "come back" at the woman despite her resistance, and the woman's reasonable predict ion that her risk of being killed escalates substantially if she resist at all. See Lenore Walker, Terrifying Love (1990). Likewise, the defendant's behavior in this case in repeatedly shooting the victim manifest the same compensatory impulses, rather than the cool, gratuitous cruelty meant to be comprehended by this aggravating factor, Finally, the lower court relied on the defendant's robbery of the victim to support its finding that the killing was calculated. This Court clearly disentangled these factors in Hardwick v. State, 461 So. 2d 79, 81 (Fla. 1984). There the Court concluded that a planned robbery does not mean that a murder committed during the course of the robbery was also planned. Here, there is no evidence to suggest that even the robbery of Antonio was planned. If, following Hardwick, a planned robbery does not imply a calculated murder, certainly an unplanned robbery can logically do no more.
The court below further erred in finding this aggravating factor present in light of the evidence that Ms. Wuornos committed the killing under at least a pretense of moral or legal justification. A pretense of justification, "though insufficient to reduce the degree of homicide, nevertheless rebut the otherwise cold and calculating nature of the homicide." Band v. State, 536 So. 2d 221, 224-25 (Fla. 1988).
See also Christian v. State, 550 So. 2d 450 (Fla. 1989) (defendant brutally stabbed another prison inmate who had assaulted him weeks earlier and had thereafter threatened to kill him); Cannady, 427 So. 2d 723 (Fla. 1983) (defendant asserted that murder of minister occurred when minister attacked defendant after befriend ing him). Ms. Wuornos consistently maintained throughout her statement to the police that she acted in self-defense (SR 5 7 - 5 9). Antonio demanded sex from her: "Listen, man, you are going to suck my dick or youlre gonna have sex with me. You're gonna do something."
When she refused, they struggled and she shot him (SR 5 7 - 5 9).
This unrebutted testimony plainly created a pretense of moral of legal justification sufficient to rebut a finding that the act was cold and calculating - Id.
The court below explicitly rejected the defendant's account "of having killed Antonio to prevent rape upon her person." (T 48) However, the court's position is flawed legally, logically, and factually. Legally, the court is held to the high standard of unmistakable clarity in setting forth the grounds of its sentencing order. Mann v. State, 420 So. 2d 578 (Fla. 1982). The court below fell short of that standard here, leaving the defendant, counsel, and this Court to speculate as to the basis in the record for the court's conclusion. The court refers only vaguely to "the other testimony in this case" supporting its finding against the defendant. At the very least, this case should be remanded for the court to clarify the meaning of this portion of the order so that this Court is provided an effective basis for review.
The "other testimony" to which the court referred may be Detective Horzepa's testimony regarding the defendant's motive for her robbery of Antonio's jewelry and other items.
Detective Horzepa asserted that the defendant "took the property out of pure hatred and also revenge, and she wanted to get her Mooney's worth." (T 501-502) (emphasis added) That testimony, even if credited, is logically irrelevant to the issue of the circumstances of the killing and the credibility of the defendant's self-defense claim. Even if the defendant stole out of spite does not mean that she killed him for the same reason. The distinction is consistent with the Court's closely related holding in Hardwick, 461 So. 2d 79, 81 (Fla.
(1984). In Hardwick, the Court reasoned that a motive which makes a robbery cold and calculated does not necessarily transfer to the commission of the murder.
Finally, the court's disregard of the defendant's description of the events leading to Antonio's death likewise ignores the overwhelming incidence of sexual assault, beatings, attempted murder, and murder that prostituted women face daily.
The rate of that incidence has been reviewed above. These facts bear directly on Ms. Wuornos' likely subject ive perception of threat, as well as the objective reasonable ness of her asserted need to employ deadly force in self-defense.
Moreover, the extreme violence encountered by prostituted women, taken together with the number of men with whom they come into contact, defines the appropriate context within which the Court should consider the relevance of the other killings committed by the defendant to the credibility of her claim here. On average, street prostitutes have sex between 4 and 7 times per day. See e.g., Matthew Freund et al., - Sexual Behavior of Resident Street Prostitutes with their Clients in Camden, New Jersey, 26J. Sex res. 460, 465 (1989). In the course of the year in which the killings occurred, over 1,000 men may have purported to buy the defendant for sex. That she perceived six of them as immediately dangerous to her is reasonable. In any event the fact of multiple killings, taken alone, should not defeat a showing that the defendants acts were undertake under a pretense of justification.
Thus, the murder of Antonio was neither cold, calculated, or premeditated, and Wuornos had at least a pretense of moral justification for shooting him. Because the jury recommended death by only the slimmest of margin (7 - 5), this court must reverse fora new sentencing hearing.
ISSUE V
THE COURT ERRED IN INSTRUCTING THE JURY ON
THE COLD, CALCULATED, AND PREMEDITATED AND
AVOID LAWFUL ARREST AGGRAVATING FACTORS
BECAUSE THE INSTRUCTIONS WERE
UNCONSTITUTIONALLY VAGUE, IN VIOLATION OF THE
DEFENDANT'S FIFTH AND FOURTEENTH AMENDMENT
RIGHTS.
Without any objection nor with any suggested instruction from wuornos's counsel, the court gave the jury the instruction on the coldr calculated, and premeditated aggravating factor this court disapproved in Jackson v. State, 19 Fla. L. Weekly S215 (Fla. 1994) (T 830-31). It also provided equally deficient guidance on the void lawful arrest aggravator (T 830). This latter instruction was defective because the court never told them that it applies to the murder of someone other than a policeman only if the state has proven that the dominant motive for the murder was witness elimination. Riley v. State, 366 So, 2d 19 (Fla. 1978). While this court in Jackson declared that the jury need not know every refinement in death penalty sentencing, what the court never told these jurors amounts to a critical, defining part of this latter aggravator.
Failure to limit it allowed the jury to exercise its unfettered discretion, a serious constitutional breach that should have been avoided without any regard to defense counsel's failure to bring this breach to the court's attention.
Because the jury recommended death by only a one vote majority, this court should ignore counsel's failure to object, the surely to come harmless error cry from the state, and reverse the trial court's sentence and remand fora new sentencing hearing.
ISSUE VI
THE COURT ERRED IN IGNORING OR REJECTING
THE ABUNDANT MITIGATING EVIDENCE WUORNOS
PRESENTED, A VIOLATION OF THE DEFENDANT'S
EIGHTH AND FOURTEENTH AMENDMENT RIGHTS.
The trial court made three errors regarding the mitigating evidence presented. First, it rejected the uncontroverted evidence regarding Wuornos' childhood, particularly her teenage years. Second, it made no mention of the equally unchallenged testimony that when she killed Antonio she had drunk at least a case of beer. Finally, the court dismissed the findings of Dr.
Harry Krop as "interesting but insufficient to justify the finding of any mitigating circumstance." (R 54) To mitigate a death sentence, the evidence the defendant produces must, "in fairness or in the totality of the defendant's life or character, be considered as extenuating or reducing the degree of moral culpability for the crime committed" or "anything in the life of the defendant which might militate against the appropriate ness of the death penalty." Maxwell v. State, 603 So. 2d 490, 494 f.n. 2 (Fla.
(1992). Accord, Rogers v. State, 511 So. 2d 526 (Fla. (1987);
Campbell v. State, 571 So. 2d 415 (Fla. 1990).
A childhood of parental neglect or abuse can mitigate a death sentence. Nibert v. State, 574 So. 2d 1059 (Fla. 1991).
In this instance the sins of the parents were not those of commission but omission. Although Wuornos' aunt/sister said she saw no sexual or physical abuse of the defendant, by the time Wuornos was 13 she obviously feared what they might do if they discovered her pregnancy, itself a shocking (well, perhaps not so shocking in today's society) revelation. Her parents vanished her to a home for unwed mothers to wait her child's birth (T 637). Once she returned, life for this teenager, never very pleasant, apparently turned even worse.
She had frequently run away from home before she turned sixteen, itself an indicator of problem^.^ AT that age, she made her final break with childhood and entered, ready or not, into the adult world. Obviously ill suited to the demands of society, she had nothing to sell but her body which she did for almost 2 0 years. She had no first date, no senior prom, no slumber parties. No one cried at her high school graduation, no mother watched her learn to sew, and no father had his hair turn gray as he taught her to drive. No one waited for her to come home at night from a date, no one grounded her for being an hour late, and no one listened to her when she just needed to talk.
Instead, dozens, hundreds, and probably thousands of men had her. The dollar defined intimacy and trust. Her home was the road, and her bedroom the back seat of a car (T 692). If, at the end of years of prostitution, the resiliency of spirit, 4Sam Janus, The Death of Innocence: How our Children are Endangered by the New Sexual Freedom (William Marrow: New York, 1981), p. 7 8 ("Not surprisingly, if we look at the early life of a child who becomes a prostitute or mother at 12,..., we usually find that the roots of defiance reach deep into the family structure."); Wuornos v. State, 19 Fla. L. Weekly S503, the reserves of any dignity had become depleted, then this court should recognize that exhaustion as mitigation. As she said, ''1 am sick and tired or people cornon' up to me, and telling' me they're a cop and I don't think you're a cop." (SR 58) This life, beginning when she was 13 and accelerating when she left home at 16 mitigate a death sentence.
Likewise, her drinking and drug taking (T 692-93), particularly on the day of the murder, mitigate a death sentence. - See, Wickham v. State, 593 So. 2d 191, 194 (Fla.
(1991). When questioned by the police about the Antonio murder remember. Alright. Alright, now I remember. Okay. He was an older fella, a little short guy. Alright. Okay. That one...okay, I was drunk as could be. I rnusta had a case of beer on this one-I was drunk-as could be..." (SR 57-58) The court should have considered her drunkenness in its sentencing order, particularly when the state never challenged or rebutted it. S The court, in refusing to find the defendant acted under the influence of an extreme mental or emotional disturbance, acknowledged that Wuornos said she had drunk "alcoholic beverages at about the same time" she murdered Antonio. It 'Prostitutes often abuse alcohol and drug to dea den the experience and degradation of prostitution. John Briere and Marsha Runtz" Research with Adults molested as Children, in Lasting Effects of Child Sexual Abuse, Gail E. Wyatt and Gloria
J. Powell, eds. at pp. 85, 9 2.
refused, however, to give it any weight because she could recall "the seemingly minutes of detail concerning this murder." (R 51) Even though she may have been drunk, there was no evidence she had lost her memory or even that those who are so have no memory of what they have done.
Moreover, Dr. Krop's testimony was more than "interesting." It explained why Wuornos committed her crimes (T 703). He and Dr. Delbeato, the other psychologist who examined her, both concluded she had a borderline personality 22 (T 580, 681). Krop's diagnosis surprised him because she satisfied all eight of the defining characteristics of this defect, which was very unusual and which made her a disturbingly unique person for him (T 682). 6 Of those factors, her intense impulsive ness, unstable mood swings, inappropriate anger, and unstable and intense personal relations best explain what drove her to kill Antonio.
Dr. Krop, who is no stranger to this court or death penalty sentencing, noted that "Lee is probably one of the most impulsive individuals I have ever seen." (T695) This also meant she had an impaired judgment, lacked insight, and 6Prostitutes and strippers have a high incidence of borderline personality disorders. See Coin A. ROSS, et. al., Dissociation and Abuse Among Multiple-Personality Patients, Prostitutes, and erotic Dancers, 41 Hosp. & Comm. Psychiatry 328 (1990); Dirk de Schampheleire, MMPI Characteristics of Professional Prostitutes: A Cross-cultural replication, 56 J.
of Per. Assess. 343 (1990) (Prostitutes generally have serious mental health problems.)
more like a three year old than a mature woman of 3 4 (T 696).
Feeding this impulsive ness, Wuornos had very unstable mood swings. During Dr. Krop's 8 hour examination of her, he never "knew what was going to set her off." (T 683) Bobby Cops' recounting of his run-in with her confirm this. When Cops refused her offer of sex, she "really got mean.... And she turned around and she looked and she just -- a scowl come over her face and she "got real upset." (T 744). When he decided to play along with her, however, "she called back down then." (T 744). Then when she discovered Cops had tricked her, "she come unloose. She went to calling me all kind of dirty names.
.. this lady was something else." (T 745) Wuornos, as evidenced by the Cops incident, had inappropriate and very intense fits of anger, far out of proportion to that which may have been justified. They were also very typical for her (T684).
Finally, that she had intense but brief personal relationships should be expected. She was married for one month to a man 4 0 years older than her and more a father than a husband (T682). Moreover, because she had prostituted herself for years, we should expect she had an version to deep, caring feelings for others. Others had used her, and she had used them. Sexuality or rather a hypersexuality had defined her existence since she was 13 (T 685). 7 Thus, Dr. Krop's testimony, rather than being merely interesting, revealed a side of Aileen Wuornos that must mitigate a death sentence. Her intense impulsive ness, primitive coping ability, rapid mood swings, extreme and inappropriate anger, and her hypersexuality define her and explain her actions far better than any made for TV movie. 8 They do so because Lee Wuornos is the product of an extremely dysfunctional family (T 691) and 20 years of being on the streets. Failure, rejection, and abuse define her life, and Dr. Krop's testimony describes clinically the real tragedy of this woman. It mitigate a death sentence, but cannot remotely capture the tragedy of her life.
The court, therefore, erred in truncating its analysis of the mitigating evidence as described above. This court should reverse the trial court's sentence and remand fora new sentencing hearing.
'There is a pervasive and high incidence of sexual, physical, and emotional abuse that contributes to a girl's vulnerability to prostitution. Mini Silbert & Ayala M. Pines, "Entrance into Prostitution," 13 Youth & Society 471, 479 (1982).
*Hypersexuality is a common consequence of child abuse, and is readily exploited in prostitution. -See, David Finkelhor, The Trauma of Child Sexual Abuse, in Lasting Effects of child Sexual Abuse, cited above, pp. 61, 69, 73.
ISSUE VII
THE COURT ERRED IN IGNORING DR. DELBEATO'S
TESTIMONY THAT WUORNOS HAD AN EXTREME
EMOTIONAL OR MENTAL DISTURBANCE AT THE TIME
OF THE MURDER, A VIOLATION OF HER EIGHTH
AND FOURTEENTH AMENDMENT RIGHTS.
Dr. Donald Delbeato, a psychologist, examined Wuornos and largely confirmed Dr. Krop's conclusion that she had a Borderline Personality disorder (T 584). Significantly, he found she also qualified for the statutory mitigating circumstance that at the time of the murder, she "was under the influence of extreme mental or emotional disturbance."
Q. And when she was with Mr. Antonio did she have an extreme mental or emotional disturbance?
A. I feel she has an emotional disturbance or a personality dysfunction.
A. Extreme emotional disturbance, as you said before?
Q. I would say a severe form, yes. If you want to use the word "extreme," I would say severe.
Q. To me it's semantics. I'm saying she does have a personality disorder, and borderline types are marginal. I, as an individual who diagnoses these individuals and see them, felt that it is a severe problem because they're going to have very marginal and difficult lives.
(T 605-606).
The court made no mention of this testimony in its sentencing order; instead it focused only on Wuornos' testimony that she was drunk when she killed Antonio:
"Although she testified that she had consumed alcoholic beverages at about the same time of the commission of the offense she had a recall, after reflection, of the seemingly minutes of detail concerning this murder." (R 51) The court's order failed to meet the standards this court articulated regarding the mitigation presented at the sentencing hearing. Campbell v. Statel 571 So. 2d 415 (Fla.
(1990). "The court must find asa mitigating circumstance each proposed factor that has been reasonably established by the evidence, and is mitigating in nature." - Id. Here the court ignored Dr. Delbeato's testimony unequivocally finding this statutory mitigator. That was error, and because it failed to find a statutory mental mitigator such error cannot be harmless, This court should reverse the trial court's sentence and remand fora new sentencing hearing.
ISSUE VIII
THE COURT ERRED IN FINDING THAT WALTER
ANTONIO PARTICIPATED IN THE ACTS LEADING TO
HIS DEATH, A VIOLATION OF WUORNOS' EIGHTH
AND FOURTEENTH AMENDMENT RIGHTS.
This court has considered cases where defendants have been sentenced to death for murdering prostitutes. Crump v. State, 622 So. 2d 963 (Fla. 1993); Long v. State, 610 So. 2d 1268 (Fla. 1992). Until now, however, it has never faced the reverse situation where a prostitute has been sentenced to death for murdering some of the men who used her. While there is a certain symmetrical appeal in treating male and female defendants similarly, the latter case has one distinction the former does not. Men usually seek out women for sex, and they must know that they expose themselves not only to diseases of a11 sorts, but they face the possibility of violence. In short, prostitution involves an inherent element of danger to them. Accentuating that risk, a victim, particularly an elderly one, who picks up a stranger hitchhiking about the state, as Wuornos probably was, shows a disregard for his safety that boarders on foolish.
One of the statutory mitigating factors is that the "victim was a participant in the defendant's conduct or con sented to the act." §921.141(6)(~) Fla. Stats. (1994).
Unlike the other statutory mitigators, however, this court has never reviewed a case where the sentencer either found it or rejected it. Justice England ina concurring opinion (in which two other members of the court joined) in the old case of Chambers v. State, 339 so. 2d 204 (Fla 1976) came closest to finding it applied. There, the defendant and his girlfriend/victirn "shared a long-standing sad masochistic relationship which included severe and disabling beatings."
More significantly, on the day of her murder, the girlfriend had bailed her boyfriend out of jail. Showing his appreciation, he beat and drug her through the streets of Sarasota. She died five days later from the injuries she had received.
One consents to his or her own death in cases of Russian roulette, but this mitigator has broader application. A victim who knowingly disregard his personal safety or who follows a course of action leading to his death that a reasonable, prudent person would eschew has participated in the defendant's conduct.
The sentencing court in this case recognized that this mitigator might apply, but for two reasons it refused to find The victim, Antonio, neither participated in the Defendant's conduct nor con sented to her act. The Court is convinced that the defendant's statements that she had already pulled the gun'before he attempted to struggle with her for it, that, not succeed ing, he had turned to run when and had had fallen down when she began to shoot him. (sic) Thus the Court is convinced that the victim was in the act of attempting escape when he was killed, certainly not participating in her conduct. Even if the Court found that he had at some prior time of his killing, agreed to engage in prostitution is not a sufficient basis for establishing this statutory mitigating circumstance. (sic)
(R54).
The court, thus, rejected victim participation because (1) Antonio was not participating in Wuornos' conduct, and (2) even if he was, that provided no basis for finding this mitigator.
But the victim had followed a course of action ride with danger, and it was one that he should have recognized. First, he picked up Wuornos somewhere, most likely at a rest stop or filling station, in central Florida. He obviously wanted sex from her because he was nude when found (T363). Finally, he was 62 years old and a reserve police officer (T 515, 525).
Surely a man that old and who presumably had some police training must have realized the risks he was taking when he picked up this stranger. Thus, by the time he stopped his car, took off his clothes and climbed into the back seat of his car, he was participating in the events that would lead to his death.
Moreover, this conduct, for the reasons discussed, provides basis for finding the victim participant mitigator.
Any reasonable person would have recognized the latent danger in picking up a prostitute, especially a stranger found ina strange place. Violence for the man and the woman lurk just beneath the surface, and Antonio must have realized it.
The court, therefore, erred in rejecting this mitigating factor, and this court should reverse the trial court's sentence and remand fora new sentencing hearing.
CONCLUSION
Based on the arguments presented here, the Appellant, Aileen Wuornos, respectfully asks this honorable court to reverse the trial court's sentence and either remand fora new sentencing hearing before the trial court alone or witha new jury.
Respectfully submitted,
NANCY A. DANIELS
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
DAVID A. DAVIS
Assistant Public Defender Fla. Bar No. 271543 Leon County Courthouse Fourth Floor, North 301 South Monroe Street Tallahassee, Florida 32301
(904) 488-2458
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to Margene A. Roper, Assistant Attorney General, 444 Seabreeze Boulevard, Fifth Floor, Daytona Beach, Florida 32118, and a copy has been mailed to appellant, AILEEN WUORNOS, # 150924, Broward Correctional Institution, Post Office Box 8540, Pembroke Pines, Florida 33024, on thispfZFlwday of November, 1994.
DAVID A. DAVIS
FILED
IN THE SUPREME COURT OF FLORIDA SID J. WHITE
AILEEN CAROL WUORNOS,
Appellant,
V. CASE NO. 81,498
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE THIRD JUDICIAL CIRCUIT,
IN AND FOR DIXIE COUNTY, FLORIDA
ANSWER BRIEF OF APPELLEE
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
MARGENE A. ROPER
ASSISTANT ATTORNEY GENERAL
FL. BAR. #302015 444 Seabreeze Boulevard Fifth Floor Daytona Beach, Florida 32118
(904) 238-4990
COUNSEL FOR APPELLEE
TABLE OF CONTENTS
PAGES:
I, I1 & 111. THE TRIAL COURT PROPERLY
DETERMINED THAT WUORNOS' PLEA WAS BEING ENTERED
INTELLIGENTLY AND VOLUNTARILY; THE ISSUE OF
INEFFECTIVE ASSISTANCE OF COUNSEL CANNOT BE
RAISED ON DIRECT APPEAL IN THE ABSENCE OF THE
ISSUE BEING DECIDED BELOW AND RECORD SUPPORT
FOR THE CLAIM AS TO ALLOW PROPER APPELLATE
IV. THE TRIAL COURT PROPERLY FOUND THAT
WUORNOS COMMITTED THE MURDER INA COLD,
V. THE CLAIM THAT THE TRIAL COURT ERRED IN
INSTRUCTING THE JURY ON THE COLD, CALCULATED
AND PREMEDITATED AND AVOID LAWFUL ARREST
VI. THE TRIAL COURT DID NOT IGNORE EVIDENCE IN
MITIGATION BUT MADE A REASONED DETERMINATION
THAT THE OFFERED MITIGATION WAS NOT SUPPORTED
BY THE GREATER WEIGHT OF THE EVIDENCE AND IF IT
WAS THEN THE AGGRAVATING CIRCUMSTANCES
OVERWHELMINGLY OUTWEIGHED THE EVIDENCE
VII. THE SENTENCING COURT DID NOT ERR IN NOT
FINDING THE MITIGATING FACTOR OF EXTREME MENTAL
VIII. THE TRIAL COURT DID NOT ERR IN REFUSING
TO FIND IN MITIGATION THAT THE VICTIM
TABLE OF AUTHORITIES
CASES: PAGE:
Arbelaez v. State, Boykin v. Alabama, Cannady v. State, Christian v. State, Cruse v. State, Espinosa v. State, Hardwick v. State, Hardwick v. State, Jackson v. State, Johnson v. State, Kelley v. State, Koo v. State, Mann v. State, Maxwell v. State, McElvane v. State, Mikenas v. State, Muhammed v. State, Nibert v. State, Provenzano v. State, Roberts v. Sinqletary, Robinson v. State, Rogers v. State, Rosemond v. State, Sanchez-Velasco v. State, Sireci v. State, Spencer v. State, State. DiGuilio, Steinhorst v. State, Walls v. State, Wickham v. State, Wuornos v. State, Wuornos v. State, OTHER AUTHORITIES:
Report of the Florida Supreme Court Gender Bias
STATEMENT OF THE CASE AND FACTS
Appellee accepts appellant's statement of the case and @ facts subject to the following inclusion and corrections.
The robbery and pecuniary gain aggravating factors were consolidated as one aggravator (R 873).
The aggrgavator that the murder was committed to avoid a lawful arrest was based on Wuornos' videotaped statement that Antonio fell down when they were struggling and then he attempted to run away and she shot him (R 874).
Wuornos has four convictions for first degree murder. She was convicted of the first degree murder of Richard Mallory on December 1, 1989, and robbery witha firearm in Volusia County Case Number 91-257-CF (R437 - 438). Mallory was shot multiple times in the torso witha small caliber handgun. He was found along with his personal belongings partly covered ina remote area. His vehicle was taken and abandoned (R 439). She was convicted of the first degree murder of Troy Burress and robbery witha firearm between July 3 0, and August 4, 1990, in Marion County Case Number 91-463-CF. Burress was also found with multiple gunshot wounds to the torso from a small caliber handgun and was dumped ina remote area of Marion County (R 441-442).
Personal effects, as in this case, were not found on or near the body but were located later in other remote wooded areas (R 442).
She was convicted of the September 11, 1990, first degree murder of Charles Humphrey and robbery witha firearm in Marion County Case Number 91-304-W. Humphrey was also found with multiple gunshot wounds to his body ina remote area of Marion County (R 440-441). She was also convicted of the first degree murder of David Spears and robbery witha firearm in Citrus County Case Number 91-112-CF. Spears was shot several times witha small caliber firearm to his body, which was dumped ina remote wooded area. His pickup truck was not at the scene where the body was later found along the highway in Citrus County (R 443). The murder of Walter Gino Antonio was the last (R 444). Wuornos was also convicted in 1981 of the armed robbery of a convenience store (R 415).
As to mitigating circumstances, the sentencing judge indicated that!'The mitigating circumstances in this court ' s conclusion are not supported or established by the greater weight of the evidence. However, if they were, they deserve only the slightest of weight." (R 874).
When Walter Gino Antonio left on the morning of November 18, 1990, for Montgomery, Alabama, he was not carrying any firearms (R564). He was carrying one hundred and forty dollars in cash and credit cards (R 391). When Antonio's body was found the next day he was clad only ina pair of socks (R 352). His body was found on Barrow Pit Road which is ina remote wooded area (R 352; 363). He was found laying on his left side (R363).
He had been shot three times in the back with hollow point bullets from a. 2 2 caliber gun (R383). There was also a gunshot wound to the back of the neck at the base of the hair line (R 363). The shot to the mid line of the back injured the spinal cord and would have caused immediate paralysis. The remaining two shots to the back were fatal as they went through the lungs and major vessels and caused massive internal bleeding (R 458).
He would have been conscious fora period of time after these @ shots and would have died within thirty seconds or a minute (R 459). The three back wounds were at close range, the gun being about four inches from the skin (R 464; 377). A paper dinner napkin and section of a penny wrapper were found near the body
(R 375). There were no personal affects (R 377). Antonio used dentures but they were not found in his mouth (R 460). They may have been removed after he was dead. IT is possible he could have been identified by the teeth. Some dentures have social security Number or the names of the owners engraved on them (R Ina telephone call to Tyria Moore prior to Wuornos' arrest Wuornos indicated that she was going to go down in history (R 770). She told Moore why she did it: "Because Fell so fucking in love with you that I was so worried about us not having an apartment and shit. That I was sea-red that we were going to lose our place, believing we wouldn't be together. I know it sounds crazy but its the truth." (R 771; SR 5 0).
The police eventually arrested Wuornos for the murder of Antonio and also charged her with robbing him (R 1). She confessed to these crimes. The relevant portion of the videotaped confession to the murder of Antonio is set out below
(SR 56-66).
O'NEIL: I told her that...the only thing I can say is she is totally focused on her friend and her friend not getting in trouble and trying to -- (inaudible)...
WUORNOS: She doesn't. (Inaudible)...I mean, she...wasn't involved in anything.
O'NEIL:.
..about being drunk and raped and stuff. She just insist that she wants to continue talking.
HORZEPA: Okay.
MUNSTER: All right. Okay. Now, you told me about, uh, about the guy that worked for HERS and what you did and all.
Now, the last one, and that's when Ty went...
WUORNOS: When Ty left and I got constantly drunk and everything ' causeI was jumped out that she was up there and I...I was lonely, and I went hitchhiking to make some Mooney. 1 cannot remember this - - (inaudible)...
MUNSTER: What ifI -- (inaudible)?
WUORNOS: I know it's a Grand Prix. I don't know where I picked him up at or anything.
MUNSTER: What happened when he did pick you up?
WUORNOS: I don't remember. I was drunk as shit. This one I don't remember.
This is a blackout, man. I do no. +.not remember anything.
MUNSTER: Well, do you remember having the ring afterwards? The ring? Man's ring? You gave it to the pawn shop.
WUORNOS: Okay, I remember a man's ring...I can't remember his face. I can't remember nothing'.
MUNSTER: Nice, big flash light? Badge?
WUORNOS: Oh...now I remember. Okay. I remember. Okay. I remember. All right. All right. Now, I remember.
Okay. He was an older fella, a little short guy. All right. Okay. That one...okay, I was drunk as could be. I must had a case of beer on this one. I was drunk as could be. And again, this guy, I'm askin' if Ican make some Mooney. And he said, Sure, you know, and we get out in the woods. Now I remember. Okay. We were WAY out in the woods... some, oh, God, I don't know where. Somewhere way, way, WAY out in the woods. And uh, we stripped on that one. And then he got his pants and was starting' to come toward me to do my little deed that I'm supposed to do, hustling and everything. He got out his little...his, uh, he had his wallet out of his back pants pocket, and he said he was a cop. Uh-huh. Now I remember.
Same thing. You know, like, I'm a cop, he said. And he said, if you...I could arrest you and everything like this.
But if you want to, you can have sex with me for free, and I'm gonna let you go and all this other jazz and shit like this. 1 said, I am sick and tired of people comin' up to me and telling' me they're a cop, and I, don't think you're a cop. He said, Yes, I am a Cop. Said, Na. You can get a badge like thatina detective magazine. So anyway, I started to get outta the back seat, and he got outta the back seat and ran around in front of me, and he said, Listen, man, you are going to suck my dick or you're gonna have sex with me.
You're gonna do something. I said, No, I'm not. And 1...and that's when he...forget the struggle, we didn't even struggle. I whipped out my gun on that one. He said -- and then after I whipped out my gun, then we struggled.
And then I shot him.
MUNSTER: How many times did you shoot him?
WUORNOS: Twice, I think.
MUNSTER: Okay. Now, how did you feel when you thought he was a cop?
WUORNOS: At first, I... 'cause that one guy, that HERS guy telling' me he was a cop, I said to myself, this...he's a...that guy was an HERS guy. So this is another faker. He's just tryin' to get a free piece of ass. And that's all I thought.
MUNSTER: This job?
WUORNOS: Right.
MUNSTER: Okay.
WUORNOS: Yeah, it pissed me off 'cause he..he...Said, this guy's a faker.
He's tryin' ta get a free piece of ass.
MUNSTER: Yeah.
WUORNOS: Yeah.
MUNSTER: Well, when you shot him the first time, what did he do?
WUORNOS: Mmmm, well, when we were struggling with the gun and everything else, again, he fell on the ground and he started to run back...run away. And I shot'em in the back...right in the back. And then I...
MUNSTER: What did he (lo then, after you shot him in the back?
WUORNOS: He just kinda looked at me for a second, and he said...he said something' like, uh...shit. What did he say? I think he said, You cut...or something like that. Some...some... you cut or something' like that. And I said, You bastard, and I shot him again.
MUNSTER: And then what happened?
WUORNOS: Then I just got in the car and took off.
MUNSTER: Did he say anything more after you shot at him?
WUORNOS: No.
MUNSTER: Did you shoot him in the back again?
WUORNOS: Mmmm.
MUNSTER: Or did you shoot him some place else?
WUORNOS: I think I shot'em in the back one more time.. m...m. Shot him...near the head or something' like that. I just kinda randomly shot. I kinda turned my head and shot.
MUNSTER: Did he ask you how -- (inaudible)?
WUORNOS: No.
MUNSTER: Uh...all right, now...
WUORNOS: Did he survive?
MUNSTER: No.
WUORNOS: AM.
MUNSTER: Now, where did you go in his car after that, when you drove outta there?
WUORNOS: I drove away...nude. I 'm driven' away nude and I stop, got some of my clothes on and I proceeded to go further. And then the damn car stopped, and I said, What the hell's wrong with this car. And then I started it up again, and it just started up. I don't know why it stopped, but it started back up and Just started down the road.
And I went back to that Fairview Motel while Ty was in Ohio, and I don't know...I don't even remember anything about -- hardly about that one. I don't know ifI got anything outta the car or what. I don't even remember that. I don't hardly even remember. Oh, yeah, I got a suitcase out. That's right.
Okay.
MUNSTER: What happened to that suitcase?
WUORNOS: I think I kept the suitcase, too. (Inaudible.)
MUNSTER: Did you keep anything else that belonged to him, like the badge?
WUORNOS: Oh, I threw all that stuff out. 1 threw everything out.
MUNSTER: Okay. You know...
WUORNOS: What was he?
MUNSTER: Uh, he...he had been a reserve cop down in Brevard County. What happened to his teeth?
WUORNOS: Oh. I took everything outta the car and just threw everything in the woods.
MUNSTER: His teeth?
WUORNOS: Yeah, everything. I mean, I took...
MUNSTER: You know he still had sex with you, and he didn't have his teeth in?
WUORNOS: His...no,, he didn't have his teeth in at all. They were in his glove box.
MUNSTER: So you went in his glove box lookin' for stuff?
WUORNOS: Yeah, and I took everything out and I threw it out in the woods.
MUNSTER: Near where his body is or someplace else?
WUORNOS: Oh, miles and miles away. I couldn't even tell you where.
MUNSTER: All right. Now there was a penny wrapper that was found near there.
WUORNOS: Penny...
MUNSTER: A penny wrapper, yeah. Do you remember ripping' open a penny wrap or anything? Did he have any pennies in his packet?
WUORNOS: No, I don't recall anything...it probably was in the glove box ar something'.
MUNSTER: And do you remember taking that out or takin' out some pennies or anything like that?
WUORNOS: Uh-uh.
MUNSTER: Right near where his body was?
WUORNOS: No.
MUNSTER: Okay. Uh, is this the guy whose ring you took to pawn? You don't remember?
WUORNOS: No, I don't remember that.
MUNSTER: Okay.
WUORNOS: I don't remember at all.
MUNSTER: All right.
WUORNOS: I doh't know whose ring it was.
MUNSTER: I'm sorry?
WUORNOS: I don't know whose ring it was.
MUNSTER: Okay. All right. Now how about -- (inaudible)...
WUORNOS: Oh I MUNSTER: Oh, what?
WUORNOS: There was. Yeah, it was...yeah, okay, he had agold chain and stuck i-t on the seat. Yeah.
MUNSTER: He took it off and stuck it on the seat? Why'dhe do that?
WUORNOS: Because...I mean, I took the ring off his finger, but he took his gold chain and stuck it on the seat.
Yeah.
MUNSTER: All right. You took the ring off while he was alive OT dead?
WUORNOS: Uh...my God...I think he was...not dead. I don't think he was dead when I did.it. I..
MUNSTER: Had you already shot him when you took the ring off?
WUORNOS: I don't think so.
MUNSTER: Okay.
WUORNOS: And I said, like...I probably said something' back there as drunk as I was in my mind, I would probably say something' like this...why, you fuckin' bastard. Let me get something' outta this. You know, something' like that.
In regard to witness elimination, Wuornos told Detective Horzepa that she had killed the men to silence them because she knew that if she got caught she would be back tracked and they would find out about her and she would not be able to hustle.
(1)1 She also indicated she used the saw gun in each killing that she had stolen from an old boyfriend (R 501). Wuornos indicated that she took the victims' property out of pure hatred and also revenge and she wanted to get her Mooney's worth. She admitted to using aliases and yawning numerous items and throwing the pistol, handcuffs and flash lights into Rose Bar (R 502). She flippedflopped as to the reasons why she killed the men: in self defense; witness elimination; one thing and then another (R 507).
She gave two different version as to the murder of Richard Mallory. One reason was because she thought he was not going to pay and the other was that he would not take his clothes off (R After Antonio's murder Wuornos was seen near her hotel room driving a car similar to Antonio's. She parked it behind the motel. It had no tag (R 419). Wuornos stripped the car of everything in it and threw the items into the woods (SR 62).
Antonio's wallet, eye glasses, clothing and personal effects were found on a fire break dirt road off Highway 27 between Perry and Mayo on November 27, 1990 (R 393-396). Venture powder and pieces of a plastic Grand Prix emblem were also found (R 399). The abandoned car was found in the Scottsmore area of Brevard County on November 2 4, 1990 (R 391). All identifying deals and bumper sticker were removed. There was evidence that fingerprints had been wiped down (R 392). Budweiser cans and Marlboro light cigarette butts were found with the car (R 392; 469). A piece of paper concealed the WIN number (R 469). The doors were locked (R 470). A few pennies and factory change holder were found in the car. The tag was in the trunk (R 472).
Wuornos pawned Antonio's diamond ring at the Okay Pawn Shop in Daytona under the name Carrier Green. Items relating to other unsolved homicides had also been pawned (R 404-409). Antonio's mechanic wrench, Igloo cooper, billy club, key to handcuffs he had been carrying, flash light and Remington shaver were found in a locker rented by Wuornos at Jack' Mini Warehouse in Daytona (R 429-433). Antonio's pocket knife, handcuffs and two flash lights, along with the murder weapon were retrieved from Rose Bay near where Wuornos had lived. Tyria Moore showed police where Wuornos had disposed of the weapon (R 435; 449; 452; 480-81).
Prior to Wuornos propositioning Bobby Cops he had gone to a drive-in window at the bank and cashed a couple of checks to pay his insurance (R 741). When Cops rejected Wuornos' first proposition he could tell it upset her. She started comb ing her hair. He saw a gun handle in her puree (R 472). The way Wuornos was acting scared him (R 744). Wuornos told Cops witha tag like "Cops" she would remember him (R 745) She told him "I'll kill you like I did all them other old mother fucker. " (R 745).
It was Wuornos' grandmother/mother who died an alcoholic after Wuornos had left home, not Wuornos' biological mother. It was her biological father who committed suicide while in prison or on a psychiatric ward (R 643; 690-91). Wuornos' aunt/sister Lori Grody testified that there were no complications at Wuornos' birth (R 622). Wuosnorj had no devel"oprnenta1 problems as child.
Six people lived in their house, Wuornos' grandparents/parents, Lori Grody, and Wuornos' two brothers, Barry and Keith Wuornos (R 623). The house was large enough to comfortable house them and had adequate Walter, heat and utilities. It was located in the suburbs of Troy, Michigan (R624). Wuornos got along with the parents when she was young but became rebellious asa teenager (R 624). Wuornos was adequately cared for. She was not inappropriately or excessively disciplined. The children were all punished the same (R 626). The siblings were grounded or got span kings. Wuornos was never severely beaten or burned. Grody knew of no sexual abuse of Wuornos by the parents (R 625).
Wuornos' biological mother claimed she was physically and sexually abused by her father bu-t Wuornos has always denied being sexually abused by the grandfather/father (R 691.). State ' s Exhibit #50 is an admission SUNUTH~Y from Florida Correctional Institution dated June, 1982. It contains statements by Wuornos.
She indicated that her father was a win but never became violent. Wuornos never complained to Grody of any abuse (R 626).
The children got along normally growing up (R 626). Both Wuornos and her brother Keith were adopted by the grandparents (R 626).
Grody and Wuornos did not learn that Wuornos was not Grody's real sister until Grody was around ten years old and Wuornos was seven
(R 635). The grandparents did not treat Wuornos and Keith any differently than the natural children. Wuornos got along fine with other adults when she was growing up (R 627). Wuornos had arguments with her friends every day but she still kept those friends. Grody did not recall Wuornos having any head injuries as a child. As a teenager Wuornos became rebellious and 0 developed a very bad temper. She did not want to follow the rules of the house (R 628). Wuornos never suffered any serious medical problems (R 629). She was never evaluate by mental health professionals while she lived at home (R 630). To Grody's knowledge no one in the family has been diagnosed or treated for any mental or emotional problems. Neither the grandparents nor Grody were ever arrested or had trouble with the law (R 632).
Wuornos ended up ina girls' reformatory. She was truant in school. She ran away at age twelve (R 637). Wuornos and Keith had caused trouble and rim away many times. They again said that they were going to run away. The parents told them that they had a choice. They could stay or leave. but if they left this time it was for good and they could not come back because the parents couldn't take any more. Wuornos left for good when she was fifteen or sixteen years old (R 633; 635-636). Wuornos became pregnant at age thirteen and had a son. She hid her pregnancy from the parents for seven months (R 637). She was sent to a home and the baby was given up for adoption immediately (R 638).
Grody denied that Wuornos had intercourse with her brother Keith
(R 638). Grody did not recall the father ever beating Wuornos with a belt (R 638). The grandmother eventually died of complications from alcohol. She did not drink, however, while the children were growing up (R 648). Shortly after the grandfather/father killed himself. Wuornos was already on the Streets by then (R643). When Wuornos was around nineteen or twenty years old she told Grody she had been a prostitute.
Wuornos drank beer on weekends arid smoked marijuana (R 644). She tried LSD once or twice but didn't like it (R 645). She also took owners. Wuornos once made a trail out of afort with oil and gas and lit it, burning her: face and Grody's leg (R 645).
Wuornos has light starring on her forehead asa result (R 646).
Forensic Psychologist Dr. Donald Delbeato evaluate Wuornos on August 7, 1992, at the request of the Pasco County court at the New Port Richie Detent.ion Center (R 575). He was to evaluate her as to her capacity to appreciate the nature of the decision to waive her rights to future court appearances. AS part and parcel of that he examined her on such things as her competency, sanity, and whether or not she had mental illnesses (R 576). DK.
Delbeato found that Wuornos was not. psychotic. Wuornos wanted to waive her right to appear at trial and told Dr. Delbeato "I am point-blank guilty. I killed them in cold blood. I know what 0 I'm doing.'' (R 579). Wuornos said "Give me the death penalty or give me life. But going through all of this is killing me. Just let me die in peace. I'm guilty, anyway." (R596). Wuornos understood the difference between right and wrong. She was able to disclose facts and relate to her attorney. Dr. Delbeato found her competent to proceed and to waive her appearance. Dr.
Delbeato diagnosed Wuornos as having an antisocial borderline personality disorder (R 580). She is immature, impulsive, demanding, irritable, disruptive, provocative, emotionally explosives, has defect in conscience and has antisocial features
(R 581). Such traits do not affect a person's ability to deal with right or wrong, to stop their behavior or not know the consequences (R 581). A person suffering from borderline personality disorder knows what they are doing and either knows the consequences of their actions or doesn't care. Assaultive behavior is common (R 582). Dr. Delbeato did not believe Wuornos' capacity to conform her conduct to the requirements of law was substantially impaired (R 604). He also did not feel that her capacity to understand the nature and consequences of her actions was substantially impaired (R 605). Wuornos has the ability to choose to do wrong (R 606). Not all of the borderline or antisocial types commit crimes or harm people (R 607).
Borderline personality disorder is a very common condition.
In the past such a person was called a sociopath, psychopath, antisocial personality or said to suffer from a character disorder. Dr. Delbeato felt that Wuornos suffered from extreme emotional disturbance but did not suffer from mental illness (R 503). When a person has an impairment of conscience or history of criminal activity borderline personality disorder -aes on an antisocial aspect and the term of art becomes "borderline antisocial personality disorder." (R 584).
Wuornos' mental health expert did not say that she behaved like a three-year-old. A previous psychologist testified that Wuornos had extremely primitive coping mechanism, like a three year old child (R 696).
Dr. Krop was unable to determine if Wuornos' capacity to conform her conduct to the requirements of the law was substantially impaired because Wuornos would not discuss the circumstances of the Antonio homicide with him (R 702-703). In.
regard to whether 'Wuornos suffered from an extreme mental or emotional disturbance Dr. Krop opined that she is seriously emotionally impaired (R 708).
SUMMARY OF ARGUMENT
1. Where the formalities for properly accepting plea of guilty are compiled with and Wuornos indicated she had fully discussed the charges and defenses with counsel and was satisfied with her attorney's services further inquiry was not required simply because Wuornos evidenced an intent to utilized post conviction remedies and where counsel performed effectively and received a close 7 to 5 vote for death further inquiry was unwarranted based on counsel's belief he was inexperience and would not have represented Wuornos had she chosen to go to trial, and counsel was not thereby rendered ineffective in his performance.
2. Wuornos hitchhiked, posed as a damsel in distress, and lured older men to remote areas to rob and murder them. That she 0 was incidentally prostitute, who would also trans act business ina remote area, does not preclude the finding of the cold ness factor for a heightened]-y Premeditated robbery/witness elimination murder. The cold ness of the crime is apparent from Wuornos shooting of the victim four times in the back and her disdain of the victim, referring to Antonio and other victims simply as "old motherfuckers." That Wuornos calculatedly and premeditatedly killed is apparent from the fact that she armed herself in advance, lured the victim to a remote area and shot multiple times to the back and neck, and continued to shoot despite lack of resistance asa matter of course.
3. Wuarnas failed to object to the cold, calculated and premeditated instruction and nggravator and any challenge on the basis of vagueness or overbreadth is procedurally barred. The murder was CCP under any definition. Even eliminating the CCP factor death is the appropriate penalty considering the remaining aggravating fat-ors and absence of mitigation.
4. There was too much purposeful conduct on the part of Wuornos in this and previous murders for the court to have found or given significance to intoxication asa possible mitigator, Since Wuornos' motive was robberylwitness elimination, she knew the difference between right and wrong, knew the consequences of her behavior and could stop it and admitted to Dr. Delbeato she had killed the men in cold blood, affects of a borderline personality disorder had no casual relationship to the homicide and was not mitigating. Any error in not finding mitigation is harmless considering the overwhelming number of aggravators,
5. Testimony of psychiatrists that Wuornos was suffering from some emotional impairment did not warrant a finding that she acted under extreme mental or emotional disturbance at the time of the murder.
6. The victim was killed while running from Wuornos and hardly participated in the acts leading to his death.
I, I1 & 111. THE TRIAL COURT PROPERLY DETERMINED THAT WUORNOS '
PLEA WAS BEING ENTERED INTELLIGENTLY AND VOLUNTARILY; THE ISSUE
OF INEFFECTIVE ASSISTANCE OF COUNSEL CANNOT BE RAISED ON DIRECT
APPEAL IN THE ABSENCE OF THE.ISSUE BEING DECIDED BELOW AND RECORD
SUPPORT FOR THE CLAIM AS TO ALLOW PROPER APPELLATE REVIEW.
At plea proceedings held on October 28, 1992, Wuornos pled straight-up. Her plea was reduced to writing and tendered to the court (SR 2). Wuornos indicated under oath that she had signed the Offer of Plea after her attorney had explained it to her, that there were no questions in her mind about it, and that she was satisfied with Mr. Glazer as her defense attorney. She indicated that "due to the circumstances" he had done all that she felt any capable attorney would have done in depending her against these charges (SR 5). She further indicated "he has done right" and could not recount an instance where she has questioned why he had done something. It was Wuornos who had contacted Glazer (SR 6). Mr. Glazer was not court appointed. Wuornos understood that she was entering a plea of guilty to the charges of murder in the first degree and robbery while armed witha firearm. Wuornos was aware that the highest possible penalty that could be imposed on her for first degree murder is death by electrocution. Wuornos indicated that Mr. Glazer had not informed her of the maximum penalty for robbery while armed with a firearm. There was an off-the-record discussion between Wuornos and her attorney (SR 7). Wuornos indicated that Mr.
Glazer informed her the maximum penalty could be "fifteen or thirty, habitual, something like that." The court informed Wuornos that "it could be as much as thirty years of imprisonment and if you are sentenced as an habitual felony offender, it a probably would understood.
be even more. I' Wuornos indicated that she The State Attorney then interjected that the robbery as charged in the indictment carries a penalty of up to life.
Since it is witha firearm it is a first degree punishable by life. The trial judge indicated that "that was the Court's thinking" but he thought there might be something special about this case. The State Attorney indicated that there wasn't.
Wuornos indicated that she now understood that the maximum penalty for robbery while armed witha firearm could be life imprisonment (SR 8). Wuornos understood that pursuant to the Offer of Plea the only obligation she would incur would be to submit to the lawful orders, judgment and sentences of the court and that there were no other agreements about the penalty (SR 9).
The court inquired as to Wuornos' education and she indicated that she had attended school until the ninth grade, was self educated and did her own reading. She read the provisions in the Offer of Plea. The court inquired about the statement that no one had threatened or scared her into making the plea or promised her anything in order to induced her into making the plea.
Wuornos responded that "they did in my confessions, but not in this court right here today, no." (SR 9). Wuornos indicated that her attorney had discussed with her whether or not the court would permit her confessions to be heard by a jury, whether they would be admissible in evidence. Wuornos was satisfied with his counsel concerning that-. Wuornos indicated that she understood that by pleading guilty she gave up constitutional rights to trial by judge or jury, to remain silent, to confront witnesses, to the assistance of counsel during trial, and to compel witnesses to testify (SR 10). She further understood that by entering a plea she was giving up the right to appeal the issue of guilt but was not giving up any of her rights with respect to the penalty phase (SR 11-12). Wuornos understood that paragraph five of the Offer of Plea indicated that she has had sufficient time to consider the charges against her, the possible defenses, the advice of her attorney, the waiver of her rights upon pleading guilty, and to reflect upon the consequences of her plea. She understood that she was indicating that she did not need more time to consider her plea, wanted to proceed with the plea and was offering herself to the court for other questions (SR 12). She understood there no agreements about the death penalty. The court inquired as to whether Wuornos knew the victim Walter Gino Antonio. She responded "Oh, he just picked me up, hitchhiking. I never knew him before." She remembered what happened between her and Antonio. The judge explained to Wuornos why he had asked her about the victim.
Sometimes, when I am inquiring into a plea, I ask a person in your circumstances, "What did you do that makes you willing to plead guilty to murder in the first degree? " And sometimes folks such as you, in the circumstances you are in, really either are not able to da it because they might have been either partially intoxicated or very mad, or for some reason they don't really clearly remember, I can also ask the state attorney to recite aloud what, the State would expect to be able to prow were your trial being held before a jury as LO whether you are guilty of murder in the first degree or not. And I'll let the state attorney make that recitation. And then, when he finished, I will ask you, "Do you agree that if a jury were to hear your case, beginning today, and, say, the rest of this week, would you expect the kind of evidence the State has spoken of to be brought before the jury?"
(SR 13-14).
The state then set forth the factual basis for the plea.
Back on November the 18th of 1990, the victim, Mr. Walter Gino Antonio, left his home in Cocoa en route to Birmingham, Alabama. The following day, November 19th, 1990, his body was found approximately eight and a half miles north of Cross City off of highway 19.
Further investigation revealed he had been shot three times in the back and one time in the back of the head with a.22-caliber firearm, using hollow-point ammunition. An extensive investigation was done. I won't go through all of the details of it. Mr. Glazer and Ms.
Wuornos both have been through pleas before in this same -- not in this case, but in related cases. But suffice it to say, the victim's gold nugget ring, which had been removed from him by Ms.
Wuornos at the scene, was recovered down ina Volusia County pawn shop where she had pawned it under the name of Cammie Green. Other items belonging to Mr.
Antonio were subsequently found in the search of a mini-warehouse locker that belonged to Mr. Antonio (sic), to include an electric shaver, a light, an Igloo cooper, some tools, and some handcuff keys. Also found in the river, that she admitted she had put these items and other evidence suggests that she put some items, was the murder weapon itself, a.22-caliber revolver; a Mag light, a set of cuffs, and another light belonging to the victim, Mr.
Antonio. Ms. Wuornos did give a confession in this case wherein she admitted that she did kill Mr. Antonio.
That is abriefrecital of the facts.
There is far more to it, but I think that would suffice for purposes of this Defense counsel indicated that the State Attorney's rec tat ion was consistent with what his own investigation of his clients case had shown (SR 15). Wuornos indicated that the state could bring such evidence before the jury by means of live witnesses, papers and documents (SR 18). She first opined that it may not be truthful. She also indicated that!'I have an attorney here that can also prove some -- possibly some various statements and articles and everything they are lying in. That's all they have been doing anyway. (SR 17). Mr. Glazer then agreed that the court's inquiry was thorough and that there was nothing more that ought to be asked bearing on the voluntariness (SR 18). Wuornos 0 admitted that she had pled guilty to similar crimes in other courts (SR 2 0). The court then made an inquiry into Wuornos' mental status to make sure that she was not under any medication and was not suffering from any mental illnesses (SR 20). Wuornos indicated that she doesn'ttake anything, doesn't believe in drugs, had not had any medications in the last twenty-four hours, not even as much as an aspiring tablet. She indicated she has never been treated for mental illnesses of any kind and has never been an a psychiatric ward (SR 21). Defenses counsel indicated and Wuornos agreed that she had recently been psychologically evaluate by two doctors in Pasco County in July and August and both doctors found her competent to proceed. Wuornos indicated that it was her desire that the court accept her plea of guilty as offered. The court accepted her plea finding it to have been freely and voluntarily made with knowledge of the charges against her and with an understanding of the consequences of her plea.
The court found the plea was supported by a factual basis. The court concluded that Wuornos was under no mind-altering medications and had recently been found by competent experts to be in complete control of her faculties with an understanding of what was going on about her (SR 2 2 - 2 3).
Wuornos waived her right to be present at any further proceedings except for sentencing (SR 23-27). Defense counsel asked the judge to permit Wuornos to speak to the court about "the sentence, adjudication and things like that." (SR 2 8).
Wuornos then made a statement.
Okay. The reason I'm not going to take this through trial is it is going to cost the county millions of dollars, and I feel that the county -- this would create a prejudice through the county.
And for me to get a jury that would not hate my guts, through the million of dollars where people are being laid off, lose their jobs, whatever, I don't want to hurt anybody in their lifestyle. And there is no way I would get a fair trial in this county because you-all can't afford it. I have already heard that there would be a whole lot of state workers laid off and everything in order to try me. I don't want that to happen.
So I'm just going to waive this off and -- because I know I would never get a fair trial, and it would just cost too much Mooney, and therefore I'd never receive a fair trial because the Mooney wouldn't be available and everything else. I would prefer to just waive it off, like I did with Marion, and save everybody their jobs and everything else. That's all.
(SR 2 8 - 2 9).
The judge then asked Wuornos what her reason for making the statement was (SR 29). Wuornos responded:
For Mallory's trial as everybody has seen now, finally realizing, I never received a fair trial. I was railroaded, and it was for the movie "Overkill." And the cops did a lot of covering of what really happened and -- about self-defense and everything else.
I'm never going to receive a fair trial in the state of Florida. They are going to continue to use a conspiracy and a frame-up and a setup against me for their movie "Overkill." And also they will not admit their guilt, what they have done, although I'm sure, within the future, we 11 find evidence to prove what they have done. I'm just not going to receive a fair trial at this time through the county systems because of what happened at Mallory's trial.
(SR 2 9 - 3 0).
Wuornos then continued:
0 And the Volusia County case was a total mockery. I mean, they just -- the judge was saying, "What shall I do, take out -- should we take our shotgun out and shoot at each other? Let's get the cameras rolling. We've got a movie to make here,'' and all kinds of stuff. He just did not care. And neither did the jury. The jury knew about -- all about the trial. I mean, my indictments.
They read about it in the newspapers, saw it on TV, saw the sliced tapes where self-defense was taken out on the news media. There was nine jury members, and the state attorney, Damore, asked the jury members, "Have you already formed an opinion of her?" And they all said yes, and they were not even excused off the bench.
(SR 3 0). Glazer was not Wuornos' attorney for the Volusia County case. Wuornos indicated that case was on appeal. The court asked if Wuornos remembered the judge telling her there wasn't going to be any appeal from this guilty plea. Wuornos responded that she was hoping that "eventually there will be new evidence brought out that will open up the case in each and every case. " The court pointed out that there are definite rules about new evidence and some new evidence can't be admitted (SR 31).
Wuornos was pretty sure she could prove evidence of police lying.
The judge informed Wuornos that the did not know what case he was coming down to hear today, knew nothing about her case, would be dedicated to her receiving a fair trial and that her attorney could move fora change of venue if her attorney could show she couldn't receive a fair trial there. Wuornos responded that a change of venue was not granted in the Mallory trial. The court pointed out any error could be the subject of a point on appeal (SR 3 3). The following colloquy then took place.
DEFENDANT WUORNOS: Well, you people, there's -- the public defenders, how am I -- I'm not even ready fora trial here. If you were to, quote, hire me a public defender, he knows nothing about me. I have not seen him. There is a whole lot of stuff involved that he would never be able to expose ina courtroom unless I have a private attorney -- which I'm working on right now, to get a private attorney -- and -- THE COURT: Let me interject. Didn't YOU tell me Mr. Glazer is a private attorney?
DEFENDANT WUORNOS: No, he is not the attorney I would look for. I would look for somebody who would take care of the case, such as -- MR. GLAZER: Ms. Wuornos understands that I do not have the capital experience necessary to take her case to trial.
THE COURT: Oh, MR. GLAZER: And if this case were to go to trial, I would immediately ask to withdraw because I could not possibly defend her in the way she needs to be defended.
THE COURT: Well, all right. I understand. What, if anything else, ought to be said along this line of subject matter?
MR. GLAZER: Not on this subject.
THE COURT: Have you said all you want to say?
DEFENDANT WUORNOS: Yes, sir.
THE COURT: All right.
(SR 33-34). Wuornos was then adjudged guilty of murder in the first degree as charged in Count I in Case 9 2 - 5 2 and robbery while armed witha firearm as charged in Count I 1 in Case 9 2 - 5 2
(SR 36).
Appellant's first three points on appeal are inter related and deal solely with the voluntariness of Wuornos' plea (Brief of Appellant p. 8). The inter related arguments will be addressed in one consolidated point.
Appellant concedes and the record demonstrates that the court conducted a thorough inquiry to determine if Wuornos intelligently and voluntarily was pleading guilty to the charged crimes (Brief of appellant p. 12). Appellant complains, however, that when the court learned of ME. Glazer's inexperience in capital cases it should have inquired further about the counsel he provided his client. Appellant speculates that because Wuornos indicated there was still a "whole lot of stuff" she wanted investigated and Glazer was not the attorney she would look for she never understood that by pleading guilty there would not be a further trial of any kind and she believed that if she had the right lawyer she would be able to present her case.
Appellant concludes that her plea was not intelligently made because she never realized the finality inherent in the guilty plea. Appellant further speculates that because there was an off-the-record discussion between Glazer and Wuornos after the court explained to her that there were definite rules about new evidence that Mr. Glazer had not told her that same new evidence can't be admitted. Counsel notes that even after the discussion Wuornos persisted in claiming that she could prove the police lied, a fact that would have questionable relevance at any post conviction proceeding, thus counsel's advice must have been misleading. Appellant contends that the court should have inquired with specificity about Wuornos' "unartkculated" defense and made sure that if she still wanted to plead guilty she knew she was abandoning it. Appellant further complains that the court never explained to her that by pleading guilty she would give up the right to cross-examine the police and expose fabrication. Appellant also alleges that Wuornos was confused about the impact her plea would have on future litigation and it is unclear what her lawyer told her and what she thought she could do after pleading guilty. Appellant concludes that the court should have had Glazer withdraw and let Wuornos hire an attorney familiar with capital case defenses or appointed a public defender or reiterated that a guilty plea would forever forfeit her right to present evidence of her innocence. Wuornos argues that the record lacks an affirmative showing that she intelligently and voluntarily pled guilty.
The state would first point out that Wuornos is no notice at entering pleas. Wuornos admitted that she had pled guilty to similar crimes in other courts (SR 20). See, Wuornos v. State, 644 SO. 26 1012 (Fla. 1994). In closing argument counsel argued that Wuornos was not asking for anything and wants to die for her crimes. Counsel continued:
In four cases she gave up her right to got to trial, because she was guilty and she just said she's guilty. She IS confessed and cooperate with the police to the best of her ability. And she's given up her right to be here. She's given up her right to spend all kinds of Dixie County Mooney on a trial. And she's given up the right to test whether you believe she acted in self defense.
(R 42).
Counsel pointed out that a theme in Wuornos' confessions was self-defense but the police were not interested in giving her a reason to exonerated herself in her confession (R 44-45).
Counsel further pointed out that it was Wuornos' opinion and belief that these men had threatened her. She had been raped several times in the past in her life, and she was not going to take it anymore. She carried a gun, because if anybody ever threatened to attack or rape her again she was not going to let it happen (R48). Counsel was obviously aware of Wuornos' imperfect defense of self-defense and what her defenses were if she proceeded to trial.
The Offer of Plea indicates Wuornos and her attorney fully discussed all aspects of the case and that counsel had explained any defenses to the charges (R 5). The court went over paragraph five of the Offer and Wuornos understood that provision indicated she had had sufficient time to consider possible defenses and to reflect upon the consequences of her plea. She indicated in court that she did not need more time to consider her plea and wanted to proceed (SR 12). She would have been aware of her possible defenses from her previous capital trial and pleas.
"Inexperience" counsel's closing argument was well reasoned, eloquent and resulted ina 7 to 5 vote for death.
Counsel was obviously learned and effective in capital sentencing law and procedure despite his claim that he did not have the capital experience necessary to take her case to trial. The argument that the court should have required Mr. Glazer to withdraw is without basis. Wuornos went to trial in Volusia County for the murder of Richard Mallory under similar circumstances and her claim of self-defense and "intoxication" did not fly as to the first victim. Wuornos v. State, 644 So. 2d 1000 (Fla. 1994). The obvious strategy in this case was to admit guilt honestly and openly, thereby enabling Wuornos to argue that she was saving taxpayers Mooney, not blaming anyone, and would be imprisoned for life. Her "unarticulated" defense is readily apparent - a recognition that her confession would likely convict her again based on the facts despite the fact that she simultaneously made contradictory statements that she had acted in self-defense (SR 29-30). That Wuornos is less than happy with such a state of affairs should not be unexpected.
Nothing in the record supports counsel's speculation that Wuornos believed if she had the right lawyer to investigate she would be able to present her case. It is apparent from her statement that "new evidence will open up each and every case" that Wuornos is in preparatory stages of collateral attack and investigation and such statement does not indicate she is foregoing any viable present defenses. It is apparent from this and Wuornos' prior rambling statements in other cases that Wuornos' ire is directed at her portrayal in the movie "Overkill" and her suspicions the police had an additional monetary reason far doing their job (SR 29-30). It is clear from her statement to Dr, Delbeato and her penalty phase argument that Wuornos is not. continuing to assert her innocence. As this court previously pointed out "a plea daes not become unallowable merely because the defendant may disagree as to legal conclusions or construction of the facts. It is highly common for defendants to do just that, even after defense counsel has advised that the defendant ' s interpretation is not a legally valid one. " Wuornos
v. State, 644 So. 2d 1012, 101.C (Fla. 1994). Appellate counsel even admits that "police lying" would not necessarily grant her any relief. (Brief of Appellant p. 2 2). That Wuornos hopes same day to impugn the integrity of the police, even though her will was not overborne by any official misconduct in confessing hardly indicates she believes she has a viable defense or invalidates her plea. See, Wuornos v. State, 644 So. 2d 1000, 1007 (Fla.
a (1994). She was advised by the court that some new evidence could not be admitted and persisted in her plea. Wuornos also well knew from going to trial in the Mallory case that she would have a right to cross-examine the police. She indicated she understood that by pleading guilty she was giving up the right to confront witnesses (SR (10).
In accordance with Boykin v. Alabama, 395 U. S. 238 (1969), Wuornos was informed that by pleading guilty she waived the right to appeal. No authority is cited for the proposition that Wuornos had a right to be advised of "collateral" consequences, i.e. the mechanic of a future Florida Rule of Criminal Procedure. - Cf. Rosemond v. State, 433 So. 2d 635 (Fla. 1st DCA The failure to follow any of the procedures respect ing the acceptance by the court of a plea does not render a plea void absent a showing of prejudice. F1a.R.Crim.P. 3.172(i). Wuornos does not ever aver that but for the omissions of the court she would not have pleaded guilty or would even now go to trial.
Where the record demonstrates that the court determined that plea of guilty was freely and voluntarily made and that the defendant was fully aware of the consequences of the plea, the acceptance of the plea should be upheld. Mikenas v. State, 460 So. 2d 359 (Fla. 1984). Where a defendant has signed an Offer of Plea which indicated that she gave up her right to trial by pleading guilty and discussed and understood the case with the assistance of her attorney and was satisfied with her attorney's services it is an indication of a full understanding of the significance of the plea and its voluntariness. See, McElvane v.
State, 553 So. 26 321 (Fla. 1st DCA 1989). Here, the trial court, again, went over these issues with Wuornos in court.
Claims of ineffective assistance of counsel cannot be raised on direct appeal. Kelley v. State, 486 So. 2d 578, 585 (Fla. 1986). This case is no exception. The record on appeal is hardly sufficient to allow determination of an ineffective ness claim simply because Mr. Glazer would have declined to handle this case if it went to trial because he personally did not feel that experienced in capital litigation. The only crucial aspect of a capital case differ ing from other criminal cases is the penalty phase. Mr. Glazer proved to be very adopt in that area, was clearly aware of incomplete, across-the-board defenses, and managed to secure a close 7 to 5 vate with not much to work with.
There is not record support for the gross speculation that Wuornos was pushed to plea. Wuornos was properly advised of the punishment for robbery with a firearm, which is of little consequence considering Wuornos' prior sentences and she persisted in her plea. Bad advice on the part of counsel is hardly manifested by off-the-record conferences and subsequent one-sided statements of Wuornos. Wuornos has the vehicle of a Florida Rule of Criminal Procedure 3.850 to develop this claim further. Wuornos, herself, however has indicated satisfaction with her attorney.
IV. THE TRIAJA COURT PROPERLY FOUND THAT WUORNOS COMMITTED THE
MURDER INA COLD, CALCUWLTED AND PREMEDITATED MANNER.
Appellant first complains that the sentencing court's finding that each victim was a white male over the age of forty, who traveled alone and that each was killed ina remote location describes the ordinary characteristics of prostitution and that finding that the killing was cold and calculated on such basis would "discriminate against prostituted women by defining the ordinary conditions of their lives asa reason for putting them to death. " (Brief of Appellant p.29). In support thereof appellant offers studies never presented to the court below.
Appellant overlooks the fact that such factual scenario is equally applicable to the highway woman posing asa damsel in distress or a prostitute who targets older victims likely to have more Mooney. That Wuornos was additionally or was incidentally a prostitute does not mean that the cold ness factor cannot be applied to the robberylwitness elimination murder. That the circumstances surrounding the murder point not to the mechanic of prostitution but to a pre arranged plan to rob and murder are obvious. Wuornos revealed her motive for the murders to Tyria Moore: she was in love with Noore and was worried that they would lose their apartment and not be together (R771; SR 50). That she targeted alder men with Mooney is obvious from her encounter with Bobby Cops. Up until the time Cops cashed a couple of checks Wuornos had simply hitched a ride with him. After Cops had Mooney she propositioned him (R 741). She did nut take his rejection and move on asa prostitute would. She responded as woulda robber whose plans had been thwarted. Like Mr. Antonio, four previous customers were shot multiple times in the torso or body in remote areas (R 439; 440-43). Their personal effects a were disposed of in other remote areas and their vehicles taken and abandoned (R 439; 442-43). Property of value was pawned or stored ina locker (R 404-409; 429-433). That she coldly killed her victims is evident from her statement to Cops referring to them simply as "old motherfuckers" she had killed (R 745).
Wuornos' theory is contrary to the facts that could be inferred from the similar crimes evidence and Wuornos' own confession.
That Wuornos calculatedly killed is evident from the fact that she armed herself in advance, lured her victims to an isolated area, shot multiple times to the torso and in the case of Antonio, shot three times in the back at close range as he obviously fled, and administered a coup de grace to the back of the neck, all for the purpose of stealing his belongings (R383;
That Wuornos premeditated and never intended to let a robbery victim live is evident from her statement to Detective Horzepa that she killed the men to silence them so she could continue to hustle (R 501). Heightened premeditation is also evident. from her advance procure ment of a weapon and continuing to shoot.despite lack of resistance fram the victim, and carrying out the killing as though it were a matter of course. Cruse v.
State, 588 So. 2d 983 (Fla. 1991).
That the life of a prostitute is a sad one is not surprising. See Report of the Florida Supreme Court Gender Bias Study 892-908 (1990); Wuornos v. StaLs, 644 So. 2d 1000, 1012 (Fla. 1994) (Xogan, J., concurring specially with an opinion). That prostitutes may be abused by their clients is also not surprising. The fact; that Wuornos carried a gun, however, is not unremarkable when one looks further, as the sentencing judge did, to the use that was made of that gun. Such use had nothing to do with the "grim realities of a prostituted woman'slife. " Andrea Jackson's death sentence was vacated and the case remanded to the trial court with directions to empanel a new jury, to hold a new sentencing proceeding, and to resentence Jackson because the cold, calculated, and premeditated jury instruction was found to be unconstitutionally vague and the form of the instruction was objected to at trial. Jackson v. State, 19 Fla. L. Weekly 5215, 217 (Fla. 1994). Despite the concurring opinions that the facts of the case did not reveal the murder to be cold, calculated and premeditated, the per curiam opinion did not preclude the finding of the cold ness factor again on resentencing: "Yet, we cannot say beyond a reasonable doubt that the invalid CCP instruction did not affect the jury's consideration or that its recommendation would have been the same if the requested expanded instruction had been given." Id. The only similarity between the murder in Jackson and the present case, in any event, is the gunshot wounds to the back. The homicide in Jackson occurred when Jackson was informed that she was under arrest and a struggle ensued. 19 Fla. L. Weekly at S218. According to Wuornos ' own confession I!...forget the struggle, we didn't even struggle. I whipped out my gun on that one." (SR 56-66). Even according 'to Wuornos there was na panic and fear of the victim. She was simply "pissed off because he was trying to get a free piece of ass." (SR 56-66). In Jackson a police officer was killed and unlike this case, he was not one of a group of "old motherfuckers" for whom Wuornos had disdain and whose property she pawned and stored. Wuornos behavior in repeatedly shooting the victim manifest not "compensatory impulses" due to lack of strength and risk of being killed but is consistent with her vowed intent. to silence the victims. A truly similar case, in which the CCP factor was properly found, is Wickham v. State, 593 So. 2d 191 (Fla. 1991), where the defendant hid behind a car while a woman and children lured a passing motor ist into stopping, and then shot and robbed the motor ist.
Hardwick v. State, 461 So. 2d 79 (Fla. 1984), spoke to the impulsive felony murder situation. Wuornos wanted to continue living with Tyria Moore and robbed the men for Mooney and killed them to silence them so she could continue hustling. Each man whose property was taken was killed. They were shot multiple times in vital areas to ensure their deaths and Antonio was shot in the back while trying to flee. This case embodies the heightened premeditation and pre arranged design contemplated in Rogers v. State, 511 So. 2d 526 (Fla. 1987).
An incomplete claim of self-defense can constitute a pretense of moral or legal justification provided it is uncontroverted and believable. Walls - 388-89 (Fla. 1994); Christian v. State, 550 So. 2 6 450 (Fla.
Cannady v.
(1989); - State, 427 So. 2d 723 (Fla. (1983). Wuornos flip-flipped in general in her confession as to the reasons why she killed the men, indicating she killEd for purposes of witness elimination and also that she killed the men in self-defense (R 507). Her general claim of self-defense as to all the murders is controverted by the facts of the Antonio murder. According to her own confession Antonio pretended to be a cop, she became "pissed off because he was trying to get a free piece of ass" and she "whipped out her gun on that one." At that point she indicated there was a struggle over the gun but she prevailed and Antonio fell on the ground. She shot him in the back as he started to run away. He was an older "little short guy" to begin with (SR 56-66) There was no physical evidence of a struggle.
Wuornos' incomplete self-defense claim is alsa refused by the similar crimes evidence. Wuornos' trial testimony in the Volusia County trial forth murder of Richard Mallory as to abuse by Mallosy and shooting in self-defense was rejected by the finders of fact as unbelievable. See, Wuornos v. State, 644 So. 2d 1000, 1009 (Fla. 1994). That leaves her inconsistent confession standing, in which she admitted to having killed Mallory for one of two reasons, none of which have anything to do with self defense: he refused to pay or he would not take his clothes off
(R 509). There are alsa the remaining similar murders accomplished by shots to the torso or head. The similar crimes evidence together with the items of property Wuornos had taken from her various victims, including Antonio, refuses any claim of self-defense.
The States theory of the case prevailed on the cold ness * aggravator, is more consistent with the facts of the murders and this court must view the record in the light most favor able to the prevailing theory. Wuornos v. State, 644 So. 2d 1012, 1019 (Fla. 1994).
Moreover, even if the cold, calculated premeditation were dis allowed the remaining case for aggravation, which includes numerous violent felony convictions, could not do anything but outweigh the case for mitigation and any error in finding the cold ness factor was harmless beyond a reasonable doubt. Cf.
Wuornos v. State, 644 So. 2d 1000, 1012 (Fla. 1994) (Kogan, J., specially concurring) (remaining aggravators-only one 1982 robbery conviction; committed during a robbery; committed to avoid arrest; and heinous, atrocious or cruel balanced against the mitigator of a borderline personality disorder).
V. THE CLAIM THAT THE TRIAL COURT EPlRED IN INSTRUCTING THE JURY
ON THE COLD, CALCULATED AND PIZEWDITATED AND AVOID LAWFUL ARREST
AGGFWVATING FACTORS IS PROCEDURAUY BARRED.
In the penalty phase the jury was instructed urithout objection that among the aggravating circumstances that they could consider were that the crime for which the defendant is to be sentenced was "committed forth purpose of avoiding OK preventing a lawful arrest" and was "committed ina cold, calculated and premeditated manner without any pretense of moral ar legal justification." (R 848-49). Any claim that these instructions were constitutionally inadequate is procedurally barred because Wuornos failed to object to these instructions and aggravators at trial. See e.q., Espinosa v. State, 626 So. 2 6 163 (Fla. 1993); Steinhorst
v. State, 412 So. 2d 332, 338 (Fla. 1982) (except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court); Wuornos v. State, 644 So. 2d 1012, 1020 (Fla. 1991). Appellant cites no authority for the novel proposition that the enforcement of procedural bars depends upon the jury vote.
Any error in instruction not waived is harmless in any event. As argued elsewhere this crime embodies everything that is cold, calculated and premeditated and could only have been cold, calculated, and premeditated without any pretense of moral or legal justification even if the proper instruction had been given and was committed to avoid a lawful arrest under any definition. See, Wuornos v. State, (1994); Wuornos v. State, 644 So. 2d 1012, 1019 (Fla. (1994); Walls
v. State, 641 SO. 2d 381, 387 (Fla. 1994; sate. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Wuornos actually made a statement indicating essentially that a11 her victims were killed so she could continue her trade of prostitution (R 501).
VI. THE TRIAL COURT DID NOT IGNORE EVIDENCE IN MITIGATION BUT
MADE A REASONED DETERMINATION THAT THE OFFERED MITIGATION WAS NOT
SUPPORTED BY THE GREATER WEIGHT OF THE EVIDENCE AND IF IT WAS
THEN THE AGGRAVATING CIRCUMSTANCES OVERWHELMINGLY OUTWEIGHED THE
EVIDENCE PRESENTED IN MITIGATION.
As to offered evidence concerning Wuornos' background and mental state the sentencing judge found as follows:
NON-STATUTORY MITIGATING CIRCUMSTANCES
The Court has considered other evidence with respect to the Defendant and possible mitigating circumstances.
Doctor Krop diagnosed the Defendant's mental state as "anti-social and borderline personality disorder." He listed eight criteria to support such a finding. He testified that five of the eight would be necessary to conclude that a person suffered fram anti-social borderline personality disorder. He found the Defendant Wuornos to have all eight. These criteria are: (1) unstable and intense interpersonal relationships,
(2) impulsive ness, (3) unstable mood swings or shifts, (4) inappropriate intense anger, (5) apparent suicidal threats, (6) persistent identity disturbance manifested by problems with sex orientation, (7) chronic feelings of emptiness and boredom, (8) efforts to avoid the real world. With all these however it is admitted that poor judgment, assuming she suffered from it, is no reason to kill another person. It is admitted that she knows right from wrong. There are suggestions in the evidence that the Defendant woe;
physically abused in the homes in which she was raised. Her biological aunt (sister of the Defendant's mother, and adoptive sister) testified at the trial.
She negate those claims characterizing the home in which they were reared as strict but fair. The evidence is without conflict that both her real father and her biological grandfather (adoptive father) took their own lives.
Her biological grandmother (adoptive mother) died as an alcoholic; her biological mother abandoned her as an infant and left her to be reared by her grandparents who adopted her. The Court simply could not be persuaded that any of her childhood background could possibly serve asa mitigating factor far the commission of the cold blooded murder in this case. The testimony of Doctor Krop is interesting but insufficient to justify the finding of any mitigating circumstance. These possible mitigating factors are not supported by the greater weight of the evidence. Even if they were, the aggravating circumstances overwhelmingly outweigh the evidence presented in mitigation.
(SR 52-54).
In the present case there was no history of childhood abuse. Many young teenagers go to homes for unwed mothers to await birth in private and avoid the stigma attached to bearing a child out of wedlock in their community. That Wuornos parents/grandparents loved her is no more obvious than in the fact that they took her back into the home after the birth.
Wuornos simply became rebellious asa teenager (R 624).
Her sister testified she simply did not want to follow the rules of the house (R 629). She and her brother caused trouble and ran away many times, to the point where the parents could not take it anymore (R633; 635-636). It is probably true, as counsel speculates, that "no one cried at her high school graduation" and "no father had his hair turn gray as he taught her to drive."
(Brief of Appellant p. 42). The mother who managed to refrain.
from drinking the entire time her children were growing up just drank herself to death after Wuornos left and the father, shortly after, only followed her to the grave by killing himself (R643;
648). Wuornos deprived them of further minor agonies.
Counsel's further speculation that "the dollar defined intimacy and trust" is also not well-taken. Wuornos' feelings of love and trust were directed not at her customers but at her lover, Tyria Moore. Moreover the dollar was an easy one, not an 8 to 5 dollar.
There is no reason at all why this court should recognize as mitigating, and it was nat so argued below, the fact that after years of prostitution "the resiliency of WUOTROS' spirit and reserves of dignity had become depleted." (Brief of Appellant
p. 42-43). That Wuornos chose the world's oldest profession rather than lead a law-abiding life, like her sister, was Wuornos own decision. Bobby Cops ' testimony also reveals that her spirit was hardly depleted, she had simply become a highway woman strongly intent on relieving her victims of their Mooney. From her own confession and the vain comb ing of her hair in Cops' presence her dignity seemed to be well intact, too (R 472). Moreover a dull spirit and lack of dignity are hardly recognized mitigators and would not outweigh the numerous aggravators, including nine prior violent felonies, in any event.
There was no evidence that Wuornos took drugs at all, no less on the day of the murder. Earlier in her life she had smoked marijuana, taken owners and tried L. S. D. once OK twice but did not like it (R 645). cf. Hardwick 0 1071 (Fla. 1988), (evidence insufficient. to establish beyond mere implication that murder defendant suffered from drug or alcohol dependency, and such factor was properly not considered in mitigation during the sentencing phase where the only evidence remotely touching on the issue was from several lay witnesses, who testified that on certain occasions the defendant used drugs and alcohol and sold drugs to others). In her confession Wuornos recalled only drinking beer (SR 56-66). This statement, absent any other evidence of impairment, is insufficient to establish the existence of intoxication asa mitigating circumstance.
Robinson v. State 574 So. 2d 108 (Fla. 1991). As the sentencing judge pointed out, "although she testified that she had consumed alcoholic beverages at about the same time ofthe commission of the offense she had a recall, after reflection, of the seemingly minutes of detail concerning this murder." (SR 51).
Intoxication is simply incansi.stent with the cold, calculated and premeditated nature of this murder. It is belied by Wuornos true robbery motive apparent in all the murders. She told Detective Horzepa that she killed the men to silence them because she knew that if she got caught she would be back tracked, they would find out about her, and she would not he able to hustle (R 501).
Where there is a lack of any indication that alcohol impaired a defendant's reasoning in construct ing a carefully planned confrontation with the victim in order to kill him intoxication may be rejected as mitigation. Koo v. State, 513 So. 2d 1253 (Fla. 1987). There was too much purposeful conduct on the part of Wuornos in committing this and previous murders for the court 0 to have given any significant. weight to Wuornos' alleged intoxication, a self-imposed dis ability. cf. Johnson v. State, 608 So. 264 (Fla. 1992).
Since Wuornos' motive was robbery/witness elimination, she knew the difference between right and wrong, knew the consequences of her behavior and could stop it and admitted to Dr. Delbeato she had killed the men in cold blood, other incidents and affects of a borderline personality disorder would bear no casual relationship to the homicide and are not statutorily or nonstatutorily mitigating (R 581-582). Since Wuornos would not discuss the circumstances of the Antonio homicide with Dr. Krop, he was unable to determine if she acted under an extreme mental or emotional disturbance (R 708). The known facts demonstrate otherwise. Her behavior with Cops, 0 while certainly revealing an intemperate personality when her robbery plans are thwarted, also demonstrates a modus operandi of target ing older men and luring them to remote areas for the purpose of robbery, which she would have done to Cops anyway if she had been able to immediately retrieve her gun instead of fumbling for it while he managed to drive off. Wuornos had a robberylmurder scheme. That she was less than casual in executing it hardly says anything about her mental state.
The rejection of the offered mitigation should be sustained in the present case as it is supported by competent substantial evidence refusing the existence of the factors. Maxwell v.
State, 603 So. 2d 490 (Fla. 1992). Mitigating circumstances against the death penalty must be reas>i!ably established by the 0 greater weight of the evidence. Nibert v. State, 574 So. 2d 1059 (Fla. 1990). A trial court has broad discretion in determining the applicability of mitigating circumstances. Arbelaez v.
State, 626 SO, 2d 169 (Fla. 1993).
In the event the sentencing judge erred in not finding mitigation, such error is harmless beyond a reasonable doubt.
Alcoholism, difficulties in childhood, and some degree of non statutory impaired capacity and mental disturbance were found to be of only slight weight in mitigation compared with the case in aggravation in Wuornos' first Volusia County appeal, in which at least seven subsequent violent feltmy convictions were not even considered. Wuornos -v. State, 644 So. 2d 1000 (Fla. 1994).
It should also be pointed out that the sentencing judge did 0 alternatively consider the offered mitigation as established and found it was entitled to little weigh:'; and was overwhelmingly outweighed by the aggravating circumstances (SR 54; R 874). The weight to be given mitigators is left to the trial judge's discretion. Mann v. State, 603 So. 2d 1141 (Fla. 1992).
VII. THE SENTENCING COURT DID NOT ERR IN NOT FINDING THE
MITIGATING FACTOR OF EXTREME MEN!TA, L OR EMOTIONAL DISTURBANCE.
No expert testimony was offered by the defense that Wuornos acted under extreme mental or emotional disturbance at the time of Walter Antonio ' s murder. Wuornos would not discuss the circumstances of the Antonio homicide with Dr. Krop. The most Dr. Krop would opine was that Wuornos was seriously emotionally impaired (R 708). Cf. Muhammed v. State, 494 So. 2d 969 (Fla.
(1986). Such testimony standing alone, does not require a finding that Wuornos acted under extreme mental or emotional disturbance at the time of the murder. In -Provenzano v. State, 497 So. 2d 1177 (Fla. (1986), this court indicated that the testimony of various psychiatrists that the defendant was suffering from some form of emotional disturbance, standing alone, did not require a finding of extreme mental or emotional disturbance. Provenzano
v. State, 497 So. 2d 1177 (Fla. 1986). Dr. Delbeato, the States expert did opine that Wuornos had an extreme emotional but not mental disturbance (R 583). There is no indication, however, that he was actually referring to the legal terms of art embodied in Florida Statutes section 9-21.141(6)(b) that the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. Wuornos' condition of 0 having a borderline antisocial personality disorder is, in general, perceived as an emotional or personality impairment (R 600). This factor is not properly supported by equivocation and reservation. Sanchez-Velasco v. State, 570 So. 2d 908 (Fla.
The decision as to whether a particular mitigating circumstance is established lies with the judge. Reversal is not warranted simply because an appellant draws a different conclusion. Sireci v. State f 587 SO. 2d 450 (Fla. 1991). Where the States theory of the case prevails this court views the record in the light most favor able to the prevailing theory.
Wuornos v. State, 644 So. 2 6 1012, 1019 (Fla. 1994). Even uncontroverted opinion testimony can be rejected, especially where it is hard to square with the other evidence. Walls v.
State, 641 So. 2d 381, 390-91 n.8 (Fla. 1994). In Spencer v.
State --I 645 So. 2d 377 (Fla. 1994), this court indicated that the cold, calculated, and premeditated aggravating factor could not be found where there was emotional impairment. Appellee would suggest that the con verse of such proposition must also be true.
A proper finding upon the facts of a case that the murder was cold, calculated and premeditated should preclude finding the statutory mitigator of acting under emotional or mental disturbance or else there would be a logical inconsistency in the findings in support of a death sentence. Evidence indicating that a killing is ca.lculated rather than the result of an uncontrol1able.e rage reaction justifiss not finding the emotional disturbance mitigator. Cf. Roberts v. Sinqletary, 794F.Supp.
0 1106 (S.D. Fla. 1992). This murder epitomizes all that is cold, calculated and premeditated.
The trial judge, in any event, found the offered mitigation, in general, to deserve only the slightest of weight
(R 874). Furthermore, considering the numerous aggravators, which includes nine prior violent felonies, and the weak mitigation, death is the only appropriate sentence, even adding the emotional disturbance mitigator to the matrix and any possible error was harmless. State. DiGuilio, 491 So, 2d 1129 (Fla. 1986).
VIII. THE TRIAL COURT DID NOT ERR IN REFUSING TO FIND IN
MITIGATION THAT THE VICTIM PARTICIPATED IN THE ACTS LEADING TO
HIS DEATH.
Although some arachnids may, homo sapien males usually have no concern about forfeiting their lives during the act of creating new life. Death is certainly not a normal consequence of sexual activity regardless of whether Mooney changes hands.
Had Walter Antonio actually picked Wuornos up for the purpose of sexual activity that he did not expect death to be a Consequence thereof is no better established than by the fact that he was trying to avoid the same while shot in the back. Wuornos' modus operandi was to pose asa damsel in distress in order to gain entry into the car of the chivalrous unsuspecting male not looking for sex with a prostitute as is evidenced by her encounter with Bobby Cops. That Antonio did not fit within this group is hardly evidenced by the fact that his body was found nude Wuornos indicated ina statement that she had killed Richard Mallory because he had refused to take his clothes off (R 509). Removing one's dentures is hardly a romantic preclude to sex. Given the fact that this victim was found without teeth it is highly likely that Antonio's clothes were likewise removed or he was ordered to remove them in an effort to conceal his identity. Suffice it to say that neither the good samaritan nor the highway Rome would expect to forfeit their lives by indulging in sexual activity witha prostitute. The reasonable expectations would be ta the contrary. While prostitutes often rob their customers they seldom kill them for they know that the customer, unless he is willing to be subjected to ridicule, shame, and possible criminal liability, himself, has no recourse in the law to recoup his losses. While retrospectively Wuornos may properly be viewed as an angel of death, she is hardly a Dr.
0 Kevorkian.
CONCLUSION
Based on the foregoing arguments and authorities, appellee requests this court affirm the judgment and sentence of the trial court in all respects.
Respectfully submitted,
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL;
' ASSISTANT ATTORNEY GENERAL
Fla. Bar #302015 444 Seabreeze Blvd., 5th FL
Daytona Beach, FL 32118
(904) 238-4990
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true and correct copy of the above and foregoing has been furnished by U. S. Mail to David A. Davis, Assistant Public Defender, Leon County Courthouse, 4th Floor, North, 301 South Monroe Street, Tallahassee, Florida 32301, this 2g-8 day of March 1995.
FILED
SID J WHITE
PAR 26 1995
IN THE SUPREME COURT OF FLORIDA
CLERK,, v M COURT Chief Deputy Clerk
AILEEN CAROL WUORNOS,
Appellant,
V. CASE NO. 81,498
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE THIRD JUDICIAL CIRCUIT,
IN AND FOR DIXIE COUNTY, FLORIDA
REPLY QRIEF OF APPELLANT
NANCY A. DANIELS
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
DAVID A. DAVIS
ASSISTANT PUBLIC DEFENDER
LEON COUNTY COURTHOUSE
FOURTH FLOOR, NORTH
301 SOUTH MONROE STREET
TALLAHASSEE, FLORIDA 32301
(904) 488-2458
ATTORNEY FOR APPELLANT
FLA. BAR NO. 271543
TABLE OF CONTENTS
TABLE OF CONTENTS i TABLE OF CITATIONS iii ISSUE I
THE COURT ERRED IN NOT FULLY DETERMINING THE
VOLUNTARINESS OF WUORNOS' PLEA WHEN HER TRIAL
ATTORNEY CONFESSED THAT HE LACKED THE EXPERIENCE
TO TRY A CAPITAL CASE, THAT IF WUORNOS HAD
INSISTED ON GOING TO TRIAL HE WOULD HAVE MOVED
TO WITHDRAW AS HER COUNSEL, A VIOLATION OF HER
FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT
ISSUE I1
AILEEN WUORNOS DID NOT INTELLIGENTLY AND VOLUNTARILY
PLEAD GUILTY TO FIRST DEGREE MURDER AND ARMED
ROBBERY IN VIOLATION OF HER FIFTH, SIXTH, AND
ISSUE I11
AILEEN WUORNOS WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL GUARANTEED HER BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE
ISSUE IV
THE COURT ERRED IN FINDING THAT WUORNOS COMMITTED
THE MURDER INA COLD, CALCULATED, AND PREMEDITATED
MANNER WITHOUT ANY PRETENSE OF MORAL OR LEGAL
JUSTIFICATION BECAUSE IT WAS EITHER NOT SO OR
HER CLAIM OF SELF DEFENSE PRESENTED AT LEAST A
PRETENSE OF LEGAL JUSTIFICATION, A VIOLATION OF
ISSUE VI
THE COURT ERRED IN IGNORING OR REJECTING THE
ABUNDANT MITIGATING EVIDENCE WUORNOS PRESENTED,
A VIOLATION OF THE DEFENDANT'S EIGHTH AND
ISSUE VII
THE COURT ERRED IN IGNORING DR. DELBEATO'S
TESTIMONY THAT WUORNOS HAD AN EXTREME EMOTIONAL
OR MENTAL DISTURBANCE AT THE TIME OF THE MURDER,
A VIOLATION OF HER EIGHTH AND FOURTEENTH
ISSUE VIII
THE COURT ERRED IN FINDING THAT WALTER ANTONIO
PARTICIPATED IN THE ACTS LEADING TO HIS DEATH,
A VIOLATION OF WUORNOS' EIGHTH AND FOURTEENTH
TABLE OF CITATIONS
CASES PAGE(S)
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, Koenig v. State, 597 So. 2d 256 (Fla. 1992) 1, s McElvane v. State, 553 So. 2d 321 (Fla. 1st DCA Robinson v. State, 574 So. 2d 108 (Fla. 1991) State. DuPree, 20 Fla. L. Weekly S160 (Fla.
STATUTES
RULES
IN THE SUPREME COURT OF FLORIDA
AILEEN CAROL WUORNOS,
Appellant,
V. CASE NO. 81,498
STATE OF FLORIDA,
Appellee.
REPLY BRIEF OF APPELLANT
ARGUMENT
ISSUE I
THE COURT ERRED IN NOT FULLY DETERMINING THE
VOLUNTARINESS OF WUORNOS' PLEA WHEN HER
TRIAL ATTORNEY CONFESSED THAT HE LACKED THE
EXPERIENCE TO TRY A CAPITAL CASE, THAT IF
WUORNOS HAD INSISTED ON GOING TO TRIAL HE
WOULD HAVE MOVED TO WITHDRAW AS HER COUNSEL,
A VIOLATION OF HER FIFTH, SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENT RIGHTS.
The States argument on this issue begins on page 29 of its brief by noting that "Wuornos is no notice at entering pleas." While that may be true (1) it is not particularly compelling evidence that she intelligently and voluntarily did so in those other cases or that she didso here, See, Koenig v.
State, 597 So. 2d 256 (Fla. (1992) (signed plea agreement without more does not indicate an intelligent and voluntary plea) and (2) it is irrelevant to this case. See, Wuornos v.
State, 644 So. 2d 1012, 1019 (Fla. 1994) (This court will not take judicial notice of mitigation presented in Wuornos' other cases.) 1 Wuornos is also confused about the repeated references to Glazer's closing argument. This issue concerns what the trial judge did at the change of plea hearing, not what counsel argued to the jury. Did the court give the defendant the ''utmost solicitude" in accepting her plea? Boykin v. Alabama, 395 U. S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Until the last four pages of the plea colloquy, it had conducted a model inquiry into her understanding of the consequences of what she was doing. But, as asked in the Initial Brief at p. 17, "What do we do with that final dialog" the court had with Wuornos and Glazer? It should have done more than it did. That counsel was aware "of Wuornos' imperfect defense of self-defense and what her defenses were if she proceeded to trial" (Appellee's Brief at pp. 2 9 - 3 0) misses the point. Was Wuornos aware of them, and more importantly, did she understand her guilty plea forever foreclosed any claims of innocence? Obviously she did not, otherwise she would have stopped talking about new evidence and opening up "each and every case." (SR 3 1) When the defendant indicated that she wanted a "real" attorney to 'On page 2 9, the state makes several references to the record, i.e. (R 42, 4 4 - 4 5, 4 8). Those page Number do not correspond with Appellate counsel's record. Instead the quote that the state cited at (R42) in its record was found at (R795 - 9 6) in his. The record support for its other points was likewise found in (R798 andR 801).
"take care of the case" and Glazer admitted he was incapable of depending "her in the way she needs to be defended" (SR 3 3 - 3 4), the court should have made sure she really understood that her plea silence any further question of her guilt and prevented her from presenting any defense.
That Glazer recognized Wuornos had one is obvious from his closing argument.
Why did this happen? I suppose we all want to know why, what turned her into a killer. She perceived that harm was imminent, so she says she acted in self defense. Larry Horzepa, the detective in Volusia County, told you that in three and a half hours of confessions, over-- it took a while--but he said at least over forty times she said, 'I acted in self defense.'
(R 797).
She also had a voluntary intoxication claim because when she killed Antonio 'I1 was drunk as could be. I must had a case of beer on this one." (SR 5 7 - 5 9) The state on page 30 of its brief then notes that "The Offer of Plea indicates Wuornos and her attorney fully discussed all aspects of the case and that counsel had explained any defenses to the charges (R 5). " Of course it does, and Wuornos admitted as much in her Initial Brief at pp.
16-17. "But what do we do with that final dialog?" For the state, nothing. Nothing because nothing in this record showed that the court gave this woman the "utmost solicitude" to insure she understood what her plea to first degree murder meant. Instead the state on appeal confuses the issue of the adequacy of the court's inquiry by focusing on Glazer's closing argument and what had happened in Wuornos' other cases (Appellee's brief at p. 30).
If the defendant's self defense argument had failed in her other trial, the ''obvious strategy in this case was to admit guilt honestly and openly, thereby enabling Wuornos to argue that she was saving taxpayers Mooney, not blaming anyone, and would be imprisoned for life." (Appellee's brief at p. 3 0) That's a defense? If so, Glazer is per-se ineffective for allowing Wuornos to plead guilty so he could save her life with such an incredible argument, especially when at least two viable defenses existed: self-defense and voluntary intoxication. Saving the taxpayers buck asa defense is laugh able. If Glazer had had any capital experience (SR 33-34), or any experience at all, he would have realized that just because trial strategies did not "fly as to the first victim," (Appellee's brief at p. 3 0), other juries may have gotten them off the ground.
On page 31 of its brief the state argues that Wuornos, at her change of plea hearing, "is in preparatory stages of collateral attack and investigation." But why is she preparing a post-conviction motion when she could have had a trial and presented the evidence she wanted? The state ' s contention makes no sense. The court should have realized she had no idea that her plea largely foreclosed the very investigation she believed someone other than Glazer could do. It should have halted the proceeding until it was assured she knew this.
On page 3 2 the state says, Rule 3.172(i) Fla. R. Crim. P.
requires the defendant to show prejudice if the trial court ignored the proper procedures. "Wuornos does not ever aver that but for the omissions of the court she would not have pleaded guilty or would even now go to trial." Because the court never clarified Wuornos' statements or inquired about Glazer's incompetency in capital matters, neither the trial judge nor this court can say she knowingly and voluntarily pled to the charged crimes. That is the prejudice she suffered.
On pages 3 2 - 3 3, the state, relying on McElvane v. State, 553 So. 2d 321 (Fla. 1st DCA 1989), argues that "Where a defendant has signed an Offer of Plea which indicated that she gave up her right to trial by pleading guilty... it is an indication of a full understanding of the significance of the plea and its voluntariness." First, McElvane recognized a possible conflict witha Second District case on the same point. More significant, this court's decision in Koenig v.
State, 597 So. 2d 256 (Fla. 1992) casts doubt on the continuing liability of McElvane.
The state, thus, has done nothing to reassured this court that the judge below somehow saved the plea colloquy. Wuornos never knowingly and voluntarily pled to the murder and robbery of Antonio. This court should reverse the trial court's judgment and sentence and remand fora new trial.
ISSUE I1
AILEEN WUORNOS DID NOT INTELLIGENTLY AND
VOLUNTARILY PLEAD GUILTY TO FIRST DEGREE
MURDER AND ARMED ROBBERY IN VIOLATION OF
HER FIFTH, SIXTH, AND FOURTEENTH AMENDMENT
RIGHTS.
Again, until the last four pages of the change of plea hearing, nothing exhibited in the least degree that Wuornos was confused about what was happening. She admits that. But, and that is the crucial word, what do we do with her musings, her talk of plans that would be largely irrelevant in any post-conviction pleading? What we do and what the court should have done is start over again, and it is what the state on appeal has not shown was unnecessary. Merely singing an offer of plea may be an "indication of a full understanding of the significance of the plea and its voluntariness. - See, McElvane
v. State, 553 So, 2d 321 (Fla. 1st DCA 1989)" (Appellee's brief at p. 3 3), but in this case it was insufficient. Koenig v.
State, 597 So. 2d 256 (Fla. 1992). That Wuornos persisted in claiming that she could show the police lied, or that if she had the right lawyer she could prove her innocence clearly exhibited that she had no idea what her change of plea meant.
She did not knowingly or intelligently plead guilty. Boykin v.
(1969). This court should reverse the trial court's judgment and sentence and remand fora new trial.
ISSUE I11
AILEEN WUORNOS WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED HER BY THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE I,
SECTION 16 OF THE FLORIDA CONSTITUTION.
The state makes light of Glazer's announce ment that he "did not have the capital experience necessary to take her case to trial.... And if this case were to go to trial, I would immediately ask to withdraw because I could not possibly defend her in the way she needs to be defended." (SR 3 4) It says this damning admission referred only to the penalty phase portion of a capital case, and it is the "the only crucial aspect of a capital case differ ing from other criminal cases. " (Appellee's Brief at p. 3 3) Glazer, however, never admitted he was incapable of handling only the penalty phase portion of a capital case. He said he did not have the necessary capital experience. He did not know how to try a capital crime, i.e.
first degree murder. He obviously believed he could defend Wuornos in the penalty phase part of the trial because he did so. His admission of incompetency meant he could not try the guilt phase portion of the trial. And because of that, he faced an inherent conflict of interest when he represented Wuornos and allowed (or encouraged) her to plead guilty.
Finally, the state says "Wuornos, herself, however, has indicated satisfaction with her attorney." This is what she said at the end of the plea colloquy. "NO, he [Glazer] is not the attorney I would look for. I would look for somebody who would take care of the case....'I (SR 33-34) This court should reverse the trial court's judgment and sentence and remand fora new trial.
ISSUE IV
THE COURT ERRED IN FINDING THAT WUORNOS
COMMITTED THE MURDER INA COLD, CALCULATED,
AND PREMEDITATED MANNER WITHOUT ANY PRETENSE
OF MORAL OR LEGAL JUSTIFICATION BECAUSE IT
WAS EITHER NOT SO OR HER CLAIM OF SELF
DEFENSE PRESENTED AT LEAST A PRETENSE OF
LEGAL JUSTIFICATION, A VIOLATION OF HER
EIGHTH AND FOURTEENTH AMENDMENT RIGHTS.
Wuornos relies on her Initial Brief to carry her argument on this point, and rep lies here to specifics of the States contention.
First, the state seems amazed that Wuornos would carry a gun, and surmises she did so only to murder her clientele.
(Appellee's Brief at pp. 3 5 - 3 6) As presented in the Initial Brief, however, a prostitute daily faces the possibility of torture, mutilation, and murder. If police carry guns to protect themselves from the real but relatively remote possibility of violence surely even the most naive woman who had been on the streets for 2 0 years would have done the same thing.
Then on page 37 of its brief it claims that "Each man whose property was taken was killed." There is no proof of this, and the statement reveals the States fundamental misconception of this case. Wuornos was a prostitute. She made her living selling her body for men to use. She had done so for at least 18 years. If, over the course of a year, she killed six men who wanted to use her there must have been dozens and perhaps hundreds of others who paid for her services during this same period who were neither robbed or murdered.
Those six, however, did something to trigger Wuornos' impulsive ness that unleashed her "intense anger or lack of control of anger." (T 682-84) Antonio upset the defendant's fragile stability with his threat to arrest her unless he gave her free sex (SR 5 7 - 5 9). That rude extortion started the events that quickly escalated into murder, not some plan to rob and murder. 2 As to the self-defense claim, the state has failed to realize that Wuornos need not establish it factually. Nor need she prove an imperfect defense of self-defense. She must only have established a "pretense" of legal justification for the cold, calculated, and premeditated aggravator to be inapplicable. In Cannady v. State, 427 So. 2d 723 (Fla. 1983), the trial court improperly found this aggravating factor even though the victim, a quiet, unassuming minister, had been shot five times. The defendant's claim that the man of God had jumped at him established at least a pretense of moral or legal justification. - Id. at 730.
So in this case, Wuornos' story that she and Antonio struggled before she shot him, as in Cannady, supports her claim of having at least a "pretense" of legal justification in shooting him. Hence the court should have rejected finding the 2The state also speculates on page 37 of its brief that Wuornos shot Antonio as he tried to flee.
cold, calculated and premeditated aggravator, and this court should remand fora new sentencing proceeding.
ISSUE VI
THE COURT ERRED IN IGNORING OR REJECTING
THE ABUNDANT MITIGATING EVIDENCE WUORNOS
PRESENTED, A VIOLATION OF THE DEFENDANT'S
EIGHTH AND FOURTEENTH AMENDMENT RIGHTS.
There are, perhaps, some children who were born mean, and no matter how much love and care their parents give trying to reform their way ward off spring, nothing works. Nothing in this case suggests Aileen Wuornos came into this world pre destined to room the highways of central Florida asa prostitute or murder six men. The state tries to portray Wuornos' family as one that loved her and would have welcomed her if she had not become "rebellious asa teenager." (Appellee's brief at p. 42) If there was so much love at home why did she try to hide her pregnancy? Why was she pregnant at 13? Why did she run away when she was 16? In truth, her home must have been hell (T On the same page the state says the Mooney she earned asa prostitute "was an easy one, not an 8 to 5 dollar." No woman working " 8 to 5 " faces rape, mutilation, and death on a daily basis. Wuornos did, and had done so for nearly 2 0 years. If what she did was not an " 8 to 5'' job, it had other unenviable distinction. She had no retirement plan, no medical benefits, no paid vacation, and no affirmative action plan. No state or federal agency protected her workplace. No one told her about sexual harassment. Her dollars hardly came easily.
The state on this page and the next then argues that her "spirit was hardly depleted." Yet, it was. After years of abuse, the Richard Mallory rape broke her reserve. She simply refused to be beaten, kicked, and laughed at by the men who had used her. As she said, "I'm sick and tired of people cornon' up to me, and telling' me they're a cop and I don't think you're a cop.'' (SR 58) Bobby Cops never pushed her to the point where Wuornos tried to kill him. Had he done so, like Antonio did, she may have snapped and killed him. As it was, her shallow reserves could not take even his rejection, and she went ballistics.
The Appellee then claims "There was no evidence that Wuornos took drugs at all, no less on the day of the murder."
The defendant, however, clearly indicated she had drunk about a case of beer: "Oh... now I remember. Okay. I remember.
Okay. I remembered. Alright. Alright, now I remember. Okay.
He was an older fella, a little short guy. Alright. Okay.
That one... Okay, I was drunk as could be. I must had a case of beer on this one-I was drunk-as could be.,, 'I (SR 57-58). To defeat this uncontroverted assertion, the state cites Robinson v. State, 574 So. 2d 108 (Fla. 1991) for the proposition that uncorroborated evidence of intoxication is insufficient to establish the existence of intoxication asa mitigating circumstance. Several points in response to that argument must be made. First, Wuornos needed to establish that factor only by the greater weight of the evidence. Second, this court's resolution of the relevant ruling in Robinson, while correct has no application here. There, the defendant wanted to introduce the testimony of Dr. Krop who would have said that during his interview with Robinson, the defendant told him that he had been intoxicated during the murder. This court agreed that such testimony should have been excluded, but its reasoning has more to do with Dr. Krop than Robinson. That is, the former was allowed to testify solely because he was an expert, not because he had any personal knowledge about the facts of Robinson'scase. What the defendant told him was accepted, not so much for its truth, but as another fact to aid in arriving at a diagnosis of Robinson. Thus, self-serving hearsay given during an examination, when objected to, can be excluded.
In this case, we have no objection to Wuornos' statement that at the time of the murder she was as "drunk as could be."
That should preclude the state from now complaining about Wuornos' evidence of her drunkenness. State. DuPree, 20 Fla.
L. Weekly S160 (Fla. April 1 3, 1995); Cannady v. State, 620 So.
2d 165 (Fla. 1993). Additionally, Wuornos never introduced this testimony through Dr. Krop. She confessed to police officers, and they questioned her solely to solve the Antonio murder, not to aid in performing some psychiatric evaluation of her. Thus, the state should not complain if what they solicited from her was not entirely damning. If they did not like the answer, they should not have asked the question.
Finally, if her testimony, without more, could not establish this mitigating fact then Wuornos has been denied the right to testify in her own behalf, and her right to a fair trial has no meaning.
On page 44, the state believes that if one is drunk one cannot engage in "purposeful conduct" while drunk. Apparently, one is impaired by alcohol when he or she is laying in the gutter, head lolling from side to side. Yet, this court need only reflect on the large number of people, including lawyers, who are alcoholic and who seem to function. Alcohol can reduce one to a gibbering old fool, but not necessarily as the large number of drunk drivers on our streets will attest. It does, however, impair one's judgment. Diagnostic and Statistical Manual of Mental Disorders IV p. 197. Thus, Wuornos could have engaged in "purposeful conduct" while drunk. Having consumed a case of beer on the day of the murder could only have caused her other personality defect to come to the surface more readily. That is, she was intensely impulsive, had unstable mood swings, and was prone to an inappropriate anger. Drinking gallons of beer before killing Antonio could only have eliminated what few inhibitions she had.3 Finally, the state says the Cops incident "demonstrates a modus operandi of target ing older men and luring them to remote areas for the purpose of robbery." (Appellee's brief at p. 45) There was no evidence how old Cops was. There was no evidence Wuornos had "targeted" him. There was no evidence she was 3Prostitutes often abuse alcohol and drugs to dea den the experience and degradation of prostitution. John Briere and Marsha Runtzl Research with Adults molested as Children, in Lasting Effects of Child Sexual Abuse, Gail E. Wyatt and Gloria
J. Powell, eds. at pp. 8 5, 9 2.
going to lure him to a remote area. And there was no evidence she intended to rob him.
ISSUE VII
THE COURT ERRED IN IGNORING DR. DELBEATO'S
TESTIMONY THAT WUORNOS HAD AN EXTREME
EMOTIONAL OR MENTAL DISTURBANCE AT THE TIME
OF THE MURDER, A VIOLATION OF HER EIGHTH AND
FOURTEENTH AMENDMENT RIGHTS.
It seems we are playing word games here. The state, on page 46 of its brief claims "No expert testimony was offered by the defense that Wuornos acted under extreme mental or emotional disturbance of the time of Walter Antonio's murder."
Dr. Krop, as the state acknowledges, believed she was seriously emotionally impaired (R708), and that was a major contributor to all of the murders (T703).
Dr. Delbeato agreed and said she had a severe or extreme emotional disturbance (T 605-606). The choice of words mattered little to him: "to me it's semantics.'' The state, on the same page and the next, then claims no evidence proved Dr. Delbeato "was actually referring to the legal terms of art embodied in Florida Statutes section 921.141(6)(b). First, unlike insanity, which apparently has no medical meaning and is a legal term only, the "extreme emotional disturbance'' mitigator is not a legal term of art.
This expert knew what it meant and never sought any clarification. Nor did he ever say he did not know what k t meant. If anything, his testimony explained why this mitigator should apply: Wuornos had a severe emotional problem and because of that "they're going to have very marginal and difficult lives." (T 606) He said nothing equivocal and made no reservations about his diagnosis.
Finally, the state argues on page 47 of its brief that the trial court could not logically find Wuornos committed the murder ina cold, calculated and premeditated manner and also find she suffered some sort of emotional impairment. That conclusion, however, does not necessarily follow. If that mitigator applied to situations where there was some sort of explosion of emotions, as when a husband gets mad when his wife burns a steak, the States contention would make sense.
Nevertheless the emotional impairment Wuornos has permeates and defines her life. It controlled how she perceived reality, and that grossly distorted perception could lead her to coldly plan a murder, and it could also cause her to explode in the face of rejection as it did when Bobby Cops refused her offer of sex.
Of course, Wuornos ina sense agrees with the state. If she suffered from an extreme emotional impairment, the court could not find cold, calculated, and premeditated aggravator.
This court should, therefore, reverse the trial court's sentence and remand fora new sentencing hearing.
ISSUE VIII
THE COURT ERRED IN FINDING THAT WALTER
ANTONIO PARTICIPATED IN THE ACTS LEADING TO
HIS DEATH, A VIOLATION OF WUORNOS' EIGHTH
AND FOURTEENTH AMENDMENT RIGHTS.
The state, on page 48 of its brief, says "Wuornos' modus operandi was to pose asa damsel in distress in order to gain entry into the care of the chivalrous unsuspecting male - not looking for sex witha prostitute as is evidenced by her encounter with Bobby Cops." (emphasis in brief.) There is, first, no testimony that was the way she habitually solicited men. Second, the state presented nothing that she used that ploy on Antonio. Third, the eager evidence shows clearer than the States speculation that Antonio picked up Wuornos so he could have sex with her.
On page 49 of its brief the state then says Wuornos must have taken Antonio's dentures and his clothes to "conceal his identity." Afterall removing "one's dentures is hardly a romantic preclude to sex." But prostitution, almost by definition, precludes romance, and it is hard to understand why taking the victim's false teeth and clothes but leaving a body alongside a dirt road somehow translated into evidence showing a desire to conceal identity. No effort was made to bury the corpse or otherwise hide it. Nor was there any evidence Wuornos tried to obliterate his fingerprints, which would have been the most obvious thing to do if she were trying to hide Antonio's identity.
Of course, as the state notes on page 49 of its brief, "neither the good samaritan nor the highway Rome would expect to forfeit their lives by indulging in sexual activity witha prostitute." But that misses the point argued by Wuornos that the victim "participated" in the actions leading to his death.
Skydivers who are killed when their parachutes fail to open do not expect to die when they jump out of the airplane. Death, however, is a distinct possibility because skydiving is an inherently dangerous activity, and only a blind sopher would not recognize that fact. Thus, while they have not sought out death they have, nevertheless, participated in actions which led to it.
Ina similar way, prostitutes and men who use them do not expect to be murdered when they engage in sex for Mooney.
Nevertheless, violence is an inherent risk for both people, so that anyone who uses a prostitute must recognize it asa possible product of his illegal activity. In that sense, Antonio "participated" in the actions that led to his death.
He obviously never consciously solicited Wuornos with that end in mind, but any reasonable person would have recognized the latent violence of the deal. The trial court erred in failing to find Antonio's participation in the acts leading to his death as mitigation. This court should reverse the trial court's sentence and remand fora new sentencing proceeding.
CONCLUSION
Base on the arguments presented here and in the Initial Brief, the Appellant, Aileen Wuornos, respectfully asks this honorable court to reverse the trial court's judgment and sentence and either remand fora new trial or reverse the trial court's sentence and remand fora new sentencing hearing before the trial court or before a jury.
Respectfully submitted,
NANCY A. DANIELS
PUBLIC DEFENDER
SECOND JUDICIAL CIRCUIT
Assistant Public Defender Fla. Bar No. 271543 Leon County Courthouse Fourth Floor, North 301 South Monroe Street Tallahassee, Florida 32301
(904) 488-2458
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished to Margene A. Roper, Assistant Attorney General, Office of Attorney General, 444 Seabreeze Boulevard, Fifth Floorr Daytona Beach, Florida 32114 by U.S. Mail, and a copy has been mailed to appellant, AILEEN CAROL WUORNOS, #150924, Broward Correctional Institution, Post Office Box 8540, Pembroke Pines, Florida 33024, on this +? & day of April, 1995.
No. 8 1, 498
AILEEN CAROL WUORNOS,
Appellant, vs.
STATE OF FLORIDA,
Appellee.
[May 9, 19961
PER CURIAM.
WE have on appeal the first-degree murder conviction and judgment of the trial court imposing a death sentence upon Aileen Carol Wuornos. WE have jurisdiction. Art. V, S 3 (b)(l), Fla.
Const.
On November 18, 1990, sixty-two-ycar-old Walter Antonio lefL Cocoa, Florida, for Montgomery, Alabama. The next day his nude body was found ina wooded area north of Cross City, Florida.
Evidence showed he had been shot four times in the back witha.22 caliber gun.
Law officers eventually arrested Aileen Carol Wuornos on charges of murdering and robbing Antonio. Ina confession, Wuornos said she was engaging in roadside prostitution when she was picked up by Antonio. She asked him if she could "make some Mooney, Il and he agreed. The pair then proceeded to an isolated wooded area.
At this point Wuornos said Antonio pulled out false police badge and said he could arrest her but would not do so if she had sex with him for free. Wuornos said she challenged him, contending he was not a law officer. He kept on making his Deland for sex, she said, and she then pulled a gun. She said a struggle ensued, during which she shot Antonio twice. According to her confession, Antonio called her a profane name, and she shot him twice more. Wuornos then said she took some of Antonio's personal effects and his car and fled.
Law officers later determined that Wuornos had pawned a ring belonging to Antonio, and they also found a number of his belongings ina mini-warehouse rented by Wuornos. Wuornos' lover, Tyria Moore, cooperate with officers and showed them where Wuornos had tossed Antonio's pocket knife, handcuffs, and flash lights, and the murder weapon into a bay near where Wuornos had lived. Officers successfully recovered these items.
At trial Wuornos eventually entered a guilty plea. A penalty phase then was conducted before a jury, which returned a death recommendation by a vote of seven to five.
In aggravation, the trial court found the following: (1) that Wuornos had nine prior convictions for violent felonies; (2) that the murder was committed during a robbery and for pecuniary gain; (3) that the murder was cold, calculated, and premeditated without pretense of moral or legal justification; and (4) that the murder was committed to avoid lawful arrest.
In mitigation, the trial court found no statutory factors present. However, the judge found the following non statutory mitigators: (1)that Wuornos suffered antisocial and borderline personality disorders; (2) that she may have been physically abused asa child; (3) that her natural father and grandfather had committed suicide; (4) that her grandmother died an alcoholic; and (5) that her mother abandoned her as an infant.
The trial court then sentenced Wuornos to death on the murder conviction and a consecutive term of seventeen years on the armed robbery conviction.
Wuornos now challenges her convictions and sentences on a number of bases. First, she argues that the trial court erred in accepting her guilty plea. As grounds, she argues that defense counsel professed a lack of experience needed to represent her during a guilt-phase trial and, asa result, had an inherent conflict of interest when permitting her to enter a guilty plea that obviated such a proceeding. We find that this argument constitutes a claim of ineffective assistance of counsel not cognizable on direct appeal, but only by collateral challenge.
&.e Kelley v, State, 486 So. 2d 578 (Fla.), cert. denied, 479 U.S. 871, 107 S. Ct. 244, 93 LA Ed. 2d 169 (1986). The record clearly reflects an abiding conviction on the part of Wuornos to plea guilty notwithstanding the possibility of receiving the death penalty, as well as her repeated assertion that counsel was effective in his representation and was following her wishes. We therefore cannot say that this record demonstrates ineffective ness on its face, which could ina proper case make the claim cognizable on direct appeal. a Lore v. State, 601 So. 2d 271, 273 (Fla. 1st DCA 1992). Because this issue is not rip for review, we will not address it here.
As her second and third issues, Wuornos similarly contends that her plea was not voluntary because defense counsel did not adequately advise her as to the consequences of her action; and that defense counsel further demonstrated ineffective ness due to alleged misstatements and misunderstanding of the applicable law. For the reasons expressed above, these ineffective ness claims are not rip for review in this appeal.
Fourth, Wuornos argues that the trial court erred in finding the murder aggravated by the factor of cold, calculated premeditation. She believes there was no proof of the careful plan or pre arranged designed required by Rogers v, State, 511 So.
2d 526 (Fla. 1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 733, 98 L. Ed. 2d 681 (1988), and that she acted under at least a pretense of moral or legal justification--self defense--in the killing. After reviewing the record, we find that the most that can be said is the Evidence is conflicting on these questions.
Wuornos was the only witness to the crime, but her exculpatory testimony law fully could be rejected by the finder of fact in light of her various inconsistent statements. Moreover, her version of events is further under mined by the fact that she armed herself in advance and earlier had confessed that she killed in order to silence her victims. The States theory of the case prevailed here, and that theory rests on sufficient evidence establishing the factor of cold, calculated premeditation. We therefore are obligated to accept that theory as law fully established. Wuornos v. State, 644 So. 2d 1012, 1019 (Fla. 1994), cert. denied, 115 S. Ct. 1708, 131 L. Ed. 2d 568 (1995). There was no error on this point.
Fifth, Wuornos contends that the instruction given to the jury on cold, calculated premeditation was the one condemned in Jackson v. State, 648 So.2d 85 (Fla. 1994), requiring that we order a new penalty phase. She candidly acknowledges her failure to object to this instruction below, but argues that the sevento-five jury recommendation demonstrates a sufficiently Ilclose case" that we should lift the procedural bar. Nothing in our law permit such a result. Under Jar-son, the failure to object raises a procedural bar that clearly applies here. We find no error.
AS her sixth point, Wuornos urges that the trial court improperly ignored available mitigating evidence about her troubled youth, her alleged intoxication at the time of the killing, and her psychological problems. We find that the trial court properly considered available evidence on these points in light of the court's determination of the credibility of evidence. The court ' s consideration of Wuornos' childhood in an abusive and tragedy-hidden environment clearly shows concern for the circumstances of her youth. Likewise, the court considered the fact that Wuornos suffered a personality disorder that may have contributed to her actions. Wc find no error in the trial court dec lining to consider the testimony of the expert Dr. Krop in light of the latter's equivocal testimony, his inability to say with certainty what her mental condition was the day of the murder, and the fact that Wuornos did not fully cooperate with Krop. Furthermore, the only evidence of Wuornos' intoxication at the time of the crime was her own statement to this effect, which the finder of fact was entitled to reject in light of her inconsistent statements.
Seventh, Wuornos argues that the trial court erred in dec lining to find the statutory factor of extreme emotional disturbance, as allegedly established in the testimony of Dr.
Delbeato. In light of the fact that this expert testimony reasonably could be interpreted as inconsistent with the factual evidence, we find no error in the trial court's exercise of its discretion. As we have noted elsewhere, a trial court may reject opinion testimony that cannot be fully squared with the facts at hand. walls v.,$tate, 641 So. 2d 381, 390-91 n.8 (Fla. 1994), cert. denied, 115 S. Ct. 943, 130L. ED. 2d 887 (1995).
Lastly, Wuornos contends that the trial court erred in not finding in mitigation the alleged fact that the victim contributed to the acts leading to his death. The gist of this argument is that, by seeking the services of a prostitute, the victim therefore "assumed the risk" of suffering bodily harm. We find that the theory advanced by Wuornos is insufficient asa matter of law to establish this particular mitigating factor. By its plain language, the statute permit this factor only where:
The victim was a participant in the defendant's conduct or con sented to the act.
5921. 141 (6) (c), Fla. Stat. (1989). It would be absurd to construed this language as applying whenever victims have engaged in some unlawful or even dangerous transaction that merely provided the killer a better opportunity to commit murder, which the victim did not intend. What the language plainly means is that the victim has knowingly and voluntarily participated with the killer in some transaction that in and of itself would be likely to result in the victim's death, viewed from the perspective of a reasonable person. An example would be two persons participating ina duel, with one being killed asa result. The statute does not encompass situations in which the killer surprises the victim with deadly force, as happened here under any construction of the facts.
Having reviewed the record for further errors and finding none, the judgment and sentences of the trial court below are affirmed.
It is so ordered.
CRIMES, C. J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and INSTEAD, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
an Appeal from theCircuitCourtin and for Dixie County, Royce Agner, Judge - Case No. 9 2 - 5 2 - CF Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public Defender, Second JudicialCircuit, Tallahassee, Florida, for Appellant Robert A. Butterworth, Attorney General and Margene A. Roper, Assistant Attorney General, Daytona Beach, Florida, for Appellee