IN THE SUPREME COURT OF FLORIDA
DAVID SNELGROVE, ) ) Appellant, ) ) vs. ) CASE NO. SC02-2242 ) STATE OF FLORIDA, ) ) Appellee. ) ______)
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND FOR FLAGLER COUNTY, FLORIDA
AMENDED INITIAL BRIEF OF APPELLANT
JAMES B. GIBSON PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT
JAMES R. WULCHAK CHIEF, APPELLATE DIVISION ASSISTANT PUBLIC DEFENDER Florida Bar No. 249238
LARRY B. HENDERSON ASSISTANT PUBLIC DEFENDER Florida Bar No. 0353973 112 Orange Avenue, Suite A Daytona Beach, Florida 32114
(386) 252-3367
ATTORNEYS FOR APPELLANT TABLE OF CONTENTS
PAGE NO.
TABLE OF CONTENTS i-iii
TABLE OF CITATIONS iv-xv
PREFACE xx
STATEMENT OF THE CASE 1
STATEMENT OF THE FACTS 16
SUMMARY OF ARGUMENT 33
ARGUMENT
POINT I 35 THE TRIAL COURT ERRED IN DENYING COUNSEL’S MOTION TO WITHDRAW BASED ON CONFLICT OF INTERESTS, DEPRIVING THE DEFENDANT OF HIS FLORIDA AND FEDERAL CONSTITUTIONAL RIGHTS TO COUNSEL, DUE PROCESS, EQUAL PROTECTION, AND A FAIR TRIAL.
POINT II 41 THE TRIAL COURT ERRED IN FAILING TO CONDUCT A RICHARDSON INQUIRY WHERE THE STATE FAILED TO DISCLOSE TO THE DEFENSE A LETTER WRITTEN BY A STATE’S WITNESS AND WHERE THE STATE ALLOWED FALSE TESTIMONY TO BE PRESENTED BY ITS WITNESS.
i POINT III 51 THE PROSECUTOR’S IMPROPER AND INFLAMMATORY REMARKS TAINTED THE JURY TRIAL AND RENDERED THE ENTIRE PROCEEDING FUNDAMENTALLY UNFAIR.
POINT IV 57 THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT’S MOTION FOR A RECESS IN THE PENALTY PHASE PRIOR TO CLOSING ARGUMENTS, DEPRIVING SNELGROVE OF HIS RIGHT TO A FAIR TRIAL AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL, UNDER THE FEDERAL AND FLORIDA CONSTITUTIONS.
POINT V 60 THE DEFENDANT’S TWO DEATH SENTENCES ARE CONSTITUTIONALLY INFIRM WHERE THE JURY ONLY RENDERED A SINGLE SENTENCING RECOMMENDATION FOR THE TWO SEPARATE MURDERS.
POINT VI 61 PLACING A HIGHER BURDEN OF PERSUASION ON THE DEFENSE TO PROVE THAT LIFE IMPRISONMENT SHOULD BE IMPOSED THAN IS PLACED ON THE STATE TO PERSUADE THAT CAPITAL PUNISHMENT SHOULD BE IMPOSED VIOLATES FUNDAMENTAL FAIRNESS AND DENIES DUE PROCESS.
POINT VII 67 THE APPELLANT’S DEATH SENTENCE WAS IMPERMISSIBLY IMPOSED, RENDERING THE DEATH SENTENCE UNCONSTITUTIONAL.
ii POINT VIII 95 THE JURY’S RECOMMENDATION AT THE PENALTY PHASE WAS TAINTED BY HIGHLY INFLAMMATORY AND IMPROPER VICTIM IMPACT EVIDENCE, RENDERING THE DEATH SENTENCE UNCONSTITUTIONAL.
POINT IX 99 FLORIDA’S DEATH PENALTY IS UNCONSTITUTIONAL UNDER RING V. ARIZONA.
CONCLUSION 100
CERTIFICATE OF SERVICE 100
iii TABLE OF CITATIONS
PAGE NO.
CASES CITED:
Alford v. State 307 So.2d 433, 444 (Fla.1975) 61, 67
Allen v. State 28 Fla. L. Weekly S604 (Fla. July 10, 2003) 99
Almeida v. State 748 So.2d 922, 933 (Fla.1999) 66, 67
Alvord v. State 322 So.2d 533, 540 (Fla.1975) 74
Amazon v. State 487 So.2d 8 (Fla. 1986) 43, 60, 61, 65, 67, 97
Apprendi v. New Jersey 530 U.S. 466 (2000) 99
Arango v. State 411 So.2d 172, 174 (Fla. 1982) 61 Armstrong v. State 399 So.2d 953, 960 (Fla. 1981) 50
Babb v. Edwards 412 So.2d 859 (Fla. 1982) 37
Beachum v. State 547 So.2d 288 (Fla. 1st DCA 1989) 58
Bellows v. State
iv 508 So.2d 1330, 1331 (Fla. 2d DCA 1987) 37, 38 Berger v. United States 295 U.S. 78, 88 (1935) 51
Bertolotti v. State 476 So. 2d 130, 133 (Fla. 1985) 52, 55
Besaraba v. State 656 So.2d 441, 445-446 (Fla. 1995) 88
Blanco v. State 706 So.2d 7 (Fla. 1997) 83
Booker v. State 773 So.2d 1079, 1091 (Fla.2000) 76
Booth v. Maryland 482 U.S. 496 (1987) 97
Bottoson v. Moore 833 So. 2d 693 (Fla. 2002) 99
Brady v. Maryland 373 U.S. 83 (1963) 47, 48, 50
Brooks v. Kemp 762 F. 2d 1383 (11th Cir. 1985) 53
Burch v. State 522 So.2d 810 (Fla. 1988) 89
C.D.B. v. State 662 So.2d 738, 741 (Fla. 1st DCA 1995) 45
Campbell v. State 571 So.2d 415 (Fla. 1990) 82, 89, 90
v Campbell v. State 812 So.2d 540, 543 (Fla. 4th DCA 2002) 69 Card v. State 803 So. 2d 613 (Fla. 2001) 56
Carter v. State 560 So.2d 1166 (Fla. 1990) 88, 89
Castro v. State 597 So.2d 261 (Fla. 1992) 81
Cave v. State 727 So.2d 227 (Fla.1998) 83
Chandler v. State 534 So.2d 701, 704 (Fla. 1988) 77
Chapman v. California 386 U.S. 18, 23 & n. 8 (1967) 39
Cheshire v. State 568 So.2d 908, 912 (Fla. 1990) 75
Cipollina v. State 501 So.2d 2, 5 (Fla. 2d DCA 1986) 49
Cole v. State 701 So.2d 845, 852 (Fla. 1997) 68
Cooper v. State 28 Fla. L. Weekly S497 (Fla. June 26, 2003) 50
Cox v. State 819 So. 2d 705 (Fla. 2002) 45, 46, 56
Craig v. State 685 So.2d 1224, 1226 -1227 (Fla. 1996) 50
vi Cuyler v. Sullivan 446 U.S. 335, 341 (1980) 37, 40 D.N. v. State 2003 WL 22240184 (Fla. 4th DCA Oct. 1, 2003) 59
Davis v. State 604 So.2d 794 (Fla. 1992) 80
Davis v. State 703 So.2d 1055, 1060-61 (Fla.1997) 65
DeAngelo v. State 616 So.2d 440 (Fla. 1993) 79
Douglas v. State 575 So.2d 165, 166 (Fla. 1991) 75
Eddings v. Oklahoma 455 U.S. 104, 114-115 (1982) 82
Elledge v. State 346 So.2d 948 (Fla. 1977) 71
Elledge v. State 706 So.2d 1340, 1346 (Fla.1997) 65
Fennie v. State 648 So.2d 95 (Fla. 1994) 57
Ferrell v. State 653 So.2d 367, 371 (Fla. 1995) 85
Francis v. Franklin 105 S.Ct. 1965, 1970 (1985) 66
Franklin v. State
vii 825 So.2d 487 (Fla. 5th DCA 2002) 52
Freeman v. State 761 So.2d 1055, 1061 (Fla. 2000) 48 Garcia v. State 622 So. 2d 1325 (Fla. 1993) 53
Garron v. State 528 So. 2d 353 (Fla. 1988) 52, 53, 55, 56 Giglio v. United States 405 U.S. 150 (1972) 50
Glasser v. U.S. 315 U.S. 60 (1942) 39
Gorham v. State 597 So.2d 782, 784-785 (Fla. 1992) 50
Guzman v. State 28 Fla. L. Weekly S829 (Fla. Nov. 20, 2003) 50
Hall v. Wainwright 733 F.2d 766 (11th Cir. 1984) 51
Heath v. State 648 So.2d 660 (Fla. 1994) 89
Hernandez v. State 851 So.2d 892, 894 (Fla. 3rd DCA 2003) 44, 46
Holloway v. Arkansas 435 U.S. 475, 481 (1978) 37, 39, 40
Huff v. State 437 So. 2d 1087 (Fla. 1983) 53
viii Hunter v. State 817 So.2d 786 (Fla. 2002) 40
In re Winship 397 U.S. 358 (1970) 66, 67 Jackson v. State 704 So.2d 500 (Fla. 1997) 85
Johnson v. State 842 So.2d 228, 230 (Fla. 1st DCA 2003) 69
Joubert v. State 847 So.2d 1056 (Fla. 3rd DCA 2003) 45
Kearse v. State 770 So.2d 1119, 1132 (Fla. 2000) 69, 96
King v. Moore 831 So.2d 143 (Fla. 2002) 99
King v. State 390 So.2d 315, 320-321 (Fla. 1980) 72
Knowles v. State 632 So.2d 62 (Fla. 1993) 88, 89
Kramer v. State 619 So.2d 274 (Fla. 1993) 85 Kransnosky v. Robbins 120 So.2d 184, 185 (Fla.1960) 70
Larkins v. State 655 So.2d 95 (Fla. 1995) 85
Lee v. State 690 So.2d 664 (Fla. 1st DCA 1997) 38-40
ix Lesko v. Lehman 925 F.2d 1527, 1541 (3d Cir.) 51
Lucas v. State 376 So.2d 1149 (Fla. 1979) 72 Luis v. State 851 So.2d 773, 776-777 (Fla. 2nd DCA 2003) 44
Lukehart v. State 776 So.2d 906,925 (Fla. 2000) 81
Mahn v. State 714 So.2d 391 (Fla. 1998) 83
Martin v. State 420 So.2d 583 (Fla. 1982) 68
Matheson v. State 28 Fla. L. Weekly D1791 19
Mendyk v. State 545 So.2d 846, 850 (Fla. 1989) 76
Monge v. California 118 S.Ct. 2246, 2252 (1998) 67
Moore v. State 623 So.2d 608, 609 (Fla. 4th DCA 1993) 50
Morgan v. State 639 So.2d 6 (Fla. 1994) 88, 89
Morris v. State 557 So.2d 27 (Fla. 1990) 89
Muhammad v. State
x 782 So. 2d 343 (Fla. 2001) 55
Mullaney v. Wilbur 421 U.S. 684, 698-701 43, 60, 61, 67
Nibert v. State 574 So.2d 1059 (Fla. 1990) 85 Occhicone v. State 768 So.2d 1037, 1041 (Fla.2000) 47
Ortiz v. State 844 So.2d 824, 825-826 (Fla. 5th DCA 2003) 37, 38
Pait v. State 112 So. 2d 380 (Fla. 1959) 56
Pangborn v. State 661 So.2d 1182 (Fla. 1997) 60
Payne v. Tennessee 501 U.S. 808 (1991) 97
Perriman v. State 731 So.2d 1243, 1246 (Fla.1999) 70
Power v. State 605 So.2d 856, 863 (Fla. 1992) 77
Provence v. State 337 So.2d 783 (Fla. 1976) 81
Ray v. State 755 So.2d 604, 611 (Fla. 2000) 81
Remeta v. State 710 So.2d 543, 544 (Fla. 1998) 72
xi Rhodes v. State 547 So. 2d 1201 (Fla. 1989) 56, 78
Richardson v. State 246 So.2d 771, 775 (Fla.1971) 44, 46, 48, 50
Ring v. Arizona 122 S.Ct. 2428 (2002) 99 Ring v. Arizona 522 U.S.__, 122 S.Ct. 2428 (2002) 60, 99
Rivera v. State 561 So.2d 536 (Fla. 1990) 88
Robinson v. State 520 So. 2d 1, 7 (Fla. 1988) 57
Rogers v. State 511 So.2d 526 (Fla. 1987) 82
Rogers v. State 844 So.2d 728 (Fla. 5th DCA 2003) 3
Rolling v. State 695 So.2d 278 (Fla.1997) 73
Rose v. State 675 So.2d 567, 573 (Fla. 1996) 85
Ross v. State 474 So.2d 1170, 1174 (Fla. 1985) 83
Santos v. State 591 So.2d 160, 163 (Fla. 1991) 75
Schwab v. State 636 So.2d 3, 8 (Fla. 1994) 77
xii Sireci v. Moore 825 So. 2d 882 (Fla. 2002) 71
Sliney v. State 699 So.2d 662 (Fla. 1997) 57
Smith v. State 525 So.2d 477, 480 (Fla. 1st DCA 1988) 58 Songer v. State 544 So.2d 1010 (Fla. 1989) 89
State v. Cruz 851 So.2d 249, 251-252 (Fla. 3rd DCA 2003) 44
State v. DiGuilio 491 So.2d 1129, 1138 (Fla. 1986) 46
State v. Dixon 283 So.2d 1, 9 (Fla.1973) 64, 68, 74, 79
State v. Gillespie 227 So.2d 550, 554, 556 (Fla. 2d DCA 1969) 48, 49
State v. Knight 853 So.2d 380 (Fla. 2003) 47, 49
State v. Schopp 653 So.2d 1016, 1020 (Fla. 1995) 45, 46
Stewart v. State 558 So.2d 416 (Fla. 1990) 88
Strickland v. Washington 466 U.S. 668, 686 (1984) 37, 40
Strickler v. Greene
xiii 527 U.S. 263, 281-82 (1999) 47, 49
Suda v. State 838 So.2d 665, 666 (Fla. 1st DCA 2003) 46
Tedder v. State 322 So.2d 908 (Fla.1975) 43, 60, 61, 67
Terry v. State 668 So.2d 954, 965 (Fla.1996) 73 Thomas v. State 785 So.2d 626 (Fla. 2nd DCA 2001) 38
Thornton v. State 852 So.2d 911 (Fla. 3rd DCA 2003) 53 United States v. Bagley 473 U.S. 667 (1985) 47, 50
United States v. Meros 866 F.2d 1304, 1309 (11th Cir. 1989) 50
Urbin v. State 714 So. 2d 411 (Fla. 1998) 55, 56
Valle v. State 474 So.2d 796, 806 (Fla.1985) 65
Vierick v. United States 318 U.S. 236, 247 (1943) 51
Way v. State 760 So.2d 903, 910 (Fla.2000) 47, 48
Wilcox v. State 367 So.2d 1020, 1023 (Fla. 1979) 45
xiv Windom v. State 656 So.2d 432 (Fla. 1995) 97, 99
Wood v. Georgia 450 U.S. 261, 271 (1981) 37
OTHER AUTHORITIES: Amendment V, United States Constitution 43, 60, 61, 65, 67 Amendment VI, United States Constitution 34, 37, 43, 60, 61, 65, 67, 99 Amendment VIII, United States Constitution 43, 60, 61, 67, 97 Amendment XIV, United States Constitution 34, 43, 60, 61, 65, 67 Article I, Section 2, Florida Constitution 61, 67 Article I, Section 9, Florida Constitution 43, 60, 61, 67 Article I, Section 16, Florida Constitution 43, 60, 61, 67 Article I, Section 17, Florida Constitution 43, 60, 61, 67 Article I, Section 22, Florida Constitution 43, 61, 67
Section 27.53 (3), Florida Statutes 48 Section 90.403, Florida Statutes 73, 98 Section 921.141, Florida Statutes 60, 61, 62, 67, 68, 71, 74
Florida Standard Jury Instruction (Crim.) 7.11. Penalty Proceedings, Capital Cases 63 Rule 3.220(b)(1)(B), Florida Rule Criminal Procedure 43, 78
xv PREFACE
“The Pusher” my gun. words and music by Hoyt Axton (©Irving Music Inc. 1968) God damn The Pusher. God damn The Pusher. I said God damn, God damn The Pusher man. You know I've smoked a lot of grass O' Lord, I've popped a lot of pills But I never touched nothin' Robinson v. California, 370 U.S. 660, 667 & That my spirit could not kill. 672 (1962): “Narcotic addiction is an illness.” You know, I've seen a lot of people walkin' 'round “To be a confirmed drug addict is to be one of the With tombstones in their eyes walking dead.” But the pusher don't care “The addict is under compulsions not capable of Ah, if you live or if you die. management without outside help.”
God damn, The Pusher. God damn, I say The Pusher. Step #1 of Alcoholics Anonymous’ 12-step I said God damn, God damn The Pusher man. recovery program: “We are powerless over our dependencies and You know the dealer, the dealer is a man our lives have become unmanageable.” With the love grass in his hand Oh but the pusher is a monster. Good God, he's not a natural man. Romans 7:17 “For I have the desire to do what is good but I The dealer for a nickel cannot carry it out.” Lord, will sell you lots of sweet dreams. Ah, but the pusher ruin your body Lord, he'll leave your, he'll leave your mind to scream.
God damn, The Pusher. God damn, God damn the Pusher. I said God damn, God damn The Pusher man.
Well, now if I were the president of this land You know, I'd declare total war on The Pusher man I'd cut him if he stands, and I'd shoot him if he'd run Yes I'd kill him with my Bible and my razor and
xvi STATEMENT OF THE CASE
The State charged David Snelgrove by indictment with two counts of first- degree murder (premeditated and/or felony), armed robbery and burglary of a dwelling with an assault. (V1, R12-13)1 The defense unsuccessfully contested the constitutionality of Florida’s death penalty, contending among other things that it is unreliably and arbitrarily imposed, it is unconstitutionally imposed by a judge rather than by jury, the aggravating circumstances are vague, the burden of persuasion is shifted to the defendant, and victim impact testimony is irrelevant and unconstitutional under Florida’s system of weighing aggravating and mitigating circumstances. (V1, R38-85, 86-113; V2, R350-352; V3, R353-376, 394-420; V4,
R565-753; V5, R754-852; V3, R510; V9, R1563)
The Public Defender’s Office moved to withdraw after the State interviewed former public defender clients seeking to discover statements made by Snelgrove while in jail awaiting trial. (V7, R1262-63, 1264-69; V18, T3-6; V36, T46-52; SR
70-77)2 The court denied the motion after the State claimed it would not call those
1The symbol “R” refers to the record on appeal (pleadings); the symbol “T” refers to the transcripts, and “V” to the volume number of the transcript referenced to the sequential numbers assigned by the clerk’s office for the entire record on appeal. “SR” refers to the supplemental record filed September 17, 2003.
2 According to the motion and undisputed argument of counsel, the State Attorney’s Office specifically had law enforcement interview public defender
1 inmate witnesses. (V7, R1285-86) The motion was unsuccessfully renewed when defense counsel learned that the State intended to call other witnesses previously represented by the public defender’s office, including Gary Mathews. The State earlier had assured the court and defense counsel that Mathews had private counsel while seeking a deal from the State in exchange for testifying against Snelgrove, when in fact Mathews was represented by the public defender’s office. (V7,
R1296-1303, 1307-09; 1311; V36, T46-52)
During trial, the public defender again sought to withdraw because of the
Mathews’ conflict. (V19, T4-6; V24, T1052; V29, T673) Upon inquiry by the State and court, Mathews waived any conflict with the public defender’s representation
(V29, T694-705) and, in camera, defense counsel revealed that confidential communications occurred between Mathews and an assistant public defender about the nature of Mathews’ charges and the fact that Mathews could have been charged with more serious crimes (life felonies), a fact Mathews denied. (V29, T709-714)
Additionally, it was proffered that Mathews had discussed with his attorney his wish to make a deal by testifying against Snelgrove, a fact on which Mathews vacillated repeatedly during his proffered testimony. (V29, T696-700, 736) Defense clients who had been confined with Snelgrove to discover any statements he may have made, including specific questions about defense tactics and whether the defense attorney thought he had a good case. (V18, T5)
2 counsel announced that, even though Mathews waived the conflict, Snelgrove, on trial for his life, did not waive the conflict, and the attorney otherwise felt ethically constrained by prior representation of the other former-clients in addition to
Mathews. (V18, T5-9; 29-32, 41; V29, T705-706; V18, T5-9) Defense counsel questioned the State’s promise that former-clients would not be called because the
State Attorney had recently failed to honor a similar promise in another homicide case. (V18, T5-7)3
Elected State Attorney John Tanner personally prosecuted this case during the jury trial in the Seventh Circuit Court in Flagler County, the Honorable Kim C.
Hammond presiding. The State Attorney repeatedly objected during Mathews’ cross-examination when, in response to proper leading questions by the defense attorney, Mathews gave contradictory testimony. In a speaking objection, the State
Attorney told Mathews and the jury the “correct” answer:
Q: [defense counsel]: And it’s your testimony that he
3 Counsel referenced a case then pending on appeal in the fifth district where State Attorney Tanner had stipulated that an admittedly tainted confession would not be used at trial. After the motion to suppress hearing was canceled based on that stipulation, the State Attorney, over objection, reopened his case and introduce the tainted confession to rebut defense counsel’s closing argument. See Rogers v. State, 844 So.2d 728 (Fla. 5th DCA 2003). Defense counsel here was concerned that the same scenario would occur and that the conflict witnesses, undeposed and uninvestigated because of the conflict, would be called to rebut something that counsel did, said or presented as evidence. (V18, T5-7)
3 [Snelgrove], he told you he went out, out the back door? A: [Gary Mathews] Yes. Q: Okay. A: He went out the way he came in as far as I know. That’s what he said. Q: So he, he came in the back door. A: Yes. [State Attorney Tanner]: Objection, Your Honor. He’s trying to – [Mathews]: The door at the back of the house. I don’t know – [State Attorney Tanner]: Objection, Your Honor. [The Court]: Excuse me. [State Attorney Tanner]: He’s trying to put words – [Defense counsel]: He said he came out the same – [State Attorney Tanner]: He’s trying to put words in the mouth of the witness. What Mr. Snelgrove said is he went out the way he came in. [Mathews]: That’s what I was fixing to say. * * * Q: David told you he went out the back door. [State Attorney Tanner]: Objection. [Mathews]: He told me he went out the same door – [State Attorney Tanner]: Objection. (V30, T755-756).
During Snelgrove’s guilt phase closing arguments to the jury, the State
Attorney, addressing questions posed by the defense about the absence of the victims’ blood on the alleged weapon, “testified” to facts not in evidence that the crime lab had not tested all of the blood scrapings from the knife, and thus, just because the victims’ blood was not discovered on the knife, did not mean it was not in the scrapings not tested. (V31, T964) The prosecutor later argued:
4 [State Attorney Tanner]: You know, it’s funny. No one ever wants to take responsibility even when they do the worst. Shouldn’t have happened that way. Shouldn’t have happened that way. Oh, my gosh, look where I am. If they had only stayed asleep, I’d have never killed them. If I’d have only found the purse right away and snuck back out the window, I’d have never had to kill them. [Defense objection on prosecutorial misconduct, appealing to the passions, emotions of the jury and relevance, was overruled.] [State Attorney Tanner]: So is it their [the victims’] fault they had money? Maybe that’s where the fault really is. . . . You know, they invited themselves to be killed. How about that? They didn’t have a burglar alarm. See, if they’d had a burglar alarm he wouldn’t have gotten in and gotten away and he would have never tried it, probably, because he wouldn’t have gone in there with a burglar alarm.
(V31, T973-974) Later, the State Attorney argued Snelgrove lacked remorse:
[State Attorney Tanner]: You know, he calmly went home. He washed up, disposed of the knife, went out again and did his drugs. Now, it wasn’t this, oh, my God, what have I done? What have I done? [Objection overruled.] There was a let’s go party, let’s go get some snort, let’s go do some dope. Then the next morning, let’s go fishing.4 Hmm.
(V31, T975) The State Attorney further offered during closing (despite the lack of evidence and over defense objection) that Mathews did not gain his information from newspaper accounts because the information to which he had testified had not appeared in any newspaper. (V31, T976)
4 While there was testimony that the defendant’s cousin, Jeffrey McRae, tried to pawn his fishing rod the following day, the State Attorney’s “gone fishing” and “gone partying” scenario came from out of the blue, with no evidentiary basis that Snelgrove went fishing or partying after the crimes. (V28, T469-470)
5 During the defense final argument, counsel asked rhetorical questions about how was it possible that, since Snelgrove was bleeding so profusely throughout the victims’ house and on their furniture and belongings, his blood was not on their bodies and why was their blood not on Snelgrove. (V31, T948-950, 980) The State
Attorney improperly5 interrupted and volunteered to “offer a scenario” to explain this deficiency in the evidence to the jury. (V31, T980)6
The jury found the defendant guilty as charged on all four counts, finding both premeditated and felony murder for both homicides. (V8, R1431-34) Prior to and during the penalty phase, when the defense unsuccessfully renewed objections to victim impact testimony as being irrelevant to the weighing process, the trial judge was openly skeptical about how the jury was to consider this evidence that was totally irrelevant to the task of weighing statutory aggravating circumstances and mitigating factors. (V24, T1052; V32, T48-50, 75-91, 94; V33, T204; V34,
T457-459; V35, T638) Objections to the constitutionality of Florida’s death penalty and all previous motions to withdraw due to conflict of interests were unsuccessfully renewed. (V32, T46, 94) The defendant specifically objected to
5 As recognized by the trial judge in declaring the State Attorney “out of order,” even before the defense could object. (V 31, T980)
6 Mr. Tanner, having successfully made his point for the jury, thanked the judge for his admonishment. (V31, T980)
6 standard penalty phase jury instructions (including the jury’s “mere advisory” role in sentencing and the mitigation must outweigh the aggravation test), specifically requested additional instructions to accurately state current Florida law regarding aggravation and mitigation, and objected to the State’s proposed amendments (that contemporaneous convictions could be considered as “prior conviction of a felony involving the use of violence” and altering the standard instruction of a “previous felony conviction for which the defendant was under a sentence of imprisonment or on community control” to delete the language referring to “under a sentence of imprisonment.”)7 (V24, T1052-1054; V32, T11, 16, 20, 28, 40; V34, T474-475,
509, 511; V35, T620-622, 628, 630-644; SR 2-53)
In its presentation during the penalty phase, the State called three witnesses, two of whom were the victims’ children who read a statement from the victims’ pre-teen granddaughter and who testified about their sense of loss and the loss to the church and community, said testimony encompassing 30 pages and including
7 The State Attorney convinced the trial court that this language was inapplicable to the instant case and hence was unnecessary surplusage, over the defendant’s objection that the entire instruction reading the entire statutory aggravating language was necessary so that the defense would have legal support in the jury instructions for his jury argument that the community control status should be afforded less weight as it was not a “sentence of imprisonment,” a more serious aggravator under the statutory scheme. (V35, T628; see V35, T669)
7 eleven of the State’s twelve penalty exhibits.8 (V32, T94-122)9 The only other substantive testimony the State presented in the penalty phase was a paragraph establishing that at the time of the crimes Snelgrove was on felony community control for tampering with evidence (swallowing a piece of crack cocaine the preceding year when confronted by police in Orlando). (V32, T124-125)
In the defense case, a psychologist was explaining the strong adverse effect that the deaths of Snelgrove’s parents less than a month apart had on Snelgrove, which had prompted a severe sense of loss and the downhill slide into crack cocaine addiction, when he was interrupted by a spurious objection from the State
Attorney. (V33, T375-78) Once again by speaking objection in front of the jury, the State Attorney impugned the expert for “again weaving this story of the terrible conditions this Defendant is suffering, but it’s just a story. There’s no evidence.”
(V33, T378) During cross-examination of the psychologist, the State
8 The prosecutor noted to the witness and the jury that certain portions of the granddaughter’s letter had been “redacted” as “objectionable,” prompting an objection and motion for mistrial from the defendant that the state’s gratuitous comment placed irrelevant considerations before the jury, possibly leading to juror speculation about other things that may have been said in the letter, but for the defendant’s objections. (V32, T95-99)
9 These eleven exhibits were photographs of the victims and their family throughout the years and during holidays and special events (e.g., their “only granddaughter’s” birthday party, or the Rose Bowl parade when the granddaughter was only six years old.)
8 Attorney requested a definition of the term “psychobabble.” (V33, T384) He later referred to the testimony of this expert and a PET-Scan expert as “psychobabble” and minimized the PET-Scan evidence of brain damage with a mere, “So what, the defendant’s brain absorbs sugar at a different rate?” (V35, T649).
Throughout the final two days of the penalty phase trial, lead defense counsel indicated his total mental and physical exhaustion from the lengthy trial proceedings, two-hour round trip drive time to this outlying county, and his late- night and early morning preparation on the testimony, witness coordination, and review of penalty phase jury instructions and objections, which, he personally believed, was adversely effecting his performance. (V34, T472-73, 514-15; V35,
T613-17, 644, 658, 693-94) The trial court, during the penalty phase charge conference that began midday Friday, May 31, 2002 (the birthday of one of the victims - V8, R1519) agreed that all involved were tired and was leaning toward the requested recess. (V32, T133-135; V34, T472-473, 513-515; V35, T611-617) At the urging of the State Attorney, who denigrated defense counsel, facetiously offered a half-hour nap and improperly accused the defense counsel of unethical delaying tactics in the hope that a juror would be injured in a traffic accident, the court denied the defense requested recess. (V35, T613-617) After the jury charge conference, the court recessed for a 50-minute “snack break” before bringing the
9 attorneys and jury back for the closing arguments. (V35,T642)
In his penalty phase closing, the prosecutor denigrated the mitigation evidence regarding Snelgrove’s organic brain damage (as demonstrated by unrefuted psychological testing and a PET-scan)10 and his crack cocaine addiction, a very potent addiction he had unsuccessfully attempted to overcome.11 The State
Attorney, after reminding the jury that, to avoid a miscarriage of justice, they must follow the law as the judge would explain it, then informed the jury that these mental mitigating circumstances were not an “excuse” for first degree murder. (V35, T654-
655) Defense counsel’s objection that the State had engaged in an improper argument and an affirmative misstatement of law by equating mitigators with an
“excuse” for the crime was “noted” by the trial court and the State Attorney was
10 The State Attorney classified the organic brain damage as a scant “slow glucose uptake,” and characterized the testimony of Snelgrove’s mental deficiencies as mere “psychobabble,” explaining to the jury that “this man was not insane, he knew right from wrong.” (V35, T649)
11 When his repeated efforts at out-patient treatment were unavailing, the evidence showed, Snelgrove had actively sought to get placed in a residential drug treatment facility. But, after successfully and proudly being off of crack cocaine for the three months in the Salvation Army’s residential program, a hopeful David Snelgrove was spuriously, “perhaps unethically” (according to an expert witness) and unceremoniously, in a large-scale general crackdown, ousted from the drug treatment program for kissing a female co-resident, spiraling David into utter despair and leading to a relapse into his crack cocaine addiction, which he was able to avoid on his own, amazingly, for over a week. (V35, T584-593, 599-600)
10 permitted to continue. (V35, T655)
Following the arguments and jury instructions (to which the defendant renewed his previous objections [V35, T692]), the prosecutor noted that defense counsel “has not been falling asleep or closing his eyes or doing anything like he’s not awake,” (V35, T692-694), defense counsel responding by noting for the record that he had just reviewed his notes and realized that, due to his exhaustion, he had inadvertently omitted about fifteen points he had intended to review for the jury, so
“ I may not have fallen asleep, but I have been deficient, I believe.” (V35, T694)
The jury returned one recommendation for the two murders, recommending death by a vote of seven-to-five. (V8, R1473; V35, T699-700)
At a Spencer hearing, the defense presented additional testimony from a jail supervisor who indicated that David Snelgrove had not been involved in any altercations while incarcerated for the preceding two years, nor did he present any disciplinary or management problem to the corrections officers at the detention facility. (V36, T14) David Snelgrove stood before the victims’ family and expressed his deep sorrow:
Snelgrove: I wasn't prepared for this. First of all, I'd like to say that I'm sorry. . . . I never wanted this to go to trial. I just want everybody to get on with their lives and I can get on with mine. And I feel that, for what it's worth, that what happened to me, that maybe I could stop that from happening to somebody else if I had a life
11 sentence. And my whole family is falling apart, too. I have no explanation. I have no excuse. There is no excuse. I made the wrong choices. And I just found out I have a cousin that was doing real good, had a wife, had a kid, had a house, had a good job, and now he's wanted by the police for, for rape. This is in Orlando. All because of cocaine. All I can say is that I’m sorry, and thank you.
(V36, T26-27)
At the same hearing, the defense renewed his previous motions, including the motion to withdraw as counsel due to a conflict. (V36, T39, 45-48) During the renewed argument on the motion to withdraw, the State produced a previously undisclosed letter written by the conflict witness, Mathews, to the state attorney’s office indicating that on June 27, 2000 (a day and a half after David Snelgrove’s arrest), he had information on Snelgrove’s case and it would be a conflict for his assistant public defender to contact the state about this since they represented both him and Snelgrove. (V36, T48-51) Defense counsel informed the court of a discovery violation since this was the first he had been informed of this Mathews’ letter, a letter which, counsel argued, conflicted with Mathews’ trial testimony that he had not spoken with Snelgrove for the first two days Snelgrove had been in the cell. (V36, T51) The court stood on its previous rulings, including the conflict issue, without addressing the discovery violation, believing such additional issues
12 should be addressed only “down the road” for “another day.” (V36, T51-52)
After receiving sentencing memoranda, the court sentenced Snelgrove to death, finding for both counts the aggravating factors: (a) a previous conviction of a felony of tampering with evidence, for which he had been placed on community control;12 (b) a previous conviction of another capital felony or of a felony involving the use or threat of violence to the person, to-wit: the contemporaneous murder of the other victim; (d) while engaged in the commission of a robbery or burglary and (f) for pecuniary gain, which the court considered to be merged into a single aggravator; (h) heinous, atrocious, or cruel, the court finding the knife and bludgeoning attack on the much older and smaller victims “viscous” (sic) and
“deliberate” and that each victim was conscious during at least the first few seconds of the attack; and (m) the victims were particularly vulnerable due to their advanced ages. (V9, R1567-1571, 1574-1578)
The court rejected the statutory mitigating factors of (a) no significant history of prior criminal activity;13 (d) and (e) that the defendant was an accomplice or was
12 with no mention of the relatively minor nature of the offense, i.e., a crack addict swallowing his cocaine when confronted by police.
13 not mentioning that the defendant’s previous convictions had all been relatively minor and were all drug related.
13 under the influence of another;14 (f) the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired,15 and the defendant’s age of 27.16
(V9, R1571-1572, 1578-1579)
The court found the statutory mitigating circumstance of “under the influence of extreme mental or emotional disturbance” and noted the presence of cocaine in
Snelgrove’s system at the time of the murder and his drug addiction and craving for cocaine “certainly had some impact on Mr. Snelgrove’s thinking at the time of the murders.”17 (V9, R1571-1572, 1578-1579) The trial court failed to indicate what
14 not mentioning evidence that, since the defendant had been bleeding profusely everywhere after the break-in, yet his blood was not found mingled with that of the victims on their bodies, another person must have also entered the house either prior to or with the defendant and actually committed the murders.
15 incorrectly claiming the state had presented evidence to rebut the defendant’s abnormal brain function and somewhat limited intelligence (despite the lack of any rebuttal testimony or any refutation of the defense evidence), and not mentioning or disputing that the defense experts had presented unrefuted physical evidence and testimony specifically indicating that Snelgrove was substantially impaired in conforming his conduct.
16 without any analysis whatsoever, despite evidence of a violence-free life up to that point, with only minor drug-related offenses.
17 but made no mention of the defendant’s biological mental disturbance, the organic brain damage and malfunctions to the temporal lobes and subcortical areas of the defendant’s brain (which cause problems with control of one’s emotions, impulses, and aggression), nor without mention of Snelgrove’s low intelligence
14 weight was given to this statutory mitigation. (V9, R1571-1572, 1578) The court also found, without discussion or mention of the weight given them, the following nonstatutory mitigating factors: 1) Snelgrove’s long history of drug addiction; 2)
Snelgrove’s attempts to obtain treatment for his drug addiction; 3) The presence of cocaine in Snelgrove’s bloodstream at time of the murder; 4) Snelgrove’s history of gainful employment and willingness to work hard; 5) Snelgrove’s capacity to form loving relationship with his family; 6) Snelgrove’s show of emotion in regards to remorse for his crimes; 7) Snelgrove’s educational level; 8) Snelgrove’s abnormal brain function; 9) Snelgrove’s learning disability; 10) Snelgrove’s low intelligence; 11) The fact that Snelgrove lost both of his parents in the past five years; and, 12) The fact that Snelgrove’s criminal history does not evidence previous violent offenses. (V9, R1573, 1580)
In conclusion, the court, without detail, simply stated that “the mitigating circumstances are insufficient to outweigh the aggravating factors which have been found to exist” and therefore support the imposition of the death penalty. (V9,
R1581) The court adjudicated Snelgrove guilty of the four charges and also imposed two concurrent life sentences for the armed burglary and armed robbery level, his prenatal alcohol exposure and childhood ingestion of a large quantity of a relative’s Haldol, and crack cocaine’s inflammation of existing psychotic disturbances, and intensification of his ongoing manic symptoms.
15 convictions, all sentences to run concurrent. (V9, R 1581-1595; V37, T38-39)
The defendant’s motion for new trial, which included argument on the discovery violation caused by the State’s failure to divulge a prior letter written by a witness, Mathews, to the state attorney, was denied. (V9, R1555-1560, 1690)
STATEMENT OF THE FACTS
Neighbors, becoming concerned over their whereabouts, went to the residence of Glyn and Vivian Fowler, where they discovered a broken window and cut screen at the back of the residence. Blood was on the sill and the curtain was hanging out. (V25, T64-65, 118) Seeing blood on the kitchen floor, they called the police.
Upon arriving, police found the residence locked and pried open a sliding door to gain entry. (V25, T72-74, 78, 81-84) Inside, they found the bodies of the
Fowlers in their bedroom, the farthest room from the broken window. (V25, T84-
85, 125) Blood droplets and bloody footprints, all later linked to Snelgrove through DNA or print analysis, were throughout the house. (V25, T 86-88, 119,
132, 136, 137, 140, 144, 149; V 26, T154-178; V27, T314, 319, 321-322; V29,
T627-629, 644) Cocaine was in Snelgrove’s blood drippings. (V33, T295-296)
Mrs. Fowler’s body, lying near an open closet door, appeared to have been
16 moved to allow access to the closet. (V25, T142) A blood smear on her ankle, apparently left when her body was moved, matched Snelgrove’s, and that was the only trace of Snelgrove’s blood on either victim. (V29, T629, 642) Mr. Fowler’s blood was on his wife’s body. (V29, T636-642) Although the closet and dresser drawers were rifled, items of value remained in plain view. (V25, T79, 129-130,
141; V26, T157, 164, 229, 239) The victims also still wore gold necklaces, three rings and a watch. (V30, T795, 833-834)
The medical examiner, Dr. Beaver, testified that Mrs. Fowler died of a stab wound to the heart. (V30, T800-801) While alive, she received multiple non-fatal blows to the head and face, but she had no injuries to the brain or skull. (V30,
T802) Mrs. Fowler did have cuts and bruises on her left arm, a severed radial artery that bled profusely, and a bruise on her left shoulder. (V30, T795-799)
Mr. Fowler received minor knife wounds to his abdomen and some superficial incisions about his body, but he died from blunt force trauma to the head that injured his brain. (V30, T817-822) The medical examiner opined, from the crushed hyoid bones of both victims, that the perpetrator had held the victims by the throat before delivering blows to the face, either, in the doctor’s opinion, to deliver more precise blows to the victims, or simply to be able to locate their heads in the dark. (V30, T810-811, 820-821, 842) Using autopsy photos, the state
17 attorney counted with the medical examiner fifteen injuries to Mr. Fowler and ten to
Mrs. Fowler. (V30, T827-828) With this type of trauma to the victims, the perpetrator would assuredly have gotten blood on his hands. (V30, T 842)18 The doctor believed that the victims were conscious only seconds to at most fifteen to twenty seconds after the fatal injuries were delivered, with death occurring within five to ten seconds thereafter. (V30, T836-839)
After police secured the murder scene on June 25, 2000, a dog-handler
(Roster) and his bloodhound arrived at about 2:45 p.m. (V25, T90-91) Roster put the dog’s nose to the broken window area and it “appear[ed] to [him] that the dog picked up a scent.” (V25, T92) The dog took Roster along a meandering route that led to the house of Alice Snelgrove (the defendant’s aunt), Jeff McCrae (the defendant’s cousin) and David Snelgrove. (V 25, T 92-96) Roster entered the
Snelgrove home after their family dog was secured in a bathroom, and the bloodhound was “put back on the scent.” (V 25, T 96-97) Upon entering the front door, Roster saw David Snelgrove exiting the back door and the bloodhound
18 While the victims’ blood should therefore have been dripping from the killer’s hands, none of the Fowlers’ blood or DNA was found mixed with the defendant’s blood stains which he had left (from his bleeding hand) on the Fowlers’ personal items and throughout their house, nor was it found on the defendant’s self-bloodied clothing items recovered from the Snelgrove and McRae (defendant’s aunt and cousin’s) house, nor on a knife containing the defendant’s blood found nearby their house. (V29, T627-642)
18 started toward Snelgrove as if to alert. However, Roster pulled him back and had the dog go through the house, where it showed a little interest in the washing machine in the garage and no interest in Mrs. Snelgrove, Jeff McRae, or another elderly man in the house. (V25, T97-98) The bloodhound was temporarily removed from the residence so the Snelgrove dog could be removed from the bathroom and
David Snelgrove had returned inside and was seated on the couch when Roster returned. (V25, T98-99) The bloodhound went into the bathroom where the
Snelgrove dog had been confined and showed interest in a trash can containing old bandages. (V25, T99) The dog then went to the living room couch and sat next to the defendant, who petted him. (V25, T100)19
A search of the Snelgrove house uncovered a bag with two bloody T-shirts in the attic, from which bag emanated the scent of ammonia. (V 6, T422-423) The shirts contained the DNA matching the defendant, and two pairs of blood-stained
19 Roster testified that it was his belief that Brandon the bloodhound had followed one continuous scent from the Fowlers’ to the Snelgrove house (the dog- handler opining that they made the detour down the street and back again due to the scent dispersing from a lot of vehicular traffic over the course of two days), and that even though Brandon was temporarily removed from the house, he continued on the same scent because he was still in his harness (and he would remain on the scent until such time as the harness was removed); and he further opined that Brandon, by sitting in front of the defendant to be petted, had alerted on him. (Vol. 25, T 92, 94-95, 98-99, 100-103) Brandon did not testify. See Matheson v. State, 28 Fla. L. Weekly D1791 (Fla. 2nd DCA August 1, 2003).
19 shorts also found in the Snelgrove house contained DNA matching the defendant and possibly Jeff McRae. (V28, T520; V29, T632, 634)20 The defendant was arrested and taken to the police station where he denied involvement in the killings.
(V26, T387-389) Snelgrove told police he had been with his cousin Jeff McRae at a friend’s house from 11:30 p.m. on June 24th until Jeff drove him home at about
1:00 a.m. Saturday morning, June 25th. (V26, T387-389, 396-398) He admitted being inside the Fowler home several months earlier at their request to move furniture. (V26, T404) During this interview, the police observed cuts to the defendant’s finger and palm, which he claimed to have gotten at a landscaping job the previous week,21 and scratches on his knuckles, arm, shoulder, feet, and ankles.
(V26, T393, 416-422)
Mr. Reinholz, the neighbor, later told police that Snelgrove had knocked on his door the night of June 23, 2000, seeking to have a check cashed, but Reinholz declined to do so. (V25, T62-64) Reinholz did not see cuts or bandages on the defendant at that time. (V25, T64)
20 No DNA of the either victim was on the clothing. (V29, T631-632, 634- 635)
21 Snelgrove’s employer indicated that he did not know of or observe any injuries to Snelgrove during work that previous Monday, which had been the last day the defendant had worked. (V27, T287-299)
20 McRae, the defendant’s cousin, testified that he was at a friend’s house with
Snelgrove,22 and upon leaving the friend’s house they drove to Bunnell to purchase crack cocaine. (V28, T454-457) They returned home and smoked cigarettes outside before McRae retired. (V28, T457-459) McRae did not notice cuts or bleeding on Snelgrove’s right hand during this time. (V28, T457) McRae stated that he heard Snelgrove come inside the house some 45 minutes later with a cut on his right hand and blood on the bottom of his foot, and McRae observed the defendant washing his hands in the bathroom, Snelgrove telling him he had gotten into a fight. (V28, T463) McRae said that Snelgrove wanted to return to Bunnell to buy more cocaine, so McRae drove him there and they bought crack cocaine from
Cornelius Murphy with bloody money Snelgrove gave him. (V28, T464-469)
McRae testified that the next day (Saturday) Snelgrove accompanied him to several pawn shops where McRae pawned some video games and attempted to pawn an old fishing rod. (V28, T469) He stated that Snelgrove offered to try to pawn the fishing rod at another pawn shop, but that, after being in the shop for some time, Snelgrove came back with the fishing rod, putting something in his
22 McRae’s friend, Donald Silva, testified that on the eve of June 23, 2000, Snelgrove did not enter into the conversations he and McRae were having and seemed quite distracted and preoccupied with something, to the point that, when Silva specifically asked Snelgrove a question, twenty minutes passed before Snelgrove answered. (V27, T279-280)
21 pocket. (V28, T470-471) An employee of the shop testified that the defendant had pawned a herringbone necklace. (V29, T614-616) The victims’ son identified the necklace as his mother’s. (V 29, T 648-649)
An employee of a convenience store in Bunnell called police when Cornelius
Murphy, on the night of June 23, 2000, tried to exchanged bloody money in her store. (V29, T555-559) Subsequently, the police obtained a $20 bill from Murphy, and serology and DNA testing showed the presence of Snelgrove’s blood it. (V28,
T519; V29, T630) Snelgrove’s blood was also on a lock blade knife found in the woods near the Snelgrove residence. (V29, T629-630, 661, 671) The locking mechanism of the knife was broken, causing the medical examiner to deem it possible (by examining photographs of Snelgrove’s injuries) that the injuries to
Snelgrove’s right hand could have been caused by the blade closing as he stabbed a victim, but also entirely consistent with him being injured by the broken glass from the window entry. (V30, T765-766, 841)
Mathews, the former client of the public defender’s office, had fourteen or fifteen prior felony convictions and boasted to living a life of crime since age 14.
He testified that he was housed with Snelgrove following Snelgrove’s arrest. (V30,
T721-722, 741-742) According to Mathews, when placed in the cell, Snelgrove was pacing and muttering that something should not have happened as it did. (V30,
22 T758) Mathews claimed that, after a couple of days in jail, Snelgrove confided that he and his cousin, while high and needing money to get more drugs, planned to break into a neighbor’s house. With his cousin outside as a lookout, Snelgrove broke a window and, cutting himself in the process, entered the house and went to the bedroom where he was looking for money when he was startled by the male occupant. (V30, T723-725) Mathews “assumes” they “got to fighting” with
Snelgrove stabbing and beating the man, when the female awoke and he stabbed and beat her a few times. (V30, T725) Mathews claimed Snelgrove told him how he had attempted to remove a ring from the woman’s hand but did not want to cut her finger to get it. (V30, T725) According to Mathews, Snelgrove lamented that if, when he entered the bedroom, he had only looked the other way, he would have immediately seen a purse and would have taken it before the victims awoke. (V30,
T726) Snelgrove took money, getting blood on most of it, along with some other items which he did not identify, before leaving the house through the back door.
(V30, T728) Mathews recounted how Snelgrove had gone out the back door, indicating that this was the same way he had indicated he gained entry to the house.
(V30, T728, 755-758)
Mathews admitted contacting the state attorney’s office in hopes of a deal if he testified against Snelgrove. (V30, T733-735) He denied having any deal and
23 denied exposure to more serious crimes (and denied that his former assistant public defender discussed the possibility of life felonies being charged). Mathews disputed records in his court file stating that Mathews had, in fact, threatened to kill his burglary victim in order to obtain property, and yet was permitted to plead guilty to simple burglary and petit theft. (V30, T734-735, 743-745) Contrary to the court records, Mathews denied pleading guilty to assaulting his victim. (V30, T745-
748) Mathews, smiling during this portion of his testimony,23 admitted seeing accounts of the case in the papers and on television. (V30, T750)
Evidence revealed that David Snelgrove had organic brain damage and mental disturbances. Snelgrove’s mother continued to drink and party when pregnant , causing potentially damaging prenatal alcohol exposure, particularly to the central nervous system of the developing fetus. (V33, T360-362) Snelgrove’s mother would give her infant son tranquilizers to make him sleep so she could leave the house to go partying. (V33, T310) He was often, during this time, left in the care of his mentally disturbed cousin. (V33, T310; V25, T528) While a young child, Snelgrove accidentally ingested this relative’s Haldol and was rushed to the hospital after he quit breathing. This event could have caused his biological brain
23 Asked about smiling and if there was something funny about the proceedings, Mathews prattled about defense counsel harassing him and how, now that he had calmed down, he felt better which caused him to smile. (V30, T750)
24 damage. (V33, T360, 363-366; V35, T528-529)
Snelgrove’s parents divorced when he was six and he bounced between his mom and dad, eventually ending up with his mother, to whom he became quite close and also unusually dependent upon her for structure and emotional sustenance. (V33, T308, 310-311, 377-378, 381; V35, T529, 538, 544-545)
Snelgrove has a low I.Q. and was a slow learner. Enrolled in special education classes, he dropped out of school before completing the tenth grade. (V34, T402-
403) Because of a learning disability, Snelgrove was only able to do the most menial of jobs, but he had a history of gainful employment and was a dedicated and hard worker. (V33, T312; V35, T 530, 533-534)
Family members spoke of the loving, caring and understanding person they knew in David Snelgrove. (V33, T299; V35, T533-537, 540) He babysat his preteen niece, helped her with homework, and counseled her to avoid drugs, (V33,
T302-303; V35, T538) He was a non-violent person and intervened when his niece argued with her grandmother. (V33, T 305, 312) Snelgrove also helped his aunt care for her invalid brother, helping him in his wheelchair and even helping him shower. (V33, T313)
Snelgrove, who had a long history of crack cocaine addiction, attempted, at his mom’s urgings, to break free of the addiction, but always failed when trying on
25 his own. (V34 , T414-417, 432-433; V35, T539, 544-545 ) Snelgrove was devastated when his mother died suddenly and unexpectedly in late 1998 and his father died one month later. He became despondent and spiraled downward into daily crack cocaine addiction, suffering intensely from the loss of the emotional support and structure his mother had provided. (V33, T308-309, 375-376, 378;
V35, T544-546)24
Psychological testing and a PET-scan (which assesses brain function), showed to a reasonable degree of medical certainty significant brain damage to the temporal lobes and subcortical areas of Snelgrove’s brain. (V33, T254-259)25
Symptomatic of a biological disturbance to the brain is delusional, paranoid thinking, which was considerably indicated by the MMPI testing. (V33, T345)
David showed indications (again well above the cutoff) of mood and perceptual disturbance, a thought disorder, a biological psychotic disturbance, and he suffered from elevated depression, also from the organic brain damage. (V33, T 345-346)
24 The mental abnormalities experienced by Snelgrove are of the type that he is able to perform quite well in a structured environment, such as had been provided for a while by his mom or such as incarceration; and, in fact, reports show him doing just that while incarcerated for these charges. (V33, T379-380; V 35, T572-573)
25 The testing done on Snelgrove would also have been reflective of his condition in June of 2000. (V33, T290)
26 In fact, Dr. Berland stated that Snelgrove’s scores on the psychological tests were
“clinically significant,” to show a biological mental illness, something confirmed by the PET-Scan test. (V33, T346)
The MMPI testing showed that this was not a newly-acquired psychotic symptom, nor was the defendant faking the results, but instead there was a long- standing, chronic disturbance, “a biological malfunction in his brain,” which also indicated the presence of hallucinations and biological mood disturbance.26 (V33, T
348) This malfunction was present, the testing shows, for at least two years or more prior to the administration of the test. (V33, T349)
Snelgrove’s IQ shown on the original Wechsler Adult Intelligence Scale
(WAIS) was 78, which could be extrapolated based on scientific data to produce a result on the current version of the test, the WAIS-III, of between 68 and 70, below the retardation level. (V33, T355-357)27 In fact, his lowest subtest score, if it had been across the board, would have produced the equivalent of an IQ level of 58, a level at which a person is usually “institutionalized because they are unable to care
26 In fact, if anything, the test results showed that David was trying to minimize or hide the nature of his mental problems. (V33, T349)
27 Dr. Berland administered the original WAIS test, rather than the current WAIS-III, on David Snelgrove because the original is considered a more accurate, conservative screening measure for brain injury, his main objective at the time in performing the test. (V 3, T355, 357)
27 for themselves in the community.” (V33, T357-358) These test results show significantly that certain portions of Snelgrove’s brain were not functioning properly. (V33, T359)28 Snelgrove’s brain abnormalities significantly diminished his control over his behavior and “contributed to the situation in which he appears to have become out of control or violent.” (V34, T399-400)
Damages to these areas of the brain alone can cause significant loss of emotional and impulse control and are involved with the regulation of aggression and the ability to integrate cognition and movement, making Snelgrove much more vulnerable. (V33, T258-259) But when coupled with a long-standing crack cocaine addiction, which has a profound impact on the frontal lobe as well, the impairment is amplified, causing severe mental disturbance and substantial impairment to
Snelgrove’s ability to control his actions, especially if startled. (V33, T240, 260-
261; V35, T606) If a person, like David Snelgrove, was normally able to control his brain damage based on the area of brain that is functioning properly, but then another area became impaired by the ingestion of cocaine, this would significantly
28 Dr. Berland totally discounted the prosecutor’s non-expert theories that any evidence of planning the crimes would negate the doctor’s diagnosis about Snelgrove’s mental and biological malfunctioning, stating just the opposite, that psychotic people can still negotiate the mechanics of a plan, but their reasoning and deciding it was a workable plan or whether they should do it at all was what was adversely affected by their mental illness. (V34, T398)
28 explain the aggressive behavior exhibited in this one instance. (V33, T293)29 This especially would be the case since cocaine ingestion affects the structure of the brain responsible for survival instinct, and caused impulsive, violent behavior.
(V35, T606)
Snelgrove’s previous brushes with the law were solely related to his drug addiction, and included charges leveled by his father in an attempt to straighten out
David. (V34, T401, 414, 426; V36, T4-5) When he was placed on community control for tampering with evidence (for swallowing a piece of crack cocaine when confronted by a police officer), David relocated away from the drug influences he had in Orlando and moved in with his aunt and cousin in Flagler County. (V35,
T535-537)30 The defendant willingly enrolled in and participated in an out-patient drug treatment program, but with little success. (V34, T414-415, 417, 425, 432-
433) After discussions with his mental health and substance abuse counselor and his community control officer, Snelgrove, showing insight into his problem and wanting to be free from the shackles of crack addiction, affirmatively sought
29 Snelgrove, it was undisputed, had absolutely no history of aggressive or violent behavior. (V 33, T 303, 312, 314, 380; V 34, T 401, 416, 419; V 35, T 530, 535-536, 547, 604)
30 David’s sister, Ann Thomas, recalled an incident in Orlando wherein David was chased and stabbed by “the crack man.” (V 35, T 536)
29 placement into a residential drug treatment program, and he enrolled in the Salvation
Army residential program in March 2000. (V34,T410,415;V25,T579)
With the help of the drug program, David was able to control his urges and, as shown by drug testing, was able to stay drug free for over three months, a highly significant feat, according to expert witnesses. (V34, T417-418; V35, T 580-581)
For the first time in recent memory, Snelgrove had high hopes for success in beating the bonds of drug addiction and making something of his life. (V35, T585,
589) But, David and a female co-resident became attracted to each other, and, in violation of the program’s regulations on fraternization, kissed and fondled each other after attending church. (V35, T582-584) Realizing their error, the two discussed their relationship and agreed to terminate it, since it was not worth pursuing and had to be avoided so that they could receive the help they needed to lick their drug habits. (V35, T587-588) When their indiscretion was discovered, the two patients were disciplined by demoting them to Level One for an additional two weeks, with greater restrictions. (V35, T583-584)
Despite his learning disability, Snelgrove struggled to compose a letter to the drug program administrators, admitting his transgression and accepting his punishment, another great step in his recovery process, according to the experts, and begging for the center’s continued help. (V35, T585, 587-589) Inexplicably,
30 two weeks later when the restrictions were to be lifted, in an apparent general crackdown on all of the residents, David and his co-resident’s punishments were increased and David was expelled from the residential drug treatment, put out on the street without his belongings, without any transition back into the real world, and without any means of getting home. (V35, T584, 581)
Snelgrove, desperately wanting to remain drug free, immediately telephoned his AA sponsor seeking his help in keeping off of drugs now that he was on his own. (V35, T590-591)31 The AA sponsor declined or was unable to assist David and he was left with only his cousin, Jeff McRae (a crack user), for a ride home.
(V35, T590-591) Immediately upon picking up David, McRae purchased some beers and told Snelgrove that he was going to purchase some crack cocaine. (V35,
T591) David pleaded with Jeff not to, saying he wanted to remain off of drugs, and
David successfully resisted his cousin’s temptation, another huge attainment in his hopes at drug recovery. (V35, T591)
Upon his ouster from the drug program at the beginning of June 2000, David, who had tasted freedom from the drugs, felt utterly lost and fell into total despair, believing all was lost and there was no place else to turn for help. (V35, T 590)
31 According to an expert witness, this was absolutely the right thing for David to attempt, showing that he had learned from the drug program and, now that that lifeline had been severed, he was still trying to keep clean. (V35, T590)
31 Relatives spoke of this change in him, still noticing the caring and loving person, but also noticing an emptiness, an angst. (V33, T303-304, 315) Despite having to rely solely on his own self-control and being back in the drug environment with his cousin, Snelgrove obtained employment and managed to refrain from drug usage for over a week.32 But upon getting his first paycheck cashed on June 9,2000, and while on his way to the Salvation Army to retrieve his belongings that they held in hock, his brain triggered an irresistible craving once again for crack, to which he tragically succumbed. (V35, T590, 592-593, 600, 603) However, trying to be somewhat less irresponsible, Snelgrove purchased only a tiny quantity of the drug, but once experiencing the highly addictive drug again (which was even more intense due to his three-month abstinence), he was again hooked. (V35, T592-593)
It was then, under the effects of crack cocaine’s irresistible craving state, coupled with his brain damage and mental abnormalities, that David found himself in the next two weeks leading up to the crimes:
Q: Are you aware of the effect of abstinence from cocaine on the, on the later use of cocaine? Mr. Edwards: Yes. Q: And what is that? A: Because the -- because cocaine is very short acting, the high on crack will only last a matter of minutes. And for, for people who use crack cocaine, who are addicted to crack cocaine, they really
32 Also quite an achievement, according to the expert. (V35, T591, 600)
32 truthfully never really get high anymore. What they get is less pain and angst in their life. And so when they get high, they get a little relief from the angst and, and depressed feelings that they have. But then when that high is over, they get very depressed feelings and feelings of anxiety and agitation, and they're at that point wanting relief from those feelings. And, and, and when you're, when you're an addict, their relief comes by getting more cocaine. So that's called the craving state where the, the addict says, I got to feel better and I want to feel better soon. And when they're in that craving state, the -- all the literature and all the antidotal data says they, they do things they normally wouldn't do, from criminal activity to their sexual activity to all kinds of activity that they later regret and are remorseful.
(V35, T571-572) Snelgrove was under the strong, dangerous, powerfully motivating, craving influence of crack cocaine on June 24, 2000. (V35, T569, 572,
606)
SUMMARY OF ARGUMENTS
I. An actual conflict of interest existed where the State sought out the defendant’s fellow inmates, also represented by the public defender’s office, regarding overheard statements relevant to the case. The court was required to allow the public defender’s office to withdraw where the interests of the clients were adverse and where representation of one client was being effected by prior representation of other clients who were potentially major state witnesses.
II. The State misrepresented facts and failed to disclose a letter written by its key witness seeking a deal in his case if he testified against the defendant.
33 Reversible error occurred where the State knowingly allowed the witness to testify falsely about his deal with the State and where the trial judge failed to conduct any
Richardson inquiry whatsoever concerning the clear discovery violation.
III. The prosecutor engaged in misconduct by inflammatory, improper, and irrelevant remarks in front of the jury.
IV. The trial court abused its discretion in unreasonably denying a recess after defense counsel informed the court that he was physically, mentally and emotionally exhausted and, as a result, was unable to continue to provide effective assistance of counsel without an overnight recess.
V. A separate jury recommendation of life or death is required for each first degree murder charge. A new penalty phase is mandatory.
VI. Florida’s capital sentencing scheme and penalty phase jury instructions unconstitutionally shift the burden of proof to the defendant.
VII. The trial court erred in imposing the death sentence.
VIII. Victim impact evidence is unconstitutionally admitted in Florida’s capital sentencing scheme.
IX. Florida’s death penalty procedure violates the Sixth and Fourteenth
Amendments under Ring v. Arizona.
34 ARGUMENT
POINT I
THE TRIAL COURT ERRED IN DENYING COUNSEL’S MOTION TO WITHDRAW BASED ON CONFLICT OF INTERESTS, DEPRIVING THE DEFENDANT OF HIS FLORIDA AND FEDERAL CONSTITUTIONAL RIGHTS TO COUNSEL, DUE PROCESS, EQUAL PROTECTION, AND A FAIR TRIAL.
Just before Snelgrove’s capital trial, the State Attorney’s Office directed law enforcement to conduct a full investigation into whether Snelgrove made any statements during his pre-trial incarceration. (SR 71) Investigators traveled to various prisons, questioning prisoners, including public defender clients, who had been housed with Snelgrove at the Flagler County Jail about statements made by
Snelgrove, including specific questions about defense tactics. (V 18, T 5; SR 71)
Mathews, whom the state attorney had previously assured defense counsel had not been represented by the public defender’s office (V 36, T 46-52), was, in fact, represented by the public defender’s office at the time Snelgrove allegedly made statements to Mathews. (V 7, R1296-1303, 1307-1309, 1312-1314) Defense counsel’s motion explains the actual conflict present here:
The belated investigation by the State as to whether David Snelgrove made any statements while incarcerated at FCIDF [Flagler County Inmate Detention Facility] has squarely put the Public Defenders Office in the position of deposing and investigating clients it was representing on serious felony charges during that time frame. The
35 deposition must aggressively pursue all areas of inconsistency, inaccuracy and motive to testify. This Office will then have to zealously cross-examine the former clients if they do testify and discredit the credibility of the witness. Clearly, any benefit that the clients/former clients could obtain from providing such testimony places this office in the position of representing one client at the cost of another.[33] This Office ethically could not and would never initiate an inquiry into the possibility/occurrence of statements between clients it is representing. That has now been done by the State Attorney’s Office. The potential testimony of former clients requires a full investigation into the circum-stances of their statements, depositions of former clients involving the time frame when they were represented by this Office, and further complete investigation into their background. This Office is ethically compelled to move to withdraw from representation of Snelgrove.
(SR 72) Counsel asserted to the court that ethical constraints prohibited him from thoroughly investigating, deposing, and cross-examining other clients about an event that occurred during the time frame they were represented by his office,34 and, “thus placed [counsel] in the position of having information from a confidential source that cannot ethically be used, but which morally should be used.
33 In fact, at the time the public defender was representing Mathews, Mathews was actively seeking a deal with the State in exchange for his testimony (a deal Mathews on which felt he cheated because he received only 34 months, even though he potentially could have been charged with and been sentenced to life felonies). (V 30, T 697, 709-713, 743-750)
34 Some of whom may have been able to provide testimony favorable to Snelgrove, but whom defense counsel was ethically bound not to interview and investigate due to the current or former representation of these clients, which could disadvantage them, as outlined in detail by defense counsel, and adopted here. (V 18, T 4-8, 25-33; SR 74)
36 This is the type of actual conflict that is affecting the representation of David
Snelgrove by the undersigned counsel.” (SR 74)
An issue of a conflict of interests is a mixed question of law and fact, hence de novo review of the legal issue is appropriate. See Cuyler v. Sullivan, 446 U.S.
335, 341 (1980). Implicit in the Sixth Amendment right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686
(1984). A criminal defendant’s Sixth Amendment right to the effective assistance of counsel encompasses the right to counsel free of ethical conflicts. Wood v.
Georgia, 450 U.S. 261 (1981); Holloway v. Arkansas, 435 U.S. 475 (1978);
Ortiz v. State, 844 So.2d 824, 825-826 (Fla. 5th DCA 2003); Bellows v. State, 508
So.2d 1330, 1331 (Fla. 2d DCA 1987).35
An actual conflict of interest can impair the performance of a lawyer. Cuyler v. Sullivan, 446 U.S. 335, 345 (1980); see also Holloway v. Arkansas, 435 U.S. at
481. When defense counsel makes a pretrial disclosure of a possible conflict of interest with the defendant, the trial court must either conduct an inquiry to determine whether the asserted conflict of interest will impair the defendant's right
35 The public defender’s office is the functional equivalent of a law firm. Different attorneys in the same public defender’s office cannot represent defendants with conflicting interests. Babb v. Edwards, 412 So.2d 859 (Fla. 1982).
37 to the effective assistance of counsel or appoint separate counsel. Holloway, 435
U.S. at 484; Thomas v. State, 785 So.2d 626 (Fla. 2nd DCA 2001); Lee v. State,
690 So.2d 664 (Fla. 1st DCA 1997). See also, §27.53 (3), Fla. Stat.
“To deny a motion for separate representation, where a risk of conflicting interest exists, is reversible error.” Bellows, supra at 1331; Ortiz, supra at 825-826
(emphasis added). In Lee, Thomas, and Ortiz, the district courts found without question that “there can be no doubt that [defense counsel] and the defendant had an actual conflict of interest” where the public defender’s office had previously represented a key prosecution witness. In Ortiz, the public defender represented the confidential informant in an unrelated case. In both Lee and Thomas, as in the instant case, the public defender had previously represented the witnesses in unrelated cases at the time the defendants allegedly made statements to those witnesses. In all three cases, the courts ruled unanimously that “it cannot be said that the apparent conflict created when defense counsel represented both [the defendant] and the state’s key witness is not so prejudicial to [the defendant] so as to have denied him his right to effective assistance of counsel,” even though the representation was in unrelated cases, Ortiz at 826; Lee at 667-669; Thomas.
Here, the public defender’s office actually represented Mathews, the key state witness, at the time Snelgrove allegedly told him details of the crime. Here,
38 Mathews, at the time he was represented by his public defender, discussed testifying against Snelgrove and initiated contact with the state attorney regarding a deal in exchange for his testimony. An actual conflict of interests existed; “to deny a motion for separate representation, where a risk of conflicting interest exists, is reversible error.” Ortiz, at 825-826. There existed at least “a risk” of conflicting interests, especially as detailed by defense counsel (V18, T4-8, 25-31), who certainly felt constrained by the conflict and his divided ethical loyalties.
The assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v.
California, 386 U.S. 18, 23 & n. 8 (1967); Lee at 668. This principle applies to cases in which the alleged deprivation of counsel is the result of a conflict of interests between a lawyer and client. See, e.g., Holloway v. Arkansas, 435 U.S. at
489-91; Glasser v. U.S., 315 U.S. 60, 75-76 (1942). It is not necessary for a reviewing court to determine the degree of prejudice resulting from an actual conflict of interest because the conflict itself demonstrates a denial of the right to counsel; all that the defendant is required to show is a potential conflict of interests.
Glasser, 315 U.S. at 75-76. Lee, supra, explains that appellate courts have declined to apply the harmless error rule to case in which a defendant was deprived of the right to conflict-free counsel because “any action the lawyer refrained from taking
39 because of the conflict would not be apparent from the record.” Quoting from
Holloway v. Arkansas, the Lee court explained, at 668:
[A] rule requiring a defendant to show that a conflict of interests – which he and his counsel tried to avoid by timely objections to the joint representation – prejudiced him in some specific fashion would not be susceptible of intelligent, even-handed application. In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. But in a case of joint representation of conflicting interests the evil – it bears repeating – is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. Holloway, 435 U.S. at 490 (citations omitted) (emphasis in original).36
36 The above-cited cases deal with the standard to be applied to a conflict issue raised in the trial court and presented on direct appeal, as opposed to one raised for the first time in a post-conviction motion where trial counsel did not attempt to withdraw. A different rule would apply if the ineffective assistance of counsel due to a conflict of interests was first asserted in a post-conviction proceeding (as was the case in Hunter v. State, 817 So.2d 786 (Fla. 2002), relied on by the state and trial court below, wherein the defendant must prove the two- prong test for ineffective assistance of counsel as required by Cuyler v. Sullivan, and Washington v. Strickland). If asserted in a post-conviction motion, the defendant must affirmatively show that the conflict impaired the performance of the defense lawyer, and even then, it would not be necessary to show that counsel’s deficient performance resulting from the conflict affected the outcome of the trial, since prejudice is presumed. Lee v. State, supra at 669, citing Cuyler v. Sullivan, 446 U.S. at 348, 349. But these post-conviction ineffective assistance stricter standards and a showing of prejudice is not required in a case, such as the instant one, where trial counsel’s motion to withdraw based on conflict is denied and the issue is presented by direct appeal. Lee v. State, supra.
40 Snelgrove was thus denied his right to counsel, where he was forced to go on trial for his life with an attorney who felt constrained by an ethical and actual conflict of interests and could not provide adequate representation due to his divided loyalties.37 Also, Snelgrove’s rights to a fair trial, due process of law, and equal protection are compromised by his court-appointed attorney’s conflict and the resultant death sentences are rendered cruel and unusual punishment. A new trial with conflict-free counsel is required.
POINT II
THE TRIAL COURT ERRED IN FAILING TO CONDUCT A RICHARDSON INQUIRY WHERE THE STATE FAILED TO DISCLOSE TO THE DEFENSE A LETTER WRITTEN BY A STATE’S WITNESS AND WHERE THE STATE ALLOWED FALSE TESTIMONY TO BE PRESENTED BY ITS WITNESS.
As seen from the previous issue, a large center of controversy was the testimony of Gary Mathews, the only evidence indicating that Snelgrove was the actual killer. Mathews had been one of Snelgrove’s cellmates (the only one the state called as a witness),38 and was himself in jail for crimes which could have been
37 See also Amendments to Rules Regulating the Florida Bar, 820 So.2d 210, 214 (Fla. 2002)(Pariente and Quince, JJ. concurring) (“We have substantial concerns as to the ethics of defense counsel’s attacks on his former client.”)
38 Other cellmates (also represented by the public defender’s office and hence, because of that conflict of interests not called or even interviewed by the
41 charged as life felonies and for which he was facing habitualization (having been committing serious crimes, he boasted, since he was 14 years old). Instead, he claimed on the witness stand that he received “no deal” from his offer to help the stat and received a whopping 34-month sentence.
During hearings on the conflict issue, the state had produced one letter written by Mathews received by the state on July 20, 2000, after the public defender withdrew from Mathews’ case, seeking a deal in exchange for his testimony about what Snelgrove, being held for a double murder, had allegedly told him. (V 30, T
685-686) During trial, Mathews testified that Snelgrove did not open up for the first couple of days Snelgrove had been in the cell, and it was several days before he had any details of Snelgrove’s case and wrote to the state attorney’s office about his “information.” (V 30, 739-740)
The prosecutor assured the trial court at the hearing that this July 20th correspondence, and Mathews’ initial contacting of the state attorney’s office, was well after Mathews’ had substitute counsel. (V 30, T 685-686) However, during the Spencer hearing, at which the defense renewed his conflict motion, the state produced another missive from Mathews, this one dated June 28, 2000, well before
defense) told the state that Snelgrove was very “closed-mouth” about his charges and was very quiet, kept to himself, and did not talk much. (V. 18, T 29-32)
42 the state’s previously disclosed “first contact” letter from Mathews, and only a day and a half after Snelgrove had been arrested. In this letter, Mathews informs the state that he had written his attorney, an assistant public defender, the day before
(June 27th), hoping to receive a deal in exchange for his information about
Snelgrove. Defense counsel was shocked at this first disclosure of this letter that the state had in its possession, a letter which not only conflicted with the state attorney’s personal assurances that Mathews had private counsel before contacting them, but also directly conflicted with Mathews’ trial testimony (that it took days for Snelgrove to give him any information) by stating that he had complete detailed information about the crimes from Snelgrove only one day after Snelgrove was arrested. (SR 82)
Defense counsel immediately informed the trial court about the discovery violation, and, noting its conflict with Mathews’ trial testimony, insisted that the conflicting letter would have provided the necessary impeachment previously lacking at trial to totally destroy this key witness’s credibility. The trial court failed to hold a Richardson inquiry and did not inquire further into the state’s failure.
Snelgrove’s constitutional rights were violated. Amend. V, VI, VIII, XIV, U.S.
Const.; Art. I, §§ 9, 16, 17, 22, Fla. Const. A new trial is required.
A. Discovery Violation and Failure to Hold Richardson Hearing
43 Fla.R.Crim.P. 3.220(b)(1)(B) requires the state to disclose to a criminal defendant the statement of any witness, and Rule 3.220(j) imposes a continuing duty of disclosure. Here, it cannot be materially disputed that the state failed to disclose a statement from its key witness, fellow inmate Mathews, a statement which they had in their possession since the very beginning of the case against Mr.
Snelgrove. That statement materially contradicted Mathews’ story of how and when he came to gain the confidence of the defendant and was able to pry from
Snelgrove the alleged admissions in hopes of gaining leniency in his own case.39
When a trial court is made aware of a possible discovery violation by the state within the course of the proceedings, the court has discretion to determine if such violation will prejudice the defendant at trial. Richardson v. State, 246 So.2d
771, 775 (Fla.1971). However, the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Id.; Hernandez v. State, 851 So.2d 892, 894 (Fla. 3rd DCA 2003).
Pursuant to Richardson, supra at 774-75, the trial court was required to determine whether the State's discovery violation was (1) inadvertent or willful, (2) trivial or substantial, and (3) prejudicial to Snelgrove’s trial preparation. See also Luis v.
39 and which statement also would have had a bearing on the trial court’s denial of the public defender’s motion to withdraw because of a conflict.
44 State, 851 So.2d 773 (Fla. 2nd DCA 2003); State v. Cruz, 851 So.2d 249 (Fla. 3rd
DCA 2003). The trial court failed to hold a Richardson hearing, stating that “that issue is for “down the road” and for “another day.” (V 36, T 51-52) Yet it was the trial court’s affirmative duty to conduct this Richardson inquiry. Cruz, supra;
C.D.B. v. State, 662 So.2d 738, 741 (Fla. 1st DCA 1995) (once put on notice of a discovery violation, the “trial court has an affirmative obligation to conduct a hearing [even] without the defendant specifically requesting one.”)
In State v. Schopp, 653 So.2d 1016, 1020 (Fla. 1995), this Court discussed the importance of the hearing and of evaluating procedural prejudice resulting from violations of the Richardson rule: In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defendant. See also Joubert v. State, 847 So.2d 1056 (Fla. 3rd DCA 2003). The standard for deeming the violation harmless is “extraordinarily high.” Cox v. State, 819 So.2d 705, 712 (Fla.
2002).
This hearing looks to procedural prejudice to determine whether a violation was harmful. Wilcox v. State, 367 So.2d 1020, 1023 (Fla. 1979). The question of
“prejudice” in a discovery context is not dependent upon the potential impact of the undisclosed evidence on the fact finder but rather its impact on the defendant’s
45 ability to prepare for trial. Wilcox, supra.
As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefitted the defendant. In making this determination every conceivable course of action must be considered.
Joubert, supra at 1058. A defendant is presumed to be procedurally prejudiced if that reasonable possibility exists. Cox., supra at 712; Suda v. State, 838 So.2d
665, 666 (Fla. 1st DCA 2003). A Richardson inquiry would have made it even clearer.
A reversal is required, as here, “where the record will not support a finding that the unsanctioned discovery violation could not have materially hindered the defense.” Schopp, supra at 1020. As Schopp recognized, in this context it is the state’s burden to establish that the error is harmless. See also, State v. DiGuilio,
491 So.2d 1129, 1138 (Fla. 1986). The state cannot make that required showing here, especially in the absence of the required Richardson hearing, since no inquiry was undertaken into any of the surrounding circumstances of the discovery violation (inadvertent vs. willful, trivial or substantial, and effect on defense to prepare). An adequate inquiry at the trial level would have made it clearer for the reviewing court; instead we are left to speculate as to the willfulness of this
46 withholding of evidence and its impact. See Hernandez, supra at 894. The state has not met its burden and cannot here, thus “the error must be considered harmful,” Schopp, supra at 1020, and a new trial ordered.
Additionally, the suppressed evidence could be considered Brady material.
The State is required to disclose to the defense evidence in its possession or control that is favorable to the accused or that tends to negate the guilt of the accused. See United States v. Bagley, 473 U.S. 667 (1985); Brady v. Maryland,
373 U.S. 83 (1963). A defendant must prove three elements to establish a Brady claim: “[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence has been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Way v. State, 760 So.2d
903, 910 (Fla.2000). In assessing the prejudice element of a Brady claim, a court should determine whether the favorable evidence could
“reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Strickler, 527 U.S. at 290; see also State v. Knight, 853
So.2d 380 (Fla. 2003); Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000).
Further, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he
47 received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Strickler, 527 U.S. at 289-90.
Whether evidence was favorable to the accused (either exculpatory or impeaching), and whether the state suppressed the evidence are both questions of fact which could be resolved by an evidentiary hearing. Way, supra at 178. Since the trial court did not hold a hearing on the discovery violation, these facts must be accepted as true for the purpose of appellate review. Allen v. State, 28 Fla. L.
Weekly S604 (Fla. July 10, 2003); Freeman v. State, 761 So.2d 1055, 1061 (Fla.
2000). Whether evidence is “material for Brady purposes is a mixed question of law and fact subject to independent review. Allen, supra; Way, supra. To make this determination, the suppressed evidence must be viewed in context with the other evidence that was presented at trial.
As discussed above with regard to the Richardson claim, this suppressed letter could have been the final portion of the hangman’s noose around Mathews’ believability into his story of how and when he came to gain Snelgrove’s confidence and elicited alleged details of the killings. The focus for determining whether the information possessed by the state must be disclosed under Brady is broader than whether the evidence is in the strictest sense exculpatory; rather Brady used the phrase “favorable evidence.” See State v. Gillespie, 227 So.2d 550, 554,
48 556 (Fla. 2d DCA 1969). “Favorable evidence” can be considered as “that evidence which a reasonably skilled prosecutor should know could be fairly and probably used to advantage by the accused on the issues of guilt or punishment.”
Id. Here, it is clear from the defense counsel’s assertions that this suppressed letter was the missing piece of impeachment to totally discredit the state’s jailhouse snitch, see Cipollina v. State, 501 So.2d 2, 5 (Fla. 2d DCA 1986). The suppression of facts capable of assisting the defense in establishing his lack of guilt or culpability is, as the Gillespie court noted, “highly reprehensible.” Gillespie, supra at 555, n.14. A new trial is required, confidence in the verdict is undermined.
Strickler, Knight, supra.
B. Misconduct of the prosecution in presenting false or misleading testimony, knowing it was misleading or false.
Not only did the prosecutor’s office fail to disclose this earlier letter written by its jailhouse snitch, the state knowingly presented or allowed false or misleading testimony from its key witness. The state attorney, who was in possession of this letter, was aware, due to its contents, that the witness was fabricating his story before the court and the jury as to the circumstances and timing of the defendant’s
“confiding” in him about the details of the crime. Mathews wrote his letter to the state seeking a deal prior to the time he testified in court that he had obtained the
49 defendant’s confidence – only the state knew, at the time of this testimony, that it was false. Now, from the belated disclosure of Mathews’ letter, we all know.
Failure of a prosecutor to correct material false statements of a witness and use of that false evidence violates due process and denies a fair trial. Giglio v.
United States, 405 U.S. 150 (1972); United States v. Bagley, 473 U.S. 667 (1985);
Craig v. State, 685 So.2d 1224, 1226 -1227 (Fla. 1996). See Cooper v. State, 28
Fla. L. Weekly S497 (Fla. June 26, 2003); Guzman v. State, 28 Fla. L. Weekly
S829 (Fla. Nov. 20, 2003). If a witness conceals his status and/or the extent of bias by misleading or false testimony, the prosecutor has a duty to correct that testimony rather than use it to the state’s advantage. Giglio; Bagley; United States v. Meros, 866 F.2d 1304, 1309 (11th Cir. 1989); Craig.
Richardson and Brady violations occurred with Mathews’ testimony. It is clear that the presentation of this false evidence to the jury was material. The suppression of the true information was prejudicial. There is a reasonable possibility that the false evidence affected the judgment of the jury Giglio, 405 U.S. at 154. The failure of the prosecutor to “fully inform” the jury of the facts concerning a testifying witness’s status and possible bias misleads the jury as to the facts bearing on the credibility of the witness and denies due process. Armstrong v.
State, 399 So.2d 953, 960 (Fla. 1981); Moore v. State, 623 So.2d 608, 609 (Fla.
50 4th DCA 1993). See also Gorham v. State, 597 So.2d 782, 784-785 (Fla. 1992). A new trial must be ordered.
51 POINT III
THE PROSECUTOR’S IMPROPER AND INFLAMMATORY REMARKS TAINTED THE JURY TRIAL AND RENDERED THE ENTIRE PROCEEDING FUNDAMENTALLY UNFAIR.
A prosecutor may not make statements calculated only to arouse passions and prejudice or to place irrelevant matters before the jury. Vierick v. United
States, 318 U.S. 236, 247 (1943). As stated long ago:
[W]hile [the prosecuting attorney] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935).
This admonition applies with particular force in a capital sentencing proceeding: “Because of the surpassing importance of the jury’s penalty determination, a prosecutor has a heightened duty to refrain from conduct designed to inflame the sentencing jury’s passions and prejudices.” Lesko v. Lehman, 925
F.2d 1527, 1541 (3d Cir.); Hall v. Wainwright, 733 F.2d 766 (11th Cir. 1984) (“it is of critical importance that a prosecutor not play on the passions of a jury with a person’s life at stake.”) As this Court repeatedly has stated, closing argument
“must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the
52 logical analysis of the evidence in light of the applicable law.” Bertolotti v. State,
476 So. 2d 130, 133 (Fla. 1985); see Garron v. State, 528 So. 2d 353, 359 (Fla.
1988) (when “comments in closing argument are intended to and do inject elements of emotion and fear into the jury’s deliberations, a prosecutor has ventured far outside the scope of proper argument.”)
The standard of review in considering the denial of a motion for mistrial is abuse of discretion. Franklin v. State, 825 So.2d 487 (Fla. 5th DCA 2002). A motion for mistrial should be granted when necessary to ensure a fair trial. Id.
In the present case, the elected state attorney repeatedly engaged in improper and prejudicial remarks. Indeed, the prosecutor’s argument ran the gamut of misconduct from using an objection to coach a witness and using inflammatory rhetoric and mischaracterizing the evidence and the law, to improperly arguing lack of remorse, and distracting the jury from its task of impartially weighing the aggravators and mitigators.
As recounted in the statement of case, the elected State Attorney, coached his star witness during his speaking objection to proper defense questions, therein suggesting to the confused witness the “correct” answer. (V30, T755-756); he
“testified” to facts not in evidence (that the crime lab had not tested all of the blood scrapings from the knife – hence their blood may have been discovered on untested
53 scrapings [Vol 31, T964] and, again despite any evidence, offered his belief that the details given by Mathews had not appeared in the newspapers [V31; T976]); and the State Attorney improperly interrupted defense counsel’s final argument to the jury to inform them that he could “offer a scenario” to explain the deficiencies to which defense counsel was referring in his argument to the jury. (V31, T980 – the judge rebuking the prosecutor before the defense could even object) Further, over objection, the State Attorney told the jury that a letter written by the victims’ pre- teen granddaughter and read by her mother had been redacted of certain portions due to defense objections, leaving them free to speculate on what else had been contained in the granddaughter’s entreaty. (V32, T95-99)
A prosecutor is prohibited from commenting on matters unsupported by the evidence produced at trial. Huff v. State, 437 So. 2d 1087 (Fla. 1983); Garcia v.
State, 622 So. 2d 1325 (Fla. 1993) (while the state is free to argue to a jury any theory that is reasonably supported by evidence, it may not subvert the truth- seeking function of trial by obtaining a conviction or sentence based on obfuscation of relevant facts). See Garron v. State, 528 So. 2d 353 (Fla. 1988);
Thornton v. State, 852 So.2d 911 (Fla. 3rd DCA 2003) (references to matters not in evidence which intimated the prosecutors’ extra-trial knowledge of facts adverse to the defendant); Brooks v. Kemp, 762 F. 2d 1383 (11th Cir. 1985).
54 Mr. Tanner also, over defense objections, denigrated the defense by implying that the defendant was trying to transfer his blame to the victims because they had money and no burglar alarm, so “they invited themselves to be killed” (V31, T973-
974), and argued an alleged lack of remorse at the guilt phase of the trial with a totally fabricated story about the defendant going fishing after the killings. (V31,
T975) During the penalty phase, the State Attorney appealed to the juror’s emotions by asking them to picture the “terrifying night that left a cloud over the community and family.”40 The state attorney elicited a definition of the non- technical term, “psychobabble” from the defense expert and denigrated established mitigating evidence by referring in his closing argument to it as “psychobabble” and a test (PET-Scan) which only determines slow glucose intake – “so what” (V33,
T378, 384; Vol 35, T649), and impugned expert testimony and defense mitigation
40 The prosecutor emoted: “I'm not going to bring out the photographs of the family, talk about the loss to the family and community. I'm not going to do that. I'm not going to stand up here and cry or try to get you to cry [apparently referring to lead defense counsel who had wept during certain portions of the defense case in mitigation]. I don't want you to do that. “All that's left of Glyn and Vivian Fowler are sweet memories. Hmm. That's okay, I guess. That's the way of flesh. Hmm. World War II veteran, his young bride, coach, teacher, mom. There's something real wrong here, though. These precious and special little old people, and I don't mean that disrespectfully, were brutally murdered in their homes -- home. One single, bloody, terrifying night of terror left a cloud over this family and this community. That will never be erased, no matter what your verdict is.” (V35, T657-658)
55 during another “speaking objection” for “weaving this story of the terrible conditions this Defendant is suffering, but it’s just a story. There’s no evidence.”
(V33, T378) Further Tanner argued, over an objection of an improper statement of the law (the court merely “noted the objection”) that the defendant, by presenting mitigation regarding his severe drug addiction and mental deficiencies was trying to say that he should be excused for these murders. (V35, T655)
Prosecutorial comments and arguments such as these have been routinely condemned as appealing to the emotions of the juror and placing irrelevant considerations before them. Urbin v. State, 714 So.2d 411, 419 (Fla. 1998);
Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985) (inflaming minds and passions of jury so that verdict reflects an emotional response; asking jury to imagine terror of victim); Muhammad v. State, 782 So. 2d 343 (Fla. 2001) (backdrop of fear and anger and terror). A prosecutor’s disparaging remarks about the defense or defense witnesses is similarly condemned. Urbin v. State (calling defendant’s mother the “mistress of excuses” and then openly criticized her). In Garron v.
State, 528 So.2d 353, 357 (Fla. 1988), this Court found reversible error when a prosecutor discredited a valid defense.
In response to rebuttal of the insanity defense, the assistant state attorney made several comments during cross-examination of court appointed psychiatrists and during closing argument, which were
56 intended to discredit the insanity defense as a legal defense to the charge of murder. We believe that once the legislature has made the policy decision to accept insanity as a complete defense to a crime, it is not the responsibility of the prosecutor to place that issue before the jury in the form of repeated criticism of the defense in general. Whether that criticism is in the form of cross-examination, closing argument, or any other remark to the jury, it is reversible error to place the issue of the validity of the insanity defense before the trier of fact. To do so could only helplessly confuse the jury. The insanity defense is a policy question that has plagued courts, legislatures, and governments for decades. It is unnecessary to similarly plague juries.
Similarly, the State Attorney denigrated established powerful mitigating evidence as mere psychobabble, highly relevant and accurate neurological testing (PET-Scan) as merely a slow intake of glucose, and testimony based on specific evidence regarding the defendant’s troubled upbringing as a mere story. Additionally,
Tanner improperly confused the jury by likening the mitigating circumstances of extreme mental or emotional disturbance and severe addiction problems to “an excuse” for murder, which is obviously not the law. Urbine, at 419-420; Rhodes v.
State, 547 So. 2d 1201 (Fla. 1989); Garron v. State, 528 So. 2d 353 (Fla. 1988).
See also Cox v. State, 819 So. 2d 705 (Fla. 2002); Card v. State, 803 So. 2d 613
(Fla. 2001).
This Court has long recognized that the comments of the prosecutor can “so deeply implant seeds of prejudice or confusion” that reversal is required even in the absence of an objection. Pait v. State, 112 So. 2d 380 (Fla. 1959); see also Urbin
57 v. State; Garron v. State. Here, the prosecutor’s improper remarks were so egregious and pervasive that “neither rebuke nor retraction [would] destroy their influence.” Robinson v. State, 520 So. 2d 1, 7 (Fla. 1988); Pait, 112 So. 2d at
385. There can be little doubt the prosecutor’s argument prejudiced Snelgrove.
The prosecutor’s actions rendered the capital trial proceeding fundamentally unfair and denied Snelgrove due process of law. A new trial is required.
POINT IV.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT’S MOTION FOR A RECESS IN THE PENALTY PHASE PRIOR TO CLOSING ARGUMENTS, DEPRIVING SNELGROVE OF HIS RIGHT TO A FAIR TRIAL AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL, UNDER THE FEDERAL AND FLORIDA CONSTITUTIONS.
An order denying a continuance will be reversed upon a showing of an abuse of discretion. Sliney v. State, 699 So.2d 662 (Fla. 1997). Here, the denial of the defendant’s request for a recess between the jury charge conference and closing arguments due to counsel’s physical and emotional exhaustion at the end of a long trial and penalty phase was a “palpable abuse of discretion,” unduly prejudicing the defendant. Fennie v. State, 648 So.2d 95 (Fla. 1994).
Throughout the final two days of the penalty phase, lead defense counsel had indicated his total mental and physical exhaustion from the lengthy trial
58 proceedings, two-hour round trip drive time to this outlying county, and late-night and early morning preparation, witness coordination, and review of penalty phase jury instructions and objections, which, he personally believed, was adversely effecting his performance. (V34, T472-473, 514-515; V35, T613-617, 644, 658,
693-694) The trial court initially agreed that all were tired and indicated its plan to recess the trial for the weekend in order to give the party’s adequate time for rest and preparation. (V32, T133-135; V34, T472-473, 513-515; V35, T611-617)
However, the elected state attorney, wanting to conclude the penalty proceeding that day (coincidentally and conveniently, victim Glyn Fowler’s birthday), disparaged defense counsel and accused him of improper delaying tactics,
“hop[ing] that some juror may get, get hurt in an automobile accident, forget what they're here about, forget what the case is about, or do something and get them disqualified and delay.” The prosecutor urged the trial court to continue that day, providing counsel only a short “snack break” between the close of evidence, the jury charge conference, and his closing argument.
Although appellate courts typically defer to a trial court’s ruling on a motion for continuance, deference is not absolute. Smith v. State, 525 So.2d 477, 480 (Fla.
1st DCA 1988). It appears the common link in those cases in which a palpable abuse of discretion has been found is that defendant must be afforded an adequate
59 opportunity to investigate or prepare for presentation any applicable defense. Id. at
479; Beachum v. State, 547 So.2d 288 (Fla. 1st DCA 1989).
Here, the defense was forced to proceed with his plea for life without being prepared and in a state of exhaustion predictably leading to the ineffective assistance of counsel. As counsel explained following his botched closing argument, he had missed at least fifteen points on which he had intended to rely in convincing the jury to spare his client’s life.41 (V35, T692-694) Had counsel been given the overnight recess, these omissions would not have occurred. A strong likelihood of prejudice is present. See D.N. v. State, 2003 WL 22240184 (Fla. 4th
DCA Oct. 1, 2003). Other than the spurious argument of the elected State
Attorney about unethical defense delaying tactics, it is unclear from the record why the trial court changed its mind and would not grant the short overnight continuance prior to the closing arguments, jury instructions and jury deliberations. See D.N. supra. Regardless, the due process rights of the individual must triumph over these other considerations. A palpable abuse of discretion having been shown, reversal for a new penalty phase is necessary.
41 Counsel reminded the trial court that he had waived specific instructions on some of the statutory mitigating factors, intending to utilize the general “catch- all” mitigating instruction by reminding the jurors of the facts in support of such mitigation, but, due to his exhaustion, he “inexplicably” had failed to so argue those factors to the jury. (V8, R1501-1502; V35, T694)
60 POINT V
THE DEFENDANT’S TWO DEATH SENTENCES ARE CONSTITUTIONALLY INFIRM WHERE THE JURY ONLY RENDERED A SINGLE SENTENCING RECOMMENDATION FOR THE TWO SEPARATE MURDERS.
The jury returned a single 7-5 death recommendation for the two killings.
(V8, R1473; V35, T699-700) The two death sentences imposed after a single jury recommendation must be vacated due to violations of the right to a trial by jury, due process and §921.141, Fla. Stat. Amend. V, VI, VIII & XIV, U.S. Const.;
Art. §§ 9, 16, 17, Fla. Const. This presents a purely legal question and receives de novo review.
The matter is controlled by Pangborn v. State, 661 So.2d 1182 (Fla. 1997).
In Pangburn, 1188-1189, this Court squarely ruled that a separate jury recommendation must be rendered for each first-degree murder conviction, “to hold otherwise would undermine our sentencing procedure in capital cases by allowing arbitrary and irrational results.” Where there are two homicides and only a single jury recommendation, “[g]iven that the right to a jury in the penalty phase proceeding is such a substantial right, we conclude that a new penalty phase proceeding is required under these circumstances.” Id. See also Ring v. Arizona,
522 U.S.__, 122 S.Ct. 2428 (2002) Snelgroves’ two death sentences be vacated
61 and either reduced to life imprisonment or remanded for a new penalty phase trial.
POINT VI
PLACING A HIGHER BURDEN OF PERSUASION ON THE DEFENSE TO PROVE THAT LIFE IMPRISONMENT SHOULD BE IMPOSED THAN IS PLACED ON THE STATE TO PERSUADE THAT CAPITAL PUNISHMENT SHOULD BE IMPOSED VIOLATES FUNDAMENTAL FAIRNESS AND DENIES DUE PROCESS.
Whether Florida’s death penalty and standard jury instructions deny due process and fundamental fairness under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and Article I, §§ 2, 9, 16, 17 and 22 of the Florida Constitution is a pure question of law subject to de novo review.
Snelgrove moved to have §921.141, Fla. Stat., found unconstitutional because it cast on the defense a higher burden of persuasion to obtain a life sentence than was on the State initially to obtain a death sentence. (VI, R38-44, 45-
85). Timely and specific objections to the standard jury instructions on these grounds were overruled. (SR1F-53). The issue was thus preserved. Snelgrove was prejudiced because his jury recommended death after receiving the standard
“outweigh” jury instructions over objection and because the trial court applied the statutory mitigation outweigh the aggravation test to sentence Snelgrove to death.
At first blush, this issue appears to have been decided in Arango v. State,
62 411 So.2d 172, 174 (Fla. 1982), and its progeny under the generic heading of
“burden shifting.” Arango is not controlling for two reasons. It does not address the higher burden of persuasion on the defendant, and the superficial analysis in
Arango is otherwise incorrect. Specifically, the entire analysis of this issue in
Arango, at 174, states:
In Dixon we held that the aggravating circumstances of §921.141(6) were like elements of a capital felony in that the state must establish them. In the present case, the jury instruction, if given alone, may have conflicted with the principles of law enunciated in Mullaney and Dixon. A careful reading of the transcript, however, reveals that the burden of proof never shifted. The jury was first told that the state must establish the existence of one or more aggravating circumstances before the death penalty could be imposed. Then they were instructed that such a sentence could only be given if the state showed the aggravating circumstances outweighed the mitigating circumstances. These standard jury instructions taken as a whole show that no reversible error was committed. (emphasis added)[42]
The test set forth in §921.141, Fla.Stat. and the standard jury instructions, given here over unsuccessful objection (V8, R1468-1472), clearly and repeatedly state that the mitigation must outweigh the aggravation. Even taken as a whole, the standard jury instructions cannot reasonably be construed otherwise:
42 An instruction that the state prove the aggravation must outweigh the mitigation is not contained in the standard jury instructions, but it mirrors dicta from this Court. See Alvord v. State, 322 So.2d 533, 540 (Fla.1975)(“No defendant can be sentenced to capital punishment unless the aggravating factors outweigh the mitigating factors.”)
63 The State and the defendant may now present evidence relative to the nature of the crime and the character of the defendant. You are instructed that this evidence when considered with the evidence you have already heard is presented in order that you might determine, first, whether sufficient aggravating circumstances exist that would justify the imposition of the death penalty and, second, whether there are mitigating circumstances sufficient to outweigh the aggravating circumstances, if any. * * * As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the judge; however, it is your duty to follow the law that will now be given you by the court and render to the court an advisory sentence based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist. * * * Should you find sufficient aggravating circumstances do exist, it will then be your duty to determine whether mitigating circumstances exist that outweigh the aggravating circumstances. * * * If you find the aggravating circumstances do not justify the death penalty, your advisory sentence should be one of life imprisonment without parole. Should you find sufficient aggravating circumstances do exist, it will then be your duty to determine whether mitigating circumstances exist that outweigh the aggravating circumstances. * * * The sentence that you recommend to the court must be based upon the facts as you find them from the evidence and the law. You should weigh the aggravating circumstances against the mitigating circumstances, and your advisory sentence must be based on these considerations.(emphasis added)
Fla. Std. Jury Inst. (Crim.), “7.11. Penalty Proceedings, Capital Cases”.
The statute and standard jury instructions create a higher burden on the
64 defense because first and in the total absence of consideration of mitigation, a determination must be reached as to whether sufficient aggravating circumstances justify imposition of the death penalty. From this point forward, the State has no further burden. A presumption that death is appropriate is created. Thereafter, to negate that presumption, the defendant must prove that “sufficient mitigating circumstances exist which outweigh the aggravating considerations found to exist” in order to receive a sentence of life. The focus is not on whether the death penalty is justified - the presumption already created - but instead on whether the mitigation totally outweighs the aggravation. Thus, requiring that the mitigation outweigh the aggravation places the burden of persuasion on the defense, and it is a higher burden than was on the State initially to obtain the death penalty.
In practice and as applied here43 in sentencing Snelgrove to death, the focus is on whether mitigation “outweighs” the aggravation. See State v. Dixon, 283
So.2d 1, 9 (Fla.1973) (“When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances.”) While neither the statute nor jury instructions use the term “presumption,” it is clear that a presumption that death is
43 The trial court sentenced Snelgrove to death because “the mitigating circumstances are insufficient to outweigh the aggravating factors which have been found to exist.” (V9, R1581)
65 appropriate exists in the absence of mitigation.44 The ability of a defendant to negate that presumption does not save the statute and jury instructions, especially where the defendant’s burden of persuasion to prove that a life sentence is justified
(overall) is higher than was on the State to initially prove (in a vacuum) that the death penalty is the proper sentence.
Specifically, the initial determination made that death is appropriate is based solely on considering aggravating circumstances. The State has only to prove, in a vacuum, that the aggravation supports the death penalty. The presumption is created. Defendants then have the burden of proving that mitigation exists AND that the mitigation totally outweighs that aggravation. This is fundamentally unfair because defendants bear the burden of persuasion on the ultimate issue rather than having that of producing evidence.
The right to a jury trial, fundamental fairness and Due Process under the
Fifth, Sixth and Fourteenth Amendments require that the State ultimately bear the burden of persuasion that imposition of capital punishment is justified:
The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
44 See, e.g. Davis v. State, 703 So.2d 1055, 1060-61 (Fla.1997); Elledge v. State, 706 So.2d 1340, 1346 (Fla.1997); Valle v. State, 474 So.2d 796, 806 (Fla.1985); Alford v. State, 307 So.2d 433, 444 (Fla.1975).
66 which he is charged.” In re Winship, 397 U.S., at 364. This “bedrock, ‘axiomatic and elementary’ [constitutional] principle,” id., at 363, prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.
Francis v. Franklin, 105 S.Ct. 1965, 1970 (1985).
Functionally, Florida’s statute and standard jury instruction mirror the procedure condemned in Mullaney, where the state had only to prove that an intentional and unlawful homicide occurred, and the defendant then bore the burden of proving “by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation” to avoid punishment for committing murder as opposed to manslaughter. Mullaney, 95 S.Ct. at 1883. It is proper to cast the burden of producing evidence on the defendant to place an ultimate fact in issue but, consistent with In re Winship, 397 U.S. 358 (1970), due process and the right to a jury trial , the state must bear the ultimate burden of persuasion beyond a reasonable doubt. Mullaney, 95 S.Ct. 1889-1890.
The requirement that the government bear the burden of persuasion beyond a reasonable doubt is a component of fundamental fairness that serves as a cornerstone for public acceptance of the outcome of the trial. Mullaney, 95 S.Ct. at 1890. Due to the uniqueness in severity and finality of capital punishment, due
67 process compels a heightened scrutiny of the procedures as to both the conviction and sentencing of a defendant in order to achieve the requisite reliability under the eighth amendment. Monge v. California,118 S.Ct. 2246 (1998).
Over timely objection and express request for a proper instruction, an unconstitutional burden of persuasion was placed on this defendant contrary to the
Fifth, Sixth, Eighth and Fourteenth Amendments, United States Constitution, and
Article I, §§ 2, 9, 16, 17 and 22, Florida Constitution, as explained in the holdings of In Re Winship, and Mullaney v. Wilbur. The death sentences erroneously imposed here must be reversed and the standard jury instructions setting forth the improper standard in § 921.141 must be ruled unconstitutional.
POINT VII
THE APPELLANT’S DEATH SENTENCE WAS IM- PERMISSIBLY IMPOSED, RENDERING THE DEATH SENTENCE UNCONSTITUTIONAL.
The sentences of death must be vacated. The trial court found improper aggravating circumstances, failed to consider (or gave only little weight to) highly relevant and appropriate mitigating circumstances, and improperly found that the aggravating circumstances outweighed the mitigating factors. These errors render
Snelgrove’s death sentences unconstitutional in violation of the Eighth and Four-
68 teenth Amendments to the United States Constitution and Art. I, §17 of the Florida
Constitution. Aggravating circumstances must be proven beyond a reasonable doubt to exist and review of those factors is by the competent substantial evidence test. Where evidence exists to reasonably support a mitigating factor (either statutory or non-statutory), the court must find as mitigating that factor. Review of the weight given to mitigation is subject to the abuse-of-discretion standard. See
Cole v. State, 701 So.2d 845, 852 (Fla. 1997). It is submitted that this Court’s proportionality review, being a question of law, is a de novo review.
A. The Trial Judge Considered Inappropriate Aggravating
Circumstances
Aggravating circumstances must be proven beyond a reasonable doubt by competent, substantial evidence. Martin v. State, 420 So.2d 583 (Fla. 1982); State v. Dixon, supra at 9. The state has failed in this burden with regard to at least two of the aggravating circumstances found by the trial court, that of HAC and prior conviction for a violent felony; and the court gave inappropriate weight to a relatively minor (under the facts of the case) aggravating factor, on community control for a prior felony. Additionally, the court engaged in improper doubling of
HAC and the vulnerability of victims due to advanced age aggravators. The court’s findings of fact, based in part on matters not proven by substantial, compe-
69 tent evidence beyond a reasonable doubt, and on erroneous findings, do not support these circumstances and cannot provide the bases for the death sentences.
The capital felony was committed by a person under sentence of imprisonment or placed on community control or probation. §921.141(5)(a), Fla. Stat.
The evidence showed that Snelgrove was on community control when the homicides occurred. The underlying offense for community control was tampering with evidence, in that Snelgrove swallowed a piece of crack cocaine when being questioned by police in Orlando. The trial court, in instructing the jury on this aggravator, at the request of the prosecutor and over defense objections, shortened the instruction to eliminate the phrase “under sentence of imprisonment” as surplusage. Defense objected, contending that by shortening the instruction, the court was deleting an important portion of the statutory aggravator which would assist the jury in determining the proper weight to be given this factor as it applied to the instant case.
The decision of the trial court to give or withhold a proposed jury instruction is reviewed under an abuse of discretion standard. Campbell v. State, 812 So.2d
540, 543 (Fla. 4th DCA 2002). Each party has the right to have the jury fully and fairly instructed “on the law applicable to the evidence under the issues presented.”
Id. See also Kearse v. State, 770 So.2d 1119, 1132 (Fla. 2000). That is the whole
70 point of giving a jury instruction – to accurately inform the jury of the law. Johnson v. State, 842 So.2d 228, 230 (Fla. 1st DCA 2003). In Johnson, the court ruled that a shortened or “sanitized” jury instruction requested by the defendant was not a fully correct instruction of the legal elements and accordingly, the trial court properly denied the proposed instruction. See Kransnosky v. Robbins, 120 So.2d
184, 185 (Fla.1960) (ruling that the trial judge was justified in refusing a requested jury instruction because it did not accurately state the law); Perriman v. State, 731
So.2d 1243, 1246 (Fla.1999) (stating that “[t]he yardstick by which jury instructions are measured is clarity, for jurors must understand fully the law that they are expected to apply fairly.”)
The shortened instruction given here, deleting the more serious alternative under the aggravator ,was thus an incorrect statement of the law, which did not fully explain the law and all the elements of the aggravator that the jury was expected to apply fairly. Since the death penalty decision is a weighing process, rather than a mere counting process, the lack the jury’s knowledge of the more serious alternative of being under a sentence of imprisonment for the prior felony gave them no yardstick by which to give appropriate weight to this aggravating factor that the defendant was only on community control. Since the jury was not apprized of the full aggravator, their weighing of this factor must be considered
71 invalid and the aggravating factor stricken from consideration.
Moreover, the trial court also failed to consider the relatively minor weight this aggravator should legally be given inasmuch as it was community control rather than a prison sentence and given the relatively minor nature of the offense (a crack addict destroying evidence by swallowing his stash when questioned by police).
The fact that Snelgrove was on community control is intertwined with his long-term cocaine addiction. The letter written by David Snelgrove asking to stay in the drug treatment program, just two weeks prior to the homicides, reflects that he was trying hard to overcome his addiction and needed professional help in doing so.
The expulsion from the drug treatment program, and the testimony of Drew
Edwards showing that Snelgrove then did the right thing by calling his sponsor, who refused assistance, greatly diminishes the weight that should be given this factor. This is not a situation where an inmate kills another inmate or a guard, or a defendant who is on probation for a violent felony who is violent again. This aggravating circumstance does not compel a sentence of death and it does not make this the most aggravated of first-degree murders. It must be given little weight in the grand scheme of a life or death decision here.
The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person. §921.141(5)(b), Fla. Stat.
72 This aggravating factor, by its very terms, requires a previous “conviction” of the violent felony to qualify. The contemporaneous violent felony can be tried in the same trial as the capital felony and still qualify as a prior violent felony but it has been limited to actual convictions for violent felonies. Sireci v. Moore, 825 So. 2d
882 (Fla. 2002); Elledge v. State, 346 So.2d 948 (Fla. 1977). An arrest or pending, untried charge does not qualify. Id. Lucas v. State, 376 So.2d 1149, 1152-1153
(Fla. 1979), held that contemporaneous attempted murders could be used as the prior violent felonies since both convictions “were entered ‘previous’ to sentencing and were therefore appropriately considered by the trial judge as an aggravating factor.” In King v. State, 390 So.2d 315, 320-321 (Fla. 1980), the Court noted that even violent felonies committed after the murder could still be used as long as there was a conviction at the time of sentencing:
The legislative intent is clear that any violent crime for which there was a conviction at the time of sentencing should be considered as an aggravating circumstance.
Here, though, the trial court had not adjudicated the defendant guilty of the two murders prior to the sentencing jury’s recommendation. Hence, it did not fall into this statutory aggravator which requires a conviction “at the time the jury considered it recommendation to the trial judge.”King v. State, supra.
Even if this Court now would rule, contrary to the specific language of the
73 statute, that a conviction need not be entered prior to the sentencing trial, a contemporaneous conviction where the defendant had up to that time lived a violence-free life, must be given lesser weight. The aggravating nature of a “prior” violent or capital felony is most influential for people who have multiple violent felonies over a period of time. See, e.g. Remeta v. State, 710 So.2d 543 (Fla.
1998). The “prior violent felony” also weighs heavily in favor of the death penalty for serial killers, who carefully committed five first-degree murders, three sexual batteries, and three armed burglaries over a 72-hour period. See Rolling v. State,
695 So.2d 278 (Fla.1997).
Where as here, contemporaneous violent crimes are not preceded by any prior violence on the part of the defendant, the weight of this factor is substantially less than for those with a long history of prior violent crimes. See Almeida v. State,
748 So.2d 922, 933 (Fla.1999) (Life sentences appropriate in homicide case where,
“In addition to the mental health mitigation . . . the defendant was twenty years old at the time of the crime, and the present crime and the [two] prior capital felonies all arose from a single brief period of marital crisis that spanned six weeks. We note that the jury vote was seven to five.”); Terry v. State, 668 So.2d 954, 965
(Fla.1996) (“While this contemporaneous conviction qualifies as a prior violent felony and a separate aggravator, we cannot ignore the fact that it occurred at the
74 same time, was committed by a co-defendant, and involved the threat of violence with an inoperable gun.”)
While contemporaneous convictions for violent crimes do qualify as “prior” violent felonies, it is clear from the evidence that cocaine addiction, emotional distress and mental illness mitigate the application of this aggravating factor here.
The evidence conclusively shows that violence is totally out of character for David
Snelgrove. His aunt testified that David “does not have a violent bone in his body.” There is no evidence in the record even suggesting that Snelgrove has ever before been violent (his prior offenses were all drug related and non-violent), and the testimony of the family members, friends and experts who knew him and reviewed the records all show this. The contemporaneous violent crime is not entitled to great weight in light of the mitigating evidence. This factor does not make this the most aggravated and least mitigated of first-degree murders. This factor either must be rejected (because of no prior adjudication for the offense) or, at the very least, be given minimal weight.
Especially heinous, atrocious or cruel. §921.141(5)(h), Fla. Stat.
This Court has defined the aggravating circumstance of heinous, atrocious, or cruel in State v. Dixon, supra at 9:
It is our interpretation that heinous means extremely wicked or
75 shockingly evil; that atrocious means outrageously wicked and vile; and that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.
Recognizing that all murders are heinous, Tedder v. State, 322 So.2d 980, 910 (Fla.
1975), this Court further defined its interpretation of the legislature’s intent that the aggravating circumstance only apply to crime especially heinous, atrocious, or cruel.
As this Court has stated in Santos v. State, 591 So.2d 160, 163 (Fla. 1991), and Cheshire v. State, 568 So.2d 908, 912 (Fla. 1990), this factor is appropriate only in torturous murders which exhibit a desire to inflict a high degree of pain, or an utter indifference to or enjoyment of the suffering of another. See, e.g., Douglas v. State, 575 So.2d 165, 166 (Fla. 1991) (torture-murder involving heinous acts extending over four hours). The present murder happened too quickly with no suggestion that Snelgrove intended to inflict a high degree of pain or otherwise torture the victims. Accordingly, the trial court erred in finding this factor to be present. The fact that two persons are killed, even after a short confrontation, does not necessarily show that the homicides were especially heinous, atrocious or cruel.
See Cheshire v. State, supra at 912 (HAC “is proper only in torturous murders – those that evince extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the
76 suffering of another.”).
Here, the medical examiner testified that Mr. and Mrs. Fowler were rendered unconscious very quickly, within seconds, they would not have regained consciousness. The testimony and physical evidence supports the conclusion that they were quickly killed in the dark after awakening and confronting the intruder.
The blows struck by perpetrator were sufficient to immediately stun them and cause unconsciousness. Their injuries were consistent with being held by one hand and hit with the other, again consistent with this happening in complete darkness.
There was no suggestion whatever of sexual abuse or intentional torture. Neither
Mr. nor Mrs. Fowler were abducted, transported to another area of the house or bound. If Mathews is believed, David Snelgrove stated afterward that it was not to have happened like that. This was to be a simple burglary only. The physical evidence shows that.
The HAC factor is appropriately given enormous weight when there is intentional torturing and intentional mental anguish inflicted upon a suffering victim:
The murder described in gruesome detail in this record is a most heinous and calculated slaying. Prior to the murder, appellant kidnaped, repeatedly abused, sexually molested, bound and gagged, and literally toyed with the victim. At one point, the victim was stretched and tied to a sawhorse; at another, she was wired between two trees. It is clear from the statements of Frantz that Mendyk actually planned the murder of Larmon in advance and calculated upon
77 that plan as he returned to the site where she was bound. It is equally clear that the torture and terror this the victim must have endured for a lengthy period of time which was directly intended by Mendyk was certainly extreme, rendering this murder heinous, atrocious and cruel.
Mendyk v. State, 545 So.2d 846, 850 (Fla. 1989)(emphasis added). See Booker v.
State, 773 So.2d 1079, 1091 (Fla.2000) (“It is uncontested in this case that HAC was properly established in the brutal sexual battery and stabbing death of the ninety-four-year-old female victim.”); Chandler v. State, 534 So.2d 701, 704 (Fla.
1988) (“We agree with the trial court's finding these murders to have been heinous, atrocious, or cruel after considering that this elderly couple, of whom the wife was very frail, must have suffered great fear and apprehension after being subdued and abducted from their home by a young man armed with a baseball bat and knife and then beaten to death in each other's presence.”)
This Court is all too aware of the depravity of those who intentionally torture and enjoy the suffering of others. It is in cases like that, and for people who intentionally do things like that, where the crimes become the most aggravated of capital crimes. See Schwab v. State, 636 So.2d 3, 8 (Fla. 1994) (HAC appropriate where boy was abducted, taken to motel room, stripped naked, bound and gagged, anally raped, and then smothered to death); Power v. State, 605 So.2d 856, 863
(Fla. 1992) (HAC appropriate where 25 year old man took small 12-year-old girl
78 prisoner, terrorized her, anally and vaginally raped her, hog-tied and gagged her, then stabbed her and left so that she slowly bled to death over period of 10 to 20 minutes). The death penalty is reserved for such defendants, who commit such crimes.
The circumstances of this case, on the other hand, do not support the conclusion that Snelgrove intended to cause any unnecessary suffering to the
Fowlers. Rather, the evidence is consistent with both victims being quickly killed when, in response to being grabbed or struck from behind by Mr. Fowler, the burglar reacted irrationally. The mental and emotional condition of David
Snelgrove is an important aspect of his response to being cornered while burglarizing the Fowlers’ home. There is no evidence in the record contradicting the fact that David has brain damage, is dependent on crack cocaine, was under extreme mental and emotional disturbance at the time of the homicides, and that his capacity to conform his conduct to law was substantially impaired in the early morning hours of June 24, 2000. “In light of these mitigating circumstances, one may see how the aggravating circumstances carry less weight and could be outweighed by the mitigating factors. The heinous, atrocious and cruel murders were committed in an irrational frenzy.” Amazon v. State, 487 So.2d 8, 13 (Fla.
1986). The death penalty is not the appropriate sentence for David Snelgrove when
79 the totality of circumstances is considered, because his case is not the most aggravated and least mitigated of capital crimes.
The state failed to meet its burden in this case. In Rhodes v. State, 547
So.2d 1201 (Fla. 1989), the decomposing body of an approximately forty-year-old female, missing her lower right leg, was found in debris being used to construct a berm in St. Petersburg. The medical examiner determined manual strangulation to be the cause of death because the hyoid bone in the victim's throat was broken.
Although Rhodes claimed the victim died accidentally when she fell three stories while in a hotel, three of Rhodes’ fellow inmates at the jail testified that Rhodes admitted killing the victim. The trial court in Rhodes had found that HAC applied stating:
That the murder of Karen Nieradka was especially heinous, atrocious and cruel in that the victim was manually strangled and the clumps of her own hair found in her clenched hands indicates the pain and mental anguish that she must have suffered in the process.
This Court, however, rejected the trial court’s finding of HAC, finding that the victim may have been semiconscious at the time of her death according to the conflicting stories told by Rhodes. Further, the Court, quoting State v. Dixon, found nothing about the commission of this capital felony “to set the crime apart from the norm of capital felonies.”
80 In DeAngelo v. State, 616 So.2d 440 (Fla. 1993), the defendant struck the victim on the head, used manual strangulation, and then strangled the victim with a ligature. The trial court did not find the presence of this aggravator. In rejecting the state request for HAC, this Court upheld the trial court, agreeing that the state had failed to prove that the victim was conscious during the ordeal, relying on the medical examiner’s testimony as to the possibility that at the time she was strangled with the ligature the victim was unconscious as a result of the pressure of the manual choking or as a result of a blow to her head. This is precisely the situation here. The facts of the instant case reveal that there was no intentional torture of the victims.
The state presented absolutely no testimony from the medical examiner to support any conclusion that there was excessive pain or torture involved here.
There was no testimony the victims were acutely aware of impending death. The testimony and evidence is all to the contrary; the victims here were rendered unconscious in a very brief time, with little suffering and pain. Contrast, e.g., Davis v. State, 604 So.2d 794 (Fla. 1992), wherein the medical examiner testified that the
73-year-old victim likely was not rendered unconscious by a blow to the head and could have been conscious for thirty to sixty minutes, while slowly bleeding to death from the stab wounds.
81 The contrast between those cases involving torture or depravity and the instant case should be clear; failure to recognize the contrast would render
Florida’s capital scheme unconstitutional. Here, the state has failed to prove this factor of torture or depravity beyond a reasonable doubt. The conclusion of the trial court should be rejected. Even if not rejected outright, due to the lack of evidence of torture and desire to inflict suffering, this factor should, at most, be given minimal consideration in the weighing and proportionality review process.
The sentencing order also shows that the trial court counted the same aspects of the crime as two separate aggravating circumstances. (V9, R1569-1571,
1576-1578) This Court has held that aggravating circumstances cannot be doubled.
A doubling occurs when one aspect of the case gives rise to two or more aggravating circumstances. In such an instance, only one aggravating circumstance can be found and considered. E.g. Provence v. State, 337 So.2d 783 (Fla. 1976)
(pecuniary gain and during the course of a robbery); Lukehart v. State, 776 So.2d
906,925 (Fla. 2000) (improper doubling of committed in the course of aggravated child abuse and victim under the age of 12); Ray v. State, 755 So.2d 604, 611 (Fla.
2000) (improper doubling of prior violent felony (contemporaneous robbery) and
82 during the course of a robbery).45
Here, the trial court found for both murders both aggravators of HAC, and the victims’ vulnerability due to their advanced age. Both aggravating factors here speak of the vulnerability of the victims and their infirmities. This single aspect, then, of the victims’ status of advanced age and vulnerability gives rise to both of these circumstances. Thus, these should have been considered as only a single aggravating circumstance and the jury so instructed. Castro. The sentences must be vacated and reduced to life or remanded for a new penalty phase.
B. Mitigating Factors, Both Statutory and Non-Statutory, Are Present Which Outweigh Any Appropriate Aggravating Factors.
In Campbell v. State, 571 So.2d 415 (Fla. 1990), this Court reiterated the correct standard and analysis which a trial court must apply in considering mitigating circumstances presented by the defendant, reminding courts that the sentencer may not refuse to consider, as a matter of law, any relevant mitigating evidence. See Eddings v. Oklahoma, 455 U.S. 104, 114-115 (1982); Rogers v.
State, 511 So.2d 526 (Fla. 1987). Where evidence exists to reasonably support a mitigating factor (either statutory or non-statutory), the court must find it as
45 When there is a possibility that a doubling of aggravators may arise, the defense is entitled, upon request, to a jury instruction on the prohibition against doubling. Castro v. State, 597 So.2d 261 (Fla. 1992).
83 mitigating. For a trial court’s weighing process and its sentencing order to be sustained, that weighing process must be detailed in the findings of fact and must be supported by the evidence. The trial judge should expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether it is supported by the evidence and whether, in the case of nonstatutory factors, it is truly of a mitigating nature. The court must find as a mitigating circumstance each proposed factor that is mitigating in nature. This is a question of law. Campbell v. State, supra. This Court summarized the Campbell standards of review for mitigating circumstances:
(1) Whether a particular circumstance is truly mitigating in nature is a question of law and subject to de novo review by this Court; (2) Whether a mitigating circumstance has been established by the evidence in a given case is a question of fact and subject to the competent substantial evidence standard; (3) The weight assigned to a mitigating circumstance is within the trial court’s discretion and subject to the abuse of discretion standard.
Blanco v. State, 706 So.2d 7 (Fla. 1997); Cave v. State, 727 So.2d 227 (Fla.1998).
The trial court’s sentencing order here totally fails to meet this standard necessitated by the capital sentencing scheme. The trial court glossed over the statutory and non-statutory mitigating factors and improperly rejected them or abused its discretion in giving them little weight, with no explanations why.
Mitigating considerations that have consistently and historically been deemed
84 to be “significant” exist here. For instance, in Mahn v. State, 714 So.2d 391 (Fla.
1998) the Court reversed two death sentences and remanded where the trial judge applied the wrong legal standard in concluding that the defendant was not under the influence of drugs or alcohol when murders were committed. Citing Ross v. State,
474 So.2d 1170, 1174 (Fla. 1985), the Court noted that a defendant’s past drug and alcohol abuse problems are “collectively . . . a significant mitigating factor” even though the defendant testified he was “cold sober” on the night of the murder.
Mahn, supra at 401. The evidence here shows that, rather than being cold sober,
Snelgrove was in the acute stage of craving for crack cocaine, and that his actions were controlled solely by his addiction to that drug.
The court’s sentencing order finds the statutory mitigating factor of “under the influence of extreme mental or emotional disturbance,” but inappropriately minimizes it to a simple drug addiction and craving for cocaine which “certainly had some impact on Mr. Snelgrove’s thinking at the time of the murders.” (V9,
R1571, 1578) The court did not indicate specifically how much weight it was giving this factor and why, merely announcing that it must “weigh this mitigator.”
(V9, R1572, 1578) In glossing over this powerful mitigator, the trial court failed to consider the strong, irresistible impact Snelgrove’s addiction had on him and the unrebutted expert testimony of his desperate struggles to break free of the
85 addiction. There was testimony of biological brain damage; of Snelgrove’s total dependence on his mother, who died suddenly (within a short time of his father’s death), which left him decimated and caused his worsening spiral into depression and addiction. (V33, T308, 310-311, 360, 363-366, 377-378, 381; V35, T528-529,
538, 544-545) His discharge from a drug treatment program (in which he proudly stayed off drugs for three months) for the minor offense of fraternization caused him to lose all hope of recovery, supplanting that hope with pure despair. (V35,
T590) Having been drug-free for over three months Snelgrove astoundingly remained off drugs for two weeks on his own after being ousted from the treatment program, but ultimately succumbed to the strong desire). Especially coupled with his biological impairments, the cocaine craving was irresistible and had total control of him on the night of the murders.
This mitigating circumstance has been called “the mitigating factor of the most weighty order.” Rose v. State, 675 So.2d 567, 573 (Fla. 1996) and has been found to justify a life sentence. See Kramer v. State, 619 So.2d 274 (Fla. 1993)
(death sentence disproportionate where suffered from alcoholism and under influence of mental or emotional stress – held to be substantial); Nibert v. State,
574 So.2d 1059 (Fla. 1990) (drinking heavily at time of murder part of basis for substantial mental mitigation). See also Jackson v. State, 704 So.2d 500 (Fla. 1997)
86 (wherein the Court reversed a death sentence where the trial court had merely found expert testimony “non-credible,” without explaining why it had rejected the expert testimony); Ferrell v. State, 653 So.2d 367, 371 (Fla. 1995) (wherein the Court remanded for resentencing, emphasizing that a trial judge must expressly evaluate all of the mitigators proposed in light of the evidence and must detail the results of his weighing process); and Larkins v. State, 655 So.2d 95 (Fla. 1995) (wherein the
Court remanded the case for reconsideration of mental mitigation where the findings were insufficient to show a “sufficiently reasoned analysis” under
Campbell because they did not “expressly evaluate” each one.
Here, the trial court did not assess this additional unrebutted evidence and failed to place it into the necessary equation. This factor is present in the most weighty measure, compelling a life sentence.
Next, the trial court stunningly rejected “the substantial impairment of the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of the law,” incorrectly stating that, while there was some testimony of some abnormal brain function and somewhat limited intelligence,
“the state presented evidence in rebuttal.” (V9, R1572, 1579) First of all, this statement is clearly erroneous; there was no rebuttal evidence regarding this factor presented by the state – no mental health experts testified for the state; and aside
87 from the state attorney’s attempts to minimize the neurological testing as mere
“slow glucose intake,” the unrebutted, firmly established (no reasonable person could differ) evidence shows specifically that the defendant suffered damage to the areas of the brain (“clinically significant”) which “significantly” diminished his control over his behavior and “contributed to the situation in which he appears to have become out of control or violent.” (V34, T399-400) Damages to these areas of the brain alone caused significant loss of emotional and impulse control and are involved with the regulation of aggression and the ability to integrate cognition and movement, making Snelgrove much more vulnerable. (V33, T258-259) When coupled with a long-standing crack cocaine addiction, which has a profound impact on the frontal lobe as well, the impairment is amplified, causing severe mental disturbance and “substantial” impairment to Snelgrove’s ability to control his actions, especially if startled. (V33, T240, 260-261; V35, T606) The cocaine ingestion further impaired David’s already fragile brain, “significantly” explaining the aggressive behavior exhibited in this one instance due to its effect on an area of the brain responsible for the survival instinct, causing the person to be hyper- vigilant and “very much more prone to act impulsively.” (V33, T260, 293; V35,
T606)
Moreover, the defendant also suffered from a long-standing, chronic
88 disturbance, “a biological malfunction in his brain,” the presence of hallucinations and biological mood disturbance. (V33, T348-349) His IQ testing, when extrapolated to the current testing criteria was between 68 and 70, below the retardation level, showing, again “significantly,” that certain portions of his brain were not functioning properly, which “significantly” diminished his control over his behavior and contributed to the crime and violence on this one occasion. (V33,
T355-359; V34, T399-400)
The trial court’s sentencing order, however, fails to mention or analyze or dispute any of the above-cited testimony, mistakenly claiming that the state presented rebuttal testimony, without any citations to facts, and thus, erroneously concluding that these factors did not substantially impair the defendant. (V9,
T1572) As such, the court erred by not considering this weighty and unrefuted mitigating evidence.
Similar facts in other cases have resulted in a strong finding of this mitigating factor. See Besaraba v. State, 656 So.2d 441, 445-446 (Fla. 1995) (defendant experiencing a psychotic episode in which he was unaware of his actions, evidence of past emotional disturbances, and situational stress of confrontation with victim which triggered episode, all establish this mitigator and justify a life sentence);
Morgan v. State, 639 So.2d 6 (Fla. 1994) (rage and mental infirmity; Court applied
89 this circumstance to reduce to life, despite finding by trial court that it did not play a major role in the crime); Knowles v. State, 632 So.2d 62, 67 (Fla. 1993)
(organic brain damage, psychotic state, neurological deficiencies, coupled with intoxication caused this Court to reverse trial court’s rejection of this factor and to reduce to life); Rivera v. State, 561 So.2d 536 (Fla. 1990) (borderline personality disorder, impulsiveness, lack of control of anger, affective instability); Carter v.
State, 560 So.2d 1166 (Fla. 1990) (organic brain damage, increased impulsiveness, diminished ability to plan events, psychologist testified that defendant “probably” unable to appreciate criminality). For cases involving alcohol and drug usage that have found this factor, see Stewart v. State, 558 So.2d 416 (Fla. 1990) (defendant drunk most of the time and used drugs; his control over his behavior was reduced by alcohol abuse); Knowles v. State, 632 So.2d 62 (Fla. 1993) (neurological deficiencies and intoxication); Heath v. State, 648 So.2d 660 (Fla. 1994) (alcohol and marijuana consumption); Morgan v. State, 639 So.2d 6, 13-14 (Fla. 1994)
(voluntary intoxication); Carter v. State, 560 So.2d 1166 (Fla. 1990) (extensive drug abuse and possibility of substantial intoxication at time of the murder);
Campbell v. State, (chronic drug and alcohol abuse, among other things); Songer v. State, 544 So.2d 1010 (Fla. 1989); Burch v. State, 522 So.2d 810 (Fla. 1988)
(PCP usage); Amazon v. State, 487 So.2d 8 (Fla. 1986) (long history of drug abuse
90 and had taken drugs on night of offense). And for cases dealing with the low intelligence levels recorded by Snelgrove, see Morgan v. State, 639 So.2d 6 (Fla.
1994) (factor found where defendant had low I.Q., although still in normal range);
Campbell v. State, 571 So.2d 415 (Fla. 1990) (retarded I.Q. level, poor reasoning skills, third grade reading ability); Morris v. State, 557 So.2d 27 (Fla. 1990) (I.Q. of
75, mental limitations obvious).
The above-cited cases cannot be reconciled with the evidence and sentencing order here. To fail to follow these precedents renders the defendant’s death sentences constitutionally unsound. There exists strong, unrefuted evidence that the defendant’s organic brain damage, cocaine addiction, and low intelligence directly and significantly contributed to these crimes. This statutory mitigating circumstance is present and is present solidly; it was error to reject it. The two death sentences must be vacated and reduced to life.
The trial court merely lists, without any additional comment or analysis of the weight to be given them, twelve nonstatutory mitigating factors. Again, the failure of the trial court to provide details of its weighing process with factual findings and support from the evidence dooms the sentencing order to unconstitutional status.
The trial judge must expressly evaluate (not just list) in its written order each mitigating circumstance proposed by the defendant to properly weigh the
91 sentencing determination and provide this Court with a basis of review. Campbell v. State, supra.
The letter David Snelgrove wrote just two weeks before the homicides is compelling mitigation that trial counsel inadvertently failed to address in the closing argument (see Point IV, supra), but argued to the trial court. That letter shows insight into cocaine addiction and a will to overcome it. It shows timely recognition of the power of cocaine addiction and ultimate realization that David Snelgrove was addicted to crack cocaine and needed help to kick it. The motivation for writing the letter, and its content, is critical in understanding the true character of David
Snelgrove. It was not a defensive letter – it did not blame anyone for his pending expulsion from the program. He admitted responsibility and his shame for allowing other human emotions get in the way of “the single most important thing to him - his sobriety.” It was a cry for help that, had it been heeded, would NOT have resulted in his freedom or the end of restriction, but instead to being subjected to yet more discipline, restriction and structure to help him face his addiction to crack cocaine. It shows deep human feeling and emotion that clearly led to a state of rejection, dark despair and depression just two weeks before his acts on June 24,
2000, when he lost all hope and was dismissed from the program. (V35, T587-591)
The testing and testimony of Dr. Berland show major depression occurring
92 in June 2000, after Snelgrove was expelled from the drug treatment program. (V35,
T587-592) For the first time in his life, David Snelgrove was admitting addiction and pleading for help, and had a glimmer of hope that he would succeed, but his efforts were crushed. His aunt and his cousin Melissa noticed a marked change in him when he returned from the program; David Snelgrove was a changed, lifeless and depressed person when he returned from the Salvation Army. (V33, T303-304,
313) He no longer cared; he had lost all his hopes and dreams for freedom from the dreaded drug and for a better life. Even so, he obtained a job and worked for
10 days. He withstood the craving for crack cocaine for a full week before having a beer, which triggered the area of the brain associated with crack cocaine craving.
(V35, T589-593)
When he was discharged from the drug program, his belongings were retained, so he wore Jeff McRae’s clothes and had to rely on McRae for transportation and a place to stay. Jeff McRae was perhaps the worst influence
David Snelgrove could be exposed to at that time. McRae was his older cousin who was using crack cocaine and offering it to David Snelgrove. On the drive home from the Salvation Army, McRae tried to get Snelgrove to stop and have a beer and get some crack, but David resisted. McRae contacted drug dealers and purchased the crack cocaine that was used by David multiple times on June 23 and
93 June 24, 2000. It can safely be said that, but for the crack cocaine supplied by
McRae and Snelgrove's expulsion from the program for “fraternizing” this tragic event would not have happened.
At one time, David Snelgrove certainly had a choice about using crack cocaine, but in light of the circumstances in June 2000, he could no longer withstand its sinister influence, and was powerless to resist its use on June 23,
2000. The addiction to and use of crack cocaine does not excuse or justify what was done. However, it is a powerful explanation of what caused these crimes, and it is compelling mitigation that cries for a life sentence.
David Snelgrove did not have a choice about having a mother who drank heavily and partied while she was pregnant with David. He did not have a choice about being born with brain damage, being left either at home alone on tranquilizers or with his mentally ill cousin, nor did he have a choice about his mother and father divorcing. School records were introduced into evidence that show David
Snelgrove was in ESE classes and that he did not complete the 10th grade. (V34,
T402-404) His printing reflects his low intelligence and mental problems. With an
IQ lower than 78, he is yet trainable to do menial jobs, and everyone noted that he was a very hard worker. He cared about people, and squabbling upset him. He counseled Melissa McRae not to use drugs and to respect her elders. (V33, 302-
94 303, 305) David was a great help to his aunt in caring for her elderly brother, Harry
Snelgrove.
The fact that Snelgrove has never before been violent is significant – it is a comment on his character. The fact that a person with David’s mental impairment and exposure to crack cocaine could remain absolutely non-violent for 27 years is a compelling mitigating consideration. It is apparent that he can be safely housed in a
Florida prison and be productive. He can be trained to work in the prison system and will require little supervision. His prior criminal record is not significant, in that virtually all of his offenses are related to his cocaine addiction.
Prior to June 2000, no violence had ever been displayed by Snelgrove. Even the arrest that led to his being placed on community control was accompanied by an opportunity to use force to resist, which he did not. David Snelgrove is a human being who is far from perfect. Yet, overall, the good in him outweighs the bad. Snelgrove is dependent on crack cocaine, and, unfortunately, he is not the only person who has experienced the ghastly addictive quality of that drug. He was incarcerated for 2 years in the Flagler County Inmate Facility, with no DR’s, only two minor “corrective consultations” and one written reprimand.
The death of Snelgrove’s parents, one month apart in 1998, is a mitigating consideration that caused emotional duress and pushed him into further cocaine
95 usage. The unexpected loss of his mother was devastating to David, who was already mentally and emotionally handicapped. She was his emotional anchor, who understood him and was attempting to make up for her earlier deficiencies in caring for him. These mitigating considerations are factors that bear on what an appropriate punishment is for Snelgrove. As explained above, this is not the most aggravated of capital cases. There is no evidence whatsoever that Snelgrove intended to harm anyone prior to being surprised in the darkness by Glyn Fowler.
His comments before the trial court, prior to sentencing, expressing his genuine deep-felt remorse to the Fowler family for their loss and for the ordeal the trial put them through shows that he has accepted his guilt and punishment. (V36, T26-27)
Snelgrove is appropriately punished by life imprisonment.
In conclusion, the trial court found improper aggravating circumstances, including HAC and prior conviction of violent felony; and the improper doubling of
HAC with vulnerability of the victims due to advanced age. As such only three aggravators are left in the equation: on felony community control (relatively weak due to only community control, rather than imprisonment, and due to minor nature of crime [swallowing his crack cocaine]), during the course of the robbery/burglary, and the advanced age of victims. The substantial statutory and nonstatutory mitigating circumstances, unrebutted by the evidence, clearly tips the
96 scale in favor of life imprisonment. His sentences of death, when compared to others, is disproportional and constitutes cruel or unusual punishment under the circumstances. It must be vacated.
POINT VIII
THE JURY’S RECOMMENDATION AT THE PENALTY PHASE WAS TAINTED BY HIGHLY INFLAMMATORY AND IMPROPER VICTIM IMPACT EVIDENCE, RENDERING THE DEATH SENTENCE UNCONSTITUTIONAL.
The defense objected to “victim impact” evidence testimony being introduced as irrelevant to any issue of weighing the statutorily-limited aggravating circumstances, the trial judge quizzically wondering what the jury was to do with this evidence, especially where this Court’s approved instruction (in Kearse, supra), directs the jury that they may consider it as evidence. (V24, T1052; V32,
T48-50, 75-91, 94; V33, T204; V34, T457-459; V35, T638) But the trial court followed the law of this Court and ruled the evidence admissible.
At the penalty phase, the state called three witnesses, two of whom were the victims’ children and who read a statement from the victims’ pre-teen grand- daughter, testifying about their sense of loss and the loss to the church and community, said direct examination encompassing some 30 pages and including eleven personal family photos. (V32, T94-122) The letter told of the love of the
97 victims’ granddaughter for her “Gammy and Gampy” and the sense of loss from
“that one night that changed my life forever.” (V32, T99-102) The family described the photographs that they displayed for the jury, including holiday events, their
“only granddaughter’s” birthday party, or the Rose Bowl Parade when the granddaughter was only six years old. (V32, T102-115) They told of their father’s career in education, from a physical education teacher to eventually rising to the rank of superintendent of schools and of the fun and laughter in their home growing up. (V32, T102-121)
Snelgrove’s jury heard the above testimony and by a bare majority urged his execution. It is not surprising considering the highly emotional and inflammatory testimony that the jury heard from the victims’ grown children, the heart-wrenching letter from their only granddaughter, and their family photo album. The introduction of this evidence, over defense objection, unconstitutionally tainted the jury’s verdict at the penalty phase. This is exactly the type of evidence that prosecutors are presenting to juries throughout this state after this Court’s holding in Windom v. State, 656 So.2d 432 (Fla. 1995) and the enactment of §921.141(7),
Fla. Stat. Prior to Payne v. Tennessee, 501 U.S. 808 (1991), the Eighth
Amendment to the United States Constitution prohibited the introduction of victim impact evidence at the sentencing phase of a capital murder trial. Booth v.
98 Maryland, 482 U.S. 496 (1987). Booth correctly pointed out that the admission of such evidence creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner. The focus is not on the defendant, but on the character and reputation of the victim and the effect on his family, factors which may be wholly unrelated to the blame-worthiness of a particular defendant. Booth pointed out that the presentation of this type of information can serve no other purpose then to inflame the jury and to divert it from deciding the case on relevant evidence concerning the crime and the defendant. Of course, Payne overruled Booth. This Court settled the question in this state by its holding in Windom. Appellant submits that this Court’s holding was erroneous and urges this Court to recede from Windom. Additionally, the evidence in this case exceeded the proper bounds of victim impact evidence.
There is no doubt that the Fowlers were wonderful human beings – their grown children told the jury how their mother and father always helped others. But their loving lives were snuffed out by a crack cocaine addict/common menial laborer. This is the type of weighing of human life that inflames the sentencing jury, infecting the entire process. Rather than making a reasoned judgment from the pertinent evidence and applicable law, the jury was told they could consider this evidence (somehow) in their advisory verdict.
99 The evidence shows the contrast between the victims’ lives and appellant’s life. The Fowlers had a caring family who loved them. They were intelligent and had successful careers and raised a good family. On the other hand, David
Snelgrove had a brain that did not work right. His dysfunctional family abused and abandoned him. He was a drug addict who had little in life. These considerations should not be the factors that determine whether Snelgrove lives or dies. The state’s introduction of the extremely inflammatory testimony crushed any chance that Snelgrove would get a fair determination of a proper punishment. Any slight probative value (indeed if any exists in this unbalanced weighing of human lives) was outweighed by the substantial prejudice. §90.403, Fla. Stat. This Court must recede from Windom – the objectionable, inflammatory, unconstitutional evidence skewed the decision-making process. The state placed a thumb on the scales of justice with this evidence, canting them toward injustice. A new penalty phase is required, without the emotionally charged evidence.
POINT IX
FLORIDA’S DEATH PENALTY IS UNCONSTITUTIONAL UNDER RING V. ARIZONA.
In Ring v. Arizona,122 S.Ct. 2428 (2002), the Supreme Court held that
Arizona’s capital sentencing statute violated the Sixth Amendment, as construed in
100 Apprendi v. New Jersey, 530 U.S. 466 (2000), because the judge, rather than the jury, was given the responsibility of making the findings of fact necessary to impose a sentence of death. Florida law, like Arizona law, makes imposition of the death penalty contingent on a judge’s factual findings regarding the existence of statutory aggravating circumstances, and is thus unconstitutional. 46
46 This Court has nevertheless concluded that it must uphold the constitutionality of Florida’s statute unless and until the United States Supreme Court overrules Hildwin and expressly applies Ring to Florida. See Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002); King v. Moore, 831 So.2d 143 (Fla. 2002).
101 CONCLUSION
The appellant requests that this Court reverse and, as to Points I-III, remand for a new trial; as to Points IV-VI, remand for a new jury penalty phase; and as to
Point VII-IX, remand for imposition of life sentences.
Respectfully submitted,
JAMES B. GIBSON PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT
NOEL A. PELELLA for JAMES R. WULCHAK Fla. Bar no. 0396664 ASSISTANT PUBLIC DEFENDER
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been hand delivered to Hon. Charles J. Crist, Jr., Attorney General, 444 Seabreeze Blvd.,
Fifth Floor, Daytona Beach, FL 32118, this 20th day of January, 2004.
CERTIFICATE OF FONT
I hereby certify that the size and style of type used in this brief is proportionally spaced Times New Roman, 14pt.
______NOEL PELELLA FOR JAMES R. WULCHAK
102