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In the Supreme Court of Florida 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.
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