Its COPY and PASTE time ladies and gentlemen

WHAT WOULD YOU DO IF: 1. I died: live the rest of my life a sad sad man 2. I kissed you: kiss back 3. I lived next door to you: come see you and help you out when your sicky. 4. You found out I was married: I would kill your husband and take his place. 5. I stole something: make fun of you then whisper sweet nothings into your ear. 6. I was hospitalized: see you everyday 7. I refused to leave my home: come see you 8. I got into a fight while you were there: fuck up jenny. WHAT DO YOU THINK ABOUT MY 9. Personality: its great ƒº 10. Eyes: pretty 11. Hair: pretty 12. Family: all over the place WOULD YOU 13. Help me hide a body? Depends who it was 14. Keep a secret if I told you one? I have kept lots 15. Hold my hand? Uhhhhh. Yesss¡K¡K¡K 16. Take a bullet for me? I would take nine 18. Try to solve my problems? I try to everyday of my life 19. Love me? I do 20. Date me? I have HAVE YOU EVER 21. Lied to make me feel better? Yes 22. Wanted to kiss me? everyday 23. Wanted to kill me? no 24. Broke my heart? Everyday 25. Kept something important from me? Only cause I was to shy to say 26. Thought I was unbearably annoying? Haha very seldom. AND MORE 27. Who are you? Your lover 28. Are we friends? Heeellllll no hoe 29. When and how did we meet? Grade nine skiing 30. Describe me in three words: my sex partner ƒº 31. What was your first impression? Woah shes hot 32. Do you still think that way about me now? Damn right 33. What reminds you of me? skiing 34. If you could give me anything, what would it be? Enough money to move to whistler 35. If you could bring me anywhere, where would it be? whistler 36. How well do you know me? Very well but sometimes I wonder 37. When's the last time you saw me? today 38. Do you miss me? I guess so. It hasn¡¦t been that long 39. Ever wanted to tell me something but couldn't? yes 40. Are you gonna repost this to see what I say about you?? Maybe¡K¡K muhahahaha.
 
man that's the shitty one.

I NEED THE REAL ONE, SOMEONE HELP ME OUT, ON THE FRONT PAGE IT'S GOT DIFFERENT COLOURS AND TELLS YOU HOW TO DO THE PAGES...ET CETERA BITCHES
 
shiiiiiiit

Animatronic%20Cyborg.jpg
 
I never meant to be so bad to you

One thing I said that I would never do

One look from you and I would fall from grace

And that would wipe this smile right from my face

Do you remember when we used to dance

And incidence arose from circumstance

One thing lead to another we were young

And we would scream together songs unsung

[Chorus:]

It was the heat of the moment

Telling me what your heart meant

Heat of the moment shone in your eyes

And now you find yourself in 82

The disco hotspots hold no charm for you

You can't concern yourself with bigger things

You catch the pearl and ride the dragon's wings

[Chorus]

And when your looks are gone and you're alone

How many nights you sit beside the phone

What were the things you wanted for yourself

Teenage ambition you remember well
 
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◤◢◣◥◤◢◣◥◤◢◣◥◤◢◣◥◤◢◣◥◤◢◣◥

◢██◣◢██◣◢██◣◢██◣◢██◣◢██◣

its my old sig, i saved it because it takes forever to type these things out.
 
RAYMOND THOMPSON,

Appellant,

_-

IN THE SUPREME COURT OF FLORIDA

k , ZS * * ' " * 4

' .

APPEAL NO. 69,352

vs . (CASE NO. 85-899CFA)

STATE OF FLORIDA,

ON APPEAL FROM THE CIRCUIT COURT,

SEVENTEENTH JUDICIAL CIRCUIT, BROWARD

COUNTY, FLORIDA - CRIMINAL DIVISION

APPELLANT'S INITIAL BRIEF

JANE D. FISHMAN, ESQ.

Counsel for Appellant

8243 Northwest Eighth Place

Plantation, Florida 33324

(305) 473-2613

Florida Bar No. 300561

4 'r

TABLE OF CONTENTS

I CERTIFICATE OF SERVICE . . . . . . . . . . . .

TABLE OF CASES

PRELIMINARY STATEMENT

STATEMENT OF THE CASE AND FACTS . . . . . . .

QUESTIONS PRESENTED ,.

SUMMARY OF ARGUMENT

ARGUMENT

POINT I - THE TRIAL COURT ERRED IN

DENYING APPELLANT'S MOTION FOR A NEW

TRIAL DUE TO THE STATE'S FAILURE TO

DISCLOSE BRADY MATERIAL TO THE DEFENSE. .

POINT I1 - THE TRIAL COURT ERRED IN

PERMITTING THE STATE'S WITNESSES TO

TESTIFY TO BAD ACTS OF THE DEFENDANT

WHICH MERELY WENT TO HIS PROPENSITY

TO COMMIT A CRIME

POINT I11 - THE TRIAL COURT ERRED IN

DENYING APPELLANT'S MOTION TO DISMISS

ON DOUBLE JEOPARDY GROUNDS. . . . . . . .

POINT IV - THE TRIAL COURT WAS WITHOUT

JURISDICTION OVER A HOMICIDE COMMITTED

ON THE HIGH SEAS. . . . . . . . . . . . .

POINT V - THE TRIAL COURT ERRED IN

OVERRIDING THE JURY'S RECOMMENDATION

OF LIFE SENTENCE AND IMPOSING THE

DEATH PENALTY

POINT VI - THE DEATH PENALTY PRESCRIBED

IN FLORIDA STATUTE SECTION 921.141 IS

UNCONSTITUTIONAL ON ITS FACE AND AS

APPLIED IN THIS CASE.

CONCLUSION . . . . . . . . . . . . . . . . . .

PAGE

i,ii,iii

1

2

11

12

-

14

21

26

28

29

42

44

44

4 ‘ h

TABLE OF CASES

-CASE

Amazon V. State,

487 S0.28 8 (Fla.), cert. denied

107 S.Ct. 314 (1986) 32

Arango V. State,

497 So.2d 1161 (Fla. 1986) 19,20

20

Boshears V. State,

511 So.2d 72 1 (Fla.App. 1st DCA 1987)

Brady V. Maryland,

373 U.S. 83 (1963) 14,15116

17,19,20

Brooking8 V. State,

495 So.2d 135 (Fla. 1986) 34

Brown V. State,

s0.26 12 PLW 577

m a . Nov.12, 1987) 15

Buckrem v. State,

355 So.2d 111 (Fla. 1977) 32

Cannady V. State,

427 So.2d 723 (Fla. 1983) 32

Cipollina v. State,

501 So.2d 2 (Fla.App. 2d DCA 1986) 20

Davis v. Alaska,

415 U.S. 308 (1974) 20

Divans V. California,

434 U.S. 1303 (1977) 26,27

Fead V. State,

512 So.2d 176 (Fla. 1987) 29,32,34,

38 , 39

Ferry V. State,

507 So.2d 1373 (Fla. 1987) 29

Furman v. Georgia,

408 U.S. 238 (1972) 42

Giglio V. United States,

405 U.S. 150 (1972 1 15,20

i

Hansbrough V. State,

509 So.2d 108 1 (Fla. 1987)

Huddleston V. State,

475 So.2d 204 (Fla. 1985)

Johnson V. State,

432 So.2d 5' 83 (Fla.App. 4th DCA 1983)

Keen V. State,

504 So.2d' 396 (Fla. 1987)

Malloy V. State,

382 So.2d 1190 (Fla. 1979)

McCaskill V. State,

344 So.2d 1276 (Fla. 1977)

Miller V. Wainwright,

(Mern.Op. Case No. 83-F.Supp. - 849 m-T-13)(M.D. Fla. Nov. 13, 1987)

Moore V. Kern

702 (11 Cir. 1987)

Napue V. Illinois,

360 U.S. 264' (1959)

Parker V. State,

458 So.2d 750 (Fla. 1984)

Phippen v. State,

389 So.2d 991 (Fla. 1980)

Richardson V. State,

246 So.2d 7\11 (Fla. 1971)

Riley v. State,

366 So.2d 19 (Fla. 1978)

Sims V. State,

444 So.2d 922 (Fla), cert. denied

104 S.Ct. 3525 (1983)

State V. Hall,

509 So.2d 1093 (Fla. 1987)

Straight V. State,

397 So.2d 90 3 (Fla. 1981)

Tedder V. State,

322 So.2d 908 (Fla. 1975)

31

32,33

21

28

35

41

15,17,18

16

17

36

32,36 ,37

15

36

25

15

21

29,38

ii

Thomas v. State,

456 So.2d 454 (Fla. 1984)

Thompson V. State,

456 So.2d 444 (Fla. 1984)

United States V. Agurs,

427 UDS. 97 (1976 1

United States V. Bagley,

473 UDS. 667 (1985)

United States V. Difrancesco,

449 U.S. 117 (1980 1

Wade v. Hunter,

336 U.S. 684 (1949)

Wasko v. State,

505 So.2d 1314 (Fla. 1987)

Weitz v. State,

518 S0.26 1060 (Fla.App. 4th DCA 1987)

Williams V. State,

386 So.2d 53 8 (Fla. 1980)

STATUTES

18 U.S.C. Section 7, (1984)

Florida Statutes, Section 90.404 (1979)

Florida Statutes, Section 910.005 (1977)

Florida Statutes, Section 921.141 (1983)

Florida Rules of Criminal Procedure, 3.220

36

34,39

15

15,17

26

26

31,35

21

24,36

28

21

28

42

14

iii

PRELIMINARY STATEMENT

Appellant, RAYMOND THOMPSON, was found guilty of first

degree murder by a jury on June 5, 1986, (R.Vol.21, 3161). After

a full sentencing proceeding on June 20, 1986, the jury

recommended that Appellant be sentenced to life imprisonment

(R.2896).

Notwithstanding the jury's recommendation of life, the trial

judge sentenced Mr. Thompson to die in the electric chair

(R.3340-3351). It is from this judgment and sentence of the

Circuit Court, Seventeenth Judicial Circuit, Broward County,

Honorable Stanton S. Kaplan presiding, that Mr. Thompson now

appeals. This Court has jurisdiction pursuant to Art.V, Section

3(b) (l), Fla.Const.

In the court below, the State of Florida was the prosecution

and Appellant was the defendant.

All references are to the record on appeal and are

designated by "R." followed by the appropriate page numbers.

-1-

STATEMENT OF TEE CASE AND FACTS

In June, 1981, Appellant had a safe installed in the floor

of the woodworking shop of Jimmy Savoy (R.1561-2, 1577, 1952).

Savoy was an old friend and associate of Appellant (R.901)-

Friendship notwithstanding, in August, 1981, Savoy rented a

jackhammer and dug up his friend's safe (R.1791, 825-6). Savoy

sold his business suddenly and fled South Florida with

Appellant's safe containing $600,0001 Savoy bought himself a

brand new gold Camaro in Jacksonville to make his escape (R.1407-

10, 873)-

On August 24, 1981, Jimmy Savoy met with his son Richard in

Mas~achusetts. The father told his son that he was in trouble,

that he had stolen a safe, and that he needed a locksmith to open

the safe. Richard Savoy told his father that he wanted no part

of his crime8 Jimmy Savoy never rpoke to his son Richard again

(Re15151 1518)

Carole McLoughlin, Jimmy Savoy's former girlfriend,

testified that Savoy left Florida suddenly in late August, 1981,

after selling his business (R.1409-1410). Savoy called

McLoughlin several times, and on September 26, McLoughlin met

Savoy at a hotel in Pompano (R.1410-1414, 1417). McLoughlin

claimed that Savoy was very nervous and afraid. He refused to

rent or buy a place to live in his own name, so he paid $30,000

cash for a trailer and put it in her name (R.1417-1421).

Notwithstanding Savoy's supposed terrible fear of being found, he

returned to Florida one month after his theft, bought a trailer

near some of his former associates, and went to the same

4 , L

neighborhood bar nearly every day (R.1432, 1529). According to

McLoughlin, she visited Savoy at his Boca trailer every other

weekend and he telephoned her several times during each week.

She spoke to Savoy on March 7, 19821 when she arrived for her

weekend visit she found Savoy gone, newspapers on his lawn from

Tuesday, March 9, through Friday, March 12, and Savoy's

belongings in the trailer (R.1425, 1429). Although McLoughlin

never saw or heard from Savoy again, she heard from Jevel Woods,

Savoy's neighbor, that Woods saw Savoy at the trailer in May,

1982, (R.1456, 226202264). After that conversation with Mrs.

Woods, Carole McLoughlin withdrew all the money from the joint

bank accounts that Jimmy Savoy had opened for them (R.460).

Bobby Davis, also known as Bobby Vegas, Bobby Allan, Bob

Grant, Brad Meyers and Dean Davis (R.1063), worked for Appellant

on and off for several years. In the spring of 1984, when his

wife was subpoenaed to appear before a federal grand jury, Davis

was worried that he was about to be prosecuted for several crimes

he committed. He considered fleeing the country, but elected

instead to go to the FBI with his promise to solve the Savoy

disappearance and other open cases (R.987, 1029-1034).

Davis' decision to go to the FBI rather than flee the

country turned out to be a sound investment for Davis. In

exchange for his promise to implicate Raymond Thompson, Davis was

permitted to plead guilty to three counts of second degree murder

with a sentencing promise of no more than ten years on each

count, to run concurrently (R.1014, 1156-1157).

In addition, Davis and his wife were supported by the

-3-

federal government. Mr8. Davis received more than $36,000 in

subsistence. Also included in Davis' bargain were travel and

moving expenses, food, a car and insurance, expense money and

even the cost of hou6ing Davis' dog in a kennel (R.1037-1045).

In exchange for cash and a lenient sentence that resolved

all of his outstanding charges, Bobby Davis testified that he,

Bobby Stephens, Pat Menillo and Appellant killed Jimmy Savoy

(R.960). At trial, Bobby Davis told this story:

In September, 1981, Ray Thompson told Davir that Jinuny Savoy

had stolen his money. Appellant said he wanted to find Savoy and

kill him (R.900, 902). Davis testified that Pat Menillo and

Scott Errico were trying to find Savoy for Appellant (R.902).

Henillo and Errico thought they had found Savoy in

Massachusetts. According to Davis, he and Appellant flew to

Boston based on Xenillo and Errico's call, but when they got

there, they found not Savoy, but his son (R.903, 917).

Davis said that they all returned to Florida in late

September and that, a few weeks later, Appellant found a card at

his door from the FBI saying that the FBI knew that Savoy had

stolen Appellant's money and that Appellant wanted to kill Savoy

(R.905)

Notwithstanding the FBI's communication to Appellant, Davis

testified that at that time Appellant told Davis that Appellant

was putting an "open contract" out on Jimmy Savoy's life (R.925-

926, 1081).

Robbert Tippie, also known as Bobby Dania, testified that he

saw Appellant in July, 1981, and that Appellant told him that

-4-

Savoy had stolen his $600,000. Bobby Dania asked Appellant if he

thought he'd get the money back. According to Dania, Appellant

said, '1 don't give a shit about the money. I just want the son

of a bitch dead.' (R.1690-1691). Shortly thereafter, Dania said,

Appellant offered a man at the race track $100,000 to find Savoy

(R.1693). In exchange for this testimony, Tippie/Dania received

immunity from all state and federal prosecutions, cash and direct

benefits worth more than $67,000 for 1985 and for January to

April, 1986, and training, job placement and a new identity as

part of the witness protection program (R.1697, 1707-1713, 1716).

Bobby Davis, apparently, heard no more about Jimmy Savoy

until March, 1982, when he received a telephone call from Bobby

Stephens, also known as Bobby Weasel (R. 926, 1698, 2040).

Stephen8 ran a "chop shop", occasionally did some work at

Appellant's marina, and, with his wife, often baby-sat for Mr.

Thompson's young son, Charlie Boy (R.926, 2139-2140, 2151-2152).

Stephens testified against Appellant in exchange for a plea to

kidnapping and second degree murder with a 10 year sentence#

several other state and federal charges were also disposed of by

this plea. Bobby Davis told Stephens that Jimmy Savoy stole

$600,000 from Appellant and that Appellant was looking for Savoy

(R.2040, 2150). In March, 1982, Bobby Stephens telephoned Bobby

Davis to tell Davis that he had seen Jimmy Savoy at the Cricket

Club, a small bar near Stephens' West Boca home and near Savoy's

mobile home (R.926-927, 2039-2040).

At this point, Davis' and Stephens' stories begin to differ

from each other and from their own prior statements. Davis' said

-5-

4 ,

a t t r i a l t h a t h e t h e n n o t i f i e d Ray Thompson, Pat Menillo and

S c o t t Errico and t h a t Davis, Menillo and Errico went t o t h e

C r i c k e t Club t h e next night. They met Stephens t h e r e , saw t h a t

Savoy was t h e r e and then planned a car accident so they could

grab Savoy. Bobby Stephens t h e n went home while Davis, Menillo

and Errico stayed to w a i t for Savoy (R.926-929).*1

According to Stephens, however, after he c a l l e d Bobby Davis

he went home. Davis came to h i s home t h a t n i g h t to see him, but

they d i d n ' t go to t h e bar (R.2041, 2095). Bobby Davis left

Stephens' home but returned a t nine t h e next morning, picked

Stephens up and drove him to a bar i n Hallandale. There Stephens

met with Appellant, Davis, Menillo, and Errico. He t o l d them he

thought he'd seen Savoy but wasn't sure i f it was him. Davis

then drove Stephens back to West Boca and then l e f t . Davis then

returned again t h a t n i g h t with Menillo and Errico and they a l l

went to t h e C r i c k e t Club (R.2042-2044, 2095-2098).

A t t h e Cricket Club, Menillo and Errico confirmed t h a t t h e

man was Savoy. They and Davis waited for Savoy to leave the bar.

When Savoy came o u t and got i n t o h i s Camaro, Menillo and Errico

l e f t t h e parking l o t ahead of him i n t h e i r Chevette. Davis

followed Savoy i n h i s S e v i l l e (R.929).

A t a s t o p l i g h t , Bobby Davis ran h i s car i n t o Savoy's. When

they got out of t h e i r cars to i n s p e c t t h e damage, Errico grabbed

1/ In h i s previous statements to t h e p o l i c e Davis t o l d a

d i f f e r e n t s t o r y - t h a t when he got Stephens' phone call he took a

taxi r i g h t to t h e C r i c k e t Club, c a l l e d Menillo and E r r i c o to meet

him and they kidnapped Savoy on t h e f i r s t n i g h t , without any

involvement by Appellant (R.1067, 1099). See, i n f r a , Point I,

page 17, for f u r t h e r d i s c u s s i o n of t h i s issue.

-6-

s. "

Savoy and dragged him into Davis' cat. Davia and Menillo were

armed with guns, Errico with a knife. They parked the Chevette

in a nearby lot, Savoy's Caraaro by the side of the road, and then

drove back to Bobby Stephenr' house (R.930-932, 2044).

Bobby Stephens raid that Davis woke him at four a.m.

(R.2044). Davis, Errico, and Menillo took Savoy into Stephens'

back bedroom (R.947, 2045). They tied Savoy's hands and feet1

when Savoy tried to escape, Bobby Stephen8 threatened him with

hi8 gun (R.2046-2047).

The next day Appellant came to Stephenr' house to talk to

Savoy (R.2047-2048, 951). Savoy told Appellant that he stole his

money, but claimed that it had in turn been stolen from him by a

prostitute in South Carolina. According to Bobby Davis,

Appellant did not believe Savoy and told Savoy that he would be

killed if he didn't return the money and he "could die easy or

hard" (R.951). Davis then said that Appellant told him to bring

Savoy to Appellant's house, to put him on the boat for the night,

and they would kill Savoy the next day (R.952-953). Appellant

left Bobby Stephens' house after 45 minutes. After Appellant had

left, Bobby Davis inetructed Stephens, Errico and Menillo to take

Savoy to Appellant's boat, which they did (R.2048-2049, 954).

Bobby Davis guarded Jinmy Savoy down below on the boat that

night. The next morning Davis, Bobby Stephens, Pat Menillo, and

Appellant took the boat out. Davis had tied Savoy up with ropes;

Pat Menillo brought weights and chains which Davia wrapped on to

Savoy (R.954-956, 958). Bobby Stephens drove the boat, a 28 foot

Scarab, with Appellant and Pat Henillo standing alongside him

throughout (R.2049,2051-2052, 2101, 2103) . Bobby Davia remained

below with Savoy, but claimed t h a t Appellant also came below to

again question Savoy and to order Davis to beat Savoy (R.956-

958).

Bobby Davis brought Savoy topside when Bobby Stephens

stopped t h e boat (R.958, 2052-2053). A t t h i s point, Bobby Davis'

testimony d i f f e r s r a d i c a l l y from Bobby Stephens'. Bobby Davis

claimed t h a t he and Pat Menillo stood on e i t h e r s i d e of Jimmy

Savoy with Savoy leaned o u t over t h e s i d e of t h e boat and

Appellant behind him. AccorUing to Davis, Appellant s a i d 'so

long, motherfucker', took Davis' gun becaulse he himself was

unarmed, and shot Savoy i n t h e back of t h e head. Davis and

Menillo threw t h e weights overboard and watched Savoy s i n k

(R.959-961).

Bobby Stephens, on t h e o t h e r hand, t e s t i f i e d t h a t Davis,

Menillo and Appellant were a l l standing around Savoy when

Stephen8 heard a shot. Before t h e s h o t , Stephens saw Bobby Davis

with Davis' gun. After t h e s h o t , when Stephens looked up, he

again saw Bobby Davis with t h e gun. Davis then broke t h e gun

down and threw t h e pieces overboard. Stephens never saw

Appellant with t h e gun (R.2054-2055, 212302124, 962-963).

Stephens drove t h e boat back to Appellant's house.

Appellant asked Stephens to get r i d of Savoy's car so Stephens

decided to c u t it up and dispose of t h e pieces. Steve Chiappa

rented torches and brought them to Stephen8 who c u t t h e car i n t o

f i f t y small p i e c e s which he dumped i n various canals. Stephens

dumped t h e large pieces - t h e engine block, t h e transmission and

-8-

' 9 ' I

the rear end of the car - about 600 pounds of machinery, in the

Johnson Road canal (R.2060, 2057, 2059, 2061, 2104-2105, 964-970,

1789).

In May, 1984, Bobby Davis went to the FBI to work out his

deal for testifying against Ray Thompson. In addition to giving

numerous, often inconsistent statements, Davis agreed to wear a

wire and go see Mr. Thompson in January, 1985, in the hope of

eliciting an incriminating statement from him. In that

conversation Davis told Appellant that he was asked about Savoy.

Appellant asked Davis what he was all excited about and told

Davis not to worry, that the police were just shooting in the

dark. They then talked about a truck that Davis had borrowed

from Appellant, unrelated to the Savoy investigation (R. 2018,

2020, 2024).

Based on Bobby Davis' specific statements to the authorities

concerning where in the ocean Savoy's body was left, where the

large parts of Savoy's car were dumped, and where the car was

torched apart, a widespread investigation for physical evidence

was conducted. Bobby Stephens' house was searched, the FBI

vacuumed Stephens' garage to test trace evidence, canals were

dragged, and pilots and divers searched the pinpointed areas of

the ocean for weeks. Notwithstanding this extensive, repeated

investigation, no part of Savoy's car was ever found in any

canal, the FBI found not even a trace of evidence of Savoy's car

in Stephens' garage, nor did the police ever find any trace of

the metal chains Savoy was allegedly bound with. Nor has any

trace of Savoy's body ever been found (R.1088-1090, 1173, 1289-

-9-

I- I ' I

1299, 1307-1312, 1328-1340, 1401, 1543-1545, 1814-1817, 1827-

1833, 183601848, 184901853? 1858, 187301885? 1887-1890, 2079-

2081, 2105, 2138, 2246-2248). Thus, not a single shred of

physical evidence was introduced to corroborate Davis' story.

Jewel Woods, Savoy's neighbor at the trailer park testified

that she saw Savoy in May, 1982 (R.2262). In addition, Ann

Chiappa, a friend of Appellant's and of Jimmy Savoy's, testified

that she saw Savoy in late December, 1982 at funeral services for

Appellant*s seven-year-old son, Charlie Boy, who died when he was

hit by a car (R.2320,2322-2323).

-10-

QUESTIONS PRESENTED

Whether the trial court erred in denying Appellant's motion

for a new trial where the state failed to disclose critical Brady

material to the defense?

Whether the trial court erred in allowing extensive

Appellant testimony of other crimes and bad acts by which served

only to prove his propensity to commit this crime?

Whether the trial court's failure to dismiss the charge8

against Appellant put Appellant in jeopardy twice, in violation

of the state and federal constitutions?

Whether the trial court was without jurisdiction over a

homicide committed on the high seas?

Whether the trial court erred in overriding the jury's

recommendation of life imprisonment where a reasonable basis for

that recommendation appears in the record and the facts

suggesting the death penalty are not so clear and convincing that

reattonable people could not differ?

Whether the death penalty is unconstitutional on its face or

as applied in this case?

-11-

SUMMARY OF ARGUXENT

As to the trial:

Appellant 18 entitled to a new trial because the State's

failure to disclose critical Brady material - a sworn affidavit

of the State's star witness inconsistent with his trial

testimony - undermines any confidence in the outcome of

Appellant's trial.

Appellant i8 also entitled to a new trial because the trial

court improperly allowed extensive testimony as to bad acts and

uncharged crimes to be received in evidence making it likely that

the jury may have convicted Appellant of this crime because of

inadaissfble evidence tending to show his bad character or

propensity of other crimes.

Appellant is entitled to a reversal of his conviction and a

dismissal of the charge8 against him because this trial violated

the constitutional protections against double jeopardy.

Appellant's first trial was aborted when a state police witness

deliberately violated the trial court's order not to mention

other homicides that Appellant was alleged to have cornnitted.

Where the government provokes a mistrial to gain an advantage

over a defendant, retrial is barred by the double jeopardy

clauses of the United States and Florida constitutions.

As to the death sentence:

There was no reason for the trial judge to override the

jury's recommendation of life imprisonment. The jury's

recommendation is entitled to great weight and the facts relied

-12-

on by the trial judge to support the death penalty are not so

clear and convincing that reasonable people could not differ.

The death penalty is unconatitutional on its face and as

applied in this particular case.

-13-

POINT I

THE TRIAL COURT ERRED I N

DENYING APPELLANT'S MOTION FOR

A NEW TRIAL DUE TO THE STATE'S

FAILURE TO DISCLOSE BRADY MATERIAL

TO THE DEFS

h o r t l y after h i s indictment i n t h i s case, Appellant f i l e d ,

on February 12, 1985, a demand for discovery pursuant to Rule

3.220, F1a.R.Crim.P. requesting, inter a l i a , written or recorded

statements, or t h e substance of oral statements, of any codefendants,

and, any exculpatory evidence, including any w r i t t e n

or oral statements of any person. See, R.2984, 3003, 3008, 3322,

3295. And, of course, pursuant to Rule 3.220, after demand by a

defendant, t h e prosecutor must d i s c l o s e t h e names, addresses and

a l l statements of every person i n c l u d i n g co- defendants, known to

t h e prosecutor to have information relevant to t h e chargea, or to

any d e f e n s e . Pursuant to Rule 3.220(f) t h e prosecutor's

o b l i g a t i o n is a continuing duty.

-

On October 23, 1985, t h e S t a t e ' s s t a r witness, Bobby Davis

swore to an a f f i d a v i t i n support of t h e S t a t e ' s request for t h e

e x t r a d i t i o n of t h e co-defendant Scott Errico (R.3324, 3312).

That affidavit, although known to t h e State, clearly

d i s c o v e r a b l e , and c e r t a i n l y w i t h i n t h e scope of Appellant's

demands for discovery and for Brady material, was never turned

over to t h e defense. I t was only discovered after t h e t r i a l i n

t h i s case through t h e efforts of Appellant's t r i a l counsel

(R.3327).

In spite of t h e State's clear breach of t h e discovery

-14-

requirements of the Florida Rules of Criminal Procedure, the

trial court simply denied Appellant's motion for a new trial.

The court did not conduct the evidentiary hearing mandated by

law to determine the cause for the breach, the prejudice to the

defense and the appropriate sanctions. Richardson V. State, 246

S0.2d 771 (Fla.1971). The failure to comply with Richardson is,

of course, per se reversible. Brown V. State, , 12

FLW 577 (Fla. Nov. 12, 1987); State V. Hall, 509 80.2d 1093 (Pla.

1987).

- - So.2d -

In addition, the prosecutor's obligation is not merely

statutory, but is a constitutional duty under the due process

clause to produce evidence favorable to the accused, which tends

to exculpate him or which tends to indicate bias, interest or

inconsistent statements on the part of a witness. Brady v.

Maryland, 373 U.S. 83 (1963); United States V. Agurs, 427 U.S. 97

(1976)t Giglio V. United States, 405 U.S, 150, 154 (1972); United

States V. Baqley, 473 U.S. 667 (1985). Notwithstanding its

statutory and constitutional obligation, the State in the instant

case failea to disclose to the defense this prior sworn statement

of its star witness, Bobby Davis. On that ground, Appellant is

entitled to a new trial. Miller V. Wainwright, - F SUPP. -

(Mem.Op. Case No. 83-849-Civ-T-13)(M.D,Fla. Nov. 13, 1987).

In Miller, the State withheld impeachment and exculpatory

material from the defense. The evidence withheld in Miller was

two police reports; one suggested that the crime was committed at

a time other than that sworn to by the eyewitnesses and the other

repeated a statement by the main eyewitness that she said she

-15-

possibly dreamt the crime. This latter statement was similar to

another statement by the same witness that the defense did have

available to it at trial. Nevertheless, the federal district

court held8

When guilt or innocence may turn on the reliability

of a witness, the state has a duty under Brad to

disclose evidence affecting the credibility-$the

witness. Moore V. Kemp, 809 F.2d 702 (11th Cir. 1987).

The State's case rested almost entirely on the

credibility of the eyewitnesses. The physical evidence

linking Miller and Jent to the crime was negligible.

The Court find6 that the very real threat to the

credibility of one or more of the state's witnesses in

this case is sufficient to undermine the Court's

confidence in the outcome of petitioners' trials.

Moreover, whether the State could attempt to

rehabilitate [the eyewitness'] testimony, information

that one of the State's key witnesses may have dreamed

her testimony is of such an impeaching character that

it requires disclosure under Brady. What weight to

give [the eyewitness'] prior pre-custody statement is a

question for a jury and not this Court.

Mem.Op. at 15.

Similarly, disclosure of the affidavit in this case was

essential and the State's failure to disclose it deprived

Appellant of a fair trial. The testimony of Bobby Davis was the

critical evidence against Appellant, without which Appellant

could not have been convicted in this case. No evidence of a

body was introduced, no gun was introduced, no confession of

Appellant was introduced3 no evidence that Appellant shot James

Savoy was ever introduced against Appellant other than Bobby

Davis' testimony. In view of the critical nature of Davis'

testimony, the prejudice to Appellant by the State's failure to

turn over the affidavit in question is extreme. That affidavit,

when examined in the context of Davis' trial testimony and his

other pre-trial statements, sworn and unsworn, reflects directly

-16-

on Davis' truthfulness and reliability.

As the United States Supreme Court has said,

The jury's estimate of the truthfulness and

reliability of a given witness may well be

determinative of guilt or innocence, and it is upon

such subtle factors as the possible interest of the

witness in testifying falsely that a defendant's life

or liberty may depend.

Napue V. Illinois, 360 U.S. 264, 269 (1959). As that Court noted

in United States v. Bagley, 473 U.S. 667, 676 (1985), impeachment

evidence, such as this affidavit, is indeed evidence favorable to

an accused under Brady ". . . so that, if disclosed and used

effectively, it may make the difference between conviction and

acquittal." Therefore, the Court held in Bagley that where there

is a "reasonable probability" - one that undermines confidence in

the outcome - that if the evidence had been disclosed, the result

of the proceeding would have been different, the failure to

disclose is reversible error.

That reasonable probability is present in this case, as to a

number of issues raised in the affidavit, just as it was found to

be present in Miller.

First, in the affidavit, Davis swore that when he heard from

Bobby Stephens that Savoy was found at the Cricket Club, that he

called Errico and Menillo then. The three of them went to the

club that same night and planned and executed the kidnapping of

Savoy that same night. According to this affidavit and other of

Davis' early statements, the kidnapping of Savoy was accomplished

without any involvement by Appellant.

This, of course, directly contradicted Davis' trial

testimony on a most critical issue: Appellant was, of course,

-17-

. I 8 ,

sentenced to life imprisonment for this kidnapping of Savoy.

Certainly, a sworn inconsistent statement by the Stateus star

witness that established that Appellant was not involved in that

kidnapping would obviously be evidence helpful to the defense.

Second, in his affidavit, Davis swore that Appellant told

him that Savoy stole about $500,000. The amount of money that

Davis said Appellant told him was in the safe Savoy stole became

a critical issue of Davis' credibility. At trial, Davis insisted

that he had always maintained that the safe contained just over

$400,000 (R.949, 1054, 1063, 1069).

There was some contradicted temtimony that Davis previously

told Bobby Stephens and an FBI agent that there was $600,000 in

the safe (R.1657-1658, 1876, 1893, 1916-1917, 2150). However,

that testimony could not be nearly as effective in challenging

Davis' credibility as his own sworn inconsistent statement would

have been if it had been turned over to the defense as mandated

by law. The affidavit would have enhanced the effective cross

examination of Davis on yet a third point. In the affidavit

Davis swore that he, Stephens, Menillo annd Appellant took Savoy

out on the boat. While this was technically consistent with his

trial testimony, it was directly inconsistent with his sworn

testimony before a federal grand jury and with statements he made

on two other occasions as to who was on the boat (R. 1083, 1086-

1087). See Miller, Mem.Op. at 14-15. The affidavit would have

been additional evidence that Bobby Davis would swear to anything

that it was expedient for him to swear to on any given day.

Certainly, this affidavit establishing perjurious statements

-18-

by Davis would have enabled t h e defense to conduct a far more

e f f e c t i v e cross examination of Davis.*2 Without D a V i 8 ' p r i o r

sworn statement, the defense was unable to f u l l y and e f f e c t i v e l y

e s t a b l i s h Davis' motives to l i e and h i s complete lack of

c r e d i b i l i t y . Of course, the defense did argue t h i s point most

ardently and s k i l l f u l l y ; had the defenre had the benefit of t h i s

a f f i d a v i t to prove t h a t Davis committed perjury, t h e jury would

l i k e l y have reached a d i f f e r e n t conclusion.

In Arango V. S t a t e , 497 S0.2d 1161 (Fla.1986), t h i s Court

reversed t h e finding of the t r i a l court and ordered a new t r i a l

because of a similar due process, Brad2 v i o l a t i o n , In Arango, a

pistol was found which supported Arango's claimed defense, but

t h e defense was never advised of its existence. The prosecutor

then vouched for t h e q u a l i t y of h i s evidence and demeaned the

defense i n h i s closing. This Court held t h a t t h e suppressed

evidence was material and t h a t there was LL reasonable p r o b a b i l i t y

t h a t had t h e evidence been disclosed to the defense t h e rerult of

the t r i a l would have been d i f f e r e n t .

Here, too, t h e suppressed evidence war material and, as

shown above, there is a reasonable p r o b a b i l i t y t h a t had the

evidence been disclosed as the law required, t h e result would

have been d i f f e r e n t . Certainly, there is no l e g a l d i s t i n c t i o n i n

2/ Several other statements i n t h e a f f i d a v i t were also

i n c o n s i s t e n t , d i r e c t l y or by implication, w i t h Davis' t r i a l

testimony and would have enabled t h e defense to e f f e c t i v e l y cross

examine Davis i f the a f f i d a v i t had been turned over to them as

required by law. See, e,g. R.3325, paragraph 11 compared to

2046-2047 (re Savoy's attempted escape), and 3325, paragraph 16

compared to 956, 1088 (re Davis' a b i l i t y to pinpoint t h e

location/distance of the boat). See, also, R.3303-3308.

-19-

this regard between physical evidence such as the gun in Arango

and the impeaching affidavit in this case. See, Boshears V.

State, 511 So.2d 721 (Fla.App. l8t DCA 1987); Cipollina V. State,

501 S0.2d 2 ( Fla . App. 2d DCA 1986) ; Giqlio V. United States,

supra, 405 U.S. 150.

As the United State8 Supreme Court noted in Giglio, where,

as here, the reliability of a particular witness may be

determinative of guilt or innocence, the Brady rule applies to

the nondiscloeure of impeaching evidence, to insure a fair trial

through full and effective cross-examination. The sixth

amendment right to confront witnesses contemplates not just

cross-examination, but effective cross-examination where the

parties have all discoverable statements of the witness available

for use in impeaching the witness'credibility. Davis v. Alaska,

415 U.S. 308, 318 (1974).

In the instant case, Raymond Thompson was deprived of a fair

trial. He was denied the opportunity for full, effective cross

examination of the State's critical witness against him by reason

of the State's refusal to obey the discovery requirements of

Florida law and the constitutional requirement of due process.

The failure to turn over the October, 1985, affidavit of Bobby

Davis, which was material and substantially impeached Davis'

credibility, undermines any confidence in the outcome of

Appellant's trial. Therefore, Appellant is entitled to a new

trial.

-20-

POINT I1

THE TRIAL COURT ERRED IN PERMITTING

THE STATE'S WITNESSES TO TESTIFY TO

BAD ACTS OF THE DEFENDANT WHICH MERELY

WENT TO HIS PROPENSITY TO COMMIT A CRIME

It is, of course, improper for a jury to base a guilty

verdict on the conclusion that the defendant probably committed

the crime charged because the evidence showed him to be of bad

character or with a propensity toward crime. Straight V. State,

397 So.2d 903, 908 (Fla.1981); Johnson V. State, 432 So.2d 583

(Fla.App. 4th DCA 1983); Weitz V. State, 510 S0.2d 1060 (Fla.App.

4th DCA 1987). For that reason, evidence of bad acts or criminal

activity which are not charged is inadmissible when its purpose

is to show bad character. Florida Statutes, Section 90.404(2)(a).

In this case, the trial court erroneously permitted several

witnesses to testify to other crimes and bad acts by Appellant.

A. Testimony of Threats to Savoy and His Family.

Among the uncharged bad acts testified to were that threats

were made to various members of the Savoy family, impliedly by

Appellant or at Appellant's behest. See R.914-915, 925, 1230-

1232, 1473, 1476, 1488, 149201494, 1513-1514, 1519. As is

-

obvious from the record, this was not a single, isolated

reference, but a continuing course of testimony, all received

over Appellant's objection. The overwhelmingly prejudicial

nature of this testimony is apparent, yet it served no probative

purpose which outweighed its prejudicial nature.

B. Testimony About Witness Protection Programs.

Nor was the testimony of threats the only bad act testimony

improperly admitted. The trial court also permitted various

-2 1-

witnesses to testify to the fact that Savoy sought to enter the

witness protection program or that the witness himself entered

that protection and relocation program (R.828, 831-833, 990,

1182, 1716). This testimony served no legitimate or probative

purpose other than to improperly suggest to the jurors that

Appellant must be a very frighteningly dangerous man and,

therefore, they should believe that he committed this crime. The

trial court erred in allowing thi8 evidence in over Appellant's

objection.

C. Testimny Regarding Huge Sum8 of Honey.

The State a180 was permitted to introduce, over Appellant's

objection, testimony from several witnesses that they saw

Appellant with huge sums of money (R.891, 168801689, 1703-1706,

1954, 2033). The State argued that it was necessary to introduce

this testimony to show that at the time of the crime Appellant

woulU likely have had $600,000 in a safe for Savoy to steal.

However, that was a fact that was never in issue, tangential to

the real issues in the case, and, obviously, highly prejudicial.

The inescapable conclusion for the jury to reach from this

testimony was that Appellant must be engaged in some illegal

business to generate that kind of money and, therefore, probably

committed this crime as well. Further, this testimony should

have been excluded because there was no attempt by the witnesses

to restrict their testimony to the time when the theft took

place, in or about August, 1981. Rather, over objection,

witnesses were allowed to testify to seeing Appellant with lots

of cash as early as 1978 and as late as 1982. Clearly, this

-22-

. ' , I

testimony was not probative of whether Appellant had cash in

19811 rather, it was highly prejudicial and should have been

excluded .

Even if the testimony concerning how much cash Appellant had

was arguably admissible, the other testimony regarding huge

amounts of money should have been excluded. Over Appellant's

objection, Bobby Davis was allowed to testify that the first

payment he received from Appellant as an employee was $15,000

(R.887) and that Appellant always paid cash for everything, owned

several houses and "all the boats that we used" (R.896). In

addition, Bobby Dania (Tippie) testified that he made several

hundred thousand dollars working for Appellant (R.1718). This

testimony had the unquestionable impact of convincing the jury

that Appellant had committed other crimes and bad acts besides

the crimes charged. This testimony was an open invitation to the

jury to convict Appellant for this crime because he was a

terrible person engaged in lots of other criminal acts.

D. Testimony Concerning Alcohol and Drug Abuse.

The effect of this testimony was further exacerbated by all

the witnesses' testimony concerning alcohol and drug abuse when

they worked for or partied with Appellant, and the guns and other

weapons they kept. -See, R.1101, 1106, 1152, 1197, 1200, 1206-

1207, 1718, 1719, 1955-1958. This testimony, especially when

taken with the testimony of cash and boats indicated to the jury

that Appellant was a big time drug smuggler and impermissibly

allowed the jury to conclude that Appellant probably committed

this crime because that's what drug smugglers do.

-23-

E. Testimony About Other Homicides:

Thir was not the only evidence of uncharged crimes that was

improperly admitted, however. Prior to trial, the state sought

permission to use evidence of two other homicides it alleged

Appellant committed as williaras rule proof. After extensive

argument, the trial court ruled that no such evidence could be

introduced. Each of the cooperating, co-defendant witnesses was

permitted to say, however, that his plea bargain was contingent

on his teetifying truthfully in this case and in other caseec,

without mentioning those caues in detail for Appellant's

involvement in them. While such testimony might be ruled

innocuous, on its own, it becomes more prejudicial in light of

the other evidence of bad acts improperly admitted. Further, the

vague description of "other cases" was improperly detailed by

several witnesraes.

FBI Agent Parrish, who first met Bobby Davis and listened to

hi6 #tory, testified that he told Davis that the FBI doesn't

investigate murders, in the plural (R.1640). In addition, Robert

Tippie (Babby Dania) testified that his plea bargain was based on

hi8 testifying truthfully in this case and in two other homicides

(R.1697) . Further, in the tape of the conversation between

Appellant and Bobby Davis played for the jury, Davis said to

Appellant that police had come to Davis' home asking about the

murders, again the plural (R.2018). The trial court denied

Appellant's notions for mistrial based on this evidence.

However, the court's denial of the mistrial is inexplicable

in view of the fact that it wa8 identical testimony by Agent

-24-

Shomers - testimony concerning homicides, in the plural - that

the court found warranted a mistrial at the first trial. See,

R.752.

-

* * *

When looked at individually and in its totality, the

conclusion is unavoidable that all of this improperly admitted

evidence of uncharged crimes may have predisposed the jury to

find Appellant guilty of the crime charged. The evidence of bad

acts in this case is pervasive, rooted in the prosecution's

admitted belief that it would have been perfectly proper to prove

an entire drug smuggling operation in this case. See, eg,

R.1706.

The State's wishing it so, however, can not make it SO.

This is not a case like Sims V. State, 444 So.28 922 (Fla.),

cert.denied, 104 S.Ct. 3525 (1983), where a vague and isolated

reference by a witness to the defendant's 'mug shot' was held to

be harmless. By contrast, the evidence of bad acts and uncharged

crimes admitted in this case may surely have convinced this jury

that Appellant was very likely guilty of serious, sub8tantia1,

other crimes and, therefore, very likely guilty of this crime as

well. A conviction thus obtained violates Appellant's right to a

fair trial and due process of law, and should be reversed.

-25-

POINT I11

THE TRIAL COURT ERRED IN DENYING

APPELLANT'S MOTION TO DISMISS ON

DOUBLE JEOPARDY GROUNDS ~

The double jeopardy clauses of the United States and Florida

Constitutions protect a defendant's valuable right to have his

trial completed by a particular tribunal. Wade v. Hunter, 336

U.S. 684, 689 (1949). It is for that reason that the double

jeopardy clause bars a retrial when the government intentionally

provokes a request for a mistrial so as to afford the prosecution

a more favorable opportunity to convict the defendant. United

States V. DfFrancesco, 449 U . S . 117 (1980); Divans V. California,

434 U.S. 1303 (1977).

In the present case, at the first trial the State's first

witness was Special Agent David Shomers of the Florida Department

of Law Enforcement, the lead case agent in this case. Although

Shoiaers was instructed to refer only to the Savoy murder case,

and not to any other murders, Shomers disregarded that

instruction and mentioned "homicides" in plural. That deliberate

testimony forced Appellant to move for a mistrial, which was

granted (R.751-752, 3117-3121).

The circumstances surrounding this testimony and mistrial

establish that this was an intentional act by the State in order

to improperly gain an advantage against Appellant once his

defense was made manifest. Shomers is, of course, an experienced

law enforcement officer knowledgeable about this case. Simply

put, Shomers knew better than to have made this kind of "mistake"

unintentionally. In addition, the State made no secret of the

-26-

. I * I

fact that they were using the respite they gained by the

declaration of the mistrial to prepare the case so as to better

meet Appellant's defense (R.753-761, 3121).

Since the state's action intentionally provoked the mistrial

in order to obtain a more favorable opportunity to convict

Appellant, the double jeopardy clauses of the federal and etate

conrtitutions barred retrial of Appellant. Divan8 v. California,

supra . Therefore, the trial court erred in failing to grant

Appellant's notion to di8mi88.

-27-

POINT IV

THE TRIAL COURT WAS WITHOUT

JURISDICTION OVER A HOMICIDE

COMMXTTED ON THE HIGH SEAS

All the evidence at trial showed that this crime was

committed not in Broward County, but on the high seas outside of

Florida's territorial jurisdiction. Therefore, under 18 U.S.C.

Section 7, the federal government had exclusive jurisdiction to

try Appellant for this crime.

Even if Florida had concurrent jurisdiction over this

offense under Section 910.005(2), Florida Statutes (1977), this

court made it clear in Keen V. State, 504 So.2d 396, 399 (Fla.

1987), that the court must properly instruct the jury that it

must find that an essential element of the crime occurred within

Florida in order to sustain a conviction in a case of a homicide

on the high seas.

There is no such clear finding in the instant case. Instead

of the explicit instruction approved in Keen, the trial - court in

this case merely instructed the jury that the State need only

prove, to a reasonable certainty, that the crime was committed in

Broward County, Florida (R. 3150). This instruction was clearly

insufficient under -Keen. It reduced the State's burden

considerably by relieving the State of its obligation to prove

every essential element of the crime beyond a reasonable doubt,

including that some essential element of the crime occurred in

Broward County.

Since this erroneous instruction went to the most

fundamental issues of the court's jurisdiction and the burden of

proof in a criminal case, the error can not be waived or

harmless . -28-

POINT V

THE TRIAL COURT ERRED IN

OVERRIDING THE JURY'S RECOMMENDATION

OF LIFE SENTENCE AND IMPOSING

THE DEATH PENALTY

In Tedder v. State, 322 So.2d 908, 910 (Fla.1975), this

Court set down the standard for reviewing sentences in capital

cases in language that is very apt in this case:

A jury recommendation under our trifurcated death

penalty statute should be given great weight. In order

to sustain a sentence of death following a jury

recommendation of life, the facts suggesting a sentence

of death should be so clear and convincing that

virtually no reasonable person could differ. That is

not the situation here.

On the facts of this case it was improper for the trial

court to override the jury's recommendation of a life sentence.

Where, as here, there is a reasonable basis in the record to

support a jury's recommendation of life, an override is improper.

Any valid, mitigating factors which can be discerned from the

record that may have been the basis for the jury's recommendation

are sufficient. Where the jury could reasonably base its

recommendation on these factors, an override is error. Ferry v.

State, 507 So.2d 1373, 1376 (Fla.1987): Fead v. State, 512 So.2d

176, 178 (Fla.1987).

There was a full sentencing hearing in this case. The

prosecutor was permitted to introduce, over Appellant's

objection, the certified copy of a judgment convicting Appellant

of rape in 1950, 36 years before the sentencing hearing (R.2688,

2699) . The prosecutor introduced no other evidence of

aggravating circumstances.

-29-

$ 1 . A

A. The Evidence in Mitigation

The defense presented a number of witnesses in mitigation.

Dr. Arthur Stillman, a psychiatrist, testified that he examined

Appellant and found him to be suffering organic brain damage as a

result of Appellant's extensive use of cocaine, alcohol and other

drugs over the previous 5 to 10 years (R.2708, 2713). Dr.

Stillman found that Appellant had memory loss; weak

concentration; minimal frustration tolerance; limited, juvenile

insight and judgment; and could not reason abstractly (R.2709-

2712). In all, Dr. Stillman concluded, Appellant's capacity to

appreciate the criminality of his conduct at the time of the

crime was substantially impaired. Appellant suffered from

paranoidal grandiosity, extreme stress which led to two serious

heart reactions, and, in March, 1982, was living and acting under

severe mental and emotional disturbance (R.2715-2716, 2719).

The evidence of Dr. Stillman alone was sufficient to

reasonably be believed by the jury and to be the basis for the

jury's recommendation of life. However, there was even more

evidence presented in mitigation on which the jury could have,

and did, reasonably rely in recommending a life sentence.

Appellant's aged mother and father testified to how

Appellant went to work as a youngster to help support them and

their younger children during the Depression (R.2781, 2797).

They both also told the jury about their grandson, Charlie Boy's,

death, and how it devastated Appellant, causing him to leave his

life in Florida and move to his parents in Illinois for comfort

(R.2782, 2798).

-30-

In addition, two of Appellant's sisters testified that

Charlie Boy was Appellant's life and that he was devastated by

the child's death. They both were aware that Appellannt had a

drinking and drug problem; they discovered it in 1981 and it was

exacerbated by Charlie's death (R.2826-2827, 2840-2842). Both

sisters fear for their parents and for Appellant's stepson, Joey,

if Appellant were executed (R.2827-2828, 2840-2841).

Ray Thompson's stepson, Joseph Faliodice, also testified.

He was 16 years old at the time and said that Ray raised him the

past 14 years and was the only dad he ever knew. Joey was home

with Ray when they heard that someone was hit by a car down the

street. Together, they went to see the accident and found

Charlie, dead. Joey said that his dad got hysterical and was

never the same again (R. 2812-2815, 2818).

Joey, who now lives with Appellant's brother, was vaguely

aware that his dad had a cocaine habit before Charlie died,

though Appellant tried to hide it from Joey. However, after

Charlie died, Joey was sure that Ray had an acute drug problem

(R.2817-2818, 2819) .

On this record, then, both statutory and non-statutory

mitigating factors are present. Under Florida Statute Section

921.141 the evidence in the guilt and penalty phases showed that:

First, the victim, James Savoy, was a participant in the

Appellant's conduct in that his theft of Appellant's $600,000 set

all the events in motion. Savoy was not an innocent victim, as

were the victims so thoroughly brutalized in Wasko V. State, 505

So.2d 1314 (Fla.1987); Hansbrough v. State, 509 So.2d 1081

-3 1-

(Fla.1987); Amazon V. State, 487 So.2d 8 (Fla.1986)), and other

cases. Yet in each of those cases, this Court reversed the trial

judge's override of the jury's recommendation of life, and should

do so in this case.

Second, Appellant was under the influence of extreme mental

or emotional disturbance, was acting under duress, and, his

ability to appreciate the criminality of his conduct was

substantially impaired, all due to his drug and medical history,

according to Dr. Stillman. As this Court noted in Fead V. State,

512 So.2d 176, 178 (Fla.1987):

This Court frequently has reversed jury overrides

where the jury could have found alcohol or drug abuse

as a mitigating circumstance. Huddleston V. State, 475

So.2d 204, 206 (Fla.1985); Cannady V. State, 427 So.2d

723, 731 (Fla.1983); Phippen V. State, 389 So.2d 991,

14(Fla.1977). In Amazon V. State, 487 So.2d 8 (Fla.),

288 (1986), for instance, we held improper an override

993 (Fla.1980); Buckrem V. State, 355 S0.2d 111, 113-

cert.denied, U . S . - 107 Sect. 314, 93 L.Ed.2d

where, among other mitigating factors, there was 'some

inconclusive evidence that [appellant] had taken drugs

the night of the murders' along with 'stonger' evidence

of a drug abuse problem.

Here, too, there was just that kind of evidence that

Appellant had a serious drug problem at the time of the crime.

Appellant told Dr. Stillman that he was using the enormous amount

of at least one ounce of cocaine every two weeks, together with

marijuana, quaaludes and ten to twenty drinks of alcohol every

day (R.2708-2709). And at the guilt phase, both Bobby Stephens

and Bobby Davis testified to their own and to Appellant's drug

and alcohol abuse.

Thus, the jury could have reasonably concluded that

Appellant acted under duress, extreme emotional or mental

-32-

. ' I ,

disturbance, or was substantially impaired in his ability to

recognize the criminality of his conduct and the trial judge's

override of their recommendation was improper.

A third statutory mitigating factor present on this record

was Appellant's age at the time of the crime. While the judge

refused to consider this as a statutory factor, believing that

the statute was meant to apply only to juveniles or the very

elderly, the judge did allow this to be argued to the jury. See,

Huddleston V. State, 475 So.2d 204, 206 (Fla.1985). Therefore,

whether it is a statutory or non-statutory mitigating factor,

this jury could have weighed the evidence and reasonably

concluded that Appellant's age of fifty-two was a mitigating

circumstance. This is especially true in this case in light of

Dr. Stillman's evidence that due to his prior drug abuse and his

heart condition Appellant's life span has been drastically

shortened and he can be expected to live only nine or ten more

years (R.2720) .

Other, non-statutory mitigating factors established in the

record were Appellant's loving and loved status in his family.

As a child growing up in the Depression Appellant did without

education to help feed his parents and brothers. As an adult he

helped to care for his younger siblings and aging parents. Most

of all, Appellant was a devoted loving parent to his son and

stepson and suffered the incomparable tragedy of losing his young

son. These are certainly mitigating factors that the jury was

entitled to consider. This jury weighed this evidence, together

with all the other evidence, and it could have reasonably been

-33-

I ' , I

the basis for its recommendation of life. See, Thompson V.

State, 456 So.2d 444 (Fla.1984); Fead V. State, 512 So.2d 176,

179 (Fla.1987). That being the case, the trial judge's override

was improper.

Another non-statutory mitigating factor in the record is the

disparity of the death penalty to the sentences received by the

co-defendants in this case. Bobby Davis received a ten year

sentence for murder, Bobby Stephens received a fifteen year

sentence for murder and Bobby Sheer and Bobby Tippie both

received full immunity. It is, of course, proper for the jury to

consider the substantial inequality in the sentences received by

the co-defendants, compared to Appellant facing the death

penalty. Thus, sentencing inequality is a legitimate basis for a

jury to consider. Since this jury undoubtedly considered that in

coming to its recommendation of life, that recommendation should

not have been overridden. Thompson V. State, 456 So.2d 444

(Fla.1984); Brookinqs V. State, 495 So.2d 135, 143 (Fla.1986).

Closely related to this factor of sentencing inequality, is

the issue of the respective roles of the co-defendants in a

homicide. The only testimony that Appellant was the shooter in

this case came from Bobby Davis; Bobby Stephens, on the other

hand, swore that he only saw the gun in Bobby Davis' hands

immediately before and immediately after the shooting, and could

not say who shot Savoy.

Certainly, it is perfectly appropriate for a jury to

question the relative roles of the co-defendants. It is

reasonable to conclude that this jury arrived at the

-34-

recornmendation of life in part based on the conflicting,

inconclusive evidence of who the shooter was. See, Malloy v.

State, 382 So.2d 1190 (Fla.1979); Wasko V. State, 505 So.2d 1314,

1318 (Fla.1987) .

On this record, then there was more than ample evidence of

statutory and non-statutory mitigatinng factors on which the jury

reasonably based its decision to recommend a life sentence. The

trial judge should not have overridden that recommendation.

B. The Aggravatinq Circumstances

The judge's sentencing order in support of his override

relied on five aggravating factors. First, the trial judge

relied on Appellant's 1950 Illinois conviction for rape, for

which Appellant received a three year prison term (R.3340). This

so-called aggravating factor, a man's conduct 36 years earlier,

ought not serve as a basis for his execution when he is well over

50 years old. That conviction is too remote, as a matter of law

and propriety, to justify the electrocution of Appellant.

The second, fourth and fifth aggravating factors outlined by

the trial judge are duplicative in that the judge's conclusions

rest on the same facts. Those factors asserted by the trial

judge were that the crime was committed while Appellant was

engaged in the commission of a kidnapping, the crime was

especially heinous, atrocious or cruel, and that the crime was

committed in a cold, calculated and premeditated manner without

any pretense of moral or legal justification (R.3341-3343). The

facts relied on by the trial judge for finding each of these

factors were that Savoy knew he was in trouble as soon as he

-35-

I ' , I

stole Appellant's money and so feared for his life from the time

of his theft, that Appellant let the word out on the street that

he was looking for Savoy, that Appellant kidnapped Savoy and held

him overnight, that Appellant told Savoy he would be killed while

questioning him, and, that Appellant shot Savoy in the head and

Davis threw him overboard.*3 Of course, a trial judge may not

use the same essential facts to support more than one aggravating

circumstance. Riley V. State, 366 So.2d 19, 21 (Fla.1978); see

also, Thomas V. State, 456 So.2d 454, 459 (Fla.1984).

The third aggravating factor asserted by the trial judge was

that the crime was committed for pecuniary gain. This

aggravating factor is simply not supported by the record.

Aggravating circumstances must, of course, be proven beyond a

reasonable doubt. Williams V. State, 386 So.2d 538 (Fla.1980);

Parker V. State, 458 So.2d 750 (Fla.1984). In this case all the

witnesses swore that Appellant wanted revenge; Bobby Tippie

testified, in exchange for full immunity, that Appellant said, "I

don't give a shit about the money. I just want the son of a

bitch dead", when Tippie asked Appellant if he thought he'd get

his stolen money back (R.1691).

The evidence in the guilt and sentencing phases simply did

not establish that the crime was committed for pecuniary gain.

In Phippen v. State, 389 So.2d 991 (Fla. 1980), this Court

3/ We cannot know from the general verdict if the jury found

all the same facts to be true. The jury may have convicted

Appellant on the felony murder theory as an a
 
Why is Nick Carraway made the narrator?

What kind of relationship exists between Nick and the Buchanans?

Why does Daisy always speak in such exaggerated phrases?

What is the significance of Tom’s reference to the book he is reading?

Why does Daisy hope her child will be a beautiful fool?

Why does Nick feel that Daisy is trying to show off her cynicism?

Why does Daisy describe her youth as a “white girlhood”?

Why does Gatsby reach out to the water?

What color was hinted at, at the end of the chapter? What does it signify?

Why is Wilson covered with dust from the ashes?

Why does Myrtle Wilson behave with such hauteur (look up this word), both

toward her husband and in the city apartment?

Why does Nick see himself as both on the outside and inside of the apartment?

What is ironic about Myrtle saying “You can’t live forever”?

What two facets of Tom’s personality are revealed when he breaks Myrtle’s nose?

15. What is revealed when Nick says that people aren’t actually invited to Gatsby’s

parties, that they just sort of go there?

Why is Jordan Baker again described as contemptuous? What does “contemptuous” mean?

What is the significance of the “owl-eyed’ man?

Why does the owl-eye man describe Gatsby as a real Belasco?

What is the contrast between Gatsby and his party?

What is significant in Jordan’s lies?

Why is the catalog of Gatsby’s guests included?

What does Gatsby call Nick ”old sport”?

Why does Wolfsheim mourn the passing of the Metropole?

What is ironic about Gatsby’s appraisal of Jordan?

What is significant in Jordan’s remark that Daisy’s voice has an amorous tinge?

Why does Gatsby want Daisy to see his house?

Why is Gatsby dressed in a gold tie and silver shirt?

Why does Nick reject Gatsby’s offer of business?

What is significant about Nick’s embarrassment during the tea, and the fact that he leaves and walks around the house?

What hint is given in the story of how Gatsby’s house was built?

What is ironic about the cottage owners’ refusal to put thatched roofs on their homes?

Does Gatsby really believe, as he tells Daisy, that his house is always full of interesting, famous people?

33. What is significant about Klipsringer’s song? What is it about?
 
1. Hypothèse opérationnelle de notre expérience

Plan de recherche voulant vérifier l’effet combiné du temps de dégustation (5, 10, 15 minutes), de l’esthétique du contenant (beau ou ordinaire) et du prix indiqué sur chacun des contenant (0.99$ et 2.99$) sur l’appréciation du jus.

Groupe Nombre

de sujets Temps de

dégustation

Taux d’appréciation du jus selon l’esthétique du contenant et le prix.

Beau

contenant,

2.99$

Beau

contenant,

0.99$

Contenant

ordinaire,

2.99$

Contenant

ordinaire,

0.99$

E1

E2

E3 20

20

20

5 minutes

10 minutes

15 minutes







2. À propos de notre hypothèse

La première variable indépendante est l’esthétique du contenant et cette variable est provoquée par les expérimentateurs. Elle est qualitative et elle est à deux niveaux, soient beau et ordinaire. La deuxième variable indépendante est le prix indiqué sur chacun des contenant et cette variable est, elle aussi, provoquée par les expérimentateurs. Elle est également qualitative et elle est à deux niveaux, soient le prix de 2.99$ et celui de 0.99$. La variable dépendante et invoquée puisque les expérimentateurs n’ont aucun contrôle sur elle. Elle est, quant à elle, quantitative puisqu’on vérifie le taux d’appréciation et elle est à quatre niveaux, soient les répondants préfère le jus dans le beau contenant à 2.99$, celui dans le beau contenant à 0.99$, celui dans le contenant ordinaire à 2.99$ ou encore celui dans le contenant ordinaire à 0.99$. Il y a lien de covariance puisque le beau contenant et le prix plus élevé influenceront peut-être les répondants.

3. Le plan de recherche

Le plan de notre expérimentation sera expérimental, parce que nous voulons conclure à un lien de causalité entre l’emballage d’un jus et l’appréciation des gens à son égard. Ensuite, nous, les chercheurs, avons choisi les participants par un procédé d’échantillonnage probabiliste, ce qui signifie que nous appliquons la loi du hasard pour déterminer les éléments de notre échantillon. Ainsi, notre échantillon sera représentatif. Ensuite, il s’agit d’un plan simple à groupes indépendants car la mesure de la variable indépendante (emballage du jus) est faite une seule fois par les groupes expérimentaux. Ainsi, on peut comparer le niveau d’appréciation du même jus mais selon 2 types d’emballages différents.

Groupes



Variable indépendante

( Emballage du jus )

Variable dépendante

( appréciation du jus )

Groupe expérimental #1 Emballage populaire (X1) Y1

Groupe expérimental #2 Emballage non-connu (X2) Y2

4. L’échantillonnage

Pour ce qui est de notre échantillon, quelques points peuvent la définir. Par exemple, notre population comprend tout les personnes du Cégep de Sainte-Foy âgé entre 17 et 100 ans. Elle inclue tous les types de programmes et d’étudiants. En ce qui concerne les caractéristiques critiques générales, il s’agit de l’âge, qui doit être comprise en 17 et 100 ans et le sexe, qui peut être masculin ou féminin. Ensuite, plus spécifiquement, il peut s’agir de personnes consommant principalement du jus comme breuvage durant une journée et de gens intéressés par les différents type de publicités qui nous entourent. Pour continuer, la taille de notre échantillon doit être moyennement grande car comme nous sommes que 3, nous ne disposons pas d’assez de temps pour s’occuper d’une trop grande population. De plus, comme il s’agit de goûter du jus, nous ne voulons pas dépenser une fortune dans l’achat de notre matériel. Finalement, il sera quand même facile de joindre notre population, étant donné que notre lieu expérimental est le Cégep.

Comme nous l’avons mentionné plus haut, notre procédure d’échantillonnage est probabiliste car nous appliquons la loi du hasard dans le choix des participants et des groupes. Ainsi, nous pourrons généraliser nos résultats avec notre population entière. Chaque éléments de notre population a une chance connue et non nulle d’être choisi. Le choix des participants se fait au tirage au sort (n’importe qui peut participer !!). Il est donc question d’un échantillonnage aléatoire simple parce que tous les éléments de la population ont une chance égale et indépendante d’être choisis pour former l’échantillon.

5. Mesures de contrôle au regard des biais de l’expérimentateur

Afin d’effectuer une expérimentation dans les règles de l’art, nous devons avoir certaines précautions. Par exemple, nous ne devons pas mesurer les variables dans le sens de notre hypothèse. Si nous croyons que l’emballage des jus peut influencer sur l’appréciation, nous ne devons pas inciter les gens à porter attention à l’emballage, si pour certain ça n’a aucune importance. Ensuite, nous devons faire attention à nos paroles ou à nos gestes, qui pourrait influencer la pensée des participants pour contrer l’effet Pygmalion. Finalement, nous devons faire en sorte que notre attitude soit professionnelle (aucune familiarité et complicité avec les participants), pour contrer l’effet des caractéristiques personnelles.

6. Méthodes de contrôle au regard des facteurs parasites et des biais des participants

Dans cette expérimentation, il est nécessaire de garantir que seule la variable indépendante provoquée affecte la variable dépendante. Pour mettre en place ces moyens de contrôle nécessaires, nous devons donc choisir les variables à contrôler et choisir des stratégies pour le faire.

Les événements qui risquent d’affecter les variables étudiées par la recherche, les facteurs parasites, doivent tout d’abord être déterminées et ensuite des moyens de contrôle doivent être adoptés pour annuler les effets qu’ils pourraient avoir. Dans notre expérimentation, plusieurs facteurs parasites pourraient affecter l’expérimentation.

Premièrement, le contexte, c’est-à-dire tous les éléments physiques et sociaux présents au moment de la collecte de données, doit être identique pour chaque participant. Alors nous devons prévoir un même local, isolé et sans bruit, un même moment de la journée, pour éviter des variations de fatigue ou de faim, un matériel identique dans tous ses aspects, car l’apparence affecte la prédisposition à collaborer, une présentation identique du but de la recherche, car la personnalité du chercheur affecte elle aussi la disposition à collaborer, et finalement, des consignes identiques, pour que tous comprennent exactement la même chose, si elles ne sont pas lues par les participants, le chercheur doit les avoir enregistrées ou les lire lui-même à haute voix.

Ensuite, concernant le biais des participants, nous devons minimiser cette tendance des participants à réagir émotivement au fait de participer à une recherche, ce qui modifie leurs comportements spontanés. Ceci peut être contré en trompant les participants sur le but de la recherche, toute en respectant les règles d’éthique, en formulant des questions d’une manière neutre, ou en insistant sur l’anonymat des participants, et ceci pour minimiser l’impact de la désirabilité sociale du répondant. Ensuite, le procédé du simple aveugle doit être appliqué pour contrer l’impact de la connaissance de la modalité de la variable indépendante. Ce procédé assure que les participants ne font pas partie du groupe expérimental.

6. Règles d’éthique

Avant, pendant et après la collecte des données, notre recherche vise à faire respecter les règles d’éthique de recherche en science humaines.

Avant la collecte, les candidats seront informés de tous les aspects du déroulement de la collecte de données qui pourraient les amener à refuser de participer. Leurs questions seront répondues de façon positive. Ensuite, les participants pourront donner un consentement éclairé de façon libre et volontaire. Nous informerons aussi les participants qu’ils sont libres de refuser de participer, et que cette liberté est valable à n’importe quel moment de la recherche.

Pendant la collecte, l’intégrité physique et morale des participants sera évidemment protégée, et l’intimité également : la vie privée des participants n’est pas invoquée lors de notre expérimentation. Nous manifesterons certains égards, des marques de considération aux participants, car ils sont après tout des être humains.

Après la collecte, l’anonymat des participants sera protégée, ainsi que la confidentialité, et aucun participant n’aura subi de préjudices.

ANNEXE

8. Plan de recherche

Groupe Nombre

de sujets Temps de

dégustation

Taux d’appréciation du jus selon l’esthétique du contenant et le prix.

Beau

contenant,

2.99$

Beau

contenant,

0.99$

Contenant

ordinaire,

2.99$

Contenant

ordinaire,

0.99$

E1

E2

E3 20

20

20

5 minutes

10 minutes

15 minutes







E4

E5

E6 20

20

20

5 minutes

10 minutes

15 minutes







E7

E8

E9 20

20

20

5 minutes

10 minutes

15 minutes







E10

E11

E12 20

20

20

5 minutes

10 minutes

15 minutes
 
yea it is but ski season is basically over....and NS does the most random shit ni the off season so why not?
 
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