Florida, B, 1891-1995, Undated

4) ¥On Friday, the U.S. “Supremeé
; Court upheld a ruling by.a lower:

: iB rtolotti. ROE BE
44 he three cases held: p|

«4°; tion, the governor's: ia! sec
eq. tary, Jon Peck, said Satur A A
et sea: has Teall y. pen

-¥) pote oe | at least {hex cot
4} treate

mn, aoa Peck gaida
yh eGo artinez, 2 strong
“cate jof the de

a: clearing the ae =

By G chain

P STARKE, Fla! ecu-
tion.of a convicted ciller. pnould-*
~~ “weeks of controversy. over
hether Florida’s electric chair
S$ a valid means of execution ora~
orture device.\as' defense
os neys. claimed the Age
*Flprida should t now ‘be able to
esume carrying out its capital

‘punishment statute,” Gov.. Bob

' “Martinez said after Anthony Ber-
| tolotti was pronounced de

yeyening. | :

he people | of. Fl

ithat criminals who s

J total: ‘disregard for human
will indeed be called upon’ “3
the ultimate penalty for.

During the May 4’exec
esse Joseph ‘Taf

¢ Dun the governor said

head and smoke filled the execu.
tion chamber. Tafero was finally:

|  plectrltty.
Attorneys for: three: con- .
demned inmates won indefinite —
stays om the 11th U.S. Circuit:
Courtiof Appeals in Atlanta with ©
pe euntents that the electric ch.
f _ functioning, roperly,
| result, Gov. Marti

“amount of electricity thr
mate’s body. f
Prison officials said a ste
ed synthetic sponge’ “contac
ped” for the first and only time
‘in the ‘Tafero execution, cau
es to rise from his:head.

4 court: pat the chair’s ;2,000-vol:
- charge’ mia, ot se:
Spintegs: i terminatin f" life,” -
ending the legal. al 2

flames and, 'F
‘Sparks shot fromthe: inmates! 7

_ declared dead afte three jolts ;

4 Noncy Norelli,

ee Aesedalt Press

a

the only opponent of the death penalty to stand

vigil outside Florida State. Prison cries moments alter nthony| |
Bertolotti was executed Frida

th circuit would ‘be

liest to result in thane ec

nm those other> thes {be

sear

gratifying that nit ‘ourts | |.
decal ded Florida's: “electric.
pee | n fact work as it ig

to," the governor saidis;


Killer, B3"T,

Yele TU 22
Executed in Florida

STARKE, Fla:, July 27 (AP) — A 38-
year-old man convicted of stabbing,
raping and robbing a woman in 1983
was executed today after the United
States Supreme Court rejected his as-
sertions that Florida’s electric chair
was not working properly.

The execution of Anthony Bertolotti
‘was carried out at 7:07 P.M., appar-
ently without problems, the Governor’s
office said.

The Supreme Court, agreeing with
lower courts that the chair was work-
ing properly, rejected Mr. Bertolotti’s
last appeal about 30 minutes before the
execution.

The Court upheld a ruling earlier in
the day by a three-judge panel of the
United States Court of Appeals for the
llth Circuit, in Atlanta, concurring
with a decision earlier this week by an
Orlando judge that the chair’s 2,000
volts “‘are sufficient to cause painless
termination of life.”

The Federal court delayed execu-

tions for five other Florida inmates be-
cause of assertions that tne chair had

malfunctioned, resulting in.a torturous
death for a convict.

Appeal rejected; Florida killer. dies
STARKE, Fla. — A killer who stabbed,

Their contentions stemmed from the
botched execution May 4 of Jesse
Tafero in which fire, smoke and sparks
had spewed from his head and in which
three surges of power had to be used
before he was declared dead.

Earlier this week, prison officials
and an Auburn University expert con-
ducted a test of the chair and concluded
that it was working properly. They said
a synthetic sponge, used for the first
time in the Tafero execution, had
caused flames to rise from his head.

Mr. Bertolotti was sentenced to die
for the Sept. 27, 1983, murder of Carol
Ward. She: was working in her yard in
Orange County when Mr. Bertolotti ap-
proached her and asked to use the tele-
phone, and she let him in.

He found a knife and robbed her of

$30, then became angry and stabbed.
her repeatedly until the knife broke. He |

found another knife and stabbed her
until she died. Ms. Ward also was
raped. Mr. Bertolotti was convicted
March 31, 1984.

He was the 23d convict to die in the
chair since capital punishment was re-
sumed in Florida in 1979.

raped and robbed a woman was executed |
Friday evening after the-U.S. Supreme Court
rejected claims that Florida’s electric chair
isn’t working properly. |
The: execution of Anthony Bertolotti, 38,
was carried out after the Supreme Court,
agreeing with lower courts that the chair is |

working properly, rejected Bertolotti’s last
appeal about 30 minutes before he died at
6:07 p.m. CDT.

A federal circuit court has delayed execu-
tions for three other Florida inmates because
of claims that the chair is a malfunctioning
torture device that burns its victims alive.

& DALLAS
weg, TIMES

HERALD
Saél E, MoM ae ,
AL TIGL V0
FC

os

+ tagiek Rise gdh. BE

O Killer.executed: .: »

‘“STARKE, Fla. — A killer who stabb-

ed, raped and robbed a woman was ex-
~ ecuted Friday.‘evening after ‘the U.S.
‘Supreme Court rejected’ claims that
Florida’s electric chair wasn’t working

a rly. op ef 3

e execution of Anthony Bertolotti,
38, was carried out without any sign of
problems, the governor's office said.

oF Mee Oh SP Pe oe Pee ote


we 4 4S

By Bob Levenson. us

OF-THE SENTINEL STAFF

STARKE'— Anthony Bertolotti; deve
who stabbed an Orlando woman.
* ‘So viciously. he broke a knife in

her chest. and later wrote letters
saying he: had no regrets, went to.
his death calmly in Florida’s elec-

* tric chair Friday night. - .

The execution at 7:07 p.m. came: :
six years-and four months after a -
jury convicted Bertolotti of the.

Sept. 27, 1983, murder of Carol’
Miller Ward and seven minutes
after the last of two court-ordered
stays this week expired. -

The stays had been. granted to
give the courts more time to study
whether the electric chair was
malfunctioning.

Shortly after 1 p.m. Friday the
11th U.S. Circuit Court of Appeals
in Atlanta turned down Bertolot-
ti’s last appeal, The court.got a re-
port from state officials that said
they had tested the chair Monday
and it worked fine.

That contention was born out
Friday as the execution went off
without a hitch. More than 2,000
volts of electricity flowed through
Bertolotti’s body for two minutes
before the current was turned off

~ at 7:07.

After his conviction, the 38-year-
old murderer had taunted state of-
ficials in letters saying he wasn’t

sorry he had killed Ward and.

would win his appeals.
“Maybe Carol Ward should have

- locked her damn door,” Bertolotti
-wrote.an assistant attorney gener’ —

al fighting his appeal in 1985. .

- really did her a favor by taking
~ her lige, don’t you think so? Watch.
.. mewinthisappeal-> core
~“Th'1988 he wrote’ to’a state: in-

PEUTIS £6 , Prkasd
T-2KF/SIFO

Say = Se tte ee Se

Anthony Bertolotti had a few final
words but didn’t express regret.

vestigator preparing for a clemen-
cy hearing: “I also have no regrets
or sorrows for the murder of Carol
Ward, but i do regret tiiat her hus-
band William was not home, for if
he had been, then he’d be resting
along side her right now!!”

Friday Bertolotti was subdued.

Prison spokesman Bob Macas-
ter said Bertolotti “got very quiet
— I would say somber is the
word” after prison officials told
him of the decision by the 11th
Circuit judges.

Bertolotti, his eyes darting

around the room, looked nervous
_as he was led into the death cham-
ber and strapped into the 67-ycar-
old wooden chair. He looked aown
at prison workers as they buckled
straps around his chest, arms,
hands and legs, occasionally look-
ing up at Jerome Nickerson, one

of his lawyers. Nickerson was

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Continued from page 1A:
chamber just: before 7 p.m. His eyes:
were wide with fear, he shook and
his breathing was heavy. After five
corrections. officials strapped him
into the chair, he looked through the-
Plexiglas, wall separating him from
the 41 execution witnesses and made
a final statement:. _

“T would like to say I leave with.
- pace’ and love in my heart’— no
animosity,” he said. “And: to those

that I love; be strong. and kacw that

God is with them:

As prison officials tightly strapped.
Bertolotti’s. mouth, the condemned.
man gave the thumbs-up signab.

Florida State Prison Maintenance
Chief Ron Thornton and. other. core
rections. officials, inside the death
chamber: took longer than usual —
five minutes — to prepare Bertolotti
for execution once he was strapped
into the chair. They paid scrupulous
attention to the fastening of elec.
trodes to Bertolotti’s lower right leg,
the insertion of a large, natural
Sponge into the chair’s headpiece,
and the fastening of electrodes from
the headpiece to the power source..

The DOC has maintained that hu-
man error flawed: Tafero’s
execution; that an artificial sponge
inserted into Tafero’s headpiece in-
stead of the proper natural fiber type.
caught fire, causing flames and
smoke to fly from his head. Tafero's
body also moved and he appeared to
breathe during his electrocution.

DOC spokesman Bob Macmaster
said Friday night officials were be-
ing especially careful to ensure the
Proper carrying out of Bertolotti’s
execution.

“I would say that there is more
concern being taken ..: they’re just
uoubie-checking everything,”’
Macmaster said before the execu-
tion. ‘‘They’re using extra caution to
make sure all procedures are fol-
lowed to the letter.”

Afterward, he said that concerns
about the proper functioning of Flor-
ida’s electric chair should be quelled
by Bertolotti’s execution.

“AS we said all along, the only
problem with the chair was the
sponge,” he said. “If there wag any
controversy, any questions, those
certainly have been answered.”

Since Tafero’s electrocution, five
condemned murderers have been
spared within hours. of execution
while courts considered cruel and
unusual punishment issues raised by
defense attorneys, who centended a
broken electrode in the chair caused

Gainesville Sury Saturday, Jk 28-1990 —

— a ee As !

Following the execution of Anthony Bertolott Friday evening,
Norellt wipes tears from ber eyes. While Norelli stood alone in

Porters turned out to applaud Bertolottt’s execution...

Tafero’s fiery death. i
But Friday afternoon, the U.S. 11th

Circuit Court of Appeals in Atfinta’

ruled that the chair could be used.
State officials this week presented
evidence to that court after Martinez
called for an independent test of the
chair, and experts found it to he

functioning properly. Just a halt

hour before -Bertolotti’s death, the
U.S. Supreme Court refused to
intervene,

Bertolotti, who spent less time on
Death Row than most executed in-

mates, was sentenced to death in:

April 1984 for the 1983 murder of
Carol Ward in Orange County.

On the morning of Sept. 27, 1983,
Ward was home alone and her hus-
band at work when Bertolotti
approached her in her yard and

_ asked to use the telephone. Ward let

Bertolotti into:her home; where he

armed ‘himself with’ a ‘krife and.

robbed her of $30. He went back into
the house searching for more money
and became.angry:when ‘Ward tried
to tal him into putting. down the
knife, so OS se

Bertolotti. began stabbing Ward
and when his knife broke, he found
another and continued to stab her
until she died, leaving the second
knife stuck in her body. At some
point, he removed her clothes and
raped her. Ultimately, Ward was

Stabhed li times.in tho: shest-end

abdomen.

Bertolotti wrote several letters to
prosecutors after his conviction,
showing no remorse for his crime.

“T have no regrets or sorrows for
the murder of Carol Ward,” he
wrote. She “should have locked her
damn door. I really did a favor by
taking her life, don’t you think so?”

A lone death penalty protester
Stood across from the prison Friday
night, while about 10 death penalty
Supporters turned out to applaud
Bertolotti’s execution.

Sheila Lee of Starke, who has at-
tended all 23 executions since that of
John Spenkelink in 1979, when the

death penalty was reinstated in Flor-

ida, said'she believes in an eye for an

eye,-and that the only thing wrong’

with the death penalty is that it takes

too long to administer.

“They deserve it because they
took a life,” Lee said. “I think they've
earned that right.” .

University of Florida sociology
Professor Michael Radelet, an Oppo-
nent of capital punishment, sajd
Pildey Right UNE the ekeCuon tigi
he and other opponents had not ex-
pected the federal courts to rule on
the cruel and unusual punishment is-
sue So soon. .

“People expected consistency in
the courts — they expected a Stay,”
he said. He added that the cruel and —
unusual punishment Issue should not
be based solely on the functioning of
the chair.

“The cruelty of the death penalty
is not in the inmate’s last 10 minutes
— it's in the last 10 years in a cage;
the last 10 years that the inmate and
his loved ones go through.”

Bertolotti was the 220th man exe-
cuted in Florida since the oak
electric chair was built in 1923. Fri- -

‘day’s federal ruling on the cruel and

unusual! punishment issue is expect:
ed to speed up future appeals in the.

State,

Ppa ed Saad

226 86 SOUTHERN REPORTER (Fla.

“Tf you find that the defendants, at or about
the time the charge contained in the indictment
was preferred against them, fled to another
place, and that such flight was induced by the
charge, you may consider such flight in de-
termining the guilt or innocence of the de-
fendants. The fact of flight is a circumstance
to be considered by the jury, as tending to in-
crease the probability of the defendant being
the guilty person. It does not give rise to a
legal presumption, but he may rebut any in-
ference which may be drawn from such flight
by proper testimony which may tend to ex-
plain the same.”

The flight of a person accused of crime
raises no presumption of guilt, but is a cir-
cumstance that goes to the jury, to be con-
sidered by them with all the other testimony
and circumstances, and given such weight as
the jury may determine it entitled to. The
rule is that, when a suspected person in any
manner endeavors to escape, or evade a
threatened prosecution, by flight, conceal-
ment, resistance to a lawful arrest, or other
ex post facto indication of a desire to evade
prosecution, such fact may be shown in evi-
dence as one of a series of circumstances
from which guilt may be inferred. Whart.
Crim, Ey. (9th Ed.) § 750, and citations;
Carr y. State, 45 Fla. 11, text 16, 34 South.
892.

The fourth and fifth assignments complain
of the refusal of the judge to give charges up-
on circumstantial evidence. From our view
of this case the state relied, not only upon
circumstances, but upon alleged confessions,
and it would not have been error for the
judge to have failed or refused to have given
any charge upon circumstantial evidence ;
but the judge did, in the charge given upon
his own motion, fully and correctly give in
charge the law of circumstantial evidence,
and it was not error to refuse additional
charges, when the substance of such request-
ed charges had already been given.

“Tt is not error to refuse to give instructions
that have already been given substantially,
though couched in different language.” Higgin-
botham v. State, 42 Fla. 573, 29 South. 410, 89
Am. St. Rep. 237.

The sixth assignment of error is that the
court erred in refusing to give the following
charge, requested by the defendants:

“Gentlemen of the jury, this has been and is a
very notorious case, and there has been more or
less excitement over it, and that feeling may
possibly have crept into the trial to some ex-
tent. I am not saying that it has, but for fear
that it has, and in an abundance of caution,
that nothing but justice may be done, I deem it
my duty to instruct you and caution you against
convicting the defendants, or either of them,
through prejudice of witness who may have tes-
tified in this case, or upon insufficient evidence,
and to caution you that in your delibera-
tions you should not be influenced one whit by

what is commonly called public sentiment, nor
should you be influenced by any act or actions
of any oflicer or officers, if there be such act or
acts, that appear to be hostile to the defend-
ants, or either of them. In other words, you
must consider the evidence that has been given
you on the witness stand, and that alone, in ar-
riving at your verdict,”

The court of its own motion had given the
following charge:

“A fair and impartial trial is absolutely es-
sential to the due and proper administration of
justice, and it is of prime importance that this
truth be constantly borne in mind both by
courts and juries. If the courts are to retain
the respect and the confidence of the people, and
properly perform the important duties and ex-
ercise the great powers invested in them by the
Constitution, in accordance with its spirit and
purpose, and carry out and perform the objects
of their creation, they must obey the constitu-
tional command respecting fair and impartial
trials, and give to every case submitted to them
for decision due, careful; and conscientious con-
sideration, basing their judgment upon sworn,
legal, and credible evidence, uninfluenced by
other extraneous considerations. In the ad-
ministration of justice, juries are intrusted with
functions of supreme importance. They con-
sider and weigh the evidence submitted, deter-
mine the credibility of witnesses, and find from
the evidence the facts upon which the court
passes its judgment. In deliberating upon and
endeavoring to reach a correct and conscientious
verdict, the jurors are required by the law to
be guided by the sworn-evidence in the case, to
calmly and dispassionately weigh and consider
it, uninfluenced by any impression or opinions
respecting the guilt or innocence of the accused,
and based entirely and exclusively upon such
evidence.”

This charge covers substantially the re
quested charge, and there was no error in
the refusal to give the same.

The seventh assignment of error is based
upon the refusal of the judge to give the fol-
lowing charge:

“J charge you that an accomplice is one who
participated in the commission ‘of a crime as
aider or abettor—any person who is connected
with the commission of the crime charged,
whether they directly committed the act con-
stituting the offense, or aided and abetted,
counseled or assisted, in planning its commis-
sion, and the law of this state is that the tes-
timony of an accomplice should be received with
great caution.” ;

The judge of his own motion had given the
following charge: |

‘The state relies in part for a conviction upon
the testimony of Will Boyd, an accomplice, and
in part upon circumstantial evidence. You are:
instructed that an accomplice in crime is a com-
petent witness against a coperpetrator of the
crime, and his evidence should be weighed by
the jury even though uncorroborated, and given

Ne

.
ihe

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“wth weight. as, the jury’ believes it entitled.
"It the testimony of an accomplice is corrobo-
) ated by other testimony, it should be entitled to
| qreater weight than if undorroborated. While
“the testimony of an accomplice should be re-
_teived with caution, especially if uncorroborated,
‘will it should not be rejected, if not corrobo-

ted in every material statement, if the jury
believe that it is entitled to any weight. The
_ evidence of an accomplice should be received
“with caution, but you are the judges of the
eredibility. of the evidence of the accomplice,
and you should give it such weight as you be-
fleve that it should have, when taken and con-
sidered together with the whole evidence in the
a, '

‘This charge covers in substance the re-
© quested charge; hence there was no error in
' refusal to give the charge asked.

Assignments Nos. 8, 9, 10, 11, and 12, not
> taving been argued, under the established
_ tiles of this court, may be considered as
~ abandoned.

q ' {8,6) An assignment of error not being
“} > argued, where a motion for new trial con-
q  talns several grounds, only those argued will
‘Wy beconsidered.

_ “In order to merit consideration by this court,
' assignments of error must be argued, unless the
» etor complained of is so glaring or patent that
" no argument is needed to demonstrate it. .
' “Where one of the assignments of error is
~ based upon the overruling of the motion for a
> ew trial, an appellate court will consider only
k | wich grounds of the motion as are argued.”
“@ lindsey v. State, 67 Fla. 111, 64 South. 501.

@ See, also, Smith v. State, 65 Fla. 56, 61
7 South. 120; Revels v. State, 62 Fla. 83, 56
Be south. 416; Johnson v. State, 55 Fla. 41, 46
‘South. 174; Colson v. State, 51 Fla. 19, 40
Be South. 183. i
a - [1] This case involving human life, we will
depart from the, usual custom and consider
the eighth assignment of error, based on the
 tefusal of the court to give the requested
' charge on the defense of an alibi, which was
| #8 follows: iadin

“The defense of an alibi has been offered,
> vhich means that the defendants were not there
@ when the crime charged was committed, and
~ consequently did not do it. If from the evi-
dence in this case you have a reasonable doubt
as to the alibi—that is to say, whether the de-
fendants were there or not—then you should
rive them the benefit of such. reasonable doubt,
ey and find them not guilty.”

The requested charge correctly stated the
law of this case upon the question of the de-
fense of an alibi; but, if the requested charge
was covered by other charges given, it would
not be error to refuse it. The court of its
éwn notion had instructed the jury as fol-

"The defendants, under their plea of not

BLACKWELL. vy. STATE
(86 So.)

227

as an. alibi.
accused were not present at the time and place
of the commission of the crime, but were at an-
other place, and therefore it was impossible for
them to have committed the crime. A defend-
ant has the right to prove by competent evi-
dence that he was not present and could not
have committed the crime, and if you believe
from the evidence, or if you have a reasonable
doubt from the evidence, that the defend-
ants were not present at the time and place
when M. M. Davis was killed, if you believe
he was killed, then you must acquit them. The
evidence of an alibi must cover the whole time
when the presence of the accused was required.
You must determine from the evidence whether

.|the defendants proved that they were not there,

or whether the evidence produced in your minds
a reasonable doubt as to whether or not they
were there. If, upon taking into consideration
the evidence offered by the defendants to prove
an alibi, with all the other testimony, you have
a reasonable doubt as to whether or not they
were there, you should find them not guilty.
[The defense of an alibi is, of all other testimo-
ny, the most decisive when duly substantiated ;
but the evidence adduced in support of it re-
quires to be minutely considered, and must be
such as to render it impossible that the crime
could have been committed by the party, who
claims that he was not present and could not be
guilty as charged.]”

The requested charge was fully covered by
the charge given by the court in that part of
the charge not included within the brackets,
and that part of the charge was correct on
the defense of an alibi, and the only criticism
of the charge that could be made was by the
addenda within the brackets. Was this suffi-
cient to destroy the former part of the charge,
or mislead or confuse the jury? We quote
from Words and Phrases, vol. 1, p. 298:

“The defense known in law as an ‘alibi’ is
that, at the time of the commission of the crime
charged in the indictment, the defendant was
at a different place, so that he could not have
committed it. State v. McGarry, 88 N. Ww.
718, 719, 111 Iowa, 709; State v. McGinnis,
59 S&. W. 88, 88, 158 Mo. 105; State v. Hale,
56 S. W. 881, 882, 156 Mo. 102; State v. Tay-
lor, 24 8S. W. 449, 451, 118 Mo. 153; Common-
wealth v. Webster, 59 Mass. (5 Cush.) 295, 319,
52 Am. Dec. 711; Savage v. State, 18 Fla. 970,
974; People v. Levine, 24 Pac. 631, 632, 85 Cal.
89; Wisdom v. People, 1 Colo. 170, 174, 17 Pac.
519, 522; Dunn v. State, 94 N. W. 646, 648,
118 Wis. 82.”

“An ‘alibi’ in law simply means that the de-
fendant was not there; or, to state it more def-
initely, a defendant who sets up an alibi shows
such a state of facts surrounding his where-
abouts at that particular time as would make
it practically improbable or impossible for him
to have committed the offense charged. State
y. Child, 20 Pac. 275, 276, 40 Kan. 482.”

[8] We cannot commend as a model for
clearness on the defense of an alibi the
charge as given, and think it would have been
better to have omitted the part inclosed in

- quilty, set up as a defense what is known in law

An alibi simply means that the.

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228: 86 SOUTHERN REPORTER (Fia.!

brackets. The judge, after correctly charging
upon the defense of an alibi, by the words in-
closed in brackets charged an abstract propo-
sition of law, the definition of an alibi, and
we cannot say that it was so misleading or
confusing to the jury as to constitute re-
versible error, on the judge refusing the re-
quested charge.

[9,10] The thirteenth and fourteenth as-
signments of error are based upon the ad-
mission in evidence of the testimony in bill
of exceptions of Harrison Davis and Saphro-
nia Holmes as given at the former trial of
this case, upon the grounds that no sufficient
predicate was laid for the introduction of
such testimony. Dr. Porter Webb, a practic-
ing physician, testified that Harrison Davis
was prostrate in bed, due to inflammatory
rheumatism, and that it might last indetinite-
ly and make him an invalid; that Sapnronia
Holmes was sick, and “not able to come to
court, and that if she had good luck it might
be two weeks at least before she could get
there.” The doctor, upon being asked by the
court, “Do you think either of them will be
able to get here in the next two weeks?”
answered, “Oh, no; I don’t think so, Judge.”

-From the testimony of these absent wit-
nesses as contained in the bill of exceptions,
these witnesses had been at the former trial
cross-examined at great length, and, as fur-
ther shown by the record in this case, there
were a great number of witnesses, both for
the state and the defense, present at the time
the case was called for trial, and the defend-
ant did not show or offer to show any further
cross-examination of such witnesses. Under
these circumstances we cannot say that there
was any abuse of judicial discretion in per-
mitting the admission of such testimony, and
an appellate court will not reverse the dis-
cretion of the trial judge, unless there is a
manifest abuse of such discretion.

There is some diversity of opinion among
the courts as to whether temporary absence
by reason of illness of a witness will permit
the use of his testimony given at a former
trial, but we think that the weight of author-

ity and the better rule is that it is a matter’

resting in the sound judicial discretion of the
trial judge. .

-“Any physical incapacity preventing attend-
ance in court, except at the risk of serious pain
or danger to the witness, should be a suflicient
cause, of unavailability; and this has been al-

most universally recognized by courts. Certain |

distinctions, however, have from time to time
received special notice: (a) The duration of the
illness need only be in probability such that,
with regard to the importance of the testimo-
ny, the trial cannot be postponed, (b) as to the
degree of the illness, the traditional phrase, ‘so
ill as not to be able to travel,’ sufficiently indi-
cates the’ requirements of common sense; and
the ‘ability’ is to be considered with reference
to the risk of pain or danger to the witness.
That the illness should be such as to make it
impracticable to take the witness’ deposition at

his home has been said by one court to be the
correct limitation; but this-is certainly incor-

rect, for a deposition obtained’ from a person’

during illness could not be any better than his
former cross-examined testimony or deposition,
and would probably be much'less trustworthy.
There is no reason why the application of the
general principle in a given instance should ever
come before a court of appeal; to the trial
court should be left the determination of the
existence of the necessity in a particular case,”
2 Wigmore on Ev. p. 1760, § 1406, and notes.
“Mitchell, J., in Thornton y. Britton, 144 Pa.
180, 22 Atl. 1048: ‘The determination of this
question in each case as it arises rests largely in
the discretion of the court. On a trial for mur-
der, for instance, the judge presiding would feel
it his duty to enforce the attendance of a wit-
ness having knowledge of the crucial facts, even

at some risk to the witness’. health or life;,

while in a civil action he might feel free to hold
that a much smaller risk to the witness would
be sufficient to excuse him from personal at-

tendance.” 2 Wigmore on Evidence, § 1406, and

note,

“It is obvious that the purpose of this act is
to permit the introduction in evidence of a
bill of exceptions containing evidence adduced at
a former trial, upon the reversal of a judgment
rendered thereat, when certain evidence given
at such former trial cannot be had. In other
words, provision was made for the admission
of the bill of exceptions when the testimony of
a witness who had testified at a former trial
could not be had by reason of the death,’ sick-
ness, or insanity of such witness, or by reason
of the fact that he is out of the jurisdiction
or cannot be found after diligent search. See
the discussion in Putnal v. State, 56 Fla. 86, 47
South. Rep. 864.” Bennett v. State, 68 Fla.
494, text 498, 67 South. 125, 126,

In the case of Putnam y. State, 56 Fla, 86,
in the body of the opinion page 96, 47 South,
864, 867, Shackleford, C. J., said: re

“Obviously it is for the trial court to pass
upon and determine whether or not a sufficient
and proper predicate has been laid for the in-
troduction of such former testimony. In the
ease at bar the trial court was of the opinion
that such predicate had been laid, and, upon the
showing made to us, we do not feel called
upon to disturb the ruling. We fully appre-
ciate the necessity of requiring a compliance
with the rule in such cases, and have no dispo-
sition or inclination for a relaxation of any of
the safeguards that have been ‘thrown around
it.” ‘ A 5

In the earlier days the testimony of a wit:

ness given at a former trial was confined to ©

cases where the witness was dead, or had
become insane, or beyond the seas or the ju-
risdiction of the court; but the tendency of
the modern decisions has been to enlarge
the rule of evidence. as to the admission of

‘such testimony. Prior to 1893 (chapter 4135,

Laws of Florida) the testimony contained in
the bill of exceptions was not admissible in
evidence, but such testimony had to be prov-
ed by some one who was present at the ‘tria}


Ma) - ) BLACKWELD ¥. STATE: 229

(86 So.)

and heard the witness ‘testify; but section 1
of chapter 5897, Laws of 1909 (Comp. Laws
1914, § 1528), is as follows: |

*“In case any judgment at law: ecndeied by any
court of the state of Florida shall be reversed
and a new trial awarded, and it be made to ap-
pear to the satisfaction of the court that: any
evidence used at the former trial, whether oral
or written, and incorporated in the bill of ex-
ceptions, cannot be had, then the bill of excep-
tions taken at the previous trial may be used as
éridence upon any subsequent trial of the case,

- #8 to any matter in issue at the former trial:

Provided, that no evidence given upon a former
trial of any case pending in any of the courts

- of the state of Florida shall be used in evidence

upon the trial of any cause in any of the courts
in the state of Florida, evtst as herein pro-

: vided, w

Hoes .

Other states have adopted statutes upon
this subject, but those that we have had
access’ to have defined under what condi-
tlons, such as absence from the state, per-
manent. illness, death, or insanity, and we
have been unable to find any statute similar
to ours which permits the introduction of
stich evidence used at the former trial when
it is “made to appear that it cannot be had.”
It seems from the broad language used that
the legislative intent was to vest in the trial
Judge a discretion under the circumstances
of each particular: case as to the admission
or rejection of such former testimony con-
tained in the bill of exceptions.

{11} Ordinarily the court will not pass on

ti constitutionality of a statute, unless the

ftntute is expressly attacked as unconstitu-
tional; but there has been some discussion
whether or not the objection to the admission
ofso much of the bill. of exceptions as con-

 talned the testimony of the absent witnesses

given at a former trial did not necessitate
the passing upon the constitutionality of
chapter 5897, Laws of Florida 1909, which is

a8 follows:

“In case any judgment at law rendered by any
court of the state of Florida shall be reversed
and a new trial awarded, and it be made to ap-
pear to the satisfaction of the court that any
evidence used at the former trial, whether oral
or written, and incorporated in the bill of ex-
teptions, cannot be had, then the bill of excep-
tions taken at the previous trial may be used
as evidence upon any subsequent trial of the
nee, as to any matter in issue at the former
trial: Provided, that no evidence given upon a
former trial of any case pending in any of the
courts of the state of Florida shall be used in
evidence upon a trial of any cause in any of the
courts in the state of Florida, except as herein

pel fa

‘The writer of this opinion, prior to the en-
actment of the amendment to this statute, as
atrial judge admitted over objection of the
defendant testimony. of a deceased: witness,
the chief witness for the state, taken upon a

habeas corpus! pro¢eéding, where the defend-
ants charged with murder weré represented
by counsel and cross-examined this state wit-
ness. There was a conviction of manslaugh-
ter, and upon appeal to this court the. admis-
sion of such testimony. was assigned as error,
but not passed upon,..as the record of the
case (not in the opitiion) shows that it was
not argued, and was considered as abandon-
ed. Bexley v. State, 59 Mla. 6, 51 South. 278.

“Because of the universal constitutional right
of the accused to be confronted by the witness-
es; it is absolutely nécessary, in order that the
testimony of a deceased or absent witness may
be admissible at a subsequent trial against the
accused, that the party against whom it is of-
fered should have had an opportunity of cross-
examining him at the earlier trial.

“Tf the accused has once enjoyed his right to
confront witnesses, his constitutional right to
meet the witnesses against him face to face is
not violated by the admission of the testimony
of such a witness, who is absent, at a subsequent
trial. Hence, if the defendant was represented
by counsel at the preliminary examination and
has had an opportunity of cross-examining the
witnesses, he has enjoyed his right to meet his
accusers face to face, and no objection exists to
receiving the testimony of deceased or insane
witnesses,”

Underhil on Criminal Evidence (2d Bd.) §
265. .

“In the United States, most of the Constitn-
tions have given a permanent sanction to the
principle of confrontation, by provisions re-
quiring that in criminal eases the accused shall
be ‘confronted with the witness against him’ or
‘brought face to face’ with them. The question
thus arises whether these constitutional provi-
sions affect the common-law requirement of con-
frontation, otherwise than by putting it beyond
the possibility of abolition by an ordinary leg-
islative body. The only opening for argument
lies in the circumstance that these brief pro-
visions are unconditional and absolute in form:
i, e., they do not say that the accused shall be
confronted ‘except when the witness is deceased,
ill, out of the jurisdiction or otherwise unavail-
able,’ but imyperatively prescribe that he ‘shall
be confronted.’ Upon this feature the argument
has many times been found that, although the
accused has had the fullest benefit of cross-ex-
amining a witness now deceased or otherwise
unavailable, nevertheless, the witness’ presence
before the tribunal being constitutionally indis-
pensable, his decease or the like is no excuse for
dispensing with. his presence.

“That this argument is unfounded cannot be
doubted; and the answer to it may be in sevy-
eral forms: (1) There never was at common
law any recognized right to an indispensable
thing called confrontation, as distinguished ftom
cross-examination.; There was a right to cross-
examination as indispensable, and that right was
involved in and secured by confrontation; it
was the same right under different. names... This
much’ is clear enough from the history of the
hearsay rule (ante, § 1364), and from the con-
tinuous understanding and .exposition of the
idea. of confrontation; (ante, § 1895). It fol-


1552

Billy H. Nolas, Julie D. Naylor, Ocala, FL,
for petitioner-appellant.

Fariba Komeily, Asst. Atty. Gen., Miami,
FL, for respondent-appellee.

Appeal from the United States District
Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, COX and
DUBINA, Circuit Judges.

TJOFLAT, Chief Judge:

Bernard Bolender is a Florida prison in-
mate. In 1980, a jury convicted him of four
counts of first degree murder, four counts of
kidnapping, and four counts of armed rob-
bery for torturing and slaying four alleged
drug dealers. The jury unanimously recom-
mended a sentence of life imprisonment for
each murder, but the trial court overrode
that recommendation and sentenced Bolen-
der to death for the murder convictions and
to consecutive life sentences for the other
crimes. After exhausting direct appeals and
State collateral attacks, Bolender filed a peti-
tion for a writ of habeas corpus in the United
States District Court for the Southern Dis-
trict of Florida pursuant to 28 U.S.C. § 2254
(1988), seeking the vacation of both his con-
victions and his death sentences.

In his habeas petition, Bolender mounted
seventeen challenges to his convictions and
death sentences; the district court denied
relief without holding an evidentiary hearing.
Bolender appeals the district court’s disposi-
tion of five of his claims as well as its refusal
to conduct an evidentiary hearing on the
merits of his contentions. We hold that the

1. The ensuing discussion draws upon the facts as
established by the Florida Supreme Court on
direct appeal, Bolender v. State, 422 So.2d 833
(Fla.1982) (““Bolender I’’), cert. denied, 461 U.S.
939, 103 S.Ct. 2111, 77 LEd.2d 315 (1983).
Under 28 U.S.C. § 2254(d) (1988), a federal
court reviewing a petition for a writ of habeas
corpus filed by a state prisoner must give a
presumption of correctness to factual determina-
tions made by state courts (once certain prereq-
uisites are met). See Cumbte v. Singletary, 991
F.2d 715, 723 (11th Cir.), cert. dented, —— U.S.

, 114 S.Ct. 650, 126 L.Ed.2d 608 (1993);

Lusk v. Dugger, 890 F.2d 332, 336 (11th Cir.

1989), cert. denied, 497 U.S. 1032, 110 S.Ct.

3297, 111 L.Ed.2d 805 (1990). This presump-

16 FEDERAL REPORTER, 3d SERIES

district court properly declined to issue the
writ. Accordingly, we affirm.

i.

A.

{1] The facts leading to Bolender’s con-
victions and death sentences are well docu-
mented in the voluminous record of this mur-
der case and can be briefly summarized as
follows.! On the evening of January 7, 1980,
Bolender and two. co-defendants, Paul
Thompson and Joseph Macker, were at
Macker’s residence in Dade County, Florida,
when two of the victims, John Merino and
Rudy Ayan, arrived to participate in a drug
deal.2 A dispute erupted shortly thereafter,
apparently concerning the whereabouts of
the narcotics that were to be purchased in
the contemplated transaction. Bolender,
who was armed with a gun, ordered Merino
and Ayan to strip down to their shorts and
lie down on the floor in one of the bedrooms.

The defendants brought the final two vic-
tims into the house shortly after the conflict
began. At one point, Thompson went out-
side and returned holding Scott Bennett,
whom he had discovered hiding in the bushes
around the house, at gunpoint. After search-
ing Bennett, Thompson confiscated one kilo-
gram of cocaine and two guns. Macker then
took his gun and went outside to see if
anyone else was lurking in the vicinity. He
noticed an unfamiliar blue car driving back
and forth in front of the house. Macker
motioned for the driver to come inside, but
the driver refused. Thompson then ordered
Merino to get dressed, and the two men
succeeded in luring the driver, Nicomedes

tion is equally applicable to state appellate court
findings of fact. Sumner v. Mata, 449 U.S. 539,
101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

2. Trial testimony revealed that several additional
people were in other parts of the house that night
but were neither victims of the crimes nor direct
participants in the ensuing criminal activity.
They included Macker’s pregnant wife, two
friends of the Mackers, two unnamed women
referred to as prostitutes, and Macker’s body-
guard (or ‘“‘houseman’’) who had lived there for
approximately three years. All of these people
were aware of the violence as it occurred, but

they stayed out of the way.


BOLENDER v. SINGLETARY

1553

Cite as 16 F.3d 1547 (11th Cir. 1994)

Hernandez, into the house. The defendants
ordered Bennett, Hernandez, and Merino to
strip and to join Ayan on the floor; they then
robbed all four victims of their jewelry.
Thompson also searched Hernandez’ car and
discovered approximately $3,000 in cash
along with two more guns.

Macker testified that the fate of the four
victims was essentially sealed by this point.
Indeed, Thompson made clear to Macker
when he was outside the house that the men
then being held by Bolender in the bedroom
could never be allowed to leave. Meanwhile,
Bolender was becoming increasingly agitat-
ed, threatening to kill all four men if they did
not reveal the location of an additional twen-
ty kilograms of cocaine that he believed the
four men were concealing. The victims in-
sisted that they had only the one kilogram
Bennett was carrying, but Bolender refused
to believe them. Thus began the brutal ser-
ies of events that culminated in the quadru-
ple murder. As the Florida Supreme Court
found, “during the ensuing hours the victims
were tortured and terrorized in an attempt to
obtain their cocaine.” Bolender v. State, 422
So.2d 833, 834 (Fla.1982)" (“Bolender I”),
cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77
L.Ed.2d 315 (1983).

Macker testified that Bolender, assisted by
Thompson, taped the victims’ hands and feet
with duct tape. Bolender then repeatedly
beat the four men with a baseball bat in an
attempt to get them to talk. Hernandez was
singled out for special attention: Bolender
used a hot butcher knife to burn his back and
later shot him in the leg. The victims contin-
ued to insist, however, that they had only one
kilogram of cocaine, not the twenty that Bo-
lender wanted; they pleaded with Bolender
to listen to them. Macker admitted hitting
Merino once with the baseball bat, but
claimed that he did so only out of fear that
Bolender and Thompson would turn on him if
he did not demonstrate solidarity with them.
Macker denied any further involvement in
the actual killings and stressed that Bolender
had dominated him and Thompson through-
out the entire enterprise.

The defendants then gagged the victims
and wrapped them in sheets, bedspreads,
rugs, and the material from a beanbag chair.

Bolender continued to beat and stab the four
men savagely, even as, they were being
moved through the house and taken outside
to the car Hernandez had been driving. Ac-
cording to Macker, all of the victims were
alive when they were wrapped; by the time
the bodies were loaded into the car, however,
only Merino appeared to be breathing. Bo-
lender and Thompson placed Bennett and
Ayan in the trunk of the car, Merino in the
back seat, and Hernandez in the front.

At approximately 4:30 a.m. on January 8,
Bolender and Thompson left Macker’s resi-
dence in two cars, with the bodies of the
victims in Hernandez’ vehicle. They drove
onto the I-95 expressway and parked the car
with the bodies on the side of the highway a
short distance past the entrance ramp. In-
tending to destroy the evidence of the crime
by burning the car and the victims, they
poured gasoline on the vehicle and the sur-
rounding grass and set the grass on fire as
they left. The car failed to burn, however,
because passing motorists saw the fire and
put it out before the vehicle was consumed.
Bolender and Thompson returned to Mack-
er’s house in the other vehicle.

Later that morning, the defendants thor-
oughly cleaned Macker’s home, removing
bloodied carpeting and other evidence of the
murders. Macker disposed of the weapons
used in the killings, as well as the guns taken
from the victims, in a nearby canal. Never-
theless, because the attempt to destroy the
ear and the bodies had failed, the authorities
were able to link Bolender and Macker to the
crimes. Bolender’s fingerprints were found
on the car, and several of the sheets and rugs
found wrapped around the bodies were iden-
tified as having come from the Macker home.
Based upon this evidence and a search of the
Macker residence, Bolender and Macker
were arrested for the murders on January
13, 1980. Macker gave a statement to the
authorities on January 18 in which he impli-
cated himself, Bolender, and Thompson in
the murders; he also revealed where he had
disposed of the evidence.

B.
The state charged Bolender, Macker, and
Thompson with four counts each of first de-


1548

unconstitutional; and (5) Florida Supreme
Court complied with Clemons, which held
that state appellate court may constitutional-
ly uphold death sentence that is based in
part on invalid or improperly defined aggra-
vating circumstance, provided that decision is
reached either by reweighing of aggravating
and mitigating evidence or by harmless error
review.

Affirmed.

1. Habeas Corpus ¢768

Statute, providing that federal court re-
viewing petition for writ of habeas corpus
filed by state prisoner must give presumption
of correctness to factual determinations by
state courts once certain prerequisites are
met, is applicable to state appellate court
findings of fact. 28 U.S.C.A. § 2254(d).

2. Habeas Corpus 742

Habeas petitioner is not entitled to evi-
dentiary hearing where state courts have
made findings of fact relevant to claims at
issue. "

3. Habeas Corpus ©742

Habeas petitioner is not entitled to evi-
dentiary hearing where proffered evidence
would not affect resolution of claim.

4. Habeas Corpus ©=422

Absent certain limited exceptions, state
court’s rejection of federal constitutional
claim on procedural grounds will bar consid-
eration of that claim by federal habeas court
if state court’s ruling rests on independent
and adequate state law ground.

5. Habeas Corpus ¢314

Procedural default doctrine requires fed-
eral court hearing habeas petition to show
deference for state procedural rules.

6. Habeas Corpus 365

Claims raised improperly in state post-
conviction review process may be barred in
defendant’s federal habeas proceeding.

7. Habeas Corpus ¢338

District Court appropriately declined to
consider habeas petitioner’s claims of ineffec-
tive assistance of counsel which were held by

16 FEDERAL REPORTER, 3d SERIES

Florida Supreme Court to’ be barred on pro-
cedural grounds. U.S.C.A. Const.Amend. 6.

8. Criminal Law ©641.13(1), 1166.10(1)

To obtain reversal of conviction or death
sentence on grounds of ineffective assistance
of counsel, defendant must show both: (1)
that identified acts or omissions of counsel
were deficient, or outside the wide range of
professionally competent assistance, and (2)
that deficient performance prejudiced de-
fense such that, without the errors, there
would be reasonable probability that the bal-
ance of aggravating and mitigating circum-
stances would have been different. U.S.C.A.
Const.Amend. 6.

9. Criminal Law ¢641.13(1)

For purposes of claim of ineffective as-
sistance of counsel, defense counsel is re-
quired to provide reasonably effective assis-
tance, or simply representation that evinces
reasonableness under prevailing professional
norms. U.S.C.A. Const.Amend. 6.

10. Criminal Law ©641.13(1)

Judicial scrutiny of attorney’s perfor-
mance, for purposes of ineffective assistance
of counsel claim, is highly deferential because
craft of trying cases is far from exact science
and is replete with uncertainties and obliga-
tory judgment calls. U.S.C.A. Const.Amend.
6.

11. Criminal Law ©641.13(1)

In reviewing ineffective assistance of
counsel claim, court must avoid distorting
effects of hindsight by viewing performance
as it appeared to counsel at the time, and
must indulge strong presumption that coun-
sel’s conduct falls within wide range of rea-
sonable professional assistance. U.S.C.A.
Const.Amend. 6.

12. Criminal Law €641.13(7)

Failure to conduct reasonable investiga-
tion into possible mitigating circumstances
may render counsel’s assistance ineffective.
U.S.C.A. Const.Amend. 6.

13. Criminal Law ©641.13(2.1)

Defense attorney is not required to in-
vestigate all leads, for purposes of ineffective


1554

gree murder, kidnapping, and armed rob-
bery. Macker pled guilty to reduced charges
of second degree murder for the four homi-
cides and became a witness for the state, and
Thompson was adjudicated incompetent to
stand trial. Thus, Bolender was tried alone.
In exchange for his cooperation with the
prosecution, Macker received concurrent life
sentences on all twelve counts, plus an addi-
tional fifteen-year term in prison for posses-
sion of cocaine.

At trial in April, 1980, Bolender raised an
alibi defense, contending that he was at home
in Fort Lauderdale with his girlfriend, Dawn
Poulis, and Merino’s wife, Claudia, at the
time of the murders. Merino and his wife
had been living in Bolender’s house since
December 24, 1979. Both Claudia Merino
and Poulis testified that Bolender was at
home with them during the early morning
hours of January 8, 1980. The jury, howev-
er, rejected Bolender’s alibi claims and con-
vjcted him on all counts.

Neither the state nor Bolender presented
any evidence: at the penalty phase of the
murder prosecutions, which was held imme-
diately following the return of the verdicts.

3. On Janwfary 25, 1990, after being found compe-
tent to stand trial, Thompson pled guilty to four
counts of second degree murder for his role in
the crimes at issue here, thereby avoiding the
death penalty.

4. The court found the following aggravating cir-
cumstances present, as enumerated in Fla.Stat.
Ann. § 921.141(5) (West 1985): the capital felo-

“ ny was committed (1) by a person under sen-
tence of imprisonment; (2) by a defendant who
knowingly created a great risk of death to many
persons; (3) during the perpetration of a rob-
bery/kidnapping; (4) for pecuniary gain; (5) for
the purpose of avoiding or preventing a lawful
arrest; (6) to disrupt or hinder the lawful exer-
cise of law enforcement; (7) in an especially
heinous, atrocious, or cruel manner; and (8) in a
cold, calculated, and premeditated manner with-
out any pretense of moral or legal justification.
The ninth aggravating factor was not present in
this case, the court found, because the defendant
had not previously been convicted of another
capital felony or of a felony involving the use or
threat of violence to the person. It should be
noted that two additional aggravating circum-
stances were later added to the statute. See
Fla.Stat.Ann. § 921.141(5) (West Supp.1993).

5. The judge placed findings in the record at the
time he imposed sentence from the bench; as

16 FEDERAL REPORTER, 3d SERIES

After hearing the arguments of counsel, the
jury deliberated only twelve minutes before
unanimously recommending a sentence of life
imprisonment. Defense counsel then de-
clined to present additional evidence after
being offered an opportunity to do so before
the trial judge. Neither party objected to
the immediate imposition of sentence, so the
judge overrode the jurys recommendation
and imposed the death penalty after finding
eight of the nine statutory aggravating fac-
tors then on the books to apply;* the judge
found no evidence in mitigation.®

Thereafter, Bolender pursued numerous
direct and collateral challenges to his convic-
tions and death sentences. On direct appeal,
the Florida Supreme Court affirmed Bolen-
der’s convictions and sentences.® Bolender I,
422 So.2d at 838. Bolender then moved the
trial court for postconviction relief pursuant
to Rule 3.850 of the Florida Rules of Crimi-
nal Procedure, alleging ineffective assistance
of counsel at both the guilt and penalty phas-
es of the trial.’? After the Governor signed a
death warrant, the trial court held an eviden-
tiary hearing in January, 1985, and vacated
Bolender’s death sentences on the ground

required by statute, written findings of fact and
conclusions of law in support of the death sen-
tence were later entered by the court on May 7,
1980.

6. On direct appeal, Bolender raised issues re-
garding the trial court’s alleged abuses of discre-
tion in refusing to permit a defense witness to be
recalled essentially to repeat her -testimony
through an interpreter, in overriding the jury's
recommendation of life, and in considering im-
proper aggravating circumstances. The Florida
Supreme Court concluded that the court had
erred in applying two of the aggravating circum-
stances outlined supra, note 4: the first, because
“being on probation is not equivalent to being
under a sentence of imprisonment at the time of
the crime,” and the second, because Bolender
never directed his actions toward any of the
uninvolved people in the house that night. Bo-
lender I, 422 So.2d at 837-38. The court af-
firmed the application of the remaining factors,
however, and concluded that, given the lack of
mitigating evidence, the disapproval of two ag-
gravating circumstances did not require reversal
of the death sentence. /d. at 838.

7. Because the judge who tried Bolender’s case
had since retired from the bench, these proceed-
ings were conducted before a different judge of
the same Florida circuit court


A SATURDAY, JULY 28, 1990, THE AM HERALD 17

Florida murderer executed

EXECUTE, FROM re

“tortured, 9 “ . #*

“Tt is nina ife acura?

concluded Florida’s electric chair —
- does in fact work’ as it ‘is designed

to,” Gov. Bob Martinez: ‘said Friday"

night.
“Almost! sevelt gas Have passed’ In previous electrotttiotis} Had. been
“purchased in a Starke:.storé} was |

since Anthony Bertolotti. committed».

. the horrible crime:that sent him'to:
the electric chair;”’ Martinez said. °

“Today’s ‘events, have | ‘begun: to.

- restore certainty to Florida's ulti ;.

mate penalty, and I commend the |
courts for moving toward that even-
tual end.”

Bertolotti, convicted of brutally
killing 48-year-old Carol Ward of
Orlando, was strapped into the chair
about 7p.m.

Three surges of 2,000 volts fol-
lowed.

There were . white wisps of
smoke, as is usual at electrocutions,
but no signs of any problems.

In the aftermath of the Tafero

execution, lawyers for death row
inmates had argued that the chair
wasn’t working properly. They » suit.
cited the Tafero execution as evi- |
‘dence that the chair; had a fob ol

iia 4 rm" dee

headpiece by death. chamnbet ‘Wotk-'

The Department of, Corrections) i
however, maintained that’ the. s prob.
- lems of the Tafero execiition: were
caused by a spongé: sewn into: the’

ers. The sponge, unlike those used*

‘synthetic and burst’ into ‘flames

when, the current passed, throgh i its. |

"the department saidi’ i. ses:
Monday, experts gathered ‘at.|

; Florida State Prison’ And: tested: the |:

Chait, using a tub of saline solution
to approximate the.human body’s
resistance to electricity... Meters
attached to the chair’s wires showed
about 2,000 volts and 11 amps flow-
ing through the headpiece, the
saline bath and the leg electrode.

On Friday, the 11th U.S. Circuit
Court of Appeals in Atlanta —
which had previously issued three
stays of execution for ‘inmates who
said the chair was faulty —- refused
to stay the Bertolotti execution:
The U.S. Sanpete Court followed

Herald wire services contributed ;
to this report. — et eae

head electrode and was, apable of
“... torturing people to deathi's¢%'% qT

a a


BERTOLLOTI, black,

Anthony,

elec. Fla.

C27

at " vestigator Keefe has made.a aneinie

Victim's Srocerien tle on her kitchen table, She had returned from shopping when.
the killer ee, his wey. into her home onan

use of needing to use the phone.

Prey Ca é : Ms

: by ese GEEHR: :
Le OTC a

ORLANDO, FLORIDA
APRIL 12, 1984, eo eds

For no apparent, rhyme or reason, ‘the
long arm, of murder sometimes reaches
into the least likely places and claims the
most innocent victims, On Tuesday,
September 27, .1983,, Rosemont—an
affluent residential community in the

‘Ward, a frail, 46-year-old homemaker,
became such a. yictim. At that time,
crime in-Rosemont was virtually un- |
known. A string of robberies in 1982 had .

complacent retired: couples and the
there in expensive, homes and lakefront
and ‘more; But murder? That was un-,
_thinkable, © co =

Such were the ‘thoughts of Homicide:

Investigator Randy Scoggins of the
Orlando ‘ail Eepemapent, as i

| a fin val
Ui A : ii ‘Al
ii a : Uivenyott

a te

Lrg |: ye a.

northwest section of Orlando, Florida— .
become such a place; and Carol Miller -

unsettled the ‘well-to-do families, the ‘
ambitious, career-bent Singles who lived: :

condominiums that sold for $100,000 ™

Se

Coheed killer's ie declaration:

a , SF
4 ar x

%,
Hy 9
ia f : v

“y ee
one-story, brick-trimmed home where
Ward had lived for six years—and who,
on this day, also died.
~ Outside the house, Lieutenant Don
Glasses head of homicide, was talking
with four or five other investigators and a

tall, scholarly-looking man with graying ©

hair, . a moustache and wire-rimmed
spectacles. On the periphery, tech-
nicians, were going about the business of

organizing equipment to process the ©

-crime scene.

Investigator Scoggins reported to his

supervisor. *‘The communications desk
_felephoned me at home and told me to
-come over here,’’ he said. ‘‘I understand
ythere’s.a dead woman inside.”’

* ‘Right. And I want you to take charge
‘sof the investigation,’’ the lieutenant
‘said: 9.

o peciWhat kind of crime are we in-
vestigating and what’s been found out so

y far?’*Scoggins asked.

2 **At this point, what:we’ve got is a

"dead: woman lying on the floor with a
: butcher knife sticking out of her abdo-
_Men, fi s about it. Nothing else has

int yet. because Wil
an Hil | lial i
dH Beets. | had the scetie sealed

hcl
Wl 10 G4

- 1990

inspection inside the house; he'll take

~ Lieutenant Glass inrodisced the strange: : :
~ standing with the group as. Ward’s hus

_ band, 48, who lived with. the victim
‘Mr, : Ward teaches eighth-grade history
at a nearby junior high school,”. Glass *

~ offered by way of information; tHe dis- 29

- covered Ward’s body when he returned

_ home from his day at school at his res ;
ular time of five- -thirty.2"s eS

» “Briefly fill me in on that
said to the teacher. *<
. Ward readily complied.’

Scoggin

“Upon i arriv

: ing home,’’ he said, ‘*I noticed’ that the

garage door was open and that Carol's »
Car was not there. That struck me a little *.
unusual; she’s always here ayhea I get nay!
home;”’ a
‘*What kind of car?” Scoggins asked;

. “A nineteen-seventy-three. bronze » *
Ford: Torino station eh It has =

a

“Se Fs SSH A |

decoy timed side and rear windows; the
license tag sata is HVA three-two-
five.*?

“Okay, go on.’ :

*‘I went into the garage and peered the
door to the kitchen,’’ Ward continued. .
“I Saw some groceries on the kitchen
counter; torn bags of others. were scat-
tgred over the floor. I called for Carol |
and got no answer. I kept'on calling as I *.
searched through the other rooms of the
house. When I got to the dressing room,
which is a small connecting room be- ». ’
tween the library and the bathroom, I *.
saw Carol, naked from the waist down, ~
lying on the floor. She was covered with ‘
blood, and there was a butcher knife -.
sticking in her stomach. I touched her’
leg; it was cold. I knew when that she
was dead, that there was nothing I could
do for her. I telephoned the police.’’

+

Scoggins noted that Ward spoke even- “

- ly. Whatever the school teacher’s inner mo
emotions, he was managing to keep them AY

under control. fe
‘‘That’s good enough for now,” the “i
investigator said. *‘I’m going to have to

AEF Te A LW ii

lng

ding to pr dh officlal


if

“Leaving the kitchen, the ie

efi ia
a ee ntered the dining'room where Scoggins
I take = ‘Orlando (Offi cials determined the ae noted the victim’s shoes} underwear and .
tion of ee ‘pants strewn over the floor, .near the en-

e attack was. so'savage that the sex ‘ance. be ee si :
rd -the -. living room and library to a small dress-
aioe: fiend used two knives to stop Carol’ ing ssavahroom aren atthe reatot the
ranger xt ~ house. On the bloodstained carpeting of
ange from crying. And when he finished the he tesingsoom the motiatd, son
ictim.) ©. nude body of Carol Ward lay on its side,
listory ©: mutilation, he left her sir ang led, _. in an almost fetal’ position, a’kitchen-
Glass naked from the waist down . type butcher: knife protruding from the
Je dis- P abdomen. Nearby lay the blade from a
turned with a butcher knife protruding similar type'of knife and, alongside, its
is reg- . *. broken-off. handle, Scoggins theorized |

“a b fre r om her Bn eeinen: ig the killer had accéss to two knives, that |

oggins =} sa “3” the first one had broken during the attack

ih A : and the second one had been used. Be-
\ arriv- SR ae anes ete ; pee, a _ sides numerous stab wounds to the body,
aat the . statement later, so stay around.’’ '_little strange,’’ he said to Keefe, pointing ‘there was a massive amount'of trauma to
Jarol’s - ..With that, Scoggins and Keefe to the jewelry. ‘‘A sink counter isn’t a 2 the head and facéy ©...
alittle walked through the garage and into the common place to leave stuff like this.’’.. “ Blood from. the stabbing and other
il get _kitchen of the house. There, Scoggins Keefe agreed. : as * wounds had spattered onto the walls, the

~~: gaw shopping bags full of groceries on **What’s over here?”’ Scoggins asked; ceiling and the closet ‘area; and blood-
asked: = _., the sink counter and torn bags of grocer- _ walking to a closed door on the left side. smeared pieces of glass. from a broken |
wranze | jes scattered over the floor. A handful of of the kitchen and opening it. “+ beer stein were scattered over the dress- |
as % gold jewelry, obviously, the victim’s, ‘*Storage room,’’ Keefe ahawered.; ing room vanity-type counter..

also ay, on the counter, “This, looks a ‘‘Nothing in there but a bunch of of junk, Bas a, Unto & Scossing, said,

SHE STOP

nied able o> 3

pointing to the ‘broken’? Stelny the .

ws; the
e-two- weapon used by the killer in inflicting the
head and face trauma.’*”:*!""") i
The investigators rehitfed to the out-
ned the side where Scoggins told evidence per- ;
tinued: ‘sonnel how he wanted thé crimé scene
<itchen _ processed and what kinds’ of photos he .
e scat- wanted taken. After that,“he drove the
- Carol “victim’s husband to the Municipal! Jus-
ng asI- ‘tice Building to get a ‘taped statement.
; of the Before setting’ up for that, he issued a
‘room, statewide lookout for Ward’s ‘car. '
ony os -~ On tape, the school teacher accoun-
oom, I “ted for everywhere he’d''beents*every-
down, -° thing he’d done. and every’ person he’d
ed with * spoken to between the time he left the “j
r knife - Rosemont housein the’ ‘early’ toring ee
red her” and returned there at 5:30 that eVening to
hat she .. discover that Ward had been slain.'It all
Lcould added up to'a routine dayreporting to
ica work; talking with the principal;: “teach-
-eeven- _ing classes;‘corrécting papers and pass-
’s inner “ing pleasantries’ with ‘other'nembers of
ep them ~ the school staff. ‘He loco vete cig
¢ ‘wife’s
he
to Pp ggins
snicipal Sina ‘ ‘helped the teacher arrange fora place to
Police lifted suspect's fingerprints from this kitchen knife used In the ecg cin then teturned to’ ‘the;

official

i

ai Pee ae a 7
RII AS RE

i f
By this time, it was 11:00 p.m. He
checked with his evidence technicians;
the taking of photos had been completed

and the initial processing of the crime.
scene was nearly finished: Except for the ©
“night when the medical examiner and his

groceries scattered over the kitchen
floor, technicians had found no signs of

struggle in.the other.rooms of the house..

Neither -had they found any signs of
forced entry...

‘*Which means, ‘ Scoggins theorized,
“‘that Ward was first surprised by her
assailant in the kitchen and that whoever
it was either came into the house with her
or was already inside waiting when she

came. in.’’ He issued strict instructions |
that details of the killing not be released °

to. the news media, “There are certain
specifics about this,case,’’ he explained,

‘that only the killer would know. We .

don’t need to alert that person to the fact
that we know them, too. It would hinder
our investigation. At this point, we have

no suspects, no motives and no wit-.

nesses. All we know is that Carol was
killed sometime between eight-fifty a.m.
when Ward left for work and five-thirty
p.m.,, the time he returned.”’

Ten minutes later, Dr. Thomas
Hegert, the Orange/Osceola County
medical examiner, and an associate. ar-
rived at the crime scene and, during the

next hour or so, made a preliminary '

examination of the body and took photos
for their own use, Hegert attributed
Ward’s death to ‘‘a combination of
strangulation and blood loss caused by
numerous stab wounds.’’ He also said

30 a

Se

The victim’s stolen vehicle was found behind a downtown Orlando apartment building.

Ward was beaten on the head and that the

: Slashes on her arms indicated she tried to

defend herself from her attacker. He set

‘the time of death as between 9:00 a.m.

and 10;00 a.m. It was an hour past mid-

associate removed the body from the

.crime scene.

Det. Scoggins followed the two to the
morgue, hoping to be able to get finger-
prints of the killer from the victim’s

corpse. His efforts failed: too much time .

had elapsed. Whatever prints may have
been left by Ward’s attacker had pene-
trated the skin and disappeared inside the
body. It was nearing 3:00 a.m. when the
investigator returned to the crime scene
to make sure everything was secured. He
then went home to bed.

. Despite the fact that it had been a long
night, Investigator Scoggins was back at
his desk at headquarters at eight o’clock
that morning. He dispatched other
members of the homicide division to the
Rosemont area to elicit information from
neighbors in the hope that someone had
seen of heard something that might point
to a suspect. As for himself, he decided

‘to start. his personal investigation with

step one: eliminating persons closest to
the victim.

‘ He drove to the junior, high school
where .the: victim’s husband worked to
check out the teacher’s accounting of his
activities and whereabouts on the prev-
ious day. Talks with the principal and
staff members confirmed everything
Ward had said. A check of the time ele-

ment that would have been involved in
slipping away from the school, driving to
the Rosemont house, stabbing: Ward to
death and getting back in time for his
next class proved beyond any doubt that
it was impossible for the husband to have
been involved in any way in Ward’s mur-
der. Scoggins had not had any reason to
consider Ward a possible suspect in the
first place; he had merely wanted to start
the investigation routinely at square one.

At 10:30, he went to the morgue to
witness Dr. Hegert’s autopsy. The
medical examiner confirmed his initial
findings as to the cause of death. and
added that the victim had also been
raped. Following the autopsy, Scoggins

entered the two knives used in the killing .

into evidence and had some strange hair
taken from the victim’s hand processed.

The lab. report on the hair sample
proved a disappointment. It contained
Caucasian head hair, pubic hair and cat
hair. ‘‘It was apparently grasped from
the carpeting in the dressing room rather
than from the killer’s head,’’:the, tech-
nician explained. ‘*Many people prob-
ably combed their hair in that room and,
as | understand it, Mrs. Ward had both a
cat and a dog. The hair sample has no
value; there’s no telling (from) whom or
what it came.’ ube ema 7a)

- “Great!?’ Scoggins said, “sounding as
though the report was anything but. ‘‘We
have no witnesses and no direction to go
in.”’

Interviews with Ward’s neighbors, all
of whom were stunned by news of the

slaying, produced information but no-

leads. One 28-year-old male neighbor
obtained permission to enter Ward's

house to take the victim’s 14-year-old
blind Pekingese dog to his home to care
for it. He said he hadn’t seen Ward’s
angora cat since Monday, which. also
happened to be is! last day he’d seen
Ward.

‘*Mrs.. Ward came over on Monday to
_have coffee with my mother,”’ the neigh-

bor said. ‘‘My mom has been sick and
my daughter has epilepsy, and Mrs.
Ward came over frequently to. counsel
Mom. She said prayer and a good diet
could help them both. She was a very
kind person; but she wasn’t well either.
You almost had to keep reminding her to
take care of herself.’’

A woman neighbor expanded on the
state of Carol Ward’s health. *‘She was
frail...had suffered with a kidney  ail-
ment for years. But she enjoyed garden-
ing and particularly cared for a climbing
rose bush on the trellis. near the front
door. Visitors to the house were few,

probably due to her health. I don’t think -.

she \
attac
TI
ued
slim:
follo
hold
a wo
War
mor
walk
rolle:
bell.

Lawm

e food
firmed
hier in
: at the

oggins

me for

re. He

wultiple

art and

internal :
) multi-

cal ex-

d been
_.defen-

id made
ler. She
‘ace, in-
eral and
at force
e contu-
ted, ‘‘It
en man-

ol’s

mn wagon
aper and
ed with a
re seen or

4 nay nee te mete

same day—Wednesday,

~” At the same time, Investigator McDo-
nald contacted the Coral Gables Police
Department in an effort to catch up with
Mark Fenton. Sergeant Robkin of the

- CGPD told McDonald that he would talk

with William Ward’s mother for in-
formation on Fenton and would follow

‘through for the investigation in Orlando.

At 5:30 p.m. Ward was once more

interrogated at the Municipal Justice

Building in Orlando. ‘In,response to
questioning, the teacher stated firmly
that Carol would not have permitted
Mark Fenton to enter their home be-
cause, ‘‘she was afraid of him.’’, Ward
explained that his family had had pro-
blems with Fenton because of his taking

advantage of his mother’s good will. He

added that there was hostility between
Fenton and him and he believed that his
_-wife would not have communicated at all
with him had Mark Fenton showed up at
their home.’ He added that Fenton had
never been to their residence.
Attention was turned to a beer stein
that had been discovered in the Ward
dressing room. When found, the stein

was dented and bloodied. It seemed -

possible that the assailant had used the
beer stein as the weapon in striking the
victim on the head. Ward told the police

that the stein was his and that he had |

always kept it on a shelf in his library.
~ A few minutes before midnight on this
September

 28th—Investigator Scoggins was called

“at home and informed that the missing
“vehicle belonging to victim Carol Miller —
~ Ward had been located in the rear of

an apartment complex on. West Concord
Street. The vehicle was being staked out
~ with the hope that whoever stole it (in all

» “probability the murderer) would return to

it. ~

t

. Scoggins immediately. took off and
met Sergeant Smith, Lieutenant Glass

a number of
uniformed patrol officers in the. vicinity » «.
jing out of ..

sight. | eet Bre %
The discussion at this meeting resulted».

in taking three people in the'area of the =.

abandoned car down headquarters for in-»

terrogation. These people ‘stated that -
they: had noticed the vehicle after it had
been parked near their homes*on‘Tues-
day, September 27th, ‘sometime in the...
evening.’’ This, of course, was the day —
of the murder and the killer probably left

it after committing his heinous crime. '
The persons interrogated said that they,
did not report the vehicle to the-police
immediately because it was similar. to
another vehicle that was frequently .
parked in the same area. They added that
when it was broadcast over TV with the

. f tagph yee bet
license number made known they real-

ized that this station wagon was the one
sought by the police and they according-
ly notified headquarters. Eis bc a

Detective Scoggi

ns, after. dismissing
ter. dismis:

‘ ; Pt pe
All-out investigation

¥

‘Department, asking him to. bring his

4 tempt to run a track from‘ it. The dog

n‘end ed with arrest of |

the three who rad reported the ocation
of the car, contacted Deputy Bernie
Greer of the Orange County Sheriff's

\

bloodhound ‘‘Pepper”’ to the car and at-

seemed to pick up.many scents from and
around the’car and followed some of
them, but ultimately lost these tracks and
the results were negative.
"The neighborhood was also canvassed
to see if any information could be de--
veloped on the person who had driven
the victim’s station wagon to that loca-
tion. Technicians came to the scene and —
photographed the vehicle. Thefollowing  ~
day Scoggins had the wagon taken in for
processing} #f 8
As this was all being done, Scoggins
met with William Ward again at his
home; ‘it was about 11:00 a.m. Scoggins
asked about’ stolen property from the
home, but except for some papers that
might haye been taken from a safe in the

(is --»4 (Continued on page 50) *
, a“ Oa ee: : Mh %

2 th ie

Id Bertolottl.
Master Detective


determine the precise house referred to
by the man. :

He and Scoggins drove out to the
Rosemont area and although they went
through the entire neighborhood, they
were unable to locate the woman who
was purportedly seen talking to some
black man in the neighborhood on the
day of the crime.

' Later that day the two officers re-
turned to Rosemont and went through the

neighborhood again, attempting to find

the woman. They were not successful,
but they left cards everywhere in the de-
velopment asking that persons reading
the cards call the police station with any
information that they might have.

The following day, Saturday, October
Ist, Scoggins received a call from the
woman he had looked for so diligently.
She was indeed the person to whom the
man had referred, but she could not re-
call talking to any black man on Tues-
day. She assured the officer that the only
man that she had talked to was her
gardener, who was white.

For the next two days the investigation
was mired down. Scoggins was trou-
bled. He told his fellow detectives that
they simply had run into the proverbial
stone wall. On the morning of Monday,
October 3rd, he sat at his desk, slammed
his fist down on it, and snapped,
“*There’s got to be some answers, some-
where!”’

By this time, William Ward’s house
and his wife’s car had been returned to
him. Also.on this date, Carol Ward was

cremated after services were being held

for her.

Meanwhile, Scoggins began thinking
that Ward, being a school teacher, might
have had some enemies at the school that
he was not aware of. He followed that
through by contacting the school offi-
cials again and secured a list of students
who were absent from school on the day
of the killing. Nothing productive came
out of this effort. .

But, later that morning, at about
10:15, Officer Jim Bishop, who con-
ducts a Crimeline Program that uses the
community to respond to crimes with
evidence for which they can be rewarded
as much as $1,000 (while remaining an-
onymous), received one of these calls.
Bishop immediately contacted Scoggins

and told him that he had a woman on the.

line who nervously stated that she be-
lieved that her boyfriend, ‘‘may have
been involved in the Rosemont homi-
cide.”’ j

Scoggins rushed to the Crimeline
office and spoke to the woman on the
telephone. Although she was reluctant

52 Master Detective

‘and consumed with fear, Scoggins per-

suaded her to allow him to pick her up so
they could talk. A location was decided
upon and Scoggins raced off to meet the
woman at the appointed place. She wil-
lingly returned to the Municipal Justice
Building with him and agreed to give a
sworm statement.

After her rights had been read to her,
the woman began to talk. It was clearly
evident that she was frightened and
apprehensive. It was obvious that she

had come to this point wanting to do:

what she knew in her heart was right, but
she also was consumed with misgivings.
She stated that although she was white
she was living with a black man. And she
revealed that his name was Anthony Be-
rtolotti. She told Scoggins that she had
met her boyfriend while he was serving
time in prison in Belle Glades, Florida in
October of 1981. When Bertolotti got
out of prison in December of 1982, upon
her invitation he joined her and her 19-
year-old son in Orlando. The three of
them had been living together since that
time.

Scoggins watched the woman as she
carefully chose her words and spoke with
slow deliberation and thought. Scoggins
asked her why she felt that Anthony Be-
rtolotti was involved in this homicide.
She recalled that Anthony had left their
home on the morning of the 27th of Sep-

tember for work at a local golf course on .

Curry Ford Road. Somehow he missed
his ride with a fellow worker, which
caused him to report to the employment
agency that had been sending him out on
various temporary jobs.

While ‘Anthony went about his busi-
ness, his girlfriend did some morning
errands and returned home about 11:15
a.m, to find him sitting at the bottom of
the steps to their apartment, waiting for
her. She said that there was something
particularly strange about Anthony that
morning and, more importantly, he had
money. ‘‘At least thirty dollars.’’ She
further stated that during the course of
the day Anthony had bought some pot
and some groceries, and also made a $20
payment on a TV set they had in their
apartment.

Scoggins encouraged her to go on and
she said that she thought he was acting
very suspicious and one thing that struck

“her was his intense interest in the news

broadcasts which were devoting so much
attention to the Rosemont homicide. She
told of his reaction when he heard one
broadcast that went into minute detail
about the finding of Carol’s car. When

that bit of news broke, he became “‘very
touchy,’’ she said.

Scoggins was satisfied that the break
he had worked so diligently to achieve
had finally come to him. He encouraged
the woman to continue her story that had
opened up the way to the solution of the
crime.

Responding, she said that she had
asked Anthony where he actually had
worked on that morning of the 27th,
since he had missed his ride to the golf
course. And he told her that he had gone
to a job in the Lockhart area. Hearing

that the job was in this area she was .

shaken, as she realized that Rosemont
was not far from the Lockhart area. Her
worst fears intensified. She was already

- certain that Anthony had to be involved,

but she refused to allow herself to believe
it. She was torn; she was fearful. When
she asked Anthony to confirm for her
that Rosemont was close to Lockhart, he
was infuriated and demanded to know
why she would ask such a question.
There were other things she told Scog-
gins and again the investigator asked her
in acalm way to goon with whatever she
had in mind, whatever she might have
observed. There were small beads of per-
spiration on her forehead and she repe-

-atedly wiped the damp palms of her

hands together, indicating her nervous-
ness, but she wanted to continue.

She now turned to the clothes Be-
rtolotti was wearing when he left the
house on the morning of the murder. She
said that he had ona pair of Lee jeans and
a dark blue pullover shirt. She stated that
she had not seen these clothes since—
they just ‘‘disappeared.’’ She said that
she asked Anthony about the clothes but

he gave her some kind of a meandering °

answer about misplacing them—or
something.

With all of this story. revealed she
crossed the line of revealing even more
intimate details of her life with Anthony.
She stated that her fear was great because
she was aware that he had a previous
record of sexual assault, burglary and
aggravated assault. In addition, theirs
had been a generally happy life with very
heavy daily sex, but since the 27th every-
thing changed abruptly and they had had
only one intimacy together.

At the conclusion of this sworn state-
ment, Investigator Scoggins proceeded
to get the arrest histories on Anthony
Bertolotti from Dade County (Miami),
Florida which produced mug shots, rap
sheets, fingerprints and other materials.

Bertolotti’s day of the 27th was then
retraced through the employment agen-
cy and the places of employment where

—

<a

Settee OREN


he was sent. Scoggins had everything
organized into a precise continuinty of
time with the movements of one An-
thony Bertolotti.

For the next 24 hours the de-*

velopments of the case: seemed to spin
off into various directions. One impor-

tant fact revealed was a disclosure by .

the sister of Anthony’s girlfriend, who

told Scoggins that the suspect had admit- ,

ted to his girlfriend that he had murdered
Carol Ward.

From this point on, the direction of the
case was to apprehend Bertolotti. With
the description of the suspect saturating
the media, the entire community was on
the alert for him. ‘

In an astonishing development, Offi-
cer Rick deTreville, a public relations
officer of the Orlando Police Depart-
ment, spotted the suspect in downtown
Orlando and in an attempt to apprehend
him, wrestled him to the ground. It was
an unexpected procedure for an officer in

public relations, but deTreville, realiz-
ing whoithe man was, unflinchingly hit
him with a flying tackle and held him
until police backups arrived to deliver
him to the Municipal Justice Building.

From this point on, Bertolotti was run
though the procedures of being charged
with the murder. Under interrogation he
admitted to the crime, providing full de-
tails that had been lacking until his girl-

friend told the police what she knew.

Scoggins delivered the findings of his
investigation to State Attorney Robert
Eagan, who appointed Assistant State
Attorney Ray Stark as the prosecutor
when the case went to court. Stark did an
inspiring job. But because this particular
killing had so upset the Central Florida
community, Robert Eagan sat through
and guided the prosecution.

On the final day when the closing
arguments were to be delivered, Eagan
personally delivered the closing.

With dramatic verve, Eagan portrayed

the killer as one who, ‘‘stabbed and stab-
bed and stabbed and stabbed until his
knife broke, whereupon he went into the
kitchen and got another knife and he
stabbed and stabbed the helpless victim
until she was dead, dead, dead.’’ Eagan
turned from the jury? walked away and
sat down. .

Anthony Bertolotti was convicted of
murder in the first degree and on Mon-
day, April 9, 1984, he was sentenced to
die in the Florida electric chair.

For her vital contribution to the solv-
ing of the murder, Jim Bishop and his
Crimeline organization granted Anthony
Bertolotti’s girlfriend a $1,000 reward.

wy "

Was She Butchered
By Lusting Psycho?

vacant unit that day, and he had re-
mained on the location while his boss
had gone on to another spot to look into
something else.

When investigators finally caught up
with Holcomb, he readily admitted that
he was working on the scene and that he
had in fact seen Tanea Rothschild that
day. He told the sleuths that he asked her
if he could use her telephone in order to
call his wife, and she had let him into her
apartment for this purpose. When he was
finished, he said, he left the apartment
and went back to his job next door.

The police asked the apartment man-
agement if they could take a look around

the vacant apartment and they were let .

in. While they were there, a uniformed
officer, George Hokemeyer, who was
the first to respond to the scene the day
before, noticed a short piece of white
cord hanging from the traverse rod over
one of the windows. The cord had been
cut or was shortened considerably to
only three inches below the rod. But its
similarity to the cord found beneath the
victim’s neck was what seemed most
curious. In any case, it was an interesting
lead to follow.

There was no doubt that the piece of
cord dangling from the rod was the same
make as that used to strangle Tanea

54 Master Detective

Rothschild—that is, they were both
quarter-inch pieces. While evidence
technicians began to examine this matter
more carefully, Detectives Ramsey and
Ziegler decided to track down Kenneth
Holcomb’s co-worker to learn if he could
shed any light on the situation.

The other painter identified himself as
the senior partner of the two-man team.
He told the sleuths that he had dropped
Holcomb off at about 8:30 in the morn-
ing, and he had told Holcomb that he
would return about noon to check up on
his progress. When he did return and
inspected the vacant apartment he saw
that Holcomb had finished the bulk of the
painting and just had to do some-touch-
up and spackling work. The senior pain-
ter asked Holcomb if he wanted to go to
lunch. with him and Holcomb said he
didn’t.

Shortly after 1:00 in the afternoon,
when the painter returned with spackling
compound for Holcomb, he didn’t find
him in the apartment and he looked for
him for the remainder of the hour. Fail-
ing to find him, he left.

When Detectives Ramsey and Ziegler
returned to talk once again with Hol-
comb in order to learn what he was doing
during the time between 1:00 and 2:00 in
the afternoon, the 27-year-old painter re-
plied that he was talking to a couple of
maintenance men from the complex.
When he came back to the apartment
after the older partner had gone, he said
he used the spackling compound that was
left for him and also tried to put a second
coat of paint on in the bathroom. When

‘he was finished, he said, he took his gear

and set it out on the lawn outside the
apartment building.

While he was outside, he said,. he
talked with a lady who lived in one of the
apartments and had mentioned to her that
if his partner did not arrive at three
o’clock as he expected, he would have to
make arrangements for another ride.
Holcomb mentioned that his partner had
said something about coming back about
that time but he was not sure.

The investigators wanted to verify
Holcomb’s account, but at least in one
aspect they found this very difficult to
do. Holcomb said he was talking with
two maintenance men between one and
two, at about the same time his partner
had returned to deliver the spackling
compound. But the sleuths were unable
to find any maintenance men who had
actually admitted to talking to him.

They did, however, find the woman
neighbor who had talked with him out-
side later in the afternoon. This person
said that while she talked with him, he
appeared nervous and was smoking
rapidly. Because she felt uncomfortable
with him, the lady told investigators that
she brought her child inside with her
when their conversation had ended.

The sleuths also succeeded in. finding
another neighbor who drove up in her car
between 2:30 and 3:00 p.m. Holcomb
seemed to be watching her closely, she
said, and, as she got out of her car and
walked into her building, he asked her
what time it was and whether she had
been home most of the day.

=


:%

that it was the result Of some drunk’com-
‘ing home: and finding | he had lost his keys
_ to the apartment. It was not the only door
in wes with a panel smashed in.

f oa him later than his employer,
Pierre  Lecompte.’ From the appearance
of the: . apartment), it seemed that Tarot
had come home not long after encounter-
ing Lecompte, had made his supper, had
eater it; washed the. dishes and had still
“been: up reading ¢ a magazine when he was
“summoned to. the door. He had not
already been in bed, for the bed was still
_made and the ‘body: had been found clad
in normal houseclothes. ;

"\ "Maybe we should send a circular to

the area to see if they

_ the other towns in.t
Q ’ mut-

oe io a phot

/Lubinskiee or 1 Luboski: who shot, a North
“latsean a couple'of weeks ago. Didn’t
kill’ ‘him, so’ we. ‘didn’t get it, but the
circumstances were ‘a little strange, The

North: African said it was racist; of ©
- course, but Lubinski.said it wasn’t. He | ;
was. looking for : somebody who had »

, allegedly. taped | his wife.’

is it happen?’

““Well,, that certainly wouldn’t. hae

een Tarot,”” said the inspector. ‘ When
4, $e }

ape ‘don’ t' ueve ‘for certain; "ts “the

" sergeant Teplied\, “Just a minute and. 2! ll

NA

+ call up: ‘and. get, the details.’’ cman ts
A few. moments later, the Grecant put
‘down the telephone 2 and turned to look at. .

‘the inspector \ witha very curious expres- "
; would be brought in to make a statement,

en any case, but it was: in support of her

sions. It. happened. on the morning of
‘December. seventeenth at approximately
_one-fifteen a.m.;!’she:said. “‘The scene

was the Tue Fernand David and"the —

l He =n Her:

‘arresting officers : confiscated a 12-gauge ah

shotgun . among; ‘other weapons at; the
time ‘of the arrest: The correct name is

_ Lubiszewski—Michel Lubiszewski. +
-He’s been released to, await trial. Do you ¥@
want.to f

talk to. ‘him?’

‘said the: inspector.

¢ ‘Not. just: yet

‘? ‘The, first thing [want to know is—what ©

was the connection between this Lubis-
-. zewski and Tarot?,Better yet, what was ©

the relationship; between Mrs. Lubis-
zewski and Tarot? Don’t stop at anything
until you get it. I think we’ve found our
murderer.” |

If, Inspector ST aiane had found his

iurderer, he was not going to be able to

rove.it very easily. A massive in-
vestigation, into‘ the background of the
Lubiszewskis produced nothing more

ttempt to trace Tarot’s movement "4
his death turned up no,one who

am “ ”

‘neither one of them had ever so much as

chid:eyes on Jean-Jacques Tarot.

“~The inspector was: not discouraged,

‘however, for he had, by now, uncovered
a.connection, although it was secon-

<dhand. Youssef, the Moroccan waiter
who-had allegedly raped Mrs. Lubis-

zewski prior to her marriage, had been at
the same restaurant where Jean-Jacques
Tarot was employed as a waiter and at
the’'same time. They . chad known each
other and in August. of 1983, Youssef
had moved briefly to Tarot’ Ss apartment.

He’ ‘had stayed there’ ‘for several days
“while looking for an apartment of his

own and it was apparently during this
period that he had ‘tricked Catherine
Lubiszewski into coming to the apart-
ment where’she had been raped.

on With nothing: further uncovered,

Michel Lubiszewski was taken into cus-
tody and formally charged with the mur-

“der of Jean-Jacques Tarot. He denied it,
expressed the utmost -astonishment and

said that he had never met anyone by that
name in his life. He had read of the
murder i in the newspaper, but the name

had‘ meant nothing to. him.

» Asked to account for his movements
on the evening of the crime, Lubiszewski
made a statement,yery similar to the one
that he had made at the time of his arrest
‘on the assault with the.deadly weapon
charge. The inspector | was not satisfied.
Lubiszewski, he’ said, was leaving out
‘something. If he insisted on being eva-
‘sive, the inspector.-would have no choice
‘but to place Mrs.:Lubiszewski under arr-
“est and charge her with concealment of a
felony so that she could be interrogated.
In the end, Catherine Lubiszewski

eS

husband’s assertion that he had no idea
that the man he had killed was Jean-

Jacques Tarot or even that he had killed =F
‘ anyone at all. He was guilty of homicide

without even knowing it. ..

Taken separately, Michel’s. and
Catherine’s statements, checked in every
detail. After having failed to run to éarth
the elusive Youssef at the restaurant,
Michel had insisted that Catherine had
take him to the scene of the rape—the
apartment which both he and Catherine
thought was occupied by Youssef.

They had gone to the third floor where
Michel had hammered violently on the
door and, in an insane rage, had fired the
shotgun the minute they heard someone
in the hall on the other side, * = *

Although mortally wounded ‘and. only

seconds from death, Jean-Jacques. had

called out in a completely normal voice,
‘It’s not me! I swear I had nothing to do
with this!”’

Both Lubiszewskis had believed that

he had not been hit and, realizing that the ~

voice was not that of Youssef, had come
to the conclusion that Youssef had
moved and had gone away. |

Michel Lubiszewski is now F awtide
trial on an unspecified charge of homi-
cide. It is very difficult to say what a jury
will make of this'‘case where the murder-
er did not know that he was one. Sim

library there did not seem to be anything
missing. When. the teacher was asked
“about cash, Ward told Scoggins that
.Carol probably had $30 or $40. He said
that she would have written a check for
the groceries. Her checkbook confirmed

‘that she had done exactly that. But there .

‘was no cash in her wallet. It was pre-
sumed at this point that the killer had
‘probably taken her money, too.

At 3:00 p.m.,; Scoggins held a meeting

_with all of the investigators working the

case with him. This meeting produced a

“review of a similar crime that had been

‘than. the gimost cmp certainty that 4 jcommitted i in the general neighborhood

ry bis sig vese sehen pauses se

of Rosement, but there was nothing that
linked the two crimes. Although Scog-
gins and his men had been digging into
this mysterious and vicious killing,
following every conceivable lead, there
was little room for optimism. The only
thing they had at this time was the recov-

aa

ery of the Ford station wagon, and so far

that had been unproductive.

On the last day of September, Friday
the 30th, at 8:00 a.m., another meeting
was held at the MJB. The discussion
focused on methods to be used to get
some fingerprints in this case.

Then at 8:30 a.m. that same day, In-
vestigator Keefe met a man who revealed
that on the morning of the murder he had
seen a white woman talking with a black
man three or four houses away from the
home of the victim. Keefe was able to


fla.) “BLACKWELL vy. STATE” 135

He was recaptured ‘in the latter part of
May, and a special term of court was called
for the 2d of July to try the cause.

The revolting ‘¢rime, the escape of one of
the prisoners, and: the efforts made to re
capture him ' by the use:'of dogs obtained
from various persons in the county, all tend-
ed to give great publicity to the offense, and
to cause public sentiment to run high against
the persons charged with the crime. In: this
state of the public mind, of which it is charg-
ed the circuit judge had knowledge, he call-

‘ed a special term of court to try the prison-

ers, although time for convening the regular
term -of ‘court for Onsloas® county was: only
a ‘short time off.

It is apparent and. quite natural: feat a
strong public sentiment, hostile: to the de-
fendants, existed in Okaloosa. county, and
that their speedy trial was demanded by the
people, in order that they might be, punish-
ed for the crime they were charged with
having committed, and the defendants and
their attorneys’ alleged in their affidavits
that the circuit judge, without other or fur-
ther reasons, yielded to‘ public clamor and
called the special term to try the prisoners.

‘As was said in the case of State vy. Grin-

stead, supra, ‘the circuit: judge:;may have
“believed that he could: act ‘without bias. or
prejudice on the .trial,” but the defendants
did not believe that he could, and: they gave
what seems to us’ to’ be sufficient reasons
for their belief, and the court erred in re-
fusing the motion for change of venue.
- The sixth and seventh assignments:of error
relate to the rulings of the court below in
excusing certain jurors upon the eipreuge
of the state for ‘cause.

It may be that these venivemen were quali:
fied, and should not have been excused; but
as the trial court has:a large discretion in
the matter iof’ excusing jurors, and as it
does not appearthat, because this was done,
the defendants were finally forced to accept
objectionable jurors, we find that these as-
signments are not sustained.

[4] The eighth assignment ‘is predicated
ona remark of the assistant state attorney
in the examination of a juror on his voir
dire, who was ‘being interrogated about his
mental attitude on the question of: finding
a verdict of guilty where the penalty is hang-
ing, when the following occurred :

“QO. I mean, have you any. prejudice against
bringing in a verdict of guilty, where the penal-
ty is hanging? A. There is nothing. to prevent
it, if they are guilty, as far as that is concerned.
Q. If they are guilty, you would have nothing
to do with the penalty. That is up to the judge.
A. Yes; that is up to the -judge., Q. And the
pardoning board?

“Mr. Laird: We object to'the remark of the

counsel that it is up to the pardoning board.
“Court: I think he has a right to ask the

question.

“Mr, Laird: We object to the statement here
at this time that it will be up to the pardoning
board.

“Court: The objection is overruled. _ .

“Mr. Laird: The defendants except.” ~

The assistant state attorney must have
deemed it in the interest of the prosecution
for him to state in the presence of the venire-
men, from whom the jury to try the prison-
ers was to be chosen, that the future action
of the board of pardons was entitled to con-
sideration by them, else the question would
not have been asked, and the court would
not have refused to strike it from the record
on motion of defendants’ counsel. If it had
been a mere irrelevant remark, not intro-
duced to have any effect on the minds of the
jury, the lower court would have stricken
it from the record...It must therefore be
accepted that the assistant state attorney
had a reason for putting the probable action
of the board of pardons before the jury, and
the. judge considered the reason a good one,
and by his ruling gave it the force and
weight of his approval.

It is argued by the defendants that the
purpose of the statement by the state at-
torney was to bring to the attention of the
jurors the fact that the. board of pardons
had recently commuted to life imprisonment
the sentence of two prisoners who had been
sentenced to death for a murder. committed
near the scene of the Davis murder. If so,
it was an improper remark, and should have
met with the condemnation of the judge.

If, however, it was the assistant state
attorney’s purpose to fix in the minds of the
jurors the thought that, if they erred in
finding a verdict of guilty, the board of
pardons might or would correct it, it was
even more objectionable... That that thought
was probably in the mind of the assistant
state attorney seems probable from the er-
ror complained of in the twenty-second .as-
signment, which, like that in the eighth,
is predicated upon the refusal of the trial
judge to strike from the record an objection-
able remark by the assistant state attorney,
by which he called to the attention of the
jury that, if they made a mistake in the
verdict, some other tribunal could correct it.

[5]. In the bill of exceptions the following
facts appear: The assistant state attorney,
in the course of his argument to the jury,
said:

“Tf there is any error committed in this case,
the Supreme Court, over in the capital of our
state, is there to correct it, if any error should
be done.

“Mr.; Laird: If the court please, we object.

“Mr. Stokes: He brought it out.

“Mr. Laird: I said he always did make that
argument, and I didn’t think the court would
permit him—it is an unfair argument to the
ury
: “Bhe Court: I think it is legitimate argument,
after what has been said by counsel on the
other ‘side,

“Mr. laird: Note an- exception. “J

The purpose and effect of this remark was
to suggest to the jury that they need not be
too ‘greatly concerned about the result of
their deliberations, because, if they commit-

ted an error in forfeiting the lives of the’

prisoners, the Supreme Court could correct

*
ee
.


REMI mnainteona oe 9s iiss bi Sideline

Fla.) ‘BLACKWELL v. STATE 732

their certain knowledge’ the sheriff of the
county was a'‘very popular man, of vast
and wonderful influence, who had publicly
proclaimed on many different occasions that
the defendants were guilty, and in this way
he had exercised a wonderful and undue in-
fluence over the minds of the mass of the
citizens of the county, and had aided in caus-
ing the people generally in the county to
hate and despise the defendants and believe
them guilty. They also swore that they be-
lieved that, if they were given a reasonable
time to go out and see the people and talk
with them, they could secure a very large
percentage of reputable citizens of the coun-
ty to make affidavits to the same effect as
their affidavits. Against these specific alle-
gations of fact the state produced an affida-
vit by the clerk of the circuit court, who
stated that he had talked with the people
residing in almost every section of Okaloosa
county, and that in his opinion the defend-
ants could receive a fair and impartial trial
in that county. Mr. J. H. Richburg and Mr.
Sutton, the sheriff, in their affidavits stated
that in their opinions the defendants could
get a fair and impartial trial in the county.
Mr. Sutton did not deny the allegations in
the affidavits of Mr. Laird and Mr. Rice as
to his great influence in the community, or
that he had proclaimed in all parts of the
county his belief in the guilt of. the pris-
oners, and that his attitude towards them
had aided in causing the people generally in
the county to hate and despise the defend-
ants and believe them guilty.

The allegations in the affidavit of the de
fendants that they were odious to the people
of Okaloosa county, that the prejudice
against them was very great, that a fund had
been subscribed to by the citizens of the coun-
ty and collected by one Moore, a deputy
sheriff, to employ additional counsel to assist
the state attorney to prosecute the defend-
ants, and the allegations in the affidavits of
Mr. Laird and Mr. Rice that, on account of
the vast. and .wonderful influence of the
sheriff, the people of the county were greatly
prejudiced against the defendants, and that
the sheriff, by proclaiming his belief in the
guilt of the prisoners, had caused the people
generally to hate and despise the defendants
and believe them guilty, were not traversed
by the state, and the only thing before the
court against these very strong and positive
declarations, showing such prejudice as
would preclude their obtaining a fair and
{impartial trial in the county, were the state-
ments of three persons that in their opinion
the prisoners could get a fair and impartial
trial in the county.

The affidavits of the defendants and Mr.
Laird and Mr. Rice contain allegations of
fact upon which they base their opinions that
a fair and impartial trial could not be had,
and against these were placed the mere opin-
fons of three’ persons. that. the prisoners
eruld get a fair and impartial trial. Not one

denies the allegations of fact in the affidavits
produced by the prisoners. If, as stated in
these affidavits, the sheriff was “a popular
man in the county,” and “of vast and wonder-
ful influence,” and had “talked and publicly
said on many different occasions that the
defendants were guilty,’ and that “he had
thereby caused the people of the county to
hate and despise the defendants and believe
them to be guilty,” and a fund had been “so-
licited from the people of the county by a
deputy of the sheriff for the purpose of
employing counsel to assist in the prosecu-
tion” of the defendants, which, as the rec-
ord shows, was subscribed to by a number of
persons, and that three of those on the special
venire were subscribers to the fund, can it be
said that the defendant could obtain a fair
and impartial trial in the face of such con-
ditions? As the court below decided that
question in the affirmative, and as a jury was
obtained, each member of which swore that
he was unprejudiced, and as the case will
have to be reversed on other grounds, we are
not inclined to disturb the court’s conclusion
upon that point.

[2] The application for a change of venue
contained the further ground of the prejudice
of the judge. This is a very serious charge,
and one not apt to be lightly made. The
records of this court do not show that this
provision of the law has ever before been
invoked by a defendant in a criminal proceed-
ing. The statute seems to contemplate that
all that it is necessary for a defendant in a

the judge is prejudiced against him, and it
then becomes the duty of the judge to trans-
fer the cause to the next nearest circuit.

The sections of the law governing changes
of venue are as follows:

“Judges of all courts in this state shall have
power and it shall be their duty to grant chang-
es of venue of all cases pending before them,
civil or criminal, under the circumstances and
in the manner hereinafter provided by this ar-
ticle.” Section 1469, General Statutes 1906.

“Such change shall be granted if either party
in any civil case, or the defendant in any crim-
inal case, shall make application therefor on
oath stating that he fears that he will not re-
ceive a fair trial in the court where the suit
is pending, on account of the prejudice of the
judge of the said court against the applicant or
in favor of the adverse party, or on account of
the adverse party having an undue intluence
over the minds of the inhabitants of the coun-
ty or justice’s district in which the case is
pending, or on account of applicant being so
odious; such application shall fully and dis-
tinctly set forth the facts upon which the same
‘a eo Section 1471, General Statutes

“In all applications for change of venue, ex-
cept when made upon the grounds of prejudice
of the pending judge, the adverse party shall
have the right to traverse the allegations of
the application, and the court shall hear the
evidence produced by either party and shall de-
cide the matter accordingly.” Section 1474,
General Statutes 1906.

“Whenever it shall be made to appear to the
satisfaction of the presiding judge of any ot
the circuit courts of this state that the venue
of any cause, then pending in such court, should
; be changed either because a fair and impartial

criminal case to do is to make afltidavit that |


732: 79 SOUTHERN REPORTER (Fla.

consideration. to such remarks, and the refusal

of the court to do so is reversible error.

5. CRIMINAL LAW. @==725—Conpvuct or TRI-
AL—ARGUMENTS OF COUNSEL,

It is improper for counsel, in his argu-
ment to the jury, to say, “If there is any error
committed in this case, the Supreme Court, over
in the capital of our state, is there to correct
it, if any error should be done,” as the effect
of this would be to cause the jury to lessen
their estimate of the’ weight of their responsi-
bility, and the refusal of the court to strike
the same from the consideration of the jury
is reversible error.

6. CRIMINAL LAW €==725—CONDUCT OF TRI-
AL—ARGUMENTS OF COUNSEL.

Language used by counsel in his argument
to the jury, tending to influence them to shift
the burden of their responsibility from them-
selves to the Supreme Court, is improper, and
when called to the attention of the trial judge
should be stricken from the consideration of
the jury, and the refusal to do so is reversible
error.

7, CRIMINAL Law €=°730(1) — CoNnbucT OF
TRIAL—REMARKS OF COUNSEL.

Remarks made by counsel in his argument
before the jury, prejudicial to the defendants
and concerning matters which are not proper
for the jury to consider when they retire to de-
liberate upon their verdict, should be stricken
by the trial judge, and the refusal to do so,
when brought to his attention, is reversible
error.

8. Jury €=-97(8)—QUALIFICATION OF JUBORS
—INTEREST IN RESULT.

One who contributes to a fund to employ
an attorney to assist in the prosecution of a
person charged with an offense is disqualified
to sit as a juror on his trial for such offense.

(Additional Syllabus by Editorial Staff.)

9. CRIMINAL Law €=338(7) — EVvIDENCE—
RELEVANCY.

In a prosecution for murder, it was error
to admit testimony of a witness as to an at-
tempt by defendant, two i before the mur-
der, to have a dog poisoned ; such testimony be-
ing irrelevant.

10. CriminaL Law @==450 — EvIDENCE—AD-
MISSIBILITY.

In a prosecution for murder, it was error
to admit evidence by the sheriff that in his
opinion there was sufficient evidence before the
jury to convict.

Whitfield, J., and Simmons, Circuit Judge,
dissenting.

Error to Circuit Court, Okaloosa County ;
A. G. Campbell, Judge.

Will Blackwell and another were convict-
ed of murder, and they bring error. Re-
versed.

H. S. Laird, of Pensacola, L., W. Nelson, of
St. Augustine, W. W. Clark, of Milton,
and W. J. Rice, of Crestview, for plaintiffs
in error. Van ©. Swearingen, Atty. Gen., and
Cc. O. Andrews, Asst. Atty, Gen., for the
State.

BROWNBE, C. J. Will Blackwell and
Robert Blackwell, brothers, were jointly in-
dicted in Okaloosa county in two separate
indictments for the murder of M. M. Davis
and his wife, Nancy Davis, and on May 7,
1917, were put upon trial under the indict-
ment charging them with the murder of

Nancy Davis. During the course of the trial
the defendant Will Blackwell escaped from
custody, thereby necessitating an order of
mistrial. After a lapse of about three weeks
he was recaptured, and on July 2, 1917, the
defendants were placed on trial for the mur-
der of M. M. Davis, were convicted of mur-
der in the first degree, and sentenced to
death. The case comes here for review on
writ of error.

[1] There are 23 assignments of error,
some of which have been abandoned, and
others it will not be necessary for us to con-
sider. The second assignment is that the
court erred in denying defendants’ motion
for a change of venue. The grounds of the
motion for a change of venue are as follows:

“(1) That they fear that they will not receive
a fair trial in the circuit court of the First
judicial circuit of Florida, in and for the coun-
ty of Okaloosa, or in any other county within
said circuit, on account of the prejudice of the
judge of said court against them, the said Will
Blackwell and Robert Blackwell.

“(2) On account of the adverse party, to wit,
the state of Florida, by and through its ofli-
cers, namely, the sheriff and his deputies, hav-

ing an undue influence over the minds of the
inhabitants of Okaloosa county, Florida.

“(3) Because the applicants, the said Will
Blackwell and Robert Blackwell, are so odious
in the minds of the people of Okaloosa county,
Florida, and the adjoining counties to Okaloosa
county, Florida, in the First judicial circuit
of Florida, on account of the rumors and re-
ports of their guilt of the crime with which
they are charged, that it will be impossible for
them, or either of them, or that they fear it
will be impossible for them, or either of them,
to as a fair and impartial trial in said
court.”

Both the defendants made affidavits in
support of the motion, and Mr. Laird and
Mr. Rice, attorneys for the defendants,
swore that the crime charged, the unprovok-
ed and deliberate murder of a very old man
and his aged wife, was of such heinous na-
ture that the citizenship of the county must
necessarily be wrought up to a frenzy and
great anger towards any one so unfortunate
as to be charged with it; that the defend-
ants were confined in jail in Pensacola, and
were not brought into the county in which
they were to be tried until 9 o’clock in the
morning of the day when the motion was
made; that after the prisoners were brought
into court, and arraigned, the attorneys for
the defense were given 15 minutes to inspect
the indictment and confer about the case;
that after the presentation of their motion’
for a change of venue they were given until
2 p. m. of the same day in which to prepare
affidavits in support of their motion; that
the defendants during that time were hand-
cuffed together and closely guarded, so that
they nor either of them could talk with any
one about the case; that they had no kins-
folk or friends to go out and see any one
and get affidavits for them. These attor-
neys, officers of the court, also swore that to

@=>For. other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


| |
Hl |
tail I 134 79 SOUTHERN REPORTER (Pa.,

trial cannot be had in the county where the
crime was committed, or because it 1s imprac-
ticable to get a qualified jury to try the case in
the county where the crime was committed, or
where it appears from the examination of the
books of registration: of the county, that there
are not a sufficient number of registered voters
to form a grand and petit jury, it shall be in
the power and discretion of such judge to change
the venue of such case, from the circuit court
of the county where such cause is at the time
pending to the circuit court of any other coun-
ty within the same circuit.” Section 3997, Gen-
eral Statutes 1906. ,

Section 1471 contains three separate
grounds for a change of yenue—the prejudice
of the judge against the applicant or in favor
of the adverse party; the undue influence
over the minds of the inhabitants of the
county, by the adverse party ; and the odi-
ousness of the applicant. After enumerating
these grounds, the statute provides that the
applicant “shall fully and distinctly set forth
the facts upon which the same is founded.”
It seems quite clear that it is the intention
of the law that no discretion be left with the
judge when the application is based upon his
prejudice. ;

In the case of State v. Grinstead, 10 Kan.

App. 78, 61 Pac, 976, the court, in discussing
the mental attitude of a trial judge whom the
defendant in a criminal action charged with
prejudice, said:
-“He may have believed that he could act
without bias or prejudice in the trial, but it
would be an experiment dangerous to the rights
of the defendant to permit him to make the
effort.” ‘

That was a case where the defendant was
on trial for criminal libel.. In the instant
case the court: was experimenting with the
lives of two men, which were forfeited by the
jury. | M bors

In Indiana the prejudice of the judge is
made a ground for a change of venue, and in
a long line of decisions it is held that, when
an aflidavit is made charging the trial judge
with prejudice, it is imperative for him to
grant the change. Witter v. Taylor, 7 Ind.
110; Shaw v. Hamilton, 10 Ind. 182; Shat-
tuck v. Myers, 13 Ind. 46, 74 Am, Dec. 236;
Goldsby v. State, 18 Ind, 147; Mershon y,
Stute, 44 Ind. 598; Manly v. State, 52 Ind.
215, ; ,

{3] But in the instant case the defendants
went further than was apparently. neces-
sary, and stated:

“That the judge of the said county, without
other or further reason than that the people of
the county of Okaloosa demanded speedy justice
and no delays of the law, acting at the behest
of public sentiment, has called this special term
of court to try the said defendants, when accord-
ing to the statutes of the state of Florida the
regular fall term of said court would commence
on the last Monday of August of this year.”

This is a charge that the judge in calling
the special term, acted at the behest of pub-
lic sentiment, and without any other or fur:
ther reason than that the people of the coun-
ty demanded “speedy justice.” It is clear
that what was meant by this statement is

the defendants, and the court, yielded to that,
demand. We cannot divest ourselves of the,
knowledge which we possess that people do,
not demand a speedy trial of persons for
the purpose of acquitting them, nor does the,
demand for speedy trials exist in communi.
ties where there is no strong feeling against
men charged with crime, and, however just,
the public sentiment may be which demands,
the speedy trial and conyiction of persons
believed to be guilty of the; commission of,
heinous offenses, the courts. must be free,
from the influence of hostile. public senti-,
ment. ‘i ‘ ,
This court has recognized that the com:
mission of a heinous offense is likely, to,
arouse excitement, indignation, and. preju-,
dice against a person accused of the crime,
and that.a jury may be affected thereby, if
the trial takes place within a short time
thereafter. oy Sylee
The judgment in the case of Rice v. State,
35 Fla. 236, 17 South. 286, 48 Am. St. Rep,
245, was reversed on the evidence which the,
court said was contradictory and inconsist-
ent, and also said: .. ; ao 4

“This.view is also influenced to a considerable
extent by the fact that the trial was had within
four days of the alleged perpetration of the
offense charged,‘ which is so likely to arouse ex-
citement, indignation,. and prejudice against
the accused.” i ead

The crime for which the Blackwell broth-
ers were tried was a most revolting one. An
old man of about 90 years of age and wife
over 70 had been brutally murdered, for no
apparent reason, although an effort was made
on the trial to prove that they were murder-
ed for their money, which it was claimed
one of the defendants knew was carried in
a belt around the waist of one of the murder-
ed couple. About $400 was found on thelr
persons after their death, and no satisfac
tory reason appears in the testimony why
the murderers, if robbery was the motive,
did not accomplish their purpose. ~

The defendants were indicted on the 30th
of April, 1917, arraigned on May 1st, and the
cause set down for trial six days thereafter,
On this day the defendant Will Blackwell
escaped. He testified on the trial that, be
ing acquainted with the strong public senti-
ment in the county against him, and _har-
ing failed to obtain a change of venue of
continuance until public feeling might sub
side, he knew it would be impossible for
him to get a fair trial, and that he bribed
the detective and deputy sheriff to permit
him to escape. He swore that he unlocked
the handcuffs with keys furnished him by
the detective. This is denied by the off
cers, who say that he slipped his hands out
of them. Will Blackwell, on the trial, chal-
lenged this statement, and asked that the
handcuffs be produced ‘befpre the jury, to
show that it would be impossible for him
to slip his hands through them, This was
mot Gonmes...:61s bdbagiiid Glas Vion 3 bla

that the people demanded the conviction of


BOLENDER v. SINGLETARY

1567

Cite as 16 F.3d 1547 (1ith Cir. 1994)

The prevailing standard for applying the
harmless error doctrine evolved from Chap-
man v. California, 386 U.S. 18, 87 S.Ct. 824,
17 L.Ed.2d 705 (1967), which came before the
Court on direct review. Applying Chapman,
we have stated that “{a] Hitchcock violation
is harmless error if the court can conclude
beyond a reasonable doubt that the nonstatu-
tory mitigating evidence regarding the defen-
dant’s character that was not considered by
the jury would not have influenced the jury
to recommend a life sentence.” Jackson, 931
F.2d at 716. Nonstatutory mitigating evi-
dence not considered by the jury “affects the
jury's recommendation if it amounts to a
significant mitigating circumstance.” Jd.
See also Tafero, 873 F.2d at 252 n. 5 (discuss-
ing views in this circuit on the application of
a harmless error standard for Hitchcock vio-
lations).

[29] Recently, however, the Supreme
Court has held that “[t]he imbalance of the
costs and benefits of applying the Chapman
harmless-error standard on collateral review
counsels in favor of applying a less onerous
standard on habeas review of constitutional
error.” Brecht v. Abrahamson, — U.S.

: - , 113 S.Ct. 1710, 1721-22,
123 L.Ed.2d 353 (1993). The test the Court
enunciated, which derives from Kotteakos v.
United States, 328 U.S. 750, 66 S.Ct. 1239, 90
L.Ed. 1557 (1946), is “whether the error ‘had
substantial and injurious effect or influence
in determining the jury’s [or the court’s]
verdict.’” Brecht, — U.S. at ——, 1138
S.Ct. at 1722 (quoting Kotteakos, 328 U.S. at
776, 66 S.Ct. at 1523). The Court explicitly
held that, in order to satisfy this test, a
habeas petitioner alleging constitutional trial
errors is not entitled to habeas relief unless
it can establish actual prejudice. Jd. Brecht
concerned an allegation that the prosecu-
tion’s use of petitioner’s post-Miranda si-
lence for impeachment purposes violated
Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49
L.Ed.2d 91 (1976), but the Court directed
that the Kotteakos harmless error standard
applies in all cases alleging constitutional
errors of the “trial type.” Jd. Violations of
Lockett and Hitchcock fall into this category.
See Arizona v. Fulminante, 499 U.S. 279,
280, 111 S.Ct. 1246, 1249, 113 L.Ed.2d 302
(1991) (defining trial error as that which

“oecur[s] during the presentation of the case”
in court):

Given the facts of this case, and the bal-
ance of aggravating and mitigating circum-
stances established, Bolender has failed to
satisfy the Brecht standard. For the forego-
ing alternative reasons, therefore, we affirm
the district court’s disposition of Bolender’s
Hitchcock claims.

IV.

Bolender also challenges several aspects of
the Florida Supreme Court’s review of his
death sentence, focusing on the alleged im-
proper use, doubling, and weighing of aggra-
vating circumstances in sustaining the trial
court’s override of the advisory jury’s life
recommendation. In particular, Bolender
contends that the Florida Supreme Court
erred in failing to remand for resentencing
after striking two aggravating circumstances
relied upon by the trial court, in failing to
apply limiting constructions to certain broad-
ly worded aggravating circumstances, and in
affirming three pairs of aggravating factors
that were predicated upon identical underly-
ing facts. Running through all of these ar-
guments is a contention, raised more specifi-
cally below but also, we find, implicitly here,
that the override of the jury’s life recommen-
dation was improper because that recommen-
dation had a reasonable basis.

A.

[30] Initially, Bolender contends that the
Florida Supreme Court’s review of the death
sentences in this case violated Clemons v.
Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108
L.Ed.2d 725 (1990), because the court failed
to apply a constitutional standard of harm-
less error review when it declined to remand
for resentencing after striking two of the
aggravating circumstances found by the trial
court. Instead, the state appellate court held
that the invalidation of two aggravating cir-
cumstances did not require reversal of the
death sentence in view of the remaining ag-
gravating factors and the lack of mitigation.
See Bolender I, 422 So.2d at 838.


1568

In Clemons, the Court held that a state
appellate court may constitutionally uphold a
death sentence that is based in part on an
invalid or improperly defined aggravating
circumstance, provided that the decision is
reached “either by reweighing of the aggra-
vating and mitigating evidence or by harm-
less error review.” 494 U.S. at 741, 110 S.Ct.
at 1444. Clemons “stands for the proposition
that state appellate courts in weighing states
may independently weigh aggravating and
mitigating circumstances and thereby cure
certain errors that might have occurred at
the sentencing phase of a trial; they may act
as sentencers.” 78 Booker, 922 F.2d at 642
(Tjoflat, C.J., specially concurring).

On several occasions, the Florida Supreme
Court has stated that it does not reweigh
evidence when reviewing a death sentence.
See, e.g., Hudson v. State, 538 So.2d 829, 831
(Fla.) (“It is not within this Court’s province
to reweigh or reevaluate the evidence pre-
sented as to aggravating or mitigating cir-
cumstances.”), cert. denied, 493 U.S. 875, 110
S.Ct. 212, 107 L.Ed.2d 165 (1989). The Flor-
ida Supreme Court does, however, conduet a
proportionality review of the sentence, which
“involves comparing the balance between ag-
gravating and mitigating circumstances in
the case at hand with the balance in other
cases (not considered by the jury in recom-
mending, or the trial judge in fashioning, the
sentence to be given) in which the death
penalty has been imposed.” Booker, 922
F.2d at 643 (Tjoflat, C.J., specially concur-
ring). To the United States Supreme Court,
and despite the Florida Supreme Court’s
protestations to the contrary, this form of
analysis may constitute exactly the type of
“reweighing” referred to in Clemons. See
Wainwright v. Goode, 464 U.S. 78, 104 S.Ct.
378, 78 L.Ed.2d 187 (1983) (per curiam);
Booker, 922 F.2d at 642-43. To cure a con-
stitutional violation in the trial court under
Clemons, therefore, an appellate court in a
weighing state need only reconsider the bal-
ance of aggravating and mitigating circum-
stances to determine whether the evidence
still justifies the death penalty.

28. Florida is a “weighing” state because a death
sentence may be imposed only when the aggrava-
ting circumstances outweigh the mitigating cir-

16 FEDERAL REPORTER, 3d SERIES

Two years after Clemons, the Supreme
Court gave its holding further form in a
Florida capital ‘case, Sochor v. Florida, —
U.S. ——, 112 S.Ct. 2114, 119 L.Ed.2d 326
(1992). In Sochor, the Court held that the
Florida Supreme Court’s consideration of a
death sentence did not cure the trial court’s
erroneous consideration of an aggravating
factor since the appellate court “did not ex-
plain or even ‘declare a belief that’ this error
‘was harmless beyond a reasonable doubt’ in
that ‘it did not contribute to the [sentence]
obtained.” Jd—at ——, 112 S.Ct. at 2123
(quoting Chapman, 386 U.S. at 24, 87 S.Ct.
at 828). The Court noted that “the Supreme
Court of Florida will generally not reweigh
evidence independently,” id. at ——, 112
S.Ct. at 2122, and concluded that it had not
done so in the instant case. Because it could
find no indication that the state court had
conducted an appropriate harmless error
analysis, id. at ——, 112 S.Ct. at 2123, the
Court held that Clemons had not been satis-
fied. The Court stressed that it did “not
mean here to require a particular formulaic
indication by state courts before their review
for harmless federal error will pass federal
scrutiny,” but nevertheless demanded more
than mere “allusions by citation.” Jd.

In this case, the Florida Supreme Court
conducted the type of reweighing called for
in Clemons and Sochor after striking the two
aggravating circumstances. As in Sochor,
the Florida Supreme Court did not state that ~
it had reviewed Bolender’s case for harmless
error. But the opinion in Bolender’s case on
direct appeal, unlike the decision in Sochor,
does indicate that the Florida Supreme
Court reweighed the aggravating and miti-
gating circumstances in the manner contem-
plated by Clemons. First, the court deter-
mined that “[t]he disparity between Bolen-
der’s death sentences and Macker’s twelve
concurrent life sentences is supported by the
facts.” Bolender I, 422 So.2d at 837. Hav-
ing evaluated the only aspect of the case that
was argued as mitigation, the court then
found that, “[b]ased on the evidence and
testimony at trial, we agree with the trial
court that virtually no reasonable person

cumstances. See Fla.Stat.Ann. 921.141(2)-(3)

(West 1985).


BOLENDER v. SINGLETARY

1569

Cite as 16 F.3d 1547 (lith Cir. 1994)

could differ on the sentence.” Jd. Finally,
the court concluded by comparing the aggra-
vating and mitigating circumstances proved
and finding that, on the record before the
court, “[iJn the absence of any mitigating
circumstance disapproval of two aggravating
factors does not require reversal of the death
sentence.” Jd. at 8388. Accordingly, the
Florida Supreme Court conducted the proper
form of review after it invalidated the use of
two aggravating circumstances and conclud-
ed that the balance of the aggravating and
mitigating factors clearly justified the imposi-
tion of the death penalty; it did not err in
declining to remand the case for resentenc-

ing.

B.

[31] Since Furman v. Georgia, 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the
Supreme Court has required that a capital
sentencer’s discretion be channeled and limit-
ed so as to minimize the risk of wholly arbi-
trary and capricious decisions. See Gregg v.
Georgia, 428 U.S. 158, 189, 96 S.Ct. 2909,
2940-41, 49 L.Ed.2d 859 (1976) (plurality
opinion). In particular, the Court has held
that an overbroad application of a statutory
aggravating circumstance is invalid where
there is “no principled way to distinguish this
case, in which the death penalty was im-
posed, from the many cases in which it was
not.” Godfrey v. Georgia, 446 U.S. 420, 433,
100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980)
(invalidating provision allowing death penalty
when crime was “outrageously or wantonly
vile, horrible and inhuman” because nothing
in those words, standing alone, “implies any

29. Bolender contends that the Florida statutory
aggravating factors of ‘‘cold, calculated and pre-
meditated’”’ and “heinous, atrocious and cruel’
were applied to him in an unconstitutionally
broad manner in violation of Maynard v. Cart-
wright, 486 U.S. 356, 108 S.Ct. 1853, 100
L.Ed.2d 372 (1988). Bolender raised these is-
sues for the first time in his second Rule 3.850
motion for postconviction relief, however, and
the Florida Supreme Court held them to be pro-
cedurally barred because they were untimely and
should have been raised in earlier proceedings.
Bolender III, 564 So.2d at 1058 n. 1, 1059. The
procedural bar was valid, so the state court dis-
position of these claims rested upon an indepen-
dent and adequate state law ground. Sochor, —
U.S. at ——, 112 S.Ct. at 2120. We are therefore

inherent restraint on the arbitrary and capri-
cious infliction of the death sentence”). Ac-
cordingly, aggravating circumstances, as con-
strued and applied by the state courts, “must
genuinely narrow the class of persons eligible
for the death penalty.” Zant v. Stephens,
462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77
L.Ed.2d 235 (1983).

Bolender suggests that both the Florida
Supreme Court and the original sentencing
court failed to apply limiting constructions to
the broadly worded aggravating circum-
stances used to justify imposition of the
death penalty in this case. The Florida Su-
preme Court held Bolender’s claims regard-
ing two of the aggravating factors to be
procedurally barred; 7° we have reviewed the
application of the remaining aggravating cir-
cumstances challenged on appeal and con-
clude that their use did not violate the Con-
stitution.

In overriding the jury’s recommendation of
life imprisonment, the trial court found the
existence of the aggravating factors involving
avoiding arrest and hindering law enforce-
ment.*° The Florida Supreme Court has ap-
plied these aggravating factors primarily in
situations where the defendant kills a law
enforcement officer in an attempt to avoid
arrest, but they also may be applicable
“when the factfinder determines that the
dominant motive of the murder was for the
elimination of witnesses.” Herzog v. State,
439 So.2d 1372, 1379 (Fla.1983); Riley v.
State, 366 So.2d 19 (Fla.1978). Furthermore,
“fwle have no reason to doubt that the sen-
tencing judge, ‘who is presumed to know and

without authority to address Bolender’s claims
concerning these two aggravating circumstances.

30. The Florida death penalty statute provides, in
relevant part, as follows:
Aggravating circumstances shall be limited to
the following:

(e) The capital felony was committed for the
purpose of avoiding or preventing a lawful
arrest or effecting an escape from custody.

(g) The capital felony was committed to dis-
rupt or hinder the lawful exercise of any gov-
ernmental function or the enforcement of laws.

Fla.Stat.Ann. § 921.141(5) (West 1985 & Supp.
1993).

1570 16 FEDERAL REPORTER, 3d SERIES

apply the appropriate, narrow construction’
of the aggravating circumstance, was guided
by the Florida appellate construction of the
words” of these aggravating factors. Berto-
lottt. v. Dugger, 883 F.2d 1503, 1527 (11th
Cir.1989) (quoting Lindsey v. Thigpen, 875
F.2d 1509, 1514 n. 5 (11th Cir.1989)), cert.
denied, 497 U.S. 1032, 110 S.Ct. 3296, 111
L.Ed.2d 804 (1990).

On direct appeal, the Florida Supreme
Court determined that the trial court had
properly applied these factors:

The crimes ... were committed for the
purpose of avoiding or preventing a lawful
arrest and to disrupt or hinder the lawful
exercise of law enforcement. John Merino
was described as a police informant and
was still alive when the defendants at-
tempted to burn the vehicle. After com-
mitting the robbery, kidnapping and tor-
ture, the defendants murdered the victims
partially to prevent their retaliation but
also to prevent arrest.

Bolender I, 422 So.2d at 838. Thus, there is
ample record evidence to support each of the
aggravating circumstances found.*! It ap-
pears that the state courts applied an accept-
able limiting construction on these aggrava-
ting circumstances, and it is not this court’s
function to second-guess its application by
re-evaluating the evidence. Regardless of
what the Florida Supreme Court may have
done in other cases, we find no error in its
application of the aggravating circumstance
in this case because the record reflects that
these cases fall into the heartland.

C.

[32-34] Bolender contends that the Flori-
da Supreme Court failed to correct the trial
judge’s erroneous application of two aspects
of state law: the prohibition against “dou-
bling” aggravating circumstances and the
standard governing a judge’s decision to
override the recommendation of an advisory
jury. Under Florida law, a jury’s reeommen-

31. See, e.g., Provenzano v. State, 497 So.2d 1177,
1183 (Fla.1986) (hindering law enforcement ag-
gravating circumstance not improperly doubled
with avoiding arrest factor because separate fac-
tual circumstances supported each finding), cert.
denied, 481 U.S. 1024, 107 S.Ct. 1912, 95
L.Ed.2d 518 (1987); Francts v. State, 473 So.2d

dation of a life sentence is entitled to great
weight and may only be overturned by a
sentencing judge when “the facts suggesting
a sentence of death [are] so clear and con-
vineing that virtually no reasonable person
could differ.” Tedder, 322 So.2d at 910. The
Florida Supreme Court has not hesitated to
apply this exacting standard and to reverse
the trial court’s imposition of sentence when
it believed that reasonable minds could, in
fact, have differed on the appropriateness of
the death penalty. See, eg, Spaziano v.
Florida, 468 U.S. 447, 466, 104 S.Ct. 3154,
3165, 82 L.Ed.2d 340 (1984); Richardson,
437 So.2d at 1095; Welty v. State, 402 So.2d
1159, 1164-65 (Fla.1981). The Florida Su-
preme Court has also held that the “dou-
bling” of aggravating factors—the use of the
same predicates to find two aggravating cir-
cumstances—is improper. See Provence v.
State, 337 So.2d 783, 786 (Fla.1976), cert.
denied, 431 U.S. 969, 97 S.Ct. 2929, 53
L.Ed.2d 1065 (1977). The use of aggravating
circumstances can be upheld even when the
trial court considers both factors together,
however, when the trial court’s findings con-
tain distinct proof as to each factor, Hill v.
State, 422 So.2d 816, 818-19 (Fla.1982), cert.
denied, 460 U.S. 1017, 103 S.Ct. 1262, 75
L.Ed.2d 488 (1983), or when the two factors
were consolidated and given appropriate
weight, Jackson v. State, 498 So.2d 406, 411
(Fla.1986), cert. denied, 483 U.S. 1010, 107
S.Ct. 3241, 97 L.Ed.2d 746 (1987). See also
Francis, 908 F.2d at 705 (“The Florida sen-
tencing scheme is not founded on ‘mere tabu-
lation’ of the aggravating and mitigating fac-
tors, but relies instead on the weight of the
underlying facts.”’).

[35-37] Review of these issues by federal
courts evaluating petitions for writs of habe-
as corpus from state prisoners is appropri-
ately limited; federal courts do not sit to
revisit a state supreme court’s judgment as
to whether the trial court complied with state
law. It is axiomatic that, “to the extent that
[death penalty] proceedings do not produce

672, 675-76 (Fla.1985) (hindering law enforce-
ment aggravating factor appropriate where dece-
dent was a confidential informant and defendant
suggested that victim would have to die), cert.
dented, 474 U.S. 1094, 106 S.Ct. 870, 88 L Ed.2d
908 (1986).

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ry | pone the execution until at. least. - nor could go to Europe and move. and gentenced to death for the 1983 | ;,
S, Tuesday morning so additional le- forward with the execution if he murder of Carol Ward at her Orlan- | .
ig | gal motions could be considered. wanted to over the phone,” Peck do home. He stabbed her at least 14 |

1. The court on Friday had reject- said. “But he feels it’s appropriate times with two different knives,

| ed Bertolotti’s appeal, but court that he be.in Florida.” raped her and strangled her. - I
PW ee RH A Mh gst ees cee 3 ge ri Lf U4), weve Nis. 6 So ad


ee ae

® Pe ne eee ae ee ee = ae
Dan Joc, Cok; fornia ne.

a
xf

4A” ue
Saturday, July 28, 1990 s San Jose Merci ; ‘G ay
y News |

|

Appeal rejected.
killer execute d

. in Florida ehair

A killer who sta
bbed, r
are od Foe a woman was pies
rine riday in Starke, Fla., af-
e U.S. Supreme Court re-

jected claims that Florida’s

électric chair wasn’t working

properly. The execution of Ané--

thony Bertolotti

i 1, 38, was t

rad ae the chair en
in May. It was carried

out without any sign of prob-

]

ans Gov. Bob Martinez’s -of-

ae ance The Supreme Court

a eoted Bertolotti’s last ap:

PB about 30 minutes befor a
ied at 7:07 p.m. as

National Ne

in
brief

burg, West Germa

. arrested less thar

in Gulf Breeze, ’
gation found r
soldiers had ’
espionage du’
were AWO’
spokesman.

EMERC
America’

people :
gency ’

man was executed ;
tric chair yesterday for the 1983 Y

stabbing death
let him into h
to use the telephone.

|

|

United Press International

STARKE, Fla. — A 38-year-old

in Florida’s elec- NI
of a housewife who |
er home after he asked

Anthony Bertolotti was put. $0
DT, fol-

death shortly after 7 p.m. BD 7
lowing the failed attempt by his aw- © |
ers to win an 1ith-hour stay from ~
the U.S. Supreme Court. o*
rst in

The execution was the fi
Florida since the con
cution in May of Jesse T
Flames shot from the chair’s head-
piece during the execution, and it ©

tricity before Tafero

dead. ;
The llth US. Circuit Court
Appeals in Atlanta previously halted,

three Florida executions because

arguments from defense e

But the state tested the chair earli-

er this week a

the appeals panel, which denied Ber-'

tolotti’s request after oral arguments. |
ed the flames

Prison officials blam
hair’s head-

on a bad sponge in the c
piece. The sponge is soaked in salt

ductor, but before Tafero’s execution
the natural sponge inside “was

aombhatio Ane.

ial exe- ~ >) |
troversial =)

electrical con- .

of |

¥

. of *— |

|

>
nd sent the results lo | “i
gat

\

took three separate surges of elec- >
was pronounced: ty

anata

> raat ocean it? —aeuentaatinenten eatin onetime a
}
we

Sorte Cruz, een ere ( CAz
- A-16—Sunday, July 29, 1990 — Santa Cruz Sentinel

Florida ‘chair’ reconnected

Man electrocuted for first time since fiery May mishap

' STARKE, Fla. (AP) — The execu-
tion of a " convicted killer should
end weeks of controversy over
whether Florida’s electric chair is
a valid means of execution or a

torture device as defense attorneys -

claimed, the governor said.

“Florida should now be able to
resume .carrying out its capital
punishment statute,’’ Gov. Bob
Martinez said after Anthony Berto-
lotti was pronounced dead Friday
evening.

“The people of Florida can know
that criminals who show a total
disregard for human life will in-

* deed be called upon to pay-the ulti-

-mate penalty for their actions,” the
governor said.
During the May 4 execution of

_ Jesse Joseph Tafero, flames and

sparks shot from the inmate’s head
and smoke filled the execution

_, Chamber. Tafero was finally de-
* clared dead after three {ons of elec-

tricity.

Attorneys for three ‘condemned
inmates won indefinite stays from
the 11th U.S. Circuit Court of Ap-

s in Atlanta with arguments

: that the electric chair was not

functioning properly.

As a result, Martinez ordered an
independent examination of the
chair. In a demonstration wit-
nessed Monday by the media: and
state officials, Michael Morse, an
associate professor of electrical en-
gineering at Auburn University,
concluded the chair was function-
ing properly and would send a le-
thal amount of electricity through
an inmate’s body.

Prison officials said a moistened
synthetic sponge contact, used for
the first and only time in the Taf-
ero execution, caused flames to
rise from his head.

On Friday, the U.S. Supreme
Court upheld a ruling by a lower
court that the chair’s 2,000-volt
charge is “sufficient to cause pain-
less termination of life,” ending
the legal alternatives for Bertolotti.

The three cases held up by the
11th circuit would be the likeliest
to result in the next execution, the
governor’s press secretary, Jon
Peck, said Saturday.

“No decision has really been
made on those other three, but po-
tentially at least they could be

‘said.

‘ treated a little differently because

they all are basically ready and
they were awaiting a ruling on the
workings of the chair itself,” Peck

Martinez, a strong advocate of
the death penalty, applauded the
courts’ decisions clearing the way
for Bertolotti’s death.

“It is gratifying that the courts
concluded Florida’s electric chair
does in fact work as it is designed
to,” the governor said.

“Today’s events have begun to
restore certainty to Florida’s ulti-
mate penalty, and I commend the
courts for moving toward that
eventual end,” he said.

Bertolotti was sentenced to die
for the Sept. 27, 1983, murder of
Carol Ward. She was working in
her yard in Orange County when
Bertolotti approached and asked to

in.

He grabbed a knife, robbed her
of $30 and then stabbed her repeat-
edly until the knife broke. He then
found another knife and stabbed
her until she died, leaving the
knife in her body. At some point,

use the telephone, and she let him

Anthony Bertolotti
Dies in Florida electric chair
Bertolotti removed her clothes and _
raped her.

An unrepentant Bertolotti wrote’
several letters to prosecutors after
his conviction, saying he wasn’t
sorry.

“TI have no regrets or sorrows for
the murder of Carol Ward,” he
wrote. She “should have locked
her damn door. I really did a favor
by taking her life, don’t you think
so?”


BERTOLLOTI, Anthony,black, elec,,Florida (Qrange) 7-27-1990

Executio !
unlike
Tafero's

By CYNTHIA BARNETT

baal

Sun staf writer oe

STARKE os Relatively speaking,--.
Anthony Bertolotti died quickly and: -
quietly: Friday night’ in: Florida's”
electric chair.

Bertolotti, 38, the first man to sit in.
___ the chair since the.
je botched execution:

+ of Jesse Tafero. in
"May, was subject-

. ed to an initiak
1 surge of electrice
ity at 7:05 p.m. and

was dead by 7:07.

The execution
‘proved what Gov.

Bob Martinez. and.
the state Departs
ment of Corrections have been
maintaining for almost three
months: Florida’s electric chair
works... .

Unlike the heavy smoke, sparks /
and flames that: marred Tafero’s_ |,
May 4 execution, Bertolotti’s electro-
ccution was marked like those that —
had takes piuce pefore i1aicro’s —
by slight body surges back into the
chair and small smoke flumes curl-
ing from the right leg.

The moments before his death,
however, appeared to be more trau-
matic for Bertolotti than they had
been for Tafero, who faced his death
calmly. .

Bertolotti was visibly frightened as
he was led into the electrocutior.

See EXECUTE on page 8A

Bertolotti *

SUN, Gainesville, "lorida, July 28, 1990


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x “Prror to Cireult Court, Bay County; D. J.

~ Jones, Judge. , .

Will Blackwell and Robert Blackwell were
nvicted of murder in the first degree and

| entenced to death, and they bring error.
Affirmed.

J, Ed Stokes, of Panama City, for plaintiffs

- th error.

Van C. Swearingen, Atty. Gen., and D.

Stuart Gillis, Asst. Atty. Gen., for the State.

a WILLS, Circuit Judge. Will Blackwell
© and Robert Blackwell, brothers, were jointly
| {ndicted in Okaloosa county, Fla., in two sep-
arate indictments, for the murder of M. M.

Davis and his wife, Nancy Davis, and on
May 7, 1917, were put upon trial under the
indictment charging them with the murder
of Nancy Davis. During the course of the
trial the defendant Will Blackwell escaped
from custody, thereby necessitating an order
of mistrial. After a lapse of about three
weeks he was recaptured, and on July 2,
1917, the defendants were placed on trial

forthe murder of M. M. Davis, were convict-

ed of murder in the first degree, and sen-
tenced to death. The case then went to the
Supreme Court on a writ of error and was
reversed (see 76 Fla. 124, 79 South. 731, 1
A, L. R. 502) and a new trial awarded.
After the reversal of the case it was trans-

| ferred to the circuit court of Bay county,

Fla., where the defendants were again placed
upon trial in the circuit court of Bay county,
Fia., for the murder of M. M. Davis, on the
17th day of December, A. D. 1918, and were
again convicted of murder in the first degree
and sentenced to death, and from this judg-
ment defendants sue out writ of error.

[1] Plaintiff in error contends in the second
assignment of error that the court erred in
permitting R. A. Rice to act as bailiff for the
jury sworn to try the case, without requiring
him to take a special oath. The record dis-
ses the fact that the said Rice was a reg-
ular appointed deputy sheriff, and that when
designated to act as bailiff to the jury he was
called up by the judge in the presence of the
defendants and their counsel and admonished
by the judge as to his duties while in charge
of the jury. The record fails to show any im-
proper conduct on the part of said Rice while
in charge of said jury, nor is there any inti-
mation by the defendants that there was, and,
even if it had been proper that he should
have taken an additional oath to the one as
deputy sheriff, the failure to take such oath
would be harmless error, and no grounds for
reversal. | TBE

But we do not concéde that, where a sheriff

"86 §0.—15

BLACKWELL v. STATE
(86 So.)

' ‘appear in the record, a judgment of conviction
wil be affirmed.

_. Browne, ©. J.,’and Taylor, J., dissenting.

225

or deputy sheriff acts as bailiff, any addition-
al oath is necessary. This court, in the case
of Cato vy. State, 9 Fla. 163, said:

“It is not indispensable that the jury, in a
capital case, should be committed to the charge
of a bailiff specially sworn for the occasion.
It is sufficient if they be put in charge of the
sheriff, or his deputy, who has taken the oath
of office.”

Counsel in their brief cite the case of
Nicholson vy. State, 88 Fla. 99, 20 South. 818.
Upon a careful reading of this case we find
nothing in conflict with the authority above
cited. ety a

[2] Another ground contained: in the mo-
tion for new trial was that they (defendants)
were not properly represented, because their
attorneys became intoxicated during the trial.
The only evidence relied upon to maintain
this ground is the affidavit of the two de-
fendants, and there was a counter affidavit
of eight or nine persons, who were present
in the courtroom throughout the trial, deny-
ing the fact that the attorneys of the defend-
ants were drunk during the trial, or under
the influence of liquor. The judge who pre-
sided at the trial, and who had continual ob-
servation of said attorneys, after considering
the affidavit presented at the time of the mo-
tion for new trial, overruled the, motion for
a new trial, which he certainly would have
granted, had he believed that the defendants
had not had a fair and impartial trial by rea-
son of the intoxication of their lawyers.
There is certainly no evidence in the volumi-
nous record brought here of any intoxication
or lack of mental activities on the part of de-
fendants’ counsel during the trial.

[3,4] The third assignment of error, as
given in the motion for new trial, is as fol-
lows:

“If you find that the defendants, at or about
the time the charge contained in the indict-
ment was preferred against them, fled to an-
other place, and that such flight was induced
by the charge, you may consider such flight
in determining the guilt or innocence of the
defendants. The flight is a circumstance to be
considered by the jury, as tending to increase
the probability of the defendants being the
guilty persons.” *

Counsel contend that under such charge as
complained of the natural assumption of the
jury would be that it was prima facie evi-
dence of the guilt of the accused, and it
might possibly be open to this criticism if
that were the entire charge. The charge com-
plained of as,erroneous must, not be deter-

as follows:

mined on, as to its correctness, by segregated.
parts, but as a whole, The charge complain-,
ed of in its entirety meets the contention of:
counsel against it. The charge in words was’

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was. | do not know who killed Mrs. Davis, and | have been
trying to figure it out, while in jail here, who killed her and
how it was done.

Boyd followed close behind me and when we got to
the gate we found Will. He turned and fired into the house
one time and we all fled. We left together going back
toward Crestview. When we got close to town Boyd and !
stopped and Will went on to town. It was nearly daylight
then. Will came back and brought us something to eat and
some coca cola. That night we left.

That night Boyd and ! stayed together. Will left us
going to Crestview. We walked the railroad track when we
got clear of Crestview, and, when we got nearly to Florala,
Will called to us to wait. He came out from hiding and told
us we were wanted for the shooting. He told us the deputies
were looking for us and that the Davises were not killed, but
were only scratched. He told us not to get on the train.

We walked until we got to Lockheart then got on the
train and went to Montgomery. There we went to the
barbershop in the depot and got cleaned good and got rid
of the sign of the polish. | went back to Sylacauga and went
to work at the mill. | learned that he Davises were killed, and
left there going to work in another mill close by. ;

My father wired me that Will had been arrested for
the murder and asked me to get him the best lawyer | could
find. | was afraid to come to Pensacola and when | left my
people again | went to Sylacauga. | left there again and had

been working at the other mill about a week when | was.

arrested. Will threatened to kill me if lever breathed a word
to anybody, several times, and | was afraid of him. | wanted
to confess to the whole crime but was afraid that Will would
kill me. We began scheming to get away and discussed
several plans. We got one finally that worked alright and
made arrangements for us to get away. A friend bought us
some saws one day and he was paid some money for them. |
am not sure but I think it was $10 apiece. We sawed out and
walked away from the jail. Nobody helped us in any way in
getting away from here at all. We walked out of town.
Phelps was accused and convicted of helping us get
away, but so faras! know he was absolutely innocent. | have
made up my mind that | am going to hang for the crime and
| am getting ready for it. | do not want to go into the next
world knowing that | have lied all the way through and !
have just got one more week. | am going to get ready to
meet God. | have read in the Bible that a liar shall not enter

180

~

into the kingdom of heaven and | am getting ready for the
better judgment.
My case was being considered by the pardon board

_ when the Governor was here the other day and | wanted
them to think | was innocent. That was the reason | did not
tell the Governor the truth as they have decided not to help

me, and | guess | will be hanged next week, and lam getting
ready for it.

Uncle Bud and Aunt Nancy Davis were murdered on the night
of March 21, 1917. Will Blackwell died in jail and his brother, Bob,
was hanged for his part in the crime on July 23, 1920. Will Boyd was
still in jail in Pensacola. He had turned States evidence and had
been a witness against Bob Blackwell.

About a week before his execution, Bob confessed to a
reporter. He was in the cell for the condemned which was
described by one of his friends as a light and roomy place with a
bouquet of flowers and three Bibles ona table. The friend said to
him, “Bob, if you must die and go before your God with a lie on
your lips, brace up and die like a man. If you are guilty, tell it.”

Governor Sidney J. Catts visited Blackwell in the Pensacola jail.
It was the custom of the Governor to visit all condemned people
before signing the death warrant. When he left Bab Blackwell,
he told him to prepare to meet his God. Blackwell knew that his
time was short. The pardon board met on Thursday before the
execution on Friday, but turned down pleas for clemency. The
Governor wired Sheriff Haywood Sutton Thursday evening that
he would not interfere. Sutton, accompanied by Alex Richbourg
and Parker Powell, brought the prisoner from Pensacola several

days before the execution. On Thursday afternoon, a religious
meeting was held in the Circuit Court room where three or four
hundred members of the Holiness Church prayed for the
prisoner. Bob, addressing the gathering, repeated his
confession. A bath tub was brought to the courtroom from.a
barber shop and filled with water and the foot-washing rites

were performed. Reverend Curry, a Holiness Minister from
Bonifay, washed Blackwell’s feet, then Blackwell was baptised in
the tub. All the people went forward and shook hands with him.
He told them he would be in heaven on the morrow, and asked to
be buried in Crestview.

On Friday, the condemned man was led out to the scaffold
about 10:50 p.m. where he spoke for about twenty minutes -

181


again confessing the crime and admonished the crowd not to
make the same mistake he had made. Several of the church
members were on the scaffold with him. He sang with the crowd,
“Nearer My God To Thee,” then told the sheriff that he was
ready. The sheriff pulled the trigger at 12:45 p.m. and Blackwell
paid his debt to society. Dr. E. Porter pronounced him dead in
about fifteen minutes. A. wire fence had been built around the
scaffold and a curtain around the lower part to shield the body
from public view.

Only two of the Davis children were living in 1975, Melissa and
Mandy. Harrison, whose widow recited this story, was an invalid
for thirty-two years before his death in 1973. He was paralyzed
from the waist down. It was thought it was caused from the bite
of an alligator while working in a nearby creek, but there is a
strong probability that it was caused by polio. He made a living
by knitting cast nets, working from a wheel chair. His widow lives
in a small house with her son not far from the site of the old Davis
homestead.

After the jail break, the fugitives were soon apprehended and
brought back to Crestview. Boyd was tried and given a life
sentence.

The writer was attending high school in Milton at the time of
the hanging. Out of curiosity, | boarded the special train and
went to Crestview. It was a gruesome experience, but | am glad
| can tell the story in part from personal knowledge. The press
estimated that five thousand people went to Crestview to
witness the execution, so | was not alone. 3

Marvis Martin Davis
and wife Nancy
Donaldson Davis.

182

a

d Cecelia Nel

ea

Frank an son

183


SSS” FS

RS eae eN

BLaCkW LLL, Robert, white, han

(79 Fla. 709) ; |
BLACKWELL et al. v. STATE.

(Supreme Court of Florida. May 10, 1920.)

(Syllabus by the Court.)

1. Criminal law ¢==850—Jury in capital cases
need not be put in charge of bailiff specially
sworn therefor.

It is not indispensable that the jury in a
capital case should be committed to the charge
of a bailiff specially sworn for the occasion.
It is sufficient if they be put in charge of the
sheriff, or’ his deputy, who has taken the oath
of. office. thy

2. Criminal law €=2956(7)—Evidence held to
require denial of new trial for alleged in-
toxication of defendants’ counsel.

Where, in a criminal prosecution, the evi-
dence adduced does not clearly ‘sustain @
ground of a motion for new trial asserting that
counsel for the defendants were so intoxicated
during the trial as to substantially deprive the
defendants of their right to be properly repre-
sented by counsel, and the record discloses
no lack of efficiency of the counsel, the motion
on that ground is properly denied.

3. Criminal law @=-822(11)—Abstract charge
on flight as evidence of guilt heid not preju-
dicial, when construed as a whole.

A portion of a charge, that “the fact of
flight is a circumstance to be considered by

the jury as tending to increase the probability |

of the defendant being the guilty person,” be-
ing abstract, is harmless, when coupled in
the same paragraph with other statements of
the law on the subject, and under all the cir-
cumstances of the case the defendants could
not reasonably have been prejudiced by the
quoted charge.

4. Criminal law @=>829(1) — Refusal of in-
structions covered by those given is not er-
ror. ‘

It is not error to refuse to give instructions
that have already been given substantially,
though couched in different language.

5. Criminal law @=-1178—Assignments of er-
ron must be argued, unless so patent that
no argument is necessary.

In order to merit consideration by this
court, assignments of error must be argued,
unless the error complained of is so glaring
or patent that no argument is needed to dem-
onstrate it.

6. Criminal law @=-1178—Only argued grounds
of error in denying a new trial will be con-
sidered,

Where one of the assignments of error is
based upon the overruling of the motion for
a new trial, an appellate court will consider
only such grounds of the motion as are argued.

7. Criminal law ¢==31, 572, 775(3)—Defense
of alibi defined; alibi must be clearly proved;
requested charge on “alibi” held correct.

Proper charges on the subject of “alibi”
discussed (quoting Words and Phrases, Alibi).

Crestview, FL on 7/23/1920
224. 86 SOUTHERN REPORTER (Fla.;

8. Criminal law @=829(1)—Where abstract
charge is harmless, refusal of requested ap-
propriate charge is not reversible error.

Where a portion of a charge is abstract,
and, even if not entirely correct, it is mani-
festly harmless, it is not reversible error to
refuse to give a more appropriate charge on

party.

9. Criminal law @==542—Admission of bill of
exceptions containing evidonce on former
trial was not error, where witnesses were
sick and accused at former trial had confront.

- ed absent witnesses.

Under the statute authorizing the use in
a subsequent trial of the evidence incorporat-
ed in a bill of exceptions taken at a former
trial, when the testimony of the same witness
“cannot be had” at the subsequent trial, it is
not error to admit such bill of exceptions,
when it is “made to appear to the satisfaction
of the court” that the witnesses are sick, and
most probably could not appear to testify for
more than two weeks, when the accused had
met the witnesses against him face to face,
and was given full opportunity to examine

+f

exceptions was taken.

former trial does not deny right to confront

Chapter 5897, Acts 1909 (Comp. Laws
1914, § 1523), authorizing the use at a sub-
sequent trial of the evidence adduced and in-
corporated in a bill of exceptions at a former

that the testimony of the same witnesses “can-
not be had,” is not in conflict with the organic

nesses against him face to face.”

used at subsequent trial stated.

exceptions may, under chapter 5897, Acts 1909

quent trial.

ported by evidence will be affirmed, in abe |

trial error.

to sustain a verdict found, and it does not

@=—>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the subject, that is requested by the interested

YY Pin a ON SR RT

them at the former trial, when the bill of q

10. Criminal law @==662(6)—Statute authors be
izing use of evidence in bill of exceptions at, Be

witnesses. S|

trial, where on the subsequent trial it is “made 4
to appear to the satisfaction of the court” #

provision that in all criminal prosecutions the q
accused shall have the right “to meet the wit; ©

tl. Criminal law @=>543(1)—Conditions under |
which evidence used at former trial may bt ©

In criminal prosecutions the use of evi
dence adduced and incorporated in a bill of F .

(Comp. Laws 1914, § 1523), be used as evi:
dence in a subsequent trial, only when the §
accused had on the former trial met the par | 2
ticular witnesses against him face to face and | 4
had full opportunity to cross-examine them, @
and when it is “made to appear to the satis “a
faction of the court” that the witnesses “can @
not be had” to testify in person at the subse: 7

12. Criminal law @==1159(2)—Conviction sup- q
sence of jury’s departure from evidence oF ©

Where there is ample competent evidence : 4
appear that the jury were not governed by the | .

evidence in making their finding, and no ms §
terial or harmful ‘errors of law or procedut 7

“Both the Florida Supreme Court and the
district court below concluded that these
claims are meritless. We agree. Contrary
to Bolender’s contention, these few sentences

‘from the court’s instructions did not tell the

jury that it had to find that Bolender was
guilty of the murders. The defense had con-
ceded that four men were tortured and mur-

dered at the hands of another human being.

As the Florida Supreme Court concluded
when it considered these claims, “(t]he state
established corpus delicti in this case, the
quoted statement merely recited the obvious,
and the instructions did not direct a verdict
for the state.” Bolender III, 564 So.2d at
1059.52. The court was merely pointing out

- that these limited points were not contested

while stressing that everything else fell with-
in the jury’s province. Moreover, the jury
did not hear only the challenged sentences,
and “the potentially offending words must be
considered in the context of the charge as a
whole.” Francis v. Franklin, 471 U.S. 307,
315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344
(1985). The court explained shortly thereaf-
ter that “[t]he killing of one human being by
another is called homicide” and that sch a
killing could be either lawful or unlawful. “In
explaining these concepts, “[t]he Court nei-
ther expressed an opinion on the legality of
the killing nor connected it to the defendant.”
Bolender, 757 F.Supp. at 1408.

[43] As for the claim that appellate coun-
sel (a different lawyer from trial counsel) was
ineffective for not raising this claim on direct
appeal, we note that “raising every single
frivolous point on appeal is not a sign of
effective counsel and indeed ‘often has the
effect of diluting the import of stronger
points.’”  Bolender, 757 F.Supp. at 1409
(quoting Atkins v. Dugger, 541 So.2d 1165,
1167 (Fla.1989)). The Florida Supreme
Court believed that “[i]f this issue had been
raised on direct appeal, it would have been
found meritless,” Bolender IIT, 564 So.2d at
1059, and it is axiomatic that the failure to
raise nonmeritorious issues does not consti-
tute ineffective assistance. See King v. Dug-

32. These claims were presented for the first time
in a petition to the Florida Supreme Court for a
writ of habeas corpus that accompanied Bolen-
der’s appeal of the denial of his second Rule
3.850 petition. Noting that the court had ‘‘fully
considered the propriety of Bolender’s sentences

JACKSON v. GEORGIA DEPT. OF TRANSP.
Cite as 16 F.3d 1573 (11th Cir. 1994)

1573

ger, 555 So.2d 355, 359 (Fla.1990). Bolender
has therefore failed to. overcome the pre-
sumption, discuSsed above, that appellate
counsel’s conduct falls within the wide range
of reasonable professional assistance.

VIL.

For the foregoing reasons, we conclude
that all of the claims raised by Bolender in
this appeal relating to his convictions and
death sentences are either procedurally
barred or without merit. Accordingly, the
judgment of the district court denying Bolen-
der’s petition for a writ of habeas corpus is

AFFIRMED.

O © KEY NUMBER SYSTEM

ANMsE

Gaye JACKSON, Barbara Bowens,
Plaintiffs—Appellees,

State Farm Mutual Automobile

surance Company,
Plaintiff,

v.
GEORGIA DEPARTMENT OF

TRANSPORTATION,
Defendant,

Don King, Gene Malcom, Defendants-
Appellants,

Joe Street, Don Senkbeil, Bobby Melton,
Edwin Thompson, Van Ethridge, Don
Watson, Allan Childers, Defendants,

Jimmy Vaughn, Brian Summers, Jerry
Hillhouse, Defendants—Appellants.

No. 92-8334.

United States Court of Appeals,
Eleventh Circuit.

March 25, 1994.

Personal injury suit was brought against
state employees in their individual capacities,

on direct appeal” and that ‘[h]abeas corpus is
not to be used to relitigate issues determined in a
prior appeal,’’ Bolender IIT, 564 So.2d at 1059,
the court held that most of the claims raised
were procedurally barred and considered only
the directed verdict issues on the merits, id.


‘Likewise the program is not un-
ive since it provides that busi-
ot entitled to the presumption of
s may apply for certification and
‘their qualifications to participate.

at the SCC program is constitu-
se it is narrowly tailored to

‘subcontracting opportunities for
antaged Basics enterprises, as

ys. Because eligibility is based
mic disadvantage, non- -minority-
esses also are eligible to partici-
iC ‘program is not overinclusive

See Fullilove, 448 U.S. at 489,
ie (Opinion of Burger, C.J.).

nd’s bid for the subcontract.
cc program induces, rather

rejected Adarand’s arguments, and
at the district court did not err
n Fullilove rather than Croson,
ingly, no Croson findings were
ind that the Small Business Act
rized the SCC program meets

BOLENDER v. SINGLETARY
Cite as 16 F.3d 1547 (11th Cir. 1994)

1547

constitutional requirements, we will affirm
the district court’s order of April 21, 1992 in
favor of the Government. ‘

AFFIRMED.

7 le / O. eR

(V4, C ‘fe

LT af,

ee MK © E KEY NUMBER SYSTEM
T

Aes fF
fe If ad by fe : lo WIAD

4

3 Bernard BOLENDER, a/k/a Bernard

Bolander, Petitioner—Appellant,

Vv.

Harry K. SINGLETARY, Secretary,
Florida Department of Corrections,
Respondent—Appellee.

No. 91-5254.

United States Court of Appeals,
Eleventh Circuit.

March 11, 1994.

2

Petitioner whose death sentence was af-
firmed on direct appeal to the Florida Su-
preme Court, 422 So.2d 833, sought habeas
relief. The United States District Court for
the Southern District of Florida, No. 90-
9962-CIV, Federico A. Moreno, J., 151
F.Supp. 1400, denied petition. Petitioner ap-
pealed. The Court of Appeals, Tjoflat, Chief
Judge, held that: (1) state trial counsel’s
decision not to present evidence of petition- .
er’s troubled background as nonstatutory
mitigating circumstance at penalty phase of
trial did not constitute ineffective assistance
of counsel; (2) even if petitioner’s counsel
had been ineffective in failing to present such
evidence, petitioner would not have been
prejudiced; (3) petitioner's counsel was not
constrained from presenting mitigating evi-
dence, in violation of Eighth Amendment, by
confusion in Florida law; (4) petitioner's
counsel was not constrained from presenting
mitigating evidence, in violation of Eighth
Amendment, as result of denial of defen-
dant’s pretrial motion in which defendant
argued that mitigating circumstances provi-
sion of Florida death penalty statute was


176 INVITATION TO A LYNCHING

tery... . He was trying to get me disbarred for keeping him
alive. . . . So I don’t try to impress my will, whether I’m as smart
as a hatchet or dumb as an ox, I don’t try to impress my will on
anyone else.”

Emmett Clark Blake had killed a man in a robbery in Panama
City. He had written the governor and asked to be electrocuted.
His brother wept at a Florida Pardon Board hearing. The board
listened to J. Frank Adams and rejected the appeal. On May 12,
1964, an electrician at Raiford Prison squeezed a small yellow
sponge and placed it on a coil inside an octagon-shaped leather
cap. An assistant warden asked him if he had any last words.
“Well, I’m not mad with anybody,” said Emmett Blake. “I hope

| none of you are mad with me.” A moment later he was dead. The

executioner shook hands with the chaplain.

During that deposition in February 1968, W. Fred Turner
expressed great sympathy for Wilbert Lee. In 1967, years after
abandoning the case, he said he had gone to Tallahassee in an at-
tempt to see Florida Governor Claude Kirk and “save Slingshot
Lee.” He talked to an aide. The governor did not intervene.

For Freddie Pitts, Turner had no sympathy. “If you want it
cold-bloodedly, I felt I had no obligation to.” He depicted Freddie
Pitts as a ruthless and merciless killer.

“I can find no remorse in Pitts. No recantation. I asked Pitts,
‘Did you shoot that man behind the head with his hands tied
behind his back?’ And he said, ‘Yes, and I started to shoot twice,
because when he fell on his face, his legs kicked out like that, and
I said I’m going to have to do a good job.’”

Freddie Pitts denied the conversation. In his memorandum,

_ Hubbart noted that it had never occurred to Turner that Pitts had

no remorse because he was innocent.

There was, oddly enough, one conclusive way that much of the
contradictory testimony between Turner and his clients could be
resolved. Turner, Pitts, and Lee all remembered distinctly that
Turner carefully recorded his first long interviews with them. He
used a Dictaphone. The recordings would go a long way toward
establishing the truth. Where were they?

Turner said an army lawyer from the judge advocate general’s
office in Fort Rucker, Alabama, telephoned him after the convic-
tion. Turner said he remembered the call. “You know, just general

ee:
2
Ee

Smart as a Hatchet or Dumb as an Ox 177

: conversation, and he said, ‘Now, what about Pitts down there?

Did you have any evidence at all that those boys were mistreated?’
and I said, ‘I certainly did not.’

“And then he said, ‘Did you make a recording of that thing?’
and I said, ‘Yes.’ ‘Will you send it to me? He told me how to
address it and everything and I just sent the—there was, I think
three of the thirty-minute bands that I sent him. . . —

Hubbart pressed hard for further identification. Who was the

-army lawyer?

Turner said the man might have been a young lieutenant re-
servist from Florida who knew one of Turner’s classmates at
the University of Florida. “He said, ‘I live in the same town as
Raymond McGuire [sic].’” Turner said he did not remember
the name of the town. He said he did not remember the date of the
mailing. He said he had not written a cover letter.

Reporter Miller traced the old classmate. He was Raymer F.
Maguire, Jr., of Orlando. Attorney Maguire had no idea whom
Turner was talking about. He advertised in the Florida Bar Jour-
nal in an attempt to discover the identity of Turner’s alleged tele-
phone caller. There was no response.

Major John L. Willey, staff judge advocate office commander ai
Fort Rucker, and Captain Vincent Glorioso, his JAGC assistant,
instigated a thorough search at Fort Rucker for the recordings.
The JAGC officers questioned civilian clerks and army personnel
who had been there for years. No one, no one at all, recalled any
recordings.

The Army supplied Gene Miller with the names of lawyers as-
signed to the JAGC at Fort Rucker for the years 1963 and 1964,
some of whom had long since left the Army. Miller traced them.

One after the other, David B. Briggs, Washington, D.C.;

oat : Charles T. Reese, Enterprise, Alabama, Franklin Deibert, De
... Kalb, Mississippi; Mortimer P. Ames, Selma, Alabama; Benjamin

C. Reeves, Eufaula, Alabama; John Clark, Washington, D.C.;
Donald Paine, Knoxville, Tennessee; Richard Holmes, Mont-
gomery, Alabama, said they had never heard of W. Fred Turner
or knew anything about any recordings about a murder case in the
Panhandle of Florida.

-_.». Miller found one former Fort Rucker lawyer, however, who had
ee. “indeed made some long-distance telephone calls to Panama City


+n naliteteatiihe vee iii al

in ati ai

weoretternetes

174 INVITATION TO A LYNCHING

Panama City jail the day after he had a long interview with his
clients in mid-August. “She was standing at the Coca-Cola ma-
chine and said, ‘I’m Slingshot’s wife, Mr. Turner,’ and ‘How do
things look to you?’ And I said, “Things don’t look too good.’”

But Ella Mae Lee wasn’t in Panama City when Turner said she
was. She was in jail in Wewahitchka, held as a material witness
from August 9 until August 28—twenty-nine miles from Panama
City. She said she never talked to Turner.

Perhaps the most crucial issue of Turner’s competency hinged
on whether he had extracted a confession from his clients in the
presence of Sheriff Daffin and Chief Barron when confronted by
Willie Mae Lee. He insisted he had not.

There was no question about the Willie Mae Lee confrontation.
According to Turner, Freddie Pitts had demanded it, “24 And
so Willie Mae took up again, telling what happened. And then
Pitts said, finally, ‘Yes, that’s what happened.’ Pitts even agreed,”
Turner said.

Were Sheriff Daffin and Chief Barron there? Hubbart asked.

“Do you mean when I was talking to them [Pitts and Lee]
about this case, were these two officers present?” Turner asked.

“Right,” said Hubbart.

“I can say this with all the accuracy in the world. At no time did
I discuss the case with them in the presence of any other law en-
forcement, of which I’m aware of right now. I don't recall any
time.”

“Would it refresh your memory if I were to show you the testi-
mony of Sheriff Daffin at the [mercy] trial?” Hubbart asked,
handing Turner the 1963 transcript.

“Yes, mm, it would help,” he said and began to read. He turned
a beet red. He read from the transcript in which Sheriff Daffin
recounted the confrontation in his jail where Pitts and Lee
confessed:

QO. Was the conversation between you and these two boys and
Willie Mae free and voluntary?

A. Yes, sir. And after they had been appointed an attorney.

Q. And was this conversation in the presence of several
witnesses?

A. Yes, sir.

Q. . . . you say they had been appointed an attorney?

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Smart as a Hatchet or Dumb as an Ox 175

A, Yes, sir. He was.
~ Q. Was he present when the conversation was held?
A. Yes, sir. He was.
W. Fred Turner said he didn’t recall any such occasion.
_. Hubbart went over the same ground the next day with Sheriff
Daffin under oath. “And you are absolutely certain that Fred
Turner was there?” he asked.
“Pm positive he was there, yes, sir. I know he was,” Daffin

“replied.

“The reason I am asking, Sheriff, is that Mr. Turner testified
yesterday that he wasn’t there,” said Hubbart.
~~ “Well, he was. I don’t care.”
In-the legal memo, Hubbart wrote: “A more shocking breach of
professional ethics in a capital case can scarcely be imagined.”
‘Who was to be believed? Two black men convicted of murder?
Or W. Fred Turner?
Pitts, Turner said, “told me he had a [police] record.” Pitts
said he did not tell him that. Pitts did not have a record.
Turner said he never recommended that Pitts and Lee plead
guilty. They said he did.
Turner said be told his clients the court would appoint a
‘different counsel if they had different pleas. Pitts said he believed
he would not have a lawyer if he pleaded not guilty.
Turner said-his clients never told him they had been beaten.
They said they did.
Turner said Pitts never mentioned the Army CID investigation
-and his retraction. Pitts said he did.
Turner said his clients did not tell him that they had confessed
when he first interviewed them. “Neither one of them told me they
had signed or given a statement.” They said they did.
_ It could hardly be said that W. Fred Turner was inexperienced.

‘ Over the years, he had defended about eighty persons in capital

eases. With a touch of pride, he noted that one jury had found in-
nocent a small husband who had shot to death his fat wife through
a screen door. “Self-defense, I guess,” he said. And only one

. Client, other than Freddie Pitts and Wilbert Lee, had received a

_-Yerdict of death.

eed 3 This was Emmett Clark Blake, who, according to Turner, eng |
4m 10 of 142 and wanted to be buried in the Houston Pet Ceme-

Miley
(05


He didn’t take none of his belongings,
though. They’re still here.’
‘*Where do you think he went?”

-**I thought he might have gone to
work at his regular job, but I telephoned
the country club and he wasn’t there. I’m
worried. I shouldn’t have talked to you
yesterday. Anthony probably didn’t
have anything at all to do with killing that
woman.’

Scoggins sensed that Webster was
having: second thoughts about turning
her boyfriend in. She’s figured out, or
someone has told her, he rationalized,
that if Bertolloti were involved in the
crime, he could go to prison for a long,
long time; and if he actually committed
the murder, he could be sentenced to
death in the electric chair. In either case,
he would undoubtedly be out of her life

’ forever.

In the hope of getting information as to
Bertolloti’s present whereabouts, Scog-
gins went to the country club, where he
located and talked to the person who
regularly drove Bertolloti to that job.
That co-worker said that when he picked
Anthony up earlier that morning, An-

In 1978, Bertolloti—then Known as
‘‘Larry Jackson’’—was arrested near ~
Homestead, in south Dade County, ona
charge of attempted first-degree murder.
A girlfriend living with him told police
that on May 2nd, she was moving out of
his apartment. ‘‘Jackson’’, she said, di-
dn’t want her to leave and pulled a knife
on her. She said she tried to talk him into
putting the knife down, but he refused.
When she attempted to walk out-of the
apartment, he stabbed her in the head and
back. She survived and managed to call
police. The attempted first-degree mur-
der charge was reduced to aggravated
battery; adjudication was withheld and
‘‘Jackson’’ was placed on 10 years’ pro-
bation. ;

In 1979, Bertolloti—then ‘using the
name of ‘‘Anthony Jackson’’—was
arrested on a charge of attempted sexual
battery and burglary of a structure. In
Miami, on July 13th, he knocked on the
door of a 21-year-old deaf mute who let.
him into the apartment when he handed
her a note saying he had come to read the
electric meter. Once inside, he pushed
the woman into a chair, ripped her. T-

a relative of Bernice Webster’s and ex-
plained she hadobtained the in-
vestigator’s phone number from police
headquarters where she had first called in
an effort to reach him. As to her reason
for calling, she ‘said, ‘*Anthony con-
fessed to Bernice ‘that he. killed that
woman in Rosemont and described to her
in detail how: he did’ it.’’

**How do you know oT Scoggins
asked.

‘*Because Bernice called ‘nd told me.
She also told me she had told you that she
suspected Anthony might have been in-
volved in some way, but felt she could
find a way around that. She said she still
loved Anthony and felt she could help
him. I’m very fearful about the situation;
I think they are together.’’

‘Where do -you think they are?’’

‘ “I don’t have any idea.”

Scoggins arranged to pick the relative
up in the morning and bring her to the
Municipal Justice Building to get a taped
statement. Then he dressed and drove to
Bernice Webster’s apartment. A male
relative of hers was home. He told
the investigator he had come to the apart-

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thony asked to be taken to a house in a
neighborhood where he and Bernice
‘used to live. ‘‘He said someone there
owed him money,”’ the man explained.
‘*He got out of the truck. I waited
awhile, but he didn’t come back so I just
came on to work.”’

Scoggins next drove to Webster’s
apartment, where Webster gave him a
pair of shoes she said Anthony had worn
the day he was supposed to have worked
at the Lockhart warehouse. She appeared
nervous and said she had no idea where
Anthony might have gone. _

The investigator then returned to
headquarters and: put the shoes into evi-
dence. He then went to his desk where he
found a report on Bertolloti’s various

arrests. It had been compiled from police.

records and circuit court files in Dade
County, Florida, and in the neighboring
state of Georgia. Bertolloti had been
arrested for, and had confessed to, two
crimes in. Dade County and had been
convicted of four felonies in Georgia.
Scoggins spent most of the rest of the day
investigating the circumstances under
which the Dade County arrests had been
made. He learned:

shirt, pointed to his groin and pounded
his fist into his other palm to indicate he
was going to have sex with her. The
woman escaped. ;

He was sentenced to six years in this
case and, at the same time, to'six' years

for the earlier aggravated battery convic- —

tion on which adjudication had been
held. Bertolloti served a few years
before being released on five years’ pro-
bation. Upon reporting to ‘the Dade
County probation office to be assigned to
a supervisor, he was told to await his turn
in the lobby. When his turn came around
and he was called, he wasn’t there. A
warrant for his arrest was issued in July
1982; it was still outstanding.

The nature of the two Dade County
crimes, coupled with Bernice Webster’s
suspicions, now made Det. Scoggins’

view Bertolloti as a number one suspect

in the killing of Carol Ward. Still, the
investigator knew he did not yet have
probable cause to make an arrest. Know-
ing that a waiting game is often the best
kind to play, he went home to bed.
At midnight, the ringing of the tele-
phone awakened him. A woman on the
other end of the line identified herself as

ment earlier and found Bernice anid An-

thony looking at some of Anthony’s
clothes. -‘*‘She was crying; the clothes
had blood all over them,’’ -he said.
‘*They hid them away somewhere—I
don’t know where—and left.’’

‘*Together?’’ Scoggins asked.

‘*Yeah. Together.”’

‘*Did they take any clothes with
them?”’ :

“*No. All of their belongings are still
here at the apartment.’’

Scoggins went to headquarters and
sent both'a°TAC squad and, some
plainclothesmen to: keep watch on the

' apartment house. Then he and fellow

investigators returned to scour the area
where the apartment house was located
in the hope of finding Webster and Ber-
tolloti. When their‘efforts had. brought
no results by 3:00 a.m., Scoggins called
the search off and. went home.

In the early hours of Wednesday
morning and with,only a few hours of

sleep, the investigator picked up Web- -

ster’s relative, took her to the Mu-
nicipal Justice. Building to put her
statement on tape and then drove her
home. He was back at his desk, deeply

63


nvolved in __ She would have been able to fight off an on Wednesday, a communications offi-
. driving to attacke?.”’. eh. ‘cer at headquarters phoned the in- .
g Ward to -' The questioning of neighbors contin- vestigator at his home to inform him that
ne for his ued on. a nonstop basis, with even the | Ward’s car had been found; it was parked:
doubt that }_ . slimmest leads commanding a thorough _ inthe rear of a downtown Orlando apart-
ind to have follow-up. The only lead that seemed to _ ment building; the window on the driv-
ard’s mur- hold some promise, however, came from _ er’s side was open, and the keys were in .
'e reason to a woman who lived about a mile fromthe _ the ignition. at
nect in the Ward home. She said that early on the ‘‘Two residents of the building heard
ted to start morning ‘of the murder, a black man an announcer give description of the car,
juare one. ° walked up to her house, carrying a along with its tag number, on tonight’s
morgue to r rolled-up newspaper. When he rangher eleven o’clock news,’’ the com-
psy. The bell, she did not answer the door but munications officer reported. ‘‘They re-
his initial’ ‘talked with him through an open win- membered noticing such a car late the
death. and dow. ‘‘He'asked me questions about the day before but thought at that time that it
also been - Rosemont area,’’ she said, ‘‘but I some- belonged to a man who frequently visited
Scoggins how had a feeling thathe was casing my a friend living in the apartments. :
the killing house. When he left, he walked toward ‘‘After hearing the tag number over _ Det. Randy Scoggins headed the inves- ©
range hair - that part of the Rosemont subdivision in TV, they went outside to check. The tigation into the brutal stabbing of -
rocessed. . which the Ward house is located.’’ number given by the newscaster matched Orlando housewife Carol Miller Ward.
ir sample _.,. Meanwhile, print and electronic news the number on the car’s license plate. ae ‘ :
contained ~ Media wereé giving the Carol Ward slay- They notified us immediately.” - Hoping that the person who left the car
ir and cat ing extensive coverage, and for Scog- **Thanks,’’ Scoggins said. ‘‘I’ll take parked at the rear of the apartment build- “ ':
ped from gins, it paid off. Shortly before midnight it from there.”’ ing might return, Scoggins had the area -
om rather 2 : : staked out. SeVeral officers, hiding in
the tech- vantage spots, kept watch on the car for
iple prob- the rest of the night. When no one
‘oom and, approached the vehicle by eight o’clock
otha Thursday morning, the investigator re-
is no quested the help of a tracking dog.
wom OF The highly trained German shepherd }
-picked up a scent from the driver’s seat 3
unding as and began following it easily enough, e
but. ‘‘We but the trail ended within a short diss 9
tion to go tance. ‘*That indicates,’’ the dog’shand-  . =
ler said, ‘*that the person driving Ward’s
hbors, all . car either had another car waiting or lives
ws of the : somewhere in the neighborhood.’’ Scog-
n but no: . gins had the car towed to an undisclosed
neighbor ‘area to be searched for fingerprints and
¢ Ward's other possible sevidence. Nothing of :
-year-old value resulted from this search. ee
letocare During the ext several days, Scog- ie
1 Ward’s 4 gins continued“with the questioning of |.
hich also relatives, neighbors and strangers and
1e’d seen with the searching for a clue of some 2
gptenee ya kind at thé*érime’ scene. No lead came 2.
londay to from these efforts. Ongoing coverage of
he neigh- the case in the newspapers and on televi-
sick and sion and radio dropped to a couple of
ind Mrs. lines of print or just a few brief an-
) counsel nouncements; and ‘phone calls from
200d diet known and anonymous callers dwindled
aS a very to almost nothing. - -, aes
Il either... But Det.:Scoggins refused to believe
ing her to the case might be reaching a dead end.
‘Somebody out there .knows some-
:d on the i thing,’’ he; kept telling -himself. ‘‘I’ve
_ ‘She was 4 got to get to. that person.’’ With this
iney ail- belief, he kept on exploring old and new
| garden- . trails, turning over every already-well-
climbing ; turned stone. jj; fh) :
the front At 10:15,a.my/on Monday, October
ere few, : ann -3rd, Scoggins was at his desk at
links? Lawmen found blood spattered on the victim’s dressing room vanity and carpeting, “(Continued on page 60)

: 31

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* saiinlaiiaiei ORR GATS
‘ per Hive! incephiane bs
phon? ge
ulling the trigger and ‘he: had not

ded to do so; but, suddenly; he had
a red mark appear on the tip of her
and Monique had slid, back into the
rand eradually ‘onto the floor.

> hac

d and that she was not breathing. He

had telephoned | to Jacques at the
nastics 'meet.“He had not intended
acques to bring Francine home with

: “i Gy: bits é

spector Blondel was not entirely sat-
d with this confession. If the shoot-
as sO unintentional, practically an
en how was it that Leroy had

ong enough: to wipe his own -

-rprints from the rifle and place it in
ique’s hands?’

himself up immediately, but that he
an underage adoptive daughter to
after. If he were sent to jail, Fran-
would have’to go into an orphan
m and he knew that she dreaded this
eallelse. He had, therefore, ‘tried to
the shooting look like: suicide.

at about the’ note? the inspector

wy
Toy ‘said that he shad noe written it,
ique had. but not at that time. Every
that had attempted suicide pre-
ly s... ..ad left him a farewell note
e had kept some of them, This was

‘for it was precisely the cryptic re-
“made by: Monique in this note
-had first aroused the inspector’ s
cion. Even now, he was still into

termined, with the exception of Jac-
e’s complaints, concerning sexual
rmance, they had found: nothing
wrong with him. Yet,’ Monique
entioned this in every suicide note
Teroy had..kept. The idea had
ently become a sort of obsession
her and it was: impossible: to’ say
ier it had any foundation or not. On
asis of her long record of mental
ms, it was. quite possible that the
- complaint was imaginary.
is ire howeyer, not the only mys-
On basis ‘of the statements of
cal.y very. person. who had ever
n Leroy at all, he was a man with an
ely mild, stolid nature. No one

ed forward ta help her, but -
 —_ that her mouth’ was full of |

immediately. called the ‘ambulance.

roy replied that he had been ready to

ed to know?: Had. he written it him- -

ne that he had @ thought most. /appro-

, ‘had, of course, ‘been badly mis- »

ied with the confession because
had said nothing to clear up the ©
ty of Monique’s claim that she —
knew what his other‘wives had :
wrong with him. Insofar as could —

tid all

€ ; CE 2%
had ever seen him very excited with the

exception of the interrogators when they
had touched on the subject of Francine.
Yet, according to his statements, a quar-
rel with Monique on a subject which had
apparently been previously broached on
many occasions, had put him into such a
state that he had murdered her without
knowing what he was doing.

There was no explanation ever offered
for this all although the inspector private-
ly believed that the quarrel had not been
over their sexual relations, but over
Leroy’s-relationship-to his adopted
daughter. He suspected that, rightly or
wrongly, she had accused him of an im-
proper intimacy with the teenager. It was
probably the. one thing that would have
roused Leroy to murder.

Whatever the case, Leroy was
obviously far too devoted to Francine to
reveal anything unfavorable about her or
to her. Francine was also apparently very
attached to her adoptive father, and she
could not even be interrogated by the
police because of her age and also be-
cause she was in no way directly in-
volved in the murder.

Jacques Stevens was also not in-
volved, although he had made a very
cooperative statement to the police. It
was, however, worthless and. he

~ obviously knew nothing about his moth-

wh mal

er’s relationships with Pierre Leroy or of :

Leroy’s relationship. with his adopted:
daughter. All he could do was confirm,
that Monique had suffered from suicidal.

tendencies practically all her life. © *

- This being all that he was going to get, |

the inspector took Leroy before the’ ex- ;
aminations judge and obtained an indict-.

ment for homicide. As a property owner.
and the owner of a business, Leroy was: |

permitted to remain free on | bail while.
awaiting trial. ,

This took place only two years later as_
the prosecution was anxious to answer

some of the still unanswered questions in.

connection with the case.
They were unsuccessful in this, and on

February. 11,
sentenced to the modest term of. five

years imprisonment. He went off to’.
serve ‘it almost cheerfully. His most. -

dreaded problem was solved. Francine:

was now eighteen and would never have |
to go to the orphanage: .

’

EDITOR’S NOTE: pee
Francine Dahlat, Jacques Stevens,

1983, Pierre: Leroy was:

Joseph Lunt, Victor Blondel, Jean-Marc .

Ferrier and Herve Sauvonier are not the . .
real names of the persons so named in.

the foregoing story. Fictitious names .
have been used in order to comply with
Belgian police regulations.

headquarters reviewing notes and reports
when Officer Jim Bishop, of the commu-
nity relations department, called him on
an interoffice telephone. Bishop coor-
dinated the activities of Crimeline, a
police department/community phone-in
program that pays up to $1,000 for in-
formation leading to an arrest or indict-
ment in a felony crime. -

Bishop spoke quickly. ‘‘I have a White
female in the Crimeline,’’ he said, ‘who
suspects that her boyfriend was involved
in the Rosemont murder. She’s very
frightened; I’m afraid she’s going to
hang up. I have someone trying to keep
her on the line,”’

‘*For God’s sake, keep her talking,”
Scoggins directed. ‘‘I’ll be right up.”’

Bishop’s office was two flights: up.
The investigators bounced up the stairs;
he couldn’t afford to lose a split second
with a slow elevator. Thankfully, the
caller was still on the Crimeline when he
reached Bishop’s office. He took over
the phone, introduced himself and put

the woman, who gave her name as Ber-

nice Webster, at ease.

t

® STOPPED MOVING CONTINUED FROM PAGE 31 a

‘I’m not telling you that my boyfriend |

did this murder,’’ Webster said, ‘‘but I
am telling you that there’s some things I:

can’t understand since the murder oc-.:
curred. As I say, I don’t know that he did»
it, and I really feel bad even calling be- ; :

cause I love the guy.’
‘‘Don’t worry about it,’’ Scoggins

%

said. ‘“‘If he didn’t do it, I'll be able to.

decide that. And we’re not going to arr- .
est him just because you think he might -
have done it.’

‘*As I say, he may not have don it,
but he’s just really acting strange and
he’s doing these things,’ * the woman ex-
plained. :

Scoggins convinced the woman to let
him pick her up and bring her to the

Municipal Justice Building where they

could talk more comfortably. After com-

pleting this mission, he took Webster |

into an interview room. ‘‘I’m going to...
get acup of coffee; can I bring you one?”’.

none affirmatively.
Scoggins got the coffee then began the
interview.

he asked, trying to put her at ease. She :¢

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“Webster gave the name of her .boy-

* © friend as Anthony Bertolloti, 31, and
“named a street. in downtown Orlando
where, she said, the two rented an apart-
“ment. ‘‘The apartment is in a house, not
"jn a regular apartment building,”’ she
‘explained. Scoggins took specialinterest
~ in the address because it was only about a
mile away from the downtown apartment
* building where Ward’s Ford Torino sta-
- tion wagon had been found. |
+: **Okay,’’ he said, when the initial
formalities were over. ‘Why don’t you
* just go ahead now and tell me the whole
“story in your own way?’%)
<- , ‘I hope I haven’t done the wrong
thing by coming here,’” Webster said
somewhat hesitatingly, ‘*but I just hap-
pen to remember Tuesday, September
twenty-seventh, the day of the murder
“ "very well. It was the day I had to get
' "some money to pay the rent. Anthony
‘didn’t have any, and I didn’t have any.
He left the apartment early to go to his
Hob." gee
“” “He has ajob then?’’ Scoggins asked.
_ ‘At a country club. He works on the
grounds there, laying sod or digging up

Dek

dirt or something like that.’’ Webster
named the country club.
-- “That's a pretty good distance from
-- where you live,’ Scoggins said..*‘How
* does Anthony get there? Does he have a
car?”’ SNS Ss ei od
‘‘No. Another guy who works out
‘there picks him up every morning. An-
... thony walks a couple of blocks up the
“street and meets him.’ 7.

i “Okay, g0 0m." 8g. ah!

_“‘T went out for awhile after Anthony
left. I got back to the, house around
eleven o’clock and was'surprised to see
- that Anthony was already back there,
sitting on the doorstep, waiting for me. I
_said, ‘What are you doing here?’ and he
~ said, ‘I already went out to work and
made some money. I missed my ride up
to the country -club, so 1 went to that
temporary job place and got some work.
See, | made some money.’

‘‘He showed me some bills. 1 don’t
* know how many; they could have
* amounted to anything from twenty dol-
lars to fifty. I asked him. where he made
this money, and he said the temporary

(Lockhart. I thought that was kind of

62

ey grabbed her an

puonsnomonononcmonemenonononouoncnonenonenonon

job place sent him up to a warehouse in |

strange..1 know enough about the tempo-
rary job-business that you don’t go out at
six or seven o'clock in the morning and
be back home with money in your pocket
at eleven a.m. I felt he was lying to
me but didn’t say no more about it at the
time.”"y 2%

Webster added that she then noticed
that Anthony had changed clothes but
didn’t say. anything about that at the
time, either. ‘‘That night,’’ she contin-
ued, ‘‘instead of going to bed at our

‘regular time, Anthony specifically
wanted to stay up to watch the eleven
o’clock news: He really paid close atten-
tion to the news about the murder. I said
to him, ‘Look there. That murder is up in
Rosemont; that’s not too far from Lock-
hart where you worked today.” °’

‘*‘What was his reaction to that?”’
Scoggins asked.

‘tHe just acted sort of strange, just
shook it off. And that was the end of it.”’
Webster stopped talking at this point.

Is that it? Is, that what you’re basing
your suspicion that he may have been
involved in the Rosemont murder on?”’

**No, there’s more. Anthony is an ex-

tremely, highly sexual man; he has to
‘have sex several times a day. He didn’t
want sex that night and, all of a sudden,
for the next few days, he didn’t want sex
anymore at’ all. He acted like he didn’t
want to get around me. This was very
unusual because he’s a. very demanding
sexual partner.”’

‘**Okay,’’ Scoggins said. ‘*What
next?”” 4°.

.**The next morning, which was
Wednesday, I was going to do laundry,
and I remembered about the clothes. |
asked him where was the clothes he wore
to work the previous morning. He said he
didn’t. know, that they were around
somewhere: I' thought that was strange.
We're. poor people and we don’t have
enough clothes as to how you can afford
to just leave them around somewhere and
not remember where. That got me to
really thinking. I went to the temporary
job place and found out that they sent

- Anthony to a warehouse job in Lockhart
like he said. But what he didn’t say was
that he walked off the job no sooner than
he got there and the agency had to send
up another man to replace him. Mind you
now, I don’t know for sure that Anthony

had anything at all to do with the Rose-
mont murder; all I know is he’s been
acting funny since it happened.”’

Scoggins taped Bernice Webster's _

statements then drove her home. -

The investigator knew that Webster’s
story did not give him probable cause to
arrest Bertolloti, but it certainly put him
in the area of the crime at the time it was
committed; and the fact that Ward’s sta-
tion wagon was found only a mile or so
from where Bertolloti lived was signifi-
cant, too.

Det. Scoggins went to check with the
job agency. Records there verified that
the company had sent Bertolloti to a
warehouse job in Lockhart and that,
shortly afterward, they had to send a
replacement. The man who drove Ber-
tolloti, and who had to make a second
trip with a man to replace him, said that
on his way back from the second trip he
saw Bertolloti walking down the road.
‘I thought he needed a ride, so I stopped
and told him I was sorry I couldn’t pick

him up because it would probably make ,

the manager at the agency mad, and I
might even lose my own job if I did. He

d she tried to take the knife —

said that was okay and walked on. He;

was heading toward the Rosemont sec-

tion, which is about a mile to a mile and .

a-half from the Lockhart site.’’

Later on Monday afternoon, Scoggins

went to the job site in Lockhart and
talked to the warehouse manager, who
also verified he’d had to request.a
replacement for Bertolloti.

Back at headquarters, he asked In-

vestigator Dave Smith to get Bertolloti’s
fingerprints somehow from somewhere .

and to find out whether the possible sus-
pect had an arrest record. 7
The following morning, Tuesday,
Bernice Webster phoned Det. Scoggins
and again sounded highly nervous. She
said she’d confronted Anthony with the
fact that he’d lied to her. ‘I told him,”’
she said, ‘‘that I knew he hadn’t worked
at the Lockhart job on Tuesday, Septem-
ber twenty-seventh, and I wanted to
know where he was.”’

‘*What did he say to that?’’ Scoggins
asked.

‘*He didn’t ‘say anything. So then |
told him I happened to know the police
wanted to question him about the Rose-
mont murder. He got very angry and left.

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Gulfview Hotel which they owned. About 1915 a Church
building named St. Mary’s was completed on First Street.

Bilowery Baptist Church, later spelled “Billory.” The picture was
taken around 1904. Although the picture is faded, the author can
be seen in his father’s arms in the front row.

176

wh
e

Chapter 28
Marius Martin Davis

There were three Davis families living in Santa Rosa County, in
or near Mary Esther, in 1880. They were Martin Marius Davis,
born in Alabama in 1836; Thomas Davis, born in Alabama in
1834; and William (Billy) Davis born in Alabama in 1838. Their
parents were born in South Carolina. They. were living in the
vicinity of Cracker’s Neck shortly after the Civil War. Marius M.
Davis enlisted in Company “E” First Florida Infantry in April, 1861,
and was mustered out April 4, 1862. He reinlisted the same
month. William Davis enlisted in the same company March 11,
1862.!

The wife of Thomas Davis was named Margarette, born in
Mississippi in 1836. Their children were: James born in Florida in
1859; William and Willis (twins) born in Florida in 1861; Martha
born in Florida in 1863; Margarette born in Florida in 1869; and
Mary born in Florida in 1871.

The wife of William was named Savannah (probably Savannah
Donaldson) who was born in Florida in 1845. Their children, all
born in Florida were: Harmon born in 1860; Jesse born in 1865;
Joseph born in 1867; Priscilla born in 1872; Susan born in 1875;
and Jefferson born in 1878. Many of these names were familiar to
the author in the early years of his life.

More familiar to me was the family of Marius Martin Davis,
whose second marriage was to Nancy Donaldson at Mary Esther,
"North Station.” The ceremony was performed by Reverend
John Newon July 13, 1869.2 Nancy was the sister to my maternal
grandmother, Saphronia Donaldson Lowery.

Children of the first marriage were: William J. born in 1862;
Martin, Jr., born in 1864; and Sarah born in 1866. Children of the
second marriage were: Harrison who married Sarah Jane Allen;
Coleman who died in his early teens; Minda who married Dallas
Barns;3 Indiana who married Bert Brown; Melinda who married
Robert Littlefield; and Manda who married Henry Hicks.

For anumber of years my family made rather infrequent visits
to the home of Uncle “Bud” and Aunt Nancy Davis. We livedona
homestead between the Donaldson Ford on Big Panther Creek
and the head of Little Panther Creek. When we visited my
mother’s sister, Mrs. John Broxson, who lived at the head of

177


:
|

Don’s Bayou at Cracker’s Neck (now Wright), we went by horse
and buggy around the head of Prairie Creek, crossing Liveoak
and Turtle Creeks on bridges and on to the Broxson home. We
always stoppéd to visit with the Davises who lived over the hill
from the bridge over Turtle Creek. From the giant walnut trees
that grew in the yard, it was evident that they had lived there for
many years. We lost contact with the Davis family when we left
the homestead and moved to the Sharp Broxson place, two miles
north of the present East River Bridge.

In 1917 we were shocked to learn that the Davis couple had
been murdered. In an interview with Sarah Jane Davis, elderly
widow of Harrison Davis, | learned her version of the brutal
slaying of the elderly couple nearly sixty years ago. According to
her, four people were involved in the murder plot. | was told that
a woman went to live with the Davises to learn where their
money was kept. After she went away, Bob and Will Blackwell,
with a man by the name of William Boyd, went to the Davis home
about dark on the day of the murder. They had blackened their
faces with shoe polish to prevent recognition. They asked for
food and Aunt Nancy gave them baked potatoes, probably the
only thing left from their dinner. After they had eaten, they went
into the woods where they started a forest fire to draw Harrison
and Melinda away from their parent’s home. The two rushed to
the nearby home of Melinda to use a telephone to report the fire
to the forest rangers. On the way back to their parent’s home
they heard shots in the direction of the house. Harrison, thinking

the shots were fired by the rangers, fired an answering shot. :

Melinda’s baby had been placed in the arms of her dead
grandmother. It was thought that Aunt Nancy carried the family
savings in a money belt around her waist. The murderers,
hearing Harrison’s shot, ran away without getting the money.

The news spread quickly, creating great anger and excitement
in the county. Many people joined in the search for the killers.
Henry Hawkins of East Milton, formerly a neighbor, drove a big
stallion to death trying to reach the scene of the tragedy. He took
the harness off the horse at Prairie Pond and was picked up by
someone with a Model T. Ford. Ink Helms, also from South
Milton, joined the search.

Bob Blackwell’s confession givesa slightly different account of
the brutal murder:

178

! was working at Sylacauga and Will sent for me to come
down saying that he had a Proposition where we could
make some money and have no trouble. He said the old
couple had $15,000 in a trunk and we could get jt without
hurting anybody and split it, each getting $5,000. We got to
thinking how easy the money could be made and we agreed
to the proposed robbery. Will said he knew the people well
and they kept the money in a trunk in their bedroom.

We got some shoe polish from Kress in Pensacola and
went to Crestview. We walked through the woods until it
seemed we had walked fifty miles. Our feet were sore and
even bleeding. We got to the neighborhood of the house
and stopped to rest and wait for nightfall.

While waiting we blackened our faces so that we
would look like negroes, and after dark we started again.
We went a little piece through the woods and Will called for
us to stap and-wait until he returned.

He left us and stayed awaya little while and thencame
back inan hour and told us everything was all right. After we
went over the robbery again, we went to the house.

Will told us to go in the house and ask for a drink of
water and Boyd and | went in and when we asked for water
Mr. Davis told us where the water was and we went around
and got some water. We sawa big fire down in the woods a
good piece away from the house and someone left to gotoa
telephone to notify the officers at the forest station.

We went back to the front where Will was and he told
us to go in and demand a trunk from the old people telling
us there would be no trouble at all. We did not want to goin
without him, but he insisted and said that he was known to
the old people and they would know him through the black
polish. We finally agreed.

We went to Mr. Davis and demanded .that he give us
the little trunk. | told him | did not want to hurt him but we
wanted the trunk. He pulled a Winchester from underneath
the mattress on his bed and started to raise it. | told him not
to shoot for all we wanted was the trunk. | begged him not
to fire that we would not hurt him but he started raising the

gun and | shot him to keep him from killing me. The first
shot staggered him and he lowered his gun but started to
raise it again and I fired two more shots at him and Will
Boyd, who was standing close to me, fired at him one time.

We heard Mrs. Davis telling her husband to shoot us
and begging him to kill us. But he did not try to shoot us
anymore and I turned and started back toward where Will

179


ALABAMA
3

¥
i!

4

BLACKWELL, Robert, whi

4

analy enig ao oe nll

ite, hanged Crestview, Florida, July 23, 1920.

Pioneerin
In The
Panhandle

A look at selected events and families as

a part of the history of South Santa Rosa
County, Florida.

By
William James Wells
ABE - MA

Copyright © 1976 by William James Wells.
Printed by Jerry G. Melvin, Melvin Business
Services, Fort Walton Beach, Florida.

All rights reserved.

permission from the Author,

Webra y dder

No part of this book may be reproduced in any manner without

F
3/7

OY
Wey

740 79: SOUTHERN REPORTER (Fla,

stricken from the record after the harm had
been done; but at no time did the judge ad-
monish the assistant state attorney about the
impropriety of such remarks and instruct
him to discontinue them.

The record contains about 1,200 pages of
testimony, the greater part of which consists
of irrelevant and immaterial matter. On
the part of the state there was a very con-
siderable portion that was not properly in
cross, but was admitted over the objection of
the defense; but when Will Blackwell asked
one of the state’s witnesses, on cross-exami-
nation, a question which he thought might be
helpful to his defense, it was objected to by
the state as not “properly in cross,” and the
court sustained the objection. When Will
Blackwell was on the stand in his own behalf,
he was interrogated by one of the jurors
about his escape, and in giving his explana-
tion of it he said:

“After they made the proposition to me in
Pensacola, I knew, if I couldn’t get a change of
venue, the conditions were such I didn’t have
no chance to have a fair trial, and I knew it.
I knew I couldn’t possibly have a fair trial;
they forced me to trial without any chance to
make my defense—without any witnesses.
thought Mrs. Atwell was going to be a witness
all the time until I came up here and was ar-
raigned. I saw I was going to be convicted. I
thought before that she was going to be a wit-
ness for me, and I knew I could not be convicted
with three witnesses in my own home to
swear—”

He was then interrupted by the assistant
state attorney, who said the defendant might
reserve his argument until all the evidence
was in, and the court of its own motion said
to the prisoner, “Just answer the question.”

Throughout the trial the greatest latitude
was allowed the assistant state attorney,
but the defense was held to the strict rules
of evidence and procedure.

securing an impartial jury. The court took
testimony upon the issue thus made, and de-
cided against the defendants.’ The testimony
amply sustained this decision, and its correct:
ness was further attested by the procurement
of a jury of 12 good and lawful men, accept-
ed by both parties. Roberts v. State, 72 Fla.
132, 72 South. 649. Loa

The statute under consideration concludes
with these words: Gry '

“Such application shall fully and distinctly
set forth the facts upon which the same is
founded.”

In other words, it is not sufficient merely
to say that the defendant is odious, or that
the presiding judge is prejudiced, These
statements would be mere conclusions. The
facts must be stated, so that the court may
intelligently pass upon the motion. Other-
wise, a defendant charged with a serious
offense, or even a hard-pressed defendant in
a civil suit, might trifle with the court and
the law, and bandy the case around from
court to court, in the hope that time and cir-
cumstance might mitigate the inclemency of
his plight.

Defendants’ counsel recognized this prin-
ciple of law, and undertook to state the facts
upon which the allegation of the judge's
prejudice was based. These facts are stated
as follows:

“That the judge of the said court, without
other or further reason than that the people of
the county of Okaloosa demanded ‘speedy jus
tice’ and no delay of the law, acting at the be
hest of such public sentiment, has called this spe
cial term of court to try the said defendants
when according to the statutes of the state o
Florida the regular fall term of said court would
commence on the last Monday in August of this
year.”

Section 1471 of the General Statutes of
1906, supra, requires that the facts showing
the judge’s prejudice must be set forth. If

We consider it necessary to call attention|tpe sworn application for change of venue
to these matters, so that another trial of the] states facts which, if true, would require a
defendants may be free from similar im-| change of venue, these facts cannot be dis.

proprieties.

puted; but if the facts stated are not suffi.

The judgment is reversed, and a new trial cient, admitting their truth, to require a

awarded.

change of venue, the trial judge may ignore
them. ‘Therefore the facts set forth in the

TAYLOR and ELLIS, JJ., concur. WEST, above quotation are admitted, and the ques-

J., disqualified.

tion is: Do these admitted facts show the
presiding judge to be disqualified by reason

first error found by the majority is developed
under the second assignment, which questions
the refusal of the court below to grant a

Section 1813 of the General Statutes of

1906 provides as follows:
“The judges of the circuit courts are author-

change of venue. The motion for a change of| jzed to order and hold extra and special terms
venue was based upon the alleged prejudice| of said courts whenever in their judgment the
of the presiding judge and the ill repute of public welfare and the cause of justice require
the defendants in Okaloosa county. This the same.

motion was made under the provisions of sec-

Did the judge in the case at bar act from

tion 1471 of the General Statutes of 1906,| any other motive than that here set forth by
which provides that the opposite party may/| the Legislature? Comparing the language of
deny the truth of any allegation of the mo-|the application for a change of venue with
tion, except the allegation that the trial judge| this last-quoted statute, it seems to me that
is prejudiced, when such allegation is made. | the phrases ‘‘the public welfare” and “no de

The state did traverse the truth of the al-| lays of the law” are closely akin, ag also
legation that the defendants were so odious| often may be “the cause of justice” and

in Okaloosa county as to prevent them from “speedy justice.”

OA

Doh eA mt ee ee

celia co aia a ee ae BF

Fla.) ‘BLACKWELL y. STATE 741

A revolting crime had been committed in
Okaloosa county, and the people very natu-
rally demanded “speedy justice.” They want-
ed a grand jury impaneled, in the first place,
while all the evidence was available; and
at the time the ‘special term of court was
called they very naturally wanted the case
tried before one or both of the defendants
had further opportunity to escape, as-one of
them had done at. the former trial. That the
presiding judge knew of these public senti-

ments, and was influenced by them in calling
a special term of the circuit court, is not |:

equivalent to, prejudice against the defend-
ants personally. ..

In the case of Purvis v. Frink, 55 Fla. 715,
46 South. 171, this court said the statute here
under consideration “must be construed. to
mean that the prejudice which will disqual-
ify a. judge must be a prejudice against a
party to the cause, and not a prejudice based
upon the possible incidental opinions and
views.” “Prejudice,” in the sense in which
the word is employed here, means such a
state of mind of the presiding judge that it
may be said he has prejudged the case and
come to the conclusion that the defendant is
guilty. The mere fact that he has been in-
fluenced by outraged public sentiment in the
calling of a term of court to try parties ac-
cused of horrible crime does not by any man-
ner of means show that he has prejudged
the case and reached the conclusion that the
defendants were guilty of that crime.

The majority opinion holds that, when a
circuit judge convenes his court in special
session for the purpose of trying a defendant
accused of a revolting crime, he thereby
manifests such prejudice as disqualifies him
and sends the case to another county for
trial. For the reasons already stated, I can-
not concur in this holding. As I have pointed
out, the Legislature has provided for such
special terms, and, so far as I am able to
ascertain, the convening of them has never
before been held to prove the prejudice of the
presiding judge.

The further holding that the application
for change of venue on the ground that the
presiding judge is prejudiced against the ap-
plicant need state nothing further than the
conclusion that he is prejudiced, considered
in conjunction with section 3998 of the Gener-
al Statutes of 1906, which provides for ad-
ditional changes of venue on the same
ground, will, in my opinion, so ensnare the
feet of justice that swift legislative action
will be necessary to save the courts from
disrespect and ridicule. In the case of Pur-
vis v. Frink, supra, the application for
change of venue stated that the judge was
prejudiced, and undertook to state facts

showing that he was prejudiced; but this.

court held that the showing of fact was not
sufficient to support the general allegation.
In the body of the opinion in that case these
words appear:

; ' Rag int “ot Pass i on ; rhs. oa

“It will be observed that the application for
change of venue nowhere alleges any facts tend-
ing to show any prejudice on the part of the

circuit judge. *. *

‘And in a_ brief concurring | opinidn Mr.
Justice Taylor pointedly states the matter
thus:

“The application for change of venue states
in general terms the legal conclusion that the

judge is prejudiced; but, when the facts are
stated that comprise this alleged prejudice, they

do not even tend to show any prejudice on the

judge’s part. . *,

Men accused of crime sasht not to be il-
legally tried and convicted to save them from
a mob, nor should any man be tried by a
prejudiced judge; but a judicial holding that
a special term of court cannot. be called
without disqualifying the judge who calls
it from trying defendants, accused of heinous
crimes, and that the defendant may trans-
port his case from court to court upon his
bald, unsupported,: and unexplained state-
ment that the several presiding judges be-
fore whom he comes are prejudiced against
him, can but add to the public impatience
of the law’s delays, and cause fresh out-
breaks of mob violence,

The several remarks in reference to the
pardoning board and the Supreme Court, in-
jected into the case by the assistant state
attorney, were indecorous and irrelevant, to
be sure; but I cannot hold as fatal error the
refusal of the presiding judge to strike them.
Every normal man in the state knows that
there is a Supreme Court and a pardoning
board, and that practically all capital cases
are reviewed by both of these tribunals; and
a reminder of their existence could not have
materially influenced the jury in the per-
formance of their sworn duty.

As to the testimony of John Helverston
concerning old man Saunders and his dog,
it is a close question whether it might mere-
ly show a tendency of the defendants to com-

mit violence against old peopie having mon-

ey, which would be improper. evidence, or
whether it might have gone to show a general
plan and purpose to commit several such
crimes; this latter especially in view of over-
whelming testimony that Will Blackwell had
tried to enlist the help of several other men,

at different times, in violently taking money.

from old people, including the Davis couple,
for whose murder he was on trial. As an
abstract proposition of law, evidence going
to show the tendency of the defendant to
commit crimes similar to the one for which
he is on trial is improper. Whar. Crim.
By. (10th Ed.) p. 247, and cases there cited.
But there are some notable exceptions to this
rule, and one of those exceptions was elucl-
dated by this court in the case of Wallace
v. State, 41 Fla. 547, 26 South. 713. In this
case Mr. Justice Carter, after stating the
rule, proceeds as follows:

“All the authorities concur in the view that’

evidence of defendant’s acts prior or subsequent


SSS ee
.

742 79 SOUTHERN REPORTER (Fla,

to the alleged offense, which logically tend to
prove the criminal intent, or guilty knowledge,
where they are material, is admissible; and like-
wise where the crime in question is one of a
system of criminal acts occurring so near to-
gether in point.of time and so nearly similar in
means as to lead to the logical inference that
they are all mutually dependent and committed
in pursuance of the same deliberate criminal
purpose and by means: planned | ‘beforehand,
evidence of such other acts is admissible, even
ee | those acts amount to another criminal
offense i

‘See Presley Vv. . State, 63 Fla. 37, 57 South.
605. 1 npr ’

But, even admitting that this particular
testimony was irrelevant, ull the sting was
taken out of the error when, as stated in
the majority opinion, it developed that Will.
Blackwell probably wanted the dog killed,
so that he could go to see a young woman
living in the Saunders house.

The majority opinion seems to have been
largely influenced by the general attitude
of the judge and state attorney during the
trial of the case, and a number of instances
are pointed out as amounting to unfairness.
The assistant state attorney, who had active
charge of the case, was evidently convinced
beyond doubt of the guilt-of the defendants,
and he prosecuted them with zeal and vigor.
In the heat of the contest he said and did
many things that he ought not to have said
and done, and that he probably would not
have said and: done in calmer moments;
some of these things being pointed out in
the majority opinion. It is also true that
the presiding judge was strikingly lenient
with the acting state attorney in his rulings,
and that at many points where he had dis-
cretion he exercised it in behalf of the prose-
cution. But I do not believe it can be said
that he abused his discretion to such a point
that the defendants were thereby injured. —

‘The general attitude of'the judge and state
attorney may not support an assignment of
error, nor is there any ‘attempt to assign it
as error. And, as I understand it, the prov-
ince of this court is to review cases only
upon assignments of error.

It is also true that the testimony was con-
flicting, as is to be expected in cases of this
kind; but the law constitutes the jury the
judges of conflicting testimony, and a jury
has exercised that function in this case,
The verdict of guilty is supported by evidence
which the jury had the right to consider to
the exclusion of all other.

Unless wholesale perjury has been commit-
ted on behalf of the state, Will Blackwell’s
guilt appears to be established beyond a rea-
sonable doubt, A jury who saw the wit-
nesses and heard them testify decided that
Robert Blackwell also was guilty, and there
was testimony legally sufficient to support.
this decision, which has also been approved.
by the presiding judge in denying the motion

for new trial, one ground of which is that
the Verdict is not supported by the evidence.

_For these reasons, I cannot concur, in the
majority opinion,

WHITFIELD, J., concurs.

i’

(76 Fla, 48)
fORMAN et al. v. FIRST NAT. BANK OF
; QUINCY et al.

(Supreme Court of Florida. June 25, 1918.)

(Syllabus by the Court.)

1. SUBROGATION €==23(3) — ADVANCES OF
Money DISCHARGE OF LIEN.

Where one loans money upon real estate
security for the express purpose of paying off
prior existing liens upon such real estate, and
it is expressly agreed that intervening liens
thereon will be released or subordinated to such
security, and the money loaned is so used, and
a bona fide though futile effort is made to sub-
ordinate such intervening liens to such security
and thus give to it the same legal status as
that occupied by the liens that are so paid off
he will be treated in equity as an equitable
assignee of such liens and will be subrogated
to the rights of such lienors to the extent that
the money advanced by him was applied to the
payment of such liens.

2. SUBROGATION G27 — AGREEMENTS —
EXPRESS AND IMPLIED.

The agreement out of which conventional
subrogation arises and upon which it rests may,
be either express or implied.

8. SUBROGATION €=>23(3)—PAYMENT OF Ly

—“ VOLUNTEER.”

One who, upon the application of the owner,
lends money upon land understanding that his
security shall be a first lien thereon, and the
money so loaned is used to discharge then ex-
isting first liens upon. such land, is not a mere
“volunteer.”

‘[Ed. Note—For other definitions, see ‘Words,
and Phrases, First and Second Series, _Yolun-
teer.] ‘

Ellis, J., dissenting. ,

, Appeal from Circuit Court, Jeckaon, Coun:
ty; ©. I. Wilson, Judge.

Suit by the First National Bank of Quin.
cy and -others against. George, M, Forman,

-and others, as copartners under the firm

name and style of George M. Forman & Qo.
Decree for complainants, and defendants ap-
peal. Reversed, with directions.

Blount & Blount: & Carter, of Pensancld!
and Wm, B. Farley, of Marianna, for ap
pellants. Paul Carter, of Marianna, for ap-
pellees. _ aad sar’

WEST, J. This is the second time’ this
case has reached this court. On the former
appeal (First National Bank of Quincy v,
Guyton, 72 Fla. 48,-72 South. 460) the ques-’
tion now presented was not involved. f

The complainant banks in the original suit
filed their bill to foreclose a mortgage upon
certain real estate in Jackson county, made
by Moses Guyton and his wife to J. H. Car
ter.. This mortgage was made on January,
12, 1909, and» was given to secure the pay-

€—For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


a

Texan IsC onvicted

By Jary in Bay of _|:
| -Ist-Degree Murder}

PANAMA CITY, Sept. 6 (UP1),
A cirecult court Jury found a 31.
year-old Pasadens, Tez. man
sutlty of fires degree murder late
yesterday in the holdup alaying
June 21 of tavern tla! John-
ny Beverly,

Emmett Clark Blake admitted

‘holding up the tavern in pearby
‘Brannonville and killing Beverly

‘and a customer with a sawed off |:

ehotgun.

Blake pleaded innocent™ to the
murder charge.
| The Jury, aner a kve-didh-iat
“found Blake guilty with no o recom
mendation for mercy’ which
makes a death sentence mands
tory. Judge Robert L. McCrary
oe immediately sentence
B

—t

THE FLORIDA TIMES-UNION (Jacksonville)

Friday,

page 26.

7 September 1962,


A-6 The Orlando Sentinel, Saturday, July 28, 199)

a

oe

Rs
#3

Bertolotti has last words but s*i{f6

“EXECUTE from A-1

him of the decision by the 11th
Circuit judges.
‘. Bertolotti, his eyes darting
“around the room, looked nervous
as he was led into the death cham-
ber and strapped into the 67-year-
‘old wooden chair. He looked down
-at prison workers as they buckled
‘straps around his chest, arms,
“hands and legs, occasionally look-
‘ing up at Jerome Nickerson, one
of his lawyers. Nickerson was
seated behind a glass panel in the
witness room directly in front of
Bertolotti.

When prison Superintendent
Tom Barton put a microphone in
front of Bertolotti and asked him
if he had any last words, the pris-
oner answered:

“Yes. I would like to say I leave
with love in my heart, no animos-
ity. To those who I love, be strong,
and know that God is with them.”

Prison officials then put a hood
over Bertolotti’s face and an elec-
trode over his shaved head. A nod
from Barton started the current
flowing. Bertolotti, strapped tight-
ly into the chair, barely moved. A
puff of smoke came from his right
leg, where electricity exited
through another electrode.

According to testimony at Berto-
lotti’s 1984 trial, which included
two taped confessions, he said he
was walking through Ward’s
northwest Orlando neighborhood
when he saw her unloading gro-

ceries from her car. He asked to’

make a telephone call.

Once inside the house, Berto-
lotti picked up a knife and de-
manded money. Ward, 46, got her
purse and gave him $31, according
to one of the confessions. Ward
then pleaded for her life, at one
point putting her arms around
Bertolotti and asking him to pray
with her.

When the woman tried to run
away, Bertolotti started stabbing
her. The knife broke in the wom-
an’s chest, and the killer got an-
other one. Evidence at the trial in-
dicated Ward was stabbed 14 to 20
times and also raped. William
Ward, her husband, found her
dead a short time later.

Bertolotti was arrested eight
days later after his girlfriend

e., tipped off police.

bh

! would like to say, I
leave with love in my
heart, ro animosity. To
those who ! love, be
strong, and know that
God is with them.

Anthony Bertoiotti
Rie aia! Se may

The jury voted 9-3 te recom-
mend the death penalty. Orange
Circuit Judge James Stroker
agreed, saving he feared the facts
of the killing would blur during
appeals.

“But you won't forget what you
did to Carol Ward,” Stroker told
Bertolotti «t sentencing. “And the
jury won't forget. And I won't for-
get.”

Bertolot*i’s lawyers sought to
have the e.:zcution delayed on the
grounds that a head electrode in
the chair wus broken.

At Florida’s last execution, on
May 4, flares shot from the head
of Jesse Tzfero, and the current
was reduce to 200 volts. Defense
lawyers claimed he was burned
alive.

State officials said a faulty, new
synthetic sponge caused the prob-
lem and replaced it. But lawyers
blocked subsequent executions of

‘five other killers by claiming that

the head electrode was broken.

Last month the 11th Circuit
court said it probably would block
any executicns in Florida until it
was Satisfied that the chair
worked prop2rly.

That prompted Gov. Bob Marti-
nez to order the chair tested Mon-
day. An Auburn University electri-
cal engineering professor and doc-
tor, Michael Morse, declared the
chair in perfect shape after using

a collander to test it.

Execution of Bertolotti was first
scheduled for Tuesday, but two
stays delayed it until Friday.

A three-judge panel of the iith
Circuit court Friday upheld US.
District Judge G. Kendail Shary’s
ruling this week in OvisnZo thei
the chair’s 2,000 voits “cre suffi-
cient to cause painless termina-
tion of Life.” ;

From 11 a.m. to 4 p.m. Yriday,
Bertolotti visited with his girt-
friend LuAnn E. Begey o: coce,
Macaster said. Beyey’s paresis
last month. encovaced her en-
gagement to Bercolottl. They had
planned an Aug. Z weddiig. Bo-
gey le® the prison and could nat
be reached for cozament. :

Adout 8G cos. CS Oe
half ofchis Inst ment of fried
Shrimp, macetoni inc. *ivese,
with dinrer coll: and iced ica. He
then began piepurations for the

riod

electric chai. .

Bertolotti :va3 th: tard séison
elecirocuted since the stata re-
sumed executions in 7978. Oniy-
John Spenkelini, the first of
those executed, spent a shorter
time on death row before being
executed. The clectrocution was

. witnessed by about 35 people, in-

cluding prison and other state of-
ficials and reporters. None of Ber-
tolotti’s family was present. Eight
people gathered across the street
from the prison, none opposed to
the death penalty.

Martinez, who had been cam-
paigning in Tampa, returned to
Tallahassee after the llth Circuit .
rejected Bertolotti’s appeal. He
was on the phone with prison offi-
cials when the execution came.
Afterward, he issued a statement:

“IT am gratified that the courts
concluded that Florida’s electric
chair does in fact work as it was
supposed to. As a result of today’s
court ruling, Florida should now
be able to resume carrying out its
capital punishment statute.”

—hh

But you won't forget what you did to Carol Ward.

And the jury won't forget. And | won't forget.

Circult Judge James Stroker
at Bertolott’s sentencing

o6e.N

Chala works.

CSRs

Riartieae
ACSS

oy IMishae
Of THE SENTINEL Stat
ee eel
fmnony Sertolotti’s execttion
ney ester tic demise of « hherg
* ty ° rs. ‘3
-% Geeth row bi Florida) bes

the
F jezs won't be <-and-
ing iy Line fp- the electric ehe'r. :
she Gebor.{2 system of ap eals’
ck but guacdntees more delz: 3 for
f.soners like Judi Buenoant:, say
jawyers working on death sen-
tence cases. - :

‘the federai sppeals court said.
this month f, probably woulc. stay
ali executions ia Florida: ur i it
was decided whether the electric
Cityir worked properiy, - ~
* But on Friday it cleared the way
for execution of Bertolotti after
U.S. District Judge G. Ker:dall
Sharp held a hearing in Orl:ndo
on Wednesday and decided the '
electric chair worked properly.

That question was in doubt tfter
flames and sraoke came from a
headpiece worn by convicted r.ur-
derer Jesse Tafero during his elec-.
trocution May 4.

' Six convicted killers, including
Buenoano and Bertolotti, haa ap-
pealed their death sentences be-
cause they claimed the electric
chair did not ‘work properly and-
was cruel and unusual punish-
ment. .

However, Richard Doran, cr.mi-
nal division director of the state
attorney general’s office, said
Buenoano probably will-not be ex-
ecuted any time soon,

Buenoano’s appeal includes 23
separate issues, including the
question of the electric chair,

The so-called “Black Widow" ..
was sentenced for poisoning her
husband, drowning her son and
trying to kill her boyfriend. © -

A stay of the execution of Buen-
oano was lifted Jast month by U.S.
District Judge Patricia Fawset; in
Orlando, only to be reimposec! by

£$F use when all else fails

peals in Atlanta.

ot express regret? :

ST Sh eee SA 9 ade SF 4
“. ’ > Eo rs i Hari te
“et We GE Sein te. b
FS i crcewes “=r
‘ een een 2 ae
arm sets
re Sera ee Sawn ae
. Vy en ogre oe :
s Apis ito aod = Fes
"ASS: . Te wae OF —— rs oe t
8 LokSy we : ¢
t “af me Scent we oan 1
YS oF
Ne Cae nknn te mee eae
Recast nee Lane = og +
= :
ee 8 aw, “ '

ribs os gest: re
PRoride’s electric chair. may appeer to: get most attiintion, but other ee
neice Sy paper ee ee

Cito Ap "Cait Cola Regence

Doran’ said oral arguments on mates. -. batt: foe

Buenoano’s appeal have not been
scheduled and probably will not late court justices make execution
be heard until late this year or ear- decisions, and those judges. con-
ly next year. 0 |, : tinually change; :each ‘case could
When they are, the state will ar- . have'a different outcome, he said:
gue that the courts should not ‘And just because one
ole: ets

consider the question of how the Properly, ‘there
chair operates since that matter . antee others will,’
was settled in the Bertolotti case, $0 appealing ‘the
esi: ets. tier ee vhite,
If the state wins that for the 198] killing a
defense lawyers would have one s0n in a grocery
less method of delaying execution. ange County;

of their’ clients, Those lawyers, the 1980 shooting
however, are not willing to con- : tion attendant:
cede the point. es County; James

“We will take the same position 1984 shooting

the chair remains broken,” said”
Layry Spalding, a lawyer with the


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Florida's Best Newspaper ‘. 4 #

ar eee: Listen fy

ih é “f B+} wa,
wy Mane

Few ig

Ye chance of 1

1 ne

8 raid 2B Gentes Fh, Saturday, July 28, 1990 -

fos ee fe

head was smeared wita a white creme not usually execution, made a brief statement, nodded at his

seen for executions, and the time of death was given attorney Jay Nickerson, then kept his eyes closed

as 7:07 p.m. EDT, when the final of three jolts of tightly as the black nood was laced over his head, .

electricity ended two minutes after the first began. Be jecked back in the char, clenched his fists,

In the past, the-time of death wasn’t stated until then slumped after each of the three surges. There

after a doctor had examined the executed inmate, Were white wisps of smoke, as is ‘usual for ‘the ;
my

Se | exec tice other Florida inmates had gained stays of - €lectrocutions, but no signs of any problems,"
SAABRE =~ Anthony Bertolotti died Friday in ion i | ke to say i | peace and love in.
Hairepexccution since allegations that Florida’s Jessie Tafero, which spurred charges that the elec- heart, BO anithosity, ‘Rettolott. said after be waa put |
"¢. Chair was malfunctioning. _ tric chair was a torture device that inflicted uncon- nto the chair. “And sag jdove, be strong acd tS
rey rOuOtt, 38, was put to death for fatally stab- stitutionally cruel and unusual punishment. Fire, _ know that God is with them.” |° 0” ore =
ng: 7 ‘48-year-old, Orange County woman he had smoke and Sparks
Faped ang yobbed of $30.5 state’s black-hooded executioner applied three
Jah: €X€cution, Florida's 23rd since ‘the state surges of power before Taf
a De Sina pe punishment in 1979, for the most Bertolotti, whose final

; appeal was rejected by
Foutine However, Bertolotti’s shaved the U.S. Supreme Court about a half-hour before his __

Execution:

evvwer.
er hr er)

the chair’s 2,000 volts ‘‘are suffi-
cient to cause painless termination
of life.”
The Atlanta court has delayed:
executions for three other Florida:
__ inmates because of claims that the.
chair was burning victims alive.
” “They are being very careful
a that procedures are being followed.
. to the letter; said Bob Macmas-
, > tex,: spokeaman.for-state- Depart»:
; ment of. Corrections. “We have
’ proven to the courts that the:
" sponge was at fault and the electric. ..
chair is ir working order.”

yrurtwre yw eve ©

66% ¢ ae : | Jud C; ek: :
It is gratifying that the courts. Sharp held a proper hearing On thal; ‘

concluded Florida’s electric. chair: :
- does in fact work as it is designed i.
- to. That fact was borne out by «
extensive testing earlier this: —
_ week, and the completion of a
’ ; execution proves it conclusively,” an
Gov. Bob Martinez said in Talla: Y
hassee.
: “Almost seven years Hise ;
’ passed since Anthony Bertofotti -

sent him to the electric c
. seven years since he senselé

from 1A°°

q torture device: 7

dinner: rolls: with butter: ame iced.

tea..
Prison: officials me an ‘expert: ‘

from Auburn University who con-

_ ducted a public test. ofthe chair:
Monday conchided it was working:

perfectly, They: claim a: synthetic...
_ Sponge,.used for the, first and-only .
‘time? in: the: Tafero execution,
caused Samay tone ak Sn his
“heads :

“electricchair; including ex ‘ ape a
timony. on its workings: ... ew
- “Tt ig-unlikely that. these cirey m-3'. «
stascone Jessie Tafero. will: ape
again,” Sharp ruled-:.,

- “We fully support that ful’ <

the+lith Circuit,judges'saidi:. or
+ Bertolotti was: sentencedtb dhe
for’ the Sept.’ 27): 1983}. thurder
~ Carol .Ward. She ‘was working in*

her, vardt in Orange County when:

4 iy

a fix t “hh , tr P

~ destroyed the lives of Carol Watd -
and her family,” the governor‘ sagt io

committed the horrible crime.that:

| ' “Today’s events have begun to.
| . restore certainty to Florida's ute
| _ mate penalty, and I commend the [
| _ courts for moving towera that’)
“eventual end.” ts

A dozen death penalty support- |.
ers were in a pasture across.from..
the Florida State Prison:neag here |
while a lone man and a. woman °
apparently opposed to capital.pun-* |

- ishment. stood in an adjacent: field - |:
during.the évening execution;:;,. a

Bertolotti was the 220th‘‘in- ° *
mate to be put to death in Florida [::

since’ the electric chair was first 4a

used i in 1924., ,
', Larry Spalding, head of. ther cs

- state-funded. office represeniting:.
: Bértolotti, said- the appeal to. the’
. U.S. Supreme Court pursued’ the-.

. Claim that Tafero’s death showed’

- the: chair is capable: of exacting.’
~ cruel and. unusual punishment in.‘}*
v violation of the ‘U.S. Constitution.” :
But: the Reece ene e appeal, if:
- BeuT be: mates ‘prger chia thing.
wnt as pe Gah Rl A Ee

Ke = eas “a —

~

sks

: TheMay 4 execution of Jessie Tafero:
- spurred charges that the electric chair was &

Bertolotti approached:and asked ta. |’ '
* - use the telephone, and she let him

in..
He | grabbed-a knife and robbed

; her of Séhiral then became airy
and: stabbed her’ repeatedly ‘until

the -knife broke. He’ then: und.
another knife and.

removed her irigegel and bess

brolottyerota several Setar’:
6 yosecutors after his votiviction,
pre, he areneey ga’t Bory."
“havwentg pegrets or” Soto
he mauler eee ‘Ward,’ a6

hes
Rae taking he = don’t yout think
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BERTOLLOTI, Anthony, black,

elec. “la, SP 7-27-1990,,,

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ER CHILLER!

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#3

WLLIAM I. WARD, a junior
‘nigh school teacher in the
small Florida town of Rose-
mont, about six miles north of Orlando,
was happily out of bed at 5:00 a.m. on
Tuesday, September 27, 1983, and

ready for breakfast.,He did not usually:

take on a big breakfast—-he was more
interested in reading The Orlando Sen-
tinel and talking with his wife, Carol
Miller Ward.

The couple talked pleasantly, discuss-
ing some of the local events that were
reported in the newspaper. They also
discussed personal ‘matters, and Bill
Ward was pleased to mention the way

34 Master Detective

\

Pf

by SAM ROEN
be ,

things were going with the new term

‘at the junior high school. School had

been in session only a couple of weeks
but all.was going well and the indications
for Ward were that it was going to be a
good year. | oe

It wasn’t. In less than five hours his
whole world was to be abruptly
shattered—devastated.

At about 9:30 a.m. that same day, a
man entered the Ward home where Carol

HESTABBEDHER

Ba ie aa

SA RNS OORT RD OLE LL LIE IO OL T

was alone, and before’he departed hehad . |

murdered this quiet, pretty, unassuming

woman in one of the most brutal, hideous.

killings ever committed in Orlando or
Orange County, Florida. . ;
The 46-year-old Carol was stabbed
more than 30 times by the assailant, who
used two different knives taken from the
kitchen of the victim. She was also
severly battered and beaten on the head
as well as strangled. :
Meanwhile, Bill Ward went through a
busy day at the junior high school totally
unaware of what had happened at his
home. After he left his house at-approx-
imately 7:30 a.m., he arrived at the

MASTER DETECTIVE MAGAZINE, NOVEMBER, 198)


Fla.) ‘ BLACKWELL vy. STATE 233

(86

mony, as to the particular matter about which
he testifies.’

"In some cases, recited by the Supreme Court
in the Mattox ‘Case, where witnesses who had
testified on a former trial were not dead, but
were out of the state, and for similar reasons
the testimony has been excluded; but said the
Supreme Court:

“Upon the other hand, the authority in fa-
yor of the admissibility of such testimony,
where the defendant was present either at the
examination of the deceased witness before a
committing magistrate, or upon a former trial
of the same case, is overwhelming.’

“There are, of course, grave reasons wher-
éver it is possible that the witness who testi-
fies against the accused should be present.
These are recapitulated by the Supreme Court
in the case just cited. But said that great
tribunal:

“But general rules of law of this kind, how-
ever beneficent in their operation and valuable
to the accused, must occasionally give way to
considerations. of public policy and the neces-
sities of the case. To say that a criminal,
after having once been convicted by the tes-
timony of a certain witness, should go scot
free simply because death has closed the mouth
of that witness, would be carrying this consti-
tutional protection to an unwarrantable extent.
The law in its wisdom declares that the rights
of the public shall not be wholly sacrificed in
order that an incidental benefit may be pre-
served to the accused.’

“And in the same case it is further declared
that:

“(The substance of the constitutional protec-
tion is preserved to the prisoner in the ad-
vantage he has once had of seeing the witness
face to face, and of subjecting him to the or-
deal of a ¢ross-examination.’

“It adds that:

“‘All the authorities hold -that a copy of
the stenographic report of his entire former
testimony, supported by the oath of the ste-
nographer that it is a correct transcript of his
notes and of the testimony of the deceased
witness, such as was produced in this case, is
competent evidence of what he said.’

“See, also, U. S. v. Macomb, Fed. Cas. No.
15,702; Rice on Evidence, p. 345 et seq.;
Starkie on Evidence, 409; Greenleaf on Evi-
dence, 163; Roscoe’s Criminal Evidence, p. 66;
Reynolds vy. U. S., 98 U. S. 145, 25 L. Ed.
244,

“There is a learned discussion of the entire
topic in Wigmore on Bvidence, vol. 2, § 3908
et seq, and many authorities cited, leading
the learned writer to the conclusion, us stated
in section 1397, that such an argument as that
presented by the counsel for the defendants is
wholly unfounded. The contention is utterly
inconsistent with the exigencies of society, and
reduced to its last analysis, might even exclude
on the trial the dying declarations of the in-
hocent victim of unprovoked and secret murder
or unnamable outrage.”

‘For an interesting discussion of the sub-
ject see State. v. McO’Blenis, 24 Mo. 402,
69.Am, Dec. 435. See, also, 8 R. C. L. D.

88; Spencer y. State, 182 Wis. 509,112 N. W.
462,122 Am, St. Rep. 989,:13Ann. Cas. 969;

So.)

State v. Heffernan, 22 S. D. 518, 118 N. W.
1027, 25 L. R. A. (N. 8S.) 868, 873; People
v. Droste, 160 Mich. 66, 125 N. W. 87; 16
Cyc. 1101; State v. Nelson, 68 Kan, 566, 75
Pac. 505, 1 Ann. Cas. 468, notes.

The constitutionality of section 1, chapter
5897, Acts. of 1909 (section 1523, Compiled
Laws 1914), is not argued by counsel for
plaintiff in error, and its validity was ex-
pressly recognized in Johnson v. State, 68
Fla. 528, 67 South. 100; Coley v. State, 67
Fla. 178, 64 South. 751.. The statute is as
follows:

“In case any judgment at law rendered by
any court of the state of Florida shall be re-
versed and a new trial awarded, and it be
made to appear to the satisfaction of the
court that any evidence used at the former
trial, whether oral or written, and incorporat-
ed in the bill of exceptions, cannot be had,
then the bill of exceptions taken at the previ-
ous trial may be used as evidence upon any
subsequent trial of the case, as to any matter
in issue at the former trial: Provided, that
no evidence given upon a former trial of any
case pending in any of the courts of the state
of Florida shall be used in evidence upon the
trial of any cause in any of the courts in the
state of Florida, except as herein provided.”

The Constitution, in section 11 of the Dec-
laration of Rights, provides that—

“In all criminal prosecutions the accused
shall have the right * * * to meet the wit-
nesses against him face to face.”

“The object of this provision manifestly is
to exclude testimony. by depositions, by re-
quiring it to be given orally, in the presence
of the accused, on the trial. The admission
of testimony by depositions against the ac-
cused in a criminal cause would often afford
the prosecutor great advantages over him, as
well as furnish, at times,, opportunities for
abuses beyond the reach of detection by the
defendant. Deprived of this right, the accused
would often be without the opportunity of
cross-examination, without the means of seeing,
hearing, or knowing the persons who testify
against him, and without the advantage of an
oral examination of the witnesses before the
jury which is to decide upon his case. But
important as this right is, as established at
common law and secured by the Constitution,
it has application to the matter of the personal
presence of the witness on the trial, and not
to the subject-matter or competency of the
testimony to be giveg. The requirement that
the accused shall be confronted, on his trial,
by the witnesses against him, has sole refer-
ence to the personal presence of the witnesses,
and it in no wise affects the question of the
competency of the testimony to which he may
depose. When the accused has been allowed
to confront, or meet face to face, all the wit-
nesses, called to testify against him on the
trial, the constitutional requirement has been
complied with.” Summons v. State, 5 Onio St.
325, text 340.

Where a defendant has been confronted

with the witnesses against him in a former


230 86 SOUTHERN REPORTER (Fla,

lows that, if the accused has had the benefit
of cross-examination, he has had the very priv-
ilege secured to him by the Constitution.”

“Yn dealing with depositions and former tes-
timony, our courts have almost unanimously
received them in criminal prosecutions, as not
being obnoxious to the constitutional provision.
The leading opinions were rendered chiefly be-
tween 1840 and 1860. Up to 1886, apparently
the only contrary precedent not overruled was
an early Virginia case, afterwards often cited,
which professed to decide the question merely
on English precedents, and not on constitutional
grounds, and proceeded on the authority of an
earlier English treatise, which in turn went up-
on the authority of Fenwick’s Trial, a parlia-
mentary decision precisely to the opposite ef-
fect, and misunderstood by the writer of the
treatise. This early Virginia ruling, of so lit-
tle weight in itself, served, however, to keep
a doubt alive, and in the last generation a few
ill-considered rulings in other jurisdictions have
followed it. Apart from these rulings, it is well
and properly settled that such evidence—assum-
ing always that there has been a due cross-ex-
amination—is admissible for the state in a crim-
inal prosecution, without infringing the consti-
tution.”

“The question, then, whether there is a right
to be confronted with opposing witnesses, is eS-
sentially a question whether there is a right
of cross-examination. If there has been a cross-
examination, there has been a confrontation.
The satisfaction of the right of cross-examina-
tion (under the rules examined ante, §§ 1371-
1393) disposes of any objections based on the
so-called right of confrontation,

“Nevertheless, the secondary advantage, inci-
dentally obtained for the tribunal by the wit-
ness’ presence before it, the demeanor evidence,
is an advantage to be insisted upon wherever
it can be had. No one has doubted that it is
highly desirable, if only it is available. But it
is merely desirable. Where it cannot be obtain-
ed, it need not be required. It is no essential
part of the notion of confrontation; it stands
on no better footing than other evidence to
which special value is attached; and just as
the original of a document (ante, § 1192), or a
preferred witness (ante, § 1308), may be dis-
pensed with in case of unavailability, so demean-
or evidence may be dispensed with in a similar
necessity.”

Sections 1897, 1398, 1396, vol. 2, Wigmore on
Evidence.

“It has long been a settled rule of evidence,
as one of the exceptions to the general rule ex-
eluding hearsay, that the testimony of a: wit-
ness given in a former action, or at a former
stage of the same action, is competent in a sub-
sequent action, or in a subsequent proceeding of
the same action, where it is shown that such
witness is dead, has become insane or disqual-
ified, is beyond the jurisdiction of the court

(that is, out of the state), cannot conveniently
be found, or has been kept away by the opposite
party, where it is also shown that the former
giving of such testimony was under oath, and
that opposing party cross-examined, or was af-
forded an opportunity to cross-examine, such
witness. This rule has been generally applied in
eriminal causes, and has been held not to be in
conflict with article 6 of the United States con-

criminal prosecutions the accused shall enjoy
the right to be confronted with the witnesses
against him,’ nor in conflict with the state Con-
stitution, such as ours (article 6, § 7), which pro-
vides that ‘in all criminal prosecutions the ac-
cused shall have the right to meet the witnesses
against him face to face’; it being held that,
where the defendant has once, at some proper
stage of the proceeding, been confronted with
and met such witness face to face, has cross-
examined him, or been given the privilege to
do so, the provisions of these Constitutions have
been satisfied, and that such evidence is not ob-
jectionable on that account. Elliott, Ev. § 503;
Jones, Ev. § 339; Wigmore, Ev. §§ 1365-1395;
12 Cyc. Law & Proc. p. 548; 16 Cyc. Law &
Proc. p. 1091; Mattox v. United States, 156 U.
S. 237, 39 L. Hd. 409, 15 Sup. Ct. Rep. 337;
Bishop, Crim. Proc. 1194; State v. Manion, 19
Utah, 505, 45 L. R. A. 638, 75 Am. St. Rep.
758, 57 Pac. 542.” State v. Heffernan, 22 S. D.
513, 118 N. W. 1027, 25 L. R. A. (N. 8S.) 868.

The case note in the above case is as fol-
lows:

“The objection generally raised to the admis-
sion at a trial of testimony given at the pre-
liminary examination, by a witness who cannot
be produced at the trial, is that the accused per-
son would thereby be denied the right guaran-
teed by the Constitution of the United States,
and by the constitutional or statutory provi-
sions in most of the statutes, of being confronted
with the witnesses against him, which includes
the right of cross-examination; it being con-
tended that this right is denied unless the ac-
cused is actually confronted with the witnesses
against him at the trial which is to determine his
guilt or innocence. On the other hand, it is con-
tended that the accused person is afforded this
right, if he has had the opportunity to confront
the witnesses against him and subject them to
cross-examination in the proceeding in which
the testimony was taken, provided he was pres-
ent as the party charged with the offense which
was being investigated, and the offense there
charged and the one being tried are substantially
the same.

“This latter view is taken by an overwhelm-
ing majority of the courts, but the real basis
for the admission of such testimony seems to
be the necessity for its admission to prevent the
miscarriage of justice, and the instances in
which it is admitted are in reality exceptions to
(sometimes recognized as such by the court),
rather than in compliance with, the rule that
the accused is entitled to be confronted with the
witness against him.

“Ag to the effect of the admission of such tes-
timony upon the rights guaranteed to an accused
person by the federal Constitution, it was held
in West v. Louisiana, 194 U. S. 258, 48 L. Ed.
965, 24 Sup. Ct. Rep. 650, affirming 109 La.
603, 33 South. 618, that the constitutional pro-
vision giving the accused the right ‘to be con-
fronted with the witnesses against him’ does not
apply in prosecutions in state courts, and that
the reading, according to the state statute, of
depositions taken at the examination of a wit-
ness who has permanently remgved from ‘the
state, does not deprive the accused of liberty
without due process of law, or violate any. provi-

stitutional amendments, providing that ‘in all

sion of the federal Constitution.”. ;

ar

tyne rte teragamanc


this state is as follows:

~ "Tn all criminal prosecutions the accused shall

- have the right to a speedy and public trial, by
an impartial jury, in the county where the crime
was committed, and shall be heard by himself,
or counsel, or both, to demand the nature and

cause of the accusation against him, to meet
the witnesses against him face to face, and
have compulsory process for the attendance of

_ witnesses in his favor, and shall be furnished

with a copy of the indictment against him.”

Section 11 of the Declaration of Rights

- Was not intended by the framers of the Con-

stitution either to enlarge or abridge the
privileges of rights. of persons, accused of
crime, but to prevent the impairment of such
rights or privileges by legislation as existed
at common law. '

“An important canon of construction is that
Constitutions must be construed with reference
to common law, and although there is no com-
mon law of the United States in the sense of
4 national customary law, as_ distinguished
from the common law of England, adopted by
the several states, in interpreting the federal
Constitution recourse may still be had to the

aid of the common law of Pngland. It has

been said that without reference to this com-

‘mon law the language of the federal Constitu-

tion could not be understood. This is due
to the fact that this instrument and the plan
of government of the United States were
founded on the common law as established in
England at the time of the Revolution. Phras-
es in the Bill of Rights taken from the common
law therefore must be construed in reference
to the latter.” 6 R. O. L. 53.

Having this rule of construction before
us, we must determine what the common
law was upon this subject of the right of

‘the accused to meet the witnesses against
him “face to face.”

_ “Our common law on the subject comes from

two ancient English statutes, which were ac-
cepted as of common-law force in Pennsyl-
yania, in Maryland, and probably in the other
states generally. They are 1 & 2 Phil. & M.
c. 18, §§ 4, 5, and 2 & 3 Phil. & M.c. 10. By

them, justices of the peace, committing or bail-

ing one on a charge of felony, were to ‘take
the examination of the said prisoner, and in-
formation of them that bring him, of the
fact and circumstances thereof,’ and reduce
to writing ‘the same or as much thereof as
shall be material thereof to prove the felony,’
and certify it to the court before which the
further proceedings were to occur.” 1 Bishop’s
New Crim. Proc. § 1198, p. 733.

“Again, the same author sums up the com-
mon law:

“Dpitomized is the common-law doctrine as
to depositions before committing magistrates,
taken under statutes like the former Hnglish
ones, in the later 11 & 12 Vict. ce. 42,.§ 17,

Fla.) BLACKWELL vy. STATE 931
; (86 So.)

Section 11 of the Declaration of Rights of

thus: ‘If, upon the trial, it appears ‘that any
person whose deposition shall have been taken
as aforesaid is dead, or is so ill as not to be
able to travel, and if also it be proved that
such deposition was taken in the presence of
the person so accused, and that he or his coun-
sel or attorney had a full opportunity of cross-
examining the witness, then, if such deposition
purport to be signed by the justice by or be-
fore whom the same purports to have been
taken, it shall be lawful to read such deposi-
tion as evidence in such prosecutions, without
further proof thereof, unless it shall be proved
that such deposition was not in fact signed
by the justice purporting to sign the same.’ ”
Section 1201.

“Sec, 1204. Constitutional—Face to Face.’—
The law, as expounded in the foregoing sec-
tions, is not in conflict with the constitutional
guaranty, to an indicted person, of the right
‘to meet the witness against him face to face.’
At his already explained opportunity to cross-
examine them, he does or may thus meet
them.”

It may be inquired: “Did the Legislature
have the power by statute to prescribe that
the testimony as set out in the bill of excep-
tions should be the exclusive manner of prov-
ing the evidence of a witness given at a for-
mer trial, who is dead, insane, or unable to
be had? We answer this in the affirmative.
There being no constitutional prohibition, as
we hold, to the introduction of such testi-
mony upon the ground that the witness did
not meet the accused face to face, it is clearly
within the power of the Legislature to pro-
vide the only manner or mode in which the
testimony of such absent witness could be
shown.

In the case of Sanford v. State, 143 Ala.
78, 39 South. 370, the court held that, where
the testimony had been taken down in writ-
ing of a witness at a preliminary trial, it
was error to allow the justice who had taken
such testimony to testify as to what the wit-
ness had said, and the law requiring the tes-
timony of witnesses on a preliminary trial
to be taken by a justice of the peace, that
the writing was the best evidence, and in the
headnote to the above cited case stated the
law to be:

“Where a magistrate, on the preliminary trial
of a defendant charged with a felony, takes
down in writing the testimony given therein
by a witness, he cannot, on the trial by jury,
testify as to what such witness said on ex-
amination in the preliminary trial, as the writ-
ten notes of his testimony is the best evidence
thereof.”

We cite from the case of Jackson Vv. State,
81 Wis. 127, text 132, 51 N. W. 89, 91, as
follows:

“In speaking of criminal cases, Mr. Cooley
says:: ‘If the witness was sworn before the
examining magistrate, or before a coroner, and

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232 86 SOUTHERN REPORTER (Ma.

the accused had an opportunity then to cross-
examine him, or if there were a former trial
on which he was sworn, it seems allowable to
make use of his deposition, or of the minutes
of his examination, if the witness has since
deceased, or is insane, or sick and unable to
testify, or has been summoned but appears
to have been kept away by the opposite party.’
Cooley, Const, Lim. (6th Ed.) 387, citing nu-
‘merous cases. The Attorney General cites nu-
merous cases under similar constitutional pro-
visions to the same effect. -

“Of course, to be admissible, such former
testimony should be established or identified
with reasonable certainty. Here the stenog-
rapher testified, in effect, that while he did
not recollect the fact, yet that he thinks he
took down all the questions put to the wit-
ness, and his answers, and that he believed
they were substantially correct. Counsel con-
tend that this was not sufficient to authorize
such admission, within the rule of Zitske v.
Goldberg, 38 Wis. 216, and Elberfeldt v. Waite,
79 Wis, 284. In neither of those cases had
such testimony been taken down by the offi-
cial court reporter. In each it was taken
down by a justice of the peace. In the for-
mer it was said by the present Chief Justice
that ‘the minutes of testimony taken by a jus-
tice of the peace on a trial before him are
subjected to no such scrutiny (as in a bill
of exceptions), and possess none of these im-
portant and essential elements of verity. On
the contrary, they are made in the haste and
confusion of trials, generally by men who are
quite unused to the business, and no power to
make corrections after the trial is vested in
any one. Hence the reasons for admitting
such testimony, when it is found in a settled
ease or bill of exceptions, entirely fail when
the offered testimony is contained in the jus-
tice’s minutes.”

It is an elementary rule of evidence that
the best evidence that the nature of the case
permits should be resorted to, to prove @
fact, and how any higher or better evidence
of what a deceased or absent witness swore
at a former trial can be produced than that
contained in the bill of exceptions prepared
by the defendant or his counsel, and receiv-
ing the sanction and approval of the trial
judge as being correct, we cannot imagine.

We know of no better way of expressing
our conclusion on the admissibility of such
testimony in the manner prescribed by the
statute than by quoting from the opinion in
the case of United States v. Greene et al.
(D. C.) 146 Fed. 787, text pages 799, 800 and
801, as follows:

“Tt is, however, urged that it is not com-
petent in any criminal case to admit the tes-
timony of a witness given on a previous trial
unless the’ witness himself can be brought be-
fore the court. As tersely stated by the as-
sistant district attorney, Mr. Akerman:

“The contention of the learned counsel
would perhaps be better founded if the Su-
preme Court of the United States had not. de-
cided the precise question against him.’

“This decision is found in the Mattox Case,
146 U. S. 140, 13 Sup. Ct. 50, 36. L. Ed. 917.
There two witnesses on a former trial, Thom-
as Whitman and George Thornton, had since
died. A transcribed copy. of the reporter’s
stenographic notes was admitted by the court
and constituted the strongest proof against
the accused. The accused were charged with
the capital crime of murder. There it was

insisted, as here, that the constitutional pro- °

vision, that the accused shall be confronted
with the witnesses against him, was infringed
by permitting the testimony of witnesses sworn
upon the former trial to be read. Said the
Supreme Court, Mr. Justice Brown rendering
the opinion:

“<The idea that this cannot be done seems to
have arisen from a misinterpretation of a rul-
ing in the case of Sir John Fenwick.’

“This case was a parliamentary proceeding
by bill of attainder. It was the last trial by
bill of attainder among the Wnglish-speaking
people. The charge was high treason. We
gather from the luminous and brilliant pages
of Macaulay’s History of England that, though
convicted, the prisoner would have been par-
doned by William ILI, had his offense merely
comprised a plot for the assassination of that
monarch; but the king could not forgive a
gross and public insult which Fenwick had
offered the queen, the beloved and amiable
Mary. ‘There, however, the witness had not
died. The wife of the accused had spirited
him away, and, notwithstanding the bitterness
of the Parliament, with that high regard for
law which has characterized the English-speak-
ing race, the testimony was excluded. But in
that case there had been no opportunity for
cross-examination on a former trial between
the same parties. Nevertheless, the case mis-
led a writer on evidence to state that it was
authority for the proposition that the testimony
of a deceased witness cannot be used in a
criminal prosecution, and it possibly had the
same effect upon the learned counsel for the
defendants in this case.

“The Supreme Court, however, had declared
the rule in England to be clearly the other
way, citing a number of notable precedents and
an imminent text author. 2 Starkie on Evi-
dence, p. 208. And, said the learned justice
delivering the opinion as to the practice in
this country: ‘We know of none of the states
in which such testimony is now held to be
inadmissible.’ Certainly this is true in our own
state. In that Code of our state which was
made copious drafts, not only upon the Eng-
lish, but the Roman, law, whose first and per-
haps most illustrious codifier, that noble Geor-
gian, T. R. R. Cobb, has left the people whom
he loved a juridical monument in its inestima-
ble pages not less valuable to them than the
Code Napoléon to the people of France, we
find in section 1001 the provision following,
which should satisfy the jurists and the people
of this state:

“<The testimony of a witness, since deceased,
or disqualified, or inaccessible for any cause,
given under oath on a former trial, upon sub-
stantially the same issue and between sub-
stantially the same parties, may be proved by
any one who heard it and who professes . to

:

remember the substance of the entire testi-


1556

Bolender’s guilt phase claims. Accordingly,
we begin our discussion with his more signifi-
cant allegations, all of which concern the
penalty phase of his capital trial. In part II,
we address Bolender’s claims of ineffective
assistance of counsel at sentencing. In part
III, we examine the related contentions that
Bolender’s attorney felt constrained in devel-
oping and presenting nonstatutory mitigating
evidence at the penalty phase, and that the
sentencing judge (and, on appeal, the Su-
preme Court of Florida) failed meaningfully
to consider nonstatutory mitigation. Part IV
concerns the alleged constitutional deficien-
cies in the Florida Supreme Court’s review of
this case. Then, in parts V and VI, we
consider two alleged errors at the guilt phase
of Bolender’s trial: a denial of his right to
compulsory process and an improper jury
instruction.

II.

[4-7] Bolender contends on appeal that
he was denied reasonably effective assistance
of counsel during the penalty phase of his
trial because his lawyer did not present evi-
dence of his troubled background as a ngn-
Statutory mitigating circumstance.!" Florida
law provides for separate guilt and penalty
Stages in capital cases. After a defendant is
convicted of a capital offense, the jury hears

10. Bolender devotes a significant portion of his
appellate brief to a discussion of the nonstatutory
mitigating evidence that his counsel could have
presented at the penalty phase. The proffered
evidence included testimony from Bolender’s
family concerning his troubled background and
drug abuse, evidence of assistance rendered to
law enforcement officials and of good behavior
while incarcerated, and testimony concerning al-
leged psychological difficulties resulting from a
gunshot wound to the head several years before
the 1980 offenses and severe drug abuse.

We need only consider the evidence of Bolen-
der’s family background that was presented at
the state court evidentiary hearing on Bolender’s
first motion for postconviction relief. The other
claims of ineffective assistance, flowing from
counsel's failure to introduce the additional miti-
gating evidence at the penalty phase, were pre-
sented for the first time in the second motion for
postconviction relief and were held to be proce-
durally barred by the Florida Supreme Court.
Bolender IIT, 564 So.2d at 1058 n. 1.

A state court’s rejection of a federal constitu-
tional claim on procedural grounds will bar con-
sideration of that claim by a federal habeas court

16 FEDERAL REPORTER, 3d SERIES

additional evidence and recommends to the
trial court a sentence of life imprisonment or,
if it finds that sufficient aggravating circum-
stances (as enumerated in the death penalty
Statute) exist to outweigh the mitigating fac-
tors proved, death. Neither jury recommen-
dation is binding upon the trial court, which
conducts its own sentencing hearing and ulti-
mately fixes the sentence after weighing the
aggravating and mitigating circumstances.
See FlaStat.Ann. § 921.141(1)-(3) (West
1985); Cooper v. Wainwright, 807 F.2d 881,
883 n. 2 (11th Cir.1986) (describing proce-
dure for imposing death penalty in Florida),
cert. denied, 481 U.S. 1050, 107 S.Ct. 2188, 95
L.Ed.2d 839 (1987).

{8] The familiar standard enunciated in
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs
claims that a defendant has been denied the
effective assistance of counsel guaranteed by
the Sixth Amendment. In order to obtain
the reversal of a conviction or a death sen-
tence on such grounds, a defendant must
show both (1) that the identified acts or
omissions of counsel were deficient, or out-
side the wide range of professionally compe-
tent assistance, and (2) that the deficient
performance prejudiced the defense such
that, without the errors, there is a reasonable

if the state court’s ruling rests on an independent
and adequate state law ground (absent certain
limited exceptions). Wainwright v. Sykes, 433
U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594
(1977); Johnson v. Singletary, 938 F.2d 1166,
1173 (11th Cir.1991) (en banc), cert. denied, —
U.S. —, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992).
The procedural default doctrine requires federal
courts to show deference for state procedural
rules. Claims raised improperly in the state
postconviction review process may be barred,
Presnell v. Kemp, 835 F.2d 1567, 1580 (11th
Cir.1988), cert. denied, 488 U.S. 1050, 109 S.Ct.
882, 102 L.Ed.2d 1004 (1989), and this court has
specifically held that the procedural require-
ments of Florida’s Rule 3.850 constitute indepen-
dent and adequate state grounds under the appli-
cable law, Whiddon v. Dugger, 894 F.2d 1266
(11th Cir.), cert. denied, 498 U.S. 834, 111 S.Ct.
102, 112 L.Ed.2d 73 (1990). Accordingly, the
district court appropriately addressed Bolender’s
- ineffective assistance of counsel claim by consid-
ering only those allegations that relate to the
potentially mitigating testimony that Bolender’s
mother and sister could have provided. We do
likewise. See Footman v. Singletary, 978 F.2d
1207, 1211 (11th Cir.1992).


3

BOLENDER v. SINGLETARY 1555
Cite as 16 F.3d 1547 (11th Cir. 1994)

that trial counsel was ineffective for failing to
present mitigating evidence at the sentencing
hearing, despite what the court acknowl-
edged to be the attorney’s strategic decision
to rely exclusively on a quick life recommen-
dation from the jury. The state appealed the
order vacating the death sentences, and the
Florida Supreme Court reversed and direct-
ed that Bolender’s sentences be reinstated.
State v. Bolender, 503 So.2d 1247 (Fla.1987)
(“Bolender II”) (finding that the mitigating
evidence presented during evidentiary hear-
ing was known and available to counsel at
time of sentencing, but that counsel made a
tactical decision not to present such evi-
dence), cert. denied, 484 U.S. 873, 108 S.Ct.
209, 98 L.Ed.2d 161 (1987).

In April of 1989, after the trial court had
reinstated his death sentences, Bolender filed
a second motion for postconviction relief un-
der Rule 3.850. The Governor signed a sec-
ond death warrant in January, 1990, and
execution was scheduled for March 7 of that
year. Following oral argument, the trial
court found Bolender’s motion to be a succes-
sive Rule 3.850 petition and sdenied relief
without holding an evidentiary hearing. Bo-
lender appealed this judgment and, on March
5, 1990, filed an application for a stay of
execution and a petition for writ of habeas
corpus in the Florida Supreme Court. The
stay was granted in order to allow the trial

8. The court found that all but one of the issues
raised on the Rule 3.850 appeal were procedural-
ly barred, in that they could or should have been
raised on direct appeal or in the first postconvic-
tion relief proceeding. Bolender III, 564 So.2d
at 1058. The court considered, and rejected on
the merits, Bolender’s claim that the trial court
had refused to consider, and that trial counsel
had felt constrained in developing and present-
ing, nonstatutory mitigating evidence in violation
of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct.
1821, 95 L.Ed.2d 347 (1987). Jd. In addition,
the court declined to consider the claims raised
in Bolender’s habeas corpus petition, including
claims of ineffective assistance of counsel, be-
cause the court had “‘fully considered the propri-
ety of Bolender’s sentences on direct appeal”
and ‘‘[hjabeas corpus is not to be used to reliti-
gate issues determined in a prior appeal.” Id. at
1059.

9. The district court properly denied Bolender’s
request for an evidentiary hearing. As we have
recently noted, ‘‘[i]t is well established that a
habeas petitioner is entitled to an evidentiary
hearing on a claim if he or she alleges facts that,

court to hear additional arguments. After
the court again denied relief, the Florida
Supreme Court heard oral argument and de-
nied relief as to all pending claims. Bolender
v. Dugger, 564 So.2d 1057 (Fla.1990) (“Bolen-
der III”).8 The Governor then signed a
third death warrant, and Bolender’s execu-
tion was scheduled for October 4, 1990.

[2,3] At this point, Bolender entered the
federal system by filing the instant petition
for a writ of habeas corpus in the United
States District Court for the Southern Dis-
trict of Florida on October 1, 1990. The
district court granted a stay of execution and
held two days of non-evidentiary hearings to
address the matters presented by Bolender’s
petition. The district court then denied Bo-
lender’s requests for an evidentiary hearing
and denied relief. Bolender v. Dugger, 757
F.Supp. 1400 (S.D.Fla.1991). The court did
grant a certificate of probable cause to ap-
peal, however, and this appeal ensued. Bo-
lender appeals the denial of the writ of habe-
as corpus as to five of his claims as well as
the district court’s refusal to conduct an evi-
dentiary hearing.’

Ordinarily, we discusss«claims on appeal
relating to a criminal defendant’s conviction
before evaluating possible sentencing errors.
In this case, however, we find no merit to

if proved at the hearing, would entitle petitioner
to relief.” Meeks v. Singletary, 963 F.2d 316, 319
(11th Cir.1992), cert. denied, —— U.S. ——, 113
S.Ct. 1362, 122 L.Ed.2d 741 (1993). An eviden-
tiary hearing is not necessary, however, where
the state courts have made findings of fact rele-
vant to the claims at issue; those findings are, of
course, entitled to a presumption of correctness.
Id. In addition, no evidentiary hearing is neces-
sary where the proffered evidence would not
affect the resolution of the claim. See Stephens v.
Kemp, 846 F.2d 642 (11th Cir.) (no evidentiary
hearing necessary on ineffective assistance claim
where evidence petitioner sought to introduce
would not affect resolution of issue), cert. dented,
488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158
(1988).

As we explain during the course of our discus-
sion of Bolender’s substantive claims, the state
courts have made the findings of fact necessary
to decide most of the issues raised in this appeal.
On the other claims, an evidentiary hearing
would not aid in the resolution of the issues.
Accordingly, Bolender is not entitled to a federal
evidentiary hearing.


BOLENDER v. SINGLETARY

1557

Cite as 16 F.3d 1547 (Lith Cir. 1994)

probability that the balance of aggravating
and mitigating circumstances would have
been different. Jd. at 687, 104 S.Ct. at 2064.
We begin with a discussion of the first re-
quirement.

A.

[9-11] The performance prong of the
Strickland standard requires that defense
counsel provide “reasonably effective assis-
tance,” Strickland, 466 U.S. at 687, 104 S.Ct.
at 2064, or simply representation that evinces
“reasonableness under prevailing profession-
al norms,” id. at 688, 104 S.Ct. at 2065. It is
important to note that judicial scrutiny of an
attorney’s performance is appropriately high-
ly deferential because the craft of trying
cases is far from an exact science; in fact, it
is replete with uncertainties and obligatory
judgment calls. Indeed, a reviewing court
must avoid the “distorting effects of hind-
sight” by viewing the performance as it ap-
peared to counsel at the time, zd. at 689, 104
S.Ct. at 2065, and must “indulge a strong
presumption that counsel’s conduct falls
within the wide range of reasonable profes-
sional assistance.” Jd.; see also Elledge v.
Dugger, 823 F.2d 1439, 1442-43 (11th Cir.
1987), cert. denied, 485 U.S. 1014, 108 S.Ct.
1487, 99 L.Ed.2d 715 (1988). As we have
explained, “[iJn practice this means that
courts will not find that an attorney is incom-
petent for using a particular approach to a
case so long as that approach was reason-
able.” Harich v. Dugger, 844 F.2d 1464,
1469 (11th Cir.1988), cert. denied, 489 U.S.
1071, 109 S.Ct. 1855, 103 L.Ed.2d 822 (1989).
That is, “a court should be highly deferential
to those choices ... that are arguably dictat-
ed by a reasonable trial strategy.” Devier v.
Zant, 3 F.3d 1445, 1450 (11th Cir.1993).

[12-14] The failure to conduct a reason-
able investigation into possible mitigating cir-

11. Under some circumstances, an attorney may
make a strategic decision not to pursue a partic-
ular line of investigation, or to pursue a particu-
lar inquiry only so far, see Rogers v. Zant, 13 F.3d
384, 386 (11th Cir.1994), but the decision not to
investigate a particular defense issue must be
reasonable. Strickland, 466 U.S. at 690-91, 104
S.Ct. at 2066; Armstrong v. Dugger, 833 F.2d
1430, 1432-33 (11th Cir.1987). An ‘‘attorney’s

decision not to investigate must not be evaluated
with the benefit of hindsight but accorded a

cumstances may render counsel’s assistance
ineffective. Lightbourne v. Dugger, 829 F.2d
1012, 1025 {11th Cir.1987), cert. denied, 488
U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346
(1988). A defense attorney is not required to
investigate all leads,!! however, and “there is
no per se rule that evidence of a criminal
defendant’s troubled childhood must always
be presented as mitigating evidence in the
penalty phase of a capital case.” Devier, 3
F.3d at 1453. Indeed, “{cJounsel has no ab-
solute duty to present mitigating character
evidence” at all, Mitchell v. Kemp, 762 F.2d
886, 889 (11th Cir.1985), and “trial counsel’s
failure to present mitigating evidence is not
per se ineffective assistance of counsel,” Ste-
vens v. Zant, 968 F.2d 1076, 1082 (11th Cir.
1992), cert. denied, —- U.S. ——, 118 S.Ct.
1306, 122 L.Ed.2d 695 (1993). As we have
explained:

In order to determine what evidence might
be appropriate, defense counsel has the
duty to conduct a reasonable investigation.
The failure to conduct any investigation of
a defendant’s background may fall outside
the scope of reasonable professional assis-
tance. After a sufficient investigation,
however, “counsel may make a reasonable
strategic judgment to present less than all
possible available evidence in mitigation.”
A lawyer’s election not to present mitigat-

_ ing evidence is a tactical choice accorded a
strong presumption of correctness which is
“virtually unchallengeable.”

Lightbourne, 829 F.2d at 1025 (citations
omitted); see also Stevens, 968 F.2d at 1082-
83.

Thus, “a determination must be made
whether the failure to put this [mitigating]
evidence before the jury was a tactical choice
by trial counsel. If so, such a choice must be
given a strong presumption of correctness,

strong presumption of reasonableness.’ Mitch-
ell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985),
cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97
L.Ed.2d 774 (1987). The Supreme Court has
outlined the general standard: ‘‘{iJn any ineffec-
tiveness case, a particular decision not to investi-
gate must be directly assessed for reasonableness
in all circumstances, applying a heavy measure
of deference to counsel’s judgments.’””  Strick-
land, 466 U.S. at 691, 104 S.Ct. at 2066.


1558

and the inquiry is generally at an end.”
Porter v. Singletary, 14 F.3d 554, 557 (11th
Cir.1994). The only question then remaining
would be whether Bolender’s attorney had a
reasonable basis for his strategic decision
that an explication of the defendant’s family
background would not have reduced the risk
of the death penalty. Devier, 3 F.3d at 1453.
Nonetheless, it is important to note that “the
mere incantation of ‘strategy’ does not insu-
late attorney behavior from review; an attor-
ney must have chosen not to present mitigat-
ing evidence after having investigated the
defendant’s background, and that choice
must have been reasonable under the circum-
stances.” Stevens, 968 F.2d at 1083.

[15-17] A thorough review of the record
in this case demonstrates that trial counsel’s
decision regarding what evidence to present
at the penalty phase of Bolender’s trial was a
reasonable, strategic choice." Initially, as
part of his investigation into possible mitigat-
ing circumstances, Bolender’s counsel inter-
viewed relatives concerning Bolender’s fami-
ly background. Indeed, a review of the state
court evidentiary hearing transcript reveals
that trial counsel was aware of Bolende?’s

background in general, and of the availability’

of his mother and sister to testify in particu-
lar.‘ The Florida Supreme Court made
such a finding of historie fact, see Bolender
IT, 503 So.2d at 1249, which we presume to
be correct. This case is therefore distin-
guishable from those in which we have found
a complete lack of investigation into a defen-
dant’s background to be unreasonable. See,
e.g. Blanco v. Singletary, 943 F.2d 1477,
1501-02 (11th Cir.1991), cert. denied, —

12. Ineffectiveness of representation is a mixed
question of law and fact subject to de novo
review. Accordingly, ‘‘in a federal habeas chal-
lenge to a state criminal judgment, a state court
conclusion that counsel rendered effective assis-
tance is not a finding of fact binding on the
federal court to the extent stated by 28 U.S.C.
§ 2254(d).” Strickland, 466 U.S. at 698, 104
S.Ct. at 2070. Of course, state court findings of
historical facts made in the course of evaluating
an ineffectiveness claim are subject to the pre-
sumption of correctness, and similar federal dis-
trict court findings are deemed correct under
Fed.R.Civ.P. 52(a) unless clearly erroneous. See
Bush v. Singletary, 988 F.2d 1082, 1089 (11th
Cir.1993). The question of whether a decision by
counsel was a tactical one is a question of fact.
Horton v. Zant, 941 F.2d 1449, 1462 (1 Ith Cir.

16 FEDERAL REPORTER, 3d SERIES

U.S. ——, 112 S.Ct. 2282, 119 L.Ed.2d 207,
and cert. denied, — U.S. —, 112 S.Ct.
2290, 119 L.Ed:2d 213 (1992); Blake v.
Kemp, 758 F.2d 523, 533 (11th Cir.), cert.
denied, 474 U.S. 998, 106 S.Ct. 374, 88
L.Ed.2d 367 (1985).

In addition, trial counsel employed the re-
sults of his investigation in the manner best
calculated in his judgment to achieve the
result he tactically sought: a quick, unani-
mous recommendation of life imprisonment
from the advisory jury. Indeed, the jury
deliberated only twelve minutes before rec-
ommending incarceration for life as Bolen-
der’s sentence. After reviewing the available
evidence in mitigation, Bolender’s attorney
elected not to introduce further testimony at
the penalty phase of the trial; instead, he
decided simply to argue that Bolender should
be treated no more harshly than his code-
fendants, one of whom had been found in-
competent to stand trial while another had
received sentences of life imprisonment as a
result of a plea agreement with the Govern-
ment. That counsel’s strategic decision “was
effective to some degree is evidenced by the
jury recommendation that Bolender be sen-
tenced to life imprisonment.” Bolender IT,
503 So.2d at 1248-49.

According to the testimony of Bolender’s
trial counsel, his strategy was based upon
several factors. First, Bolender himself had
taken the stand during the guilt phase of the
trial and had described some aspects of his
background and employment history; coun-
sel elected to rely on that testimony to per-
sonalize the defendant.'4 Second, counsel

1991), cert. denied, — U.S. ——, 112 S.Ct. 1516,
117 L.Ed.2d 652 (1992).

13. Bolender’s mother testified at the Rule 3.850
evidentiary hearing that she had discussed Bo-
lender’s background with his attorney, who thus
“knew it all’ when he decided against putting
her on the stand. The defendant's sister testified
that she too had discussed these background
issues with counsel before trial, in‘ his office.
Both reported that they were present in the
courtroom and ready to testify during the penalty
phase of the trial.

14. In fact, “[t]his court has specifically ruled that
counsel's decision to rely on the defendant’s tes-
timony rather than offering the testimony of the
defendant's family members to show a ‘turbulent


[(ReM, Viva Ka

6A—Reno Gazette-Journal Sunday, July 29, 49908 Se * elicone PEE z lace Gest pats Bate

Florida governor predicts more executions

L

STARKE, Fla. (AP) — The ex-
ecution of a convicted killer
should end weeks af controversy
over whether Florida’s electric
chair is a valid means of execu-
tion or a torture device as de-
fense attorneys claimed, the gov-
ernor said.

“Plorida should now be able to
resume carrying out its capital
punishment statute,” Gov. Bob
Martinez said after Anthony Ber-
tolotti was pronounced dead Fri-
day evening.

“The people of Florida can
know that criminals who show a
total disregard for human life
will indeed be called upon to pay

the ultimate penalty for their ac-
tions,” the governor said.

During the May 4 execution of
Jesse Joseph Tafero, flames and
sparks shot from the inmate’s
head and smoke filled the execu-
tion chamber. Tafero was finally
declared dead after three jolts of
electricity.

Attorneys for three condemned
inmates won indefinite stays
from the 11th U.S. Circuit Court
of Appeals in Atlanta with argu-
ments that the electric chair was
not functioning properly.

As a result, Martinez ordered
an independent examination of
the chair. In a demonstration wit-

nessed Monday by the media and
state officials, Michael Morse, an
associate professor of electrical
engineering at Auburn Universi-
ty, concluded the chair was func-
tioning properly.

Prison officials said a moist-
ened synthetic sponge contact,
used for the first and only time in
the Tafero execution, caused
flames to rise from his head.

On Friday, the U.S. Supreme
Court upheld a ruling by a lower
court that the chair’s 2,000-volt
charge is “sufficient to cause
painless termination of life,”
ending the legal alternatives for
Bertolotti.

O66T/L2/L (a83ues0) *BTa *oeTe SyoeTq ‘Auouquy *TILOTOLMA

inhingerbed in sstrateey.: planning when

Bernice Webster phoned . shortly af-

ter nine o’clock. io

“Iam going to outings to play along
with Anthony and not-make him suspi-
cious, like you told mé,’’ she said to
Scoggins. .‘‘I don’t know where he’s at
now. I think he’s going to work today.”’

Scoggins realized that Webster did not
know he had been looking for her arid
that she did not know he knew she was
with Bertolloti. ‘‘Where are you?’’ he
asked. hie ® ;

Webster named an intersection not far
from the apartment house and said she
was calling from a phone outside a con-
venience store. ‘‘Okay.’’ Scoggins said.
‘*Keep in touch.”’

Upon hanging up, he radioed an offi-
cer on patrol near the convenience store
to proceed there with all haste to pick
Webster up. Minutes later, Scoggins

himself arrived at the scene. Webster

was sitting in the patrol car, crying.
When she saw Scoggins, ~ieh blurted the
whole story out.

‘*Anthony has admitted to me that he
killed that woman,’? she said..‘‘I know
where the clothes are; they’re over at the
apartment and they’ ye got blood all over
them. He described in detail what he did
and how he took the woman’s car.’’

Scoggins asked.

“He said he went inthe woman’s
house to the kitchen to try to get some
money and that everything went sour in
there. He said the woman pulled a knife
on him and he took it away and stabbed
her five.or six times..He was very upset;
he was crying and he was very remorse-
ful,*?

“*So where is he?”

‘“We spent the night at that inn there
across the street.’’ She gave the number
of the room where they stayed. ‘‘He’s
still up there in the room,”’

With Bertolloti’s confession to Webs-
ter, Scoggins believed he now had prob-
able cause to make an arrest. Calling for
backup, he proceeded: to the designated
room, only to find it empty, He noted the

“.- window there looked out on the con-

venience store across the, street and fi-
gured Bertolloti had. been watching
‘Webster when she went.to make her
phone call. When he saw the patrol offi-
cer pick Webster up, he took off.

Scoggins checked the time on his”

watch. It was 9:30, He walked back to
the patrol car, got a description of the
clothes Bertolloti was wearing from
Webster and got.on the police radio.
‘*Clear all channels,’’ he ‘ordered: He
- identified himself and his location, then

64

Pees
£

said, ‘‘The murder suspect from Rose-
mont, Anthony Bertolloti, 31, is some-
where in this area. I need a get all avail-
able units to this area to try to locate the
suspect.”’ He ended with a description of
how Bertolloti was dressed.

“As. luck would have it, Officer Rick
DeTreville, of the police community re-
lations division, just happened to be
driving back to headquarters from a
meeting in Winter Park, just happened to
be in a marked police car, just happened
to overhear Scoggins’ call to all units and
just happened to think it would be a good
idea to proceed to the designated area. In
the event of an arrest, he wanted to be on
the spot to get first-hand information to
release to the news media. It further hap-
pened that as he swung around and
headed south on Edgewater Drive, he
spotted a man, who was wearing clo-
thing that matched the description of the
suspect’s; walking north.

He drove past, circled around a couple
of back streets and pulled the police car
to the curb on the corner of Lakeview
Drive, just off Edgewater. As the man
continued walking in DeTreville’s direc-
tion, the community relations officer
radioed Det. Scoggins, explained what

-he’d done, where he was and the im-
.. Mediate situation. ‘‘The suspect is now
‘“‘What exactly did he tell you?’’ .

about twenty feet from my car and walk-
ing in my direction,’’ he said. ‘‘I’m go-

“ing to try to take him.”’

He got out of the car, ponted his .38-
caliber revolver directly at the suspect
and ordered, ‘‘Stop! I am a police offi-
cer. Get down on the ground. I’1l- shoot

* you where you are if you attempt to re-

sist.:Do you understand?’’
Bertolloti lay on the sidewalk on his
stomach and allowed DeTreville to

-search him without incident. The officer

found and removed a six-inch knife from
the waistband of the suspect’s pants. At
that point, Scoggins and other in-
vestigators reached the scene, cuffed
Bertolloti’s hands behind his back and
stood him up.

Introducing himself, the investigator
said, ‘‘I’m investigator Scoggins and
I’m going to.be talking to you at the
station soon. We’ll discuss things further
at the station and, for now, we’ll let it go

at. that.”’

Bertolloti uttered not a word—not
even when he was put under arrest and
driven to the Municipal Justice Building
in a patrol car. There, Scoggins and:

‘Keefe met with him in the taping room.

The chief investigator removed Ber-
tolloti’s. handcuffs before sitting
to begin the interview.

‘‘Anthony,’’ he said, ‘‘I’m sure you

know you are here for the incident that
happened at Rosemont.°That’s what you
were taken into custody for, and I would
like to ask you some questions about it. I

can’t ask you any questions until I read .

you your rights. You don’t have to talk to
me; it’s your choice.’* » .

As Scoggins read the rights, Bertolloti
began to cry. By the end of the reading,
he was sobbing pathetically. ‘‘I’ll tell
you everything that happened up there,”’
he said. ‘‘I want to die for it, too, I don’t
want to live.’

His sobbing continued throughout the ©

confession which began with his telling
how he walked off the Lockhart job on
the morning of September 27th. He de-
scribed walking down North Orange

Blossom Trail to the Rosemont neigh- ,

borhood where he saw the woman he
now knew as Mrs. Ward carrying grocer-
ies from: her station. wagon into her
house. He said he told Mrs. Ward that his
car had broken down and asked if she
would make a phone call for him. She
told him he could come in and make the
call himself.

Bertolloti then said that when he fol-
lowed Ward into the house through the
kitchen, he saw a knife lying by the side
of the sink and picked it up. ‘‘I asked her
for money,”’ he said. ‘‘I told her I needed
it bad. She got her purse and gave me the
thirty-one dollars that was in it. I told her
I needed more. She said she would see if
there was any in a safe in another room. I
followed her there. She opened the safe;
there wasn’t any money in it.’’

“Were you still threatening her with
the knife?’’ Scoggins asked.

“T still had the knife. And at some
point—I can’t remember when—I hit her
with some object and started choking
her.”’

“Get on with what you do remem-
ber,’’ Scoggins urged. ,

‘*The woman tried to talk me into putt-
ing the knife down; she asked me to pray
with her. When that didn’t work,’’ the
suspect said, ‘‘she tried to escape. I
grabbed her and she tried to take the
knife away from me. She:was wailing
hysterical. I got mad; I start stabb-
ing her. The knife broke and I could tell

. She was still alive. I ran to the kitchen,

got another knife and stabbed her until
she stopped moving. That way, I knew
she was dead. I left. I got into her station
wagon, drove it to an apartment building
near where I live, parked it in the back
and walked home.’

Scoggins found Bertolloti ““very bur-
dened’’ during the confession. He com-
mented afterward: ‘‘Bertolloti seemed
to have the weight of the world on his

should
hit hin
confro
had co
done n
was ju
was ju
perpet
the co!
wantec
was bz
ly kept
been u
son w}
those :
was th
Aci
the Or
assign
him.
The
the lo
Bertol
Webst
evider
mont
**stran
under

a phot

Bertol
proces

\y


that
you
ould
it. I
read .
j lk to

loti
ling,
* | tell
‘re,””
jon’t

it the
ling
yb on
e de-
‘ange

eigh- ,

in he
‘ocer-
> her
iat his
if she
. She
xe the

iid her
| see if
yom. I
e safe;

‘+r with

some
hit her
hoking

emem-

to putt-
to pray
‘,”” the
cape. I
ike the
wailing
stabb-
j vuld tell
<itchen,
er until
I knew
¢ station
yuilding
he back

ery bur-
m-
ied
1 on his

shoulders. What he had done, had really
hit him. After eight days, he was finally
confronted with this atrocious crime he
had committed against this lady. who had
done nothing to him. The realization of it
was just really eating his soul apart. He
was just overwrought with what he had
perpetrated. He kept saying all through
the confession that he wanted to die, he
wanted to die. We knew the confession
was basically true because we’d careful-
ly kept secret the fact that two knives had
been used in the stabbing. The only'per-
son who could have known that besides
those of-us who were working the case
was the murderer himself.’

A circuit judge remanded Bertolloti to
the Orange County Jail without bail and
assigned a public defender to represent
him. ae

The following day, Scoggins tied up
the loose ends of the case: he retrieved
Bertolloti’s bloodstained clothing from
Webster’s apartment and entered it into
evidence. He had neighbors in the Rose-
mont subdivision who had. seen the
‘‘stranger with the rolled-up newspaper
under his arm’” identify the suspect from

- a photo lineup. He also had a sample of

Bertolloti’s blood and his ‘fingerprints
processed at the crime lab—the blood

AUS

;

type proved consistent with the semen

specimen taken from Ward during the
autopsy, and the fingerprints. matched.

those on one of the knife handles. Scog-
gins did the routine paperwork; and.
finally, he recommended to the board of
directors of the Crimeline program. that
Bernice Webster be given a reward, *‘In-
formation from the woman led to. the
arrest of Anthony Bertolloti, 31, eight
days after Carol Ward, 46, was stabbed
to death at her northwest Orlando
home,’’ he advised. ‘‘Without her help,
the murder might not have been solved as
quickly as it was.”’ tad

At the annual meeting of the
Crimeline board, coincidentally taking
place that evening, the directors decided
to pay Webster $1,000, the maximum
reward under the program. ~

A few days later, a woman out-of-
town relative of Bertolloti’s phoned Inv.
Scoggins long distance to tell him she
thought Bertolloti’s girlfriend “‘probably
made him commit the murder’’'or was
‘‘involved.’? The woman admitted: she.
did not know Bernice Webster, **

‘*How can you make such an accusa-
tion without even knowing the person?”’

Scoggins asked. He dismissed the call
because he didn’t believe Bernice Webs- ‘

You

Get FRONT,

th

You don't baretobe® oe
a sleuth to find the solution: |

‘PAGE DETECTIVE

ter was capable of such involvemnt.. .

‘ Nonetheless, on: October 20th, 12
days after Bertolloti’s incarceration, the
confessed killer telephoned from jail‘and
told Scoggins he wanted to make another
statement. ‘‘I’ve been covering up for
Bernice,’’ he said. ‘‘But I’ve talked with
a woman relative of mine and she told me
not to hold back anymore.’’

-. In the second taped statement, Ber- .

tolloti ‘maintained that the robbery and
slaying of Carol Ward was.his girl-
friend’s idea. ‘‘We needed money,’” he
said. ‘‘Bernice drove me up to Rosemont
and told me to’case houses for burglary.

We came upon Mrs. Ward as she was’

unloading groceries from her station

wagon. Bernicé got'us into the house by _

saying ‘her car broke down and she
needed to make a telephone call.’’

* Once inside; Bertolloti said, his girl-
friend started choking Mrs. .Ward and he
grabbed a knife. He said it was Bernice

‘who took money’ from’ Mrs. Ward’s

purse then disappeared somewhere in the
house and that Mrs, Ward tried to give
him jewelry becausé she didn’t have any
more money. He.didn’t want the jewel-

-ry, he said.»

‘‘Mrs. Ward was begging me please

‘not to hurt her,’* Bertolloti continued,

ae

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art

: oe 65


onan penn rmeyerernenrnres enero eam

er ae nage 4798
‘iy RA ee y

, . “and I assured her that I Souldn’ t. That.
‘es 4s when the’ Jady suggested me having -

but Bemice. ‘returned and had a fit. She

told me. that we had to leave.’’ The sus-

_ «pect then described how Mrs. Ward got

von her knees, grabbed Bemice around ©

«the legs and begged his girlfriend not to.

hurt her. ‘Bernice said,’’ he continued, os

“S5$We.-can’t leave her, like this;*she.
‘knows what y we're driving.’ She told me-
‘to stab the: Jady, so I did.?’¥4-5+. ah
“e Scoggins found the computer-like de-
-livery-of Bertolloti’s second confession

SO diametrically opposed to the emo- °

tionally wrought relating of the first that
he didn’t believe a word of it.

; * A circuit court jury of ten women and

: two men didn’t either when the two tapes -
were played.in.the courtroom during
'  Bertolloti’s,.trial, beginning March 29,
“1984, The jurors returned a verdict of

- guilty of murder in the first degree and -

voted nine to three i in favor of the death
penalty!

~ At. the petencine on April 12th, Cire

j cuit J t Judge James Stroker agreed with the

-sex.with her, She took off her ‘clothes, -

/
jury’s recommendation. His written re-
port read in part: “‘It is difficult for the
mind to imagine the horror and pain that

Carol Ward must have suffered during |

the defendant’s clumsy and protracted
efforts to kill her. She was stripped or
forced to disrobe, threatened, then

 bludgeoned, strangled and repeatedly

stabbed. Her wounds clearly indicate
that she tried to defend herself. A knife
was actually broken from its handle in
the first series of stabbings. Because the
woman was still moving, the defendant
left the area and returned with a second
knife to continue the stabbing.’’
Stroker found no mitigating factors in

- Bertolloti’s favor to weigh against the
aggravating factors and sentenced the

defendant to death in the electric chair.

EDITOR’S NOTE: |
Bernice Webster is not the real name
of the person.so named in the foregoing
story. A fictitious name has been used
because there. is. no reason for public
interest in this person’s true identity.

f

_ “3 st

» County; where she introduced him to her: »
» family, not‘as her husband, .but as a
friend. The couple stayed in Lake Coun-.

“ty through July 14th, then went to An- ..

* derson where the bride was introduced to,
athe groom’s family.

e yeas

“et
~ On July 716th,” Cynthia Stanley and, , bright yellow Chevelle had been found

® BATTERED BRIDE CONTINUED FROM PAGE. 25

> F

», Cynthia not.be told: about the fire until
_she could be in the company of a family
‘member close to'her. —

That afternoon Gerald Stanley re-
turned to Anderson. Cynthia was told
about her house burning and also that her

ee “Gerald had an argument. At that time ‘shot ® by Trinity County deputies, wrecked and

Ee ie accised him of beating her and committ-#3

burned. The car had been driven off a

ne /ing “spousal 1 rape’’ on a back road lead-'%s back road in a brushy area and about a

> ing from Hayfork to Red Bluff, the coun- _
“ty seat of Tehama County. She claimed «,

ke she was.then taken from there. to the | ag

© home of one. of Stanley’ s family mem- °
£ + bers i in Anderson. /

. ~On July 17th, Cynthia apparently with |
“ some difficulty, had called a family”
«member in Lake County and asked him
“to have the locks on her house changed. ‘

~The family: member complied with her ::
p Teauest that morning. F

» Four,a,m.. July 18th. Cynthia Stan-

ley? s house in Lake County. burned to

_ / the ground, Her husband was not in An- |

~~» derson at the time. He had gone to Be-

t

_ quarter of a mile of chapparel had been
., burned ‘with the automobile.
Cynthia had no home, which was her
* pride and joy, no car, and she wanited to
~~ go back to her family. She telephoned an
old friend of the family, a man in late
‘middle age, and asked him to*come to
-Anderson and give her a ride home. He
questioned ‘Cynthia first, demanding to
‘know why Gerald was not transporting
her.

‘There have been some problems,”
she responded. ‘‘I don’t want him to.’

‘The man, who worked at the cinder
. plant where Cynthia was employed as a

~ necia,. California, in the San_Francisco. _ bookkeeper, and who was sitting next to

Bay area;‘to pick up two children by.a
“. former marriage with whom;he had. -
; visitation, rights.

A member of Stanley’s family was

her the night she died, agreed to go to
Anderson and take her to Lake County.
When the friend arrived at Anderson,

_he was informed by a member of.

eontncted by a relative of Cynthia’s and‘ ~Stanley’ s family that Cynthia and Gerald

told about the destruction of the house. .

«had gone for a ride. An hour or two

At the tim: ‘the relative aed that it passed before they returned. At that time

the young woman and her older friend’
departed for Lake County..

On the way back!to Lake. County, .
Cynthia had at first seemed frightened, :
but unwilling to talk of her troubles. |
She looked at the back of the car con-"
tinually, as though she was afraid some- :

one was following her. «
Eventually she broke down and told
the friend what had happened. She told’

him about the beating; the spousal rape,

and how badly she felt now that her yel-
low: Chevelle and her house’ had been
destroyed,

The relationship between Cynthia and
her older friend was a close one which
had evolved when he, who was

approaching 70 years, was injured onthe —

job and confined to his home for several
weeks. Cynthia had visited him regular-
ly, cleaned his house, and acted as a sort
of amateur nurse. They had developed a
close, platonic friendship. during this
period, probers learned.

Late that night: they arrived in Lake
County, and Cynthia stayed at her old-
er friend’s house at Clear Lake Oaks:

ae
oe hile

ict
Sle a ce OI ees Sex on

EET gee 2
OSU eee en Ts Cae it
.
.

The next morning he called her family -

and told them she was fine and that he
would bring her to them as soon as she
was ready.

That afternoon, two. things happened.
Cynthia rejoined her family at the resort
near Nice, and an anonymous caller, tak-
ing advantage of the Shasta’County Sec-
ret Witness program, telephoned the
Shasta County Sheriff’s Department. He
told Sergeant Ron Atkins that he wanted
to report four murders he knew were
planned, but said he did not want to talk
on an Official line because he knew the
department’s telephone calls were taped.
He then said he would telephone later if a
detective would take the call at a service
station off Interstate Highway 5.

Sergeant Atkins went to the service
station and about five minutes later he
was called to the business phone. At that
time the same male caller told him he had

been with Harry Shell of Hayfork recent- -

ly and that Shell had been drinking
heavily.
Later, the caller said, the two had

traveled to Clear Lake where Shell con--

tinued to drink and to mumble something
about “taking care of Cynthia.’’ The

caller said he then disappeared for some.

time and that when he returned he an- .” |

nounced he had taken care of the prob-

lem with Cynthia—he had burned her

house down.

The informant added that Shell also # 4

said he was going to kill four people.
These included Sergeant John Howard,
of the Trinity County Sheriff’s Depart-

Stalder ars, es RE, Sa

_—

pe |

Sa

eparted he had .
y, unassuming
orutal, hideous,
in Orlando or

| was stabbed
assailant, who
taken from the
She was also
en on the head

went through a
h school totally
appened at his
~e@ 4t_approx-

ed at the

~ Det. Bob Mundy was one of investigators

who probed merciless stab-slaying

of Carol Ward, 46. Kitchen knife (above)

was one of weapons used. Victim’s
body was found, half-naked, in family
dressing-room/library (left)

§ % '
school in time to check in and begin his
first American History class at 8:10. The
school day was busy for the teacher and
he kept up his active pace until all of his
classes and €xtracurricular work had
been completed by 3:45 p.m.

Later\\ as he drove ‘along heading for
Orlando and home, he decided that this
was a good ‘time for him to stop for a
haircut'which he needed. After his hair-
cut and a stop at the cleaners, he drove~
directly home.

-Pulling into his di way he was sur-
prised to’seé thé garage door open.
Neither He nor Carol ever left that door
open. Both had electronic remote control
devices to operate it. ‘‘That’s strange,”
he thought, as he cut his engine and en-
tered the house. It was about 5:30 p.m.

As he walked into the kitchen it struck
him that Carol’s car was not in the garage
and he thought about that, too. He ste
his head and asked himself silently,
wonder where she is?”’

In the kitchen he immediately spotted

- bags of groceries that were tumbled and’

in disarray. Some of the packages facing
him were soggy wet. He could not un-
derstand why Carol hadn’t put these
frozen foods into the freezer. There was ©
something wrong here. He was suddenly.
apprehensyay


sii of the house. He noted the condi-

© tion of. the groceries and pointed out to
oe Scoggins that there was a pile of 14-karat

Officer Jim Bishop:heads Orlando PD's
Crime Line, which figured importantly
in solution of the abet Ward murder

paca -

With his dry cleaning’ ‘still in his hand,
he walked through the house into the
library, which is also used as a dressing
room—and froze. ‘

There before him lay Carol, naked
from the waist down, with multiple stab
and head wounds... >

Horrified by the sight: he tried to
assimilate in his mind what was before
him. In stark disbelief, he managed to
get to the telephone, and. call the Orlando
police. |..." bee, aed

Officer. R. Murray responded to the
alert. He asked headquarters to dispatch
additional units to the Ward residence to
help him secure the scene. Murray also

notified the Criminal Intake Division *

that there: had been a homicide. at the
Ward home..: = yee5

Investigators G: Keefe, Bob Mundy,
Mike Wenger and: Sergeant C.D. Smith
all. arrived on. the scene, followed by
Investigator T.R. Scoggins, summoned
from his home. Scoggins was in charge
of the case and would be the lead in-
vestigator. These officers, were joined by
Evidence Technician: Jay Hinton and
Denny McDowell,..a ‘civilian crime
scene technician... (ha

Mundy: and Wenger. began an im-
mediate neighborhood canvass, hoping
to discover someone who, might be able
to provide information that could be used

in developing the: solution to the ghastly °

killing.
Investigator Keefe made an in- -depth

fe4 Ling

. 36 Master Detective - :

- gold jewelry lying near the kitchen ‘sink,

Also, that Mrs. Ward's outer clothing,

~ her undergarments and her shoes had
~ been left in a heap near the end of the
s kitchen. A kitchen knife protruded from
‘her abdomen. A second knife, with its
. blade broken, lay nearby.

“There was a small towel on the back of

ans: nearby. chair. The towel was stained

with blood, and the sink was tinted and
spattered with blood, indicating that the
killer probably had attempted to wash the
blood from his hands after the murder
shad been committed. This was purely
conjecture, of course, but it made
sense to the probers.

The processing of the crime area
accelerated while Sergeant Smith di-
rected the activities. Investigators Scog-
gins and Keefe transported William

te Some of murder victim’s clothing was found piled up (arrow) at “i of kitchen

Ward to the Orlando Municipal Justice
Building, where they took a sworn state-
ment from him.

The husband revealed: that he and

Carol had been married since. 1962 and «

were the parents of one child,’a 12-year-
old boy. Ward disclosed that his wife had

‘‘numerous health problems, most:

stemming from severe continuing mig-
raine headaches. ”’ He said that Carol had
used numerous medications, desperately
seeking relief from the severe
headaches, and many of the health’ pro-
blems that she suffered were actually
side effects from some of the medica-
tions.
i As the interview swith Ward contin-
ued, the police officers wanted to know
if there was any person who might have
had some motive, some reason for kill-
ing his wife. :

Ward told the investigators that there
was a man who had been an acquaintance

ee

Bese ne nen

of his fa

- Mark Fen

ing instru
had met '
of time,
self with
move int
that’ ther:
relations!
friendly.
said, Fe
mother
reappear
Durin
returned
back in
agreed,
a school
to becor
field. F
school,
employ:
enter th
once m:
Duri
.vandali
ample «
r@)

4

| Justice
ym state-

he and

962 and © :

12-year-
wife had
s, most
ing mig-
Zarol had
sperately
severe
calth pro-
actually
medica-

d contin- ~

|to know
ight have
1 for kill-

that there
tance

itchen.

q

\

of his ranulyestnce 1959. This man,

- Mark Fenton, about 45, had been a danc-
ing instructor‘in Coral Gable where he
had met Ward’s mother. After a ‘period
of time, he. apparently ingratiated him-
self with her and she permitted him ‘to
move into-her home. Ward emphasized
that there was nothing romantic’ in this
relationship, it was simply cordial and
friendly. For a period of years, Ward
said; Fenton moved in and out of his
mother’s home, disappen iis and

eanpe ate

- ‘During the latter part of 1982, Fenton
feeanied once more and pleaded to move
_ back in again with Ward’s mother. She
agreed, with tthe proviso that he enroll in
‘a school program at Dade Junior College
to become qualified for a job in the dental
field.' Before Fenton enrolled in the
school, however, he just drifted, ‘un-
employed, and by the time he was to
enter the school training he cisappesiee
_ once more.

’ During his stay Fenton did a. lot of
vandalizing damage to the home; An ex-
nee of this; according to Ward, was
" Orlando PD Public Relations Officer

Rich deTreville (inset) spotted

wanted suspect Anthony Bertolotti

on street, courageously tackled

him, held on until backup officers
arrived, took him into custody

“By. this’ time
_chief medical:examine and one of the ys

field, arrived with. one, of his assistants,

’ Dr. Shashi, Gore. Several other evidence
technicians also joined the investigation,

including Gene Baugh, ‘director of his
~ unit for the City « of Orlando, The medical
~ doctors examined the body and had it
removed to the morgue for autopsy at the -
Orlando -Regional Medical Center. At
1:15 a.m'nvestigator Scoggins had a
uniformed officer posted at the residence


Sree hy

and the investigation was halted for the
night. . ; eS ie

At the morgue, Gene Baugh and Offi- ' E

cer J. Hinton proceeded to take prints of
the deceased. They also attempted to lift
latents of the assailant,. but no prints were
found on her body. >

The following day,.Wednesday, Sep-°

tember 28th, Detective Scoggins pur-
sued the investigation at the junior high
school where William Ward taught the
eighth grade. The chief investigator con-
firmed the facts as Wee had recounted
them. » +

In the meantime, Investigators Mundy
and Wenger returned to the crime scene
and renewed their canvass of the neigh-

borhood. They also took the register re- ‘

ceipt which was found in’ the grocery bag

from the supermarket,for Carol Ward’s _

purchases the day of her death. The re-

ceipt indicated that her purchases had:

been made a few minutes.before 9:00

a.m. on September 27th: It appeared that ©
she had returned home shortly thereafter .

and was. attempting to put.the groceries —
_ away when she. was, nter

° a Ae
pe!

assailant,

Mundy and deer drove to the foods
market. The store personnel confirmed:
that Carol had been there. One cashier in ”
particular recalled her appearence at the |
store and her checking out.:

and Keefe met at the morgue in time for:
stab wounds of both lungs, heart and»

ple stab wounds.’’ The medical ex-
aminer also said that there had been
‘‘stab wounds of the right arm..:defen-
sive.’’ Obviously, the victim had made
some attempt to fight off her killer, She
suffered, ‘‘stab wounds of the face, in-
cised wounds of the scalp—several and
she showed evidence of blunt force
trauma of the head with diffuse contu-
sion.’’ And, the M.E. also noted, “‘It
appeared as though she had been man- .
ually strangled.”’

Later that day, photographs of Carol’s
missing 1975 Ford Torina station wagon
were furnished to the newspaper and
television stations to be publicized witha
request for information if it were seen or
found by’ any citizen. Sts Le

EE eee

ep nerene:

we

se Aine cee Riana OORS,

Shortly before 10:30 a.m:, Scogatistt mS

the autopsy, performed by Dr, Gore. He . -s
stated that Carol had suffered multiple ¥

liver. There had been ‘‘massive internal: “¥
and external hemorrhage, due to multi- -

At the

nald con
Departm
Mark Fe

* CGPD tc

with Wi
formatio
through !
3 N ds
interrog:
Building
question
that Cai
Mark Fe
cause, *
explaine
blems w
advanta;
added tl
Fenton :
wife wo
with hin
their ho
never b:

Atten
that hac
dressins
was de

’ possible

beer ste
victim ¢
that the
always

A fev
same  ¢
28th—!)
at hom
vehicle

. Ward |

an apar
Street.
with th
probab
it.
Scog
met Se


Ma)

(86

"In the earlier days the testimony of a wit-
tess given at a former trial was confined to
cduses where the witness was dead, or had be-
‘come insane, or beyond the seas or the juris-
diction of the court; but the tendency of the
modern decisions has been to enlarge the rule
of evidence as to the admission of such testi-
mony.”

The question here involved is not a rule of
evidence, but a solemn constitutional provi-
sion, that no court or Legislature may right-
fully change or enlarge.

In the Florida statute under consideration
practically no restriction is placed on the
use of testimony incorporated in a bill of
exceptions; merely that it “cannot be had.”
This is so uncertain as to mean nothing. The
cecision in this case holds that the power
to permit this is lodged in the Legislature,
and that it is not in conflict with article 11
of the Bill of Rights. It follows, therefore,
that the Legislature may permit the use of
all the testimony incorporated in a bill of
exceptions in the discretion of the court, or
the state’s attorney, and under any and all
drcumstances.

The Legislature, therefore, in order to save
the expense of a second trial, may enact:

“That in case any judgment rendered in a
dvil or criminal cause in any court of the state
of Florida shall be reversed and a new trial
awarded, any evidence taken at the previous
trial incorporated in a bill of exceptions may
be used as evidence upon any subsequent trial
of the case, as to any matter in issue at the
former trial.”

The only limitation in the statute is, where
the evidence “cannot be had”; but this limi-
tation is a matter of legislative discretion,
and under the doctrine of this case the Leg-
{slature may eliminate these words and per-
mit the use of all the evidence incorporated
in the bill of exceptions, at the discretion of
the state’s attorney. When this is done, we
may have the spectacle of a man put on his
second trial for a capital offense, convicted,
and executed, without:a single witness ap-
pearing in the courtroom to testify before the
jury that convicted him.

It is entirely a question of power. If the
Legislature has the power to permit the use
of testimony incorporated in a bill of ex-
ceptions, when in the discretion of the judge
‘it cannot be had,” it has the power to re-
move this restriction, and permit its use
under all circumstances. It is no answer to
say that this would not be done. If the pow-
er is there, it may be done.

As was said by Chief Justice Marshall:

“Questions of power do not depend on the
degree to which it may be exercised. If it
may be exercised at all, it must be exercised at
the will of those in whose hands it is placed.
* * * We are told that such wild and irra-
tional abuse of power is not to be apprehended,

.,, BLACKWELL v. STATE,

237
So.)

rand is not to be taken into view, when discuss-
ing its existence. All power may be abused;
and if the fear of its abuse is to constitute an
argument against its existence, it might be urg-
ed against the existence of that which is uni-
versally acknowledged, and which is indispensa-
ble to the general safety.” Brown v. State of
Maryland, 12 Wheat. (U. S.) 419, 6 L. Ed. 678.

It may not be amiss to say here that the
writer was a member of the Legislature when
chapter 4135 was. enacted. In that body
were many members of the old-school strict
constructionists, jealous of any attempts to
change, modify, or destroy constitutional
rights, who would have resisted to the end
the passage of this act, if it had been in-
tended to apply to criminal prosecutions.

It is true that this court has considered
this. statute as applying to criminal cases
(Putnal v. State, 56 Fla. 86, 47 South. 864;
Coley v. State, 67 Fla. 178, 64:South. 751;
Johnson v. State, 68 Fla. 528, 67 South. 100),
but the questions here presented were not
discussed, and do not appear to have been
urged. If a more careful consideration of
the subject induces a different conclusion,
the doctrine of stare decisis should not deter
us from so announcing. This court did not
hesitate to do this when the question in-
volved was the measure of damage for fail-
ure to transmit and deliver a_ telegraphic
message in cipher. ._ Western Union Tel. Co.
v. Wilson, 32 Fla. 527, 14 South. 1, 22 L.
R. A. 484, 37 Am. St. Rep. 125, overruling
Western Union Tel. Co. v. Hyer Bros., 22
Fla. 637, 1 South. 129, 1 Am. St. Rep. 222.

In Pollock v. Farmers’ Loan & Trust Co.,
157 U. S. 429, 15 Sup. Ct. 673, 39 L. Ed. 759,
it was held:

“The doctrine of stare decisis is a salutary
one, and is to be adhered to on proper occa-
sions, in respect of decisions directly upon
points in issue; but this court should not ex-
tend any decision upon a constitutional question,
if it is convinced that error in principle might
supervene.”

The facility with which the doctrine of
this decision may be extended in future con-
stitutional construction, far beyond the con-
sequences of this case, make the words of
Mr. Chief Justice Fuller of peculiar applica-
bility.

In Denney v. State ex rel. Basler, 144 Ind.
508, 42 N. EB. 929, 31 L. R. A. 726, it was
said:

“More than this, no property right or contract
between the parties. being involved, it will not
be considered that the rule of stare decisis re-
quires that, in deciding so grave a matter as
that of the constitutionality of an act of the
Legislature, we should be bound by even our
own former decisions.

“In such a case, as forcibly said by. Chief
Justice Bleckley, in Ellison v. Georgia, ete., R.
R. Co., 87 Ga. 691, the maxim for a Supreme

Court, ‘supreme in the majesty of duty as well

tibet

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| Henry v. State, 51 Neb. 149, 70 N. W. 924, 66

Am. St. Rep. 450; Johnson v. State, 88 Neb.
565, 180 N. W. 282, Ann. Cas. 1912B, 965;
Turner y. Commonwealth, 86 Pa..54, 27 Am.
Rep, 683; State v. Thornton, 10 S. D. 349, 73
N. W. 196, 41 L. R. A. 530.

_ On this subject the opinion of the majori-

¥

ty of the court says:

“We cannot commend as a model for clearness
‘on the defense of an alibi the charge as given,
and think it would have been better to have
omitted the part enclosed in brackets. The
judge, after correctly charging upon the de-
fense of an alibi by the words inclosed in brack-
¢ts, charged an abstract proposition of law—the
definition of an alibi~and we cannot say that
dt was so misleading or confusing to the jury
as to constitute reversible error on the judge re-
fusing the requested: charge.”

ed quite agree with the statement that this
charge was not “confusing.” On the con-
trary, it was quite: clear and positive; that
the evidence of an alibi must be such as to
render it “impossible” for the defendant to
have committed the crime. That has never
been held to be the requirement of the evi-
“dence to support an alibi; but the rule given
supra is the true rule. There is a vast dif-
ference between a rule that the evidence
must be such as to render it impossible for
the defendant to have committed the crime,
and one that only requires it to raise a rea-
sonable doubt of the prisoner’s presence at
and participation in the crime.

That is not only the general rule, but it
has been the supposedly settled law of this
state since the decision in Adams v. State,
28 Fla. 511, 10 South. 106.

In that case; as in this, the court gave an
instruction that was in part correct and un-

sound in part, and that was one of the er-
rors on which the Adams Case was reversed.

The wording of the instructions in the in-
stant case and the Adams Case, supra, is al-
most identical. In the Adams Case the court
charged the jury in part:

“The evidence must be such as to render it
impossible that the crime could have been com-
mitted by the person that claims he was not

present, and that he could not be guilty as
’ charged.”

In the instant case the court charged that
the evidence—
“must be such as to render it impossible that
the crime could have been committed by the par-
ty who claims that he was not present and
could not be guilty as charged.”

In the Adams Case this court said that
this instruction was error. In the instant
ease the majority of the court say it is not
error, In the discussion of this charge in
the Adams Case this court said:

“On the subject of an alibi the judge charged
the jury as follows, viz.: ‘If you find from the

yt) BLACKWELL v. STATE

So.)

evidence and are satisfied the defendant was
not present when the deceased was killed, you
must find him not guilty. To make the defense
of an alibi available as a defense, the evidence
of its existence must cover the whole time when
the presence of the defendant was required; you
must determine from the evidence whether the
defendant has proven that he was not present
when Moore was killed or not; if you have a
reasonable doubt in your minds as to whether
he was present at the time Moore was killed,
you should find him not guilty; when the de-
fense of an alibi is clearly proven by reliable
and truthful evidence, it is of all others the
most decisive, because it is impossible for a man
to be in two separate places at the same time;
the evidence must be such as to render it im-
possible that the crime could have been com-

present, and that he could not be guilty as
charged; the evidence in support of it and
against, as well as all other evidence in the
case, demands your most careful and thoughtful
consideration.’ The portion of the charge in
italics was excepted to by the accused..

“We think the proposition of law stated in the
first clause of this charge is proper; that is, to
the effect that, if the jury have a reasonable
doubt as to whether the defendant was present
at the scene of the homicide, he is entitled to
the benefit of such doubt and should be acquit-
ted. But we think that the subsequent portion
of the charge, from its phraseology, may have a
tendency to mislead the jury, and to obliterate
from their minds the idea, that a reasonable
doubt, arising out of the evidence, as to the
locus of the prisoner at the time of the killing,
must work an acquittal. We think that the
evidence in support of an alibi need not be ab-
solutely clear; it is sufficient if there is, enough
to produce in the minds of the jury a reasonable
doubt as to the presence of the prisoner at the
scene of the killing. Neither do we think that
the evidence of an alibi should in any case make
it absolutely impossible for the prisoner to be
present at the killing; it is sufficient if it rais-
es a reasonable doubt in the minds of the jury,
from all the circumstances, whether he was
present or not. 1 Greenleaf on Evidence, § 81b;
State vy. Waterman, 1 Nev. 548; Turner v. Com-
monwealth, 86 Penn. St. 54; People v. Fong
Ah Sing, 64 Cal. 253; Landis v. State, 70 Ga.
651; Pollard v. State, 53 Miss. 410; Means
v. State, 10 Tex. Ct. App. 16; State v. Lewis,
69 Mo. 92; People v. Pearsoll, 50 Mich. 233;
Houston v. State, 24 Fla. 356, 5 South. Rep.
48; Kerr on Law of Homicide, §§ 512, 522.”

I think the instruction in relation to flight
is erroneous and harmful; because it charges
on the effect of the testimony. The court
said:

“The fact of flight is a circumstance to be con-
sidered by the jury as tending to increase the
probability of the defendant being the guilty
person.” (The italics are mine.)

Here we have a statement by the court
that there is a “probability” of the prison-
er’s guilt, which the testimony as to his
flight tends to increase.

I think the court erred in admitting in evi-

mitted by the person that claims he was not-


234 86 SOUTHERN REPORTER (Fla.

trial of the same cause, and an opportunity
was afforded to the defendant to fully cross-
examine the witnesses, the testimony given
by witnesses on such former trial may be
proved in the manner provided by law at a
subsequent trial as secondary evidence, if it
is satisfactorily shown that the witnesses
have since died, become insane, left the juris-
diction of the court, or are sick and unable to
attend or to testify; and the admission of
such evidence under the circumstances does
not violate the organic right of an accused to
meet the witnesses against him face to face.
Hawkins v. United States, 8 Okl. Cr. 651,
108 Pac. 561; 2 Wigmore on. Evidence, §§
1397, 1406, pp. 1754, 1766.

The constitutional right to meet witnesses
face to face is thus explained in 1 Greenleaf
on Evidence, § 163f:

“The. constitutional clause purported merely
to adopt the general principle of the hearsay
rule, that there must be eonfrontation—i. e.,
the power of cross-examination—for infrajudi-
cial witnesses; but it did not purport to enu-
merate all the exceptions and limitations to
that principle. There were then a number of
well-established exceptions, and there . might
be others in the future; the Constitution in-
dorsed the general principle, subject to these
exceptions, merely naming and describing it
sufficiently to indicate the principle intended,
just as the brief constitutional sanction for
trial by jury did not attempt to enumerate the
classes of cases to which that form of trial
was appropriate, nor the precise procedure
involved in it, and has always been construed

as not absolute and universal in effect, but as,

subject to the limitations and unessential vari-
ations understood to accompany that institu-
tion. Thirdly (perhaps only as another aspect
of the preceding reason), the constitutional re-
quirement is limited to the mode of taking tes-
timony at the trial; it does not prescribe what
kinds of testimony shall be given infrajudi-

cially, but only what mode of procedure—i. |°

e., not a secret or ex parte examination—shall
be followed for such testimony as by the ordi-
nary and existing law of evidence is required
to be given infrajudicially. Such is the better
reasoning accepted by most courts as here ap-

plicable. It follows that the constitutional re-.

quirement of confrontation is not violated by
dispensing with the actual presence of the wit-
ness at the trial, if he has already been sub-
ject to cross-examination, or if his assertions
are received under some recognized exception
to the hearsay rule.” ,

See 2 Wigmore, Ev. § 13897, and notes.

As the constitutional right of the accused
to meet the witnesses against him face to face
was under the authorities satisfied when he
met the witnesses and was accorded full op-
portunity to cross-examine them on the for-
mer trial, the circumstances under which and
the means by which evidence of the testimo-
my of the absent witness given at the for-
vmer trial may be adduced at the subsequent
trial as secondary evidence is regulated by

the statute; and the circumstances of this
case bring it within the statute, both as to
the conditions under which and the means by
which the secondary evidence was adduced.

Even were we to concede that the testi-
mony of a witness at a former trial could
only be given under the conditions imposed
by the common law, and these conditions
were continued by the Constitution, such
conditions arise when the witness is dead,
or insane, or beyond the jurisdiction of the
court, or unable to travel, we think the evi-
dence showed that the absent witnesses came
under the last-mentioned class of cases as
shown by the testimony before. the court as
to their condition, and that this class is
among those included in the rules of the
common law on the subject. -

[12] The verdict is fully sustained by the
evidence. Affirmed. :

WHITFIELD and ELLIS, JJ., concur.
WEST, J., disqualified.

BROWNE, ©. J. (dissenting). I eannot con-
cur in the conclusion reached by the majori-
ty of the court in this case, or the reasons
given for it. . . i

I think the charge on alibi was harmful
error. The court, after correctly charging
the law in relation to. the defense of an alibi,
destroyed its effect and changed the rule
by giving this: erroneous instruction:

“The defense of an alibi is, of all other tes-
timony, the most decisive when duly substantiat-
ed; but the evidence adduced in support. of it
requires to be minutely considered, and must
be such ag to render it impossible that the crime
could have been ,committed by the party who
claims that he was not present and could not
be guilty.as charged,” , .

The rule in relation to the defense of an
alibi is: acd ed tERey

“Tt ig enough if the proof adduced in support
of it,.viewed in connection with’ all the testi-
mony in the case, creates such a probability of
its own truth as to engender:a reasonable. doubt
of the truth of the charge upon which the de-
fendant is arraigned; and this might be-effected,
even though the jury did not feel positively as-
sured of the veracity of the witnesses or of the
correspondence of time. If, looking to all the
evidence, inculpatory and exculpatory, they en-
tertain a reasonable doubt of the prisoner’s pres-
ence at and participation in the crime, they
should acquit.” (The italics are mine.) 8 Rul-
ing Case Law, 224; Prince vy. State, 100 Ala.
144, 14 South. 409, 46 Am. St. Rep. 28; Carl-
ton v. People, 150. Ill, 181, 37 N. E. 244, 41
Am. St. Rep. 346; French y. State, 12 Ind. 670,
74 Am. Dec. 229; State v. Hardin, 46 Iowa,
623, 26 Am. Rep. 174; State v. Ardoin, 49 La.
Ann. 1145, 22 South..620, 62 Am. St. Rep. 678;
Pollard v. State, 58 Miss. 410, 24 Am. Rep.
703; State y. Campbell, 210 Mo. 202, 109 S.
W. 706, 14 Ann. Cas. 403 ; State v. McClellan,
23 Mont. 532, 59 Pac. 924, 75 Am, St. Rep. 558;


236 86 SOUTHERN. REPORTER | (Fla.

dence, over the objection of the defendant, the
testimony of Harrison Davis and Saphronia
Holmes, given at a former trial of the case
and incorporated in the bill of exceptions.

Prior to 1893, the evidence incorporated
in a bill of exceptions could not be used as
evidence upon a subsequent trial of the same
case. Then was enacted chapter 4135:

“That in case any judgment at law rendered
by a circuit court shall be reversed and a new
trial awarded, and it be made to appear to the
satisfaction of the court that any evidence used
at the former trial, whether oral or written,
and incorporated in the bill of exceptions, can-
not be had, then the bill of exceptions taken at
the previous trial may be used as evidence upon
any subsequent trial of the case, as to any mat-
ter in issue at the former trial.”

There is internal evidence in the act it-
self that it was not intended to apply to
criminal cases. At the time it was passed
the Constitution authorized the creation of
criminal courts with jurisdiction of all crim-
inal cases not capital, and where such crim-
inal courts were estavlished the jurisdiction
of circuit courts in criminal cases was limit-
ed to those not cognizable by inferior courts.

The limitation in the statute of the use of
evidence incorporated in a bill of exceptions
to cases tried in the circuit courts proscribed
the use of such testimony in any criminal
case not capital, in counties where criminal
courts were established. If, therefore, this
act was intended to be applicable to criminal
cases, we would have the remarkable, if not
the monstrous, proposition that a man on
trial for his life might be convicted and exe-
cuted on a transcript of the testimony used
on a former trial, but a person on trial for
an offense less than capital could only be
convicted on testimony given in his presence
in open court,

I am not commenting upon the power of
the Legislature to make this discrimination,
if it had the power to make the law apply
to criminal cases at all, but to show from its
extreme unreasonableness that it was not
the legislative intent for the law to apply to
criminal cases.

It is true that in 1909 this act was amend-
ed, and the words “any court of the state of
Florida” substituted for “a circuit court’;
but, if the original act did not apply to crim-

inal cases, this amendment would not have,

that effect. 62}

Examining further into the language of the
statute, we find that in both the acts the
use of testimony incorporated in a bill’ of
exceptions can only be used “in case any
judgment at law * * * shall be reversed
and a new trial awarded.” If the Legislature
meant to include criminal as well as civil
cases, the wards “at law” are superfluous.
We must, however, give weight to every word
in the statute, and it is apparent that the
purpose of the Legislature in using the words

“at law” was to make a distinction between
a class of cases where the testimony con-
tained in a bill of exceptions might be used,
and those when it should not be used. Cer-
tainly the words “at law” were not intended
to distinguish common-law from chancery
causes, because the word “judgment” of it-
self makes that distinction. . So, also, of the
words “new trial awarded,” and “bill of ex-
ceptions,” as none of these is applicable to a
chancery cause. Therefore, had the Legisla-
ture intended to include criminal cases, it
would have omitted the words “at law,”
which are words of limitation.
The distinction between cases “at law”
and “criminal cases” is made in the Consti-
tution. In section 5, art. 5, we find:

“The Supreme Court shall have appellate ju-
risdiction in all cases at law and in equity orig-
inating in circuit courts, * * *® and in all
criminal cases originating in the circuit courts.”

Section 11 of article 5 provides:

“The circuit courts shall have exclusive orig-
inal jurisdiction in all cases in equity, also in
all cases at law * * * and of all criminal
cases not cognizable by inferior courts.”

Section 17 of the same article ordains:

“The county judge shall have original juris-
diction in all cases atlaw * * * and of such
criminal cases as the Legislature may pre-
scribe.”

Section 18 of the same article:

“The Legislature may organize, in such coun-
ties as it may think proper, county courts which
shall have jurisdiction of all cases at law in
which the demand or value of the property in-
volved shall not exceed $500.00, * * ® and
of misdemeanors.” i

Section 22 of the same article:

“In each county where there is no county
court, as provided for in section XVIII of this
article, the justices of the peace shall have ju-
risdiction in cases at law in which the demand
of value of the property involved does not ex-
ceed $100.00 * * .* and in such criminal cas-
om except felonies, as may be prescribed by
aw.” .

Another indication that the provisions of
this act were to apply to civil and ‘not to
criminal cases is that, in referring to the
evidence that may be used at a subsequent
trial if incorporated in a bill of exceptions,
the act says that such. testimony may be so
used, “whether oral or written.” In civil
causes the testimony may ‘be either: oral or
by depositions in writing. “As: this was not
then permitted in criminal cases, it is fur-
ther internal evidence of the intention of the
Legislature that the act should apply only tc
civil causes. nen jotielge if} 4
. The opinion says;:: iy galls

bey

OR me


BOLENDER v. SINGLETARY .

1559

Cite as 16 F.3d 1547 (11th Cir> 1994)

was concerned that much of Bolender’s back-
ground might, in fact, be viewed as aggrava-
ting rather than mitigating.!> Third, Bolen-
der’s attorney was aware of a “scouting re-
port” on the trial judge that suggested that
he was unsympathetic to generic character
pleas and generally favored the death penal-
ty. Finally, and perhaps most important,
Bolender’s counsel wanted to get the jury
deliberating on its sentence recommendation
as soon as possible because, as he explained
at the Rule 3.850 hearing, “after the guilt
phase of the trial when they came out several
jurors were teary-eyed when they read the
verdict of guilty.”

Based upon these calculations, Bolender’s
trial counsel elected to argue only the dispa-
rate and arbitrary treatment of Bolender to
the jury. As the Florida Supreme Court
found:

[Bolender’s counsel] stated that he knew
the mother and sister were willing to testi-
fy, but that, after checking gn the trial
judge’s reputation, he concluded that such
nebulous nonstatutory mitigating evidence
would have’ had little effect on the judge.
Therefore, he made the tactical decision
that a proportionality argument would be
the better strategy.

Bolender II, 503 So.2d at 1249. Moreover,
the same calculus explains why Bolender’s
attorney did not present additional mitigat-
ing circumstances to the judge after the
jury’s life recommendation; given the nature

family history’ may be a reasonable strategic
choice under the circumstances.” Lightbourne,
829 F.2d at 1025-26; see also Burger v. Kemp,
483 U.S. 776, 794-95, 107 S.Ct. 3114, 3126, 97
L.Ed.2d 638 (1987) (rejecting ineffective assis-
tance of counsel claim based on similar facts).

15. See, e.g., Lusk, 890 F.2d at 338 (explaining
that, given the ability of the prosecution to cross-
examine background witnesses, ‘‘such evidence
might, in fact, be aggravating rather than miti-
gating’ under some circumstances).

16. Bolender argues that previous decisions by
this court in which the failure to investigate and
introduce background evidence at the penalty
phase of a capital trial was held to be prejudicial
mandate the same holding in this case. We find
those cases factually distinguishable because Bo-
lender’s counsel did in fact conduct an investiga-
tion. See, e.g., Harns v. Dugger, 874 F.2d 756,

763 (11th Cir.1989) (finding constitutional viola-
tion where “‘counsel’s failure to present or inves-

of the potential testimony and information
about the judge’s predilections, he believed
that it would have done more harm than
good. Instead, trial counsel attempted to
capitalize on the jury’s swift and unanimous
recommendation because he believed that it
would make the greatest impression on the
court. See Bolender II, 503 So.2d at 1250.
As the district court concluded:

Counsel made the additional tactical deci-
sion to rely on the jury’s recommendation
and the disparity argument with the sen-
tencing judge. Such decisions did not ren-
der counsel deficient since they were made
deliberately, as part of a reasonable strate-
gy after full investigation.

Bolender, 757 F.Supp. at 1407. Contrary to
Bolender’s contention, trial counsel was not
idle or paralyzed into inaction. Under all the
circumstances, both with respect to the pen-
alty recommendation phase before the jury
and the sentencing phase before the judge,
we cannot conclude that the district court
was clearly erroneous in finding that counsel
made an informed and reasonable tactical
decision to exclude the mitigating evidence of
Bolender’s background. See Porter, 14 F.3d
at 559.

In numerous cases, this court has held that
similar strategic decisions not to introduce
mitigating evidence at the penalty phase of a
capital punishment trial did not constitute
constitutionally deficient assistance of coun-
sel.'6 In Francis v. Dugger, 908 F.2d 696

tigate mitigation evidence resulted not from an
informed judgment, but from neglect’), cert. de-
nied, 493 U.S. 1011, 110 S.Ct. 573, 107 L.Ed.2d
568 (1989); Porter v. Wainwright, 805 F.2d 930
(11th Cir.1986), cert. denied, 482 U.S. 918, 107
S.Ct. 3195, 96 L.Ed.2d 682 (1987).

Furthermore, a survey of those decisions find-
ing counsel's actions or omissions to be unrea-
sonable indicate a level of incompetence far
greater than that exhibited in this case. See, e.g.,
Horton, 941 F.2d at 1462 (concluding that coun-
sel “began to follow one path, based upon a
misinterpretation of the law, without ever evalu-
ating the merits of alternative paths’ when attor-
neys admitted during state habeas corpus eviden-
tiary hearing that they never investigated any
mitigating circumstances); Armstrong, 833 F.2d

at 1433 (concluding that failure to present back-
ground evidence was not strategic when trial
counsel's testimony at evidentiary hearing re-

vealed negligible preparation and investigation
for penalty phase); Magtll v. Dugger, 824 F.2d


1562

586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)
(plurality opinion).'® Hence, while a state
may list mitigating factors to be considered
in its death penalty statute, as Florida does,
it may not restrict the defendant to arguing
only those statutory circumstances.!® In
Hitchcock v. Dugger, 481 U.S. 398, 107 S.Ct.
1821, 95 L.Ed.2d 347 (1987), the Court held
that, under the Florida procedure for trying
capital cases, an advisory jury may not be
prohibited from considering relevant nonstat-
utory mitigating circumstances in making its
sentencing recommendation, and that the
judge must consider such mitigating evidence
in determining an appropriate sentence. Ac-
cordingly, a Hitchcock violation is based upon
a Lockett violation, and “Hitchcock has
breathed new vitality into claims based on
the exclusion of non-statutory mitigating fac-
tors” from the sentencing process in Florida
capital cases. Hargrave v. Dugger, 832 F.2d
1528, 1533 (11th Cir.1987), cert. denied, 489

18. Taken together, these cases stand for the
proposition that a defendant in a capital case has
the right to present any relevant and competent
mitigating evidence to the sentencer. Lockett
was the foundation of this line of cases and
established a bright-line rule: ‘‘the senténcer, in
all but the rarest kind of capital case, [can]ttot be
precluded from considering, as a mitigating fac-
tor, any aspect of the defendant's character or
record and any of the circumstances of the of-
fense that the defendant proffers as a basis for a
sentence less than death.” 438 U.S. at 604, 98
S.Ct. at 2964-65. The two later cases merely
refined the Lockett principles, making it clear
that evidence of good behavior while incarcerat-
ed awaiting trial, Skipper, 476 U.S. at 4, 106
S.Ct. at 1671, and evidence of family history and
emotional disturbance, Eddings, 455 U.S. at 113-
116, 102 S.Ct. at 876-77, could not be excluded
from capital sentencing hearings.

19. Fla.Stat.Ann. § 921.141(6) (West 1985) pro-
vides that:
Mitigating circumstances shall be the follow-
ing:

(a) The defendant has no significant history
of prior criminal activity.

(b) The capital felony was committed while
the defendant was under the influence of ex-
treme mental or emotional disturbance.

(c) The victim was a participant in the de-
fendant’s conduct or consented to the act.

(d) The defendant was an accomplice in the
capital felony committed by another person
and his participation was relatively minor.

(e) The defendant acted under extreme du-
ress or under the substantial domination of
another person.

16 FEDERAL REPORTER, 3d SERIES

U.S. 1071, 109 S.Ct. 1353, 103 L.Ed.2d 821
(1989).

[23] In light of these cases, Bolender al-
leges two errors relating to the deficient
consideration of nonstatutory mitigating evi-
dence during the penalty phase of his trial.?°
First, Bolender claims that his counsel felt
constrained in developing and presenting
such nonstatutory mitigating evidence at the
sentencing hearing.*! Second, he contends
that the sentencing judge and the Supreme
Court of Florida both failed meaningfully to
consider nonstatutory mitigation. These dis-
tinct, albeit related, claims were often con-
fused during the argument of this case. We
consider each in turn.

A.

Bolender contends that his counsel at trial
was constrained in presenting nonstatutory
mitigation evidence in violation of Lockett

(f) The capacity of the defendant to appreci-
ate the criminality of his conduct or to con-
form his conduct to the requirements of law
was substantially impaired.

(g) The age of the defendant at the time of
the crime.

20. Bolender was not barred from raising these
claims in the state collateral proceedings since
the Supreme Court's ruling in Hitchcock repre-
sents a sufficient change of law so as to defeat
the application of a procedural bar. Thompson
v. Dugger, 515 So.2d 173, 175 (Fla.1987), cert.
denied, 485 U.S. 960, 108 S.Ct. 1224, 99 L.Ed.2d
424 (1988). Accordingly, the Florida courts con-
sidered these allegations on the merits. See Bo-

_ lender ITT, 564 So.2d at 1058.

21. The more standard Hitchcock claim would
have been that the instruction given in this case
limited the jury’s consideration of mitigating cir-
cumstances to those specified in the statute. In
several cases, we have found Hitchcock viola-
tions where the trial court’s jury instructions
were almost identical to those given in Hitch-
cock. See, e.g., Jackson v. Dugger, 931 F.2d 712,
716 (lith Cir.), cert. denied, —- U.S. —~—, 112
S.Ct. 452, 116 L.Ed.2d 470 (1991); Aldridge v.
Dugger, 925 F.2d 1320, 1328-29 (11th Cir.1991);
Hargrave, 832 F.2d at 1534. The instruction on
mitigation given in the instant case was substan-
tially the same as charge given in Hitchcock.
Any such error was rendered harmless in this
case, however, when the advisory jury returned a
recommendation of life imprisonment.


1560

(llth Cir.1990), cert. denied, —— U.S. —~,
111 S.Ct. 1696, 114 L.Ed.2d 90 (1991), for
example, we rejected a habeas petitioner’s
argument that his counsel had rendered inef-
fective assistance during the penalty phase of
the trial. Trial counsel had “made a decision
to deliver a highly impassioned, emotional
argument which, rather than focusing on
Francis, emphasized the Easter season, for-
giveness, compassion, and the value of life.”
Id. at 703. The court concluded:

We cannot say that this strategy was un-
reasonable given counsel’s reasoned belief
... that the trial judge would follow a life
recommendation. As did the district court
and the Florida Supreme Court, we find it
significant that Francis’ trial counsel ob-
tained a life recommendation from the
jury, following brief deliberations, where
two prior juries had recommended
death....

Id. See also Porter, 14 F.3d at 558 (explain-
ing that counsel omitted presentation of fami-
ly background to shield jury from defen-
dant’s prior criminal activity); Stevens, 968
F.2d at 1083-84 (noting that counsel’s deci-
sion was reasonable given fear “that present-
ing mitigating evidence would backfire and
reinforce any negative jury perceptions re-
garding Stevens’ intent or relative culpabili-
ty”); Tafero v. Dugger, 873 F.2d 249, 251
(11th Cir.1989) (defense counsel’s actions in
not introducing mitigating circumstances did
not constitute ineffective assistance because
they resulted from deliberation and tactical
choices), cert. denied, 494 U.S. 1090, 110
S.Ct. 1834, 108 L.Ed.2d 962 (1990). Bolen-
der’s counsel made a similar decision, elect-
ing to plead for mercy and to argue the
dubious equity of sentencing one codefendant
to death while allowing the state to select

879 (11th Cir.1987) (holding that performance of
counsel whose first involvement with the case
came on the morning of trial constituted ineffec-
tive assistance); Elledge, 823 F.2d at 1445 (hold-
ing that ‘‘counsel’s total failure to investigate
possible witnesses, both expert and lay, when he
was aware of Elledge’s past and knew that miti-
gation was his client’s sole defense, was unpro-
fessional performance’’).

Here, by contrast, counsel investigated possible
sources of mitigating evidence, weighed the effi-
cacy of presenting that evidence, and made a
reasonable tactical decision not to present that
testimony. Given that this strategy had succeed-

16 FEDERAL REPORTER, 3d SERIES

another codefendant for life imprisonment
through a plea agreement.

It is elementary that, “[t]he benchmark for
judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the
proper functioning of the adversarial process
that the trial cannot be relied on as having
produced a just result.”, Strickland, 466 U.S.
at 686, 104 S.Ct. at 2064. The record in this
case reflects that counsel’s performance, de-
spite the outcome, was not outside the wide
range of professionally competent assistance.
Perhaps other reasonable lawyers trying this
case would have chosen to introduce the
background evidence in mitigation, but Bo-
lender’s lawyer was not constitutionally inef-
fective for making the professional judgment
to rely on the disparate treatment argument
instead. A court reviewing ineffectiveness
claims must “address not what is prudent or
appropriate, but only what is constitutionally
compelled.” United States v. Cronic, 466
U.S. 648, 665 n. 38, 104 S.Ct. 2039, 2050 n. 38,
80 L.Ed.2d 657 (1984).

B.

,. [18-20] Furthermore, even if we were to
hold that trial counsel rendered ineffective
assistance by not introducing the mitigating
evidence Bolender urges, we nonetheless
would still affirm. Bolender has not satisfied
the prejudice requirement of Strickland,
namely that “there is a reasonable probabili-
ty that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have
been different.” 7 466 U.S. at 694, 104 S.Ct.
at 2068. When challenging the imposition of
the death penalty, “the question is whether
there is a reasonable probability that, absent
the errors, the sentencer—including an ap-
pellate court, to the extent it independently

ed with the jury, it was not unreasonable for
counsel to pursue the same approach with a trial
judge known to respond unfavorably to general
character evidence.

17. Like the performance prong, the prejudice
component of the inquiry presents a mixed ques-
tion of law and fact for our review. A court
deciding an ineffective assistance claim may
elect to address either the performance or the
prejudice prong first. See Strickland, 466 U.S. at
697, 104 S.Ct. at 2069.


+
e +

BOLENDER v. SINGLETARY

1561

Cite as 16 F.3d 1547 (11th Cir. 1994)

reweighs the evidence—would have conclud-
ed that the balance of aggravating and miti-
gating circumstances did not warrant death.”
Id. at 695, 104 S.Ct. at 2069; see also Messer
v. Kemp, 760 F.2d 1080, 1088 (11th Cir.1985),
cert. denied, 474 U.S. 1088, 106 S.Ct. 864, 88
L.Ed.2d 902 (1986).

Bolender’s argument on this point is predi-
cated upon a misunderstanding of Florida
override law. The Florida jury override
standard enunciated in Tedder v. State, 322
So.2d 908, 910 (Fla.1975), states that “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 per-
son could differ.” As alternatively formulat-
ed, an advisory jury’s life recommendation
“should not be overruled unless no reason-
able basis exists for the opinion.” Richard-
son v. State, 437 So.2d 1091, 1095 (Fla.1983).

Bolender repeatedly contends that had
any mitigating evidence been introduced at
the penalty phase, either before the jury or
before the court at sentencing, then the trial
court would not have been entitled to over-
ride the advisory jury’s life recommendation.
In granting relief during Bolender’s first
Rule 3.850 proceeding, the trial court based
its decision upon the same argument: “(t]he
law of the State of Florida is that a death
sentence may not be imposed when any evi-
dence of mitigating circumstances is present-
ed.” The Florida Supreme Court reversed,
however, explaining the trial court’s error:

That the mere presentation of mitigating
evidence precludes imposition of the death
penalty is not and never has been a correct
statement of this state’s law. In determin-
ing if death is an appropriate penalty the
sentencing judge must weigh any aggrava-
ting circumstances against any mitigating
circumstances.

Bolender II, 503 So.2d at 1249. We have
also rejected this contention when dealing
with habeas corpus petitions from Florida
death row inmates, “abjur[ing] any implica-
tion therein that the existence of any mitigat-
ing evidence in the record, whether statutory
or not, means that a trial judge cannot con-

stitutionally override a jury recommendation
of life.” Lusk, 890 F.2d at 341 n. 8. It is

well established that, contrary, to Bolender’s
position,.“the mere presence of mitigating
evidence does not automatically provide a
reasonable basis for the jury’s recommenda-
tion.” Francis, 908 F.2d at 704.

[21] As noted above, the proper inquiry
when a defendant challenges the propriety of
a death sentence is whether, absent counsel’s
allegedly inadequate performance, a reason-
able probability exists that the balance of
aggravating and mitigating circumstances
did not warrant death. We agree with the
district court’s conclusion that the prejudice
component of the Strickland standard was
not met in this case. See Bolender, 757
F.Supp. at 1408 (holding that the proffered
changes in strategy would not have altered
trial court’s judgment). The Florida Su-
preme Court upheld the trial court’s findings
on all but two of the aggravating circum-
stances. Given the details of this case, in-
cluding among other things the fact that
Bolender was twenty-seven years old at the
time of the murders, “evidence of a deprived
and abusive childhood is entitled to little, if
any mitigating weight” when compared to
the aggravating factors. Francis, 908 F.2d
at 703. Indeed, “we find that any mitigating
effect does not begin to tip the balance of
aggravating and mitigating factors in favor of
[a] petitioner,” who has “simply failed to
show that counsel’s performance was so defi-
cient during the sentencing phase that this
court cannot rely on the result as being just.”
Lightbourne, 829 F.2d at-1026. We now turn
to Bolender’s related claims concerning the
presentation and consideration of nonstatuto-
ry mitigating circumstances during the pen-
alty phase of his trial.

Il.

[22] In a series of cases, the Supreme
Court has held that the Eighth Amendment,
as applied to the states through the Four-
teenth Amendment, requires that a sentencer
in a capital case not be prevented from con-
sidering any aspect of a defendant’s charac-
ter or record as a mitigating circumstance.
Skipper v. South Carolina, 476 U.S. 1, 106
S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings v.
Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71
L.Ed.2d 1 (1982); Lockett v. Ohio, 488 U.S.


very night of her wedding when Peter
had treated her very much in the same
manner as he had treated the woman
with whom he had had an affair.
Ursula had been a virgin and the
brutal, violent rape had left her torn
and bleeding. Totally inexperienced in
sexual manners, she had assumed that
this was the normal course of a
marriage and had never realized that
any gentler form of sexual contact was

possible until she had met. Rolf:

Zimmermann.

Peter, it seemed, had been not only
perverted in his sexual habits, but as
harsh and demanding otherwise. He
had allowed Ursula no money at all.
She had had to hand over every penny
of -her earnings at the hotel and,
although he allowed her to drive their
Golf GTI back and forth to work for
appearances sake, he checked the
gasoline consumption and the mileage
indicator every evening upon her
return to see that she had not made
any detours. He also examined the
tires to see if she had, perhaps, driven
anywhere other than on the paved
streets.

Sexually, Peter had been abnormally
active, requiring sex from her three
and four times a day and always in
the same manner, a veritable rape of
which the sexual contact lasted only a
few seconds.

Peter had not liked to see her naked
and they had only had sex when she
was fully dressed, but with her
underwear removed and the rest of her
clothing disarranged. He had invaria-
bly slapped her during these sessions
and usually had beaten her in what he
called a scientific manner. By this he
meant that it- left no marks and,
indeed, it did not. It was, however,
excruciatingly painful.

This was precisely what the other
girl had reported in independent
testimony and there were many other
common points of reference, including
the strange, glazed look in Peter’s eyes
when he became aroused.

Rather incredibly, Ursula had

apparently never realized that any

other marriage was any different than
hers until some time in August of 1982.
She had come home one evening to
find Peter waiting for her in the
garage. Examining the Golf carefully,
he came to the conclusion that she had
put 40 miles on it which she could not
explain. She would, therefore, have to
be punished.
Ursula could explain the 40 miles.
She had gone to visit her mother, but
as this was also forbidden, it would
not save her from the punishment.

His eyes taking on the strange,
glazed look with which she was so
familiar, Peter had seized her, pulled
her skirts up around her waist, torn
away her underpants and placing her
buttocks on the still uncomfortably hot
hood of the Golf GTI had raped her
right in the garage.

The following day, barely able to
sit down at her job, Ursula had been
asked by Rolf Zimmermann who was
staying at the hotel if she would care
to share a drink with a lonely man who
knew not a soul in the town. She had
accepted and completely overcome by
Zimmermann’s gentle, kindly manner,
had gone to bed with him the following
day.

This had been a revelation for
Ursula Eckwert. As she had told
Zimmermann frankly, she had had no
idea that sex could be such a gentle
and pleasant thing. She had, she said,
suffered through the 16 last years of
her life for nothing.

This was all the testimony that
Zimmermann had to offer. Ursula had
not discussed the murder with him
either before or after. He still did not
think that she could have done it.

She had, though and, taken into
custody and charged, promptly broke
down and confessed. It had been more

than flesh and blood could stand, she
said, and on the evening of February
25th, she had simply poured half a
bottle of weed killer into her hus-
band’s soup, adding several sachets of

tranquilizing powders for good

measure.
Peter had eaten the soup and ten
minutes later had fallen forward on

the table unconscious. She had gone °

to the bathroom and had brought back
a bottle of ether, poured the liquid
over his napkin and held it over. his
nose and mouth until he stopped
breathing. She had then gone to bed

and slept the best night’s sleep that

she had ever had in 16 years. |

There was so much evidence of what
Ursula Eckwert had suffered during
her married life that there was no

a

question of the presence of extenuating —

circumstances. On the other hand, as
the inspector had noted, there was
always the possibility of divorce and

on February 10th, 1984, a jury found

her guilty of homicide with extenuating |

circumstances and sentenced her to
five years imprisonment. Rolf Zim-

mermann said that he will wait for her

and, under.normal circumstances, she
should be released in about two
years. . *

He Cooled His Lust With A Corpse

(continued from page 15)

Webster into an interview room. “I’m
going to get a cup of coffee; can I bring
you one?’’ he asked, trying to put her
at ease. She nodded affirmatively.
Scoggins got the coffee and then began
the interview.

Webster gave the name of her
boyfriend as Anthony Bertolloti, 31,
and named a street in downtown
Orlando where, she said, the two
rented an apartment. ‘‘The apartment
is in a house, not in a regular apart-
ment building,’’ she explained.
Scoggins took special interest in the
address because it was only about a
mile away from the downtown apart-

ment: building where Mrs. Ward’s

Ford Torino station wagon had been
found.

‘““Okay,’”’ he said, when the initial
formalities were over. ‘‘Why don’t you
just go ahead now and tell me the
whole story in your own way?”’

‘‘T hope I haven’t done the wrong
thing by coming here,’’ Webster said
somewhat hesitatingly, ‘‘but I just
happen to remember Tuesday, Sep-
tember twenty-seventh, the day of the
murder, very well. It was the day I had

to get some money to pay the rent.
Anthony didn’t have any. He left the
apartment early to go to his job.”’

‘‘He has a job then?’’ Scoggins :

asked.

‘‘At a country club. He works on
the grounds there, laying sod or
digging up dirt or something like
that.’? Webster named the country
club.

‘‘That’s a pretty good distance from
where you live,’’ Scoggins said. “‘How
does Anthony get there? Does he have
a-car?’’

‘‘No. Another guy who works.out
there picks him up every morning.

Anthony walks a couple of blocks up ©

‘the street and meets him.’’.

“‘Okay, go on.”’ :

‘*T went out for awhile afte
Anthony left. I got back to the house
around eleven o’clock and was
surprised to see that Anthony was.
already back there, sitting on the
doorstep, waiting for me. I said,

‘What are you doing here?’’ and he i.

said, ‘‘I already went out to work and

- (continued on next page)

35

aA

‘He Cooled His Lust With A Corpse

(continued from page 35)

made some money. I missed my ride
up to the country club, so I went to
that temporary job place and got some
work. See, I made some money.”’

‘He showed me some bills. I don’t
know how many; they could have
amounted to anything from twenty
dollars to fifty. I asked him where he
made this money, and he said the
temporary job place sent him up to a
warehouse in Lockhart. I thought that
was kind of strange. I know enough
about the temporary job business that
you don’t go out at six or seven o’clock
in the morning and be home with
money in your pocket at eleven
o’clock. I felt he was lying to me but
didn’t say no more about it at the
time.”’

Webster added that she then noticed
that Anthony had changed clothes but
didn’t say anything about that at the
time, either. ‘‘That night,”’ she
continued, “‘instead of going to bed

at our regular time, Anthony speci-

fically wanted to stay up to watch the

eleven o’clock news. He really paid

close attention to the news about the
murder. I said to him, ‘‘Look here.
That murder is up in Rosemont; that’s
not too far from Lockhart where you
worked today.”’

“‘What was his reaction to that?’’
Scoggins asked.

‘He just acted sort of strange, just
shook it off. And that was the end of
it.’? Webster stopped talking.

‘Is that it? Is that what you’re
basing your suspicion that he may have
been involved in the Rosemont murder
on?’’

‘‘No. There’s more. Anthony is an
extremely highly sexual man; he has
to have sex several times a day. He
didn’t want sex that night and, all of
a sudden, for the next, few days, he
didn’t want sex any more at all. He
acted like he didn’t want to gét around
me. This was very unusual because
he’s a very demanding sexual part-
ner.”’

‘“‘Okay,’’ Scoggins said, ‘‘what
next?’’

‘“*The next morning, which was
Wednesday, I was going to do laundry,
and I remembered about the clothes.
I asked him where was the clothes he
wore to work the previous morning.
He said he didn’t know, that they were
around somewhere. I thought that was
strange. We’re poor people and we
don’t have enough clothes so that
you can afford to just leave them
36

around somewhere and not remember
where it is. That got me to really
thinking. I went to the temporary job
place and found out that they sent
Anthony to a warehouse job in
Lockhart like he said. But what he
didn’t say was that he walked off the
job no sooner than he got there and
the agency had to send up another man
to replace him. Mind you-now, I don’t
know for sure that Anthony had
anything at all to do with the Rose-
mont murder; all I know is he’s been
acting funny since it happened.”
Scoggins taped Webster’s statements

then drove her home. The investigator ~

knew that Webster’s story did not give
him probable cause to arrest Bertolloti,
but it certainly put him in the area of
the crime at the time the crime was
committed. And the fact that Mrs.
Ward’s station wagon was found only
a mile or so from where Bertolloti lived
was significant, too.

Scoggins went to check with the job
agency. Records there verified that the
company had sent Bertolloti to a
warehouse job in Lockhart and that,
shortly afterward, had had to send a
replacement. The man who drove
Bertolloti and had to make a second

trip with a man to replace him said

that on his way back from the second
trip, he saw Bertolloti walking down
the road.

The driver said, ‘‘I thought he
needed a ride, so I stopped and told
him I was sorry I couldn’t pick him
up because it would probably make
the manager at the agency mad and I
might even lose my own job if I did.
He said that was okay and walked on.
He was heading toward the Rosemont
section, which is about a mile to a mile-
and-a-half from the Lockhart site.”’

Later on Monday afternoon, Scog-
gins went to the job site in Lockhart
and talked to the warehouse manager,
who also verified he’d had to request
a replacement for Bertolloti.

Back at headquarters, Scoggins
asked Investigator Dave Smith to get
Bertolloti’s fingerprints somehow
from somewhere and to find out
whether the possible suspect had an
arrest record. ‘

The following morning, Tuesday,
Bernice Webster again phoned Inves-
tigator Scoggins and again sounded
highly nervous. She said she’d con-
fronted Anthony with the fact that

‘he'd lied to her. ‘‘I told him,”’ she said,

“that I knew he hadn’t worked at the

Lockhart-job on Tuesday, September
twenty-seventh, and I wanted to know
where he was.”’

“What did he say to that?”’ Scoggins
asked.

‘“‘He didn’t say anything. So then I
told him I happened to know the police
wanted to question him about the,
Rosemont murder. He got very angry
and left. He didn’t take none of his
belongings, though. They’re still
here.

“I thought he might have gone to
work at his regular job, but I tele-
phoned the country club and he wasn’t
there. I’m worried. I shouldn’t have
talked to you yesterday. Anthony
probably didn’t have anything at all
to do with killing that woman.”

Scoggins sensed that Webster was
having second thoughts about turning
her boyfriend in. ‘‘She’s figured out,
or someone had told her,”’ he rationali-
zed, ‘‘that if Bertolloti is involved in the
crime, he could go to prison for a long,
long time; and if he actually committed
the murder, he could be sentenced to
death in the electric chair. In either
case, he would undoubtedly be out of
her life forever.”’

In the hope of getting information
as to Bertolloti’s present whereabouts,
Scoggins went to the country club,
where he located and talked to the
person who regularly drove Bertolloti
to that job. That conworker said that
when he picked Anthony up earlier
that morning, Anthony had asked to
be taken to a house in a neighborhood
where he and Bernice used to live. ‘“He
said someone there owed him money,”
the man explained. ‘‘He got out of the
truck. I waited awhile; but he didn’t
come back, so I just drove on to
work.’’

Scoggins next drove to the Webster
apartment, where Webster gave him
a pair of shoes she said Anthony had
worn the day he was supposed to have
worked at the Lockhart warehouse.

She appeared nervous and said she had:

no idea as to where Anthony might
have gone.

The investigator returned to head-
quarters and put the shoes into
evidence. He then went to his desk
where he found a report on Bertolloti’s
various arrests. It had been compiled
from police records and circuit court
files in Dade County, Florida, and in
the neighboring State of Georgia,
Bertolloti had been arrested for, and
hdd confessed to, two crimes in Dade
County and had been convicted of.
four felonies in Georgia. Scoggins

(continued on next page)

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spent most of the rest of the day
investigating the circumstances under
which the Dade County arrests had

‘been made. He learned:

In 1978, Bertolloti — then known
as Larry Jackson — was arrested near
Homestead, in South Dade County,

on a charge of attempted first-degree -

murder. A grilfriend living with him
told police that on May 2nd, she was
moving out of his apartment. “‘J ack-
son,’’ she said, didn’t want her to leave
and pulled a knife on her. She said she
tried to talk him into putting the knife
down, but he refused. When she
attempted to walk out of the apartment,
he stabbed her in the head and back.
She survived and managed to call
police. The attempted first-degree
murder charge was reduced to aggra-
vated battery; adjudication was
withheld and ‘‘Jackson” was placed

on 10-year probation.

In 1979, Bertolloti — then using the
name of Anthony Jackson — was
arrested on a charge of attempted
sexual battery and burglary of a
structure. In Miami, on July 13th, he
knocked on the door of a 21-year-old
deaf mute who let him into the
apartment when he handed her a note
saying he had come to read the electric
meter. Once inside, he pushed the
woman into a chair, ripped her T-shirt,
pointed to his groin and pounded his
fist into his other palm to indicate he
was going to have sex with her. The
woman escaped.

He was sentenced to six years in this
case and, at the same time, to six years
in the earlier aggravated battery
conviction on which adjudication had
been withheld. Bertolloti served only
a few years before being released on

five years’ probation. On reporting to
the Dade County probation office to
be assigned to a supervisor, he was told
to await his turn in the lobby. When
his turn came around and he was
called, he wasn’t there. A warrant for
his arrest was issued in July 1982; it
was still outstanding.

The nature of the two Dade County
crimes, coupled with Bernice Web-
ster’s suspicions, now made Scoggins
view Bertolloti as a number one
suspect in the killing of Carol Ward.
Still the investigator knew he did not
yet have probable cause to make an
arrest. Knowing that a waiting game
is often the best kind to play, he went
home and to bed.

At midnight, the ringing of the
telephone awakened him. A woman

(continued on page 45)

Kill A Beast—Save A Child

(continued from page 29)

young players that was scheduled for
the Marriott Hotel in downtown
Tucson, Arizona.

The tournament was a Sunday
morning in May of 1984. Between
matches, Michael and his friend, 11-
year-old Terry Altos, went fora walk.
They went several blocks before
stopping to rest at a small park on the
700 block of Stone Avenue.

It was pretty quiet Sunday morning,
with few pedestrians or cars on the
roads. The youths rested for a couple
of minutes and were about to return
to the hotel for the second match,
when a pickup truck screeched to a
halt. :

A burly man with a.beard and
glasses stuck his head out the window
and asked if they needed a lift. Michael
said sure and got in. Terry hesitated
and was forced in.

Pulling a gun, the driver snarled,
“‘You-try to escape and I will blow
your heads off.’’ He ordered them to
kneel down on the floor boards and
took off with a deafening squeal of ti-

res.

It was early Sunday morning, with
people in church or ‘grabbing a few
extra drinks. No one saw the gunman
or the truck.

A few hours after the abduction,
off-road enthusiasts David Bills and

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American Cancer Society.

Rudy Clemons hooked their ATCs
— three wheel, balloon tire motorcy-
cles — onto the back of the pickup
and drove to a place known as Wild
Burro Canyon, about 25 miles north-
west of Tucson. They joined up with
friends and spent the afternoon
indulging in their favorite pastime,
three wheeling through the desert on
the ATCs.

By 5:30 they were exhausted and
dehydrated from riding in the desert.
Their friends had already packed it in,
and the sun was riding low on the
horizon. In another two hours it would
be pitch dark and the blast furnace
heat of the desert would drop into the
chilly 40s. It was time to go.

The bikes were chained onto the
trailer and they were ready to head
back into town, when Clemons saw
something on the horizon. “‘It looks
like a kid,’’ Clemons said.

He had seen the kid — or some-
thing — about 150 yards out in the
desert but thought his eyes were.
playing tricks on him. Now, with the
sun on the rim of thé horizon, the
orange glow showed it was no horizon,
but a human figure. A kid. And he
was coming their way. -

Both men waited patiently. As the
kid got closer, they could see this was
no social call. The kid was in trouble.

‘You first looked at-him and could
tell he was in trouble,”” David Bills told
police. ‘‘Just by the way he was

looking and the way he was wandering
around.””

Terry Altos had been wandering in

the desert for the last three hours. He
was dirty and exhausted, his lips
covered with mucous and split com-
pletely open.

Bills and Clemons filled a cup with
ice water and watched as Terry sucked
it right down. After several refills, they
asked Terry what he was doing in the
desert and if he was in trouble or
needed help.

He was at first reluctant to tell them.
Then he did — and it about blew their
socks off. ,

“‘Come on, son,’’ Clemons said.
‘““You have to talk to police.”’

By dusk, Wild Burro Canyon
buzzed with activity. Led by Tucson
Chief Peter Ronstadt, uniformed and
volunteer police officers searched the
desert sands for the missing Michael
Perry. They were assisted by members
of the Pima County Search and Rescue
unit and used tracking dogs from the
Fort Grant Training Centers.

During the search, police stopped a
car in the area just after midnight. The
man said he was going to help a friend-
whose truck was stuck in a wash.

The police accompanied the man to
a wash two miles from where the
search for Michael Perry was
underway and found a man sitting on
a rock. Down in the wash was a late
model Chevy pickup. -

He identified himself as William
Castaneda, 43. He said he didn’t know
anything about a search, and hadn’t
seen a little boy or anyone else in the
desert that afternoon. He said he had ~
been desert exploring when his pickup
became stuck and he called his friend. -

Meanwhile, the search continued.

(continued on next page)

37


=_~

by SAM ROEN
A: Bill Ward sat enjoying his breakfast with his wife

Carol early Tuesday m

there was no way for

orning, September 27, 1983,
him to know that before the

Florida sun would set on this day his world would be shat-
tered with death and tragedy more devastating than anything

he had ever known.
The pleasant Rosemont neighbor-
hood on the northeasterly side of
Orlando was just breaking into the
usual activities of the day when Bill
drove off to the Apopka Junior High

School where he taught history. There-

was nothing out of the ordinary in this
school day other than a few conferen-
ces and some discussions on extracur-
ricular activities.

By 3:45 Ward started to drive the
six miles back to Rosemont and his
home, but as he brushed his palm
across his head he was reminded that
he should have his hair cut. He wanted

to make a few stops in the shopping

‘mall, too, and he figured that he could

do all of it without causing Carol any
great concern with tardiness.

When he did reach his home, he
wondered about the garage door which
was open. There was no sign of Carol’s
car which he presumed was gone on
some necessary trip that she had to
make. But it was odd for her to be
gone when he got home. He checked

Jim Bishop, Crimeline officer
who took a phone call that
cracked the case.

BERTOLLOTI, Anthgny, black, elec. Florida July 27, 1990

Pet Oe ee EE

oes ees

26

STARTLING DETECTIVE MAGAZINE,

July,

Step by step by step... _

_-

i ie We

1986


4

parents had left her at the Baniszewski
home for safe-keeping, Sylvia Likens
was dead.

. Taking the witness stand in her own
defense when she went on trial six and
a half months later before Judge Saul
Rabb, Gertrude Baniszewski denied
she ever laid a hand on Sylvia.

“I never refused or quarreled with

Sylvia,’’ she swore. She claimed she had
no knowledge of the cuts and bruises,

burns, scalding, branding and tattoo

marks.
‘‘She blamed it on the kids and lied

“dike hell,” her own lawyer, William
Erbecker, would recall 20 years later.

- But her own children refuted their

mother’s testimony:and said it was

indeed Gertrude who masterminded
the torture. The testimony of the
coroner proved most effective of all.

“‘What did you think when you saw
this girl?’ Defense Attorney Erbecker
asked.

There was an uneasy pause for two
full minutes while the coroner pond-
ered his reply, trying to find the right
words. Finally the man in the witness
chair said slowly and deliberately:

- *Mr. Erbecker, my wife and I...
cannot have children of our own,

unfortunately. When I looked down

and saw the mutilated condition of a
young child, I said a little prayer in
my mind. I said, ‘In the name of God,
who would destroy a child?’ knowing
all the time we could not have children.
‘Who, in the name of Heaven, would
do this?’”’

Erbecker looked over at the jury of

-— eight men and four women, all parents

* themselves. ‘‘I was truly afraid they
~. would come over the rail and get her,”
he said later.

- Prosecutor New demanded that she
be put to death in the electric chair.
The jurors initially agreed, but on
thinking it over decided that a swift

- death was too good for Gertrude. They

found Gertrude guilty of first-degree
murder and recommended life in
prison. Her daughter, Paula, then 18,
was convicted of second-degree
murder. Her son, John, then 13, and
the two neighbor boys, Coy Hubbard
and Ricky Hobbs, were found guilty

of manslaughter.

On May 24, 1966, mother and
daughter were both sentenced to life
by Judge Rabb. The three boys were
sentenced to the Indiana State Re-
formatory in Pendleton for terms of
two to 21 years.

The boys served not quite two years,
and were released on parole for good
behavior.in 1968.

Ricky Hobbs died of cancer four

years later at the age of 21. Coy
Hubbard was in and out of prison on
subsequent charges, and in 1983 was
charged, but acquitted, in the shooting
deaths of two other men. Johnny
Baniszewski changed his name after
his release from prison, finished high
school, and is now a lay minister.

Paula, like the other Baniszewski
children, changed her name after her
release from prison and now lives on
a farm in Iowa with her husband and
three children.

But it was Gertrude herself who
caused the terrifying case to be brought
out of mothballs 20 years after Sylvia
Likens died and was buried. In
September of 1985, after two decades
behind prison bars, the convicted
torture killer applied for parole.

The Indiana Parole Board, by a 3-2
vote, granted her freedom after a
closed-door hearing, but the public cry
of outrage was so great that Superior
Judge Michael Dugan in Indianapolis
issued a ruling on October 28 blocking
Gertrude’s release from prison.

Citing the fact that the five-member
board gave no public notice of their
meeting, thus denying the victim’s
relatives and the public access to the
hearing, he declared that the parole
board had acted in violation of the
‘“open door law.”’

Sylvia’s mother, now 59, and the
dead girl’s sister, Jenny, now 35, were
in the courtroom as the gallery burst
into applause and cheers. A total of
4,500 persons had signed petitions
opposing the parole.

In December, shortly before Christ-
mas, the Parole Board met to consider
the matter again, this time in public
as required by law. Testimony was
heard from members of the Likens
family and 30 interested citizens. But
the star of the hearing was Gertrude .
Baniszewski herself.

‘“?’m sorry the crime ever happen-
ed,’’ she sobbed. ‘‘There is no way to
undo it... The girl was in my home. .
She was burned and beaten and
scalded... I know I had a part init... I
was on drugs. I had lost complete
control of my life. All I can say is that
I take full responsibility for whatever
happened to Sylvia.”’

Her changed attitude influenced the
parole board, which agreed to permit
Gertrude Baniszewski’s release on
parole. Like her children, she changed
her name after being released and is
now living in anonymity somewhere
in Indiana.

Prosecutor New and Defense
Attorney Erbecker are the only
officials connected with the 20-year-
old case who are still around today.

‘‘The facts were so horrifying that
the deputy prosecutor that I assigned.
to take the case refused,’’ New recently
recalled. ‘‘So I had to do it myself.” __

The Baniszewski home still stands
on East New York Street in Indiana-
polis, an abandoned, dilapidated,
darkened monument to Indiana’s most
nefarious crime. Neighborhood kids
call it the ‘‘ghost house,’’ and they
know better than to go inside, even
though the door sags invitingly open. *

Death Followed Carol Home

(continued from page 27)

downtown Municipal Justice Building.

At headquarters Scoggins and Keefe
provided an easy atmosphere for talk
with Ward. It was soon evident that
Ward’s family life was normal enough,
but Carol had lived with the plague of
almost continuous migraine headaches
and the medication that she relied on
produced a lot of side effects that often
were more severe than the actual
headaches.

The Wards had been married for
about 21 years and they had one
12-year-old son. Bill Ward went on in
the discussion to reveal that Carol’s
health problems, at times, became

_overwhelming. So much so, the boy

was sent to live with Bill’s mother in
Coral Gables to take the strain of

caring for him off Carol. This arran- .

gement worked out well, with the son

doing good work in school. He came
to Orlando to visit with his parents on
school holidays but returned to his
grandmother and school in Coral
Gables.

While the facts of the family life
were interesting, there was no indi- —
cation of anything related to the
murder of Carol Ward. Scoggins
questioned Ward about enemies— _
persons who might have some motive,
4 reason for wanting Carol dead. —

Ward spun out a story about a guy
who had lived with his mother in Coral
Gables. The man, about 45, had
moved in and out of the mother’s
house with the kind of regularity of
changing seasons. Bill, who obviously

(continued on next page)

33

one


Blood from victim’s body
trickled across floor of library.

his watch; it was 5:32.

With aroused curiosity Ward walked
into his house through the kitchen and
was further surprised to see bags of

aba groceries scrambled around the kitchen’

in grotesque disorder. Carol’s kitchen
never was a shambles. Some of the
items of food in the bags that were
frozen when they left the market now
were thawed and soggy. Something
had obviously interrupted Carol before
she could put these things away.

Bill Ward, apprehensive, with his

packages still in his arms, ventured into

the room that was used as a library/
den and also a dressing room. As he
stepped through the doorway he was
frozen still by the sight of his wife lying
in a heap on the floor before him.
She was naked from the waist down
and punctured with vicious wounds
scattered across her torso. Her head

was also severely wounded with
crushing blows from some heavy
object.

Ward was stunned into a state of
shock. He dropped the packages he
was holding and knelt by his lovely
wife, touching her cold leg and
knowing immediately that she was
dead. For long moments he remained
bent over her muttering her name,
knowing all the while that she would
not ‘answer. He rose after several
minutes, dragged himself to the
telephone and called 911 for help and
the police.

In a short while R. Murray of the
Orlando Police Department arrived at
the Ward residence. Murray went
through the routine of relaying to
headquarters the details of the
situation. He requested help to secure
the scene and outlined the necessity
for crime scene specialists to deal with
the homicide.

Detectives G. Keefe, Bob Mundy,
Mike Wenger and Sergeant C.D. Smith
reported to the Ward residence.
Investigator Randy Scoggins also
joined the team of OPD officers; he had
been called from his home and was
put in charge of the investigation. Jay
Hinton and Denny McDowell, OPD

Veteran sleuth Randy Scoggins.
Over coffee he listened to a grim
tale of murder.

tag

technicians, also reported to the scene.
The immediate procedures effected
included a canvass of the neighbor-
hood in an effort to discover a witness
who might have seen some unusual
activity.
- Keefe went through the house noting
that there was a stack of gold jewelry
on the work board close to the kitchen
sink. Scoggins and Keefe discussed the

‘Carol Ward clothing, including
‘ undergarments, shoes, and pants which

were in a pile in a corner of the
kitchen. ,

The halting discovery, was a knife
that had struck and remained in the
abdomen of the deceased. A second
knife with a broken blade also was
found near Carol’s body.

The investigators, who were expe-
rienced and accustomed to sundry
varieties of murder, were shocked with
Carol’s horrendous end. The unfold-
ing story in the evidence was a
revelation of horror. Obviously the
killer had tried to wash the stain of
death from his hands, for there was a
red/brown stained hand towel on a
stool, and the kitchen sink had
irregular red/brown water markings
dried on its base and sides.

Scoggins took Keefe aside and
instructed him to tell Mr. Ward that
they wanted him to accompany them
to the OPD headquarters at the

(continued on page 33)

27


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for the meeting where he convinced
the woman to let him drive her to the
MJB where they could talk.

At headquarters in a private in-
terview room, the shy woman could
not hide her fear. After coffee and
small talk the woman slowly began to
open up and explained why she had
called Bishop. But before she got into
the story in depth, she was read her
rights and she signed a card that
specified that she understood what she
was doing and that it was voluntary.

Immediately she explained that

_ although she was a white woman she

was living with a black man. She
continued, recounting that she had met
him while he was serving a sentence
in the Belle Glades, Florida, prison in
October, 1981. When the man was
discharged he joined the woman and
her 19-year-old son in Orlando. That
was in December, 1982.

Scoggins asked her why she thought
that her boyfriend was involved in this
murder. Carefully, precisely she
related that he had left their apart-
ment on the morning of the 27th,
headed for his job at the golf course
on Curry Ford Road. She said that she
later learned that he missed his ride,
never made it to the job, but instead

reported to the employment agency

that had been sending him out on
temporary jobs.

About a quarter after eleven the
boyfriend was back. There was
something strange about him, she
stated, and also he had money, ‘‘at
least $30.’’ She disclosed also that
sometime during that day he bought
some pot, some groceries and made a
$20 payment on their TV.

Prodded by Scoggins the woman
said that she thought that he was
acting, ‘‘very suspicious.’’ She
revealed that she had observed that he
showed an inordinate interest in the
newscasts which were, ‘‘detailing so
much of the Rosemont murder case.”’
She described him as, ‘‘very touchy,”’
when the news of the discovery of the
Ford wagon was broadcast.

In answer to Scoggins’ question she
responded that she had queried her
boyfriend about that particular
morning and how he had spent his
time, since he missed his ride to the
golf course area. He said he was sent
to another job by the agency in the
Lockhart area. This news shattered the
wornan, since Lockhart is further out
but in the general area of Rosemont.
She said that she did not want to
believe what her mind was telling her.
And she said that when she asked her
boyfriend to confirm the location of

Lockhart being near Rosemont, he
went into a rage and demanded to
know the reason behind her question.

At this point the woman questioned
her boyfriend about the clothes he
wore when he left their apartment on
the 27th (explaining that she had not
seen them since). She pointed out to
him that Carol’s car had been aban-
doned close (just a few blocks away)
to their apartment.

Scoggins moved speedily to get the
criminal history of Anthony Bertolotti,
the boyfriend, from Dade County
(Miami) Florida. They supplied OPD
with mugshots, rap sheets, fingerprints
and other important materials.

The detectives then retraced Berto-
lotti’s day of the 27th. With the
assistance of the employment agency,
they were able to develop a fuli
account of Bertolotti’s movements on
that day. It was also developed that
the sister of Bertolotti’s girlfriend
revealed that he told her that he had
murdered Carol.

Bertolotti was still at large and an

immediate move was initiated to bring

him in to headquarters.

In an unusual development, OPD’s
Public Relations Officer Rick De-
Treville, on duty in downtown Orlan-
do, spotted the suspect. Despite the
surprise that gripped the public
relations officer, he alerted head-
quarters and he then shocked Berto-
lotti when he halted him and wrestled
him to the ground. With the suspect
nailed, De Treville held him until
back-up arrived and took the suspect
off to the MJB.

At headquarters Bertolotti was
charged and booked for the murder

of Carol Miller Ward. The accused was -

interrogated and he cooperatively res-
ponded to their questions, virtually
admitting to his crime and at the same
time filling in the details that had not
surfaced until this questioning.

He confessed that Carol Ward had
permitted him to enter her home on
his pretext of using the telephone.
Inside the assailant said that he picked
up a kitchen knife and robbed his
victim of $30. Not happy with the few
bucks, he forced Carol into the Ward
den whete she opened a safe and
searched for more money. There was
none. He said that she tried to talk
him into putting down the knife. He
refused. She made a crazy grab for the
knife but he thwarted her attempt and
began an unending series of stabbing
until the knife broke.

He went on recreating the murder,
telling that he ran into the kitchen, got
a second knife and returned to the den

where he continued the stabbing, and
then he strangled her, ‘‘until she
stopped moving.”’ |

In a state of frenzy he dashed out
of the room, jumped into Carol’s car
and drove to the area of his residence,
abandoning the vehicle behind the
apartment complex close to his own
home.

Bertolotti told the police that he
could not afford an attorney; a public
defender was appointed to defend him.
The trial date was set for Thursday,
March 29th, 1984.

On that day the trial opened, with
William Ward reciting his discovery of
his slain wife in their library-den. As
the trial progressed the jury of ten
women and two men heard of the
grotesque killing that included sexual
assault of the victim. They also heard
taped recordings of the 31-year-old
Bertolotti’s admission of the murder.
The state also presented testimony
from Bertolotti’s girlfriend who, after
coming to the conclusion that he was
involved in the murder, called Crime-
line.

In. his closing argument State

_Attorney Robert Eagan described

Bertolotti as a cold blooded killer.
‘‘The man was as random and as
dangerous as a lightning bolt, wan-
dering through that neighborhood
looking for some place to make a
strike.’’

The jury deliberated three hours and
found him guilty of first-degree
murder.

On Monday, April 9th, the jury met
again, this time to vote their recom-
mendation or rejection of the death
penalty. Despite the pleading of the
public defender who argued for the
defendant’s life, the jury voted nine
to three for the ultimate.

The public defender announced that
he would attempt to convince Judge
James Stroker to disregard the
recommendation of the jury (which is
the prerogative of the judge, according
to Florida law) and sentence Bertolotti
to life instead of invoking the death
penalty. But the judge followed the »
recommendation of the jury and
Anthony Bertolotti was sentenced to
die in the Florida electric chair. He is
now on Florida’s death row.

For her contributidn to the Crime-
line program and the solution of this
crime, Officer. Jim Bishop recom-
mended to the woman who had come
forth with information about Berto-
lotti for payment of $1,000 reward,
which was approved and given to
her, *

35


Death Followed Carol Home

(continued from page 33)

had no love for the man, described him
as a ‘‘drifter.’? He was not much for
work either.

In addition to that, Ward said that
he was petty and once when he was
irked he slopped paint on the floor and
then sprinkled sand into the still wet
paint, creating ‘‘one hell of a mess.’’
Ward confessed he wanted the bum
out. Considering how vindictive that
man was, Ward said that he would not
be surprised by the man taking revenge
on him by killing Carol.

The interview of William Ward was
concluded and he was driven back to
his home to pick up his car. He was
advised that it would be necessary to
restrict him from his house while the
investigation was continuing. He took
temporary quarters in a local motel,
not distant from his house.

As the post hours of the crime
passed, Medical Examiner Dr. Thomas
Hegert and his assistant, Dr. Shashi
Gore, had the body of Carol Ward
removed to the Orlando Regional
Medical Center morgue for autopsy.
Gene Baugh, Director of OPD Tech-
nical Evidence, worked with his men
until 1:15 a.m. when Scoggins secured
the house and its territory with
posted uniform officers until the
following morning.

The next day, Wednesday, Septem-
ber 28th, Detectives Mundy and
Wenger went back through the Ward
house. They came up with a register
receipt from one of the supermarkets
where Carol had obviously shopped
before her mysterious murder. The
register tab printed out that Carol had
paid for her groceries a few minutes
before nine on the day of her death.
It was clear that her assailant had
bludgeoned and stabbed her to death
not long after that recorded transac-
tion, since her groceries were found
strewn in her kitchen, not yet put
away.

The two detectives proceeded to the
food market and interrogated different
employes there who confirmed that
Mrs. Ward had been in the store and
had bought a lot of groceries.

At 10:30 Scoggins and Keefe met
with Dr. Gore at the morgue where
he did the autopsy. Gore stated that
Carol had suffered a number of stab
wounds in the heart, liver and both
lungs. Hemorrhage, due to the stab
wounds, was massive—internally and
externally. The doctor told the

34

investigators that Carol had defensive
abrasions, stab wounds and cuts on
her right arm. It was obvious that the
victim attempted to hold off her
assailant, but failed.

Gore also disclosed to the detectives
that Carol had stab wounds on her face
and there were heavier blunt force
fracturing wounds of the head. The
M.E. added that he believed that Carol
had also been ‘‘manually strangled.”’
Importantly, there was the additional
revelation that she was sexually
assaulted.

In the separate pursuit by the
different investigators, a concerted
effort began to locate Carol’s auto-
mobile missing from the open garage
which had been left with the door up
in its overhead position. The local TV
stations and the newspapers were
provided with pictures of her 1975
Ford Torino wagon. A broadcast effort
was made by the TV stations, and the
newspapers published the picture with
a request for information on the
vehicle from anyone who might have
seen it.

All stops were pulled out and
Investigator McDonald, on a follow-up
of Bill Ward’s statements about the
guy who drifted in and out of his
mother’s life, called the Coral Gables
Police Department. Sergeant Robkins
took the information from McDonald
and said he would look into the
situation there.

Going further on this tack, Bill Ward
was reinterrogated and he assured the
OPD detectives. that his wife would
never ‘allow the Coral Gables suspect
to enter their home. He explained that
there was a great deal of fear and
friction between the Orlando Wards
and this man, and he told the officers
that Carol was deathly afraid of him.
The Coral Gables drifter had never
been. to Ward’s home in Orlando but
it would have been relatively easy for
him to have obtained the address.

The intensified investigation in the
residence produced a beer stein that
was blotched with what was apparently
blood and was dented, suggesting that
it had been used as the weapon to
bludgeon Carol on the head.

That Wednesday had become a
productive day right up to the last
minute of it. Just before midnight
Randy Scoggins got a call at home with
the information that Carol’s car had
been found. In a quickly organized

Ce tr vane nce tame nce

move, the vehicle was staked out with
the hope that the perpetrator of the
crime, who had obviously ripped off
the wagon, would return to reclaim it.

Nothing happened, but the trio of
persons who had spotted the car and
regarded it with enough suspicion to
notify OPD were asked to come into
the MJB and tell what they knew, had
seen and could offer.

They told the detectives that they
had originally spotted the Ford wagon
on the 27th (the day of the crime) but
there was no real reason to get excited
about it. They said that they had seen
any number of cars parked in that
general area behind the apartment
complex and that this was just another
one. When they heard the description
of the vehicle with the license number
broadcast over TV and saw the telecast
picture of it, they realized that this was
not just a parked car, and reported it.

When the stakeout proved fruitless,
Scoggins put a swarm of technicians
on the car and through the neighbor-
hood sweeping it for leads. The
detective in charge, in time, had the
vehicle taken to the MJB for process-
ing.

More and more bits of information
filtered to the police, including that
Carol’s wallet was found empty of the
$30 or $40 she probably had. It was
also determined that she had paid for
her groceries with a.personal check.

Bob Mundy and Keefe returned to
the Rosemont area cornering every one
on the scene for anything that might
be useful. One of the residents offered
that he had seen a neighbor, ‘‘talking
to a black man.”’ The incident that the
neighbor described had occurred about
three houses away from the victim’s.

The officers left their cards with
everyone with whom they talked,
asking to be called if they came up with
even the slightest lead. * ,

On Monday morning, October 3rd,
OPD Officer Jim Bishop, who has
earned national prominence with his
Crimeline program, got one of those
calls wherein the caller offered
information. Bishop held the caller
while he reached out for Scoggins on
another line.

“I’ve got a woman on Crimeline
who says that her boyfriend may have
been involved in the Rosemont
murder,’’ he passed on to Rartidy
Scoggins, who dashed over to Bishop’s
office and picked up the call.

Scoggins persuaded the woman to
get together with him, then raced’ off

(continued on next page)


a »
vrvas BP BBVUMIOTOU BIG GIUYKE, BUG] TITY ote weet cee cee een eevee) nas Wy. este etm oe OH ain ordinary Life lr . ~~ ;
brave:y warched to the ware fo Virginia, | lstricts, walle generally throughout the J Ornalia.. bE Ld «a, eo 1&0. (Cloudy me ta wt .
Hewae lathe Heoood Florida {ment,| Wheat aod sore states only very light pperg ts “ = be Bvt! Me sor tae THE MUTUAL LIFE INSU MARCE
which was commended by Coloael Ward, |*howereoocarred. Thera was a» total aly see ye et eh edt. Fale ; '
then by Colooal Daolel and afterwards by | *ezoe of tain tothe weet portions ot Teunew: | uae gs Bi al ea WW bale seddnee Ls 69 ir
Calooel Perry. That regiment was in some|™e and Kentucky and over a yreater Dratye City... ttt! @) 66 ne yl i al soa Hite annual proatam wae 835.71, bat on aoc-
hard bateles, aod if you fod Mr. Fallou {og Portion of California. The weather duriog | Santa Fe. WHY 64 He n . Pale count of hie livivg ta what was cousidered an:
® xood hamor-—which is bis usual cood{.| ‘he past week was reverally uufavoratle : Unhealthy section he hes, anti] recently, pald
tloa~he tell { for growlag crops tu the atates of the 3 alow zare, an extraof 85.08 year, On March 2, IML, the a
ve —be cag sone tortll Ox wtories of Mlsslestnpl and Ont i Mince readicgn uf temperature are below licy becawe a doath claim, and the fulluw-
@ bloody Sevres Daye’ battle around se'ppl ao O valleys, Owlng to the’ 104, Dg reault Das been altained: _
Kichmond, Baooad Hail Rao, the Wilder- reas - ” Be ga hp reporte —— ‘i Velocity of wind lees than alx miles per | Usigtnal amount of pulley... gi.cce om :
hoes ant Gettyabarg. He wae ceptared in @ priccipal wheat and corn ataten tadi- oor, ; Additions bought by proflue . cee 1,658 00
the Wilderness aud wasapriemmer fret at |catethat a contlonation of the present) TU Rainfall vos small te ineasare. Sass sno i/ B a
Potat Lookout And thee at Kimtes. In re-| Conditions during another woek will cause See oe baroducter rratings redaced to} Amoant of policy patd as death clafon ts Ww i
lating remintsc-noes of prison life he says: | & drought likely to pots Of vertous injury | S64 lovel sud standard gravity. Prera‘uias paid (netading £10.00 ex-
“Thoy dtdn's xive us enoagh to eat at {. to the cropa, Bisal wraln sud Hraen are - . - ~- 4. tra) a= 0ae oo. wee oe Or ee ce +e lia 96
tlre, Yea can tell any bod b lo dangerowlog to the aleence of rain, | LOCAL WHATHNZ OSBSRVATIONS, .
: y who cays Preditsasadeathclaim ........... S1.449 OF
diferent bo’sa liar, We would steal the | from Teoneaves nortk ward over the upper . --—— . . 4 tae
bread oat of a maa’ ” lake region and Minnesota. Was Darsurenwr, 3. ~The Denefctary ivetved the face of the
so'acyeatherse.”’ lle waa Bromar. Kervica, U. X*Amwel patove volley, vir: $).uTh ail the money’ be
& prievoer there for fo } Although more rain ts pocded tn (dekota, . / ta th } :
fr fourteen long moath - 4auawowertiiia, Pha. May 11, al, | bald the oognany, and $9 MV extre. .
acd oaly got ont and sat his eyoa aaed Nobraska and Kanaas, the weather durioy| 0 7 AUHROD : cites : Cvounent on Uils truly wquderfu) statemaat

sacoy Florida after (ienerat Lse aar-| the pest wesk was more favornbdle, aod zd =e 3 Ww ate Fh @~ | fs untovonssz y. All
teadered, froste] wheat ts recovering, but wes prob- er . E © Joneses xt : .

Mr. Fallon aaye be has seen Jeffanson| #biy ecmewhat injured by tho {reste lent ae “s 2 ciU< 46 id ong Fhe Best Company te the Compnay ” catal
Devis and lon oven, Genera! Les warn | Mant Favorabie reports are alco 5B fe = £itk Baris Whiok Pocethe Moat Geod. aos
ee man whe rode a hore riax- ne a cigs Ag —_— re ba & aus oy BisgR }. aky, K. JOU NEON, Gomeravagt.}
alfceatly. ° . | rado, « alge ; 4 hg ue ese r
Gredsaaka him once Soe MN? thie plow | our areatly: Impia ved rng oe hg Mer 3 aa | rf PTT Ese [ola Bh Poe ox we ee, Ten

Pat related all of t ditlona, beat odztiuued la Mus coadi- | —EQ-—; meme =| Fs Ag yf — |---|] —— MOUTIL : 4 :
deanloy over a atoll tet pe ie tlon tr: Mlsawurt, sitbough rain 4a needed 7: tf Dh Siow | =f ou} mijea Joar g . bplc0 1: ame ig « Rha 7
iteele sitting room (hat had trape of all} !m the southern bal§s Reporte fran Kan-| Sg mw 10! Teno [7 bil nee sear Now York Standard. Phonogeaphie™ lostitnte, }
kindefglt, In ene Qorner leant a Win-|/areteis thatzbo fy @od uminch begs mre! terhet tampetntu-a A; lowest tempera. : grtp ‘ ;
sheahate rifle, on « faro table were haod- Somsging thew beak tg plaoee. pan pete. reed tie aye Scere, Aires: pons geet Bhan: Taphy, felccaraphyend t= wridlox
ou tola, boos and odda aml eacde of a heatuc an anpeace oat 2Q Just lemporature, 04, lowes perature, ug rougoly by w prdctinal stennyra- _ ;

t low; Yroet Idat week | 6. . ‘ pher gud telezraponr, bavicg several yeure’ : <'
Py can le re a ere ieateiae abe Dreperty corn a turnlog Tallow; Tost aan Filled Te eniednt of JalntalD ts eda byGnahes | experience an nw tebuner on tbese arts. a4- Eh. i.
much cotton fa Tennessee; a larg area of | *2Chumladiths - ‘e Se ereral ee eaaeeY call at 8, MGioroer plain acd Adare
he reporter ¢zorarcet a desire to ser " ba ta InAloetiore--Weeters © Klority Cenyrall yistrnete; b, ie
the prisoners and Mr. Valion with a big | tebacu,) land ts awaiting ralo, piowlog te/ gic slatluumy (pm perature, variable ~vinda. a = —
banch of kheyus led the wa opened the |#aapenied end proepects arq_gloomy. | Matter: Fuortda: ‘ir, alg uly Toler, ace pt | Brameeismssin sheeepneioees 9 pee cress
door of tbe firvt Moor of the hts 2 and | Texae reports that the 1 weeiher has | erdtunary temperature fa Boat Plot &GHAS ‘A. Cl AKK
there were five of them. Two ‘Savina retanted the Rrowth, of chtton ahd ooth, a el mate ae. #-- _ at: ale oi ’ ;
carta, enother looking of aud twe more | Dut the outlouk contlouer ‘very tavorabté, Thee BGMuNTt GQ Py Ondirtaker's Professlowc! Bm dil mor,
walking “P esd down for eaxetcles and|Small grain crope promise well and the Vornbtidinaswiosfda, PU “Ue ‘
!
Gace, ’

a 63) WW. Popayth’&<¢., J vit, Fle.
tal shene oat harveat has commenced. (Nlsalshre| i . & t» x uy’ We
Tree aslo ‘noneitieebented Garser, dotng fairly orakd fae, bavthy del} oo OPEN ALL ate YjAH-ey fi ee or, Se arate tal
waa welking arm-laerm with anctner| Weather hae injured cotton, ‘wod lute p= elesat betel, I1! seroma nies a
Dearo, relaticg bow ‘‘dat eal did love| planted cottou fe act com'ilg up. releoualllé rates: <9
him.” Ho seemed to be oblivious of the| This tz alec theccndition of the cotton °° ig AW. M¢Mrewarr.
fact thatorer bls haad ku the flaming | COO th Loulslana, Misalelppl acd Ala w a | pean sa aE pa >
eword of retribution, while the blood.|>amabuttfratn and warm weatker <i Te SEMATNAUKRI—Amifia Mack. tH

be

ber aioe?

_—

Btate Agents fur

[nanan “Some

EB i ltraiigest thing ts Pe tile
ae purat clothes are as i Fk, is

teal h .| 2ardatiog tho comicg week, the ctop msy . : . ‘ ,
foster glis fet bearysacs pear ils | Seed frou mrloud Tojury” ia AOE] Vernapataceriecida, 1 7h | WOO ty Wo Bay They Cor. Mal
Gtal aad repalalre face, in which the! Carolica, South Cesulloa and Virginia re- Qwiagctp sordsr, dlaxgpolotmput ley get- GUT, Hardly anybod vOF. Balt
aalmal te all tou prominent. Sherif Ko. | ceat rolns have greatly improved the crop tug wotk Mulapet. there sill one tow sthinks how rare such
beteon of Biarks wae the victim ov. his | conditions although some damage te re | days’ delay lao oygcing the Heel. Partle tt
wrest, and for bis ander Foster stands | ported from kall (a (he Carvlinas. wishing come wil be aommotated | AGreement ta,
rgect. PD er bog ag erty we antl] the bpealny at the Kamhat . wu eeo the advertise- a f
austroag, th an esuntil ; y, reerlitiag in 1S tien meee st Eo ‘ “ey
Conk. Nip d@tnnty comes Jogegpe wr considerable fojury io grand and enuall graia HOT SL ABZIVADS. ment in the pepers; and, ;
pe He was Uoeteuing to (isyeer’s tals, | Although recent rulus aare ow vhe | - steels " s unless you kncav ug, youl fined {- rs>
f Falloo remioded him of Ya prozious | cropa to tmprove, aad prospects are wore oe wattaks itfor pant. s<dthpat you MIVE

. t W Wer Pitd-Lurg: Ob Sw
wivice that he wee emoklog to) muod, bul | *2codragiog. (jraat and oats ware some dwarue. BM tap tavepax NC hwapee, ene ane

the two little gleamiug blaak eyesof Arm {whet lojured fo Pennsyivanta, aud dry heey ue J hu kis geud wife, M dugustlue: sar .

s:r00g showed that ait | Weather ban detayed plowing. Cres | inwe, it Loule: Add soy B Ale oh wite, lirwoalyn, | SBOOULD oh OD. maw .

weat ea ersoking. : eee ee rea Gueetiy retarded in New York owing | MY; WF Ogden Fas, New Sura, Clare Polen : int fox* sh p-kec DOs and Kubbor Bel
thea +

oly; ae! Sava -nah: ‘ i} Mi . KH, Bt dite
paula with amall-pox marks and alow vecnce of rato. cate sod griue are be- Ch ictanee th ts phar eg ord Saas dans BH radiectly Ck. But, no. The \ i ta all te pramcine
€.

fereh He wears aatort woolly mous. | Liew mot —— pee rere m4 Martin, Ralutinore E Gese A. Leey, Kr Mw Pinos Ques litlos are good: the Iwplementa, Ilanet, re
whton mato bia fos grea eee etter | Ege aad Fierce’: bere the | wax Foie ios ie td rear, Gee Cree | Finastaty UDO Tlacote chee eee a eat ath
which make bis (aoe evea ss sre repulatye, | Selda and pastares are below wuch toJured jah Ayman etans greta capa t ang stylish; thoy are rv eased soninnebatag

WI have £9) allow: some Bash, Blinds, I’siots, 0:

In coplytoan t “some. | by 009%, dry weather, Proepects for fratt | 1444. , Ferusadiae: Mrew » Themas © Neahe: 2 + --
Uma foo well aan sec ly Gone" ‘o New York and Psonsy!vania are ervel- x H iton Vireea. Frosacrla, Pia, W 8 Mandell. Re £000 ag if custom-mado; A.D. BEV ENR, Me.
M ho ecentt A2 aaxtous, carewora look, | leat. Sins eae 2 pearance? a there isn'ta word to change | 7 Yt Mer Bevis
: " titrd ble somone neem alert to «700 7 deisli of ANCERER BURIAL. eee Jeweuy Bere st hetwoen what you think 1a
1 ran ny uf the on ae Do you want @ good wataa? . y Merrill-St.
Pr en slory {rea cage were] £ Store at Mew tansville Saloru—H ills Do you want diamunds? . . and we say. :
wie. Alex Pee Pye Mota byes fer Cotton and Mees Deo you nipple Sy hfe Pang vag - Ps It ls a comfort to deal
’ : Ppenal Curresodsece o? TH ee Uw tur’. AV@ YOU & Wa 6 need te- ‘ _¢ ' ‘
t may Lag teetee ting Of Marie Joscph at NEWNANSYILLE, TLA, May 16 —Mr. de pital ‘ where you get a Bult as MECHANIC
Zi hip shlticcleaten, tudlcntl eran etal w. dicerce tag begun the erection of the| Have you auy article or do yoo waut| 1 xXUTIOUS as YOU ex pected. tron and Heel For ging 4.
ai: ° feakecsling « bat laid it dows | batidiegs for the meas tne and mee eal “'tso, f respectfully lavice $10 Lo $35. Skeleton lined. | Mauser sud at short hatin
( PRMTLIY Lavin the repartee toreater, aboot | 41. wtitintans the mersionse tne toc tne |. ae respectfully lavite your patren.|% 5) LO S25. Skeleton lned. | ire ieee avn


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DUKHIUN H MUP here we foe have go Some ha
A CONV DIRUN HR — o Seatk lo “sl Date Char eve, ve been
‘ONVERSA aRs. an th Carolit He enaeeer -
TION ok aril pa fami from ay back
WIT into gam ly. a no
Pen Gk H CAMPBE apr maser wee ite pam che
te fkstches of the Men vag [eget ese aks a
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y¥—So ey Loo alting J and en - He ree ell. Ch tchell th
te corned and in bt
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m an
nit hha of Pat Fall hat They ae oe ae intstry eames Cantiien
tarzuaC ons F& Just ave cl pt vagoea alnce oa
: At th Soe. areer. eeit. | 8 == short arcaleeed = waahivtcanie
Be atreet { *.exhsom acy killed rs awa after one en
pee?! $4 m at & ourt acqn! alrbank hita ma dslonel m.
se nenctit de a hick b end of I nen He Sia La Villa. pet retchell
os dows, Aig a hiwh Aga bull ts Aberty Nelsen are et la. Tete Wan
7 ple look ed with be eit, ¥rowk A Aur. Wird was colored colored brite - ‘
< 2 : wilful out npon avy rodsof the win- es yard, naar es avg poltor alew Joe
a Altting aoxfousatr the wail fron, peo a the <n . io satiaen fe and
tesiaiells and fro | They Rebs: with a rfal judyeoeat. aod Pn Tagine.
25 . n 7 A ae a
Be: thither, ad perple am ehlere riage cea 5 ne ettghty name! ¢ se thats
Be bola uf d, la vow pavalng ¢ alr cf] BN Wand the « aide Cart ~<a
= iseel tec, bithe on b Mer nye y ond kill “ee
e ware tik # child ylation e ant dniye y the neek tence th “ul he wan es} =
aS be eall ret, wl of the T xecated until Se ae Sco wr ici
Bs fore the ttle child mb that th Kam | M he next in the ja! he wasd shonla lt) Fi ATHER B wees
a on the recor and no 7 with thetr i as, ance 2 ag 2 to Leste endl" was! SS wl hae her ee ee
3s ord crit v ‘ cted .w ; me got hervice ° oe ae:
2 Ua rdoll sou es aly | ce ol be ung t ment ner In
re the ane froat _ nees'ot oe Inaloal nena i aa chiaged wae)” pre k e: Ntinon, taken eaten th | mottos to F ;
oe jatht er alte ys of thi Tiction exctnore! e aud b aart | i the same J trang —
B=. isa alg a ral 7 , ext and, ental! kiias me ACR ere 1 _
Be apecles brindle ao kooews ia ally which naaatte off ar ype tg triala j esviia W ane fe thues, ytetetcgeee re m the City
BS with < wis gprs a of tt ae ommety Tne fe for the brntn hoe ee | “ _ SHG AL SECU UA Maree a usr _ Hane oe Taso —s
= fut = Ie the ¢ ve bull d Wan a ast peiso tal mu ble nec wae: o£ oh Pra, waar ret Vice in, Ha Fairhead ators. * ES
2 on to ive men ns ar cueing. — bagaie. sa piplersitong ble wile a2 ‘Ther, Wind oy 1 UL. Pail Fate Sitter at FO
Res . , fbr 6, { 5 co . . v4 : . os
3 Thee: ie (Vee off w endeavor 7 operons | with the fachanitic be: blood MTATION 5 ewe in \ ¢ nalo We Vice I to Myers, Newmans: =
Be ee iireath pled Fle lant ith «a etn aK — em rorcloa bef ofa = bright INKL = os! B = ios z fary anal Treaware! ‘resident AL Be pe nrer et
3 ‘ Ary ctleall atrout fA mpy leo - alhwea wore aopy a a ie Z = ii D de pal Treaanrer, - eat . te orner p
a. ni Agha agar iter {teen y ieee tha bate oo old his eve mn! 2 Bs pee ei o LE. Puan e {eC bes 7? mph ©
A , ene yea ‘ th ned ator ha : 5. rad 1 fo Bey; etrheer ~ H, # t; Nee *. deny
gs rare mppllances pte ar heat Iefeiebtast on a fay ak: thie Monn ‘Ate {° = 1Er op Bea g Oe amma amet 7 a
Rs ad bie ol vatld e m o ? niet ft siffoca’ old rtaln f wettietil : prt: sto | | ra, of Wo yveran ; :
= th fur ving INRA mode ef Gea! ron wa'lo mat n | ete r ore w.i attoe yeudJ the C arte nm ‘| Sa oa
a ree ats nily roome tor The frant iuc'a t the | wont norterte| {t ow waa! i. gel hie pe Bie bl nd » Attor-
wm aiclen ry inde abd the ator t efroat: rm ttal reat ndgee moxpt. ry Whew 1 ay out tofey 3 g! H nha kee t-law atreeta: em qe
> . : ba ba t cof I tifal w andt sere | N falanid te? v 7 t M corpe ma, of Ui . 5 nla; far cS)
33 Tho, a leouth no cage t ck fa Jailer of treea irda a orld he pure “Spent Tart. Beat & ue! a Fai arvin, e Mal Cierka W oat — hi. bss tC
B celfe nd on dao of Itloked U0 Kren oie bre. od yree alive with alt; nilwtel pe ae ts nw : & Fale Hay ete Dreakie a and atin, Hb incr need t ii;
So . ach ’ thle In a t : sthed awitt ho oth 1 Waebt phie we then 4 Slee tn, oot: J nt Me omyt a : pi é
7 T ald ca tt agalo ithe ei. singto a it 1, ree —. 12 Went | KR, rehan bh at (Ja. ake
3 ot aaie 1st, tat * of them onrridora Persia c= in the | petite a ere ek Clear | will be Raat itay promt pane Natal hash =e
ae pases : ver thi ictl atth a DU Sorted , oe @ Ke woe Cla furnt aial of th ; oK e oes As
4 our ty 4 on . ok + RO — ta te aee -* tome mish tot ea Tree a
B rp ye bee {dD mpeg ro $e Sore Si K arveeting Pr = jonactaren a ies pe apart hime hamed . ot = 2
5 al Rsndteones anes for a i and - “i's the Cou otpects A Ware cc. peak pe B. oe : a IE 2s tata ahuat oo nae gai aay. [~
character of ear stor Se Peeper doesn ty i W ASHIX« ' dhine Sirsepiiegly te Over | Dutster a eae a. : Clear esatat Call at to We aad Pe Beet ~ OC
3 gael earl deba thes beeen. Wenn: “TUN, stun isomer’ > 68 tA ees. icheta ¢ ~> Wiewt Ihe at ur- >
he cen” y daskeentone meant au'a weathel May 1: Tanta. ia (Fang. £8 OER Seo ra
— ° ° th i: ..T Henin ota ih bt e le lear eod alti av alr =
“a4. ped and ’, Chia oavilief oy a bar war cool er cro The Char! gten.. WTI om 8 | { Bont 1ote, I ret fo -
eI ily ae and on I toronghout the sot wee ee Aetna . is a rat aa : Cleat ' on. I Siodtaiabta’ sent < o
BE oor h alle an t e De @ 80 wee ave ats! Bsi Ta . | lee . Naw- oe 1 vew a
3 "Re Faraone tare S28 etd! tte eaten side cont, te eft tree Serie 18 ey: Ss “Seventh |
B- old jail. Mean for w th ripened e floor dail Iadtan nt ae ureatent ae {o Atante oe | 72] jae - “ ‘oar: aaa ont rats ape ps e
yy at em y or ‘enaeu 4 ice one & . “AC y Wout A ~
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4 a Schutte ante Deen the lnntle atate bes aaciaat, 1a the eight de Montcvinery” ste are tisar | shor Cartas 1 ae “ SOR oe:
= the eaw otereatl deta ea | rao ad esathaal . In th t de Ne shure . dw a | a ia tees y ort pot . Tawa a id State :
aga Jf wea. the Dy Cares Pac} ht! from ad e(iclenc 9 south New Urisans, ») ta] aa, t+ an \ 6 ro floe. loe at th nd Fav ment
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4 rs ge et ie or ee a} the ba trl rh Se sien rapaley {rn 33 Knoxville BOO id - if : Vlondy D 4RLIABLE ed | soncpleaulattY
; thor ooc lorid car a Ivey | the ntral v ppl.v ake re ym 42 N mnphts ve (ON a Ria Ms ¢ oudy — of}:
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of with erper and urened |% »whil alu th nort} gbout | apolla ry Bs dlaal Cc
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» 20 whe thnaleen Small aresa e South over Clevelan os. 08 Mi ey alc ‘Fale 7
n th 1} ported of Atl laiconc, aaa: C vir FY
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Florida changes —
chair’s sponge,
executes inmate Ta

United Press International

Z

STARKE, Fla. — A 38-year-old ~
man was executed in Florida’s elec- g
tric chair yesterday for the 1983
stabbing death of a housewife who,
let him into her home after he asked,
to use the telephone.

Anthony Bertolotti was put, fo
death shortly after 7 p.m. EDT, fol-
lowing the failed attempt by his law- .
yers to win an 11th-hour stay from *-

Ps
G
the U.S. Supreme Court. J

The execution was the first in
Florida since the controversial exe-
cution in May of Jesse Tafero.
Flames shot from the chair’s head-
piece during the execution, and it
took three separate surges of elec-—
tricity before Tafero was pea
dead.

The 1th US. Circuit Court’ oe
Appeals in Atlanta previously halted;
three Florida executions because of |-
arguments from defense attorneys |’
that the state’s electric chair was
possibly not in good working order.

But the state tested the chair earli-
er this week and sent the results to,
the appeals panel, which denied Ber- (A
tolotti’s request after oral arguments.

Prison officials blamed the flames
on a bad sponge in the chair’s head-
piece, The sponge is soaked in salt
water and acts as an electrical’ con- ,
ductor, but before Tafero’s execution
the natural sponge ingle ; “was

changed to a syntheticone.. . ‘.

era “CA

—
a

eat

“|

= LOM


ad for Ven-
egro, with a

stained earth orlee oat

panes. He is a hdtivy-set
vial end ive face, in which the

acimal te all prominent, Bheriff K
peteon of Hi lwas the victim of ble
wrasa, end fur bts piurdur Foster stands
charged.

Atmetrong, the murderer of Polloeman
lowe, waa diligently puffing ata olay

‘pa Heawae Ilaceutng to Giayoer’a tale.

t Valloa remloded kica of his previous
advice that ba wee smoking too much, but
the two tittle aleamtugy black eyes of Arm
strocg showed thaths paid no heod, but
weotda amckivg.’ He ts an underalsed
tiglatto, with amell-pox marks and alow
forehead He wears aatort woolly mous-
tache anda Uaht gromtn af chin whiakers,
which meks ls (aoa even more repulalve.
Ia cepiytoan story ho enid that ‘‘aome-
tlosea I feel srell and sometimes I don’t.”
His face wears en aaxtous, carewotu look,
ead bis eensee vem alert teerery detall of
sotod or action.

Oa ths next story ofthe {roa cago were
the white priscssem, among whoo was
Alex Oumpbell, whats to siend trial to
netcrow for the hililug of Mamie Joseph at
Sw Auguetins last fsJl. He wes found {fo
hla shirteolee Indoleatly recllalay ou tile
bupk reading a - bat lald {fs dowa,
sSuartiy lavited the reporter to eatar, ahook
honda wita him ead made room on the
beok for bles te elt down. Ths reporter
epled « long row af —— packages over
Lo one corner of the eal! crt sald:

“toond your time fn congking ft”

. Ob, mea they belong to another man.
The eres doeva’t allow weto savohke.
coud Bietar Mary Aaa brought us 6
baixet cigars, but I coalda't ure eny.”’

“WwW do you da to RU! trae ?’!

“Heol moet of the Une’!

**Dou't you thick of thatrial or sprcu-
bpas on ths ont couse

Mh apg ef thas lecut of naythiny "’

He

pte pyre of the thenter and paris there
the oom rersa-

la compeotien with tbe
trial exorpe tha above, and the fave thet
Campbell cakd ba thengbt he hed eplesds
oosesal la ths Heo. RW. Davis, sanisted
by Freak Pope and W. AL Me Williams,

Oa tama floor, walking up and dora
the room, was William C Adams, a larue
" gery es feet tall, who = found
ratity 2ZgS man ramed oore tu
Goines tte coe nt

ehvested manra tear for hee boy
knelt asd oftum that the blood of
ut claaues biseoal of Its
crimoce tala, Adaus te aboat 8) yeard
eid. Eile hale awd foll beard ere red aod
his eyw a sold eicel lus His forvhead be
bow acd bis part sae & sneering expres
fom to ble face, @ talke with mw twang,
aloe? alacal everything, asd e2en.s nee:
oartcd as to what tho faire my bring.

Uo tale seme floor ave three ether pris:
overz; o6@ ‘ea lanatic another ig here for
cuadis g reptyes 7 letters tarnagh the
poall cod the thint le for turylary.

Lhete Barve bees: qaite a sumtee cf

ry edn tt od a Dd ok ee SS
ourduriog the comlog week, the crop may
be saved from serious tujfury. In North
Carolina, South Carotiuea and Virginia re-
oent ralus have greatly/improved the crop
oondittous allbough :dme damage fs ro
ported from hat) (m stve Carolinas.
Dreught coatinucd.je the middle At-
lantle states uotll Vriday, reeulting fo
oonsklara ble {ajary to grass and sinall grata
although recent mmilas bare a the
crops to Improve, sod prospeota are wore
evovarsging. (irene and oats were suime-
what fofured {a Peansylvania, sod dry
weather baa delayed plowtoy. Crops

are Kreatly tatarded In New York owlzy
the abeeuos of rain; cate and grass are bo ;
lng micetdatacyea, Like eouditions are |
reported from New Eugland, where tho
flelde and pestdres are belpg much injures |
by oool, dry weather. Proepacts for frult
fu New York and Penuaylventa are excel-
leat.
' SMOTHER BUBOLARY.

& Btore at New nanarille Bulere - bills
for Cotton and Meese.
Rye Currenodens oe Timks-Usios,
NSWHANOVILLE, FLA, May 16 --3fr 1.
N. Pearce baa bewun the erection of the
bulldings ior the vew ylos aud moas willis. |
io will pi.ce the ‘uachinery la & few dayz,
god bop. to bealo Dealnewa by the o4:b
fost, He tas good machluery acd it will {
be well ctranged aud creiftabls to the!
town ioe {
Reeewt!/ burgiars ectered the store of:
9. D, Ratheowen throug a back window, |
Afveraccctlog the cath drawese they da
Perled setth bur very few goule It ta |
Uaoa hl the motive of the burwlary wee ta
obtaty caah; Y eo, they were dlauppulotsd.

Daw Yaoht Olad.

1k bs Cae Latamilon of thsownere of yisits
lu Juchecaville td come tewsther aad fori
eousw ysohtclubin order to upbuld tbe
Youltisg interest bere, which was eatiisly
Uryiocted prior te the regatta given by the
Vinuws Crom Yacht elab on the td cf
Marca leat, If snch a clad cen ba formed
ao 42 to Incinde all the small clubs pow ex-
hetiag, the organization cen work woodels
Love la the fatare, as theevaat of Batuiday
lest awpbly. proves. Dune notioa will te
ulvea of (he thue aad piace of the mevitox.

oes

‘ taalrinog?

| fuk OTRATUMUUM—Amella Mench,

Vecuautina, Klerida.

Owing t e Ulenppolotimeut fa get-
tlag worl ebel, there will Lea few
daya' dela, ....yenlog the Hotel. Partles
wiabiog to come will be acoomrmodat
until tbe openlog al the Egmont °

a

HOTHL ARBIVAL#.
SVEARRTT.

tome Wo Moucrin pitt-eburg: Cie Swayne, Bos
Bwarce Min 1 Sway HC Swayne, Masta: lors
hwapae J ha hleg aud wife, M Auguetine, Mary I
hot Ai fouls, Att eo HU Aletue aad wife, lrwalya,
NY, WE Ugdea Bay, Kew Vora: Chaske Holisnos,
chy: t) Murghefim, cava oath; Ewin by tloteil WC
(hy esterron hyd Howtsblett, New Vers, Tow H
Nertla, Baliiineta ERK Geet, him Lacey, Mra OW
Itate e elm each, Fla, Tos Yoarny. otler Creek,
bie. Gow L Pra 6, Flaite. (90 Sovbuges, Bt ALgutioe;
vhe A Bennett, PiteLurgs & Bealls city, HK
fis Ly, Fernamlilsa; Mee) 8 Thomas. New feteans;

H lum Oren, Peopactla, Fla, W BS Mautell, New
Yura, J. Bupervitie, Itenaacola,

Cao Jewelry Rtove. stoke
Deo you want « wood walub?P
Tw you want diagswudasl
Iho you want eagtaring dua)
ave yuo s watyo thatts tp oscd of rea-

Have you nuy ertiole or do sou want
auythlug lu the jewelry Mune?
em l cunacttoe ueile your patrou-
fas, KUarmoteolog to do as good work, acl]
ay fe xouds, have 2» completa Iine of ele
(Nut watched, dc., os can found in Floe-
fa, aud yuarsnutue to sive satlefaction.
& F. Giuersr,
. 13 Hast Day Bt, Jeukscavillea

Ibtlog us your old Houks to bs rebound.
Chater Bouk tindecy fa sevoad Ww LoLe la the
Meath. bd

Neth» te Kar-Papers,

‘fre slate and ooaaky tax Locke ary now
pea, atl Ube o Hector ia reacy bo ressive
tocue fur the site Lt, aud requmts over
pateou wishloc ta pa taxes to bring wi
thei proper da mad ee ou cithsly propasty.

: J. BE Jousecat
. Tux Ucl Darel Ce,

Oe em eee.

Vitutlug tothe Tinmds Urica. °

me me e ee ee

ber. (isarl’s Bigal@ Merve (ocd le the
gvoutest Gah preductr Ever Ere

eoriiod,

Baking
Powder

Used in Millions of Homes—go Years the Standard

Good as we say thoy
are. Mardly anybod
thinks how rare such
agreement is,
ou see the advertise-

ment In the papers, und,
unless you know us, you
tuke itfor grantedthat you
will have to allow some
discount for shop- keeper's
adjectives. But, no. The
good Qualities are good; the
finest ars the finest; they
are stylish; they are as
g00d us if custom-made;
there isn’t a word tochanyze
between what you think
and we say.
2 It is a comfort to deul
where you get a suit as
luxurious ag you expected.
$10 to $35. BKeleton HMned.

Itis not etrange that we
sell them Bo readily.

Do you kuow that we sell
shirts? No placein the city
lke this for them.

“BATES”

34 WEST BAY STREET

A CHARMING. SITE

-YoOnR-

6]
Couutry Scat, Scathore Clad Basset, Scsits-

rigs er Wister Chaateaqee

Ua the broad St Jobus river. ove haudmd
wad elubty acies cxcolient bigh, Lealthy laad.
with Oak HMasuinwk bled front, sloplog gea-
ty beck, affurdiag ucsurpunsed opportaniiy
fue letdocepe pergoutig, bem and park. The
sod fertile, earruundiogs delizghbtfal, capable
of teaaiify lag tow wecderfeleatent. WliLia
Be wales of the CITY OF JACKSONVILLE,
tive tusliwpatis of Fissida, whlob by roashed by
& B50 toacadasclén! cued, thas giving abax-
Gnst Fectiitiee fu meszketiog, sot all the ed-
Vantage allanidizg prualoliy boa lerge cliy.

Vue onle at a Largalo by

PLORIDA REAL ESTATE EXCHANGE,

ats W. Bay 8:., Mooo & Jachksoarille, Fla

1af Our clothes are ast

i ¢ ines, MN i
mM: Lo
r. Maln and

Wis

HA.

‘a Ygoc
EStove:
Basi, Wlinds, laiats, Wile,
and Rubber Belli,
\ ATER, Ktoain anitina Ful!
fow tn all a branctiems. AL
froplemeutsa, Planet, jr.. Cherite.
Diestun & Hon's Kawa, and the
American Auloesatic

Pre, and Myr. Lnyincering Lir;3t

Merrill-Ste:

-* MECHANICAL

In aud Bisel ¥otgits aud i>
Manner aud at bhurt Notice.

BOILERS, ENGINES AND Ui

Wearematinga railed § od
ATEZEL of WOOD), withoe with.
kewp ve Sauwla full Uue of Builei

SHCOND-HAND £
WHItHe

Offise and Shop 1uuU

ee ee a oo + os

KRaymonc

-—{}A PO:
Jacksonville, Fluric

Sole V4

b.
WHITK HOUK

Iseberg Refri.
Celebrs
We carr
ew li

in shock a fine |:
future dullvery, Unus eoduilug

How

ths Ume tu placs |

aswr's We oi ° }

HARD AND SOFT CO;
Atl

auircs

George

Bac-rnoe tf reigt ©

GROCERLES

West Bay


arene” |

Reversed - 79 SOUTHERN 7313; Affirmed - 86 SOUTHERN 22h,
BLACKWELL, Robert, hanged at Crestview, Florida on July 23, 1920. ran

"Crestview, July 22, 1920-Robert Blackwell, twice convicted of the murder of 'Uncle' Bud |
Davis in the southern part of this county in the fall of 1916, will be hung in the county
jail yard here tomrrow morning unless the governor at the last minute grants a stay of
execution, Ina recent confession at Pensacoloa Blackwell told how and whey the mrder
hasbeen committed, His confession was substantially as follows: Will Blackwell planned
the murder, and his brother Bob, and Will Boyd acted as his accomlices. They secured

_gome shoepolish from a Pensacola store and went to Crestview whencethey walked through the

woods to the home of Mr. and Mrs. Davis, who having $15,000 in a trunk, they intended to
rob, They blackened their faces in order to appear as negroes to the old couple. Bob and
Will Boyd entered the houseto ask for som water, Will remained (on the outside for fear the
Davises would recognize him if he entered, Bob and Boyd demanded the money of Mr, Davis,
who imtead of complying with ‘their demand threatened them with a Winchester. Bob fired
four times 'in self defense', he trio then fled without the money, Will firing a parting
shot into the house before they left, All set out for Crestview, and on arriving there
sent Will into town to get something to eat. ar Blaine started down the track and near
Florala found that officers wereon their track, All threefled for Montgomery after which
Bob returned to Sylacauga and worked for awhile in a mill there, While there Bob received
a telegram from his father tht Will was held for the mrder, A week later he was arrested
due to Will Boyd turning state's evidence, Through fear of his brother, Bob refraindd from
a confession and both planned and executed an escape from the eounty jail in July, 1918,
They were recaptured a short time afterwards and Will died from tuberculosis,"

PENSACOLA JOURNAL, Pensacola, Florida, July 23, 1920 (1/6.)

"The body of Bob Blackwell, who was hanged at Crestview yesterday for the murder, three
years ago, of Mr, and Mrs. Bud Davis in the southern part of Okaloosa County, was received
in Pensacola last night and taken to Robinson's undertaking establishment, Burial will be
arranged today. Blackwell was hanged at 12:2 o'clock and was pronofinced dead 15 minutes
later by Dr. E. Porter Webb, Dr. Mriff and Dr. Adams, Blackwell was taken to the gallows
which was located in the jail.yard, in full view of everybody, at 10:50 o'clock yesterday
morning, He spoke to the 3 or | thousand people for about 20 minutes, repeating, practica-
lly verbatim, the confession he mde in Pensacola on July 15, and which was carried exclu-
sively in the JOURNAL the following day. The condemned man repeated that Will Boyd and
his brother were equally guilty and that his brother had been the ringeleader, Blackwell
insisted that Boyd took part in the killing of Uncle Bud Davis, When Blackwell addressed
the crowd he asked that a collection be taken up to pay for his funeral, Various men in
the crowd adopted the suggestion of Sheriff Whittaker of Escambia County who was assisting
Sheriff Sutton, and $368,70 was collected, After Blackwell's confession, the black cap

was placed on his head and the knot tied. The trap was sprung at 12:42 o'clock and about
15 minutes later he was pronounced dead. : ;

"The upper portign of the scaffold was entirely open, A curtain was placed around the
lower portion, shutting off the view of the last scene, Ah eleventh hour effort to se-
cure a reprieve for Blackwell failed. W. H. Maypoles of Crestview, State Senator-elect

and R-v. W. Se Pritchett arrived in Tallahasseeyesterday morning to urge a reprieve for the ©

condemned man, The principal ground of this last supplication was that Blackwell was the
sole surviving witness against Boby who is charged with complicity in the crime, The
governor called in the members of the pardoning board to consult upon the matter, and after
the MAAMAXKXXAEXHE hearing had been held, it was announced that the request for reprieve
had been denied, A large number of telegrams were received by the governor ugging the
reprieve, ;
"Blackwell was baptized Thursday afternoon by Reve J. E, Curry, a Holiness preacher of
Bonifay. The .customary rites of the Holiness creed were carried out, with about 390 peo-
ple present. The crime flor which Blackwell was hung was committed at about 7 o'clock on
the night of Mar. 21, 1917. Together with his borther, Will, and Boyd, according to his
own confession, Blackwell went to the Davis,home with the intention of robbing the family
of $15,000 which was supposed to have been kept in a trunk in one of the rooms, When the
money was demanded, Uncle Bud drew a Winchester from underneath the mattress of his bed

and threatened Bob and Boyd, who had entered the house while Will remained outside,
Fearing for his life, he said, Blackwell shot old man Datis, Boyd also shot Davis, Black=

BLACKWELL - hanged at Crestview, Fla. = Continued,

and that the Davis' were not killed, but were only scratched, He told us not #o get on the
train, We walked till we got to Lockhart then got on the train and went to Mont gomrye
+here we weht to the barber shop in the depot and got cleaned up good and got rid of the x
sign of thepolish, I went back to Sylacauga and went to work at themills, I learned

that the Davis' were killed and left there, going to work in another mill pretty close by,
"My father wired mthat Will had been arrested for the mrder and asked me to get him the
best lawyer I could find, I was afraid to com to Pensacola and when I left my people

again I went back to Sylacauga. I left there again and had been working at the other mill
about a week when I was arrested. Will threatened that he would kill me if I breathed a |
word to anybody several times and I was afraid of him, I wanted to confess to the whole
crime, but was always afraid that Will would kill me, We began scheming to get away and
discuss@d several plans. Will got one finally that worked out all right and made arrange-
rents for us to get away. Frank Penton brought us the saws one day and he was paid some
money for them, I am not sure but I think it was$l10 a piece, We sawed out and walked away
from thejail. Nobody helped us any in getting away from here at all. We walked out of

town, Phelps was accused and convicted of helping us get away but so far as I know he was
absolutely innocent, I have made up my mind that I am going to hang for the crime and am
getting ready for it. I do not want to go into thenext world knowing that I have liked

all the through and as I have justgot one mre week I am going to get ready to meet God,

I have read in the Bible that a liar shall not enter the kingdom of Heaven and I am getting
ready for the bigger judgment. My case was being considered by the pardon board when the
governor was here the other day and I wanted them to think I was innocent, That was the
reason I did not tell the governor the truth, As they have decided not to help m any I
guess I will be hanged next week and am getting ready for it." PENSACOLA JOURNAL, Pensacola
Florida, 7-16-1920 (1/7)


|

well said. They then fled, and on arriving at the gate Will also fired a shot into the

houseesee" JOURNAL, Pensacola, 7/2/1920 (1/6.)
. ; CONFESSION.

"@T shot Mr. Davis, firing at close range, first once, then twice and then once again, then
Will Boyd fired one time with his .l5 at closerange, I do not know how nor who shot Mrs,
Davis,’ declared Bob Blackwell in the county jail yesterday afternoon,Blackwell is under
sentence to be hanged at Crestview July 23, charged with the murder of the 2 aged people.
The murder was committed nearly ); years ago near Crestview and those charged with the crime
have been fighting ‘supreme court failed to reverse the former decisions of the lower courts
and the pardoning board refused to recommend clemency of lifeimprisonment last week, Black-=
well was visited by the governor just before the board met and at ‘that time denied that he
was guilty of the charges, Upon the leaving the condemned man the governor warned him to
'Bremare to meet his God,* Will and Bob both made their escape from the local county jail
July 5, 1918, and were again arrested soon after the escape. Willedied of tuberchlesis in
the county jail shortly after the recapture, They sawed out of jail with saws Bob stated
were furnished by Frank Penton, 'We left the building in a hurry immediately after the
shooting and did not get any of themoney,' he continued, 'I shot Mr. Davis but had to do
it in self defense, If I had not shot him, he-would have killed me, and I have wished a
thousand times sime then that I had let him kill me then, I was working at Sylacauga and
till sent for me to come ddwn, saying that he had a proposition where we could mke some N
money. He wrote me several letters and finally I agreed to come down, Will Boyd came with
me, When we got to Pensacola Will explaire d the ‘deal to us and told us how easy it would
be ‘to get the money and have no trouble, The old couple had $15,000 in a trunk and we could
get it without hurting anybody and split it, each one of us getting $5,000, Will dold us,.
We got to thinking how easy the money would ‘be mde and we agreed to the proposed robberye
Will said he knew the people well and knew they kept the money in a little trink in their
bedroom, We got some shoe polish from Kress in Pensacola and went to Crestview. We walked
trhough the woods and sand until it seemed we had walked 50 miles, Our feet were sore and
even bleeding. We got to the neighborhood of the house and stopped to rest and wait until
night fall, While waiting we blacked our faces so we would look likenegroes and after dark
we started again, We went a little piece through the woods and Will called.us.to step and
wait until he returned, after showing us where the house wase He left us and stayed away a
little while and then came back and wediscussed the robbery. He left us again and.came back
in about an hour and told us everything was all right and after some going over the robbery
again we went to the house, Will told us to go in-the house and ask for a drink of water and
Boyd and I went in and when we asked for water Mr. Davis told us where the well was and we
went around and got some water. We saw a big fire down in the woods a good piece away from
the house and someone left to go to a telephone to notify the officers at Crestview. We went
pack to the front where Bob was and he told us to go in and demand the trunk from the old peo=
ple, telling us there would be no trouble at all, We did not want to go without him, but he
insisted and said that he was known to the old peeple and they would know him through the
black polish, We finally agreed, We went up to Mn, Davis and demanded that he give us the
little turnk, I told I did not want to hurt him but we wanted that trunk, He pulled a
Winchester from uml erneath the mattress on his bed and started to raise it, I told him not
to shoot for we were not going to harm him and.all we wanted was the trunk, I begged him
not to fire again, that we would hurt him, but he started raising the gun again .and I shot
him to keep him from killing me, the first shot staggered him and he lowered thegun butt
started to-raise it again am I fired two mre shots at him. Then I fired another shot at
him and Will Boyd, who was standing close to me fired at him one time, We had heard Mrs.
Davis telling her husband to shoot us and begging him to kill us, Bat he did not try to shoot
us anymore and I turned and started back towards where Will was. I do not.know who killed
Mrs. Davis and have been trying to figure that out while in jail h re who killed her and
how it was done. Boyd followed clese.behind me and when we got to thegage we found Will.
He turned and fired into the house 1 time and we all fled, We left together, going back
towards Crestview.e When we got close to the town Boyd and I stopped and Will went on to
¢ewn, It was nearly daylight :then.: Will came back to us next day and brought us somthing
to eat and some Coca Cola, That night we left. Boyd and I stayed together.and Will left
us, going to Crestview, We walked on the railroad tracks when we got clear of Crestview
and when we got nearly to Florala Will called to us to wait. He was under a trestle and came

out and-told us that we werewanted for the shooting, He told us deuties were looking for us ”

Fn Hoek 0 ALamp. LE¢FER

Th PLA Thm ES UNION, Lihat BP AWvamt Know
vbout, The Nang (30D f8LACKWELE AT CRESTYTE [LA
Jt Bo wf Thi Cae A SWALL (Bop When & Webrer
ut F UW Gru hou GUY Can Rumean WILL % Ref
On Chen Comer WUnlt Roph, KILLED AFAR WE au Roneher
Beturn CU om Wie EVYIELA, 7 Fey IPoR Ep. thew
Ord Bhs .Foud Rech .A Wamoyn War sin Vell Ake
Lar very, i Barebny 1 ava. AW Chreticety, oY MAMILG Woven
Co Jackin “ber ANorm afl Uso Hoppin, 4 Yor Car
» Famke Ong Intromit Chou Ue 9 “vee Re
% es ee | WESESStoONMS

N14 KLTALISTA SH, Jotervada hig
22265 -

as in the majesty of power,’ is not ‘stare de-
cisis,’ but ‘fiat justitia.’ Let this decision be
right, whether other decisions were right or
not.”

I am much impressed with the force and
wisdom and courage displayed by United
States District Judge Prentiss, in overruling
a former decision;

“An opposite decision -having been recently
pronounced in a neighboring circuit, 1 am now
called upon to re-examine the question; and I
can yery freely say that it is not at all a sub-
ject of regret that an opportunity is thus af-
forded me to review my former opinion, and to
overrule it, if found to rest on mistaken princi-
ples, or unsound reasoning. When Lord Hard-
wicke, having reason to alter his opinion on
a particular occasion, said he was not ashamed
of doing so, for he always thought it a much
greater reproach in a judge to continue in his
error than to retract it, he exhibited an ex-
ample of true wisdom and real elevation of
character, which it would be well for all judges
to take as a guide.” In the Matter of ‘Welman,
20 Vt. 653, Fed, Cas. No, 17,407.

Conceding, however, that the Legislature
intended this act to include criminal as well
as civil cases, it is repugnant to section 11
of the Bill of Rights of our Constitution:

“In all criminal prosecutions the accused shall
have the right * * * to meet the witnesses
against him face to face.” i

This language is so clear ‘and unambigu-
ous as to make the resort to construction, to
change its palpable meaning, not only un-
necessary, but iconoclastic,

In order to sustain the constitutionality
of this act, however, this court seeks and
finds support in decisions that have construed
away the constitutional right of an accused
person, and when it is through all that is
left of what has been always regarded as
a bulwark of defense for a person accused
of crime is that—

“In one criminal prosecution he shall have
the right to cross-examine the witnesses against
him.”

As that is a right that he would have with-
out this constitutional guaranty, its purpose
in the Constitution is by this decision made
perfunctory.

The entire discussion of the majority of
the court, and of those courts that sanction
the nullification of this constitutional pro-
tection, is that this provision of the Consti-
tution is to be limited to such rights as the
prisoner had under the common law. Then
why was it put in the Constitution?

Is it not more reasonable to say that the
framers of the Constitution, being familiar
with the common-law right of a prisoner to
cross-examine the witnesses against him,
wrote this provision, not for the mere pas-

238 86 SOUTHERN REPORTER ‘Pla.

time of expressing that right, but because
they intended a greater right—one very ¢s
sential to the protection of life and liberty—
and they wrote it in the Constitution as
plainly as language is capable of.

The. opinion in this case quotes approving-
ly from the case note to State v. Heffernan,
22S. D. 513, 118 N. W. 1027, 25 L. R. A. (N:
8.) 868, as follows: :

“This latter view is taken by an overwhelm-
ing majority of the courts, but the real basis for
the admission of such testimony seems to be
the necessity for its admission to prevent the
miscarriage of justice, and the instances in
which it is admitted are in reality exceptions to
(sometimes: recognized as such by the court),
rather than compliance with, the rule that the
accused is entitled to be confronted with the
witness against him.”

This extract which is incorporated in the
opinion says that the instances in which
Constitution is not obeyed, are “exceptions
to, rather than compliance with, the rule
that the accused is entitled to be confronted
with the witnesses against him.” 1 again
call attention to the fact that it is not a
“ryle” that we are considering, but a con-
stitutional mandate; this court having
adopted the doctrine that is thus summed
up in the case note, the doctrine of this
case is that the courts and the Legislature
may make exceptions to constitutional in-
hibitions, by designating them “rules.”

In time to come, when the exigencies of
some peculiar condition, or “the. prevailing
morality or strong and preponderant opin-
fon” demands, this case will be cited as au-
thority for disregurding some other consti
tutional mandate, on the ground that ex-
ceptions may be made thereto, |:

In order to sustain: the.. constitutionality
of the statute as applied to criminal cases,
the court has not only to change these words
of the Constitution from “meet the witness-
es against him. face to face’”’ to “cross-exal-
ine them,” but to change the word “all” to
“one,” so that the Constitution will read:

“In one criminal prosecution, the accused
shall have the right to cross-examine the wit-
nesses against him.” -'

The word “all” has so positive and clear
a meaning, and is so comprehensive, that
the exigencies must be very strong to prompt
an attempt to construe it. The defendant
in this case has been prosecuted twice. The
word “all” in the Constitution covers both
prosecutions, but ‘this court says, “No; it
means only one.”

Robert Blackwell is not here complaining
that he was deprived of his constitutional
right in a prosecution where no harm befell
him, but that he was deprived of that right
in the prosecution whereby his life was for-
feited. The answer of this court is:


sai)

fa.)
(86
“Because you were not deprived of your con-
stitutional right in another prosecution, from
which you escaped harmless, you cannot be
heard to complain if you are deprived of that
constitutional Tight in a .prosecution whereby
your life is to be forfeited.” |

Much of the opinion of. the majority of
the court 1s devoted to giving reasons for
its conclusion that the clause of the Consti-
tution that we are considering does not mean
just what it says.

A strict constructionist (a class that is
becoming fewer under onslaughts on the Con-
stitution) does not approve of seeking a rea-
son for constitutional mandates, when they
are plain and unequivocal.. I shall there-
fore not attempt to give reasons why I be-
Heve that the provisions of section 11 of the
Bill of Rights, should be strictly enforced,
but will point out some of the consequences
which must follow, the denial of them.

Under the practice sanctioned by this de-
dsion the jury trying a. prisoner is deprived
of the benefit of seeing and hearing the wit-
nesses. and thereby judging their credibili-
ty. Baggott v. Otis, 65 Fla. 447, 62 South.
362; Baxter v. Liddon, 62 Fla. 428, 56 South.
410.

_ Juries have been known to refuse to render
a verdict against an accused, because some
of: the members would not believe a witness
on account of his demeanor when giving his
testimony. At a subsequent trial of that
cause the testimony of such a discredited
witness, incorporated in a bill of exceptions,
could be used before another jtiry, freed from
the indicia of its falseness.

The reason is advanced that the now rec-
ognized right to admit dying declarations

justifies the construction placed upon sec-

tion 11 of the Bill of Rights by this deci-
sion. There seem to be two fallacies in this
proposition—one, that, conceding that the rule
admitting dying declarations is an abridg-
ment of a constitutional right, it therefore
furnishes a reason for further abridgment;
the other, that only by a strained construc-
tion can it be held that testimony concern-
ing dying declarations comes within the con-
stitutional inhibition under consideration.
Dying declarations do not prove them-
selves, but must be established by witness-
es whom the accused has a right to meet
“face to face.” It is a fiction that calls a
dead man a witness. The witness is the per-
son who is sworn and testifies in court be-
fore the Jury on the trial of the accused ta
certain facts and circumstances, Among
these are dying declarations, statements by
the accused, reports of firearms, groans,

‘screams, footprints, finger prints, etc. These

latter are frequently referred to as “mute wit»
nesses,” but that is figurative rather than le-
gal language. The witness whom a prisoner
has the constitutional right to meet face to

BLACKWELL v. STATE 239
So.)

face is the person who takes the stand and
testifies in court under oath with regard to
these several facts and circumstances. ,

The history of criminal trial furnishes
abundant instances of witnesses testifying
falsely at one hearing, and at a subsequent
trial recanting and telling the truth, or de-
clining to take the stand and repeat their
former false testimony. Under such circum-
stances, if a witness should absent himself,
rather than again testify falsely, his former
false testimony.could be used against the
prisoner.

Section 11 of the Bill of Rights guarantees
other rights to the accused than the one un-
der discussion.

As to one of these guaranties, this court
says that it does not mean that “in all crim-
inal prosecutions” he shall have these rights,
but it is sufficient if he has. enjoyed such
right once. Applying this doctrine to. the
other rights guaranteed by section 11, and
there is no escape from the conclusion, that,
if a prisoner has once had a “speedy” trial,
he cannot be heard to complain if thereafter
he remains. in confinement for an indefinite
period; . that, having once had a “public tri-

al,” the second: trial. need not..be public;

that, having once been tried “in. the county
where the crime was committed, s che may at
the caprice of the state be tried elsewhere;
that, having once been “heard ‘by himself,
counsel, or .both,” he may ‘at a ‘subsequent
trial be deprived of this right. These rights
—to have a speedy trial, a public trial, to be
tried in the county where the crite was com:
mitted, to be heard by himself, or counsel,
or both, to meet the witnesses against him
face to face—are on a parity, and the rea-
soning by which the conclusion is reached
that, having once met the witnesses against
him face to face, the guaranty of the Bill
of Rights has been secured to him, applies
with equal force to each of the other rights
enumerated.

We say that, having once exercised his
right to meet his witnesses against him face
to face, the requirements of the Constitu-
tion have been complied with, and he cannot
demand that right at a subsequent trial. It
follows, therefore, if he has had one public
trial, the second trial may be a star cham-
ber proceeding, and he cannot be heard to
complain, because he has once been granted
the privilege that the Constitution guaran-
tees him; he may be tried by a hostile, par-
tial jury, and cannot be heard to complain
if he has once had a trial by an impartial
jury; he may on a second trial be refused
“compulsory process for the attendance of
witnesses in his favor,” and cannot be heard
to complain if at a former trial compulsory
process was granted him.

This decision does not say this, but it is
the logic of the case,


240 86 SOUTHERN REPORTER

We do not bite so large 4 piece out of the
Constitution at one time, but afford author-
ity to nibble it away piecemeal.

The decision contains copious citations
from text-writers and court decisions to
sustain the doctrine that the supposed pro-
tection afforded by section 11 of the Bill of
Rights is in fact and in law only the idle
iteration of a common-law right, that exX-
isted before the adoption of the Constitution ;
no more, and no less, These and similar de-
cisions, nibbling away constitutional rights,
have had much to do with the scant respect
for the Constitution that is entertained by
many in this country, and arouses lovers of
constitutional government to the necessity
of returning to the Constitution as the foun-
tain and fortress of the rights of persons
and the rights of property, and led the Na-
tional Security League to establish Septem-
per 17th as Constitution Day.

In vain were the ceremonies observed on
that day, in vain were addresses delivered
and papers read urging a back to the Con-
stitution movement, if courts adhere to de-
cisions that destroy its safeguards. One of
the papers prepared for the celebration of |
Constitution Day began with these words:

“In 1875 the famous German historian, Von
Holst, reproached the American people for the
gin of worshipping their own Constitution. His
words sound strange today. ‘From the close
of the century * * * the Constitution has
been the political Bible of the people.’ It is
now 1919, and we are keenly conscious that

ot aA ns PO A

(fia.

would to-day say that our people worship their
Constitution. No leader would complain that
they were compelling him to offer it adoration.
Instead of soft sounds of adoring voices chant-
ing praise, the air is rent with the strident
tones of harsh and hostile criticism. And, a8
we listen, we seem again to catch the accent
of the German tongue, no longer critical, but
exultant: “The worship of the Constitution has
ceased. Its altars are deserted, Its banner
touches the dust. Its adorers. are casting long-
ing eyes after new and strange gods.’ The
taunt stings like the insult of a blow. truth
gives it power; for it is partly true. The love
of our Constitution is fading.”

One courageous decision, ‘refusing to follow
the latitudinarian constructions of the past,
may be the advance guard of a line of deci-
sions overruling those’ that have lightly ig-
nored it, or construed away its solemn guar
antees. It has been well said: | ~ a

“What the courts uphold to-day is not the
measure of what they will uphold to-morrow.
Their entire history shows that courts advance:
with, or a little behind, the advance of civiliza-
tion. One or two of them are a little ahead’
—are leaders.” ,

This court might well have taken a stand
among the leaders—a little in advance—of
a movement that must come if the Consti-
tution is to survive; to get back to a strict
construction of constitutional limitations up-
on the exercise of legislative, executive, and:
judicial powers. : ,

TAYLOR, J., concurs.

conditions have changed. No reputable scholar

Sg arene Dee

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(Fla.

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BLACKWELL, Robert, white, hanged Crestview, FL on 7/23/1920

Fla.) ‘BLACKWELL v. STATE “) 731°

'[2] The fifth assignment of error relates
to the introduction in evidence by the state
of the defendint’s precipe for witnesses and
his insolvency: affidavit. This was objected
to by the defendant on the grounds that it
was “irrelevant and immaterial.” The ef-
fect of the court. overruling: this objection
and permitting the introduction of these pa-
pers was to give the court’s approval to their
relevancy and materiality. The state did not
offer them in evidence for mere pastime,
but because the state attorney thought they
were material and tended to establish the
guilt of the prisoner, and that it was proper
for the jury to consider them in determining
the guilt or innocence of the accused. The
court adopted this view, and permitted them
{introduced in evidence. This was reversible
error. ‘

[3] An insolvent prisoner, who desires to
have witnesses summoned in his behalf, is
required to state in his affidavit of insol-
vency what he expects to prove by them. A
prisoner who is financially able to pay for
his subpcenas is not required to do this. If
the affidavit of insolvency of a prisoner can
be used in evidence ‘against him, he suffers
because of his poverty. A prisoner who is
able to pay to have his witnesses summoned,
not having to disclose what they will testify
to, is not subject to the disadvantage of hav-
ing his failure to call his witnesses used as
evidence against him, and it follows that an
insolvent prisoner is placed in greater jeop-
ardy than one in better financial circumstanc-
es, An insolvent prisoner would thus be de-
nied the equal protection of the laws.

The judgment is' reversed.

'

“TAYLOR and ELLIS, JJ., concur.

WHITFIELD, J. (dissenting). The testi-

‘mony of the victim as to commission of the
offense by force and against her will corrobo-
rated by her complaint against the defendant
at the earliest practicable time and other cir-
cumstances in evidence are sufficient in law
to sustain the verdict; and on the whole
testimony the verdict does not appear to be
against the evidence. See Tully v. State,
69 Fla. 662, 68, South. 934; Doyle v. State,
39 Fla. 155, 22 South. 272, 63 Am. St. Rep.
159. , oa

No harm could reasonably have resulted
to the defendant by the perhaps erroneous
admission in evidence of the precipe and
affidavit of insolvency over the objection that
they were irrelevant and immaterial.

Where a verdict is sustained by the evi-
dence, technical but harmless errors in rul-
ing on the admission or rejection of testt-
mony will not cause a reversal of the judg-
ment. Graham yv.. Holmes, 73 Fla. 85, 74
South. 5; Owens v. State, 65 Fla. 483, 62
South. 651; Gorey v. State, 71 Fla. 195, 71

South. 328. :
While the legal effect of evidence or the

lack of evidence in its relation to a verdict
rendered in a trial may, by appropriate pro-
ceedings, be reviewed by an appellate court,
yet conflicts in competent testimony, the
weight of legal evidence, and the credibility
of competent witnesses are primarily for the
determination of the jury; and where there
is some substantial competent evidence of
all the facts legally essential to support the
verdict, and there is nothing in the record
to indicate that the jury were not governed
by the evidence, a refusal of the trial court
to grant a new trial on the ground of the in-
sufficiency of the evidence to sustain the ver-
dict should not be disturbed by the appellate
court. Graham y.. State, 72 Fila. 510, 73
South. 594; Doyle v. State, supra.

WEST, J., concurs.

(76 Fla. 124)
BLACKWELL et al. v. STATE.

(Supreme Court of Florida. July 27, 1918.)

(Syllabus by the Court.)

1. CriMINAL LAW G€==126(2) — CHANGE OF
VENUE—LOCAL PREJUDICE.

Where it is alleged, in an affidavit of. the
defendant in a criminal case, in support of a
motion for a change of venue, that the defendant
is odious to the people of the county, that the
prejudice against him is very great, and that
a fund had been subscribed to by the citizens
of the county, and collected by a deputy sheriff,
to employ additional counsel to assist in the
prosecution of the defendant, and where two
of the attorneys for the defense swear. that, on
account of the vast and powerful influence of
the sheriff, the people of the county. were
greatly prejudiced against. the defendants, and
that the sheriff had proclaimed his belief in
the guilt of the prisoners, and thereby caused
the people generally to hate and despise the
defendants, and believe them guilty, arid these
allegations are not traversed by the state, it
was reversible error to refuse to grant a change
of venue. :

2. CRIMINAL LAW @=7121—CHANGE orf VENUE
—PREJUDICE OF JUDGE—DISCRETION.

; Where an application for a change of ven-

ue is based on the prejudice of the judge against

the defendants, no discretion is vested in the

judge to hear and determine the question of

whether or not he is prejudiced. ;

3. CRIMINAL LAW @=125—CHANGE oF: VEN-
UE—PREJUDICE OF JUDGE.

Where it is alleged, in an affidavit in sup-
port of a motion for change of venue on the
grounds of the prejudice.of the judge against
the defendant, that the judge “yielded to pub-
lic clamor,’ and called a special term of the
court a short time before the regular term of

the court. would convene, and that in doing this:

he acted “solely at the behest of public senti-

ment,” and that he did this without any other

and further reason than that the “people of

the county demanded speedy justice,” it was

reversible error to refuse the motion.

4. OrermiInaAL Law G==730(1) — CoNnpucT oF
TRIAL—KEMARKS OF COUNSEL.

Remarks made by counsel in the presence
of the jury, which would naturally tend to in-
fluence their minds to the prejudice of the de-
fendants, when. called to the attention of the
court, should be stricken from the record, and
the jury admonished that they should give no

G=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


1566

concluded on direct appeal, “[t]he state’s deal
with Macker was argued as mitigation.” Bo-
lender I, 422 So.2d at 838 n. 6. We agree
with the district court that “the record clear-
ly refutes Bolender’s allegation that his de-
fense counsel was precluded from presenting
nonstatutory mitigating factors,” either ex-
plicitly or implicitly. Bolender, 757 F.Supp.
at 1407. The decision not to introduce the
background evidence was the product of
strategy, not of constraints resulting from a
limiting jury instruction or confusion in Flor-
ida’s capital punishment jurisprudence.

“BL

[27] In several cases, this court has found
Hitchcock errors where the trial judge did
not consider nonstatutory mitigating circum-
stances in sentencing a capital defendant.
See, e.g., Jackson, 931 F.2d at 716. Bolender
contends that the sentencing judge in this
case similarly considered only the mitigating
factors’ enumerated in the Florida death pen-
alty statute. We conclude, however, that the
state courts and the district court below
properly denied this claim on its merits be-
cause the record reflects that, in this case,
the trial court did not limit its consideration
of nonstatutory mitigating evidence in any
way.

Bolender’s contention is belied by the plain
terms of the trial court’s sentencing order.
After discussing each statutory aggravating
and mitigating circumstance in turn, the
court concluded:

There has been no evidence or matters
brought to the attention of this Court in
addition to those [statutory] mitigating
factors enumerated above which would in
any way influence the Court in making a
different conclusion of fact or in making its
decision as to the sentence of this case.

Upon careful consideration, at the time
of the sentencing and during the formula-
tion of the written Order, the inescapable
conclusion of the Court is that sufficient
Ageravating Circumstances exist and that
‘no Mitigating Circumstances exist which

stances under which the murders occurred, I
do not believe that it is at all clear which
individual perpetrated or actually was most

“—

16 FEDERAL REPORTER, 3d SERIES

could possibly outweigh -the Aggravating
Circumstances.

(emphasis added). The court’s order echoes
its comments made at the time Bolender’s
sentence was orally pronounced:

I have reviewed the aggravating circum-
stances in this case and find sufficient of
them to warrant a consideration as to
whether or not there are any mitigating
circumstances, and I, for the life of me,
cannot find a single mitigating circum-
stance on Mr. Bolender’s behalf that would
cause me to but otherwise overrule that
decision, the recommendation made by the
jury in this case.

Despite Bolender’s contention, therefore, the
court did not limit its consideration of miti-
gating factors to those outlined in the death
penalty statute. In fact, it considered all of
the evidence presented.

This case is therefore easily distinguished
from those cases in which we have found a
Hitchcock violation for failure of the trial
judge to consider nonstatutory mitigating cir-
cumstances in fashioning an appropriate sen-
tence. In Jackson, for example, the sentenc-
ing order was almost identical to that at issue
in Hitchcock, referring explicitly to “insuffi-
cient mitigating circumstances as enumerat-
ed in Subsection (7) of ... Section 921.141”
and not to other mitigating factors. 931 F.2d
at 716. Bolender’s sentencing proceeding
was not infected with this error. According-
ly, we conclude that Bolender has failed to
demonstrate a violation of the principles of
Lockett and its progeny in this case.

C.

[28] Even were we able to locate an ar-
guable Hitchcock violation in the record, we
would nevertheless affirm the district court’s
denial of relief under the harmless error
doctrine. Because the Supreme Court has
recently decided that different harmless er-
ror standards are appropriate for direct and
collateral review of state court convictions
and sentences, we discuss this issue briefly.

culpable for any of the crimes. I would say
that based on that fact, it should act or inure to
Mr. Bolender’s benefit.


BOLENDER v. SINGLETARY
Cite as 16 F.3d 1547 (11th Cir. 1994)

and Hitchcock for two reasons. First, he
argues, trial counsel was confused about the
state of the law at the time of trial. And
second, Bolender urges, the restrictive na-
ture of the jury instruction the judge gave
affected (and even controlled) the lawyer’s
decision not to develop nonstatutory mitigat-
ing evidence.” This court has previously
indicated (but has not explicitly decided) that
a habeas petitioner in a capital case is enti-
tled to relief under Lockett and its progeny if
a sentencer is limited in its consideration of
mitigating evidence or if perceived con-
straints affected defense counsel’s under-
standing or efforts. See Booker v. Dugger,
922 F.2d 633, 636 n. 3 (11th Cir.) (suggesting
that, “[i]n addition to the evidence that was
presented but was not considered, evidence
existed that could have been submitted at the
sentencing phase if counsel had not believed
that the law limited him to statutory mitigat-
ing circumstances”), cert. denied, — U.S.
——, 112 S.Ct. 277, 116 L.Ed.2d 228 (1991);
Knight v. Dugger, 863 F.2d 705, 709 (11th
Cir.1988) (Clark, J., concurring) (same con-
clusion). ;

[24] Initially, we reject Bolender’s argu-
ment that confusion in the Florida law ham-
pered his attorney’s efforts. The Supreme
Court had already decided Lockett by the
time of trial in this case. In addition, the
Supreme Court of Florida had conformed
state law to Supreme Court precedent in
Songer v. State, 365 So.2d 696, 700 (Fla.1978)
(per curiam), cert. denied, 441 U.S. 956, 99
S.Ct. 2185, 60 L.Ed.2d 1060 (1979), in which
it held that Florida’s death penalty law did
not, and had never, required that the trial
courts exclude nonstatutory mitigating evi-
dence. Instead, as the court explained in

22. Bolender’s contentions in support of this
claim blur into his arguments for ineffective as-
sistance of counsel, discussed supra, part I]. We
conclude in this section that trial counsel was
not constrained from developing and presenting
nonstatutory mitigating evidence because of the
restrictive jury instructions and law then in
place. In reaching this conclusion, we find it
significant that trial counsel in fact investigated
background evidence in mitigation but decided
against presenting it as a matter of strategy.

23. The cases upon which Bolender relies in argu-
ing the allegedly preclusive effect of Florida law
on defense counsel are inapposite because the
death sentences in question in those cases were

1563

that case, the “construction of Section 921.-
141(6) has been that all relevant circum-
stances may be considered in mitigation, and
that the factors listed in the statute merely
indicate the principal factors to be consid-
ered.” Jd. Thus, the Florida Supreme
Court held that section 921.141(6), as inter-
preted, satisfied the constitutional mandates
enunciated in Lockett. °

This court has acknowledged the confusion
in Florida law surrounding nonstatutory miti-
gating evidence in capital sentencing that
existed in the 1970s, but we have also recog-
nized that the problem was cured in 1978:

In summary, for six years after the Florida
death penalty statute was reenacted in
1972, there was some ambiguity as to
whether a defendant had a right to intro-
duce evidence in mitigation at a capital
sentencing proceeding when the evidence
fell outside the mitigating factors enumer-
ated in the statute.... The confusion was
finally alleviated in Songer v. State,
after the United States Supreme Court
had ruled in Lockett v. Ohio, ... that “the
Eighth and Fourteenth Amendments re-
quire that the sentencer ... not be pre-
cluded from considering, as a mitigating
factor, any aspect of a defendant’s charac-
ter or record.”

Hitchcock v. Wainwright, 770 F.2d 1514,
1516 (11th Cir.1985) (en banc), rev’d on other
grounds sub nom., Hitchcock v. Dugger, 481
U.S. 398, 107 S.Ct. 1821, 95 L.Ed.2d 347
(1987).

The trial and sentencing in this case took
place in 1980, well after the decisions in
Lockett and Songer. Thus, we should pre-

imposed prior to the landmark 1978 decisions in
Lockett and Songer. See, e.g., Booker, 922 F.2d at
634 (adopting state court findings of fact, Booker
v. State, 397 So.2d 910 (Fla.1981)) (sentencing in
1978 prior to Songer); Aldridge, 925 F.2d at
1322 (trial and sentencing in 1975); Knight, 863
F.2d at 759 (Clark, J., concurring) (noting that
“(blecause of the state of the law in Florida at
the time of Knight's trial, defense attorneys could
not anticipate the conflict between the not yet
decided Lockett decision and Florida’s law limit-
ing a jury's consideration of nonstatutory miti-
gating evidence”); Cooper, 807 F.2d at 882-83
(1974 sentencing proceeding). The relevant
point in time for this inquiry is the time of

1564 16 FEDERAL REPORTER, 3d SERIES

sume that counsel was aware of the prevail-
ing law. Such a presumption is unnecessary,
however, because the record in this case
adequately demonstrates that defense coun-
sel was aware of Lockett and Songer at the
time of sentencing and, more importantly,
that he understood the implications of those
decisions. In a _ pretrial motion, defense
counsel cited both cases in arguing that the
mitigating circumstances provision of the
Florida death penalty statute, Fla.Stat.Ann.
§ 921.141, was unconstitutional on its face,
“violative of the mandate of the United
States Supreme Court as expressed in Lock-
ett v. Ohio, ... which requires that the de-
fendant be allowed to present all evidence
relevant to the mitigation of sentence.” Al-
though the trial court denied the motion, it is
apparent that there was no confusion at the
time of sentencing as to the constitutionality
of Florida’s law (as construed by the state
supreme court) and that both the court and

sententing, not the time of the federal appellate
decision on habeas review.

24. The instruction given in the instant case was
substantially the same as the charge that the
Supreme Court rejected in Hitchcock. The Court
in Hitchcock held that the record reflected a
Lockett violation because:

[T]he members of the jury were told by the
trial judge that he would instruct them ‘‘on the
factors in aggravation and mitigation that you
may consider under our law.’”’ He then in-
structed them that “[t]he mitigating circum-
stances that you may consider shall be the
following ...” (listing the statutory mitigating
circumstances).
481 U.S. at 398, 107 S.Ct. at 1824 (citations
omitted). At the beginning of the penalty phase
of Bolender’s trial, the court instructed the jury
that “[aJt the conclusion of the taking of the
evidence and after arguments of counsel, you
will be instructed on the factors in aggravation
and mitigation that you may consider.” Then,
after closing arguments for the penalty phase, the
trial court gave the foiiowing instructions:

The aggravating circumstances which you
may consider are limited to such of the follow-
ing as may be established by the evidence:
[listing statutory aggravating circumstances].

Should you find sufficient of these aggrava-
ting circumstances to exist, it will then be your
duty to determine whether or not sufficient
mitigating circumstances exist to outweigh the
aggravating circumstances found to exist.

The mitigating circumstances which you
may consider, if established by the evidence,

defense counsel fully understood the implica-
tions of Lockett and Songer. -

[25] Bolender’s second contention is that
trial counsel felt constrained in developing
and presenting mitigating evidence at the
penalty phase of Bolender’s trial as a result
of the denial of his pretrial motion. Once the
motion was denied, and once the court indi-
cated at the charge conference for the penal-
ty phase that it intended to use the standard
instructions relating to aggravating and miti-
gating circumstances, Bolender argues, trial
counsel’s efforts were inhibited by what evi-
dence he thought the trial judge would allow
to be introduced (regardless of his under-
standing of the governing law).24 But the
trial court’s ruling did not indicate in any
way that counsel would be prevented from
presenting any mitigating evidence that he
wished. In fact, the ruling was consistent
with prevailing law—which endorsed the in-
troduction of all relevant information in miti-
gation. The court made an open invitation

are these: [listing statutory mitigating circum-
stances].

* If one or more aggravating circumstances
are established, you should consider all the
evidence tending to establish one or more miti-
gating circumstances and give that evidence
such weight as you feel it should receive in
reaching your conclusion as to the sentence
which should be imposed.

These instructions are also identical to those
given in Aldridge; in that case, the court conclud-
ed that ‘“{t]his instruction limited the jury to
consideration of the statutory mitigating circum-
stances.”” 925 F.2d at 1329. In charging the
jury in this case, therefore, the trial court argu-
ably violated the command of Lockett and its
progeny by suggesting that the only mitigating
factors the jury should consider were those enu-
merated in the Florida death penalty statute.

However, ‘‘Hitchcock did not create a per se
rule of reversal when the trial judge gives a
particular instruction. Instead, the Court fo-
cused on the specific facts of the sentencing
proceeding and emphasized that both the judge
and the jury believed themselves to be limited to
statutory mitigating factors.’’ Elledge, 823 F.2d
at 1448-49. In this case, the impressions of the
judge and Bolender’s counsel are relevant: the
record reveals that neither believed themselves to
be so limited. Moreover, Hitchcock had not yet
been decided at the time of Bolender’s trial.
Consequently, we do not accept Bolender’s argu-
ment that the mere similarity in the instructions
can be used as evidence of constraints on his
lawyer.


BOLENDER v. SINGLETARY

1565

Cite as 16 F.3d 1547 (11th Cir. 1994)

for both sides to present evidence at the
penalty phase, and both sides declined.

[26] In addition, as the preceding discus-
sion on the ineffective assistance of counsel
claim demonstrates, Bolender’s trial counsel
was not in fact constrained in developing and
introducing nonstatutory mitigating evidence
at the sentencing proceeding by the trial
court’s position.” At the state evidentiary
hearing on the ineffective assistance issue,
trial counsel testified that he had investigat-
ed nonstatutory mitigating evidence involving
Bolender’s background, but that he made a
strategic decision not to present such testi-
mony after observing the jurors and conclud-
ing that a quick recommendation of life from
the jury would be more influential on the
sentencing judge.”* Significantly, he testified
that he was aware that he could have pre-
sented such evidence:

Q: Did you realize ... that mitigating
circumstances are not limited to the fac-
tors set out in the statute?

25. In support of his contention to the contrary,
Bolender relies almost entirely upon a 1990 affi-
davit from trial counsel staging that, in his view,
“(t]he mitigating factors seemed to be limited to
the ones listed in the statute, and so it did not
seem that there was much mitigating evidence
available to me that was relevant.”” The affidavit
is merely conclusory, however, and it does not
explain his argument at trial or his testimony at
the state court evidentiary hearing.

Our independent review of the record reveals
that trial counsel in fact investigated nonstatuto-
ry background evidence but, instead of introduc-
ing it, elected to argue other nonstatutory miti-
gating circumstances (namely, disparate treat-
ment among codefendants) as a matter of strate-

- gy. As the district court concluded, ‘‘the record
clearly refutes Bolender’s allegation that his de-
fense counsel was precluded from presenting
nonstatutory mitigating factors.’” Bolender, 757
F.Supp. at 1407. Given that state court findings
of fact on this issue are entitled to a presumption
of correctness, we cannot conclude that the dis-
trict court’s finding was clearly erroneous. The
affidavit is too conclusory to lead us to question
that conclusion.

26. Although this hearing did not directly concern
the Hitchcock claim (which had not yet been
asserted by Bolender ), it did address the crucial
issues of what mitigating evidence trial counsel
had been aware of and why he decided against
introducing it. While “‘[t]he mere occurrence of
a full and fair hearing in the state court ... does

not neutralize petitioner’s right to an evidentiary
hearing in federal court,” Meeks, 963 F.2d at
319, this hearing was sufficient to resolve the

A: Yes, Your Honor, I understand that
they are not limited to what is set out in
the statute.

Q: Are you familiar with some of the
Florida case law that says it is proper for
juries in determining whether to recom-
mend life or death to hear testimony about
whether or not the defendant was a good
husband, a good father, a good person?

A: Yes. That would go towards his
humanity. I was aware that I could put on
that type of testimony.

Q: And you knew that the mother and
the sister could testify to that, did you not?

A: Yes, I did.

Furthermore, the defense’s entire argument
at the penalty phase was. based upon a form
of nonstatutory mitigating evidence, namely
the disparate treatment of codefendant
Macker.?? As the Florida Supreme Court

factual issues underlying Bolender’s Hitchcock
claims.

27. Normally, mitigating circumstances are fac-
tors which go to the character of the individual
defendant. Under Florida law, however, the dis-
parate treatment of a codefendant can constitute
a nonstatutory mitigating circumstance in cases
where the defendants are not equally culpable.
See, e.g., Parker v. Dugger, 498 U.S. 308, 315, 111
S.Ct. 731, 736, 112 L.Ed.2d 812 (1991); White v.
Dugger, 523 So.2d 140 (Fla.1988), cert. denied,
488 U.S. 871, 109 S.Ct. 184, 102 L.Ed.2d 153
(1988). Defense counsel’s penalty phase argu-
ment to the jury and pre-sentencing argument to
the judge can both be*read as making this argu-
ment. Counsel argued as follows before the ad-
visory jury:

1 do not think that you can in any kind of
logical order go back and say that the State
can say on the one hand, ‘‘We are going to
reduce the charges from first to second degree
[for Macker],”” without actually really knowing
what occurred, and, on the other hand, tell you
and stand before you and say that Bolender
should be electrocuted for the same charges.

If there is any one consideration you consid-
er, it is exactly what I have told you today, and
I think you will see, as I did, because nobody
knows what went on and nobody knows who
shot and killed and stabbed whom except what
Macker told you.

Following the jury’s recommendation of life, Bo-
lender’s attorney then made a brief argument to

the judge:
Your Honor, the only thing I would like to
say is that because of the nature of the circum-


Southeast
Report

Court Gives Florida Man
Fourth Stay of Execution

fhe Associated Press

TALLAHASSEE, Fla. — A man |

facing execution Saturday was giv-
en his fourth stay in a week just
seven hours before he was sched-
uled to die for the 1983 slaying of
an Orlando woman, court and state
officials said.

Anthony Bertolotti’s execution,
which had been set for 7:01 p.m.
Saturday. immediately was resched-
uled atter Paul H. Roney, the chief
judge of the llth U.S. Circuit Court
of Appeals in Atlanta, extended a
12-hour stav a three-judge panel
had issued Friday afternoon.

The state reset the execution
for 7:01 am. Tuesday, one minute
after the 60-hour extension expires,
according to Jon Peck, a spokesman
for Gov. Bob Martinez.

JOURS GEL Con sti frien

BV SACIT- FF

oF

fitlan
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‘ by rie ican hes

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Florida killer execiiteds,

chair’ peri

pies

bet de Capital Bureau :

TALLAHASSEE: — “Tee than 3

three months after a botched execu-
tion shut down Florida’s death
chamber, Anthony Bertolotti was
electrocuted Friday for stabbing to
death a woman he had raped and
robbed of $30.

The electric chair at Florida State
Prison in Starke appeared to oper-
_,ate normally.

"esd a7 pm 38, was. pronounced ~

at :

“gttee® thie: MY, Ss  Suprenie Court.
‘rejected his Claim that the chair was
“still broken.

It was the first execution in Flor:
ida since the execution of Jesse Taf-

ero on May 4: Smoke and flames:
spewed from the black mask cover- |:
ing Tafero’s face as the execution- |

ers turned the current on and off. In
his attempt to avoid the chair, Ber-
pei had sk ie that Tafero was

ceora%

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OR

to ask you to come down to the
Municipal Justice Building to make an
official statement later, so stay
around.’’

‘With that, Scoggins and Keefe
walked through the garage and into
the kitchen of the house. There,
Scoggins saw shopping bags full of
groceries on the sink counter and torn
bags of groceries scattered over the

‘floor. A handful of gold jewelry,

obviously the victim’s, also lay on the
counter. ‘‘This looks a little strange,”’
he said to'Keefe, pointing to the

' jewelry. ‘‘A sink counter isn’t a

common place to leave stuff like this.”’

‘‘What’s over here?’’ Scoggins
asked, walking to a closed door on the
left side of the kitchen and opening
it.

‘Storage room,”’ Keefe answered.
‘‘Nothing in there but a bunch of
junk.”’

Leaving the kitchen, the investiga-
tors entered the dining room where
Scoggins noted the victim’s shoes,
underwear and pants strewn over the
floor, near the entrance. The two
continued on through the living room
and library to a small dressing and

‘bathroom area at the rear of the house.

On the bloodstained carpeting of the
dressing room, the mutilated, semi-
nude body of Carol Ward lay on its
side, in an almost-fetal position, a
kitchen butcher knife protruding from
the abdomen. Nearby lay the blade
from a similar type of knife and
alongside, its broken-off handle.
Scoggins theorized the killer had had
access to two knives, that the first one
had broken during the attack and the
second one had been used to finish the
job. Besides numerous stab wounds to
the body, there was a massive amount
of trauma to the head and face.
Blood from the stabbing and other
wounds had spattered onto the walls,
the ceiling and the closed area; and

‘. blood-smeared pieces of glass from a

broken beer stein were scattered over
the dressing room vanity-type counter.
**Undoubtedly,’’ Scoggins said,

‘pointing to the broken stein, ‘‘the

weapon used by the killer in inflicting

‘the head and face trauma.”’

The investigators returned to the
outside where Scoggins told evidence
personnel how he wanted the crime
scene processed and what kinds of
photos he wanted taken. After that,
he drove Ward to the Municipal
Justice Building to get a taped
statement. Before setting up for that,
he issued a statewide lookout for
Ward’s car.

On tape, the schoolteacher metho-

14

dically accounted for everywhere he’d
been, everything he’d done and every
person he’d spoken to between the
time he left the Rosemont house in the
early morning ‘and returned there at
5:30 that evening to discover that
Ward had been slain. It all added up
to a routine day; reporting to work,
talking with the principal, teaching
classes, correcting papers and passing
pleasantries with other members of the
school staff. He repeated his ‘earlier
story of how he had discovered his
wife’s body.

When the taping was over, Scoggins

helped the teacher arrange for a place
to stay, then returned to the crime
scene. By this time, it was 11 p.m. He
checked with his evidence technicians;
the taking of photos had been com-
pleted and the initial processing of the
crime scene was nearly finished.
Except for the groceries scattered over
the kitchen floor, technicians had
found no signs of a struggle in the
other rooms of the house. Neither had
they found any signs of forced entry.

‘“Which means,’’ Scoggins theori-
zed, ‘‘that Mrs. Ward was first
surprised by the assailant in the kitchen
and that whoever it was either came into
the house with her or was already
inside waiting when she walked in.’’

He issued strict instructions that
details of the killing not be released
to the news media. ‘‘There are certain
specifics about this case,’’ he explain-
ed, ‘‘that only the killer would know.
We don’t need to alert that person to
the fact that we know them, too. It
would hinder our investigation. At this
point, we have no suspects, no motives
and no witnesses. All we know is that
Ward was killed sometime between
eight-fifty a.m. when her husband left
for work and five-thirty p.m., the time
he returned.”’

Ten minutes later, Dr. Thomas
Hegert, the Orange/Osceola medical
examiner, and an associate arrived at
the crime scene and, during the next
hour-and-a-half, made a preliminary
examination of the body and took
photos for their own use, Hegert
attributed Mrs. Ward’s death to ‘‘a
combination of strangulation and
blood loss caused by numerous stab
wounds.” He also said the victim was
beaten on the head and that the slashes
on her arms indicated she tried to
defend herself from her attacker. He
set the time of death as between 9:00
a.m. and 10 a.m. It was an hour past
midnight when the medical examiner
and his associate removed the body
from the crime scene.

Scoggins followed the two to the

morgue, hoping to be able to get

fingerprints of the killer from the .

victim’s corpse. His efforts failed; too
much time had elapsed. Whatever
prints may have been left by Ward’s
attacker had penetrated the skin and
disappeared inside the body. It was
nearing 3 a.m. when the investigator
returned to the crime scene to make
sure everything was secured. He then
went home and to bed.

Despite the fact that it had been a
long night, Investigator Scoggins was
back at his desk at headquarters at
eight o’clock that morning. He

dispatched other members of the.

homicide division to the Rosemont
area to elicit information from
neighbors in the hope that. someone
had seen or heard something that
might point to a suspect. As for
himself, he decided to start his
personal investigation with step one
— eliminating persons closest to the
victim.

He drove to the junior high school
where William Ward worked to check
out the teacher’s accounting of his
activities and whereabouts on the
previous day. Talks with the principal
and staff members confirmed every-
thing Ward had said; and a check of
the time element that would have been
involved in slipping away from the
school, driving to the Rosemont house,
stabbing his wife to death and getting
back in‘ time for his next class proved
beyond any doubt that it was impossi-
ble for Ward to have been involved in
any way in his wife’s murder. Scoggins
had not had any reason to consider
the teacher a possible suspect in the
first place; he had merely wanted to
start the investigation routinely at
square one.

At 10:30, he went to the morgue to
witness Dr. Hegert’s autopsy. The
medical examiner confirmed his initial
findings as to the cause of death and
added that the victim had also been
raped. Following the autopsy, Scog-
gins entered the two knives used in
the killing into evidence and had so-
me strange hair taken from the vic-
tim’s hand processed. The lab report
on the hair sample proved disappoint-
ing. It contained caucasian head hair,
pubic hair and cat hair. ‘‘It was
apparently grasped from the carpeting
in the dressing room rather than from
the killer’s head,’’ the technician
explained. ‘‘Many people probably
combed their hair in that room and,
as I understand it, Mrs. Ward had both
a cat and a dog. The hair sample has
no value; there’s no telling whom or
what it came from.”’


BERTOLLOTI, Anthony, black, elec. Fla. SP July 27, 1990,,,

' driveway of the one-story, brick-

HE COOLED
~ HIS SEX DRIVE
WITH A CORPSE

by BARBARA STRATTON

or no apparent rhyme or reason, the long arm of murder sometimes reaches into the

least likely of places and claims the most innocent of victims. On Tuesday, September

27, 1983, Rosemont, an affluent residential community in the northwest section of

_Orlando, Florida, became such a place; and Carol Miller Ward, a frail, 46-year-old home-
maker, became such a victim. say

At that time, crime in Rosemont was _ trimmed home where Ward had lived Outside the house, Lieutenant Don
virtually unknown. A string of for six years and, on this day, died. Glass, head of homicide, was talking
robberies in 1982 had unsettled the
complacent retired couples and the
ambitious, career-bent singles who li-
ved there in expensive homes and
lakefront condominiums that sold for
$100,000 and more. But murder? That
was unthinkable.

Such were the thoughts of homicide
investigator Randy Scoggings, of the
Orlando Police Department, as shortly
after 6:30 on this brisk autumn
evening, he pulled his car into the

With great emotional control
husband of the victim testifies
how he came across her body.

with four or five other investigators
and a tall, scholarly looking man with
graying hair, a moustache and wire-
rimmed spectacles. On the periphery,
technicians were going about the
business of organizing equipment to
process the crime scene.

Scoggins reported to his supervisor.
“The communications desk telepho-
ned me at home and told me to come
over here,’’ he said. ‘‘I understand
there’s a dead woman inside.’’

“Right. And I want you to take
charge of the investigation,’’ the
lieutenant said.

ake

_Detective Scoggins examines victim’s stolen ‘Stationwagon.
Killer took the vehicle but left jewelry on the kitchen sink.

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Interviews with Ward’s neighbors,
all of whom were stunned by news of
the slaying, produced information but
no leads. One 28-year-old male
neighbor obtained permission to enter
the Ward house to take the victim’s
14-year-old blind Pekinese dog to his
home to care for it. He said he hadn’t
seen Mrs. Ward’s angora cat since
Monday, which also happened to be
the last day he’d seen Mrs. Ward.

‘‘Mrs. Ward came over on Monday
to have coffee with my mother,’’ the
neighbor said. ‘‘My mom has been sick
and my daughter has epilepsy, and
Mrs. Ward came over frequently to
counsel Mom. She said prayer and a
good diet could help them both. She
was a very kind person; but she wasn’t
well, either. You almost had to keep
reminding her to take care of herself.”’

A woman neighbor expanded on the
state of Carol Ward’s health. ‘‘She was
frail... had suffered with a kidney
ailment for years. But she enjoyed
gardening and particularly cared for
a climbing rose bush on the trellis near
the front door. Visitors to the house
were few, probably due to her health.
I don’t think she would have been able
to fight off an attacker.’’

The questioning of neighbors
continued on a nonstop basis, with
even the slimmest leads commanding
a thorough followup. The only lead
that seemed to hold some promise,
however, came from a woman who
lived about a mile from the Ward
home. She said that early on the
morning of the murder, a black man
walked up to her house, carrying a
rolled-up newspaper. When he rang
her bell, she did not answer the door
but talked to him through an open
window. ‘‘He asked me questions
about the Rosemont area,’’ she said,
‘“but I somehow had a feeling that he
was casing my house. When he left,
he walked toward the part of the
Rosemont subdivision in which the
Ward house is located.”’

Meanwhile, print, and ectronic
news media were giving the Ward
slaying extensive coverage, and for
Scoggins, it paid off. Shortly before
midnight on Wednesday, a communi-
cations officer at headquarters
phoned the investigator at his home
to inform him that Ward’s car had
been found parked in the rear of a
downtown Orlando apartment build-
ing. The window on the driver’s side
was open, and the keys were in the
ignition.

“‘Two residents of the building
heard a news announcer give a
description of the car, along with its

tag number, on tonight’s eleven
o’clock news,’’ the communications
officer reported. ‘‘They remembered
noticing such a car late the day before
but thought at that time that it
belonged to a man who frequently
visited a friend living in the apart-
ments. After hearing the tag number
over TV, they went: outside to check.
The number given by the newscaster
matched the number on the car’s
license plate. ‘They notified us imme-
diately.’’

Hoping that the person who left the
car parked at the rear of the apartment
building might return, Scoggins had
the area staked out. Several officers,
hiding in vantage spots, kept watch on
the car for the rest of the night. When
no one had approached the vehicle by
eight o’clock Thursday morning, the
investigator requested 'the help of a
tracking dog.

The highly trained German She-
pherd picked up a scent from the

‘lI shoot you where you are if

you resist,’ Detective Randy

Scoggins testifies he warned
the fleeing suspect.

- driver’s seat and began following it

easily enough, but the trail ended
within a short distance. ‘‘That
indicates,’’ the dog’s handler said,
“that the person driving Mrs. Ward’s
car either had another car waiting or
lives somewhere in the neighbor-
hood.’’ Scoggins had the car towed to
an undisclosed area to be searched for
fingerprints and other possible
evidence. Nothing of value resulted

' from this search.

During the next ‘several days,
Scoggins continued with the question-
ing of relatives, neighbors and
strangers and searching for a clue of
some kind at the crime scene. No lead
came from these efforts. Ongoing
coverage of the case in the newspapers

and on television and radio dropped
to a.couple of lines of print or a few
brief announcements; and phone calls
from known and anonymous callers
dwindled to almost nothing.

But Scoggins refused to believe the
case might be reaching a dead end.
‘‘Somebody out there knows some-
thing,’’ he kept telling himself. ‘‘I’ve
got to get to that person.’’ With this
belief, he kept on exploring old and
new trails, turning over again every
already-well-turned stone.

At 10:15 a.m. on Monday, October
3rd, Scoggins was at his desk at
headquarters reviewing notes and re-
ports when Officer Jim Bishop, of the
community relations department, call-
ed him on an inter-office telephone.
Bishop coordinated the activities of.
Crimeline, a police department/com-
munity phone-in program that pays up
to $1,000 for information leading to
an arrest or indictment in a felony :
crime...

Bishop ‘spoke quickly. ‘‘I have a
white female on the Crimeline,’’ he
said, ‘‘who suspects that her boyfriend
was involved in the Rosemont murder.
She’s very frightened; I’m afraid she’s
going to hang up. I have someone
trying to keep her on the line.’’

“For God’s sake, keep her talking,’’

- Scoggins said. ‘‘I’ll be right up.”’

Bishop’s office was two flights up.
The investigator bounded up the stairs;
he couldn’t afford to lose a split
second with a slow elevator. Thank-
fully, the caller was still on the
Crimeline when he reached Bishop’s
office. He took over the phone,
introduced himself and put the
woman, who gave her name as Bernie
Webster, at ease.

“I’m not telling you that my
boyfriend did this murder,’’ Webster
said, ‘‘but I am telling you that there’s
some things I can’t understand since
the murder happened. As I say, I don’t
know that he did it, and I really feel
bad even Saris because I love the
guy.’

“Don’ t worry about it,’’ Scoggins
said. ‘‘If he didn’t do it, I’ll be able to -
decide that. And we’re not going to
arrest him just because you think he
might have done it.”’

‘As I say, he may not have done it,
but he’s just really acting strange and
he’s doing these things.’’

‘ Scoggins convinced the woman to
let him pick her up and bring her to
the Municipal Justice Building where
they could talk more comfortably.
After completing this mission, he took

(continued on page 35)
15


us

Condemned killer Anthony
Bertolotti once acted out a
rape scene to explain his
intentions to a deaf mute.

‘‘What have we got that’s been
found out so far?’’ Scoggins asked.

“‘What we’ve got at this point is a
dead woman lying on the floor with a
butcher knife sticking out of her
abdomen. That’s about it. Nothing
else has been found out yet, because
nothing’s been processed. I had the

“scene sealed and held until you could
.get here. Investigator Keefe has made

a preliminary inspection inside the
house with his fellow-investigator,
show you the location of the body.”’

Before Scoggins headed toward the
house with his fellow-investigator,
Lieutenant Glass-introduced the
stranger standing with the group as
William Ward, 48, husband of the
victim. ‘‘Mr. Ward teaches eighth-
grade history at a nearby junior high
school,’’ Glass offered by way of

information. ‘‘He discovered his wife’s
body when he returned from his day
at school at his regular time of
five-thirty.”’

‘‘Briefly fill me in on that,’’
Scoggins said to the teacher.

Ward readily complied. *‘Upon
arriving home,’’ he said, “I noticed
that the garage door was open and that
Carol’s car was not there. That struck
me as a little unusual; she’s always here
when I get home.”’

‘‘What kind of car?’’ Scoggins
asked. :

‘‘A‘nineteen-seventy-three bronze
Ford Torino stationwagon. It has
deeply tinted. side and rear windows;

a

The killer had gone after her
with two knives, thrusting the
first one so hard the handle
broke, leaving the second one
protruding from her abdomen...

the licence tag number is HVA
three-two-five.”’

“Okay, go on,”’

“‘T went into the garage and opened
the door to the kitchen,’’ Ward
continued. ‘‘I saw some groceries on
the kitchen counter; torn bags of
others were scattered over the floor. I
called for Carol and got no answer. I
kept on calling as I searched through -
the other rooms of the house. When I
got to the dressing room, which is a
small connecting room between the
library and the bathroom, I saw Carol,
naked from-the waist down, lying on
the floor. She was covered with blood,
and there was a butcher knife sticking
in her stomach. I touched her leg; it
was cold. I knew then that she was
dead, that there was nothing I could
do for her. I telephoned the police.”’

Scoggins noted that. Ward spoke
evenly. Whatever the school teacher’s
inner emotions, he was managing to
keep them under control.

“‘That’s good enough for now,”’ the
investigator said. ‘‘I’m going to have

(continued on next page)

Death blade was left embedded in 2
woman’s flesh as perverse symbol
, of the killer’s sex power.


738

away, but that a cat got them; she told
him this the next day at dinner time, when
he asked about them. She testified at the
coroner’s inquest that, when Will Blackwell
came home, about half past 7 or 8 that night,
his clothes were wet from a drizzling rain
that' was falling, and that she went into the
room occupied by a man named Babcock to
get him some dry clothing. This she denied
on the trial; but her former testimony was
corroborated by Babcock, who testified that
she came to his room and told him that she
came to get some dry clothing, which was
in there. He said he heard the conversa-
tion at dinner time the next day about the
cat getting the fish; he further testitied
that he heard a man in conversation with
her about 8 or 9 o’clock on the night of the
murder, and the next day, when he heard
Will Blackwell talking, he: recognized his
voice as like that of the person whom he
heard talking the night before. Fannie At-
well testified before the coroner’s inquest to
the same effect as her mother. Both of them
on the trial repudiated their former testi-
mony, and gave most damaging testimony
against the defendant Will Blackwell. About
a-week after the arrest of Will Blackwell,
liza Atwell was locked up on the charge
of being an accessory to the murder, was
kept in jail three weeks and released on bail,
and had not been placed on trial at the time
the Blackwells were tried. Both Eliza and
Fannie Atwell brazenly claimed on the trial
to have committed perjury at the coroner’s
inquest. Fannie Atwell says she swore to
lies because her mother told: her. to do ‘so,
and the mother says that she swore to lies
because Will Blackwell had threatened’ her.
She attempts to justify her alleged perjury
at the coroner’s inquest by saying. that she
did it in “self-defense,” and that she’ was
afraid to tell the truth at the inquest, but
was not afraid on the trial, because Will

Blackwell was in jail and she had protec-

tion. She admits, however, and it is a fact,
that Will Blackwell was in jail at the time
she testified before the coroner. She at-
tempts to reconcile the absurdity of her
reason for changing her testimony by saying
that he told her that the “other boys would
make it bad for her.” There is nothing in
the record to’ show who these imaginary
boys were, nor: that their ability to do her
harm was not as great at the time of the

trial as when she testified at the coroner’s:

inquest.

A, J. Melvin testitied that ne saw Robert
Blackwel! on a railway train at Holts, bound
for Pensacola, about 7:30 p. m. on the night
of the murder, which made it impossible for
him to have been present and participating
therein.

Mrs. Erin Settles testified that Will Black-
well was at her house about 22 miles from
the scene of the murder, the night it was
committed. She and Melvin were arrested
for perjury in the presence of the jury and

79 SOUTHERN REPORTER

‘often openly. resorted to,

(Fila,

before a warrant had been issued for them,

The purpose of these spectacular. arrests
was to discredit : these witnesses witty the
jury. §

Several days after the arrest of Mera:

he had a change of heart, and came back ~

into court and repudiated his former testl-
mony.

Matthew Wilson and Jim Sellars, witness-
es subpenaed for the defendants, were ar
rested and put in jail, charged with being
accessories to the murder. Sellars was kept
in jail until he was taken to court to testl-
fy, when he contradicted the testimony of
Robert Blackwell, who said that ne had oc
cupied a room with Sellars in’ Pensacola on
the night of the murder. Matthew Wilson,
on several occasions while in jail, denied to
the detective, Moore, having seen Will Black-
well after his escape. After being in jall
several days, and holding several conversa:
tions with the detective, he had one with
him and Mr, Sutton, and he says, “They told
me, if I would tell just exactly how it was,
they would turn me out;” and he then went,
into court and testified that he had seen Will
Blackwell and had conversations with him,
in which Blackwell made damaging admij
sions to him, ;

. The method resorted to in this case of put»

ting witnesses in jail on charges of perjury,

or of being accessories to a murder, in or-
der to make them tell the truth, is fraught
with the danger that persons who need this
spur to their veracity may be willing to
swear falsely to saye themselves, Torture —
was anciently applied to prisoners to make —
them confess their guilt, but it is not now
as experience
proves that men will confess to crimes they,
did not commit to free themselves from pala,.
Much more readily will a person in great
fear for, himself implicate another. to Save
himself,

The effect of these arrests was to strike
terror to the hearts of all these persons, and
the vague intangible fear of some imaginary
“boys,” that Eliza Atwell said was her rea
son for committing perjury before the core.
ner, was far less potent than the present
impending danger ‘of a prosecution as a
cessory to a murder, where public sentiment
ran high, and where the terror of such @
situation was accentuated by incarceration
in jail. Eliza Atwell recanted through fear

of something which existed to the same ex-
‘|tent when she testified on both occasions,

and Melvin recanted because of a change
of heart and the promptings of a sensitive
conscience. While moral suasion of a bleed-
ing conscience may perhaps sometimes cause
the wicked to recant, imprisonment and dan-

ger of conviction for ‘perjury, or as acces a

sory to a murder, are much more powerful
influences. ‘In such a plight, Galileo recant:
ed, and the record in this case does not dis
close that Eliza Atwell, A. J. Melvin, and
Matthew Wilson were superior in mind, char

Wla.

say
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eall-
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Fla.) ‘BLACKWELL vy. STATE+ "37

of the class to the fund for the prosecution of
which he was: a.;contributor; but reason
and justice seem to be on the side of the
courts that hold that such a person is dis-
qualified. It was so held in Jackson v. Sand-
man, 64 Hun, 634,18 N. Y. Supp. 894, Res-
publica vy. Richards, 1 Yeates (Pa.) 480, and
State vy. Fullerton, 90 Mo. App. 411. In Com-
monwealth v, Livermore, 4 Gray (Mass.) 18,
the court said:

“We deem it to be our duty, however, to say
that, in our judgment, the members of any asso-
ciation of men, combining for the purpose of
enforcing or withstanding the execution of a
particular law, and binding themselves to con-
tribute money for such purpose, cannot be held
to be indifferent, and therefore ought not to be
permitted to sit as jurors in the trial of a cause

in which the question is whether the defendant

shall be found guilty of violating that law.”

In an early English case it was held that,
when a prosecution was instituted by the
Society for the Suppression of Vice, it was
held that the defendant was entitled to be
furnished with a list of the persons who
were members of the society, so that, on the
call of the panel of the jurors, any one who
admitted he was a member of the society
might be set aside. Reg. v. Nicholson, 8
Dowling, 422, 4 Jurist, 558.

As this precise question, however, is not
involved here, we do not pass on it at the
time. The question now presented, the qual-
ification as a juror of a person who has con-
tributed to a fund to employ an attorney
to assist in the prosecution of the identical
person charged with the offense, is a much
stronger one. A person who employs or con-
tributes money for the employment of, an
attorney to represent one side of a cause,
must necessarily believe in the justice of
that side, which he so greatly desires to have
prevail that he is willing to contribute mon-
ey towards its success, and is not unbiased
or without prejudice. One of the surest tests
of a man’s belief in and devotion to a cause
is his willingness to contribute money for
its success, and it would be a mockery of
justice to permit such a person to insure
that success by serving as a juror in the
cause.

In the case of State v. Moore, 48 La. Ann.
880, 19 South. 285, the court said:

“In the attitude of the contributor, it must
seem difficult to maintain his fitness as a juror
in a case the prosecution of which he has en-
listed his zeal so distinctly manifested by his
money contribution.”

See State vy. Sultan, 142 N. C. 596, 54S. BE,
841, 9 Ann. Cas. 310. See, also, Boyle v.
People, 4 Colo. 176, 34 Am. Rep. 76; Starke
v. State, 17 Wyo. 55, 96 Pac. 148, 17 Ann.
Cas. 222.

A number of veniremen admitted having
subscribed to the fund, and one of them was
permitted to serve on the jury. This was
brought to the attention of the court by the
defendants during the progress of the trial,
by a motion for a mistrial, which was de
nied. A motion for a mistrial was also made

79 SO.—47

on the ground ‘that two.of the jurors, who
had sworn on their voir dire that they had
formed or expressed no opinion of the guilt
or innocence of the accused and could give
them a fair and impartial trial, had stated
that they had kept up with the case, and
that if the evidence was as reported that
they (referring to the defendants) “should
hang, and that they should be convicted.”

' There were about 100 veniremen examined
before a jury was obtained, more than a
third of whom admitted that they had form-
ed or expressed opinions concerning the guilt
or innocence of the accused.

On the examination of venireman A. A.'
Allen, he swore as follows:

“Well, of course, the general rumor of the set-
tlement, the whole case was going against them.
Q. According to the rumor of the settlement,
the whole case was going against them? A. Yes
sir. Q. Well, did you believe the general rumor
of the settlement? A. I had to; it was the gen-
eral rumor. Q. Then you had formed an opin-

ion as to the guilt or innocence of these men?
A. Yes, sir.”

One of the purposes of a motion for a new
trial is to afford an opportunity for the trial
judge to correct any prejudicial error which
he may have committed in the progress of
the trial of a cause. If the judge was not
satisfied from the uncontradicted array of
facts contained in the affidavits offered by
the defendants to show prejudice in the coun-
ty, the developments in the examination of
veniremen, and the matters brought to his
attention during the trial of the cause, were
sufficient to carry conviction that the change
of venue should have been granted, and the
motion for a new trial that contained this
ground was improperly denied.

After a most careful examination of the
testimony, we are unable to say that the
verdict could properly have been found, not-
withstanding the errors that we have dis-
cussed. The nature and character of the
testimony and the conduct of the trial make
it extremely problematical.

Without the testimony of Mrs. Bliza At-
well, the state’s case would have fallen to
the ground, and, even if it be accepted as
true, she does not say that either of the
Blackwells admitted to her that they had
killed the Davises. Her only direct testi-
mony on that point is that Will Blackwell
said to her, “We have killed old man Bud
Davis,” and that she said to him, “Will,
you didn’t do that?’ and he replied, “No,
I didn’t; but the boys did.”

. This witness and her daughter Iannie
testified at the coroner’s inquest and estab
lished a complete alibi for Will Blackwell
She swore that he had been rooming and
boarding with her for a year before the
murder, and was at her home, about 25
miles from the scene of the murder, at an
hour that made it impossible for him to have
been there on that night. She said he ha@é
been away all that day, and brought bach
three small fish, which she cleaned and put


Fla.) ‘BLACKWELL v. STATE: 39

acter, conscience, courage, or morals to the
great astronomer. + orf peraet

Mrs. Erin’ Settles “was subsequently tried
and convicted of. perjury, committed when
testifying for the defendants in this cause.
She did not recant, and subsequently, when
testifying in her own behalf, she stated that,
while she might have been mistaken about
the night when Blackwell was at her house,
she still believed that it was on the’ night
that the Davises were killed. Her convic-
tion was affirmed by this court, and the
writer of this opinion concurred in it, be-
cause the testimony was conflicting and, the
jury having found against her, he ‘was re-
luctant to disturb the verdict. If the rec-
ord in the instant case had been before the
court at the time Mrs. Settles’ case was dis-
posed of, the writer of this opinion would
not have concurred in that judgment.

The record in this case bristles with state-
ments and proceedings prejudicial to the de-
fendants, which in the aggregate amounted
to a denial of such a fair and impartial trial
as ‘every person is entitled to under the
Constitution. :

[10] While we will not ‘tindertake to re-
cite all the improper remarks and proceed-
ings that appear in the record, we will ad-
vert to some of them. On cross-examination,
Sheriff Sutton was asked if he had not re-
peatedly said he would “break their necks,”
to which he replied, “Well, I said, if the law
said so.” . He also volunteered the informa-
tion that he said he “had the evidence.” On
redirect examination the following testimony
was placed before the jury by the assistant
state attorney: 1 re

“Mr. Stokes: Q. You said you thought you
had the evidence to do so?: A.
still think so? A. Yes, sir. Q. You, still think
you have the evidence before the jury? A. Yes,
sir.”

Although there was no objection by ‘the
defense to this opinion of the sheriff that
there was sufficient evidence before the jury
to convict the prisoners, it was so flagrantly
improper that it should have been stricken
by the court of its own motion. But it re-

mained in, and the jury carried with them |"

into the jury room the opinion of the sheriff,
who is a man of great influence in the county,
that there was sufficient testimony before
them upon which to find a verdict of guilty.

[7] On the trial a motion was made to
have the shackles removed from the prisoners
while in the courtroom on trial, and for the
appointment of an elisor to take charge of
them, because of. the bitter feeling of the

sheriff towards them, and their fear of him.’

To this Mr. Stokes objected, announcing in
the presence of the jury: “We want no more
escapes.” At this time there was no testi-
mony before the jury, that Will Blackwell
had escaped, or attempted to escape. When
Will Blackwell testified about being at a
place in the vicinity of the scene of the mur-
der, some time before, Mr. Stokes asked him:

es, sir.  Q. You |:

“Did you tell him.that you were campaign-
ing, when you were working for Mr. Knott?”
We are not without knowledge that dujing
the greater part of 1916 this state had gone
through one of the hottest political contests
that had been waged since the days of re-
construction, and feeling ran high between
the supporters of two contesting candidates
for Governor, one of whom was Mr. Knott.
The fact that Will Blackwell was a sup-
porter of Mr. Knott was twice brought to
the attention of the jury by the assistant
state attorney. It is not necessary to com-
ment on the purpose or possible effect of
twice injecting this into the testimony. Will
Blackwell was asked at whose house he stay-
ed on a certain night after his escape, and he
replied, “I can’t tell, on my friends.” He
was then told by the court, ‘Answer the
question,” to which he replied: “I can’t an-
swer the question. I can’t tell on my friends,
I would rather go to jail, and stay there, be-
fore I would do that.” At another period in
his testimony he again stated: “I told you
I wouldn’t tell on my friends.” The assistant
state attorney then invoked, the aid of the
court to require him to betray his friends,
and the judge replied, “The court can’t do
anything more than put him in jail, and he
is already in jail.” Blackwell then said, “The
jail is his strongest weapon *” and the assist-
ant state attorney said, “No, the strongest
weapon is the gallows.” At another point in
the taking of the testimony, the court, in
overruling an objection by the state to testi-
mony in behalf of the defendants, said, “It
can go in for what it is worth.” This remark
by the court tended to discredit the testimony
ih the minds of the jury. ~~

Robert Blackwell testified that Jim Sellars
occupied a room with him in Pensacola the
night of the murder, and on cross-examina-
tion of the former the assistant state attor-
ney asked him, “Do you know that Sellars
was suspected of being the third man with
you and Will?” and, “Do you know that Sel-
lars had a bad reputation?’ Sellars, after
being incarcerated as an accessory to the
murder, testified in behalf of the state.

In the examination of Will Blackwell, he
was asked by the assistant state attorney:

“Were you in jail for poisoning a man in Ten-
nessee?’”? “Weren’t you in jail fot selling whis-
ky?” “Did you steal that pistol from Mr, A.
F. J. Smith, at Holts?”

Blackwell answered these questions in the
negative, and no testimony was offered by
the state to contradict him, or in support of
the insinuations contained in the questions.

When the physician, who examined Will
Blackwell’s physical condition, testified that
he had only “one lung and that his heart was
bad,” the assistant state attorney said to him,
in the presence of the jury, “You didn’t ex-
amine his conscience, while you were examin-
ing his physical condition?’ This statement,
and one or two other improper ones made by
the assistant state attorney, tending to preju-
dice the jury against the- prisoners, were

—

a
|
|


736 79 SOUTHERN
it. To this remark the court not only gave
its approval by overruling the objection of
the defendants, but he gave it his sanction by
the statement:

“T think it is legitimate argument, after what
has been said by counsel on the other side.”

In the case of Newton vy. State, 21 Fila.

58, this court said:

“If the remarks so made by counsel were
pertinent in argument, they are proper for the
consideration of the jury when they have re-
tired to deliberate upon their verdict.”

The court in that case also said:

“It has been said with truth that the com-
ments and arguments of counsel in the progress
of a trial before a jury are controllable in the
discretion of the Judge who presides; it is how-
ever, a judicial discretion, and if used to the
injury of either, and it so appears properly in
the record, an appellate court may and should
revise and control it.”

[6] The court, in refusing to strike the
remark of the assistant state attorney as to
the existence of a Supreme Court to correct
any error that might be made in the trial
of the cause, in effect told the jury that it
was proper matter for them to consider when
they retired to make up their verdict. Call-
ing this vividly to the attention of the jury
tended to lessen their estimate of the weight
of their responsibility, and cause them to
shift it from their consciences to the Supreme
Court. This court will not shirk that re
sponsibility, but will condemn such a proceed-
ing, and declare that the remark of the as-
sistant state attorney was improper, and the
refusal of the trial judge to strike it from the
consideration of the jury was prejudicial

error,
The eighteenth and nineteenth assignments

of error are predicated upon the admissibili-
ty of evidence.

John Helvenston, a witness for the state,
testified that, about two years before the
Davis murder, a man by the name of Saun-
ders sold three steers to a Mr. Adams; that
Saunders kept a dog, and Will Blackwell
asked him to kill it, so he could go to Saun-
ders’ place. Witness stated that he told Will
Blackwell that he had killed several dogs,
and that he did not much mind killing a no-
account dog. This testimony was clearly ir-
relevant, but was not objected to by counsel
for the defendants when offered. We make
no criticism of counsel for his failure to
object to this testimony as irrelevant. The
record shows that a mass of irrelevant tes-
timony was admitted, to which, in the earli-
er part of the trial, the defense interposed
about 50 objections, and, with the exception
of one or two, they were overruled by the
-court. Such testimony in no wise bore upon
the issue being tried, and served only to in-

cumber the record, and the attorneys for the
defense may have deemed an effort to ex-

clude it unnecessary.

REPORTER (Fla.

To which he replied:

“Well, he sent me a bottle of poison. I sa
poison; he sent it; I couldn’t say what it was. 4

He further testified that Mr. Robert Black-
well gave him what he called “the poison,”
and that he kept the package, and when call-
ed on by the state he produced it, and was
told to show it to the jury. It. was then of-
fered in evidence by the assistant state at-
torney, and Mr. Laird, the counsel for the
defendants, ‘objected to its introduction, and
moved to strike the testimony of the witness
in relation to this transaction as irrelevant”
and immaterial, and because it was not shown
“to have any connection with the Davis
murder, or this case.” The court denied ‘the
motion to strike, and overruled the objection
to the introduction of the bottle in evidence,
and permitted it to be introduced and shown
to the jury. It developed on further ex-
amination of this witness that a young Wo
man lived in the house with old man Saun-
ders and his wife, and it appeared that Will
Blackwell desired to visit her.
[9] The entire testimony of this witness
was improper and irrelevant, and as its pur-
pose and effect was to prejudice the jury
against the prisoners about transactions that
occurred about two years before the Davis
murder, and had no connection with the case,
the court erred in refusing to strike the tes-
timony and permitting the bottle alleged to
contain poison to be introduced in evidence,
The twenty-third assignment of error is
predicated upon the court’s refusal to grant
a new trial, the fifth ground of which was
the denial of the motion for a change of
venue.

We have discussed the showing made by
the defendants in their application for the
change of venue; but.if the court, in the ex:
ercise of its discretion, was not convinced,
from the affidavits offered at the time the
motion was made, that the motion should be
granted, there developed in the course of
the trial strong circumstances in support of
the defendants’ motion, which the court
should have taken into consideration in de
termining this ground of the motion for a
new trial.

[8] In the examination of the jurors it
developed that a fund had been subscribed
by a number of citizens in the county to em-
ploy an attorney to prosecute the case against
these defendants, and that the assistant state
attorney, who conducted the case for the
state, was the person so employed.

While this point was not saved by the
plaintiffs in error, we think the question in-
volved should be decided by this court, as it
may arise in another trial of these defend-
ants. '

There is some conflict of authorities on
whether or not a contributor to a fund to
apprehend and prosecute a certain class of
violators of law is disqualified to sit asa

The witness was then asked this. question ;

“Did he send you anything?”

| juror on the trial of a person for an offense

tr mM ep ee Le

Th he at mt ey

Se
841,
Peop
v. Si
Cas.

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perm
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1572

have been defective, yet he failed to cor-
rect the improper service or file for the
writ prior to trial. By waiting until the
state had rested before seeking the writ,
Bolender improperly sought to disrupt and
delay the proceedings, and the court prop-
erly denied his motion.

Id. at 836.

[40,41] Bolender contends that the trial
court’s action in refusing to issue the writ
deprived him of the right of compulsory pro-
cess as guaranteed by the Sixth Amendment.
The right of the accused to present witnesses
in his own defense is fundamental to the
fairness of the adversary system. Chambers
v. Mississippi, 410 U.S. 284, 302, 93 S.Ct.
1038, 1049, 35 L.Ed.2d 297 (1973). However,
the decision whether to employ the right to
compulsory process in a given case rests with
the defendant, and “[t]he very nature of the
right requires that its effective use be pre-
ceded by deliberate planning and affirmative
conduct.” Taylor v. Illinois, 484 U.S. 400,
410, 108 S.Ct. 646, 653-54, 98 L.Ed.2d 798
(1988).- The Supreme Court has concluded
that “[i]t would demean the high purpose of
the Compulsory Process Clause” to construe
it to exempt defendants from “adherence to
rules of procedure that govern the orderly
presentation of facts and arguments” in the
adversary process. Jd. at 416, 411, 108 S.Ct.
at 656, 654 (holding that exclusion of defense
witness does not violate Sixth Amendment
where defendant failed to comply with dis-
covery rule requiring that witnesses be iden-
tified before trial). Defendants may consti-
tutionally be required to comply with proce-
dural rules governing subpoenas and other
trial functions, the Court said, because
“[l]awyers are accustomed to meeting dead-
lines” and “[rJoutine preparation involves lo-
cation and interrogation of potential witness-
es and the serving of subpoenas on those
whose testimony will be offered at trial.” Jd.
at 415-16, 108 S.Ct. at 656.

In this case, there was nothing constitu-
tionally deficient in the district court’s refus-
al to issue a writ of habeas corpus ad testifi-
candum to secure Thompson’s testimony.
Despite notice, Bolender failed to satisfy the
state procedural rules for service of a sub-
poena. Moreover his petition was untimely,
coming as it did after the state had rested its
case. Cf United States v. Rinchack, 820

3

16 FEDERAL REPORTER, 3d SERIES

F.2d 1557, 1568 (11th Cir.1987) (holding that
“a district court may refuse to issue a writ of
habeas corpus ad testificandwm solely on the
grounds that the petition is untimely’ when
the request was not filed until the trial actu-
ally began). In addition to the untimeliness
of the request, the trial court properly could
have denied the petition for the presence of
Thompson because of the questionable value
of his testimony. Thompson had been adju-
dicated incompetent to stand trial. While
the standard for competency to testify is
more lenient than that for competency to
stand trial, there is doubt as to whether he
could have satisfied either. Furthermore, as
the Florida Supreme Court found, “{a]t the
hearing Thompson’s attorney also informed
the court that his client would invoke his
right to remain silent if called at trial” and
found to be competent. Bolender I, 422
So.2d at 835. Accordingly, the denial of the
petition does not constitute a constitutional
violation entitling Bolender to habeas corpus
relief.

VI.

[42] Finally, we turn to Bolender’s claim
that the trial court’s instructions at the guilt
phase impermissibly directed a verdict for
the state in violation of the Due Process
Clause of the Fourteenth Amendment, and
that appellate counsel rendered ineffective
assistance in failing to litigate this issue on
direct appeal. Bolender’s objection stems
from the fact that the court began its instruc-
tions by telling the jury the following:

These crimes are alleged to have oc-
curred here in Dade County, Florida, be-

tween the 7th and 10th of January, 1980.

There is no argument in this case but
that a homicide did take place on that date
or those dates and that it occurred in Dade

County.

Obviously the balance of the issues are
for your determination.

Bolender contends that these sentences di-
rected a verdict for the State on elements of
the offense and therefore violated the princi-
ples enunciated by In re Winship, 397 U'S.
308, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368
(1970), in which the Court held that due
process requires proof beyond a reasonable
doubt of every fact necessary to constitute
the crime charged.

BOLENDER v. SINGLETARY

1571

Cite as 16 F.3d 1547 (11th Cir. 1994)

an arbitrary or discriminatory result, the
Constitution is not violated, and we will not
second-guess the state courts on a matter of
state law.” Lusk, 890 F.2d at 342. Florida’s
override scheme has been upheld as constitu-
tional precisely because the capital sentenc-
ing scheme “has struck a reasonable balance
between sensitivity to the individual and his
circumstances and ensuring that the penalty
is not imposed arbitrarily or discriminatori-
ly.” Spaziano, 468 U.S. at 464, 104 S.Ct. at
3164; see also Barclay v. Florida, 463 U.S.
939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983).
This court may not second-guess the state
supreme court concerning whether the trial
court complied with the mandates of Tedder;
it is not our function to decide whether we
agree with the advisory jury, on the one
hand, or with the sentencing judge and the
Florida Supreme Court, on the other. F’ran-
cis, 908 F.2d at 704; Lusk, 890 F.2d at 342.
Instead, our review is limited to a determina-
tion of “whether the state’s application of the
override scheme in this case resulted in the
arbitrary or discriminatory imposition of the
death penalty.” Francis, 908 F.2d at 704.
The same constraints govern»our evaluation
of the Florida Supreme Court’s application of
its own rules governing the support needed
for aggravating circumstances.

In this case, nothing in the record suggests
that the application of either the jury over-
ride procedure or the rules against “dou-
bling” of aggravating factors has resulted in
the arbitrary or discriminatory application of
the death penalty. The trial court conducted
the required independent review of the evi-
dence, and it set forth its findings in support
of the death penalty as required. On direct
appeal, the Florida Supreme Court concluded
that the trial court had complied with state
law in both of the areas about which Bolen-
der complains. Bolender I, 422 So.2d at 837-
38. See Lusk, 890 F.2d at 342. Bolender is
therefore not entitled to relief based upon
these arguments, and the district court prop-
erly refused to issue the writ of habeas cor-
pus on these grounds.

V.

[38, 39] In addition, Bolender argues that
his constitutional rights were violated when
the trial court refused to grant his motion for
a writ of habeas corpus ad testificandum to

secure the testimony of his-codefendant, Paul
Thompson. Under Florida law, the issuance
of such a writ, which is used to bring an
incarcerated prisoner to give evidence before
the court, is in the discretion of the trial
court. Moody v. State, 418 So.2d 989, 992
(Fla.1982), cert. denied, 459 U.S. 1214, 103
S.Ct. 1218, 75 L.Ed.2d 451 (1983). On direct
appeal, the Florida Supreme Court found no
abuse of discretion by the trial court in deny-
ing the writ, Bolender I, 422 So.2d at 836,
and the district court below agreed, conclud-
ing that Bolender’s Sixth Amendment right
to compulsory process was not denied by that
decision, Bolender, 757 F.Supp. at 1408. Our
review of the record leads us to agree.

In most cases, the Florida Supreme Court
has explained, the use of the writ of habeas
corpus ad testificandum has been superseded
by statute. Bolender I, 422 So.2d at 835.
And “since habeas corpus is a highly prerog-
ative writ, ... petitions for habeas corpus ad
testificandum, as other petitions for writs of
habeas corpus, should not be granted when
the relief sought can be obtained through
other legal processes.” Jd. The court found
the following relevant facts on direct appeal:

Section 914.001, Florida Statutes (1979),

provides that witness subpoenas in crimi-

nal cases shall run throughout the state,

and section 48.051, Florida Statutes (1979),

specifically allows for service of process on

state prisoners....

In the instant case, Bolender served
Thompson with a witness subpoena at the
facility where Thompson was incarcerated.
Thompson’s attorney moved to quash the
service on the grounds that Thompson had
been adjudicated incompetent and a guard-
ian had been appointed. Under section
48.041, Florida Statutes (1979), his guard-
ian should have been served. The court
reserved ruling on that motion, but Bolen-
der never sought to serve the proper party
or enforce the original subpoena.

Id. Later, during the presentation of his
case, Bolender requested that the trial court
issue a writ of habeas corpus ad testifican-
dum to secure Thompson’s presence as a
witness. The court denied the motion, and

the Florida Supreme Court approved that
decision on appeal.
Bolender was on notice from the [earlier]
hearing that his original subpoena may

It explained: