Antone v. State, s. 61594

Decision Date28 January 1982
Docket NumberNos. 61594,61621 and 61622,s. 61594
Citation410 So.2d 157
PartiesAnthony ANTONE, Petitioner/Appellant, v. STATE of Florida, Respondent/Appellee.
CourtFlorida Supreme Court

Thomas D. McCoun, III of Louderback & McCoun, St. Petersburg, for petitioner/appellant.

Jim Smith, Atty. Gen., George R. Georgieff, Asst. Deputy Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for respondent/appellee.

PER CURIAM.

We have for our consideration a motion for stay of execution, a petition for writ of error coram nobis asking the Court to grant a new trial on grounds of newly discovered evidence, and an expedited appeal from a denial of two motions for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The factual bases for the coram nobis petition are also included in the grounds of one of the motions for 3.850 relief. This Court originally affirmed the conviction and sentence of death in our decision reported as Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980). A detailed statement of the facts of this case is contained in that opinion. For the reasons expressed, we deny the relief requested and deny the motion for stay of execution.

In this consolidated proceeding, appellant seeks relief claiming (1) newly discovered evidence which assertedly is exculpatory and was withheld by the state in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); (2) the exclusion of certain prospective jurors contrary to the principles of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (3) the warrantless arrest of appellant Antone in his home in violation of the principles announced in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); (4) multiple errors in the original trial; (5) ineffective assistance of counsel; and, (6) the failure of the trial court in the penalty phase to properly instruct the jury concerning the mitigating circumstances it could consider in making its recommendation to the trial judge. The trial court denied relief on the 3.850 motions after a full evidentiary hearing. In that proceeding, counsel for both parties agreed that the trial judge had no jurisdiction of the coram nobis application, that jurisdiction being solely in the Supreme Court of Florida.

The trial court, in denying relief on the issue of newly discovered evidence and on the assertion that the state improperly withheld exculpatory evidence, made the following factual findings:

This Motion was predicated on the testimony of one Robert Bruns. It can be said that Mr. Bruns was the witness that "cracked" the murder of Detective Cloud. One Benjamin Gilford began associating and, for a time, living with Mr. Bruns in Bradenton, Florida. He told Mr. Bruns that he was the person who had actually committed the Cloud murder and that this was but one of a series of murders that he had been hired to commit. It appears that sometime in February of 1976 Mr. Bruns was arrested on a traffic offense. During this incarceration, he made contact with law enforcement officers and reported to them what Gilford had told him. Bruns was asked to assist the F.B.I. and State officials in obtaining more information pertaining to the Cloud murder. To this end he agreed to have electronic monitoring devices placed on his person, home and van. This was done for some three days beginning February 21, 1976. Subsequently, Gilford was arrested and charged with the murder. Thereafter, Ellis Marlow Haskew and Anthony Antone were arrested.

The difficulty began, it appears, after the Governor signed Antone's death warrant. Bruns contacted Attorney Ferlita and in a deposition told Messrs. Ferlita and Nutter that Gilford had told him that while Antone did provide the money after the murder that Antone did not know anything about the Cloud murder until after it had occurred; that when he learned why Victor Acosta had given him this money he became upset and hesitated in making the payment. This deposition was attached as an Exhibit to the Motion filed by Messrs. Ferlita and Nutter wherein they contended that the State had withheld exculpatory evidence from the defense and had violated Rule 3.220(a)(1)(i) in not listing Bruns as a witness pursuant to a defense demand for discovery.

Numerous witnesses testified before me at this hearing, among them Bruns, E. D. Williams of the Tampa Police Department, David Malarney and Jim Blatley of the F.B.I. and Aaron Bowden, the Attorney who prosecuted the case in behalf of the State of Florida.

While continuing to insist that Gilford had told him that Antone did not know anything about the Cloud murder until after it occurred, Bruns readily admitted that he never told any law enforcement official, either State or Federal, of this fact. His testimony was that since his conversations with Gilford were monitored and recorded they must have heard it. Prior to the hearing, copies of the tape recordings were delivered to Messrs. Ferlita and Nutter. From the testimony and representations made to this court it is manifest that the recordings were inaudible. None of the witnesses who testified that they participated in the monitoring of the conversations between Gilford and Bruns could testify that they heard any such conversations primarily because the conversations were difficult to hear while they were monitoring.

Furthermore, Bruns testified that prior to his being equipped with those monitoring devices, he talked with Agent David Malarney of the F.B.I. on February 20, 1976. Agent Malarney testified that on that date and time Bruns told him that Gilford had related to him that Haskew and Gilford were hired to do the shooting by an individual known to Gilford as "Anthony" and that "Anthony" had supplied the murder weapon. While Gilford did not know who Anthony was, he did have his telephone number. Agent Malarney testified that when Gilford was arrested he had on his person a telephone number to an "Anthony" which turned out to be Anthony Antone.

E. D. Williams of the Tampa Police Department also testified that in a conversation with Bruns, Bruns related that Gilford had told him that the murder had been set up by one "Anthony."

Aaron Bowden, the Attorney who prosecuted the case for the State of Florida, admitted that Bruns' name was not placed on any witness list, but stated that there was no malicious purpose behind this. His reasoning was first, that Bruns' testimony while incriminating Antone was inadmissible because rank hearsay; and, second, because he was not aware of any exculpatory or favorable evidence to Antone that Bruns could provide. Bruns' name was apparently listed as a witness in the case against Benjamin Gilford because his deposition was taken on June 2, 1976 by Mr. Richard C. Edwards, Assistant Public Defender, representing Gilford.

Upon these facts, the trial judge ruled as follows:

1. That prior to the trial of Anthony Antone and until such time as Robert Bruns made the above described disclosures to Messrs. Ferlita and Nutter, no State or Federal official was aware of any possible exculpatory or favorable evidence that Mr. Bruns could provide in behalf of the defendant, Anthony Antone; thus neither the precepts of Brady v. Maryland, 373 U.S. 831, 83 S.Ct. 1194, 10 L.Ed.2d 215 nor any of its progeny were violated. Furthermore, I find, in view of the questionable admissibility of Bruns' testimony and in view of the overwhelming evidence produced at defendant's trial, that even if there had been, which there was not, a specific request for this evidence there is no reasonable likelihood that it could have affected the outcome of the trial or sentence. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

2. That while there was a technical violation of Florida Rule of Criminal Procedure 3.220(a)(1)(i), the violation was not wilfull or malicious and the defendant Antone was not harmed nor prejudiced by this violation. Bruns was not used as a witness by the State. The admissibility of his alleged exculpatory testimony is highly questionable and even if it would have been admissible it is patently unbelievable in view of all of the facts surrounding this case. Consequently, as with the alleged "Brady" violation, I find that even if his name had been furnished to the defense under the rules of discovery, there is no likelihood it could have affected the outcome of the trial or sentence.

The trial judge further determined that counsel was reasonably effective, finding:

1. That Anthony Antone was represented by reasonably competent and effective counsel and did in fact receive in preparation of, and during the course of his trial, effective assistance of counsel. In making this finding, I am cognizant that his was a capital case and am considering this fact in my overall determination of this finding. Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981).

2. That his counsel did not render ineffective assistance by virtue of not having requested a change of venue inasmuch as this was a considered decision between attorney and client, Catches v. United States, 582 F.2d 453 (8th Cir. 1978), Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978); nor do I find from the evidence presented or a review of the record that counsel was ineffective with respect to Witherspoon. My perusal of the record discloses that each and every juror that was excused for cause was justifiably excused.

The trial judge concluded by rejecting the contention that the recent United States Supreme Court decision in Payton v. New York, decided four years after Antone's trial, required a reversal for a new trial and by finding that the other contentions were not proper for collateral relief since they dealt with issues which could have been raised on the initial appeal before ...

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  • Antone v. Strickland
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
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    ...Court which affirmed the denial of the motions, denied a motion for stay of execution and petition for error coram nobis. Antone v. State, 410 So.2d 157 (Fla.1982). Petitioner then filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Flor......
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