Antone v. State

• Decision Date: 27 March 1980
• Docket Number: No. 50240,50240
• Citation: Antone v. State, 382 So.2d 1205 (Fla. 1980)
• Parties: Anthony ANTONE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1205

382 So.2d 1205

Anthony ANTONE, Appellant, v. STATE of Florida, Appellee.

No. 50240.

Supreme Court of Florida.

March 27, 1980.

Rehearing Denied May 21, 1980.

Angelo M. Ferlita of Diecidue, Ferlita & Prieto, Tampa, for appellant.

Jim Smith, Atty. Gen., Charles Corces, Jr., Asst. Atty. Gen., Tampa and T. Edward Austin, State's Atty., Jacksonville, for appellee.

PER CURIAM.

The appellant Anthony Antone was convicted of murder in the first degree. The trial judge imposed the death sentence in accordance with the jury's advisory sentence recommendation. We have jurisdiction. ¹

For the reasons expressed, we affirm this contract murder conviction and the imposition of the death sentence.

Our consideration of this cause was delayed by the remand for testimony on an application for new trial relative to an agreement made by the Florida Department of Criminal Law Enforcement (FDCLE) for attorney representation of the principal witness, Haskew, and the payment of $11,500 fee for attorney services. This agreement was unknown to either the prosecutor or defense counsel until this cause was on appeal to this Court. We find the conduct of the FDCLE improper but conclude there was no prejudicial error when we consider the totality of the record.

This murder was committed on the morning of October 23, 1975, when Detective Richard Cloud, a suspended Tampa police officer, was killed at the front door of his home. Antone's conviction was based on the fact that he was the mastermind of this execution slaying, and he directly hired the two men who carried out this contract murder. One of the men Antone hired, Ellis Marlow Haskew, was the primary witness for the state.

Haskew's trial testimony revealed the following material facts of this murder. Upon discharge from Florida State Prison in May, 1975, Haskew returned to Tampa to live and to establish contact with Antone. In September, 1975, Haskew helped Benjamin Gilford to escape from prison, after which he had Gilford went to the Bradenton area to live. Immediately after this escape, Antone advised Haskew by telephone that he was looking for someone to perform five "installations," which Haskew defined as murders. Haskew and Gilford then traveled to Tampa where Antone personally informed Haskew that another man wanted five people killed, including Richard Cloud. Haskew accepted $1,750 in "front money" which was used in part to purchase a used Oldsmobile. In late September, 1975, he went to Antone's house and was given a .32 caliber automatic with an attached silencer to test. Although Antone previously had tested the gun himself, he wanted Haskew to check the effectiveness of the silencer. Haskew fired the gun twice into a rattan couch in Antone's home. After the testing, Antone repacked the silencer with fiber used in air conditioning filters which he stored in a shed behind his house.

In addition to supplying Haskew with the gun, Antone gave him a picture of Cloud and drove Haskew by Cloud's home. Approximately ten days before Cloud's death, Antone asked Haskew to complete his assignment because Cloud was due to testify before a grand jury about matters concerning Antone's friends. Haskew made final preparations for this murder by constructing a cardboard box to conceal the weapon, retesting the gun, which required more packing fiber from Antone, and obtaining ammunition from an outside party. On October 23, 1975, he and Gilford drove past Cloud's home and noticed that only Cloud's car was there. They circled the house, and Gilford left the vehicle. While Gilford entered the house, Haskew drove around the block. When he returned to pick Gilford up, he saw an ashtray fly out of the front door after Gilford. Haskew recalled that Gilford later explained that Cloud had thrown an ashtray or a plant at him as he fired at Cloud. Antone visited Haskew at his apartment later that day, gave him $200 to get Gilford out of town, and drove with Haskew to Gandy Bridge to dispose of the murder weapon in Tampa Bay. Haskew made several trips between Tampa and Miami in the ensuing days and received about $9,000 from Antone in several installments. It was also established that Antone personally received at least $750 for this contract murder.

On February 25, 1976, at approximately 8:30 a. m., Haskew was arrested in Miami. Although he initially denied involvement with the Cloud murder, later that day he admitted his participation and agreed to cooperate with law enforcement authorities. Haskew fully implicated Antone as the person who hired him and Gilford to murder Cloud. He also explained the telephone code arrangement which enabled Antone to determine the number from which Haskew was calling. Upon receiving the code, Antone would return the call to that number from a telephone booth. In cooperation with the FDCLE, Haskew called the appellant at approximately 8:30 p. m. that same day and used the code to have Antone return the call at a pay phone in the FDCLE building in Miami. The appellant Antone had been placed under surveillance at the time and was observed leaving his house and going to a pay phone booth around the corner. A recording made of the return call from Antone was later introduced into evidence.

Approximately an hour and a half later, at 10 p. m. on February 25, 1976, Antone was arrested at his home and taken to the office of the Federal Bureau of Investigation. While at that office, Antone complained of chest pains and discomfort. Antone was taken to the hospital where he was subsequently placed in the coronary care unit. At approximately 1:10 a. m. the following morning, with the approval of the attending physician, FBI agent Arwine entered Antone's hospital room. Arwine testified that "Mr. Antone told me that he was a hundred percent Sicilian and Sicilians do not fink."

In the afternoon of February 26, 1976, a search warrant was issued to search Antone's residence, including any vehicles, curtilages and appurtenances. The warrant sought from the premises "certain evidence, to wit: .32 caliber projectiles, couch, cushions, couch stuffing, and counterfeit currency." The affidavit in support of the warrant stated: (1) Richard Cloud was shot and killed on October 23, 1975, and evidence from the crime scene indicated that the shots fired were from a .32 caliber automatic pistol; (2) Ellis Marlow Haskew had been arrested and had admitted being present at the murder of Cloud by Benjamin Gilford, and that Gilford used a .32 automatic pistol given to Haskew by Antone; (3) prior to giving the pistol to Haskew, Antone tested the weapon by firing it into a couch in the den of his residence, and the fired projectiles were still in the couch, floor, or surrounding walls; (4) at the time of Antone's arrest, the arresting officer had seen a couch in those premises; and (5) Haskew had informed the affiant that Antone kept counterfeit money in the premises, and this appeared to be confirmed in a recorded conversation between Haskew and Antone which was overheard by the affiant.

On February 26, 1976, a search of Antone's premises was conducted in accordance with the warrant at approximately 6:30 p. m. A bullet was recovered from a rattan couch which, when compared with the bullet removed from the left leg of Cloud, was found to have been fired from the same weapon. Identical comparisons were also made with other bullets found at Cloud's home, including spent bullets found on the carpet under the dining room table, beneath the couch, and under the house in a joist. In addition, the search produced blue air conditioning fibers which were seized from a work shed in the rear of Antone's house. Haskew had stated that these fibers were used to pack the silencer. Expert testimony indicated that these seized fibers compared favorably with fibers taken from the screen door at Cloud's house immediately following the murder.

In support of Haskew's testimony, a neighbor testified that he was standing in his carport and heard shots from the direction of Cloud's house. He looked up and saw a car with a driver in it. The engine was running and the passenger door was wide open. A few seconds later a man ran from Cloud's house with a brown cardboard box in his hand, jumped in the car, and sped off. The record further reflects that cardboard fragments were found near the screen door of Cloud's house, and four bullet holes were in the door. Cloud's mother testified that a week prior to her son's death a man whom she identified as the appellant Antone came to Cloud's home asking for him.

Antone testified in his own behalf and denied participation in this murder-for-hire scheme. Counsel for the appellant also presented testimony impeaching Haskew's reputation for truth and veracity. Haskew acknowledged during cross-examination that, with the advice of counsel, he had entered into a plea agreement with the state. Under the agreement Haskew would receive a thirty-five year sentence, and he expected to be eligible for parole in seven to eight years.

The jury returned a verdict of guilty and recommended the imposition of the death penalty. The trial judge imposed the death sentence, finding as aggravating circumstances: (1) Antone had been convicted of two armed robberies which were felonies involving the use of threat of violence to another person; (2) this was a contract murder and therefore committed for pecuniary gain; (3) Antone ordered the execution of Cloud to disrupt and hinder the enforcement of laws; and (4) the murder was particularly heinous, cruel, and vicious. The trial judge found no mitigating circumstances.

While this cause was on appeal, the prosecuting attorney filed a motion to supplement the record which advised this Court that the FDCLE had paid substantial fees to attorneys for Ellis Marlow Haskew and that such information had not been previously known to the prosecuting attorney. In Antone v. State, 355 So.2d 777 (Fla.1978) we remanded this cause to the trial...