Downs v. State, No. 73988

CourtUnited States State Supreme Court of Florida
Writing for the CourtBARKETT; SHAW
Citation16 Fla. L. Weekly 55,572 So.2d 895
Docket NumberNo. 73988
Decision Date20 September 1990
Parties16 Fla. L. Weekly 55 Ernest Charles DOWNS, Appellant, v. STATE of Florida, Appellee.

Page 895

572 So.2d 895
16 Fla. L. Weekly 55
Ernest Charles DOWNS, Appellant,
v.
STATE of Florida, Appellee.
No. 73988.
Supreme Court of Florida.
Sept. 20, 1990.

Rehearing Denied Jan. 3, 1991.

Page 896

Barbara M. Linthicum, Public Defender, and David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard E. Doran, Director, Crim. Appeal, Tallahassee, for appellee.

BARKETT, Justice.

In 1977, Ernest Charles Downs was convicted of first-degree murder and conspiracy to commit first-degree murder, and he was sentenced to death. This Court affirmed. Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980). The Court then rejected Downs's collateral attack under Florida Rule of Criminal Procedure 3.850, Downs v. State, 453 So.2d 1102 (Fla.1984), and his first petition for habeas corpus relief. Downs v. Wainwright, 476 So.2d 654 (Fla.1985). Downs filed a second petition for habeas corpus relief based on a substantial change in the law caused by

Page 897

Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). This Court granted relief and remanded for resentencing before a jury. Downs v. Dugger, 514 So.2d 1069 (Fla.1987). Upon resentencing, the trial court followed the jury's recommendation and reimposed the death sentence. We affirm. 1

Evidence presented by the state at the resentencing trial showed that Forrest Jerry Harris, Jr., a Jacksonville bank executive, was shot at a clandestine location in Jacksonville in April 1977. His body was not discovered until August 1977. Medical testimony revealed that Harris had been shot four times in the head and once in the midsection of the body with a .25-caliber gun. Any of the wounds could have been fatal.

The murder resulted from a conspiracy formed by Ron Garelick, who plotted to kill Harris so that he could collect proceeds from an insurance policy. The conspiracy involved at least six people at various times. 2 It started in 1976 with Garelick, John Barfield, Gerry Ralph Sapp, and Huey Austin Palmer. After those individuals failed to kill Harris, Barfield approached Downs on April 18, 1977, and offered him $5,000 to kill Harris. Downs agreed and enlisted the help of Larry Johnson. Barfield subsequently met with Downs and Johnson. Barfield told them that Harris expected a telephone call from a man named Green. On April 23, 1977, Johnson, identifying himself as Green, called Harris and arranged to meet him at the end of a dirt road. There is a dispute among the parties as to what happened next.

Johnson had testified for the state under a grant of full immunity in the guilt phase of Downs's first trial in 1977. Johnson was unavailable to testify in the resentencing proceeding in 1989, so the state read to the jury Johnson's prior sworn testimony. Johnson said that he did not want to kill Harris. Instead, he said, Downs insisted that he call Harris to lure him to meet at the dirt road. Downs drove Johnson to the end of the dirt road, dropped him off, gave him a .45-caliber machine gun, and went to pick up Harris. Downs returned with Harris shortly thereafter, Johnson said. When Harris started talking to Johnson, Downs pulled out a .25-caliber automatic pistol and fired at Harris, Johnson said. Downs stumbled and fell, righted himself, fired three more times, fell into the side of the truck, spun around, fired three times more, and stumbled to the ground. Johnson said Harris staggered and fell. Downs went over to Harris, put the gun to his head, and fired again. Johnson said he and Downs dragged Harris's body to the woods nearby, where they emptied his pockets. Then, Johnson testified, Downs wanted to shoot Harris again, so Downs loaded another shell into his pistol and fired a final shot into Harris's chest. The next morning, Johnson said, he and Downs went to Barfield's house. Downs showed Barfield Harris's driver's licence to prove that he killed Harris. Barfield gave Downs $500 at that time, and later made two more payments of $1,000 and $2,700, respectively.

Johnson's testimony was corroborated in part by various witnesses. Sapp testified that he heard Downs discuss the conspiracy with Barfield. He said Downs remarked that he was going to kill a man for $5,000; that Barfield distrusted Johnson; and that Downs agreed to show Barfield proof of the killing. Investigator Pat Miles and Detective Leroy Starling testified that in 1977 Barfield told them he solicited Downs to do the killing; that Downs agreed to kill Harris for $5,000; and that Downs presented Harris's driver's licence as proof of the murder.

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Downs's defense at the resentencing proceeding focused on establishing that he was not the triggerman and did not deserve the death penalty. Downs testified that Johnson drove him to the dirt road and dropped him off. Downs said he had changed his mind about participating in the murder, so he left the scene and went to the home of his grandmother, Bobbie Jo Michael. When Johnson found Downs at Michael's house later that night, Johnson was carrying Harris's driver's licence and money he took from the body. The next day, he and Johnson visited Barfield who paid Johnson $500 in partial payment for the murder.

Downs offered the testimony of various witnesses to support his theory of penalty defense that Johnson--not Downs--was the triggerman. Barfield testified that on the day after Harris died, Johnson presented Harris's driver's licence as proof of the killing, and Johnson admitted at that time that he was the one who killed Harris. However, Barfield conceded that in his own trial in 1978, he testified that he had no knowledge of Harris's murder. Downs's sister, Darlene Shafer, also testified that Johnson told her he had killed Harris.

Downs introduced character evidence to show that when he was a child, his father drank, beat his mother and the children, and then abandoned the family, leaving Downs, the eldest child, to help care for everyone his father left behind. At sixteen, Downs joined the army. The army discovered that he enlisted while under age, so it relegated Downs to kitchen-type duties. Downs then went AWOL, but eventually was honorably discharged. While AWOL, Downs returned to his family in Kansas, where he committed an attempted robbery and a robbery using a toy gun. He was put on probation, but he was sent to prison for violating probation because he left the foster home where he was living and returned to his mother and grandmother. In prison, Downs earned a high school graduate equivalency diploma and learned some construction skills. After his release in 1970, Downs went to the Jacksonville area where he married his first wife, had a daughter, and worked hard to provide for his family, even after divorcing his first wife. While in prison he helped his daughter to deal with her emotional problems, and he has remained friends with her mother. Several of Downs's former employers and business partners testified that they liked and trusted Downs, and that they would rehire him if he was released from prison. Richard Dugger, Secretary of the Department of Corrections, provided mitigating testimony, which the trial court sealed.

A forensic psychologist, Dr. Harry Krop, testified that Downs was insecure about his manhood and lacked self-respect. His emotional problem surfaced when, around the time of Harris's murder, Downs discovered photographs that revealed his second wife's infidelity and involvement with homosexual activity and pornography. Seeing those photographs "was basically demasculating ... bring[ing] forth a lot of his feelings of inadequacy, which he had a lot from childhood," Dr. Krop said. That caused Downs extreme stress, altering his personality and emotional state, and impairing his cognitive and emotional faculties at about the same time he joined the murder conspiracy. Based on his evaluation of Downs, interviews, and his review of testimony in this case, Dr. Krop concluded that Downs had strong potential for rehabilitation. However, Dr. Krop also concluded that Downs was not suffering from extreme mental or emotional disturbance at the time of the murder, and that he did have the capacity to appreciate the criminality of his conduct.

After hearing all the evidence, the jury voted eight to four to recommend the death sentence. The trial court found three aggravating circumstances: (1) Downs had a prior conviction for a felony involving the use or threat of use of violence; (2) the murder was committed for pecuniary gain; and (3) the murder was cold, calculated,...

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35 practice notes
  • Downs v. Moore, No. SC00-2186.
    • United States
    • United States State Supreme Court of Florida
    • 26 Septiembre 2001
    ...On appeal following resentencing, during which Downs again was sentenced to death, this Court affirmed the sentence. See Downs v. State, 572 So.2d 895 (Fla.1990). The facts in this case are set forth in greater detail in that The procedural history of this case is summarized in our recent o......
  • People v. Dunlap, No. 96SA245
    • United States
    • Colorado Supreme Court of Colorado
    • 8 Marzo 1999
    ...in the crime without failing a polygraph test), cert. denied, --- U.S. ----, 118 S.Ct. 1375, 140 L.Ed.2d 523 (1998); Downs v. State, 572 So.2d 895, 900 (Fla.1990) (holding that the trial court did not abuse its discretion by excluding evidence showing that defendant's co-conspirator, whose ......
  • Shere v. Moore, No. SC00-1960.
    • United States
    • United States State Supreme Court of Florida
    • 12 Septiembre 2002
    ...State, 581 So.2d 121 (Fla. 1991) (codefendant pled guilty to second-degree murder and testified against the defendant); Downs v. State, 572 So.2d 895 (Fla.1990) (codefendant testified against the defendant under a grant of immunity); Brown v. State, 473 So.2d 1260 (Fla.1985) (codefendant pl......
  • Downs v. McNeil, No. 05-10210.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 24 Marzo 2008
    ...AND REMANDED. --------------- Notes: 1. A full discussion of the facts of Downs' underlying conviction can be found in Downs v. State, 572 So.2d 895 (Fla.1990) (Barkett, 2. Downs' attorneys operated as a unit and maintained shared responsibility for the case; therefore, we treat the office ......
  • Request a trial to view additional results
35 cases
  • Downs v. Moore, No. SC00-2186.
    • United States
    • United States State Supreme Court of Florida
    • 26 Septiembre 2001
    ...On appeal following resentencing, during which Downs again was sentenced to death, this Court affirmed the sentence. See Downs v. State, 572 So.2d 895 (Fla.1990). The facts in this case are set forth in greater detail in that The procedural history of this case is summarized in our recent o......
  • People v. Dunlap, No. 96SA245
    • United States
    • Colorado Supreme Court of Colorado
    • 8 Marzo 1999
    ...in the crime without failing a polygraph test), cert. denied, --- U.S. ----, 118 S.Ct. 1375, 140 L.Ed.2d 523 (1998); Downs v. State, 572 So.2d 895, 900 (Fla.1990) (holding that the trial court did not abuse its discretion by excluding evidence showing that defendant's co-conspirator, whose ......
  • Shere v. Moore, No. SC00-1960.
    • United States
    • United States State Supreme Court of Florida
    • 12 Septiembre 2002
    ...State, 581 So.2d 121 (Fla. 1991) (codefendant pled guilty to second-degree murder and testified against the defendant); Downs v. State, 572 So.2d 895 (Fla.1990) (codefendant testified against the defendant under a grant of immunity); Brown v. State, 473 So.2d 1260 (Fla.1985) (codefendant pl......
  • Downs v. McNeil, No. 05-10210.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 24 Marzo 2008
    ...AND REMANDED. --------------- Notes: 1. A full discussion of the facts of Downs' underlying conviction can be found in Downs v. State, 572 So.2d 895 (Fla.1990) (Barkett, 2. Downs' attorneys operated as a unit and maintained shared responsibility for the case; therefore, we treat the office ......
  • Request a trial to view additional results

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