Citations:

Blackwelder v. State, 851 So.2d 650 (Fla. 2003). (Direct Appeal)

Final Meal:
Pizza with cheese, onions, green peppers, ground beef and mushrooms; a salad with lettuce, tomatoes, green peppers, cheese and ranch dressing with a coke. After this final meal, Blackwelder received a 24-hour stay from the governor. The stay was lifted and he was not given a second last meal.

Final Words:
"I'm glad I get to go home. I'm proud to be a Christian, and I thank Jesus for saving me and allowing me to go home. Amen."

Internet Sources:

Florida Department of Corrections

ProDeathPenalty.Com

John Blackwelder pled guilty to the 05/06/00 murder of Raymond Wigley. Both men were inmates at Columbia Correctional Institution at the time of the murder. Blackwelder said that he and Raymond Wigley consented to a sexual encounter together in May of 2000. Knowing that Wigley would badger him for sex, Blackwelder said he devised a plan to murder him. On 05/06/00, Wigley proceeded to Blackwelder’s cell and asked for sex. Prior to the proposition, Blackwelder had hidden several pieces of cord around his bunk so he could restrain Wigley when the opportunity arose. Blackwelder consented to the proposition for sex and tied up Wigley after he had disrobed. Wigley allowed Blackwelder to bind his hands and feet to the bed and to tie a towel around his mouth. Blackwelder positioned himself on top of Wigley’s back and strangled him with a piece of the cord that he had hidden near his bunk. Prior to his death, Wigley was strangled for nearly ten minutes while pleading for his life. Blackwelder then alerted prison authorities about the murder.

Miami Herald

"Inmate who wanted state to kill him is executed," by Ron Word. (Wed May 26, 2004)

Associated Press - STARKE, Fla. - A man who sought out the death penalty by killing a fellow inmate was executed Wednesday after a 24-hour delay. John Blackwelder received a lethal injection at Florida State Prison and was pronounced dead at 6:13 p.m. EDT, said Jacob DiPietre, a spokesman for Gov. Jeb Bush.

Blackwelder, 49, was convicted in the calculated strangling of Raymond Wigley, who was serving a life term for murder. At the time of the slaying, Blackwelder was serving life without parole for a series of sex convictions. He said he killed Wigley and pleaded guilty to first-degree murder so he would be sentenced to die.

His execution was delayed a day after prison inmate William Demler wrote the state attorney general's office to say another inmate told him that yet another inmate confessed to killing Wigley, 39, at Columbia Correctional Institution in May 2000. The Florida Department of Law Enforcement used DNA evidence to disprove the letter, Bush said. "I felt in an abundance of caution that there should be extra work done, which was done overnight," Bush said about three hours before Blackwelder's execution. "That proved to my satisfaction that the accusation was not true." A prison spokesman said Blackwelder chuckled at the delay Tuesday. He was not given a second last meal Wednesday.

"I'm glad I get to go home," he said in his last statement, after being strapped to his death gurney. "I'm proud to be a Christian, and I thank Jesus for saving me and allowing me to go home. Amen." Blackwelder then closed his eyes, but opened them again while being given the lethal injection. He appeared to gasp three times before he stopped breathing.

Outside the prison, about two dozen people had gathered to protest the execution. "I'm opposed to the death penalty," said one, Tom Kisielewski, 45, of Daytona Beach. "I don't think taking a life for a life is the way to go."

Blackwelder said in a media interview Monday he manipulated the state, killing Wigley to ensure he would get the death penalty because he couldn't stand the idea of spending his life in prison without parole, but couldn't commit suicide. "I am sorry for killing Wigley, but to get what I wanted, I had to," he said. Blackwelder said he lured Wigley into his cell with promise of a sex act, then tied him to the bed and killed him as Wigley begged for mercy. Blackwelder also said he was innocent of sexually assaulting a 10-year-old boy in St. Lucie County, which put him in prison for life. Psychologists claimed Blackwelder was a pedophile who had been diagnosed as having impulse control disorder and anti-social personality disorder.

After the Florida Supreme Court turned down his automatic appeal in July, he filed a motion to end the fight against his execution. Blackwelder was the second inmate to die in Florida this year and the 15th to die by lethal injection.

The first 44 executions in Florida, beginning with John Spenkelink in 1979 - Tuesday was the 25th anniversary of that electrocution - were carried out in the state's electric chair. Six of the last 10 executions in Florida were inmates who dropped their appeals to speed up their deaths.

Team Amber Alert (AP)

"Wilmington, North Carolina vigil has creepy tie to Florida killer." (May 26, 2004)

John Blackwelder said he wanted to be executed, but he also revealed he could help a Wilmington group that searches for missing kids. He changed his mind about that offer to help, but isn't wavering from his desire to die. As guitarist sang a solemn song before a large crowd at the CUE Center for Missing Persons annual candle light vigil in Wilmington Tuesday night. Families with lost loved ones unveiled a wall filled with faces of the missing. But this year, the event is caught in the shadow of a convicted killer from Florida.

"As I got to the graphic details of how he murdered these kids I cried," said Monica Caison, director of the CUE Center. She's referring to 49-year-old John Blackwelder, who is on death row for the murder of another inmate. The twist? He actually wanted to die, and sought Wilmington's Monica Caison to help him. "I'm willing to pay my price even though I think the death penalty is wrong," Blackwelder told reporters in Florida.

Blackwelder knew Caison was director of the CUE Center. So he wrote her, claiming he killed some 60 young men now missing before he went to jail. And Blackwelder told Caison something she and many of the other families at the vigil would have been dying to know -- where he hid the bodies of his so-called victims. "There are so many out there missing that could be his victim, we just didn't want to take a chance," Caison said. In return, Blackwelder wanted Caison to make sure he was executed -- a better fate than life in prison. "I'd rather be dead than do that," Blackwelder said.

Blackwelder now admits he lied to Caison. At the last minute, his execution was put off a day. Back in Wilmington, the families of those missing light candles of hope, the same emotion Blackwelder manipulated. "I hope that wherever he's going, he has to answer for what he's done," Caison said. "He's affected a lot of people here." They're people, she says, who, for one night, take comfort in one another and the words of a song... their tormentor, far away, but alive for at least another night.

Miami Herald

"Florida has executed 59 inmates since 1979." (AP May 26, 2004)

Following is a list of 59 inmates executed since Florida resumed executions in 1979:

1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.

2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.

3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.

4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.

5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.

6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.

7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents - Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli - during a 10-day span in 1976.

8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..

9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.

10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.

11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on Apri

l 27, 1975.

12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-y

ear-old son of a University of South Florida professor, Oct. 28, 1973.

13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a "drug house" in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.

14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.

15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.

16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.

17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.

18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.

19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.

20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.

21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.

22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.

23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.

24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.

25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.

26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.

27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.

28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.

29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.

30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.

31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.

32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.

33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.

34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.

35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.

36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.

37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.

38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.

39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.

40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.

41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.

42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.

43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.

44. Allen Lee "Tiny" Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.

45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.

46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.

47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.

48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William "Arnie" Wilkerson, 60.

49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.

50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.

51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.

52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa "Kathy" Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.

53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.

54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.

55. Amos King, 48, executed Feb. 26, 2003, by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.

56. Newton Slawson, 48, executed on May 16, 2003, by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.

57. Paul Hill, 49, executed on Sept. 3, 2003, for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.

58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery raped her and killed her.

59. John Blackwelder, died by lethal injection on May 26, 2004, for the May 6, 2000 slaying of fellow inmate Raymond Wigley at Columbia Correctional Institution. Blackwelder's execution came a day after the 25th anniversary of Spenkelink's execution.

Miami Herald

"Timeline of significant dates in Florida's death penalty history." (AP May 22, 2004)

Significant events in the history of modern executions in Florida:

- 1972: U.S. Supreme Court in Furman v. Georgia rules that state death penalty laws, including Florida laws, are unconstitutional. As a result, the sentences of 95 men and one woman on Florida's death row are commuted to life in prison. State quickly passes a new law.

- 1976: Death penalty reinstated by the U.S. Supreme Court under Gregg v. Georgia.

- May 25, 1979: John Spenkelink executed May 25, 1979, for the murder of Joe Szymankiewicz in a Tallahassee motel room. It was the first use of Florida's electric chair since 1964.

- Nov. 3, 1983: Four years pass before Florida's second modern execution when Robert Sullivan, 36, was put to death for the shotgun slaying of a Homestead hotel-restaurant manager.

- March 15, 1988: Willie Jasper Darden, known as the dean of death row, was executed for the September 1973 shooting of James Turman in Lakeland.

- Jan. 24, 1989: Serial killer Ted Bundy executed for the rape and murder of 12-year-old Kimberly Leach of Lake City. Bundy also faced death for the murders of two Chi Omega sorority sisters in Tallahassee.

- May 4, 1990: Jessie Joseph Tafero, 43, was executed for the February 1976 shooting deaths of Florida Highway Patrol Trooper Phillip Black and his friend, Donald Irwin, a visiting Canadian constable. During the execution, a synthetic sponge placed atop Tafero's head burned, causing flames to shoot up three feet.

- March 25, 1997: During execution of Pedro Medina, flames burst from behind the mask over his face. The flames were again blamed on a sponge catching fire. Medina was executed for the 1982 slaying of a neighbor, Dorothy James, in Orlando. Medina was the first Cuban who came to Florida during the Mariel boat lift to be executed in Florida.

- March 30, 1998: Judy Buenoano, known as the "Black Widow," executed for 1971 poisoning death of her husband, Air Force Sgt. James Goodyear. She was also convicted in the drowning death of her son, who fell from a canoe, while wearing leg braces.

- July 8, 1999: Allen Lee "Tiny" Davis bleeds from nose during execution for 1982 slayings of a Jacksonville woman and her two daughters. After pictures of his swollen and bloody face appear on the Internet, Florida changes its method of execution to lethal injection.

- Feb. 23, 2000: Terry Sims, 58, becomes the first inmate to die by injection. Sims was executed for the 1977 slaying of a volunteer deputy sheriff in central Florida.

- Oct. 9, 2002: Female serial killer Aileen Wuornos executed after dropping appeals for deaths of six men along central Florida highways.

- Sept. 30, 2003: Paul Hill, 49, executed for July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.

- May 25, 2004: Scheduled execution of James Blackwelder, who has dropped all his appeals and is seeking execution for the May 6, 2000, strangling death of Raymond Wigley, a convicted killer serving a life term at Columbia Correctional Institution. Execution scheduled on 25th anniversary of Spenkelink execution.

National Coalition to Abolish the Death Penalty

John Blackwelder, FL - May 25, 6 PM EST

The state of Florida is scheduled to execute John Blackwelder, a white man, for the 2000 murder of Raymond Wigley at Columbia Correctional Institution in Columbia County. Mr. Blackwelder has dropped his appeals in order to expedite his execution.

Mr. Blackwelder testified that he murdered fellow prisoner Mr. Wigley because he did not want to serve his life sentence.

Anti-death penalty activist Abe Bonowitz compared Blackwelder's death wish to "suicide by cop" in which people try to end their lives by doing something to make police shoot them. "This time it's suicide by governor," said Bonowitz, executive director of Floridians for Alternatives to the Death Penalty. If this execution is upheld, Gov. Jeb Bush will be sending the message that prisoners can escape their punishments through the perpetuation of violence. Please take a moment to contact Gov. Jeb Bush and urge him to stop the state-assisted suicide of John Blackwelder.

State v. Blackwelder

Oral Arguments before the Florida Supreme Court

THE LAST CASE ON THE COURT'S DOCKET THIS MORNING BLACKWELDER VERSUS STATE.

GOOD MORNING. MAY IT PLEASE THE COURT. MY NAME IS WILLIAM McCLAIN, COUNSEL FOR JOHN BLACKWELDER. MR. BLACKWELDER IS ASKING FOR ASSISTANCE FROM THE STATE OF FLORIDA TO SUICIDE. HE PLED GUILTY TO THE STRANGULATION MURDER OF WAYNE WRIGLEY, ANOTHER INMATE IN THE COLUMBIA CORRECTIONAL INSTITUTION. MR. BLACKWELDER HAS ACTIVELY BEEN SEEKING THE IMPOSITION OF THE DEATH PENALTY THROUGHOUT THE CASE. HE DID NOT WAIVE A PENALTY PHASE IN A PENALTY-PHASE JURY. THERE WAS A JURY EMPANELED. THEY PROCEEDED TO THE PENALTY PHASE. AGGRAVATING AND MITIGATING CIRCUMSTANCES WERE PRESENTED TO THE JURY AND THE JURY ENTERED A RECOMMENDATION.

WHAT STRUCK ME AS BEING DIFFERENT FROM MANY OTHER CASES, WHERE THE DEFENDANT SORT OF WAIVES OR SAYS I WANT TO DIE, IS THAT, IS IT CORRECT THAT HE TOLD HIS ATTORNEYS THAT HE WANTED THEM TO INVESTIGATE AND PRESENT ANYTHING THEY COULD FIND IN MITIGATION?

YES, YOUR HONOR. THAT'S CORRECT.

AND THAT THE TRIAL COURT, ALSO, NOT ONLY WAS THAT BEFORE THE TRIAL COURT BUT THAT THE TRIAL COURT ORDERED A PRESENTENCE INVESTIGATION AND A PSYCHOLOGICAL EXAMINATION, WHICH THE COURT HAD TO ASSESS IN MITIGATION?

THAT'S CORRECT.

OKAY. SO IT IS DIFFERENT FROM A LOT OF CASES WHERE THE DEFENDANT SAYS, YOU KNOW, NOT ONLY DO I WANT TO WAIVE, DO I WANT TO DIE, BUT I INSTRUCT MY ATTORNEYS TO DO NOTHING.

THAT'S CORRECT. IT IS DIFFERENT IN THAT RESPECT.

SO DOESN'T THAT MAKE THIS MORE, WHY IS THIS JUST AS RELIABLE A SENTENCING PROCEEDING, THEN, AS ANY OTHER CASE, WHERE THE DEFENSE ATTORNEYS VIGOROUSLY ARGUE THE MITIGATION?

WELL, I HAVE PRESENTED FOUR ISSUES THAT I THINK IMPACT THE RELIABILITY OF THE SENTENCING, AND I PRESENT THEM TO THIS COURT FOR CONSIDERATION. THE FIRST ONE HAS TO DO WITH JURY SELECTION. MR. BLACKWELDER WAS ALLOWED AND DID HE SAY ESSENTIALLY ORCHESTRATE THE SELECTION OF A JURY PRONE TO IMPOSE THE DEATH PENALTY. HE, ON THE RECORD, STOPPED HIS COUNSEL FROM CHALLENGING JURORS WHO WERE SUBJECT TO CAUSE OR PEREMPTORY CHALLENGES, BASED UPON THE VIEWS THAT THEY HAD REGARDING THE DEATH PENALTY. IN FACT, DURING THE SPENCER HEARING, HE, IN FACT, ADVISED THE COURT, HE SAID THERE WAS NOTHING IN THE LAW STOPPING ME FROM SELECTING A JURY PRONE TO GIVE ME THE DEATH PENALTY. SO IN THAT SENSE, WE HAVE A JURY THAT, ADDERS AIRLINE PROCESS IN -- ADVERSARIAL PROCESS IN JURY SELECTION HAS BEEN TURNED ON ITS HEAD AND WE HAVE DEATH PRONE, BOTH SIDES SELECT AGO DEATH-PRONE JURY OR ATTEMPTING TO, SO WE DON'T HAVE THE BENEFITS OF THE ADVERSARIAL PROCESS IN SELECTING A FAIR JURY. THAT, I THINK, IMPAIRS THE RELIABILITY OF THE JURY'S ULTIMATE SENTENCING RECOMMENDATION, BECAUSE THE FAIRNESS IN THE PROCESS HAS BEEN --

IS THERE, IN THIS INSTANCE, WERE THERE ANY CHALLENGES FOR CAUSE OR PEREMPTORY CHALLENGES EXERCISED BY THE DEFENSE?

I DON'T REMEMBER THERE BEING ANY, AND CERTAINLY THERE WERE NONE REGARDING THE DEATH PENALTY QUESTION.

AND AS TO THESE TWO PEOPLE THAT YOU HAVE --

FROM MAY HAVE BEEN SOME PEREMPTORY. I DON'T WANT TO MISS SPEAK THAT.

AS FOR THESE -- MISS SPEAK ON THAT.

AS TO THESE TWO PERSONS THAT YOU INDICATED SHOULD HAVE BEEN ELIMINATED FROM THE JURY FOR CAUSE, ISN'T THERE SOME EVIDENCE IN THE RECORD THAT THESE PEOPLE, ALTHOUGH IN FACT THEY INITIALLY DEMONSTRATED SOME HESITATION, DID, IN FACT, INDICATE THAT THEY COULD FOLLOW THE LAW AND INSTRUCTIONS AS GIVEN TO THEM BY THE TRIAL COURT?

THERE WAS SOME INDICATION OF THAT. IT IS MY POSITION THAT THEY WERE EXCLUDEABLE FOR CAUSE, BUT, ALSO, THEY WERE CERTAINLY WITHIN THE REALM OF BEING EXCLUDED USING A PEREMPTORY CHALLENGE BY THE DEFENSE, AND THE POINT HERE IS THAT WE DID NOT HAVE AN ADDERS AIRLINE PROCESS -- AN ADVERSARIAL PROCESS GOING ON IN THE SELECTION OF THE JURY, BECAUSE THE DEFENDANT, HIMSELF, WAS SEEKING A DEATH-PRONE JURY, JUST AS THE STATE MIGHT HAVE BEEN SEEKING A DEATH-PRONE JURY, AND THERE WAS NO INTERVENTION TO PREVENT THAT FROM HAPPENING. IN ALL OF THE CASES WHERE WE HAVE HAD --

SO YOUR ARGUMENT, REALLY, IS THAT IT WAS UP TO THE TRIAL JUDGE TO STEP IN AT THIS POINT, AND SAY ALTHOUGH YOU HAVE NOT EXERCISED A CHALLENGE FOR CAUSE OR A PEREMPTORY CHALLENGE, I AM GOING TO GET RID OF THESE TWO JURORS.

THAT IS NOT ENTIRELY MY ARGUMENT. THAT IS A POSITION. ALL OF THESE CASES WHERE WE HAVE HAD SOMEONE WHO IS SEEKING THE DEATH PENALTY, THERE HAS BEEN, ALL OF THE CASES, THERE HAS ALWAYS BEEN A PROCESS WHERE THE TRIAL COURT HAS TO INTERVENE AS A COUNTERBALANCE, IF YOU WILL. I MEAN, THE DEFENDANT IS TAKING AWAY THE BALANCE OF THE ADVERSARY PROCESS, AND THIS COURT HAS, ON NUMEROUS OCCASIONS, SAID, OKAY, COURT, WE HAVE GOT TO ACCOMMODATE THAT TO MAINTAIN THE RELIABILITY OF THE SYSTEM, SO THERE HAS TO BE A COUNTERBALANCE CREATED. IF THE COURT DID NOT, IF THE COURT DID NOT HERE, STEP IN AND CITE, WELL, LOOK, WE HAVE GOT TO HAVE AN ADVERSARIAL PROCESS GOING ON IN THE JURY SELECTION, BECAUSE HE DIDN'T DO THAT, AT THE VERY LEAST, THEN THE COURT HAS TO TAKE INTO ACCOUNT THAT SENTENCING RECOMMENDATION ISN'T AS RELIABLE AS IT MIGHT HAVE BEEN OTHERWISE IN THE SENTENCING PROCESS. I MEAN -- THERE HAS TO BE A COUNTERBALANCE SOMEWHERE.

IS THERE ANY OBJECTION AT ALL EXERCISED BY THE DEFENSE, HOW DO WE KNOW THAT THESE WERE NOT, IN FACT, EXERCISED FOR THE SAME REASON THAT YOU ARE TALKING ABOUT? I MEAN, WE WANT TO GET RID OF PEOPLE THAT YOU THOUGHT WERE NOT, WOULD NOT FOLLOW THE LAW AS OUTLINED TO THEM BY THE COURT. I MEAN, YOU SAID THAT YOU BELIEVE THAT THERE WERE SOME CHALLENGES EXERCISED, CORRECT?

I BELIEVE THERE WERE, BUT I DON'T RECALL THEM BEING REGARDING THE, YOU KNOW, REGARDING THE ISSUE OF THE IMPOSITION OF THE DEATH PENALTY, AND IN FACT, WE HAVE THE DEFENDANT, HIMSELF, SAYING I STOPPED MY LAWYERS FROM CHALLENGING ANYBODY WHO I THOUGHT WOULDN'T GIVE ME THE DEATH PENALTY, AND THERE WAS AN INSTANCE IN COURT, WHEN THE DEFENSE LAWYER STOOD UP TO MAKE A CHALLENGE, AND THE DEFENDANT CALLED HIM BACK AND THEY HAD APPARENTLY A CONFERENCE AT THE COUNSEL TABLE AND THE LAWYER STOOD UP AND SAID, WELL, MR. BLACKWELDER SAID THIS IS NOT A CHALLENGE, AND HE SAT BACK DOWN, SO THERE IS EVIDENCE IN THE RECORD THAT THIS IS PRECISELY WHAT MR. BLACKWELDER WAS DOING WAS THWARTING THE ADVERSARIAL TESTING PROCESS TO REACH A FAIR JURY, AND MY POSITION IS WE HAVE GOT TO HAVE A COUNTERBALANCE. WHEN WE ALLOW THE DEFENDANT TO MAKE CHOICES THAT IS GOING TO UPSET THE BALANCE OF THE ADVERSARIAL PROCESS, THEN I THINK THE COURT HAS TO STEP FORWARD AND CREATE A PROCEDURE WHERE WE PUT THAT PLACE, THAT BALANCE BACK INTO EFFECT, TO ENSURE THE RELIABILITY OF THE SENTENCING PROCESS, SO HERE, WITHOUT THAT BALANCE IN PLACE, WE HAVE A JURY RECOMMENDATION THAT WE CAN'T BE, WE CAN'T HAVE CONFIDENCE IN IT THAT IT IS AS RELIABLE AS IT SHOULD HAVE BEEN.

WAS THERE ANY JUROR THAT STATED ON THE RECORD, THAT EVEN IF MITIGATING CIRCUMSTANCES OUTWEIGHED THE AGGRAVATING CIRCUMSTANCES, THEY COULD NOT RECOMMEND LIFE?

I DON'T, YOU KNOW, I WOULD HAVE TO REREAD THE RECORD. I DON'T RECALL THAT. THE TWO JURORS --

ISN'T THAT WHAT YOU WOULD HAVE TO SHOW, TO SAY THAT, TO PROVE THAT THE COURT FAILED TO COUNTERBALANCE, IF THERE WAS A JUROR THAT SAID, IF I SAW THE EVIDENCE, AND I SAW MORE MITIGATING THAN AGGRAVATING, I STILL COULD NOT RECOMMEND LIFE, BECAUSE I THINK ALL DEFENDANTS WHO COMMIT MURDER SHOULD BE PUT TO DEATH. DON'T YOU HAVE TO SHOW THAT, IN ORDER TO SAY THAT THE COURT REVERSEBLY ERRED IN FAILING TO COUNTERBALANCE WHAT THE DEFENDANT WAS TRYING TO DO? I DON'T THINK SO, YOUR HONOR. I THINK JERRY McALICETER CAME VERY CLOSE TO THAT POSITION. HE DID SIT ON THE JURY. HOWEVER, MY POSITION HERE IS THAT THEY DON'T HAVE TO MEET A CAUSE CHALLENGE CRITERIA ON FACTS OF THIS CASE.

NOW WHAT YOU ARE SAYING IS THE JUDGE HAS TO EXERCISE A PEREMPTORY CHALLENGE THAT THE JUDGE, IF YOU WERE COUNSEL, WOULD SAY, WELL, I REALLY DON'T WANT THIS PERSON SITTING AS A JURY IF I WERE A DEFENDANT AND THEREFORE I AM GOING TO EXERCISE THE DEFENDANT'S PEREMPTORY CHALLENGE FOR HIM. WOULDN'T WE BE GOING EVEN FURTHER THAN WE HAVE EVER GONE BEFORE, LIKE "STAR TREK", IF WE RULED THAT WAY?

I AM NOT SUGGESTING THAT THE COURT EXERCISE A PEREMPTORY CHALLENGE, BUT IN THIS RECORD ONCE IT BECAME APPARENT, WHICH IT DID VERY EARLY ON IN THE JURY SELECTION PROCESS, THAT MR. BLACKWELDER WAS THWARTING HIS DEFENSE COUNSEL, AND THAT WAS A PULL BACK FROM THE ADVERSARIAL PROCESS. THAT WAS A CHOICE THE DEFENDANT WAS MAKING THAT WAS GOING TO POTENTIALLY UPSET THE ADVERSARIAL BALANCE. ONCE THAT BECAME APPARENT, WHICH IT DID IN THIS CASE VERY EARLY, THEN THE COURT, AT THAT POINT, NEEDS TO FASHION A COUNTERBALANCE.

AND WHAT IS THE COUNTERBALANCE?

WELL, I THINK IN THAT INSTANCE, HE SHOULD HAVE SAID MR. BLACKWELDER, WE ARE GOING TO HAVE SOME ADVERSARIAL TESTING AS TO WHO THE APPROPRIATE JURORS ARE TO SIT ON THE CASE. IF WE ARE GOING TO HAVE A JURY, WE ARE NOT GOING TO ALLOW THE JURY TO BE SELECTED BY TWO PROSECUTORS, AS OPPOSED TO A PROSECUTOR AND DEFENSE, BECAUSE --

AND THEN AFTER HE TELLS MR. BLACKWELDER THAT, THEN WHAT DOES THE JUDGE DO?

AT THAT POINT --

WHAT DOES THE JUDGE HAVE TO DO?

AT THAT POINT, I THINK THE ATTORNEYS WOULD SELECT THE JURY.

WHICH THEY DID IN THIS CASE.

THEY DID SELECT THE JURY, BUT IT WAS APPARENT THAT THE ATTORNEYS WERE ALLOWING MR. BLACKWELDER TO COMPLETELY MAKE THE CALLS, AND HE WAS MAKING CALLS TO ENSURE DEATH-PRONE JURIES, WHICH IS UPSETTING THE FAIRNESS OF THE JURY SELECTION PROCESS.

IF WE ARE SAYING THE COURT HAS TO ALLOW THE DEFENSE ATTORNEY TO ACT AGAINST HIS CLIENT'S WISHES, WOULD HE NOT LATER HAVE AN INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENT, SAYING I SPECIFICALLY INSTRUCTED MY CLIENT TO DO THIS, AND HE REFUSED TO DO IT. MY COUNSEL. I AM SORRY. TO DO THIS AND HE REFUSED. HE DID NOT FOLLOW MY INSTRUCTIONS, AND I HAVE A CONSTITUTIONAL RIGHT TO GOVERN WHAT HAPPENS IN THIS TRIAL AND INSTRUCT MY DEFENSE COUNSEL WHAT TO DO.

AND THERE IN THAT CONSTITUTIONAL RIGHT VERSUS THE STATE'S INTEREST IN THE RELIABILITY OF THE DEATH SENTENCING PROCESS THERE, IS THE TENSION. THERE IS A RUB. THERE IS THE BALANCE POINT. I AM HERE TODAY AGAINST THE WISHES OF MY CLIENT. HE DIDN'T WANT THIS APPEAL. THIS COURT HAS SAID I, UNDER CLOCOT, THAT THERE IS AN AUTOMATIC APPEAL PROCESS, WHETHER YOU WANT IT OR NOT, AND YOU ARE GOING TO HAVE A LAWYER HERE CREATING THE RELIABILITY OF THE PROCESS, TO ENSURE THIS COURT OF THE REAL OF THE PROCESS -- THE RELIABILITY OF THE PROCESS. WE HAVE DONE THE SAME THING BELOW, WHERE WE HAVE REQUIRED THE JUDGES, WE HAVE ALLOWED, WE HAVE REQUIRED THE JUDGE TO SAY ORDER PRESENTENCE INVESTIGATIONS, HAVE PROFFERS OF MITIGATING FACTORS PRESENTED TO THEM TO ENSURE THE RELIABILITY OF IT, AGAINST DEFENDANT'S WISHES.

SO IT SEEMS TO ME THAT YOUR ARGUMENT LEADS US TO MAKING THE TRIAL JUDGE, IN ESSENCE, BE PART OF THE DEFENSE TEAM, AND AND I AM JUST NOT SURE THAT WE SHOULD BE TAKING THAT KIND OF STEP.

WELL, THE OTHER, I AM SUGGESTING ANOTHER REMEDY. IF THE JUDGE IS NOT GOING TO INTERVENE IN THE JURY SELECTION PROCESS TO SOME DEGREE, IF THE COUNTERBALANCE IS NOT GOING TO BE PLACED IN THE JURY SELECTION PROCESS, ITSELF, IN A CASE LIKE THIS, THEN, PERHAPS THE COUNTERBALANCE HAS TO COME WHEN THE JUDGE IS MAKING HIS SENTENCING ANALYSIS. HE HAS TO TAKE INTO ACCOUNT, RATHER THAN AUTOMATICALLY GIVING THIS JURY RECOMMENDATION GREAT WEIGHT, AS THE LAW ALLOWS HIM TO DO, HE HAS TO TAKE INTO ACCOUNT THE FACT AND THE MANNER IN WHICH THE JURY WAS SELECTED AND PERHAPS NOT, AND THAT NEEDS TO BE PART OF HIS ANALYSIS.

IS THERE ANY EVIDENCE IN THE RECORD THAT, ABSENT THE DEFENDANT'S INSTRUCTING, THE DEFENSE COUNSEL WOULD HAVE EXERCISED ANY PEREMPTORY CHALLENGES OR CHALLENGES FOR CAUSE THAT HE COULDN'T DO BECAUSE OF THE DEFENDANT'S INSTRUCTIONS?

WELL, I HAVE POINTED OUT IN THE BRIEF, WHERE COUNSEL STOOD UP TO MAKE A CHALLENGE, AND HE WAS STOPPED BY MR. BLACKWELDER, HAD A CONFERENCE WITH MR. BLACKWELDER AND THEN TOLD THE COURT THAT MR. BLACKWELDER TELLS ME THAT THIS IS NOT A CHALLENGE.

IS THAT A PEREMPTORY OR A FOR-CAUSE?

I THINK HE WAS ABOUT TO MAKE A CAUSE CHALLENGE, BUT THEN, OF COURSE, THE JUROR WOULD HAVE BEEN SUBJECT TO A PEREMPTORY, IF THE CAUSE CHALLENGE HAD BEEN DENIED, SINCE THOSE, THE VIEWS REGARDING THE DEATH PENALTY WOULD BE VALID FOR EITHER TYPE OF CHALLENGE, SO HE WAS, AND THEN MR. BLACKWELDER, HIMSELF, DURING THIS SPENCER HEARING, ADVISED THE COURT, WELL, THAT IS EXACTLY WHAT I DID. AND I HAVE QUOTED THAT PORTION IN THE ARGUMENT.

CHIEF JUSTICE: YOU HAVE GOT SOME OTHER ISSUES.

YES. I WILL MOVE ON QUICKLY TO THE TWO OTHER ISSUES. THE SECOND ISSUE DEALS WITH THE JUDGE'S SENTENCING ORDER. THE COURT, AFTER THE JURY RECOMMENDATION, THE JUDGE ASKED THE STATE AND THE DEFENSE TO SUBMIT PROPOSED SENTENCING ORDERS. THE PROSECUTOR SUGGESTED THAT SENTENCING IN RANDOM WOULD BE MORE APPROPRIATE AND HE SUBMITTED A SENTENCING IN RANDOM, AS DID THE DEFENSE. IF YOU WILL LOOK AT THE PROSECUTOR'S SENTENCING -- SENTENCING MEMORANDUM, AS DID THE DEFENSE, AND IF YOU WILL LOOK AT THE PROSECUTOR'S SENTENCING MEMORANDUM, YOU WILL FIND THEY ARE IDENTICAL WORDING.

YOU SAID THERE WERE THREE ISSUES THAT THE LEGISLATURE DIDN'T PROPOSE.

YES. AFTER THE SENTENCING MEMORANDUM, THEY CAME UP WITH A SENTENCE OF MORTON, WHICH SUGGESTS THAT ANTISOCIAL PERSONALITY DISORDER WAS, IN FACT, AN ADDITIONAL CIRCUMSTANCE. HE DID ADD IN SOME TESTIMONY OR SUMMARY OF TWO PSYCHOLOGISTS WHO EXAMINED MR. BLACKWELDER. IT WASN'T IDENTICAL IN EVERY RESPECT. THERE WERE SOME OTHER POSITIONS.

THE STATE ARGUED THAT, UNDER THE PRIOR FELONY AGGRAVATOR, WAS SUPPORTED BY A CAPITAL FELONY AND TEN OTHER FELONIES, WHEREAS THE JUDGE ONLY FOUND SEVEN OTHER FELONIES, RIGHT?

THAT MAY BE CORRECT, YES.

SO HE DIDN'T EXACTLY, YOU KNOW, COPY WORD FOR WORD, THE STATE'S MEMORANDUM.

IN ESSENCE, THERE WERE SOME ADDITIONS, AND THERE WERE SOME CHANGES. BUT THE BULK OF THE SENTENCING ANALYSIS IN THE ORDER IS A VERBATIM RECITATION OF THE PROSECUTOR'S SENTENCING MEMORANDUM. NOW, YOU KNOW, THE JUDGE'S SENTENCING ORDER, I MEAN, IS A FUNDAMENTAL AND STRUCTURAL PART OF THE WHOLE DEATH SENTENCING PROCESS, AND IT IS REALLY, I THINK, HAS THREE PURPOSES. I MEAN, ONE OF THEM IS TO DISCIPLINE THE JUDGE'S ANALYSIS DURING A DECISION-MAKING PROCESS. THE PROCESS OF WRITING TO DISCIPLINE HIS ANALYSIS IN MAKING THAT DECISION. SECOND WOULD BE THAT THE ORDER SHOULD, THEN, BE A REFLECTION OF WHAT THE JUDGE'S ANALYSIS AND INDEPENDENT ANALYSIS, TRULY IS, AND THEN THAT GIVES A FOUNDATION FOR THIS COURT TO REVIEW THE SENTENCE, AND FACILITATE --

WHAT IS WRONG WITH WHAT THE JUDGE DID HERE, SO LONG AS IT IS AN OPEN PROCESS, AND THE JUDGE, THEN, DOES SELECTIVELY USE, FOR INSTANCE, PARTS OF THE REASONING OF EITHER SIDE? IT WOULD BE, LIKE, IF THERE IS AN APPELLATE OPINION, WHERE ACTUALLY, THE APPELLATE COURT FEELS THAT THE EXPRESSION OF A VIEW IN ONE OF THE BRIEFS JUST REALLY GOT IT RIGHT, IN TERMS OF HOW THE COURT IS GOING TO INTERPRET THE LINE OF CASES OR WHATEVER, AND THEN SAYS THAT WE FEEL THAT THE APPELLANT'S BRIEF SETS IT OUT JUST AS IT IS, AND AS LONG AS THE COURT IS DOING THAT OPENLY AND ISN'T JUST A COMPLETE INC., WHAT IS WRONG WITH -- INCORPORATION, WHAT IS WRONG WITH THAT?

I THINK THAT IS NOT NATURE FAITHAL TO THE ORDER -- FATAL TO THE ORDER IN THOSE CASES, SELECTING SENTENCING MEMAND UPS. IN THIS CASE, I THINK -- REALM AND YOU MEANS. IN -- MEMORANDUMS. I THINK IN THIS CASE, WE HAVE GOT A SENTENCING ERROR GOING ON, AND I THINK THAT PUTS A HEIGHTENED BURDEN ON THE JUDGE TO ENSURE THAT WE HAVE A RELIABLY-IMPOSED SENTENCE. NUMBER TWO, IN THIS CASE THE JUDGE ASKED FOR ORDER UP FRONT, WHICH IS SOMEWHAT OF, FROM A DEFENSE LAWYER'S STANDPOINT, CERTAINLY WOULD BE A RED FLAG THE JUDGE MAY POTENTIALLY BE ADVOCATING SOME RESPONSIBILITY TO THE PROSECUTOR, FOR PURPOSES OF ENTERING THE ORDER. WE HAVE, IN THIS CASE, A SENTENCING ORDER WHICH, IN SUBSTANTIAL PART, REFLECTS THE PROSECUTOR'S ANALYSIS, AND NO, MA'AM JUST IN, AND THE JUDGE HAS -- AND NOT ONLY JUST IN, AND THE JUDGE HAS NEVER REALLY SAID HE IS ADOPTING THE ANALYSIS. IT IS JUST PART OF HIS ORDER.

ISN'T THE PART OF HIS ANALYSIS ADOPTING THE -- THE PART OF HIS ORDER ADOPTING THE ANALYSIS, ISN'T THE PART DEALING WITH THE CASE?

NO. IT DEALT AND QUOTED MATERIAL THAT DEALT WITH THE MITIGATION AND ALSO DEALT WITH THE WEIGHING OF THE TWO PROCESSES.

I THOUGHT THAT THE STATE CONCLUDED THAT THERE SHOULD BE NO MITIGATION, THAT THE TRIAL COURT SEND THE --

RIGHT. RIGHT.

-- DEFENDANT LAWYER'S MEMORANDUM THAT THERE WAS MITIGATION ESTABLISHED, AND THAT THE COURT, THEN, WENT THROUGH THAT. I THOUGHT IT WAS SUBSTANTIALLY JUST --

I DON'T THINK IT VARIED, BECAUSE THE STATE DID CONCEDE SOME OF THE MITIGATION WAS PRESENT AS WELL, AS I RECALL, BUT EVEN THE ANALYSIS PART, WHERE HE WEIGHS THE AGGRAVATING AND MITIGATING CIRCUMSTANCES, SUBSTANTIALLY, I MEAN, IT IS VIRTUALLY VERBATIM FROM THE PROSECUTOR'S MEMO. AND YOU KNOW, WE ARE DEALING WITH YOU KNOW, I THINK THERE, IT LEAVES A QUESTION MARK INTO WHETHER WE CAN SAY THIS JUDGE USED INDEPENDENT ANALYSIS OR NOT. WHETHER THE JUDGE DID OR DID NOT, YOU KNOW, THE WHOLE POINT IS THAT THIS ORDER LEAVES US WITH A QUESTION AS TO WHETHER HE DID OR DID NOT.

CLEARLY THE PROSECUTOR WAS CONCERNED ABOUT SUBMITTING A PROPOSED ORDER, AND THEREFORE REQUESTED THE MEMORANDUM.

YES, YOUR HONOR.

SO IT WENT THE MEMORANDUM WAY. THIS COURT HAS ALWAYS BEEN CONCERNED ABOUT WHETHER THE COURT EITHER DOES OR APPEARS TO ACTUALLY DELEGATE ITS RESPONSIBILITY TO ACTUALLY GO THROUGH THE APPROPRIATE ANALYSIS AND MAKE THE, THIS A VERY SERIOUS DECISION, BY DELEGATING IT TO THE STATE TO DO THAT FOR THEM, AND THEREFORE SETTING OUT REASONING THAT ARGUABLY WAS FOR THE REASONING OF THE TRIAL COURT BUT WAS THE REASONING OF THE STATE, BUT YOU WOULD AGREE THAT, AS YOU HAVE INDICATED BEFORE, THAT IT IS NOT PER SE INAPPROPRIATE FOR THE COURT TO USE PORTIONS OF MEMORANDUMS. YOU JUST THINK THAT --

NO, YOUR HONOR. A -- IN THIS CASE THE TRIAL JUDGE --

-- IN THE CASE -- IN THIS CASE, THAT THE TRIAL JUDGE WENT TOO FAR.

I THINK IT WENT TOO FAR. IN A CASE WHERE THE DEFENDANT IS ACTIVELY SEEKING DEATH, IT STILL LEAVES WE ARE UNSURE. THERE IS STILL A QUESTION.

EVEN MORE --.

THERE IS STILL A QUESTION MARK. THAT IS MY VIEW ON THIS. THE OTHER ISSUE I WILL TOUCH ON BRIEFLY IS THE FINDING OF OR THE USE OF TWO NONVIOLENT FELONIES TO SUPPORT THE AGGRAVATING CIRCUMSTANCE OF A PREVIOUS CONVICTION FOR A VIOLENT FELONY. NOW, THERE WERE, IN FACT, OTHER VIOLENT FELONIES INVOLVED.

ARE THOSE CLEARLY IN THE RECORD? IN OTHER WORDS THERE WAS A SEXUAL BATTERY?

YES, YES, YOUR HONOR.

WHATEVER, IT IS HARD TO DEMONSTRATE PREJUDICE BY THAT.

WELL, I WOULD SUGGEST THAT CERTAINLY THE OTHER AGGRAVATOR, THE OTHER FELONIES COULD HAVE SUPPORTED THE FINDING OF THE AGGRAVATING FACTOR. THE QUESTION MARK IS WHETHER THE HINGERATION OF THESE ADDITIONAL FELONIES -- THE IN CORPORATION OF THESE ADDITIONAL FELONIES CHANGE AT ALL THE ADDITIONAL WEIGHT OF THAT FACTOR. THERE WERE TWO VILE ENFELONIES, ONE LEWD AND LASCIVIOUS ACTS, A FELONY WHICH THIS COURT IN HESS SAID WAS A CRIME OF VIOLENCE AND THERE WERE NO UNDERLYING FACTS PRESENTED IN THE CASE. THERE WAS AN INDICATION THAT UNDER LYING SCORE SHEET MENTIONED SEXUAL CONTACT, BUT THAT REALLY DOES NOT ESTABLISH THE VIOLENT PORTION OR THE CRIME BEING A CRIME OF VIOLENCE. IT WASN'T PRESENTED, REALLY, AS PROOF IN THAT RESPECT, AND FURTHERMORE, I DON'T THINK IT WOULD NECESSARILY, BASED ON THAT STATEMENT ALONE, WE CAN'T DETERMINE WHETHER IT WOULD SATISFY THE LEWIS DEFINITION OF A CRIME OF VIOLENCE FOR THE AGGRAVATING FACTOR. THE OTHER ONE WAS A FEDERAL CRIME OF THREATENING LIFE OF THE VICE PRESIDENT, WHICH HE WAS CONVICTED OF, AND THERE WAS JUST A VUMENT -- A JUDGMENT WHICH HE PLED TO, A JUDGMENT ENTERED IN THE RECORD, STIPULATED INTO THE RECORD. THE FEDERAL DECISIONS ON THAT SAID THE GROVAMENT OF THAT CRIME IS DISRUPTION CAUSED BY THE THREAT, AS OPPOSED TO THE ACTUAL THREAT OR ASSAULT UPON THE PUBLIC OFFICIAL. SO OUR POSITION IS THAT ONE IS NOT ESTABLISHED AS A CRIME OF VIOLENCE, EITHER, UNDER THE LEWIS DEFINITION.

CHIEF JUSTICE: THANK YOU VERY MUCH.

THANK YOU.

GOOD MORNING, CHIEF JUSTICE ANSTEAD. MAY IT PLEASE THE COURT. CHARMAINE MILL SAPS ON BEHALF THE STATE. I WOULD LIKE TO TALK ABOUT THE JURY SELECTION, BECAUSE I WOULD LIKE TO TELL YOU WHAT ACTUALLY HAPPENED. THEY DID STRIKE TWO JURORS FOR CAUSE AND TWO JURORS PERENTORILY, AND ONE OF THOSE JURORS STICK PHONE CAUSE WAS BASED ON HIS VIEW OF IMPOSING THE DEATH SENTENCE. JERRY KING WAS STRICKEN FOR CAUSE BY THE DEFENSE, BECAUSE HE CONSIDERED A LIFE SENTENCE A WASTE OF OF TIME AND MONEY AND NO AMOUNT OF MITIGATION COULD BE PRESENTED THAT WOULD CAUSE HIM TO VOTE FOR LIFE, BECAUSE THE PEOPLE THAT THE DEFENDANT MURDERED DIDN'T HAVE A CHANCE. THAT WAS ONE JUROR STICK PHONE CAUSE. ANOTHER JUROR, JUROR FAGAN, WAS STRICKEN, BECAUSE SHE WAS A CLOSE PERSONAL FRIEND OF THE PROSECUTOR'S INTERN. JUROR DOAN WAS STRICKEN PERENT BY THE, BY DEFENSE COUNS-- PEREMPTORYLY BY DEFENSE COUNSEL, AS WAS JUROR DR. BRADKE, SO THERE WERE BOTH FOR-CAUSE AND PEREMPTORY CHALLENGES MADE BY DEFENSE DURING THIS JURY SELECTION.

AND DOES THE RECORD REFLECT WHY THESE TWO JURORS THAT HAVE BEEN PICKED OUT BY THE DEFENSE AS, SHOULD HAVE BEEN STRICKEN OR NOT?

BECAUSE HAD HE THEY SHOULDN'T HAVE BEEN STRICKEN. -- BECAUSE THEY SHOULDN'T HAVE BEEN STRICKEN. THE TWO JURORS AT ISSUE HERE ARE JUROR McALWAYS SISTER AND -- McAHLISTER AND JUROR TILPIN.

COULD HE HAVE EXERCISED A PEREMPTORY CHALLENGE ON THEM?

I AM ASSUMING YOU CAN EXERCISE A PEREMPTORY ON ANYBODY, BUT, NO, A TRIAL JUDGE MAY NOT --

I UNDERSTOOD HIS ARGUMENT TO BE THAT DEFENSE COUNSEL ATTEMPTED TO, WHAT WAS THE DEFENSE SORT OF CALLED HIM BACK AND SAID, NO, DON'T EXERCISE A CHALLENGE ON THAT PERSON.

I THINK YOU CAN ONLY ARGUE THAT BASED ON THE RECORD REGARDING JUROR McALLISTER. THERE IS NO RECORD TO SUPPORT THAT FOR JUROR TILLMAN.

SO WHAT WAS SAID ABOUT JUROR McALLISTER?

I WOULD THIS IS DEFENSE COUNSEL TALKING AND I AM READING FROM PAGE 93 OF JURY SELECTION. McALICETER IS NOT A FOR-CAUSE CHALLENGE? THE JUDGE ASKED THE DEFENDANT. THE DEFENDANT SAID THAT'S RIGHT. THE COURT ASKED THE DEFENDANT ARE YOU SATISFIED WITH THIS JUROR REMAINING ON THE PANEL? THE DEFENDANT RESPONDS YES, SIR. ANOTHER -- RESPONDS YES, SIR. THERE WERE TWO DEFENSE COUNSEL. SAYS NO OBJECTION, YOUR HONOR. THE COURT SAYS, MR. BLACKWELDER, DO YOU AGREE? DEFENDANT RESPONDS YES, YOUR HONOR. SO THE FIRST PROBLEM WITH THIS IS YOUR HONOR, REALLY, WHAT HE IS ASKING IS FOR THE JUDGE TO STOP BEING THE JUDGE IN THE CASE AND TO COME DOWN AND BE SPECIAL COUNSEL, AND WE SIMPLY CANNOT HAVE TRIAL JUDGES BECOMING SPECIAL COUNSEL, OPERATING NOT ONLY FOR CAUSE BUT EXERCISING THE DEFENDANT'S PEREMPTORY CHALLENGES? WE CAN'T HAVE THAT. YOU CANNOT PUT A TRIAL JUDGE IN THAT POSITION, WHERE HE WOULD GUESS WHETHER HE, PERSONALLY, WOULD STRIKE THAT JUROR, IF HE WERE TRYING THIS CASE. SO THE STATE'S FIRST POSITION ON THIS IS THIS IS WAIVED TWICE OVER, FIRST BY NOT MAKING THE FOR-CAUSE CHALLENGE AND THEN FOR NOT EXERCISING PEREMPTORY CHALLENGE ON THESE TWO JURORS. THE, BOTH, HE DID HAVE PERENT OTHER -- PEREMPTORY CHALLENGES REMAINING. YOUR HONOR, THE RECORD IS A LITTLE UNCLEAR ON EXACTLY HOW MANY, BUT HE DID SEEM TO HAVE NUMEROUS PEREMPTORY CHALLENGES REMAINING. THE STATE'S SECOND POSITION IS THERE IS NOTHING WRONG WITH EITHER ONE OF THESE JURORS. FIRST OF ALL, JUROR TILLMAN WAS, HAD EXPERIENCED A FRIEND IN A DOMESTIC VIOLENCE MURDER SITUATION. SHE WAS VERY UNCOMFORTABLE WITH WHAT SHE CONSIDERED DOMESTIC VIOLENCE CASES. THEYICS PLANED TO HER THAT THIS IS NOT A DOMESTIC -- THEY EXPLAINED TO HER THAT THIS IS A NOT A DOMESTIC VIOLENCE CASE. WOULD YOU HAVE ANY PROBLEMS? SHE REPEATEDLY SAYS THINGS LIKE SHE ASSURES DEFENSE COUNSEL OVER AND OVER AGAIN THAT SHE CAN RECOMMEND LIFE, IF MITIGATION OUTWEIGHS AGGRAVATION. OVER AND OVER, SHE SAYS THAT SHE WOULD IGNORE THE DEFENDANT'S WISHES. I WILL IMPOSE, I WILL NOT TAKE THAT INTO CONSIDERATION. SHE SAYS THAT SHE IS JUST NOT SUBJECT FOR CAUSE CHALLENGE. JUROR McALLISTER, IS REHABILITATED, SO TO SPEAK. AT FIRST, WHEN DEFENSE COUNSEL IS TALKING TO HIM, HE SAYS, WELL, IT WOULD BE DIFFICULT FOR ME TO DO THIS. BUT THEN, THEY GO BACK AND THEY ASKED HIM, THE PROSECUTOR ASKED HIM CAN YOU FOLLOW THE LAW, BASICALLY, AND WHAT JUROR McALLISTER SAYS IS THIS, THIS IS THE PROSECUTOR TALKING TO THE JUROR. IF AGGRAVATING CIRCUMSTANCES DO NOT OUTWEIGH MITIGATING, COULD YOU VOTE TO RECOMMEND LIFE IN PRISON? AND HE SAYS I BELIEVE I COULD, YES, SIR. SO YOUR HONOR, AT THE END, HE IS, HE HAS, BOTH THESE JURORS ASSERTED TO THE TRIAL COURT THAT THEY WILL IGNORE THE DEFENDANT'S WISHES AND BASE THEIR DECISION, BASED ON AGGRAVATORS AND MITIGATORS. THEY ARE NOT SUBJECT TO FOR-CAUSE CHALLENGES. ON THE SECOND ISSUE, THE SENTENCING ORDER MATCHING THE STATE'S MEMORANDUM --

YOU WILL AGREE ON THAT, THAT THERE ARE VARIOUS PARTS OF THE TRIAL COURTORDER THAT SEEM TO BE TAKEN VERBATIM FROM THE STATE'S SENTENCING MEMORANDUM.

ABSOLUTELY, YOUR HONOR. THERE ARE LARGE PARTS OF THE AGGRAVATING PART TAKEN FROM THE STATE'S MEMORANDUM. BUT YOUR HONOR, WHEN A JUDGE IS FACED WITH TWO MEMOS, AND HE TAKES THE AGGRAVATION FROM THE STATE AND THE MITIGATION FROM THE DEFENSE, THAT IS JUST NOT A PROBLEM. WHAT WE REQUIRE TWO THINGS, NUMBER ONE, WE ARE WORRIED ABOUT NOTICE. WE DIDN'T WANT THE IMPROPER DELEGATION GOING ON IN PART, BECAUSE OF A DUE PROCESS NOTICE CONCERN. THAT PART IS JUST NOT AT ISSUE HERE. BOTH COUNSEL GOT EACH OTHER'S MEMO, AND EVERYBODY KNEW THAT EVERYBODY HAD SUBMITTED WRITTEN MEMANDUMPTION TO THE -- MEMORANDUMS TO THE TRIAL COURT, SO THERE IS NO NOTICE TO THE OTHER SIDE, EXPARTE PROBLEM WITH THIS. THE ONLY PROBLEM, THE ONLY ISSUE HERE IS WHETHER THE TRIAL COURT INDEPENDENTLY WEIGHED THIS, AND WHEN THE TRIAL COURT FINDS TWO STATUTORY MENTAL MITIGATION, BASED ON A FACTOR THAT THE STATE SAID SHOULDN'T EVEN BE CONSIDERED AS MITIGATING, AND THEN HE GOES ON AND FINDS MORE MITIGATION, BASED ON THAT, THEN EVEN IN THE DEFENSE MEMORANDUM, AND THE DEFENSE MEMORANDUM, THEY ARGUE ONLY ONE OF THE STATUTORY MITIGATORS, THE EXTREME EMOTIONAL DISTRESS. THERE, YOU JUST CANNOT, WHEN, WHILE FROM IS VERBATIM LANGUAGE TAKEN, THERE IS, ALSO, NUMEROUS INSTANCES THROUGHOUT THIS, WHERE IT IS VERY CLEAR THE JUDGE PROPERLY FOLLOWED HIS DUTY TO INDEPENDENTLY WEIGH AGGRAVATORS AND MITIGATORS. MOREOVER, YOUR HONOR, THEY DID NOT, IN THEIR SENTENCING MEMORANDUM, EVEN REALLY DISPUTE THE FOUR AGGRAVATORS AT ISSUE HERE. IN THE DEFENSE MEMORANDUM, THEY SAY, THEY LIST THEM, THE FOUR AGGRAVATORS THAT THE STATE IS SEEKING, AND THEY SAY YOU CAN CONSIDER THIS. THEY DON'T EVEN ARGUE AGAINST THEM, IN THE DEFENSE MEMORANDUM. MOREOVER, THE DEFENDANT STIPULATED TO SOME OF THIS, SO REALLY, THIS SENTENCING MEMORANDUM DOES FULFILL THE JUDGE'S OBLIGATION TO INDEPENDENTLY WEIGH BOTH AGGRAVATION AND MITIGATION. AND THERE IS NOTHING WRONG WITH A TRIAL COURT USING LANGUAGE FROM ONE OF THE PARTIES, AS LONG AS HE AGREES WITH THAT LANGUAGE, AND IT IS VERY CLEAR THAT HE DID, INDEPENDENTLY, THINK ABOUT THIS DECISION TO SENTENCE THIS DEFENDANT TO DEATH. ON THE LAST ISSUE, THE NONVIOLENT FELONIES, THERE WERE NUMEROUS FELONIES AT ISSUE HERE. ONE OF THOSE WHICH THIS COURT HAS HELD IN HESS, YOU HAVE DIRECTLY HELD THAT SEXUAL BATTERY STATUTE IS PER SE A CRIME OF VIOLENCE. THIS NOT ONLY WAS A CONVICTION FOR SEXUAL BATTERY. IT WAS A CONVICTION FOR CAPITAL SEXUAL BATTERY. SO ONE OF THESE IS ABSOLUTELY UNDER EXISTING CASE LAW FROM THIS COURT, A CRIME OF VIOLENCE. SO THERE, YOU KNOW, IT WAS JUST THERE IS EXTRA THERE. THE STATE ASKS YOU TO AFFIRM THE JUDGMENT INCIDENTS. THANK YOU.

CHIEF JUSTICE: COUNSEL.

NOTHING FURTHER TO ADD.

CHIEF JUSTICE: OKAY. THANK YOU BOTH, VERY MUCH. THE COURT WILL NOW STAND IN RECESS UNTIL NINE O'CLOCK TOMORROW MORNING.

MARSHAL: PLEASE RISE.

State v. Blackwelder

Appellant's Brief (Florida Supreme Court)

STATEMENT OF THE CASE AND FACTS A Columbia County grand jury indicted John Blackwelder, an inmate at Columbia Correctional Institution, for the first degree premeditated murder of another inmate, Raymond D. Wigley, occurring on May 6, 2000. (R1:2) On March 15, 2000, Blackwelder pleaded guilty to the crime as charged with the understanding that the State would seek the death penalty. (T4:646-647; 736- 760)

* * * *

The prosecutor related the factual basis for the plea, and the defense agreed that the State could establish a prima facie case:

MR. DEKLE: Basically, the state stands ready to prove that the defendant, in his cell at Columbia Correctional Institution here in Columbia County, tied inmate Raymond Wigley in a four-point restraints into -- on the bottom bunk that was in that cell, that he then took a ligature and tied it around the neck of 6

Mr. Wigley and compressed that ligature to the point that he killed Mr. Wigley by strangulation. At that point he then left the cell, leaving the body in the cell, went and reported his conduct to a correctional officer. The FDLE and the Office of the Inspector General were summoned to the scene. Since that time Mr. Blackwelder has given a full and complete taped statement in which he admitted to premeditating the murder of Mr. Wigley and describing how he committed that murder. That complete taped statement was made after a full and complete advisal of his Miranda rights. A transcript of that statement is in the court file.

Since that time Mr. Blackwelder has written a number of letters which contain what the State contends to be admissions to the -- to the -- to the homicide.

And that’s basically the evidence that the state stands ready to prove to prove the premeditated homicide. When we get to the penalty phase, we’ll be offering a tremendous amount of additional evidence as it relates to the circumstances of the homicide. But that’s enough to prove the premeditated murder. (R4:746-747) Circuit Judge E. Vernon Douglas accepted the plea and scheduled the case for a penalty phase trial. (R4: 753-756) The court ordered a psychological examination and a presentence investigation at the request of the defense. (R4:753-754, 757- 758)

The jury recommended a death sentence with a 12 to 0 vote. (R7: 1240; T14: 831-834) Judge Douglas imposed a death sentence. (R 8: 1410-1425; T16:791-819)(App. A) In the sentencing order four aggravating circumstances were listed as proven: (1) the homicide was committed while Blackwelder was under a sentence of imprisonment; (2) Blackwelder had been previously convicted of a violent felony; (3) the homicide was especially heinous, atrocious or cruel; (4) the homicide was committed in a cold, calculated and premeditated manner. (R8:1410-1415)(App. A) Regarding mitigation, the order addressed statutory and nonstatutory mitigation. (R8:1415-1422)(App. A) Four statutory mitigators were discussed:

(1) Blackwelder was under the influence of extreme mental or emotional disturbance at the time of the crime. The factor found and given little weight based on a finding that Blackwelder suffered antisocial personality disorder.

(2) The victim was a participant in the crime. The factor was rejected.

(3) Blackwelder acted under extreme duress or the substantial domination of another. The factor was rejected.

(4) Blackwelder’s capacity to appreciate the criminality of his conduct or to conform his conduct to legal requirements were substantially impaired. The factor was found and given little weight, on the basis of Blackwelder’s diagnosis of antisocial personality disorder.

Four nonstatutory mitigating factors were discussed:

(1) Blackwelder’s relationship with his parents. The factor found as a mitigation circumstance and given little weight. 8

(2) Blackwelder’s history of sexual abuse as a child. The factor found as a mitigation circumstance and given little weight.

(3) Blackwelder’s history as friendly, loving and helpful to friends and family. The factor was rejected.

(4) Blackwelder’s mental impairments. Based on a diagnosis of antisocial personality disorder, the factor found and given little weight.

A Notice of Appeal to this Court was filed. (R8:1440-1441)

Penalty Phase Trial - State’s Presentation:

On May 6, 2000, John Blackwelder was housed in F-dormitory at Columbia Correctional Institution. (T11: 390-391) Blackwelder approached Sergeant Timothy Saxon, a correctional officer supervisor, and said, “You can go ahead and take me to jail, Sarge. I just killed a fagot in my cell.” (T11:391, 406-407) Saxon had another correctional officer handcuff Blackwelder, and he proceeded to Blackwelder’s cell. (T11:391) In the cell, Saxon found the body of Thomas Wigley face down on the bottom bunk partially covered with a sheet. (T11:392-395)

Shawn Yao, a crime laboratory analyst, examined and photographed the crime scene. (T11:421-430) Photographs of the cell, the bed and the body were introduced as State’s Exhibits 13-21) (T11:423-427) The body was nude and had a white strip of cloth wrapped around the throat as a ligature. (T11: 423-425) Clothing was found on top of a footlocker. (T11:426-427) Additional strips of cloth were attached to the bottom of the bunk. (T11:425-426) One strip was located underneath the mattress. (T11:426-429) Yao took the strips of cloth into evidence. (T11:427-430) (State’s Exhibits 24-26)

Dr. Bonifacio Floro, a forensic pathologist, performed the autopsy on Wigley. (T11:372-373) The body arrived completely nude with a white cloth tied around the neck. (T11:374) Due to the blood going to the brain being unable to return because of the ligature, the neck and head were swollen and red. (T11:374- 375) Upon removing the ligature, Floro found a furrow around the neck with and abrasions or scratches, which Floro opined were caused by Wigley’s attempt to loosen the ligature. (T11:376) Both eyes contained hemorrhages consistent with strangulation. (T11:376-377) Floro concluded that cause of death was strangulation as the result of a homicide. (T11:377-378)

According the two inmates who lived in the same dorm, Blackwelder and Wigley had a homosexual relationship. (T11:396- 10 398, 412-413) Londell Moss was Blackwelder’s roommate for three weeks. (T11:396-398) During that time, Moss said that Blackwelder and Wigley used the cell for sex perhaps three times. (T11:398, 401) They would ask to “borrow” the cell. (T11:398) A friend of Wigley’s, Walter Martinez, said that Wigley and Blackwelder had a break-up of the relationship for about a week, but they were back together for a week at the time Wigley was killed. (T11:413-415) On the day Wigley died,

Blackwelder mentioned to Moss that he and Wigley were having problems. (T11:398) Later, when Moss returned to the cell after his job, he met Blackwelder who carried his property and said he was moving. (T11:399) He told Moss that Wigley was asleep in the bunk in the cell. (T11:399) Moss said there was cardboard on the cell window which he removed. (T11:399-400) He nudged Wigley, but he did not move. (T11:400) Moss pulled back that blanket and was shocked to find Wigley dead. (T11:400) Sergeant Saxon arrived and had Moss escorted to another dorm. (T11:400) Moss said he knew that Blackwelder had been taking psychotropic medication and that he stopped taking it over three weeks earlier, about three days before Moss moved into the cell. (T11:401-402) Blackwelder would sometimes play cards with imaginary friends -- Bubba, No-Name and Jimmy. (T11:401) He would become upset when Bubba would win the card game. (T11:401) Blackwelder gave four statements to Jack Schenck, the correctional officer performing the criminal investigation. (T12:441-530)

The first statement was shortly after the homicide on May 6, 2000. (T12:444-474) (State’s Exhibits Nos. 27 & 28) At that time, Blackwelder advised that he killed Wigley to stop Wigley from sexually harassing him. (T12:448-449) Initially, Blackwelder and Wigley had been friends. (T12:450) There was no sex involved in the relationship. (T12:450) Wigley kept asking to give Blackwelder oral sex, and one day, Blackwelder agreed. (T12:450-452) Blackwelder told Wigley he did not like it and did not want to engage in any sexual acts with him. (T12:452-454) For about two weeks, Wigley kept coming back to Blackwelder asking for sex -- wanting to be lovers. (T12:448-449)

Blackwelder told Wigley that he had been molested as a child and he had psychological problems. (T12:449) After the noon meal on May 6, Blackwelder returned to his cell. (T12:454) He was housed in an open population area where the inmates were free to move around during the day. (T12:451-452) His roommate was not at the cell and Blackwelder went to the guard station to advise that he was not there since he had been paged. (T12:454-455) Upon his return to the cell, Blackwelder found Wigley sitting in the cell waiting for him. (T12: 454-455) Wigley said, “Come on, let’s do something.” (T12:455) Blackwelder told him that he would have sex with him if Wigley stripped and allowed Blackwelder to tie him down to the bed. (T12:456) Wigley agreed, took his clothes off and placed them on a footlocker. (T12:456- 457)

Blackwelder tied Wigley’s hands and feet with strips of cloth which had been attached to the bed while he was face down on the bottom bunk. (T12: 457-458, 461-462) Additionally, Blackwelder tied a wash cloth over Wigley’s mouth. (T12:458, 462) Blackwelder took his pants off and got on his knees sitting on top of Wigley’s back. (T12:459) Blackwelder asked, “Are you read for the fun?” (T12:459) At that time, Blackwelder pulled another strip of cloth from under the top bunk mattress and looped it over Wigley’s neck and strangled him. (T12:459, 464- 466) At first, Wigley said, “John, stop. John, you’re hurting me.” (T12:465) Blackwelder responded, “Really? Ain’t that a bitch. You should have thought about that before. We might just finish it.” (T12:465) Blackwelder pulled the string tighter until Wigley’s face turned blackish and blood came out of his nose. (T12:465-466) He then untied Wigley, placed his personal property in a pillow case and walked to the captain’s office where he advised the officers “there was a dead one in there.” (T12:466) Blackwelder realized killing Wigley was not the right, in the cell waiting for him. (T12: 454-455)

Wigley said, “Come on, let’s do something.” (T12:455) Blackwelder told him that he would have sex with him if Wigley stripped and allowed Blackwelder to tie him down to the bed. (T12:456) Wigley agreed, took his clothes off and placed them on a footlocker. (T12:456- 457) Blackwelder tied Wigley’s hands and feet with strips of cloth which had been attached to the bed while he was face down on the bottom bunk. (T12: 457-458, 461-462) Additionally, Blackwelder tied a wash cloth over Wigley’s mouth. (T12:458, 462) Blackwelder took his pants off and got on his knees sitting on top of Wigley’s back. (T12:459) Blackwelder asked, “Are you read for the fun?” (T12:459) At that time, Blackwelder pulled another strip of cloth from under the top bunk mattress and looped it over Wigley’s neck and strangled him. (T12:459, 464- 466) At first, Wigley said, “John, stop. John, you’re hurting me.” (T12:465) Blackwelder responded, “Really? Ain’t that a bitch. You should have thought about that before. We might just finish it.” (T12:465)

Blackwelder pulled the string tighter until Wigley’s face turned blackish and blood came out of his nose. (T12:465-466) He then untied Wigley, placed his personal property in a pillow case and walked to the captain’s office where he advised the officers “there was a dead one in there.” (T12:466) Blackwelder realized killing Wigley was not the right, but he had been trying to get psychological help. (T12:472) He said he could no longer talk to Dr. Hamilton at the institution because he could not trust the confidentiality of his conferences. (T12:472)

A second interview of Blackwelder occurred at 7:00 p.m. on May 6, 2000. (T12:474-478) Schenck again asked Blackwelder about the sequence of the events, and then, he questioned Blackwelder about his motives. (T12:476-488) Blackwelder intended to kill Wigley so that he would not again bother anyone. (T12:489-498) Blackwelder felt as if Wigley was another molester trying to manipulate just like the one who molested Blackwelder as a child. (T12:489) The string Blackwelder used had been in place under the mattress for a couple of days. (T12:494-495) Blackwelder said he prepositioned the string to be ready because he felt that Wigley was not going to stop bothering him. (T12:494-495) For four months, Blackwelder had been sexually harassed by other inmates. (T12:495) He went for psychological help, but instead of help, Blackwelder said he received a disciplinary report for making a verbal threat. (T12:496) He concluded that the next time a problem arose he would deal with it himself rather than trying to seek help. (T12:496) Blackwelder killed Wigley to stop him. (T12:497-499)

On May 9, 2000, Schenck conducted a third interview of Blackwelder. (T12:500-503) Schenck asked Blackwelder about the relationship he had with Wigley and confronted him with an allegation that he killed Wigley because Wigley had started a relationship with someone else. (T12:510-513) Blackwelder denied that was true and said it would have been a blessing if Wigley had a relationship with someone else. (T12:513)

Schenck interviewed Blackwelder a fourth time on May 31, 2000. (T12:523-530) Blackwelder had sent a letter to the State Attorney which contained a riddle about a wrist watch. (T12:524- 527) After killing Wigley, Blackwelder took Wigley’s watch. (T12:527) He denied that he killed for the watch and that he took it since Wigley didn’t need it anymore. (T12:527) Schenck took possession of the watch during the interview. (T12:528)

The State introduced several letters Blackwelder wrote after the homicide. (T12:529-547)(State’s Exhibits Nos. 39-46) These letter were addressed to the State Attorney, FDLE, the Governor, and a newspaper. (T12:534-548) Two letters to the State Attorney included the riddle about the watch and one suggesting that other murders in prison were in some way connected and urging the State Attorney to get him to trial. (Ex. Nos. 39, 40)(T12:536) A letter to the FDLE urging that the State Attorney be pressured to get Blackwelder to trial or there would be other murders in the prison system. (Ex. No. 41)(T12:537) One letter to a named FDLE agent mentioned earlier misinformation Blackwelder sent about the Adam Walsh case and stated that he had a dream about a crop duster spraying a purple haze over a crowded NFL football game in Florida. (Ex. No. 43)(T12:539) The first of three letters Blackwelder sent to the Governor asked for a pardon to be released from prison to seek revenge on eleven others in the community.(Ex. No. 42) (T12:538) The second letter to the Governor related the dream about crop dusters spraying a purple haze on a football game. (Ex No. 44)(T12:540- 541) A third letter to the Governor, admitted that he killed Wigley and had planned the murder for days. (T12:542) Blackwelder explained in that letter that he had a life sentence with no chance of release and therefore had a license to kill. (T12:542-543) He said there was no advantage or disadvantage to kill inmates or staff when you had a life sentence. (T12:543)

The letter suggested that depending on how Blackwelder’s case is resolved will show other inmates with a life sentence if there is a reason not to kill in prison. (T12:543) Blackwelder stated in this letter that he had vowed to kill 13 people who caused him to unjustly be imprisoned for life and would kill inmates or staff as substitutes. (T12:544) The letter also mentioned the crop duster dream. (T12: 544)Blackwelder stated that he prayed for the death penalty and that if he received death he would not kill anyone else. (Ex. No. 45) (T12:544) A letter was sent to the Ft. Pierce News Tribune which in substance was the same as the letter to the Governor. (Ex. No. 46) (T12:545) The State introduced, via a stipulation, Blackwelder’s prior convictions: sexual battery on a child under 12; attempted sexual battery on a child under 12; and five counts of lewd and lascivious or indecent act on a child under 16. (State’s Exhibits Nos. 48 & 49) (T12:548)

St. Petersburg Times

"On eve of execution, murderer feels 'glad' - John Blackwelder tells the media he killed another inmate just so he could get the death penalty, and Gov. Jeb Bush "will get another kill." (AP May 25, 2004)

STARKE - John Blackwelder, who is scheduled to die today for a prison killing, apologized Monday for the murder but said it was the only way to manipulate the state to get the death penalty. "I will be glad tomorrow to lay on the gurney and tomorrow you (Gov. Jeb Bush) will get another kill," Blackwelder, 49, formerly of Fort Pierce, said in a media interview.

Blackwelder pleaded guilty to murdering convicted killer Raymond Wigley, 39, of Fort Worth, Texas, who was strangled on May 6, 2000, at Columbia Correctional Institution. After luring Wigley into his cell with the promise of a sex act, he tied Wigley to the bed and strangled him as Wigley begged for mercy. "I am sorry for killing Wigley, but to get what I wanted I had to," Blackwelder said. Wigley was convicted of the rape, torture and murder of Adella Maria Simmons, 47, in 1983.

Blackwelder noted that he will die on the 25th anniversary of the execution of John Spenkelink, the first Florida inmate and the second in the country to be executed after the Supreme Court made states redo their death penalty laws. Blackwelder said Wigley was the only person he ever killed and claimed he was innocent of sexually assaulting a 10-year-old boy in St. Lucie County, the crime that put him in prison for life without the possibility of parole.

Blackwelder said he was fearful that his execution would be put off until fall so it could be used politically by Gov. Bush and President Bush. "I did not want my execution to become a political statement for any Bush," Blackwelder said. Gov. Bush did not directly comment on Blackwelder's statements. "People have to remember what actually happened here," Bush said. "This was a man who was on death row because he murdered somebody." "I am sorry for what I've done; now I have to pay the price," said Blackwelder, who admitted threatening Vice President Dan Quayle "because I was homeless."

Blackwelder is scheduled to die by lethal injection at 6 p.m. today at Florida State Prison. He will be the fifth Florida inmate executed by injection, the second this year. He will be the 59th inmate executed since Florida resumed executions on May 25, 1979, when Spenkelink was put to death for slaying a traveling companion in Tallahassee.

Psychologists claim Blackwelder has been diagnosed as having impulse control disorder, antisocial personality disorder and pedophilia. The Florida Supreme Court affirmed Blackwelder's conviction and death sentence in July after an automatic appeal. Blackwelder then filed a motion to waive any more appeals.

Death penalty opponent Abe Bonowitz, with Floridians for Alternatives to the Death Penalty, said Blackwelder's death wish was "suicide by governor." Six of the last 10 inmates have opted to drop their appeals to speed up their executions.

Blackwelder said he became a Christian while on death row. "After I die, I feel I will go to heaven," he said. Throughout the interview his impending death was on his mind. "It's time to do away with the death penalty," he said at one point. But he abruptly ended his interview, saying, "I can't kill myself. I'm not suicidal. I can get the state to do it for me."

Commission on Capital Cases

The Commission on Capital Cases updates this information regularly. This information, however, is subject to change and may not reflect the latest status of an inmate?s case and should not be relied on for statistical or legal purposes.

BLACKWELDER, John (W/M)

DC #069574

DOB: 12/10/54

Third Judicial Circuit, Columbia County, Case #00-513

Sentencing Judge: The Honorable E. Vernon Douglas

Attorney, Criminal Trial: Victor Africano, Esq. ? Private, Assigned by the Court

Attorney, Direct Appeal: W.C. McClain ? Assistant Public Defender

Attorney, Collateral Appeals: George W. Blow, III - Registry

Date of Offense: 05/06/00

Date of Sentence: 08/06/01

Circumstances of Offense: John Blackwelder pled guilty to the 05/06/00 murder of Raymond Wigley. Both men were inmates at Columbia Correctional Institution at the time of the murder. Inmates John Blackwelder and Raymond Wigley consented to a sexual encounter together in May of 2000. Knowing that Wigley would badger him for sex, Blackwelder devised a plan to murder him. On 05/06/00, Wigley proceeded to Blackwelder's cell and asked for sex. Prior to the proposition, Blackwelder had hidden several pieces of cord around his bunk so he could restrain Wigley when the opportunity arose. Blackwelder consented to the proposition for sex and tied up Wigley after he had disrobed. Wigley allowed Blackwelder to bind his hands and feet to the bed and to tie a towel around his mouth. Blackwelder positioned himself on top of Wigley?s back and strangled him with a piece of the cord that he had hidden near his bunk. Prior to his death, Wigley was strangled for nearly ten minutes while pleading for his life. Blackwelder then alerted prison authorities about the murder.

Prior Incarceration History in the State of Florida:

10/31/75 SEX BATT/CARNAL INTERC. U/18 9/10/1979 MIAMI-DADE 16Y
5/1/1996 SEX BAT BY ADULT/VCTM UNDER 12 7/1/1998 ST. LUCIE 9701758 LIFE
5/1/1996 SEX BAT BY ADULT/VCTM UNDER 12(ATTEMPTED) 7/1/1998 ST. LUCIE 9701758 30Y
5/1/1996 LEWD ASLT/SEX BAT VCTM<16 7/1/1998 ST. LUCIE 9701758 15Y
5/1/1996 LEWD ASLT/SEX BAT VCTM<16 7/1/1998 ST. LUCIE 9701758 15Y
5/1/1996 LEWD ASLT/SEX BAT VCTM<16 7/1/1998 ST. LUCIE 9701758 15Y
5/1/1996 LEWD ASLT/SEX BAT VCTM<16 7/1/1998 ST. LUCIE 9701758 15Y
5/1/1996 LEWD ASLT/SEX BAT VCTM<16 7/1/1998 ST. LUCIE 9701758 15Y

NOTE: John Blackwelder was incarcerated for the above offenses at the time of the murder of fellow inmate Raymond Wigley.

Trial Summary:

05/11/00 The defendant was indicted on the following: Count I: First-Degree Murder

03/15/00 The defendant pled guilty to First-Degree Murder.

06/13/01 Upon advisory sentencing, the jury, by a 12 to 0 majority, voted for the imposition of the death penalty.

08/06/01 The defendant was sentenced as follows: Count I: First-Degree Murder - Death

Florida Supreme Court - Direct Appeal

FSC #SC01-2058

09/13/01 Appeal filed.

07/03/03 FSC affirmed the conviction and sentence of death. Factors contributing to the delay in the imposition of the sentence There have been no unreasonable delays in this case at this time.

On 07/14/03, Blackwelder filed a motion in the State Circuit Court to shut down any future appeals, dismiss any defense attorneys assigned to his case and waive his right to an Executive Clemency Hearing.

Case Information: On 09/13/01, Blackwelder filed a Direct Appeal in the Florida Supreme Court. In that appeal, he argued that the jury's advisory sentence was not the product of adversarial testing because he actively sought jurors with pro-death penalty views. Blackwelder also claimed that the trial court erred because it copied portions of the State's sentencing memorandum nearly verbatim in its sentencing order. The Florida Supreme Court found these claims to be procedurally barred since Blackwelder did not preserve them for appeal. The court also found the claims to be lacking in merit. Blackwelder next contended that the prior violent felony aggravator should have been stricken because his prior crimes were not violent per se. The Florida Supreme Court noted that Blackwelder was convicted of capital sexual battery and attempted capital sexual battery, which are unarguably crimes of violence. Finally, Blackwelder argued that Florida's capital sentencing scheme is unconstitutional in violation of Ring v. Arizona1. Specifically, Blackwelder alleged that each proposed aggravating circumstance should have been submitted in the indictment, presented to a jury and found by individual unanimous verdicts. The Florida Supreme Court denied relief on the claim. The Florida Supreme Court also noted that Blackwelder's conviction was supported by sufficient evidence and withstood a proportionality review, even though Blackwelder did not raise either issue in the appeal. The Florida Supreme Court affirmed the conviction and sentence of death on 07/03/03.

Blackwelder v. State, 851 So.2d 650 (Fla. 2003). (Direct Appeal)

Defendant pled guilty in the Circuit Court to first-degree murder and was sentenced to death. Defendant appealed. The Supreme Court held that: (1) jury's recommendation of death was the product of adversarial testing; (2) trial court did not abdicate its responsibility during sentencing even though its sentencing order copied almost verbatim State's sentencing memorandum; (3) evidence was sufficient to support conviction; and (4) sentence of death was not disproportionate to other death penalty cases involving similar circumstances. Affirmed. Anstead, C.J., concurred in part, dissented in part, and filed a separate opinion.

PER CURIAM.
Appellant, John Blackwelder, appeals a circuit court judgment sentencing him to death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

I. FACTS

Appellant pleaded guilty to the first-degree, premeditated murder of Raymond D. Wigley. At the time of the murder, Appellant and Wigley were inmates at the Columbia Correctional Institution. In May 2000, they engaged in a consensual sexual encounter. Although Blackwelder did not want a sexual relationship with Wigley, he knew that Wigley would badger him for sex, so Blackwelder decided to murder him. In preparation, Blackwelder positioned three pieces of cord in accessible locations around the bunk beds in his cell. Then he waited for an opportune moment.

That time came on May 6, 2000. On that day, Wigley went to Blackwelder's cell asking for sex. Blackwelder feigned agreement so that Wigley would consent to being tied to the bed. Wigley disrobed and permitted Blackwelder to tie his hands and feet to the bed and tie a hand towel over his mouth. Blackwelder then knelt on Wigley's mid-back, reached for one of the hidden cords, and strangled him. Wigley pleaded with Blackwelder "not to do this" and stated, "I'll do anything." It took ten minutes for Wigley to die. After killing Wigley, Blackwelder turned himself in to prison authorities.

Blackwelder pleaded guilty to first-degree murder. A jury was impaneled for the penalty phase, and it unanimously recommended a sentence of death. The trial court found four aggravating circumstances: (1) the murder was committed while under a sentence of imprisonment (great weight); (2) Blackwelder has been previously convicted of another capital offense or of a felony involving the use or threat of violence to some person (great weight); (3) the murder was especially heinous, atrocious, or cruel (great weight); and (4) the murder was committed in a cold and calculated and premeditated manner (great weight). The trial court also found two statutory mitigating factors (the crime was committed while the defendant was under the influence of extreme mental or emotional disturbance and he lacked the capacity to appreciate the criminality of his conduct or his ability to conform his conduct to the requirements of the law was substantially impaired) and two nonstatutory mitigating factors (Blackwelder's relationship with his family and his history of sexual abuse as a child). The court gave slight weight to each mitigating circumstance and found that any aggravator, standing alone, would outweigh all the mitigation. The court imposed a sentence of death. Blackwelder appeals. He raises four claims, which we address below.

* * * *

For the reasons stated, we approve the trial court's sentencing order and affirm Blackwelder's sentence of death. It is so ordered.