IN THE SUPREME COURT OF FLORIDA

THEODORE ROBERT BUNDY,

Appe 11ant
. .
V.
Appeal N o . 57,772
STATE OF FLORIDA, Capital Case Appeal
Appel 1ee Second Judicial Circuit of Florida _,

FILED

Law Offices of
ROBERT AUGUSTUS HARPER, JR.
Counsel f o r Appellant
308 East Park AV
P.O. Box 10132
Tallahassee, FL 3 2 3 0 2
904/224-5900
*
F

I.
TABLE OF--CO@!?ENTS
+. .

Table of Citations i

11. Statement of the Facts and Case

A. Pre-Arrest 1
B. Arrest 3

C. Post-Arrest/Pre-Indictment 4

D. Pre-Indictment Pretrial Proceedings

1. Search and Seizure(s) LO
2. Grand Jury
E, Post-Indictment Pre-Trial Proceedings
1. Publicity 16
14
2. Right to Counsel
3 . Discovery 17
4. Pre-trial Evidential Issues 18
F. Trial Proceedings in Tallahassee 22
G. Trial Proceedings in Miami 22
1. Jury Selection 23
2 . Counsel at Trial 24
3 . Evidential Issues at Trial 25
4. Opening Argument 32
5. Trial Testimony 33
6. Jury Instructions - Charge Conference 39
7. Closing Argument 40
8 . Post-Guilt Fhase 40
9. Penalty Phase 40

111. Argument
A. The trial court erroneously applied nonappli-
cable standards to Defendant's requested
ClOSUre of certain pretrial (Bitemark) evi-
dential hearings, and therefore erred in
denying defendant's motion requesting that
relief and prejudicing defendant's right to
a fair trial. 42

B, The failure of the court to control the perv-

vasive prejudicial publicity denied Defen-
dant his constitutional right to be tried
in the county where the offense was committed 51
Art. I, 515, Fla-Const, (1968)
 J. Defendant's right to counsel was violated by
the trial court's denial of hi5 motion
to permit appearance of p r o bono out-of-
state counsel, p r o hac D i c e , 113
K. The court's inclusion of jury instructions
permitting jurors to infer knowledge of
guilt from flight without cautionary in-
structions constituted constitutional error, 117
I;. The trial court erred in denying defendant
an evidentiary hearing on the effectiveness
of assistance of h i s trial counsel.
1. Standards in General 120
2. Cuts or omissions 120
3. Standard for Counsel Conduct 121
4 . Prejudice 122

IV. Conclusion 123

V. Certificate of S e r v i c e 124
 TABLE OF CITATIONS
-_..

Adams v. T e x a s , LOO S,Ct. 2521 (1980) 88

A s h l e y v . S t a t e , 7 2 Fla. 137, 72 So, 647 (1916) 52r53
Ashley v. S t a t e , 2 6 5 So.2d 6 8 5 (Fla. 1972) 82,83
Barnes 0. S t a t e , 348 So.2d 599 (Fla. 4th DCA 1973) 119
Batey V. S t a t e , 355 S0.2d 1271 (Fla. 1st DCA 1978) 119
B a x t e r v. S t a t e , 355 So.2d 1234 (Fla. 2d DCA 1978) 72,74,75
Beckwikh v. S t a t e , 3 8 6 So.2d 8 3 6 ( F l a . 1st DCA 1980) 53
Be22 21. G e o r g i a , 5 5 4 F.2d 1360 (5th Cir. 1977) 122
B Z a c k w e Z Z v . S t a t e , 76 Fla. 124, 79 So. 731 105
B l a k e v. Z a n t , 513 F.Supp. 772 (S.D.GA. 1981) 122
BouZden d. Holman, 394 U.S. 478 (1969) 85
Bradley 2'. S t a t e , 378 So.2d 870 (Fla. 2d DCA 1979) 78
Brewer v. W i l l i a m s , 430 U.S. 387 (1977) 92,93
B r u r n f i e Z d v . S t a t e , 1 0 8 So.2d 33 (Fla. 1958) 44,45,46,47,4a
B u n d y v . R u d d , 581 F.2d 1126 (5th Cir. 1978) 113
Chandler v . FZorida, 1 0 1 S.Ct, 8 0 2 (1981) 48

C l a r k v . S t a t e , 379 So.2d 372 (Fla. 1st DCA 1979) 49,56,57,65,67

Coleman v. Alabama, 399 U.S. 1 (1970) 91,93
CommonweaZth v. N a z a r o v i t c h , 436 A,2d 170 (Penn. 1981) 58,59,63,64
Coppolino v. S t a t e , 2 2 3 So.2d 68 (Fla. 2d DCA 1968) 57
Crawford v . S t a t e , 329 So.2d 554 (Fla. 4th DCA 1975) 58,65

David v . S t a t e , 369 So.2d 943 (Fla. 1979) 112

D a v i s v. AZabama, 596 F.2d 1214 (5th Cir. 1979) 121

Davis V . G e o r g i a , 429 U.S. 122, 97 S.Ct. 399, 5 0 LaEde2d

339 (1976) 86,90

Davis v . S t a t e , 3 7 6 So.2d 1198 (Fla. 2d DCA 1979) 78

 D i s t r i c t S c h o o l Bd. of Lake County v. T a Z m a d g e ,
381 So.2d 698 (Fla. 1980) 94
Douglas v . S t a t e , 212 So.2d 72 (Fla, 2d DCA 1968) 114
Drew v . IFnited S t a t e s , 331 F.2d 8 5 (D.C. Cir, 1964) 80
Escobedo V. Illinois, 378 U.S. 428 (1964) 91
E s t e l l e v . Smith, 101 S.Ct, 1866 (1981) 122
Estes V . T e x a s , 381 U.S. 532, 85 S,Ct. 1628, 14 L.Ed.2d
543 (1965) 49
Farley v . S t a t e , 324 So.2d 662 (Fla. 4th DCA 1975) 105,108
Foley v . S t a t e ex reZ.Tordon, 5 0 So.2d 179 ( F l a . 1951) 94
F ~ y ev . U.S., 293 F. 1013 (D.D.C. 1924) 57,98
G a n d y v . Alabama, 569 F.2d 1218 (5th Cir. 1978) 115

G a i n e s v. Hopper, 575 F,2d 1147 (5th Cir. 1978) 121,122

G a n n e t t Co. I n c . v . Depasquale, 4 3 3 U.S. 3 6 8 , 9 9 S.Ct.
2898, 61 L.Ed.2d 608 (1979) 42,43,44
0 Gerste-in v . P u g h , 4 2 0 U.S, 108 (1975) 91,93

G i b b s v. S t a t e , 193 So.2d 460 (Fla. 2d DCA 1967) 104,105,108

G ; d e o n v . W a i n w r i g h t , 372 U . S . 335, 8 3 S.Ct. 792, 9
L.Ed.2d 799 (1963) 91
Gomez v . B e t z , 462 F.2d 596 (5th Cir, 1972) 122
G r a n t v. S t a t e , 3 9 0 S0.2d 341 (Fla. 1980) 68,72

G r i f f i n v . C a l i f o r n i a , 3 7 0 U.S. 609,84 S.Ct. 1493 (1965) 110,112

HaZZ v . S t a t e , 66 So.2d 8 6 3 (Fla. 1953) 75,76
H a m i l t o n v. Alabama, 3 6 8 U.S. 5 2 (1961) 9 2 ,9 3

H a m i l t o n v. S t - a t e , 109 So.2d 422 (Fla. 3d DCA 1959) 112

H a r d i n g v . S t a t e , 2 4 6 A.2d 302 (C.Spec.App., Md. 1968) 56,57
Hargrett v , S t a t e , 255 So,2d 298 (Fla. 3d DCA 1969) 119
Harper v. S t a t e , 151 So.2d 881 (Fla. 2d DCA 1963) 111
H e r r i n g v . E s t e l l e , 491 F.2d 125 (5th Cir. 1974) 122
Hezllitt v . S t a t e , 43 Fla. 194, 30 So, 795 (Fla. 1901) 52
HCgginbotham v . S t a t e , 8 8 Fla. 2 6 , 101 So. 233
(Fla. 1924) 53
Houckins v. S t a t e , 175 So,2d 82 (Fla. 1944) 75

HuckeZbury v. S t a t e , 337 So.2d 400 ( F l a . 2d DCA 1 9 7 6 ) 91

I r v < n v . Dowd, 3 6 6 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d
751 (1961) 49
J e n t v w S t a t e , 408 So.2d 1024 ( F l a . 1981) 101

Johnson v , S t a t ' e , 314 So.2d 2 4 8 (Fla. 1st DCA 1975) 105

J u d d v. S t a t e , 402 So.2d 1279 (Fla. 4th DCA 1981) 72
K a m i n s k i v . S t a t e , 63 So,2d 339 (Fla. 1953) 57,99

Kemp v. L e g g e & t , 6 3 5 F.2d 4 5 3 (5th C i r . 1981) 122

King V. State, 143 So.2d 458 (Fla. 1962) 112

King v . S t a t e , 390 S0.2d 3 1 5 ( F l a . 1980) 49
Kirby v. Illinois, 406 U.S, 682 (1972) 68,75,92
Kline 0. F o r d M o t o r Co,, 523 F.2d 1067 (9th Cir. 1975) 57
K n i g h t v . S t a t e , 394 So.2d 997 (Fla. 1981) 120,121
KoZsky v . S t a t e , 182 So.2d 3 0 5 (Fla, 3d DCA 1966) 112
Layton I)* S t a t e , 346 So.2d 1244 (Fla. 1st DCA 1976) 112
Lee v . H o p p e r , 499 F.2d 456 (5th C i r . 1974) 122
L e i s v . FZynt, 439 U . S . 4 3 8 (1979) reh.den. 441
U.S. 956 114

L o c k e t t v . Ohio, 4 3 8 U.S. 595, 98 S.Ct, 2954,

57 L.Ed.2d 973 (1978) 86

M a c k Z i n v , S t a t e , 395 So.2d 1219 (Fla. 3d DCA 1981) 79

MaZloy v. Hogan, 378 U . S . 3, 84 S.Ct. 1498 (1964) 110,111
Mann v . G o o d y e a r Tire & Rubber Co., 3 0 0 So.2d 32
( F l a . 1975) 94
Manson 2). Brathwaite, 432 U.S. 98 (1977) 68,70,71,75
M a s s i a h v. United States, 377 U.S. 201 (1964) 92,93

Math<s v . S t a t e , 267 So.2d 846 (Fla, 4th DCA 1972) 111

MaxweZZ v. B i s h o p , 3 9 8 U.S. 262, 90 S.Ct 1578, 26 L.Ed.
2d 646 (1970) 85,
M e r r i f i e Z d v , S k a t e , 400 N.E.2d 146 (Ind. 1980) 58
M i a m i H e r a l d Pub. Co. v. ChappeZZ, 403 S0.2d 1343,
(Fla. 3d DCA 1981) 42,46
M i a m i H e r a l d Pub. Co. v , CoZZanzo, 329 So.2d 333
(Fla. 3d DCA 1976) 47
Miami H e r a l d Pub. Co. v , L e w i s , 3 8 3 So.2d 236 ( F h .
4th DCA 1980) 42,43,44
MicheZ v . Louisiana, 350 U . S . 91 (1955) 92
M i k e n a s v. S t a t e , 367 So.2d 606 (Fla. 1978) 100
Milton 71. State, 127 So.2d 460 (Fla. 2d DCA 1961) 112
M i r a n d a v . A r i z o n a , 384 U . S . 436 (1966) 91
Moore v. I Z Z i n o i s , 434 U.S. 218 (1977) 75f93

M u r p h y v. Supreme C o u r t , 249 N.Y, 440, 63 N.E.2d

49, 161 A.L.R. 937 (1945) 51
Murphy v . F l o r i d a , 421 U . S . 749, 95 S.Ct. 2031,
44 L.Ed.2d 589 (1975) 48
N e i Z v , B i g g e r s , 409 U . S . 188 (1972) 68,69,70,72,74,75
flews P r e s s P u b . Co., I n c . v. S t a t e , 345 So.2d 865
(Fla. 2d DCA 1977) 47
N i c h a u s v . S t a t e , 265 Ind. 6 5 5 , 359 N.E.2d 513 (Ind.
1977); c e r t . den, 434 U.S. 902, 98 S,Ct, 297, 130,107
54 L.Ed.2d 188
N o r t h v . S t a t e , 65 So.2d 7 7 (Fla. 1952) 54
OcaZa S t a r Banner Corp. v . S t u r g i s , 3 0 0 So.2d 1367
(Fla. 5th DCA 1980) 42,4a
O ’ B e r r y v . S t a t e , 47 Fla, 7S, 3 6 So. 444 (1904) 52
P a t t e r s o n v. S t a t e , 589 S.W.2d 857 (Tex,Crirn. 1974) 100
PauZ v. S t a t e , 3 6 5 So.2d 1063 (Fla. 1st DCA 1979) 78

Peck v. State, 3 9 5 So.2d 492 (Fla. 1980) 101

P e o p l e v . KeZZy, 17 Cal.3d 24, 130 Cal. R p t r . 144,

549 p.2d 1240 (1970) 102

P e o p l e v. M a r x , 54 Cal.App.3d 100; 126 Cal.Rptr.

350 (1975) 99
P e o p l e v r M i d d Z e t o n , 444 N.Y.S.2d 581(N.Y.C.A. 1981) 100

P e o p l e v.MCZone, 4 3 111.App.3d 3 8 5 , 2 Ill. Dec. 6 3 ,

356 N.E.2d 1350 (Ill. 2d DCA 1976) 100
People 2). S m r e k a r , 385 N.E.2d 8218 (I11,App. 1929) 58

P e o p l e v. S z o n e , 76 Cal.App.3d 611, 143 Cal.Rptr. 61

(Cal.2d DCA 1978) L O O ,1 0 7
P e o p l e v. Stone, 143 Cal.Rptr, 61,69 76 Cal.. App.3d
(Cal, 2d DCA 1 9 7 8 ) 100

P e o p l e v. Watson, 75 Cal. App.3d 384, 342 Cal.Rptr,

134 (Cal. 1st DCA 1977) 100,106
PoweZZ v . Alabama, 287 U . S . 45, 53 S.Ct, 55 (1932) 9 5 ,114

Proffitt v , S t a t e , 315 So.2d 461 (Fla, 1975);aff'd

per curiam 428 U . S . 242 118
Reece v. G e o r g i a , 350 U.S. 8 5 (1955) 92,93,94,95

Pichmond f l e w s p a p e r s , Inc. 0. Virginia, 100 S.Ct.

2814 (1980) 42,43

RCdeau V . L o u i s i a n a , 373 U . S . 723, 8 3 S.Ct. 1417,

10 L,Ed.2d 663 (1963) 43,49

Rodriquez v . S t a t e , 337 So.2d 903 (Fla. 3d DCA

1976) 57

R o g e r s v . R<chman, 368 U.S. 5 3 4 , 81 S.Ct. 135, 5

L.Ed.2d 760 (1961) 110
Rubin v. S t a t e , 407 So.2d 961 (Fla. 4th DCA 1982) 83

Ruffin v , S t a t e , 397 So.2d 277 (Fla. 1981) 76

Sanders zf. R u ~ s e Z l , 401 F.2d 241 ( 5 t h Cir. 1978) 115,116
Seay v . S t a t e , 2 8 6 So.2d 532 ( F l a . 1973) 93
S e n t i n e l S t a r v . Edwards,387 So.2d 367 (Fla. 5th
DCA 1980) 46

S k e p p a r d v . MaxweZZ, 384 U . S . 3 3 3 , 86 S.Ct. 1507 42 I 49

(1966)
Simmons v . U.S., 390 U.S. 377 (1968) 68,69,70,71
S m i t h v . E s t e l l e , 602 F.2d 694 (5th Cir. 1979) 122

Smith v. State, 362 So.2d 417 (Fla. 1st DCA 1978) 72,75

Smith v. S t a t e , 376 So.2d 455 (Fla. 1st DCA 1979) 48

State e x reZ Ashman v . WCZliarns, 151 So.2d 437

(Fla. 1963) 92

State 71. B r i t t o n , 387 So.2d 556 (Fla. 2d DCA 1980) 72

State e x r e L G o r e Newspapers C o m p a n y v. T y s o n , 313

S0.2d 777 (Fla. 4th DCA 1975) 47

State ex r e Z . &!<ami H e r a l d Pub. Co- v . V c l n t o s h , 340

So.2d 904 (Fla. 1975) 42
State v . F i s c h e r , 387 So.2d 473 (Fla. 5th DCA 1980) 72

S t a t e v . G a r r i s o n , 120 Ariz. 255, 585 P.2d 563 ( A z . 1978) 100,107

State v . G r e e n , 395 So.2d 532 (Fla. 1981) 49

S t a t e v . H u r d , 432 A.2d 86 (N.J. 1981) 58,59,60,61,63,64

State v , Jones, 273 S.C. 7 2 3 259 S.E.2d (S.C. 1979) 100

State v . J o r g e n s o n , 492 P,2d 312 (Oreg, 1st Ct.
App. 1971) 57

State v . K Z e y p a s , 602 S.W.2d 863 (Mo. 2d DCA 1980) 100,107

S t a t e v . L e w i s , 11 So.2d 337 (Fla. 1943) 92,96

S t a t e v . Mack, 292 N.W.2d 764 (Minn. 1980) 58,59,60,61,63,64,65

S t a t e v . V c Q u e e n , 244 S.E.2d 414 (N.C. 1978) 57

S t a t e v . Mena, 624 P.2d 1274 (Ariz. 1981) 58,59,64

S t a t e v . Peoples, 227 Kan. 127, 605 P , 2 d 135 (Kan.

1980) 100,107
S t a t e v . Routh, 3 0 Or,App. 901, 568 P.2d 704
(Or. C.A. 1977) 100

S-Late v. S a g e r , 600 S.W.2d 541 (Mo. W.D.C.A. 1980) cert.

den, 450 U.S. 910, 101 S.Ct. 1348, 6 7 L.Ed.2d
354 100,101,102,106
State v. T e m p Z e , 302 N.C. 1, 273 S.E.2d 2 7 3 (N.
C. 1981) 100

S t o v a l i ! v. Denno, 3 8 8 U.S. 302 (1967) 69,71

S w a r t v . XirnbaZZ, 43 Mich. 443, 5 N.W. 635 (1980) 51,52

Tehan v. V n i t e d States, 3 8 2 U.S. 413 (1966) 110

ToZZCver v. S t a t e , 133 So.2d 5 6 5 (FLa. 3d DCA 1961) 112
Trafficante 0, S t a t e , 9 2 So,2d 811 (Fla, 1951) 111,112
United S t a t e s v. A d d i s o n , 498 F.2d 741 (D.C.
Cir. 1974) 99

l k z i t e d S t a t e s v. Adarns, 581 F,2d 193 (9th Cir. 1978) 57,58

V n i t e d S t a t e s v . A l e x a n d e r , 5 2 6 F.2d 161 (8th Cir. 1970) 65

V n i t e d S t a t e s v . A s h , 413 U.S. 300 (1973) 92,93

U n i t e d S t a $ e s v. Awkard, 597 F.2d 6 6 7 (9th Cir. 1979) 57
Zhzited S t a t e s v . Brown,501 F.2d 146 (9th Cir. 1974)
rev'd an other grounds s u b nom. mzited S t a t e s v.
IVobZes, 4 2 2 U.S. 225, 95 S,Ct, 2160 45 L,Ed,2d
141 (1975)
United S t a t e s z). Brown, 5 5 7 F.2d 541 (6th Cir. 1977) 65,66

U n i t e d S t a t e s v , Brown, 591 F.2d 207 (5th Cir. 1979) 114

Unsted S t a t e s v. B u r t o n , 584 F.2d 488 (D.D.C. 1978) 114,115
United S t a t e s v , Dennis, 6 2 5 F.2d 7 8 2 (8th Cir, 1980) 79
L h i t e d S t a t e s v. D i n i t z , 538 F.2d 1214 (5th Cir. 1979
cert.den, 429 U.S. 1104 114
United S t a t e s v . FesseZ, 5 3 1 F.2d 1275 (5th Cir. 121
i k i t e d S t a t e s v . F o u t x , 5 4 0 F.2d 7 3 3 (4th C i r . 1976) 79,80,81,82
U n i t e d S t a t e s v . G r a c i , 504 F.2d 411 ( 3 d Cir. 1974) 82
 l h i t e d S t a t e s v. Gray, 565 F.2d 881 (5th Cir, 19781 114 121
U n i t e d S t a t e s v . G u r n e y , 558 F. d 1202 ( th C r. 1977) 48
m i t e d S t a t e s v . Harretson, 4 7 7 F.2d 3 8 3 (5th C i r . 1973) 114
l h i t e d S t a t e s v . HoZland, 378 F.Supp. 144 (E.D.P.R.
1974) aff'd. sub. nom. A p p e a l of E h Z y , 506 F.2d
1050 Cert.den. sub. nom. E h l y v . k t e d S t a t e s , 100
420 U.S. 994, 95 S.Ct. 1433, 43 L.Ed.2d 676
(1975)
mited S t a t e s v. Jines, 536 F.2d 1255 (8th Cir. 1976) 77
L h i t e d S t a t e s v. M y e r s , 550 F.2d 1036 (5th Cir. 1977)
cert, den. 439 U.S. 847 117,118,119
United S t a t e s v . B a b b i t t , 5 8 3 F.2d 1 0 1 4 (8th Cir. 1978) 77
U n i t e d S t a t e s v . S e l l e r s , 566 F.2d 584 (4th Cir. 1977) 103
m i t e d S t a t e s v. S h e a r e r , 606 F.2d 819 (8th Cir. 1979) 77
W i - t e d S t a t e s e x reZ. Kirby 0. Sturgis, 510 F.2d 397
(7th Cir. 1975) 71
mited S k a t e s v . Wade, 3 8 8 U.S. 218 (1967) 64,91,93

United S t a t e s z1. W i l l i a m s o n , 482 F.2d 508 (5th C i r . 1973) 81

Urga v. S t a t e s , 104 So.2d 43 (Fla. 361 DCA 1958) 105

ViZZagelieu v . S t a t e , 347 So.2d 445 ( F l a . 3d DCA 1977) 118

Voayles v. WatkCns, 489 F.Supp. 90.1 (N.D.Miss. 1980) 122

Ward v . S t a t e , 3 2 8 So.2d 260 (Fla. 1st DCA 1976) 52,54

White v . Maryland, 372 U.S. 59 (1963) 92 I 93

Wilder v . Statg, 156 So.2d 395 (Fla. 1st DCA 1963) 114

WiZZiams v. S t a t e , 110 So.2d 654 (Fla. 1959) 76,77,78,79,81

WiZliams v. State, 288 So.2d 566 (Fla. 3d DCA 1972) 119

WiZson V. State, 371 So.2d 126 (Fla. 1st DCA 1978) 111
WiZson v . United Sta*es, 13 S.Ct. 765 (1893) 111
W i t h e r s p o o n u , Illinois, 391 U.S. 510, 88 S.Ct. 1710,
20 L.Ed.2d 6 (1968) 85,86,87,89,90
 W r i g h t v . State, 3 4 8 So.2d 2 6 ( F l a . 1 s t DCA 1 9 7 7 ) 103

W y z z e r v . F a i r c h i l d HitZer Corp., 503 F.2d 5 0 6 (9th Cir.

1974) 57

Young 21. Zant, 5 0 6 F.Supp. 274 (M.D.Ga. 1980) 122

3.
_--u
STATUTES

90.703 Fla.Stat. 108

095.02-.04 Fla.Stat. (1970) 93

905.05 Fla.Stat. (1970) 92,93,96,97

27.51 (1)( a ) Fla.Stat. 94

C. -
OTHER AUTHORITIES

Burton, R. and Arbuthnot, FF, The Kama Sutra of V a t s y a y a n a ,

Translation (Allen and Unwin, London, 1963) 98
Cameron, J.M. and Sims, B.J., "Bitemarks," F o r e n s i e
D a n t i s t r y , (Churchill-Livingstone, London,
1974) 98

Diamond, Bernard L., "Inherent Problems on the U s e of

Pretrial Hypnosis on Prospective Witness,:
6 8 Cal.L.Rev. 313 (1980) 60,62,63,64
Dilloff, Nail J., "The Admissibility of Hypnoti-
cally Influenced Testimony," 40 Ohio N.E.
L. Rev. 1 at 4 0 5 ( 1 9 7 7 ) 59,61,63,64

F l o r i d a Constitution
a. A r t I. 59, Fla.Const. 84
b. Art. I S15a of Fla,Const. 93
C. Art. I 516 Fla, Const. (1968) 51
d. Sll, Declaration of Rights, Fla.Const. (1885) 51

Florida C o u r t Rules
a. Rule 2.150, F1a.R.Crh.P. 83
b. Rule 3.1ll(a) F1a.R.Crirn.P. 91
c. Rule 3.152 (a)(1), F1a.R.Crim.P. 77
d. Fla.Bar Code Prof.Resp, ED 3-9 115

Federal Court Rules

a. Rule 8, Fed.R.Crim.P. 79,82
b. Rule 14, Fed.R.Crim,P. 80
0 c. Rule 7 0 2 Fed.R.Evid.
d, Rule 7 0 4 Fed,R.Evid.
104
104
Gustafson, G. , F o r e n s i c O d o n t o t o g y , "Bite Marks" (American
Elsevier Pub. Inc.; N.Y. 1966) 107

Holdsworth, History of English Law 156 1908 51

Pelanda, K.Lm, "The Probative Value of Testimony from
Hypnotically Refreshed Recollection" 14 Akron
L.Rev. 609 (1981) 59,61,63,64,65
Pluckett, T.F.T.; A Concise History of the Common Law,
5th ed. (Little, Brown & Co,, Boston, MA. 1956) 51

Skreckas (1874) Superarbitrium, betr. der Verlezung

Zweir Finger usw., V i s c h r . G e r i c h t Z . M e d . Band
22 98
Sopher, I.M., Forensic D e n t i s t r y , "Bite Mark Analysis"
[Thomas Publisher; Springfield, I11 (1976)] 106
Spector, S. & Foster, E., "Admissibility of Hypnotic
Statements, Is the Law of Evidence Susceptible."
38 Ohio State L,J. 567 (1977) 59,60,61,63
64,65

"Admissibility of Bite Mark Evidence,"

51 So.Ca1.L.R. 309 103

U.S. C o n s t . Amend. V 84

U.S. Const. m e n d X I V 84
W e b s t g y p s T h i r d Neu I n t e r n a t i o n a l D i c t i o n a r y ,
(Merriam Co.; Springfield, MA 1971) 110
 STATEMENT OF THE FACTS AND CASE

A. Pre-Arrest

THEODORE ROBERT BUNDY was placed in theTallahassee

vicinity on 7 January 1978 (Larry James Wingfield, R 7 9 5 5 ) .
BUNDY was allegedly a student (R 8011-8012) and went by the

name of "Chris Hagan" (R 79551. He resided at the Oaks Apart-

ment (R 8410), 409 West College Avenue, Tallahassee ( R 8163) #
several b l o c k s from the scene of the crime(.s) for which he
was accused.
Testimony was proffered (R 8193-8301) and allowed
before the jury that BUNDY was observed on the night of 14
January 1978, the night preceding the offenses, at a local
bar, by three ao-eds (R 8334~8407)w h o at t r i a l were permitted
to testify to BUNDY'S "unnerving" stare [Carla J. Black, ( R
8391)] and that his look "wasn't friendly." One co-ed, Mary
Ann Picano, who danced with BUNDY that night, was permitted
to testify that he looked "like an ex-con" ( R 8404) and that
she was scared of him ( R 8 4 0 7 ) .
One of BUNDY'S apartment mates, Henry Edward
Polombo, 111, and acquaintance, Russell Joseph Gage, testi-
fied to their having seen BUNDY on the Sunday morning of
the incidents, 15 January 1978, at 4:45 A.M. at the Oaks
Apartment (R 8410-ff). The jury was permitted to hear that

1
later on the same day in the company of the same duo that
BUNDY had allegedly commented that the offenses were prob-
ably the product of some lunatic ( R 8441) who was hiding
out and had probably done it before (R 8410). Also alleg-
e d l y BUNDY had at some disputed proximity in time ( R 9240)
made the boast that he "could get by with anything he want-
ed to because he knew his way around the law" ( R 8 4 4 2 ) .
Randal Clayton Ragans lost his vehicle tag on
13 January 1978 (R 7898). On 11 February 1978 Officer Keith

Daws observed BUNDY at a vehicle a short distance from the

Oaks Apartment (R 7920). Upon investigation BUNDY, wearing
new Levis, fled ( R 7920). Officer Roy Dickey a l s o alledg-
edly saw BUNDY in this time interval although he made n o r e -
port to that effect for more than a year ( R 7910). BUNDY
apparently was last seen in the Tallahassee area the Monday
dr Tuesday of the second week of February, 1978 CR 7 9 5 9 ) .
It was on 15 January 1978 that the offenses in
question were committed. The Indictment ( R 1-4) alleged
Appellant BUNDY to have been the perpetrator of b u r g l a r y of
a dwelling at 661 West Jefferson S t r e e t , Tallahassee, Leon
County, Florida, the Chi Omega sorority house whereh Margaret
Bowman and Lisa Levy were killedand Karen Chandler a n d K a t h y

Kleinnr were assaulted and battered. On the same night a t

431-A Dunwoody, Tallahassee, Leon County, Florida, it was

2
alleged that BUNDY burglarized the dewlling of and battered

the person of Cheryl Thomas. The Indictment, in six counts,

averred t w o capital homicides, two burglaries and three at-

tempted first degree murders.
B. Arrest
On 15 February 1978, one month after the inci-

dents, Officer David G. Lee of the Pensacola Police Depart-

ment observed an orange colored Volkswagen at 1:30 A.M. an
Cervantes Street (R 6 7 8 7 ) which aroused his suspicion.
Officer Lee made a U-turn ( R 6 7 9 0 ) and began following the
car for a stop. The officer turned on his blue lights and
ran a tag check ( R 6 7 9 1 ) The t a g came back stolen ( R 6 7 9 2 ) .

Officer Lee ordered BUNDY out of his car and "laid him out"
face down on the pavement in order to investigate the VW for
additional occupants ( R 6 7 9 3 ) . Back up units were en route
(R 6793). The officer had his pistol withdrawn from the
holster (R 6 7 9 3 ) . During the scuffle the officer deliber-
ately fired at BUNDY ( R 6 7 9 4 ) . BUNDY began t o run at which
time the officer fired a second round (R 6794). When Officer
Lee approached, BUNDY began yelling for help ( R 6 7 9 4 ) and
t r i e d to hold the officer's gun (R 6794). BUNDY was cuffed
and taken to the p a t r o l car ( R 6795). After EUNDY was read
his Miranda rights ( R 6795) he identified himself as Kenneth

Miser ( R 7 9 7 8 ) , and the jury heard further testimony over

timely objection ( R 7 9 6 6 , 7 9 6 9 ) t h a t BUNDY stated he "wished
you'd [Officer Lee] killed me. If I run at the j a i l will
you kill me then?" (R 7979). Issue was joined on the ad-
missibility of the statements and flight ( R 6 7 8 1 ) ; ruling
in the matter was deferred until the jury was selected and
sworn ( R 6782-6806). The evidence was admitted upon denial
of Defendant's Motion in L i m i n g as indicated (R 7 9 6 6 - 7 9 6 9 ) .
C. Post-Arrest/Pre-Indictment

Thereafter at 3 : O O A.M. on the same morning of

15 February 1 9 7 8 , Officer Norman N. Chapman, Jr. reported
f o r duty at the Pensacola Police Department where he met

THEODORE ROBERT BUNDY and took him upstairs to the inter-

view room ( R 6810); [he read the Miranda warning to BUNDY
which was signed at 4:15 A.M.] (R 6 8 2 0 ) . A tape recording
regarding the stolen vehicle and tag was made a t 4:25 A.M.
On the afternoon of 15 February 1978, Officer
Donald David Patchen, investigator ( R 6 8 2 4 ) with the
Tallahassee Police Department a l o n g with Investigator Steven
Bodiford of the Leon County Sheriff's Office arrived and met
with BUNDY ( R 6825).
At 9 : 0 0 A.M. on 16 February 1978 first appearance
was had at which time BUNDY still maintained his false iden-
tity ( R 6 8 9 5 ) . The State Attorney, Curtis Golden was present
with news media (R 6 9 7 5 ) . The Office of the Public Defender

4
w a s appointed (R 6895). The S t a t e A t t o r n e y , C u r t i s Golden,

w a s p r e s e n t w i t h news media (R 6 9 7 5 ) . The O f f i c e of t h e

P u b l i c Defender w a s a p p o i n t e d ( R 6895), and bond w a s d e n i e d

(R 6977). Later t h e same judge (Greenhut) e n t e r e d a pro-

t e c t i v e o r d e r ( R 6 9 7 9 ) i n e f f e c t o r d e r i n g t h e O f f i c e of t h e

P u b l i c Defender t o be n o t i f i e d of a t t e m p t e d i n t e r v i e w s w i t h

TED BUNDY. T a l l a h a s s e e Police D e p a r t m e n t o f f i c e r Don P a t c h e n

w a s p r e s e n t a t t h e h e a r i n g ( R 6 8 4 0 ) as were o t h e r law en-

forcement p e r s o n n e l (R 6 9 1 2 , 6 9 7 9 ) . A copy of t h e Order w a s

s e r v e d on O f f i c e r Norman Chapman, P e n s a c o l a P o l i c e Depart-

ment, shortly a f t e r i t w a s e n t e r e d ( R 6 9 0 3 ) . Assistant State

A t t o r n e y , Ron Johnson, Chief A s s i s t a n t , r e p r e s e n t e d t h e S t a t e

a t t h e hearing (R 6977).
BUNDY s t i l l known as Miser r e q u e s t e d t o call
M i l l a r d F a r m e r , an a t t o r n e y i n A t l a n t a ( R 6 8 9 5 ) . Farmer i n

t u r n t a l k e d t o O f f i c e r Chapman and a s k e d i f BUNDY had admit-

t e d t o any crimes ( R 6 8 9 5 ) . And M r . Chapman " t o l d him y e s ,

t h a t h e [BUNDY] had a d m i t t e d to t a k i n g t h e car and c r e d i t

cards . , .'I (R 6895). It w a s now t h e a f t e r n o o n of 1 6

February 1978 (R 6 8 9 5 ) . The lawyer a r r i v e d from A t l a n t a a t

5:30 P . M . (R 6895).

The A t l a n t a lawyer w i t h A s s i s t a n t Public Defenders

Michael Koran and T e r r y T e r r e l l went t o t h e p o l i c e s t a t i o n

where BUNDY w a s b e i n g housed r a t h e r t h a n t h e Escambia County

5
Jail (R 6980). The conversations were terminated at 9:45
P.M. - 1O:OO P.M. ( R 69821, leaving Koran with the im-
pression BUNDY had no disposition to talk to law enforce-
ment people ( R 6997). Koran advised Attorney Terrell to
make a point of getting with BUNDY early the next d a y ( R 6982).
The lawyers and law enforcement agreed BUNDY/
MISER could use the telephone for the next two hours to call
whomever he wanted ( R 6896) including former counsel ( R 6961)
in return for his true identity which he gave ( R 6896).
S h o r t l y a Washington [state] newspaper c a l l e d asking about

the "THEODORE BUNDY" who was wanted f o r murder ( R 6897).

Coincidentally the F B I was contacted and told ''one of their
ten most wanted people" was in custody ( R 6897), and the ID
was confirmed by a Pensacola Police Department ID offices,by
F B I flyer. The F B I flyer appears ( R 6 8 9 8 ) to be the same
one brought to Officer Chapman "to be signed by Mr. [THEODORE
ROBERT] BUNDY f o r [arresting officerj David Lee." ( R 6922)

That same night a press conference was set for 9:00 A.M.,
the next morning, 17 February 1978, by Officer Norman Chapman
"By the flagpole in front of the station, weather permitting"

( R 6898). Had Officer Chapman expected the turnout he would

"probably made the news conference for the auditorium." (R 6898).
BUNDY requested a priest (R 6899) who stayed until after mid-

night ( R 6 9 0 0 ) .

ti
 After midnight the priest left, Officer Chapman
took BUNDY to the more comfortable captain quarters which
w a s "better situated for things we needed to do." (R 6 9 0 0 ) ;
however the ''bug" equipment was not yet in place ( R 6 8 5 9 ,
6915). Notwithstanding, Officers Chapman, Bodiford and
Patchen recorded a statement taken from BUNDY (R 6 9 0 2 ) . The
initial session beginning at 1:29 A.M. ( R 6 8 5 5 ) lasted some

two hours (R 6902-6903). The machine was then turned offas

being ''too formal for the information." (R 6903). Officer
Chapman testified at trial from this session that BUNDYliked
college campuses where he would blend in with the students
( R 8011-8012).

At 7 : 3 0 A.M. on 17 February 1978 ( R 7006) Assist-

ant Public Defender Terry David T e r m 1 1 ( R 7001) returned to

the Pensacola Police Department to be told by Captain Joseph
and a Pensacola Police Department sergeant that BUNDY was a-
sleep (R 7006). Meanwhile at approximately 7:50 A . M . Officers
Patchen [Tallahassee Police Department] and Bodiford [Leon
County Sheriff's Office] again began another taped statement
from BUNDY (R 6830) which lasted some two hours.
Mr. Terrell went to court and saw Mr. Koran (R 7007).

Mr. Koran, senior attorney and Chief Assistant Public Defender

in Escambia County, sent Mr. Terrell back to the Police Station
(R 6 9 8 3 ) . Mr. Terrell with Assistant Public Defender Elizabeth

7
 I

Nichols ( R 7 0 2 6 ) returned to the Pensacola Police Department

to find the State Attorney Curtis Golden and Pensacola Police
officers engaged in the press conference ( R 7 0 0 7 ) . They
sought admittance through the back door, the normal entrance
f o r counsel ( R 7 0 0 7 ) , to be told they could not cane in as
the facility was c l o s e d ( R 7 0 0 7 ) . At the front door Assist-
ant State Attorney Ron Johnson met them and in reply to the
demands of counsel to see their client said, "you will have
to wait until this conference is over." (R 7 0 0 8 ) . Assist-
ant State Attorney Johnson further advised that "they were
in a very important part of the interrogation and that he
would not interrupt it to advise Mr. BUNDY * .I' (R 7 0 2 4 )

of the presence of counsel (R 7 0 0 9 ) .

The Officers Patchen, Bodiford and Chapman
"missed the press conference" (R 6 9 0 5 ) as they were still
interviewing BUNDY, but were informed by Assistant S t a t e
Attorney Johnson that the attorneys were outside wanting to
talk to Mr. BUNDY (R 6906). Counsel Terrell tried to contact
Judge Greenhut (R 7009), who was in court. Mrs. Nichols t r i e d
to contact her boss, Public Defender Jack Bahr (P 7010).
Assistant State Attorney Johnson came back out again and
again to bar counsel access to their client, "at least four
times," t w o times at the front of the jail and then one time
in the hallway . . and then another time some period later,
where he came out" . . . (R 7010). The twenty-four hour session
( R 6915) ended.

8
 Mr. Koran returned to the police department at
approximately 11:OO A . M . after court ( R 6984). Mr. Koran
then caused an affidavit to be prepared which reflected
BUNDY no l o n g e r wanted to be questioned ( R 6985). M r . BUNDY
then emotionally upsetl close to tears, incessantly smoking,
mumbling, repeating things over and over again ( R 6986)
signed (R 6985).
However, on 18 February 1978 at 12:15 A.M. (R 268;

6855) BUNDY was again interviewed by Officer P a t c h e n and

Bodiford and taped without counsel and without his knowledge

(R 6860). Another session without notice to counsel ensued
at 9:00 P.M. on the evening of 18 February 1978 (R 6 8 5 6 )
being the last taped session in Pensacola. On 19 February
1978 BUNDY was again interviewed by Tallahassee law enforce-
ment at 1 2 ~ 1 5A.M. (R 6856) without counsel andtaped without

knowledge of the electronic surveillances; and again at 6:OO

P.M.; again at 12:47 A.M. on 20 February 1978; at 1 1 : O Q ~ P . M .
on 20 February 1978; at 12:40 P.M. on 2 2 February 1978; (R

6857-6858); at 1:00 A.M. on 23 February 1978; at 1O:OO A.M.

on 3 June 1978 and 11:OO P.M. on July 1978 ( R 269), the

latter being at the Leon County Jail (R 268-269; R 6858).
The State did not seek admissian of any statement subsequent

to 17 February 1978 [per prosecutor Assistant State Attorney

Dan McKeever, ( R 6856)J. The trial judge granted the Motion

Y
to Suppress Statements with. the exception of the statements
as noted above ( R 7 0 5 3 ) .
D. Pre-Indictment P r e t r i a l Proceedings
1. Search & SeizureCs)
The Record on Appeal as further supplemented
does not reflect significant activity after arriving in Leon
County on 19 February 1 9 7 8 , until the indictment was handed
down on 27 July 1978 (SR 1-ff). However, interviews of the
Defendant continued a s indicated.
Proceedings on 27 April 1 9 7 8 (R 1690) reflect that
Judge John Rudd entered an order on 1 7 March 1978 compelling
the production of handwriting exemplars (K 1692). These pro-
ceedings are relative to case no. 78-125, auto theft-burglary,
Second Judicial Circuit, Leon County, Florida, ( R 135, 1690),
not 78-670 the burglary-homicide cases ( R 11, of the instant
appeal, nevertheless the State requested all defense discov-
ery to be cut o f f (R 1694) because of Defendant's non-com-
pliance with discovery orders to produce exemplars. The
motion was granted (R 162, 1701).
On the same day, 27 April 1 9 7 8 (SR 81, 16901, a
search warrant of a rather unique nature was executed. The
warrant was signed on 16 April 1 9 7 8 ( R 5, SR 103) directing
the then Sheriff of Leon County, Ken Katsaris and deputy
sheriff, Captain Jack Poitinger and all and singular the

10
deputy sheriffs of Leon County, Florida, to search and seize
the mouth of THEODORE ROBERT BUNDY. The search warrant com-

manded the officers to seize the person of THEODORE ROBERT

BUNDY and search his mouth under the supervision of Dr.
Richard Souviron and seize from his mouth wax casts and im-
pressions of his upper and lower teeth, geltrate impression
of BUNDY'S bite and six close up photographs of the teeth
(R 5, SR 102). The written report o f findings by Dr. Souviron
was ordered to be filed within thirty (30) days from execu-
tion of the warrant ( R 6, SR 102). The time period was e x -

tended by court order (R 7) upon the State's request (R 5-6).

The report related to the victim Lisa Levy only ( R 81, the
victim in count three of the Indictment ( R 1). The Report

dated 6 June 1978 (R 8-12) speaks for itself, but in pertin-

ent part, found (R 11):
A. The marks located on the left buttock
are human bites.
B. The bites show little vital reactions
were made around the time of death or
shortly after.
C. The assailant's lower teeth marked
closest to ruler. The upper teeth
marked farthest (sic) from the ruler.
D. The position of the head of the as-
sailant was therefore toward Ms. Levy's
head with her face lying down.
E. There are two distinct marks from the
lower teeth.

11
 F. There are three indistinct marks
from the upper teeth.
G. The same person made both bite
marks I

Dr. Souviron concluded, "It is my conclusion, therefore,

that both bites made on the left buttock of Ms. Levy, uithin
reasonabZe d s n t a Z certainty, were made by Mr. THEODORE
BUNDY." (emphasis added) ( R 12).

2. Grand Jurv
The issue concerning pre-indictment right to
c o insel (R 2642) w a s initially set into motion by Assistant
Public Defender Joe N u r s e y (R 2 6 4 4 , SR 2 6 6 1 , who on or about
18 July 1978 (R 147) prepared and filed certain motions
prior to DefendantI s indictment on the present charges (R 1644).
Mr. Nursey had been appointed to represent EUNDY on auto bur-
glary and auto theft charges earlier and had been involved in
B U N D Y ' S representation since 1 9 February 1 9 7 8 ( R 1648, 2 6 5 3 ) .

BUNDY pro se filed a motion f o r pre-indictment appointment of

counsel (R 1645, 2652). The State responded ( R 2 6 6 7 ) that
the Defendant had no pre-indictment right to counsel and the
Public Defender: had no authority to appear (R 148) prior to
appointment. The motions came on for hearing on 21 July1978
( R 2665), SR 266-ff). The presiding Judge John A. Rudd de-
nied the request for public defender assistance (R 715, 2037),
on grounds of no statutory authority (SR 276). Be denied t h e

challenge to the grand j u r y on timeliness (SR 2 7 6 ) - Judge Rudd

then on the same date, 21 July 1978t called assistant Attorney
General George R. Georgieff and discussed the question of
the right to counsel prior to indictment and timeliness of
motions filed in connection with grand jury proceedings ( R
720) by the Office of the Public Defender. The particular
motions (R 705-714; R 1079-1088) were entitled "Motion to
Inform Defendant of Grand Jury Proceedings" (R 705, 1079);
"Motion for Temporary Restraining Order and Preliminary In-
j u n c t i o n Restraining Grand Juries from Returning Indictment
Against the Defendant" (R 707, 1081); "Motion for Voir Dire
Grand Jury" (R 7 0 9 , 1083); *Challenge to the Grand Jury"
(R 711, 1 0 8 5 ) .
The trial judge, Honorable John A. Rudd, then
reversed himself, on the ruling that "Mr. BUNDY hadno rigklt
to appointed counsel to present these motions" ( R 2644, 2665)
by entering a written order dated 24 July 1 9 7 8 ( R 715, 10891,
and having a hearing on 2 4 July 1 9 7 8 ( R 2034, SR 2 8 0 - 2 8 5 ) .
Defense counsel was contacted in the morning by the judge
(R 2 6 4 5 ) to be informed a hearing was to be held later the
same date, w i t h the motions being denied as untimely ( R 716-
717, 1090-1091) 1 August 1 9 7 8 nunc p r o t u n e 2 5 July 1 9 7 8 ( R
151, 717, 1 0 9 1 ) . The nunc p r a tune Order is styled "IN RE"
GRAND JURY INVESTIGATION J u l y 25-27, 1978" ( R 250, 716, 1090)
which is interesting since the Indictment was presented (R 41

13
and filed ( R 1) on 27 July 1978. The hearing of 25 July
1978 may be found in the Supplemental Record (SR 285-289).
In renewed form Defendant's counsel moved to
quash indictment (R 701-744) on grounds relative to the grand
jury. The motion came on for hearing before trial Judge
Cowart on 16 May 1979 (R 2640-2676) and was again denied
( R 2675).

E. Post-Indictment Pre-Trial Proceedings

1. Publicity
T h e issueofpre-trial publicity is a joint issue

with publicity at trial (R 2315). From the taking of depo-

sitions (R 2 3 0 3 ) to location of the media in the courtroom
(R 2437, 3791), from venue change. ( R 3 9 2 3 ) through the jury
selection process (R 4035-5518), the publicity attendant to
the case was in every way extraordinary. The media which 60

closely scrutinized the proceedings prompted defense motions

to seal certain motions and close pretrial hearings ( R 256),
Motion to Seal Transcripts of Depositions taken by the De-
fendant ( R 2 5 7 ) , Motion f o r Protective Order to Close the
taking of Depositions and to Seal the Transcripts of the
Testimony of Witnesses including Exhibits ( R 454-4611,Motion
to Prohibit Photography of Defendant in Restraints ( R 507-
510), Motion to Strike Portions of the Response filed by the
Florida Publishing Company to Defendant's Motions (R 599-602),

14
Motion to Exclude Electronic Media Coverage ( R 6 5 2 - 6 6 3 ) ,
Amended Motion to Exclude Electronic Media Devices from
Courtroom (R 6 6 5 - 6 6 7 ) , Motion f o r In Camera Hearing on
Motion In L i m i n g Regarding the Admissibility of Evidence
Purporting to Show Other Crimes ( R 686-6901, Motion f o r
In Camera Hearing on Motions I n L i r n i n e Regarding the Ad-
missibility of Statements ( R 691-6941, Motion for Change
of Venue (R 748-1072), Motion f o r In Camera Hearing on Mo-
tion to Exclude Testimony of N i t a Neary (R 1167-1172), MO-
tion for I n Camera Hearing on Motion to Suppress Tangible
Evidence seized in Utah (R 1180-1183), Motion to Seal De-
positions and to Designate Persons to be present at Depo-
sitions ( R 1185-1191), Supplemental Motion for Continuance
(R 1350-1354), Motion to Prohibit Further Prejudicial Extra-
judicial Statements by Leon County Sheriff Ken Katsaris ( R
1390-1398), Motion to Sequester Witnesses ( R 1399-14071,

Motion to Dismiss Jury Venire or, In the Alternative; to

Sequester the Jury Venire Until a Jury is picked (R 1413-
1420), Motion f o r Change of Venue or, in the Alternative, to
Abate the Prosecution to Blunt the Effects of Pervasive Prej-
udicial Pre-trial Publicity (R 1425-1428) I Motion to Exclude
Electronic Media Devices from the Courtroom (R 1437-1440).
It is Appellant's position that the pervasive uncontrolled
invasion of the media into the judicial arena violated his
right to a fair trial.

15
 2. Right to Counsel
The Indictment was returned 27 July 1978 ( R 1-
4) and the Record on Appeal for most material purposes com-
mences at that point. However on 25 J u l y 1978 ( R 725-744,
SR 280-284) Mr. Millard Farmer, E s q . of Atlanta, Georgia,
sought leave of court to appear p r o hac u i . c e . Pleadings to
that effect were filed on 2 8 July 1978 ( R 16-17), 31 J u l y
1978 ( R 24) and 2 August 1978 (R 31-32). Arraignment was
31 July 1978 ( R 17041 at which time ruling on the rnation(s1

was deferred until 2 August 1978 (R 1705).

At the hearing TED BUNDY was present in proper
person without formal counsel appointed CR 1712). The State
was allowed by the trial judge (Rudd) to proceed on a motion

to extend speedy trial over objection of Defendant ( R 1717)

after the court deferred hearing and ruling on the motion(s1
to appear p r o hue v i c e (R 1713). The motions regarding the
appearance of foreign counsel were filed j o i n t l y by Appellant
BUNDY and Mr. F a r m e r (11 16,- 24) and by Public Defender Michael
Minerva ( R 31). By written order of 3 August 1978 n u n c p r o
t u n e 2 August 1 9 7 8 , Circuit Judge Rudd denied the motions

without disposing of the issue sought to be reached herein,

namely Defendant's right to appointment of counsel p r o hac

Defendant p r o s e renewed and reiterated this PO-

16
sition requesting out-of-state counsel ( R 279-280) subsequent
to the designation of the ultimate trial judge Hone Edward D.
Cowart (R 281). Judge Cowart entered his order Denying Ad-
mission P r o Hue V i c e ( R 438- 442) on 2 1 February 1979 address-
ing both the rights of out-of-state counsel and the S i x t h
Amendment rights of Defendant BUNDY ( R 4 3 9 ) . The transcript
of the hearing on the renewed motion before Judge Cowart is
found in Volume 22 ( R 2 0 2 2 - 2 1 5 6 ) .
3. Discovery
Arraignment was h e l d on 31 July 1 9 7 8 ( R 1706):
on 14 August 1 9 7 8 (R 18-23) the state's motion to continue
was granted ( R 1 7 8 4 ) on grounds of complexity. Each party
filed motions to compel discovery (R 74, 77)lwhich were heard
on 2 5 September 1978; in substantial portion each p a r t y re-
ceived relief ( R 1 7 8 8 - f f ) *

On 2 October 1 9 7 8 at the pretrial conference the

Defendant moved to continue an grounds that lab reports and

discovery disclosures were late i n forthcoming making it im-
possible to prepare f o r the trial scheduled on 3 O c t o b e r 1 9 7 8
( R 1813-ff). The motion to continue was granted ( R 1851) in
open court and in the presence of prospective jurors in
Tallahassee, Leon County, Florida.
The record r e f l e c t s continued updating of dis-
covery ( R 8 4 , 106, 1 0 7 , 1 2 1 , 132, 241, 2 7 7 ) . Additional

17
matters in regard to the disqualification of the trial judge
(R133-226, 229-232) Motion to Dismiss and Motion f o r Contempt
[Souviron] ( R 116-120, 1 2 6 - 1 2 8 , 129-131), further motions to

continue ( R 2 3 4 - 2 3 8 , 242-247) Motion t o Suppress Evidence ( R

248-255) were f iledl land heard b u t are of no direct consequence
at this point to the appeal.
On 9 January 1 9 7 9 (R 281) Hon. Edward D. Cowart
was appointed by this Court to preside over trialproceedings.
Many of the issues previously raised were renewed, Defendant
moved for appointment of out-of-state counsel ( R 2 7 9 - 2 8 0 ) .
An additional motion to compel discovery was filed ( R 283-
286) as were motions for extension to file motion to dismiss

indictment (R 2 8 9 - 2 9 0 ) and additional discovery (R 412, 419).

Defendant was being represented by the Office of the Public
Defender Second Judicial Circuit CR 2 0 3 7 ) .
4. Pre-Trial Evidential Issues
With the first trial commencing 12 June 1 9 7 9 (R
3791) and concluding that same day ( R 3923) upon the granting
of a change of venue f r o m Tallahassee to Miami, Florida, the
intervening weeks and fifteen volumes of the record on appeal
will be capsulized into issues regarding evidence which for
various reasons to be respectively discussed hereafter take
on significance in this appeal.
One of the pertinent issues i s t h e m o t i o n t o sever
filed 12 February 1979 ( R 4 2 9 - 4 3 0 ) . The record reflects al-
most daily efforts made to control the pervasive pre-trial
publicity in the case as itemized above.
On 26 April 1979 Defendant filed separate notions
to suppress the testimony of witnesses P i c a n o , Bastings, and
Nita Neary ( R 670-6751: Nita Neary being the purported e y e -
witness in the case. On 2 May 1979 Defendant filed separate
motions in ZimCne to exclude statements and to suppress state-
ments ( R 6 9 5 - 6 9 9 1 " Defendant's first motion for change of
venue was filed on 9 May 1979 (R 748-1072). The disposition
of which was previously noted, On 9 May 1979 Defendant ailed
a motion in Liming to suppress testimony pertaining to the
bite mark identification (R 1122-1124) and motion to strike
testimony of state's expert and forensic odontologist (R 1140-
1144) 1) On the Same day motion to suppress tangible evidence

seized as a result of unlawful search in Granger, Utah was

filed (R 1173-1174) together with Defendant's motion toquash
search warrant (bite mark) ( R 1175-1179). Volume 2 7 of the
record on appeal (R 2432-ff) begins the hearing on these issues
of critical concern.
As to the issue of publicity, the Court found
that there was a presumption toward dissemination ( R 2518)
unless clear and present danger was present and no remedy
through channels (a) v o i r dire (b) additional peremptory

19
challenges, or (c) no other order would accomplish the pur-
pose. In an ensuing in camera inspection (R 2526) the Court
decided to keep certain matters closed to the public until
the jury was sequestered (R 2539) and defierred rulings (R 2546)
on certain motions. O t h e r motions were called up f o r hear-

ing; the motion to dismiss was denied ( R 2 6 7 5 ) ; the motion

to suppress Nita Neary testimony was continued until after
the jury selection (R 2 7 4 9 ) ; the ruling on the bite mark
search warrant was a l s o deferred (R 2 7 5 1 ) ; the motion to
close the hearing was denied as to bite mark testimony from
Dr. Souviron (R 2 8 1 0 ) .
Testimony was taken as to the admissibility of
the bite mark evidence. After extensive testimony from Dr.
Souviron and Dr. Lowell J. Levine ( R 2930) motion to close
the hearing was renewed ( R 2 9 7 2 ) ruling upon which was de-
ferred (R 2 9 8 7 ) . Then after adjourning in camera ( R 2 9 9 2 )
the Court found no clear and present danger and continued
the hearing ( R 2765-3314) which concluded with the testimony
of Dr. Dwayne DeVore, Chairman of the committee working on
standards of bite mark in comparison (R 3260). The compet-
ing position of the witnesses for the State, Dr. Souv~Lron,Dr.
Levine, and Dr. DeVore for the defense was that within a
reasonable dental certainty, taking the evidence most favor-
able to the prosecution, the bite marks were those of BUNDY

20
(R 3114). Dr. Souviron ( R 28731, Dr. Levine ( R 3 0 4 9 ) and
Dr. DeVore (R 3202) did agree that no standards exist for
bite mark analysis. Dr. DeVore went s o far as to say that
the situation presented was so incongruous that something
was wrong; that if the tissues were correct the photos
were wrong, and if the photos were correct the tissue sample)
was wrong (R 3219). Espousing doubts as to the impartiality
of Dr. Souviron, the court deferred ruling on motion until
the taking of testimony at trial ( R 3 3 5 7 ) .
On 31 May 1979 ( R 3470) situational developments
between counsel and Defendant precipated with the defendant
requesting replacement of counsel ( R 1262-1266). The motion
was predicated upon the choice of counsel to move for a com-
petency hearing of Defendant ( R 1280) over the objection of
the d e f e n d a n t . The matter came on for hearing ( R 3 5 8 0 ) in-
itially on efforts to close the hearing (R 1281-1283). Attorney
Brian Hayes (8 3600) was appointed to represent the Defendant
and appeared at the a c t u a l hearing held 11 June 1979 (R 3615);
the hearing concluded with the finding of competency (R 3659).
The Defendant moved to discharge the Office of Public Defend-
er without waiving his right to counsel ( R 1 2 6 2 - 1 2 6 6 ) which
led t o the o n l y counself court appointed, with any previous
capital case experience, Michael Minerva,to withdraw ( R 3677;
1519-1520).

21
 F. Trial Proceedinas in Tallahassee
The motion to continue on grounds involving
venue was under advisement ( R 3762) when initial trial pro-
ceedings began 12 June 1979 in Tallahassee ( R 3791). Indi-
vidual v o i r dire (R 3764, 3812) commenced with the defense
being granted twenty-five (25) peremptory challenges (R 3810).
After a series of jurors were excused f o r cause, the change
of venue w a s granted (R 3 9 2 3 ) . The order changing venue was
filed the same day, 12 June 1979 ( R 1347). Trial was reset
for 25 June 1979 (R 3923) in Miami.
G. Trial Proceedings in Miami
During the interval between trials, little ad-
ditional l e g a l positioning is evident from the record. On
the day the trial commenced, 25 June1979, a number of motions
were filed including Motion to Improve Conditions of Confine-
ment, ( R 1372-1377), Motion to Continue ( R 1378-1380), Motion
to Compel Discovery (H 1384-1389), Motion to Prohibit Further

Prejudicial Extrajudicial Statements by Leon County Sheriff

(R 1390-1398), Motion to Sequester Witnesses ( R 1399-14071,
the state's motion f o r competency hearing ( R 1412), motion
to prevent disqualification of jurors because of views on
capital punishment (R 1421-1423). Several other additional
motions were filed including a request for additional pre-
emptory challenges (R 3951); however, the foregoing reflect
the most pertinent issues at this junction.

22
 1. Jury Selection
Jury selection continued through 3 0 June 1 9 7 9
ending with the selection of alternates ( R 5 5 5 2 ) . Several
jurors were excused because of scruples concerning the death
penalty (R 4205, 4 2 7 4 , 4617, 5386, 5492 . With camera aimed
at defense table ( R 3 9 6 9 ) and parabolic mike on ready, t h e
trial began ( R 4949). Individual v o { r ire revealed grounds
for challenge for cause time and time again. The primary
grounds f o r cause was predisposition aroused by the pervasive
publicity surrounding the case ( R 4036-4201) as the initial
half dozen jurors called w e r e so infected. A juror noted

one would "have to be in Siberia" ( R 5466) to have avoided

the publicity about the case. In fact all prospective jurors
had indeed heard about the case save one ( R 5086).
During the examination of one j u r o r , it was dis-
covered that in the jury pool room prospective jurors w e r e
talking (R 5149) that they were afraid Defendant BUNDY would
have friends on the outside t h a t would get them (R 5147). The
juror testified that the conversation affected people there
(R 5149) precipatating a motion to strike those prospective

jurors sequestered on the fourth floor (R 5115). The Court

caused and expedited v o i r dire (R 5149) regarding t h a t issue
and denied the motion to strike the mini-panel IR 5161).
Motion was later renewed and denied regarding the fourth floor
mini-panel ( R 5342)
 Approximately twenty-four (24) j u r o r s were ex-
cused due to their knowledge of the case gained through pre-
trial publicity ( R 4080-4103, 4144, 4201, 4255, 4313, 4314,
4408, 4506, 4594, 4629, 4630, 4704, 4759, 4900, 4930, 4965,

4968, 4981, 5080, 5161). Defendant's request for additional

peremptory challenges was denied ( R 5 2 3 0 ) .
2. C o u n s e l at T r i a l

The issue of effectiveness of counsel has been

previously raised by Appellant in a separately filed plead-
ing. As mentioned, no court appointed counsel had capital
case experience ( R 9822) and the trial judge denied the de-
fendant's request for an evidentiary hearing on the issue of
effectiveness of counsel (R 10,079). While the t r i a l judge
desired the issue to be raised on appeal and not ten years
down the road ( R 9 0 4 5 ) , it is impossible to brief the issue
meaningfully without a fullrecord regarding the points raised
by Appellant's Motion for De Novo Hearing on Effectiveness
of Counsel.
Appearances on behalf of the Defendant included
Mr. Edward Harvey, Ms. M a r g a r e t Good and, Ms. Lynn Alan Thmnpson
Assistant Public Defenders, and Mr. Robert M. Haggard, vol-
unteer private counsel; on behalf of the state, Hon. Harry
Morrison, S t a t e Attorney; M r . Larry Simpson, M r . Dan McKeever,
and Ms. Lyndia Kent, Assistant State Attorneys (R 4190).

24
 As to effectiveness of counsel, the issue will
be broken down into (1)failure to appoint supervisory c m e l
with experience in c a p i t a l cases, ( 2 ) the trial court denial
of an evidentiary hearing on the effectiveness of counsel,
( R 10,079, 10,130) and ( 3 ) evidence of counsel ineffective-
ness.
3. Evidential Issues at Trial
Defendant's Motion to Compel Discovery ( R 1384-
1389) was filed on 25 June 1979 and was taken under advise-

ment until the jury was selected (R 3962). The Motion sought
a "letter written by one Howard Anderson, now deceased, who
took his own life after admitting to perpetrating the crimes
with which the defendant is charged" (R 1384); "The letter
wrapped in tin foil received by Sheriff Katsaris frcPnAtldnta
which contained admissions and several details of the crime
which had not y e t been published in the newspaper." (1984):
"The substance of the confession written on the wall of the
Rose Printing Company, Tallahassee, as well as the identity
of the author and any statements given by him to any police
officer." ( R 1384-1385) ; "the transcripts or substance of
any statements made by any of these named suspects and the
identity of the person to whom such statements were made;'!
( R 1386). The state at hearings on 2 July 1979 did not oppose
the letters b e i n g disclosed (R 5 6 6 3 ) as well as the Rose
confession ( R 5665) -

25
 I

The court then considered matters of daily tran-

scripts and grand jury testimony, before going intoevidential
issues of Defendant's Motion to Suppress Testimony of Nita
Neary (R 670-672; 5691). Defense counsel sought to waive De-
fendant's presence at the hearing during the testimony of the
witness, Nita Neary. The request was denied (R 5692).
By s t i p u l a t i o n the s t a t e proceeded to put on evi-
dence first regarding identification (R 5691). Ms. Nancy Dowdy
testified that Nita Neary told her of seeing a male in light
pants and a jacket with a ski cap and something in h i s hand
leave by way of the front door shortly before the facts of the
incident on the night in question were known ( R 5702-5703);
the male being somewhat bigger or taller than the C h i Omega
houseman, Ronnie Eng ( R 5706-5707).
Ms. Dowdy w a s followed on the stand by TPD Officer

O s c a r Brannon who testified to receiving the initial descrip-

tion of a "white male, young, approximately five feet eight

inches tall, approximatelya 160 pounds, slender build, clean
shaven, had a large distinguished nose, protruding nose, a
dark complexion, smooth; last seen wearing a dark tobaggan
type cap, a waist length dark jacket, light colored pants,
and carrying a large stick" ( R 5800). Officer Brannon dis-
patched the description to other field units ( R 5798). On
cross examination the Officer recited to arriving at the Chi
Omega house at 3 : 2 3 A.M.

26
 Investigator Stephanie Wright of the Lean County
Sheriff's Office was next called (R 5 8 5 1 1 and testified to
her interview of Ms. Neary had on 15 January 1978 sometime
between 5:OO A.M. and 7:30 A.M. (R 5853). Officer Linda Presnell,
FSUPD, testified she arrived at the Chi Omega house at 4:OO
A.M. on 15 January 1978 ( R 5 8 8 2 ) and related her interview of
Ms. Neary ( R 5 8 8 3 - 5 8 8 7 ) . Later on that evening Ms. Prescott
went back over to the sorority house with an artist named

Kenniston who drew sketches of Ms. Neary's description (R 5888).

The six sketches were introduced at the hearing ( R 5 8 8 8 - 5 8 8 9 ) .
Ms. Prescott was followed by Captain Jack Poitinger, Commander
of the CID unit of the Leon County Sheriff's Office ( R 5931).
Captain Poitinger was later made case agent or
officer in charge o f the case (R 5 9 3 2 ) . Captain Poitinger re-
lated the substance of the hypnosis session conducted on 2 3
January 1978 on the witness Ms. Neary ( R 5 9 3 4 ) . Tapas of the
session were marked and introduced into evidence (R 5936-5937).
Captain Poitinger on 6 April 1978 went to Muncie,
Indiana, to conduct a photographic line-up with Ms. Neary ( R
5944). The actual photo spread was shown Ms. Neary on 7 April
1978 consisting of ten (10) separate pictures (R 5 9 4 6 ) of
different persons. Defendant BUNDY'S picture w a s in position
four ( R 5 9 4 7 ) , Defendant having been taken into custody on
15 February 1978. The session was also tape recorded ( R 5948).

2 '7
 I

Ms. Neary had seen photographs of BUNDY in the media (R :5949).

Ms. Neary picked out number four stating ''I don't know: p m t y
definite resemblance". (R-595J). A s to the hypnosis session,
Captain Poitinger admitted from it the investigators "were
able to obtain the c o l o r of the hair". ( R 5956). The tapes
and the photo line up are a. part of the exhibits and record
(R 5936, 5952) and need to be examined (Exhibits 9, 10, 12,
13; R 1534, R 6433).
The witness N i t a N e a r y was called (R 60231.. She
testified having arrived from a fraternity party at about3:OO
A.M. ( R 6 0 2 5 ) and having had "a few beers" (R 6026). She
entered through the back door combination lock ( R 6026) walked
through the recreation room i n t o the living room where she
heard a loud thump ( R 6 0 2 7 ) . Thinking her date might have
fallen down (R 6 0 2 7 ) she walked out toward the stairs to l o o k
out. Going back through the recreation room, she heard some-
one running upstairs ( R 60281. Upon getting closer to the
s t a i r s in the foyer, she heard somebody running down thestairs,
and at the front foyer she saw a man at the door (R 6028)I with
h i s left hand on the doorknob in a stooping posture (R 6031).

She saw only a profile (R 6032). The man w a s carrying a club

with a dark sock around the middle (R 6 0 3 2 ) . She recalled a
dark complexioned, slightly built, clear complected man, a-
round five feet eight inches (5'8'') in height, one hundred

28
 I

sixty-five (165) pounds with a prominent pointed nose wear-

ing a dark jacket and light pants (R 60331, and a stocking
cap, pulled down to his eyebrows, was over his hair and ears
( R 6034). She saw him in motion for a matter of maybe three
seconds ( R 6034); she maintained a still conception from see-
ing him stop f o r a fraction of a second at the door (R 6032).
Her first thought was ''What was Ronnie Eng [the houseboy]
doing in the house?" ( R 6035). The victims were then found
and police called ( R 6037-60401.
As to the photo a r r a y , Ms. Neary said she initial-
ly picked out two photographs before eliminating one ( R 6047).
She further testified of having had occasion to see the De-
fendant BUNDY at the Tallahassee trial in October ( R 6050).
Upon request by the s t a t e , the court orderedevery-
body in the courtroom stand and turn a right profile to the

witness ( R 6051) including the Defendant who was at counsel

table (R 6053). The witness then identified Defendant -RE
ROBERT EUNDY ( R 6 0 5 6 ) . Ms. Neary also acknowledged seeing
the series of newspaper photographs of BUNDY published after
his arrest ( R 6137; Exhibits A-1, A-2, and A-3, R 1534).
Officer George C. Brand of the Leon County-Sheriff's-
Department was called by the defense and testified t h a t on 23
January 1978, prior to the hypnosis session Ms. Neary desaikd
to Mr. Brand the person she saw at the State Attorney's Office

29
in Tallahassee (R 6271.). . Ms. Neary an t h a t occasion described
a l i g h t complexioned male about five feet ten inches to five
-
feet eleven inches (5p10'' 5'11'') in height (R 6274). Officer
Raymond C r e w was called and testified to h i s initial BOLO (R
6347). The artist next testified that Ms. Neary told him she
might be able to recognize the man she saw (R 6398).
Detective (sic) James Steven Bodiford, of the Leon
County Sheriff's Office played a taped telephone conversatian
w i t h Nita Neary's mother which appears in the Record (R 6403-

6409). The conversation was 14 Mar& 1978 (R 6402) Mrs. Neary

s t a t e d that Nita Neary had seen BUNDY'S photos in the news-
paper and wanted to see a profile (R 6407). Mr. Bodiford ad-
v i s e d Mrs. Neary t o keep N i t a Neary from seeing more pictures
because "that i s what is called a tainted line-up" ( R 6 4 0 8 ) .
Mr. Bodiford next played a tape of a telephone conversation
between himself and Nita Neary (€t 6411-6414). M s . Neary couldn't

guarantee, but . I could say he resembles him'' IR 6411).

Ronald Eng, the houseboy, w a s called for comparison (R 6 4 2 4 ) .
An expert in hypnosis, Dr. David S. Ruypers, was
called and qualified ( R 6427). and finally tendered as an ex-
pert in the field of clinical psychology and hypnosis (R €432).
The witness having previously examined reports, interviews,
tapes andphotos ( R 6433-6436) used the state's hypnosis s e s -
sion to cite examples of inappropriate suggestions ( R 6443,

3ir
6445, 6447, 6448, 6452, 6454, 6463, 6465, 6469, 6472, 6482,
6485). In Ms. Neary!s subsequent conversation on tape with
the Sheriff of Leon County, the witness identified responses
to post hypnotic suggestion CX 6489, 64911. The witness in-
dicated that Ms. Neary !'produced items or altered details"
( R 6 4 9 3 ) as a result of positive hallucination CR 6455, 6459)
and hypnotic suggestion, leaving the qreater probability of
certain production responses rather than actual recall (R
65061 resulting in contamination (R 6504). The court de-
' f e r r e d ruling until a f t e r the hearing on the motion to sup-

pres Utah evidence CR 65111,

The trial proceedings, jury absent, next went
into the search and seizure relative to THEODORE ROBERT BUNDY
(R 65111 in Granger, Utah. The Utah motion is actually titled

C n Zimine ( R 681-685). The evidence the state sought to use

stemmed from a stop, search and seizure two and o n e - h a l f (2%)

years earlier in Granger, Utah (R 682) on 16 August 1975. A

small crowbar, a ski mask, and pantyhose were seized from the
car that BUNDY was driving ( R 6518-6519). The trial j u d g e
finding res j u d i c a t a as to the legality of the search and
seizure by virtue of the Supreme C o u r t of Utah having ruled
in the area (R 6690) found the evidence inadmissible ( R 7832)
and went on to rule on the admissibility of the Nita Neary
testimony CR 6691-66971. in denying the motion to suppress.

31
 Hearings continued as to collateral crimes wherein
it was established that Randall Raggins had lost a tag on or
about 13 January 1978 (R 6697) and Officer Ray Dickey, TPD had
seen BUNDY (Brief of Appellant p . 2 1 . The hearings on the ad-
missibility of statements o$ the Defendant in Pensacola as
previously noted followed (BOA 5 2 . The statements and tapes
were ordered suppressed (R 7Q531, The Notion to Sever came
an to be heard ( R 70591 on evi'dence proffered by counsel,
rather than the t a k i n g of testimony (R 7060-7067) and was de-
nied (R 70791. The trial judge heard argument on the previ-
ously deferred motions to quash bite m a r k sea.rch warrant and
motion to suppress evidence of the bite mark identification
(R 7079)- and denied t h e motions (R 7 0 9 9 ) .

4. Opening Argument
After opening argument by the state (R 7106-71271,
the defense (R 7127-7145) presentation was somewhat feeble by
virtue of approximately fifteen (15) objections being s u s t a i n e d .
Counsel's comments [Haggard] were not the proper o b j e c t of
opening argument (R 7128, 7133, 7134, 7135, 7136, 7137, 7138,
7139, 7141, 7142, 7143, 7144, 7145). The defense presented
w a s that BUNDY was not t h e person who conunited the crimes
alleged ( R 7127).

32
 5. Trial Testimony
The first major witness, Ms, Nancy Dowd, took the
stand (R 7135) and testified in substance as earlier outlined.
Oscar Brannon netestified as to the Nita Neary description
(R 7 1 8 9 ) and finding moss and bark. Henry N e w i c k (R 7 2 1 8 )
found victim Margaret Bowman (R 7223) with fractured skull and
bark on the bed. Raymond Crew (R 7 2 3 8 ) found victim L i s a Levy.
The trial was briefly recessed for the deposition of victim
Cheryl Thomas of the Dunwoody incident who was not previously
deposed due to media attention CR 7 2 7 2 ) . Two girls from the
sorority were called who basically testified they had seen the
deceased victims alive earlier t h a t evening (R 7279, 7 2 8 9 ) .
The emergency medical technicians told of the con-
dition of victim Lisa Levy ( R 7300). Victim Karen Chandler
( R 7 3 2 0 ) and Kathy Kleiner [DeShields] (R 7327). each related

being battered and having no idea of the identity of the assail-

ant or assailants.
Ms. Debra Ciccarecci (R 7 3 2 9 ) of the Dunwoody ad-
dress ( R 7 3 3 0 ) testified ta having heard thumping noises be-
low her upstairs apartment ( R 7 3 3 3 ) prompting her to call the
police (R 7 3 3 4 ) . Apartment mate, Ms. Nancy Young, heard some-
one exit through the Dunwoody address kitchen (R 7353). Officer
Wilton Dozier of the Tallahassee P o l i c e Department testified
the Dunwoody address to be about two m i l e s from the Chi Omega

33
address (R 7360) and to finding pantyhose at Cheryl Thomas'
apartment at Dunwoody Street (R 7369). Deputy Mary Ann Kirkham
was dispatched to the Dunwoody Street apartment where she
took pictures (R 7143). The pantyhose became characterized
as a "mask" ( R 7420, 7423, 744l).. Officer Bruce Johnson c o l -
lected the evidence at the Dunwoody apartment (R 7443)_. Vic-
tim Cheryl Thamas testified that late 14 January 1978 or
early 15 January 1978 she went to sleep (R 7 4 5 9 1 only to wake
up in the hospital. She testified she had had no sexual re-
lations that night ( R 7474).
Officer Howard Winkler (R 7476) was dispatched
to the Chi Omeqa house ( R 7477) and took pictures of the house
and crime scene (R 7481-ff) including pantyhose around the
neck of victim Margaret Bowman (Exhibit 3 3 ) . Hanes pantyhose
were also seized from the soorn of Lisa Levy together with a
hairspray bottle nine (9) days later (R 7689; Exhibits 56 and
57)
Dr. Thomas P u r c e r Wood, the pathologist was called
out of turn ( R 7694) in order to establish the necessary pred-
icate for FDLE forensic serologist, Richard L, Stephens ( R
7690) who had examined swabs and blood samples (Exhibits 58,
59, 60, 61 and 6 2 ) taken from the respective victims. His
findings :

34
 1. Karen Chandler (R 7702-ffl

a. "All Blood group A

b. ''BA" Erythrocyte Acid Phosphatase

c. "1" Estrase D type
d. " 2 - l t 1 Phosphoglucoutase type
e. ''1" Adenylate Kinase
2. Kathy Kleiner (R 7704)
a. "All Blood group
b. ''BA" E r y t h r o c y t e Acid Phosphatase
c. ''1" Estrase D type
d. "2-1" Phosphoglucoutase type
e. ''1'' Adenylate K i n a s e
3.

a. " 0 " Blood group

b. "BA" Edythrccyte A c i d Phosphatase
c. ''1" Estrase D type
d. "1" Phosphoglucoutase type
e. Adenylate Kinase
r'l"

4.
a. " 0 " Blood group
b. "BA" Erythrocyte Acid Phosphatase
c. "1" Estrase D type
d. 1r2-1t1 Phosphoglucoutase type
e. ['l'' Adenylate Kinase
5. Cheryl Thomas (R 7706).
a. "0" Blood group
b. r'BA" Erythrocyte Acid Phosphatase
c. I'llt Estrase D type
d. ''2-1'' Phosphoglucoutase type
e. "1" Adenylate Kinase

Ms. Laura Evans Nixon established the i d e n t i t y of

both of the deceased (R 7 7 7 9 ) ; Dr. Thomas Purcer Wood, the

pathologist, (R 7 7 8 2 ) testified to the autopsy results of the
victims. Lisa Levy was knocked unconscious, bitten on the

35
breast and buttock, sexually molested vaginally and anally,
and strangled ( R 7 7 9 6 ) . Margaret Bowman was strangled to
death ( R 7802) showing no anal or vaginal trauma (R 7 8 0 5 ) .
Testimony was elicited as to hair samples seized
and analyzed ( R 80251. Ms. Patricia Ann Latsko, microanalyst
with FDLE compared the Defendant's hair with hair fn the
pantyhose found at Dunwoody Street ( R 8077). The comparison
results were not an absolute identification ( R 8084), but
the sample from the Dunwoody pantyhose microscopically "could
have came from the same source as the standard of THEODORE
BUNDY" ( R 8 0 7 4 ) . No ABO blood grouping tests were run on
the hair ( R 8159) I no scale count, no scale index test (R 8159),
no refraction index test, and no electron scan t e x t were per-
formed CR 8160).
Deputy William P. Gunter, sergeant with the Leon
County Sheriff's Office ( R 8162) processed room 12, 409 West
College Avenue, Tallahassee, on 16 February 1978 (R 8164)
which is the address previously attributed to TED BUNDY. He
testified to obtaining lifts from outside the apartment but
no latent lifts of evidential value from inside, appearing to
him as if the room had been wiped (R 8167) or cleaned. Mr.
Daniel G. Hasty, FDLE latent p r i n t analyst ( R 8171) matched
the latents from the outside door panel of the Oaks Apartment,
409 West College, with the Defendant (R 8174). No lifts from
the crime scenes compared to BUNDY.

3b
 The trial in the absence of the jury (R 8193)
proceeded into attempted suppression of the Hastings-Picano-
Black testimony (BOA 11, and concluded with the judge allow-
ing the testimony (R 8301). That testimony before the j u r y
was next presented ( R 8334-8407), and was followed by the
residents of the Oaks Apartments, also earlier connoted (.BOA
1-2). The chain of custody as to the sketches of the person
allegedly seen by t h e witness N i t a Neary was established ( R
8460) setting the stage f o r her trial testimony of Ms. Neary
CR 84691, which was similar to her earlier testimony (R 8 4 6 9 -
8575).

Ms. Neary was followed by the "kite mark" testi-

mony and witnesses Souviron, Campbell and Levine. The basic
conclusion was that within a reasonable medical certainty,
t h e teeth of TED BUNDY made the bite marks on the victim Lisa

Levy, as reproduced through photography techniques CR 8649-

9001). No state witness testified to or used actual tissue
samples f a r comparison analysis.
The state shortly thereafter rested its case.
Motion for judgment of acquittal was made and dmied (R 9 0 2 3 ) .
Defense counsel announced ready for trial with exhibits (R
9024). The defense began with another rift between counsel
and the Defendant (R 9 0 3 6 ) . It became obvious the defense
was not ready as a motion was made to recpen the case for the

37
defense after resting ( R 96241, The defense had evidence
from blow-ups of the Defendant taken when he was arrested in
Pensacola which showed no chip on one of the teeth, a crit-
ical p o i n t of comparison {R 9 9 7 8 - 9 9 8 4 ) . The Defendant and
another witness testified that the chip in the tooth wasmade
in jail in Pensacola after the crimes were committed (R 9590).
The trial judge found the defense had adequate time to de-
velope the photo (R 9 8 3 0 1 , and related testimony, and if the
evidence had been timely prepared and presented, the court
would have admitted it ( R 999Q). The failure to procure the
evidence was attributed to counsel (R 9 9 9 8 ) .
At this point, the record reflects one court ap-
pointed counsel seeking to withdraw (R 9 2 8 7 ) without prior
notice to the Defendant (R 9293). Another motion to m e n t a l l y
examine the Defendant ( R 9283) was made. As noted by BUNDY
he had "no responsibility f o r , but [bore] complete c o n s w c e s
for .. .I' the acts and/or omissions of counsel, ( R 9038).
Attorney Bob Haggard was excused from the case ( R 9 2 9 4 ) .
The defense tactic was primarily an attack on the
credibility or strength of the state's case. ME.. Nancy Dowdy

was recalled as to Nita Neary's initial description. Doctor

John Mitchell and Dr. Duane D e V o r e testified relative to the
strength or weakness of the bite mark identification ( R 9Q61-

92171. O f f i c e r s Wayne H i c k s , George Brand and Benjamin

58
Masterson were called relative to state's witnesses' earlier
inconsistent accounts CR 9 2 1 7 - 9 2 6 5 ) . Ronnie Eng was called
for physical identification demonstration purposes ( R 9329).

T h e N i t a Neary tapes of her hypnosis session and telephone

conversations with law enforcement were introduced ( R 9 3 4 8 -
9372). Witnesses testified TED BUNDY was an 0 type secreter
( R 9415-9440); which closed the evidence at trial.
6. Jury Instructions - Charge Conference
Defendant requested through counsel special in-
structions on bite mark ( R 1526-1527) and hair analysis (R
1521) which were denied ( R 9523). Defense counsel requested
an alternative j u r y instruction to the new standard on ream-
able doubt ( R 1532-1533) which was denied ( R 9472). Defense
counsel a l s o requested an alternative instruction to the
standard (R 1.522) as ta the Defendant not testifying, Fla.Std.
Jury Instr. (Crim.) 2.13(h), arguing that the langyage in the
standard "failure to testify" amounted to a comment on the
Defendant exercising his right to remain silent(R 9476). The
standard jury instruction was given ( R 9 7 4 9 ) and reflected
the standard language that "a defendant's f a i l u r e to take the
witness stand must not be considered in any manner as an ad-
mission of guilt, n o r should his f a i Z u r e to take t h e witness
stand influence your v e r d i c t in any manner whatsoever." (R

9749). T i m e l y objection to the jury instruction on "flight"

was a l s o lodged ( R 9512, 9 5 1 5 ) .
 7. Closins Arsument
Argument of counsel proceeded with the state lay-
ing emphasis on flight from the t a g incident (R 96452,resist-
ing arrest ( R 9647) and fleeing in Pmsacola ( R 9647). De-
fense c l o s i n g was a general argument to the sufficiency.
The verdicts were, guilty to all counts ( R 1586-
1591; SR 590).

8. Post-Guilt Phase
The defense moved for the imposition of life
sentences ( R 1605-1606) on the basis of the aborted p l e a a-
greement. The defense theory was that the Defendant by not
pleading guilty and insisting on a trial by jury was being
punished for the exercise of h i s constitutional right to a
trial by j u r y . The motion was denied (R 9805).

Defendant also filed a motion f o r statement of

Particulars (R 1603-1604) and specially requested a j u r y in-
struction on "heinousness" (R 1608-16211 which were denied
( R 9816).

9. Penaltv Phase
The defense stipulated ta the existence of an
aggravating circumstance on violence (R 9868) a s an essential
element of the prior kidnapping conviction in Utah ( R 9867).
It was also stipulated that the Defendant was under sentence
( R 9863) and had not been pardoned or paroled at the time of
the Tallahassee assaults ( R 9878).

40
 The mitigating issues were actually stimulated
in part by the court, particularly the issue of mental im-
pairment (R 9977). The judge found reduction of mental fac-
u l t i e s ( R 10,024) as a mitigating factor.

The trial court further found the capital fel-

onies to have been committed while the Defendant was engaged
in the crime of burglary ( R lO,lOl), and that the c a p i t a l
crimes were especially heinous, atrocious or cruel, and f a l -
lowed the jury advisory sentence of death ( R 1626-16271, and
in written f o r m ( R 1629) memoralized the findings.
The Motion for New Trial preserves the pertinent
issues (R 1650-1658) including the post-trial denial of motion
f o r Judgment of Acquittal ( R 10,128).
The instant appeal ensued on timely notice (R 1665).

41
 A.

THE TRIAL COURT ERRONEOUSLY APPLIED NON-

APPLICABLE STANDARDS TO DEFENDANT'S RE-
QUESTED CLOSURE OF CIiRTAIN PRETRIAL (BIT&
MARK) EVIDENTIAL HEARINGS, AND THEREFORE
ERRED IN DENYING DEFENLIANT'S MOTION RE-
QUESTING THAT RELIEF AND PREJUDICING
DEFENDANT'S HIGHT TO A FAIR TRIAL

The instant issue is not " p r i o r restraint," but

"public access." OcaLa S t a r banner c o r p . V. S t r u g z s , 388

So.Zd 1367 (Fla. 5th DCA l v 8 0 j . In that context a derenaant's

rignt to a fair trial may compete with the PuDlic's right to

inrormation. Miami HeraZd Pub. Co. v . C h a p p e L l , 4 0 3 so.Zd
Fla.
1 3 4 3 (Ad UCA 1 9 8 1 ) . Citing, S t a t e e x r a l . Mzam-i H e r a l d Pub.
Co. v . Mclntosh, 340 So.Zd 9U4 (Pla. 1 9 7 7 ) .

It is the duty of the trial judge to protect a

defendant from inherently prejudicial publicity which will

saturate the community, s h e p p a r d v * M a x w e ~ Z , 3 8 4 U.S. 333,3b3;

8 6 S.Ct. 1507, 1 5 2 2 (1966). The venue change in the instant

case was not sufficient to protect the defendant's rights.
Fla.
Miami H e r a l d Pub. Co. v . L e w i s , 3 8 3 So.2d 236 (Pth DCA lY801,
at 24U. Rather tnan the implicit constitutional right of the
public to a t t e n d criminal trials, R i c h m o n d lvewspapers, I n c . v .
V z r g z n i a , 100 S.Ct. 2814 ( 1 9 8 U ) , the concern is with the
particularly acute danger of publicity concerning pretrial
suppression issues. G a n n e z t Co. Inc. 2). Depasquaze, 4 3 3 U , S .

3b8, 9 9 S.Ct. 2898, 2 9 0 s ; 61 L.h'd.Zd 608 ( 1 9 7 9 ) .

The G a n n e t t court noted tne precise problem con-

fronting Appellant, the erfects of pretrial disclosure on the

412
tairness of: the t r i a l .
"Ciosure of pretrial proceedings is
often one of the most effective meth-
ods that a trial judge can employ to
attempt to insure that the fairness
of a trial will not be jeopardized by
the dissemination of such information
throughout the community before the
trial itself has even begun. Cf.
Hideau v . Louisiana, 3 7 3 u,S, 723, 83
S.Ct. 1417, l o L.lsd.zd 663." Gannett
s u p r a , 99 S.Ct. 290s.
Wnile Richmond f l e w s p a p e r s recognizes a constitutional
right ok the public to attend criminal trials, Gannett
expressly rejects tne concept of a constitutional right in
strangers to attend a pretrial proceedings, Gannett, s u p r a ,
9 9 s.Ct. 2Yl1,

[ I J f the examination must necessarily.

be public, the conseqnence may be that
the testimony upon the merely prelimi-
nary examination will be spread betore
the community, and a state of opinion
created, which, in cases of great
public interest, will render it d i f f i -
cult to obtain an unprejudiced jury,
The interests of justice require that
the case of the defendant should not
be prejudiced, if it can be avoided;
and no one can justly complain, that
until he is put upon nis t r i a l , the
dangers of this prejudgment are obvi-
ated.".. Commissioners of Practice and
Pleadings, Code of Criminal Procedure,
Final Rep. S202 ( 1 8 5 0 ) . G a r n e t t , supra,
9 9 SaCt. 2911.

M i a m i HeraZd Pub, Co. v . L e w < s , 3 8 3 So.2d 23b (Fia.

4th DCA 198u), at 238, addressed the same issues and reached
the same conclusion. The Fourth District recited a three
pronged analysis on the sealing of a suppression hearing:

43
 1. is necessary to prevent a serious and
imminent threat to the administration
of justice.
2. Can be established that no less restric-
tive alternative measures are available.
3, Will in fact achieve the Court's pose,
In finding the danger in Gannett was effectiveiy avoided in
L e u i s , the district court found the admissibility of the evi-

dence vitiated the potential hazard of unreasonably exposing

jurors to inculpatory information. in caveat the court Stated,
Mzarni Herald. Pub. Co. v . L e w i s , s u p r a , 3 8 3 So.2d 240:

We do not foreclose the possibility

that there will be cases of such noto-
riety that a change of venue wili not
suffice, Thus our conclusion here is
expressly limited to the circumstances
of this case.
It is submitted the THEwDORE RuBEKT BUNDY case is
Of such notoriety.
"when the conduct restrained involves tne
exercise of a constitutionally protected
r i g h t or treedom, as of speech, press, or
religion, then a difrerent test may rea-
sonably be applied or a more stringent ne-
cessity required before such restrasnt or
uncontrol is warranted. But it does not
follow that a court is governed by the
same rules In restricting a c c e s s to its
own proceedings (or penalizing a direct
violation of such restrictions) as in re-
straining or penalizing independent con-
duct ot t h i r d parties. Tne safeguard a-
gainst an abusive judicial "censorship"
of its proceedings by such means is tne
same as that which controls all juaicial
action in this direction: the require-
ment that such measures must appear to
be necessary to a tair trial." Brumf'ieLd
v. S t a t e , 108 So.2d 3 3 (Fla. 1938) at 3 6 .

44
 It is a generally recognized rule that criminal
trial judge may exclude all or any portion ot the public from
a trial, depending upon the necessities of tne situation, in
order to prevent disorders and distrubances of any nature which
coulcl intertere with the orderly course of the proceedings. It,
is not error to retuse to news gathering forces the right to
obtain or release the name of a rape prosecutrix, or to keep
certain portions of judicial records confidential. The purpose
of such restrictions is not confined to prevention of physical
distrubance, f o r the power to limit public information or
exciuce spectators includes the power to limit the vicarious
audience by prohibiting photography. BrumfzeZd, s u p r a , 108
S0.2d at 36.

NO Florida Supreme Court case holds that the "clear

and present danger" rule governs a court's power to restrict,

upon occasion, the pubiic character of judicial proceedings or
to regulate ar pSace certain limitations on public a c c e s s to
persons in custody. "The requirement has been simply that
such limitations must appear to be reasonably required f o r
the orderly administration of j u s t i c e . " BrurnfieZd, supraJ
108 So.zd at 3 7 . The duty or the court in tnis respect is
n o t contined to preserving o r d e r or decorum in tne courtroom
itself, but relates to t h e entire process f r o m the inception,
in tne case of criminal proceedings, of ofticLal custody
of the accused.
"It is generally conceded that under

45
 certain circumstances the public and press
alike might be denied permission to inter-
view or otherwise make personal contact
with a prisoner awaiting trial. [R 1271
Certainly he might be brought to the court-
room, f o r arraignment, by a route other than
the public corridor if physical facilities
were available. [ R 53311 If constitutional
inhibitions do not prevent that procedure,
can they operate to pxevent a court's accom-
plishing the same end by injunctive order if
circumstances dictate such precautions? We
think not," BrumfieZd, s u p r a , 1-8 So.2d at
37.
The primary issue at this point is preserved by De-
fendant's Motion f o r In Camera hearing on Motion In L i m i n e
on the admissibility of the bite mark evidence ( R 686-690,

2467). The Court utilized the "clear and present danger"

test (R 2 5 1 8 ) and the three pronged analysis. The hearing
on the b i t e mark was open to the public ( R 2810) over protes-
t a t i o n s of the defendant (R 2748). Defendant further moved
to continue the hearing until after the selection of the jury
(R 2749) which was ultimately denied (R 2994) as the court
found no "clear and present danger." The standard by the
court is to restrictive and by applying the incorrect standard,
error was committed.
In access cases the three pronged analysis of "clear
and present danger" is not applicable. Sentine2 S t a r Co. v .
E d w a r d s , 3 8 7 So.2d 3 6 7 (Fla. 5th DCA 1980)Icited for that pro-

position in M i a m i HeraZd Pub. Co. v . C h a p p e Z Z , 403 So.2d 1342

(Fla. 3d DCA 1981) at 13451, The coirect test is under t h e
inherent powers of the court.
 ksy virtue of its inherent power to control the

conduct of its own proceedings, there is little doubt that

under certain circumstances the courts may excluue the pub-
lic and the press from its proceedings, but such authority
must be cautiously exercised. S t a c e ex re^. Gore Newspapers
Company v , T y s o n , 313 So.2d / 7 7 (Fla. 4th D c A 1975). Gener-
ally, in criminal cases the sealing of court records or pro-
ceedings is done with a view toward protecting the rights of
the defendant to a tair trial. News-Press P U P Co. Inc. 0.

S t a t e , 345 So.2d 8 6 5 (Fla. 2a DCA 1977).

Judicial powers possessed by a trial court are
classified either as inherent powers, stemming from its exist-
ence as a court, or as powers WniCh depend upon constitution-
al or statutory authorization for their exercise. avery
court has the inherent power to do all things that are reason-
ably necessary for the administration of justice witnin the
scope of its jurisdiction, subject to valid existing laws and
constitutional provisions, These powers, however, must be
invoked in the exercise of sound judicial discretion. hiurn<
HeraLd Pub. Co. v. CoZZaxo, 329 So.2d 3 3 3 (Fla. 3 4 DCA 1976).
Rather than "clear and present danger" the test is
simply that limitations are "reasonably required for tne or-
derly administration of justice." BrumfzeZa, s u p r a , l U 8 So.

26 37. The duty ot the c o u r t relates to the entire criminal

justice process from its inception with official custody of
the accused. Just as no constitutional imperative prohibits

_*

47
alternate or private routes to and from tne courtroom (H 50'/-
510) no constitutional proscription prohibits a court from

accomplishing the same e m by injunctive orders, particularLy

in an "access" case. BrumfzeZa, s u p r a , 108 So.2d 37. Tra-
ditionally access m criminal cases is based upon fundamental
government interests and protection of other rights which
override the concerns of the public. U.S. v . Gurney, 5 3 8

F.2d 120.2 (5th Cir. 197/) .

in determining the restrictions to be placed
upon access to judicial proceedings, the court must balance
the rights and interests ok the parties to the litigation
with those ot the puDlic and press. S t a t e ex r e . Gore f l e w s -

p a p e r Co. v. T'ysson, 313 So.Ld 717 (Fla. 4th DCA 19"/5).

In a criminal proceeding, it is not the province

of the c o u r t to control publicity as such, but only to con-
trol publicity Such as will deny a aefendant his right to a
fair trial. Therefore, if denial of access is proper, there
must be some selectivity. UcaLa S t a r 8 a n n e r Corp. v . Sturgis,
3 8 8 So.2~ 1 3 b 7 (Pla. 5tn DCA 1980).

The record is preserved as to requested closure

and requested continuance. Cf. Smz-bh v. S-Late, 3 7 6 So.2d 455

(Fla. 1st DCA 1979). But to show prejudice in a specific

case something more than general j u r o r awareness is required,
C h a n d l e r v . FZorCda, lu1 S.Ct. 802 (1981) at 813, citing
Murphy v. Florida, 4 ~ U.S.
1 '194, 800; 95 S.Ct. 2031, 1036;

4 4 L.Ed.2d 589 ( 1 9 7 5 ) . Accord, State v. G r e e n , 395 So.2d

48
532 (Fla, 1981); KCng v . S t a c e , 390 So.Ld 3 1 5 ( F l a , 1980);

CZark v . S t a t e , 3 7 9 So.2d 372 (Pla. 1st DCA 1979).

Prejudice may be presumed in circumstances where the

trial atmosphere has been corrupted by press coverage. Irwin

v . Dowd, 366 U.S. /17, 81 S,Ct. 1639, 6 L.Ed.2d f 5 1 t19b1);

R i d e a u v . Louzsiana, 373 U.S. 723, 8 3 Sect. 1417, 10 L.Ed.2d

663 ( 1 9 b 3 ) ; Escss v . T e x a s , 381 U.S. 5 3 2 , 85 S.Ct. 1628, 14
L.Ed.2d 543 ( l Y 6 5 ) ; S h e p p a P d v . MaxwelL, 384 U.S. 333, 86

S.Ct. 1507, 16 L.Ed.2d 600 (1966). B u t t h e Record before the

Court reflects f o u r or the actual. jurors, including one

alternate, were more tnan aware ot the bite mark evidence issue
( R 4109, 4522, 5477, 5b04). Irwin v . UOWd, s u p r a , 331 U.S.
1 2 6 - 7 2 ' 1 , 81 S,ct. 1645. The statements of jurors that they
would not be influenced by the news accounts is not dispositive.
S h e p p a r d v . MaxweLZ, s u p r a , 384 u.S. 351, 86 S.Ct. 151b.

A c c o r d , l'rwz-n v . oowd, 366 u.S. 71'7, 81 S.Ct. 1639, 6 L.Ed.2d

"/51 (19611. I t was the t r i a l judge's responsibility to protect

the accused trom innerently prejudicial publicity. The bite

mark evidence can only be construed as positive identification,
conclusive guilt. The preliminary reports were tnat the bite
marks were inflicted by the accused. (K 8 - 1 2 ) . Knowledge of
such evidence through news channels could only leave the Jury
panel witn guilt-prone tendencies. The most prejudicial bite
mark accounts were ted to the public by the star witness ?or
p r i o r to hearing; S h e p p a r d v . MaxweZZ, s u p r a , however substan-

tial publicity regarding the b i t e mark analysis attended the

49
hearing ( R 1 U 4 6 , 1317, 1320, 1321).
The jurors who were familiar with the b i t e mark
analysis were more infected than the juror facing a simple eye-
witness identitication. The bite mark identification has the
infallability of the neutral detached uninterested expert wit-
ness. The eyewitness is usually in an emotionally stressed
situation, often t h e victim, therefore interested. Everyone
in ordinary l i f e hds second guessed themselves by blowing their
horn at a friend, who turned out to be a s t r a n g e r . Eyewitness-
es therefore lack the cloak of infallibility perceived by lay
persons as shrouding the expert.
It is submitted that the bite mark publicity imper-
missibly reached the trial jury, and violated the defendant's
right to a fair trial.

50
 B.
THE FAILURE OF THE COURT TO CONTROL THE
PERVASIVE PREJUDICIAL PUBLICITY DENIED
DEFENDANT HIS CONSTITUTIONAL RIGHT TO BE
TRIED IN THE COUNTY WHERE THE OFFENSE WAS
COMMITTED, Art I, S16, Fla,Const. (1968)

Since 1885, the Florida Constitution has guaran-eed

to persons accused of a crime "a speedy and public trial
by impartial jury in the county where the crime was committed."
Art. I, $16, Fla.Const. (1968); 511, Declaration of Rights,
Fla,Const. (1885). That guaranty is a legacy of the jurors'
seventeenth century role, as witnesses to the disputed facts.
1 Holdsworth, History of English Law 156 (1908). Pluckett,
T.F.T.; A Concise H i s t o r y of t h e C o m m o n Law, 5th ed, (Little,
Brown & Co., Boston, MA. 1956), pp. 127-128.

Parliament's enactment of laws authorizing trial

for treason in any county in England, which British authori-
ties threatened to employ against recalcitrant colonbstsj,
"was one of the grievances which led to separation of the
American colonies from the British empire," SzJart ZI. KimbaZZ,
4 3 Mich. 4 4 3 , 449, 5 N.W. 635, 6 3 8 (1880). Explicit guaran-
ties of trial by a jury of the county or vicinage were there-
fore written into original constitutions of Maryland, Massa-
chusetts, New Hampshire, Virginia, Pennslyvania and Georgia,
Murphy v . Supreme C o u r t , ~ 9 1
4i.Y. 440, 455, 6 3 N.E.2d 49,55,

161 A.L.R. 9 3 7 , 946 (1945). The local constituency of the

jury was thought to be so fundamental that it was held to be
implied in the right of jury trial itself. Swart 21. KimbaZ.2,

51
s u p r a , at 637.
The Florida Supreme Court's first interpretatiorl
of the guarantee of the 1885 Constitution was entirely con-
sistent with the deep concern displayed by the colonists,
Heu<tt v . S t a t e , 4 3 Pla, 194, 3 0 SO. 795 (Fla. 1901). In
H e w i t t , the trial judge exhausted a venire of 125 p e r s o n s
without obtaining a qualified jury, The Court in O ' B e r r y v .
State, 47 Fla. 75, 3 6 So. 4 4 0 (1904) reversed a trial court
determination that it was impracticable to obtain a quali-
fie; j u y in Osceola County. Defendant U ' B e r r y had al-
legedly committed cattle theft. Because his quilt or inno-
cence had been widely debated during his candidacy for the
legislature and had been the subject of public comment and
litigation in a replevin action concerning the cattie, w ' -
berry's trial f o r larceny of another animal had been gene-
rally discussed. All those facts, the Supreme Court held,
did not demonstrate that a qualified jury could not be ob-
tained frum tile more than 6 0 0 citizens of Osceola County who
were eligible for jury duty:
Ji' i
"The fact that it miqht have been difficult or I- 0
would have colisumed considerable time to have t r ' \
procured a qualified jury to have tried the + I
defendant is not sufficient to warrant a change , 1. ( I

of venue, against the c o n s e n t of defendant." \,(''L[ ,'?

O r B e r r y v . S t a t e , s u p r a J 4 7 Fla. 86, 36 S O . 443;
(4
see also Ward v " State, 3 2 8 So.2d 260 (Fla. 1st
DCA 1976).
In A s h Z e y v . s t a k e , 7 2 Fla. 1 3 7 , 7 2 So. 647 i 1 9 j - 6 ) t

the Court again reversed a trial court's order transferring

52
a cause on grounds of the impracticability of obtaining a
qualified jury and held:
ll. ..the matter should be tested in some
way so as to make it clearly appear that it
is practically impossible to obtain an im-
partial jury to try the accused in that coun-
ty. " A s h Z e y , s u p r a , 72 Fla. 140-141; 7 2 So.
648. See also H<gginbotharn v . S t a t e , 88 Fla.
26, 101 So. 233 (Fla. 1924).

The means by which the impossibility of securing

an impartial jury is to be determined, is implied from the
very word "impossible," which here means "practically im-
possible" or "impossible as a practical matter." The term
does not mean absolutely impossible, as would be implied by
examining every resident of the county for jury service, only
to find that s i x impartial persons cannot be found: but nei-
ther does the term "impossible" simply mean difficult, pro-
blematic, inconvenient, laborious, or frustrating. What is
required is a showing that a jury cannot be secured by an
exhaustive or perserving judicial effort. The way for the
trial judge to determine that possibility or impossibility
is to summon a venire, swear them, join with counsel in
asking them questions bearing on their qualifications, and
excuse both the impartial jurors and the evasive ones by exe-
cising that skill of judgment which Justice Alderman des-
cribed in Manning v . State, 378 So.2d 274, 279 (Fla. 1979)

(dissenting opinion) . B e c k w i t h v . S t a t e , 386 So.2d 836 (Fla.

1st DCA 1980), p e e . f o r r e v . d e n . 392 So.2d 1379.
Strong as the evidence was of the difficulty of the

53
task, the impossibility of obtaining an impartial jury was
n o t demonstrated by an exhaustive effort to select such a
jury from among the citizens of Leon County. The court exa-
mined only 5 veniremen in open c o u r t , who were excused f o r

cause suggesting partiality.

It is somewhat incongruous that a defendant argue
a change of venue prejudiced his rights, But a defendant
has not a constitutional right to a change of vcnuz, rather

a tair trial by impartial jury in the county where the crime,

was committed. f l o r t h v. S t a t e , 6 5 So.2d 77 (Fla. 19521,
aff'd 341 U.S. 932. ward V. State, 3 2 8 So.2d 280 (Fla.
1st DCA 1976). Again the Court is confronted with the im-
pacting of First Amendment rights with Sixth Amendment rights.
Twenty-six per cent ( 2 6 % ) of the pretrial proceedings to-
talling one thousand five hundred thirty-three (1533) pages
of the record on appeal are devoted to pretrial publicity
alone. News reports "Bundy's Teeth Match Bite on Girls'
Body Expert S a y s (R 3 3 3 ) , "Bundy provides Dental samples"
(R 1042), "Experts Argue Bite Mark Merits" (R 1046), "Expert

casts Doubt on Bite Mark Evidence" (R 1317), Bitemark Evi-

dence Ruling Postponed (R 1320), Bundy Challenges Evidence
from Bitemark Comparisons (R 1321), together with more than
one hundred seventy-one (171) l o c a l pretrial news accounts
( R 1069-1070), [not counting the final month] dictated a

change of venue. BUNDY was literally driven out of town,

54
not by a disruptive citizenry, but an uncontrolled media.
At some point the public curiosity, as opposed to the pualic's
right to know, must be reconciled against the right of the
defendant and the overriding interest in administration of
justice. The media in the BUNDY case controlled the docket,
not the trial judge. The media changed the venue, n o t the
defendant. The expense has prompted new bills in the l e g i s -
lature, but cannot amend or revise the prejudice to Defen-
dant. The defense was sever&ly prejudiced by the distance
between the trial and critical bitemark photographs and wit-
nesses ( R 9590, 9830, 9990) which were not timely produced
(R 9 5 9 0 ) and which would have been admitted if timely pre-
sented ( R 9990-9998). The prejudice is real and actual,
and the case should be reversed for a new trial in Leon
County.

55
 C.
THE USE OF HYPNOTICALLY REFRESHED EYE-
WITNESS TESTIMONY VIOLATED DEFENDANT'S
R I G H T T O A CONSTITUTIONALLY FAIR TRIAL

On 23 January 1978, police hypnotist Dr. Julian

Arroyo and Leon County Sheriff Ken Katsaris conducted a hyp-
notic session with state's witness Nita Neary. (R 6435).
During that session Ms. Neary provided several details that
h e r previous interviews with police officers did not reveal.

Particularly, she described eyebrows and the h a i r color of

the man she saw at the Chi Omega house on the night of the
crimes. ( R 6033-6034, 6452-6455). The characteristics of
hypnosis in general and of Ms. Neary's hypnotic session in
particular render her hypnotically refreshed testimony so
unreliable and tainted with suggestion as to be inadmissible
to establish the identity of the assailant.
The only Florida case involving a witness's hyp-
notically refreshed testimony, C l a r k v . S t a t e , 379 So.2d 372
(Fla. 1st DCA 1979), takes a very uncritical view of the

dangers inherent in the technique. The majority regarded

hypnosis as merely an unconventional form of the "past rec-
ollection refreshed'' exception to the hearsay rule, relegating
to the issue of weight, rather than admissibility, the ques-
tion of whether the hypnosis procedure used in the case was
reliable, C l a r k v . State, s u p r a , 379 So.2d at 375. The view
has found acceptance in several states, B a r d i n g v . S t a t e , 246
A.2d 302 (C. Spec. App., Md. 1968); State u . J o r g e n s o n , 492

56
P.2d 312 (Oreg. 1st Ct.App. 1971); S t a t e u . McQueen, 244

S.E.2d 414 (N.C. 1978) and in the 9th Cir,, WyZZer v . F a i r -

c h i l d Hiller C o r p . , 5 0 3 F.2d 506 (9th Cir. 1974); KZine v .

F o r d M o t o r Co., 5 2 3 F.2d 1067 (9th Cir. 1975); U.S. v.

A d a m s , 5 8 1 F . 2 d 193 (9th Cir. 1978); U.S. v . A u k a r d , 597 F.
2d 667 (9th Cir. 1979). It is of note, however, that of these

case decisions only H a r d i n g v . Maryland, 2 4 6 A.2d at 311-312,

discussed the reZiabiZity of hypnosis as a means of refresh-
ing a witness' memory. "Science has not recognized the pos-
sibility that memory of painful events can sometime be se-
stored by hypnosis." It cautions however, that "some auth-
orities warn that fancy can be mingled with fact in these
cases.'.' H a r d i n g v . MaryZand, supra, 246 A.2d 311-312.
The C Z a r k decision did not discuss the threshold
Fla .
issue, raised in C o p p o Z i n o v. State, 223 So.2d 68 a d Dca 19681,
t h a t scientific evidence must be recognized and accepted in

the scientific conmunity before it is admissible in court.

See also; F r y e u . U.S., 2 9 3 F.1013 (D.C.Cir. 1924); Kcrrninski

21. State, 6 3 So.2d 3 3 9 (Fla. 1953). Roariguex v . State,337

So.2d 903 (Fla. 3d DCA 1976), cited CoppoZino to justify the

exclusion of defendant's hypnotically i n d u c e d statement from

evidence Rodriguez held hypnotically induced statements inad-
missible because of their unreliability. The C Z a r k decision
involved hypnotically "refreshed," as opposed to hypnotically
'"induced"testimony.

57
I
 Crawford v. State, 329 So.2d 554 (Fla. 4th DCA

1975) involved a police officer testifying before a jurythat

a witness had taken a polygraph examination. In reversing

the lower court's decision, the Second District Court of

Appeals held that "neither the result of a polygraph exam-
ination nor any allusion t o such a n examination to i n f e r a
certain r Q s u 2 t is admissible." (emphasis supplied). Craw-
ford v. State, s u p r a , 321 So.2d at 561. The C r a w f o r d court
thus recognized the inherent prejudicial impact that mere
mention of an ostensibly scientific procedure in connection
with testimony can have on the trier of fact's estimation of
that testimony.
The courts which have discussed its character and
function, have held hypnosis and its fruit inadmissible for
purposes of identification in criminal trials when the hyp-
nosis procedure itself is unduly suggestive. PeopZe v.
S m r e k a r , 385 N.E.2d 8218 (111.App. 1929). See a l s o , U.S. v ,

A d a m s , 581 F.2d 193 at 198 (9th Cir. 1978); M e r r i f i e l d v.

State, 400 N.E.2d 146 (Ind. 1980); State v. Mack, 292 N.W.
2d 764 (Minn. 1980); Commonwealth o f Pennsylvania v. Yazaroviteh,
436 A.2d 170 (Penn. 1981); State ZI. Hurd, 432 A.2d 86 (N.J.
1981); State v . Menu, 6 2 4 P.2d 1274 (Aria. 1981). The in-
creased l e g a l awareness of the limitations of hypnotically
refreshed testimony is based on several factors.

58
 1.

Central to the unreliability of hypnotically re-

freshed testimony is the phenomenon of confabulation. The
term "confabulation" denotes the tendency of a hypnotized
person to fill gaps in memory with fantasies and suggestions
implanted by the hypnotist, creating memory where there was
none. C o m m o n w e a Z t h v. Nazaxovitch, s u p r a , 436 A.2d 1 7 0 at

174; State v. Hurd, supra, 432 A.2d 8 6 at 92; State V.

Mack, supra, 2 9 2 N.W.2d 7 6 4 at 769; Neil J. Dilloff 8 3 ;

"The admissibility of Hypnotically Influenced Testimony," 4
Ohio N.E. L.Rev. 1 at 4-5 (1977); Kevin L. Pelanda "The Pro-
bative Value of Testimony from Hypnotically Refreshed Recol-
lection" 14 Akron L.Rev. 609 at 619 (1981). Several charac-
teristics of thd hypnotic state explain this phenomenon.
Hypnosis severly diminishes the subject's critical faculties
and increases his or her tolerance for persistent reality
distribution. State v . Hurd, S u p p a , 432 A.2d at 90-93. At
the same time, hypnosis instills in the subject a desire to
conform to the hypnotist's expectations. Pelanda, s u p r a , at
620. Robert S. S p e c t o r and Terle E. Foster, "Admissibility

of Hypnotic Statements; is the Law of Evidence Susceptible."

3 8 Ohio State L.J. 5 6 7 at 5 7 8 , 591-2 ( 1 9 7 7 ) ; S t a t e zl. H u r d ,

supra, 4 3 2 A.2d at 93; Commonwealth v . Naxarovitch, s u p r a ,

436 S.2d at 174; S t a t e v . Mena, s u p r a , 624 P.2d at 1277;

S t a t e v . Mack, s u p r a , 2 9 2 N.W.2d at 7 7 0 . As a result, the

59
subject will alter or fabricate memories in a subconscious
attempt to respond to the hypnotist's requests f o r specific
information, which stems from the tendency of hypnotic sub-
jects to take instruction literally. Spector and Foster,
s u p r a , at 572.
Bernard I;. Diamond, Professor of Law at University of
California, Berkeley, and Clinical Professor of Psychiatry
at University of California, San Francisco, provides a vivid
illustration of the subject's literal response. Hypnotic
subjects were instructed to imagine themselves ten years in
the future and asked to describe their surroundings. The
s u b j e c t s related what they imagined they saw in minute de-

tail even though they had never actually experienced these

perceptions, Bernard L. Diamond "Inherent Problems on the
U s e of Pretrial Hypnosis on Prospective Witness,: 68 Ca1.L.
Rev. 313 at 3 3 7 - 8 (1980). The obvious danger of fantasy and
fact intermingling thus casts serious doubt on the reliabil-
ity of hypnotically refreshed testimony.
In the case at bar, the danger is significantly
enhanced by the circumstances of Nita Neary's hypnosis. As
has been discussed, the hypnotic subject is both extremely
suggestive and desirous to conform to the hypnotists' ex-
pectations, which increased the probability that the subject,
in her eagerness to fulfill the role expected of her, sub-
consciously created details where none were remembered.

60
Judges and legal scholars have emphasized the need for neu-
trality in the hypnotic setting and have proposed procedural
guidelines which would help assure it. State ZI. Hurd, supra,

432 A.2d at 96-97; S t a t e v . Mack, s u p r a , 292 N.W.2d at 770;

Pelanda, s u p r a , at 623, 627, 628; DilQff, s u p r a , at 8;
Spector and Foster, s u p r a , at592. Unfortunately, Dr. Arroyo
failed to follow a number of these guidelines.
The holding of t h e hypnotic session in the state
attorney's office compromised the neutrality of the procedure.
Many authorities have h e l d location of hypnosis to be one
factor in determining whether the methods used were unduly
suggestive. S t a t e v . Mack, supz7a, 292 N.W.2d at 770; Pelanda
s u p r a , at 627; Spector and F o s t e r , s u p y a , at 594. The pres-
ence of law enforcement personnel has also been held preju-
dicial to the procurement of reliable results f m a lhypnotic
session. S t a t e v , Hurd, suppa, 432 A.2d a t 96-97; State v.
Mack, s u p r a , 292 N.W.2d at 772; Pelanda, s u p r a , at623, 627.
Nevertheless, Leon County Sheriff Ken Katsaris was in t h e
room with Dr. Arroyo during Ms. Neary's hypnosis session ( R

9351). Finally, judges and legal experts who have proposed

procedural safeguards f o r hypnosis sessions suggest that the
hypnotist himself be, independent and unbiased. During hyp-
nosis, Dr. Arroyo introduced himself to Ms. Neary as "Special
Deputy Sheriff, Hillsborough County" ( R 6448). Id. Dilloff,
s u p r a , at 8. The concern over the hypnotist's affiliation

61
stems not only from the cues, conscious or unconscious, which
the hypnotist may give the subject, but also from the tendency
of the subject to adopt a role and carry on the sophisticated
psychological activities associated with that role. Diamond,
s u p r a , at 316. In the instant case, the character of the ses-
sion cast Ms. Neary in the role of a police witness, whose
function was not to describe what she remembered, but to fash-
i o n a description of the suspect. ( S e e , ( R 6469-70). The tes-
timony of Dr. Kuypers regarding the hypnotic session illustrates
the point. Dr. Arroyo made a number of inappropriate sugges-
tions that he, not she, was in command of her actions ( R 6444-
6445, 6447, 6450, 6463, 6469-6470, 6485). He used a postural
sway test to implant the suggestion that he could make her
perform an act no matter how hard she resisted. With the es-
tablishment of this master-servant relationship within the
hypnotic setting ( R 64441, Dr. Arroyo then contradicted Ms.
Neary's own assertion that she was confused ( R 6460-61). He
commanded her to produce an image of eyebrows, telling her to
"never mind what [you] remember" (R 6462). He further de-
clared that Ms. Neary would "make a good composite" and that
she would never forget "the fact she was commanded to remember"
(R 6469-70). Given the hypnotic subject's desire to please
the hypnotist and conform to his expectations, Dr. Arroyo's
repeated suggestions that Ms. Neary produce a desired response
exacerbated the risk that she would experience positive hallu-

62
cination in an effort to perform as expected. S t a t e u , Mack,

s u p r a , 242 N,W.2d at 768; Dilloff, s u p r a , at 8 ; Spector and

F o s t e r , s u p r a , at 592. D r , l Arroyo repeatedly made clear sug-
gestions that Ms. Neary describe hair, when there is evidence
to indicate that Ms. Neary never actually saw any (R 6469-70),
eyebrows, shoes, and facial features. (R 6454, 6460, 6462,
6463, 6492).

The combined effect of Dr. Arroyo's suggestions,

the inherently suggestive hypnotic s e t t i n g and the heightened
suggestibility of the hypnotized subject caused such confabu-
lation and positive hallucination (R 6489, 6491) that the re-
sults of her testimony are so unreliable ( R 6 5 0 4 , 65061 as to
be inadmissible. S e e S t a t e v . Hurd, s u p r a , 4 3 2 A.2d at 73:

Diamond, s u p r a , at 340.
2.

To this environment of uncertainty, the hypnotic

process adds the element of prejudice. The witness came out
of the hypnotic session unshakably convinced of the sponta-
neity and reliability of her "memory" and totally unaware of
the distortion or confabulation which took place during her
hypnotic session. C o m m o n w e a Z t h v . Nazarovitch, s u p r a , 436 A.
2d at 174-176; Pelanda, SUPPU, at 621; Diamond, supzla, at
336; Dilloff, s u p r a , at 4; Spector and Foster, supra, at

585. The subject's inability to dintinguish fact from fantasy

worked with her desire to conform to percieved expectations
and to rationalize hypnotic suggestion. S t a t e v . Hurd, supra,

63
432 A . 2 d at 97; S t a t e v . Menu, s u p r a , 624 P.2d at 1277;
S t a t e v . Mack, s u p r a , 292 N.W.2d at 769; Pelanda, s u p r a ,
at 6 2 0 ; Diamond, s u p r a , at 314, 333-5, 337-8; Spector and
Foster, s u p r a , at 572, 577. The act of verbalization during
hypnosis cemented the perception in the subject's mind, even
more firmly entrenching her conviction in the truth of her
story. Spector and Foster, s u p r a , at 592. U.S. v . Wade,
3 8 8 W.S. 218 (1967), held this factor to be inimical to the
defendant"s interest in a fair trial.

"It is a matter of common experience tnat,

once a witness has picked out the accused
at a lineup he is n o t likely to go back on
his word later on. So that in practice the
issue of identity may .
. . for all practi-
cal purposes be determined there and then,
before trial." U . S . v . Wade, s u p r a , 3 8 8
U . S . at 229.

3.

J u r o r s accord undue weight to hypnotically refreshed

testimony. Jurors judge the credibility of a witness by
their demeanor. Jurors see the witness' hypnotically re-
freshed testimoriy uttered with absolute conviction without
realizing that the certainty sprang not f r o m actual percep-
tion but from the hypnotic process. S t a t e v . Menu, s u p r a ,

6 2 4 P.2d at 1278-9; CornmonueaZth v . N a z a r o v i t c h , s u p r a , 4 3 6

A.2d at 176; S t a t e v . Hurd, s u p r a , 4 3 2 A.2d at 9 4 ; State 2).

Mack, s u p r a , 292 N.W.2d at 769; Diamond, s u p r a , at 339-40;

Dilloff, s u p r a , at 9 ; Spector and Foster, s u p r a , at 593.

64
Jurors also accord special truth telling powers to the hyp-
notic process. Pelanda, s u p m , at 630; Spector and Foster,
s u p r a . at 4594-5. The crucial issue does not involve the
witness, but the jury's faith in a "scientific" procedure.
The distinction made in C l a r k v. State, s u p r a ,
3 7 9 So.2d 3 7 2 at 375, between hypnotically induced and hyp-

notically enhanced testimony is not viable. S e e , State II.

Mack, s u p r a , 292 N.W.2d at 771; see a l s o , Crawford v . S t a t e ,
s u p r a , 321 So.2d 559 at 561. The Eighth Circuit addressed
the issue of the popularly held perception of scientific om-
niscience in U.S. v. AZexander, 526 F.2d 161 (8th Cir. 1970).
Scientific evidence is likely to be shrouded by jurors with
an aura of near infallibility, akin to the ancient oracle of
Delphi.
I'. , . present day jurors, despite their
sophistication and increased educational
capacities, are still likely to give sig-
nifi c a n t , if not conclusive weight [to
scientific evidence] . I ' U.S. v . Alexander,
s u p r a , 526 F.2d at 168.
U.S. v. Brown, 557 F.2d 541 ( 6 t h C i r . 1977), addressed another
facet of the same problem. "Because of its apparent object-
ivity an opinion that claims a scientific basis is apt to
carry an undue weight with the trier of fact." U.S. v . Brown,
s u p r a , 557 F.2d at 556.
The hypnosis of N i t a Neary created a situation rife
with the danger of unreliability and prejudice. Hypnosis im-
bued the subject with absolute faith in the truth of her

65
"recollections." Ms. Neary's hypnosis effectively prevented
the jury from evaluating her credibility on the basis of de-
meanor, since, after hypnosis, no w a y existed to determine
whether her certainty was genuine OK merely the fruit ofpost-
hypnotic suggestion, as hypnotic subjects subconsciously ra-
tionalize explanations to fabricate a factual basis for sug-
gestions implanted during hypnosis. Ms. Neary's hypnosis
session foreclosed any legitimate opportunity the jury might
have had to judge the trial reliability of her testimonysince
after hypnosis, no determinative evaluation could be made of
whether the consistency of her testimony r e s u l t e d from accu-
rate perception or from hypnotically induced confabulation.
Finally, by testifying that her testimony had been refreshed
by hypnosis, N i t a Neary linked her testimony to themysterious
scientific process commonly (but mistakenly) held to have
truth compelling powers, By rendering unassertainable so
many of the traditional indicia of veracity, the use of hyp-
notically refreshed testimony effectively preempted the jury
from performing its role as trier of fact. S e e U.S. u. B m m ,

supra, 557 F.2d at 556.

A growing body of case law supports the exclusion

of hypnotically refreshed testimony. The defendant's counsel

moved to exclude Nita Neary's testimony on grounds of hypnot-
ic taint (R 673-675), and the only expert qualified to testi-
fy concerning the reliability of her testimony expressed un-

66
reserved doubts as to its veracity relating an almost ency-
clopedic account of the improper suggestiveness of the whole
session, (R 6426-6508). Even if hypnosis was p e r se reliable
and admissible, the specific abuses cited by Dr. Kuypers'
testimony would warrant exclusion of Ms. Neary's testimony.
The CZark decision emphasized that the hypnotist was alone
with the subject. With Ms. Neary, the high sheriff was
present, and in fact participated (R 6442). The C Z ark court
made a p o i n t of the hypnotist's representation to the wit-
ness that he had no knowledge of the case. No such repre-
sentation was made by Dr. Arroyo, indeed Sheriff Katsaris'
presence and the fact that "Special Deputy" Dr. Arroyo inter-
viewed several other witnesses ( R 6435) indicated that the
hypnotist had extensive knowledge of the case, which gave
rise to a heightened risk of suggestiveness in the hypnotic
session. The nature of the hypnotic process and the sugges-
tiveness of Dr. Arroyo's interview with Ms. Neary rendered
her testimony completely unreliable and thus of no probative
force. The gross prejudice resulting from her admission to
the jury of being hypnotized makes it clear that her testi-
mony s h o u l d have been excluded at trial, and making a new
trial justified.

67
 1

D.
THE IN-COURT IDENTIFICATION BY NITA NEARY
WAS THE FRUIT OF IMPROPER IDENTIFICATION
PROCEDURES AND WAS INADMISSIBLE AS A MATTER
OF LAW WHICH DENIED DEFENDANT A FAIR T R I A L .
The standard regarding the admissibility of iden-
tification testimony has focused on the reliability of the
identification procedure used by the police. Manson u .
Brathwaite, 432 U.S. 98 at 114 (1977). Of chief concern is

the desire to avoid the substantial likelihood of misidenti-

fication. G r a n t v . State, 390 So.2d 341 at 3 4 3 (Fla. 1980);

N e i l v . B i g g e r s , 409 U.S. 188 (1972) at 198; Simmons v . U.S.

390 U.S. 377 (1968) at 384. When misidentification occurs,
the witness retains the false image rather: than that of the
person actually seen, thus making the e r r o r irremedial.
Simmons 21. U.S., s u p r a , 3 9 0 U.S. 384. The suggestiveness of
an identification is weighed against the probability of a
high degree of accuracy. Manson v . Brathwaite, s u p r a , 432
U.S. 110. A two-pranged t e s t has developed. The c o u r t must
(1) determine whether the identification procedure used was

unnecessarily suggestive. If the court so finds, t h e n it

must (2) determine, considering the totality of the circum-
stances, whether the suggestive procedure gives rise to a
substantial likelihood of irreparable misidentification,
N e i Z v . Biggers, supra, 409 U.S. 199; K i r b y v . Illinois,

406 U.S. 682 at 692 (19721. The IVeiZ court listed five
f a c t o r s to be considered in deciding the issue of likelihood

68
 ~

of misidentification:
1. The opportunity of t h e witness to view the
criminal at the time of t h e crime"
2. The witnessR degree of attention.
3. The witness' prior description of the criminal.
4. The level of certainty demonstrated by the wit-
ness at the confrontation.
5. The length of time between the crime and the
confrontation. UeiZ z1. Biggers, s u p r a , 409 U.S. 199-200.

The evaluation of suggestiveness of an identifica-

tion procedure must be made with a view toward the totality
of the circumstances, considering each case on its own facts.
Simmons v . U.S., 390 U . S . at 3 8 4 ; StovaZZ D. Denno, 3 8 8 U.S.
302 (1967). Making the determination necessitates discus-
sion of the circumstances under which witness N i t a Neary i-
dentified TED BUNDY as the man she allegedly saw leaving the
Chi Omega house on the n i g h t of the crimes.
W i t h i n ten days of the incident Ms. Neary was hyp-
notized in the State Attorney's office by a police hypnotist.
The hypnosis session was so suggestive and unreliable as to
cast serious doubt on the probative value of her subsequent
testimony. Ms. Neary's opportunity to view BUNDY at his
T a l l a h a s s e e trial (R 6050) heightened the probability that his
visage would be associated with the man she allegedly saw on
15 J a n q 1978. It is beyond dispute that the in-court show-

69
 ~

up organized by the trial j u d s e ( R 6 0 5 L ) , tainted by the pre-

vious in-court show-up at the October trial, made more sug-
gestive by location at the counsel table (R 6053), was unduly,
unreasonably and unconstitutionally, suggestive.
A more egregious incident of the prosecution's un-
necessarily suggestive ID procedure was the photo array which
occurred in Muncie, Indiana on 7 April 1978. Captain Poitinges
admitted knowledge of Ms. Neary's limited opportunity to view
the assailant, BUNDY had been in custody for nearlytmmths
before any kind of identification procedure took place (R 6013).
During this time Ms. Neary has seen a number of pictures of
BUNDY in the media (R 6132, 6407), some of them with his head
slightly turned to the side (R 5 9 4 9 - 5 0 ) . The suggestion was
created when the pictures shown Ms. Neary at the array were
profile shots ( R 5 9 4 6 ) . In addition, Captain Poitinger dis-
cussed with Ms. Neary the existence of the prime suspect ( R
5 9 4 9 ) and soon thereafter asked, as he displayed the photo-

graphs "If there's one there that resembles * h a t suspec'tplease

let me know" (R 5 9 5 0 ) [emphasis added].
The chief evil to be avoided in pretrial identifi-
cation procedures is the substantial risk of misidentifica-
tion. Neil 0. B i g g e r s , s u p r a , 409 U.S. 7-98; Simmons v .

U.S., s u p r a , 390 U . S . 353-384. In M a n s o n v . Brathwaite,

s u p r a , 432 U.S. 111, Justice Blackmun discussed the problems

of unreliability posed by identification procedures. In citing

70
 I

with approval, U.S. ex reZ. K i r b y v . S t u r g i s , 510 F.2d 397

(7th Cir. 19751, the court noted that less reliable identi-
fication procedures and their fruits should be excluded "un-
less the prosecution can justify his failure to use a more
reliable procedure." Kirby, s u p r a , 510 F.2d 4 0 5 . Captain
Poitinger made the photo array unnecessarily suggestive by
making inappropriate references to the 'lsuspect,"by waiting
almost two months until he instituted any kind of identifi-
cation procedure, and by covering part of BUNDY'S photo and
suggesting that Ms. Neary imagine a toboggan cap on it ( R
5951).
The only excuse offered by the agent for failure
to use the more reliable lineup procedure in a case of such
magnitude was "administrative convenience" and the "avoidance
of procedural delay" ( R 6009). Captain Poitingex's concerns
do not reflect the urgency that has excused such less reliable
identification procedures in case law history, e . g . , S t o v a 2 2
v. Denno, (dying witness); s ; v. u.s.,
~ ~ ~ identi-
(prompt ~ ~
fication required to capture a fugitive suspect); Neil v .

Biggers, (difficulty locating others of matching suspects

description); M a n s o n v . Brathwaite, (undercover police of-
ficer trained in techniques of observation, thus offering ex-
traordinary guarantees of reliability),
Even unnecessarily suggestive identification pro-
cedures may pass constitutional muster if certain standards

71
 I

of reliability are met. WeCZ v . Biggers, s u p r a , 409 U.S. at

199.. The first two factors to be considered are (1) the wit-
ness' opportunity to view the suspect and (2) d q r e of atten-
tion. The decisions upholding these factors involve situa-
tions in which the witness was also the victim of crime ob-
served. N e i l v . Biggers, s u p r a , 409 U.S. 198; J u d d v . State,

402 So.2d 1279 (Fla. 4th DCA 1981); Grant v . S t a t e , s u p r a ,

390 So.2d 341 (Fla. 1980); S t u t a v . BrCtton, 387 So.2d 556

(Fla. 2d DCA 1980); State v . F i s c h e r , 3 8 7 So.2d 4 7 3 (Fla.

5th D.C.fi.19801; Smith v. S t a t e , 362 So.2d 417 (Fla. 1st DCA

1978); Baxter v h S t a t e , 355 So.2d 1234 (Fla. 2d DCA 1978).

Each of these cases except J u d d was a rape case in which the

victim had a clear opportunity to view the assailant and in
which a high degree of attention was assured. As the United
States Supreme Court noted in Neil, s u p r a , 4 0 9 U.S. 200, the
witness "was no casual observer, but rather the victimof one
of the most personally humiliating of all crimes." These
guarantees of reliability do not inhere in Ms. Neary's testi-
mony, who caught but a brief glimpse of a man leaving the Chi
Omega house (R 6034). Her view was not even of a complete pro-
file, but an oblique profile. (R 6082). A court could not
expect of her a high degree of attention nor an accurate per-
ception of the events of 15 January 1978. She did not sus-
pect any f o u l play until sometime after the man leftthe buss.
(R 6076). She was coming down with a cold (R 6 0 6 7 ) " and

72
stayed for seven (7) hours ata fraternity party at which she
was drinking alcohol (R 6025, 6060). Ms. Neary's entire t e s -
timony is based on a brief, obscured glimpse of a person whom
she believed to be a man, made when s h e was tired, sick and
had consumed alcohol. On the basis of these factors, there

was no reason to accord threshold reliability to her observa-

tions.
The Court must also consider the accuracy of h e r
description. The inconsistencies in Ms. Neary's statements
call this into question. P r i o r to the hypnosis session, Ms.

Neary described the assailant as a light complected man about

5'8" in height. (R 6274). At trial, however, she described
a dark complexioned man about 5'10" or 5'11". Whether either
one of these descriptions happens to be an accurate descrip-
tion of the defendant is irrelevant. At issue on appeal is
the accuracy of the witness' recall. Any witness can enhance
the probability that they will accurately describe a suspect
by submitting several different descriptions. Such a " s h o t -
gun approach" t o suspect identification does not assist (and
in fact works against) the determination of Ms. Neary's re-
liability. Any correlation that might exist in one of the
two descriptions does not support a finding of the reliabil-
ity of her testimony.
In BUNDY'S case, the issue of the witness' level of
certainty cannot be considered independently of the length of

73
 I

time that elapsed between initial viewing of the alleged as-

sailant and confrontation. A t trial, Ms. Neary was ''certain"

of her identification of BUNDY ( R 6056). Her resolute cer-

tainty did not exist, however, at the initial view of the al-
l e g e d assailant, when she thought that the man at the doorwas

Ronnie Ens, the sorority houseboy. ( R 6035). The events of

the subsequent two months did much to alter her sense of cer-
tainty. A lapse of two months between a witness of the event
and identification may not ordinarily arouse the court's sus-
picion. S ee lVeiZ v. B f g g e r s , s u p w J 409 U.S. 188 (lapse of

seven months). However, two months was sufficient time to sub-

ject Ms. Neary's memory to distortion by hypnosis. The air-
waves and newspapers were filled with pictures of BUNDY and
sensational accounts of the crimes for which he was suspected,
some of which Ms. Neary had knowledge before the photo array
(R 6132, 6Q47). Her view of BUNDY at the October trial in
Tallahassee (R 6050) insured what was already a foregone con-
clusion. The history of the BUNDY identification contains
incident upon incident each of which created the unreasonable
r i s k of the evil addressed in B a x t e r 71. S t a t e , s u p r a , 355 So.

2d 1234 (Fla. 2d DCA 1978), at 1238, that "the witness has

lost or abandoned his o r her mental image of the offender: and
has adopted the identity suggested".
The due process clause of the Fifth and Fourteenth
Amendments forbids an identification procedure which is so

74
 I

unnecessarily suggestive that it creates the substatial like-

lihood of irreparably mistaken identification. Mansmi v . Brath-
w a i t e , supra, 432 U . S . 113; Moore v . Illinois, 4 3 4 U . S . 218
(19771, at 218; Neil v . Biggers, s u p r a , 409 U.S. 198; K i r b y
v. Illinois, s u p r a , 406 U.S. 691; Smith v. S t a t e , s u p r a , 362
So.2d 420; Baxter v . State, s u p r a , 355 So.2d 1237. Because

of the absence of any indicia of reliability, the unnecessary

suggestiveness of the identification procedures used in BUNDY'S
case violate h i s Fifth and Fourteenth Amendment right to a
fair trial. Since BUNDY'S conviction rests upon unduly sug-
gestive identification evidence, the judgment should be re-
versed., or in the alterna>tivethe evidence suppressed (strick-
en).
E.
COUNTS 1 THROUGH V AND COUNTS VI AND VII
m R E IMPROPERLY JOINED AND REFUSAL TO
GRANT DEFENDANT'S M O T I O N TO S E V E R COUNTS
I THROUGH V FROM COUNTS VI AND VII RE-
SULTED IN A DENIAL OF DEFENDANT'S RIGHT
TO FAIR TRIAL GUARANTEED BY ART. I S16,
FLORIDA CONSTITUTION AND UNITED STATES
CONSTITUTION, AMENDMENT VI AND XIV.

1. Joinaer
It is a fundamental principle of law in Florida
that separate and distinct crimes cannot be tried together.
Houckins v. State, 175 So.2d 82 (Fla. 1944). In case, H a l l
U. Statg, 66 So.2d 863 (Fla. 1953) this Court held t h a t two
cases of larceny of cattle were p r o p e r l y joined and gave as
criteria the facts that the crimes occurred on t h e same day,

75
 I

at nearly the same time, in the same vicinity. The cattle

were transported in the same vehicle: the same witnesses
were to testify in both crimes, and the same issues and e v i -
dence were to be used in both cases. HaZZ, supra, 66 So.2d
864. The crimes blended together so as to form a series of
related events or transactions, neither separate nor distinct,
and w e r e properly joined at trial. In the more recent case
of RuffCn zl. State, 397 So.2d 277 (Fla. 1981), this Court a-

gain found that a series of events were so similar and r e l a t d

as to be properly combined at trial. In Ruffin, the victim
was abducted and later killed with a handgun. The defendant
appropriated the victim's car and proceeded back into t h e t a m
intending to rob a convenience store. Aborting the planned
robbery, the defendant tried to leave but encountered a law
enforcement officer outside the store. The defendant shot
and killed the officer with the same gun that he had used to
kill the first victim and then drove away in the first vic-
tim's car. The court reasoned the facts were a chain of e-
vents within an ongoing transaction, and that the crimes were
similar and related. Although the case was a test of "WiZZims'
rule" evidence, WiZZiams zl. State,110 So.2d 6 5 4 (Fla. 19591,

the analogy should not be last to Appellant's case. The

Supreme Court held that the evidence was admissible because

it was relevant, it was relevant because of factualshilwity

overlapping. Ruffin, s u p r a , 397 So.2d 2 7 9 .

76
 In the instant prosecution, not o n l y were the bases
for Counts I through V separate and distinct from Counts VI
and VII, but evidence from Counts I through V would have been
irrelevant and inadmissible, under WiZZiams, in a separate
trial on these counts. The crimes were factually distinct
and separate, and should have been severed under Rule 3.152
(a)(l), F1a.R.Crim.P..
A comparison of the " C h i Omega" and "Dunwoody"
crimes yields only the following similarities according to the
prosecutor: (1) the victims in each instance were young white
women ( R 7 0 6 0 ) ; ( 2 ) each victim was battered with some object

(R 7061); ( 3 ) the crimes occurred on 15 January 1978 (R 7060)

and; (4) all were asleep in bed (R 7061). There are distinct
differences in several areas of cornparison between the two epi-
sodew. The C h i Omega situs was a large sorority house, while
the Dunwoody residence was a duplex housing only one person to

a unit. The Dunwoody residence was "two miles" ( R 7360) from

the Chi Omega sorority house. The two episodes were hours a-
part (Chi Omega at approximately 2: 30 A.M. [ R 60651 and Dun-

woody at approximately 4 : O O A . M . [R 73291 e t s e q . ) . Cf. U.S.

v . Shearer, 606 F.2d 819 (8th Cir. 1979); U.S. v. Rabbitt,
583 F.2d 1014 (8th Cir. 1978); U.S. v. Jines, 536 F.2d 1255

(8th Cir. 1976), and "bite marks" only at Chi Omega.

The cause of death of two of the victims at the Chi

Omega sorority house was strangulation; there was no evidence

77
of strangulation at Dunwoody; at the Chi Omega house a s u s -
p e c t was s e e n with a possible weapon in hand, while at Dun-

woody no suspect was seen and no weapon ever found; at Dun-

woody some signs of forced entry were found, while no sure
point of entry was ever determined at the Chi Omega house.
The only major connection between these two events
was the allegation that the Appellant was the perpetrator.
The case law applicable holds that there must be more in com-
mon between the events than a few similarities, and the mere
allegation that Appellant committed both a c t s . BradZey v .

State, 3 7 8 So.2d 870, 8 7 2 (Fla. 2d DCA 1 9 7 9 ) ; Paul v . S t a t e ,

365 So.2d 1063, 1065-1066 (Fla. 1st DCA 1979); and see, D a v i s
u . State, 3 7 6 So.2d 1198, 1199 (Fla. 2d DCA 1979), where

WiZZiams rule evidence is discussed.

In B r a d l e y v. S t a t e , s u p r a , 3 7 8 So.2d 970, three
burglaries were committed in the same neighborhood within two
weeks. Entry was made in the same manner, and similar "fabric
mark" evidence was found in e a c h case yet the court held the
crimes not similar enough to be admitted as WrSZZiams rule evi-
dence. B r a d Z e y v. S t a t e , s u p r a , 872. If evidence of a crime
is not sufficiently similar under WiZZiams to be admissible in
a trial on another charge, then the crime is not properly join-
ed with t h e collateral crime in a single trial. The assertion

creates a test f o r joinder. At the low end of this t e s t scale

would be the WiZZiams rule evidence: minimally s i m i l a r , but

78
used to establish identity, common p l a n , e t c . ; WiZZiams rule
evid nce would be admissible as a collateral crime in a single
trial. Highest on the scale would be those crimes that are
sufficiently similar and related to warrant joinder in that
the crimes are almost identical; exactly the same place or
point in time, or continuously executed in the same transac-
tion. At a median point would be those crimes that are not
identical, but so similar or related that they could be charged
together and tried together. Appellant asserts, that not only
did the state fail to meet this median test f o r joinder, but
that at separare trials the two episodes would have been in-
admissible as a collateral matter under WiZZiams. Failure to
meet the minimum standard l e a d s to the conclusion that the
charges were improperly joined, and the defendant's Motion
to Sever (R 429, 1442-1443) should have been granted.
2. Severance
In U.S. v. F o u t z , 540 F.2d 7 3 3 (4th C i r . 1 9 7 6 ) ,
[MackZin u . S t a t e , 3 9 5 So.2d 1219 (Fla. 3 DCA 1981) and U.S. ZI.

Dennis, 625 F.2d 7 8 2 , 8 0 2 (8th Cir. 1980)], prejudice is neces-

sarily created a s a result of the jury hearing evidence of two
separate and distinct crimes. US. v. Bu-Lz, supra, 540 F.2d 736.
The court stated that two crimes may be joined under Rule 8 ,

Fed.R.Crim.P., if they are: (1) of the same or similar char-

acter; (2) based on the same transaction; or ( 3 ) based on
two or more acts or transactions connected together or consti-

79
tuting parts of a common scheme or plan. U.S. z). Foutz, supra,
5 4 0 F.2d 736. In the Foutz prosecution, as in the BUNDY pros-
ecution, the two crimes were joined together because of alleged
similarity. U.S. ZI. Foutz, s u p r a , 5 4 0 F.2d 736 (R 7059). The
F o u t z court held that a severance under Rule 14, Fed.R.Crim.P., is
justified when prejudice arises. U.S. Q. Foutz, s u p r a , 540 F.
2d 736. The prejudice from joinder may take any af threeforms:
(1) the jury may confuse and cumulate the evidence, and convict
the defendant of one or both crimes when it would not convict
him of either if it could keep the evidence properlysegrqated;
(2) the defendant may be confounded in presenting defenses as
where he desires to assert his privilege against self-incrim-
ination with respect to one crime but not the other; or ( 3 )
the j u r y may conclude that the defendant is guilty of o n e c r h
and then find him guilty of the other because of his criminal
disposition. U.S. v. F o u t z , s u p r a , 540 F.2d 7 3 6 .
In the BUNDY prosecution, the preponderance of the
evidence went to proving the Chi Omega crimes. The joinder of
the Chi Omega and the Dunwoody crimes served only toconvenience
the State and created the three types of prejudice present in
the F o u t z case. F o u t z held that the jury will necessarily con-
sider one crime while considering the defendant's guilt or in-
nocence of another. U.S. v . Foutz, s u p r a , 540 F.2d 7 3 6 . Dreu

v. U.S., 331 F.2d 8 5 , 89-90 (D.C. Cir. 1964). Admissibility

80
of other crimes, (WiZZiams rule) is strictly limited. The
evidence cannot be used to show defendant's criminal dispo-
sition. U.S. v. Foutz, s u p r a , 540 F.2d 736. The probative
value must outweigh the certain prejudice that evidence of
o t h e r crimes carries with it. U.S, z'. Foutz, s u p r a , 540 F.
2d 7 3 6 . In Florida, and in the federal courts, the t e s t is
whether the evidence of one crime is admissible at trial for
another crime. If it is not admissible, then the defendant
would be prejudiced by a joinder of the two crimes. U.S. v .
Foutz, s u p r a , 540 F.2d 736; U.S. z', WiZZairnson, 482 F.2d
508, 511 (5th Cir. 1973); WiZZiams zr. state, supra, 110 SO.

2d 654 (Fla. 1959).

If the WiZtiarns standard is applied to the facts

and evidence of the BUNDY prosecution, the Chi Omega evidence
would not be admitted in a trial for the Dunwoody crimes and
vice-versa. Foutz states further, that when crimes are joined
only because they are "similar." admissibility at separate
trials is l e s s likely than if they are part of a cornon "plan,
scheme, or purpose.I' U.S. 71. Foutx, supra, 540 F.2d 737. The
BUNDY prosecutor alleged only facts that would showsimilarity
between the C h i Omega crimes and the Dunwoody crimes. (R 7060).

Thus, even if the crimes were similar, they were severally in-
admissible in a separate trial under the WiZZiams rule. Ac-
cording to F o u t x if the evidence of two crimes is not admis-
sible in a separate trial f o r the other, the joinder of t h e

81
two creates prejudice to the defendant resulting in a mis-
joinder under R u l e 8 , Fed.R.Crim.P., U. S . v. Foutz, supra,
540 F.2d 737.

The court has ruled in U.S. z1, G r a c i , 5 0 4 F.2d 411,

413 (3d Cir. 1974) that misjoinder is not harmless error.
The court in the B U N D Y prosecution should have
granted defendant's Motion to Sever because the joinder of
the Dunwoody episodes and the Chi Omega episodes resulted in
prejudice to the defendant and seriously impaired his right
to a free and impartial determination of guilt or innocence
on each charge.
In AshZey v. State, 265 So.2d 6 8 5 (Fla. 19721, the
court refused to grant a motion for consolidation in a case
factually similar to the instant case. AshZey involved two

episodes, one of four murders and another of one murder.

Ashley ZI. State, s u p r a , 2 6 5 So.2d 6 8 7 . The first episodein-
volved four killings: one immediately after another; at the
same location; during the same transaction; and all were
based upon the same evidence. The second episode involved
one murder: an hour earlier than the other four; factually
distinguishable from the f o u r subsequent murders; at a dif-
ferent location; and it was based upon separate evidence.
The c o u r t held that since the single murder was committed an
hour earlier and in a different location, they were not prop-
erly joined because they were not part of the same trmsactian.

82
AshZey V. State, s u p r a , 265 So.2d 6 8 9 .
An application of the A s h Z e y criteria to the BUNDY
prosecution yields a similar result. The murders and batter-
ies at the Chi Omega s o r o r i t y house were in close proximity
in time and space while the single battery at the Dunwoody
residence was two miles ( R 7360) and at least an hour later
in time. Under the A s h Z e y criteria, the severance should
have been granted because the two episodes were not the sub-
ject far proper joinder under Rule 2.150, F1a.R.Crim.P.
In Rubin ZI. State, 4 0 7 So.2d 961 (Fla. 4th DCA 1982)

nine sexual b a t t e r i e s , a11 factually similar, b u t ocurring

over a period of weeks, could not be j o i n e d because they were
separate and distinct. I n contrast, Moore u . State, 259 So.
2d (Fla. 3d DCA 1972), held that joinder was proper because

of strong linking evidence between two crimes. The Moore

facts showed: (1) that eyewitnesses identified two b l a c k
males [the defendants] riding in a white car; (2) a man with
a gun robbed or attempted to rob the victims; ( 3 ) all the

robberies ocurred on the same night within fifteen minutes.

Moore v. S t a t e , s u p r a , 259 So.2d 180. In the BUNDY prosecu-
tion, there was an absence of strong linking evidence; no
common eyewitness, no cornon weapon, and a p e r i o d of time much
greater than that of the Moore case. The facts in BUNDY do
not rise to the level of Moore and do not meet the minimum
standard for joint trial.

83
 I

The f a c t s i n t h e BUNDY prosecution should have led

the trial c o u r t to infer separate and d i s t i n c t episodes calling

for severance i n order to preserve appellant's Constitutional
r i g h t to a f a i r and impartial t r i a l . U.S. Const., Amend. V,

as applied to the State of F l o r i d a through U.S. Const. Amend.

XIV; and Art. I S9, Fla. Const.

a4
 F.
THE JURY SELECTION PROCESS V I O -
LATED THE WITHERSPOOY DOCTRINE

Witherspoon v. IlZinois, 391 U.S. 510 (1968), 88

S.Ct, 1710, 2 0 L.Ed.2d 6 , established that a defendant's

right under the Sixth and Fourteenth Amendments to a'jury

which represents a true cross-section of society forbids the
automatic exclusion of veniremen who have strong moral or
ethical objections to capital punishment, A prospective
j u r o r may be excluded from service only when he or she is
"irrevocably committed, before the trial has begun to vote
against the penalty of death regardless of the facts and cir-
cumstances that might emerge in the course of the proceed-
ings. " W i t h e r s p o o n v . I l l i n o i s , 391 U . S . 5110, 5 2 2 n.21.
The Supreme Court, by way of delineation, specified that a
t r i a l c o u r t may honor a challenge f o r cause in such cases

only when the veniremen make unmistakably clear (1) that

they would mtomtically vote against the imposition of capi-
tal punishment without regard to any evidence that might be
developed at the trial of the case before them, or ( 2 ) that
their attitude toward t h e death penalty would prevent them
from making an impartial decision as to the defendant's
guilt.
The subsequent cases BouZden v . HoZrnan, 3 9 4 U.S.
4 7 8 (1969) and MaxweZZ v. B i s h o p , 398 U , S . 2 6 2 (1970), 9 0 S.Ct,

1578, 26 L.Ed.2d 6 4 6 molded the Wi-bherspoon rule, invalidating

85
excusals based on fixed opinions or conscientious scruples
against imposing the death penalty. The W i t h e r s p o o n doc-
trine was further buttressed by the decision Davis v.
G e o r g i a , 429 U . S . 1 2 2 9 7 S,Ct. 3 9 9 , 5 0 L.Ed.2d 3 3 9 (1976).

In a p e r c u r < a m opinion, the Court held that the exclusion

of a single venireman in violation of the W i t h e r s p o o n rule
would suffice to defeat a death sentence, without regard to
whether the defense had unused peremptory challenges. In
L o c k e t t v r Oh<o, 4 3 8 U . S . 595 ( 1 9 7 8 ) 9 8 S.Ct. 2954, 57 L.Ed.
2d 973, the Court applied the W < t h e r s p o o n standard to deny
habeas corpus relief. The L o c k e t t decision, however, noted
that the veniremen had admitted to the trial judge that their
conviction against capital punishment was so strong that they
were unable to take an oath to follow the law, knowing that
it might result in the imposition of the death penalty.
Read together, the cases indicate that a single ex-
cusal of a venireman for less than a full two pronged dis-
position constitutes grounds for reversal from a jury-imposed
death sentence. Two such improper excusals occurred in
BUNDY'S case, both involving violation of the second prong
of the W i t h e r s p o o n case.
The first instance occured during the voir dire
of potential juror Westbrook ( R 4264-4274). According to
Witherspoon:

86
 "The critical question, of course, is not
how the phrases employed in this area have
been construed by the courts and commenta-
tors. What matters is haw they might be
understood or misunderstood by prospective
jurors" W i t h e r s p o o n v . IZZCnois, suppa,
391 U.S. at 515 n.9.

On v o d r dire, Ms. Westbrook expressed reserved about the

possibility of inflicting the d e a t h penalty ( R 4 2 6 7 - 4 2 6 8 ) .
Counsel addressed the potential Witherspoon problem by h i -
tiating the following dialogue:
MR. HAGGARD: Could you put aside any problem
you might have about imposing a death judg-
ment on Mr. Bundy and simply determine the
issue as to whether he committed the crime?
MISS WESTBROOK: I really don't know.
MR. HAGGARD: You really what?
MISS WESTBROOK: At t h e time I really don't,
you know. You know, I can't explain it or
say it, but I think I could.
MR. HAGGARD: You think you could?
MISS WESTBROOK: Uh-huh.
* * * *
MR. HAGGARD: Well, if, the State fails to
prove that Ted Bundy committed the crime
beyond and to the exclusion of a--every rea-
sonable doubt, could you find him not
guilty?
MISS WESTBROOK: Yes, I could. I think so.
MR. HAGGARD: Now, I'm sure Mr. McKeever
will ask you will ask you, so I will ask
you, if he proved beyond and to the ex-
clusion of a every reasonable doubt that
he committed the crime, could you find
him guilty?

87
 MISS WESTBROOK: Yes.
(R 4269-4270)

Counsel thus established that, notwithstanding her

reticence to impose the death penalty, Ms. Westbrook could
adequately fulfill her oath as a juror. The Supreme Court
noted in Adams D. T e x a s , 100 S.Ct. 2 5 2 1 (19801, that

[Njeither nervousness emotional invol-

vement nor inability to deny or confirm
any effect whatsoever is equivalent to
an unwillingness or inability on the
part of the j u r o r s to follow the court’s
instructions and obey their oaths, re-
gardless of their feelings about the
death penalty. Adams v. T e x a s , s u p r a ,
100 S.Ct. at 2528-2529.
Unfortunately, counsel’s subsequent attempts to as-
certain that Ms. Westbrook understood thed’i’ff~~~:ncesbetween
the functions of the two stages of the jury process met with
repeated interruption (R 4 2 7 0 - 4 2 7 3 ) . The Court concluded the
v o i r dire with this question
THE COURT: ...
[Wlould you be abl&
to return a verdict of first degree
murder if the evidence warranted it
knowing that that crime has a punish-
ment, a possible punishment of death?
MISS WESTBROOK: No.

THE COURT: All right, The Court will

excuse her f o r cause. (R 4 2 7 3 - 4 2 7 4 )
By creating a strong suggestion that a sentence of
death would ensue a finding of guilt, the court held that
Ms. Westbrook could not perform her duties as juror unless
she was willing to impose the death penalty if BUNDY was

aa
found guilty. As such, the court, who had the final word,
obfuscated the issue that counsel had previously made clear,
i.e., that Ms. Westbrook could consider BUNDY'S guilt Or
innocence separately from the penalty issues.
The v o i r d i r e of venireman Constance ( R 5386-
5 3 9 5 ) presented similar problems, The potential juror

w a s having extreme difficulty distinguishing the guilt deter-

mination phase of the jury process from the penalty phase
( R 5393-5394). Again the trial judge c u t short the voir
dire with its line of question:
THE COURT: Would you be able to return a
verdict of guilty of murder in the first
degree, assuming that the evidence that
yourfd found to be credible beyond and to
the exclusion of a reasonable doubt,
brought you to that conclusion, knowing
t h a t by that f i n d i n g , y o u Mould be sub-
jecting someone t o t h e d e a t h p e n a l t y .
(emphasis added)
JUROR CONSTANCE: No sir, I don't beli-
eve so. ( R 5394-5395)

In neither instance did the Court establish that

the venireman's attitudes regarding the death penalty would
prevent them from making a fair and impartial decision as
to the defendant's guilt. The W i t h e r s p o o n court made it

clear that a state may not entrust the determination of

whether a man should live or die to a tribunal organized to
return a verdict of death." W i t h e r s p o o n v . Illinois, s u p r a ,
391 U.S. at 521. A criminal defendant is entitled to have

89
his case determined by a jury representing a cross section
of the community. If the exclusion of a single venireman
is in violation of the W<therspoon rule, the death penalty
cannot stand. Davis v. Georgia, s u p r a , 429 U.S. 123. Two
veniremen were improperly excluded in BUNDY'S case. There-
fore, under the principles Laid down in W i t h e r s p o o n and its
progeny BUNDY'S sentence should be vacated.

G.
THE COURT ERRED IN DENYING DEFENDANT'S
CHALLENGE TO THE GRAND J U R Y AS "UNTIME-
LY AND THE FAILURE TO TIMELY APPOINT
COUNSEL DENIED DEFENDANT THE RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL
1. Right to Counsel
On 18 July 1978, Assistant Public Defender Joe Nur-
sey filed a series of motions challenging the Grand Jury, to-
wit: "Motion to Inform Defendant of Grand Jury Proceedings,"
( R 705, 1079), "Motion f o r Temporary Restraining Order and

Preliminary Injunction Restraining Grand Juries from Return-

ing Indictment Against the Defendant" (R 709, 1083), "Chal-
lenge to the Grand Jury" (R 7111, 1085)- Judge Rudd denied
the motians stating that (1) the grand jury c o u l d not be
retroactively attacked, ( 2 ) the.defendant had no preindict-
ment right to counsel and ( 3 ) the public defender had no
standing to make the motions. (SR 276-277, 285-286). Judge
Rudd l a t e r reversed himself on the issue of BUNDY'S right to
public d e f e n d e r a s s i s t a n c e t o argue the motions, ( R 715) .

90
 Florida and federal law require that counsel be

appointed to an indigent person "when he is formally charged

with an offense, or as soon as feasible after custodial res-
traint or upon his first appearance before a committing ma-
gistrate whichever occurs earliest" F1a.R.Crim.P. 3.111(a).

G i d e o n v . Wainwright, 3 7 2 U . S . 335, 8 3 S.Ct. 792, 9 L.Ed.2d

799 (19631, HuckeZbury v. S t a t e , 337 So.2d 400 (Fla. 2d DCA

1976). As a matter of law BUNDY'S right to counsel was trig-

gered as soon as he w a s subject to custodial interrogation
with respect to the Chi Omega murders in Pensacola on 15 Feb-

ruary 1978. MCranda v. A r i z o n a , 3 8 4 U.S. 4 3 6 (1966).

Bscobedo v. I l l i n o i s , 3 7 8 U.S. 428 (1964). The first ques-

tion is whether BUNDY'S right to counsel ceased to exist be-
tween his custodial interrogation in Pensacola and his in-
dictment in Tallahassee.
A survey of cases involving the right to counsel
indicates a negative answer, The principle for permitting

pre-trial access to counsel stems from the due process theory

that denial of l e g a l assistance at any stage in the prosecu-
torial process when a defendane's failure to assert rights
or raise defenses would result in a permanent l o s s of those
rights and defenses constitutes a violation of law, Gerstein

v. Pugh, 4 2 0 U.S. 1 0 8 ( 1 9 7 5 ) at 103; Coleman v. Alabama, 399

U.S. 1 (1970) at 7; United S t a t e s v . Wade, 3 8 8 U . S . 218

( 1 9 6 7 ) a t 224-227; Massiah v. U n i t e d S t a t e s , 377 U . S . 201

91
(1964) at 205; Whi-be v. Maryzand, 3 7 2 U:S. 59, (1963) at 60.
HamiZ%on v . Alabama, 3 6 8 U . S . 52, (1961) at 5 2 ; MicheZ V.

Louisiana, 350 U.S. 92 (1955); R e e c e v . G e o r g i a , 350 U.S. 85

(1955). The majority of these cases, a l s o hold that the

"critical stage" of the prosecutorial process which triggers
the right to counsel occurs after the commencement of adver-
sary judicial criminal proceedings Id. See also B r e w e r V.

W i ' l Z i a m s , 430 U.S. 387, (1977): U n i t e d S t a t e s v . A s h , 413 U.

S. 3 0 0 (1973); K i r b y v. IZZinois, 406 U.S. 6 8 2 (1972).

BUNDY'S right to appointed counsel for the purpose of a grand

jury challenge depends on t w o f a c t o r s . F i r s t , did the grand

jury challenge constitute an adversary judicial criminal pro-

ceeding. Second, did BUNDY lose any rights because he did
not have counsel to timely assert them.
Both questions may clearly be answered in the af-
firmative, A grand jury proceeding is not i t s e l f an adver-
sary proceeding, but the challenge to a grand j u r y is. See
State e x r e 2 Ashman v . WiZZiams, 151 So.2d 4 3 7 (Fla. 1963).
S905.05 Fla.Stat. provides that a defendant may challenge
the grand jury only before impanelment, unless defendant did
not know or have reasonable grounds to know that his case
was being heard before the grand jury, Because he lacked
counsel, BUNDY lost his primary right to challenge the grand
jury. cf. S t a t e v. Lewis, 11 So.2d 337 (Fla. 1943). The

92
 pre-impaneled period constituted a critical stage of t h e
proceedings which required t h e presence of counsel to pre-
serve BUNDY'S right to challenge. Moore v . IlZino<s, 4 3 4
U.S. 220, a t 225 ( 1 9 7 7 ) ; Brewer 2). WiZZiams, suppa, 430 U . S .
at 398. G e r s t e < n v . P u g h , s u p r a , 4 2 0 U.S. at 123; U n i t e d
States v . A s h , 413 U.S. 3 0 2 , at 311 (1973); CoZeman v . AZa-

bama, s u p r a , 3 9 9 U.S. at 7; U n i t e d States v. wade, s u p r a ,

3 8 8 U.S. a t 224-227; Massiah v. U n i t e d States, 3 7 7 U.S. at
204-205; W h f t e v . Maryland, supra, 3 7 2 U . S . at 60; Hamilton
v . AZabama, supra, 3 6 8 U . S . at 53-54; R e e c e V. Georgia,

s u p r a , 3 5 0 U.S. at 08-89. Seay v. State, 2 0 6 So.2d 532 (Fla.

1973) .
a A logical construution of law favors the preimpa-
nelment appointment of counsel in capital cases.BUNDY'S in-
dictment charged him w i t h first degree murder, (R 1-4). Ar-
ticle I §15(a) of the Florida Constitution mandates that a
grand jury return an indictment. Florida law further .grants
the defendant the right to challenge the grand jury. SS905.
02-04 Fla.Stat. (1970). As discussed, the defendant, unless
justifiably i g n o r a n t of the proceeding, may n o t challenge
the grand jury after its impanelment. S905.05 Fla.Stat.
(1970). Finally, Florida and f e d e r a l law guarantee indigent
defendants the right to appoint counsel.
The atate argued that BUNDY'S right to counsel f o r
purposes of grand jury challenge should not accrue until he
0

93
was arrested, charged, o r indicted with the offense being
considered by the grand j u r y (SR 269-270)" This construc-
tion of law would give BUNDY the right to challenge the
grand jury, but would deny him the opportunity, through
appointed counsel, to exercise that right until it had
been waived.
Statutes s h o u l d be construed in such a way that
they operate harmoniously D i s t r i c t SchooZ. B d . of L a k e C u u n t y
V , TaZmadge, 381 So.2d 698 (Fla. 1980); Mann v . G o a d y e a r
T i r e & Rubber Co., 300 So.2d 32 (Fla. 1975) FoZey v. S t a t e

e x r e l Gordon, 50 So.2d 179 (Fla. 1951).

Statutes do not
as
operate harmoniously together where,/the state has recommend-
ed, one statute g r a n t s a legal right while another precludes
its exercise. §§27.51(1)(a) Fla.Stat. provides the public
defender shall represent persons ''under arrest for, o r is

charged with a felony .... 11 To make the statute authori-

zing grand j u r y challenges meaningful requires that counsel
be appointed f o r this purpose before the right is lost
because of impanelment.
R e e c e v . G e o p g i a , 3 5 0 U.S. 85 (1955), involved a

defendant who, like BUNDY, was prevented from challenging

the grand jury before impanelment because he was not
charged with any crime until after his indictment. Rever-
sing Reece's conviction, the court held that "the right to
object to a grant jury presupposes an opportunity to exer-
cise that right." R e e c e v . Georgia, s u p r a , 350 U.S. at 8 4 ,

94
The Court further s t a t e d that
"it is u t t e r l y unrealistic to say that
he had such an opportunity when counsel
was not provided for him until the day
after he was indicted. In P o w e Z Z v .
S t a t e of Alabama, (citation omitted)
this Court held that the assignment of
counsel in a state prosecution at such
time and under such circumstances as to
preclude the giving of effective aid in
the preparation and trial of a capital
case i s a d e n i a l of due p r o c e s s of
tau." R e e c e 0 . G e o r g i a , s u p r a , at 89-
90. (emphasis added).

Equal protection of law, as well as due process

consideration militates against the state's argument. The
state's position creates a cognizable class of persons
charged with and held in custody with regard to offenses
considered by grand j u r y and those defendants (like BUNDY)
who are h e l d in connection with charges unrelated to the
offenses being so considered, By means of a distinction
not grounded in statute the state would grant the right to
appointed counsel to the first class andwithholdit from
the latter. Adoption of this rule would enable the pro-
secution to effectively deny certain indigent defendants
their right to effective assistance of counsel, by h o l d i n g
them in custody on unrelated o f f e n s e s until the grand jury
returns an indictment. The distinction urged by the state
discriminates, without basis in law or policy, against
an entire class of defendants and violates the Equal Pro-
tection clause of the Fourteenth Amendment and should be

95
rejected.

---
2. Timeliness

Notwithstanding Judge Rudd's sudden reversal on

the issue of BUNDY'S right to pre-indictment (not pre-im-
panelment) counsel, he nonetheless denied the motions and
challenges as being untimely filed. The statute pertinent
to timeliness of a grand jury challenge exempts from its
application those "who did n o t know o r have reasonable
ground to believe, at the time the grand jury was empaneled
and sworn, that cases in which he was or might be involved
would be investigated by the grand jury." S905.05 Flagstat.

(1970). No notice of the subject of the grand jury investi-

gation was served on BUNDY. The Florida Supreme Court, in
S t a t e v. J e w i s , 11 So.2d 3 3 7 (Fla. 1943) addressed the
issue whether defendants failure to challenge grand jury
proceedings as a waiver of their right,
"It is hardly consistent with the spirit of
fair trial to assume that a capital offense
will be lodged against them and then re-
quire them to challenge the competency of
the grand jury before it is drawn. They
would in other words be required to de-
fend against a probability that may never
become a reality." S t a t e v . L e w - i s , s u p r a ,
11 So.2d at 3 3 9 .

Since BUNDY did not have notice (nor was counsel

appointed) that the grand jury would consider the offenses
of which he was suspected, requiring him to challenge the

96
grand jury before he was the certain subject of its in-
vestigation violates BUNDY'S right to a fair trial and ig-
nores the exception set forth in F.S. S905.05. As such
the trial court erred in denying defendants motions.

3. Notice
If as Judge Rudd held, the d e f e n d a n t was on notice
on the date of the bitemark search and seizure, 26 April
1978, that he would be the object of a grand jury investi-
gation yet to be empaneled, BUNDY had a right to c o u n s e l at
that point. If the appointment of counsel on related charges
carried over to the homicide investigation, counsel did not
timely perfect the rights of the accused and was ineffective
under the Sixth and Fourteenth Amendments. Either (1) the
defendant was denied the sight to timely appointment of
counsel, or (2) the defendant had d e f a c t o counsel who was
ineffective, or (3) the court erred in denying the challenges
as untimely.

97
 H.
THE TRIAL COURT ERRED IN ADMITTING THE
BITEMARK IDENTIFICATION OPINION TESTIMONY

1.
I__t
Admissibility ueZ non

While neither "conceding" nor "admitting" the ad-

missibility of bitemark identification testimony, it is with-
out dispute the weight of legal authority weighs toward ad-
missibility of bitemark identification testimony. The fol-
lowing is a series of l e g a l citations where "bitemark"
has been admitted into evidence. The BUNDY case is one of
first impression in F l o r i d a .

The first bitemark case appeared in legal litera-

ture over one hundred years ago [Skrzeckas (1874) Superarbi-
trium, betr. der Verlezung Zweir Finger usw., V j s c h r .
G e r i c h t Z . Med. Band 2 1 1 ; Cameron, J.M.# and Sims, B.J,r
"Bite-marks," F o r e n s i c D e n t i s t r y (Churchill-Livingstone,
London, 1974). However seventeen centuries ago the Kama
Sutra of Vatsyayana recited some of the more striking classi-
fications of bitemarks on human skin. Burton, R. and Arbuth-
not, F.F., The K a m a Sutra of Vatsyayana, Translation (Allen
and Unwin, London, 1963). Cameron and Sims, s u p r a , at 132.
The standard announced in F r y e v . United S t a t e s ,
293F 1013 (D,C. Cir. 1 9 2 3 ) has been recognized in Florida.

CoppoZino v . S t a t e , 2 2 3 So.2d 68 (Fla. 2d DCA 1968) citing

98
Xarrliski v. S t a t e , 6 3 So.2d 3 3 9 (Fla. 1953).

"Just when a scientific principle or

discovery crosses the line between the
experimental and demonstrable stages
is difficult to define. Somewhere in
this twilight zone the evidential
force of the principle must be recoy-
nized, and while courts will go a
long way in admitting expert testi-
mony deduced from a well-recognized
scientific principle or discovery,
the thing from which the deduction
is made must be sufficiently estab-
lished to have gained general ac-
ceptance in the particular field in
which it belongs," F r y e V , U.S.,
s u p r a , 293F 1014.
The standard for admissibility of new scientific
evidence at a criminal trial is then neither common to cri-
minal litigation, nor easily applied in the individual case.
U.S. V. Addison, 498 F.2d 741 (D.C. Cir. 1974). The land-

mark case, P e o p l e v . Marx, 54 Cal.App.3d 100; 126 Cal.Rptr.

350 (1975), upheld the admissibility of bitemark evidence

on the grounds of superior trustworthiness, as the trier of
fact could see f o r itself, by looking at the material ob-
ject exhibits of slides, photographs, x-rays and models of
the victim's bitemark wounds, and what constituted the basis
for comparison with the defendant's dentition. Marx did not

rely on untested techniques, urnproven hypothesis, intuition

or relevation, rather scientific and professional techniques
to the solution of a particular problem which, though novel,
was within the capabilities of those techniques. PeopZe 2).

99
S$one, 1 4 3 Cal.Rptr. 61, 69 76 Cal. App.3d 625 I C a l . 2d D.
C.A. 1978). The most exhaustive legal treatise on hitemark
identification is found in S t a t e D. S a g e r , 600 S.W.2d 541
(Mo.W.D.C.A. 19801, cert,den. 450 U . S . 910, 101 S.Ct. 1348,
67 L.Ed.2d 334 the most recent, P e o p Ze v. MiddZeton, 444
N.Y.S.2d 581 (N.Y.C.A. 1981).
Many other jurisdictions have admitted biternark
comparison and identification into evidence:
S t a t e v . G a r r i s o n , 120 Ariz. 255, 5 8 5 P.2d 563,

(AZ. 1978); P e o p l e v . S Z o n e , 7 6 Cal.App.3d 611, 143 Ca1.Rptr.

61 (Cal.2d DCA 1978); P e o p l e v. W a t s o n , 75 Cal.App.3d 384,
142 Cal.Rptr. 134 (Cal. 1 s t DCA 1977); P e o p l e v . M i l o n e ,
43 I1LfApp.3d 385, 2 111, D e c . 63, 356 N.E.2d 1350 (111.2d
DCA 1 9 7 6 ) ; N i e h a u s zt. S t a t e , 265 Ind. 655, 359 N.E.2d 513
(Ind. 1977); cert. den. 4 3 4 U,S, 902, 98 S.Ct. 297, 5 4 L.Ed.
2d 188; S t a t e D. P e o p l e s , 227 Kan. 127, 6 0 5 P.2d 135, (Kan.

1980); S t a t e v. K Z e y p a s , 602 S.W.2d 8 6 3 (Mo. 2d DCA 1980);

State 0. Temple, 302 N.C. 1, 273 S.E.2d 273 ( N . C . 1981);

S t a t e v. R o u t h , 3 0 0r.App. 901, 568 P.2d 704 (Or. C.A. 1977);
U n i t e d S t a t e s v. Holland, 378 F.Supp. 144 (E.D.P.R. 1974)
a f f d . sub nom. A p p e a l of E h l y , 5 0 6 F.2d 1050, cert.den.sub
nom. E h Z y v . United S t a t e s , 4 2 0 U . S . 994, 9 5 S.Ct. 1433, 4 3
L.Ed.2d 676 (1975); StcxI;c V. J o n e s , 273 S,C. 723, 2 5 9 S.E.2d 120,

(S.C. 1979); P a t t e r s o n v. S t a t e , 5 0 9 S.W.2d 857 (Tex. Crim.

1974); and see Ann., 77 A.L,R.3d 1122). cf. Mikenas 21.

100
State, 367 So.2d 606 (Fla, 1978); P e e k v . S t a t e 3 9 5 So.2d

492 (Fla. 1980); J e n t zt. S-hate, 408 So.2d 1024 (Fla, 1981).

2.
I
Qualifications-
-a

If the Court finds the bitemark evidence l a c k s

sufficient scientific depth, further argument is unnecessary
on the issue; if the Court finds the underlying scientific
principles do provide the predicate only one of the three
questions raised in S t a t e v . Sager, s u p r a , 600 S.W.2d 561
is satisfied:

(1) H a s the science of bitemark identifi-

cation developed to such a degree as to its
reliability and credibility to permit its
use as evidence in criminal proceedings?
Id.

The second test enunciated is:

(2) Does the evidence show or establish
the qualifications of the state's wit-
nesses as experts, enabling them to ren-
der an expert opinion? Id.
The trial judge expressed concerns over the impar-
tiality of the state's expert witness ( R 3 3 5 7 - 3 3 5 8 ) . The
concern was voiced over the s t a r witness Dr. Richard Souv-
iron deliberately violating a court order and conducting a
symposium on the TED BUNDY bitemark analysis prior to trial
( R 1142-1144). Trial judge Cowart ultimately denied Defense
Motion to Strike Testimony of State's Forensic Odontologist
( R 8641) after initially deferring ruling pretrial until af-

ter the selection of the jury ( R 3 3 5 7 ) .

 The partiality and b i a s of the witness is a
disqualifying feature in itself sufficient to preclude his
testimony. PeopZe v . KeZZy, 17 Cal.3d 24, 130 Ca1.Rptr.

144, 549 P.2d 1240 (1976). By his association with the

technique of biternark identification, by his manifest
vested interest in protecting his own reputation and perso-
nal interests, and by his disregard for the orders of the
court, the witness effectively disqualified himself, or
should have been disqualified by the court. He suffered
such a fate before in his history ( R 2 7 5 9 ) .

3. F a c t u a l Basis
The third test recognized in S a g e r , s u p r a , 6 0 0
S.W.2d 561, and cases therein cited is:
(3) Was the factual basis which served
as the basis for expert opinions here-
in supported by reliable and credible
evidence?
The original photograph of the bitemark on Lisa Le-
v y ' s left buttock was made by St, Howard Winkler (R 8649-
8650). The negative of that photograph was supplied to

Frank Lanzilla, FDLE;together they comprised exhibits 3-E

and 3-F (R 8 6 5 0 ) . Of critical concern for later bitemark
analysis was the blow-up of these exhibits ( R 8 7 0 1 - 8 7 0 3 1 ,
no expert i n the field of photography authenticated the re-
lationship,if any,between the original negatives and prints
to the life sized one-to-one prints used by the state's

102
witnesses (R 8743). Only Dr. Souviron whose impartiality
was already suspect testified as these measurements and re-
lationships which were of critical concern ( R 8675, 8850)

to the bitemark comparison (R 8 6 4 7 , 8698).

Dr. Souviron was self acknowledged as an expert
in t h e field of "forensic dentistry" ( R 8 6 3 3 ) - "Forensic
odontalogy" is a synonymous term comprised of (a) dental
identification of remains, (b) bite mark comparison, ( c )
trauma and oral injury and (d) dental malpractice. 51 SO,

Gal, L. R. 309, "Admissibility of Bite Mark Evidence, n. 3.

See a l s o W r f g h i V. State, 3 4 8 So.2d 26 (Fla. 1st DCA 1 9 7 7 )

at 2 9 . The same photographs were used by both experts ( R

8739) f o r their analyses, Comparisons between the image in
the photograph w e r e made with stone and wax c a s t s of BUNDY'S
mouth (R 8713, 8856) by each doctor.
The failure to adduce expert testimony regarding
the photographic techniques leaves an insufficient factual
predicate f o r the comparison based opinions. "Distortion"
was not explained or accounted for. U.S. SeZZers, 566
ZJ.

F,2d 884 (4th Cir. 1977). The "variations in lens, perspec-

tive, light, and development paper," id. should be accounted
for.

"[N]o evidence was offered to substan-

tiate ...
measurements by testimony
as to the type of l e n s used, and the
probable position and angle of the

103
 camera when the photograph was taken.
Thus it is impossible to determine
whether or n o t the photograph in ques-
tion distorts the heights and lengths
. . ., although it was the [state's]
obligation to establish that the [ex
perts'] calculations were not based
on distortious. As it now appears,
these calcuZations a r e unreliable."
U.S. v . TranowskC, 659 F.2d 750 (7th.
Cir. 1981). (emphasis added)

Within the context of a criminal trial, scienti-

fic or expert testimony particularly courts the danger of

undue prejudice or of confusing the issues or misleading

the jury because of its aura of special reliability and
trustworthiness. In recognition of the outcome determina-
tive impact of opinion evidence, clothed with the weight of
expertise shown to be unreliable and untrustworthy, the
case should be reversed. U,S. v . Brown, 501 F.2d 146 (9th
Cir. 1974), r e v ' d on other grounds s u b . nom. U.S. v . N o b l e s ,
422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) [photo

comparison identification].cf. Rules 702, 7 0 4 , Fed.R.Evid.;

SS90.702, 90.703 Fla.Stat,

4. Opinion on Guilt
DR. SOUVIRON: I was given four pic-
tures, has obviously (sic) blood in
the rectal area here, the individual
has been beaten to death, I don't
think this is consistent with a 12
year ( R 8 7 8 8 ) old child ( R 8789).
The testimony was improper and prejudicial, It
should have been stricken by the court of its own motion
Gibbs v . S t a t e , 193 So.2d 460 (Fla. 2d DCA 1967) at 463,

104
citing B l a c k w e l l v. S t a t e , 7 6 Fla. 124, 7 9 So. 731, 1 A . L . R .
502; U r g a v . S t a t e , 104 So.2d 4 3 (Fla. 2d DCA 1958)- In
Gibbs the witness Walker when asked to identify a picture,
stated it was his nephew lying on the ground dead. There-

after
"Q, Mr. Flalker, do you know when that
photograph was taken?
A. That was taken immediately after
the -he murdered my nephew." Gibbs
v . S t a t e , s u p r a , 193 So.2d 403.

The testimony of Dr. Souviron did not contain the

legal conclusion, but for a forensic odontologist is similar
to the situation encountered by the witness doctor in F a r t e y
v. State, 324 So.2d 662 (Fla. 4 DCA 1975), at 663:
a. "Well, my opinion from the history,
and cursory examination and from finding
the vagina loaded with sperm at the time,
was that she had been raped."
No predicate was established f o r the testimony as the sub-
ject matter was beyond the doctor's expertise and his analy-
sis was entirely based upon photographs and the suspects den-
tition, not personal observation of the victim (R 8 7 9 3 ) . J o h n -
son v . S t a t e , 314 So.2d 248 (Fla. 1st DCA 1975) at 252, would
stand for reversal on prejudicial error,

--_
5. Standards
Every expert who testified regarding bitemark
analysis testified that no standards have been articulated for
bitemark identification; state's witnesses: Dr. Souviron ( R
2873, 2902, 8728), Dr. Levine ( R 30491, Dr. Sperber (R

3116); defense witnesses, Dr. Grew ( R 3151), Dr, DeVore

105
 I

(R 3195-3196, 3 2 2 8 - 3 2 3 1 ) . ''No evidence allows us to say a

particular set of teeth left a particular [bite] mark,"
Dr. Lowell J. Levine ( R 3053).
The problem of specificity of the camparison is
the most difficult and controversial area within the realm
of forensic odontology. Sopher, I.M., F o r e n s i c Dentistry,

"Bite Mark Analysis," [Thomas Publisher; Springfield, I11

(1976)], p . 140. "The problem of specificity in the bite
mark analysis results from the lack of a scientific core of
basic data for comparison," Id, Classification of denti-
tion on a sufficiently large segment of the population is
at a similarly embryonic stage as the classification of the
first one hundred fingerprints. Id.;51 So. Ca1.L.R. 309,

324, n.90.
From the lack of definition and lack of standards
opinions vary widely; examples illustrate the breadth of
discrepancy:
a. S o p h e r , s u p r a , at 152: "The bite mark analysis
indicated that there was absolutely no doubt
that the individual f r o m whom the models were
made would be expected to produce a bite mark
pattern identical to the one noted on the a r m
of the victim." The opinion was later ex-
panded to "extremely consistent. ''
b. People 0 . W a t s o n , s u p p a , 75 Cal.App.3d 402,
142 Cal.Rptr. 143 (Dr. Beckstead) : ' I . . . the
dental impressions taken of the defendant's
teeth were consistent with the bitemarks
found on the victim's face.
C. s u p r a , 600 S.W.2d 563 (Dr.
S t a t e v . Sager,
Luntz): ''- ..
the bite mark r e f l e c t e d in the
photograph was beyond a reasonable doubt placed
 Furness) idAat 5 6 4 "'basedupon reasonable m e d -
ical and dental certainty' that the person
from whom the casts were obtained inflicted
the wound depicted in the photograph."
d.
Ca1.Rptr. 6 7 (Dr. Berg) ' I ' , . .
PeopZe v. SZone, s u p r a , 76 Cal.App.3d 622, 143
it is very
highly probable that the bite mark on the vic-
tim was perpetrated by the teeth belonging
.
to the defendant '' Id.at 68 (Dr. Vale)"
. , .
on the body of the decedent ...
it was highly probable that the bite mark
was made by
the teeth of the defendant." " H i g h l y proba-
ble" was equated with "reasonable dental cer-
tainty. 'I
e. flfehaus v . S t a t e , supra,
3 5 9 N.E.2d 516 (Dr.
Standish) the "bitemarks found upon the vic-
tim had been inflicted by the defendant,"
f. S t a t e V . G a r r i s o n , s u p r a , 585 P.2d 566 (Dr,
Campbell): "'my conclusion w a s that the bite-
marks on the deceased, and the bitemarks pro-
duced by the model that I received, were con-
sistent, the marks w e r e consistent with those
being made by the teeth that I received.'"

g. S t a t e v. K Z e y p a s , s u p r a , 602 S.W.2d 868 (Dr.

Gier): "'It's my opinion that within a rea-
sonable scientific certainty that the bite-
marks were made by the defendant.'"
h. S t a t e v . P e o p Z e , s u p r a , 6 0 5 P.2d 141 (Dr.
Krauss): .. it was highly probable the
appellant bit the victim's left breast."
i. Gustafson, G. F o r e n s i c O d o n t o l o g y , "Rite Marks"
(American Elsevier Pub. Inc.; N.Y. 1966), p.
162. (Strom) "positive or no basis f o r conclu-
sion; (Schaidt) high probability, (Strom)
"positive or no basis f o r conclusion; (Schaidt)
high probability.

j. B U I V D Y ( D r . Souviran): Within a reasonable degree

of dental certainty ( R 8 7 3 8 ) BUNDY'S teeth
made the bitemarks. (Dr. Levine): Within a
reasonable degree of dental certainty ( R 8952).

107
 I

Florida law, llrorth v * S t a t e , 6 5 So.2d 7 7 (Pla,

1952), and procedure, S 9 0 , 7 0 3 Pla.Stat., allow expert opinions
which encompass ultimate i s s u e s of fact. Butfibba and
Farleg caution against opinions which encompass the whale
case. Two facts of must be absolutely established as a
predicate for the bitemark opinion evidence: (1) proximity
of time of infliction of the bitemarks on the deceased
1
with death and (2) caustion of the biternarks by the accused. - - - - I
Both legs must stand together to bear the weight of rele-
vancy.
Dr. Souviron opined that the bitemarks were in-
flicted at or near death ( R 11); the pathologist Dr, Thomas
P. Wood joined in the opinion (R 7796). The identification
comparison testimony of Dr. Souviron (R 8 7 3 8 ) and Dr. Levine
(R 8898-9001) o p i n i o n a t e d that BUNDY'S teeth had made the
bitemarks. The whole case i s closed. The whole case is
based on opinion testimony. Standards must be fashioned by
the Court in this case of first impression. The bitemark
comparison identification o p i n i o n testimony, in the f a c t s
of this case, being in no way restricted, r e s u l t e d in ex-
pert opinion testimony on the guilt of accused in violation
of G i b b s and F a r Z e y . Appellant would propose that the facts

108
o n l y of analysis and comparison be presented t o the jury, and

the opinion testimony be disallowed. As Dr. Souviron noted

(R 2826), it i s similar t o assembling a puzzle which to a

certain extent, l a y persons are capable of putting t o g e t h e r .

A verdict, as a matter of l a w and f a c t , would presuppose

t h i s conclusion.
 I.
THE TERM "FAILURE" CONTAINED IN THE J U R Y
.
INSTRUCTTONI E'LA STD JURY IPJSTR ( C R I M ) .
2.13(h), (R 9 4 7 8 ) CONNOTED A PERSONAL RE-
QUIREMENT ON THE ACCUSED WHICH WAS OMMITED
OR NEGLECTED AND AMOUNTED TO JUDICIAL COM-
MENT ON THE ACCUSED'S SILENCE IN DENIAL OF
H I S CONSTITUTIONAL RIGHTS TO A FAIR AND IM-
PARTIAL TRIAL.

The essential mainstay of the United States crimi-

nal justice system guarantees the right of a person to remain
silent unless he chooses to speak of his own free w i l l . A
person should suffer no penalty for exercising those rights.
MaZZoy v . Hogan, 3 7 8 U.S. 3 , 8 4 S.Ct. 1498 at 1493 (1964);
G r i f f i n v. C a l i f o r n i a , 370 U.S. at 679, 84 S.Ct. at 1493
(1965); R o g e r s v. Richmond, 3 6 8 U.S. 5 3 4 , 8 1 S.Ct. 7 3 5 , 739,

5 L.Ed.2d 7 6 0 (1961).

The term "failure" is defined, "omission of p e r f o r -

mance of an action or t a s k e s p . neglect of an assigned, ex-
pected, or appropriate action." W e b s t e r ' s Third New I n t e r n a -

LionaZ Dictionary, (Merriam Co.; Springfield, MA 1971). The

instruction literally is for the jury to draw adverse refer-
ences from the defendant's silence as the instruction ignores
other possible reasons f o r the defendant remaining silent.
G r i f f i n v. C a l i f o r n i a , 3 8 0 U.S. 609, 8 4 S.Ct. 1493

(1965) stressed that comment on refusal to speak was a penalty

imposed by courts for exercising a constitutional privilege.
Using the term " f a i l u r e " in the j u r y instruction eroded the
privilege, makinq it costly. G r i f f i n v . California, 3 8 0 U . S .

110
at 614; M a Z l o y v. Hogan, 378 U.S. 5 (1965); Tehan v. United
States, 3 8 2 U.S. 413, (1966). Adverse inferences drawn from
a defendant's exercising his right not to testify are not

warranted since a defendant may have reason to avoid testi-

fying which bear no relation to fear of exposing guilt, such

as poor demeanor or timidity. WzZson v. Unzted S t a t e s , 149

U.S. 6 0 , 1 3 S.Ct, 765 (1893).

The G r i f f i n court held there could be no negative

comment on refusing to testify. The use of the term "failure,"
however, accomplishes the exact opposite. The term "failure"
rather than underscoring the defendant's fifth amendment
rights, reflects literally 'h duty to explain that which has
been ommited." Prejudice attached to the defendant despite
the good intentions of the Court. Tyafficante zl. State, 9 2
So.2d 811 (Fla, 1 9 5 7 ) , Harper v . State, 1 5 1 So.2d 881 (Fla.

2d DCA 1963). Ma&hi.s zr. State, 2 6 7 So.2d 846 (Fla. 4th DCA
1972); WiZson v . S t a t e , 371 So.2d 126 (Fla. 1st DCA 1978).
Florida law prohibits any comment to be made, directly or
indirectly, on the right to silence of a defendant in a
criminal trial. Trafficante v , S t a h e , 9 2 So.2d 811 (Fla,

1957); H a r p e r , v . S t a t e , 151 So.2d 881 (Fla. 2d DCA 19631,

F1a.R.Crim.P. 3.250,
The instruction is in effect, a judicial comment on
the fact that the defendant should have taken the stand and

makes the accused a witness against himself contrary to S12

111
 of the D e c l a r a t i o n of Rights af the F l o r i d a Constitution,
T o Z Z i u e r v . S t a t e , 133 So.2d 5 6 5 (Fla. 3d DCA 1961). The

comment is all. the more devasting when initiated by the

t r i a l judge. Layton v. F Z o r i d a , 346 So.2d 1244 (Fla. 1st
DCA 1 9 7 6 ) ; Hamilton v. State, 109 So.2d 422 (Fla. 3d DCA
1959). The instruction served only to highlight the fact
t h a t the accused did not take the stand. The instructions

added to the weight of any adverse inferences the j u r y may

have already drawn from their own observation that the defen-
dant did not take the stand.
Any comment which is "fairly susceptible" o f b e i n g
interpreted by the jury as r e f e r r i n g t o a criminal defendant's
e r e f u s a l to testify constitutes reversible error, without re-

sort to the harmless error doctrine. Traffzcante v . S t a t e ,

9 2 So.2d 811 (Fla. 1 9 5 7 ) , cited in David v. S t a t e , 369 So.2d

9 4 3 (Fla. 19790 at 944; K o l s k y v , S t a t e , 182 So.2d 305 (Fla.

2d DCA 1 9 6 6 ) ; V i Z t o n v. S t a t e , 127 So.2d 460 (Fla. 2d DCA 1961);

of King v - S t a t e , 143 So.2d 4 5 8 , 464-466 ( F l a . 1962). cf.

Layton v . F l o r i d a , 346 So.2d 1244 (Fla, 1st DCA 1976); Traffi-

cante V. State, 9 2 So.2d 8 1 1 (Pla. 1Y57); T o Z Z i v e r v " S t a t e ,

1 3 3 So.2d 324 (Fla. 2d DCA 1 9 6 7 ) ; G r i f f i n 2,. California, 380

U.S. 6 0 9 , 8 5 S.Ct. 1229, 14 L.Ed.2d 106 ( 1 9 6 5 ) .

112
 J.
DEFENDANTS R I G H T TO COUNSEL WAS VIOLATED
BY THE T R I A L COURT'S DEPJIAL O F HIS MOTION
TO P E W I T APPEARANCE OF PRO BOlVO OUT-OF-
STATE COUNSEL, PRO HAC VICE.

A legally sufficient defense to the case against

THEODORE ROBERT BUNDY required experienced supervisory Coun-

sel to coordinate trial tactics and implement overall legal

strategy f r o m the time BUNDY contacted him, On the day after
his arrest ( R 6 8 9 5 ) through pretrial ( R 16-17, 24, 31-32, 4 3 8 -
442, 725-744, 1704, 1705, 1713, 2022-2156) Millard Farmer

s t o o d r e a d y to o f f e r his services as supervisory counsel.

Farmer took his case in federal court up through the Fifth

Circuit, where he was denied federal injunctive relief on
two grounds. The Court did not rule on BUNDY'S Sixth Amend-

ment holding that it would violate principles of comity if

a federal court intervened in a state criminal proceeding.
Bundy v , Rudd, 581 F.2d 1126 (5th Cir. 1978) at 1129-1130.
T h e Fifth Circuit panel did, however, reach the merits of

Farmer's claim. It ruled that whatever property right an

attorney miqht have in representing a defendant did not a t t a c h
until he had attained admission p r o hac v i c e and commenced
representation. Id, at 1130-1132. Since counsel had achieved
neither, he had no standing to assert that the trial court's
failure to admit him p r o hac v i c e deprived him of his right
to represent BUNDY without due process of law. Id. The
Fifth Circuit's rejection of Farmer's due process claim anti-

113
cipated the holding o f the United States Supreme Court in
L e i s u. FZynt, 439 U . S . 438 (1979) reh.den. 441 U . S . 956,

which denied a similar challenge.

It is BUNDY'S right to counsel, n o t , Farmer I s

right to represent him that 1s raised here. The right to
counsel of one's choosing is one of the most fundamental
constitutional guarantees. Pouell 0. A l a b a m a , 287 U.S. 45,

53 (1932); V n i t e d S t a t e s 2.r. B u r t o n , 584 F.2d 488 (D.D.C.

1978); lkh-zited S t a t e s v. D i m i t x , 538 F.2d 1214, 1219 (5th

Cir. 1979) cert-den. 429 U . S . 1104. Although the right

to choose counsel i s not absolute, and courts may impose rea-
sonable limitation on this right, BUNDY'S case does not have
the characteristics which have triggered the restriction.
The right asserted here is BUNDY'S, not Farmer's. L e i s v.
F Z y n t , 439 U.S. 438 (1979).Farmer requested to appear p r o

bono; it is not a case of BUNDY'S insisting that the court

appoint a particular counsel, as Farmer's admission p r o
h a c vice would impose no inconvenience on himself or on the

court. United S t a t e s v. Brown, 591 F.2d 207, 310 (5th Cir.

1979); lhzited S t a t e s v . = r a y , 565 F.2d 881, 887 (5th C i r .

1Y78); V n i t e d S t a t e s v . Harrelson, 477 F.2d 383, 384 (5th.

Cir. 1973); Douglas v. S t a t e , 2 1 2 So.2d 42 (Fla. 2d DCA 1968);
W l Z d e r v . S t a t e , 156 So.2d 395, 396-397 (Fla. 1st DCA 1963).

BUNDY requested no continuance to facilitate Farmer's repre-

sentation which moots any argument that he moved f o r the p r o

114
hac v i c e appointment to delay the proceedings. Vnited States

v . Burton, supra, 584 F.2d 408, 490-491; G a n d y 2). Alabama,

569 F.2d 1218, 1323-1325 (5th Cir. 1978).
Judge Cowart justified his denial of Farmer's motion
for admission p r o hue v i c e in part by referring to the avail-
ability of the office of the Public Defender to represent
BUNDY (R 438-442). S a n d e r s v . RusseZZ, 401 F.2d 241 (5th
Cir. 1978), addressed the issue of defendants choice of

counsel :
Lack of necessity as in the judge'sview
simply is not and cannot be a proper
basis f o r exclusion in these cases. The
trial court cannot substitute its judg-
ment for that of the litigant in the
choice or number of counsel that the li-
tigant may f e e l is required to properly
represent his interest Id. at 246.
Ethical Canon 3-9 of the Florida Code of Professio-
nal Responsibility recognizes the desirability of p r o h a c e
vice admissions.
[Tlhe legal profession should discour-
age regulation that unreasonably imposes
territorial limitations upon the right
of a lawyer to handle the legai affairs
of his client or on the opportunity of
a client to obtain the services of a
lawyer of his choice in all matters in-
cluding the presentation of a contested
matter in a tribunal before which the
lawyers not permanently admitted to
practice. (See a l s o n y n t v . L e i s , 5 7 4
F.2d 874, 8 7 8 (5th Cir. 1977) reversed
on other grounds 439 U . S . 438).
Judge Cowart made much of the contempt orders
Farmer had suffered in Georgia ( R 4 3 9 ) . He failed, however,

i15
to consider the anxious circumstances and repetitive prose-
cutorial abuses which led to the incident giving rise to the
contempt citations (R 2042-2067). Although he so stipulated
in the order, Judge Cowart also apparently disregarded the
significance of Farmer's status a s a member in good standing
of the Georgia Bar. As the S a n d e r s court has held:
[Aidmission to a state bar is a basic
determinant both of the attorney's pro-
fessional qualification and good moral
character because the state bar is the
standard setting body that initially
investigates and actively takes steps
to insure that the canons of professio-
nal ethics are observed. S a n d e r s z'.
RusselZ, s u p r a J 401 F.2d 241, 2 4 6 .

Perhaps, Farmer's fitness to practice would have

been adequately impeached by evidence of disciplinary pro-
cedures instituted against him by the Georgia B a r , but no
such evidence appears from the record. Nor did the hearing
before Judge Cowart (R 2022-2156) produce any incontroverti-
ble proof of Farmer's fitness. The Sixth Amendment guaran-
tees of effective assistance of counsel and the Fourteenth
Amendment guarantee of due process of law assumes awesome
proportions in a capital case. Where the record is volumi-
nous, the charged offense sensational, and t h e legal issues
Byzantine in complexity, the assurance of right to
counsel becomes even more critical. As such, the denial of
BUNDY'S motion for p r o bono counsel to appear p r o hue vice

was constitutional and legal error.

116
e K.
THE COURT'S INCLUSION OF JURY INSTRUCTIONS PER-
MITTING J U R O R S TQ INFER KNOWLEDGE OF GUILT FROM
FLIGHT WITHOUT CAUTIONARY INSTRUCTIONS CONSTITU-
TED ERROR-

At the close of the trial, the Court instructed the

j u r y that it may infer consciousness of guilt from flight

(R 9 7 4 4 - 9 7 4 5 ) . The flight t o which this instruction would

have applied occurred on 15 F e b r u a r y 1 9 7 8 (R 6 7 8 7 - 6 7 9 5 ) ,
one month after the Chi Omega slayings. Defense counsel
timely objected to the instruction on two grounds. First,
the jurors had no knowledge of other crimes (like the credit
card theft, see R 6 8 9 5 ) of which BUNDY was suspected. Se-

a condly, the Court's instructions did not specify that the

jurors had to find some relationship between BUNDY'S flight
and guilt of t h e crimes c h a r g e d to support on inference of
guilt from flight ( R 9 5 1 2 - 9 5 1 5 ) .
The Fifth Circuit has held that a jury instruction
regarding f l i g h t as evidence of guilt is justified only where
the jury has access to evidence which supports an inference
from a consciousness of guilt to consciousness of guilt con-
cerning the crime charged. V n i t e d S t a t e s v. M y e r s , 5 5 0 F.2d

1036, 1049, 1050, (5th Cir, 1977) cert.den. 4 3 9 U.S. 847.

BUNDY admitted havinq s t o l e n credit cards (R 6 8 9 5 ) . When

stopped in Pensacola, he had a stolen license tag on his
car (R 6 7 9 2 ) . BUNDY was wanted by f e d e r a l authorities in
connection with a kidnapping conviction in Utah (R 9 8 6 3 - 9 8 7 8 ) .

117
Because of BUNDY'S awareness of these charges against him, an
inference of consciousness of guilt or his part for the Chi
Omega incidents cannot be sustained.
In M y e r s , the possibility of intervening motiva-
tions for flight gave r i s e to the crucial requirement of

It is the instinctive or impulsive charac-

ter of the defendant's behavior, like
flinching, that indicates fear of appre-
hension and g i v e s evidence of flight such
trustworthiness as it possesses [ c i t a -
t i o n ommited]. The more remote in time
the alleged flight is from the commiss-
ion or accusation of an offense the
greater the likelihood that it r e s u l t e d
from something other than feelings of
guilt concerning that offense. k < t e d
S t a t e s 0, M y e r s , s u p r a , 5 5 0 F.2d at
1051.
BUNDY'S flight from the arresting officer in Pensa-
cola occurred one month after the Tallahassee offenses. Any
inference of guilt from the Pensacola incident or his depa-
ture from Tallahassee in mid-February, 1978,(R 7959) was too
remote in time to be r e l i a b l e .
TheMyers decision in consistent with Florida law.
Florida cases upholding j u r y instruction on flight as evi-
dence of guilt intent have defended the trial court's instruc-
tion on grounds that the defendant's flight immediately en-
sued the commission of crime charged. ViZLagelieu v. S t a t e ,

347 So.2d 445 (Fla. 3d DCA 1977); Proffitt v . S t a t e , 315 So.2d

461 ( F l a . 1975); aff'd per curiam 428 U.S. 242; WiZZCarns v.

118
State, 268 Sa.2d 566 (Fla. 3d DCA 1972): H a r g r e t t v . State,

755 So.2d 298 ( F l a . 3d DCA 1969). BUNDY remained in Talla-

hassee for nearly a month after the Chi Omega incidents. His
case is therefore more analogous to Barnes d. Skate, 348

So.2d 599 (Fla. 4th DCA 1977), which held improper a jury

instruction on flight because of the lack of any evidence

that the defendant had fled the scene of the crime.
In addition to the issues of relevancy and imme-
diacy raised invyers and mirrored in Florida law, another
legal principle is violated by the Court's instruction.
The Court's refusal to grant defense counsel's request for
a modification of the instruction on flight (R 9512-9515)

had a great prejudicial impact. He authorized the jurors

to infer guilt from flight without cautioning them to as-
certain whether any guilty state of mind they found had
any relevance to the crimes charged. In B a t e y v . S t a t e ,
355 So.2d 1271 (Fla. 1st DCA 1978), the court ruled that

the propriety of j u r y instruction on flight would a l s o de-

termine whether the judge had properly or improperly commented
on the evidence. Because of the other possible sources of
'guilty knowledge' and the length of time between the Chi
Omega incident and the 'flight', the jury instruction in

BUNDY'S case was improper. The Court's instruction thus

constituted an improper judicial comment on the evidence.

119
 L.
THE TRIAL COURT ERRED IN DENYING DEFENDANT
AN EVIDENTTARY HEARING ON THE EFFECTIVENESS
OF ASSISTANCE OF HIS TRIAL COUNSEL.

1.
----1
Standards in Genesral
-u
-.

The record is replete with allegations of or actual

instances of the failure of counsel to dispose of their con-
stitutional obligation as counsel. Most noteworthy is the

fact that no court appointed counsel had any capital case e x -

perience. The trial closed with no counsel with any previous
capital experience (R 9822). Knight v . S t a t e , 394 So.2d 9 9 7
(Fla. 1981) sets forth a f o u r tier calculus:
a. The act or omission of counsel must
be detailed in pleading.

b, The defendant has the burden of proof

that the act or omission of counsel
was measurably below that of compe-
tent counsel.
c. The defendant has the burden of
proving "prejudice" to the extent
that the acts or omission of coun-
sel likely affected the outcome of
the court proceedings.
d. The state may r e b u t all assertious
by proving beyond a reasonable
doubt no prejudice in fact occured.
2. Acts -
-* -
or Omissions
a. Counsel were not sufficiently prepared f o r the
bitemark challenge ( R 2465); b. counsel did not adequately
notice its motion to exclude the public depositions (R 2681);

c. counsel was not timely in moving to challenge the grand

j u r y which indicted the defendant ( R 2645); d. counsel did

not adequately confer and consult with their client ( R
2597, 2959, 3599, 3651, 5337, 8305); e. counsel was not
prepared for trial ( R 3960, 6129) despite representations
to the contrary ( R 90241, counsel had not seen certain ex-
hibits ( R 5684, 5930) and was so late in the preparation and
production of certain bitemark evidence, ( R 9 5 9 0 ) the same
was not timely produced f o r the j u r y r s consideration which
would have been admitted if timely produced ( R 9830, 9988);
f. no court appointed counsel had p r i o r capital case experi-

ence ( R 3651, 3677, 9037, 9287, 9296), and the case concluded
with no counsel with any p r i o r capital case experience ( R
9822); g . counsel was not timely in producing semen testing
analysis ( R 9426); counsel assistance was below the standard
required in capital cases in the area of trial procedure ( R
2465, 2681, 4207, 4274, 5386, 5466, 5222, 5951, 7059-7079,
7167, 7417, 7428, 7 5 3 4 , 8149, 8649, 8673, 9037, 9258, 9372)-
3. Standard f o r Counsel Conduct
Qualitatively, capital cases are different, K n { g h t
v. Stake, 394 So.2d 997 (Fla. 1981) at 1001. The standards
of conduct f o r counsel are higher in capital cases. Counsel
in every criminal case should sufficiently confer with the
accused to be prepared to present available defenses. U.S.

zt. Gray, 565 F.2d 519 (5th Cir. 1978); U.S. z1. F e s s e Z , 531

F.2d 1275 (5th Cir. 1978); Davis 71. A l a b a m a , 596 F,2d 1214 (5th

Cir. 1979); G a i n e s v e Hopper, 575 F,2d 1147 (5th Cir. 1978)l

Available defenses regarding bitemark and semen analysis, of

121
obvious import, should have been resolutely and timely pre-
pared and presented, R e Z % z'.G e o r g i a , 5 5 4 F.2d 1360 (5th Cir.
1977); Gomez v , Beto, 462 F.261 596 (5th Cir. 1972). Being
unfamilar with evidence to be presented by the prosecution is
a key point, Herring v . E'steZZe, 491 F.2d 125 (5th Cir. 1974),
and the record reflects clear evidence of unprepared counsel.
L e e v . H o p p e r , 499 F.2d 456 (5th Cir. 1974); B e 2 2 v . G e o r g i a ,

5 5 4 F.2d 1360 (5th Cir. 1 9 7 7 ) ; G a f n e s v . H o p p e r , 575 F.2d

1147 (5th Cir. 1978).

4. Prejudice
---
The inexperience of counsel was tantamount to no
effective sentencing phase at a l l , Smith v . Estelle, 602
F.2d 694 (5th Cir. 1979); E s t e Z Z e v . S m i t h , 101 S.Ct. 1866

(1981); Young v . Z a n t , 5 0 6 F.Supp. 2 7 4 (M.D. GA. 1980).

By preparing no effective or timely defense, by

preparing no timely o r effective sentencing case, BUNDY was
denied a fundamentally fair trial. In fact the organization
of counsel, or more correctly, the lack t h e r e o f was tanta-
mount to mere lip service to the constitutional precepts
underlying the Sixth Amendment. K s m p v . L e g g e t t , 6 3 5 F.2d

453 (5th Cir. 1981); VoyZes v . W a t k i n a , 489 F.Supp. 901 (N.

D. Miss. 1980); Young v . Z a n t , 506 F.Supp. 274 (M.D. GA.
1980); B l a k e v . Z a n t , 513 F.Supp. 7 7 2 ( S . D . GA. 1981).
If nothing else, evidence of material import was
kept from the jury by the conduct, or omission, of counsel
( R 9830, 9990, 9998). In and of itself, the matter is
sufficient prejudice for a new trial.

122
 CONCLUSION
- . .+

The final summary of each section c o n - a i n s a "con-

clusion" which summarizes the precise relief sought r e s p e c -

t i v e t o each argument. Rule 9.210(b) ( 5 ) , F1a.R.App.P. For

these r e a s o n s v a r i o u s l y propounded a r e v e r s a l and n e w t r i a l

are i n order.

123

..._ .. .
1