IN THE FLORIDA SUPREME COURT

ARTHUR DENNIS RUTHERFORD,

Petitioner

v. CASE NO. SC05-376

JAMES V. CROSBY,

Respondent.

_______________________________/

RESPONSE TO SUCCESSIVE HABEAS PETITION

Rutherford has filed a “successive” habeas petition raising a Crawford

v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) claim.

The State filed a motion to dismiss. The State reasserts that successive

habeas petitions are not authorized under the rule.

3.851(d)(3),Fla.R.Crim.P (stating that: “All petitions for extraordinary relief

in which the Supreme Court of Florida has original jurisdiction, including

petitions for writ of habeas corpus, shall be filed simultaneously with the

initial brief filed on behalf of the death-sentenced prisoner in the appeal of

the circuit court's order on the initial motion for postconviction relief filed

under this rule.). A successive 3.851 motion is “sole procedural

mechanism” for successively challenging a conviction or sentence. Cf. Baker

v. State, 878 So.2d 1236 (Fla. 2004)(dismissing several habeas petitions as

“unauthorized” and explaining that the relief sought may be obtained, if at

all, by a rule 3.850 motion because such a motion is the “sole procedural

mechanism” for challenging convictions). The State reasserts its position

that Rutherford should file a successive 3.851 motion only if this Court holds

that Crawford is retroactive. Dixon v. State, 730 So.2d 265 (Fla.

1999)(unanimous opinion written by Justice Pariente)(holding that time

period for filing a successive motion for post-conviction relief starts from the

date of the mandate of the case determining that a right is retroactive, not

from the date of the mandate of the earlier case creating that right). The

State, additionally, reasserts its position that Crawford is not retroactive

under either Teague or Witt.

Rutherford contends that the admission of the victim’s hearsay

statements at the penalty phase violated the Confrontation Clause.1 During

the penalty phase, the State introduced the testimony of three of the

victim’s friends, Lois LaVaugh, Richard LaVaugh, and Beverly Elkins. Lois

LaVaugh testified that on the day before the murder Mrs. Salamon said

1 This Court has recognized a Confrontation right at the penalty

phase. Rodriguez v. State, 753 So.2d 29, 43 (Fla. 2000)(stating that the

Sixth Amendment right of confrontation applies to all three phases of the

capital trial citing Donaldson v. State, 722 So.2d 177, 186 (Fla. 1998); Way

v. State, 760 So.2d 903, 917 (Fla. 2000)(concluding that “the confrontation

clause applies to sentencing proceedings” citing Engle v. State, 438 So.2d

803, 814 (Fla. 1983)); Engle v. State, 438 So.2d 803, 814 (Fla.

1983)(observing “[t]his right of confrontation protected by cross3

Rutherford stayed around her house and made her nervous. (TR. 804-810).

Richard LaVaugh testified, on cross-examination, that Mrs. Salamon said she

was scared of Rutherford. (TR. 819). Beverly Elkins testified that Mrs.

Salamon said she was frightened of Rutherford, that he hung around her

house, that she worried that he had intentionally installed her glass doors so

that they would not lock and he acted as though he was “casing the joint.”

(TR. 823-825); Rutherford, 385 F.3d at 1303, 1316-1317.2

Rutherford forfeited any possible Confrontation rights. It was

Rutherford’s act of murdering the victim, Mrs. Salamon, that caused her to

be unavailable to testify. The forfeiture by wrongdoing doctrine is an

equitable exception to both the rule against hearsay and the Confrontation

Clause. Richard D. Friedman, Confrontation: The Search for Basic Principles,

86 GEO. L.J. 1011, 1031 (1998)(stating: “If the accused’s own wrongful

examination is a right that has been applied to the sentencing process.”).

2 Contrary to Rutherford’s assertion that this testimony is not

relevant, evidence that the defendant was casing the victim’s house prior to

the murder and may have intentionally installed her glass doors so that they

would not lock is highly relevant to the calculated and premeditation aspect

of the cold, calculated and premeditated aggravator. While evidence of

planning a robbery may not be used to establish the evidence of planning a

murder, evidence of planning a robbery and murder may be used as

evidence of planning a robbery and murder. Gordon v. State, 704 So.2d

107, 115-116 (Fla. 1997)(rejecting a claim that the defendant was merely

planning a burglary or robbery rather than a murder and affirming a trial

court’s finding of cold, calculated and premeditated aggravating

circumstance when the plan was to rob and murder). Rutherford’s plan was

to rob and then murder the victim. This testimony is relevant to the CCP

conduct is responsible for his inability to confront the witness, then he

should be deemed to have forfeited the confrontation right with respect to

her statements.”). The forfeiture by wrongdoing doctrine creates a hearsay

exception when the party, who is objecting to the hearsay, caused the

declarant to be unavailable.3 The United States Supreme Court has long

endorsed the forfeiture by wrongdoing doctrine and reaffirmed that position

in Crawford. Reynolds v. United States, 98 U.S. 145 (1878)(recognizing that

Sixth Amendment Confrontation Clause rights could be waived by a party’s

misconduct in a bigamy case where the defendant prevented the marshal

from serving the subpoena on his second wife by falsely representing that

the second wife was not present); Crawford, 124 S. Ct. at 1370

(2004)(stating: “the rule of forfeiture by wrongdoing (which we accept)

aggravator.

3 The Federal Rules of Evidence have codified forfeiture by

wrongdoing doctrine. See Rule 804(b)(6), Fed.R.Evid.,(providing:

“statements offered against a party that has engaged or acquiesced in

wrongdoing that was intended to, and did, procure the unavailability of the

declarant as a witness.” While Florida’s Evidence Code does not contain an

identical provision, Florida retained the common law. CHARLES W. EHRHARDT,

FLORIDA EVIDENCE, § 102.1 (2002 Ed.)(explaining “if the provisions of the

Code are not on point, the common law applies” by one of the drafters of the

Florida Evidence Code). The common law of both England and the United

States recognized the doctrine of forfeiture by wrongdoing. Lord Morley's

Case, 6 State Trials, 770 (1666); Reynolds v. United States, 98 U.S. 145,

159 (1878); McDaniel v. State, 16 Miss. 401 (1847)(concluding “it would be

a perversion of [the Constitution's] meaning to exclude the proof, when the

prisoner himself has been the guilty instrument of preventing the production

of the witness by causing his death.”). Therefore, Florida evidence law

extinguishes confrontation claims on essentially equitable grounds.”).

Rutherford may not kill the declarant and then assert that the State violated

his statutory opportunity to rebut the hearsay or his Confrontation Rights by

not producing the declarant at the penalty phase. Such a claim, according

to Professor Friedman, is the definition of chutzpa. Richard D. Friedman,

Confrontation and the Definition of Chutzpa, 31 ISRAEL L. REV. 506 (1997).

Any possible Confrontation Clause or hearsay objection, based on either the

state statute or the federal constitution, was forfeited by Rutherford by his

action of murdering the declarant.

Furthermore, Rutherford had no confrontation rights regarding these

non-testimonial statements. The Crawford Court limited the Confrontation

Clause to testimonial hearsay. The victim made these statements to friends,

not law enforcement officials. And her statements were made to enlist these

friends’ help in dealing with Rutherford’s unwanted presence at her home,

not in any expectation of prosecution. Crawford, 124 S.Ct. at 1364

(explaining that an “accuser who makes a formal statement to government

officers bears testimony in a sense that a person who makes a casual

remark to an acquaintance does not” and giving as one definition of

testimonial, “statements that were made under circumstances which would

lead an objective witness reasonably to believe that the statement would be

recognizes the forfeiture by wrongdoing doctrine as well.

available for use at a later trial”). The victim could not have foreseen that

these statements would be used in the capital prosecution of her murder.

Because the victim’s statements were not testimonial, Rutherford had no

Confrontation rights regarding these statements. The admission of the

victim’s statements did not violate Crawford.

CONCLUSION

The State respectfully requests that this Honorable Court dismiss the

“successive” habeas petition.

Respectfully submitted,

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

____________________________

CHARMAINE M. MILLSAPS

ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 0989134

OFFICE OF THE ATTORNEY GENERAL

THE CAPITOL

TALLAHASSEE, FL 32399-1050

(850) 414-3300

COUNSEL FOR THE STATE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

RESPONSE TO SUCCESSIVE HABEAS PETITION has been furnished by U.S.

Mail to Linda McDermott Esq., 141 N.E. 30th St Wilton Manors, FL 33334 this

12th day of April, 2005.

__________________________

Charmaine M. Millsaps

Attorney for the State of Florida