Number of victims: 1
Date of murder:
Date of arrest:
5 days after
Date of birth:
Victim profile: Joseph
J. Szymankiewicz, 45
Method of murder:
Location: Leon County, Florida, USA
electrocution in Florida on May 25,
On February 4, 1973, the 24 year old Spenkelink, a twice convicted
felon and an escapee from a California correctional camp, picked up
Joseph J. Szymankiewicz, a hitchhiker, while traveling in the
Both men had criminal records, and both were heavy drinkers. They
checked into a hotel room in Tallahassee. After Spenkelink left to
wash the car, he returned and shot Szymankiewicz while he slept in
bed, once in the head just behind the left ear and a second time in
He then told a cover story to the hotel proprietor, paid for an
extra day, and left with Frank Bruum, another hitchiker.
Spenkelink claimed that he shot Szymankiewicz in self-defense in
that he forced sexual relations on him earlier, and forced him to
play "russian roulette." He also claimed that the gun went off
accidentally during a fight between the two.
Less than one week later, Spenkelink and Bruum were arrested for
suspicion of armed robbery in Buena Park, California. The murder
weapon was found in an apartment leased to Bruum and others. Upon
their return to Florida both were tried for First Degree Murder.
Spenkelink was found guilty and Bruum was acquitted.
Spenkelink was the first murderer executed in Florida, and the
second nationwide, following the reinstatement of capital punishment
in 1976. Unlike the first, Gary Gilmore, Spenkelink contested his
execution to the end.
"Capital punishment -- Them without the capital get the
(Quote attributed to John Spenkelink before his
execution in Florida on May 25, 1979).
Spenkelink (born March 29, 1949
in Le Mars, Iowa — died May 25, 1979
in Starke, Florida) was the first
person executed in Florida and the
second nationwide since the
reintroduction of the death penalty
in the United States in 1976.
Unlike the first
nationwide since the reintroduction
(Gary Gilmore), Spenkelink fought
his execution until the very end.
The last person executed in Florida
before the reintroduction of the
death penalty had been in 1964 and
the last one nationwide had been in
Colorado in 1967.
After serving in
a California prison for petty crimes
he travelled to Florida with another
prison inmate. He was condemned to
death in 1973 for murdering a
traveling companion (named Joseph J.
Szymankiewicz) who, Spenkelink
alleged, had offered him homosexual
relations and forced him to play
Russian roulette in a Tallahassee
raised some controversy because he
claimed he shot the victim in self-defense.
According to Spenkelink's attorney,
there was a good chance the sentence
would be commuted. Spenkelink was
offered a chance to admit to second-degree
murder and receive a life sentence,
but he refused.
In 1977 Governor
Reubin O'Donovan Askew signed his
first death warrant, but the court
stayed execution. In 1979 the new
governor, Bob Graham, signed the
second and, despite Supreme Court
Justice Thurgood Marshall, who
issued a stay, this was the final
execution, rumors spread that the
fighting, shouting Spenkelink was
dragged to the electric chair,
gagged, beaten, and had his neck
broken. The rumors caused
Spenkelink's body to be exhumed for
an autopsy and the State further
decided to perform autopsies on all
executed inmates. Some witnesses
believe Spenkelink was already dead
when placed in the electric chair.
He is known for
his last words "Capital punishment:
them without the capital get the
Later in that
spring of 1979, Ted Bundy would
occupy the same cell at Florida
State Prison as Spenkelink had
Abolish Archives - Rick
May 23, 1999
FLORIDA: In Starke, drum beat outside the governor's
mansion as the time neared for Florida to execute John Spenkelink.
Prison officials prepared for their 1st execution in 15 years.
Defense attorneys rushed from court to try to get a last-minute stay.
It was an unsure time 20 years ago as Florida
prepared to carry out the 1st involuntary execution of a convicted
felon since a U.S. Supreme Court ban on capital punishment was
overturned. Since then, 544 people have been executed in the United
States, including 43 in Florida. Serial killers Ted Bundy and Gerald
Stano, "black widow" killer Judy Buenoano and death row sage Willie
Darden have been among those strapped to the same 3-legged oaken
electric chair known as "Old Sparky."
Spenkelink, however, always will be remembered as
the 1st. "It was one of the most searing experiences of my
governorship," said former Gov. Bob Graham, now a U.S. senator.
On May 25, 1979, Spenkelink, 30, was put to death
for the 1973 slaying of Joseph Szymankiewicz in a Tallahassee motel
room. Szymankiewicz, 45, had been shot twice and beaten in the head
with a hatchet after Spenkelink said the man forced him at gunpoint
to commit a homosexual act.
Spenkelink escaped from a California prison in
1972, where he was serving a 5-years-to-life sentence for robbing a
fast-food restaurant, 5 gas stations and 2 people. In the Florida
case, Spenkelink rejected a plea bargain to spare his life. He was
convicted and sentenced to death.
After the Supreme Court blocked executions
nationwide in 1972, Florida was the 1st to draft a new state law. It
was declared constitutional in 1976. The following year, Gov. Reubin
Askew signed Spenkelink's 1st black-bordered death warrant, but his
execution was stayed by courts. Twenty months later, Graham would
sign the warrant that ended Spenkelink's life. Demonstrators
protested outside the governor's mansion, then filled the lobby of
Graham's office the next day.
Graham recalled the protests as "very frightening
to my young daughters. I had to spend a lot of time reassuring them
why this was happening, that this was part of what it was to be in a
country that respected freedom of speech." There also were
logistical hurdles. When the state decided to resume executions,
officials realized no one knew how to operate the chair. There was
no written procedure on how to carry out an execution. There was no
executioner. "We had to start from scratch and rely on people's
memories," said Richard Dugger, then assistant superintendent of
Florida State Prison. He eventually rose to head the state
Department of Corrections.
Superintendent Dave Brierton, who oversaw the
Spenkelink execution, came under criticism for his plans to keep the
blinds drawn in the execution chamber until Spenkelink was strapped
in. Brierton hoped to prevent a circus-like atmosphere at the prison
like that when Gary Gilmore asked to be executed before Utah's
firing squad in 1977. Instead, the closed blinds led to accusations
that Spenkelink had been mistreated and prevented from making a last
statement. An investigation found no evidence that he had been
Just prior to the execution, Brierton pulled a
bottle of Jack Daniels out of his desk and asked Dugger to offer
Spenkelink a drink. "It was to take the edge off," said Brierton,
noting that throughout history the condemned had been offered a
drink - even Anne Boleyn, 2nd wife of Henry VIII. Spenkelink took 2
swigs from the bottle.
"It was a very difficult time for Spenkelink. It
was a very difficult time for me," said Brierton. "It was the loss
of a human life." Brierton said he had 2 fears - the chair wouldn't
work or the governor would call 5 minutes after it was over and say
there was a stay. But there would be no stay. "I was determined and
Gov. Graham was determined that the laws of Florida be carried out,"
said Jim Smith, Florida's attorney general at the time. "It was a
very emotional day. There was no great joy."
Andy Johnson, then a state representative opposed
to the death penalty, witnessed the execution. "We saw a man sizzle
today , and if you leaned forward and looked close you could see
that he sizzled and sizzled again," he said that day. Johnson, who
now hosts a radio talk show in Jacksonville, has since changed his
stance on the death penalty. "It's a matter of justice and vengeance.
There are some people who deserve to die," he said.
Contrary to the predictions of opponents, Smith
noted, Spenkelink's death did not start a flood of executions that
would empty death row. There are 375 people on Florida's death row
today compared with 134 in 1979. While awaiting execution,
Spenkelink composed his own epitaph. "Man is what he chooses to
become. He chooses that for himself."
(Source: Associated Press)
Execution witnesses become part of
this barbaric apparatus
Timothy McVeigh will be executed by lethal
injection on May 16 before a much smaller audience than he wanted.
Not millions of voyeurs, just those whose job it is to carry out the
death penalty, media witnesses, survivors of the bombing and family
members of some of the victims. And what do the latter want from the
experience? Revenge, for some, and the perhaps over-worked concept
of "closure" for others.
I can't imagine actually wanting to see an
execution carried out. That's because I already have done it, and I
would never do it again. Reasonable people can disagree over the
death penalty and over whether executions should be televised.
Perhaps family members, with their lives destroyed and emotions yet
unhealed, can be excused for wanting to see with their own eyes
McVeigh's last breath. But I wonder how many will be glad they did.
The man whose execution I witnessed was named
John Spenkelink. He was the first person in the United States to die
in the electric chair after the U.S. Supreme Court ruled, following
a four-year moratorium, that the states could resume the business of
killing criminals. Gary Gilmore had the dubious honor of actually
being the first to be executed after the court's green light, but
Gilmore had asked to be put out of his misery. A Utah firing squad
gave him his wish in 1977.
Spenkelink, who got into a bar fight in Florida
with a drifter named Joseph Szymankiewicz and killed him, fought his
execution until the end, which came on the early morning of May 25,
As an Atlanta-based correspondent for ABC News, I
had been put on notice that when Spenkelink's appeals ended, and his
time to die came, the story would be mine. Not only that, but I
would get to watch. I was not thrilled. I was then and am today
adamantly opposed to the death penalty. I was willing to cover the
story as a professional newsman, but I did not want to watch the
execution. The witnesses would, in effect, be part of the apparatus
set up to take a life.
But my superiors insisted. The alternative, I was
assured, was to be replaced on the story. "There are plenty of
people ready to come down and watch the guy die," a New York news
executive warned me, "so decide which it will be." I reluctantly
agreed to be a witness, a decision that I have regretted ever since.
On the morning of the execution, I got up,
shaved, dressed and prepared to watch the premeditated taking of a
human life. Reporters and other witnesses were told to gather at 6
a.m. in a field across from the rural prison. We were taken by white
prison buses to the death chamber. There was little talk. We were
led into a concrete-walled room with folding chairs facing a
rectangular glass wall.
Suddenly, curtains were pulled over the glass
partition, and we strained to see what was happening beyond them.
Then, just as suddenly, the curtains parted. And there, seated
before us, was Spenkelink. Metal contacts covered the top of his
head, a mask hid his face, his legs and arms were strapped tightly
to "Old Sparky." Through the eyeholes in the face mask, we could see
his gleaming eyes, darting side-to-side, as if in terror.
At 7 a.m., the appointed time, fellow inmates
grabbed cell bars and shook them violently for several minutes,
sending waves of metallic rattling sounds throughout the old prison.
It was their noisy send-off for Spenkelink.
The first jolt of electricity caused him to
stiffen, his back straightening into the rigid chair back, and his
fingers extending, then clutching as if trying unsuccessfully to
make a fist. The second jolt caused his body to jerk, then relax. A
doctor examined Spenkelink with a stethoscope, silently declared him
dead, and the curtains closed again. The whole thing had taken only
a few minutes.
I felt diminished by the experience, ashamed that
I had taken part in a barbaric process. Killing killers validates
the latters' value system and undermines our claim on civility. The
French writer/philosopher Albert Camus said it best: "For there to
be an equivalency, the death penalty would have to punish a criminal
who had warned his victim of the date at which he would inflict a
horrible death on him and who, from that moment onward, had confined
him at his mercy for months. Such a monster is not encountered in
I had been an unwilling part of the machinery of
premeditated murder, committed in the imperfect name of the state. I
didn't think I would ever get over it. I was right. Those who want
to watch Timothy McVeigh die should consider how debased he was to
commit premeditated murder, and ask, "Who wants to be like him?"
(Source: Opinion, Al Dale, of Atlanta, is a
former ABC News correspondent; Atlanta Journal-Constitution)
Florida ends the nation's
moratorium on executions
Monday, Jun. 04, 1979
The Venetian blinds
in the tiny brown chamber at the Florida
State Prison opened at 10:11 a.m.,
giving the 32 witnesses their first
glimpse through the glass partition at
the condemned man. He was strapped
tightly into the stout oak chair, a
black gag across his mouth. Suddenly a
black hood dropped over his face, and
six attendants stepped back. The
executioner, his identity a secret and
his face also shrouded in black, flipped
a red switch, sending 2,250 volts of
electricity through the man's body, then
two more surges. At 10:18 a.m., a doctor
pronounced him dead, and the Venetian
So ended last week
the life of John Spenkelink, 30, a wiry
drifter and habitual criminal, after a
frenzied week of final appeals, to the
Florida Supreme Court, to the Federal
Appeals Court and to the U.S. Supreme
Court. He had won two brief stays, then
lost them both because of pleas by
Florida officials who were determined to
put him to death.
Finally, he had
kissed his mother and girlfriend goodbye,
taken Communion and delivered to
Episcopal Priest Thomas Feamster a
cryptic epitaph: "Man is what he chooses
to be. He chooses that for himself."
Spenkelink was the
first person involuntarily executed in
the U.S. since 1967,* and the reactions
were immediate. Outside Spenkelink's
cell, the 130 other condemned men on
Florida's death row shouted and pounded
on cell bars. Some 70 demonstrators
gathered in the warm spring sun on a
field near the prison, chanting "Death
row must go" and singing "We shall
intensified the national debate that has
long raged over whether capital
punishment deters crime and should be
retained or is a cruel and unfair form
of revenge that ought to be abolished.
Sociologists have never definitively
answered the question, but the views of
the American public, aroused by violent
crime, seem clear: polls show that
nearly two-thirds of the people favor
capital punishment. Accordingly, after
the U.S. Supreme Court ruled in 1972
against the arbitrary way in which
capital punishment was imposed, 34
states have rewritten their death
penalty laws to conform with the court's
State courts have
imposed death sentences on about 500
people, nearly half of them black men
and all but one of them convicted of
murder. Opponents of capital punishment
fear that Spenkelink's death, ending an
unofficial moratorium, may lead to a
wave of executions. Most of them will be
in the Deep South, which has
traditionally led the nation in imposing
It was thus with a
sense of urgency that many of the
leading opponents of capital punishment
assembled in Florida last week to stage
a last-minute campaign for the hapless
Spenkelink. Henry Schwarzschild of the
American Civil Liberties Union warned of
a "constitutional, legal and political
disaster that will shock and appall the
rest of the world." Former U.S. Attorney
General Ramsey Clark, a late addition to
Spenkelink's defense team, called the
occasion "a tragic moment in American
history" and gibed, "If you work at city
hall you get voluntary manslaughter," a
caustic reference to the lenient verdict
against Dan White, the slayer of San
Francisco Mayor George Moscone and
Supervisor Harvey Milk.
act of the
at 6:46 a.m.
May 18, when
One was for
the jury at
be out of
has a leash
had been in
and out of
at twelve he
the body of
seat of his
to no avail.
him: he had
not been in
teens and he
had been "a
picked up a
43, an Ohio
had spent 16
ending up on
Room 4 of
the Ponce de
dead in bed.
He had been
At his trial
that he had
took only 3½
him to death.
that it is
and that the
went all the
way to the
He drew cartoons with religious messages and once sent his mother a picture of a red, white and blue electric chair captioned, "Spirit of '76." He wrote letters for illiterate inmates and designed stationery for others, decorating the letterheads with hands clasped in prayer. "If I ever get out of here," he said at one point, "I'll do God's work." He occupied much of each day answering his mail, inscribing envelopes with the message: CAPITAL PUNISHMENT MEANS THOSE WITHOUT CAPITAL GET THE PUNISHMENT. Twice a week he was visited by a girlfriend, divorcee Carla Key, 43.
His defenders insisted that Spenkelink had been rehabilitated. "If you want to execute a bad kid, then this is the case," his chief attorney, David Kendall, told the clemency board in April.
"But he has evolved, he has changed."
The clemency appeal was turned down.
Spenkelink begged the Governor to meet with him. Said the condemned man:
"I know the changes I've made since being here. I want him to know who he is killing—the real person, not some idea he has in his head about me." Said Spenkelink's anguished mother Lois, 67, of the Governor: "He doesn't even know my son. How can he kill my son, my only son?"
But Graham, looking haggard, stayed in Tallahassee, avoiding anti-death penalty protesters who blocked his outer office at the state capitol and who kept vigil at the front gate of his mansion, chanting "Bloody Bob! Bloody Bob!" Graham supports capital punishment as a deterrent, maintaining that it is "not inconsistent with Christian values." Said he, while signing the death warrants:
"There are other values of life involved here, including the value of the lives that were taken."
With only a few hours left, Spenkelink's lawyers made their final appeals.
Three lawyers, including Clark, argued before Federal Judge Elbert Tuttle that the court-appointed lawyers who defended Spenkelink at his trial were ineffective. In Washington, Lawyer Joel Berger went from Justice to Justice. Finally, Thurgood Marshall ordered that the execution be stayed. Almost simultaneously, Judge Tuttle did too.
Next morning, the full Supreme Court briefly considered Spenkelink's appeal and voted 7 to 2 to turn it down. In New Orleans, a panel of three federal judges deliberated into the night, then rejected it too. Spenkelink's lawyers appealed once more to the Supreme Court in Washington. At 9:50 a.m. on Friday, only ten minutes before the scheduled execution, the court refused again, by 6 to 2. Almost immediately, Spenkelink, his arms heavily manacled, was led into the death chamber next door.
The Story of Old Sparky
By Sydney Freedberg - St. Petersburg Times
September 25, 1999
In 1972, the U.S. Supreme Court struck down the
death penalty, ruling that it had been applied unfairly. Florida and
other states rushed to rewrite less-arbitrary laws. When the court
upheld them four years later, Oklahoma became the first state to
switch to lethal injection. Texas, worried about the possibility of
a televised death in the electric chair, followed suit and became
the first state to use the method in 1982. But Florida was
determined to keep Old Sparky and its time-honored death rituals.
The first to die when executions resumed in
Florida was John Spenkelink, a white man condemned for murdering his
roommate in a Tallahassee motel. In vain, Spenkelink's lawyers --
among them David Kendall, who later became President Clinton's
private attorney -- argued that the electric chair was "unnecessarily
torturous and wantonly cruel."
On May 25, 1979, Spenkelink, 30, was given two
shots of whiskey, then executed in front of 32 witnesses, including
10 reporters. It took three jolts to kill him. But because the
venetian blinds separating the witness section from the death
chamber were closed until Spenkelink was strapped in, witnesses did
not get a good look. Spenkelink had straps drawn tightly across his
mouth and was denied a final statement by prison officials.
After the execution, rumors spread that a
fighting, shouting Spenkelink had been dragged to the chair, gagged
and beaten, so officials decided to leave the blinds open the next
time. And after Spenkelink's body was exhumed for an autopsy, the
state decided to perform autopsies on all executed inmates, a job
that fell to William Hamilton, the Gainesville-area medical examiner.
Spinkellink v. State, 313 So.2d 666 (Fla.1975)
The Leon County Circuit Court,
John A. Rudd, Sr., J., found defendant guilty of
murder in the first degree, sentenced him to
death, and he appealed.
The Supreme Court, Boyd, J., held that (1) under
the 'plain view' doctrine, gun was properly seized by the police
during warrantless search of defendant's California apartment which
he shared with two others, where, despite defendant's claim that the
gun was found in his bedroom in a drawer, the record clearly showed
that it was found in open drawer in kitchen; furthermore, since a
codefendant, who had been arrested on suspicion of armed robbery,
was only a few feet away from the drawer containing the gun, it fell
within the 'search incident to arrest' exception, whereby an
arresting officer may search the area into which an arrestee might
reach in order to grab a weapon or evidentiary item, (2)
premeditation was established by the evidence, including proof that
defendant endeavored to evade prosecution by flight and that,
shortly before the homicide, he warned a companion that, should the
latter happen to hear a gunshot, it would come from defendant's
motel room, and (3) the aggravating circumstances disclosed by the
record justified imposition of the death sentence. Conviction and
sentence affirmed. Ervin (Retired), J., dissented with opinion.
The pertinent facts appears as follows. The 24
year old Appellant picked up Joseph J. Szymankiewicz, a hitchhiker,
while traveling in the mid-west; both men had criminal records, and
both were heavy drinkers. During their travels Appellant learned
first hand of Szymankiewicz's vicious propensities when the latter
forced him to have homosexual relations with him, when the latter
played 'Russian Roulette' with him and boasted of killing a fellow
inmate while in prison.
After checking into a motel in Tallahassee,
Appellant discovered that his traveling companion had relieved him
of his cash reserves. Appellant concluded that it would be wise to
continue his journey without Szymankiewicz, and, having had his car
Appellant admits that he returned to the motel to remove his
personal belongings and to force Szymankiewicz to return the money
stolen from him. On his return to the motel, he picked up one Frank
Bruum, another hitchhiker, and agreed to take him as far as New
Appellant's testimony is of interest at this
juncture: 'We started back toward the motel and I told this guy, I
said, 'If you don't mind waiting a little ways from the motel, I
think it would be better, because there is another guy in the motel
room that is pretty drunk. He's going to be mad because I was gone
this long.' And I didn't mention nothing to the hitchhiker about Joe
taking my money or hiding my money. And--well, I dropped him off a
little ways from the motel And I told him if he should happen to
hear a gunshot or something, It's in the Ponce de Leon Motel in No.
4. And so what I intended on doing was carrying the (Joe's) gun on
me and going into the motel room, and if I had to, by pointing the
gun I was going to pick up my baggage and leave that motel room.' (Emphasis
He also testified that he hid the pistol in his
clothing; and while admitting that he had fired the gun that killed
Szymankiewicz, Appellant sought to show mitigating circumstances by
showing, first, that he was carrying the gun because he was afraid
for his own life, and, secondly, that the gun discharged during a
fight between the two.
The evidence shows that, although
Szymankiewicz was shot once in the head, he died from a second
bullet fragmenting the spine and rupturing the aorta. It is
undisputed that Appellant prepared a cover story to delay discovery
of the body, giving him the opportunity to leave with Bruum.
Less than one week later Appellant, along with
two others, was in custody for suspicion of armed robbery in Buena
Park, California. One of the other suspects was John Moore, a
hitchhiker who had been picked up in Texas by Appellant (alias Derek
or Derk) and another known to Moore only as Frank.
police learned that all three had signed the apartment lease, Moore
signing as 'uncle' to 'Derek' and Frank; the authorities, having
secured Moore's verbal permission to search the apartment and having
the use of his key, discovered an intoxicated Frank Bruum at the
apartment and placed him under arrest for suspicion of armed robbery.
A search ensued, and in an open kitchen drawer was found the gun
that later proved to be the murder weapon in Szymankiewicz' death.
After their California arrest, Bruum and
Appellant were returned to Florida and tried for first degree murder.
The jury returned a verdict of guilty as to Appellant and not guilty
as to Bruum. After a subsequent mitigation trial, the jury brought
in its advisory verdict recommending that the court impose a
sentence of death on Appellant. The trial judge, having considered
this advisory verdict, sentenced Appellant to death, filing the
appropriate findings of facts. This appeal followed.
It is Appellant's position that, while he shot
the deceased, it was in self defense. Admittedly, the evidence
clearly shows that the deceased was an individual of vicious
temperament and that Appellant was justified in concluding that he
would do well to sever their relationship, continuing his odyssey
without his companion.
Nevertheless, the evidence also is clear that
Appellant was alone in his car away from the motel with the
opportunity for leaving Szymankiewicz and did not do so; instead, he
voluntarily returned to the motel with the deceased's gun hidden,
telling Bruum 'if he should happen to hear a gunshot or something,
it's in the Ponce de Leon Motel in No. 4'.
Appellant claims the gun was fired during a violent, life-or-death
struggle with deceased in which he was fighting for his life, the
firearms examiner testified that the laboratory test-firing
reproduced the pattern of powder residue found on the outer surface
of the pillow case so as to indicate that the weapon was fired
alongside the pillow rather than through it.
did not contradict the evidence that he established a cover-up which
enabled him to flee the scene of the crime with Bruum, saying merely
that he remembers nothing after the first shot was fired. The rule
is that, when a suspect endeavors to evade prosecution by flight,
such fact may be shown in evidence as one of the circumstances from
which guilt may be inferred.
Keeping these facts in mind, we note that, when
Appellant moved for an acquittal, he admitted the facts adduced in
evidence and every conclusion favorable to the Appellee which is
fairly and reasonably inferable therefrom.
Additionally, it has been
held that premeditation may be established by circumstantial
evidence. 'Premeditation, like other factual circumstances, may be
established by circumstantial evidence.
Evidence from which
premeditation may be inferred includes such matters as the nature of
the weapon used, the presence or absence of adequate provocation,
previous difficulties between the parties, the manner in which the
homicide was committed, and the nature and manner of the wounds
inflicted. It must exist for such time before the homicide as will
enable the accused to be conscious of the nature of the deed he is
about to commit and the probable result to flow from it in so far as
the life of his victim is concerned. No definite length of time for
it to exist has been set and indeed could not be. . . .'
It seems clear in this case that Appellant
expected to use the gun when he warned Bruum that, should the latter
happen to hear a gunshot, it would be in his motel room.
Spinkellink v. Wainwright, 578 F.2d 582 (5th
Cir. 1978) (Habeas)
State inmate under sentence of
death sought writ of habeas corpus. The United
States District Court for the Northern District
of Florida, William H. Stafford, J., dismissed
petition, and inmate appealed. The Court of
Appeals, Ainsworth, Circuit Judge, held that:
(1) district court did not err in its conduct
with respect to habeas evidentiary hearing; (2)
exclusion of two veniremen who had conscientious
scruples against death penalty did not violate
defendant's constitutional rights; (3)
application of Florida death penalty statute did
not violate defendant's constitutional rights;
(4) Due Process Clause of the Fourteenth
Amendment did not apply to clemency decision by
the Governor and Cabinet of Florida, and (5)
since no cause or prejudice was shown, objection
as to admission of one of defendant's custodial
statements was waived by his failure to object
at trial; and (6) death penalty statute was not
unconstitutional on ground that jury was
precluded from considering mitigating factors
before imposing death penalty. Affirmed.
This case involves the petition for a writ of
habeas corpus by a Florida state inmate under sentence of death. On
February 4, 1973, petitioner John A. Spenkelink, a 24-year-old white
male and twice convicted felon, who had escaped from a California
correctional camp, murdered his traveling companion, Joseph J.
Szymankiewicz, a white male, in their Tallahassee, Florida motel
Spenkelink shot Szymankiewicz, who was asleep in bed, once in
the head just behind the left ear and a second time in the back,
which fragmented the spine, ruptured the aorta, and resulted in the
victim's death. The petitioner then recounted a cover story to the
motel proprietor in order to delay discovery of the body and left.[Spenkelink
told the proprietor that Szymankiewicz was his brother, that
Szymankiewicz was so drunk that Spenkelink could not get him into
their automobile, and that Szymankiewicz therefore would be left
behind. Spenkelink then paid for an extra night's lodging.]
Authorities apprehended him less than one week
later in Buena Park, California. On December 20, 1973, subsequent to
a jury verdict of guilty of first degree murder, Spenkelink was
sentenced to the death penalty by a Florida state court trial judge
on the jury's recommendation. Now, five years later, following an
unsuccessful direct appeal and unsuccessful collateral review in the
Florida state courts, and two unsuccessful petitions for certiorari
to the United States Supreme Court, Spenkelink seeks federal habeas
He asks this Court, in effect, to reverse his
conviction and annul the decision that he must die for his
premeditated act of murder. After reviewing the record with
painstaking care and considering each of the petitioner's
contentions, we have determined that Spenkelink's conviction and
sentence were proper. Accordingly, we affirm the district court's
dismissal of his petition for habeas corpus.
Spenkelink contends that he murdered
Szymankiewicz in self-defense following a scuffle between the two
after Spenkelink had returned to the motel room to retrieve certain
belongings that Szymankiewicz allegedly had stolen. Florida contends
that Spenkelink murdered Szymankiewicz while he was asleep in bed.
The United States Supreme Court in Proffitt v. Florida, described
the circumstances in Spenkelink's case as " 'career criminal' shot
sleeping traveling companion." Spenkelink contends also that some
time before the shooting Szymankiewicz had antagonized and provoked
him by, among other things, using him as the target for a game of "Russian
roulette" and forcing him to commit oral sodomy at gunpoint.
Unfortunately, the only witness to these alleged activities is
Szymankiewicz, who is now dead. The jury apparently disbelieved
Spenkelink, as evidenced by its verdict and recommended sentence.
The trial jury recommended that Spenkelink
receive the death penalty. The trial court agreed. Pursuant to
Fla.Stat.Ann. s 921.141(3), it found that the felony "was committed
for pecuniary gain, either for another person's money or to re-coup
his own," that the crime "was especially heinous, atrocious and
cruel," that Spenkelink "was previously convicted of a felony
involving the use, or threat of violence to another, to-wit: armed
robbery," and that Spenkelink committed the crime while "under
sentence of imprisonment."
The only mitigating circumstance found by
the trial court was "that possibly the defendant was under the
influence of extreme mental or emotional disturbance," a
consideration which, "based on the record as a whole," the court did
not regard "as a substantial factor." See Fla.Stat.Ann. ss
921.141(5), (6). The Supreme Court of Florida affirmed both the
conviction and sentence.
The first degree murder statute under which the
petitioner was convicted states:
(a) The unlawful killing of a human being, when
perpetrated from a premeditated design to effect the death of the
person killed or any human being, or when committed by a person
engaged in the perpetration of, or in the attempt to perpetrate, any
arson, involuntary sexual battery, robbery, burglary, kidnapping,
aircraft piracy, or unlawful throwing, placing, or discharging of a
destructive device or bomb, or which resulted from the unlawful
distribution of heroin by a person 18 years of age or older when
such drug is proven to be the proximate cause of the death of the
user, shall be murder in the first degree and shall constitute a
capital felony, punishable as provided in s 775.082.
(b) In all cases under this section, the
procedure set forth in s 921.141 shall be followed in order to
determine sentence of death or life imprisonment. Fla.Stat.Ann. s
782.04(1) (West 1976). The statute has since been amended.
Fla.Stat.Ann. s 782.04(1)(a) (West Supp. 1978).
Fla.Stat.Ann. s 775.082(1) provides:
A person who has been convicted of a capital
felony shall be punished by life imprisonment and shall be required
to serve no less than 25 years before becoming eligible for parole
unless the proceeding held to determine sentence according to the
procedure set forth in s 921.141 results in findings by the court
that such person shall be punished by death, and in the latter event
such person shall be punished by death.
Fla.Stat.Ann. s 921.141 provides:
(1) Separate proceedings on issue of penalty.
Upon conviction or adjudication of guilt of a defendant of a capital
felony, the court shall conduct a separate sentencing proceeding to
determine whether the defendant should be sentenced to death or life
imprisonment as authorized by s. 775.082.
The proceeding shall be
conducted by the trial judge before the trial jury as soon as
practicable. If, through impossibility or inability, the trial jury
is unable to reconvene for a hearing on the issue of penalty, having
determined the guilt of the accused, the trial judge may summon a
special juror or jurors as provided in chapter 913 to determine the
issue of the imposition of the penalty. If the trial jury has been
waived, or if the defendant pleaded guilty, the sentencing
proceeding shall be conducted before a jury impaneled for that
purpose, unless waived by the defendant.
In the proceeding, evidence
may be presented as to any matter that the court deems relevant to
sentence, and shall include matters relating to any of the
aggravating or mitigating circumstances enumerated in subsections
(5) and (6).
Any such evidence which the court deems to have
probative value may be received, regardless of its admissibility
under the exclusionary rules of evidence, provided the defendant is
accorded a fair opportunity to rebut any hearsay statements. However,
this subsection shall not be construed to authorize the introduction
of any evidence secured in violation of the constitutions of the
United States or of the State of Florida. The state and the
defendant or his counsel shall be permitted to present argument for
or against sentence of death.
(2) Advisory sentence by the jury. After hearing
all the evidence, the jury shall deliberate and render an advisory
sentence to the court, based upon the following matters:
(a) Whether sufficient aggravating circumstances
exist as enumerated in subsection (5);
(b) Whether sufficient mitigating circumstances
exist as enumerated in subsection (6), which outweigh the
aggravating circumstances found to exist; and
(c) Based on these considerations, whether the
defendant should be sentenced to life imprisonment or death.
(3) Findings in support of sentence of death.
Notwithstanding the recommendation of a majority of the jury, the
court, after weighing the aggravating and mitigating circumstances
shall enter a sentence of life imprisonment or death, but if the
court imposes a sentence of death, it shall set forth in writing its
findings upon which the sentence of death is based as to the facts:
(a) That sufficient aggravating circumstances
exist as enumerated in subsection (5), and
(b) That there are insufficient mitigating
circumstances, as enumerated in subsection (6), to outweigh the
In each case in which the court imposes the death
sentence, the determination of the court shall be supported by
specific written findings of fact based upon the circumstances in
sub sections (5) and (6) and upon the records of the trial and the
sentencing proceedings. If the court does not make the findings
requiring the death sentence, the court shall impose sentence of
life imprisonment in accordance with s. 775.082.
(4) Review of judgment and sentence. The judgment
of conviction and sentence of death shall be subject to automatic
review by the Supreme Court of Florida within sixty (60) days after
certification by the sentencing court of the entire record, unless
the time is extended for an additional period not to exceed thirty
(30) days by the Supreme Court for good cause shown. Such review by
the Supreme Court shall have priority over all other cases and shall
be heard in accordance with rules promulgated by the Supreme Court.
(5) Aggravating circumstances. Aggravating
circumstances shall be limited to the following:
(a) The capital felony was committed by a person
under sentence of imprisonment.
(b) The defendant was previously convicted of
another capital felony or of a felony involving the use or threat of
violence to the person.
(c) The defendant knowingly created a great risk
of death to many persons.
(d) The capital felony was committed while the
defendant was engaged, or was an accomplice, in the commission of,
or an attempt to commit, or flight after committing or attempting to
commit, any robbery, rape, arson, burglary, kidnapping, or aircraft
piracy or the unlawful throwing, placing, or discharging of a
destructive device or bomb.
(e) The capital felony was committed for the
purpose of avoiding or preventing a lawful arrest or effecting an
escape from custody.
(f) The capital felony was committed for
(g) The capital felony was committed to disrupt
or hinder the lawful exercise of any governmental function or the
enforcement of laws.
(h) The capital felony was especially heinous,
atrocious, or cruel.
(6) Mitigating circumstances. Mitigating
circumstances shall be the following:
(a) The defendant has no significant history of
prior criminal activity.
(b) The capital felony was committed while the
defendant was under the influence of extreme mental or emotional
(c) The victim was a participant in the
defendant's conduct or consented to the act.
(d) The defendant was an accomplice in the
capital felony committed by another person and his participation was
(e) The defendant acted under extreme duress or
under the substantial domination of another person.
(f) The capacity of the defendant to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired.
(g) The age of the defendant at the time of the
John Arthur Spenkelink