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 washed,

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 Orleans.

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 supplied.)

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.

The California 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'.

Additionally, although 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.

Furthermore, Appellant 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.

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 room.

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 corpus relief.

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 aggravating circumstances.

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 pecuniary gain.

(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 disturbance.

(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 relatively minor.

(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 crime.

John Arthur Spenkelink