IN THE SUPREME COURT OF FLORIDA

OEC I S
THEODORE ROBERT B U N D Y ,
Appe I Iant ,
vs

Appeal No. 59,128

Capital Case Appeal
Ninth Judicial Circuit of Florida

STATE OF FLORIDA,
Appellee.

APPELLANT'S M A I N BRIEF

r "
./

J. VICTOR A F R I C A N 0
Attorney for Appellant
P, 0.Box 1450
Live Oak, Florida 32060

(904) 362-6930
l'

V''

TABLE OF CONTENTS

iv

T A B L E OF CITATIONS

STATEMENT OF THE CASE

STATEMENT OF THE FACTS
A.

The Disappearance

B.

The Search

C.

The Arrest

D.

The Investigation

E.

1.

Collateral Crimes

2.

The Interrogation

3.

The Connection

4.

The Van

5.

The l d e n t i f ications

P r e t r i a l Motions
1.

Hypnosis

17

2.

Fibers and Shoe Tracks

26

3.

Change of Venue o r i n the Alternative,

Abatement o f Prosecution

28

L i m i t a t i o n o f Death Q u a l i f i c a t i o n o f t h e Jury

29

1.

M o t i o n f o r Change o f Venue o r i n t h e
Alternative t o Abate Prosecution

29

2.

Voir Dire

30

3.

Flight

32

4.

View

32

4.
F.

G.

11

Trial

Post T r i a l
1.

Penalty Phase

34

2.

Sentencing

36

ARGUMENT
I.

The T r i a l Court Erred in Denying the Defendant's

Several Motions t o Suppress the Testimony of
certain witnesses whose recall had been a f f e c t e d
or altered by hypnosis
A.

B.

11.

37

Anderson's testimony should havve been

suppressed on the basis t h a t hypnosis
contaminated his testimony and made
his testimony totally unreliable

40

The T r i a l Court Erred in Denying the Motion

to L i m i t Death Qualification of Jury; allowing such qualifications; and excusing f o r cause
those jurors opposed to the death penalty,
notwithstanding their a b i l i t y t o vote f o r g u i l t
o r innocence

A.

The Witherspoon 8ule must be considered

in light o f c r i t i c a l differences in sentencing procedures between Illinois and Florida

51

Florida has no significant interest in

excluding f r o m capital juries venire
persons who would not v o t e f o r the
death penalty

53

Florida is the exception t o national

practice in capital jury sentencing

54

Defendant was denied a representative

cross-section o f the community on his
cap it a I ju ry

56

The T r i a l Court Erred in Denying Defendant's

Motion f o r Change of Venue or Abatement o f
Prosecution

60

B.

C.

D.

I It.

The p r e t r i a l identification procedures

utilized by the state on the witness,
C . L. Anderson, in his identification o f
the Leach g i r l , Bundy and the alleged
"abduct ion" w e re inhe rent Iy suggestive
and a violation of due process

I V . The Court Erred in N o t Conducting a Frye Test

on i t s own motion when confronted w i t h the
Fiber and Shoe Track evidence testimony

72

V. The T r i a l Court Erred in Denying Defendant's

Motion f o r a View

75

ii

VY,

MI.

The T r i a l Court Erred in Denying Defendant's Motion

in Limine t o Exclude Evidence of F l i g h t and the
subsequent Jury instruction an F l i g h t based upon t h a t
ev idence
A.

The Evidence o f F l i g h t

79

B.

The Instruction of F l i g h t

82

The T r i a l Court Erred in Sentencing the Defendant

to Death
A.

B.

C.

D.

E.

The T r i a l Court did not establish t h a t the

c r i m e was especially heinous, atrocious, cruel

a4

The T r i a l Court erred in finding t h a t Death

occurred as a result of homicidal injury
t o the neck region o f the v i c t i m

87

The f i r s t t w o findings of aggravating c i r cumstances in the t r i a l c o u r t ' s sentence

involved the same convicted a c t and this
constituted an impermissible doubling of
aggravating circumstances

88

The T r i a l Court Erred in A d m i t t i n g the

Testimony o f Michael James Fisher t o
prove an aggravating f a c t o r in the penalty
phase

90

The T r i a l Court Erred in Denying the

Defendant's Motion t o Enter L i f e Sentence
on verdict and t o prohibit penalty phase
of trial

91

CONCLUSION

93

...
Ill

TABLE OF CITATIONS

Alford v. State, 307 S o 2 d 433 (Fla. 1975)

C e r t . Den. 96 S.Ct. 3227, 428 U S . 912, 49 L.Ed.2d 1221
Reh. Den. 97 S.Ct. 191, 429 U.S. 873, So.L.Ed.2d 155

85

Andrews v. State, 21 Fla. 598 ( 1885)

65

Apodaca v. Oregon, 406 U.S. 404 (1972)

62

Armstrong v, State, 399 S o 2 d 953 (Fla. 1981)

89

Ballard v. United States, 329 U.S. 187 (1946)

56, 57, 56

Barnes v, State, 348 S o 2 d 599 (Fla. 4 t h DCA, 1977)

83

Batey v, State, 355 S o 2 d 1271 (Fla. 1st DCA, 1978)

Beck v. Washington, 369 U.S. 541 (1962)

62

Commonwealth v. Blanding, 20 Mass. ( 3 Pick) 304 (1825)

67

Commonwealth v. Nazarovitch, 436 A 2 d 170 (Pa. 1981)

79, 80, 81

47, 48

Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA, 1968)

49

Dixon v. State, 143 Fla. 277, 196 So. 604 (1940)

75

Duncan v . Louisiana, 391 U.S.

145 (1968)

62
53, 55, 56, 57, 59

Duren v, Missouri, 439 U.S. 357 (1979)

Estes v. Texas, 381 U.S. 532 (1965)

67

Francois v. State, 407 So.2d 885 (Fla. 1982)

89

Freedman v. Maryland, 380 U S . 51 (1965)

68

Frye v. United States, 293 F. 1013

(D.C. Cir. 1923)

4 2 , 44, 4 5 , 46, 4 8 , 49, 50, 72, 73, 74

Fulford v. State, 113 S o 2 d 572 (Fla. 1959)

91

Furman v, Georgia, 408 U S . 349 (1972)

54

Gafford v. State, 387 S o 2 d 333 (Fla. 1980)

89

Harding v. State, 230 A 2 d 302 (Md. 1968)

43

Hargrett v. State, 255 So.2d 298 (Fla. 3 r d DCA, 1971)

Harvard v. State, 375 S o 2 d 833 (Fla. 1977)

iv

79, 80, 81, 83

89

66

Holt v, State, 13 Mich. 224

lrvin v. Dowd, 366 U. S . 717 (1961)

62, 63, 67

Janko v- U. S., 366 U.S. 716 (1961)

67

Johnson v, Reynolds, 1929, 97 Fla. 591, 121 So. 793

66

Kaminski v. State, 63 S o 2 d 339 (Fla. 1953)

49

Lamb v, State, 107 So. 530 (Fla. 1925)

65

Maggard v. State, 399 S o 2 d 973 (Fla. 1981)

89

Marshall v. U, S., 360

U S . 310 (1959)

67

Murphy v . Florida, 421 U.S. 794, 803 (1975)

62

Near i . Minnesota, 283 U.S. 697 (1931)

67, 68

Nebraska Press Association v. Stuart, 96 S.Ct.

2791 (1976)
67, 68, 69, 70, 71

Neil v. Biggers, 409 U.S. 188, 34 L.Ed2d 401, 93 S.Ct. (1972)

3 7 , 38, 39

Olive v. State, 15 So. 925 (Fla. 1894)

65

Palmes v. State, 397 S o 2 d 648 (Fla. 1980)

89

Patterson v. Colorado, 205 U.S. 454 (1907)

67

People v. Lewis, (County C o u r t , 1980) 103 Misc. 2d 881, 427 N.Y.S.

2d 177
49

People v. McDowelI (Co. Court, 1980) 103 Misc. 2d 831, 427, N.Y.S.

2d 181
49

People v. Shirley, 31 Cat. 26 18, 641 P 2 d 775 (1982)

48, 49

Peters v - K i f f , 407 U.S. 493 (1972)

51, 58

Proffitt v. Florida, 428 US. 242 (1976)

52

Proffitt v. State, 315 S o 2 d 461 (Fla. 1975)

a f f ' d per curiarn 428 U S . 242 (1976)

83

Provence v. State, 377 S02d 783 (Fla. 1976)

89

Quaglino v . California, 58 L.Ed. 26. 189 (1978)

rehearing denied 58 L.Ed2d. 670 (1978)

25

Quince v. State, 414 S02d 185 (Fla. 1982)

89

Rankin v, State, 143 So2d 193 (Fla. 1962)

75

Republica v. Oswald, 1 Dall. 319 (Penn. 1788)

67

Rideau v, Louisiana, 373 U.S. 723 (1963)

63

Sheppard v. Maxwell, 384 U.S. 333 (1966)

63, 64

Singer v. State, 109 S o 3 d 7 (Fla. 1959)

65

Sireci v. State, 399 So2d 964 (Fla. 1981)

a9

Southeastern Promotions Ltd. v. Conrad, 420 U S . 546 (1975)

68

State v. Anderson, 296 N.W2d 440 (1980)

55

State v. Clark, 616 P.2d 888 (1980)

55

State ex, rel. Collins v. Superior Court and Silva, 132 A r k . 180,
644 P 2 d 1266 (1982)

45

State v. Creech, 589 P 2 d 114 (1979)

55

State v. Dixon, 283 S o 2 d 1 (Fla. 1973)

84

State v. Hallman, 575 P 2 d 55 (1978)

55

State v. Hurd, 86 N.J. 525, 432 A 2 d 86 (1981)

45, 4 6 , 47, 48, 49, 50, 74

42, 43, 44, 45, 48

State v. Mack, 294 N.W. 2d 764(1980)

43, 44, 45, 48

State v. Mena, 128 A r k . 226, 624 P 2 d 1247 (1981)

State v, Ramiret, 569 P.2d 201 (1977)

55

Stroble v. California, 343 U.S. 181 (1952)

62

56, 57, 58, 59

Taylor v. Louisiana, 419 U.S. 522 (1975)

Tedder v. State, 322 So2d, 908 (Fla. 1975)

84

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946)

56

Tompkins v. State, 386 S o 2 d 597 ( F l a . 5th DCA, 1979)

75

United States v. Myers, 550 F 2 d 1036, (5th Cir.,

(1977)

82, 83

Vaught v, State, 410 So2d 147 (Fla. 1982)

89

Villagelieu v. State, 347 S o 2 d 44.5 (Fla. 1982)

83

vi

Walsingham v. State, 61 Fla. 67, 56 So. 195 (1911)

65

Welty v. State, 402 S o 2 d 1159 (Fla. 1982)

89

Williams v. State, 268 -So.2d 566 (Fla. 3rd DCA, 1972)

83

Wisconsin v. Joseph R. White, (Unreported) Mar. 27, 1979,

Cir. Ct., Branch 10, Case #J-3665
Witherspoon v. Illinois, 391 U.S. 510 (1968)

25, 41, 49

51, 52, 53, 55, 56

51

W i t t v. State, 342 S o 2 d 497 (1976)

STATUTES
15821.141(5)(d)(f),

89

Florida Statutes

28

B910D3, Florida Statutes

B 913.13,

53, 54

Florida Statutes

B 921 -141, Florida Statutes (Supp. 1976-77)

8 921.141(5)(a)(b),

52, 85,

aa
90

Florida Statwtes

OTHER AUTHORITIES
Flarida Constitution :
Article I, Section 9
Article I , Section 16

39, 60

Orne, Or. Martin T., Affidavit of

41, 42

60

United States Constitution :

39, 60
52, 59, 60, 62
52, 59, 60, 62

Amendment Five
Amendment Six
Amendment Fourteen

vii

STATEMENT OF THE CASE

This is an Appeal f r o m the conviction and sentence entered i n the case
o f State of F l o r i d a vs. Theodore Robert Bundy, i n the C i r c u i t C o u r t o f the

Ninth Judicial C i r c u i t , i n and f o r Orange County, F l o r i d a , C r i m i n a l Justice

Division , lndic t m e n t No. C r79-4650.

The Defendant was convicted in a t w o ( 2 ) Count I n d i c t m e n t o f K i d napping and F i r s t Degree Murder.

He was sentenced t o life imprisonment

and t o death, respectively.

The case originally arose i n t h e C i r c u i t Court o f t h e T h i r d Judicial C i r c u i t i n and f o r Columbia County, F l o r i d a , Case No. 78-169-CF.

On October

30, 1979, venue f o r t h e t r i a l was changed t o t h e C i r c u i t Court o f t h e T h i r d

Judicial C i r c u i t , i n and f o r Suwannee County, Florida, Case No. 79-149-CF
( 8 . 14645).

On November 19, 1979, venue f o r t r i a l was again changed f r o m

Suwannee County, Florida, t o Orange County, F l o r i d a ( R . 14687), and assigned

the above r e f e r r e d t o case number.
Judgment and Sentence were entered on February 1 2 , 1980 ( R . 14916).
On February 22, 1980, the Defendant f i l e d his M o t i o n f o r New T r i a l , preserving f o r appellate review the points raised herein ( R . 14914).

On M a r c h 16,

1980, the Court denied Defendant's M o t i o n f o r New T r i a l ( R . 14965).

N o t i c e o f Appeal was t i m e l y f i l e d ( R . 14970), and t h e State t i m e l y
f i l e d i t s N o t i c e o f Cross Appeal ( R . 14974.).
In this B r i e f , the Appellant, Theodore Robert Bundy, w i l l b e r e f e r r e d
t o as e i t h e r the Defendant or Bundy.

The Appellee, the State o f Florida,

w i l l b e r e f e r r e d t o as the State.
The f o l l o w i n g symbols w i l l be used:

- For RECORD O N APPEAL

RP - F o r RECORD O N APPEAL, P E N A L T Y PHASE.

STATEMENT OF THE FACTS

A.

On February 9, 1978,
Lake C i t y Junior High Schoo

THE DISAPPEARANCE

limberly Diane Leach, age 12, was driven to thl

located on Duval Street (U. S. Highway 901,

Lake C i t y , Columbia County, Florida, by her mother, Freda Leach, a t approx

mately 8:OO a.m.

(R. 3865)

It was a cold, rainy morning (R. 3989).

A f t e r chatting w i t h some school friends, the Leach g i r l went t o her

homeroom class a t approx mately 8:30 a.m. (R. 3899)
was located in the Centra Building ( R . 3957).
John Lawrence Bishop.

Her homeroom class

Her homeroom teacher was

A f t e r approximately f i f t e e n minutes of attendance,

the school bell rang for the f i r s t period class, which f o r the Leach g i r l was
Physical Education.

Because o f the inclement weather, students assembled in

the auditorium t o watch a movie, as opposed t o going outside t o play ( R . 3944).

For the Leach g i r l t o get f r o m her homeroom classroom in the Central
Building t o the auditorium, she had t o e x i t the rear o f the school building,
go outside, walk around some portable buildings, and across the basketball

courts ( R . 39101, a t o t a l distance of approximately 247 f e e t , t o enter the

auditorium ( R . 6432). A f t e r she had departed the classroom, Mr. Bishop
noticed t h a t she had l e f t her purse behind.

He then dispatched a classmate,

Tandy Bonner, t o the auditorium t o bring Leach back t o her homeroom classroom t o retrieve her purse (R. 3919).
wit

Leach did, in f a c t , leave the auditorium

the permission of her Physical Education teacher, Mrs. Juanita Caldwell,

and returned t o Mr. Bishop's classroom and got her purse ( R . 3943).
When she exited her original homeroom classroom t o return t o the
aud torium

it was approximately 9:20 a.m. t o 9:25 a.m.

(R. 13878)

This was

the last t i m e t h a t anyone could positively identify having seen Kimberly Diane
Leach u n t i l her remains were found in a t i n hog shed located i n Suwannee
County, Florida, and approximately 35 t o 40 miles west o f the Lake C i t y
Junior High School (R. 4236).
There was no report of a "positive" i d e n t i f i c a t i o n o f having seen the
Leach g i r l a f t e r her disappearance u n t i l five months, three weeks and t w o
days later ( R . 4074).
On the day o f her disappearance, as t e s t i f i e d t o by her mother, the
Leach g i r l was wearing Hush Puppies shoes, white c o t t o n socks, blue denim
jeans, a blue football type jersey pullover shirt w i t h the number 83 emblazoned
i n red on the f r o n t , a three-quarter length f u r - t r i m m e d coat, and she was
carrying a denim purse ( R . 3877).

B, THE SEARCH
A t approximately 2:30 p.m. t h a t day, the Leach g i r l ' s parents were
contacted by the school o f f i c i a l s and informed t h a t she had n o t attended her
second period and subsequent class periods ( R . 3875,, 3882).

A search o f the school grounds and the school buildings was made and
she was not found.

The police were called i n and began t h e i r investigation

(R. 3883).
On February 11, 1978, a p i c t u r e of Kimberly Diane Leach, her description, and facts o f her disappearance appeared in the local and state news
media, b o t h press and television (R. 5773).

Over the course of the next sev-

eral months, a search i n e x t e n t and intensity virtually unheard of in the

annals of Florida history was conducted t o locate her ( R . 14522-14529, 4257).
A task force totaling some one hundred members, a t any one t i m e , was
amassed and virtually every inch o f ground in Columbia County, and surrounding

counties, was covered by the search p a r t y ( R . 4238-4239).

The search was commanded by a group of top-ranking law enforcement
officers, who were assisted in t h e i r e f f o r t s by Assistant State A t t o r n e y ,
George Robert Dekle, o f the Third Judicial C i r c u i t State A t t o r n e y ' s Office.
(R. 4255, 4258)

On A p r i l 7, 1978, ( R . 4231) while p a r t o f the search p a r t y searched a

wooded area near the Suwannee River in Suwannee County, Florida, one o f the
members o f the search p a r t y , Florida Highway Patrol Trooper Kenneth W.
Robinson stumbled upon a t i n hog shed.

Upon bending down and peering

therein, he saw remains o f a human body and a p i l e o f clothes (R. 4234-4235).

Trooper Robinson then summoned the other members o f the search p a r t y

(R. 4235).

The area was cordoned o f f t o a w a i t the arrival of the State Medi-

cal Examiner and Anthropologist, the Florida Department of Law Enforcement

Crime Lab Team, members of the State A t t o r n e y ' s O f f i c e , and the Investigators i n charge o f the disappearance o f K i m b e r l y Diane Leach ( R . 4250).
During the course o f the search and investigation, untold numbers o f
persons were questioned w i t h regard t o the disappearance.

Numerous reports

o f sightings o f the Leach g i r l were made t o the task force, b u t none proved
f r u i t f u l (R. 5775).

Requests f o r i n f o r m a t i o n were made almost daily over the

radio and television stations.

Almost daily pleas were made in the Press for

i n f o r m a t i o n f r o m anyone who m i g h t have any knowledge concerning the disappearance of Kimberly Diane Leach, and f o r any such persons t o please come
forward.

Fliers containing her p i c t u r e , her name, her description, the descrip-

t i o n o f her clothing, were printed and posted i n conspicuous places a l l over

Columbia County, Florida, and i n particular, a t the Police Department located
i n the same building w i t h the Lake C i t y F i r e Department ( R . 4142).

C, THE ARREST
On February 15, 1978, a t approximately 1:30 a.m.,

Police O f f i c e r David

Lee o f the Pensacola Police Department, observed an orange colored Volkswagen on Cervantes Street, Pensacola, Florida.

It aroused his suspicion ( R . 5152).

A f t e r following the Volkswagen for several blocks, the o f f i c e r turned on his

blue lights and pulled the vehicle over (R. 5154).

He ran a radio tag check,

which came back showing car o r tag missing ( R . 5154).

The o f f i c e r ordered

the driver out o f the car and ordered h i m t o lie prone on the ground w i t h his
hands out, so t h a t the o f f i c e r could "inspect the Volkswagen vehicle f o r other
occupants" ( R . 5155).
The o f f i c e r had his p i s t o l drawn while he attempted t o handcuff the
A scuffle ensued, w i t h the driver

driver's hands behind his back (R. 5155).

running away.

The o f f i c e r f i r e d a t the fleeing driver.

The driver f e l l down

and was eventually completely handcuffed and taken t o the o f f i c e r ' s p a t r o l

car ( R . 5156-5157).

He was read his Miranda rights and identified himself to

the o f f i c e r as one Kenneth Misner ( R . 5173-5174).

O f f i c e r Lee testified a t the Defendant's t r i a l t h a t the driver said he
wished he had k i l l e d him and, "If I run a t the jail, w i l l you shoot me then?"

(R. 5173)
0, THE INVESTIGATION
1.

Collateral Crimes

On January 15, 1978, the City of Tallahassee, Florida, awoke t o the news
t h a t t w o Florida State University coeds had been murdered and t w o others
beaten a t the Chi Omega Sorority House.

In addition, a f i f t h female had been

beaten in her apartment t w o miles f r o m the Chi Omega Sorority House.

Bundy

was subsequently indicted, t r i e d , convicted and sentenced t o death f o r these

crimes.

His appeal f r o m t h a t judgment and sentence is now pending before

this Court, being Case No. 57,772.

It is respectfully requested t h a t this Court

take judicial notice o f the record on appeal in t h a t case f o r the purposes of

this appeal.

2,

The Interrogation

Over the next several days, "Misner" was extensively interviewed by

O f f i c e r Norman Chapman o f the Pensacola Police Department, O f f i c e r Donald
Patchen o f the Tallahassee Police Department, and Investigator Steven Bodiford
of the Leon County S h e r i f f ' s O f f i c e (R. 10675-10736).

Although the State

would l a t e r abandon any a t t e m p t t o use, a t t r i a l , any of the statements

allegedly made t o them (R. 10737-10738), many of such alleged statements
appeared i n the media and were used t o establish probable cause in the
S t a t e ' s obtaining f u t u r e search warrants (R. 13038).
During this t i m e , "Misner" revealed his true identity, t o - w i t :
Robert Bundy.

Theodore

I t was learned t h a t Bundy was wanted f a r escape and homi-

cide in Colorado, and t h a t he was on the Federal Bureau o f Investigation's

ten most wanted list.
Shortly thereafter, i t was reported t h a t Bundy was a I1suspect" i n t h i r t y six sex-related murders i n the northwest United States ( R . 14524).
3.

The Connection

During the aforementioned interviews and thereafter, Bundy became the

p r i m e suspect in connection w i t h the Chi Omega crimes (R. 14523).

I t was

learned t h a t the orange Volkswagen which Bundy was driving on the night o f
his arrest was stolen f r o m Ricky Garziniti i n Tallahassee, Florida, on February

12, 1978 ( R . 5143).

I t was also learned t h a t Bundy had been living a t the Oaks Apartments

i n Tallahassee f r o m January 7, 1978, u n t i l February, 1978, under the assumed

name of Chris Hagan (R. 4562-4563).

Other residents of the Oaks were

questioned and t h e i r description and impressions of "Chris Hagan" revealed

nothing of any evidential import.
Subsequent t o Bundy ' s arrest, Homicide Detective Lester Parmenter of
the Jacksonville Police Department contacted Steve Bodiford o f the Leon County
S h e r i f f ' s O f f i c e ( R . 502.41, and t o l d h i m t h a t his fourteen year old daughter,
Leslie, had had an encounter w i t h a man i n a K - M a r t shopping center parking l o t on February 8, 1978.

She had been waiting f o r her brother, Danny,

t o pick her up a f t e r school when a man driving a white van pulled up t o her,
got out of the van and engaged her in conversation (R. 4934).

The man was

wearing dark horn-rimmed glasses, a blue Navy-type u n i f o r m jacket w i t h a

badge t h a t said " F i r e Department, Richard Burton", on his chest ( R . 4933).
Almost immediately thereafter, Danny pulled up and as he started t o
get out of his pickup t r u c k , the man g o t back into the van and drove away.
Danny and Leslie attempted t o follow him, b u t lost h i m i n t r a f f i c e .

They

were able t o g e t his license tag number, which was 13D11300, Florida.
A t Bodiford's suggestion, Parmenter agreed t o have his children hypnotized t o help Bodiford on a case he was working ( R . 5026).

On February 14,

1978, Parmenter brought his t w o children t o the Jacksonville Police Department

t o be hypnotized by Lieutenant M i c k l e r o f t h a t department ( R . 4961).

Each

child was hypnotized separately, b u t each procedure was induced i n the presence o f t h e i r father and his riding partner, Steve Richardson, as well as
O f f i c e r D. K . Bryan ( R . 4962).

A f t e r the hypnotic sessions, each child was

asked t o separately make a police composite of the man they saw on February 8 , 1978 ( R . 4939, 4974).

Both composites were introduced into evidence

a t the t r i a l as State Exhibit Nos. 37 and 38 (R. 5040, 5042).

Several days l a t e r , both of the Parmenter children were interviewed by

Investigator W. D. Phillips of the Leon County S h e r i f f ' s Department.

They

were each shown six photographs o f individuals and each picked out the p i c t u r e
o f Bundy as the man they confronted on February 8, 1978.

The six photographs

were introduced into evidence as State Composite E x h i b i t No. 36 ( R . 4943).

On January 13, 1978, Randall Clayton Ragans reported his license tag
had been stolen f r o m his residence a t 1002 St. Augustine Street, Tallahassee,
Florida.

The stolen license tag bore the number 13D11300 ( R . 4641).

On February 11, 1978, a t approximately 1:47 a.m.,

Deputy K e i t h Dawes

o f the Leon County S h e r i f f ' s O f f i c e was patroling, in an unmarked car, an

area of Tallahassee, one block away f r o m the Oaks Apartments (R. 4643).
He observed a man, whom he identified a t the t r i a l as Bundy, locking o r unlocking a car door ( R . 4644).

As he approached the man, he asked i f he had

any identification, t o which the man replied, 'lNol'.

Dawes shined his flash-

light into the car the man had been locking o r unlocking, and observed a
license t a g i n the floor board ( R . 4645). The man opened the car door and
I t bore the number 13D11300 ( R . 4645-4646).

handed Dawes the tag.

While

Dawes went t o his p a t r o l u n i t t o run a registration check on the tag, the

suspect fled ( R . 4647).

The tag was introduced into evidence a t the t r i a l as

State Exhibit No. 26 ( R . 4649).

4,

The Van

A t the t r i a l , Richard Lee Shook, the Pudio-visual

M a t e r i a l Manager a t

' t h e Florida State University Media Center, t e s t i f i e d t h a t on January 12, 1978,

the keys t o a white Dodge van, No. 343, owned by the Media Center, dis'

appeared ( R . 4674-4675).
disappeared ( R . 4679).

In the early p a r t o f February, 1978, the van itself

The van was n o t seen again u n t i l February 13, 1978,

when Chris Cochran, a Florida State Univers ty Media Center employee,

observed it parked approximately t w o blocks f r o m t h e Florida State University
Student Union while he was on his way home f r o m work ( R . 4706).

Cochran

f u r t h e r t e s t i f i e d t h a t when he passed the same spot a t approximately 7:45 a.m.

the same morning, he did n o t see the van ( R . 4714).

All of the witnesses who

t e s t i f i e d concerning the van stated t h a t numerous people connected w i t h the

Media Center had access t o and used the van, and t h a t the people wore a
wide variety o f clothing, including denim pants, c o t t o n socks, tennis shoes,
and socks of varying colors ( R . 4660-4714).
Freddie McGee, the Media Center employee who was the principal d r i ver o f the van, t e s t i f i e d t h a t approximately a year t o a year and a half prior
t o February, 1978, the rear of the van had been carpeted w i t h some discarded
carpet ( R. 4752).
The van was taken i n t o custody by O f f i c e r William Charles Wingate o f
the Florida State University Police Department, who took i t t o the Leon
County S h e r i f f ' s Department ( R . 4752).
Shortly t h e r e a f t e r , a c r i m e lab u n i t f r o m the Florida Department of
Law Enforcement descended upon the van t o process it f o r physical evidence.
Patricia Lasko t e s t i f i e d t h a t she "swept" the van t o c o l l e c t and maintain
trace debris f o r micro-analysis ( R . 4869).

In the debris she found hair sam-

ples and an orange p r i c e tag approximately one and one-half inches i n size

( R . 4870).

She retained the hair samples f o r further study and turned the

rest o f the sweepings over t o other Examiners f o r f u r t h e r investigation (R. 4875).

Ms. Lasko further t e s t i f i e d t h a t she processed c e r t a i n items of c l o t h ing belonging t o the Leach g i r l , as well as clothes belonging t o Bundy, f o r
trace evidence and turned these trace materials over t o Florida Department
of Law Enforcement Microanalyst, Mary Lynn Henson, f o r analysis ( R . 5328-5336

Ms. Lasko was also called as a defense witness (R. 6070).

She t e s t i f i e d t h a t

she did a microanalysis of a l l the hair samples found i n the van, as well as
those found a t the c r i m e scene ( R . 6073-6074).

Based upon the standard she

had of Bundy's hair, she could make no comparisons between Bundy's hair and
the hair samples found a t either the c r i m e scene or i n the van ( R . 6079).

Ms. Lasko also t e s t i f i e d t h a t her reading of the general information on the

viology o f the hair and the g r o w t h of hair of an individual, on the average,
can lose as many as a hundred hairs a day f r o m a l l over his or her body

( R . 6077).
Douglas Barrow, Florida Department o f Law Enforcement L a t e n t Finger p r i n t Specialist, testified t h a t he processed the van f o r latent fingerprints and
was able t o identify fifty-seven l a t e n t fingerprints, nineteen latent palmprints,
and eleven latent impressions, either finger or palm (R. 5077).

None o f the

eighty-seven p r i n t s were, in Barrow's opinion, of value ( R . 5078).

He com-

pared these p r i n t s w i t h one hundred and twenty-six known p r i n t s o f other

individuals and was able t o match five w i t h the known p r i n t s of five Media
Center employees ( R . 5080) , b u t specifically excluded Bundy f r o m having made
any o f the p r i n t s he was able t o raise ( R . 5080).

He was unable t o make a

complete comparison w i t h the p r i n t s o f the Leach g i r l because he was unable

t o develop an accurate sample of her p r i n t s ( R . 5081).

He f u r t h e r t e s t i f i e d

t h a t a f t e r comparing the p r i n t s in the van w i t h the one hundred and t w e n t y six known prints, he s t i l l had remaining an unidentified f i f t y - o n e fingerprints,
fourteen palmprints, and ten impressions which could either be a finger o r a
p a l m (2.5113).

In addition, he could n o t compare Bundy's p r i n t s w i t h the

p r i n t s on any other i t e m of physical evidence relevant t o this case (R. 50855088 8, 5114-5116).
The defense also called Dale Nute, another Florida Department of Law

10

Enforcement Crime Laboratory Analyst, who t e s t i f i e d t h a t the soil samples

taken f r o m the van were d i f f e r e n t f r o m the soil samples taken f r o m the c r i m e
scene ( R . 6090).
Richard L. Stephens, Forensic Serologist and supervisor of the Serology
Section of the Florida Department o f Law Enforcement Tallahassee Regional
Crime Laboratory, was called by the State and t e s t i f i e d t h a t he found blood
stains i n t w o areas o f the carpet in the van ( R . 5367).

He t e s t i f i e d t h a t due

t o the deterioration of the blood stains, he could only conclude t h a t the blood
was o f the Group B antigen.

A l l other tests were inconclusive (R. 5374).

The Leach g i r l had Group B blood, as does over f i f t e e n percent o f the e n t i r e

human population ( R . 5376-5377).

However, he t e s t i f i e d t h a t he could n o t

state how long t h e blood stains had been i n the carpet (R. 5431).
Mary L y n n Henson, the S t a t e ' s expert in shoe track identification, and
f i b e r analysis, t e s t i f i e d t o her examination of the shoe tracks and fibers, and
ventured opinions relative thereto.

Her testimony w i l l be discussed in greater

detai I below.

5. The Identifications
Through the testimony of t w o Holiday Inn Employees and the State's
handwriting expert, John McCarthy , the State produced evidence t h a t Bundy
had registered a t the Holiday Inn, Lake C i t y , Florida, on 'February 8, 1978,
under the name o f R o l f M i l l e r ( R . 4539 &4549, 4571-4589).

As stated above,

Danny and Leslie Parmenter w e r e able t o i d e n t i f y Bundy as the driver o f a

w h t i e van i n Jacksonville on February 8, 1978.
However, p r i o r t o Bundy's Indictment on July 21, 1978 ( R . 14023-14024),
only one witness "placed"

Bundy and the white van a t the scene o f the Lake

C i t y Junior High School on the morning o f February 9, 1978.

Clinch Edenfield w a s a 71 year old school crossing guard a t the Lake

City Junior High School on February 9, 1978 ( R . 3987).
f o r six or seven years (R. 3987)

He had held t h a t post

Edenfield identified Bundy as the man he

saw driving a white van in f r o n t of the Junior High School around 8:45 a.m.

( R . 3991)

'

He also t e s t i f i e d t h a t he might have seen the van come by once

or t w i c e before on t h a t same morning (R. 3992).

He t e s t i f i e d t h a t he saw

Bundy on television a week or so later and recognized h i m as the man who

came through the school zone ( R . 4041).

However, Edenfield did n o t report

this t o the police, nor was he even questioned u n t i l a number o f weeks later
by Special Agents C. Dalton Bray and Joe Uebelner of the Florida Department

of Law Enforcement ( R . 8347).

Although Edenfield was c e r t a i n the person he saw on television was the
man he saw driving the van, he could n o t p i c k Bundy's p i c t u r e out of a photo
lineup (R. 8348)

Having seen Bundy's p i c t u r e on television, "a l o t since",

he was then able t o identify h i m a t t r i a l (R. 4045).

Edenfield also "remem-

bered" t h a t the weather was good, the sun was shining, and i t wasn't raining,
t h a t i t was n o t cold and t h a t i t was in the summertime when he saw Bundy
driving past the Junior High School ( R . 4034-4035).

Finally, Edenfield stated

t h a t he had never before seen Defense Counsel Thompson, even though

Thompson had deposed Edenfield f o r over an hour on October II, 1979 (R.4046).
Although John McCarthy, the State's expert on questioned documents,
stated t h a t he could not t e s t i f y t h a t the Green A c r e ' s orange p r i c e tag
found i n the van ( R . 4871) came f r o m the Green A c r e ' s Sporting Goods Store
i n Jacksonville, Florida, (R. 4919), John Farhat, the owner of t h a t store, was
able t o take the stand and i d e n t i f y Bundy as the man who purchased a Buck
k n i f e w i t h t h a t p r i c e tag on it in early February, 1978 (R. 4881).
On cross-examination, Mr. Farhat described the man who bought the

12

k n i f e as having long, uncombed hair, facial hair " l i k e a d r i f t e r " ( R . 4885).

On a t least t w o occasions, Mr. Farhat had been shown a photo lineup w i t h
Bundy's pictures in them.

He was shown the same photo lineup as Clinch

Edenfield ( R . 6109) when he was interviewed by Special Agent M i l l e r Robert

Miley of the Florida Department of L a w Enforcement on A p r i l 24, 1978 ( R . 6108).
The photo lineup was introduced into evidence as Defense E x h i b i t No. 4 (R. 5664).
Mr. Farhat was n o t only unable t o p i c k out Bundy's p i c t u r e , b u t he speculated
t h a t another of the men depicted i n the spread looked most like the man who
came into his store and purchased a Buck k n i f e .

The man whose p i c t u r e he

identified was Timothy Dale Allen, who bears absolutely no resemblance t o

Bundy ( R . 6108).
Mr. Farhat t e s t i f i e d t h a t sometime a f t e r

he t e s t i f i e d before the Colurn-

bia County Grand Jury which indicted Bundy, he saw Bundy's p i c t u r e i n the
newspaper and recognized h i m as the man who bought the k n i f e ( R . 4898).
The newspaper photo was introduced as State Exhibit No, 31 ( R . 48971, and
bears l i t t l e resemblance t o a man w i t h "long, uncombed h a i r , facial hair like
a drifter".
Jacqueline

D. Moore

was called by the State ( R . 3949 & 4260).

She

stated t h a t on February 9, 1978, in the early afternoon she was driving east
on Highway 90 f r o m Live Oak, Florida, t o Lake C i t y , Florida, and observed a
white van coming toward her f r o m the opposite d i r e c t i o n ( R . 4260).
The van was weaving back and f o r t h into her lane of t r a f f i c and caused
her t o p u l l o f f the road and make the remark, "What in the world is he going t o do?" ( R . 3953)

She described the driver of the van and said she had

a mental p i c t u r e in her mind of the p r o f i l e of the person who endangered

her and her maid's l i f e t h a t day (R. 3957).

Notwithstanding the f a c t t h a t

she had seen Bundy's p i c t u r e on television and in the newspapers on numerous

13

occasions (R. 4279), was aware o f the intensive search f o r the missing Leach

g i r l (R. 42&1), and t h a t Bundy had been indicted f o r her kidnapping and
murder ( R . 4281), she never reported t o the police, for almost t w o years, t h a t
Bundy resembled the man driving the van ( R . 4281).

Y e t she was allowed t o

take the stand and t e s t i f y t h a t Bundy clearly resembled t h a t man (R. 4261).
On July 28, 1978, Clarence L. Anderson, an Emergency Medical Technician employed by the Lake City F i r s t Aid Rescue Department, w i t h the rank
o f Lieutenant, had his attention directed t o the television set a t the Lake

City F i r e Department ( R . 4082).

The p r o f i l e o f the person he saw on T.V.

just jumped out on h i m and bore a striking resemblance t o the man t h a t he

had seen a t the Junior High School w i t h the g i r l ( R . 4082).

He g o t permission

f r o m his Chief t o go t o the Lake C i t y Police Department ( R . 4083), which is

housed in the same building w i t h the F i r e Department.

Mr. Anderson m e t

there w i t h Larry Daugherty, Chief Investigator for the Lake City Police Department, and Assistant State Attorney, George R. Dekle.

He told them t h a t

the person on the newscast bore a striking resemblance t o the man t h a t he

had seen w i t h a g i r l t h a t looked like the Leach g i r l (R. 4083).

As soon as

Anderson told his story t o Dekle, Dekle asked h i m if he would undergo hypnosis t o "make his memory b e t t e r - to make things clear" ( R . 4083).

Short-

l y thereafter, Imogene Keene, a Social Worker a t the Lake C i t y Veteran's

Administration Hospital, hypnotized or attempted t o hypnotize, Anderson (R. 4085).
Copies o f the cassette tape o f t h a t hypnotic session were introduced a t the
t r i a l as Defense Exhibit No. 22.

A f t e r the Anderson-Keene hypnotic encounter,

it was suggested by Dekle t h a t Anderson be hypnotized again ( R . 4105).

On

July 31, 1979, Larry Daugherty went t o the F i r e Department and asked Anderson if he was ready t o be hypnotized again ( R . 4107).

Anderson was taken

t o the City Commission Room and this t i m e he was hypnotized by another

14

Social Worker f r o m the Veterans Administration Hospital, JohnnyJack Burnette

( 8 . 4112).

A cassette tape recording of this hypnotic encounter was intro-

duced i n t o evidence as Defense Exhibit No. 23.

A t some point in t i m e between the t w o hypnotic sessions, Anderson was
summoned into the F i r e Chief's O f f i c e where Dekle, Daugherty and others
were going over Anderson's work records ( R . 4165).

Anderson was made

aware t h a t they were trying t o determine if he had been working on February

9, 1978, because i f he had been, then he would have had t o be a t the F i r e

Station and would have been mistaken as t o whom and what he could have
seen on t h a t date ( R . 4165).

This was the f i r s t t i m e the date, February 9,

1978, became significant t o h i m (R. 4167).

F o r the five months, three weeks and t w o days a f t e r the disappearance
o f the Leach g i r l u n t i l he reported the incident t o Dekle and Daugherty,

Anderson was aware of the intense activety involved in the search f o r the
missing g i r l , the reports on T. V., radio and in the newspapers; he had seen
her p i c t u r e in the paper and on T.V. ( R . 4142); was aware of Bundy's arrest
and t h a t he was a prime suspect ( R . 4138-4139), and had seen Bundy's picture
in the paper and on T.V. (R. 4143)

Y e t , he did not reveal what he had seen

because
d i d n ' t want t o really be involved. I wasn't absolutely sure t h a t I saw anything o f , you know, any
importance. I wasn't sure of any dates'. I just
knew t h a t I saw a g i r l t h a t looked like the Leach
g i r l and was not sure exactly t h a t I saw her, and
mainly just n o t wanting t o be involved, the biggest
reason I d i d n ' t come forward."
( R . 4074)
Ill

However, a f t e r having his memory jogged by seeing Bundy's p r o f i l e on

television on July 28, 1978, a f t e r having been told t o think about i t by Dekle
and Daugherty ( R . 5087), a f t e r having talked it over w i t h his w i f e ( R . 40871,
and a f t e r having been hypnotized t w i c e , Anderson became the State's one and

15

only eyewitness t o the abduction of Kimberly Diane Leach.

He testified t h a t he was working overtime a t the F i r e Station on
February 8, 1978, and slept there t h a t night (R. 4057).

A t some t i m e be-

tween 9:00 o r 9:15 the next morning, he l e f t the F i r e Station t o go home,

shower, shave and change clothes ( R . 4058)

He traveled west on Duval

Street (U. S. Highway go), which would have taken h i m past the f r o n t o f the
Lake City Junior High School ( R . 4059).

As he approached the Junior High

School, he noticed a white van stopped in the westbound lane of Duval Street.
There were t w o cars backed up behind the van, and then his o w n truck.

As

he was waiting f o r the van t o move on, he looked t o his l e f t and noticed a
young g i r l , approximately t w e l v e or thirteen years old, dark shoulder length
hair, parted in the middle.

He stated t h a t the probable reason he noticed

the g i r l was t h a t she "looked like one of his nieces".(R. 4063).

With this

g i r l was a man, approximately early thirties, light t o dark brown hair, f u l l

cut.

He really noticed the man's hair because he had ''a nice head of hair"

( R . 4063).
crying.

He got the impression the g i r l was either crying or had been

The man had a scowl on his face ( R . 4063).

He got the impression

t h a t the l i t t l e g i r l had gotten into trouble a t school and t h a t her father had
come t o pick her up ( R . 4064).

The g i r l was wearing a dark blue pullover

football jersey and probably dungarees.

numbers 63 or 83 in red-orange on it

The football jersey had either the

( R . 4064).

pocketbook or a rolled up jacket or maybe both.

She was carrying a

The man had her by the
J

l e f t arm, about the elbow, and was leading her toward the white van.

The

g i r l was not actively resisting, b u t she wasn't anxious t o go ( R . 4064). They

crossed the street, went in f r o n t of the van, the man opened the passenger
door o f the van, helped the g i r l in, slammed the door, jogged around t o the
driver's side, got in and drove o f f ( R . 4065).

16

When shown State Exhibit J

(photograph of the white van), he identified i t as being very similar t o the

white van he saw t h a t morning ( R . 4069).

When shown State Exhibit I (Pic-

t u r e of Kimberly Diane Leach), he positively identified her as the young g i r l

he saw a t the school on February 9, 1978 ( R . 4071).

When asked t o look

around the courtroom t o see i f there was anyone who closely resembled the
person he observed leading the young g i r l t o the white van on the morning
o f February 9., 1978, Anderson immediately turned t o Bundy and stated, "The

I
'

Defendant'' ( R . 4072).
Leland Douberly, the custodian of records of the Lake C i t y F i r e Department, t e s t i f i e d t h a t the department's records r e f l e c t e d t h a t Anderson did,
in f a c t , work overtime on February 8, 1978.
worked u n t i l ll:03 p.m. ( R . 4190)

The records indicated t h a t he

Douberly also t e s t i f i e d t h a t i f Anderson

had been a t the F i r e Station f r o m midnight u n t i l 8:OO a.m. on February 9,

1978, he would have been paid f o r t h a t time, and t h a t the records did n o t
indicate t h a t he had been paid f o r t h a t t i m e ( R . 4196).

The records also indi-

cate t h a t Anderson commenced work on Feburary 9, 1978, a t 8:OO a.m.

E.

PRETRIAL MOTIONS

Bundy f i l e d numerous p r e t r i a l motions, most of which were denied by

the t r i a l court.

(See Defendant's Motion f o r New T r i a l [R. 14924-14932J)

1.

Hypnosis

Although the defense was aware t h a t no less than eight states' witnesses
had undergone state-sponsored hypnosis in an a t t e m p t t o enhance t h e i r memory
and recall, only C. L. Anderson's testimony was sought t o be suppressed on the
grounds t h a t his recall was either a f f e c t e d or induced by hypnosis.

The defense

f i l e d i t s f i r s t Motion t o Suppress the Anderson testimony and identifications on

17

''

September 17, 1979 ( R . 13002, 13006)

Hearing was held on said Motion on

November 10, 19, and 20, 1979 ( R . 13699-14022).

The defense called Dr.

David S. Kuypers, who qualified as an expert in forensic psychological hypnosis ( R . 10878).

Or. Kuypers described the differences i n the use of hypnosis i n the
clinical setting and the forensic setting:
" I n the clinical setting, f o r example, if we use the
age regression procedures, which basically is taking
a person back t o 're-live' a -- i t ' s n o t quite
reliving, i t ' s more a stimulation, b u t going through
t h a t procedure, we are more concerned, f o r example, in some cases about the emotional response of
individual, the accuracy o f what is reported or
recalled is n o t t h a t important i n terms o f helping
them t o learn how t o deal w i t h what might have
happened in the t r a u m a t i c incident and so on. In
the case of forensic hypnosis, there's a great concern f o r accuracy of recall and this is one of the
established reasons why certain standards have been
established and guidelines are used in order t o insure
t h a t the results obtained are as accurate as possible."
( R . 10884)
In describing why the procedures in the forensic setting are so import a n t , Or. Kuypers stated
"The three characteristics o f hypnosis t h a t I referred t o before: increased susceptibility t o
suggest ion, the u t i I izat ion o f i magi nat ive capacities
and the decrease i n c r i t i c a l judgment or awareness. A l l those factors would create d i f f i c u l t i e s
i n the following way. In the s t a t e of hypnosis, a
person is more responsive t o suggestions. Inapprop r i a t e suggestions are given and a person is going t o
accept them. We also know t h a t in the state o f
hypnosis t h a t people are capable of confabulating-these are made up responses t o account f o r gaps
i n memory or other things t h a t may have taken
place or even feelings t h a t they have. They may
have no basis in r e a l i t y , however, the individual in
the state o f hypnosis and afterwards believes them
very sincerely t o be c o r r e c t and true. These kinds
of things can happen i n hypnosis, p a r t o f the problem we encounter is t h a t it i s d i f f i c u l t t o ascertain
whether or n o t i t actually occurred because the
people who experience these things are sincere and
t r u t h f u l l y believe t h a t accurate recall has been estab-

18

lished when, indeed, it may be a confabulatory

response, i t may be an altered response or something o f t h a t nature t h a t can occur either spontaneously i n the state of hypnosis or because a
p a r t i c u l a r suggestion t h a t may have been given by
the operator."
( R . 10886-10887)
Dr. Kuypers defined the term, "confabulation":

" A confabulatory response or a confabulation i n

hypnosis is a response t h a t is made up and does
n o t have a basis in reality. This can be t o account
f o r a gap i n memory t h a t the individual cannot rec a l l even in hypnosis. It can be used t o account
f o r emotional feelings t h a t are going on. And, in
t h a t sense could be a type o f explanation, b u t
basically, it is a made up response."
( R . 10887)
as well as "altered response" or "altered memoryll:
"As I am referring t o an altered response i n this
situation of forensic hypnosis, I ' m basically t a l k ing about a recall t h a t the individual has. Something they actually remember t h a t is altered or
changed as a result o f the hypnotic procedures.Il
( R . l0888)
He also stressed the importance t h a t c a r e f u l consideration be given in
making the determination of whether or n o t a p o t e n t i a l witness should be hypnotized in the f i r s t place ( R . 10888-10890), and t h a t i f the decision is made
t o go forward, c e r t a i n protocols must be employed t o minimize contamination
o f the witness' memory ( R . 10890-10897).
Dr. Kuypers further described the numerous inappropriate procedures and
questions utilized by Keene and Burnette in their a t t e m p t s t o enhance Anderson's recall through hypnosis ( R . 10940-10961).

He f u r t h e r opined t h a t

Anderson should n e v e r have been hypnotized in t h e f i r s t p l a c e , because o f the

lapse o f t i m e between the event he was a t t e m p t i n g t o remember and the hypn o t i c episodes, and because of a l l the information he had learned about the
event during t h a t intervening period of t i m e ( R . 10961-10962 & 10972-10976).
His opinion of Anderson's testimony w a s t h a t it was unreliable ( 8 . 10962).

19

The defense also called Dr. Milton V. Kline, who was qualified as an
expert in clinical and forensic psychology ( R . 13674).
A f t e r defining and describing the phenomena o f hypnosis, Dr. Kline
stated t h a t the protocols employed by the therapist in submitting a subject
t o clinical hypnosis or forensic hypnosis are very d i f f e r e n t ( R . 13678-13679).
The reasons f o r the difference in protocols is t h a t in clinical hypnosis, the
therapist is attempting to help the subject; t o alleviate physical or emotional
pain and t o persuade h i m t o deal w i t h unpleasant or repressed memories

( R . 136811, whereas w i t h forensic hypnosis the recall itself, and in particular

the accuracy of i t , are the objectives ( R . 13681).
In response t o the question o f whether or not the therapist, in a clinical
o r therapeutic setting, is concerned about the accuracy of t h a t recall, Dr.

Kline stated:
"Sometimes, u l t i m a t e l y , yes. Initially, no. We are
concerned w i t h the meaningfulness or the value o f
being able t o recall traumatic events, disturbing
events, in one's l i f e history t h a t has been repressed
rather than forgotten, and the process of opening
up t h a t repressive mechanism, is what contributes and
helps the patient t o get b e t t e r , but-very often, the
memory, initially uncovered, in the analytic o r other
therapeutic workings, which hypnosis or other techniques are used, the memories t h a t are recovered
are frequently what w e c a l l a screen memory, and
they are n o t valid memories. They encompass the
same e f f e c t , or the same emotion, b u t they are not
necessarily actual memories. They may be fantasies,
they may be confabulated, b u t they may serve t o
bring this person in contact w i t h those feelings, and
t h a t ' s why i t ' s important therapeutical treatment.
The validity o f t h a t specific fantasy is of no greater
consequence, therapeutically , than the f a c t t h a t you
may have had last night a very meaningful dream
and t h a t dream may r e f l e c t what's going on in your
mind about the events o f today, or the events o f t w o
weeks f r o m now, b u t t h a t dream was invented by you,
you wrote the script, i t wasn't an actual experience,
b u t it may never-the-less be very revealing, o f the
things t h a t you wanted them t o reveal.

20

The same thing w i t h hypnotic recall. The

organization w i t h the structure o f the m a t e r i a l
w i t h i n the individual's mental apparatus does
n o t necessarily have t o be a valid recollection
f o r it t o be meaningful and emotionally viable
and therapeut ica I l y c o r r e c t ive."
( R . 13682- 13684)

Dr. Kline stated further t h a t because of a subject's a b i l i t y t o develop

screen memories or t o confabulate under hypnosis, a number o f very specific
guidelines should be employed in the forensic hypnosis setting t o minimize
inaccurate recall (R. 13684).
F i r s t , one should determine whether t o use forensic hypnosis in the
f i r s t place.

Dr. Kline stated in t h a t regard:

"One would use i t in order t o gain access t o aspects
p a r t i c u l a r t o an individual's memory, which might
not on any other basis be available f o r elucidation.
There would be no j u s t i f i c a t i o n - in my opinion,
and most of my colleagues' opinion, f o r utilizing hypnosis, unless i t ' s f o r the purpose of g e t t i n g a t m a t e r ial, which it has been demonstrated cannot be obtained
by more conventional, appropriate methods of interv ie w ing , i nt e r rogat ion, o r ment a I s t a t us ex a m i nat ion ."
(R. 13685-13686)

W i t h regard t o guidelines t o be followed, once the decision has been

made t o employ forensic hypnosis, Dr. Kline stated:
"...So, the f i r s t guideline t h a t I would establish would
be a careful psychological, or in general terms, a
mental assessment o f the individual w i t h whom hypnosis i s going t o be utilized. And t h a t c l i n i c a l assessment should be comprehensive enough t o give you an
idea o f the emotional s t a b i l i t y , o f the possibility o f
any psychopathology, the instances of delayed recall,
or the instances i n which there are instances of
periods of amnesia, instances in which there are some
disassociation in terms of everyday functions..."
( R . 13687-13688)

...,

"Another guideline
unless there are extenuating c i r cumstances, the subject t o be examined should be
examined i n a room only w i t h the examiner, w i t h
video tape, and ideally, the video tape should be done
through a one-way vision screen..."
( R . 13689)

21

"Third parties, unless they are for security reasons,

i f there are security problems, should be excluded
f r o m the room in which the hypnosis is going on."
(R. 13689)
Another guideline stated by Dr. K l i n e :

"A1 I communication about the individual Is memory

t h a t one wishes t o ascertain or retrieve should be
communicated t o the investigator i n w r i t i n g ,
never verbally on the p a r t o f the subject. The
investigator should himself, or herself, involve i n a
d i r e c t verbal examination or integrate her examinat i o n o f the subject on a verbal basis p r i o r t o the
induction of hypnosis."
"Everything he or she needs t o know should be provided i n w r i t t e n f o r m , every aspect o f t h a t individual t h a t is available shoudl be transmitted and
should be carefully studied and prepared."
(R. 13690-13691)
Dr. K l i n e had been furnished copies o f investigative reports o f Daugherty,
dated July 28, and 31, 1978, pertaining t o the witness, C. L. Anderson, as well
as the transcript of the Dekle-Anderson interview o f July 28, 1978,

He was

also furnished w i t h a transcript and tape o f the hypnotic session between

Anderson and Keene on July 28, 1978; a transcript and tape o f the hypnotic
session between Anderson and Burnette on July 31, 1978; a copy o f C. L.
Anderson's deposition taken on August 27, 1979; copies o f articles appearing
i n the l a k e C i t y Reporter on February 13, June 28, July 24, and July 28,
1978;

and copies of the depositions of Keene and Burnette ( R , 13695).

A f t e r having studied these materials, Dr. K l i n e was asked t o express his

opinion as t o whether Anderson would have been a proper subject f o r a t t e m p t e d

forensic hypnosis on July 28, 1978.
" I n my opinion, no."

His response was:

( R . 13697)

In responsle t o the question, "And why not, sir?" ( R . 13647), D r , K l i n e stated:

" I review this as a contaminated examinational
situation, in t h a t t o o long a period o f t i m e has

22

elapsed - during which he has been exposed t o

m a t e r i a l in the media, he's been exposed t o
comments f r o m friends and associates, fellow
citizens, in a community t h a t would obviously be
concerned about a c r i m e o f such violence, part i c u l a r l y w i t h a youngster - this i s the k i n d o f
c r i m e which has a high r a t e of p u b l i c i t y , which
it should have, in a community t h a t is concerned,
and he would have had m a t e r i a l presented t o h i m
which he may have registered, and - or may n o t
have - there's no way o f knowing this, b u t my
opinion is t h a t he was already so bombarded
by the media's contrusion in terms o f his ideas,
associations and p a r t i c u l a r l y , his feelings, t h a t the induction o f hypnosis would complicate
rather than c l a r i f y this situation. Unless there
were extraordinary circumstances, which I do n o t
find, f r o m my opinion, present in this instance,
I would preclude the use o f hypnosis as a viable
and projective tool i n the examination of this
p a r t i c u l a r witness." (R. 13697-13698)
(Emphasis supplied)
Dr. K l i n e ' s opinion o f both the Keene and Burnette hypnotic interviews
was:

...

"
I would say t h a t there is clear evidence of there
being confabulated m a t e r i a l t h a t i n a l l probability
would be mixed into his responses. But because o f
the manner these proceedings were undertaken, i t ' s
impossible t o know where and how, b u t rather t h a t
the whole thing has no r e l i a b i l i t y - and there's no
one aspect t h a t one could accept as, again, reliab i l i t y , contextual consistency, because of this confusion and conf abu I a t ion, and cont am ina t ion ."
( R . 13725-13726)

"...Frequently,
material t h a t has been blurred or
acquired or imputed a t some point, p r i o r t o the
hypnotic experience, may be recalled out o f position, may be recalled as something observed, as
something read - in other words, he has no a b i l i t y
t o really discriminate or d i f f e r e n t i a t e as t o the
source of the m a t e r i a l in one's head. T h a t ' s the
problem w i t h this kind o f contamination. It w i l l
come o u t , and the subject is unable t o discriminate
and know f r o m what source t h a t m a t e r i a l came."
( R. 13726-1 3727)
As an example o f why Dr. Kline doubted the r e l i a b i l i t y of Anderson's
identification, the f a c t t h a t i n none o f Anderson's reports t o Daugherty, Dekle

23

Keene, Burnette, nor a t his depositions, did Anderson recall seeing the Leach
g i r l ' s rather distinctive coat.

A number o f witnesses, including her mother,

testified t h a t she was wearing a three-quarter

length car coat, tan colored,

w i t h a f u r collar and f u r t r i m around the f r o n t and sleeves, on the day she

disappeared.

Tandy Bonner, who testified a t the suppression hearing and who

was the last person to see the Leach g i r l before she disappeared, said she was,
in f a c t , wearing the coat moments before Anderson said he "witnessed" her

abduction.

( R . 13877-13878)

Dr. Kline was asked i f , in his opinion, there was any reason Anderson
selectively perceived things, if he was reliving and seeing t h a t scene and
reviewing the events (R. 13728).
Dr. Kline responded:
"The answer t o t h a t is Yes - b u t one would have t o
know the reasons for the selectiveness or the intention.
I f he is recalling a scene, and c a n ' t identify an a r t i c l e
of clothing, which in f a c t is known t o have been worn
a t t h a t time, t h a t then would mean one o f several
things; one he did n o t see t h a t scene. Or t h a t he
saw t h a t scene and there was selective inattention t o
t h a t fact. Why there would be selectiveness as to t h a t
f a c t , and nothing else, in itself only poses another
problem. The most likely interpretation t o t h a t would
be t h a t he was describing another scene, and another
situation. If something as basic as outer garments seen
is now being retrieved f r o m the memory. One thing
about memory retrieval is t h a t it comes through in details, not in fragments. If comes through or i t doesn't
come through.
If w e are g e t t i n g confabulated responses, then w e w i l l be g e t t i n g gaps in details in
terms o f independent things, which w i l l have to be
fil!ed in, so t h a t -- I add this, because i t is important,
in relation t o hypnosis - individuals who f i l l in what
they remember, and use their imagination t o do t h a t ,
may draw on facts t h a t they have incorporated f r o m
non observed sources. They are not lying - they really
believe this as they a r e perceiving i t , b u t i t is a confabulated memory creation. It is not retrieval.
Retrieva I has distinct characteristics and spontaneity .
I f this was o m i t t e d , this would imply most likely, t h a t
this was not a retrieval process t h a t w e are observing,
b u t a confabulatory process, p a r t o f which has actual

24

elements, actualized f r o m on the spot experience,

p a r t of which is taken f r o m an unassociated source
- in other words, it is like source amnesia - when
somebody can n o t remember something, when he
draws upon what he does remember, i t w i l l f i t the
general characteristics and inspurse (sic) i t and you
g e t the memory. I t is n o t accurate, b u t a person
feels i t is. There is not a question o f the deception
on the p a r t of the witness, b u t there is a very real
question as t o the accuracy. One could n o t say it
was real."
(R. 13728-13730)
The b o t t o m line of Dr. K l i n e ' s testimony was t h a t C. L. Anderson's
testimony was unreliable.

( R . 13743)

In addition t o the testimony of Drs. Kline and Kuypers, the defense

also provided the t r i a l c o u r t w i t h t h e i r w r i t t e n critiques o f the Keene and
Burnette hypnotic interviews f i l e d w i t h the c o u r t , as an exhibit t o said Motion,
the a f f i d a v i t o f M a r t i n T. Orne, Ph. D., f i l e d w i t h the United States Supreme
Court in the case of Quaglino v. California, 58 L.ed. 2d, 189 (1978); rehearing
denied 58 L.ed 2d, 670, and the opinion rendered by the Honorable Ted E.
Wedemeyer, Jr., in the case of Wisconsin v. Joseph R, White, (unreported)
March 27, 1979, C i r c u i t Court, Branch 10, Case No. J-3665, Milwaukee County,
Wisconsin .
The State o f f e r e d no s c i e n t i f i c evidence in rebuttal a t the Suppression
Hearing.

The t r i a l court entered i t s order denying the Motion without preju-

dice t o raise the issue again a t the t i m e o f t r i a l ( R . 13387).

On January 22, 1980, Bundy f i l e d his Second Suppression Motion t o
Suppress Testimony o f Certain Witnesses whose recollection had been a f f e c t e d
and altered by hypnosis (R. 14732).

The purpose of this Motion was t o bring

t o the Court's a t t e n t i o n a resolution adopted in August, 1979, by the International Society of Hypnosis condemning the use or a t t e m p t e d use o f forensic
hypnosis by police o f f i c e r s and other lay people ( R . 14724).

The Second

Motion t o Suppress Testimony of Certain Witnesses. called whose testimony

25

was a f f e c t e d and altered by hypnosis; together w i t h the Resolution of the

National Society of Hypnosis, was denied by the t r i a l court immediately
preceding the t r i a l testimony o f C. L. Anderson (R. 4055).

2. Fibers and Shoe Tracks

Analyst Mary Lynn Henson qualified, over defense objection, as an
expert in fiber and shoe track analysis ( R . 5460).

She had examined various

objects, articles o f clothing, shoes, shoe tracks, and fibers in connection w i t h

the Leach case (R. 5460).

Her examinations f e l l into t w o groups:

those

involving the comparison of various latent shoe tracks w i t h several shoes

(R. 54614468); and those comparing similar fibers collected f r o m various items
o f clothing and a carpet ( R . 5468-5500).
The shoe track analysis, as described by Ms. Henson, involved determing
whether or not a p a r t i c u l a r type of shoe made a specific track (R. 5461).

She

t e s t i f i e d t h a t a piece of Saran wrap is placed over a photograph o f a shoe

t r a c k , the detail is traced onto the plastic, and then the plastic is placed over
the sole of the shoes (R. 5461).

A comparison i s made between the plastic

overlay and the shoe, and then a determination is made as t o whether or n o t

t h a t p a r t i c u l a r shoe could have made a specific track (R. 5462).
Henson stated no s c i e n t i f i c points o f comparison other than those readily
apparent t o the casual, untrained observer:

the size, shape, and tread design

o f the shoe ( R . 5462).

Henson also testified as t o c e r t a i n f i b e r examinations and comparisons
she made in the Leach case ( R . 5468-5500).

She collected l i t e r a l l y thousands

o f fibers f r o m the clothing of Leach, the carpet of the van, and the clothing
o f Bundy ( R . 5468-5500).
stages:

1)

Henson stated t h a t the f i b e r analysis was in t w o

a p a r t i c u l a r fiber would be identified through observation o f size,

26

shape, texture, luster and cross section; and 2) the fiber would be compared
t o those known fibers f r o m the clothing of Leach and Eundy and the van
carpet t o determine the source ( R . 5468, 5487-5490).
of fibers collected, she searched f o r and found:

Out of the thousands

four fibers like the known

fibers f r o m the carpet; t w o fibers like the known fibers f r o m Leach's pants
or purse; three other fibers like the known fibers f r o m the purse; one fiber
like the known fibers f r o m Leach's socks; one fiber like the known fibers
f r o m Leach's coat collar; one strand o f fibers like the known fibers f r o m
Leach's jersey; one fiber like the known fibers f r o m Leach's pullover s h i r t ;
t w o fibers like the known fibers f r o m Bundy's sports coat; and one fiber like
the known fiber f r o m Bundy's shirt ( R . 5487-5495).

She compared the source

of each fiber w i t h the object on which the fiber was located t o determine i f

a "cross-transference"

had taken place (R. 5494).

Based upon her "observations", without ever using a verifiable s c i e n t i t i c

procedure o f analysis, she concluded t h a t i t was extremely probable t h a t

d'

Leach's clothing had come i n t o contact w i t h the carpet of the van a t some
t i m e , t h a t Bundy's clothing very probably had come into contact w i t h the
carpet of the van, and t h a t the clothing o f each probably had come into cont a c t w i t h each other ( R . 5499).
Henson stated on cross-examination t h a t she did n o t look f o r any fibers
other than those t h a t could have come f r o m Leach's clothes, Bundy's clothes,
o r the van carpet (R. 5543).

She stated t h a t she could n o t t e l l i f a specific

f i b e r came f r o m a particular garment ( R . 5540).

Henson had no idea how

many p o t e n t i a l sources existed f o r those few fibers she identified ( R . 5541-

5542).

She immediately dismissed, and f o r some reason ignored, any fiber

t h a t cou Id n o t have come f r o m Leach or Bundy's clothing or f r o m the van

carpet ( R . 5 5 4 4 4 5 4 5 ) .

She did n o t consider the other fibers when determining

27

who or what else might have come into contact w i t h the three sources ( R . 5545).
She stated t h a t it was possible t h a t the three sources never came i n t o contact
w i t h each other, although her opinion, unsupported by any s c i e n t i f i c data, was
t h a t i t was unlikely ( R . 5553).

3. Change of Venue or in the

A Iternat ive. Abatement of Prosecution
Bundy's t r i a l was scheduled t o commence on November 5, 1979, in Columbia County, Florida.

On September 17, 1979, the defense f i l e d i t s f i r s t Motion

f o r Change o f Venue ( R . 14522), c i t i n g the massive and pervasive publicity

t h a t Bundy had received had precluded any opportunity f o r h i m t o receive his
constitutional r i g h t t o a f a i r t r i a l .
ber 4, 1979 (R. 13116).

A supplemental motion was f i l e d on Octo-

Hearing on the motion was held i n Columbia County,

on October 22, 1979 (R. 11020-11335).

The c o u r t reserved ruling pending voir

dire o f prospective jurors and, because the Indictment against Bundy alleged
t h a t the c r i m e o f murder was c o m m i t t e d in either Columbia or Suwannee
County ( R . 14023), gave Bundy the opportunity t o elect venue i n either county,
pursuant t o

3 910D3, Florida

Statutes ( R . 14638).

Bundy f i l e d his notice of election on October 26, 1979 (R. 14639).

In

the notice the defense specifically stated t h a t the election o f venue i n Suwannee County was n o t acquiescence t h a t a f a i r t r i a l could be obtained there, b u t
was merely compliance w i t h a statutory requirement.
On November 6 , 1979, an a t t e m p t t o pick a jury i n Suwannee County

was commenced ( R . 11346).

The defense also f i l e d another Motion f o r Change

of Venue or in the Alternative t o Abate Prosecution ( R . 14654).

A f t e r three

days and a f t e r examining only twenty-seven prospective jurors, the c o u r t granted

the Motion f o r Change o f Venue, b u t denied t h a t p o r t i o n o f the motion praying
f o r Abatement of Prosecution ( R . 14687).

28

The c o u r t found t h a t :

...because o f the pervasiveness and situation of

the press and media coverage, n o t only o f this
case, b u t also of the Defendant's recent murder
t r i a l in Miami, Florida, which was, f o r a large
p a r t , prosecuted concurrently w i t h this case...",
I'

along w i t h other factors, it would be "highly improbable, if n o t impossible"

t o empanel a jury in Suwannee County, Florida (R. 14688).
The court ordered the case transferred t o the N i n t h Judicial C i r c u i t ,

1 Orange County, Orlando, Florida, and t r i a l t o commence there on January 7,

1980 ( R . 14688).

4,
..

Limitation of Death Qualification of the Jurv

In anticipation of the prosecution's a t t e m p t t o "Death Qualify" the jury,

the defense, on November 6, 1979, f i l e d a Motion t o L i m i t Death Qualification
o f Jury ( R . 14658).

The defense urged t h a t the c o u r t should prohibit any

questioning of t r i a l jurors (as distinguished f r o m advisory sentence jurors)

regarding t h e i r attitudes toward the death penalty,

( R . 14658)

(Emphasis supplied)

As an alternative, the defense moved the c o u r t not t o eliminate

or disqualify p o t e n t i a l jurors f o r cause because of t h e i r views on capital punishment i f those views would not preclude them f r o m finding the defendant
g u i l t y of a c a p i t a l c r i m e ( R . 14658).
The motion was denied and substantial inquiry about the death penalty

was allowed during voir d i r e commencing on November 6, 1979.

F. TRIAL
1.

Motion for Change of Venue or in the

Alternative
to Abate ProSecution.
.
..
.

On January 9, 1980, the defense again f i l e d a Motion t o Change Venue

29

or in the Alternative Abate the Prosecution ( R . 13470).

on the Motion on January 10, 1980 ( R . 1159-1269).

A hearing was held

The defense again docu-

mented f o r the court, through exhibits and testimony, t h a t the Orange County
area had been permeated w i t h as much, of not more, pervasive media notoriety
about Bundy, as had been demonstrated t o be present i n the Columbia-Suwannee
County area.
Professor K y l e Phillip Taylor of the University o f Central Florida t e s t i fied a t the hearing ( R . 1220).

Professor Taylor was a Professor o f Communi-

cations and qualified as an expert in the f i e l d of public opinion polling.

Professor Taylor had been commissioned by the defense t o conduct a
p o l l concerning the Orange County voters' knowledge and attitudes about Bundy
and the Kimberly Leach case ( R . 1224).

Of the three hundred and thirty-one

persons contacted in the p o l l , three hundred and twenty-five, or ninety-eight

percent, indicated t h a t they knew the name of Ted Bundy (3.1237).
The court reserved ruling on the Motion pending further attempts t o
seat a jury (R. 1269).
The court never entered a specific order denying the Motion.

However,

i m p l i c i t in the c o u r t ' s swearing in of a jury and proceeding t o t r i a l is the

denial of t h a t motion.

2. Voir Dire
Voir D i r e examination o f over one hundred and eighty prospective jurors,
which took over eleven days, resulted in a jury being seated in Orange County.
V i r t u a l l y every venire person examined expressed knowledge of Bundy and the
facts of this case or the Chi Omega case in some greater or lesser degree.
Each venire person was individually voir dired.

Prior t o Counsel's

examination, the Court admonished each juror t o set aside any p r i o r opinions
and/or preconceived notions and judge the case solely on the evidence presented.

30

The court asked each if they could do t h a t and each of the twelve jurors and
three alternates selected said they could (R. 765).
Even though the defense was given back three peremptory challenges it
had previously used, the defense was forced t o use a l l o f i t s twenty perempt o r y challenges on jurors i t contended should have been removed f o r cause.
The defense requested and was denied additional peremptory challenges

( R. 3258).
The standard applied by the c o u r t was t h a t i f a juror would say he or
she could p u t preconceived notions and opinions aside and judge the case solely
on the evidence, they were not challengeable f o r cause.

In addition, five potential jurors who expressed an opposition t o the

imposition o f the death penalty were excluded, even though they stated t h a t
they could impartially determine g u i l t or innocence.

(See:

Sutton, R. 658;

Neel, R. 1329; Strong, R. 2095; Speir, R. 2465; and Hinkle, R. 3016)

All five venire persons, Sutton, Neel, Strong, Speir and Hinkle, were
excused by the t r i a l judge because they said they would not vote f o r the death
penalty.

(Sutton, R . 666; Neel, R. 1330; Strong, R. 2095; Speir, R. 2474; and

HinkJe, R. 3022)

Defense counsel objected in t i m e l y fashion t o the exclusion

o f each of these persons, w i t h the exception o f Neel.

(Sutton, R. 666;

Strong, R. 2096; Speir, R. 2474; and Hinkle, R. 3022)

Counsel's failure t o

object t o the removaJ o f Nee1 should n o t be interpreted as a waiver i n light

of counsel's continued objections t o the removal of subsequent venire persons

f o r the same identical reason.
There w e r e no jurors on Bundy's jury who expressed opposition t o or
any reservations toward the death penalty in general, or i t s possible imposition in the present case.

31

3. Flight
During the course o f the t r i a l , over defense objections, the state was
allowed t o present evidence o f alleged f l i g h t by the defendant.

The c o u r t

allowed t w o police officers, O f f i c e r David Gordon Lee o f Pensacola (R. 5150-

5192), and Deputy George K e i t h Daws of Leon County (R. 4642), t o t e s t i f y

t h a t the defendant, on separate occasions attempted t o elude capture by
fleeing .
The defense had f i l e d a motion t o exclude this testimony entitled,
" M o t i o n i n L i m i n e t o Exclude Testimony o f F l i g h t " , in open c o u r t on January

22, 1980 (R. 14920).

The c o u r t reserved ruling upon the motion u n t i l the

testimony was affered.

The defense renewed the motion p r i o r t o the testi-

mony o f each of the t w o law enforcement o f f i c e r s ( R . 4590-4639 & S124-5129)

Upon conclusion of the t r i a l , the t r i a l judge, over defense objection
(R:

6741), instructed the jury concerning the evidence of f l i g h t :

" Y o u are instructed t h a t f l i g h t of the defendant is
a circumstance which may be taken into conside at i o n w i t h a l l other facts and circumstances i n
evidence, and i f you, the jury, believe and f i n d f om
the evidence beyond every reasonable doubt t h a t
the defendant f l e d f o r the purpose o f avoiding
arrest and t r i a l under the charges herein, you may
take this f a c t into consideration in determining the
( R , 6939)
g u i l t or innocence."

4.

View

On January 29, 1980, the defense f i l e d i t s Motion f o r View in open

c o u r t (R. 14787).

The defense had contended, in the hypnosis arguments and

through the testimony of i t s experts t h a t while the witness, C. L. Anderson,

may have seen "something" a t "sometime", his f a c t u a l account o f "what" he
saw was t o t a l l y unreliable.
Since the court declined t o suppress Anderson's testimony, it placed the

32

burden upon the defense t o negate the incriminating i m p o r t of his testimony.

It was the contention of the defense t h a t the only way the jury could fully

appreciate the argument t h a t what Anderson ttsawtt was n o t the abduction o f

the Leach g i r l by Bundy, was f o r the jury t o actually visit the site t o see the
spatial relationship and distances between the homeroom class building, the
auditorium, the place where he f i r s t saw the man and g i r l , where he said the
van was parked, and his own vantage point (R. 5590).
The court denied the motion, finding there were other adequate means
of demonstrating the distances and spatial relationships ( R . 14808).
The only way the defense could "adequatelytt demonstrate the distances
and spatial relationships was t o send i t s investigator, Donald Robert Kennedy,
t o the Lake C i t y Junior High School t o photograph and measure distances.
The slides and photographs taken by Kennedy were introduced into evidence as Defense Exhibits 27 and 28, respectively (R. 6435 & 6455).

Kenne-

dy also prepared a plastic overlay which corresponded t o the aerial photograph

previously introduced into evidence as State E x h i b i t 2 ( R . 6428).

The plastic

overlay became Defe,nse E x h i b i t 26 ( R . 6430).

Anderson had previously marked the aerial photograph, identifying three
locat ions:
"A"

as the place where he had t o stop ( R , 4066)

ltBll

as the place where the white van was located (R. 4066).

"C"

as the place where he f i r s t observed the man and

g i r l ( R . 4067).

Kennedy t e s t i f i e d t h a t the distance f r o m p o i n t "C" t o the steps of the

auditorium (where the Leach g i r l would have been going a f t e r she retrieved
her purse and l e f t the Central Building)] was t w o hundred and sixty f e e t ( R . 6431);

33

t h a t the distance between "B" and "C"

was f o r t y f e e t (R. 6432); t h a t the

distance between where the Leach g i r l would have exited the Central Building
where Bishop's class was located, t o where she would have entered the auditorium, was t w o hundred and forty-seven f e e t ( R . 6432); and the distance
f r o m the corner of a portable building which the Leach g i r l would have had
t o walk around on her way back t o the auditorium, t o the point where she
would enter the auditorium, was seventy-seven f e e t (R. 6434).
Kennedy testified, and as depicted in the photographs, t h a t f r o m locat i o n "E" ( t h e van), the Central Building could not be seen nor could the east
entrance steps t o the auditorium be seen ( R . 6438), b u t the corner of the
portable building coutd be seen (R. 6439).
Kennedy also testified t h a t in February, 1978, between the hours o f

7:45 a.m. u n t i l 1O:OO a.m.,

the t r a f f i c on Duval Street (U. S. Highway 90)

in f r o n t of the Lake C i t y Junior High School would have been very heavy.

( R . 6445)

G. POST TRIAL
1

Penalty Phase

The defense submitted a Motion t o Enter L i f e Sentence on V e r d i c t and

t o Prohibit Penalty Phase o f T r i a l t o the court on February 9, 1980 (R. 1484014842).

The Motion alleged t h a t Bundy was forced t o risk a death sentence

t o exercise his r i g h t t o a jury t r i a l .

The c o u r t , a f t e r lengthy debate by

defense and prosecution, denied the motion (RP. 13)

The defense moved for a statement o f particulars regarding aggravating

circumstances and a proposed state witness l i s t (RP. 7 ) .
denied (RP. 13).

Both motions w e r e

Thereafter followed a motion t o poll the jury t o inquire

about intervening influences upon them (RP. 13).

34

That motion was denied (RP.15).

The state began i t s presentation of aggravating factors t o the jury w i t h

the testimony o f Jerry Thompson

(RP. 20-25).

Thompson was a law enforce-

ment o f f i c e r f r o m Utah, there t o t e s t i f y about Bundy's U t a h conviction f o r

kidnapping (RP. 21).

The state introduced, over defense objection, copies of

the Judgment and Sentence f r o m U t a h (RP. 24).

The state then called Mike

Fisher, a law enforcement o f f i c e r f r o m Colorado, there t o t e s t i f y about the

alleged escape by Bundy f r o m Colorado authorities while awaiting t r i a l on
c r i m i n a l charges (RP. 25-33).

Fisher was allowed, over defense objection, t o

t e s t i f y t h a t Bundy had escaped f r o m a Colorado j a i l (RP. 28-32).

The state

last called L a r r y Simpson, an Assistant State Attorney i n Leon County, Second

Judicial C l r c u i t , Florida (RP. 34).

Simpson testified, over defense objection,

t o the prosecution o f Bundy f o r crimes c o m m i t t e d in Tallahassee, Florida,

(RP. 37)

and Bundyls conviction on those charges (RP. 38).

The t r i a l Judge

denied a f i n a l defense motion f o r Judgment o f A c q u i t t a l (RP. 45).

The defense presented only one witness i n mitigation, Carole Ann Boone
(RP. 46-66).

The defense submitted w r i t t e n jury instructions regarding the penalty

phase of t r i a l and moved t h a t they be acjopted (RP. 14837-14839).

The Court

considered each instruction, decided t o modify and use numbers one ( I ) ,

three (3) and t e n ( l o ) , while denying the others (RP. 69-83).

The t r i a l judge

specifically modified number ten (10) t o read:

"The physical changes of the body occurring a f t e r
death cannot be considered by you i n your determination of whether the state has proved beyond a
reasonable doubt t h a t the capital c r i m e was especially heinous". (RP. 82)
The c o u r t then allowed, on defense motion, t w o f i n a l arguments t o each

side ( R P 83-88).

Final arguments on each side were presented t o the jury

(RP. 90-130), and the jury r e t i r e d t o deliberate (RP, 138).

35

The jury returned

b r i e f l y f o r additional instruction, then returned t o deliberate (RP. 139).

The jury returned again w i t h an advisory sentence:

Death

(RP. 144).

The jury was polled (RP. 144-147), and sentencing was set for February 12,

1980 ( R P . 147).

2. Sentencing
Court reconvened on Tuesday, February 12, 1980, w i t h a l l parties present,
whereupon Bundy was adjudicated guilty o f the kidnapping and murder of
Kimberly Diane Leach (RP. 159).

The defense again objected t o the aggrava--

ting circumstances alleged by the state and the t r i a l judge again denied those
objections (RP. 160-172).

The c o u r t then denied a defense motion t o defer

sentencing (RP. 172).

Immediately a f t e r a f i n a l statement t o the court by Bundy, the t r i a l
judge read his sentence and his findings o f aggravating and mitigating factors

(RP. 186).
Bundy was sentenced t o l i f e imprisonment for the kidnapping, and t o
death for the murder, of Kimberly Diane Leach (RP. 194-195).

36

ARGUMENT

I,

THE TRIAL COURT ERRED IN DENYING THE

DEFENDANT'S SEVERAL MOTIONS TO SUPPRESS
THE TESTIMONY OF CERTAIN WITNESSES WHOSE
RECALL H A D BEEN AFFECTED OR ALTEREDBY
HYP N0 sIS.

A. The pretrial identification procedures

utilized by the State on the witness, C.L.
Anderson, in his identification of the
Leach girl, Bundy and the alleged "abduction" were inherently suggestive and a
violation of due process.
A t the t i m e the defense was arguing i t s position cn the unreliability of
hypnotically induced memory, the weight o f legal authority on the subject was

as set f o r t h in the State's b r i e f in opposition thereof, i.e.,

that the f a c t t h a t

a witness had been hypnotized went t o the weight or credibility of his testimony, rather than t o i t s admissibility ( R . 13198-13212).
It was the contention o f the defense, however, t h a t due t o the lapse

of t i m e between the disappearance o f the Leach g i r l and the revelation o f

Anderson almost six months later, the massive amount o f information about
the events t h a t Anderson had ingested during t h a t period of time, and the
b l a t a n t misuse of hypnosis by Keene and Burnette, t h a t a substantial likelihood
o f an irreparable in-court misidentification o f Bundy by Anderson would occur.

The defense relied upon the case of Neil v. Biggers, 409 U.S. 188, 34 L.ed.
2d 401, 93 S.Ct. 375 (1972).
The Neil v. Biggers court outlined the factors t o be considered by the
t r i a l court in determining:
"...whether under the ' t o t a l i t y o f the circumstances',
identification was reliable even though the confront a t i o n procedure was suggestive".
"As indicated by our cases, the factors t o be considered in evaluating the likelihood of misidentification

37

'

include the opportunity o f the witness t o view the

c r i m i n a l a t the t i m e o f the c r i m e , the witness'
degree of attention, the accuracy of the witness'
p r i o r description o f the criminal, the level o f
c e r t a i n t y demonstrated by the witness a t the confrontation, and the length o f t i m e between the
c r i m e and the confrontation".
Neil v. Biggers, supra, a t 198-199.
The entire scenario, as described by Anderson, leaves l i t t l e doubt t h a t
he had the opportunity t o see the abduction o f the Leach girl.

The state

did n o t introduce one shred o f evidence t o corroborate Anderson's identifications.

Anderson's recollection o f the t i m e he cla,imed ie saw the llabduction'f
was fraught w i t h vacillation and indecision.

F r o m the t i m e he f i r s t reported

his revelation, t o Dekle, u n t i l he t e s t i f i e d a t the suppression hearing, he gave

varying estimations o f what t i m e of day he saw the "abduction".

His f i r s t

answer before the court on the subject was:

lt...Well, t h a t ' s as close as I can get t o i t , around
8 3 0 , b u t i t could have been easily 9 , o ' c l o c k , b u t
I think, i t was around 8:2O, 8:45, somewhere around
( R . 14017)
t h a t , b u t i t could have been later, easily."
His original recollection o f when i t happened:
"MR. DEKLE: When was it t h a t you saw this man
p u t this g i r l into the white van?

MR. ANDERSON:
MR. DEKLE :

I c a n ' t remember the exact date.

Just approximately?

MR. ANDERSON:

Four months ago around A p r i l , ah--"

(Defense T r i a l E x h i b i t 24, page 2)

The records o f the Lake City F i r e Department r e f l e c t t h a t Anderson
worked on February 9, 1978, starting a t 8:OO a.m.
Subsequent t o his i n i t i a l report t o Dekle, Anderson was t o l d t h a t the
day the Leach g i r l disappeared was on February 9 , ( R . 13980), and then

38

reports i t as a "date remembered" during the B u r n e t t e hypnotic episode

(Detense Trial .Exhibit 25, page 11).
The f a c t t h a t i t took Anderson almost six months t o "realize" what he
thought he saw casts grave doubt t h a t he actually saw any "abduction".
During this t i m e he was exposed t o tremendous media a t t e n t i o n about the
Leach g i r l , her disappearance, Bundy and their "suspected connection" (R. 13990-

13993).

His neice looks just like the Leach g i r l (R. 139861, and he had seen

pictures o f the Leach g i r l in the papers and on T.V. (R. 13990)

The f a c t t h a t his description of the g i r l and the man he saw vary
dramatically f r o m his i n i t i a l accounting t o Dekle and his report t o Burnette,
as well as the glaring omissions of what he did n o t see, i.e.,

the Leach g i r l ' s

coat, which she was wearing when last seen, and Bundyls f a c i a l hair, casts
doubt t h a t he was actually recalling anything under hypnosis.
The f a c t t h a t Anderson went f r o m a man who had a l o t of doubt and
did n o t want t o send police on a wild goose chase, t o an eyewitness who
could positively identify the Leach g i r l as the g i r l being led f r o m the La ke
C i t y Junior High School into a white van by a "man who looks a hell of a
l o t like Bundy", also casts grave doubt upon the r e l i a b i l i t y o f his identification.
Compound these f a c t s w i t h t w o t o t a l l y inappropriate hypnotic episodes, and
n o t only was the i d e n t i f i c a t i o n procedure overly suggestive, b u t in addition,
there was an absolute contamination o f the witness, C. L. Anderson.
Under the " t o t a l i t y o f the circumstances" doctrine announced in Neil
v. Biggers, supra, Anderson's in-court

identifications of the Leach g i r l , Bundy,

and the events should have been suppressed as t o t a l l y unreliable and a vialat i o n of due process as guaranteed by the F i f t h Amendment t o the United
States Constitution and A r t i c l e I, Section 9, Florida Constitution.

39

B,

Anderson's testimony should have been suppressed

on the basis that hypnosis contaminated his testimony

and made his testimony totally un'reliable.
7 he defense contends t h a t the s t a t e ' s evidence against Bundy, without
the testimony o f Anderson, would have been a series of meaningless incidents.
The fibers, the Parmenter and Farhat encounters, Oundyls being a t the Lake
C i t y holiday Inn on February 8, 1978, would have had l i t t l e impact without
the c r i t i c a l eyewitness who "actually saw" the Leach g i r l , Bundy and a white
van together.

It was Anderson's testimony t h a t brought these incidents togeth-

er and shrouded them w i t h an inference of g u i l t .

Some six months a f t e r the "abduction, and a week a f t e r Bundyls Indictment, Anderson sees Bundy's p r o f i l e (where have we heard t h a t before?) on
television.
before".

This triggers a "recollection" t h a t he "may have seen this guy

He reports t h a t he had some nagging doubts t h a t "he may have seen

something".

Had h e been l e f t alone t o ponder on his independant recollection,

the defense would have only had t o contend with, and could only have attacked,
the c r e d i b i l i t y o f his testimony.
However, the state, in t h e i r zeal t o enhance the recollection of this
vague, doubtful and unsure, b u t necessarily v i t a l p o t e n t i a l eyewitness, sought,
without b e n e f i t o f any s c i e n t i f i c expertise or advice, t o have h i m hypnotized.
Rather than proceeding w i t h caution i n this area o f possible contaminat i o n of a possible eyewitness, the state immediately employed the services of
t w o social workers whose expertise and experience i n the use o f therapeutic
hypnosis was l i m i t e d , a t best, and whose expertise and experience in the use
of forensic hypnosis was non-existent.

As stated earlier, a t the t i m e o f the suppression hearing, the greater

weight of legal authority was t h a t the hypnotizing of a witness went t o the

credibility o f the witness and not t o the admissibility o f his testimony.

Al-

though the defense presented uncontroverted scientific testimony t h a t :

a)

Due t o the lapse o f t i m e f r o m when the event occurred

and the t i m e Anderson was hypnotized, and because of the information received by h i m during the intervening time, Anderson
should never have been hypnotized in the f i r s t place; and
b)

The hypnotic procedures employed by Keene and

Burnette were so inappropriate and violative of the accepted

protocols f o r utilizing forensic hypnosis t h a t they created a
high risk of confabulation; and

c)

That Anderson's testimony was unreliable;

the court ruled based upon the greater weight o f the existing legal authority.
the only legal authority relied upon by the defense was Judge Wedemeyer's
opinion in Wisconsin v. White, supra.
Since t h a t t i m e a number of jurisdictions have taken a more enlightened

look a t the use and misuse of hypnosis in the forensic setting.

Undersigned

counsel w i l l not a t t e m p t , in this b r i e f , t o quote the scientific l i t e r a t u r e and

expert testimony relied upon by courts in this new trend o f judicial a t t i t u d e
toward hypnosis.

The decisions t o be hereinafter discussed and relied upon by

the defense contain lengthy quotes f r o m the scientific literature, and any
restatement herein would be duplicitious and t i m e consuming.

Suffice it to

say, the scientific l i t e r a t u r e and expert testimony relied upon in these decisions handed down since the suppression hearing in the instant case are consistent w i t h the unchallenged expert testimony and opinions of Drs. Kuypers
and K l i n e given a t the suppression hearing, and the affidavit of M a r t i n T , Orne,

Ph. D., and the opinion of Judge Wedemeyer in Wisconsin v. White, supra.

41

In State v. Mack, 294 N.W. 2d 764, the Minnesota Supreme Court

addressed the issue as one of f i r s t impression.

The record before the Mack

court contained the opinions o f no less than five experts in hypnosis and memory retrieval, including Dr. M a r t i n T. Orne.

The Mack c o u r t relied heavily on

the a f f i d a v i t o f Dr. Orne, which was attached t o the suppression motion f i l e d

by defense in the instant case.

The question c e r t i f i e d t o the Mack c o u r t

a t 767 was:
"...whether
a previously hypnotized witness may t e s t i f y
in a criminal proceeding concerning the subject matter
addressed a t the p r e t r i a l hypnotic interview" .
The Mack c o u r t , based upon the scientific data presented, elected t o
view the issue as now going t o the admissibility o f the witnesses' testimony
and n o t t o its credibility.
The court adopted the proposition advanced by the defense t h a t the
doubtful reliability of hypnosis prompted recollection raised an admissibility
question which should be governed by the standards announced in Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923):

"Under the Frye rule; the results o f mechanical o r
scientific testing are not admissible unless the testing
has developed or improved t o the point where e x perts in the f i e l d widely share the view t h a t the
results are scientifically reliable as accurate. Although hypnotically adduced 'memory' i s not s t r i c t l y
analogous t o the r e s u l t s of mechanical testing, w e
are persuaded t h a t the Frye rule is equally applicable in this context, where the best expert testimony
indicates t h a t no expert can determine whether
memory retrieved by hypnosis, o r any p a r t o f t h a t
memory, is t r u t h , falsehood or confabulation, a f i l l ing o f gaps w i t h fantasy. Such results are not
scientifically reliable as accurate."
Mack, a t 768.
Although the Mack court echoed the fears of Dr. Orne that:

"...

a case-by-case decision on the admissibility question would b e prohibitively expensive, and reveals the
d i f f i c u l t y of g e t t i n g experts qualified t o t e s t i f y about

42

hypnosis as an investigative rather than a therapeutic tool.",

the court, in the opinion o f undersigned counsel, stopped short o f adopting an
"inadmissible, per se,'" rule.

The rule adopted by the Mack court was

"...

a witness whose memory has been Irevived' under

hypnosis ordinarily must n o t b e p e r m i t t e d t o t e s t i f y
in a criminal proceeding t o matters which. he or she
I re membered I under hypnosis .It
(emphasis supp Iied)
Mack, a t 771.

In early 1981, the Arizona Supreme Court handed down its decision in
State v. Mena, 128 Ariz. 226, 624 P.2d, 1247 (1981).
In Mena, the court acknowledged, as the defense was compelled t o do
in this case, t h a t :
"Few reported cases have addressed the issue o f admissib i l i t y o f testimony offered by witnesses who have undergone hypnosis in an a t t e m p t to increase t h e i r memories
concerning events about which they may t e s t i f y most
courts which have considered the question have concluded t h a t p r i o r hypnosis neither renders a witness
incompetent nor renders a witness' testimony inadmissible." Mena, a t 1277.

...

The court then went on t o c i t e virtually every case c i t e d by the state

in i t s t r i a l b r i e f in opposition to the motion t o suppress.

In i t s b r i e f , the

state correctly recognized and c i t e d Harding v. State, S. Md. App. 230, A 2 d

302 (19681, as the earliest case deciding t h e precise question in issue here.

In addressing the rationale of Harding, the Mena court stated t h a t the

Harding court "handled the admissibility question cursorily, relying solely on

the witness' declaration t h a t she was testifying f r o m her own recollection."

Mena, a t 1227.
The Mena court went on t o say:
"None of the early cases following Harding which
approved the admission of testimony f r o m previously
hypnotized witnesses contain any analysis o f the
e f f e c t s o f hypnosis or even acknowledge i t s power t o
d i s t o r t memory ...'I
Mena, a t 1278.

43

"Accepting a witness' statement t h a t he i s t e s t i f y ing f r o m his own recollection requires the assumption
t h a t the witness is capable of making a determinat i o n t h a t what he perceives as his recollection actually
came f r o m his p r i o r observations as opposed t o
impressions planted i n his rnemq'ry through- hypnosis.
Such an assumption is contrary t o the opinion held by
many authorities t h a t a witness w i l l recall memories
fabricated under hypnosis as his own recollection and
w i l l be unable t o distinguish his true memories f r o m
pseudo memories i mp Ianted d u ring hypnosis .I'
Mena, a t 1278.
"The f a i t h which the above courts placed in the power
of cross-examination also seems misplaced. One
a r t i c l e claims t h a t ' t h e subsequent opportunity f o r
Cross-examination a t the t r i a l is virtually ineffective
as a means o f assuring no false suggestions have been
implanted' I I .
Mena, a t 1278 ( C i t i n g Spector and Foster,
Admissibility of Hypnotic Statements: Is the Law of
Evidence Susceptible? 38 Ohio St. L.J. 567 (1977)
In adopting an inadmissible, per se, rule, the Mena c o u r t based i t s decision on t w o c r i t e r i a :

First, that:

"The determination o f g u i l t or innocence of an accused

should not depend on the unknown consequences of a
procedure concededly used f o r the purpose of changing
in some way a witness' memory. Therefore, u n t i l
hypnosis gains general acceptance in the fields o f medicine and psychiatry as a method by which memories
are accurately improved without undue change or distortions, delusion or fantasy, we feel t h a t testimony of
witnesses which has been tainted by hypnosis should be
excluded in criminal cases."
Mena a t 1279.
This is a restatement of the F r y e rule adopted i n Mack, although t h
Menacourt does n o t c i t e F r y e by name.
The second c r i t e r i a established i n Mena was:
" U n t i l the general s c i e n t i f i c r e l i a b i l i t y of hypnotism as
an effective and accurate memory enhancer has been
established and/or the barriers which i t raises t o crossexamination are somehow overcome, we think the confrontation clause o f the Sixth Amendment of the United
States Constitution requires an exception t o A.R.S. Sec.
13-3989 f o r hypnotically tainted testimony."
Mena, a t 1280.
A.R.S.

Sec. 13-3989 is Arizona's s t a t u t e which governs the general admissibility

44

o f eyewitness' testimony.
While the f i r s t c r i t e r i a announced in Mena was inherent in the argument
of the defense a t the suppression hearing below, the second c r i t e r i a was specif i c a l l y argued t o the court, b u t without success.
The Arizona Supreme C,ourt again addressed the issue in State ex rel-,
Collins v, Superior Court and Silva, 132 Ariz. 180, 644 P.2d (1982).

oriyinzl opinion, the Collins court r e a f i i r m e d i t s decision in Mena.

In i t s
A motion

f o r rehearing was granted and there was a replacement of a Justice on the

original court.
In a supplemental opinion, filed on May 4 , 1982, the newly composed
Court modified i t s original "inadmissible per sell rule and added the exception
t h a t "hypnosis does not render a witness incompetent t o testify t o those facts
demonstrably recalled p r i o r t o hypnosis."

Collins, a t 1295.

The Collins opinion contains m o s t o f the relevent excerpts f r o m the

scientific community on the subject.
The Justice who authored the original opinion in Collins also wrote a
very cogent opinion concurring in p a r t and dissenting
t a l opinion.

in p a r t in the supplemen-

In his opinion, Vice Justice Gordon expresses great fear in allow-

ing a hypnotized witness t o t e s t i f y as t o his recall prior t o hypnosis.

In State v. Hurd, 86 N.J. 525, 432 A 2 d 86 (1981), the Supreme Court
o f N e w Jersey viewed the question in a d i f f e r e n t light.
the rigid Frye rule adopted in Mack and Mena.

The Court rejected

I t found t h a t " t h e purpose of

using hypnosis is not t o obtain the t r u t h , as a polygraph or ' t r u t h serum' is

supposed t o do".

Hurd, a t 92.

Instead, i t found t h a t hypnosis can legitimately

be employed as a means of overcoming amnesia and restoring the memory of

a witness.
"In ,light of this purpose, hypnosis can be considered
reasonably reliable i f i t is able t o yield recollections

45

as a c c u r a t e as those o f an ordinary witness, w h i c h

likewise a r e o f t e n h i s t o r i c a l l y inaccurate. Based
on t h e evidence s u b m i t t e d a t t r i a l , we a r e s a t i s f i e d
t h a t t h e use o f hypnosis t o r e f r e s h m e m o r y satisfies
t h e F r y e standard in c e r t a i n instances. I f it is
conducted p r o p e r l y and used only in a p p r o p r i a t e
cases, hypnosis i s generally accepted as a reasonably
r e l i a b l e m e t h o d o f restoring a person's m e m o r y . Consequently, hypnotically-induced t e s t i m o n y may b e
admissible i f t h e proponent of t h e t e s t i m o n y c a n
d e m o n s t r a t e t h a t t h e use o f hypnosis in t h e p a r t i c u l a r
case was a reasonably reliable means o f restoring
m e m o r y comparable t o n o r m a l r e c a l l in i t s accuracy."
Hurd, a t 92.
Having d e t e r m i n e d t h a t t h e use of hypnosis t o a i d a witness m e t t h e Frye r u l e
i n c e r t a i n instances, t h e Hurd c o u r t w e n t on t o q u o t e elaborately f r o m t h e
t e s t i m o n y o f D r . Orne, one o f Hurd's defense experts.

O r n e ' s t e s t i m o n y in

Hurd, and his p r o c e d u r a l guidelines w h i c h t h e Hurd c o u r t adopted, were con-

sistent w i t h his a f f i d a v i t s u b m i t t e d t o t h e t r i a l c o u r t below, and t h e t e s t i m o n y

o f Drs. Kuypers and Kline.
The Hurd c o u r t adopted t h e f o l l o w i n g rule:
"Whenever a p a r t y in a c r i m i n a l t r i a l seeks t o i n t r o d u c e a witness who has undergone hypnosis t o r e f r e s h
his m e m o r y , t h e p a r t y m u s t i n f o r m his opponent o f
his i n t e n t i o n and provide him w i t h t h e recording of
t h e session and o t h e r p e r t i n e n t m a t e r i a l . The t r i a l
c o u r t w i l l then rule on t h e a d m i s s i b i l i t y o f t h e t e s t i mony e i t h e r a t a p r e t r i a l hearing o r a t a hearing o u t
o f t h e j u r y ' s presence. In reviewing t h e a d m i s s i b i l i t y
o f h y p n o t i c a l l y refreshed t e s t i m o n y , t h e t r i a l c o u r t
should evaluate b o t h t h e k i n d o f m e m o r y loss t h a t
hypnosis was used t o restore and t h e s p e c i f i c technique employed, based on e x p e r t t e s t i m o n y presented by
t h e parties. The o b j e c t o f t h i s review is n o t t o
d e t e r m i n e whether t h e p r o f f e r e d t e s t i m o n y i s a c c u r a t e ,
b u t instead whether t h e use o f hypnosis and t h e p r o cedure f o l l o w e d in t h e p a r t i c u l a r case was a reasonably
r e l i a b l e means o f restoring t h e witness' memory."
The Hurd c o u r t t h e n w e n t on t o elaborate how t h e t r i a l c o u r t should
i m p l e m e n t t h i s rule.

F i r s t , t h e c o u r t should d e t e r m i n e whether hypnosis

should have been used o n t h e witness i n t h e f i r s t p l a c e , and once it is d e t e r -

46

mined whether the witness was one who would yield normal recall w i t h properly administered hypnosis, then determine whether the procedures followed
were reasonably reliable.

Hurd, a t 95 and 96.

The Hurd court then w e n t on t o adopt the s i x procedural safeguards set

f o r t h in the Orne affidavit and mandated compliance w i t h these safeguards by
the proponent o f testimony enhanced by hypnosis.

I t further casts the burden

o f proof on the proponent o f such evidence t o establish admissibility by clear

and convincing proof.
The court justified where it was placing the burden by stating:
"...We
recognize t h a t this standard places a heavy
burden upon the use o f hypnosis f o r criminal t r i a l
purposes. This burden is justified by the potential
abuse o f hypnosis, the genuine likelihood of
suggestiveness and error, and the consequent risk
o f injustice. Hypnotically refreshed testimony
must not be used where it is not reasonably likely
t o be accurate evidence. The burden of proof w e
adopt here w i l l assure s t r i c t compliance w i t h the
procedural guidelines set f o r t h in this opinion. It
w i l l also l i m i t the admissibility o f this kind o f
evidence t o those cases where a p a r t y can convincingly demonstrate t h a t hypnosis was a reasonably reliable means o f reviving memory comparable
in its accuracy t o normal recall."
Hurd, a t 97.

The facts in Commonwealth v. Nazarovitch, 436 A 2 d 170 (Pa. 1981) are

similar t o the case a t bar in t h a t they involve the hypnotically refreshed
recollection of the purported witness t o a c r i m e as opposed t o the v i c t i m .
Three years t o the date of the murder of a t w e l v e year old g i r l , Pamela
Wilfong walked into the Ambridge Police Station and told the Chief t h a t she
was having nightmares about the g i r l and t h a t she might know something
about the murder.

Prior t o t h a t , Mrs. Wilfong was questioned several times

about the murder, b u t provided no significant information.

Wilfong was hyp-

notized on four separate occasions and on the basis o f her hypnotically

refreshed recollections, Nazarovitch and others w e r e charged w i t h the murder.

47

Nazarovitch made a p r e t r i a l m o t i o n t o suppress Wilfong's testimony, which

was granted.
The Appeal by the S t a t e t o the Pennsylvania Supreme Court resulted in
the a f f i r m a n c e o f the t r i a l court.
The Nazarovitch c o u r t opted t o follow the rationale found in Mack and
Mena.
"...the Hurd c o u r t ' s rationale t h a t hypnotically
refreshed recollection m i g h t as well be admissib l e since ordinary eyewitness accounts are also
vulnerable t o e r r o r and inaccuracies does n o t do
f u l l justice t o t h e f a c t t h a t the traditional
guarantees o f trustworthiness as well as t h e
j u r y ' s a b i l i t y t o view the demeanor o f the w i t ness are wholly ineffective t o reveal distortions
o f memory induced by the hypnotic process ...
The probative w o r t h o f t h e hypnotically adduced
evidence cannot overcome t h e serious and fundamental handicaps inherent therein."
Nazarovitch, a t 177.
The c o u r t went on t o say:
"While we do n o t want t o establish a per se rule
o f inadmissibility a t this t i m e , we w i l l n o t

p e r m i t the introduction o f hypnotically

testimony u n t i l we a r e presented w i t h
clusive proof than has been o f f e r e d t o
the r e l i a b i l i t y o f hypnotically retrieved
Nazarovitch, a t 178.

refreshed
more condate o f
memory."

In People v. Shirley, 31 Cal. 2d 18, 641 P 2 d 775 (1982), the California

Supreme Court rejected the liberal application of the Frye rule, as applied
in Hurd, supra, and opted t o follow the Mack, supra, and Nazarovitch rationale:
" A f t e r c a r e f u l consideration, we decline t o join in
foregoing e f f o r t t o develop a set o f 'safeguards'
s u f f i c i e n t t o avoid the risks inherent in a d m i t t i n g
hypnotically induced testimony. To begin w i t h , we
are n o t persuaded t h a t the requirements adopted in
Hurd and other cases w i l l in f a c t forestall each o f
the dangers a t which they are directed. N e x t , we
observe t h a t c e r t a i n dangers o f hypnosis are n o t
even addressed by the Hurd requirements: virtually
a l l o f those rules are designed t o prevent the hypn o t i s t f r o m exploiting the suggestibility o f the

48

subject; none w i l l directly avoid the additional risks,

recognized elsewhere in Hurd, t h a t the subject ( I )
w i l l lose his c r i t i c a l judgment and begin t o c r e d i t
'memories' t h a t were formerly viewed as unreliable
(2) w i l l confuse actual recall w i t h confabulation and
w i l l be unable t o distinguish between the two, and
(3) w i l l exhibit an unwarranted confidence in the
validity of his ensuing recollect ion.
Lastly, even i f requirements could be devised t h a t
w e r e adequate in theory, we have grave doubts t h a t
they could be administered in practice without injecting undue delay and confusion into the judicial process.

...

w e join instead a growing number o f courts t h a t have

abandoned any pretense of devising workable 'safeguards' and have simply held t h a t hypnotically induced
testimony i s so widely viewed as unreliable t h a t it
i s inadmissible under the Frye test."
Shirley, a t 787.

In a footnote appearing in Shirley, a t 786, the California Court makes

note o f t w o New York t r i a l courts having adopted an even more elaborate
set o f safeguards than adopted in Hurd, supra.

1980) 103 Misc. 2d 881, 427 N.Y.S.

1980 103 M i x . 2d 831, 427 N.Y.S.

2d 177;
2d 181.

People v, Lewis (County Ct.,

People v. McDowelI, (County Ct.,

The Shirley c o u r t , supra, notes

t h a t these t w o cases were "derived f r o m an unreported b u t widely c i t e d ruling

of a Wisconsin t r i a l court in 1979".

Shirley, a t 786.

That ruling was

Wisconsin v. White, supra, c i t e d t o the t r i a l court below.

The standard announced in Frye has been recognized in Florida.

Coppolino v. State, 223 So2d 68 (Fla. 2d DCA, 1968) c i t i n g Kaminski v. State,

63 S o 2 d 339 (Fla. 1953):

"Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable
stages i s d i f f i c u l t to define. Somewhere in this
t w i l i g h t zone the evidential force of the principle
must be recognized, and while Courts w i l l go a long
way in admitting expert testimony deduced f r o m wellrecognized scientific principle or discovery, the thing
f r o m which the deduction is made must be s u f f i ciently established t o have gained general acceptance
in this particular f i e l d in which i t belongs." Frye, a t 1014

49

As we have seen, the contemporary and almost universal trend of authorit y i s t o exclude the testimony of witness' whose recall has been a t t e m p t e d t o

be enhanced by hypnosis.

The dangers inherent in the use o f hypnosis i n

the forensic setting are now being recognized by the courts which have faced
the issue in the recent past.
The f a c t t h a t hypnosis was used extensively i n this case and on a t least
one "eyewitnesst1 i n the Chi Omega case and the f a c t t h a t hypnosis is the
c u r r e n t vogue amongst investigators in c r i m i n a l cases throughout the State o f
Florida, gives rise t o the opportunity f o r the c o u r t t o make i t s position known
on the subject.

The cases relied upon by the State i n i t s b r i e f below are

archaic in t h e i r insight and do n o t address the real problem.

I t is t i m e f o r

the State o f Florida t o g e t i n step w i t h the c u r r e n t trend o f legal authority.

Under the Frye rule, Anderson should never have been allowed t o
testify.

Even under the guidelines set f o r t h i n Hurd, supra, Anderson's testi-

mony would have been excluded,

As b o t h Drs. Kuypers and K l i n e t e s t i f i e d ,

he would n o t have passed muster on the threshold question o f being a likely

candidate f o r hypnosis.
the hypnotic episode.

Too much t i m e had elapsed between the event and

He had been exposed t o too much i n f o r m a t i o n a f t e r

the event t o make i t reasonably likely t h a t his recall under hypnosis would
be comparable i n accuracy t o normal human memory.
And f i n a l l y , the inappropriate manner in which Keene and Burnette
conducted the hypnotic episodes on Anderson created the very strong likelihood t h a t his testimony a t t r i a l would be fraught w i t h confabulation.
Bundy should be granted a new t r i a l , exclusive o f the testimony o f

C. L. Anderson, and any other witness who has been hypnotized.

50

THE TRIAL COURT ERRED IN

DENYING THE MOTION TO L I M I T
DEATH QUALIFICATION OF JURYl
ALLOWING SWy QUALIFICATION;
AND EXCUSING FOR CAUSE TMEE
JURORS OPPdSED TO THE DEATH
PENALTY NOTWITHSTANDING
THEIR ABILITY TO WTE
GI IL T
OR INNOCENCE.
11.

A,

The Witherspoon Rule

must be considered in ligh
of critical differences in
sentencing procedures between Illinois and Florida,

l h e standard most frequently referred t o f o r t h e exclusion o f venire

persons because of t h e i r views on the death penalty was developed by the
U n i t e d States Supreme Court i n Witherspoon v. Illinois, 391 U.S. 510 (1968).
The language o f t e n c i t e d f r o m Witherspoon spells o u t the following rule:
"We repeat, however, t h a t nothing we say today
bears upon the power o f a State t o execute a
defendant sentenced t o death by a jury f r o m
which the only veniremen who were in f a c t e x cluded f o r cause were those who made unmistakeably clear (I) t h a t they would automatically
vote against the imposition o f c a p i t a l punishment
w i t h o u t regard t o any evidence t h a t m i g h t be
developed a t the t r i a l o f the case before them,
o r (2) t h a t t h e i r a t t i t u d e toward the death pena l t y would prevent t h e m f r o m making an i m p a r t i a l
decision as t o the defendant's guilt".
Witherspoon, a t 523 n . 21.
The t r i a l judge in the present case relied upon this rule as it was
adopted in Witt v. State, 3 4 2 , S o 2 d , 497.

(H. 288)

" W e repeat, however, t h a t nothing we say today bears upon the power

of the State t o execute a defendant sentenced t o death by a jury

Witherspoon, a t 523, n. 21.

(Emphasis supplied)

*.I'

The language f r o m Wither-

spoon reveals a c r i t i c a l f a c t o r made e x p l i c i t throughout the case, the i m p l i c i t

t o i t s rationale:

the jury in Witherspoon had the f i n a l power t o sentence the

51

defendant, and did i n f a c t , sentence h i m t o death.

Time and t i m e again the

court in Witherspoon refers t o the j u r y ' s authority t o sentence.

See Wither-

spoon a t 512, 518, 518 n. 12, 519, 519 n. 15, 520 n. 18, 521 n. 18, 523, 523 n. 21.
The j u r y ' s penalty determination i n Illinois in 1960 was binding upon
the t r i a l judge, although the law was changed i n 1967, t o p e r m i t the t r i a l
judge t o r e j e c t a jury determination of death,

Witherspaon, a t 518 n. 12.

The law governing capital cases in Illinois today allows f a r a binding jury
l i f e verdict, unless the jury unanimously agrees on death.

S38-9-1

Illinois Ann, Stats.

(1979)

The death penalty sentencing s t a t u t e in Florida d i f f e r s significantly

f r o m the one t h a t gave rise t o Witherspoon, as well as the one in Illinois
today.

See 1921.141, Florida Statutes (Supp. 1976-77).

In finding F l o r i d a ' s

current death penalty statute unconstitutional, the United States Supreme

Court in Proffitt v, Florida, 428 U. S. 242 (1976) said:
"The sentencing authority in Florida, the t r i a l judge,
is directed t o weigh eight aggravating factors
against seven m i t i g a t i n g factors t o determine whether
the death penalty should be imposed." P f o f f i t t , a t 251.
(Emphasis supplied)
Since the Florida capital jury i n Bundy's case did not have the power

t o sentence him, as did the jury which sentenced Witherspoon, the f i r s t p a r t

o f the Witherspoon rule, which allows f o r the exclusion of those venire per-

sons who "would automatically vote against the imposition o f capital punishment" should n o t have been invoked a t Bundy's t r i a l .

The t r i a l judge, however,

did employ it and did excuse f o r cause the five aforementioned venire persons
on t h a t ground

(See Statement of Facts, pp 29-31)

In so doing, the t r i a l judge violated Bundy's Sixth and Fourteenth

Amendment rights t o a f a i r cross section o f the community represented on
the jury, as guaranteed by the United States Constitution.

52

B. Florida has no significant

interest in excluding from
capital juries venire persons
who would not vote f o r the
death penalty,

Before addressing the violation of Bundy's r i g h t t o a representative

jury, i t is necessary to take up the question o f state interest, as it relates
to the exclusion o f venire persons.
In a key fair-cross-section case, Duren v, Missouri, 439 U.S. 357 (19791,
the United States Supreme Court held t h a t a state must show:
I t . . . a significant state interest [ i s ] manifestly and
p r i m a r i l y advanced by those aspects of the juryselection process that result in the disproportionate exclusion of a distinctive group."
Duren, a t 367-368.

...

Thus, "the state bears the burden of justifying this infringement by showing
attainment o f a fair-cross-section
interest".

t o be incompatible w i t h a significant state

Duren, a t 368.

Reflecting the w i l l of the people, the Florida Legislature passed into

law a statute which made death an optional punishment f o r f i r s t degree murder.

I f a venire person's opposition t o the death penalty would cause h i m

or her t o be unable t o impartially determine g u i l t , then Appellant concedes,

due t o the requirement of a unanimous verdict o f g u i l t , a single such juror
could unreasonably n u l l i f y the w i l l of the people of Florida, the Legislature,
his or her fellow jurors, and the t r i a l judge.

Under these circumstances, the

significant state interest a t stake i s clear and such a venire person would be
properly excused f o r cause i n accordance w i t h Witherspoon, supra.
It is important t o note a t this point t h a t Florida statute law does

cover such situations involving the exclusion o f persons in capital cases.

Florida Statute 8913.13 states simply:

" A person who has beliefs which

preclude h i m f r o m finding a defendant guilty of an offense punishable by

53

death shall n o t b e qualified as a juror i n a c a p i t a l case."

Of greater importance is what 1913.13, Florida Statute, does n o t cover.

It does n o t authorize Florida t r i a l judges t o exclude f o r cause a person whose

beliefs would preclude h i m f r o m voting f o r the death penalty.

Since Florida does n o t empower the jury i n a c a p i t a l case t o sentence

a defendant t o l i f e or death, i t does n o t have a significant state interest in

excusing f o r cause venire persons solely because they s t a t e they cannot vote
f o r t h e death penalty under any circumstance.

Such exclusions a r e n o t

relevant t o venire persons' abilities t o i m p a r t i a l l y render a verdict o f g u i l t ,

and they are n o t relevant t o sentencing, since t h e u l t i m a t e sentencing
capital cases is the sole province o f the t r i a l judge.

in

I f venire persons who

would n o t vote t o impose the death penalty were actually allowed t o s i t on

c a p i t a l juries in Florida, assuming they indicated an a b i l i t y t o determine
g u i l t o r innocence, their presence would n o t n u l l i f y , prevent or otherwise
f r u s t r a t e F l o r i d a ' s significant interest in imposing death sentences.

C, Florida is the

exception
to national practice in capital jury sentencing.

Since the decision in Furman v. Georgia, 408 U S . 349 (1972), t h i r t y seven states have adopted death penalty statutes.

T h i r t y - t w o o f those states

have adopted "guided discretion" death penalty statutes allowing f o r jury

p a r t i c i p a t i o n i n the penalty phase.

(Note:

New Jersey recently became the

t h i r t y - e i g h t h state t o adopt the death penalty.

Defendant does n o t y e t have

any i n f o r m a t i o n on the sentencing procedure under the new s t a t u t e )

See

Appendix A f o r l i s t o f a l l statutes.
Of the t h i r t y - t w o states, only Florida, Indiana and Alabama p e r m i t

judge imposed death sentences a f t e r jury decisions f o r l i f e , and o f these,

54

only Florida allows f o r an advisory death verdict upon a mere m a j o r i t y vote.

In the remaining twenty-nine states, a j u r y ' s verdict f o r a l i f e sentence is
binding.

In five states, the judge alone sentences.

See Appendix A .

The twenty-nine states w i t h jury p a r t i c i p a t i o n in sentencing and binding jury l i f e verdicts also require t h a t a jury verdict f o r t h e death penalty
be unanimous.

Clearly, these twenty-nine states, unlike Florida, have a

significant s t a t e interest, pursuant t o Duren, supra, i n excluding f o r cause

venire persons who would n o t vote f o r the death penalty under any c i r c u m stance.
I t is Bundy's contention t h a t the Florida death sentencing procedure
applied t o h i m is in a c t u a l i t y most like the ones in Arizona, Idaho, Montana
and Nebraska, where the penalty determination is made by the judge alone.
In these four states, unlike Florida, a venire person is only voir dired concerning the death penalty in relation t o how his or her feelings on t h a t issue
would a f f e c t the a b i l i t y t o determine g u i l t or innocence.

296

N.W. 2d,

440

State v. Anderson,

(1980); State v. Clark, 616 P, 2d, 888 (1980); State v.

Creeeh, 589 P, 2d, 114 (1979);

State v. Hallam, 575 P. 2d, 55 (1978); and

State v, Ramirez, 569 P. 2d, 201 (1977).

The precedent here, which is ignored in Florida, is t h a t venire persons

in these states are n o t excluded f o r cause solely because t h e i r feelings
about the death penalty would cause t h e m n o t t o impose the death penalty
in the event o f a g u i l t y verdict.
It is Bundy's position t h a t the f i m i t e d application o f Witherspoon i n

the four judge-sentencing states also should have been the law during jury
selection in his t r i a i .

F l o r i d a ' s departure f r o m national p r a c t i c e in sentenc-

ing in c a p i t a l cases only underscores the reason why the Witherspoon rule
should n o t b e applied in Florida as i t is in the vast m a j o r i t y o f states where

55

the jury actually sentences.

0. D.@efant was denied a

representat ive c ross-sect ion
of the community on his
capital jury,
The improper application o f t h e Witherspoon rule in this case serves
t o highlight an even more fundamental e r r o r :

The t o t a l exclusion o f persons

opposed t o t h e death penalty in any way f r o m his jury.

As has been said,

no one on Bundy's jury voiced any objection t o the death penalty.

It has

been shown t h a t five prospective jurors, who could have i m p a r t i a l l y determined g u i l t or innocence, were excused f o r cause by the t r i a l judge because
they said they would n o t have voted f o r an advisory death verdict.

Further-

more, the s t a t e cannot c a r r y the burden, as stated i n Duren, supra, t h a t a

significant s t a t e interest was served by excluding those five persons.
In a leading United States Supreme Court case involving t h e r i g h t t o
a fair-cross-section,

Taylor v. Louisiana, 419 U S . 522 (1975), the c o u r t said:

"We accept the fair-cross-section requirement as

fundamental t o the jury t r i a l guaranteed by the
S i x t h Amendment and a r e convinced the requirem e n t has solid foundation R e s t r i c t i n g jury service
t o o n l y special groups or excluding identifiable
segments playing minor roles in the community
cannot be squared w i t h the constitutional concept
o f jury t r i a l ...[T]he broad representative charact e r o f the jury should be maintained, p a r t l y as
assurance of a diffused i m p a r t i a l i t y and p a r t l v
because sharing i n t h e administration of justice
is a phase o f civic responsibility.'
Thiel v.
Southern Pacific Co., 328 U S . 217, 227 (1946)
( F r a n k f u r t e r , J ., d issen t i ng) " .
Taylor, a t 530-531.

...

In establishing a fair-cross-section

violation, it need n o t be proven t h a t

the exclusion o f an identifiable group o r segment resulted i n actual harm.

In Ballard v. United States, 329 U.S. 187 (1946), t w o i m p o r t a n t themes emerge.

56

F i r s t , it i s impermissible t o e l i m i n a t e a s i g n i f i c a n t prospective j u r o r f r o m t h e
jury pool.

Second, it is n o t necessary in challenging a n exclusionary p r a c t i c e

t o show t h a t those who a r e removed would a c t d i f f e r e n t l y :

Prejudice i s

inherent in t h e removal f r o m t h e c o u r t r o o m o f a n o u t l o o k , a p o i n t o f view.

In Ballard, supra, t h e c o u r t said, a t 194:

"To insulate t h e c o u r t r o o m f r o m e i t h e r ( m e n
o r women) may n o t in a given case make a n
i o t a o f d i f f e r e n c e . Y e t a flavor, a d i s t i n c t
q u a l i t y is lost i f e i t h e r sex is excluded. The
exclusion o f one may indeed m a k e the j u r y
less representative of t h e c o m m u n i t y t h a n
would b e t r u e i f a n economic o r r a c i a l group
were excluded."
This view is r e f l e c t e d in another cross-section case, Peters v, K i f f ,
407

U S . 493 (1972), which n o t e d t h a t i l l e g a l jury s e l e c t i o n procedures " c r e a t e

the appearance o f bias i n t h e decision o f individual cases, and they increase

h
.

the risk o f a c t u a l bias as well".

Peters, a t 502.

The line o f cases represented b y Duren supplies a f r a m e w o r k w i t h i n

w h i c h t o apply t h e c o n s t i t u t i o n p r i n c i p l e s o f Taylor, Ballard, Peters, and
o t h e r cases.

Duren qualifies t h e r i g h t t o a fair-cross-section

by f i r s t re-

q u i r i n g t h a t a defendant m a k e o u t a " p r i m a f a c i e " showing o f a fair-crosssection violation, and t h e n b y s h i f t i n g t h e burden t o t h e s t a t e t o j u s t i f y

t h e i n f r i n g e m e n t on t h e basis o f a s i g n i f i c a n t s t a t e interest.
Bundy submits t h a t t h e c o n s t i t u t i o n a l p r i n c i p l e s embodied in t h e r i g h t
t o a fair-cross-section

representation, summarized above, a r e relevant t o t h e

exclusion o f persons opposed t o t h e d e a t h p e n a l t y f r o m d e a t h p e n a l t y cases

in general and in his case in p a r t i c u l a r .

To b e g i n w i t h , Bundy believes t h a t h e has made a " p r i m a f a c i e " showing t h a t persons opposed t o t h e d e a t h p e n a l t y were disproportionately
excluded f r o m his jury.

57

N e x t , Bundy holds t h a t t h e r e is no m o r e i d e n t i f i a b l e o r cognizable

segment o r class in the c o m m u n i t y when i t comes t o "playing a m a j o r role"
in t h e debate over t h e d e a t h p e n a l t y than those opposed t o it. F o r t h i s reason,

t h e i r presence on c a p i t a l juries is indispensible t o give such juries a

"representative character".

Just as in Taylor and Ballard, supra, where i t

c a m e down t o excluding one o f t h e t w o sexes f r o m juries:

women; so it

was i n t h e p r e s e n t case t h a t Bundy witnessed t h e exclusion f r o m his j u r y

of one of t h e t w o groups v i t a l t o t h e dialogue o n c a p i t a l punishment:

those

opposed t o c a p i t a l punishment.
When only those in favor o f t h e d e a t h penalty a r e a l l o w e d t o s i t o n
d e a t h p e n a l t y cases, there is no way t o avoid " t h e appearance o f bias", and
" t h e risk o f a c t u a l bias" decreed i n Peters, supra.
Bundy asks t h i s C o u r t t o t a k e j u d i c i a l n o t i c e t h a t w h i l e those who
oppose c a p i t a l punishment, a d m i t t e d l y , a r e in t h e m i n o r i t y , they a r e a
substantial and o f t e n vocal m i n o r i t y , and t h a t t h e n a t u r e o f t h e e n t i r e
d e a t h p e n a l t y issue in our society would be vastly d i f f e r e n t w i t h o u t this
minority.

Moreover, they a r e as substantial a m i n o r i t y as, say, Republicans,

Methodists, Blacks, and unemployed workers; groups w h i c h a r e n o t excluded

f r o m service o n juries in Florida.

Polling d a t a suggests t h a t those opposed

t o t h e d e a t h p e n a l t y c o n s t i t u t e b e t w e e n t w e n t y and t h i r t y p e r c e n t o f t h e
population.
F o r t h e purpose o f a fair-cross-section

analysis o f a d e a t h p e n a l t y

case j u r y , those opposed t o t h a t p e n a l t y a r e a p r e e m i n e n t l y cognizable class.

C e r t a i n l y , Bundy recognizes t h a t t h e r e a r e l i m i t a t i o n s on t h e degree
t o w h i c h c a p i t a l juries i n F l o r i d a can, in t h e words o f Taylor, " r e f l e c t the
various d i s t i n c t i v e groups in t h e population".

Taylar, a t 538.

However! when

it comes t o c a p i t a l cases, those opposed t o t h e d e a t h p e n a l t y a r e n o t an

insignificant a l b e i t distinctive group and care should be taken t o insure t h e i r

presence on c a p i t a l juries "as a hedge against the overzealous or mistaken
prosecutor...",

Taylor, a t 530.

Dqfendant also realizes t h a t significant state interests can l e g i t i m a t e l y ,

in the words o f Duren, 'tresult i n the disproportionate exclusion of a
distinctive group".

Duren, a t 368.

However, in the instant case, because:

1) The jury d i d n ' t have the power t o sentence

Appellant;

2) Persons opposed t o the death penalty were

erroneously excluded f o r cause because whether
o r n o t such persons voted f o r o r against the
death penalty bore no significant impact upon
the penalty u l t i m a t e l y imposed by the c o u r t ;
3 ) There was, therefore, no significant s t a t e
interest supporting said exclusions; and

4 ) No one opposed t o the death penalty sat

on Bundy ' s jury.
Bundy I s Sixth and Fourteenth Amendment rights as guaranteed under
the United States Constitution t o a fair-cross-section

representation on his

jury was violated.

Accordingly, the conviction should be reversed because i t was produced
by an unconstitutionally selected jury, and a new t r i a l granted w i t h instructions t o p r o h i b i t o r a t least l i m i t death q u a l i f i c a t i o n o f the jury.

59

I l l . THE TRIAL COURT ERRED IN

DENYING DEFENDANT'S M O T I O N
FOR CHANGE OF VENUE OR
ABATEMENT QF P R O S E C U T I 0 N

The civil rights and Liberties guaranteed by the State and Federal
Constitutions are n o t discretionary.

Bundy was due a f a i r t r i a l before an

impartial jury, as delineated by A r t i c l e I , Section 16, Constitution of the

State o f Florida, and the Sixth and Fourteenth Amendments to the United
States Constitution.

Bundy was guaranteed a r i g h t to due process by A r t i c l e

1 , Section 9, Constitution of the State of Florida, and the F i f t h and Four-

teenth Amendments t o the United States Constitution.

these sections is clear and unequivocal.

The language of

Therefore, the court had no power

t o demote these rights f r o m "absolute" t o "variable"

in their application.

It was error t o avoid any possibility in which the constitutional rights guaranteed could be secured i n t a c t , which the court did by denying the defense
motion.
In a l l fairness, the court was faced w i t h a collision between the F i r s t
Amendment and F i f t h and Sixth Amendments of the United States Constitution.

When this c o n f l i c t develops, the court must decide which r i g h t must

give way t o the other.

On one hand, the r i g h t o f the press t o investigate

and publish information without restraint is saored t o our sense o f ordered

liberties;

on the other hand, the right of the individual to have a f a i r and

impartial t r i a l is the greatest restraint cn government oppression of the

individual.

'When the r i g h t o f the press t o publish information so drastically

alters the r i g h t of an individual t o have a f a i r t r i a l , the court must decide

t o harm one p a r t y in order t o p r o t e c t the other.

The court may i n i t i a l l y

subjugate the F i r s t Amendment right of the press t o the individual's Sixth

Amendment right t o a f a i r and impartial jury, b u t any restraint on the press

60

w i l l b e s t r i c t l y scrutinized and m o s t l i k e l y w i l l b e declared unconstitutional.

The c o u r t need only consider w h a t h a r m each group would s u f f e r .

If

t h e c o u r t restrainled t h e press, thus t e c h n i c a l l y v i o l a t i n g t h e F i r s t Amendment,

/

t h e press and p u b l i c

iossibly a vast number o f people) lose a q u a n t i t y o f

i n f o r m a t i o n t h a t may i n t e r e s t them.

If t h e c o u r t l e t s t h e press run r a m p a n t ,

t h e resulting negative p r e j u d i c i a l i m p a c t removes any possibility t h a t a n accused

c a n o b t a i n ,a f a i r t r i a

b e f o r e an i m p a r t i a l jury.

accused is much m o r e serious;

The r e s u l t i n g loss t o the

he loses his f o r t u n e , his f r e e d o m , or his l i f e ,

When, in c a p i t a l cases p a r t i c u l a r l y , t h e choice is an i m p a i r m e n t o f t h e r i g h t

o f t h e press o r t h e u n f a i r t a k i n g o f a d e f e n d a n t ' s l i f e , t h e choice should b e
very c l e a r ;

the press m u s t b e restrained in some way, d i r e c t l y o r i n d i r e c t l y .

The m o s t burdensome way t o o b t a i n t h e desired r e s u l t in t h e i n s t a n t

case was t o r e s t r i c t t h e press d i r e c t l y , t o p r o h i b i t t h e m f r o m publishing any
i n f o r m a t i o n about Bundy a t a l l , o r u n t i l a l a t e r date.
r e s t r i c t i v e and would n o t stand upon review.

This choice is t o o

A less burdensome manner t o

achieve t h e desired result was t o g r a n t t h e M o t i o n t o Change Venue o r A b a t e

t h e Prosecution ( R , 13470-13479).

A change o f venue would have removed

Bundy f r o m t h e physical s i t e o f t h e m o s t pervasive p u b l i c i t y , w h i l e a n abatem e n t o f prosecution would have removed t h e urgency o f t h e press t o publish!the

information.

It is u n l i k e l y t h a t t h e press c o u l d have k e p t up t h e r a t e

and q u a n t i t y o f i n f o r m a t i o n t h a t it was publishing a b o u t Bundy, had t h e c o u r t

abated t h e prosecution f o r a substantial p e r i o d o f t i m e .
The least burdensome manner o f dealing w i t h t h e p r o b l e m was t o adopt
a m o r e l i b e r a l a t t i t u d e t o w a r d t h e defense challenges f o r cause o f c e r t a i n
jurors.

A l t e r n a t i v e l y , because t h e p r e t r i a l p u b l i c i t y was p r e j u d i c i a l t o the

defense and n o t t o t h e s t a t e , a d d i t i o n a l p e r e m p t o r y challenges could have been

g r a n t e d t o t h e defense, as requested in a n o r a l m o t i o n d u r i n g voir d i r e ( R . 3253-

61

3258).

I f the defense had been able t o exercise additional peremptory

challenges, i t is more likely t h a t an i m p a r t i a l jury (those w i t h o u t substantial

knowledge of Bundy) could have been selected.
When other jurisdictions have been faced w i t h this c o n f l i c t between
constitutional rights, they have t r i e d t o choose the least restrictive measure
t o restrain the press, thereby favoring the r i g h t t o a f a i r t r i a l o f the defendant.

Because the Sixth Amendment t o the United States Constitution guar-

antees a " t r i a l by an i m p a r t i a l jury", and the due process clause o f the

Fourteenth Amendment extends this r i g h t t o state c r i m i n a l proceedings, there
is an infringement o f rights when the p r e t r i a l p u b l i c i t y permeates and infects
a community so t h a t the guaranteed " i m p a r t i a l j u r y f 1 is an impossibility.
Duncan v. Louisiana, 391 U.S. 145-149 (1968);

Apodaca v - Oregon, 406 U S .

404-406 ( 1972).
In the vast m a j o r i t y o f c r i m i n a l prosecutions, p r e t r i a l p u b l i c i t y is
manageable and, therefore, does n o t threaten this constitutional r i g h t t o
an i m p a r t i a l jury.

Indeed, in some cases, the c o u r t has held t h a t a t r i a l was

f a i r i n spite of widespread publicity.

Murphy v. Florida, 421 U S . 794, 803

(1975); Beck v. Washington, 369 U S . 541 (1962);

Stroble v. California, 343

U. S. 181 (1952).

However, in the instant case, as well as those f e w other cases where

the c r i m e is so "sensational"

or "heinous"

t h a t i t receives an enormous amount

of p r e t r i a l p u b l i c i t y , tension develops between the defendant's r i g h t t o an

i m p a r t i a l jury and the rights o f others t o the F i r s t Amendment rights of free
speech and press.

In lrvin v. Dowd, 366 U S . 717 (1961), an Indiana c o u r t

sentenced the p e t i t i o n e r t o death f o r the murder o f six persons.

coverage had been incriminating, pervasive and hostile,

62

Pretrial news

P e t i t i o n e r ' s counsel

had secured a change o f venue, b u t only t o the n e x t county.

Of the jury

panel of 430 persons, almost ninety percent had some opinion as t o the
Petitioner's g u i l t , ranging i n intensity f r o m near suspicion t o absolute
certainty.

E i g h t o f the twelve who finally served a d m i t t e d t h a t they believed

tha the Petitioner was g u i l t y , b u t f e l t they could render an i m p a r t i a l verdict

nonetheless.

Holding t h a t the Petitioner was n o t accorded a f a i r and impar-

t i a l t r i a l , the Supreme Court unanimously vacated his conviction and remanded

his case t o the d i s t r i c t c o u r t , stating:
" W i t h his l i f e a t stake, i t is n o t requiring too
much t h a t this Petitioner be t r i e d in an atrnosphere undisturbed by so huge a wave o f public
passion and by a jury other than one in which
two-thirds of the members a d m i t , before
hearing any testimony t o possession o f a b e l i e f
Irvin, a t 730.
in his guilt."
In Rideau v. Louisiana, 373 U.S. 723 (1963), a s t a t e c o u r t convicted the
p e t i t i o n e r o f murdering one o f three hostages during a bank robbery.

On

the morning of his arrest, a videotape was made o f a twenty-minute

inter-

view between the p e t i t i o n e r and the S h e r i f f , a t which t i m e the p e t i t i o n e r ,

in a highly emotional state, confessed i n d e t a i l t o the bank robbery, kidnapping and murder.
days

Noting t h a t the f i l m e d interview was broadcast f o r three

t o the community f r c m which the jury was chosen, the Supreme

C o u r t reversed the conviction on the following grounds:

"This spectacle, t o the tens o f thousands o f
people who saw and heard i t , in a very real
sense was Rideau's t r i a l - - a t which he pleaded
g u i l t y t o murder. Any subsequent c o u r t p r o ceedings i n a community so pervasively exposed
t o such a spectacle could be b u t a hollow
f o r m a Iit y
Rideau, a t 726.

."

Perhaps the most sensation21 case concerning the r i g h t t o an i m p a r t i a l

jury was Sheppard V. Maxwell,

304 1J.S. 333 (1966), in which Dr. Sam

63

Sheppard was convicted o f bludgeoning his pregnant w i f e t o death.

Virulent

and incriminating p r e t r i a l p u b l i c i t y about the p e t i t i o n e r and the murder made

the case a cause celebre in the community f r o m which the jury was selected.
A f t e r Sheppard had spent twelve years in prison, the Supreme Court ordered
a new t r i a l and held t h a t the massive, pervasive and prejudicial p u b l i c i t y
had prevented a f a i r t r i a l .

Sheppard, a t 363.

As the facts Show, f r o m nearly the day Bundy was arrested u n t i l he was

brought t o t r i a l , he was the constant subject o f news stories, o f f i c i a l statements by law enforcement and prosecution authorities and s t a r t l i n g , sensational
reports o f prospective witness' testimony and evidence t h a t would be presented.
As the media perpetuated the image o f Bundy! i t also shaped t h a t image and

gave any prospective juror the opportunity t o f o r m an advance opinion about

his g u i l t or innocence.

The "Bundy Mystique" was created and perpetuated

by an aggressive press and has been cogently summarized as long ago as

May 3 , 1978, by Judge Charles E. Miner, Jr.:
"It is true beyond peradventure t h a t Theodore
Bundy is newsworthy. Since his arrest and incarceration on the instant charges, Bundy has understandably been the object o f intense public
interest, Resourceful newsgatherers have proven
well equal t o the task of keeping the public well
informed. V i r t u a l l y no aspect o f Uundy's past
o r present l i f e , real o r imagined, has evaded
media discovery, analysis and comment, F a c t ,
speculation, characterization and impression have
combined t o give Theodore Bundy, wanted or not,
a mystique o f sorts. He enjoys ( o r tolerates,
as the case may be) a name i d e n t i f i c a t i o n in
this area of Florida a t least equal t o t h a t o f
( R . 14527)
F l o r i d a ' s most notable personages."
It is unreasonable t o assume t h a t the judge's admonition t o p u t t h a t

opinion o u t o f t h e i r minds was s u f f i c i e n t t o counter the pervasive e f f e c t s

of the media coverage.

64

The c o u r t should have granted another change o f venue, even if it

questioned the grounds, f o r as Singer v. State, 109 S o 2 d 7 (Fla., 1959) states:
" A change o f venue may sometimes inconvenience
the State, y e t we can see no way in which i t can
cause any real damage t o it. On the other hand,
granting a change o f venue i n a questionable case
is c e r t a i n t o e l i m i n a t e a possible error and t o
e l i m i n a t e a costly r e t r i a l i f i t be determined t h a t
the venue should have been changed. More import a n t is the f a c t t h a t real impairment o f the r i g h t
o f a defendant t o t r i a l by a f a i r and i m p a r t i a l
jury can result f r o m the failure t o g r a n t change
o f venue."
Singer, a t 14..

Other Florida cases agree w i t h the proposition t h a t more than a mere

statement o f i m p a r t i a l i t y is required a f t e r a venire person expresses existing
knowledge o r opinion about the case.
In Andrews v. State, 21 Fla. 598, a t 604, the c o u r t said:

"...The
f a c t t h a t he states t h a t i f taken upon the
jury he would give a v e r d i c t according t o the evidence is n o t o f itself s u f f i c i e n t t o overcome the
e f f e c t of what he has said as t o the f i x e d charact e r o f his opinion ...'I
In Olive v. State, I5 So. 925, a t 926, the c o u r t said

...[T]he s t a t e m e n t o f a juror t h a t he can readily

render a v e r d i c t according t o the evidence, notwithstanding an opinion entertained, w i l l n o t alone
render h i m competent i f i t otherwise appears t h a t
his formed opinion is o f such f i x e d and s e t t l e d
nature as n o t readily t o yield t o the evidence. . . I '
"

In Lamb v, State, 107 So. 530, a t 533, the c o u r t said:

W]e believe t h a t every juror should come t o
the investigation of each case f r e e f r o m any
preconceived impression o f i t whatever ...'I

I!...[

In Walsingham v. State, 1911, 61 Fla. 6 7 ! 56 So. 195, a t 198, the c o u r t

quoted w i t h approval several statements found i n cases f r o m other jurisdictions
"...'And
we also think t h a t , in c r i m i n a l cases,
whenever, a f t e r a f u l l examination, the evidence
given upon a challenge leaves a reasonable doubt
o f the i m p a r t i a l i t y o f the juror, the defendant

65

should be given the b e n e f i t of the doubt.'

( H o l t v, People, 13 Mich. 224, 227) ...'I
In Johnson v. Reynolds, 1929, 97 Fla. 591, 121 So. 793, 796, the c o u r t
said :
"If there is a doubt as t o the j u r o r ' s Sense of f a i r ness or his m e n t a l i n t e g r i t y , he should be excused ..."

Il*..llf error is t o be c o m m i t t e d , l e t i t be in favor

o f t h e absolute i m p a r t i a l i t y and p u r i t y o f the
jurors' ...which we i n t e r p r e t t o mean t h a t the mind
o f the proposed juror should contain no element o f
prejudice f o r or against either p a r t y i n a cause
t o be t r i e d before him."
The above quotations must be construed as being guides t o the t r i a l
courts in exercising t h e i r discretionary power in determining the competency
o f jurors.

They demonstrate t h a t the goal t o be sought is a jury composed

of persons whose minds are f r e e o f any preconceived opinions o f the g u i l t or

innocence of an accused, persons who can in f a c t give t o an accused the f u l l
b e n e f i t of the presumption o f innocence, persons who can because o f freedom
f r o m knowledge o f the cause decide i t solely on the evidence submitted and
the law announced a t the trial.
These cases i l l u s t r a t e t h a t i f there is basis f o r any reasonable doubt

as t o any j u r o r ' s possessing t h a t s t a t e o f mind which w i l l enable h i m t o

render an i m p a r t i a l verdict based solely on the evidence submitted and the
law announced a t the t r i a l he should be excused on m o t i o n o f a p a r t y , o r
by t h e c o u r t on i t s own motion.
The traditional remedy in cases such as these has been a reversal of
conviction.

This a f t e r - t h e - f a c t

remedy is obviously n o t the ideal or least

onorous method t o solve this c o n f l i c t .

Conversely, p r e t r i a l measures t o

restrain the press, implemented t o avoid a prospective reversal, run the possib i l i t y o f infringing upon those F i r s t Amendment rights t h a t enjoy co-equal
status w i t h the r i g h t t o a f a i r t r i a l by an i m p a r t i a l jury.

66

As Justice F r a n k f u r t e r recognized in lrvin v. Dowd, supra, t h e tensions

b e t w e e n t h e F i r s t and S i x t h Amendments is n o t easily reconciled:
" T h i s c o u r t has n o t y e t decided t h a t t h e f a i r
a d m i n i s t r a t i o n o f c r i m i n a l justice m u s t b e subordinated t o another safeguard o f our constit u t i o n a l systems--freedom o f press, p r o p e r l y
conceived. The c o u r t has n o t y e t decided
t h a t w h i l e convictions m u s t b e reversed and
miscarriages o f justice result because t h e minds
o f jurors o r p o t e n t i a l jurors w e r e poisoned, t h e
poisoner is c o n s t i t u t i o n a l l y p r o t e c t e d in p l y i n g
his trade."
lrvin v. Dowd, a t 730.
O t h e r cases also have had convictions reversed because o f p r e j u d i c i a l
p u b l i c i t y t h a t had a f f e c t e d the d e f e n d a n t ' s r i g h t t o t r i a l b y an i m p a r t i a l
jury.

See Estes v, Texas, 381 U.S. 532 (1965);

Janko v. United States, 366

U S . 716 (1961); Marshall v, United States, 360 U S . 310 (1959).

A l t h o u g h none o f t h e c o u r t ' s previous cases on F i r s t A m e n d m e n t guarantees involved a r e s t r i c t i v e o r d e r designed t o p r o t e c t a d e f e n d a n t ' s r i g h t t o

t r i a l b y a n i m p a r t i a l j u r y , (see Nebraska Press Association v, Stuart, 96 S.Ct.,
2791, 2801 (1976)), a b r i e f e x a m i n a t i o n o f t h e cases dealing w i t h p r i o r
r e s t r a i n t s demonstrates the harshness w i t h which t h e c o u r t views the e m p l o y m e n t o f such measures.

Over seventy years ago, t h e c o u r t in Patterson v.

Colorado, 205 U.S. 454, 462 (1907), s t a t e d t h a t t h e m a i n purpose o f t h e cons t i t u t i o n a l provisions f o r f r e e d o m o f speech and press is " t o p r e v e n t a l l such
previous r e s t r a i n t s upon p u b l i c a t i o n s as had been p r a c t i c e d by o t h e r governments".

Patterson, a t 462.

See also Commonweath v. Blanding, 20 Mass.

( 3 Pick) 304, 313, 314 (1825); Republica v, Oswald, 1 Dall. 319, 325 (Penn.,

1788).

In Near v. Minnesota, 283 U.S. 697, 716 (19311, f a c e d w i t h a c l a i m o f

p r i o r r e s t r a i n t against t h e press, t h e c o u r t declared a s t a t e s t a t u t e uncons t i t u t i o n a l , emphasizing t h a t though t h e p r o t e c t i o n against previous r e s t r a i n t s
is n o t u n l i m i t e d , t h e exceptional n a t u r e o f t h e l i m i t a t i o n has f o s t e r e d t h e

67

general conception t h a t liberty of the press has historically meant immunity

f r o m previous restraints or censorship.

Characterizing p r i o r restraints as

" t h e essence of censorship", the c o u r t noted t h a t f o r approximately 150 years

there had been an almost complete absence of a t t e m p t s t o impose previous
restraints upon publications relating t o malfeasance of public o f f i c i a l s , and
found t h a t f a c t demonstrative o f the deep-seated conviction t h a t such
restraints violate constitutional rights.

Near, a t 71 8.

There is a presumption of invalidity upon any measure t h a t restricted

the F i r s t Amendment freedoms.

This presumption must be overcome by the

proponent of the measure i n order t o resist constitutional challenge,

As the

court notes i n Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 559 (1975),
c i t i n g Freedman v. Maryland, 380 U S . 51 (1965) a t 58:
"The settled rule is t h a t a system of p r i o r restraint
avoids constitutional i n f i r m i t y only i f it takes place
under procedural safeguards t o obviate the dangers
of a censorship system."
However, an action t h a t removes the cause for the p u b l i c i t y , and does

not d i r e c t l y a f f e c t the publishing o f t h a t publicity, would n o t violate the

F i r s t Amendment.

If the c o u r t had removed the t r i a l t o another site, o r

abated the prosecution, the press would have been forced t o lessen or end
the fantastic quantity o f coverage in Bundy's case.

In either event, the

decision n o t t o publish would have been t h e i r own, without order f r o m a court.

As long as the court was persuaded t h a t substantial publicity existed which

precluded the empaneling o f an i m p a r t i a l jury, the c o u r t could continue t o

abate the prosecution or change venue.

Bundy certainly wasn't going anywhere.

The c o u r t in Nebraska Press Association v. Stuart, supra, reasoned t h a t

the t r i a l c o u r t could only speculate as t o the impact upon each juror of the
p r e t r i a l p u b l i c i t y , finding t h a t the judge would be dealing w i t h factors

68

"unknown or unknowable".

In the instant case, the defense produced extensive

area research and opinion polls t h a t gave rise t o a reasonable inference

t h a t the jurors would be impermissibly tainted w i t h p r e t r i a l publicity, and
unable t o render a f a i r and impartial verdict.

Thus the factors the t r i a l

judge confronted in this case were known or knowable and the judge could
have based a conclusion upon them.
Second, in Nebraska Press, a t 2805, the court examined measures t h a t
were less restrictive and t h a t may have mitigated the unrestrained p r e t r i a l
publicity.

That court made no specific finding t h a t any action short of re-

straining the press would n o t have protected the defendant's rights.

What the

court seems t o say i s t h a t the t r i a l judge should use the least burdensome
method o f restraining the press in order t o e f f e c t u a t e a f a i r trial.

If the

court, a f t e r careful deliberation, decides t h a t a restraining order on the

press i s the only way t o safeguard the defendant's rights, then the measure

w i l l rebut a t least the presumption o f invalidity and may survive the f u l l constitutional scrutiny required.

However, i f the court decided t h a t a restraining

order is inappropriate, i t should look f o r a less burdensome alternative t o

achieve the same result.
In the instant case, i t appears t h a t the t r a1 judge did determine t h a t
less onerous measures would not deter the press b u t the court would not go
so f a r as t o issue a restraining order t o curb the horrendous publicity given

t o Bundy.

The judge decided not to abate the prosecution, apparently

rationalizing t h a t the publicity would regenerate whenever the t r i a l recommenced.

The judge would not change venue because he apparently thought t h a t although
the publicity was pervasive, prejudicial and a barrier t o finding an impartial
jury, the same type of publicity would be present a t any other s i t e the c o u r t
chose.

69

The t h i r d consideration in Nebraska Press, supra, was whether a restraining order would have been effective.

The c o u r t , in Nebraska Press, ruled

t h a t the restraining order was n o t proper.

The order was overbroad and too

vague t o survive scrutiny because the order prevented the press f r o m publishing those facts and t h a t evidence proved or introduced in the public
portions of the t r i a l .

In addition, the court noted

"Our conclusion is not simply a result o f assessing the adequacy o f the showing made in this case;
i t results in p a r t f r o m the problems inherent in
meeting the heavy burden o f demonstrating, in
advance of t r i a l , t h a t without p r i o r restraint a
f a i r t r i a l w i l l be denied. The p r a c t i c a l problems
of managing and enforcing restrictive orders w i l l
always be present. In this sense, the record now
before us is illustrative rather than exceptional."
Nebraska Press, a t 2807.
In conclusion, the court noted t h a t there may be a situation w h e r e a
p r i o r restraint is justified, b u t emphasized t h a t "the presumption against [ i t s ]
use continued inta,ct."

Nebraska Press, a t 2807.

In the instant case, the ,judge apparently decided t h a t no alternative

other than a restraint on the press would w o r k and t h a t he would n o t impose
such a restraint.

Bundy would be t r i e d as f a i r l y as possible, even i f t h a t was

less than a f a i r t r i a l .

If a logical progression is traced from the beginning in Lake C i t y , t o

the hopelessly unfair solution in Orlando, Florida, it i s clear t h a t the court

did n o t exhaust a l l the preliminary measures leading up t o the imposition o f
the restraining order.

When the court, even in despair over the failure of

earlier preliminary measures, refused t o grant the Motion f o r Change of

Venue or t o A a t e the Prosecution, it erred.

The error was not de minimus,

not harmless error, and not a m a t t e r o f the c o u r t ' s discretion.

The Motion

should have been granted if the defendant was ever t o receive a f a i r t r i a l .

70

It is d i f f i c u l t t o endorse a policy that would result in numerous venue

changes o r delays i n prosecution, b u t in the exceptional case it is necessary.

The most beneficial guidelines come f r o m t h e Nebraska Press, supra, case,
which held that in order t o justify a p r e t r i a l restriction on the press, the
court must f i r s t exhaust a l l less burdensome alternatives.

If these alterna-

tives are not used, any restraint w i l l not survive the scrutiny of the court.

Nebraska Press, a t 2807.

If the t r i a l court uses no restraint, nor any less

burdensome alternatives, the case w i l l very probably result in a reversal.

Each

t i m e t h a t the c o u r t has reversed a conviction, it has carefully noted t h a t ,

"...some

course o f action short o f a p r i o r restraint would have made the

c r i t i c a l difference".

Nebraska Press, a t 2807.

In the instant case, the less burdensome alternative was t o grant the
defense Motion f o r Ghange of Venue or Abatement of Prosecution.

The least

burdensome alternative was t o grant the defense challenges f a r cause or t o

grant the defense additional peremptory challenges t o strike those jurors who
gave even the "appearance" o f having formed a p r i o r opinion.

By n o t doing

so, on only the speculation of the court t h a t it would do no good, the court

missed t w o acceptable alternatives t h a t would have upheld the defendant's

rights and, instead, opted f o r a course more convenient t o the c o u r t , b u t
harmful t o the defendant.
Clearly, a constitutional right cannot be denied upon only the speculat i o n of a t r i a l judge.
only when convenient.

I t is not discretionary;

it is n o t a variable right given

It i s absolute and must be s t r i c t l y protected.

Accordingly, the defendant must be given the opportunity t o a f a i r

t r i a l before an impartial jury, Bundy's sentence must be vacated, the conviction overturned, and the case remanded t o the t r i a l c o u r t f o r a new t r i a l .

I V . THE COURT ERRED IN NOT CONDUCTING A F R Y E T E S T ON ITS OWN

MOTION WHE-ONFRONTED
WTH T H E
FIBER AND SHOE TRACK EVIDENCE
TESTIMONY.

When Mary L y n n Henson explained her role in the Leach case and her
qualifications t o p e r f o r m t h a t role, she stated t h a t a l l of her training was
in-house, by the Federal Bureau o f Investigation and the Florida Department
of Law Enforcement; t h a t the only f o r m a l training she had was her general
university courses in chemistry and science; t h a t she had never been trained
specifically t o analyze fibers or shoe track evidence; and t h a t p r i o r t o the
t i m e she handled the Leach evidence, she had never qualified as an expert
in f i b e r analysis.

( R . 5454-5458)

Her lack o f independant training, t h a t is,

other than a t the d i r e c t i o n o f the l a w enforcement agencies, necessarily

created an inference o f unreliability i n her testimony.

The nature o f her

testimony was opinion, and t h a t opinion was formulated as a result o f her

l i m i t e d training and expectations of what her results should be b y the l a w
enforcement agencies who employed her.
The t r i a l judge, because he was charged w i t h presiding over a t r i a l
t h a t is f a i r t o the defendant, as well as the state, should have conducted a

Frye, supra, standard t e s t on i t s own m o t i o n t o determine whether the

evidence t o be presented, and t h e testimony concerning t h a t evidence were
b o t h reliable and relevant.

F u r t h e r , the c o u r t should have questioned Henson

f u r t h e r t o substantiate i t s rhling t h a t she was qualified t o express what

amounts t o a novel pseudo s c i e n t i f i c opinion.
The standard f o r the admission o f newly proposed s c i e n t i f i c technique
or principal i n a c o u r t o f law is succinctly stated by Justice Van Orsdel in

F r y e , supra, a t 1014.

72

Fiber and shoe track evidence are n o t based upon well recognized
scientific principles or discovery.

As Henson stated, her analysis involves

only the appearance, size, shape, t e x t u r e , and cross section of fibers. ( R . 5468,
5487-5490)

And the appearance of size and shape o f shoe tracks (R. 5461-5462).

There are no s c i e n t i f i c guidelines o f s i m i l a r i t y o f points o f comparison as in

fingerprints, nor any recognized method o f conducting the analysis and comparisons.
It should be apparent t o the c o u r t t h a t a person who has received no

independent o r f o r m a l training, conducting an analysis using a procedure which

has no roots i n s c i e n t i f i c principle, and using a procedure t h a t cannot he verified, cannot be accepted blindly by t h e c o u r t as an expert capable of expressing a s c i e n t i f i c reasoned opinion.
The c o u r t erred in n o t conducting the Frye inquiry.
fundamental fairness.

I t i s a question o f

When circumstantial evidence t h a t is highly prejudicial

is sought t o be introduced, and the development and analysis of t h a t evidence

involves a novel, unrecognized p r i n c i p l e o f science or pseudoscience, it is
the duty o f the c o u r t t o p r o t e c t the defendant t o insure t h a t his rights t o a
f a i r t r i a l are n o t compromised.
It is i m p o r t a n t t o note t h a t Henson's u l t i m a t e conclusion, the one t h a t

went d i r e c t l y t o the g u i l t o r innocence o f Rundy, was t h a t i t was only

probable t h a t Leach, Bundy and the carpet were together i n one place a t
one t i m e .

( R . 5499)

(Emphasis supplied)

Something t h a t is only "probable"

does n o t rise t o the "beyond a reasonable doubt" standard and cannot be

used as a determination o f g u i l t .
was n o t harmless error.

The c o u r t ' s error in allowing this testimony

It was highly prejudicial error and resulted in an

u n f a i r and unjustified statement o f g u i l t by Henscn.

73

The courts of the s t a t e and country are rapidly becoming the b a t t l e ground o f expert witnesses.

More and more, litigants and t h e i r lawyers

are a t t e m p t i n g t o prove the u l t i m a t e f a c t s o f t h e i r cases through the opintions o f so-called experts in the field.
Some s c i e n t i f i c procedures and testing methods a r e " t r i e d and true".
However, such new innovations as fibers and bite-marks, and testing i n the
fields of chemical analysis, serology, shoe tracks, etc., have n o t m e t the t e s t

of t i m e , nor has it been established under the Frye rule t h a t there is any
consensus i n the s c i e n t i f i c community o f the general acceptability o f the
testing procedures or the conclusions t h a t can b e drawn f r o m a l l of those
tests.
This c o u r t is urged t o adopt the rule the Hurd c o u r t , supra, adopted
w i t h regard t o hypnosis, and require t h a t the t r i a l courts o f this state cond u c t an inquiry, sua sponte, t o determine whether the Frye standard has been
m e t when such evidence is sought t o be introduced and t o place the burden
on the proponent o f the evidence.
Accordingly, the conviction i n the instant case must be reversed and
the case remanded f o r a new t r i a l w i t h instructions t o adopt the proposed
rule.

74

V. THE TRIAL COURT ERRED IN

DENYING DEFENDANT'S M O T I O N
FOR A VIEW.

I t i s conceded t h a t Florida law provides f o r the granting o r denying

o f a Motion f o r View a t the discretion of the court.

Dixon v, State, 143 Fla.

277, 196 So. 604 (1940); Rankin v, State, 143 So. 2d, I93 (Fla., 1962);
v. State, 386 So. 2d 597 (Fla. 5 t h DCA, 1979).

Tompkins

However, the c o u r t ' s rationale

in denying the defense Motion f o r View evidences a clear abuse o f discretion.

In denying the Motion, the c o u r t said:
Illt would seem t o the Court t h a t a l l of the matters
sought t o be presented by view could be presented
by either a stopwatch t i m i n g or walking t o t h e areas
concerned or by testimony o f witnesses or by photographs and t h a t t o transport this jury some three
hundred and f o r t y miles o r whatever i t is, roundtrip,
and consuming an entire day's t i m e travel and as well
as t o the disruption of the school system when (sic)
a jury going through i t , and if there was a desire
t h a t they travel between classes, and the attention
t h a t would be directed by that, would n o t , the
disadvantages would outweigh any advantages t o
insure t o the jury being able t o f i n d the t r u t h in
this m a t t e r , and t h a t the t r u t h can be presented
by measurements o f the distances, by photographs
o f t h e building and other means of projecting the
physical layout, as well as the photograph t h a t ' s
already in evidence. So the motion f o r the v i e w i s
denied for the foregoing reasons."
The disadvantage c i t e d by the court did not outweigh Bundy's r i g h t t o
have the jury f u l l y and completely understand a l l of the facts of the case
and his right t o have his defenses f a i r l y and effectively presented.

The f a c t

t h a t the jury would have t o travel "three hundred and f o r t y miles or whatever"
( R . 5621), was not the f a u l t of Bundy.

The f a c t t h a t Bundy could not g e t a

f a i r t r i a l in the venue where the c r i m e was alleged t o have been c o m m i t t e d

was not the f a u l t of Bundy.

The c o u r t ' s selection of Orlando, Florida, as

the t r i a l s i t e certainly created a logistical problem, b u t when weighed against

75

Bundy's r i g h t t o a f a i r t r i a l , w i t h his l i f e a t stake, the disadvantages c i t e d

by the c o u r t were de minimus.
To change venues t o insure a f a i r t r i a l and then t o deny a c r i t i c a l
and absolutely necessary jury view because the new situs o f the t r i a l is t o o

far away f r o m t h e situs o f t h e alleged c r i m e n o t only defies logic, b u t is a

denial o f fundamental due process.
Their a b i l i t y t o a t t a c k the c r e d i b i l i t y o f Anderson's testimony was
v i t a l t o the defense.

To deny full and complete opportunity t o do so, on

the basis o f inconvenience or the cursory determination t h a t there were "other

adequate means" ( R . 14808), was error.
As Bundy himself pointed out t o the c o u r t :

" A n d so I think i t ' s really c r i t i c a l t o our case,

because C. L. Anderson is c r i t i c a l t o t h e i r case.
Absent a showing t h a t C. L. Anderson saw what
he saw, i f a jury disbelieves t h a t C. L. Anderson saw what he saw ( s i c ) , then there is no evidence o f kidnappinu. There is no evidence t o
brina
murder.
u about a verdict o f f i r s t dearee
u - because t h e r e is no evidence o f premeditation.
There is no evidence o f an abduction. There is
simply the f a c t o f the homicide or the death
by homicidal means of K i m b e r l y Leach. And
so i t ' s so very c r i t i c a l t o o u r case t h a t w e are
able t o argue t o the jury, based upon t h e i r
viewing of the scene, t h a t what C. L. Anderson
saw could not, is n o t believable under the
circumstances."
( R . 5594-5595) (Emphasis supplied)
~

I t is obvious t h a t the jury believed the testimony of C. L. Anderson,

because they found Bundy g u i l t y o f kidnapping and f i r s t degree murder.
However, it would have been p a t e n t l y obvious t o t h e jury t h a t C. L.
Anderson could n o t have seen what he said he saw, in the c o n t e x t o f it
being the abduction of K i m b e r l y Diane Leach by 'Theodore Robert Bundy,
had they been given the opportunity t o personally see f o r themselves.
They would have seen fo r themselves t h a t f r o m locations " A " and "3"

76

the Central Building is n o t visible.

They would have seen f o r themselves t h a t

the f i r s t moment the Leach g i r l would have been visible t o the operator of a
vehicle heading west on Duval Street would have been when she rounded the
corner o f the portable building.

They would have seen f o r themselves t h a t

she only had t o walk seventy-seven f e e t f r o m t h a t p o i n t t o the safety o f the

auditorium,

They would have seen f o r themselves t h a t had she been espied

by someone driving west on Duval Street, as she rounded t h a t corner, and

t h a t someone who immediately became b e n t upon her abduction would have
had t o stop his vehicle i n t r a f f i c , travel three hundred f e e t t o the steps o f
the auditorium and intercept her before she could g e t safely inside t h e building.
Assuming, arguendo, t h a t p a r t o f the "Bundy Mystique" was t h a t Bundy
did possess such speed and did i n t e r c e p t the Leach g i r l , i t would have taken
a t least several minutes f o r h i m t o convince her t h a t there was some legitim a t e reason f o r her t o leave school w i t h him.

However, Anderson stated

t h a t when he f i r s t saw the g i r l and man, they were already a t location "C"
and only t w o vehicles had backed up behind the van in t h e line o f t r a f f i c on
this very heavily traveled highway.
Absent hypnosis, Anderson's story would be inconceivable in the cont e x t o f i t being t h e abduction o f the Leach g i r l ;

however, through the

exploitation o f hypnosis, he became convinced t h a t " w h a t he may have seen"

was i n f a c t "what he saw", and so convinced the jury.

Hypnosis c r i t i c a l l y

impaired the a b i l i t y o f the defense t o t e s t Anderson's c r e d i b i l i t y .

Likewise,

the denial of the m o t i o n f o r a view c r i t i c a l l y impaired the a b i l i t y o f the

defense t o impeach Anderson's testimony in any e f f e c t i v e manner.

Still

photographs and testimony may have been a "means available", b u t i t f e l l f a r

short o f a f f o r d i n g Bundy his constitutional r i g h t t o an e f f e c t i v e defense and a

77

f a i r trial.
Because t h e c o u r t erroneously excluded relevant e x c u l p a t o r y evidence
by denying t h e M o t i o n f o r V i e w , t h e c o u r t abused i t s discretionary f u n c t i o n .
A c c o r d i n g l y , t h e conviction should b e reversed and t h e case remanded
f o r a new t r i a l w i t h instructions t h a t t h e j u r y b e p e r m i t t e d t o view t h e situs
o f t h e alleged crime.

a
78

V I . THE T!3IAL COURT ERRED IN

DENYING DEFENDANT'S MOT1 0 N
IN LlMlNE TO EXCLUDE EVIDENCE
OF FLIGHT AND THE SUBSEQUENT
JURY INSTRUCT I O N ON FLI G H T
BASED UPON T H A T E V I D E N C E
A.

The Evidence of Flight

The basis f o r the " M o t i o n in Lirnine" was t h a t such evidence was

irrelevant and i m m a t e r i a l t o the issue o f g u i l t or knowledge, and t o allow
such testimony would be prejudicial.

( 2 . 14920)

Defense counsel argued

strenuously t h a t there were so many o her inferences t h a t could be drawn

f r o m the t w o incidents of f l i g h t , t h a t

t was n o t probative in the Leach mur-

der and, therefore, it was n o t relevant

( R , 4622-4638)

The court denied

the M o t i o n in L i m i n e and allowed Daws ( R . 4640) and then L e e ( R . 5150)

t o t e s t i f y as t o the alleged f l i g h t by the defendant.

The t r i a l c o u r t based i t s decision upon t w o cases:

Batey v, State, 355

So. 2d, 1271 (1st DCA, Fla. 1978); and Hargrett v, State, 255 So. 2d, 298 ( 3 r d

D C A , Fla. 1971).

These cases are factually l i m i t e d and should n o t have been

the basis f o r the c o u r t ' s decision on this issue.

In Hargrett, the c o u r t held t h a t because there was evidence o f f l i g h t ,

an instruction on f l i g h t was properly given t o the jury.

Hargrett, a t 298-300.

The defendant in Hargrett contended t h a t there was no evidence o f f l i g h t ,

b u t the c o u r t denied the contention and concluded t h a t there was evidence
of f l i g h t .
In the instant case, the defense objected t o the introduction o f evidence

of f l i g h t itself.

Clearly, this is a d i f f e r e n t basis than Hargrett.

question o f relevancy;
cause i t was irrelevant.
admitted.

This i s a

t h a t the evidence should n o t have been a d m i t t e d be-

Hargrett never addressed the relevancy o f the evidence

I t is because o f this, w i t h the apparent misreading o f Hargrett by

79

d'

the state and the misapplication o f Hargrett by the c o u r t , t h a t the t r i a l

c o u r t erred in basing i t s decision on the Motion in L i m i n e upon Hargrett.
The c o u r t , i n the instant case, also c i t e d Batey, supra, as grounds f o r
i t s decision.

In Batey, in a rather b r i e f and unelucidating Per Curiam w i n i o n ,

the c o u r t held t h a t :
"The facts presented a t t r i a l were s u f f i c i e n t t o
find the existence of f l i g h t and other c i r c u m stances indicating appellant's guilt. Therefore,
the f l i g h t may be considered as a circumstance
of g u i l t under an appropriate instruction."
Batey, a t 1272. (Emphasis supplied)
As i n Hargrett, the Batey decision cannot be used as the basis f o r

the decision in the instant case.

In Batey, the appellate c o u r t based i t s

decision upon the "Facts presented a t t r i a l " .

Such a l i m i t a t i o n , without any

showing of what the facts were renders this decision inherently suspect and
n o t a proper case t o apply t o the instant case.

The state, once again, misread

the case and apparently misled the t r i a l court as t o i t s scope.

Without any

way t o determine how extreme or how similar the f a c t p a t t e r n was i n Batey,

i t was error t o apply it t o the instant case.

Furthermore, f r o m the language,

the Batey decision was based upon the type o f instruction t o be given and
n o t whether
-

the evidence was relevant.

The Evidence o f F l i g h t was received in error.

The c o u r t erroneously

based i t s decision upon cases t h a t could n o t be applied t o the instant case,

because they were factually d i f f e r e n t , l i m i t e d t o those f a c t s and the issue

involved was the instruction, and n o t the relevancy o f the evidence.

The t r i a l

c o u r t did n o t address the issues o f relevancy, m a t e r i a l i t y , or prejudice, as

raised by the defendant's Motion i n Limine.

The Motion was denied upon

improper grounds by the t r i a l court.

Upon review b y this c o u r t , t h e question o f relevance should be reviewed
as w e l l as the proper inference t o be drawn f r o m the use o f such evidence.

80

As the defense contended a t t r i a l , the s t a t e should n o t be allowed t o

draw only one single inference as t o t h e f l i g h t of a defendant when there

may be a m y r i a d o f reasons t o justify o r explain such f l i g h t .

The s t a t e argued

t h a t the defendant was free t o assert those myriad reasons in an a t t e m p t t o

prove t h a t the f l i g h t was n o t as a result o f the g u i l t y knowledge o f the
defendant as it related t o the crimes charged in the instant case, b u t this is
contrary t o a l l established t r a d i t i o n o f fairness in our system o f justice.
It is unreasonable and a denial o f due process t o require the defendant
t o prove he i s n o t g u i l t y , as the s t a t e suggested, and the t r i a l c o u r t irnpliedly

agreed, must be done i n the instant case.

I t is unreasonable t o place this

burden upon any defendant who stands innocent u n t i l proven g u i l t y .

be the s t a t e ' s burden t o prove this g u i l t .

It must

The s t a t e must be required t o prove

t h a t t h e f l i g h t was due t o t h e g u i l t y knowledge of the defendant of the c r i m e

f o r which he is on t r i a l , beyond a reasonable doubt and t o the exclusion o f
any other explanation f or the f l i g h t .

Unless the s t a t e can show t h a t the

defendant had no other reason t o f l e e , the s t a t e should n o t be allowed t o

I
_

introduce evidence o f flight.

To hold otherwise would mean t h a t the s t a t e

could obtain a conviction, theoretically a t least, upon only inferences o f g u i l t ,

thereby short c i r c u i t i n g the c r i m i n a l burden o f proof.

The s t a t e could use

the more lenient burdens o f t h e civil c o u r t o f "preponderance o f the evidence",

or "clear and convincing evidence", and u n f a i r l y convict a defendant w i t h o u t
ever having proved the case.
This cannot be allowed t o happen.

Upon review, this court must hold

that:
I)

The evidence o f f l i g h t was n o t relevant;

2)

T h a t Batey, supra, and Hargrett, supra, were

81

n o t the proper basis f o r the decision t o a d m i t the

evidence o f f l i g h t ; and
3) That the t r i a l c o u r t erred i n i t s decision t o
a d m i t the evidence of f l i g h t .

B,

The Instruction o f Flight

I t was error f o r the t r i a l c o u r t t o give the instruction quoted above a t

page 32.

This instruction informed the jury t h a t the defendant must disprove

the inference of g u i l t or it is evidence of guilt.

The F i f t h C i r c u i t has held t h a t a jury instruction regarding f l i g h t , as
evidence of g u i l t , is justified only where the jury has access t o evidence
which supports an inference from a general consciousness o f g u i l t t o a specif i c consciousness o f g u i l t concerning the c r i m e charged.

United States v,

Myers, 550 F. 2d, 1036, 1049, 1050 ( 5 t h Cir., 1977) Cert. den. 439 US. 847.
When stopped i n Pensacola, Bundy was in possession of stolen c r e d i t
cards and had a stolen car ( R . 5176-5177).

Bundy was on the Federal

8ureau o f Investigation's ten most wanted l i s t in connection w i t h a kidnapping

conviction i n U t a h (RP. 28).

He had escaped f r o m Colorado.

Because of

Bundy's awareness of those charges against h i m , and the fact t h a t he was

a fugitive, an inference of consciousness o f g u i l t on his p a r t f o r the Leach
c r i m e cannot be sustained.
In Myers, the possibility o f intervening motivations f o r f l i g h t gave rise
t o the crucial requirement o f :
"It is the instinctive or impulsive character o f the
defendant's behavior like flinching t h a t indicates
fear of apprehension and gives evidence o f f l i g h t
such trustworthiness as i t pcssesses. The more
remote i n t i m e the alleged f l i g h t is f r o m the
commission or accusation o f an offense, the
greater the likelihood t h a t i t resulted f r o m something other than feelings o f g u i l t concerning t h a t
Myers, a t 1051.
offense.''

82

Bundy's f l i g h t f r o m the arresting o f f i c e r in Pensacola occurred many

days a f t e r the Leach disappearance and one month a f t e r the Chi Omega
offenses he was alleged t o have committed.

Any inference o f g u i l t f r o m the

f l i g h t f r o m L e e was too remote in t i m e to be relevant t o the crime charged.

Bundy's alleged f l i g h t f r o m Daws in Tallahassee is also unreliable.
There, Daws caught an individual he claims was Bundy in t h e a c t of another
crime.

I f any inference f o r f l i g h t may be drawn, it was the the individual

fled t o escape prosecution on t h a t c r i m e , and not the Leach crime.

The Myers, supra, decision i s consistent w i t h Florida Law.

Florida cases

involving jury instructions on f l i g h t as evidence o f g u i l t have defended the t r i a l

c o u r t ' s instruction on grounds t h a t the defendant's f l i g h t immediately ensued
the commission o f crime charged.

Villagelieu v. State, 347 So. 2d, 445 (Fla.

3rd D C A , 1977); Proffitt v. State, 315 So. 2d, 461 (Fla., 1975) a f f ' d per curiam

428 U.S. 242; Williams v, State, 268 So. 2d, 566 (Fla. 3rd DCA, 1972); Hargrett
v. State, supra.

Since there was inconclusive evidence as t o how long Bundy allegedly

may have been in the Lake City area, his case i s therefore more analogous
t c Barnes v, State, 348 So. 2d, 599 (Fla. 4th DCA, 1977).

In Barnes, the court

held improper a jury instruction on f l i g h t because o f the lack of any evidence

t h a t the defendant had f l e d the scene o f the crime.
Because the evidence was irrelevant t o show Bundy's guilty knowledge,
it was immaterial for any other use, and i t s prejudicial impact far outweighed

any theoretical probative value.

I t was improperly admitted, and because i t

was improperly admitted, the court should not have instructed the jury t o
consider it in i t s determination o f guilt.

The instruction given t o the jury was

in error because i t shifted the burden o f proof f r o m the state t o the defendant;
an unreasonable and unconstitutional result.

83

The evidence must be ruled irrelevant and the instruction improperly

given.

Accordingly, Bundy should be given a new t r i a l exclusive o f such

evidence.

THE TRIAL COURT ERRED IN

SENTENCING THE DEFENDANT TO
DEATH.

VII.

A, The Trial Court did not

establish that the crime was
especially heinous, a t roc ious
cruel.

In his w r i t t e n findings, the t r i a l judge found t h a t t h e v i c t i m had died

as a result of homicidal violence t o the neck region o f the body (RP. 189).
The c o u r t concluded t h a t the murder was, "...heinous,

atrocious and cruel in

t h a t i t was extremely wicked, shockingly evil, vile, and w i t h u t t e r indifference

t o human life."

(RP, 189-190)

Other than the finding o f the apparent f a t a l

wound, the c o u r t enumerated various f a c t s about the location o f the body

and physical condition when i t was found, and several i t e m s a f physical evidence.

The c o u r t enumerated no specific cause o f death, no details as t o

the acts t h a t preceded o r followed death, nor how cruel o r p a i n f u l the death
may have been f o r the v i c t i m , beyond a reasonable doubt.
The t r i a l c o u r t erred i n concluding t h a t death must be imposed i n this

case.

A l l f i r s t degree murders are heinous and cruel.

To constitute an

aggravating circumstance, the murder must be especially heinous and cruel.

It must be:

"...accompanied
by such additional acts as t o set the
c r i m e apart f r o m the n o r m of c a p i t a l felonies--the
conscienceless o r pitiless c r i m e which is unnecessarily
State v, Dixon, 283 So. 2d 1,
torturous t o the victim".
9 (Fla,, 1983) See also Tedder v, State, 322 So. 2 d , 808
(Fla., 1975)

84

The mere f a c t t h a t the murder occurred does n o t amount t o and should

n o t be used as an aggravating factor in this sentencing.

Dr. Lipkovic, the state's pathologist, testified t h a t , in his opinion, death

was a result o f a "...homicidal

(R. 4481)

(Emphasis supplied)

injury t o the neck region, type undetermined".

Neither Lipkovic nor Jack Duncan, an analyst

for the Florida Department o f Law Enforcement crime laboratory, coukl state
t h a t the death occurred in the hog pen where the body was found. ( R . 4444)
Therefore, the location and position o f the body and the surrounding physical
evidence should not be used t o conclude t h a t the death was heinous, cruel or
atrocious.
The t r i a l court did not point t o any facts t o support the finding t h a t
the death was "heinous, atrocious and cruel" in the common usage o f the
terms.

See Alford v, State, 307 So. 2d, 433 (Fla., 1975) c e r t . denied 96 S.Ct.

3227; 48 U. S. 912, 49 L.Ed2d 1221, reh. denied 97 S.Ct.

191, 429 U.S. 873,

So .L .Ed2d1 155.

The t r i a l court did not factually find t h a t the death was extremely
wicked or evil.

Therefore, i t could not conclude t h a t the death was heinous.

No facts proved t h a t the death was outrageously wicked or vile.

Therefore,

the c o u r t could n o t conclude t h a t the death was cruel, because no facts

w e r e presented t o show t h a t the death i n f l i c t e d a high degree of pain or

t h a t the perpetrator was indifferent t o o r enjoyed the suffering of the victim.

The court did not p o i n t t o a factual conclusion beyond a reasonable
doubt t h a t the alleged actual o r attempted sexual b a t t e r y took place as an
attendant circumstance of death.

The mere f a c t t h a t a sexual b a t t e r y may

have taken place a t some t i m e p r i o r t o , or a f t e r , the commission of the murder does not bring i t within the language of 0921.141, Florida Statutes-

85

The t r i a l court violated i t s o w n instructions t o the jury by elaborating

upon the location and condition o f the body.

The c o u r t ' s instructions t o the

jury were:
"The physical changes of the v i c t i m ' s body occurring a f t e r death cannot b e considered by you in
your determination o f whether the State has proved
beyond a reasonable doubt t h a t the capital c r i m e
was especially heinous, atrocious or cruel."
(RP. 135) (Emphasis supplied)
+

Y e t the c o u r t violated t h a t instruction by finding the c r i m e heinous,

atrocious and cruel based, in p a r t , upon the condition of the body.
c o u r t ' s finding

IIH"

The

was as follows

"Finding: The Court finds t h a t the v i c t i m was a

twelve-year-old female junior high school student
attending the Lake C i t y Junior High School. The
Defendant kidnapped her f r o m said junior high
school somewhere between 9:OO and 1O:OO a.m.
on February 9: 1978, and her deteriorated body
was found in a hog pen approximately f o r t y five miles f r o m the scene of the abduction on
A p r i l 7 , 1978. The v i c t i m died of homicidal
violence to the neck region of the body. A t the
t i m e the body was found, it was unclothed except
f o r a pullover shirt around the neck. There was
semen stains in the c r o t c h of her panties found
near the body. Blood was found on the blue jeans
found near her body. There w e r e tears and rips
in some o f her clothes. The Court finds this
kidnapping was, indeed, and murder was, indeed,
heinous, atrocious and cruel in t h a t it was extremely wicked, shockingly evil, v i l e and w i t h u t t e r indifference t o human life".
( R P . 189-190) (Emphasis supplied)
Such a finding was highly irrprcper in light of the instructions of the
court t o the jury,
The t r i a l court seems t o have based i t s findings o f aggravation entirely
upon the f i n a l argument of the State Attorney.

During the penalty phase,

State Attorney Blair urged the jury t o "imagine" what may have happened to
the v i c t i m between the t i m e she was abducted and the t i m e her body was

86

found.

(RP. 97-99)

The jury, and so the t r i a l c o u r t , were allowed and

encouraged t o base a conclusion upon what might have happened, rather than
being l i m i t e d t o only what was proved beyond a reasonable doubt by the evidence.

The imagination o f the ordinary man i s much more vivid than real

f a c t would be, and i t is clearly prejudicial f o r the t r i a l judge and jury t o

conclude t h a t the death sentence is warranted based upon the products of
their own imaginations or the suggestions of the state.
The t r i a l court, in i t s findings, set f o r t h no factual basis for i t s conclusion t h a t the death was heinous, atrocious, and cruel.

Since the court

lacked grounds f o r the finding t h a t the death was heinous, atrocious and
cruel, the sentence should not have been based upon this aggravating factor.
The sentence must be vacated and the case remanded f o r resentencing.
The Trial Court erred in finding that death occurred as a
result of homicidal injury to t h e
neck region of the victim,

B.

The t r i a l court, in i t s finding o f aggravation, concluded t h a t the vict i m had died as a result o f a homicidal injury t o the neck region.

(RP. 33)

The finding appears t o be based upon the testimony of Dr. Peter Lipkovic,
who testified t h a t death occurred, in his opinion, as a result of such wound,
type undetermined. ( R . 4481)

(Emphasis supplied)

This f a c t was controverted

by the defense witness, Dr. Joseph Burton, a Medical Examiner f r o m Atlanta,

Georgia, and an expert in forensic pathology. ( R . 6029-6055)
Dr. Burton testified t h a t no specific cause of death could be
determined f r o m the autopsy report on Kimberly Leach.

( R . 6045)

He agreed

w i t h general findings as t o the condition of the body, b u t could not conclude,

as Or. Lipkovic had done, t h a t the wound in the neck area was the cause o f

87

death.

Or. Burton further stated t h a t this loss of neck tissue on the body

could be reasonably explained by insect and small animal scavenging.

6046)

( R . 6045-

Furthermore, the alleged injury t o the neck could just as easily have

occurred a f t e r death.

( R . 6048)

Because the cause o f death and attendant circumstances were n o t

proved beyond a reasonable doubt, the t r i a l c o u r t could n o t conclude t h a t
death occurred as a result of this injury and then use the conclusion as an
aggravating f a c t o r in the penalty and sentencing phases o f this trial.
Accordingly, because this f a c t was n o t proved beyond a reasonable
doubt, the jury and the judge, by the c o u r t ' s own instructions, were precluded
f r o m considering this f a c t as an aggravating f a c t o r in support of a death sentence f o r Bundy. ( R P . 135 and 195)
Therefore, the sentence must be vacated and the case remanded f o r

resentenc ing .

C, The first two findings of

aggravating circumstances in the
trial courtfs sentence involved
t h e same convicted act and this
constituted an i mper missib le
doubling of aggravating circumstances,
In the t r i a l c o u r t ' s sentencing report, specific findings o f aggravating
and m i t i g a t i n g circumstances, as required by 0921.141, Florida Statutes, were
made.

(RP. 31-37)

The f i r s t t w o findings are reproduced below:

" A , t h a t the c r i m e f o r which the Defendant is t o

be sentenced was c o m m i t t e d while the defendant
was under sentence of imprisonment.

Finding: The unrefuted testimony established beyond a reasonable doubt t h a t the defendant was
under sentence f o r aggravated kidnapping in the
State of Utah, which had n o t been served, paroled
or pardoned.

88

B, t h a t a t the t i m e of the c r i m e f o r which he is

t o be sentenced, the defendant had been previously convicted of another capital offense or felony
involving the use o f or t h r e a t o f violence t o some
person.

Finding: The unrefuted testimony established

beyond a reasonable doubt t h a t the defendant
had been convicted of the c r i m e o f aggravated
kidnapping in the State of Utah and t h a t it
was a c r i m e involving the use of or threat o f
violence t o some person."
(ap. 3 1 )
In Provence v, State, 377 So. 2d 783 (Fla,, 1976), the Florida Supreme
Court quashed a sentence o f death f o r a murder c o m m i t t e d i n the course o f
an armed robbery.

The t r i a l c o u r t in Pravence found t h a t the f a c t o f

robbery established t w o aggravating factors, t o - w i t :

Commission of the rnur-

der i n the course of a robbery and commission f o r the purpose of pecuniary

gain.

Provence, a t 786, c i t i n g 1821 -141 (5)(d)(f),

Florida Statutes.

The

Provence court ruled t h a t , while the t w o factors constitute separate analyti-

cal concepts, they both referred in t h a t case t o the same aspect o f the
defendant's crime.

As such, the f a c t o f robbery could only validly be

considered as one aggravating circumstance.

The principle enunciated i n

Provence has been consistently followed in Florida capital cases.

State, 414 So. 2d, 185, 188 (Fla., 1982);

(Fla., 1982)

1982); Armstrong v. State, 399 So. 2d, 953, 962,

1981); Sireci v. State, 399 So. 2d, 964, 971 (Fla., 1981); Maggard v.

State, 399 So. 2d, 973, 977 (Fla., 1981);

1980);

Vaught v. State, 910 So. 2 d , 147, I50

Francois v. State, 407 So. 2d, 885 (Fla., 1982); Welty v. State,

402 So. 2d, 1159, 1164 (Fla.,

(Fla.,

Quince v.

Palmes v. State, 397 So. 2d 648 (Fla.,

Gafford v. State, 387 So. 2d 333, 337 (Fla., 1980); Harvard v. State,

375 So. 2d, 833, 934 (Fla., 1977),

In the instant case, as in Provence, and i t s progeny, the same operative f a c t was held t o constitute t w o aggravating circumstances.

89

A Utah

conviction f o r aggravated kidnapping was held t o provide b o t h the status o f

being under sentence f o r a p r i o r conviction and a previous conviction of a
c r i m e involving the use of or t h r e a t of physical violence. ( R . 1637)
also 8921 -141 (5)(a)(b),

See

Florida Statutes.

As such, Bundyls sentence is illegal and should be vacated and his case
remanded t o the t r i a l c o u r t f o r resentencing.

D. The trial court erred in

admitting the testimony of
Michael James Fisher to
prwe an aggravating factor
in the penalty phase.
During the penalty phase, the State o f f e r e d the testimony o f Michael
James Fisher, an investigator f o r the D i s t r i c t A t t o r n e y ' s O f f i c e in Aspen,
Colorado, t o prove t h a t the defendant had escaped f r o m j a i l in Aspen, Colorado.

Mr. Fisher's testimony was o f f e r e d t o prove t h a t :

(I)

The defendant,

Bundy, had been under a sentence in Utah; and (2) t h a t the defendant, Bundy,
had been transported t o Aspen, Colorado, t o face additional charges; and

(3) t h a t the defendant, Bundy, was in the G a r f i e l d County Jail a t Glenwood

Springs, Colorado, a t some t i m e ; and (4) t h a t a t some t i m e a f t e r the defendant was placed in t h a t j a i l , he was no longer there. (RP. 28-28)
The defense objected t o the use of an investigator's testimony f o r this
purpose.

The defense contended t h a t unless the State used the testimony of'

the jailer and the f i n g e r p r i n t record of Bundy when he was placed in the
j a i l , any testimony o f f e r e d would b e inadmissible heresay.
The t r i a l c o u r t overruled the objection by the defense and allowed the
investigator t o t e s t i f y as t o his second-hand knowledge.
incompetent and rank hearsay.

This testimony was

The investigator did n o t have custody o f

90

Bundy a t the t i m e o f any alleged escape.

The investigator did n o t o f f e r

evidence t o prove t h a t Bundy was the person held in custody in Colorado, and
could only have t e s t i f i e d t o the investigation of various activities of Bundy .
As a t least one Florida case has held, evidence t h a t a person had been
in t h e custody o f the warden as an inmate p r i o r t o his alleged escape does

not constitute p r o o f either t h a t , such custody was lawful, o r t h a t the defendant was the person c o m m i t t e d t o the state prison.

Fulford v, State, 113 So.2d

572 (Fla., 2d DCA, 1959)

As applied t o the instant case, the testimony o f the investigator could
n o t be used t o prove t h a t Bundy was i n l a w f u l custody o r t h a t Eundy was
the same man who was i n custody i n Colorado and Utah.

The State had com-

p e t e n t testimony available; the jailer who allegedly booked Bundy and the
f i n g e r p r i n t c a r d f r o m the jail in Colorado.

The s t a t e a t t e m p t e d t o short-

c i r c u i t the burden o f p r o o f by using incompetent testimony.

Therefore, the

state should n o t have been allowed t o prove, as an aggravating f a c t o r , the

alleged escape by Rundy.
Accordingly, the sentence should be vacated and the case remanded t o
the t r i a l c o u r t f o r resentencing.

E. The trial court erred in denying

the Defendant's Motion to Enter
Life Sentence on verdict and t o prohibit penalty phase of trial.

The defense filed a m o t i o n t h a t would have prevented the c o u r t f r o m

convening the penalty phase and f r o m returning a death sentence.
14842)

(RP. 14840-

The m a t i o n stated t h a t the defendant was unconstitutionally forced

t o risk death in order t o exercise his r i g h t t o a jury t r i a l .

(RP. 14840-14842)

The m o t i o n was argued extensively and then denied by the t r i a l judge. (RP. 4-6)

91

It was e r r o r t o d e n y the motion.

Therefore, the sentence should be

vacated a n d a l i f e sentence imposed.

92

CONCLUSION
~~~

For the reasons set f o r t h in the foregoing arguments and citations o f

a u t h o r i t y , i t is respectfully submitted t h a t the conviction, judgment and

sentence o f Theodore Robert Bundy f o r the kidnapping and murder o f K i m b e r l y
Diane Leach should be vacated and set aside and the cause remanded f o r a
new t r i a l .
Respectfully submitted,

//,

"'counsel fd' Appellant

P. 0. Box 1450
Live Oak, Florida 32060
(904) 362-6930

CE RTlF ICATE OF SE RV ICE

I HEREBY CERTIFY t h a t a t r u e and c o r r e c t copy o f the foregoing

instrument has been furnished t o the A t t o r n e y General o f the State o f
Florida, The Capitol, Tallahassee, Florida, by hand on this 15th day o f
December, 1982.

xc:

Theodore Robert Bundy

93

APPENDIX

JUOGE/JURY ROLES IN CAPITAL PENALTY DETERMINATION

A Survey of National Legislative Practice, 1972-1981
Legends and Notations:

L - L i f e sentence unless jury unanimously agrees on death

Unanimous verdict required for either l i f e or death
U
M - Simple majority suffices for verdict of either l i f e or death
A - Alabama system: 10 jurors required for death, 7 jurors required for life
T - Unique Texas procedure: penalty jury answers special questions on deliberate nature of murder, probability defendant would engage in future
acts of dangerous violence, and (if raised) lack of provocation by victim,
12 jurors required to answer llyesll to each question for imposition of a
death sentence; 10 jurors suffice t o answer any question no and prevent death sentence,

1)

Jury L i f e Verdict Binding

ARKANSAS
CALIFORNIA
COLORADO
CONNECTICUT
DELAWARE
GEORGIA
ILLINOIS
KENTUCKY
LOUISIANA
MARYLAND
MASSACHUSETTS
MISSISSIPPI
MISSOURI
NEVADA
NEW HAMPSHIRE
NEW MEXICO
NORTH CAROLINA
OHIO
OKLAHOMA
PENNSYLVANIA
SOUTH CAROLINA
SOUTH DAKOTA
TENNESSEE
TEXAS
UTAH
V I RGI NIA
WASHINGTON
WYOMING
UNITED STATES
(Contd p. 2)

Crim. Code (1977) 941-1301 8 41-1302

Penal Code (1979) 1903-190-4
Rev, Stats. (1979) CumSupp. g16-11-103
Gen. Stats. Ann. (1979PckPt.) 853a-46a
Code Ann. (1977 CumSupp.) Ill-4209
Code Ann. (1977) 826-3102, 27-2302
Ann. Stats, (1979) 138-9-1
Rev, Stats. (1978 Cum. Supp.) 95321)25
Code o f CrProc.(pkt pt,1979) A r t - 905.8
Ann. Code (1978 Cum.Supp,) Art. 27, 8413
19?9 Chapter 488, %55
Code (1978 Curn.Supp,) 199-19-101
Crirn, Code (1979 SpecSamph.) 8565D06
Rev, Stats. (1977) l l 7 5 5 5 4
Rev. Stats. Ann. (1977 Supp.) a6305
Stats. Ann. (1979 Supp.) 31-20A-3
Gen. Stats, (1978) 515A-2000
Rev. Code (1981 Legislation, File 60)W29291124(a2)
Stats. Ann. (1978-1979 PckPt-) 121-701-11
A c t NO. 1978-1 41 : $18-1 311
Code Ann. (1978 CumSupp-) 116-3-20
State Laws 1979 Chapter 160: 323A-27A-4
Code Ann. (1978 CumSupp.) g39-2404
Code CrimProc. Art, 37D71
Crim. Code (1978) 976-3-207
Code (1979 CumSupp.) 1192-264.4
Rev, Code Ann- (1978 PckPt.) 810.94x)20
Stats. (1977) 6-4-1 02
49 USC 01473 (1976) (Antihijacking Act)

U
1
U
1
1

1
U
1
1
1
1

1
U
1

1
1
L
1
1

1
1

1
T
1
1

U
1

2.

Jurv L i f e Verdict Not Bindina

ALABAMA
FLORIDA
INDIANA

Senate Bill 241, 88-9 (1981)

Stats.Ann. (1977) 1921.I41
Stats-Ann, (1979) B35-50-2-9

3, Penaltv Determination bv Judads) Alone

ARIZONA
IDAHO
MONTANA
NEBRASKA

Rev.
Code
Rev.
Rev.

Stats. Ann. (I978 SuppPamph) I 13-454

(l978)( Cum Pck Supp -)PI1 9-251 5
Codes (I977 Interim Supp,) 1952206.6
Stats. (1975) d29-2520

A
M
U