IN THE SUPREME COURT OF FLORIDA

RODERRICK FERRELL, )
)
Appellant, )
)
vs. ) CASE NUMBER 93,127
)
STATE OF FLORIDA, )
)
Appellee. )
_____________________ )

APPEAL FROM THE CIRCUIT COURT

IN AND FOR LAKE COUNTY, FLORIDA

INITIAL BRIEF OF APPELLANT

JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL CIRCUIT

CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 0294632
112 Orange Avenue, Suite A
Daytona Beach, Florida 32114
(904) 252-3367
ATTORNEY FOR APPELLANT
 TABLE OF CONTENTS

PAGE NO.

TABLE OF CONTENTS i-iii

TABLE OF CITATIONS iv-xiv

STATEMENT OF THE CASE 2

STATEMENT OF THE FACTS 3

SUMMARY OF THE ARGUMENTS 20

ARGUMENTS

POINT I: 23
THE TRIAL COURT ABUSED ITS DISCRETION BY LIMITING
FINAL SUMMATION TO A MERE FORTY-FIVE MINUTES
RESULTING IN A DEPRAVATION OF APPELLANT’S
CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO
EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II: 34
APPELLANT’S DEATH SENTENCE IS CONSTITUTIONALLY
INFIRM AS WAS HIS PENALTY PROCEEDING WHERE THE
TRIAL COURT CROSSED THE LINE OF NEUTRALITY AND
IMPARTIALITY THUS DENYING FERRELL ESSENTIAL DUE
PROCESS BY DEPRIVING HIM OF THE APPEARANCE OF AN
UNBIASED MAGISTRATE AND AN IMPARTIAL TRIER OF
FACT.

POINT III: 41
THE TRIAL COURT ERRED IN LIMITING APPELLANT’S VOIR
DIRE EXAMINATION DURING JURY SELECTION, RESULTING
IN A DENIAL OF DUE PROCESS AND THE RIGHT TO A FAIR
TRIAL RENDERING FERRELL’S DEATH SENTENCE
CONSTITUTIONALLY INFIRM.

i
POINT IV: 46
THE TRIAL COURT ERRED IN PERMITTING A STATE
WITNESS TO TESTIFY TO HER OPINION AS TO WHAT
DEFENDANT MEANT BY HIS WORDS, IMPROPERLY
INVADING THE PROVINCE OF THE JURY AND RESULTING IN
A DENIAL OF HIS RIGHTS TO DUE PROCESS AND A FAIR
TRIAL BY JURY AS GUARANTEED BY THE FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND ARTICLE I, SECTIONS 9, 16, AND 22, OF
THE FLORIDA CONSTITUTION.

POINT V: 51
THE TRIAL COURT ERRED IN DENYING THE MOTION TO
SUPPRESS APPELLANT’S STATEMENTS TO AUTHORITIES IN
LOUISIANA FOLLOWING HIS ARREST, WHERE THE
STATEMENTS WERE OBTAINED IN VIOLATION OF
FERRELL’S CONSTITUTIONAL RIGHTS.

POINT VI: 62
THE COURT BELOW ERRED IN DENYING APPELLANT'S
MOTION FOR CHANGE OF VENUE, DUE TO THE PERVASIVE
AND PREJUDICIAL PUBLICITY WHICH SURROUNDED THIS
CASE AND INFECTED THE COMMUNITY FROM WHICH
APPELLANT'S JURY WAS SELECTED.

POINT VII: 67
THE TRIAL COURT ERRED IN ALLOWING EVIDENCE
MATTERS THAT HAD NO RELEVANCE BUT WERE
EXTREMELY INFLAMMATORY AND PREJUDICIAL.

POINT VIII: 69
THE TRIAL COURT ERRED IN FINDING THAT THE MURDERS
WERE COMMITTED IN A COLD, CALCULATED, AND
PREMEDITATED MANNER WITHOUT ANY PRETENSE OF
MORAL OR LEGAL JUSTIFICATION.
POINT IX: 74
THE TRIAL COURT ERRED IN FINDING THAT THE MURDER

ii
 OF NAOMA QUEEN WAS ESPECIALLY HEINOUS, ATROCIOUS,
OR CRUEL.

POINT X: 80
APPELLANT’S CRIMES ARE NOT THE MOST AGGRAVATED,
LEAST MITIGATED FIRST-DEGREE MURDERS IN THIS
STATE. A PROPER WEIGHING OF THE VALID AGGRAVATING
FACTORS AGAINST THE SUBSTANTIAL MITIGATION
SHOULD RESULT IN A SENTENCE OF LIFE IN PRISON
WITHOUT POSSIBILITY OF PAROLE.

POINT XI: 85
CAPITAL PUNISHMENT OF A 16-YEAR-OLD CHILD OFFENDER
VIOLATES INTERNATIONAL LAW AND THE CONSTITUTION
OF FLORIDA AND THE UNITED STATES.

CONCLUSION 95

CERTIFICATE OF SERVICE 95

iii
 TABLE OF CITATIONS

CASES CITED: PAGE NO.

Adams v. State
585 So.2d 1092 (Fla. 3rd DCA 1991) 29

Allen v. State
636 So.2d 494 (Fla.1994) 93

Baldwin v. Franks
120 U.S. 678, 683 (1887) 88

Bell v. Harland Rayvals Transport, Ltd.

501 So. 2d 1321 (Fla. 4th DCA 1986) 29

Blanco v. State
452 So.2d 520 (Fla. 1984) 72

Branch v. State
96 Fla. 307, 118 So. 13, 15 (1928) 49

Buford v. State
403 So.2d 943 (Fla. 1981) 78

Cannady v. State
427 So.2d 723 (Fla. 1983) 72

Castro v. State
547 So.2d 111, 115 (1989) 68

Cheshire v. State
568 So. 2d 908, 912 (Fla. 1990) 75

iv
Cheshire v. State
568 So.2d 908 (Fla. 1990) 78

Crosby v. State
97 So.2d 181 (Fla. 1957) 35

Cross v. State
103 So.2d 636, 89 Fla. 212 (1925) 41

Dade County Classroom Teachers Ass’n v. Legislature

269 So.2d 684, 686 (Fla.1972). 93

DeConingh v. State
433 So.2d 501, 503 (Fla. 1983) 55

Dept. of Labor & Employment

Div. of Workers’ Compensation v. Bradley
636 So.2d 802, 809 (Fla. 1st DCA 1994) 48

DeSanchez v. Banco Central De Nicaragua

770 F.2d 1385, 1397 (5th Cir. 1985) 85

Dixon v. State
13 Fla. 636 (1869) 49, 75

Doerr V. State
383 So.2d 905 (Fla. 1980) 57

Drackett Products Co. v. Blue

152 So.2d 463, 465 (Fla. 1963) 48

Drake v. State
441 So.2d 1079 (Fla. 1983) 57

Elam v. State
636 So.2d 1312 (Fla. 1994) 76

Elkins v. United States

v
364 U.S. 206 (1960) 59

Espinosa v. Florida
505 U.S. 1079 (1992) 74, 75

Estes v. Texas
381 U.S. 532 (1965) 62

Fillinger v. State
349 So.2d 714, 715 (Fla. 1979) 56

Foster v. State
24 Fla.L Weekly D1039 (4th DCA April 28,1999) 39

Foster v. State
464 So.2d 1214 (Fla. 3rd DCA 1985) 29

Frazier v. State
107 So.2d 16, 21 (Fla. 1958) 56

Gaskin v. State
591 So.2d 917 (Fla. 1991) 64

Gibbs v. State
193 So.2d 460 (Fla. 2d DCA 1967) 41

Halliwell v. State
323 So.2d 557 (Fla. 1975) 79

Hamilton v. State
678 So.2d 1228 (Fla. 1996) 78

Hawaii v. Standard Oil Co. of California

405 U.S. 251, 257 (1972) 91

Hegwood v. State

vi
575 So.2d 170 (Fla.1991) 93

Hickey v. State
484 So.2d 1271 (Fla. 5th DCA 1986) 30

Hodge v. State
26 Fla. 11, 7 So. 593, 595 (1890) 49

Holden v. Holden
667 So.2d 867 (Fla. 1st DCA 1996) 48

Holsworth v. State
522 So.2d 348 (Fla. 1988) 79

Huckaby v. State
343 So.2d 29 (Fla. 1979) 78

Igartua De La Rosa v. U.S.

32 F.3d 8, 11 fn.1 (1st Cir. 1994) 92

Irvin v. Dowd
366 U.S. 717 (1961) 62, 64

J.F. v. State
718 So.2d 251, 252 (Fla. 4th DCA 1998) 39

Jones v. State
332 So.2d 615 (Fla. 1976) 78

Jones v. State
378 so.2d 797 (Fla. 1st DCA 1980) 41

Kane v. State
481 So.2d 546 (Fla. 5th DCA 1986) 30

Keene v. State

vii
390 so.2d 315,319 (Fla. 1980) 41

Kight v. State
512 So.2d 922, 929 (Fla. 1987) 48

Lee v. State
24 Fla.L.Weekly D736-738 (1st DCA March 19, 1999) 49

Lustig v. United States

338 U.S. 74, 79 (1949) 59

Manning v. State
378 So.2d 274, 276 (Fla. 1979) 65

Mapp v. Ohio
367 U.S. 643 (1961) 59

May v. State
89 Fla. 78, 103 So. 115, 116 (1925) 27

Mayola v. Alabama
623 F. 2d 992, 997 (5th Cir. 1980) 63

McCaskill v. State
344 So. 2d 1276, 1278 (Fla. 1977) 62

McFadden v. State
24 Fla.L Weekly D1040 (4th DCA April 28, 1999) 39

Merchn v. State
495 So.2d 855 (Fla. 4th DCA 1986) 39

Missouri v. Holland
252 U.S. 416 (1920) 88

Munez v. State

viii
643 So.2d 82 (Fla. 3rd DCA 1994) 29

Murphy v. Florida
421 U.S. 794 (1975) 62

Neal v. State
451 So.2d 1058 (Fla. 5th DCA 1984) 30

Pietri v. State
644 So. 2d 1347, 1352 (Fla. 1994) 62

Pittman v. State
440 So.2d 657 (Fla. 1st DCA 1983) 30

Porter v. State
564 So.2d 1060 (Fla. 1990) 78

Proffitt v. Florida
428 U.S. 242 (1976) 75

Richardson v. State
604 So.2d 1107, 1109 (Fla. 1992) 76

Rideau v. Louisiana
373 U.S. 723 (1963) 62

Rodriguez v. State
472 So.2d 1294 (Fla. 5th DCA 1985) 30

Ross v. State
474 So.2d 1170 (Fla. 1985) 79

Santos v. State
591 So.2d 160 (Fla. 1991) 78

Satz v. Perlmutter

ix
379 So.2d 359, 360 (Fla.1980) 92, 93

Scott v. Barfield
202 So.2d 591, 594 (Fla. 4th DCA 1967) 47

Scott v. State
494 So.2d 1134 (Fla. 1986) 77

Sheppard v. Maxwell
384 U.S. 333 (1966) 62

Simon v. State
5 Fla. 285, 296 (1853) 55

Singer v. State
109 So.2d 7, 14 (Fla. 1959) 65

Snipes v. State
651 So.2d 108 (Fla. 1995) 57

Sochor v. Florida
504 U.S. 527 (1992) 74-76

St. Louis v. State

584 So.2d 180 (Fla. 4th DCA 1991) 68

Stanford v. Kentucky
492 U.S. 361 (1989) 93

State ex rel. Davis v. Parks

141 Fla. 516, 519-520, 194 So.613, 615 (1939) 35

State In the Interest of Dino

359 So.2d 586 (La.1978) 58

State v. Dixon

x
283 So.2d 1, 9 (Fla. 1973) 74

Stockton v. State
544 So.2d 1006 (Fla. 1989) 29

Straight v. State
397 So.2d 903, 908 (Fla. 1981) 68

The Paquete Habana

175 U.S. 677, 700 (1900) 90

Thompson v. Oklahoma
487 U.S. 815 (1988) 93

Thompson v. State
548 So.2d 198, 204 (Fla. 1989) 55

Tillman v. State
591 So.2d 167, 169 (Fla.1991) 93

Traylor v. State
596 So.2d 957, 964 (Fla. 1992) 54, 55

United States v. Belmont

301 U.S. 324 (1937) 88

United States v. Clutter

914 Fed 2d 775 (C.A. 6 Ky. 1990) 61

United States v. Comstock

805 Fed. 2d 1194 (C.A. 5 Tex. 1986) 59

United States v. Eastland

989 Fed 2d. 760 (C.A. 5 Tex.1993) 60

United States v. P.H.E., Inc.

xi
965 Fed.2d 848, 859 (C.A. 10 Utah 1992) 60

United States v. Sutherland

929 Fed 2d 765 (C.A. 1 Mass. 1991) 61

Walls v. State
641 So.2d 381 (Fla. 1994) 69

Weinberger v. Rossi
456 U.S. 25, 29 (1982) 88

Williams v. State
143 So.2d 484, 488 (Fla. 1962) 35

OTHER AUTHORITIES CITED:

Section 39.01(10), Florida Statutes (1997) 89
Section 90.604, Florida Statutes 46
Section 90.701, Florida Statutes 48

Amendment IV, United States Constitution 23, 59

Amendment V, United States Constitution 23, 24, 45, 46
Amendment VI, United States Constitution 23, 24, 45, 46, 62
Amendment VIII, United States Constitution 23, 24, 45, 93
Amendment XIV, United States Constitution 23, 24, 45, 46, 59, 93
Article I, Section 16, The Florida Constitution 23, 24, 45, 46, 93
Article I, Section 17,The Florida Constitution 23, 24, 45, 93
Article I, Section 2, The Florida Constitution 24, 93
Article I, Section 22, The Florida Constitution 23, 45, 46
Article I, Section 9, The Florida Constitution 23, 24, 45, 46, 55, 93
Article VI, Section 2 (The Supremacy Clause)
United States Constitution 88

Florida Criminal Rule of Procedure 3.281 44, 66

Florida Evidence, §701.1 (1998 Edition) 46
Florida Rule of Criminal Procedure 3.300(b) 41

xii
Restatement (Third) of the Foreign Relations Law
of the United States Section 313 (1987) 88

138 Congressional Record

Section 4781-01, Section 783-84
(daily edition, April 2, 1992) 87

American Convention on Human Rights

Article 4(5) 85

American Declaration of the Rights and Duties of Man

Articles I and II 85

Convention on the Rights of the Child

Article 37 85

Fourth Geneva Convention of 12 August 1949

Relative to the Protection of Civilian Persons
in Time of War, Article 68 85

International Covenant on Civil and Political Rights

Article 6(5) 85, 86

Safeguards Guaranteeing Protection of the Rights

of Those Facing the Death Penalty
Safeguard 6 85

The Convention on the Rights of the Child;

Report of the Third Committee on Agenda Item 108
U.N. GAOR, 44th Session, Annex, Agenda item 108
at 15, U.N. Doc. A/44/736 (1989). 89

United Nations Standard Minimum Rules

for the Administration of Juvenile Justice
(“The Beijing Rules”), Rule 17.2 85

V. Streib, “The Juvenile Death Penalty Today:

xiii
Death Sentences and Executions for Juvenile Crimes
January 1973-October, 1998,” page 7 86

Ved P. Nanda, “The United States Reservation to the Ban

on the Death Penalty for Juvenile Offenders:
An Appraisal Under the International Covenant on
Civil and Political Rights,” 42 DePaul L.Rev. 1311, 1331-32 (1993) 87

William A. Schabas, “Invalid Reservations to the International

Covenant on Civil and Political Rights:
Is the United States Still a Party?,”
21 Brook.J.Int’l.L. 277, 318-19 (1995) 87

“Report of the Special Rapporteur on Extrajudicial,

Summary or Arbitrary Executions,”
Bacre Waly Ndiaye 87

xiv
 IN THE SUPREME COURT OF FLORIDA

RODERRICK FERRELL, )
)
Appellant, )
)
vs. ) CASE NO. 93,127
)
STATE OF FLORIDA, )
)
Appellee. )
________________________ )
PRELIMINARY STATEMENT

The record on appeal consists of 31 volumes. The first twelve volumes contain

2302 pages numbered consecutively. The remaining 19 volumes contain the trial

transcript with the pages numbered consecutively from 1 to 3648. This portion of the

record will be referred to using a roman numeral to designate the volume and the

appropriate pages therein. The record also includes a supplemental record with

consecutively numbered volumes from one to seven and numbered from page 1

through page 575. Counsel will refer to the supplemental record the same way, but

with the volume number preceded by “SR” to distinguish these cites from the original

record on appeal.

1
 STATEMENT OF THE CASE

On December 17, 1996, a Lake County grand jury indicted Roderick Justin

Farrell, the Appellant, and Howard Scott Anderson, charging each with one count of

armed burglary and one count of armed robbery. Additionally, the indictment charged

the Appellant alone with two counts of murder in the first degree. The indictment

charged Charity Lynn Keesee and Dana Lynn Hooper with one count each of principal

to armed burglary and principal to armed robbery. The indictment charged Keesee,

Hooper, and Anderson with two counts of principal to murder in the first degree. (I

20-23)

Roderrick Ferrell, the appellant, was the first of the group to go on trial. After

selecting a jury to hear the case, appellant had a change of heart and pleaded guilty to

all four counts as charged. (XXI 1701-20) The jury convened at a subsequent date for

a penalty phase after hearing the evidence, the jury returned with a unanimous

recommendation that Ferrell should die in Florida’s electric chair as to each of the two

murders. (XXX 3467) Following a Spencer1 hearing (XXX-XXXI 3475-3618) the

trial court sentenced Ferrell to die for each of the murder convictions. (XI 2057-74)

On May 22, 1998, appellant filed a notice of appeal. (XII 2180-81) This brief

follows.

Spencer v. State, 615 So.2d 688 (Fla. 1993).

1

2
 STATEMENT OF THE FACTS

Facts of the Crimes

On the night of Friday, November 22, 1996, the appellant, Roderrick Ferrell,

along with his three co-defendants, Scott Anderson, Dana Cooper, and Charity

Keesee, left Murray, Kentucky for Eustis, Florida. Ferrell had lived in Eustis where

he attended the ninth grade before moving back to Murray, Kentucky. (XXII 1953-

56) After moving back to Kentucky, Ferrell had kept in touch with several of his

Florida friends. Heather Wendorf, the daughter of the murder victims, was one of

those continuing relationships. After Ferrell had moved from Florida to Kentucky,

Heather Wendorf repeatedly wrote and called him. Heather told Ferrell that her

parents were abusing her. She expressed a desire to run away from home and/or

wished her parents dead. (XXVII 2957-59, XXVIII 3040-41, 3108-10, 3114)

After arriving in Eustis, Ferrell and his Kentucky clan visited the home of

Shannon Yohee on Sunday afternoon. There, he spoke to Jeanine LeClaire and

Heather Wendorf. He knew all three girls from his days of living in Eustis. Ferrell

then visited the home of Audrey Presson, another friend. (XXV 2548-53, XXII 1953-

58) Ferrell asked Presson if she wanted to leave Eustis with him. He explained that

he was in town on some unfinished business. However, no one in the group said

anything about killing anyone. (XXII 1959-61, 1968-69)

3
 The next day, Monday, November 25, 1996, Ferrell and his companions had a

flat tire while driving in the Eustis area in Scott Anderson’s mother’s car. (XXVI

2729) They decided that they needed to leave Eustis that evening. The group returned

to Shannon Yohee’s house and called Jeanine LeClair and Heather Wendorf to inform

them of the imminent departure. During the group’s visit, Yohee heard Ferrell make a

statement that he was going to kill Heather’s parents so that they could steal their car

and leave town. (XXV 2556-58) Ferrell spoke to Heather Wendorf by telephone,

drew a map to her house from her directions and then left the Yohee residence.

(XXV 2553-56, 2561-62)

The group drove to Heather Wendorf’s neighborhood and met her down the

road from her home. The three girls, Heather Wendorf, Dana Cooper, and Charity

Keesee, went to visit Heather’s boyfriend and to pick up Jeanine LeClair. Ferrell and

Scott Anderson were to meet the girls at Jeanine’s house after stealing the Wendorfs’

money and vehicle. They armed themselves with a stick that Ferrell referred to as a

“quarter staff” in case they needed it to defend themselves during the burglary. Ferrell

and Anderson reached the Wendorf home a few minutes later. They entered through

an unlocked garage where they searched to find a better weapon. Their plan was to

“hog tie” Heather’s parents and rob them. They may have discussed the possibility of

“taking out” the victims if they fought back during the burglary. (XXVI 2765) They

4
did not know Mr. Wendorf’s size. As a precaution, Ferrell armed himself with a

crowbar from the garage. (XXVI 2758-71)

When the pair entered the home, Richard Wendorf was lying on the couch in

front of a blaring television. Naoma Queen was taking a shower in another part of the

house. Scott Anderson disconnected the telephone from the wall. Ferrell approached

Richard Wendorf (who may have been asleep) and raised the crowbar over his head.

Ferrell proceeded to strike Wendorf’s head repeatedly with the crowbar. (XXVI

2771-73) Richard Wendorf died as a result of blunt impact to the head with skull

fractures and brain lacerations. Richard Wendorf suffered no defensive wounds. The

position of his body was consistent with the fact that he was completely unaware of

the attack. (XXII 1989-99, XXIII 2000-23, 2049-56)

Anderson and Ferrell then began to search the house for money and the keys to

the Wendorf’s Explorer. Ferrell explained that they were trying to find the keys and

get out of the house before Naoma Queen got out of the shower. (XXVI 2774)

Unfortunately, appellant’s plan failed. Naoma Queen encountered the intruders when

she walked into the kitchen. Queen reacted by throwing a cup of scalding hot coffee

onto Ferrell. She also scratched and clawed his face and fought him. Ferrell

responded by beating her into submission and ultimately to death. (XXVI 2732,

2774-78) Naoma Queen died as a result of chop wounds of blunt impact to her head

5
which resulted in skull fractures and brain laceration. Queen’s brain stem was severed

which resulted in almost instantaneous death. Queen did suffer wounds on her hands

and arms which were consistent with defensive wounds. (XXIII 2048-52)

After the murders, Ferrell and Anderson searched the house for valuables,

money, and keys. They took a credit card from the body of Richard Wendorf. Ferrell

and Anderson then left the house in the Wendorfs’ Explorer. (XXVI 2780-82) They

met Cooper, Keesee, and Heather Wendorf as the girls were returning to the

Wendorfs’ neighborhood. The entire group then left Eustis in both vehicles and

traveled to Sanford, Florida, where they abandoned the Buick. They switched the

license plates so that the Explorer bore the Kentucky plate of the Buick and vice-

versa. (XXVI 2788) All five then drove the Explorer west to New Orleans,

Louisiana. Along the way they used Richard Wendorf’s Discover credit card to buy

gasoline and a knife from a Walmart in Crestview, Florida. (XXV 2595-98)

When they reached Baton Rouge, Louisiana, Charity Keesee phoned a relative.

Keesee’s relative tipped off the authorities and the group was arrested without

incident. (XXVI 2789-93) The appellant agreed to cooperate with the police if they

allowed him to visit with Charity Keesee, his girlfriend. In statements to Louisiana

authorities and to Florida detectives, Ferrell took most of the blame for the crimes.

(XXVI 2720-2823) Ferrell subsequently pled guilty as charged and the case

6
proceeded to a penalty phase. (XXI 1701-1726)

The State’s Case for Aggravation

Based on the circumstances of the murders, the state argued, and the trial court

agreed, that the murders were committed in the commission of an enumerated felony;

that the murders were committed in a cold, calculated, and premeditated manner

without any pretense of moral or legal justification; and that the murders were

committed for pecuniary gain. (XI 1952-53) The trial court subsequently found that

the “pecuniary gain” factor merged with the factor dealing with “during the course an

enumerated felony.” (XI 2059-60)

The state also convinced the trial court that the circumstances of Naoma

Queen’s murder were especially heinous, atrocious, or cruel (HAC). The state did not

argue nor did the trial court find that the murder of Richard Wendorf was HAC. (XI

1952-53, 2060) Finally, based on the simultaneous convictions for the murders of two

separate victims, the trial court found that Rod Ferrell was “previously” convicted of

another capital felony or of a felony involving the use or threat of violence. (XI 2059)

Facts in Mitigation2

Rod Ferrell, a boy of only 16, on November 25, 1996 when Richard Wendorf

2
The facts in this section are taken verbatim from the sentencing judge’s
findings of fact in support of the imposition of the death penalty. Any errors are in the
original.
7
and Naoma Queen were killed, was born in the small college town of Murray,

Kentucky on March 28, 1980. His mother is Sondra Gibson, who was only 17 when

Rod was born, and his father is Rick Ferrell who also was only a teenager. Rod’s

father and mother did not marry until Rod was 9 days old. Within a few weeks they

broke up and Rod remained with his mother. His father entered the military and filed

for a divorce through a local attorney in Murray. His father spent little time with Rod

as he was growing up. The last time he saw “the child” as he referred to him during

his entire testimony, was when Rod was about eight years old. His paternal

grandmother, Betty Jean Ferrell testified that she had gone back to court when he was

a small child to obtain court order visitation with “Roddy” as she fondly referred to

him. She described him as a “sweet boy” whom she loved dearly, and but for the

interference of his mother, she believes she could have made a difference in his life.

She had not seen Rod since he was about eight either. Sondra Gibson, Rod’s mother,

was described by these two witnesses as manipulating and prone to making up stories,

fits of temper which made it nearly impossible to have a relationship with the young

boy. His father stated that he finally just gave up trying to have a relationship with his

son. Rod’s father since joining the armed forces had completed a bachelor and

masters degree in aviation technology and was employed in the airline insurance

business.

8
 After Rod was born, his mother lived with her parents, Rosetta and Harrell

Gibson. Mr. Gibson’s employment moved the family from Murray, Kentucky to

central Florida and back several times while Rod was growing up. The first move

brought the Gibsons to the Winter Garden area. It was at this time that Rod allegedly

fell ill with what was diagnosed as encephalitis, although no medical records could be

located regarding that illness. The mother testified that Rod had suddenly become ill

and the child was taken to a nearby hospital. According to the mother the doctors told

the mother that he might not survive the night. This information was provided by the

family to Dr. Meyer for his evaluation. He determined that it would not be likely that

a medical professional would tell a family that their child might not survive unless it

was really a severe illness. Dr. Meyer also concluded that this illness could be related

to the onset of some of the symptoms of bizarre behavior that Rod had manifested

over the months prior to November 25, 1996.

The next move was back to Murray, Kentucky. It was during this period that

Rod spent time with his paternal grandmother two times per week in the after noon.

He was also exposed to his paternal grandfather, who it was documented suffered from

the debilitating mental illness of schizophrenia. It should be noted that the evidence

revealed that Rod was not related by blood to his paternal grandparents because his

father had been adopted. Although Dr. Meyer did suggest that the environmental

9
exposure of Rod to his paternal grandfather may have had an effect on him. Further, it

was during this time that Rod has stated on numerous occasions he was raped while on

a fishing trip with his grandfather, although the grandfather he has continuously

referred to with regard to the sexual abuse allegation is his maternal grandfather. This

evidence is supported by Rod’s Aunt who as a young teenager was sexually fondled by

her father. Rod has been consistent about his innocence being taken away at age 5.

He also relates being exposed to the occult at this age, having witnessed human

sacrifices during this time period, and being introduced to the Dungeons and Dragons

improvisational games. Both his mother and father have admitted that they freely

permitted this young child to play these fantasy games.

It was also during this time frame that Rod began a long time friendship with

Matt Goodman. He had also known Scott Anderson since second grade, but it was not

until this time period that he and Matt and Scott developed their fantasy games which

later became an enormous part of their everyday life. The fantasy games were based

initially on the Dungeons and Dragons games.

All through Rod’s young life he was described as a sweet boy, obedient, loving,

caring, and considerate. His mother would leave Rod on a regular basis with her

parents. However, they were not permitted to discipline Rod. She reserved that

authority for herself. She was often dancing in nightclubs, running the streets with

10
men, prostituting herself, and using drugs and alcohol. During the late 80's Rod lived

alone with his mother at the Southside Manor Apartments in Murray, Kentucky.

These are fully subsidized apartments and Sondra Gibson was living there rent free.

Rod was permitted to play his fantasy games all the time with his friends, using the

woods near their homes to engage in their battles and violent fantasy games.

Around the age of 10, Rod and his mother moved back to Florida and again

began living with her father and mother, on Lemon Avenue, in Eustis, Florida. Rod

attended Eustis Middle School and had begun Eustis High School when in December,

1995 the family again moved to Murray, Kentucky. When Rod lived in Eustis he was

described by his friends as a laid back kind of guy, nice and quiet. Audrey Presson

recalled Rod’s strawberry red hair that he wore in a pony tail. He dated Shannon

Yohee during this time period. Shannon identified pictures of her with Rod at Sondra

Gibson’s wedding to Darren Vraven in Daytona Beach in mid 1995. It was during this

time period that Rod began hanging around Heather Wendorf and Jeanine LeClair. In

December, 1995, Sondra Gibson walked into Rod’s room in their home and found

Jeanine LeClair, Rod and another young boy with the lights off and blood all over the

place. The kids had sliced their arms with a razor blade and were engaging in a blood

letting and crossing over ritual, commonly engaged in by members of vampire cults. It

was shortly after this incident that Rod was removed from school in Eustis and moved

11
again to Murray, Kentucky. When the family first arrived in Murray, Sondra, her new

husband, Rod lived once again with Darrell and Rosetta Gibson. Rod was enrolled in

Calloway County High School as a transfer into the 10th grade. It was also at this time

that Sondra and her new husband moved to Michigan. Rod was told by his new

stepfather that, “his mother was never coming back, so he might as well get used to

it.” Sondra Gibson cried during her testimony when she recalled learning of what her

son had been told. It upset her so much that she returned immediately to Murray,

Kentucky to be with her son and filed for a divorce from Darren Vraven. Sondra

Gibson admitted that Mr. Vraven was supplying her son with drugs and that she did

nothing to stop it. Ferrell also told law enforcement officials in Baton Rouge,

Louisiana that Vraven was a drug dealer. Rod’s mother also spoke of physical and

mental abuse by Vraven. In addition, there was testimony that Vraven was involved

in satanic worship and such rituals.

When Rod’s mother returned, she and Rod moved once again into the

Southside Manor Apartments on Broad Street in Murray, Kentucky. It was during this

time period that Rod’s behavior, in school and at home, and his outward appearance

began to transform from the normal teenager to a demonic, dark painted, creature that

walked the cemeteries at night, cutting himself so other could drink his blood, and

telling people he was a 500 year old vampire named Vesago. His school work became

12
non-existent. He violated school policy by failing to attend class, smoking cigarettes

on campus, and being openly defiant to his teachers and other school officials.

Stephen Murphy aka “Jaden” is also someone that Rod began to hang around with. It

was Stephen who crossed Rod over in to Vampirism, gave him the name Vesago, and

became his sire. Stephen Murphy was known in Murray as the “Prince of the City”.

April Doeden, a former girlfriend of Rod’s testified that on the night Murphy crossed

Rod over he couldn’t get to sleep, he cried and shivered all night long like a scared

little boy. April described how Rod’s mother would yell at him and blame him for

ruining her life saying that he was responsible for killing all of his unborn brothers and

sisters (children Sondra had lost through miscarriages), and that she wished he were

dead.

The school assistant principal tried to help Rod by getting him into counseling

at Calloway County High School with Marianne O’Rourke. Rod attended six sessions

with Ms. O’Rourke before he was expelled in April, 1996. Rod’s mother was

permitting him to stay out all night long with Murphy, use drugs, and not go to school.

She knew he was mutilating himself and yet through all of these distinct and obvious

signs, and against the advice of Ms. O’Rourke she did not seek to hospitalize this

young boy. Also at this time, Rod was having telephone conversations long distance

with Heather Wendorf and Jeanine LeClair. The first time someone overheard

13
Heather tell Rod she wanted him to get rid of her parents was in late spring of 1996.

April Doeden overheard Heather tell Rod that her parents were hurting her and that

she wanted him to come get her, but he would have to kill them, because they would

never let her go. Along with his relationship with April, Rod developed a relationship

with a young girl by the name of Charity Keesee who attended his high school. It was

an incident involving his comforting Ms. Keesee and a teacher named Stonecipher

approached and directed him to go to class that led to his expulsion from school. He

responded that her command was shitty.

In May, 1996, Sondra took her son to an evaluation with the Kentucky Mental

Health and Retardation Board in Murray. The social worker, Debra Mooney spent at

most 45 minutes with Rod and then 15 minutes with his mother, although she is not

sure if she only spent 30 minutes with Rod and 30 minutes with his mother. She

described Rod as all dressed in black with black nail polish, black hair, and makeup.

That he was engaging in self-mutilation and he felt persecuted by society. She noted

that she felt the mother and son were minimizing the need for psychological help.

There was no testing or releases obtained to complete the evaluation on that date.

Tod’s next appointment was canceled by his mother, and he failed to show up to the

next two sessions. The next time Debra Mooney saw Rod was in early October, 1996.

She only saw him for 15 minutes because, as she stated, she didn’t think Rod was

14
going to show up, so she filled in his appointment slot with a patient who was suicidal.

During the Summer of 1996 Rod’s mother engaged the assistance of the

Division of Child Services and had Rod declared an uncontrollable minor. However,

once again, Sondra Gibson minimized and lied for her son so that he could avoid

getting a job, going to counseling, and his overall participation in the real world. He

was continuing to use drugs regularly during this time.

In addition, Sondra Gibson had been writing love letters to the 14 year old

brother of Stephen Murphy, trying to solicit him to cross her over and have her as his

vampire bride. She reported the Vampire cult information to the Department of

Children’s Services but they did not take any aggressive action. They appeared to be

acting upon the mother’s requests for assistance, and when the mother was lying for

Rod and assisting him in avoiding the requirements the Department had scheduled for

him, his illness seemed to become further exacerbated. In the summer of 1996, Rod

was sparing with Matt Goodman to prepare for a fantasy game they were going to play

later that evening and Rod kicked Matt in the teeth. Matt believed that this was

intentional. Since that time Rod’s relationship with Matt deteriorated. In September,

1996 Rod was attacked by Stephen Murphy. Rod was taken to Murray Calloway

County Hospital but refused treatment. His mother states that he was knocked

unconscious when Murphy threw him up against the wall. Stephen was charged and

15
sentenced for this offense. It was shortly after this incident that Sondra Gibson was

charged with soliciting a minor for the letters she had written to Murphy’s little

brother.

The Trial Court’s Conclusions Regarding Mitigation Circumstances

Based on the testimony and evidence at appellant’s penalty phase, the trial

court concluded that the defense proved three statutory mitigating circumstances.

Specifically, the trial court concluded that Ferrell committed the murders while he was

under the influence of extreme mental or emotional disturbance. Dr. Wade Meyer, a

psychiatrist specializing in the study of homicidal children and children involved in

the occult, concluded that Ferrell fit this particular circumstance. Dr. Harry Krop and

Dr. Elizabeth McMahon, two clinical psychologists, also reached the same conclusion.

(XI 2066-67) All three doctors concurred that, although Ferrell could appreciate the

criminality of his conduct at the time of the crimes, his ability to conform that conduct

to the requirements of the law was substantially impaired. This shortcoming was the

result of Ferrell’s significant childhood abuse, his schizotypal personality disorder, his

bizarre thought processes, and his excessive use of drugs and hallucinogens on the

night of the murders. (XI 2067) The third statutory mitigating factor found by the

trial court was Ferrell’s age of sixteen at the time of the crimes. Additionally, the trial

court accepted the fact that Ferrell had the emotional age of a three-year-old. (XI

16
2067)

The trial court found the following nonstatutory mitigating factors:

(1) Appellant suffers from schizotypal personality disorder

which has overlapping traits with schizophrenia.

(2) Rod Ferrell was abandoned and isolated from his real
father.

(3) Ferrell was raised in a single parent home by a mother

who failed to discipline him properly or to provide him
appropriate role models essential to his psychological
development.

(4) Ferrell’s only parent failed to provide him appropriate

role modeling essential for his psychological development.

(5) Rod was allowed to play violent, destructive fantasy

games which further impaired his ability to deal with reality
in an appropriate and adaptive manner.

(6) Rod Ferrell grew up in a dysfunctional family in which

the father was generally absent and the mother suffered
from an emotional disturbance.

(7) Ferrell lacked the attention, discipline, and role modeling of a

father figure.

(8) Ferrell felt persecuted by society.

(9) Ferrell suffers from the influences of vampirism and

practices of the occult.

(10) Ferrell has a history of multiple drug use and was

under the influence of drugs at the time of the crime.

(11) Ferrell suffered from encephalitis as a child.

17
 (12) Ferrell’s sense of self was significantly distorted which
distorted his interaction and his interpretation of his social
environment.

(13) Rod’s parents’ perceived attitudes toward him became

part of his consciousness, which was then his standard of
normalcy. As he grew his notion of the acceptability of
certain behavior was largely influenced by his family
conduct.

(14) As a result of child abuse, Ferrell suffered a low sense

of self, an inability to experience self love, sense of safety,
and the ability to trust. This made Rod prone to attention-
seeking behavior and manipulation by others. He also may
have been manipulated by Heather Wendorf in her plot to
kill her parents and run away.

(15) Ferrell was forced to witness the physical abuse of

others which impaired his functional development.

(16) Ferrell took responsibility for the crimes by

confessing immediately after his apprehension and pleading
guilty as charged.

(17) Rod Ferrell was sexually abused as a young child.

(18) Ferrell has adapted to a structured environment while

in custody and is capable of functioning in an open prison
environment.

(19) Ferrell will be removed from society for the rest of his life
with four consecutive life sentences.
(XI 2068-73)

18
 SUMMARY OF THE ARGUMENT

Ferrell initially contends that the trial court abused its discretion in allowing a

mere forty-five minutes for each side to summarize the evidence and advocate their

positions in closing argument. The jury heard a full six days of testimony consisting

of forty-three witnesses, with several of them testifying more than once. 137 exhibits

were introduced into evidence. Convincing a jury that a double homicide committed

by a mentally ill sixteen-year-old boy is not the most aggravated and least mitigated

first-degree murder is an extremely difficult task. It takes time to explain the concept

of mitigation to a jury much less the twenty-two mitigating factors actually found by

the trial court in this case. The trial court abused its discretion by arbitrarily and

unreasonably allowing only forty-five minutes for final summation.

Additionally, appellant’s trial judge departed from his position of cold

neutrality and exhibited at least the appearance of bias. In addition to arbitrarily and

unfairly restricting the time allowed for final summation, the court also restricted

appellant’s voir dire. Most egregious, the trial court provided race neutral reasons to

support the prosecutors’ peremptory challenge of one of the few African American

jurors on the panel.

The trial court unfairly limited the scope of voir dire by refusing to allow

defense counsel to explode a misconception held by many jurors, i.e. that life

19
imprisonment is more expensive than executing a citizen. The court also restricted

voir dire into pertinent areas of examination including jurors’ attitudes about smoking,

their ability to treat some first-degree murderers differently than others, and jurors’

attitudes about the death penalty.

Ferrell challenges the admissibility of his confession based upon the totality of

the circumstances and police misconduct. He was a sixteen-year-old boy without

significant experience in dealing with the criminal justice system. Police officers used

improper inducement in extracting Ferrell’s confession by agreeing to allow him to

see his girlfriend. Under the totality of the circumstances, Ferrell’s plea was not

voluntary. Additionally, Florida law enforcement was directly involved in extracting

Ferrell’s confession in violation of Louisiana law, the situs of the confession. This

type of police conduct is the reason the exclusionary rule was created.

Over objection, the trial judge allowed a witness to testify how she interpreted a

critical statement by Ferrell the day before the murders. Ferrell stated that he was in

town on “unfinished business.” The witness should not have been allowed to testify

what this meant to her. The jury was just as capable of interpreting Ferrell’s

statement.

Appellant also argues that the trial court should have granted his request for a

change of venue where the publicity was so pervasive and salacious that prejudice

20
could be presumed. Additionally, examination of the jury panel revealed actual

prejudice.

The trial court also allowed over objection evidence that Ferrell talked of a plan

to escape when he was in the juvenile facility awaiting trial. This was evidence of

collateral crimes which was not relevant and highly prejudicial. Additionally, Ferrell

challenges the applicability of the “heightened premeditation” aggravating factor as to

both murders and the heinous, atrocious, and cruel aggravating factor relating to

Queen’s murder. Finally, appellant points out that the crimes he committed are not

the most aggravated, least mitigated first-degree murders when compared to other

first-degree murders. This is especially true because Rod Ferrell was a mentally ill,

sixteen-year-old boy. His execution should be precluded as a matter of law.

21
 ARGUMENTS

Rod Ferrell discusses below the reasons which, he respectfully submits, compel

the reversal of his death sentence. Each issue is predicated on the Fourth, Fifth, Sixth,

Eighth, and Fourteenth Amendments to the United States Constitution, Article I,

Sections 9, 16, 17, and 22 of the Florida Constitution, and such other authority as is

set forth.

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION BY

LIMITING FINAL SUMMATION TO A MERE
FORTY-FIVE MINUTES RESULTING IN A
DEPRAVATION OF APPELLANT’S
CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND
TO EFFECTIVE ASSISTANCE OF COUNSEL.

The trial court limited defense counsel’s closing argument to a mere forty-five

minutes. With six full days of testimony, extensive physical evidence and a myriad of

issues to discuss, a mere forty-five minutes was woefully insufficient. Appellant had

offered evidence of three statutory mitigating factors as well as a plethora of

nonstatutory mitigating circumstances. The trial court’s ruling denied appellant his

opportunity to fully explain the concept of mitigation, much less the voluminous

evidence that established significant mitigating factors recognized by law and society.

Additionally, appellant had legitimate arguments against the aggravating circumstances

that the state sought to prove. Furthermore, defense counsel had legitimate arguments

22
regarding the doubling of two of the aggravators and the proper weight that the jury

should assign to certain aggravating factors. Finally, the severe time limitation

hindered appellant in his argument that a proper weighing of the valid aggravating

circumstances against the substantial mitigation should result in a sentence with life

imprisonment without possibility of parole rather than death by electrocution. The

trial court’s ruling denied appellant his constitutional right to effective assistance of

counsel, his right to a fair trial, his protection from cruel and unusual punishment and

his right to due process of law. These rights are guaranteed by the Fifth, Sixth, Eighth,

and Fourteenth Amendments to the United States Constitution and Article I, Sections

2, 9, 16, and 17 of the Florida Constitution.

The trial court clearly limited each side to forty-five minutes for closing

argument. The trial court stated on the record, “I intend to give both of you, over

noted objection, forty-five minutes each for closing, State first, Defense last.

(XXVII 2915) The trial court reiterated the forty-five time limit near the end of trial.

On Friday, February 20, 1998, the trial court excused the jury for the weekend. He

told the jury that they would begin Monday morning with closing arguments by the

lawyers. “This will take an hour and one half total. There are some things I can time

in this world, and those (sic) are times.” (XXIX 3328-29) Just before the start of

closing arguments, the trial court emphasized, “So we are clear, State is first, Defense

23
last, forty-five minutes a side.” (XXIX 3337) The record on appeal clearly reflects

that the sum total of both closing arguments was almost exactly ninety minutes. The

jury returned to the courtroom at 9:21 a.m. After preliminary instruction by the trial

court, the state presented closing argument which consumes twenty-seven pages of

transcript. (XXIX 3337-65) Defense counsel then presented closing argument

consisting of twenty-five pages of transcript. The court recessed at 10:55 a.m. (XXIX

3366-91)

Because there was clearly an objection to the time limitation, but none

appeared on the face of the record on appeal, this Court relinquished jurisdiction to

reconstruct the record in that regard. The trial court conducted two hearings. The trial

court stated that there was little doubt that defense counsel objected to the limitation

where the judge stated on the record, “over noted objection.” (SR VI 541-42, 552) It

is clear from both hearings that lead defense counsel, Candance Hawthorne, and Rod

Ferrell, the appellant, were the only trial participants who remembered any specifics

about appellant’s objection to the time limitation. Ferrell remembered a discussion

between defense counsel, the prosecutor, and the trial judge on the issue. (XXVII

2900) Ferrell remembered Ms. Hawthorne objecting to the forty-five minute time

limit as an insufficient time to explain the numerous nonstatutory mitigating

circumstances to the jury. Ferrell recalled Ms. Hawthorne requesting between ninety

24
minutes and two hours. The trial court responded that many of the nonstatutory

mitigating factors were “overlapping.” (SR VII 564-71)

Ms. Hawthorne did not specifically remember verbalizing an objection but did

remember concluding that forty-five minutes was woefully insufficient and that a time

limit of two hours was more realistic. She mentioned the large number of aggravating

circumstances that the state sought to prove and the “two dozen mitigators” that the

defense proved. (SR VI 545-46) She also mentioned the “truck load” of evidence

that had been admitted. (SR VI 546) Defense counsel testified that if she had more

time, she would have read several documents to the jury during closing arguments

instead of simply reminding them to look at these documents during deliberations.

(SR VI 546-47) Both lawyers for appellant remembered concluding that forty-five

minutes would not be enough time to sufficiently discuss the large number of statutory

mitigating circumstances. Appellant had argued, without success, that the trial court

should specifically instruct the jury regarding the nonstatutory mitigating factors that

were proved by the defense. When the trial court exercised its discretion and chose

not to specially instruct the jury, the defense lawyers knew that the allotted time

would be inadequate. (SR VI 547-48, 551-52) The trial judge controls the

courtroom. The trial court can set an appropriate limit on the time allowed for closing

arguments. However, a trial court can abuse its discretion in setting an unreasonable

25
time limit.

But the limitation of the time for argument must of

necessity within reasonable bounds, rest in the
discretion of the trial court. This is the general rule.
The right may be waived, but, when requested,
reasonable time must be allowed. The question to
be determined is what is reasonable time, and this
depends upon the facts and circumstances of each
case. No hard and fast rule can be prescribed. But,
if it appears that the time for argument is
unreasonably limited, such action will be held an
abuse of discretion, requiring a reversal of the
judgement for new trial.

May v. State, 89 Fla. 78, 103 So. 115, 116 (1925). In May, this Court held that a

twenty minute limitation of closing argument deprived the defendant of a fair trial

where he faced a possible twenty years in prison upon conviction. This Court also

pointed out that, although the facts at trial were not complicated, there were sharp

conflicts in the evidence on material issues. Both the state and the defendant called

several witnesses and the testimony at trial consumed “several hours”. Id.

Rod Ferrell’s trial consumed six full days of testimony and evidence. More

importantly, the issue at Ferrell’s trial was not a simple one. The jury did not need to

decide Ferrell’s guilt. Rather, they faced the much more difficult task of deciding

whether Ferrell should spend the rest of his life in prison or be executed in Florida’s

electric chair. Unlike lay jurors, this Court is familiar with the subtle complexities of

Florida’s capital sentencing scheme. Before being called for jury duty in this case,

26
Ferrell’s jury undoubtedly had never even heard the terms “aggravating and mitigating

circumstances.” Defense counsel had the unenviable task of attempting to educate

this jury about the process of differentiating the most aggravated, least mitigated first-

degree murders from the general class of first-degree murders. This is a fine

distinction indeed which is very difficult to convey especially in forty-five minutes.

Closing argument at a penalty phase is easy for a prosecutor. Jurors want to

punish murderers. The state usually has most of the evidence as well as much of the

law on its side. All first-degree murders are tragic. In reality, defense counsel must

convince the jury that the defendant deserves mercy. This is usually an extremely

difficult task in a first-degree murder trial, especially one involving a double

homicide, as this one does.

Undersigned counsel was unable to find any Florida case discussing the

limitation of time for closing argument at the penalty phase. Appellant submits that

the lack of case law in this particular situation is further support for his contention that

trial courts should be extremely accommodating where human life hangs in the

balance. There is no bright shining rule that dictates the exact amount of time a

criminal defendant is given for closing argument even at the guilt phase. Adams v.

State, 585 So.2d 1092 (Fla. 3rd DCA 1991) The cases consistently hold that limiting

closing to less than thirty minutes is generally suspect. Foster v. State, 464 So.2d

27
1214 (Fla. 3rd DCA 1985)

In Stockton v. State, 544 So.2d 1006 (Fla. 1989), this Court disagreed with the

First District Court of Appeal and held that a thirty-minute time limit constituted an

abuse of discretion in a second-degree murder trial. This Court pointed out that

Stockton was convicted of a life felony, the trial lasted two full days, fifteen witnesses

testified, and the evidence was extremely conflicted.

Other cases are helpful as well. Munez v. State, 643 So.2d 82 (Fla. 3rd DCA

1994) [ twenty minute limit was unreasonable in two-day aggravated battery trial with

five witnesses]; Adams v. State, 585 So.2d 1092 (Fla. 3rd DCA 1991)[fifteen minute

limit held unreasonable in trial of sale of cocaine near school property where mistaken

identity at issue]; Bell v. Harland Rayvals Transport, Ltd., 501 So. 2d 1321 (Fla. 4th

DCA 1986) [thirty minute limitation unreasonable in negligence trial which lasted a

week and involved complex issues of liability and damages]; Hickey v. State, 484

So.2d 1271 (Fla. 5th DCA 1986)[thirty minute limit unreasonable in four day second-

degree murder trial even though State’s case was strong and trial court believed the

defense had very little about which to argue]; Kane v. State, 481 So.2d 546 (Fla. 5th

DCA 1986)[fifteen minute limitation results in reversal in a trial for delivery of a

controlled substance]; Rodriguez v. State, 472 So.2d 1294 (Fla. 5th DCA

1985)[fifteen minute limit warrants new trial in view of “serious nature of crime”

28
(burglary of a dwelling) and conflicting evidence on critical element of intent];

Pittman v. State, 440 So.2d 657 (Fla. 1st DCA 1983)[thirty minute limit unreasonable

in trial of various minor offenses arising from a fracas which broke out when police

attempted to disburse a noisy party–-thirty-three witnesses called and seven different

defendants, all charged with third-degree felonies]; Neal v. State, 451 So.2d 1058

(Fla. 5th DCA 1984)[twenty-five minute limit mandates new trial where defendant

faced minimum twenty-five-year prison term and was ultimately convicted of second-

degree murder; trial took one full day of jury selection and two full days of testimony;

and although the facts of the crime were fairly simple, there was sharp disagreement

concerning question of premeditation and the case raised novel and complex spouse

abuse defense].

In Ferrell’s six day trial for his life, the jury heard from forty-three witnesses,

including two who testified more than once. The parties commenced closing

argument first thing Monday morning following a weekend recess. The lawyers had

used their allotted time for summation before 11:00 a.m. (XXVII 3391) The jury was

instructed and retired to deliberated at 11:45 a.m. (XXX 3433) Shortly before 2:00

p.m., the jury asked to hear Ferrell’s videotaped confession. (XXX 3434) After

listening to the tape, the jury again retired to deliberate at 2:33 p.m. They returned at

4:28 p.m. with their recommendation of death. (XXX 3467-69) In light of the fact

29
that the trial court had arranged a full day for closing arguments, jury instructions, and

deliberations, it would not have been unreasonable under the circumstances to allow

ninety rather than forty-five minutes for each side to close. Assuming all other things

remained equal, an additional forty-five minutes per side would have brought the jury

back with their verdict at approximately 6:00 p.m. instead of 4:30 p.m.

A penalty phase trial is the most serious court proceeding in this state. The

issues involving aggravating circumstances and mitigating circumstances are subtle

and complex. Three mental health professionals testified at great length concerning

their diagnosis of Rod’s mental illness. All three experts concurred that Ferrell met

both statutory mitigating factors. Their diagnoses were varied, but all agreed that Rod

suffered from a schizotypal personality disorder. Counsel submits that such a

diagnosis is unusual and needs explanation and amplification, especially why this

evidence mitigates the crimes. The prosecutor countered with argument that the

experts’ conclusions were not worthy of belief, contending that their opinions were

based on faulty data i.e., garbage in, garbage out. (XXIX 3343-48)

Appellant invites this Court to read defense counsel’s closing argument. In the

forty-five minutes allotted by the trial court, she was simply unable to adequately sum

up the evidence. The argument appears rushed and disorganized. She spends only

two paragraphs explaining the “doubling” instruction. (XXIX 3376-77) Only three

30
sentences are spent arguing that the crime was not committed to avoid arrest which,

incidently, the trial court concluded did not apply. (XXIX 3377) Defense counsel

uses a mere three sentences to argue against the “heightened premeditation”

aggravator. (XXIX 3378) Because of the time constraint, defense counsel simply

glosses over the numerous mitigating factors that apply to the case and that the trial

court found. Many of them she simply reads without explanation. Because of the

arbitrary time limitation set by the trial court, defense counsel was forced to use 24

pages to cover 1500 pages of testimony. All tolled, there were 137 exhibits

introduced into evidence at Ferrell’s six day trial. Forty-three witnesses testified. The

issues were complex. Human life was at stake. Forty-five minutes was simply not

enough.

31
 POINT II

APPELLANT’S DEATH SENTENCE IS

CONSTITUTIONALLY INFIRM AS WAS HIS
PENALTY PROCEEDING WHERE THE TRIAL
COURT CROSSED THE LINE OF NEUTRALITY AND
IMPARTIALITY THUS DENYING FERRELL
ESSENTIAL DUE PROCESS BY DEPRIVING HIM OF
THE APPEARANCE OF AN UNBIASED
MAGISTRATE AND AN IMPARTIAL TRIER OF
FACT.

The requirement of judicial impartiality is at the core of our system of criminal

justice. As this Court said:

This Court is committed to the doctrine that every

litigant is entitled to nothing less than the cold
neutrality of an impartial judge. It is the duty of
courts to scrupulously guard this right and refrain
from attempting to exercise jurisdiction in any
manner where his qualification to do so is seriously
brought in question. The exercise of any other
policy tends to discredit the judiciary and shadow the
administration of justice.
It is not enough for a judge to assert that he is
free from prejudice. His mien and the reflex from
his court room speak louder than he can declaim on
this point. If he fails through these avenues to reflect
justice and square dealing, his usefulness is
destroyed. The attitude of the judge and the
atmosphere of the court room should indeed be such
that no matter what charge is lodged against a litigant
or what cause he is called on to litigate, he can
approach the bar with every assurance that he is in a
forum where the judicial ermine is everything that is
typifies, purity and justice. The guaranty of a fair

32
 and impartial trial can mean nothing less than this.

State ex rel. Davis v. Parks, 141 Fla. 516, 519-520, 194 So.613, 615 (1939). More

recently, in a similar vein, this Court elaborated:

We canonize the courthouse as the temple of justice.

There is no more appropriate justification for this
than the fact that it is the only place we know where
the rich and poor, the good and the vicious, the rake
and the rascal–in fact every category of social
rectitude and social delinquent–may enter its portal
with the assurance that they may controvert their
differences in calm and dispassionate environment
before an impartial judge and have their rights
adjudicated in a fair and just manner. Such a pattern
for administering justice inspires confidence. The
legend on the seal of this court–“sat cito si recte”
(soon enough if right or just)–embossed on the floor
in the rotunda of this building, encourages devotion
to such a pattern. Litigation guided by it makes the
courthouse the temple of justice. When judges
permit their emotions or the misapplication of legal
principles to shunt them away from it, they must be
reversed. The judge must above all be neutral and
his neutrality should be of the tough variety that will
not bend or break under stress. He may ask
questions to clarify the issues but he should not lean
to the prosecution or defense lest it appear that his
neutrality is departing from center. The judge’s
neutrality should be such that even the defendant
will feel that his trial was fair.

Williams v. State, 143 So.2d 484, 488 (Fla. 1962); See also, Crosby v. State, 97 So.2d

181 (Fla. 1957).

The trial court in appellant’s case first appeared less then neutral during jury

33
selection. Prospective juror Jefferson, one of the few African Americans on the panel,

was a few minutes late after a luncheon recess. The panel was told to report back to

the courtroom at 1:30 p.m. At 1:40 p.m. the trial court announced that everyone had

assembled except for prospective juror Jefferson. (XX 1595) The prosecutor

suggested that the court had the discretion to proceed with jury selection without Mr.

Jefferson, “We could strike him from the pool and go on.” (XX 1595) Defense

counsel pointed out that Mr. Jefferson might have a legitimate reason for being late

and the trial court agreed to allow an additional ten minutes before taking up the

matter once again. (XX 1595-96) At the very beginning of the ten minute wait, the

trial court requested a bench conference where the judge stated:

THE COURT: Frankly, this is a little premature, but

here is my concern with Mr. Jefferson to begin with.
I don’t think this is a secret to anyone up here.
Number one, he is a Black male, the record
would reflect that.
Two, if he is challenged and if someone calls
someone’s hand on the challenge then someone has
to state a race neutral reason why he would be
excluded.
Candidly, I will hear you argue, I have
written down three race neutral for Mr.
Jefferson.
MR. KING (prosecutor): Yes sir.
THE COURT: He had a horrible experience with
law enforcement where they pulled guns on him
and he is extremely affected by that. He is a full
time student in school–
THE BAILIFF: He is here, sir.

34
 THE COURT: Wonderful. (WHEREUPON THE
JUROR ENTERED THE COURTROOM.)
THE COURT: He is a full time student in school
and having to do his work at night and turn in his
papers during the day time and he actually said that
he had religious scruples against rendering
judgments on his fellow man.
MR. KING: And he also indicated he was opposed
to the death penalty although he’d follow the Judge’s
instructions, which is a legitimate reason for a
peremptory challenge. But it is not a cause
challenge, obviously.
THE COURT: Well, Mr. Jefferson is here and we
will deal accordingly, but those are some feelings I
felt for Mr. Jefferson.
I was really anticipating he wasn’t going to
show up and I was wondering if we could do
something about it now. But he is here, we don’t
have to worry about him, we will press on.

(XX 1595-98) Jury selection proceeded without incident until the state exercised a

peremptory challenge of Mr. Jefferson. Appellant objected and requested race neutral

reasons. The prosecutor replied that Mr. Jefferson was a full time student with

homework, that he did not like the death penalty in general but he could apply the law

as instructed, and that he was once the victim of mistaken identity and accosted at

gunpoint by police officers which was a very distasteful experience. The trial court

responded:

Candidly, along with those, I believe at one

point Mr. Jefferson said that he had a religious
scruple against judging other persons, which jumped
right out at me.

35
 I’m going to state that the State has stated at
least three race neutral reasons and I think I have a
right to consider another and I have, and Mr.
Jefferson is a strike for the State.

(XXI 1646-48) Defense counsel did not object to the race neutral reasons given by

the trial court and the prosecution team. However, defense counsel did question at

least the appearance of bias by the trial court. Appellant claimed in his motion for

new trial that the court inappropriately demeaned perspective juror Jefferson after he

was a few minutes late from the lunch break. The trial court responded by reading his

remarks to the venire on the record. (XXXI 3636-37) The trial court added:

...And I am advised in the motion that I effectively

provided the State with reasons to strike him because
I was irritated at him because he came back late.
That is insanity. There is no such thing in the
record. It is not true. It is absolutely a misstatement
of what happened. I’m not even sure I made that
connection between that person and the juror that
came back late.
So, in any event, with that said, that motion is
denied.

(XXXI 3637-38) It does not really matter whether the trial court’s motive was

connected to the prospective juror’s tardiness. The fact of the matter is that the trial

court did provide race neutral reasons which the state subsequently used to justify

their peremptory challenge of Mr. Jefferson, the slightly tardy African American juror.

The trial court engaged in similar conduct to that condemned in Foster v. State,

36
24 Fla.L Weekly D1039 (4th DCA April 28,1999). In McFadden v. State, 24 Fla.L

Weekly D1040 (4th DCA April 28, 1999). The trial court impermissibly departed

from his role of impartiality by helping an unprepared prosecutor make his case for the

defendant’s violation of probation. In spite of the overwhelming evidence and the fact

that it was a VOP hearing, the appellate court could not escape the “settled feeling that

the trial judge went too far in assisting” the prosecutor. A judge may not, in fact, also

act as a prosecutor. Merchn v. State, 495 So.2d 855 (Fla. 4th DCA 1986) While a

judge may ask questions deemed necessary to clear up uncertainties, the trial court

departs from a position of neutrality when its sua sponte orders the production of

evidence that the state itself never sought to offer into evidence. J.F. v. State, 718

So.2d 251, 252 (Fla. 4th DCA 1998)

Unfortunately, the trial court departed from his role of neutral arbiter in

appellant’s case. In addition to supplying the race neutral reasons to excuse juror

Jefferson, the trial court also unfairly limited voir dire (see Point III), and also

arbitrarily and unfairly limiting appellant’s time for final summation. See, Point I.

Because of the trial court’s appearance of partiality, this Court must order a new

penalty phase.

37
 POINT III

THE TRIAL COURT ERRED IN LIMITING

APPELLANT’S VOIR DIRE EXAMINATION DURING
JURY SELECTION, RESULTING IN A DENIAL OF
DUE PROCESS AND THE RIGHT TO A FAIR TRIAL
RENDERING FERRELL’S DEATH SENTENCE
CONSTITUTIONALLY INFIRM.

Voir dire examination of prospective jurors by counsel is assured by Florida

Rule of Criminal Procedure 3.300(b). Jones v. State, 378 so.2d 797 (Fla. 1st DCA

1980). The purpose of voir dire, “Is to obtain a fair and impartial jury to try the issues

in the cause.” Keene v. State, 390 so.2d 315,319 (Fla. 1980). “Subject to the trial

court’s control of unreasonable repetitious and argumentative voir dire questioning,

counsel must have an opportunity to ascertain latent or concealed pre-judgments by

prospective jurors which will not yield to the law as charged by the court, or to the

evidence.” Jones, 378 So.2 at 798.

Wide latitude should be allowed during the examination of jurors during voir

dire. Cross v. State, 103 So.2d 636, 89 Fla. 212 (1925). Voir dire examination should

be as varied and elaborate as is necessary to obtain fair and impartial jurors whose

minds are free of all interests, bias or prejudice. Gibbs v. State, 193 So.2d 460 (Fla.

2d DCA 1967).

On numerous occasions, the trial court restricted appellant’s attempts to

throughly and completely question the prospective jurors. Many of the jurors

38
unequivocally favored the death penalty over a sentence of life imprisonment without

possibility of parole because of their misconception that the death penalty saved

taxpayer dollars. See, e.g., (SR II 210, 222, 276; XVII 929-32) [to point out just a

few of the many examples of this type of juror]. When appellant attempted to delve

into this biased misconception during voir dire, the trial court sustained the state’s

objection and precluded that line of inquiry. (XVII 920-21)

Another group of jurors favored the death penalty for all first-degree murders.

See, e.g., (SR II 216, 228, 234, 240, 276) [again just to point out a few of many]. A

couple of prospective jurors thought the death penalty might be inappropriate in

certain murder cases, if the defendant acted in self defense for example. See, e.g.,

(SR II, 210, 282) When defense counsel attempted to ferret out these jurors, many of

whom had been rehabilitated by the state, the trial court again put a stop to appellant’s

efforts. Appellant asked prospective juror Stevens about his feeling that all first-

degree murderers should be sentenced to death.

...[B]asically you’re saying regardless of what the

instructions are, if you come back guilty of first-
degree murder you’re going to give him death, is that
correct?
PROSPECTIVE JUROR: Yes sir. If the evidence
points to it, why should we put him in prison for life
and feed him the rest of his life...he’s basically got it
better in there than he does in the real world. ... I
mean, he took a life and so, you know, why let him
enjoy that?

39
(XVIII 1030) When defense counsel attempted to ask another prospective juror the

same question, the state objected claiming the question called for the juror to commit

to a position “when they don’t know any facts and haven’t been given the law.”

(XVIII 1031) The trial court sustained the objection and precluded that line of

inquiry as well.

The trial court eventually decided that defense counsel had asked “enough”

questions regarding the prospective jurors’ feelings about the death penalty. The trial

court precluded any further inquiry into this issue.

THE COURT: We have voir dired this jury

on the death penalty extensively. I have denied your
Motion to Re-Voir Dire on the Death Penalty. I’m
going to strike that question to be addressed to any
other member of the jury.

(XX 1576) Defense counsel complied with the court’s unequivocal order. The trial

court subsequently restricted appellant’s questioning of the venire regarding their

feelings about children and smoking (XXI 1633-35); as well as the jurors’ experience

with school detention. (XXI 1635-36)

The trial court’s severe restrictions of appellant’s voir dire resulted in a denial

of appellant’s constitutional rights to a fair trial and to due process of law. The

questions were relevant and necessary. Especially relevant and critical was the ability

of appellant to fully address prospective jurors’ feelings about the appropriateness of

40
the death penalty for all first-degree murders. Similarly, an extremely damaging but

pervasive misconception among the general populous is the belief that life

imprisonment without possibility of parole is much more expensive than executing an

individual. This Court knows that such is not the case. Counsel should have been

allowed to completely explore these misconceptions with venire. The jurors’

attitudes regarding smoking were important in the case for two reasons. The evidence

showed that Ferrell’s mother allowed him to smoke cigarettes at home with her

approval. Additionally, Louisiana police willingly gave cigarettes to Ferrell when they

successfully extracted his confession. The record does not reveal where defense

counsel is going regarding school detention because the trial court cut her off in such a

perfunctory manner.

Appellant submits that any limitation on questioning prospective jurors about

their attitudes regarding the death penalty is a dangerous situation in a capital case.

The trial court’s erroneousness rulings during voir dire were exacerbated by the trial

court’s refusal to comply with Florida Criminal Rule of Procedure 3.281 which

provides:

Upon request, any party shall be furnished by

the clerk of the court with a list containing names
and addresses of prospective jurors summoned to try
the case together with copies of all jury
questionnaires returned by the prospective jurors.

41
Appellant is entitled to a new penalty phase. Amends. V, VI, VIII, and XIV, U.S.

Const.; Art. I §§ 9,16, 17, and 22, Fla. Const.

42
 POINT IV

THE TRIAL COURT ERRED IN PERMITTING A

STATE WITNESS TO TESTIFY TO HER OPINION AS
TO WHAT DEFENDANT MEANT BY HIS WORDS,
IMPROPERLY INVADING THE PROVINCE OF THE
JURY AND RESULTING IN A DENIAL OF HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY
JURY AS GUARANTEED BY THE FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, AND ARTICLE I,
SECTIONS 9, 16, AND 22, OF THE FLORIDA
CONSTITUTION.

During a trial, counsel introduces evidence of relevant facts by offering

testimony from witnesses as to facts about which they have personal knowledge. As

recognized in Section 90.604, Florida Statutes, if a witness does not have personal

knowledge of a fact, he or she may not testify to the fact. It is the province of the jury

to decide between conflicting facts, to draw inferences from the facts, and to reach the

factual conclusions in the trial. Generally, witnesses may not testify in terms of

opinion or inferences. It is the function of the jury to draw those inferences or

opinions. Ehrhardt, Florida Evidence, §701.1 (1998 Edition).

At Ferrell’s penalty phase, the trial court allowed a witness to testify, over

defense counsel’s timely and specific objection, as to matters that invaded the

province of the jury, and matters that were pure speculation on the part of the witness.

Audrey Presson, a former classmate of Ferrell’s in Eustis testified that Ferrell and the

43
rest of the crew came to her home on the night before the murder. They asked

Presson if she wanted to leave Eustis with them. She declined. (XXII 1953-58)

Ferrell explained to Presson that he had returned to Eustis “on unfinished business.”

(XXII 1960) When the prosecutor asked Presson what the statement meant to her,

defense counsel objected, pointing out that her answer would be speculative. Presson

could not know what was going on in Ferrell’s mind. The trial court overruled the

objection, relying on the fact that the question asked what Ferrell’s statement “meant

to her[Presson].” (XXII 1960-61) Presson responded:

My understanding that it’s–unfinished

business means that somebody has done somebody
else wrong and they will pay for it, that’s unfinished
business.

(XXII 1961)

A witness’ testimony of what he saw or observed is relevant; but “when it

leaves this field and enters into that of opinion or supposition, it invades the province

of the jury.” Scott v. Barfield, 202 So.2d 591, 594 (Fla. 4th DCA 1967). Thus, the

trial court must not allow such improper speculation, since one witness’ guesses or

assumptions about facts cannot constitute relevant evidence that would reasonably

support the factual conclusion. Holden v. Holden, 667 So.2d 867 (Fla. 1st DCA

1996); Dept. of Labor & Employment, Div. of Workers’ Compensation v. Bradley,

636 So.2d 802, 809 (Fla. 1st DCA 1994) (assumptions of witnesses do not constitute

44
reliable evidence); Drackett Products Co. v. Blue, 152 So.2d 463, 465 (Fla. 1963)

(testimony consisting of guesses, conjecture or speculation are clearly inadmissible).

Under Section 90.701, Florida Statutes, before a lay witness may testify in the

form of inference and opinion, the party offering the testimony must establish that “the

witness cannot [otherwise] readily, and with equal accuracy and adequacy,

communicate what he has perceived to the trier of fact” and that the witness’ “use of

inferences or opinions will not mislead the trier of fact to the prejudice of the

objecting party.” Kight v. State, 512 So.2d 922, 929 (Fla. 1987). Here, although it

may have been Presson’s subjective view that Ferrell meant to exact some type of

revenge, rather than the equally plausible inference that Ferrell had some unfinished

personal matters to attend to, “this is not the type of lay opinion testimony which is

admissible under section 90.701.” Kight v. State, supra at 929. The state here, as in

Kight, failed to establish that the witness could not have otherwise communicated her

perceptions – what she heard the defendant actually say – to the jury without the

improper interpretive slant given by the witness to the words. This witness was

wrongly asked her conclusions or understandings of the intention or meaning of the

accused, instead of being questioned simply as to the defendant’s acts and words, and

leaving the jury to draw therefrom their conclusions as to his meaning. Hodge v. State,

26 Fla. 11, 7 So. 593, 595 (1890). The witness must be confined in his testimony to a

45
statement of facts, leaving it to the jury to draw the proper inferences as to what was

the party’s meaning. Branch v. State, 96 Fla. 307, 118 So. 13, 15 (1928).

In Dixon v. State, 13 Fla. 636 (1869), the Florida Supreme Court ruled that a

witness would not be allowed to give his understanding of the meaning of words used

in declarations of the accused. This holding is precisely on point for the instant case.

Similarly, in Lee v. State, 24 Fla.L.Weekly D736-738 (1st DCA March 19, 1999) a

police officer should not have been allowed to testify that the defendant “appeared to

have something on his mind that he appeared to want to talk to somebody about”

before he gave a taped statement.

Likewise, it was not for Presson to decide what Ferrell meant by the term

“unfinished business.” Rather, that was a job for the jury to decide on their own,

without Presson’s personal, speculative commentary of the words’ meaning. The jury

already had all of the facts from the witness, they did not require, and should not have

suffered, the irrelevant theories of the witness. The objectionable, speculative,

irrelevant, and inflammatory interpretation by Presson supported the state’s theory

regarding the “heightened premeditation” aggravating factor. With such inappropriate

conjecture before the jury, the appellant did not receive a fair trial. Reversal for a new

penalty phase is required.

46
 POINT V

THE TRIAL COURT ERRED IN DENYING THE

MOTION TO SUPPRESS APPELLANT’S
STATEMENTS TO AUTHORITIES IN LOUISIANA
FOLLOWING HIS ARREST, WHERE THE
STATEMENTS WERE OBTAINED IN VIOLATION
OF FERRELL’S CONSTITUTIONAL RIGHTS.

Pertinent Facts

Rod Ferrell, Heather Wendorf, Scott Anderson, Charity Keesee, and Dana

Cooper were all arrested in Baton Rouge, Louisiana within a few days of the murders.

Baton Rouge police were contacted by Florida authorities after Charity Keesee called

a relative in South Dakota who, in turn, notified Florida authorities. Louisiana

authorities spotted the Wendorfs’ Explorer in a motel parking lot. All five teenagers

were arrested without incident and transported to police headquarters in Baton Rouge.

(XXIV 339-44,376-91)

Shortly after 9:00 p.m., Louisiana detectives placed Rod Ferrell, a sixteen-year-

old boy, in handcuffs, in a small interview room. (XXIV 344-47) Due to the shortage

of space in the juvenile facility, along with the fact that Dana Cooper was technically

not quite a juvenile anymore, police kept the group at the police station over the

course of the next twenty three hours until approximately 8:00 the next evening.

(XXIV 347) The group’s gastronomical needs were met. They were allowed to use

the bathroom, but there was no place for them to sleep other than chairs and the floor.

47
(XXIV 348-49) Police kept the children separated, because they did not want them

communicating with one another. (XXIV 356-57) The interview room where Ferrell

remained was completely enclosed, without windows but with a mirror that allowed

police to observe undetected. (XXIV 358-59) Police provided Ferrell with

cigarettes, despite the fact that this was a violation of Louisiana law. (XXIV 366-67)

From all indications, Rod Ferrell seemed to be very much in love with Charity

Keesee, whom he called Shea. At the time of his arrest, Ferrell believed that Keesee

was pregnant with his child. Shea was practically the only thing that mattered to Rod

Ferrell. As he was being transported to the Baton Rouge police department following

his arrest, Ferrell began talking to Officer Dewey. Dewey warned Ferrell not to make

any statements. Ferrell advised Officer Dewey that “all he wanted to do was speak

with his girlfriend, Shea. That he would tell me anything that I wanted to hear...”.

(XXIV 392-96) Dewey again warned Ferrell not to make any statements and

reminded him of his rights under Miranda. Dewey told Ferrell that Sgt. Odom would

be the one who decided if he could visit his girlfriend. (XXIV 396-97)

At the police station Officer Dewey informed Sgt. Odom that Ferrell was

willing to give a statement. All Ferrell requested was a visit with his girlfriend, Shea.

Odom was cognizant of Louisiana law, so he called a local juvenile prosecutor for

advice. Odom then called Bill Gross, a Lake County, Florida prosecutor and advised

48
him of the situation. Odom explained to Gross that, under Louisiana law, he could not

take Ferrell’s statement without the presence of his parent, lawyer, or guardian. Odom

and Gross had two or three telephone conversations about the issue that evening.

Eventually, Gross called from Florida and told Odom to ignore Louisiana law, since

the prosecution would occur in Florida. (XXV 418-27)

At approximately midnight, Dewey advised Ferrell of his rights pursuant to

Miranda. Dewey ascertained that Ferrell had completed the tenth grade and had been

seeing a psychiatrist. (XXVI 2720-24; State’s exhibit #77) After these preliminaries,

Odom began:

Sgt. Odom: Okay, Rod. I understand that you talked

to Detective Dewey and that you have agreed to give
a statement about what you know about this problem
that arose in Lake County.
Ferrell: As long as I get to see Shea.
Sgt. Odom: Okay. Not a problem. Go ahead and
start, I guess from when you were up there in
Kentucky.

(XXVI 2724; State’s exhibit #77) Ferrell then gave a complete confession which was

secretly videotaped. (XV 454-55) After giving the statement to Louisiana authorities

shortly after midnight, Ferrell gave a second statement to Florida authorities later that

day also at the Baton Rouge police station. The trial court denied appellant’s motion

to suppress the statements and allowed them into evidence over objection. (VI 1048-

77; XXVI 2676;XVI 669-70)

49
The Totality of the Circumstances Render Ferrell’s Confession Involuntary

“[B]ecause of the tremendous weight accorded confessions by our courts and

the significant potential for compulsion–both psychological and physical–in obtaining

such statements, a main focus of Florida confession law has always been on guarding

against one thing–coercion.” Traylor v. State, 596 So.2d 957, 964 (Fla. 1992). In

Traylor, this Court reiterated the following standard for determining the admissibility

of a confession, first set out nearly a century and a half ago:

To render a confession voluntary and admissible as

evidence, the mind of the accused should at the time
be free to act, uninfluenced by fear or hope. To
exclude it as testimony, it is not necessary that any
direct promises or threats be made to the accused. It
is sufficient, if the attending circumstances or
declarations of those present, be calculated to delude
the prisoner as to his true position, and exert an
improper and undue influence over his mind.

Simon v. State, 5 Fla. 285, 296 (1853). Accordingly, the test for the admission of a

confession is voluntariness. In assessing voluntariness, this Court must consider the

totality of the circumstances to determine whether coercive police activity produced

the confession. The determination must be made by the judge–not the jury. Traylor

at 964. The State has the burden to prove by a preponderance of the evidence that the

confession was freely and voluntarily given. Thompson v. State, 548 So.2d 198, 204

(Fla. 1989) and DeConingh v. State, 433 So.2d 501, 503 (Fla. 1983).

50
 Under the totality of the circumstances, Ferrell’s inculpatory statements to law

enforcement were involuntary, and were admitted in violation of the Fifth

Amendment protection against self-incrimination and the self-incrimination clause in

Article I, Section 9 of the Florida Constitution. Specifically, the detectives preyed

upon an inexperienced boy of sixteen with an emotional age of three who had little if

any sleep in the seven days since he committed the two murders that shattered his

already dysfunctional life. Almost immediately after his arrest, Ferrell expressed

relief that he had finally been caught; that he had been on the run for seven days.

(XIV 395) Almost immediately thereafter, Ferrell expressed a willingness to “tell

[the detective] anything that [he] wanted to hear...that all he wanted to do was speak

with his girlfriend, Shea.” (XIV 396)

The record on appeal belies the authorities’ testimony that they made no

promises to Ferrell concerning a visit with his girlfriend contingent upon giving a

statement. When Sgt. Odom begins taking Ferrell’s confession (which he secretly

videotaped), he began with a explanation of his constitutional rights. After some

preliminary questioning, Ferrell signed a waiver of rights form. Sgt. Odom then stated

his understanding that Ferrell wanted to make a statement about his involvement.

Ferrell’s response, “As long as I get to Shea” reveals all. In response to Ferrell’s

request, Odom does not tell Rod that he cannot promise anything. Rather, Odom tells

51
Ferrell, “Okay, not a problem.” (XXVI 2724)

In Frazier v. State, 107 So.2d 16, 21 (Fla. 1958), this Court stated:

A confession should be excluded if the attending

circumstances, or the declaration of those present at
the making of the confession, are calculated to
delude the prisoner as to his true position, or to
exert improper and undue influence over his
mind.

(Emphasis added). A confession is inadmissible if it is “obtained by any direct or

implied promise, however slight.” Fillinger v. State, 349 So.2d 714, 715 (Fla. 1979).

Promises or inducements are objectionable if they establish an express quid pro quo

bargain for a confession. Id. Appellant contends that the record clearly reflects such

a deal in this case. He gave the statements on the condition that he be allowed to see

his girlfriend. (XVI 615-20) All Rod Ferrell cared about was spending some time

with his girlfriend. See, e.g. (XV 476, 536-37) For that, he would tell the police

“anything.” That he did.

While the above cited “bargain” is the most objectionable and coercive aspect

of Ferrell’s statement to authorities, other objectionable aspects exist as well. Ferrell

did not approach the police. He was arrested and was not free to leave. He admitted

that he had been without sleep most of the past seven days. He was a lad of only

sixteen without much exposure to police tactics, especially when it came to extracting

a confession. He had never been arrested. He was seeing a psychiatrist. He had

52
drunk a bottle of wine on an empty stomach which made him disoriented. He felt

intimidated and did not “completely” understand his rights. (XVI 615-20) He had an

emotional age of only three. He was isolated from his friends, his parents, and his

lawyer. See, e.g., Snipes v. State, 651 So.2d 108 (Fla. 1995); Drake v. State, 441

So.2d 1079 (Fla. 1983); and Doerr V. State, 383 So.2d 905 (Fla. 1980).

Appellant’s Statement Should be Excluded Where a Florida Prosecutor Told

Louisiana Police to Violate Louisiana Law and Illegally Extract the Confession, Since
Florida Law Would Apply to the Confession’s Admissibility.

All parties below agreed that, under Louisiana law, Ferrell’s subsequent

confession would be inadmissible in court. Louisiana law requires that a juvenile’s

parent or lawyer to be present before the child can be questioned. (XXIV 319-25;

XXV 418-27) The record is clear. Louisiana police arrested Rod Ferrell based on a

Florida warrant. Ferrell seemed willing to confess, but Louisiana police knew that,

under Louisiana law, they were powerless to take his statement without the presence

of his parent, guardian, or lawyer. Louisiana recognizes the inherent coerciveness in a

juvenile’s custodial encounter with police. State In the Interest of Dino, 359 So.2d

586 (La.1978) Florida does not recognize such a per se rule of inadmissibility. When

Louisiana police realized their predicament, they consulted with the head of their local

juvenile prosecution division who confirmed their belief that they could not take

Ferrell’s confession. This led them to contact a Lake County, Florida prosecutor who

53
ultimately told them to ignore their local law. The statement would be admissible in a

Florida court under Florida law. The trial court’s ruling admitting Ferrell’s statements

into evidence at his penalty phase vindicated the Florida prosecutor’s legal advice.

Appellant takes issue with the trial court’s ruling where the state acted in bad

faith. The Florida prosecutor told Louisiana police to violate their oath to uphold

Louisiana law, engage in police misconduct, and illegally take the juvenile’s

confession. The rationale for the exclusionary rule is to deter police misconduct.

Mapp v. Ohio, 367 U.S. 643 (1961). Appellant contends that the Florida prosecutor’s

advice to Louisiana police is outrageous conduct which should not be rewarded.

Indeed, the behavior should be punished by exclusion of Ferrell’s statements.

The fact pattern in this case is analogous to the old cases involving the “silver

platter doctrine.” In some situations, the doctrine allowed evidence illegally obtained

by state police to be used by federal authorities to obtain a conviction in federal court.

The evidence must be presented to federal officials on a “silver platter” by state

authorities i.e., without any federal participation in the underlying illegal search or

seizure, in order for the evidence to be admissible in federal prosecutions. Lustig v.

United States, 338 U.S. 74, 79 (1949) The doctrine was condemned in Elkins v.

United States, 364 U.S. 206 (1960) which held that evidence obtained by state

officers in violation of the Fourth Amendment, as made applicable to the states by the

54
Fourteenth Amendment, was inadmissible in a federal prosecution not withstanding

that federal officers had no involvement in the search and merely received the

evidence on a “silver platter.” The silver platter doctrine was alive and well in the

days when the Fourth Amendment applied to federal, but not state officials. United

States v. Comstock, 805 Fed. 2d 1194 (C.A. 5 Tex. 1986).

It is important to note that Florida law enforcement was directly responsible for

the extraction of Ferrell’s confession in violation of the law in Louisiana, the situs of

the statement. Even under the silver platter doctrine, Florida authorities could not use

the tainted confession where they were direct participates in the illegal interrogation.

It is as if Lake County, Florida assistant state attorney Bill Gross reached out to

Louisiana, orchestrated the illegal interrogation, and then used the tainted confession

to successfully obtain a death sentence for Rod Ferrell.

As a matter of law, moreover, even a good faith decision to continue a

constitutionally tainted prosecution does not erase the taint when, as alleged here, the

prosecution continues to utilize the fruits of the tainted behavior. United States v.

P.H.E., Inc., 965 Fed.2d 848, 859 (C.A. 10 Utah 1992). The exclusionary rule is not a

personal constitutional right but is a judicially created remedy designed to safeguard

those rights generally through its deterrent effort. United States v. Eastland, 989 Fed

2d. 760 (C.A. 5 Tex.1993). Where there is some strong social policy, courts may

55
extend the exclusionary rules of evidence beyond constitutional and statutory

requirements. Id. Appellant specifically raised this issue at trial. (XVI 649; XIV

331-33)

At the Florida prosecutor’s insistence, Louisiana police ignored their oath and

violated local law to obtain Ferrell’s confession. Under the circumstances, appellant

submits that the Louisiana authorities were not acting in their capacity as Louisiana

law enforcement. Instead, they were acting as the instrument of Florida authorities.

Because of their lawless behavior, this Court could consider the Louisiana detectives

as no more then private individuals acting at the behest of Florida police. Although

the exclusionary rule does not apply to evidence obtained by private citizens, the

evidence would be excluded where the private citizen acts in collusion with law

enforcement officials in order to circumvent requirements of the law. United States v.

Clutter, 914 Fed 2d 775 (C.A. 6 Ky. 1990). Analogously a federal court may exercise

its supervisory powers by excluding state officials’ ill-gotten evidence in a federal

prosecution where federal officials seek to capitalize on the state officials’ flagrant

abuse of the law. United States v. Sutherland, 929 Fed 2d 765 (C.A. 1 Mass. 1991).

Florida authorities should not be allowed to capitalize on the tainted confession.

56
 POINT VI

THE COURT BELOW ERRED IN DENYING AP-

PELLANT'S MOTION FOR CHANGE OF VENUE,
DUE TO THE PERVASIVE AND PREJUDICIAL
PUBLICITY WHICH SURROUNDED THIS CASE
AND INFECTED THE COMMUNITY FROM WHICH
APPELLANT'S JURY WAS SELECTED.

The Sixth Amendment to the Constitution of the United States guarantees to every

person charged with a crime a fair trial, free of prejudice. Murphy v. Florida, 421 U.S.

794 (1975); Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532

(1965); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717

(1961).

In ruling on a motion for change of venue, a trial court should determine

whether the general state of mind of the inhabitants of a

community is so infected by knowledge of the incident and
accompanying prejudice, bias, and preconceived opinions
that jurors could not possibly put these matters out of their
minds and try the case solely on the evidence presented in
the courtroom.

McCaskill v. State, 344 So. 2d 1276, 1278 (Fla. 1977); Pietri v. State, 644 So. 2d

1347, 1352 (Fla. 1994).

To establish presumed prejudice, the defendant must present "evidence of

inflammatory, prejudicial pretrial publicity that so pervades or saturates the

community as to render virtually impossible a fair trial by an impartial jury drawn from

57
the community." Mayola v. Alabama, 623 F. 2d 992, 997 (5th Cir. 1980).

Within two months of Rod Ferrell’s indictment, defense counsel filed a motion for

change of venue. (I 149-55) Lake County is a rural community with a population of

less than 200,000 people. (XIV 295-96) The local and national press were eager to

cover this case. Because of all of the defendants’ youth, much of the information

about the case was initially withheld from the public and the press. The local press

took legal action to gain access. As a result, ancillary proceedings from Sentinel

Communications Co. v. Brad King, State Attorney, are a part of this record on appeal.

See, e.g., (SR IV 452-529; XIII 5-12) Appellant was concerned enough about the

pervasive and inflammatory pretrial publicity to request that certain proceedings be

closed and that the venire be sequestered. (XIV 225-26, 281-85) The case received

national coverage. (XV 114)

Appellant introduced numerous newspaper articles to document the pervasive

publicity and rural Lake County. The coverage focused on the sensational aspects of

the crimes with headlines such as “VAMPIRE CULTIST”; “IN THE SHADOWS OF

VAMPIRISM”; VAMPIRE TALES TAKE SHAPE”; “VAMPIRE FANTASIES”;

“VAMPIRE TEEMS”; “INTERVIEW WITH A VAMPIRE”; “INTERNATIONAL

ATTENTION”; and “HUMAN BLOOD DRINKING RITUALS”. (SR IV 486) It is

difficult to imagine much more inflammatory rhetoric than what was widely

58
disseminated in this case. After hearing the results of a survey conducted by the

defense, the trial court reserved ruling on the motion for change of venue until jury

selection. (XIV 295-98) Subsequently, the trial court denied the motion which

appellant renewed right before the jury was sworn. (XXI 1694-96)

A convicted defendant may also show actual prejudice in order to justify a

reversal of the trial court. Actual prejudice means any actual, expressed opinion

indicating the jurors’ prejudice or inability to be impartial and indifferent as the Sixth

Amendment requires. Irvin v. Dowd, 366 U.S. 717 (1961) When this Court reviews a

trial court’s ruling denying a motion for change of venue, it must reverse if the lower

court manifestly or palpably abused its discretion. Gaskin v. State, 591 So.2d 917

(Fla. 1991). Meeting that standard should not be so difficult because this Court has

also said:

We take care to make clear, however, that

every trial court in considering a motion for change
of venue must liberally resolve in favor of the
defendant any doubts to the ability of the state to
furnish a defendant a trial by fair and impartial jury.
Every reasonable precaution should be taken to
preserve to a defendant trial by such a jury and to this
end if there is a reasonable basis shown for a change
of venue a motion therefor properly made should be
granted.
A change of venue may sometimes
inconvenience the State, yet we can see no way in
which it can cause any real damage. On the other
hand, granting a change of venue in a questionable

59
 case is certain to eliminate a possible error and
eliminate a costly retrial if it be determined that the
venue should have been changed. More important is
the fact that real impairment of the right of a
defendant to trial by a fair and impartial jury can
result from the failure to grant a change of venue.

Singer v. State, 109 So.2d 7, 14 (Fla. 1959). In short, “Where the evidence presented

reflects prejudice, bias, and preconceived opinions, the trial court is bound to grant the

motion” to change venue. Manning v. State, 378 So.2d 274, 276 (Fla. 1979)

In addition to the presumed prejudice from the pervasive publicity in this rural

community, the record also demonstrates actual prejudice. Almost every single

potential juror had read about the case and had formed opinions. Examination of the

juror questionnaires reveal extensive knowledge of the case gleaned from the media.

Many had formed fixed opinions about appellant’s case. The problem was exacerbated

by the trial court’s erroneous pretrial ruling denying appellant’s request for a list of

names of the prospective jurors who would be called. (XIV 232-36) Defense counsel

cited this problem immediately prior to the swearing of the jury. (XXI 1694-96)

Florida Rule of Criminal Procedure 3.281 provides:

Upon request, any party shall be furnished by

the clerk of the court with a list containing names
and addresses of prospective jurors summoned to try
the case together with copies of all jury
questionnaires returned by the prospective jurors.

Appellant never received this pertinent and helpful information until the morning of

60
jury selection. Under questioning by the trial judge and the prosecutor, many claimed

that they could “put aside” any extrajudicial knowledge and previously formed

opinions, such that they could render a fair and impartial verdict. Appellant seriously

doubts that this is possible in a case as salacious as this one.

In light of the extent and nature of the publicity in this case, to which most of the

prospective jurors had been exposed, this Court must find that Appellant was deprived

of his right to a fair trial by the refusal of the lower court to grant him a change of

venue. Amends. VI, VIII, and XIV, U. S. Const.; Art. I, § 9 and 16, Fla. Const. His

remedy is a new trial.

61
 POINT VII

THE TRIAL COURT ERRED IN ALLOWING

EVIDENCE MATTERS THAT HAD NO RELEVANCE
BUT WERE EXTREMELY INFLAMMATORY AND
PREJUDICIAL.

Over a timely and specific objection by defense counsel, Desiree Nutt, a former

correctional officer in the Lake County Jail when Ferrell was awaiting trial, testified

that Ferrell told her about his “escape plan.” She testified in great detail that Ferrell

explained how he would escape and how he would “take out” the “dumb deputies.”

He was an amateur assassin and he would take hostages. (XXVI 2524-34) The

evidence of these “collateral crimes” was not relevant to any issue before the penalty

phase jury. The state initially promised that they would not introduce the evidence

but mysteriously elicited the testimony from the witness. The trial court even more

mysteriously overruled appellant’s objection and allowed the testimony.

MR. LACKEY (defense counsel): Your

Honor, could I object one time, Judge? I think the
evidence is going to be a collateral crime and
shouldn’t –
THE COURT: I disagree at this point with
regard that issue and overrule.
(XXV 2533)
The erroneous admission of irrelevant collateral crimes evidence “is presumed

harmful error because of the danger that a jury will take the bad character or propensity

to crime thus demonstrated as evidence of guilt of the crime charged.” Straight v.

62
State, 397 So.2d 903, 908 (Fla. 1981) This exact type of evidence resulted in a

reversal in St. Louis v. State, 584 So.2d 180 (Fla. 4th DCA 1991)[ testimony by

juvenile detention center employee that defendant had verbally threatened employee

and his family by stating that he could kill them just as easily as he killed someone

else was not admissible as admission to charged crimes, but rather was inadmissible

collateral crimes evidence.] Collateral crimes evidence may also result in a reversal at

a penalty phase where “substantially different issues arise... that require analysis

qualitatively different than that applicable to the guilt phase.” Castro v. State, 547

So.2d 111, 115 (1989)[Error to admit witness’ testimony that Castro had tied him up

and threatened to stab him several days prior to killing the victim.] Ferrell’s death

penalty was based, in part, on this irrelevant and prejudicial evidence. A new penalty

phase is required.

63
 POINT VIII

THE TRIAL COURT ERRED IN FINDING THAT THE

MURDERS WERE COMMITTED IN A COLD,
CALCULATED, AND PREMEDITATED MANNER
WITHOUT ANY PRETENSE OF MORAL OR LEGAL
JUSTIFICATION.

In finding this particular aggravating factor, the trial court wrote:

...This circumstance is proven beyond a reasonable

doubt by Ferrell’s statements on the afternoon of the
murders that he was going to kill the victims, his
careful surveillance of the home before entry, the
procurement of a deadly weapon in advance of his
entry into the home, the lack of resistence of Richard
Wendorf and the number, location and severity of
the wounds inflicted on both of the victims....

(XI 2061)

Appellant objected to an instruction as to this factor. (XXVII 2893) To

support a finding of the CCP aggravator, the evidence must establish beyond a

reasonable doubt that: (1) the murder was the product of cool and calm reflection;

(2) there was a careful plan or prearranged design to commit murder before the fatal

incident; (3) there was heightened premeditation; (4) there was no pretense of

moral or legal justification for the murder. Walls v. State, 641 So.2d 381 (Fla. 1994).

The evidence produced by the state simply does not support the finding of

CCP. The evidence certainly proves that the appellant and Scott Anderson fully

intended to burglarize the Wendorf home and to steal the keys to their vehicle so that

64
they could drive the Wendorfs’ Ford Explorer on their trip out of state. However, the

evidence does not conclusively show that the boys intended to kill the victims prior to

their entry into the home. In fact, the evidence indicates otherwise.

Appellant and Anderson selected weapons in the Wendorfs’ garage

immediately prior to the burglary. There was evidence that the boys grabbed the

weapons at the last minute as much for “protection” in case the burglary did not go

according to plan. (XXVI 2764-68) Ferrell explained to the police, “we never

thought about it until ten minutes before we did it.” (XXVI 2738) Ferrell explained

that it was spontaneous because “if you premeditate something it’s easily planned out

and easily known” (XXVI 2739); “because we weren’t suppose to exactly do what we

did.” (XXVI 2758) The original plan was to simply pick up Heather who wanted to

run away from home. “We didn’t think anything about her parents at that time. We

didn’t think about the parent thing until ten minutes before we did it so that was kinda

spontaneous, it was premeditated.” (XXVI 2761-62) Even the discussion about

“taking someone out” before they entered the home seemed to focus on

incapacitating the victims rather than killing them. Ferrell told police that they

“decided that we would go into the house, and at least hog-tie or something her

parents...Didn’t exactly plan on beating them to death.” (XXVI 2764-65) When

asked why the pair armed themselves before entering the house, Ferrell explained that

65
he was taking precautions, “Just in case they attacked me.” (XXVI 2767-68) They

saw machetes, chainsaws, and axes in the garage, but did not grab them “...because I

didn’t plan on killing anyone...”. (XXVI 2770-71)

Once the pair entered the house, Ferrell, weapon in hand, stood over Richard

Wendorf, who was unaware of the intruders. Ferrell perceived that Mr. Wendorf

turned “around and starting to get back up...”. (XXVI 2772) At that point Ferrell

launched a frenzied attack consisting of numerous blows to Wendorf’s body. This

type of frenzied attack after the victim “makes a move” is the antithesis of a cold,

calculated, premeditated plan to kill.

The trial court relies heavily on Ferrell’s statement at Shannon Yohe’s house

on the day before the murder. This was the only evidence at all of premeditation.

The bulk of the substantial, competent evidence indicates otherwise. Dr. Krop

explained that Ferrell’s statement the day before the murders could have been a

“fantasy.” (XXV 2453-54) Dr. McMahon testified that he might have made the

statement without meaning it. (XXIX 3227-28)

The CCP factor is even less applicable to the homicide of Richard Wendorf’s

wife, Naoma Queen. After killing Mr. Wendorf, appellant encountered Queen in the

kitchen as she came from a recent shower. The victims did not know their assailants,

so there was no motive relating to witness elimination based on any recognition of the

66
boys. Understandably upset at the discovery of an intruder in her home, Queen used

her cup of hot coffee as a weapon, throwing it at Ferrell. In the ensuing act of sudden

combat, Ferrell beat Queen to death. The entire encounter lasted a few minutes at

most before Queen was rendered unconscious and dead.

This Court has previously disapproved the CCP factor where the victim overtly

confronted and physically threatened the defendant at the time of the homicide.

Blanco v. State, 452 So.2d 520 (Fla. 1984) [victim confronted and struggled with the

defendant during a burglary]; Cannady v. State, 427 So.2d 723 (Fla. 1983) [CCP

improperly found where the robbery victim jumped at the defendant before the fatal

shot.] Ferrell’s confession to authorities following his arrest reveals the lack of

“heightened premeditation.” “I was actually going to let her live, but after she lunged

at me, ... because that pissed me off.... She clawed me, spilled fucking scalding hot

coffee on me, pissed me off...so I made sure she was dead.” (XXVI 2732-33)

Ferrell’s sudden and violent encounter with Queen is diametrically opposed to the

requisite calm, cool reflection; careful plan; heightened premeditation; and absence of

justification, all of which are necessary for a finding of CCP.

Additionally, although this Court has shown great reluctance to apply the fourth

prong of CCP (without a pretense of moral or legal justification), such a pretense does

exist in this case. There was substantial evidence that the victims’ daughter, Heather

67
Wendorf, convinced Rod Ferrell (true or not) that she was being continuously

mistreated by her parents, the victims in this case. (XXVIII 3040-41; XXX 3583-

84)Heather convinced appellant that her parents must be killed in order for her to

“escape” from her harsh environment . If Heather’s allegations were true, they were

clearly not a justification for murder. A call to the appropriate authorities would have

been more appropriate. However, this aggravating factor talks of a pretense moral or

legal justification. Dr. McMahon described Ferrell as an assassin who was out to right

a wrong. (XXIX 3238-39) In the mind of a sixteen-year-old boy with a schizotypal

personality, the killings may have seemed justified at the time. This is especially true

when one considers the abusive childhood endured by Roderrick Ferrell. In Ferrell’s

mind, Wendorf and Queen had to die to stop their abuse of Heather so that she could

escape to a better life.

68
 POINT IX

THE TRIAL COURT ERRED IN FINDING THAT THE

MURDER OF NAOMA QUEEN WAS ESPECIALLY
HEINOUS, ATROCIOUS, OR CRUEL.
The trial court found that the murder (only as to one of the victims, Naoma

Queen) was especially heinous, atrocious, or cruel. The trial court wrote:

...This circumstance is clearly proved by the facts

recited above beyond a reasonable doubt. When
Ferrell confronted Naoma Queen his clothes were
blood stained from her husband’s beating and Ferrell
had the crow bar in his hands. Ms. Queen spilled hot
coffee on him, scratched his face and fought him
until she was beaten to the floor and was then beaten
in the head multiple times. It is clear from the
defensive wounds on her hands and arms as well as
Ferrell’s own description of the event that Ms.
Queen was faced with unspeakable fear and terror as
she faced and fought her murderer. These facts
support a finding of heinous, atrocious and cruel.
[Citations omitted.] This circumstance is given great
weight by the Court as it shows Ferrell’s complete
indifference to, and enjoyment of, the suffering of
Ms. Queen.

(XI 2060)

The constitutional validity of this aggravating factor depends on judicially

imposed limitations and applications. Espinosa v. Florida, 505 U.S. 1079 (1992);

Sochor v. Florida, 504 U.S. 527 (1992). In State v. Dixon, 283 So.2d 1, 9 (Fla. 1973),

this Court defined those crimes which are heinous, atrocious, or cruel:

It is our interpretation that heinous means extremely

69
 wicked or shockingly evil; that atrocious means
outrageously wicked and vile; and, that cruel means
designed to inflict a high degree of pain with utter
indifference to, or even enjoyment of, the suffering
of others. What is intended to be included are those
capital crimes where the actual commission of the
capital felony was accomplished by such additional
acts as set the crime apart from the norm of capital
felonies-the conscienceless or pitiless crime which is
unnecessarily torturous to the victim.

The United States Supreme Court relied on Dixon’s limitation of the heinousness

factor to a “conscienceless or pitiless crime which is unnecessarily tortuous to the

victim,” to approve the facial validity of the statute. Proffitt v. Florida, 428 U.S. 242

(1976). See also, Espinosa; Sochor.

This Court has further refined the definition of the HAC factor. In Cheshire v.

State, 568 So. 2d 908, 912 (Fla. 1990), this Court wrote:

The factor of heinous, atrocious or cruel is proper

only in torturous murders-those that evince extreme
and outrageous depravity as exemplified either by
the desire to inflict a high degree of pain or utter
indifference to or enjoyment of the suffering of
another.

In Richardson v. State, 604 So.2d 1107, 1109 (Fla. 1992), this Court, citing Sochor

reaffirmed that to qualify for HAC “the crime must be both conscienceless or pitiless

70
and unnecessarily torturous to the victim.” Appellant objected to the applicability of

this instruction at trial. (XXVII 2892)

Initially, appellant addresses the second prong of HAC, i.e., “unnecessarily

torturous to the victim.” One important aspect of this second prong is the time length

of the criminal episode. Ferrell’s confrontation with Queen was sudden and was over

in a matter of minutes. Indeed, Queen could have been unconscious in a matter of

seconds, certainly less than one minute. Contrary to the trial court’s finding, Queen

did not recoil in abject terror. Rather, she struck out against the intruder, taking the

offensive with a preemptive strike of scalding hot coffee. Although she eventually

lost the battle, it was not due to a fearful retreat from the fray. The murder of Naoma

Queen was many things, but it was not heinous, atrocious, or cruel.

The mere fact that Queen was beaten to death does not necessarily call for the

finding of this particular aggravating factor. This Court rejected the HAC factor in

Elam v. State, 636 So.2d 1312 (Fla. 1994), where the victim was repeatedly bashed in

the head with a brick. Like Queen, Elam’s victim was rendered unconscious in a very

short period of time. In Scott v. State, 494 So.2d 1134 (Fla. 1986), this Court found

an insufficient basis for HAC even though the victim was pinned under a car and

suffocated. There was no evidence that the victim was conscious during his ordeal.

Similarly, the medical examiner could not tell the order of the blows. (XXIII 2039)

71
Additionally, the medical examiner conceded that Queen could have been “cold-

cocked”, i.e. knocked unconscious on their feet, and still stumble a few steps before

falling. Once knocked unconscious, they would not feel any pain. (XXIII 2058-59)

The beating that Queen endured was tragic, but it was not the type of prolonged

suffering required under HAC.

Finally, it should be noted that Rod Ferrell’s mental state is a factor in the

consideration of whether or not he intended the crime to be conscienceless or pitiless.

If a murderer has no conscience he is incapable of feeling pity for his victim. The

mental health experts all agreed that Rod Ferrell suffered from a schizotypal

personality disorder. All agreed and the trial court found that Ferrell was under the

influence of extreme mental or emotional disturbance at the time of the murder. They

also concurred that, although Ferrell could appreciate the criminality of his conduct,

his ability to conform his conduct to the requirements of the law was substantially

impaired. This conclusion was based on Ferrell’s abusive childhood, his schizotypal

personality disorder, his bizarre thought processes, his excessive drug use, and his use

of hallucinogens on the night of the murders. (XI 2066-67)

This Court has recognized the interplay between a defendant’s mental state and

the application and/or wait that should be given to this aggravating factor. In Orme v.

State, 677 So.2d 258 (Fla. 1996), this Court held that a defendant’s mental or

72
emotional defects do not affect the application of HAC. Orme did recognize that the

mental condition of the defendant is used to weigh against the total case in

aggravation. However, other decisions by this Court seem to indicate that a

defendant’s mental defects can form a basic mental incapacity to intend the suffering

of the victim. These cases focus on the torturous intent required for this factor. See,

e.g., Hamilton v. State, 678 So.2d 1228 (Fla. 1996); Santos v. State, 591 So.2d 160

(Fla. 1991); Cheshire v. State, 568 So.2d 908 (Fla. 1990); Porter v. State, 564 So.2d

1060 (Fla. 1990); Huckaby v. State, 343 So.2d 29 (Fla. 1979) [ heinousness was the

direct consequence of defendant’s mental illness]; Jones v. State, 332 So.2d 615 (Fla.

1976) [stabbing victim 38 times in a frenzied attack was result of long-term paranoid

psychosis]. In Buford v. State, 403 So.2d 943 (Fla. 1981), this Court held that killings

committed in an “emotional rage” were not heinous, atrocious, or cruel. See also,

Halliwell v. State, 323 So.2d 557 (Fla. 1975) Similarly, this Court has reversed death

sentences where the heinousness of the murder resulted from the defendant’s drug or

alcohol intoxication. Holsworth v. State, 522 So.2d 348 (Fla. 1988); Ross v. State,

474 So.2d 1170 (Fla. 1985) Under any theory, the HAC factor is not supported by

substantial, competent evidence.

73
 POINT X

APPELLANT’S CRIMES ARE NOT THE MOST

AGGRAVATED, LEAST MITIGATED FIRST-
DEGREE MURDERS IN THIS STATE. A PROPER
WEIGHING OF THE VALID AGGRAVATING
FACTORS AGAINST THE SUBSTANTIAL
MITIGATION SHOULD RESULT IN A SENTENCE OF
LIFE IN PRISON WITHOUT POSSIBILITY OF
PAROLE.

As to the murders of Naoma Queen and Richard Wendorf, the trial court found

four aggravating factors but considered only three since the “pecuniary gain” factor

merged with the fact that the murders occurred during the commission of a burglary or

robbery. The trial court additionally found that Queen’s murder was especially

heinous, atrocious or cruel. However, there is not sufficient competent evidence in

the record to support this finding. See Point VIII. Additionally, there is not sufficient

competent evidence to support the trial court’s finding that either murder was

committed with the requisite “heightened premeditation.” See Point VII Appellant

cannot argue with the remaining three aggravating factors, which the trial court

correctly weighed as only two aggravating factors. However, the factor relating to

Appellant’s “prior” capital felony conviction should be given significantly less weight

in light of the fact that Ferrell’s “prior” convictions were contemporaneous, i.e., all of

them arose from this single incident. The other two aggravating factors that merged

74
into one, pecuniary gain and during the commission of a felony, are “garden variety”

aggravators that are found in the vast majority of felony murders. Mysteriously, the

trial court gave both of these circumstances “great weight.” (XI 2059-16) Appellant

recognizes the trial court’s discretion in this regard, but fails to see why these two

factors were so heavily weighed, especially the felony murder factor.

Weighed against the valid but insubstantial aggravation, is the abundance of

mitigation that the trial court recognized and accepted in its entirety. The trial court

found both mental mitigating factors (under the influence of extreme mental or

emotional disturbance as well as the fact that his capacity to conform his conduct to

the requirements of the law was substantially impaired). However, the trial court

again mysteriously gave one of these factors “some weight” and the other

“considerable weight.” (XI 2066-67) The trial court also found Rod Ferrell’s

chronological age of sixteen and emotional age of three as mitigation but only gave it

“significant weight” rather than great weight. (XI 2067) As addressed elsewhere in

this brief, Ferrell’s tender age should carry the day in this case resulting in a sentence

of life imprisonment without any possibility of parole rather than death in Florida’s

electric chair. Again recognizing the trial court’s discretion in this regard, this

mitigating factor should have been given great weight. A proper weighing reveals

life imprisonment to be the appropriate sentence in this case.

75
 The trial court agreed that the evidence established nineteen nonstatutory

mitigating factors. (XI 2068-73) Many of these factors relate to Rod’s abusive

childhood and dysfunctional family. 3 Indeed, the trial court called Ferrell’s

environment “one of the most dysfunctional family environments anyone could ever

be cursed to be raised in...”. (XXXI 3623) The trial judge also conceded that

Ferrell’s family failed him and that society failed him. (XXXI 3624-25)

Aside from Ferrell’s dysfunctional family, the trial court recognized that Ferrell

suffers from schizotypal personality disorder. (XI 2068) The trial court also

recognized Ferrell’s history of multiple drug use and the fact that he was under the

influence of drugs at the time of the murders. (XI 2071; XXIV 2381-82) There was

evidence that Ferrell took approximately eight “hits” of LSD on the day of the

murders. (XXIX 3228-30) One doctor diagnosed him as suffering from

polysubstance abuse. (XXIII 2161, 2179) The court also accepted the fact that

Ferrell has adapted to a structured environment and is capable of functioning in prison.

(XI2073) Additionally, Ferrell took responsibility for the crimes, pleading guilty as

3
Although Ferrell just recently turned nineteen on Florida’s death row, his
situation calls to mind Merle Haggard’s song, “I turned twenty-one in prison doing life
without parole . . .. Mama tried, Mama tried.” In contrast, Rod Ferrell’s “mama”
clearly did not try to raise him right, even engaging in Satanic ritual and cult activity
herself. The trial judge announced at sentencing that Ferrell’s mother should be on
trial, that she thwarted every attempt to get psychological help for Rod. (XXXI 3623)
76
charged. (XI 2072) The trial court pointed out that Ferrell will be removed from

society for the rest of his life with the two life sentences on the noncapital offenses as

well as the sentences for the murders. (XI 2073)

Finally, although not in his findings of fact, the trial court seemed extremely

bothered by the unequal treatment of Ferrell compared to Heather Wendorf, the

victims’ daughter. At the sentencing, the trial court stated on the record:

It is the opinion of this Court after having heard the

testimony of numerous witnesses throughout the
course of this trial that significant questions remain
regarding the involvement of Heather Wendorf in the
murder of her parents...[We] have heard testimony
from numerous witnesses and seen exhibits and
evidence in this trial, witnesses who have told us
they have never testified before the grand jury in
Lake County regarding this matter. It is the strong
suggestion of this Court to Mr. King, our elected
State Attorney , that the grand jury be reconvened,
these witnesses be presented to the grand jury in
efforts that Lake Countians can understand once and
for all whether or not Heather Wendorf is, in fact
involved in these brutal killings.

(XXXI 3621-22) The State Attorney did in fact reconvene the grand jury which after

two separate sessions, found no probable cause to believe that Heather Wendorf was a

knowing participate in the murders. (XXX 3599); See attached appendix. Both grand

jurys found that, although Heather clearly acted inappropriately the week of the

murders and chose her associates and activities unwisely, there was insufficient

77
evidence to charge her with any crime.

Much of the evidence at trial points to Heather Wendorf as the catalyst for this

entire, tragic chain of events. The fact that Rod Ferrell will be executed for these

crimes while Heather Wendorf remains scot-free, smacks of unfairness.

78
 POINT XI4

CAPITAL PUNISHMENT OF A 16-YEAR-OLD CHILD

OFFENDER VIOLATES INTERNATIONAL LAW
AND THE CONSTITUTION OF FLORIDA AND THE
UNITED STATES.

“The international human rights movement is premised on the belief that

international law sets a minimum standard . . . for the treatment of human beings

generally.” DeSanchez v. Banco Central De Nicaragua, 770 F.2d 1385, 1397 (5th Cir.

1985). An international standard expressly condemns state execution of child

offenders.5 This was noted by the Organization of American States in Resolution

3/87, Case 9647, where the Inter-American Commission on Human Rights found that

the United States violated Articles I and II of the American Declaration of the Rights

and Duties of Man when Texas executed two 17-year-old offenders:

The Commission finds that this case arises, not because of

doubt concerning the existence of an international norm as to

4
This argument is currently before this Court in Jeffrey Farina v. State, case
no. 93,907, whose initial brief was served the day before Appellant’s brief.
5
Convention on the Rights of the Child, Article 37(a); International Covenant
on Civil and Political Rights, Article 6(5); American Convention on Human Rights,
Article 4(5); Safeguards Guaranteeing Protection of the Rights of Those Facing the
Death Penalty, Safeguard 6; United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (“The Beijing Rules”), Rule 17.2; Fourth Geneva
Convention of 12 August 1949 Relative to the Protection of Civilian Persons in Time
of War, Article 68.

79
 the prohibition of the execution of children but because the
United States disputes the allegation that there exists
consensus as regards the age of majority.

Resolution 3/87, Case 9647, paragraph 56. (VI,778-79) The United States, alone, is

the only civilized nation that executes children.

The death penalty for juvenile offenders is an almost uniquely

American pastime. This practice appears to have been
abandoned everywhere in large part due to the express
provisions of the United Nations Convention on the Rights of
the Child and of several other international treaties and
agreements. For example, the U.N. Convention (Article
37(a)) provides that “Neither capital punishment nor life
imprisonment without possibility of release shall be imposed
for offences committed by persons below eighteen years of
age.” The United States is literally the only country in the
world that has not yet ratified this international
agreement, in large part because of the American desire to
remain free to retain the death penalty for juvenile offenders.

V. Streib, “The Juvenile Death Penalty Today: Death Sentences and Executions for

Juvenile Crimes, January 1973-October, 1998,” page 7 (emphasis added).

The United States has signed and ratified the International Covenant on Civil

and Political Rights (“ICCPR”). Article 6 (5) states, “Sentence of death shall not be

imposed for crimes committed by persons below eighteen years of age and shall not be

carried out on pregnant women.” When the ICCPR was ratified the United States

tried to reserve a “right, subject to Constitutional restraints, to impose capital

80
punishment on . . . persons below eighteen years of age.” 138 Congressional

Record, §4781-01, §783-84 (daily edition, April 2, 1992). This attempted reservation

of a right to execute child offenders has been found to be invalid because it is at odds

with the object and purpose of the ICCPR:

The Special Rapporteur shares the views of the Human Rights

Committee and considers that the extent of the reservations,
declarations and understandings entered by the United States
at the time of ratification of the ICCPR are intended to ensure
that the United States has only accepted what is already the
law of the United States. He is of the opinion that the
reservation entered by the United States on the death penalty
provision is incompatible with the object and purpose of the
treaty and should therefore be considered void.

Paragraph 140, “Report of the Special Rapporteur on Extrajudicial, Summary or

Arbitrary Executions,” Bacre Waly Ndiaye, submitted pursuant to Commission

resolution 1997/61. See William A. Schabas, “Invalid Reservations to the

International Covenant on Civil and Political Rights: Is the United States Still a

Party?,” 21 Brook.J.Int’l.L. 277, 318-19 (1995); Ved P. Nanda, “The United States

Reservation to the Ban on the Death Penalty for Juvenile Offenders: An Appraisal

Under the International Covenant on Civil and Political Rights,” 42 DePaul L.Rev.

1311, 1331-32 (1993). Historically, the reservation of a right to disregard an integral

part of a treaty is invalid. See Restatement (Third) of the Foreign Relations Law of the

United States § 313 (1987). Execution of child offenders is also proscribed by these

81
agreements as cruel and unusual punishment.

Our independent states are necessarily precluded from violating the terms of

valid international agreements. Article VI, Section 2 (The Supremacy Clause) of the

United States Constitution makes “as binding within the territorial limits of the states

as they are elsewhere throughout the dominion of the United States.” Baldwin v.

Franks, 120 U.S. 678, 683 (1887). In that regard, “[t]he word ‘treaty’ has more than

one meaning. Under international law, the word ordinarily refers to an international

agreement between sovereigns, regardless of the manner in which the agreement is

brought into force.” Weinberger v. Rossi, 456 U.S. 25, 29 (1982). The ICCPR is at

the very least a compact between the United States and other governments not to

execute child offenders. As such it supercedes conflicting state statutes irrespective of

the Supremacy Clause. United States v. Belmont, 301 U.S. 324 (1937). If the United

States can enter into international treaties that prevent states from killing birds within

their boundaries, and it has, Missouri v. Holland, 252 U.S. 416 (1920), it surely can

enter into international treaties that prevent states from killing children within its

boundaries.

There can be no doubt that Roderick Ferrell was a “child” when he committed

this offense. A 16-year-old is a child under internationally accepted definition. See,

e.g., The Convention on the Rights of the Child; “Report of the Third Committee on

82
Agenda Item 108, U.N. GAOR, 44th Session, Annex, Agenda item 108, at 15, U.N.

Doc. A/44/736 (1989). A 16-year-old is a child under Florida law. § 39.01(10), Fla.

Stat. (1997). A 16-year-old is a child under federal law. 18 U.S.C. § 5031.

Capital punishment of a 16-year-old child offender violates current minimum

international standards of human rights and customary international law. The United

States has recognized that customary international law sets a minimum standard of

conduct to be followed and applied by the courts of civilized nations when properly

raised and timely presented:

International law is part of our law, and must be

ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right
depending upon it are duly presented for their deter-mination.
For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be
had to the customs and usages of civilized nations, and, as
evidence of these, to the works of jurists and commentators
who by years of labor, research, and experience have made
themselves peculiarly well acquainted with the subjects of
which they treat. Such works are resorted to by judicial
tribunals, not for the speculations of their authors concerning
what the law ought to be, but for trustworthy evidence of what
the law really is.

The Paquete Habana, 175 U.S. 677, 700 (1900). A review of Paquete is instructive.

The United States seized two privately owned fishing vessels, “The Paquete Habana”

and “The Lola,” as prizes during the Spanish-American War. The seizure of fishing

83
vessels as prizes of war was not covered by either statute or treaty between the United

States and Spain, though treaties existed between other countries. The Court reviewed

the historic treatment of fishing boats during times of war and, noting the practice of

“civilized” nations, held that by general consent of civilized nations of the world it is

established international law that coast fishing vessels, with their implements and

supplies, cargoes and crews, are exempt from capture as prize of war. Paquete, 175

U.S. at 708. Likewise, state execution of 16-year-old children is repugnant to

civilized nations by a clear international consensus.

The United States government solely has the power to enter into agreements

with other nations and its actions must necessarily transcend the ability of a state to

violate international agreements. A state has the power to punish criminal conduct,

protect society and protect the interests of its citizens within the bounds of express

agreements made by the United States and the international standards of human rights

recognized by civilized nations. An international treaty that excepts from its control

the customary practices of its independent states would eviscerate all agreements

made by any country that has local governments. An international treaty setting forth a

minimum standard of human rights is an evolving standard of decency that must be

recognized by the courts.

Rather than execute the children within its boundaries, every state is

84
historically compelled to protect them under the doctrine of parens patriae:

The concept of parens patriae is derived from the English

constitutional system. As the system developed from its
feudal beginnings, the King retained certain duties and
powers, which were referred to as the ‘royal prerogative.’
(Citations omitted). These powers and duties were said to be
exercised by the King in his capacity as ‘father of the
country.’ Traditionally, the term was used to refer to the
King’s power as guardian of persons under legal disabilities
to act for themselves. For example, Blackstone refers to the
sovereign or his representative as ‘the general guardian of all
infants, idiots, and lunatics,’ and as the superintendent of ‘all
charitable uses in the kingdom.’ In the United States, the
‘royal prerogative’ and the ‘parens patriae’ function of the
King passed to the States.

Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 257 (1972) (footnotes

omitted). Thus, historically and for sound moral reason, children of civilized nations

are protected by the state governments. As guardians of fundamental rights of its

people, the courts of civilized states must recognize the international illegality of state

execution of infant offenders:

[P]reference for legislative treatment cannot shackle the

courts when legally protected interests are at stake. As people
seek to vindicate their constitutional rights, the courts have no
alternative but to respond. Legislative inaction cannot serve
to close the doors of the courtrooms of this state to its citizens
who assert cognizable constitutional rights.

Satz v. Perlmutter, 379 So.2d 359, 360 (Fla.1980). Perlmutter is apt here because it

85
involves legislative inaction. A claim exists that the ICCPR is not enforceable because

it is not “self executing.” See Igartua De La Rosa v. U.S., 32 F.3d 8, 11 fn.1 (1st Cir.

1994). Assuming but not conceding6 that some provisions of the ICCPR may not be

self-executing, the “not self-executing” argument cannot forestall recognition of

fundamental rights protecting human life:

We think it appropriate to observe here that one of the

exceptions to the separation of powers doctrine is in the area
of constitutionally guaranteed or protected rights. The
judiciary is in a lofty sense the guardian of law of the land and
the Constitution is the highest law. A constitution would be
a meaningless instrument without some responsible agency of
government having authority to enforce it. . . . When the
people have spoken through their organic law concerning their
basic rights, it is primarily the duty of the legislative body to
provide the ways and means of enforcing such rights;
however, in the absence of appropriate legislative action, it is
the responsibility of the courts to do so.

Perlmutter, 379 So.2d at 360-361, quoting Dade County Classroom Teachers Ass’n v.

Legislature, 269 So.2d 684, 686 (Fla.1972).

Capital punishment for this child offender is otherwise barred by art. I, §§ 2, 9,

16 & 17, Fla. Const. and the Eighth and Fourteenth Amendments. It is cruel and

unusual punishment under international law and thus disproportionate under Florida

6
Using a similar separation of powers analysis, the Constitutional power of the President
to recognize basic human rights on behalf of the United States in his dealings in foreign
policy cannot be thwarted by partisan inaction by the Legislative branch in failing to pass
“enabling” legislation.
86
law. Tillman v. State, 591 So.2d 167, 169 (Fla.1991). Florida has determined that,

consistent with Thompson v. Oklahoma, 487 U.S. 815 (1988), fifteen-year-old

offenders are ineligible for the death penalty. Allen v. State, 636 So.2d 494

(Fla.1994). The holding in Allen was based primarily on Florida law. This Court has

not yet decided this question for sixteen-year-old offenders under Florida law. But see

Stanford v. Kentucky, 492 U.S. 361 (1989).

The death penalty for this 16-year-old offender is disproportionate under the

facts established below. In that regard, except for the jury recommendation, the facts

in Hegwood v. State, 575 So.2d 170 (Fla.1991) are far more egregious than here

because three people died there. In Hegwood, a 17-year-old youth killed three

Wendy’s employees during an armed robbery in Ft. Lauderdale. The same statutory

aggravating factors that exist here were also found there. Hegwood, 575 So.2d at 173,

fn.8. Essentially the same mitigation supported a life sentence.

Appellant raised the issue of his youth at the trial level. (XI 1965-68) Since

Furman v. Georgia, this Court has never approved imposition of the death penalty for

a 16-year-old offender. It should not do so here. The mental health experts pointed

out that Ferrell’s emotional age was much younger than his chronological age. (XXV

2456-57) Dr. McMahon testified that Rod’s emotional age was equal to that of a

three-year-old. (XXIX 3267-68) In addition to Ferrell’s chronological and emotional

87
age, the plethora of mitigation in this particular case cries out for mercy. Rod Ferrell

has adapted to a structured environment and should spend his life in prison. We

should not execute him.

88
 CONCLUSION

Based upon the foregoing cases, authorities, policies, and arguments, Appellant

respectfully requests this Honorable Court to vacate the death sentences and remand

for the imposition of sentences of life imprisonment without possibility of parole.

Alternatively, this Court should remand for a new penalty phase.

Respectfully submitted,
JAMES B. GIBSON
PUBLIC DEFENDER
SEVENTH JUDICIAL CIRCUIT

________________________
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NO. 0294632
112 Orange Avenue, Suite A
Daytona Beach, FL 32114
(904) 252-3367
ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been
hand- delivered to the Honorable Robert A. Butterworth, Attorney General, 444
Seabreeze Boulevard, Fifth Floor, Daytona Beach, Florida 32118, via his basket at the
Fifth District Court of Appeal and mailed to Roderrick Ferrell, #124473, Florida State
Prison, P.O. Box 181, Starke, FL 32091-0181, this 26th day of May, 1999.
________________________________
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER

89
 CERTIFICATE OF FONT

I hereby certify that the size and style of type used in this brief is point

proportionally spaced CG Times, 14 pt.

____________________________
CHRISTOPHER S. QUARLES
ASSISTANT PUBLIC DEFENDER

90
 IN THE SUPREME COURT OF FLORIDA

RODERRICK FERRELL, )
)
Appellant, )
)
vs. ) CASE NUMBER 93,127
)
STATE OF FLORIDA, )
)
Appellee. )
_____________________ )

APPENDIX

Presentment of the Grand Jury

91