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  1. #1
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    Brooks Case REVISIT

    I found something kind of interesting today that might be worth exploring.
    If I am understanding the bit of research that I did, if the cause of the childs death was a single act of aggravated child abuse, it should be merged with the homicide charge and not be used as an underlying felony which would make felony murder unavailable .. Now if there are separate acts of child abuse then felony murder could apply. This is where not having the cause of death could be a critical piece of information. because I wonder if the inability to prove the aggravated child abuse apart from the cause of death, then the SA would have to prove premeditated murder and could not rely on felony murder to get a first degree murder conviction.
    There is a lot of information at the link and perhaps there is more I have not found yet, but I thought it was certainly worth looking into anyway.


    >>

    One problem the Supreme Court of Florida has periodically had to deal with is the
    Legislature’s proclivity to widen the definition of common law crimes based upon the most recent

    horrendous murder. The addition of aggravated child abuse to the list of felonies available as an

    aggravating circumstance is the most recent example of this problem.

    Unlike felony murders such as murder committed during the course of a robbery, which

    requires two distinct crimes--robbery and homicide - a homicide that involves aggravated child abuse

    may only require one single act - child abuse. The court addressed this problem in Brooks v. State.343

    In Brooks, the defendant caused the death of a child with a single stabbing blow. He argued the

    felony-murder rule should not apply under the circumstances, and the State should have been limited

    to proving premeditation for a first-degree murder conviction. In analyzing this argument the Court

    stated:

    Brooks argues on appeal that the trial court erred by finding that he committed

    the murders during the course of a felony, which was aggravated child abuse as

    defined by statute, and then applying the aggravated child abuse aggravating

    circumstance set forth in section 921.141(5)(d), Florida Statutes (2002), during

    sentencing. He contends that because the single act of stabbing Stuart formed the

    basis of both the aggravated child abuse aggravating factor under section

    921.141(5)(d) of the Florida Statutes and the first-degree felony murder charge, the


    court should have found that the aggravated child abuse allegation “merged” with the

    more serious homicide charge. Thus, according to Brooks, the State should have been

    totally precluded from invoking the felony murder doctrine and should have been

    limited to proving first-degree murder only on the theory of premeditation for both

    murders. Brooks does not merely attack the use of the underlying felony as an

    aggravator; he asserts that the state is prohibited from using aggravated child abuse
    as the felony crime. We agree.
    The Court went on to explain that it may be possible under different facts for the felonymurder
    rule to apply to child abuse cases. But a separate act or acts of child abuse such a striking,






    shaking or throwing must be proven in order to invoke the felony murder rule.344<<


    pdf page 63
    More at link
    Last edited by JBean; 12-30-2009 at 11:07 PM. Reason: clarify wording streamlined the quote TMI

  2. #2
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    If I am understanding the bit of research that I did, if the cause of the childs death was a single act, it should be merged with the homicide charge and not be used as an underlying felony making felony murder unavailable. Now if there are separate acts of child abuse then felony murder could apply. This is where not having the cause of death could be a critical piece of information. because I wonder if the inability to prove the aggravated child abuse apart from the cause of death, then the SA would have to prove premeditated murder.
    There is a lot of information at the link and I am sure i could be misinterpreting something, but I thought it was certainly worth looking into.

  3. #3
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    In this case they tried to use the Brooks v State case to overturn another felony murder conviction with agg child abuse as the underlying felony. The conviction was upheld because unlike the Brooks case, the cause of death was not the identical act of child abuse.
    http://www.5dca.org/Opinions/Opin200...05-1310.op.pdf


    In
    Brooks, the defendant killed an infant child by a single act of stabbing the
    child. Brooks argued the state was precluded from relying on the felony murder statute 2
    to prove first degree murder because the act constituting the underlying felony of
    aggravated child abuse was the identical act which caused the child's death. Our
    supreme court agreed, finding "the act constituting the aggravated child abuse merged
    into the infant's homicide." Brooks at 198.

    snip

    In analyzing


    Lukehart and Mapps, the Brooks court acknowledged that generally
    aggravated child abuse can be a separate charge and also serve as the underlying
    felony in a felony-murder charge. Brooks at 198. Therefore, it appears the Brooks
    holding is limited to those unique cases in which there is a single instantaneous act by
    the defendant which constitutes both the aggravated child abuse and the act causing
    the child's death.
    In the present case, the facts supported a finding that the aggravated child abuse
    committed by Dorsey was not a single instantaneous act.


  4. #4
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    So it seems JBean that the aggravated child abuse not only has to be included on the indictment but also must be shown to be a separate act than that which killed Caylee to be used as the underlying felony for a felony murder conviction.

    From the case law you cited, aggravated child abuse appears to be unique among underlying felonies for felony murder.

    I wonder if or how the state will show aggravated child abuse separate from the act which killed Caylee.


  5. #5
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    I am confused...this FL DOC web page shows Brooks as still on Death Row.

    http://www.dc.state.fl.us/ActiveInma...onID=856481129

    After further review, the records (I believe) show that the FL Supreme Court did overturn Brooks conviction, but then the conviction and death sentence were later upheld. It's hard to understand, maybe someone with some legal knowledge could help explain. The following shows his appeals process...

    Appeal Summary:

    Florida Supreme Court – Direct Appeal

    11/13/98 Appeal filed

    04/05/01 FSC overturned convictions, vacated sentences, and remanded for a retrial

    06/04/01 Rehearing denied

    07/05/01 Mandate issued

    Florida Supreme Court – Direct Appeal (after retrial)

    03/06/02 Appeal filed

    06/23/05 FSC affirmed convictions and sentences


    Factors Contributing to the Delay in Imposition of Sentence:

    Brooks’ original conviction and sentence were overturned.

    More information at link...

    http://www.floridacapitalcases.state...Htm/124538.htm
    Last edited by Searchfortruth; 12-27-2009 at 10:31 AM.

  6. #6
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    Quote Originally Posted by Searchfortruth View Post
    I am confused...this FL DOC web page shows Brooks as still on Death Row.

    http://www.dc.state.fl.us/ActiveInma...onID=856481129

    After further review, the records (I believe) show that the FL Supreme Court did overturn Brooks conviction, but then the conviction and death sentence were later upheld. It's hard to understand, maybe someone with some legal knowledge could help explain. The following shows his appeals process...

    Appeal Summary:

    Florida Supreme Court – Direct Appeal

    11/13/98 Appeal filed

    04/05/01 FSC overturned convictions, vacated sentences, and remanded for a retrial

    06/04/01 Rehearing denied

    07/05/01 Mandate issued

    Florida Supreme Court – Direct Appeal (after retrial)

    03/06/02 Appeal filed

    06/23/05 FSC affirmed convictions and sentences


    Factors Contributing to the Delay in Imposition of Sentence:

    Brooks’ original conviction and sentence were overturned.

    More information at link...

    http://www.floridacapitalcases.state...Htm/124538.htm
    I have to do some research, but my initial guess would be that he got a new trial because the jury was instructed to consider felony murder when it should not have been available in the first trial.
    Then he got a new trial but was convicted anyway and appeals were denied or convictions upheld. That is just a guess i have not looked yet.ETA: Ok I just took a look and i think maybe the SA was allowed to use felony murder to get a first degree murder conviction and they should have been required to prove premeditation to get the first degree murder conviction. Which I am guessing they were able to do in the subsequent re trial.

    Trial Summary:

    First Trial:

    05/23/96 Indicted as follows:
    Count I: First-Degree Murder (Rachel Carlson)
    Count II: First-Degree Murder (Alexis Stuart)
    04/10/98 Jury returned guilty verdicts on both counts of the indictment
    04/19/98 Jury recommended death by votes of 10-2
    09/29/98 Sentenced as follows:
    Count I: First-Degree Murder (Rachel Carlson) – Death
    Count II: First-Degree Murder (Alexis Stuart) – Death

    Second Trial:

    01/23/02 Jury returned guilty verdicts on both counts of the indictment
    01/30/02 Jury recommended death by votes of 9-3 (Count I) and 11-1 (Count II)
    02/25/02 Sentenced as follows:
    Count I: First-Degree Murder (Rachel Carlson) – Death
    Count II: First-Degree Murder (Alexis Stuart) – Death
    Last edited by JBean; 12-30-2009 at 09:26 PM.

  7. #7
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    This article from WESH mentions the states reasons for seeking the DP, "sufficient aggravating circumstances". I am forgetting major parts of this case, the longer it drags on, but thats another topic.

    State To Seek Death Penalty For Casey Anthony

    "Previously, the state said it would not seek the death penalty for Anthony, who is in the Orange County Jail charged with first-degree murder in connection with the death of her daughter, Caylee."

    "The state attorney's office is citing "sufficient aggravating circumstances" as the reason for Monday's decision."

    "In December, prosecutors told WESH 2 News they were lacking just what they concluded they had Monday -- aggravating circumstances. In its notice to the court around that time, the state attorney's office wrote, "It is not in the best interest of the people of the State of Florida to pursue the death penalty."

    "Those circumstances include: that the killing was heinous, atrocious, cruel or depraved, involved substantial planning and premeditation, was committed without pretense of moral or legal justification, was committed by a person with previous felonies, or happened while another felony was being committed."

    http://www.wesh.com/news/19168682/detail.html
    Last edited by Searchfortruth; 12-27-2009 at 02:04 PM.

  8. #8
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    Quote Originally Posted by JBean View Post
    Exactly! That is what the SA would have to prove. Premeditation is of course the issue at hand and my question, because if they prove that the rest is moot.Previous felonies is going to be arguable,imo because of the nature of the felonies, and during the commission of a felony is the aggravated child abuse, which is what we are talking about.
    From listening to Mr. Ashton, in the recent hearing, I believe the state will use the time it took Casey to tear off the pieces of duct tape as evidence of premeditation. The way he said that the killer tore off one piece, then another, and then a third, leads me to believe this is their strategy.

    As for the prior criminal history (check fraud), I don't know if this needs to only be a felony or if a violent crime must have taken place. Since they are pushing for the check trial first, I am guessing that a felony conviction, of any sort, will qualify ?

  9. #9
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    Here is a link to the arguments made and decisions rendered, by the FL Supreme Court, in the Lamar Brooks appeal. It is very long and I am still trying to digest it. The first part covers insurance policy evidence and witness testimony during the trial (not applicable to this case). Almost half way down the page there is a section on the one Agg. Child Abuse charge underlying the Felony Murder charge in his case. The Judges responses on these matters are towards the end of the page.

    Just from what I am reading there may be argument on a felony murder conviction that uses the single act of child abuse as an underlying factor. I am not a legal pro either, so if I misunderstand I do appreciate corrections !

    http://vlex.com/vid/lamar-z-brooks-v...ellee-20850136
    Last edited by Searchfortruth; 12-27-2009 at 03:16 PM.

  10. #10
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    Quote Originally Posted by Searchfortruth View Post
    Here is a link to the arguments made and decisions rendered, by the FL Supreme Court, in the Lamar Brooks appeal. It is very long and I am still trying to digest it. The first part covers insurance policy evidence and witness testimony during the trial (not applicable to this case). Almost half way down the page there is a section on the one Agg. Child Abuse charge underlying the Felony Murder charge in his case. The Judges responses on these matters are towards the end of the page.

    Just from what I am reading there may be argument on a felony murder conviction that uses the single act of child abuse as an underlying factor. I am not a legal pro either, so if I misunderstand I do appreciate corrections !

    http://vlex.com/vid/lamar-z-brooks-v...ellee-20850136
    Oh I did read that link and found this to be of interest:


    Upon retrial, Brooks was again convicted and sentenced to death. The jury recommended the death sentence by a nine-to-three vote for the murder of Carlson, and an eleven-to-one vote for the murder of Stuart. The trial court followed the







    - 2 -





    recommendations, finding the following factors in aggravation for the murders of both Carlson and Stuart:1 (i) the previous conviction of another capital felony; (ii) the commission of a capital felony in a cold, calculated, and premeditated manner (CCP); (iii) the commission of a capital felony for pecuniary gain; and (iv) that the murder occurred during the commission of the felony of aggravated child abuse.


    The trial court also found that Carlson's murder was especially heinous, atrocious, or cruel (HAC). Despite Brooks' waiver of the right to present mitigating evidence, defense counsel described to the trial court the mitigating evidence he would have presented, and the trial court found several factors in mitigation.2











    1. The trial court refused to consider that Stuart was less than twelve years of age in aggravation, finding that consideration of that factor would constitute improper doubling with the aggravating factor of murder in the course of a felony predicated on aggravated child abuse. If an aggravated child abuse felony aggravating factor were not available, the factor of victim less than twelve years of age would be appropriate.






    2. These factors included: Brooks' lack of significant criminal history (little weight); age of twenty-three at the time of the offense (little weight); strong family ties and participation in community affairs (very little weight); status as his family's only living son (some weight); military service (little weight); good character and ability to establish loving relationships (little weight); status as the father of a six-year-old child (some weight); courtroom behavior and demeanor (some weight); regular church attendance and Christian training (little weight); and employment history (little weight). The trial court also considered Davis's sentence of life in prison (little weight); the sufficiency of life in prison without parole as punishment (little weight); and the sufficiency of life in prison without parole as protection for society (some weight).


  11. #11
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    I do like the response, below, from Justice Lewis (who is still on the FL Supreme Court, which may be bad news for Casey and any future appeals).

    "Thus, in my view, the felony murder statute clearly captures all instances of aggravated child abuse, regardless of whether a single violent act constitutes the abuse and simultaneously causes the child's death in this context."

    "In these circumstances the statutes and the law do not limit the State to only premeditation."

    "The plain statutory language reflects a policy decision to protect the children of this state by subjecting those whose acts of child abuse produce death to the highest possible penalty."

    http://vlex.com/vid/lamar-z-brooks-v...ellee-20850136
    Last edited by Searchfortruth; 12-27-2009 at 03:55 PM.

  12. #12
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    Quote Originally Posted by AZlawyer View Post
    IIRC from our lengthy exchanges with Wudge months back, in order for the jury to be instructed on felony murder, the indictment must include the murder charge and also must include the felony charge that would provide the basis for a felony murder charge, but doesn't actually have to include the felony murder charge.

    I think impatientredhead agrees with this. (crossing fingers and awaiting her response)
    AZLawyer, if you get a chance to read this, i would love your thoughts.

    From what I have been able to determine, if the state is going to argue that the aggravated child abuse they are charging her with is specifically the act that killed Caylee, then the jury cannot consider felony murder because the act of abuse is a part of the homicide or merged into the homicide. But if the aggravated abuse is separate from the homicide, then felony murder would be open for consideration. I have looked into doubling and the FL merger doctrine and it is almost a double jeopardy type situation if the jury is allowed to consider the aggravated child abuse as the underlying felony for felony murder because they are part of one another. If the specific act of child abuse killed her then all the elements of the child abuse would be included in the murder charge.

    But, if the aggravated child abuse charge represents something else, some other abuse that perhaps led to her death or contributed to her death then it would be an appropriate underlying felony for felony murder. (not reporting her missing, drugging her etc.)

    I know that we are using Knight v State for our reference:
    .Under Knight v. State, 338 So.2d 201 (Fla. 1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state andif supported by the evidence, although it is not a lesser included offense.

    but in our discussions,what we have skimmed over is the part I bolded and underlined. Does the evidence support child abuse aside from actually killing her in order to make felony murder available to the jury? Do you think not having cause of death will impact any of this?

    IMO, this is why they charged her with premeditated murder and aggravated child abuse rather than felony murder. I have always thought that premeditated murder would be harder to prove than felony murder. but after reading about merging and doubling,I can see why it could be more difficult, in this case, to prove felony murder, because the felony would have to be independent of the homicide itself.

    I may have this all wrong, but that is why I am putting it out there.

    Just to clarify, this is only addressing the ability of the jury to consider felony murder with aggravated child abuse as the underlying felony if it is that specific act of child abuse that killed her and that is what the state's contention is.
    TIA

  13. #13
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    In the present case, the facts supported a finding that the aggravated child abusecommitted by Dorsey was not a single instantaneous act.

    BBM- I think the jury will be instructed on both options. The application of the duct tape is either premeditated intent to kill her or it is an act of aggravated child abuse resulting in her death but it is not an instantaneous act. Both the time it would take to apply it and the amount of time it would take for this act to become fatal to the victim are far from instantaneous.
    Last edited by impatientredhead; 12-30-2009 at 12:50 AM. Reason: eta

  14. #14
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    Quote Originally Posted by impatientredhead View Post
    In the present case, the facts supported a finding that the aggravated child abusecommitted by Dorsey was not a single instantaneous act.

    BBM- I think the jury will be instructed on both options. The application of the duct tape is either premeditated intent to kill her or it is an act of aggravated child abuse resulting in her death but it is not an instantaneous act. Both the time it would take to apply it and the amount of time it would take for this act to become fatal to the victim are far from instantaneous.
    Thank you IPR. I suppose the argument would be if the goal of the the duct tape was to kill her, then the act of child abuse would be an element of the homicide aka premeditated murder. There would not be a separate independent act of child abuse.
    But also, it could be merely not providing for the child for 31 days and being derelict in her care would be an act of child abuse in and of itself or maybe there is something else, which would possibly provide for the underlying felony thus leaving the duct tape as an aspect of the premeditated murder.

    >>Thus, according to Brooks, the State should have been

    totally precluded from invoking the felony murder doctrine and should have been

    limited to proving first-degree murder only on the theory of premeditation for both

    murders. Brooks does not merely attack the use of the underlying felony as an

    aggravator; he asserts that the state is prohibited from using aggravated child abuse

    as the felony crime. We agree.
    The Court went on to explain that it may be possible under different facts for the felonymurder
    rule to apply to child abuse cases. But a separate act or acts of child abuse such a striking,


    shaking or throwing must be proven in order to invoke the felony murder rule.<<

    ETA: I don't know if this was a successful argument, but it was made on behalf of Lionel tate:

    >>
    It was also error to apply the felony-murder doctrine in this
    case, because the felony-murder rule only applies if the
    underlying felony is independent of the conduct which kills, or
    involves separate conduct from the acts of personal violence
    which constitute a necessary part of the homicide itself. In this
    case, aggravated child abuse merges with the homicide.<<

    http://www.law.ufl.edu/centers/childlaw/pdf/tate.pdf
    Last edited by JBean; 12-30-2009 at 02:09 AM.

  15. #15
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    maybe the state is going to say....the restrain of caylee before the final three pieces of tape.....either by chemical or physical-holding her down-or applying tape to her legs and arms....would be considered child abuse...

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