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.

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,​

pdf page 63
More at link

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.

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/Opin2006/112706/5D05-1310.op.pdf


In

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.
​

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.

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

http://www.dc.state.fl.us/ActiveInmates/detail.asp?Bookmark=1&From=list&SessionID=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.fl.us/case_updates/Htm/124538.htm

Searchfortruth said:

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

http://www.dc.state.fl.us/ActiveInmates/detail.asp?Bookmark=1&From=list&SessionID=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.fl.us/case_updates/Htm/124538.htm

Click to expand...

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

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

JBean said:

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.

http://vlex.com/vid/lamar-z-brooks-vs-state-florida-appellee-20850136

Click to expand...

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 ?

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-vs-state-florida-appellee-20850136

Searchfortruth said:

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-vs-state-florida-appellee-20850136

Click to expand...

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).

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-vs-state-florida-appellee-20850136

AZlawyer said:

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)

Click to expand...

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

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.

impatientredhead said:

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.

Click to expand...

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






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

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...

TakeNote said:

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...

Click to expand...

I think they could say that and the very act you describe are all the elements of first degree premediated murder which is what makes the felony merge with the homicide,imo.
So, if they can prove all that they would have premeditation and aggravated child abuse which is exactly what she is charged with and imo why they charged her with that and why felony murder may not apply.

It's just a thought. This isn't even a big deal, i was just reading a a site that link beanE posted and I thought it was really interesting and I learned a lot.

Perhaps we can get an attorney to chime in at some point; but in the mean time it has been enlightening.

im learning a lot too! JBean.....at first hubby thought i was crazy.....but now...hubby might be getting me.....LOL....

especially when i say something smart about the law or scientific stuff im learning.....he will say to his friends......she has been learning a lot from w/s :biggrin:....or he will say....she knows what she is talking about....LOL....they have that sunshine law in FL.....LOL

I am still having a hard time understanding the argument, by the FL Supreme Court, that a single act of child abuse, which leads to a death, does not qualify as Felony Murder. In other instances of Felony Murder (robbery) this same rule is not in question. One incident of robbery, where a death ensues as a result of the robbery, qualifies for a felony murder charge. I realize that the court has not decided totally on this matter (death resulting from a single act of child abuse), but just the fact that they are in disagreement worries me.

Searchfortruth said:

I am still having a hard time understanding the argument, by the FL Supreme Court, that a single act of child abuse, which leads to a death, does not qualify as Felony Murder. In other instances of Felony Murder (robbery) this same rule is not in question. One incident of robbery, where a death ensues as a result of the robbery, qualifies for a felony murder charge. I realize that the court has not decided totally on this matter (death resulting from a single act of child abuse), but just the fact that they are in disagreement worries me.

Click to expand...

Actually it does apply to other felonies as well, not just child abuse. Assault and battery is another one, if the assault contains the elements of the murder, then it should be merged. This is not specific to child abuse.


I think it is an ongoing argument in the courts. But this is not about anything except can they have the jury consider felony murder. They have a whole host of other charges to entertain and this may be an absoultely nothing issue so don't worry too much about it.
They can always find her guilty of premeditated murder (or a lesser charge) and aggravated child abuse.
What I have found the question to be, is whether the felony committed includes the elements of the homicide. But as you can see it just will lead to legal arguments on interpretation of the felony murder doctrine and once again will be up to the judge. I personally don't think there is a hard and fast answer to this question except what the lawyers are able to legally argue to the judge and what he decides; the nature of our adversarial system.
or the felony murder will be able to be considered and none of this applies at all.

To me it is just an interesting point of law that is worth looking at.

JBean said:

Here is a good explanation, but keep in mind I am just throwing this out here for discussion and do not know if it applies and/or if it even matters if it does But notice this says it cannot be charged(which in KC's case it has not) does that mean it can't be considered or argued for jury instructions? don't know.

Felony-murder cannot be charged if all the elements of the felony are included in the elements of murder. This is known as the merger doctrine, which holds that if the underlying felony merges with the killing, the felony cannot constitute felony-murder. For example, all of the elements of ASSAULT AND BATTERY with a deadly weapon are included in murder. If a killing, therefore, occurred during the course of this crime, the accused would be charged with murder.​

Read more: Felony-Murder Rule http://law.jrank.org/pages/6835/Felony-Murder-Rule.html#ixzz0bC60fKSf​

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Thanks JBean, I think I'm starting to get it...