We reverse. To illustrate precisely why Downs wants to examine Johnson's polygraph tests, it is necessary that we briefly recount the facts surrounding Downs' conviction as set forth in the affirmance of his appeal. See Downs v. State, 386 So.2d 788 (Fla. 1980). In April of 1977, John Barfield approached Downs with an offer of $5,000 to kill Forrest Jerry Harris, a Jacksonville businessman. Downs accepted the offer, and enlisted the help of Larry Johnson. On April 23, 1977, at Downs' urging, Johnson telephoned Harris and identified himself as Joseph Green. Harris was expecting a call from Green, and Johnson told Harris that he wanted to talk to him about importing contraband.
The trial court also imposed a 30–year sentence on the conspiracy charge.On direct appeal, the Florida Supreme Court affirmed Downs's convictions and sentences. Downs v. State, 386 So.2d 788 (Fla.1980). The U.S. Supreme Court denied certiorari.
The case at bar is distinguishable on this issue from cases such as Slater v. State, 316 So.2d 539 (Fla. 1975), where a more culpable co-defendant received a less severe sentence than the appellant, and there was no error in treating the defendant differently than O'Brien. See Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980). We have compared, as did the trial court, the facts in the case sub judice with cases where we have upheld the imposition of the death penalty on similar facts and find the sentence imposed to be consistent with those cases.
Downs, the alleged trigger man, was convicted at trial and sentenced to death. His conviction was affirmed on appeal. Downs v. State, 386 So.2d 788 (Fla. 1980). Barfield also went to trial and was convicted.
Ernest Charles Downs, a prisoner under sentence of death, appeals the circuit court's order summarily denying his fourth motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns a motion for postconviction relief from sentence of death, this Court has jurisdiction under article V, section 3(b)(1), of the Florida Constitution.We previously affirmed Downs' conviction and sentence of death, see Downs v. State, 386 So.2d 788 (Fla.1980), and also rejected his appeal from the denial of postconviction relief, see Downs v. State, 453 So.2d 1102 (Fla.1984). However, because of a change in the law requiring a jury to be able to consider nonstatutory mitigating factors in sentencing, we granted a new sentencing phase. The jury voted eight to four to recommend the death penalty.
(Fla. 1990); Campbell v. State, 571 So.2d 415 (Fla. 1990); Pentecost v. State, 545 So.2d 861 (Fla. 1989); Spivey v. State, 529 So.2d 1088 (Fla. 1988); Diaz v. State, 513 So.2d 1045 (Fla. 1987); Williamson v. State, 511 So.2d 289 (Fla. 1987); Craig v. State, 510 So.2d 857 (Fla. 1987); Brookings v. State, 495 So.2d 135 (Fla. 1986); Marek v. State, 492 So.2d 1055 (Fla. 1986);Garcia v. State, 492 So.2d 360 (Fla. 1986); Woods v. State, 490 So.2d 24 (Fla. 1986); Deaton v. State, 480 So.2d 1279 (Fla. 1985); Hoffman v. State, 474 So.2d 1178 (Fla. 1985); Brown v. State, 473 So.2d 1260 (Fla. 1985); Troedel v. State, 462 So.2d 392 (Fla. 1984); Bassett v. State, 449 So.2d 803 (Fla. 1984); Routly v. State, 440 So.2d 1257 (Fla. 1983);O'Callaghan v. State, 429 So.2d 691 (Fla. 1983); White v. State, 415 So.2d 719 (Fla. 1982); Miller v. State, 415 So.2d 1262 (Fla. 1982);Tafero v. State, 403 So.2d 355 (Fla. 1981); Barfield v. State, 402 So.2d 377 (Fla. 1981); Gafford v. State, 387 So.2d 333 (Fla. 1980);Downs v. State, 386 So.2d 788 (Fla. 1980); Malloy v. State, 382 So.2d 1190 (Fla. 1979); Smith v. State, 365 So.2d 704 (Fla. 1978); Jackson v. State, 366 So.2d 752 (Fla. 1978); Salvatore v. State, 366 So.2d 745 (Fla. 1978); Barclay v. State, 343 So.2d 1266 (Fla. 1977); Witt v. State, 342 So.2d 497 (Fla. 1977); Meeks v. State, 339 So.2d 186 (Fla. 1976); Slater v. State, 316 So.2d 539 (Fla. 1975). This Court has rejected proportionality claims where the defendant was determined to be the more culpable.
This Court affirmed Downs' convictions and sentence. See Downs v. State, 386 So.2d 788 (Fla. 1980), cert. denied, 449 U.S. 976 (1981). These factors are: (1) the murder was committed for pecuniary gain, and (2) previous conviction of violent felony (attempted armed robbery and armed robbery).
This Court affirmed. Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980). The Court then rejected Downs's collateral attack under Florida Rule of Criminal Procedure 3.850, Downs v. State, 453 So.2d 1102 (Fla. 1984), and his first petition for habeas corpus relief. Downs v. Wainwright, 476 So.2d 654 (Fla. 1985).
State v. Jackson (1977), 50 Ohio St.2d 253, 4 O.O. 3d 429, 364 N.E.2d 236, death penalty vacated (1978), 438 U.S. 911; United States v. Smallwood (C.A. 8, 1971), 443 F.2d 535. See, also, Downs v. State (Fla. 1980), 386 So.2d 788; United States v. Wiley (C.A. 7, 1960), 278 F.2d 500; United States v. Daniels (C.A. 6, 1971), 446 F.2d 967. Different treatment of Howell was clearly justified.
This Court rejected numerous claims of error filed by Downs and his counsel on direct appeal. Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980). We later rejected a collateral attack under Rule 3.