Florida Supreme Court

Docket #71678 - Edward D. Kennedy, Petitioner, vs. State of Florida, Respondent. 547 So. 2d 912; June 8, 1989.

Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981 slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution. Fourth warrant.

Edward Dean Kennedy was sentenced to life imprisonment in 1978, for the murder of a motel clerk in Miami. He was confined at Union Correctional Institution in Raiford, barely a quarter of a mile from Florida State Prison in Starke, Where the state's electric chair is housed.

On 11 April 1981, Kennedy escaped with two comapnions, but his friends were quickly recaptured. To steal a change of clothes, Kennedy broke into a trailer home a few dozen miles from the prison. While he was there, the owner, Floyd H. Cone, Jr., returned home with his cousin, Florida Highway Patrol Trooper Robert C. McDermon.

When McDermon saw Kennedy, he fired his weapon; Kennedy returned the fire with a shotgun and a rifle he had found in the trailer. Both McDermon and Cone were killed in the gunfight. Kennedy then fled to a neighboring trailer, taking a woman & her 6 month old baby as hostages for about an hour before he surrendered.

The similarities in our lives bonded us. Kennedy was born just a few blocks from my Boston studio. We were the same age; we even looked alike. At times I couldnít tell where his personality left off & mine began. We shared an interest in art, music & politics. It seems as if our lives had begun together, diverged , then converged again in Florida State Prison. I had gone to college; he had gone to hell. Though our correspondence lasted only a few months, we became close friends.

While on death row Ed had written to several colleges, offering to tell his life story, but none had ever responded. He worried that his mistakes might be his only legacy, and wanted to help others avoid the errors he had made. Perhaps he agreed to be photographed because he felt it might help someone - anyone. He entrusted with me the responsibility of seeing that his story would not be forgotten.

When he was younger, Ed had been an accomplished saxophonist. He had taught himself to play the instrument between his many prison sentences. In our letters we often talked about our shared love of music, especially jazz. He liked Coltrane; I liked Miles Davis.

Though prison had denied him both the instrument he needed to play & the equipment needed to listen, he retained the ability and desired to talk about it.

A few weeks later Ed asked me to return for his electrocution. Going back there was one of the hardest decisions I've ever made. I remember few things from that visit besides setting up the tape recorder. This mental lapse drives me crazy, though I know it's all on tape. Everything happened in slow motion. We talked around frivolous topics but soon the excess gravity pulled us back to reality.

Then the guards unlocked his handcuffs, and in desperation I broke a prison rule - no physical contact - and threw my arms around Ed. "It will be all right," he said, sensing my discomfort. You cannot say good-bye on death row.

The guards pulled us apart. They grabbed his hands and pinned them behind his back. Then they led him to the death chamber. Ed Kennedy died at the age of 48. Until that moment I had been naive enough to hope that my photographs would throw a kind of safety net over the few comdemned individuals I had photographed.

Fotojones.com

SEX: M RACE: B TYPE: N MOTIVE: CE

MO: Killed motel clerk (1978); shot policeman and male civilian after prison break

DISPOSITION: Life term, 1978 (escaped 1981); condemned, 1981; executed July 21, 1992.

967 F.2d 1482

Edward Dean Kennedy, Petitioner-Appellant,
v.
Harry K. Singletary, Secretary, Florida Department of Corrections,
Respondent-Appellee.

Docket number: 92-2706

Federal Circuits, 11th Cir.

July 20, 1992

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, FAY and ANDERSON, Circuit Judges.

PER CURIAM:

The district court denied this successive petition for writ of habeas corpus, denied a stay of execution, and denied the motion for a certificate of probable cause. Kennedy has appealed to this court and now seeks a stay of execution and a certificate of probable cause.

The claim now asserted by Kennedy is that his sentencing jury was tainted by a constitutionally deficient instruction concerning the allegedly heinous aspect of the murders and that the Florida Supreme Court failed to cure that constitutional error by conducting a proper harmless error review.1 Kennedy has failed to persuade us that the Florida Supreme Court improperly interposed a procedural bar. In any event, we conclude that the presentation of this claim constitutes an abuse of the writ. Kennedy did not raise this claim in his appeal to this court from the district court's denial of his first federal habeas petition.2 As to both the procedural bar and the abuse of the writ, we cannot conclude that Kennedy has demonstrated "cause" or "prejudice" or a fundamental miscarriage of justice. Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). We do not believe that this resolution is debatable among jurists of reason. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).

Accordingly, Kennedy's motion for a certificate of probable cause and for a stay of execution is

DENIED.

*****

1 To the extent that Kennedy asserts any other claim, he has failed to persuade us that he is entitled to a stay of execution or a certificate of probable cause

2 See Kennedy v. Singletary, Nos. 89-3845 & 92-2412 (11th Cir. April 30, 1992) (Unpublished Order) ("Kennedy's claim that his sentencing jury was tainted by a deficient instruction concerning the heinous aspect of the murders and the claim that the Florida Supreme Court failed to conduct a harmless error analysis with respect to same were not presented to this court on appeal from Kennedy's first federal habeas petition.")

Edward Dean Kennedy