Petition for Writ of Certiorari — Lance Shockley, Petitioner v. Cindy Griffith, Warden

Supreme Court briefApr 20, 2018

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No. ______

IN THE

Supreme Court of the United States

___________

LANCE SHOCKLEY,

Petitioner,

CINDY GRIFFITH, WARDEN,

POTOSI CORRECTIONAL CENTER,

Respondent.

___________

On Petition for a Writ of Certiorari

To the Supreme Court of Missouri

___________

PETITION FOR A WRIT OF CERTIORARI

___________

Rosemary E. Percival,

Counsel of Record

Office of the Missouri State Public

Defender

920 Main Street, Suite 500

Kansas City, Missouri 64105-2017

Tel: (816) 889-7699

Rosemary.Percival@mspd.mo.gov

CAPITAL CASE

QUESTIONS PRESENTED

When a jury drawn from a fair cross-section of the community cannot conclude

that the defendant deserves the death penalty, may the trial court proceed as if there

had been no jury, make its own independent findings, and impose a death sentence,

without violating the core principles underlying the Sixth Amendment right to trial

by jury, the Eighth Amendment right to proportionate sentencing, or the Fourteenth

Amendment right to due process?

In capital cases, do the Sixth, Eighth, or Fourteenth Amendments require that

any death sentence be imposed by the jury, unanimously?

LIST OF PARTIES

The Petitioner, Lance C. Shockley, appears through Rosemary E. Percival,

Counsel of Record, Office of the State of Missouri Public Defender, 920 Main Street,

Suite 500, Kansas City, Missouri 64105.

The Respondent, Cindy Griffith, Warden of the Potosi Correctional Center,

appears by Patrick Logan, Assistant Attorney General, State of Missouri, P.O. Box

899, Jefferson City, MO 65102.

TABLE OF CONTENTS

Page

Questions Presented ....................................................................................................... i

List of Parties ................................................................................................................. ii

Table of Contents .......................................................................................................... iii

Table of Authorities ...................................................................................................... vi

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional and Statutory Provisions Involved ....................................................... 1

Statement of the Case ................................................................................................... 3

Reasons for Granting the Writ ...................................................................................... 6

State Courts are Divided over Whether, Following Hurst, a Trial Court May

Replace the Jury’s Findings with its Own Independent Findings and then

Impose a Death Sentence .............................................................................. 7

A. The Hurst Opinion.................................................................................... 7

B. The Conflict ............................................................................................. 8

1. The minority view: as long as a jury made factual findings, the

court may replace them with its own factual findings and impose a

death sentence .................................................................................. 8

2. The majority view: a unanimous jury must make all the factual

findings, including the final decision of whether to impose a death

sentence .......................................................................................... 10

iii

a. The Supreme Court of Florida ............................................... 11

b. The Supreme Court of Delaware............................................ 12

c. State and Federal Legislation ................................................ 14

II.

This Case Involves the Immediate and Ongoing Violation of Core Principles

Underlying the Sixth, Eighth, and Fourteenth Amendments ................... 17

III.

This Case Presents an Ideal Vehicle for Resolution of these Issues ......... 23

IV.

Missouri’s Sentencing Procedure Violates the Constitution as Held by

Hurst and Conflicts with the Holdings of the Florida and Delaware

Supreme Courts ........................................................................................... 25

The Jurors’ Interrogatories Do Not Render the Constitutional Violations

Harmless ...................................................................................................... 26

A. The jurors’ response to the second interrogatory did not reveal what the

jurors actually found at the weighing step, so we cannot conclude that

the trial court made the same finding ................................................... 27

B. The record does not show that the trial judge made the same findings on

statutory and non-statutory aggravating circumstances as the

jurors ....................................................................................................... 27

Conclusion .................................................................................................................... 30

Appendices

Appendix A: Denial of Petition for Writ of Habeas Corpus,

Missouri Supreme Court (2017) ................................................ 1a

Appendix B: Denial of Motion to Recall Mandate,

Missouri Supreme Court (2017) ................................................ 3a

Appendix C: Opinion of the Missouri Supreme Court (2013) ........................ 4a

Appendix D: Chart of State and Federal Statutes Regarding Penalty

Phase Deadlock ........................................................................ 47a

TABLE OF AUTHORITIES

CASES:

Alleyne v. United States, 570 U.S. 99 (2013) ....................................................... 7-8, 22

Apprendi v. New Jersey, 530 U.S. 466 (2000) ....................................................... 22, 28

Atkins v. Virginia, 536 U.S. 304 (2002) ...................................................................... 16

Baldwin v. New York, 399 U.S. 66 (1970) ................................................................... 18

Ballew v. Georgia, 435 U.S. 223 (1978) ....................................................................... 20

Beck v. Alabama, 447 U.S. 625 (1980) ........................................................................ 21

Burch v. Louisiana, 441 U.S. 130 (1979) .................................................................... 18

Duncan v. Louisiana, 391 U.S. 145 (1968) ...................................................... 17-18, 21

Eddings v. Oklahoma, 455 U.S. 104 (1982) ........................................................... 29-30

Ex Parte Bohannon, 222 So.3d 525 (Ala. 2016) .......................................................... 13

Gardner v. Florida, 430 U.S. 349 (1977)..................................................................... 16

Gregg v. Georgia, 428 U.S. 153 (1976) ........................................................................ 19

Harris v. Alabama, 513 U.S. 504 (1995) ..................................................................... 21

Herring v. New York, 422 U.S. 853 (1975) .................................................................. 20

Hobby v. United States, 468 U.S. 339 (1984) .............................................................. 20

Hurst v. Florida, 136 S.Ct. 616 (2016) .................................................................passim

Hurst v. State, 202 So.3d 40 (Fla. 2016) ............................................................ 3, 11-12

Jones v. United States, 527 U.S. 373 (1999) ............................................................... 20

Lockett v. Ohio, 438 U.S. 586 (1978) ..................................................................... 20, 30

Mathis v. United States, 136 S.Ct. 2243 (2016) .......................................................... 22

Mills v. Maryland, 486 U.S. 367 (1988) ................................................................. 26-27

Monge v. California, 524 U.S. 721 (1998) ................................................................... 20

Penry v. Lynaugh, 492 U.S. 302, 331 (1989) ............................................................... 16

Rauf v. State, 145 A.3d 430 (Del. 2016) ................................................. 3, 12-14, 16, 30

Ring v. Arizona, 536 U.S. 584 (2002) ................................................................ 8, 19, 22

Spaziano v. Florida, 468 U.S. 447 (1984) ............................................................. 19, 22

State v. Deck, 303 S.W.3d 527 (Mo. banc 2010) ............................................................ 9

State v. Griffin, 756 S.W.2d 475 (Mo. banc 1988)................................................... 9, 24

State v. Johnson, 284 S.W.3d 561 (Mo. banc 2009) ............................................... 28-29

State v. McLaughlin, 265 S.W.3d 257 (Mo. banc 2008) ............................. 10, 24-25, 28

State v. Shockley, 410 S.W.3d 179 (Mo. banc 2013) ............................. 1, 5, 9-10, 24-25

State v. Smith, 944 S.W.2d 901 (Mo. banc 1997) .......................................................... 9

State v. Steele, 921 So. 2d 538 (Fla. 2005) .................................................................... 7

State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003)..................................... 9-10, 23-25

Sullivan v. Louisiana, 508 U.S. 275 (1993) ................................................................ 17

Taylor v. Louisiana, 419 U.S. 522 (1975) ................................................................... 19

Thompson v. Oklahoma, 487 U.S. 815 (1988)............................................................. 19

Trop v. Dulles, 356 U.S. 86 (1958)............................................................................... 19

Washington v. Recuenco, 548 U.S. 212 (2006) ............................................................ 28

Williams v. Florida, 399 U.S. 78 (1970) ...................................................................... 29

Witherspoon v. Illinois, 391 U.S. 510 (1968)............................................................... 29

Woodson v. North Carolina, 428 U.S. 280 (1976) ................................................. 16, 30

vii

Woodward v. Alabama, 134 S.Ct. 405 (2013) ............................................................. 21

U.S. CONSTITUTIONAL PROVISIONS:

U.S. Const., Art. III, Section 2 .................................................................................... 18

U.S. Const., amend. VI .........................................................................................passim

U.S. Const., amend. VIII ......................................................... 1-2, 5-6, 11-12, 16-19, 31

U.S. Const., amend. XIV ............................................................... 1-2, 5-7, 17-18, 20, 31

STATUTES:

11 Del.C. §4209 ............................................................................................................ 12

18 U.S.C. § 3594 (2014) ............................................................................................... 16

28 U.S.C. § 1257(a) ........................................................................................................ 1

Ala. Acts 2017, § 2, Act No. 2017–131 ........................................................................ 15

Ala. Code 1975 § 13A-5-46(f) ....................................................................................... 15

Ind. Code Ann. § 35-50-2-9(f) ...................................................................................... 15

Mo. Rev. St. § 565.030 (2000) ........................................................ 2, 4-5, 8-9, 15, 23, 28

Mont. Code Ann. § 46-18-301 ...................................................................................... 15

Neb. Rev. St. § 29-2520 - § 29-2522............................................................................. 15

MISCELLANEOUS:

Blackstone, Commentaries on the Laws of England (1769) ...................................... 11

viii

Bliss, Mark, Convicted murderer Mark Gill receives life sentence in retrial of penalty

phase, Southeastern Missourian, May 23, 2017 ................................................. 17

Carroll, Jenny E., Nullification as Law, 102 Geo. L.J. 579 (2014) ............................ 18

Death Penalty Information Center, Jurisdictions with No Recent Executions ........ 15

Death Penalty Information Center, Montana Information Page .............................. 15

Lingo, Collin, Judge Sentences Craig Wood to Death, Ozarks First.com, Jan. 11,

2018 ...................................................................................................................... 17

Missouri Approved Instruction MAI-CR3d 314.58 ..................................................... 26

Patrick, Robert, Judge in St. Charles County sentences former Dent County deputy

to death for murder, St. Louis Post-Dispatch, Oct. 6, 2017 ............................... 17

Unidentified author, County, circuit judicial races see new faces, Howell County

News, May 14, 2018 ............................................................................................. 21

PETITION FOR WRIT OF CERTIORARI

Lance C. Shockley, the Petitioner, respectfully petitions for a writ of certiorari

to the Missouri Supreme Court.

OPINIONS BELOW

The Missouri Supreme Court’s November 21, 2017 ruling denying petitioner’s

Petition for a Writ of Habeas Corpus is attached as Appendix A (Mo. Sup. Ct. #96694).

The Missouri Supreme Court’s April 4, 2017 ruling denying petitioner’s Motion to

Recall the Mandate is attached as Appendix B (Mo. Sup. Ct. #90286). The Missouri

Supreme Court’s August 13, 2013 opinion affirming petitioner’s conviction and death

sentence is available at 410 S.W.3d 179 (Mo. banc 2013) and is attached as Appendix

JURISDICTION

The Missouri Supreme Court entered its order denying petitioner’s petition for

Writ of Habeas Corpus on November 21, 2017.

On February 14, 2018, Justice

Gorsuch extended the time within which to file a petition for a writ of certiorari to

and including April 20, 2018. The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves a state criminal defendant’s constitutional rights under the

Sixth, Eighth, and Fourteenth Amendments. The Sixth Amendment provides in

relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district wherein the

crime shall have been committed…”

The Eighth Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.”

The Fourteenth Amendment provides in relevant part: “No state shall make

or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.”

This case also involves Missouri’s death penalty sentencing statute, Mo. Rev.

St. § 565.030.4 (2000):

The trier shall assess and declare the punishment at life imprisonment

without eligibility for probation, parole, or release except by act of the

governor:

… (2) If the trier does not find beyond a reasonable doubt at

least one of the statutory aggravating circumstances set out in

subsection 2 of section 565.032; or

(3) If the trier concludes that there is evidence in mitigation of

punishment, including but not limited to evidence supporting the

statutory mitigating circumstances listed in subsection 3 of section

565.032, which is sufficient to outweigh the evidence in aggravation of

punishment found by the trier; or

(4) If the trier decides under all of the circumstances not to

assess and declare the punishment at death. If the trier is a jury it shall

be so instructed.

If the trier assesses and declares the punishment at death it shall,

in its findings or verdict, set out in writing the aggravating circumstance

or circumstances listed in subsection 2 of section 565.032 which it found

beyond a reasonable doubt. If the trier is a jury it shall be instructed

before the case is submitted that if it is unable to decide or agree upon

the punishment the court shall assess and declare the punishment at

life imprisonment without eligibility for probation, parole, or release

except by act of the governor or death. The court shall follow the same

procedure as set out in this section whenever it is required to determine

punishment for murder in the first degree.

STATEMENT OF THE CASE

This case presents an important question, over which state courts are

resolutely divided, regarding the right to trial by jury in a capital sentencing

proceeding.

Following Hurst v. Florida, 136 S.Ct. 616 (2016), both Florida and

Delaware recognized that, under the Sixth Amendment right to trial by jury, every

fact necessary for imposition of the death penalty, including the ultimate decision to

impose a death sentence, must be found by a jury, unanimously. Hurst v. State, 202

So.3d 40, 53-54 (Fla. 2016); Rauf v. State, 145 A.3d 430, 435-36, 483 (Del. 2016).

Along these same lines, the vast majority of states, as well as the federal government,

have passed legislation mandating that any death sentence be imposed by a

unanimous jury. In contrast, when a Missouri jury cannot decide whether to impose

a death sentence, the trial court takes over, makes its own independent findings, and

decides whether to impose a death sentence. Missouri’s procedure not only conflicts

with other states’ procedures, but is contrary to Hurst because it violates the Sixth

Amendment.

In March 2005, Missouri Highway Patrol Sgt. Dewayne Graham was

found dead in his driveway (Tr. 1208-09). He had been shot twice (Tr. 1250-52, 126768).

Although there were no witnesses to the shooting, certain circumstantial

evidence suggested that petitioner may have been involved (Tr. 1051-52, 1160, 140405, 1807-10, 1865-66, 1892).

Petitioner was charged with first-degree murder (L.F. 145-46). The

State gave notice that it would seek the death penalty if petitioner was convicted as

charged (L.F. 165-66). Petitioner pursued his right to trial by jury and was found

guilty (L.F. 1704; Tr. 2058-60).

At the penalty phase, the jurors returned a “verdict” stating they could not

agree upon the punishment to be imposed (L.F. 1723).

The jurors listed three

statutory aggravating circumstances they found beyond a reasonable doubt (L.F.

1723).

They indicated they did not “unanimously find there are facts and

circumstances in mitigation of punishment sufficient to outweigh facts and

circumstances in aggravation of punishment” (L.F. 1723). However, the jury did not

render a verdict of a death sentence.

Under Missouri statute, the court was required to “follow the same procedure

as set out in this section whenever it is required to determine punishment for murder

in the first degree.” Mo. Rev. St. § 565.030.4. Thus, the trial court repeated the steps

the jurors had taken, reconsidered the facts, and made its own independent findings

(L.F. 1774-75; Tr. 2236).

The court recognized that the jurors agreed on three

aggravating circumstances, “which the Court has noted and certifies” (Tr. 2236). The

court agreed with the jury that the facts and circumstances in mitigation of

punishment did not outweigh the facts and circumstances in aggravation (Tr. 2236).

The court then imposed a sentence of death (Tr. 2236).

On appeal, petitioner alleged that Mo. Rev. St. § 565.030.4 was

unconstitutional because it allowed the judge to weigh the aggravating and

mitigating circumstances and determine the sentence when the jurors cannot agree

on the sentence. State v. Shockley, 410 S.W.3d 179, 198 (Mo. banc 2013). Rejecting

this claim, the Missouri Supreme Court held that the jurors’ responses to the

interrogatories “showed that the jury deadlocked only on the issue of whether to

assess a penalty of death or of life imprisonment.” Id. at 198-99. The Missouri

Supreme Court concluded that, because the jurors made the required findings, the

judge could independently find a statutory aggravating circumstance, weigh the

aggravating and mitigating evidence, and impose a death sentence. Id. The Missouri

Supreme Court noted that the statute merely “provide[d] an extra layer of findings

that must occur before the court may impose a death sentence.”

Id. at 198-99

(emphasis added).

After this Court issued Hurst v. Florida, 136 S.Ct. 616 (2016), petitioner

filed a motion to recall the mandate in the Missouri Supreme Court on December 9,

2016. Petitioner alleged that Missouri’s deadlock procedure mirrored the procedure

found unconstitutional in Hurst, in that the court imposed a death sentence based on

its own independent findings (Recall Mandate, p. 1-2, 27-29, 35, 49-50). Petitioner

also alleged that to comply with the Sixth, Eighth, and Fourteenth Amendments, any

decision to impose a death sentence must be made by a jury, unanimously (Recall

Mandate, p. 3, 15, 36, 41-42, 44, 46-50). The Missouri Supreme Court denied the

motion to recall the mandate on April 4, 2017, but noted its ruling was without

prejudice to filing a petition for writ of habeas corpus (Appendix B).

Petitioner filed a petition for writ of habeas corpus in the Missouri Supreme

Court on September 26, 2017. It alleged the same grounds as the motion to recall the

mandate (Habeas Pet, p. 14, 37-38, 41-46, 73, 85, 92). The Missouri Supreme Court

denied the petition without opinion on November 21, 2017 (Appendix A).

The petition for writ of certiorari is due April 20, 2018.

REASONS FOR GRANTING THE WRIT

Following Hurst v. Florida, 136 S.Ct. 616 (2016), state courts have come to

conflicting conclusions on whether a trial court in a capital penalty phase may replace

the jury’s factual findings with its own independent “extra layer of findings” and

impose a death sentence without violating the Sixth, Eighth, or Fourteenth

Amendments. The Supreme Courts of Florida and Delaware hold that, in light of

Hurst, all factual findings necessary to the imposition of a death sentence, including

the decision of whether to impose the death sentence itself, must be made by a

unanimous jury. Missouri, on the other hand, has held that as long as the jury

initially made the required factual findings, the trial court may make its own

independent findings and then impose a death sentence. The Court should use this

case to resolve the conflict, as the conflict is fully developed and ripe for review, and

the issue will continue to recur unless this Court intervenes. This Court should also

grant the petition for writ of certiorari, because Petitioner, as others similarly

situated in Missouri, are inherently prejudiced by being sentenced to death in a state

in an unconstitutional fashion.

State Courts are Divided over Whether, Following Hurst, a Trial

Court May Replace the Jury’s Findings with its Own Independent

Findings and then Impose a Death Sentence

A. The Hurst Opinion

In Hurst v. Florida, 136 S.Ct. 616, 619 (2016), the Court struck down Florida’s

capital sentencing procedure because it delegated to the judge, not the jury, the

responsibility of finding each fact necessary for imposition of the death penalty.

Florida had a “hybrid” procedure by which the jury (1) determined if the State had

proven an aggravating circumstance; (2) weighed the aggravating and mitigating

circumstances; and (3) recommended whether the defendant should be sentenced to

death. Id. at 620; 625 (Alito, J., dissenting); see also State v. Steele, 921 So. 2d 538,

545 (Fla. 2005).

But upon receiving the jury’s recommendation, the trial court

duplicated the steps taken by the jury. Id. at 625 (Alito, J., dissenting). It made its

own independent finding of whether the State had proven the aggravating

circumstances; it weighed the aggravating and mitigating circumstances; and it

decided whether the defendant would live or die. Id. at 620; see also 625 (Alito, J.,

dissenting).

In striking down Florida’s statute, this Court reiterated that the Sixth

Amendment right to trial by jury, together with the Fourteenth Amendment’s Due

Process Clause, required that “each element of a crime be proved to a jury beyond a

reasonable doubt.” Hurst, 136 S.Ct. at 621 (citing Alleyne v. United States, 570 U.S.

99, 104 (2013)). A jury must find the facts “necessary to sentence a defendant to

death.” Hurst, 136 S.Ct. at 621 (citing Ring v. Arizona, 536 U.S. 584, 591 (2002)).

The Court concluded that Florida courts had erred in not requiring the jury to

find the “critical findings necessary to impose the death penalty.” Hurst, 136 S.Ct. at

622.

Instead, the judge played a “central and singular role.”

Id.

Florida

impermissibly required the trial court alone to find the facts “‘[t]hat sufficient

aggravating circumstances exist’ and ‘[t]hat there are insufficient mitigating

circumstances to outweigh the aggravating circumstances.’” Hurst, 136 S.Ct. at 622.

The jury did not make specific factual findings “with regard to the existence of

mitigating or aggravating circumstances and its recommendation is not binding on

the trial judge.” Id. at 622. Without jury-made findings, the only sentence Hurst

could have received was life without parole.

Id.

This Court held that Florida

impermissibly increased the authorized punishment by its own findings and thereby

violated the Sixth Amendment. Id. Moreover, the Court rejected Florida’s argument

that the judge’s finding of an aggravator “only provides the defendant additional

protection.” Id.

B. The Conflict

1. The minority view: as long as a jury made factual findings, the court may

replace them with its own factual findings and impose a death sentence

In Missouri, before jurors may consider imposing a death sentence, they must

find that the State has proven at least one statutory aggravating circumstance

beyond a reasonable doubt, and they must find that they do not agree that the

evidence in mitigation outweighs the evidence in aggravation.

Mo. Rev. St. §

565.030.4(2), (3); Shockley, 410 S.W.3d at 198. Only after the jurors make these two

required findings may they decide whether to recommend a death sentence. Mo. Rev.

St. § 565.030.4(4); Shockley, 410 S.W.3d at 198.

Missouri requires that the court “follow the same procedure as set out in this

section whenever it is required to determine punishment for murder in the first

degree.” Mo. Rev. St. § 565.030.4. Thus, when the jury cannot decide whether to

impose a death sentence, the court follows the same procedure as if the defendant

had waived a jury trial altogether. Once the jury deadlocks, “the jury’s findings

simply disappear from the case and the court is to make its own independent

findings.” State v. Whitfield, 107 S.W.3d 253, 271 (Mo. banc 2003). Any resulting

judgment of death is “based on the court’s findings.” Id. (emphasis added); see also

State v. Deck, 303 S.W.3d 527, 534 (Mo. banc 2010) (“the judge, not the jury, made

the factual findings and sentenced Whitfield to death”). Upon deadlock, “the court

must determine punishment independently and without reliance on the results of any

deliberations of the jury.” State v. Griffin, 756 S.W.2d 475, 488 (Mo. banc 1988). The

judge must “independently go through” the statutory steps “and make his or her own

determination whether the death penalty or life imprisonment should be imposed.”

Whitfield, 107 S.W.3d at 261; see also State v. Smith, 944 S.W.2d 901, 920 (Mo. banc

1997) (trial court independently considers each aggravating circumstance). Even

though the jury had made findings, “the judge must go through each of the … steps

and independently make his or her own factual determination as to each step….”

Whitfield, 107 S.W.3d at 263. The court may reconsider the facts in making its own

determinations. State v. McLaughlin, 265 S.W.3d 257, 264 (Mo. banc 2008).

In State v. Shockley, 410 S.W.3d 179, 198 (Mo. banc 2013), petitioner contended

that his death sentence was unconstitutional because it was the product of judicial

rather that juror fact-finding. Rejecting this claim, the Missouri Supreme Court held

that the jurors’ responses to the interrogatories “showed that the jury deadlocked

only on the issue of whether to assess a penalty of death or of life imprisonment.” Id.

at 198-99.

Because the jurors made the required findings, the judge could

independently find a statutory aggravating circumstance, weigh the aggravating and

mitigating evidence, and impose a death sentence. Id. The Missouri Supreme Court

concluded that Missouri’s statute merely “provides an extra layer of findings that

must occur before the court may impose a death sentence.” Id.

2. The majority view: a unanimous jury must make all the factual findings,

including the final decision of whether to impose a death sentence

Following Hurst, both the Supreme Court of Florida and the Supreme Court of

Delaware held that the Sixth Amendment required that all factual findings, including

the final determination of whether the defendant deserves the death penalty, must

be made by a jury, unanimously. In addition, whether or not based on federal

constitutional grounds, the vast majority of death penalty states as well as the federal

government have enacted legislation mandating that any death sentence be imposed

by a jury, unanimously.

a. The Supreme Court of Florida, Hurst v. State

Relying on Hurst, the Florida Supreme Court held that to satisfy the Sixth

Amendment, the jurors, not the judge, must find “each fact necessary to impose a

sentence of death.” Hurst v. State, 202 So.3d at 51 (quoting Hurst, 136 S.Ct. at 619).

These critical findings were elements, “the sole province of the jury,” and had to be

found unanimously. Hurst v. State, 202 So.3d at 44, 50-51, 57. Thus, a jury must

find unanimously (1) that aggravating circumstances exist; (2) that the aggravating

circumstances are sufficient; and (3) that the evidence in aggravation outweighs the

evidence in mitigation. Id. at 53-54, 57.

Moreover, the Florida Supreme Court concluded that the ultimate decision of

whether the defendant should live or die had to be made by the jury, unanimously.

Id. at 54-55. The Sixth Amendment right to trial by jury “required Florida to base

[the defendant’s] death sentence on a jury’s verdict, not a judge’s factfinding.” Id. at

53 (quoting Hurst, 136 S.Ct. at 624). “This recommendation is tantamount to the

jury’s verdict in the sentencing phase of trial; and historically, and under explicit

Florida law, jury verdicts are required to be unanimous.” Id. at 54. In reaching this

conclusion, the court relied on Blackstone’s writings on the centuries-old right to a

unanimous jury in English jurisprudence, the Florida constitution’s guarantee of trial

by jury, and the common law principle that jury verdicts be unanimous. Id. at 54-55.

The Florida Supreme Court stressed that jury unanimity not only enhances

the Sixth Amendment right to trial by jury, especially in capital cases, but was

required by the Eighth Amendment. Hurst v. State, 202 So.3d at 59-60. Death

sentences must be reserved for the worst of the worst, must not be arbitrarily

imposed, and must meet the highest standards of reliability. Id. at 60.

If death is to be imposed, unanimous jury sentencing recommendations,

when made in conjunction with the other critical findings unanimously

found by the jury, provide the highest degree of reliability in meeting these

constitutional requirements in the capital sentencing process.

Id. Unanimity “furthers the deliberative process by requiring that the minority view

be thoroughly examined and then rejected or accepted by the entire jury.” Id. at 58.

Like the “beyond a reasonable doubt” standard, a unanimity requirement impresses

on the jury the need to reach “a subjective state of certitude on the facts in issue.” Id.

At the “life or death” step, jury unanimity ensures that the range of murders subject

to the death penalty are truly narrowed as the Eighth Amendment demands and that

the verdict expresses the conscience of the community. Id. at 60. Furthermore,

because Florida was an extreme outlier in not requiring a unanimous jury decision

for death, any imposition of the death penalty in Florida was cruel and unusual. Id.

at 61; also 70 (Pariente, J., concurring).

b. The Supreme Court of Delaware, Rauf v. Delaware

Delaware also recognized the need for drastic change following this Court’s

seminal holding in Hurst. Under its now-defunct statute, the jury decided whether

(1) a statutory aggravating circumstance existed and (2) the evidence in aggravation

outweighed the evidence in mitigation. 11 Del.C. §4209(c)(3)(a). The court would

consider the jury’s recommendation but make its own findings. 11 Del.C. §4209(d).

In Rauf v. Delaware, 145 A.3d 430, 433 (Del. 2016) (per curiam), the Delaware

Supreme Court struck down its death penalty procedure as violating “the Sixth

Amendment role of the jury as set forth in Hurst.” The Delaware court stressed that

Hurst held that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact

necessary to impose a sentence of death.” Id. (quoting Hurst, 136 S.Ct. at 619). Thus,

the jury must find, unanimously and beyond a reasonable doubt, that the aggravating

circumstances outweigh the mitigating circumstances. Rauf, 145 A.3d at 434. In

addition, both the statutory and non-statutory aggravating circumstances must be

found by a jury unanimously and beyond a reasonable doubt. Id. at 433-34.

In a concurring opinion, Justice Holland, joined by two other justices,1

explained Hurst’s broader ruling:

Although the United States Supreme Court’s holding in Hurst only

specifically invalidated a judicial determination of aggravating

circumstances, it also stated unequivocally that the jury trial right

recognized in Ring now applies to all factual findings necessary to impose a

death sentence under a state statute. The logical extension of that broader

statement in Hurst is that a jury must determine the relative weight of

aggravating and mitigating circumstances.

Id. at 487 (Holland, J., concurring, joined by Strine and Seitz) (citing Hurst, 136 S.Ct.

at 622); see also id. at 436, 460-61; but see Ex Parte Bohannon, 222 So.3d 525, 532

(Ala. 2016) (holding that Hurst only requires a jury finding as to aggravating

circumstances).

In another concurring opinion, these justices concluded that, under Hurst, the

right to trial by jury in a capital trial was not limited to those findings that made the

defendant eligible for the death penalty; it also encompassed the determinations “that

1 The Delaware Supreme Court is made up of five justices.

Id. at 432.

must be made if the defendant is in fact to receive a death sentence.” Rauf, 145 A.3d

at 435-36, 460 (Strine, J., concurring, joined by Holland and Seitz, JJ.). The Sixth

Amendment did not distinguish between “the decision that someone is eligible for

death and the decision that he should in fact die.” Id. Instead, the right to trial by

jury extended to all phases of a death penalty case, especially the final decision, which

was one “of existential fact.” Id. at 437, 473.

The opinions of the Supreme Court of Florida and the Supreme Court of

Delaware are intractably in conflict with the Missouri Supreme Court’s stance. On

one side of the conflict, the Supreme Courts of Florida and Delaware hold that the

Sixth Amendment requires that every decision necessary for imposition of the death

penalty, including the actual decision imposing death, be made by a unanimous jury.

The Supreme Court of Missouri, on the other side, holds that as long as the jury made

the initial required findings, the trial court can start from scratch, reconsider the

facts, make its own independent findings, and impose a death sentence based on those

findings.

c. State and Federal Legislation

The vast majority of the thirty-one states with the death penalty, as well as

the federal government, have enacted legislation mandating that any death sentence

be imposed by a jury, unanimously.2 All but four states – Montana, Nebraska,

Indiana and Missouri – require that any decision to impose a death sentence be made

2 See Chart of State and Federal Statutes Regarding Penalty Phase Deadlock

(Appendix D).

by a jury. See Mont. Code Ann. § 46-18-301; Neb. Rev. St. § 29-2520 - § 29-2522; Ind.

Code Ann. § 35-50-2-9(f); and Mo. Rev. St. § 565.030.4. All but five states – the above

four plus Alabama – require the jury to make that decision unanimously. See § 2,

Act No. 2017–131, Ala. Acts 2017; Ala. Code 1975 § 13A-5-46(f).

Like Missouri, Indiana normally requires a unanimous jury decision to impose

a death sentence, but if the jurors cannot agree, the trial court takes over and decides.

Ind. Code Ann. § 35-50-2-9(f). In Montana and Nebraska, a judge or a panel of judges

makes the ultimate decision. Mont. Code Ann. §46-18-301; Neb. Rev. St. §§29-2520,

29-2521. But Montana essentially has placed a moratorium on the death penalty

since no death sentence has been imposed there since 1997.3 And in Nebraska, if the

three-judge panel does not unanimously vote for death, the defendant must be

sentenced to life imprisonment. Neb. Rev. St. §§29-2522. Alabama does not require

a unanimous verdict, but if not enough jurors vote for the death penalty, a new

penalty trial must be held.4 § 2, Act No. 2017–131, Ala. Acts 2017; Ala. Code 1975

§13A-5-46(f).

3 Since 1976, Montana has only imposed the death penalty eight times; the last

time was in 1997. It has executed only three people since 1976; the last time was

over ten years ago, in August 2006. See Death Penalty Information Center website:

http://www.deathpenaltyinfo.org/montana-1#sent (last viewed April 19, 2018) and

http://www.deathpenaltyinfo.org/news/past/76/2011 (last viewed April 19, 2018).

4 In Alabama, if seven jurors vote for life without parole, the sentence must be

life without parole. If ten jurors vote for death, the sentence must be death. Thus, if

six, seven, eight, or nine jurors vote for death, there would not be enough votes for

either life without parole or the death penalty, so the jury would be deadlocked. Ala.

Code 1975 §13A-5-46(f).

Thus, in the vast majority of death penalty states, when a capital jury cannot

agree on the sentence to be imposed, the resulting sentence must be life imprisonment

without parole (or a lesser sentence), or at the very least, the defendant must receive

a new sentencing trial. The federal government also requires that the defendant be

sentenced to life without parole or less in the event of jury deadlock at a capital

sentencing phase. 18 U.S.C. § 3594 (2014).

Courts have an obligation “to re-examine capital-sentencing procedures

against evolving standards of procedural fairness in a civilized society.” Gardner v.

Florida, 430 U.S. 349, 357 (1977); Woodson v. North Carolina, 428 U.S. 280, 288

(1976); see also Atkins v. Virginia, 536 U.S. 304, 311-12 (2002). These standards are

most clearly and reliably seen through the legislation of the various states. Id. at 312

(quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989)) (overturned on other ground).

Missouri is an extreme outlier.

It has failed to keep pace with evolving

standards of decency as expressed through the legislation of the death penalty states.

Missouri must conform its procedures to the current standards of decency which

demand that no defendant proceed to his death at the hands of the State except by

the unanimous decision of a jury. Judicial determination of sentence in a capital case

is now so unusual as to violate the Eighth Amendment. As the Delaware Supreme

Court held, “the practice of executing a defendant without the prior unanimous vote

of a jury is so out of keeping with our history as to render the resulting punishment

cruel and unusual.” Rauf, supra, 145 A.3d at 437, 465.

II. This Case Involves the Immediate and Ongoing Violation of Core

Principles Underlying the Sixth, Eighth, and Fourteenth

Amendments

Missouri’s violation of petitioner’s fundamental constitutional right to trial by

jury is not an isolated incident. In 2017, three capital cases went to trial in Missouri.

In one, the jury imposed a sentence of life without parole.5 But in the second and

third cases, neither jury could agree on the sentence to be imposed.6 In both cases,

the trial court then took over, made its own factual findings, and imposed a death

sentence.7 The only way Missouri could obtain a death sentence for cases tried in

2017 was by judicial fiat. Unless this Court intervenes, Missouri will continue to

sentence defendants to death under this unconstitutional deadlock procedure, and

thereby, without the benefit of a jury finding or verdict that death was appropriate.

Allowing the court to replace the jury in a capital sentencing trial contravenes

the core principles underlying the right to trial by jury, a right deemed “fundamental

to the American scheme of justice.” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993)

(quoting Duncan v. Louisiana, 391 U.S. 145, 149 (1968)). Denial of the right to trial

5 Mark Bliss, Convicted murderer Mark Gill receives life sentence in retrial of

penalty phase, Southeastern Missourian, May 23, 2017; available at

https://www.semissourian.com/story/2414258.html (last accessed April 17, 2018).

6 Robert Patrick, Judge in St. Charles County sentences former Dent County

deputy to death for murder, St. Louis Post-Dispatch, Oct. 6, 2017; available at

http://www.stltoday.com/news/local/crime-and-courts/judge-in-st-charles-countysentences-former-dent-county-deputy/article_2c1dbb19-0bc6-5022-8dc72d6540e61951.html (last accessed April 17, 2018); Collin Lingo, Judge Sentences

Craig Wood to Death, Ozarks First.com, Jan. 11, 2018; available at

http://www.ozarksfirst.com/news/judge-sentences-craig-wood-to-death/911152416

(last accessed April 17, 2018).

7 Id.

by jury in turn threatens a capital defendant’s right to be free from cruel and unusual

punishment under the Eighth Amendment and due process under the Fourteenth.

To the writers of the Constitution and Bill of Rights, the right to trial by jury

was of paramount importance. Although the founders disagreed on many things,

they were united in support of the right to trial by jury in criminal cases.

Alexander Hamilton noted, any disagreement centered on whether the jury trial right

was “a valuable safeguard to liberty” or instead, “the very palladium of free

government.”8 Trial by jury in criminal cases was so important that the founders

explicitly guaranteed the right in both Article III, Section 2, of the Constitution and

the Sixth Amendment.

The founders insisted upon trial by jury so the jury would serve as a buffer

between the criminal defendant and the State and thus be an essential protection

against governmental oppression. Baldwin v. New York, 399 U.S. 66, 72 (1970). Its

inclusion in the federal constitution and all state constitutions “reflect[s] a

fundamental decision about the exercise of official power – a reluctance to entrust

plenary powers over the life and liberty of the citizen to one judge or to a group of

judges.” Duncan, 391 U.S. at 156. Trial by jury serves as a “safeguard against the

corrupt or overzealous prosecutor and against the compliant, biased, or eccentric

judge.” Burch v. Louisiana, 441 U.S. 130, 134 (1979).

Moreover, trial by jury gives voice to “the commonsense judgment of the

community” and allows “community participation and shared responsibility” in the

Jenny E. Carroll, Nullification as Law, 102 Geo. L.J. 579, 590 (2014).

administration of justice. Williams v. Florida, 399 U.S. 78, 100 (1970); Taylor v.

Louisiana, 419 U.S. 522, 530-31 (1975). Broad community participation is “critical to

public confidence in the fairness of the criminal justice system.” Taylor, 419 U.S. at

531-32. It allows different perspectives to be considered and ensures a “diffused

impartiality.” Id.

Trial by jury ensures that a death sentence reflects contemporary standards of

morality and the conscience of the community. Thompson v. Oklahoma, 487 U.S. 815,

822-23, 832 (1988). Jurors provide “a link between contemporary community values

and the penal system,” and thus ensure that death penalty decisions comply with the

Eighth Amendment by reflecting “the evolving standards of decency that mark the

progress of a maturing society.” Witherspoon v. Illinois, 391 U.S. 510, 519, n.15

(1968); Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). When a judge

rather than the jury assesses punishment in a capital case, the resulting decision

does not reflect the moral conscience of the community.

[Jurors] are more likely [than a trial judge] to express the conscience of the

community on the ultimate question of life or death, and better able to

determine in the particular case the need for retribution, namely, an

expression of the community’s belief that certain crimes are themselves so

grievous an affront to humanity that the only adequate response may be

the penalty of death.

Ring, 536 U.S. at 615-16 (Breyer, J., concurring) (internal quotations and citations

omitted) (quoting Gregg v. Georgia, 428 U.S. 153, 184 (1976); Witherspoon, 391 U.S.

at 519). Without a link to community values, a death sentence loses its moral and

constitutional legitimacy. Spaziano v. Florida, 468 U.S. 447, 482 (1984) (Stevens, J,

dissenting) (majority opinion overturned in relevant part by Hurst, 136 S.Ct. at 623).

The State itself has a strong interest “in having the jury express the conscience of the

community on the ultimate question of life or death.” Jones v. United States, 527 U.S.

373, 382 (1999).

Trial by jury also enhances the fairness and reliability of the sentencing

determination and thus ensures due process under the Fourteenth Amendment.

Nowhere is the need for trial by jury stronger than at a capital penalty phase trial.

Because the stakes are so high, the Court has recognized “an acute need for reliability

in capital sentencing proceedings.” Monge v. California, 524 U.S. 721, 732 (1998);

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion of Burger, C.J.).

With its multiple perspectives and the give and take of group discussion, trial

by jury achieves a more reliable “verdict” on the sentence than a judge acting alone.

Ballew v. Georgia, 435 U.S. 223, 239 (1978) (“substantial doubt” exists “about the

reliability and appropriate representation of panels smaller than six”). The jury’s

collective judgment “tends to compensate for individual short-comings and furnishes

some assurance of a reliable decision.” Herring v. New York, 422 U.S. 853, 863 n. 15

(1975). Exclusion of any one group of people “deprives the jury of a perspective on

human events that may have unsuspected importance in any case that may be

presented.” Hobby v. United States, 468 U.S. 339, 343 (1984). Yet with judicial

setencing, multiple groups are excluded.

Judicial sentencing also risks the introduction of arbitrary factors into the

sentencing determination. Studies have shown that judicial sentencing is all too

often affected by the judge’s fear that “going easy” on a defendant by sentencing him

to life without parole instead of death will jeopardize the judge’s chance of re-election.

See Woodward v. Alabama, 134 S.Ct. 405, 408 (2013) (Sotomayor, J., dissenting from

denial of cert.) (citing studies). This extraneous factor has been shown to sway judges’

decision-making in capital cases, resulting in arbitrary and unreliable death

sentences. Harris v. Alabama, 513 U.S. 504, 519 (1995) (Stevens, J., dissenting); Beck

v. Alabama, 447 U.S. 625, 642 (1980) (extraneous factors “introduce a level of

uncertainty and unreliability into the factfinding process that cannot be tolerated in

a capital case”).

Each of the above core constitutional principles is significantly jeopardized, if

not outright defeated, when a trial court replaces the jury in a capital sentencing

trial.

Allowing a trial court to reconsider the facts, make its own independent

findings, and impose a death sentence based on those findings, contravenes the

founders’ insistence that one judge not have “plenary powers over the life and liberty

of the citizen.” Duncan, 391 U.S. at 156. Because the State failed to present sufficient

evidence to convince the jury that death was appropriate, petitioner was stripped of

his right to trial by jury and faced judgment by a potentially biased or politicallymotivated judge.9

The death sentence was not the product of community

participation or shared responsibility and did not express the conscience of the

9 The decision that petitioner must die was made by an elected judge.

See

County, circuit judicial races see new faces, Howell County News, May 14, 2018;

available at https://www.howellcountynews.com/news/local/county-circuit-judicialraces-see-new-faces/article_6b7ede30-27f0-11e8-8674-574fcdd22c94.html

(last

accessed April 18, 2018).

community. Without a link to community values, petitioner’s death sentence has no

moral or constitutional legitimacy. Spaziano, 468 U.S. at 482 (Stevens, J, dissenting).

Because of the importance of the right to trial by jury and its correlation to

other constitutional rights, this Court has been vigilant to curb any encroachment.

See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000) (jury, not judge, must find

defendant acted with biased purpose in order for hate crime sentencing enhancement

to apply); Ring v. Arizona, 536 U.S. 584 (2002) (jury, not judge, must find existence

of aggravating circumstances beyond a reasonable doubt); Hurst v. Florida, 136 S.Ct.

616 (2016) (jury, not judge, must find any fact necessary for imposition of death

penalty); Alleyne v. United States, 570 U.S. 99 (2013) (jury, not judge, must find fact

of whether defendant brandished firearm before sentence could be enhanced); and

Mathis v. United States, 136 S.Ct. 2243, 2252 (2016) (trial court cannot make

disputed determination about factual basis of prior guilty plea for burglary). The

Court’s vigilance is needed now to ensure that the most important findings made in

an American courtroom, those decisions leading up to and including the decision to

impose a death sentence, are made by a jury, not a judge.10

10 It would be a perversion of justice to hold that a trial court cannot make a

disputed determination about the factual basis of a prior guilty plea for burglary,

Mathis v. United States, 136 S.Ct. 2243, 2252 (2016), yet allow a trial court to replace

the factual findings of the jury with its own and then impose a death sentence that

the jury itself was unwilling to return. See id. at 2258 (Thomas, J., concurring)

(praising Court for avoiding further extension of “precedents that limit a criminal

defendant’s right to a public trial before a jury of his peers”).

III.

This Case Presents an Ideal Vehicle for Resolution of these Issues

The conflict presented here is fully developed and ripe for resolution.

Petitioner properly presented his constitutional claims in the state-court system, and

each of the states involved has set forth its views clearly. There is no need for the

issue to “percolate” further. Moreover, the fact that Missouri has flouted this Court’s

holding in Hurst by itself provides a sufficient basis for granting certiorari.

IV.

Missouri’s Sentencing Procedure Violates the Constitution as

Held by Hurst and Conflicts with the Holdings of the Florida and

Delaware Supreme Courts

The resolution of this conflict is dictated by Hurst. Missouri’s procedure for

dealing with penalty phase deadlock mirrors the hybrid procedure struck down in

Hurst. After the jurors indicated they could not agree on the sentence, Missouri

effectively became a hybrid state. As the Missouri Supreme Court has acknowledged,

the jury’s factual findings “simply disappeared.” State v. Whitfield, 107 S.W.3d 253,

271 (Mo. banc 2003). The trial court then started from scratch as if petitioner had

never asserted his right to trial by jury (L.F. 1774-75; Tr. 2236). The court repeated

the steps set forth in Mo. Rev. St. § 565.030.4, reconsidered the facts, and made its

own independent findings on the statutory aggravating circumstances and the

relative weight of the mitigating and aggravating evidence (Tr. 2236; L.F. 1774-75).

The court then made the decision that a jury of petitioner’s peers could not – he

decided that petitioner deserved to die.

The similarities between Hurst and petitioner’s case are striking. In both, the

jurors found that the State had proven one or more statutory aggravators. Hurst,

136 S.Ct. at 625 (Alito, J., dissenting); Shockley, 410 S.W.3d at 198.

In both, the

jurors made a finding as to the relative weight of the statutory and mitigating

evidence. Hurst, 136 S.Ct. at 620, also 625 (Alito, J., dissenting); Shockley, 410

S.W.3d at 198.

In both, after the jury made its findings, the judge repeated the steps followed

by the jurors, reconsidered the facts, and made his or her own independent findings.

Hurst, 136 S.Ct. at 620; Shockley, 410 S.W.3d at 198. As in Hurst, once the Missouri

jury deadlocks, the judge assumes the “central and singular” role of fact-finder.

Hurst, 136 S.Ct. at 622. As mentioned above, the jury’s findings were gone, and the

court was free to make its own independent findings. Whitfield, 107 S.W.3d at 271;

Griffin, 756 S.W.2d at 488 (“the court must determine punishment independently and

without reliance on the results of any deliberations of the jury”); State v. McLaughlin,

265 S.W.3d 257, 264 (Mo. banc 2008) (trial court may reconsider the facts in making

its own determinations). As in Hurst, since the decision was death, the judge set forth

his own independent factual findings. Hurst, 136 S.Ct. at 620; Shockley, 410 S.W.3d

at 186. In both petitioner’s case and Hurst, the resulting death sentence was the

product of the judge’s independent factual findings, in violation of the Sixth

Amendment. Hurst, 136 S.Ct. at 622; Shockley, 410 S.W.3d at 186.

In petitioner’s case, the Missouri Supreme Court reasoned that no Sixth

Amendment violation occurred because the jury already had made the required

findings; the statute merely “provides an extra layer of findings that must occur

before the court may impose a death sentence.” Shockley, 410 S.W.3d at 198-99. In

Hurst, Florida tried to do the same, urging that “the additional requirement that a

judge also find an aggravator only provides the defendant additional protection.”

Hurst, 136 S.Ct. at 622 (emphasis in original). This Court rejected the argument

because Florida failed to acknowledge the “the central and singular role” the judge

played. Id. The defendant was not eligible for the death penalty until the court made

findings that the defendant receive the death penalty. Id. The jury’s role was only

advisory; the court alone found the facts. Id.

When petitioner’s jury was unable to impose a sentence of death, Missouri’s

sentencing procedure became an unconstitutional hybrid procedure.

The jury’s

findings, however, were not even advisory; they simply disappeared. Whitfield, 107

S.W.3d at 271. The trial court started from scratch, reconsidered the facts, and made

its own independent findings. Id. It was the trial court’s findings upon which

petitioner’s death sentence was based.

Id.

As in Hurst, without the judge’s

independent – and unconstitutional – factual findings, there would be no death

sentence. Hurst, 136 S.Ct. at 622.

The Jurors’ Interrogatories Do Not Render the Constitutional

Violations Harmless

Following its Whitfield decision, the Missouri Supreme Court attempted to

render the constitutional error harmless by changing the jury instructions to require

deadlocked juries to answer several interrogatories to show they made the required

factual findings. McLaughlin, 265 S.W.3d at 264. The jurors must list the statutory

aggravators they found beyond a reasonable doubt and must state they did not

“unanimously find that there are facts and circumstances in mitigation of

punishment sufficient to outweigh facts and circumstances in aggravation of

punishment.”

See Missouri Approved Instruction MAI-CR3d 314.58.

These

interrogatories, however, fail to mitigate the harm suffered by petitioner by the denial

of his Sixth Amendment right to trial by jury.

A. The jurors’ response to the second interrogatory did not reveal what the

jurors actually found at the weighing step, so we cannot conclude that the

trial court made the same finding.

The jurors’ response to the second interrogatory failed to show what the jury

found (L.F. 1723); it only showed what the jury did not find. The jurors stated that

they did not unanimously find that the evidence in mitigation outweighed the

evidence in aggravation (L.F. 1723). As many as eleven jurors could have found that

the evidence in mitigation did outweigh the evidence in aggravation. Or perhaps all

the jurors found that the evidence in mitigation did not outweigh the evidence in

aggravation. There simply is no way of knowing. Because the record does not show

what the jurors actually found, it does not show that the judge and jury made the

same finding as to the weight of the aggravating and mitigating evidence. By the

nature of the interrogatory, the jurors necessarily made a different finding than the

trial court.

In Mills v. Maryland, 486 U.S. 367, 370 (1988), the Court struck down

Maryland’s capital sentencing procedure because the jurors may have believed they

could not consider a mitigating circumstance unless all twelve jurors agreed that the

mitigating circumstance existed. Hypothetically, eleven jurors could believe that six

mitigating circumstances existed, but the jurors might not find any one mitigating

circumstance unanimously. Id. at 374. In such an instance, the jurors would be

prevented from weighing any of the mitigating circumstances. Id. A defendant could

receive the death penalty even though eleven of the jurors thought the death penalty

was inappropriate. Id. “[I]t would certainly be the height of arbitrariness to allow or

require the imposition of the death penalty under the circumstances so postulated.”

Id.

A criminal conviction cannot stand if the jury’s verdict “could be supported on

one ground but not on another, and the reviewing court was uncertain which of the

two grounds was relied upon by the jury in reaching the verdict.” Id. at 376. Capital

cases require “even greater certainty that the [verdict] rested on proper grounds.” Id.

As this Court stressed in Mills, “[u]nless we can rule out the substantial possibility”

that the verdict is based “on the ‘improper’ ground,’ the sentence cannot stand.” Id.

at 377.

We cannot rule out that same possibility in petitioner’s case. It is impossible

to dismiss the possibility that, at the weighing step, just one juror propelled the case

forward to a death verdict when eleven others believed a lesser punishment was

warranted.

Allowing the death penalty to stand in such circumstances “would

certainly be the height of arbitrariness.” Mills, 486 U.S. at 374. The jurors’ response

to the second interrogatory did not render the Hurst violation harmless.

B. The record does not show that the trial judge made the same findings on

statutory and non-statutory aggravating circumstances as the jurors.

At oral pronouncement of the sentence, the trial court noted that the jurors

agreed on three aggravating circumstances, “which the Court has noted and certifies”

(Tr. 2236). The court was silent as to the aggravating circumstance that the jury

rejected. In its written judgment, the trial court stated it agreed “with the jury’s

findings on the statutory aggravating circumstances, and the jury’s findings are

certified by the court” (L.F. 1775). The record is not clear whether the aggravating

circumstance the jury rejected played a role in the court’s individual weighing and

his conclusion that death was warranted.

Under Missouri’s statute, the defendant should receive a sentence of life

without parole if the evidence in mitigation “is sufficient to outweigh the evidence in

aggravation of punishment found by the trier[.]”

Mo. Rev. St. § 565.030.4(3)

(emphasis added). While the jury must consider any statutory and non-statutory

mitigating evidence, it may consider only that aggravating evidence found by the

jury.

Because only that aggravating evidence that was found by the jury may be

considered in the weighing process, the judge may only consider those non-statutory

aggravating facts and circumstances that the jury found unanimously and beyond a

reasonable doubt. Hurst, 136 S.Ct. at 621 (citing Apprendi v. New Jersey, 530 U.S.

466, 494 (2000) (any fact that “expose[s] the defendant to a greater punishment than

that authorized by the jury’s guilty ‘verdict’ is an ‘element’ that must be submitted to

the jury”); see also Washington v. Recuenco, 548 U.S. 212, 220 (2006) (“sentencing

factors, like elements, [are treated] as facts that have to be tried to the jury and

proved beyond a reasonable doubt”); McLaughlin, 265 S.W.3d at 267 (findings by jury

required by Mo. Rev. St. § 565.030.4, must be unanimous); but see State v. Johnson,

284 S.W.3d 561, 585 (Mo. banc 2009) (non-statutory aggravators need not be found

beyond a reasonable doubt).

Here, the record does not show what non-statutory aggravating evidence, if

any, the jury found. The State urged the jury to find petitioner’s alleged future

dangerousness as non-statutory aggravating evidence (Tr. 2215). It urged the jurors

to take the “statutory aggravating circumstances and all the bad evidence” and weigh

it against the evidence in mitigation (Tr. 2215). The non-statutory aggravating

evidence could have been rejected by the jury yet be the bit of evidence that tipped

the weighing in favor of death for the trial court.

The prosecutor’s urging the jury to consider “all the bad evidence,” a term that

could be interpreted in multiple ways and have different meanings for a judge and a

jury, injected arbitrariness and confusion into the proceedings. Because of the term,

it is harder to discern what the jurors considered as non-statutory aggravating

evidence and makes it more likely that the judge employed a different standard of

non-statutory aggravating evidence than the jurors.

In Eddings v. Oklahoma, 455 U.S. 104 (1982), the Court reversed the

defendant’s death sentence and remanded for a new penalty trial because the trial

and appellate courts might not have considered certain mitigating evidence. Id. at

113-17; also 124-25 (Burger, CJ, dissenting) (record was “at best ambiguous” that

court failed to consider the evidence). Reversal was warranted because “we may not

speculate as to whether [the state courts] actually considered all of the mitigating

factors and found them insufficient to offset the aggravating circumstances. …

Woodson and Lockett require us to remove any legitimate basis for finding ambiguity

concerning the factors usually considered by the trial court.” Eddings, 455 U.S. at

119 (O’Connor, J., concurring).

The trial court had no jury findings as to non-statutory aggravating evidence

upon which to rely, nor would he have been bound by any such findings. In the

absence of express jury findings, the record does not show that the death sentence

was based on the jury’s findings rather than the judge’s. Because the State cannot

show that the jury and the court made the same factual findings, it cannot show that

the constitutional violation – i.e., a judge independently making all the required

factual findings and imposing death – was harmless.

This precise issue formed a basis for the Delaware Supreme Court’s decision

declaring the Delaware death penalty statute unconstitutional. Rauf, supra, 145

A.3d at 484 (Holland, J., concurring, joined by Strine and Seizt, JJ). The trial judge

independently found the existence of non-statutory aggravating factors without

knowing which, if any, the jury found. Id. The Delaware Supreme Court concluded,

“[i]n light of Hurst’s application of Ring, this violates the Sixth Amendment.” Id.

CONCLUSION

The framers of the Constitution saw the wisdom of protecting life and liberty

by ensuring that a jury stood as a barrier between a criminal defendant and the

whims of a possibly biased or politically-motivated government official.

They

understood that our justice system depended upon the involvement of a broad crosssection of the community, jurors who shared the responsibility of the administration

ofjustice and, through group discussion and the interchange of ideas, would reach a

fair and reliable decision. When a jury drawn from a fair cross-section of the

community cannot agree that a death sentence is appropriate, the trial court cannot

take over, proceed as if there had never been a jury. Such a sentence violates the

Sixth, Eighth, and Fourteenth Amendments. Our democratic principles mandate

that only a jury, expressing the conscience of the community, can make the ultimate

decision of whether the defendant should live or die. No defendant should receive a

death sentence but by the unanimous vote of his or her peers.

For the foregoing reasons,the petition for a writ ofcertiorari should be granted.

Respectfully submitted,

_ _,

Rosemary E. rcival

Counsel of Record for Petitioner

Office of the Missouri Public Defender

920 Main Street, Suite 500

Kansas City, Missouri 64105

Telephone: (816) 889-7699

Fax:(816)889-2088

Rosemary.Percival@mspd.mo.gov

Apri120, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.