Opposition Brief — Michael Anthony Tanzi, Petitioner v. Florida
Supreme Court briefAug 8, 2018
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CASE NO. 18-5160
IN THE SUPREME COURT OF THE UNITED STATES
MICHAEL ANTHONY TANZI,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
RESPONDENT’S BRIEF IN OPPOSITION
PAMELA JO BONDI
Attorney General
Tallahassee, Florida
SCOTT A. BROWNE*
Chief Assistant Attorney General
Florida Bar No. 0802743
*Counsel of Record
C. SUZANNE BECHARD
Chief Assistant Attorney General
Florida Bar No. 0147745
Office of the Attorney General
3507 E. Frontage Road, Suite 200
Tampa, Florida 33607-7013
Telephone: (813) 287-7910
capapp@myfloridalegal.com
scott.browne@myfloridalegal.com
carlasuzanne.bechard@myfloridalegal.com
COUNSEL FOR RESPONDENT
QUESTION PRESENTED FOR REVIEW
[Capital Case]
Whether certiorari review should be denied where (1)
the Florida Supreme Court’s harmless error analysis in
the context of an alleged Hurst v. State violation
involves only purported errors of state procedure; and
(2) the Florida Supreme Court’s decision does not
conflict with any decision of this Court or involve an
important, unsettled question of federal law?
i
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW.................................. i
TABLE OF CONTENTS............................................. ii
TABLE OF CITATIONS........................................... iii
CITATION TO OPINION BELOW...................................... 1
JURISDICTION................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED............... 1
STATEMENT OF THE CASE.......................................... 2
REASONS FOR DENYING THE WRIT................................... 4
CERTIORARI REVIEW SHOULD BE DENIED WHERE (1) THE
FLORIDA SUPREME COURT’S HARMLESS ERROR ANALYSIS IN THE
CONTEXT OF AN ALLEGED HURST V. STATE VIOLATION INVOLVES
ONLY PURPORTED ERRORS OF STATE PROCEDURE; AND (2) THE
FLORIDA SUPREME COURT’S DECISION DOES NOT CONFLICT WITH
ANY DECISION OF THIS COURT OR INVOLVE AN IMPORTANT,
UNSETTLED QUESTION OF FEDERAL LAW..........................4
CONCLUSION.................................................... 21
CERTIFICATE OF SERVICE........................................ 22
ii
TABLE OF CITATIONS
Cases
Alleyne v. United States,
570 U.S. 99 (2013) .......................................... 10
Apprendi v. New Jersey,
530 U.S. 466 (2000) ..................................... 10, 11
Barclay v. Florida,
463 U.S. 939 (1983) ......................................... 19
Caldwell v. Mississippi,
472 U.S. 320 (1985) ..................................... passim
Cardinale v. Louisiana,
394 U.S. 437 (1969) .......................................... 9
Chapman v. California,
386 U.S. 18 (1965) ........................................ 5, 9
Davis v. State,
207 So. 3d 142 (Fla. 2016),
cert. denied ___ U.S. ___, 137 S. Ct. 2218 (2017) ... 16, 17, 18
Dugger v. Adams,
489 U.S. 401 (1989) ......................................... 15
Florida v. Powell,
559 U.S. 50 (2010) ........................................... 9
Fox Film Corp. v. Muller,
296 U.S. 207 (1935) .......................................... 9
Harris v. Alabama,
513 U.S. 504 (1995) ......................................... 12
Hurst v. Florida,
136 S. Ct. 616 (2016) ................................... passim
Hurst v. State,
202 So. 3d 40 (Fla. 2016),
cert. denied, 137 S. Ct. 2161 (2017) .................... passim
Jenkins v. Hutton,
137 S. Ct. 1769 (2017) ...................................... 10
Kansas v. Carr,
136 S. Ct. 633 (2016) .................................... 6, 16
iii
Kansas v. Marsh,
548 U.S. 163 (2006) .......................................... 6
Lambrix v. Sec’y, Fla. Dep’t of Corr.,
851 F.3d 1158 (11th Cir.),
cert. denied, 138 S. Ct. 217 (2017) ......................... 13
McGirth v. State,
209 So. 3d 1146 (Fla. 2017) ................................. 11
Michigan v. Long,
463 U.S. 1032 (1983) ......................................... 9
Mosley v. State,
209 So. 3d 1248 (Fla. 2016),
cert. denied, 138 S. Ct. 41 (2017) .......................... 12
Reynolds v. State,
___ So. 3d ___, 2018 WL 1633075 (Fla. April 5, 2018) ........ 14
Rice v. Sioux City Memorial Park Cemetery, Inc.,
349 U.S. 70 (1955) .......................................... 18
Ring v. Arizona,
536 U.S. 584 (2002) ................................. 11, 12, 13
Romano v. Oklahoma,
512 U.S. 1 (1994) ....................................... 14, 15
Rose v. Clark,
478 U.S. 570 (1986) ......................................... 18
Schriro v. Summerlin,
542 U.S. 348 (2004) ......................................... 13
State v. DiGuilio,
491 So. 2d 1129 (Fla. 1986) .............................. 7, 17
State v. Gales,
658 N.W.2d 604 (Neb. 2003) .................................. 11
State v. Mason,
___ N.E.3d ___, 2018 WL 1872180 (Ohio, April 18, 2018) ...... 11
Street v. New York,
394 U.S. 576 (1969) .......................................... 9
Tanzi v. Florida,
552 U.S. 1195 (2008) ......................................... 3
iv
Tanzi v. Sec’y, Fla. Dep’t of Corr.,
772 F.3d 644 (11th Cir. 2014),
cert. denied, 136 S. Ct. 155 (2015) .......................... 3
Tanzi v. State,
___ So. 3d ___, 2018 WL 1630749 (Fla. April 5, 2018) ...... 1, 4
Tanzi v. State,
94 So. 3d 482 (Fla. 2012) .................................... 3
Tanzi v. State,
964 So. 2d 106 (Fla. 2007) ................................... 2
Teague v. Lane,
489 U.S. 288 (1989) ......................................... 13
Texas v. Mead,
465 U.S. 1041 (1984) ........................................ 18
Tolan v. Cotton,
134 S. Ct. 1861 (2014) ...................................... 19
United States v. Johnston,
268 U.S. 220 (1925) ......................................... 18
United States v. Purkey,
428 F.3d 738 (8th Cir. 2005) ................................ 11
United States v. Sampson,
486 F.3d 13 (1st Cir. 2007) ................................. 11
Waldrop v. Comm’r, Alabama Dept. of Corr.,
2017 WL 4271115 (11th Cir. Sept. 26, 2017) .................. 11
Witt v. State,
387 So. 2d 922 (Fla. 1980) .............................. 12, 13
Ybarra v. Filson,
869 F.3d 1016 (9th Cir. 2017) ............................... 13
Other Authorities
§ 921.141(2)(c), Fla. Stat. (2017)............................ 15
28 U.S.C. § 1257(a)............................................ 1
U.S. Sup. Ct. R. 10........................................ 4, 19
v
CITATION TO OPINION BELOW
The opinion of the Florida Supreme Court is reported at
Tanzi v. State, ___ So. 3d ___, 2018 WL 1630749 (Fla. April 5,
2018).
JURISDICTION
The judgment of the Florida Supreme Court was entered on
April 5, 2018 and the mandate issued April 26, 2018. Petitioner
invokes the jurisdiction of this Court based upon 28 U.S.C. §
1257(a). Respondent agrees that this statutory provision sets out
the scope of this Court’s certiorari jurisdiction but submits
that this case is inappropriate for the exercise of this Court’s
discretionary jurisdiction.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Respondent
accepts
Petitioner’s
statement
regarding
applicable constitutional and statutory provisions involved.
1
the
STATEMENT OF THE CASE
On
April
25,
2000,
Tanzi
“assaulted,
abducted,
robbed,
sexually battered, and killed Janet Acosta.” Tanzi v. State, 964
So. 2d 106, 111 (Fla. 2007). He was indicted for the murder and
was also charged with carjacking with a weapon, kidnapping to
facilitate a felony with a weapon, armed robbery with a deadly
weapon, and two counts of sexual battery with a deadly weapon.
Ultimately,
he
pled
guilty
to
the
first-degree
murder,
kidnapping, and armed robbery counts. The sexual battery counts
were severed. Id. Following a penalty phase, the jury unanimously
recommended a death sentence. The trial court followed the jury’s
unanimous recommendation, finding in aggravation: “(1) that the
murder was committed by a person previously convicted of a felony
and under sentence of imprisonment or on felony probation; (2)
that
the
murder
kidnapping;
commission
(3)
of
was
committed
that
the
two
sexual
during
murder
was
batteries;
the
commission
committed
(4)
that
the
of
a
during
the
crime
was
committed for the purpose of avoiding arrest; (5) that the murder
was
committed
for
pecuniary
gain;
(6)
that
the
murder
was
especially heinous, atrocious, or cruel (HAC); and (7) that the
murder was committed in a cold, calculated, and premeditated
(CCP)
manner.”
Id.
at
111,
n.1.
The
Florida
Supreme
Court
affirmed Tanzi’s convictions and sentences on direct appeal. Id.
at 121. His case became final when this Court denied his petition
2
for writ of certiorari on February 19, 2008. Tanzi v. Florida,
552 U.S. 1195 (2008).
Tanzi continued to seek relief from his convictions and
sentences through postconviction litigation. See Tanzi v. State,
94 So. 3d 482 (Fla. 2012) (affirming denial of postconviction
relief); Tanzi v. Secretary, Fla. Dept. of Corr., 772 F.3d 644
(11th Cir. 2014), cert. denied, 136 S. Ct. 155 (2015) (affirming
denial of federal habeas corpus petition).
In a successive postconviction motion, Tanzi claimed he was
entitled to relief under Hurst v. Florida, 136 S. Ct. 616 (2016),
as interpreted in Hurst v. State, 202 So. 3d 40 (Fla. 2016),
cert. denied, 137 S. Ct. 2161 (2017). The Florida Supreme Court
affirmed the postconviction court’s denial of relief, finding
that any Hurst related error was harmless:
As we stated in Davis v. State, 207 So. 3d 142, 175
(Fla. 2016), cert. denied, ___ U.S. ___ 137 S. Ct.
2218, 198 L.Ed.2d 663 (2017):
[T]he jury unanimously found all of the
necessary facts for the imposition of death
sentences
by
virtue
of
its
unanimous
recommendations.
.
.
.
The
unanimous
recommendations here are precisely what we
determined in Hurst to be constitutionally
necessary to impose a sentence of death.
(Pet. App. A). Tanzi now seeks certiorari review of the
Florida Supreme Court’s decision.
3
REASONS FOR DENYING THE WRIT
CERTIORARI REVIEW SHOULD BE DENIED WHERE (1) THE
FLORIDA SUPREME COURT’S HARMLESS ERROR ANALYSIS IN THE
CONTEXT OF AN ALLEGED HURST V. STATE VIOLATION INVOLVES
ONLY PURPORTED ERRORS OF STATE PROCEDURE; AND (2) THE
FLORIDA SUPREME COURT’S DECISION DOES NOT CONFLICT WITH
ANY DECISION OF THIS COURT OR INVOLVE AN IMPORTANT,
UNSETTLED QUESTION OF FEDERAL LAW.
Tanzi requests this Court review the Florida Supreme Court’s
decision affirming the denial of his successive postconviction
motion, arguing that the Florida court’s harmless error analysis
violates the Eighth Amendment under Caldwell v. Mississippi, 472
U.S. 320 (1985). Tanzi further contends that the Florida Supreme
Court’s harmless error analysis was “automatic and mechanical” in
violation of this Court’s decisions.
As will be shown, nothing about the Florida Supreme Court’s
harmless error decision is inconsistent with the United States
Constitution. Tanzi does not provide any “compelling” reason for
this Court to review his case. U.S. Sup. Ct. R. 10. Indeed, Tanzi
cannot cite to any decision from this or any appellate court that
conflicts with the Florida Supreme Court’s decision in Tanzi v.
State, 2018 WL 1630749 (Fla. April 5, 2018), in which the court
determined that Tanzi was not entitled to relief because any
alleged error based on Hurst v. State was harmless beyond a
reasonable doubt. Nothing presented in the petition justifies the
exercise of this Court’s certiorari jurisdiction.
4
I.
The Florida Court’s Harmless Error Rule Is Purely a Matter
of State Law.
In Chapman v. California, 386 U.S. 18, 20-21 (1965), this
Court explained that the “application of a state harmless-error
rule is, of course, a state question where it involves only
errors of state procedure or state law.” The Florida Supreme
Court applied Florida’s harmless-error rule to a purely state law
matter—the “findings” the Florida Supreme Court grafted onto this
Court’s
Hurst
v.
Florida
ruling
as
a
matter
of
state
constitutional law. As will be shown, Tanzi’s death sentence did
not
violate
the
contemporaneous
Sixth
Amendment
at
felony
convictions.
all
given
Thus,
a
his
prior
and
harmless-error
analysis was unnecessary in the first instance. To the extent the
Florida Supreme Court engaged in a harmless-error analysis in
Tanzi’s case, such was a matter of state law, rendering this
matter inappropriate for this Court’s certiorari review.
This Court’s ruling in Hurst v. Florida was a narrow one:
“Florida’s sentencing scheme, which required the judge alone to
find the existence of an aggravating circumstance, is . . .
unconstitutional.” Hurst v. Florida, 136 S. Ct. at 624 (emphasis
added). The Florida Supreme Court expanded that narrow Sixth
Amendment holding by requiring in addition that “before the trial
judge may consider imposing a sentence of death, the jury in a
capital
case
must
unanimously
5
and
expressly
find
all
the
aggravating factors that were proven beyond a reasonable doubt,
unanimously find that the aggravating factors are sufficient to
impose
death,
unanimously
find
that
the
aggravating
factors
outweigh the mitigating circumstances, and unanimously recommend
a sentence of death.” Hurst v. State, 202 So. 3d at 57. The
findings required by the Florida Supreme Court involving the
weighing and selection of a defendant’s sentence are not required
by the Sixth Amendment.1 See Kansas v. Marsh, 548 U.S. 163, 164
(2006) (“Weighing is not an end, but a means to reaching a
decision.”); Kansas v. Carr, 136 S. Ct. 633, 642 (2016) (“[t]he
ultimate
question
aggravating
whether
circumstances
mitigating
is
mostly
a
circumstances
outweigh
question
mercy—the
of
quality of which, as we know, is not strained. It would mean
nothing, we think, to tell the jury that defendants must deserve
mercy beyond a reasonable doubt.”).
These additional requirements are a creation of the Florida
Supreme
Court
based
on
its
interpretation
of
the
Florida
Constitution and therefore constitute state law. See Hurst v.
State, 202 So. 3d at 57 (“[T]his Court, in interpreting the
Florida Constitution and the rights afforded to persons within
this State, may require more protection be afforded criminal
The dissent observed that “[n]either the Sixth Amendment nor
Hurst v. Florida requires a jury to determine the sufficiency of
the aggravation, the weight of the aggravation relative to any
mitigating circumstances, or whether a death sentence should be
imposed.” Hurst v. State, 202 So. 3d at 82 (Canady, J.,
dissenting).
6
1
defendants than that mandated by the federal Constitution.”). See
also Hurst v. State, 202 So. 3d at 71 (“Given this State’s
historical adherence to unanimity and the significance of the
right to trial by jury, the majority correctly concludes that
article I, section 22, of the Florida Constitution requires that
all
of
the
recommendation
jury
of
fact-finding,
including
death,
unanimous.”)
be
the
jury’s
final
(Pariente,
J.,
concurring)).2
The
Florida
Supreme
Court
made
it
clear,
in
both
the
majority opinion and the concurring opinion, that the additional
jury findings it now required in death penalty proceedings rested
on Florida law and not on the federal Constitution. The Florida
court then applied its decision in State v. DiGuilio, 491 So. 2d
1129, 1138 (Fla. 1986), to analyze whether the error in Hurst’s
case was harmless. Hurst v. State, 202 So. 3d at 67-68. The court
stated that in the context of a Hurst error, “the burden is on
the State, as the beneficiary of the error, to prove beyond a
reasonable doubt that the jury’s failure to unanimously find all
the facts necessary for imposition of the death penalty did not
In her concurring opinion, Justice Pariente also addressed the
dissent’s argument that the majority opinion strayed far afield
of this Court’s holding in Hurst v. Florida: “The Hurst v.
Florida remand requires only that this Court’s proceedings not be
inconsistent with the United States Supreme Court’s opinion in
Hurst v. Florida, 136 S. Ct. at 624. This Court’s decision is
based on both Florida’s constitutional right to jury trial as
well as the federal Sixth and Eighth Amendments.” Hurst v. State,
202 So. 3d at 74 (Pariente, J., concurring).
2
7
contribute to Hurst’s death sentence in this case.” Id. at 68.
The court disagreed with the dissenting opinion in
Hurst v.
Florida that “`it defies belief to suggest that the jury would
not have found the existence of either aggravating factor if its
finding was binding.’” Hurst v. State, 202 So. 3d at 68 (quoting
Hurst v. Florida, 136 S. Ct. at 626 (Alito, J., dissenting)).
Noting that it now required more under Florida law than this
Court required under the Sixth Amendment, the Florida Supreme
Court opined that “we are not so sanguine as to conclude that
Hurst’s jury would without doubt have found both aggravating
factors—and, as importantly, that the jury would have found the
aggravators sufficient to impose death and that the aggravating
factors
outweighed
the
mitigation.”
Id.
(emphasis
added).
Following its conclusion that these non-fact weighing matters
were
now
part
of
what
a
jury
must
unanimously
“find”
under
Florida law, the court opined:
In Hurst’s case, we cannot find beyond a reasonable
doubt that no rational jury, as the trier of fact,
would determine that the mitigation was “sufficiently
substantial” to call for a life sentence. Nor can we
say beyond a reasonable doubt that there is no
possibility that the Hurst v. Florida error in this
case contributed to the sentence.
Hurst v. State, 202 So. 3d at 69.3
It is noteworthy that in its harmless error analysis in Hurst
v. State, the Florida Supreme Court went so far as to
differentiate the weighing matters from the “Hurst v. Florida
error.” Hurst v. State, 202 So. 3d at 69.
3
8
Florida’s additional requirements in death penalty cases
following Hurst v. State are not mandated by the United States
Constitution. Therefore, the Florida Supreme Court’s harmless
error rule as it relates to alleged Hurst error “involves only
errors of state procedure or state law.” Chapman, 386 U.S. 18,
20-21. This Court has repeatedly recognized that where a state
court
judgment
rests
on
non-federal
grounds,
where
the
non-
federal grounds are an adequate basis for the ruling independent
of the federal grounds, “our jurisdiction fails.” Fox Film Corp.
v. Muller, 296 U.S. 207, 210 (1935); Michigan v. Long, 463 U.S.
1032, 1038 (1983). See also Cardinale v. Louisiana, 394 U.S. 437,
438 (1969) (reaffirming that this Court has no jurisdiction to
review a state court decision on certiorari review unless a
federal
question
was
raised
and
decided
in
the
state
court
below); Street v. New York, 394 U.S. 576, 581-82 (1969) (same).
If a state court’s decision is based on separate state law, this
Court “of course, will not undertake to review the decision.”
Florida v. Powell, 559 U.S. 50, 57 (2010).
Florida’s harmless error analysis in the Hurst context rests
solely on matters of state law. This fact alone militates against
the grant of certiorari in this case.
II.
There Was No Error in This Case.
Tanzi
complains
that
Florida’s
harmless
error
analysis
violates the Eighth Amendment under Caldwell v. Mississippi, 472
9
U.S. 320 (1985), because the jury was instructed that its death
recommendation
harmless
was
error
advisory.
analysis
He
also
constituted
claims
that
Florida’s
“per
se”
rule
a
that
contravenes the Eighth and Fourteenth Amendments and this Court’s
decisions
holding
that
harmless
error
review
must
not
be
“mechanical” because the Florida Supreme Court has yet to find an
alleged
Hurst
recommended
error
the
harmless
death
where
penalty.
the
This
jury
case
unanimously
is
uniquely
inappropriate for certiorari review of Florida’s harmless error
analysis as it applies to alleged Hurst error because there was
no error under Hurst v. Florida in this case at all.
Tanzi’s
prior
felony
conviction
and
his
contemporaneous
convictions for sexual battery and kidnapping established beyond
a reasonable doubt the existence of three aggravating factors.
See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Alleyne v.
United States, 570 U.S. 99, 111 n.1 (2013)
(recognizing the
“narrow exception . . . for the fact of a prior conviction” set
forth
in
Almendarez-Torres
v.
United
States,
523
U.S.
224
(1998)). See also Jenkins v. Hutton, 137 S. Ct. 1769, 1772 (2017)
(noting that the jury’s findings that defendant engaged in a
course of conduct designed to kill multiple people and that he
committed kidnapping in the course of aggravated murder rendered
him eligible for the death penalty). This Court’s ruling in Hurst
v. Florida did not change the recidivism exception articulated in
10
Apprendi and Ring v. Arizona, 536 U.S. 584 (2002).
Lower courts have almost uniformly held that a judge may
perform the “weighing” of factors to arrive at an appropriate
sentence without violating the Sixth Amendment.4 The findings
required by the Florida Supreme Court following remand in Hurst
v. State involving the weighing and selection of a defendant’s
sentence are not required by the Sixth Amendment. See, e.g.,
McGirth v. State, 209 So. 3d 1146, 1164 (Fla. 2017). There was no
Sixth Amendment error in this case.
To the extent Tanzi suggests that jury sentencing is now
required under federal law, this is not the case. See Ring, 536
State v. Mason, ___ N.E.3d ___, 2018 WL 1872180, *5-6 (Ohio,
April 18, 2018) (“Nearly every court that has considered the
issue has held that the Sixth Amendment is applicable to only the
fact-bound eligibility decision concerning an offender’s guilt of
the principle offense and any aggravating circumstances” and that
“weighing is not a factfinding process subject to the Sixth
Amendment.”) (string citation omitted); United States v. Sampson,
486 F.3d 13, 32 (1st Cir. 2007) (“As other courts have
recognized, the requisite weighing constitutes a process, not a
fact to be found.”); United States v. Purkey, 428 F.3d 738, 750
(8th Cir. 2005) (characterizing the weighing process as “the lens
through which the jury must focus the facts that it has found” to
reach its individualized determination); Waldrop v. Comm’r,
Alabama Dept. of Corr., 2017 WL 4271115, *20 (11th Cir. Sept. 26,
2017) (unpublished) (rejecting Hurst claim and explaining
“Alabama requires the existence of only one aggravating
circumstance in order for a defendant to be death-eligible, and
in Mr. Waldrop’s case the jury found the existence of a
qualifying aggravator beyond a reasonable doubt when it returned
its guilty verdict.”) (citation omitted); State v. Gales, 658
N.W.2d 604, 628-29 (Neb. 2003) (“[W]e do not read either Apprendi
or Ring to require that the determination of mitigating
circumstances, the balancing function, or proportionality review
to be undertaken by a jury”).
4
11
U.S. at 612 (Scalia, J., concurring) (“[T]oday’s judgment has
nothing to do with jury sentencing. What today’s decision says is
that
the
jury
must
find
the
existence
of
the
fact
that
an
aggravating factor existed.”) (emphasis in original); Harris v.
Alabama, 513 U.S. 504, 515 (1995) (holding that the Constitution
does not prohibit the trial judge from “impos[ing] a capital
sentence”). No case from this Court has mandated jury sentencing
in a capital case, and such a holding would require reading a
mandate into the Constitution that is simply not there. The
Constitution provides a right to trial by jury, not to sentencing
by jury.
Aside from failing to present any federal constitutional
error, this case is also inappropriate for certiorari review
because this Court would
first have to decide the predicate
question of retroactivity.
Tanzi’s case was final in 2008, well
before this Court decided Hurst. Hurst is only applicable to
Tanzi through a more expansive state law test for retroactivity,
providing retroactive application to the date this Court decided
Ring in 2002.5 As Ring, and by extension Hurst, has been held not
In Mosley v. State, 209 So. 3d 1248, 1276-83 (Fla. 2016), cert.
denied, 138 S. Ct. 41 (2017), the Florida Supreme Court held that
Hurst is retroactive to cases which became final after this
Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), on June
24, 2002. Mosley, 209 So. 3d at 1283. In determining whether
Hurst should be retroactively applied to Mosley, the Florida
Supreme Court conducted a Witt analysis, the state-based test for
retroactivity. See Witt v. State, 387 So. 2d 922, 926 (Fla. 1980)
(determining whether a new rule should be applied retroactively
12
5
to be retroactive under federal law, Florida has implemented a
test which provides relief to a broader class of individuals in
applying Witt v. State, 387 So. 2d 922, 926 (Fla. 1980) instead
of Teague for determining the retroactivity of Hurst. See Schriro
v.
Summerlin,
542
U.S.
348,
358
(2004)
(holding
that
“Ring
announced a new procedural rule that does not apply retroactively
to cases already final on direct review”). Federal courts have
had little trouble determining that Hurst, like Ring, is not
retroactive at all under Teague. See Lambrix v. Sec’y, Fla. Dep’t
of
Corr.,
851
F.3d
1158,
1165
n.2
(11th
Cir.
2017)
(“under
federal law Hurst, like Ring, is not retroactively applicable on
collateral review”), cert. denied, 138 S. Ct. 217 (2017); Ybarra
v.
Filson,
869
F.3d
1016,
1032-33
(9th
Cir.
2017)
(denying
permission to file a successive habeas petition raising a Hurst
v. Florida claim concluding that Hurst v. Florida did not apply
retroactively). Consequently, this Court would first have to find
Hurst
retroactive
Summerlin,
under
before
federal
reaching
law,
the
overruling
underlying
Schriro
v.
question
of
complaint
to
harmlessness. Certiorari should be denied.
Tanzi’s
attempt
to
tie
his
harmless
error
Caldwell v. Mississippi, 472 U.S. 320 (1985), fails. In Caldwell,
by analyzing the purpose of the new rule, extent of reliance on
the old rule, and the effect of retroactive application on the
administration of justice) (citing Stovall v. Denno, 388 U.S.
293, 297 (1967); Linkletter v. Walker, 381 U.S. 618 (1965)).
13
this Court found that a prosecutor’s comments diminishing the
jury’s
sense
of
responsibility
for
determining
the
appropriateness of a death sentence was “inconsistent with the
Eighth Amendment’s ‘need for reliability in the determination
that death is the appropriate punishment in a specific case.’”
Caldwell, 472 U.S. at 323 (citing Woodson v. North Carolina, 428
U.S. 280, 305 (1976)). Just as there was no Sixth Amendment
error, there was also no Caldwell error in this case. The absence
of any error renders Tanzi’s complaint about Florida’s harmless
error analysis completely void and therefore inappropriate for
the exercise of this Court’s certiorari jurisdiction.
To
establish
constitutional
error
under
Caldwell,
a
defendant must show that the comments or instructions to the jury
“improperly described the role assigned to the jury by local
law.” Romano v. Oklahoma, 512 U.S. 1, 9 (1994). Tanzi’s jury was
properly instructed on its role based on the state law existing
at the time of his trial. See Reynolds v. State, ___ So. 3d ___,
2018 WL 1633075, *10 (Fla. April 5, 2018) (rejecting defendant’s
Caldwell challenge and explaining that “Caldwell, as interpreted
by Romano, ensures that jurors understand their actual sentencing
responsibility; it does not indicate that jurors must also be
informed of how their responsibilities might hypothetically be
different in the future, should the law change”).
Tanzi’s jury was not misled as to its role under the law as
14
it existed at the time of his trial. Indeed, in closing argument,
defense
counsel
“responsibility”
emphasized
to
determine
that
the
it
was
sentence
the
because
jury’s
the
judge
would give “great weight” to the recommendation and in “only the
rarest of circumstances would he not follow it. . . .” A Florida
jury’s
decision
regarding
a
death
sentence
was,
and
still
remains, an advisory recommendation. See Dugger v. Adams, 489
U.S. 401 (1989). See also § 921.141(2)(c), Fla. Stat. (2017)
(providing
that
“[i]f
a
unanimous
jury
determines
that
the
defendant should be sentenced to death, the jury’s recommendation
to the court shall be a sentence of death”) (emphasis added).
Thus, there was no violation of Caldwell because there were no
comments or instructions to the jury that “improperly described
the role assigned to the jury by local law.” Romano, 512 U.S. at
9.
Tanzi’s argument that Florida has a “per se” harmless error
rule in Hurst related cases that violates the Eighth Amendment
and this Court’s precedents is unavailing. As noted, this Court’s
Hurst v. Florida opinion did not address the process of weighing
the aggravating and mitigating circumstances or suggest that the
jury must conduct the weighing process to satisfy the Sixth
Amendment.
Rather,
the
Florida
Supreme
Court
expanded
this
Court’s holding in its Hurst v. State opinion and, based on
Florida’s constitutional right to a jury trial, found that the
15
jury must make findings on the sufficiency of the aggravating
circumstances and on the weighing process. However, as previously
explained, there was nothing in this Court’s decision in Hurst v.
Florida to conclude that the process of weighing the aggravating
and mitigating factors was a “fact” for Sixth Amendment purposes.
See Kansas v. Carr, 136 S. Ct. 633, 642 (2016).
It is difficult to decide questions of harmless error if two
courts do not agree on the nature of the error. While the Florida
Supreme
Court
sees
mitigation
and
weighing
as
factual
determinations that the jury must make, this Court does not. This
Court would be hard pressed to conduct any type of harmless error
analysis regarding factual findings that it does not view as
facts at all or as being error in the first place. Tanzi ignores
this
dilemma;
however,
this
dilemma
makes
this
case
a
poor
vehicle for deciding the issue of whether the Florida Supreme
Court erroneously conducted its harmless error analysis of the
Hurst v. State error.
While the Florida Supreme Court viewed the weighing process
as
a
factual
finding
under
Hurst
v.
State,
it
nevertheless
determined that any such error was harmless in Tanzi’s case. In
so doing, the court relied on its reasoning in Davis v. State,
207 So. 3d 142, 175 (Fla. 2016), cert. denied ___ U.S. ___, 137
S.
Ct.
2218
(2017).
In
Davis,
as
in
this
case,
the
jury
unanimously recommended the death penalty. Id. at 174. The court
16
reiterated the DiGuilio harmless error standard as it relates to
alleged
Hurst
error:
“the
burden
is
on
the
State,
as
the
beneficiary of the error, to prove beyond a reasonable doubt that
the jury’s failure to unanimously find all the facts necessary
for imposition of the death penalty did not contribute” to the
death sentence imposed. Id. (quoting Hurst v. State, 202 So. 3d
at 68). The Davis court provided a detailed analysis of its
review of the record giving rise to a finding of harmless error,
including a review of the instructions to the jury, the facts of
the case, and the jury’s unanimous jury recommendation. Davis,
207 So. 3d at 174-75. The court noted in Davis that “[t]he
evidence in support of the six aggravating circumstances found as
to both victims was significant and essentially uncontroverted.”
Id., at 175 (emphasis in original). The court then concluded that
any Hurst error was harmless beyond a reasonable doubt:
Here, the jury unanimously found all of the necessary
facts for the imposition of death sentences by virtue
of its unanimous recommendations. In fact, although the
jury was not informed that it was not required to
recommend death unanimously, and despite the mitigation
presented, the jury still recommended that Davis be
sentenced to death for the murders of Bustamante and
Luciano.
The
unanimous
recommendations
here
are
precisely
what
we
determined
in
Hurst
to
be
constitutionally necessary to impose a sentence of
death. Accordingly, Davis is not entitled to a new
penalty phase.
Davis, 207 So. 3d at 175.
Although the Florida Supreme Court did not set forth its
17
reasoning
in
Tanzi’s
case,
there
is
no
basis
to
suggest
it
subjected the record in this case to any less rigorous analysis
than
it
did
in
the
Davis
case,
consideration
the
seven
aggravating
including
taking
circumstances
into
supporting
Tanzi’s death sentence. Indeed, Tanzi has not identified a single
sentence or quote in the court’s opinion to support his argument
that the court applied a per se harmless error analysis without
examining the facts of Tanzi’s case.
The law is well-settled that this Court does not grant
certiorari
“to
review
evidence
and
discuss
specific
facts.”
United States v. Johnston, 268 U.S. 220, 227 (1925); Texas v.
Mead, 465 U.S. 1041 (1984). This Court is “consistent in not
granting certiorari except in cases involving principles, the
settlement
of
which
is
of
importance
to
the
public
as
distinguished from that of the parties.”
Rice v. Sioux City
Memorial
Park
Cemetery,
Inc.,
349
U.S.
70
(1955).
Tanzi’s
personal
dissatisfaction
with
the
Florida
Supreme
Court’s
harmless error determination does not warrant certiorari review.
See Rose v. Clark, 478 U.S. 570, 584 (1986) (noting that although
this Court has authority to perform harmless error review, it
“do[es] so sparingly”). As this Court has previously noted, the
Florida Supreme Court does not apply its harmless error analysis
in an automatic or mechanical fashion, but rather upholds death
sentences on the basis of this analysis only when it actually
18
finds that the error is harmless. Barclay v. Florida, 463 U.S.
939, 958 (1983). In this case, the Florida Supreme Court reviewed
Tanzi’s case and determined that any Hurst v. State error was
harmless beyond a reasonable doubt.
In sum, this Court should decline to exercise its certiorari
jurisdiction because the Florida Supreme Court’s decision finding
harmless error is entirely consistent with this Court’s precedent
and does not present any unsettled question of law. At the heart
of Tanzi’s claim is the contention that the Florida Supreme Court
incorrectly concluded that the Hurst v. State error in his case
was harmless. Tanzi’s argument is not only meritless, but also
further proves why certiorari review is not warranted. Rule 10 of
this Court’s rules states that “a petition for writ of certiorari
is rarely granted when the asserted error consists of erroneous
factual findings or the misapplication of a properly stated rule
of law.” Sup. Ct. R. 10; see also Tolan v. Cotton, 134 S. Ct.
1861, 1868 (2014) (Alito, J., concurring) (noting that “error
correction” is “outside the mainstream of the Court’s functions
and . . . not among the ‘compelling reasons’” that govern the
grant
of
certiorari)
(citations
omitted).
To
resolve
Tanzi’s
questions presented, this Court would have to engage in the very
“error correction” analysis that this Court has stated is against
its principle function. Thus, Tanzi has demonstrated that there
is no compelling reason for this Court to exercise its certiorari
19
jurisdiction in this case. Accordingly, certiorari review should
be denied.
20
CONCLUSION
Based on the foregoing, Respondent respectfully
requests
that this Court DENY the petition for writ of certiorari.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
s/ Scott A. Browne
SCOTT A. BROWNE*
Chief Assistant Attorney General
Florida Bar No. 0802743
*Counsel of Record
C. SUZANNE BECHARD
Chief Assistant Attorney General
Florida Bar No. 0147745
Office of the Attorney General
3507 E. Frontage Road, Suite 200
Tampa, Florida 33607-7013
Telephone: (813) 287-7910
capapp@myfloridalegal.com
scott.browne@myfloridalegal.com
carlasuzanne.bechard@myfloridalegal.com
COUNSEL FOR RESPONDENT
21
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this 8th day of August 2018, a
true and correct copy of the foregoing RESPONDENT’S BRIEF IN
OPPOSITION has been submitted using the Electronic Filing System.
I further certify that a copy has been sent by U.S. mail to: Paul
Kalil, Assistant CCRC-S, Law Office of the Capital Collateral
Regional Counsel, Southern Region, One East Broward Boulevard,
Suite 444, Fort Lauderdale, Florida 33301. All parties required
to be served have been served.
s/ Scott A. Browne
SCOTT A. BROWNE
Counsel for Respondent
22
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.