Opposition Brief — Michael Gordon Reynolds, Petitioner v. Florida

DOCKET NO. 18-5181

IN THE SUPREME COURT OF THE UNITED STATES

MICHAEL REYNOLDS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE FLORIDA SUPREME COURT

PAMELA JO BONDI

ATTORNEY GENERAL

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

' *Counsel of Record

MARILYN MUIR BECCUE

Assistant Attorney General

Office of the Attorney General

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Facsimile: (813) 281-5501

capapp@myfloridalegal.com

Carolyn. Snurkowski@myfloridalegal .com

marilyn .beccue@myfloridalegal .com

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

1. Whether this Court should grant review of the Florida

Supreme Court’s decision holding that Reynolds’s jury

was not misled about its sentencing role nor was its

responsibility minimized in violation of the Eighth

Amendment as discussed in this Court’s decision in

Caldwell v. Mississippi, 472 U.S. 320 (1985) by an

instruction that accurately reflected Florida law even

though that law subsequently changed?

2. Whether this Court should review the Florida Supreme

Court’s decision holding that any Hurst error in

Reynolds case was harmless and concluding as a matter of

state law that Reynolds’s argument erroneously applied

its distinguishable Eighth Amendment discussion in Hurst

v. State to a Caldwell claim?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...... 2... eee eee ee eet teens ii

TABLE OF CONTENTS 2... ccc ccc ccc cee eee eee re ee ee tee ee ee ees iii

TABLE OF CITATIONS 2. cc eee ce ee eee te ew tee ee eee eee eee Vv

CITATION TO OPINION BELOW 2... cc ee ee ce ee eee ee ee ees 1

STATEMENT OF JURISDICTION 2... ccc eee eee ee eee eee eee eee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..........0..00- 2

STATEMENT OF THE CASE AND FACTS 2... ce ccc ce ee ee eee eee ee ee 3

REASONS FOR DENYING THE WRIT 2.2... ee eee eee ee ee ee ee eens 12

THERE IS NO BASIS FOR CERTIORARI REVIEW OF THE FLORIDA

SUPREME COURT’S HARMLESS ERROR DECISION BECAUSE THERE IS

NO CONFLICT BETWEEN STATE COURTS OF LAST RESORT OR UNITED

STATES COURTS OF APPEAL NOR DOES THE CASE PRESENT AN

IMPORTANT UNSETTLED QUESTIONS OF FEDERAL LAW ............. 12

ISSUE Tow. e ec ec ee tw we we ee ew eee ee tee eee ee ete es 17

REYNOLDS’S JURY WAS NOT MISLED ABOUT ITS SENTENCING ROLE

NOR WAS ITS RESPONSIBILITY IN DETERMINING AN APPROPRIATE

SENTENCE MINIMIZED IN VIOLATION OF THE EIGHTH AMENDMENT

BY A JURY INSTRUCTION THAT ACCURATELY REFLECTED FLORIDA

LAW AND SPECIFICALLY INFORMED THE JURY THAT THEIR

RECOMMENDATION WOULD BE GIVEN GREAT WEIGHT BY THE

SENTENCING JUDGE. 2... ccc ce ee cee eee eas 17

What Reynolds’s jury was told about its role in

determining his Sentence ... i.e eee eee eee eee 17

Hurst v. Florida and Hurst v. State ......cccececcccace 18

The Florida Supreme Court’s decision does not

conflict with this Court’s Sixth Amendment

JULISPLUCENCE Lecce cece eee ce eee eee eee ee ee eee eens 20

The Florida Supreme Court’s decision does not

conflict with this Court’s Caldwell decision ......... 22

Reynolds resorts to state law and improperly

conflates Hurst v. State and Caldwell ...... ccc eeaee 25

iii

The Florida Supreme Court’s decision does not

conflict with that of any federal appellate

court or state SUPLTEME COULT 2. ce ccc w cere eee e eee cease 26

ISSUE ID wee ccc ccc cc ccc eee ee ee ee ee eee ee et eee eee 28

THE FLORIDA SUPREME COURT CONCLUDED AS A MATTER OF STATE

LAW THAT REYNOLDS’S ARGUMENT ERRONEOUSLY APPLIED ITS

DISTINGUISHABLE EIGHTH AMENDMENT DISCUSSION IN HURST V.

STATE TO A CALDWELL CLAIM. woe ccc cece cece cee e ee eee eens 28

The decision of the Florida Supreme Court does

not conflict with that of any federal appellate

court or state SuUpreMe COULT 2... cece cece cece eer c cece 35

CONCLUSION 2.2... cee ec cc ee ee eee eee eee tte eee teeta 37

CERTIFICATE OF SERVICE 2... 2c ccc cw cw ee ee eee eee et ee eee een aes 38

APPENDIX 2... 2. ccc wc cw ee we ew ee eee ee tee eer eee eee eee A0Q01-A030

iv

TABLE OF CITATIONS

Cases

Abdol v. State,

220 So. 3d 1106 (Fla. 2017) woe ee ee tw ees 29

Almendarez-Torres v. United States,

523 U.S. 224 (1998) wo. ee cc ee ewe ec we ee eee ewes 21

Apprendi v. New Jersey,

530 U.S. 466 (2000) .... cece ccc ee ee eee 12, 20, 21, 22

Arizona v. Fulminante,

499 U.S. 279 (1991) LL cc cc ee te tee twee eee ec cece 32

Banks v. State,

219 So. 3d 32. (Fla. 2017) co. ee ec cc ee tw we te ee ee ee 29

Belcher v. Sec'y, Fla. Dep’t of Corr.,

427 Fed. Appx. 692 (11th Cir. 2011) ... ee. cc eeee 27

Blakely v. Washington,

542 U.S. 296 (2004) coc ccc ccc ccc cee ee ee eee ee eee eee eens 13

Bowling v. Parker,

344 F.3d 487 (6th Cir. 2003) 2... ccc cc et te ee 27

Braxton v. United States,

500 U.S. 344 (1991) cece cee ee ee eee te tetas 12

Caldweli v. Mississippi,

472 U.S. 320 (1985) .......... eee eee ee eee eee eee een eee passim

Cunningham v. California,

549 U.S. 270 (2007) . ccc cece cc ee et ee eee ee eee eee ee eee 21

Danforth v. Minnesota,

552 U.S. 264 (2008) oe. ce ce ee ee et ee ewe eee ww ees 14

Darden v. Wainwright,

477 U.S. 168 (1986) .. eee cee ccc cee eee tenes 24

Davis v. Singletary,

119 F.3d 1471 (11th Cir. 1997) we... cc cc ce ee ec ee ewes 27

Deviney v. State,

213 So. 3d 794 (Fla. 2017) wee ccc cc cece ce cee ew ee eee ee ees 29

Evans v. Sec’y, Fla. Dep’t Corr.,

699 F.3d 1249 (11th Cir. 2012) wo. eee tee eee 24

Everett v. State,

43 Fla. L. Weekly S250 (Fla. May 24, 2018) ...........0 eee 29

Fleenor v. Anderson,

171 F.3d 1096 (7th Cir. 1999) cL ee ce ees 27

Florida v. Powell,

559 U.S. 50 (2010) coi ce cc cw ee ee eee ce ee ec eens 14

Fox Film Corp. v. Muller,

296 U.S. 207 (1935) coc cc ccc cc cee ce ec eee eee ee eens 14

Galindez v. State,

955 So. 2d 517 (Fla. 2007) coli ee ee eee cee eee es 36

Gregg v. Georgia,

428 U.S. 153 (1976) co.cc ee ccc ccc ce ee eee ee teens 29

Hildwin v. Florida,

490 U.S. 638 (1989) co.cc ccc rece cere ee crc eee eee ee teens 19

Hurst v. Florida,

136 S. Ct. 616 (2016) ... ce cc cw ee ee te ee passim

Hurst v. State,

202 So. 3d 40 (Fla. 2016),

cert. denied, 137 S. Ct. 2161 (2017) .... cc ee ee ee es passim

James v. United States,

550 U.S. 192 (2007) Lecce ccc cc cee eee eee cee eee eects 21

Jenkins v. Hutton,

137 S. Ct. 1769 (2017) co.cc ccc cc ee ee eee 20

Johnson v. State,

205 So. 3d 1285 (Fla. 2016) ... cc ce ee te ee we cece eee 29

Johnson v. United States,

520 U.S. 461 (1997) Levee cece cc ww ew ee eee eee ete ee ee ene 35

Johnston v. Singletary,

162 F.3d 630 (llth Cir. 1998) Lo... eee ec ee ee ee 27

Jones v. United States,

526 U.S. 227 (1999) cece ccc ccc ce eee ee ee ew eee eee ee eens 21

Kansas v. Carr,

136 S. Ct. 633 (2016) .. i ccc ee ce we et ee ee ee eee ee ee ee 16

Kirkman v. State,

233 So. 3d 456 (Fla. 2018) .. ec ee ee ees 29

Lambrix v. Sec’y, Fla. Dep’t of Corr.,

851 F.3d 1158 (11th Cir.),

cert. denied, 138 S. Ct. 217 (2017) .. i... ee ee ees 13

Lorraine v. Coyle,

291 F.3d 416 (6th Cir. 2002) Lo. ee cee cc cee es 27

Michigan v. Long,

463 U.S. 1032 (1983) ... ccc ee ee eee cc eee ee eee teens 14, 26

Mitchell v. Esparza,

540 U.S. 12 (2003) cece cc cece ce cee ee eee eee eens 34

Mosley v. State,

209 So. 3d 1248 (Fla. 2016),

cert. denied, 138 S. Ct. 41 (2017) wi. eee eee eee ccc ee ett eee 8

Muhammad v. State,

782 So. 2d 343 (2001) Loe ec ce eee eet ee cee ee eee 23

Neder v. United States,

527 U.S. 1 (1999) wo ccc ccc cc ee ce ee eee ee ee tes 17, 32, 33, 34

Pagan v. State,

235 So. 3d 317 (Fla. 2018) wo... ccc eee ees 29

Proffitt v. Florida,

428 U.S. 242 (1976) ccc cc cece eee eee ee eee eee eee eee ees 16

Reynolds v. Florida,

549 U.S. 1122 (2007) wc cc cece ce ec cece wee ee ee ce eee ee eee 8

Reynolds v. State,

So. 3d , 2018 WL 1633075, 43 Fla. L. Weekly S163 (Fla.

Apr. 5, 2018) 2... ccc ccc ee ee tee ee ee eee eee cence passim

Reynolds v. State,

934 So. 2d 1128 (Fla. 2006) wo. ew cece ccc ee ee eee nee 5, 6, 8

Reynolds v. State,

99 So. 3d 459 (Fla. 2012) wo ccc ccc ce ee eee eee cece 8

vil

Ring v. Arizona,

536 U.S. 584 (2002) wove ccc cece ee eee cee ee ee eee ete passim

Rockford Life Insurance Co. v. Illinois Dept. of Revenue,

482 U.S. 182 (1987) wee ccc cc ccc cc cee cee eee ee eee eee nee ‘12

Romano v. Oklahoma,

512 U.S. 1 (1994) Lecce cc cc ccc ce ee ee eee eee eee wees passim

Schriro v. Summerlin,

542 U.S. 348 (2004) .. cece cc ee ee ee ecco es 13, 34

Spaziano v. Florida,

468 U.S. 447 (1984) cece ccc cc eee cc cc eee ee ee ee ets 19

Spencer v. State,

615 So. 2d 688 (Fla. 1993) ..e cece ce eee eee te eee 6

State v. Gales,

658 N.W.2d 604 (Neb. 2003) .... eee cc ccc ttc te ee eee 16

State v. Mason,

2018 WL 1872180 (Oh. Apr. 18, 2018) Li... eee es 16

Sullivan v. Louisiana,

508 U.S. 275 (1993) coe cc ww eww weet ee 33, 34

Teague v. Lane,

489 U.S. 288 (1989) LL. cece ccc ccc ce eee ec e ee wee ences 13

Tedder v. State,

322 So. 2d 908 (Fla. 1975) 2... ec ee et et eee ee 18

United States v. McCray,

563 Fed. Appx. 705 (11th Cir. 2014) ... eee eee ee eee eee 35

United States v. Purkey,

428 F.3d 738 (8th Cir. 2005) 22... ce cc eee cee ees 16

United States v. Sampson,

486 F.3d 13 (1st Cir. 2007) ......... Ce ee eee eee ee eee eee 16

Waldrop v. Comm’r, Alabama Dep’t of Corr.,

15-10881, 2017 WL 4271115 (11th Cir. Sept. 26, 2017) ........ 20

Washington v. Recuenco,

548 U.S. 212 (2006) wo. cece cc ec ccc ee eee ee ee tee eee 34

Weaver v. Massachusetts,

137 S. Ct. 1899 (2017) cece ccc cc cece ee ct tte ee ee ee ee 32

Wilson v. Sirmons,

536 F.3d 1064 (10th Cir. 2008) LL lll ee ec ete 27

Witt v. State,

387 So 2d 922 (Fla. 1980) .............. So eee ee eee 10, 13

Ybarra v. Filson,

869 F.3d 1016 (9th Cir. 2017) wel ccc ee ew eee 13

Other Authorities

§ 921.141 (2), Fla. Stat. (2003) .... cc cc cee eee ee ees 17

§ 921.141(2) (c), Fla. Stat. (2018) .. cee ccc eee eee 24

§ 921.141(3), Fla. Stat (2003) ... ccc cc ee ee ee ee eee 18

28 U.S.C. § 1257 (a) cece cece ccc ee ce eee eee eens 1

U.S. Sup. Ct. R. 10 we cee ee cee ee ee tee tt ee twee te ee ee 12

ix

CITATION TO OPINION BELOW

The decision of the Florida Supreme Court is reported at

Reynolds v. State, So. 3d , 2018 WL 1633075, 43 Fla. L.

Weekly S163 (Fla. Apr. 5, 2018).

STATEMENT OF JURISDICTION

The judgment of the Florida Supreme Court was entered on April

5, 2018. Petitioner asserts that this Court’s jurisdiction is 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.

Petitioner presents this Court with a plurality opinion from

the Supreme Court of Florida. Only two justices, Justices Labarga

and Lewis, joined in the per curiam opinion. Justices Canady and

Polston concurred in result without an opinion. Justice Lawson

concurred specially with an opinion finding that there was no

cognizable Caldwell claim presented. He further stated that any

Caldwell claim was procedurally barred. Justice Pariente dissented

finding that Reynolds’s Caldwell claim in light of Hurst v. State

had merit. Finally, Justice Quince dissented, but on Hurst harmless

error grounds and did not address the Caldwell issue. Hence, there

is no majority decision of the Florida Supreme Court, only a

majority result.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner’s statement regarding the

applicable constitutional and statutory provisions involved.

STATEMENT OF THE CASE AND FACTS

On July 22, 1998, Shirley Razor, the mother of Robin Razor,

arrived at the trailer where Robin and her 1l-year old daughter,

Christina Razor, were living with Danny Ray Previtt. Danny had

been working on the trailer and Shirley was bringing him items

needed for the job. Outside of the trailer Shirley saw Danny lying

on the ground. Based on past experience, Shirley believed that

Danny was passed out after a night of drinking. Shirley decided to

go to her own trailer and eat lunch before returning with the items

for Danny.

When she returned to Robin, Christina, and Danny’s trailer,

she noticed that Danny was still on the ground. It was then that

she saw that Danny had a “hole in his head.” She ran to a neighbor's

house and called the authorities. When fire rescue arrived, Shirley

went into the trailer and found Robin’s and Christina’s bodies.

At trial, the medical examiner testified about the injuries

suffered by the three victims:

The autopsy of Danny Ray Privett revealed that he

suffered a large depressed = skull fracture with

additional injuries to the head area. The wounds

appeared to have been caused by three or more separate

blows, with the injuries indicating that the assailant

had been behind the victim. There was no indication of

any defensive wounds on Danny, and examination of his

major skull injury revealed that the injury was likely

caused by a partially broken cinder block, based on

fragments found within the wound. The medical examiner

was unable to determine the order in which the injuries

had been inflicted upon him. The cause of death for Danny

3

was determined to be primarily due to blunt force trauma

to the head with the large depressed skull fracture

probably being the fatal blow. If this blow had been

inflicted first, the medical examiner opined that the

victim would have lost consciousness within a second to

a minute or two.

Robin and Christina Razor were found dead inside the

living room portion of the camper trailer being used as

living quarters. Robin was found lying on the floor,

face up. Christina was found nearby sitting on the couch

and leaning to her left. The living room area was in

disarray and a large amount of blood was scattered

throughout this area of the trailer. Robin Razor's

autopsy revealed that she suffered multiple stab wounds

along with multiple blows to the side of her face and a

broken neck resulting in injuries to her spinal cord.

Closer examination revealed that Robin suffered ten stab

wounds to the head and neck area and one to the torso

area. The wounds appeared to have been inflicted with a

sharp object such as a knife or scissors. Based on

examination of the Robin's body and the defensive wounds

present, the medical examiner opined that she had been

involved in a violent struggle. In addition to the above

wounds, Robin suffered multiple superficial wounds to

her torso area which the medical examiner stated to be

consistent with torment wounds—wounds produced not to

cause serious injury but to cause aggravation and

produce fear in the victim. The medical examiner was of

the opinion that because blows to the victim's head were

inflicted at different angles and the presence of

significant defensive wounds, it was likely that she was

conscious and struggling when these wounds’ were

inflicted. The primary cause of death for Robin was

determined to be the broken neck and spinal cord injury,

although bleeding from the stab wounds would have also

resulted in death.

The autopsy of Christina Razor revealed that she

suffered blunt force trauma to her head, a stab wound to

the base of her neck that pierced her heart, and another

stab wound to her right shoulder that pierced her lung

and lacerated her pulmonary artery. These latter two

wounds would have resulted in significant internal and

external hemorrhaging and would have been fatal. The

medical examiner indicated that the only sign of defense

4

wounds to Christina was the presence of a small contusion

to her left hand, which could have occurred as_ she

attempted to block a blow from her assailant. The medical

examiner opined that Christina would have lost

consciousness within a minute or two of receiving the

stab wounds. The primary cause of death for Christina

was determined to be internal and external hemorrhaging.

Reynolds v. State, 934 So. 2d 1128, 1135-36 (Fla. 2006).

Shortly before the murders, Reynolds had been involved in an

altercation with Danny regarding a trailer that was allegedly given

to Reynolds and that Danny had removed from Reynolds’s property

without, his permission. Reynolds informed investigators that he

later apologized to Danny and let Danny keep the trailer. Reynolds

asserted that he had never been inside the trailer where Robin and

Christina lived. The investigator noticed and inquired about a

number of injuries on Reynolds’s hands and ankle. Reynolds had

various explanations for the injuries.

Extensive DNA evidence found in the interior and on the

exterior of the trailer matched Reynolds’s DNA profile. A neighbor

saw a car matching Reynolds’s at the trailer the night before the

bodies were discovered. Reynolds was charged with three counts of

first-degree murder and burglary of a dwelling with an armed

battery. The jury found Reynolds guilty of first-degree murder of

Robin and Christina; guilty of the lesser-included offense of

second-degree murder of Danny; and guilty of burglary of a dwelling

during which an armed battery was committed.

At the penalty phase, Reynolds, after consultation with his

attorney, waived his right to present mitigation.! The State

presented evidence of Reynolds’s multiple priar convictions, the

circumstances surrounding a previous aggravated battery

conviction, and victim impact testimony. The jury unanimously

recommended death for the first-degree murders of Robin and

Christina. At a Spencer* hearing, Reynolds testified, and the State

relied on the evidence already presented in the guilt and penalty

phases.

The judge sentenced Reynolds to death for the murders of Robin

and Christina. The court’s sentencing order notes that the State

proved beyond a reasonable doubt the existence of four statutory

aggravators for the murder of Robin: (1) Reynolds had previously

been convicted of a another capital felony or a felony involving

a threat of violence to the person (great weight); (2) Reynolds

committed the murder while he was engaged in or was an accomplice

in the commission of or an attempt to commit a burglary of a

dwelling (great weight); (3) the murder was committed for the

1 Reynolds also wanted to waive his right to a jury’s penalty

recommendation. The trial court refused to allow the waiver and

Reynolds raised that issue on direct appeal asserting it was an

abuse of discretion. The Florida Supreme Court concluded the court

did not abuse its discretion in requiring a penalty-phase jury

recommendation. Reynolds, 934 So. 2d at 1148.

2 Spencer v. State, 615 So. 2d 688 (Fla. 1993).

6

purpose of avoiding a lawful arrest (great weight); and (4) the

murder was committed in an especially heinous, atrocious, or cruel

fashion (great weight).

As to Christina’s murder, the court’s order states that five

statutory aggravators were proved beyond a reasonable doubt: (1)

Reynolds had previously been convicted of another capital felony

or a felony involving a threat of violence to the person (great

weight); (2) Reynolds committed the murder while he was engaged in

or was an accomplice in the commission of or an attempt to commit

a burglary of a dwelling (great weight); (3) the murder was

committed for the purpose of avoiding a lawful arrest (great

weight); (4) the murder was committed in an especially heinous,

atrocious, or cruel fashion (great weight); and (5) the victim of

the murder was a person less than twelve years of age (great

weight).

The court acknowledged Reynolds’s waiver of the presentation

of mitigating evidence but, nonetheless, the court considered and

weighed any mitigation that it found was established. The court

found that the following nonstatutory mitigating circumstances had

been established and were applicable to both the murders of Robin

and Christina: (1) that Reynolds was gainfully employed at the

time of the crimes (little weight); (2) that Reynolds manifested

appropriate courtroom behavior throughout the proceedings (little

weight); (3) that Reynolds cooperated with law enforcement (little

weight); and (4) that Reynolds had a difficult childhood (little

weight). Reynolds, 934 So. 2d at 1138-39. See also Resp. Apx. A -

Amended Sentencing Order dated September 19, 2003.

The Florida Supreme Court affirmed Reynolds’s convictions and

sentences in 2006, and this Court denied certiorari review on

January 8, 2007. Reynolds v. Florida, 549 U.S. 1122 (2007).

Reynolds original postconviction motion was denied after an

evidentiary hearing and the Florida Supreme Court affirmed the

denial of relief. Reynolds v. State, 99 So. 3d 459 (Fla. 2012).

Reynolds’s Post-Hurst Successive Postconviction Motion:

After the Florida Supreme Court issued its decision in Hurst

v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161

(2017) Reynolds filed a successive postconviction motion, which

was denied. The Florida Supreme Court affirmed the denial of

relief. Reynolds v. State, So. 3d ___, 2018 WL1633075, 43 Fla.

L. Weekly S163 (April 5, 2018).

The Florida Supreme Court found that, pursuant to its

retroactivity analysis in Mosley v. State, 209 So. 3d 1248 (Fla.

2016), cert. denied, 138 S. Ct. 41 (2017), Hurst v. Florida, 136

S. Ct. 616 (2016), and Hurst v. State applied retroactively to

Reynolds’s conviction, which became final in 2007. Even so, the

court proceeded to conduct a harmless error analysis. As a

preliminary step in its harmless error analysis, the court noted

that Reynolds’s dual death sentences were premised on unanimous

jury recommendations. The court stated, however, that “a unanimous

recommendation is not sufficient alone” to find harmless error.

Instead, for a Hurst error to be deemed harmless, a review of the

record must reveal that there is no reasonable possibility that

the error affected the sentence.

The record in Reynolds’s case revealed that his jury was

instructed that it was the jury’s duty to “render to the court an

advisory sentence based upon your determination as to whether

sufficient aggravating circumstances exist to justify the

imposition of the death penalty and whether sufficient mitigating

circumstances exist to outweigh any aggravating circumstances

found to exist.” Reynolds, 2018 WL 1633075 *3. Even though the

jury was instructed that its recommendation did not need to be

unanimous, it returned two unanimous death recommendations.

The Florida Supreme Court also evaluated the aggravating and

mitigating circumstances. Reynolds knowingly and voluntarily

waived any jury factfinding as to mitigation when he waived his

right to present mitigation to the jury. Nonetheless, the trial

court considered limited mitigation in its sentencing order. The

Florida Supreme Court concluded that the aggravating factors in

this case outweighed the mitigating circumstances noting that

“[t]he ‘egregious facts of this case’ firmly buttresses the

conclusion that the Hurst error was harmless beyond a reasonable

doubt.” Id. at *5 quoting Davis v. State, 207 So. 3d 142, 175 (Fla.

2016).

The Florida Supreme Court then engaged in a lengthy discussion

of what it termed Reynolds’s “Hurst-based Caldwell claim.”

Ultimately, the court concluded that neither Ring v. Arizona, 536

U.S. 584 (2002) nor Hurst “provides a bases for Caldwell challenges

to the standard jury instruction given... between 2002 and 2016”

because any such challenge could not withstand this Court’s holding

in Romano v. Oklahoma, 512 U.S. 1 (1994). Reynolds, 2018 WL 1633075

*10. The court recognized that 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.” Id. A contrary

holding would produce an absurd result, according to the court,

because invalidating a conviction based on what was at the time an

accurate jury instruction would allow Caldwell claims to swallow

whole Hurst partial retroactivity. Accepting Reynolds’s argument

would, in effect, add a fourth prong to the state’s retroactivity

standard in Witt v. State, 387 So 2d 922 (Fla. 1980). That is, it

would require a consideration of whether a jury instruction

10

accurately predicted a change in the law. Id. at *12.

The Florida Supreme Court also stated that Reynolds

misinterpreted its Eighth Amendment holding in Hurst v. State.

Reynolds’s argument, as condensed by the court, was that because

the Florida Supreme Court held that the Eighth Amendment required

unanimous jury penalty recommendations, which Reynolds’s jury was

not told, his jury did not appreciate the significance of its

responsibility. The court held that Reynolds misapplied it Eighth

Amendment discussion in Hurst v. State noting that although

Caldwell claims are related to the Highth Amendment issue discussed

in Hurst, they are not the same. The court summed up Reynolds’s

argument and its rejection of it this way: “as the argument goes,

even pre-Ring juries were being misled as to their responsibility

in sentencing notwithstanding the fact that such a responsibility

did not exist then and does not exist retroactively. This is the

exact unwieldiness of Caldwell that Romano averts. Either juries

were being misled or they were not. We conclude that they were

not.” Id. at * 12,

After the Florida Supreme Court affirmed the denial of his

successive postconviction motion, Reynolds filed the instant

petition and this is the State’s brief in opposition.

11

REASONS FOR DENYING THE WRIT

THERE IS NO BASIS FOR CERTIORARI REVIEW OF THE FLORIDA

SUPREME COURT’S HARMLESS ERROR DECISION BECAUSE THERE IS

NO CONFLICT BETWEEN STATE COURTS OF LAST RESORT OR UNITED

STATES COURTS OF APPEAL NOR DOES THE CASE PRESENT AN

IMPORTANT UNSETTLED QUESTIONS OF FEDERAL LAW.

As stated in Rule 10 of the Rules of the Supreme Court of the

United States certiorari review “will be granted only for

compelling reasons.” Additionally, consideration of a decision by

a state court of last resort should involve an “important question

of federal law that has not been, but should be, resolved by this

Court” or should involve cases that decide a federal question in

a way that conflicts with other state high courts or federal courts

of appeal. Cases that do not divide the federal or state courts or

that do not present important, unsettled questions of federal law

usually do not merit certiorari review. Rockford Life Insurance

Co. v. Illinois Dept. of Revenue, 482 U.S. 182, 184, n. 3 (1987);

Braxton v. United States, 500 U.S. 344, 348 (1991).

Much of the Florida Supreme Court’s plurality decision is

dependent on the interplay of state-law based retroactivity of

Hurst v. Florida and Hurst v. State and this Court’s decision in

Caldwell. This Court has never held that Hurst v. Florida, which

is based nearly entirely on the Sixth Amendment, is retroactive.

Indeed, this Court has already stated that neither Ring nor

Apprendi v. New Jersey, 530 U.S. 466 (2000), which are precursors

12

of Hurst, are retroactive. Schriro v. Summerlin, 542 U.S. 348

(2004); See also Blakely v. Washington, 542 U.S. 296, 323 (2004)

(stating “Ring (and a fortiori Apprendi) does not apply

retroactively ... .”).

Reynolds’s case is presented to this Court in a postconviction

posture. Hurst is applicable to Reynolds through an expansive state

law test for retroactivity, providing retroactive application to

the date this Court decided Ring in 2002. As Ring, and by extension

Hurst, is not retroactive under federal law, Florida has

implemented a test that provides relief to a broader class of

individuals applying Witt v. State, 387 So. 2d 922, 926 (Fla.

1980) .3 This Court would first have to find Hurst retroactive

under federal law, overruling Schriro v. Summerlin, before

reaching the underlying question of harmlessness. As such, this

case is an inappropriate vehicle for certiorari.

Similarly, pursuant to this Court’s jurisprudence, there can

be no federally based “Hurst-induced Caldwell claims.” The fact

that a state court has held, as a matter of state law, that a

3 Federal courts have had little trouble determining that Hurst,

like Ring, is not retroactive at all under Teague v. Lane, 489

U.S. 288 (1989). See Lambrix v. Sec’y, Fla. Dep’t of Corr., 851

F.3d 1158, 1165 n.2 (llth 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).

13

decision of this Court and a later related state supreme court

decision are partially retroactive,’ does not provide a basis for

this Court to address tangentially related constitutional claims.

This Court has repeatedly recognized that where a state court

judgment rests on adequate and independent state law grounds, the

Court’s jurisdiction fails. Fox Film Corp. v. Muller, 296 U.S.

207, 210 (1935); Michigan v. Long, 463 U.S. 1032, 1038 (1983).

Florida v. Powell, 559 U.S. 50, 57 (2010) (stating that if a state

court’s decision is based on separate state law, this Court “of

course, will not undertake to review the decision.”)

Nonetheless, Reynolds claims that the Florida Supreme Court’s

decision violates the federal constitution because it rejects his

argument that the Eighth Amendment and this Court’s Caldwell

decision require not a consideration of “whether his jury was

properly instructed at the time of his capital trial, but instead,

whether today the State of Florida can treat those advisory

recommendations as mandatory and binding.” Reynolds further

asserts that a jury recommendation of death reached after the jury

was properly instructed as to the applicable state law constitutes

structural error because of subsequent changes to the law.

The assertions themselves, in addition to being legally

4 This Court has held that, generally, a state court’s

retroactivity determinations are matters of state law, not federal

constitutional law. Danforth v. Minnesota, 552 U.S. 264 (2008).

14

incorrect, reveal why this Court should not grant certiorari

review. First, nothing in the Caldwell decision or its progeny

stands for the proposition that the Eighth Amendment is violated

when a jury is properly instructed at the time of trial, but the

law subsequently changes. In fact, that is the opposite of what

Caldwell stands for. As will be discussed in further detail, this

Court has made clear that Caldwell violations occur only when

remarks to the jury improperly describe the role assigned to the

jury by local law and does so in a way that undermines the jury’s

sense of responsibility. See Romano v. Oklahoma, 512 U.S. 1, 9

(1994). Therefore, the Florida Supreme Court’s decision is not in

conflict with this Court’s Caldwell decision; rather, it is in

conformity with it.

Further, Reynolds’s structural error argument relies on

various faulty premises, including: 1) that his jury was

affirmatively misled; 2) that the Sixth and Eighth Amendments

require unanimous jury findings regarding not only the existence

of aggravating circumstances, but also as to the sufficiency of

the aggravating circumstances and their weight relative to

mitigating factors, if any; and 3) that judicial fact-finding

cannot be reviewed for harmless error.

Again, Reynolds is wrong on all counts. As already noted,

Reynolds’s jury was properly instructed. Additionally, this Court

15

has never held that the constitution requires a jury to determine

the relative weight of aggravating circumstances and mitigating

factors, let alone that it must do so unanimously. In fact, this

Court has expressly stated that such findings by a jury are not

necessary. See Kansas v. Carr, 136 S. Ct. 633, 642 (2016) (noting,

“the ultimate question whether mitigating circumstances outweigh

aggravating circumstances is mostly a question of mercy .. .”)°

Similarly, this Court has stated that jury sentencing is not a

prerequisite to the constitutionality of a death sentence. See

Proffitt v. Florida, 428 U.S. 242, 252 (1976) (stating, this Court

“has never suggested that jury sentencing is constitutionally

required.”). Furthermore, this Court has repeatedly stated that

the failure to submit a sentencing factor or even an element of an

offense to a jury can be reviewed for harmless error. Neder v.

° State v. Mason, 2018 WL 1872180, *5, 6 (Oh. Apr. 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

principal offense and any aggravating circumstances” and that

“weighing is not a factfinding process subject to the Sixth

Amendment.”) (string citations omitted); United States v. Sampson,

486 F.3d 13, 32 (lst 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); 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 be undertaken by a

jury”).

16

United States, 527 U.S. 1, 18-19 (1999) (concluding that the lack

of a jury determination on an element of the offense is subject to

harmless-error analysis.) Therefore, the Florida Supreme Court’s

decision is not in conflict with any decision by this Court

regarding the role of a capital penalty phase jury nor does it

present an important question of unsettled federal law.

ISSUE I

REYNOLDS’S JURY WAS NOT MISLED ABOUT ITS SENTENCING ROLE

NOR WAS ITS RESPONSIBILITY IN DETERMINING AN APPROPRIATE

SENTENCE MINIMIZED IN VIOLATION OF THE EIGHTH AMENDMENT

BY A JURY INSTRUCTION THAT ACCURATELY REFLECTED FLORIDA

LAW AND SPECIFICALLY INFORMED THE JURY THAT THEIR

RECOMMENDATION WOULD BE GIVEN GREAT WEIGHT BY THE

SENTENCING JUDGE.

What Reynolds’s jury was told about its role in determining his

sentence:

In 2003, when Reynolds was sentenced, Florida’s death penalty

statute required the penalty-phase jury to advise the court as to

an appropriate sentence based on whether sufficient aggravating

factors existed; whether sufficient mitigating circumstances

existed that outweigh the aggravating circumstances found to

exist; and, based on these considerations, whether a defendant

should be sentenced to life imprisonment or death. § 921.141 (2),

Fla. Stat. (2003). Notwithstanding the jury’s recommendation, the

court independently found and weighed the aggravating and

mitigating circumstances and, if imposing a death sentence, issued

a written order detailing the aggravating and mitigating

17

circumstances and the weight assigned to each. § 921.141(3), Fla.

Stat. (2003).

Even so, recognizing the jury’s important role in the

proceedings, Florida courts instructed penalty-phase juries,

including Reynolds’s, that the law required the court to give the

jury’s recommendation great weight. Similarly, Reynolds’s jury was

instructed that the court could “reject its recommendation only if

the facts are so clear and convincing that virtually no reasonable

person could differ.” Tedder v. State, 322 So. 2d 908, 910 (Fla.

1975). And, to reinforce the significance of the jury’s

undertaking, Reynolds’s jury was told that “[t]he fact that the

determination of whether you recommend a sentence of death or life

in this case can be reached by a single ballot should not influence

you to act hastily or without due regard to the gravity of these

proceedings. Before you ballot you should carefully weigh, sift

and consider the evidence, and all of it, realizing that a human

life is at stake and bring to bear your best judgment in reaching

your advisory sentence.”

Hurst v. Florida and Hurst v. State:

In 2016, thirteen years after Reynolds’s jury unanimously

recommended two death sentences, this Court held that Florida’s

sentencing scheme violated the Sixth Amendment because it

permitted the judge alone to find the existence of an aggravating

18

circumstance. Hurst, 136 S. Ct. at 624. In doing so, this Court

overruled its previous decisions in Spaziano v. Florida, 468 U.S.

447 (1984) and Hildwin v. Florida, 490 U.S. 638 (1989) “to the

extent they allow a sentencing judge to find an aggravating

circumstance, independent of a jury’s factfinding, that is

necessary for the imposition of the death penalty.” Id. This Court

remanded Hurst to the Florida Supreme Court for a harmless error

analysis.

On remand, the Florida Supreme Court expanded this Court’s

Hurst decision by additionally requiring that “before the trial

judge may consider imposing a sentence of death, the jury in a

capital case must unanimously and expressly find all 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 40, 57 (Fla. 2016). The state

court recognized that this Court has never held that the Eighth

Amendment requires jury unanimity as to its ultimate sentencing

recommendation. Nonetheless, the Florida Supreme Court found that

sentencing recommendation unanimity would serve the Eighth

Amendment’s concern of “narrow[ing] the class of murderers subject

to capital punishment.” Id. at 60.

19

The Florida Supreme Court’s decision does not conflict with this

Court’s Sixth Amendment jurisprudence:

In Hurst v. Florida, this Court’s holding was clear.

“Florida's sentencing scheme, which required the judge alone to

find the existence of an aggravating circumstance” violated the

Sixth Amendment’s right to a jury trial. Hurst v. Florida, 136 S.

Ct. at 624 (emphasis added).

There is no Hurst v. Florida error, as defined by this Court,

in Reynolds’s case. Significantly, the aggravators in this case

include a prior violent felony and contemporaneous murder

convictions. In addition to the contemporaneous murder

convictions, Reynolds was found guilty of armed burglary in this

case. Therefore, as to the murder of Robin Razor, two of the four

aggravating factors that made him eligible for the death penalty

were found beyond a reasonable doubt by a jury. Likewise, as to

the murder of Christina, two of ‘the aggravating factors are

supported by a specific jury verdict. One aggravator, although not

subject to a specific jury finding, is undisputed - she was under

the age of 12 at the time of the murder. Accordingly, Reynolds’s

death sentence satisfies the requirements of Apprendi, Ring, and

Hurst v. Florida. See also Jenkins v. Hutton, 137 S. Ct. 1769,

1772 (2017) (noting Hutton’s guilt-phase jury necessarily found

the existence of aggravating factors.) Waldrop v. Comm’r, Alabama

Dep’t of Corr., 711 Fed. Appx. 900 (11th Cir. 2017) (unpublished)

20

(In rejecting a Hurst claim the court explained: “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.”)

Furthermore, this Court has never overturned, and has

repeatedly reaffirmed, Apprendi’s recidivism exception, relying on

the holding of Almendarez-Torres v. United States, 523 U.S. 224

(1998). There, this Court stated that a prior conviction does not

require additional fact-finding by a subsequent jury. See James v.

United States, 550 U.S. 192, 214 n.8 (2007) (noting that prior

convictions need not be treated as an element of the offense for

Sixth Amendment purposes.); See also Cunningham v. California, 549

U.S. 270 (2007) (noting Apprendi’s recidivism exception); Jones v.

United States, 526 U.S. 227, 249 (1999) (explaining that “a prior

conviction must itself have been established through procedures

satisfying the fair notice, reasonable doubt, and jury trial

guarantees”).

The aggravating factors in Reynolds’s case include a prior

violent felony conviction, a contemporaneous armed burglary

conviction, and two contemporaneous murder convictions.®

6 Contrary to Reynolds’s assertion, we are hardly “left to guess

and speculate” as to the jury’s findings of aggravating factors.

(Pet. p. 26). Two of the aggravating factors are established either

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