Opposition Brief — Ray Lamar Johnston, Petitioner v. Florida

DOCKET NO. 18-5793

IN THE SUPREME COURT OF THE UNITED STATES

RAY LAMAR JOHNSTON,

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

TIMOTHY A. FREELAND

Senior 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

timothy . freeland@myfloridalegal .com

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

Ray Lamar Johnston abducted his final victim, Leanne

Coryell, from the apartment complex where she lived and took her

to the grounds of a nearby Catholic church. There Johnston

forced her to disrobe before he beat, raped, and ultimately

strangled her until she died; strands of grass were found in the

fingers of her still clenched left hand. Nor was this Johnston’s

first offense; documentation of his life-long predilection for

forcible control, humiliation and sexual violence towards women

was introduced at his trial. These included past convictions for

rape, burglary with assault, and two counts of robbery, all

committed while Johnston was living in Georgia and Alabama. Once

released from prison in Georgia, Johnston moved to Florida,

where he committed two armed kidnappings involving different

female victims that the sentencing judge characterized as

“chillingly similar” to Leanne Coryell’s final hours.

Johnston’s sentencing jury was advised, in accordance with

the correct law in Florida at the time, that they were required

to determine beyond a reasonable doubt the existence of the

necessary aggravating factors before deciding whether or not to

recommend a death sentence. They were also instructed, again in

accordance with Florida law, that the court would give their

recommendation great weight in determining what sentence to

impose. The court ultimately accepted the jury’s unanimous

recommendation and sentenced Johnston to death, a determination

that was affirmed on direct appeal.

Following this Court’s ruling in Hurst v. Florida,! Johnston

filed a postconviction motion. In addition to asserting that his

sentencing procedure suffered from the same infirmities

identified by this Court in Hurst, he also claimed that his jury

should not have been told that their sentencing decision was

merely a recommendation. In Johnston’s view, his penalty phase

jury’s instructions violated Caldwell v. Mississippi.? In support

of this claim, Johnston sought to employ an “expert”

sociologist, whose team of laypeople combed the record for any

language that might possibly support a finding that the jury’s

role was diminished. The postconviction court, after noting that

the only “expertise” employed was the ability to read English,

excluded Johnston’s proposed expert and ultimately entered an

order denying relief as to all claims.

On appeal, the Florida Supreme Court agreed that no Hurst

or Caldwell violations had occurred and also affirmed the lower

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

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

ii

court’s decision to exclude the defense expert. The Florida

Supreme Court’s opinion gives rise to the following questions:

1. Whether this Court should grant review of the

Florida Supreme Court’s determination that Johnston’s

jury was not misled nor was its responsibility

minimized as discussed in this Court’s decision in

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

instruction that accurately reflected Florida law at

the time of sentencing?

2. Whether this Court should accept review of

Johnston’s claim that his right to due process was

violated by the postconviction court’s decision to

exclude expert testimony, where the “expertise”

involved the ability to read English?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW 2... . cc cece ccc ee er eee eee eee e eee i

TABLE OF CONTENTS 2. ee cc ee eee eee ee ee eee eens iv

TABLE OF CITATIONS .. 2c. ce ccc ccc cc tee ee eee tee eee eee eee Vv

PARTIES TO THE PROCEEDINGS 2.2... cece ee we ew ee eee et ewe 1

CITATION TO OPINION BELOW ...... 2.0... cc eee ee te tt ee ee eet eee 1

STATEMENT OF JURISDICTION 2.2... ccc ccc cc cee ee eee eee eee eee eee eee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............... 1

STATEMENT OF THE CASE 2... ce we cee cc wee weet eee eter ee ee eee eees 2

REASONS FOR DENYING THE WRIT 2.2... ccc cc we ecw tee eww eee eee 6

THIS COURT SHOULD DECLINE TO GRANT REVIEW OF THE

FLORIDA SUPREME COURT’S FINDING THAT JOHNSTON’ S

PENALTY PHASE JURY INSTRUCTIONS, WHICH ACCURATELY

REFLECTED FLORIDA LAW AT THE TIME OF SENTENCING, DID

NOT VIOLATE CALDWELL V. MISSISSIPPL. «1... cc ccc ewe eee eee ee 6

CONCLUSION 2. cc www ccc eee eee wee ene tcc we rere eee etree eee eee ens 26

CERTIFICATE OF SERVICE 2... ccc cece ee ee te we wees 27

APPENDIX A

APPENDIX B

iv

TABLE OF CITATIONS

Cases

Abdool v. State,

220 So. 3d 1106 (Fla. 2017) .2 eee cc ee te ee 19

Andres v. State,

43 Fla. L. Weekly S389a (Fla. September 20, 2018) ........... 20

Banks v. State,

219 So. 3d 32 (Fla. 2017) co.cc wwe tw ts 19

Bartlett v. Stephenson,

535 U.S. 1301 (2002) Lecce ccc cc cee ee ee ee eee eee eens 24

Belcher v. Sec'y, Fla. Dept. of Corr.,

427 Fed. Appx. 692 (11th Cir. 2011) ... eee eee eee ee ees 18

Blakely v. Washington,

542 U.S. 296 (2004) .........22206- a ee eee eee ee eee eee ewes 9

Bowling v. Parker,

344 F.3d 487 (6th Cir. 2003) Lecce ccc cc wee ee ee eee eee eee eee 18

Braxton v. United States,

500 U.S. 344 (1991) cece ccc ccc ee eee ee tet ees 23

Bunting v. Mellen,

541 U.S. 1019 (2004) cece ee ccc cc ccc ce cee eee nes 23

Caldwell v. Mississippi,

472 U.S. 320 (1985) cece ween ccc cern nce c ccna c cece cccsees passim

City and County of San Francisco, California v. Sheehan,

135 S. Ct. 1765 (2015) ce... eee ec ce eee ee ee ees 23

Danforth v. Minnesota,

552 U.S. 264 (2008) .. ec et tem ew et wet eas 9

Darden v. Wainwright,

477 U.S. 168 (1986) Loc ccc ccc ccc ccc ccc ee eee ee eee eee ween nes 16

Davis v. Singletary,

119 F.3d 1471 (11th Cir. 1997) cove cece ce eee wee ee cee eee eee 18

Davis v. State,

207 So. 3d 142 (Fla. 2016) wi. eee ce ee ee ees 20

Deviney v. State,

213 So. 3d 794 (Fla. 2017) cece ec cc ec e 19

Dugger v. Adams,

489 U.S. 410 (1989) Lecce cc ccc cc ee eee eee ee ene eee 10

Evans v. Sec’y, Fla. Dept. Corr.,

699 F.3d 1249 (11th Cir. 2012) Loic ee ee 16

Everett v. State,

43 Fla. L. Weekly S250 (Fla. May 24, 2018) ........ cc cee ee eee 19

Fleenor v. Anderson,

171 F.3d 1096 (7th Cir. 1999) Lc ee 18

Florida v. Powell,

559 U.S. 50 (2010) ... eee cee ew ee cee ee ee eee wees SS)

Fox Film Corp. v. Muller,

296 U.S. 207 (1935) occ ccc ccc cc ecw ee ec cee eee eee ene cece ees 9

Frye v. United States,

293 F. 1013 (D.C. Cir. 1923 Lee ccc ew ees 24

Harris v. Alabama,

513 U.S. 504 (1995) Lee eee eee cc cc ee ee etc cece eee ee 11

Hurst v. Florida,

136 S. Ct. G16 (2016) oc cece ee eee ee cette e eee passim

Hurst v. State,

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

cert. denied, 137 S. Ct. 2161 (2017) ............ 10, 12, 13, 19

Johnson v. State,

205 So. 3d 1285 (Fla. 2016) wo... ee cc ee ee tee ee te tee 19

Johnston v. Singletary,

162 F.3d 630 (11th Cir. 1998) cL. eee ee ec ce eee ee es 18

Johnston v. State,

246 So. 3d 266 (Fla. 2018) .. ccc ccc ccc ccc cee wwe eee 1, 5

Vi

Johnston v. State,

B41 So. 2d 349 (Fla. 2002) Loi ccc cw we ce 3, 4

Kansas v. Carr,

136 S. Ct. 633 (2016) circ wc ccc cece nce ee ee ee ete eee eee eee 13

Kirkman v. State,

233 So. 3d 456 (Fla. 2018) 2... ew ew we ew ee es 19

Lambrix v. Sec’y, Fla. Dept. of Corr.,

851 F.3d 1158 (11th Cir. 2017) we. eee eee ee ee eee te tees 8

Lorraine v. Coyle,

291 F.3d 416 (6th Cir. 2002) ... eee eee ee 18

Michigan v. Long,

463 U.S. 1032 (1983) .. cece ccc ccc ce ee eee eee eect eens 9

Neder v. United States,

527 U.S. 1 (1999) cece ccc cee ec cc ee te ce ee ee eee tee ee ees 14

Pagan v. State,

235 So. 3d 317 (Fla. 2018) ... eee ee cc cc cee ee eens 19

Proffitt v. Florida,

428 U.S. 242 (1976) LL. ccc ccc cc te ww wee eee eee eee c eee 14

Reynolds v. State,

43 Fla. L. Weekly S163 (Fla. April 5, 2018) .......... 7, 19, 21

Rice v. Sioux City Memorial Park Cemetery, Inc.,

349 U.S. 7O (1955) wo cece cece cc ee eee eee ee ee eee eee eee tee 24

Ring v. Arizona,

536 U.S. 584 (2002) .. eee ee eee ce ee eee ee ete 8, 11, 16

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

482 U.S. 182 (1987) we ccc ccc cee eee eee cee ee ee eee eee eee tenes 24

Romano v. Oklahoma,

512 U.S. 1 (1994) Loc ce ce ce ee ees 7, 12, 17

Schriro v. Summerlin,

542 U.S. 348 (2004) .. cee cece ee ete eee nee 9

State v. Gales,

658 N.W.2d G04 (Neb. 2003) 2... eee cc ce tc ww we te tec ees 14

vil

State v. Mason,

2018 WL 1872180 (Oh. Apr. 18, 2018) wee eee ec cee ew ee es 14

Teague v. Lane,

A489 U.S. 288 (1989) Lovee ccc cece cee ee eee eee eee eee eens 8

Texas v. Mead,

465 U.S. 1041 (1984) Lol cc cee ew ee eee ee 24

Tolan v. Cotton,

134 S. Ct. 1861 (2014) occ ec ee ec cc ee eect eee ee es 22

United States v. Johnston,

268 U.S. 220 (1925) Loc ccc ccc ce ee ee ee eee cee ee eee nes 24

United States v. Purkey,

428 F.3d 738 (8th Cir. 2005) ... cee ec eee eee eee 14

United States v. Sampson,

486 F.3d 13 (1st Cir. 2007) 2... eee ec eee eee 14

Wilson v. Sirmons,

536 F.3d 1064 (10th Cir. 2008) J... ee ew te wes 18

Witt v. State,

387 So. 2d 922 (Fla. 1980) Li... ce ee ce ee tt eee ttc ee ee 8

Other Authorities

§ 90.702, Fla. Stat. co.cc ce ccc cc ee cee ee ee ee eee 25

§ 921.141(2) (c), Fla. Stat. (2017) cc. ccc cece cee cee ee eee eee 10

§ 921.141(2) (c), Fla. Stat. (2018) ......... eee ee eee eee eee 16

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

Sup. Ct. Re. 10 Loew ccc ec ccc ccc cee ee eee ee weer etc e eee eens 22, 23

viii

PARTIES TO THE PROCEEDINGS

The following were parties in the proceedings below:

1) Ray Lamar Johnston, Petitioner in this Court, was the

appellant below.

2) The State of Florida, Respondent in this Court, was

the appellee below.

CITATION TO OPINION BELOW

The published opinion of the Florida Supreme Court is

reported at Johnston v. State, 246 So. 3d 266 (Fla. 2018).

STATEMENT OF JURISDICTION

The mandate of the Florida Supreme Court was entered on

July 19, 2018. (Resp. App. A). 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.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner’s statement regarding the

applicable constitutional and statutory provisions involved.

STATEMENT OF THE CASE

Petitioner, Ray Lamar Johnston, was convicted of firstdegree murder for the murder of Leanne Coryell. The following

facts are drawn from the Florida Supreme Court’s opinion

affirming Johnston’s convictions on direct appeal:

Leanne Coryell, a clinical orthodontic assistant for

Dr. Gregory Dyer, went to work at 1 p.m. on August 19,

1997. At approximately 8:15 p.m., Dr. Dyer went home,

leaving Melissa Hill and Coryell to close the office.

Coryell clocked out at 8:38 and, after some difficulty

setting the office's alarm, left within the next ten

minutes. Coryell picked up groceries at Publix Super

Market where the store's surveillance cameras

documented her checking out at 9:23. She was not seen

alive again.

Ray Johnston, Gary Senchak, and Margaret Vasquez

shared a three-bedroom apartment at the Landings

Apartment Complex-the same apartment complex in which

Coryell lived. On the evening that Coryell was

murdered, Johnston argued with his roommates over the

utility bills and left the apartment between 8:30 and

9:30 p.m. Vasquez noted that around 9:45, Johnston's

car was still in the parking lot although Johnston had

not returned. Sometime after 10:00, Johnston came back

to the apartment and threw $60 at Senchak, telling

him, “That's all you're getting from me, you son-of-abitch.”

Coryell's body was discovered around 10:30 p.m. on the

evening of August 19 by John Debnar, who was playing

catch with his dogs in a field close to St. Timothy's

Church. While there, he noticed that a car with an

out-of-place headlight entered St. Timothy's property

and stopped briefly beside an empty black car. When

Debnar walked his dogs home, one of his dogs stopped

at a pond on the church's property, causing Debnar to

notice the body of a woman floating in the water.

Hillsborough County sheriff's officers arrived at St.

Timothy's Church shortly before 11:30 p.m. and found

2

Coryell's body lying face down in the pond, completely

nude. Her clothes were found on a nearby embankment.

Dental stone impressions were taken of some _ shoe

prints that were in the general area where the

clothing was found. Coryell's empty black Infiniti was

in the church's parking lot with the keys in the

ignition and the engine still warm. Some, but not all,

of her groceries were sitting in the back seat.

Although the police were unable to lift any prints

from the interior of the car, they did lift a

fingerprint matching Johnston's from the exterior.

Dr. Russell Vega performed the autopsy and opined that

the victim died sometime after 9 p.m. Based on the

extensive bruising of the external and internal neck

tissues, Dr. Vega concluded that the victim died from

manual strangulation, as opposed to the use of a

ligature. Dr. Vega also observed a laceration on the

left side of the victim's lower lip and a laceration

on her chin, both of which were caused by blunt

impact. There were vertical scrapes on the victim's

back which suggested that she was dragged to the pond.

There were two unusually shaped bruises on Coryell's

buttocks which were similar to the metal appliques on

her belt, causing Dr. Vega to believe that she was hit

with her own belt while still alive. Finally, the

victim suffered both internal and external injuries to

her vaginal area, injuries which were consistent with

vaginal penetration. Her hand still clutched strands

of grass.

Johnston v. State, 841 So. 2d 349, 351-52 (Fla. 2002).

The prosecution established four aggravators during the penalty

phase: (1) the defendant was previously convicted of violent

felonies; (2) the crime was committed while Johnston was engaged

in the commission of sexual battery and a kidnapping; (3) it was

committed for pecuniary gain; and (4) it was especially heinous,

atrocious, or cruel. The trial court found one statutory

mitigator, © that Johnston's capacity to appreciate the

criminality of his conduct or to conform his conduct to the

requirement of law was substantially impaired, along with

numerous non-statutory mitigators. Johnston v. State, 841 So. 2d

349, 355 (Fla. 2002).

In 2017, following this Court’s decision in Hurst v.

Florida, Johnston filed a successive postconviction motion

alleging not only entitlement to relief pursuant to Hurst, but

also that the jury instructions improperly diminished his

sentencing jury’s role in violation of Caldwell v. Mississippi.

In support of his argument, Johnston sought to introduce the

report and testimony of sociologist Dr. Harvey Moore, whose team

had examined the trial record and, based on his understanding of

the requirements of Caldwell, assessed the number of times the

record contained language that might be interpreted as a

Caldwell-type error. The postconviction court, after noting that

Dr. Moore’s content-analysis approach invaded the province of

the Court (whose duty it is to read and interpret the record)

and required no greater expertise than the ability to read and

understand English, declined to accept Dr. Moore’s assistance

and granted the State’s motion to strike him as a defense

witness. The postconviction court’s order denying relief as to

all claims was affirmed on review by the Florida Supreme Court.

Johnston v. State, 246 So. 3d 266 (Fla. 2018). Johnston now

seeks certiorari review of the Florida Supreme Court’s decision.

REASONS FOR DENYING THE WRIT

THIS COURT SHOULD DECLINE TO GRANT REVIEW OF THE

FLORIDA SUPREME COURT’S FINDING THAT JOHNSTON’S

PENALTY PHASE JURY INSTRUCTIONS, WHICH ACCURATELY

REFLECTED FLORIDA LAW AT THE TIME OF SENTENCING, DID

NOT VIOLATE CALDWELL V. MISSISSIPPI.

Following his conviction for first-degree premeditated

murder, Johnston’s penalty phase jury was instructed, without

objection from the defense? and consistent with then-existing

Florida law, that its role was to advise the court as to an

appropriate sentence. Johnston’s jury was told to assess whether

sufficient aggravating factors existed, whether any mitigating

circumstances outweighed the aggravators, and that their

sentencing recommendation would be given great weight by the

court in deciding what sentence to impose. This was the law in

effect at the time of Johnston’s sentence, and it is significant

here that the parties are in complete agreement regarding this

important fact.

Johnston’s primary argument before this Court is his claim,

raised for the first time in a state postconviction motion filed

over a dozen years after his conviction became final, that his

penalty phase proceedings violated this Court’s decision in

3. Respondent’s Appendix B, p. 1815. Petitioner’s failure to

preserve this claim was raised in the State’s response to

Johnston’s postconviction motion. Johnston affirmatively told

the trial judge that he had no objections to the court’s penalty

phase jury instructions as given.

6

Caldwell v. Mississippi, 472 U.S. 320 (1985). Setting aside the

clear procedural default caused by Johnston’s failure to raise

this claim at the time of trial, it is nevertheless clear that

no such violation occurred. Johnston’s jury was not misled

regarding their role in the sentencing process, they were

accurately instructed in conformity with contemporaneous Florida

law and, perhaps most significant of all, they were told that

the trial judge is rarely permitted to reject their findings,

and that their sentencing recommendation would be given great

weight. Under these circumstances, Johnston cannot establish

that a Caldwell violation occurred, which is exactly what the

Florida courts concluded. See Romano v. Oklahoma, 512 U.S. 1, 9

(1994) and Reynolds v. State, 43 Fla. L. Weekly S163, 169 (Fla.

April 5, 2018) (explaining that under Romano, the Florida

standard jury instruction at issue “cannot be invalidated

retroactively prior to Ring simply because a trial court failed

to employ its divining rod successfully to guess at completely

unforeseen changes in the law by later appellate courts”).

Federal versus State retroactivity standards

This case is an inappropriate vehicle for certiorari for

several reasons. First of all, as this is a postconviction case,

this Court would have to address retroactivity before even

reaching the underlying jury instruction issue. Before this

Court could hold that Hurst v. Florida is retroactive, it would

necessarily have to overturn extensive precedent establishing

that Ring? is not. Indeed, Federal courts have had little trouble

détermining that Hurst, like Ring, is not retroactive under the

test announced in Teague v. Lane, 489 U.S. 288 (1989).°

Hurst v. Florida is only applicable to Petitioner through

Florida’s more expansive state law test for retroactivity. And

Florida has determined that Hurst v. Florida (along with those

state law cases that followed) applies retroactively to the date

this Court decided Ring in 2002. Federal courts, however, have

declined to find that Ring is retroactive under federal law, and

have, as noted above, similarly declined to grant retroactivity

to Hurst v. Florida.

Florida’s retroactivity test, announced in Witt v. State,

387 So. 2d 922, 926 (Fla. 1980), provides relief to a broader

class of individuals than does Teague, and Florida has, as a

matter of state law, granted limited retroactivity to this

Court’s decision in Hurst v. Florida. Consequently, in granting

4 Ring v. Arizona, 536 U.S. 584 (2002).

5 See Lambrix v. Sec’y, Fla. Dept. 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).

8

certiorari review, this Court would find itself addressing

retroactivity of Hurst v. Florida and the possibility of

overruling Schriro v. Summerlin, 542 U.S. 348 (2004), before

reaching the underlying question of harmlessness. See also

Blakely v. Washington, 542 U.S. 296, 323 (2004) (stating “Ring

(and a fortiori Apprendi) does not apply retroactively

-”).

Therefore, 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 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.”)

6 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).

Johnston’s Caldwell claim

Putting the question of retroactivity aside, Johnston’s

present complaint appears to arise out of the fact that his

penalty phase jury’s determination was merely a recommendation,

and nothing more. His argument improperly conflates this Court’s

decision in Hurst v. Florida, which addressed Sixth Amendment

infirmities in Florida’s previous sentencing procedure, and

Florida’s decision in Hurst v. State. In the latter case, the

Florida Supreme Court went far beyond this Court’s criticism of

Florida’s procedure that authorized the sentencing judge, as

opposed to the jury, to make critical factual findings necessary

to imposing a death sentence under Florida law. The Florida

Supreme Court’s ruling in Hurst v. State, 202 So. 3d 40 (Fla.

2016), cert. denied, 137 S. Ct. 2161 (2017), stands as a matter

of state law, and fails to provide grounds for certiorari

review.

Indeed, Johnston’s criticism aside, a Florida jury’s

decision regarding a death sentence was, and still remains, an

advisory recommendation. See Dugger v. Adams, 489 U.S. 410

(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). What Johnston

10

seeks, even if he fails to say it precisely, is a procedure

where the jury itself imposes the sentence.

Consider the essence of Johnston’s Caldwell claim which,

effectively, condemns any jury instruction that grants the trial

judge discretion to disregard the jury’s sentencing decision.

Johnston’s version of a Caldwell violation would apply in any

case where such discretion is permitted and can only be resolved

by requiring that a jury’s sentencing recommendation be binding

on the trial court, thus effectively shifting all responsibility

for sentencing to the jury. There has never been a federal

mandate requiring jury sentencing, however, and certainly no

decisions impose such a requirement on the states. See Ring v.

Arizona, 536 U.S. 584, 612 (2002) (Scalia, J., concurring)

(“[T]loday’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”). This Court

has never required jury sentencing in a capital case, and such a

holding would require a strained and tortuous reading of the

Constitution, which, after all, provides a right to trial by

jury, not to sentencing by jury.

11

Nonetheless, Johnston claims that the Florida Supreme

Court’s decision violates the federal constitution because it

rejected his argument that the Eighth Amendment and this Court’s

Caldwell decision require what effectively amounts to jury

sentencing. In Johnston’s view, a mere recommendation fails to

meet constitutional muster where the trial judge has any

discretion to accept or reject it. Johnston further asserts that

his jury’s recommendation of death, which was affirmed on direct

appeal and became final in 2003, developed into structural error

when the rules governing sentencing changed following the

Florida Supreme Court’s 2017 decision in Hurst v. State.

Johnston’s argument is fundamentally flawed. First, nothing

in Caldwell mandates relief merely because, after a trial in

which the jury was properly instructed, the law has changed.

Johnston conveniently omits any discussion of the fact that he

failed to preserve his present claim by contemporaneous

objection. Even if preserved, however, 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

12

conformity with it.

Johnston’s claim that the proposed “error” was structural

merely reveals his misapprehension of the law and general

disagreement with the outcome. Consider the following faulty

premises advanced by Johnston: 1) his jury was affirmatively

misled; 2) 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) judicial fact-finding cannot be reviewed for

harmless error.

Johnston is wrong on all counts. As already noted,

Johnston’s jury was properly instructed. Additionally, this

Court has never held (as the Florida Supreme Court did in Hurst

v. State) 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. This

requirement is not mandated by federal law, but was imposed by

the Florida Supreme Court, and his argument erroneously

conflates what the state court requires with this Court’s ruling

in Hurst v. Florida. Significantly, 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

13

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) (this Court “has

never suggested that jury sentencing is constitutionally

required.”). Finally, this Court has expressly found the type of

error Johnston claims to be structural is, instead, subject to

harmless error analysis. Neder v. 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.)

The Florida Supreme Court’s decision does not conflict with

Caldwell

This Court’s decision in Caldwell is straightforward. A

7 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”).

14

capital penalty-phase.jury should not be misled regarding the

role it plays in the sentencing process, and the jury’s

responsibility in determining an appropriate sentence should not

be diminished. A Caldwell error, therefore, has two interrelated

components. First, a jury must be misled by jury instructions,

prosecutor argument, or judicial comments. Second, they must be

misled in a way that diminished their role in the process.

Examination of what took place in Johnston’s penalty phase

demonstrates beyond cavil that no Caldwell violation occurred; a

focused consideration of Johnston’s own arguments supports this

view.

As the state postconviction court found, Johnston’s jury

was properly instructed regarding its role in the sentencing

process according to contemporaneous state law. Interestingly,

Johnston does not contest the State’s position in this regard.

Instead, he insists that a Caldwell violation occurred because

the Florida Supreme Court “treats this unconstitutional

recommendation as binding.” (Petitioner’s Brief, p. 24) Johnston

fails to recognize that Caldwell focuses on the legal accuracy

of the jury instructions and the effect any erroneous

information may have had on its sense of responsibility. A

Caldwell error does not arise out of what an appellate court

does or does not do.

15

Johnston correctly notes that his jury was told that their

recommendation was advisory and that the court was responsible

for sentencing. That was true then and, with regard to a death

recommendation, true now.® Still, Florida juries are hardly led

to believe that their role in the proceedings is insignificant -

even post-Ring, pre-Hurst juries. See Darden v. Wainwright, 477

U.S. 168, 183 n. 15 (1986) (“Caldwell is relevant only to

certain types of comment - those that mislead the jury as to its

role in the sentencing process in a way that allows the jury to

feel less responsible than it should for the sentencing

decision.”).

Johnston’s penalty phase jury was instructed that “fy]our

advisory sentence is entitled by law and will be given great

weight by this court in determining the sentence to impose in

this case. It is only under rare circumstances that this court

could impose a sentence other than what you recommend.”

(Respondent’s Appendix B, p. 1806-1807). And, to reinforce the

Significance of the jury’s undertaking, Johnston’s jury was told

8 Under Florida’s new statute, only life recommendations can be

characterized as “binding.” § 921.141(2)(c), Fla. Stat. (2018).

Even under the previous versions of the statute, a jury’s

finding of no aggravating factors was, for all practical

purposes, binding. Evans v. Sec’y, Fla. Dept. Corr., 699 F.3d

1249, 1256 (llth Cir. 2012) (noting the Florida Supreme Court’s

“stringent application” of the Tedder v. State, 322 So. 2d 908

(Fla. 1975) standard under which the last override of a life

recommendation affirmed on appeal was in 1994).

16

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.” (Respondent’s Appendix B, p. 1812-1813).

Because Johnston’s jury was properly instructed, and

nothing was said to diminish the gravity of the task they were

undertaking, there is no Caldwell error. As such, there is no

basis for this Court to exercise its certiorari jurisdiction

because the Florida Supreme Court is not in conflict with any

decision of this Court and the state court’s decision does not

present a question of important, unsettled federal law.

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

of any federal appellate court or state supreme court

The Eleventh Circuit has consistently rejected Caldwell

challenges to Florida’s jury instructions in capital cases in

the years since Romano. As the Eleventh Circuit has explained,

the infirmity identified in Caldwell is “simply absent” in a

case where “the jury was not affirmatively misled regarding its

f

role in the sentencing process.” Davis v. Singletary, 119 F.3d

17

1471, 1481-82 (11th Cir. 1997) see also Johnston v. Singletary,

162 F.3d 630, 642-44 (11th Cir. 1998); Belcher v. Sec'y, Fla.

Dept. of Corr., 427 Fed. Appx. 692, 695 (11th Cir. 2011).

Other federal circuit courts have also held that the use of

the words “advisory” or “recommendation” does not violate

Caldwell when it accurately reflects state law. Lorraine v.

Coyle, 291 F.3d 416, 446 (6th Cir. 2002); Bowling v. Parker, 344

F.3d 487, 514-15 (6th Cir. 2003); Fleenor v. Anderson, 171 F.3d

1096, 1098-99 (7th Cir. 1999); Wilson v. Sirmons, 536 F.3d 1064,

1121 (10th Cir. 2008).

Johnston cites to no federal circuit court case or state

supreme court case holding to the contrary. There is no conflict

between the Florida Supreme Court’s decision and that of any

federal circuit court of appeals or that of any state supreme

court. Therefore, this Court should deny review of this issue.

Unanimity and Equal Protection Claims

Johnston next complains that the Florida Supreme Court

employed a per se harmless error rule in his case which

considers only whether the jury’s sentencing recommendation was

unanimous, a procedure that, in Johnston’s view, violates the

Equal Protection clause of the Fourteenth Amendment. However,

contrary to Johnston’s assertions, Florida has explicitly stated

that unanimity is only a part of the test it employs in

18

assessing harmless error.? Reynolds v. State, 43 Fla. L. Weekly

$163, 169 (Fla. April 5, 2018). Johnston’s assertion that the

Florida Supreme Court’s apparent focus on unanimity violates the

Equal Protection clause of the Fourteenth Amendment lacks merit

and merely voices Johnston’s disagreement with the Florida

Supreme Court’s denial of relief in his case.

First of all, a criminal defendant challenging the State’s

application of capital punishment on equal protection grounds

must show that similarly situated individuals are being treated

differently. Johnston falsely posits that all death row inmates

are similarly situated, when it is clear from examination of the

Florida Supreme Court opinions that they are not. Indeed, close

consideration of the individual cases where a violation of Hurst

v. State was alleged reveals that the Florida Supreme Court has

announced valid and consistent reasons for its decisions

regarding whether relief is warranted. Some death row inmates

have been granted relief because the Court determined that a

Hurst v. State error had occurred and the State failed to prove

9 In comparison, the Florida Supreme Court has found Hurst errors

to be harmful in all post-Ring cases where the jury’s

recommendation was not unanimous, regardless of the type and

nature of the aggravating factors. See e.g. Johnson v. State,

205 So. 3d 1285 (Fla. 2016); Deviney v. State, 213 So. 3d 794,

799 (Fla. 2017); Banks v. State, 219 So. 3d 32 (Fla. 2017);

Abdool v. State, 220 So. 3d 1106 (Fla. 2017); Kirkman v. State,

233 So. 3d 456 (Fla. 2018); Pagan v. State, 235 So. 3d 317 (Fla.

2018); Everett v. State, 43 Fla. L. Weekly S250 (Fla. May 24,

2018).

19

beyond a reasonable doubt that the error was harmless. This is

not a violation of equal protection; it is the correct

application of due process of law.

Johnston correctly notes that many of the Florida Supreme

Court’s decisions have been affirmed, as in his case, after

noting the fact that the defendant’s penalty phase jury

recommendation was unanimous. This is not to say, however, that

the Court is merely counting advisory recommendations as

Johnston asserts (Petitioner’s Brief, p. 6). To the contrary,

the Court has repeatedly explained the complex process involved

in assessing harmlessness in Hurst cases. Unanimity, the Court

explained in Davis v. State,!®° is a strong indicator, as it

demonstrates beyond a reasonable doubt that the jury followed

its instructions and made the necessary findings of fact,

including the existence and respective weight of aggravators and

mitigators, before determining whether to recommend a death

sentence. In its recent decision in Andres v. State, 43 Fla. L.

Weekly S389a (Fla. September 20, 2018), a case where the jury’s

death recommendation lacked unanimity, the Court explained:

“The trial court imposed Andres’ death sentence

following the jury’s non-unanimous recommendation of

death by a vote of nine to three. This Court is unable

to determine or speculate why the dissenting jurors

voted for a life sentence. This Court cannot determine

whether these jurors did not find that sufficient

19 Davis v. State, 207 So. 3d 142, 174-175 (Fla. 2016).

20

aggravating factors were proven to impose a sentence

of death, that the aggravation did not outweigh the

mitigation, or, for some other reason, determined that

death was not an appropriate sentence. Thus, the Hurst

error was not harmless beyond a reasonable doubt.”

Contrary to Johnston’s position that the lower court’s

focus on unanimity is unconstitutional, the Florida Supreme

Court explained in Reynolds v. State that unanimity is merely a

preliminary step in its assessment of harmless error; the focus

then moves toward whether the court may conclude beyond a

reasonable doubt that a rational jury would have unanimously

found that there were sufficient aggravators to outweigh the

mitigating factors. Id. at *169. In Johnston’s case, while the

Florida Supreme Court’s opinion was abbreviated, the

postconviction court’s Order denying relief incorporated a full

analysis of the necessary factors:

“The Court finds that this was a highly aggravated

case where the aggravators significantly outweighed

the mitigators, that the jury was instructed the

aggravators must be established beyond a reasonable

doubt, that the jury was not required to recommend

death if the aggravators outweighed the mitigators,

and that the jury recommendation was unanimous.

Further, the Court finds that the evidence supporting

the previous violent felonies both due to the

contemporaneous felonies of sexual assault,

kidnapping, and burglary of a conveyance with an

assault or battery, and due to -Defendant’s prior

violent felony convictions for brutal acts of violence

against women, which involved the same modus operandi

aS was present in the instant case, outweigh both the

statutory and non-statutory mitigation that was

presented on Defendant’s behalf. Additionally, the

Court finds that the evidence presented proving that

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