Opposition Brief — Billy Leon Kearse, Petitioner v. Florida

CASE NO. 18-7643

IN THE UNITED STATES SUPREME COURT

October 2018, Term

BILLY LEON KEARSE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

ASHLEY MOODY

Attorney General

Tallahassee, Florida

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

Florida Bar No.: 158541

*Counsel of Record

Carolyn.Snurkowski@myfloridalegal.com

CapApp@myfloridalegal.com

Telephone: (850) 414-3300

LESLIE T. CAMPBELL

Senior Assistant Attorney General

Florida Bar No. 0066631

Office of the Attorney General

1515 N. Flagler Dr.; Suite 900

West Palm Beach, FL 33401

Leslie. Campbell@myfloridalegal.com

Telephone (561) 837-5016

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

I - Whether certiorari review should be denied because (1)

the Florida Supreme Court’s decision finding Hurst v.

Florida and Hurst v. State are not retroactive to cases

final before Ring v. Arizona was decided is based on state

law; (2) does not violate the Eighth Amendment; and (3)

does not violate the Equal Protection or Due Process

Clauses; and the Florida Supreme Court decision does not

conflict with any decision of this Court or involve an

important, unsettled question of federal law? (restated)

II — Whether certiorari review should be denied because

the Florida Supreme Court’s decision finding Hurst v.

Florida and Hurst v. State are not retroactive to cases

final before Ring v. Arizona was decided is not violative of

the Supremacy Clause of the United States Constitution

and the decision does not conflict with any decision of this

Court or involve an important, unsettled question of law?

(restated)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ....0000.0....ccccccccccseseecesseceeseneesseeeeseneenes i

TABLE OF CONTENTS... eccessceesseceeeesneeseeeseeaeeaneeacesseesesaeesaeeseeeeeneeeaees il

TABLE OF CITATIONS. ....0.0.. occ cece scsseeeseeecseeesesneeecsueeseeseesenaeeeseeseseseeeeesnes il

CITATION TO OPINION BELOW. ...00.0.. ccc ceceeesneeeseeeeeenneeeeseeeesseceeeseesees 1

JURISDICTION 00... eseeccesseecnceseeneeeneeceeeesnsenscesseeseaeeeeneesseeeesaeesaeesnecenseeeass 1

CONSTITUTIONAL PROVISIONS INVOLVED .............ceeccceesseeeseeereeeeeneeeeees 1

STATEMENT OF THE CASE AND FACTS uo... eeseeceseeseceeeeeeeseeeeseneeeees 2

REASONS FOR DENYING THE WRIT... ee ee eeeeeeseceeeeeeeeeseeeesenseseseeees 6

ISSUE I

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE (1) THE

FLORIDA SUPREME COURT'S DECISION FINDING HURST V. FLORIDA

AND HURST V. STATE ARE NOT RETROACTIVE TO CASES FINAL

BEFORE RING V. ARIZONA WAS DECIDED IS BASED ON STATE LAW;

(2) DOES NOT VIOLATE THE EIGHTH AMENDMENT; AND (3) DOES

NOT VIOLATE THE EQUAL PROTECTION OR DUE PROCESS CLAUSES;

AND THE DECISION DOES NOT CONFLICT WITH ANY DECISION OF

THIS COURT OR INVOLVE AN IMPORTANT, UNSETTLED QUESTION

OF LAW (RESTATED) ............cccccesseeessseseceseseseseseseseseseseeaesesesaeeeseaeseseneeseaeeseseeses 6

ISSUE II

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE THE FLORIDA

SUPREME COURTS DECISION DETERMINING HURST V. FLORIDA

AND HURST V. STATE ARE NOT RETROACTIVE TO CASES FINAL

BEFORE RING V. ARIZONA WAS DECIDED IS NOT VIOLATIVE OF THE

SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION AND

THE DECISION DOES NOT CONFLICT WITH ANY DECISION OF THIS

COURT OR INVOLVE AN IMPORTANT, UNSETTLED QUESTION OF

LAW (RESTATED) .......c.ccsccssssssssessessesessessessesscssessssuessssesscsscssssacsussesatsacacaeeese 24

CONCLUSION ......ccccssessessesssesssssesssessessssssssesssssessecsecssessessessssucssesessussevsnvaneaseses 29

CERTIFICATE OF SERVICE. ......ccccscssssssesssssssssssssssssssessesssssscscsestesssescscsseens 30

INDEX TO APPENDIZ ........cccscsssssesessssssesessssssesssscssssssesssessesssssssssesssscessssvsees 31

il

TABLE OF CITATIONS

Page(s)

Cases

Alleyne v. United States, 133 S. Ct. 2151 (2018) oo... eeeccecccccsccesscececccscceccesecsseeeseesecees 23

Almendarez-Torres v. United States, 523 U.S. 224 (1998).......cccccccccccscccecssssccesssteeeees 23

Apprendi v. New Jersey, 530 U.S. 466 (2000)..........:.ccccssccsssesssseessssssssecssceseeas 6, 10, 23

Asay v. State, 210 So. 3d. 1 (Fla. 2016) w..ccccccccceccsceesccsecscesssesecccecesessccescceseceeesceese 7, 8,9

Beck v. Washington, 369 U.S. 541 (1962) w..c.ccccccececsceescsecscecsssccesesececeseeececseacessceess 14

Branch v. State, 234 So.3d 548 (Fla.), cert. denied, 188 S.Ct. 1164 (2018) ................. 9

Caldwell v. Mississippi, 472 U.S. 820 (1985) ...ccccecccsscecccseeeccsscesccccessccecsscescessessaeess 18

Cardinale v. Louisiana, 394 U.S. 487 (1969) .........ccccecccccscceseceecescecsceereeesceecseeceeeesseees 8

Chapman v. California, 386 U.S. 18 (1967)........:cccccsscssscccssccssesssesceesessscceessesssssesseaseees 27

Cole v. State, 234 So. 3d 644 (Fla. 2018)... ccccececeeceececccsececescceeseeeceseeeaeeseeserseens 9

Crawford v. Washington, 541 U.S. 36 (2004) wu... eecececseccesseccceccecccececerseccereceesecees 11

Danforth v. Minnesota, 552 U.S. 264 (2008) .........ccccecccesceesccecsecececeesecenccescececersneeeeees 8

Darden v. Wainwright, 477 U.S. 168 (1986) ..........sseeseecesseeseeeeceseeeeeeeseceeseseeeteneeeeases 18

Dorsey v. United States, 567 U.S. 260 (2012) ....c.ccccccccccessecessssscesecesscceeneeseeeeseeeess 12

Dugger v. Adams, 489 U.S. 401 (1989) .....c.cccccccscescssccsecccssesseseccrsensenesseseseeeeens 18, 21

Florida v. Powell, 559 U.S. 50 (2010) .........cccccccsecccccsceccccenscccccsssscccecessuececeesssecessenteeee 8

Fox Film Corp. v. Muller, 296 U.S. 207 (1985) .......cccccccssssscssscsssssesecessescsssesessessesseesenes 8

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

General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175 (1924).......... 19

ili

Griffith v. Kentucky, 479 U.S. 314 (1987) .....ccccccescssssssscssscssecessecesesesessssesssnteccsseeees 12

Grim v. State, 244 So. 3d 147 (Fla.).......ccccceccesccceccscescesescceecceessesceeseccecaeecseseseseeeecacees 9

Hannon v. State, 228 So.3d 505 (Fla.) ...c.cccccccecccceccsecessecessccsscssscsceseessceessecessssasenessacs 9

Harris v. Alabama, 513 U.S. 504 (1995)......ccsssssssseseseseseesesceseseeeeseeeesssearesesseneenssneess 20

Henry v. State, 184 So. 8d 938 (Fla. 2014) .........ssccssssssessessesesessesesaesesseseeesnsssesseneeees 15

Hitchcock v. State, 226 So.3d 216 (Fla. 2017) .......eccccccccccsscceseccecsccesssscceseceeeeevenseveee 5,9

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

Hurst v. State, 202 So.3d 40 (Fla. 2016) ......cccccccccccceccsscsesssessesesescsesssseseeeueses passim

Jenkins v. Hutton, 137 S.Ct. 1769 (2017) .0......esseesesesesesesseseeeeseseseesteeesesesaseessesnasenees 23

Johnson v. Mississippi, 486 U.S. 578 (1988) ........c:cccccccscsccssccsccsssseesseessscsssssssnses 15, 16

Johnson v. United States, 185 S.Ct. 2551 (2015) .......cccccccccsssescsscccscessssssessecsseneesecens 26

Johnston v. State, 246 So. 3d 266 (Fla.) ...ccccccccccsscecsscssecesscecsessssecesscesseressseessssanens 9,19

Jones v. State, 234 So. 3d 545 (Fla. 2018) .......ecccccccccsssssecssecesesesccssscessesecececsaveneeeneuese 9

Jones v. State, 241 So. 3d 65 (Fla.).....ccecessssscessecesecccececescecseccecccessecsecscesececessesseseees 9

Kansas v. Carr, 186 S. Ct. 633 (2016) ooo... cceecccssccsscsessscsescccescecscceceeceseceeseceeseeaee 22, 23

Kearse v. Florida, 121 S.Ct. 1411 (Mar. 26, 2000).....0....ccccceccceccesessseeseesssssseseeeseee 4,5

Kearse v. State, 11 S0.3d 355 (Fla. 2009)........ccccccccsssscccssscscsccsseccceccessceceeesessseneccsnece 4

Kearse v. State, 75 So.3d 1244 (Fla. 2011)... .ccccccccccscccscscsccssccsnecsseessssessseseseseesaneeees 4

Kearse v. State, 252 S0.3d 693 (Fla. 2018) .....ccccccccecccsssccsssecssccesseccsessessecsseeenscanseaes 1,5

Kearse v. State, 662 So.2d 677 (Fla. 1995)..........scccsscccsecscccescccssccessscesceccceseeeeess 2, 3, 23

Kearse v. State, 770 So.2d 1119 (Fla. 2000)..............ccccccscecensccesesceceesssesceseeeneeces 4, 5, 23

Kearse v. State, 969 So.2d 976 (Fla. 2007).........csssccsessecesssreseereseeresseaeeteansneneseeeseeeneess 4

lv

Lambrix v. State, 227 So.8d 112 (Fla.) ....cccccccccccsccsssccssesssssssccsssseccssecesesssseseseseeseees 9, 14

McCleskey v. Kemp, 481 U.S. 279 (1987)........ccccccccccssesssecsscsssesscsecesseesesesessecseseecneesseas 18

McGirth v. State, 209 So.3d 1146 (Fla. 2017) .......cceccceeccsssscceecceseeccevenccbaneeseeseeeensreees 27

McLaughlin v. Florida, 379 U.S. 184 (2008) ........cccccccsccssssssssssscsesssssscsssssssnsesseesseeseees 11

Michigan v. Long, 463 U.S. 1082 (1988) ......0..cccccccccscsccccsssesssseesssccsessseessessessesseenaees 8

Middleton v. Florida, 138 S. Ct. 829 (2018) ...........:scsessssssseseseesseeeeeseeeseaeseseeeseseseeens 19

Miller v. Alabama, 567 U.S. 460 (2012) ...cecceccceeccescceceeceeccscsesesseccersrecensceeesesseee 24, 25

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) .....ccccccccccccssescssescescessesesssseeses 24, 25

Mosley v. State, 209 So.3d 1248 (Fla. 2016)..........ccccccccscssscsssssesessecssseeseesesssseseseseseees 7

Mugnin v. State, 689 So.2d 1026 (Fla. 1995) ........cccccccseecsesscsssssseeesssevsseseesseceseeeseeces 17

Neder v. United States, 527 U.S. 1 (1999) ........ceecsssessesseseeeeseeneeeeneeeseseaeeesesseseeseaeeses 23

Page v. Arkansas Natural Gas Corp., 286 U.S. 269 (1982) .......:ccsccssssssssssscessesesseees 19

Penry v. Lynaugh, 492 U.S. 302 (1989) 0... ccc cceeeceeeesesesscesseeeseceesesersceaseeeseeeess 10

Philmore v. State, 234 So. 3d 567 (Fla) oc... ccececececsscececcccessscessccceeeesescecesaceesseeeeeseesees 9

Powell v. Delaware, 153 A.3d 69 (Del. 2016) .........ecsssssecseseseceesesereneneeseeeneeasseeetereeeees 27

Rauf v. State, 145 A.3d 430 (Del. 2016).........:.scceceseeeeees S caecessesseetacaeeueseeseeeeaeeneentseeees 27

Reynolds v. State, 251 So.3d 811 (Fla. 2018) ........ccccccccscscesesccecseceeeceseeesnecesvsseeseecess 19

Ring v. Arizona, 536 U.S. 584 (2002). ........ccccccescccssccsscesscessscescsessesessesenseaeeees 2, 4, 6, 20

Rockford Life Insurance Co. v. Illinois Department of Revenue, 482 U.S. 182 (1987)

ceceaseecuenecanseceaccuaneceenesancacecesuaenocasescesseeueetensenseseaetcasessuecsaneeseneseaeeenaeceeeeseseousesceressceseneeees 19

Romano v. Oklahoma, 512 U.S. 1 (1994) .....ccccescsssccssecesseccsssscsessscssscssesceseseeennees 18, 21

Schriro v. Summerlin, 542 U.S. 348 (2004) .......ccceccsscscssssesssscssesssecesseeees 11, 24, 25, 26

Spaziano v. Florida, 468 U.S. 447, (1984) ........cccccccscccccssesessscssseeescseceesesesssessccseseaeseenes 14

State v. Gales, 658 N.W.2d 604 (Neb. 2008) ..........ccccccesscseseescsseseeceseesneseenestseseeseeeesnses 22

State v. Mason, 153 Ohio St.3d 476(Ohio, April 18, 2018) ........cc.cccssesesccsscesesseceseees 22

Street v. New York, 394 U.S. 576 (1969). .........seescsesescesesesessseaeseecseecseeseeeeessenensentaney 8

Teague v. Lane, 489 U.S. 288 (1989) .o..c.ceccccccccssccssecscesessesccssecsseeeeseesssessnenes 8, 11, 12

United States v. Abney, 812 F.3d 1079 (D.C. Cir. 2016) 00... ccceccceeceeseeseseeeeeseeseees 12

United States v. Johnston, 268 U.S. 220 (1925) ......ccccscsssssessesesessscsseceessnsseeesesecseeees 19

United States v. Purkey, 428 F.3d 738 (8th Cir. 2005) ......c.cccccscsscssssssesssseesereseseees 22

United States v. Sampson, 486 F.3d 13 (1st Cir. 2007) ........cccccccsssssssscsssssssesssesseenees 22

Waldrop v. Comm’r, Alabama Dept. of Corr., 2017 WL 4271115 (11th Cir. Sept. 26,

QOVT) ..eseccesccsscesscesstececsscesecesceeseccssessesseesecessesseecseneseeateseseaeecsaeeseeseacsatesseesseseseceeseaeeaes 22

Walton v. Arizona, 497 U.S. 689 (1990) ........c.cesceseesee es eeeeneeeseeneeeeeeneeanesesnsnnneaeseey 10

Welch v. United States, 186 S.Ct. 1257 (2016) ........cccccccccccessescssesssesssssesseesseseeeees 25, 26

Whorton v. Bockting, 549 U.S. 406 (2007) .........ccccssssssssssssssssseseessesesesessessesesseseseeeseeses 10

Willacy v. State, 238 So. 3d 100 (Fla. 2018) ........cccccsccssesecssesccsesseeessesessecsessessneceecatenss 9

Witt v. State, 387 So.2d 922 (Fla.).......ccccsessssessessesessseeessesesasseseansnsaeseessneansessseeneeen 8

Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ...16,

18

Statutes

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

Art. I, §.17, Fla. Comst ......... oc. ceccssescsscessesesssneececeecccecececececseccsenccsasssesesesesesececeteeenssees 15

§921.141(2)(c), Fla. Stat. (2017)... eceececccceceescsceeceesscscsssececcsesavscesucecsavscsacaveeeaeeaeneves 21

Rules

Rule 10 of the Rules of the United States Supreme Court.............. ccc essseseeceeeeeeevees 28

vi

CITATION TO OPINION BELOW

The decision of which Petitioner seeks discretionary review is reported as

Kearse v. State, 252 So.3d 693 (Fla. 2018).

JURISDICTION

Petitioner, Billy Leon Kearse (“Kearse”), is seeking jurisdiction pursuant to

28 U.S.C. § 1257(a). This is the appropriate provision.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent, State of Florida (hereinafter “State”), accepts as accurate

Petitioner's recitation of the applicable constitutional provisions involved.

STATEMENT OF THE CASE AND FACTS!

This capital case is before this Court upon the Florida Supreme Court’s

affrmance of the denial of Kearse’s successive postconviction relief motion

addressed to Hurst v. Florida, 136 S.Ct. 616 (2016) and Hurst v. State, 202 So.3d 40

(Fla. 2016). There, the Florida Supreme Court determined that under state law

those cases were not retroactive to cases final before June 24, 2002, the date Ring v.

Arizona, 536 U.S. 584 (2002) issued, and thus, Kearse was not entitled to relief.

Kearse is incarcerated and sentenced of death based on a valid judgment of

guilt entered November 8, 1991 and sentence of death entered on March 24, 1997.

On February 5, 1991, he was indicted for the January 18, 1991 first-degree murder

of police officer Danny Parrish and possession of a firearm by a convicted felon. The

indictment was amended to include a robbery with firearm count. On October 21,

1991, the jury convicted Kearse of armed robbery and first-degree murder and he

was sentenced to death. Kearse v. State, 662 So.2d 677, 680 (Fla. 1995).2 The

1 References to the records will be: “1ROA” for the 1991 Direct Appeal; “2ROA-R”

and “2ROA-T for the 1996 Resentencing Record and Transcript; “1PCR” for the

Initial Postconviction record; “2PCR” for the Successive Postconviction Record;

“38PCR” for the Second Successive Postconviction Record; “4PCR” for the 2017

(SC17-346) Hurst postconviction appeal; and “5PCR” for the second Hurst

postconviction record (SC18-458) at issue here. Supplemental materials will be

designated by the symbol “S” and where appropriate, the volume and page

number(s) will be included.

2 The Florida Supreme Court found:

After [police officer Danny] Parrish observed Kearse

driving in the wrong direction on a one-way street, he

called in the vehicle license number and stopped the

vehicle. Kearse was unable to produce a driver's license,

Florida Supreme Court affirmed the conviction, but, remanded for re-sentencing.

Id., at 685-86.

Following the new penalty phase and the jurys unanimous death

recommendation, on March 25, 1997, Kearse was re-sentenced to death. The Florida

Supreme Court affirmed.? This Court denied certiorari and on March 26, 2000, the

and instead gave Parrish several alias names that did not

match any driver's license history. Parrish then ordered

Kearse to exit the car and put his hands on top of the car.

While Parrish was attempting to handcuff Kearse, a

scuffle ensued, Kearse grabbed Parrish's weapon and

fired fourteen shots. Thirteen of the shots struck Parrish,

nine in his body and four in his bullet-proof vest. A taxi

driver in the vicinity heard the shots, saw a dark blue

vehicle occupied by a black male and female drive away

from the scene, and called for assistance on the police

officer's radio. Emergency personnel transported Parrish

to the hospital where he died from the gunshot injuries.

. Kearse was arrested at that address. After

being informed of his rights and waiving them, Kearse

confessed that he shot Parrish during a struggle that

ensued after the traffic stop.

Kearse, 662 So.2d at 680.

3 The Florida Supreme Court stated:

The trial court found two aggravating circumstances: the

murder was committed during a robbery; and the murder

was committed to avoid arrest and hinder law

enforcement and the victim was law enforcement officer

engaged in performance of his official duties (merged into

one factor). The court found age to be a statutory

mitigating circumstance and gave it "some but not much

weight." Of the forty possible nonstatutory mitigating

factors urged by defense counsel, the court found the

following to be established: Kearse exhibited acceptable

behavior at trial; he had a difficult childhood and this

case became final. Kearse v. Florida, 121 S.Ct. 1411 (Mar. 26, 2000).

On October 3, 2001, Kearse sought state postconviction relief and following

an evidentiary hearing, relief was denied and the Florida Supreme Court affirmed.

Kearse v. State, 969 So.2d 976 (Fla. 2007). In the related state habeas case, Kearse

raised a Ring v. Arizona, 536 U.S. 584 (2002) claim. The Florida Supreme Court

rejected the issue opining, “First, Hingis not retroactive to Kearse's case. .. We also

note that Kearse's resentencing jury returned a unanimous recommendation of

death....” Kearse, 969 So.2d at 992. Subsequently, Kearse’s successive

postconviction motions challenging the lethal injection protocols and newly

discovered evidence were denied and the Florida Supreme Court affirmed. See

Kearse v. State, 11 So.3d 355 (Fla. 2009); Kearse v. State, 75 So.3d 1244 (Fla. 2011).

On or about July 16, 2009, Kearse filed his Petition for Writ of Habeas

Corpus with the United States District Court for the Southern District of Florida.

That petition was denied on September 1, 2015 and on September 29, 2015 Kearse

moved to Alter or Amend the decision and to stay his federal proceedings in light of

this Court granting certiorari in Hurst v. Florida. Kearse’s motions were denied

and presently his appeal to the United States Circuit Court of Appeals is pending.

On January 12, 2017, Kearse filed an over-large third successive

postconviction motion raising Hurst v. Florida, 136 S.C.t 616 (2016). The trial court

resulted in psychological and emotional problems. The

court determined that the mitigating circumstances,

neither individually nor collectively, were "substantial or

sufficient to outweigh the aggravating circumstances."

Kearse v. State, 770 So.2d 1119, 1122-23 (Fla. 2000).

denied the motion to exceed the page limitations and Kearse appealed. On May 9,

2017, the appeal (SC17-346) was dismissed for lack of jurisdiction and on November

29, 2017, Kearse returned to the trial court. (65PCR.1 26-82). After the Case

Management Conference (5PCR 187-54), a summary denial of relief was entered.

(5PCR 110-11). Kearse’s rehearing (5PCR 112-22), was denied (5PCR 123-24) and

he appealed. The Florida Supreme Court issued an Order to Show Cause why the

denial of relief should not be affirmed in light of Hitchcock v. State, 226 So.3d 216

(Fla. 2017). Upon consideration of the pleadings filed by the parties, the Florida

Supreme Court held:

After reviewing Kearse’s response to the order to show

cause, as well as the State’s arguments in reply, we

conclude that Kearse is not entitled to relief. Kearse was

sentenced to death following a jury’s unanimous

recommendation for death. Kearse v. State, 770 So. 2d

1119, 1123 (Fla. 2000). His sentence of death became final

in 2001. Kearse v. Florida, 532 U.S. 945 (2001). Thus,

Hurst does not apply retroactively to Kearse’s sentence of

death. See Hitchcock, 226 So. 3d at 217. Accordingly, we

affirm the denial of Kearse’s motion.

Kearse v. State, 252 So. 3d 693, 694 (Fla. 2018). Kearse seeks review of that

decision here.

REASONS FOR DENYING THE WRIT

ISSUE I

CERTIORARI REVIEW SHOULD BE DENIED

BECAUSE (1) THE FLORIDA SUPREME COURT’S

DECISION FINDING AURST V. FLORIDA AND

HURST V. STATE NOT RETROACTIVE TO CASES

FINAL BEFORE RING V. ARIZONA WAS DECIDED IS

BASED ON STATE LAW; (2) DOES NOT VIOLATE THE

EIGHTH AMENDMENT; AND (3) DOES NOT VIOLATE

THE EQUAL PROTECTION OR DUE PROCESS

CLAUSES; AND THE DECISION DOES NOT

CONFLICT WITH ANY DECISION OF THIS COURT OR

INVOLVE AN IMPORTANT, UNSETTLED QUESTION

OF LAW (RESTATED). .

Kearse acknowledges his sentencing jury unanimously recommended the

death penalty and that his sentence was final before June 24, 2002, the date Ring v.

Arizona, 536 U.S. 584 (2002) issued and the date to which the Florida Supreme

Court held Hurst v. Florida and Hurst v. State applied retroactively under State

law. However, he asserts that he is entitled to certiorari because his sentence

became final after Apprendi v. New Jersey, 530 U.S. 466 (2000) and that the Florida

Supreme Court’s decision on retroactivity is arbitrary and violates the Eighth

Amendment to the United States Constitution and the Equal Protection and Due

Process Clauses. He maintains that the Hurst decisions should have been made

retroactive to at least Apprendi as Ring did not address Florida’s capital sentencing

and in deciding Hurst v. Florida, this Court relied on Apprendi. As will be shown

below, nothing about the process employed by the Florida Supreme Court in

rejecting Kearse’s Hurst claim is inconsistent with the Constitution. The Florida

Supreme Court’s decision is based on adequate and independent state grounds, is

not in conflict with any other state court of last review, and is not in conflict with

any federal appellate court. Kearse does not provide any “compelling” reason for

this Court to review his case on procedural or constitutional grounds. Certiorari

review should be denied.

1. The Florida Supreme Court’s decision on retroactivity

is based on independent and adequate state law

The Florida Supreme Court’s holding in Hurst v. State followed this Court's

ruling in Hurst v. Florida in requiring aggravating circumstances be found by a jury

beyond a reasonable doubt before a death sentence may be imposed. However, the

Florida court expanded this Court’s ruling, requiring in addition that “before the

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

must unanimously 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. In Asay v. State, 210 So. 3d 1, 22 (Fla. 2016), cert.

denied, 138 S. Ct. 41 (2017), the Florida Supreme Court ruled, as a matter of state

law, Hurst v. State is not retroactive to any case final prior to the June 24, 2002,

decision in Ring. See Mosley v. State, 209 So.3d 1248, 1272-73 (Fla. 2016) (holding,

as a matter of state law, Hurst v. State applies retroactively to defendants whose

sentences were not yet final when Ring was decided). Florida’s partial retroactive

application of Hurst v. State is not constitutionally infirm and does not present a

matter that merits the exercise of this Court’s certiorari jurisdiction.

This Court has held, in general, a state court’s retroactivity determinations

are a matter of state law, not federal constitutional law. Danforth v. Minnesota, 552

U.S. 264 (2008). State courts may fashion their own retroactivity tests, including

partial retroactivity tests. Under Danforth, a state supreme court is free to employ

a partial retroactivity approach without violating the federal constitution. The state

retroactivity doctrine employed by the Florida Supreme Court did not violate

federal retroactivity standards. The state court’s expansion of Hurst v. Florida in

Hurst v. State is applicable only to Florida defendants and consequently, subject to

retroactivity analysis under state law as set forth in Witt v. State, 387 So.2d 922

(Fla.), cert. denied, 449 U.S. 1067 (1980). See Asay, 210 So.3d at 15 (noting Florida’s

Witt analysis for retroactivity provides “more expansive retroactivity standards”

than the federal standards articulated in Teague v. Lane, 489 U.S. 288 (1989)

(emphasis in original; citation omitted).

Repeatedly, this Court has 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 this

Court has no jurisdiction to review state court decision unless a federal question

was raised and decided by the state court); Street v. New York, 394 U.S. 576, 581-82

(1969). If a state court’s decision is based on separate state law, this Court “will not

undertake to review the decision.” Florida v. Powell, 559 U.S. 50, 57 (2010).

Florida’s retroactivity analysis is a matter of state law. This fact alone

militates against the granting of certiorari. Respondent notes that this Court has

denied certiorari repeatedly when petitioned to review the Florida Supreme Court’s

retroactivity decisions following the issuance of Hurst v. State. See, e.g., Asay v.

State, 210 So.3d 1 (Fla. 2016), cert. denied, 138 S.Ct. 41 (2017); Hitchcock v. State,

226 So.3d 216 (Fla.), cert. denied, 138 S.Ct. 513 (2017); Lambrix v. State, 227 So.3d

112 (Fla.), cert. denied, 188 S.Ct. 312 (2017).4

Kearse suggests the Florida Supreme Court’s decision to make the Hurst

decisions retroactive to Aing instead of Apprendi is arbitrary and violative of the

Eighth Amendment, Equal Protection and Due Process. Again, the retroactivity

decision is a matter of state law. Also, this Court has not held Hurst v. Florida to

be retroactive. Kearse’s argument in support of retroactivity back to Apprendy is not

well taken. He offers that Aing was limited to reviewing Arizona’s capital

sentencing, and thus, Ring is an arbitrary date for retroactivity and violates the

Eighth Amendment. He claims June 26, 2000, the date Apprend? issued should be

the date for retroactivity, as this Court looked to Apprendi in discussing the Sixth

Amendment requirement for jury fact finding when deciding Hurst v. Florida and

4 See also, Johnston v. State, 246 So. 3d 266 (Fla.), cert. denied, 139 S. Ct. 481

(2018); Grim v. State, 244 So. 3d 147 (Fla.), cert. denied, 189 S. Ct. 480 (2018);

Jones v. State, 241 So. 3d 65 (Fla.), cert. denied, 18-6175, 2018 WL 4829029 (Dec.

10, 2018); Willacy v. State, 238 So. 3d 100, 101 (Fla. 2018), cert. denied 128 S.Ct.

1665 (2018); Cole v. State, 234 So. 3d 644 (Fla. 2018) cert. denied, No. 17-8540,

2018 WL 1876873, at *1 (U.S. June 18, 2018); Philmore v. State, 234 So. 3d 567, 568

(Fla.), cert. denied, 139 S. Ct. 478 (2018), Jones v. State, 234 So. 3d 545 (Fla. 2018),

cert. denied, No. 17-8652, 2018 WL 1998786, at *1 (U.S. June 25, 2018); Branch v.

State, 234 So.3d 548 (Fla.), cert. denied, 138 S.Ct. 1164 (2018); Hannon v. State,

228 So.3d 505 (Fla.), cert. denied, 138 S.Ct. 441 (2017).

concluding Florida’s capital sentencings was unconstitutional in part as it allowed a

judge, sitting alone, to make findings necessary to impose the death penalty.

Kearse’s argument fails and does not support certiorari review.

First, Apprendi carved out capital sentencing from its application. In

Apprendi, the Court left intact Walton v. Arizona, 497 U.S. 639 (1990), and

distinguished it from non-capital cases. Apprendi, 530 U.S., at 497. Second, it was

not until Aing that Walton was overruled, thus, there was no recognized

constitutional infirmity of capital cases based on Apprendi. Third, neither Apprendi

nor Hing were made retroactive as each was found to have been a procedural change

in the law. Even under the Florida Supreme Court’s reliance on Witt to assess

retroactivity in Asay and Mosley, there was no basis to make the Hurst cases

retroactive to Apprendi. Hence, the state law retroactivity decision to make Ring

the date for retroactivity and not Apprendi does not violate the Eighth Amendment;

it is not arbitrary under the state law analysis conducted in Asay and Mosely.5 This

Court should deny certiorari.

.2. Kearse has not shown constitutional infirmity based

on the Eighth Amendment, Equal Protection, or Due

Process

There is no Eighth Amendment infirmity or violations of Equal Protection

and Due Process here, as new rules of law such as the rule announced in Hurst v.

Florida usually do not apply to cases that are final. See Whorton v. Bockting, 549

5 With retroactivity, there is usually a cutoff date to provide for finality in appellate

processing. Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (holding finality concerns

in retroactivity are applicable in capital context).

10

U.S. 406, 416 (2007) (explaining the normal rule of non-retroactivity and holding

the decision in Crawford v. Washington, 541 U.S. 36 (2004), was not retroactive).

Also, the general rule is one of non-retroactivity for cases on collateral review, with

narrow exceptions. See Teague v. Lane, 489 U.S. 288, 307 (1989) (observing there

were only two narrow exceptions to general rule of non-retroactivity for cases on

collateral review). Further, certain matters are not retroactive at all. Hurst v.

Florida was based on this Court’s holding in Ring, which in turn was based on

Apprendi. This Court has held that “Ring announced a new procedural rule that

does not apply retroactively to cases already final on direct review.” Schriro v.

Summerlin, 542 U.S. 348, 352 (2004) (emphasis added). This case is an

inappropriate vehicle for certiorari as Hurst v. Florida is merely an application or

refinement of Ring and this Court already has held that Aing is not retroactive in

Schriro. It would be an odd result indeed, if this Court were to hold that Hurst is

retroactive, even though Hing was not.

Pointing to McLaughlin v. Florida, 379 U.S. 184 (2008), Kearse maintains

that “partial retroactivity” is unconstitutional as there is no justifiable basis for

creating the two classes of defendants, i.e., those who cases were final pre-Aing and

those final post- Ring. (Pet. 25). Other than asserting his right against an arbitrary

infliction of punishment and while noting there are various reasons, delay in

briefing, difference in timing of the transmission of the record, or court vacation,

Kearse does not cite a case holding that it is unconstitutional to treat defendants

differently based on when a case becomes final. Likewise, he has offered nothing to

11

establish that retroactivity must be binary only.

In Griffith v. Kentucky, 479 U.S. 314, 328 (1987), this Court held “a new rule

for the conduct of criminal prosecutions is to be applied retroactively to all cases,

state or federal, pending direct review or not yet final, with no exception for cases in

which the new rule constitutes a ‘clear break’ with the past.” Under this “pipeline”

concept, only those cases still pending direct review or not yet final would receive

the benefit from alleged Hurst error. Retroactivity under Griffith depends on the

date of the finality of the direct appeal. Under Teague, if a case is final on direct

review, the defendant will not receive the benefit of the new rule unless one of the

narrow exceptions announced in Jeague applies. Again, finality is the critical datebased test under Zeague. There is nothing about Florida’s decision providing partial

retroactivity to Hurst v. Florida and Hurst v. State based on state law that is

contrary to this Court’s retroactivity jurisprudence.

Moreover, if partial retroactivity violated the United States Constitution or

this Court’s retroactivity jurisprudence, this Court would not have given partial

retroactive effect to a change in the penal law in Dorsey v. United States, 567 U.S.

260 (2012). In Dorsey, this Court held that the Fair Sentencing Act was partially

retroactive in that it would apply to those offenders who committed applicable

offenses prior to the effective date of the act, but who were sentenced after that

date. Jd. at 273. See United States v. Abney, 812 F.3d 1079, 1097-98 (D.C. Cir.

2016) (noting prior to decision in Dorsey, Court had not held a change in criminal

penalty to be partially retroactive).

12

Any retroactive application of a new development in the law under any

analysis will mean some cases will get the benefit of a new development, while

others will not, depending on a date. Drawing a line between newer cases that will

receive the benefit of a new development in the law and older final cases that will

not receive the benefit is part and parcel of the landscape of any retroactivity

analysis. It is simply part of the retroactivity paradigm that some cases will be

treated differently than others based on the age of the case. This is not arbitrary

and capricious or a violation of the Eighth Amendment, Equal Protection or Due

Process; it is simply a fact inherent in the retroactivity analysis.

Kearse’s argument for the finding of a violation of the Equal Protection or

Due Process Clauses arising from partial retroactivity is without merit. A criminal

defendant challenging the State’s application of capital punishment must show

intentional discrimination to prove an equal protection violation. McCleskey v.

Kemp, 481 U.S. 279, 292 (1987). A “I[d]iscriminatory purpose’. . . implies more than

intent as violation or intent as awareness of consequences. It implies that the

decisionmaker . . . selected or reaffirmed a particular course of action at least in

part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable

group.” Jd. at 298. The Florida Supreme Court’s partial retroactivity ruling was

based on the date of the Aing decision, not based on a purposeful intent to deprive

post-Apprendi/pre-Ring death sentenced defendants in general, and Kearse

specifically, relief under Hurst v. State. The Florida Supreme Court has been

consistent in denying Hurst relief to those defendants whose convictions and

13

sentences were final when fing was issued in 2002. Kearse is being treated the

same as similarly situated capital defendants. Hence, his due process and equal

protection arguments fail and certiorari should be denied. Additionally, in Beck v.

Washington, 369 U.S. 541 (1962), this Court refused to find constitutional error in

the alleged misapplication of Washington law by Washington courts: “We have said

time and again that the Fourteenth Amendment does not ‘assure uniformity of

judicial decisions ... for] immunity from judicial error...’ Were it otherwise, every

alleged misapplication of state law would constitute a federal constitutional

question.” Jd. at 554-55 (citation omitted).

It is also Kearse’s position that the Florida Supreme Court could not rely on

Ring as the retroactivity date as it was a Sixth Amendment case and Hurst v. State

was based on the Eighth Amendment. (P at 21-24). Here again, Kearse’s challenge

fails. Although the Florida Supreme Court discussed the Eighth Amendment in

Hurst v. State, it did not, nor could it, hold that Florida’s capital sentencing violated

the Eighth Amendment and required resentencing. In fact, the Florida Supreme

Court rejected Eighth Amendment challenges to capital sentences after Hurst v.

State. See Lambrix, 227 So.3d at 113 (rejecting arguments based on Eighth

Amendment, due process, and equal protection following Hurst v. Florida and Hurst

v. State). Furthermore, in Spaziano, this Court held the Eighth Amendment is not

violated in a capital case when the ultimate responsibility of imposing death rests

with the judge. Spaziano v. Florida, 468 U.S. 447, 463-64, (1984). In deciding Hurst

v. Florida, this Court analyzed the case pursuant to Sixth Amendment grounds

14

only. It did not address any Eighth Amendment maters. Consequently, Hurst v.

Florida only overrules Spaziano to the extent Spaziano allows a sentencing judge to

find an aggravating circumstance independent of a jury’s fact-finding. This Court

has never held that a unanimous jury recommendation is required under the Eighth

Amendment.

While the Florida Supreme Court initially included the Eighth Amendment

as a reason for warranting unanimous jury recommendations in its Hurst v. State

decision, the Court did not, and cannot, overrule this Court’s surviving Spaziano

precedent. Further, Florida has a conformity clause in its constitution requiring

courts interpret Florida’s prohibition on cruel and unusual punishment in

conformity with the United States Supreme Court’s Eighth Amendment

jurisprudence. Art. I, § 17, Fla. Const.; Henry v. State, 134 So. 3d 938, 947 (Fla.

2014) (noting courts bound by United States Supreme Court precedent regarding

Eighth Amendment claims under Article I, section 17 of the Florida Constitution).

Kearse’s reliance on the Eighth Amendment discussed in Hurst v. State is

misplaced and does not support his claim for certiorari.

Furthermore, Kearse’s jury recommended death unanimously. Kearse claims

that the jury was not required to identify the aggravation it found unanimously,

thus, his sentence lacks the heightened reliability required by the Eighth

Amendment. However, Spaziano, as noted above does not require this. Also,

Kearse’s suggestion that the Eighth Amendment requires “unanimity” and his

reliance on Johnson v. Mississippi, 486 U.S. 578, 584 (1988) where it quotes

15

Gardner v. Florida, 430 U.S. 349 (1977) for this may be a typographical error.6 In

any case this Court has not so held.

6 In arguing that unanimity is required under the Eighth Amendment (P at 21-22),

Kearse offers that in Johnson, Justice White cited Gardner for the proposition that

“The fundamental respect for unanimity underlying the Eighth Amendment's

prohibition against cruel and unusual punishment gives rise to a special ‘need for

reliability in the determination that death is the appropriate punishment’ in any

capital case.” (P at 22). However, in Gardner v. Florida, 480 U.S. 349, 363 (1977),

this Court stated:

In holding that the failure to conduct the sort of posttrial

sentencing proceeding which Florida law requires, and

which was conducted in this case, rendered North

Carolina's mandatory death penalty statute

unconstitutional, the plurality said:

(W)e believe that in capital cases’ the

fundamental respect for Aumanity underlying the

Eighth Amendment, see Trop v. Dulles, 356 U.S.

(86), at 100, 78 S.Ct. (590), at 597 (2 L.Ed.2d 6380)

(plurality opinion), requires consideration of the

character and record of the individual offender

and the circumstances of the particular offense as

a constitutionally indispensable part of the

process of inflicting the penalty of death.

Gardner, 430 U.S. at 363 (emphasis added). In Johnson, this Court provided:

The fundamental respect for Aumanity underlying the

Eighth Amendment's prohibition against cruel and

unusual punishment gives rise to a special “ ‘need for

reliability in the determination that death is the

appropriate punishment” in any capital case. See

Gardner v. Florida, 430 U.S. 349, 363-864, 97 S.Ct. 1197,

1207-1208, 51 L.Ed.2d 393 (1977) (WHITE, J., concurring

in judgment)(quoting Woodson v. North Carolina, 428

U.S. 280, 305, 96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944

(1976)).

Johnson, 486 U.S. at 584-85. This Court was referencing “humanity” not

unanimity.

16

Kearse’s suggestion that the likelihood one or more jurors may have voted for

life increases had the jury been told its decision must be unanimous and that the

judge could not override a life recommendation (P at 22-23) had one juror refused to

vote for death is not well taken in light of the discussion in Mugnin v. State, 689

So.2d 1026, 1030 (Fla..1995) and Hurst v. State itself. There are two well settled

principles regarding juries and their fact-finding role. First, jurors are obviously

well equipped to analyze evidence and, therefore, it is assumed that if the evidence

supports but one of two different theories, the jury would have found that which

was supported by the evidence. Cf Mugnin, 689 So.2d at 1030 (finding harmless

error where jury instructed on both felony murder and premeditated murder and

rendered general verdict of first degree murder where evidence clearly supported

felony murder but not premeditation). The second principle which is relevant to a

harmless error review, is what effect a “Hurst instruction on unanimity” would have

had on a rational jury. According to the rationale outlined in Hurst v. State, a

requirement of unanimity in capital sentencing, leads jurors to be more thorough,

they take more time in deliberations, they are more likely to agree on issues, they

work harder to evaluate the evidence and to reach a consensus; and they tend to be

more “evidence driven.” Hurst v. State, 202 So.3d at 58. Based on this data, a

rational jury, instructed in conformity with Hurst v. State, would be a jury that

would be more focused and motivated to follow the evidence and reach a consensus.

Here, it is clear Kearse’s jury found a contemporaneous violent felony

(robbery) and that the victim killed was a law enforcement officer based on the

17

conviction. It is not reasonable to assert that had the jury be instructed on the

unanimity requirement that it would reject the guilt phase decision, reject the

aggravation, and recommend life. Kearse’s jury was instructed in accordance with

the jury instruction in effect and recommended death unanimously. The jury's

unanimous recommendation completely undercuts Petitioner’s basis for certiorari

review.

Similarly, Caldwell v. Mississippi, 472 U.S. 320, 341 (1985) does not form a

basis for certiorari review here. In Caldwell 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)). In any case, there was no Caldwell error here.

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).7 Kearse’s jury was

instructed properly on its role based on the state law existing at the time of his

7 In Caldwell, error was found based on the prosecutor's argument to the jury that

the appellate court would review that sentence and would decide whether the death

sentence was appropriate. “To establish a Caldwell violation, a defendant

necessarily must show that the remarks to the jury improperly described the role

assigned to the jury by local law.” Dugger v. Adams, 489 U.S. 401, 407 (1989);

Darden v. Wainwright, 477 U.S. 168, 183 n.15 (1986) (rejecting a Caldwell attack,

explaining “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”)

18

trial. See Reynolds v. State, 251 So.3d 811, 818-28 (Fla. 2018) (explaining that

under Romano, the Florida standard jury instructions 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”).

Kearse also points to Caldwell to assert constitutional error as his jury was

instructed its role was advisory and did not need to be unanimous thereby violating

the Eighth Amendment as discussed in Caldwell. First, there is no underlying

Sixth Amendment violation and no conflict between the Florida Supreme Court’s

decision and this Court’s Eighth Amendment jurisprudence set forth in Caldwell

and its progeny. There is no conflict between the Florida Supreme Court’s decision

and that of any other federal appellate court or state supreme court.?

8 Respondent is cognizant of the Honorable Justice Sotomayor’s dissent from the

denial of certiorari in Middleton v. Florida, 138 S. Ct. 829 (2018), wherein she

criticized the Florida Supreme Court for not addressing the Caldwell claim in cases

where Hurst was applicable under state law. The Florida Supreme Court has now,

however, rejected explicitly Caldwel/ attacks on Florida’s standard penalty phase

jury instructions in the wake of Hurst. See Reynolds v. State, 251 So.3d 811 (Fla.

2018); Johnson v. State, 246 So. 3d 266 (Fla. 2018) (citing Reynolds in rejecting

Caldwell claim), cert. denied, 139 S. Ct. 481 (2018),

9 This Court has recognized that cases which have not developed conflicts between

federal or state courts or presented important, unsettled questions of federal law

usually do not deserve certiorari review. Aockford Life Insurance Co. v. Illinois

Department of Revenue, 482 U.S. 182, 184, n. 3 (1987). The law is well-settled that

this Court does not grant certiorari for the purpose of reviewing evidence and/or

discussing specific facts. United States v. Johnston, 268 U.S. 220 (1925) (denying

certiorari to review evidence or discuss specific facts). Further, this Court has

rejected requests to reassess or re-weigh factual disputes. Page v. Arkansas Natural

Gas Corp., 286 U.S. 269 (1932) (rejecting request to review fact questions); General

Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 178 (1924) (same).

19

Kearse’s jury was informed properly that the aggravators had to be proven

beyond a reasonable doubt, but mitigation needed to be proven by a preponderance

of the evidence. Further, the jury needed to determine whether sufficient

aggravating factors existed to justify the imposition of the death penalty and,

whether sufficient mitigating circumstances exist to outweigh any aggravation. The

jury was instructed that if it found the aggravation did not justify the death

penalty, its recommendation had to life imprisonment. Conversely, if sufficient

aggravation were found, the jury had to determine whether the mitigation

outweighed the aggravation. The jury was instructed properly based upon then

existing law. (2ROA-T.29 2684-94). It is absurd to suggest the jury should have

been instructed in accordance with a change in the law occurring 20 years later. The

claim is speculative; there is nothing indicating the jury’ responsibility was

diminished. Certiorari should be denied.

To the extent Kearse speculates as to why the jury rendered the

recommendation it did and posits the decision was insufficient to allow the trial

judge to impose the death sentence, Hurst v. Florida, does not demand

resentencing. See Ring, 536 U.S. at 612 (Scalia, J., concurring) (explaining “today’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, 518 U.S. 504, 515 (1995) (holding

Constitution does not prohibit the trial judge from “imposling] a capital sentence”).

No case from this Court has mandated jury sentencing in a capital case, and such a

20

holding would require reading a requirement into the Constitution that is simply

not there. The Constitution provides a right to trial by jury, not to sentencing by

jury. It follows there is no bases for certiorari review as a Florida jury’s decision

regarding a death sentence was, and remains, an advisory recommendation. See

Dugger v. Adams, 489 U.S. 401 (1989). See also §921.141(2)(c), Fla. Stat. (2017)

(providing that “filf 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).!° 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.

3. There is no underlying Sixth Amendment error in this case

Although not raised directly, Hurst y. Florida does not require jury

sentencing. Rather, it is a Sixth Amendment case which applied Ring to Florida’s

sentencing scheme, reiterating that a jury, not a judge, must find the existence of

an aggravating factor to make a defendant eligible for the death penalty. Hurst v.

Florida, 136 S. Ct. at_ 624. One of the aggravating circumstances in this case rests

squarely upon the jury’s guilt phase finding of robbery. Consequently, unlike the

situation in Hurst, Kearse’s eligibility for the death penalty is supported by the

jury’s guilt phase verdict. Murst v. Florida did not address the process of weighing

the aggravating and mitigating circumstances or suggest that the jury must

10 A Florida trial court, while bound by the jury’s findings of no aggravation and a

recommendation of a life sentence, is not bound by a jury’s recommendation of a

death sentence. A judge is still free to reject the jury's death recommendation and

impose a life sentence.

21

conduct the weighing process to satisfy the Sixth Amendment.!! In Kansas v. Carr,

136 S. Ct. 633 (2016), decided eight days after this Court issued Hurst v. Florida,

this Court emphasized:

Whether mitigation exists, however, is largely a judgment

call (or perhaps a value call); what one jury might

consider mitigating another might not. And of course, the

ultimate question whether mitigating circumstances

outweigh aggravating circumstances is mostly a question

of mercy—the 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, or must more-likely-than-not deserve.it. ... In the

last analysis, jurors will accord mercy if they deem it

appropriate, and withhold mercy if they do not, which is

what our case law is designed to achieve.

"Lower courts have almost uniformly rejected the notion that the weighing process

is a “fact” that must be found by the jury in order to satisfy the Sixth Amendment.

See State v. Mason, 153 Ohio St.3d 476, 483(Ohio, April 18, 2018) (noting

“[njearly 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)

(opining “[a]s 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) (stating “we 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”).

22

Carr, 136 S. Ct. at 642

As set forth above, Kearse’s penalty phase jury heard extensive evidence as to

his killing of Officer Parrish as he conducted a routine traffic stop of Kearse who

had been driving the wrong way down a one-way street. Instead of complying with

the Officer Parrish’s requests, Kearse struggled with the officer as he was being

handcuffed, stole the officer's gun, and killed him with it. Following his arrest at

the address he gave Officer Parrish, Kearse confessed to having killed the officer

during the struggle which ensued during the traffic stop. See, Kearse, 662 So.2d at

680. The aggravation, contemporaneous robbery and avoid arrest, inhered in the

jury’s guilt phase verdict and the sentencing jury recommended death unanimously.

The fact that this case is one of the most aggravated and least mitigated is evident

on the record facts and jury’s unanimous recommendation of death. The large

amount of evidence proving Kearse was the perpetrator also established the

aggravation. Kearse v. State, 770 So.2d 1119, 1122-23 (Fla. 2000). See Apprendi,

530 U.S. at 490; Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013)

(recognizing the “narrow exception . . . for the fact of a prior conviction” set forth in

Almiendarez-Torres v. United States, 523 U.S. 224 (1998)). Furthermore, under the

rational juror test for a harmless error analysis discussed in Neder v. United States,

527 U.S. 1, 18-19 (1999) and Jenkins v. Hutton, 137 S.Ct. 1769 (2017) no Sixth

Amendment violation has been established and certiorari should be denied.

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