Opposition Brief — Pennsylvania, Petitioner v.William R. Landis, Jr.

No. 19-714

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In The

Supreme Court of the United States

-----------------------------------------------------------------COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

v.

WILLIAM R. LANDIS, JR.,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Superior Court Of Pennsylvania

-----------------------------------------------------------------BRIEF IN OPPOSITION

-----------------------------------------------------------------MARK MCCULLOCH, ESQ.*

MKM LAW PLLC

144 Jewel Drive

Altamonte Springs, Florida 32714

(o) 321-370-3334

mmcculloch.mkmlaw@gmail.com

*Counsel of Record for Respondent

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................

ii

OPINIONS BELOW ...............................................

1

JURISDICTION .....................................................

1

CONSTITUTIONAL PROVISION INVOLVED .......

2

COUNTERSTATEMENT OF THE CASE .............

2

REASONS TO DENY THE PETITION .................

7

I.

II.

This case is not an appropriate vehicle to

consider altering centuries-old double jeopardy jurisprudence attaching special significance to an acquittal ...................................

7

This case is not an appropriate vehicle to

review, for the first time, the question of

whether there can ever be an implied

waiver of a fundamental individual Constitutional right ................................................ 13

CONCLUSION .......................................................

17

ii

TABLE OF AUTHORITIES

Page

CASES

Blueford v. Arkansas,

566 U.S. 599 (2012) ........................................... 10, 12

Boykin v. Alabama,

395 U.S. 238 (1969) .................................................16

Bullington v. Missouri,

451 U.S. 430 (1981) ...................................................8

Chambers v. Mississippi,

410 U.S. 284 (1973) .................................................16

Commonwealth v. Bolden,

472 Pa. 602 (Pa. 1977) ...............................................9

Commonwealth v. Duggar,

486 A.2d 382 (Pa. 1985) ............................................6

Commonwealth v. Gibbons,

784 A.2d 776 (Pa. 2001) ............................................9

Commonwealth v. Landis,

201 A.3d 768 (Pa. Super. 2018) .................................1

Commonwealth v. Larkins,

829 A.2d 203 (Pa. Super. 2003),

appeal denied, 870 A.2d 321 (Pa. 2005) ..................15

Commonwealth v. McDaniels,

886 A.2d 682 (Pa. Super. 2005),

appeal denied, 903 A.2d 537 (Pa. 2006),

cert. denied, 549 U.S. 960 (2006) ...............................3

Commonwealth v. Roberts,

399 A.2d 404 (Pa. 1979) ..........................................12

iii

TABLE OF AUTHORITIES – Continued

Page

Evans v. Michigan,

568 U.S. 313 (2013) ...................................................8

Fong Foo v. United States,

369 U.S. 141 (1962) ...................................................8

Gonzalez v. United States,

483 U.S. 390 (2008) .................................................16

Green v. United States,

355 U.S. 184 (1957) ...................................................7

Jackson v. Virginia,

443 U.S. 307 (1979) ...................................................8

Poland v. Arizona,

476 U.S. 147 (1986) ........................................... 10, 12

Sanabria v. United States,

437 U.S. 54 (1978) .....................................................8

Sattazahn v. Pennsylvania,

537 U.S. 101 (2003) ...................................................8

Smalis v. Pennsylvania,

476 U.S. 140 (1986) .................................................10

United States v. Ball,

163 U.S. 580 (1824) ...................................................8

United States v. DiFrancesco,

449 U.S. 117 (1980) ............................................. 7, 13

United States v. Scott,

437 U.S. 82 (1978) .....................................................8

United States v. Wilson,

420 U.S. 332 (1975) ...................................................7

iv

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTION

U.S. Const. Amend. V ....................................................2

STATUTES

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

18 Pa.C.S.A. §109(1)......................................................9

42 Pa.C.S.A. §9541, et seq. ...........................................4

RULES

Sup. Ct. R. 10 ................................................................1

Pa. R. App. P. 311(d) ......................................................6

OTHER AUTHORITY

1 Annals of Cong. 434 (1789) ........................................7

1

BRIEF IN OPPOSITION

OPINIONS BELOW

The December 24, 2018 unanimous opinion of the

Superior Court of the Commonwealth of Pennsylvania,

Middle District, is reported at Commonwealth v. Landis, 201 A.3d 768 (Pa. Super. 2018) and is reprinted

in Petitioner’s Appendix. (App. 1). The Superior Court

denied rehearing/re-argument without comment on

March 5, 2019. (App. 14). The Pennsylvania Supreme

Court denied discretionary review, without comment,

on September 4, 2019. (App. 24).

------------------------------------------------------------------

JURISDICTION

The decision of the Superior Court of the Commonwealth of Pennsylvania, Middle District, which is the

subject of the instant Petition, was entered December

24, 2018. The instant Petition was filed December 3,

2019. Respondent denies this Honorable Court has jurisdiction pursuant to 28 U.S.C. §1257(a) and denies

this case satisfies the standard set forth in Supreme

Court Rule 10.

------------------------------------------------------------------

2

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution provides in relevant part the following:

“ . . . nor shall any person be subject for the

same offence to be twice put in jeopardy of life

or limb;”

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COUNTERSTATEMENT OF THE CASE

The Commonwealth attempts to invoke the jurisdiction of this Court to review the denial of discretionary review, without comment, by the Pennsylvania

Supreme Court of the unanimous published opinion of

the Pennsylvania Superior Court affirming the Trial

Court’s interlocutory order (emphasis added) denying the Commonwealth’s motion to reinstate Count 2

of the Information charging Respondent with Murder

in the Third Degree. (App. 2). Respondent was found

NOT GUILTY on Count 2 of the Information by a jury

on April 5, 2013, the verdict was recorded, and the jury

was dismissed. (App. 3, 19).

The Commonwealth never challenged the NOT

GUILTY verdict on Counts 2-4 as being inconsistent or

violative of state law prior to the jury being dismissed

and did not file any post-trial motion to correct or

challenge the NOT GUILTY verdicts on Counts 2-4

even though such a challenge is permitted by the Pennsylvania Rules of Criminal Procedure. (App. 3). The

Commonwealth also failed to file a cross-appeal

3

challenging the verdicts that it now claims are inconsistent or impermissible as a matter of law. (App. 19).

The Commonwealth seeks to characterize Counts

2-4 as “lesser included offenses” however each count

was separately charged, the jury was instructed separately on each count, and a verdict was rendered separately on each count. Once the jury was dismissed and

the verdicts recorded (at the request of the Commonwealth), the NOT GUILTY findings were the statement of the jury and were not subject to challenge or

amendment. See Commonwealth v. McDaniels, 886

A.2d 682, 686-87 (Pa. Super. 2005), appeal denied, 903

A.2d 537 (Pa. 2006), cert. denied, 549 U.S. 960 (2006).

(App. 10).

Historically, on April 5, 2013, three years and four

months after the Respondent was arraigned on the

charges, the Berks County, Pennsylvania, Court of Common Pleas jury rendered a “GUILTY” verdict on Count

1, Murder in the First Degree, and “NOT GUILTY” on

Count 2, Murder in the Third Degree, Count 3, Voluntary Manslaughter, and Count 4, Involuntary Manslaughter. (App. 3). Originally, the Information charged

Respondent in Counts 3 and 4 with Aggravated Assault but at some point prior to closing arguments, the

manslaughter charges were substituted in the place of

the aggravated assault charges. (App. 3, 19).

At the same time Respondent faced trial on Counts

1-4 of the Information, Counts 5-30 of the same Information were severed by the Trial Court on April 14,

4

2010, and Respondent remained at jeopardy on those

charges during a presumed second trial. At sentencing

on the First Degree Murder charge, the only GUILTY

finding by the jury, the Commonwealth and trial

counsel for Respondent agreed, and Respondent acknowledged in open court following the Trial Court’s

colloquy, that Counts 5-30 of the Information would be

dismissed without prejudice and that in the event the

First Degree Murder conviction were reversed on appeal or through some form of collateral relief, the Commonwealth could reinstate Counts 5-30.

Respondent’s direct appellate review was denied.

Respondent timely sought post-conviction collateral

review pursuant to Pennsylvania’s Post-Conviction Relief Act, 42 Pa.C.S.A. §9541, et seq., charging that his

original trial counsel were ineffective for failing to present the testimony of a renowned forensic psychiatrist

prepared to testify that Respondent, at the time of the

killing of his wife, was suffering under a diminished

capacity and thus lacked the specific intent necessary

for a jury to convict Respondent of First Degree Murder. (App. 4). Following a two-day evidentiary hearing,

the Trial Court vacated the conviction and granted Respondent a new trial. (App. 4).

The Commonwealth unsuccessfully sought to reverse the Trial Court’s new trial order for the next 17

months. (App. 4, 20). Respondent does not argue that

he cannot be re-tried on Count 1, First Degree Murder.

Respondent recognizes, as this Court has recognized

countless times before, where a defendant seeks appellate review of a conviction, and his appeal results in a

5

reversal and new trial, he is subject to the same charge

and the same punishment as he was originally. Here,

Respondent was convicted of First Degree Murder,

sought direct and collateral review of that sole conviction, won a new trial on that sole count, and now faces

re-trial on that sole count.

Following the return of the record to the Trial

Court after the Commonwealth’s nearly two-year unsuccessful appeal, the Commonwealth filed an unopposed motion to reinstate Counts 5-30 based upon the

May 15, 2013 agreement, and also moved to reinstate

Counts 2-4 the counts upon which the jury had, in

2013, returned NOT GUILTY verdicts. Respondent objected to reinstating Counts 2-4 on the grounds that

the jury verdicts of NOT GUILTY on each of these separately charged offenses barred a second prosecution

under Double Jeopardy.

The Trial Court agreed with respondent that the

final recorded jury verdict of NOT GUILTY as to Count

2, Murder in the Third Degree, barred re-trial based

upon the Double Jeopardy clause of the Pennsylvania

and U.S. Constitutions and further denied the motion

to reinstate Counts 3 and 4 based upon the doctrine of

laches. (App. 15). Respondent, following a colloquy during which he specifically, knowingly, and intentionally

informed the Court he was not going to waive his Double Jeopardy protection, agreeing that a re-trial was

only on the sole count on which the jury returned a

“GUILTY” verdict: Murder in the First Degree.

6

The Commonwealth timely appealed the Trial

Court’s interlocutory order certifying in its Notice of

Appeal pursuant to Pa. R. App. P. 311(d) that “the

ruling terminated or substantially handicaps the prosecution of this case.”1 This so-called Duggar certification2 is required in cases where the Commonwealth

seeks to appeal in a criminal case “as of right” an interlocutory pre-trial order where the order does not

end the entire case. The basis for the Duggar certification is not reviewable or subject to challenge.

A panel of the Pennsylvania Superior Court, in a

unanimous published opinion, rejected the Commonwealth’s challenge to the Trial Court’s double jeopardy

ruling. (App. 1). The Commonwealth’s requests for rehearing and/or re-argument en banc and discretionary

review in the Pennsylvania Supreme Court were rejected without argument and without comment. (App.

14, 24).

------------------------------------------------------------------

1

Pa. R. App. P. 311(d) – Commonwealth appeals in criminal

cases. – In a criminal case, under the circumstances provided by

law, the Commonwealth may take an appeal as of right from an

order that does not end the entire case where the Commonwealth

certifies in the notice of appeal that the order will terminate or

substantially handicap the prosecution.

2

Commonwealth v. Duggar, 486 A.2d 382 (Pa. 1985).

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REASONS TO DENY THE PETITION

I.

This case is not an appropriate vehicle to

consider altering centuries-old double jeopardy jurisprudence attaching special significance to an acquittal

James Madison, in his first version of the double

jeopardy clause, wrote that “no person shall be subject,

except in cases of impeachment, to more than one punishment or one trial for the same offense.” See 1 Annals

of Cong. 434 (1789).

“The right not to be placed in jeopardy more than

once for the same offense is a vital safeguard in our

society, one that was deeply won and one that should

continue to be highly valued. If such great Constitutional protections are given narrow, grudging application they are deprived of much of their significance.”

See Green v. United States, 355 U.S. 184, 198 (1957).

“Implicit in this,” as Justice Blackmun later

wrote, “is the thought that if the Government may

re-prosecute, it gains an advantage from what it learns

at the first trial about the strengths of the defense case

and the weaknesses of its own.” See United States v.

DiFrancesco, 449 U.S. 117, 128 (1980) citing United

States v. Wilson, 420 U.S. 332, 352 (1975).

Consistent with this holding, this Court has repeatedly declared that a jury’s verdict of acquittal

is accorded “absolute finality.” See DiFrancesco, 449

U.S. at 129-30 (“We necessarily afford absolute

8

finality to a jury’s verdict of acquittal – no matter

how erroneous its decision.”) (emphasis added);

United States v. Scott, 437 U.S. 82, 105 (1978) (To permit a second trial after an acquittal, however

mistaken the acquittal may have been would present an unacceptably high risk that the Government

. . . might wear down the defendant so that “even

though innocent he may be found guilty.”) (emphasis

added); Jackson v. Virginia, 443 U.S. 307, 317 n. 10

(1979) (the jury’s verdict of NOT GUILTY is “unassailable” even though it might be “unreasonable.”)

(emphasis added); Fong Foo v. United States, 369 U.S.

141, 143 (1962) (“double jeopardy bars re-trial following a court-decreed acquittal even if based

on an egregiously erroneous foundation.”) (emphasis added); Evans v. Michigan, 568 U.S. 313, 324

(2013) (the judgment of acquittal “however erroneous it was, precludes re-prosecution on this

charge . . . ”); Sattazahn v. Pennsylvania, 537 U.S.

101, 106 (2003) (“Once a defendant is placed in

jeopardy for an offense, and jeopardy terminates

with respect to that offense, the defendant may neither

be tried nor punished a second time for the same offense.”) (emphasis added); United States v. Ball, 163

U.S. 580 (1824) (“a verdict of acquittal could not

be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby

violating the Constitution.”); Bullington v. Missouri,

451 U.S. 430, 442 (1981) (“A verdict of NOT GUILTY

is accorded absolute finality – no matter how erroneous its decision.”) (emphasis added); Sanabria

v. United States, 437 U.S. 54, 64 (1978) (“Where a

9

defendant has been found NOT GUILTY at trial,

he may not be retried on the same offense, even

if the legal rulings underlying the acquittal were

erroneous.”).

Double jeopardy is implicated, as a policy matter,

when re-prosecution is attempted after final judgment

is reached in a previous trial. See Commonwealth v.

Bolden, 472 Pa. 602, 620 (Pa. 1977). The jury in the underlying first trial returned a verdict of NOT GUILTY

on Count 3, murder in the Third Degree. This verdict

was accepted by the Court, recorded at the request of

the Commonwealth, and the jury dismissed. Pursuant

to Pennsylvania law, this verdict is an acquittal.3

There is no set of facts under which this final verdict was an acquittal which is afforded absolute finality and is unreviewable no matter how erroneous it

may be. See Commonwealth v. Gibbons, 784 A.2d 776

(Pa. 2001) (“[A] defendant is acquitted, and thus protected by double jeopardy, when the ruling, in whatever

form, actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual

elements of the offense charged.”).

3

Commonwealth’s statutory codification of the double jeopardy provision, 18 Pa.C.S.A. §109(1) reads: When a prosecution is

for a violation of the same statutes and is based on the same facts

as a former prosecution, it is barred by such former prosecution

under the following circumstances: (1) The former prosecution

resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of NOT GUILTY by the trier of

fact or in a determination that there was insufficient evidence to

warrant a conviction. (emphasis added).

10

The Commonwealth agrees with the fundamental

jurisprudence of this Court that “unlike convictions,

acquittals terminate the initial jeopardy, thus subjecting a defendant to a post-acquittal factfinding process

regarding guilt or innocence violates the Double Jeopardy Clause.” See Smalis v. Pennsylvania, 476 U.S. 140,

145 (1986). Yet despite this admission, the Commonwealth suggests the jury’s verdict of NOT GUILTY after the trial was an acquittal in form only. Such a

conclusion is absurd.

The Commonwealth suggests there is some alternative “interpretation” of the application of this Court’s

settled double jeopardy jurisprudence but attempting

to equate this Court’s holdings in Blueford v. Arkansas,

566 U.S. 599 (2012) and Poland v. Arizona, 476 U.S. 147

(1986) with the instant matter is unavailing. These

cases are wholly distinguishable and inapplicable to

the present case.

In Blueford, this Court considered whether the

declaration of the jury foreperson of a preliminary vote

by the jury finding the defendant NOT GUILTY on two

counts of murder announced during its ongoing deliberations was the equivalent of an acquittal. This Court

correctly ruled it was not an acquittal because it was

not a final decision of the jury. Any suggestion by the

Commonwealth that Blueford has any application in

this case is without merit and should be rejected.

In Poland, the issue concerned application of double jeopardy to a capital re-sentencing, specifically,

the finding of aggravating circumstances warranting

11

death. The defendant’s guilt phase conviction was overturned and he was convicted again on re-trial. When

it came time for sentencing, the jury again found aggravating circumstances and sentenced defendant to

death.

On appeal, the issue was whether the appellate

court’s finding of insufficient evidence to support one

of the two aggravating factors did this equate to an acquittal and thus double jeopardy barred the jury’s consideration of the particular factor. The issue was when

the guilt phase verdict is overturned, does it follow

that the prior sentence, too, is wiped clean so the double jeopardy bar does not apply to both proceedings.

None of this analysis has anything to do with the

instant “dispute” because the issue here is not about

whether Respondent can be re-tried for First Degree

murder – Respondent concedes this is permissible –

but whether, as the Commonwealth hopes, the NOT

GUILTY finding is a legal nullity and because the First

Degree conviction was overturned, so, too, were the

NOT GUILTY findings. There is absolutely no precedent in this Court to support such an absurd finding

and there is no reason for this Court to entertain such

a never-before-seen application of the double jeopardy

bar.

Neither of these cases is applicable to the present

case where the jury announced a final verdict of NOT

GUILTY, that verdict was recorded, and the jury was

dismissed. The unanimous decision of the Pennsylvania Superior Court is not in any way inconsistent with

12

Blueford or Poland because neither of those two cases

are applicable in the first place.

The Commonwealth attempts, through some creative legal gymnastics, to suggest because the elements

of Third-Degree murder are part of First-Degree murder, a reversal on the First-Degree verdict wipes out

the NOT GUILTY verdict on Third Degree murder.

There is no legal basis for this conclusion but even if it

was possible, is not the inverse also true? Who is to say

that the Third Degree NOT GUILTY verdict was incorrect as the Commonwealth suggests? If the jury found

Respondent NOT GUILTY of Third-Degree murder,

then it must also have found Respondent NOT

GUILTY of First-Degree murder under the creative elements analysis the Commonwealth avers here.4

Of course this analysis ignores, as it must, the fact

that each count was charged separately, the judge instructed the jury on each count separately, the verdict

slip included lines for a separate verdict on each count,

the jury rendered a separate verdict on each count, and

4

It is noted here that the Pennsylvania Supreme Court’s

holding in Commonwealth v. Roberts, 399 A.2d 404, 405 (Pa. 1979)

stands for the proposition that Respondent was entitled to dismissal of the First-Degree murder charge because “one who is acquitted of lesser degree[s] of homicide, namely murder in the Third

Degree, voluntary manslaughter, and involuntary manslaughter,

cannot be retried on a charge of [First] Degree murder arising

from the same factual situation.” Respondent, however, recognizes this holding is inconsistent with this Court’s double jeopardy jurisprudence that double jeopardy is inapplicable where

the guilty verdict is later overturned on appeal because in that

instance, jeopardy is not said to end.

13

the Court accepted and recorded, at the Commonwealth’s request, the final verdicts on each count.

A jury’s verdict of acquittal is accorded “absolute

finality.” See DiFrancesco, 449 U.S. at 129-30. Respondent was acquitted at trial and jeopardy ended once the

verdict was recorded and the jury dismissed. This case

is not the appropriate vehicle to reconsider whether

double jeopardy applies to these facts or, alternatively,

to establish another exception to the general principles

that have guided this Court’s jurisprudence for nearly

two centuries.

II.

This case is not an appropriate vehicle to review, for the first time, the question of

whether there can ever be an implied waiver

of a fundamental individual Constitutional

right

The Commonwealth alternatively attempts to rehash the same argument rejected unanimously in the

state courts below that Respondent’s notice of an intent to present evidence of diminished capacity at the

re-trial of First Degree murder requires Respondent

to admit guilt to Third-Degree murder and to force a

waiver of his double jeopardy protection against being

tried again following an acquittal. Neither position has

any supportive precedent in this Court or elsewhere

and this is not the case to review this issue.

This Honorable Court is reminded that this particular “issue of first impression” is before this Court

because the Commonwealth’s prosecutors, years ago,

14

failed to correct or object to a verdict that, until now,

they appeared perfectly happy with.

The Commonwealth’s position grants to its prosecutor the unilateral power to force Respondent to

waive, involuntarily, his fundamental double jeopardy

protection and at the same time to eviscerate the due

process right of every defendant to present a full and

complete defense. To deny Respondent the right to present a complete defense because the Commonwealth

failed to correct its own mistake five-and-one-half

years ago runs afoul of every conceivable measure of

fundamental fairness.

The Commonwealth’s premise here is wrong: Respondent is not asking to be convicted of Third-Degree

murder. Simply put, absent the requisite mens rea, a

defendant cannot be convicted of First-Degree murder.

Raising the possibility of presenting evidence of diminished capacity is only available to someone charged

with First-Degree murder and is directed solely at the

element of premeditation.

The Commonwealth vastly overstates the effect of

presenting this particular defense, specifically, that

somehow this defense necessarily frees the Commonwealth of its high burden of proving its case beyond a

reasonable doubt. The Commonwealth concedes a new

trial is necessary but then argues in essence that no

trial is necessary because the diminished capacity defense results in a conviction for Third-Degree murder.5

5

The Commonwealth, at the same time it is arguing that a

diminished capacity defense necessarily requires a defendant

15

Such a conclusion is an incorrect reading of the law

and, if accepted, renders all due process protections irrelevant. There is no decision from this Court that

would support this extraordinary proposition.

The Commonwealth relies upon Commonwealth v.

Larkins, 829 A.2d 203 (Pa. Super. 2003), appeal denied,

870 A.2d 321 (Pa. 2005) to support its contention that

double jeopardy can be waived. The Trial Court and the

Pennsylvania Superior Court both recognized Larkins

was inapplicable to the present case. In Larkins, the

defendant was convicted of First-Degree murder and

acquitted of Third-Degree murder and manslaughter.

Upon appeal, his First-Degree conviction was overturned.

On re-trial, Larkins requested the Court instruct

the jury on Third-Degree murder and manslaughter

even though he was acquitted on those charges previously. The trial court refused, reasoning that instructing the jury on these charges, when the defendant was

acquitted previously on those charges, violated double

jeopardy. See Larkins, 829 A.2d at 1204. He was again

convicted but argued on appeal that double jeopardy

was waivable and he should have been able to have

the Court instruct the jury on Third-Degree murder

and manslaughter. By not giving those instructions,

the Court denied him a fair trial. Id., at 1205.

concede guilt to Third-Degree murder, the Commonwealth admits

presenting the diminished capacity defense gives a jury “the option of finding guilt.” It is either one or the other but cannot be

both.

16

True, a defendant in theory can waive his rights,

such as the right to counsel, the right against selfincrimination, or the right to the protection against

double jeopardy, among other fundamental Constitutional rights, but any waiver must be voluntary, knowing, intelligent and explicit and cannot be inferred or

implied. See Boykin v. Alabama, 395 U.S. 238, 244

(1969); see also Gonzalez v. United States, 483 U.S. 390

(2008) (Scalia, J., concurring). Waiver must be the result of a deliberate choice and in this case, Respondent

expressly told the Trial Court he was NOT waiving his

double jeopardy protection and either the Commonwealth or the Court cannot force Respondent to do

something he has expressly rejected. There is no basis

in the law for this position.

The Commonwealth’s practical challenge in this

case is one of its own making. The Commonwealth’s position requires Respondent to give up a fundamental

right – the protection of double jeopardy – in order to

exercise another – the due process right to present a

full defense. This is a classic example of the Unconstitutional Conditions doctrine and violates Respondent’s

due process. The Commonwealth speculates about an

issue the lower state court and the Trial Court specifically found was premature, which is not unusual in reviewing interlocutory non-final orders. This Court

should reject this Petition on this basis.

This Court has expressed that a defendant’s due

process right is, at its core, “the right to a fair opportunity to defend against the State’s accusations.” See

Chambers v. Mississippi, 410 U.S. 284, 294 (1973). To

17

validate the Commonwealth’s position in this case –

Respondent cannot present a diminished capacity defense unless he waives his double jeopardy right –

would be to violate the essential fairness that due process requires.

------------------------------------------------------------------

CONCLUSION

Based on the foregoing, Respondent requests this

Honorable Court DENY the Petition for a Writ of Certiorari.

Dated: Altamonte Springs, Florida

January 29, 2020

Respectfully submitted,

MARK MCCULLOCH, ESQ.*

MKM LAW PLLC

144 Jewel Drive

Altamonte Springs, Florida 32714

(o) 321-370-3334

mmcculloch.mkmlaw@gmail.com

*Counsel of Record for Respondent