Opposition Brief — Shawn Rogers, Petitioner v. Florida

No. 19-8473

IN THE

Supreme Court of the United States

_______________

SHAWN ROGERS,

v.

STATE OF FLORIDA,

_______________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari

to the Florida Supreme Court

_______________

BRIEF IN OPPOSITION

_______________

ASHLEY MOODY

Attorney General of Florida

AMIT AGARWAL

Solicitor General

*Counsel of Record

JEFFREY PAUL DESOUSA

Deputy Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL 32399-1050

Phone: (850) 414-3681

amit.agarwal@myfloridalegal.com

jeffrey.desousa@myfloridalegal.com

August 14, 2020

Counsel for Respondent

CAPITAL CASE

__________

QUESTION PRESENTED

In Kansas v. Carr, this Court expressed the view that “[i]t would mean nothing

. . . to tell the jury that” certain “value call[s]”—like whether aggravators outweigh

mitigators and whether the defendant deserves mercy—must be found “beyond a

reasonable doubt.” 136 S. Ct. 633, 642 (2016). Consistent with that view, Florida law

does not require such determinations to be made beyond a reasonable doubt.

Petitioner Shawn Rogers was convicted of first-degree murder and sentenced

to death. Although he did not object to the jury instructions at trial, Petitioner argued

on appeal that the trial court committed “fundamental error” in not instructing the

jury that its findings as to the sufficiency and weight of the aggravating

circumstances must be made beyond a reasonable doubt. The Florida Supreme Court

rejected that claim. Pet. App. 19. This Court’s decision in Hurst v. Florida, 136 S. Ct.

616 (2016), the court explained, did not require that the determinations at issue

here—that “sufficient aggravating factors exist” and that those factors “outweigh the

mitigating circumstances”—be made beyond a reasonable doubt. Pet. App. 19-20.

Several months later, this Court confirmed that Hurst “did not require jury

weighing of aggravating and mitigating circumstances.” McKinney v. Arizona, 140 S.

Ct. 702, 708 (2020). A fortiori, Hurst did not require Petitioner’s jury to find, beyond

a reasonable doubt, that aggravators outweighed mitigating factors.

The question presented is: Whether the court below reversibly erred, as a

matter of federal law, in rejecting Petitioner’s claim of “fundamental error.”

i

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

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

STATEMENT OF THE CASE....................................................................................... 1

REASONS FOR DENYING THE PETITION .............................................................. 9

I.

This Case is a Poor Vehicle for Resolving Petitioner’s Question

Presented .................................................................................................. 9

II.

The Decision Below Does Not Conflict With This Court’s

Precedents .............................................................................................. 13

III.

The Decision Below Is Correct ............................................................... 16

CONCLUSION............................................................................................................. 25

ii

TABLE OF AUTHORITIES

Cases

Alleyne v. United States,

570 U.S. 99 (2013) .............................................................................................. 14, 18

Apprendi v. United States,

530 U.S. 466 (2000) ............................................................................................ 15, 23

Bailey v. State,

998 So. 2d 545 (Fla. 2008) ........................................................................................ 10

California v. Carney,

471 U.S. 386 (1985) .................................................................................................. 20

Card v. State,

803 So. 2d 613 (Fla. 2001) ........................................................................................ 10

Clemons v. Mississippi,

494 U.S. 738 (1990) .................................................................................................. 25

Daniels v. State,

121 So. 3d 409 (Fla. 2013) ........................................................................................ 10

Eddings v. Oklahoma,

455 U.S. 104 (1982) .................................................................................................. 17

Foster v. State,

258 So. 3d 1248 (Fla. 2018) .................................................................................. 8, 16

Garzon v. State,

980 So. 2d 1038 (Fla. 2008) ...................................................................................... 10

Harrell v. State,

894 So. 2d 935 (Fla. 2005) ........................................................................................ 10

Hurst v. Florida,

136 S. Ct. 616 (2016) ........................................................................................ passim

In re Winship,

397 S. Ct. ...................................................................................................... 14, 21, 22

Kansas v. Carr,

136 S. Ct. 633 (2016) ................................................................................. i, 13, 20, 21

Kansas v. Marsh,

548 U.S. 163 (2006) .................................................................................................. 22

Larkins v. State,

739 So. 2d 90 (Fla. 1999) .................................................................................... 12, 13

McCray v. New York,

461 U.S. 961 (1983) .................................................................................................. 20

McKinney v. Arizona,

140 S. Ct. 702 (2020) ........................................................................................ passim

Oregon v. Ice,

555 U.S. 160 (2009) .................................................................................................. 25

Ring v. Arizona,

536 U.S. 584 (2002) ........................................................................................ 1, 15, 25

iii

Sanford v. Rubin,

237 So. 2d 134 (Fla. 1970) ........................................................................................ 10

Smiley v. State,

295 So. 3d 156 (Fla. 2020) .................................................................................. 10, 12

State v. Poole,

No. SC18-245, 2020 WL 3116597 (Fla. Jan. 23, 2020) ....................................... 2, 20

State v. T.G.,

800 So. 2d 204 (Fla. 2001) .................................................................................. 10, 11

TSC Indus., Inc. v. Northway, Inc.,

426 U.S. 438 (1976) .................................................................................................. 23

United States v. Gaudin,

515 U.S. 506 (1995) ............................................................................................ 23, 24

Williams v. State,

209 So. 3d 543 (Fla. 2017) .................................................................................. 10, 12

Statutes

18 U.S.C. § 1001 ........................................................................................................... 23

18 U.S.C. § 3553(a) ...................................................................................................... 24

Fla. Stat. § 775.082(1) (2010) ........................................................................................ 1

Fla. Stat. § 921.141(2)(a) (2017) .................................................................................... 2

Fla. Stat. § 921.141(2)(a)-(c) (2010) ............................................................................... 1

Fla. Stat. § 921.141(2)(b) ............................................................................................... 2

Fla. Stat. § 921.141(2)(b)(2) ......................................................................................... 17

Fla. Stat. § 921.141(2)(b)(2)(a) .................................................................................... 20

Fla. Stat. § 921.141(2)(b)(2)(c) ............................................................................... 24, 25

Fla. Stat. § 921.141(3)(a)(2) ......................................................................................... 24

iv

STATEMENT OF THE CASE

1. In Hurst v. Florida, 136 S. Ct. 616 (2016), this Court held that Florida’s

capital sentencing scheme violated the Sixth Amendment in light of Ring v. Arizona,

536 U.S. 584 (2002). Under Florida law, the maximum sentence a capital felon could

receive on the basis of a conviction alone was life imprisonment. Hurst, 136 S. Ct. at

620. Capital punishment was authorized “only if an additional sentencing proceeding

‘result[ed] in findings by the court that such person shall be punished by death.’” Id.

(quoting Fla. Stat. § 775.082(1) (2010)). At that additional sentencing proceeding, a

jury would render an advisory verdict recommending for or against the death penalty,

and in making that recommendation was instructed to consider whether sufficient

aggravating factors exist, whether mitigating circumstances exist that outweigh the

aggravators, and, based on those considerations, whether death is an appropriate

sentence. Fla. Stat. § 921.141(2)(a)-(c) (2010).

This Court struck down that scheme in Hurst. Observing that it had previously

declared invalid Arizona’s capital sentencing scheme because the jury there did not

make the “required finding of an aggravated circumstance,” which exposed a

defendant to “a greater punishment than that authorized by the jury’s guilty verdict,”

the Court held that that criticism “applie[d] equally to Florida’s.” Hurst, 136 S. Ct. at

621–22 (quoting Ring, 536 U.S. at 604). “Florida’s sentencing scheme, which required

the judge alone to find the existence of an aggravating circumstance, [wa]s therefore

unconstitutional.” Id. at 624.

1

In response to Hurst and the Florida Supreme Court’s subsequent

interpretation of that decision, the Florida Legislature repeatedly amended Section

921.141 to comply with those rulings. As relevant here, the amended law requires the

jury, not the judge, to “determine if the state has proven, beyond a reasonable doubt,

the existence of at least one aggravating factor.” Fla. Stat. § 921.141(2)(a) (2017). If

the jury concludes that no aggravating factor has been proven, the defendant is

“ineligible” for the death penalty. Id. § 921.141(2)(b)1. If on the other hand the jury

unanimously finds at least one aggravator, the defendant is “eligible for a sentence

of death.” Id. § 921.141(2)(b)2. In that event, the jury must make a sentencing

recommendation based on a weighing of three considerations: first, “[w]hether

sufficient aggravating factors exist”; 1 second, “[w]hether aggravating factors exist

which outweigh the mitigating circumstances found to exist”; and third, based on the

other two considerations, “whether the defendant should be sentenced to life

imprisonment without the possibility of parole or to death.” § 921.141(2)(b)2.a-c.

By assigning to the jury those latter three findings, the Florida Legislature

granted capital defendants procedural protections beyond what Hurst required. See

1 As construed by the Florida Supreme Court, “it has always been understood

that . . . ‘sufficient aggravating circumstances’ means ‘one or more.’” State v. Poole,

No. SC18-245, 2020 WL 3116597, at *10 (Fla. Jan. 23, 2020) (citing cases). Any

“suggestion that ‘sufficient’ implies a qualitative assessment of the aggravator—as

opposed simply to finding that an aggravator exists—is unpersuasive and contrary to

this decades-old precedent.” Id. at 11 (disapproving prior case holding that “the

existence of an aggravator and the sufficiency of an aggravator are two separate

findings, each of which the jury must find unanimously,” and explaining that,

“[u]nder longstanding Florida law, there is only one eligibility finding required: the

existence of one or more statutory aggravating circumstances”).

2

Hurst, 136 S. Ct. at 624 (requiring a jury to find “the existence of an aggravating

circumstance”); see also id. at 626 (Alito, J., dissenting) (“[T]he Court’s decision is

based on a single perceived defect, i.e., that the jury’s determination that at least one

aggravating factor was proved is not binding on the trial judge.”). Neither Section

921.141 nor the standard jury instructions require that the jury undertake those

determinations by any particular standard of proof.

2. In March 2012, Shawn Rogers murdered his cellmate, Ricky Dean Martin,

while serving a life sentence at the Santa Rosa Correctional Institution for a 2002

conviction for robbery with a firearm. Pet. App. 1. Correctional officers discovered

Martin lying on the floor of the cell with a prayer rug covering his head and most of

his body down to his waist. Id. at 2. Petitioner had tied a string around Martin’s neck,

bound Martin’s hands and feet, pulled his pants down, and placed a pair of boxers

over his head. Id. at 3. Martin had severe facial injuries and was unresponsive, so he

was transported to the prison’s on-site emergency room. Id.

Martin had a seizure at the on-site emergency room and a nurse determined

that he appeared to have severe brain damage. Id. Martin was gurgling blood in his

mouth. Id. When he was turned on his side to have the blood suctioned out, matter

or bodily fluids came out of his ear, and the nurse observed that part of one ear was

missing. Id. 3–4. He died nine days later. Id. at 4.

Petitioner was charged in Martin’s death with first-degree murder and

kidnapping to terrorize or inflict bodily harm. Id. The State sought the death penalty.

Id.

3

Petitioner chose to testify during the guilt phase and gave his version of the

events surrounding the murder. Id. at 5. During a verbal disagreement with Martin

over the cleanliness of their cell, Petitioner threw a combination of three or four

punches at Martin, and when Martin fell down, Petitioner started kicking him in the

face. Id. Petitioner stomped Martin’s head into the concrete six or seven times. Id.

Martin kept trying to get up, leaving bloody handprints on the cell wall. Id. at 6. Each

time, Petitioner knocked him back down and continued kicking him. Id.

Petitioner described a portion of the attack:

I kicked him in the face and said, [t]his is for Trayvon Martin,

motherf***er. I kicked him in the face again and said, [t]his is for

Trayvon Martin, motherf***er. I kicked him a third time and said, [t]his

is for Trayvon Martin, you pussy-ass f*** boy. I kicked him in the face a

fourth time and said, [t]his is for Martin Luther King. I kicked him in

the face a fifth time and said, [t]his is for Emmett Till and all the other

black people you crackers done killed.

Id. Martin never came at Petitioner or had a chance to fight back. Id. Petitioner told

the jury that “Mr. Martin is everything I despised in life: A snitch, a coward, and a

straight f*** boy. I got no love for [the] dude or no sympathy. I don’t feel bad about it.

I don’t feel no remorse. I’m not losing any sleep over the death of Ricky Martin and

neither is anybody else.” Id. at 7.

The jury found Petitioner guilty as charged of first-degree premeditated

murder or felony murder and kidnapping to terrorize or inflict bodily harm. Id. at 8.

3. At the penalty phase, the State presented records of Petitioner’s prior felony

convictions as well as his own admissions regarding those convictions, which were

made during a prior proceeding. Id. at 8–9. When Petitioner was a minor, he was

4

convicted as an adult for armed robbery with a firearm of an individual at a train

platform. Id. at 9. He was also convicted in 2002 of robbery with a firearm and

aggravated battery with a firearm for robbing a cab driver, whom he struck with the

firearm, knocking out a tooth. Id.

Martin’s murder was also not the first instance of Petitioner assaulting a fellow

inmate. In 2002, Petitioner tied up a cellmate and beat him; and he did the same to

a different cellmate three years later because that man “disrespected” him. Id. at 11.

In 2009, Petitioner stabbed an inmate in the head with a knife and kneed another in

the face. Id.

As evidence of Petitioner’s ability to plan and premeditate, one State expert

referred to a letter written by Petitioner to a judge in which Petitioner admitted that

he had decided to kill the next white man he came across. Id. In that letter Petitioner

wrote that he intended to kill Martin in the cell that night and only stopped his attack

because another inmate begged him to do so. Id. Petitioner bragged that he is a

“ruthless, cold-blooded, cutthroat, gangsta, blood killer, and killer of any and

everything that go against the Crips gang.” Id. Petitioner also stated that he is a

sociopath and has no remorse, regard, or regret for anything he has done in his life.

Id. at 11–12.

In mitigation, Petitioner offered testimony from eight inmates. Id. at 9. They

described Petitioner as “a humble soul,” peaceful, “a straight-up dude” with “a good

heart,” a good friend who gives advice, encourages them to become educated, to work

out, to eat healthy, and lends items to individuals who need them. Id. Those inmates

5

considered Petitioner a good friend and mentor. Id. Several experts also testified on

Petitioner’s behalf about his difficult upbringing and mental health, including his

mother’s drug addiction and his time in foster care. Id. at 9–10. Among other things,

Petitioner exhibited impulse control issues and had been diagnosed with major

depressive disorder, anxiety disorder, and antisocial personality disorder. Id. at 10.

4. At the charge conference, the defense made no objections to the aggravating

factors, the relevant jury instructions, or the verdict form. Id. at 12. After the

instructions were read to the jury, the judge asked if the parties had any objections

to the instructions as read, and both parties stated that they did not. Id.

Consistent with Florida’s post-Hurst statutory scheme, the jury was instructed

that it must “unanimously determine whether the aggravating factors alleged by the

State have been proven beyond a reasonable doubt.” Id. It was told to consider five

aggravating factors: (1) that Petitioner was previously convicted of a felony and under

sentence of imprisonment at the time he committed the murder; (2) that Petitioner

was previously convicted of felonies involving the use or threat of violence to another

person, specifically robbery with a firearm, aggravated battery with a firearm, and

attempted robbery; (3) that the murder was committed while Petitioner was engaged

in the commission of a kidnapping; (4) that the murder was especially heinous,

atrocious, or cruel (HAC); and (5) that the murder was committed in a cold,

calculated, and premeditated (CCP) manner without any pretense of moral or legal

justification. Id. Ultimately, the jury found unanimously that all five aggravating

factors were proven beyond a reasonable doubt. Id. The trial court also found that all

6

five aggravators were proven beyond a reasonable doubt and assigned significant

weight to aggravator three—the murder was committed while Petitioner was

engaged in the commission of a kidnapping—and great weight to the other four

aggravators. Id. at 12–13.

The jury was also instructed to consider whether Petitioner had established by

the greater weight of the evidence the existence of any of his proposed sixty-eight

mitigating circumstances. Id. at 13. And it was told that before it could recommend a

sentence of death it had to unanimously find that the aggravating factors existed,

that the aggravators were sufficient to impose death, that the aggravators

outweighed any mitigators, and that death was the appropriate sentence. Id. at 18.

After unanimously making those findings, the jury concluded that capital

punishment was the appropriate sentence, id., and the trial court sentenced

Petitioner to death. Id. at 19.

5. On direct appeal to the Florida Supreme Court, Petitioner argued, among

other things, that “the trial court erred in failing to instruct the jury that it must

determine beyond a reasonable doubt whether the aggravating factors were sufficient

to justify the death penalty and whether those factors outweighed the mitigating

circumstances.” Id. As the Florida Supreme Court noted, however, Petitioner

“concede[d] that he failed to request these instructions or object to the instructions,”

meaning its review was for “fundamental error,” id., a deferential standard of review

applicable in cases of procedural default. The court rejected Petitioner’s argument,

holding that his claim of “fundamental error” was “without merit.” Id.

7

In support of that ruling, the Florida Supreme Court explained that this

Court’s decision in Hurst v. Florida did not require that the determinations at issue

here—that the aggravating factors are sufficient to impose death and that the

aggravating factors outweigh the mitigating circumstances—be made beyond a

reasonable doubt. Pet. App. 20. The Florida Supreme Court had itself taken up that

question when considering amendments to the standard jury instructions in capital

cases and “ultimately declined to include a standard of proof for those

determinations.” Id. Indeed, the sufficiency and weight of the aggravators “are not

elements of the capital felony of first-degree murder,” and thus need not be found

beyond a reasonable doubt. Id. (quoting Foster v. State, 258 So. 3d 1248, 1252 (Fla.

2018)). The court affirmed.

6. Several months after the Florida Supreme Court’s decision, this Court

decided McKinney v. Arizona, 140 S. Ct. 702 (2020). There, the Court held that to

render a defendant death-eligible, a jury need only find the fact of an aggravating

factor; the jury need not perform the weighing of the aggravating and mitigating

circumstances or make the ultimate sentencing decision. Id. at 706–07. Those

determinations may instead constitutionally be performed by a judge. In other words,

the weight of the aggravators, like the sufficiency of the aggravators, is not an

element of capital murder under Apprendi and its progeny. See id.

8

REASONS FOR DENYING THE PETITION

I.

This Case is a Poor Vehicle for Resolving Petitioner’s Question

Presented.

In the proceeding below, Petitioner “concede[d] that he failed to request” the

jury instructions he now claims were constitutionally required, and similarly failed

to object to the instructions that were read to the jury. Pet. App. 19. As a result, the

issue here is whether the Florida Supreme Court erred in rejecting, as “without

merit,” Petitioner’s “claim[] that the trial court’s failure to instruct on the beyond a

reasonable doubt standard for proof constitutes fundamental error” for purposes of

Florida’s procedural default doctrine. Id.

That question does not warrant this Court’s review, and Petitioner does not

argue otherwise. See Pet i (framing question presented without reference to the

“fundamental error” standard applicable to unpreserved claims of instructional

error); id. at 12–13 (omitting any discussion of the “fundamental error” standard in

summary of reasons for granting the petition). Assuming that the separate question

purportedly raised in the Petition would otherwise warrant this Court’s review, the

Court should have the opportunity to address that issue in a case where the issue

was raised in the trial court and preserved for appellate review. What is more, it

should take up that question in a case where the answer will affect the eventual

outcome, and not where—as here—an unexcused procedural default renders the

defendant ineligible for relief as a matter of state law.

1. Under Florida law, jury instructions “are subject to the contemporaneous

objection rule and, ‘absent an objection at trial, can be raised on appeal only if

9

fundamental error occurred.’” Daniels v. State, 121 So. 3d 409, 417 (Fla. 2013)

(quoting Garzon v. State, 980 So. 2d 1038, 1042 (Fla. 2008)). Fundamental error, in

the capital context, is that rare error which “reaches down into the validity of the trial

itself to the extent that the jury’s recommendation of death could not have been

obtained without the assistance of the alleged error.” Smiley v. State, 295 So. 3d 156,

172 (Fla. 2020) (citing Card v. State, 803 So. 2d 613, 622 (Fla. 2001)) (emphasis

added). Florida’s appellate courts apply the State’s fundamental error doctrine “very

guardedly,” Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970), and place upon the

complaining party the “high burden” of establishing that the unpreserved error was

fundamental. Williams v. State, 209 So. 3d 543, 558 (Fla. 2017) (quoting Bailey v.

State, 998 So. 2d 545, 554 (Fla. 2008)).

Underlying Florida’s procedural default doctrine are the State’s important

interests in preventing gamesmanship and ensuring trial judges are apprised of their

mistakes before it is too late to correct them, thereby avoiding costly retrials. See, e.g.,

Harrell v. State, 894 So. 2d 935, 940–41 (Fla. 2005) (“contemporaneous objection rule

serves to avert the gamesmanship of allowing errors to go undetected and uncorrected

and thus preventing the appellate court from reviewing an actual decision of the trial

court”); State v. T.G., 800 So. 2d 204, 210 (Fla. 2001). Both interests are implicated

here.

At trial, Petitioner acquiesced to the jury instructions and failed to object on

the ground he would later raise in the Florida Supreme Court. In discussing the

instruction that jurors must unanimously find that the aggravators outweigh any

10

mitigators, defense counsel requested that the judge bold the word “unanimous” in

the written instruction document but otherwise took no issue with the instruction.

R. 6908–09. Then, asked at the close of the charge conference whether Petitioner was

“good with the jury instructions,” defense counsel responded “I am.” R. 6918. And the

trial judge repeated that inquiry after verbally instructing the jury, inquiring

whether either party had any “objections to the instructions and verdict form.” R.

7024. Petitioner again declined to object. Id.

Petitioner provides no justification for not raising his claim in the trial court.

Notably, the principal cases on which Petitioner relies (Winship and Apprendi) were

decided in 1970 and 2000—long before his own sentencing hearing in 2017. See Pet.

1–3, 13–14. Accordingly, it is undisputed that this case squarely implicates the

policies underlying Florida’s contemporaneous objection rule, which “prohibits

counsel from attempting to gain a tactical advantage by allowing unknown errors to

go undetected and then seeking a second [sentencing hearing] if the first decision is

adverse to the client.” See T.G., 800 So. 2d at 210.

Petitioner’s conceded state-law procedural default, see Pet. App. 19, makes this

case a poor vehicle for resolving the federal constitutional question Petitioner

presents for this Court’s review. Not only should Petitioner not be rewarded for his

failure to object at trial, but the narrow issue in this case, as Petitioner conceded in

the proceeding below, is whether the unobjected-to jury instruction was “fundamental

error” under Florida law. See Pet. App. 19. Petitioner does not ask this Court to

resolve that state-law issue; and in his Petition, he does not even attempt to argue

11

that his “sentence could not have been obtained without the assistance of the alleged

error,” Smiley, 295 So. 3d at 172; see Pet. 12–33. Accordingly, Petitioner offers no

basis for disturbing the Florida Supreme Court’s holding that his belated claim of

“fundamental error” is “without merit.” See Pet. App. 19.

2. Assuming arguendo that the state trial court erred in not sua sponte offering

an instruction Petitioner did not ask for—and that no court has ever deemed

necessary in this context—any such determination from this Court would not affect

Petitioner’s sentence. That is because Petitioner cannot meet his “high burden,”

under Florida law, of showing that “the jury’s recommendation of death could not

have been obtained without the assistance of the alleged error,” Smiley, 295 So. 3d at

172; see Williams, 209 So. 3d at 558.

Of particular relevance, ample record evidence supports the jury’s

determination that Petitioner perpetrated a heinous, atrocious, and cruel murder,

and that he carried out that crime in a cold, calculating, and premeditated manner.

See Pet. App. 2–8; cf. Larkins v. State, 739 So. 2d 90, 95 (Fla. 1999) (calling HAC and

CCP “two of the most serious aggravators set out in the statutory sentencing

scheme”). In addition, it is undisputed that Petitioner expressed a total lack of

remorse for the murder, Pet. App. 7, was motivated by racial animus, id. at 6, and

had attacked other inmates, including cellmates, on at least three occasions. Id. at

11. In the years leading up to this murder, for instance, Petitioner had “tied up his

cellmate and beat him up,” “again tied up a [second] cellmate and beat him,” and

“stabbed another inmate in the head with a knife and kneed another inmate in the

12

face.” Id. Each of these factors went directly to the five aggravating circumstances

found by the jury, see id. at 12, and was relevant to the sufficiency and weighing

questions.

Not only can Petitioner not demonstrate prejudice under his unique facts, the

better view is that “[i]t would [have] mean[t] nothing . . . to tell the jury that” certain

“value call[s]”—like whether aggravators outweigh mitigators and whether the

defendant deserves mercy—must be found “beyond a reasonable doubt,” see Kansas

v. Carr, 136 S. Ct. 633, 642 (2016) (emphasis added), which is presumably why

Petitioner focused on other aspects of the jury instruction—such as the unanimity

requirement—in the trial court.

In short, Petitioner cannot show “fundamental error” under state law—and

therefore would not be entitled to any relief even if his federal constitutional claim

had merit. At a minimum, this Court should not be asked to resolve the constitutional

question Petitioner presents in a case where the issue was not raised in the trial court

or preserved for appellate review.

II.

The Decision Below Does Not Conflict With This Court’s Precedents.

1. Petitioner does not assert that his question presented implicates a division

among the lower courts. See Pet. 12–13. Instead, he claims that “[t]he Florida

Supreme Court’s decision conflicts with this Court’s decisions, including the Apprendi

line of cases.” Id. at 13 (alterations omitted); see id. at 13–23. Petitioner is incorrect.

As threshold matter, none of the cases Petitioner cites addressed, and none

had any occasion to address, the precise question at issue in this case: whether a trial

13

court commits “fundamental error” within the meaning of Florida law when it does

not sua sponte instruct the jury that it should apply the beyond-a-reasonable-doubt

standard to the kind of normative sentencing factors at issue here. See Pet. App. 19.

That consideration, standing alone, refutes Petitioner’s claim that “the Florida

Supreme Court’s decision conflicts with this Court’s decisions.” Pet. 2.

2. Even putting aside the narrow holding of the decision below, the cases

Petitioner cites did not conclude that the beyond-a-reasonable doubt standard applies

to

non-factual

determinations

intended

to

guide

the

jury’s

sentencing

recommendation. See Pet. 13–18. To the contrary, those cases evince this Court’s

understanding that that standard of proof is limited to factual findings. By its terms,

Winship applies the beyond-a-reasonable-doubt standard only to “the factfinder.” 397

U.S. at 363–64 (quotation marks omitted); see also id. (referencing “the trier of fact”).

The Due Process Clause, the Court there held, “protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” Id. at 364 (emphasis added); see also

Alleyne v. United States, 570 U.S. 99, 103 (2013) (“Any fact that, by law, increases the

penalty for a crime is an ‘element’ that must be submitted to the jury and found

beyond a reasonable doubt.”).

Consistent with Winship, this Court in Apprendi expressly and repeatedly

explained that the beyond-a-reasonable-doubt standard of proof applies to “facts.” For

example, the Court:

•

described the “novelty of a legislative scheme that removes the jury from the

determination of a fact that, if found, exposes the criminal defendant to a

14

penalty exceeding the maximum he would receive if punished according to the

facts reflected in the jury verdict alone,” Apprendi v. United States, 530 U.S.

466, 482–83 (2000) (first emphasis added);

•

required the States to “at least adhere to the basic principles undergirding the

requirements to trying to a jury all facts necessary to constitute a statutory

offense, and proving those facts beyond reasonable doubt,” id. at 483–84

(emphases added);

•

referenced the jury’s “assessment of facts,” id. at 490 (emphasis added)

(quotation marks omitted); and

•

explained that “constitutional limits exist to States’ authority to define away

facts necessary to constitute a criminal offense” and “a state scheme that keeps

from the jury facts that ‘expos[e] [defendants] to greater or additional

punishment’ may raise serious constitutional concern.” Id. at 486 (emphases

added; internal citation omitted).

In short, Apprendi did not hold that the beyond-a-reasonable-doubt standard should

be extended to non-factual normative judgments of the kind at issue here, and this

Court’s statements concerning that standard of proof undermine rather than support

Petitioner’s claim.

3. This Court’s cases applying Apprendi to the capital sentencing context

likewise did not hold that the due process clause requires the jury to determine,

beyond a reasonable doubt, that normative considerations support the imposition of

the death penalty. In Ring, for example, this Court explained that “[c]apital

defendants, no less than noncapital defendants . . . are entitled to a jury

determination of any fact on which the legislature conditions an increase in their

maximum punishment.” 536 U.S. at 589 (emphasis added). So too in Hurst, where

this Court reiterated that the sentencing scheme in Ring violated the defendant’s

right to have “a jury find the facts behind his punishment.” 136 S. Ct. at 621

15

(emphasis added); see also id. at 619 (“The Sixth Amendment requires a jury, not a

judge, to find each fact necessary to impose a sentence of death.” (emphasis added)).

In sum, the decision below does not conflict with this Court’s precedents. None

of the cases Petitioner cites held that a jury must find, beyond a reasonable doubt,

that aggravating factors outweigh mitigating circumstances or are sufficient to

warrant the imposition of capital punishment; and still less did those cases hold that

a trial court commits “fundamental error” under Florida law insofar as it does not sua

sponte provide some such instruction. What is more, the reasoning of those cases

expressly ties the beyond-a-reasonable-doubt standard to factfinding of a kind not at

issue here—and thus undermines rather than supports Petitioner’s claim.

III.

The Decision Below Is Correct.

In rejecting Petitioner’s claim of “fundamental error,” the Florida Supreme

Court explained that Petitioner failed to show any instructional error—fundamental

or otherwise. See Pet. App. 19-21. The court was right to hold that Petitioner’s claim

of “fundamental error” is “without merit,” see Pet. App. 19, and its opinion correctly

applied this Court’s precedents to Florida’s capital sentencing scheme.

1. As the Florida Supreme Court explained, “the Hurst penalty phase findings”

at issue here—i.e., whether the aggravators are sufficient and whether those

aggravators outweigh the mitigators—“are not elements of the capital felony of firstdegree murder.” Pet. App. 20 (quoting Foster, 258 So. 3d at 1252). “Rather, they are

findings required of a jury: (1) before the court can impose the death penalty for firstdegree murder, and (2) only after a conviction or adjudication of guilt for first-degree

16

murder has occurred.” Id. (emphases in original). That is, they are sentencing factors

intended to make the imposition of capital punishment less arbitrary by guiding the

exercise of the jury’s discretion within the applicable sentencing range.

The plain text of Florida’s death-penalty statute supports that reading:

If the jury . . . [u]nanimously finds at least one aggravating factor, the

defendant is eligible for a sentence of death and the jury shall make a

recommendation to the court as to whether the defendant shall be

sentenced to life imprisonment without the possibility of parole or to

death.

Fla. Stat. § 921.141(2)(b)(2).

2. In light of this Court’s recent decision in McKinney v. Arizona, 140 S. Ct.

702 (2020), Petitioner’s contrary argument fails on its own terms. Petitioner frames

the constitutional question as whether the sufficiency and weighing of aggravators

can be characterized as “elements” or their functional equivalents. See Pet. 14–18.

But Petitioner does not address McKinney, which rejected the theory that a jury must

weigh aggravators and mitigators, and thus made clear that a determination that

aggravators outweigh mitigators is not an “element” of capital murder for purposes

of Apprendi and its progeny. And, as explained below, the statutory sufficiency

requirement adds nothing to Petitioner’s argument. Accordingly, McKinney rejects

an essential predicate of Petitioner’s claim.

In McKinney, a capital defendant challenged his death sentence because the

sentencing judge had failed to consider his posttraumatic stress disorder as a

mitigating factor, thereby violating Eddings v. Oklahoma, 455 U.S. 104 (1982)

(holding that a capital sentencer may not refuse as a matter of law to consider

17

relevant mitigating evidence). On remand from the Ninth Circuit, the Arizona

Supreme Court performed its own de novo weighing of the aggravators and

mitigators, including the defendant’s PTSD, and upheld the sentence. McKinney, 140

S. Ct. at 706. In the state supreme court’s independent judgment, the balance of the

aggravators and mitigators warranted the death penalty. Id.

On certiorari review, the defendant argued that “a jury must resentence him”

because a court “could not itself reweigh the aggravating and mitigating

circumstances.” Id. This Court rejected that claim. Though it recognized that “[u]nder

Ring and Hurst, a jury must find the aggravating circumstance that makes the

defendant death eligible,” it observed that neither decision requires that the jury

make additional determinations necessary before a sentencer may exercise its

discretion and impose death. Id. at 707. “[I]mportantly,” the Court stressed, “in a

capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as

opposed to a judge) is not constitutionally required to weigh the aggravating and

mitigating circumstances or to make the ultimate sentencing decision within the

relevant sentencing range.” Id.; see also id. at 708 (explaining that “Ring and Hurst

did not require jury weighing of aggravating and mitigating circumstances”).

Because the Sixth Amendment permits the “weigh[ing] [of] aggravating and

mitigating” evidence by judges, id. at 707, the determination that aggravators

outweigh mitigators cannot be considered an “element” of the offense. And because

that determination is not an element, it is not subject to the beyond-a-reasonabledoubt standard. See Alleyne, 570 U.S. at 107 (“The touchstone for determining

18

whether a fact must be found by a jury beyond a reasonable doubt is whether the fact

constitutes an ‘element’ or ‘ingredient’ of the charged offense.”). In other words,

McKinney rejects an essential premise of Petitioner’s argument—that the weighing

of aggravators and mitigators is either an “element” or the “functional equivalent” of

an element. See Pet. i, 2, 13–14.

The outcome is not different simply because Florida has chosen to assign the

weighing determination to the jury, rather than the judge as it constitutionally could

have. 2 If the Sixth Amendment permits a judge to conduct the tasks of determining

weighing, and further permits the judge to make that determinations by some lesser

standard (or none at all), nothing prevents the State from re-allocating that task to

the jury by the same standard of proof. Any contrary theory would punish States for

being more generous in extending procedural protections to capital defendants by

forcing them to extend all available procedural protections. But because the weight

of the aggravators is not an element of a capital offense, that determination need not

be found by a jury and, correspondingly, need not be found beyond a reasonable doubt.

See McKinney, 140 S. Ct. at 707–08. 3

2 That a handful of States have elected to go further—tasking a jury with

finding the sufficiency and weighing beyond a reasonable doubt, see Pet. 29—does not

alter the dictates of the Fifth and Sixth Amendment in capital cases.

3 Even if it is unclear whether McKinney disposes of claims like Petitioner’s,

any such doubt provides an additional basis for denying review. Because McKinney

post-dated the decision below, the Florida Supreme Court did not analyze its

applicability. This Court therefore lacks the benefit of a reasoned lower court analysis

of a critical issue germane to Petitioner’s claim: whether and to what extent

McKinney’s holding that a jury need not determine that aggravators outweigh

mitigators impacts the related question whether such normative determinations

must be made beyond a reasonable doubt. Thus, McKinney, at a minimum, shows

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Finally, the statutory requirement that the jury weigh, among other

considerations, “[w]hether sufficient aggravating factors exist,” § 921.141(2)(b)(2)(a),

adds nothing to Petitioner’s argument. As construed by the Florida Supreme Court,

“it has always been understood that . . . ‘sufficient aggravating circumstances’ means

‘one or more.’” State v. Poole, SC18-245, 2020 WL 3116597, at *10 (Fla. Jan. 23, 2020)

(citing cases). Put differently, “[u]nder longstanding Florida law, there is only one

eligibility finding required: the existence of one or more statutory aggravating

circumstances.” Id. at 11. And it is undisputed that, in this case, that requirement

was satisfied when the jury unanimously found five aggravating circumstances

beyond a reasonable doubt. See Pet. App. 12-13.

3. For reasons this Court has already explicated, it would make little sense to

apply the beyond-a-reasonable-doubt standard to normative determinations of the

kind at issue here. In Carr, this Court “doubt[ed]” that it is “even possible to apply a

standard of proof to the mitigating-factor determination.” 136 S. Ct. at 642. The Court

reasoned that “[i]t is possible to do so for the aggravating-factor determination,” on

the one hand, because the existence of an aggravator “is a purely factual

determination.” Id. Whether mitigation exists, on the other hand, “is largely a

that further percolation is warranted before this Court steps in to resolve the claim

Petitioner raised for the first time on appeal. See California v. Carney, 471 U.S. 386,

400 n.11 (1985) (Stevens, J., dissenting) (“The process of percolation allows a period

of exploratory consideration and experimentation by lower courts before the Supreme

Court ends the process with a nationally binding rule.”); McCray v. New York, 461

U.S. 961, 963 (1983) (Stevens, J., respecting denial of certiorari) (explaining that

percolation “allow[s] . . . the issue [to] receive[] further study” in the lower courts

“before it is addressed by this Court”).

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judgment call”—or “perhaps a value call”—just as the “ultimate question whether

mitigating circumstances outweigh aggravating circumstances is mostly a question

of mercy.” Id. Thus, “[i]t would mean nothing . . . to tell the jury that the defendants

must deserve mercy beyond a reasonable doubt; or must more-likely-than-not deserve

it.” Id.

In

response,

Petitioner

contends

that

the

sufficiency

and

weight

determinations are amenable to the beyond-a-reasonable-doubt standard because the

standard merely goes to a decisionmaker’s “subjective state of certitude.” Pet. 29

(quoting Winship, 397 U.S. at 364). But Petitioner plucks that quote out of context,

and in doing so alters its import. The full sentence reads: “To this end, the reasonabledoubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of

reaching a subjective state of certitude of the facts in issue.’” Winship, 397 U.S. at 364

(emphasis added) (quotation marks omitted). Facts can be determined beyond a

reasonable doubt; by contrast, whether to show mercy, or whether mitigators are

outweighed by aggravators, is not susceptible to a quantum of proof. See Carr, 136 S

Ct. at 642.

4. Contrary to Petitioner’s urging, Carr is not in “analytical tension” with this

Court’s due-process precedents. See Pet. 4, 31–32. Historically and today, the beyonda-reasonable-doubt standard ensures that the prosecution must “persuad[e] the

factfinder at the conclusion of the trial of [the defendant’s] guilt beyond a reasonable

doubt.” Winship, 397 S. Ct. at 364. This safeguard preserves the “moral force of the

criminal law” because it does not “leave[] people in doubt whether innocent men are

21

being condemned.” Id. at 364. But sufficiency and weighing do not go to whether the

defendant is guilty of a capital offense—that question is answered when the jury finds

the existence of an aggravated first-degree murder. See McKinney, 140 S. Ct. at 707;

Kansas v. Marsh, 548 U.S. 163, 175–76 (2006). Sufficiency and weighing instead go

to the appropriateness of the penalty.

Petitioner concedes that evaluating the sufficiency and weight of aggravators

“involve[s] normative judgment.” E.g., Pet. 1, 31, 32 (emphasis added). Such

“normative judgment[s],” of course, are not “facts.” A fact is “something that has

actual existence” or, perhaps more appropriately in this context, is “a piece of

information presented as having objective reality.” “Fact,” Merriam-Webster’s

Dictionary, https://www.merriam-webster.com/dictionary/fact. Facts have their basis

in observable truths about the world. A fact either is or isn’t; although a person’s

perception of facts may be open to debate, facts are objectively discernable. By

contrast, normative judgments are opinions. As such, they turn on the subjective

proclivities of individual decisionmakers. In short, they are questions involving

discretion.

As a consequence, a jury is not better situated to make normative

determinations than a judge. Indeed, sufficiency and weighing no more need be

conducted by a jury than the traditional in-range sentencing discretion performed by

judges throughout the nation countless times each day. As McKinney recognized,

Apprendi expressly reserved for judges the power to exercise that type of discretion.

McKinney, 140 S. Ct. at 707 (“[T]his Court carefully avoided any suggestion that ‘it is

22

impermissible for judges to exercise discretion—taking into consideration various

factors relating both to offense and offender—in imposing a judgment within the

range prescribed by statute.’” (quoting Apprendi, 530 U.S. at 481)).

Petitioner invokes (Pet. 26–27) United States v. Gaudin, 515 U.S. 506 (1995),

as an example of this Court categorizing as an “element” some non-factual

determination. But the materiality element at issue in Gaudin was much more akin

to a fact than a normative judgment. Whether a false statement under 18 U.S.C. §

1001 has “a natural tendency to influence, or [be] capable of influencing, the decision

of the decision-making body to which it was addressed” is capable of objective

determination. See Gaudin, 515 U.S. at 509. By way of example, when a public

company reports that its earnings have increased tenfold over last quarter, that is a

statement that, in the course of human experience, investors have relied upon. Cf.

TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976).

Gaudin also has little to say about this issue because its holding was

predicated on the view that juries have historically decided questions involving

“application-of-legal-standard-to-fact.” Gaudin, 515 U.S. at 512. But weighing does

not involve the application of law to fact. Indeed, Florida law does not provide jurors

a legal standard for making those determinations. Jurors are instead told merely that

the weighing “is not a mechanical or mathematical process” and that “each individual

juror must decide what weight is to be given to a particular factor or circumstance.”

Fla. Std. Jury Instr. (Crim.) 7.11.

23

5. Petitioner’s substantial expansion of the Apprendi doctrine would have

significant and troubling practical implications, including for non-capital sentencing.

The federal statute governing criminal sentences, for example, provides that “[t]he

court shall impose a sentence sufficient, but not greater than necessary, to comply

with” certain statutorily enumerated sentencing factors. 18 U.S.C. § 3553(a). Given

that a federal sentence must, by statute, be supported by a normative judgment that

the chosen sentence is “not greater than necessary” to effectuate “the purposes set

forth in” the statutory sentencing factors, see id., must that “finding” be made by a

jury beyond a reasonable doubt? And if not, why is that normative judgment any

different than the moral determination at issue here—i.e., that aggravating factors

outweigh mitigating circumstances?

Notably, Petitioner himself appears unwilling to accept the practical

consequences of his own theory. Petitioner asks this Court to rule that two

determinations—sufficiency and weighing—must be made beyond a reasonable

doubt. But the statute also provides that the trial court may not impose death unless

the jury further determines, based on those two factors, that death is the appropriate

sentence. See Fla. Stat. § 921.141(2)(b)(2)(c), (3)(a)(2) (requiring the jury to determine,

based on sufficiency and weighing, “whether the defendant should be sentenced to

life imprisonment without the possibility of parole or to death,” and providing that

the court may sentence the defendant to death if, and only if, “the jury has

recommended a sentence of . . . [d]eath”). Petitioner nevertheless does not go so far

as to say that that the jury’s ultimate recommendation that “the defendant should be

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sentenced to . . . death,” § 921.141(2)(b)(2)(c), must be made beyond a reasonable

doubt. And for good reason: “Any argument that the Constitution requires that a jury

impose the sentence of death,” this Court has explained, “has been soundly rejected

by prior decisions of this Court.” Clemons v. Mississippi, 494 U.S. 738, 745 (1990); see

also McKinney, 140 S. Ct. at 707.

Petitioner’s proposed extension of the Apprendi doctrine need not redound to

the benefit of criminal defendants. If state laws like the one Petitioner asks this Court

to strike down—i.e., laws that seek to protect criminal defendants by reducing the

risk of arbitrariness and guiding a sentencing authority’s discretion to impose

particularly harsh punishments—give rise to otherwise non-existent due process

problems, lawmakers may well respond by repealing, rolling back, or declining to

create such protections in the first place. Cf. Pet. 2–3 (attempting to distinguish Ring

by asserting that, under the Arizona statute at issue there, “the court was required to

impose death” if a statutorily eligible capital defendant “failed to meet [his] burden”

to “convince the sentencer to select a lesser punishment”) (emphasis added). That is

one reason why this Court has “warned against wooden, unyielding insistence on

expanding the Apprendi doctrine far beyond its necessary boundaries.” Oregon v. Ice,

555 U.S. 160, 172 (2009) (quotation marks omitted); see Ring, 536 U.S. at 613

(Kennedy, J., concurring).

CONCLUSION

The petition for a writ of certiorari should be denied.

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Respectfully submitted,

ASHLEY MOODY

Attorney General of Florida

AMIT AGARWAL

Solicitor General

*Counsel of Record

JEFFREY PAUL DESOUSA

Deputy Solicitor General

OFFICE OF THE ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL 32399-1050

(850) 414-3681

amit.agarwal@myfloridalegal.com

jeffrey.desousa@myfloridalegal.com

Counsel for Respondent

AUGUST 14, 2020

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