Opposition Brief — Rodney Renard Newberry, Petitioner v. Florida

CAPITAL CASE

No. 20-5072

Int

Supreme Court of the Quited States

RODNEY RENARD NEWBERRY, Petitioner,

Uv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

ASHLEY MOODY

Attorney General of Florida

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

CHARMAINE M. MILLSAPS

Senior Assistant Attorney General

OFFICE OF THE ATTORNEY

GENERAL

CAPITAL APPEALS

THE CAPITOL, PL-01

TALLAHASSEE, FL 32399-1050

(850) 414-3584

capapp@myfloridalegal.com

CAPITAL CASE

QUESTION PRESENTED

Whether this Court should grant review of a decision of the Florida

Supreme Court rejecting a claim of fundamental error in the state’s

standard penalty phase jury instructions and holding that neither

sufficiency of the aggravating factors nor weighing of the aggravating

factors against the mitigating circumstances are elements of the crime of

capital murder.

TABLE OF CONTENTS

PAGE(S)

QUESTION PRESENTED .........0.0.0 200.0000. cc ce ec ee eee eens i

TABLE OF CONTENTS ... 2.2.0. ee eee eee eees i

TABLE OF AUTHORITIES ..........0 0.00.0 eens iii

OPINION BELOW. .........0 20.0... 2c eee eee e tee eens viii

JURISDICTION... 0.0... eee ee ee eee e ee eeee 1

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

STATEMENT OF THE CASE AND PROCEDURAL HISTORY................ 2

REASONS FOR DENYING THE WRIT............ 0.0.0.0 2 0c cece eee ees 5

ISSUE T .. 0. ene eee e een e eee enna 5

WHETHER THIS COURT SHOULD GRANT REVIEW OF

A DECISION OF THE FLORIDA SUPREME COURT

REJECTING A CLAIM OF FUNDAMENTAL ERROR IN

THE STATE’S STANDARD PENALTY PHASE JURY

INSTRUCTIONS AND HOLDING THAT NEITHER

SUFFICIENCY OF THE AGGRAVATING FACTORS NOR

WEIGHING OF THE AGGRAVATING FACTORS

AGAINST THE MITIGATING CIRCUMSTANCES ARE

ELEMENTS OF THE CRIME OF CAPITAL MURDER.

The Florida Supreme Court’s decision in this case .......... 6

Issues are solely a matter of state law .................... 7

Florida’s death penalty statute................0 0.0002 eee 8

No conflict with this Court’s Sixth Amendment jurisprudence 10

No conflict with the federal circuit courts or

state courts of last resort..........-.... 0.00 cee eeeeeees 13

CONCLUSION... 1.2.0.0... cee eee nent n ences 23

il

TABLE OF AUTHORITIES

CASES PAGE(S)

Alleyne v. United States,

570 U.S. 99 (2018) 2. cence e eens 5,17,18

Apprendi v. New Jersey,

5380 U.S. 466 (2000)... ce tee eee 12,138,16,17

Archer v. State,

293 So.3d 455 (Fla. 2020)... 0. nt ee eee eens 9

Blakely v. Washington,

542 U.S. 296 (2004) 2... ee eee eee eee eae 13

Braxton v. United States,

500 U.S. 344 (1991)... cn eee eee cena 18

Bright v. State,

___So.8d___, 2020 WL 1592942 (Fla. Apr. 2, 2020).........0.... 0.0000. e eee 9

Buchanan v. Angelone,

522 U.S. 269 (1998) 22. eee eee eee e eee ena 19

California v. Ramos,

463 U.S. 992 (1983) 2... eee eee een ene eee e ene eees 15

Clemons v. Mississippi,

494 U.S. 7388 (1990) .. ce ee eee ee cette eee eee 11

Doty v. State,

___So.38d__, 2020 WL 717815 (Fla. Feb. 13, 2020) ........0.0...0.000........ 9

Evans v. State,

226 So.3d 1 (Miss. 2017), cert. denied,

Jordan v. Mississippi, 1388 S.Ct. 2567 (2018) (Nos. 17-7158, 17-7245) .......... 15

Ex parte Bohannon,

222 So.3d 525 (Ala. 2016), cert. denied,

Bohannon v. Alabama, 137 S.Ct. 831 (2017) (No. 16-6746)................00. 15

Fox Film Corp. v. Muller,

296 U.S. 207 (1935) 2... eee eee teen teen eeee 7

Gregg v. Georgia,

428 U.S. 153 (1976) 00 eee cent e eee eeenaes 21

Hannon v. Sec'y, Fla Dep’t of Corr.,

716 Fed. Appx. 848 (11th Cir. 2017)... 2.2.02 eee 8

ili

Hurst v. Florida,

186 S.Ct. 616 (2016)... 2. eee ee eee passim

Hurst v. State,

202 So.3d 40 (Fla. 2016)... 0.0.0... e ccc cece eee eeeeceeeeeeeeuaecees 2,8

In re Standard Jury Instructions in Criminal Cases - Report No. 2010-01 &

Standard Jury Instructions in Civil Cases - Report No. 2010-01,

52 So.3d 595 (Fla. 2010)... 0.2... ce eee cece ee eceuteccceueeuseuteeeas 19

In re Winship,

397 U.S. 358 (1970)... 0. ce ce cece cence cece cece cacavececececeeeeees 19,21

Jeremias v. State,

412 P.3d 43 (Nev. 2018),

cert. denied, Jeremias v. Nevada, 139 S.Ct. 415 (2018) (No. 18-5331). .......... 15

Johnson v. Fankell,

520 U.S. 911 (1997) 20 ene eee e eee eens 10

Johnson v. United States,

559 U.S. 138 (2010) 20. ee ee cece eee ene 5,9

Johnson v. Williams,

568 U.S. 289 (2018) .. 0. ee ene ence ene eens 7

Kansas v. Carr,

136 S.Ct. 633 (2016)... ee ee nent eee e ae ennee passim

Kansas v. Marsh,

548 U.S. 163 (2006) 0... eee eee eee eees 16,20

Knight v. State,

286 So.3d 147 (Fla. 2019)... eee eee ee eees 7

Leonard v. State,

73 N.E.3d 155 (ind. 2017) 2... 2. eee eee eee neces 15

McKinney v. Arizona,

140 S.Ct. 702 (2020)... ee eee eens passim

Michigan v. Long,

463 U.S. 1082 (1983) 0... 0c cece cece cece ccueucecueeaeututeteetntnrees 7

Neder v. United States,

527 U.S. 1 (1999) 2... eee eee eee eee eens 8,13

Newberry v. State,

214 So.3d 562 (Fla. 2017)... 2.0.0. c cece ccc eee cee eevee cusecceceeueeueees 2

iv

Newberry v. State, .

288 So.3d 1040 (Fla. 2019)... 0... eee eens passim

Owen v. State,

___ §0.3d ____, 2020 WL 3456746 (Fla. June 25, 2020)...................050. 10

Ramroop v. State,

214 So.3d 657 (Fla. 2017)... 0... cet eee eee eee nena 8

Rauf v. State,

145 A.3d 430 (Del. 2016)... 2. eee cece 16

Reed v. State,

837 So.2d 366 (Fla. 2002)... 0... eee eee eens 8

Reynolds v. State,

251 So.3d 811 (Fla. 2018),

cert. denied, Reynolds v. Florida, 139 S.Ct. 27 (2018) .................000. 18-19

Ring v. Arizona,

5386 U.S. 584 (2002) .. 0. eee eee ene eee eens 11,16,21

Roberts v. State,

242 So.3d 296 (Fla. 2018). 2... 2. ce cee eee eee eeeees 7

Rockford Life Ins. Co. v. Ill. Dep’t of Revenue,

482 U.S. 182 (1987) 2... ce ee eee teen eee e eee e nena 14

Rogers v. State,

285 So.3d 872 (Fla. 2019),

pet. for cert. filed May 15, 2020, Rogers v. Florida, No. 19-8473 ........... passim

Saniiago-Gonzalez v. State,

___So.3d. __, 2020 WL 3456751 (Fla. June 25, 2020)....................0.. 9

Special v. W. Boca Med. Ctr.,

160 So.8d 1251 (Fla. 2014). 2... eee cece teenies 19

Spencer v. State,

615 So.2d 688 (Fla. 1998)... 2... ee ee ee eee eens 3,18

State v. Lotter, 917 N.W.2d 850 (Neb. 2018),

cert. denied, Lotter v. Nebraska, 139 S.Ct. 2716 (2019) (No. 18-8415) .......... 15

State v. Mason,

108 N.E.3d 56 (Ohio 2018),

cert. denied, Mason v. Ohio, 139 S.Ct. 456 (2018) (No. 18-5308)...........0... 15

State v. Poole,

297 So.3d 487 (Fla. 2020),

pet. for cert. filed August 28, 2020, Poole v. Florida, No. 20-250. .......... passim

Siate v. Wood,

580 S.W.3d 566 (Mo. 2019), cert. denied,

Wood v. Missouri, __ S.Ct. , 2020 WL 1906578 (2020) (No. 19-967).... 9,15,16

Tutlaepa v. California,

512 U.S. 967 (1994) 20 ce eee cece eee eeenees 21

Underwood v. Royal,

894 F.3d 1154 (10th Cir. 2018),

cert. denied, Underwood v. Carpenter, 1389 S.Ct. 1842 (2019) (No. 18-7442) ..... 14

United States v. Gabrion,

719 F.3d 511 (6th Cir. 2018) (en banc) .... 2.20... 0.0.0. ee 14,15,20

United States v. Gaudin,

515 U.S. 506 (1995) 2... cee ee eee nena 12,13

Washington v. Recuenco,

548 U.S. 212 (2006)... 0. ec cee ccc cece cece ceeececceucuerenesuees 13

Zant v. Stephens,

462 U.S. 862 (1988) .. 2... eee nee eens 15,21

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VI... 0.0.0.0... 0.0 ee eens 1

U.S. Const. Amend. XIV ......... 0.020. ee eee eens 1

STATUTES

18 U.S.C. § 3598(e). 2. ete eee eens 14,21

18 U.S.C. § 3593(c). 0. ne eee eee ees 14,21

28 U.S.C. § 1257(a). 2. ee eee nee n eee 1

28 U.S.C. § 2101(d). 2. eee eee eee eens 1

§ 921.141(2)(b)(1), Fla. Stat. (2020)........... 0.0... ee eee 8,18

§ 921.141(2)(b)(2), Fla. Stat. (2020)........... 0.0.2. ee eee eee 8,18

Chapter 2017-1, LAWS OF FLA... 0... eee eens 8

vi

RULES

Sup. Ct. R. 10... 0. nent ene e ee eeee 10,13

Sup. Ct. BR. 18.8. oe cee ce ac co ibin 6 he Bei HW ee ee eee 1

vii

Int

Supreme Court of the Gnited States

No. 20-5072

RODNEY RENARD NEWBERRY, Petitioner,

U.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The Florida Supreme Court’s opinion is reported at Newberry v. State, 288 So.3d

1040 (Fla. 2019).

viii

JURISDICTION

On December 12, 2019, the Florida Supreme Court affirmed the death sentence

imposed following the resentencing. Newberry v. State, 288 So.3d 1040 (Fla. 2019)

(SC18-1133).' On December 27, 2019, Newberry filed a motion for rehearing. On

February 11, 2020, the Florida Supreme Court denied the rehearing. On July 9, 2020,

Newberry filed a petition for a writ of certiorari in this Court. The petition was timely.

See Sup. Ct. R. 13.3; 28 U.S.C. § 2101(d).? This Court has jurisdiction under 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution, which provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the

crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

U.S. Const. Amend. VI.

The Fourteenth Amendment to the United States Constitution, section one,

which provides:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

§ 1, U.S. Const. Amend. XIV.

! The Florida Supreme Court’s docketing is available online under case number SC18-1133.

2? This Court, in response to the COVID-19 outbreak, extended the deadline to timely file a

petition from 90 days to 150 days.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Newberry and two younger co-perpetrators targeted the victim at a local club in

Jacksonville, Florida. Newberry v. State, 214 So.3d 562, 563-65 (Fla. 2017). Newberry

shot the victim twelve times with a AK-47 before the victim even had the opportunity

to give his property to Newberry, as Newberry had ordered him to do. Id. at 564. The

jury convicted Newberry of both first-degree premeditated and first-degree felony

murder, as well as armed robbery with a firearm and found that Newberry had

personally discharged the firearm. Jd. at 565. The first jury recommended the death

penalty by a vote of eight to four. Jd. at 566. The trial court originally found two

aggravating factors, including the prior violent felony aggravator based on Newberry’s

four prior violent felony convictions, and sentenced Newberry to death. Id. at 566 & n.6

Newberry appealed his convictions and death sentence to the Florida Supreme

Court. The Florida Supreme Court affirmed the convictions but vacated the death

sentence and remanded for resentencing. Newberry, 214 So.3d at 563, 568. The Florida

Supreme Court found that the evidence was sufficient to support the first-degree

murder conviction and affirmed the convictions. Jd. at 567. Newberry raised several

penalty phase issues including an argument that his death sentence violated Hurst v.

State, 202 So.3d 40 (Fla. 2016). The Florida Supreme Court agreed and vacated the

sentence based on Hurst v. State. Newberry, 214 So.3d at 567-68. The Florida Supreme

Court found that the Hurst v. State error was not harmless because the jury’s

recommendation of death was not unanimous. Id.

At the second penalty phase, the State presented numerous witnesses including

the four victims of Newberry’s prior crimes to establish the prior violent felony

aggravating factor. Newberry v. State, 288 So.3d 1040, 1044 & n.3 (Fla. 2019). The

State presented the victim of an aggravated battery who Newberry had shot six times.

Id. at n.3. The State also presented the mother of Newberry’s four children who was

the victim of Newberry’s aggravated assault conviction. Jd. at n.3. The State

additionally presented two police officers who were the victims of Newberry’s two

attempted first-degree murder convictions, both of whom Newberry had shot. Id. The

defense presented six witnesses — four lay witnesses and two expert witnesses. Id. at

1044. The two experts were Dr. Stephen Bloomfield, an expert in forensic and clinical

psychology, and Dr. Steven Gold, a psychologist who specializes in trauma psychology.

Id. at 1044-45. The jury unanimously found three aggravating factors beyond a

reasonable doubt. Jd. at 1045. The jury unanimously recommended a death sentence.

At the Spencer® hearing, which is a second bench penalty phase, during which

both parties may present additional evidence to the judge alone, the defense presented

Newberry's medical records to support Dr. Gold’s testimony. The “trial court made its

own findings with respect to the aggravation and mitigation.” Jd. at 1045. The trial

court found two statutory aggravating factors: 1) prior violent felony based on

Newberry's prior violent felony convictions, and 2) in the course of a robbery merged

with pecuniary gain, both of which it gave great weight. Id. The trial court considered

36 mitigating circumstances. Id. at 1045-46. The trial court concluded that the

aggravation “heavily” outweighed the mitigation and sentenced Newberry to death.

Id. at 1046.

Following the resentencing, Newberry appealed his death sentence to the

Florida Supreme Court. Newberry v. State, 288 So.3d 1040 (Fla. 2019). Newberry

raised six issues on appeal including a claim that Florida’s standard jury instructions

in capital cases do not inform the jury that the sufficiency of the aggravating factors

and the weighing of the aggravating factors against the mitigating circumstances must

be established beyond a reasonable doubt. Jd. at 1047. Newberry raised the jury

instruction claim as a claim of fundamental error due to the lack of any

3 Spencer v. State, 615 So.2d 688 (Fla. 1998).

3

contemporaneous objection to the penalty phase jury instructions in the trial court.

The Florida Supreme Court concluded that there was no error in the standard jury

instructions, much less fundamental error. The Florida Supreme Court reasoned that

the determinations of sufficiency and weighing are not elements and therefore, were

“not subject to the beyond a reasonable doubt standard of proof.” Id. (citing Rogers v.

State, 285 So.3d 872, 878-79 (Fla. 2019)). The Florida Supreme Court concluded that

the “trial court did not err in instructing the jury.” Newberry, 288 So.3d at 1047.

On December 27, 2019, Newberry filed a motion for rehearing. On February 11,

2020, the Florida Supreme Court denied the rehearing.

On July 9, 2020, Newberry, represented by Assistant Public Defender Richard

Bracey, filed a petition for a writ of certiorari in this Court.

REASONS FOR DENYING THE WRIT

ISSUE I

WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION

OF THE FLORIDA SUPREME COURT REJECTING A CLAIM OF

FUNDAMENTAL ERROR IN THE STATE'S STANDARD PENALTY

PHASE JURY INSTRUCTIONS AND HOLDING THAT NEITHER

SUFFICIENCY OF THE AGGRAVATING FACTORS NOR WEIGHING

OF THE AGGRAVATING FACTORS AGAINST THE MITIGATING

CIRCUMSTANCES ARE ELEMENTS OF THE CRIME OF CAPITAL

MURDER.

Petitioner Newberry seeks review of a decision of the Florida Supreme Court

holding Florida’s standard jury instructions in capital cases are not fundamental error.

Newberry asserts that Florida's new death penalty statute makes both the sufficiency

of the aggravating factors and the weighing of the aggravating factors against the

mitigating circumstances elements of the crime of capital murder and that the failure

to instruct the jury that both sufficiency and weighing are elements is fundamental

error. But Florida’s concept of fundamental error, especially as it relates to jury

instructions, is a matter of state law over which this Court lacks jurisdiction.

Furthermore, the Florida Supreme Court has repeatedly held that sufficiency or

weighing are not elements. This Court is bound by the Florida Supreme Court’s

interpretation of a state statute including its determination of the elements of a crime.

Johnson v. United States, 559 U.S. 133, 188 (2010). The Florida Supreme Court has

held that sufficiency or weighing are not elements, which ends the matter.

The argument that sufficiency and weighing are elements is contrary to the

actual text of Florida which explicitly defines eligibility as the jury’s finding of one

aggravating factor. Once the jury finds an aggravator, the sentencing range includes

death and a judge alone may make factual findings that increase the sentence within

the range, as this Court explained in Alleyne v. United States, 570 U.S. 99 (2018). So,

sufficiency and weighing are sentencing considerations, not elements of capital murder.

And, indeed, under the reasoning of this Court in Kansas v. Carr, 136 S.Ct. 633 (2016),

sufficiency and weighing are not even facts, much less elements of capital murder. It

is only facts and elements that must be proven beyond a reasonable doubt and

sufficiency and weighing are neither.

Furthermore, there is no conflict between this Court’s Sixth Amendment

jurisprudence and the Florida Supreme Court’s decision in this case. The Florida

Supreme Court’s decision in this case mirrors this Court’s decisions in Kansas v. Carr,

136 S.Ct. 633 (2016), and McKinney v. Arizona, 140 8.Ct. 702 (2020). The petition

ignores McKinney. Nor is there any conflict between the federal circuit courts and the

state courts of last resort and the Florida Supreme Court’s decision in this case. There

are no decisions from any lower appellate courts holding that weighing is an element

of capital murder after McKinney. There is no conflict. For all these reasons, the

petition should be denied.

The Florida Supreme Court’s decision in this case

Newberry raised a claim in the Florida Supreme Court that the trial court erred

in failing to instruct the jury that it must determine beyond a reasonable doubt that

the aggravating factors were sufficient and that aggravating factors outweighed the

mitigating circumstances. Newberry v. State, 288 So.3d 1040, 1047 (Fla. 2019) (No.

SC18-1133). The Florida Supreme Court explained that Newberry had not objected to

the jury instructions in the trial court and was raising the claim as a claim of

fundamental error. Jd. at 1047. The Florida Supreme Court rejected the claim of

fundamental error, finding no error at all. Jd. (concluding that “the trial court did not

err in instructing the jury”). The Florida Supreme Court reasoned that there was no

error because the determinations of sufficiency and weighing are not elements subject

to the beyond a reasonable doubt standard of proof. The Florida Supreme Court relied

on its prior decision in Rogers v. State, 285 So.3d 872, 885-86 (Fla. 2019), in which the

Florida Supreme Court previously held that sufficiency, weighing, and the final

recommendation were not elements that must be determined by the jury beyond a

reasonable doubt.‘

Issues are solely a matter of state law

This Court lacks jurisdiction over cases that do not present a federal question.

28 U.S.C. § 1257; Johnson v. Williams, 568 U.S. 289, 309 (2018) (Scalia, J., concurring)

(noting that 28 U.S.C. § 1257 imposes a federal question requirement as a condition

of this Court’s appellate jurisdiction). In Michigan v. Long, 463 U.S. 1032 (1983), this

Court explained that it lacks jurisdiction over a case if a state court’s decision rests

upon two grounds, one of which is a state law ground and the other is a federal ground

if the state law ground is independent of the federal ground and adequate itself to

support the judgment. Jd. at 1038, n.4 (quoting Fox Film Corp. v. Muller, 296 U.S. 207,

210 (1935)). Provided the state law is not “interwoven” with federal law, this Court’s

jurisdiction “fails.” Id.

The issue of fundamental error being raised in the petition is not interwoven

with federal law. Rather, the issue is purely an issue of state law. Florida’s concept

of fundamental error is a matter of state law. While there certainly is some overlap

between this Court’s concept of structural error and Florida’s concept of fundamental

error, Florida’s concept is significantly broader, especially in the area of jury

instructions issues. Roberts v. State, 242 So.3d 296 (Fla. 2018) (concluding that an

error in a lesser included jury instruction was fundamental error); Knight v. State, 286

So.3d 147 (Fla. 2019) (imiting the concept of fundamental error to errors in the jury

instruction regarding the crime of conviction). Under this Court’s view, an omission

* Rogers is currently pending in this Court. Rogers v. State, 285 So.3d 872, 885-86 (Fla. 2019);

pet. for cert. filed May 15, 2020, Rogers v. Florida, No. 19-8473. The petition in Rogers and the petition

in this case raise the same issue and present the same arguments.

7

or flaw in the jury instructions regarding an element is not structural error. Neder v.

United States, 527 U.S. 1, 8-20 (1999). Rather, it is subject to harmless error analysis.

But, in Florida, fundamental error is not subject to harmless error analysis. Ramroop

v. State, 214 So.3d 657, 665 (Fla. 2017) (stating that fundamental error is not subject

to harmless error review citing Reed v. State, 8387 So.2d 366, 369-70 (Fla. 2002)). Due

to the differences in the federal concept of structural error and the state concept of

fundamental error, the issue of fundamental error in the jury instructions being raised

in the petition is solely a matter of state law. This Court lacks jurisdiction over the

claim of fundamental error.

Florida’s death penalty statute

Florida’s new death penalty statute, section 921.141, enacted by the Florida

legislature in the wake of Hurst v. Florida, 136 S.Ct. 616 (2016), and Hurst v. State,

202 So.3d 40 (Fla. 2016), provides that it is the finding of one aggravating factor that

makes a defendant eligible for a death sentence. Chapter 2017-1, LAWS OF FLA.;

Hannon v. Sec'y, Fla. Dep’t of Corr., 716 Fed. Appx. 848, 844 (11th Cir. 2017) (noting

the Florida legislature passed Chapter 2017-1, amending Florida’s death penalty

statute, in response to Hurst v. State). Florida’s new death penalty statute limits the

eligibility finding to one aggravating factor in two different subsections. §

921.141(2)(b)(1), Fla. Stat. (2020) (providing that if the jury does “not unanimously find

at least one aggravating factor, the defendant is ineligible for a sentence of death”); §

921.141(2)(b)(2), Fla. Stat. (2020) (providing that if the jury unanimously “finds at

least one aggravating factor, the defendant 1s eligible for a sentence of death ...”). The

sole factual finding determining eligibility for a death sentence under Florida’s statute

is the finding of one aggravating factor. So, it is one aggravator, and one aggravator

only, that is an element of capital murder that must be found by the jury beyond a

reasonable doubt. Neither sufficiency nor weighing are elements under the text of

Florida’s current death penalty statute.

Opposing counsel insists that Florida’s current death penalty statute makes both

sufficiency and weighing elements of the crime of capital murder. Not only is that

assertion directly contrary to the actual text of Florida’s statute, but the Florida

Supreme Court has repeatedly held that sufficiency or weighing are not elements of

capital murder.” The Florida Supreme Court has explained that weighing is a

“subjective determination” which “does not lend itself to being objectively verifiable”

and that “cannot be analogized to an element of a crime.” State v. Poole, 297 So.3d 487,

508 (Fla. 2020), pet. for cert. filed August 28, 2020, Poole v. Florida, No. 20-250.

Instead, weighing is a “discretionary judgment” that neither the state nor the federal

constitution require the jury make. Jd. at 503 (citing State v. Wood, 580 S.W.3d 566,

585 (Mo. 2019)). Sufficient aggravating factors, according to the Florida Supreme

Court, is one. Id. at 502 (“it has always been understood” that “sufficient aggravating

circumstances means one or more” citing cases).

Federal courts do not tell state courts how to construe the elements of state

criminal statutes. Johnson v. United States, 559 U.S. 133, 138 (2010) (moting that

5 Rogers v. State, 285 So.3d 872, 885-86 (Fla. 2019) (holding that sufficiency and weighing were

“not elements of the capital felony of first-degree murder” and stating that “these determinations are not

subject to the beyond a reasonable doubt standard of proof”), pet. for cert. filed May 15, 2020, Rogers v.

Florida, No. 19-8473; State v. Poole, 297 So.3d 487 (Fla. 2020) (stating that “because the section

921.141(8)(b) selection finding is not a ‘fact’ that exposes the defendant to a greater punishment,” it “is

not an element” and “because it is not an element, it need not be submitted to a jury’ citing Hurst v.

Florida, 136 S.Ct. 616, 621 (2016)); Doty v. State, ___ So.3d__, __, 2020 WL 717815, *3 (Fla. Feb. 13,

2020) (explaining that the determinations of sufficiency and weighing are “not subject to the beyond a

reasonable doubt standard of proof’ citing Newberry and Rogers); Bright v. State, __ So.8d___, ___, 2020

WL 1592942, *8 (Fla. Apr. 2, 2020) (holding that the argument that sufficiency and weighing were

elements had “no merit’ citing State v. Poole and Rogers); Archer v. State, 293 So.3d 455, 457 (Fla. 2020)

cholding the argument that sufficiency and weighing were elements to be “without merit” citing Rogers);

Santiago-Gonzalez v. State, __ Sa.3d ; , 2020 WL 3456751, *15 (Fla. June 25, 2020) (holding the

argument that weighing was an element to be “without merit” citing State v. Poole and Rogers).

Petitions in both Rogers and State v. Poole are currently pending in this Court. Rogers v. Florida, No.

19-8473; Poole v. Florida, No. 20-250.

federal courts are “bound” by the Florida Supreme Court's interpretation of a state

statute “including its determination of the elements” citing Johnson v. Fankell, 520

U.S. 911, 916 (1997)). “Neither this Court nor any other federal tribunal has any

authority to place a construction on a state statute different from the one rendered by

the highest court of the State.” Johnson, 520 U.S. at 916 (citing cases). This Court is

bound by the Florida Supreme Court’s holdings in Rogers and State v. Poole that

sufficiency and weighing are not elements under Florida’s death penalty statute.

Opposing counsel insists that the Florida Supreme Court’s reading of Florida’s

death penalty statute is “wrong.” Pet. at 23. But this Court is not free to tell the

Florida Supreme Court that its reading of a state statute is wrong due to federalism.

Johnson, 520 U.S. at 916 (observing that the proposition that a state supreme court’s

interpretation of a state statue is binding on federal courts is “fundamental to our

system of federalism”). The Florida Supreme Court has held that neither sufficiency

nor weighing are elements of capital murder in Florida, which ends the matter.

No conflict with this Court’s Sixth Amendment jurisprudence

There is no conflict between this Court’s Sixth Amendment or Due Process

jurisprudence and the Florida Supreme Court's decision in this case. Sup. Ct. R. 10(c)

(isting conflict with this Court as a consideration in the decision to grant review). The

Florida Supreme Court’s reasoning in its recent decisions in Rogers, State v. Poole, and

this case exactly mirrors the reasoning of this Court’s decisions in Kansas v. Carr, 1386

S.Ct. 633 (2016), and McKinney v. Arizona, 140 S.Ct. 702 (2020). As the Florida

Supreme Court recently observed, McKinney confirms its recent holding in State v.

Poole that sufficiency is not an element was a correct reading of the Sixth Amendment.

Owen v. State,___ So.38d __, __, 2020 WL 3456746, *3, n.2 (Fla. June 25, 2020).

This Court in Kansas v. Carr held that the Eighth Amendment did not require

10

that the jury in a capital case be informed that mitigation was not required to be

proven beyond a reasonable doubt. Carr, 136 S.Ct. at 642. The Carr Court explained

that standards of proof associated with elements do not apply to value judgments. Jd.

(expressing doubt whether it is “even possible to apply a standard of proof’ to the

determination of mitigation because it is “largely a judgment call” rather than a factual

determination). The Carr Court, in a decision issued after Hurst v. Florida, explained

that weighing was not a fact, much less an element. Rather, weighing was “mostly a

question of mercy.” Jd. The Florida Supreme Court’s decision in this case concluding

_ that sufficiency of the aggravation and weighing are not elements completely comports

with this Court’s reasoning in Carr.

And this Court recently in McKinney stated that the Sixth Amendment only

requires the jury to find one aggravating factor, it does not require the jury to perform

weighing. The McKinney Court explained that, under Ring v. Arizona, 536 U.S. 584

(2002), and Hurst v. Florida, “a jury must find the aggravating circumstance that

makes the defendant death eligible.” McKinney, 140 S.Ct. at 707. The McKinney Court

noted, that under “this Court's precedents, a defendant convicted of murder is eligible

for a death sentence if at least one aggravating circumstance is found.” Id. at 705

(citing cases). The Court in McKinney stated that Ring and Hurst v. Florida do “not

require jury weighing of aggravating and mitigating circumstances.” Id. at 708.

Rather, states, like Florida, that leave the ultimate sentencing decision to the judge

may continue to do so in the wake of Hurst v. Florida. Id. at 708 (quoting Ring, 536

U.S. at 612 (Scalia, J., concurring)). The McKinney Court reaffirmed its prior holding

in Clemons v. Mississippi, 494 U.S. 738 (1990), which permitted appellate reweighing

of the aggravation and mitigation in the wake of Hurst v. Florida. McKinney, 140 S.Ct.

at 708 (“Ring and Hurst did not overrule Clemons”).

So, according to both this Court and the Florida Supreme Court, the only

11

element of capital murder is the finding of one aggravating factor. McKinney, 140S.Ct.

at 705; State v. Poole, 297 So.3d at 502-03 (stating that under “longstanding Florida

law, there is only one eligibility finding required: the existence of one or more statutory

aggravating circumstances” and that “under longstanding Florida law, it is the finding

of an aggravating circumstance that exposes the defendant to a death sentence”). Both

this Court and the Florida Supreme Court agree that sufficiency and weighing are not

elements under the Sixth Amendment.

Opposing counsel does not cite, discuss, or distinguish this Court’s recent

decision in McKinney, despite that opinion being issued over four months before the

petition in this case was filed. To establish any present conflict with this Court’s Sixth

Amendment jurisprudence, Newberry must account for McKinney but he does not do

so in the petition. Instead, Newberry points to the tension between United States v.

Gaudin, 515 U.S. 506, 510 (1995), and Kansas v. Carr, 136 S.Ct. 633 (2016), in an

attempt to establish conflict. Pet. at 31. But the Florida Supreme Court did not address

that tension in its opinion in this case. Rather, the Florida Supreme Court read a state

statute to determine the elements of capital murder and rejected a claim of

fundamental error in Florida’s standard jury instructions. Even if there is some

tension between Gaudin and Carr, this case would not be the proper case to resolve

that tension.®

§ Moreover, there is little, if any, real tension between Gaudin and Carr. This Court in Gaudin

decided that materiality was an element of a federal criminal statute, in a case where the Government

conceded that it was an element. Carr, on the other hand, concerned whether the Eighth Amendment

required that the jury instructions in capital cases inform a jury that mitigating circumstances do not

have to be proven beyond a reasonable doubt. Gaudin involved the false statements statute, 18 U.S.C.

§ 1001, but Carr involved Kansas’ death penalty jury instructions regarding the standard of proof. The

Carr Court openly acknowledged that mitigation often has a factual aspect to it but thought that any

jury instruction that split mitigation into its component parts would only cause confusion. Carr, 136 S.

Ct. at 642 (“It would be possible, of course, to instruct the jury that the facts establishing mitigating

circumstances need only be proved by a preponderance, leaving the judgment whether those facts are

indeed mitigating, and whether they outweigh the aggravators, to the jury’s discretion without a

standard of proof’). But surely opposing counsel is not suggesting that mitigation is an element under

this Court’s Apprendi v. New Jersey, 530 U.S. 466 (2000), line of cases. Elements are facts that the

12

Nor does the Florida Supreme Court rejecting the claim as a matter of

fundamental error conflict with this Court’s holdings in Neder v. United States, 527

U.S. 1 (1999), or Washington v. Recuenco, 548 U.S. 212 (2006). The Neder Court held

that the jury’s failure to find an element was not structural error. Neder, 527 U.S. at

8-13. Rather, that failure was subject to harmless error analysis and was harmless in |

the case, given the evidence. Neder, 527 U.S. at 19-20. And the Recwenco Court also

concluded that violations of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely

v. Washington, 542 U.S. 296 (2004), were not structural error. Rather, they were

subject to harmless error analysis as well. Recuenco, 548 U.S. at 220-22. Even if

viewed as a federal question rather than a state law matter, there is no conflict

between this Court’s structural error jurisprudence and the Florida Supreme Court’s

decision in this case rejecting the claim of fundamental error.

There is no conflict between this Court’s jurisprudence and the Florida Supreme

Court’s decision in this case.

No conflict with the federal circuit courts or state courts of last resort

There is also no conflict between the decision of any federal appellate court or

any state supreme court and the Florida Supreme Court decision in this case. As this

Court has observed, a principal purpose for certiorari jurisdiction “is to resolve conflicts

among the United States courts of appeals and state courts concerning the meaning

of provisions of federal law.” Braxton v. United States, 500 U.S. 344, 347 (1991); see

also Sup. Ct. R. 10(b) (isting conflict among federal appellate courts and state supreme

prosecution proves but mitigation is proven by the defense. And, if proven, mitigation operates to

decrease the sentence. To be an element under Apprendi, the fact must increase or aggravate the

sentence. Any determination, even if viewed as a fact, that decreases the sentence cannot be an element

under Apprendi and its progeny. Mitigation is not an element of capital murder. There cannot be any

real tension between a case about elements and a case that is not about elements. There is no serious

tension between Gaudin and Carr.

13

courts as a consideration in the decision to grant review). Issues that have not divided

the courts or are not important questions of federal law do not merit this Court’s

attention. Rockford Life Ins. Co. v. Ill. Dep’t of Revenue, 482 U.S. 182, 184 n.3 (1987).

In the absence of such conflict, certiorari is rarely warranted.

There is no conflict between the federal appellate courts or the state courts of

last resort and the Florida Supreme Court’s decision in this case. Opposing counsel

points to no federal circuit court decision or state supreme court decision holding that

sufficiency or weighing are elements in the wake of this Court’s recent decision in

McKinney.

Prior to McKinney, the Tenth Circuit had rejected an argument that Hurst v.

Florida requires the jury to perform the weighing function. Underwood v. Royal, 894

F.3d 1154, 1185-86 (10th Cir. 2018), cert. denied, Underwood v. Carpenter, 139 S.Ct.

1842 (2019) (No. 18-7442). There certainly is no conflict between the Tenth Circuit

and the Florida Supreme Court’s decision in this case.

Opposing counsel improperly relies on a dissenting opinion from the Sixth

Circuit to establish conflict. Pet. at 30 (quoting United States v. Gabrion, 719 F.3d 511,

548-49 (6th Cir. 2013) (en banc) (Moore, J., dissenting)).’ The majority in the Sixth

Circuit’s en banc decision in Gabrion, first observed that, contrary to the dissent’s view,

mitigation was a “moral concept” and then rejected the argument that anything other

than one aggravating factor had to be found by the jury at the beyond a reasonable

doubt standard. Jd. at 522, 531-33. The Sixth Circuit en banc rejected the argument

the jury had to determine weighing at the beyond a reasonable doubt standard of proof

? Judge Moore believes that a federal capital jury must find that the aggravating factors

“substantially” outweigh the mitigating factors beyond a reasonable doubt standard for a defendant to

be sentenced to death, despite the text of the Federal Death Penalty Act not including the phrase

“substantially” outweigh or that standard of proof. Gabrion, 719 F.3d at 545. The Federal Death Penalty

Act provides that the aggravating factors must “sufficiently” outweigh the mitigating factors. 18 U.S.C.

§ 3593(e). The Federal Death Penalty Act only requires that aggravating factors be established beyond

a reasonable doubt. 18 U.S.C. § 3593(c).

14

explaining that weighing was a “moral judgment,” not “a finding of fact.” Id. at 531-33

(citing six other circuit cases). But the en banc majority opinion in Gabrion agrees

with the logic of the Florida Supreme Court’s decisions in Rogers, State v. Poole and

this case. There is no conflict between the Sixth Circuit’s decision in Gabrion and the

Florida Supreme Court’s decision in this case. Indeed, the Florida Supreme Court in

State v. Poole relied on the Sixth Circuit’s decision in Gabrion. State v. Poole, 297 So.3d

at 503 (quoting Gabrion, 719 F.3d at 533). And Gabrion was decided by the Sixth

Circuit before either Hurst v. Florida or McKinney were decided anyway. There

certainly is no conflict between the Sixth Circuit and the Florida Supreme Court's

decision in this case.

Other state supreme courts had also rejected arguments that Hurst v. Florida

required jury weighing prior to McKinney.® Indeed, the Florida Supreme Court relied

on the Missouri Supreme Court’s decision in State v. Wood, 580 S.W.3d 566, 582-88

8 Ex parte Bohannon, 222 So.3d 525, 532-33 (Ala. 2016) (rejecting a Hurst v. Florida challenge

and explaining that weighing is a “moral or legal judgement,” not a factual determination citing

California v. Ramos, 463 U.S. 992, 1008 (1983), and Zant v. Stephens, 462 U.S. 862, 902 (1983)

(Rehnquist, J., concurring)), cert. denied, Bohannon v. Alabama, 137 8.Ct. 831 (2017) (No. 16-6746);

Leonard v. State, 73 N.E.8d 155, 168-69 (Ind. 2017) (concluding that Hurst v. Florida does not require

weighing be made beyond a reasonable doubt, in a non-capital case); Evans v. State, 226 So.3d 1, 39

(Miss. 2017) (noting the Hurst v. Florida decision “did not rest upon or even address” the beyond a

reasonable doubt standard of proof), cert. denied, Jordan v. Mississippi, 188 S.Ct. 2567 (2018) (Nos. 17-

71538, 17-7245); State v. Wood, 580 S.W.3d 566, 582-88 (Mo. 2019) (en banc) (holding Missouri’s deadlock

statute allowing the judge to sentence the defendant to death did not violate the Sixth Amendment right

to a jury trial under Hurst v. Florida provided the jury finds at least one statutory aggravating

circumstance beyond a reasonable doubt), cert. denied, Wood v. Missouri,__S.Ct.___, 2020 WL 1906578

(2020) (No. 19-967); State v. Lotter, 917 N.W.2d 850, 863 (Neb. 2018) (noting that most federal and state

courts agree that Hurst v. Florida did not hold that a jury must find beyond a reasonable doubt that the

aggravating factors outweigh the mitigating circumstances), cert. denied, Lotter v. Nebraska, 139 S.Ct.

2716 (2019) (No. 18-8415); Jeremias v. State, 412 P.3d 48, 54, 57-59 (Nev. 2018) (describing weighing as

“part of the individualized consideration” of the selection phase to determine an appropriate sentence,

not a factual determination, and observing that ascribing a burden of proof to that determination “would

be pointless” citing Kansas v. Carr, 136 S.Ct. 633, 642 (2016), and rejecting an argument that Hurst v.

Florida required the jury be instructed that weighing must be found at the beyond a reasonable doubt

standard of proof), cert. denied, Jeremias v. Nevada, 139 S.Ct. 415 (2018) (No. 18-5331); State v. Mason,

108 N.E.3d 56, 59-68 (Ohio 2018) (rejecting an argument that Ohio’s death penalty statute was

unconstitutional in the wake of Hurst v. Florida and noting that nearly “every court that has considered

the issue has held that the Sixth Amendment is applicable to only the fact-bound eligibility decision”),

cert. denied, Mason v. Ohio, 189 S.Ct. 456 (2018) (No. 18-5303).

15

(Mo. 2019) (en banc), cert. denied, Wood v. Missouri, __ S.Ct. __, 2020 WL 1906578

(2020) (No. 19-967), in its decision in State v. Poole. State v. Poole, 297 So.3d at 503

(citing State v. Wood, 580 S.W.3d at 585). There is certainly is no conflict with these

state supreme courts and the Florida Supreme Court’s decision in this case.

The Delaware Supreme Court held that Hurst v. Florida required a jury, not a

sentencing judge, to perform the weighing and to do so beyond a reasonable doubt in

Rauf v. State, 145 A.3d 4380 (Del. 2016). But Rauf was decided prior to McKinney. This

Court clarified in McKinney that the only element for Sixth Amendment purposes in

a capital case is the finding of one aggravator. McKinney, 140 S.Ct. at 7 05-06.°

° While some state supreme courts have held that weighing is an element that must be proven

beyond a reasonable doubt, those courts have done so mostly as a matter of state statutory law, not as

a matter of the Sixth Amendment and those decisions were issued many years prior to McKinney. In

most of these states, that standard of proof was established long before Hurst v. Florida was decided in

2016. Indeed, those standards were established before Ring v. Arizona was decided in 2002, as well as

before Apprendi was decided in 2000. See, e.g., Hill v. State, 713 S.W.2d 233, 238 (Ark. 1986) (addressing

the 1977 version of the state statute that requires aggravation to outweigh mitigation beyond a

reasonable doubt); People v. Tenneson, 788 P.2d 786, 790 (Col. 1990) (holding that the jury must be

convinced beyond a reasonable doubt that any mitigation does not outweigh aggravation); State v.

McDougall, 301 S.E.2d 308, 327 (N.C. 1983) (stating that the jury must be persuaded beyond a

reasonable doubt that aggravation outweighs mitigation); State v. Biegenwald, 524 A.2d 130, 158 (N.J.

1987) (citing to the state statute that requires the State prove beyond a reasonable doubt that

aggravation outweighs mitigation); People v. Harris, 676 N.Y.S.2d 458, 459 (N.Y. 1998) (citing the state

statute that requires the jury unanimously find beyond a reasonable doubt that aggravation

“substantially” outweighs mitigation); State v. McKinney, 74S.W.3d 291, 319-20 (Tenn. 2002) (citing the

2000 state statute that requires that the aggravation outweigh mitigation beyond a reasonable doubt);

State v. Wright, 90 P.3d 644, 647 (Utah Ct. App. 2004) (citing the 2003 state statute that the jury be

persuaded beyond a reasonable doubt that aggravation outweighs mitigation); State v. Jenkins, 473

N.E.2d 264, 275 (Ohio 1984) (citing the state statute that requires that the State prove beyond a

reasonable doubt that aggravation outweighs mitigation). These states were probably attempting to

avoid the equipoise problem that occurs when the aggravation is equal to the mitigation that ultimately

was resolved by this Court in Kansas v. Marsh, 548 U.S. 163, 173 (2006). The Marsh Court held that

a death sentence may constitutionally be imposed where the aggravating circumstances and mitigating

circumstances are equal in weight. But referring to the equipoise problem in standard of proof terms

is a misnomer. Instead, to avoid the equipoise problem, these states’ statutes and jury instructions

should be worded to provide that the jury should not impose a death sentence unless the jury concludes

that the aggravation outweighs the mitigation or even substantially outweighs the mitigation. And,

while it is certainly proper for a state to make a policy decision to limit the death penalty to cases where

the aggravation outweighs the mitigation or even substantially outweighs the mitigation, that concept

should not be expressed in standard of proof language which should be reserved for factual

determinations. Standards of proof do not apply to value judgments, such as sufficiency and weighing

as this Court explained in Kansas v. Carr. Carr, 136 S.Ct. at 642 (2016) (expressing doubt whether it is

“even possible to apply a standard of proof’ to the determination of mitigation because it is “largely a

16

There is no conflict between the Florida Supreme Court’s decision and that of

any federal circuit court of appeals or that of any state court of last resort in the wake

of McKinney. Because there is no conflict among the lower appellate courts, review in

this Court should be denied.

Elements of capital murder

Opposing counsel is asserting that because Florida’s death penalty statute

requires the jury determine sufficiency and weighing before recommending a sentence,

both those determinations automatically become elements. The mistake that opposing

counsel is making is viewing any consideration in sentencing as an element that must

be found by a jury. But this Court in Alleyne v. United States, 570 U.S. 99 (2013),

addressed that matter, explaining that the ruling regarding minimum mandatory

sentences did “not mean that any fact that influences judicial discretion must be found

by ajury.” Jd. at 116. Instead, this Court has “long recognized that broad sentencing

discretion, informed by judicial factfinding, does not violate the Sixth Amendment.” Id.

The Alleyne Court explained that, while juries must find facts that increase or

aggravate the penalty, a judge may find all other facts. Jd. at 118 n.2. While such

judicial factfinding “may lead judges to select sentences that are more severe than the

ones they would have selected without those facts, the Sixth Amendment does not

govern that element of sentencing.” Jd. at n.2. The McKinney Court also noted that

this Court in Apprendi had been careful to avoid “any suggestion” that it was

impermissible for a judge in sentencing to take into consideration various factors

relating both to offense and offender when determining a sentence “within the range.”

McKinney, 140 S.Ct. at 707 (citing Apprendi, 530 U.S. at 481) (emphasis in original).

judgment call” rather than a factual determination). But, regardless of the proper terminology, these

cases do not establish conflict with the Sixth Amendment Apprendi line of cases in the wake of

McKinney. Rather, these are pre-McKinney cases involving state statutory law.

17

Once the jury finds one aggravator, the sentencing range in a capital case is increased

to death and a judge alone may make all other determinations including the sufficiency

and weighing determinations. Constitutionally, it is the finding of one aggravating

factor that increases the sentence to death. A Florida judge in determining the

sentence in a capital case, may make factual findings regarding sufficiency, mitigation,

and weighing because all those findings are “within the range.” Under the logic of

Alleyne, because sufficiency and weighing do not increase or aggravate the sentence to

death, they are sentencing considerations, not elements. The Florida legislature made

a policy decision to have a jury recommendation of death in capital cases and provided

guidance to the jury on how to arrive at that recommendation but that does not turn

any and all determinations made by the jury to arrive at that recommendation, such

as sufficiency and weighing, into elements.

Opposing counsel is claiming, in effect, that the Florida legislature expanded the

eligibility phase to include any and all determinations the penalty phase jury makes

during the process of arriving at its final reeommendation regarding a sentence. But,

again, that claim is directly contrary to the actual text of the statute where the

legislature explicitly defined eligibility as the jury’s finding of at least one aggravator.

§ 921.141(2)(b)(1), Fla. Stat. (2020); § 921.141(2)(b)(2), Fla. Stat. (2020). This view

expands the eligibility phase to include the entire penalty phase and has the selection

phase only start with the Spencer hearing. Additionally, such a definition of the

eligibility phase would include mitigation and mercy, as well as sufficiency and

weighing, because they are steps in the process too. Before a jury can weigh

aggravation against mitigation, it must find mitigation. And the penultimate step

before the jury make its final recommendation is consideration of mercy. Reynolds v.

State, 251 So.3d 811, 816, n.5 (Fla. 2018) (explaining the mercy instruction is the

portion of Florida’s standard jury instructions in capital cases, instruction 7.11, “that

18

informs a jury that they are ‘neither compelled nor required to recommend’ death”),

cert. denied, Reynolds v. Florida, 139 S.Ct. 27 (2018). But both mitigation and mercy

act to decrease the sentence. It turns the definition of eligibility on its head to consider

either mitigation or mercy to be eligibility factors. Buchanan v. Angelone, 522 U.S. 269,

275-76 (1998) (contrasting the eligibility phase, which “narrows the class of defendants

eligible for the death penalty, often through consideration of aggravating

circumstances,” with the selection phase). Mitigation and mercy are not eligibility

factors, they are selection factors. Sufficiency, mitigation, weighing, and mercy are all

selection factors, not eligibility factors.

More practically, opposing counsel does not attempt to explain how either

sufficiency or weighing could be proven at any standard of proof, much less at the

beyond a reasonable doubt standard required of elements. In re Winship, 397 U.S. 358,

364 (1970) (holding that due process requires proof beyond a reasonable doubt of every

fact necessary to constitute the crime). A prosecutor may not simply argue in closing

that the aggravation is sufficient or that aggravation outweighs the mitigation, if those

additional determinations are viewed as elements. Special v. W. Boca Med. Cir., 160

So.3d 1251, 1260 (Fla. 2014) (plurality) (stating that the “commentary of counsel in

closing is not evidence, nor may the jury consider the mere argument as evidence when

it deliberates and renders a verdict”). In fact, Florida’s standard jury instructions tell

the jury that what the lawyers say is not evidence. In re Standard Jury Instructions

in Criminal Cases - Report No. 2010-01 & Standard Jury Instructions in Civil Cases

- Report No. 2010-01, 52 So.3d 595, 599 (Fla. 2010) (“What the lawyers say is not

evidence, and you are not to consider it as such.”). A prosecutor must have actual

evidence to establish an element. What witness may the prosecutor call to testify as

a fact witness to establish sufficiency and weighing? And what questions may the

prosecutor ask that witness? There is no possible eyewitness to either sufficiency or

19

weighing. And, regardless of what witness the prosecutor presented, that witness’

testimony about sufficiency or weighing by its very nature would be opinion testimony,

not fact testimony. There is no evidence available to meet any standard of proof, much

less the highest standard of proof because neither sufficiency nor weighing are facts.

For this reason, simply as a practical matter, sufficiency and weighing cannot possibly

be elements.

Opposing counsel is not truly attempting to have this Court treat sufficiency and

weighing as actual elements in the sense of having the prosecution prove either of

them. Rather, opposing counsel is attempting to have this Court rewrite Florida’s new

death penalty statute to require the jury determine that the aggravation

“substantially” outweighs the mitigation at a high “level of certitude” before

recommending a death sentence, as some other states’ statutes provide. Pet. at 28-29

(citing Arkansas’ statute, New York’s statute, Ohio’s statute, Tennessee’s statute and

Utah’s statute); see also United States v. Gabrion, 719 F.3d 511, 545 (6th Cir. 2013) (en

banc) (Moore, J., dissenting) (advocating the Federal Death Penalty Act be interpreted

to require that aggravation “substantially” outweigh mitigation and by the beyond a

reasonable doubt standard). But this Court does not rewrite state statutes. And this

Court would have to overrule its holding in Kansas v. Marsh, 548 U.S. 163 (2006), to

do so. Id. at 173 (holding that a state death penalty statute may direct imposition of

the death penalty where the aggravating circumstances and mitigating circumstances

are in equipoise).

The Federal Death Penalty Act (FDPA) would be constitutionally suspect as well

under opposing counsel’s view of due process and the elements of capital murder. The

FDPA does not require that aggravating factors “substantially” outweigh the

mitigating factors; it only requires that aggravating factors “sufficiently” outweigh the

mitigating factors. 18 U.S.C. § 3593(e). And the FDPA does not require weighing be

20

established beyond a reasonable doubt; it only requires that aggravating factors be

established beyond a reasonable doubt. 18 U.S.C. § 3593(c). Ajury in a federal capital

case is not instructed that aggravation must “substantially” outweigh mitigation or

that weighing must be established beyond a reasonable doubt, just as the jury in this

Florida capital case was not.

Opposing counsel also attempts to distinguish Arizona’s death penalty statute,

which was at issue in Ring v. Arizona, 536 U.S. 584 (2002), and McKinney v. Arizona,

140 S.Ct. 702 (2020), from Florida’s death penalty statute. Pet. at 17-21. But, in

McKinney, this Court stated, under “this Court's precedents, a defendant convicted of

murder is eligible for a death sentence if at least one aggravating circumstance is

found” and cited a California capital case and two Georgia capital cases in support of

that statement. McKinney, 140 S.Ct. at 705-06 (citing Tuilaepa v. California, 512 U.S.

967 (1994); Zant v. Stephens, 462 U.S. 862 (1983); Gregg v. Georgia, 428 U.S. 153

(1976)). This Court’s statement that the only element for purposes of the Sixth

Amendment was one aggravator was not dependent on the particulars of Arizona’s

death penalty statute.

Furthermore, it 1s only facts and elements that must be proven beyond a

reasonable doubt under In re Winship, 397 U.S. 358, 364 (1970). In re Winship is not

a “level of certitude” case regarding questions of mercy, such as weighing; it is a

standard of proof case regarding elements. If a determination is not an element, then

In re Winship does not apply.

Florida’s death penalty statute does not violate the Sixth Amendment or due

process. Jury plus judge sentencing where the judge is bound by the jury's findings

regarding aggravation and recommendation of life but is free to ignore those findings

and the jury’s recommendation of death and impose a life sentence does not violate the

Sixth Amendment or due process. Newberry, 288 So.3d at 1045 (stating “the trial court

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