Opposition Brief — David Kelsey Sparre, Petitioner v. Florida

NO. 20-5217

IN THE SUPREME COURT OF THE UNITED STATES

DAVIS KELSEY SPARRE,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI1

Associate Deputy Attorney General

Counsel of Record

Janine D. Robinson

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

(850) 414-3300

COUNSEL FOR RESPONDENT

IT.

III.

Capital Case

Questions Presented

Whether this Court should grant certiorari review of the Florida Supreme

Court’s decision that trial counsel was not ineffective under Strickland v.

Washington, where there is no conflict with this Court’s jurisprudence and no

important or unsettled question of law is presented for review.

Whether this Court should grant certiorari review of the Florida Supreme

Court’s declination to recede from the established law of Roper v. Simmons the

Kighth Amendment’s prohibition against sentencing a juvenile defendant to

death, where the defendant in this case was 19 years old at the time of the

murder, where Petitioner failed to raise such a claim on direct appeal and does

not allege that the decision below conflicts with this Court’s precedents or the

decision of any other court.

Whether this Court should grant certiorari review of the Florida Supreme

Court’s finding that any Hurst error was harmless and not violative of Caldwell

v. Mississippt.

TABLE OF CONTENTS

PAGE(S)

Questions Presented ............ccccceccceceeeeseeseseencesccssescnceeeececececesacecaeasesecaeaeaceeausensnenseseeaqaeees i

Table of Contents ...............:::ccccceceeeseeeeeeeceeeceeeeeecsecnenceceeeaeececaseesuseensseeecsesescaneeeeesassanaaess il

Table of Citations and Authorities. .............ccccessssecceceeseessneceeesssnsecessssesesesseneressseenessaes lv

Opinion Below..............ccccccssssesseeseseseseeesesseesseeesesuansnssensecseseseaeeeececscsessaceceseceeacesecessssenenees 1

JUTISGICCION 20.0... ececeeececeeeseseeneneeeececececesnaceceeseessensesenececeesnseseneseeeeensnaneneeeseseeasesesaeeeeseaees 1

Constitutional Provisions Involved ...........cscscccessssseeceeeeeseneceeeessaaeeeseseeeeenessceeessenseetes 1

Statement of the Case and Procedural History ................. cc ccseeeeevesesececerececeveceseeveseceeves 2

Reasons for Denying the WYit ...............cccccccccccecccccsssseseccccnsacssecesecesacacnensccssecceceaceeeveeenes 9

I. The Florida Supreme Court’s Determination that Trial Counsel Was Not

Ineffective Under Strickland Does Not Conflict with any Decision of this Court

or Present an Important or Unsettled Question of Law for this Court’s Review

se cceceeececeosesseeeseteecsceacceseeeeeeesececeeeeceteseseeneeseseseseteeeeeeseeeeeaaaenececeeaueusnsneneceseseseeaeensens 9

A. Failure to retain forensic pathologist ......................:::::000sessseseeseeesseessseeceees 11

B. Failure to conduct effective closing argument. ...............ccccscceceeesecesesesseseees 14

C. Failure to object to prosecutor’s stateMents................:.::0scseseseseeeseesseeeeeeees 15

D. Cumulative Crror .........cccccccccceecscseseenensesesecenensncceneceeesesesssnenceeeeeeeesesseseeeeess 16

II. The Florida Supreme Court’s Decision Not to Extend Roper v. Simmons’ Eighth

Amendment’s Prohibition of Sentencing Juveniles to Death Does Not Warrant

ROVICW 0... .cccccccccccccceecccececccucececececececececeseessueveusecececesenenecececesenenaceneneneneessenenenseaenans 18

III. The Florida Supreme Court’s Hurst v. State Harmless Error Analysis Does Not

Present a Conflict with this Court’s Precedent or an Unsettled Question of

Constitutional] Law .00........ececeeeceecesenecececeeececeneeenecseanceseneceeacacecacaeaeucasacensenenereeees 21

rv

Conclusion..............--

Certificate of Service

ill

TABLE OF CITATIONS AND AUTHORITIES

Cases

Allen v. State, 261 So. 3d 1255 (Pla. 2019) «0... sesessececeesesseceeeeeeseeeeseeeeesecseeeeseeeees 29, 30

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ............scssccsccecssssssessesevesece 27

Anderson v. Florida, 140 S. Ct. 291 (2019) ....... cc ccccesesscscesesenecescecscessecsucesnnssesssneneass 24

Anderson. v. State, 257 So. 3d 355 (Fla. 2018) .0...........cccssssseccsseeceesssssnsseceeeeceesessaneceees 24

Apprendi v. New Jersey, 5380 U.S. 466 (2000) ........ ccc cceeccesevereneceeseereesesvereeeveneeees 27

Belcher v. Sec’y, Fla. Dept. of Corr., 427 Fed. Appx. 692 (11th Cir. 201]) .......000...... 36

Bowling v. Commonwealth, 224 S.W.3d 577 (Ky. 2006) ............ccccceeccesesccesenensssseesenes 20

Bowling v. Parker, 344 F.8d 487 (6th Cir, 2008) .......c.cceccecceeseccsenseesenecssesscnsscnsseeeeeeees 35

Branch v. Florida, 1388 S. Ct. 1164 (2018) oo... cecceesenecececeseneeenececacnessceneneeeeeeeenes 19

Branch v. State, 236 So. 3d 981 (Fla. 2018) 00.0.0... cc ceececsscsececceeeenceescesecesareceeseeessess 19

Brown v. State, 2020 WL 5048548 (Fla. Aug. 27, 2020) 0.0.2.0... cc eeccceeesesceceveseseecereces 27

Buck v. Davis, 187 S. Ct. 759 (2017) oo... ceccccccccceeesececccesececccteececcucveseeeeueceecuecuseaveseres 13

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

Crain v. Florida, 139 8. Ct. 947 (2019)... eeccccessssseeceesseeeeesseaceseeeesseaeneresenssesenseaetens 24

Crain v. State, 246 So. 3d 206 (Fla. 2018) .0..........cccccssssccececsssssssnscscecesccseceeecessnsseeeenees 24

Darden v. Wainwright, 477 U.S. 168 (1986) .0..........ccccecsesssseesceceeececeseseccececensasseenees 32

Davis v. Singletary, 119 F.8d 1471 (11th Cir. 1997) .......ccccccccccccccseceecececeeeeeseceerenees 36

Davis v. State, 207 So. 3d 142 (Fla. 2016)... ececcccccccecencesnseresececeusaveeucececereesenees 29

Fleenor v. Anderson, 171 F.3d 1096 (7th Cir. 1999) ................cccccccceesseeeeeeceneeeesssesseees 35

Florida v. Hurst, 1387S. Ct. 2161 (2017)... ccccccscccccccccecseecececsesesesevenseeaceeceeacsseserene 25

Graham v. Florida, 560 U.S. 48 (2010)..............:c:ccccceseseececssssevscsecesecenesesesceeesecenesenars 20

Grim v. Florida, 189 S. Ct. 480 (2018)...........cccccccscssseccecceccccesesssnsceueeeeesnaceseusaeneneananes 24

Grim v. State, 244 So. 3d 147 (Pla. 2018) 20... ccceccecssnececeseeeeeeeeesnneeeeceeessseeeeeesseeeees 24

Guardado v. Florida, 139 S. Ct. 477 (2018)............cscccccccssssssscssececenseesessnesneceeeneceeessees 24

Guardado v. Jones, 138 S. Ct. 1181 (2018)... eee cceccececcceeccceseesseuseeeceessseeceseeeeeeeees 24

Guardado v. Jones, 226 So. 3d 213 (Fla. 2017) ........ccccccccessesvcccecvecceseeceneuevenccesaueceees 24

Guardado v. State, 238 So. 3d 162 (Fla. 2018) .........ccccccccccccsecenecesecseeseeceasseceneneceeeeeeee 24

Harrington v. Richter, 562 U.S. 86 (2011) oo... cccsssesssnseeccsececcceseceneneeaeeenseeseses 10, 12

Herring v. New York, 422 U.S. 853 (1975) ..........cccccccscssssssseseseecnsecececusnssecerececssssenereucs 14

Hurst v. Florida, 186 S. Ct. 616 (2016) 200.0... eee cceneseecereeeeesececueuseceeseserenaees passim

Hurst v. State, 202 So. 3d 40 (Pla. 2016) 0... ccceccsscscssssnececereceeceeeeeeteneesseeeasasseeees 9, 25

In re Garner, 612 F.3d 533 (6th Cir. 2010) ........ cc ccccccccseessssssseecccacccecnsseaessacacassesecans 20

Johnston v. Florida, 189 S. Ct. 481 (2018) 0. cee eeeecesseeeeseceeeseeeesesseeseeseeeeeeees 24

Johnston v. State, 246 So. 3d 266 (Fla. 2018) 0.0.0... eesesceseeeseececcacecssscsseeeceeensceeaes 24

Lambrix v. Sec’y, Fla. Dept. of Corr., 851 F.3d 1158 (11th Cir. 2017)............. eee 13

Lowe v. Florida, 1389 S. Ct. 2717 (2019) o.oo... ceeccccecessseeeceerenssesecensnsecessceseneveseraneeees 24

Lowe v. State, 259 So. 3d 23 (Fla. 2018) ........cccccccccccscsesssssssessevevecenenecsasaseceseucesessasaeans 24

McKinney v. Arizona, 140 S. Ct. 702 (Feb. 25, 2020) ...............cseeeeeseeeeeeee 22, 23, 26, 30

Melton v. Sec’y, Fla. Dept. of Corr., 778 F.3d 1234 (11th Cir. 2015)... ees 20

Miller v. Alabama, 567 U.S. 460 (2012)......... cc eccseeeeseeeecceecececececnessucecteceeasasersceceeees 20

Morris v. Florida, 138 S. Ct. 452 (2017) .0.........cececseeeeeeeeeceencececereceeacecececcreusseerecseneees 24

Morris v. State, 219 So. 3d 33 (Fla. 2017) 0... ecccesesssesseeeeeeececcsccnsuvevececeeeasssececeevenes 24

Oliver v. Florida, 188 S. Ct. 3 (2017) ou... cccccccccccccceseccsssscessssccecceuanacsseveaseecveseseveeveves 24

Oliver v. State, 214 So. 3d 606 (Fla. 2017).........cccccceccsessscssssesseceneneceasasencauseuseescuuneneees 24

Owen. v. State, 2020 WL 3456746 (Fla. June 25, 2020)... ceccceceesseneeceeeeesseeeenesees 27

Philmore v. State, 234 So. 3d 567 (Fla. 2018) .........cccccccccecccsescesceseeeeseccessessseaseeaceeees 26

Ponticelli v. Sec’y, Fla. Dept. of Corr., 690 F.3d 1271 (11th Cir. 2012) .........0...00..... 17

Proffitt v. Florida, 428 U.S. 242 (1976) ..........ccccccccssccecsssseecessereeeeesssnneeeceseassneeeees 28, 35

Reynolds v. Florida, 1389 S. Ct. 27 (2018).......ccccccsssssscccsceesececesececesesecececcccecccecanenaceeeees 24

Reynolds v. State, 251 So. 3d 811 (Pla. 2018) 0.0.0... ccccccesesssccnessesssssneaceesseessnsnceaenees 24

Ring v. Arizona, 536 U.S. 584 (2002) 20... ccecccessseseeeceeceeecececeesscssesseseseeeeeenses passim

Romano v. Oklahoma, 512 U.S. 1 (1994) 0.0... eseeeeseeseeeecesecececeacesssseeeeeeseseeeasseeess 35

Roper v. Simmons, 543 U.S. 551 (2005)...........ccececccesesesesesesssensnsssssnsesnsescssenseseseseees 8, 18

Schriro v. Summerlin, 542 U.S. 348 (2004) .......ccccccccceceeseeseseeseeeeseeeeseeeeeeeseeeeeeseeenens 22

Sparre v. Florida, 1386 S. Ct. 411 (2015) ...........cccccssssscceceesessncecececeeeesssecsceeceeseaesessneeeees 7

Sparre v. State, 164 So. 3d 1188 (Pla. 2015)... cece ccceesseeceeeeseseeeeeeeeseceeeeseeees passim

Sparre v. State, 2020 WL 914660 (Feb. 26, 2020) ..............ccscsssssesssssssssssecenssessscsseeneneas 1

Sparre v. State, 289 So. 3d 839 (Fla. 2019)...........ccccsssssessesssessssssesssesessesacssessseees passim

Spaziano v. Florida, 468 U.S. 447 (1984) 0.0... cccccccccesecesesseesesseeeeeeseceeseseeseseeeeeeeeeeeens 28

Spencer v. State, 615 So. 2d 688 (Fla. 1998) .............ccccecccecsseseseeseeeeeeeeeceeceessseeeesereneneees 5

State v. Tucker, 181 So. 8d 590 Cha. 2015)... cececcesececccereeccesssaveceeeececeacasssesureereeees 20

Strickland v. Washington, 466 U.S. 668 (1984)........ccccccccccsesesssesssceesesseeseseseseseseres 8, 16

Tanzi v. Florida, 139 S. Ct. 478 (2018) ...c.ccsseccscscseseecessecseccecsecsscssecscrecsecsetsaceseeeeeesees 24

Tanzi v. State, 251 So. 3d 805 (Fla. 2018) ....cccscccecsescecssscseccecssessecseesecrersecsatsaeeseerereeee 24

Tolan v. Cotton, 572 U.S. 650 (2014) o.oo eee c ccc csceecccccceasesseececeseseccccnsnceccasececseanenss 10

Truehill v. Florida, 138 S. Ct. 3 (2017) ..........ccccccccsessesessseeeeceececeaceccecseeeeeeecceseeeeeeeeees 24

Truehill v. State; 211 So. 3d 9380 (Pla. 2017) oo... cc ccceecccecenceeeeeeceensseeccneseeeeceeecs 24

United States v. Bernard, 762 F.3d 467 (5th Cir. 2014)... cc cccccseseccceessseenseeeeeees 20

United States v. Johnston, 268 U.S. 220 (1925) ......eecccccccccecceccenessecevsceccceesessesseevanees 30

Wilson v. Sirmons, 536 F.3d 1064 (LOth Cir. 2008)...............::csscescesceseseeessessevecseeserene 35

Other Authorities

§ 921.141, Fla. Stat. (1983)...c.cccccscssssssescssssececssescecsesssecasecsecusestecsesuesueseecaseeeeseersen 25, 28

QB U.S.C. § L257 .cccccecccceccsseccseccsesecsececececseseseesecessesesescesesaeseseesucasseseesestsasatsesnsesesaesneaeeee 1

Fla. R. of Crim. P. 3.851 oo... cceccccccccccccnesssenccnccneceaeseneneneceeeseceeasaaaeceeeeaeeeeaseugeseeeeeeeeeeas 7

Ind. Code § 35-50-2-9 ............cccccessessessssscscececcececcececseceececseeesesessneseacsnsesssesesececcacatecseneers 35

MS Code § 99-

Sup. Ct. R. 10

19-108 oo eee eee ceceeecccneeeeeenecesceseeneeeeseeeeneseseeesesesesenesessserenaaeeeegenes

Vii

IN THE SUPREME COURT OF THE UNITED STATES

NO. 20-5217

DAVID KELSEY SPARRE, Petitioner,

Vv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

PARTIES TO THE PROCEEDINGS

1) David Kelsey Sparre, Petitioner/Defendant/Appellant.

2) State of Florida, Respondent/Appellee.

OPINION BELOW

The Florida Supreme Court’s decision appears as Sparre v. State, 289 So. 3d

839 (Fla. 2019) (SC18-1192), rehearing denied, 2020 WL 914660 (Feb. 26, 2020).

JURISDICTION

28 U.S.C. § 1257 authorizes this Court’s jurisdiction and limits it to federal

constitutional issues that were properly presented below.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent accepts Petitioner's statement regarding the applicable

constitutional provisions involved.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY!

Petitioner David Kelsey Sparre was convicted by special verdict in 2011 of both

first-degree premeditated murder and felony murder, during the commission of a

burglary, for the stabbing death of 21-year-old Tiara Pool (“Pool”). The jury also found

that Sparre carried, displayed, used, threatened to use or attempted to use a weapon.

The detailed facts of the case are set forth in his direct appeal, Sparre v. State, 164

So. 3d 1183, 1186-88 (Fla. 2015), but are abbreviated as follows:

On July 5, 2010, 19-year-old Sparre, who lived in Georgia, responded to a

Craigslist advertisement Pool posted, wanting “to meet a white male.” Pool lived in

Jacksonville, Florida, was married and had two children. After Sparre responded to

Pool’s advertisement, the two spoke multiple times and exchanged numerous text

messages through July 8, 2010, some of which contained sexually explicit content.

According to Sparre, he drove his grandmother from Georgia to Jacksonville

for a medical procedure and agreed to meet Pool at the hospital on July 8, 2010. The

two met at the hospital and Pool drove Sparre to her apartment where they engaged

in consensual sexual relations. Sparre claimed that a few hours later, Pool drove him

back to the hospital. Sparre, 164 So. 3d at 1187.

After being “incommunicado” for several days, Pool’s friend, Nichelle Edwards,

1 Citations to the records on appeal in the Florida Supreme Court are designated:

direct appeal (DAR); denial of Sparre’s initial state postconviction motion (PCR).

2

went to Pool’s apartment on July 12, 2010, to check on her. Edwards entered the

apartment, went to the bedroom, opened the door slightly and saw a hand on the

floor. Edwards ran out of the apartment and dialed 911. Jacksonville Sheriffs Office

(“JSO”) officers responded to Pool’s apartment, finding her bloody, nude body on the

master bedroom floor. There was no indication of forced entry into the apartment,

but investigators learned that Pool’s vehicle, a PlayStation game console, and other

items were missing from the apartment. The vehicle was found two days after Pool’s

body was discovered, parked one block from the hospital where she and Sparre

initially met. Sparre, 164 So. 3d at 1186-88.

In the master bedroom, investigators found blood around Pool’s body, on the

carpet, baseboards, and in the bathroom. Investigators testified that a bottle of Oxi-

Clean, blood and clothing were found on the bed and the crime scene was “cleaned”

to such an extent that virtually no evidence of Pool’s assailant was recoverable. A

large knife, matching those in Pool’s kitchen and later established as the murder

weapon, was recovered in the bathroom. Its tip was broken off, the blade was bowed.

At trial, the State’s medical examiner, Dr. Jesse Giles, testified that Pool was alive

and conscious through at least 88 “sharp-force injuries,” including 39 defensive

wounds. Trial testimony revealed a mixture of DNA material was found on the knife’s

handle and the Y-DNA matched Sparre. Sparre, 164 So. 3d at 1186-88.

JSO detectives arrested Sparre in South Carolina on July 24, 2010, where he

had relocated. A second recorded interview took place, during which Sparre gave

various versions of his encounter with Pool, but ultimately admitted killing her with

the kitchen knife. Sparre told investigators that he remembered everything he

touched in Pool’s apartment, noting that he painstakingly wiped down everything he

touched with his socks, including his fingerprints from Pool’s car.2. When the

detectives asked Sparre how he learned to “clean” a crime scene, he stated by

watching the television program CSI: Crime Scene Investigation. Sparre, 164 So. 3d

at 1188.

Guilt Phase

Sparre knowingly and voluntarily agreed with the defense strategy to argue

he committed second-degree murder, not first-degree premediated murder. Among

the State’s 14 witnesses, Sparre’s former girlfriend Ashley Chewning testified that

prior to his arrest, Sparre confessed to her that he killed a black woman in her

Jacksonville apartment. Sparre, 164 So. 3d at 1188-89. She also asked Sparre about

the PlayStation game console that he had at the time. Sparre told her, “he stole it

from the woman he killed.” Jd. at 1189. After the State rested, Sparre knowingly

and voluntarily waived presentation of a defense, including his right to testify in his

own behalf. Id.

Following closing arguments, the trial court instructed the jury on first-degree

premeditated murder, first-degree felony murder with burglary as the underlying

2 A JSO latent fingerprint examiner testified that Sparre’s fingerprints were not

detected at the murder scene or in or on Pool’s car. Sparre, 164 So. 3d at 1188.

4

felony, as well as second-degree murder and manslaughter. The jury convicted

Sparre by special verdict for both premeditated murder and felony murder with both

burglary and that Sparre carried, displayed, used, threatened to use, or attempted to

use a weapon as the underlying felonies. Sparre, 164 So. 3d at 1189.

Penalty Phase

Sparre knowingly and voluntarily waived presentation of a mitigation case,

despite defense counsel informing the court that it was prepared to present

substantial mitigation evidence and several witnesses. The trial court instructed the

jury on two aggravating circumstances of felony murder and that the murder was

especially heinous, atrocious and cruel (“HAC”). The jury was instructed on two

statutory mitigators (extreme mental or emotional disturbance and Sparre’s age); the

general catch-all mitigator of “any other factors in the defendant’s character,

background or life’; and 17 non-statutory mitigators. The jury unanimously

recommended Sparre be sentenced to death. Sparre, 164 So. 3d at 1189-91.

Sparre again knowingly and voluntarily waived presentation of mitigation

evidence at the Spencer? hearing. Defense counsel proffered that mitigation evidence

was substantial and would have been presented through 25 witnesses. The State

presented the testimony of JSO Officer Daisy Peoples and Chewning, who identified

a January 2, 2012, letter Sparre attempted to mail to Chewning. The letter, retrieved

3 Spencer v. State, 615 So. 2d 688 (Fla. 1993).

by corrections’ staff before it was mailed, described Sparre’s assertion that he

deliberately planned Pool’s murder several days before seeing her and intended to

carry it out by stabbing or other sharp force trauma. The trial judge ordered that the

letter be sealed and neither witness was permitted to read from or disclose the

contents of the letter. Sparre, 164 So. 3d at 1191-92.

The State advised the trial court that it was prohibited from giving the jury’s

death recommendation great weight because the defense chose not to present any

mitigation during the penalty phase. The State also acknowledged that the statutory

age mitigator applied, but urged the trial court to give it little weight because even

though Sparre was 19 years old when he murdered Pool, he was not an inexperienced

young man.’ Sparre, 164 So. 3d at 1192.

The trial court gave great weight to both the HAC and that the murder was

committed during the course of a burglary aggravators. The single statutory

mitigator that Sparre was 19 years old at the time of the murder was given moderate

weight. In its weighing decision, the trial court stated, to be significantly mitigating,

age must be “linked with some other characteristic” such as immaturity, but found

4 The January 2 letter was admitted into evidence on February 9, 2012. Sparre

previously wrote Chewning a letter in September 2011, stating, “human blood

stinks” and he “slumped that bitch.” DAR 0996-98. A redacted version of this letter

was available to the guilt-phase jury.

5 Non-statutory mitigators found included that fact that he had a child, received his

GED, participated in high school ROTC and served in the Army National Guard for

one year. Sparre, 164 So. 3d at 1192.

“no evidence of significant emotional immaturity.” Sparre, 164 So. 3d at 1192.

Thirteen non-statutory mitigating circumstances were found and assigned weight.

Id. at 1192-93.

Based on the heinous nature of Pool’s murder, the trial court concluded that

the aggravating factors far outweighed the mitigating circumstances. Although the

trial court did not give the jury’s death recommendation great weight, Sparre was

sentenced to death. The Florida Supreme Court affirmed Sparre’s conviction and

sentence, rejecting the argument that Florida’s capital sentencing scheme was

unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002), and also concluding that

Sparre’s claim lacked merit even if Ring applied. Sparre, 164 So. 3d at 1185, 1194.

Sparre raised only three claims on direct appeal; of particular relevance here, he did

not argue that his sentence violated the Eighth Amendment or that this Court’s

decision in Roper v. Simmons, 543 U.S. 551 (2005), should be extended to the facts of

his case. See id. at 1185-86. Sparre, 164 So. 3d at 1185, 1194. Sparre’s conviction

and death sentence were affirmed on January 22, 2015, and became final on

November 2, 2015, when this Court denied certiorari review. Sparre v. Florida, 136

S. Ct. 411 (2015).

State Postconviction Proceedings

Sparre filed his amended initial motion for state postconviction relief on June

19, 2017.6 PCR 967-1059. Among the 36 state postconviction claims, those raised in

6 See Fla. R. of Crim. P. 3.851.

this Petition include: 1) ineffective assistance of counsel claims under Strickland’ for

failure to a) retain a forensic pathologist, b) argue evidence supporting second-degree

murder in guilt-phase closing argument, and c) object to prosecutor statements in

guilt- and penalty-phase closing arguments; 2) trial court error by referring to the

jury’s decision as a “recommendation,” violating Caldwell;8 and 3) Sparre’s death

sentence is unconstitutional under Hurst v. Florida, 136 S. Ct. 616 (2016) (“Hurst v.

Florida’). The trial court denied all of the postconviction claims, which Sparre

appealed to the Florida Supreme Court. PCR 2845-2911.

The Florida Supreme Court upheld the trial court’s denial of Sparre’s PCM, as

well as finding no cumulative error resulted. Sparre, 289 So. 3d 839. Florida’s high

court rejected Sparre’s arguments and held: 1) trial counsel was not ineffective for

failing to consult and retain a forensic pathologist; 2) trial counsel was not ineffective

for failing to argue evidence supporting the second-degree murder defense theory in

closing argument; 3) trial counsel was not ineffective for failing to object to

statements made by the prosecutor in guilt- and penalty-phase closing arguments; 4)

no cumulative error; 5) the trial court did not err by failing to extend this Court’s

holding in Roper v. Simmons, 543 U.S. 551 (2005), even if that claim was not

procedurally barred because Sparre failed to raise it on direct appeal; and 6) his death

7 Strickland v. Washington, 466 U.S. 668 (1984).

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

8

sentence was constitutional in light of Hurst v. Florida and Hurst v. State, 202 So. 3d

40 (Fla. 2016) “Hurst v. State”). Sparre, 289 So. 3d 839.

Respondent notes, although it upheld the trial court’s denial of Sparre’s

Strickland claims, the Florida Supreme Court found trial counsel’s performance

deficient in two aspects: 1) the guilt-phase closing argument was deficient for

attacking the victim and not linking evidence to the second-degree murder theory;

and 2) failure to object to two out of numerous statements by the prosecutor. Sparre,

289 So. 3d at 851-53. However, counsel was not ineffective under Strickland because

the prejudice prong was not established and there was no reasonable probability that

the jury’s verdict would have been affected. Jd. It is the Florida Supreme Court’s

affirmance of the trial court’s denial of these postconviction claims upon which the

Petition is based.

REASONS FOR DENYING THE WRIT

I. THE FLORIDA SUPREME COURT’S DETERMINATION THAT TRIAL

COUNSEL WAS NOT INEFFECTIVE UNDER STRICKLAND DOES NOT

CONFLICT WITH ANY DECISION OF THIS COURT OR PRESENT AN

IMPORTANT OR UNSETTLED QUESTION OF LAW FOR THIS COURT’S

REVIEW.

Petitioner asks this Court to review the Florida Supreme Court’s prejudice

analysis related to three Strickland claims raised in his initial state postconviction

motion. Pet. at 23. The Petition incorporates a cumulative error argument, positing

that the Florida Supreme Court’s Strickland prejudice assessment must have

considered “the totality of counsel’s performance and its cumulative effect of the

deficient performance.” Pet. at 25. Sparre argues, Florida’s high court “conducted an

improper prejudice analysis” by overlooking claims that trial counsel failed to 1)

retain a forensic pathologist to support the second-degree murder defense theory; 2)

conduct an effective closing argument to support the defense theory; and 3) object to

prosecutor statements in guilt- and penalty-phase closing arguments. Pet. at 23-24.

This Court’s rules state that “[a] petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” Sup. Ct. R. 10; see also Tolan v.

Cotton, 572 U.S. 650, 661 (2014) (Alito, J., concurring) (explaining that error

correction is outside the mainstream of the Court’s function and is not among the

compelling reasons for granting certiorari review). This Court has stated, the

“Strickland standard is a general one, so the range of reasonable applications is

substantial.” Harrington v. Richter, 562 U.S. 86, 105 (2011).

While the Florida Supreme Court found trial counsel deficient in two of the

three Strickland claims, it declined to find counsel ineffective, because no prejudice

resulted and found no cumulative error. As discussed below, Petitioner’s claims are

fact-intensive and case specific, not warranting review. The Petition primarily offers

a factual re-discussion of the issues and argues that the court below erred in applying

Strickland to the facts of this case. The Petition fails to present a conflict with this

Court’s precedent or that of any state court of last resort. Consequently, certiorari

should be denied.

10

A. Failure to retain forensic pathologist

Petitioner argued that trial counsel was ineffective for failing to consult and

retain a forensic pathologist to testify in support of the defense theory that he killed

the victim in a frenzied state in order to negate premeditated first-degree murder.

PCR 989-90.9 The Florida Supreme Court rejected this claim concluding that counsel

made “a reasonable strategy decision.” Sparre, 289 So. 3d at 849. The Florida

Supreme Court noted, trial counsel testified at the state postconviction evidentiary

hearing “that retaining a forensic pathologist would have allowed the State to

emphasize the gruesome details of Sparre’s attack on the victim.” Jd. at 850.

Accepting this testimony, Florida’s high court stated,

the record shows that if trial counsel had consulted and retained [a

forensic pathologist] to testify at trial, the State would have been able

to emphasize the gruesome nature of the murder, and [the forensic

pathologist] would not have been able to fully rebut the testimony of Dr.

Giles, thus still leaving the jury without definitive expert testimony that

the killing was frenzied.

Id. This analysis does not conflict with Strickland and the Petition fails to include

such an argument.

Regarding ineffectiveness for not presenting a defense expert witness, this

Court explained that “Strickland [did] not enact Newton’s third law for the

presentation of evidence, requiring for every prosecution expert an equal and opposite

9 State Postconviction Claim Eleven (PCR 989-90); Issue 4 on appeal (SC18-1192).

11

expert from the defense.” Richter, 562 U.S. at 111. Often, defense counsel’s crossexamination of the prosecution’s expert witness “will be sufficient.” Id.

This is precisely what the Florida Supreme Court found, that “trial counsel

was able to cross-examine Dr. Giles concerning the subject matter that the defense

expert proposed by postconviction counsel . . . would have addressed.” Sparre, 289

So. 3d at 850. For example, on cross-examination at trial, counsel posed the following

to Dr. Giles regarding timing of the attack:

Q. And so, there’s really no way you could other than speculate the

amount of time it took for this attack?

A. I can’t give you an exact amount, just very brief — just an estimate

at best.

* * *

Q. And you really can’t say how quickly this attack took for 89 wounds,

can you? That’s speculation?

A. All I can give you is an estimate of a period.

DAR 1039, 1041.

At the state postconviction evidentiary hearing, trial counsel testified a

forensic pathologist was not necessary because of Sparre’s “concession of guilt, 89 stab

wounds’ and the “only thing to explore was the time of death.” PCR 3563-64. Counsel

further testified that not retaining a forensic pathologist was a strategy call, not to

“belabor the cause and manner of death, 89 stab wounds in front of a jury,” which

was uncontested, so “don’t bring things up because then it could open up other areas

of potential problems,” the jury would “hear it twice,” which “would be prejudicial.”

PCR 3566-68.

12

Petitioner’s reference to this Court’s comment in Buck v. Davis, 137 S. Ct. 759,

777 (2017), that “[s]ome toxins can be deadly in small doses,” is inconsequential. Pet.

at 25. The Buck Court found defense counsel ineffective for presenting a penaltyphase expert witness, whose report indicated that because the defendant was black,

he was “disproportionately predisposed . . . to violent conduct.” Id. at 775. This expert

testified “about the connection between Buck’s race and the likelihood of future

violence,” in a state where “the jury had to make a finding of future dangerousness

before it could impose [the] death [penalty],” as the equivalent of an aggravating

factor. Id. Noting that “[i]t would be patently unconstitutional for a state to argue

that a defendant is liable to be a future danger because of his race,” this Court found

that the expert’s testimony could not be “dismissed as ‘de minimis,” demonstrating

prejudice. Id. at 775-77. See also Lambrix v. Sec’y, Fla. Dept. of Corr., 851 F.3d 1158,

1171-72 (11th Cir. 2017) (describing the Strickland claim in Buck as one where

defense counsel himself presented “race-based evidence of future dangerousness”

which is a “pernicious” injury that harms not only the petitioner, but the community

at large). If anything, Buck presents the converse of Sparre’s case in that counsel

chose not to present an expert witness who had the potential to be detrimental.

The Florida Supreme Court conducted a thorough analysis in rejecting this

ineffectiveness claim. Sparre, 289 So. 3d at 849-50. Because it found trial counsel

was not deficient, the Florida Supreme Court had no need to reach Strickland’s

prejudice prong.

13

B. Failure to conduct effective closing argument

Sparre argues that the Florida Supreme Court wrongly concluded he did not

suffer prejudice from trial counsel’s guilt-phase closing argument, which attacked the

victim and failed to explain the defense theory that Sparre “snapped,” committing the

murder in a frenzy. Pet. at 23-24.1° Although the Florida Supreme Court found trial

counsel’s performance deficient, it held that no prejudice resulted because there was

no reasonable probability that counsel’s performance affected the jury’s guilty verdict

of premeditated first-degree murder. Sparre, 289 So. 3d at 851.

The sole federal authority Petitioner cites regarding counsel’s closing

argument, is this Court’s decision in Herring v. New York, 422 U.S. 853 (1975).

Herring is essentially a “right to counsel case,” where under New York state statute,

judges in a non-jury criminal trial were given the discretion of whether to hear closing

arguments. The trial judge in that case declined to hear defense counsel’s

“summation,” a decision reversed by this Court.

The facts and circumstances in Herring, have no bearing on the claim before

this Court. Moreover, the Petition offers no circuit court or state court of last resort

case citation, finding both deficient performance and prejudice where defense counsel

did not advance a theory in guilt-phase closing argument, that was not a defense to

first-degree murder.

10 State Postconviction Claim Ten (PCR 984-89); sub-claim, Issue 5. III on appeal

(SC18-1192).

14

C. Failure to object to prosecutor’s statements

Sparre asserts his Strickland claim for trial counsel’s failing to object to

numerous statements by the prosecutor, made in guilt- and penalty-phase closing

arguments warrants review. Pet. at 21 and 25.11 Petitioner inaccurately claims

defense counsel failed to object “to the prosecutor’s improper argument that Mr.

Sparre ... sought her out as ‘easy prey.” Pet. at 22-23. Trial counsel did object to

the penalty-phase “easy prey” comment as “name calling,” but was overruled. See

DAR 1344.

The Florida Supreme Court found trial counsel deficient for failing to object to

two prosecutorial comments, out of several, which 1) misrepresented the defense

theory that the killing was frenzied, rather than premediated; and 2) denigrated the

mitigating circumstance that he was under the influence of extreme mental or

emotional disturbance. Sparre, 289 So. 3d at 851-52.12 However, Florida’s high court

found Sparre failed to establish prejudice as a result of the deficiencies, thus rejecting

the Strickland claims. Id. at 853. This is a perfectly acceptable application of this

11 State Postconviction Claims Thirteen and Twenty-eight (PCR 992-93; 1038-40);

Issue 6 on appeal (SC18-1192).

12 The improper comments were: Guilt phase: “Was he just kind of having fun with

her? Is he just enjoying — was it just a thrill kill and then he just kind of got a

little carried away?” Sparre, 289 So. 3d at 852; DAR at 1092. Penalty phase: the

prosecutor “crossed the line into denigrating Sparre’s proposed mitigating

circumstance that he was under the influence of extreme mental or emotional

disturbance as demonstrated by the frenzied nature of the killing.” Jd. at 852;

DAR 1364-66.

15

Court’s controlling precedent. See Strickland, 466 U.S. at 697 (noting that both

deficiency and prejudice must be proven and that it is often “easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice”).

In its prejudice analysis for both claims, the Florida Supreme Court reasoned

that there was no reasonable probability that trial counsel’s failure to object during

either guilt or penalty-phase closing arguments affected the jury’s guilty verdict or

its sentencing recommendation. Sparre, 289 So. 3d at 8538. Sparre does not even

attempt to establish any conflict between the Florida Supreme Court’s decision and

this Court, or any other appellate court, regarding the Strickland claims. Because no

conflict or misapplication of the law exists, review should be denied.

D. Cumulative error

Finally, Petitioner combines the three claims discussed above to raise a

cumulative error issue for review. Sparre asserts, “the Florida Supreme Court

conducted an improper prejudice analysis,” which “overlooked” counsel’s deficiencies.

Pet. at 28. The Florida Supreme Court addressed the cumulative effect of trial

counsel’s errors in the context of the two deficiency findings—defense counsel’s

closing argument and failing to object to the prosecutor’s statements in closing

arguments. Nonetheless, the case before this Court is not the proper vehicle to raise

a cumulative error claim.

The Florida Supreme Court opinion in Sparre acknowledged, “[w]here trial

counsel is deficient in more than one area, however, we must ‘consider the impact of

16

these errors cumulatively to determine whether [the defendant] has established

prejudice.” Sparre, 289 So. 3d at 847 (citation omitted). The Florida Supreme Court

stated, “we must analyze whether these two deficiencies, taken together, are

sufficient to establish requisite prejudice. ... They are not.” Id. at 853.

Florida’s high court found trial counsel deficient for failing to deliver a proper

guilt-phase closing argument and object to the prosecutor’s closing argument that

“crossed the line into denigrating this defense.” Sparre, 289 So. 3d at 850-51, 853.

Taking these two deficiencies together and finding they were not “sufficient to

establish the requisite prejudice,” the Florida Supreme Court declined to find

cumulative error stating, “[t]here is no reasonable probability that, taken together,

these deficiencies affected the first-degree murder verdict or the sentence of death on

the record before us.” Id. at 853.

This is not a case where the state high court found counsel’s deficient

performance in two or more instances and then explicitly refused to consider

cumulative prejudice. Instead, the Florida Supreme Court reasonably applied the

clearly established law of Strickland, finding deficiency in its analysis, but no

prejudice. See, e.g., Ponticelli v. Sec’y, Fla. Dept. of Corr., 690 F.3d 1271 (11th Cir.

2012). Because prejudice was not established, any cumulative error claim is

meritless.

In sum, Petitioner has not established any reason for this Court to grant review

of these fact-specific claims. There is no conflict between the Florida Supreme Court

17

and this Court or any other state supreme court regarding the denial of relief under

Strickland.

IJ. THE FLORIDA SUPREME COURT’S DECISION NOT TO EXTEND ROPER V.

SIMMONS’ EIGHTH AMENDMENT’S PROHIBITION OF SENTENCING

JUVENILES TO DEATH DOES NOT WARRANT REVIEW.

Sparre seeks certiorari review of the Florida Supreme Court’s decision not to

extend the Eighth Amendment’s prohibition of sentencing to death capital defendants

under the age of 18 at the time of the murder, as set forth in Roper, 543 U.S. 551.18

This case is not a good vehicle for considering that issue. It is undisputed that

Petitioner did not raise any such claim on direct appeal. See Sparre, 164 So. 3d at

1185-86; Pet. 25-26. What is more, Petitioner does not and cannot point to any

justification for that procedural default. Notably, Roper was decided in 2005;

Petitioner’s sentencing hearing took place in 2012, Sparre, 164 So. 3d at 1192; and

Petitioner's Roper claim relies heavily on publications that predated his sentencing

hearing, see Pet. 29-33 (citing sources from 2004, 2005, 2009, 2010, and 2011).

Petitioner is wrong to assert that “[t]here are clear indications in the Florida

Supreme Court’s opinion in Branch that the state court would afford Mr. Branch

relief if it did not feel bound by its view of this Court’s current Eighth Amendment

jurisprudence.” Pet. 26. Indeed, the court in Branch said just the opposite:

On direct appeal, Branch did not challenge the trial court's rejection of

age as a mitigating circumstance. Furthermore, the Supreme Court

decided Roper on March 1, 2005. Branch filed the habeas petition in

13 State Postconviction Claim Thirty-four (PCR 1051-53); Issue 8 on appeal.

18

Branch IT on August 31, 2005, and he did not assert that he was

ineligible for execution pursuant to Roper. Accordingly, this claim is

waived as it could have been raised previously.

Branch v. State, 236 So. 3d 981, 986 (Fla. 2018), cert. denied, Branch v. Florida, 138

S. Ct. 1164 (2018) (No. 17-7825) (emphasis added).

Petitioner’s claim is likewise “waived,” as a matter of state law, “as it could

have been raised previously.” See Branch, 236 So. 3d at 986.

It is no answer to say that the Florida Supreme Court cited precedent that

“plainly forecloses relief on the merits of Sparre’s Roper claim.” Sparre, 289 So. 3d at

853 (citing Branch, 236 So. 3d at 987). Such precedent, the court held, bars Sparre’s

Roper claim “even assuming it is not procedurally barred because Sparre failed to

raise it on direct appeal.” Jd. That precedent does not suggest that Florida’s

procedural default doctrine is somehow nullified by or “interwoven with federal law,”

Pet. 25. At a minimum, this Court should not be asked to resolve the Eighth

Amendment claim Petitioner presents in a case where that claim was not raised on

direct review and thus appears to be waived as a matter of state law.

Even putting aside Petitioner’s unexcused procedural default, his Roper claim

does not merit this Court’s review. Certiorari is not a matter of right, but of judicial

discretion and will be granted only for compelling reasons. Sup. Ct. R. 10. Review

would be appropriate where a conflict exists among United States courts of appeals

and state courts concerning the meaning of provisions of federal law, such as that in

Roper. See Braxton, 500 U.S. at 347; see also Sup. Ct. R. 10(b). However, in this case,

19

there is no conflict between the Florida Supreme Court’s decision not to extend Roper

and this Court’s Eighth Amendment jurisprudence. Nor is there an undecided

question of federal law.

Since this Court’s Roper decision, federal courts of appeal that have reached

the issue of its expansion have declined to do so. See United States v. Bernard, 762

F.3d 467, 482 (5th Cir. 2014); In re Garner, 612 F.3d 533, 534 (6th Cir. 2010); and

Melton v. Sec’y, Fla. Dept. of Corr., 778 F.3d 1234, 1237 (11th Cir. 2015). Two state

supreme courts have also rejected the invitation to expand Roper. See Bowling v.

Commonwealth, 224 S.W.3d 577 (Ky. 2006); State v. Tucker, 181 So. 3d 590 (La. 2015).

Most importantly, this Court has continued to identify 18 as the critical age for

purposes of Eighth Amendment jurisprudence. See Miller v. Alabama, 567 U.S. 460,

465 (2012) (prohibiting mandatory sentences of life without parole for homicide

offenders who committed their crimes before the age of 18); Graham v. Florida, 560

U.S. 48, 74-75 (2010) (prohibiting sentences of life without parole for non-homicide

offenders who committed their crimes before the age of 18).

Petitioner has not shown that the well-established law of Roper was

misapplied. Nor, has Petitioner provided this Court with any state court of last resort

decision which advocates its extension, as he urges this Court should do. Moreover,

Sparre has not offered any compelling reasons to revisit this Court’s well-settled

precedent.

20

Sparre was 19 years old when he murdered Pool, stabbing her approximately

89 times. His age was accepted as a mitigating circumstance and assigned moderate

weight. PCR 592. Further, his maturity was illustrated by the facts that he had a

child, received his high school GED, participated in high school ROTC and served in

the Army National Guard for one year. Sparre, 164 So. 3d at 1192. With no evidence

contrary to the Florida Supreme Court’s decision, Sparre’s death sentence is

constitutional and certiorari review should be denied.

Ii. THE FLORIDA SUPREME COURT’S HURST V. STATE HARMLESS ERROR

ANALYSIS DOES NOT PRESENT A CONFLICT WITH THIS COURT’S

PRECEDENT OR AN UNSETTLED QUESTION OF CONSTITUTIONAL LAW.

Petitioner seeks certiorari review of the Florida Supreme Court’s rejection of

his Hurst v. Florida state postconviction claim, claiming that the judge, not the jury,

made the requisite findings to impose the death penalty.!14 Sparre inaccurately

asserts that although the jury's sentencing recommendation was unanimous, it

“made none of the findings of fact required for a death sentence under Florida law.”

Pet. at 37. Sparre also comingled a purported Caldwell violation in this issue,

asserting that the jury's sentencing role was diminished and suggests this Court

should “revisit the state’s decisional law on Caldwell, particularly in light of Hurst.”

Pet. at 37-39. Sparre specifically frames his question before this Court as a narrow

one: “The only issue here is whether the Hurst error was ‘harmless.” Pet. at 37.

14 State Postconviction Claim Thirty-six (PCR 1055-56); Issue 9 on appeal (SC18-

1192).

21

The Florida Supreme Court’s denial of Sparre’s Hurst and Caldwell claims is

supported by well-established federal precedent. As will be seen in the merits

analysis, Sparre has not demonstrated that there is anything debatable about the

claim he is now urging this Court to review.

Rule 10 of the Rules of the Supreme Court of the United States identifies the

relevant considerations in determining the propriety of certiorari review. Sparre

makes no effort to establish that any of these considerations are met.

Just last term, this Court concluded that “Ring and Hurst do not apply

retroactively on collateral review.” McKinney v. Arizona, 140 S. Ct. 702, 708 (2020)

(citing Schriro v. Summerlin, 542 U.S. 348, 358 (2004)). McKinney, a petitioner on

death row, “advanced an... argument based on Ring and Hurst.” Id. He argued

that he was entitled to relief because Ring and Hurst “now requir[e]” a jury to find

aggravating circumstances that make a defendant eligible for the death penalty. Id.

The Court rejected that argument, pointing out that his “case became final on direct

review in 1996, long before Ring and Hurst.” Id. Because “Ring and Hurst do not

apply retroactively on collateral review,” and because McKinney’s case “[came] to [the

Court] on... collateral review, Ring and Hurst do not apply.” Id.

Sparre’s conviction and sentence became final in 2015. He therefore cannot

claim the benefit of Hurst under federal law.

15 Sparre was able to raise his Hurst claim in state court only because the Florida

Supreme Court has adopted a broader approach to retroactivity under state law.

22

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