Opposition Brief — Raymond Bright, Petitioner v. Florida

No. 20-6824

IN THE

Supreme Court of the United States

_______________

RAYMOND BRIGHT,

v.

STATE OF FLORIDA,

_______________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Florida

_______________

BRIEF IN OPPOSITION

_______________

ASHLEY MOODY

Attorney General of

Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

amit.agarwal@

myfloridalegal.com

AMIT AGARWAL

Solicitor General

*Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General

Counsel for Respondent

i

QUESTION PRESENTED

Petitioner Raymond Bright was convicted of firstdegree murder. The penalty-phase jury unanimously

found the existence of an aggravating factor beyond a

reasonable doubt; it also unanimously determined

that that the aggravating factors were sufficient to

warrant death, that those factors outweighed the

mitigating circumstances, and that Petitioner should

be sentenced to death. The trial judge agreed and

sentenced Petitioner to death.

On appeal, Petitioner argued for the first time that

the trial court committed “fundamental error” in not

instructing the jury that its findings as to the

sufficiency and weight of the aggravating

circumstances must be made beyond a reasonable

doubt. The Florida Supreme Court rejected that

claim. This Court’s decision in Hurst v. Florida, 577

U.S. 92 (2016), it explained, did not require that the

findings at issue here—that “sufficient aggravating

factors exist” and that those factors “outweigh the

mitigating circumstances”—be made beyond a

reasonable doubt. Accordingly, “no fundamental error

occurred” even if Petitioner did not waive any such

claim by agreeing to the jury instructions. Pet. App.

11 & 31 n.11. This Court subsequently confirmed that

Hurst “did not require jury weighing of aggravating

and mitigating circumstances.” McKinney v. Arizona,

140 S. Ct. 702, 708 (2020).

The question presented is:

Whether the Florida Supreme Court erred, as a

matter of federal law, in rejecting Petitioner’s

unpreserved claim of fundamental error.

ii

TABLE OF CONTENTS

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

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

STATEMENT ............................................................. 1

REASONS FOR DENYING THE PETITION ........... 8

I. This Case Is a Poor Vehicle for Resolving

Petitioner’s Question Presented ..................... 8

II. The Decision Below Does Not Conflict with

This Court’s Precedents ................................ 12

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

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

iii

TABLE OF AUTHORITIES

Cases

Alleyne v. United States,

570 U.S. 99 (2013)............................................ 13, 18

Apprendi v. United States,

530 U.S. 466 (2000).......................................... 14, 22

Bailey v. State,

998 So. 2d 545 (Fla. 2008) .......................................9

California v. Carney,

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

Card v. State,

803 So. 2d 613 (Fla. 2001) .......................................9

Clemons v. Mississippi,

494 U.S. 738 (1990)................................................ 24

Daniels v. State,

121 So. 3d 409 (Fla. 2013) .......................................9

Eddings v. Oklahoma,

455 U.S. 104 (1982).......................................... 17, 21

Garzon v. State,

980 So. 2d 1038 (Fla. 2008) ............................... 9, 10

Harrell v. State,

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

Hurst v. Florida,

577 U.S. 92 (2016).......................................... passim

In re Winship,

397 U.S. 358 (1970)................................................ 13

Kansas v. Carr,

577 U.S. 108 (2016).......................................... 12, 21

Kansas v. Marsh,

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

Larkins v. State,

739 So. 2d 90 (Fla. 1999) ....................................... 11

iv

McCray v. New York,

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

McKinney v. Arizona,

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

Oregon v. Ice,

555 U.S. 160 (2009)................................................ 24

Proffitt v. Florida,

428 U.S. 242 (1976).................................... 22, 23, 24

Ring v. Arizona,

536 U.S. 584 (2002)...................................... 1, 15, 24

Rogers v. State,

285 So. 3d 872 (Fla. 2019) ................................. 7, 16

Sanford v. Rubin,

237 So. 2d 134 (Fla. 1970) .......................................9

Smiley v. State,

295 So. 3d 156 (Fla. 2020) ................................. 9, 11

State v. Poole,

297 So. 3d 487 (Fla. 2020) ........................... 2, 16, 20

State v. T.G.,

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

United States v. Gabrion,

719 F.3d 511 (6th Cir. 2013).................................. 23

Williams v. State,

209 So. 3d 543 (Fla. 2017) ................................. 9, 11

Statutes

18 U.S.C. § 3553(a) .................................................... 23

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

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

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

Fla. Stat. § 921.141(2)(b) .............................................3

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

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

v

Fla. Stat. § 921.141(2)(b)(2)(c) ............................ 23, 24

Fla. Stat. § 921.141(3)(a)(2) ...................................... 23

1

STATEMENT

1. In Hurst v. Florida, 577 U.S. 92 (2016), this

Court held that Florida’s capital sentencing scheme

violated the Sixth Amendment in light of Ring v.

Arizona, 536 U.S. 584 (2002). Under Florida law, the

maximum sentence a capital felon could receive based

on a conviction alone was life imprisonment. Hurst,

577 U.S. at 95. Capital punishment was authorized

“only if an additional sentencing proceeding

‘result[ed] in findings by the court that such person

shall be punished by death.’” Id. (quoting Fla. Stat.

§ 775.082(1) (2010)). At that additional sentencing

proceeding, a jury would render an advisory verdict

recommending for or against the death penalty, and

in making that recommendation was instructed to

consider whether sufficient aggravating factors exist,

whether mitigating circumstances exist that outweigh

the aggravators, and, based on those considerations,

whether death is an appropriate sentence. Fla. Stat.

§ 921.141(2)(a)-(c) (2010).

This Court struck down that scheme in Hurst.

Observing that it had previously declared invalid

Arizona’s capital sentencing scheme because the jury

there did not make the “required finding of an

aggravated

circumstance”—which

exposed

a

defendant to “a greater punishment than that

authorized by the jury’s guilty verdict”—the Court

held that that criticism “applie[d] equally to

Florida’s.” Hurst, 577 U.S. at 98 (quoting Ring, 536

U.S. at 604). “Florida’s sentencing scheme, which

required the judge alone to find the existence of an

aggravating

circumstance,

[was]

therefore

unconstitutional.” Id. at 103.

2

In response to Hurst and the Florida Supreme

Court’s subsequent interpretation of that decision, the

Florida Legislature repeatedly amended Section

921.141 to comply with those rulings. As relevant

here, the amended law requires the jury, not the

judge, to “determine if the state has proven, beyond a

reasonable doubt, the existence of at least one

aggravating factor.” Fla. Stat. § 921.141(2)(a) (2017).

If the jury concludes that no aggravating factor has

been proven, the defendant is “ineligible” for the death

penalty. Id. § 921.141(2)(b)1. If on the other hand the

jury unanimously finds at least one aggravator, the

defendant is “eligible for a sentence of death.” Id.

§ 921.141(2)(b)2. In that event, the jury must make a

sentencing recommendation based on a weighing of

three considerations: first, “[w]hether sufficient

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

1 As construed by the Florida Supreme Court, “it

has always been understood that . . . ‘sufficient

aggravating circumstances’ means ‘one or more.’”

State v. Poole, 297 So. 3d 487, 502 (Fla. 2020) (citing

cases). Any “suggestion that ‘sufficient’ implies a

qualitative assessment of the aggravator—as opposed

simply to finding that an aggravator exists—is

unpersuasive and contrary to this decades-old

precedent.” Id. at 502–03 (disapproving prior case

holding that “the existence of an aggravator and the

sufficiency of an aggravator are two separate findings,

each of which the jury must find unanimously,” and

explaining that, “[u]nder longstanding Florida law,

there is only one eligibility finding required: the

existence of one or more statutory aggravating

circumstances”).

3

aggravating factors exist which outweigh the

mitigating circumstances found to exist”; and third,

based on the other two considerations, “whether the

defendant should be sentenced to life imprisonment

without the possibility of parole or to death.”

§ 921.141(2)(b)2.a-c.

By assigning to the jury those latter three findings,

the Florida Legislature granted capital defendants

procedural protections beyond what Hurst required.

See Hurst, 577 U.S. at 103 (requiring a jury to find

“the existence of an aggravating circumstance”); see

also id. at 105–06 (Alito, J., dissenting) (“[T]he Court’s

decision is based on a single perceived defect, i.e., that

the jury’s determination that at least one aggravating

factor was proved is not binding on the trial judge.”).

Neither Section 921.141 nor the standard jury

instructions require that the jury undertake those

determinations by any particular standard of proof.

2. Early in the morning on February 19, 2008,

Petitioner Raymond Bright murdered Derrick King

and Randall Brown. Pet. App. 3–5. King was twenty

years old; Brown was sixteen. Id. at 3.

Their bodies were discovered in Petitioner’s home.

King was face down on the carpet next to a sofa,

partially wrapped in a sleeping bag or comforter. Id.

The sofa was saturated with blood on one end, which

was adjacent to where King’s head rested on the floor.

Id. Blood was on the wall behind the sofa and the

ceiling above it. Id. It was cast-off blood—defined as

droplets of blood that are flung from a weapon and

make a trail of blood where they land—and the

4

pattern was consistent with someone being on the

couch and swinging his arm back. Id.

The sixteen-year-old Brown was found seated

sideways in a recliner with his head leaning up

against a wall and a blanket covering his head. Id.

The wall against which Brown’s body rested showed a

pattern of blood that radiated from his head, and

there was also blood on the ceiling. Id. Brown’s blood

had also puddled on the floor. Above Brown’s head

was a framed picture with one side of the frame

broken away. Id. That one side was indented,

consistent with having been struck by something

round, such as a hammer. Id. Police found the

hammer buried in Petitioner’s yard. Id.

Petitioner told two people about what occurred on

the night of the murders. Id. at 4. Prior to his arrest,

Petitioner informed friend and former coworker

Benjamin Lundy that he had “screwed up” and may

have killed two people. Id. Petitioner told Lundy that

the murders occurred after a confrontation erupted

when one of the victims, who were guests in

Petitioner’s home, accused Petitioner of stealing

drugs. Id.

Petitioner told another friend that he went into the

kitchen at 2 a.m. on February 19. Id. at 4–5. King was

on the sofa and Brown was in the recliner. Id. at 5.

Brown had a nine-millimeter handgun and started

waving it around. Id. King rose from the sofa and took

the gun from Brown. Id. Petitioner saw an

opportunity and attempted to take the gun from King.

Id. As the men struggled, the gun discharged. Id. The

gunshot startled King and he released the gun. Id.

5

Petitioner then pointed it at King and attempted to

shoot him, but the gun misfired. Id. Petitioner

dropped the weapon and tried to run out of the house,

but he tripped and fell. Id. He grabbed a hammer that

was within reach, turned around, and began striking

King, knocking him back toward the sofa where King

had previously been lying down. Id. When Petitioner

turned around, he saw that Brown was about to pick

up the handgun. Id. Petitioner then struck Brown

with the hammer. Id. The next time Petitioner turned

toward the sofa, he saw King reaching for a rifle. Id.

Petitioner again struck King with the hammer. Id.

When he stopped, he could hear King and Brown

breathing and gurgling, but then the room became

silent. Id. Petitioner, remarking on the events, said

that he had “lost it.” Id.

3. A jury found Petitioner guilty of both murders,

and he was sentenced to death. Id. A Florida

postconviction court later vacated the sentences and

ordered a new penalty phase due to trial counsel’s

ineffective assistance. Id. at 6. That new penalty

phase was conducted in 2017. Id.

At that proceeding, the jury heard that Petitioner

was previously convicted of armed robbery after he

held up a store clerk at knifepoint. Id. It also learned

of the extent of the victims’ injuries. Id. at 6–7. King

died of blunt force trauma to the head. Id. at 7. He had

38 blunt impact injuries to his head and about 20

injuries to his extremities. Id. King suffered a

laceration through the upper eyelid above the right

eyebrow, through the left eye. Id. His eye was sunken.

Id. One injury on his head went through his scalp to

6

reveal his underlying skull. Id. King was covered in

numerous defensive wounds. Id.

Brown also died of blunt head trauma, likely

inflicted with a hammer. Id. at 6. He had more than

14 injuries to the outside of his head, which included

lacerations, bruises, contusions, and fractures. Id.

These did not include the skull fractures or brain

injuries. Id. Brown had many defensive injuries,

including a fracture of his left ulna, punctate-type

lacerations to his left arm, and injuries to his wrists,

hands, and thigh. Id. at 6–7.

Both King and Brown were still alive when they

suffered these injuries. Id.

The jury was instructed that, before it could

recommend a sentence of death, it had to find the

existence of at least one aggravator beyond a

reasonable doubt. R. Vol. 1 at 455. It was also told to

assess the sufficiency of that aggravator and to weigh

the aggravators against any mitigators. Id. at 456–57.

At the charge conference, Petitioner did not object to

that instruction or request that the jury be told it

must find beyond a reasonable doubt that the

aggravators were sufficient and outweighed any

mitigators. R. Vol. 2 at 1111–12, 1114, 1286.

As to both murders, the jury unanimously found

beyond a reasonable doubt that Petitioner had been

previously convicted of a capital felony or a felony

involving the use or threat of violence to a person. Pet.

App. 8–9. As to King, the jury unanimously found

beyond a reasonable doubt that the murder was

perpetrated in a heinous, atrocious, and cruel fashion.

7

Id. at 9. It unanimously rejected both statutory

mitigating circumstances alleged by Petitioner and

further concluded, by an 11-1 vote, that there was

nothing in Petitioner’s “character, background, or life

or the circumstances of the offense” that mitigated

against imposition of the death penalty. Id. As to both

murders, the jury unanimously determined that the

aggravating factors were sufficient to warrant a

sentence of death, that those factors outweighed the

mitigating circumstances, and that Petitioner should

be sentenced to death. Id.

In performing its own sentencing calculus, the trial

court found that several nonstatutory mitigators had

been established but assigned them “no weight” or

“little weight.” Id. at 10. It determined that the

“aggravating circumstances heavily outweigh[ed] the

mitigating circumstances” and that death was the

appropriate penalty. Id.

4. On appeal to the Florida Supreme Court,

Petitioner acknowledged that he did not object to the

jury instructions but argued that the trial court

committed “fundamental error” in failing to instruct

the jury that its determinations as to sufficiency and

weight must be made beyond a reasonable doubt.

Initial Br., Bright v. Florida, No. SC17-2244, at *42–

43 (Sept. 13, 2018). The court rejected that claim. Pet.

App. 11. It explained that, under its most recent

pronouncements, those findings “are [not] elements.”

Id. As non-elements, sufficiency and weight “are not

subject to the beyond a reasonable doubt standard of

proof,” and thus “no fundamental error occurred.” Id.

(quoting Rogers v. State, 285 So. 3d 872, 885–86 (Fla.

2019)).

8

5. Several months after the Florida Supreme

Court’s decision, this Court decided McKinney v.

Arizona, 140 S. Ct. 702 (2020). There, the Court

confirmed that, under Ring and Hurst, a jury must

find the fact of an aggravating factor but need not

weigh the aggravating and mitigating circumstances

or make the ultimate sentencing decision. Id. at 707.

Those determinations may instead constitutionally be

made by a judge. In other words, the weight of the

aggravators, like the sufficiency of the aggravators, is

not an element of capital murder under Apprendi and

its progeny. See id.

REASONS FOR DENYING THE PETITION

I.

This Case Is a Poor Vehicle for Resolving

Petitioner’s Question Presented.

In the proceeding below, Petitioner conceded that

he “failed to request” the jury instructions he now

claims were constitutionally required. Initial Br.,

Bright v. Florida, No. SC17-2244, at *42 (Sept. 13,

2018). He thus admitted that the Florida Supreme

Court would review his claim only for “fundamental

error.” Id. at *43.

The Florida Supreme Court held that “no

fundamental error occurred,” even assuming

Petitioner had not “waived fundamental error review

by agreeing to the jury instructions.” Pet. App. 11, 31

n.11. That holding does not warrant this Court’s

review, and Petitioner does not argue otherwise. See

Pet. i (framing question presented without reference

to the fundamental error standard applicable to

unpreserved claims of instructional error); id. at 7–15

9

(omitting any discussion of the fundamental error

standard in reasons for granting the petition).

Assuming that the separate question purportedly

raised in the Petition would otherwise warrant this

Court’s review, the Court should have the opportunity

to address that issue in a case where the issue was

raised in the trial court and preserved for appellate

review. What is more, it should take up that question

in a case where the answer will affect the eventual

outcome, and not where—as here—an unexcused

procedural default renders the defendant ineligible

for relief as a matter of state law.

1. Under Florida law, jury instructions “are subject

to the contemporaneous objection rule and, ‘absent an

objection at trial, can be raised on appeal only if

fundamental error occurred.’” Daniels v. State, 121 So.

3d 409, 417 (Fla. 2013) (quoting Garzon v. State, 980

So. 2d 1038, 1042 (Fla. 2008)). Fundamental error, in

the capital context, is that rare error which “reaches

down into the validity of the trial itself to the extent

that the jury’s recommendation of death could not

have been obtained without the assistance of the

alleged error.” Smiley v. State, 295 So. 3d 156, 172

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

(Fla. 2001)). Florida’s appellate courts apply the

fundamental error doctrine “very guardedly,” Sanford

v. Rubin, 237 So. 2d 134, 137 (Fla. 1970), and place

upon the complaining party the “high burden” of

establishing that the unpreserved error was

fundamental. Williams v. State, 209 So. 3d 543, 558

(Fla. 2017) (quoting Bailey v. State, 998 So. 2d 545,

554 (Fla. 2008)).

10

Underlying Florida’s procedural default doctrine

are the State’s important interests in preventing

gamesmanship and ensuring trial judges are apprised

of their mistakes before it is too late to correct them,

thereby avoiding costly retrials. See, e.g., Harrell v.

State, 894 So. 2d 935, 940–41 (Fla. 2005) (“[T]he

contemporaneous objection rule serves to avert the

gamesmanship of allowing errors to go undetected

and uncorrected and thus preventing the appellate

court from reviewing an actual decision of the trial

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

Both interests are implicated here.

At trial, Petitioner acquiesced to the jury

instructions and failed to object on the ground he

would later raise in the Florida Supreme Court. Asked

whether the defense was “okay with” the instruction

that jurors must unanimously find that the

aggravators outweigh any mitigators, defense counsel

said yes. R. Vol. 2 at 1111–12. Petitioner himself

agreed to the proposed jury instructions. Id. at 1114.

And defense counsel did not object when the

instructions were read to the jury. Id. at 1286.

Petitioner provides no justification for not raising

his claim in the trial court. Notably, the principal

cases on which Petitioner relies (Winship, Apprendi,

and Hurst) were decided in 1970, 2000, and 2016—

before his own sentencing hearing in 2017. See Pet. 8–

13. Accordingly, it is undisputed that this case

squarely implicates the policies underlying Florida’s

contemporaneous objection rule, which “prohibits

counsel from attempting to gain a tactical advantage

by allowing unknown errors to go undetected and then

seeking a second [sentencing hearing] if the first

11

decision is adverse to the client.” See T.G., 800 So. 2d

at 210.

That procedural default makes this case a poor

vehicle for resolving the federal constitutional

question Petitioner presents for this Court’s review.

Not only should Petitioner not be rewarded for his

failure to object at trial, but the narrow issue in this

case, as Petitioner conceded in the proceeding below,

is whether the unobjected-to jury instruction was

“fundamental error” under Florida law. Petitioner

does not ask this Court to resolve that state-law issue.

And in his Petition, he does not even attempt to argue

that his “sentence could not have been obtained

without the assistance of the alleged error,” Smiley,

295 So. 3d at 174; see Pet. 7–15. So Petitioner offers

no basis for disturbing the Florida Supreme Court’s

holding that “no fundamental error occurred.” Pet.

App. 11.

2. Even if the state trial court erred in not sua

sponte offering an instruction Petitioner did not ask

for—and that no court has ever deemed necessary—

any such determination from this Court would not

affect Petitioner’s sentence. That is because Petitioner

cannot meet his “high burden,” under Florida law, of

showing that “the jury’s recommendation of death

could not have been obtained without the assistance

of the alleged error,” Smiley, 295 So. 3d at 172; see

Williams, 209 So. 3d at 558.

Of particular relevance, ample record evidence

supports the jury’s determination that Petitioner’s

murder of King was heinous, atrocious, and cruel. See

Pet. App. 3–7; cf. Larkins v. State, 739 So. 2d 90, 95

12

(Fla. 1999) (calling this aggravator one of “the most

serious aggravators set out in the statutory

sentencing scheme”). And the jury found that the

murders of both King and Brown were aggravated

because Petitioner was previously convicted of a

capital felony or a felony involving the use or threat of

violence: the contemporaneous murder, as well as

Petitioner’s prior conviction for armed robbery. Pet.

App. 8–9. In addition, the jury unanimously rejected

Petitioner’s

proposed

statutory

mitigating

circumstances and concluded, by a vote of 11-1, that

there did not exist any other factors in Petitioner’s

character, background, or life—or the circumstances

of the offense—mitigating against the imposition of

the death penalty. Id. at 9.

Not only can Petitioner not demonstrate prejudice

under his unique facts, the better view is that “[i]t

would [have] mean[t] nothing . . . to tell the jury that”

certain “value call[s]”—like whether aggravators

outweigh mitigators and whether the defendant

deserves mercy—must be found “beyond a reasonable

doubt,” see Kansas v. Carr, 577 U.S. 108, 119 (2016).

In short, Petitioner cannot show fundamental

error under state law, and therefore would not be

entitled to any relief even if his federal constitutional

claim had merit.

II.

The Decision Below Does Not Conflict

with This Court’s Precedents.

1. Petitioner does not assert that his question

presented implicates a division among the lower

courts. See Pet. 7–15. Instead, he claims that the

13

Florida Supreme Court’s decision “conflicts with this

Court’s opinions in Apprendi, Ring, Alleyne, and

Hurst.” Id. at 10; see id. at 7–14. Petitioner is

incorrect.

As threshold matter, none of the cases Petitioner

cites addressed, and none had occasion to address, the

precise question at issue in this case: whether a trial

court commits “fundamental error” within the

meaning of Florida law when it does not sua sponte

instruct the jury that it should apply the beyond-areasonable-doubt standard to the kind of normative

sentencing factors at issue here. See Pet. App. 11.

That consideration, standing alone, refutes

Petitioner’s claim that “the Florida Supreme Court’s

opinion in this case . . . conflicts with this Court’s

opinions.” Pet. 10.

2. Even putting aside the narrow holding of the

decision below, the cases Petitioner cites do not

conclude

that

the

beyond-a-reasonable-doubt

standard applies to non-factual determinations

intended

to

guide

the

jury’s

sentencing

recommendation. To the contrary, those cases evince

this Court’s understanding that that standard of proof

is limited to factual findings. By its terms, In re

Winship applies the beyond-a-reasonable-doubt

standard only to “the factfinder.” 397 U.S. 358, 363–

64 (1970); see also id. (referencing “the trier of fact”).

The Due Process Clause, the Court there held,

“protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is

charged.” Id. at 364; see also Alleyne v. United States,

570 U.S. 99, 103 (2013) (“Any fact that, by law,

14

increases the penalty for a crime is an ‘element’ that

must be submitted to the jury and found beyond a

reasonable doubt.”).

Consistent with Winship, this Court in Apprendi

expressly and repeatedly explained that the beyonda-reasonable-doubt standard of proof applies to

“facts.” For example, the Court:

•

required the States to “adhere to the basic

principles undergirding the requirements of

trying to a jury all facts necessary to constitute

a statutory offense, and proving those facts

beyond reasonable doubt,” Apprendi v. United

States, 530 U.S. 466, 483–84 (2000);

•

referenced the jury’s “assessment of facts,” id.

at 490 (quotation marks omitted);

•

described the “novelty of a legislative scheme

that removes the jury from the determination

of a fact that, if found, exposes the criminal

defendant to a penalty exceeding the maximum

he would receive if punished according to the

facts reflected in the jury verdict alone,” id. at

482–83 (emphasis omitted); and

•

explained that “constitutional limits exist to

States’ authority to define away facts necessary

to constitute a criminal offense” and “a state

scheme that keeps from the jury facts that

‘expos[e] [defendants] to greater or additional

punishment’ may raise serious constitutional

concern.” Id. at 486 (internal citation omitted).

15

Thus, Apprendi did not hold that the beyond-areasonable-doubt standard should be extended to nonfactual normative judgments of the kind at issue here,

and this Court’s statements concerning that standard

of proof undermine rather than support Petitioner’s

claim.

3. This Court’s cases applying Apprendi to the

capital sentencing context likewise did not hold that

the Due Process Clause requires the jury to

determine, beyond a reasonable doubt, that normative

considerations support the imposition of the death

penalty. In Ring, for example, this Court explained

that “[c]apital defendants, no less than noncapital

defendants . . . are entitled to a jury determination of

any fact on which the legislature conditions an

increase in their maximum punishment.” 536 U.S. at

589. So too in Hurst, where this Court reiterated that

the sentencing scheme in Ring violated the

defendant’s right to have “a jury find the facts behind

his punishment.” 577 U.S. at 98; see also id. at 94

(“The Sixth Amendment requires a jury, not a judge,

to find each fact necessary to impose a sentence of

death.”).

In sum, the decision below does not conflict with

this Court’s precedents. None of the cases Petitioner

cites held that a jury must find beyond a reasonable

doubt that aggravating factors outweigh mitigating

circumstances or are sufficient to warrant the

imposition of capital punishment; and still less did

those cases hold that a trial court commits

fundamental error under Florida law insofar as it does

not sua sponte provide some such instruction. What is

more, the reasoning of those cases expressly ties the

16

beyond-a-reasonable-doubt standard to factfinding of

a kind not at issue here—and thus undermines rather

than supports Petitioner’s claim.

III.

The Decision Below Is Correct.

In rejecting Petitioner’s claim of fundamental

error, the Florida Supreme Court explained that

Petitioner failed to show any instructional error—

fundamental or otherwise. See Pet. App. 11. The court

was right to hold that “no fundamental error

occurred,” see id., and its opinion correctly applied this

Court’s precedents to Florida’s capital sentencing

scheme.

1. As the Florida Supreme Court has explained,

the penalty phase findings at issue here—whether the

aggravators are sufficient and whether those

aggravators outweigh the mitigators—“are not

elements of the capital felony of first-degree murder.”

Rogers v. State, 285 So. 3d 872, 885 (Fla. 2019), cert.

denied Rogers v. Florida, 141 S. Ct. 284 (Oct. 5, 2020);

see also State v. Poole, 297 So. 3d 487, 503–13 (Fla.

2020), cert denied Poole v. Florida, No. 20-250 (Jan.

11, 2021). “Rather, they are findings required of a

jury: (1) before the court can impose the death penalty

for first-degree murder, and (2) only after a conviction

or adjudication of guilt for first-degree murder has

occurred.” Rogers, 285 So. 3d at 885 (emphases in

original). That is, they are sentencing factors intended

to make the imposition of capital punishment less

arbitrary by guiding the exercise of the judge and

jury’s discretion within the applicable sentencing

range.

17

The plain text of Florida’s death-penalty statute

supports that reading:

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

aggravating factor, the defendant is eligible for

a sentence of death and the jury shall make a

recommendation to the court as to whether the

defendant shall be sentenced to life

imprisonment without the possibility of parole

or to death.

Fla. Stat. § 921.141(2)(b)(2).

2. In light of this Court’s recent decision in

McKinney v. Arizona, 140 S. Ct. 702 (2020),

Petitioner’s contrary argument fails on its own terms.

Petitioner frames the constitutional question as

whether the sufficiency and weighing of aggravators

can be characterized as the “functional equivalents” of

elements. See Pet. i, 7–13. But Petitioner does not

address McKinney, which rejected the theory that a

jury must weigh aggravators and mitigators, and thus

made clear that a determination that aggravators

outweigh mitigators is not an “element” of capital

murder for purposes of Apprendi and its progeny.

And, as explained below, the statutory sufficiency

requirement adds nothing to Petitioner’s argument.

McKinney therefore rejects an essential predicate of

Petitioner’s claim.

In McKinney, a capital defendant challenged his

death sentence because the sentencing judge had

failed to consider his posttraumatic stress disorder as

a mitigating factor, thereby violating Eddings v.

Oklahoma, 455 U.S. 104 (1982) (holding that a capital

18

sentencer may not refuse as a matter of law to

consider relevant mitigating evidence). On remand

from the Ninth Circuit, the Arizona Supreme Court

performed its own de novo weighing of the

aggravators and mitigators, including the defendant’s

PTSD, and upheld the sentence. McKinney, 140 S. Ct.

at 706. In the state supreme court’s independent

judgment, the balance of the aggravators and

mitigators warranted the death penalty. Id.

On certiorari review, the defendant argued that “a

jury must resentence him” because a court “could not

itself reweigh the aggravating and mitigating

circumstances.” Id. This Court rejected that claim.

“Under Ring and Hurst,” the Court explained, “a jury

must find the aggravating circumstance that makes

the defendant death eligible.” Id. at 707.

“[I]mportantly,” however, “in a capital sentencing

proceeding just as in an ordinary sentencing

proceeding, a jury (as opposed to a judge) is not

constitutionally required to weigh the aggravating

and mitigating circumstances or to make the ultimate

sentencing decision within the relevant sentencing

range.” Id.; see also id. at 708 (explaining that “Ring

and Hurst did not require jury weighing of

aggravating and mitigating circumstances”).

Because the Sixth Amendment permits the

“weigh[ing] [of] aggravating and mitigating” evidence

by judges, id. at 707, the determination that

aggravators outweigh mitigators cannot be considered

an “element” of the offense. And because that

determination is not an element, it is not subject to

the beyond-a-reasonable-doubt standard. See Alleyne,

570 U.S. at 107 (“The touchstone for determining

19

whether a fact must be found by a jury beyond a

reasonable doubt is whether the fact constitutes an

‘element’ or ‘ingredient’ of the charged offense.”). In

other words, McKinney rejects an essential premise of

Petitioner’s argument: that the weighing of

aggravators and mitigators is either an “element” or

the “functional equivalent” of an element. See Pet. i,

7–13.

The outcome is not different simply because

Florida has chosen to assign the weighing

determination to the jury, rather than the judge as it

constitutionally could have. If the Sixth Amendment

permits a judge to determine whether aggravators

outweigh mitigators, and further permits the judge to

make that determination by some lesser standard (or

none at all), nothing prevents the State from reallocating that task to the jury by the same standard

of proof. Any contrary theory would punish States for

being more generous in extending procedural

protections to capital defendants by forcing them to

extend all available procedural protections. But

because the weight of the aggravators is not an

element of a capital offense, that determination need

not be found by a jury and, correspondingly, need not

be found beyond a reasonable doubt. See McKinney,

140 S. Ct. at 707–08. 2

Even if it were unclear whether McKinney

disposes of claims like Petitioner’s, any such doubt

provides an additional basis for denying review.

Because McKinney post-dated the decision below, the

Florida Supreme Court did not analyze its

applicability. This Court therefore lacks the benefit of

2

20

Finally, the statutory requirement that the jury

weigh, among other considerations, “[w]hether

sufficient

aggravating

factors

exist,”

§ 921.141(2)(b)(2)(a), adds nothing to Petitioner’s

argument. As construed by the Florida Supreme

Court, “it has always been understood that . . .

‘sufficient aggravating circumstances’ means ‘one or

more.’” Poole, 297 So. 3d at 502 (citing cases). Put

differently, “[u]nder longstanding Florida law, there

is only one eligibility finding required: the existence of

one or more statutory aggravating circumstances.” Id.

And it is undisputed that, in this case, that

requirement was satisfied when the jury unanimously

a reasoned lower court analysis of a critical issue

germane to Petitioner’s claim: whether and to what

extent McKinney’s holding that a jury need not

determine that aggravators outweigh mitigators

impacts the related question whether such normative

determinations must be made beyond a reasonable

doubt. Thus, McKinney, at a minimum, shows that

further percolation is warranted before this Court

steps in to resolve the claim Petitioner raised for the

first time on appeal. See California v. Carney, 471

U.S. 386, 400 n.11 (1985) (Stevens, J., dissenting)

(“The process of percolation allows a period of

exploratory consideration and experimentation by

lower courts before the Supreme Court ends the

process with a nationally binding rule.”); McCray v.

New York, 461 U.S. 961, 963 (1983) (Stevens, J.,

respecting denial of certiorari) (explaining that

percolation “allow[s] . . . the issue [to] receive[] further

study” in the lower courts “before it is addressed by

this Court”).

21

found multiple aggravating circumstances beyond a

reasonable doubt. See Pet. App. 8–9.

3. For reasons this Court has already explicated, it

would make little sense to apply the beyond-areasonable-doubt

standard

to

normative

determinations of the kind at issue here. In Carr, this

Court “doubt[ed]” that it is “even possible to apply a

standard of proof to the mitigating-factor

determination.” 136 S. Ct. at 642. The Court reasoned

that “[i]t is possible to do so for the aggravating-factor

determination,” on the one hand, because the

existence of an aggravator “is a purely factual

determination.” Id. Whether mitigation exists, on the

other hand, “is largely a judgment call”—or “perhaps

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

mitigating circumstances outweigh aggravating

circumstances is mostly a question of mercy.” Id.

Thus, “[i]t would mean nothing . . . to tell the jury that

the defendants must deserve mercy beyond a

reasonable doubt; or must more-likely-than-not

deserve it.” Id.

As this Court has explained, the beyond-areasonable-doubt standard ensures that the

prosecution must “persuad[e] the factfinder at the

conclusion of the trial of [the defendant’s] guilt beyond

a reasonable doubt.” Winship, 397 U.S. at 364. This

safeguard preserves the “moral force of the criminal

law” because it does not “leave[] people in doubt

whether innocent men are being condemned.” Id. at

364. But sufficiency and weighing do not go to

whether the defendant is guilty of a capital offense—

that question is answered when the jury finds the

existence of an aggravated first-degree murder. See

22

McKinney, 140 S. Ct. at 707; Kansas v. Marsh, 548

U.S. 163, 175–76 (2006). Sufficiency and weighing

instead go to the appropriateness of the penalty. That

is, they are normative judgments, not facts.

A fact is “something that has actual existence” or,

perhaps more appropriately in this context, is “a piece

of information presented as having objective reality.”

“Fact,”

Merriam-Webster’s

Dictionary,

https://www.merriam-webster.com/dictionary/fact.

Facts have their basis in observable truths about the

world. A fact either is or isn’t; although a person’s

perception of facts may be open to debate, facts are

objectively discernable. By contrast, normative

judgments are opinions. As such, they turn on the

subjective views of individual decisionmakers. In

short, they are questions involving discretion.

As a consequence, a jury is not better situated to

make normative determinations than a judge. Indeed,

sufficiency and weighing no more need be conducted

by a jury than the traditional in-range sentencing

discretion performed by judges throughout the nation

countless times each day. As McKinney recognized,

Apprendi expressly reserved for judges the power to

exercise that type of discretion. McKinney, 140 S. Ct.

at 707 (“[T]his Court carefully avoided any suggestion

that ‘it is impermissible for judges to exercise

discretion—taking into consideration various factors

relating both to offense and offender—in imposing a

judgment within the range prescribed by statute.’”

(quoting Apprendi, 530 U.S. at 481)); see also Proffitt

v. Florida, 428 U.S. 242, 252 (1976) (plurality op.)

(“[I]t would appear that judicial sentencing should

lead, if anything, to even greater consistency in the

23

imposition . . . of capital punishment, since a trial

judge is more experienced in sentencing than a jury,

and therefore is better able to impose sentences

similar to those imposed in analogous cases.”).

4. Petitioner’s substantial expansion of the

Apprendi doctrine would have significant and

troubling practical implications, including for noncapital sentencing. The federal statute governing

criminal sentences, for example, provides that “[t]he

court shall impose a sentence sufficient, but not

greater than necessary, to comply with” certain

statutorily enumerated sentencing factors. 18 U.S.C.

§ 3553(a). Given that a federal sentence must, by

statute, be supported by a normative judgment that

the chosen sentence is “not greater than necessary” to

effectuate “the purposes set forth in” the statutory

sentencing factors, see id., must that “finding” be

made by a jury beyond a reasonable doubt? And if not,

why is that normative judgment any different than

the moral determination at issue here—i.e., that

aggravating

factors

outweigh

mitigating

circumstances? See United States v. Gabrion, 719 F.3d

511, 533 (6th Cir. 2013) (en banc).

Notably, Petitioner himself appears unwilling to

accept the practical consequences of his own theory.

Petitioner asks this Court to rule that two

determinations—sufficiency and weighing—must be

made beyond a reasonable doubt. But the statute also

provides that the trial court may not impose death

unless the jury further determines, based on those two

factors, that death is the appropriate sentence. See

Fla. Stat. § 921.141(2)(b)(2)(c), (3)(a)(2) (requiring the

jury to determine, based on sufficiency and weighing,

24

“whether the defendant should be sentenced to life

imprisonment without the possibility of parole or to

death,” and providing that the court may sentence the

defendant to death if, and only if, “the jury has

recommended a sentence of . . . [d]eath”). Petitioner

nevertheless does not go so far as to say that that the

jury’s ultimate recommendation that “the defendant

should

be

sentenced

to

...

death,”

§ 921.141(2)(b)(2)(c), must be made beyond a

reasonable doubt. And for good reason: “Any

argument that the Constitution requires that a jury

impose the sentence of death,” this Court has

explained, “has been soundly rejected by prior

decisions of this Court.” Clemons v. Mississippi, 494

U.S. 738, 745 (1990); see also McKinney, 140 S. Ct. at

707; Proffitt, 428 U.S. at 252 (plurality opinion).

Nor would Petitioner’s proposed extension of the

Apprendi doctrine necessarily redound to the benefit

of criminal defendants. If state laws like the one

Petitioner asks this Court to strike down—those that

seek to protect criminal defendants by reducing the

risk of arbitrariness and guiding a sentencing

authority’s discretion to impose particularly harsh

punishments—give rise to otherwise non-existent due

process problems, lawmakers may well respond by

repealing, rolling back, or declining to create such

protections in the first place. That is one reason why

this Court has “warned against wooden, unyielding

insistence on expanding the Apprendi doctrine far

beyond its necessary boundaries.” Oregon v. Ice, 555

U.S. 160, 172 (2009) (quotation marks omitted); see

Ring, 536 U.S. at 613 (Kennedy, J., concurring).

25

5. The foregoing explains why this Court has

denied certiorari in a case presenting the identical

jury-instruction issue, see Rogers v. Florida, No. 198473, and in a case presenting the underlying

question whether the Sixth and Eighth Amendments

require that a jury find that the aggravators

outweighed the mitigators, see Poole v. Florida,

No. 20-250.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

ASHLEY MOODY

Attorney General of Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

amit.agarwal@

myfloridalegal.com

February 10, 2021

AMIT AGARWAL

Solicitor General

*Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General