Opposition Brief — James Terry Colley, Jr., Petitioner v. Florida

DOCKET NO. 20-8048

IN THE SUPREME COURT OF THE UNITED STATES

JAMES TERRY COLLEY, JR..,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE FLORIDA SUPREME COURT

ASHLEY MOODY

ATTORNEY GENERAL

CAROLYN M. SNURKOWSKI*

Deputy Assistant Attorney General

Florida Bar No. 158541

*Counsel of Record

PATRICK A. BOBEK

Assistant Attorney General

Florida Bar No. 112839

Office of the Attorney General

444 Seabreeze Blvd. Suite 500

Daytona Beach, Florida 32118

Telephone: (886) 238-4990

Facsimile: (886) 226-0457

capapp@myfloridalegal.com

caroyln.snurkowski@myfloridalegal.com

patrick.bobek@myfloridalegal.com

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

Whether certiorari review should be denied where the

Florida Supreme Court’s affirmance of the heinous,

atrocious and cruel aggravator is a matter of primarily

state law, does not present conflict with any court, does

not involve an important federal question, and the issue

was properly decided by the Florida Supreme Court?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .....0.......ecccsesecseeseeeeteeseeneenseeeeeessanenseneeeseans i

TABLE OF CONTENTS 10... ce ecescccsesseeessseesseesesseesseessssesossesesensessescesseeseseesesesesseeeseas il

TABLE OF AUTHORITIES 200. eeeseee en seeeeeeseceeeeseeeeesaaeeeseeeeeeeeaeeeeeneeesseenees il

CITATION TO OPINION BELOW....ooooooo occ eee ee eeceeeeeneeecnsneeeesseeeeeesssneessaeeeeseaes 1

STATEMENT OF JURISDICTION. ..0.0... cee ceesseeesceseseesscneeeseesensesesseeeessceesseeseneeeseess 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........0..0..0 eee 1

STATEMENT OF THE CASE ooo eee ceeeeseecesseeeesseeeeeseeecesssseeesesaeesseeseeeesseseeses 2

REASONS FOR DENYING THE WRIT ....... cc icesccsesscseeseeseeseeeeeesaneserseseeeseessesseseeeesens 6

Certiorari review should be denied because the Florida Supreme

Court’s decision on the applicability of an aggravating factor in a

particular case is a matter of primarily state law and does not conflict

with any decision of this Court or involve an important, unsettled

question of federal law, and that application does not render Florida’s

death penalty sentencing scheme unconstitutional. .............ccccccccceceeeeeeeseeeeees 6

CONCLUSION .ouu.ccceccccecccccccccecsssesseessessnsssanscaaeeacceececeeseessnsnaaeeeseeeseseeenecesessneenscnanseeeees 23

CERTIFICATE OF SERVICE ............cccccccsssscecccccceeccceesesssneeeceecccesseceusecsssensnsscaeeceeseuees 1

TABLE OF AUTHORITIES

Page(s)

CASES

Adams v. State,

412 So. 2d 850 (Fla.1982) .......ccccsscsscscsscssssessescsscsesecsessesesscsesssecsessesesseecsacseesecsecsesneas 13

Aguirre-Jarquin v. State,

9 So.3d 593 (Fla. 2009) oo... eeeeececesscceccessccccecsccccecscccersesscceesscceecseceeesseseesuseseeeenseasees 20

Allred v. State,

BB So.8d 1267 (Fla. 2010) ......cccccccccsscsssesscsscssscccsseesseateatsceseteaeeseesessesseceesseseeeseesees 19

Alvord v. State,

322 So. 2d 533 (Fla. 1975) ......cccccssccssecsssesesssesssessecessssseeessesseessessseseecseesaeeseeeseeenens 13

Arave v. Creech,

BOT U.S. 468 (1998)... cccsscccsesscsseesecssessecssesesceeseecaucenceseeesensasesscsessesseseensensaaeses 9, 20

Barnhill v. State,

834 So. 2d 836 (Fla. 2002) ........cccccsscssessesseessessessessessccseesessesseeseesessnecneseeceeeeseaes 12, 15

Bartlett v. Stephenson,

B35 U.S. 1801 (2002)... ccceccsscscssecsecssssssessessessessecsseassassnsenseaesateseeseesesenesneseeeseesses 17

Brown v. State,

721 So. 2d 274 (Fla. 1998) .....ccccccccscssesscssessesscseessseeseessesessesteeucessecseeecsessesees 12, 14, 15

Buzia v. State,

926 So. 2d 1203 (Fla. 2006) .........cccccesscsccsecsessesecssssessesecssssesecsesaesecsecsessessesueneeaeensenees 20

Capehart v. State,

583 So. 2d 1009 (Fla. 1991) ooo... ceccseceeceseccccesecccecceccecencereeseceseestaseesssnsceesseneeeeees 15

Chapman v. California,

386 U.S. 18 (1967) o.oo ccceccccccccccssecsessesscessesceseeecseececseccussecsenscessessaseesseneeesssecencesenes 22

Cheshire v. State,

568 So. 2d 908 (1990) oo... eee cccccsscesescsssecsescesecevseccecsecessesseseessessssevsnesesseesenes 10, 11

Coleman v. Thompson,

BOL U.S. 722 (L991) oo eee eeecceecessensecccsssceesesscececssesecesreeevesseceusteceeecsrececesteceeeess 21

Colley v. State,

310 So.3d 2 (Fla. 2020) 0... ceccecccescccssecesssessesesseesseeessseasenssecsecesseeseeceseneeesstes passim

Dayle v. State,

A460 So. 2d 353 (Fla. 1984) oo...cecec cece cece ccssscsessesessscccssscsscessseesessesessesecseesecsueseesease 13

Eddings v. Oklahoma,

ABB U.S. 104 (1982)... cceccccccsesceccsscesessessesecsecssssessesteseccsecsessesseseaesscsecaecaeenesnenseeres 17

Espinosa v. Florida,

BO5 U.S. 1079 (1992)... ee cecesceccsccssccsecseesscessesscsessessessessessessessessesaeesseaeceseasentenseeses 17

Farina v. State,

B01 So. 2d 44 (Fla. 2001) ....cecccccccccccccsscsessececesesecesseeseeseasensesseacsacsaeeasseeseecseseeesesees 12

Herb v. Pitcairn,

B24A U.S. 117 (1945)... ccc ccsccsesccseesseesenseecseeseessesseseeseeseeseeseeseessessesaesaeeeeensesseenseets 21

Hildwin v. State,

B31 So. 2d 124 (Fla. 1988) .........ccccecsscssesccesecsecssecsecsecsececsecseesseseeseecseseeseeseeeeneeesees 15

Hitchcock v. State,

578 So. 2d 685 (Fla. 1990) .........ccccccccesscccceseeeecceesecccessecccecsenececntccececsreeerseceeneneeeeeees 12

Lawrence v. State,

308 So.3d 544 (Fla. 2020) oo.....cccccccccccccccccesccsesesssenesnseneessesessesscaacseccsecssseessessessensaeeses 22

Lewis v. Jeffers,

AQT U.S. 764 (1990) oo... cee ccccceccccescessecescsscsecsecsscsecsesnceccascecsecsucseseeeceseeeeeeass 7, 8, 9, 20

Lynch v. State,

841 So. 2d 362 (Fla. 2008) ........cccccccccecssessceccescsecssescescescasescsscsecseseestcansecsarseseeeeeeteas 15

Mansfield v. State,

758 So. 2d 636 (Fla. 2000) .........ccccceccecssessesccsecsessesscsecssseesecsessessesecateaseacsacecenens 14, 15

Mason v. State,

438 So. 2d 374 (Fla. 1983) oo... eeeccccccccceccesccesscesceeecsececseceseseeseaeeessauesseesnseessaeesens 13

Maynard v. Cartwright,

ABB U.S. 356 (1988)... cceccccccccescescsesecsscsscssesesccsecsessesscsecsescesesaussesseeseeesessacsceaeeees 9,16

McCleskey v. Kemp,

481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)... eecesececesceeceeccesccceseeeeeseees 9

Orme v. State,

677 So. 2d 258 (Fla. 1996) oo... eeccececsceseccccessecessceeseccesseccenccecsececeseeestecessesesseceseuee 14

Preston v. State,

607 So. 2d 404 (Fla. 1992) ......c.cccccccccccseseesesscescscsecsessessesecseeecasesesscssesececeseassenseaeess 12

Princeton University v. Schmid,

455 U.S. 100 (1982)... cccccsecssceesecoecssecssessessessessessessessessessessecescsesseseeeresseeseenee 21

Protiitt v. Florida,

A2Q8B U.S. 242 (1976)... ececccccccccessessscesseccecssscecssesssseesceesssescesscsesecseessssecsessessseseeseess 7,8

Pulley v. Harris,

465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) ool ecececeseeeseeseesececsseesesnseeeees 9

Rice v. Sioux City Cemetery,

B49 U.S. 70 (1955). ..eceeccecceccceseesseseececessesseccescssecassesscsasseesessccssessesecseseeeneasseneeeenens 18

Rockford Life Ins. Co. v. Illinois Dep't of Revenue,

482 U.S. 182 (1987) .....cccccccccccesseccessecceeccsncceeeeseccccecsscccseeecessenceeseenececetteceessreceerss 16,17

Sochor v. Florida,

B04 U.S. 527 (1992) oo. ccccsssccsscsscssssecseesscssecssesseseesesesssescesesasenseaesessassesseseesseseeeeaees 17

Stano v. State,

AGO So. 2d 890 (Fla. 1984) ......ccccccccccscscccsessscesseseessessesecseesseseesssesseneeseestesesneeaees 13, 14

State v. Dixon,

283 So. 2d 1 (Fla. 1973) ...cecciceccccessscsessccscessssssessestsesessscevesscevecseeeseseesesersassesees 10, 13

Swafford v. State,

533 So. 2d 270 (Fla. 1988) oo... ececeeecceccesssseceesscceeecescceseessescessscceesseecesecseeeeeseneeeenss 16

United States v. Johnston,

278 U.S. 220 (1925)... cececccessscecessececessccecevssecccessrsceverscecessaeeeeeseceeeessececevsacecsnenaeess 18

Walton v. Arizona,

AOT U.S. 639 (1990) oo... cecccccccscescscesceessceseseesscecessessessesesseseesesecseessececsessessesacseeseeecas 8,9

Williams v. State,

574 So. 2d 136 (Fla. 1991) cece eee ceeeeecsesscesccesseecsceceusssseessesessecssessessseeesseseseasees 14

Woodson v. North Carolina,

AQ8B U.S. 280 (1976) oo. eeeeeecceccecceceecceesseceeceeeceseceecesceseacsacesseseeavssevseeseesevsevsesaveeees 16

Zucht v. King,

QGO U.S. 174 (1922)... eccccccccceccecceccecceccescceccsccscvesesseceececceceeseeusueaeeresseeeseeeeeseaseaeenees 17

STATUTES

2B U.S.C. § V257(A) wocccececcecceccsscssceccsscssecsecsusssssccseessessssssssscsesscusnscsscasssevasseasaseasenseases 1

QB U.G.C. § L257 oe ceceescssscceccscsscvecceessssssccsessecsecsecscesacseccsesscesessacnsecseaseaceaseasesseasvaceaeeas 21

Florida State Stat. §921.141(5)(H) we cccccccccsccccssssccsecsesscsscsscessessssssssccessnssaserucensenses 7

RULES

U.S. Sup. Ct. R. 10... cssccccnsenseecsceeseceeecueceeseneserseuseeeecsuaeeesseaeecesessecensagageeeeees 16

CITATION TO OPINION BELOW

The opinion of the of the Florida Supreme Court affirming Petitioner's

convictions and sentences can be found at Colley v. State, 310 So.3d 2 (Fla. 2020).

STATEMENT OF JURISDICTION

The judgment of the Florida Supreme Court was entered on December 16,

2020. (Pet. App. A). Petitioner asserts that this Court’s jurisdiction is based upon 28

U.S.C. § 1257(a). Respondent agrees that this statutory provision sets out the scope

of this Court’s certiorari jurisdiction, but submits that this case is inappropriate for

the exercise of this Court’s discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioners statement regarding the applicable

constitutional and statutory provisions involved.

STATEMENT OF THE CASE

Petitioner was convicted of several crimes including the first-degree murders

of his estranged wife, Amanda Colley}, and her friend, Lindy Dobbins. Colley v.

State, 310 So.3d 2, 7 (Fla. 2020). At the time of the murders in August 2015 he was

living at his sister’s house while Amanda resided in the marital home because she

had obtained a domestic violence injunction against him. /d. Colley and his wife had

separated a few months prior and although he was in another relationship, he

wanted to reconcile with Amanda but suspected she had started dating another

man. /d.

In the early morning hours of August 27, 2015, Petitioner drove to Amanda’s

home, and when he found she wasn’t there, started to search the house. Jd He

found sex toys and men’s clothing that weren’t his, confirming his suspicions that

she had moved on, which drove him into a rage causing him to ransack the house,

including breaking televisions. /d. Amanda arrived home around 9 a.m. to discover

the damage and called her boyfriend, Lamar Douberly, and two of her friends,

Lindy Dobbins and Rachel Hendricks, to assist with the mess. Jd. Douberly called

the police department’s nonemergency line to get an officer to the residence but

Amanda ultimately declined to file any formal charges at that time. /d.

Meanwhile, Petitioner was at a courthouse for a plea hearing for violating the

injunction Amanda had against him. /d. His plea colloquy was recorded via the

courtroom’s video and audio system and showed that Colley was calm and

1 Petitioner’s wife will be referred to by her first name to avoid confusion.

2

cooperative and denied being under the influence of any intoxicants. /d. Colley had

been texting and calling Amanda throughout the morning, mostly going

unanswered, prior to the hearing and continued to do so after leaving the

courthouse. /d. He was finally able to reach Amanda at 9:41 a.m. after his plea

hearing, and the two talked for about fourteen minutes. /d.

Cell phone tower data and video surveillance allowed the State at trial to

establish his movements following that phone call. /d. at 9. Petitioner first drove to

his sister’s home instead of Amanda’s, where the evidence suggested he procured

guns and ammunition. /d. at 8. He next stopped at a nearby gas station to buy a

small amount of gas and other items. /d. Only then did he start the twenty-minute

drive to his wife’s house. /d. However, instead of driving directly to the home, he

went to an adjacent street and parked in the driveway of an unoccupied house. Jd.

He walked along a trail that led to Amanda’s backyard and approached the house

from the rear armed with two handguns, a 9mm and a .45 caliber. /d. Amanda,

Dobbins, Douberly, and Hendricks were all inside at the time. /d.

Petitioner started shooting from outside the home, shouting, “Where is he?

Where is he?” Jd. Douberly recognized the sounds as gunshots and, telling everyone

to run, fled from the home through the garage. Jd. The three women instead took

refuge in the master bedroom, where Amanda hid in the bathroom while Dobbins

and Hendricks barricaded themselves in a small side closet. Ja. At this time, 10:36

a.m. Dobbins and Amanda both made calls to 911, which recorded theirs and

Petitioner’s voices, as well as the subsequent gunshots. Jd. Colley first encountered

3

Amanda, where he continued to shout at her looking for Douberly. /d. He also heard

the people in the closet and tried to break down the door hoping to find Amanda’s

boyfriend but was initially unsuccessful. Jd. Both Amanda and Dobbins protested

that it was Dobbins in the closet, not Douberly. Jd.

Petitioner then went back to Amanda, shooting her, but not fatally. Jd. He

returned to the closet and when he still couldn’t open the door, he shot through it,

grazing Hendricks and causing her to lose her grip on the door. /d. The bullet also

struck Dobbins’s foot. /d. at 9. Colley barged in, and fortuitously for Hendricks,

directly past the first woman to approach Dobbins. Jd. As Rachel ran to escape the

home, she heard the gunshots Colley fired that executed Dobbins in the back of the

closet, as Dobbins attempted to hide behind a chest. Jd. After killing Dobbins,

Petitioner found Amanda still in the bathroom. /d. He shot her until his 9mm ran

out, and when it did he dropped that gun, pulled out his .45, and continued to shoot

until she stopped moving, for a total of nine gunshot wounds. /d. Petitioner left the

home, abandoned his cell phone, and fled the state before eventually being arrested

in Virginia hours later after a traffic stop. Jd.

At trial, the State’s medical examiner, Dr. Predrag Bulic, testified as to the

wounds suffered by the two victims. Dobbins had three gunshot wounds, one on her

right temple, one on her shoulder, and one on her foot. /d. at 9. The temple and

shoulder wounds were at a steep downward angle, consistent with the shooter being

above the victim, and were immediately lethal. Amanda received nine gunshot

wounds, only one of which would have been immediately lethal while

4

simultaneously paralyzing her from the neck down. Jd. at 8-9. Her arms and legs

showed several defensive wounds that could have only been inflicted while she was

still capable of movement, and the bullets had alternate trajectories that showed

some were inflicted while she was standing and some while she was on the ground.

Id. Dr. Bulic testified that she knew what was happening to her, stating, “She was

aware. She had a—a knowledge of what’s happening and—throughout the entire

shooting process.” /d. at 9.

Because of the brazen nature of his crimes, defense counsel at trial did not

advance an actual innocence defense but instead argued that Petitioner had been

caught up in an emotional roller coaster because of the fractious nature of the

relationship with his wife, and that the murders and other crimes were a result of a

“snap reaction” and not premeditation. Jd. The jury rejected this argument and on

July 18, 2018, found Colley guilty of the first-degree murders of Amanda and

Dobbins under both theories of premeditation and felony murder. They also found

him guilty as charged of the five other counts of the indictment: attempted firstdegree murder of Douberly; attempted felony murder of Hendricks; burglary of a

dwelling with an assault or battery; burglary of a dwelling; and aggravated stalking

after an injunction. /d.

Following a penalty phase, the jury unanimously recommended a sentence of

death by 12-0. Jd. at 11. The judge and jury found the existence of five aggravating

factors for Amanda’s murder and four for Dobbins’s. /d. at 11-12. The four they had

in common were: 1) Colley was previously convicted of another capital or violent

5

felony (for the contemporaneous murder and attempted murder convictions); 2)

Colley committed each murder while engaged in the commission of a burglary; 3)

each murder was especially heinous, atrocious, or cruel; and 4) Colley committed

each murder in a cold, calculated, and premeditated manner. /d. at 11. The fifth

aggravator unique to Amanda was that Colley committed murder while subject to a

domestic violence injunction and the victim of the murder was the person who

obtained the injunction. /d. Although the judge rejected defense arguments that

Colley was impaired at the time of the murders by a combination of Ambien,

alcohol, and lack of sleep, he did find the existence of twenty-three mitigating

circumstances relating to Colley’s otherwise crime-free life and good character, both

professionally and personally. /d. at 12. In finding that the aggravators far

outweighed the mitigators, the judge sentenced Colley to death for both murders.

td.

Colley appealed to the Florida Supreme Court advancing several arguments,

the only one of which is relevant here being that the aggravating factor that the

murders were especially heinous, atrocious, or cruel, was misapplied in his case. Jd.

at 14. That court found no merit to any of his arguments and affirmed his

convictions and sentences. Jd. at 19.

This petition follows.

REASONS FOR DENYING THE WRIT

Certiorari review should be denied because the Florida Supreme

Court’s decision on the applicability of an aggravating factor in a

particular case is a matter of primarily state law and does not conflict

with any decision of this Court or involve an important, unsettled

6

question of federal law, and that application does not render Florida’s

death penalty sentencing scheme unconstitutional.

Petitioner requests this Court review the Florida Supreme Court’s decision

finding the aggravating factor that the murders were especially heinous, atrocious,

or cruel (HAC) applied to the killings of Amanda and Dobbins. He argues that

applying the aggravator under the facts of his case means Florida is failing to

sufficiently narrow death-eligible defendants, and therefore the state’s capital

sentencing scheme is unconstitutional.

Petitioner states his question for review as whether the Florida Supreme

Court’s expansion of the applicability of the heinous, atrocious or cruel aggravating

circumstance renders the death penalty scheme unconstitutional as applied because

it does not sufficiently narrow the class of death-eligible first-degree murders.

(Petition at i, ii, 14, 18).

As Applied Challenge

Petitioner’s “as applied” argument cannot be the basis for federal review. In

Lewis v. Jeffers, 497 U.S. 764, 778-80 (1990), this Court stated clearly that the

question whether state courts properly have applied an aggravating circumstance is

separate from the question whether the circumstance, as narrowed, is facially valid.

Petitioner does not, and cannot, argue Florida Statute §921.141(5)(h)—the statute

on the “especially heinous, atrocious or cruel” aggravating circumstance—is facially

invalid. In fact, Petitioner does not cite or recognize Proffitt v. Florida, 428 U.S. 242

(1976), which upheld the aggravating circumstance that the murder was “especially

heinous, atrocious, or cruel” on the express ground that a narrowing construction

had been adopted by the Florida Supreme Court. Proffitt, 428 U.S. at 255.

Instead, Petitioner contends, as did the petitioner in Walton v. Arizona, 497

U.S. 639, 655-656, (1990), that the heinous, atrocious, or cruel (“HAC”) factor has

been applied in an arbitrary and capricious manner. (Petition at 14). This

“arbitrariness” seems to be based on Petitioner’s claim that the Florida Supreme

Court has redefined HAC by originally requiring “that the murderer intend to

specifically torture the victim” but more recently “only focuses on the mind of the

victim, specifically whether the victim suffered unnecessarily.” (Petition at 16).

In Jeffers, this Court rejected the “as applied” challenge, citing Walton v.

Arizona, 497 U.S. 639, 655-656 (1990):

This Court held in Walton:

The Arizona Supreme Court’s construction also is similar to the

construction of Florida’s “especially heinous, atrocious, or cruel”

aggravating circumstance that we approved in Proffitt v. Florida, 428

U.S., at 255-256, 96 S.Ct., at 2968 Goint opinion of Stewart, Powell, and

STEVENS, JJ.). Recognizing that the proper degree of definition of an

aggravating factor of this nature is not susceptible of mathematical

precision, we conclude that the definition given to the “especially cruel”

provision by the Arizona Supreme Court is constitutionally sufficient

because it gives meaningful guidance to the sentencer. Nor can we fault

the state court’s statement that a crime is committed in an especially

“depraved” manner when the perpetrator “relishes the murder,

evidencing debasement or perversion,” or “shows an indifference to the

suffering of the victim and evidences a sense of pleasure” in the killing.

See 159 Ariz., at 587, 769 P. 2d, at 1033.

Walton nevertheless contends that the heinous, cruel, or depraved factor

has been applied in an arbitrary manner and, as applied, does not

distinguish his case from cases in which the death sentence has not

been imposed. In effect Walton challenges the proportionality review of

the Arizona Supreme Court as erroneous and asks us to overturn it.

8

This we decline to do, for we have just concluded that the challenged

factor has been construed by the Arizona courts in a manner that

furnishes sufficient guidance to the sentencer. This being so,

proportionality review is not constitutionally required, and we “lawfully

may presume that [Walton’s] death sentence was not ‘wantonly and

freakishly’ imposed-and thus that the sentence is not disproportionate

within any recognized meaning of the Eighth Amendment.” McCleskey

v. Kemp, 481 U.S. 279, 306, 308, 107 S.Ct. 1756, 1774, 1775, 95 L.Ed.2d

262 (1987); Pulley v. Harris, 465 U.S. 37, 48, 104 S.Ct. 871, 875-876, 79

L.Ed.2d 29 (1984). Furthermore, the Arizona Supreme Court plainly

undertook its proportionality review in good faith and found that

Walton’s sentence was proportional to the sentences imposed in cases

similar to his. The Constitution does not require us to look behind that

conclusion.

Walton v. Arizona, 497 U.S. 639, 655-656 (1990) (overruled by Ring v. Arizona, 536

U.S. 584 (2002) to the extent Arizona allowed a sentencing judge, sitting without a

jury, to find an aggravating circumstance necessary for imposition of the death

penalty); Jeffers, 497 U.S. at 778-779. See also Arave v. Creech, 507 U.S. 468, 476-

477 (1993) (a federal court may consider state court formulations of a limiting

construction to ensure that they are consistent, but our decisions do not authorize

review of state court cases to determine whether a limiting construction has been

applied consistently.).

This Court further noted in Jeffers:

Our decision in Walton thus makes clear that if a State has adopted a

constitutionally narrow construction of a facially vague aggravating

circumstance, and if the State has applied that construction to the

facts of the particular case, then the “fundamental constitutional

requirement” of “channeling and limiting ... the sentencer’s discretion

in imposing the death penalty,” Cartwright, 486 U.S., at 362, 108

S.Ct., at 1858, has been satisfied.

Jeffers, 497 U.S. at 779. Petitioner fails to present any basis for which this Court

should grant certiorari review.

Argument that Florida Has Redefined HAC.

In an attempt to breathe life into a non-viable claim, Petitioner asserts that

the Florida Supreme Court has “redefined” HAC and applied that aggravating

circumstance inconsistently, resulting in an insufficient narrowing of death eligible

individuals. (Petition at 16, 18). Petitioner presents no important federal question

or cite to the case of any other court with which the decision in this case may

conflict. Further the Florida cases cited by Petitioner do not support his argument,

which is completely without merit. To the contrary, HAC has been, and continues to

be, applied consistently by the Florida Supreme Court.

Petitioner cites to State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973), and Cheshire v.

State, 568 So. 2d 908, 912 (1990), for the premise that: “Initially, the Supreme

Court of Florida required that the murderer intend to specifically torture the

victim.” Neither Dixon nor Cheshire support this argument.

The Florida Supreme Court in Dixon explained HAC as:

It is our interpretation that heinous means extremely wicked or

shockingly evil; that atrocious means outrageously wicked and vile:

and, that cruel means designed to inflict a high degree of pain with

utter indifference to, or even enjoyment of, the suffering of others.

What is intended to be included are those capital crimes where the

actual commission of the capital felony was accompanied by such

additional acts as to set the crime apart from the norm of capital

felonies-the conscienceless or pitiless crime which is unnecessarily

torturous to the victim.

Dixon, 283 So. 2d at 9 (Fla. 1973). Nowhere in the explanation does the court

require that the murderer intend to specifically torture the victim. The only

10

mention of the defendant’s mental state is “indifference, or even enjoyment of’ the

pain inflicted. Nowhere does the Dixon interpretation state that a requirement of

the HAC aggravating circumstance is the specific intent of the defendant to torture.

Rather, the focus is the effect on the victim: that the murder is wicked, evil or vile

and designed to inflict a high degree of pain on the victim. The circumstances must

be unnecessarily torturous to the victim. As outlined below, the focus has always

been the suffering of the victim, both mental and physical.

Neither did Cheshire hold that HAC can only be found if the murderer

intends to specifically torture the victim. In Cheshire, the two victims were shot

while nude in bed in the early morning hours. Residents of the trailer park heard a

gunshot, a scream that lasted “just a few seconds,” and another gunshot. Regarding

HAC, the court held:

The physical evidence simply does not support such a finding here. At

best, we can only conjecture as to the exact events of the murder. Since

the evidence at hand is entirely consistent with a quick murder

committed in the heat of passion, we believe the state has failed to

prove beyond a reasonable doubt that the factor of heinous, atrocious

or cruel existed.

Cheshire, 568 So. 2d 912.

Not only does Cheshire contradict Petitioner’s argument, but also the finding

supports the Respondent's position that the Florida Supreme Court scrutinizes each

application of HAC and, under the facts of Cheshire, HAC did not apply to a “quick

murder” in which the only evidence the victims were aware of impending death was

one scream for a few seconds.

11

The Florida Supreme Court has consistently held that HAC applies when

there are extraordinary circumstances which cause heightened awareness of

impending death, mental anguish, and extended suffering. Petitioner cites only to

Farina v. State, 801 So. 2d 44 (Fla. 2001), and Barnhill v. State, 834 So. 2d 836 (Fla.

2002) as affecting a “change” in Florida law. He fails to recognize established

Florida law consistent with Farina and Barnhill despite the fact those established

cases are cited in Farina and Barnhill In Farina, the court found:

The HAC aggravator focuses on the means and manner in which death

is inflicted and the immediate circumstances surrounding the death.

See Brown v. State, 721 So. 2d 274, 277 (Fla. 1998). “Fear and

emotional strain may be considered as contributing to the heinous

nature of the murder, even where the victim’s death was almost

instantaneous.” Preston v. State, 607 So. 2d 404, 410 (Fla. 1992).

Additionally, this aggravator pertains more to the victim’s perception

of the circumstances than to the perpetrator’s. See Hitchcock v. State,

578 So. 2d 685, 692 (Fla. 1990).

In the instant case, the trial court cited Van Ness’s “real and

excruciating” mental anguish and her acute awareness of her

impending death to support its HAC finding. There is testimony that

Van Ness was very upset throughout the crime and had to be calmed

by her co-workers. The record also shows that she had her hands tied

behind her back and was conscious as two of her co-workers were shot.

Before being shot in the head, Van Ness witnessed Jeffery shoot one of

her co-workers in the chest, shoot a second in the jaw, and attempt to

shoot the second in the chest as well, only being thwarted when the

gun misfired. Thus, the record supports the HAC aggravating

circumstance. (Emphasis supplied)

Farina, 801 So. 2d at 53. In Hitchcock v. State, 578 So. 2d 685, 692-693 (Fla. 1990)

the court held:

That Hitchcock might not have meant the killing to be unnecessarily

torturous does not mean that it actually was not unnecessarily

torturous and, therefore, not heinous, atrocious, or cruel. This

aggravator pertains more to the victim’s perception of the

12

circumstances than to the perpetrator’s. Stano v. State, 460 So. 2d 890

(Fla. 1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863

(1985). Hitchcock stated that he kept “chokin’ and chokin’ “ the victim,

and hitting her, both inside and outside the house, until she finally lost

consciousness. Fear and emotional strain can contribute to the

heinousness of a killing. Adams v. State, 412 So. 2d 850 (Fla.), cert.

denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982). As

Hitchcock concedes in his brief, “[sltrangulations are nearly per se

heinous.” See Doyle v. State, 460 So. 2d 353 (Fla. 1984); Adams; Alvord

v. State, 322 So. 2d 533 (Fla. 1975), cert. denied, 428 U.S. 923, 96 S.Ct.

3234, 49 L.Ed.2d 1226 (1976). The court did not err in finding this

murder to have been heinous, atrocious, or cruel. (Emphasis supplied)

In Stano the defendant pleaded guilty to first-degree murder for the

strangulation/drowning death of one woman in 1975 and the shooting/drowning

death of another woman in 1977. Stano struck both women, thereby stunning them,

to keep them from leaving the car, drove to isolated areas and then, after ordering

the women to leave the car, strangled one and shot the other in the head. The court

held:

The trial court’s finding heinous, atrocious, or cruel in aggravation is

also amply supported. Both women had been struck by Stano and then

driven considerable distances. Each must have known what was going

to happen to her. Stano argues that, after being struck, the women

could have been too dazed to have contemplated their fates. In fact,

however, each woman was conscious and left the car under her own

power when told to do so. On the totality of the circumstances each of

these cases meets the standard of State v. Dixon, 283 So. 2d 1 (Fla.

1973), cert. denied, 416 U.S. 9438, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974),

and supports a finding of heinous, atrocious, or cruel.

Stano also argues that the court’s use of the same facts to support both

of these aggravating circumstances is an improper doubling of these

two factors. As we have discussed before, heinous, atrocious, or cruel

pertains more to the nature of the killing and the surrounding

circumstances while cold, calculated, and premeditated pertains more

to state of mind, intent, and motivation. Mason v. State, 438 So. 2d 374

(Fla. 1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725

(1984).

13

Stano, 460 So. 2d at 893 (Fla. 1984). This short history illustrates that the Florida

Supreme Court has consistently held that it is the totality of the circumstances

which must be considered for HAC, and the victim’s suffering and knowledge of

death is one factor.

The other case cited by Petitioner — Barnhill — as “only focusing on the mind

of the victim” (Petition at 20) does not support his argument at all. In Barnhill, the

court made extensive fact findings:

Barnhill argues that HAC was improperly found under the

circumstances of this case. The HAC aggravating factor applies in

physically and mentally torturous murders which can be exemplified

by the desire to inflict a high degree of pain or utter indifference to or

enjoyment of the suffering of another. See Williams v. State, 574 So. 2d

136 (Fla. 1991). HAC focuses on the means and manner in which the

death is inflicted and the immediate circumstances surrounding the

death, rather than the intent and motivation of a defendant, where a

victim experiences the torturous anxiety and fear of impending death.

See Brown v. State, 721 So. 2d 274, 277 (Fla. 1998). Thus, if a victim is

killed in a torturous manner, a defendant need not have the intent or

desire to inflict torture, because the very torturous manner of the

victim’s death is evidence of a defendant’s indifference. See id. Because

strangulation of a conscious victim involves foreknowledge and the

extreme anxiety of impending death, death by strangulation

constitutes prima facie evidence of HAC. See Mansfield v. State, 758

So. 2d 636, 645 (Fla. 2000); Orme v. State, 677 So. 2d 258, 263 (Fla.

1996).

Although the evidence is unclear exactly how long Gallipeau was

conscious before he was killed, we only consider whether there is

competent, substantial evidence to support the trial judge’s finding. In

the sentencing order, the trial judge found HAC based on the following

facts: the victim was 84 years old; Barnhill stalked the victim in his

own home; Barnhill struck him in the head and drove him to the

ground and began to manually strangle him; the victim was forced to

view Barnhill and knew who he was; the victim had always shown

Barnhill kindness and generosity; Barnhill failed to manually strangle

the victim so he got a towel to use as a ligature; and the towel was

14

ineffective, so Barnhill took the victim’s belt from his pants and

wrapped it around the victim’s neck four times. The trial judge further

found that the victim never regained consciousness from the initial

attempt at manual strangulation.

The trial judge relied on Barnhill’s description of the strangulation and

said it took six or seven minutes to strangle the victim. The trial judge

also relied on Barnhill’s statement that the victim struggled and

fought and tried to yell for help. The trial judge relied on these facts

because they were corroborated by other evidence in the record. A trial

judge is not prevented from relying on specific statements made by the

defendant if they have indicia of reliability, even if the defendant has

given several conflicting statements. See Hildwin v. State, 531 So. 2d

124, 128 n. 2 (Fla. 1988). Consistent with Barnhill’s rendition, the

medical examiner testified that the victim lost consciousness within

one to two minutes after being manually strangled, and would have

died within one to seven minutes. This evidence demonstrates that the

victim was aware of his impending death. See Capehart v. State, 583

So. 2d 1009 (Fla. 1991) (HAC applies where victim’s death was painful,

and where the smothering was not instantaneous because the victim

remained conscious for two minutes).

The trial judge reasonably found that the victim suffered a physically

and mentally cruel, torturous death. See Mansfield, 758 So. 2d at 645.

Barnhill focuses on his own intent to strangle the victim quickly. As

stated above, HAC focuses on the means and manner in which the

death is inflicted, not the intent and motivation of a defendant. See

Brown v. State, 721 So. 2d 274, 277 (Fla. 1998). The record supports

the trial court’s finding of HAC.

Barnhill, 834 So. 2d at 849-850. Again, this case cites to established precedent and

does not create a “new” construction of HAC.

To the extent Petitioner argues that Florida applies HAC inconsistently in

shooting deaths, he cites no federal case or decision of any court to support this

argument. To the contrary, the cases Petitioner cites exemplify that the court is

very discriminating in requiring additional circumstances when the death is caused

by shooting. See Lynch v. State, 841 So. 2d 362 (Fla. 2003) (child held hostage for

15

extended period, mother shot in front of her, child forced to open door and let

murderer in because mother shot, child shot). See also Swafford v. State, 533 So. 2d

270, 277 (Fla. 1988) (victim abducted, driven to remote location, raped, shot nine

times).

The Opinion Below Does Not Conflict with the Decision of Any Other Court or

Present an Important Federal Question.

Petitioner's “as applied” argument is not appropriate for certiorari review,

does not present an important federal question, and does not conflict with any other

court’s decision. The “HAC is redefined” argument is based on an inaccurate

analysis, and an accurate analysis demonstrates there is no conflict with any court’s

decision and presents no important federal question. Petitioner does not provide

any “compelling” reason for this Court to review his case. U.S. Sup. Ct. R. 10.

This case involves neither conflict nor unsettled federal law. This Court has

noted that cases which have not divided the federal or state courts or presented

important, unsettled questions of federal law do not usually merit certiorari review.

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

This case does not merit consideration by this Court. Petitioner cites

generally to Woodson v. North Carolina, 428 U.S. 280, 305 (1976), and Maynard v.

Cartwright, 486 U.S. 356, 861-62 (1988). (Petition at 14-15). However, the

generalities for which those cases are cited are not relevant to whether Florida

courts apply HAC arbitrarily. Woodson addressed the North Carolina death penalty

statute which required a mandatory sentence of death for all persons convicted

16

first-degree murder. Maynard held that Oklahoma’s statute on HAC was

unconstitutionally vague. Petitioner also cites generally to Espinosa v. Florida, 505

U.S. 1079 (1992) and Sochor v. Florida, 504 U.S. 527 (1992); however, he makes no

argument as to how those cases apply to, or conflict with, the present case. (Petition

at 16). Espinosa and Sochor involved Florida’s HAC jury instruction, not whether

the HAC aggravating circumstance was being applied indiscriminately to the extent

Florida’s death penalty is unconstitutional because it does not sufficiently narrow

the class of death-eligible first-degree murders.

The remainder of Petitioner's argument simply compares state cases and

makes no argument addressing an important federal question. Likewise, Petitioner

identifies no case with which the Florida Supreme Court decision conflicts.

Where no compelling federal question is presented, certiorari review is

inappropriate. See Eddings v. Oklahoma, 455 U.S. 104, 117 (1982); Zucht v. King,

260 U.S. 174 (1922). Further, there is no important federal question presented, and

this Court has noted that cases which have not divided the federal or state courts or

presented important, unsettled questions of federal law do not usually merit

certiorari review. Rockford Life Insurance Co. v. Hlinois Department of Revenue,

482 U.S. 182, 184 n. 3 (1987). See also Bartlett v. Stephenson, 535 U.S. 1301, 1304

(2002) Gissues with few, if any, ramifications beyond the presenting case do not

satisfy any of the criteria for exercise of certiorari jurisdiction).

The Case Was Properly Decided Below

The Florida Supreme Court properly decided the claim raised on direct

17

appeal: whether the HAC aggravating circumstance applies in this case. This case

was decided correctly through an independent analysis of the totality of the

circumstances. Petitioner argues on page 17 that HAC was inappropriately applied

in his case.? The Florida Supreme Court held:

Colley claims that HAC does not apply to either victim’s murder

because there is no evidence that the victims experienced terror and

fear prior to their deaths. He maintains that “all of the killing was

accomplished in under a minute,” so neither murder victim had much

time to agonize over her impending death. Colley also disputes the

trial court’s finding that Colley shot Amanda once, then killed Lindy,

then returned to kill Amanda. He claims that the evidence shows that

he shot and killed Lindy first and only then proceeded to shoot and kill

Amanda. Colley’s takeaway is that Lindy therefore did not hear her

friend being shot and that Amanda had only seconds to contemplate

Lindy’s shooting before being shot herself. Colley says that if this

Court upholds HAC here, the aggravator will be so broad as to apply in

every case.

Colley’s arguments are unpersuasive. For starters, this Court’s role is

not to reweigh the evidence, and the trial court’s findings as to the

sequence of the shootings are supported by testimony from Rachel

Hendricks and the medical examiner. And their testimony strongly

supports an inference that the murder victims experienced terror in

the moments preceding their deaths. Both women fled to the master

bedroom area only after being shot at by Colley from outside the house.

They knew that Colley was on a murderous rampage. After Colley

found Amanda, he shot her once, left her to kill Lindy, and then

returned to inflict the gunshots that caused Amanda’s death. The

2 This argument shows that Petitioner’s real complaint is the application of HAC in

his case. Certiorari is inappropriate because the issue presented in this petition is of

no significance to anyone other than Petitioner. This claim cannot be decided

without engaging in the sort of fact-specific discussion of the case that this Court

has repeatedly refused to undertake. This Court’s precedent is well-settled that a

writ of certiorari is not issued to review evidence and find facts. United States v.

Johnston, 278 U.S. 220, 227 (1925); Rice v. Sioux City Cemetery, 349 U.S. 70, 79

(1955). Because the fact-specific issue contained in the petition is of extremely

limited significance, it is unworthy of this Court’s attention. Rice v. Sioux City

Cemetery, supra.

18

medical examiner testified that Amanda likely sustained painful

wounds before the shot that killed her. Similarly, Lindy cowered in

fear behind a chest, heard her friend being shot, and then was

executed upon Colley’s return to the closet. The totality of these

circumstances demonstrates that both murder victims experienced

exceptional anguish before their deaths. See Allred v. State, 55 So.3d

1267, 1280 (Fla. 2010) (upholding HAC where the defendant entered

victim’s home by shooting the glass doors, causing the victim to hide in

the bathroom, where she “undoubtedly heard the screams of her

helpless friends and [the defendant]’s repeated gunshots” before being

shot six times). Colley’s argument that facts like these are common to

all first-degree murders is untenable. We deny relief on this claim.

Colley, 310 So.3d at 15.

This very fact-specific analysis establishes that Amanda and Dobbins

underwent excruciating panic and anguish before they were brutally murdered.

Petitioner seems to believe that the mere fact that a gun was used rather than a

knife or rope or other deadly weapon, the murder is not heinous, atrocious, or cruel.

He ignores several facts that support this aggravator: that Petitioner alerted the

victims to his presence via gunshots while he was still outside the house, causing

them to flee and seek somewhere to hide; both victims had time to call 911; Dobbins

could not see, but could hear Amanda being shot, and likely assumed her friend was

dead as Petitioner started breaking into the closet; Dobbins was shot in the foot

during Petitioner’s rampage, and had to watch him walk up to her before her

execution; that Amanda would have heard her friend being murdered in the closet

before seeing Petitioner walk out and confront her again; and that Amanda suffered

eight non-fatal gunshot wounds, some exhibiting she was in a defensive posture,

before eventually succumbing to a ninth and final shot. Most importantly, the

19

sufficiency of the evidence supporting an aggravating factor is primarily a matter of

state law. See, Arave v. Creech, 507 U.S. 463 (1993)(noting that sufficiency of

evidence supporting an aggravating circumstance is primarily a matter of “state

law” and will violate the Constitution if “no reasonable sentencer” could find the

circumstance to exist.)(citing Lewis v. Jeffers, 497 U.S. 764, 783 (1990)).

Claiming the state court is inconsistently applying HAC, Petitioner cites to

Buzia v. State, 926 So. 2d 1203 (Fla. 2006), and Aguirre-Jarquin v. State, 9 So.3d

593 (Fla. 2009), and attempts to distinguish those two cases. Ironically, Buzia

argued, as Petitioner does here, that the murder happened quickly, and therefore

the victim was not conscious during the attack or aware of his fate. Buzia, 926 So.

2d at 1213. The Florida Supreme Court, as it always does, made an independent

determination of the totality of the circumstances in arriving at the conclusion that

Buzia’s victim was painfully aware of the torturous events as he was slammed in

the head with an ax. In Aguirre-Jarquin, the 69-year old stroke victim was confined

to a wheelchair and heard her daughter being murdered in the next room. The

victim was stabbed once through the heart; however, because of the totality of the

circumstances: the victim’s helplessness, terror, and emotional suffering, HAC was

appropriate. Petitioner's comparison of the cases to attempt to establish

inconsistency is unavailing. The detailed analysis conducted by the state supreme

court shows that HAC is being applied in the most egregious cases and the court is

conducting an independent analysis in each case. The HAC aggravating

circumstance was properly applied in this case.

20

Any Error Would Be Harmless On These Facts

Finally, even if this issue had merit, this Court should deny review because

even if this Court found error with regard to the HAC factor it would not affect the

judgment or sentence. See Coleman v. Thompson, 501 U.S. 722, 730 (1991)(“When

this Court reviews a state court decision on direct review pursuant to 28 U.S.C. ‘

1257, it is reviewing the judgment: if resolution of a federal question cannot affect

the judgment, there is nothing for the Court to do.”); Princeton University v.

Schmid, 455 U.S. 100, 102 (1982) (“However, if the State were the sole appellant

and its jurisdictional statement simply asked for review and declined to take a

position on the merits, we would have dismissed the appeal for want of a case or

controversy.”); Herb v. Pitcairn, 324 U.S. 117, 126 (1945)(“We are not permitted to

render an advisory opinion, and if the same judgment would be rendered by the

state court after we corrected its views of federal laws, our review could amount to

nothing more than an advisory opinion.”).

The trial court found five aggravating factors for Amanda’s murder and four

for Dobbins’s, assigning great weight to every factor except that the murders were

committed in a cold, calculated, and premeditated manner, assigning that factor

only moderate weight. Colley 310 So.3d at 11-12 (n.3 and n.4). Although the trial

court found the existence of twenty-three mitigating circumstances, only three were

given more than slight weight, all three of which only received moderate weight: his

history of drug and chronic alcohol abuse; that Colley had previously been

21

diagnosed with depression; lack of prior felony convictions. /d. at 12 (n. 5).

Even if this Court believes that the Florida Supreme Court improperly

expanded the HAC aggravator to Petitioner’s case, the HAC finding would have no

impact on the outcome below. First, Florida recently receded from its requirement

that all death penalty cases receive a proportionality review comparing each case to

other death penalty cases. Lawrence v. State, 308 So.3d 544 (Fla. 2020). Striking

one of the five aggravators for Amanda and four for Dobbins would not have

affected the Florida Supreme Court’s decision because Petitioner remains deatheligible due to the other several aggravators. Additionally, even had a

proportionality analysis been used, this case is one of the most highly aggravated up

against very uncompelling mitigation. The mitigation evidence established that

Petitioner was a good father, uncle, coworker, neighbor, employee, and little league

coach, but was devoid of any weighty mitigation such as severe abuse, mental

illness, or brain damage. Thus, on the face of the record, if the HAC factor were

stricken, the error would be harmless beyond a reasonable doubt. Chapman v.

California, 386 U.S. 18 (1967).

Petitioner has offered this Court no reason to accept certiorari review, and

accordingly this Court should deny review.

22

CONCLUSION

Based on the foregoing, Respondents respectfully request that this Court

deny the petition for writ of certiorari.

Respectfully submitted,

ASHLEY MOODY

ATTORNEY GENERAL

Tallahassee, wai

CAROLYN M. SNURKOWSKT”

Assistant Attorney General

Florida Bar No. 158541

*Counsel of Record

PATRICK A. BOBEK

Assistant Attorney General

Florida Bar No. 112839

Office of the Attorney General

444 Seabreeze Blvd. Suite 500

Daytona Beach, Florida 32118

Telephone: (386) 238-4990

Facsimile: (386) 226-0457

capapp@myfloridalegal.com

carolyn.snurkowski@myfloridalegal.com

patrick. bobek@myfloridalegal.com

COUNSEL FOR RESPONDENTS

23