Opposition Brief — Wayne C. Doty, Petitioner v. Florida

Supreme Court briefSep 27, 2021

Ask Donna

What actually matters in this document.

Text

CASE NO. 21-5672

IN THE SUPREME COURT OF THE UNITED STATES

WAYNE C. DOTY,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

Janine D. Robinson

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

Janine.Robinson@myfloridalegal.com

Telephone: (850) 414-3300

COUNSEL FOR RESPONDENT

CAPITAL CASE

QUESTION PRESENTED FOR REVIEW

Whether Petitioner’s death sentence violates the Due Process

Clause of the Fourteenth Amendment, because finding the

sufficiency of aggravating factors, as weighed against mitigating

circumstances, are not fundamental equivalents of elements of a

higher offense and do not require these determinations be made

beyond a reasonable doubt.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW uuu ccc cceeeeeeeeeeeseeenees i

TABLE OF CONTENTS. uuu... eceeceeceeecenssseeseesssseeceseeseeesesenessssneeeenes ii

TABLE OF CITATIONS AND AUTHORITIES ..... eee eeeeeeeeeeeeneeees ili

OPINION BELOW ..000.0. eee eececceececsececceesesseseecsesesssessesessseseseueesessessosnsnees 1

JURISDICTION 00... eee eeeeeessenssseesceceeeeecensenesersessnessecsesvsseseesessesseseses 1

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

REASONS FOR DENYING THE PETITION ..... ee eeeeteeree enone 8

I, THE DECISION BELOW IS CORRECT AND DOES NOT

VIOLATE PETITIONER’S DUE PROCESS RIGHTS.........00000. 11

Il. THE FLORIDA SUPREME COURT’S DECISION DOES NOT

CONFLICT WITH THIS COURT’S PRECEDENTS................... 21

CONCLUSION 0... ecccceeeceeeseessensssasesssessssesesessessesassensesouseoneees 25

TABLE OF CITATIONS AND AUTHORITIES

Cases

Allen v. State, 2021 WL 2232499 (Fla. June 3, 2021)............cccccccceceeeeees 15

Alleyne v. United States, 570 U.S. 99 (20138) ..... ce eeeeeseseeeeeeees 14, 21, 22

Apprendi v. New Jersey, 530 U.S. 466 (2000) .........cccscccsseecceesseeeee passim

Bright v. Florida, 141 8S. Ct 1697 (Mar. 22, 2021)... eeeeeeeeseeeeeees 21

Clemons v. Mississippi, 494 U.S. 738 (1990) .............:.scseeseceeesseeesesererees 20

Craft v. State, 312 So. 3d 45 (Fla. 2020) .............cccccccccccceecccceessseesceeeeeeees 16

Davidson v. State, 2021 WL 2834613 (Fla. July 8, 2021)... eee 15

Deviney v. State, 2021 WL 1800101 (Fla. May 6, 2021)............ eee 15

Doty v. State, 170 So. 3d 731 (Fla. 2015) .0..........ccececessesseneeeeseeeeees 2, 3, 4, 7

Doty v. State, 313 So. 3d 573 (Fla. 2020) ..............ccccceceeccccceeesseeseees passim

Doty v. State, 315 So. 3d 633 (Fla. 2021) ...........ceeeccccccccccccceeessesseeceeeeeseees 1

Eddings v. Oklahoma, 455 U.S. 104 (1982)..............cccccsececeeeceesseseceeeeeens 13

Faretta v. California, 422 U.S. 806 (1975)..........ccccccsseeesssscccenseecccneesecseeees 2

Hurst v. Florida, 577 U.S. 92 (2016)............cceccceesescsssecccceeesceeeseeens passim

Hurst v. State, 202 So. 8d 40 (Fla. 2016) .0....... cee cece ccc cescceeeeeceseceeeecees 4

In re Winship, 397 U.S. 3858 (1970) .........ceccccccessensesseeesesceseeceeenseesseses 17, 22

Kansas v. Carr, 577 U.S. 108 (2016)............cccccesscccesssceceesseeesenseseaeees 16, 17

Kansas v. Marsh, 548 U.S. 163 (2006) ..0........ cc ceecccccccsseseescceceesececeeneeenees 18

Lawrence v. State, 308 So. 3d 544 (Fla. 2020) ............cccssssseceesssseeeenseeeees 7

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

Newberry v. Florida, 141 S. Ct. 625 (Oct. 19, 2020)... eeeeeeeeeeseeeees 7

ill

Newberry v. State, 288 So. 8d 1040 (Fla. 2019) .........cccessccssssseesseeeeeees 7

Oregon v. Ice, 555 U.S. 160 (2009) ...... ce cccccccssssssesceeccceccsnssssseeeeeeceeeseneees 21

Poole v. Florida, No. 20-250 (Jan. 11, 2021)... ecccccccecseeeeeecees 12, 21

Proffitt v. Florida, 428 U.S. 242 (1976).........ccccsssssssssceccceeecesecesseesssereenees 20

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

Rogers v. Florida, 141 S. Ct. 284 (Oct. 5, 2020)... cceecccseseeeceeeeees 7, 21

Rogers v. State, 285 So. 3d 872 (Fla. 2019)... ccccccceeceeeeeeeeeeeees 7,11, 12

Santiago-Gonzalez v. Florida, 2021 WL 2519344 (June 21, 2021)........ 21

Smiley v. State, 295 So. 3d 156 (Fla. 2020)... ccessssesssseceeceeeeeeeeueeeeeee 7

Snelgrove v. State, 107 So. 3d 242 (Fla. 2012)... eeceseccsccecceeeeeeeeseeeeee 7

State v. Poole, 297 So. 3d 487 (Fla. 2020) ..............cccsecssecceneneeeees 10, 11, 16

United States v. Gabrion, 719 F.3d 511 (6th Cir. 2018).....0.... eee 19

Williams v. State, 209 So. 3d 543 (Fla. 2017) ............scceceseececceecseseeeeeesseees 7

Other Authorities

18 U.S.C. § 8558 oo. ccccccccccecccsseseceetcerecececeseeeescesersusessnsnseseeseceeesseeesenens 19

28 ULS.C. § 1257 ooo eccccessessesnnenencencsncsnssessssnscceccnaecsaeseeseesssssceeasessesooaae 1

QB U.S.C. § 2101 ceccccecscssesecseccesscsesscsrecssessesesecseseeseceesecsucaessesersussesasenesnensenes 2

Fla. Stat. § 775.082 ........cccccccccssssseccccceesssceceeesseececescnenensseeseeesecerseesaseaaeesenen 8

Fla. Stat. § 921.124 v.cccccccccccccescecsvsesscceseceessssseseseveasssesersusesssessesaeesessesecaes 4

Fla. Stat. § 921.141 oo. eeccccccccesessescceceeeeeeeseeeeaaeeesceseeseeeeesenees passim

Florida Rule of Criminal Procedure 3.851 «0.0.00... ceeeeeeceseeeeeeseeeeeneeeeaeeenes 4

Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/fact ..........cccccccccssceccnsessecascceececceeeasenseeeeeanaeeeenes 18

Sup. Ct. R. 18.8.0... ccccccssesessessstenesnnsseccenssessesseecnacaeacasceesesesssssueceseeeaseses 2

CASE NO. 21-5672

IN THE SUPREME COURT OF THE UNITED STATES

WAYNE C. DOTY,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

OPINION BELOW

The Florida Supreme Court’s decision challenged by Petitioner is

reported at Doty v. State, 313 So. 3d 573 (Fla. 2020).

JURISDICTION

The Florida Supreme Court affirmed Petitioner’s death sentence on

February 13, 2020, following resentencing. On April 15, 2021, Florida’s

High Court denied Petitioner’s motion for rehearing. See Doty v. State,

315 So. 3d 633 (Fla. 2021). Chapter 28 U.S.C. § 1257 authorizes this

Court’s jurisdiction to review the Florida Supreme Court’s final decision

and limits it to federal constitutional issues that were properly

presented. In accordance with this Court’s Orders of March 19, 2020, and

July 19, 2021, the Petition is timely. See Sup. Ct. R. 13.3; 28 U.S.C. §

2101(d).

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Petitioner Wayne C. Doty, an inmate at Florida State Prison,

confessed and pled guilty to killing fellow inmate, Xavier Rodriguez in

2012.1 Doty v. State, 170 So. 3d 731, 733-34 (Fla. 2015). Following a

hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), the trial

court permitted Petitioner to proceed pro se with standby counsel. In

addition, Petitioner conducted his own investigation prior to entering his

guilty plea. Doty, 170 So. 3d at 734.

The facts of the case are summarized as follows: While serving a

life sentence for the shooting death of his former employer, Doty planned

and executed the brutal murder of a fellow inmate, Xavier Rodriguez.

1/ Petitioner was indicted along with co-defendant William Wells. Their cases were

severed. Doty v. State, 170 So. 3d 731, 734 (Fla. 2015).

Doty and co-defendant Wells worked as runners together and were given

privileges, including access to an interview room where Rodriguez was

murdered. The evidence showed, Doty began planning the murder after

Rodriguez called him names and stole tobacco, obtained and concealed a

homemade knife. Doty and Wells “carefully watched” the officers to

determine the best time to kill Rodriguez and then lured him to an

interview room available to the runners. Doty, 170 So. 3d at 734. Doty

and Wells “tricked” Rodriguez into letting them bind his hands, after

which, Doty place the victim in a chokehold from behind, until

Rodriguez’s body went “slack.” Jd. Doty dropped Rodriguez to the floor,

pulled his body around a desk, then began to stab him with the

homemade knife. Doty commented, he was hoping to pull out Rodriguez’s

heart “to make sure he was really dead,” but the knife was too dull. Id.

Doty and Wells then tied a ligature around Rodriguez’s neck, smoked a

cigarette and took showers. After they were sure that Rodriguez was

dead, Doty and Wells notified a corrections officer and confessed to the

crime. Id.

In 2013, the jury recommended Petitioner be sentenced to death by

a vote of ten to two. Doty, 170 So. 3d at 734; see also Appendix A. The

trial court sentenced Petitioner to death. Jd. at 737. The Florida

Supreme Court affirmed Petitioner’s conviction and sentence on direct

appeal. Jd. In state postconviction under Florida Rule of Criminal

Procedure 3.851, however, the trial court vacated Petitioner’s death

sentence because it became final after Ring v. Arizona, 536 U.S. 584

(2002), and the jury did not unanimously recommend death, required by

Hurst v. State, 202 So. 3d 40 (Fla. 2016). Doty v. State, 313 So. 3d 573,

574 (Fla. 2020).

During the second re-sentencing proceeding in 2018, the Petitioner

again represented himself. The State sought to prove three aggravating

factors, that the Petitioner: 1) was previously convicted of a capital felony

for the murder of his prior employer; 2) was serving a sentence of

imprisonment for a prior felony when he murdered Rodriquez; and 3)

committed the murder in a cold, calculating and premeditated manner.

Doty, 313 So. 3d at 575; see also § 921.124(6)(a), (b) and @), Fla. Stat.

(2017). The State and Petitioner stipulated to the first two aggravating

factors. As to the third, the State presented testimony of two prison

employees that Petitioner confessed to them, he planned the murder for

weeks. Doty, 313 So. 3d at 575-76.

The jury also heard from several witnesses in support of Petitioner’s

seven non-statutory mitigating circumstances. The witnesses, including

his mother, stepmothers and psychologist, spoke of Petitioner’s prison

experiences and cooperation with the prison investigation, mental health

issues of “obsessive compulsive personality disorder,” adverse childhood

experiences of being abused, abandoned, neglected and that he lacked a

male role model. Doty, 313 So. 3d at 575-76.

Prior to the jury’s deliberation, the trial court reviewed the

proposed instructions with Petitioner at the final charging conference.

The instructions included,

that a death sentence could be imposed only if the jury

unanimously found that the State had proved at least one

aggravating factor beyond a reasonable doubt, that the

aggravating factors found to exist were sufficient to justify the

death penalty, that the aggravating factors outweighed any

mitigating circumstances found to exist, and that, based on all

these considerations, the defendant should be sentenced to death.

Doty, 313 So. 3d at 576. Petitioner did not object to the proposed

instructions or ask the trial court to apply a reasonable doubt standard

of proof as to sufficiency and weighing. Instead, Petitioner informed the

trial court that he was satisfied. Jd.

The re-sentencing jury unanimously found that the State proved all

three aggravating factors beyond a reasonable doubt. As to mitigation,

however, the jury determined that the Petitioner only established four of

the seven mitigating circumstances by the greater weight of the evidence.

The jury unanimously agreed that the aggravators outweighed the

mitigators and unanimously recommended a death sentence. Doty, 313

So. 3d at 576; Appendix A.

In its twenty-page sentencing order, the trial court found the State

proved all three presented aggravators, but weighed them against all

seven mitigating circumstances, instead of the four found by the jury.

Petitioner was sentenced to death a second time. Doty, 313 So. 3d at 576;

Appendix B.

On direct appeal of his second death sentence, Petitioner argued

that the trial court fundamentally erred by failing to instruct the jury

that it must find that the aggravating factors were sufficient to warrant

a death sentence and that they outweighed the mitigating factors, beyond

a reasonable doubt.2, Doty, 313 So. 3d at 576-77. The Florida Supreme

Court rejected the argument without a fundamental error analysis,

concluding that the trial court made no error regarding the jury

instructions. It succinctly held that sufficiency and weighing “are not

subject to the beyond a reasonable doubt standard of proof,” citing

Newberry v. State, 288 So. 3d 1040 (Fla. 2019), cert. denied, Newberry v.

Florida, 141 S. Ct. 625 (Oct. 19, 2020), and Rogers v. State, 285 So. 3d

872 (Fla. 2019) (receded on other grounds by Lawrence v. State, 308 So.

3d 544 (Fla. 2020)), cert. denied, Rogers v. Florida, 1418S. Ct. 284 (Oct. 5,

2020). Doty, 313 So. 3d at 577. Petitioner now seeks certiorari review of

the Florida Supreme Court’s decision.

REASONS FOR DENYING THE PETITION

Florida’s Death Penalty Statute

In Hurst v. Florida, 577 U.S. 92 (2016), this Court held that

2/, Under Florida law, the fundamental error doctrine is a basis for reversal due to

unpreserved, but egregious trial court errors which “reaches down into the validity

of the trial itself’ and “that a sentence of death ‘could not have been obtained

without the assistance of the alleged error.” Doty, 170 So. 3d at 743, quoting

Snelgrove v. State, 107 So. 3d 242, 257 (Fla. 2012).

Florida’s capital sentencing scheme violated the Sixth Amendment in

light of Ring. 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.” Jd. (quoting Fla. Stat. § 775.082(1)

(2010)). At that additional sentencing proceeding, a jury renders an

advisory verdict, recommending for or against the death penalty. In

making that recommendation, the jury 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. §

921.141(2)(a)-(c), Fla. Stat. (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

ageravated 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.” Jd. at 103.

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.” § 921.141(2)(a), Fla. Stat. (2017). If the jury

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

“ineligible” for the death penalty. § 921.141(2)(b)1., Fla. Stat.

If on the other hand, the jury unanimously finds at least one

aggravator, the defendant is “eligible for a sentence of death.” §

921.141(2)(b)2., Fla. Stat. In that event, the jury must make a sentencing

recommendation based on a weighing of three considerations: first,

“lw]lhether sufficient aggravating factors exist”;3 second, “[wlhether

3/_ As construed by the Florida Supreme Court, “it has always been understood that

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., Fla. Stat.

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

Legislature granted capital defendants procedural protections beyond

Hurst's requirements. 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

... 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”).

proof.

I. THE DECISION BELOW IS CORRECT AND DOES NOT

VIOLATE PETITIONER’S DUE PROCESS RIGHTS.

The Florida Supreme Court rejected Petitioner's claim and

narrowly held that sufficiency and weighing determinations are not

subject to the beyond a reasonable doubt standard of proof. Doty, 313 So.

3d at 576-77. In so doing, the court correctly applied this Court’s

precedents to Florida’s capital sentencing scheme.

In Rogers, which served as the basis for the Doty decision, 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, 285 So. 3d at 885. 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.

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

reading:

If the jury ... [uJnanimously 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.

§ 921.141(2)(b)2, Fla. Stat.

In light of this Court’s decision in McKinney v. Arizona, 1408S. Ct.

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

constitutional question as whether the sufficiency and weighing of

aggravators can be characterized as the “functional equivalents” of

elements. See Petition at 1, 6-16. Petitioner does not cite, let alone

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 v. New Jersey, 530 U.S. 466 (2000), and

its progeny.

In Mckinney, a capital defendant challenged his death sentence

because the sentencing judge had failed to consider his posttraumatic

stress disorder (PTSD) as a mitigating factor, thereby violating Eddings

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

not refuse as a matter of law to consider 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.” McKinney, 140 S. Ct. at 706. 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.” Jd. 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, McKinney, 140 S. Ct. 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 v. United States, 570 U.S. 99, 107 (2018) (‘The

touchstone for determining 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 Petition at 1, 6-16.

Post-Doty, the Florida Supreme Court has not wavered from its

analysis and has consistently rejected like claims. See, e.g., Davidson v.

State, 2021 WL 2834613, *5 (Fla. July 8, 2021) (holding, no fundamental

error occurred where findings that “aggravating factors were su/ficient to

justify the death penalty and whether those factors outweighed the

mitigating circumstances” were not subject to the reasonable doubt

standard) (emphases in original) (citation omitted); Allen v. State, 2021

WL 2232499 (Fla. June 3, 2021) (holding, no fundamental error for failing

to instruct the penalty phase jury that it must determine whether the

aggravating factors were sufficient to justify the death penalty and

whether those factors outweighed the mitigating circumstances beyond a

reasonable doubt); Deviney v. State, 2021 WL 1800101 (Fla. May 6, 2021)

(rejecting fundamental error argument that determinations of the

sufficiency and weighing of aggravators against mitigators must be made

beyond a reasonable doubt); and Craft v. State, 312 So. 3d 45 (Fla. 2020)

(certiorari petition pending, SC21-5280).

Finally, the statutory requirement that the jury weigh, among

other considerations, “[w]hether sufficient aggravating factors exist,” §

921.141(2)(b)2.a., Fla. Stat., 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.

at 502-03. And, it is undisputed that in this case, that requirement was

satisfied when the judge found multiple aggravating circumstances

beyond a reasonable doubt. See Doty, 313 So. 3d at 576; Appendix B at

3-9.

For reasons this Court has already explicated, it would make little

sense to apply the beyond a reasonable doubt standard to normative

determinations of the kind at issue here. In Kansas v. Carr, 577 U.S.

108, 119 (2016), this Court “doubt[ed]” that it is “even possible to apply a

standard of proof to the mitigating-factor determination.” 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.” Jd. 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, “[iJt would mean nothing... to tell the jury that the defendants

must deserve mercy beyond a reasonable doubt; or must more-likelythan-not deserve it.” Id.

The beyond a reasonable doubt standard ensures that the

prosecution must “persuad|[e] the factfinder at the conclusion of the trial

of [the defendant’s] guilt beyond a reasonable doubt.” In re Winship, 397

U.S. 358, 364 (1970). This safeguard preserves the “moral force of the

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

innocent men are being condemned.” Jd. But sufficiency and weighing

do not go to whether the defendant is guilty of a capital offense—that

question is answered when the jury finds the existence of an aggravated

first-degree murder. See McKinney, 140 S. Ct. at 707; Kansas v. Marsh,

548 U.S. 1638, 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.” Merriam-Webster Dictionary,

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

basis in observable truths about the world. A fact either is or is not;

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.

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.

2018) (en banc).

Notably, Petitioner appears unwilling to accept the practical

consequences of his own theory. He 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 § 921.141(2)(b)2.c.,

(3)(a)2., Fla. Stat. (requiring the jury to determine, based on sufficiency

and weighing, “whether the defendant should be sentenced to life

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

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

jury has recommended a sentence of . . . [dJeath”).

Petitioner nevertheless does not go so far as to say that the jury’s

ultimate recommendation that “the defendant should be sentenced to . .

. death,” § 921.141(2)(b)2.c., Fla. Stat., 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 v. Florida, 428 U.S. 242, 252 (1976) (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) (citation omitted) (internal quotation marks

omitted); see also Ring, 536 U.S. at 613 (Kennedy, J., concurring).

All of this explains why this Court has denied certiorari in three

Florida cases presenting the identical issue. See Santiago-Gonzalez v.

Florida, 2021 WL 2519344 (June 21, 2021) (No. 20-7495); Rogers v.

Florida, 141 S. Ct. 284 (Oct. 5, 2020) (No. 19-8473); and Bright v. Florida,

141 S. Ct 1697 (Mar. 22, 2021) (No. 20-6824). And, this Court denied

certiorari review 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.

II. THE FLORIDA SUPREME COURT'S DECISION DOES

NOT CONFLICT WITH THIS COURT’S PRECEDENTS.

Petitioner asserts that the Florida Supreme Court’s decision

“conflicts with this Court’s opinions in Apprendi, Ring, Alleyne and

Hurst.” Petition at 6. Petitioner is simply, incorrect. The cases to which

he cites do not conclude that the beyond a reasonable doubt standard

applies to non-factual determinations intended to guide the jury’s

sentencing recommendation. On 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. at 363-64; see also id.

(referencing “the trier of fact”). The Court there held that the Due

Process Clause “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, 570 U.S. at 103

(“Any fact that, by law, increases the penalty for a crime is an ‘element’

that must be submitted to the jury and found beyond a reasonable

doubt.”).

Consistent with Winship, this Court in Apprendi expressly and

repeatedly explained that the beyond a reasonable doubt standard of

proof applies to “facts.” For example, the Court:

e 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, 530 U.S. at 483-84;

° referenced the jury’s “assessment of facts,” td. at 490;

° 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).

Thus, Apprendi did not hold that the beyond a reasonable doubt

standard should be extended to non-factual normative judgments of the

kind at issue here. Moreover, this Court’s statements concerning that

standard of proof undermine, rather than support, Petitioner’s claim.

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 “[{clapital 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.” Ring, 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.” Hurst, 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. What is more, the reasoning of those cases expressly ties

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

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

claim.

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

ASHLEY MOODY

ATTORNEY GENERAL

)_—

. / jh < S; 0 /

I, Whe t hi Wy Vb