Opposition Brief — Donald James Smith, Petitioner v. Florida

No. 21-6307

In The

Supreme Court of the Anited States

DONALD JAMES SMITH,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

Charmaine M. Millsaps

Senior Assistant Attorney General

Office of the Attorney General

The Capitol, PL-01

Tallahassee, FL 32399-1050

(850) 414-3300

capapp@myfloridalegal.com

COUNSEL FOR RESPONDENT

CAPITAL CASE

QUESTION PRESENTED

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

Supreme Court holding that the prosecutor's comment in closing

argument of the guilt phase was not fundamental error.

TABLE OF CONTENTS

PAGE(S)

QUESTION PRESENTED. ...0000........cccececeeeseeeceeneeeeneeeecenneeeeesensneeeteccsaeseseneseeeeeceeeeeeeeeeses i

TABLE OF CONTENTS ..000......cecccccescceceeneeeceeeececeeecneneeseceneeeeeeesescneeserseneesseetesneesseresenees i

TABLE OF AUTHORITIES... cceecccssseesseneeeseesessnenesecesssoneeesesaeeeecaeessesseeeeeeees ill

OPINION BELOW ....0.0...c.ccccccceseccceeeeeeeseeeeesseeeseseeneaeeeseeuaaeasenenaaseesseeaeessaeeeeneesseeeeeneeeees 1

JURISDICTION 0.0... ecceecccceeeeenceecesreeceeneeevsneeeeseeseseeeeessnsaseseeeseegeeseeseaeeeseaeeseeeneeseneeteess 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......0.0.0 eee 2

STATEMENT OF THE CASE AND PROCEDURAL HISTORY. ..............ccececeeeees 3

Facts of the murder ............eccccccescsceeseeeeceenceeesneeesneeeecesneeeeseessaaeeeseseneeseneeeneeeenenesneenees 3

Trial proce Ging. ............ccccccsseseseececececuscsuausnsseeseseccecsunssseccenesserecsueaesgsssscsasanrecsessases 3

Direct appeal in the Florida Supreme Court ....0..........ccccccccsssceceeecessesssneceessnneeceeeas 4

Current petition for writ of certiorari in this Court ..................cccccescceeessneeeeesesseeees 5

REASONS FOR DENYING THE WRIT ....... oc eceeeessnceeeeessseeeeeeseneeesaeesseeseseeseneeeens 6

TISSUE Toone cece cccccccssceececeeeesseessenseesecessaneaaeesseeeseesesaaeeensaeseeesaensesaeeseeeenaeeneseenesneeeess 6

WHETHER THIS COURT SHOULD GRANT REVIEW OF A

DECISION OF THE FLORIDA SUPREME COURT HOLDING THAT

THE PROSECUTOR'S COMMENT IN CLOSING ARGUMENT OF

THE GUILT PHASE WAS NOT FUNDAMENTAL ERROR.

The Florida Supreme Court’s decision ...............ccccccesseessesssensesneneneceeseenssenes 7

Florida’s concept of fundamental error is a threshold issue .....................+ 8

No conflict with this Court’s jurisprudence ...............:::::csseseeseeceeeeeeesesseeees 9

No conflict with other appellate courts ......................c::cescececeeceeseeeeesesrenees 13

The prosecutor’s comment and the Golden Rule ..................cccscccsceseesseees 15

CONCLUSION .......cccccccccccseseccceceeseneesecncesesscesseseeecaceecaaneceseeauaeeseeeeseaseesaneenenseseeeesaaeenaes 17

TABLE OF AUTHORITIES

CASES PAGE(S)

Braxton v. United States,

BOO U.S. 844 (1991) ooo cececccccseassnesesaeeeaneeeeeseesaeeeaneeseeseaesceeseaeasseeaeceeaeseeteeeeees 14

Darden v. Wainwright,

ATT U.S. 168 (1986) ....-ccccccecsecsecsessessessecsessessessuecsucsseessessecsessessessesstssesseseesnees 5,7-8,10-12

Donnelly v. DeChristoforo,

A16 U.S. G37 (1974) oo... cec cece ccccccccccceeceeceeseesseneseeceessnssaeaeeeeeeeeeeeeeeeeeaeeeeeseseeeesusanseeeeeesnes 11

Earl v. State,

814 So.38d 1253 (Fla. 2021) 000... cccssnsscceeesessnnneeeeeeesseesaescaeeeceecaessasssusnnaeceesessneeeesens 8

Greer v. United States,

141 S.Ct. 2090 (2021) ooo... ccccccccecceeceesssnsnceceecsssensuneeeeeeeeeeeeeeseeceeeseeeseecensnnetecesesees 10

Ivy v. Security Barge Lines, Inc.,

585 F.2d 732 (Sth Cir. 1978) ..............ccccessscscceccsessseceeceeeesssaessceseaecaaesacessneeneeeeesesseneeeeees 16

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp.,

510 U.S. 27 (1998) oo... cceceseeesssescsensecenseeecscsensaeeeecesnssensneasaaeeauaeaaesagasaaesesceessesneeeeeseen 9

Jordan v. State,

176 S0.3d 920 (Fla. 2015) 20.0.0... cccccccccccccessceessseseseeeecececcecaeeeseeenaaaceeseanessseessentseeeaes 15

Knight v. State,

286 So.3d 147 (Fla. 2019) .............cccccsecceececcccecceseccenscssasssessececaceseceesenasesecsseaeasanaeaeasesaeees 9

Lowe v. State,

259 So.3d 23 (Fla. 2018), cert. denied, Lowe v. Florida, 139 S.Ct. 2717 (2019)......... 15

McDonald v. State,

743 So.2d 501 (Fla. 1999) ............ccccccccccsssessseseseeececcensececaaeeeueseeceeaeeeeseedauaesesecseneeneeeensesess 9

McFadden v. United States,

576 U.S. 186 (2015) 20... ceeccsecccnsecerccseeeccecenaseseccceeeeasecensesceceesceseeesceceaeatensessnsagensere 9

Neder v. United States,

BQT U.S. 1 (1999) .sseessecssccosccecsscssessesecssecsacscsecsucssvecseccanecsecsaesaecsessucsarsassecsucssetesaneeseesseees 9

United States v. Olano,

BOT U.S. 725 (1998) oo... cceccccsscccseeccssesecneuseececeessneesececceneuesceneesensueseeneuseeseeansseeeeeeerseees 14

Paez v. Sec’y, Fla. Dep’t of Corr.,

947 F.3d 649 (11th Cir. 2020), cert. denied, Paez v. Inch, 141 S.Ct. 309 (2020).......... 5

Parker v. Matthews,

B67 U.S. 87 (2012) oo... ceceeceeeccccccceecceccceeecnaseeseseeessensneeecesccsssnessucaceceseeccecececeasesenearsseseusons 11

People v. Cloutier,

G87 N.E.2d 930 (Ll. 1997) .....cccccsecsssecsesecsessessessecssesscsssssessessessessessesueseesessessessessecsesaeass 14

Puckett v. United States,

BBG U.S. 129 (2009) .....cccsccceccecceccecsecsessesecsecssecsuccaessuessessucsaessessucssesuesasssesacssesseessvesensaees 10

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

ABQ U.S. 182 (1987) ..-seccsecseccseseccucsscsessessessesssssecssessecssecsucsseceecsecssesaessesstesessessessecsseesses 14

Smith v. State,

820 S0.3d 20 (Fla. 2021) ou... cceccsccccccccccececccccsececsassacseeseceeecarsaceececcececceureneuaus passim

United States v. Hall,

979 F.3d 1107 (6th Cir. 2020) 2.0... ccccccececesssscececeseessasenenacaeaccececccesceesesereeceeeess 16

United States v. Hasting,

AG1 U.S. 499 (1988) oo... ccscsccessecessesecscsecescsecseseessesecsucsussessessesussessesucsesaestsseateresssnesseases 13

United States v. Magnan,

756 Fed. Appx. 807 (10th Cir. 2018) 200.00... cccccesssssssnsenssesesseseeeeceeeeeeceeeeeceseseeeeeees 14

United States v. Matias,

TOT F.3d 1 (1st Civ. 2013)....c.cccccssccesseseccessessessessessessecsessecscsuesscsessecsessessesecsucsessecsseeseen 16

United States v. Olano,

BOT U.S. 725 (1998) ...ceccseccscccseceessessessessessucssesssecsucssseseuessscssuessessuestessusssesssesseesseenseen 8,14

United States v. Sust,

378 Fed. Appx. 277 (4th Cir. 2010) 0.00... cccccccccceceeessssseessesseeeceecececeeceeesecceecececeeeees 16

Urbin v. State,

714 So.2d 411 (Fla. 1998) 0.0.0... ccecsecesssseccccessenceseccensseeeccenaaneeesaaeceseeaeecceenesssesecseuens 15

Weaver v. Massachusetts,

137 S.Ct. 1899 (2017) oo... ccc ccecccssecccssceecnenseenecsenseeecnsensnnsaeeeeeeeeseeenaeaetensceceseerenaeesees 10

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V oii... icc ccc cecccceeccecccacssscecccnsececssscccccvescencsscensccecucesecsecseesenserseceeeerecs 2

USS. Const. amend. XIV, § 1 ooo. ceeec ccc ccececseceeccccecceececeecececececcecsceccessesscensunceacaseueeaeeaease 2

STATUTES

2B U.S.C. § 1257 (a)... ccccesccccceccccsccnnseseccccecececececeseceeeeescesauseesesdeeeeneasecuenueceresseusaaneueaaasens 1

BB U.S.C. § 201A) .cececcecseccseccessessecsesessececsessessesecsecsassaesseseesaessscsuesessussessesatsaeeresesacseesavens 1

§ 924.051(8), Fla. Stat. (2020)... eee eeceeeesseeeceseeesseeeceseaeeessneeecaneeeessneesecseeeesesseaeerses 8

§ 924.051(7), Fla. Stat. (2020) 00.0.2... ..cccccceeccseceeeesseceeeseseeeeesesseaceesensaaaeeseeseenceeeceeeeeseneees 9

RULES

Fed. R. Crim. P. 520d)... cccccccccssssssecececceceeceeeeeseeecesseeeeseeeeeesesaeeeeeseeeeeeeeseseeeceauacnnases 8

Fed. R. Evid. 201(€) ...........::::cecccecccnsseeccccssseecececccccssceseeeeceesseseceenssssceeeesecceengsseeeeseaseseesess 5

Sup. Ct. R. 102.0... eceeeceeesceeeeeeeeseeeeeees ee dcacecececaeecesaeeseceueeseaueceesaneeseeeeeneeneeeeeaneees 10,13,15

Sup. Ct. R. 13.3 .ccccccceccsseecsseccsseccseccsucssuccscssucesaseesusecsusseseeecauesssucesavecsuscensesssecsarecueeeeeseeses 1

IN THE

SUPREME COURT OF THE UNITED STATES

No. 21-6307

DONALD JAMES SMITH, Petitioner,

Uv

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The Florida Supreme Court’s opinion is reported at Smith v. State, 320 So.3d 20

(Fla. 2021) (SC18-822).

JURISDICTION

On April 22, 2021, the Florida Supreme Court affirmed the conviction and death

sentence in the direct appeal. On May 7, 2021, Smith filed a motion for rehearing.

The State did not respond to the rehearing. On June 14, 2021, the Florida Supreme

Court denied the rehearing. On November 8, 2021, Smith filed a petition for a writ of

certiorari in this Court: The petition was timely. See Sup. Ct. R. 13.3; 28 U.S.C. §

2101(d).! Jurisdiction exists pursuant to 28 U.S.C. § 1257(a).

1 This Court extended the deadline to timely file a petition for writ of certiorari from 90 days

to 150 days due to COVID-19. See Order of March 19, 2020. This Court has returned to the normal

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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

No person shall be . .. deprived of life, liberty, or property, without due process

of law. ...

U.S. Const. amend. V.

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

which provides:

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

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

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

privileges or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1.

time frame of 90 days for any opinion or order issued after July 19, 2021, but the order denying

rehearing in this case was issued shortly before that date. See Order of July 19, 2021.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Facts of the murder

On June 21, 2013, Smith met eight-year-old Cherish Perrywinkle, her sisters, and

her mother, Rayne, at a Dollar General store in Jacksonville. Smith overheard Rayne

explain to an employee that she could not afford to purchase a dress for Cherish, and

offered to drive the Perrywinkles to Walmart and buy clothes for the family. Smith

explained to Rayne that his wife had a gift card and would meet the group there. At

Walmart, they shopped together for hours. It got late and the Perrywinkles had not

eaten, so Smith said he would buy them all cheeseburgers at a McDonald’s inside the

store. Instead, at 10:44 p.m., he vanished with Cherish. Surveillance cameras caught

Smith leading her to his van, as well as the two of them driving away. Smith v. State,

320 So.3d 20, 24 (Fla. 2021). Cherish was never seen alive again. Id. at 25.

The next morning, the police located Cherish’s body in a creek behind a church,

under a pile of debris. Smith, 320 So.3d at 25. Cherish had been brutally raped, then

strangled to death. An officer identified Smith, who was soaking wet, behind the

wheel of the same van that had left Walmart. It contained the things Rayne had

bought at Dollar General. Smith was arrested and charged with kidnapping, sexual

battery of a person under twelve, and first-degree murder.

Trial proceedings

At trial, in the closing argument of the guilt phase, the prosecutor told the jury

repeatedly not to base the verdict on emotion or anger and that reason, not emotion,

should guide their deliberations. (T. 1421-22). The prosecutor later said: back in jury

selection one of your fellow jurors commented that “Cherish did not have a voice in

this courtroom.” (T. 1436). The prosecutor disagreed with the juror’s observation and

referring to the physical and biological evidence, he stated: “through that evidence

she has a voice.” (T. 1436). The prosecutor then stated: “And from the grave she’s

crying out to you, Donald Smith raped me,” “Donald Smith sodomized me,” and

“Donald Smith strangled me until every last breath left my body.” (T. 1436).

Defense counsel did not object. (T. 1437). The defense then waived closing

argument in the guilt phase. (T. 1437). The prosecutor did not give rebuttal closing

argument. (T. 1437). There was no ruling from the trial court regarding the comment

because there was no objection.

The jury convicted Smith of first-degree murder, kidnapping, and sexual battery

of a person under 12 years old. Smith, 320 So.3d at 26. By special verdict, the jury

convicted him of both premeditated and felony murder with kidnapping and sexual

battery as the underlying felonies.

At the penalty phase of trial, the State presented one witness, the victim of a 1992

attempted kidnapping by Smith. Smith, 320 So.3d at 26. Smith presented nine

witnesses, including a psychologist and a neurologist. Jd. The jury unanimously found

six aggravating factors and unanimously recommended a death sentence.

The trial court found the same six aggravating factors including the prior violent

felony based on a prior attempted kidnapping of a 13-year-old girl, as- well as the

heinous, atrocious, and cruel (HAC) aggravator, and the cold, calculating, and

premeditated (CCP) aggravator. The trial court gave five of the six aggravators great

weight but gave the CCP aggravator “very great weight” and sentenced Smith to

death. In her sentencing order, the judge observed that the aggravating factors

“heavily outweigh the mitigating circumstances” and sentence of death is the “only

proper penalty for the murder of Cherish Perrywinkle.” (DA 3134).

Direct appeal in the Florida Supreme Court

Smith appealed his convictions and death sentence to the Florida Supreme Court.

Smith raised five issues in the direct appeal. Smith, 320 So.3d at 26-27. Smith raised

the prosecutor's comment that the victim was crying out from the grave as part of

issue IV in his initial brief. The State’s answer brief pointed out that the issue was

not preserved by an objection at trial and was being raised as a claim of fundamental

error.2 The State’s answer brief relied on the six factors of Darden v. Wainwright, 477

U.S. 168 (1986), to analyze the merits of the claim. The Florida Supreme Court

rejected the claim and affirmed Smith’s convictions for first-degree murder,

kidnapping, and sexual battery of a child. Smith, 320 So.3d at 24, 33.

Current petition for writ of certiorari in this Court

Smith then filed a petition for a writ of certiorari in this Court arguing that the

prosecutor's comment amounted to a due process violation without addressing the

fact the issue was not preserved by a contemporaneous objection.

2 Paez v. Sec’y, Fla. Dep't of Corr., 947 F.3d 649, 652 (11th Cir. 2020) (holding that federal

courts may take judicial notice of state courts’ online court records under Fed. R. Evid. 201(e)), cert.

denied, Paez v. Inch, 141 S.Ct. 309 (2020).

REASONS FOR DENYING THE WRIT

ISSUE I

WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION OF

THE FLORIDA SUPREME COURT HOLDING THAT THE

PROSECUTOR’S COMMENT IN CLOSING ARGUMENT OF THE GUILT

PHASE WAS NOT FUNDAMENTAL ERROR.

Petitioner Smith asserts that this Court should grant review of the Florida

Supreme Court’s denial of his claim of fundamental error. Smith argues that the

prosecutor violated due process in the closing argument of the guilt phase when the

prosecutor told the jury that the victim was crying out from her grave that Smith had

raped and strangled her. There is a threshold issue because the issue was not

preserved by a contemporaneous objection to the prosecutor's comment at trial. The

petition, however, does not address the unpreserved nature of the issue in any

manner. Florida’s concept of fundamental error is not the equivalent to the federal

concept of plain error or the federal concept of structural error. Alternatively, there

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

decision in this case. This Court has never reversed a criminal conviction based on a

prosecutor's comment, much less held that a prosecutor's comment amounted to

structural error. Nor is there any conflict between the decisions of any other federal

circuit court or state court of last resort and the Florida Supreme Court’s decision in

this case. Smith cites no federal circuit court case or state supreme court case holding

that this type of comment is structural error or even reversible error. Because the

petition presents an issue over which there is no conflict but that involves a threshold

issue, this Court should deny review.

The Florida Supreme Court’s decision in this case

Smith in his direct appeal in the Florida Supreme Court raised, among other

claims, a claim that the prosecutor’s comment in closing argument that the victim

was crying out from her grave that Smith raped and strangled her was fundamental

error. Smith v. State, 320 So.3d 20, 26-27 (Fla. 2021). The Florida Supreme Court

concluded that the prosecutot’ comment although not “advisable,” was not

fundamental error. Jd. at 32-33.

The Florida Supreme Court first noted that Smith did not object to the

prosecutor’s comment, so it reviewed the comment for fundamental error. Smith, 320

So.3d at 31. The Florida Supreme Court concluded that the trial court did not commit

fundamental error. Id. at 32. The Florida Supreme Court explained that, while

closing argument must not be used to inflame the minds and passions of the jurors

so that their verdict reflects an emotional response to the crime or the defendant

rather than the logical analysis of the evidence, a prosecutor’s comment “may, indeed

sometimes must, elicit an emotional response from the jury,” particularly “in matters

of life and death.” Jd. The Florida Supreme Court observed that the prosecutor's

comments were moving to the jury “in substantial measure” because they were

characterization of the “disturbing facts in evidence.” Id.

The Florida Supreme Court discussed this Court’s decision in Darden uv.

Wainwright, 477 U.S. 168 (1986), in a footnote. Smith, 320 So.3d at 33 n.5. The

Florida Supreme Court noted the Darden Court relied on six factors in evaluating a

due process claim arising from a prosecutor’s inappropriate comments. The Darden

factors are: (1) whether the prosecutor manipulated or misstated the evidence, (2)

whether the comments implicated other specific rights of the accused, (3) whether the

comments were invited by or responsive to defense counsel’s arguments, (4) whether

the trial court's instructions ameliorated the harm, (5) whether the evidence weighed

heavily against the defendant, and (6) whether the defendant had an opportunity to

rebut the prosecutor’s comments. Jd. at n.5. The Florida Supreme Court applying

those factors, concluded that the prosecutor's comment in this case “did not

manipulate or misstate the evidence, implicated no specific rights of the accused, and

while they were neither invited by the accused nor the subject of an instruction from

the court, were insignificant when compared to the weight of the evidence, and drew

no response from the defendant.” Jd. The Florida Supreme Court noted that “Smith

had an opportunity to rebut the prosecutor's comments in closing argument, but

waived closing statement instead.” Id. at 33 (citing Darden, 477 U.S. at 181).

Florida’s concept of fundamental error is a threshold issue

The Florida Supreme Court in this case applied fundamental error review to the

unpreserved claim regarding the prosecutor’s comment. Smith, 320 So.3d at 31. This

creates a threshold issue in this case which is the differences between Florida’s

fundamental error test and this Court’s structural error test.

Florida’s statute governing appeals and collateral review in criminal cases

permits the state’s appellate courts to review an unpreserved error only if it amounts

to fundamental error. § 924.051(3), Fla. Stat. (2020) (providing: an “appeal may not

be taken from a judgment or order of a trial court unless a prejudicial error is alleged

and is properly preserved or, if not properly preserved, would constitute fundamental

error’); see also Earl v. State, 314 So.3d 1253 (Fla. 2021) (affirming the dismissal of

an appeal where the defendant could not establish any harm that could be “remedied

on appeal” citing § 924.051(7), Fla. Stat. (2020)).

But this Court’s standard for structural error is not equivalent to Florida’s

standard for fundamental error. McDonald v. State, 743 So.2d 501, 505 (Fla. 1999)

(defining fundamental error “as the type of error which reaches down into the validity

of the trial itself to the extent that a verdict of guilty could not have been obtained

without the assistance of the alleged error”). Florida’s concept of fundamental error

is much broader and covers more types of errors than this Court’s concept of

structural error does. Compare McFadden v. United States, 576 U.S. 186, 197 (2015)

(stating that the omission of an element from the jury instruction is subject to

harmless error analysis and is not structural error citing Neder v. United States, 527

U.S. 1, 15 (1999)), with Knight v. State, 286 So.38d 147 (Fla. 2019) (permitting

fundamental error challenges to the jury instructions of the crime of conviction). The

petition, however, does not address the unpreserved nature of the issue in any

manner. Florida’s fundamental error concept is somewhere in between the federal

concept of plain error and structural error. Fed. R. Crim. P. 52(b).

This Court would first have to grabble with these differences between the federal

and Florida tests for unpreserved errors and determine which test should apply to

this case before reaching the actual issue of the prosecutor's comment. This Court

does not normally grant review of cases with threshold issues to avoid these exact

types of preliminary dilemmas. Cf. Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27 (1993) (dismissing the writ of certiorari as improvidently

granted when there was a threshold issue). Due to this threshold issue, this Court

should deny the petition.

No conflict with this Court’s jurisprudence

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

Court’s decision in this case. Sup. Ct. R. 10(c) (listing conflict with this Court as a

consideration in the decision to grant review).

This Court has repeatedly observed that most trial errors are not structural error.

Weaver v. Massachusetts, 137 S.Ct. 1899, 1907 (2017) (explaining that structural

error affects the entire framework of the trial rather than being simply an error in

the trial process itself); Greer v. United States, 141 S.Ct. 2090, 2100 (2021) (explaining

that structural errors are errors that affect the entire proceeding from beginning to

end but, by contrast, discrete defects in the trial are not structural error because such

errors do not necessarily render a criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence). This Court has never hinted

that a prosecutor’s comment alone could amount to structural error.

This Court has also warned of the dangers of appellate courts not enforcing the

contemporaneous objection rule. Puckett v. United States, 556 U.S. 129, 134 (2009).

The Puckett Court explained that appellate courts not enforcing the preservation

requirement would result in sandbagging where defense counsel intentionally

remains silent when the error occurs at trial and then belatedly raises the error on

appeal only if the trial does not conclude in his favor. Relief based on unpreserved

error should be, in the Puckett Court’s words, “strictly circumscribed.” Jd. Expansive

views of plain error or fundamental error by appellate courts would be “fatal” to trials.

Id.

The Florida Supreme Court in this case applied this Court’s due process test for

prosecutorial comments. Smith, 320 So.3d at 33 n.5 (applying Darden v. Wainwright,

477 U.S. 168 (1986)). In Darden, this Court, while condemning the prosecutor’s

comments, held that the comments were not a due process violation and did not

deprive the defendant of a fair trial. The prosecutor’s comments included calling the

defendant an “animal”; expressing a personal wish for Darden’s death by saying: “I

wish [Mr. Turman] had had a shotgun in his hand when he walked in the back door

and blown his (Darden’s) face off. I wish that I could see him sitting here with no face,

blown away by a shotgun.” The prosecutor, referring to Darden, said: “He shouldn’t

be out of his cell unless he has a leash on him and a prison guard at the other end of

that leash.” Darden, 477 U.S. at 180 n.12. This Court observed that these “comments

10

undoubtedly were improper.” Jd. at 180. But the Darden Court explained that it is

not enough that the prosecutor’s comments are “undesirable or even universally

condemned”; rather, the relevant question is whether the prosecutor’s comments “so

infected the trial with unfairness as to make the resulting conviction a denial of due

process.” Id. at 181 (citing Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). The

Darden Court relied upon six factors in evaluating a due process claim arising from

a prosecutor's inappropriate comments in closing argument: 1) whether the

prosecutor manipulated or misstated the evidence, 2) whether the comments

implicated other specific rights of the accused (such as the right to remain silent), 3)

whether the comments were invited by or responsive to defense counsel’s arguments,

4) whether the trial court’s instructions ameliorated the harm, 5) whether the

evidence weighed heavily against the defendant, and 6) whether the defendant had

an opportunity to rebut the prosecutor’s comments. The Darden Court concluded that

the prosecutor's comments “did not deprive petitioner of a fair trial.” Id. See also

Parker v. Matthews, 567 U.S. 37 (2012) (rejecting a claim that the prosecutor's

argument, which insinuated that the defendant colluded with his lawyer and expert

to manufacture an extreme emotional disturbance defense, violated the due process

test established in Darden and noting that Darden involved a prosecutor’s comments

that were “considerably more inflammatory,” such as referring to the defendant as

an “animal”).

Using the Darden factors, the prosecutor’s comment that the victim was crying

out from the grave that Smith was the perpetrator was not reversible error, much

less structural error. First, the comment did not manipulate or misstate the evidence.

The prosecutor's comment that the victim was crying out from the grave that the

defendant was the perpetrator, while hyperbole, did not misstate either the evidence

or the law. Second, the comment did not implicate other constitutional rights of the

defendant such as the right to remain silent or to not testify. Third, while the

11

comment was not an invited response to defense counsel’s arguments, it was a

response to a juror’s observation about the victim not having a voice in the courtroom.

The prosecutor was responding to that observation by saying the evidence was the

victim’s voice. Fourth, while the trial court did not ameliorate the harm by giving a

curative instruction, that was because there was no objection to the comment.and no

request for a curative instruction. Fifth, the evidence weighs quite heavily against

the defendant. Smith’s DNA profile matched the DNA found on the victim’s neck and

anus, an eight-year-old girl, at one in thirty-five quintillion and his DNA profile

matched the semen from the victim’s vagina at one in twelve quadrillion. (T. 1345,

1349, 1358). Furthermore, the store’s numerous surveillance cameras captured the

beginning of the kidnapping when Smith walked with Cherish out of the store and

drove off with her when he had told her mother they were going to the McDonald’s

inside the store. It is an understatement to describe the evidence in this case as

overwhelming. And sixth, defense counsel had the opportunity to rebut the

prosecutor’s comment in his closing argument but waived closing argument instead.

This comment fails to meet at least five of the six Darden factors. While certainly not

an advisable argument, the prosecutor’s comment was not reversible error, much less

structural error. There is no conflict with Darden.

Opposing counsel acknowledges that the Florida Supreme Court employed

Darden to analyze this claim but then argues that the Florida Supreme Court “forgot

about the defendant’s constitutional rights.” Pet. at 6 n.2. But the prosecutor's

comment was not a comment on any other constitutional right, such as the

defendant’s right to remain silent or the right not to testify. Furthermore, opposing

counsel acknowledges the sheer strength of the prosecution's case against Smith, but

does not explain why the prosecutor’s comment was not harmless in light of that

evidence, if the issue had been preserved. Pet. at 6 (listing the evidence against Smith

as including “witnesses, video, wet clothing, purchased items, the van and DNA”).

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Smith is really asserting he should be granted a new trial not because his first

trial was unfair but as a means of punishing the prosecutor. Pet. at 9 (referring to the

case as a “slum dunk” based on the evidence but then stating the prosecutor “chose

to enflame the jurors’ emotions and sense of retribution to assure a sentence of

death”). But, even when a prosecutor’s comment is one that would be universally

condemned by all courts, this Court has explained that appellate courts should not

reverse a criminal conviction merely to punish prosecutorial misconduct. United

States v. Hasting, 461 U.S. 499 (1983) (condemning a federal circuit court for using

its supervisory power to reverse a conviction based on a prosecutor’s comment when

the prosecutor's comment was harmless error). A criminal conviction should not be

reversed unless the comment amounted to a denial of a fair trial. Rather, the

appropriate remedy for prosecutorial misconduct is to discipline the prosecutor, not

to reverse the conviction. This Court already answered the question raised in the

petition adversely to the petitioner in Hasting.

There is no conflict with this Court’s jurisprudence.

No conflict with other appellate courts

There is also no conflict between that of any federal appellate court or state court

of last resort and the Florida Supreme Court’s decision in this case. Sup. Ct. R. 10(b)

(listing conflict among federal appellate courts and state supreme courts as a

consideration in the decision to grant review). As this Court has observed, a principal

purpose for certiorari jurisdiction “is to resolve conflicts among the United States

courts of appeals and state courts concerning the meaning of provisions of federal

law.” Braxton v. United States, 500 U.S. 344, 347 (1991). Issues that have not divided

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

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

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

There is no conflict between the Florida Supreme Court's decision in this case and

the federal circuit courts’ view of plain error and prosecutorial comments. The

prosecutor's comment in this case would not amount to plain error under United

States v. Olano, 507 U.S. 725 (1993), if this was a federal prosecution. See, e.g., United

States v. Magnan, 756 Fed. Appx. 807, 822-23 (10th Cir. 2018) (holding, in an

aggravated sexual abuse case, that the prosecutor’s comment pointing out to the jury

that the victim’s parents were crying during the victims’ testimony, which was an

“isolated” comment in a lengthy closing argument, was not plain error). Opposing

counsel does not cite any federal circuit court case finding a due process violation

involving a similar prosecutor’s comment, much less doing so using a structural error

analysis. There is no conflict between the federal circuit courts and the Florida

Supreme Court’s decision in this case.

There is also no conflict with any state court of last resort. In People v. Cloutier,

687 N.E.2d 930, 948 (Il. 1997), the Illinois Supreme Court affirmed the conviction in

a capital case where the prosecutor argued in closing of the penalty phase “what is at

stake here is nothing short of human justice,” because “from their graves there are

two women who cry out for human justice. And in this whole world of ours there are

only 12 people that could hear them and answer their cries, and that’s the 12 of you.”

The Illinois Supreme Court concluded the prosecutor’s comment was “not so

inflammatory as to constitute reversible error.” Opposing counsel cites no state

supreme court case holding that a prosecutor's comment regarding the victim crying

out from the grave is structural error. There is no conflict between the lower appellate

courts and the Florida Supreme Court's decision in this case.

Opposing counsel improperly relies on conflict between the Florida Supreme

Court’s decision in this case and prior Florida Supreme Court cases to establish

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conflict. Pet. at 8. But the conflict this Court’s rules refer to as a basis for review in

this Court is conflict among the state supreme courts, not a conflict within one state’s

caselaw. Sup. Ct. R. 10(b) (providing: “a state court of last resort has decided an

important federal question in a way that conflicts with the decision of another state

court of last resort or of a United States court of appeals”) (emphasis added). Any

conflict within Florida caselaw regarding prosecutors’ comments is not a proper basis

for review in this Court. There is no conflict among the lower appellate courts.?

The prosecutor’s comment and the golden rule

Opposing counsel oddly seems to view the prosecutor’s comment about the victim

crying out from her grave to the jury that Smith was the perpetrator as a “subtle”

golden rule violation. It is not. A golden rule violation is an argument by counsel

3 While it does not matter for purposes of review in this Court, there is no real conflict between

the Florida Supreme Court’s decision in this case and the Florida Supreme Court's prior decision in

Urbin v. State, 714 So.2d 411, 421 (Fla. 1998). Pet. at 9. The Florida Supreme Court did not reverse

and remand for a new penalty phase in Urbin based on the prosecutor’s numerous improper comments

in the penalty phase. Rather, the Florida Supreme Court reversed the death sentence on the basis of

proportionality. Urbin, 714 So.2d at 418 (finding that “death is a disproportionate penalty” in the case

of “tragic killing” involving a seventeen-year-old defendant). The Florida Supreme Court specifically

noted that its reducing the sentence to life “mooted” the issue of the prosecutor’s improper comments

but then invoked its “supervisory responsibility” to condemn numerous comments the prosecutor had

made during the penalty phase closing argument. Jd. at 418-19. Among the many comments the

Florida Supreme Court condemned in Urbin was one comment by the prosecutor that the victim had

been shot while “pleading for his life,” which the court characterized as a “subtle ‘golden rule”

argument and stated that the prosecutor by “literally putting his own imaginary words in the victim’s

mouth,” unduly aroused and inflamed the sympathy, prejudice and passions of the jury. Id. at 421.

But Urbin involved an entire series of improper prosecutorial comments, not merely one comment, as

is the situation here. Jd. at 420-22 & nn.9, 10, & 14. Indeed, the Florida Supreme Court itself noted

the sheer number of improper comments made by the prosecutor in Urbin. Id. at 422 (noting that “so

many of these instances of misconduct .. .”). The Florida Supreme Court usually does not reverse based

solely on one improper comment by the prosecutor. Jordan v. State, 176 So.3d 920, 929 (Fla. 2015)

(concluding that the prosecutor’s comment: “Don’t let him get away with this,” while improper was not

fundamental error in part because the prosecutor made the comment only once); Lowe v. State, 259

So.3d 23, 48 (Fla. 2018) (concluding that the prosecutor's comment comparing the worth of the victim's

life to that of the defendant was not fundamental error because the comment “represented a very brief

portion” of the State’s entire closing argument), cert. denied, Lowe v. Florida, 1389 S.Ct. 2717 (2019).

For both these reasons, there is no conflict between this case and Urbin.

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designed to place the jurors in the role of the victim. See, e.g., United States v. Hall,

979 F.3d 1107, 1119 (6th Cir. 2020) (stating that “asking jurors to place themselves

in the victim’s shoes violates the ban on Golden Rule arguments”); United States v.

Susi, 378 Fed. Appx. 277, 283 n.5 (4th Cir. 2010) (explaining a golden rule violation

is when counsel argue that the jurors should put themselves in the shoes of the

plaintiff which is universally recognized as improper quoting Ivy v. Security Barge

Lines, Inc., 585 F.2d 732, 741 (5th Cir. 1978)). The prosecutor in this case was not

urging the jurors to put themselves in the victim’s position and imagine themselves

as an eight-year-old girl being repeatedly raped and then strangled to death. Rather,

the prosecutor was attempting to convey the victim’s thoughts and words to the jury

and to have her metaphysically point her finger at the defendant as the perpetrator.

The prosecutor’s comment was not even a “subtle” golden rule violation. United States

v. Matias, 707 F.3d 1, 6 (1st Cir. 2013) (explaining that the prosecutor's comment

asking the jurors if they had ever engaged in similar conduct was not a “Golden Rule”

argument). And even true golden rule violations are often found not to be plain error

by the federal circuit courts. See, e.g., United States v. Hunte, 559 Fed. Appx. 825, 833

(11th Cir. 2014) (finding three improper golden rule violations were not plain error

even considered cumulatively because the prosecutor's comments did not affect the

defendant’s substantial rights because the jury was instructed that the arguments of

counsel are not evidence and because of the overwhelming evidence of guilt).

In sum, the petition presents an issue which does not involve any conflict among

the courts but which does involve a threshold issue. There is no basis for granting

certiorari review of this case.

Accordingly, this Court should deny the petition.

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ATTORNE ys

ae ENERAL OF FLORIDA

Canin M. f Bement

Associate Deputy Attorney General

Counsel of Record

Charmaine Millsaps

Senior Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

CAPITAL APPEALS

THE CAPITOL, PL-01

TALLAHASSEE, FL 32399-1050

(850) 414-3584

(850) 487-0997 (FAX)

email: capapp@myfloridalegal.com

charmaine.millsaps@myfloridalegal.com

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