Opposition Brief — Marlin Larice Joseph, Petitioner v. Florida

CASE NO. 21-8177

IN THE UNITED STATES SUPREME COURT

October 2021, Term

MARLIN LARICE JOSEPH,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

ASHLEY MOODY

Attorney General

Tallahassee, Florida

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

Florida Bar No.: 158541

*Counsel of Record

LESLIE T. CAMPBELL

Senior Assistant Attorney General

Florida Bar No. 0066631

OFFICE OF THE ATTORNEY GENERAL

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

CapApp@myfloridalegal.com

Leslie. Campbell@myfloridalegal.com

Telephone: (850) 414-3300

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

Issue I - Whether certiorari review should be denied

because (1) the issue of alleged arbitrariness of Florida’s

capital sentencing was not raised before the Florida

Supreme Court; (2) Florida’s capital sentencing does not

violate the Eighth Amendment as it narrows the class of

defendants eligible for the death penalty; and (3) the

Florida Supreme Court‘s opinion does not conflict with any

decision of this Court, a federal circuit court, or state

supreme court? (restated)

Issue II - Whether certiorari review should be denied where

Petitioner failed to raise a federal constitutional claim

below and the Florida Supreme Court resolved the

discovery issue based on state law and that decision does

not conflict with a case from this Court, a federal circuit

court or another state supreme court? (restated)

Issue III — Whether certiorari review should be denied as

the Florida Supreme Court correctly declined to conduct a

proportionality review under Lawrence v. State and that

ruling does not conflict with Pully v. Harris or this Court’s

Eighth Amendment jurisprudence and it does not involve

an important, unsettled question of federal law? (restated)

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW............ccccccccccsscssccsssssscssseseeseaseaseces i

TABLE OF CONTENTS. ..00...0..cccccssssscesseseseeeesetseceesssesecsceseceesscsusassaucssssassacaceas ii

TABLE OF CITATIONS. 000... ecscsesesesestseeeeeeeesesseseecsesseseestensesessesensesseseseecerees lv

CITATION TO OPINION BELOW. ............:..cccsccscsssssssssesseseeseeseseeasessseussaseesseteee 1

JURISDICTION 0... ceccsssccsesscsssessesseeseesceesesseceseseeestesessstessessessssecnescseseseseeenes 1

CONSTITUTIONAL PROVISIONS INVOLVED .............c:ccccsscesssccsecerseeseseeeees 1

STATEMENT OF THE CASE AND FACTS .........cesssscesscsscssessesscscecsensaeeeseass 2

REASONS FOR DENYING THE WRIT.......0......ccccccssssssssescesssscescsssessessseeenats 10

ISSUE I - CERTIORARI REVIEW SHOULD BE DENIED BECAUSE (1)

THE ISSUE OF ALLEGED ARBITRARINESS OF FLORIDA’S CAPITAL

SENTENCING WAS NOT RAISED BEFORE THE FLORIDA SUPRPEME

COURT; (2) FLORIDA’S CAPITAL SENTENCING DOES NOT VIOLATE

THE EIGHTH AMENDMENT AS IT NARROWS THE CLASS OF

DEFENDANTS ELIGIBLE FOR THE DEATH PENALTY; AND (3) THE

FLORIDA SUPREME COURT'S OPINION DOES NOT CONFLICT WITH

ANY DECISION OF THIS COURT, A FEDERAL CIRCUIT COURT OR

STATE SUPREME COURT (RESTATED) ..............ccccccssesssssscseeseeseseceseeeees 10

ISSUE II - CERTIORARI SHOULD BE DENIED WHERE PETITIONER

FAILED TO RAISE A FEDERAL CONSTITUTIONAL CLAIM BELOW

AND THE FLORIDA SUPREME COURT RESOLVED THE DISCOVERY

ISSUE BASED ON STATE LAW AND THAT DECISION DOES NOT

CONFLICT WITH A CASE FROM THIS COURT OR ANY OTHER

FEDERAL CIRCUIT OR STATE SUPREME COURT (RESTATED) ...... 19

ISSUE III - CERTIORARI REVIEW SHOULD BE DENIED AS

PROPORTIONALITY REVIEW IS NOT REQUIRED UNDER THIS

COURT'S EIGHTH AMENDMENT JURISPRUDENCE (RESTATED)... 28

CONCLUSION ...ooo eee ecesceececeesenseesecesaeseneesseesseeueesaesseseeesesstsaussssssssesscesecees 34

ii

TABLE OF CONTENTS - cont'd

APPENDIX:

JOSEPH V. STATE, CASE NO. SC20-1741 - INITIAL BRIEF OF

APPELLANT 0... cccseesseesssusessessssscceceeseeeenecseseessaecsuseeeseeeanssaeseesaeeseusscsesaeseses A1-128

ili

TABLE OF CITATIONS

Page(s)

Cases

Allen v. Woodford,

395 F.3d 979 (Sth Cir. 2005) .......cccccsescsssecscsssscccscscessssssccscsssecsesesesenacarsassecaeesersaenens 32

Anderson v. Harless,

A459 U.S. 4 (1982) oo cccccsscsscssssssccsscccsceccccscesseccsecsesssssuscecssessessesssessessececsesessecseseeees 21.

Bates v. State Bar of Arizona,

433 U.S. 350, 97 S. Ct. 2691, 53 L.Ed. 810 (1977) oo. cscessssessesscscececseeceesseeeen 18

Braxton v. United States,

500 U.S. 844 (1991) oo. cccccsccececssccsssceceeseesesscsecssecearsseesesscessesseeccseecueesaeaseuess 31

Bush v. Singletary,

99 F.8d 373 (11th Cir. 1996) oo... ccccesccecceccscesecsaessceecessescecsessseenseeceueceuenscesess 32

Bush v. State,

295 So. 8d 179 (Fla. 2020) 0... eeceseeseccesccecceseceecsecesscesessesscsaceecensesseessueesseassscsessecsees 6

Chambers v. Mississippi,

A10 U.S. 284 (1978) oo. ccceccseccscsscsscssscesecsceessessesscscsssscscscssssscsecsesceeseeseeeasaeaceasancacaces 26

Cobb v. Thaler,

682 F.3d 364 (Sth Cir. 2012) ou... ecccscesssscsscssssescscsssssssscscssescevsesecsvneetsasacesszeasees 32

Copenhefer v. Horn,

696 F.8d 377 (8d Cir. 2012) oo... ee ceescesccscceseceecceccesscesseceressesssescessecsecenuasseseseecees 382

Cox v. State,

819 So. 2d 705 (Fla. 2002) oo... ceccesecscccceccsesccessecessseseseessecsessscseccsecseuusececsesseees 9, 24

Delhall v. State,

95 So. 3d 134 (Fla. 2012) 0... ccccccccscssseesssssssssssscsessscesescevasseecacseeessesecestsesesssaeseses 22

Diaz v. Sheppard,

85 F.3d 1502 (11th Cir, 1996) .........ccccccccscsscssssescsesssscscccssscsseececseeceasenesaeasseessseeseses 20

Duncan v. Henry,

513 U.S. 364 (1995)... ccessessssesesssssssesscseseesscsssecsusssscscsesvececsevsvsesatavaceetsacaeaesasas 20, 27

Espinosa v. Florida,

BOBS U.S. 1079 (1992) .......eeessesssesceessessesssscsscsesecesscsscscscscsesssvacscsevavacsaceatensecsarseeusans 17

Estelle v. McGuire,

BOQ U.S. 62 (1991) oo eccesseesesscsesecssssessesscsucassssssscacessssesvececsecsvacseesasacestsacacseceenes 16

FERC v. Mississippi,

ABG U.S. 742 (1982) oo... cccccsssssssessescesessessesesscsesscsssscsescscsessesvevseerenscareetsaceasensacseaceees 13

Fisher v. Angelone, ,

168 F.3d 835 (4th Cir. 1998) .....cccccccssccssccccscccsecesecccceceecssccercseestessesasessacessecsecseesecene 32

Franchise Tax Bd. v. Constr. Laborers Vacation Trust,

AGB U.S. 1 (1988) oo... eeceecssssssessssesscsscsssccsssscsccsescessecsesssccevsvececavavensansesaesereccacseseates 20

Furman v. Georgia,

408 U.S. 238 (1972) ....ccecssscsscscesscssessesessessecsscsscsscsssscessesecessceveeseveesetaecacearsas 11, 14, 29

lv

General Talking Pictures Corp. v. Western Electric Co.,

BO4 U.S. 175 (1924) oc ceccccsscesesccsssssescccececcsesscscsssesscevsvevevevsnscesscansaaeesesacsneeseseavseaces 14

Godfrey v. Georgia,

A4G U.S. 420 (1994) ooo cccccccccecescecseccssesssecesesessstacsesaceseseeseasessesseeesneseseueseasasees 14

Gregg v. Georgia,

A428 U.S. 153 (1976) ou... ceccccccccsessescecesssseesessessseceesesasscssssssscsessscsssseceaeverseceessaeesecsaeacass 29

Hall v. Florida,

B72 U.S. 701 (2014) oo ccececessescsceseesssssssnsseccescessseecsessscesesscscsussestessusssusstusecsueecessecess 12

Hall v. State, ;

201 So. 3d 628 (Fla. 2016) .......ccccccscssssseescssescssscscsescssssscsvevavseevsvsvsesatsasacearsaseassacatsees 12

Hooks v. Branker,

348 Fed. Appx. 854 (4th Cir. 2009) .............ccccccccsccsssssscescscscecececeeseceaecesseesseascacatans 32

Hurst v. Florida,

B77 U.S. 92 (2016) o..cccccccccscssscsessssssessesssccesscseececssssssessscscsessessseseataueccanseeereneeceaceatass 14

illinois v. Gates,

ABZ U.S. 218 (1988) oo. cecccceesssssssssecsscssescessesesecsesesssesscscesacsessasscseusseasssesenecacseecerstans 13

Jones v. CPCP Warden,

815 F.3. 689 (11th Cir. 2016) oo... eecccecceccecseccescesessesssacesesececssccesecesscccecsesecses 18

Joseph v. State,

336 So. 8d 218 (Fla. 2022) 0.0... cccccecscssssssscsssssscsessesesescassesssssssecsccecseceececeeres Passim

Jurek v. Texas,

A2Z8 U.S. 262 (1976) oo. ececcccceccccsscssescceececcecseceeceseeseeseeseessssaceaseasecuesereceeeeeseeseecsnses 29

Kansas v. Marsh,

B48 U.S. 163 (2006) oo... eeecccssesseseeseseececcseesenesesencensussscsessscseassvcavsececsseveneceaens 14, 19

Lawrence v. State,

308 So. 3d 544 (Fla. 2020), cert. denied, 142 S. Ct. 188 (2021) ..........0.ccecceee Passim

Lewis v. Jeffers,

AQT U.S. 764 (1990) ......cceccsesecsessseessessesteseceessessescsessescscsesssssessseseacsesenseasenececeasereaeecs 30

Lindsey v. Smith,

820 F.2d 1137 (11th Cir. 1987) o.oo... ee eeesesceaceccsecceccessssessescssessesececensecceuseussecsesses 32

Louisville & Nashville R.R. v. Mottley,

211 U.S. 149 (1908) oo... ceseseseesscessessseccesesesssecsessscscscssscscsesescstsessateesaceateeeceeserecenes 2O

Lynch v. State,

841 So. 2d 362 (Fla. 2003) oo... cecseccccsseccesseceeseccessssessesecscceesecessececsucesuensaceeessecsececs 17

McDutfte v. State,

970 So. 2d 812, B21... ee cecceesesccesescvecceesecscsnsnsscesceccsececscaseceseveseeeseecercauessees 9, 22

Mendoza v. Secy, Fla. Dep't of Corr.,

659 Fed. Appx. 974.0... eeccsessseceesseesececsseesssceessscsssesseccsseeceseeseescessssssesecsasssecserees BZ

Merck v. State,

763 So. 2d 295 (Fla. 2000)... cceessccesseccescscescsacceceesessccesesscsecesuccececsssecstuesseecess 16

Middleton v. Roper,

A98 F.3d 812 (8th Cir. 2007) ..........ceccescescssssecsssssssesscssssssssssescevscsveceecsassacsaceeccarsesseas 32

Morris v. State,

219 So. 8d 33 (Fla. 2017) ...c.ccccccccccccsceccsccessesscesesneceessceacssssscscesecsseecssenssvececunseeseese 27

Murray v. Giarratano,

A492 U.S. 1 (1989) oo. ccccccccccsccscesessscssssevsccsesscsscaecasseseuacaescaesessesuesuessesauceressscsesecass 30

Newberry v. State,

288 So. 3d 1040 (Fla. 2019) .......ccccccsssssccsessssssesesssesessssessscscscsessceusscsescateceeesesacecsvavasaes 6

Page v. Arkansas Natural Gas Corp.,

286 U.S. 269 (1932) ......ececsesccsssscsesescesssccscscscssssessessscscscsesssssesscasasavaceacecatcsaveesusaesenes 14

Picard v. Connor,

404 U.S. 270 (197 Y) oe.eecececsesssscsssesesceccscsessescsesssesesssssussssssussssssscssssaeseceseecesecatacseecsens 21

Protitt v. Florida,

428 U.S. 242 (1976) oo... eeccceccsesessesesessescesessesesesceseececsesceceussansusssesssavavacsaveceues 14, 18, 29

Pulley v. Harris,

465 U.S. 837 (1984) oo. cccccccscssscsscsssccsersccsesssesasacteesecseseraseeessesseceacees 28, 30, 31, 33

Richardson v. State,

246 So. 2d 771 (Fla. 1971) ......cecseccscesessssessssesesseseecsescseaescscscsescecsssacsvacsenseeneass 7, 20, 22

Rock v. Arkansas,

483 U.S. 44 (1987) oo. cceccecccccsscsscssssscssccsuseesesesseveccassesseacsesaesscscestesueseuessuesseesecsecees 26

Rockford Life Insurance Co. v. IHinois Department of Revenue,

482 U.S. 182... ccccecsssccsssseceecsssssessnssanseeceenesvassuseusscecscssuesesseeceseessansnsanececeecees 13, 31

Rogers v. State,.

285 So. 8d 872 (Fla. 2019) .......cscccssssssssssseccsessssesessessecscscsssecssscseavassessscsasacsceceeeeesceesees 6

Scipio v. State,

928 So. 2d 1138 (Fla. 2006) .........cccccsssssssssessscsecssescsecsescsesssessusssssasscssecsceveseceueeseseaeeess 9

Scott v. Singletary,

88 F.8d 1547 (11th Cir. 1994) woo cc ccscececcccecsesssseesessessessecsecseessees seveeeesenens 18

Silagy v. Peters,

905 F.2d 986 (7th Cir. 1990).............. sesuceaescecessssssecsaesensascsseseseaessansensessssesesseeveceeeeees 32

Spaziano v. Florida,

AGB U.S. 447 (1984) 0... ecceccccssesscsssesecsecsesecscsesecssscsssssssusssssesssarssesearaceseeesesecaesuearasaes 14

State v. DiGuiulio,

AQT So. 2d (1984) oo. eeeeecssssssssssssssseseseesesesessesesesenesescseesesesususcsssuecsessacseessecececavacseaeass 21

State v. DiGuilio,

A91 So. 2d 1129 (Fla. 1986) ........ccccccccccccccesscscesecsesscsececcecescaecesssessesseseecnresseseuss 10, 24

State v. Resiles,

Case No. 06-2014-CF-012657A (Fla. 17 Circ. Ct. 2022) .o....ccccccccccccsscccecscecessecese 13

State v. Riechmann,

777 So. 2d B42 (Fla. 2000) 00... .eeccccecccscesssessesescsseseecsesesesescsssssnsesssssseevececeseesesecaeananss 27

State v. Schopp,

653 So. 2d 1016 (Fla. 1995) .......ccccecccsccsssessescssscecsecseseesecsseassceascsesscssessecsceseuseusseseese 9

State v. Wood,

580 S.W.3d 566 (Mo. 2019)... ecessecessecccessesesseesesssssessceseessssesseeseeneeseecececsessesseeaees 32

Thompson v. Parker,

867 F.3d 641 (6th Cir. 2017) oo... eee eeeeee eeseuseecensuesseeceeeesssesessecavecscessceeeeaeeaees 32

United States v. Aquart,

912 F.3d 1 (2d Cir, 2018) ........cccccscesssscesesessesesseecsescssssscscscscscsceseuseseesessecsccaveceeeuencasas 31

vl

United States v. Bess,

75 M.J. 370 (January 6, 2016) .........cccccccscssssesssscssscscscececseseevsvecetasseesesesasscsesesecanaces 25

United States v. Camargo—Vergara,

57 F.8d 998 (11th Cir.1995) oo... cceccescccecesccecsesesceccsscssscesscseececcecuceessuseeeusersesees 24

United States v. Hennis,

79 M.J. 370 (February 28, 2020)..........cccccccsssssssssesssesesssecssscsceseececceesssacetscensseseseses 25

United States v. Israel,

60 Mud. 485 (C.A.A.F. 2005) oo... ccc ccccsseccseccscecesesecssescsccsessessesuestesstsseuseussusecseeecseee 25

United States v. Johnston,

268 U.S. 220 (1925) oo. .eecccccessensseesssscessecsesscsscssscescscscececvecscsesecaesaesecsesetsasseseeees 14, 27

United States v. Jones,

132 F.3d 232 (5th Cir, 1998) .......ccccssccsesssssccccsssccscssscsescscecevecsceseacescssscsseseseseaceeceesees 31

United States v. Rodriguez,

799 F.2d 649 (11th Cir. 1986) ........ccccccccscccsscscsscscseesscsvececavacseeceasseeccsesseceacaeseseseseans 24

United States v. Scheffer,

523 U.S. 803 (1998) occ ccscssesesssscsscsessesesecessesecocscssvecsescseeesatsesaeecsssssesesacsuseesseneanens 26

United States v. Tsarnaev,

142 S. Ct. 1024 (2022) occ cccccscccsscscsesscscsesecsesssecstsrssssesserecssecersasersavauecsusasscacsees 12

Washington v. Texas, —

BBB U.S. 14 (1967) ....ccccseccscsccscsscssssssecseseesscessseesaescescscesssrsecsessescssececeeuceessusecssueseese 26

Wilcox v. State,

B67 So. 2d 1020 (Fla. 1979) .....eccccceecesssescccscceseceececsseresscsseccesecuecnssceuessussesesssseesees 23

Wood v. Missourie,

140 S. Ct. 2670 (2020) 0... ccccccsescssesescsssccesssessascensstseateceacees seseuceeseeeseeaeesseeseseeseee 33

Wright v. State,

19 So. 3d 277 (Fla. 2009) .........ccccccssscsccsesesscsscsecusessesscsesssesseseseseceeececsevsuseessaueseaeseees 27

Yee v. City of Escondido, Cal,

503 U.S. 519 (1992) oo. cccccscsssscsssesssessssensevsnssssescscsssceecesssseescssesaeacsueseseecsesees 13

Zant v. Stephens,

ABZ U.S. 862 (1988) oo... ccceccesssscsscsesssscesscesseecseesetscassssssscececeescesceescesseassasataestene 15, 29

Statutes

18 U.S.C. § B59] oo. ccc ccsccsecsccsecsscsecescsecesecscnneeesseaaeusausessesesaceccsscacsessneteaseneesesusesens 31

28 U.S.C. § 1257 (a)... .cececccsescccsccscsssscsesscecsesecsccsssessacausnscstacscassseasecescaecstsstatatassesseeesseece 1

28 U.S.C. § 2254 oo ceccccsescsececescseceecessssueceaseuseaeseceseasssseeseceseessessenarseseaesetsseesserseeeres 32

Colo. Rev. Stat. Ann. § 18-1.8-1201 0... ccc ccscccccssssssscssscecsccessecsesessneesesstecesseceneseees 12

section 921.141(5), Fla. Stat. (1997) ........ccccesssscssscssssssssssesccececcsesevececesassasssesesacseseesess 16

section 921.141(6), Fla. Stat. (2018) oo... eccesssssescescecssssecseesecsecsecsssseesessessusaceesseceee 6

section 921.141(6), Fla. Stat (2019) .........ceeeeccccccessssscssscssescesessccesecsssssesscsssceseseeseese 15

section 921.141, Fla. Stata... ccccccccccccccseseeceesseesessecsacsessssececeecessccesessasnauseness Passim

section 921.141, Fla. Stat (1978) .......ccccccccscsssscessssssssessscsessececeessessescsatsssassssssseecseses 15

section 921.141, Fla. Stat (1979) oo... ee eeccsssssesececssssscssessecscsessscessecssesessseecoseesees 15

vil

Rules

Florida Rule of Criminal Procedure 3.220 ..0.........c.ccceesccsssecseessesesencesessceesscscesecescene 23

Fla. Std. Jury Instr. 7.11 (Crim) ..0....ccccccccccccececececcscecsesescssessecsaressces 2, 17, 19, 22, 26

Rule 10, Rules of the Supreme Court of the United States........0.....ccccccccssessoesseesesees 13

Rule 14.1(g), Rules of the Supreme Court of the United States..........ccccccccccccssssssssseee 2

Other Authorities

United States Department of Justice News Release dated August 7, 2012............. 12

The Denver Post, August 7, 2012 ..........cc.cccccccccssecceceessccccecesessnnccccccseceseueusecsuscuceseses 12

Article 1, section 17 of the Florida Constitution ...............ccccsccccccccseeescececseseeusessessesees 30

United States Constitution Amendment Six ............cccccecccceseeseccceeesceceecssceessceseee 14, 26

United States Constitution Amendment Hight....0....0....ccccccccccscccesecccesssscenscesees Passim

viii

CITATION TO OPINION BELOW

The decision of which Petitioner seeks discretionary review is reported as

Joseph v. State, 336 So. 3d 218 (Fla. 2022).

JURISDICTION

Petitioner, Marlin Larice Joseph (“Joseph”), is seeking jurisdiction pursuant to

28 U.S.C. § 1257(a). This is the appropriate provision.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent, State of Florida (“State”), accepts as accurate Petitioner's

recitation of the applicable constitutional provisions involved.

STATEMENT OF THE CASE AND FACTS!

The instant capital case is before this Court upon the Florida Supreme Court’s

affirmance of Petitioner’s, Marlin Larice Joseph (“Joseph”), capital conviction and

sentencing on two counts of first-degree murder and one count of possession of a

firearm by a convicted felon. In addition to other issues presented to the Florida

Supreme Court, Joseph challenged: (1) the admission of the testimony of a firearms

expert following a discovery violation; (2) the constitutionality of Florida’s capital

sentencing as proportionality review was no longer mandatory; and (3) that section

921.141, Fla. Stat. is unconstitutional because it does not narrow the class of

defendants eligible for the death penalty. The Florida Supreme Court determined the

trial court had resolved correctly the discovery violation and affirmed his convictions

and sentences without conducting a proportionality review or commenting on the

constitutional challenges to Florida’s capital sentencing beyond stating in a footnote

that the court repeatedly had rejected similar challenges. Joseph v. State, 336 So.

3d 218, 227 FN5, 231-32 (Fla. 2022), reh'g denied, SC20-1741, 2022 WL 831661 (Fla.

Mar. 21, 2022). Joseph’s Petition for Writ of Certiorari followed.

On January 18, 2018, Joseph was indicted for two counts of first-degree murder

with a firearm for the deaths of Kalandaa Crowell (“Crowell”) and her eleven-year-

old daughter, Kyra Inglett (“Kyra”). Joseph was also indicted for one count of a felon

1 The State rejects Joseph’s argument-riddled “Pertinent Facts and Background”

which fails to follow the spirit and direction of Rules 10 and 14.1(g), Rules of the

Supreme Court of the United States. The State provides its statement of the case

and facts.

in possession of a firearm. The firearm charge was bifurcated for trial.

Nine people lived in the West Palm Beach, Florida home where the crimes took

place. Joseph lived in the home with his eight-year-old daughter, Kamare Canty

(“Canty”), his mother, Robin Denson (“Denson”), and his three brothers,? Also living

in the home were Denson’s girlfriend, Crowell and her daughter, Kyra, and Denson’s

goddaughter, fifteen-year-old Jeshema Tarver (“Tarver”). Joseph, 336 So. 3d at 224.

On December 23, 2017, five days before the murders, Canty and Kyra had two

disagreements, but later reconciled. That day, Jeshema overheard Joseph shouting

at Denson about Kyra and stating she “hald] one more time to make [him] mad or to

bother, she needs to leave my daughter alone.” /d. at 225.

Late in the day of December 28, 2017, Kamare, Kyra and Jeshema were sitting

on the living room couch laughing and talking. Crowell was in her bedroom while

Denson was talking to Joseph about Kamare’s mother. Shortly thereafter, Denson

went outside with her sons, leaving the young girls, Crowell, and Joseph in the house.

While Jeshema was taking a shower, she heard Joseph and Crowell arguing about

Kyra’s treatment of Kamare. After hearing three “loud bangs,” Jeshema heard

Crowell screaming and crying for help and for someone to call 911 then she heard

another bang. Upon exiting the bathroom, Jeshema learned that Crowell and Kyra

had been shot and she saw “blood all over the floor and Crowell flat on her face”

between the living and dining room areas. /d. at 225-26. Kamare and Jeshema hid

2 Parice Joseph, Patrick Joseph, and Cordarius Joseph. Each will be referred to by

their first name.

under the bed and called 911 using Joseph’s phone. /d. at 225. Parice heard gunshots

as he sat on the front porch and saw Kyra run outside looking over her shoulder as

Joseph followed her out of the front door. Jd. at 225. Parice saw Joseph with a gun

in his hand. Returning inside for the keys to Crowell’s car, Joseph re-exited the house

and drove off in Crowell’s car as Kyra lay dying on the front walkway. Both Crowell

and Kyra suffered multiple gunshot wounds to their bodies and heads. Crowell died

at the scene and Kyra died at the hospital a couple of hours later. Jd. at 225-26. The

firearm used was never recovered. A few days later, Joseph was arrested and indicted

for the murders. The State gave timely notice it was seeking the death penalty and

listed the aggravators upon which it would rely. Jd. at 224-26.

On February 24, 2020, the jury found Joseph guilty of two counts of first-degree

murder.’ The State pressed for convictions on a premeditated murder theory alone,

not felony murder. The jury was so instructed and returned convictions finding

Joseph guilty of first-degree murder of Crowell and Kyra as charged in the

indictment. Jd. at 226. Two days later, the jury convicted Joseph of possessing a

firearm by a convicted felon. On the same day, the penalty phase was conducted with

the Florida Supreme Court finding:

The State presented two witnesses—Joseph's thenprobation officer and a latent print examiner. Through

these witnesses, the State introduced evidence of Joseph's

prior [December 14, 2014] conviction for battery on a child.

The defense called 15 witnesses, most of whom were lay

witnesses.

3 The count of Felon in Possession of a Firearm was bifurcated and after trial, Joseph

was adjudicated on that charge as well.

On February 26, 2020, the jury rendered unanimous

verdicts recommending a penalty of death on both counts.

of first-degree murder with a firearm, determining the

aggravating factors outweighed the mitigating

circumstances. The jury found that the State had

established beyond a reasonable doubt the existence of the

following aggravating factors: (1) Joseph was previously

convicted of a felony and was on felony probation; (2)

Joseph was previously convicted of another capital felony

or a felony involving the use or threat of violence to another

person: (3) the first-degree murder was especially heinous,

atrocious, or cruel (HAC); and (4) the first-degree murder

was committed in a cold, calculated, and premeditated

(CCP) manner. As to Kyra, the jury also found a fifth

aggravator—the victim was a person less than 12 years of

age. The jury found no mitigating circumstances.

A Spencer hearing was held on October 16, 2020, and

sentencing occurred on November 19, 2020. The trial court

followed the jury's recommendation and sentenced Joseph

to death. The trial court found four aggravating factors

that applied to both counts: (1) Joseph was previously

convicted of a felony and under sentence of imprisonment

or on felony probation (moderate weight); (2) Joseph was

previously convicted of another capital felony or a felony

involving the use or threat of violence (great weight); (3)

the first-degree murder was especially heinous, atrocious,

or cruel (great weight); and (4) the first-degree murder was

committed in a cold, calculated, and premeditated manner

(great weight). The trial court found an additional

aggravator for the charge related to Kyra—the victim of

the first-degree murder was a person less than 12 years of

age (great weight).

The trial court considered and found as proven one of the

three statutory mitigators proffered by Joseph—Joseph

had no significant history of prior criminal activity (little

weight). The trial court further found seven nonstatutory

mitigators: (1) Joseph's family background (little weight);

(2) Joseph was a good employee with an excellent work

ethic as well as a talented football player who exhibited

this work ethic on and off the field (little weight); (8) Joseph

was a caring and attentive parent (moderate weight); (4)

Joseph had the support of his family (little weight); (5)

Joseph regularly attended church and was a devout

Christian (little weight); (6) Joseph suffered from a

delusional disorder of a persecutory type (little weight);

and (7) Joseph had a low IQ (little weight).

Joseph, 336 So. 3d at 226-27 (footnote omitted).

On direct appeal, Joseph raised sixteen claims. Pertinent here, the Florida

Supreme Court identified the claims as: “(1) the trial court's denial of a motion to

exclude witness testimony. . . (7) the constitutionality of Florida's death penalty

scheme in light of this Court's decision in Lawrence v. State, 308 So. 3d 544 (Fla.

2020)... (12) the constitutionality of Florida's death penalty statute. . . .” Joseph,

336 So. 3d at 227. With respect to Joseph’s demand for a proportionality review and

assertion that the lack of a proportionality review and the increase in the number of

aggravating factors included in section 921.141(6), Fla. Stat. (2018), Florida’s capital

sentencing was unconstitutional, the Florida Supreme Court decided:

We do not further address Claims 8 and 12 because we

have repeatedly rejected these arguments. See Bush vy.

State, 295 So. 3d 179, 214 (Fla. 2020) (concluding that the

defendant was not entitled to relief on his claim that

Florida's death penalty statute is unconstitutional because

it does not sufficiently narrow the class of individuals

eligible to receive the death penalty); Newberry v. State,

288 So. 3d 1040, 1047 (Fla. 2019) (citing Rogers v. State,

285 So. 3d 872, 878-79 (Fla. 2019)); see also Rogers, 285 So.

3d at 886 (holding that “the sufficiency and weight of the

ageravating factors and the final recommendation of

death” are not elements and “are not subject to the beyond

a reasonable doubt standard of proof’). Further, as to

Claims 7 and 11, we do not review the proportionality of

Joseph's sentence of death. See Lawrence v. State, 308 So.

3d 544, 551-52 (Fla. 2020) (receding from the judge-made

requirement to review the comparative proportionality of

death sentences).

Joseph, 336 So. 3d at 227, FN.5 (emphasis supplied).

In his first claim on direct appeal, Joseph asserted it was error to permit the

State to call a firearms expert who had reviewed the shell casing found at the scene

and delivered a report on the day before trial. The report stated that all of the casings

came from the same unknown firearm. The direct appeal court found:

The first day of jury selection, Joseph filed a motion to

exclude, specifically seeking to exclude Felix from

testifying because of the State's discovery violation and

resulting prejudice to him. During jury selection, Joseph

brought the motion to the trial court's attention, arguing

that a Richardson hearing needed to be held and that he

was prejudiced by the late discovery. Joseph moved for the

appointment of a firearms expert, and the trial court

granted Joseph's motion. Joseph also deposed Felix during

this time. After the jury had been sworn but before opening

statements, the trial court held a hearing on Joseph's

motion to exclude.

Joseph, 336 So. 3d at 228. The record shows that after hours on February 12, 2020,

during trial preparations, the prosecutor discovered he had not received a firearms

report and that the lead detective had failed to send the casings to the lab for testing.

That oversight was remedied first thing on February 13, 2020, and a report was

delivered to the defense the same day stating all of the casings came from the same

unknow firearm. Joseph, 336 So. 3d at 229. On February 14, 2020, Joseph moved

for the appointment of a firearms expert and noted the late disclosure of discovery.

Joseph did not press for a Richardson hearing when offered the opportunity later that

day, but noted he had nothing to discuss because the court had authorized the

4 Richardson v. State, 246 So. 2d 771 (Fla. 1971) (announcing standard for reviewing

claims of discovery violations).

appointment of a defense firearms expert.

On January 20, 2020, after the State had presented some witnesses, the

defense announced it had deposed the State’s firearms expert and had consulted with

the defense expert who suggested that a tool marking expert was needed, but the

defense was unable to find such an expert. In the Richardson hearing that followed,

Joseph complained that given the late disclosure by the State, a discovery violation

should be found, and that the State’s expert be excluded as the defense was prejudiced

in its trial preparation. The trial court found an inadvertent violation, but that no

prejudice resulted. On appeal, the Florida Supreme Court found:

Here, the record shows that the trial court conducted an

adequate Richardson inquiry. The trial court first

determined that the State's disclosure of its firearms

expert and firearms report was a discovery violation due to

the State not disclosing this information until a day before

trial. The trial court next determined that the State's

discovery violation was inadvertent, and the record

supports this finding. The State told the trial court that the

cartridge casings had been in evidence since the day of the

murders, but after going through the evidence with

Detective Creelman on the eve of trial, it realized there was

no firearms report because Detective Creelman forgot to

send the casings to the lab for analysis. The State had the

casings analyzed the same day it discovered there was no

firearms report and then filed a supplemental list of

witnesses and Felix's firearms report later that day. There

is no record evidence that the State willfully delayed

analyzing the cartridge casings and generating a firearms

report. The trial court then said it needed to determine

whether the State's violation was trivial or substantial, but

it did not make an explicit finding.

The trial court finally determined that the State's

discovery violation did not have a prejudicial effect on

Joseph's trial preparation. “Prejudice in this context means

procedural prejudice significantly affecting the opposing

party's preparation for trial.” McDuffie, 970 So. 2d at 321.

“(T]he defense is procedurally prejudiced if there is a

reasonable possibility that the defendant's trial

preparation or strategy would have been materially

different had the violation not occurred.” State v. Schopp,

653 So. 2d 1016, 1020 (Fla. 1995). “Trial preparation or

strategy should be considered materially different if it

reasonably could have benefited the defendant.” Jd A

court's analysis of procedural prejudice “considers how the

defense might have responded had it known about the

undisclosed piece of evidence and contemplates the

possibility that the defense could have acted to counter the

harmful effects of the discovery violation.” Scipio v. State,

928 So. 2d 1138, 1149 (Fla. 2006).

The trial court properly ruled that the State's discovery

violation did not procedurally prejudice Joseph. The trial

court first turned to the State and asked why its discovery

violation would not prejudice Joseph. Once the State

provided its reasons—that the cartridge casings had been

in evidence since the crimes and that Felix's testimony

would merely corroborate other expected testimony—the

trial court then asked the defense how Felix's testimony

impacted its ability to prepare for trial. Defense counsel

said the defense would have retained its own firearms

expert who could testify that the cartridge casings did not

come from the same firearm. However, even if the defense

had been able to retain their own expert to contradict

Felix's testimony, there is no reasonable possibility that

the defendant's trial preparation or strategy would have

been materially different. Felix's testimony would not have

changed the defense's theory of the case, which was that

Joseph was not the shooter. Felix's testimony did not

involve the identity of the shooter; it was merely

corroborative of other witness testimony. Therefore,

Joseph's theory that he was not the shooter would be just

as plausible after Felix's testimony as it was prior to its

admission into evidence. See Cox v. State, 819 So. 2d 705,

718 (Fla. 2002) (concluding that the State's discovery

violation did not materially hinder the defendant's trial

preparation where the defense's theory of the case was just

as viable after the challenged testimony as it was prior to

the introduction of the testimony). There was no evidence

suggesting there was more than one gun or more than one

shooter involved in these crimes. The trial court also gave

defense counsel time to find a firearms expert and an

opportunity to depose Felix. Further, even if the trial court

erroneously denied Joseph's motion to exclude, any error

was harmless. See State v. DiGuilio, 491 So. 2d 1129, 1135

(Fla. 1986). Accordingly, we deny relief on this claim.

Joseph, 336 So. 3d at 231-382.

Joseph seeks certiorari review of that decision.

REASONS FOR DENYING THE WRIT

ISSUE I

CERTIORARI REVIEW SHOULD BE DENIED

BECAUSE (1) THE ISSUE OF ALLEGED

ARBITRARINESS OF FLORIDA'S CAPITAL

SENTENCING WAS NOT RAISED BEFORE THE

FLORIDA SUPREME COURT; (2) FLORIDA’S CAPITAL

SENTENCING DOES NOT VIOLATE THE EIGHTH

AMENDMENT AS IT NARROWS THE CLASS OF

DEFENDANTS ELIGIBLE FOR THE DEATH PENALTY;

AND (3) THE FLORIDA SUPREME COURT'S OPINION

DOES NOT CONFLICT WITH ANY DECISION OF THIS

COURT, A FEDERAL CIRCUIT COURT OR STATE

SUPREME COURT (Restated)

Joseph asserts that this Court should find Florida’s death penalty statute

unconstitutional “because the arbitrariness, capriciousness, imprecision, and

unconstitutionality of the death penalty and its application is long and wellestablished.” (Pet. At 9). Neither the claim of constitutional infirmity nor the

arguments presented here were raised before the Florida Supreme Court. As such,

this Court should deny certiorari. Moreover, Florida’s capital sentencing scheme has

been found constitutional and the instant decision of the Florida Supreme Court does

not conflict with a case from this Court or with a case from a federal circuit court of

10

appeals or state supreme court. Also, Joseph has not raised an important and

unsettled question of federal law. Joseph has failed to present a “compelling” reason

for this Court to review his case. Certiorari should be denied.

On direct appeal, Joseph asserted that Florida’s capital sentencing under

section 921.141, Fla. Stat. was unconstitutional because it did not substantially

narrow the class of defendants subject to the death penalty. For support he argued

that when the death penalty was reinstated following Furman v. Georgia, 408 U.S.

238 (1972) the statute contained eight enumerated aggravators and now it contains

sixteen. He noted in his initial brief that the increase expanded, not narrowed, the

class eligible for the death penalty and that it was the required narrowing that

implemented the Eighth Amendment’s “demand that the death penalty be free from

‘arbitrary or irrational imposition.” (St. Appx A-110). Without elucidation, Joseph

asserted that section 921.141, “falls afoul of the Eighth Amendment when it fails to

provide objective criteria that limits the application of the death penalty to the worst

of the worst, i.e., the most aggravated and least mitigated of murders. Furman... .”

(St. Appx. A-110). He maintained that the added aggravators violate the Eighth

Amendment as the statute “fails to sufficiently narrow the class of cases eligible for

consideration of imposition of the death penalty.” (St. Appx. A-111).

In the instant petition, Joseph focuses on allegations of “the arbitrariness,

capriciousness, imprecision, and unconstitutionality of the death penalty” arising

from the decision not to apply or seek the death penalty in cases where Intellectual

11

Disability,5 mental health evidence, plea agreements, or other considerations

peculiar to those defendants* who may have killed more victims than Joseph.

Because of the unique situations noted in those cases, they have no bearing on the

application of the death penalty in Joseph’s case nor do they further his Eighth

Amendment argument here. The two remaining cases cited by Joseph, both Nikolas

Cruz (“Cruz”) and Dayonte Resiles (“Resiles”) are out of Broward County, Florida.

Nikolas Cruz has yet to have his penalty phase completed. See State v. Nikolas Cruz,

case no. 062018CF001958A (Fla. Cir. Ct. 2022). Regarding Dayonte Resiles, the trial

court imposed a life sentence following the State’s post-verdict waiver of its intent to

5 On remand following Hal/ v. Florida, 572 U.S. 701 (2014), the Florida Supreme

Court found that Hall had demonstrated Intellectual Disability, thus making him

ineligible for the death penalty and remanding for a life sentence. See Hall v. State,

201 So. 3d 628, 638 (Fla. 2016).

6 Zacarias Moussaoui’s life sentence, as Joseph notes, was decided by a jury and as

such should not enter into the Eighth Amendment analysis here as it would be

improper to delve into the jury’s deliberations. Jared Loughner pled guilty to the

murder and attempted murder charges. See United States Department of Justice

News Release dated August 7, 2012) (stating “Jared Lee Loughner, 23, of Tucson,

Ariz., pleaded guilty today in federal district court to charges stemming from the

January 8, 2011 shooting outside a supermarket that killed six people and wounded

13 others. Under the terms of the plea agreement, Loughner will be sentenced to life

in prison with no eligibility for parole.”). Like Moussaoui, it was a jury decision that

controlled the sentence imposed upon James Holmes. There, according to The Denver

Post, August 7, 2015, Jordan Steffen and Noelle Phillips, Holmes’ jury did not

recommend death unanimously, thus, under Colorado law, only a life sentence was

available. https://www.denverpost.com/2015/08/07/aurora-theater-shooting-jurorone-juror-refused-death-penalty. See also Colo. Rev. Stat. Ann. § 18-1.3-1201 “(d) If

the jury's verdict is not unanimous, the jury shall be discharged, and the court shall

sentence the defendant to life imprisonment. “With respect to Dzhokhar Tsarnaev’s

conviction and sentence, this Court reinstated the death penalty sentences imposed.

See United States v. Tsarnaev, 142 S. Ct. 1024, 1041 (2022).

12

seek death.” Joseph offers no analysis beyond pointing out the defendant received a

life sentence for one count of murder. The pith of Joseph’s argument rests on the

“evolving standards of decency” and legislative or executive decisions in removing

death as a possible penalty. Those arguments were “not pressed nor passed upon”

in state court and as such this Court should refuse to consider his claims not raised

or addressed below. Yee v. City of Escondido, Cal, 503 U.S. 519, 533 (1992); Winois

v. Gates, 462 U.S. 213, 218-220 (1983).

Even if this Court considers this unpreserved claim, certiorari should be denied

as Florida’s statute does not run afoul of the Eighth Amendment. The ruling below

does not conflict with a decision of this Court or a federal circuit court or another

state supreme court. Likewise, it does not address an important or unsettled question

of federal law. See Rule 10, Rules of the Supreme Court of the United States. This

Court has recognized that cases which have not developed conflicts between federal

or state courts or presented important, unsettled questions of federal law usually do

not deserve certiorari review. ockford Life Insurance Co. v. Illinois Department of

7 On March 18, 2022, the jury convicted Resiles of first-degree murder. See State v.

Dayonte Resiles, case no. 062014CF012657A (Fla. 17% Cir. Ct. 2022). Following the

ordered disclosure of the defense mental health expert’s data from the evaluation of

Resiles, on April 29, 2022, the State waived the death penalty. /d.

8 Of course, States have considerable discretion to set policy and enact and enforce

legislation. See FERC v. Mississippi, 456 U.S. 742, 761 (1982)(“Indeed, having the

power to make decisions and to set policy is what gives the State its sovereign

nature.”)(citing Bates v. State Bar of Arizona, 433 U.S. 350, 360, 97 S. Ct. 2691, 2697,

53 L.Ed.2d 810 (1977))

13

Revenue, 482 U.S. 182, 184, n.3 (1987). The law is well-settled that this Court does

not grant certiorari for the purpose of reviewing evidence and/or discussing specific

facts. United States v. Johnston, 268 U.S. 220 (1925) (denying certiorari to review

evidence or discuss specific facts). Further, this Court has rejected requests to

reassess or re-weigh factual disputes. Page v. Arkansas Natural Gas Corp., 286 U.S.

269 (1932) (rejecting request to review fact questions); General Talking Pictures

Corp. v. Western Electric Co., 304 U.S. 175, 178 (1924) (same).

This Court has reviewed Florida’s capital sentencing under Eighth

Amendment challenges and has found section 921.141 constitutional as it requires

the sentencer to weigh aggravating and mitigating factors against each other and to

focus on the “circumstances of the crime and the character of the individual

defendant.” Proffitt v. Florida, 428 U.S. 242, 251-52 (1976). See also, Spaziano v.

Florida, 468 U.S. 447, 463 (1984), overruled on other grounds by Hurst v. Florida, 577

U.S. 92 (2016) (finding Florida’s capital sentencing unconstitutional under Sixth

Amendment challenge). Moreover, a capital sentence remains constitutional despite

imperfections in the criminal justice system. Kansas v. Marsh, 548 U.S. 163, 181

(2006).

To the extent that Joseph claims he was sentenced under a statute that is

arbitrary and capricious (P. at 9), the argument fails. An aggravating factor must

afford “a meaningful basis for distinguishing the few cases in which [the death

penalty] is imposed from the many cases in which it is not.” Godfrey v. Georgia, 446

U.S. 420, 427 (1994) (quoting Furman v. Georgia, 408 U.S. 238 at 313 (1972).

14

Aggravators “must genuinely narrow the class of persons eligible for the death

penalty and must reasonably justify the imposition of a more severe sentence on the

defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S.

862, 877 (1983).

As noted above, the jury and trial court found four aggravators applicable to

the death of Crowell and Kyra: (1) previously convicted of and felony and under

sentence of imprisonment or on felony probation; (2) previously convicted of another

capital felony or a felony involving the use or threat of violence; (3) murder was

especially heinous, atrocious, or cruel (“HAC”); and (4) murder was committed in a

cold, calculated, and premeditated manner. An additional aggravator, victim less

than twelve, was found to apply to Kyra’s death. These are longstanding aggravating

factors as explained below and there can be no dispute that they narrow the class of

defendants eligible for the death penalty.

Since 1973, section 921.141 contained the aggravators of: (a) murder

committed by a person under sentence of imprisonment; (b) defendant previously

convicted of another capital felony or of a felony involving the use or threat of violence:

and (h) felony was especially heinous, atrocious, or cruel. See section 191.141(5)(a)-

(b) and (h). Fla. Stat. (1973).9 In 1979, the cold, calculated and premeditated (“CCP”)

aggravator was added to the statute. See section 921.141, Fla. Stat. (1979). In 1996,

the aggravator of “victim of the capital felony was a person less than twelve” was

9 Under the current version of the statute, aggravating factors are found under

section 921.141(6), Fla. Stat (2019).

15

added. See section 921.141(5)(1), Fla. Stat. (1997) and the term “under sentence of

imprisonment” was amended to include those on felony probation. See Merck v. State,

763 So. 2d 295, 299 (Fla. 2000). Each of the aggravators focuses on the defendant’s

criminal] history and manner in committing the crime or the particular vulnerability

and/or suffering of the victim. These aggravating factors differentiate the death

eligible murders from other killings and narrow the class of defendants subject to the

death penalty.

The “under sentence of imprisonment”! and prior violent felony aggravators

are long-standing sentencing factors addressed to the defendant’s criminal history

and recognized as narrowing the class. Such aggravators distinguish recidivist and

violent defendants eligible for capital sentencing from those who have committed

petty non-violent crimes prior to the capital murder. Joseph has not explained how

the application of these aggravators render Florida’s death penalty unconstitutional.

For HAC, the jury instruction gives direction and narrows the class of

defendants eligible for death. The standard jury instruction provides:

The crime for which the defendant is to be sentenced was

especially heinous, atrocious or cruel. “Heinous” means

extremely wicked or shockingly evil. “Atrocious” means

outrageously wicked and vile. “Cruel” means designed to

inflict a high degree of pain with utter indifference to, or

even enjoyment of, the suffering of, the suffering of others.

The kind of crime intended to be included as heinous,

atrocious, or cruel is one accompanied by additional acts

10 Felony probation was added in 1996 and the Florida Supreme Court defined what

that term meant under state law. See Merck. This Court leaves to the states to be

the final arbiters of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(noting “it is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.”).

16

that show the crime was conscienceless or pitiless and was

unnecessarily torturous to the victim.

Fla. Std. Jury Instr. 7.11 (Crim.). As the Florida Supreme Court explained in Joseph:

The HAC aggravator applies to murders that are both

“conscienceless or pitiless and unnecessarily torturous to

the victim. .. . The focus is “on the means and manner in

which death is inflicted and the immediate circumstances

surrounding the death.” ... Gunshot murders can qualify

as HAC if the events preceding the death “cause the victim

fear, emotional strain, and terror.” . . . To support HAC,

“the evidence must show that the victim was conscious and

aware of impending death.” . . . “However, the victim's

perception of imminent death need only last seconds for

this aggravator to apply.”

Joseph, 336 So. 3d at 236-37 (citations omitted). Clearly, this is not arbitrary or

vague; it narrows the class of death eligible defendants by looking at the manner the

crime was committed and the pain the victim suffered.

For CCP, the State must establish beyond a reasonable doubt that:

(1) the killing must have been the product of cool and calm

reflection and not an act prompted by emotional frenzy,

panic, or a fit of rage (cold); and (2) the defendant must

have had a careful plan or prearranged design to

commit murder before the fatal incident (calculated);

and (8) the defendant must have exhibited heightened

premeditation (premeditated); and (4) there must have

been no pretense of moral or legal justification.

Lynch v. State, 841 So. 2d 362, 371 (Fla. 2003). The current CCP instruction does

not run afoul of the dictates in Espinosa v. Florida, 505 U.S. 1079 (1992). These

factors circumscribe the aggravator and narrows the class of premeditated murder

defendants eligible for death. Likewise, the victim under twelve is a limiting factor.

Under Florida law, these factors must be proven beyond a reasonable doubt

17

and be found by both the jury and trial court before a death sentence may be imposed.

These are limiting sentencing factors and are specific to the defendant, such as his

prior violent criminal history, specific to the manner the crime was committed, such

as HAC and CCP, and specific to the victim the defendant chose to kill, such as the

young age of his victim. The fact that other aggravators have been added to section

921.141 since 1972, does not render the statute unconstitutional overall or as applied

to Joseph. Those other aggravators too, narrow the eligible class of defendants.

In addition to the statute being found constitutional, Proffitt, the HAC

aggravator as instructed and applied in Florida has been found constitutional.

“Florida has sufficiently limited its ‘heinous, atrocious, or cruel’ aggravating

circumstance to pass constitutional scrutiny.” Scott v. Singletary, 38 F.3d 1547, 1554

(11th Cir. 1994) (quotation marks and citation omitted), abrogated on other grounds,

Jones v. CDCP Warden, 815 F.3d 689 (11th Cir. 2016). The CCP aggravator and

instruction given in Joseph’s case has not been found unconstitutional and Joseph

has not pointed to a case to the contrary. Florida’s statute is constitutional, and

Joseph has failed to identify any case from this Court, a federal circuit court, or

another state supreme court which is in conflict with Joseph.

Turning to Joseph’s unpreserved claims that under the evolving standards of

decency, and the fact that fewer states have death penalty statutes in 2022 (twentyseven) than had in 1976 (thirty-five) he has not shown entitlement to relief. As set

forth above, the Florida statute narrows the class of defendants eligible for the death

penalty and does so in a constitutional manner. Moreover, the fact that fewer

18

defendants may have been sentenced to death and/or executed, does not establish

arbitrariness. Instead, it speaks to a more selective, narrow application of the death

penalty. Joseph’s selection of high-profile cases (P. at 8-11) is misleading as it

contains cases where the penalty phase has not been included. Under this Court’s

jurisprudence, as long as the state capital sentencing system: “(1) rationally

narrowls] the class of death-eligible defendants; and (2) permit[s] a jury to render a

reasoned, individualized sentencing determination based on a death-eligible

defendant's record, personal characteristics, and the circumstances of his crime” “a

State enjoys a range of discretion in imposing the death penalty, including the

manner in which aggravating and mitigating circumstances are to be weighed.”

Kansas v. Marsh, 548 US. at 174. As such, the fact that a 9/11 conspirator or mass

shooters who may have had mitigation or other factors supporting life sentences does

not establish that Florida’s death penalty statue or its application is unconstitutional

or in conflict with this or other courts identified in Rule 10. Here, Joseph received

individualized sentencing based on a constitutional statute. Certiorari must be

denied.

ISSUE II

CERTIORARI SHOULD BE DENIED WHERE

PETITIONER FAILED TO RAISE A FEDERAL

CONSTITUTIONAL CLAIM BELOW AND THE

FLORIDA SUPREME COURT RESOLVED THE

DISCOVERY ISSUE BASED ON STATE LAW AND

THAT DECISION DOES NOT CONFLICT WITH A CASE

FROM THIS COURT OR ANY OTHER FEDERAL

CIRCUIT OR STATE SUPREME COURT (Restated)

It is Joseph’s position that the Florida Supreme Court violated his “due process

19

and equal protection rights, confrontation rights, and compulsory process rights” (P.

_at 13-14) when it affirmed the trial court’s denial of Joseph’s motion to exclude a state

expert after conducting a hearing pursuant to Richardson v. State, 246 So. 2d 771

(Fla. 1971) due to the late disclosure of a ballistic report. Not only were these

constitutional claims not presented below, but the Florida Supreme Court’s

resolution of the discovery issue rested on state law. Furthermore, that resolution

does not conflict with a case from this Court, a federal circuit court, or other state

supreme court and it does not raise an important, unsettled question of federal law.

Certiorari should be denied.

The test ordinarily applied for determining whether a claim arises under

federal law is whether a federal question appears on the face of the plaintiff's wellpleaded complaint. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908). “As a

general rule, a case arises under federal law only if it is federal law that creates the

cause of action.” Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996) (citing

Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8-10 (1983)). In

Duncan v. Henry, 513 U.S. 364, 365-66 (1995), this Court concluded that in order to

give state courts meaningful opportunity to correct alleged violations of prisoners’

federal rights, these courts “must surely be alerted to the fact that the prisoners are

asserting claims under the United States Constitution.” This Court found that

merely arguing that a state evidentiary ruling was erroneous and a “miscarriage of

justice” was insufficient to put the state court on notice that a federal claim was being

asserted. Jd. Mere similarity of claims is insufficient to satisfy the requirement of

20

exhaustion. Jd. See also Picard v. Connor, 404 U.S. 270, 275 (1971), (reasoning that

exhaustion of state remedies requires petitioners “fairly presenIt]” federal claims to

the state courts in order to give those courts the “opportunity to pass upon and

correct’ alleged violations of its prisoners' federal rights” (some internal quotation

marks omitted). “If a habeas petitioner wishes to claim that an evidentiary ruling at

a state court trial denied him the due process of law guaranteed by the Fourteenth

Amendment, he must say so, not only in federal court, but in state court.” Duncan,

518 at 566 (citing Anderson v. Harless, 459 U.S. 4 (1982).

In Joseph’s direct appeal initial brief, he argued that the trial court erred in

denying his motion to exclude the State’s firearms expert and that the error should

be reversed as it was a “miscarriage of justice” and the “Richardson error’ deprived

Joseph of a “fair trial and substantial, meaningful due process.” (St. Appx. A-37, A-

40). Joseph also asserted that he was cut off on relevancy ground from delving into

the existence of another firearms database known as National Integrated Ballistic

Information Network. (St. Appx. A-40). Joseph failed to cite to any federal cases or

reference a federal constitutional amendment nor did he assert the denial of

compulsory process or confrontation clause rights. His argument rested on

Richardson and the state harmless error standard of State v. DiGuilio, 491 So. 2d

1121 (1984). As will be discussed below, Richardson focuses on the procedural

prejudice a party may suffer in its defense preparation due to a discovery violation.

Joseph did not alert the state courts that he was claiming any federal constitutional

violation. The pith of his argument was that a discovery violation occurred and that

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