Opposition Brief — Norman Blake McKenzie, Petitioner v. Florida

CASE NO. 22-5088

IN THE SUPREME COURT OF THE UNITED STATES

NORMAN BLAKE MCKENZIE,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

DORIS MEACHAM

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399

Telephone: (850) 414-3300

CapApp@myfloridalegal.com

Carolyn.Snurkowski@myfloridalegal.com

CAPITAL CASE

QUESTION PRESENTED

In Kansas v. Carr, this Court expressed the view that “lilt would mean nothing

... to tell the jury that” certain “value call[s]”—like whether aggravators outweigh

mitigators and whether the defendant deserves mercy—must be found “beyond a

reasonable doubt.” 136 S. Ct. 633, 642 (2016). Consistent with that view, Florida law

does not require such determinations to be made beyond a reasonable doubt.

Petitioner Norman Blake McKenzie was convicted and sentenced to death for

the first-degree murders of Randy Wayne Peacock and Charles Frank Johnston in St.

Johns County. Originally convicted and sentenced to death in 2007, McKenzie

received a new penalty phase in light of Hurst v. State, 202 So.3d 40 (Fla.

2016), receded from in part by State v. Poole, 297 So.3d 487 (Fla. 2020). McKenzie's

second penalty phase was tried before a new jury in August 2019. The penalty-phase

jury unanimously found the existence of an aggravating factor beyond a reasonable

doubt; it also unanimously determined that the aggravating factors were sufficient to

warrant death, that those factors outweighed the mitigating circumstances, and that

Petitioner should be sentenced to death. The trial judge agreed and sentenced

Petitioner to death. In February 2020, McKenzie was resentenced to death for both

murders. McKenzie v. State, 333 So.3d 1098, 1099 (Fla. 2022).

Petitioner seeks certiorari review of the Florida Supreme Court's rejection of

his argument that the weighing and sufficiency selection criteria in Florida's capital

system are subject to the beyond a reasonable doubt standard.

The question presented is: Whether Petitioner's death sentences violate the

right to a jury trial and due process under the Sixth and Fourteenth Amendments to

the United States Constitution because the weighing of aggravators and mitigators

is not considered an element of a higher offense and not subject to the reasonable

doubt standard under Florida law.

PARTIES TO THE PROCEEDINGS

Petitioner, Norman Blake McKenzie, was the Movant in the trial court and the

Appellant in the Florida Supreme Court.

Respondent, State of Florida, was the Respondent in the trial court and the

Appellee in the Florida Supreme Court.

NOTICE OF RELATED CASES

Pursuant to this Court's Rule 14. 1(b)(iii), these are related cases:

Original Guilt and Penalty Phase Trial:

Circuit Court of St. Johns County, Florida

State of Florida v. Norman Blake McKenzie, 1991-CF-2899

Judgment Entered: October 19, 2007

Direct Appeal:

Florida Supreme Court, Case No. SC07-2101

McKenzie v. State, 29 So.3d 272 (Fla. 2010)

Judgment Entered: January 7, 2010; rehearing denied February 15, 2010

United States Supreme Court, Case No.09—-10878

McKenzie v. Florida, 562 U.S. 854 (2010)

Judgment Entered: October 4, 2010

Initial Post-conviction Proceedings:

Circuit Court of St. Johns County, Florida

State of Florida v. Norman Blake McKenzie, 1991-CF-2899

Judgment Entered: March 8, 2012; on reh’g (April 18, 2012)

Florida Supreme Court, Case No. SC12-986

McKenzie v. State, 153 So.3d 867 (Fla. 2014), on reh'g (Dec. 11, 2014)

Judgment entered April 17, 2014; rehearing granted in part and denied in part

December 11, 2014; disposition, affirmed December 14, 2014

State Habeas Proceedings

Florida Supreme Court, Case No. SC12-2349

McKenzie v. Cannon, 153 So.3d 867 (Fla. 2014), on reh'g (Dec. 11, 2014)

Judgment entered April 17, 2014; rehearing granted in part and denied in part

December 11, 2014; disposition, denied December 14, 2014

Federal Habeas Corpus

United States District Court, Middle District of Florida, Jacksonville Division

McKenzie v. Sec’y, Dept. of Corr., No. 3:15-cv-47-J-34JRK

Administratively closed pending exhaustion of claims in state court

Reopened for status report due July 15, 2022

Successive State Postconviction Motion

Circuit Court of St. Johns County, Florida

State of Florida v. Norman Blake McKenzie, 1991-CF-2899

Judgment Entered: June 19, 2017 (granting a retrial on sentencing)

Resentencing Trial

Circuit Court of St. Johns County, Florida

State of Florida v. Norman Blake McKenzie, 1991-CF-2899

Judgment Entered: February 14, 2020

Florida Supreme Court, Case No. SC20-243

McKenzie v. State, 333 So.3d 1098 (Fla. 2022)

Judgment entered February 10, 2022

iv

TABLE OF CONTENTS

CONTENTS

QUESTION PRESENTED ......0........cccccceccceceeeeeeceeeseenereeeseeeeeseccceeeeseseceaeeeeseeessacnseeessnnesseeeeeeuaness i

PARTIES TO THE PROCEEDING ............ecccccceeeseceeeeecneceeeseceeneeseeseeaeeseeeseseeneeseseeeteceeeeeesaes ii

NOTICE OF RELATED CASES 00000... eee ceececccssesneneeeceeceeseessaceeseseeseeeeceeresenaceeseeseseeneeesneass iil

TABLE OF CONTENTS ..0........cccecssssecceessceeesecceesesteceeceseneeeeseceeeeceseeseuaeeseceecsseeesecstesseeseeeeaes Vv

TABLE OF AUTHORITIES ..............cccceececcceesseceeceesesceeeeessceceseessaceecesessaneeeeseeeeeeeseeseeteesneeeeeas vi

OPINION BELOW ....0........cccccccccccccceeeeeeseeeeeeesaeeeeeseceseeeeaaeeeesnaaaeseesesnageeseeseseegaeneceeeanessuneeeeseeeees 1

JURISDICTION 00... eee eecccscceeeeesecceeeecesenececeeesaneeesesseaeeesssaaeevesseseeeeseessceeeesseseueaasesseaeseneaseeseeate 1

CONSTITUTIONAL PROVISIONS INVOLVED... eeeeccecceeeesseneeeeeeeeaceeceesetacertaeeeteseeees 1

STATEMENT ....0o....eeececcccceceeceeseceececeesesneeceesescaecescneaesessaaasessenaasaesesecuaneeseeseecuceeeeeseeeecteeeeeeaees 1

FACTS AND PROCEDURAL BACKGROUND ....0...o.cceceecsseceeeeceeeeeeenenseeeeeeeeeeneeeeetseeenneeeeeeanes 4

REASONS FOR DENYING THE WRIT ..000.....ccceceecccceeeceneceeesecneeeeseeseeeeseeeesessaaeeesseeenenneesess 11

I. The Decision Below Does Not Conflict with This Court’s Precedents..................00006 11

II. The Decision Below Is Correct.................ecccceeseecceesesseeeeecenssceeceseesenceeeeseeseneeesseneesenseeess 13

CONCLUSION 000... ccecccccccceceeeecceceeeeseesesceeceseneceeeeesaaeeeeeeeeseeeaadeeeeenencgeceeseseageaeeeseenaeesieeeeetsaess 21

CERTIFICATE OF SERVICE ..0........eeeccccecceccneeeeesenneeeeeeneeeeseneneceesesesaneaeeseenssceseesesseaesseeeseesageees 1

TABLE OF AUTHORITIES

Page(s)

CASES

Alleyne v. United States,

B70 U.S. 99 (2018) oo. eceececcecsesesccescsecsssscessseecsesscecsceecsesessescsesesseseeaesesssessaseccecsess 11, 16

Apprendi v. New Jersey,

S10 OSI 0000) 11, 12

Bright v. Florida,

141 S. Ct 1697 (2021) oo... eee ccccccscessesscsscsecssesscssesscsessessesscssessesseseeseesseeeessatsreeess 20

Clemons v. Mississippi,

AQA U.S. 738 (1990) oo... ceecccccceesscssessesecssssesceccssssessesassessseesecaseesscceceseessceeeseceveusevees 20

Craft v. Florida,

142 S. Ct. 490 (2021) ooo cece ceececccesscccsesscccesssececseccsseecesseecessssecesevsneceeseeseeseneeeess 20

Cratt v. State,

312 So.3d 45 (Fla. 2020) ........cccccccccccesssscssccscesecsesscesssscseceessessesseesteeeeeseaseeueecsecsesesseees 9

Craven v. Florida,

142 S. Ct. 199 (2021) ooo cece ceececcecessnccecssceessscceecsnececseceesaceseessaceeessseceeeveneeesererenes 20

Doty v. Florida,

142 S. Ct. 449 (2QOQD) oo eee eecsececeesscececesscecesnsecesseecssceevsseccecesaceeessneeereeersseeesaas 20

Eddings v. Oklahoma,

ABB U.S. 104 (1982) oo... eccccecccseccssssessesseessssscseseceesssessessssessseseeecsacecaesncsecseecaeserseseseaees 15

Foster v. State,

258 So.3d 1248 (Fla. 2018) ........cccccccesccscessccsesscessessecseeseseaeseeeeesscecsecseecsecessceueseesseess 10

Hurst v. Florida,

B77 U.S. 92 (2016) ooo. eecccccceeseecccssescccecsscceessceecescecesseecessecessssceerssaceeessteneerenees 2, 6, 13

Hurst v. State,

202 So.3d 40 (Fla. 2016) ..........cccccccccsscescesecoessecsecsecscsseeesesseseesneesessecsecssecseeseeseeseeess i, 2

In re Winship,

397 U.S. 858 (1970) oo. .eeecccesccceceesscececsesseceesccceeseceessceessncesesencersssneceessaaees 11, 17, 18

Kansas v. Carr,

136 S. Ct. 633 (2016) ......ccecceccccescsscescesesscsseresccssencsecsevscsesecrecseseestestsaecsaseecseaueasecsecasees i

Kansas v. Marsh,

B48 U.S. 163 (2006) oo... cccecscssseccssessessesscocscescceesecsecsesscnesssseseusessessacessecenseucausesasenss 18

McKenzie v. Florida,

BOQ U.S. 854 (2010) oo... ceseccececesscccesessesersceeeesseseseceesuseeessceusecnesecsesecsesscausecsscecasansevevas iii

McKenzie v. State,

29 So.3d 272 (Fla. 2010)... cecccceceesscceseescecesscccesseccessaceesareesssccecsnseeeeeeesees 1, 4, 5, 6

McKenzie v. State,

153 So.3d 867 (Fla. 2014) .........cccccccccsscssecssccscesessesscsessescsesseseeeesceecsacsesscetececeesevsnsevass iii

vi

McKenzie v. State,

333 So.3d 1098 (Fla. 2022)... cceccceccecscsssccccsseeseeessesseeseesseecseesueseeesenesseeseeees passim

McKenzie v. State,

2020 WL 5359504 (Fla. Sept. 1, 2020)... cceececsseseeeseseeeceeeseeseeeeanecneeseeeeeeseeessaeenses 9

McKinney v. Arizona,

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

Miller v. State,

AZ, So.3d 204 (Fla. 2010) .......ccccccscsssssssccsscsscscesessceseeeecseeeeseseeseseeaesecaessceeeeenersecseearssees 2

Newberry v. Florida,

141 S. Ct. 625 (2020) ooo. eceecccccscsceseesseessesseseccececeeecoessesseseeseeseeeeseeseeseesaeseesseesecesaeees 20

Newberry v. State,

288 So.3d 1040 (Fla. 2019) ......cccccccccssccesccesecsssesseseseceseasenceseeeaesaeeaeeaeeaeenaeeeeseessseasesees 9

Oregon v. Ice,

B55 U.S. 160 (2009) o.oo. .ececcssescsscsscssseceeenecsececessceceeeensessenseeaseassseaeeaaseaeeneseeseneeesecaes 20

Poole v. Florida,

141 S. Ct. 1051 (2021) ooo ceec cececesssseececccuceesssceccessneseesensseceseeesesceseneeeeseneneeeeeeerses 20

Proffitt v. Florida,

AQB U.S. 242 (1976) on. eececcccccscssssesssenssesseseescessesecceseseseeseeneacseeasseeeesenatsesaeaeeaseensarers 20

Randolph v. Florida,

142 S. Ct. 905 (2022) occ eceecccssssssccssscessccseseesecseceesecseceeseseeseeeasscneceaeeseaeeneseeeeeatarees 20

Ring v. Arizona,

536 U.S. 584 (2002) oo... cceccceceeesssssssesusscsasecscseceesssseseceseaeecssseeesenseeeeeeseeeseases 2, 13, 20

Rogers v. Florida,

141 S. Ct. 284 (2020) o.oo... eccccceccececscsesscesecececeecsessccececcecesssaseceecenenneaeaeneeseceseeseeeeneenens 20

Rogers v. State,

985 So.38d 872 (Fla. 2019).......ccccccessesescsccesccecscsscececssseeceeeaseceessseeessesenseseceeeseeeneeeeneeee? 9

Santiago-Gonzalez v. Florida,

141 S. Ct. 2828 (QOQD) once cecccecccscsscsscseesseecseesesscseseceesseeeseeseesessseeanseeesesaeeetseeseenens 20

Spencer v. State,

615 So. 2d 688 (Fla. 1993).......ccccccccsssecscsccccececssscccecesssececcessecensseseessesseeeeeeeeseaneeeeeeeaees 7

State v. Poole,

297 So.3d 487 (Fla. 2020) ..........cccccccccesccsscecscecscecssecsnecseeeeeeccesseseseanseneeseeasensons passim

Tuilaepa v. California,

B12 U.S. 967 (1994) occ cesesscssesseseeesecseeceseceesceaceeeeacereseseeaseeneetsceeeesaeeneseeseeenens 2,3

United States v. Gabrion,

719 F.3d 511 (6th Cir. 2013) 0... ecccccsesssececccssssceeeesseneecensseeesaeeeeeeesseseaceesenesanerers 19

Wright v. Florida,

142 S. Ct. 403 (2021) ooeeeecccccsccccscsscsseecesecseeseccesseseescsesasseeenseseeaeseeaeeaeeaseareeeereetseners 20

Wright v. State,

312 So0.3d 59 (Fla. 2021) .....cccccccessssscsscessessececeeecaeesceeseeseeseneaceaeseeaeeaeenesenseeessessesseeees 10

Zant v. Stephens,

ABZ U.S. 862 (1983) oo .eecececcsccsssssscsecsecseessesececesecseseesesecaseeeacaeeatacaeeaneaeeaeenseetsesereeecsass 3

vii

STATUTES

18 U.S.C. § 8553(a) oo ceccccccccccccscssssssessscesesssenesnseeceesssceseseseeseeeseseeseseaeeseeeseesceneaeeeeaeneees 19

QB U.S.C. § L257 oo ececcccsccscscscssssscesscesscacsesesesnceesssesesesesescseseseseseseseseeeseeeeeseeeseateneeeeaeans 1

Florida State Stat. § 921.141 oo... ccccccccceceseeseeeeeceeeeeceeceeeceeeeeeseaeesesseeeeeseessenseeseaneeeaa 9

Florida State Stat. § 921.141(2)(D)2 oo... eccescseessecssesstesseseecseseesceseesseceeseeeteateates passim

Florida State Stat. § 921.141(2)(b)(2Q)(C) ...ceccsccesssesssssesseressssesessssesesseseeseeeeeeseeseeseeeatens 19

Florida State Stat. § 921.141(2)(b)(2)(c), (B)(A)(Q) oes ceeeeecceeesecsseseseeceeeeeeeeseeceaeeeeeeeetees 19

Florida State Stat. § 921.141(8)(a)2 o.c.cccccccccsscccssessescssececsessssssssesescesesesesseseeseeesseeneeaees 3

viil

OPINION BELOW

Petitioner challenges the decision by the Supreme Court of Florida affirming

his death sentences; that decision appears as McKenzie v. State, 333 So.3d 1098 (Fla.

2022).

JURISDICTION

This Court's jurisdiction to review the final judgment of the Florida Supreme

Court is authorized by 28 U.S.C. § 1257. However, this Court should decline to

exercise jurisdiction in this case because the Florida Supreme Court's decision does

not implicate an important or unsettled question of federal law, does not conflict with

another state court of last resort or a court of appeal of the United States, and does

not conflict with relevant decisions of this Court. Sup. Ct. R. 10.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent accepts Petitioner's statement regarding the applicable

constitutional and statutory provisions involved.

STATEMENT

In Florida, the jury actively participates in both the eligibility and selection

phases of the capital sentencing process. Under Florida law, a capital defendant is

eligible to receive the death penalty once the jury unanimously finds at least one

aggravating factor beyond a reasonable doubt. See Fla. Stat. § 921.141(2)(b)2 ("If the

jury ... [unanimously finds at least one aggravating factor, [then] the defendant is

eligible for a sentence of death...."); see also Poole, 297 So.3d at 502-03 ("Under

longstanding Florida law, there is only one eligibility finding required: the existence

of one or more statutory aggravating circumstances."); see generally McKinney v.

Arizona, 140 S. Ct. 702, 707 (2020) ("Under /Ring v. Arizona, 536 U.S. 584 (2002),]

and /Hurst v. Florida, 577 U.S. 92 (2016)], a jury must find the aggravating

circumstance that makes the defendant death eligible.").

By finding the existence of an aggravating factor beyond a reasonable doubt,

the jury necessarily determines that each aggravating factor found is "sufficient" to

warrant a death sentence. See § 921.141(2)(b)2.a ("Whether sufficient aggravating

factors exist."); see also Poole, 297 So.3d at 502 ("[Olur Court was wrong in /Hurst v.

State, 202 So.3d 40 (Fla. 2016),] when it held that the existence of an aggravator and

the sufficiency of an aggravator are two separate findings, each of which the jury

must find unanimously."). For the purposes of the§ 921.141(2)(b)2.a determination,

"sufficient" simply means "one or more." Poole, 297 So.3d at 502, quoting Miller v.

State, 42 So.3d 204, 219 (Fla. 2010) ("sufficient aggravating circumstances" means

"one or more such circumstances").

While the finding of at least one aggravating factor beyond a reasonable doubt

concludes the jury's role in the eligibility phase, it marks the beginning of the jury's

role in the selection phase. If the jury unanimously finds at least one aggravating

factor beyond a reasonable doubt, then the jury proceeds to the sentence selection

phase where it must evaluate the weight of the aggravating factors and mitigating

circumstances. See Poole, 297 So.3d at 502 (identifying the weighing of aggravating

factors and mitigating circumstances as the "selection finding"); see generally

Tuilaepa v. California, 512 U.S. 967, 971 (1994) ("Our capital punishment cases

under the Eighth Amendment address two different aspects of the capital decisionmaking process: the eligibility decision and the selection decision.").

In performing its role during the selection phase, the jury must weigh two

considerations: (1) "[wlhether aggravating factors exist which outweigh the

mitigating circumstances found to exist"; and (2) "whether the defendant should be

sentenced to life imprisonment without the possibility of parole or to death." Fla. Stat.

§ 921.141(2)(b)2.b-c.; see generally Tuilaepa, 512 U.S. at 972, quoting Zant v.

Stephens, 462 U.S. 862, 879 (1983) (In order for a defendant to receive the death

penalty at the conclusion of the selection phase, the sentencer must make an

"individualized determination," with that determination based upon a consideration

of “relevant mitigating evidence of the character and record of the defendant and the

circumstances of the crime.") (emphasis omitted).

After considering whether sufficient aggravating factors exist and whether the

aggravating factors outweigh the mitigating circumstances, the jury must

recommend to the trial court "whether the defendant shall be sentenced to life

imprisonment without the possibility of parole or to death." Fla. Stat. §921.141(2)(b)2.

If the jury recommends death, then the trial court may impose either a death sentence

or a sentence of life imprisonment without the possibility of parole. Fla. Stat. §

921.141(3)(a)2. If, however, the jury recommends a sentence of life without the

possibility of parole, then the trial court can only impose a life sentence. Fla. Stat.§

921.141(3)(a)l.

FACTS AND PROCEDURAL BACKGROUND

The underlying facts are set forth in the opinion below. McKenzie 29 So.3d at

275-76. On October 5, 2006, two Flagler Hospital employees became concerned when

Randy Peacock, a respiratory therapist at the hospital, did not report to work. The

two employees drove to the home that Peacock shared with Charles Johnston. Upon

their arrival, they noticed that Peacock's vehicle, a green convertible, was not there.

When the employees entered the residence, they found Peacock lying face down on

the kitchen floor in a pool of blood. Jd. at 275. When deputies from the St. Johns

County Sheriffs Office (SJSO) arrived, they secured the scene and subsequently

located the body of Charles Johnston in a shed that was also located on the property.

While processing the crime scene, law enforcement officers located a hatchet inside

the shed that appeared to have blood on its blade and handle. A butcher knife was

found in the kitchen sink. Deputies observed a gold sport utility vehicle (SUV) in the

driveway and determined that it was registered to Norman Blake McKenzie. /d.

The deputies subsequently spoke with a neighbor of the victims. The neighbor

stated that on October 4, 2006, he went to the victims' home to assist Johnston with

repairs on his vehicle. When the neighbor first arrived, Johnston was not there but

Peacock was present and was speaking with a man whom the neighbor later

identified in a photo lineup as McKenzie. The neighbor confirmed that he saw

Peacock speaking with McKenzie between 4:30 and 7 p.m., and that he also observed

a gold SUV in the driveway. The neighbor departed the victims' residence before dark.

td.

McKenzie subsequently had an encounter with a Citrus County sheriff's

deputy during which Randy Peacock's wallet was recovered from one of McKenzie's

pockets. Further, Charles Johnston's wallet was located in a vehicle that McKenzie

had recently operated. McKenzie agreed to speak with SJSO deputies on two separate

occasions during which he confessed to the murders of Peacock and Johnston. /d.

McKenzie explained that he went to the victims' residence on October 4, 2006,

to borrow money from Johnston because of his drug addiction. When he first arrived,

only Peacock and the neighbor were present; however, Johnston returned home

around dusk. The neighbor left after briefly speaking with Johnston, and at some

point, Peacock went inside the residence. McKenzie then asked Johnston for a

hammer and a piece of wood so that he could knock some “dings” out of the door of

his SUV. Johnston could not locate a hammer and gave McKenzie a hatchet. While

walking into the shed to locate a piece of wood, McKenzie struck Johnston in the head

with the blade side of the hatchet. Johnston fell to the floor and McKenzie struck him

again. Jd. McKenzie then entered the home, approached Peacock, who was cooking in

the kitchen, and struck him with the hammer side of the hatchet approximately two

times. /d. at 276.

McKenzie returned to the shed, and when he observed that Johnston was still

alive, he struck Johnston one or more times with the hatchet. McKenzie removed

Johnston's wallet from his pocket, placed the hatchet on top of a bucket inside the

shed, and re-entered the residence. McKenzie observed that Peacock was struggling

to stand up, so he grabbed a knife and stabbed Peacock multiple times. McKenzie

then placed the knife in the sink, took Peacock's wallet and car keys, and departed in

Peacock's vehicle. /d.

The jury recommended the death penalty for each murder by a vote of ten to

two for each murder. /d. at 277. The trial court followed the jury’s recommendation

and sentenced McKenzie to death for both murders. /d. at 277-78. Following

unsuccessful state post-conviction litigation, McKenzie sought relief in federal court.

After this Court issued Hurst v. Florida, 577 U.S. 92 (2016), McKenzie filed a

successive motion for postconviction relief in state court, and the District Court

stayed the petition. McKenzie v. Secretary, Department of Corrections and Attorney

General, State of Florida; 3:15-cv-47-MMH-LLL. On June 19, 2017, the trial court

entered its order vacating McKenzie’s death sentences and returned the matter to

the trial docket for a new penalty phase proceeding.

McKenzie's second penalty phase was tried before a new jury in August 2019.

The State and the defense each presented evidence, following which the jury

unanimously found—as to each murder—that the State established the existence of

five proposed aggravating factors beyond a reasonable doubt: (1) McKenzie was

previously convicted of a capital felony or a felony involving the use or threat of

violence to a person (based on the contemporaneous murders of Johnston and

Peacock, and also based on eight prior violent felony convictions); (2) the first-degree

murder was committed while McKenzie was engaged in the commission of a robbery;

(3) the first-degree murder was committed for financial gain; (4) the first-degree

murder was especially heinous, atrocious, or cruel (HAC); and (5) the first-degree

murder was committed in a cold, calculated, and premeditated manner, without any

pretense of moral or legal justification (CCP).

The jury also unanimously found that the aggravating factors were sufficient

to warrant a sentence of death. One or more jurors found that one or more mitigating

circumstances was established by the greater weight of the evidence, and the jury

unanimously found that the aggravators outweighed the mitigating circumstances.

The jury unanimously found that McKenzie should be sentenced to death for each

murder. McKenzie v. State, 333 So.3d 1098, 1102 (Fla. 2022).

The trial court later conducted a Spencer! hearing and a sentencing hearing.

In its sentencing order, the court found that all five aggravating factors were proven

beyond a reasonable doubt as to each murder. The court assigned weight to each

aggravating factor as follows: (1) McKenzie was previously convicted of a capital

felony or a felony involving the use or threat of violence to a person—based on the

contemporaneous murders of Johnston and Peacock, and also based on eight prior

violent felony convictions (very great weight); (2) the first-degree murder was

committed while McKenzie was engaged in the commission of a robbery (great

weight); (3) the first-degree murder was committed for financial gain (merged with

murder during commission of a robbery; no additional weight); (4) HAC (great

weight); and (5) CCP (great weight).

1 Spencer v. State, 615 So. 2d 688 (Fla. 1993)(providing capital defendants a hearing

following the penalty phase jury recommendation in which the defendant can present

additional evidence and argument before the judge).

7

The trial court also found the following statutory mitigating circumstances as

to each murder: (1) the murder was committed while McKenzie was under the

influence of extreme mental or emotional disturbance (moderate weight); and (2)

McKenzie's capacity to appreciate the criminality of his conduct or to conform his

conduct to the requirements of law was impaired (slight weight).

As to non-statutory mitigating circumstances, the trial court found as follows:

(1) McKenzie's childhood was chaotic (slight weight); (2) McKenzie and his siblings

were inadequately supervised after their parents’ divorce (very slight weight); (3)

McKenzie began huffing inhalants at the age of eleven (slight weight); (4) McKenzie

had an early and chronic abuse and dependency on alcohol and drugs (slight weight):

(5) McKenzie had a cocaine dependency relapse starting in July 2006 that continued

up to the time of and after the murders (slight weight); (6) McKenzie consistently

used a voluminous amount of cocaine from July to October of 2006 (slight weight); (7)

McKenzie cooperated with law enforcement at the time of his arrest (slight weight);

(8) McKenzie admitted to the murders (moderate weight); (9) McKenzie has artistic

ability (slight weight); (10) McKenzie was a construction assistant superintendent

before the murders and had a key role in the construction of a shopping center (slight

weight); (11) McKenzie impacted the life of his wife/fiancée in a positive way while in

prison (slight weight); and (12) the prior sentencing jury did not unanimously

recommend that McKenzie be sentenced to death (not a mitigating circumstance; no

weight). /d. at 1102—03.

McKenzie raised six issues on appeal to the Florida Supreme Court. 2 The

Florida Supreme Court affirmed his death sentences and with respect to the issues

relevant to the instant petition, the court held as follows:

IV. Sufficiency of Aggravating Factors

McKenzie argues that his death sentence is invalid because the jury did

not find beyond a reasonable doubt that the aggravating factors were

sufficient to impose the death penalty. He contends that for a death

sentence to be valid, the jury must find beyond a reasonable doubt that

the aggravating factors were sufficient to impose the death penalty and

that the aggravating factors outweighed the mitigating circumstances.

However, these jury determinations are “not subject to the beyond a

reasonable doubt standard of proof.” Newberry v. State, 288 So. 3d 1040,

1047 (Fla. 2019); see also Craft v. State, 312 So. 3d 45, 57 (Fla.

2020); Rogers v. State, 285 So. 3d 872, 885-86 (Fla. 2019). We decline

McKenzie's invitation to revisit what has been settled: only

the existence of a statutory aggravating factor must be found beyond a

2 Issue I: Whether the trial court erred in denying defendant's motion for

interrogatory penalty phase verdict in violation of the Fourth, Fifth, Sixth, and

Fourteenth Constitutional Amendments; Issue II: Whether the trial court erred in

denying the appellant's motion to strike state’s amended notice of aggravating

circumstances in violation of his Fifth, Sixth, and Fourteenth Constitutional

Amendments; Issue III: Whether the trial court erred by denying appellant’s motion

to allow victim impact evidence before the judge alone in violation of appellant’s

Fourth, Fifth, Eighth, and Fourteenth Constitutional Amendments; Issue IV:

Whether the trial court erred in finding that the aggravating factors were sufficient

to support the death penalty when the jury did not find the aggravators were

sufficient beyond a reasonable doubt, and the jury was not instructed on what

constitutes sufficient in order to support the death penalty in violation of McKenzie’s

Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution; Issue V:

Whether the statutory construction in Hurst // constitutes substantive law, and the

Due Process Clause of the Fourteenth Amendment law, requires that this substantive

law govern the law that existed at the time of McKenzie’s new penalty phase trial;

Issue VI: Whether the trial court erred in denying McKenzie’s motion to find section

921.141, Florida Statutes, as unconstitutional because the “prior violent felony”

aggravator is unconstitutionally vague and overbroad.

Initial Brief, 29, 34, 39, 47, 60, 66. (McKenzie v. State, 2020 WL 5359504 (Fla. Sept.

1, 2020).

reasonable doubt. See Poole, 297 So. 3d at 505. See also Mckinney v.

Arizona, U.S. , 140 S. Ct. 702, 707-08, 206 L.Ed.2d 69 (2020).

McKenzie also argues that the term “sufficient” requires a qualitative,

not a numerical definition, and that the failure to define “sufficient” for

the jury constituted fundamental error. However, we expressly rejected

the qualitative versus numerical argument in Poole: “Poole's suggestion

that ‘sufficient’ implies a qualitative assessment of the aggravator—as

opposed simply to finding that an aggravator exists—is unpersuasive

and contrary to this [Court's] decades-old precedent.” Poole, 297 So. 3d

at 502.

V. Hurst v. State

McKenzie contends that this Court's analysis of jury sentencing

in Hurst v. State established substantive law that required his jury to

find certain “elements” beyond a reasonable doubt. This Court has

soundly rejected McKenzie's “elements” argument and has explained

that Hurst v. Statejury sentencing determinations are not “elements”

that must be found beyond a reasonable doubt. See Poole, 297 So. 3d at

505.

Moreover, to the extent that McKenzie argues that the Aurst v.

State jury sentencing determinations constitute elements of a purported

greater offense of capital first-degree murder, we have also rejected this

argument:

As we explained in Foster, there is no independent crime

of “capital first-degree murder”; the crime of first-degree

murder is, by definition, a capital crime, and Hurst v.

State did not change the elements of that crime. /d. at

1251-52 (holding that when a jury

makes Hurst determinations, “it only does so aftera jury

has unanimously convicted the defendant of the capital

crime of first-degree murder”).

Wright v. State, 312 So. 3d 59, 60 (Fla. 2021) (quoting Foster v. State,

258 So. 3d 1248, 1251 (Fla. 2018)).

McKenzie v. State, 333 So.3d 1098, 1105-06 (Fla. 2022).

The instant petition for writ of certiorari to this Court followed.

10

REASONS FOR DENYING THE WRIT

I. The Decision Below Does Not Conflict with This Court’s Precedents.

Petitioner asks this Court to address whether, for death sentence eligibility,

the Due Process Clause of the Fourteenth Amendment requires Florida juries in

capital cases to find beyond a reasonable doubt that: the aggravating factors are

sufficient to warrant the death penalty; and the aggravating factors outweigh the

mitigating circumstances. Petitioner does not assert that his question presented

implicates a division among the lower courts. Instead, he claims that the Florida

Supreme Court’s decision “conflicts with this Court’s opinions in Apprendi, Ring, In

Re Winship 4, Alleyne *, and Hurst.” Pet. 9-12, 17. Petitioner is incorrect.

The cases Petitioner cites do not conclude that the beyond-a-reasonable-doubt

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

sentencing recommendation. To the contrary, those cases evince this Court's

understanding that that standard of proof is limited to factua/ findings. By its terms,

In re Winship applies the beyond-a-reasonable-doubt standard only to “the

factfinder.” 397 U.S. 358, 363— 64 (1970); see also id. (referencing “the trier of fact”).

The Due Process Clause, the Court there held, “protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” /d. at. 364; see also Alleyne v. United

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

4 In re Winship, 397 U.S. 358 (1970).

5 Alleyne v. United States, 570 U.S. 99, 103 (2013).

11

States, 570 U.S. 99, 103 (2018) (“Any fact that, by law, increases the penalty for a

crime is an ‘element’ that must be submitted to the jury and found beyond a

reasonable doubt.”).

Consistent with Winship, this Court in Apprendi expressly and repeatedly

explained that the beyond-a-reasonable-doubt standard of proof applies to “facts.” For

example, the Court:

e required the States to “adhere to the basic principles undergirding the

requirements of trying to a jury all facts necessary to constitute a

statutory offense, and proving those facts beyond reasonable doubt,”

Apprendi v. United States, 530 U.S. 466, 483-84 (2000);

e referenced the jury’s “assessment of facts,” id. at 490 (quotation marks

omitted);

e described the “novelty of a legislative scheme that removes the jury

from the determination of a fact that, if found, exposes the criminal

defendant to a penalty exceeding the maximum he would receive if

punished according to the facts reflected in the jury verdict alone,” id.

at 482-83 (emphasis omitted); and

e explained that “constitutional limits exist to States’ authority to define

away facts necessary to constitute a criminal offense” and “a state

scheme that keeps from the jury facts that ‘exposle] [defendants] to

greater or additional punishment’ may raise serious constitutional

concern.” Jd. at 486 Gnternal citation omitted).

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

should be extended to non-factual normative judgments of the kind at issue here, and

this Court’s statements concerning that standard of proof undermine rather than

support Petitioner’s claim.

This Court’s cases applying Apprend!to the capital sentencing context likewise

did not hold that the Due Process Clause requires the jury to determine, beyond a

12

reasonable doubt, that normative considerations support the imposition of the death

penalty. In Ring, for example, this Court explained that “[clapital defendants, no less

than noncapital defendants . . . are entitled to a jury determination of any fact on

which the legislature conditions an increase in their maximum punishment.” 536 U.S.

at 589. So too in Hurst, where this Court reiterated that the sentencing scheme in

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

punishment.” 577 U.S. at 98; see also id. at 94 (“The Sixth Amendment requires a

jury, not a judge, to find each fact necessary to impose a sentence of death.”).

In sum, the decision below does not conflict with this Court’s precedents. None

of the cases Petitioner cites held that a jury must find beyond a reasonable doubt that

aggravating factors outweigh mitigating circumstances or are sufficient to warrant

the imposition of capital punishment.

II. The Decision Below Is Correct.

Florida’s statute specifically details the findings necessary to make a

defendant eligible for a capital sentence:

If the jury ... [ulnanimously finds at least one aggravating factor, the

defendant is eligible for a sentence of death and the jury shall make a

recommendation to the court as to whether the defendant shall be

sentenced to life imprisonment without the possibility of parole or to

death.

§ 921.141(2)(b)2., Fla. Stat. (emphasis added). Once a defendant is eligible for a

capital sentence, the jury must then determine their view of the appropriate sentence

based on the facts of the case. In relevant part, this recommendation is "based on a

weighing" of "[w]hether sufficient aggravating factors exist" and "[wlhether

13

aggravating factors exist which outweigh the mitigating circumstances found to

exist."§ 921.141(2)(b)2.a.-b., Fla. Stat.

The Florida Supreme Court recently explained why these selection criteria are

not "facts" subject to the beyond a reasonable doubt standard. State v. Poole, 297

So.3d 487, 503 (Fla. 2020), cert. denied subnom. Poole v. Florida, 141 S. Ct. 1051

(2021). In rejecting the argument that weighing is the functional equivalent of an

element, the Florida Supreme Court acknowledged this Court's precedent in

Apprendi and noted that weighing is not a factual determination. Poole, 297 So.3d at

503. Indeed, "the ultimate question whether mitigating circumstances outweigh

aggravating circumstances is mostly a question of mercy." /d. (quoting Kansas v.

Carr, 136 S. Ct. 633 (2016)). Subjective determinations, like weighing of the

ageravators against the mitigators, "cannot be analogized to an element of a crime"

because they are discretionary judgment calls. Jd.

Finally, as a matter of Florida law, the Florida Supreme Court held that the

finding of an aggravator is the sole eligibility criteria for a capital sentence. /d. "The

role of the" weighing selection finding "is to give the defendant an opportunity for

mercy if it is justified by the relevant mitigating circumstances and by the facts

surrounding his crime." /d. And, again as a matter of Florida law, the Florida

Supreme Court held that the sufficiency of the aggravators criteria is met once a jury

finds a single aggravating circumstance. Jd. at 502.

This Court's recent decision in McKinney v. Arizona, 140 S. Ct. 702 (2020),

confirms that the sufficiency and weighing selection criteria are not the functional

14

equivalent of elements. In McKinney, a capital defendant challenged his death

sentence because the sentencing judge had failed to consider his posttraumatic stress

disorder (PTSD) as a mitigating factor, thereby violating Eddings v. Oklahoma, 455

U.S. 104 (1982) (holding that a capital sentencer may not refuse as a matter of law to

consider relevant mitigating evidence). On remand from the Ninth Circuit, the

Arizona Supreme Court performed its own de nova weighing of the aggravators and

mitigators, including the defendant's PTSD, and upheld the sentence. McKinney, 140

S. Ct. at 706. In the state supreme court's independent judgment, the balance of the

agegravators and mitigators warranted the death penalty. Jd.

On certiorari review, the defendant argued that "a jury must resentence him"

because a court "could not itself reweigh the aggravating and mitigating

circumstances." McKinney, 140 S. Ct. at 706. This Court rejected that claim. "Under

Ring and Hurst,” this Court explained, "a jury must find the aggravating

circumstance that makes the defendant death eligible." Jd. at 707. "[I]mportantly,"

however, "in a capital sentencing proceeding just as in an ordinary sentencing

proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the

aggravating and mitigating circumstances or to make the ultimate sentencing

decision within the relevant sentencing range." /d.; see also id. at 708 (explaining that

"Ring and Hurst did not require jury weighing of aggravating and mitigating

circumstances").

Because the Sixth Amendment permits the “weighling] [of] aggravating and

mitigating” evidence by judges, id. at 707, the determination that aggravators

15

outweigh mitigators cannot be considered an “element” of the offense. And because

that determination is not an element, it is not subject to the beyond-a-reasonabledoubt standard. See Alleyne, 570 U.S. at 107 (‘The touchstone for determining

whether a fact must be found by a jury beyond a reasonable doubt is whether the fact

constitutes an ‘element’ or ‘ingredient’ of the charged offense.”). In other words,

McKinney rejects an essential premise of Petitioner's argument: that the weighing of

aggravators and mitigators is either an “element” or the “functional equivalent” of an

element.

The outcome is not different simply because Florida has chosen to assign the

weighing determination to the jury, rather than the judge as it constitutionally could

have. If the Sixth Amendment permits a judge to determine whether aggravators

outweigh mitigators, and further permits the judge to make that determination by

some lesser standard (or none at all), nothing prevents the State from re-allocating

that task to the jury by the same standard of proof. Any contrary theory would punish

States for being more generous in extending procedural protections to capital

defendants by forcing them to extend a// available procedural protections. But

because the weight of the aggravators is not an element of a capital offense, that

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

beyond a reasonable doubt. See McKinney, 140 S. Ct. at 707-08.

Finally, the statutory requirement that the jury weigh, among other

considerations, “[w]hether sufficient aggravating factors exist,” § 921.141(2)(b)(2)(a),

adds nothing to Petitioner’s argument. As construed by the Florida Supreme Court,

16

“it has always been understood that . . . ‘sufficient aggravating circumstances’ means

‘one or more.” Poole, 297 So.3d at 502 (citing cases). Put differently, “[u]nder

longstanding Florida law, there is only one eligibility finding required: the existence

of one or more statutory aggravating circumstances.” /d. And it is undisputed that,

in this case, that requirement was satisfied when the jury unanimously found

multiple aggravating circumstances beyond a reasonable doubt. McKenzie v. State,

333 So.3d 1098, 1102 (Fla. 2022).

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

apply the beyond-a-reasonable-doubt standard to normative determinations of the

kind at issue here. In Carr, this Court “doubtled]” that it is “even possible to apply a

standard of proof to the mitigating-factor determination.” 136 S. Ct. at 642. The Court

reasoned that “lilt is possible to do so for the aggravating-factor determination,” on

the one hand, because the existence of an aggravator “is a purely factual

determination.” Jd. Whether mitigation exists, on the other hand, “is largely a

judgment call”—or “perhaps a value call’—just as the “ultimate question whether

mitigating circumstances outweigh aggravating circumstances is mostly a question

of mercy.” Jd. Thus, “liJt would mean nothing .. . to tell the jury that the defendants

must deserve mercy beyond a reasonable doubt; or must more-likely-than-not deserve

it.” Td.

As this Court has explained, the beyond-a-reasonable-doubt standard ensures

that the prosecution must “persuadle] the factfinder at the conclusion of the trial of

[the defendant’s] guilt beyond a reasonable doubt.” Winship, 397 U.S. at 364. This

17

safeguard preserves the “moral force of the criminal law” because it does not “leave

people in doubt whether innocent men are being condemned.” /d. at 364. But

sufficiency and weighing do not go to whether the defendant is guilty of a capital

offense— that question is answered when the jury finds the existence of an

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

548 U.S. 168, 175-76 (2006). Sufficiency and weighing instead go to the

appropriateness of the penalty. That is, they are normative judgments, not facts.

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

in this context, is “a piece of information presented as having objective reality.”

“Fact,” Merriam: Webster's Dictionary, https://www.merriamwebster.com/dictionary/fact. Facts have their basis in observable truths about the

world. A fact either is or isn’t; although a person’s perception of facts may be open to

debate, facts are objectively discernable. By contrast, normative judgments are

opinions. As such, they turn on the subjective views of individual decisionmakers. In

short, they are questions involving discretion.®

Petitioner's substantial expansion of the Apprendi doctrine would have

significant and troubling practical implications, including for non-capital sentencing.

The federal statute governing criminal sentences, for example, provides that “[t]he

court shall impose a sentence sufficient, but not greater than necessary, to comply

6 Judges routinely make sentencing decisions within the statutory range authorized

by statute using their best judgement or discretion. Judges are not required to make

that discretionary decision beyond a reasonable doubt. It is no different when the

jury makes a discretionary sentencing recommendation.

18

with” certain statutorily enumerated sentencing factors. 18 U.S.C. § 3553(a). Given

that a federal sentence must, by statute, be supported by a normative judgment that

the chosen sentence is “not greater than necessary” to effectuate “the purposes set

forth in” the statutory sentencing factors, see id., must that “finding” be made by a

jury beyond a reasonable doubt? And if not, why is that normative judgment any

different than the moral determination at issue here—i.e., that aggravating factors

outweigh mitigating circumstances? See United States v. Gabrion, 719 F.3d 511, 533

(6th Cir. 2013) (en banc).

Petitioner asks this Court to rule those two determinations—sufficiency and

weighing—must be made beyond a reasonable doubt. But the statute also provides

that the trial court may not impose death unless the jury further determines, based

on those two factors, that death is the appropriate sentence. See Fla. Stat. §

921.141(2)(b)(2)(c), (3)(a)(2) (requiring the jury to determine, based on sufficiency and

weighing, “whether the defendant should be sentenced to life imprisonment without

the possibility of parole or to death,” and providing that the court may sentence the

defendant to death if, and only if, “the jury has recommended a sentence of. . .

[dleath”). Petitioner nevertheless does not go so far as to say that that the jury’s

ultimate recommendation that “the defendant should be sentenced to. . . death,” §

921.141(2)(b)(2)(c), must be made beyond a reasonable doubt. And for good reason:

“Any argument that the Constitution requires that a jury impose the sentence of

death,” this Court has explained, “has been soundly rejected by prior decisions of this

19

Court.” Clemons v. Mississippi, 494 U.S. 738, 745 (1990); see also McKinney, 140 S.

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

Nor would Petitioner's proposed extension of the Apprendi doctrine necessarily

redound to the benefit of criminal defendants. If state laws like the one Petitioner

asks this Court to strike down—those that seek to protect criminal defendants by

reducing the risk of arbitrariness and guiding a sentencing authority’s discretion to

impose particularly harsh punishments—give rise to otherwise non-existent due

process problems, lawmakers may well respond by repealing, rolling back, or

declining to create such protections in the first place. That is one reason why this

Court has “warned against wooden, unyielding insistence on expanding the Apprendi

doctrine far beyond its necessary boundaries.” Oregon v. Ice, 555 U.S. 160, 172 (2009)

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

The foregoing explains why this Court has denied certiorari in multiple cases

presenting the identical jury-instruction issue. 7

7 Wright v. Florida, 142 S. Ct. 403 (Oct. 18, 2021) (No. 21 5356); Randolph v. Florida,

142 S. Ct. 905 (January 24, 2022) (No. 21 6387); Santiago-Gonzalez v. Florida, 141 S.

Ct. 2828 (June 21, 2021) (No. 20-7495); Rogers v. Florida, 141 S. Ct. 284 (Oct. 5,

2020) (No. 19 8473); Bright v. Florida, 141 8. Ct 1697 (Mar. 22, 2021) (No. 20 6824);

Doty v. Florida, 142 8. Ct. 449 (Nov. 1, 2021) (No. 215672); Craft v. Florida, 142 S.

Ct. 490 (Nov. 15, 2021) (No. 215280); Craven v. Florida, 142 S. Ct. 199 (Oct. 4, 2021)

(20-8403); Newberry v. Florida, 141 8. Ct. 625 (Oct. 19, 2020) (No. 20-5072). This

Court has also denied certiorari review in a case presenting the underlying question

of whether the Sixth and Eighth Amendments require that a jury find that the

aggravators outweighed the mitigators. See Poole v. Florida, 141 S. Ct. 1051 Wan. 11,

2021) (No. 20-250).

20

In short, the decision below does not conflict with this Court's precedents. None

of the cases Petitioner cites held that a jury must find beyond a reasonable doubt that

aggravating factors outweigh mitigating circumstances or are sufficient to warrant

the imposition of capital punishment.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ATPORNEY GENERAL OF FLORIDA

( a wade Cee Le

CAROLYN M. SNURKOWSKI*

Deputy Assistant Attorney General

Florida Bar No. 158541

*Counsel of Record

DORIS MEACHAM

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399

Telephone: (850) 414-3300

CapApp@myfloridalegal.com

Carolyn.Snurkowski@myfloridalegal.com

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