Petition for Writ of Certiorari — John A. Crane, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

JOHN CRANE, PETITIONER

Vv.

STATE OF FLORIDA, RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

CAREY HAUGHWOUT

Public Defender

Paul Edward Petillo

Assistant Public Defender

Counsel of Record

Office of the Public Defender. .

Fifteenth Judicial Circuit of Florida

421 Third Street

West Palm Beach, Florida 33401

(561) 355-7600

ppetillo@pd15.state.fl.us

appeals@pd15.org

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOHN CRANE,

Appellant,

Vv.

STATE OF FLORIDA,

Appellee.

No. 4D22-1032

[May 24, 2023]

Appeal from the Circuit Court of the Nineteenth Judicial Circuit, Martin

County; Sherwood Bauer, Jr., Judge; L.T. Case No. 432018CFOO0650A.

Carey Haughwout, Public Defender, and Erika Follmer, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,

Senior Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Affirmed. See Guzman v. State, 350 So. 3d 72, 73 (Fla. 4th DCA 2022),

rev. pending, No. SC22-1597.

LEVINE, FORST and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

RECEIVED 06/13/2023 4:05 pm Fourth District Court Of Appeal

Supreme Court of F lorida

TUESDAY, JUNE 13, 2023

John A. Crane, , $C2023-0762

Petitioner(s) Lower Tribunal No(s).:.

v. 4D22-1032;

4320 18CFOQO06S50CFAXMX

State of Florida,

Respondent(s)

This case’is hereby dismissed. This Court lacks jurisdiction to

review an unelaborated decision from a district court of appeal that

is issued without opinion or explanation or that merely cites to an

authority that is not a case pending review in, or reversed or

quashed by, this Court. See Wheeler v. State, 296 So. 3d 895 (Fla.

2020); Wells v. State, 132 So. 3d 1110 (Fla. 2014); Jackson v. State,

926 So. 2d 1262 (Fla. 2006); Gandy v. State, 846 So. 2d 1141 (Fla.

2003); Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002); Harrison v.

Hyster Co., 515 So. 2d 1279 (Fla. 1987); Dodi Publ’g Co. v. Editorial

Am. S.A., 385 So. 2d 1369 (Fla. 1980); Jenkins v. State, 385 So. 2d

1356 (Fla. 1980).

No motion for rehearing or reinstatement will be entertained

by the Court. ;

A True Copy

Test:

un

CASE NO.: SC2023-0762

Page Two .

LC

Served: ;

HON. SHERWOOD BAUER JR.

CHRISTINE C. GERAGHTY

HON. CAROLYN TIMMANN

RICHARD VALUNTAS.

HON. LONN WEISSBLUM

POINT V

CRANE WAS ENTITLED TO A TWELVE-PERSON JURY

UNDER THE SIXTH AND FOURTEENTH AMENDMENTS,

AND HE DID NOT WAIVE THAT RIGHT.

Crane, charged with a felony punishable by up to thirty-years

imprisonment, was convicted by a jury comprised of a mere six people. T. 510-11; R. 37. He argues that the Sixth and Fourteenth

Amendments guarantee the right to a twelve-person jury when the

defendant is charged with a felony. The standard of review of constitutional claims is de novo. See A.B. v. Florida Dept. of Children &

Family Services, 901 So. 2d 324, 326 (Fla. 3d DCA 2005).

Although the Supreme Court held in Williams v. Florida, 399

U.S. 78, 86 (1970), that juries as small as six were constitutionally

permissible, Williams is impossible to square with the Supreme

Court’s ruling in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), which

concluded that the Sixth Amendment’s “trial by an impartial jury”

requirement encompasses what the term “meant at the Sixth Amendment’s adoption,” id. at 1395.

Prior to 1970, subjecting Crane toa trial with only six jurors :

‘would have indisputably violated his Sixth Amendment rights. As the

Ramos Court observed, even Blackstone recognized that under the

52

common law, “no person could be found guilty of a serious crime

“unless ‘the truth of every accusation ... should ... be confirmed by

the unanimous suffrage of twelve of his equals and neighbors[.]” 140

S. Ct. at 1395. “A Verdict, taken from eleven, was no verdict’ at all.”

Id.

After the Sixth Amendment was enacted, a bevy of state

courts—ranging from Alabama to Missouri to New Hampshire—interpreted it to require a twelve-person jury. See Miller, Comment, Six of

One Is Not A Dozen of the Other, 146 U. Pa. L. Rev. 621, 643 n.133

(1998) (collecting cases from the late 1700s to.the 1860s). In 1898,

- the U.S. Supreme Court added its voice to the chorus, noting that

the Sixth Amendment protects a defendant’s right to be tried by a

twelve-person jury. Thompson v. Utah, 170 U.S. 343, 349-350 (1898).

As the Thompson Court explained, since the time of Magna Carta, the

word “jury” had been understood to mean a body of twelve people. Id.

‘Given that understanding had been accepted since 1215, the Court

reasoned; “[i]t must” have been “that the word jury” in the Sixth

Amendment was “placed in the constitution of the United States with

reference to [that] meaning affixed to [it].” Id. at 350.

53

The Supreme Court continued to cite the basic principle that

the Sixth Amendment requires a twelve-person jury in criminal cases

for seventy more years. For example, in 1900, the Court explained

that “there [could] be no doubt” “/t]hat a jury composed, as at common law, of twelve jurors was intended by the Sixth Amendment to

the Federal Constitution.” Maxwell v. Dow, 176 U.S. 581, 586 (1900).

Thirty years later, the Court reiterated that it was “not open to question” that “the phrase ‘trial by jury” in the Constitution incorporated

juries’ “essential elements” as “they were recognized in this country

and England,” including the requirement that they “consist of twelve

men, neither more nor less.” Patton v. United States, 281 U.S. 276,

288 (1930). And as recently as 1968, the Court remarked that “by

the time our Constitution was written, jury trial in criminal cases had

been in existence for several centuries and carried impressive credentials traced by many to Magna Carta,” such as the necessary inclusion of twelve members. Duncan v. Louisiana, 391 U.S. 145, 151-

152 (1968).3

3 See also, e.g., Capital Traction Co v. Hof, 174 U.S. 1, 13 (1899)

(“Trial by jury,’ in the primary and usual sense of the term at the

common law and in the American constitutions, is not merely a trial

54

In 1970, however, the Williams Court overruled this line of precedent in a decision that Justice Harlan described as “stripping off the

livery of history from the jury trial” and ignoring both “the intent of

the Framers” and the Court’s long held understanding that constitutional “provisions are framed in the language of the English common

law [{] and ... read in the light of its history.” Baldwin v. New York,

399 U.S. 117, 122-123 (1970) (citation omitted) (Harlan, J., concurring in the result in Williams). Indeed, Williams recognized that the

Framers “may well” have had “the usual expectation” in drafting the

Sixth Amendment “that the jury would consist of 12” members. Williams, 399 U.S. at 98-99. But Williams concluded that such “purely

historical considerations” were not dispositive. Id. at 99. Rather, the

Court focused on the “function” that the jury plays in the Constitution, concluding that the “essential feature” of a jury is it leaves jus-

tice to the “commonsense judgment of a group of laymen” and thus

by a jury of 12 men” but also contains other requirements); Rassmussen v. United States, 197 U.S. 516, 529 (1905) (“The constitutional

requirement that ‘the trial of all crimes, except in cases of impeachment, shall be by jury,’ means, as this court has adjudged, a trial by

the historical, common-law jury of twelve persons’).

55

allows “guilt or innocence” to be determined via “community participation and [with] shared responsibility.” Id. at 100-01. According to

the Williams Court, both “currently available evidence [and] theory”

suggested that fuinction could just as easily be performed with six

jurors as with twelve. Id. at 101-102 & n.48; ef. Burch v. Louisiana,

441 U.S. 130, 137 (1979) (acknowledging that Williams and its progeny “departed from the strictly historical requirements of jury trial”).

Williams’s ruling that the Sixth Amendment (as incorporated to

the States by the Fourteenth) permits a six-person jury cannot stand

in light of Ramos. There, the Supreme Court held that the Sixth

Amendment requires a unanimous verdict to convict a defendant of

a serious offense. In reaching that conclusion, the Ramos Court overturned Apodaca v. Oregon, 406 U.S.-404 (1972), a decision that it

faulted for “subject[ing] the ancient guarantee of a unanimous jury

- verdict to its own functionalist assessment.” 140 S. Ct. at 1401-1402.

That reasoning undermines Williams as well. Ramos rejected

the same kind of “cost-benefit analysis” the Court undertook in Wil- ©

liams, observing that it is not the Court’s role to “distinguish between

the historic features of common law jury trials that (we think) serve

‘important enough functions to migrate silently into the Sixth

56

Amendment and those that don’t.” 140 S. Ct. at 1400-01. Ultimately,

‘the Ramos Court explained,.the question is. whether “at the time of

the Sixth Amendment’s adoption, the right to trial by jury included”

the particular feature at issue. Id. at 1402. As the history summiarized above establishes, there can be no serious doubt that the common understanding of the jury trial during the Revolutionary War era

was that twelve jurors were required—“a verdict, taken from eleven,

was no verdict at all.” See id. at 1395 (quotation marks omitted).

Even setting aside Williams's now-disfavored functionalist logic,

its ruling suffered from another significant flaw: it was based on research that was out of date.shortly after the opinion issued. Specifically, the Williams Court “flou]nd little reason to think” that the goals

of the jury guarantee—including, among others, “to provide a fair

possibility for obtaining a representative[] cross-section of the community’—“are in any meaningful sense less likely to be achieved

-when the jury numbers six, than when it numbers 12.” 399 U.S. at

100. The Court theorized that “in practice the difference ‘between the

12-man and the six-man jury in terms of the cross-section of the

community represented seems likely to be negligible.” Jd. at 102.

57

In the time since Williams, that determination has proven incorrect. Indeed, the Court acknowledged as much just eight years later

in Ballew v. Georgia, 435 U.S. 223 (1978), when it concluded that the

Sixth Amendment barred the use of a five-person jury. Although

Ballew did not overturn Williams, the Ballew Court observed that

empirical studies conducted in the handful of intervening years highlighted several problems with Williams assumptions. For example,

Ballew noted that more recent research showed that (1) “smaller juries are less likely to foster effective group deliberation,” id. at 233,

(2) smaller juries may be less accurate and cause “increasing inconsistency” in verdict results, id. at 234, (3) the chance for hung juries

' decreases with smaller juries, disproportionally harming the defendant, id. at 236; and (4) decreasing jury sizes “foretell[] problems ... for

the representation of minority groups in the community,” undermining a jury’s likelihood of being “truly representative of the community,” id. at 236-37. Moreover, the Ballew Court “admit[ted]” that it’

_ “diid] not pretend to discern a clear line between six members and

five,” effectively acknowledging that the studies it relied on also cast

doubt on the effectiveness of the six-member jury. Id. at 239; see also

58

id. at 245-46 (Powell, J.) (agreeing that five-member juries are unconstitutional, while. acknowledging that “the line between five- and

six-member juries is difficult to justify’).

Post-Ballew research has further undermined Williams. Current empirical evidence indicates that “reducing jury size inevitably

has a drastic effect on the representation of minority group members

on the jury.” Diamond et al., Achieving Diversity on the Jury: Jury

Size and the Peremptory Challenge, 6 J. of Empirical Legal Stud. 425,

427 (Sept. 2009); see also Higginbotham et al., Better by the Dozen:

Bringing Back the Twelve-Person Civil Jury, 104 Judicature 47, 52

(Summer 2020) (“Larger juries are also more inclusive and more representative of the community. ... In reality, cutting the size of the jury

dramatically increases the chance of excluding minorities.”). Because

“the 12-member jury produces significantly greater heterogeneity

than does the six-member jury,” Diamond et al., Achieving Diversity

on the Jury, supra, at 449, it increases “the opportunity for meaningful and appropriate representation” and helps ensure: that juries

“represent adequately a cross-section of the community.” Ballew, 435

U.S. at 237.

59

Other important considerations also weigh in favor of the

twelve-member jury. For instance, studies indicate that. twelve-member juries deliberate longer, recall evidence better, and rely less on

irrelevant factors during deliberation. See Smith & Saks, The Case

for Overturning Williams v. Florida and the Six-Person Jury, 60 Fla. L.

Rev, 441, 465 (2008). Minority views are also more likely to be thor-

’ oughly expressed in a larger jury, as “having a large minority helps

make the minority subgroup more influential,” and, unsurprisingly,

“the chance of minority members having allies is greater on a twelveperson jury.” Id. at 466. Finally, larger juries deliver more predictable

results. In the civil context, for example, “[slix-person juries are four

times more likely to return extremely high or low damage awards

compared to the average.” Higginbotham et al., Better by the Dozen,

supra, at 52.

Crane recognizes that the state constitution provides:

SECTION 22. Trial by jury.—The right of trial by jury shall

be secure to all and remain inviolate. The qualifications

and the number of jurors, not fewer than six, shall be fixed

- by law.

60

Art. I, § 22, Fla. Const. And he recognizes that section 913.10, Florida

Statutes (2018), provides for six jurors except in capital cases. See

also Fla. R. Crim. P. 3.270.

But Florida’s provision for a jury of six stems from the dawn of

the Jim Crow era, one month after federal troops were withdrawn.

from the state. The historical background is as follows:

In 1875, the Jury Clause of the 1868 constitution was amended

to provide that the number of jurors “for the trial of causes in any

court may be fixed by law.” See Florida Fertilizer & Mfg. Co. v. Boswell,

34 So. 241, 241 (Fla. 1903). |

The common law rule of a jury of twelve was still kept in Florida

while federal troops remained in the state. There was no provision for

a jury of less than twelve until the Legislature enacted a provision

specifying a jury of six in Chapter 3010, section 6. See Gibson v.

| State, 16 Fla. 291, 297-98 (1877) (quoting and discussing Ch. 3010,

§ 6, Laws of Fla. (1877)); Florida Fertilizer, 34 So. at 241 (noting that

previously all juries had twelve members).

The Legislature enacted chapter 3010 with the jury-of-six provision on February 17, 1877. Gibson, 16 Fla. 294. This was less than

a month after the last federal troops were withdrawn from Florida in

61

January 1877. See Jerrell H. Shofner, Reconstruction and Renewal,

1865-1877, in The History of Florida 273 (Michael Gannon, ed., first

paperback edition 2018) (“there were [no federal troops” in Florida

after 23 January 1877”).

The jury-of-six thus first saw light at the birth of the Jim Crow

era as former Confederates regained power in southern states and ©

state prosecutors made a concerted effort to prevent blacks from

serving on jurors.

On its face the 1868 constitution extended the franchise toblack men. But the historical context shows that that it was part of

the overall resistance to Reconstruction efforts to protect the rights

of black citizens. The constitution was the product of a remarkable

series of events including a coup in which leaders of the white southern (or native) faction took possession of the assembly hall in the

middle of the night, excluding Radical Republican delegates from the

proceedings. See Richard L. Hume, Membership of the Florida Constitutional Convention of 1868: A Case Study of Republican Factionalism -

in the Reconstruction South, 51 Fla. Hist. Q. 1, 5-6 (197 2); Shofner at

266. A reconciliation was effected as the “outside” whites “united with

62

the majority of the body’s native whites to frame a constitution designed to continue white dominance.” Hume at 15.

The racist purpose of the resulting constitution was spelled out

by Harrison Reed, a leader of the prevailing faction and the first governor elected under the 1868 constitution, who wrote to Senator

Yulee that the new constitution was constructed to bar blacks from

legislative office:

Under our Constitution the Judiciary & State officers will

be appointed & the apportionment will prevent a negro legislature.

Hume at 15-16. See also Shofner at 266.

In Ramos, Justice Gorsuch noted that the Louisiana non-urianimity rule arose from Jim Crow era efforts to enforce white supremacy. 140 8.Ct. at 1394; see also id. at 1417 (Kavanaugh, J., concurring) (non-unanimity was enacted “as one pillar of a comprehensive

and brutal program of racist Jim Crow measures against African-

Americans, especially in voting and jury service.”). The history of

Florida’s jury of six arises from the same historical context.

63

In view of the foregoing, a jury of six at a criminal trial for a

crime punishable by up to life imprisonment.is unconstitutional under the Sixth and Fourteenth Amendments of the United States Constitution.

Finally, Crane did not waive his Sixth Amendment right to a

twelve-person jury. A défendant may waive his right to a constitutional jury, but the “express and intelligent consent of the defendant”

is required. Patton, 281 U.S. at 312. See also Johnson v. State, 994

So. 2d 960, 964 (Fla. 2008) (“[T]he State contends that Johnson

waived appellate review of this claim when he failed to request a jury

trial or object to the bench trial during the second phase of the felony

DUI proceeding. We disagree. . . . Johnson’s general silence ... did

not constitute a valid waiver.”).

This Court should reverse the judgment and sentence and remand for a new trial with. a twelve-person jury, as required by the

Sixth and Fourteenth Amendments to the United States Constitu-

tion.

64

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