Petition for Writ of Certiorari — Jimmie Jerome Manning, Jr., Petitioner v. Florida

Supreme Court briefNov 15, 2023

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NO.

IN THE SUPREME COURT OF THE UNITED STATES

JIMMIE JEROME MANNING, JR.,

PETITIONER,

STATE OF FLORIDA,

RESPONDENT.



ON PETITION FOR A WRIT OF CERTIORARI TO

THE SECOND DISTRICT COURT OF APPEAL OF FLORIDA

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

HOWARD L. “REX” DIMMIG II

PUBLIC DEFENDER

10TH JUDICIAL CIRCUIT, APPELLATE

DIVISION

P. O. BOX 9000

BARTOW, FL 33830 9000

TEL: 863.534.4200

EHOVIS@PD10.ORG

APPEALFILINGS@PD10.ORG

SAPD@PD10.ORG

BENEDICT P. KUEHNE

COUNSEL OF RECORD

MICHAEL T. DAVIS

SUSAN DMITROVSKY

SPECIAL ASSISTANT PUBLIC DEFENDER

KUEHNE DAVIS LAW, P.A.

100 S.E. 2 STREET, SUITE 3105

MIAMI, FL 33131

TEL: 305.789.5989

EFILING@KUEHNELAW.COM

APPEALFILINGS@PD10.STATE.FL.US

INDEX OF APPENDIX

Appellate Decision, Manning v. State, Florida Second District (9-1-2023) …………. 1

Denial of Certification on Rehearing (10-11-2023) ……………………………………… 2

Pretrial Hearing Transcript (11-16-2021) ………………………………………………... 3

Judgment and Sentence ……….……………………………………………………………. 6

Corrected Initial Brief (Redacted) ……………………………….………………………… 7

Motion for Certification ……………………………………………………………………. 18

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JIMMIE JEROME MANNING,

Appellant,

STATE OF FLORIDA,

Appellee.

No. 2D22-11

September 1, 2023

Appeal from the Circuit Court for Pasco County; Mary M. Handsel,

Judge.

Howard L. Dimmig, II, Public Defender, and Benedict P. Kuehne and

Michael T. Davis, Special Assistant Public Defenders, Bartow, for

Appellant.

Ashley Moody, Attorney General, Tallahassee, and James A. Hellickson,

Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Affirmed.

SLEET, C.J., and VILLANTI and BLACK, JJ., Concur.

Opinion subject to revision prior to official publication.

App. 1

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

SECOND DISTRICT

1700 N. TAMPA STREET, SUITE 300, TAMPA, FL 33602

October 11, 2023

CASE NO.: 2D22-0011

L.T. No.: 18-CF-4007

JIMMIE JEROME MANNING

Appellant / Petitioner(s),

STATE OF FLORIDA

Appellee / Respondent(s).

BY ORDER OF THE COURT:

Appellant's motion for certification of question of great public importance and for

issuance of written opinion on unaddressed point is denied.

I HEREBY CERTIFY that the foregoing is a true copy of the original court order.

mep

Served:

ATTORNEY GENERAL, TAMPA

HOWARD L. DIMMIG, I I, P. D.

MICHAEL TERRELL DAVIS, ESQ.

JIMMIE JEROME MANNING

BENEDICT P. KUEHNE, ESQ.

JAMES AARON HELLICKSON, A.A.G.

P.D.10 S.A.P.D.

PASCO CLERK

App. 2

Filing# 154929226 E-Filed 08/09/2022 09:48:00 AM

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, STATE OF FLORIDA

STATE OF FLORIDA,

Plaintiff,

vs.

CASE NUMBER: 2018CF004007CFAXWS

JIMMIE JEROME MANNING, JR.,

Defendant.

_______________________________ /

PROCEEDINGS:

Pretrial Conference

DATE:

November 16, 2021

BEFORE:

HONORABLE MARY HANDSEL

Circuit Court Judge

PLACE:

Pasco County Government Center

7530 Little Road

New Port Richey, Florida 34564

REPORTER:

Heidi L. Miller

Digital Court Reporter

Administrative Office of the Courts

Office of Digital Court Reporting

Pasco County Judicial Center

7530 Little Road

New Port Richey, Florida 34654

(727)847-8156

Electronically Filed Pasco Case# 2018CF004007CFAXWS 08/09/2022 09:48:00 AM

App. 3

PAGE 469

P R 0 C E E D I N G S

MR. FISCHETTI:

I did want to let the Court

know and I'm happy to hear any of the Court's input

as well.

here.

capital offense even though obviously death is not

a potential punishment based on the case law and

the history in these types of cases, but he is

charged with a capital offense.

I was doing some research as we came in

The way Mr. Manning is charged is as a

So in reviewing some of the things,

it's my

belief that unless the Defense waives the right to

be a 12-member jury, that that's something that the

Court would have to do.

that to the Court's attention as far as --

THE COURT:

So I just wanted to bring

That's not true.

There's case law

that says that's not true.

you said that, but I've done enough of these that I

know what the case law says.

not say that I have to do a 12-man jury.

law says that it's six unless he can get death, and

he can't get death.

So yes,

life but it's six.

and I've had people raise this before both as a

prosecutor and a judge and the case law is pretty

it's capital.

So I appreciate that

And the case law does

The case

Yes, he's looking at

So I've done this for 30 years

App. 4

PAGE 471

clear.

the Supreme Court, it will be six.

one way or another we still have enough jurors.

I mean, unless you have a new case from

to go with witnesses and evidence?

MR. FISCHETTI:

THE COURT:

Okay.

MS. VERGOS:

Yes, Judge.

THE COURT:

We're good?

MS. VERGOS:

Yes.

THE COURT:

Okay.

But, you know,

So other than the jury question are you ready

So,

Yes, Your Honor.

Ms. Vergos?

We'll be ready to

go.

Will there be any pretrial

motions that you're going to be raising, motions in

limine, Counsel?

MR. FISCHETTI:

Judge, there's one matter that

I think, depending on the State's presentation of

the evidence, that we would need to address

regarding Mr. Manning's detention in Tampa.

there would be probably one matter that we would

have to bring up.

THE COURT:

State, are you going to bring up

his detention in Tampa?

MS. VERGOS:

I am.

THE COURT:

Okay.

MS. VERGOS:

Judge, the Defendant after the

What's that all about?

App. 5

PAGE 472

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

Case Number: 2018CF004007CFAXWS

State of Florida

JIMMIE JEROME MANNING JR

SENTENCING ORDER

(As To Count 1 & 2)

The Defendant, being personally before this court and accompanied the defendant's attorney of record, Daniel P Fischetti, and

having been adjudicated guilty herein, and the court having given the Defendant an opportunity to be heard and to offer matters in

mitigation of sentence, and to show cause why the Defendant should not be sentenced as provided by law, and no cause being

shown

0 and the Court having on

deferred imposition of sentence until this date

0 and the Court having previously entered a judgment in this case on

now

resentences the Defendant

0 and the Court having placed the Defendant on probation I community control and having subsequently revoked the

defendant's probation I community control. The Court found the defendant in violation of specific conditions of

probation/community control, see attached affidavit.

It is The Sentence Of The Court That:

0 The Defendant pay a fine of

$ 6.28

125.72

pursuant to section 775.083, Florida Statutes, plus

(5% as the surcharge) required by section 938.04, Florida Statutes.

0 The Defendant is hereby committed to the custody of the Department of Corrections.

0 The Defendant is hereby committed to custody of the Sheriff of Pasco County, Florida.

_Option A

_Option B

Unless otherwise prohibited by law, the Sheriff is authorized to release the defendant on electronic

monitoring or other sentencing programs subject to the Sheriffs discretion.

The Sheriff is not authorized to release the defendant on electronic monitoring or other sentencing

programs.

0 The Defendant is sentenced as a youthful offender in accordance with section 958.04, Florida Statutes.

To Be Imprisoned (Check one; unmarked sections are inapplicable):

0 For a term of natural life. ·

0 For a term o f - - - - - - - - - - - - 0 Said SENTENCE SUSPENDED for a period of

Subject to conditions set forth in this order.

If "split" sentence, complete the appropriate paragraph.

Followed by a period of

Community Control/ Probation under the supervision

D of

the Department of Corrections according to the terms and conditions of supervision set forth in a separate order entered

herein.

0 However, after serving a period of

Imprisoned i n - - - - - - - - - - - - - the balance of the sentence shall be suspended and the Defendant shall be placed on probation I community control

for a period of

under the supervision of the Department of Corrections according to terms

and conditions of supervision set forth in a separate order entered herein.

In the event the Defendant is ordered to serve additional split sentences, all incarceration portions shall be satisfied before the

Defendant begins service of the supervision terms.

App. 6

PAGE 262

Page 262

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA, SECOND DISTRICT

CASE NO. 2D22-0011

Lower Tribunal Case No. 2018-CF-4007CFAXWS

_________________________

JIMMIE JEROME MANNING JR.,

Appellant,

versus

STATE OF FLORIDA,

Appellee.

_________________________

ON DIRECT APPEAL FROM THE CIRCUIT COURT

OF THE SIXTH JUDICIAL CIRCUIT, PASCO COUNTY

MARY M. HANDSEL, CIRCUIT JUDGE.

_________________________

CORRECTED AND REDACTED INITIAL BRIEF OF APPELLANT

JIMMIE JEROME MANNING JR.

_________________________

SUSAN DMITROVSKY

Florida Bar No. 0073296

Of Counsel

BENEDICT P. KUEHNE

Florida Bar No. 233293

MICHAEL T. DAVIS

Florida Bar No. 63774

Special

Assistant

Public

Defender,

6th

Judicial

Circuit, Appellate Division

P. O. Box 9000

Bartow, FL 33830-9000

efiling@kuehnelaw.com

appealfilings@pd12.state.fl.us

Counsel for Appellant Manning

App. 7

TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................... i

TABLE OF AUTHORITIES .............................................................. iii

PROCEDURAL HISTORY. ............................... 1

FACTUAL RECITATION. ................................. 2

Overview. ....................................................... 2

Child Hearsay Hearing. .................................. 4

Relevant Trial Testimony. ............................. 13

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ........... 24

SUMMARY OF THE ARGUMENT .................................................. 24

ARGUMENT ................................................................................. 25

POINT 1 ....................................................................................... 25

THE TRIAL COURT ABUSED ITS DISCRETION IN

ADMITTING CHILD HEARSAY STATEMENTS WITHOUT

SUFFICIENT FINDINGS OR FACTS SUPPORTING

TRUSTWORTHINESS AND RELIABILITY. ............................. 25

............................... 27

Inconsistencies in Hearing Testimony. ......... 27

Statements to Wanda Manning. ................... 27

Statements to Officer Grant. ........................ 28

Statements to Detective Contreras. .............. 28

Statements

Child

Protection

Investigator Orr. .......................................... 30

App. 8

Lack of Factual Analysis. ............................. 38

The Sources of the Information Through

Which the Statements Were Reported Do

Not Indicate Trustworthiness. ...................... 40

The Timing, Content and Circumstances

Surrounding the Statements Did Not

Safeguard Their Reliability. .......................... 43

The Probative Value of Child Hearsay Is

Outweighed by Unfair Prejudice. .................. 47

POINT 2 ....................................................................................... 50

BECAUSE THE EVIDENCE WAS INSUFFICIENT TO

SUPPORT THE SEXUAL BATTERY CONVICTIONS, THE

COURT ERRED REVERSIBLY BY DENYING THE

ACQUITTAL. ......................................................................... 50

No Competent, Substantial Evidence of

Penetration or Union. ................................... 51

POINT 3 ....................................................................................... 59

THE TRIAL COURT ERRED IN UTILIZING A SIX-PERSON

JURY FOR A CAPITAL FELONY PUNISHABLE BY A

MANDATORY

LIFE

SENTENCE

WITHOUT

THE

POSSIBILITY OF PAROLE..................................................... 59

CONCLUSION .............................................................................. 65

CERTIFICATE OF COMPLIANCE .................................................. 66

CERTIFICATE OF SERVICE.......................................................... 66

App. 9

(

of-court statements inconsistent with testimony and not supported

by other proper corroborating evidence); Berber v. State, 887 So. 2d

1248 (Fla. 2004) (videotaped CPT interview of then-6-year-old

admitted at trial, now 8-year-old stated defendant had touched his

penis only with his hand not mouth; child hearsay inconsistent with

trial testimony legally insufficient to convict where tended to refute

videotaped testimony). But see Godbolt v. State, 319 So. 3d 773, 775

(Fla. 1st DCA 2021) (victim did not completely repudiate or recant

prior out-of-court statements at trial; charges did not depend solely

contradicted prior statements).

The applicable evidentiary standard does not support a finding

of a competent, substantial basis for the verdicts. Considerable

contradictions between the in-court testimony and inconsistencies in

-of-court statements cloud the adequacy of the evidence.

A reversal and a discharge for insufficient evidence is required.

POINT 3

THE TRIAL COURT ERRED IN UTILIZING A SIX-PERSON

JURY FOR A CAPITAL FELONY PUNISHABLE BY A

App. 10

MANDATORY LIFE SENTENCE WITHOUT THE POSSIBILITY

OF PAROLE.7

The defendant asks this Court to certify this question as a

matter of great public importance in view of the evolving judicial

analysis of the constitutional and statutory requirement for a 12person jury for legislatively defined capital prosecutions. The error

arising from proceeding with a six-person jury for a legislatively

denominated

capital

offense

has

significant

constitutional

implications.

The defendant was charged with two counts of § 794.011(2) (a),

a legislatively defined capital felony (R:29). During the November 16,

2021 pretrial conference (SSR:469), the defense requested a 12person jury based on the capital charges he faced (SRR:471). He

never waived his right to a jury of twelve. But the trial court denied

the motion and, in the process, rebuked defense counsel (SRR:471472).

7 Even if the court considered that the death penalty was inapplicable, the

defendant did not waive his right to be tried before a twelve-person jury for a

capital case, and the trial court should not have allowed the case to proceed with

a six-person jury. See Johnson v. State, 289 So. 3d 986, 987 (Fla. 1st DCA 2020)

(citing State v. Wong, 271 So. 3d 74, 75 (Fla. 3d DCA 2019)).

App. 11

Florida law requires a twelve-person jury for

while requiring six jurors for

capital cases

ll other criminal cases

Phillips v.

State, 316 So. 3d 779, 786 (Fla. 1st DCA 2021); § 913.10, Fla. Stat.

(2017). According to the Florida Legislature, a person eighteen years

or older who commits a sexual battery on a person less than twelve

life in prison without the possibility of parole. Id. (citing §§

775.082(1)(a), 794.011(2)(a), Fla. Stat. (2017)). But, contrary to this

explicit legislative prescription, the Eighth Amendment denied the

imposition of the death penalty for a non-death crime, according to

the Supreme Court. Id.; Kennedy v. Louisiana, 554 U.S. 407, 413,

128 S. Ct. 2641 (2008); Buford v. State, 403 So. 2d 943, 954 (Fla.

1981).

In State v. Griffith, 561 So. 2d 528, 529 (Fla. 1990), the Florida

Supreme Court recognized that neither the prosecutor nor the court

of an offense from capital to

noncapital and unilaterally determine whether a defendant is entitled

to trial by a twelve-

Johnson v. State, 289 So. 3d 986,

987 (Fla. 1st DCA 2020). Because the Legislature declared in §

App. 12

913.10 that a twelve-per

to a twelve-person jury. See Phillips, 316 So. 3d at 786.

The defendant acknowledges the Florida Supreme Court

rejected this argument. See State v. Hogan, 451 So. 2d 844, 845 (Fla.

1984)). In Hogan

Id. at 786 (citing

Hogan, at 845). Although sexual battery of a child under twelve

construes the plain text of the statute to mean the crime is not a

Buford and Kennedy.

interpretations of the clear and mandatory text of legislation, it is

time for the Florida Supreme Court to revisit the Hogan precedent.

See Hall v. State, 853 So. 2d 546, 547 (Fla. 1st DCA 2003) (defendant

not entitled to 12-person jury because death penalty not possible as

a matter of law; appellate court certified ruling as question of great

public importance); Lessard v. State, 232 So. 3d 13 (Fla. 1st DCA

App. 13

2017) (declining request for certification); Phillips v. State, 316 So. 3d

779 (Fla. 1st DCA 2021) (same).

In his powerful concurrence in Lessard v. State, 232 So. 3d 13,

(Fla. 1st DCA 2017), District Judge Makar states a compelling case

for Hogan

Florida is the only state that requires six-member

juries in life-felony cases, such as [capital sexual battery],

and the empirical studies continue to discredit the

Williams [v. Florida, 399 U.S. 78, 90 S. Ct. 1893 (1970)],

decision, but the relief Lessard seeks is a jurisprudential

dark horse.

Judge Makar described the Williams reasoning

foundered on

glaring misinterpretations of social science research and inept

methodologies, so much so that one prominent commentator said the

quality of social science scholarship displayed [in the

decisions on jury size] would not win a passing grade in a high school

psychology class.

Lessard, 232 So. 3d at 14. See also Adaway v.

State, 902 So. 2d 746, 755 (Fla. 2005) (Pariente, C.J., concurring

with Anstead, J. (urging Fla. R. Crim. Pro. 3.270 be amended to

require 12-person jury if capital sexual battery remains capital

felony) (citing Palazzolo v. State, 754 So. 2d 731, 737 (Fla. 2d DCA

App. 14

2000) (evidence in capital sexual battery trial can be much more

tenuous than in murder trial, often resting largely on victim

testimony and hearsay statements)).

With most states still choosing 12-person, unanimous juries to

convict in serious criminal cases, Florida and Connecticut are the

anomalies. Lessard, 232 So. 3d at 17. Florida is one of only two states

that use six jurors to decide the outcome of capital cases when life is

a mandatory sentence upon conviction. See Gonzalez v. State, 982

So. 2d 77, 78 n.2 (Fla. 2d DCA 2008). See also Alisa Smith & Michael

J. Saks, The Case for Overturning Williams v. Florida and the SixPerson Jury: History, Law, and Empirical Evidence, 60 Fla. L. Rev.

441, 443 (2008).

The Florida Supreme Court recently underscored the judicial

deference to the textual language used by the Legislature. The

precedential development presents a significant and important

statewide question concerning the legislative definition of a capital

case as applied to the defendant and other similarly situated capital

case defendants. The Florida Supreme Court declared in Ham v.

Portfolio Recovery Associates, LLC, 308 So. 3d 942, 946-47 (Fla.

App. 15

2020), that

ofof a governing text are of paramount concern, and what

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 56 (2012). We also adhere to

[a legal text] is to be expounded in its plain, obvious, and

common sense, unless the context furnishes some ground

Advisory Op. to Governor

re Implementation of Amendment 4, the Voting Restoration

Amendment, 288 So. 3d 1070, 1078 (Fla. 2020) (quoting

Joseph Story, Commentaries on the Constitution of the

United States 157-58 (1833), quoted in Scalia & Garner,

Reading Law at 69).

This Court should certify this or a similar question of great

importance to the Florida Supreme Court:

SHOULD DEFENDANTS IN FLORIDA CHARGED WITH

CAPITAL SEXUAL BATTERY OF A CHILD BE TRIED BY

A TWELVE-PERSON JURY?

CONCLUSION

Because the child hearsay statements were inadmissible, the

convictions should be vacated and remanded for a new trial. The

capital sexual battery convictions should be vacated for

insufficient evidence, and the case should be remanded for a new

trial, or the offenses of conviction reduced to lewd and lascivious

App. 16

molestation.

s should be

vacated, and the case remanded for a new trial based on the absence

of a constitutional foundation for denying the defendant a 12-person

jury for capital sexual battery.

CERTIFICATE OF COMPLIANCE

This brief complies with the requirements of Rules 9.045 and

9.210(a)(2) of the Florida Rules of Appellate Procedure. It is printed

in Bookman Old Style 14-point font and contains 12,840 words.

CERTIFICATE OF SERVICE

I certify the foregoing was filed with the Florida e-Filing portal

and emailed August 17, 2021, to:

Jeffrey Siegal

Assistant Attorney General

Concourse Center #4

3507 Frontage Rd., Suite 200

Tampa, FL 33607

Tel: 813.287.7900

Fax: 813.281.5500

Public Defender

10th Judicial Circuit

Appellate Division

P. O. Box 9000

Bartow, FL 33830-9000

Tel: 863.534.4200

Fax: 863.534.4355

appealfilings@pd10.org

MWilliamson@pd10.org

Jeffrey.Siegal@myfloridalegal.com

crimapptpa@myfloridalegal.com

Respectfully submitted,

App. 17

Filing # 182085565 E-Filed 09/18/2023 11:39:09 PM

IN THE DISTRICT COURT OF APPEAL OF FLORIDA,

SECOND DISTRICT

CASE NO. 2D22-0011

Lower Tribunal Case No. 2018-CF-4007CFAXWS (Pasco County)

JIMMIE JEROME MANNING JR.,

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________/

APPELLANT=S MOTION FOR CERTIFICATION OF QUESTION OF

GREAT PUBLIC IMPORTANCE AND FOR ISSUANCE OF

WRITTEN OPINION ON UNADDRESSED POINT

Appellant Jimmie Jerome Manning, Jr., pursuant to Rule 9.330

of the Florida Rules of Appellate Procedure, seeks issuance of a

written opinion on the unaddressed point challenging a six-person

jury for a capital felony, as well as the certification of that same

question of great public importance from the per curiam decision

rendered on September 1, 2023 (attached). Rehearing in the form of

a written opinion or certification is necessary so the Florida Supreme

Court can revisit the constitutional authority requiring 12-person

juries for all capital felonies. The constitutional parameters of jury

composition in criminal cases is a question of great public

importance that is being considered by the U.S. Supreme Court in

Page 1 of 18

App. 18

two pending certiorari petitions. Whether the Sixth and Fourteenth

Amendments to the U.S. Constitution guarantee the right to a trial

by a 12-person jury when charged with a capital felony is a

fundamental question that is ripe for review by the Florida Supreme

Court. The precedent supporting a reduced-size jury of six in

Williams v. Florida, 399 U.S. 78 (1970), has been effectively

invalidated by Ramos v. Louisiana, 140 S. Ct. 1390 (2020),

recognizing 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. What that term meant then, as

now, is a jury of twelve. As the U.S. Supreme Court stated in Ramos,

Blackstone recognized that under the 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.

REQUIRED STATEMENT FOR WRITTEN OPINION.

I express a belief, based on a reasoned and studied professional

judgment, that a written opinion on an issue not addressed by the

panel will provide a legitimate basis for supreme court review of an

Page 2 of 18

App. 19

express construction of a provision of the U.S. Constitution, as

authorized by Rule 9.030(a)(2)(A)(ii) of the Florida Rules of Appellate

Procedure. Florida precedent allowing 6-person juries in non-murder

capital cases, State v. Hogan, 451 So. 2d 844, 845 (Fla. 1984), is

incompatible with prevailing U.S. Supreme Court precedent and is

inconsistent with the purpose and meaning of the Sixth and

Fourteenth Amendments to the U.S. Constitution, thus providing a

timely and justified opportunity for Florida Supreme Court review.

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

specially concurring) (conviction by six-person jury of sexual battery

on a child under 12 years old did not violate Sixth and Fourteenth

Amendments), rev. denied, 2023 WL 3830251 (Fla. 2023); Hall v.

State, 853 So. 2d 546, 547 (Fla. 1st DCA) (defendant not entitled to

12-person jury because death penalty not possible as a matter of law;

appellate court certified ruling as question of great public

importance), rev. denied, 865 So. 2d 480 (Fla. 2003); Lessard v. State,

232 So. 3d 13 (Fla. 1st DCA 2017) (declining request for certification).

The Supreme Court is currently considering whether to grant

certiorari review on this very question in two pending petitions

Page 3 of 18

App. 20

originating from Florida courts. In both cases, the U.S. Supreme

Court directed the State of Florida to respond to the petitions, a signal

that the Court considers the question to be significant. E.g., Crane v.

State of Florida, U.S. Supreme Court Case No. 23-5455 (on

September 18, 2023, Court requested State of Florida to respond to

the petition); Cunningham v. State of Florida, U.S. Supreme Court

Case No. 23-5171 (on August 8, 2023, Court directed State of Florida

to respond to the petition). Both certiorari petitions ask the same

question that is at issue in this case: Whether the Sixth and

Fourteenth Amendments guarantee the right to a trial by a 12-person

jury when the defendant is charged with a felony?

The Supreme Court declared in Thompson v. Utah, 170 U.S.

343, 349-350 (1898), that since the time of the Magna Carta, the

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

Given that 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.

The Supreme Court continued to cite the basic principle that

Page 4 of 18

App. 21

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

for seventy more years. 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 Supreme 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). 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,

391U.S.145, 151-152 (1968).

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

Page 5 of 18

App. 22

intent of the Framers” and the Supreme 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).

Fundamentally, 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 justice to

the “commonsense judgment of a group of laymen” and thus 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 function could just as easily be performed with six

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

441 U.S. 130, 137 (1979) (acknowledging that Williams and its

Page 6 of 18

App. 23

progeny “departed from the strictly historical requirements of jury

trial”).

Williams’s ruling that the Sixth Amendment (as incorporated

into 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

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

Rather, 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.

Page 7 of 18

App. 24

As the history summarized 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 140 S. Ct. at

1395 (quotation marks omitted).

Florida Supreme Court precedent is decidedly in favor of a

textualist construction of the Constitution as of the time of its

adoption. The Florida Supreme Court recently underscored the

judicial deference to the textual language used by the Legislature.

The Court’s precedential undertaking presents a significant and

important statewide question concerning the legislative definition of

a capital case as applied to the defendant and other similarly situated

capital case defendants. The Florida Supreme Court declared in Ham

v. Portfolio Recovery Associates, LLC, 308 So. 3d 942, 946-47 (Fla.

2020)

In interpreting the statute, we follow the “supremacyof-text principle”—namely, the principle that “[t]he words

of a governing text are of paramount concern, and what

they convey, in their context, is what the text means.”

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 56 (2012). We also adhere to

Justice Joseph Story’s view that “every word employed in

[a legal text] is to be expounded in its plain, obvious, and

Page 8 of 18

App. 25

common sense, unless the context furnishes some ground

to control, qualify, or enlarge it.” Advisory Op. to Governor

re Implementation of Amendment 4, the Voting Restoration

Amendment, 288 So. 3d 1070, 1078 (Fla. 2020) (quoting

Joseph Story, Commentaries on the Constitution of the

United States 157-58 (1833), quoted in Scalia & Garner,

Reading Law at 69).

Even setting aside Williams’s disfavored functionalist logic, its

ruling suffered from another flaw: it was based on research that was

out of date shortly after the opinion was issued. Specifically, the

Williams Court “f[ou]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.” Id. at 100.

The Court theorized that “in practice the difference between the 12man and the six-man jury in terms of the cross-section of the

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

In the time since Williams, that determination has proven

woefully inaccurate. The Supreme Court acknowledged as much

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

Page 9 of 18

App. 26

observed that empirical studies conducted in the handful of

intervening years highlighted several problems with Williams’s

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 “d[id] 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 id. at 24546 (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

Page 10 of 18

App. 27

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.

A written opinion on this important question allows the Florida

Supreme Court to evaluate precedent and practical issues arising

from a 6-person jury system. Studies indicate that twelve-member

juries deliberate longer, recall evidence better, and rely less on

Page 11 of 18

App. 28

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

thoroughly expressed in a larger jury, as “having a large minority

helps

make

the

minority

subgroup

influential,”

and,

unsurprisingly, “the chance of minority members having allies is

greater on a twelve-person jury.” Id. at 466. Finally, larger juries

deliver more predictable results. In the civil context, for example,

“[s]ix-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.

Smaller juries and non-unanimous verdicts resulted from the

prevalence of Jim Crow era efforts “to suppress minority voices in

public affairs.” Khorrami v. Arizona, 598 U.S. __, 143 S. Ct. 22, 27

(2022) (Gorsuch, J., dissenting) (“During the Jim Crow era, some

States restricted the size of juries and abandoned the demand for a

unanimous verdict as part of a deliberate and systematic effort to

suppress minority voices in public affairs.”).

This is Florida’s history just waiting for Florida Supreme Court

Page 12 of 18

App. 29

reevaluation. In 1875, the Jury Clause of the 1868 Florida

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, Laws of Florida (1877). See

Gibson v. State, 16 Fla. 291, 297-98 (1877); Florida Fertilizer, 34 So.

at 241.

The Florida Legislature enacted chapter 3010 with the jury-ofsix 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 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

Page 13 of 18

App. 30

effort to prevent blacks from serving on jurors.

On its face, the 1868 constitution extended the franchise to

black men. But the historical context shows 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

(1972); Shofner at 266. A reconciliation was made possible when the

“outside” whites “united with the majority of the body’s native whites

to frame a constitution designed to continue white dominance.”

Hume at 15.

The 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

Page 14 of 18

App. 31

office: “Under our Constitution the Judiciary & State officers will be

appointed & the apportionment will prevent a negro legislature.”

Hume, 15-16. See also Shofner 266.

Issuing a written opinion on the constitutionality of six-person

juries for capital felonies will enable the Florida Supreme Court to

review an important decision that expressly construes a provision of

the United States Constitution. The time to grapple with the Williams

legacy is now.

REQUESTED CERTIFICATION TO THE FLORIDA

SUPREME COURT OF A QUESTION OF GREAT PUBLIC

IMPORTANCE.

The following question of great public importance should be

certified to the Florida Supreme Court:

Do the Sixth and Fourteenth Amendments guarantee the

right to a trial by a 12-person jury when the defendant is

charged with a capital felony?

By: S/ Benedict P. Kuehne

BENEDICT P. KUEHNE

Florida Bar No. 233293

GRANTING REHEARING TO ISSUE A WRITTEN

OPINION OR CERTIFY A QUESTION OF GREAT PUBLIC

IMPORTANCE.

This appeal involves an issue of great public importance to the

fundamental principles of constitutional construction and the

definition of what is meant by a trial by jury. The Florida Supreme

Page 15 of 18

App. 32

Court should be given an opportunity to revisit Williams in light of

the U.S. Supreme Court’s recognition that the Williams Court relied

on misinformation and a strained analysis when approving sixperson juries in criminal cases.

CERTIFICATE OF COMPLIANCE

This filing complies with the requirements of Rules 9.045 and

9.210(a)(2) of the Florida Rules of Appellate Procedure. It is printed

in Bookman Old Style 14-point font and contains 2,953 words as

counted by MS Word.

Respectfully submitted,

HOWARD L. “REX” DIMMIG, II

Public Defender

10th Judicial Circuit

Appellate Division

P. O. Box 9000

Bartow, FL 33830-9000

Tel: 863.534.4200

Fax: 863.534.4355

MWilliamson@pd10.org

appealfilings@pd10.org

SAPD@pd10.org

S/ Benedict P. Kuehne

BENEDICT P. KUEHNE

KUEHNE DAVIS LAW, P.A.

Florida Bar No. 233293

Special Assistant Public Defender

Polk County Courthouse 3rd Floor

225 North Broadway

P. O. Box 9000-PD

Bartow, FL 33831

Tel: 863.534.4200

ben.kuehne@kuehnelaw.com

efiling@kuehnelaw.com

Page 16 of 18

App. 33

CERTIFICATE OF SERVICE

I CERTIFY the foregoing was efiled through the Florida eFiling

Portal and served to all counsel on September 18, 2023, to:

James A. Hellickson

Assistant Attorney General

Concourse Center #4

3507 Frontage Rd., Suite 200

Tampa, FL 33607

Tel: 813.287.7900

Fax: 813.281.5500

James.Hellickson@myfloridalegal.com

Ana.Lopez@myfloridalegal.com

CrimAppTPA@myfloridalegal.com

Howard L. “Rex” Dimmig, II

Public Defender

10th Judicial Circuit

Appellate Division

P. O. Box 9000

Bartow, FL 33830 9000

Tel: 863.534.4200

Fax: 863.534.4355

appealfilings@pd10.org

mwilliamson@pd10.org

S/ Benedict P. Kuehne

BENEDICT P. KUEHNE

Page 17 of 18

App. 34

HOWARD L. “REX” DIMMIG II

PUBLIC DEFENDER

10TH JUDICIAL CIRCUIT, APPELLATE

DIVISION

P. O. BOX 9000

BARTOW, FL 33830 9000

TEL: 863.534.4200

EHOVIS@PD10.ORG

APPEALFILINGS@PD10.ORG

SAPD@PD10.ORG

BENEDICT P. KUEHNE

COUNSEL OF RECORD

MICHAEL T. DAVIS

SUSAN DMITROVSKY

SPECIAL ASSISTANT PUBLIC DEFENDER

KUEHNE DAVIS LAW, P.A.

100 S.E. 2 STREET, SUITE 3105

MIAMI, FL 33131

TEL: 305.789.5989

EFILING@KUEHNELAW.COM

APPEALFILINGS@PD10.STATE.FL.US

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.