Petition for Writ of Certiorari — James Deon Bryant, Jr., Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

JAMES DEON BRYANT JR., PETITIONER

v.

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

JAMES DEON BRYANT JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2022-3044

[December 14, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Sarah Willis, Judge; L.T. Case No. 50-2019-CF-010578AXXX-MB.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Melynda L. Melear,

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

PER CURIAM.

Affirmed.

WARNER, CIKLIN and KUNTZ, JJ., concur.

*

*

*

Not final until disposition of timely filed motion for rehearing.

POINT III

DEFENDANT WAS ENTITLED TO A TWELVE PERSON JURY

UNDER THE SIXTH AND FOURTEENTH AMENDMENT AND

DID NOT WAIVE THAT RIGHT.

Standard of Review

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).

Argument

Defendant had the constitutional right to a jury trial because his offense

was punishable by more than 6 months in jail. Baldwin v. New York, 399 U.S.

66, 72-73 (1970). Nevertheless, he was convicted by a jury comprised of only

6 persons. The Sixth and Fourteenth Amendments guarantee the right to a

twelve-person jury when the defendant is charged with an offense punishable

by more than 6 months incarceration.

A.B. v. Florida Dept. of Children &

Family Services, supra.

Defendant can raise this issue for the first time on appeal because the

issue isn’t whether he preserved this issue by objecting in the trial court;

rather, the issue is whether he personally waived his constitutional right to a

twelve-person jury. He did not. For example, even if defense counsel had no

-18-

objection to a five-person jury, but the trial court did not secure the

defendant’s personal waiver of his or her right to a six-person jury, the case

would present reversible error on appeal. Wallace v. State, 722 So. 2d 913,

914 (Fla. 2d DCA 1998); Gamble v. State, 696 So. 2d 420, 420 (Fla. 5th DCA

1997); Blair v. State, 698 So. 2d 1210, 1217-18 (Fla. 1997); see also,

Johnson v. State, 994 So. 2d 960, 963-64 (Fla. 2008) (holding that defendant

must personally waive constitutional right to have jury decide prior-convictions

element in felony DUI case; defense counsel’s stipulation that trial court act

as fact finder is insufficient).

In short, a defendant personally must agree to be tried by a jury with

fewer jurors than constitutionally required. Defendant acknowledges this

Honorable Court came to a different conclusion in Albritton v. State, 48 Fla.

L. Weekly D922 (Fla. 4th DCA opinion filed May 3, 2023). However, this

Honorable Court may have overlooked the holdings in the Wallace, Gamble,

Blair, and Johnson cases.

The U.S. Supreme Court held in Williams v. Florida, 399 U.S. 78, 86

(1970), that juries as small as six were constitutionally permissible. But

Williams is impossible to square with the Court’s ruling in Ramos v. Louisiana,

140 S. Ct. 1390 (2020), which concluded that the Sixth Amendment’s “trial by

-19-

an impartial jury” requirement encompasses what the term “meant at the Sixth

Amendment’s adoption,” id. at 1395. “Defendant enjoys a constitutional right

to demand that his liberty should not be taken from him except by the joint

action of the court and the unanimous verdict of a jury of twelve persons.” Id.

at 1396-9. Defendant’s conviction by a six-person jury violated the Sixth and

Fourteenth Amendments to the United States Constitution.

Defendant acknowledges that this Court rejected this argument in

Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022). This will provide

defendant an avenue for supreme court review under Jollie v. State, 405 So.

2d 418 (Fla. 1981), and will avoid the randomness of the review process. See

id. at 421 (recognizing that “no litigant can guide the district court’s selection

of the lead case” and the citation PCA can avoid the randomness of the

review process).

In rejecting Guzman’s argument, this Court cited State v. Khorrami, 1

CA-CR 20-0088, 2021 WL 3197499 (Ariz. Ct. App. July 29, 2021). Guzman,

350 So. 3d at 73. At the time of this Court’s decision, Khorrami’s petition for

writ of certiorari in the United States Supreme Court was pending. The petition

was subsequently denied, over dissents by Justices Kavanaugh and Gorsuch.

Khorrami v. Arizona, 21-1553, 2022 WL 16726030 (U.S. Nov. 7, 2022).

-20-

Although there is no legal significance to the denial of a petition for writ

of certiorari,1 there are differences between Florida’s and Arizona’s systems

that may account for the denial of the writ.

In Arizona, criminal defendants are guaranteed “a twelve-person jury in

cases when the sentence authorized by law is death or imprisonment for thirty

years or more…. Otherwise, a criminal defendant may be tried with an eightperson jury.” State v. Khorrami, 2021 WL 3197499, at *8 (citations omitted).

Florida juries are smaller (six versus eight), and those smaller juries are

mandated in every case except capital cases.

And the origin of Florida’s rule is disturbing. In his dissent, Justice

Gorsuch observed: “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.”

Khorrami v. Arizona, 2022 WL 16726030, at *5 (Gorsuch, J., dissenting)

(citations omitted). He noted, however, that Arizona’s law was likely motivated

by costs not race. Id. But Florida’s jury of six did arise in that Jim Crow era

See Ramos v. Louisiana, 140 S.Ct. 1390 (2020) at n.56 (“The

significance of a denial of a petition for certiorari ought no longer require

discussion. This Court has said again and again and again that such a

denial has no legal significance whatever bearing on the merits of the

claim.”) (cleaned up).

1

-21-

context of a “deliberate and systematic effort to suppress minority voices in

public affairs.” Id. 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);

Florida Fertilizer, 34 So. at 241.

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 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

-22-

made a concerted 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 effected as 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 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.

-23-

Smaller juries and non-unanimous verdicts were part of a Jim Crow era

effort “to suppress minority voices in public affairs.” Khorrami v. Arizona, 2022

WL 16726030, at *5 (Gorsuch, J., dissenting); see also Ramos, 140 S. Ct. 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.

-24-

IN THE CIRCUIT COURT, FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA

CASE NO: 2019CF0I0578AMB

DIV: Z

OBTS NUMBER:

STATE OF FLORIDA

V.

JAMES DEON BRYANT JR,

B/M,

07/20/2000, REDACTE

] PROBATION VIOLATOR

) COMMUNITY CONTROL VIOLATOR

] RETRIAL

] RESENTENCE

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.!

JUDGMENT

11

The above defendant, being personally before this Court represented by

( attorney)

[ X ]

Having been tried and found

guilty of the following

crime(s):

COUNT

I

[ ]

[ X ]

[ X ]

[ ]

[

]

CRIME

MANSLAUGHTER WITH A FIREARM

11

PUBLIC DEFENDER - DIVISION Z

Having entered a plea of guilty

to the following crime(s):

[

]

Having entered a

plea ofnolo

contendere to the

following crime(s):

OFFENSE STATUTE NUMBER(S)

782.07 and 775.087(1)

DEGREE

1st DEG FEL

and the Court having made a factual finding, the above crime(s) qualify as a crime of domestic violence

pursuant to s. 74 I .28.

and no cause having been shown why the Defendant should not be adjudicated guilty, IT IS ORDERED THAT the

defendant is hereby ADJUDICATED GUILTY of the above crime(s).

and being a qualified offender pursuant to s. 943.325, the Defendant shall be required to submit DNA samples as

required by law.

and good cause being shown: IT IS ORDERED THAT ADJUDICATION OF GUILT BE WITHHELD.

SENTENCE

STAYED

SENTENCE

DEFERRED

] The Court hereby stays and withholds imposition of sentence as to count(s) and places the Defendant on

[ ] probation and/or [ ] Community Control under the supervision of the Dept. Of Corrections

(conditions of probation set forth in separate order).

] The Court hereby defers imposition of sentence until

The Defendant in Open Court was advised of his right to appeal from the Judgment by filing notice of appeal with the Clerk of

Court within thirty days following the date sentence is imposed or probation is ordered pursuant to this adjudication. The

defendant was also advised of his right to the assistance of counsel in taking said appeal at the expense of the State upon showing

of indigency.

~ r t ,t P,1'9 Beach Coonty, Flodd,, this 18'" day of Octnb<', 2022.

.., ..___.I

CIRCUIT COURT JUDGE

~~

\ /L

F I LE D

Circuit Criminal Department

OCT 18 2022

JOSEPH ABRUZZO

Clerk of the Circuit Court & Comptroller

Palm Beach County

000321

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA

SENTENCE

(As to Count(s) _ _ _1_ _ _ _)

Defendant:JetW

la>n "6n1artf-S(L

J

Case Number:Jtiq(!F 0/6518Af)l}-l

OBTS Number:

8

------------

The Defendant, being personally before this Court, accompanied by the defendant's attorney of record, -=t--"=',q..::::....,___-"--"'"""-------'

and having been adjudicated guilty herein, and the Court having given the Defendant an opportunity to

e

and to offer matters in

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

IT IS THE SENTENCE OF THE COURT that:

The Defendant pay a fine of$_ _ _ pursuant to§ 755.083, Florida Statutes, plus$___ as the 5% surcharge required by section

938.04, Florida Statutes.

The Defendant is

flreby committed to the custody of the

Department of Corrections

] Sheriff of Palm Beach County, Florida

4--'

\[~D~artme~tfCorrections as a youthful offender

~~

For a term of J l,,

It is further ordered that the Defendant shall be allowed a total of ___ Mys as credit for time

incarcerated prior to irnposition~this sentence. It is further ordered that the composite term of all sentences imposed for the counts

specified in the order shall run

[ ] consecutive to [ ] concurrent with (check one) the following:

[ ]

Any active sentence being served.

[ ]

Specific sentences: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

:fe[,\

[ ]

The instant sentence is based upon the Court having previously placed the Defendant on probation and having

subsequently revoked the Defendant's probation for violation(s) ofcondition(s)_ _ _ _ _ __

In the event the above sentence is to the Department of Corrections, the Sheriff of Palm Beach County, Florida is hereby ordered and

directed to deliver the Defendant to the Department of Corrections together with a copy of the Judgment and Sentence, and any other

documents specified by Florida Statute. Additionally, pursuant to §947.16(4), Florida Statutes, the Court retains jurisdiction over the

Defendant.

[ ]

The Sentencing Court objects to the Defendant being placed into the Youthful Offender Basic Training Program pursuant to

Florida Statute §958.045.

[ ]

Pursuant to §322.055, 322.056, 322.26, 322.274, Florida Statutes, The Department of Highway Safety and Motor Vehicles is

directed to revoke the Defendant's privilege to drive. The Clerk of the Court is Ordered to report the conviction and revocation

to the Department of Highway Safety and Motor Vehicles.

DONE AND ORDERED in Open

c~,~~o

Beach, Palm Beach County, Florida this

Circuit Criminal Department

lt?

day of

Oa±-

,20~

~

OCT 18 2022

JOSEPH ABRUZZO

~CUITJUDGE

Clerk of the Circuit Court & Comptroller

Palm Beach County

Form 14

October 2019

000323