Petition for Writ of Certiorari — Christopher Michael Bullins Croce, Petitioner v. Florida

No.

IN THE SUPREME COURT OF THE UNITED STATES

CHRISTOPHER CROCE, PETITIONER

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR A WRIT OF CERTIORARI

CAREY HAUGHWOUT

Public Defender

Gary Lee Caldwell

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421ThirdStreet

WestPalm Beach, FL 33401

(561) 355–7600

gcaldwel@pd15.org

jwalsh@pd15.org

appeals@pd15.org

QUESTION PRESENTED

I. 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?

II. Whether Florida’s stalking statute violates the First

Amendment and Fourteenth Amendments under Counterman v.

Colorado, 600 U.S. 66 (2023).

i

RELATED PROCEEDINGS

The proceeding listed below is directly related to the abovecaptioned case in this Court:

Croce v. State, 379 So. 3d 1153 (Fla. 4th DCA 2024) (Table).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................. i

RELATED PROCEEDINGS .............................................................. ii

TABLE OF AUTHORITIES ...............................................................iv

OPINION BELOW ........................................................................... 1

JURISDICTION ............................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS ........................ 2

STATEMENT OF THE CASE ........................................................... 5

REASONS FOR GRANTING THE PETITION ..................................... 6

I. The reasoning of Williams v. Florida has been rejected, and the

case should be overruled. ............................................................ 6

II. Petitioner was convicted under a facially unconstitutional

statute. ...................................................................................... 18

CONCLUSION .............................................................................. 25

INDEX TO APPENDICES

A. District Court’s Decision .......................................................... 1a

B. Order Denying Rehearing ......................................................... 2a

C. Excerpts from Initial Brief ........................................................ 3a

iii

TABLE OF AUTHORITIES

Cases

Apodaca v. Oregon, 406 U.S. 404 (1972) ....................................... 10

Baldwin v. New York, 399 U.S. 117 (1970) ..................................... 9

Ballew v. Georgia, 435 U.S. 223 (1978)............................. 11, 12, 13

Burch v. Louisiana, 441 U.S. 130 (1979) ......................................... 9

Counterman v. Colorado, 600 U.S. 66 (2023)........................... 19, 23

Croce v. State, 379 So. 3d 1153 (Fla. 4th DCA 2024) .................. 1, 2

Duncan v. Louisiana, 391 U.S. 145 (1968) ...................................... 8

Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903) ...... 15

Gibson v. State, 16 Fla. 291 (1877) ............................................... 15

Jackson v. State, 926 So. 2d 1262 (Fla. 2006) ................................ 2

Mallet v. State, 280 So. 3d 1091 (Fla. 2019) .................................... 2

Maxwell v. Dow, 176 U.S. 581 (1900) ............................................. 8

Patton v. United States, 281 U.S. 276 (1930) ................................... 8

Ramos v. Louisiana, 206 L. Ed. 2d 583 (2020) ...................... 6, 9, 17

Thompson v. Utah, 170 U.S. 343 (1898) .......................................... 7

Williams v. Florida, 399 U.S. 78 (1970) ............................ 6, 8, 9, 10

Statutes

§ 784.048, Fla. Stat. (2020) ................................................... passim

Ch. 2021–220, Laws of Fla. ............................................................ 4

Ch. 3010, § 6, Laws of Fla. (1877) ................................................ 15

Colo. Rev. Stat. Ann. § 18–3–602 (2022) ....................................... 21

Other Authorities

Diamond et al., Achieving Diversity on the Jury: Jury Size and the

Peremptory Challenge, 6 J. of Empirical Legal Stud. 425 (Sept.

iv

2009) ......................................................................................... 12

Higginbotham et al., Better by the Dozen: Bringing Back the TwelvePerson Civil Jury, 104 Judicature 47 (Summer 2020) .......... 13, 14

Jerrell H. Shofner, Reconstruction and Renewal, 1865–1877, in The

History of Florida 273 (Michael Gannon, ed., first paperback

edition 2018) ....................................................................... 16, 17

John Gastil & Phillip J. Weiser, Jury Service as an Invitation to

Citizenship: Assessing the Civic Values of Institutionalized

Deliberation, 34 Pol'y Stud. J. 605 (2006) .................................. 18

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 (1972) ............... 16, 17

Samuel R. Sommers & Phoebe C. Ellsworth, How Much Do We

Really Know About Race and Juries? A Review of Social Science

Theory and Research, 78 Chi.-Kent L. Rev. 997 (2003)............... 14

Shamena Anwar, et al., The Impact of Jury Race In Criminal Trials,

127 Q.J. Of Econ. 1017 (2012) .................................................. 13

Smith & Saks, The Case for Overturning Williams v. Florida and the

Six-Person Jury, 60 Fla. L. Rev. 441 (2008) ................................ 14

United States Courts, Juror Experiences, available at

https://www.uscourts.gov/services-forms/jury-service/learnabout-jury-service/juror-experiences ......................................... 18

William Blackstone, Commentaries on the Laws of England ............ 7

Constitutional Provisions

Amend. I, U.S. Const. ............................................................ passim

Amend. VI, U.S. Const.................................................................... 5

Amend. XIV, U.S. Const. .............................................................. 19

v

IN THE SUPREME COURT OF THE UNITED STATES

_____________

NO .

CHRISTOPHER CROCE, PETITIONER,

V.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

Christopher Croce, respectfully petitions for a writ of certiorari

to review the judgment of the Fourth District Court of Appeal of

Florida.

OPINION BELOW

The opinion of Florida’s Fourth District Court of Appeal is

reported as Croce v. State, 379 So. 3d 1153 (Fla. 4th DCA 2024)

(Table), and is reprinted in the appendix. 1a.

1

JURISDICTION

Florida’s Fourth District Court of Appeal affirmed Petitioner’s

convictions and sentences on January 11, 2024, without written

opinion. 1a. Croce v. State, 379 So. 3d 1153 (Fla. 4th DCA 2024)

(Table). The court denied Petitioner’s motion for rehearing and

certification on February 22, 2024. 2a.

The Florida Supreme Court is “a court of limited jurisdiction,”

Mallet v. State, 280 So. 3d 1091, 1092 (Fla. 2019) (citation omitted),

Specifically, the state supreme court has no jurisdiction to review

district court of appeal decisions entered without written opinion.

Jackson v. State, 926 So. 2d 1262, 1266 (Fla. 2006). Hence,

Petitioner could not seek review in that court. This Court has

jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The First Amendment provides that “Congress shall make no

law … abridging the freedom of speech.”

The Sixth Amendment provides: “In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have

been committed, which district shall have been previously

2

ascertained by law, and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defence.”

Section 1 of the Fourteenth Amendment of the United States

Constitution provides: “[N]or shall any State deprive any person of

life, liberty, or property, without due process of law….”

Article I, section 22 of the Florida Constitution provides:

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.

Section 913.10, Florida Statutes, provides:

Number of jurors.—Twelve persons shall constitute a jury

to try all capital cases, and six persons shall constitute a

jury to try all other criminal cases.

Section 784.048, Florida Statutes (2020), provides in relevant

part:

(1) As used in this section, the term:

(a) “Harass” means to engage in a course of conduct

directed at a specific person which causes substantial

emotional distress to that person and serves no

legitimate purpose.

…

3

(d) “Cyberstalk” means:

1. To engage in a course of conduct to communicate,

or to cause to be communicated, words, images, or

language by or through the use of electronic mail or

electronic communication, directed at a specific

person; or 1

2. To access, or attempt to access, the online accounts or Internet-connected home electronic systems

of another person without that person’s permission,

causing substantial emotional distress to that person

and serving no legitimate purpose.

(2) A person who willfully, maliciously, and repeatedly

follows, harasses, or cyberstalks another person commits

the offense of stalking, a misdemeanor of the first degree,

punishable as provided in s. 775.082 or s. 775.083.

(3) A person who willfully, maliciously, and repeatedly

follows, harasses, or cyberstalks another person and

makes a credible threat to that person commits the

offense of aggravated stalking, a felony of the third

degree, punishable as provided in s. 775.082, s. 775.083,

or s. 775.084.

1 This statutory language was slightly altered in July 2021 —

several months after the alleged acts at bar — to change the

expression “communicated, words, images, or language,” to

“communicated, directly or indirectly, words, images, or language.”

Ch. 2021–220 § 1, Laws of Fla.

4

STATEMENT OF THE CASE

Petitioner, Christopher Croce, was charged in the Nineteenth

Judicial Circuit of Florida with two counts of two counts of

aggravated stalking, a felony under section 784.048 (3) (2020),

Florida Statutes. He was tried by a six-member jury, which found

him guilty as charged as to the first count, and guilty of the lesserincluded crime of misdemeanor stalking as to the second count.

The court entered judgment, and imposed a sentence of 37

months in prison followed by a year of community control followed

by two years of probation for the felony. For the misdemeanor,

Petitioner was sentenced to time served.

On appeal to Fourth District Court of Appeal, Petitioner

argued for the first time that his convictions should be reversed

because Florida’s stalking statute is facially unconstitutional under

the First Amendment, 3a–9a and because he was convicted by a

six-member jury in violation of his Sixth Amendment right to a

twelve-member jury. 10a–12a.

The district court of appeal affirmed the convictions and

sentences without written opinion. 1a. Subsequently, it denied

Petitioner’s motion for rehearing and motion for certification. 2a.

5

REASONS FOR GRANTING THE PETITION

I. THE REASONING OF WILLIAMS V. FLORIDA HAS

BEEN REJECTED, AND THE CASE SHOULD BE

OVERRULED. 2

The decision in Williams v. Florida, 399 U.S. 78 (1970), is

impossible to square with the ruling in Ramos v. Louisiana, 206 L.

Ed. 2d 583 (2020), 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 the term

meant was a jury of twelve. As this 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.

The Court said in Thompson v. Utah, 170 U.S. 343, 349–350

2 There are a number of other cases pending before the Court

as to this issue. Guzman v. Florida, No. 25–5173 Cunningham v.

Florida, No. 23–5171; Arellano-Ramirez v. Florida, No. 23–5567;

Sposato v. Florida, 23–5575; Morton v. Florida, No. 23–5579;

Jackson v. Florida, No. 23–5570; Crane v. Florida, No. 23–5455;

Aiken v. Florida, No. 23–5794; and Enrriquez v. Florida, No. 23–

5965. This case should at least be held pending resolution of

Guzman and those other petitions.

6

(1898), that since the time of 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.

In addition to the authorities cited in Thompson, one may note

that Blackstone stated that the right to a jury of twelve is even

older, and more firmly established, than the unqualified right to

counsel in criminal cases. 4 William Blackstone, Commentaries on

the Laws of England, ch. 27 (“Of Trial and Conviction”). Blackstone

traced the right back to ancient feudal right to “a tribunal

composed of twelve good men and true,” and wrote that “it is the

most transcendent privilege which any subject can be enjoy or wish

for, that he cannot be affected in his property, his liberty or his

person, but by the unanimous consent of twelve of his neighbours

and equals.” 3 Blackstone, ch. 23 (“Of the Trial by Jury”).

After Thompson Court continued to cite the basic principle

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

cases for seventy more years. In 1900, the Court explained that

7

“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, this 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).

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.

8

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 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 progeny “departed from the strictly historical

requirements of jury trial”).

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

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

light of Ramos. There, this Court held that the Sixth Amendment

9

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” undertaken 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,

Ramos 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 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).

Even setting aside Williams’s disfavored functionalist logic, its

10

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

was out of date shortly after the opinion 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 12-man 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

incorrect. This 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 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,”

11

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 245–

46 (Powell, J.) (agreeing that five-member juries are

unconstitutional, while acknowledging that “the line between fiveand 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.,

12

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.”); Shamena Anwar, et al., The Impact of Jury

Race In Criminal Trials, 127 Q.J. Of Econ. 1017, 1049 (2012)

(finding that “increasing the number of jurors on the seated jury

would substantially reduce the variability of the trial outcomes,

increase black representation in the jury pool and on seated juries,

and make trial outcomes more equal for white and black

defendants.”).

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.

Other important considerations also weigh in favor of the

twelve-member jury. Studies indicate that twelve-member juries

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

13

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); Samuel R. Sommers & Phoebe C. Ellsworth,

How Much Do We Really Know About Race and Juries? A Review of

Social Science Theory and Research, 78 Chi.-Kent L. Rev. 997, 1030

(2003) (“[R]acially mixed juries ha[ve] longer, more thorough

deliberations than all-White juries.”).

Minority views are also more likely to be thoroughly 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 twelve-person jury.”

Smith & Saks, 60 Fla. L. Rev. at 466. Finally, larger juries deliver

more predictable results. In the civil context, for example, “[s]ixperson 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.

Importantly, the history of Florida’s rule can be traced to the

Jim Crow era. Justice Gorsuch has observed that “[d]uring 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

14

systematic effort to suppress minority voices in public affairs.”

Khorrami v. Arizona, 143 S. Ct. 22, 27 (2022) (Gorsuch, J.,

dissenting from denial of certiorari) (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 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, 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

15

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 to

black 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 (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

16

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.

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

Crow era effort “to suppress minority voices in public affairs.”

Khorrami v. Arizona, 143 S. Ct. 22, 27 (2022) (Gorsuch, J.,

dissenting from denial of certiorari); 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.

And this history casts into relief another negative consequence

of having small juries: it denies a great number of citizens the

“duty, honor, and privilege of jury service.” Powers v. Ohio, 499 U.S.

17

400, 415 (1991). Many consider jury service an “amazing and

powerful opportunity and experience—one that will strengthen your

sense of humanity and your own responsibility.” United States

Courts, Juror Experiences. 3 Jury service, like civic deliberation in

general, “not only resolves conflicts in a way that yields improved

policy outcomes, it also transforms the participants in the

deliberation in important ways—altering how they think of

themselves and their fellow citizens.” John Gastil & Phillip J.

Weiser, Jury Service as an Invitation to Citizenship: Assessing the

Civic Values of Institutionalized Deliberation, 34 Pol’y Stud. J. 605,

606 (2006).

In view of the foregoing, this Court should grant the petition

and reverse Petitioner’s conviction because he was deprived of his

right a twelve-member jury.

II. PETITIONER WAS CONVICTED UNDER A FACIALLY

UNCONSTITUTIONAL STATUTE.

Petitioner was convicted of aggravated stalking and

misdemeanor stalking under section 784.048(2) and (3), Florida

Statutes.

3 Available at: https://www.uscourts.gov/services-forms/jury-

service/learn-about-jury-service/juror-experiences

18

These statutory provisions required proof that Appellant

“willfully, maliciously and repeatedly harassed or cyberstalked” the

alleged victims in that he engaged in conduct “causing substantial

emotional distress” for no legitimate purpose. Id. Further, the felony

conviction under subsection (3) of the statute required proof that

the accused made a “credible threat.” Subsection (1)(c) of the

statute defined a credible threat as one that “places the person who

is the target of the threat in reasonable fear for his or her safety or

the safety of his or her family members or individuals closely

associated with the person, and which is made with the apparent

ability to carry out the threat to cause such harm.” § 784.048(1)(c).

The statute does not require proof that one intended to cause

substantial emotion distress or, at a minimum, that one

consciously disregarded a substantial risk that his communications

would be viewed as causing substantial emotional distress and

threatening violence, and hence is unconstitutional under the First

and Fourteenth Amendments. See Counterman v. Colorado, 600

U.S. 66 (2023).

In that case, a woman received hundreds of messages from

Counterman indicating that he was surveilling her, and expressing

19

anger, envisaging her being killed, and urging her to die. Id. at 70.

Very fearful and believing she was being threatened, the victim

stopped walking alone, declined social activities and canceled

professional engagements as a musician. Ibid. She contacted the

police and charges were brought under Colorado’s stalking statute.

Ibid. The statute provided in pertinent part:

(1) A person commits stalking if directly, or indirectly

through another person, the person knowingly:

…

(b) Makes a credible threat to another person and, in

connection with the threat, repeatedly makes any form

of communication with that person, a member of that

person’s immediate family, or someone with whom that

person has or has had a continuing relationship,

regardless of whether a conversation ensues; or

…

(2) For the purposes of this part 6:

(a) Conduct “in connection with” a credible threat

means acts that further, advance, promote, or have a

continuity of purpose, and may occur before, during, or

after the credible threat.

(b) “Credible threat” means a threat, physical action, or

repeated conduct that would cause a reasonable

person to be in fear for the person’s safety or the safety

of his or her immediate family or of someone with

whom the person has or has had a continuing relationship. The threat need not be directly expressed if the

totality of the conduct would cause a reasonable

person such fear.

20

(c) “Immediate family” includes the person’s spouse

and the person’s parent, grandparent, sibling, or child.

(d) “Repeated” or “repeatedly” means on more than one

occasion.

Colo. Rev. Stat. Ann. § 18–3–602 (2022).

Counterman moved to dismiss on the ground that his

messages were not true threats, but the trial court ruled that the

statute required only an objective reasonable person standard,

under which the state did not need to prove any kind of subjective

intent to threaten. Id. at 71. On appeal from his resulting

conviction, Counterman made a different argument: that the state

was required by the First Amendment to prove that he was aware of

the threatening nature of his statements. Ibid. The appellate court

rejected that argument. It “decline[d] today to say that a speaker’s

subjective intent to threaten is necessary,” and it approved the trial

court’s ruling that the messages were “true threats” unprotected by

the First Amendment. Id. at 71–72.

After the state supreme court denied review, Counterman

petitioned for certiorari review. The Court took the case to

determine whether the First Amendment requires proof of a

defendant’s subjective mindset “in true-threats cases,” and, if so,

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what mens rea standard is sufficient. Id. at 72.

The state argued that there is no requirement that defendants

be aware in some way of the threatening nature of the

communications in cases involving true threats. Ibid. Counterman

contended that there is one, “based mainly on the likelihood that

the absence of such a mens rea requirement will chill protected,

non-threatening speech.” Id. at 72–73. Faced with the two

positions, the Court wrote that “Counterman’s view, we decide

today, is the more consistent with our precedent.” Id. at 73.

The Court held that “a mental state of recklessness is

sufficient. The State must show that the defendant consciously

disregarded a substantial risk that his communications would be

viewed as threatening violence. The State need not prove any more

demanding form of subjective intent to threaten another.” Id. at 69.

The Court concluded that Colorado’s objective standard is

unconstitutional:

It is time to return to Counterman’s case, though only a

few remarks are necessary. Counterman, as described

above, was prosecuted in accordance with an objective

standard. See supra, at 3. The State had to show only

that a reasonable person would understand his

statements as threats. It did not have to show any

awareness on his part that the statements could be

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understood that way. For the reasons stated, that is a

violation of the First Amendment.

Id. at 82.

In view of Counterman, Florida’s statute is facially

unconstitutional as it does not require the subjective intent

required by the First Amendment.

Specifically, the statute does not require proof that a

defendant acted with recklessness such that he “consciously

disregarded a substantial risk that his communications would be

viewed as threatening violence.” Id. at 69, Contrary to Counterman,

the Florida statute does not require the state to show, or the jury to

find, that the defendant had “any awareness on his part that the

statements could be understood that way.” Id. at 82.

Further, the felony under subsection (3) of section 784.048

does not require proof that defendants have consciously

disregarded a substantial risk that their communications would be

viewed as, or that there be any awareness on the defendant’s part

that the statements could be understood as creating a reasonable

fear for safety. Again, the lack of this requirement renders the

statute unconstitutional.

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Accordingly, Petitioner was convicted under an

unconstitutional statute. It would be appropriate for the Court to

grant certiorari review and reverse his convictions.

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CONCLUSION

The petition should be granted or held. See supra n.2.

Respectfully submitted,

CAREY HAUGHWOUT

Public Defender

GARY LEE CALDWELL

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421ThirdStreet

WestPalm Beach, FL 33401

(561) 355–7600

gcaldwel@pd15.org

jwalsh@pd15.org

appeals@pd15.org

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