Opposition Brief — James Herard, Petitioner v. Florida

Supreme Court briefJan 30, 2025

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CASE NO. 24-5939

In the Supreme Court of the United States

JAMES HERARD

Petitioner,

STATE OF FLORIDA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

JOHN M. GUARD

ACTING ATTORNEY GENERAL OF FLORIDA

C. SUZANNE BECHARD

Associate Deputy Attorney General

Counsel of Record

Lisa-Marie Lerner

Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

carlasuzanne.bechard@myfloridalegal.com

capapp@myfloridalegal.com

(813) 287-7900

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED

(Capital Case)

I Whether this Court should grant certiorari on an issue which

requires an intensive factual analysis which is particular only to this

petitioner, does not involve any unsettled issue of federal law, and the

state resolution does not conflict with precedent of this Court, another

state supreme court, or United States Court of Appeal?

II When Petitioner failed to raise a federal constitutional claim in

either the state courts or in this petition, on an issue which was settled

solely on state law, should certiorari be granted?

Ill Whether Petitioner has met the dictates of Supreme Court Rule

10 to obtain certiorari review of the Florida Supreme Court's opinion

on the constitutionality of the state sentencing scheme where that

decision does not conflict with precedent of this Court, another state

supreme court, or United States Court of Appeal nor does it present an

unsettled issue of law?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW 00000... eee eeceeeesnnncneeeeeeeeseenenneeeees 1

TABLE OF CONTENTS 0... eee ccceescseeccessneeeeseeaeeessessasecesssasaeeeeseseeceaeeessneeneeeeeas ui

TABLE OF AUTHORITIES... cece ceeesesececeeseesnessssaeeeeeseeeeeeeeeeeeesneaeeeeeeesenea ill

STATEMENT OF JURISDICTION... ee eeeeecceessneeeesesaaaeeeeeeeeseeeseeseneeseeeeaes 1

CONSTITUTIONAL PROVISIONS INVOLVED 000. cccccccceeeeeeeeeeesesseseennnees 1

FACTS AND PROCEDURAL HISTORY oo. ceccceceesecseeeeececesesceeeeesnaeeeeseetees 1

REASONS FOR DENYING THE WRIT oo eee eeseneeecesesnaeeceeeeeeeeeeeeesseeeeeenes 3

ISSUE I - The Florida Supreme Court’s opinion was in

accordance with Miranda and does not conflict with any case

from this Court or with any case from a federal circuit court of

appeals, or state supreme court. (Restated) ....................cceeeeeees 3

ISSUE II - Certiorari should be denied where petitioner failed

to raise a federal constitutional claim below and the Florida

Supreme Court resolved the evidentiary issue based on state

law, a decision which does not conflict with a case from this

court or any other federal circuit or state supreme court.

(Restated)... cece cece ccc ceccccecceccceceseessseeeeesseeeseeeeeeeaesessaeeeeceeesssneesesess 11

ISSUE III - Certiorari review should be denied because

Florida’s capital sentencing does not violate the Eighth or

Sixth Amendments as it narrows the class of defendants

eligible for the death penalty. The Florida Supreme Court’s

opinion does not conflict with any decision of this Court, a

federal circuit court, or state supreme court. (Restated).......... 13

CONCLUSION occ cccccccccccccssssssessesseeseseseseeeeecsecesssseceeseeeeeesesseeeeeeseecsceeassssesseceeseesecs 22

CERTIFICATE OF SERVICE .0......cccccccccecccsecseeseeeeesnnsececeeseeeeeeecececeeeeeescseussesssssseeeseecs 23

TABLE OF AUTHORITIES

Page(s)

Cases

Berkemer v. McCarty,

468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) oo... eeeeeceeneeeseees 6

Colorado v. Connelly,

479 U.S. 157, 107 S. Ct. 515 (1986) oo eccecccccceeececeeeaesccecueescessuaaeeceesuneeeeess 6

Eddings v. Oklahoma

455 U.S. 104, 117 (1982) oo. ccc cc cccccccccceeeuaseeeeeeeeeeeseeasussessceeecsesueeesneeeceeseseeeuuuanees 12

Edwards v. Arizona,

451 U.S. 477, 101 S. Ct. 1880 (1981) ooo. c ccc ceeeeeeeeeecscccueeeeesececeescesansaanesess 7

Espinosa v. Florida,

BO5 U.S. 1079 (1992) ooo. ceccccccescccccccceeceeeeeseeeeeeeceeeeeseeeeeseessseeesecesseaeseaseseeeccseeeeuauea 21

Fare v. Michael C.,

442 U.S. TOT (1979) occ ccccccccccccccccccccccccsecceecsuaeeeecesseseeseeceusueeesseeeeessscuvssseseceesessuanasaessess 5

Frazier v. Cupp,

394 U.S. 731 (1969) ooo cccc ccc cccccessccccceeueeeceeeseseeeceeseeeeeeeesaesecssueersesessuaeneecesuuaneess 9

Furman v. Georgia,

408 U.S. 2388 (1972) .occcccecccccccccccccccccecceceneceeaaeeceecceeseeeeuueaeseseseeeesssseeuesesecsscseeeeaas 18, 19

General Talking Pictures Corp. v. Western Electric Co.,

B04 U.S. 175 (1924) ooo cc cc cccecccceeccceceeeeaeeceseeeeeeeseeesusecseseseseeceeageceeesesseeuesesens 10

Godfrey v. Georgia,

AAG U.S. 420 (1994) oocccececcecsessecsessesscssecsssuecsesesnesessesersucsresvsressesucaussesueaesvasessesteseeseees 19

Herard v. State,

390 So. 3d 610 (Fla. 2024) oo. ccccc ccc seececeeeeseceeecaseeeeeeeasesaeesseueeseeteaaeaeeess Passim

Hurst v. Florida,

B77 U.S. 92 (2016) occ ceeccccccccccccccccceccceseeeeeseeeeeeeeeeeeauseesseeeeeeeseseesuaanensseseeeceecs 13, 18

Hurst v. State,

202 So. 3d 40 (Fla. 2016) oo... ccccccccscneseccceceseeesesaeeeesesesseeeseeeseuenenseeseececeeseeuuuaa 13

Kansas v. Marsh,

548 U.S. 1683 (2006) ooo. cece cece asec eeeeeecccccsseassaeeeeeseeeeseeesssseueeebaeeeeeeeeegss 18, 22

Lynch v. State,

841 So. 2d 362 (Fla. 2008) oo... cccccecccecccceccesecccesueeesesecececeeeeeesssuuesueveecececeesueeanaaaaesees 21

Mckinney v. Arizona,

140 S. Ct. 702 (2020) oocec ccc cceccceesescccsesecccccceesueeeeeseeeecessseeeeuausssesesscecececeeerseeusaneesers 15

McNeil v. Wisconsin,

BOD U.S. 171 (1991) occ cece cece ccccenetceeeeeeeeeesseseseeeseeeeesssasssssssssseeseaessseessensenaas 9

ral

Michigan v. Mosley,

423 U.S. 96 (1975) oo ccccccccecccccscceccccccuesseeeeeeeeeeeseesesessseeeeeeeeeeeeeeeeenseeecessecuaaseeeeeeeeeeas 6,9

Miranda v. Arizona,

384 U.S. 436 (L966) oooccc ccc ccecceeccccceccceeseeecceeeeeceeeeceeeeeeeeeeeseeeeeeeeeeeeeeeeeeeeeeseeseseeseueeueaaa 4

Missouri v. Seibert,

542 U.S. GOO (2004) ooooc cc ccccccccccccccccceneeseeeeeeeeeeeceeeeseeeeeseeeeeeeeeeeeeeseeeeeeeeeeeeeeeeeeeeeseses 6

Montejo v. Louisiana,

B56 U.S. 778 (2009) ooo. ccceccccccccceeeccccccceceeeaneeeeeecceseeeuessesseeeeeeeeeeeeeeseaaseeeceseessaaaeeseeeseeeaea 5

Moran v. Burbine,

7 53s Bro ar. SO helo] 6) cee 5

North Carolina v. Butler,

AAI U.S. 869 (1979) occ ccc cece cece cece eee e eee e eae n nee eee ee EEE EEEEEEEEE EE AEEc Ee ceeeeaeeeeesesaseeeeaaai 6

Oregon v. Bradshaw,

AG2 U.S. 1039 (1988) occ cece ccc cc ccc e cece cease ease eee e eee ceeeeee cess eee eeeeeeeeeeaeeeseeeeesseaeeuaaa 8

Page v. Arkansas Natural Gas Corp.,

286 U.S. 269 (1982) occ c cece ccc c cece cece cece ena a ee ee eee cece ee Eee EE EEEAESEEEEEEEEEEEEeEEEeEeeeeeeeeeas 10

Proffitt v. Florida,

428 U.S. 242 (OTC) coe cc cece cece cece eee e cece eee e aaa eee e eee e cease ee eeee ee eeeeeeeeeeeeeeeeeeeeeeeeseeaas 18

Ramirez v. State,

739 So. 2d 5C8 (Fla. 1999) oo... cece cece cece cece eee e ee ee EEE EEE REEF EEE EEE EE EEE EEE EEE EEE EERE EEE EE EEE 5

Ring v. Arizona,

575) oi Obs Pana ys ¢: 9 0-10 0)) ccc 16

Rockford Life Insurance Co. v. Illinois Department of Revenue,

482 U.S. 182 (1987) occ ccc cece cece cece cece cece ee EEE EEE EEE EEE E EEE E EE EEE EE EE EE EE EEE EEE EE EEE EE 10, 17

Spaztano v. Florida,

AGB U.S. 447 (1984) occ cece cece sc ceeceeeeee ee aa sea seneeaeeaaaaeaeaaeeeeeeeeeeeeeeeseeeeeeeeeeeseeeeas 18

Spencer v. State,

615 So. 2d 688 (Fla. 1998) oc... ccceccceccccccccsesuseecececeeceecsuseesesseeeceseeeeeceesuuaeeeeeseeeeeeseaea 3

State v. Poole,

297 So. 8d 487 (Fla. 2020) .....ccccccccccccccccccccceeeeesesessensssssssesseeeeesaaaeeceeeceeseeeeeeeceeeeeeeeess 13

Traylor v. State,

596 So. 2d 592 (Fla. 1992) oo. cccccccccccceceeessceeeeeeeeaseeeceeeeeeeeeeeeeesceseeesseseeeeseeeeeess 7

Tuilaepa v. California,

B12 U.S. 967 (1994) occ c cece cece cceceececeeeeeeeuaauseaaseeaasaasasaseeeseeeeeeeeeeeeeeeesesseeeeeeess 19

United States v. Johnston,

268 U.S. 220 (1925) woe cc cc cccccccccesccccceseeeeseeeeeseeseessssseeeceeeeseeseeesseseeaesanenseseeses 10

White v. State,

817 So. 2d 799 (Fla. 2002) ......cccceccccccccccceessesesesseeenaceeeeeeceeseeccaneeeessssaaaeeeseeeeseessesaeaeas 12

Williams v. State,

967 So. 2d 735 (Fla. 2007) ....ccccccccccccccccccccccceeseeesceeseseeseeeceeeeeesseansecesessneessesesceseneaaea 12

Zant v. Stephens,

462 U.S. 862 (1988) occ c cece cece cette e cnet eeeeeeeeee cess eeeeA sass EEeAAE Gea eteeAEeaGaaEaoOeS 19

ZLucht v. King

260 U.S. 174 (1922) oo ceiecccccc cece ccc ceeeseeecccecesseeceeeseaessseeeeseeeeeesesssaesecesccuseeseseeeceeseeees 12

Statutes

28 U.S.C. § 12541) occ cccccc cece cece cee eeeeee cece eee eeceeeeEeOE EG EHH HAE EEeeEssaa aes ecessssaaaaanaEEEEES 1

§ 90.702, Florida Statutes (2014)... cccccccccccccccccccceeecetsteteneeeeteeseseseeeeeeeeeeeeeessesseeeeeees 12

S DQV ITAL ccc cece ccccsenseceeeeeeeeeeeeeesessseeeeeseeecesaeeeeseeeeeeaceaeeeeeeteeeeeeeeess 18, 20, 21

§ 921.141(5), Fla. Stat. (2008) .0.... cc cecceceecececeeeeeeesaceeeceneeeennneeeeeeeeeeeeeeeeeeseeessnssteees 18

§ 90.702(2)(8), Fla. State. cccccccccccecceceeaeeeeaeeneceeeeeeeeeeeeeeeeeeeeeeceeeeseseeeessseuseauaaaeeees 12

§ 921.141(2)(b), Fla. Stat. (2020) ooo... cccccecscccccccesseneeceeeeeeeseeeeneeeaeeeeeeeseeseeeeeeeensaes 16

Rules

Rule 10, Rules of the Supreme Court of the United States... 10, 11, 13, 17

ERIN

CITATION TO OPINION BELOW

The decision of which Petitioner seeks discretionary review is reported as

Herard v. State, 390 So. 3d 610 (Fla. 2024).

STATEMENT OF JURISDICTION

Petitioner, James Herard, is seeking jurisdiction pursuant to 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution are at issue.

FACTS AND PROCEDURAL HISTORY

James Herard was indicted on March 4, 2009, on 21 gang-related felonies,

including the first-degree murders of Eric Jean-Pierre and Kiem Huynh, as well as

multiple robberies and shootings for a period stretching from June to December

2008. The jury found him guilty in 2014 of 18 counts, including the two murders.

The jury found him not guilty of one charge and the prosecution dismissed another

during the trial. After a penalty phase trial, the jury recommended death for one of

the murders. The trial court sentenced Herard to death for the Jean-Pierre murder

and to life without the possibility of parole for the Huynh murder.

Herard appealed and the Florida Supreme Court affirmed both the

convictions and the sentences. It found the facts as follows:

Herard was the second-in-command of the “BACC Street Crips,” a

Lauderhill-based branch of the national Crips gang. In the early

morning hours of November 14, 2008, Herard and two fellow gang

members drove the streets of Lauderhill in search of a victim for their

ongoing body-count competition. They randomly came upon Eric Jean-

Pierre, who had no gang affiliation and just happened to be walking

home from a bus stop. As the gang members’ car pulled up alongside

Jean-Pierre, Herard's co-passenger Tharod Bell reached out from the

vehicle with a 20-gauge shotgun. Herard told Bell to “bust it, bust it,

bust it,” prompting the latter to shoot Jean-Pierre in the chest at pointblank range. The blast blew away part of Jean-Pierre's heart and killed

him almost instantly.

That murder was one of many gang-related crimes that Herard and his

associates committed between June and December 2008. Those crimes

included Herard's murder of Kiem Huynh, which occurred during the

robbery of a Dunkin’ Donuts store in Tamarac. There were also

robberies and shootings at Dunkin’ Donuts stores in Plantation (where

Herard had been an employee), Sunrise, and Delray Beach, along with

shootings that targeted rival gang members in Lauderhill. On

December 2, 2008, Herard and another gang member assaulted two

people and stole their pit bull. Lauderhill detectives who witnessed the

incident immediately arrested Herard, ending his crime spree.

Herard v. State, 390 So. 3d 610, 615 (Fla. 2024).

Central to the case were Herard’s incriminating statements to law

enforcement in a series of interrogations over a two-day period after his arrest for

stealing a pit bull. For instance, Herard said that Tharod Bell would not have

pulled the trigger on Jean-Pierre if Herard himself had not instigated the shooting

by repeatedly telling Bell to “bust it.” The State also linked Herard to the 20-gauge

shotgun used in many of the shootings (including the two murders) and to a white

Toyota Camry seen at many of the crime scenes. Id.

The defense strategy was to argue that Herard's statements to law

enforcement were inconsistent (he initially denied having shot anyone), unreliable,

and involuntary. Counsel emphasized that Herard was only 19 years old at the time

of the police questioning. The defense highlighted that the police had never

recovered the shotgun and lacked any physical or scientific evidence to implicate

Herard. Herard himself did not testify at trial. Id.

After the jury found Herard guilty, the penalty phase occurred three weeks

later, after which the same jury recommended a death sentence for the Jean-Pierre

murder and life for the Huynh murder. The trial court then held a hearing pursuant

to Spencer v. State, 615 So. 2d 688 (Fla. 1993), in September 2014 at which Herard

himself testified. The trial court sentenced Herard to death on January 23, 2015.

Herard appealed, raising five issues.1 The Florida Supreme Court affirmed.

This petition followed.

REASONS FOR DENYING THE WRIT

ISSUE I

The Florida Supreme Court’s opinion was in accordance with

Miranda and does not conflict with any case from this Court or

' 4) The court erred for striking a potential juror without sufficient cause; 2) the

court erred in not suppressing Herard’s statements; the court erred for admitting

allegedly irrelevant evidence: 4) the court erred in not allowing the defense to

present expert testimony on coerced confessions: and 5) the death sentence was

unconstitutional as it was based on a majority jury recommendation.

with any case from a federal circuit court of appeals, or state

supreme court. (Restated)

Herard asserts that his statements to various police agencies should have

been suppressed because he had invoked his right to counsel, he never reinitiated

conversation with the police, and the State never established that any waiver was

knowing and voluntary. Those contentions are soundly refuted by the record and

the state courts properly denied the motion to suppress based on the law set forth

by this Court’s cases. Herard is asking this Court to engage in a detailed

reevaluation of the intensive fact specific record which is of no interest to any other

case but his. The Florida Supreme Court’s affirmance of the denial does not conflict

with any case from this Court or with any case from a federal circuit court of

appeals, or state supreme court. Herard has not raised an important and unsettled

question of federal law and has failed to present a compelling reason for this Court

to review his case. Certiorari should be denied.

Miranda v. Arizona, 384 U.S. 486, 444, (1966) requires the police to

specifically inform a defendant in custody of his rights to counsel and silence before

the defendant’s statement can be admitted into evidence. A suspect's waiver of

Miranda rights is valid only if it is "made voluntarily, knowingly[,] and

intelligently." Miranda, 384 U.S. at 444. There are two essential elements of a valid

waiver:

First, the relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice rather

than intimidation, coercion, or deception. Second, the waiver must

have been made with a full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon it.

Only if the "totality of the circumstances surrounding the

interrogation" reveal[s] both an uncoerced choice and the requisite

level of comprehension may a court properly conclude that the

Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, (1986) (quoting Fare v. Michael C., 442 U.S.

707, 725, (1979)). "The ‘totality of the circumstances' to be considered in

determining whether a waiver of Miranda warnings 1s valid based on [this] twopronged approach . . .[and] may include factors that are also considered in

determining whether the confession itself is voluntary." Ramirez v. State, 739 So. 2d

568, 575 (Fla. 1999).

In affirming the trial court's denial of the motion to suppress, the Florida

Supreme Court found that the Lauderhill detectives honored Herard’s request for

an attorney and only asked questions to clarify his desire to speak to them after he

reinitiated the conversation. They then had him sign the Miranda waiver they had

previously read to him. The detective then asked a couple of follow-up questions to

clarify Herard's wishes before giving him the form to sign. The court found that the

other involved detectives gave Herard the Miranda warnings which he waived and

they fed him, gave him time to sleep and rest, and gave him bathroom breaks.

Herard was not threatened or coerced into giving his statements. In the final

interview which occurred after he had been arraigned on the Lauderhill robbery

where counsel filed a written invocation of counsel on that specific case, Herard

again waived his Miranda rights. The Florida Supreme Court properly cited

Montejo v. Louisiana, 556 U.S. 778, 786 (2009), to find that the invocation of the

Sixth Amendment right to counsel was case specific. Herard, 390 So. 3d at 619-621.

Those findings are supported by the record.

In order to find that a confession is involuntary within the meaning of the

Fourth Amendment, there must first be a finding that there was coercive police

conduct. The test for determining whether there was police coercion is resolved by

reviewing the totality of the circumstances under which the confession was

obtained. The State need prove a waiver of Miranda rights only by a preponderance

of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986). While a court’s

analysis of the waiver issue begins with a presumption that "a defendant did not

waive his rights," North Carolina v. Butler, 441 U.S. 369, 378 (1979), "litigation over

voluntariness tends to end with the finding of a valid waiver," Missouri v. Seibert,

542 U.S. 600, 609 (2004). "[C]ases in which a defendant can make a colorable

argument that a self-incriminating statement was ‘compelled’ despite the fact that

the law enforcement authorities adhered to the dictates of Miranda are rare."

Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984). "An express written or oral

statement of waiver of the right to remain silent or of the right to counsel is usually

strong proof of the validity of that waiver, but is not inevitably either necessary or

sufficient to establish waiver." Butler, 441 U.S. at 378.

A suspect's request to cut off questioning until counsel can be obtained must

be “scrupulously honored” by the police. Michigan v. Mosley, 423 U.S. 96, 104

(1975). The Florida Supreme Court has stated:

Once a suspect has requested the help of a lawyer, no state agent can

reinitiate interrogation on any offense throughout the period of custody

unless the lawyer is present, although the suspect is free to volunteer a

statement to police on his or her own initiative at any time on any

subject in the absence of counsel.

Traylor v. State, 596 So. 2d 592, 966 (Fla. 1992) (footnote omitted).

The trial court held an evidentiary hearing on the motion to suppress on

November 20, 2013. In addition to the three detectives who testified, the State

admitted into evidence the waiver forms completed by Herard for the various police

agencies as well as the DVDs of his recorded statements. Herard filled out a waiver

of his Miranda rights when interviewed at the Lauderhill Police Department. (ROA

58:1582) The interview was videotaped and admitted into evidence at the

suppression hearing. (ROA 5:815) On that video, Herard initially refused to sign the

waiver. However, when the detectives were readying to leave, thereby “scrupulously

honor[ing]” his desire not to speak with them, he stopped them. Shortly thereafter,

he said he wanted to talk and would sign the waiver form, which he did. (Ex. 3 & 4)

The detective then asked if he wanted to talk and he said ves. Herard clearly re-

initiated the interview. Under this Court’s case law, this situation did not violate

Miranda.

A defendant is free to initiate contact with the police to give a statement after

he has invoked his rights. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

However, even when an accused has invoked the right to silence or right to counsel,

if the accused initiates further conversation, is reminded of his rights, and

knowingly and voluntarily waives those rights, any incriminating statements made

during this conversation may be properly admitted. See Oregon v. Bradshaw, 462

U.S. 1039, 1045-46 (1983). The defendant in Bradshaw invoked his rights and

requested an attorney. The interview ceased. Later, Bradshaw asked an officer

what was going to happen to him. The officer reminded him that he did not have to

speak to him, after which a conversation ensued in which the officer again reminded

him of his rights but Bradshaw admitted the crime. Bradshaw, 462 U.S. at 1042.

Here, Herard did not want to wait for an attorney to arrive; he wanted to talk. The

detective made sure Herard wanted to talk, reminding him of his rights by implying

that he did not have to do so. He said he did and then proceeded to sign the waiver

form. Under the totality of the circumstances, the trial court's determination that

Herard himself re-initiated the discussion comported with both the facts and the

law.

Detectives from Broward Sheriffs Office and Sunrise Police Department

interviewed Herard in the Public Safety building and video taped the entire time he

was in the interview room whether or not an interview was occurring. Herard

completed waiver forms for each of those agencies. (ROA 58:1570-71) The DVDs of

the interview were before the trial court and provided competent, substantial

evidence to support its findings underlying its determination that the statements

were voluntary and that there was no coercion or abuse by the police. The record

shows no coercive police conduct nor does it show any promises designed to elicit a

statement. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) (holding that where

interrogating officer had falsely told defendant that his cousin-who had been in

defendant's company on night of alleged crime-had confessed to crime, police

misrepresentation of facts “while relevant” was “insufficient ... to make [an]

otherwise voluntary confession inadmissible”).

Detective Visners from the Sunrise Police Department was the last to

interview Herard. The detective fully Mirandized Herard and had him sign the

waiver form. (ROA 58:1571, 9:1472-73) Visners testified that Herard understood his

rights, asked no questions, did not want the conversation recorded, and was quite

animated throughout the interview. (ROA 9:1473-75) Again, the record clearly

shows that Herard’s sstatement and waiver were knowing and voluntary.

Herard also argues that since he invoked his right to counsel by filing a form

invocation at his first appearance for the robbery of the dog in Lauderhill, that

invocation made the statement he gave Det. Visners inadmissible. Herard is

mistaken since the right to both counsel and silence are charge/crime specific and

Herard agreed to speak with Visners. (ROA 9;1472-73) Michigan v. Mosley, 423 U.S.

96, 103-05 (1975); McNeil v. Wisconsin, 501 U.S. 171, 175-82 (1991) (The assertion

of the Sixth Amendment right to counsel, which is case specific, does not imply an

assertion of the Miranda “Fifth Amendment” right was invoked.).

The ruling below does not conflict with a decision of this Court or a federal

circuit court or another state supreme court. Likewise, 1t does not address an

important or unsettled question of federal law. See Rule 10, Rules of the Supreme

Court of the United States. This Court has recognized that cases which have not

developed conflicts between federal or state courts or presented important,

unsettled questions of federal law usually do not deserve certiorari review. Rockford

Life Insurance Co. v. Illinois Department of Revenue, 482 U.S. 182, 184, n.3 (1987).

The law is well-settled that this Court does not grant certiorari for the purpose of

reviewing evidence and/or discussing specific facts. United States v. Johnston, 268

U.S. 220 (1925) (denying certiorari to review evidence or discuss specific facts).

Further, this Court has rejected requests to reassess or re-weigh factual disputes.

Page v. Arkansas Natural Gas Corp., 286 U.S. 269 (1982) (ejecting request to

review fact questions); General Talking Pictures Corp. v. Western Electric Co., 304

U.S. 175, 178 (1924) (same).

In conclusion, competent, substantial evidence supported the state courts’

factual findings that Herard’s statements were uncoerced and were freely and

voluntarily given. Those courts properly applied Miranda and its progeny in the

legal analysis, taking in the totality of the circumstances around the statements.

This Court should deny certiorart1.

ISSUE II

Certiorari should be denied where Petitioner failed to raise a

federal constitutional claim below and the Florida Supreme

Court resolved the evidentiary issue based on state law, a

decision which does not conflict with a case from this court or

any other federal circuit or state supreme court. (Restated)

Herard argues that the trial court’s refusal to allow him to present evidence

on false confessions based on the Reid? interviewing technique was reversible error.

This issue is without merit since the state courts properly applied the relevant state

law for the admission of expert testimony. Importantly, he does not identify the

federal question at issue or the constitutional amendment that allegedly was

violated. Herard offers no reason for certiorari review as set out in Rule 10. Not only

were these constitutional claims not presented below, but the Florida Supreme

* The Reid technique is an interrogation method involving nine steps which

includes: confronting the defendant with the evidence; overcoming defendant's

Court's resolution of the admission of evidence issue rested on state law.

Furthermore, that resolution does not conflict with a case from this Court, a federal

circuit court, or other state supreme court, nor does it raise an important, unsettled

question of federal law. Certiorari should be denied.

The question Petitioner offers for review has two related but independent

reasons for denial of the writ. First, the federal question was not fairly presented

below and ruled on by the Florida Supreme Court. Second, the issue Petitioner

raises here is a state court evidentiary question decided based on state law, not

federal constitutional law. Finally, the claim presents no significant or unsettled

question of constitutional law.

Herard below complained that under Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579 (1993), his expert’s testimony on confession techniques should have

been admitted at trial. He did not allege the ruling deprived him of due process

under the Fourteenth Amendment. See generally Duncan v. Henry, 513 U.S. 364,

366 (1995) (“Respondent did not apprise the state court of his claim that the

evidentiary ruling of which he complained was not only a violation of state law, but

denied him the due process of law guaranteed by the Fourteenth Amendment.”). An

inadequately presented constitutional claim in state court does not merit certiorari

review.

objections; and minimizing defendant's culpability.

The underlying state court ruling on the admissibility of expert testimony

rests upon and was decided on state law. Where no federal question is presented,

certiorari review is inappropriate. See Eddings v. Oklahoma, 455 U.S. 104, 117

(1982); Zucht v. King, 260 U.S. 174 (1922). Herard’s argument that he was

prejudiced when the trial court prohibited his expert from testifying was based on a

state evidentiary rule. Under Florida law, admission of evidence is within the

court’s discretion and its ruling will be affirmed unless there has been an abuse of

discretion. Williams v. State, 967 So. 2d 735, 748 (Fla. 2007). "Discretion is abused

only when the judicial action is arbitrary, fanciful, or unreasonable, which is

another way of saying that discretion is abused only where no reasonable person

would take the view adopted by the trial court." White v. State, 817 So. 2d 799, 806

(Fla. 2002). The admission of expert testimony is governed by section 90.702,

Florida Statutes (2014). The proposed testimony must be “the product of reliable

principles and methods,” and it must be the case that “[t]he witness has applied the

principles and methods reliably to the facts of the case.” § 90.702(2)(8), Fla. Stat.

The Florida Supreme Court determined that Herard’s expert “was not prepared

reliably to address the specifics of Herard's case, including whether law

enforcement used adequate safeguards in its questioning.” Herard, 390 So. 3d at

621-22. It further found that the expert’s “proposed testimony about the purported

link between the Reid Technique and false confessions was equivocal and

potentially confusing to the jury.” Id. Therefore, it found that the trial court did not

abuse its discretion in excluding the testimony. Id.

The Florida Supreme Court's ruling on the admissibility of Herard's proposed

expert testimony was resolved under Florida law. What was presented below was a

routine state evidentiary question. Further, the Florida Supreme Court's opinion is

not in conflict with a decision of this Court, nor does it provide a basis for review

under Rule 10. Consequently, this Court should deny certiorari.

ISSUE III

Certiorari review should be denied because Florida’s capital

sentencing does not violate the Eighth or Sixth Amendments as

it narrows the class of defendants eligible for the death

penalty. The Florida Supreme Court’s opinion does not conflict

with any decision of this Court, a federal circuit court, or state

supreme court. (Restated)

In his final issue, Herard claims that the imposition of his death sentence

violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution and should be stricken. He argues that the sentencing scheme in

Florida at the time of his trial was unconstitutional under Hurst v. Florida, 577

U.S. 92 (2016), so that the only remedy for that error is a life sentence or a new

penalty phase trial. Herard argues that Hurst v. State, 202 So. 3d 40 (Fla. 2016), set

out the ‘correct standards that should be used in death penalty cases and,

notwithstanding the Florida Supreme Court’s decision in State v. Poole, 297 So. 3d

487 (Fla. 2020), the standards set out in Hurst v. State are the ones that must be

used in a new penalty phase trial. Herard goes on to argue that the Florida death

penalty sentencing structure violates the Eighth Amendment because the jury does

not actually determine the sentence, and its role is too truncated to withstand

Constitutional scrutiny. Lastly, he challenges the constitutionality of Florida’s

aggravators, saying that they fail to sufficiently narrow the class of individuals

subject to the death penalty. Florida's capital sentencing scheme has been found

constitutional, and the instant decision of the Florida Supreme Court does not

conflict with a case from this Court or with a case from a federal circuit court of

appeals or state supreme court. Also, Herard has not raised an important and

unsettled question of federal law. Herard has failed to present a "compelling" reason

for this Court to review his case. Certiorari should be denied.

In sentencing Herard to death, the trial court found three aggravators of: (1)

defendant was previously convicted of another capital felony involving the use or

threat of violence to the person under section 921.141(5)(b); (2) CCP under section

921.141(5)(1); and (3) defendant is a criminal gang member under section

921.141(5)(n). (ROA 1281-86). The Florida Supreme Court declined to recede from

Poole but found that there is no violation of the Sixth Amendment since the jury

unanimously found Herard guilty of multiple prior violent felonies. It further

reiterated that the Florida law adequately narrows the class of defendants subject

to the death penalty. Herard, 390 So. 3d at 622-238.

Sixth Amendment

It is Herard’s position that his sentence is unconstitutional as he was

sentenced under a statute which was declared unconstitutional in Hurst v. Florida,

and that decision should dictate either a new penalty phase or a life sentence. As

noted earlier, the Florida Supreme Court receded from Hurst v. State in line with

the direction given from this Court in Hurst v. Florida.

This Court has never held that the sufficiency of the aggravating factors, the

weighing of the aggravating factors and mitigating circumstances, or the jury

recommendation are elements that must be proven unanimously beyond a

reasonable doubt under the Sixth Amendment before a trial court may impose the

death penalty on a criminal defendant. In fact, this Court has expressly rejected

such contentions. McKinney v. Arizona, 140 8S. Ct. 702, 707-08 (2020) “Under Ring

[v. Arizona, 536 U.S. 584 (2002),] and Hurst [v. Florida], a jury must find the

aggravating circumstance that makes the defendant death eligible. But

importantly, in a capital sentencing proceeding just as in an ordinary sentencing

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

the aggravating and mitigating circumstances or to make the ultimate sentencing

decision within the relevant sentencing range.’).

Accordingly, Herard’s entire argument is predicated on an _ erroneous

interpretation of the Sixth Amendment's requirements. The Sixth Amendment only

requires that the facts which make a criminal defendant eligible for the death

penalty be found beyond a reasonable doubt. Neither the sufficiency of the

aggravating factors, nor the weighing of the aggravating factors and mitigating

circumstances are facts, as explained by this Court in McKinney v. Arizona, 589

U.S. 189, 143-44 (2020).

Florida’s current death penalty statute sets out specific steps the jury must

take before recommending a death sentence for a criminal defendant. If the jury:

2. Unanimously finds at least one aggravating factor, the

defendant is eligible for a sentence of death and the jury

shall make a recommendation to the court as to whether

the defendant shall be sentenced to life imprisonment

without the possibility of parole or to death. The

recommendation shall be based on a weighing of all of the

following:

a. Whether sufficient aggravating factors exist.

b. Whether aggravating factors exist which outweigh the

mitigating circumstances found to exist.

c. Based on the considerations in sub-subparagraphs a.

and b., whether the defendant should be sentenced to life

imprisonment without the possibility of parole or to

death.

§ 921.141(2)(b), Fla. Stat. (2020).

The statute’s requirements thus differ from the Sixth Amendment's

requirements because the statute requires the jury to make non-factual selection

findings before recommending a death sentence. The statute’s text reflects this as it

identifies the unanimous finding of at least one aggravating factor as the eligibility

requirement for the imposition of the death penalty. Put another way, the statute

identifies the existence of an aggravating factor as a fact that must be unanimously

found by the jury before the death penalty may be imposed. The additional

statutory requirements, sufficiency and weighing, are selection findings that

pertain to the jury recommendation, not the Sixth Amendment.

In this case, Herard was convicted of multiple contemporaneous felonies by

his guilt phase jury. Like Poole, Herard’s convictions rendered him death eligible

and his sentence constitutional under the proper understanding of Hurst v. Florida.

See also McKinney. This Court should deny certiorari.

Eighth Amendment

Herard next takes issue with the jury’s role in the penalty phase and

sentencing, hinting that the Constitution requires the jury to sentence a defendant

rather than render a recommendation. Certiorari should be denied as Florida's

statute does not run afoul of the Eighth Amendment. The ruling below does not

conflict with a decision of this Court or a federal circuit court or another state

supreme court.

This Court has reviewed Florida's capital sentencing under Eighth

Amendment challenges and has found section 921.141 constitutional as it requires

the sentencer to weigh aggravating and mitigating factors against each other and to

focus on the "circumstances of the crime and the character of the individual

defendant." Proffitt v. Florida, 428 U.S. 242, 251-52 (1976). See also, Spaziano v.

Florida, 468 U.S. 447, 463 (1984), overruled on other grounds by Hurst v. Florida,

577 U.S. 92 (2016) (finding Florida's capital sentencing unconstitutional under

Sixth Amendment challenge). Moreover, a capital sentence remains constitutional

despite imperfections in the criminal justice system. Kansas v. Marsh, 548 U.S. 168,

181 (2006). Jury sentencing is not required. Proffitt, 428 U.S. at 252 (1976) (noting

that while jury sentencing can perform an important function in a capital case, the

Court has “never suggested that jury sentencing is constitutionally required.”).

Certiorari should be denied.

Adequate narrowing of class of death eligible defendants.

Finally, Herard argues that Florida’s scheme fails to genuinely narrow the

category of cases subject to the death penalty. Herard presses that his death

sentence is unconstitutional as there are sixteen? aggravators listed in the statute

when eight had been identified in the wake of Furman v. Georgia, 408 U.S. 238

(1972). Contrary to his position, the constitutionality of Florida’s capital sentencing

3 The statute under which Herard was sentenced contained only fifteen aggravators,

a through o in section 921.141(5), Fla. Stat. (2008).

has been upheld against claims of failure to properly narrow the class of defendants

eligible for the death penalty. Similarly, two of the aggravators which were applied

to Herard have been upheld as constitutional and the third, “gang member,”! was

not challenged below and is constitutional by its very terms. An aggravating factor

must afford "a meaningful basis for distinguishing the few cases in which [the death

penalty] is imposed from the many cases in which it is not." Godfrey v. Georgia, 446

U.S. 420, 427 (1994) (quoting Furman v. Georgia, 408 U.S. 2388 at 318 (1972).

Focusing on the decision of death eligibility, this Court held that "To render a

defendant eligible for the death penalty in a homicide case, we have indicated that

the trier of fact must convict the defendant of murder and find one ‘aggravating

circumstance’ (or its equivalent) at either the guilt or penalty phase." Tuilaepa v.

California, 512 U.S. 967, 971-72 (1994).

A capital sentencing scheme passes constitutional muster if it rationally

narrows the class of death-eligible defendants and permits the sentencer to consider

any mitigating evidence relevant to its determination. In Zant v. Stephens, 462 U.S.

862, 877 (1983), the Court opined that "an aggravating circumstance must

genuinely narrow the class of persons eligible for the death penalty and must

4 As noted above, Herard failed to challenge the constitutionality of this aggravator

below. In his sentencing memo he merely asserted the weight of this aggravator, if

found, should be reduced as the evidence supporting it came from "unreliable

sources" including his own confession. This particular aggravator is thus not before

reasonably justify the imposition of a more severe sentence on the defendant

compared to others found guilty of murder."

As noted above, the jury and trial court found the aggravators applicable: (1)

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

of violence: (2) murder was committed in a cold, calculated, and premeditated

manner; and (3) the murder was committed by a criminal gang member. Two of

these are longstanding aggravating factors as explained below and there can be no

dispute that they narrow the class of defendants eligible for the death penalty.

Since 1973, section 921.141 contained the aggravators of defendant

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

threat of violence. See section 191.141(5). Fla. Stat. (1973). In 1979, the cold,

calculated and premeditated ("CCP") aggravator was added to the statute. See

section 921.141, Fla. Stat. (1979). Each of the aggravators focuses on the

defendant's criminal history and manner in committing the crime or the particular

vulnerability and/or suffering of the victim. These aggravating factors differentiate

the death eligible murders from other killings and narrow the class of defendants

subject to the death penalty.

The prior violent felony aggravator is a long-standing sentencing factor

addressed to the defendant's criminal history and recognized as narrowing the

this Court.

class. Such aggravators distinguish recidivist and violent defendants eligible for

capital sentencing from those who have committed petty non-violent crimes prior to

the capital murder. Herard has not explained how the application of these

agegravators render Florida's death penalty unconstitutional.

For CCP, the State must establish beyond a reasonable doubt that:

(1) the killing must have been the product of cool and calm

reflection and not an act prompted by emotional frenzy, panic, or a fit

of rage (cold); and (2) the defendant must have had a careful plan or

prearranged design to commit murder before the fatal incident

(calculated); and (8) the defendant must have exhibited heightened

premeditation (premeditated); and (4) there must have been no

pretense of moral or legal justification.

Lynch v. State, 841 So. 2d 362, 371 (Fla. 2003). The current CCP instruction does

not run afoul of the dictates in Espinosa v. Florida, 505 U.S. 1079 (1992). These

factors circumscribe the aggravator and narrows the class of premeditated murder

defendants eligible for death.

Under Florida law, these factors must be proven beyond a reasonable doubt

and be found by both the jury and trial court before a death sentence may be

imposed. These are limiting sentencing factors and are specific to the defendant,

such as his prior violent criminal history, specific to the manner the crime was

committed, such as CCP. The fact that other aggravators have been added to section

921.141 since 1972 does not render the statute unconstitutional overall or as

applied to Herard. Those other aggravators too, narrow the eligible class of

defendants.

Under this Court's jurisprudence, as long as the state capital sentencing

system: "(1) rationally narrow[s] the class of death-eligible defendants; and (2)

permit[s] a jury to render a reasoned, individualized sentencing determination

based on a death-eligible defendant's record, personal characteristics, and the

circumstances of his crime, the state meets constitutional muster by narrowing the

class. A State enjoys a range of discretion in imposing the death penalty, including

the manner in which aggravating and mitigating circumstances are to be weighed."

Kansas v. Marsh, 548 U.S. at 174. Here, Herard received individualized sentencing

based on a constitutional statute. Certiorari must be denied.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

JOHN M. GUARD

vA G ATTORNEY GENERAL OF FLORIDA

- fl] Bee, Ten PLtAL dex

(/SUZANNE BECHARD

Associate Deputy Attorney Gener /

Florida Bar No. 147745