Opposition Brief — John Sexton, Petitioner v. Florida

No. 24-6942

In the Supreme Court of the United States

JOHN SEXTON,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

JAMES UTHMEIER

ATTORNEY GENERAL OF FLORIDA

CARLA SUZANNE BECHARD

Associate Deputy Attorney General

*Counsel of Record

Christina Z. Pacheco

Senior Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

CarlaSuzanne.Bechard@myfloridalegal.com

(813) 287-7900

COUNSEL FOR RESPONDENT

Capital Case

QUESTION PRESENTED

Whether this Court should grant review of the Florida Supreme Court’s

decision applying harmless error that is not in conflict with any other decision,

when there is no important federal question at issue, and when granting

certiorarl review will benefit no other case due to the unique circumstances

and posture of this case.

rt

TABLE OF CONTENTS

PAGK(S)

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TABLE OF CITATIONS 0000... cee eeececescceseeceeseetesteeesceeeseecescesenecesansesueeseneeeesetesaeessntess iv

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

STATEMENT OF JURISDICTION... cece ceceeseecsseeesseeesesseseeseaseesesaeseaetsaresenees 1

STATEMENT OF THE CASE AND FACTS joie eee cceeececeseeeeeeceeceeteeeseeseeteeneesaeensees 1

REASONS FOR DENYING THE PETITION... ee eeceesceeeeeeereeseeeseerenteceetseeeeeeeeees 4

This Case Presents No Conflict..............ccccccessecccceeeseeceeseeseeneeeeeeeneeeeeetenensenessans 4

There is No Clear Federal Right at Issue. .................ceeeessecceeeecesseeseeenenseeeeesnsaes 7

The Issue Here is Unique and Has No Prospective Impact..................:sc00e000e 8

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ili

TABLE OF CITATIONS

Page(s)

Cases

Arizona v. Fulminante,

499 U.S. 279 (1991) ooo. ee ccc cccceecccceceessseeceeceascesceaecesceneasssceecoussecscesesseeceeseuseseeeaceeessaaeees 6

Braxton v. United States,

BOO U.S. 3844 (1997) 0... cece cccccceeceecececceaeeeteeeeeenaaaaeseeeeeeeeeeeceneeassecteeeceseeseeaenteeseeeenees 6

Hurst v. Florida,

B77 U.S. 92 (2016) .cecceeccseccsecsuecsuessuecsuessucsucssucsarssuessecssccsutcssessuessessuteracssueeneesatessessesees 2

Illinois v. Gates,

AG2 U.S. 213 (1983) ..cccceccoecsecssecsecsuesseesucssecsessessessucssessussusssessucsaessessursnessessuesatsstenscavee 6

McCoy v. Louisiana,

584 U.S. 414 (2018) ooo cccccccsnssnnnseeeceeceeanaseeececeeececeaasaaacssseereesceseesanaaaees 3, 4, 5,9

Neder v. United States,

B27 U.S. 1 (1999) ccccccscccseccoccssecssecsuecssessscssessuecsessuecsucsscssessusssucssssssssecsuessuessecssecsseesens 6

Rockford Life Ins. Co. v. Ill. Dep’t of Revenue,

482 U.S. 182 (1987) oo. cccccssssssceeeseeeeeessssssssssesceeeensceesneaauaeeesecescessenseeeeesensevsnseees 8

Sexton v. State,

221 So. 3d 547 (Fla. 2017) ...........cccssessessssssesseessssessssesesssssssssssnsnssseccesssecesssecesseerseees 1,2

Sexton v. State,

399 So. 3d 1102 (Pla. 2025) o.oo... ccc ccccccccceceeeeeceeseececcesceseesceseeseeseceeeeeeseetscsseeeeecs 3

Sexton v. State,

AO2 So. 3d 270 (Fla. 2024) ...ccccecccecssessseeseccsessssscesuessussseesavecsesesessuessecsanesseseees 1, 2,3,8

United States v. Johnston,

QE U.S. 220 (1QQ5) .cecececcceccseecsecssucssessseececssessuesseseuesesessuessecsaesssessussssesanessessassssecssecses 8

United States v. Read,

918 F. 3d 712 (Oth Cir. 2019) oo... ceecesceesseesssesssscssscnenscecssacsseesauaauscuaeecesseceeeecees 6

Statutes

28 U.S.C. § 1257(a) oo ececccccereccecceceeccececcecceceeecceeneceeeeecseeceeseesensesseseuseucassuseasaesseucesereesse 1

US. Const. amend XI... eccccessceccesecceceseseencceceeeeessnseeeeeeeseessecusaneasaeceseeesceueeseeenees 7

Iv

OPINION BELOW

The Florida Supreme Court’s opinion is published at Sexton v. State, 402 So.

3d 270 (Fla. 2024).

STATEMENT OF JURISDICTION

Petitioner invokes the jurisdiction of this Court based upon 28 U.S.C. § 1257(a).

Respondent agrees that this statutory provision sets out the scope of this Court’s

certiorari jurisdiction but submits that this case is inappropriate for the exercise of

this Court’s discretionary jurisdiction.

STATEMENT OF THE CASE AND FACTS

In 2010, John Sexton brutally murdered a 94-year-old woman that had

befriended him after hiring him to cut her lawn. Sexton v. State, 221 So. 3d 547, 550

(Fla. 2017). Sexton bludgeoned her to death and left her nearly unrecognizable and

naked body in her home with her breast sliced off and a ceramic vase protruding from

her rectum. Jd. Her cheek bones and chin were crushed, bones around the eyes

broken, brain bruised, and spine dislocated. Id. Sexton bludgeoned and sexually

battered her while she was alive, and he continued inflicting injuries to her body after

she died—he tore her rectum, removed her breast, burned her vaginal area, and

stabbed her. Id.

There was overwhelming evidence linking Sexton to the murder, including

eyewitnesses observing Sexton in the victim’s home and his vehicle in her driveway

around the time she was murdered as well as forensic expert testimony that the

victim’s DNA was on Sexton’s clothing with a 1 and 69 trillion frequency. Id at 552.

Sexton also had the victim’s DNA on his hand with a 1 and 76 million frequency. Id.

Sexton was found guilty of first-degree murder and sentenced to death by the trial

judge after the jury recommended death by a ten-to-two vote. Id. at 553.

The Florida Supreme Court affirmed Sexton’s conviction on direct appeal but

vacated his death sentence and remanded the case back to the trial court for a

resentencing pursuant to Hurst v. Florida, 577 U.S. 92 (2016). Sexton v. State, 221

So. 3d 547, 559 (Fla. 2017).

Despite the case being remanded for a Hurst error, Sexton chose to waive his

penalty-phase jury. Sexton v. State, 402 So. 3d 270, 274 (Fla. 2024). Further, Sexton

only permitted his counsel to present “selective mitigation” rather than all the

mitigation that was available. Jd. at 276. After Sexton’s counsel presented the “super

soft mitigation,” Sexton’s counsel rested. The trial court, against Sexton’s objection,

chose to call Sexton’s mitigation specialist as a court witness to testify about the

mitigation that she had found. Jd. Sexton objected based on her testimony being

“concessionary by nature” that would go toward “conceding the guilt of a crime that

[he] did not commit.” Id.

The trial court ultimately sentenced Sexton to death. On the direct appeal of

his resentencing proceeding, Sexton raised numerous claims, including that the trial

court violated his Sixth Amendment right to counsel and to control his defense by

calling his defense mitigation specialist as a court witness. The Florida Supreme

Court held that it was an error to call the mitigation specialist, who was part of the

defense team, as a witness over Sexton's objection, but the court found the error

harmless. Jd. at 279.

The Florida Supreme Court specifically rejected Sexton’s argument that the

trial court’s calling of the mitigation specialist constituted a structural error under

McCoy v. Louisiana, 584 U.S. 414 (2018). The court distinguished Sexton’s case where

McCoy dealt with the defense counsel’s concession of guilt, and Sexton’s guilt was not

at issue during his penalty phase. Id. at 279.

In finding the error in Sexton’s case harmless, the Florida Supreme Court

emphasized that the lower court did not rely on the testimony at issue when

analyzing the mitigating circumstances, nor did the court consider the testimony

when finding the aggravating factors. Jd. at 280. Further, the trial court determined

that the murder was highly aggravated, and it gave the aggravating factors great

weight. Jd. Thus the Florida Supreme Court found that there was no reasonable

probability that the error contributed to Sexton’s death sentence.

The court also denied Sexton’s remaining claims and affirmed his sentence of

death. Id. at 284. Sexton filed a motion for rehearing, which was denied. Sexton v.

State, 399 So. 3d 1102 (Fla. 2025).

Sexton then petitioned this Court for certiorari review.

REASONS FOR DENYING THE PETITION

This Case Presents No Conflict.

Sexton argues that the Florida Supreme’s finding of harmless error, rather

than structural error, was an “improper rejection” of McCoy. Sexton is incorrect. The

lower court’s holding in no way conflicts with McCoy.

The holding in McCoy was limited to a situation in which the defendant

insisted that he did not engage in the charged offenses and he “adamantly objected”

to an admission of guilt during the guilt phase of trial. McCoy, 584 U.S. at 417.

Despite the defendant’s objections, the trial court permitted defense counsel to tell

the jury during the guilt phase that the defendant was guilty of committing the three

murders he was charged with. Jd. This Court held “it is the defendant’s prerogative,

not counsel’s to decide on the objective of his defense: to admit guilt in the hope of

gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the

State to prove his guilt beyond a reasonable doubt.” Jd. at 417-418.

Unlike McCoy, Sexton’s argument here does not involve a concession of guilt,

a concession to a lesser-inclusive offense, or an admission to an element of an offense.

It does not even involve a concession to aggravation or mitigation. Rather, Sexton

challenges whether it was a proper for the trial court to call his mitigation expert as

a court witness to testify about potential mitigation. In addition, the proceeding at

issue here involved the penalty phase, not the guilt phase, and there was no jury.

Accordingly, McCoy is not controlling.

The error in Sexton’s case was an entirely different kind of error than McCoy,

so the Florida Supreme Court was not required under McCoy to deem the error

structural. “Structural error affects the framework within which the trial proceeds,

as distinguished from a lapse or flaw that is simply an error in the trial process itself.”

McCoy, 584 U.S. at 427 (cleaned up). An error might also count as structural “when

its effects are too hard to measure.” Jd. This Court held that the error in McCoy was

structural because the attorney’s admission blocked the defendant’s right to make

the fundamental choices about his own defense.! Id. at 428. And this Court

determined that the “effects of the admission” would be immeasurable “because a jury

would almost certainly be swayed by a lawyer’s concession of his client’s guilt.” Id.

That is not the case here.

There was no jury to be swayed in Sexton’s case because Sexton waived his

penalty-phase jury. And unlike McCoy, Sexton’s counsel never admitted to his guilt

or the existence of aggravating factors. The mitigation specialist testified for the court

in support of mitigation in the avoidance of a death sentence. The trial court wanted

to hear the testimony so she could be apprised of all potential mitigation when

considering whether to sentence Sexton to life in prison or death. Nevertheless, there

1 It is worth noting that Justice Ginsburg wrote the majority opinion, and in Justice

Alito’s dissent, he emphasized that the majority created a “newly discovered

fundamental right” and “[t]he constitutional right that the Court has now

discovered—a criminal defendant’s right to insist that his attorney contest his guilt

with respect to all charged offenses—is like a rare plant that blooms every decade or

so.” McCoy, 584 U.S. at 430-33 (Alito, J., dissenting).

5

was no reversible error because the trial court did not ultimately rely on the

testimony when sentencing Sexton.

Given how different Sexton’s case is from McCoy, the Florida Supreme Court’s

finding of harmless error in no way conflicts with McCoy. Nor does the lower court’s

holding conflict with United States v. Read, 918 F. 3d 712, 719 (9th Cir. 2019), which

involved an entirely different factual scenario where the defense counsel presented

an insanity defense despite the defendant’s objection. Sexton has offered no case

indicating that harmless error analysis could not be applied here.

This Court has long recognized that “most constitutional errors can be

harmless.” Neder v. United States, 527 U.S. 1, 8 (1999) (quoting Arizona v.

Fulminante, 499 U.S. 279, 309 (1991)). “Indeed, we have found an error to be

structural, and thus subject to automatic reversal, only in a very limited class of

cases.” Neder, 527 U.S. at 8 (internal quotations omitted). Sexton has offered no case

conflicting with the lower court’s decision to apply harmless error.

A principal purpose for certiorari jurisdiction “is to resolve conflicts”

“concerning the meaning of provisions of federal law.” Braxton v. United States, 500

U.S. 344, 347 (1991); see also Sup. Ct. R. 10(c) (where a state court has decided an

important federal question in a way that conflicts with relevant decisions of this

Court). In the absence of such conflict, certiorari is rarely warranted. Sup. Ct. R. 10.

As this Court has acknowledged, “there are strong reasons to adhere scrupulously to

the customary limitations of [the Court’s] discretion.” Illinois v. Gates, 462 U.S. 213,

232 (1983). Sexton has cited no compelling reason to warrant this Court’s review.

6

Instead, Sexton asks this Court to grant review “to clarify” how the trial court’s

error should be classified. Petition at 17. Sexton further asks this Court to “clarify”

that McCoy was implicated. Petition at 24. Merely clarifying a holding is not the same

thing as resolving a conflict. This is not a compelling case for certiorari.

This Case Is a Poor Vehicle for Addressing Sexton’s Claim that a

Sentencing Court’s Error in Calling a Defense Mitigation Witness

Was Structural Error.

While the Florida Supreme Court found that the trial court violated the Sixth

Amendment by calling the mitigation specialist as a court witness, the State

maintains that the Sixth Amendment is not at issue here. If this Court were to grant

certiorari, the State would contend that the Florida Supreme Court’s determination

was erroneous, and thus that this Court need not reach the question of whether any

such error would be structural. This case is therefore a poor vehicle to address the

structural-error question, even if it were otherwise worthy of review.

The Sixth Amendment provides that “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

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.” U.S. Const. amend XI.

In arguing that the Sixth Amendment is implicated, Sexton states that “the

trial court usurped the presentation of mitigation? and interfered with Sexton’s right

to counsel by calling his mitigation specialist as a court witness.” Petition at 14. But

Sexton had the right to the assistance of counsel for his defense. He was not denied

counsel. His counsel presented the mitigation that Sexton chose to present, and his

counsel limited the mitigation that Sexton did not want to present.

Sexton presented his case during the penalty phase of his trial and he rested.

It was not until after his defense rested that the trial court, on its own, called the

mitigation specialist as a court witness. Even if the trial court violated Florida law in

doing so, as Sexton contends, Petition at 15, that question of state law would not be

reviewable by this Court. See Rockford Life Ins. Co. v. Ill. Dep’t of Revenue, 482 U.S.

182, 184 n.3 (1987) (explaining that issues that have not divided the courts or are not

important questions of federal law do not merit this Court’s attention).

The Issue Here is Unique and Has No Prospective Impact.

The question in this case is dependent upon such unique and unusual facts

that it does not meet this Court’s criteria for granting review. See, e.g., United States

v. Johnston, 268 U.S. 220, 227 (1925) (“We do not grant a certiorari to review evidence

and discuss specific facts.”). It is hard to conceive another case in which the same set

2 Sexton does not appear to be challenging the compulsory process or the

Confrontation Clause aspect of the Sixth Amendment. And while Sexton argued on

appeal that the attorney-client privilege and work product were implicated, the

Florida Supreme Court deemed those arguments unpreserved for not having been

raised in the trial court. Sexton, 402 So. 3d at 279, n. 4.

8

of circumstances would exist that would lead a trial court to call a mitigation

specialist to testify as a court witness during the penalty phase of trial about potential

mitigation that was not presented to the court by the defense. Any such case would

be “a rare plant that blooms every decade or so.” McCoy, 584 U.S. at 430-33 (Alito, J.,

dissenting). It is fact-specific and unlikely to have widespread impact or importance.

In sum, this case is not worthy of this Court’s attention.

CONCLUSION

Sexton has not provided any compelling reason for this Court to grant

certiorari review. Accordingly, the petition for writ of certiorari should be denied.

Respectfully submitted,

JAMES UTHMEIER

ATTORNEY GENERAL OF FLORIDA

CARLA SUZANNE BECHARD

Associate Deputy Attorney General

Florida Bar No. 147745

Counsel of Record

Christina Z. Pacheco

Senior 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