Opposition Brief — Herring v. Crosby
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Supreme Court, U.S.
FILED
APR 1 2 2004
DOCKET NO. 03-1284 OFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
TED HERRING,
Petitioner,
V.
JAMES V. CROSBY, SECRETARY,
DEPARTMENT OF CORRECTIONS, FLORIDA
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
KENNETH S. NUNNELLEY
ASSISTANT ATTORNEY GENERAL
Florida Bar No. 998818
OFFICE OF THE ATTORNEY GENERAL
444 Seabreeze Blvd., Fifth Floor
Daytona Beach, Florida 32118
Telephone: (386)238-4990
Facsimile: (386)226-0457
@i BEST AVAILABLE COPY
QUESTIONS PRESENTED FOR REVIEW
{Capital Case]
[Restated]
Whether this Court should exercise certiorari jurisdiction to
review the denial of a state motion for post-conviction relief based on
a matter of state law, where the claim was not timely raised in state
court, the ruling does not conflict with any other court opinion or
address any unsettled question of federal constitution law, and
exercising jurisdiction would require retroactive application of a new
rule of constitutional law?
LT
Brie paper ccnaerostarsecmene mann sit OT NST CORIL Caren ty ee cmp SS SE a et aaa
TABLE OF CONTENTS
Page(s)
QUESTIONS PRESENTED FOR REVIEW .................. 1
py et Ps Per ree ee Iv
CEEATIAN FO GPRS EAPO onc cissawncwcveneseenns ]
SEATEOEING CE FARM TEON 6 occ desi enexieneweeages l
CONSTITUTIONAL PROVISIONS INVOLVED ............ 2
SE ALORENE GIP EAU GAD oo os cscs cwaseseusaswenes aes 3
REASONS WHY THE WRIT SHOULD BE DENIED ........ 7
Ds 6 5 5. 0u.0 es ms eee de nee eee 7
THE RING V. ARIZONA CLAIM WAS NOT
PRESENTED TO THE STATE COURTS IN A
TIMELY FASHION, AND IS PROCEDURALLY
BARRED UNDER FLORIDA LAW.
Th ss00 50 wns sua lek eae eee ae 8
THE RING CLAIM WAS CORRECTLY DECIDED
BY THE STATE COURT BASED UPON THE
APPLICATION OF STATE LAW.
RING DOES NOT INVALIDATE THE FLORIDA
DEATH PENALTY STATUTE, DOES NOT
REQUIRE JURY SENTENCING, AND DOES NOT
SUPPLY A BASIS FOR REVERSAL OF
HERRING’S DEATH SENTENCE.
(Es REE eee ee ge 15
CERTIORARI REVIEW IS INAPPROPRIATE
BECAUSE HERRING SEEKS THE APPLICATION
OF A NEW RULE OF CONSTITUTIONAL LAW
IN A COLLATERAL PROCEEDING.
OE ee 18
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Adams v. Robertson,
ee UTE 5cciks hak ceed an eunegenebeneeese eee 7
Agostini v. Felton,
es TEE EET Te Tee eer ee Pre rr 13
Apprendi v. New Jersey.
FF ee eee Pere or passim
Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.,
ee be ce SRR CT Pere 7
Cardinale v. Louisiana,
ge gi Tee eT Te Tere Te rer re rrr re 7
~ City of Canton, Ohio v. Harris,
er PES oa orc de cece desee sd checker ede aeecees 7
DeStefano v. Woods,
EEE Tee eT eee eee Cre 17
Granfinanciera, S.A. v. Nordberg,
ee eee ee eee ne er rere yee 7
Harris v. Alabama,
Pee Se Ee os 6 xa tC eR aaa Ven ee eek aeeinne seared 1]
Harris v. United States,
oo ere eer rrr oer rere res Pree 16
Hildwin v. Florida,
ee Ee 5 5 ka debe oe aGan sede Rieke eee ees 10, 13
1V
Holly Farms Corp. v. N.L.R.B.,
ge SS | Teer eT Tree rr oe ee 7
Matsushita Elec. Industrial Co. v. Epstein,
FO Ge Pe Ce 6 5 ork ko ce been ess ices eee 7
McKoy v. North Carolina,
te A ED 6 05 00 50445440450 e eee 13
Mills v. Maryland,
Se er LOE oe oa ok kk ke snnyseoeeeeriasee eee 13
Mullaney v. Wilbur,
tae ek ree erry Nr or 8
Proffitt v. Florida,
ee ee COT ok eve bbanne weueceupaure eee 7, 10, ¥1, 13
Ring v. Arizona,
Fe ae + hb vss 6 kg 4 oe eeneeeaee passim
Rockford Life Insurance Co. v. Illinois Department of Revenue,
482 US. 182 (1987)... cece cece cece teceaennctaes 9
Rodriguez de Quijas v. Shearson/American Express, Inc.,
Se es OE ON 65 a ke one nee weed ae Ree eee 13
Spaziano v. Florida,
oc ch a Nah lc PER eT ee rere 10, 11, 13
Summerlin v. Stewart,
341 F.3d 1082 (9th Cir. 2003),
cert. granted, 124 S. Ct. 833 (Dec. 1, 2003) ............. 16, 17
Taylor v. Freeland & Kronz,
er rr err ere Te eee 7
Teague v. Lane,
we er rere re rye 15, 16
Vv
Turner v. Crosby,
ee ROTe CE MUNG AE. BOOED ia 6a oc nbsetcdecseceans 16, 17
United States v. Cotton,
ss 5 a a's 4k 0 eo eRe eee Ones 16
Walton v. Arizona,
Ry, eee rarer de rare ea 9
Yist v. Nunnemaker,
i NN ing ia mb, AA a ORM ee RARE 7
Ziegler v. Crosby,
ee BO LEE. BOOED 6 oc ov bekie ekewasseack¥eenn 16
STATE CASES
Alvord v. State,
| aa 13
Anderson v. State,
841 So. 2d 390 (Fla.), ;
Gort. Gomted, 1243.Ct. 406 2003S) .. wc ccc ccccessccewcece 14
Anderson v. State,
863 So. 2d 169 (Fla. 2003),
cert. denied, 2004 WL 547148 (U.S. Mar. 22, 2004) ......... 14
Bottoson v. Moore,
833 So. 2d 693 (Fla.),
cert. denied, 537 U.S. 1070 (2002) ................. 8, 9, 12-14
Brown v. Moore,
S00 So. 2d 223 (Fla. 2001) 2... ccc ccc cc ccc c ccc ccsccees 13
Bruno v. Moore,
838 So. 2d 485 (Fla. 2002),
cert. denied, 124 S.Ct. 100 (2003) ........................ 14
Card v. State,
BOS So. 26 G13 Cla. QOOT) 2. ccc cc ccc cc cee ccccee 13
Chavez v. State,
832 So. 2d 730 (Fla. 2002),
cert. denied, 123 S.Ct. 2617 (2003) ....................... 14
Cummings-El v. State/Crosby,
OOS BO. 26 246 Wie. 2003) 2... ccc ccc cccsvcccccccs 14
Davis v. State,
28 Fla. L. Weekly S835 (Fla. Nov. 20, 2003) ............... 14
Davis v. State,
GOP OO, BOGGS CPi. BOGS) noc cc cc cc cect cucncvcucens 14
Doorbal v. State,
837 So. 2d 940 (Fla.),
cert. denied, 123 S.Ct 2647 (2003) ........ ccc ccc ccc ncece 14
Ex parte Briseno,
2004 Tex.Crim.App. LEXIS 199 (Feb. 11, 2004) ............ 16
Fotopoulos v. State,
te Be: a 14
Guzman v. State,
28 Fla. L. Weekly S829 (Fla. Nov. 20, 2003) ............... 14
Henry v. State,
DOL BO. 2 STD Ge. F008) nnn ccc cc ccc cen ccccncecs 14
Herring v. Dugger,
SO Oe PEP PUD. ks ede dec aan ie yckssweectuass 6
Herring v. State,
440 So. 2d 1049 (Fla.),
Cant. Gated, BPS. FOP CAFO) a cc scssccwevesccncccvcees 6
Hertz v. State,
2 & 7 0, © PeerreeererrreerT Terry ey erry 13
Johnston v. State,
863 So. 2d 271 (Fla. 2003),
cert. denied, 2004 WL 180326 (U.S. Mar. 22, 2004) ......... 14
King v. Moore,
831 So. 2d 143 (Fla.),
cert. denied, 537 U.S. 1067 (2002) ................ 8,9, 13,14
Kormondy v. State,
845 So. 2d 41 (Fla.),
gave. Gombe, TIA GGA. SOE GIRS) oc ccc cvescccsscveccéess 14
Looney v. State,
ee es MED kv boo bose sos ee ces hankavceness 13
Lucas v. State/Moore,
Re a ee Ts ED. 5 vss oo heed es ean weeeees bens 14
Lugo v. State,
845 So. 2d 74 (Fla.),
cart. Gonlod, 194 SACL. SFO GAGS) occ cece cscccecesccenes 14
Marquard v. State,
fb we Foye ® iererrrr rrr eer re rr reer rr 14
Mills v. Moore,
786 So. 2d 532 (Fla.),
euet. Mate, SIS UD. TOTS GROOT) «ek vec ccescccwnsvenss 8-10
Vill
Owen v. State,
862 So. 2d 687 (Fla. 2003),
Petition for cert. filed,
Case. No. 03-9345, (U.S. Mar. 4, 2004) ................... 14
Parker v. State,
29 Fla. L. Weekly S27 (Fla. Jan 22, 2004) ................. 14
Ring v. State,
Pe PES BOD iio 5 6 Gan bistconeaeesecdunurns 10
Rivera v. State/Crosby,
SOF OM. SUP EEM BOO) os cis cei cerdescacecucavansess 14
Robinson v. State/Crosby,
865 So. 2d 1259 (Fla.),
cert. denied, 124'S.Ct. 1197 (20048)... cc ccc ccccvcccs 14
Shere v. Moore,
Sa ey ee ED kv cos ed baw bende eadaeeucen cs 8,10
Spencer v. State/Crosby,
Pe OR Be OP EDs sane oak 0 ddan be Rene vedusannus 14
Thompson v. State,
OOP BO, BO GRE . TI ogc enced sa ccunnsanvacenras 13
Way v. State,
FOO OO. BE Oe BD nb Senn ka Sbcnds cas cdvacexxaes 12
Witt v. State,
Bet GO, Be ee Oa BID hk ove kbd cede bw cles bknndencues 15
Zakrzewski v. State,
eee 14
OTHER AUTHORITIES
pe ee ES PPT rere TT Ce eer er ee ory.
Antiterrorism and Effective Death Penalty Act of 1996 ....... 16
SPR UO cs kan cakucevenbasakasien se tenes 2,12
ee eee eT ree ET ere rr hore rey e 2
DOCKET NO. 03-1284
IN THE SUPREME COURT OF THE UNITED STATES
TED HERRING,
Petitioner,
Vv.
JAMES V. CROSBY, SECRETARY,
DEPARTMENT OF CORRECTIONS, FLORIDA
Respondent.
CITATION TO OPINION BELOW
The Florida Supreme Court’s decision in Herring’s state
habeas corpus proceeding is an order issued on December 10, 2003.
Pet. App. 10a. The Respondents’ Answer to the petition for writ of
habeas corpus, which raised a state procedural bar to consideration of
the claim contained in the petition for writ of certiorari, is attached as
Respondent's Appendix A.
STATEMENT OF JURISDICTION
Herring asserts that this Court’s jurisdiction is based upon 28
U.S.C. § 1257(a). Respondents agree that this statutory provision sets
out the scope of this Court’s certiorari jurisdiction, but respectfully
submits that this case is inappropriate for the exercise of the Court’s
discretionary jurisdiction.
CONSTI IONAL PROVISIONS INVOLVED
In the body of his petition, Herring asserts that the Sixth and
Fourteenth Amendments to the Constitution of the United States are
at issue in this proceeding. Herring also asserts that §775.082 and §
921.141 of the Florida Statutes are at issue. Those provisions of the
Florida Statutes set out the capital sentencing scheme that has been
repeatedly upheld by this Court.
In addition to the foregoing constitutional and statutory
provisions which are involved in this case, Herring has also set out the
Fifth and Eighth Amendments to the Constitution of the United States
in the Appendix to his petition. If inclusion of those authorities is
intended to also invoke those Amendments, Respondents respectfully
suggest that those provisions have nothing to do with this case. The
only issue contained in Herring’s petition is based on Ring v.
Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S.
466 (2000) (which are based expressly on the Sixth Amendment) --
Respondents respectfully suggest that the Fifth and Eighth
Amendments have nothing to do with this proceeding.
STATEMENT OF THE CASE
On pages 1-5 of the petition, Herring sets out an
argumentative and largely irrelevant discussion of the history of this
case. The Respondents rely on the following statement of the facts of
this case, which is taken from the Florida Supreme Court’s 1984
decision in his case:
Shortly after 3:00 a.m. on May 29, 1981, a customer
entered a Daytona Beach convenience store and
found the store clerk dead. The clerk's body was lying
on the floor behind the cash register counter. The
customer and a newspaper distribution man who had
arrived at the store called the police. In investigating
the crime scene, the police found a note on the
counter which read:
This is a hole-up put all the money
in a papper bag change to then lay
flat on the floor are get shot [sic].
A medical examiner testified that the store clerk
suffered three gunshot wounds: (1) a wound to the
left side of the head just forward of the left ear; (2) a
wound to the left side of the neck; and (3) a wound to
the palm of the left hand with an exit wound on the
back side of the hand. The examiner also testified that
the wound which caused the clerk's death was the
wound to the head and that the clerk survived for no
longer than a minute. It was determined that $23.34
was missing from the cash register.
Approximately two weeks after the robbery-murder,
Herring was arrested after he was observed entering
and exiting a vehicle which had been stolen in
another convenience store robbery. He was taken to
the Daytona Beach Police Department, where he was
advised of his Miranda rights. Herring signed a
written waiver of his Miranda rights and was
interrogated by detectives. During the course-of the
interrogation, he was asked about several armed
robberies, including the May 29 convenience store
robbery-murder. A judgment of guilty in one of these
other armed robberies was entered against appellant
on January 8, 1982. Appellant, in his first statement,
which was taped, told the detectives that he planned
to rob the convenience store and prepared a holdup
note which directed the clerk to turn over money or
be shot. He claimed that when he proceeded to the
_counter, a second man came to the counter, pulled a
gun, demanded money from the clerk, and then, after
he was given the money, told the clerk to lie on the
floor. As this occurred, Herring stated, he backed
down the aisle of the store seeking cover and, while
he was doing so, the other man shot the clerk twice
and left the store. He stated he then ran from the
store.
One of the investigating officers testified that after
making this statement Herring asked to speak to the
officer privately; that during this private
conversation, Herring admitted that he killed the
clerk and that his previous story was untrue. The
officer also testified that during this conversation
Herring said that he shot the clerk a second time to
prevent him from being a witness against him. At
trial, Herring denied that this conversation.occurred.
Later in the interrogation, Herring made a third
statement, which was taped. In this statement Herring
confessed that he went to the convenience store with
a gun, asked the clerk for cigarettes, and presented
the holdup note. According to Herring, the clerk
made a movement as if he were going to grab for the
gun. Herring admitted that he then shot the clerk once
in the head and once again after the clerk fell to the
floor.
Herring testified that this third statement was given
only because the police were harassing him. He
admitted writing the holdup note, however, and one
of the fingerpnnts on the note was identified as the appellant's.
At the conclusion of the guilt phase of the trial, the
jury found appellant guilty of armed robbery and
first-degree murder.
In the penalty phase of the trial, the state put into
evidence a certified copy of the judgment and
sentence for the prior unrelated robbery with a
firearm, which judgment was entered on January 8,
1982. The state also presented the testimony of a
probation and parole officer who had spoken to
Herring in June, 1981, concerning the murder. She
testified that Herring denied committing the murder
but that he also commented that the man "got what he
deserved for trying to play hero" and that the victim's
death meant "one less cracker."
Appellant's mother testified on his behalf and stated
that she and the appellant's father were divorced
when the appellant was four years of age; that the
appellant was treated for psychological problems and
was diagnosed as hyperactive with learning
disabilities; and that the appellant, who dropped out
of school after completing the fifth grade, has an IQ
of eighty. The appellant also attempted to present the
testimony of three attorneys who had represented
persons charged with first-degree murder who
received life sentences after pleading guilty. This
testimony was rejected by the trial court. The trial
court also rejected the proffer of two poems authored
by the appellant which were contained in a clinical
report written about him. No testimony was proffered
concerning the report, nor was the person who
prepared the report called to testify.
By an eight-to-four vote the jury recommended the
imposition of the death penalty. The trial judge
imposed the death penalty, finding four aggravating
and two mitigating circumstances. The aggravating
circumstances found by the trial judge were: (1) that
appellant had previously been convicted of a robbery
with a firearm, a felony involving the use or threat of
violence to a person; (2) that the murder was
committed while appellant was engaged in the
commission of a robbery; (3) that the murder was
committed for the purpose of avoiding or preventing
a lawful arrest; and (4) that the murder was
committed in a cold, calculated, and premeditated
manner without any pretense of moral or legal
justification. In mitigation, the trial judge found (1)
that the appellant had a difficult childhood and had
learning disabilities, and (2) that he was nineteen
years old at the time of the crime.
Herring v. State, 440 So. 2d 1049, 1051-53 (Fla.), cert. denied, 469
U.S. 989 (1984).'
Herring has filed various other collateral attack proceedings
challenging his conviction and sentence, but the only one relevant to
this proceeding is the state petition for writ of habeas corpus he filed
in the Florida Supreme Court on or about June 23, 2003. The Florida
Supreme Court denied relief on that petition on December 10, 2003.
Pet. App. 10a.? Herring filed his petition for a writ of certiorari on
March 8, 2004.
‘The Florida Supreme Court subsequently receded from the application of
the cold, calculated and premeditated aggravator to the facts of this case. Herring v.
Dugger, 528 So. 2d 1176 (Fla. 1988). That matter is not before this Court.
?At this time, Herring has a post-conviction motion pending in the Circuit
Court of Volusia County, Florida, as well as an appeal from the denial of his Federal
habeas corpus petition pending in the United States Court of Appeals for the Eleventh
Circuit. Those proceedings do not implicate the issue contained in this petition.
6 |
|
ASONS WHY THE WRIT SHOULD BE DENIED
I. THE RING V. ARIZONA CLAIM WAS NOT
PRESENTED TO THE STATE COURTS IN A
TIMELY FASHION, AND iS PROCEDURALLY
BARRED UNDER FLORIDA LAW.
This claim is inappropriate for the exercise of this Court’s
discretionary jurisdiction because, the Ring/Apprendi claim could
have been, but was not, timely raised in the state courts. (App. A).
This claim has been available since this Court’s decision in Proffitt v.
Florida, 428 U.S. 242, 252 (1976), when this Court held that the
Constitution does not require jury sentencing. The basis of the
Ring/Apprendi claim has been available to Herring since the time he
was sentenced to death, but was not raised as a basis for relief until his
2003 state habeas corpus petition. Because that is so, this claim is
procedurally barred under settled Florida law, and, consequently, has
never been properly presented to the State courts for decision.
Because this claim was not timely raised below, it is
inappropriate for the exercise of this Court's certiorari jurisdiction.
Adams v. Robertson, 520 U.S. 83 (1997); Matsushita Elec. Industrial
Co. v. Epstein, 516 U.S. 367 (1996) ("generally [we] do not address
arguments that were not the basis for the decision below."); Holly
Farms Corp. v. N.L.R.B., 517 U.S. 392 (1996); Taylor v. Freeland &
Kronz, 503 U.S. 638 (1992) ("[o]rdinarily, this Court does not decide
questions not raised or resolved in the lower court[s].");
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989); Browning-
Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S.
257 (1989); City of Canton, Ohio v. Harris, 489 U.S. 378 (1989);
Youakim v. Miller, 425 U.S. 231, 234 (1976); Cardinale v. Louisiana,
394 U.S. 437 (1969). To the extent that Herring may argue that the
Florida Supreme Court’s order denying relief does not explicitly rest
on State procedural bar grounds, the Respondents suggest that the
procedural bar defense was clearly asserted in the answer to the
habeas corpus petition, and that this Court should not presume that, by
silence, the State Court ignored its own procedural rules. Yist v.
Nunnemaker, 501 U.S..797 (1991). This Court should decline to
exercise its certiorari jurisdiction to entertain this claim.
Il. THE RING CLAIM WAS CORRECTLY
DECIDED BY THE STATE COURT BASED
UPON THE APPLICATION OF STATE LAW.
The law is well-settled that the State courts are the final
arbiters of state law. Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)
(this Court “repeatedly has held that state courts are the ultimate
expositors of state law ... and that we are bound by their constructions
except in extreme circumstances.”). While Herring claims that Florida
law is to the contrary (Petition, at 8), the Florida Supreme Court has
explicitly held that the maximum sentence exposure following
conviction of a capital felony is death:
The plain language of section 775.082(1) is clear that
the maximum penalty available for a person
convicted of a capital felony is death. When section
775.082(1) is read in para materia with section
921.141, Florida Statutes, there can be no doubt that
a person convicted of a capital felony faces a
maximum possible penalty of death.
Mills v. Moore, 786 So. 2d 532, 538 (Fla.), cert. denied, 523 US.
1015 (2001). The Florida Supreme Court has consistently interpreted
Florida’s capital sentencing statute in that way, both before and after
Ring was decided. See, Shere v. Moore, 830 So. 2d 56 (Fla. 2002)
(holding that a Florida defendant is eligible for a death sentence on
conviction of a capital felony); Bottoson v. Moore, 833 So. 2d 693
(Fla.), cert. denied, 537 U.S. 1070 (2002); King v. Moore, 831 So. 2d
143 (Fla.), cert. denied, 537 U.S. 1067 (2002). Because that is the law
in Florida, Herring’s reliance on decisions from other state courts is
misplaced -- it does not matter what interpretation another state
supreme court has placed on its particular statute because only the
Florida Supreme Court can make a binding interpretation of Florida
law. There is no conflict between Courts, nor can there be.’ The
3In his effort to create a “conflict” among courts, Herring points to decisions
from Missouri, Colorado, and Nevada. Significantly, he makes no mention of any
decisions from Alabama, Indiana, and Delaware, the other three “hybrid” states which
this Court grouped with Florida in Ring. Ring, 536 U.S. at 608, n.6.
g es
Florida Supreme Court correctly decided the Apprendi/Ring issue, and
this Court should decline to exercise its certiorari jurisdiction. See,
Rockford Life Insurance Co. v. Illinois Department of Revenue, 482
U.S. 182, 184, n.3 (1987) (cases that have not aivided the courts or
presented important, unsettled questions of federal law usually do not
merit certiorari review).
Il. RING DOES NOT INVALIDATE THE
FLORIDA DEATH PENALTY STATUTE, DOES
NOT REQUIRE JURY SENTENCING, AND
DOES NOT SUPPLY A BASIS FOR REVERSAL
OF HERRING’S DEATH SENTENCE.
Ring v. Arizona did not invalidate the Florida death penalty
statute, and does not provide a basis for reversal of Herring’s death
sentence. In Apprendi, this Court announced the rule that "any fact
that increases the penalty for a crime beyond the proscribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt." Apprendi, 530 U.S. at 490. In Ring, this Court
extended Apprendi to Arizona's capital sentencing scheme and found
that Arizona's scheme violated the Sixth Amendment because it
allowed a trial judge, sitting without a jury, to find an aggravating
circumstance necessary for the imposition of the death penalty. Ring,
536 U.S. at 609. However, in Mills v. Moore, supra, which was
decided prior to Ring, the Florida Supreme Court did not apply
Apprendi to Florida's capital sentencing scheme, because, even if
Apprendi did apply to capital sentencing, the maximum penalty for
first degree murder in Florida (unlike Arizona) is death. Mills,
786 So. 2d at 536-38.
Shortly after this Court overturned Walton v. Arizona, 497
U.S. 639 (1990) in Ring v. Arizona, 536 U.S. 584 (2002), the Florida
Supreme Court stayed active death warrants in two capital cases,
purportedly to assess the impact of Ring to its prior Mills decision. On
October 24, 2002, the Florida Supreme Court issued opinions in these
two cases and upheld Florida's statutory capital scheme against an
attack based on Ring. See Bottoson v. Moore, 833 So. 2d 693 (Fla.
2002); King v. Moore, 831 So. 2d 143 (Fla. 2002). The Florida
Supreme Court's conclusion that death is the maximum sentence for
first degree murder in Florida is not called into question by this
Court's Ring or Apprendi decisions, neither of which overruled prior
decisions by this Court rejecting constitutional challenges to Florida's
capital sentencing procedures. See, e.g., Hildwin v. Florida, 490 U.S.
638, 640-41 (1989); Spaziano v. Florida, 468 U.S. 447 (1984); Proffitt
v. Florida, 428 U.S. 242, 253 (1976).
Herring also argues that Apprendi and Ring apply to Florida's
capital sentencing procedures because, under Florida law, a death
sentence may not be imposed unless a trial judge acting independently
of the jury makes findings of fact in support of an aggravating factor.
Mills is the law in Florida, and clearly distinguishes between the death
eligibility determination (which is made at the guilt stage proceeding)
and the death selection stage, which takes place at the penalty stage
of a Florida capital trial. In Mills and Shere, the Florida Supreme
Court made it clear that, under Florida law, the defendant is death
eligible on conviction for first degree murder -- it is during the penalty
phase that the sentence determination is made.‘
Although Petitioner claims that Ring applies to Florida, Ring
is merely the application of the holding in Apprendi to Arizona's
capital scheme. Clearly, the application of Apprendi was limited to
factual findings, other than a prior conviction, which increase the
statutory maximum for a charged offense. Because the Arizona
Supreme Court interpreted its state law as prescribing only a life
sentence upon conviction for first degree murder, Ring, 536 U.S. at
595-96; Ring v. State, 25 P.3d 1139, 1150 (Ariz. 2001), Ring fits
squarely within the Apprendi holding, - - Ring does not, however,
extend or expand the Sixth Amendment night at issue in Apprendi.
Although Ring applied Apprendi to Arizona's capital
sentencing law and recognized that Walton had misinterpreted Arizona
law, it did not cast doubt on the Florida Supreme Court's conclusion
(in Mills and later cases) that Apprendi and Ring were not implicated
‘Stated in slightly different terms, at the penalty (sentence) stage, the choice
is made between death or life imprisonment -- both are sentences for which the
defendant is eligible by virtue of his conviction.
10
under Florida's death penalty statute.* The plain language of Apprendi
and Ring establishes that those cases come into play when a defendant
is exposed to a penalty exceeding the maximum allowable under the
jury's verdict. The Florida Supreme Court has clearly held that under
Florida law death ok the statutory maximum for first degree murder.
Because that is so, Herring was death-eligible based upon his
conviction for first degree murder -- Ring is inapplicable to Florida’s
death sentencing scheme, and does not make Herring’s death sentence
or Florida's sentencing scheme unconstitutional.
Contrary to Herring’s position, Ring proves only that the
Florida Supreme Court was correct, because Apprendi (and more
importantly, Ring) does not require jury sentencing. As Justice Scalia
stated in concurrence (joined by Justice Thomas), this Court's decision
in Ring “has nothing to do with jury sentencing." Ring, 536 U.S. at
612 (Scalia, J., concurring) [emphasis added]. Apprendi and Ring
involve the jury's role in determining death eligibility, and, once that
determination is made (as it is at the guilt stage by a Florida jury),
there is no further constitutional issue because Apprendi and Ring do
not require that a jury perform the actual selection of sentence.
Relying directly on Proffitt, 428 U.S. at 252, Ring acknowledged that
"[i]t has never [been] suggested that jury sentencing is constitutionally
required." See also Harris v. Alabama, 513 U.S. 504, 515 (1995)
(holding that the Constitution permits the trial judge, acting alone, to
impose a capital sentence and is thus not offended when a State
further requires the sentencing judge to consider a jury's
recommendation and trusts the judge to give it the proper weight).
Ring involves only the requirement that the jury find the defendant
death-eligible, and the Florida statute complies with that constitutional
mandate. Ring, 536 U.S. at 597 n.4. The actual sentencing decision
may constitutionally be made by the trial court. See Spaziano, 468
U.S. at 459 (finding Sixth Amendment has no guarantee of right to
jury trial on issue of sentence).
*The error in Walton, which was corrected in Ring, was in interpreting the
Arizona death sentencing statute as making the death eligibility determination at the
guilt stage of a capital trial. The Arizona Supreme Court interpreted the statute to the
contrary. Walton made no error in the interpretation of Florida law, which has always
determined death eligibility at the guilt stage.
11
Aggravating factors in Florida are not elements of the offense,
_ but are capital sentencing guidelines which channel the sentencer’s
discretion for Eighth Amendment purposes (which have nothing to do
with the Sixth Amendment issues driving Ring and Apprendi). See
Bottoson v. Moore, 833 So. 2d 693, 729 (Fla. 2002) ("Given the
operation of Florida's statutory scheme, aggravating factors should not
be considered elements, nor . . . are they the functional equivalent of
elements of a greater offense such that Ring would require that they be
found unanimously by a jury.") (Lewis, J., concurring). Florida's
capital sentencing scheme (§921.141, Florida Statutes) sets out
guidelines for the sentencer to follow in evaluating the various
sentencing selection factors related to the offense and the offender by
providing accepted statutory aggravating factors and mitigating
circumstances to be considered. Because a defendant is eligible for
the statutory maximum sentence of death upon conviction of first
degree murder, further proceedings to evaluate and assess the
sentencing selection factors clearly do not violate due process. The
sentencer may constitutionally be given discretion in determining the
appropriate sentence (which, in the case of a capital conviction, is
either life or death) so long as the jury has decided that the defendant
is eligible for the death penalty. That is what Florida law provides,
and, therefore, Ring and Apprendi have no impact on the :
constitutionality of Florida’s sentencing statute.
Apprendi and Ring hold that any fact that increases the penalty |
beyond the statutory maximum must be determined by the jury - ]
however, since the Florida Supreme Court has clearly held that death
is the maximum punishment for first degree murder, the penalty (or
sentence exposure) is not increased by the subsequent finding of
aggravators. The aggravators are constitutionally mandated guidelines
(or sentence selection criteria) which exist to satisfy the Eighth
Amendment and protect against capricious and arbitrary sentences --
they are not elements of the crime, and they have nothing to do with
the Apprendi/Ring analysis.
To the extent that it is relevant, the Florida Supreme Court has
held that the jury's advisory sentence need not be unanimous. See Way
v. State, 760 So. 2d 903, 924 (Fla. 2000) (Pariente, J., concurring)
(noting jury's death recommendation need not be unanimous);
12
Thompson v. State, 648 So. 2d 692, 698 (Fla. 1984) (holding simple
majority vote of death is constitutional); Alvord v. State, 322 So. 2d
533 (Fla. 1975) (same). The issuance of Apprendi and Ring has not
changed anything. Card v. State, 803 So. 2d 613, 628 n.13 (Fla. 2001)
(rejecting claim that Apprendi requires unanimous jury
recommendation; "capital jury may recommend a death sentence by
a bare majority vote"); Hertz v. State, 803 So. 2d 629, 648 (Fla. 2001)
(same); Looney v. State, 803 So. 2d 656, 675 (Fla. 2001) (same);
Brown v. Moore, 800 So. 2d 223 (Fla. 2001) (rejecting argument that
aggravators must be found by unanimous jury).°
Finally, Ring did not overrule the numerous cases where this
Court upheld Florida's capital sentencing against constitutional
challenges. See Hildwin, 490 U.S. at 640-41 (stating that case
"presents us once again with the question whether the Sixth
Amendment requires a jury to specify the aggravating factors that
permit the imposition of capital punishment in Florida and concluding
that the Sixth Amendment does not require that the specific findings
authorizing the imposition of the sentence of death be made by the
jury"); Proffitt, 428 U.S. at 252 (holding Constitution does not require
jury sentencing); Spaziano , 468 U.S. at 459 (same). This Court has
clearly stated, "[w]e reaffirm that '[i]f a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the
case which directly controls, leaving to this Court the prerogative of
overruling its own decisions." Agostini v. Felton, 521 U.S. 203, 237
(1997) (quoting Rodriguez de Quijas v. Shearson/American Express,
Inc., 490 U.S. 477, 484 (1989)). Neither Apprendi nor Ring has
implicitly overruled the above cases which have repeatedly upheld
Florida’s death penalty act.
The Florida Supreme Court's opinions in Bottoson and King
recognize and respect the position that this Court has the prerogative
of overruling its own decisions. Although each of the Florida
*Of course, unanimity requirements with respect to mitigating factors has
been rejected by this Court. McKoy v. North Carolina, 494 U.S. 433 (1990)
(determining that requirement of unanimous findings of mitigators is
unconstitutional); Mills v. Maryland, 486 U.S. 367 (1988) (same).
13
Supreme Court's justices wrote separate concurring opinions in
Bottoson and King, the court unanimously determined that Ring did
not entitle the defendants to relief. The Florida Supreme Court has
continuously followed this precedent and denied relief based on Ring.
See Robinson v. State & Crosby, 865 So. 2d 1259 (Fla. 2004), cert.
denied, 124 S.Ct. 1197 (2004); Parker v. State, 29 Fla. L. Weekly S27
(Fla. Jan 22, 2004); Davis v. State, 28 Fla. L. Weekly S835 (Fla. Nov.
20, 2003); Guzman v. State, 28 Fla. L. Weekly S829 (Fla. Nov. 20,
2003); Zakrzewski v. State, 866 So. 2d 688 (Fla. 2003); Johnston v.
State, 863 So. 2d 271 (Fla. 2003), cert. denied, 2004 WL 180326 (U.S.
Mar. 22, 2004); Cummings-El v. State/Crosby, 863 So. 2d 246 (Fla.
2003); Anderson v. State, 863 So. 2d 169 (Fla. 2003), cert. denied,
2004 WL 547148 (U.S. Mar. 22, 2004); Owen v. State, 862 So. 2d 687
(Fla. 2003), Petition for cert. filed, Case. No. 03-9345, (U.S. Mar. 4,
2004); Henry v. State, 862 So. 2d 679 (Fla. 2003); Rivera v.
State/Crosby, 859 So. 2d 495 (Fla. 2003); Davis v. State, 859 So. 2d
465 (Fla. 2003); Marquard v. State, 850 So. 2d 417, 431 n.12 (Fla.
2002); Lugo v. State, 845 So. 2d 74, 119 (Fla.), cert. denied, 124 S.Ct.
320 (2003); Kormondy v. State, 845 So. 2d 41 (Fla.), cert. denied, 124
S.Ct. 392 (2003); Spencer v. State/Crosby, 842 So. 2d 52 (Fla. 2003);
Anderson v. State, 841 So. 2d 390 (Fla.), cert. denied, 124 S.Ct. 408
(2003); Lucas v. State/Moore, 841 So. 2d 380 (Fla. 2003); Fotopoulos
v. State, 838 So. 2d 1122 (Fla. 2002); Bruno v. Moore, 838 So. 2d 485
(Fla. 2002), cert. denied, 124 S.Ct. 100 (2003); Doorbal v. State, 837
So. 2d 940 (Fla.), cert. denied, 123 S.Ct 2647 (2003); Bottoson v.
Moore, 833 So. 2d 693 (Fla.), cert. denied, 123 S.Ct. 662 (2002);
Chavez v. State, 832 So. 2d 730 (Fla. 2002), cert. denied, 123 S.Ct.
2617 (2003); King v. Moore, 831 So. 2d 143 (Fla.), cert. denied, 123
S.Ct. 657 (2002).
Herring became eligible for the death penalty upon his
conviction for first degree murder, and the jury determined that the
appropriate sentence was death upon consideration of sentencing
selection factors. Petitioner cannot demonstrate that Florida law is
constitutionally inadequate under existing precedent. Finally, even if
this Court were to recede from all its previous Sixth and Eighth
Amendment decisions upholding Florida's capital sentencing
procedures, Herring is not entitled to relief under Ring as he has
previously been convicted of another violent felony (robbery with a
14
firearm) in addition to being convicted of the robbery during which the
murder occurred (thereby establishing the murder during the course of
an enumerated felony aggravator) -- those aggravators clearly fall
outside the scope of Apprendi/Ring. This Court should deny the
petition for writ of certiorari.
IV. CERTIORARI REVIEW IS
INAPPROPRIATE BECAUSE HERRING
SEEKS THE APPLICATION OF A NEW RULE
OF CONSTITUTIONAL LAW IN A
COLLATERAL PROCEEDING.
Finally, this Court should decline to exercise its discretionary
jurisdiction because Herring is seeking retroactive application of a
new rule of constitutional law to his conviction and sentence, which
have been final since 1984. In Teague v. Lane, 489 U.S. 288, 298
(1989), this Court noted that retroactivity is “properly treated as a
threshold question, for, once a new rule is applied to the defendant in
the case announcing the rule, evenhanded justice requires that it be
applied retroactively to all who are similarly situated.” Herring fails
to address the threshold question of the retroactive application of Ring
to his conviction and sentence. Instead, Herring asserts that this
“Court need not address retroactivity in considering the petition”
because the state habeas corpus petition “was governed by the test for
determining retroactivity under Florida law.” Petition, at 17. That
argument confuses the nature of this proceeding and the standard by
which this Court decides the retroactivity question.’
Neither this Court nor the Florida Supreme Court has directly
’Herring’s plea to be allowed to litigate the retroactivity issue in state court
under the Witt v. State, 387 So. 2d 922 (Fla. 1980), standard ignores and devalues this
Court’s role. This Court decides retroactivity questions based on Teague, and, given
that the State court proceeding is final for all purposes, Herring cannot “reopen” the
retroactivity issue in state court.
15
addressed retroactivity of either Ring* or Apprendi®; however, the
Texas Court of Criminal Appeals recently held Ring is not retroactive.
Ex parte Briseno, 2004 Tex.Crim.App. LEXIS 199 (Feb. 11, 2004).
The two federal circuit courts of appeal that have directly addressed
whether Ring may be retroactively applied, in terms relevant here,
have split on this issue.’® In Turner v. Crosby, 339 F.3d 1247 (11th
Cir. 2003), the Eleventh Circuit Court of Appeals, in reviewing a
Florida conviction and death sentence, ruled that Turner could not
collaterally attack his convictions and sentences on the basis of a Ring
error because Ring did not apply retroactively. Shortly after the
Turner decision issued, a different panel of the Eleventh Circuit ruled
in Ziegler v. Crosby, 345 F.3d 1300 (11th Cir. 2003), that Zeigler’s
challenge to his Florida death sentence fails because neither Apprendi
nor Ring applies retroactively on collateral review to convictions that
became final before these cases were decided.
In Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003), cert.
granted, 124 S. Ct. 833 (Dec. 1, 2003), the Ninth Circuit, in reviewing
Arizona’s capital sentencing structure, came to the opposite
conclusion. Significantly, the Ninth Circuit’s decision turned on its
‘Justice O’Connor in her dissent in Ring implied that Ring was not
retroactive as she noted that capital defendants will be barred from taking advantage
of the court’s holding on federal collateral review. Ring, 536 U.S. 584, 621 (2002)
(O’Connor, J., dissenting).
*This Court has held, however, that an Apprendi error is not plain error
because failing to include ine quantity of drugs in an indictment, while an Apprendi
violation, did not affect the fairness, integrity or public reputation of judicial
proceedings. United States v. Cotton, 535 U.S. 625 (2002). If a found error is not of
such magnitude as to constitute plain error, it follows that it is not of such fundamental
significance as to warrant retroactivity. In Harris v. United States, 536 U.S. 545
(2002), Justice Thomas observed in his dissenting opinion that “[nJo Court of
Appeals, let alone this Court, has held that Apprendi has retroactive effect." Harris,
536 U.S. at 581. All eleven federal circuit courts of appeal have ruled that Apprendi
is not to be retroactively applied.
"While other federal circuit courts of appeal have addressed Ring's
retroactivity in terms of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), as applied to successive habeas corpus petitions, only two have directly
addressed Ring's retroactivity in terms relevant here and in light of this Court’s
general retroactivity analysis as set forth in Teague v. Lane, 489 U.S. 288 (1989).
16
conclusion that the retroactive application of Ring was necessary to
ensure the fairness of Arizona’s capital sentencing scheme. In fact,
the Court went so far as to conclude that application of Ring was
necessary to “significantly improve the accuracy of capital trials in
Arizona.” Summerlin, 341 F.3d at 1115.
This is not the case, however, in Florida. In Turner, the
Eleventh Circuit observed that Florida’s pre-Ring capital sentencing
procedure “does not diminish the likelihood of a fair sentencing
hearing.” The Court went on to note that “Ring is based on the Sixth
Amendment right to a jury trial, not on a perceived, much less
documented need to enhance accuracy or fairness of the fact-finding
in a Capital sentencing context.” Turner, 339 F.3d at 1286.'' This
Court has also refused to apply a Sixth Amendment right to jury trial
retroactively when it could not be said that the fact-finding process is
more fair or reliable when done by a jury rather than by a judge.
DeStefano v. Woods, 392 U.S. 631 (1968).
Herring became eligible for the death penalty upon his
conviction for first degree murder -- the jury determined that the
appropriate sentence was death upon consideration of sentencing
selection factors. The jury further determined unanimously that he
was guilty of armed robbery, a factor which was determined to be an
aggravating factor. Herring cannot demonstrate that Florida law is
constitutionally inadequate under existing precedent. Even if this
Court were to recede from all its previous Sixth and Eighth
Amendment decisions upholding Florida’s capital sentencing
procedures, any error would be harmless in this case. Because
certiorari review will not have any impact on the outcome of this case,
this Court should deny Herring’s petition.
Herring has failed to demonstrate that there are special or
important reasons compelling certiorari review of his case -- the
petition should be denied.
"This ruling is consistent with this Court’s observation in Ring that the right
to a jury trial did not “turn on the relative rationality, fairness, or efficiency of
potential factfinders.” Ring, 536 U.S. at 607.
17
CONCLUSION
Based upon the foregoing arguments and authorities, the
petition for writ of certiorari should be denied.
Respectfully submitted,
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
KENNETH S. NUNNELLEY
Assistant Attorney General
Florida Bar No. 998818
OFFICE OF THE ATTORNEY GENERAL
444 Seabreeze Blvd., Fifth Floor
Daytona Beach, Florida 32118
Telephone: (386)238-4990
Facsimile: (386)226-0457
18
DOCKET NO. 03-1284
IN THE SUPREME COURT OF THE UNITED STATES
TED HERRING,
Petitioner,
Vv.
JAMES V. CROSBY, SECRETARY,
DEPARTMENT OF CORRECTIONS, FLORIDA
Respondent.
APPENDIX TO BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
KENNETH S. * UNNELLEY
ASSISTANT ATTURNEY GENERAL
Fla. Bar No. 998818
OFFICE OF THE ATTORNEY GENERAL
444 Seabreeze Blvd., Fifth Floor
Daytona Beach, Florida 32118
Telephone: (386)238-4990
Facsimile: (386)226-0457
IN THE SUPREME COURT OF FLORIDA
TED HERRING,
Petitioner,
Case No. SC03-1144
Vv.
JAMES V. CROSBY, JR.,
Secretary, Department
of Corrections, et.al,
Respondents.
/
RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS
COME NOW the Respondents, by and through the
undersigned counsel, and respond as follows to Herring’s petition for
writ of habeas corpus. For the reasons set out herein, the petition
should be denied in all respects -- likewise, there is no justification for
oral argument in this case, and it should not be allowed.
RESPONSE TO JURISDICTION
Respondents agree that this Court has jurisdiction, under the
Rules of Appellate Procedure, to entertain petitions for writs of habeas
corpus.
RESPONSE TO “STATEMENT OF FACTS”
The “statement of facts” set out on pages 2-4 of the petition
contains few facts relevant to-the crimes for which Herring was
convicted and sentenced to death, and, moreover, contains an
argumentative dissertation on the shortcomings of Herring’s 1985
Florida Rule of Criminal Procedure 3.850 proceeding. That case has
been final for years, and may not be relitigated in this petition for writ
of habeas corpus.
The State relies on the following facts, as found by this Court
in affirming Herring’s convictions and sentence:
A-1
The appellant, Ted Herring, was convicted of armed
robbery and the first-degree murder of a convenience
store clerk. In accordance with the jury's advisory
recommendation, the trial judge imposed the death
sentence. We have jurisdiction, [footnote omitted]
and affirm the conviction and sentence of death.
The following are the relevant facts. Shortly after
3:00 a.m. on May 29, 1981, a customer entered a
Daytona Beach convenience store and found the store
clerk dead. The clerk's body was lying on the floor
behind the cash register counter. The customer and a
newspaper distribution man who had arrived at the
store called the police. In investigating the crime
scene, the police found a note on the counter which
read:
This is a hole-up put all the money
in a papper bag change to then lay
flat on the floor are get shot [sic].
A medical examiner testified that the store clerk
suffered three gunshot wounds: (1) a wound to the
left side of the head just forward of the left ear; (2) a
wound to the left side of the neck; and (3) a wound to
the palm of the left hand with an exit wound on the
back side of the hand. The examiner also testified that
the wound which caused the clerk's death was the
wound to the head and that the clerk survived for no
longer than a minute. It was determined that $23.34
was missing from the cash register.
Approximately two weeks after the robbery-murder,
Herring was arrested after he was observed entering
and exiting a vehicle which had been stolen in
another convenience store robbery. He was taken to
the Daytona Beach Police Department, where he was
advised of his Miranda rights. Herring signed a
written waiver of his Miranda rights and was
A-2
interrogated by detectives. During the course of the
interrogation, he was asked about several armed
robberies, including the May 29 convenience store
robbery-murder. A judgment of guilty in one of these
other armed robberies was entered against appellant
on January 8, 1982. Appellant, in his first statement,
which was taped, told the detectives that he planned
to rob the convenience store and prepared a holdup
note which directed the clerk to turn over money or
be shot. He claimed that when he proceeded to the
counter, a second man came to the counter, pulled a
gun, demanded money from the clerk, and then, after
he was given the money, told the clerk to lie on the
floor. As this occurred, Herring stated, he backed
down the aisle of the store seeking cover and, while
he was doing so, the other man shot the clerk twice
and left the store. He stated he then ran from the
store.
One of the investigating officers testified that after
making this statement Herring asked to speak to the
officer privately; that during this private
conversation, Herring admitted that he killed the
clerk and that his previous story was untrue. The
officer also testified that during this conversation
Herring said that he shot the clerk a second time to
prevent him from being a witness against him. At
trial, Herring denied that this conversation occurred.
Later in the interrogation, Herring made a third
statement, which was taped. In this statement Herring
confessed that he went to the convenience store with
a gun, asked the clerk for cigarettes, and presented
the holdup note. According to Herring, the clerk
made a movement as if he were going to grab for the
gun. Herring admitted that he then shot the clerk once
in the head and once again after the clerk fell to the floor.
Herring testified that this third statement was given
only because the police were harassing him. He
A-3
LE
admitted writing the holdup note, however, and one
of the fingerpnnnts on the note was identified as the appellant's.
At the conclusion of the guilt phase of the trial, the
jury found appellant guilty of armed robbery and
first-degree murder.
In the penalty phase of the trial, the state put into
evidence a certified copy of the judgment and
sentence for the prior unrelated robbery with a
firearm, which judgment was entered on January 8,
1982. The state also presented the testimony of a
probation and parole officer who had spoken to
Herring in June, 1981, concerning the murder. She
testified that Herring denied committing the murder
but that he also commented that the man "got what he
deserved for trying to play hero" and that the victim's
death meant "one less cracker."
Appellant's mother testified on his behalf and stated
that she and the appellant's father were divorced
when the appellant was four years of age; that the
appellant was treated for psychological problems and
was diagnosed as hyperactive with learning
disabilities; and that the appellant, who dropped out
of school after completing the fifth grade, has an IQ
of eighty. The appellant also attempted to present the
testimony of three attorneys who had represented
persons charged with first-degree murder who
received life sentences after pleading guilty. This
testimony was rejected by the trial court. The trial
court also rejected the proffer of two poems authored
by the appellant which were contained in a clinical
report written about him. No testimony was proffered
concerning the report, nor was the person who
prepared the report called to testify.
By an eight-to-four vote the jury recommended the
imposition of the death penalty. The trial judge
imposed the death penalty, finding four aggravating
A-4
and two mitigating circumstances. The aggravating
circumstances found by the trial judge were: (1) that
appellant had previously been convicted of a
robbery with a firearm, a felony involving the use
or threat of violence to a person; (2) that the
murder was committed while appellant was
engaged in the commission of a robbery; (3) that
the murder was committed for the purpose of
avoiding or preventing a lawful arrest; and («) that
the murder was committed in a cold, calculated, and
premeditated manner without any pretense of moral
or legal justification. In mitigation, the trial judge
found (1) that the appellant had a difficult childhood
and had learning disabilities, and (2) that he was
nineteen years old at the time of the crime.
Herring v. State, 446 So. 2d 1049, 1051-53 (Fla. 1984). [emphasis
added].' To the extent that Herring attempts, in footnote 1, to
“incorporate by reference” everything that has previously been filed
over the 20-year history of this case, that procedure, as attractive as 11
may be to Herring, is not available. It is axiomatic that the purpose of
an appellate brief is to present legal authority in support of the party’s
position, not to “incorporate by reference” the entire record and expect
this Court and the State to decipher what the opposing party’s claims
really are.
RESPONSE TO NATURE OF RELIEF SOUGHT
Herring is not entitled to relief based upon the Apprendi/Ring
claim contained in the petition.
RESPONSE TO POST-CONVICTION PROCEDURAL HISTORY
The post-conviction procedural history set out on pages 4-11
of the petition is substantially correct. Since Herring filed this petition
'On page 3, Herring improperly attempts to relitigate the “non-statutory
aggravator” claim that was found procedurally barred in this Court’s 1986 decision in
this case. Herring v. State, 501 So. 2d, 1279 (Fla. 1986).
A-5
EE — —E—————EEEE
on June 23, 2003, he has filed an application for a certificate of
appealability from the denial of his federal habeas corpus petition with
the Eleventh Circuit Court of Appeals. On August 21, 2003, the
Eleventh Circuit granted the certificate as to three claims.
On August 18, 2003, a case management conference was
conducted by the Volusia County. Circuit Court in Herring’s
successive Rule 3.851 motion in which he alleged that Atkins v.
Virginia, 536 U.S. 304 (2002), prevents the State from carrying out his |
death sentence. The Circuit Court ruled that an evidentiary hearing
will be conducted on the Atkins claim, and, at this juncture, it appears
likely that the hearing will be scheduled for November 2003.
RESPONSE TO GROUNDS FOR RELIEF
I. THE RING V. ARIZONA DECISION DOES NOT
AFFECT FLORIDA DEATH PENALTY LAW’
PRELIMINARY MATTERS
Herring claims that the United States Supreme Court’s Ring
v. Arizona, 536 U.S. 584 (2002), decision invalidates Florida’s long-
upheld capital sentencing structure. There are three fundamental
reasons why the Apprendi/Ring argument fails: that claim is
procedurally barred; Herring’s death sentence is supported by
aggravators that fall outside any interpretation of Apprendi/Ring; and,
the statute under which Herring was sentenced to death provides that,
upon conviction for capital murder, the maximum possible sentence
is death, unlike the statute at issue in Ring.
It is true that Ring clarified the applicability of Apprendi to
capital cases and partially overruled Walton v. Arizona, 497 U.S. 639
(1990). However, Walton had been decided based on a
misunderstanding by the United States Supreme Court of Arizona
? Herring makes this claim despite the complete dissimilarity of the
Florida and Arizona statutes, and despite the fact that no decisions of the United
States Supreme Court upholding the constitutionality of the Florida death penalty
statutes were invalidated, criticized, or otherwise called into question in Ring.
A-6
videnesRanimeremmemnaneaereneaimamaamassatiiiiiiliaaaaiiaaiiiieaiaiiaial
death penalty law, a pivotal fact that is conspicuously absent from
Herring’s habeas petition.’ The fundamental issue in Ring, and the
rationale behind the result, clearly rests on the United States Supreme
Court’s misinterpretation of Arizona’s capital sentencing statute.
Ring at 603-5. However, Ring has no application to Florida’s death
sentencing scheme because the Court did not misinterpret Florida
law. Herring’s claim that Florida’s statute fails because Walton has
been overruled is predicated upon the false (and demonstrably
incorrect) assertion that Florida and Arizona have functionally
identical capital sentencing statutes. A cursory reading of Ring
demonstrates that that is simply not true. Even ignoring the clear
procedural bars and the total legal inapplicability of Ring to the facts
of this case, the basic difference between Arizona and Florida law is
dispositive of Herring’s claims.
A. THE RING CLAIM IS NOT AVAILABLE TO HERRING
BECAUSE IT IS PROCEDURALLY BARRED
AND BECAUSE IT IS NOT
RETROACTIVE TO HIS CASE
1. The Apprendi/Ring claim is procedurally barred.
Herring’s reliance on Ring to support a Sixth Amendment
claim is procedurally barred because it could have been but was not
raised at trial and on direct appeal. The issue in Ring (which is merely
an extension of Apprendi, anyway) is by no means new or novel -- that
claim, or a variation of it, has been known since before the United
States Supreme Court’s 1976 decision in Proffitt v. Florida, 428 U.S.
242, 252 (1976) (holding that the Constitution does not require jury
sentencing). The “basis” for a claim that the sentence imposed in this
case violated Herring’s right to a jury trial has been available since he
> The Ring Court determined that Apprendi and its impact on the prior
decision in Walton required clarification (or correction of the Court’s understanding)
of the role of the jury in Arizona capital sentencing. Nothing in that decision changed
the dynamic of Florida’s capital sentencing scheme under Apprendi and Ring.
A-7
was sentenced to death -- he raised this claim after Apprendi* was
decided, as did other Florida death row inmates, who have been
raising the same claim since well prior to Ring. See, Mills, infra. There
is nothing magical about an Apprendi claim, and, despite the
pretensions of Herring’s brief, Ring is nothing more than the
application of Apprendi to capital cases. There is no justification for
a departure by this Court from application of the well-settled State
procedural bar rules, which this Court reaffirmed in F.B. v. State, 28
Fla. L. Weekly S624 (Fla., July 11, 2003).° The Apprendi claim is
procedurally barred, and all relief should be denied on that basis. See,
e.g., Bundy v. State, 538 So. 2d 445 (Fla. 1985).
2. The aggravators in Herring’s case
fall outside the scope of Apprendi/Ring, and
reliance on those decisions is misplaced.
In addition to being procedurally barred, Apprendi/Ring does
not provide a basis for relief in this case because the rule of law set
out in those cases is inapplicable to the facts of Herring’s case. The
prior violent felony aggravator and the during the course of a robbery
aggravator, both of which are clearly applicable, fall outside of any
conceivable interpretation of Apprendi/Ring.
Under the plain language of Apprendi, a prior violent felony
conviction (which in this case was a prior robbery with a firearm
conviction) is a fact which may be a basis to impose a sentence higher
than that authorized by the jury’s verdict without the need for
* Apprendi v. New Jersey, 530 U.S. 466 (2000), was released on June 26,
2000. Any claims based on that case are untimely because they were not raised until
more than two years after Apprendi was released. Rule 3.851(d), Fla. R. Crim. P.
* In F.B. v. State, this Court was explicit in holding that the only exception
to the contemporaneous objection rule (which Herring clearly did not follow) is when
the error is fundamental, which an Apprendi/Ring claim is not. In this case, there is no
error at all under Apprendi/Ring, and, because that is so, the contemporaneous
objection rule applies and should be enforced by this Court.
A-8
additional jury findings.® There is no constitutional violation (nor can
there be) because the prior conviction constitutes a jury finding which
the judge may rely upon, without additional jury findings, in imposing
sentence. See Almendarez-Torres v. United States, 523 U.S. 224
(1998); Apprendi v. New Jersey, 530 U.S. 466 (2000). Under any view
of the law, and even after Ring, the jury is not required to make a
determination of the prior violent felony aggravator, and that
aggravating circumstance can be found by the judge alone.
Under any interpretation of the facts, the "prior violent felony
conviction" aggravator and the “during the commission of a felony”
aggravator (which is supported by the contemporaneous armed
robbery conviction) obviate any possible Sixth Amendment error.
These two aggravating circumstances are outside of the Apprendi/Ring
holding,’ and, because that is so, those decisions are of no help to
Herring. Herring’s claim has no legal basis because Apprendi/Ring is
inapplicable to the facts of this case as well as because a Florida
conviction for murder made capital establishes that defendant’s
eligibility for a death sentence. Herring’s attempt to bring his case
under the Apprendi/Ring umbrella is an attempt to force the square
peg of Florida’s death penalty statute into the round hole of Ring. No
relief is justified.
* Of course, under Florida law, death is the maximum possible sentence for
the crime of first degree murder, and that is the defendant’s sentence exposure upon
conviction. See Section B, infra. The “higher than authorized by the jury” component
of Apprendi is not applicable to the capital sentencing process in Florida, but that
distinction does not affect the basic premise that a prior felony conviction is a fact that
has already been found by a jury beyond a reasonable doubt, and does not need to be
(and as a policy matter should not be) “re-proven.”
’ The Apprendi Court cited to Jones v. United States, 526 U.S. 227, 243 n.6
(1999), for the proposition that under the Fifth and Sixth Amendments, “any fact
(other than prior conviction) that increases the maximum penalty for a crime must
be charged in an indictment, submitted to a jury, and proven beyond a reasonable
doubt.” Apprendi v. New Jersey, 530 U.S. 466, 476 (2000). [emphasis added]. The
Court has already clearly said that death is the maximum penalty for first degree
murder, so that component of the statement has no application to Florida law. In any
event, Herring’s prior violent felony conviction, and the murder during a robbery
aggravator, are outside any possible (or reasonable) interpretation of Apprendi and
Ring.
A-9
3. Ring is not retroactive to Herring’s case.
In addition to being procedurally barred as well as legally and
factually inapplicable, no court to consider the issue* has held
Apprendi to be retroactive, and Ring is “simply an extension of
Apprendi to the death penalty context.” Cannon v. Mullin, 297 F. 3d
989 (10th Cir. 2002), cert. and stay of execution denied, 536 U.S. 974
(U.S. July 23, 2002)’; In re Johnson, 334 F. 3d 403 (Sth Cir. 2003)
(“Since the rule in Ring is essentially an application of Apprendi,
logical consistency suggests that the rule announced in Ring is not
retroactively available.”). The First and Fourth District Courts of
Appeal have held that Apprendi is not retroactive, as has the Kansas
Supreme Court.'° Figarola v. State, 841 So. 2d 576 (Fla. 4th DCA
® Coleman v. United States, 329 F.3d 77 (2nd Cir. 2003); Goode v. United
States, 305 F.3d 378, 382-85 (6th Cir. 2002); United States v. Brown, 305 F.3d 304,
307-10 (5th. Cir. 2002); United States v. Wiseman, 297 F.3d 975, (10th Cir. 2002);
United States v. Dowdy, 2002 U.S. App. LEXIS 12559 (9th Cir. June 20, 2002);
Curtis v. United States, 294 F.3d 841, 843-44 (7th Cir. 2002); United States v. Mora,
293 F.3d 1213, 1218-19 (10th Cir. 2002); Hines v. United States, 282 F.3d 1002 (8th
Cir. 2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 668 (9th Cir. 2002);
In re Turner, 267 F.3d 225, 227 (3rd Cir. 2001); McCoy v. United States, 266 F.3d
1245 (11th Cir. 2001); Forbes v. United States, 262 F.3d 143, 144 (2nd Cir. 2001);
United States v. Moss, 252 F.3d 993 (8th Cir. 2001); Sanders v. United States, 247
F.3d 139, 151 (4th Cir. 2001); Jn re Tatum, 233 F.3d 857, 859 (Sth Cir. 2000); Jones
v. Smith, 231 F.3d 1227 (9th Cir. 2001); Sustache-Rivera v. United States, 221 F.3d
8, 15 n.12 (Ist Cir. 2000).
° The Cannon Court held, post-Ring, that under Tyler v. Cain, 533 U.S. 656,
661 (2001) “‘under this provision, the Supreme Court is the only entity that can
‘ma[kJe’ a new rule retroactive. The new rule becomes retroactive, not by the
decisions of the lower courts or by the combined action of the Supreme Court and the
lower courts, but simply by the action of the Supreme Court.’”
'© The Alabama Court of Criminal Appeals has held that Apprendi is not
retroactive to collateral review cases. See, Poole v. State, 2001 WL 996300 (Ala.
Crim. App. 2001). The Minnesota Court of Appeals refused to apply Apprendi
retroactively, holding that it was not a watershed rule of criminal procedure, and that
the rule did nothing to enhance the accuracy of a criminal conviction. Meemken v.
State, 2003 Minn. App. LEXIS 661 (June 3, 2003). The Missouri Supreme Court
seems to be the only court that has held that Ring is retroactively applicable. State v.
Whitfield, 2003 Mo. LEXIS 105 (Mo. S.Ct. June 17, 2003). The retroactive
application of Ring is inconsistent and irreconcilable with the same Court’s holding
that Apprendi is not retroactive. State ex. rel. Nixon v. Sprick, 59 S.W. 3d 515 (Mo.
A-10
ee ee ee ee
2003); Hughes v. State, 826 So. 2d 1070 (Fla. Ist DCA 2002)
(certifying question); Whisler v. State, 36 P.3d 290 (Kan. 2001).'' The
United States Supreme Court has previously held that a violation of
the right to a jury trial is not retroactive, DeStefano v. Woods, 392 U.S.
631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), and, because that is the
law, it is wholly illogical to claim that a wholly procedural ruling like
Apprendi or Ring would be treated differently. It is the prerogative of
the United States Supreme Court to make the retroactivity
determination -- that Court has not held Apprendi or Ring retroactive,
and has refused to review cases declining to apply those decisions in
that fashion. Cannon, supra. Ring, like Apprendi, is merely a
procedural ruling which falls far short of being of “fundamental
significance.” Finally, the Eleventh Circuit Court of Appeals has
expressly held, in a Florida death penalty case, that Ring is not
retroactively applicable. Turner v. Crosby, 16 Fla. L. Weekly Fed
C926 (11th Cir. July 29, 2003). This Court should not hold otherwise.
Moreover, the Ring decision is not retroactively applicable
under Witt v. State, 387 So. 2d 922, 929-30 (Fla. 1980). Under Witt,
Ring is not retroactively applicable unless it is a decision of
fundamental significance, which so drastically alters the
underpinnings of Herring’s death sentence that “obvious injustice”
exists. New v. State, 807 So. 2d 52 (Fla. 2001), cert. denied, 536 U.S.
942 (2002). In determining whether this standard has been met, this
Court must consider three factors: the purpose served by the new case;
the extent of reliance on the old law; and the effect on the
administration of justice from retroactive application. Ferguson v.
State, 789 So. 2d 306, 311 (Fla. 2001). Neither Apprendi nor Ring
2001). The conflicting results reached by the Missouri Supreme Court suggest that
reliance on Whitfield would be ill-advised. The Nebraska Supreme Court has held that
Ring is not retroactively applicable. State v. Lotter, 2003 Neb. LEXIS 111 (July 11,
2003).
'! An Apprendi claim is not “plain error,”either. United States v. Cotton, 535
U.S. 625 (2002){indictment’s failure to include the quantity of drugs was an Apprendi
error but did not seriously affect fairness, integrity, or public reputation of judicial
proceedings, and thus did not rise to level of plain error). If an error is not plain error
for direct appeal purposes, it is not of sufficient importance to be retroactively
applicable to collateral proceedings.
A-11
———————
te RN
meet that standard, either.
4. The Apprendi/Ring claim is meritless.
Finally, without waiving the foregoing procedural defenses,
the claim raised by Herring has been expressly rejected by this Court.
See McCoy v. State, 2003 WL 21982066 (Fla. Aug. 21, 2003); Lugo
v. State, 845 So. 2d 74, 119 (Fla. 2003), petition for cert. filed, July
28, 2003, No. 03-5620; Kormondy v. State, 845 So. 2d 41, 54 (Fla.
2003)(““Ring does not require either notice of the aggravating factors
that the State will present at sentencing or a special verdict form
indicating the aggravating factors found by the jury.”), petition for
cert. filed, July 28, 2003, No. 03-5621; Conahan v. State, 844 So. 2d
629 (Fla. 2003), petition for cert. filed, July 3, 2003, No. 03-5209;
Butler v. State, 842 So. 2d 817 (Fla. 2003)(relying on Bottoson v.
Moore, 833 So. 2d 693 and King v. Moore, 831 So. 2d 143 to a Ring
claim in a single aggravator (HAC) case); Banks v. State, 842 So. 2d
788 (Fla. 2003); Spencer v. State, 842 So. 2d 52 (Fla. 2003); Grim v.
State, 841 So. 2d 455 (Fla. 2003), petition for cert filed, June 12,
2003, No. 03-5160; Cole v. State, 841 So. 2d 409 (Fla. 2003);
Anderson v. State, 841 So. 2d 390 (Fla. 2003), petition for cert. filed,
August 8, 2003, No. 03-5860; Lucas v. State/Moore, 841 So. 2d 380
(Fla. 2003); Porter v. Crosby, 840 So. 2d 981 (Fla. 2003)(““Contrary
to Porter’s claims, we have repeatedly held that the maximum penalty
under the statute is death and have rejected the other Apprendi
arguments.”); Fotopoulos v. State/Moore, 838 So. 2d 1122 (Fla.
2003); Bruno v. Moore, 838 So. 2d 485 (Fla. 2002), petition for cert.
filed, May 9, 2003, No. 02-10848; Doorbal v. State, 837 So. 2d 940
(Fla. 2003), petition for cert. filed, April 24, 2003, No. 02-10379;
Bottoson v. Moore, 833 So. 2d 693 (Fla.), cert. denied, 123 S.Ct. 662
(2002); Chavez v. State, 832 So. 2d 730, 767 (Fla. 2002), cert. denied,
123 S.Ct. 2617 (2003); King v. Moore, 831 So. 2d 143 (Fla.), cert.
denied, 123 S.Ct. 657 (2002); Pace v. State/Crosby, 28 Fla. L. Weekly
S415 (Fla. May 22, 2003); Jones v. State/Crosby, 28 Fla. L. Weekly
S395 (Fla. May 8, 2003); Marquard v. State/Moore, 28 Fla. L. Weekly
S389, 27 Fla. L. Weekly S973, 978, n. 12 (Fla. Nov. 21, 2002);
Chandler v. State, 848 So. 2d 1031, 1034 n.4 (Fla. 2003); Lawrence
v. State, 846 So. 2d 440 (Fla. 2003), petition for cert. filed, July 30,
2003, No. 03-5708. This Court should, in addition to denying relief on
A-12
procedural grounds, continue to follow this unbroken line of authority
by denying relief on the merits as an alternative and secondary basis
for the denial of relief.
B. ARIZONA CAPITAL SENTENCING LAW IS DIFFERENT
FROM FLORIDA’S, AS THIS COURT HAS HELD.”
The Arizona statute at issue in Ring is different from Florida’s
death sentencing statutes. The United States Supreme Court failed to
recognize that distinction in Walton, but recognized and corrected its
misinterpretation of Arizona law in Ring. Because Walton was based
on an incorrect interpretation of Arizona law, the suggestion that
Florida’s statute is invalid because Walton has been overruled is
spurious. Since Ring corrected the Court’s error as to Arizona law, no
good faith argument can be made that Florida’s statute is anything like
Arizona’s, especially in light of this Court’s clear interpretation of
Florida law (which is clearly not like Anzona law). The Ring Court
stated:
Based solely on the jury's verdict finding Ring
guilty of first-degree felony murder, the maximum
punishment he could have received was life
imprisonment. See 200 Ariz., at 279, 25 P.3d, at
1151 (citing Ariz. Rev. Stat. § 13- 703). This was so
because, in Arizona, a "death sentence may not
legally be imposed ... unless at least one aggravating
factor is found to exist beyond a reasonable dovt<."
200 Ariz., at 279, 25 P.3d, at 1151 (citing § 13- 703).
The question presented is whether that aggravating
factor may be found by the judge, as Arizona law
specifies, or whether the Sixth Amendment's jury trial
guarantee, [FN3] made applicable to the States by the
Fourteenth Amendment, requires that the aggravating
factor determination be entrusted to the jury. [FN4]
2 In Mills v. Moore, infra, the Florida Supreme Court discussed the
operation of the Florida death sentencing statute, and explained how our statute is
unlike Arizona’s.
A-13
FN3. "In all criminal prosecutions,
the accused shall enjoy the right to a
... trial, by an impartial jury ...."
FN4. Ring's claim is_ tightly
delineated: He contends only that the
Sixth Amendment required jury
findings on the aggravating
circumstances asserted against him.
No aggravating circumstance related
to past convictions in his case; Ring
therefore does not challenge
Almendarez-Torres v. United Statés,
523 U.S. 224, 118 S.Ct. 1219, 140
L.Ed.2d 350 (1998), which held that
the fact of prior conviction may be
found by the judge even if it
increases the statutory maximum
sentence. He makes no Sixth
Amendment claim with respect to
mitigating circumstances. See
Apprendi v. New Jersey, 530 U.S.
466, 490-491, n. 16, 120 S.Ct. 2348,
147 L.Ed.2d 435 (2000) (noting "the
distinction the Court has often
recognized between facts in
aggravation of punishment and facts
in mitigation" (citation omitted)).
Nor does he argue that the Sixth
Amendment required the jury to
make the ultimate determination
whether to impose the death penalty.
See Proffitt v. Florida, 428 U.S. 242,
252, 96 S.Ct. 2960, 49 L.Ed.2d 913
(1976) (plurality opinion) ("[I]t has
never [been] suggested that jury
sentencing is constitutionally
required."). He does not question the
Arizona Supreme Court's authority
A-14
to reweigh the aggravating and
mitigating circumstances after that
“ court struck one aggravator. See
Clemons v. Mississippi, 494 U.S.
738, 745, 110 S.Ct. 1441, 108
L.Ed.2d 725 (1990). Finally, Ring
does not contend that his indictment
was constitutionally defective. See
Apprendi, 530 U.S., at 477, n. 3, 120
S.Ct. 2348 (Fourteenth Amendment
"has not ... been construed to include
the Fifth Amendment night to
‘presentment or indictment of a
Grand Jury'").
Ring v. Arizona, 536 U.S. at 597. [emphasis added]. Under Anzona
law, the determination of death eligibility takes place during the
penalty phase proceedings, and requires the determination that an
aggravating factor exists. Florida law is different."
1. In Florida, death is the maximum sentence for
capital murder.
“(T]he legislature, and not the judiciary determines maximum
and minimum penalties for violations of the law.” State v. 3enitez, 395
So. 2d 514, 518 (Fla. 1981). This Court, long before .ipprendi,'*
concluded that the maximum sentence to which a Florida ca™ ital
'3 The claim that the indictment must contain the aggravators and that the
jury must find them unanimously has been repeatedly rejected by this Court. See,
Vining v. State, 637 So. 2d 921, 927 (Fla. 1994); Fotopoulos v. State, 608 So. 2d 784,
794 n.7 (Fla. 1992); Lightbourne v. State, 438 So. 2d 380 (Fla. 1983). Aggravators
must, of course, be proven beyond a reasonable doubt.
'4 This Court’s interpretation of Florida law is consistent with the description
of Florida’s capital sentencing scheme set out in Proffitt v. Florida, and echoed in
Barclay v. Florida, 463 U.S. $39, 952 (1983) (“[I]f a defendant is found guilty of a
capital offense, a separate evidentiary hearing is held before the trial judge and jury
to determine his sentence.”). If the defendant were not eligible for a death sentence,
there would be no second proceeding.
A-15
defendant is subject following conviction for capital murder is death.’
Apprendi \ed to no change of any sort, by either the Legislature or this
Court.'°
2. Death eligibility in Florida is determined at the
guilt stage.
In Florida, the determination of “death-eligibility” is made at
the guilt phase of a capital trial, mot at the penalty phase, as is the
Arizona practice. This Court has unequivocally said what Florida’s
law is, just as the Arizona Suprer~2 Court did. The difference between
the two states’ capital murder statutes is clear, and controls the
resolution of the claim. Because death is the maximum penalty for
first-degree murder in Florida (and because it is not in Arizona),
Herring’s Apprendi/Ring claim collapses because nothing triggers the
Apprendi protections in the first place. See, Barnes v. State, 794 So.
2d 590 (Fla. 2001) (Apprendi not applicable when judicial findings did
not increase maximum allowable sentence).
Nothing that takes place at the penalty phase of a Florida
capital trial increases the authorized punishment for the offense of
capital murder -- the penalty phase proceeding (which includes the
jury) is the selection phase, which follows the eligibility
determination, and which does not implicate the Apprendi/Ring issue.
The state law issue which led to the constitutional violation in
Arizona’s capital sentencing statute has already been decided
differently by this Court, and that decision (in Mills and the cases
relying on it) differentiates and distinguishes Arizona’s system from
'S “The maximum possible penalty described in the capital sentencing
scheme is clearly death.” Mills, supra. See, e.g., Lightbourne v. State, 438 So. 2d
380, 385 (Fla. 1983); Sireci v. State, 399 So. 2d 964 (Fla. 1981); Mills v. Moore, 786
So. 2d 532, 537-8 (Fla. 2001); Porter v. Moore, 28 Fla. L. Weekly S33 (Fla. June 20,
2002); Sweet v. Moore, 822 So. 2d 1269 (Fla. 2002).
'© Whatever criticisms Herring may direct against the Mills decision cannot
alter the fundamental fact that this Court’s explanation of Florida’s capital sentencing
statutes has not changed. By correctly stating that Apprendi excluded capital cases,
this Court did not ignore its responsibility in applying the applicable cases under
Florida law as they applied to the statute.
A-16
Ee ee Fe ee eee |
. ne
Florida’s constitutional capital sentencing statute.
Section 782.04 of the Florida Statutes defines capital murder,
and Section 775.082 establishes that the maximum penalty for capital
murder is death, in clear contrast to the Arizona statute, which does
not. Arizona, unlike Florida, does not define any offenses as
“capital” in its criminal statutes. There is no constitutional defect
with Florida’s statute.
3. Ring has no impact in Florida, and the decisions
upholding the constitutionality of Florida law
remain undisturbed.
Ring did not disturb any pnor United States Supreme Court
decisions upholding the constitutionality of Florida’s death penalty
scheme, including Proffitt, supra, Spaziano v. Florida, 468 U.S. 447
(1984), Hildwin v. Florida, 490 U.S. 638 (1989), Barclay v. Florida,
463 U.S. 939 (1983), and Dobbert v. Florida, 432 U.S. 282 (1977).
And, as this Court has recognized, “[t]he Supreme Court has
specifically directed lower courts to ‘leav[e] to this Court the
prerogative of overruling its own decisions.’ Agostini v. Felton, 521
U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (quoting
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S.
477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)).” Mills v. Moore,
786 So. 2d 532, 537(Fla. 2001)."
The United States Supreme Court did not disturb its prior
decisions upholding the constitutionality of Florida’s capital
sentencing process, and that result is dispositive of Herring’s claims.
The Court had every opportunity to directly address Apprendi/Ring in
the context of Florida’s capital sentencing scheme, and expressly
declined to do so. Cf. Hodges v. Florida, 506 U.S. 803 (1992),
wherein the United States Supreme Court vacated the Florida Supreme
Court’s opinion for further consideration in light of Espinosa v.
'7 To rule in Herring’s favor, this Court would have to overrule the five cases
cited above, as well as Clemons, infra, Cabana v. Bullock, 474 U.S. 376 (1986),
Blystone v. California, 494 U.S. 299, 306-7 (1990), Harris v. Alabama, infra, and
Gardner v. Florida, 430 U.S. 349 (1977).
A-17
Florida, 505 U.S. 1079 (1992).
On June 28, 2002, the United States Supreme Court remanded
four cases in light of Ring: Harrod v. Arizona, 536 U.S. 953 (2002);
Pandeli v. Arizona, 536 U.S. 953 (2002); Sansing v. Arizona, 536 U.S.
954 (2002); and Allen v. United States, 536 U.S. 953 (2002). None of
those remands is surprising given that three are Arizona cases and the
other is a Federal Court of Appeals decision based on Walton v.
Arizona, supra. However, the Court denied certiorari in seven cases
raising the “Ring” issue: Brown v. Alabama, 536 U.S. 964 (2002);
Mann v. Florida, 536 U.S. 962 (2002); King v. Florida, 536 U.S. 962
(2002); Bottoson v. Florida, 536 U.S. 962 (2002); Card v. Florida,
536 U.S. 963 (2002); Hertz v. Florida, 536 U.S. 963 (2002); and
Looney v. Florida, 536 U.S. 966 (2002). Obviously, if the Court had
intended to apply Ring to Florida capital sentencing, it had every
opportunity to do so. The fact that it did not speaks for itself. Further,
and of even greater significance, the United States Supreme Court
denied a stay of execution July 23, 2002, in an Oklahoma case which
raised a Ring claim. See, Cannon v. Oklahoma, 536 U.S. 974 (2002).
This Court should not accept Herring’s invitation to “review” the
decisions of the United States Supreme Court.
C. RING DOES NOT REQUIRE JURY SENTENCING, AND
THIS COURT SHOULD NOT ACCEPT HERRING’S
INVITATION TO EXTEND RING.
Herring's argument that Ring requires jury sentencing is
incorrect -- that is an Eighth Amendment argument, not a Sixth
Amendment one, which confuses the additional procedures the Florida
legislature provided to avoid arbitrary jury sentencing (which is the
Eighth Amendment component) with the death-eligibility
determination, which is the Sixth Amendment component, and which
is the focus of Apprendi/Ring. In upholding the constitutionality of
Florida’s death sentencing scheme, the United States Supreme Court
said:
In light of the facts that the Sixth Amendment does
not require jury sentencing, that the demands of
fairness and reliability in capital cases do not require
A-18
it, and that neither the nature of, nor the purpose
behind, the death penalty requires jury sentencing, we
cannot conclude that placing responsibility on the
trial judge to impose the sentence in a capital case is
unconstitutional.
Spaziano v. Florida, 468 U.S. 447, 464 (1984). Apprendi/Ring did not
affect that pronouncement because it does not involve the jury’s role
in imposing sentence -- it only requires that the jury find the
defendant death-eligible, which a Florida jury does at the guilt stage
proceedings.
1. The death-eligibility determination is made
at the guilt phase of a capital trial.
Florida law places the death-eligibility determination at the
guilt phase of a capital trial -- that necessarily satisfies the Ring “death
eligibility” component. The jury (under Ring) only has to make the
determination of death eligibility — the judge may make the
remaining findings. Ring speaks only to the finding of death
eligibility; not aggravators, mitigators, or the weighing of them. Ring,
supra (“What today’s decision says is that the jury must find the
existence of the fact that an aggravating factor existed.”) (Scalia, J.,
concurring). When this statement by Justice Scalia is read in the
context of Arizona’s capital sentencing law, “aggravating factor”
means the same thing as “death-eligibility factor,” because Arizona
(unlike Florida) makes the “eligibility for death” determination, as
well as the selection determination, at the penalty phase. The United
States Supreme Court has repeatedly acknowledged that there is no
single, constitutional, scheme that a state must employ in
implementing the death penalty. Lowenfield v. Phelps, 484 U.S. 231,
244 (1988); Spaziano v. Florida, 468 U.S. 447, 464 (1984); Tuilaepa
v. California, 512 U.S. 967, 972 (1994).'* See also, Zant v. Stephens,
'® California law places the eligibility determination at the guilt phase.
Tuilaepa, supra, at 969 ("[T]o 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."); People v. Ochoa, 26 Cal. 4th 398, 453-54, 28 P.3d 78, 110 Cal.
A-19
SS AG alias eR thia aaR R S ah h SEeee
I ee
462 U.S. 862, 874-78 (1983). The constitution is satisfied when a
Florida defendant is convicted of an offense for which death is the
maximum sentence exposure because the conviction determines the
fact of “eligibility for death.”
2. Florida law is different from Arizona’s.
Ring did not eliminate the trial judge from the sentencing
equation or ir any fashion imply that Florida should do so. Under the
Anzona capital sentencing statute, the “statutory maximum” for
practical purposes is life until such time as a judge has found an
aggravating circumstance to be present. An Arizona jury played no
role in “narrowing” the class of defendants eligible for the death
penalty upon conviction of first degree murder. As the Arizona
Supreme Court described Arizona law, the statutory maximum
sentence permitted by the jury’s conviction alone is life. Ring v.
State, 25 P.3d 1139, 1150 (Ariz. 2001).'? Florida law is not like
Arizona’s. Mills v. State, 786 So. 2d 532 (Fla. 2001).
The distinction between a “sentencing factor” (i.e.: “selection
factor,” under Florida’s statutory scheme) and an element is sharply
made in Apprendi, where the Court stated: “One need only look to the
kind, degree, or range of punishment to which the prosecution is
entitled for a given set of facts. Each fact necessary for that
entitlement is an element.” Apprendi v. New Jersey, 530 U.S. at 462.
[emphasis added]. A Florida defendant is eligible for a death sentence
on conviction for capital murder, and a death sentence, under Florida’s
scheme, is not a “sentence enhancement,” nor is it an “element” of the
underlying offense. Almendarez-Torres v. United States, 523 U.S. 224
(1998); McMillan v. Pennsylvania, 477 U.S. 79 (1986). See, Hildwin
Rptr. 2d 324 (2001) (rejecting Apprendi-claim).
'® This Arizona statute is the one that the United States Supreme Court
misinterpreted in Walton. Ring, supra. Because the United States Supreme Court’s
description of Arizona law was incorrect in Walton and Apprendi, Herring’s efforts
to argue that Florida law is “like the Arizona statute in Walton” are, at best,
disingenuous because the Court was mistaken about the operation of Arizona law. Any
comparison of the Walton statute to Florida is based upon a false premise.
-~ A-20
lI rac pac acer cece intan nnn ca
v. Florida, 490 U.S. 638, 640-41 (1989). [emphasis added].”° And, as
Justice Scalia’s concurrence emphasizes, Ring is not about jury
sentencing at all:
Those States that leave the ultimate life-or-death
decision to the judge may continue to do so -- by
requiring a prior jury finding of aggravating factor [in
context, death-eligibility factor] in the sentencing
phase or, more simply, by placing the aggravating-
factor determination (where it logically belongs
anyway) in the guilt phase.”
Ring, supra. Florida’s capital sentencing scheme comports with those
constitutional requirements.
3. Florida provides additional Eighth Amendment
protection at the sentencing phase.
The Florida capital sentencing statue provides for the jury’s
participation.” The statute secures and preserves significant jury
participation in narrowing the class of individuals eligible to be
sentenced to death under both the Sixth and Eighth Amendments. See,
Spaziano v. Florida, 468 U.S. at 464-5. Subsequently, the Court
emphasized that a Florida jury’s role is so vital to the sentencing
process that the jury is a “co-sentencer.” Espinosa v. Florida, 505 U.S.
1079 (1992). However, the Espinosa Court did not retreat from the
premise of Spaziano:
We have often recognized that there are many
constitutionally permissible ways in which States
may choose to allocate capital sentencing authority.
2The Constitution permits the trial judge, acting alone, to impose a capital
sentence.” Harris v. Alabama, 513 U.S. 504, 515 (1995). Like Florida, Alabama law
places the eligibility-for-death determination at the guilt phase. § 13A-5-40, Ala. Stat.
2! Under the statute, the jury must find the existence of one or more
aggravators before reaching the sub-section C recommendation stage. The penalty
phase jury must conduct the sub-section A and B analysis before sub-section C comes
into play.
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eee ee
... We merely hold that, if a weighing State decides
to place capital sentencing authority in two actors
rather than one, neither actor must be permitted to
weigh invalid aggravating circumstances.
Espinosa v. Florida, 505 U.S. at 1082. [emphasis added].
4. The aggravators need not be set out in the
indictment, nor must the sentence stage (selection stage)
jury unanimously recommend a sentence.
Herring’s claims that a death sentence requires juror
unanimity, the charging of the aggravators in the indictment, or special
jury verdicts are unsupported by Ring. These issues are expressly not
addressed in Ring, and in the absence of any United States Supreme
Court ruling to the contrary, there is no need to reconsider the Court’s
well-established rejection of these claims. Sweet v. State, 822 So. 2d
1269 (Fla. 2002) (prior decisions on these issues need not be revisited
“unless and until” the United States Supreme Court recedes from
Proffitt v. Florida, 428 U.S. 242 (1976)); Cox v. State, 819 So. 2d 705,
724 at n. 17 (Fla. 2002) (same), cert. denied, 537 U.S. 1120 (2003).
Herring’s argument that a unanimous jury recommendation is
constitutionally required has been repeatedly rejected by this Court.
See, e.g., Looney v. State, 803 So. 2d 656, 674 (Fla. 2001), cert.
denied, 536 U.S. 966 (2002). See, Way v. State, 760 So. 2d 903, 924
(Fla. 2000), cert. denied, 531 U.S.1155 (2001) (Parente, J.,
concurring)(noting that it is a statute that allows the jury to
recommend the imposition of the death penalty based on a non-
unanimous vote). And, even before Apprendi, this Court consistently
held that a yury may recommend a death sentence on simple majority
vote. Thompson v. State, 648 So. 2d 692, 698 (Fla. 1994) (reaffirming
Brown v. State, 565 So. 2d 304, 308 (Fla. 1990)); Alvord v. State, 322
So. 2d 533 (Fla. 1975)(advisory recommendation need not be
unanimous). After Apprendi, the Court has consistently rejected
claims that Apprendi requires a unanimous jury sentencing
recommendation. Card v. State, 803 So. 2d 613, 628 & n.13 (Fla.
2001), cert. denied, 536 U.S. 963 (2002); Hertz v. State, 803 So. 2d
629, 648 (Fla. 2001), cert. denied, 536 U.S. 963 (2002); Brown v.
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Moore, 800 So.2d 223 (Fla. 2001).
The United States Supreme Court has held that a finding of
guilt does not need to be unanimous.” Cf. Johnson v. Louisiana, 406
U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972). Jurors do
not have to agree on the particular aggravators; are not required to
agree on the particular theory of liability, Schad v. Arizona, 501 U.S.
624, 631 (1991); and may not be required to unanimously find
mitigation. McKoy v. North Carolina, 494 U.S. 433 (1990); Mills v.
Maryland, 486 U.S. 367 (1988). Ring simply affirms the distinction
between “sentencing factors” and “elements” ofan offense which have
long been recognized. See Ring at 597 n.4.; Harris v. United States,
536 U.S. 545 (2002). And, to the extent that Herring claims that Ring
requires that the aggravating circumstances be charged in the
indictment and presented to a grand jury, that argument is based upon
an invalid comparison of Federal cases (with their wholly different
procedural requirements) to Florida’s capital sentencing scheme.”
Ring’s Sixth Amendment jurisprudence is satisfied by the
conviction in Florida and by this Court’s pronouncement that death is
the maximum sentence available under Florida law for the offense of
capital murder. These matters do not change the Eighth Amendment
requirement of channeling of the jury’s discretion, which is done, and
must still be done under Florida law, at the penalty phase of a capital
trial.2* Florida law over-meets the requirements of the Eighth
2 See also, People v. Fairbank, 16 Cal.4th 1223, 1255, 947 P.2d 1321, 69
Cal. Rptr.2d 784 (1997) (unanimity not required as to existence of aggravators, weight
given to them, or appropriateness of a sentence of death).
23 Of course, the Fifth Amendment’s grand jury clause has not been extended
to the States under the Fourteenth Amendment. Ring v. Arizona, supra, at n.4, citing,
Apprendi v. New Jersey, 530 U.S. 466, 477 n.3 (2000); Hurtado v. California, 110
U.S. 516 (1884) (holding that, in capital cases, the States are not required to obtain a
grand jury indictment). This distinction, standing alone, is dispositive of the
indictment claim.
24 The most that can be said for the votes against a death sentence are that
they amount to what can be called a “jury pardon”. Dougan v. State, 595 So. 2d 1, 4
(Fla. 1992). The jury’s vote reflects considered weighing of the aggravating and
mitigating circumstances, not whether any particular juror rejected some or all of the
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Amendment, and satisfies the Sixth Amendment, as well. See Pulley
v. Harris, supra.
Ring does not directly or indirectly preclude a judge from
serving in the role of sentencer. There is no language in Ring which
suggests that, once a defendant has been convicted of a capital
offense, a judge may not hear evidence or make findings in addition
to any findings a jury may have made. And, as Justice Scalia
commented, “those States that leave the ultimate life-or-death decision
to the judge may continue to do so.” Ring, supra.
The United States Supreme Court’s holding in Clemons v.
Mississippi is dispositive:
Any argument that the Constitution requires that
a jury impose the sentence of death or make the
findings prerequisite to imposition of such a
sentence has been soundly rejected by prior
decisions of this Court.
Clemons v. Mississippi, 494 U.S. 738, 745-6 (1990).”°
aggravating circumstances. The only conclusion that can be drawn from the jury’s
sentencing vote is that those jurors thought that life was a more appropriate sentence.
*To the extent that Herring claims that an “uncharged aggravator” was
relied on by the trial judge, that claim is procedurally barred and unworthy of further
discussion. To the extent that Herring challenges various jury instructions, that claim
is time barred and, likewise, deserves no further comment. Finally, the argument that
Ring means that the “striking of the cold, calculated and premeditated aggravator”
requires reversal is spurious. That claim is likewise untimely, because it could have
been raised long ago. Ring created no new “right”, nor did it alter the holding in
Clemons, which clearly permits the procedure followed by this Court in this case.
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CONCLUSION
_ Based upon the arguments and authorities set out herein, the
Respondent respectfully requests that this Court deny the
Apprendi/Ring claim on procedural bar grounds, and, in the
alternative, for lack of merit.
Respectfully submitted,
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
KENNETH S. NUNNELLEY
SENIOR ASSISTANT
ATTORNEY GENERAL
Florida Bar #0998818
444 Seabreeze Blvd. 5th FL
Daytona Beach, FL 32118
(386) 238-4990
Fax # (386) 226-0457
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
above has been furnished by U.S. Mail to: Jon M. Wilson, Foley &
Lardner, 111 N. Orange Ave., Post Office Box 2193, Orlando, Florida
32802-2193, Sherman & Sterling, LLP, 599 Lexington Ave., New
York, New York 10022, Gurney & Handley, PA, 225 East Robinson
St., Suite 450, Orlando, Florida 32807, Attorneys for Petitioner Ted
Herring, on this ____ day of August, 2003.
Of Counsel
CERTIFICATE OF COMPLIANCE
This brief is typed in Courier New 12 point.
KENNETH S. NUNNELLEY
SENIOR ASSISTANT
ATTORNEY GENERAL
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