Opposition Brief — Puiatti v. Buss

Suprame Count, US|

FILEO

MAY 24 201 |

Case No. 10-1302

OFACE OF THe Cun |

THE UNITED STATES SUPREME COURT

CARL PULATTI

Petitioner

v.

EDWIN G. BUSS, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENTS BRIEF IN OPPOSITION

PAMELA JO BONDI

Attorney General

Tallahassee, Florida

CANDANCE M. SABELLA*

Chief Assistant Attorney Genera!

Florida Bar No. 0445071

SCOTT A. BROWNE

Assistant Attorney Genera!

Flomda Bar No. 0802743

OFFICE OF THE ATTORNEY GENERAI

3507 East Frontage Road, Suite 200

Tampa, Florida 33607-7013

813-287-7910

candance.sabella@myfloridalegal.com

*Counse!l of Record

QUESTION PRESENTED FOR REVIEW

[Capital Case]

[As Restated]

Should this Court grant review of a case tried in 1984

in which a trial court exercised its discretion to deny

a penalty phase severance for two defendants who

were properly tried together in the guilt phase, who

jointly committed a capita] murder, and issued a

joint interlocking confession, where resolution of the

joinder claim by the state courts and Eleventh

Circuit Court of Appeals does not conflict with any

other court of appeals and does not present a

significant unsettled question of constitutional law?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW..................1

TABLE OF AUTHORITIESG.................cccccecees cee 1

CITATION TO OPINION BELOW..........0000000 1

PN TRI och wens sess castvyenicaonvnaconususcunes RSA

CONSTITUTIONAL, STATUTORY, AND,

PROCEDURAL PROVISIONS INVOLVED... .........1

STATEMENT OF THE CASE AND FACTS .............2

REASONS FOR DENYING THE WRIT ........... ......19

The question of whether two properly

joined capital defendants found guilty in a

joint trial can be sentenced in a joint

penalty phase is not an issue which has

divided state or federal courts of appeals

and does not implicate a _ serious

constitutional question for this Court's

review. Further, under the particular facts

of this case, the result is not fairly

debatable.

CONCLUSION ............00.00000000.. eee eer: |.

SI De Se hee en vida ieeetunceuad Al1-Al3

Excerpt, Initial Brief of Appellant, Issue I,

Puiatti v. State, Case No. 65,321

TABLE OF AUTHORITIES

Federal Cases

Brecht v. Abrahamson,

507 U.S. 619 (1993)......000.00......

Buchanan v. Kentucky,

483 U.S. 402 (1987)......

Butler v. McKellar.

494 U.S. 407 (1990)............

Calderon v. Coleman,

525 U.S. 141 (1998)...........

Calderon v. Thompson,

523 U-S. 538 (1998).....0000..0..ceee.

Chevron U.S.A., Inc. v. Sheffield,

471 U.S. 1140 (1985)... a. ae

Cruz v. New York,

481 U.S. 186 (1987)........0000....

Gutierrez v. Dretke,

392 F.Supp.2d 802 (W.D. Tex. 2005)....

In re Terrorist Bombings

of U.S. Embassies in East Africa,

552 F.3d 93 (2nd Cir. 2008).........

Johnson v. Dugger,

817 F.2d 726 (11th Cir. 1987)......

.. 44

43

20

.34

Johnson v. Texas,

509 U.S. 350 (1993).. TET 29

Layne & Bowler Corp. v. Western Well Works

261 US. DEF GRE oi. iccvscinncccaneeeeee

Lockett v. Ohio,

438 U.S. 586 (1978) 28, 29 32

Picard v. Connor,

404 U.S. 270 (1971)... 20

Pusatti v. Florida,

481 U.S. 1027 (1987)... 2

Puratti v. McNeil

626 F 3d 1283 (11th Cir. 2010).. ... passim

Rastafari v. Anderson,

117 F.Supp.2d 788 (N.D. Ind. 2000)..... .40

Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70 (1955).

Richardson v. Marsh,

481 U.S. 200 (1987)........... 21, 4]

Rockford Life Insurance Co. v

lilnors Department of Revenue

482 U.S. 182 (1987) ..... oo... 3

Rudolph v. U.S.,

370 U.S. 269 (1962) | 44

Schiro v. Farley,

510 U.S. 222 (1994)

Teague v. Lane,

489 U.S. 288 (1989).....

US. v. Bernard

299 F.3d 467 (5th Cir. 2002).. 24. 26

U.S. v. Catalan-Roman,

376 F.Supp.2d 96 (D.P.R. 2005). 26, 2

US. v. Henderson,

442 F.Supp.2d 159 (S.D.N.Y. 20086)..

US. v. Johnston,

268 U.S. 220 (1925)...

US. v. Rivera,

363 F.Supp.2d 814 (E.D. Va. 2005) » A

US. v. Tipton, |

90 F.3d 861 (4th Circ. 1996) 24 25, 26

Zatiro v. United States,

506 U.S. 534 (1993).........0..... 23, 2¢

State Cases

Com. v. Romero,

595 Pa. 275, 938 A.2d 362 (Pa. 2007) 24

Maxwell v. Wainwright,

490 So. 2d 927 (Fla. 1986) ... 1, 23

McCray v. State,

416 So. 2d 804 (Fia. 1982)

People v. Burney,

47 Cal]. 4th 203, 212 P.3d 639 (Cal. 2009)

VY

People v. Hardy,

2 Cal. 4th 86, 825 P.2d 781 (Cal. 1992).. 4]

People v. Stanley,

39 Cal. 4th 913, 140 P.3d 736 (Cal. 2006)... 4]

Puiatts v. Dugger,

589 So. 2d 231 (Fla. 1991) .

Puiatti v. State,

495 So. 2d 128 (Fla. 1986) .. 2, 6,

—"

~~

—

Puiatti v. State,

521 So. 2d 1106 (Fla. 1987),

cert. denied, 488 U.S. 871 (1988) .....

Puiatti v. State,

939 So. 2d 1060 (Fla. 2006) .

Other Authorities

28 U.S C. § 1254(1) |

Sup. Ct. R. 10

CITATION TO OPINION BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit is reported at Puratt: v.

McNeil, 626 F.3d 1283 (11th Cir. 2010).

JURISDICTION

This Court has jurisdiction pursuant to Title 28,

United States Code, Section 1254(1) to review the

decision of the Eleventh Circuit Court of Appeals.

However, Respondent submits that no question

contained in the petition is worthy of thig Court’s

consideration.

CONSTITUTIONAL, STATUTORY, AND,

PROCEDURAL PROVISIONS INVOLVED

The Respondent generally agrees with Petitioner's

statement of relevant constitutional! provisions.

STATEMENT OF THE CASE AND FACTS

The State cannot accept the Petitioner's

statement of the case as it is primarily composed of

argument.

A. State Court Procedural History

Petitioner, Carl Puiatti, along with his co-

perpetrator Robert Dewey Glock, was charged by

indictment with first degree murder, kidnapping and

robbery. Trial by jury resulted in guilty verdicts and

death recommendations by a vote of 11 to 1. The

trial judge followed the recommendation and

sentenced Puiatti to death.

Puiatti’s convictions and sentences were affirmed

by the Florida Supreme Court in Puiatt: v. State, 495

So. 2d 128 (Fla. 1986). Pwiatti sought certiorari

review and this Court vacated and remanded for

reconsideration in light of Cruz v. New York, 481

US. 186, 107 S. Ct. 1714 (1987). Puiatt: v. Florida,

481 U.S. 1027, 107 S. Ct. 1950 (1987). Following

briefs and oral argument, the Court affirmed. Pusatt:

v. State, 521 So. 2d 1106 (Fla. 1987), cert. denied, 488

U.S. 871, 109 S. Ct. 184 (1988).

Puiatti pursued post-conviction relief but his

claims were summarily denied by the trial court. He

pursued an appeal to the Florida Supreme Court and

also filed a state petition for writ of habeas corpus.

The court affirmed the denial of the 3.850 motion and

also demied habeas rehef. Puwatt; v. Dugger, 589 So.

2d 231 (Fla. 1991).

Puiatti, through counsel, filed a series of

successive motions for post-conviction relief which

were summarily denied. The last successive motion

was appealed to the Florida Supreme Court which

affirmed the denial of relhef. Puwratt: v. State, 939 So.

2d 1060 (Fla. 2006).

B. Federal Court Procedural History

Puiatti filed his petition for writ of habeas corpus

in the Middle District of Flomda in April of 1992.

The Court administratively closed the case in June of

1995 and reopened the case in March of 1998. The

Court granted Petitioner’s motion to hold proceedings

in abeyance pending disposition of state court

proceedings in July of 2002. On May 15, 2008, the

District Court reopened the case, dismissing the

original petition without prejudice to Puratti filing an

amended petition. On August 14, 2009, the District

Court entered an Order granting Petitioner's

Amended Petition for Writ of Habeas Corpus,

overturning his sentence for the first degree murder

of Sharilyn Ritchie. The Court denied the State's

motion to alter or amend on October 15, 2009.

The State appealed and the Eleventh Circuit

Court of Appeals reversed the district court in an

opinion issued on November 29, 2010. Puwisttr v

AfeNe1l, 626 F.3d 1283, 1317-1318 (11th Cir. 2010)

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Cars window came adjacent to the

woman, Puiatti shot her twice. The

appellants drove away, but, when they

Saw she was still standing, they drove

by the victim again and Glock shot her

When the woman did not fall, the

appellants made a third pass with the

automobile, Glock shot her another

time, and the woman collapsed

Four days later, a New Jersey state

trooper stopped the victim’s vehicle

because its license plate was improperly

displayed. Puiatt: and Glock occupied

the automobile. When neither appellant

could present a valid driver's Lense,

the officer requested the car's

registration. As Puiatti opened the glove

box, the trooper saw a handgun. The

officer seized that handgun, searched

the vehicle, and uncovered another

handgun. He then arrested both men for

possession of handguns without permits

The police later identified the handgun

from the glove box as the murder

weapon

The next day Puiatti and Glock

individually confessed to the

kidnapping, robbery, and killing. These

initial confessions varied only to the

extent that each blamed the other as

instigator of the killing and each offered

a differing sequence of who fired the

shots at the victim. Each confessor

admitted he had fired shots at the

victim. Three days later, on August 24

Puiatti and Glock gave a joint statement

concerning their involvement in the

murder. In this joint confession, the

appellants resolved the inconsistencies

In their prior statements: they agreed

that Glock initially suggested shooting

the victim and that Puiatti fired the

first shots and Glock fired the final

The Eleventh Circuit's opinion, quoted the joint

confession, in which Puiatt: and Glock recounted

|

their roles [quoted in part]

We walked to a Shop and Go Store near

Bradenton and called a taxicab to take

us to the mall. We got to the mall about

§:00 o'clock that morning, and, uh, hung

around until it opened. And that day we

watched a couple of movies in the mal]

and we were kind of looking around in

the parking lot for a customer to come in

to try to get their car. We had no luck

' ;

tnat aay

That night, later that night, we tned

to hitchhike out of town and tried for a

couple of hours, and it was about 1:00

o'clock in the morning and we had no

luck. So there was a truck parked over

by the mall and it was open, so we went

in and slept for a few hours until that

morning

Okay. The following morning, which

was Tuesday, the 16th, we went and got

something to eat. And we were getting

very low on money, so we waited around

the mall parking lot until it opened

again. And I'm not sure of the exact

time.

Do you remember the time when she

came?

Mr. Glock: It was approximately

10:20-10:30.

Mr. Puratti: About 10:30 that

morning a woman pulled into the mall

parking lot in ... an orange 1977 Toyota

SR-5 Corolla. That's what it was,

Corolla.

At that time when she pulled in she

had opened the door and started to get

out of the car, and Robert had a

handbag with a .38 1n it and went up to

her, put the gun on her, and she started

to scream. And he told her to get in the

backseat

At that time I got in the car and

started—and got behind the driver's

wheel and started to pull out of the

]

mal!

At that time Robert went through

her purse and found fifty dollars and

also found that she had a, uh, bank

account. So she’s offering to go to her

bank and withdraw some money for us,

and we—so we went to the Palmetto

Bank on Palmetto Avenue and withdrew

a hundred dollars in four twenties and

two tens. She wrote out a check, and we

went through the drive-through and

withdrew it.

Pusatti said that he drove the car

northbound until he found a dirt road

through orange groves near Dade City,

Florida. Puiatt: drove the car through

the dirt road until he saw a street, then

turned around and stopped the car

about halfway down the dirt road.

Puiatti said they let Ritchie out of the

car and, at her request, gave Ritchie her

purse and her husband's basebal! glove

They took her wedding band and

diamond ring.

Puiatti and Glock jointly described

how Glock suggested shooting Ritchie,

how Puiatti fired the first two shots, and

then Glock fired the rest, as follows:

By Detective Stahl: Question: Then

what happened when you let her out of

the car?

Mr. Puiatti: Okay. We left her and

started to take off. And as we were

taking off, we started talking back and

forth, and Robert said to me that he

thought that we should shoot der. And

after going back and forth a little bit, I

agreed, and turned the car around.

Then we drove up next to her and

acted like we were looking for directions,

and I shot her in the right—right by the

right shoulder, and drove off.

When I was driving off, Robert

noticed that she was still standing.

Mr. Glock: There were two shots

fired at her, and then—interrupted—

Mr. Puratti: You tell it

Mr Glock: When we frst turned

around and came back toward her on

the first time, he shot the first time and

Ait Aer in the shoulder, the right

shoulder, and then fired a second time. I

don't know sf the second time he fut her

or that was when he missed her and fit

the tree or whatever.

Mfr. Puratts- Yeah.

Mr. Glock: J don’t know if he missed

the second shot or not.

Mr. Puatti: Yeah. Jt was because—

interrupted—

By Detective Stahl’ Question.’ You

agree with that, Carl?

Mr. Puratti: Yeah.

Question: Go ahead, Bobby.

Mr. Glock: Then we kept on driving,

and I noticed that she was_§ still

standing. Carl turned around and

handed me the gun at that time and

drove back by her, and I fired a shot. No,

I fired two shots at that time.

Mr. Puiatti: Yeah.

10

Mr. Glock: I fired two shots. Uh, then

we kept on driving back by, turned

around again, (pausing).

Mr. Puiatti: Went back by again,

stopped, (pausing).

Mr. Glock: Yeah. Stopped and turned

around and headed back toward her.

Mr. Puiatti: (Affirmative nod.)

Detective Wiggins: She was _§ still

standing?

Mr. Glock: I only fired one shot at

that time. Only fired two shots the

whole time.

Mr. Puiatt:: Three.

By Detective Stahl: Question: I just

want to interrupt you. Car/ at the time

when you said you shot her once in the

shoulder, then you shot 1n the chest;

didn’t you?

Mr. Pusatts: Yes, I shot Aer twice.

Mr. Glock: /t was the third shot that

you missed.

Mr. Puiatti: So those first two, yeah.

11

Question: So you sho

Carl

Mr. Puiatti< Yes.

Question: Once tn the shoulder, you

said (interrupted).

Mr. Purattr- And once in the chest

area.

Question: Chest. And how many

times—how many shots did you—

(interrupted.)

Mr. Glock: Two

Question: So how many shots in total

did you fire?

Mr. Glock: Me?

Question: Yeah.

Mr. Glock: Two

Question: And—(pausing)

Mr. Puratt:- Altogether, five. On:

missed.

Question: One missed. So that was a

total of five shots?

Mr. Glock: The sixth shot got hung

up in the gun and We didn’t worry about

it.

Question: Okay. And how many

times did you go back now?

Mr. Glock: We passed by her once

twice—three times.

Question: Three times you went back

and on the third time what happened?

Mr. Glock: That’s when I fired my

second and final shot, and that’s when

she—as we were driving away after the

last shot, she fell over.

Mr. Puiatti: She walked about ten

yards and then fell over

(Emphasis added).

Puratti v. McNei/, 626 F.3d at 1288-1290.

The jury recommended death by 11-1 and the trial

court followed the jury's recommendation. The court

found three aggravating circumstances, that the

murder was committed to avoid arrest, the murder

was committed for pecuniary gain, and that the

murder was committed in a cold, calculated, and

premeditated manner without any pretense of moral

or legal justification. Pusatti v. State, 495 So. 2d at

130.

i) Relevant State Court Legal Rulings

Severance

On his direct appeal to the Florida Supreme Court

Petitioner asserted that the trial court abused its

discretion in failing to sever his trial and penalty

phase from his co-defendant, Glock. In rejecting this

claim with regard to the penalty phase severance, the

Florida Supreme Court stated:

Puiatti’s Penalty Phase

Puiatti challenges his sentence of

death by asserting five reversible errors

during his penalty proceeding. First, he

claims that the trial court’s demal of a

severance in the_ penalty’ phase

preyudiced him, arguing that Glock

presented antagonistic arguments on

the aggravating circumstance of

substantial domination and that the

jury was exposed to _ improper

instructions and prosecutorial argument

relating to the non-existence of the

mitigating factor of no significant prior

criminal history. We hold that a

severance was not required in the

penalty phase of the trial. As to the

alleged conflict concerning which

defendant dominated the other, our

decision in AfcCray disposes of this

contention. In AfcCray we stated:

14

[T]he fact that the defendant

might have a better chance of

acquittal or a strategic advantage

if tried separately does not

establish the right to a severance.

Nor is hostility among

defendants, or an attempt by one

defendant to escape punishment

by throwing the blame on a

codefendant, a sufficient reason,

by itself, to require severance. If

the defendants engage in a

swearing match as to who did

what, the jury should resolve the

conflicts and determine the truth

of the matter.

416 So. 2d at 806 (citations omitted).

See also Dean v. State, 478 So. 2d 38

(Fla. 1985). Further, we find the mere

fact that only one of two codefendants

has a significant prior criminal history

does not require, in and of itself, a

severance in the trial’s penalty phase.

The critical question is whether the jury

was able to consider evidence presented

by each defendant dumng the penalty

phase and apply the law without being

unduly confused or prejudiced. We find

that, under the circumstances of this

case, the jury could properly apply the

facts to the law without confusion or

prejudice.

Puiatti v. State, 495 So. 2d at 131.

15

iil) Relevant Federal] Court Rulings

The District Court, issued an opinion, finding that

although Puiatti and Glock were properly jointed for

trial in the guilt phase, the state trial court erred in

failing to grant a penalty phase severance and

granted habeas relief. The 11th Circuit Court of

Appeals reversed the district court, concluding that

neither the 8th Amendment in general nor the

particular facts of this case required severance. The

court stated in part:

The bottom line is Puiatti's prejudice

claim essentially rests upon an implicit

contention that a separate penalty trial

is required whenever a co-defendant’s

presence might reduce a defendant's

chance to avoid a death sentence. We

have found nothing in severance law or

Eighth Amendment jurisprudence to

support this position. See Zafiro, 506

U.S. at 540, 113 S.Ct. at 938 (stating

that “it is well settled that defendants

are not entitled to severance merely

because they may have a better chance

of acquittal in separate trials”). Puiatt:

has failed to show any specific way that

he was prejudiced by being tried jointly

with Glock at the penalty phase.

Indeed, the specific facts of this case

made a joint penalty phase particularly

appropriate. Puiatti and Glock acted

together in planning and effecting the

16

abduction, robbery, and murder of

Ritchie. Both Puiatt: and Glock fired

shots at Ritchie. It was Puiatti who was

the first to fire shots at and strike the

helpless victim from close range. Puiatti

and Glock issued a joint interlocking

confession that agreed on how many

shots were fired, who fired each of them,

and when. Puiatti and Glock kept

driving by and shooting Ritchie until

they were sure she would die. As the

state trial court aptly noted, this case is

a “classic example of why joint

defendants ought to be [tried] together

in order to get justice.”

In fact, Puiatti’a jornt trial with

Glock avoided the inequity” of

inconsistent verdicts and one capital

defendant going second with the

benefits of previewing the State's

evidence and arguments. See

Richardson, 481 U.S. at 210, 107 S.Ct.

at 1708-09 (stating, “Joint = trials

generally serve the interests of justice

by avoiding the scandal and inequity of

inconsistent verdicts” and by not

“randomly favoring the last-tried

defendants who have the advantage of

knowing the prosecution's case

beforehand”). The Lockett-Eddings-

Penry—Abdul—Kabir principle that the

sentencer must be allowed to consider

and give effect to “all relevant

17

mitigating evidence,” see Eddings, 455

U.S. at 117, 102 S.Ct. at 878, 1s guite

compatible with a joint trial. To the

extent any arguable tension may exist

between joint tnals and individualized

sentencing, it did not occur here. See

Bernard, 299 F.3d at 475 (noting

potential tension between joinder and a

defendant's right to an individualized

capital sentencing decision, but

affirming defendant's death sentence in

a joint trial).

If any two capital co-defendants

could be properly joined in a penalty

phase, it was Puiatt: and Glock. Punatt:

has not shown that his severance denial

violated any constitutional right.

Puiatti, 626 F.3d at 1317-1318

REASONS FOR DENYING THE WRIT

The question of whether two properly joined

capital defendants found guilty in a joint trial

can be sentenced in a joint penalty phase is not

an issue which has divided state or federal

courts of appeals and does not implicate a

serious constitutional question for this Court’s

review. Further, under the particular facts of

this case, the result is not fairly debatable.

Petitioner argues that this Court should review

the Eleventh Circuit's decision denying his wnt of

habeas corpus on the basis of penalty phase

severance. There 1s no conflict between the Eleventh

Circuit and any other court of appeals. Moreover, the

underlying state court decision is a presumptively

valid fact based decision which does not present any

conflict with this Court’s precedent. Accordingly, the

petition should be denied. See, Rule 10, Supreme

Court Rules of Practice and Procedure (Certiorar:

review appropnate for cases which decide an

“important question of federal law” which represent a

conflict with relevant decisions of this Court, between

United States courts of appeals, among state courts

of last resort, or, present “a significant unsettled

question” for this Court)

A. This Claim Was Not Properly Exhausted In State

Court

The Eleventh Circuit assumed “for purposes of

this opimon only that Puiatt: exhausted this claim

because it lacks merit in any event.” FPuratts, 626

F.3d at 1308. The Respondent does not concede that

this claim was properly exhausted in state court and

argued exhaustion and procedural bar in its habeas

response in the district court and on appeal to the

Eleventh Circuit. Puiatti’s direct appeal argument to

the Florida Supreme Court did not mention, much

less assert an Eighth Amendment fair and

individualized sentencing claim. Nor, for that

matter, did Puiatti’s brief on direct appeal mention

most of the supporting allegations of prejudice

{opening argument and presentation of witnesses,

Puiatti’s failure to testify, and the Prosecutor's

closing and jury instructions] argued here as grounds

for habeas relief. The claim raised in federal court

and for which Puiatti seeks review in this Court

bears )ittle resemblance to the claim presented in

State court. (Al1-Al3: Excerpt, Pwaatti’s Duirect

Appeal Brief, Issue I, pgs. 9°18). See, Picard v.

Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 522 (1971)

(‘We emphasize that the federal claim must be fairly

presented to the state courts.”).

B. A_ Trial Judge Has Considerable Discretion To

Rule On Whether Severance Is Necessary And

The Fact Dependent Exercise Of Such Discretion

Does Not Offend Any Constitutional Principle

And Has Not Engendered Conflict Among Federal

Or State Appellate Courts

There is no binding, or, for that matter, even

persuasive legal precedent existing now, much less

when this case became fina) in 1986, which suggests

the state trial court abused its broad discretion in

refusing to sever Puiatti’s penalty phase from that of

his co-defendant Bobby Glock. Indeed, joint trials

and penalty phases are not disfavored by state law,

Or, more importantly, for this Court, federal

constitutional law. As noted by this Court in

Richardson v. Marsh, 481 U.S. 200, 209-210, 107 S.

Ct. 1702, 1708-1709 (1987): “...It would impair both

the efficiency and the fairness of the criminal justice

system to require, in all these cases of joint crimes

where incrmminating statements’ exist, that

prosecutors bring separate proceedings, presenting

the same evidence again and again, requiring victims

and witnesses to repeat the inconvenience (and

sometimes trauma) of testifying, and randomly

favoring the last-tried defendants who have the

advantage of knowing the prosecution’s§ case

beforehand.” See, Maxwell v. Wainwright, 490 So. 2d

927, 933 (Fla. 1986) (“Where co-defendants are tried

together on a capital charge, there being no ground

for a severance of the guilt-or-innocence phase of the

trial, it is proper for the court to proceed with a joint

sentencing trial so that the same jury that heard all

the guilt-phase evidence can consider and weigh the

relative roles and culpability of the offenders.”).

Addressing an allegation of Constitutional error

surrounding the joint trial of a capital and non-

capital defendant, this Court again noted the

preference for joint trials:

0) In joint trials, the jury obtains a more

complete view of all the acts underlying

the charges than would be possible in

separate tnals. From such a perspective,

it may be able to arrive more reliably at

its conclustons regarding the gurlt or

innocence of a particular defendant and

to assign fairly the respective

responsibilities of each defendant in the

sentencing. See ABA Standards for

Criminal Justice Standard 13-2.2 (2d ed.

1980). This jury. perspective is

particularly significant where, as here,

all the crimes charged against the joined

defendants arise out of one chain of

events, where there 1s a single victim,

and where, in fact, the defendants are

indicted on several of the same counts.

Buchanan v. Kentucky, 483 U.S. 402, 418, 107 S. Ct.

2906, 2915 (1987) (emphasis added).

The defendants committed the murder, robbery

and kidnapping of Mrs. Ritchie together, issued a

joint confession, and their roles in the murder were

not in dispute. The defendants were close in age, and

22

there was no vast disparity in either the quality or

quantity of mitigating evidence. There was simply

no compelling reason for the trial court to order a

separate penalty phase for each defendant.

Petitioner acknowledges that federal law and the

overwhelming majority of states provide for joint

sentencing in capital cases.! (Cert. Pet. at 17).

Nonetheless, Petitioner attempts to manufacture

some type of conflict or “tension” in the law based

upon two courts of appeals cases he suggests are

inconsistent with the Eleventh Circuit's opinion in

this case. These cases, as explained below, do not

suggest, much Jess establish a conflict among courts

of appeals.

Petitioner cites no case in which a court of appeals

has reversed a state court on the question of penalty

phase severance. The claim Puiatti presents for

review simply has not been the subject of controversy

among federal or state courts. Rarely have appellate

courts reversed trial judges for refusal to sever a

guilt or penalty phase for jointly tned defendants.

See, e g., Zafiro v. United States, 506 U.S. 534, 538-

39, 113 S. Ct. 933 (1993) (“Rule 14 does not require

severance even if prejudice is shown: rather, it leaves

the tailoring of the relief to be granted, if any, to the

district court's sound discretion.”); Jn re Terrorist

Bombings of U.S. Embassies in East Africa, 552 F.3d

93, 130-135 (2nd Cir. 2008) (finding no abuse of

' Under Florida law, the jury that heard the guilt phase of the

capital case also recommends the appropnate penalty Afscwel/

v. Wainwright, 490 So. 2d at 933: McCray v. State, 416 So. 2d

804 (Fla. 1982).

23

discretion from District Court’s denial of El-Hage’s

motion to sever his trial from the trial of his death-

eligible co-defendants, finding the record

demonstrates a lack of prejudice “let alone prejudice

sufficient to trigger the granting of a new trial, due to

his joint trial with these co-defendants.”); People v.

Burney, 47 Cal. 4th 203, 256, 212 P.3d 639, 683, 97

Cal. Rptr.3d 348, 400-401 (Cal. 2009) (rejecting

penalty phase severance claim where defendant

argued he was prejudiced by “joinder of the tria! of

the three defendants, and the admission of the

codefendants’ statements, permitted the prosecutor

to refer repeatedly to defendant's primary role in the

murder.”); U.S. v. Tipton, 90 F.3d 861, 892-893 (4th

Circ. 1996) (while noting “the threat posed to

individualized” sentencing from a joint penalty phase

the court found no abuse of discretion on severance

based upon. repeated instructions to give

“individualized consideration” to each defendant);

Com. v. Romero, 595 Pa. 275, 307, 938 A.2d 362, 381

(Pa. 2007) (no abuse of discretion shown in denying

penalty phase severance); U.S. v. Aivera, 363

F.Supp.2d 814, 822-825 (E.D. Va. 2005) (disposing of

arguments against severance and the alleged threat

to “individuahzed” sentencing noting that the “jury

is being asked to make a judgment about group

conduct and a joint trial will allow them to fairly

judge the appropriate leve! of responsibility of each

defendant.").

Puiatti cites U.S. v. Tipton, 90 F.3d 861, 892 (4th

Cir. 1996) and U.S. v. Bernard, 299 F.3d 467, 475

(5th Cir. 2002) in his effort to find conflict or

“tension” in the law. However, even a cursory review

24

of the fourth and fifth circuit opinions in those cases

reveal that they are consistent with the Eleventh

Circuit's decision in Pujatti’s case. In each case, the

court of appeals upheld joint capital penalty phase

proceedings.

In Zipton, the Court affirmed the trial court's

exercise of discretion in refusing to sever the penalty

phases for three defendants. The court concluded, in

part:

Reviewing under that standard, we

cannot find abuse of discretion here. The

concerns raised by appellants are

legitimate ones. But there are

countervailing considerations that

properly may be weighed in the

discretionary balance. Because the

relevant statutory provision, §

848(1)(1)(A), requires that, except in

situations not present here, the penalty

hearing shall be conducted before the

same jury that determined guilt,

severance here would have required

three separate, largely repetitive

penalty hearings before this jury. The

same considerations of efficiency and

fairness to the Government (and

possibly the accused as well) that

militate in favor of joint trials of jointly:

charged defendants in the guilt phase,

see Lockhart v. McCree, 476 U.S. 162,

181, 106 S.Ct. 1758, 1769, 90 L.Ed.2d

137 (1986); Richardson v. Marsh, 481

25

U.S. 200, 210, 107 S.Ct. 1702, 1708-09,

95 L.Ed.2d 176 (1987), must remain

generally in play at the penalty phase.

The district court was therefore entitled

to weigh those considerations in the

balance.

Tipton, 90 F.3d at 892.

Similarly, the Fourth Circuit found no clear error

in the failure to sever a capital defendant's penalty

phase in U.S. v. Bernard, 299 F.3d 467, 475 (5th Cir.

2002). The court noted that severance hes in the

trial court’s discretion and citing Zafiro v. United

States, [cite omitted) held that the “pro-Bernard

mitigating evidence of which Vialva complains was

not sufficiently ‘mutually antagonistic’ or

irreconcilable’ to him to suggest, much less compel,

severance at the penalty phase.” Bernard, 299 F 3d

at 475.

The very few cases supporting severance

represent nothing more than fact specific exercises of

judicia] discretion. Upon review, such cases do not

conflict with the Eleventh Circuit’s opinion in this

case.

For example, in U.S. v. Catalan-Roman, 376

F.Supp 2d 96 (D.P.R. 2005), cited by Petitioner, the

district court exercised its discretion in ordering a

sequential penalty phase before the same jury for two

capital defendants who had been convicted of murder

in a joint trial. The district court in Cata/an-Roman

noted that the prosecution's theory of responsibility

26

between the two defendants favored “one defendant

more than the other” and the “affected defendant”

claimed he would “bring information to cast doubt as

to the Government's version of facts” to show “how

more culpable his co-defendant was.” Moreover, this

factor in favor of severance was coupled with a

perceived vast disparity in quantity and quality of

mitigation evidence between the two defendants:

Lastly, during the ex parte in camera

hearing, Mr. West [Medina’s counsel]

stressed the high risk dilution of

Medina’s mitigating information in light

of Catalan's very powerful mitigation

regarding his good behavior before and

after he was arrested. Because of

Medina’s lack of commensurate

mitigation, Mr. West claimed that

continuing with a joint penalty trial

would overshadow Medina’s right to an

individualized determination because

the jury would be unable to forgo

comparing the two defendants.

Catalan-Roman, 376 F.Supp.2d at 106.

Catalan-Roman is easily distinguished from the

instant case. First, Cata/Jan-Roman was a federal

district court exercising its own discretion on a

motion to sever capital co-defendants, not a district

court resolving a habeas claim for a presumptively

valid state court sentence for which a federal court

must accord deference. Moreover, the court in

Catalan-Roman was faced with a much different

factual scenario, where the Government was pointing

27

the finger at one defendant as the shooter and the

individual most responsible for the capital murder.

Here, there 1s a joint confession, in which Petitioner

did most of the talking, which specified each

defendant’s role and established equal culpability in

the victim’s murder. Further, sub judice, there was

not a vast or even appreciable difference in the

quantity or quality of the mitigating evidence

presented by the defendants as in Cata/lan-Roman.

Finally, despite the concerns in Cata/an-Roman, the

court did not order a separate jury to hear each case,

rather it ordered a sequential proceeding, thereby

allowing the guilt phase jury to determine the

appropriate sentence for each defendant.?

Puiatti argues that joint sentencing proceedings

in this case violate the fair and individualized

sentencing this Court held was necessary for a

capital defendant in Lockett v. Odo, 438 U.S. 586, 98

S. Ct. 2954 (1978). Puiatti appears to be asking this

Court to announce a new rule based upon a novel and

in the Respondent's view, an unnatural expansion of

Lockett. Extending Lockett to preclude or inhibit

joint sentencing would divest state and federal trial

judges of discretion on the severance issue in capital

cases. Critically, Puratt: has failed to establish that

a single court of appeals or state court has

interpreted this Court's decision in Lockett to

preclude joint sentencing for two defendants who

2In US. v. Henderson, 442 F.Supp.2d 159(SD.N Y 2006), the

district court denied the motion to empanel a separate penalty

phase jury for each defendant and exercised its discretion to

order sequential sentencing, a remedy advocated by the

Government.

28

were properly tried together in the guilt phase.

Thus, there is no conflict in the law worthy of this

Court's consideration in this case.

The Eleventh Circuit properly recognized in

affirming the rulings of the state courts below, that

Lockett did not address joint sentencing of capital

defendants. The Eleventh Circuit did not, as Puiatti

repeatedly suggests, assert that a capital defendant

is not entitled to a fair or individualized sentencing.

The court did, however, recognize that Lockett does

no more than prevent a court from limiting the

mitigating evidence a defendant may present or by

its instructions impermissibly preclude a jury from

considering a defendant’s mitigating evidence.* The

Eleventh Circuit did not misinterpret Lockett. In

Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658

(1993), this Court emphasized that Lockett and its

progeny “stand only for the proposition that a State

may not cut off in an absolute manner the

presentation of mitigating evidence, either by statute

or judicial instruction, or by limiting the inquiries to

which it 18 relevant so severely that the evidence

could never be part of the sentencing decision at all.”

Johnson, 509 U.S. at 368.

® As etated by the Eleventh Circwt: * .. although Puiatti

attempts to connect and intertwine severance with hie

constitutional right to an _ individuahzed sentencing

determination, we can locate, and Pwatwu hae cited, no Supreme

Court decison doing so. Lockett and its progeny do not address

joint penalty phases or say that the presence of a co-defendant

at a capital defendant's penalty phase tnal hae any Eighth

Amendment implications whatsoever. None of the Lockett line

of cases relates to severance or helpa Puiatti's claim at all.”

Puiatts, 626 F.3d at 1314-1315.

29

The Eleventh Circuit specifically found that

Puisatti was not limited in his presentation of

mitigating evidence, nor, was the jury limited by

instructions from considering any’ mitigating

evidence submitted by Puiatti during his joint

penalty phase with Glock. The Eleventh Circuit

stated:

First, Puiatti was not prevented from

presenting any mitigating evidence.

Puiatti has not proffered a single piece

of evidence he was unable to put before

the jury or judge for consideration by

virtue of the joint penalty phase.

Second, no state statute nor judicial

interpretation nor jury instruction

restricted the jury or judge from

considering, or acting upon, Pwatti’s

mitigation evidence. Rather, the Florida

trial court appropriately instructed the

jury during the penalty phase to

carefully weigh and consider “all of” the

evidence presented, stating, “Before you

ballot you should carefully weigh, sift

and consider the evidence, and al) of it,

realizing that human life is at stake,

and you should bring to bear your best

judgment in reaching your advisory

sentence.”

30

The state trial court also instructed

the jury about the potential sentences

for Glock and Puiatti separately and

individually. FN29 [omitted] “Jurors

routinely serve as impartial factfinders

in cases that involve sensitive, even life-

and-death matters” and “[iln those

cases, a8 in all cases, juries are

presumed to follow the court's

instructions.” Hammond v. Hall, 586

F.3d 1289, 1334 (11th Cir. 2009)

(quoting CSX Transp., Inc. v. Hensley, --

-- U.S. ----, 129 S.Ct. 2139, 2141, 173

L.Ed.2d 1184 (2009)). Courts presume

that the jury heard, understood, and

followed the court's © instructions.

Richardson, 481 U.S. at 208-11, 107

S.Ct. at 1708-09.

Puiatts, 626 F.3d at 1314-1315.

Assuming for a moment this Court were to

entertain Petitioner's invitation to interpret or

extend Lockett to ininbit or preclude joint penalty

phases in capital cases, announcing such a rule and

applying it to a case which has been final for more

than twenty years would violate 7eague v. Lane, 489

U S. 288, 311, 109 S. Ct. 1060, 1075 (1989). Teague

held that constitutional claims may not be raised on

collateral review if they are based upon a new rule

that was announced after the conviction and

sentence became final. 489 U.S. at 311. This Court

has explained that Jeague validates reasonable good

faith interpretations of existing precedent. Butler v.

31

McKellar, 494 U.S. 407, 110 S. Ct. 1212 (1990).

Precedent existing at the time of trial did not

suggest, much less require a separate penalty phase

for defendants who were properly joined for trial in

the guilt phase. See, Gutierrez v. Dretke, 392

F.Supp.2d 802, 829 (W.D. Tex. 2005) (“Insofar as

petitioner argues the Enghth Amendment compels a

state trial court to hold a separate trial on

punishment for every capital murder defendant

found guilty with other defendants of participating in

the same capital murder, respondent correctly points

out that this Court is foreclosed from recogmzing

such a new rule in this habeas corpus proceeding by

the non‘retroactivity doctrine of Teague v. Lane, 489

U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334

(1989).”).

The Eleventh Circuit in this case _ properly

credited the assessment of the state trial court below

that severance was not required in order for Puiatti

and Glock to receive a fair penalty phase. The

exercise of such judicial discretion, under the

particular facts of this case, does not offend any

‘ The State did not waive a Teague bar. It was timely presented

in a 60(b) motion when it appeared the district court was

essentially interpreting or extending Lockett to preclude joint

capital penalty phase proceedings. The State argued a 7eague

bar in its llth Circuat imtial brief The Eleventh Circuit,

however, did not address the Teague bar. The State did not

below and does not now waive rehance upon Teague. See,

Schiro v. Farley,510 US 222, 228-229, 114 S. Ct 783, 788-789

(1994) (noting that the State may generally argue any legal

theory to support the lower court judgment but declining to

apply the Teague bar when it waa argued for the first tame on

the merits where the State failed to raise this bar in its

response to the certiorari petition)

32

constitutional principle. Petitioner has not cited any

conflicting authority from this Court, other courts of

appeals, or state courts to support certiorari review.

See fRockford Life Insurance Co. v._ Illinois

Departmeat of Revenue, 482 U.S. 182, 184, n. 3

(1987) (noting that cases which have not divided the

federal) or state courts or presented important,

unsettled questions of federal law do not usually

merit certiorari review). Accordingly, certiorari

should be dented.

C. The Eleventh Circujt’s Decision On Severance Is

Supported by The Record, Je Wholly Dependent

On The Particular Facts Of This Case, And Js Of

Significance To No One Other Than The Parties

To This Litigation,

Petitioner is asking this Court to review and

reverse the Eleventh Circuit decision affirming the

state trial judge's exercise of discretion [affirmed by

the Florida Supreme Court] in denying a penalty

phase severance for Glock and Puiatti. As an

exercise of judicial discretion by the state trial judge

on habeas review, this decision is wholly dependent

on the facts of the case and of significance to no one

other than the parties to this Ltigation. See, US. v.

Johnston, 268 U.S. 220, 227, 45 S. Ct. 496, 497 (1925)

(“We do not grant certiorari to review evidence and

discuss specific facts.”). Consequently, this Court

should decline to exercise certiorari jurisdiction over

this case. See, Chevron U.S.A., Inc. v. Sheffield, 471

U.S. 1140, 105 S. Ct. 2686 (1985); Rice v. Sioux City

Memorial Park Cemetery, 349 U.S. 70, 75 S. Ct. 614

(1955); Layne & Bowler Corp. v. Western Well

33

Works, 261 U.S. 387, 43 S. Ct. 422 (1923). Moreover.

a review of the Eleventh Circuit’s detailed opinion

accompanying the denial of this claim establishes

correct application of this Court's precedent.

An abuse of the trial court's discretion cannot be

found on the basis of this record, much less a serious

constitutional error requiring grant of the writ. See,

Johnson v. Dugpyer, 817 F.2d 726, 728 (ilth Cir.

1987) (Regardless of the state law governing

severance in state trials, a federal court will not

grant relief to a habeas petitioner on this issue

unless he can establish that the failure to grant

severance rendered the ttrial “fundamentally

unfair.”). As found by the Eleventh Circuit below,

“hlf any two defendants could be properly joined in a

penalty phase, it was Puiatti and Glock.” Puvatts,

626 F.3d at 1318. The defendants committed the

murder, robbery and kidnapping of Mrs. Ritchie

together, issued a joint confession, and their roles in

the murder were not in dispute. The defendants

were close in age, and there was no vast disparity in

either the quality or quantity of mitigating evidence.

There was simply no compelling reason for the trial

court to grant a separate penalty phase for each

defendant. ‘The grounds alleged by Puiatti in support

of severance are either not supported by the record,

not persuasive, or simply insufficient to support

finding an abuse of discretion 1n this case, much Jess

a serious constitutional error.

Puiatti and Glock did not pursue materially

inconsistent penalty phase theones. They were both

classified as followers and unlikely to commit the

crime if they were alone. Significantly, Dr.

Mussenden, Glock’s mental health expert, did not

assert that Glock was under the influence or

domination of Pusatt:.5 Similarly, Dr. DelBeato [one

of Puiatti’s two mental] health experts} did not testify

that Puiatti was under the influence or domination of

Glock. Rather, he testified that based upon Puiatti’s

personality, stress, and brain damage, he “could have

been easily influenced.” (T10/2296). In fact, Dr.

DelBeato testified on cross-examination by the State

that 1 “couldn't say duress or --” “(substantial

domination)" mitigator applied in this case.

(T10/2297) Dr. Meadows did briefly mention that

based upon Petitioner's personality characteristics,

he was under the influence or domination of another

person {presumably Glock] at the time of the

offense.6 However, Dr. Mussenden did not relate his

conclusion to the particular facts of this case and

even a cursory review of Puiatti’s joint confession

with Glock refutes this theory.’

6 Dr Mussenden did testufy that this was atypical behavior for

Glock and that he would probably not have committed the crime

unless he was with someone else. (T10/2348-49).

6 Contrary to Puratti’s argument, the tria) court's sentencing

order correctly referenced the mental health testimony, noting

that Pwatts called Dr. Meadows and Dr. DelBeato while Glock

called Dr. Mussenden. (R2/317, Sentencing Record).

? The fact that one of Putattzs's experts asserted that Puiatt: was

under the influence of Glock might support Glock’s contention

that he waa prejudiced by the joint penalty phase, but, does not

In any way suggest Puiatti was prejudiced.

35

However, even if Glock and Puiatti’s mitigation

theories were antagonistic, this fact alone does not

require severance. As noted by the Eleventh Circuit

below:

In Zafiro, the Supreme Court explained

that “[mJutually antagonistic defenses

are not prejudicial per se.” [FN19]

Zafiro, 506 U.S. at 538, 113 S.Ct. at 938;

see Blankenship, 382 F.3d at 1122

(stating Zafiro “specifically rejected the

notion that defendants who have

contradictory defenses are inherently

prejudiced”). And “it is well settled that

defendants are not entitled to severance

merely because they may have a better

chance of acquittal in separate trials.”

Zafiro, 606 U.S. at 540, 113 S.Ct. at 938.

FN19. In Zafiro, the Supreme

Court surveyed circuit court

decisions and observed that “the

courts have reversed relatively

few convictions for failure to

grant a severance on grounds of

mutually antagonistic or

irreconcilable defenses.” 506 U.S.

at 538, 113 S.Ct. at 937.

Puiatti, 626 F.3d at 1310.

36

Puiatti argues that he was prejudiced by the joint

penalty phase in that his two mental health experts

faced cross‘examination by counsel! for co-defendant,

Glock.§ However, the entire cross-examination of Dr.

DelBeato by Glock’s counsel consisted of the

following:

Q: Dr. DelBeato, is it true that most

people are more easily influenced when

they’re under stress?

A: Yes.

Q: And is it fair to say that whether or

not somebody is being influenced or

manipulated by another, that only

depends on the person, the psychological

profile of the person that’s being

influenced, but also the possibility of a

person who's in the position to influence

the psychological profile.

A: There would be a relationship.

Q: And you have never examined this

man?

A: No.

(T 10/2257).

§ Glock'’s counsel did not cross-examine Puratti'’s lay witnesses

37

Not a single point damaging to Puiatti’s case in

mitigation can be discerned from the foregoing

colloquy The lengthy and damaging. cross:

examination of Dr. DelBeato came entirely from the

State, and, was proper and would have occurred

whether Petitioner and Glock were tried together or

separately. Similarly, the cross-examination of Dr.

Meadows, Petitioner’s remaining mental health

expert, by Glock’s counsel, cannot be described as

compelling.

The entire cross‘examination of Dr. Meadows by

Glock’s counsel consisted of the following:

Q: Dr. Meadows, whether - - is it fair to

say that whether or not Mr. Puiatti was

under substantial domination of another

person at the time of the offense would

depend upon the psychological profile of

the other person?

A: Without understanding, you know, in

detail, 1 would say it 1s possible, yes.

Q: Have you ever done any tests or

reviewed any records of Robert Glock,

JI?

A: The confession, um, I] have had some

sketchy data about his background and

temperament from the defendant, from

Mr. Puiatti’s counselor.

Q: Okay. But you have not seen any

psychological testing, or reports of Mr.

Glock, is that correct?

A: That’s correct.

(T10/2428). Again, this extremely brief cross-

examination by Glock’s counsel was not damaging to

Petitioner.

Puiatti mentions that the prosecutor linked the

two defendants in his penalty phase closing

argument. However, this fact does not in any

manner support Puiatti’s severance claim. Although

the prosecutor argued in closing the defendants were

like two “peas” in a “pod,” Puiatti's counsel also noted

Similarities between the two defendants. Defense

counsel argued: “The family also said that Carl was

attracted to misfits and when asked a question by

Mr. Cole [prosecutor] whether Carl was perhaps one

of those himself, Mrs. Puwiatti said she wouldn't deny

that he had problems. Nonetheless, misfits, both of

them misfits...” (T11/2510). Given the facts of this

case, and, the joint confession, the State is hard

pressed to envision an argument by the prosecutor

which would not link the two defendants. The

prosecutor could appropriately make the same

argument whether Puiatti and Glock were tried by

separate penalty phase juries.

39

The undisputed record indicates that Puiatti was

at the very least, an equal participant in the

kidnapping, terrorizing and murder of Mrs. Ritchie.®

This 1s not a case where one co-defendant accused the

other of being the triggerman during the penalty

phase. Yet, even this far more potentially damaging

penalty phase scenario did not demand habeas relief

in Rastafari v. Anderson, 117 F.Supp.2d 788, 806

(N.D. Ind. 2000). In fAastafari, the court denied

habeas rehef for failure to sever the penalty phase

and ineffective assistance where each defendant

pointed the finger at the other as the triggerman,

noting that “there is certainly a quantity of evidence

to suggest that the jury’s task was made more

difficult because the defendants were not severed

during the penalty phase, this court is not persuaded

that the jury was unable to give individualized

attention to each defendant's character, history, and

the offense in question.”

® Indeed, the joint penalty phase precluded the prosecutor from

shifting more of the blame on Petitioner. Though Glock may

have initially suggested they kil] the victim, Petitioner agreed,

and, turned the car around so that the victim could be

murdered. It was Pusatti who was the first to fire shots at end

strike the helpless and comphant victim from close range.

Puiatti admitted his shots struck the victim in the shoulder and

chest. (T9/1996). It was also Pussatti who repeatedly drove the

car back to the victim so that he and Glock could ensure her

death.

40

Puiatti’s contention that the jury may have held

the fact Petitioner chose not to testify during the

penalty phase against him’® simply because Glock

chose to testify is speculative and unwarranted given

the jury instructions in this case. During the guilt

phase the jury was specifically advised by the trial

court not to hold the fact the defendant failed to

testify against him. Further, this claim of prejudice

was not made on direct appeal to the Florida

Supreme Court and therefore was not exhausted in

state court.

Petitioner's claim that “Puiatti was never able to

make any similar statement to the jury()” referencing

Glock’s decision to testify, is perplexing. (Cert. Pet.

at 5). Puiatti certainly had the option to testify in

front of the jury, but, for whatever reason, chose not

‘0 In the guilt phase the jury was specifically instructed that it

could not hold the fact the defendant chose not to testify against

him. Courts generally presume the jury follows instructions

Richardson v. Marsh, 481 U.S. at 207 (noting the “almost

invariable assumption” of the law that jurors follow their

instructions) There is nothing in this record to overcome that

presumption in this case. Courts have generally held that

reinstruction on guilt phase instructions such aa not testifying

is not necessary in the penalty phase as the jury 18 expected to

remember and apply those instructions. See, People v. Stanley,

39 Cal.4th 913, 961-962, 140 P ad 736, 770 (Cal. 2006) (finding

no reversible error where the court failed to reinstruct the jury

not to draw an adverse inference from defendant's failure to

testify un the penalty phase.). People v Hardy, 2 Cal 4th 86,

209, 825 P.2d 781, 857 (Cal. 1992) (“Although the trial court

failed to reinstruct the jury not to draw any adverse inference

from Hardy's silence at the penalty phase, it had no duty to do

80."),

41

to. Punatti’s choice cannot be blamed on his joint

penalty phase with Glock.??

Puiatti cites no evidence in the record that the

jury or tria] court impermissibly refused to consider

the two defendants as individuals. The trial court’s

instructions clearly advised the jury that they were

to consider each defendant and each sentence

separately and render a separate recommendation

for each defendant. (T11/2525-27). At no point did

the trial court suggest that a single sentence or

consistent sentence should be rendered for each

defendant. Moreover, Puiatti failed to object to the

trial court’s instructions or request any special

penalty phase instructions on the question of

separate sentencing recommendations. Thus,

Puiatti’s repeated reference to the lack of, or

inadequacy of the trial court’s instructions in this

case 18 a point which is unpreserved, and

unexhausted 1n state court.

A fact intensive review of the llth Circuit's

decision as requested by Puiatti, would simply not

lead to a different result. Despite Puiatti’s attempt

to conflate a case for prejudice emanating from his

joint sentencing with Glock, the facts of this case

render a joint penalty phase particularly appropriate.

(same charged crimes, same victim and joint

confession). This petition does not present an

important unsettled issue of law and the underlying

\\ Nor, can Puiatti blame his joint sentencing on the jury's

exposure to Puratti's criminal history. As noted by the Eleventh

Circuit, Puratts’e own witnesses revealed his cnmuinal history.

See, e.g , T10/2380-82, 2398. Pwatt:,626 F 3d at 1317

42

decision does not conflict with any of this Court's

precedent. Accordingly, the petition for writ of

certiorari should be denied.

D. Any Severance Error Would Be Harmless Under

Brecht

Finally, assuming for a moment that a

constitutional error can be discerned on this record,

Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710

(1993) compels denial of the writ in this case. As

noted by this Court in Brecht, habeas relief 1s

designed to afford relief only to those whom society

has “grievously wronged.” Brecht, 507 U.S. at 637,

113 S. Ct. 1710. The grant of habeas relief must reat

upon some compelling factual or legal basis, not

simply substitution of a federal court's discretion for

that of the state trial court below. See, Ca/deron v.

Thompson, 523 U.S. 538, 539, 555-556, 118 S. Ct.

1489, 1493, 1500-01 (1998) (recognizing the “‘the

profound societal costs that attend the exercise of

habeas jurisdiction,” and the restrictions placed on

granting habeas relief to reflect the Court’s “enduring

respect for ‘the State’s interest in the finality of

convictions that have survived direct review within

the state court system.”)(quoting Smith v. Murray,

477 U.S. 527, 539 (1986) and Brecht at 635)

Not a single aggravating or mitigating factor

would be altered or changed under the facts of this

case had Petitioner been tried separately from Glock.

The same three aggravating factors [CCP, avoid

arrest, and prior violent felony} are balanced against

the same case in mitigation. Since the underlying

43

facts of this heavily aggravated case remain

unchanged with an 11°1 jury recommendation, !? it is

simply inconceivable that tho jury or trial court

below would have reached a different decision if only

Puiatti’s penalty phase had been separated from

Glock’s. This was a highly aggravated case, involving

the kidnapping and crue] murder of a helpless and

compliant victim. This was no spontancous or quick

murder from a robbery gone bad, but a cold, and

cruel decision to end an innocent and ternfied young

woman's life. This case is shocking in that it was so

cold, and methodical, with the defendants repeatedly

returning to ensure the victim's death. A substantial

and injurious effect on the penalty phase has not

been shown. See, Calderon v. Coleman, 525 U.S. 141,

147, 119 S. Ct. 500, 504 (1998) (“The court must find

that the error, in the whole context of the particular

case, had a substantial and injurious effect or

influence on the jury's verdict.”).

In conclusion, Petitioner has failed to demonstrate

that the Eleventh Circuit's decision is inconsistent

with any decision from this Court or any other court

of appeals. A fact intensive review of the state trial

court's exercise of discretion in this case would have

no impact beyond the interests of the parties. See,

Rudolph v. United States, 370 U.S. 269, 82 S. Ct.

1277 (1962) (recognizing that a certiorari petition

predicated on reviewing facts of importance only “to

the litigants themselves” was an_ inappropriate

ground to grant a writ).

12 Florida is a majonty jury vote state on the penalty phawe jury

recommendation.

44

CONCLUSION

Based on the foregoing, Respondent respectfully

requests that this Court deny the petition for writ of

certiorari.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

CANDANCE M. SABELLA*

Chief Assistant Attorney General

Florida Bar No. 0445071

*Counsel of Record

SCOTT A. BROWNE

Assistant Attorney General

Florida Bar No. 0802743

3507 East Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: 813-287-7910

Facsimile: 813-281-5501

candance.sabella@myflondalegal.com

COUNSEL FOR RESPONDENT