Opposition Brief — Poyck v. Florida (No. 07-524)

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| OFFICE OF THE CLERK |

Case No. 07-524 | SUPREMe. COURT, U.S.

IN THE SUPREME COURT

OF THE UNITED STATES

A seis deeamemteisiogeadiaiabetnsibtieaibiedld

WILLIAM VAN POYCK, Petitioner

vs.

STATE OF FLORIDA, Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF FOR RESPONDENT IN OPPOSITION

BILL McCOLLUM.

ATTORNEY GENERAL

CELIA A. TERENZIO

ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 0656879

OFFICE OF THE ATTORNEY GENERAL

1515 N. FLAGER DRIVE, SUITE 900

WEST PALM BEACH, FL 33401-2299

(561) 837-5000

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED

CAPITAL CASE

As stated by Petitioner:

(1) Where a defendant is sentenced to

death by a judge and jury who made

findings that he was the triggerman, is it

a violation of the Eighth and Fourteenth

Amendments to deny that defendant the

right to present newly discovered evidence

disproving the triggerman theory solely on

the grounds that, as a matter of law, such

evidence "probably" would not have

affected the sentence?

(2) Must reviewing courts in "weighing"

states apply Chapman v. California's

harmless error analysis, or Boyde v.

California's "reasonable likelihood"

standard to death sentences rendered

inherently unreliable by findings that

affect the sentence and are later shown to

be affirmatively false?"

As restated by Respondent:

WHETHER CERTIORARI IS

WARRANTED TO REVIEW A STATE

COURT RULING WHICH IS MERELY

AN APPLICATION OF THE LONG

ESTABLISHED STANDARD OF REVIEW

FOR CLAIMS OF NEWLY DISCOVERED

EVIDENCE WHEN THE ISSUES WERE

NEVER PRESENTED BELOW; IT DOES

NOT PRESENT A FEDERAL QUESTION;

NOR DOES IT CONFLICT WITH ANY

OTHER FEDERAL PRECEDENT.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF CITATIONS

OPINION BELOW

CONSTITUTIONAL PROVISIONS

JURISDICTION

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

REASONS FOR DENYING THE WRIT

QUESTION

CERTIORARI REVIEW IS NOT

WARRANTED AS THERE WAS NEVER

ANY CHALLENGE IN STATE COURT

TO THE STATE COURTS’ APPLICATION

OF THE LONG ESTABLISHED

STANDARD OF REVIEW FOR CLAIMS

OF NEWLY DISCOVERED EVIDENCE:

THE CLAIM DOES NOT PRESENT A

FEDERAL QUESTION; NOR DOES IT

CONFLICT WITH ANY OTHER

FEDERAL PRECEDENT.

(Claims I and II restated)

CONCLUSION

TABLE OF CITATIONS

STATE CASES

DuBoise v. State,

520 So. 2d 260 (Fla. 1988)

Van Poyck v. Singletary,

715 So. 2d 930 (Fla. 1998), cert.

denied, 526 U.S. 1018 (1999)

Van Poyck v. State,

564 So.2d 1066 (Fla. 1990), cert.

denied, 499 U.S. 932 (1991)

Van Poyck v. State,

694 So. 2d 686 (Fla.), cert.

denied, 522 U.S. 995 (1997)

Van Povck v. State,

908 So. 2d 326 (Fla. 2005), cert.

denied, 547 U.S. 1035 (2006)

Van Povck v. State,

961 So. 2d 220 (Fla. 2007)

FEDERAL CASES

Anderson v. Harless,

459 U.S. 4 (1982)

Bartlett v. Stephenson,

ae, Be OD cw wccubuwcdwuowees 23

Bradshaw v. Stumpf,

545 U.S. 175 (2005)

Butz v. Glover Livestock Commission Co.,

411 U.S. 182 (1973)

Chapman v. California,

386 U.S. 18 (1967)

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

471 U.S. 1140 (1985)

Clemons v. Mississippi,

494 U.S. 738 (1990)

Enmund v. Florida,

458 U.S. 782 (1982)

Herrera v. Collins,

i ee vies eee ewes 20

Immigration and Naturalization Service v. Abudu,

Se ee ees eer ee are 20

Lavne & Bowler Corp. v. Western Well Works. Inc.,

Se rt hg ae es 24

O’Sullivan v. Boerckel,

526 U.S. 838 (1999)

Powell v. Nevada,

ee ee a re eer. 24

Rice v. Sioux City Memorial Park Cemetery. Inc.,

ee ee eS Oe ey eae eer hues 24

Rockford Life Insurance Co. v. Illinois Department of

Revenue,

482 U.S. 182 (1987)

Sochor v. Florida,

504 U.S. 527 (1992)

Strickland v. Washington,

466 U.S. 668 (1984)

Tison v. Arizona,

481 U.S. 137 (1987)

United States v. Agurs,

427 U.S. 97 (1976)

Van Povck v. Florida Department of Corrections,

290 F. 3d 1318 (11™ Cir.), cert.

denied, 537 U.S. 812 (2002)

OTHER AUTHORITIES

Case No. 07-524

IN THE SUPREME COURT

OF THE UNITED STATES

WILLIAM VAN POYCK, Petitioner

vs.

STATE OF FLORIDA, Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

OPINION BELOW

The opinion below has been reported as Van

Poyck v. State, 961 So. 2d 220 (Fla. 2007).

CONSTITUTIONAL PROVISIONS

Respondent accepts as accurate Petitioner's

statement regarding the applicable constitutional

provisions involved.

JURISDICTION

Petitioner is seeking jurisdiction pursuant to 28

U.S.C. § 1257. Although this is the appropriate

provision, the requirements of same have not been met.

STATEMENT OF THE CASE

The Florida Supreme Court entered its opinion on

May 3, 2007. A motion for rehearing was denied on July

16, 2007. Petitioner is now seeking certiorari review in

this Court.

STATEMENT OF THE FACTS

Van Poyck’s status as the co-defendant who did

not actually shoot police officer Fred Griffis has been

reviewed extensively since 1990. On direct appeal, the

Florida Supreme Court made a factual determination

that William Van Poyck was not the actual shooter.’

However, the Court upheld the sentence of death based

on petitioner’s major participation in the underlying

crime. The court found:

We find no merit in Van Poyck’s claims

that he was a minor actor and did not have

the culpable mental state to kill. In

DuBoise v. State, 520 So.2d 260 (Fla.

1988), we reiterated the established

principle in Florida that the death penalty

‘On direct appeal, Van Poyck presented four claims

addressed to the “triggerman” issue. He asserted: (1) the evidence

against him was insufficient to support his conviction for

premeditated first-degree murder (SR 35-45); (2) the trial court's

Phase Two instructions failed to inform the jury of the mandatory

Tison v. Arizona, 481 U.S. 137 (1987) and Enmund v. Florida, 458

U.S. 782 (1982) factual determination (SR 66-70); (3) the trial court

erred in failing to make the required findings under Enmund/Tison

in the sentencing order (SR 70-77); and (4) the death sentence is not

proportional because Van Poyck was not the triggerman (SR 99-

101). Van Povek v. State, 564 So. 2d 1066, 1069-70 (Fla. 1990), cert.

denied, 499 U.S. 932 (1991).

is appropriate even when the defendant is

not the triggerman and _ discussed

proportionate punishment, stating:

In Tison the Court stated

that Enmund covered two

types of cases that occur at

opposite ends of the

felony-murder spectrum, i.e.,

“the minor actor in an armed

robbery, not on the scene,

who neither intended to kill

— found to have had

c

any#culpable mental state”

and “the felony murderer

who actually killed,

attempted to kill, or intended

to kill.” The Tison brothers,

however, presented “the

intermediate case of the

defendant whose

participation is major and

whose mental state is one of

reckless indifference to the

value of human life.” The

Court recognized that the

majority of American

jurisdictions which provide

for capital punishment

“specifically authorize the

death penalty in a

felony-murder case where,

though the defendant’s

mental state fell short of

intent to kill, the defendant

was the major actor in a

felony in which he knew

death was highly likely to

occur,” and that “substantial

participation in a violent

felony under circumstances

likely to result in the loss of

innocent human life may

justify the death penalty

even absent an ‘intent to

kill.” Commenting that

focusing narrowly on the

question of intent to kill is an

unsatisfactory method of

determining culpability, the

Court held “that major

participation in the felony

committed, combined with

reckless indifference to

human life, is sufficient to

satisfy the Enmund

culpability requirement.”

Id. at 265-66 (citations

omitted, emphasis added)

(quoting Tison v. Arizona,

481 U.S. 137, 107S.Ct. 1676,

95 L.Ed.2d 127 (1987)):

Although the record does not

establish that Van Poyck

was the triggerman, it does

establish that he was the

instigator and the primary

participant in this crime. He

and Valdez arrived at the

scene “armed to the teeth.”

Since there is no question

that Van Poyck played the

major role in this felony

mrder and that he knew

lethal force could be used, we

find that the death sentence

is proportional.

Van Poyck, 564 So. 2d 1066, 1070-71 (Fla. 1990)

(footnote omitted), cert. denied, 499 U.S. 932 (1991)(C-9-

11). (emphasis supplied).

Petitioner's non-triggerman status was also

raised in three state collateral proceedings. The first

was in a motion for postconviction relief.* Van Povck v.

State, 694 So. 2d 686, 689 (Fla. 1997), cert. denied, 522

U.S. 995 (1997). The second was raised in a state

“Van Poyck’s postconviction claims regarding his non-

triggerman status for sentencing purposes were as follows: “(6) the

judge and jury weighed the invalid aggravating factors that the

murder was premeditated or that Van Poyck was the triggerman”

and “(11) Edmund/Tison errors necessitate a reversal of Van

Poyck’s death sentence.” Van Povck v. State, 694 So. 2d 686, 698

(Fla.), cert denied, 522 U.S. 995 (1997).

habeas petition®. Van Povck v. Singletary, 715 So. 2d

930, 931 n.1 (Fla. 1998), cert. denied, 526 U.S. 1018

(1999). And the third was in a successive motion

seeking DNA testing.’ Van Poyck also sought relief in

federal court. Therein he raised the issue that counsel

was ineffective for failing to present forensic evidence

that he was not the triggerman. All relief was denied.

Van Povck v. Florida Department of Corrections, 290 F.

3d 1318 (11 Cir.), cert. denied, 537 U.S. 812 (2002).

Respondent cannot accept Petitioner's rendition

of the facts incorporated into the “STATEMENT OF

THE CASE” as it contains improper argument;

°In his habeas petition appellant raised the Enmund/Tison

issue for a third time. Review was again denied: “This claim was

raised and rejected on direct appeal, Van Poyck, 564 So. 2d at 1070-

71, and also on the rule 3.850 appeal. Van Poyck, 694 So. 2d at 698.”

Van Povck v. Singletary, 715 So. 2d 930 (Fla. 1998), cert denied,

526 U.S. 1018 (1999).

*Van Poyck argued that DNA testing of the clothes worn by

himself and co-defendant Valdez would show that it was Valdez

who fired the weapon that killed Officer Fred Griffis. The Florida

Supreme Court upheld the trial court’s summary denial of that

claim. Ven Povck v. State, 908 So. 2d 326 (Fla. 2005), cert. denied,

547 U.S. 10352006).

improper’ editorializations of the proceedings and

glaring omissions of crucial facts.

The facts recounted by the Florida Supreme

Court on direct appeal are as follows:

The record establishes that on June 24,

1987, corrections officers Steven Turner

and Fred Griffis transported James

O’Brien, a state prison inmate, in a van

from Glades Correctional Institute to a

dermatologist’s office for an examination.

Griffis, who was not armed, drove the van

while Turner watched O’Brien, who was

secured in a caged area behind Griffis.

After Griffis pulled the van into an alley

behind the doctor’s office, Turner looked

down for his paperwork. Upon looking up,

he saw a person, whom he later identified

as Van Poyck, aiming a pistol at his head.

Van Poyck ordered Turner to exit the van.

At the same time, Frank Valdez, an

accomplice of Van Poyck’s, went to the

driver's side of the van. Turner testified

that Van Poyck took his gun, ordered him

to get under the van, and kicked him while

he was attempting to comply with Van

Poyck’s order. He testified that, while

under the van, he saw Griffis exit the van:

he noticed another person forcing Griffis to

the back of the van; and, while noticing

two sets of feet in close proximity to the

rear of the van, he heard a series of shots

and saw Griffis fall to the ground. Turner

further stated that Van Poyck had stopped

kicking him when the gunfire started, but

noted that he did not know where Van

Poyck was at the time of the shooting.

Griffis was shot three times, once in the

head and twice in the chest. Expert

testimony indicated that the shot to the

head was fired with the barrel of the gun

placed against Griffis’ head and that each

of the wounds would have been fatal. It

was also determined that the murder

weapon was a Hungarian [nterarms nine

millimeter semiautomatic pistol.

After Griffis was shot, Turner was forced

to get up from under the van and look for

the keys. Upon realizing that Turner did

not have them, Valdez fired numerous

shots at a padlock on the van in an

attempt to free O’Brien. One of the shots

ricocheted off of the van and _ struck

Turner, causing him minor injuries.

Turner testified that at around this time

Van Poyck aimed the Hungarian

Interarms semiautomatic nine millimeter

pistol at him and pulled the trigger.

Although no bullet was fired, Turner

stated that he heard the gun click. Turner

then fled the scene when Van Poyck

turned his attention to Valdez, who was

smashing one of the windows on the van.

After Van Poyck noticed that two cars had

just driven into the alley, he and Valdez

approached the cars and Van Poyck

shattered the windshield of one of the cars

with the butt of a gun. Van Poyck and

Valdez then ran to a Cadillac parked in an

adjacent parking lot and departed from

the scene. A police officer, who arrived at

the scene and witnessed the two men

leaving, radioed for help and a chase

followed. During the chase, Van Poyck

leaned out of the car window and fired

numerous shots at the police cars in

pursuit, hitting three of them.

Valdez eventually lost control of the

Cadillac and the car crashed into a tree.

Van Poyck and Valdez were immediately

taken into custody and four pistols were

recovered from the car: a Hungarian

Interarms nine millimeter semiautomatic

pistol, a Sig Sauer nine millimeter

semiautomatic pistol, a Starr .22 caliber

semiautomatic pistol, and Turner’s Smith

and Wesson .38 caliber service revolver.

Van Poyck, testifying in his own behalf,

denied that he shot Griffis and stated that,

while kicking Turner, he heard the

gunshots and saw Griffis fall to the

ground. He did, however, acknowledge

that he planned the operation and

recruited Valdez to assist him in his plan.

Additionally, he stated that they took

three guns with them.

Van Povck, 564 So. 2d at 1067-1068. (C-1-3)(emphasis

added).

Other facts germane to this petition are as

follows. Van Poyck testified at trial, that he wanted to

help his friend, James O’Brien escape from prison, and

he (Van Poyck), and he alone had been contemplating

this for approximately two years (ROA 2619-22; SR 443-

446). Van Poyck put the escape plan together, recruited

Valdes to assist, and gave Valdes orders about how to

proceed. (ROA 2622, 2626-27, 2630-31; SR 446, 450-451,

454-455). While Valdes provided the guns, Van Poyck

verified they were loaded. (ROA 2628, 2656-57: SR 452,

480-481). The plan was for Valdes to secure the

corrections’ van driver and Van Poyck would get the

officer who was in the passenger seat (ROA 2647; SR

473).

Following Officer Griffis’ murder, Van Poyck

turned to Officer Turner and demanded the key to the

van and threatened his life (ROA 2649-50: 473-474).

10

Van Poyck admitted telling the passenger, Officer

Turner, to get under the van or he was a dead man

(ROA 2648; SR 474). Officer Steven Turner testified

that Van Poyck pointed a gun at his head, told him he

was a dead man and pulled the trigger. (ROA 1706-

1708). Turner heard a click as the gun misfired and he

was then able to run away.’ (Id.) Van Poyck also noted

that Valdes went through Officer Griffis’ pockets after

he was shot and that there was blood around (ROA

2650; SR 474). Van Poyck admitted that he was not

under the influence of any substance that might have

impaired his ability to think or reason - Van Poyck

knew exactly what he was doing on the day of the

murder. He was not impaired by any mental infirmity

(ROA 2629-31, 2639; 453-455, 463). He also reiterated

that he set up the entire criminal plan which resulted in

*Van Poyck was also convicted of the attempted murder of

Turner.

11

Officer Griffis’ death. (ROA 2662; SR 486).

The jury was given a special verdict form in this

case. They were instructed to check the box for either

“felony murder” or “premeditated murder” if the

decision as to either theory was unanimous. The jury

checked the box for felony murder which demonstrated

that they were unanimous in their determination that

Van Poyck was guilty of felony murder.

The state did not base its argument for a death

recommendation on the theory that Van Poyck was the

shooter. For instance, prior to commencement of the

penalty phase, the trial court, with the agreement of the

parties, confirmed that emphasis would not be placed

upon either first-degree murder theory. The trial judge

inquired: “Does everybody then agree as to, Ithe

instruction] ‘Ladies and gentlemen of the jury, you have

found the Defendant guilty of first degree murder, and

I leave it at that?” (ROA 3183; SR 692). Defense counsel

12

agreed. (Id.). The State sought and discussed the four

statutory aggravating factors,° the State told the jury to

assume that Valdez was the triggerman. (ROA 3511-12;

SR 766-767). The defense then argued Van Poyck’s

participation was minor and that he was not the

triggerman, and to this, the State commented on Van

Poyck’s major role in the crime and noted in passing the

triggerman theory, but he never stated that this was

proven beyond a reasonable doubt. (ROA 3477-3540,

3562-65; SR 795, 817-820). There has never been a

finding by the judge or the jury that in fact they found

Van Poyck to be the shooter. The trial court’s sentencing

order did not find that Van Poyck was the shooter, but

only that he may have been the shooter. (F-4).

There has never been a concession by the state

°Those factors are: (1) crime committed while Van Poyck

was on parole: (2) crime was committed for purpose of effecting an

escape from custody; (3) great risk of death to many persons: and (4)

prior violent felony. (ROA 3482-3500, 3507-08). See Van Poyck v.

State, 564 So. 2d 1066, 1068-69, 1071 (Fla. 1990) (affirming

aggravating factors found by trial court).

13

that Valdez was the shooter. Instead, the Florida

Supreme Court simply found on direct appeal, some

seventeen years ago, that there was _ insufficient

evidence to establish that he was the shooter. Van

Povck, supra, at 1069.

REASONS FOR DENYING THE WRIT

QUESTION

CERTIORARI REVIEW IS NOT

WARRANTED AS THERE WAS NEVER

ANY CHALLENGE IN STATE COURT

TO THE STATE COURTS’ APPLICATION

OF THE LONG ESTABLISHED

STANDARD OF REVIEW FOR CLAIMS

OF NEWLY DISCOVERED EVIDENCE;

THE CLAIM DOES NOT PRESENT A

FEDERAL QUESTION; NOR DOES IT

CONFLICT WITH ANY OTHER

FEDERAL PRECEDENT.

(Claims I and II restated)

Petitioner claims that certiorari review is

warranted in the instant case because the state courts

applied an incorrect standard of review when assessing

his claim of newly discovered evidence. In support of

his claim he alleges that because the newly discovered

evidence was relevant to whether he was the actual

shooter of the victim, this Court’s opinion in Bradshaw

v. Stumpf, 545 U.S. 175 (2005) requires certiorari

review. He argues that the Florida Supreme Court was

required to apply the harmless error standard of

Chapman v. California, 386 U.S. 18 (1967); Clemons v.

Mississippi, 494 U.S. 738 (1990) and Sochor v. Florida,

504 U.S. 527 (1992).

In further support of his claim for review, he

asserts, albeit incorrectly, that the state courts’ denial

of relief amounted to a legal conclusion by the Florida

courts that a defendant’s “non-triggerman status” in a

case involving co-defendants has no bearing on a capital

sentence. He also alleges that the state courts’

application of the well recognized standard involving

claims of newly discovered evidence, was error.

Certiorari review must be denied for the following

reasons.

First, any claim involving the propriety of the

standard of review employed by the state courts is not

properly before this Court as the issue was never

presented below. Second, Stumpf is both factually and

16

legally distinguishable and, therefore, it cannot be

relied upon as a basis for certiorari review. And third,

a request to review a state courts’ determination that

newly discovered evidence would “probably not produce

a life sentence at a re-sentencing is an issue that turns

on the specific facts of this case which are not of any

importance beyond the litigants of this case and do not

present any conflict or expose a question of unsettled

federal law.

Van Poyck’s attack on the constitutional

propriety of the state courts’ application of the newly

discovered evidence standard of review is unexhausted

and alone warrants a denial of review. On appeal before

the Florida Supreme Court, Van Poyck only argued that

his case should be stayed until this Court had rendered

its decision in Stumpf. At no time did petitioner ever

argue that the standard of review employed by the trial

court was inapplicable. To the contrary, Van Poyck

17

conceded the appropriateness of the newly discovered

evidence standard in his case. He also conceded that he

was not entitled to relief in this case because of the

binding precedent of his prior collateral challenges

involving other evidence on the identical issue, L.e.,

“non-triggerman status’. He only argued that because

his case would be controlled by Stumpf, and assuming

an outcome therein favorable to him, the Florida

Supreme Court should stay the appeal pending Stumpf.

At no time did he ever argue that his claim of newly

discovered evidence should be analyzed under the

harmless error analysis of Chapman, supra; Clemons,

supra or Sochor, supra. Consequently, because the

issue was never raised below, the claim is wholly

unexhausted, and review must be denied. Anderson v.

Harless, 459 U.S. 4 (1982); O’Sullivan v. Boerckel, 526

U.S. 838 (1999)(mandating that issue must be brought

to highest court of state to satisfy exhaustion of state

18

court remedies).

Second, the issue presented does not involve a

federal question nor does the state court opinion create

any conflict requiring resolution. As noted above, this

case simply involves what impact, if any newly

discovered evidence would have at a subsequent penalty

phase. This is not a claim involving the

unconstitutional withholding of or the unconstitutional

failure to discover evidence resulting in the denial of a

federal right. Therefore, as recognized by this Court, as

well as most state and lower federal courts, claims of

newly discovered evidence are properly analyzed under

the standard that was applied in the instant case and

that is, “the defendant must establish that the newly

discovered evidence probably would have produced a life

sentence.” Van Povck v. State, 961 So. 2d 220, 227-228

(Fla. 2007). (A-9). See Strickland v. Washington, 466

U.S. 668 (1984) (approving appropriateness of the

19

stringent newly discovered evidence standard): Herrera

vy. Collins, 506 U.S. 390, 400 (1993)(explaining, “[cllaims

of actual innocence based on newly discovered evidence

have never been held to state a ground for federal

habeas relief absent an independent constitutional

violation occurring in the underlying state criminal

proceeding.”); Chapman, supra (explaining the

appropriate standard of review for constitutional

errors); United States v. Agurs, 427 U.S. 97, 111 n. 19

(1976), receded on other grounds (same); Cf.

Immigration and Naturalization Service v. Abudu, 485

U.S. 94, 107 n. 12 (1988)(same). Consequently, despite

the constitutional pretensions of this claim, Van Poyck

has not and cannot establish constitutional error.

Moreover, the Florida Supreme Court rejected in

toto, petitioner's claim that the court ignored or labeled

as irrelevant, his non-triggerman status. The Court

explained:

As in Diaz, the trial court in this case

found that the death penalty was justified

for Van Poyck independent of evidence

regarding the identity of the triggerman.

The trial court noted that Van Poyck

checked the guns to ensure that they were

loaded while traveling to the location

where the murder occurred, and concluded

that “[bly all evidence Mr. Van Poyck was

a major participant in the murder.” At

most, non-triggerman status would have

constituted nonstatutory mitigation which,

considering the four aggravating factors

and absence of other mitigation, would

probably not have yielded a_ lesser

sentence

Van Povck, 961 So. 2d at 226. (A-15).

Equally unavailing is petitioner's claim that

Stumpf justifies certiorari review. As correctly noted by

the Florida Supreme Court, this case does not involve a

constitutional due process violation, as in Stumpf:

Bradshaw 1s largely limited to its facts and

procedural posture. Its mandate was

simply to reconsider the effect of the new

evidence on the sentence, an issue the

lower court had not reached because it had

erroneously reversed the conviction. In

addition, Bradshaw involves a due process

claim grounded in inconsistent positions

21

taken by the prosecution in trials of

codefendants, which is not an aspect of

this case. To the extent that Bradshaw has

any bearing on this case, it stands for the

proposition that new evidence concerning

the identity of the triggerman is “material”

to a death sentencing determination. This

Court’s 2005 opinion in this case includes

the same acknowledgment:

We do not hold . . .that it

makes no difference in the

capital sentencing process

which of two codefendants

actually committed the

killing. Rather, we determine

only that under the

circumstances of this case

involving a murder of a

prison guard in a brutal

armed attack planned by

Van Poyck and carried out

with Valdez, DNA evidence

indicating that Van Poyck

was not the _ triggerman

would not have created a

reasonable probability of a

lesser sentence.

Van Povck IV, 908 So. 2d at 330.

Therefore, Bradshaw does not require

reconsideration of the 2005 decision.

Van Povck, 961 So. 2d at 227: (A-16-17). Van Poyck’s

dissatisfaction with the state courts’ denial of relief of

his newly discovered evidence claim is not a

constitutional issue. Review must be denied.

And finally, these claims turns completely on its

specific facts, which are of no interest to anyone other

than the parties to this litigation, which are of

insufficient importance to justify granting the writ. See

Bartlett _v. Stephenson, 535 U.S. 1301, 1304 (2002)

(issues with few, if any, ramifications beyond the

presenting case do not satisfy any of the criteria for

exercise of certiorari jurisdiction). In fact, the entire

factual premise of this claim is based solely on whether

a state court judge correctly found that Van Poyck did

not satisfy the basic requirement of the standard for

newly discovered evidence, i.e., under the facts of this

case, there is no reasonable probability that a statement

of a jailhouse inmate made twenty years after the

murder involving the alleged admission of the deceased

23

co-defendant would have changed Van Poyck’s sentence.

Because the petition has little significance except for the

“parties to this litigation,” review must be denied.

Rockford Life Insurance Co. v. Illinois Department of

Revenue , 482 U.S. 182, 184, n.3 (1987); Butz v. Glover

Livestock Commission Co., 411 U.S. 182 (1973)

(dissenting opinion); Powell v. Nevada, 511 U.S. 79, 86-7

(1994) (Thomas, J., dissenting); Chevron U.S.A., Inc. v.

Sheffield, 471 U.S. 1140 (1985)(Stevens, J., on denial of

certiorari); Rice v. Sioux City Memorial] Park Cemetery,

Inc., 349 U.S. 70, 79 (1955); see also, Layne & Bowler

Corp. v. Western Well Works, Inc., 261 U.S. 387 (1923)

(“... it is very important that we be consistent in not

granting the writ of certiorari except in cases involving

principles the settlement of which is of importance to

the public as distinguished from the parties ....”).

In conclusion, every reviewing court has found

that Van Poyck’s sentence of death was not predicated

24

on an erroneous assumption that he was the

triggerman. The Eleventh Circuit's comprehensive

determination was as follows:

During the penalty phase, the witnesses

called by the prosecutor only testified

about Van Poyck’s past crimes and about

the fact that he was on parole when the

instant offense was committed. The

prosecutor did not present additional

evidence suggesting that Petitioner was

the triggerman.

Even more telling is the prosecutor’s

closing argument. Petitioner’s being the

triggerman played only a very minor role

in the prosecutor's argument. As

aggravating factors, the prosecutor

advanced these things: 1) that Petitioner

was on parole when the crime was

committed; 2) that the crime was

committed for the purposes of effectuating

an escape from prison; 3) that Petitioner

knowingly created a great risk of death to

many persons; and 4) that Petitioner had

previously been convicted of a violent

felony. The establishment of these

elements did not require arguing that

Petitioner was the triggerman. The

presecutor never argued that it had been

established beyond a reasonable doubt

that Petitioner was the triggerman.

The only time the prosecutor did argue

that the evidence tended to show that

Petitioner was the triggerman was in

rebutting Petitioner's argument that he

was only an accomplice and played only a

minor role in the crime. Even in rebutting

that argument, however, the prosecutor

relied heavily on the idea that,

“(rlegardless of who the triggerman is,”

death would still be appropriate. Rather

than focusing the jury on who the

triggerman was, the prosecutor stressed

that Petitioner could not be considered a

minor participant because he had been the

one to come up with the idea of breaking

O’Brien out of custody and had planned

the crime. While the prosecutor did, on a

few occasions in his closing argument, say

that evidence in the case suggested that

Petitioner was the triggerman, the main

argument made by the prosecutor was that

the death penalty--because of the four

aggravating factors and because Petitioner

was not a minor participant in the

underlying violent felony--was an

appropriate sentence for Petitioner,

regardless of who actually shot Officer

Griffis.

Especially because the prosecutor’s main

argument was that the death penalty was

appropriate regardless of who _ the

triggerman was, we see no reasonable

probability that, if Counsel had presented

the additional evidence that Petitioner

26

was not the triggerman, the outcome ofthe

sentencing phase would have been

different. The Florida Supreme Court

could reasonably conclude that no

prejudice existed. The Florida Supreme

Court did reasonably conclude that the

triggerman-evidence claim entitled

Petitioner to no relief.

Van Povek v. Florida Department of Corrections, 290 F.

3d 1318, 1325-26 (11" Cir.), cert. denied, 537 U.S. 1105

(2002) (emphasis supplied).

There is no federal question to be reviewed, and

certiorari review must be denied.

27

CONCLUSION

Based on the foregoing arguments and

authorities, Respondent respectfully requests that this

Honorable Court deny Petitioner’s request for certiorari

review.

Respectfully submitted,

BILL McCOLLUM.

ATTORNEY GENERAL

CELIA A. TERENZIO

ASSISTANT ATTORNEY GENERAL

Florida Bar No. 0656879

OFFICE OF THE ATTORNEY GENERAL

1515 N. FLAGER DRIVE, SUITE 900

WEST PALM BEACH, FL 33411-2299

(561) 837-5000

COUNSEL FOR RESPONDENT