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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1601%3A2. Public record. Not legal advice.