Opposition Brief — Poyck v. Florida (No. 05-751)

murder which demonstrated that they were unanimous in their

determination that Van Poyck was guilty of felony murder.

Third, during the penalty phase, 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, [the 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 agreed. (Id.). As is clear from the penalty

phase record, the State sought and discussed the four statutory

aggravating factors,* and the State never relied upon the

triggerman theory for imposition of a death sentence. Rather, the

State told the jury to assume that Valdes was the triggerman.

(ROA 3511-12: SR 766-767). It was the defense that 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 cnme 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).

* 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).

6

REASONS FOR DENYING THE WRIT

QUESTION |

CERTIORARI REVIEW IS NOT

WARRANTED AS THE STATE COURT'S

DETERMINATION WAS PREMISED

STRICTLY ON APPLICATION OF A STATE

RULE OF PROCEDURE WHICH DOES NOT

PRESENT A FEDERAL QUESTION NOR

DOES IT CONFLICT WITH ANY OTHER

FEDERAL OR STATE CASE OPINION AND

THE FLORIDA SUPREME COURT?’S

FACTUAL FINDINGS ARE SUPPORTED BY

THE RECORD

(Claims | and II Restated)

Petitioner claims that certiorari revicw is warranted in the

instant case because allegedly the Florida Supreme Court has

created a per se rule depriving him of potential exculpatory

evidence which would reduce his capital sentence to life.

Specifically, Van Poyck asserts that the state courts’ opinion

violates his due process rights because it affirms the trial court’s

summary denial of his request for DNA testing. The State

asserts that in essence Vaii Poyck is requesting federal review of

a state courts’ application of a state discovery rule which is not

a proper basis for certiorari review. Moreover, the issue turns on

the specific facts of the 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.

Despite the constitutional pretensions of this claim, Van

Povck has not established constitutional error. There is no

question that a defendant does not have a constitutional right to

DNA testing, or for that matter any discovery. Petitioner

_

;

concedes that point. See petition 14. See Weatherford v.

Bursey, 429 U.S. 545 (1977) (rejecting argument that Brady

created a constitutional right to discovery in criminal cases); see

also Wardius v. Oregon, 412 U.S. 470, 474 (1973) (“the Due

Process Clause has little to say regarding the amount of

discovery which parties must be afforded...”); Amzona_v.

Youngblood, 488 U.S. 51, 58-59 (1988) (finding no

constitutional requirement that mandates State to conduct any

testing even if such testing might exculpate a defendant). All

that Van Poyck has done is demonstrated that he is dissatisfied

with the Florida Supreme Court's denial of relief on this claim,

but that does not create a constitutional issue. Review must be

denied. Barclay _v. Flonda, 463 U.S. 939, 957-58 (1983)

(plurality opinion) (stating "mere errors of state law are not the

concern of this Court, Gryger v. Burke, 334 U.S. 728, 731, 68

S.Ct. 1256, 1257, 92 L.Ed. 1683 (1948), unless they rise for

some other reason to the level of a denial of rights protected by

the United States Constitution.”).

Moreover, this claim turns completely on its specific

facts, which are of no interest to anyone other than the parties to

this litigation, and 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 one of the basic

requirements of the rule, 1.c., under the facts of this case, there is

no reasonable probability that DNA testing would change Van

Poyck’s sentence. Because the petition presents nothing more

than the application of state discovery rules and 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 C., 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

Memonial Park Cemetery, 349 U.S. 70, 79 (1955); see also,

Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S.

387 (1923) ("... its 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 ....").

A review of how the issue was presented and resolved in

state court will further demonstrate that this case neither presents

a federal question nor exposes a conflict that must be resolved by

this Court. Pursuant to Fla.R.Crim.P. 3.853, Van Poyck sought

DNA testing of the clothes that he and his co-defendant, Frank

Valdes, were wearing at the time Officer Griffis was murdered.

Van Poyck argued that DNA testing would “conclusively prove”

that it was Valdes, who actually shot Officer Griffis. The trial

court summarily denied the request finding,

pursuant to exhibits contained in the court file

which are incorporated herein as reference that

there is no reasonable possibility that any DNA

testing will result in exoneration or in a mitigated

sentence.

Van Poyck v. State, 908 So.2d 326, 32% (Fla. 2005). Petitioner

appealed. The Florida Supreme Court summarized the issue as

follows,

The issue before the Court is whether DNA

evidence establishing that Van Poyck was not the

triggerman creates a reasonable probability that

Van Poyck would have received a_ lesser

sentence,

9

Id. The Court upheld the trial court’s summary denial based on

three factors. First, the state supreme court found,

During the penalty phase, the State argued in

closing that the evidence supported a finding that

Van Poyck was the triggerman, but even if the

jurors were to find otherwise, they could still

recommend the death penalty if they concluded

that Van Poyck played a major role in the felony

murder and that he acted with reckiess

indifference to human life.

Second, the Court noted,

Similarly, the tnal court did not rely on Van

Poyck's triggerman status in imposing the death

penalty. The trial court found that the death

penalty was an appropriate sentence because the

mitigating evidence presented was insufficient to

outweigh the aggravating circumstances. See Van

Poyck I, 564 So.2d at 1068-69. None of the

aggravating circumstances found by the tnal

court were based on Van Poyck's triggerman

status.

In fact, the omy sndication that the trial court

even consideged V an Poyck's triggerman status is

a passage it} the trial court's order im which the

court stated that the "State clearly presented

competent and substantia! evidence as to the

crime of first degree felony murder and or first

degree premeditated murder and in reality

presented competent evidence that Mr. Van

Poyck may have tn fact been the individual who

pulled the trigger and shot Fred Griffis.”

10

(Emphasis supplied.) This statement

demonstrates only that the tnal court was

uncertain whether Van Poyck shot and killed

Officer Griffis, rather than a conclusion that Van

Poyck was the triggerman. Despite _ this

uncertainty, the trial court found that "by all

evidence Mr. Van Poyck was a major participant"

in the felony murder.

And third, the Florida Supreme Court noted,

Further, this Court did not rely on Van Poyck's

triggerman status in affirming his death sentence

on direct appeal. This Court stated that "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." Van Poyck I, 564 So.2d at 1070. The

Court concluded that the death sentence was a

proportional punishment "since there is no

question that Van Poyck played the major role in

this felony murder and that he knew lethal force

could be used." Id. at 1070-71. In reaching this

conclusion, we observed that the death penalty is

appropriate even when the defendant is not the

triggerman if the defendant is a major participant

in the felony and acted with reckless indifference

to human life. See id. at 1070. Evidence

establishing that Van Poyck was not the

trigyerman would not change the fact that he

played a major role in the felony murder and that

he acted with reckless indifference to human life.

1]

For the foregoing reasons, we hold that there is

no reasonable probability that Van Poyck would

have reccived a lesser sentence had DNA

evidence establishing that he was not the

triggerman been presented at trial. We do not

hold, as Justice Anstead asserts, 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 ina brutal armed attack planned

by Van Poyck and carried out with Valdes, DNA

evidence indicating that Van Poyck was not the

triggerman would not have created a reasonable

probability of a lesser sentence, which is the

standard for ordering DNA testing under rule

3.853(c)\(5)(C). Accordingly, we affirm the

circuit court's order summarily denying Van

Poyck's motion for postconviction DNA testing.

Id. (emphasis added).

In this petition, Van Poyck attempts to distort the findings

of the state supreme court. Van Poyck decnes that, “[t]he new

rule articulated by the Florida Supreme Court-evidence that a

capital defendant was not the triggerman is legally irrelevant in

determining the appropriateness of a death sentence-is in clear

conflict with prior holdings of this Court and violates any

number of basic constitutional principles repeatedly reaffirmed

by this Court.” Petition at 20-21. Van Poyck’s argument is

incorrect.

The gravamen of the state supreme court’s holding was

that petitioner's request for DNA testing under 3.353 was denied

properly because he failed to meet the materiality requirements

of 3.353(c)(5). The court’s finding that there was “no reasonable

12

-

probability” that he would have received a different sentence,

does not equate to a finding that the evidence was irrelevant.

The court explained that because Van Poyck’s sentence of death

was not predicated on an crroncous assumption that he was the

triggerman, any evidence in support of his non-triggerman status

would not have resulted in a life sentence. This standard of

“reasonable probability” is not new as it is akin to the well

known materiatity standard of Brady v. Maryland, 373 U.S. 83

(1963), as well as the very familiar prejudice prong standard of

Strickland vy. Washington, 466 U.S. 668, 691-692 (1984).

Clearly the “reasonable probability” standards applicable therein

do not equate to a finding by courts that the evidence “previously

withheld by the state” or “the evidence that ineffective counsel

did not present” was per se irrelevant, simply because a court

finds that the prejudice prong of Strickland or the materiality

prong of Brady had not been met.*

* See Kathy Swedlow, Don’t Believe Everything you read: A

Review_of Modern “Post Conviction” DNA ‘Testing Statutes, 38

Cal.W.L. Rev. 355 (Spring 2002).

. Every state to enact a DNA discovery rule, includes as a

prerequisite to testing that the results be “materia!” to the conviction

or sentence. See Ariz. Rev. Stat. 13-4240(B)(2003); Ark Code Ann.

16-112-125(c)(1)(B); Cal. Penal. Code 1405(c)(1)(B) (2003); Conn.

Public Act No. 03-242, Section 7; Del. Code Ann. title 11,

4504(a)(5)(2001 ); D.C. Code Ann. 4033(d)(2001): O.C.G.A. §5-5-4]1

(c)(3)(D).; Idaho Code, 19-4902(d)(1) (2002): Ill. Comp. Stat. 5/116-

3(c)(1 (2002); Ind. C »de §35-38-7-8; Maine Rev. Stat. Ann. 15, 2138

(4)(A) (2002); Md. Code Ann., Crim. Proc. §8-201(c) (2001 & 2003

Cum. Supp.): Mich. Comp. Laws 770.16 (3)9a) (2002); Minn. Stat..

590.01. la(c)(2); Mo. Rev. Stat. 547.035(2)(5)(2003): Neb. Rev. Stat.

29-41 20(5) (2001); N.Y. Crim. Pro. Law 440.30(1-a); N.C. Gen. Stat.

15A-269(b)(2)( 2003); N.M. Stat. Ann. 31-1A-1(D)(1) (2001); NJ.

Stat. Ann. 2A:84A-32a(d\(4) (2002); Tenn. Code Ann. 40-30-404

(2003); Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2002;

Utah Code Ann. 78-35a-301(2)(e) (2001): Va. Code Ann. 19.2-

13

As noted previously in the Statement of Case and Facts,

the Eleventh Circuit has previously assessed petitioner’s claim

that forensic evidence demonstrating that he was not the

triggerman was critical to his quest for a life sentence. The court

did so under a legal theory that is different than the one posited

in this petition. However, the factual findings are identical to the

state supreme court’s opinion detailed above. In a federal habeas

petition, Van Poyck claimed that his counsel was ineffective for

failing to uncover and present evidence to show that he was not

the triggerman. The Eleventh Circuit determined,

Petitioner argucs that Counsel's performance was

constitutionally defective because he failed to

present evidence that Petitioner was not the

triggerman. He identifics two such pieces of

evidence: that Valdes had blood on his clothes

matching Officer Griffis's blood type, but that

Petitioner did not; and that the murder weapon

had been purchased by Vald s's girlfriend and

that Valdes had been in possession of the gun

when he and Petitioner left to commit the crime.

...We--in this instance--do not discuss the

performance element of ineffective assistance of

counsel because we conclude that the Florida

Supreme Court could have reasonably concluded

that no prejudice had been showr A review of

the penalty phase transcripts convinces us that

Petitioner cannot establish that he was prejudiced

by Counsel's failure to introduce thes evidence.

During the penalty phasc, the witnesses called by

the prosecutor only testified about Van Poyck's

past crimes and about the fact that he was on

327. Havin) 2003): Wis. Stat. §974.07(7 a).

14

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 prosecutor never argucd 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 relicd heavily

on the idea that, "[rjegardless 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'Bricn out of

custody and had planned the crime. While the

15

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 was not the triggerman, the

outcome of the 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.

* Florida law provides that a mitigating circumstance

exists where "[t]he defendant was an accomplice in

the capital felony committed by another person and

his or her participation was relatively minor.” Fla.

Stat. Ann. §921.141(6)(d)

Van Poyck v. Moore. 290 F.3d 1318, 1325-26 (11 Cir. 2002),

cert. denied, 537 U.S. 1105 (2003) (emphasis supplied).

The legal analysis employed by the state supreme court

in the opinion under review hercin is very consistent with the

16

Eleventh Circuit’s analysis under Strickland. Because

petitioner's sentence of death was not predicated on an erroneous

assumption that Van Poyck was the triggerman, any evidence in

support of his non-tnggerman status would not have changed the

result of the sentencing proceeding. Clearly this is not a finding

that “triggerman” status is irrelevant as Van Poyck claims. The

state supreme court’s ruling did not deprive him of any

constitutional right.

In conclusion, the unassailed facts depicting Van Poyck’s

role as the major participant in the escape attempt of his fnend

was, and remains, the basis for his death sentence. Those facts

include the following: as admitted to by Van Poyck when he

testified at trial, he wanted to help his friend, James O’Brien

escape from prison, and he, 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 correction 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). Van Poyck admitted telling

the passenger, Officer Turner, to get under the van or he was a

dead man (RAO 2648; SR 474). Officer Steven Turner testi ‘ted

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

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

The State relied on this evidence at the penalty phase to

argue that appellant deserved a death sentence. The trial court

relied on this evidence to sentence Van Poyck to death and the

Florida Supreme Court relied on same to uphold this sentence of

death. The courts’ findings are more than supported by the

record. There is no federal question to be reviewed. Certiorari

must be denied.

Van Poyck was also convicted of the attempted murder of

Turner

LS

CONCLUSION

Based on the foregoing arguments and authorities,

Respondent respectfully requests that this Honorable Court deny

Petitioner’s request for certiorari review.

Respectfully submitted,

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

CELIA A. TERENZIO

ASSISTANT ATTORNEY GENERAL

Florida Bar No. 0656879

OFFICE OF THE ATTORNEY GENERAL

ISIS N FLAGER DRIVE, SUITE 900

WEST PALM BEACH, FL 33411-2299

(561) 837-5000

COUNSEL FOR RESPONDENT

19

_

Sa CE ee ‘

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"Supreme ¢ pers \

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DS : ae

FEB 2.7 2000 |

No. 05-751 OFFICE OF HE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2005

CAPITAL CASE

WILLIAM VAN POYCK,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

PETITIONER’S REPLY TO BRIEF FOR

RESPONDENT IN OPPOSITION

JEFFREY O. DAVIS

Counsel of Record

LAURI A. SCHUMACHER

ROLLINGS

Counsel for Petitioner

QUARLES & BRADY LLP

411 EAST WISCONSIN AVENUE

MILWAUKEE, WI 53202-4497

(414) 277-5000

TABLE OF AUTHORITIES

Arizona v. Youngblood, 488 U.S. 51 (1988) .............cccee000e

Barclay v. Florida, 463 U.S. 939 (1983)2.........ccccceseeceeeeeees

Bradshaw v. Stumpf, _U.S._, 125 S.Ct.

i etl iaccisiiies ebb bineencinisonnscancengestoveiotswenbeenias

Brown v. Sanders, US. 126 S.Ct.

Ss buéuedwacabonanioenns

Deck v. Missouri, US. , 125

a endouceunaiipeolioneensk

Van Poyck v. State, 694 So.2d 686

ESSER ES Le

Wardius v. Oregon, 412 U.S. 470 (1973).........ccccccceeesseeeees

TABLE OF CONTENTS

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il

ARGUMENT

Reduced to its essence, the State’s response to Van

Poyck’s Petition for Writ of Certiorari consists of two

arguments typically made against such petitions: the petition

does not raise a federal issue and would entail only fact bound

error correction. Van Poyck’s reply can be brief.

The first argument depends on the State’s

mischaracterization of Florida’s DNA statute as a “discovery

rule.” In fact, Florida has enacted a substantive statutory right

to defendants to obtain DNA testing in order to obtain

exoneration or mitigation of their sentences. Nothing of the sort

was at issue in the State’s cited cases. Arizona v. Youngblood,

488 U.S. 51 (1988) simply created a rule requiring good faith

on the part of the authorities to preserve evidence. Barclay v.

Florida, 463 U.S. 939 (1983) establishes that state trial court

error in considering evidence as a matter of state law does not

necessarily warrant reversal on constitutional grounds. Wardius

v. Oregon, 412 U.S. 470 (1973), if anything, supports Van

Poyck’s position; in that case this Court applied notions of

“fundamental fairness” in holding an Oregon statute requiring

the divulgence of alibi information without reciprocal

obligations on the part of the state to be unconstitutional.

Certainly none of these cases refutes the notion that Van

Poyck is entitled to a meaningful opportunity to avail himself of

a state-created right. Whatever label one wants to put on it,

Florida’s DNA statute extends a specific right that bears

directly on a criminal defendant’s interest in life and liberty,

meaning it cannot be extinguished without comporting with due

process. This is a constitutional issue, as previously described.

Pet’n p. 16-20. And it is an important one, worthy of this

Court’s attention, particularly given the pervasiveness of DNA

statutes; the potential DNA testing offers in achieving justice in

criminal cases; and its uncertain status in this Court’s death

penalty jurisprudence.

With respect to the State’s second argument — its

repeatedly made suggestion that this case involves issues

important only to "the parties to this litigation" (Resp. p. 8) —

there is a very clear constitutional principle at stake here, that is

not in any way bound up with the particular facts of this case:

whether it comports with due process to legally presume that a

jury that wrongly found a defendant guilty of premeditated

murder would have reached the same result knowing the true

facts surrounding the defendant’s more limited participation in

the homicide. Essentially, the courts below, and the state in its

response, have said that it is sufficient that some hypothetical

jury could have found the death penalty the appropriate

sentence if Van Poyck did not actually kill the victim. But what

some hypothetical jury “could have” done is not what the jury

did in this case. We know from the verdict form that as many

as 11 members of this jury did believe that Van Poyck was the

triggerman (Petitioner's Appendix F-1); consequently, all of the

litany of facts set forth by the prosecutor in his closing

argument as to why death was appropriate even if Van Poyck

was not the triggerman were largely irrelevant to its sentencing

determination. Quite simply, the jury rejected Van Poyck’s

testimony, given without the benefit of forensic evidence, that

he was not the triggerman. Van Poyck has thus never had a jury

finding that death was the appropriate sentence as a non-

triggerman defendant because this jury (or at least as many as

11 of its members) found that Van Poyck was the triggerman.

' Contrary to the State’s response (Resp. p. 7-8), Van Poyck does not

"concede" that there is no constitutional right to DNA testing. In fact,

Van Poyck’s petition notes that there may well be such a right, but that

that issue need not be addressed in this case since Florida has extended

such a right by statute. (Pet’n p. 14). Nonetheless, if the State's apparent

position that extinguishment of a state-created right to DNA testing

cannot implicate constitutional due process was somehow deemed

correct, then the issue of a constitutional right to DNA testing would, in

fact, be squarely before the Court.

In that sense, in assessing reasonable probability, the

courts below have treated this issue almost as if Van Poyck has

had no jury trial at all. The appellate courts have essentially

decided the appropriateness of his sentence de novo, akin to a

directed verdict. There are no unique facts driving that legal

decision — it is a fundamental flaw in logic, one that presumably

would apply in all non-triggerman cases. Henceforth, whenever

a defendant is found to be the triggerman over his protestations

that he was not, evidence proving him right (and the State

wrong) would not be relevant so long as the subsequent court

hearing a motion for DNA testing concludes on its own that

some hypothetical jury would have issued a death sentence

anyway.

The extinguishment of Van Poyck’s (or any

defendant’s) rights in such a manner does not comport with due

process. The DNA statute at issue provides Van Poyck the

opportunity to develop and present mitigating DNA evidence,

so long as there is a threshold showing that it would have a

“reasonable probability” to be mitigating. The State does not,

and credibly cannot, argue that there is no reasonable

probability that a defendant’s non-triggerman status is not

mitigating. Indeed, in reading the Florida Supreme Court’s

decision, there is a very real sense that a special rule is being

carved out due to the victim’s status as a prison guard.

Petitioner’s Appendix A-9 (relying on “circumstances of this

case involving a murder of a prison guard in a brutal armed

attack planned by Van Poyck”). This kind of ad hoc, results-

oriented reasoning is precisely what the Constitution is designed

to prevent.

The rule posited by the State — that a death row

defendant found guilty of premeditated murder is not entitled to

mitigating DNA evidence if the facts sufficiently demonstrate

death eligibility under non-triggerman status — flies in the face

of the decisions from this Court and others, in which a

defendant’s non-triggerman status was deemed relevant as

potential mitigation as a matter of course. That case law was

previously described and will not be repeated here. It should be

3

noted, however, that this Court’s recent decision in Bradshaw v.

Stumpf, _ U.S. ___, 125 S. Ct. 2398 (2005) a case cited in the

Petition, but nonetheless ignored by the State, completely

undermines the State’s position. In Bradshaw, the evidence

showing the egregiousness of the defendant’s conduct was at

least as strong in that case as the facts brought forth by the State

here. The defendant, Stumpf, had intentionally broken into the

home of the victim with an accomplice, shot one family

member in the head, twice, though not fatally, and then lied to

police about his involvement, until he learned that the family

member he shot had survived. Despite these facts, this Court

noted the importance of the tnggerman issue and remanded the

case for further proceedings, including the possibility of a new

penalty phase due to the prosecutor’s improper attempt to prove

that both defendants were the triggerman. Certainly, the State's

no prejudice analysis would have been at least as applicable in

Bradshaw as it is being argued for here. Nonetheless, in

remanding, this Court noted that a possible due process

violation occurred because “‘it is at least arguable that the

sentencing panel’s conclusion about Stumpf’s principal role in

the offense was material to its sentencing determination.” /d.,

125 S. Ct. at 2407-08.

It is impossible to conclude on this record that the jury

propefly considered and accepted the State’s argument as to

why the death penalty was the appropriate sentence for Van

Poyck as a non-triggerman defendant, since that same jury had

already found that he was the triggerman. That alone warrants

acceptance of the petition. or a summary remand. Still, it must

also be noted that even the State’s “he should get the death

penalty anyway” argument would be subject to serious

challenge in connection with any remand and new sentencing

proceeding. Mitigating DNA evidence would fully support Van

Poyck’s testimony that he was “stunned” by the killing of the

prison guard; that half of him wanted to leave immediately; and

that he wasn't thinking clearly except he knew he still needed

the keys to open the van to free his frend. RA 2588-89. DNA

evidence showing that Van Poyck was not the shooter would

also completely undermine the testimony of the surviving

4

prison guard that Van Poyck pointed the murder weapon at him

and pulled the trigger.

In any new sentencing hearing, that mitigating DNA

evidence would be coupled with the evidence that Van Poyck

has compiled since that time, including the “vast array of

mitigating circumstances” previously identified by the three

dissenters at Van Poyck v. State, 6 + So.2d 686, 700 (Fla. 1997)

(Anstead, J. dissenting), as well as subsequent testimony of

Turner at the trial of James O’Bricn, and a forensics expert at

Van Poyck’s post-conviction hearing demonstrating that

Turner’s version of events concerning Van Poyck’s alleged

attempt on his life was not credible.’

Finally, this Court’s recent decision in Brown v.

Sanders, 126 S. Ct 884 (January 11, 2006), which was handed

down after Van Poyck filed the initial petition in this Court

further reinforces the inherent unreliability of Van Poyck’s

death sentence. Van Poyck’s jury found him to be death

eligible in the first instance and then sentenced him to death

after finding the existence of a statutory “death eligibility

factor” (that he was guilty of first degree premeditated murder)

which was later specifically invalidated on direct appeal by the

Supreme Court of Florida. To date, no court has applied a

constitutional harmless error analysis to this unreliably rendered

death sentence nor has any court reweighed the mix of

aggravating circumstances against the totality of all of the

mitigating evidence.

? At James O'Brien’s trial months later, Turner testified that the chamber

of the weapon in Van Poyck’s hand was open. Forensic evidence at Van

Poyck’s post-conviction hearing has established that a gun cannot be fired

in such a circumstance and, in fact, is designed to inform the shooter ‘hat

it is empty. Post-conviction Transcript p. 322. This would have

bolstered Van Poyck’s testimony that he knew his gun was empty

because the slide had come back, and that he did not pull the tngger. RA

2599, 2602.

5

The State’s response, with its list of hypothetical factors

which the jury and judge could have considered in deciding to

ultimately sentence Van Poyck to death, had they not believed

him to be the triggerman, only serves to reinforce the

uncertainty and unreliability underlying this death sentence.

There is no need to keep guessing and hypothesizing about

whether Van Poyck would have been sentenced to death had his

jury known all of the true facts and circumstances surrounding

the crime. Rather, by the simple expediency of remanding for

DNA testing and a new penalty phase, all unceriainty can, and

under any principled constitutional analysis should, be

eliminated. Accord Deck v. Missouri, US. __, 125 S. Ct.

2007, 2014 (2005) (“the Court has stressed the ‘acute need’ for

reliable decision making when the death penalty is at issue’).

CONCLUSION

For the foregoing reasons, Van Poyck respectfully

reiterates his request that this Honorable Court grant his petition

for a writ of certiorari.

Submitted this 27th day of February, 2006.

Respectfully submitted,

Jeffrey O. Davis,

Counsel of Record

Laur A. Schumacher Rollings,

Counsel for Petitioner

Quarles & Brady LLP

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