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

8

Pearce was involved in the murder of a teenage boy and the

attempted murder of a second after the teenagers failed to

purchase drugs that Pearce ordered them to buy for him. After

holding the boys hostage, and forcing one of them to perform

oral sex on him, Pearce and three friends drove the two boys

to a remote location, where Pearce ordered one of the boys

out of the truck and ordered one of his friends to “break

[the boy’s] jaw’” or “‘pop him in the jaw... .’” Id. at 566.

Pearce’s accomplice instead shot the bey and announced

(though mistakenly) to Pearce that he had killed him. Pearce

then drove the truck another 200 yards and ordered the second

boy out of the car, at which point one of Pearce’s accomplices

shot and killed the second boy. Although he did not expressly

order his accomplice to kill the second boy, Pearce was the

instigator of a crime in which killing was an essential

component. In light of the murderous shooting of the first

boy just moments carlier, Pearce’s ordering the second boy

out of the truck could have been viewed by the jury as nothing

less than an order to kill.

No comparable evidence was presented to the jury in

Mr. Van Poyck’s case. Although Mr. Van Poyck and Valdes

were both heavily armed when they attempted to carry out

the escape, killing was in no way an essential component or

purpose of the plan, nor did the State present any evidence

cither that Mr. Van Poyck planned, or knew in advance that

Valdes intended, to kill anyone during the course of the

felony. Instead, the State relied entirely on inconclusive eye-

witness testimony that, as the Florida Supreme Court held

in Van Poyck I, was insufficient as a matter of law to prove

that Mr. Van Poyck was the triggerman. In short — with Mr.

Van Poyck’s conviction for premeditated murder having been

overturned, and no legitimate evidentiary proof in the record

that he actually killed anyone — Mr. Van Poyck’s death

9

sentence now stands alone as a disturbing exception among

Florida’s current death-row population.

In affirming the trial court’s denial of Mr. Van Poyck’s

request for DNA testing, the Florida Supreme Court ruled

out the possibility that the jury in Petitioner’s case would

have recommended a life sentence even if the jury had known

to a scientific certainty that — contrary to the State’s

contention at trial - Mr. Van Poyck was not the triggerman.

Van Poyck v. State, 908 So. 2d 326 (Fla. 2005) (“Van Poyck

IT’). The State has not dispt ed Petitioner’s contention that

the results of the requested DNA testing could conclusively

prove (by demonstrating the absence of the victim’s blood

from Mr. Van Poyck’s clothing) that Mr. Van Poyck did not

kill anyone; nor did the Florida Supreme Court question the

evidentiary significance of the requested DNA testing in this

regard. Instead, the Court simply declared, based on its own

sense of the record, that there was no “reasonable probability

that Van Poyck would have received a lesser sentence”

regardless of whether he actually fired the fatal shots.

Id. at 329.

In dismissing the importance of the DNA evidence

sought by Mr. Van Poyck, the court failed to cite any empirical

basis whatsoever for its factual conclusion. As discussed

above, however, the court’s supposition that Mr. Van Poyck’s

non-triggerman status would have made no difference clashes

directly with the evidence supplied by Florida’s actual death-

row population: namely, that Florida juries generally do not

recommend, and Florida trial courts do not impose, death

sentences on defendants who did not themselves either kill

or murderously direct or plan a killing. If triggenaan status

in felony murder cases were in fact inconsequential to

prosecutors who sought the death penalty and jurors who

10

recommended it, there surely would be more non-triggermen

on Florida’s death row.

Certainly, there can be no serious dispute that conclusive

scientific proof that Mr. Van Poyck did not himself kill

anyone would have constituted powerful mitigating evidence

in the jury’s sentencing deliberations. Cf. Zerquera v. State,

549 So. 2d. 189, 193 (Fla. 1989). Moreover, in addition to

the evidence cited above, other available empirical evidence

strongly supports the conclusion that jurors’ support for the

death penalty materially diminishes when the defendant is

proved to have been an indirect accomplice in the killing

that gave rise to a capital offense. See, e.g., Stephen P. Garvey,

Aggravation and Mitigation in Capital Cases: What Do

Jurors Think?, 98 Colum. L. Rev. 1538, 1566 (1998)

(“(S]upport for the death penalty in public opinion polls drops

from 70-76% when respondents are asked whether or not

they support the death penalty in the abstract to 25-29% when

they are asked whether they support the death penalty for a

defendant who was ‘[o]nly an accomplice to the killing.’”’).

The jury verdict form in Mr. Van Poyck’s case demonstrates

that as many as eleven jurors believed that Mr. Van Poyck

was the triggerman, and therefore may have relied on that

belief in deciding to recommend a death sentence.

See Petitioner’s Appendix at F-1. The Florida Supreme

Court’s failure to acknowledge the potentially decisive

importance of this belief in the jury’s ultimate sentencing

recommendation was arbitrary and capricious and cries out

for correction by this Court.

This failure was particularly egregious because definitive

DNA evidence exonerating Mr. Van Poyck of the triggerman

role would have essentially knocked out a key pillar of the

State’s penalty-phase argument to the jury. During the penalty

1]

phase hearing in Petitioner’s case, only Mr. Van Poyck’s own

self-interested testimony was offered to counter the State’s

contention that Mr. Van Poyck was in fact the triggerman.

The identity of the triggerman was the centerpiece of the

prosecutor’s argument for the death penalty: ‘So again, it is

important who the trigger man is. There is no doubt about it.

It’s important to your deliberations, okay.’” See Van Poyck

II, 908 So.2d at 331. As the dissenting opinion below

observed, “[T]here can be no doubt that the prosecution, in

seeking the death penalty asserted to the jury first, that it

- was important in their deliberations on the penalty to

determine who the triggerman was, and, second, in this case,

the evidence supported a determination that the defendant

was the triggerman.” /d. at 331 (Anstead, J., dissenting).

Further compounding this error was the court’s refusal

to consider the cumulative impact of such DNA evidence in

conjunction with the other extensive mitigating evidence that

Mr. Van Poyck’s trial counsel failed to discover and present

at his original penalty-phase hearing. The “reasonable

probability” test under Florida Rule of Criminal Procedure

3.853(c)(5)(C) is the same as that required to demonstrate

prejudice under Strickland v. Washington, 466 U.S. 668, 694

(1984), and should be construed as incorporating that

constitutional standard. Mr. Van Poyck’s initial collateral

attack on his sentence alleging constitutionally ineffective

assistance of penalty-phase counsel sharply divided the

Florida Supreme Court and came within a single vote of

prevailing. See Van Poyck v. State, 694 So. 2d 686 (Fla.

1997). This close decision was not based on counsel’s failure

5. Although a majority of the court held that Mr. Van Poyck’s

counsel was not ineffective for failing to obtain and present DNA

evidence at the guilt phase, see id. at 697, it made no such ruling

(Cont'd)

12

to obtain DNA evidence for the penalty phase, but rather

was the result of trial counsel’s “blatant lack of investigation

and preparation” in failing to discover and present an

abundance of mitigating evidence concerning Mr. Van

Poyck’s mental health and other personal history. The impact

of scientifically conclusive DNA evidence proving Mr. Van

Poyck’s innocence of actual killing must be weighed together

with the other severe deficiencies in the mitigation case that

were presented to the jury. In that context, there clearly exists

a “reasonable probability” that the addition of exculpatory

DNA evidence at the penalty phase would have led to a

sentence of life, not death. The Florida Supreme Court’s

analysis totally ignored that consideration.

In short, the Florida Supreme Court’s rejection of

Petitioner’s request for DNA testing was based on mere

arbitrary speculation at odds with what we know about capital

juries and sentences. In reality, there is a compelling basis to

believe that DNA evidence absolving Mr. Van Poyck of the

triggerman role could, and likely would, have dramatically

transformed the dynamics of the penalty phase hearing and

the jury’s sentencing deliberations in this case. Reversal of

the Florida Supreme Court’s arbitrary result is essential to

vindicate Mr. Van Poyck’s well-established constitutional

right to present fo a jury the substantial mitigating scientific

proof that he was not the triggerman, see, e.g., Lockett v.

Ohio, 438 U.S. 586 (1978); Hitchcock v. Dugart, 481 U.S.

(Cont'd)

with regard to the prejudicial impact of failing to introduce this

evidence at the penalty-phase. The tactical justification cited by the

court for counsel’s decision not to introduce DNA testing evidence

at the guilt phase had no application at the penalty phase, at which

DNA evidence demonstrating that Mr. Van Poyck was not the

triggerman could only have helped him in the eyes of the jury.

13

393 (1987), and to preserve the fundamental constitutional

requirement that the jury be allowed to “consider and give

effect to [Petitioner’s mitigating] evidence in imposing

sentence,” Penry v. Lynaugh, 492 U.S. 302, 319 (1989). The

Florida Supreme Court’s fundamental failure to properly

assess the potentially decisive impact of DNA-based proof

on Mr. Van Poyck’s sentence represents a constitutional error

that plainly warrants this Court’s review.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

P. BENJAMIN DUKE

CovincTon & BURLING

1330 Avenue of the Americas

New York, NY 10019

(212) 841-1000

Counsel for Amicus Curiae

APPENDIX

APPENDIX A:

FLORIDA DEATH ROW INMATES WITH FELONY MURDER CONVICTIONS

WHO PHYSICALLY CAUSED A VICTIM'S DEATH

| Toney

course of molesting her).

Florida Description Did the inmate

Death Row physically cause a

_Inmate victim's death?

Barwick, |Barwick v. State, 660 So.2d 685, 689 (Fla. 1995) (defendant fatally stabbed victim after raping her in the Yes

Darryl course of a robbery).

Bradley, |Bradley v. State, 787 So.2d 732, 735-36 (Fla. 2001) (defendant beat victim to death with a “war stick” in Yes

Donald the course of a burglary).

Branch, Branch v. State, 685 So.2d 1250, 1252 (Fla. 1997) (defendant beat, stomped, sexually assaulted and Yes

Eric strangled victim in the course of stealing her car).

Caballero, |Caballero v. State, 851 So.2d 655, 659 (Fla. 2003) (defendant “covered [the victim’s] mouth to muffle her Yes

Luis screams [and] pulled her head [while his accomplice] pulled [a] cord” around her neck to strangle her in

the course of robbing her).

Carroll, Carroll v. State, 815 So.2d 601, 607 (Fla. 2002) (defendant raped and fatally strangled a ten-year-old Yes

Elmer girl).

Clark, Clark v. State, 613 So.2d 412, 413 (Fla. 1993) (defendant shot victim “seven or eight times” in the course Yes

Ronald of an armed robbery).

Cummings- |Cummings-El v. State, 863 So.2d 246, 248 (Fla. 2003) (defendant fatally stabbed his ex-girlfriend in the Yes

El, F.W. —jcourse of an armed burglary).

Davis, Davis v. State, 703 So.2d 1055, 1056-57 (Fla. 1998) (defendant fatally injured a two-year-old girl in the Yes

I-V

Florida Description Did the inmate

Death Row physically cause a

Inmate victim’s death?

Doorbal, |Doorbal v. State, 837 So.2d 940, 949 & n.21 (Fla. 2003) (defendant killed one victim in the course of an Yes

Noel elaborate criminal enterprise through one of the following means, “an overdose of horse tranquilizer;

asphyxia for strangulation . . . ; or blunt force trauma to [the victim’s] skull”; defendant killed a second

victim by repeatedly injecting her with horse tranquilizer).

Farr, Farr v. State, 62\ So.2d 1368, 1369 (during an attempted kidnapping, defendant crashed the victim’s car Yes

Victor into a tree, thereby killing her ).

Fennie, Fennie v. State, 855 So.2d 597, 600 (Fla. 2003) (defendant fatally shot victim in the back of her head in Yes

Alfred the course of an armed robbery and kidnapping).

RRNA it it

Floyd, Floyd v. State, 850 So. 2d 383, 387-89, 401-02 (Fla. 2003) (defendant was convicted of fatally shooting Yes

Maurice his mother-in-law during the course of a robbery; the Florida Supreme Court reversed his convictions for

felony murder and robbery, finding that the jury charge was insufficient to support the robbery conviction,

but affirmed defendant’s death sentence based on his first-degree premeditated | murder conviction).

Garcia, Garcia v. State, 644 So.2d 59, 60-62 (Fla. 1994) (defendant stabbed two elderly sisters while burglarizing Yes

Henry their home).

Gaskin, Gaskin v. State, 591 So. 2d 917, 918 (Fla. 199}) (defendant fatally shot a husband and wife in the course Yes

Louis of burglarizing their home).

Geralds, Geralds v. State, 601 So.2d 1157, 1158 (Fla. 1992) (defendant beat and stabbed victim to death in the Yes

Mark \course of burglarizing her home).

Gorby, Gorby v. State, 819 So.2d 664, 671 (Fla. 2002) (defendant Te beat in victim’s head in the course of a Yes

Olen burglary).

,

——

—_—_—_—

Description

Florida Did the inmate

Death Row physically cause a

| Inmate | ; victim’s death?

Gore, Gore v. State, 784 So.2d 418, 423, 427 (Fla. 2001) (defendant fatally stabbed and strangled victim in the Yes

Marshall _jcourse of an armed robbery).

Green, Green v. State, 64\ So.2d 391, 393 (Fla. 1994) (defendant fatally shot victim in the course of armed Yes

Crosley robbery and kidnapping).

Griffin, Griffin v. State, 639 So.2d 966, 967 (Fla. 1994) (defendant fatally shot a pursuing police officer after Yes

Michael _| burglarizing a hotel room). “Gite

Hartley, Hartley v. State, 686 So.2d 1316, 1318-19 (Fla. 1996) (defendant “left [his] trade mark” by shooting the Yes

Kenneth victim in the head in the course of an armed robbery).

Hendrix, |Hendrix v. State, 908 So.2d 413, 416 (Fla. 2005) (defendant fatally “shot, bludgeoned, and stabbed” his Yes

Robert former accomplice and his former accomplice’s wife after an armed burglary to prevent them from

testifying against him).

Hunter, Hunter v. State, 817 So.2d 786, 789 (Fla. 2002) (defendant fatally shot three men “in turn” in the course Yes

James of an armed robbery).

Hurst, Hurst v. State, 819 So.2d 689, 692-93 (r'la. 2002) (defendant stabbed victim to death in the course of Yes

Timothy __|robbing a restaurant).

£-V

Florida Description Did the inmate

Death Row physically cause a

Inmate victim’s death?

James, James v. State, 695 So.2d 1229, 1230-31 (Fla. 1997) (defendant raped and strangled an eight-year-old girl Yes

Edward and immediately thereafter raped and stabbed her grandmother).

Jones, Appeliant’s Initial Br., Jones v. State, 2005 WL 3451308 at *4-6 (Fla. Nov. 2005) (an eyewitness testified Yes'

Christopher |that defendant hit the victim in the head with a gun and then shot the victim in the chest in the course of a

robbery).

Jones, Jones v. State, 748 So.2d 1012, 1016 (Fila. 2000) (defendant strangled victim to death in the course of a Yes

David robbery and kidnapping).

Knight, Knight v. State, 770 So.2d 663, 664 (Fla. 2000) (defendant fatally shot victim in the course of a Yes

Ronald kidnapping).

Kopsho, _|Appellant’s Initial Br., Kopsho v. State, 2005 WL 3626062 at *8 (Fla. Nov. 14, 2005) (defendant fatally Yes”

William _|shot his wife while attempting to kidnap her).

Kormondy, |Kormondy v. State, 845 So.2d 41, 45 (Fla. 2003) (defendant fatally shot victim in the head in the course of Yes

Johnny an armed burglary). ze

Lukehart, |Lukehart v. State, 776 So.2d 906, 930-11, 922 (Fla. 2001) (defendant fatally hit infant in the head in the Yes

Andrew _|course of committing aggravated child abuse). oe

-—-

Case is still subject to direct review by the Florida Supreme Court.

Case is still subject to direct review by the Florida Supreme Court.

rv

Florida Ree Description Did the inmate

Death Row : physically cause a

Inmate e _ victim’s death?

Mahn, Mahn v. State, 714 So.2d 391. 393-94 (Fla. 1998) (defendant stabbed his father’s live-in girlfriend and her Yes

Jason son to death in the course of an armed robbery).

Marshall, {Marshall v. State, 604 So. 2d 799, 802 (Fla. 1992) (defendant beat a fellow inmate to death while Yes

Matthew _jattempting to collect gambling winnings).

Melton, Melton v. State, 638 So.2d 927, 929 (Fla. 1994) (defendant “fired the fatal shot” in the course of robbing a Yes

Antonio pawn shop).

Mendoza, (Mendoza v. State, 700 So.2d 670, 672 (Fla. 1997) (defendant fatally shot victim in the course of an Yes

Marbel attempted robbery).

Miller, Miller v. State, 770 So.2d 1144, 1146-47 (Fla. 2000) (defendant beat a homeless man to death with a pipe Yes

David in the course of an attempted robbery).

Morrison, |Morrison v. State, 8\8 So.2d 432, 437-39 (Fla. 2002) (defendant fatally stabbed victim in the course of an Yes

Raymond jarmed robbery).

Nelson, Nelson v. State, 850 So.2d 514, 518 (Fla. 2003) (defendant, in the course of kidnapping, robbing, and Yes

Micah sexually assaulting the victirn, killed the victim by “attempt[ing] to strangle her with his bare hands,

empt{ ying] the contents of a fire extinguisher into her mouth, and forc[ing] a tire iron into her mouth and

through the back of her head”).

Orme, Orme v. State, 896 So.2d 725, 729 (Fla. 2005) (defendant strangled victim to death in the course of raping Yes

Roderick {and robbing her).

Pardo, Pardo v. State, 563 So.2d 77, 78 & n.i (Fla. 1990) (defendant “intentionally killed” nine victims in five Yes

Manuel separate episodes “for pecuniary gain’).

$-V

Frank

7 burglarizing their home).

Florida Description Did the inmate

Death Row physically cause a

Inmate victim’s death?

Reese, Reese v. State, 694 So.2d 678, 680 (Fla. 1997) (defendant strangled victim to death in course of a sexual Yes

John battery and burglary).

Rodriguez, |Rodriguez v. State, --- So.2d ----, 2006 WL 1243475 at *1 (Fla. Jan 19, 2006) (defendant fatally shot Yes

Juan victim four times in the course of a robbery).

Rodriguez, |Rodriguez v. State, 753 So.2d 29, 34 (Fla. 2000) (defendant fatally shot two victims in the course of an Yes

Manolo armed robbery).

Rogers, Rogers v. State, 783 So.2d 980, 985-86 (Fla. 2001) (defendant stabbed victim to death in the course of an Yes

Glen armed robbery).

Sims, Sims v. State, 681 So.2d 1112, 1113 (Fla. 1996) (defendant fatally shot a police officer in the course of an Yes

Merit armed robbery).

Suggs, Suggs v. State, 644 So.2d 64, 65-66 (Fla. 1994) (defendant stabbed victim to death in the course of a Yes

Emest kidnapping).

Taylor, Taylor v. State, 583 So.2d 323, 325 & n.2 (Fla. 1994) (defendant beat and choked victim to death “in the Yes

Perry commission of a sexual battery”).

Trease, Trease v. State, 768 So.2d 1050, 1052 (Fla. 2000) (defendant fatally slit victim’s throat in the course of an Yes

Robert armed robbery).

Walls, Walls v. State, 64) So.2d 381, 385 (Fla. 1994) (defendant fatally shot two victims in the course of Yes

Florida Description Did the inmate

Death Row physically cause a

Inmate | victim's death?

Watson, Watson v. State, 651 So.2d 1159, 1160 (Fla. 1995) (defendant fatally stabbed victim in the course of an Yes

Kenneth __|armed burglary).

Whitton, | Whitton v. State, 649 So.2d 861, 863-64 (Fla. 1995) (defendant fatally stabbed victim in the course of a Yes

Gary robbery).

Willacy, | Willacy v. State, 696 So.2d 693, 694-95 (Fla. 1997) (defendant “doused [his} victim with gasoline and set Yes

Chadwick her on fire” “in the course of a robbery, arson, and burglary”).

Zack, Zack v. State, 911 So.2d 1190, 1195-96 (Fla. 2005) (defendant stabbed victim to death in the course of a Yes

Michael “nine-day crime spree” that included robbery and sexual battery).

Zakrzewski,|Zakrzewski v. State, 866 So.2d 688, 690 (Fla. 2004) (defendant pled guilty to strangling his wife and Yes

Edwards __jkilling their two children with a machete).

L-V

APPENDIX B:

FLORIDA DEATH ROW INMATES WITH FELONY MURDER CONVICTIONS

WHO MAY NOT HAVE PHYSICALLY CAUSED A VICTIM'S DEATH

Florida Description Did the inmate If no, was the

Death Kow ; physically cause a | inmate’s intention to

Inmate sisi victim’s death? | kill premeditated?

Alston, Alston v. State, 723 So.2d 148, 152-53 (Fla. 1998) (after defendant and his Possibly Yes

Pressley half-brother took their victim, James Lee Coon, to the woods at gunpoint, the

defendant “‘shot [Coon] twice in the head””; defendant’s half-brother also shot

Coon after defendant told him “that ‘the boy wil! have to be dealt with,

meaning killf[ed],’ because [Coon] could identify them”).

Chamberlain, | Chamberlin v. State, 881 So.2d 1087, 1093 (Fla. 2004) (in the course of a No Yes

John robbery and three homicides, defendant “said ‘no more witnesses and

encouraged [his accomplice] to kill [Bryan] Harrison”; unsure whether their

victims were dead, defendant subsequently “retrieved morc bullets, and

reloaded the gun,” so that his accomplice could “again ‘empt[y] the gun’ into

Harrison and [Harrison’s girlfriend]’’).

Henyard, Henyard v. State, 689 So.2d 239, 242-43 (Fla. 1996) (defendant and an Possibly Yes

Richard accomplice fatally shot two young girls after defendant raped and repeatedly

shot their mother in the course of stealing their car; prior to his crime,

defendant stated that he intended to “steal a car, kill the owner, and put the

victim in the trunk”).

i-d

Florida Description Did the inmate If no, was the

Death Row physically cause a | inmate’s intention to

Inmate victim’s death? kill premeditated?

Krawczuk, Krawczuk v. State, 634 So.2d 1070, 1071 (Fla. 1994) (although it is not clear Possibly Yes

Anton whether it was defendant or his accomplice who more directly caused the death

of David Staker, the record reflects that a “week before the murder, the pair

decided to rob and kill Staker” and that defendant choked Staker and “twice

poured drain cleaner and water into Staker’s mouth”).

J awrence, Lawrence v. State, 831 So.2d 121, 124-25 (Fla. 2002) (in the course of a No Yes

Gary robbery, defendant beat the victim, Michael Finken, with a pipe “until it bent”

and then a baseball bat; although it appears that defendant's wife may have

delivered the fatal blow with a knife, defendant told his stepdaughter prior to

beating Finken that he and his wife intended to “knock off Mike”).

Lugo, Lugo v. State, 845 So.2d 74, 88, 114 (Fla. 2003) (in the course of an elaborate No Yes

Daniel criminal enterprise, defendant injected one of his victims, Krisztina Furton,

with horse tranquilizer and ordered his accomplice to continue to inject Furton

with tranquilizer, thereby causing her death; the trial court found that the

defendant “had a cold, calculated, and premeditated plan to kill [his} victims

and dispose of their bodies”).

io z — a

Pearce, Pearce v. State, 880 So.2d 561, 565-67 (Fla. 2004) (defendant and his No No

Faunce accomplices kidnapped two boys and drove them to a remote location;

defendant ordered one boy out of the car, and one of defendant's accomplices

shot the boy in the head; defendant drove the car another 200 yards and

ordered the second boy out of the car, and the same accomplice shot the second |

boy in the head; the trial court found that defendant's crime was “cold,

calculated, and premeditated”).

ong

cl

Florida Description Did the inmate If no, was the )

Death Row physicatly cause a | inmate’s intention to

Inmate victim’s death? kill premeditated?

Stein, Stein y. State, 632 So.2d 1361, 1363 (Fla. 1994) (prior to shooting two Pizza Possibly Yes

Steven Hut employees to death in the course of robbing the restaurant, defendant and

his accomplice agreed “that there could be no witnesses to the robbery”).

Williams, Williams-v. State, 622 So.2d 456, 459 (Fla. 1993) (defendant, who ran a drug No Yes

Ronald trafficking ring in Miami, ordered his accomplices “to ‘drop’ whoever was

involved with the theft of his money and drugs”).

t-d