Opposition Brief — Herring v. Florida

Supreme Gourt, U.&

3°

MAY 14 1999

No. 98-1493 ;

sf CLERK

reenact

IN THE i

SUPREME COURT OF THE UNITED STATES

October Term, 1998

TED HERRING, Petitioner,

Vv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF OF RESPONDENT IN OPPOSITION

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

KENNETH S. NUNNELLEY

ASSISTANT ATTORNEY GENERAL

444 Seabreeze Blvd. 5th FL

Daytona Beach, FL 32118

(904) 238-4990

COUNSEL FOR RESPONDENT

tr me a

QUESTIONS PRESENTED

Herring states the Questions Presented in the following

way:

1, Whether the Florida Supreme Court -- in conflict

with the United States Court of Appeals for the Second, Third,

Fourth, and District of Columbia Circuits -- erred in excluding

evidence of trial performance in determining whether a death

penalty defendant's attorney "actively represented conflicting

interests” within the meaning of this Court's decision in Cuyler

v. Sullivan, 446 U.S. 335, 350 (1980).

2. Whether the Florida Supreme Court correctly held --

in direct conflict with this Court's decisions in Clemons v.

Mississippi, 494 U.S. 738 (1990) and Sochor v. Florida, 504

U.S. 527 (1992) -- that it could vacate an aggravating

circumstance and impose the death penalty without either

reweighing or conducting a harmless error analysis.

Respondent restates the Questions Presented in the

following way:

1. Whether this Court should exercise its certiorari

jurisdiction to review the decision of the Florida Supreme Court

when that decision does not conflict with the decision of any

Federal court, when the issue was correctly decided by the

State Court, and when the issue contained in the petition

presents only factual questions which are inappropriate for

certiorari review?

2. Whether this Court should exercise its certiorari

jurisdiction to review an issue that has never been presented to

the State Courts, that is untimely raised, and is not of sufficient

importance to justify certiorari review?

TABLE OF CONTENTS

CHURG TMIrGs FRE Oe se 0 Vee de he i

TABLE UP CORNERED oe oid eos beg ee Ve ee ee ii

TABLE OF AUTEUIRAEIOS nods oe eee iil

SURE AEE bl heb oa 6s peewee Deere l

CONSTITUTIONAL PROVISIONS INVOLVED 2

STATEMENT OF THE CASE oes es es bee a 2

COLLAT. "RAL ATTACK PROCEEDINGS ........ 7

REASONS WHY THE WRIT SHOULD BE DENIED .. 9

|. THE CONPLICT OF INTEREST ISSUE. 0. ec es 9

Il. THE AGGRAVATING CIRCUMSTANCE ISSUE . 15

CONCLUSION | 6-65 oe os eee OE Newer ee 19

APPENDIX

Argument I of Initial Brief on 3.850 Appeal ..... A-1-16

Herring v. State, 501 So.2d 1279 (Fla. 1986) .... A-17-20

il

a ed

er

CASES

Allen v. McCurry,

I os ak on bb nid Cc we oe etd 17

Beck v. Washington,

Rn Mg nd bak ee es bes 17

Cardinale v. Louisiana,

OED klk Sees cies earcr 17

Clemons v. Mississippi,

UY I gs ei bb a ees i, 17

Cox Broadcasting Corp. v. Cox,

ETS! 1) SRS Re ree eer Ne a aE Ra 18

Cuyler v. Sullivan,

ON Rit RD oe in kk ek wk cs i, 9, 10, 13, 14

Eutzy v. State,

re me RO CE PMN) es Se is eek 15

Government of Virgin Islands v. Zepp,

ee ee ee Ce as Ee) se ie ak KS ee 14

Grayson v. Harris,

I kk Sc ns x nee & ha we 8 ore 15

Hanson v. Denckla,

te 17

lil

Harich v. State,

51D ae SRP AE Es SHO eee ew ke ee aaa 8

Herring v. Florida,

GOP UD: SRP TAO) kee eh int eres 6

Herring v. State,

446 50,26 1089 Wis. 1964) os sae PERE, 7, 16

Herring v. State,

S01 So.20 Sa 7e Gh: TOG, oc se CCS A 7,8

Herring v. State, |

SR S20 890 GR Bere): kos oS eR RG 7, 9, 18

Hill v. State,

515 So.2d 176 (Fla. 1987), :

cert. denied, 485 U.S. 993, :

106 S02, 3oGd, 99 b..B. 26 Siz (I9Se) no he 17

Knight v. State,

FI4 SO AG Ft Lr AOE) 8 oe ke ON Chee 8

Radio Station WOW v. Johnson, P

SP Sis Ca CE a eR RA eee 17, 18 i

Rice v. Sioux City Cemetery,

SOO ATs FARE eK Se ER ee ER 15, 18

Reece v. Georgia,

SO Tis ek ci hi ae a ee 18

Rogers v. State,

544 S020 Doe (ree. WOOD oo 6s heen 7,9, 15, 16

Sochor v. Florida,

ee Reiter ee ee a eae i, 17

Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052,

Oe Sct PO CA as 6 Wii es be eee en 7,8

Strouse v. Leonardo,

Cee aed eer Ce ek 1 es we a oe eS 14

Teffeteller v. Dugger,

Pre ae Oe CE. BOWS oo ok kf EK i ee 8

United States ex rel. Duncan vy. O'Leary,

ee Was SOF CP Gs BY 6 ca kG bow 14

United States v. Johnston,

eee Ries eet Ce ee 6 a CER oe ee 15

United States v. Tatum,

DAS: Fae Pal Ge BOR he nS ee ie dK Oe ERG 14

United States v. Taylor,

L Je Se SOI Sel SE Sh a a eee eS 14

OTHER AUTHORITIES

BO Mittal BAPE i a a en Ra ee as ee l

Git IRB os es ae

No. 98-1493

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

TED HERRING, Petitioner,

Vv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

The Respondent State of Florida respectfully requests

that this Court deny the petition for writ of certiorari, seeking

review of the Florida Supreme Court's May 2, 1991, and

September 24, 1998 opinions denying Herring's various

motions for post-conviction relief. Those opinions appear in

Herring’s Appendix at A-35 and A-24, respectively.

LURISDICTION

Herring asserts that jurisdiction exists pursuant to 28

U.S.C. § 1257, and states that he seeks certiorari "to review

two decisions of the Florida Supreme Court pursuant to this

Court's Rule 12.4." Petition, at 2. Those decisions were

entered more than seven years apart, and the State of Florida

does not concede that the petition is timely with respect to the

May 2, 1991, judgment. Moreover, that judgment does not

involve "identical or closely related questions” with respect to

l

the September 24, 1998, judgment as required by Supreme

Court Rule 12.4 for the presentation of a single petition for writ

of certiorari respecting multiple judgments.

The petition for certiorari with respect to the September

24, 1998, decision of the Florida Supreme Court appears to be

timely filed.

CONSTITUTIONAL PROVISIONS INVOLVED

Herring asserts that the Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution are involved in

the issues contained in this petition.

STATEMENT OF THE CASE

The "Statement of the Case" set out at pages 2-10 of

Herring's petition is argumentative, and, for that reason, is not

accepted by the Respondent State of Florida. The State relies

upon the following statement of the case, which is based upon

the facts found by the Florida Supreme Court in connection

with its disposition of the various matters Herring has brought

before that Court.

The Direct Appeal Facts

On direct appeal to the Florida Supreme Court, that

Court summarized the facts giving rise to Herring's conviction

and death sentence in the following way:

Shortly after 3:00 a.m. on May 29, 1981, a

customer entered a Daytona Beach convenience

store and found the store clerk dead. The clerk's

body was lying on the floor behind the cash

register counter. The customer and a newspaper

distribution man who had arrived at the store

called the police. In investigating the crime

scene, the police found a note on the counter

which read:

This is a hole-up put all the

money in a papper bag change to

then lay flat on the floor are get

shot [sic].

A medicai examiner testified that the store clerk

suffered three gunshot wounds: (1) a wound to

the left side of the head just forward of the left

ear; (2) a wound to the left side of the neck; and

(3) a wound to the palm of the left hand with an

exit wound on the back side of the hand. The

examiner also testified that the wound which

caused the clerk's death was the wound to the

head and that the clerk survived for no longer

than a minute. It was determined that $23.34

was missing from the cash register.

Approximately two weeks after the

robbery-murder, Herring was arrested after he

was observed entering and exiting a vehicle

which had been stolen in another convenience

store robbery. He was taken to the Daytona

Beach Police Department, where he was advised

of his Miranda rights. Herring signed a written

waiver of his Miranda rights and was

interrogated by detectives. During the course of

the interrogation, he was asked about several

armed robberies, including the May 29

convenience store robbery-murder. A judgment

of guilty in one of these other armed robberies

was entered against appellant on January 8,

1982. Appellant, in his first statement, which

was taped, told the detectives that he planned to

rob the convenience store and prepared a holdup

note which directed the clerk to turn over money

or be shot. He claimed that when he proceeded

to the counter, a second man came to the

counter, pulled a gun, demanded money from

the clerk, and then, after he was given the

money, told the clerk to lie on the floor. As this

occurred, Herring stated, he backed down the

aisle of the store seeking cover and, while he

was doing so, the other man shot the clerk twice

and left the store. He stated he then ran from the

store.

One of the investigating officers testified that

after making this statement Herring asked to

speak to the officer privately; that during this

private conversation, Herring admitted that he

killed the clerk and that his previous story was

untrue. The officer also testified that during this

conversation Herring said that he shot the clerk

a second time to prevent him from being a

witness against him. At trial, Herring denied

that this conversation occurred.

Later in the interrogation, Herring made a third

statement, which was taped. In this statement

Herring confessed that he went to the

convenience store with a gun, asked the clerk

for cigarettes, and presented the holdup note.

According to Herring, the clerk made a

movement as if he were going to grab for the

gun. Herring admitted that he then shot the clerk

we eesemenanen est

hee EAE AMEE RD e

once in the head and once again after the clerk

fell to the floor.

Herring testified that this third statement was

given only because the police were harassing

him. He admitted writing the holdup note,

however, and one of the fingerprints on the note

was identified as the appellant's.

At the conclusion of the guilt phase of the trial,

the jury found appellant guilty of armed robbery

and first-degree murder.

In the penalty phase of the trial, the state put

into evidence a certified copy of the judgment

and sentence for the prior unrelated robbery

with a firearm, which judgment was entered on

January 8, 1982. The state also presented the

testimony of a probation and parole officer who

had spoken to Herring in June, 1981,

concerning the murder. She testified that

Herring denied committing the murder but that

he also commented that the man "got what he

deserved for trying to play hero" and that the

victim's death meant "one less cracker."

Appellant's mother testified on his behalf and

stated that she and the appellant's father were

divorced when the appellant was four years of

age; that the appellant was treated for

psychological problems and was diagnosed as

hyperactive with learning disabilities; and that

the appellant, who dropped out of school after

completing the fifth grade, has an [Q of eighty.

The appellant also attempted to present the

ONT EN Se Te ee aD

testimony of three attorneys who had

represented persons charged with first-degree

murder who received life sentences after

pleading guilty. This testimony was rejected by

the trial court. The trial court also rejected the

proffer of two poems authored by the appellant

which were contained in a clinical report written

about him. No testimony was _ proffered )

concerning the report, nor was the person who

prepared the report called to testify.

By an eight-to-four vote the jury recommended

the imposition of the death penalty. The trial

judge imposed the death penalty, finding four

aggravating and two mitigating circumstances.

The aggravating circumstances found by the trial

judge were: (1) that appellant had previously

been convicted of a robbery with a firearm, a

felony involving the use or threat of violence to

a person; (2) that the murder was committed

while appellant was engaged in the commission

of a robbery; (3) that the murder was committed

for the purpose of avoiding or preventing a

lawful arrest; and (4) that the murder was

committed in a cold, calculated, and

premeditated manner without any pretense of

moral or legal justification. In mitigation, the

trial judge found (1) that the appellant had a

difficult childhood and had learning disabilities,

and (2) that he was nineteen years old at the

time of the crime.

Pet. App., at 10-13. This Court denied certiorari on November

11, 1984. Herring v. Florida, 469 U.S. 989 (1984).

ne ee

The Collateral Attack Proceedings

In its 1998 decision, the Florida Supreme Court

summarized the collateral attack history of Herring's case as

follows:

This Court affirmed Herring's convictions and

death sentence in Herring v. State, 446 So.2d

1049 (Fla. 1984), but subsequently struck down

the application of the CCP aggravator. Rogers v.

State, 511 So.2d 526, 533 (Fla. 1987). We

rejected a motion to vacate Herring's death

sentence that was predicated on our decision to

recede from the application of the CCP

aggravator. Herring v. State, 580 So.2d 135

(Fla. 1991).

In his first rule 3.850 motion, Herring raised an

ineffective-assistance-of-counsel claim based on

deficient performance pursuant to Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). The trial judge denied the

motion and we affirmed. Herring v. State, 501

So.2d 1279 (Fla. 1986). (FN1) Herring filed a

second rule 3.850 motion and claimed, among

other things, that he received ineffective

assistance of counsel due to a conflict of interest

between Pearl's status as a special deputy sheriff

and Pearl's responsibilities owed to Herring.

(FN2) The trial judge denied the motion, but

this Court remanded the ineffectiveness issue for

an evidentiary hearing. Herring v. State, 580

So.2d 135 (Fla. 1991). Herring's hearing was

consolidated with the hearings of eight other

defendants who had raised similar "Howard

Pearl claims.” (FN3) The judge held that none

of the defendants were adversely affected by

Pearl's special deputy status. However, in

Teffeteller v. Dugger (Herring v. State), 676

So.2d 369 (Fla. 1996), this Court remanded

four of the cases, including Herring's case, for

individual evidentiary hearings solely on Pearl's

Status as a special deputy sheriff. As directed by

this Court, a second evidentiary hearing was

held, and Herring's motion was again denied.

FN1. Of the denial of Herring's

first rule 3.850 motion, we

wrote, "The trial judge, in an

extensive order, fully explained

why each of the

ineffective-assistance-of-counsel

claims did not meet the test set

forth in Strickland v.

Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674

(1984), and Knight v. State, 394

So.2d 997 (Fla. 1981). We fully

agree with the trial judge's

findings and commend him for

his detailed = explanation."

Herring, 501 So.2d at 1280.

FN2. In a separate case we held

that Pearl's special deputy sheriff

Status was not a per se conflict of

interest. Harich v. State, 573

So.2d 303 (Fla. 1990).

FN3. The other defendants were

Robert Teffeteller, Kenneth

Quince, Robert Henderson,

Gerald Stano, Joel Wright,

Johnny Robinson, Felix Castro,

and Richard Randolph.

Pet. App., at A-36-37.'

REASONS FOR DENYING THE WRIT

1. THE CONFLICT OF INTEREST ISSUE

The first question contained within the petition concerns

Herring's claim that the decision of the Florida Supreme Court

on the conflict of interest claim "directly conflicts with

decisions of numerous other courts and demonstrates

uncertainty in the lower courts in the application of Cuyler v.

Sullivan". Petition, at 13. For the reasons set out below, the

Herring also filed a federal habeas corpus petition. The Florida

Supreme Court described that litigation as follows:

In 1988, Herring filed a petition for writ of habeas corpus

in the United States District Court for the Middle District

of Florida. In his petition, Herring asserted that this Court's

decision in Rogers required vacation of Herring's death

sentence. Herring claimed that, since Rogers expressly

overrules the application of the cold, calculated, and

premeditated aggravating circumstance in our decision in

Herring I, he is entitled to a new sentencing hearing. The

state moved to dismiss Herring's petition because this issue

had not been heard by a state court. Herring consented to

the state's motion and filed the present motion under rule

3.850, asserting that our decision in Rogers was a change

in the law.

Pet. App., at A-27.

opinion of the Florida Supreme Court is a correct application

of this Court's Cuyler decision, does not conflict with any other

decision, and does not present an appropriate case for the

exercise of this Court's certioriari jurisdiction.

The State trial court conducted an evidentiary hearing

on the conflict of interest issue, and made the following

findings of fact:

Howard Pearl applied to become a special

deputy sheriff in Marion County in 1970. He

sought to obtain this status in order to have the

authority to carry a concealed firearm

throughout the State of Florida "for protection

of self and family." * The sheriff of Marion

County in 1970, Doug Willis, apparently

granted Mr. Pearl the status of special deputy

sheriff for the purposes of carrying a concealed

firearm.... Sheriff Moreland testified that he

continued Mr. Pearl's status as a professional

courtesy and that this was a common practice at

that time to continue the status of prominent

members of the community.

Although Mr. Pearl was required to maintain

liability insurance by the Marion County

Sheriff's Department through the Florida

Sheriff's Self-Insurance Fund, he had no

criminal law enforcement authority or duties and

was considered as an unpaid medium hazard

special deputy sheriff...

Despite the fact that Mr. Pearl's identification

card issued by the Marion County Sheriff's

Department stated that he was "a regularly

10

constituted deputy sheriff," this Court finds that

the testimony of Mr. Pearl and Sheriff

Moreland, at the evidentiary hearing, clearly

shows that Mr. Pearl's status was an honorary

appointment. Specifically, Mr. Pearl (1) was

never certified as a law enforcement officer; (2)

never received any compensation from or

executed any employee tax forms from the

Marion County Sheriff's Department; (3)

received no law enforcement training from the

Marion County Sheriff's Department; (4) was

never issued a uniform, vehicle or any other

equipment from the Marion County Sheriff's

Department; (5) never made and [was] never

given the authority to make any arrests, stops or

any other duties as a deputy sheriff of the

Marion County Sheriff's Department; (6) never

reported to any roll calls at the Marion County

Sheriff's Department; (7) was never on a duty

roster for the Marion County Sheriff's

Department; (8) was never copied on any

internal memoranda from the Marion County

Sheriff's Department, other than insurance

renewal notices; (9) never was asked to act in

any way for the Marion County Sheriff's

Department; and (10) never held himself out as

a regularly constituted deputy sheriff of the

Marion County Sheriff's Department. In fact,

Sheriff Moreland testified that Mr. Pearl's status

was "honorary" in nature and was solely for the

purposes of Mr. Pearl being able to carry a

concealed firearm.

In addition, James P. Gibson, the Public

Defender for the Seventh Judicial Circuit at

11

present and at the time of Mr. Pearl's

representation of the Defendant, testified that he

knew of Mr. Pearl's status as a special deputy

sheriff and that status was honorary and only for

the purpose of carrying a concealed firearm....

Further, Mr. Gibson testified that Mr. Pearl

never failed to act responsibly to his clients due

to this status and that he never questioned Mr.

Pearl's integrity or ability in representing clients

because of this special deputy status.

Accordingly, this Court finds as a matter of fact

that Mr. Pearl never was and never has been a

law enforcement officer of the Marion County

Sheriff's Department. Essentially, Mr. Pearl

was granted a concealed firearms permit by the

Marion County Sheriff's Department in the

Same manner that many other individuals

received during that time period. Contrary to

defense counsels’ assertions, this Court

determines that Mr. Pearl had no actual or

apparent authority to act as "a regularly

constituted deputy sheriff" for the Marion

County Sheriff's Department because at no time

did he indicate to anyone that he possessed

anything other than a "gun toter's permit" as a

result of his special deputy status.

Defense counsel interpreted Mr. Pearl's alleged

ineffective cross-examinations and alleged

bolstering of law enforcement officers as the

adverse effect of his conflict of interest.

However, defense counsel presented no

12

RNR DCE Taree NN Tetouan ern |

evidence or testimony that demonstrated that

Mr. Pearl was actively representing conflicting

interests. Therefore, this Court finds that the

Defendant and his counsel failed to demonstrate

that any actual conflict of interest existed

between Mr. Pearl and the Defendant resulting

from Mr. Pearl's special deputy status.

*At the time Mr. Pearl sought to

Carry a concealed firearm there

were no provisions for the

sanctioning of private individuals

to carry concealed weapons

throughout the State of Florida.

Pet. App. A-39-42. The Florida Supreme Court quoted those

facts in its opinion, and affirmed the denial of relief. Pet. App.

A-42-43. That detailed discussion of the facts and the

applicable law clearly demonstrates that the Florida Supreme

Court decided this issue in accord with Cuyler v. Sullivan.

Because the issue was correctly decided by the State Court,

there is no basis for certiorari review.

Herring's Petition implies that the Florida Supreme

Court did not consider the "performance" of his trial attorney

in decided the conflict issue, and tacitly suggests that such

performance has never been considered by any state court. The

true facts are that Herring has already lost on his claims of

ineffective assistance of counsel, and received the proceeding

under review herein only because of the peculiar circumstances

of his conflict of interest claim. App. at A-17-20.

Herring identifies four cases which, according to him,

conflict with the decision of the Florida Supreme Court. When

those decisions are considered in their entirety, instead of being

13

read out-of-context, they stand for the wholly unremarkable

proposition that Cuyler v. Sullivan requires a defendant seeking

relief based upon an alleged conflict of interest to "establish

that an actual conflict of interest adversely affected his lawyer's

performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).

That is a two-part standard, and none of the "conflicting" cases

relied upon by Herring allow the defendant to escape the

burden of proving not only an actual conflict, but also an

"adverse effect" as a result thereof. For example, United States

ex rel. Duncan v. O'Leary, 806 F.2d 1307, 1315 (7th Cir.

1986), decided the actual conflict component first, and then

decided the "adverse effect" issue. That disposition is in accord

with the Florida Supreme Court's decision in this case -- that

Court found that there was no actual conflict and that there was

therefore no need to address the adverse effect component of

Cuyler. Likewise, United States v. Tatum’, United States v.

Taylor, Strouse v. Leonardo*, and Government of Virgin

Islands v. Zepp* do not stand for the proposition advanced by

Herring. Those cases recognize that Cuyler established a two-

part test, and that the defendant must meet both components

before he is entitled to relief. None of the cases relied upon by

Herring to establish a conflict of decisions compels a result

other than the one reached by the Florida Supreme Court.

There is no conflict between the Florida Supreme Court and

any of the Federal Appeals Courts, and there is no basis for the

exercise of this Court's certiorari jurisdiction. Herring's

petition should be denied.

saieniiieeteieenneianetieees oe

? 943 F.2d 370 (4th Cir. 1991).

* 139 F.3d 924 (D.C. Cir. 1998). m

* 928 F.2d 548 (2d Cir. 1991).

* 748 F.2d 125 (3d Cir. 1984).

14

_—

This Court should also decline to exercise its certiorari

jurisdiction in this case because the only issue presented is a

question of fact which is inappropriate for certiorari review.

Rice v. Sioux City Cemetery, 349 U.S. 70, 79 (1955); Grayson

v. Harris, 267 U.S. 352, 358 (1925). In order to decide this

case, this Court would be compelled to review the evidence and

discuss specific facts. Under long-standing law, that is not the

function of certiorari review. United States v. Johnston, 268

U.S. 220, 227 (1925) ("We do not grant a certiorari to review

evidence and discuss specific facts."). This Court should not

exercise its certiorari jurisdiction in this case.

II. THE AGGRAVATING CIRCUMSTANCE ISSUE

The second question presented in the petition concerns

the Florida Supreme Court's 1991 decision in Herring's case

with respect to the cold, calculated, and premeditated

aggravating circumstance. In pertinent part, the Florida

rae Supreme Court's opinion reads as follows:

With regard to Herring's first claim, we find

that our Rogers decision does not mandate relief

under the circumstances of this case. There were

four aggravating factors found applicable to this

murder: (1) prior conviction of another armed

robbery; (2) that the murder was committed

while engaged in the commission of a robbery;

(3) that the murder was committed for the

purpose of avoiding lawful arrest; and (4) the

aggravating circumstance in issue, that this

murder was committed in a cold, calculated, and

premeditated manner. As noted by this Court in

Eutzy v. State, 541 So.2d 1143, 1147 (Fla.

1989), our decision in Rogers, restricting the

applicability of the cold, calculated, and

15

QO

premeditated aggravating factor, was not a

fundamental change in the law that should be

given retroactive effect but was "a mere

evolutionary refinement in the law," which

should not be utilized to abridge the finality of

our judgments. Although we have held in Eutzy

that Rogers is not retroactive, we have chosen to

address this issue on the merits because we

expressly receded from our approval of the cold,

calculated, and premeditated aggravating factor

in Herring I in our Rogers decision.

While the cold, calculated, and premeditated

aggravating factor no longer applies to the

circumstances in Herring, we find that this is

not a change that requires a new sentencing

hearing in this case. None of the facts and

Circumstances that were before the jury

regarding how Herring committed the murder

are changed. If the aggravating circumstance of

a "conviction of a prior crime of violence" had

been eliminated, that would have changed the

facts and circumstances before the jury.

The evidence before the jury established that

Herring shot the clerk once in the head and

again after the clerk fell to the floor and that the

second shot was to prevent the clerk from being

a witness against him. Herring J at 1057. Given

the other aggravating and mitigating factors that

went into the weighing process in the sentencing

phase of this case, we find that the result of the

weighing process would not have been different

had this aggravating circumstance not been

articulated as a factor in the sentencing. We find

16

that the elimination of this factor, under the

circumstances of this case, does not compromise

the weighing process of either the judge or jury.

See Hill v. State, 515 So.2d 176 (Fla. 1987),

cert. denied, 485 U.S. 993, 108 S.Ct. 1302, 99

L.Ed.2d 512 (1988).

Pet. App., at A-30-31. This Court should decline to exercise its

certiorari jurisdiction over this claim for the following reasons.

The claim contained in Herring's petition is predicated

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

Florida, 504 U.S. 527 (1992). However, that claim was never

raised before the State Courts, and, in fact, Herring argued on

appeal to the Florida Supreme Court in 1990 that he was

entitled to relief on State law grounds.° The federal question

contained in the petition was not decided by the Florida

Supreme Court, which decided the state law claim on state law

grounds. Herring, supra. Herring made no effort to raise the

federal claim contained in the petition before any Florida court,

and, for that reason, certiorari review is inappropriate. Allen v.

McCurry, 449 U.S. 90, 105 (1980); Beck v. Washington, 369

U.S. 541 (1962); Cardinale v. Louisiana, 394 U.S. 437

(1969).’

° The pertinent portions of Herring's brief to the Florida Supreme

Court appear at Apppendix A-1-16.

” A Clemons-based claim was arguably contained in Herring's

motion for rehearing before the Florida Supreme Court. However, a motion

for rehearing is insufficient to present a federal question to the state courts.

Hanson v. Denckla, 357 U.S. 235, 243-44 (1958); Radio Station WOW v.

Johnson, 326 U.S. 120, 128 (1945).

17

This Court should also decline to exercise its certiorari

jurisdiction in this case because, assuming arguendo that there

is federal question presented, the petition is untimely. The

judgment of the Florida Supreme Court at issue in the second

part of the petition was rendered on May 2, 1991, and

rehearing was denied by that Court on June 12, 1991. Herring

v. State, 580 So.2d 135 (Fla. 1991). The State Court judgment

was final at that time for all purposes, including seeking review

before this Court. Under any interpretation of this Court's

rules, the time for filing a petition for writ of certiorari

respecting that decision expired eight years ago. See, e.g., Cox

Broadcasting Corp. v. Cox, 420 U.S. 469, 482-83 (1975). The

present petition is untimely and should be denied. To the extent

that Herring relies on Reece v. Georgia, 350 U.S. 85, 86-87

(1955), for the proposition that his petition for certiorari review

is timely, Reece is inapposite to the situation present in this

case. Reece presented a bizarre factual situation that is not

present in this case, and does not establish that Herring's

petition is timely.

Moreover, the Florida Supreme Court made an express

and detailed finding of harmless error that comports with this

Court’s Sochor v. Florida decision. That disposition is correct,

and there is nothing more that the State Courts can or should

do.

Finally, the petition should be denied because the

question presented therein is not of sufficient importance to

justify the exercise of this Court's certiorari jurisdiction. The

true facts are that the issue is of no interest to anyone other than

the parties to this litigation. The narrow issue contained in the

petition has no significance outside of this case, and this Court

18

should decline to exercise its certiorari jurisdiction. Rice v.

Sioux City Cemetery, 349 U.S. 70, 79 (1955).

CONCLUSION

For the reasons set out above, Respondent submits that

the petition for writ of certiorari should be denied.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

KENNETH S. NUNNELLEY

ASSISTANT ATTORNEY GENERAL

444 Seabreeze Blvd. 5th FL

Daytona Beach, FL 32118

(904) 238-4990

19

No. 98-1493

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

TED HERRING, Petitioner,

v.

STATE OF FLORIDA, Respondent.

INDEX TO APPENDIX

Argument I of Initial Brief

OR Ie PR aie cic ales vervisccccessss. A1-A16

Herring v. State,

TE ee Ee EI BON gc cacevccesccsecencnsess A17-A20

ARGUMENT

I.

THE ERRONEOUS APPLICATION OF THE

HEIGHTENED PREMEDITATION

AGGRAVATING CIRCUMSTANCE TO THE

FACTS OF THIS CASE REQUIRES

VACATION OF HERRING’S DEATH

SENTENCE

A. The Heightened Premeditation Aggravating

Circumstance Was Applied In Violation of The

Eighth And Fourteenth Amendments

Herring I has now been explicitly overruled by Rogers

v. State, 511 So.2d 526, 533 (Fla. 1987), cert. denied, 484

U.S. 1020, 98 L.Ed.2d 681, 108 S.Ct. 733 (1988) (“Since we

conclude that ‘calculation’ consists of a careful plan or

prearranged design, we recede from our holding in Herring [1],

to the extent it dealt with this question.”); see Herring III, 528

So.2d at 1178 (“Since our decision in Herring [I], this Court,

in Rogers v. State, adopted Justice Ehrlich’s view and expressly

overruled the application of this aggravating circumstance

under the factual situation set forth in Herring [I].”) (citations

omitted). Rogers and Herring III confirm that Herring is now

entitled to relief on the merits of this claim.

1. The Application Of The Heightened

Premeditation Aggravating Circumstance To

The Facts Of This Case Was An Aberration in

Florida Capital Jurisprudence.

The ninth aggravating circumstance enumerated in

Florida’s capital sentencing statute is that:

A-1

[t]he capital felony was a homicide and was

committed in a _ cold, calculated, and

premeditated manner without any pretense of

moral or legal justification.

Fla.Stat.Ann. §921.141(5)() (West Supp. 1984) (the

“heightened premeditation aggravating circumstance”).

At the time Herring was sentenced to death, Florida

case law clearly defined the scope of this aggravating

circumstance. It was restricted to circumstances in which the

degree of premeditation is shown to be greater than that

necessary to establish premeditation for conviction in the

guilt/innocence phase of a capital felony trial. See Preston v.

State, 444 So.2d 939 (Fla. 1984) (citing cases). It applies only

to cases in which “the facts show a particularly lengthy,

methodic, or involved series of atrocious events or a substantial

period of reflection and though by the perpetrator.” Jd. At 946.

Consequently, “[pJroof of this aggravating circumstance

requires a showing of a state of mind beyond that of the

ordinary premeditation required for a first degree murder

conviction.” Maxwell v. State, 432 So.2d 967, 971 (Fla.

1983); accord Washington v. State, 432 So.2d 44, 48 (Fla.

1983) (“[t]his aggravating circumstance inures to the benefit of

the defendant insofar as it requires proof beyond that necessary

to prove premeditation”); Combs v. State, 403 So.2d 418 (Fla.

1981), cert. denied, 456 U.S. 984, 72 L.Ed.2d 862, 102 S.Ct.

2258 (1982).

In this case, there was no evidence of a preconceived

plan to commit a murder. Nor does the record contain any

evidence of “a particularly lengthy, methodic, or involved

series of atrocious events or a substantial period of reflection

and thought by the perpetrator.” Preston, 444 So.2d at 946.

On the contrary, the homicide here was a spontaneous event

A-2

which occurred quickly and thoughtlessly. Nothing in this case

suggests premeditation, heightened or otherwise. Herring

undertook to rob a convenience store, as he had done on prior

occasions. In his confession, the product of eight hours of

interrogation by the police, he stated that the clerk’s sudden

movement caused him to panic and fire his gun. He stated that

he shot the clerk “by mistake,” “out of fear,” and in response

to what he perceived to be a threatening movement by the

clerk. R.O.A. at 10-11; cf. Cannady v. State, 427 So.2d 723,

730 (Fla. 1983) (“[t]hese statements establish that [the

defendant] had at least a pretense of a moral or legal

justification, protecting his own life”). The State offered no

evidence that contradicted Herring’s version of the shooting.

There is thus no evidence of reflection. The evidence

demonstrates that the gun was fired reflexively, as a

spontaneous reaction rather than a planned act.

Moreover, there was no evidence that the homicide was

preconceived. In fact, the record shows that the contrary was

the case. In confessing to the crime for which he was

sentenced to death, Herring also confessed to four other armed

robberies in which no one was hurt and his gun was never

fired. This refusal to use his gun in these other cases

demonstrates forcefully that he had no intention of using it in

the present case, and that he did so only as a responsive act.

The heightened premeditation aggravating circumstance

has been held inapplicable to cases in which the evidence

established that the victim was killed “intentionally and

deliberately,” but nothing more. Maxwell, 443 So.2d at 971.

Rather, this “aggravating circumstance ordinarily applies in

those murders which are characterized as executions or contract

murders.” McCray v. State, 416 So.2d 804, 807 (Fla. 1982).

Although this Court in McCray also observed that “that

description is not intended to be all-inclusive,” /d., nothing in

A-3

any case construing Section 921.141(5)(D -- save one, Herring

/ -- suggests that this aggravating circumstance is applicable to

any Capital felony case unless there is substantial evidence that

the killer first devised a plan to commit the murder and

thereafter put that plan into effect.

Numerous cases construing Section 921.141(5)(I) prior

and subsequent to Herring’s direct appeal have rejected the

applicability of this aggravating circumstance to facts which

show far more “lengthy, methodic or involved . . . atrocious

events” and in which thee was a far more “substantial period of

reflection and thought by the perpetrator” than was established

here. See, e.g., Preston, 444 So.2d at 945 (heightened

premeditation aggravating circumstance held inapplicable

where, after robbing a convenience store, the murderer

kidnapped the store clerk, forced her to walk a mile and a half

at knifepoint, after which the murderer cut the clerk’s throat

“by severing the jugular veins, trachea and main arteries of the

neck,” stabbed the victim numerous times about her body, and

cut a cross mark into her forehead); White v. State, 446 So.2d

1031 (Fla. 1984) (heightened premeditation aggravating

circumstance held inapplicable where the evidence established

that defendant had robbed a convenience store, in the course of

which he shot and killed a customer; shot the store clerk twice,

paralyzing him permanently from the neck down; and attempted

to shoot two other persons who came into the store); Blanco vy.

State, 452 So.2d 520, 526 (Fla. 1984), cert. denied, 469 U.S.

1181, 83 L.Ed.2d 953, 105 S.Ct. 940 (1985) (although

defendant, while committing a burglary, shot the victim six

times after the victim had fallen from his first shot, Florida

Supreme Court concluded “there was no showing of heightened

premeditation beyond a reasonable doubt necessary to the

proper application of this factor”); Hamblen v. State, 527 So.2d

800, 805 (Fla. 1988) (heightened premeditation aggravating

circumstance held inapplicable where “the evidence [did] not

A-4

iii: i tii cian aa

indicate that [the defendant] had a conscious intention of killing

[the victim] when he decided” to commit the robbery); Garron

v. State, 528 So.2d 353 (Fla. 1988) (heightened premeditation

aggravating circumstance held inapplicable where killing of

stepdaughter appeared to have been a “spontaneous reaction”). !

The decision reached in Herring’s direct appeal was, and

remains, a solitary aberration in the construction of the

heightened premeditation aggravating circumstance.

A noteworthy example of how the Florida courts have,

with the sole exception of Herring I, consistently applied the

' See also McCray, 416 So.2d at 805 (heightened premeditation

aggravating circumstance held inapplicable where themurderer first stole

several boxes of rifles from the victim’s van, and later, after taking them to

the edge of a wooded area, returned to the victim’s van where the killer

yelled, “This is for you, you motherfucker,” and shot the victim three times

in the abdomen); Cannady, 427 So.2d at 730 (heightened premeditation

aggravating circumstance held inapplicable where the killer first abducted

a hotel employee and later shot victim five times, killing him); King v.

State, 436 So.2d 50 (Fla. 1983), cert. Denied, 466 U.S. 909, 80 L.Ed.2d

163, 104 S.Ct. 1690 (1984) (heightened premeditation aggravating

circumstance held inapplicable where the victim had first been struck on the

head with a blunt instrument by her roommate, who thereafter shot her in

the head); Peavey v. State, 442 So.2d 200 (Fla. 1983) (heightened

premeditation aggravating circumstance held inapplicable where the elderly

victim was stabbed several times and his apartment was ransacked by

defendant, who sprayed shaving cream on the door lock to avoid detection

and had, prior to the murder, accompanied the victim into his apartment by

helping him with his groceries); Harris v. State, 438 So.2d 787 (Fla. 1983),

cert. denied, 466 U.S. 963, 80 L.Ed.2d 563, 104 S.Ct. 2181 (1984)

(heightened premeditation aggravating circumstance held inapplicable where

evidence revealed that the victim, a 73-year-old woman, was killed after she

fought long and hard for her life); Drake v. State, 441 So.2d 1079 (Fla.

1983), cert. denied, 466 U.S. 978, 80 L.Ed.2d 832, 104 S.Ct. 2361 (1984)

(heightened premeditation aggravating circumstance held inapplicable in

spite of evidence that the victim was first kidnapped; later raped, using her

bra to tie her hands behind her back; and finally killed, being stabbed

repeatedly in the lower chest and abdomen).

A-5

heightened premeditation aggravating circumstance can be

found in Caruthers v. State, 465 So.2d 496 (Fla. 1985), a case

decided one year after Herring I. In Caruthers, this Court

reversed a death sentence and instructed the trial court to

impose a life sentence on the basis of a factual record virtually

identical to the record here. The material facts of Caruthers

were that (1) a convenience store clerk, who had known the

accused, was found dead behind the store counter, with the

cash register open, and (2) after his arrest, the accused

confessed to the robbery and homicide, claiming that he shot

the clerk three times after the clerk made a sudden movement.

465 So.2d at 497-98. Finding that the operative facts failed to

establish “a manner of killing characterized by heightened

premeditation beyond that required to establish premeditated

murder,” this Court concluded that the imposition of the death

penalty was disproportionate. Jd. At 498-99.

This Court vacated Caruthers’ death sentence based, in

part, upon a finding that two aggravating circumstances were

erroneously applied. Both of these same aggravating

circumstances form the basis for Herring’s sentence Yet,

despite the startling similarities between Caruthers and

Herring, this Court reached a totally inconsistent conclusion on

direct appeal in Herring’s case. The only meaningful

differences between the present case and Caruthers weigh in

Herring’s favor: Herring had never met the store clerk before,

unlike Caruthers, who was known to his victim; and the clerk

was shot twice in Herring, three times in Caruthers. If the

Florida death penalty statute can permit two diametrically

opposite results to flow from the same set of facts, then that

statute surely is being applied in an arbitrary and capricious

fashion.

On direct appeal in this case, this Court affirmed the

trial court’s ruling as to the applicability of this aggravating

A-6

Fe IS ELAN int adia pea allot

circumstance. Herring I, 446 So.2d at 1057. Justice Ehrlich

dissented from this finding, stating:

We have, since McCray and Combs, gradually

eroded the very significant distinction between

simple premeditation and the heightened

premeditation contemplated in __ section

921.145(1), Florida Statutes (1981). Loss of

hat distincti A ine nee

itutionality of ey

, ‘tutional; lied. of

Flor ida’s death penalty Statute.

Id. At 1058 (Ehrlich, J., concurring in part, dissenting in part)

(emphasis supplied).

Justice Ehrlich’s analysis of the inapplicability of this

aggravating circumstance to Herring’s case was correct, as this

Court acknowledged in Rogers:

There is an utter absence of any evidence that

Rogers in this case had a careful plan or

prearranged design to kill anyone during the

robbery. While there is ample evidence to

support simple premeditation, we must conclude

that there is insufficient evidence to support the

heightened premeditation described in the

statute, which bear the indicia of “calculation”.

Since we conclude that “calculation”

a careful plan or prearranged design, we recede

: niiidiins in Hovetano 5 146 So.2d

1049, 1057 (Fla.), cert. Denied, 469 U.S. 989

(1984), to the extent it dealt with this question.

511 So.2d at 533 (emphasis supplied).

A-7

Herring’s death sentence is unique under Florida’s

Capital sentencing statute, and as a consequence, Herring is in

a class of one on death row in Florida. In no case, either

before Herring’s or since, has this aggravating circumstance

been applied under facts remotely resembling the facts of this

case, and this Court has held it erroneous to do so.

2. The Application Of The Heightened

Premeditation Aggravating Circumstance Is An

Error Of Constitutional Dimension

While the Florida capital sentencing scheme has been

upheld on constitutional grounds as written, Proffitt v. Florida,

428 U.S. 242, 49 L.Ed.2d 913, 96 S.Ct. 2960 (1976), the

Eighth and Fourteenth Amendments require that it be applied

consistently and fairly. Gregg v. Georgia, 428 U.S. 153, 49

L.Ed.2d 859, 96 S.Ct. 2909 (1976); see also Spaziano v.

Florida, 468 U.S. 447, 459-60, 82 L.Ed.2d 340, 104 S.Ct.

3154 (1984); Eddings v. Oklahoma, 455 U.S. 104, 110-11, 71

L.Ed.2d 1, 102 S.Ct. 869 (1982).

Where, as here, a capital sentencing statute requires the

application of a defined aggravating circumstance to impose a

death sentence, “[pJart of a State’s responsibility . . . is to

define the crimes for which death may be the sentence in a way

that obviates ‘standardless (sentencing) discretion.’” Godfrey v.

Georgia, 446 U.S. 420, 428 64 L.Ed.2d 398, 100 S.Ct. 1759

(1980) (quoting Gregg, 428 U.S. at 196 n.47, 96 S.Ct. At

2936). A particular sentence of death violates the Eighth

Amendment where a state court “fail[s] to apply its previously

recognized limiting construction of [an] aggravating

circumstance” which forms the basis of that death sentence.

Maynard v. Cartwright, 486 U.S. 356, 100 L.Ed.2d 372, 108

S.Ct. 1853 (1988) (citing Godfrey, 446 U.S. at 429, 100 S.Ct.

At 1765).

A-8

In Cartwright, 486 U.S. at 356, t he Court unanimously

affirmed the yacatur of a death sentence based on the erroneous

application of a statutory aggravating circumstance. Relying on

Godfrey, t he Court concluded that the Oklahoma Court of

Criminal Appeals had “failed to apply its previously recognized

limiting construction of the aggravating circumstance,” and

that, as a result, “there was ‘no principled way to distinguish

this case, in which the death penalty was imposed, from the

many cases in which it was not.’” Cartwright, 486 U.S. at 363,

108 S.Ct. At 1859 (quoting Godfrey, 446 U.S. at 433, 100

S.Ct. At 1767). The Court concluded that the application of

the aggravating circumstance to the facts of Cartwright

“without some narrowing principle to apply to those facts”

violated the Eighth Amendment. Jd.

In Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.

1982), cert. Denied, 464 U.S. 1002, 78 L.Ed.2d 697, 104

S.Ct. 508 (1983), the Eleventh Circuit vacated a death sentence

on the basis of, among to her things, the erroneous application

of Florida’s “heinous, atrocious, and cruel” aggravating

circumstance, as well as the state’s “risk of death to many

persons” aggravating factor. Relying on Godfrey, the Court

held that “[a]pplication of [these] aggravating factor[s] to the

facts of this case is not only inconsistent with the Florida

Supreme Court’s construction of the provision[s]; it also

reflects an absence of control or guidance of the sentencing

judge’s discretion.” 685 F.2d at 1265-66. The court

concluded that the erroneous application of the statutory

aggravating circumstances “suggests no ‘inherent restraint on

the arbitrary and capricious infliction of the death sentence,’”

and therefore violated the Eighth Amendment. Jd. at 1264-65

(quoting Godfrey, 446 U.S. at 428, 100 S.Ct. At 1764).

A-9

As the Eleventh Circuit later explained in Hargrave v.

Wainwright, 804 F.2d 1182, 1194 (11th Cir.), rehearing en

banc granted and vacated on other grounds, 809 F.2d 1486

(11th Cir. 1986):

In sum, the state reviewing courts in both

Proffitt and Godfrey failed to give any

explanation or set forth any facts upon which the

courts justified their findings of the particular

aggravating circumstance under _ review.

PRE Ie TH SPIRE CA EN L. neither thie ciseuit in Profit

ee ee eee ag before it f

which the state courts had not found the

soul ge 7

Id, (Emphasis supplied). This rationale applies with particular

force to the present case.

3. Herring Is Entitled To A New Sentencing

Hearing.

As a matter of Florida law, Herring is entitled to a new

sentencing hearing. As the United States Supreme Court has

recognized, under Florida law, “[iJf the trial court found that

some mitigating circumstances exist . . . a “defendant must be

resentenced when [the] trial court[] erroneously consider{[s]

improper aggravating factors.” Barclay v. Florida, 463 U.S.

939, 954-55, 77 L.Ed.2d 1134, 103 S.Ct. 3418 (1983). Under

such cicumstances, a resentencing is required because

the procedure to be followed by the trial judges

and juries is not a mere counting process of X

number of aggravating circumstances and Y

A-10

| pean whet Wea ee: Gs ner Ma wes ee

a Saale alee dic pe Ripiataaten yeas

number of mitigating circumstances, but rather

a reasoned judgment as to what factual situations

require the imposition of death and which can be

satisfied by life imprisonment in light of the

totality of the circumstances present.

Elledge v. State, 346 So.2d 998, 1003 (1977) (quoting State v.

Dixon, 283 So.2d 1, 10 (Fla. 1973), cert. denied, 416 U.S.

943, 40 L.Ed.2d 295, 94 S.Ct. 1950 (1974)); see also Elledge,

Id. (“Would the result of the weighing process by both the jury

and the judge have been different had the impermissible

aggravating factor not been present? We cannot know. Since

we cannot know and since a man’s life is at stake, we are

compelled to return this case to the trial court for a new

sentencing trial.”); accord Barclay, 463 U.S. at 963, 103

S.Ct. At 3431-32 (Stevens, J., concurring); Magwood v. Smith,

791 F.2d 1438, 1450 (11th Cir. 1986) (defendant “entitled to

new sentencing hearing in order to satisfy the constitutional

safeguards for sentencing in death penalty cases” where trial

court erroneously rejected two mitigating circumstances during

sentencing phase). Herring’s death sentence has therefore been

irremediably infected by the erroneous application of the

heightened premeditation aggravating circumstance.

B. The Trial Court Committed Clear Error In

Summarily Dismissing Herring’s Rogers Claim.

In summarily dismissing Herring’s Rogers claim, the

trial court simply accepted the State’s arguments that this

Court’s decision in Eutzy v. State, 541 So.2d 1143 (Fla. 1989),

effectively foreclosed the relief Herring seeks, and that, in any

event, Herring’s Rogers claim was “procedurally defaulted in

that it [was] untimely presented in violation” of Rule 3.850.

R.O.A. at 100-01. In so holding, the trial court failed to

address the constitutional significance of the Rogers decision as

A-11

applied to Herring, misread this Court’s decision in Eutzy, and

accepted arguments proffered by the State in plain violation of

the very procedural default rules -- which apply with equal

force to the State -- cited by the trial court in disposing of

Herring’s claim.

1. The Trial Court Misread Eutzy As

Foreclosing Herring’s Rogers Claim; In Fact,

Eutzy Confirms That Herring Is Now Entitled

To Relief.

In its Order summarily dismissing Herring’s Rogers

claim, the trial court did not consider the aberrational nature of

the application of the heightened premeditation aggravating

circumstance to the facts of Herring’s case; it did not consider

the numerous indistinguishable cases in which that circumstance

was held to be inapplicable; it did not analyze the effect of the

Rogers holding overruling Herring I as applied to Herring

himself; it did not even mention the binding United States

Supreme Court precedent, including Cartwright and Godfrey,

on point. Instead, the court below merely accepted the State’s

argument that Herring was not entitled to a benefit of the

Rogers decision in light of this Court’s opinion in Eutzy,

holding that the “decision in Rogers . . ., restricting the

applicability of the cold, calculated, and premeditated

aggravating factor was not a fundamental change in the law

‘should be given retroactive effect’ but was a mere

‘evolutionary refinement’ in the law which should not be

utilized to abridge the finality of judgments.” R.O.A. at 100-01

(quoting Eutzy, 541 So.2d at 1147) (emphasis in original). This

holding reflects the trial court’s misapprehension of Herring’s

Rogers claim and its misreading of Eutzy as dispositive.

In essence, Herring argued below, as he does here, that

his death sentence was an aberration in Florida capital

A-12

Ce,

ee, ae OS te eR ERS.

ls a ele Se AD oe es SER

jurisprudence; that is, Herring I was a mistake at the time it

was decided. The Rogers decision, which “expressly overruled

the application of [the heightened premeditation] aggravating

circumstance under the factual situation set forth in Herring

[1],” Herring III, 528 So.2d at 1178, thus confirmed the

aberrational nature of Herring’s death sentence.? As such, the

critical issue before the trial court was not whether Rogers

applied retroactively to Herring, but rather, whether Herring

could remain under a sentence of death imposed on the basis of

a statutory aggravating circumstance wrongly applied -- as

Rogers confirmed -- in the first instance Eutzy did not address

this question.?

Indeed, this Court’s decision in Eutzy does nothing to

diminish Herring’s claim that his death sentence is an

* The State argued below that “Rogers does not specifically

invalidate the cold, calculated, and premeditated murder aggravating factor

found established in this case.” R.O.A. at 49. This argument obviously is

incorrect in light of this Court’s unequivocal statement in Herring III. It

also is contrary to the position taken by the State in federal court: “(Bly

virtue of the decision in Rogers [citation omitted], one of the aggravating

factors upon which the trial court based its decision to [impose] the death

penalty would seem to have been eliminated in this case.” R.O.A. at 41.

For reasons discussed more fully in Section I.B.2., infra, the State should

be barred from denying the validity of Herring’s Rogers claim.

* In his Rule 3.850 motion, Herring argued, in t he alternative,

that if Herring I was not an aberration, then Rogers must be viewed as a

fundamental change in Florida law warranting retroactive application.

R.O.A. at 15-33. The Eutzy Court did not address this alternative question

presented in Herring’s motion; namely, whether Herring himself -- as

opposed to an entire class of capital defendants -- is entitled to retroactive

relief in light of this Court’s acknowledgment in Rogers of the erroneous

application of the heightened premeditation aggravating circumstance in

Herring I. Therefore, Herring maintains that if the decision in Herring I

was not an aberration, then he, and he alone, is entitled to the retroactive

benefit of Rogers.

A-13

aberration; if anything, Eutzy supports Herring’s position. In

holding that Rogers was not a “jurisprudential upheaval”

requiring retroactive application to Eutzy, 541 So.2d at 1147,

this Court recognized that the law of the heightened

premeditation aggravating circumstance had not changed.

Rather, Rogers was merely an “evolutionary refinement” in a

body of law that had been applied consistently -- with the

exception of this case -- since well before the decision in

Herring I. Under these circumstances, Supreme Court

decisions such as Cartwright and Godfrey, among others, make

clear that Herring’s death sentence violates the Eighth and

Fourteenth Amendments. The trial court’s misapprehension of

Herring’s claim and misreading of Eutzy are more than

sufficient grounds for reversal.

2. The Trial Court Erred In Failing To Hold

The State Procedurally Barred From denying

The Validity Or Timeliness Of Herring’s Rogers

Claim.

As noted above, the trial court summarily denied

Herring’s Rule 3.850 motion “for the reasons set forth in the

State’s . . . Motion to Strike.” R.O.A. at 100. These

“reasons” included the State’s procedural default argument and

its misreading of the Eutzy decision. Yet, when the State

moved to dismiss Herring’s Federal Petition, it argued that (I)

the heightened premeditation aggravating circumstance “would

seem to have been eliminated in this case;” (ii) Herring “failed

to exhaust his available state court remedies” by “never

specifically present [ing] to any state court his [Rogers]

argument;” and (iii) Herring “could file another Rule 3.850

motion under the authority of Witt v. State, 387 So.2d 922 (Fla.

1980) and Witt v. State, 465 So.2d 510 (Fla. 1985).” R.O.A.

at 41-42.

Se nr a Se ee OPS Rr ate ee eR OPE SER i ee oT

In short, the State successfully obtained a dismissal of

Herring’s Federal Petition on the basis of these arguments, then

argued below that Herring’s current Rule 3.850 motion lacked

merit and, in nay event, was time-barred. The State cannot

have it both ways. Having invited Herring to litigate his

Rogers claim in the Florida courts, the State waived its ability

to deny the timeliness of Herring’s current Rule 3.850 motion

or the validity of Herring’s claim that his death sentence was an

aberration.* Under these circumstances, the trial court was

obligated, at a minimum, to find Herring’s Rule 3.850 motion

timely filed, whether because the State was estopped by its

conduct in federal court from asserting such a defense.

“Waiver of claims is not a principle that works only to

the detriment of petitioners.” Smith v. Zant, 887 F.2d 1407,

1438 (11th Cir. 1989) (en banc) (Kravitch, J., concurring in

part and dissenting in part); see generally Granberry v. Greer,

481 U.S. 129, 134, 95 L.Ed.2d 119, 107 S.Ct. 1671 (1987)

(declining “to adopt a rule that would permit, and might even

encourage, the State to seek a favorable ruling on the merits in

the district court while holding [a procedural] defense in

reserve for use on appeal if necessary”); Murray v. Carrier,

477 U.S. 478, 91 L.Ed.2d 397, 106 S.Ct. 2639 (1986); Smith

v. Murray, 477 U.S. 527, 91 L.Ed.2d 434, 106 S.Ct. 2661

(1986); Wainwright v. Sykes, 433 U.S. 72, 53 L.Ed.2d 594, 97

S.Ct. 2497 (1977). Where, as here, “[t]he state selected its

defenses and its arguments . . . it must accept the ramifications

* Of course, the State was free to argue that the Eutzy decision

foreclosed retroactive application of Rogers to Herring, and did so.

However, the State was barred from taking contradictory positions in federal

and state court with respect the propriety of applying the heightened

premeditation aggravating circumstance to the facts of this case, as it also

did. See n. at 25, infra.

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of those choices.” Smith v. Zant, 887 F.2d at 1438 (Kravitch,

J., concurring in part and dissenting in part).

In this case, the State should be held to have waived any

time-bar objection to Herring’s Rogers claim in light of the

exhaustion defense it asserted in response to Herring’s Federal

Petition. Indeed, the State affirmatively represented in its

motion to dismiss the Federal Petition that Herring’s claim was

not time-barred. The trial court’s failure to acknowledge and

enforce the State’s waiver was clearly erroneous.

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SUPREME COURT OF FLORIDA

Ted HERRING, Appellant,

Vv. No. 67,524

STATE of Florida, Appellee.

Dec. 30, 1986.

Rehearing Denied March 2, 1987.

Defendant, who had been convicted and sentenced to

death for robbing and killing convenience store clerk, moved

for postcenviction relief. The Circuit Court, Volusia County,

S. James Foxman, J., denied the motion. Defendant appealed.

The Supreme Court held that: (1) defendant's arguments were

not proper for postconviction relief motion, and (2) death

sentence was proportionate to crime.

Affirmed.

Jeremy G. Epstein, Dennis P. Orr, Kenneth A. Freeling

and James P. Bodovitz of Shearman & Sterling, New York

City, for appellant.

Jim Smith, Atty. Gen. and Ellen D. Phillips, Asst. Atty.

Gen., Daytona Beach, for appellee.

PER CURIAM.

Ted Herring appeals a trial court's denial of his motion

for post-conviction relief without an evidentiary hearing under

the provisions of Florida Rule of Criminal Procedure 3.850.

We have jurisdiction, article V, section 3(b)(1), Florida

Constitution, and affirm.

Herring was convicted and sentenced to death for

robbing and killing a convenience store clerk. The evidence

reflected that Herring shot the clerk once when he perceived a

threatening move, and then shot the clerk again "when he hit

the ground." This Court affirmed Herring's conviction and

sentence in Herring v. State, 446 So.2d 1049 (Fla.), cert.

denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984).

[1] Herring raises the following multiple issues that

could have been raised on appeal: (1) the trial court

erroneously applied two statutory aggravating circumstances;

(2) the trial court impermissibly counted both the cold,

calculated, and premeditated and the elimination of witness

aggravating circumstances; (3) the trial judge applied a

nonstatutory aggravating factor in sentencing Herring to death;

(4) Herring's probation officer should not have been allowed to

testify concerning Herring's comment about the victim; (5) the

death penalty jury instructions were constitutionally inadequate;

(6) the trial judge failed to consider the death sentence's

proportionality; (7) the trial court erroneously excluded

Herring's proffered mitigating evidence; (8) the trial court

applied an incorrect sentencing standard; (9) during the

sentencing phase closing arguments, the prosecutor improperly

suggested that Herring might be granted parole if given life

imprisonment; (10) excluding a prospective juror for cause

because of his death penalty views violated the sixth and

fourteenth amendments; (11) the state did not prove Herring

knowingly and intelligently waived his privilege against

self-incrimination and his right to appeal; and, finally, (12) the

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TE T_T,

trial judge erred by abandoning his duty to review the jury's

recommended sentence. We reject all these contentions as

improper for a 3.850 motion. As we have previously stated,

a 3.850 motion cannot be utilized for a second appeal to

consider issues that either were raised or could have been raised

in the initial appeal. Sireci v. State, 469 So.2d 119 (Fla.1985),

cert. denied, --- U.S. ----, 106 S.Ct. 3308, 92 L.Ed.2d 721

(1986); Jones v. State, 446 So.2d 1059 (Fla.i984); Demps v.

State, 416 So.2d 808 (Fla.1982).

[2] Appellant next claims that his sentence is not

proportionate, and that Caruthers v. State, 465 So.2d 496

(Fla.1985), decided after we affirmed the initial appeal in this

case, mandates a life sentence. The state responds that a prior

case is not reviewable in light of a subsequent decision, citing

Tafero v. State, 459 So.2d 1034 (Fla.1984), and Sullivan v.

State, 441 So.2d 609 (Fla.1983). We do not reach that issue

because there are clear distinguishing characteristics between

Caruthers and Herring. Caruthers had no significant history

of prior criminal activity, and the sentencing proceeding

considered other nonstatutory mitigating factors. Herring,

however, had a prior robbery conviction. Additionally, there

was evidence that Herring killed the victim to eliminate him as

a witness. We hold that Herring's contention on this issue is

without merit.

[3] In his next point, Herring contends that an

evidentiary hearing was necessary to decide his

ineffective-assistance-of-counsel claims. The trial judge, in an

extensive order, fully explained why each of the

ineffective-assistance-of-counsel claims did not meet the test set

forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), and Knight v. State, 394 So.2d

997 (Fla.1981). We agree with the trial judge's findings and

commend him for his detailed explanation.

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Finally, we reject Herring's claim that our capital

sentencing statute is discriminatorily applied. We have

rejected this claim in multiple decisions. Smith v. State, 457

So.2d 1380 (Fla.1984); Adams v. State, 449 So.2d 819

(Fla. 1984).

For the reasons expressed, we affirm the trial court's

denial of relief.

It is so ordered.

McDONALD, C.J., and ADKINS, BOYD,

OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur.

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