# Opposition Brief — Herring v. Florida

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1443%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1003

## Text

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

A-18

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.

A-19

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.

A-20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1443%3A2. Public record. Not legal advice.