Reply Brief — Herring v. Florida

upreme Court. U.S

Be Pe bee a

MAY 24 1999

No. 98-1493

SL ERK

dn the

Supreme Court of the United States

OCTOBER TERM, 1998

+epe

TED HERRING,

Petitioner,

VS.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

PETITIONER’S REPLY BRIEF

LEON H. HANDLEY JEREMY G. EPSTEIN

GURNEY & HANDLEY, P.A. Counsel of Record

225 East Robinson Street

Suite 450 ALAN S. GOUDISS

Orlando, Florida 32801 JAMES R. WARNOT, JR.

(407) 843-9500 KATHRYN TABNER

; DANIEL SCHIMMEL

JON M. WILSON MICHAEL TREMONTE

JOHN R. HAMILTON SHEARMAN & STERLING

FOLEY & LARDNER 599 Lexington Avenue

111 North Orange Avenue New York, New York 10022

Suite 1800 (212) 848-4000

P.O. Box 2193

Orlando, Florida 32802

(407) 423-7656

Attorneys for Petitioner Ted Herring

May 25, 1999

ape

CAPITAL CASE

QUESTIONS PRESENTED

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 vy.

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 the evidence or conducting a harmless error

analysis.

TABLE OF CONTENTS

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I. THE FLORIDA SUPREME COURT'S

DECISION DIRECTLY CONFLICTS

WITH DECISIONS OF NUMEROUS

OTHER COURTS AND

DEMONSTRATES UNCERTAINTY IN

THE LOWER COURTS IN THE

APPLICATION OF CUYLER vy.

Tc

I]. INUPHOLDING HERRING’S

SENTENCE DESPITE THE

ELIMINATION OF THE HEIGHTENED

PREMEDITATION AGGRAVATING

CIRCUMSTANCE, THE FLORIDA

SUPREME COURT VIOLATED THE

EIGHTH AND FOURTEENTH

ET ice ec ecrce cst cssssenoonccsc: 3

Nm

A. The Decision Of The Florida Supreme

Court Is Indistinguishable From This

Court’s Decision In SoCHOP ..........cccceccesseees 3

B. Herring Properly Presented His

Federal Claims To The Florida

CS 4

C. Final Judgment Was Entered On

January 14, 1999 And This Court Has

Jurisdiction Over All Federal

Questions Decided In All Earlier

Stages OF Te LAUSAION 60... cssiesscssevesscenenes 5

CONCLUSION AND MOTION FOR

SUMMARY RE VGA bicoscicsescosecevevesavscesnasenansose ?

iV

APPENDIX

Motion to Vacate Sentence

pursuant to Florida Rule of Criminal

Procedure 3.850, filed on

PN i ia A-l

Initial Brief of Appellant on appeal

from denial of Motion to Vacate Sentence,

filed on

AS a | ERR RRPERRRRe ere pccl oneb teen rae eae ee A-4

Answer Brief of Appellee on appeal

from denial of Motion to Vacate Sentence.

filed on

PAENRE ig Ceviche ee a A-8

Reply Brief of Appellant on appeal

from denial of Motion to Vacate Sentence.

filed on

UE a EP esti antincee A-10

TABLE OF AUTHORITIES

Cases Page(s)

Clemons v. Mississippi,

We Rees PO CN POOR icici 4

Cox Broadcasting Corp. v. Cohn,

WO th PEROT cig 5

Cuyler v. Sullivan,

WF WR PADRE IMO) oo isco sesasdooenivcne 2

Espinosa v. Florida,

PP Naas SOTO LI DUAY vsssiceisidinecscc 7

Flynt v. Ohio,

WOT Chi OEP CAPR iliteii sii i eo 5

Radio Station WOW, Inc. v. Johnson.

OI UN a a 5

Reece v. Georgia,

Poe aah BORD OS i ie 5

Rogers v. State,

Pas ae ee P90) onc 3

Sochor v. Florida,

PRUs OPTI PAE vis cccsicstis cosa 3,4

United States v. Tatum,

wre Fa 370 Ce: 1991); 2

Statutes

bt ts Be 5 Pa SRORIE AIST CEU Rete thcc te oe Nene a 5

Vii

Vill

Bat bist Sabet PINRO a ee alae ae

Ted Herring (“Herring”) respectfully requests that this

Court summarily reverse the September 24, 1998 and May 2,

1991 decisions of the Florida Supreme Court in this case,

upholding the denial of Herring’s Motion to Vacate Judgment

and Sentence pursuant to Rule 3.850 of the Florida Rules of

Criminal Procedure.

In the alternative, Herring respectfully petitions this Court

for a writ of certiorari to review the September 24, 1998 and

May 2, 1991 decisions of the Florida Supreme Court in this

case, upholding the denial of Herring’s Motion to Vacate

Judgment and Sentence pursuant to Rule 3.850 of the Florida

Rules of Criminal Procedure.

JURISDICTION

Petitioner relies upon the statement of Jurisdiction set forth

in his initial brief, and, for the reasons set forth below, rejects

the State’s contention that his petition for writ of certiorari to

review the May 2, 1991 decision of the Florida Supreme Court

is untimely.

STATEMENT OF THE CASE

Petitioner relies upon the Statement of the Case set forth in

his petition for writ of certiorari.

I. THE FLORIDA SUPREME COURT’S

DECISION DIRECTLY CONFLICTS WITH

DECISIONS OF NUMEROUS OTHER

COURTS AND DEMONSTRATES UNCER-

TAINTY IN THE LOWER COURTS IN THE

APPLICATION OF CUYLER v. SULLIVAN

In his first claim, Herring argues that the Florida Supreme

Court misconstrued this Court’s decision in Cuyler and ignored

the decisions of numerous other courts which have held that

counsel’s performance at trial is highly relevant in performing

a Cuyler analysis of actual conflict. Petition at 13. The State

agrees that a defendant is entitled to relief under Cuyler when

his counsel (i) had an actual conflict of interest, and (ii) the

conflict adversely affected his representation of the defendant.

Id. The State further concedes that the Florida Supreme Court

expressly refused to address, as required by the second prong of

the Cuyler standard, any aspect of Pearl’s performance at trial.

Id.

Having made these concessions, the State is left only to

claim, without elaboration, that the Florida Supreme Court’s

decision is consistent with Cuyler and the four decisions cited

in the petition. It does not, however, meet the petitioner’s

argument that each of these courts recognized that the two parts

of the Cuyler test “are often intertwined, making the factual

analyses of them overlap.” United States v. Tatum, 943 F.2d

370, 375 (4th Cir. 1991). Hence no proper analysis under

Cuyler can confine itself to one prong of the test, or wilfully

ignore counsel’s trial performance. Such ignorance is especially

inexplicable where, as here, trial counsel’s performance offers

the clearest possible demonstration that he was laboring under

a conflict between his allegiance to law enforcement and his

representation of his client. Petition at 6-7.

o)

co

Il. IN UPHOLDING HERRING’S SENTENCE

DESPITE THE ELIMINATION OF THE

HEIGHTENED PRE-MEDITATION AGGRA-

VATING CIRCUMSTANCE, THE FLORIDA

SUPREME COURT VIOLATED THE EIGHTH

AND FOUR-TEENTH AMENDMENTS

A. The Decision Of The Florida Supreme

Court Is Indistinguishable From This

Court’s Decision In Sochor

The decision of the Florida Supreme Court in Herring is

indistinguishable from the Florida Supreme Court decision

overturned by this Court in Sochor v. Florida, 504 U.S. 527

(1992). As in Sochor, Eighth Amendment error occurred when

the trial judge weighed the “heightened premeditation”

aggravating circumstance in the absence of proof, beyond a

reasonable doubt, of “calculation” which consists of a “careful

plan or prearranged design to kill.” Rogers v. State, 511 So. 2d

526, 533 (Fla. 1987); cf. Sochor, 504 U.S. at 540: Petition at

19. As in Sochor, because

the Supreme Court of Florida did not explain or even

“declare a belief that” this error “was harmless beyond

a reasonable doubt” in that “it did not contribute to the

[sentence] obtained” . . . . the error cannot be taken as

cured by the State Supreme Court’s consideration of the

case.

Sochor, 504 U.S. at 539 (citation omitted). It therefore must

follow, as in Sochor, that Herring’s sentence “cannot stand on

the existing record of appellate review.” /d. at 540. The State

wisely — if gracelessly — does not attempt to distinguish

Sochor. Nor can the State now remedy the Florida Supreme

Court’s error by describing its decision as a “finding of

harmless error,” Respondent's Brief at 18, when the court itself

failed to identify what (if any) type of analysis it purportedly

performed. This Court rejected in Sochor the State’s nearly

identical effort to overcome in its argument on certiorari the

Florida Supreme Court’s “failfure] so much as to mention

‘harmless error.’” Sochor, 504 U.S. at 539-40.

B. Herring Properly Presented His Federal Claims

To The Florida State Courts

In complete disregard of the record, the State argues that

Herring cannot seek this Court’s review of his claim under

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

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

raised before the State Courts.” Respondent's Brief at 17. In

fact, the record clearly indicates that Herring challenged the

violation of his Eighth and Fourteenth Amendment rights both

in his 3.850 Motion to Vacate Sentence, Appendix at 1 — 3, and

in his appeal to the Florida Supreme Court of the trial court’s

denial of the 3.850 motion. Appendix at 5. During the appeal,

the State argued in the alternative that the erroneous application

of that aggravating factor was harmless. Appendix at 9. In his

reply brief, Herring responded to the State’s argument —

anticipating the issue presently before this Court — by

contending that the erroneous application of the heightened

premeditation aggravating factor could not be considered

harmless error beyond a reasonable doubt, citing Clemons for

the proposition that “failure to remand to a sentencing jury

violates the Constitution ‘if the decision is made arbitrarily.””

Appendix at 15. Thus, the State’s argument is demonstrably

false.

C. Final Judgment Was Entered On January 14,

1999 And This Court Has Jurisdiction Over All

Federal Questions Decided In All Earlier Stages

Of The Litigation

This Court has jurisdiction to review “all of the substantial

federal questions determined in the earlier Stages of the

litigation” by the Florida Supreme Court. Reece v. Georgia,

350 U.S. 85, 87 (1955). There was nothing “bizarre” about the

facts in Reece, as the State now asserts without explanation,

Respondent's Brief at 18, and this Court did not limit its

holding in Reece to those facts. Moreover, certiorari could not

have been obtained earlier, because the Florida Supreme

Court’s June 12, 1991 denial of rehearing was not a final

judgment as of that date within the meaning of 28 U.S.C.

§ 1257. In general, this Court’s final judgment rule

preclude[s] reviewability here where anything further

remains to be determined by a State court, no matter

how dissociated from the only federal issue that has

finally been adjudicated by the highest court of the

State.

Radio Station WOW, Inc. v. Johnson. 326 U.S. 120, 124 (1945).

There can be little doubt that the State would have invoked this

rule had Herring sought certiorari review in 1991.

However, Herring’s case would not have qualified for an

exception to the final judgment rule in 1991. As the State’s own

authority, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975), makes clear, “[i]n most, if not all” of the cases in which

an exception to the final judgment rule was found, “additional

[state court] proceedings would not require the decision of other

federal questions that might also require review by the Court at

a later date . . .” Cox, 420 U.S. at 477. Indeed, as the Court

observed in Flynt v. Ohio, 451 U.S. 619 (1981), certiorari is

inappropriate where “it appears that [on remand] other federal

issues will be involved in the trial court . . .,” and “there is no

identifiable federal policy that will suffer if the state criminal

proceeding goes forward.” /d. at 621-22. Because the judgment

of the Florida Supreme Court did not become final until, after

an eight-year delay, that court decided all aspects of petitioner’s

original appeal, the State’s contentions present no obstacle to

this Court’s exercise of jurisdiction over both of Herring’s

constitutional claims.

6

CONCLUSION AND REQUEST FOR

SUMMARY REVERSAL

Because the State has failed to address the merits of

Herring’s claims, and because the State’s procedural

contentions are unavailing, petitioner requests summary

reversal of the judgment below. See, e.g., Espinosa v. Florida,

505 U.S. 1079 (1992). In the alternative, and for the foregoing

reasons, petitioner Ted Herring’s petition for a writ of certiorari

should be granted.

Dated: May 25, 1999

LEON H. HANDLEY

GURNEY & HANDLEY, P.A.

225 East Robinson Street

Suite 450

Orlando, Florida 32801

(407) 843-9500

JON M. WILSON

JOHN R. HAMILTON

FOLEY & LARDNER

111 North Orange Avenue

Suite 1800

P.O. Box 2193

Orlando, Florida 32802

(407) 423-7656

Respectfully submitted,

'EREMY G. EPSTEIN

Counsel of Record

ALAN S. GOUDISS

JAMES R. WARNOT, JR.

KATHRYN TABNER

DANIEL SCHIMMEL

MICHAEL TREMONTE

SHEARMAN & STERLING

599 Lexington Avenue

New York, New York 10022

(212) 848-4000

Attorneys for Petitioner Ted Herring

APPENDIX

IN THE CIRCUIT

COURT, SEVENTH

STATE OF FLORIDA JUDICIAL CIRCUIT,

< IN AND FOR VOLUSIA

COUNTY, FLORIDA.

TED HERRING

CASE NO.: 81-1957-C

MOTION TO VACATE SENTENCE

1. The Decision In Rogers v. State Is A Constitutional

Change In Law

29. First, Rogers was a “constitutional change of law,” as

required by Witt. The United States Supreme Court has made

clear that, as a matter of federal consitutional law, a state

court's construction of its aggravating factors must “genuinely

narrow the class of persons eligible for the death penalty.” Zant

v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 2742 (1983).

Just recently, in Maynard v. Cartwright, U.S. ___, 108 S.

Ct. 1853 (1988), the United States Supreme Court

reemphasized that a death sentence cannot stand where a state

court fails to apply a limiting construction of a broadly worded

aggravating factor in order to channel and narrow those cases

that will be subject to the death penalty. On its face, the

heightened premeditation aggravating circumstance is so broad

as to encompass, potentially, any premeditated murder.

However, the United States Supreme Court has made clear that

there must be a “narrowing principle” that will focus and limit

the breadth of a factor that would otherwise be

unconstitutionally vague and overboard. Cartwright, 108 S. Ct.

at 1859; see also Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct.

1759 (1980).

30. For this fundamental reason, the decision in Rogers is

one of vital constitutional importance, because it ensures the

legality — under the Eighth and Fourteenth Amendments to the

United States Constitution — of the heightened premeditation

aggravating circumstance. Without a limiting construction of

this sort, the factor would be subject to constitutional attack

under Cartwright and Godfrey. This was no mere “evolutionary

refinement” in the law, Witt, 387 So. 2d at 929: it was a critical,

constitutionally compelled narrowing of a_ potentially

overinclusive and therefore potentially unlawful aggravating

factor. See Herring I, 446 So. 2d at 1058 (Ehrlich, J.,

concurring in part, dissenting in part) (the majority holding

“bring[s] into question the constitutionality of [the heightened

premeditation] aggravating factor and, perhaps, the

constitutionality,as applied, of Florida’s death penalty statute’’)

(emphasis in original).

Il. The Heightened Premeditation Aggravating

Circumstance Was Applied In Violation Of The

Eighth and Fourteenth Amendments

38. While the Florida capital sentencing scheme has been

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

428 U.S. 242, 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, 96 S. Ct. 2909 (1976); see also

Spaziano v. Florida, 468 U.S. 447, 459-60, 104 S. Ct. 3154,

3162 (1984); Eddings v. Oklahoma, 455 U.S. 104, 110-11, 102

S. Ct. 869, 874 (1982) (emphasizing the “twin objectives” of

“measured, consistent application and fairness to the accused”).

39. Thus, even a carefully designed capital sentencing

statute violates the Eighth and Fourteenth Amendments if it is

applied so that the cases in which the death penalty is imposed

are indistinguishable from the cases in which it is not.

Spaziano, 468 U.S. at 460, 104 S. Ct. at 3162 (citing Zant v.

Stephens, 462 U.S. 862, 103 S. Ct. 2733). Accordingly, the

A-2

Supreme Court has “insisted that the channeling and limiting of

the sentencer’s discretion in imposing the death penalty is a

fundamental constitutional requirement for sufficiently

minimizing the risk of wholly arbitrary and capricious action.”

Cartwright, 108 S. Ct. at 1858 (citations omitted).

40. Where, as here, a capital sentencing statute requires the

application of a defined aggravating circumstance to impose a

death sentence, “[p]art 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, 446

U.S. at 428, 100 S. Ct. at 1764 (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.

Cartwright, 108 S. Ct. at 1859 (citing Godfrey, 446 U.S. at 429,

100 S. Ct. at 1765).

41. Herring’s death sentence plainly violates these

constitutional requirements — a fact which the Supreme Court

of Florida has implicitly acknowledged in Rogers, 511 So. 2d

at 533. In Rogers, the Florida Supreme Court recognized that it

had erred in deciding Herring’s direct appeal, and overruled that

decision. /d. Rogers makes clear that Herring’s death sentence

was improper at the time it was imposed.

42. The ninth aggravating circumstance enumerated in

Florida’s capital sentencing statute is that:

[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)(i) (West Supp. 1984).

A-3

No. 75,209

3n the

Supreme Court of Florida

TED HERRING,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM DENIAL OF MOTION TO

VACATE JUDGMENT AND SENTENCE BY THE CIRCUIT

COURT OF THE SEVENTH JUDICIAL CIRCUIT OF

FLORIDA, IN AND FOR VOLUSIA COUNTY

INITIAL BRIEF OF APPELLANT

JON M. WILSON JEREMY G. EPSTEIN

DENNIS P. ORR

FOLEY & LARDNER, DAVID SOROKOFF

VAN DEN BERG, GAY, ALAN S. GOUDISS

BURKE, WILSON

& ARKIN SHEARMAN & STERLING

111 North Orange Avenue 153 East 53rd Street

Suite 1800 New York, New York 10022

Orlando, Florida 32802 (212) 848-4000

(407) 423-7656

Attorneys for Appellant

te: 6 at cet aisha eel? yt RelSE

ARGUMENT

I.

THE ERRONEOUS APPLICATION OF THE

HEIGHTENED PREMEDITATION AGGRA-

VATING 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 vy.

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 [1], 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 [1].”) (citations

omitted). Rogers and Herring II] confirm that Herring is now

entitled to relief on the merits of this claim.

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).

A-5

Where, as here, a capital sentencing statute requires the

application of a defined aggravating circumstance to impose a

death sentence, “[p]art 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).

In Cartwright, 486 U.S. at 356, the Court unanimously

affirmed the vacatur of a death sentence based on the erroneous

application of a statutory aggravating circumstance. At issue

was Oklahoma’s “especially heinous, atrocious, or cruel”

aggravating circumstance. Relying on Godfrey, the 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. /d.

In Proffitt v. Wainwright, 685 F.2d 1227 (11" 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 other 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, thé court held

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

A-6

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 F2d 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. /d. at 1264-65 (quoting

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

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. Moreover, upon an

independent examination of the record, neither this circuit in

Proffitt nor the Supreme Court in Godfrey could distinguish the

facts in the case before it from the many in which the state

courts had not found the particular aggravating circumstances

to apply.

Id. (emphasis supplied). This rationale applies with particular

force to the present case.

A-7

Case No. 75,209

3n the

Supreme Court of Florida

TED HERRING,

Appellant,

v.

STATE OF FLORIDA.

Appellee.

ON APPEAL FROM THE CIRCUIT COURT

OF THE SEVENTH JUDICIAL CIRCUIT, IN

AND FOR VOLUSIA COUNTY, FLORIDA

ANSWER BRIEF OF APPELLEE

Sin lenin eR CER ARRON 5 TPL NEO RASC TRC TS RS UER PEN SE re NAT aC

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

BARBARA C. DAVIS

ASSISTANT ATTORNEY GENERAL

Fla. Bar #410519

210 N. Palmetto Ave.

Suite 447

Daytona Beach, FL 32114

(904) 238-4990

Counsel for Appellee

A-8

Die Bie ek ot

be oe

BO MEDD cP aS Ea AIO AES ANNE CP Se Met te abe

Herring next claims he is entitled to a new sentencing

hearing because the trial court considered an improper

aggravating factor. This argument is without merit since no

aggravating factor was improperly considered, and even if it

were, the sentence of death would remain. See Clemons v.

Mississippi, 4 F.L.W. Fed. S224 Case No. 88-6873 (March 28,

1990). In Herring v. Dugger, 528 So.2d 1176, 1178-79 (Fla.

1988), Herring challenged the effectiveness of appellate counsel

for failing to prevail on the cold and calculated aggravating

circumstance issue. This court rejected that claim, finding not

only that counsel’s performance was not deficient, but aiso that

there was no showing that the alleged deficiency would have

changed the outcome. The state submits that implicit in this

court’s ruling was the ruling that even if the CCP factor were

stricken the death penalty is appropriate where there are three

weighty aggravating factors and one arguable statutory

mitigating factor, age; and nonstatutory mitigation that Herring

had a difficult childhood. Even if an aggravating factor is

stricken, the death penalty should be imposed. See Rogers v.

State, 511 so.2d 526 (Fla. 1987); Rivera v. State, 545 So.2d 864

(Fla. 1989); Lusk v. State, 446 So.2d 1038 (Fla. 1984): Jackson

v. State, 530 So.2d 269 (Fla. 1988). This is particularly true

where age is not necessarily a mitigating factor, Lamb v. State.

532 So.2d 1051 (Fla. 1988), and the nonstatutory mitigating

factors do not mitigate the crime. See Rogers, supra at 534. The

trial court found that the mitigation was not sufficient to block

imposition of the death penalty where a defendant with a prior

violent felony conviction murders an innocent clerk during a

robbery so the clerk will not testify against him. Error, if any,

was harmless beyond a reasonable doubt and would not change

the trial court’s opinion. Rogers, supra at 535: State vy.

DiGuilio, 491 So.2d 1129 (Fla. 1986).

No. 75,209

In the

Supreme Court of Florida

_TED HERRING,

Appellant,

VS.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM DENIAL OF MOTION TO

VACATE JUDGMENT AND SENTENCE BY THE CIRCUIT

COURT OF THE SEVENTH JUDICIAL CIRCUIT OF

FLORIDA, IN AND FOR VOLUSIA COUNTY

REPLY BRIEF OF APPELLANT

JON M. WILSON JEREMY G. EPSTEIN

DENNIS P. ORR

FOLEY & LARDNER, DAVID SOROKOFF

VAN DEN BERG, GAY, ALAN S. GOUDISS

BURKE, WILSON

& ARKIN SHEARMAN & STERLING

111 North Orange Avenue 153 East 53rd Street

Suite 1800 New York, New York 10022

Orlando, Florida 32802 (212) 848-4000

(407) 423-7656

Attorneys for Appellant

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ARGUMENT

I.

HERRING I HAS BEEN “EXPRESSLY OVER-

RULED,” THUS REQUIRING, UNDER THE

UNIQUE CIRCUMSTANCES OF THIS CASE,

THE VACATION OF HERRING’S DEATH

SENTENCE

A. The Heightened Premeditation Aggravating Cir-

cumstance Was Applied In Violation Of The Eighth

x And Fourteenth Amendments

The State devotes much of its Answer Brief to the

remarkable proposition that Herring I has not been overruled,

AB at 10-15, notwithstanding this Court’s clear holdings to the

contrary. In 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), this Court held that “[s]ince 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.” Even if there were some doubt as to the

meaning of this holding, the Court unambiguously restated the

result of Rogers in Herring III: “Since our decision in Herring

[1], this Court, in Rogers vy. State, adopted Justice Ehrlich’s

view and expressly overruled the application of this aggravating

circumstance under the factual situation set forth in Herring

[1].” Herring v. Dugger, 528 So. 2d 1176, 1178 (Fla. 1988)

(citations omitted) (emphasis supplied). It cannot seriously be

disputed that Herring J has now been overruled.

Indeed, the State did not dispute that fact in litigating

Herring’s Federal Petition for a Writ of Habeas C orpus. To the

contrary, the State, in its response to Herring’s Federal Petition,

conceded that

by virtue of the decision in Rogers, 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.

Under these circumstances, the State’s further contention

that the heightened premeditation aggravating circumstance was

applied properly to the facts of this case is demonstrably false.

All of the surrounding circumstances indicated that the shooting

was an accident. At trial, the State offered no evidence to refute

Herring’s statement that he shot the clerk “by mistake.” In his

confession, Herring admitted to four other armed robberies in

the same time period; he never fired his gun or harmed anyone

during any of these incidents. Indeed, prior to his arrest, he had

never been convicted, or even accused, of any violent crime. In

light of Rogers and Herring III, it is clear that the heightened

premeditation aggravating circumstance could not be applied in

any future case involving facts identical to those in Herring J;

put another way, if the State presented precisely the same

evidence at Herring’s resentencing hearing, the trial court could

not impose a sentence of death on the basis of this aggravating

circumstance.

For these reasons, the State’s reliance upon Eutzy v. State,

541 So. 2d 1143 (Fla. 1989), is misplaced. In Eutzy, this Court

held that its decision in Rogers was not a fundamental change

in the law which “should be given retroactive effect,” but was

a mere “evolutionary refinement” in the law of the heightened

premeditation aggravating circumstance. 541 So. 2d at 1147;

see also Harich v. State, 542 So. 2d 980, 982 (Fla. 1989). Here,

Herring does not seek the retroactive benefit of Rogers. In

essence, Herring claims the precise opposite: in holding that

Rogers was not a “jurisprudential upheaval” requiring

retroactive application, this Court recognized that the law of the

heightened premeditation aggravating circumstance had not

changed; Rogers was merely an “evolutionary refinement” in a

body of law that had been applied consistently — with the

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lt Natl ab pale te lat ania cla AIR, So oso,

exception of this case — since well before the decision in

Herring I. See 1B at 13-18 (citing cases). Thus, if anything,

Eutzy supports Herring’s position.

As Herring demonstrated in his Initial Brief, United States

Supreme Court decisions such as Maynard v. Cartwright, 486

U.S. 356, 100 L. Ed.2d 372, 108 S. Ct. 1853 (1988), and

Godfrey v. Georgia, 446 U.S. 420, 429, 64 L.Ed. 2d 398, 100

S. Ct. 1759 (1980), are controlling here.” In overruling Herring

i, this Court recognized that, like the Oklahoma courts in

Cartwright, it “failed to apply its previously recognized

limiting construction of [the heightened premeditation]

aggravating circumstance.” Cartwright, 486 U.S. at 363, 108 S.

Ct. at 1859. However, the mere acknowledgment of error,

without eliminating the heightened premeditation aggravating

circumstance which formed a critical basis for Herring’s death

sentence, does not satisfy well-established constitutional

standards. Under Cartwright and Godfrey, Herring’s sentence

violates the Eighth Amendment because this Court applied a

Statutory aggravating circumstance to the facts of this case

“without some narrowing principle to apply to those facts,” and

thus, “there [is] ‘no principled way to distinguish this case, in

which the death penalty was imposed, from the many cases in

which it was not.’” /d. (citations omitted).

In this regard, the State's reliance upon Brown v. State, 15 F.L.W. S165

(Fla. Mar. 22, 1990), is unavailing. In Brown, this Court concluded that the

heightened premeditation aggravating circumstance was applied correctly

and in accordance with Rogers, and rejected defendant's contention that that

aggravating circumstance was unconstitutionally vague under Cartwright.

Thus, Brown did not address the legality of a death sentence where, as here,

the state courts failed to apply their “previously recognized limiting

construction” of the heightened premeditation aggravating circumstance, nor

may Brown reasonably be read as holding that the Cartwright/Godfrey

principle is applicable only to this state’s “heinous. atrocious, and cruel”

aggravating factor.

B. Herring Is Entitled To A New Sentencing

Hearing Because The Erroneous Application Of

The Heightened Premeditation Aggravating

Circumstance Was Not Harmless Beyond A

Reasonable Doubt

The State argues alternatively that the erroneous application

of that aggravating factor was harmless. In essence, the State

contends that this Court’s refusal to reach the question of

retroactivity in Herring III should be read as an implicit finding

that the error committed in Herring ] was harmless. No fair

reading of Herring II] warrants this conclusion.

The State concedes, as it must, that this Court refused to

reach the issue of the retroactive application of Rogers, or the

merits of Herring’s claim regarding the erroneous application

of the heightened premeditation aggravating circumstance, in

Herring-III. AB at 14. Indeed, the State specifically made the

point in opposing Herring’s Federal Petition, arguing that

Herring’s Rogers claim had “yet to be presented to any state

court.” R.O.A. at 41. Thus, in Herring I/I, this Court did not

address its acknowledgment in Rogers of its error in Herring J,

and certainly did reach the question of whether that error was

harmless, implicitly or otherwise.

Nor can the error at issue be considered harmless beyond a

reasonable doubt. At trial, the jury recommended the death

sentence by a vote of 8 to 4. Elimination of the heightened

premeditation aggravating circumstance, which formed a

critical basis for both the State’s case at sentencing and the trial

court’s ultimate sentencing determination, almost certainly

would have affected, if not altered, the outcome of Herring’s

sentencing hearing. The presence of two substantial mitigating

factors — Herring’s age at the time of the offense and his

difficult life as a child and young adult — reinforces the

conclusion. Cf. Holsworth vy. State, 522 So. 2d 348, 354 (Fla.

1988) (citing Herring 1).

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Herring is entitled to a new sentencing hearing as a matter

of law. See Elledge v. State, 346 So. 2d 998, 1003 (Fla. 1977)

(“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.”); 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). Indeed, 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 number of

mitigating circumstances,” Elledge, 346 So. 2d at 1003, this

Court has consistently ordered new sentencing hearings in

similar cases. See, e.g., Peavy v. State, 442 So. 2d 200, 203

(Fla. 1983) (new sentencing hearing required where elimination

of heightened premeditation aggravating circumstance left

“three aggravating factors to be weighed against two mitigating

factors”); Dudley v. State, 545 So. 2d 857, 860 (Fla. 1989) (new

sentencing hearing ordered where elimination of heightened

premeditation aggravating circumstance left three aggravating

factors and one mitigating factor). The result here should be no

different. Cf Clemons v. Mississippi, 58 U.S.L.W. 4395, 4399-

4400 & n.5 (Mar. 28, 1990) (failure to remand to a sentencing

jury violates the Constitution “if the decision is made

arbitrarily”).

C. Herring’s Claim Relating To The Erroneous

Application Of The Heightened Premeditation

Aggravating Circumstance Is Neither Procedurally

Barred Nor An Abuse Of Process

The State’s final contention, that “[s]ince the validity of the

[heightened premeditation aggravating circumstance] was

raised in prior post-conviction motions, the reassertion of the

claim is an abuse of process” and is procedurally barred, AB at

15, is also incorrect. In essence, the State argues that since

Herring has diligently asserted this claim, only to be denied

relief on the basis of error this Court has now acknowledged,

Herring should be procedurally barred from seeking the relief

to which he indisputably is entitled. Herring respectfully

submits that procedural rules and defenses are inapplicable to

the unique circumstances of this case: Herring cannot be faulted

— let alone penalized — for failing to have convinced the

courts of this state of an error this Court subsequently has

acknowledged.

Herring raised the issue of the improper application of the

heightened premeditation aggravating circumstance in his initial

3.850 Motion. At that time, the State argued, and this Court

agreed, that the issue was procedurally barred because it was

raised on direct appeal. Herring II, 501 So. 2d at 1280. The

State’s argument now, apparently, is that Herring is still barred

even though on direct appeal the issue was decided wrongly.

Such an argument is not only absurd; it makes a mockery of the

principles of due process and fairness that must underlie any

rational criminal justice system. Cf Sanders v. United States,

373 U.S. 1,8, 10 L. Ed. 2d 148, 83 S. Ct. 1068, 1073 (1963)

(“[c]onventional notions of finality of litigation have no place

where life and liberty is at stake and infringement of

constitutional rights is alleged”).

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Moreover, as Herring pointed out in his Initial Brief, the State’s

invocation of procedural bar flies directly in the face of the

State’s position in opposing Herring’s Federal Petition; namely,

that in light of Rogers, “the issue of whether the trial court

would have, or could have, still imposed that same sentence has

yet to be presented to any state court.” R.O.A. at 41. Thus,

even if procedural defenses could properly be invoked in this

case — which they cannot — the State has waived such

defenses. See Smith v.Zant, 887 F.2d 1407, 1438 (11th Cir.

1989) (en banc) (Kravitch, J., concurring in part and dissenting

in part) (“The state selected its defenses and its arguments...

it must accept the ramifications of those choices. Waiver of

claims is not a principle that works only to the detriment of

petitioners.”).