IN THE SUPREME COURT OF FLORIDA

QUENTIN M. TRUEHILL,

Appellant,

vs. CASE NO. SC14-1514

STATE OF FLORIDA,

Appellee.__________________________/

APPEAL FROM THE CIRCUIT COURTIN AND FOR ST. JOHNS COUNTY, FLORIDA

SUPPLEMENTAL BRIEF OF APPELLANTIN LIGHT OF HURST V. FLORIDA

JAMES S. PURDYPUBLIC DEFENDERSEVENTH JUDICIAL CIRCUIT

GEORGE D.E. BURDEN JOHN M. SELDENASSISTANT PUBLIC DEFENDER ASSISTANT PUBLIC DEFENDERFLORIDA BAR NO. 0786438 FLORIDA BAR NO. 0886841444 Seabreeze Boulevard, Suite 210 444 Seabreeze Boulevard, Suite 210Daytona Beach, Florida 32118 Daytona Beach, Florida 32118(386) 254-3758 (386) 254-3758burden.george@pd7.org selden.john@pd7.org ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLANT

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TABLE OF CONTENTS

PAGE NO.

TABLE OF CONTENTS i

TABLE OF CITATIONS ii

STATEMENT OF THE CASE AND FACTS 1

SUMMARY OF SUPPLEMENTAL ARGUMENT 4

ARGUMENT 5

POINT ONE:

THE SENTENCE OF DEATH IMPOSED BY THETRIAL COURT UPON ITS OWN FINDINGS OFFACTS, AND WITH ONLY AN “ADVISORY”VERDICT BY THE JURY HAS BEEN DECLAREDUNCONSTITUTIONAL BY THE UNITED STATESSUPREME COURT IN HURST V. FLORIDA1, ANDMUST BE REVERSED AS A RESULT OF THATRECENT DECISION.

CONCLUSION 20

CERTIFICATE OF FONT 21

DESIGNATION OF E-MAIL ADDRESS 22

1 Hurst v. Florida, ___ U.S. ___, 2016 WL 112683 (slip op.) (January 12,2016)

i

TABLE OF CITATIONS

CASES CITED: PAGE NO.

Alleyne v. United States 570 U.S. ___ (2013). .............................................................................................. 13

Anderson v. State267 So. 2d 8 (Fla. 1972). ................................................................................ 8, 9, 10

Apprendi v. New Jersey530 U.S. 466 (2000)...........................................................................................13, 16

Blakely v. Washington542 U.S. 296 (2004). .............................................................................................. 13

Bollenbach v. United States326 U.S. 607 (1946). .............................................................................................. 11

Bottoson v. Moore833 So. 2d 693 (Fla. 2002). .............................................................................. 10, 13

Boyde v. California494 U.S. 370 (1990). .............................................................................................. 11

Caldwell v. Mississippi472 U.S. 320 (1985). .................................................................................... 4, 10, 11

Combs v. State525 So. 2d 853 (Fla. 1988). .................................................................................... 10

Donaldson v. Sack265 So. 2d 499 (Fla. 1972). ...................................................................................... 8

Furman v. Georgia408 U.S. (1972). ....................................................................................................... 7

ii

TABLE OF CITATIONS

CASES CITED: PAGE NO.

Gregg v. Georgia428 U.S. 153 (1976). ................................................................................................ 9

Hazuri v. State91 So. 3d 836 (Fla. 2012). ................................................................................ 14, 15

Hurst v. Florida___ U.S. ___, 2016 WL 112683 (slip op.). .............................................. 1, 6, 15, 20

Jackson v. State64 So. 3d 90 (Fla. 2011). .......................................................................................... 5

Johnson v. State53 So. 3d 1003 (Fla. 2010). .................................................................................... 14

Kansas v. Carr2016 WL 228342 (2016). ....................................................................................... 16

Ring v. Arizona536 U.S. 584 (2002). ........................................................................................ 10, 13

Spencer v. State615 So. 2d 688 (Fla. 1993). ...................................................................................... 1

State v. Barrow91 So. 3d 826 (Fla. 2012). ...................................................................................... 14

State v. Dixon283 So. 2d 1 (Fla. 1973). ........................................................................................ 18

State v. Gleason329 P. 3rd 1102 (Kansas 2014). ............................................................................. 16

iii

TABLE OF CITATIONS

CASES CITED: PAGE NO.

State v. Steele921 So. 2d 538 (Fla. 2005). .................................................................................... 18

Sullivan v. Louisiana508 U.S. 275 (1993). ........................................................................................ 14, 15

United States v. Booker543 U.S. 220 (2005). .............................................................................................. 13

Ventura v. State2 So. 3d 194 (Fla. 2009). .......................................................................................... 8

Zommer v. State31 So. 3d 733 (Fla. 0000). ...................................................................................... 18

OTHER AUTHORITIES CITED:

Section 775.082, Florida Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Section 775.082(2), Florida Statutes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PassimSection 921.141(3), Florida Statutes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Sections 921.141, et seq., Florida Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 17

Rule 2.516, Florida Rules of Judicial Administration. . . . . . . . . . . . . . . . . . . . . . 21

iv

STATEMENT OF THE CASE AND FACTS

In the time since briefing was completed in this matter and oral argument

was conducted on December 10, 2015, the United States Supreme Court thereafter

issued its opinion in Hurst v. Florida, ___ U.S. ___, 2016 WL 112683 (slip op.)

(January 12, 2016). That opinion declared Florida’s sentencing scheme

unconstitutional as a violation of the Sixth and Fourteenth Amendments. This

Court ordered this supplemental briefing on February 9, 2016.

Appellant was found guilty at a jury trial of first degree premeditated

murder and first degree felony murder (one victim), as well as one count of

kidnaping (IB 5). The penalty phase of the trial, before the same jury, resulted in a

unanimous verdict recommending death after three hours of deliberation (R 2536;

LIII 1022). The verdict form presented to the jury had only two lines - one for the

recommendation of death with blanks for the voting result, and one for the

recommendation of life imprisonment (Id.). It contained no findings concerning

aggravating and mitigating circumstances, or any other information.

A Spencer2 Hearing was held with further evidence presented (LIV 1-71; IB

42). Thereafter, the trial court entered a written sentencing order, making lengthy

findings of fact with respect to each of the aggravating and mitigating factors, and

2 Spencer v. State, 615 So. 2d 688 (Fla. 1993).

1

concluding with the following summary (XIX 3300-3338, at 3336-3337):

In this case, the State has presented strong evidence of sixaggravating circumstances in which this court found that all of themwere proven beyond a reasonable doubt and given GREAT WEIGHTin consideration.

Mr Truehill has presented evidence of five statutorymitigator[s] and 40 non-statutory mitigators. This court found thatthree of the statutory mitigators deserved less than SLIGHT weight,one was categorized as having SLIGHT weight, and the court foundthat one had NO wight. As to the non-statutory mitigators, the courtfound that 20 had less than SLIGHT weight, 4 had MODERATEweight, and 1 had NO weight.

In a global sense of analysis, the statutory aggravating evidencepresented in this case overwhelmingly and substantially outweighs allof the statutory and non-statutory evidence in mitigation combined.

The Court finds that the jury in this case got it right. The juryconsidered the same aggravators and same mitigators (with theexception of Spencer Hearing evidence) and reached the sameconclusion as this court. By a vote of twelve to zero (12-0) the juryrecommended that this court impose the death penalty upon QuentinTruehill for the killing of Vincent Binder.

This was also summarized orally at the brief, sentencing hearing wherein

the court pronounced that “the aggravating evidence presented in this case

overwhelmingly and substantially outweighs all of the statutory and nonstatutory

evidence of mitigation combined” (LV 3-8).

From the outset of voir dire on the first day of trial in this action, the jury

was repeatedly reminded that their penalty phase role was only advisory. As part

2

of the court’s initial qualification of jurors, before any questioning by either party

took place, the court advised the potential jurors concerning the penalty phase

proceedings, should they be necessary. After discussing that the first difference

between the guilt and penalty phases is that the penalty phase does not require

unanimity, the trial court instructed the potential jurors as follows (XXII 197):

Difference number two: When it comes to the death penalty or thepenalty of death or life in prison without the possibility of parole, thejury renders what we call an advisory sentence. What [t]his means isthat the final decision as to what punishment will be imposed restssolely with the judge. However, the judge is required to give yourverdict recommending life or death great weight, so that's differencenumber two.

From that point forward, through to the final instructions at the close of the

penalty phase, the jury was frequently reminded that their recommendation was

only advisory - that they would not bear the burden of deciding life or death, and

that would be left solely to the court.

3

SUMMARY OF SUPPLEMENTAL ARGUMENT

Appellant argues herein that the sentence of death, imposed under statutes,

rules and practices now declared to be unconstitutional, must be reversed. He

asserts, then, that Section 775.082(2), Florida Statutes, requires the commutation

of his sentence to one of life imprisonment without the possibility of parole.

In the alternative, should the Court decline to so order, Appellant argues

two reasons why this defect may not be deemed to be harmless error. First, he

argues that, under Caldwell v. Mississippi, 472 U.S. 320 (1985), the repeated

instructions to the jury of the non-binding nature of their recommendation are

likewise unconstitutional. Second, he argues that the fundamental, “structural”

error presented by the invalidated sentencing process precludes any harmless error

analysis, and require vacating the sentence and remanding this cause for

proceeding consistent with the opinion of this Court.

4

POINT ONE

THE SENTENCE OF DEATH IMPOSED BY THETRIAL COURT UPON ITS OWN FINDINGS OFFACTS, AND WITH ONLY AN “ADVISORY”VERDICT BY THE JURY HAS BEEN DECLAREDUNCONSTITUTIONAL BY THE UNITED STATESSUPREME COURT IN HURST V. FLORIDA3, ANDMUST BE REVERSED AS A RESULT OF THATRECENT DECISION.

Standard of review. Review of a purely legal question is de novo. Jackson

v. State, 64 So. 3d 90, 92 (Fla. 2011).

Argument. Appellant was sentenced to death after the trial court below

found that the mitigating factors did not outweigh the proven, aggravating factors,

based upon its own, independent assessment. This was after finding that the

Appellant was eligible to be sentenced to death based upon the jury's unanimous,

advisory recommendation in favor of death. That recommendation was given

great weight by the sentencing court as well. The advisory verdict did not specify

which, if any, aggravating factors were proven beyond a reasonable doubt, nor did

it specify which mitigators were considered in the final vote. All of this was done

in accordance with the sentencing procedure set forth in Sections 921.141, et seq.,

Florida Statutes, establishing the requirements for imposing the death penalty in

3 Hurst v. Florida, ___ U.S. ___, 2016 WL 112683 (slip op.) (January 12,2016)

5

capital cases. This "sentencing scheme" has now been declared unconstitutional

in Hurst v. Florida, ___ U.S. ___, 2016 WL 112683 (slip op., January 12, 2016),

and it is clear that Appellant's sentence cannot stand as presently imposed.

What the United States Supreme Court held to be unconstitutional in

Florida's death-sentencing scheme was the practice of calling for the court, rather

than the jury, to make those factual findings which are necessary for imposition of

the death penalty (Id.). The Court in Hurst left it to this Court to determine

whether and when the error in imposing a death sentence under the invalidated

scheme could be deemed harmless (2016 WL 112683 at 8). In this brief,

Appellant will argue that any harmless error analysis is precluded for two reasons:

first, because the legislature predetermined the future result of such an outcome in

Section 775.082(2), Florida Statutes, and second, because the jury was instructed

that its verdict could be non-unanimous and not binding on the court - nothing

more than advisory.

SECTION 775.082, Florida Statutes

Appellant is aware that this Court has received numerous briefings in

similar cases, some of them being on short notice, and the Court has already heard

oral arguments in several pending, death penalty cases. Therefore, extensive

historical review will not be presented here, but summarized briefly.

6

Section 775.082(2), Florida Statutes, provides:

In the event the death penalty in a capital felony is heldto be unconstitutional by the Florida Supreme Court orthe United States Supreme Court, the court havingjurisdiction over a person previously sentenced to deathfor a capital felony shall cause such person to be broughtbefore the court, and the court shall sentence such personto life imprisonment as provided in subsection (1).

It is important to the analysis to consider the legislature's use of specific

language. Here, the legislature used the singular - "in a capital felony" - rather

than the plural - "in capital felonies". The latter would connote a global

application to all capital cases. Instead, Appellant argues that the use of the

singular both allows and directs a case-by-case analysis to determine the "as

applied" nature of the result of unconstitutionality. This comports with the

principle that, while only one case would be considered by the high court at a

time, the holding thereof could have pervasive effect in most, if not all death

penalty cases. In this specific case, and for the underlying reasons that the

sentence must be vacated, Section 775.082(2), Florida Statutes mandates the

commutation of the sentence to life imprisonment without the possibility of parole.

This is not the first time that Florida death penalty actions have been ruled

unconstitutional. After the United States Supreme Court issued its decision in

Furman v. Georgia, 408 U.S. 308 (1972), but while rehearing was pending in that

7

case, this court addressed the law now codified as Section 775.082(2), Florida

Statutes in Donaldson v. Sack, 265 So. 2d 499 (Fla. 1972). In that case this court

said:

We have given general consideration to any effect upon the currentlegislative enactment to commute present death sentences to becomeeffective October 1, 1972. The statute was conditioned upon the veryholding which now has come to pass by the U.S. Supreme Court ininvalidating the death penalty as now legislated. It is worded to applyto those persons already convicted without recommendation of mercyand under sentence of death.

265 So. 2d at 505 (emphasis added). Subsequently, after the rehearing petition

was disposed of in Furman, this court, citing Donaldson v. Sack, determined that it

should commute to life all the death sentences imposed under the scheme held to

be unconstitutional in Furman. Anderson v. State, 267 So. 2d 8, 9-10 (Fla. 1972).

Anderson should be applied here. Furman was a 5-4 decision, with five

separate opinions issued by the Justices in the majority. As the dissenting Justices

noted, the narrowest of the majority's opinions were authored by Justices Stewart

and White. 408 U.S. at 375 (Burger, C.J., dissenting.) "When a fragmented Court

decides a case and no single rationale explaining the result enjoys the assent of

five Justices, the holding of the Court may be viewed as that position taken by

those Members who concurred in the judgments on the narrowest grounds."

Ventura v. State, 2 So. 3d 194, 200 (Fla. 2009), citing Gregg v. Georgia, 428 U.S.

8

153, 169 n.15 (1976). In Furman, Justices Stewart and White joined the majority

based on their belief that the death penalty was at that time enforced "wantonly"

and "freakishly" against "a capriciously selected random handful," 408 U.S. at

309-10 (Stewart, J., concurring), on each occasion by a jury acting "in its own

discretion ... no matter what the circumstances." 408 U.S. at 314 (White, J.,

concurring.) The gravamen of Furman was thus that unregulated and

untrammeled decision-making in capital sentencing had the effect of violating the

Eighth Amendment.

The holding of Hurst is that Florida's death-penalty scheme has the effect of

violating the Sixth Amendment guarantee of trial by jury, in that juries' discretion -

guided though it is by post-Furman statutes setting out permissible aggravating

factors - is usurped by judges' having the final say in finding the facts that underlie

a death sentence. In both Furman and Hurst, the Court struck down a

death-penalty scheme because of a serious defect in the process whereby those

who will suffer the penalty are chosen. In both situations, the existing death

penalty was held by this Court to be unconstitutional as currently legislated. In

Anderson this court effectively held that the law now codified as Section

775.082(2), Florida Statutes dictated how to deal with death sentences handed

down under the pre-Furman scheme, since the Legislature had made it clear what

9

its preference would be in the event the scheme was ruled unconstitutional as

currently legislated. This court should follow the precedent it set in Anderson and

commute Appellant's sentence to life in prison.

CALDWELL V. MISSISSIPPI

In the alternative, this court should hold that Hurst mandates reversal of the

death sentence in any case where, as here, Florida's standard, penalty-phase jury

instructions were read. Those instructions refer on over two dozen occasions to

the advisory nature of the jury's upcoming sentencing recommendation, and thus

clearly and repeatedly diminish the jury's sense of responsibility in violation of

Caldwell v. Mississippi, 472 U.S. 320 (1985). This court's holding to the contrary

in Combs v. State, 525 So. 2d 853 (Fla. 1988), has clearly been overtaken by

Hurst. Just after Ring v. Arizona, 536 U.S. 584 (2002), was decided, Justices

Pariente and Lewis, concurring in Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002),

presciently noted that Florida's penalty-phase instructions will need to be

reevaluated, since they "emphasize the jury's advisory role." 833 So. 2d at 723

(Pariente, J., concurring). Accord id. at 731 (Lewis, J., concurring). After Hurst,

it cannot seriously be asserted that the standard instructions read in this case do

not run afoul of Caldwell.

10

In Caldwell, counsel for the State argued to the jury that its capital

sentencing decision was automatically reviewable by the state supreme court. The

United States Supreme Court vacated Caldwell's sentence, firmly holding "it is

constitutionally impermissible to rest a death sentence on a determination made by

a sentencer who has been led to believe that the responsibility for determining the

appropriateness of the defendant's death rests elsewhere." 472 U.S. at 328-29.

That a jury has heard its role diminished by the court, rather than counsel, weighs

even more heavily in favor of reversal. The argument of counsel is "likely viewed

as the statements of advocates," as distinct from jury instructions, which are

"viewed as definitive and binding statements of the law." Boyde v. California, 494

U.S. 370, 384 (1990). "The influence of the trial judge on the jury is necessarily

and properly of great weight, and jurors are ever watchful of the words that fall

from him. Particularly in a criminal trial, the judge's last word is apt to be the

decisive word." Bollenbach v. United States, 326 U.S. 607, 612 (1946). As noted

above, "the last word" in Florida's standard instructions is an exhortation to

carefully consider the jury's sentencing recommendation.

STRUCTURAL VERSUS HARMLESS ERROR

Appellant argues that harmless error cannot be applied to any pending death

penalty even if the verdict was unanimous. The reason for this is that it would be

11

wholly speculative to conclude that the result would have been the same had the

jury been properly instructed that they, as citizens, bore the responsibility of

deciding whether a defendant lives or dies. In this case, the record reflects jury

deliberations lasting three hours - not a long period of time compared to some

decisions, but not so quick as to be a unanimous vote immediately and a verdict

returned in mere minutes. This demonstrates instead that the panel discussed,

debated and deliberated and may have to persuade some holdouts. The “advisory

only” nature of the decision could well be seen as a tool of persuasion that would

not exist if one or more jurors were opposed to death.

It is readily apparent in the Hurst opinion that any discussion concerning the

word unanimity was conspicuously omitted. Appellant argues, however, that the

body of the holding demonstrates the need for unanimity through the repeated

reference to the required "element". It is axiomatic, and the cornerstone of our

criminal justice system that in all prosecutions, each and every element must be

proven to the jury beyond a reasonable doubt. Appellant can find no instance in

criminal law in which an offense may be proven by a unanimous determination of

certain elements but by majority vote of other elements. The reason is plain: if the

jury cannot reach a unanimous conclusion, reasonable doubt exists as to an

element. An extensive discussion of the history and absolute necessity of this

12

requirement is found in the concurring opinions in Bottoson v. Moore, 833 So. 2d

693 (Fla. 2002).

The Court in Hurst explained this very principle with the appropriate

references (slip op. at 4-5):

The Sixth Amendment provides: "In all criminal prosecutions, theaccused shall enjoy the right to a speedy and public trial, by animpartial jury. . . ." This right, in conjunction with the Due ProcessClause, requires that each element of a crime be proved to a jurybeyond a reasonable doubt. Alleyne v. United States, 570 U. S. ___,___ (2013) (slip op., at 3). In Apprendi v. New Jersey, 530 U. S. 466,494 (2000), this Court held that any fact that "expose[s] the defendantto a greater punishment than that authorized by the jury's guiltyverdict" is an "element" that must be submitted to a jury. In the yearssince Apprendi, we have applied its rule to instances involving pleabargains, Blakely v. Washington, 542 U. S. 296 (2004), sentencingguidelines, United States v. Booker, 543 U. S. 220 (2005), criminalfines, Southern Union Co. v. United States, 567 U. S. ___ (2012),mandatory minimums, Alleyne, 570 U. S., at ___, and, in Ring, 536 U.S. 584, capital punishment.

The Court went on to explain this elemental failing, saying: "Florida does

not require the jury to make the critical findings necessary to impose the death

penalty" (Id. at 5-6). For a jury to find a fact, Appellant argues, they must

unanimously agree that there is no reasonable doubt concerning that fact. Here,

the jury was unanimous, but only in a recommendation that was devoid of the

requisite findings of fact to satisfy the Supreme Court’s mandate. This Court

cannot speculate which factors in aggravation and mitigation the jurors might have

13

found unanimously and which not. For this reason, Appellant argues that his

“advisory” verdict, even though unanimous, is further unlawful, over and above

the other failings of the statute, and constitutes "structural error".

The Supreme Court holds that certain categories of error are "structural" and

accordingly not subject to harmless-error analysis. E.g., Sullivan v. Louisiana,

508 U.S. 275 (1993). This court engages in similar analysis, in cases addressing

"per se reversibility." See Johnson v. State, 53 So. 3d 1003, 1007 (Fla. 2010).

This court reverses per se when the appellate court "would have to engage in pure

speculation in order to attempt to determine the potential effect of the error on the

jury," as when a jury was not instructed on a lesser included offense one step from

the charged offense, or when a jury receives extraneous information during

deliberations. Id. at 1008. In Johnson, this court held it could not, without

speculating, ascertain the effect of a pre-emptive jury instruction stating that no

testimony could be read back. As this court has since clarified, similar speculation

is not called for where a court declines to read back specific testimony. Cf. Hazuri

v. State, 91 So. 3d 836, 846-47 (Fla. 2012) with State v. Barrow, 91 So. 3d 826,

835 (Fla. 2012). Harmless error analysis is both practical and appropriate in the

latter situation. Hazuri at 847.

14

In Sullivan v. Louisiana, the Supreme Court applied its "structural error"

rule where the jury was misinstructed as to the essence of the reasonable doubt

standard. In that circumstance the Court ruled that the jury's findings are vitiated

altogether, and thus "there has been no jury verdict within the meaning of the

Sixth Amendment" to which harmless-error analysis could be applied. 508 U.S. at

280. As this court did in Hazuri and Barrow, the Supreme Court in Sullivan

distinguished less-comprehensive errors, holding that where an impermissible

instruction affects a single element of a single offense the appellate court may

well, as a practical matter, be able to determine whether the verdict was likely

attributable to the error.

The error in this case - instructing the jury at length that its contribution to

the proceedings would be merely advisory - is analogous to the errors committed

in Sullivan and Johnson. After Hurst, it is for the jury in capital cases to

determine not only whether aggravating factors are present, but also whether the

showing in mitigation outweighs the aggravating factors. Hurst, 2016 WL 112683

at *6. Here, this Court cannot possibly speculate that the unanimous jury

recommendation of death, with no specific factors found and weighed, would

remain unanimous were it not for this constitutional defect.

15

In other, very recent cases in which the jury was unanimous the State has

argued that Sixth Amendment interests are not implicated in any Florida capital

case where the defendant has a conviction for a prior violent felony, or was

convicted of a violent felony contemporaneously with the murder. It reasons that

in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court excluded the existence of

a prior conviction from those facts which a jury, as distinct from the sentencing

judge, must make in support of an enhanced sentence. The State further asserts

that the only actual fact needed in Florida to make a defendant eligible for the

death penalty is the existence of a single aggravating factor, and that all other

findings made in a capital case are in fact global judgments rather than fact-based

findings governed by Apprendi. In reaching that position, the State has relied on

language from the Court's recent decision in Kansas v. Carr, 2016 WL 228342

(2016).

In Carr, the Court referred to the "eligibility phase" and the "selection

phase" featured in the Kansas death-sentencing scheme. In State v. Gleason, 329

P. 3rd 1102 (Kansas 2014), the decision overturned in Carr, the Kansas Supreme

Court explained that juries in that state must find beyond a reasonable doubt (a)

that the charged aggravating circumstances exist, and (b) that their existence is not

outweighed by any mitigating circumstances. 329 P. 3rd at 1141. In that scheme,

16

there is a clear dichotomy between an initial, factual "eligibility" finding (one

aggravator exists) and a further, less specific finding "selecting" the defendant for

the death penalty, and the State extrapolates that such a dichotomy must exist in

Florida as well. However, Florida's capital sentencing statute does not fit that

mold. Instead, Section 921.141, Florida Statutes, dictates that the required

findings are "that sufficient aggravating circumstances exist," and that there are

insufficient mitigating circumstances to outweigh them. 92l.141(3) (emphasis

added). Thus Florida intertwines the factual findings it requires to support a death

penalty with the "judgment calls" that decision requires.

Florida's standard jury instructions do not, any more clearly than the statute,

set out a dichotomy between an initial factual finding governed by Apprendi and a

later global determination which is not so governed. First the instructions tell the

jurors they are to advise the court of their ultimate recommendation based on their

determinations about sufficient aggravating circumstances and whether they are

outweighed; then the instructions set out general rules for weighing the evidence

and general rules for deliberation; then they instruct that at least one aggravating

circumstance must be proven beyond a reasonable doubt; then they return to the

duty to find sufficient aggravators; then they instruct on mitigation, pointing out

the lesser burden of proof on the defense; then they instruct on victim impact; then

17

they again return to the duty to find at least one aggravator that is in the jurors'

minds sufficient. Fla. Std. Jury Instr. (Crim.) 7.11, West's Florida Criminal Laws

and Rules (2015) at J-72 to J-77.

In other, recent and currently pending cases, the State has further relied on

State v. Dixon, 283 So. 2d 1 (Fla. 1973), where this court stated that death is

presumed the appropriate sentence where at least one aggravating factor is found

(Id. at 9). As Justice Pariente has pointed out, that statement of law is inconsistent

with more recent authority, which holds that the jury is never compelled or

required to return a recommendation of death. Zommer v. State, 31 So. 3d 733,

756 (Fla. 2010) (Pariente, J., specially concurring), citing the standard jury

instructions approved in 2009 and State v. Steele, 921 So. 2d 538, 543 (Fla.

2005). Apprendi and its progeny, including Hurst, therefore govern the findings

that the Court in Hurst pointed out must be made in Florida, i.e., "that sufficient

aggravating circumstances exist and that there are insufficient mitigating

circumstances to outweigh the aggravating circumstances." Hurst, slip op. at *6,

citing Section 921.141(3), Florida Statutes.

Should the Court decline to commute the Appellant's sentence to life

imprisonment based upon Section 775.082(2), Florida Statutes, then a new

sentencing phase must be ordered in this case to satisfy the Eighth Amendment

18

interest implicated by the Caldwell v. Mississippi error identified above, as well as

the Sixth Amendment interests addressed in Ring and in Hurst.

19

CONCLUSION

As limited to this specific issue, based upon the foregoing cases, authorities,

policies, and arguments, Appellant respectfully requests this Honorable Court to

reverse and vacate the sentence of death as unconstitutionally imposed pursuant to

Hurst v. Florida, ___ U.S. ___, 2016 WL 112683 (slip op.) (January 12, 2016),

and commute the sentence to life in prison, pursuant to Section 775.082(2),

Florida Statutes. In the further alternative, the Court should remand the case for

proceedings consistent with its opinion herein.

Respectfully submitted,

JAMES S. PURDYPUBLIC DEFENDERSEVENTH JUDICIAL CIRCUIT

/s/ George D.E. Burden /s/ John M. Selden

GEORGE D.E. BURDEN JOHN M. SELDENASSISTANT PUBLIC DEFENDER ASSISTANT PUBLIC DEFENDERFLORIDA BAR NO. 0786438 FLORIDA BAR NO. 0886841444 Seabreeze Boulevard, Suite 210 444 Seabreeze Boulevard, Suite 210Daytona Beach, Florida 32118 Daytona Beach, Florida 32118(386) 254-3758 (386) 254-3758burden.george@pd7.org selden.john@pd7.org Attorney for Appellant Attorney for Appellant

20

CERTIFICATE OF FONT

I hereby certify that the size and style of type used in this brief is point

proportionally spaced Times New Roman, 14 pt.

DESIGNATION OF E-MAIL ADDRESS

I HEREBY DESIGNATE the following e-mail addresses for purposes of

service of all documents, pursuant to Rule 2.516, Florida Rules of Judicial

Administration, in this proceeding: appellate.efile@pd7.org (primary),

burden.george@pd7.org and selden.john@pd7.org (secondary).

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing has been filed electronically to the

Florida Supreme Court, Supreme Court Building, 500 South Duval Street,

Tallahassee, Florida 32399-1925, at www.myflcourtaccess.com; delivered

electronically to the Office of the Attorney General, 444 Seabreeze Boulevard,

fifth floor, Daytona Beach, Florida 32118, at capapp@myfloridalegal.com and

vivian.singleton@myfloridalegal.com; and a true and correct copy thereof

delivered by mail to Mr. Quentin M. Truehill, Inmate #148538, Florida State

Prison, 7819 Northwest 228th Street, Raiford, Florida 32026-3000, on this 25th

day of February, 2016.

/s/ George D.E. Burden /s/ John M. Selden

GEORGE D.E. BURDEN JOHN M. SELDENASSISTANT PUBLIC DEFENDER ASSISTANT PUBLIC DEFENDER

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