Assy v. State of Florida
Assy v. State of Florida
Assy v. State of Florida
____________
No. SC16-223
____________
MARK JAMES ASAY,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC16-102
____________
MARK JAMES ASAY,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
____________
No. SC16-628
____________
MARK JAMES ASAY,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
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window of Robbies truck that he and his friends were looking for
prostitutes.
After spotting Booker standing by Robbies truck, Asay told
Bubba to pull up next to the truck. Asay immediately got out of his
truck, proceeded to Robbies truck, and told Robbie You know you
aint got to take no s--t from these f---ing niggers. Although Robbie
told Asay that everything is cool, Asay began to point his finger in
Bookers face and verbally attack him. When Booker told him Dont
put your finger in my face, Asay responded by saying F--k you,
nigger and pulling his gun from his back pocket, shooting Booker
once in the abdomen. Booker grabbed his side and ran. According to
the medical examiner, the bullet perforated the intestines and an artery
causing internal hemorrhaging. Bookers body was later found under
the edge of a nearby house.
Robbie drove away immediately after the shooting. Asay
jumped into the back of his truck, as Bubba drove off. When Asay
got into the cab of the truck, Bubba asked him why he shot Booker.
Asay responded, Because you got to show a nigger who is boss.
When asked if he thought he killed Booker, Asay replied, No, I just
scared the s--t out of him.
Bubba testified that after the shooting, Asay and Bubba
continued to look for prostitutes. According to Bubba, he saw
Renee who he knew would give them oral sex. It appears that at the
time neither Bubba nor Asay was aware that Renee was actually
Robert McDowell, a black man dressed as a woman. According to
Bubba, he negotiated a deal for oral sex for them both. Bubba drove
the truck into a nearby alley. McDowell followed. Bubba testified
that McDowell refused to get into the truck with them both, so Asay
left the truck and walked away to act as a lookout while Bubba and
McDowell had sex. As McDowell started to get into the truck with
Bubba, Asay returned, grabbed McDowells arm, pulled him from the
truck and began shooting him. McDowell was shot six times while he
was backing up and attempting to get away. Asay jumped back in his
truck and told Bubba to drive away. When asked why he shot
McDowell, Asay told Bubba that he did it because the bitch had beat
him out of ten dollars on a blow job. McDowells body was found
on the ground in the alley soon after the shots were heard. According
to the medical examiner, any of three wounds to the chest cavity
would have been fatal.
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McDowell murder only: that the murder was committed in a cold, calculated,
premeditated manner (CCP). Id. As to both murders, the trial court found Asays
age of twenty-three at the time of the murders to be the only mitigation for his
offenses. Id.
On direct appeal, Asay raised seven issues.2 This Court summarily denied
the first four claims and also found, after some discussion, that no relief was
warranted as to the remaining three claims. Id. at 612 n.1, 613-14. On June 21,
1991, this Court denied Asays motion for rehearing, and the United States
Supreme Court denied certiorari on October 7, 1991. Asay v. Florida, 502 U.S.
895 (1991).
In 1993, Asay filed a motion for postconviction relief3 pursuant to Florida
Rule of Criminal Procedure 3.850 and an amended motion, raising twenty claims.
2. The issues raised on appeal were (1) the trial court erred by allowing
racial prejudice to be injected into the trial; (2) the trial court erred in failing to
advise Asay of his right to represent himself and to conduct an inquiry when Asay
asked to discharge court-appointed counsel; (3) the trial court erred in denying
Asays pro se motion for continuance of the penalty phase of the trial to enable him
to secure additional mitigation witnesses; (4) the prosecution improperly
diminished the jurys role in sentencing; (5) the trial court judge erred by failing to
grant his motion for judgment of acquittal on count I of the indictment charging
him with the first-degree premeditated murder of Robert Lee Booker; (6) the trial
court erred in finding CCP established as to the McDowell murder; and (7) Asays
death sentence was disproportionate. Id. at 612 n.1, 613-14.
3. While his postconviction motion was pending, Asayalong with other
capital defendantsappealed the Florida Board of Executive Clemencys denial of
Asays public records requests, but this Court held that the obligation of the State
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Asay v. State (Asay II), 769 So. 2d 974, 977-78 & n.5 (Fla. 2000).4 He also filed a
motion to disqualify the trial judge from presiding over the postconviction
proceedings, primarily based on comments the judge made during Asays 1988
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trial. Asay II, 769 So. 2d at 978. The trial judge denied the motion to disqualify
and, after holding a Huff5 hearing, summarily denied most of Asays claims,
granting an evidentiary hearing on only the ineffective assistance of trial counsel
claims. Id. Following the evidentiary hearing, the trial court denied relief on those
claims as well. Id.6 Asay appealed the denial of relief, raising six issues.7 We
denied the appeal, affirming the trial courts denial of postconviction relief. Id. at
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989. We denied Asays motion for rehearing on October 26, 2000. Asay then
filed a petition for writ of habeas corpus in this Court on October 25, 2001, raising
five claims.8 Asay v. Moore (Asay III), 828 So. 2d 985, 989 n.8 (Fla. 2002). We
denied relief on June 13, 2002, and denied Asays motion for rehearing on October
4, 2002. Id. at 993.
On October 17, 2002, Asay filed his first successive postconviction motion,
in which he contended Floridas capital sentencing procedure was unconstitutional
pursuant to Ring v. Arizona, 536 U.S. 584 (2002). The circuit court denied the
motion on February 23, 2004. Asay appealed, and on December 20, 2004, this
Court affirmed the circuit courts order. Asay v. State (Asay IV), 892 So. 2d 1011
(Fla. 2004) (table). Asay filed a petition for writ of certiorari, which the Supreme
Court denied on November 2, 2009. McNeil v. Asay, 558 U.S. 1007 (2009).
On February 11, 2005, Asay filed a petition for a writ of habeas corpus in
the United States District Court for the Northern District of Florida, raising eleven
8. The claims raised were (1) appellate counsel was ineffective in failing to
argue that Asay was absent during critical stages of the proceedings; (2) Asays
death sentences are unconstitutional because Asay was impermissibly prevented
from presenting mitigation, the trial court failed to consider or weigh mitigation,
and the prosecutor made impermissible arguments regarding aggravation; (3)
appellate counsel was ineffective for failing to raise the trial courts failure to give
the requested instruction on CCP; (4) appellate counsel was ineffective for failing
to argue that the penalty phase instructions improperly shifted the burden of proof
regarding the appropriateness of a life sentence; and (5) Floridas capital
sentencing statute and jury instructions are unconstitutional. Id.
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claims. 9 Asay v. Secy, Fla. Dept of Corr. (Asay V), No. 3:05-cv-147-J-32PDB,
2014 WL 1463990, *6 (M.D. Fla. April 14, 2014). On April 14, 2014, the federal
district court found that Asay was not entitled to relief and denied the petition. Id.
at *28. A certificate of appealability was entered as to whether Asay received
ineffective assistance during the penalty phase because his counsel failed to
investigate, obtain, and present additional mitigating evidence. Id. On April 28,
2014, Asay filed an appeal in the Eleventh Circuit Court of Appeals, but on July 8,
2014, the appeal was voluntarily dismissed.
9. Asay raised the following claims: (1) Asays Sixth Amendment rights
were violated when, during the trial, Asay informed the trial court that he wanted
to terminate the services of defense counsel, yet the trial court neither provided
substitute counsel nor advised Asay that he had the right to proceed pro se; (2)
Asays counsel was ineffective for delegating the investigation of Asays case to
an investigator and failing to supervise or follow up on that investigators work
product; (3) Asays counsel was ineffective for failing to meaningfully consult
with Asay, failing to obtain and use relevant information about Asay and dropping
all defense preparation when he was informed that Asay had confessed to the
defense investigator; (4) Asays counsel was ineffective for failing to meaningfully
prepare for trial; (5) Asays counsel was ineffective for believing that a first degree
murder conviction in Asays case was impossible and therefore failing to prepare
for the trial and penalty phase, and laboring under the misconception that there
could be no defense if Asay confessed; (6) racial evidence and argument tainted
the trial process and denied Asay his right to a fair trial; (7) a State witness,
Thomas Gross, admitted after trial that his testimony that Asay was a racist was a
lie, that his testimony was coached, and the prosecutor suborned this conduct; (8)
Asays counsel was ineffective for advising Asay not to testify at trial and at
the Spencer hearing; (9) Asays counsel was ineffective for conceding Asays guilt
during closing argument; (10) Floridas capital sentencing scheme is
unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002); and (11) defense
counsel failed to convey an offer of a plea to second degree murder. Id. at *1.
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Brady,10 and Strickland11 claims; (3) Asay was denied due process when the circuit
court considered extra record material and conducted an ex parte hearing with the
State; and (4) Asay was denied due process, equal protection, and his right to
effective collateral representation under Spalding v. Dugger, 526 So. 2d 71 (Fla.
1988), when his death warrant was signed while no registry counsel was in place
and had not been in place for over a decade. Asay also filed a habeas petition
before this Court, raising the same issue as in claim three above; thus, the habeas
petition will be addressed in our discussion of Asays third postconviction claim.
Additionally, Asay filed a petition for a writ of habeas corpus alleging that he is
entitled to relief pursuant to chapter 2016-13, Laws of Florida, which requires that
at least ten jurors agree with the recommendation of death before a sentence of
death can be imposed. We deny Asays petition based on our decision in Perry v.
State, 41 Fla. L. Weekly S449 (Fla. Oct. 14, 2016), that chapter 2016-13, Laws of
Florida, is unconstitutional and based on our decision today that Hurst cannot be
applied retroactively to Asay.
I. CONSTITUTIONALITY UNDER HURST v. FLORIDA
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Asay argues that his death sentence is unconstitutional under the United
States Supreme Courts decision in Hurst v. Florida. In that case, the Supreme
Court reversed our decision in Hurst v. State, 147 So. 3d 435 (Fla. 2014), which
denied a Ring claim based on prior Supreme Court precedent that upheld Floridas
capital sentencing scheme, and held that Floridas capital sentencing scheme [is]
unconstitutional [because the] Sixth Amendment requires a jury, not a judge, to
find each fact necessary to impose a sentence of death. Hurst v. Florida, 136 S.
Ct. at 619.12 On remand from the United States Supreme Court, we held that the
Supreme Courts decision in Hurst v. Florida requires that all the critical findings
necessary before the trial court may consider imposing a sentence of death must be
found unanimously by the jury. Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016). We
also held that in order for the trial court to impose a sentence of death, the jurys
recommended sentence of death must be unanimous. Id. Asay contends that he is
entitled to retroactive application of Hurst v. Florida, and thus, his death sentences
must be vacated. For the reasons explained below, we conclude that Hurst v.
Florida should not apply retroactively to cases that were final when Ring was
decided.
12. Asay raised Ring claims in both his first successive motion for
postconviction relief and his subsequent habeas petition before the U.S. District
Court for the Middle District of Florida. He did not raise a Sixth Amendment
challenge to his death sentence at any time prior to Ring.
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that the Arizona court was bound by the Supremacy Clause to apply Walton, the
Supreme Court overruled only Waltonnot Hildwin. Ring, 536 U.S. at 596.
In determining that Arizonas capital sentencing scheme violated the Sixth
Amendment, the Supreme Court rejected Arizonas claim that because the capital
sentencing statute prescribed death or life imprisonment for first-degree murder,
Ring had been sentenced to no more than the maximum punishment authorized by
the jury verdict. Id. at 604. The Court instead found that the required finding of
an aggravated circumstance exposed Ring to a greater punishment than that
authorized by the guilty verdict. Id. at 586 (citations and brackets omitted). The
Supreme Court noted that if this argument prevailed, Apprendi would be reduced
to a meaningless and formalistic rule of statutory drafting. Id. In addition, the
Court rejected a distinction between elements of an offense and sentencing factors.
Id. In a dissent by Justice OConnor, in which Chief Justice Rehnquist joined,
Justice OConnor stated her concern that prisoners in states like Florida would
seize on the Ring holding to challenge their sentences, despite the fact that those
sentences involve a hybrid sentencing scheme. Id. at 621 (OConnor, J.,
dissenting).
Once Ring was issued, this Court was required to determine its application
to Florida since, at the time, the Supreme Court had initially stayed the execution
of two Florida inmates and then lifted the stays after Ring was decided without
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13. See Bottoson v. State, 443 So. 2d 962, 963 (Fla. 1983) (affirming
conviction and sentence).
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Supreme Courts repeated support of Floridas capital sentencing scheme in preRing cases, including Hildwin, which held that the Sixth Amendment does not
require that the specific findings authorizing the imposition of the sentence of
death be made by the jury. Id. at 620-21 (quoting Hildwin, 490 U.S. at 640-641).
However, the Supreme Court also noted that since its decision in Apprendi, it has
consistently held that any fact that expose[s] the defendant to a greater
punishment than that authorized by the jurys guilty verdict is an element that
must be submitted to a jury. Id. at 621 (quoting Apprendi, 530 U.S. at 494). The
Court then held that the analysis in Ring applied equally to Floridas statutory
scheme:
The analysis the Ring Court applied to Arizonas sentencing
scheme applies equally to Floridas. Like Arizona at the time of Ring,
Florida does not require the jury to make the critical findings
necessary to impose the death penalty. Rather, Florida requires a
judge to find these facts. Fla. Stat. 921.141(3). Although Florida
incorporates an advisory jury verdict that Arizona lacked, we have
previously made clear that this distinction is immaterial: It is true
that in Florida the jury recommends a sentence, but it does not make
specific factual findings with regard to the existence of mitigating or
aggravating circumstances and its recommendation is not binding on
the trial judge. A Florida trial court no more has the assistance of a
jurys findings of fact with respect to sentencing issues than does a
trial judge in Arizona. Walton v. Arizona, 497 U.S. 639, 648 (1990);
accord, State v. Steele, 921 So. 2d 538, 546 (Fla. 2005) ([T]he trial
court alone must make detailed findings about the existence and
weight of aggravating circumstances; it has no jury findings on which
to rely).
As with Timothy Ring, the maximum punishment Timothy
Hurst could have received without any judge-made findings was life
in prison without parole. As with Ring, a judge increased Hursts
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State, 904 So. 2d 400, 409 (Fla. 2005), which held that Ring does not apply
retroactively. While that decision would seem to answer the question presented
heresince Hurst v. Florida derives from Ringa retroactivity analysis hinges on
an accurate understanding of the underlying decision, and in Johnson, this Court
did not fully apply the holding of Ring because we were attempting to reconcile
the United States Supreme Courts holdings in Ring and Hildwin.
In addressing whether Ring should apply retroactively, this Court announced
in Johnson that despite the federal courts use of Teague v. Lane, 489 U.S. 288
(1989), to determine retroactivity, this Court would continue to apply our
longstanding Witt14 analysis, which provides more expansive retroactivity
standards than those adopted in Teague. Johnson, 904 So. 2d at 409 (emphasis
added).15 However, our application of Witt v. State, 387 So. 2d 922 (Fla. 1980),
was significantly impacted by our attempt to reconcile the holding of Ring with the
holding of Hildwin. First, we relied on the Supreme Courts Teague analysis in
Schriro v. Summerlin, 542 U.S. 348 (2004), finding that the decision in Ring was
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not a substantive change to the law, but rather a prototypical procedural rule[], in
that it regulates the manner in which culpability is determined but does not alter
the range of conduct or class of persons that the law punishes. Johnson, 904 So. 2d
at 409 (quoting Summerlin, 542 U.S. at 353). However, such analysis derives
from the much narrower Teague test, which utilizes completely different factors
from Floridas Witt test.
In addition, our retroactivity analysis in Johnson hinged upon our
understanding of Rings application to Floridas capital sentencing scheme at that
time. Thus, we did not treat the aggravators, the sufficiency of the aggravating
circumstances, or the weighing of the aggravating circumstances against the
mitigating circumstances as elements of the crime that needed to be found by a
jury to the same extent as other elements of the crime. Specifically, because we
were still bound by Hildwin, we did not properly analyze the purpose of the new
rule in Ring, which was to protect the fundamental right to a jury in determining
each element of an offense. With the issuance of Hurst v. Florida, in which the
United States Supreme Court overruled its decision in Hildwin, we conclude that
this Court must now reconsider its prior decision in Johnson. Accordingly, we
now turn to a retroactivity analysis in this case.
Applying cases retroactively is a thorny issue, requiring that [this Court]
resolve a conflict between two important goals of the criminal justice system
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ensuring finality of decisions on the one hand, and ensuring fairness and
uniformity in individual cases on the other within the context of post-conviction
relief from a sentence of death. Witt, 387 So. 2d at 924-25. On the one hand, this
Court has recognized the vast importance of finality in the justice system:
It has long been recognized that, for several reasons, litigation must, at
some point, come to an end. In terms of the availability of judicial
resources, cases must eventually become final simply to allow
effective appellate review of other cases. There is no evidence that
subsequent collateral review is generally better than contemporaneous
appellate review for ensuring that a conviction or sentence is just.
Moreover, an absence of finality casts a cloud of tentativeness over
the criminal justice system, benefiting neither the person convicted
nor society as a whole.
Id. at 925. Yet, on the other hand, ensuring fairness and uniformity is an
underpinning of the same justice system:
[S]ociety recognizes that a sweeping change of law can so drastically
alter the substantive or procedural underpinnings of a final conviction
and sentence that the machinery of post-conviction relief is necessary
to avoid individual instances of obvious injustice. Considerations of
fairness and uniformity make it very difficult to justify depriving a
person of his liberty or his life, under process no longer considered
acceptable and no longer applied to indistinguishable cases.
Id. In any retroactivity analysis, this Court must determine where finality yields to
fairness based on a change in the law. To apply a newly announced rule of law to
a case that is already final at the time of the announcement, this Court must
conduct a retroactivity analysis pursuant to the dictates of Witt.
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Under Witt, a change in the law does not apply retroactively unless the
change: (a) emanates from this Court or the United States Supreme Court, (b) is
constitutional in nature, and (c) constitutes a development of fundamental
significance. Id. at 931. To be a development of fundamental significance, the
change in law must place beyond the authority of the state the power to regulate
certain conduct or impose certain penalties, or, alternatively, be of sufficient
magnitude to necessitate retroactive application as ascertained by the three-fold
test of Stovall16 and Linkletter.17 Id. at 929. The Stovall/Linkletter test requires
courts to analyze three factors: (a) the purpose to be served by the rule, (b) the
extent of reliance on the prior rule, and (c) the effect that retroactive application of
the new rule would have on the administration of justice. Id. at 926; Johnson, 904
So. 2d at 408.
As with Ring, it is not in dispute that Hurst v. Florida satisfies the first two
prongs of Witt because it emanates from the Supreme Court and is constitutional in
nature. However, the third prong turns entirely on whether the decision represents
a development of fundamental significance or is of sufficient magnitude.
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Again, like Ring, this last prong turns on the Stovall/Linkletter test, which we
address below.
1. Purpose of the New Rule
The first factor under the Stovall/Linkletter test is the purpose to be served
by the new rule. Witt, 387 So. 2d at 926. In this case, the purpose of the new rule
is to ensure that a criminal defendants right to a jury is not eroded and encroached
upon by sentencing schemes that permit a higher penalty to be imposed based on
findings of fact that were not made by the jury. See Hurst, No. SC12-1947, slip
op. at 21-23 (discussing the necessity of a unanimous jury decision regarding the
finding of aggravators and whether those aggravators outweigh any mitigation).
The importance of the right to a jury trial has been recognized since this
countrys inception and is the only right to appear in both the body of the
Constitution and the Bill of Rights. Art. III, 2, U.S. Const.; U.S. Const. amend.
VI. In fact, in the very line of cases at issue here, the United States Supreme Court
has recognized that the right to a jurys determination of all the elements of an
offense is of utmost importance, thereby changing its previous position that
sentencing considerations were an exception to the rule. See Apprendi, 530 U.S.
at 476 (At stake in this case are constitutional protections of surpassing
importance.); see also Ring, 536 U.S. at 609 (Because . . . aggravating factors
operate as the functional equivalent of an element of a greater offense, the Sixth
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Id. at 8. Ultimately, the Court upheld Floridas revised capital sentencing statute
as constitutional under the Eighth Amendment.
Rather than viewing aggravators as part of the jurys ultimate
determinationsuch as guilt or innocence, which has always been recognized as
within the Sixth Amendment right to trial by jurystates treated aggravators as
sentencing factors and gave the trial judge, with mandatory review by this Court,
the ultimate responsibility for finding them. Our sentencing scheme was
challenged and upheld by the United States Supreme Court in Hildwin and Walton,
where the Supreme Court specifically rejected broad challenges to Floridas and
Arizonas sentencing schemes under the Sixth Amendment, and later in Spaziano,
where Floridas statute was also upheld against an Eighth Amendment challenge.
Over time, however, various legislatures extended a trial courts authority to
make factual determinations in a way that exposed defendants to higher sentences
than authorized by a jurys verdict alone, amending criminal statutes in noncapital
cases to include sentencing factors where the judge found specified facts after
the jurys verdict to increase the sentence. See, e.g., Apprendi, 530 U.S. at 476-87
(setting forth the history of legislatures providing trial judges with the authority to
make factual findings on matters classified as sentencing factors). Thus, in cases
where a defendant was brandishing a firearm or committed a crime based on hate,
a higher sentence was authorized if the trial judge made certain factual findings. In
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Apprendi, the United States Supreme Court held for the first time that a state law
was unconstitutional when it permitted the judgerather than the juryto make a
factual finding as to whether a defendant committed a crime to intimidate the
victim based on a particular characteristic the victim possessed and thus impose a
greater punishment based on this finding. Id. at 496. However, in reaching this
decision, the Supreme Court distinguished capital cases from its holding in
Apprendi to the extent that capital cases permitted a judge to find specific
aggravating factors before imposing a sentence of death. Id. at 497.
This Court relied upon that precedent, which had categorically rejected Sixth
Amendment challenges to the capital sentencing statute and held Floridas capital
sentencing scheme to be constitutional. See Hildwin, 490 U.S. 638. Further, while
the reasoning of Apprendi appeared to challenge the underlying prior reasoning of
Walton and similar cases, the United States Supreme Court expressly excluded
death penalty cases from its holding. Apprendi, 530 U.S. at 496 ([T]his Court has
previously considered and rejected the argument that the principles guiding our
decision today render invalid state capital sentencing schemes requiring judges,
after a jury verdict holding a defendant guilty of a capital crime, to find specific
aggravating factors before imposing a sentence of death.). Based on the whole of
the jurisprudence at the time Asays conviction and sentence were affirmed on
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direct appeal, this Court and the State of Florida had every reason to believe that its
capital sentencing scheme was constitutionally sound.18
This prong does not only focus on whether this Courts reliance on the old
rule was in good faith, but also requires us to consider the breadth of our prior
reliance. In this context, this Courts reliance on the old rule has spanned decades
worth of capital cases, with 386 inmates currently residing on death row and 92
executions carried out since 1976. See Fla. Dept of Corrections, Death Row Fact
Sheet, available at http://www.dc.state.fl.us/oth/deathrow/index.html (under
Death Row heading, click on link to Death Row List and Execution List)
(last visited October 13, 2016). As this Court stated in Johnson, That Florida has
reasonably relied on its longstanding capital sentencing scheme is an important
factor weighing against the retroactive application of Ring. Johnson, 904 So. 2d
at 411; see also Williams v. State, 421 So. 2d 512, 515 (Fla. 1982) (It was
18. In fact, our reliance on the old rule was well-placed up until the decision
in Ring, after which point this Court struggled with how Ring should be properly
interpreted in Florida, since the Supreme Court deliberately did not make broad
pronouncements and chose to overrule only its decision in Walton. This meant
that the Supreme Court left intact its prior pronouncements in Hildwin and
Spaziano, which had previously held Floridas statutory scheme to be
constitutional. Thus, this Court was faced with competing holdings in Hildwin and
Ringa difference that could be explained by the difference in the two state
statutes at issue. Based on the uncertainty, however, we urged the Legislature to
amend the capital sentencing scheme in order to ensure any possible constitutional
infirmities could be avoided. In other words, only after the issuance of Ring was
the law on this point no longer clear.
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reasonable . . . to rely upon [the old] law. That significant reliance has been placed
on the old rule is an important factor supporting prospective application of the new
rule.).
Thus, when considering this prong in the context of Asays sentence, which
was final before Ring, we determine that this Court, the State of Florida in
prosecuting these crimes, and the families of the victims, had extensively relied on
the constitutionality of Floridas death penalty scheme based on the decisions of
the United States Supreme Court. This factor weighs heavily against retroactive
application of Hurst v. Florida to this pre-Ring case.
3. Effect on the Administration of Justice
The last prong of the Stovall/Linkletter test analyzes the effect of applying
the new rule on the administration of justice. As the Court stated in Ferguson v.
State, 789 So. 2d 306 (Fla. 2001), This final consideration in the retroactivity
equation requires a balancing of the justice systems goals of fairness and finality.
Id. at 312. As a part of this analysis, this Court must review the risk of whether
applying the new rule retroactively could destroy the stability of the law, render
punishments uncertain and therefore ineffectual, and burden the judicial machinery
of our state, fiscally and intellectually, beyond any tolerable limit. Id. (quoting
Witt, 387 So. 2d at 929-30).
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analysis as to the impact on the administration of justice holds the same force.
Penalty phase resentencing is a time-intensive proceeding that requires significant
preparation and discovery, death-qualifying a jury, and generally, a multi-day trial.
Further, penalty phase proceedings require juries to have a full understanding of
the crime committed, so the State would be required to present evidence from the
guilt phase as well. While some of the prior witnesses statements could be
admitted based on the transcripts from the prior sentencing, the jurys ability to
weigh the strength of those witnesses would clearly be impacted. Finally, there is
an important consideration regarding the impact a new sentencing proceeding
would have on the victims families and their need for finality. Thus, we conclude
that this factor also weighs heavily against applying Hurst v. Florida retroactively
to Asay.
4. Conclusion of Retroactivity Analysis
After weighing all three of the above factors, we conclude that Hurst should
not be applied retroactively to Asays case, in which the death sentence became
final before the issuance of Ring. We limit our holding to this context because the
balance of factors may change significantly for cases decided after the United
States Supreme Court decided Ring. When considering the three factors of the
Stovall/Linkletter test together, we conclude that they weigh against applying
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newly discovered evidence claim will be upheld if the motion is legally insufficient
or its allegations are conclusively refuted by the record. McLin, 827 So. 2d at 954.
To prevail on a claim of newly discovered evidence, a defendant must show:
(1) the asserted facts must have been unknown by the trial court, by
the party, or by counsel at the time of trial, and it must appear that
defendant or his counsel could not have known [of it] by the use of
due diligence; and (2) the newly discovered evidence must be of
such nature that it would probably produce an acquittal on retrial.
Lambrix v. State, 124 So. 3d 890, 896 (Fla. 2013). The newly discovered evidence
will probably produce an acquittal on retrial if it weakens the case against [the
defendant] so as to give rise to a reasonable doubt as to his culpability. Hildwin
v. State, 141 So. 3d 1178, 1181 (Fla. 2014) (quoting Jones v. State, 709 So. 2d 512,
526 (Fla. 1998)).
Applying the standard to this case, we agree with the circuit courts
conclusion that Tobins affidavit does not qualify as newly discovered evidence.
New opinions or new research studies have routinely been rejected as newly
discovered evidence. See Henry v. State, 125 So. 3d 745, 750-51 (Fla. 2013).
Merely obtaining a new expert to review the same records does not create newly
discovered evidence. See Howell v. State, 145 So. 3d 774, 775 (Fla. 2013).
However, this Court has found that a case-specific letter from the FBI based
on a 2004 report by the National Research Council is newly discovered evidence.
Wyatt v. State, 71 So. 3d 86, 100 (Fla. 2011). The 2004 report discredited the
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science supporting the trial testimony of the FBIs own agent on comparative
bullet lead analysis, and the letter provided a case-specific assessment from the
FBI on how the reports findings could affect Wyatts case. Id. at 95, 99. We
found the letter to be newly discovered evidence because [a]lthough the FBI did
not actually write the letter until August 2008, more than fifteen years after
Wyatts trial, the flaws inherent in CBLA science were unknown or not publicly
acknowledged at the time of trial. Id. at 100.
Here, Tobins affidavit asserts that National Research Council reports from
2008 and 2009 show ballistic testimony in Asays case was misleading. However,
that affidavit cannot be considered newly discovered evidence in the same way as
the case-specific letter from the FBI in Wyatt. Tobin is not a law enforcement
agent seeking to correct his agencys prior testimony. See id. at 101; Smith v.
State, 75 So. 3d 205, 206 (Fla. 2011). Further, one of the reports on which Tobin
bases his affidavit was already itself rejected as newly discovered evidence in
Johnston v. State, 27 So. 3d 11 (Fla. 2010), because the report cited to existing
publications published years before Johnston raised his claim. Id. at 20-21.
Obtaining an expert to review that same report does not convert it or the experts
report into newly discovered evidence. See generally, Howell, 145 So. 3d at 775.
Thus, Asay has not provided any newly discovered evidence on which to base his
claim. Because the record conclusively shows that he is not entitled to relief on his
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newly discovered evidence claim, the circuit court did not err in denying an
evidentiary hearing. Therefore, we deny relief on this claim.
B. Strickland Claims
In the alternative to his Brady claims, discussed below, Asay alleges
generally that if the evidence was not suppressed in violation of Brady, trial
counsel was ineffective under Strickland for failing to adequately investigate or
introduce the evidence at trial. The Brady/Strickland evidence concerns three
circumstances that Asay alleges affect the facts of his case as presented at trial:
initial police investigation into another suspect for the Booker murder, a witnesss
ownership of a gun fitting the profile of the murder weapon, and information
impeaching Charlie Moores testimony that Asay confessed to the McDowell
murder.
The summary denial of an ineffective assistance of counsel claim will be
upheld where the motion is legally insufficient or where the record conclusively
refutes the allegations. See Jones, 998 So. 2d at 587. To succeed on a claim of
ineffective assistance of trial counsel, a movant must show that trial counsels
performance fell outside the broad range of reasonably competent performance
under prevailing professional standards, and that this deficiency affected the
proceeding so as to undermine confidence in the outcome at trial such that the
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discover it and utilizing [sic] it. In addition, for the instant appeal, the
Brady/Strickland claims were grouped with the newly discovered evidence claim,
and Asay argued that this Court must find a Strickland violation if the evidence
was not suppressed under Brady because Brady and Strickland are two sides of
the same coin.
We find that these conclusory allegations fail to demonstrate that trial
counsels performance was deficient or prejudiced Asay. See Jones 998 So. 2d at
587; Connor v. State, 979 So. 2d 852, 862 (Fla. 2007). Asay does not demonstrate
how trial counsel was deficient or that counsels performance fell outside of
reasonable professional standards. As to prejudice, Asay alleges that the evidence
would have allowed counsel to convey a narrative that, if believed by the jury,
would probably undermine confidence in his conviction or sentence. However,
whether the jury would believe this narrative is mere speculation that fails to rise
to the level of prejudice needed to establish an ineffective assistance of trial
counsel claim. Nelson v. State, 73 So. 3d 77, 85 (Fla. 2011) (citing Johnson v.
State, 921 So. 2d 490, 503-04 (Fla. 2005)). Because Asay has not demonstrated
deficiency or prejudice, his Strickland claim is legally insufficient and the circuit
court properly denied an evidentiary hearing. Jones, 998 So. 2d at 587. We deny
relief on this claim.
C. Brady Claims
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conclusively shows that Asays alleged newly discovered evidence does not
constitute newly discovered evidence. The Brady/Strickland evidence with
potential impeachment value against Charlie Moore is procedurally barred. Asays
Strickland claim is insufficient for failing to demonstrate deficiency or prejudice.
Therefore, the only alleged error this Court could review for cumulative prejudice
is Asays Brady claim based on the evidence showing another initial suspect and a
witnesss ownership of a gun similar to the murder weapon. As noted in the Brady
discussion above, the record conclusively shows that this evidence is not material
such that it prejudiced Asay. As such, we find no cumulative prejudice.
III. EXTRA RECORD MATERIAL AND EX PARTE HEARING
Asay next argues the circuit court violated his right to due process when it
considered extra record material and conducted an ex parte hearing with the State.
According to Asay, this demonstrates bias on behalf of the trial judge and requires
her removal from the case. Each of these claims will be addressed in turn.
A. Extra Record Material
Asay argues the circuit court considered extra record material in deciding his
Brady claim. During the warrant litigation, the State Attorneys Office and the
Jacksonville Sheriffs Office recreated their original disclosures of public records.
The State attached these public records to an e-mail, sent them to Asays counsel,
and copied the e-mail to the circuit court. The attachments were not introduced
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into evidence. At the Huff hearing, the State read from the deposition of Detective
Housend in support of its position that it did not suppress information regarding
Roland Pough as a possible suspect. The State also repeatedly referred to a
homicide continuation report from the public records provided by the Jacksonville
Sheriffs Office. The circuit court relied on these records to deny Asays Brady
claim that Detective Housend failed to provide trial counsel with information about
Roland Pough as a suspect in Bookers shooting. Both documents were part of the
public records sent to Asays counsel and the circuit court via e-mail, and defense
counsel made no objection to the use of the records during the hearing.
Generally, to raise an error on appeal, a contemporaneous objection must be
made at the trial level when the alleged error occurs. J.B. v. State, 705 So. 2d
1376, 1378 (Fla. 1998). Only when an error is fundamental can it be raised on
appeal in the absence of a contemporaneous objection. Crump v. State, 622 So. 2d
963, 972 (Fla. 1993). An error is fundamental when it goes to the foundation of
the case or the merits of the cause of action and is equivalent to a denial of due
process. State v. Johnson, 616 So. 2d 1, 3 (Fla. 1993). Further, it is [t]he
essence of due process . . . that fair notice and reasonable opportunity to be heard
must be given to interested parties before judgment is rendered. Huff v. State,
622 So. 2d 982, 983 (Fla. 1993) (quoting Scull v. State, 569 So. 2d 1251, 1252
(Fla. 1990)).
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Here, Asay failed to object to the circuit courts receipt of the public records
via e-mail. He also failed to object when the State read from the public records
during the Huff hearing. If Asay had objected at either time, he would have had
the opportunity to be heard. Consequently, Asay fails to establish a lack of notice
and opportunity to be heard as to the circuit courts receipt of the public records.
Because there was no violation of due process, the circuit courts reliance on the
public records in its final order does not amount to fundamental error, and Asay is
barred from raising this issue on appeal.
B. Ex Parte Hearing
Asay also contends that the circuit court conducted an ex parte hearing with
the State. On February 4, 2016, at approximately 12:45 p.m., Asays counsel emailed the State, writing that he intended to file a proffer containing unredacted
materials. The Office of the Attorney General e-mailed back at 12:58 p.m. that the
State objected because any proffer after the circuit courts ruling was improper.
Asays counsel responded that he still intended to file the proffer. At 2:31 p.m.,
the State filed a motion to prohibit the proffer. The trial judges judicial assistant
attempted to arrange a hearing on the States motion; however, Asays counsel
responded that he would not be available at all that day.
At 3:02 p.m., the State e-mailed Asays counsel a notice of hearing via the eportal. At 3:14 p.m., the judge e-mailed Asays counsel that the hearing could be
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moved to a later time but needed to be held before 5 p.m. that day. At 3:15 p.m.,
the trial court held a hearing on the States motion without opposing counsel
present. During the hearing, the circuit court noted that it received e-mails from
Asays counsel that he intended to file unredacted police reports along with a
Notice of Proffer. The circuit court also noted, however, that all proceedings were
to be completed by February 3 according to this Courts Scheduling Order. Thus,
the circuit court stated that it had not reviewed and would not review the e-mails,
and then sealed, filed, and labeled the e-mails as exhibits Two and Three to be
submitted to this Court to preserve the matter. After the hearing, at 4:06 p.m.,
Asays counsel e-mailed the judge that he was not available and had not been
given adequate notice.
Generally, a judge should not engage in ex parte communications with any
party. See Smith v. State, 708 So. 2d 253, 255 (Fla. 1998). The hearing at issue
here was an ex parte communication, a fact the State conceded during the hearing.
However, Asay was not prejudiced by this non-substantive hearing. The circuit
court only went on record to acknowledge it received the e-mails and the States
motion and to explain that review of the proffered material would not be possible
in order to adhere to this Courts Scheduling Order. While due process requires
notice and opportunity to be heard before judgment is rendered, no judgment was
rendered at the hearing. The court did not review the e-mails or rule on the States
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motion. Instead, the court sealed the e-mails to preserve the issue for this Court.
Consequently, Asay fails to establish how he was adversely affected by the hearing
or how the proceedings establish bias on the part of the circuit court judge.
Although the circuit court reviewed extra record material and conducted an
ex parte hearing with the State, Asay is not entitled to relief as to either claim.
Moreover, because Asay fails to establish prejudice, his claim that the circuit court
judge was biased is meritless. Additionally, Asay did not file a motion to
disqualify the judge. Therefore, the claim of bias is also procedurally barred.
Asay is not entitled to relief as to this second issue.
IV. DUE PROCESS, EQUAL PROTECTION, AND SPALDING V.
DUGGER CLAIMS
Next, Asay argues he was denied due process, equal protection, and the right
to effective collateral representation under Spalding, 526 So. 2d at 72, when his
death warrant was signed while no registry counsel was in place and had not been
in place for over a decade. In 2005, Asays postconviction counsel, Dale Westling,
withdrew from the case when it moved into federal court. Asay was not
represented by registry counsel again until his death warrant was signed in January
2016. Following that appointment, it was discovered that many of Asays records
were lost or damaged.
Asay contends that the lack of counsel for ten years violated his right to due
process and equal protection. Moreover, Asay argues that the courts late
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appointment of counsel and the lack of records rendered his counsels performance
ineffective. In response, the State argues that defendants have no constitutional
right to postconviction counsel, Asay was represented by counsel at every stage of
his proceedings, and neither late appointment of registry counsel nor lost records
violate due process. The standard of review is de novo.
A. Due Process
Due process requires that a defendant be given notice and an opportunity to
be heard on a matter before it is decided. Huff, 622 So. 2d at 983. While Asay
argues that his lack of registry counsel violated his right to due process, he fails to
state when he was denied notice or opportunity to be heard at any stage of his
postconviction proceedings. Asay appears to suggest that postconviction counsel
was required to actively investigate his case for the preceding ten years and
continuously bring forth new arguments. However, this is not mandated by section
27.710, Florida Statutes. Instead, counsel is only required to represent the
defendant until the sentence is reversed, reduced, or carried out or until released
by order of the trial court. 27.710(4), Fla. Stat.
Here, Asay was represented by counsel at every stage of his postconviction
proceedings. Steve Kissinger represented Asay during the initial postconviction
proceedings, and Dale Westling represented Asay during the successive
postconviction proceedings. In 2005, Mr. Westling filed a motion to withdraw
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when the case moved from state court to federal court. The trial court granted the
motion. In federal court, at least two attorneys represented Asay at various stages
of the proceedings. When the death warrant was signed in January of 2016, the
trial court appointed new registry counsel. At no point was Asay not represented
by counsel. Furthermore, Asay had notice of each postconviction proceeding and
the opportunity to have counsel argue his claims before the court. Thus, his due
process argument fails.
B. Equal Protection
Asays equal protection argument also fails. Disparate treatment of similarly
situated defendants is a violation of equal protection. See Duncan v. Moore, 754
So. 2d 708, 712 (Fla. 2000). However, Asay does not demonstrate how he was
treated differently from similarly situated defendants. As previously explained,
Asay has been represented by counsel at every stage of his proceedings as required
by statute. While he contends that counsels withdrawal resulted in disparate
treatment, the statute allows counsel to withdraw from the case with permission of
the trial court. Here, Asay does not show how withdrawal of counsel resulted in
disparate treatment when any defendants postconviction counsel can withdraw
with permission from the trial court. Thus, we find that Asay is not entitled to
relief on this claim.
C. Ineffective Assistance of Counsel
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Finally, Asay argues that the late appointment of registry counsel and the
lack of records rendered counsels assistance ineffective and violated his right to
due process. Asay cites Spalding in support of his claim. However, Spalding only
requires that a defendant be represented by an attorney during postconviction
proceedings. Id. at 72. Therefore, Spalding does not entitle Asay to the relief he
requests. To the extent that Asay is instead attempting to argue ineffective
assistance of counsel, this Court has repeatedly held that defendants are not entitled
to effective assistance of collateral counsel. See Gore v. State, 91 So. 3d 769, 778
(Fla. 2012) (explaining that there is no independent cause of action for ineffective
assistance of collateral counsel in Florida); Zack v. State, 911 So. 2d 1190, 1203
(Fla. 2005) (Under Florida and federal law, a defendant has no constitutional right
to effective collateral counsel.).
Furthermore, the lack of records does not amount to a due process violation.
This is a pre-repository case, so the documents from the initial postconviction
proceedings in state court were not archived. However, the Office of the Attorney
General copied the entire appellate record in state court including the direct appeal,
the initial postconviction proceedings, and the successive postconviction
proceedings. The Department of Corrections provided counsel with Asays entire
medical record, as well as the entire inmate file. The State Attorneys Office
provided counsel with its entire file, which included many of the original public
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application of Hurst by barring relief to even those defendants who, prior to Ring,
had properly asserted, presented, and preserved challenges to the lack of jury
factfinding and unanimity in Floridas capital sentencing procedure at the trial
level and on direct appeal, the underlying gravamen of this entire issue. In this
case, Asay did not raise a Sixth Amendment challenge prior to the case named
Ring arriving. See majority op. at 12 n.12. Therefore, I agree that he is not
entitled to relief, and I concur in result. However, I write separately to explain my
disagreement with the Hurst retroactivity issue as adopted by this Court.
Many courts struggle with the staggeringly intricate body of law governing
the question whether new constitutional doctrines should be retroactively or
prospectively applied. Witt v. State, 387 So. 2d 922, 925 (Fla. 1980) (quoting
Paul M. Bator et al., Hart & Wechslers The Federal Court and the Federal System
1477 (2d ed. 1973)). This Court need not tumble down the dizzying rabbit hole of
untenable line drawing; instead, the Court could simply entertain Hurst claims for
those defendants who properly presented and preserved the substance of the issue,
even before Ring arrived. This is consistent with the precedent of this Court. In
James v. State, 615 So. 2d 668, 669 (Fla. 1993), we granted relief to a defendant
who had asserted at trial and on direct appeal that the jury instruction pertaining to
the heinous, atrocious, or cruel aggravating circumstance was unconstitutionally
vague before the United States Supreme Court ultimately reached that same
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20. See L. Anita Richardson & Leonard B. Mandell, Fairness Over Fortuity:
Retroactivity Revisited and Revised, 1989 Utah L. Rev. 11, 56-57 (1989).
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Simply fishing one case from the stream of appellate review . . . and
then permitting a stream of similar cases subsequently to flow by
unaffected by that new rule constitute[s] an indefensible departure
from this model of judicial review.
Williams v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., concurring in part
and dissenting in part). As Justice Perry noted in his dissent, there is no salient
difference between June 23 and June 24, 2002the days before and after the case
name Ring arrived. See Perry, J., dissenting op. at 73. However, that is where the
majority opinion draws its determinative, albeit arbitrary, line. As a result, Florida
will treat similarly situated defendants differentlyhere, the difference between
life and deathfor potentially the simple reason of one defendants docket delay.
Vindication of these constitutional rights cannot be reduced to either fatal or
fortuitous accidents of timing.24
Every pre-Ring defendant has been found by a jury to have wrongfully
murdered his or her victim. With full knowledge that some defendants properly
preserved challenges to their unconstitutional sentences, this Court now limits the
application of Hurst, resulting in the State wrongfully executing those defendants.
It seems axiomatic that two wrongs dont make a right; yet, this Court essentially
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condones that outcome with its very limited interpretation of Hursts retroactivity
and application.
PARIENTE, J., concurring in part and dissenting in part.
Our recent decision in Hurst25 is undoubtedly a decision of fundamental
constitutional significance based not only on the United States Supreme Courts
decision in Hurst v. Florida,26 but also on Floridas separate constitutional right to
trial by jury under article I, section 22, of the Florida Constitution. Not only did
the United States Supreme Court hold that Floridas capital sentencing scheme was
unconstitutional based on the Sixth Amendment to the United States Constitution,
but this Court also held in Hurst that capital defendants are entitled to unanimous
jury findings of each aggravating factor, that the aggravating factors are sufficient
to impose death, and that the aggravating factors outweigh the mitigating
circumstances and a unanimous jury recommendation of death as part of Floridas
constitutional right to a trial by jury under article I, section 22, of the Florida
Constitution. Hurst, 202 So. 3d at 44.
Applying decisions of fundamental constitutional significance retroactively
to defendants in similar circumstances is essential to ensuring fairness and
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uniformity in individual adjudications. Witt v. State, 387 So. 2d 922, 925 (Fla.
1980).27 This Court has always recognized that death is different, so we must be
extraordinarily vigilant in ensuring that the death penalty is not arbitrarily
imposed.28 Therefore, I dissent from the majoritys holding not to apply Hurst
retroactively to all death sentences that were imposed under Floridas
unconstitutional capital sentencing scheme.29
In Hurst, we emphasized the importance of unanimity in jury decisions,
stating: If death is to be imposed, unanimous jury sentencing recommendations,
when made in conjunction with the other critical findings unanimously found by
the jury, provide the highest degree of reliability in meeting these constitutional
requirements in the capital sentencing process. 202 So. 3d at 60. In fact, the
majority acknowledges the importance of our holding in Hurst:
[T]he ultimate decision of whether a defendant lives or dies rests on
these factual findings, only strengthening the purpose of the new rule.
Both this Court and the Supreme Court have recognized that death is
27. See Witt, 387 So. 2d at 925 (Considerations of fairness and uniformity
make it very difficult to justify depriving a person of his liberty or his life, under
process no longer considered acceptable and no longer applied to indistinguishable
cases.).
28. See, e.g., Johnson v. State, 904 So. 2d 400, n.14 (Fla. 2005) (Anstead,
J., concurring in part and dissenting in part) (explaining other contexts in which
this Court has granted retroactive application of new precedent).
29. I agree with the majoritys denial of relief on Asays second, third, and
fourth claims respectively, and thus would not overturn Asays conviction.
Majority op. at 10-11, 52.
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different. See, e.g., Yacob v. State, 136 So. 3d 539, 546 (Fla. 2014)
(quoting Fitzpatrick v. State, 527 So. 2d 809, 811 (Fla. 1988)); Ring,
536 U.S. at 605. Thus, in death cases, this Court has taken care to
ensure all necessary constitutional protections are in place before one
forfeits his or her life, and the purpose of the new rule weighs in favor
of applying Hurst v. Florida retroactively to Asay.
Majority op. at 27.
The majoritys decision will have an immediate effect on Asay, who is the
subject of a pending death warrant. Majority op. at 2. In my view, by limiting the
retroactivity of the rights explained in Hurst v. Florida and Hurst, the majority
discounts the significance of the unanimity requirement imposed by this Courts
holding in Hurst and applied in our holding in Perry v. State, 41 Fla. L. Weekly
S449 (Fla. Oct. 14, 2016), invalidating Floridas revised 2016 death penalty
sentencing statute for its failure to require unanimity in the jurys final
recommendation of death. While I cannot agree with Justice Perrys interpretation
and application of section 775.082(2), Florida Statutes, which would reduce every
final death sentence to life after Hurst v. Florida, I agree that a faithful application
of the Witt test for retroactivity compels full retroactivity of Hurst. A faithful Witt
analysis includes consideration of the uniqueness and finality of the death penalty,
together with the fundamental constitutional rights at stake when the State
sentences someone to deathnamely the right to trial by jury and sentencing by a
unanimous jury as guaranteed by both the Sixth Amendment to the United States
Constitution and article I, section 22, of the Florida Constitution.
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reviewed under the three factors of the Stovall30/Linkletter31 test: examining the
purpose of the rule, the extent of reliance on the prior rule, and the effect of
retroactive application of the new rule on the administration of justice. Witt, 387
So. 2d at 926 (citations omitted).
As to the importance of the right to trial by jury, the majority appropriately
explains that the purpose to be served by the rule weighs in favor of applying Hurst
retroactively:
The importance of the right to a jury trial has been recognized
since this countrys inception and is the only right to appear in both
the body of the Constitution and the Bill of Rights. Art. III, 2, U.S.
Const.; U.S. Const. amend. VI. In fact, in the very line of cases at
issue here, the United States Supreme Court has recognized that the
right to a jurys determination of all the elements of an offense is of
utmost importance, thereby changing its previous position that
sentencing considerations were an exception to the rule. See
Apprendi, 530 U.S. at 476 (At stake in this case are constitutional
protections of surpassing importance.); see also Ring, 536 U.S. at
609 (Because . . . aggravating factors operate as the functional
equivalent of an element of a greater offense, the Sixth Amendment
requires that they be found by a jury. (citation omitted) (emphasis
added)).
Likewise, in Florida, this Court has always considered the
right to jury trial an indispensable component of our system of
justice. Blair v. State, 698 So. 2d 1210, 1213 (Fla. 1997). In fact,
Floridas first Constitution declared, That the great and essential
principles of liberty and free government, may be recognized and
established, we declare: . . . That the right of trial by jury, shall for
ever remain inviolate. Art. I, 6, Fla. Const. (1838). This Court has
30. Stovall v. Denno, 388 U.S. 293 (1967).
31. Linkletter v. Walker, 381 U.S. 618 (1965).
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there were fewer defendants currently on death row and fewer executions in this
State since 1976, this Court might have held Hurst to be fully retroactive. But, in
fact, Witt does not elevate this factor above the others when conducting a
retroactivity analysis because the three prongs are intertwined to assist the Court in
determining when fairness must yield to finality.
I would conclude that Hurst creates the rare situation in which finality yields
to fundamental fairness in order to ensure that the constitutional rights of all capital
defendants in Florida are upheld.32 Witt, 387 So. 2d at 925; Ferguson, 789 So. 2d
at 312. As Chief Justice Strine of the Supreme Court of Delaware stated in his
recent concurrence in Rauf v. Delaware, a decision that invalidated Delawares
capital sentencing scheme in light of the United States Supreme Courts decision in
32. Even under the majoritys holding today, relief should be granted to the
two Florida death row inmates whose sentences were a result of a judicial override
because the jurisprudence on the acceptability of judicial overrides has so
dramatically changed since their sentences were finalized. Marshall v. State, 604
So. 2d 799 (Fla. 1992); Marshall v. State, No. SC16-779 (pending); Zeigler v.
State, 402 So. 2d 365 (Fla. 1981); see Zeigler v. State, No. SC16-1498 (pending);
see also Hurst v. Florida, 136 S. Ct. at 626 (Alito, J., dissenting) (No Florida trial
court has overruled a jurys recommendation of a life sentence for more than 15
years.); see also Asay, slip op. at 53 (Labarga, C.J., concurring).
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Hurst, and which the Delaware Supreme Court recently held applies retroactively
under the more restrictive Teague33 test:34
If U.S. Supreme Court jurisprudence has and therefore can turn on a
determination that death is different, it is certainly appropriate to
recognize that the decision to give death or life is the most important
one that can be made in any criminal trial, and that the Sixth
Amendment right was understood as of its adoption and for much of
our history as allocating that authority to the jury.
Rauf v. Delaware, 145 A.3d 430, 473 (Del. 2016) (Strine, C.J., concurring)
(footnotes omitted).
Maintaining the focus on fairness, I turn to the third prong of the
Stovall/Linkletter test: the effect on the administration of justice. As this Court
stated in Witt, society recognizes that a sweeping change of law can so drastically
alter the substantive or procedural underpinnings of a final conviction and sentence
that the machinery of post-conviction relief is necessary to avoid individual
instances of obvious injustice. 387 So. 2d at 925. When determining whether
someone lives or dies, requiring that a jury determine unanimously that the death
penalty be imposedafter carefully determining which aggravators exist,
weighing the sufficiency of the aggravators, determining that the aggravating
33. Teague v. Lane, 489 U.S. 288 (1989); see Asay, slip op. at 54 (Polston,
J., concurring).
34. See Powell v. Delaware, No. 310, 2016, 2016 WL 7243546 (Del. Dec.
15, 2016).
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35. Am. Bar Assn Death Penalty Due Process Rev. Project Sec. of
Inidivudal Rights & Resps., Report to the House of Delegates (Feb. 2015),
http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Repre
sentation/2015_my_108a.authcheckdam.pdf, at 3-4; accord Ferguson, 789 So. 2d
at 312.
36. See, e.g., Johnson v. State, 44 So. 3d 51 (Fla. 2010) (vacating the
sentences of death and remanding for a new penalty phase hearing on a conviction
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from a murder in 1981). Johnson currently has an appeal pending before this Court
where he claims entitlement to relief based on Hurst. See case No. SC14-1175.
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37. I am aware of the irony of this statement in this particular case. It does
not escape me that Mark Asay is a terrible bigot whose hate crimes are some of the
most deplorable this State has seen in recent history. However, it is my sworn duty
to uphold the constitution of this state and of these United States and not to ensure
retribution against those whose crimes I find personally offensive.
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and the Death Penalty in Florida, 43 Fla. L. Rev. 1 (1991). This sad statistic is a
reflection of the bitter reality that the death penalty is applied in a biased and
discriminatory fashion, even today. Indeed, as my retirement approaches, I feel
compelled to follow other justices who, in the twilight of their judicial careers,
determined to no longer tinker with the machinery of death. See, e.g., Callins v.
Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting). The majoritys
decision today leads me to declare that I no longer believe that there is a method of
which the State can avail itself to impose the death penalty in a constitutional
manner. Because the majority of this Court has already determined that Asay will
be executed for his crimes, I limit the remainder of my discussion to the
application of Hurst v. Florida to this case.
I would find that Hurst v. Florida applies retroactively, period. I therefore
would not limit its application to cases final after June 24, 2002, when the United
States Supreme Court issued its decision in Ring. I can find no support in the
jurisprudence of this Court where we have previously determined that a case is
only retroactive to a date certain in time. Indeed, retroactivity is a binaryeither
something is retroactive, has effect on the past, or it is not.
The majoritys opinion is inconsistent with our analysis of principles of
fairness in our recent decision Falcon v. State, 162 So. 3d 954 (Fla. 2015). In
Falcon, this Court stated that the principles of fairness underlying the Witt analysis
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make it very difficult to justify depriving a person of his liberty or his life, under
process no longer considered acceptable and no longer applied to indistinguishable
cases. Falcon, 162 So. 3d at 962. In Falcon, we found that applying a
constitutional rule to some juvenile offenders but not to other similarly situated
juvenile offenders simply because of the date their sentences became final would
result in unjust disparate treatment of similarly situated persons. Id.; see also
Thompson v. Dugger, 515 So. 2d 173 (Fla. 1987) (concluding that all death
sentenced individuals, regardless of when their sentences became final, were
entitled to seek relief in light of Hitchcock v. Dugger, 481 U.S. 393 (1987)).
Accordingly, we concluded that [t]he patent unfairness of depriving
indistinguishable juvenile offenders of their liberty for the rest of their lives, based
solely on when their cases were decided, weighs heavily in favor of
[retroactivity]. Falcon, 162 So. 2d at 962.
Death penalty cases should be treated as a class apart from non-death
penalty cases. Furman v. Georgia, 408 U.S. 238, 285-87 (1972). We have
consistently noted that death is different and as such, required careful
consideration by the judiciary. Robertson v. State, 143 So. 3d 907, 912 (Fla. 2014)
(Florida jurisprudence begins with the premise that death is different.); Yacob v.
State, 136 So. 3d 539, 546 (Fla. 2014) ([T]his Courts automatic, mandatory, and
statutorily required review of death penalty cases must begin with the premise that
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death is different. ); Ocha v. State, 826 So. 2d 956, 964 (Fla. 2002) (This Court
has long adhered to the idea that [i]n the field of criminal law, there is no doubt
that death is different. ); Swafford v. State, 679 So. 2d 736, 740 (Fla. 1996)
([O]ur jurisprudence also embraces the concept that death is different and
affords a correspondingly greater degree of scrutiny to capital proceedings.). In
its decision today, this Court chooses not to minimize the risk of wholly arbitrary
and capricious implantation of the death penalty.
In the present case, the majority strays from its reasoning in Falcon and
decides that in capital cases where the Sixth Amendment rights of hundreds of
persons were violated, it is appropriate to arbitrarily draw a line between June 23
and June 24, 2002the day before and the day after Ring was decided. The
majority does not offer a convincing rationale as to why 173 death sentenced
persons should be treated differently than those whose sentences became final
post-Ring, while overestimating the burden that these 173 capital cases will place
on the judiciary. Because death is different, retroactive application of Hurst v.
Florida to all death sentenced persons cannot be justified by the mere fact that it
will be harder to grant a new penalty phase or other relief to 173 additional
persons.
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One of the reasons given for this arbitrary line in the sand is the
administration of justice.38 The majority opines that penalty phase proceedings are
time intensive endeavors that require the State to present evidence from the guilt
phase in addition to penalty-phase-specific evidence and that the jurors ability to
weigh the testimony of witnesses who may no longer be available will be
impacted. Indeed, the majority claims that the greater the time since the crime, the
more difficult a new penalty phase will be. Undoubtedly, there will be situations
where persons who committed equally violent felonies and whose death sentences
became final days apart will be treated differently without justification from this
Court. However, because death row defendants have succeeded in having
convictions and sentences vacated for crimes that were committed long before
Ring was decided and now have new sentences that became final after Ring was
decided, the majoritys conclusion is undermined and the application is arbitrary.
I submit that there is a more logical way to provide finality to the victims
families without violating the Eighth Amendment. First, the majority has
overstated the effect of retroactivity on the administration of justice: the effect
would not be substantial. The retroactive application of Hurst v. Florida would
affect only capital cases. Although they are generally more complex and require
38. I agree with the majority that Witt is the appropriate test to determine
retroactivity.
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more judicial resources than other types of cases, capital cases make up only a
small percentage (0.09 percent) of the 171,414 criminal cases filed in circuit court
during the fiscal year 2014-15, and an even smaller percentage (0.02 percent) of
the 753,011 total cases filed in circuit court. See Office of the State Courts
Adminr, Floridas Trial Courts Statistical Reference Guide: FY 2014-15, ch. 2, at
4 (2015), http://flcourts.org/core/fileparse.php/541/urlt/20150901-Chapter2_Overall-Statistics_accessible.pdf. In light of this Courts mandatory jurisdiction
over capital cases and the statutory requirement that capital cases be prosecuted in
circuit court, the new rule would have no effect on either the district courts or
county courts.
Moreover, because the majority opines that a new penalty phase is required
in these cases, the burden on state attorneys, defense counsel, and the judiciary is
not as great as if the convictions were vacated. However, even this burden could
be eliminated if the Court were to abide by the Legislatures directive in section
775.082(2), Florida Statutes. In so doing, these capital defendants would receive
life sentences, new penalty phase proceedings would be unnecessary, and the
burden on the administration of justice would be nil. In other words, this Court has
rejected an available remedy that creates no burden but then pronounces that the
burden is far too great to provide equal application to similarly situated defendants.
In short, there will be situations where persons who committed equally violent
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felonies and whose death sentences became final days apart will be treated
differently without justification from this Court.
For example, Asay committed two murders on the night of July 17, 1987.
His sentence became final on October 7, 1991, when the United States Supreme
Court denied certiorari. See Asay v. Florida, 502 U.S. 895 (1991). Asays nine-tothree jury recommendation that resulted in a death sentence would not be
constitutional if Hurst v. Florida applied to him, but the majority holds that he is
not entitled to the Sixth Amendment protections articulated in Hurst v. Florida.39
Yet, under the present majoritys decision, another defendant who committed his
offense on an earlier date but had his sentence vacated and was later resentenced
after Ring, cannot receive the death penalty without the protections articulated in
Hurst.40 Timothy Hurst committed his crimes on May 2, 1990, and was originally
sentenced on April 26, 2000, which was final October 21, 2002, a few short
months after the decision in Ring.41 The majoritys application of Hurst v. Florida
makes constitutional protection depend on little more than a roll of the dice. This
cannot be tolerated.
In light of the relatively few number of capital cases in proportion to the
judiciarys entire caseload and the fact that Hurst v. Florida requires either only
new penalty proceedings or no new proceedings at all, the administration of justice
would not be over-burdened by the retroactive application of Hurst v. Florida. The
United States Supreme Court has previously applied new constitutional rules
retroactively despite significantly greater burdens on judicial administration. For
instance, when the United States Supreme Court made retroactive its holding that
no juvenile may be sentenced to life in prison without some opportunity for
40. See, e.g., Johnson v. State, No. SC14-1175, 2016 WL 7013856, op. at 1
(Fla. Dec. 1, 2016) (Johnson was convicted for multiple murders occurring on
January 8 and 9, 1981, and his sentences became final on February 21, 1984.
Subsequently, this Court vacated Johnsons sentences and remanded for a new
penalty phase. This Court vacated Johnsons death sentence [b]ecause the jury
that recommended Johnsons death sentences did not find the facts necessary to
sentence him to death . . . .
41. Hursts sentence was later vacated in 2009.
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specified: the sentencing court must vacate his death sentence and sentence him to
life in prison. See 775.082(2), Fla. Stat. (2015) (In the event the death penalty
in a capital felony is held to be unconstitutional by the Florida Supreme Court or
the United States Supreme Court, the court having jurisdiction over a person
previously sentenced to death for a capital felony shall cause such person to be
brought before the court, and the court shall sentence such person to life
imprisonment as provided in subsection (1).).
The plain language of the statute does not rely on a specific
amendment to the United States Constitution, nor does it refer to a
specific decision by this Court or the United States Supreme Court.
Further, it does not contemplate that all forms of the death penalty in
all cases must be found unconstitutional. Instead, the statute uses
singular articles to describe the circumstances by which the statute is
to be triggered. Indeed, the statute repeatedly references a singular
defendant being brought before a court for sentencing to life
imprisonment.
Hurst v. State, 202 So. 3d at 75-76 (Perry, J., concurring in part and dissenting in
part).
The sentencing court unconstitutionally imposed the death penalty on Asay.
Accordingly, the death penalty in [Asays] capital felony [has been] held to be
unconstitutional, and accordingly, the court having jurisdiction over [Asay who
was] previously sentenced to death for a capital felony shall cause [him] to be
brought before the court, and the court shall sentence [him] to life imprisonment.
Id. We need conduct no further legal gymnastics to carry out the will of the
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Legislature. See, e.g., English v. State, 191 So. 3d 448, 450 (Fla. 2016) (When
the statutory language is clear or unambiguous, this Court need not look behind the
statutes plain language or employ principles of statutory construction to determine
legislative intent.). The sentencing court must impose a life sentence pursuant to
section 775.082(2), Florida Statutes.
Three Cases:
An Appeal from the Circuit Court in and for Duval County,
Tatiana Radi Salvador, Judge - Case No. 161987CF006876AXXXMA
And Original Proceedings Habeas Corpus
Martin J. McClain and Linda McDermott of McClain & McDermott, P.A., Wilton
Manors, Florida; and John Paul Abatecola, Estero, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,
for Appellee/Respondent
Billy Horatio Nolas, Chief, Capital Habeas Unit, Office of the Federal Public
Defender, Northern District of Florida, Tallahassee, Florida,
for Amicus Curiae The Capital Habeas Unit of the Office of the Federal
Public Defender for the Northern District of Florida
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