*1 Supreme Court 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.
[December 22, 2016] PER CURIAM.
Mark James Asay, a prisoner under sentence of death for whom a warrant has been signed, [1] appeals from the summary denial of his second successive postconviction motion. Asay has also filed two petitions for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the circuit court’s denial of postconviction relief. We also deny the petitions for a writ of habeas corpus.
FACTS AND PROCEDURAL HISTORY
The facts of this case are set forth in Asay’s direct appeal: According to testimony of Asay’s brother, Robbie, and Robbie’s friend, “Bubba” McQuinn, on July 17, 1987, the three met at a local bar where they drank beer and shot pool. They left the bar around 12:00 a.m. and went to a second bar where they stayed until closing at 2:00 a.m. Although Asay drank a number of beers, both Bubba and Robbie testified that Asay did not appear drunk or otherwise impaired.
After the bar closed, Robbie said he wanted to try to “pick up a girl” he had seen at the bar, so Bubba and Asay drove around the corner in Asay’s truck. They returned to discover that Robbie had been unsuccessful with the girl he had seen, so Bubba suggested that they go downtown to find some prostitutes and he would pay for oral sex for them all. Asay and Bubba left in Asay’s truck and Robbie left in his. Once downtown, Asay and Bubba soon spotted Robbie who was inside his truck talking to a black man, Robert Lee Booker. Robbie was telling Booker who was standing at the driver’s side 1. The execution was originally scheduled for March 17, 2016, but was stayed indefinitely by this Court on March 2, 2016.
window of Robbie’s truck that he and his friends were looking for prostitutes.
After spotting Booker standing by Robbie’s truck, Asay told Bubba to pull up next to the truck. Asay immediately got out of his truck, proceeded to Robbie’s truck, and told Robbie “You know you ain’t 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 Booker’s face and verbally attack him. When Booker told him “Don’t 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. Booker’s 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 McDowell’s 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.” McDowell’s 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.
Asay later told Charlie Moore in the presence of Moore’s cousin, Danny, that he shot McDowell because McDowell had cheated him out of ten dollars on a drug deal and that he had told McDowell, “if he ever got him that he would get even.” Asay told Moore that he was out looking for “whores,” when he came across McDowell. According to Moore’s cousin, Danny, Asay also told Moore that his plan was to have Bubba get McDowell in the truck and they “would take her off and screw her and kill her.” Moore testified that Asay told him that when Bubba “didn’t have [McDowell] in the truck so they could go beat him up,” Asay “grabbed [McDowell] by the arm and stuck the gun in his chest and shot him four times, and that when he hit the ground, he finished him off.” As a result of tips received from Moore and his cousin after McDowell’s murder was featured on a television Crime Watch segment, Asay was arrested and charged by indictment with two counts of first-degree murder. The state also presented testimony of Thomas Gross, who was Asay’s cellmate while he was awaiting trial. Gross testified that when the black prisoners, who were also housed in their cell, were out in the recreation area, Asay told him he was awaiting trial for a couple of murders. According to Gross, Asay then showed him some newspaper articles and told him, “I shot them niggers.” While they were discussing the murders, Asay showed Gross his tattoos, which included a swastika, the words “White Pride,” and the initials “SWP” which Gross said stand for supreme white power.
Asay v. State (Asay I),
The jury found Asay guilty of both murders and recommended a death sentence by a vote of nine to three. The trial court followed the recommendation and imposed a sentence of death for each conviction. Id. at 612. The court found two aggravating factors established in connection with both murders: that Asay was under sentence of imprisonment at the time of the murders and had been previously convicted of a capital felony (based on the contemporaneous murder conviction). Id. In addition, the trial court found a third aggravator as to the *5 McDowell murder only: that the murder was committed in a cold, calculated, premeditated manner (CCP). Id. As to both murders, the trial court found Asay’s 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 Asay’s 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 relief [3] 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 Asay’s 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 jury’s 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) Asay’s death sentence was disproportionate. Id. at 612 n.1, 613-14.
3. While his postconviction motion was pending, Asay—along with other
capital defendants—appealed the Florida Board of Executive Clemency’s denial of
Asay’s public records requests, but this Court held that the obligation of the State
*6
Asay v. State (Asay II),
4. These claims were (1) state agencies withheld public records; (2) the trial
judge was biased and trial counsel should have sought to have him disqualified; (3)
the original trial judge was biased and should have recused himself from presiding
over the postconviction proceedings; (4) trial counsel was ineffective during the
guilt phase; (5) the jury instructions for the CCP aggravator did not limit the jury’s
consideration and was not supported by the evidence; (6) the CCP jury instruction
was unconstitutional and counsel’s failure to object rendered his performance
ineffective; (7) Florida’s sentencing scheme is unconstitutional; (8) the State’s
aggravating circumstances argument was overbroad; (9) the trial judge erred in
failing to find mitigation present in the record; (10) the penalty phase jury
instructions shifted the burden of proof to the defendant; (11) Asay’s trial was
fundamentally unfair due to the prosecutor’s inflammatory comments; (12) Asay
did not receive an adequate mental health evaluation as required by Ake v.
Oklahoma
,
trial. Asay II,
6. During the pendency of Asay’s appeal from the denial of his
postconviction motion, Asay also joined a mandamus class action suit to stay
application of the Florida Death Penalty Reform Act of 2000, of which this Court
found certain sections to be unconstitutional. Allen v. Butterworth,
7. These issues were (1) judicial bias during the trial and postconviction proceedings denied Asay “a fair and impartial tribunal throughout his proceedings in violation of his due process rights;” (2) the trial court improperly limited the scope of the evidentiary hearing by limiting the testimony of some of Asay’s siblings concerning mitigating evidence not presented during the sentencing phase, limiting the scope of Asay’s examination of his trial counsel regarding his knowledge of prior inconsistent statements of key witnesses, and refusing to hear the testimony of Thomas Gross recanting his trial testimony; (3) Asay’s guilt phase counsel was ineffective for failing to adequately impeach the State’s key witnesses, present a voluntary intoxication defense, and rebut the State’s arguments that he committed the crime due to his racial animus; (4) penalty phase counsel was ineffective for failing to investigate and present statutory mitigating evidence that Asay was acting under extreme emotional distress and his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and failing to present nonstatutory mitigating evidence of physical and emotional abuse and poverty during his childhood, alcohol abuse, and his history of “huffing” inhalants; (5) the trial court’s summary denial of several claims was improper; and (6) cumulative error. Id. at 978-89.
*8
989. We denied Asay’s 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),
On October 17, 2002, Asay filed his first successive postconviction motion,
in which he contended Florida’s capital sentencing procedure was unconstitutional
pursuant to Ring v. Arizona,
*9
claims.
[9]
Asay v. Sec’y, Fla. Dep’t of Corr. (Asay V), No. 3:05-cv-147-J-32PDB,
9. Asay raised the following claims: (1) Asay’s 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)
Asay’s counsel was ineffective for delegating the investigation of Asay’s case to
an investigator and failing to supervise or follow up on that investigator’s work
product; (3) Asay’s 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) Asay’s counsel was ineffective for failing to meaningfully
prepare for trial; (5) Asay’s counsel was ineffective for believing that a first degree
murder conviction in Asay’s 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)
Asay’s counsel was ineffective for advising Asay not to testify at trial and at
the Spencer hearing; (9) Asay’s counsel was ineffective for conceding Asay’s guilt
during closing argument; (10) Florida’s capital sentencing scheme is
unconstitutional under Ring v. Arizona,
suppressing numerous documents Asay recently received. The circuit court summarily denied all four claims and Asay’s motion for a stay of execution. Asay now appeals the denial to this Court.
ANALYSIS
Asay raises four claims in this appeal: (1) Asay’s death sentence is
unconstitutional under Hurst v. Florida because a judge, rather than a jury, made
certain findings to make Asay eligible for a sentence of death; (2) the circuit court
erred in denying an evidentiary hearing as to Asay’s newly discovered evidence,
*11
Brady,
[10]
and Strickland
[11]
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,
I. CONSTITUTIONALITY UNDER HURST v. FLORIDA
10. Brady,
11. Strickland v. Washington,
*12
Asay argues that his death sentence is unconstitutional under the United
States Supreme Court’s decision in Hurst v. Florida. In that case, the Supreme
Court reversed our decision in Hurst v. State,
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.
*13
A. Ring and Hurst v. State
In Ring, the United States Supreme Court held the Arizona capital
sentencing statute unconstitutional “to the extent that it allows a sentencing judge,
sitting without a jury, to find an aggravating circumstance necessary for imposition
of the death penalty.” Id. at 609. The Court endorsed the holding of Apprendi v.
New Jersey,
When discussing its prior holdings pertaining to Florida and Arizona, the
Supreme Court cited both Walton,
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
*15
mentioning that case. In a sharply divided opinion issued in Bottoson v. Moore,
13. See Bottoson v. State,
On direct appeal in Hurst v. State, this Court addressed a resentencing in
which a jury recommended death but made no explicit findings as to whether the
defendant qualified for a death sentence, and then the judge, in a separate hearing,
followed the recommendation, concluding that sufficient aggravators were present
and were not outweighed by the mitigation. Hurst v. State,
The United States Supreme Court granted certiorari and reversed this
Court’s decision, holding that Florida’s sentencing scheme in death penalty cases
is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to
*17
find each fact necessary to impose a sentence of death. A jury’s mere
recommendation is not enough.” Hurst v. Florida,
Court described Florida’s capital procedure:
First-degree murder is a capital felony in Florida. See Fla. Stat. § 782.04(1)(a) (2010). Under state law, the maximum sentence a capital felon may receive on the basis of the conviction alone is life imprisonment. § 775.082(1). “A person who has been convicted of a capital felony shall be punished by death” only if an additional sentencing proceeding “results in findings by the court that such person shall be punished by death.” Ibid. “[O]therwise such person shall be punished by life imprisonment and shall be ineligible for parole.” Ibid.
The additional sentencing proceeding Florida employs is a “hybrid” proceeding “in which [a] jury renders an advisory verdict but the judge makes the ultimate sentencing determinations.” Ring v. Arizona,536 U.S. 584 , 608, n.6 (2002). First, the sentencing judge conducts an evidentiary hearing before a jury. Fla. Stat. § 921.141(1) (2010). Next, the jury renders an “advisory sentence” of life or death without specifying the factual basis of its recommendation. § 921.141(2). “Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death.” § 921.141(3). If the court imposes death, it must “set forth in writing its findings upon which the sentence of death is based.” Ibid. Although the judge must give the jury recommendation “great weight,” Tedder v. State,322 So. 2d 908 , 910 (Fla. 1975) (per curiam), the sentencing order must “reflect the trial judge’s independent judgment about the existence of aggravating and mitigating factors,” Blackwelder v. State,851 So. 2d 650 , 653 (Fla. 2003) (per curiam ).
Id. at 620.
The Supreme Court recognized that this Court rejected the defendant’s Sixth Amendment argument on the basis that Ring was inapplicable in light of the
Supreme Court’s “repeated support of Florida’s capital sentencing scheme in pre-
Ring 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,
The analysis the Ring Court applied to Arizona’s sentencing scheme applies equally to Florida’s. 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 jury’s 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 Hurst’s
authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst’s sentence violates the Sixth Amendment. Id. at 621-22 (emphasis added).
In explicitly rejecting the argument that the jury’s death recommendation “necessarily included a finding of an aggravating circumstance,” the Supreme Court turned to Florida’s sentencing statute, which “does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death’ ” and requires that “the trial court alone must find ‘the facts . . . [t]hat sufficient aggravating circumstances exist’ and ‘[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.’ ” Id. at 621- 22 (quoting § 921.141(3), Fla. Stat.) (last emphasis added). Accordingly, the High Court concluded that in Florida, the advisory recommendation by the jury could not be considered the necessary factual finding that Ring requires. Id.
The Supreme Court further rejected the claim that stare decisis required Florida’s capital sentencing scheme to be upheld. Id. at 623. Instead, the Court expressly overruled its prior decisions in Hildwin and Spaziano v. Florida, 468 U.S. 447 (1984), as irreconcilable with Apprendi. The Court did not address whether Florida’s sentencing scheme violated the Eighth Amendment. The Supreme Court also left to this Court the decision of whether and how to apply Hurst v. Florida and whether any Hurst v. Florida error can be harmless.
B. Meaning of Hurst v. Florida
Asay and the State fundamentally disagree as to the meaning of Hurst v.
Florida. The State asserts that only one aggravator must be found by the jury to
satisfy Hurst v. Florida, pointing to language in the Hurst v. Florida opinion that
supports this interpretation. Asay, on the other hand, asserts that under section
921.141, Florida Statutes the jury must find both that “sufficient aggravators” exist
and that there are insufficient mitigating factors because those are the “facts”
required to be found before the death penalty can be imposed. As we have
explained fully in Hurst, “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,
whether Hurst v. Florida applies retroactively to Asay.
C. Retroactivity
Now that the United States Supreme Court has overruled Hildwin and held
that Florida’s hybrid sentencing scheme violates the Sixth Amendment right to trial
by jury, Asay contends that this Court should apply Hurst v. Florida retroactively.
In order to answer this question, we must first look to our decision in Johnson v.
*21
State,
In addressing whether Ring should apply retroactively, this Court announced
in Johnson that despite the federal courts’ use of Teague v. Lane,
15. The Supreme Court has also acknowledged that a Teague analysis is
very narrow, particularly if a court considers the new rule to be procedural. See
Montgomery v. Louisiana,
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,
In addition, our retroactivity analysis in Johnson hinged upon our understanding of Ring’s application to Florida’s 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
*23
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,
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.
*24 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 Stovall [16] 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.”
16. Stovall v. Denno,
17. Linkletter v. Walker,
*25 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,
The importance of the right to a jury trial has been recognized since this
country’s 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 jury’s 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,
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, Florida’s 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 consistently recognized the importance of a defendant’s right to a jury trial, calling it “indisputably one of the most basic rights guaranteed by our constitution.” State v. Griffith, 561 So. 2d 528, 530 (Fla. 1990).
The underpinnings of Hurst v. Florida, requiring that the jury make all the factual findings necessary to impose a death sentence, are based on the critical right to a jury trial: one of the guarantees set forth in the Bill of Rights since our country’s—and this State’s—inception. The right to a jury trial not only ensures a defendant’s guilt is accurately determined, but also that any decision on the matter is made by a group of the defendant’s peers—as opposed to a member of the government. Our citizens place their trust in our criminal justice system in large part because the citizens themselves are the crucial element in determining a defendant’s guilt or innocence.
Further, as is apparent, the 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 different.”
See, e.g., Yacob v. State,
2. Reliance on the Old Rule
The next and most important factor is the extent of reliance on the old rule—
in this case, the principle that the judge could make the factual determinations
necessary to impose death and that a jury determination of those facts was not
required. Florida was the first state to revise its death penalty statute in 1972 after
the death penalty was declared unconstitutional in all states as violative of the
Eighth Amendment in Furman v. Georgia,
Death is a unique punishment in its finality and in its total rejection of the possibility of rehabilitation. It is proper, therefore, that the Legislature has chosen to reserve its application to only the most aggravated and unmitigated of most serious crimes. In so doing, the Legislature has also recognized the inability of man to predict the myriad tortuous paths which criminality can choose to follow. If such a prediction could be made, the Legislature could have merely programmed a judicial computer with all of the possible aggravating factors and all of the possible mitigating factors included—with ranges of possible impact of each—and provided for the imposition of death under certain circumstances, and for the imposition of a life sentence under other circumstances. However, such a computer could never be fully programmed for every possible situation, and computer justice is, therefore, an impossibility. The Legislature has, instead, provided a system whereby the possible aggravating and mitigating circumstances are defined, but where the weighing process is left to the carefully scrutinized judgment of jurors and judges.
Id. at 7. In discussing the role of the jury as one of the five steps in Florida’s death penalty scheme, this Court in Dixon elaborated:
The second step of the sentencing procedure is that the jury— the trial jury if there was one, or a specially called jury if jury trial was waived—must hear the new evidence presented at the post-conviction hearing and make a recommendation as to penalty, that is, life or death. With the issue of guilt or innocence disposed of, the jury can then view the question of penalty as a separate and distinct issue. The fact that the defendant has committed the crime no longer determines automatically that he must die in the absence of a mercy recommendation. They must consider from the facts presented to them—facts in addition to those necessary to prove the commission of the crime—whether the crime was accompanied by aggravating circumstances sufficient to require death, or whether there were mitigating circumstances which require a lesser penalty.
Id. at 8. Ultimately, the Court upheld Florida’s revised capital sentencing statute as constitutional under the Eighth Amendment.
Rather than viewing aggravators as part of the jury’s ultimate determination—such as guilt or innocence, which has always been recognized as within the Sixth Amendment right to trial by jury—states 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 Florida’s and Arizona’s sentencing schemes under the Sixth Amendment, and later in Spaziano, where Florida’s statute was also upheld against an Eighth Amendment challenge.
Over time, however, various legislatures extended a trial court’s authority to
make factual determinations in a way that exposed defendants to higher sentences
than authorized by a jury’s verdict alone, amending criminal statutes in noncapital
cases to include “sentencing factors” where the judge found specified facts after
the jury’s verdict to increase the sentence. See, e.g., Apprendi,
This Court relied upon that precedent, which had categorically rejected Sixth
Amendment challenges to the capital sentencing statute and held Florida’s capital
sentencing scheme to be constitutional. See Hildwin,
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 Asay’s conviction and sentence were affirmed on *31 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 Court’s 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 Court’s 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. Dep’t 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,
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 Asay’s 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 Florida’s 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,
As this Court recognized in Johnson, this factor weighs heavily against
retroactive application. At the time Johnson was decided, approximately 367
defendants were on Florida’s Death Row, and at the present time, there are 386 defendants on death row. See Fla. Dep’t 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”) (last visited October 13, 2016). Of
those defendants currently on death row, approximately 45 percent have sentences
that were final before the Supreme Court issued Ring. In addition to the fact that
there are a substantial number of death sentences the finality of which would be
upended, nearly half of those defendants committed their crimes and had their
sentences upheld decades ago. As this Court explained in Johnson:
The retroactive application of Ring in Florida would require
reconsideration of hundreds of cases to determine whether a new
penalty phase is warranted. This reconsideration alone would be a
major undertaking. Even though we have rejected numerous Ring
claims in postconviction proceedings on grounds other than non-
retroactivity, such as existence of a prior violent felony conviction
aggravator or a unanimous death recommendation, the United States
Supreme Court has not addressed whether these distinctions comport
with the Sixth Amendment. One member of this Court, relying on the
decision of the Arizona Supreme Court on remand in Ring, has
dissented from our conclusion that a single Ring-exempt aggravator
permits reliance on other aggravators found solely by the trial judge.
See Duest v. State,
Resentencing hearings necessitated by retroactive application of
Ring would be problematic. For prosecutors and defense attorneys to
*34
reassemble witnesses and evidence literally decades after an earlier
conviction would be extremely difficult. We fear that any new
penalty phase proceedings would actually be less complete and
therefore less (not more) accurate than the proceedings they would
replace. As we explained in State v. Glenn,
Glenn,
4. Conclusion of Retroactivity Analysis After weighing all three of the above factors, we conclude that Hurst should not be applied retroactively to Asay’s 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 *36 Hurst retroactively to all death case litigation in Florida. Accordingly, we deny Asay relief.
II. DENIAL OF EVIDENTIARY HEARING ON ASAY’S CLAIMS
Asay argues that the circuit court erred in summarily denying his newly
discovered evidence and Brady/Strickland claims. Because a circuit court’s
decision to grant an evidentiary hearing on a rule 3.851 motion is ultimately based
on written materials before the court, its ruling is tantamount to a pure question of
law, subject to de novo review. Long v. State,
A. Newly Discovered Evidence
Asay raises his newly discovered evidence claim based on the sworn
affidavit of ballistics expert William A. Tobin, Ph.D. The summary denial of a
*37
newly discovered evidence claim will be upheld if the motion is legally insufficient
or its allegations are conclusively refuted by the record. McLin,
(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,
Applying the standard to this case, we agree with the circuit court’s
conclusion that Tobin’s 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,
Here, Tobin’s affidavit asserts that National Research Council reports from 2008 and 2009 show ballistic testimony in Asay’s 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 agency’s prior testimony. See id. at 101; Smith v.
State,
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 witness’s ownership of a gun fitting the profile of the murder weapon, and information impeaching Charlie Moore’s 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,
The impeachment evidence of Charlie Moore may not be considered for the
purposes of this claim because it was previously raised as part of an ineffective
assistance of counsel claim within Asay’s initial postconviction motion. See Asay
II,
As to the remaining evidence underlying Asay’s Strickland claims, Asay did not plead his Strickland claim separately from his Brady claim before the circuit court, except to allege generally that “[t]o the extent that counsel was or should have been aware of this [Brady] information, counsel was ineffective in failing to *41 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
counsel’s performance was deficient or prejudiced Asay. See Jones 998 So. 2d at
587; Connor v. State,
C. Brady Claims
*42
The summary denial of a Brady claim is upheld if the motion is legally
insufficient or its allegations are conclusively refuted by the record. See id. This
Court discussed the elements of this claim in Franqui v. State,
To demonstrate a Brady violation, the defendant has the burden to show (1) that favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. To meet the materiality prong of Brady, the defendant must demonstrate a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. . . . [M]ateriality under Brady requires a probability sufficient to undermine confidence in the outcome. [For t]he materiality inquiry . . . the question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. It is the net effect of the evidence that must be assessed.
Id. at 101-02 (internal citations omitted).
As noted above, Asay previously raised a Strickland claim based on the
Charlie Moore impeachment evidence. See Asay II,
As to the other Brady/Strickland evidence, Asay contends that the existence
of another initial suspect and a witness’s ownership of a gun fitting the profile of
the murder weapon support speculation that Asay did not shoot Booker. Asay
pleads generally that it is exculpatory, was suppressed by the State, and is material,
such that he was prejudiced. However, the record conclusively shows that the
alleged evidence is not material such that its alleged suppression prejudiced him.
Franqui,
D. Cumulative Prejudice
Asay contends that his newly discovered evidence, when considered
cumulatively with his Brady/Strickland evidence, undermines confidence in the
results of his proceeding. See Swafford v. State,
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 Attorney’s Office and the Jacksonville Sheriff’s Office recreated their original disclosures of public records. The State attached these public records to an e-mail, sent them to Asay’s counsel, and copied the e-mail to the circuit court. The attachments were not introduced *45 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 Sheriff’s Office. The circuit court relied on these records to deny Asay’s Brady claim that Detective Housend failed to provide trial counsel with information about Roland Pough as a suspect in Booker’s shooting. Both documents were part of the public records sent to Asay’s 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,
Here, Asay failed to object to the circuit court’s 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 court’s receipt of the public records. Because there was no violation of due process, the circuit court’s 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., Asay’s counsel e- mailed 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 court’s ruling was improper. Asay’s 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 judge’s judicial assistant attempted to arrange a hearing on the State’s motion; however, Asay’s counsel responded that he would not be available at all that day.
At 3:02 p.m., the State e-mailed Asay’s counsel a notice of hearing via the e- portal. At 3:14 p.m., the judge e-mailed Asay’s counsel that the hearing could be *47 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 State’s motion without opposing counsel present. During the hearing, the circuit court noted that it received e-mails from Asay’s 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 Court’s 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., Asay’s 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,
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,
Asay contends that the lack of counsel for ten years violated his right to due process and equal protection. Moreover, Asay argues that the court’s late *49 appointment of counsel and the lack of records rendered his counsel’s 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,
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 *50 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
Asay’s 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 counsel’s 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 defendant’s 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
Finally, Asay argues that the late appointment of registry counsel and the
lack of records rendered counsel’s 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,
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 Asay’s entire medical record, as well as the entire inmate file. The State Attorney’s Office provided counsel with its entire file, which included many of the original public *52 records requests made during the initial postconviction proceedings. Additionally, the Florida Department of Law Enforcement and the Jacksonville Sheriff’s Office provided counsel with all the materials they had. Every state agency involved attempted to recreate the records.
However, even if some records have been permanently lost or destroyed, the
loss or destruction of files does not necessarily amount to a due process violation.
See, e.g., Jones v. State,
CONCLUSION
Because Asay has failed to demonstrate that he is entitled to relief as to any of his claims, we affirm the circuit court’s summary denial of his motion for postconviction relief and deny his petition to this Court for a writ of habeas corpus. Additionally, we lift the stay entered on March 2, 2016.
It is so ordered. LABARGA, C.J., and QUINCE, and POLSTON, JJ., concur.
LABARGA, C.J., concurs with an opinion.
POLSTON, J., concurs with an opinion.
LEWIS, J., concurs in result with an opinion.
CANADY, J., concurs in result only.
PARIENTE, J., concurs in part and dissents in part with an opinion.
PERRY, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
LABARGA, C.J., concurring.
I concur in the conclusion of the majority that Hurst v. Florida and Hurst do not apply retroactively to those defendants whose death sentences became final prior to the issuance of Ring. However, I write separately to express my view that our decision today does not apply to those defendants whose death sentences were imposed based upon, and who are facing execution solely as a result of, a judicial override. There are only two death row defendants who satisfy this criteria— Matthew Marshall and William Zeigler, Jr. [19] The impact of Hurst v. Florida and Hurst upon their death sentences is an issue for another day.
19. There is a third defendant who has a death sentence as a result of an
override—Edward J. Zakrzewski, II. However, Zakrzewski received two
additional death sentences for murders for which a jury issued recommendations of
death. See Zakrzewski v. State,
I agree with the majority that Hurst v. Florida,
However, while I agree with the majority that Hurst v. Florida is not
retroactive to pre-Ring cases under Witt v. State,
LEWIS, J., concurring in result.
I agree with most of the conclusions set forth in the majority opinion. However, in my view, the majority opinion has incorrectly limited the retroactive *55 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 Florida’s 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,
Preservation of the issue is perhaps the most basic tenet of appellate
review, see Steinhorst v. State,
Jurists have echoed this type of approach as a remedy to the more exacting
federal Teague standard.
[21]
Federal courts have employed a similar preservation
approach, and it is “one of the dominant means by which federal courts limit the
disruptive effects of legal change in the context of direct review of federal criminal
convictions.”
[22]
Regardless of the limited federal approach, scholars urge state
courts to pull retroactivity off Teague’s constitutional floor,
[23]
which the Supreme
Court expressly permitted in Danforth v. Minnesota.
21. Tung Yin, A Better Mousetrap: Procedural Default as a Retroactivity Alternative to Teague v. Lane and the Antiterrorism and Effective Death Penalty Act of 1996, 25 Am. J. Crim. L. 203, 232 (1998).
22. Toby J. Heytens, Managing Transitional Moments in Criminal Cases, 115 Yale L.J. 922, 942 (2006).
23. Christopher N. Lasch, The Future of Teague Retroactivity, or “Redressability,” After Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings, 46 Am. Crim. L. Rev. 1, 51-54 (2009).
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,
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 don’t make a right”; yet, this Court essentially 24. See generally, Christopher M. Smith, Schriro v. Summerlin: A Fatal Accident of Timing, 54 DePaul L. Rev. 1325 (2005).
*59 condones that outcome with its very limited interpretation of Hurst’s retroactivity and application.
PARIENTE, J., concurring in part and dissenting in part.
Our recent decision in Hurst
[25]
is undoubtedly a decision of fundamental
constitutional significance based not only on the United States Supreme Court’s
decision in Hurst v. Florida,
[26]
but also on Florida’s 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 Florida’s 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 Florida’s
constitutional right to a trial by jury under article I, section 22, of the Florida
Constitution. Hurst,
Applying decisions of fundamental constitutional significance retroactively
to defendants in similar circumstances is essential to “ensuring fairness and
25. Hurst v. State (Hurst),
26. Hurst v. Florida (Hurst v. Florida),
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.”
28. See, e.g., Johnson v. State,
29. I agree with the majority’s denial of relief on Asay’s second, third, and fourth claims respectively, and thus would not overturn Asay’s conviction. Majority op. at 10-11, 52.
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 majority’s 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 Court’s holding in Hurst and applied in our holding in Perry v. State, 41 Fla. L. Weekly S449 (Fla. Oct. 14, 2016), invalidating Florida’s revised 2016 death penalty sentencing statute for its failure to require unanimity in the jury’s final recommendation of death. While I cannot agree with Justice Perry’s 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 death—namely 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.
Ultimately, when applying the retroactivity equation of balancing “the
justice system’s goals of fairness and finality” in this circumstance, fairness must
prevail over finality. Ferguson v. State,
A retroactivity analysis under Witt consists of three prongs. Witt, 387 So.
2d at 931. The majority opinion explains how the Hurst v. Florida decision meets
the first two prongs of a Witt retroactivity analysis; it undoubtedly emanates from
the United States Supreme Court and is clearly constitutional in nature. Majority
op. at 24; see Witt,
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 country’s 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 jury’s 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,
31. Linkletter v. Walker,
*64 consistently recognized the importance of a defendant’s right to a jury trial, calling it “indisputably one of the most basic rights guaranteed by our constitution.” State v. Griffith,561 So. 2d 528 , 530 (Fla. 1990).
The underpinnings of Hurst v. Florida, requiring that the jury make all the factual findings necessary to impose a death sentence, are based on the critical right to a jury trial: one of the guarantees set forth in the Bill of Rights since our country’s—and this State’s—inception. The right to a jury trial not only ensures a defendant’s guilt is accurately determined, but also that any decision on the matter is made by a group of the defendant’s peers—as opposed to a member of the government. Our citizens place their trust in our criminal justice system in large part because the citizens themselves are the crucial element in determining a defendant’s guilt or innocence.
Majority op. at 25-26. In light of our recent holding in Hurst, emphasizing the fundamental constitutional significance of the right to trial by jury under both the United States and Florida Constitutions and the role unanimity plays in ensuring fairness and reliability in the imposition of death, I agree with the majority that the purpose of the new rule weighs in favor of retroactive application.
Further emphasizing the importance of the right to trial by jury, Justice
Anstead explained in his concurring in part and dissenting in part opinion in
Johnson v. State,
The right to a jury trial is not only recognized as the most important right involving our justice system set out in our constitution, its roots rest in the most revered legal document of our Anglo-American legal tradition, the Magna Carta. Countless thousands of English and American patriots have recognized and defended the right of jury trial as the very foundation of our justice system. In 1762, David Hume, the English philosopher, wrote that “trial by jury is the best institution *65 calculated for the preservation of liberty and the administration of justice that was ever devised by the wit of man.” Similarly, Thomas Jefferson declared in 1788, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” See J. Kendall Few, In Defense of Trial by Jury 214, 311, American Jury Trial Foundation (1993). . . . Indeed, this Court’s first chief justice, Chief Justice Douglas, eloquently assessed the importance of this right in 1848 when he spoke for a unanimous Court in declaring:
When however it is remembered with what jealous and scrupulous regard “the right of trial by jury” has ever been cherished and preserved by our Anglo Saxon ancestors, and by the Fathers of the revolution of 1776, a regard transmitted to us their descendants not only with unabated attachment, but if possible with increased interest and regard—a Magna Charta shielding every one in the enjoyment of life liberty and property: When these things are borne in mind and a Legislative act in its terms abridges this hallowed right, or its provisions are subversive of the principles of natural justice and against common reason and common right, the duty of the court, though unpleasant and even painful, is too obvious to be doubted or denied.
Flint River Steam Boat Co. v. Roberts, Allen & Co.,2 Fla. 102 , 115 (1848).
Johnson,
Turning to the extent of reliance on the old rule, which the majority states is the “most important factor” when determining whether the new rule constitutes a development of fundamental significance, the majority determines that this factor militates against a finding of retroactivity due to the number of defendants currently on Florida’s death row and the number of executions in this State since 1976. Majority op. at 27, 31. Presumably, then, under that same reasoning, if *66 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,
*67 Hurst, and which the Delaware Supreme Court recently held applies retroactively under the more restrictive Teague [33] 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,
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.”
34. See Powell v. Delaware, No. 310, 2016,
factors outweigh the mitigating circumstances—“promotes a thorough and reasoned resolution,” thereby stabilizing capital sentencing by ensuring that sentences of death are constitutional. [35] Undoubtedly, the justice system would be affected if this Court applied Hurst retroactively to all defendants on death row in Florida, but I conclude that this impact does not justify the injustice that results from not granting relief to all eligible capital defendants presently on Florida’s death row.
For these reasons, I conclude that Hurst should apply to all defendants who
were sentenced to death under Florida’s prior, unconstitutional capital sentencing scheme. The majority’s conclusion results in an unintended arbitrariness as to who receives relief depending on when the defendant was sentenced or, in some cases, resentenced. For example, many defendants whose crimes were committed before 2002 will receive the benefit of Hurst because they were previously granted a resentencing on other grounds and their newest death sentence was not final when Ring was decided. [36] To avoid such arbitrariness and to ensure uniformity and 35. Am. Bar Ass’n 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,
Because I would apply Hurst to Asay’s case, I now turn to whether the Hurst
error in Asay’s penalty phase was harmless beyond a reasonable doubt. On
remand from the United States Supreme Court, this Court determined that such
error is capable of harmless error review and set forth the test for such review.
Hurst,
PERRY, J., dissenting.
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. *70 I cannot agree with the majority’s decision to limit the retroactive application of Hurst v. Florida to those cases that were not final when the United States Supreme Court decided Ring. In my opinion, the line drawn by the majority is arbitrary and cannot withstand scrutiny under the Eighth Amendment because it creates an arbitrary application of law to two groups of similarly situated persons. Coupled with Florida’s troubled history in applying the death penalty in a discriminatory manner, [37] I believe that such an application is unconstitutional. I therefore dissent.
Asay will be the first white person executed for the murder of a black person in this State. See Frank R. Baumgartner, The Impact of Race, Gender, and Geography on Florida Executions,
http://www.unc.edu/~fbaum/articles/Baumgartner-Florida-executions-Jan2016.pdf (January 14, 2016); (“No White person has been executed in Florida for a homicide involving a Black victim. In contrast, 71 percent of the executions carried out against Black inmates were for homicides involving White victims.”); see also Michael Radelet, Glenn L. Pierce, Choosing Those Who Will Die: Race 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.
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,
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 binary—either something is retroactive, has effect on the past, or it is not.
The majority’s opinion is inconsistent with our analysis of principles of
fairness in our recent decision Falcon v. State,
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,
Death penalty cases should be treated as a “class apart” from non-death
penalty cases. Furman v. Georgia,
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, 2002—the 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.
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 majority’s 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.
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 Admin’r, Florida’s Trial Courts Statistical Reference Guide: FY 2014-15, ch. 2, at
4 (2015), http://flcourts.org/core/fileparse.php/541/urlt/20150901-Chapter- 2_Overall-Statistics_accessible.pdf. In light of this Court’s 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 Legislature’s 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 *76 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,
In light of the relatively few number of capital cases in proportion to the
judiciary’s 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,
41. Hurst’s sentence was later vacated in 2009.
*78
release, it entitled some 2295 prisoners nationwide to resentencing proceedings or
parole hearings. See Montgomery v. Alabama,
Because I would find that Asay is entitled to the constitutional protections
articulated in Hurst v. Florida, I turn now to what I would find to be the
appropriate remedy. As I explained fully in Hurst v. State,
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,
The sentencing court unconstitutionally imposed the death penalty on Asay.
Accordingly, “the death penalty in [Asay’s] 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
*80
Legislature. See, e.g., English v. State,
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