John F. Mosley v. State of Florida & SC14-2108 John F. Mosley v. Julie L. Jones, etc.

Supreme Court of Florida
____________
No. SC14-436
____________
JOHN F. MOSLEY,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC14-2108
____________
JOHN F. MOSLEY,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[December 22, 2016]
PER CURIAM.
John F. Mosley was convicted of two counts of first-degree murder for the
April 2004 deaths of his girlfriend, Lynda Wilkes, and their infant son, Jay-Quan
Mosley. He received a sentence of death for the murder of his son, Jay-Quan, and
a sentence of life imprisonment for the murder of Wilkes. This Court affirmed his
convictions and sentence of death. Mosley v. State, 46 So. 3d 510 (Fla. 2009).
Mosley now appeals the denial of his initial motion for postconviction relief,
filed pursuant to Florida Rule of Criminal Procedure 3.851, and simultaneously
petitions this Court 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
postconviction court’s denial of relief for a new trial but grant Mosley a new
penalty phase based on the United States Supreme Court’s decision in Hurst v.
Florida (Hurst v. Florida), 136 S. Ct. 616 (2016), and our decision in Hurst v. State
(Hurst), 202 So. 3d 40 (Fla. 2016).
FACTS
On direct appeal, this Court summarized the relevant facts as follows:
Although Mosley was married, he had a number of romantic
relationships with other women in the Jacksonville area, including
Lynda Wilkes. Because Wilkes was receiving Medicaid benefits for
their son, Jay-Quan, she was required to participate in a proceeding to
establish paternity. After Mosley failed to answer the petition to
determine paternity, a default judgment was entered against him, and
he was ordered to pay $35 a week in child support, with an additional
$5 a week for retroactive child support. On March 12, 2004, Mosley
filed a motion to have the final judgment set aside. A hearing on this
motion was set for May 3, 2004.
Around this time period, Mosley, who was thirty-nine, met
Bernard Griffin, who was fifteen, and asked Griffin if he would be
willing to kill a baby. During his attempts to convince Griffin to kill
the child, Mosley pointed out Wilkes’s house and gave him a sketch
of the house’s layout, but Griffin refused.
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On April 21, 2004, Mosley went to see Wilkes at her house in
Jacksonville and asked Wilkes to meet him the next day at J.C.
Penney so he could take Jay-Quan shopping. On April 22, 2004,
Wilkes took her other children to school. That afternoon, she and Jay-
Quan met Mosley at J.C. Penney, and together they left in Mosley’s
vehicle, a burgundy Suburban. Mosley picked up Griffin, and
eventually drove to a deserted dirt road in another part of Jacksonville.
Mosley asked Wilkes to get out and pretended to look for something
in the seat. He then turned and strangled Wilkes, who futilely
attempted to defend herself. After she stopped moving, Mosley took a
plastic shopping bag from the back of the vehicle, put it over Wilkes’s
head, and put her body in the back of the Suburban. Mosley put a
crying Jay-Quan in another garbage bag, tied it, and also placed it in
the back of his vehicle. He used a blue tarp to cover Wilkes’s body
and the bag with the baby in it. Initially, Griffin heard the baby
crying, but after a while, the baby stopped. Mosley dropped Griffin
off and went to work.
Later that evening, while he was still at work, another of
Mosley’s girlfriends, Jamila Jones, called and asked him for some gas
money. He agreed that he would give her some money before she
needed to leave for work the next day. That evening, Mosley clocked
out of work at 11:01, and sometime after that picked up Griffin again
in his Suburban. Griffin noticed that the vehicle smelled bad. Mosley
drove out of Jacksonville towards Waldo, which was approximately
sixty miles from Jacksonville. A few miles south of Waldo, Mosley
turned and went down a number of dirt roads, eventually finding a
suitable spot to dispose of Wilkes’s body. After Griffin refused to
participate, Mosley pulled Wilkes to a clearing by himself, poured
lighter fluid over her body, and then tossed a burning rag on her body.
As the body began to burn, Mosley and Griffin ran to the vehicle and
left. Mosley then drove approximately forty miles further south to
Ocala and dumped the trash bag with the baby in a dumpster behind a
Winn-Dixie store. He also threw his shoes and gloves into the
dumpster. On the way back to Jacksonville, Mosley gave Griffin
$100.
Once they arrived in Jacksonville, it was daylight. After asking
Griffin to give him back $20, Mosley stopped by Jones’s apartment at
approximately six that morning and gave her $20. Jones asked
Mosley why he did not answer his cell phone when she tried to call
him the previous evening, and Mosley replied that he was “doing
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something for his mom.” Although Mosley was supposed to be back
at work at six that same morning, he called in and said that he would
be late because he did not get any sleep that night. He finally arrived
at work at 12:49 p.m. on April 23.
The victim’s family knew something was wrong when Wilkes
failed to pick up her children from school on the afternoon of April
22. The family called the police, reported Wilkes as missing, and
began a search for her and Jay-Quan immediately. During the
evening hours of April 22, they found her car abandoned at the J.C.
Penney’s parking lot.
On the morning after her disappearance (April 23), one of
Wilkes’s daughters (Naquita) and a family friend saw Mosley driving
his vehicle and caught up to him while he was stopped at a traffic
light. They told Mosley that Wilkes was missing. Initially, Mosley
denied seeing her. After Naquita asked Mosley whether he failed to
show up at J.C. Penney the previous day, Mosley admitted that he saw
Wilkes the day before but claimed that he had dropped her off at her
car. They asked Mosley if he could pull over, but he refused and
drove away.
On Saturday, April 24, Mosley changed all four tires on the
Suburban, despite the fact that the tires could be driven for a few more
thousand miles. Mosley was adamant that the mechanic load his old
tires into his vehicle.
During the investigation into Wilkes’s disappearance, the police
attempted to contact Mosley numerous times, trying to arrange for an
in-person interview. Mosley never met with any police officer until
after he was taken into custody, but he did talk to numerous officers
over the phone. He claimed that he and Wilkes met at the J.C.
Penney’s parking lot on April 22 and left to see some nearby houses
that Wilkes was considering renting. He further claimed that he
dropped her off back at her car around one that afternoon.
Days after the murder, after seeing news reports about the
missing woman and baby, Griffin told his mother that he knew
something about the case. He then talked to the police and eventually
led police to the locations where Mosley killed Wilkes, where he
burned her remains, and where he dumped the baby. Griffin was
subsequently convicted of two counts of being an accessory after the
fact for his involvement in the murders.
Based on Griffin’s assistance, the police were able to recover
Wilkes’s remains, which were badly burned. Wilkes’s watch, which
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was found with the burned body, stopped at 2:29. Mosley’s cellular
phone records established that at 2:24 a.m., on April 23, an outgoing
call was made from Mosley’s cellular phone, and the cellular antenna
used for this call was close to where Wilkes’s body was found.
Despite a diligent search for the baby’s body, the baby’s body was
never recovered.
Wilkes’s DNA was found on a carpet sample from the
Suburban. The medical examiner testified that after a person was
strangled to death, the body could exude pinkish blood from the nose
and mouth.
After Mosley was arrested, he wrote Jones a letter, asking her to
tell the police that he was alone when he came to her house on April
23 at 6:08 a.m. He also told her, “It is legal and okay to change your
statement in court if you let the jury know the police pressured and
coerced you to say something before they took the statement and
during the statement.” Mosley also talked to his wife, Carolyn
Mosley, asking her to “remember” that his mother stayed over that
night and that he came home from work that night at 11:30. He told
his wife that he needed her, their daughters, and his mother to write
notarized statements that he arrived home that night at 11:30 and was
there all night.
During his defense at trial, Mosley presented evidence through
his wife and daughters that he was at home the night that Griffin
claimed they disposed of the bodies. Mosley’s doctor also testified
that he was treating Mosley for some injuries sustained in a car
accident. While the doctor discussed Mosley’s injuries in depth, he
also admitted that the injuries would not have made it impossible for
Mosley to lift a body.
Mosley, 46 So. 3d at 514-16 (footnotes omitted). The jury convicted Mosley of
two counts of first-degree murder.
Following the penalty phase, the jury recommended a life sentence for the
murder of Lynda Wilkes and, by a vote of eight to four, recommended a sentence
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of death for the murder of Jay-Quan Mosley. The court held a Spencer1 hearing
and, after independently weighing the aggravating factors and mitigating
circumstances, agreed with the jury’s recommendation of death for the murder of
Jay-Quan. In imposing the death sentence for the murder of Jay-Quan, the trial
court found four aggravators applied, each of which was given great weight: (1)
the victim of the capital felony was under twelve years of age; (2) the murder was
cold, calculated, and premeditated (CCP); (3) the murder was committed for
pecuniary gain; and (4) the defendant had been previously convicted of a capital
felony (the contemporaneous murder of Wilkes). Mosley, 46 So. 3d at 517 n.6.
The trial court determined that twenty-nine nonstatutory mitigating circumstances
applied,2 but found that they were outweighed by the significant aggravation and
1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
2. The trial court found the following mitigators: (1) Mosley was raised in a
broken home (little weight); (2) Mosley was an above-average high school student
(little weight); (3) Mosley was affected by seeing physical and sexual abuse at an
early age (little weight); (4) Mosley has the love and support of family members
(some weight); (5) Mosley was a good parent (little to no weight); (6) Mosley was
a good and respectful son to his mother, grandmother, and other family members
(some weight); (7) Mosley was a good friend to many (some weight); (8) Mosley
has shown no homicidal behavior and committed no violent acts since his arrest
(little weight); (9) Mosley has the potential to be a productive inmate (some
weight); (10) Mosley was a good worker and maintained steady employment
throughout his adult life (some weight); (11) Mosley was a patriotic citizen (little
weight); (12) Mosley was never disciplined or reprimanded for his performance of
his duties while in the Navy Reserve (little weight); (13) Mosley completed an
extended program to receive an emergency medical care certificate (some weight);
(14) Mosley was a volunteer recreational coordinator for a tenant advisory council
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thus sentenced Mosley to death for the murder of his son. On direct appeal, this
Court affirmed Mosley’s convictions and sentences, including the sentence of
death.3
(little weight); (15) Mosley completed an extensive program to receive a diploma
certificate from the Division of State Fire Marshal for the volunteer basic course
(some weight); (16) Mosley successfully completed the certified nursing assistant
program from the Department of Health (some weight); (17) Mosley mentored
numerous teenagers and helped them with school and other activities (little
weight); (18) Mosley is intelligent (little to no weight); (19) the murders were an
aberrant act for Mosley that did not fit his life history (little to no weight); (20)
Mosley was mentally abused as a child (little weight); (21) Mosley was a Boy
Scout in his early years (little weight); (22) Mosley completed law enforcement
training (some weight); (23) Mosley coached neighborhood youths in sports and
recreation (little weight); (24) Mosley was an active volunteer fireman at two local
stations (some weight); (25) Mosley was an active member of the PTA (little
weight); (26) the offense and all aggravating factors occurred in an extremely short
period of time (little to no weight); (27) Mosley encouraged others to remain in
school and complete their education (little weight); (28) Mosley demonstrated
appropriate courtroom behavior (little weight); and (29) the State’s and the trial
court’s treatment of Bernard Griffin was mitigating in nature (little weight). As to
the last mitigator involving Griffin, the trial court found nothing in the record to
suggest that the manner in which the State treated Griffin should mitigate or reduce
the sentence imposed against Mosley, particularly since the court found the
evidence “quite clear that Bernard Griffin became involved only because the
defendant took advantage of a young teenager . . . and turned that teenager into the
defendant’s assistant.” Mosley v. State, 46 So. 3d at 517 n.6.
3. On direct appeal, Mosley raised thirteen claims: (1) [T]he due process
clause of the Florida Constitution provides more protection to criminal defendants
than the United States Constitution; (2) the prosecutor made improper and
inflammatory remarks that deprived Mosley of a fair trial; (3) the trial court erred
in admitting the recorded husband-wife jail conversations; (4) the trial court erred
in denying Mosley’s motion for a continuance and for a mistrial based on a defense
witness who failed to appear at trial; (5) the trial court erred in including a
videotape of the defendant in shackles and jail garb among the materials delivered
to the jury room; (6) the trial court erred in effectively ruling that a double murder
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Mosley filed a postconviction motion, raising eighteen claims.4 The
postconviction court held an evidentiary hearing in which the following witnesses
automatically suffices as the “previously convicted of another capital felony”
aggravating circumstance; (7) the trial court erred in denying Mosley’s motion for
judgment of acquittal; (8) the trial court erred in denying Mosley’s motion for a
new trial because the guilty verdict was contrary to the weight of the evidence; (9)
the trial court erred in denying Mosley’s request for the standard jury instruction
which concerns pressure or threat against a witness; (10) Florida’s death penalty
scheme violates the Sixth Amendment and Ring v. Arizona, 536 U.S. 584 (2002);
(11) this Court’s comparative proportionality review of death sentences is
unconstitutional; (12) Mosley’s sentence of death is disproportionate; and (13)
lethal injection and Florida’s lethal injection procedures are unconstitutional.
Mosley, 46 So. 3d at 518 n.7.
4. Mosley raised the following postconviction claims: (1) trial counsel was
ineffective in failing to request an alibi jury instruction; (2) trial counsel was
ineffective in failing to exercise a cause or peremptory challenge to strike a
potential juror who was actually biased; (3) trial counsel was ineffective in failing
to present testimony of a deoxyribonucleic acid (DNA) expert at trial to rebut the
State’s DNA results; (4) trial counsel was ineffective in failing to request a United
Frye v. United States, 293 F. 1013 (Dist. D.C. 1923), hearing to exclude the State’s
DNA evidence as unreliable; (5) trial counsel was ineffective in failing to object to
prosecutorial misconduct during closing arguments; (6) the State violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to turn over to defense monitoring logs of
a Global Positioning Satellite (GPS) device that was attached to the defendant’s
vehicle; (7) the defendant was entitled to certain sealed records; (8) the defendant’s
trial was fraught with procedural and substantive errors; (9) the State violated
Brady by failing to inform the defense that Griffin was given a favorable plea and
preferential treatment in exchange for his testimony against Mosley; (10) the State
violated Giglio v. United States, 405 U.S. 150 (1972), by knowingly presenting
Griffin’s false testimony that he was not given a plea deal during the trial against
Mosley; (11) trial counsel was ineffective in failing to investigate and present
critical documents at trial or failing to call known and available witnesses; (12)
trial counsel was ineffective in discussing Mosley’s extramarital relationships in
front of the jury; (13) trial counsel was ineffective in failing to file a motion to
obtain the transcripts from the grand jury proceedings and failing to file a motion
to dismiss the indictment; (14) the evidence used to convict him was insufficient;
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testified: John Mosley himself, Bernard Griffin, Mosley’s trial attorneys, Mosley’s
private investigator, various detectives and police officers who worked on the
murder investigation, and the State Attorney’s investigator.
After considering the testimony, the postconviction court denied relief. This
appeal follows. Mosley also petitions this Court for a writ of habeas corpus.
ANALYSIS
I. Rule 3.851 Claims
On appeal to this Court, Mosley raises numerous claims challenging the
postconviction court’s denial of relief. In his first three claims, Mosley alleges that
he is entitled to relief based on violations of Brady and Giglio, and a claim of
newly discovered evidence—claims that all involve whether the State’s key
witness, Bernard Griffin, had an undisclosed plea deal with the State or was given
favorable treatment in exchange for his damaging testimony against Mosley. In
addition, Mosley alleged that his trial counsel was deficient in failing to move to
strike a certain juror, to request an alibi jury instruction, and to object to improper
(15) trial counsel was ineffective in failing to file motions to suppress irrelevant
evidence that misled the jury; (16) trial counsel was ineffective in failing to
challenge a material variance in the indictment; (17) Mosley’s constitutional rights
were violated by a material variance in the indictment; and (18) newly discovered
evidence demonstrates that Griffin lied at trial when he testified that he did not
have a deal with the State. He also asserted that Florida’s capital sentencing statute
is unconstitutional.
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statements by the prosecutor. Finally, Mosley contends that he is entitled to relief
based on cumulative error.
A. Undisclosed Favorable Treatment of the State’s Key Witness
Mosley first contends that he recently learned that the State’s key witness,
Bernard Griffin, was given favorable treatment both before he testified and
afterwards—information that was previously not disclosed—and this information
entitles him to relief. Mosley brings this claim alternatively under Brady, Giglio,
and newly discovered evidence.
In Mungin v. State, 79 So. 3d 726, 734 (Fla. 2011), this Court explained the
differences between these three claims. To establish a Brady claim:
[T]he defendant must demonstrate that (1) 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. Strickler v. Greene, 527 U.S. 263, 281-
82 (1999); Way v. State, 760 So. 2d 903, 910 (Fla. 2000). To meet
the materiality prong, 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.” Way, 760 So. 2d
at 913 (quoting United States v. Bagley, 473 U.S. [667,] 682
[(1985))]. A reasonable probability is a probability sufficient to
undermine this Court’s confidence in the outcome. Id.; see also
Strickler, 527 U.S. at 290. However, in making this determination, a
court cannot “simply discount[ ] the inculpatory evidence in light of
the undisclosed evidence and determin[e] if the remaining evidence is
sufficient.” Franqui v. State, 59 So. 3d 82, 102 (Fla. 2011). “It is the
net effect of the evidence that must be assessed.” Jones v. State, 709
So. 2d 512, 521 (Fla. 1998).
Id. (second set of alterations in original). In contrast, under Giglio,
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“[A] defendant must show that: (1) the prosecutor presented or failed
to correct false testimony; (2) the prosecutor knew the testimony was
false; and (3) the false evidence was material.” Rhodes v. State, 986
So. 2d 501, 508-09 (Fla. 2008). As to the knowledge prong, in
Guzman v. State, 868 So. 2d 498 (Fla. 2003), we have clarified that
Giglio is satisfied where the lead detective testifies falsely at trial
because the “knowledge of the detective . . . is imputed to the
prosecutor who tried the case.” Id. at 505.
The materiality prong of Giglio is more defense-friendly than in
a Brady claim. See Davis v. State, 26 So. 3d 519, 532 (Fla. 2009)
(“[T]he standard applied under the third prong of the Giglio test is
more defense friendly than the test . . . applied to a violation under
Brady.”). While under Brady, evidence is material if a defendant can
show “a reasonable probability that . . . the result . . . would have been
different,” Way, 760 So. 2d at 913 (emphasis added), under Giglio,
the evidence is considered material simply “if there is any reasonable
possibility that it could have affected the jury’s verdict.” Rhodes, 986
So. 2d at 509 (emphasis added).
Id. at 738. Finally, in order to prevail under a newly discovered evidence claim,
(1) “the evidence 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 the evidence] by the use of diligence”; and (2) the evidence
“must be of such nature that it would probably produce an acquittal on retrial.” Id.
(quoting Jones, 709 So. 2d at 521).
In this case, the postconviction court, after holding an evidentiary hearing,
denied this claim based on specific findings that Mosley’s witnesses were not as
credible as the State’s witnesses, including the prosecutor who testified that no deal
existed. In an extremely detailed order, the postconviction court explained its
findings of fact and conclusions of law in denying the Brady claim as follows:
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The State charged Mr. Griffin with two counts of accessory
after the fact for the murders of Ms. Wilkes and Jay-Quan. This
offense is a first degree felony, punishable by up to thirty years in
prison. At the time of Defendant’s trial, Mr. Griffin maintained a not
guilty plea. Mr. Griffin later pleaded guilty to these charges and was
sentenced to two years of community control, followed by eight years
of probation.
At Defendant’s trial, Mr. Griffin stated he agreed to testify
truthfully, he did not know how much time he was facing, no one
promised anything in exchange for his testimony, the prosecutors
never suggested what sentence the court would impose, and he did not
hope to get some benefit from testifying against Defendant. When
asked if the State promised to get him a job, Mr. Griffin said, “No.
Ain’t even bring up nothing like that.” Mr. Griffin also testified that
the prosecutors did not talk to him about what would happen at the
trial.
In a phone call with his aunt, Mr. Griffin said, “Yeah, he said I
won’t be getting no prison time or nothing like that,” and “They going
to help me get a job when I get out.” At trial, Mr. Griffin admitted
that he lied to his aunt to reassure his family that he was fine.
Defendant’s postconviction counsel presented an affidavit at the
evidentiary hearing that Mr. Griffin signed on January 7, 2013,
wherein Mr. Griffin made thirteen assertions, including the following
pertinent assertions: (4) Mr. Griffin was brought to the State
Attorney’s Office “dozens of times” to meet with Ms. Senterfitt, the
lead prosecutor on Defendant’s case; (5) John Guy, another
prosecutor, joined Ms. Senterfitt at four or five of these meetings; (6)
Ms. Senterfitt told Mr. Griffin the State would charge him with first-
degree murder if he did not cooperate with and testify for the State,
and the prosecutors discussed Mr. Griffin’s trial testimony and his
prior inconsistent statements; (7) Mr. Griffin did not enter a plea
before testifying in Defendant’s case, and Ms. Senterfitt “repeatedly”
assured Mr. Griffin that if he cooperated he would get little jail time
and/or probation; (9) Mr. Griffin told his grandmother, prior to trial,
the truth when he said he was not going to get prison time and that
somebody was helping him; (10) the State gave Mr. Griffin Chinese
food for dinner the night before he testified in Defendant’s trial, and
Defendant ate the food in Ms. Senterfitt’s office; (11) Ms. Senterfitt
told Mr. Griffin to deny he had a deal with the State if defense counsel
asked him because admitting the deal would harm the State’s case;
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(12) Mr. Griffin’s trial testimony that he did not have a deal was false
because he did have a deal with the State whereby he was going to get
little or no jail time and probably just probation; and (13) Mr. Griffin
entered a plea and was sentenced to community control and probation.
At the evidentiary hearing, Mr. Griffin testified the affidavit
was accurate. Additionally, he testified that he violated his probation
“two or three times” and is currently serving a twenty-year sentence in
state prison. Mr. Griffin stated that neither Ms. Senterfitt nor Mr. Guy
helped him on his last violation and that they should have helped him.
Mr. Griffin also revealed that the prosecutor “John Guy” brought him
the Chinese food, that he did not pay for the food, and that he ate the
food alone in Ms. Senterfitt’s office. Mr. Griffin testified Mr. John
Guy, the same state attorney who prosecuted Defendant and who was
cross examining Mr. Griffin at the evidentiary hearing, was not the
John Guy who brought him the Chinese Food. According to Mr.
Griffin, having the Chinese food did not affect his trial testimony.
Finally, Mr. Griffin testified that he “didn’t lie at all” at trial about
Defendant murdering Ms. Wilkes and Jay-Quan or about Defendant
disposing of the bodies.
Judge Senterfitt[5] testified at the evidentiary hearing that at the
time of trial Mr. Griffin had maintained his not guilty plea. She
reported meeting with Mr. Griffin approximately five times prior to
trial to discuss his testimony, including his prior inconsistent
statements to the police as she would normally do with witnesses.
Judge Senterfitt stated that an investigator and/or Mr. Guy would be
present at these meetings.
Judge Senterfitt explained that there was no need to tell Mr.
Griffin that the State would charge him with a higher crime than
accessory after the fact if he failed to cooperate, because Mr. Griffin
“was always completely cooperative,” and she “certainly wouldn’t
have threatened him.” According to Judge Senterfitt, she would not
have put Mr. Griffin on the stand if she “thought maybe he wasn’t
really being honest” and that the whole point was that she was
convinced he was telling the truth.
5. Ms. Senterfitt became “Judge” Senterfitt after serving as the prosecutor in
Mosley’s case.
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I told him to tell the truth. Bernard, I can’t—I don’t
know what you’re going to get. I can’t tell you what
you’re going to get. I just—you need to keep doing what
I think—you know, what you’ve been doing and that is
telling the truth.
Judge Senterfitt testified that she did not tell Mr. Griffin what
sentence he would receive because to do so would defeat the whole
purpose of using him as a witness as it would cause Mr. Griffin to lose
credibility with the jury, but that she and Mr. Griffin’s attorney would
have told Mr. Griffin his sentencing range—anywhere between
probation and thirty years. Judge Senterfitt said that she did not think
anyone else would tell Mr. Griffin he could receive more time if he
did not cooperate. Judge Senterfitt agreed that she and Mr. Guy were
responsible for the prosecution of the case and that “nobody in the
State Attorney’s Office would have made—had the authority to make
any sort of proposals to Mr. Griffin if that had happened[.]”
Judge Senterfitt testified that although she did not remember the
details of Mr. Griffin’s telephone call with his grandmother, she must
have asked Mr. Griffin about it. She also admitted that it sounded
vaguely familiar that Mr. Griffin was given Chinese food and that
“[i]t’s very possible that if we had him a little late in my office that we
would—knowing that he was going to miss dinner over at the jail that
we would have said, you know, Bernard, we can get you something to
eat . . . .” Judge Senterfitt testified that she would have prepared Mr.
Griffin to answer truthfully when he was asked on the stand if he had
a deal with or promise from the State because she had not promised
him anything, and he did not have a deal with the State.
Judge Senterfitt, relying on Mr. Griffin’s plea form,
acknowledged that Mr. Griffin was sentenced to two years of
community control, followed by approximately eight years of
probation. According to Judge Senterfitt, when she recommended a
sentence for Mr. Griffin, she considered: Mr. Griffin’s cooperation
with the police and State, Mr. Griffin’s age, Mr. Griffin’s role in the
murders of Ms. Wilkes and Jay-Quan, and Mr. Griffin’s prior record.
Because she did not know what Mr. Griffin’s cooperation at trial
would ultimately be, she would not be able to make a sentencing
recommendation before trial.
After listening to the testimony of the witnesses, the Court finds
that Judge Senterfitt’s testimony is both more credible and more
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persuasive than Defendant’s allegations and Mr. Griffin’s testimony.
See Griffin v. State, 114 So. 3d 890, 905 (Fla. 2013); Sochor v. State,
883 So. 2d 766, 785 (Fla. 2004); Kight v. Dugger, 574 So. 2d 1066,
1073 (Fla. 1990).
Neither Ms. Senterfitt nor anyone else on behalf of the State
Attorney’s Office told Mr. Griffin he would be charged with first
degree murder if he did not cooperate; the State reasonably discussed
Mr. Griffin’s trial testimony and reviewed his prior inconsistent
statements to the police; Ms. Senterfitt did not assure Mr. Griffin that
if he cooperated by testifying against Defendant at trial, he would
receive little jail time and/or probation; Mr. Griffin did not have a deal
with the State when he called his grandmother from the jail and,
therefore, Mr. Griffin told the truth at trial; whether the State gave Mr.
Griffin Chinese food is immaterial and not evidence of lenient
treatment; and Ms. Senterfitt did not tell Mr. Griffin to lie at trial to
deny he had a plea deal with the State—she told Mr. Griffin to be
honest because Mr. Griffin did not have a plea deal with the State at
the time of trial. Even though the State prepared Mr. Griffin for trial,
which Mr. Griffin denied at trial, this preparation is routine practice
for attorneys. There is not a reasonable probability that had the jury
known this it would change the outcome of the proceedings.
Defendant is unable to establish Mr. Griffin’s trial testimony,
denying favorable treatment from the State, was false. The State did
not have a plea deal with Mr. Griffin before he testified at
Defendant’s trial; consequently, the State did not have exculpatory
evidence for the defense that would impeach Mr. Griffin’s testimony
or damage Mr. Griffin’s credibility with the jury. Defendant does not
satisfy the first prong of Brady and the Court need not address the
other prongs. Defendant is not entitled to relief . . . .
(Footnote omitted.) Likewise, the postconviction court relied on these findings to
deny Mosley’s Giglio claim:
The Court found, supra, that Defendant’s testimony at trial was
not false. Defendant is, therefore, unable to establish the first prong
of the Giglio analysis. Consequently, there is no need for the Court to
address the other two prongs. Defendant is not entitled to relief in
[this claim].
- 15 -
Likewise, in denying the newly discovered claim, the postconviction court found:
As the Court determined in resolving [the Brady claim], supra,
Judge Senterfitt’s testimony at the evidentiary hearing that Mr. Griffin
did not have a plea deal with the State when he testified at
Defendant’s trial is more credible and persuasive than Mr. Griffin’s
testimony at the evidentiary hearing and assertions in his Affidavit
that he did have a plea deal prior to testifying at Defendant’s trial.
Consequently, Mr. Griffin’s testimony at Defendant’s trial that he did
not have a plea deal with the State was accurate. Defendant is not
entitled to relief . . . .
This Court reviews the trial court’s findings of fact and determinations as to
the credibility of witnesses and the weight of the evidence for competent,
substantial evidence. Porter v. State, 788 So. 2d 917, 923 (2001). Brady claims
present mixed questions of law and fact. Where the postconviction court has
conducted an evidentiary hearing, this Court will defer to the factual findings of
the postconviction court so long as those findings are “supported by competent,
substantial evidence, but will review the application of the law to the facts de
novo.” Mungin v. State, 141 So. 3d 138, 142 (Fla. 2013). As we have explained,
this Court is highly deferential to the postconviction court and “will not substitute
its judgment for that of the trial court on . . . the credibility of the witnesses and the
weight to be given to the evidence.” Wyatt v. State, 71 So. 3d 86, 105 (Fla. 2011)
(quoting Cherry v. State, 959 So. 2d 702, 709 (Fla. 2007)). This is because the
postconviction judge, who is present at the hearing, “has a superior vantage point
to see and hear the witnesses presenting the conflicting testimony.” Id. (quoting
- 16 -
State v. Spaziano, 692 So. 2d 174, 178 (Fla. 1997)). This case involves the
testimony of a recanting witness, which this Court has observed is, “as a general
matter, ‘exceedingly unreliable.’ ” Spann v. State, 91 So. 3d 812, 816 (Fla. 2012)
(quoting Bell v. State, 90 So. 2d 704, 705 (Fla. 1956)).
Upon a full review of the record, the postconviction court’s order, and the
parties’ arguments, we deny this claim because competent, substantial evidence
supports the postconviction court’s findings. In attempting to establish this claim,
Mosley relied primarily on the testimony of Griffin—a witness who the
postconviction court determined was not credible. Not only did Griffin’s
testimony lack a significant amount of detail concerning any alleged plea or
understanding between himself and the prosecutor, but it also lacked any
corroboration from other witnesses. For example, although Griffin also stated that
his defense attorney, John Whited, “[p]retty much” knew about this deal prior to
Mosley’s trial, when asked specific questions about what occurred and who was
there, Griffin was unable to answer, stating, “I can’t remember. It was so long
ago.” Further, because Mosley’s trial attorney, Richard Kuritz, was personal
friends with Griffin’s attorney, Whited, Kuritz called Whited before Mosley’s trial
to inquire whether Griffin had been given any plea or whether promises were
made. Whited indicated that no promises were made.
- 17 -
Not only was Griffin’s new testimony lacking in supporting evidence, but
Griffin’s own testimony was internally inconsistent in numerous instances. Griffin
often contradicted his own testimony or statements made previously in his
affidavit. In contrast, the State presented Mosley’s former prosecutor, Elizabeth
Senterfitt, who is now a circuit court judge. Judge Senterfitt explicitly denied that
an undisclosed plea deal existed or that the State provided any favorable treatment.
Determining the merits of this claim involved weighing conflicting
testimony, primarily between that of Griffin and Judge Senterfitt. All of Mosley’s
claims rest on the foundation that there was some promise of leniency in exchange
for Griffin’s testimony—a claim that the postconviction court found to be not
credible. The postconviction court made explicit findings that Judge Senterfitt did
not assure Griffin that if he testified against Mosley, Griffin would receive little
jail time; that Griffin did not have a deal with the State and therefore told the truth
at trial; and whether the State gave Griffin dinner at dinner time was not evidence
of lenient treatment. These findings are supported by competent, substantial
evidence. While Griffin provided little detail regarding the most relevant parts of
his testimony and often contradicted himself, Judge Senterfitt’s testimony was
clear. This Court is highly deferential to the postconviction court’s factual findings
and “will not substitute its judgment for that of the trial court on . . . the credibility
- 18 -
of the witnesses and the weight to be given to the evidence.” Wyatt, 71 So. 3d at
105 (quoting Cherry, 959 So. 2d at 709).
Mosley is not entitled to relief on these three claims.
B. Ineffective Assistance of Trial Counsel
In his other postconviction claim, Mosley contends that trial counsel
rendered ineffective assistance based on three alleged failures. First, Mosley
contends that trial counsel was deficient for failing to strike a juror—a claim that
the postconviction court summarily denied. Second, Mosley alleges that trial
counsel was deficient for failing to request a jury instruction on the alibi defense.
Third, he asserts trial counsel was deficient in failing to object to various improper
comments made by the prosecutor. We address each claim in turn.
Generally, as this Court has explained, to prevail on a claim that counsel was
ineffective, the defendant must demonstrate:
both that trial counsel’s performance was deficient and that the
deficient performance prejudiced the defendant so as to deprive him
of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984). As to
the first prong, the defendant must establish that “counsel made errors
so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687. For
the second prong, “Strickland places the burden on the defendant, not
the State, to show a ‘reasonable probability’ that the result would have
been different.” Wong v. Belmontes, 558 U.S. 15 (2009) (quoting
Strickland, 466 U.S. at 694). Strickland does not “require a defendant
to show ‘that counsel’s deficient conduct more likely than not altered
the outcome’ of his penalty proceeding, but rather that he establish ‘a
probability sufficient to undermine confidence in [that] outcome.’ ”
Porter v. McCollum, 558 U.S. 30, 130 S. Ct. 447, 455-56 (2009)
- 19 -
(quoting Strickland, 466 U.S. at 693-94). This Court employs a
mixed standard of review, deferring to the postconviction court’s
factual findings that are supported by competent, substantial evidence,
but reviewing legal conclusions de novo. See Sochor v. State, 883 So.
2d 766, 771-72 (Fla. 2004).
Smith v. State, 126 So. 3d 1038, 1042-43 (Fla. 2013).
1. Failure to Strike a Juror
In Carratelli v. State, 961 So. 2d 312, 320 (Fla. 2007), this Court discussed,
in-depth, how the Strickland standard applies to the claim that trial counsel was
ineffective in failing to move to strike a juror and contrasted the standard applied
during postconviction proceedings with the standard that applies to a similar claim
raised on direct appeal:
[T]he standard for obtaining a reversal upon the erroneous denial of a
cause challenge is relatively lenient: a defendant need only show that
an objectionable juror—whether or not actually biased—sat on the
jury. Our consideration of postconviction claims, however, is more
restrictive. As we recently reiterated:
We have emphasized that “once a conviction has been
affirmed on direct appeal ‘a presumption of finality and
legality attaches to the conviction and sentence.’ ” . . .
“[T]he test for prejudicial error in conjunction with a
direct appeal is very different from the test for prejudice
in conjunction with a collateral claim of ineffective
assistance.”
Sanders [v. State], 946 So. 2d [953, 959 (Fla. 2006)] (citations
omitted) (quoting Goodwin v. State, 751 So. 2d 537, 546 (Fla. 1999),
and Sanders [v. State,] 847 So. 2d [594, 506 (Fla. 1st DCA 2003)]). A
defendant’s claim that his counsel offered ineffective assistance at
trial, for whatever reason, must be analyzed under the standard the
Supreme Court enunciated in Strickland. The purpose of the right to
the effective assistance of counsel is to “ensure a fair trial,”
Strickland, 466 U.S. at 686, defined as “one in which evidence subject
- 20 -
to adversarial testing is presented to an impartial tribunal for
resolution of issues defined in advance of the proceeding.” Id. at 685.
....
Specifically, the Court stressed that “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. Therefore, “an
error that may justify reversal on direct appeal will not necessarily
support a collateral attack on a final judgment.” Witt v. State, 387 So.
2d 922, 925 (Fla. 1980) (quoting United States v. Addonizio, 442 U.S.
178, 184 (1979)).
Carratelli, 961 So. 2d at 320. In order to establish that the defendant suffered
prejudice based on counsel’s failure to strike a juror during voir dire, the defendant
must demonstrate that an actually biased juror served on the jury. Id. at 323.
When this Court previously applied that standard to the facts in Carratelli,
this Court held that the defendant failed to prove prejudice—that an actually biased
juror served on the jury—even though the defendant did show that one of the
jurors read a prior news article about the crime and was exposed to a prior
conversation where numerous people had opined to him that the defendant was
guilty. While the juror in question acknowledged that it might be more difficult for
the defendant to convince the juror of his innocence based on the juror’s prior
exposure, the juror still stated, “If I come in here as a juror, I will sit down with an
open slate and listen to what is said and make up my mind from there.” Id. at 327.
As this Court concluded, “The record plainly shows that [the juror] held no firm
opinion except that he could be fair, listen to the evidence, and follow the law.” Id.- 21 -
This Court has reviewed similar claims involving ineffective assistance of
trial counsel pertaining to the failure to challenge a juror for cause and has
generally held that in order to amount to actual bias, the juror must indicate
something more than mere doubt about that juror’s impartiality. See, e.g.,
Guardado v. State, 176 So. 3d 886 (Fla. 2015) (holding that the record did not
show a juror had actual bias even though the juror stated that he was “strongly” in
favor of the death penalty, knew three of the police officers who worked on the
case, and had family members who knew the victim personally); Johnston v. State,
63 So. 3d 730, 745 (Fla. 2011) (holding that the record did not show a juror had
actual bias when the juror stated that he had been exposed to pretrial publicity
about the crime and then declined to respond to specific discussion on bias during
voir dire); Owen v. State, 986 So. 2d 534, 550 (Fla. 2008) (holding that there was
no evidence of actual bias in the record where a juror stated that she “[p]robably”
would vote for the death penalty in the circumstance of multiple victims but
ultimately stated that mitigating evidence such as testimony about the defendant’s
mental health could influence her to recommend a life sentence).
Applying that standard, during the voir dire in this case, when the State
inquired whether any juror was concerned about whether he or she would be so
bothered by photographs of the deceased victim’s burned and decomposed body
that he or she could not be fair or impartial, Juror R answered that she was not sure
- 22 -
how she would respond and that she did not know, although she thought she would
try. Specifically, in response to a compound question, asking the jurors both as to
who would be bothered or disturbed by reviewing photographs of the victim’s
burned, decomposed body and who would feel that such pictures would cause them
to not be fair and partial, Juror R responded, stating, “I’m not sure how I would
respond. I think the timing of when we see them might determine how I might
feel. I just don’t know.” When the State explained that this was a part of the case
and questioned whether she could be fair and impartial in the case, Juror R then
replied, “I think I would try but I don’t know what I would take home with me at
night and sleep with. I don’t know.”
We deny this claim because Mosley has failed to show actual bias on the
face of the record. As this Court explicitly held in Johnston, in order to prevail on
a challenge pertaining to whether trial counsel was ineffective in failing to object
to certain jurors serving on the jury, the defendant must demonstrate actual bias,
which is “more than mere doubt about the juror’s impartiality.” 63 So. 3d at 745.
Based on the full context of Juror R’s statement, Juror R was replying to whether
those types of pictures would bother her or affect her ability to sit as a juror in the
case—she did not clearly indicate that she would have a bias or prejudice against a
particular party or determine Mosley’s guilt or innocence based on gruesome
pictures.
- 23 -
Even if her statements were considered to be a discussion as to whether she
could be fair, Juror R’s statements merely express doubt, which this Court has held
does not establish actual bias against the defendant. As this Court has
acknowledged, the standard for establishing prejudice during postconviction claims
must be more restrictive in order to recognize “the fundamental differences
between review on appeal and review on postconviction.” Thompson v. State, 990
So. 2d 482, 489 (Fla. 2008). We stressed in Carratelli that holding otherwise
would mean that “[a] defendant asserting ineffective assistance for failing to
preserve a cause challenge would have no greater burden than a defendant
asserting preserved error on appeal,” a result that would lead to the elimination of
the contemporaneous objection requirement and permit counsel to save certain
arguments for appeal. 961 So. 2d at 325. We thus deny this claim.
2. Failure to Request a Jury Instruction on the Alibi Defense
In his second claim of trial counsel deficiency, Mosley alleges that trial
counsel was deficient in failing to request a jury instruction pertaining to an alibi
defense. Specifically, at his trial, the State presented evidence that Mosley himself
admitted to meeting the victims at J.C. Penney during the time frame within which
the police later determined the murders occurred. Mosley presented evidence to
challenge his involvement in the murder, and his counsel’s theory of defense was
that Griffin had killed the victims and blamed Mosley for the crime. Defense
- 24 -
counsel stressed that there was no physical evidence to show that Mosley was
present at the scene of the crime and demonstrated the small window of time that
Mosley was even available to be able to commit the offenses.
At the postconviction evidentiary hearing, Mosley’s lead trial counsel
testified, asserting that he researched the case thoroughly and generated a case file
of fourteen boxes. Defense counsel explicitly stated that he never believed that
this was an alibi case and he was concerned about his credibility with the jury if he
attempted to rely on such a defense based on the available evidence. Instead, his
defense strategy was to chip away at the State’s case, demonstrate its lack of direct
evidence against Mosley, and stress that Griffin committed the murder. The
postconviction court denied the claim as follows:
Evidence from cell phone records showed the murders occurred
between 12:33 p.m. and 1:21 p.m. JSO Detective Dennis Fuentes
interviewed Defendant after Defendant became a suspect in the
disappearance of Ms. Wilkes and Jay-Quan. At trial, Detective
Fuentes testified that Defendant told the detective he saw Ms. Wilkes
and Jay-Quan between 12:30 p.m. and 1:00 p.m. on the day of the
murders. Defendant also told the detective that during this time Ms.
Wilkes showed Defendant a house she was thinking about renting and
afterwards they returned to the J.C. Penney parking lot where Ms.
Wilkes performed oral sex on Defendant.
JSO Sergeant Hugh Eason also interviewed Defendant during
the investigation into Ms. Wilkes’s and Jay-Quan’s disappearances.
According to Sergeant Eason, Defendant said he called Ms. Wilkes
from Quality Tire before meeting her at “around 12:45, 1:00 . . .” and
that he never said anything about going back to Quality Tire after
leaving Ms. Wilkes and Jay-Quan. At trial Jimmy Holton, the
manager of Quality Tire, testified that he was merely guessing that
Defendant was in his shop at 1:00 p.m. on the day of the murders and
- 25 -
that he could not say exactly what time Defendant was there that day.
Jim Jeanette, the plumber who worked on Defendant’s broken toilet,
testified that he arrived at Defendant’s home at 3:00 p.m. on the day
of the murders. Defendant’s daughter, Amber Mosley, testified that
she saw Defendant at home “[s]ometime around 1:00” the day of the
murders. Finally, Defendant’s wife, Carolyn Mosley, testified that
she was uncertain where Defendant was between 12:00 noon and 1:00
p.m. on the day of the murders.
Mr. Kuritz testified at the evidentiary hearing that he “never
thought of this as an alibi case.” According to Mr. Kuritz, he could
not show Defendant was in a particular place at a specific time.
Because he believed he did not have enough evidence for an alibi,
counsel tried to “chip away at the state’s case and show that their [sic]
story wasn’t credible.” Mr. Kuritz explained that his theory and
strategy were to argue that Mr. Griffin committed the murders “either
by himself or with a friend of his and that Mr. Mosley was not
involved.”
Mr. Kuritz believed that had he requested an alibi instruction he
would have lost credibility with the jury and that “the state could have
really twisted it on me . . . because as I sit here still I don’t think we
had an alibi to speak.” Finally, Mr. Kuritz testified that when he did
not have sufficient evidence to sustain an alibi instruction, he relied on
the jury finding “plenty of reasonable doubt as to all of this.”
At the evidentiary hearing, Quentin Till, co-counsel at
Defendant’s trial, testified that he focused on the penalty phase. He
further testified that he was unsure whether he actually sat down with
Mr. Kuritz to discuss the defense’s theory for the guilt phase. Mr. Till
explained he was very confident with Mr. Kuritz’s capabilities to
represent somebody. According to Mr. Till, the defense could have
put on an alibi defense, but he was unsure whether it would be
effective. He further stated that he did not have an answer to whether
there was harm in asking for an alibi instruction.
Defendant argues that Mr. Kuritz’s reasons for not requesting
an alibi instruction is unconvincing because counsel “used the word
‘alibi’ in describing Mosley’s defense to the jury.” In his opening
statement, Mr. Kuritz made these references to an alibi: “[The
plumber is] not going to say Defendant was trying to set up an alibi”;
“Nobody is crunching for alibis”; “Not us making up an alibi”; and
“That’s his alibi?”
- 26 -
Mr. Kuritz’s strategic decision not to request an alibi instruction
was clearly within “the broad range of reasonably competent
performance” contemplated by Strickland. Although Mr.
Kuritz used the word “alibi” during his opening statement, he never
directly referred to a specific alibi defense. Counsel considered
whether to pursue an alibi defense and reasonably rejected doing so
after reviewing the undisputed facts and concluding that Defendant
did not have a sufficient alibi.
We affirm the postconviction court’s determination that this was a
reasonable strategic decision. As this Court has held, “[S]trategic decisions do not
constitute ineffective assistance of counsel if alternative courses have been
considered and rejected and counsel’s decision was reasonable under the norms of
professional conduct.” Peterson v. State, 154 So. 3d 275, 280 (Fla. 2014) (quoting
Burns v. State, 944 So. 2d 234, 239 (Fla. 2006)). Even if “arguably trial counsel’s
strategy may have ultimately been unsuccessful, [the defendant] cannot now
properly challenge an informed, strategic decision of counsel in the hindsight of
postconviction.” Dufour v. State, 905 So. 2d 42, 62 (Fla. 2005). “The defendant
bears the burden to ‘overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.’ ” McCoy v. State, 113
So. 3d 701, 707 (Fla. 2013) (quoting Strickland, 466 U.S. at 689).
Mosley now asserts that counsel should have requested this jury instruction
even if the evidence was weak, emphasizing that trial counsel presented witnesses
who testified that Mosley could have been in a different place during the murder or
when the bodies were disposed of and thus he must have been presenting an alibi
- 27 -
defense. As trial counsel testified during the postconviction evidentiary hearing,
however, Kuritz never considered the case as one involving an alibi. His stance on
this was clear to the jury from the opening argument—he repeatedly emphasized
that he was “not going to say Mr. Mosley was trying to set up an alibi” and they
are not “making up an alibi.”
A review of the trial record very clearly demonstrates why choosing not to
use an alibi defense was a reasonable strategic decision. By Mosley’s own
admissions to numerous people, he could have been present at the very time that
the murders occurred. Mosley initially asked the victim to meet him in the J.C.
Penney parking lot so he could allegedly buy their son clothing. Wilkes notified
others of her plan to meet Mosley at J.C. Penney, and her car was found abandoned
in the parking lot where she met Mosley. When the police confronted Mosley
about this, he acknowledged that he met Wilkes and their son there and was with
her during the relevant time period. Thus, while trial counsel did call various
witnesses who would have placed Mosley at home around 1 p.m., if trial counsel
focused on using this as a defense, the State would have emphasized that even
Mosley himself initially admitted that he was with Wilkes during the time that the
police were later able to establish the murders occurred—between 12:57 and 1:21
p.m.
- 28 -
Further, after Mosley was arrested, he contacted numerous people in an
attempt to create an alibi. He called his family from jail, explaining what
statements he wanted them to provide to the police. Mosley also reached out to
one of his other mistresses by letter, encouraging specific testimony that she should
recall pertaining to when they saw each other on April 23—the time period when
Mosley returned from disposing of the bodies. If trial counsel had attempted to
pursue this case as one involving an alibi, the prosecutor had significant evidence
to suggest that Mosley was attempting to fabricate an alibi. Instead, trial counsel
attempted to downplay this evidence, stressing that Mosley was not trying to create
an alibi and that he was just worried that his family and friends would be pressured
into lying about important details. Trial counsel focused on how the only evidence
that tied Mosley to the murder came from Griffin, who was also being charged
with crimes concerning the murder, and that Griffin was trying to blame Mosley
for murders that Griffin himself committed.
We deny this claim.
3. Failure to Object to Improper Comments
In his final claim, Mosley contends that trial counsel rendered deficient
performance in failing to object to certain statements made by the prosecutor and
State witnesses, focusing on four main areas: (1) trial counsel failed to object to
improper bolstering of Griffin and the police; (2) the prosecutor denigrated Mosley
- 29 -
and his defense; (3) during the penalty phase, the prosecutor relied on prosecutorial
expertise in seeking the death penalty; and (4) the prosecutor implied to the jury
that a life recommendation is the “easy way out.”6
As an initial matter, during the postconviction hearing, trial counsel Richard
Kuritz testified that, as a strategic choice, he was generally more conservative in
how many objections he raised, objecting only where it was clear that the
statement was improper and where his objection would be helpful to the defense.
The postconviction court relied on this testimony, summarizing Kuritz’s testimony
as follows:
Mr. Kuritz testified that his use of objections is strategic. He testified
that forming his strategy is a two-part process: Can I object? Should
I object? Mr. Kuritz explained that if he objects too much, he might
“get the ire of the court,” and he might lose credibility with the jury.
He further explained that an objection may draw the jury’s attention to
particular testimony that is damaging to his client and by not
objecting, he does not give the jury a reason to pay attention to the
damaging testimony. According to Mr. Kuritz, “the jury can’t unhear
something or unring the bell.” Finally, Mr. Kuritz considers whether
to use the prosecutor’s statement to his benefit: “I like it when an
opposing party says something that I can use to my benefit and
oftentimes it’s when they say something ludicrous, improper or
pushing the envelope that I can twist on that.”
6. In light of granting Mosley relief with respect to relief on his claim under
Hurst v. Florida, 136 S. Ct. 616 (2016), and remanding his case for a new penalty
phase, we do not address Mosley’s claims (3) and (4), which relate to his
attorney’s failure to object to statements made during the penalty phase of his trial.
- 30 -
Mosley first contends that his attorney was deficient in failing to object to
various statements from the State that allegedly constituted improper bolstering
and from State witnesses regarding Griffin’s credibility and the investigation in the
case. This Court has defined improper bolstering as “when the State ‘places the
prestige of the government behind the witness or indicates that information not
presented to the jury supports the witness’s testimony.’ ” Jackson v. State, 147 So.
3d 469, 486 (Fla. 2014) (quoting Wade v. State, 41 So. 3d 857, 869 (Fla. 2010)).
After reviewing each of these arguments, we conclude that these comments, when
viewed in context, are not comments placing the prestige of the government behind
Griffin’s testimony or relying on anything outside of the record to support law
enforcement’s testimony. Further, even if these comments could constitute
improper bolstering, trial counsel was not deficient in failing to object to the
comments, but in fact used some of the statements to Mosley’s advantage by
suggesting that the law enforcement officers had clouded judgment pertaining to
Griffin.
Second, Mosley contends that trial counsel was deficient in failing to object
to numerous statements in closing arguments wherein the prosecutor argued that
Mosley had lied to various people, alleging that such statements denigrated the
defendant. This Court has held that while a prosecutor may “not ridicule or
otherwise improperly attack the defense’s theory of the case,” the prosecutor is
- 31 -
permitted to suggest to the jurors that “based on the evidence of the case, they
should question the plausibility of the defense’s theory.” Davis v. State, 136 So.
3d 1169, 1203 (Fla. 2014) (quoting Valentine v. State, 98 So. 3d 44, 55-56 (Fla.
2012)). Accordingly, this Court has previously “determined that the prosecutor’s
description of the defendant’s testimony as ‘untruthful[ ]’ or of the defendant as a
‘liar’ was proper argument based on the evidence of the case.” Id. at 1204 (quoting
Craig v. State, 510 So. 2d 857, 865 (Fla. 1987)); see also Davis v. State, 698 So.
2d 1182, 1190 (Fla. 1997) (concluding that prosecutor’s reference to defendant’s
statements as “bald-faced lies” was not improper). Here, the statements at issue do
not rise to the level of denigrating the defense or the defendant.
For the reasons explained above, we hold that trial counsel did not render
ineffective assistance of counsel in failing to object to the arguments and
statements made by the prosecution and its witnesses.
C. Cumulative Error
In his final postconviction claim, Mosley asserts that the cumulative effect
of the guilt phase and penalty phase errors renders his convictions and death
sentence fundamentally unfair. We reject this claim without further discussion
because we have rejected all of the individual guilt phase claims of error both as to
ineffective assistance of trial counsel and the claims of relief under Giglio, Brady,
and newly discovered evidence, and do not consider Mosley’s penalty phase
- 32 -
claims in light of granting relief under Hurst v. State (Hurst), 202 So. 3d 40 (Fla.
2016).
II. Habeas Corpus Petition
In his habeas petition, Mosley raises one additional claim—that although his
appellate counsel presented thirteen different issues on direct appeal,7 counsel was
ineffective in failing to assert that the trial court committed a fundamental error
when it failed to hold a Faretta8 hearing after Mosley clearly and unequivocally
requested to represent himself pro se.
In order to be entitled to relief, Mosley must show: (1) “appellate counsel’s
performance was deficient because ‘the alleged omissions are of such magnitude as
to constitute a serious error or substantial deficiency falling measurably outside the
range of professionally acceptable performance’ ”; and (2) “the petitioner was
prejudiced because appellate counsel’s deficiency ‘compromised the appellate
process to such a degree as to undermine confidence in the correctness of the
result.’ ” Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000) (quoting
Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000)). Generally, this Court will
not find appellate counsel’s performance ineffective for failing to raise an issue
7. See supra note 3 (citing Mosley, 46 So. 3d at 518 n.7) (listing Mosley’s
thirteen direct appeal claims).
8. Faretta v. California, 422 U.S. 806 (1975).
- 33 -
that would have been found to be procedurally barred if it had been raised on direct
appeal or for failing to raise a legal issue that “would in all probability have been
found to be without merit” had counsel raised the issue on direct appeal. Id.(quoting Williamson v. Dugger, 651 So. 2d 8, 86 (Fla. 1994)). Moreover, based on
the limitations of appellate litigation, this Court has held that “appellate counsel is
not necessarily ineffective for failing to raise a claim that might have had some
possibility of success; effective appellate counsel need not raise every conceivable
nonfrivolous issue.” Farina v. State, 937 So. 2d 612, 634 (Fla. 2006) (quoting
Valle v. Moore, 837 So. 2d 905, 908 (Fla. 2002)). Instead, counsel will not be
considered ineffective simply because he or she limited the appellate arguments to
those that were the strongest. Id.In this case, although Mosley was represented by counsel during the trial
proceedings, he often filed pro se filings, including a number of pro se motions that
expressed his dissatisfaction with any delays in his case. On December 15, 2004,
the trial judge, the Honorable Michael Weatherby, held a hearing on one of
Mosley’s pro se demands for a speedy trial. The State asserted that Mosley did not
have the authority to file such a pleading since he was represented by counsel. At
this hearing, the trial court questioned Mosley to ensure that Mosley understood
the fact that his attorney was not ready for trial, to which Mosley repeatedly
stressed that he was innocent, was unhappy with the fact that he had been in jail for
- 34 -
eight months without a trial, and was ready to go to trial so he could return home to
his family. The judge granted the State’s motion to strike Mosley’s pro se demand.
At that point, Mosley stated that he wanted to petition the Court to “go pro se.”
Based on this statement, however, it was unclear whether Mosley was seeking to
represent himself pro se immediately, or if he was merely informing the court that
he would be filing a petition for pro se representation in the future. The trial court
replied that it would consider Mosley’s motion when he filed it and then set the
next pretrial hearing.
Shortly after this statement, Mosley filed a pro se Motion for Additional
Counsel, requesting the opportunity to participate as cocounsel alongside the
attorneys at the Office of the Public Defender. He concluded his motion with, “I
am the added counsel requested.” New counsel was later appointed, and Mosley
never complained about his counsel’s performance or mentioned that he wanted to
represent himself. Although Mosley filed numerous pro se motions throughout the
trial proceedings, he did not file any motion to represent himself and did not orally
seek to represent himself pro se.
As this Court has held, “[u]nder the United States Supreme Court’s ruling in
Faretta, an accused has the right to self-representation at trial. A defendant’s
choice to invoke this right “ ‘must be honored out of that respect for the individual
which is the lifeblood of the law.’ ” Tennis v. State, 997 So. 2d 375, 377-78 (Fla.
- 35 -
2008) (quoting Faretta, 422 U.S. at 834). Before the trial court is mandated to hold
a Faretta hearing, “the defendant’s request for self-representation must be
unequivocal.” Id. at 378; see State v. Craft, 685 So. 2d 1292, 1295 (Fla. 1996)
(“[O]nly an unequivocal assertion of the right to self-representation will trigger the
need for a Faretta inquiry.”). However, if a defendant unequivocally states that he
chooses to represent himself instead of having counsel represent him and the trial
court denies the defendant this right, such an error requires reversal. Pasha v.
State, 39 So. 3d 1259, 1262 (Fla. 2010).
When this Court has previously determined that a defendant made an
unequivocal statement choosing self-representation instead of being represented by
an appointed attorney, the request was made more clearly than Mosley’s request in
this case. Further, this Court has previously considered the entire scope of the
defendant’s request, instead of focusing on one isolated statement. For example, in
Tennis, the defendant informed the trial judge, “I refuse to go to trial with him. I
would like to go pro se instead of having two prosecutors against me, I’ll do it
myself. Even though I don’t know what I’m doing, I will have a better fighting
chance.” 997 So. 2d at 378. The defendant then filed two separate pro se motions
requesting self-representation. This Court concluded that “Tennis’s statement at
the hearing coupled with his pro se motions was an unequivocal and clear request
for self-representation.” Id. (emphasis added). Likewise, in Pasha, the defendant
- 36 -
stated that while he preferred to have an attorney, so long as it was not his current
attorney, his appointed attorney was so ineffective that he would choose to
represent himself if the trial judge did not appoint a different attorney. 39 So. 3d at
1262. This Court held that such a statement was a clear, unequivocal request for
self-representation, and thus the trial court committed reversible error by not
permitting the defendant to represent himself. Id.; see also Raulerson v.
Wainwright, 732 F.2d 803, 808-09 (11th Cir. 1984) (holding that the defendant’s
initial communications, which vacillated between seeking pro se status or being
appointed as cocounsel, did not constitute an “unequivocal” assertion of his right to
relinquish counsel).
In looking to the full record before us, we conclude that Mosley’s brief
statement about a future intent to proceed pro se was not an unequivocal request
for self-representation. Here, the trial court was in the process of determining
whether Mosley could file a pro se demand for speedy trial demand when he was
already represented by counsel. Mosley did not mention that he wanted to
discharge his counsel. The judge further informed him that he would consider this
request, and in an apparent response, Mosley filed a motion requesting to proceed
as cocounsel alongside his current counsel. Most importantly, after this filing,
Mosley did not request or mention that he sought to represent himself pro se.
- 37 -
Because the request was not an unequivocal request to represent himself pro
se, appellate counsel was not deficient in failing to raise such a claim because it
would have been found to be without merit. Therefore, we deny Mosley’s petition
for habeas corpus relief.
III. Hurst v. Florida and Hurst
While Mosley’s postconviction case and habeas petition were pending in
this Court, the United States Supreme Court issued its opinion in Hurst v. Florida.9
In Hurst v. Florida, the United States Supreme Court declared our capital
sentencing scheme, codified at section 921.141(3)(a)-(b), Florida Statutes (2015),
unconstitutional because the “[t]he Sixth Amendment requires a jury, not a judge,
to find each fact necessary to impose a sentence of death. A jury’s mere
recommendation is not enough.” 136 S. Ct. at 619.
Pursuant to the Supreme Court’s decision in Hurst v. Florida, Mosley filed a
motion requesting leave to file supplemental briefing to address the impact of
Hurst v. Florida on his case. We granted the motion, and Mosley now contends
that he is entitled to relief under Hurst v. Florida and, thus, his sentence of death
must be vacated because of the jury’s nonunanimous death recommendation.
9. Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616 (2016).
- 38 -
In Hurst v. Florida, the United States Supreme Court specifically relied, not
on new jurisprudential developments in Sixth Amendment case law, but rather, on
its 2002 opinion in Ring v. Arizona, 536 U.S. 584 (2002). The Supreme Court
determined that “[t]he analysis the Ring Court applied to Arizona’s sentencing
scheme applies equally to Florida’s” death penalty:
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) [2015]. 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, 110 S. Ct.
3047 (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.
Hurst v. Florida, 136 S. Ct. at 621-22 (emphasis supplied). Thus, in holding our
statute unconstitutional, the United States Supreme Court applied the exact
reasoning of Ring to Florida’s death penalty sentencing scheme. Id.- 39 -
On remand from the United States Supreme Court, in Hurst,10 this Court
interpreted the United States Supreme Court’s holding in Hurst v. Florida and held
“that the Supreme Court’s 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. We reach this holding based on the
mandate of Hurst v. Florida and on Florida’s constitutional right to jury trial,
considered in conjunction with our precedent concerning the requirement of jury
unanimity as to the elements of a criminal offense.” Hurst, 202 So. 3d at 44.
Reviewing Florida’s capital sentencing scheme, the Court concluded that “these
specific findings required to be made by the jury include the existence of each
aggravating factor that has been proven beyond a reasonable doubt, the finding that
the aggravating factors are sufficient, and the finding that the aggravating factors
outweigh the mitigating circumstances.” Id. Further, we held, based on Florida’s
independent constitutional right to trial by jury that, in order for the trial court to
impose a sentence of death, the jury’s recommendation for a sentence of death
must be unanimous. Id.
Further, we have now held in Asay v. State, that Hurst does not apply
retroactively to capital defendants whose sentences were final before the United
10. Hurst, 202 So. 3d 40 (Fla. 2016).
- 40 -
States Supreme Court issued its opinion in Ring. See Asay v. State, Nos. SC16-
223, SC16-102, SC16-628 (slip op. issued Fla. Dec. 22, 2016), at 35. However,
our opinion in Asay left open the question of whether Hurst applies retroactively to
postconviction defendants, like Mosley, whose sentences of death became final
after the United States Supreme Court decided Ring. Id.We now turn to the issue of whether Hurst should apply retroactively to
Mosley. We approach our retroactivity analysis based on the United States
Supreme Court’s holding in Hurst v. Florida under the United States Constitution’s
Sixth Amendment right to trial by jury and our opinion in Hurst, interpreting the
meaning of Hurst v. Florida as applied to Florida’s capital sentencing scheme and
considering Florida’s independent right to trial by jury in article I, section 22, of
the Florida Constitution. We first review our precedent holding that certain
decisions should be given retroactive effect on the basis of fundamental fairness,
such as James v. State, 615 So. 2d 668 (Fla. 1993). We then review the factors in
the Witt v. State, 387 So. 2d 922 (1980), retroactivity framework, explaining the
unique jurisprudential conundrum caused by the United States Supreme Court’s
delay in reviewing the constitutionality of Florida’s capital sentencing scheme in
light of Ring. After reviewing these considerations, we conclude that Hurst should
apply retroactively to Mosley.
- 41 -
A. Fundamental Fairness: James v. State
Mosley, whose crimes occurred in April 2004, raised his entitlement to the
application of Ring at his first opportunity at the trial level, arguing the
unconstitutionality of Florida’s death penalty in light of Ring and that he was
entitled to a unanimous jury verdict.11 Mosley’s Ring claims were consistently
rejected by the trial court judge. He then raised a Ring claim on direct appeal,
which this Court summarily rejected by stating that his remaining claims, including
a Ring claim, “are clearly without merit based on this Court’s precedent . . . and do
not require further elaboration.” Mosley, 46 So. 3d at 518; accord id. at 518 n.7.
Mosley also filed a petition for certiorari to the United States Supreme Court,
which was denied. Mosley v. Florida, 526 U.S. 887 (2010). Since the time this
Court denied Mosley’s Sixth Amendment claim under Ring, a major development
occurred in 2016, when the United States Supreme Court finally held in Hurst v.
11. In fact, Mosley’s Ring-related filings were extensive. See, e.g., State v.
Mosley, No. 16-2004-CF-6675-AXXX-MA, 2005 WL 6353490 (Fla. Cir. Ct. 4th
Cir. Nov. 29, 2005) (denying Defendant’s Motion to Declare Florida’s Death
Penalty Unconstitutional); id., 2005 WL 8132035 (Fla. Cir. Ct. 4th Cir. Aug. 25,
2005) (denying Defendant’s Motion in Limine and to Strike Portions of “Florida
Standard Jury Instructions in Criminal Cases” Re: Caldwell v. Mississippi); id.,2005 WL 8132030 (Fla. Cir. Ct. 4th Cir. Aug. 25, 2005) (denying Defendant’s
Motion to Prohibit Misleading References to the Advisory Role of the Jury at
Sentencing).
- 42 -
Florida that the “analysis the Ring Court applied to Arizona’s sentencing scheme
applies equally to Florida’s.” 136 S. Ct. at 621-22.
This Court has previously held that fundamental fairness alone may require
the retroactive application of certain decisions involving the death penalty after the
United States Supreme Court decides a case that changes our jurisprudence. For
example, in James, this Court reviewed whether the United States Supreme Court’s
decision in Espinosa v. Florida, 505 U.S. 1079 (1992), should apply retroactively.
James, 615 So. 2d at 669. Although pre-Espinosa this Court had rejected claims
that our jury instruction on the extremely heinous, atrocious or cruel (HAC)
aggravator was unconstitutionally vague, the United States Supreme Court
disagreed and held in Espinosa that our instruction was, indeed, unconstitutionally
vague. 505 U.S. 1079. This Court then held that defendants who had raised a
claim at trial or on direct appeal that the jury instruction pertaining to the HAC
aggravating factor was unconstitutionally vague were entitled to retroactive
application of Espinosa. James, 615 So. 2d at 669. While this Court did not
employ a standard retroactivity analysis in James, the basis for granting relief was
that of fundamental fairness. Id. This Court reasoned that, because James had
raised the exact claim that was validated by the United States Supreme Court in
Espinosa, “it would not be fair to deprive him of the Espinosa ruling.” Id.- 43 -
The situation presented by the United States Supreme Court’s holding in
Hurst v. Florida is not only analogous to the situation presented in James, but also
concerns a decision of greater fundamental importance than was at issue in James.
Id.12 For fourteen years after Ring, until the United States Supreme Court decided
Hurst v. Florida, Florida’s capital defendants attempted to seek relief based on
Ring, both in this Court and the United States Supreme Court. In this instance, as
in James, where Mosley repeatedly raised Ring claims that were rejected, the
interests of finality must yield to fundamental fairness. See Witt, 387 So. 2d at
925. Under Hurst v. Florida and Hurst, the fundamental right to trial by jury under
both the United States and Florida Constitutions is implicated, and Florida’s death
12. This result is further supported by this Court’s precedent, similar to
James, holding that other new rules, which had far less impact on the sanctity of a
jury’s verdict than the rule from Hurst v. Florida, should apply retroactively. See,
e.g, Thompson v. Dugger, 515 So. 2d 173, 175 (Fla. 1987) (holding retroactive
Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987), which held that instruction to
advisory jury to not consider nonstatutory mitigation, and trial judge’s refusal to
consider nonstatutory mitigation was improper); Harvard v. State, 486 So. 2d 537,
539 (Fla. 1986) (holding retroactive the United States Supreme Court’s decision in
Lockett v. Ohio, 438 U.S. 586, 608 (1978), which held that the exclusion of
nonstatutory mitigating evidence was unconstitutional); State v. White, 470 So. 2d
1377, 1379 (Fla. 1985) (holding retroactive Enmund v. Florida, 458 U.S. 782, 797
(1982), which held that the “imposition of the death penalty on one . . . who aids
and abets a felony in the course of which a murder is committed by others but who
does not himself kill, attempt to kill, or intend that a killing take place or that lethal
force will be employed,” is improper); Tafero v. State, 459 So. 2d 1034, 1035 (Fla.
1984) (determining, under Witt, that Enmund is “such a change in the law as to be
cognizable in post-conviction proceedings”).
- 44 -
penalty sentencing procedure has been held unconstitutional, thereby making “the
machinery of post-conviction relief . . . necessary to avoid individual instances of
obvious injustice.” Id. at 925.
Accordingly, because Mosley raised a Ring claim at his first opportunity and
was then rejected at every turn, we conclude that fundamental fairness requires the
retroactive application of Hurst, which defined the effect of Hurst v. Florida, to
Mosley.
B. Retroactivity of Hurst v. Florida and Hurst Under a Witt Analysis
We now turn to a retroactivity analysis under Florida’s standard from Witt,
which involves a more in-depth consideration of how to analyze when fairness
must yield to finality based on changes in the law. We conclude that under a
standard Witt analysis, Hurst should be applied to Mosley and other defendants
whose sentences became final after the United States Supreme Court issued its
opinion in Ring.13
13. The difference between a retroactivity approach under James and a
retroactivity approach under a standard Witt analysis is that under James, a
defendant or his lawyer would have had to timely raise the constitutional argument,
in this case a Sixth Amendment argument, before this Court would grant relief.
However, using a Witt analysis, any defendant who falls within the ambit of the
retroactivity period would be entitled to relief regardless of whether the defendant
or his or her lawyer had raised the Sixth Amendment argument. In this case, we
determine that Mosley would be entitled to retroactive application of Hurst under
either approach.
- 45 -
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.” Witt, 387 So. 2d at 931. Determining the retroactivity of a holding
“requir[es] that [this Court] resolve a conflict between two important goals of the
criminal justice system—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.” Id. at 924-25. Put
simply, balancing fairness versus finality is the essence of a Witt retroactivity
analysis. See id. at 925.
First, we address this Court’s opinion in Johnson v. State, 904 So. 2d 400,
409 (Fla. 2005), which held that Ring did not apply retroactively. As we stated in
our opinion in Asay:
[O]ur retroactivity analysis in Johnson hinged upon our
understanding of Ring’s application to Florida at that time. Thus, we
did not treat the aggravators 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[v. Florida, 490
U.S. 638 (1989)], 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.
Slip op. at 22.
- 46 -
We now turn to a Witt retroactivity analysis in this case. It is undisputed
that Hurst v. Florida satisfies the first two prongs of the Witt analysis because it
emanates from the United States Supreme Court and is constitutional in nature.
Likewise, our recent decision in Hurst is undoubtedly a decision of fundamental
constitutional significance because it emanates from this Court and is based on
Florida’s independent constitutional right to trial by jury under article I, section 22,
of the Florida Constitution. However, the third prong of the Witt test turns entirely
on whether the new rule, here Hurst v. Florida, is a “development of fundamental
significance.” Witt, 387 So. 2d 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 and Linkletter.” Id. at 929. We conclude that Hurst v.
Florida, as interpreted by this Court in Hurst, falls within the category of cases that
are of “sufficient magnitude to necessitate retroactive application as ascertained by
the three-fold test” from Stovall14 and Linkletter,15 which we address below. Id.
14. Stovall v. Denno, 388 U.S. 293 (1967).
15. Linkletter v. Walker, 381 U.S. 618 (1965).
- 47 -
The three-fold test of Stovall and Linkletter 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. Witt, 387 So. 2d at 926; Johnson, 904 So. 2d at
408. Importantly, the purpose of the three-part test is to determine where finality
yields to fairness based on a change in the law. There can, therefore, be no precise
mathematical formula, and the prongs should not and cannot be mechanically
applied. In fact, as this Court explained in adopting Witt, “Unfortunately, drawing
or defining the line where finality gives way to fairness based on a change of law is
no simple task.” Witt, 387 So. 2d at 934. Likewise, no prong is necessarily the
most significant factor. Instead, the prongs are intertwined and analyzed as part of
a holistic review. Determining when finality of the judgment must yield to
fundamental fairness is especially critical when addressing laws that govern the
imposition of the ultimate penalty—death.
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. The purpose of the new rule announced
in Hurst is to ensure that capital defendants’ foundational right to a trial by jury—
the only right protected in both the body of the United States Constitution and the
Bill of Rights and then, independently, in the Florida Constitution—under article I,
- 48 -
section 22, of the Florida Constitution and the Sixth Amendment to the United
States Constitution—is preserved within Florida’s capital sentencing scheme. See
Hurst, 202 So. 3d at 57.
The United States Supreme Court stated succinctly in Hurst v. Florida that
“[t]he Sixth Amendment protects a defendant’s right to an impartial jury.” 136 S.
Ct. at 624. Expounding on the importance of this constitutional right in Hurst, we
explained:
[T]he Supreme Court has made clear that individualized sentencing is
required in which the discretion of the jury and the judge in imposing
the death penalty will be narrowly channeled, and in which the
circumstances of the offense, the character and record of the
defendant, and any evidence of mitigation that may provide a basis for
a sentence less than death must be a part of the sentencing decision.
....
The Supreme Court in Hurst [v. Florida] has now [also] made
clear that the critical findings necessary for imposition of a sentence
of death are the sole province of the jury. And because these findings
occupy a position on par with elements of a greater offense, we
conclude that all these findings necessary for the imposition of a
sentence of death must be made by the jury—as are all elements—
unanimously.
Hurst, 202 So. 3d at 57 (footnotes omitted).
Separate from the Federal Constitution, we explained in Hurst that “this
Court, in interpreting the Florida Constitution and the rights afforded to persons
within this State, may require more protection be afforded criminal defendants than
that mandated by the federal Constitution.” Id. Finding that such heightened
protection was significantly appropriate in this context, we stated: “This is
- 49 -
especially true, we believe, in cases where, as here, Florida has a longstanding
history requiring unanimous jury verdicts as to the elements of a crime.” Id.
Under Florida’s independent constitutional right to a trial by jury, this Court
concluded: “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.” Id. at 60.
Thus, because Hurst v. Florida held our capital sentencing statute
unconstitutional under the Sixth Amendment to the United States Constitution, and
Hurst further emphasized the critical importance of a unanimous verdict within
Florida’s independent constitutional right to trial by jury under article I, section 22,
of the Florida Constitution, the purpose of these holdings weighs heavily in favor
of retroactive application.
2. Reliance on the Old Rule
The next factor under the Stovall/Linkletter test is the extent of reliance on
the old rule—specifically, in this case, that the rights announced in Ring did not
apply to Florida’s death penalty sentencing statute. Witt, 387 So. 2d at 926. In
Furman v. Georgia, 408 U.S. 238 (1972), the United States Supreme Court, with
nine separate opinions, found the “imposition and carrying out of the death
penalty” in certain states to be unconstitutional based on the Eighth and Fourteenth
- 50 -
Amendments’ requirement that the death penalty may not be imposed without
adequate guidelines to ensure that defendants are not arbitrarily sentenced to death.
Id. at 239. At the time of Furman, with the agreement of the State, all imposed
death sentences in Florida were reduced to life. Donaldson v. Sack, 265 So. 2d
499, 505 (Fla. 1972).
Shortly thereafter, Florida revised its death penalty statute, the first in the
nation to set forth aggravating factors that would render a defendant eligible for the
death penalty. See Hurst, 202 So. 3d at 56. Upon review in State v. Dixon, 283
So. 2d 1, 11 (Fla. 1973), a majority of this Court concluded that the new statute
was in conformance with the constitutional requirements of Furman. 283 So. 2d 1,
11 (Fla. 1973). Also in Dixon, this Court concluded that Furman did not render the
actual death penalty unconstitutional and that the Florida Legislature, through the
new statute, had appropriately “chosen to reserve [the] application [of death] to
only the most aggravated and unmitigated of most serious crimes.” Id. at 7.
The United States Supreme Court subsequently, in a series of three cases,
held that Florida’s post-Furman death penalty statute—where the trial judge played
the critical, but not sole, role in determining the facts necessary to impose the death
- 51 -
penalty—did not violate the United States Constitution.16 Therefore, from the time
of the Legislature’s revision of the death penalty in 1972 until Ring in 2002—a
period of three decades—this Court and the State of Florida relied in good faith
upon United States Supreme Court precedent for the proposition that Florida’s
capital sentencing scheme was constitutional.17
It was not until Ring that the United States Supreme Court applied its
reasoning from Apprendi v. New Jersey, 530 U.S. 466 (2000), holding that a jury
must find every fact necessary to increase the maximum punishment, to capital
sentencing. Ring, 536 U.S. at 589. In the words of Justice Scalia, Ring brought
about “new wisdom”:18
The right to trial by jury guaranteed by the Sixth Amendment would
be senselessly diminished if it encompassed the factfinding necessary
to increase a defendant’s sentence by two years, but not the
factfinding necessary to put him to death.
Id. at 609.
16. See Walton v. Arizona, 497 U.S. 639, 648 (1990) (reaffirming the
validity of Florida’s death penalty); Hildwin v. Florida, 490 U.S. 638, 640-41
(1989); Spaziano v. Florida, 468 U.S. 447, 449 (1984).
17. Further, while the reasoning in Apprendi v. New Jersey, 530 U.S. 466,
496 (2000), appeared to challenge the prior reasoning of Walton and similar cases,
the Supreme Court expressly excluded death penalty cases from its holding in
Apprendi. See id. at 497.
18. Ring, 536 U.S. at 611 (Scalia, J., concurring).
- 52 -
Ring specifically overruled Walton v. Arizona, 497 U.S. 639 (1990), but
failed to address the constitutionality of Florida’s capital sentencing scheme by not
discussing Hildwin or Spaziano, thereby leaving those decisions intact to support
an argument that Florida’s capital sentencing scheme remained valid. Ring, 536
U.S. at 603. Thus, this Court continued to rely in good faith on precedent
supporting the validity of Florida’s capital sentencing scheme, despite doubt about
its constitutionality.19 The plurality in Bottoson v. Moore concluded that it was
19. The several individual decisions in Bottoson v. Moore, 833 So. 2d 693(Fla. 2002), reflect this doubt following Ring. Chief Justice Anstead explained the
history of unanimity in jury verdicts in Florida and his concerns about the
continued constitutionality of Florida’s statute:
Florida has long required unanimous verdicts in all criminal cases
including capital cases. Florida Rule of Criminal Procedure 3.440
states that no jury verdict may be rendered unless all jurors agree.
Furthermore, in Jones v. State, 92 So. 2d 261 (Fla. 1956), this Court
held that any interference with the right to a unanimous verdict denies
the defendant a fair trial. However, in Florida, the jury’s advisory
recommendation in a capital case is not statutorily required to be by
unanimous vote. The jury’s advisory recommendation may be by
mere majority vote. This would appear to constitute another visible
constitutional flaw in Florida’s scheme when the Sixth Amendment
right to a jury trial is applied as it was in Apprendi and Ring.
Bottoson, 833 So. 2d at 710 (Anstead, C.J., concurring in result only).
Justice Shaw also found that jury unanimity was required:
It is settled in Florida that the State in a criminal prosecution
has the burden of proving each element of the charged offense beyond
a reasonable doubt. Before jurors can return a guilty verdict, they
must unanimously agree that each element of the charged offense has
- 53 -
been established beyond a reasonable doubt. This requirement of
unanimity has been an inviolate tenet of Florida jurisprudence since
the State was created.
Id. at 714 (Shaw, J., concurring in result only) (footnotes omitted).
Justice Pariente expressed doubt of the continued validity of Florida’s
capital sentencing scheme after Ring, warning that the Court “must confront the
fact that the implications of Ring are inescapable.” Id. at 723 (Pariente, J.,
concurring in result only). She explained:
Just like the Arizona sentencing scheme at issue in Ring, Florida’s
sentencing scheme requires additional findings by the judge before the death
penalty can be imposed. . . .
The additional jury findings of aggravators before imposition of
death are mandated not only by the plain language of the capital
sentencing statute, but also by the Eighth Amendment to the United
States Constitution as interpreted in Furman, and its progeny. Indeed,
as recognized by Justice Scalia in his concurring opinion in Ring, “the
only reason the fact [the aggravating factor] is essential is that [the
United States Supreme] Court has . . . said that the
Constitution requires state law to impose such ‘aggravating
factors.’ ” 536 U.S. at –––– . . . (Scalia, J., concurring). Thus, while
the Eighth Amendment requires the findings of aggravating factors in
an effort to ensure against the death penalty being imposed arbitrarily,
the Sixth Amendment as interpreted by Ring requires that those
aggravating factors be found by a jury. As Justice Scalia explained
in Ring, the bottom line is that “the fundamental meaning of the jury-
trial guarantee of the Sixth Amendment is that all facts essential to
imposition of the level of punishment that the defendant receives—
whether the statute calls them elements of the offense, sentencing
factors, or Mary Jane—must be found by a jury.” Id. (emphasis
supplied).
Id. at 721-22.
Justice Lewis explained:
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within the purview of the United States Supreme Court to overrule Hildwin and
Spaziano to the extent they upheld Florida’s death penalty statute from Sixth
Amendment attacks.20 Nevertheless, the Florida Legislature did not revise our
capital sentencing statute until 2016, after the United States Supreme Court
decided Hurst v. Florida. While inaction was clearly within the Legislature’s
prerogative, it is now for this Court to determine whether to deny relief to those
defendants who were sentenced to death under an invalid statute based solely on
the United States Supreme Court’s delay in overruling Hildwin and Spaziano.
Because Florida’s capital sentencing statute has essentially been
unconstitutional since Ring in 2002, fairness strongly favors applying Hurst,
Thus, our high Court’s conclusions in Ring should be viewed through
a prism which casts its primary focus upon the actual procedures
mandated by the decision. Essentially, this Court cannot focus upon
what the U.S. Supreme Court did not say, but must center upon the
practical effects of the Ring Court’s actual determination. In my
view, the absence of a discussion in Ring of Florida’s procedures
cannot be relied on as solid evidence that the decision has virtually no
effect in Florida, a conclusion with which I cannot concur.
Id. at 727 (Lewis, J., concurring in result only).
20. See id. at 695 (“[T]he United States Supreme Court repeatedly has
reviewed and upheld Florida’s capital sentencing statute over the past quarter of a
century, and although Bottoson contends that there now are areas of ‘irreconcilable
conflict’ in that precedent, the Court in Ring did not address this issue.”) (plurality
opinion) (footnotes omitted).
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retroactively to that time. The “extent of reliance” prong is not a question of
whether this Court properly or in good faith relied on United States Supreme Court
precedent, but how the precedent changed the calculus of the constitutionality of
Florida’s death penalty scheme. In Hurst, we explained how the Hurst v. Florida
opinion focused on the intricacies of Florida’s prior, invalid statute before
determining that Ring applied equally in Florida and Arizona:
Before reaching its conclusion . . . that Florida’s capital
sentencing scheme violated th[e] guarantee of the right to a jury trial
on all elements of the crime of capital murder, the Supreme Court
evaluated Florida’s existing capital sentencing scheme by first noting
that, pursuant to section 775.082(1), Florida Statutes (2012), the
maximum sentence a capital felon may receive on the basis of the
conviction alone is life imprisonment. [Hurst v. Florida, 136 S. Ct.] at
620. . . . The Supreme Court analyzed Florida’s scheme as one in
which a jury renders only an advisory verdict without specifying the
factual basis of its recommendation, while the judge evaluates the
evidence of aggravation and mitigation and makes the ultimate
sentencing determinations. Id. at 620. . . .
. . . The Supreme Court also distinguished Arizona law and
explained that Florida law, similar to the law invalidated in Ring, did
not require the jury to make the critical findings necessary to impose
death, but required the judge to make these findings—rejecting as
significant the distinction that Florida provides for a jury
recommendation as to sentence, whereas Arizona law does not. Id. at
622. “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.” Id. (quoting Walton, 497 U.S. at 648). The Court
explained that in Florida, the trial judge has no jury findings on which
to rely. Id. (citing Steele, 921 So. 2d at 546).
Hurst, 202 So. 3d at 51.
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We now know after Hurst v. Florida that Florida’s capital sentencing statute
was unconstitutional from the time that the United States Supreme Court decided
Ring.21 From Hurst, it is undeniable that Hurst v. Florida changed the calculus of
the constitutionality of capital sentencing in this State. Thus, this factor weighs in
favor of granting retroactive relief to the point of the issuance of Ring.
3. Effect on the Administration of Justice
The last factor of the Stovall/Linkletter test requires this Court to determine
the effect that retroactive application would have on the administration of justice.
As the Court stated in Ferguson v. State, like the other prongs, “[t]his [prong]
requires a balancing of the justice system’s goals of fairness and finality.” 789 So.
2d 306, 312 (Fla. 2001). In this analysis, the Court reviews whether retroactive
application would “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.” Witt, 387 So. 2d at 929-30.
Holding Hurst retroactive to when the United States Supreme Court decided
Ring would not destroy the stability of the law, nor would it render punishments
uncertain and ineffectual. As we determined in Hurst, the death penalty is still a
constitutional punishment, and no defendant will receive a new guilt phase or be
21. Hurst v. Florida, 136 S. Ct. at 621-22 (“The analysis [of] the Ring Court
. . . applies equally to Florida’s [sentencing scheme].”).
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released from prison while a new penalty phase takes place. 202 So. 3d at 65
(“After Hurst v. Florida, the death penalty still remains the ultimate punishment in
Florida, although the Supreme Court has now required that all the critical findings
necessary for imposition of the death penalty be transferred to the jury.”).
Of course, any decision to give retroactive effect to a newly announced rule
of law will have some impact on the administration of justice. That is not the
inquiry. Rather, the inquiry is whether holding a decision retroactive would have
the effect of burdening “the judicial machinery of our state, fiscally and
intellectually, beyond any tolerable limit.” Witt, 387 So. 2d at 929-30. By
embracing this principle as an analytical lynchpin, together with the other two
prongs of the three-part test, the Court was attempting to distinguish between
“jurisprudential upheavals” and “evolutionary refinements,”22 the former being
those that justify retroactive application and the latter being those that do not.23
Thus, we must decide whether interests of fundamental fairness justify the
impact on the administration of justice that would result from holding Hurst
22. State v. Barnum, 921 So. 2d 513, 526 (Fla. 2005); Bunkley v. State, 833
So. 2d 739, 745 (Fla. 2002).
23. See e.g., Barnum, 921 So. 2d at 526 (denying retroactive application of
Thompson v. State, 695 So. 2d 691 (Fla. 1997), because it was “a conventional,
nonconstitutional concept”); Glenn v. State, 558 So. 2d 4, 8 (Fla. 1990) (denying
retroactive relief of Carawan v. State, 515 So. 2d 161, 171 (Fla. 1987), because
applying it retroactively would not “cure any individual injustice or unfairness”).
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retroactive. As we have stated, capital punishment “connotes special concern for
individual fairness because of the possible imposition of a penalty as unredeeming
as death.” Witt, 387 So. 2d at 926. In this case, where the rule announced is of
such fundamental importance, the interests of fairness and “cur[ing] individual
injustice” compel retroactive application of Hurst despite the impact it will have on
the administration of justice. State v. Glenn, 558 So. 2d 4, 8 (Fla. 1990).
We contrast our decision to hold Hurst retroactive with our decision in
Chandler v. Crosby, 916 So. 2d 728 (2005), not to hold the United States Supreme
Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), retroactive. In
the Witt analysis in Chandler, as to the impact on the administration of justice, we
explained:
[I]f Crawford applied retroactively, the administration of justice
would be greatly affected. Retroactive application could require
courts to “overturn convictions” and “delve into stale records to”
determine whether defendants had a chance to cross-examine
unavailable witnesses. Callaway, 658 So. 2d at 987. When new trials
were determined necessary to correct errors under Crawford, the
justice system would then have to deal with a multitude of problems,
including lost evidence and unavailable witnesses. See Windom, 886
So. 2d at 952 (Cantero, J., concurring) (noting similar problems would
arise should Ring apply retroactively). Such retroactive application
would “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.” Witt,
387 So. 2d at 929-30.
Chandler, 916 So. 2d at 730-31.
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Chandler was not limited to death penalty cases but, instead, would have
affected all criminal cases. This effect could have had a major impact on the
administration of justice and the finality of all criminal convictions. Thus, it is
clear, in that situation, fairness did not compel us to disturb the finality of fully
adjudicated cases. See Witt, 38 So. 2d at 924-25.
By contrast, holding Hurst retroactive would only affect the sentences of
capital defendants. Further, in addition to the fact that convictions will not be
disturbed, not every defendant to whom Hurst applies will ultimately receive relief.
As we determined in Hurst, each error should be reviewed under a harmless error
analysis to individually determine whether each defendant will receive a new
penalty phase. Hurst, 202 So. 3d at 67-68; James, 615 So. 2d at 669.
Additionally, we have declined to find Hurst applicable to those cases where the
defendant waived his/her right to trial by jury. See Mullens v. State, 197 So. 3d 16(Fla.), pet. for cert. filed, No. 16-6773 (Nov. 4, 2016).
Finally, we again emphasize that this decision will only impact the sentence
of death, not the conviction. The difference is not guilt or innocence but, instead,
life or death.
4. Conclusion of Retroactivity Analysis
After weighing all of the considerations essential to a faithful Witt analysis,
we conclude that Hurst should be applied retroactively to Mosley. The purpose of
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the holdings in Hurst v. Florida and Hurst is to prevent a violation of the
fundamental and critically important right to a trial by jury. See Hurst, 202 So. 3d
at 50-51, 55.
Applying Hurst retroactively to Mosley, in light of the rights guaranteed by
the United States and Florida Constitutions, supports basic tenets of fundamental
fairness. And it is fundamental fairness that underlies the reasons for retroactivity
of certain constitutionally important decisions, especially those involving the death
penalty. Indeed, as we stated in Witt:
[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.”
387 So. 2d at 925 (citations omitted) (emphasis added).
Defendants who were sentenced to death under Florida’s former,
unconstitutional capital sentencing scheme after Ring should not suffer due to the
United States Supreme Court’s fourteen-year delay in applying Ring to Florida. In
other words, defendants who were sentenced to death based on a statute that was
actually rendered unconstitutional by Ring should not be penalized for the United
States Supreme Court’s delay in explicitly making this determination.
Considerations of fairness and uniformity make it very “difficult to justify
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depriving a person of his liberty or his life, under process no longer considered
acceptable and no longer applied to indistinguishable cases.” Witt, 387 So. 2d at
925. Thus, Mosley, whose sentence was final in 2009, falls into the category of
defendants who should receive the benefit of Hurst.
C. Harmless Error
Having concluded that Hurst applies retroactively to Mosley, this Court must
next examine whether any Hurst error was harmless beyond a reasonable doubt.
On remand from the United States Supreme Court, in Hurst, we explained the
appropriate standard for harmless error review:
Where the error concerns sentencing, the error is harmless only
if there is no reasonable possibility that the error contributed to the
sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).
Although the harmless error test applies to both constitutional errors
and errors not based on constitutional grounds, “the harmless error
test is to be rigorously applied,” [State v.] DiGuilio, 491 So. 2d
[1129,] 1137 [Fla. 1986], and the State bears an extremely heavy
burden in cases involving constitutional error. Therefore, in the
context of a Hurst error, the burden is on the State, as the beneficiary
of the error, to prove beyond a reasonable doubt that the jury’s failure
to unanimously find all the facts necessary for imposition of the death
penalty did not contribute to Hurst’s death sentence in this case. We
reiterate:
The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a
device for the appellate court to substitute itself for the
trier-of-fact by simply weighing the evidence. The focus
is on the effect of the error on the trier-of-fact.
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DiGuilio, 491 So. 2d at 1139. “The question is whether there is a
reasonable possibility that the error affected the [sentence].” Id.
Hurst, 202 So. 3d at 68 (alteration in original). As applied to the right to a jury
trial with regard to the facts necessary to impose the death penalty, it must be clear
beyond a reasonable doubt that a rational jury would have unanimously found all
facts necessary to impose death and that death was the appropriate sentence.
Following Mosley’s penalty phase, the jury recommended a life sentence for
the murder of Lynda Wilkes, and by a vote of eight to four, recommended a
sentence of death for the murder of Jay-Quan Mosley. The court held a Spencer
hearing and, after independently weighing the aggravating factors and mitigating
circumstances, agreed with the jury’s recommendation. In imposing the death
sentence for the murder of Jay-Quan, the trial court found four aggravators applied,
each of which was given great weight: (1) the victim of the capital felony was
under twelve years of age; (2) the murder was cold, calculated, and premeditated
(CCP); (3) the murder was committed for pecuniary gain; and (4) the defendant
had been previously convicted of a capital felony (the contemporaneous murder of
Wilkes). Mosley, 46 So. 3d at 517 n.6. The trial court determined twenty-nine
nonstatutory mitigating factors24 applied, but found that they were outweighed by
24. Supra note 2 (listing the twenty-nine mitigators).
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the significant aggravation and, thus, sentenced Mosley to death for the murder of
his son.
In light of the disparate jury recommendations of life for the murder of
Wilkes and the eight-to-four recommendation of death for the murder of Jay-Quan
and the twenty-nine mitigating circumstances, the State has failed to show beyond
a reasonable doubt that the Hurst error was harmless. The trial court even
recognized as much, stating in the sentencing order:
[I]f there were ever a case which supports the proposition that Florida
juries be asked to specify which aggravating factors they find from the
evidence, this is the one. Had that been required as a matter of law,
this Court would have had a much better understanding of the manner
in which the jury reached its diverse recommendations.
Without written findings, any attempt to discern what mitigation the four jurors
who recommended against death relied on, what aggravating factors, if any, were
found unanimously to be sufficient to impose a sentence of death, and why the jury
gave such disparate recommendations in this case would be mere speculation.
Thus, we cannot conclude that the Hurst error in Mosley’s sentencing was
harmless beyond a reasonable doubt.
CONCLUSION
Based on the foregoing, we affirm the postconviction court’s denial of relief,
and we also deny the claims in Mosley’s petition for a writ of habeas corpus with
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the exception of his claim for relief under Hurst v. Florida. Accordingly, we
vacate the death sentence and remand this case for a new penalty phase.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, J., concurs in part and dissents in part with an opinion, in which
POLSTON, J., concurs.
PERRY, J., concurs in part and dissents in part with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., concurring in part and dissenting in part.
I agree with the decision to affirm the denial of relief on Mosley’s guilt
phase claims. But I strongly disagree with the decision to vacate Mosley’s death
sentence and to remand for a new penalty phase. Based on the jury’s verdict
establishing the existence of an aggravator, I would conclude that there was no
Hurst v. Florida, 136 S. Ct. 616 (2016), violation. I would also conclude that in
any event Hurst v. Florida should not be given retroactive application under the
analysis required by Witt v. State, 387 So. 2d 922 (1980). The denial of retroactive
application ineluctably follows from this Court’s decision in Johnson v. State, 904
So. 2d 400, 412 (Fla. 2005), “hold[ing] that Ring[ v. Arizona, 536 U.S. 584(2002),] does not apply retroactively in Florida.” I would also reject Mosley’s
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other penalty phase claims. The postconviction court’s denial of all relief should
be affirmed.
I.
I adhere to my view that Hurst v. Florida—like Ring—only requires that the
jury find the existence of an aggravator that renders a defendant eligible to be
considered for death. See Hurst v. State, 202 So. 3d 40 (Fla. 2016) (Canady, J.,
dissenting). The majority recognizes that its decision regarding retroactivity
involves “determin[ing] whether to deny relief to those defendants who were
sentenced to death under an invalid statute based solely on the United States
Supreme Court’s delay in overruling Hildwin[ v. Florida, 490 U.S. 638 (1989) (per
curiam),] and Spaziano[ v. Florida, 468 U.S. 447 (1984)].” Majority op. at 55. But
the majority continues to ignore the limit articulated by the Supreme Court on its
overruling of Hildwin and Spaziano. Hurst v. Florida’s overruling of Spaziano and
Hildwin expressly identifies the absence of a jury finding of an aggravator as the
constitutional flaw in Florida’s death penalty statute: “The decisions are overruled
to the extent they allow a sentencing judge to find an aggravating circumstance,
independent of a jury’s factfinding, that is necessary for imposition of the death
penalty.” Hurst v. Florida, 136 S. Ct. at 624. The majority provides no
explanation of how the expansive holding of Hurst v. State can be reconciled with
the narrow focus of Hurst v. Florida. The majority fails to offer such an
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explanation because no such explanation is possible. The majority’s “opinion in
Hurst[ v. State], interpreting the meaning of Hurst v. Florida as applied to Florida’s
capital sentencing scheme,” majority op. at 41, thus offers an “interpretation” that
resolutely ignores the core holding of Hurst v. Florida.
II.
In its analysis of retroactivity, the majority gives a wave-of-the-hand
dismissal to the carefully reasoned decision in Johnson.25 Our decision in Johnson
followed the trajectory established by our earlier decision in Hughes v. State, 901
So. 2d 837 (Fla. 2005), which applied a Witt analysis to conclude that the decision
in Apprendi26—which unquestionably spawned both Ring and Hurst v. Florida—
should not be applied retroactively. The majority acknowledges that “in holding
our statute unconstitutional, the United States Supreme Court applied the exact
reasoning of Ring to Florida’s death penalty sentencing scheme.” Majority op. at
25. Prior to Johnson, various justices had expressed the view that Ring
should not be given retroactive application. See, e.g., Monlyn v. State, 894 So. 2d
832, 841 (Fla. 2004) (Pariente, C.J., specially concurring) (“Applying Witt’s
retroactivity test . . . I conclude that Ring is not among the ‘fundamental and
constitutional law changes which cast serious doubt on the veracity or integrity of
the original trial proceeding.’ Witt, 387 So. 2d at 929. As a decision that bears
only on the procedure in which eligibility for the death penalty is determined
without altering the burden of proof or otherwise increasing the accuracy or
fairness of the proceedings, Ring is an evolutionary refinement in capital
jurisprudence.” (citing Schriro v. Summerlin, 542 U.S. 348 (2004))).
26. Apprendi v. New Jersey, 530 U.S. 466 (2000).
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39. But the majority also asserts without explanation that in Johnson “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.” Majority
op. at 46 (quoting Asay v. State, Nos. SC16-223, SC16-102, & SC16-628 (slip op.
issued Fla. Dec. 22, 2016) (plurality opinion)). The detailed reasoning of Johnson
concerning “the purpose of the new rule” is rejected without any discussion of that
reasoning. Indeed, the majority refuses to address any of the reasoning of
Johnson—which held that Ring was an evolutionary refinement in the law and that
all three prongs of the Stovall/Linkletter27 three-part test weighed heavily against
retroactive application of Ring. This is not the way any court should treat a
carefully reasoned precedent.
Similarly, the majority omits any mention of Witt’s undergirding principle—
which informed our decisions in Johnson and Hughes—that retroactive application
is unwarranted “in the absence of fundamental and constitutional law changes
which cast serious doubt on the veracity or integrity of the original trial
proceeding.” Witt, 387 So. 2d at 929. In Hughes, focusing on this central element
of the Witt framework, we explained the nature of the new rule announced in
Apprendi:
27. Stovall v. Denno, 388 U.S. 293 (1967); Linkletter v. Walker, 381 U.S.
618 (1965).
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Apprendi shifted certain fact-finding from judge to jury and “clarified
and extended” the right to a jury trial to require the State to prove
convictions beyond a reasonable doubt by applying the standard to
certain factors affecting sentencing under certain conditions. United
States v. Mora, 293 F.3d 1213, 1219 (10th Cir.), cert. denied, 537 U.S.
961 (2002). But Apprendi does not impugn the “very integrity of the
fact-finding process” or present “the clear danger of convicting the
innocent.” Johnson v. New Jersey, 384 U.S. 719, 728 (1966) (quoting
Linkletter, 381 U.S. at 639).
Hughes, 901 So. 2d at 844. In support of our conclusion that Ring should not be
given retroactive application, we reached a similar conclusion in Johnson
concerning the nature of the rule announced in Ring. See Johnson, 904 So. 2d at
410.
The majority simply fails to consider whether the rule announced in Hurst v.
Florida “cast[s] serious doubt on the veracity or integrity,” Witt, 387 So. 2d at 929,
of the many penalty phase proceedings that the majority now sweeps aside. The
majority opinion will be searched in vain for any mention—much less an
analysis—of the implications of the new rule for the “veracity or integrity” of those
proceedings, which is an integral part of the Witt framework, and figures
prominently in the evaluation of the purpose of a new rule under the first prong of
our Witt analysis. Id.Similarly, our retroactivity analysis here should be informed by Johnson’s
categorization of Ring as an “evolutionary refinement” and thus a new rule that
should not be given retroactive application under the Witt framework. Johnson,
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904 So. 2d at 405. In Witt we held that “evolutionary refinements in the criminal
law” including new rules “affording new or different standards for . . . procedural
fairness . . . do not compel an abridgement of the finality of judgments.” Witt, 387
So. 2d at 929. In Hughes, we recognized that Apprendi had “announced an
emerging right of procedural fairness that does not compel the disruption of final
judgments.” Hughes, 901 So. 2d at 844. And in Johnson we stated: “Ring was not
a sudden or unforeseeable development in constitutional law; rather, it was ‘an
evolutionary refinement in capital jurisprudence.’ ” Johnson, 904 So. 2d at 405(quoting Monlyn v. State, 894 So. 2d 832, 841 (Fla. 2004) (Pariente, C.J., specially
concurring)).
If Ring—which involved an application of the logic of Apprendi
notwithstanding Apprendi’s disavowal of any application to capital sentencing—
was an evolutionary refinement, it necessarily follows that Ring’s application in
Hurst v. Florida, which according to the majority “applied the exact reasoning of
Ring,” majority op. at 39, also is an evolutionary refinement. The majority, of
course, omits any mention of our conclusion in Johnson that Ring was an
evolutionary refinement, since the majority gives no attention to the analysis
contained in Johnson.
In Johnson, we highlighted Witt’s recognition that “once a conviction has
been upheld on appeal, the State acquires a strong interest in finality.” Johnson,
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904 So. 2d at 407. As we stated in Witt: “The importance of finality in any justice
system, including the criminal justice system, cannot be understated.” Witt, 387
So. 2d at 925. But the majority here does not acknowledge the State’s strong
interest in finality—an interest that is paralleled by the interest of victims’
families—in the postconviction context. The majority’s conclusory deliverances
on the three prongs of the Stovall/Linkletter test adopted in Witt give no
consideration to the circumstances that we held in Johnson strongly weighed
against thwarting the State’s interest in the finality of death sentences.
Admittedly, the scope of the holding in Hurst v. Florida goes beyond
anything contemplated by the Johnson Court when it determined that Ring should
not be applied retroactively. In Johnson we observed that Ring claims had
“[u]sually . . . failed because the sentence was supported by an aggravating factor
found by a jury beyond a reasonable doubt, such as a prior violent felony
conviction or a contemporaneous enumerated felony conviction” and stated that
“[w]e could easily dispose of Johnson’s Ring claim in the same way because his
death sentence was supported by an aggravating factor found by a jury beyond a
reasonable doubt—namely, his prior convictions of two violent felonies.”
Johnson, 904 So. 2d at 406. As I have explained, that basis for resolving Ring
claims remains a basis for resolving—that is, rejecting—Hurst v. Florida claims.
But even under the broader “interpretation” of Hurst v. Florida adopted by the
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majority, Johnson’s analysis of the three-part test still identifies the considerations
that are relevant to determining whether retroactive effect should be given to a new
rule defining the way the Sixth Amendment must be applied to penalty phase
proceedings. Those considerations weigh decisively against retroactive
application.
A.
The first prong of the test we employed in Witt focuses on “the purpose to
be served” by the new rule. Johnson, 904 So. 2d at 409 (citing Witt, 387 So. 2d at
926). In Johnson, we analyzed this factor based on elements of the reasoning of
the United States Supreme Court in Schriro v. Summerlin, 542 U.S. 348, 358
(2004), which held for purposes of federal law that “Ring announced a new
procedural rule that does not apply retroactively to cases already final on direct
review.” We specifically emphasized the “Supreme Court’s characterization of the
purpose of Ring,” and stated that “[t]o the extent that the purpose of Ring is a
factor in our own retroactivity test, a recent discussion of that purpose by the very
Court that decided Ring is obviously worthy of our attention and deference.”
Johnson, 904 So. 2d at 410 n.4. We pointed out that “[t]he Supreme Court
cautioned in Ring that its determination of who decides whether a defendant is
eligible for the death penalty ‘does not turn on the relative rationality, fairness, or
efficiency of potential factfinders,’ ” id. at 409-10 (quoting 536 U.S. at 607), and
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that “[t]he Court subsequently stated in Summerlin that ‘for every argument why
juries are more accurate factfinders, there is another why they are less accurate,’ ”
id. at 410 (quoting 124 S. Ct. at 2525).
Based on the reasoning of Summerlin, we went on to state that “[t]he
purpose of the new rule in Ring is to conform criminal procedure to the Sixth
Amendment’s jury trial guarantee, and not to enhance the fairness or efficiency of
death penalty procedures.” Id. We further relied on our decision “[i]n Williams v.
State, 421 So. 2d 512, 515 (Fla. 1982), [in which] we refused to apply a rule
retroactively in part because it ‘did not involve an attack on the fairness of the
trial.’ ” Id. We also invoked Witt’s statement that retroactive application is
inappropriate “in the absence of fundamental and constitutional law changes which
cast serious doubt on the veracity or integrity of the original trial proceeding,” id.(quoting Witt, 387 So. 2d at 929), and determined that “Ring casts no such doubt,”
id. We held that “[t]he first Witt factor therefore disfavors retroactive application.”
Id.In Summerlin, the Supreme Court also relied on the pre-Teague28
retroactivity analysis in DeStefano v. Woods, 392 U.S. 631 (1968) (per curiam).
28. Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion). I agree with
Justice Polston that the framework established in Teague is more workable than
Witt. See Asay v. State, Nos. SC16-223, SC16-102, & SC16-628 (slip op. issued
Fla. Dec. 22, 2016) (Polston, J., concurring); see also Johnson v. State, 904 So. 2d
400, 413 (Fla. 2005) (Cantero, J., concurring) (explaining that this Court should
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Applying a test identical to the Witt three-part test, DeStefano denied retroactive
effect to Duncan v. Louisiana, 391 U.S. 145 (1968), which held that the Sixth
Amendment’s jury-trial guarantee was applicable to the States. Summerlin
explained the reasoning of DeStefano concerning the purpose served by Duncan:
We noted [in DeStefano] that, although “the right to jury trial
generally tends to prevent arbitrariness and repression[,] . . . ‘[w]e
would not assert . . . that every criminal trial—or any particular trial—
held before a judge alone is unfair or that a defendant may never be as
fairly treated by a judge as he would be by a jury.’ ” 392 U.S., at 633-
634 (quoting Duncan, supra, at 158). We concluded that “[t]he values
implemented by the right to jury trial would not measurably be served
by requiring retrial of all persons convicted in the past by procedures
not consistent with the Sixth Amendment right to jury trial.” 392
U.S., at 634.
Summerlin, 542 U.S. at 357 (second, third, and fourth alterations in original).
Summerlin concluded that “[i]f under DeStefano a trial held entirely without a jury
was not impermissibly inaccurate, it is hard to see how” the Sixth Amendment
violation condemned in Ring could result in such “impermissibly inaccurate”
proceedings. Id.; see also Washington v. State, 907 So. 2d 512, 516 (Fla. 2005)
(Lewis, J., concurring) (“[T]he purpose served by a new rule of law is a key factor
in determining retroactivity in Florida, and the United States Supreme Court in
DeStefano held that the purpose served by the jury-trial guarantee (‘to prevent
apply the Teague standard when determining the retroactivity of United States
Supreme Court decisions). But here, analysis under Witt is sufficient to resolve the
retroactivity issue.
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arbitrariness and repression’) ‘favor[s] only prospective application’ of that
guarantee to the states. Therefore, I cannot logically say that the purpose served by
the jury fact-finding requirement of Apprendi and Ring favors a different treatment
in this regard.” (second alteration in original) (footnotes omitted)).
The majority here quietly brushes all this aside—with no explanation of why
the reasoning is either wrong or inapplicable—and delivers an analysis under
which any new rule regarding the scope of the Sixth Amendment may be deemed
to have a purpose that supports retroactive application.
B.
The second prong addresses “the extent of reliance on the prior rule.”
Johnson, 904 So. 2d at 409 (citing Witt, 387 So. 2d at 926). In Johnson, we
concluded that this factor “[l]ike the first factor . . . weighs heavily against
retroactive application of Ring” because “Florida has relied to an immeasurably
large extent on its capital sentencing scheme.” Id. at 410. In Johnson we also
emphasized that the State’s reliance on the precedents that upheld the validity of
Florida’s death penalty statute was entirely reasonable: “Based on all of the
information available at the time of Ring, Florida had every reason to believe that
its capital sentencing scheme was constitutionally sound and worthy of reliance.”
Id. at 411. The State continued to reasonably rely to “an immeasurably large
extent,” id. at 410, on the undisturbed holdings of Hildwin and Spaziano
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throughout the entire fourteen-year period between the decision in Ring and the
decision in Hurst v. Florida—a period in which both this Court and the Supreme
Court time after time rejected claims challenging Florida’s death penalty statute
under Ring.
The majority does not question the extent of the State’s reliance on Hildwin
and Spaziano after Ring issued. Nor does the majority question the good faith of
the State—or this Court—in its post-Ring reliance on those precedents. Instead,
the majority changes the subject. The majority states that “[w]e now know after
Hurst v. Florida that Florida’s capital sentencing statute was unconstitutional from
the time that the United States Supreme Court decided Ring” and that “it is
undeniable that Hurst v. Florida changed the calculus of the constitutionality of
capital sentencing in this State.” Majority op. at 57. From this, the majority
concludes that the extent-of-reliance-on-the-prior-rule factor “weighs in favor of
granting retroactive relief to the point of the issuance of Ring.” Majority op. at 57.
But this is a non sequitur. The fact that “Hurst v. Florida changed the calculus of
the constitutionality of capital sentencing,” majority op. at 57, in Florida has no
bearing on the extent of the State’s reliance on the old rule. Any case announcing
a new rule necessarily “change[s] the calculus,” majority op. at 57, of the
applicable law. By relying on this truism as the basis for its analysis, the majority
renders this prong of the Witt test meaningless.
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C.
The third prong addresses “the effect that retroactive application of the new
rule would have on the administration of justice.” Johnson, 904 So. 2d at 409
(citing Witt, 387 So. 2d at 926). The majority errs in concluding that the
“analytical lynchpin” of this factor “is whether holding a decision retroactive
would have the effect of burdening ‘the judicial machinery of our state, fiscally
and intellectually, beyond any tolerable limit.’ ” Majority op. at 58 (quoting Witt,
387 So. 2d at 929-30). The majority suggests that this supposed “analytical
lynchpin” is used “to distinguish between ‘jurisprudential upheavals’ and
‘evolutionary refinements.’ ” Majority op. at 58 (quoting Witt, 387 So. 2d at 929).
From this the majority fashions a rule that the third prong will weigh against
retroactive application only if the effect of the new rule will burden the
administration of justice “beyond any tolerable limit.” Majority op. at 58 (quoting
Witt, 387 So. 2d at 930). But this twists the reasoning of Witt beyond recognition.
The point Witt actually makes is that frequently occurring “evolutionary
refinements in the criminal law”—as opposed to rare “jurisprudential upheavals”
like Gideon v. Wainwright29—should not be given retroactive effect because doing
29. Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that each state
must provide counsel to every indigent defendant charged with a felony at all
critical stages of the proceeding).
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so would strain the system of justice “beyond any tolerable limit.” Witt, 387 So.
2d at 929-30. From this sensible point concerning the drastic impact of giving
retroactive application to all evolutionary refinements—which by their nature
occur with great frequency—the majority makes an unreasoned analytical hop to
the wholly unwarranted conclusion that concerns about avoiding undue strains on
the administration of justice come into play only when retroactive application will
strain the system of justice “beyond any tolerable limit.” Majority op. at 58
(quoting Witt, 387 So. 2d at 930). In an exercise of fallacious reasoning, the
majority thus turns an impact that is sufficient to count against retroactive
application into an impact that is necessary to count against retroactive application.
But even under the test fallaciously set up by the majority, the strain on the system
of justice inflicted by giving retroactive effect to the majority’s misinterpretation of
Hurst v. Florida is “beyond any tolerable limit.” Witt, 387 So. 2d at 930.
In Johnson, we concluded that applying “Ring retroactively in Florida . . .
would consume immense judicial resources without any corresponding benefit to
the accuracy or reliability of penalty phase proceedings.” Johnson, 904 So. 2d at
412. The same conclusion applies concerning retroactive application of Hurst v.
Florida. While the system is processing new death cases, the system will also be
burdened with new penalty phase proceedings for the vast majority of the death
cases that became final after Ring issued in 2002. The difficulties involved in
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conducting new penalty phase proceedings for such a large number of cases
involving murders committed over such an extended period of time truly beggars
description. The impact on the system of justice—courts, prosecutors, and public
defenders—will be enormous. Contrary to the majority’s suggestion, that impact is
not rendered insignificant by the fact that giving full retroactivity would have a
greater impact. This factor—as in Johnson—weighs strongly against retroactive
application.
III.
I would also reject the majority’s reliance on James v. State, 615 So. 2d 668(Fla. 1993). First, James cannot be reconciled with the balancing process required
by Witt. The majority itself recognizes that “balancing fairness versus finality is
the essence of a Witt retroactivity analysis.” Majority op. at 46 (emphasis added).
But in applying James, the majority forsakes the “essence” of retroactivity analysis
by jettisoning any thought of the State’s interest in finality—no matter how
weighty that interest might be. Although James applied a new rule retroactively, it
gave no consideration to the framework for retroactivity established in Witt. James
said not one word about Witt. In ignoring Witt, James totally disregarded the
State’s strong interest in finality in the postconviction context. A decision that
simply ignored existing precedent will rarely be entitled to any more weight as a
precedent than the weight it afforded to the authority it ignored.
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Second, the supposed rule of “fundamental unfairness” articulated in James
is deeply problematic—if not entirely incoherent—when judged by its own terms.
If counsel accepted our decisions at face value and relied on the United States
Supreme Court’s repeated rejection of Ring claims, the client loses under James.
But if counsel raised claims that had been consistently rejected, the client wins.
This hardly comports with the notion of fundamental fairness. The concept of
fundamental error is based on the recognition that some matters are so important
that it is fundamentally unfair for the client to suffer as a result of counsel’s
oversight. But James says that it is fundamentally fair for a defendant to suffer
because counsel had insufficient foresight.
James should be abrogated.
IV.
The new rule articulated in Hurst v. Florida—which simply requires that the
jury find an aggravator—is an evolutionary refinement in the law that does not cast
doubt on the veracity or integrity of penalty phase proceedings resulting in death
sentences that are now final. Nothing in our retroactivity jurisprudence warrants
setting aside the State’s weighty interest in the finality of these sentences. The
State’s reliance on the old rule—as articulated in Hildwin and Spaziano—was
undeniably immense and entirely in good faith. Based on an indefensible
misreading of Hurst v. Florida and a retroactivity analysis that leaves the Witt
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framework in tatters, the majority unjustifiably plunges the administration of the
death penalty in Florida into turmoil that will undoubtedly extend for years. I
strongly dissent from this badly flawed decision.
POLSTON, J., concurs.
PERRY, J., concurring in part and dissenting in part.
I concur with the majority’s decision to affirm the postconviction court’s
denial of relief as it pertains to Mosley’s convictions and to deny all claims except
Mosley’s claim pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016), in Mosley’s
petition for a writ of habeas corpus. Because I believe that Hurst v. Florida
retroactively applies to all capital defendants irrespective of the date on which the
defendant’s death sentence became final, I likewise concur in the majority’s
determination that the United States Supreme Court’s decision both applies to
Mosley and requires that we vacate his death sentence. See Asay v. State, SC16-
223, slip op. at 71 (Fla. Dec. 22, 2016) (Perry, J., dissenting).
However, because Florida law requires that Mosley be sentenced to life in
prison as a consequence of his unconstitutional death sentence, I disagree with the
majority’s decision to remand for a new penalty phase proceeding instead of
remanding for imposition of a life sentence. See § 775.082(2), Fla. Stat. (2016).
As I explained fully in Hurst v. State, 202 So. 3d 40, 75-76 (Fla. 2016)
(Perry, J., concurring in part and dissenting in part), there is no compelling reason
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for this Court not to apply the plain language of section 775.082(2), Florida
Statutes. Because the majority of this Court has determined that Mosley’s death
sentence was unconstitutionally imposed, Mosley is entitled to the clear and
unambiguous statutory remedy that the Legislature has specified:
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).
See § 775.082(2), Fla. Stat. (emphasis added). 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. I consequently cannot agree that the statute was intended as a fail-
safe mechanism for when this Court or the United States Supreme Court declared
that the death penalty was categorically unconstitutional. Cf. Hurst v. State, 202
So. 3d at 66.
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Two Cases:
An Appeal from the Circuit Court in and for Duval County,
Michael R. Weatherby, Judge - Case No. 162004CF006675AXXXMA
And an Original Proceeding – Habeas Corpus
Richard Adam Sichta, Susanne Kaye Sichta, and Joseph Stewart Hamrick of The
Sichta Firm, LLC, Jacksonville, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, and Carine L. Mitz, Assistant Attorney
General, Tallahassee, Florida,
for Appellee/Respondent
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