IN THE SUPREME COURT OF FLORIDA. vs. Case No. SC

Transcription

1 IN THE SUPREME COURT OF FLORIDA MARK JAMES ASAY, Appellant, vs. Case No. SC STATE OF FLORIDA, Appellee. / ON APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA ANSWER BRIEF OF APPELLEE CHARLES J. CRIST, JR. ATTORNEY GENERAL CASSANDRA K. DOLGIN Assistant Attorney General Florida Bar Number OFFICE OF THE ATTORNEY GENERAL The Capitol Tallahassee, FL (850) Ext 4583 FAX (850)

2 COUNSEL FOR APPELLEE TABLE OF CONTENTS TABLE OF AUTHORITIES... iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND OF THE FACTS... 2 SUMMARY OF THE ARGUMENT ARGUMENTS ISSUE I WHETHER THE LOWER COURT PROPERLY HELD THAT DEFENDANT WAS NOT ENTITLED TO RESENTENCING IN LIGHT OF RING v. ARIZONA? ISSUE II WHETHER THE LOWER COURT PROPERLY HELD THAT RING v. ARIZONA SHOULD NOT BE GIVEN RETROACTIVE EFFECT CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPE SIZE AND STYLE ii

3 TABLE OF AUTHORITIES Pages CASES Agostini v. Felton, 521 U.S. 203 (1997) Apprendi v. New Jersey, 530 U.S. 466 (2000)... 10, 11, 13, 14, 16 n.2, 17, 20 Asay v. Moore, 828 So. 2d 985 (Fla. 2002) Asay v. State, 580 So. 2d 610 (Fla.), cert. denied, 502 U.S. 895 (1991)... 4, 17 Asay v. State, 769 So. 2d 974 (Fla. 2000)... 6 Asay v. State, No. SC (Fla. 2004)... 7 Banks v. State, 842 So. 2d 788 (Fla. 2003) Barnes v. State, 794 So.2d 590 (Fla. 2001) Blakely v. Washington, 124 S.Ct (2004)... 10, 11, 17, 20 Brown v. State, 721 So. 2d 274 (Fla. 1998), cert. denied, 526 U.S (1999) Burns v. State, 699 So. 2d 646 (Fla. 1997), cert. denied, 522 U.S (1998) Caldwell v. Mississippi, 472 U.S. 320 (1985) Caspari v. Bohlen, 510 U.S. 383 (1994) DeStefano v. Woods, 392 U.S. 631 (1968) Douglas v. State, 2004 Fla. LEXIS 659 (Fla. May 6, 2004) iii

4 Dugger v. Adams, 489 U.S. 401 (1989) Ferguson v. State, 789 So. 2d 306 (Fla. 2001)... 23, Floyd v. State, 850 So. 2d 383 (Fla. 2002) Gamble v. State, 2004 Fla. LEXIS 660 (Fla. May 6, 2004) Griffith v. Kentucky, 479 U.S. 314 (1987) Hamilton v. State, 2004 Fla. LEXIS 891 (Fla. June 3, 2004) Henry v. State, 862 So. 2d 679 (Fla. 2003) Huff v. State, 622 So.2d 982 (Fla. 1993)... 6 Hughes v. State, 826 So. 2d 1070 (Fla. 1st DCA 2002), review granted (1/10/03) Johnston v. Moore, 789 So. 2d 262 (Fla. 2001) Jones v. United States, 526 U.S. 227 (1999) n.2 Linkletter v. Walker, 381 U.S. 618 (1965) McGregor v. State, 789 So.2d 976 (Fla. 2001) Owen v. State, 862 So. 2d 687 (Fla. 2003), motion to defer ruling on cert. petition granted, 124 S.Ct (2004) Patton v. State, 2004 Fla. LEXIS 676 (Fla. May 20, 2004) Proffitt v. Florida, 428 U.S. 252 (1976) Ring v. Arizona, 536 U.S. 584 (2002)... 7, 8, 10, 11, 12, 13, 14, 15, 16 n.2, 17, 19, 20, 24 iv

5 Rivera v. State, 859 So. 2d 495 (Fla. 2003) Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) Romano v. Oklahoma, 512 U.S. 1 (1994) Schriro v. Summerlin, 124 S.Ct (2004)... 11, 12, 19, 20 Stovall v. Denno, 388 U.S. 293 (1967)... 21, 24 Teague v. Lane, 489 U.S. 288 (1989) (plurality)... 10, 12, 21, 22 Turner v. Crosby, 339 F.3d 1247 (11 th Cir. 2003), cert. denied, 124 S. Ct (2004) United States v. Addonizio, 442 U.S. 178 (1979) Walton v. Arizona, 497 U.S. 639 (1990) Windom v. State, 2004 Fla. LEXIS 664 (Fla. May 6, 2004) , 22 Witt v. State, 387 So. 2d 922 (Fla.), cert. denied, 449 U.S (1980)... 10, 11, 19, 21, 22 Wright v. Secretary for the Department of Corrections, 278 F.3d 1245 (11th Cir. 2002), cert. denied, 538 U.S. 906 (2003) CONSTITUTIONAL PROVISIONS, ACTS, STATUTES AND RULES Fla. R. App. P (a) Fla. R. App. P (b)(3)... 1 Fla. R. Crim. P v

6 PRELIMINARY STATEMENT Appellant, Mark James Asay, appeals from the judgment of the Fourth Judicial Circuit, Duval County, Florida, denying his successive motion for postconviction relief. References to appellant will be to Asay or Appellant, and references to appellee will be to the State or Appellee. The record on appeal consists of one Transcript Of Record, and for the convenience of the Court, the State will cite to the record in a manner similar to that used by the Appellant, i.e., to the clerk s record on appeal as R., with the appropriate page citations as required by Fla. R. App. P (b)(3). 1

7 Trial Proceedings STATEMENT OF THE CASE AND OF THE FACTS Mark James Asay, was charged by indictment in the Circuit Court of Duval County, Florida, on August 20, 1987, with the first-degree murders of Robert Lee Booker and Robert McDowell. The facts, as found by this Court on direct appeal, are as follows: According to testimony of Asay s brother, Robbie, and Robbie s friend, Bubba McQuinn, on July 17, 1987, the three met at a local bar where they drank beer and shot pool. They left the bar around 12:00 a.m. and went to a second bar were they stayed until closing at 2:00 a.m. Although Asay drank a number of beers, both Bubba and Robbie testified that Asay did not appear drunk or otherwise impaired. After the bar closed, Robbie said he wanted to try to pick up a girl he had seen at the bar, so Bubba and Asay drove around the corner in Asay s truck. They returned to discover that Robbie had been unsuccessful with the girl he had seen, so Bubba suggested that they go downtown to find some prostitutes and he would pay for oral sex for them all. Asay and Bubba left in Asay s truck and Robbie left in his. Once downtown, Asay and Bubba soon spotted Robbie who was inside his truck talking to a black man, Robert Lee Booker. Robbie was telling Booker who was standing at the driver s side window of Robbie s truck that he and his friends were looking for prostitutes. After spotting Booker standing by Robbie s truck, Asay told Bubba to pull up next to the truck. Asay immediately got out of his truck, proceeded to Robbie s truck, and told Robbie You know you ain t got to take no s--t from these f---ing niggers. Although Robbie told Asay that everything is cool, Asay began to point his finger in Booker s face and verbally attack him. When Booker told him Don t put your finger in my face, Asay responded by saying F--k you, 2

8 nigger and pulling his gun from his back pocket, shooting Booker once in the abdomen. Booker grabbed his side and ran. According to the medical examiner, the bullet perforated the intestines and an artery causing internal hemorrhaging. Booker s body was later found under the edge of a nearby house. Robbie drove away immediately after the shooting. Asay jumped into the back of his truck, as Bubba drove off. When Asay got into the cab of the truck, Bubba asked him why he shot Booker. Asay responded, Because you got to show a nigger who is boss. When asked if he thought he killed Booker, Asay replied, No, I just scared the s--t out of him. Bubba testified that after the shooting, Asay and Bubba continued to look for prostitutes. According to Bubba, he saw Renee who he knew would give them oral sex. It appears that at the time neither Bubba nor Asay was aware that Renee was actually Robert McDowell, a black man dressed as a woman. According to Bubba, he negotiated a deal for oral sex for them both. Bubba drove the truck into a nearby alley. McDowell followed. Bubba testified that McDowell refused to get into the truck with them both, so Asay left the truck and walked away to act as a lookout while Bubba and McDowell had sex. As McDowell started to get into the truck with Bubba, Asay returned, grabbed McDowell s arm, pulled him from the truck and began shooting him. McDowell was shot six times while he was backing up and attempting to get away. Asay jumped back in his truck and told Bubba to drive away. When asked why he shot McDowell, Asay told Bubba that he did it because the bitch had beat him out of ten dollars on a blow job. McDowell s body was found on the ground in the alley soon after the shots were heard. According to the medical examiner, any of three wounds to the chest cavity would have been fatal. Asay later told Charlie Moore in the presence of Moore s cousin, Danny, that he shot McDowell because McDowell had cheated him out of ten dollars on a drug deal and that he had told McDowell, if he ever got him that he would get even. Asay told Moore that he was out looking for whores, when he came across McDowell. According to 3

9 Moore s cousin, Danny, Asay also told Moore that his plan was to have Bubba get McDowell in the truck and they would take her off and screw her and kill her. Moore testified that Asay told him that when Bubba didn t have [McDowell] in the truck so they could go beat him up, Asay grabbed [McDowell] by the arm and stuck the gun in his chest and shot him four times, and that when he hit the ground, he finished him off. As a result of tips received from Moore and his cousin after McDowell s murder was featured on a television Crime Watch segment, Asay was arrested and charged by indictment with two counts of first-degree murder. The state also presented testimony of Thomas Gross, who was Asay s cellmate while he was awaiting trial. Gross testified that when the black prisoners, who were also housed in their cell, were out in the recreation area, Asay told him he was awaiting trial for a couple of murders. According to Gross, Asay then showed him some newspaper articles and told him, I shot them niggers. While they were discussing the murders, Asay showed Gross his tattoos, which included a swastika, the words White Pride, and the initials SWP which Gross said stand for supreme white power. Asay was found guilty of both murders. In accordance with the jury s recommendations, the trial court imposed a sentence of death for each conviction. The following two aggravating factors were found in connection with both murders: 1) the murder was committed by a person under sentence of imprisonment because Asay was on parole; and 2) Asay had been previously convicted of a capital felony based on the contemporaneous murder conviction (5)(a), (b), Fla. Stat. (1987). In connection with the McDowell murder, the court found a third aggravating factor, that the murder was committed in a cold, calculated, and premeditated manner, without any pretense of any moral or legal justification (5)(i), Fla. Stat. (1987). Asay s age of twenty-three at the time of the offenses was found in mitigation as to both murders (6)(g), Fla. Stat. (1987). Asay v. State, 580 So. 2d 610, (Fla.), cert. denied, 502 U.S. 895 (1991). 4

10 Direct Appeal Asay filed his notice of appeal on December 8, 1988, and raised the following seven issues on direct appeal: (1) the trial court erred in allowing racial prejudice to be injected into the trial; (2) the trial court erred in failing to advise Asay of his right to represent himself and to conduct an inquiry pursuant to Faretta v. California; (3) the trial judge erred in denying Asay s motion for judgment of acquittal on count I of the indictment charging him with the first-degree premeditated murder of Robert Lee Booker; (4) the trial court erred in denying Asay s pro se motion for a continuance of the penalty phase of the trial; (5) the trial court erred in finding the McDowell murder was committed in a cold, calculated, and premeditated manner; (6) death is not proportionate for the murders; and (7) the prosecution improperly diminished the jury s role in sentencing. This Court affirmed the judgment of conviction and sentences on May 16, Initial Motion To Vacate Asay filed his motion for postconviction relief on March 24, 1993 and an 5

11 amended motion on November 24, 1993, raising twenty issues. See Asay v. State, 769 So. 2d 974, n.5 (Fla. 2000). Following a Huff 1 hearing on February 12, 1996 and an evidentiary hearing, the circuit court denied relief on April 23, Postconviction Relief Appeal and Habeas Corpus Petition An appeal of denial of postconviction relief was thereafter made, wherein Appellant raised the following issues: (1) denial of due process based upon judicial bias; (2) denial of full and fair evidentiary hearing; (3) ineffective assistance of trial counsel at the penalty phase of trial; (4) ineffective assistance of trial counsel at the guilt phase of trial; and (5) summary denial of meritorious claims. Asay, 769 So. 2d at , , , 989. This Court affirmed the denial of Appellant s Rule motion on October 26, 2000 in a modified opinion. Asay subsequently filed a petition for writ of habeas corpus on October 25, 2001, alleging (1) ineffective assistance of appellate counsel in failing to argue on appeal that Asay was absent during critical stages of the proceedings; (2) Asay's 1 Huff v. State, 622 So.2d 982 (Fla. 1993). 6

12 death sentences are unconstitutional because Asay was impermissibly limited from presenting mitigation, the trial court failed to consider and weigh mitigation, and the prosecutor made impermissible arguments regarding aggravation; (3) ineffective assistance of appellate counsel for failing to raise on appeal the trial court's failure to give a requested instruction on CCP; (4) ineffective assistance of appellate counsel for failing to raise on appeal penalty phase instructions that improperly shifted the burden of proof regarding the appropriateness of a life sentence; and (5) the unconstitutionality of Florida's capital sentencing statute and instructions given pursuant thereto. Asay v. Moore, 828 So. 2d 985, 989 (Fla. 2002). This Court denied relief on October 4, Id. at 993. Appellant then filed a Pro Se Motion on May 27, 2003, and a Pro Se Supplemental Motion on June 30, 2003 with this Court, which were treated as a petition for writ of habeas corpus and thereafter voluntarily dismissed on January 9, Asay v. State, No. SC (Fla. 2004). Successive Motion To Vacate On October 17, 2002, Asay filed a successive motion for postconviction relief, asserting that his convictions and sentences of death were obtained in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Florida Constitution...., thereafter citing Ring v. Arizona, 122 S.Ct (2002). R. at 3-4. Specifically, Appellant raised the following two claims: 7

13 I. Florida s capital sentencing scheme is unconstitutional under the fifth, sixth, eighth, and fourteenth amendments to the United States Constitution (Ring v. Arizona) rendering Mr. Asay s death sentences illegal and he is entitled to life sentences. Mr. Asay has been denied his right to trial by jury of the essential elements of the crime of capital first degree murder. At a minimum, Mr. Asay is entitled to a jury trial and jury verdict on the essential elements of capital first degree murder. * * * * * II. Mr. Asay s death sentences are invalid and must be vacated because the elements of the offense necessary to establish capital murder were not charged in the indictment in violation of the sixth, eighth, and fourteenth amendments to the United States Constitution, the Florida Constitution, and due process. R. at 5, 20, respectively. The State opposed Asay s successive motion on the grounds that the claims were procedurally barred, meritless as a matter of law, and that Ring was not retroactive. R. at The lower court denied Appellant s request for postconviction relief on February 23, R. at Asay thereafter filed his Notice Of Appeal on March 11, 2004, and now raises two issues on appeal: I. Ring v. Arizona changed the landscape of death penalty prosecution. Florida s capital sentencing scheme does not comport with either federal or state constitutional protections. [ ] * * * * * 8

14 II. Florida law independently requires that a watershed change in law which requires that application of the principle that all elements of any crime must be decided by a jury not a judge be applied retroactively. Appellant Mark James Asay s Initial Brief (hereinafter Initial Brief ), at 8, 27, respectively (internal footnote omitted). 9

15 SUMMARY OF THE ARGUMENT I. Appellant s claim under Ring v. Arizona is procedurally barred, as the underlying Sixth Amendment claim was not raised at trial. Nor does Ring apply to Appellant s case as that decision is not retroactive, and Blakley v. Washington does not support a contrary result as Blakely relied upon both Ring and Apprendi v. New Jersey. On the merits, Appellant is not entitled to relief because the United States Supreme Court did not overrule the extensive line of cases upholding Florida s death penalty scheme. And finally, the jury s guilty verdicts of the contemporaneous murders found beyond a reasonable doubt take Appellant s case outside the scope of Ring. II. Ring is neither retroactive under federal or state law, i.e., under Teague v. Lane, 489 U.S. 288 (1989) (plurality) or Witt v. State, 387 So. 2d 922 (Fla. 1980), respectively. The Court should adopt the Teague standard for determining whether a new rule of constitutional law should be accorded retroactive application. Irrespective of the governing standard, the lower court properly denied postconviction relief. 10

16 ARGUMENTS I. APPELLANT IS NOT ENTITLED TO RESENTENCING BASED UPON RING v. ARIZONA, 536 U.S. 584 (2002). Notwithstanding his recognition that Ring was held not to apply retroactively as pronounced by Schriro v. Summerlin, 124 S.Ct (2004), see Initial Brief, at 8 n.4, n.5, Appellant asserts that Ring, Summerlin, Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S.Ct (2004), necessitate the determination that Florida s death scheme is woefully Constitutionally inadequate. Initial Brief, at 9. A. Ring is not subject to retroactive application Under Claim I, Appellant discusses the merits of his claim, reserving until Claim II the issue of retroactivity. See Initial Brief, at 11. That issue, however, is a threshold matter that must be resolved before any further consideration of the claim. Witt v. State, 387 So. 2d 922, 924 (Fla.) ( Simply stated, we are confronted with a threshold decision as to when a change of decisional law mandates a reversal of a once valid conviction and sentence of death. ), cert. denied, 449 U.S (1980); see Windom v. State, 2004 Fla. LEXIS 664 * (Fla. May 6, 2004) (Cantero, J., concurring); 11

17 see also Teague v. Lane, 489 U.S. 288, 300 (1989) (plurality) ( Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. ); Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (in the context of federal habeas corpus, if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim ). In Griffith v. Kentucky, 479 U.S. 314 (1987), the United States Supreme Court held that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.... Id. at 328 (emphasis added). Because Ring was decided well after Appellant s conviction became final (June 24, 2002, compared to October 7, 1991, when the petition for certiorari following Asay s direct appeal was denied), the decision does not automatically apply retroactively to Asay s case. See Summerlin, 124 S.Ct. at, 2004 U.S. LEXIS 4574 *7. Because Asay discusses retroactivity under Claim II, the State addresses the matter more comprehensively in that portion of its brief. See infra, at B. Asay s sentencing claim is procedurally barred 12

18 In addition, Asay does not acknowledge nor address his procedural default, and thus makes no showing that he could not have raised his Sixth Amendment sentencing claim before the trial court. As in the case of retroactivity, the issue of whether a claim is subject to a procedural bar is a threshold matter. Cf. Wright v. Secretary for the Department of Corrections, 278 F.3d 1245, 1258 (11th Cir. 2002) (in the context of federal habeas corpus), cert. denied, 538 U.S. 906 (2003). Appellant s Sixth Amendment sentencing claim should have been raised before the state trial court. Turner v. Crosby, 339 F.3d 1247, 1280 (11 th Cir. 2003) (Ring claim must properly be raised in state court), cert. denied, 124 S.Ct (2004). Ring extended the requirement that a jury make certain findings, as set forth in Apprendi, to death penalty cases, thus requiring that the jury make the factual finding that renders the defendant death-penalty eligible. Even if Ring applies retroactively, but see infra, at 19-24, the claim or a variation of it has been known since before the United States Supreme Court issued its decision in Proffitt v. Florida, 428 U.S. 252 (1976), holding that jury sentencing is not constitutionally required. See Turner, 339 F.3d at Because Asay failed to raise the issue in a timely manner, he is now procedurally barred from raising the claim. Thus the Court should deny relief because of the procedural bar. See McGregor v. State, 789 So.2d 976, 977 (Fla. 2001) (Apprendi claim procedurally barred for failure to raise in trial court); Barnes v. State, 13

19 794 So.2d 590, 591 (Fla. 2001) (Apprendi error not preserved for appellate review). C. Ring does not warrant relief Even if Asay s claim is reviewable, he ignores the fact that the United States Supreme Court did not, in Ring or otherwise, overrule its extensive precedent upholding the validity of Florida s death penalty statutory scheme. That court has specifically directed lower courts to leav[e] to this Court the prerogative of overruling its own decisions. Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)). Accordingly, Appellant s reliance upon Ring must be considered in respect to its narrow holding -- i.e., that a judge cannot, sitting alone, find the aggravating circumstance necessary for imposition of the death penalty, id., 122 S.Ct. at 2443 (emphasis added), and in light of those cases upholding Florida s death penalty. Thus Appellant s assertion that [t]he judge clearly was the sentencer a role reserved solely for the jury, Initial Brief, at 17, misstates the holding in Ring. Moreover, this Court, without exception, has held that Florida s death penalty statute is constitutional in light of the United States Supreme Court s pronouncement in Ring. See, e.g., Hamilton v. State, 2004 Fla. LEXIS 891 *16 (Fla. June 3, 2004) (citing cases); Owen v. State, 862 So. 2d 687, 703 (Fla. 2003), motion to defer ruling 14

20 on cert. petition granted, 124 S.Ct (2004); Rivera v. State, 859 So. 2d 495, 508 (Fla. 2003) (citing cases). That Appellant disagrees with that determination, see Initial Brief, at 12, 14-15, does not qualify as a valid reason to abandon the voluminous decisions upholding Florida s death penalty scheme. In support of his position, Appellant points to the fact that the indictment did not set forth any aggravating factors. Initial Brief, at Ring, however, does not established any such requirement. Id., 122 S.Ct. at Moreover, Asay fails to acknowledge that he was charged and convicted of contemporaneous murders. And the Court has previously rejected this claim: Owen s specific argument that his death sentence was unconstitutionally imposed because Florida s capital sentencing scheme fails to require that aggravating circumstances be enumerated and charged in the indictment and by further failing to require specific, unanimous jury findings of aggravating circumstances is unquestionably without merit. Recently, in Doorbal v. State, 837 So. 2d 940 (Fla.), cert. denied, 156 L. Ed. 2d 663, 123 S. Ct (2003), we held, Because [the prior violent felonies] were charged by indictment, and a jury unanimously found Doorbal guilty of them, the prior violent felony aggravator alone clearly satisfies the mandates of the United States and Florida Constitutions, and therefore imposition of the death penalty was constitutional. Id. at 963. As in Doorbal, the death penalty was constitutionally imposed upon Owen in light of the fact that the trial court properly applied the prior violent felony aggravating factor. Owen, 862 So. 2d at ; accord Patton v. State, 2004 Fla. LEXIS 676 *21-*22 (Fla. May 20, 2004); Gamble v. State, 2004 Fla. LEXIS 660 *32 (Fla. May 6, 2004); 15

21 Banks v. State, 842 So. 2d 788, 793 (Fla. 2003). 2 Appellant also argued that the jury instructions erroneously set forth the jury s role in sentencing Appellant. Initial Brief, at This Court, however, has repeatedly held that the Florida Standard Jury Instructions comply with Caldwell v. Mississippi, 472 U.S. 320 (1985). See, e.g., Floyd v. State, 850 So. 2d 383, 404 (Fla. 2002) (citing cases); Brown v. State, 721 So. 2d 274, 283 (Fla. 1998) (citing cases), cert. denied, 526 U.S (1999); Burns v. State, 699 So. 2d 646, 654 (Fla. 1997) (citing cases), cert. denied, 522 U.S (1998). To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury under local law. Dugger v. Adams, 489 U.S. 401, 407 (1989). Appellant fails to make any such showing here. Instead, the instructions properly informed the jury of its role under Florida law, and thus any assertion of a Caldwell violation is without merit. See Romano v. Oklahoma, 512 U.S. 1, 9 (1994) ( The infirmity identified in Caldwell is simply absent in this case: Here, the jury was 2 In addition, neither Ring nor Apprendi require that the jury set forth its findings in writing. As the United States Supreme Court stated in Jones v. United States, 526 U.S. 227 (1999), [i]n Hildwin, a jury made a sentencing recommendation of death, thus necessarily engaging in the factfinding required for imposition of a higher sentence, that is, the determination that at least one aggravating factor has been proved. Jones, 526 U.S. at

22 not affirmatively misled regarding its role in the sentencing process. ). Nor does Appellant s reliance upon Blakely abrogate this Court s jurisprudence respecting Ring, compare Initial Brief, at 9, 12, 20, 23, as Blakely applies Apprendi,, Blakey, 124 S.Ct. at, 2004 U.S. LEXIS 4573 *10, from which Ring extended -- thus not interpreting Florida s death penalty scheme nor altering the law as already interpreted by this Court. Finally, Appellant was convicted of two counts of murder in the first-degree, which were also found as one of the aggravating circumstances for each death sentence imposed. See Asay, 580 So. 2d at 612. Relief therefore is not warranted. Douglas v. State, 2004 Fla. LEXIS 659 *43-44 (Fla. May 6, 2004) ( [Defendant] is not entitled to relief under Ring, which exempts aggravators relying on other convictions from the requirement of jury findings on any fact necessary to impose a sentence of death. See Caballero v. State, 851 So. 2d 655, (Fla. 2003) (rejecting a Ring claim on direct appeal where one of the aggravating circumstances the judge considered was that the defendant committed the murder during the commission of a burglary and kidnapping); Doorbal v. State, 837 So. 2d 940, 963 (Fla.) (stating that prior violent felony aggravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury clearly satisfies the mandates of the United States and Florida Constitutions ), cert. denied, 17

23 539 U.S. 962, 156 L. Ed. 2d 663, 123 S. Ct (2003). ); Henry v. State, 862 So. 2d 679, (Fla. 2003) (same). Argument I should therefore be denied. 18

24 II. NEITHER FEDERAL NOR STATE LAW WARRANT RETROACTIVE APPLICATION OF RING v. ARIZONA, 536 U.S. 584 (2002). Under this argument, Appellant contends that while Ring was held to not apply retroactively under federal law, Initial Brief, at 28 (citing Summerlin), it is up to Florida to determine whether this fundamental concept of jurisprudence should be retroactive under Florida law. Initial Brief, at 29 (emphasis in original). In urging the continued application of retroactivity analysis under Witt v. State, 387 So. 2d 922 (Fla.), cert. denied, 449 U.S (1980), Appellant cites the fact that that standard has been in use for the last two decades. Initial Brief, at Appellant further argues, for the sake of preservation, that he believes that Summerlin was incorrectly decided by the United States Supreme Court, and that under federal law, Ring should have been applied retroactively to all individuals who face the death penalty solely because a judge decided that an aggravating factor existed which was not outweighed by the totality of the mitigation. Initial Brief, at 31 (emphasis in original). Turning first to Appellant s assertion that Summerlin was wrongly decided, his misstatement concerning the issue that was before the court in Ring 3 cannot then 3 That is, Ring does not hold that it is the jury only that can impose a sentence (continued...) 19

25 support his conclusion that it should have been applied retroactively. Moreover, the alternative argument that Summerlin should be limited to its facts as a particular application of Arizona law, Initial Brief, at 31, wholly contradicts Appellant s belief that Ring itself, interpreting an Arizona statute that is different from Florida law, somehow is not limited to the particulars of Arizona law on the basis apparently that Florida s and Arizona s sentencing schemes are the functional equivalent of each other. See Initial Brief, at 19 (citing Walton v. Arizona, 497 U.S. 639 (1990)). Asay simply cannot have it both ways. Appellant s argument that Ring should be applied retroactively under Florida law begins with the assumption that the holding in Ring is a watershed change in law.... Initial Brief, at 27. Calling something watershed, however, does not make it so. And Appellant s reliance upon Blakely for the proposition that the prospective application of Apprendi demonstrates its importance in the Constitutional landscape, Initial Brief, at 33, is inapposite in light of the United States Supreme Court s decision in Summerlin holding that Ring, an extension of Apprendi, does not apply 3 (...continued) of death, but that the jury is responsible for finding additional facts necessary to make a defendant eligible for imposition of a death sentence. Id., 122 S.Ct. at Thus the fact that the trial court actually imposes the sentence following the jury s recommendation does not render the sentence infirm. 20

26 retroactively. Before turning to the issue of retroactivity itself, the State believes that continued reliance upon Witt in analyzing whether a new constitutional rule should be given retroactive effect no longer properly effectuates the goals inherent in retroactivity analysis -- i.e., finality of decisions and ensuring finality and uniformity in individual cases. Witt, 387 So. 2d at 925. First, it bears noting that in Witt itself, this Court relied upon the rationale as stated by the United States Supreme Court behind the finality doctrine in considering the retroactivity issue. Id. at 925 (quoting United States v. Addonizio, 442 U.S. 178, 184 & n.11). And again, the Court in Witt looked to the experience of the United States Supreme Court for direction in identifying when a new rule should be applied retroactively. Id. at (internal citations omitted). That being said, this Court adopted in Witt the standard then followed by the United States Supreme Court. Id. at 926 (citing, e.g., Stovall v. Denno, 388 U.S. 293 (1967); Linkletter v. Walker, 381 U.S. 618 (1965)). Yet as recognized in Teague, [t]he Linkletter retroactivity standard has not led to consistent results. Instead, it has been used to limit application of certain new rules to cases on direct review, other new rules only to the defendants in the cases announcing such rules, and still other new rules to cases in which trials have not yet commenced. Id., 489 U.S. at

27 quite narrow: Moreover, the confines of this Court s retroactivity rule was intended to be First, if punishment [in capital cases] is ever to be imposed for society s most egregious crimes, the disposition of a particular case must at some point be considered final notwithstanding a comparison with other individual cases. Second, we cannot ignore the purpose for our postconviction relief procedure in cases where a death penalty has been imposed, for Florida s post-conviction relief rule came about as a narrow response to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).... Quite clearly, the main purpose for Rule was to provide a method of reviewing a conviction based on a major change of law, where unfairness was so fundamental in either process or substance that the doctrine of finality had to be set aside.... For the policy reasons which underpin the finality of decisions, and because the imposition of any death penalty would be averted by a different construction of our rule, we now declare our adherence to the limited role for post-conviction relief proceedings, even in death penalty cases. Witt, 387 So. 2d at 927. Because this Court s retroactivity analysis derives from that announced by the United States Supreme Court, the unworkability of that former standard, and the intended narrow scope of retroactivity, this Court should abandon Witt in favor of the standard adopted in Teague. Finally, even if retroactivity is to considered under Witt, 387 So. 2d at , Appellant is not entitled to relief. See Windom, 2004 Fla. LEXIS 664 * (Cantero, J., concurring); cf. Hughes v. State, 826 So. 2d 1070, (Fla. 1st 22

28 DCA 2002), review granted (1/10/03) 4. Pursuant to Witt, this Court must consider three factors: the purpose served by the new case; the extent of reliance on the old law; and the effect on the administration of justice from retroactive application. Ferguson v. State, 789 So. 2d 306, 311 (Fla. 2001). When deciding whether to apply a decision retroactively, the fundamental consideration is the balancing of the need for decisional finality against the concern for fairness and uniformity in individual cases. Johnston v. Moore, 789 So. 2d 262, 267 (Fla. 2001). As stated in Ferguson, For a new rule of law to warrant retroactive application it must satisfy three elements: The new rule must (1) originate in either the United States Supreme Court or the Florida Supreme Court; (2) be constitutional in nature; and (3) have fundamental significance. * * * * * As emphasized by this Court in Witt, only major constitutional changes of law will be cognizable in capital cases under Rule So.2d at 929. These major constitutional changes in the law typically fall into one of two categories: (1) those which place beyond the authority of the state the power to regulate certain conduct or to impose certain penalties, or (2) those changes which meet the three-prong test for retroactivity set forth in Stovall v. Denno. McCuiston v. State, 534 So.2d 1144, 1146 (Fla.1988) (citations omitted). The three factors considered under the test announced in Stovall 4 Oral argument was held in Hughes on March 6, 2003 before this Court. To date, an opinion has not yet been issued. 23

29 v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), are: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect on the administration of justice of a retroactive application of the new rule. McCuiston, 534 So.2d at 1146 n. 1. Ferguson, 789 So.2d at 309, 311. Applying Stovall v. Denno, 388 U.S. 293 (1967), the United States Supreme Court has rejected retroactive application of its holding that a violation of the right to a jury trial is not subject to retroactive application: The 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. Second, States undoubtably relied in good faith upon the past opinions of this Court to the effect that the Sixth Amendment right to jury trial was not applicable to the States.... Several States denied requests for jury trial in cases where jury trial would have been mandatory had they fallen with the Sixth Amendment guarantee as it had been construed by this Court.... Third, the effect of a holding of general retroactivity on law enforcement and the administration of justice would be significant, because the denial of jury trial has occurred in a very great number of cases in those States not until now according the Sixth Amendment guarantee. DeStefano v. Woods, 392 U.S. 631, 634 (1968) (internal citations omitted). Based upon the foregoing, Appellant s argument that Ring must be applied retroactively is without merit under both the federal and state standards for determining retroactivity, and Argument II should be denied. 24

30 25

31 CONCLUSION Based on the foregoing arguments and authorities, the judgment denying Asay s successive motion for postconviction relief should be affirmed. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL CASSANDRA K. DOLGIN Assistant Attorney General Florida Bar Number OFFICE OF THE ATTORNEY GENERAL The Capitol Tallahassee, FL (850) Ext 3579 FAX (850) COUNSEL FOR APPELLEE 26

32 CERTIFICATE OF SERVICE Undersigned counsel hereby certifies that a true and correct copy of the foregoing was mailed, postage prepaid, on this day of July, 2004, to: Dale G. Westling, Sr., Esq. 331 E. Union Str. Jacksonville, FL Mary Catherine Bonner, Esq. 207 SW 12th Court Ft. Lauderdale, FL CERTIFICATE OF TYPE SIZE AND STYLE Undersigned counsel hereby certifies that this brief was typed using Times New Roman 14-point font, in conformity with Fla. R. App. P (a). CASSANDRA K. DOLGIN 27