CASE NO PAUL BEASLEY JOHNSON, Appellant, STATE OF FLORIDA, Appellee.

IN THE SUPREME COURT OF FLORIDA CASE NO. 05-701 PAUL BEASLEY JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT, IN AND FOR POLK COUNTY, STATE OF FLORIDA INITIAL BRIEF OF APPELLANT TERRI L. BACKHUS FLA. BAR NO. 0946427 BACKHUS & IZAKOWITZ, P.A. 13014 N. DALE MABRY, #746 TAMPA, FL 33618-2808 (813) 259-4424 COUNSEL FOR APPELLANT

PRELIMINARY STATEMENT This proceeding involves the appeal of the circuit court's summary denial of post-conviction relief. The following symbols will be used to designate references to the record in this appeal: "R." -- record on direct appeal to this Court; 1PC-R. -- record on prior Rule 3.850 appeal to this Court; "2PC-R." -- record on instant 3.850 appeal to this Court.

ii REQUEST FOR ORAL ARGUMENT Mr. Johnson has been sentenced to death. The resolution of the issues involved in this action will therefore determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument would be more than appropriate in this case, given the seriousness of the claims involved and the stakes at issue. Mr. Johnson, through counsel, accordingly urges that the Court permit oral argument.

iii TABLE OF CONTENTS Page PRELIMINARY STATEMENT i REQUEST FOR ORAL ARGUMENTii TABLE OF CONTENTS iii TABLE OF AUTHORITIESiv STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF ARGUMENT 7 STANDARD OF REVIEW 7 ARGUMENT 7 FLORIDA'S CAPITAL SENTENCING STATUTE VIOLATES THE SIXTH AND FOURTEENTH AMENDMENTS. 8 A. UNDER RING, THE FLORIDA STATUTE IS UNCONSTITUTIONAL. 9 1. In Florida, Death Is Not Authorized By A Verdict Of Guilt Of First-Degree Murder.9 2. Florida s Statute Contains Three Death- Eligibility Steps. 10 3. A Florida Jury s Role Does Not Satisfy Ring. 18 B. BOTTOSON V. MOORE AND KING V. MOORE DO NOT DISPOSE OF MR. JOHNSON S CLAIM. 21 C. UNDER RING, MR. JOHNSON S DEATH SENTENCE IS UNCONSTITUTIONAL. 28 D. RING APPLIES RETROACTIVELY. 32 CONCLUSION38 CERTIFICATE OF SERVICE 38 CERTIFICATE OF FONT 38

iv TABLE OF AUTHORITIES Page Almendarez-Torres v. United States, 523 U.S. 224 (1998)28 Anderson v. State, 841 So. 2d 390 (Fla. 2003)21 Apprendi v. New Jersey, 530 U.S. 466 (2000) 8-10, 28 Banks v. State, 2003 WL 1339041 (Fla. Mar. 20, 2003) 21, 23, 36 Bottoson v. Moore, 833 So.2d 693 (Fla. 2002) 21-23 Bottoson v. State, 813 So. 2d 31 (Fla. 2002) 37 Brown v. Louisiana, 447 U.S. 323 (1980) 34 Bruno v. Moore, 838 So. 2d 485 (Fla. 2002) 21, 36 Butler v. State, 2003 WL 1786712 (Fla. Apr. 3, 2003) 21 Caldwell v. Mississippi, 472 U.S. 320 (1985) 29 Chandler v. State, 2003 WL 1883682 (Fla. Apr. 17, 2003)21, 36 Chavez v. State, 832 So. 2d 730 (Fla. 2002) 21 Chicone v. State, 684 So. 2d 736 (Fla. 1996) 30 Delap v. Dugger, 513 So. 2d 659 (Fla. 1987) 37 Doorbal v. State, 837 So. 2d 940 (Fla. 2003) 21, 23 Downs v. Dugger, 514 So. 2d 1069 (Fla. 1987) 37 Duncan v. Louisiana, 391 U.S. 145 (1968)35, 36 Espinosa v. Florida, 112 S. Ct. 2926 (1992) 5 Flanning v. State, 597 So. 2d 864 (Fla. 3d DCA 1992) 19 Fotopoulos v. State, 838 So. 2d 1122 (Fla. 2002) 21, 36 Furman v. Georgia, 408 U.S. 238 (1972) 27 Grim v. State, 841 So. 2d 455 (Fla. 2003) 21, 23 Guidinas v. State, 879 So. 2d 616 (Fla. 2004)22 Hildwin v. Florida, 490 U.S. 638 (1989) 36

v Hitchcock v. Dugger, 481 U.S. 393 (1987)37 Hodges v. State, 2003 WL 21402484 (Fla. June 19, 2003) 21, 36 In re Winship, 397 U.S. 358 (1970) 31 Johnson (Terrell) v. State, 904 So. 2d 400 (Fla. 2005) 32 Johnson v. Moore, 837 So. 2d 343 (Fla. 2002) 6 Johnson v. State, 438 So. 2d 774 (Fla. 1983) 2 Johnson v. State, 608 So. 2d 4 (Fla. 1992) 5 Johnson v. State, 769 So. 2d 990 (Fla. 2000) 6 Johnson v. Wainwright, 498 So. 2d 938 (Fla. 1986) 2 Jones v. State, 2003 WL 21025816 (Fla. May 8, 2003) 21, 36 Jones v. State, 2003 WL 297074 (Fla. Feb. 13, 2003) 23 Jones v. State, 569 So. 2d 1234 (Fla. 1990) 20 Jones v. State, 845 So. 2d 55 (Fla. 2003) 21, 36 Jones v. State, 92 So. 2d 261 (Fla. 1956) 19 Jones v. United States, 526 U.S. 227 (1999) 30 King v. Moore, 831 So.2d 143 (Fla. 2002)21-23, 36 King v. State, 808 So. 2d 1237 (Fla. 2002) 37 Kormondy v. State, 2003 WL 297027 (Fla. Feb. 13, 2003) 21 Lawrence v. State, 2003 WL 1339010 (Fla. Mar. 20, 2003)21 Linkletter v. Walker, 381 U.S. 618 (1965) 33 Lowenfield v. Phelps, 484 U.S. 231 (1988) 26 Lucas v. State, 841 So. 2d 380 (Fla. 2003) 21, 36 Lugo v. State, 2003 WL 359291 (Fla. Feb. 20, 2003)21, 23 Marquard v. State, 2003 WL 31600017 (Fla. Nov. 21, 2002) 21, 36 Menendez v. State, 368 So.2d 1278 (Fla. 1979)27 Mills v. Moore, 786 So. 2d 532 (Fla. 2001) 37

vi Pace v. State, 2003 WL 21191876 (Fla. May 22, 2003) 21, 36 Porter v. Crosby, 840 So. 2d 981 (Fla. 2003) 21, 36 Porter v. Moore, 27 Fla. L. Weekly S606 (Fla. June 20, 2002)37 Porter v. State, 564 So.2d 1060 (Fla. 1990) 26 Proffitt v. State, 510 So.2d 896 (Fla. 1987) 27 Rembert v. State, 445 So.2d 337 (Fla. 1984) 27 Ring v. Arizona, 122 S. Ct. 2428 (2002) 6-10, 18, 20-23, 25, 28 Rivera v. State, 859 So. 2d 495 (Fla. 2003) 22, 23 Sireci v. Moore, 825 So. 2d 882 (Fla. 2002) 37 Spencer v. State, 842 So. 2d 52 (Fla. 2003) 21, 36 State v. Callaway, 658 So. 2d 983 (Fla. 1995)34 State v. Dixon, 283 So. 2d 1 (1973) 10 State v. Dye, 346 So. 2d 538 (Fla. 1977)30 State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001) 7 State v. Gray, 435 So. 2d 816 (Fla. 1983) 30 State v. Overfelt, 457 So. 2d 1385 (Fla. 1984) 19 State v. Whitfield, 107 S.W.3d 253 (Mo. 2003) 16, 18, 24, 25, 33 Stephens v. State, 748 So. 2d 1028 (Fla. 1999) 7 Stovall v. Denno, 388 U.S. 293 (1967) 33, 34 Sullivan v. Louisiana, 508 U.S. 275 (1993) 20, 29, 35 Sweet v. Moore, 822 So. 2d 1269 (Fla. 2002) 36 Thompson v. Dugger, 515 So. 2d 173 (Fla. 1987) 37 Thompson v. State, 648 So. 2d 692 (Fla. 1994) 19 Walton v. Arizona, 497 U.S. 639 (1990) 9, 36 Witt v. State, 387 So. 2d 922 (Fla. 1980) 32-35

Zant v. Stephens, 462 U.S. 862 (1983) 26 vii

1 STATEMENT OF THE CASE AND FACTS In the Circuit Court of the Eighth Judicial Circuit, Alachua County, Florida, Mr. Johnson was charged by indictment dated March 6, 1981, with three counts of first-degree murder, two counts each of robbery, one count of kidnapping, one count of arson and two counts of attempted first-degree murder. 1 As to the three counts of first-degree murder, the indictment read as follows: [Count I] The Grand Jurors of the State of Florida, empaneled and sworn to inquire and true presentment make in and for the County of Polk, upon their oath do present that PAUL BEASLEY JOHNSON of the County of Polk and State of Florida, on the ninth day of January in the year of our lord one thousand nine hundred and eighty one in the County and State aforesaid from a premeditated design to effect the death of a human being, unlawfully did kill a human being, to-wit: William Evans, by shooting by shooting him with a firearm, in violation of Section 782.04, Florida Statutes, contrary to the Statute in such cases made and provided and against the peace and dignity of the State of Florida. [Count II] The Grand Jurors of the State of Florida, empaneled and sworn to inquire and true presentment make in and for the County of Polk, upon their oath do present that PAUL BEASLEY JOHNSON of the County of Polk and State of Florida, on the ninth day of January in the year of our lord one thousand nine hundred and eighty one in the County and State aforesaid from a premeditated design to effect the death of a human being, unlawfully did kill a human being, to-wit: Darrell Ray Beasley, by shooting by shooting him with a firearm, in violation of Section 782.04, Florida Statutes, 1 Venue was changed from Polk County to Alachua County. During post-conviction proceedings, the case was moved back to Polk County. 1

2 contrary to the Statute in such cases made and provided and against the peace and dignity of the State of Florida. [Count III] The Grand Jurors of the State of Florida, empaneled and sworn to inquire and true presentment make in and for the County of Polk, upon their oath do present that PAUL BEASLEY JOHNSON of the County of Polk and State of Florida, on the ninth day of January in the year of our lord one thousand nine hundred and eighty one in the County and State aforesaid from a premeditated design to effect the death of a human being, unlawfully did kill a human being, to-wit: Theron A. Burnham, by shooting by shooting him with a firearm, in violation of Section 782.04, Florida Statutes, contrary to the Statute in such cases made and provided and against the peace and dignity of the State of Florida. (R. 44-45). Mr. Johnson pled not guilty. His original trial was held in September, 1981, and the jury found him guilty on all counts. The trial court sentenced Mr. Johnson to death. On direct appeal, this Court affirmed the convictions and sentences. Johnson v. State, 438 So. 2d 774 (Fla. 1983). Mr. Johnson petitioned this Court for a writ of habeas corpus and was granted a new trial on the grounds that the jury was allowed to separate after it began deliberations. Johnson v. Wainwright, 498 So. 2d 938 (Fla. 1986). The second trial began in October 1987 in Polk County and ended in a mistrial. Subsequently, the trial judge disqualified himself upon defense motion. A change of venue was granted to Alachua County due to excessive pre-trial publicity on the case. Trial was held in Alachua County in April 1988. Mr. Johnson was tried by a jury, which found him guilty on all counts (R. 2

3 3350-3351). During the penalty phase, the jury was repeatedly instructed by the court and told by the prosecutor that its role as to sentencing was merely advisory (R. 3607, 3609, 3611, 3612, 3613, 3614, 3340, 3354, 3356, 3357). These comments reinforced comments made during voir dire, where the court conditioned the prospective jurors by telling them their sentencing decision was only an advisory verdict and emphasizing the birfurcated nature of the trial (R. 484, 618, 622). At the penalty phase, the defense presented evidence that Mr. Johnson acted under the influence of an amphetamine-induced psychosis and that he was substantially impaired as a result of amphetamine intoxication. Three expert witnesses testified regarding this during the penalty phase. The State s own expert, Dr. Gary Ainsworth, testified that the offenses were committed while Mr. Johnson was under extreme emotional or mental disturbance with elements of delirium caused by severe intoxication while on amphetamines. Dr. Ainsworth also opined that Mr. Johnson s ability to conform his conduct to the law was substantially impaired. Numerous lay witnesses testified throughout the trial concerning their personal knowledge of Mr. Johnson s history of drug dependency and as to his use of these drugs on the date of the crimes. Testimony was also presented concerning the poverty and neglect Mr. Johnson suffered as a child. The jury was instructed on numerous aggravating circumstances, including conviction of a prior violent felony, heinous, atrocious or cruel, cold, calculated and premeditated, 3

4 committed during a robbery, kidnapping and/or arson, committed for pecuniary gain, and committed to avoid arrest. The court instructed the jury on the standard that would guide its decision between life and death: [H]owever it is your duty to follow the law that will now be given to you by me, and to render to the Court an advisory sentence, based on your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to ouweigh any aggravating circumstances found to exist. (R. 3607). The court later repeated this standard: Should you find sufficient aggravating circumstances to exist, it will then be your duty to determine whether mitigating circumstances exist that outweigh the aggravating circumstances. (R. 3609-10). The jury recommended death sentences by a vote of eight to four on Count I, nine to three on Count II, and nine to three on Count III (R. 3616). On April 28, 1988, the trial court imposed death sentences on Counts I, II and III (R. 3647). 2 The court found no mitigation and found the following aggravating circumstances: Count I: (1) previous conviction of violent felony; (2) committed while engaging in robbery, kidnapping and arson; (3) committed for financial gain; and (4) committed in a cold, calculated and premeditated manner. Count II: (1) previous conviction of violent felony; (2) committed during a robbery; (3) committed for pecuniary gain; and (4) committed in a cold, calculated and 2 The court further sentenced Mr. Johnson to life for Count IV (robbery), 15 years for Count V (kidnapping), 15 years for Count VI (arson), life for Count VII (robbery), 30 years for Count VIII (first-degree attempted murder) and 30 years for Count IX (firstdegree attempted murder). 4

5 premeditated manner. Count III: (1) previous conviction of violent felony; (2) committed while fleeing after a robbery; (3) committed to avoid or prevent a lawful arrest; and (4) committed in a cold, calculated and premeditated manner. (R. 3547). This Court affirmed the convictions and sentences. Johnson v. State, 608 So. 2d 4 (Fla. 1992). The Court struck the pecuniary gain aggravator as to the Beasley murder, but found the error harmless. Id. at 11, 13. The Court also ruled that the jury instruction on heinous, atrocious or cruel was unconstitutional under Espinosa v. Florida, 112 S. Ct. 2926 (1992), but also found this error harmless. Johnson, 608 So. 2d at 13. On August 1, 1994, Mr. Johnson timely filed his initial Rule 3.850 motion. On August 10, 1994, the State filed a motion to transfer the case from Alachua County back to Polk County. On September 22, 1994, the court granted the motion. On November 7, 1994, the trial court ordered the State to show cause why Mr. Johnson should not be afforded an evidentiary hearing. On November 22, 1994, the State filed its response. On December 12, 1994, the court dismissed Mr. Johnson s Rule 3.850 motion as legally insufficient and without prejudice. Mr. Johnson appealed to this Court. Mr. Johnson amended his post-conviction motion on May 17, 1995. The trial court dismissed the motion, but this Court reinstated the motion on August 29, 1995. On January 11, 1996, this Court ruled that venue was proper in the Tenth Judicial Circuit. 5

6 In March 1997, the trial court held an evidentiary hearing on some of Mr. Johnson s Rule 3.850 claims. The trial court denied the Rule 3.850 motion on March 19, 1997. Mr. Johnson appealed to this Court, which affirmed. Johnson v. State, 769 So. 2d 990 (Fla. 2000). On October 10, 2001, Mr. Johnson filed a petition for a writ of habeas corpus, raising issues of ineffective assistance of appellate counsel and fundamental error. This Court denied the petition on September 26, 2002. Johnson v. Moore, 837 So. 2d 343 (Fla. 2002). In light of Ring v. Arizona, 122 S. Ct. 2428 (2002), Mr. Johnson filed a second Rule 3.850 motion on February 7, 2003 (2PC-R. 157-83). The State filed a response to the motion on February 20, 2003 (2PC-R. 201-11). At a status conference on February 18, 2005, the court orally denied the motion and state a written order would be entered at a later date (2PC-R. 285). On March 11, 2005, the court entered a written order denying Rule 3.850 relief (2PC-R. 289-93). On April 7, 2005, Mr. Johnson timely filed his notice of appeal (2PC-R. 306). SUMMARY OF ARGUMENT Florida s capital sentencing procedure violates the Sixth and Fourteenth Amendments under Ring v. Arizona, 122 S. Ct. 2428 (2002). Florida s procedure is structurally defective because it does not require a unanimous jury to make the findings necessary to render a defendant death-eligible based upon proof beyond a reasonable doubt. Ring also reveals that numerous Sixth Amendment errors occurred in Mr. Johnson s penalty phase and that 6

7 Mr. Johnson s death sentence is invalid because the elements of the offense necessary to establish capital murder were not charged in the indictment. STANDARD OF REVIEW The claim presented in this appeal is a constitutional issue which involves mixed questions of law and fact and is reviewed on appeal de novo, giving deference only to the trial court s factfindings. Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999); State v. Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001). ARGUMENT FLORIDA'S CAPITAL SENTENCING STATUTE VIOLATES THE SIXTH AND FOURTEENTH AMENDMENTS. In Ring v. Arizona, 122 S. Ct. 2428 (2002), the Supreme Court held that the Sixth Amendment requires that aggravating factors necessary for imposition of the death penalty must be found beyond a reasonable doubt by a jury: [W]e overrule Walton [v. Arizona, 497 U.S. 639 (1990),] to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.... Because Arizona s enumerated aggravating factors operate as the functional equivalent of an element of a greater offense,... the Sixth Amendment requires that they be found by a jury. Ring, 122 S. Ct. at 2443 (citations omitted). In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held, If a State makes an increase in a defendant s authorized punishment contingent on the finding of a fact, that fact--no matter how the State labels it--must be found by a jury beyond a reasonable 7

8 doubt. 530 U.S. at 482-83. Ring recognized the category of capital murder in which any fact rendering a person eligible for a death sentence is an element of the offense. 122 S. Ct. at 2440, quoting Apprendi, 530 U.S. at 494 ( In effect, the required finding [of an aggravating circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury s guilty verdict ). Under Ring, the Florida capital sentencing scheme is unconstitutional: A Florida trial court no more has the assistance of a jury s findings of fact with regard to sentencing issues than does a trial judge in Arizona. Walton v. Arizona, 497 U.S. 639, 647-48 (1990). A. UNDER RING, THE FLORIDA STATUTE IS UNCONSTITUTIONAL. 1. In Florida, Death Is Not Authorized By A Verdict Of Guilt Of First-Degree Murder. Florida s capital sentencing scheme violates the jury trial guarantees of the Sixth and Fourteenth Amendments because it does not allow the jury to reach a verdict with respect to an aggravating fact [which] is an element of the aggravated crime punishable by death. Ring, 120 S. Ct. at 2441 (quoting Apprendi, 530 U.S. at 501 (Thomas, J., concurring)). Under Ring, the question is not whether death is an authorized punishment in a first-degree murder case, but whether the facts increasing punishment beyond the maximum authorized by a guilty verdict standing alone, 122 S. Ct. at 2441, are found by the judge or jury. If a State makes an increase in a defendant s authorized punishment contingent on the finding of a fact, that fact--no matter how the State labels it--must be found by a jury 8

9 beyond a reasonable doubt. Ring, 122 S. Ct. at 2439. A State may not avoid the Sixth Amendment by specif[ying] death or life imprisonment as the only sentencing options because the relevant inquiry is one not of form, but of effect. Id. at 2440 (quoting Apprendi, 530 U.S. at 494). If the effect of finding an aggravating circumstance expose[s] the defendant to a greater punishment than that authorized by the jury s guilty verdict, Apprendi, 530 U.S. at 494, the circumstance is an element which must be found by a jury beyond a reasonable doubt. Ring, 122 S. Ct. at 2440-41. Florida s death-sentencing process exposes Florida capital defendants to a penalty exceeding the maximum [they] would receive if punished according to the facts reflected in the jury verdict alone. Ring, 122 S. Ct. at 2440, quoting Apprendi, 530 U.S. at 483. This Court has explained what constitutes a capital crime and where that definition comes from: The aggravating circumstances of Fla. Stat. [sec.] 921.141(6), F.S.A., actually define those crimes--when read in conjunction with Fla. Stat. [secs.] 782.04(1) and 794.01(1), F.S.A.--to which the death penalty is applicable in the absence of mitigating circumstances. State v. Dixon, 283 So. 2d 1, 9 (1973). Florida s capital sentencing statute makes imposition of the death penalty contingent upon factual findings made after a verdict finding the defendant guilty of first-degree murder. Section 775.082 of the Florida Statutes provides that a person convicted of first-degree murder shall be sentenced to life imprisonment unless the proceedings held to determine sentence 9

10 according to the procedure set forth in [sec.] 921.141 result in findings by the court that such person shall be punished by death (emphasis added). 2. Florida s Statute Contains Three Death-Eligibility Steps. Section 921.141, Fla. Stat., requires three factual determinations before a defendant is eligible for a death sentence. The sentencer (1) must find the existence of at least one aggravating circumstance, (2) must find that sufficient aggravating circumstances exist to justify imposition of death, and (3) must find that there are insufficient mitigating circumstances to outweigh the aggravating circumstances. Section 921.141(2), (3), Fla. Stat. (emphasis added). If these findings are not made, the court shall impose sentence of life imprisonment in accordance with [sec.]775.082. Id. (emphasis added). The Florida penalty phase jury is instructed on these three initial steps but is not required to reach a verdict on any one of these three factual determinations required before a death sentence may be considered. Neither the sentencing statute, this Court s cases, nor the jury instructions in Mr. Johnson s case required the jurors to find that the State had proven any one aggravating circumstance, or had established sufficient aggravating circumstances, or had shown that there are insufficient mitigating circumstances to outweigh the aggravating circumstances. Under Ring, aggravating factors are elements of capital 10

11 murder. Under the Florida capital sentencing statute, the elements of capital murder are the three factual determinations the statute requires before a death sentence may be considered. The Missouri capital sentencing statute follows the same steps followed in the Florida statute. Compare Section 921.141(3), Fla. Stat., with Section 565.030.4(1), (2), (3), Mo. Revised Statutes (1994). The Missouri Supreme Court has explained that the first three steps of the Missouri procedure determine eligibility for a death sentence and therefore, under Ring, must be decided beyond a reasonable doubt by a jury: In the second, or "penalty" phase, the jury is required to be instructed to follow the four-step process set out in section 565.030.4: The trier shall assess and declare the punishment at life imprisonment without eligibility for probation, parole, or release except by act of the governor: (1) If the trier does not find beyond a reasonable doubt at least one of the statutory aggravating circumstances set out in subsection 2 of section 565.032; or (2) If the trier does not find that the evidence in aggravation of punishment, including but not limited to evidence supporting the statutory aggravating circumstances listed in subsection 2 of section 565.032, warrants imposing the death sentence; or (3) If the trier concludes that there is evidence in mitigation of punishment, including but not limited to evidence supporting the statutory mitigating circumstances listed in subsection 3 of section 565.032, which is sufficient to outweigh the evidence in aggravation of punishment found by the trier; or 11

12 (4) If the trier decides under all of the circumstances not to assess and declare the punishment at death. Id. Section 565.030.4 on its face requires that steps 1, 2, 3, and 4 be determined against defendant before a death sentence can be imposed. Id.; see Whitfield, 837 S.W.2d 503, 515 (Mo. banc 1992). Step 1. Step 1 requires the trier of fact to find the presence of one or more statutory aggravating factors set out in section 565.032.2. Both the State and Mr. Whitfield agree that this is a fact that normally must be found by the jury in order to impose a sentence of death. The State contends that steps 2, 3, and 4 merely call for the jury to give its subjective opinion as to whether the death penalty is appropriate, however, not to make findings as to whether the factual predicates for imposing the death penalty are present. It urges that the principles set out in Ring are not offended even if the judge rather than the jury determines those three steps. This Court disagrees. Step 2. Step 2 requires the trier of fact (whether jury or judge) to find that the evidence in aggravation of punishment, including but not limited to evidence supporting the statutory aggravating factors, warrants imposition of the death penalty. As noted, the State argues that this step merely calls for a subjective opinion by the trier of fact, not a finding. But, the State fails to note that this Court rejected this very argument in its opinion on Mr. Whitfield's appeal of his initial conviction, in which it remanded for the new trial at issue here. In that decision, this Court held that step 2 requires a "finding of fact by the jury, not a discretionary decision." Whitfield, 837 S.W.2d at 515. This holding is supported by the plain language of the statute. In order to fulfill its duty, the trier of fact is required to make a case-by-case factual determination based on all the aggravating facts the trier of fact finds are present in the case. This is necessarily a determination to be made on the facts of each case. Accordingly, under Ring, it is not permissible for a judge to make this factual 12

13 determination. The jury is required to determine whether the statutory and other aggravators shown by the evidence warrants the imposition of death.... Step 3. In step 3 the jury is required to determine whether the evidence in mitigation outweighs the evidence in aggravation found in steps 1 and 2. If it does, the defendant is not eligible for death, and the jury must return a sentence of life imprisonment. While the State once more argues that this merely calls for the jury to offer its subjective and discretionary opinion rather than to make a factual finding, this Court again disagrees. The analysis undertaken in three recent decisions by other state courts of last resort, interpreting similar statutes, is instructive. In Woldt v. People, 64 P.3d 256 (Colo. 2003), the Supreme Court of Colorado reversed the death sentences of two capital defendants after determining that Colorado's three-judge capital sentencing statute was unconstitutional in light of Ring. Colorado's death penalty statute, like Missouri's, requires the fact-finder to complete a four-step process before death may be imposed. First, at least one statutory aggravator must be found. Second, whether mitigating factors exist must be determined. Third, mitigating factors must not outweigh the aggravating factors. Finally, whether death is the appropriate punishment is considered. The Supreme Court of Colorado described the first three of these four steps as findings of fact that are "prerequisites to a finding by the three-judge panel that a defendant was eligible for death." Woldt, 64 P.3d at 265. It noted that states are sometimes grouped into "weighing states" that require the jury to weigh the aggravating circumstances against those in mitigation in arriving at their determination of punishment, and "non-weighing states." It explained that, while in steps 1, 2, and 3 the jury is permitted to consider and weigh aggravators and mitigators, and to that extent Colorado's process is like that used in weighing states, Colorado is a non-weighing state in that, in step 4, in which the jury decides whether to impose death or to give a life sentence, the jury is permitted to consider all of the evidence without being required to give special significance to the weight of 13

14 statutory aggravators or mitigators. Id. at 263-64. This last step thus "affords the sentencing body unlimited discretion to sentence the defendant to life imprisonment instead of death." Id. at 265. Because Colorado's death penalty statute required a three-judge panel to make the first three of these findings, the statute was declared unconstitutional. Id. at 266-67. Similarly, in Johnson v. State, 59 P.3d 450 (Nev. 2002), Nevada's Supreme Court considered the constitutionality of its capital sentencing scheme in light of Ring. Its sentencing scheme provides for a three-judge panel to determine punishment if the jury is unable to do so. Johnson noted that Nevada "statutory law requires two distinct findings to render a defendant death-eligible: 'the jury or the panel of judges may impose a sentence of death only if it finds at least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.'" Johnson, 59 P.3d at 460 (citation omitted). Johnson determined the requisite statutory finding that the mitigating circumstances are not sufficient to outweigh the aggravating circumstances is at least "in part a factual determination, not merely discretionary weighing." Id. at 460. It held that, as a result, the rule announced in Ring required a jury rather than a judge to determine the mitigating as well as the aggravating factor issues. Id. Finally, on remand from the United States Supreme Court, the Supreme Court of Arizona rejected the state's contention that the requirement of Arizona law -- that the court weigh mitigating circumstances against aggravating circumstances -- did not require a factual determination, stating: In both the superseded and current capital sentencing schemes, the legislature assigned to the same fact-finder responsibility for considering both aggravating and mitigating factors, as well as for determining whether the mitigating factors, when compared with the aggravators, call for leniency. Neither a judge, under the superseded statutes, nor the 14

15 jury, under the new statutes, can impose the death penalty unless that entity concludes that the mitigating factors are not sufficiently substantial to call for leniency. A.R.S. [sections] 13-703.E (Supp.2002) and 13-703.F (Supp.2001). The process involved in determining whether mitigating factors prohibit imposing the death penalty plays an important part in Arizona's capital sentencing scheme. Ring II, 65 P.3d at 943 (emphasis added). The Court continued: We will not speculate about how the State's proposal [to allow the judge to make these findings] would impact this essential process. Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 1451, 108 L.Ed.2d 725 (1990) ('In some situations, a state appellate court may conclude that peculiarities in a case make appellate...harmless error analysis extremely speculative or impossible.'); see also Johnson v. Nevada, 59 P.3d 450 (Nev. 2002) (as applied to Nevada law, Ring... requires [a] jury to weigh mitigating and aggravating factors under Nevada's statute requiring the fact-finder to further find whether mitigating circumstances are sufficient to outweigh the aggravating circumstances). Id. Accordingly, the Court held that, even were the presence of a statutory aggravator conceded or not contested, resentencing would be required unless the court found that the failure of the jury to make these factual findings was harmless on the particular facts of the case. Id. This was a necessary result of applying Ring's holding that "[c]apital defendants...are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Ring, 536 U.S. at 589. Missouri's steps 1, 2, and 3 are the equivalent of the first three factual determinations required under Colorado's death penalty statute, so that, as in Colorado, the jury is told to find whether there are 15

16 mitigating and aggravating circumstances and to weigh them to decide whether the defendant is eligible for the death penalty. These three steps are also similar to the aggravating and mitigating circumstance findings required under Nevada and Arizona law. As in those states, these three steps require factual findings that are prerequisites to the trier of fact's determination that a defendant is death-eligible. State v. Whitfield, 107 S.W.3d 253 (Mo. 2003) (footnote omitted). The three steps in Florida s statute also require factual findings that are prerequisites to the trier of fact s determination that a defendant is death-eligible. Step 1 in the Florida procedure requires determining whether at least one aggravating circumstance exists. As in Missouri, Colorado, Nevada and Arizona, this step involves a factual determination which is a prerequisite to rendering the defendant deatheligible. Step 2 in the Florida procedure requires determining whether sufficient aggravating circumstances exist to justify imposition of death. Missouri s Step 2 is indistinguishable, requiring a determination of whether the evidence of all aggravating circumstances warrants imposing the death sentence. This step is obviously not the ultimate step of determining whether death will or not be imposed because other steps remain. Rather, in Florida as well as Missouri, this step involves a factual determination which is a prerequisite to rendering a defendant death-eligible. Step 3 in the Florida procedure requires determining 16

17 whether there are insufficient mitigating circumstances to outweigh the aggravating circumstances. Missouri s and Colorado s Step 3, as well as Nevada s and Arizona s Step 2, are identical, requiring a determination of whether mitigating circumstances outweigh aggravating circumstances. Again, this step is not the ultimate determination of whether or not to impose death because an additional step remains. Rather, in Florida as well as these other states, this step involves a factual determination which is a prerequisite to rendering a defendant death-eligible. In Florida, as in Missouri and the other states discussed in Whitfield, the sentencer does not consider the ultimate question of whether or not to impose death until the eligibility steps are completed. After the first three steps, the Florida statute directs the jury to determine, [b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death. Section 921.141(2)(c), Fla. Stat. The structure of the statute clearly establishes that the steps which occur before this determination are necessary to make the defendant eligible for this ultimate determination, that is, to render the defendant death-eligible. 3. A Florida Jury s Role Does Not Satisfy Ring. Because Florida s death penalty statute makes imposition of a death sentence contingent upon these findings and gives sole responsibility for making these findings to the judge, it violates the Sixth Amendment. Florida law does provide for the jury to hear evidence and render an advisory sentence. Sec. 17

18 921.141(2), Fla. Stat. However, the jury s role does not satisfy the Sixth Amendment under Ring. Section 921.141(2) does not require a jury verdict, but an advisory sentence. A Florida penalty phase jury does not make factfindings. The Florida statute does not require a special verdict on each of the three eligibility steps or require the jury s vote to be unanimous regarding the existence of an aggravating circumstance, regarding whether sufficient aggravating circumstances exist, or regarding whether mitigating circumstances exist which outweigh the aggravating circumstances. The statute requires only a majority vote of the jury in support of its advisory sentence. Sec. 921.141(2), Fla. Stat. As to elements of an offense, this Court has recognized that a judge may not make factfindings on matters associated with the criminal episode because that would be an invasion of the jury s historical function. State v. Overfelt, 457 So. 2d 1385, 1387 (Fla. 1984). Under Fla. R. Crim. P. 3.440, a jury verdict on the elements of a criminal charge must be unanimous. Since jury unanimity has long been the practice in Florida, It is therefore settled that [i]n this state, the verdict of the jury must be unanimous and that any interference with this right denies the defendant a fair trial. Flanning v. State, 597 So. 2d 864, 867 (Fla. 3d DCA 1992), quoting Jones v. State, 92 So. 2d 261 (Fla. 1956). However, this Court has approved allowing the jury to recommend a death sentence based upon a simple majority vote. See, e.g., Thompson v. State, 648 So. 2d 18

19 692, 698 (Fla. 1994). The Court has also not required jury unanimity as to the existence of specific aggravating factors. Jones v. State, 569 So. 2d 1234, 1238 (Fla. 1990). Taken together, Ring and Florida law establish that the penalty phase jury s vote on the three factual determinations set forth in the statute is required to be unanimous. Two of the elements required to be established in order for Mr. Johnson to be sentenced to death were that sufficient aggravating circumstances exist to allow consideration of a death sentence and that mitigating circumstances sufficient to outweigh the aggravating circumstances did not exist. Sec. 921.141(3), Fla. Stat. Mr. Johnson s jury was not instructed that these elements must be proved beyond a reasonable doubt. Such an error can never be harmless: [T]he jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). When the jury has not been instructed on the reasonable doubt standard, there has been no jury verdict within the meaning of the Sixth Amendment, and therefore, [t]here is no object, so to speak, upon which harmless-error scrutiny can operate. Id. at 280. The language of Florida s capital sentencing statute, this Court s case law, and the Florida Rules of Criminal Procedure establish that the limited role of a Florida penalty phase jury does not satisfy the Sixth Amendment. The jury does not make fact findings, the jury does not return a verdict on the three factual determinations required by the statute before a death 19

20 sentence may be considered, the jury vote is not required to be unanimous, and the jury is not instructed on the reasonable doubt standard as to two of the three factual determinations required by the statute. Mr. Johnson s death sentence violates the Sixth Amendment. B. BOTTOSON V. MOORE AND KING V. MOORE DO NOT DISPOSE OF MR. JOHNSON S CLAIM. On October 24, 2002, this Court issued its decisions in Bottoson v. Moore, 833 So.2d 693 (Fla. 2002), and King v. Moore, 831 So.2d 143 (Fla. 2002), denying relief on Ring claims. The Court has repeatedly cited these two cases when denying Ring claims in subsequent cases, 3 as did the circuit court in Mr. Johnson s case (2PC-R. 292). 4 However, for a number of reasons, 3 Hodges v. State, 2003 WL 21402484 at *13 nn.8, 9 (Fla. June 19, 2003); Pace v. State, 2003 WL 21191876 at *13 (Fla. May 22, 2003); Jones v. State, 2003 WL 21025816 at *5 (Fla. May 8, 2003); Chandler v. State, 2003 WL 1883682 at n.4 (Fla. Apr. 17, 2003); Butler v. State, 2003 WL 1786712 (Fla. Apr. 3, 2003); Banks v. State, 2003 WL 1339041 at *4 (Fla. Mar. 20, 2003); Lawrence v. State, 2003 WL 1339010 at *8 (Fla. Mar. 20, 2003); Lugo v. State, 2003 WL 359291 at *28 n.79 (Fla. Feb. 20, 2003); Kormondy v. State, 2003 WL 297027 at *10 (Fla. Feb. 13, 2003); Jones v. State, 845 So. 2d 55 (Fla. 2003); Conahan v. State, 844 So. 2d 629, 642 n.9 (Fla. 2003); Spencer v. State, 842 So. 2d 52, 72 (Fla. 2003); Lucas v. State, 841 So. 2d 380, 389 (Fla. 2003); Anderson v. State, 841 So. 2d 390, 408-09 (Fla. 2003); Grim v. State, 841 So. 2d 455, 465 (Fla. 2003); Porter v. Crosby, 840 So. 2d 981, 986 (Fla. 2003); Doorbal v. State, 837 So. 2d 940, 963 (Fla. 2003); Fotopoulos v. State, 838 So. 2d 1122, 1136 (Fla. 2002); Bruno v. Moore, 838 So. 2d 485, 492 (Fla. 2002); Marquard v. State, 2003 WL 31600017 at *10 n.12 (Fla. Nov. 21, 2002); Chavez v. State, 832 So. 2d 730, 767 (Fla. 2002). 4 The circuit court cited Rivera v. State, 859 So. 2d 495 (Fla. 2003), and Guidinas v. State, 879 So. 2d 616 (Fla. 2004), both of which rely upon Bottoson and King in denying relief under Ring. Rivera, 859 So. 2d at 508; Guidinas, 879 So. 2d at 617. 20

21 Bottoson and King did not resolve Ring s application in Florida and were wrongly decided. In both cases, each justice wrote a separate opinion explaining his or her reasoning for denying relief. While a per curiam opinion announced the result in both cases, in neither case did a majority join the per curiam opinion or its reasoning. In both cases, four justices wrote separate opinions explaining that they did not join the per curiam opinion, but concur[red] in result only. Bottoson v. Moore, 833 So. 2d at 695; King v. Moore, 831 So. 2d at 145. The four opinions concurring in result only raised substantial concerns about the constitutionality of Florida s capital sentencing statute in light of Ring. 5 Although denying relief under Ring, the opinions in Bottoson and King do not dispose of Mr. Johnson s claim because there was no majority opinion and because four members of the Court found Florida s 5 Justice Shaw stated that the Florida death penalty statute violated Ring because the statute did not require unanimous jury findings of aggravating circumstances. Bottoson v. Moore, 833 So. 2d at 717-18. Justice Pariente said that under Ring, the Florida statute was flawed because Florida juries in capital cases do not do what Ring mandates. Bottoson v. Moore, 833 So. 2d at 725 (italics in original). Chief Justice Anstead explained, the provision for judicial findings of fact and the purely advisory role of the jury in capital sentencing in Florida falls short of the mandates announced in Ring and Apprendi for jury fact-finding. Bottoson v. Moore, 833 So. 2d at 706. Justice Lewis acknowledged that Ring has application to Florida s death penalty statute, writing that after Ring, a jury s life recommendation must be respected, and explained that the validity of jury instructions given in [Bottoson s] case should be addressed in light of [Bottoson s] facial attack upon Florida s death penalty scheme on the basis of the holding in Ring v. Arizona. Bottoson v. Moore, 833 So. 2d at 728, 733. 21

22 capital sentencing statute violated Ring. 6 Some members of the Court in Bottoson and King relied upon the existence of the prior violent felony aggravator to deny relief. See, e.g., Bottoson, 833 So. 2d at 718-19 (Shaw, J., concurring in result only); Bottoson, 833 So. 2d at 722 (Pariente, J., concurring in result only). Since these decisions, the Court has repeatedly relied upon the existence of the prior violent felony aggravator or contemporaneous felony convictions to deny Ring claims. 7 Mr. Johnson respectfully submits that this view is erroneous under Florida s capital sentencing scheme. First, Mr. Johnson contends that relying upon the existence of the prior violent felony aggravator or upon contemporaneous felony convictions to deny him the benefit of Ring is unconstitutional under the particulars of Florida s capital sentencing scheme. Rather, reliance upon the prior violent felony aggravator or upon contemporaneous felony convictions to establish eligibility rewrites the Florida statute. As explained above, the Florida statute requires three findings before a defendant is eligible for a death sentence: the sentencer (1) 6 In Rivera, this Court recognized that there was no single majority view expressed in Bottoson and King. Rivera, 859 So. 2d at 508. 7 See, e.g., Banks v. State, 2003 WL 1339041 at *4 (Fla. Mar. 20, 2003); Lugo v. State, 2003 WL 359291 at *28 n.79 (Fla. Feb. 20, 2003); Jones v. State, 2003 WL 297074 at *9 (Fla. Feb. 13, 2003); Grim v. State, 841 So. 2d 455, 465 (Fla. 2003); Doorbal v. State, 837 So. 2d 940, 963 (Fla. 2003). 22

23 must find the existence of at least one aggravating circumstance, (2) must find that sufficient aggravating circumstances exist to justify imposition of death, and (3) must find that there are insufficient mitigating circumstances to outweigh the aggravating circumstances. Section 921.141(3), Fla. Stat. Under this threestage process of establishing eligibility, the existence of a prior violent felony conviction or upon contemporaneous felony convictions does not satisfy Ring. The Missouri Supreme Court has explained the flaw inherent in relying upon the existence of a prior violent felony conviction as satisfying Ring. State v. Whitfield, 107 S.W.3d 253 (Mo. 2003). Although the Missouri Supreme Court s explanation is in the context of a harmless error analysis, the court s analysis shows that in a state with a multiple-step procedure for determining death-eligibility, the existence of a prior violent felony conviction does not end the inquiry. The court explained that while a prior conviction may satisfy the first step in the statutory procedure, it does not satisfy the second step, which requires determining whether the aggravating circumstances are sufficient to warrant death, or the third step, which requires determining whether the mitigating circumstances outweigh the aggravating circumstances. Although Mr. Johnson contends that Ring error is a structural defect not subject to harmless error analysis, he argues alternatively that, at most, the existence of a prior violent felony conviction or of contemporaneous felony convictions is relevant only to a harmless error analysis and 23

24 does not end the inquiry into Ring error. As the Missouri Supreme Court explained in Whitfield, while the existence of a prior violent felony conviction or contemporaneous felony convictions may render Ring error as to the first eligibility step harmless, existence of such convictions does not establish harmlessness as to the second and third eligibility steps. Second, reliance upon contemporaneous felony convictions as establishing eligibility for death constitutes automatic aggravation. Such a procedure allows one fact--committed during a felony--to be used both as an element of first-degree murder and as an element of capital first-degree murder. However, capital first-degree murder requires something more than firstdegree murder. Even when a defendant is convicted of contemporaneous felonies, a death sentence cannot be considered based upon that verdict alone. Use of the felony murder aggravator constitutes automatic aggravation which does not genuinely narrow the class of persons eligible for the death penalty and which does not reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. Lowenfield v. Phelps, 484 U.S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 877 (1983)). Reliance upon the contemporaneous felony conviction as establishing eligibility overlooks the structure of Florida s capital sentencing procedure, which requires that in order for a defendant to be eligible for a death sentence, the sentencer must find not only that an aggravating circumstance exists, but also that sufficient aggravating circumstances exist. In conformity 24

25 with the statutory language, Mr. Johnson s jury was instructed to determine whether sufficient aggravating circumstances were present that justified considering a sentence of death (R. 3607, 3609-10). The felony murder aggravator may not permissibly be used as a substitute for a jury determination that sufficient aggravating circumstances existed in Mr. Johnson s case. Allowing the felony murder aggravator to establish eligibility would mean that Florida has determined that a felonymurder conviction automatically renders a defendant death eligible, while a premeditated murder conviction does not. In Porter v. State, 564 So.2d 1060, 1064 (Fla. 1990), this Court addressed the cold, calculated and premeditated aggravating circumstance and held: To avoid arbitrary and capricious punishment, this aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. Zant v. Stephens, 462 U.S. 862 (1983)(footnote omitted). Since premeditation is already an element of capital murder in Florida, section 921.141(5)(I) must have a different meaning; otherwise, it would apply to every premeditated murder. Under the logic of Porter, the in the course of a felony aggravating circumstance cannot be mechanically applied to every felony-murder conviction. In Proffitt v. State, 510 So.2d 896, 898 (Fla. 1987), this Court specifically rejected the State s argument that the in the course of a felony aggravating circumstance could by itself justify the death penalty in a felony-murder case. In Proffitt, this Court cited Rembert v. 25

26 State, 445 So.2d 337 (Fla. 1984), and Menendez v. State, 368 So.2d 1278 (Fla. 1979). Allowing a contemporaneous felony conviction to establish eligibility would leave Florida s death penalty statute in violation of Furman v. Georgia, 408 U.S. 238 (1972). Every felony-murder conviction would automatically carry with it a finding of an underlying felony that constitutes an aggravating circumstance and death eligibility. That is precisely the overbroad death eligibility scheme that Furman threw out. Zant v. Stephens. Finally, the view that the existence of a prior violent felony or of contemporaneous felony convictions satisfies Ring relies upon Almendarez-Torres v. United States, 523 U.S. 224 (1998). Mr. Johnson contends that Almendarez-Torres does not survive Apprendi and Ring. See Apprendi, 530 U.S. at 489 & n.15; Id., 530 U.S. at 520-21 (Thomas, J., concurring). Further, Apprendi specifically restricted Almendarez-Torres to its unique facts. C. UNDER RING, MR. JOHNSON S DEATH SENTENCE IS UNCONSTITUTIONAL. Even if this Court were to redefine the jury s role under the Florida capital sentencing statute, Mr. Johnson s death sentence would violate the Sixth Amendment. Numerous errors involving comments to the jury and in the penalty phase jury instructions occurred in Mr. Johnson s case. Thus, in addition to the structural infirmity of the statute discussed in Section A, these errors vitiate any possible Sixth Amendment validity to 26