IN THE SUPREME COURT OF FLORIDA
CASE NO. 06-1055
MICHAEL A. GRIFFIN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY, STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
MARTIN J. MCCLAIN Florida Bar No. 0754773 McClain & McDermott, P.A. 141 N.E. 30th Street Wilton Manors, FL 33334 (305) 984-8344
COUNSEL FOR APPELLANT
1 PRELIMINARY STATEMENT
This proceeding involves the appeal of the circuit court’s denial of a postconviction motion without an evidentiary hearing. 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 appeal of denial of first Rule 3.851
motion;
“2PC-R.” -- record on appeal of denial of this second Rule
3.851 motion.
2 ii REQUEST FOR ORAL ARGUMENT
Mr. Griffin 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. Griffin, through counsel, accordingly urges that the Court permit oral argument.
iii TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ...... i
REQUEST FOR ORAL ARGUMENT ...... ii
TABLE OF CONTENTS ...... iii
TABLE OF AUTHORITIES ...... v
STATEMENT OF THE CASE AND FACTS...... 1
SUMMARY OF ARGUMENT ...... 7
STANDARD OF REVIEW ...... 9
ARGUMENT...... 10 ARGUMENT I MR. GRIFFIN SHOULD HAVE THE SAME OPPORTUNITY TO PRESENT HIS LETHAL INJECTION CLAIM AS WAS PROVIDED TO IAN LIGHTBOURNE, AND THE CIRCUIT COURT ERRED IN SUMMARILY DENYING MR. GRIFFIN’S CLAIM THAT NEWLY DISCOVERED EVIDENCE ESTABLISHES THAT EXECUTION BY LETHAL INJECTION IS CRUEL AND/OR UNUSUAL PUNISHMENT AND VIOLATES MR. GRIFFIN’S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND OF THE FLORIDA CONSTITUTION...... 10 A. IN LIGHT OF THE EVENTS OCCURRING DURING MR. DIAZ’S EXECUTION, MR. GRIFFIN SHOULD BE GRANTED AN EVIDENTIARY HEARING ON HIS LETHAL INJECTION CLAIM. 11 B. THE CIRCUIT COURT ERRED IN DENYING AN EVIDENTIARY HEARING ON MR. GRIFFIN’S LETHAL INJECTION CLAIM. 23 ARGUMENT II THE CIRCUIT COURT ERRED IN STRIKING MR. GRIFFIN’S CLAIM III AND IN DENYING MR. GRIFFIN’S MOTION TO AMEND WITH CLAIM III, WHICH ALLEGED THAT THE STATE WITHHELD IMPORTANT EVIDENCE DURING PRIOR PROCEEDINGS THAT IMPEACHED ITS CLAIM THAT THE SENTENCING ORDER IN MR. GRIFFIN’S CASE WAS NOT THE PRODUCT OF EX PARTE COMMUNICATION AND DID NOT VIOLATE MR. GRIFFIN’S RIGHT
iv TO AN INDEPENDENT SENTENCING ORDER PREPARED BY THE SENTENCING JUDGE...... 28 A. THE LOWER COURT ERRED IN STRIKING CLAIM III.... 29 B. THE LOWER COURT ERRED IN DENYING LEAVE TO AMEND WITH CLAIM III...... 30 C. THE CLAIM REQUIRES AN EVIDENTIARY HEARING...... 32 ARGUMENT III MR. GRIFFIN’S CONVICTION AND SENTENCE ARE UNCONSTITUTIONAL UNDER RING V. ARIZONA...... 38
CONCLUSION...... 51
CERTIFICATE OF SERVICE ...... 51
CERTIFICATE OF COMPLIANCE ...... 52
v TABLE OF AUTHORITIES
Page
Almendarez-Torres v. United States, 523 U.S. 224 (1998)...... 45
Apodaca v. Oregon, 406 U.S. 404 (1972)...... 48
Apprendi v. New Jersey, 530 U.S. 466 (2000) ...... 38, 45, 46, 48
Arbelaez v. State, 775 So. 2d 909 (Fla. 2000) ...... 25
Banks v. Dretke, 124 S. Ct. 1256 (2004)...... 32
Brady v. Maryland, 373 U.S. 83 (1963) ...... 29, 33
Card v. State, 652 So. 2d 344 (Fla. 1995) ...... 25, 32
Cardona v. State, 826 So.2d 968 (Fla. 2002) ...... 33
Chaky v. State, 651 So. 2d 1169 (Fla. 1995) ...... 44
Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532 (1985).... 23
Davis v. State, 703 So. 2d 1055 (Fla. 1998) ...... 51
Flanning v. State, 597 So. 2d 864 (Fla. 3rd DCA 1992) ...... 48
Gaskin v. State, 737 So. 2d 509 (Fla. 1999) ...... 9, 25, 32
Gorham v. State, 597 So.2d 782 (Fla. 1992) ...... 33
Griffin v. State, 2004 Fla. LEXIS 104 (Fla. 2004) ...... 2
Griffin v. State, 639 So. 2d 966 (Fla. 1994) ...... 1
Griffin v. State, 866 So. 2d 1 (Fla. 2003) ...... 2, 28
Griffin v. State, 894 So. 2d 970 (Fla. 2005) ...... 2, 30
Grossman v. State, 525 So. 2d 833 (Fla. 1988) ...... 50
Harris v. United States, 122 S. Ct. 2406 (2002) ...... 46, 47
Hoffman v. State, 800 So.2d 174 (Fla. 2001) ...... 33
vi In Re Kemmler, 136 U.S. 436 (1890)...... 23
Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998) ...... 29, 32
Johnson v. Louisiana, 406 U.S. 356 (1972) ...... 48
Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997) ...... 27
Jones v. United States, 526 U.S. 227 (1999) ...... 38
Jorgenson v. State, 714 So. 2d 423 (Fla. 1998) ...... 44
Kormondy v. State, 845 So. 2d 41 (Fla. 2003) ...... 43
Lightbourne v. Dugger, 549 So. 2d 1364 (Fla. 1989) ...... 9
Lightbourne v. McCollum, Fla. Sup. Ct. Case No. SC06-2391 (Fla. Dec. 14, 2006) ...... 10, 27
Lightbourne v. State, Fla. Sup. Ct. Case No. SC06-1241 (Fla. April 16, 2007) ...... 10, 11
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).... 23
Maharaj v. State, 684 So. 2d 726 (Fla. 1996) ...... 25, 32
Maharaj v. State, 778 So. 2d 944 (Fla. 2000) ...... 35
McConnell v. State, 102 P.3d 606 (Nev. 2004) ...... 42
McMillan v. Pennsylvania, 477 U.S. 79 (1986) ...... 46
Mills v. Moore, 786 So. 2d 532 (Fla. 2001) ...... 39
Mordenti v. State, 894 So. 2d 166 (Fla. 2004) ...... 36
Morton v. State, 789 So. 2d 324 (Fla. 2001) ...... 51
Patton v. State, 784 So. 2d 380 (Fla. 2000) ...... 25
Peede v. State, 748 So. 2d 253 (Fla. 1999) ...... 9
Porter v. State, 564 So. 2d 1060 (Fla. 1990) ...... 42
Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999) ...... 27
vii Ring v. Arizona, 122 S. Ct. 2428 (2002).... 7, 38, 39, 45, 47, 49
Roberts v. State, 840 So. 2d 962 (Fla. 2002) ...... 35
Rogers v. State, 782 So.2d 373 (Fla. 2001) ...... 33
Roman v. State, 528 So.2d 1169 (Fla. 1988) ...... 33
Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) ...... 40, 48
Sims v. State, 754 So. 2d 657 (Fla. 2000) ...... 7, 26, 27
State v. Dixon, 283 So. 2d 1 (Fla. 1973) ...... 46
State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001) ...... 9
State v. Gunsby, 670 So.2d 920 (Fla. 1996) ...... 33
State v. Hugins, 788 So.2d 238 (Fla. 2001) ...... 33
State v. Overfelt, 457 So. 2d 1385 (Fla. 1984) ...... 49
Stephens v. State, 748 So. 2d 1028 (Fla. 1999) ...... 9
Strickler v. Greene, 527 U.S. 263 (1999) ...... 33
Sullivan v. Louisiana, 508 U.S. 275 (1993) ...... 49, 50
Walton v. Arizona, 497 U.S. 639 (1990)...... 39, 50
Williams v. State, 438 So. 2d 781 (Fla. 1983) ...... 48
viii STATEMENT OF THE CASE AND FACTS
Mr. Griffin was indicted in the circuit court of the
Eleventh Judicial Circuit, Miami-Dade County, on one count of first degree murder, two counts of grand theft, aggravated assault, petit theft, and possession of a firearm by a convicted felon. These acts allegedly occurred on April 27, 1990. Mr.
Griffin's trial was conducted from January 31, 1991 to February
8, 1991. The jury returned guilty verdicts on February 8, 1991.
At the conclusion of the penalty phase, February 14, 1991, the jury recommended a sentence of death by a vote of 10-2 (R. 3836-
38). On March 7, 1991, the trial court sentenced Mr. Griffin to death (R. 3882).
On direct appeal, this Court affirmed Mr. Griffin's convictions and sentences. Griffin v. State, 639 So. 2d 966
(Fla. 1994), cert. denied, 115 S. Ct. 1317 (1995).1 Mr. Griffin
1In his direct appeal, Mr. Griffin argued that due process was violated by the introduction of evidence of uncharged criminal activity, that his statements were unconstitutionally introduced into evidence when the police had withheld necessary medical treatment until after a statement was provided, that his right to an unbiased penalty phase jury was violated by the introduction of prejudicial evidence during the guilt phase that was inadmissible at the penalty phase, that his right to introduce mitigating evidence was unconstitutionally restricted, that the sentencing judge had erroneously found that the homicide happened in the course of a burglary even though the burglary was technically and legally complete prior to the homicide, and that the sentencing failed to properly apply the ix filed a motion to vacate his judgment and sentence on March 18,
1997. He subsequently amended it. His second amended motion was filed on December 10, 1999. The circuit court granted a limited evidentiary hearing on September 15, 20, 21 and 22,
2000, and October 19 and 20, 2000. The trial court entered an order denying all relief on January 10, 2001. A Notice of
Appeal was filed on February 6, 2001.
On September 25, 2003, this Court issued an opinion affirming the denial of postconviction relief. Griffin v.
State, 866 So. 2d 1 (Fla. 2003). Thereafter, the Court revised its opinion and denied rehearing on January 29, 2004. Griffin v. State, 2004 Fla. LEXIS 104 (Fla. 2004).
Meanwhile, an attorney who previously represented Mr.
Griffin filed another motion to vacate on June 23, 2003. After the motion was dismissed, a Notice of Appeal was filed on August
2, 2004. On January 20, 2005, this Court dismissed Mr.
Griffin’s appeal because the attorney who filed the motion did not represent Mr. Griffin. The Court then stated: “Our decision is without prejudice to Griffin’s counsel refiling a proper motion for postconviction relief in the circuit court. Such motion would be nunc pro tunc to the original filing date.”
Griffin v. State, 894 So. 2d 970 (Fla. 2005). limiting construction of the cold, calculated and premeditated aggravating circumstance.
2 On February 21, 2005, attorney Daniel F. Daly filed a two- page Rule 3.851 motion adopting the June 23, 2003, motion to vacate (2PC-R. 39-40). The motion was not accompanied by a verification signed by Mr. Griffin. The State filed a response to this motion on February 25, 2005 (2PC-R. 42-103).
On February 28, 2005, attorney Martin J. McClain filed a
Rule 3.851 motion, raising three claims: (1) Mr. Griffin’s conviction and sentence are unconstitutional under Ring v.
Arizona; (2) newly discovered evidence establishes that execution by lethal injection is cruel and/or unusual punishment and violates Mr. Griffin’s rights under the Eighth and
Fourteenth Amendments of the United States Constitution and under the Florida Constitution; and (3) the State withheld important evidence during prior proceedings that impeached its claim that the sentencing order in Mr. Griffin’s case was not the product of ex parte communication and did not violate Mr.
Griffin’s right to an independent sentencing order prepared by the sentencing judge (2PC-R. 104-127). Attached to this motion was a verification signed by Mr. Griffin (2PC-R. 127).
Accompanying this motion was a motion for substitution of counsel stating that Mr. Griffin had contacted and retained Mr.
McClain as his counsel (2PC-R. 134-35). Attached to this motion was also a verification signed by Mr. Griffin (2PC-R. 137).
3 The State filed a motion to strike Mr. Griffin’s verified
Rule 3.851 motion (2PC-R. 138-50). The State contended that the
Rule 3.851 motion should be struck because it was not the motion which had been filed on June 23, 2003,2 and Mr. Griffin had not moved to amend the 2003 motion (2PC-R. 139-40). The State argued that the 2005 Rule 3.851 motion “does not attempt to refile the prior motion. Instead it seeks to amend the motion, inter alia, by adding a claim” (2PC-R. 139). Mr. Griffin responded that the 2005 Rule 3.851 motion was a motion, not an amended motion (2PC-R. 204-05).
The circuit court heard argument on the motion to strike on
March 30, 2005 (2PC-R. 392). The State argued that this Court’s order affirming the dismissal of Mr. Griffin’s 2003 Rule 3.851 motion said that Mr. Griffin “should be able to refile the motion that he filed in 2003 [nunc] pro tunc back to the time he filed it in 2003" (2PC-R. 397). The State reiterated its argument that Mr. Griffin was required to request leave to amend in order to file Claim III of the 2005 Rule 3.851 motion (2PC-R.
397-98). The State argued that this Court’s 2005 order allowing
Mr. Griffin to file a proper motion “did not give him leave to amend and add a new claim” (2PC-R. 399). Mr. Griffin’s counsel
2The motion filed in 2003 did not contain Claim III presented in the 2005 motion.
4 argued that this Court did not direct Mr. Griffin to refile the
2003 Rule 3.851 motion, but allowed Mr. Griffin to refile a proper motion (2PC-R. 402).
The court indicated it was going to grant the motion to strike without prejudice to Mr. Griffin to file a motion to amend (2PC-R. 407). Mr. Griffin’s counsel asked which Rule
3.851 motion Mr. Griffin was to request leave to amend, pointing out that the 2003 motion was not pending (2PC-R. 408). The court then struck Claim III of the 2005 Rule 3.851 motion indicating that Mr. Griffin could seek to amend the 2005 to reinstate the struck claim (2PC-R. 409). After argument on
Claims I and II, the court stated it would deny those claims, but would not enter an order for two weeks so that Mr. Griffin could file a motion for leave to amend (2PC-R. 416-17).
On April 8, 2005, Mr. Griffin filed a motion to amend the
Rule 3.851 motion (2PC-R. 242-46). The motion reiterated Mr.
Griffin’s exceptions to the court’s decision to strike Claim
III:
Certainly, Mr. Griffin took exception to this Court’s ruling. Given that the State successfully sought to dismiss the June 23rd motion because it was filed by someone who was not then Mr. Griffin’s counsel, it is unclear to the undersigned how that motion can be anything but a nullity. The attorney who filed it did not represent Mr. Griffin. The attorney no longer had access to Mr. Griffin’s files and records, and was not in a position to know what new evidence might or might not exist. In fact, the first claim in the June 23rd
5 motion repeatedly identified the defendant as Mr. Overton. Yet, under the State’s position and this Court’s ruling, individuals unconnected to a defendant in any way could file improper motions to vacate purportedly on the defendant’s behalf, but which could nonetheless alter the defendant’s right to present his constitutional claims in a properly filed motion to vacate, causing the defendant to have seek permission to raise claims that the stranger intentionally or unintentionally did not raise in the improper and stricken motion.
(2PC-R. 243-44 n.1). The motion to amend argued that Mr.
Griffin should be allowed to amend his Rule 3.851 motion with
Claim III:
5. Claim III was not included in the June 23rd motion in part because the motion was filed by an attorney who was not representing Mr. Griffin and who was thus not in a position to know of the undisclosed evidence and evaluate its significance to Mr. Griffin’s case, in part because the State had failed to timely disclose evidence favorable to Mr. Griffin in that it supported his constitutional claim and/or impeached the State’s opposition to the claim and in part because the claim is premised upon a case that had not yet been decided in 2003, Banks v. Dretke, 124 S. Ct. 1256 (2004). In Banks, the United States Supreme Court held that “[w]hen police or prosecutors conceal significant exculpatory or impeaching material in the State’s possession, it is ordinarily incumbent on the State to set the record straight.” Banks v. Dretke, 124 S. Ct. at 1263. Thus, a rule “declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.” Id. at 1275. 6. Under Johnson v. Butterworth, 713 So. 2d 985, 987 (Fla. 1998), the State has a duty in post- conviction proceedings to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963). Yet at the evidentiary hearing in 2000, the State presented the testimony of Assistant State
6 Attorney Penny Brill[3] regarding the document found in the state attorney file that was used by the sentencing judge for his sentencing order findings. Ms. Brill testified that she was instructed by someone, she did not recall who, to prepare the “interoffice memorandum” found in the state attorney file. After preparing the memorandum, she claimed that she provided it to the judge, but also shared its existence with Mr. Griffin’s defense attorney. However, the State was in possession of evidence impeaching Ms. Brill’s testimony that it did not share with either Mr. Griffin nor this Court and thus was not heard by the trier of fact for consideration while deliberating on Mr. Griffin’s claim of entitlement to collateral relief.
3Ms. Brill is a prosecutor with the State Attorney’s Office assigned to this case. She attended the case management hearing on March 30, 2005.
7 (2PC-R. 244-45). The circuit court denied the motion to amend, stating: “Penny Brill testified at the evidentiary hearing in this case. Defendant does not specifically allege what information is newly discovered or why it could not have been previously discovered” (2PC-R. 440).
On July 20, 2006, the circuit court denied the Rule 3.851 motion (2PC-R. 442-46). As to Claim I, the court ruled that this Court had held that Florida’s death penalty scheme was not unconstitutional under Ring v. Arizona, 122 S. Ct. 2428 (2002)
(2PC-R. 444-45). As to Claim II, the court ruled that the claim did not identify which executions were botched, the claim did not identify admissible evidence, and this Court has held lethal injection to be constitutional in Sims v. State, 754 So. 2d 657
(Fla. 2000) (2PC-R. 446). Mr. Griffin filed a notice of appeal
(2PC-R. 460-61).
After Mr. Griffin’s appeal was pending in this Court, Angel
Diaz was executed by lethal injection. In light of problems with that execution and the investigation into it, on March 28,
2007, Mr. Griffin filed a motion to relinquish jurisdiction to the circuit court in order to allow him to present lethal injection claims arising from the Diaz execution. Within that motion to relinquish, Mr. Griffin set forth factual allegations appearing in pleadings filed with this Court in Lightbourne v.
8 McCollum, Fla. Sup. Ct. Case No. SC06-2391. Additional factual allegations were set forth based upon media reports concerning the Diaz execution and the subsequent investigation into that that execution. On May 18, 2007, this Court denied the motion to relinquish “without prejudice.”
SUMMARY OF ARGUMENT
1. Mr. Griffin’s Rule 3.851 motion presented a claim that execution by lethal injection violates the Florida and United
States Constitutions. While Mr. Griffin’s Rule 3.851 proceedings were on appeal, the State executed Angel Diaz. In light of events occurring during Mr. Diaz’s execution, this
Court relinquished jurisdiction in Lightbourne v. McCollum in order for Mr. Lightbourne to raise issues regarding lethal injection in the circuit court. Mr. Lightbourne had raised a lethal injection claim before Mr. Diaz’s execution, just as Mr.
Griffin had. Mr. Griffin should receive the same opportunity to pursue his claim as was given to Mr. Lightbourne.
Additionally, the circuit court erred in summarily denying the lethal injection claim presented in Mr. Griffin’s Rule 3.851 motion. The claim identified specific new information indicating that execution by lethal injection was cruel and/or unusual punishment. This Court should remand for an evidentiary hearing.
9 2. The circuit court erred in striking Claim III of Mr.
Griffin’s Rule 3.851 motion and in not allowing Mr. Griffin to amend the motion with Claim III. The State argued that Mr.
Griffin was required to refile the identical motion filed in
2003 by an attorney who did not represent Mr. Griffin. The circuit court gave no reason for striking Claim III and its decision has no legal basis. Mr. Griffin’s motion to amend fulfilled the requirements of Rule 3.851(f)(4), and the circuit court abused its discretion in denying the motion to amend.
Claim III requires an evidentiary hearing.
3. Mr. Griffin’s death sentence violates Ring v. Arizona.
STANDARD OF REVIEW
The claims presented in this appeal are constitutional issues involving mixed questions of law and fact and are reviewed 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).
The lower court denied an evidentiary hearing, and therefore the facts presented in this appeal must be taken as true. Peede v.
State, 748 So. 2d 253, 257 (Fla. 1999); Gaskin v. State, 737 So.
2d 509, 516 (Fla. 1999); Lightbourne v. Dugger, 549 So. 2d 1364
(Fla. 1989).
10 ARGUMENT
ARGUMENT I MR. GRIFFIN SHOULD HAVE THE SAME OPPORTUNITY TO PRESENT HIS LETHAL INJECTION CLAIM AS WAS PROVIDED TO IAN LIGHTBOURNE, AND THE CIRCUIT COURT ERRED IN SUMMARILY DENYING MR. GRIFFIN’S CLAIM THAT NEWLY DISCOVERED EVIDENCE ESTABLISHES THAT EXECUTION BY LETHAL INJECTION IS CRUEL AND/OR UNUSUAL PUNISHMENT AND VIOLATES MR. GRIFFIN’S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND OF THE FLORIDA CONSTITUTION.
Claim II of Mr. Griffin’s Rule 3.851 motion alleged that new evidence showed execution by lethal injection was cruel and/or unusual punishment (2PC-R. 118-20). After Mr. Griffin’s appeal of the denial of that motion was initiated, the State of
Florida carried out the execution of Angel Diaz on December 13,
2006. In light of events occurring during Mr. Diaz’s execution, this Court relinquished jurisdiction in Lightbourne v. McCollum,
Fla. Sup. Ct. Case No. SC06-2391 (Fla. Dec. 14, 2006), in order for the circuit court to address issues regarding lethal injection.
Before Mr. Diaz’s execution, Mr. Lightbourne had raised a
Rule 3.851 claim challenging the constitutionality of execution by lethal injection and that claim was on appeal in this Court.
Lightbourne v. State, Fla. Sup. Ct. Case No. SC06-1241 (Fla.
April 16, 2007). This Court affirmed the trial court’s summary denial of Mr. Lightbourne’s pre-Diaz lethal injection claim, but
11 stated that Mr. Lightbourne should be allowed to proceed with the proceedings ordered in Lightbourne v. McCollum:
[A]s a result of Angel Diaz’s execution by lethal injection, a series of events occurred that the trial court could not have considered in denying Lightbourne’s motion. The impact of those events on the issue of the constitutionality of Florida’s lethal injection procedures is currently being litigated in the circuit court pursuant to this Court’s relinquishment order in Lightbourne v. McCollum, SC06- 2391. Accordingly, we conclude that the better course is to allow that case to proceed, in which Lightbourne has reasserted his public records request and in which an evidentiary hearing will be held in May 2007.
Lightbourne v. State, Fla. Sup. Ct. Case No. SC06-1241 (Fla.
April 16, 2007).
At the time of Mr. Diaz’s execution, Mr. Griffin’s case was in exactly the same procedural posture as Mr. Lightbourne’s case. Due process demands that Mr. Griffin be afforded the same opportunity extended to Mr. Lightbourne, to pursue his lethal injection claim in light of the events occurring during Mr.
Diaz’s execution.4
4Additionally, the litigation in Lightbourne v. McCollum was initiated by an all writs petition filed by Mr. Lightbourne and other death row prisoners. On February 9, 2007, this Court ordered that other than Mr. Lightbourne, all of the petitioners’ claims were dismissed. Lightbourne v. McCollum, Fla. Sup. Ct. Case No. SC06-2391 (Fla. Feb. 9, 2007). However, the Court stated that the dismissal was without prejudice to the other petitioners “filing any claim which they may have in the appropriate court for that individual petitioner.”
12 A. IN LIGHT OF THE EVENTS OCCURRING DURING MR. DIAZ’S EXECUTION, MR. GRIFFIN SHOULD BE GRANTED AN EVIDENTIARY HEARING ON HIS LETHAL INJECTION CLAIM.
Angel Diaz was executed by lethal injection on December 13,
2006. The execution was carried out under a lethal injection protocol adopted in secret on August 16, 2006. Public knowledge of this new protocol did not occur until counsel for A.D.
Rutherford learned on October 17, 2006, of the protocol on the eve of Mr. Rutherford’s execution. Mr. Diaz’s execution was the third one occurring after the adoption of the new protocol was made public.
Neal Dupree witnessed the execution of Mr. Diaz and has described it in an affidavit as follows:
1. My name is Neal A. Dupree, and I have been a licensed Florida attorney since 1980. I currently serve as the Capital Collateral Regional Counsel for South Florida, and I have held that position since August, 1998.
2. During my tenure as Capital Collateral Regional Counsel-South (CCRC-South), my office has continually represented Angel Diaz during his post- conviction appeals. It was in my capacity as CCRC- South that I witnessed the execution of Mr. Diaz at Florida State Prison on December 13, 2006.
3. The curtains to the execution chamber were opened at 6:00 p.m. From my seat in the front row of the observation room. I was located approximately six (6) to seven (7) feet from Mr. Diaz. Initially, I observed Mr. Diaz laying on a gurney covered by a white sheet. He was strapped to the gurney, and his right arm was held in place by a leather strap. Additionally, Mr. Diaz had some type of tape or gauze holding his right hand in place, and an intravenous
13 needle had been placed in his right arm where his elbow would bend. There appeared to be two separate lines that ran beneath the gurney hooking into the intravenous line, and those two lines traveled into a prepared space in the wall behind the gurney.
4. Mr. Diaz was asked if he had any last words, and he was permitted to give a brief speech in Spanish. Having met Mr. Diaz before, it appeared to me that he was sedated in some manner, as his speech was slower and somewhat slurred.
5. Within a few minutes, Mr. Diaz became agitated, and it appeared to me that he was speaking to the members of the Department of Corrections staff. They did not appear to respond to him and I was unable to hear his part of the conversation because the intercom between the execution chamber and the observation room had been turned off. During the time Mr. Diaz appeared to be speaking, it was my observation that he was in pain. His face was contorted, and he grimaced on several occasions. His Adams Apple bobbed up and down continually, and his jaw was clenched.
6. I could observe some type of fluid flowing through the intravenous tube, and Mr. Diaz head rolled to the right. A strap had been placed across his forehead, and a member of the DOC staff held the strap. I observed Mr. Diaz' right eye to close, but his left eye remained open. His mouth opened, and Mr. Diaz appeared to be gasping for air for at least 10-12 minutes. It was apparent that the complete drug cycle had been given to Mr. Diaz, however, on several occasions over the next twenty minutes I observed movement from Mr. Diaz, and he continued to gasp heavily for air.
7. Approximately twenty minutes into the procedure, I observed two members of the DOC staff, one large black male, and a slightly smaller white male have several conversations into two separate phones. The black male had been on one phone since the initiation of the procedure, and I observed him hand that phone to the white male two times. After speaking into the first phone, the white male picked up a
14 second phone, and had another conversation. It was apparent that something was wrong, and it was my observation that the other DOC staff members in the room looked uncomfortable at that time.
8. After a total of 25-30 minutes, Mr. Diaz' breathing appeared to get shallower. His face became slack, and his skin had a grayish pallor. During the last 5-6 minutes, both of his eyes opened and his Adam's apple slowly stopped bobbing.
9. I next observed a person wearing a purple suit (somewhat like a beekeepers outfit) enter the room. He flashed a light into the opened eyes of Mr. Diaz, and then checked his heart rate. That person left the room, and another person similarly garbed entered the room. He also checked Mr. Diaz' eyes and his heart rate. Mr. Diaz was then pronounced deceased by DOC personnel at 6:36 p.m. The time from when Mr. Diaz finished speaking, until the time he was pronounced dead was a span of 34 minutes.
Affidavit of Neal Dupree.
Newspaper accounts of the execution described it in terms similar to Mr. Dupree’s account:
[Mr. Diaz] was executed by lethal injection Wednesday, grimacing in pain before dying 34 minutes after receiving the first dose of chemicals.
Ron Word, “Man Executed for Miami bar slaying takes 34 minutes to die,” Gainesville Sun, December 13, 2006 (emphasis added).
He appeared to move for 24 minutes after the first injection. His eyes were open, his mouth opened and closed and his chest rose and fell.
The Associated Press, “Connecticut Escapee Executed in Florida,”
The Hartford Courant, December 13, 2006.
What happened to him next looked agonizing. Grimacing, Diaz took 34 minutes to die from the drugs
15 pumped through him. At times he seemed to be squinting and at other times he appeared to be flexing his jaw.
Phil Long and Marc Caputo, “Lethal injection takes 34 minutes to kill inmate,” Miami Herald, December 14, 2006.
Angel Diaz winced, his body shuddered and he remained alive for 34 minutes, nearly three times as long as the last two executions. Department of Corrections officials said they had to take the rare step of giving Diaz a second dose of drugs to kill him. * * * Twenty-six minutes into the procedure, Diaz’s body suddenly jolted. * * * Corrections officials acknowledged that 34 minutes was an unusually long time but said no records are kept that would tell if it’s the longest ever in state history. They were not sure how many other times a second dose was needed. Gretl Plessinger, a DOC spokesperson, said it’s unknown at what times the first and second doses were given because those records are not kept.
Chris Tisch and Curtis Krueger, Executed Man Takes 34 Minutes To
Die, St. Petersburg Times, December 14, 2006.
Immediately following the execution, a representative of the Department of Corrections (DOC hereinafter) stated:
He had liver disease, which required them to give him a second dose of the lethal chemicals. It was not unanticipated. The metabolism of the drugs to the liver is slowed.
The Associated Press, December 13, 2006 (emphasis added).
Shortly thereafter, Governor Bush affirmed the representations of the Department of Corrections:
16 As announced earlier this evening by the Department, a preexisting medical condition of the inmate was the reason tonight’s procedure took longer than recent procedures carried out this year.
Ron Word, “Execution of Fla. inmate takes 34 min.,” The Times-
Picayune, December 13, 2006.
On December 15, 2006, it was publicly revealed that the
“liver” story spun by the Department of Corrections to explain the 3 minutes necessary to kill Mr. Diaz was without any factual basis. The medical examiner who performed an autopsy of Mr.
Diaz’s body publicly reported his preliminary findings at a press conference. During the press conference, the medical examiner debunked the “liver” story. As explained in newspaper accounts, the medical examiner found a different cause for the botched execution:
The doctor who performed Diaz's autopsy refused to say if he thought Diaz was in pain. Alachua County Medical Examiner William F. Hamilton said the needles in both arms punctured straight through his veins, dissipating the lethal chemicals.
“The main problem with the conduct of this execution procedure was that the fluids to be injected were not going into a vein, but were going into small tissues in the arm,” Hamilton said. His examination found “evidence of chemical damage” at the injection wound for six inches above and below the right elbow, and nearly the same pattern around the left elbow.
Gary Fineout and Marc Caputo, “Governor Bush Orders Hold on
Executions,” Miami Herald, December 16, 2006 (emphasis added).
17 As a result of the medical examiner’s findings, the
Governor suspended all executions in Florida:
Gov. Jeb Bush has once again suspended all executions in Florida after an autopsy showed needles tore through an inmate's veins Wednesday night, causing chemicals to severely burn his flesh.
Angel Diaz took 34 minutes to die, an unusually long time, because the drugs weren't circulating in his blood.
Corrections officials initially attributed Diaz’s slow death to liver disease, but the preliminary autopsy results showed no outward signs of damage to the organ.
The problems prompted Bush to form a four-person team to investigate the execution. On Friday, Bush ordered the assembly of a second team to study whether the lethal injection protocols used in Florida should be revised.
Chris Tisch, “Governor Bush Halts Executions,” St. Petersburg
Times, December 16, 2006 (emphasis added). The Governor further ordered the creation of a commission:
The governor, along with stopping the signing of death warrants, created a commission Friday that will examine the state's lethal injection process, with a final report by March 1.
The timing of that report could allow the Legislature to carry out any recommended changes.
John Kennedy and Maya Bell, “Bush Suspends Death Penalty Amid
Claims 34-minute Execution Was Botched,” South Florida Sun-
Sentinel, December 16, 2006 (emphasis added).
18 In the wake of the botched Diaz execution, the Department of Corrections conducted its own internal investigation.
According to a report dated December 20, 2006, this internal investigation indicated that the protocol was not followed. Mr.
Diaz was neither rendered unconscious nor paralyzed by the first two drugs of the three drug protocol.
Newspaper accounts of the January 29th Lethal Injection
Commission meeting indicate that Florida State Prison Warden
Randell Bryant told the commission that “Angel Nieves Diaz appeared to be straining to see a clock, not grimacing in pain as other witnesses have said.” Phil Davis, Execution Was
Painless, Warden Testifies, Miami Herald, January 30, 2007.
“Bryant stood about three feet away that evening and said Diaz was merely straining to look at a clock in the execution chamber.” Chris Tisch, Execution Put Under a Microscope, St.
Petersburg Times, January 30, 2007. Accepting his statements as true (despite the fact that much of it conflicted with other witnesses), Warden Bryant’s statements demonstrate the failure of the protocol. Of course, the administration of sodium pentothal, the first drug of the three drugs used in the course of lethal injection procedure, serves the same purpose as the administration of an anesthetic prior to surgery, i.e. to render
19 the patient unconscious and unable to feel the pain of the surgery. See Sims v. State, 754 So. 2d 657 (Fla. 2000).5
The Lethal Injection Commission was told that the DOC execution team had difficulty inserting the IV’s into Mr. Diaz’s arms. It took two to three times longer than usual to push drugs through an IV line in Diaz’s left arm. The execution team then switched to an IV line in Diaz’s right arm in order to finish injecting the three drug cocktail. The execution team then decided to simultaneously use the first line for a second round of drugs. Dr. David Varlotta, a member of the Commission,
“said he couldn’t explain the medical staff’s decision to return to the problematic line. ‘It’s not likely it would fix itself,’ he said.” Nathan Crabbe, “Expert says IV mistakes were made in execution,” Gainesville Sun, February 6, 2007. Dr. Denis Clark, an Orlando specialist in vein therapy, advised the Commission that from her review of the DOC internal investigation, “the medical staff should have recognized that problems injecting the drugs meant the first IV line was likely dislodged. ‘If it’s in the proper place, it shouldn’t require a lot of force,’ she
5In the field of medicine and in fact in the record in Sims, it is and was a given that the administration of potassium chloride is painful, just as a scalpel cutting open an abdomen is painful. The whole purpose of the administration of sodium pentothal is to render the condemned unconscious and unable to feel the known pain that results from the passage of potassium chloride through the bloodstream.
20 said.” Nathan Crabbe, “Expert says IV mistakes were made in execution,” Gainesville Sun, February 6, 2007.
When the lead executioner in the Diaz execution appeared before the Commission, he advised “that the team had to empty 14 syringes of chemicals and saline solution into Angel Diaz. The executioner told [the commission] that they pumped the cocktail into both of Diaz’s arms. He surprised some observers by saying he had gone to the second arm in other executions as well.”
Chris Tisch, “Executioner’s words disturb panel,” St. Petersburg
Times, February 10, 2007. The execution also reported that he
“lacks medical qualifications and last received training to administer lethal chemicals seven years ago.” Nathan Crabbe,
“Executioner admits lack of training,” Gainesville Sun, February
10, 2007. However, according to the executioner’s opinion,
“when the execution begins the executioner is in charge.” The nurse who inserted the IV’s also appeared. She advised the
Commission that she had difficulty inserting one of the IV lines. “The nurse got the needle into the vein on a second attempt, but officials didn’t tell the warden of the problem.”
Chris Tisch, “Executioner’s words disturb panel,” St. Petersburg
Times, February 10, 2007.
The Commission heard from Dr. William Hamilton, the medical examiner who performed the autopsy on Diaz’s body. According to
21 Hamilton the IV needles inserted into Diaz’s arms tore through his veins and sprayed the three drug cocktail into his flesh.
“None of the materials went to the right place.” Chris Tisch,
“Doctor: Execution flawed at start,” St. Petersburg Times,
February 13, 2007. As a result, footlong blisters were found on both of Diaz’s arms during the autopsy. Dr. Hamilton “said one of the chemicals used in the process is known for its caustic effect.” Nathan Crabbe, “Experts testify on botched execution,”
Gainesville Sun, February 13, 2007.
The Commission heard from the Secretary of the Department of Corrections, James McDonough. According to Secretary
McDonough he decided to create the current written protocol that was adopted August 16, 2006, because previously “execution procedures were handed down by word of mouth before he became secretary a year ago.” Chris Tisch, “Claims of faulty injection disputed,” St. Petersburg Times, February 20, 2007. This revelation contradicted what the State had told this Court when the August 16, 2006, became public on October 17, 2006. The
State then advised that a written protocol that had been adopted in 2000 and approved in Sims had not been altered, that the
August 16th protocol made no substantive changes.
After hearing from the witnesses, the Commission “found that execution team members made a series of errors that strayed
22 from state protocols. But the Commission also decided that the protocols need to offer more detailed instructions on how to identify problems and cope with them.” Chris Tisch, “Review of lethal injection complete: A panel says the state can do better and will submit suggestions to Gov. Crist this week,” St.
Petersburg Times, February 25, 2007. Having reviewed the Diaz execution and what went awry, the former Secretary of the
Department of Corrections, Harry K. Singletary, who was a member of the Commission said, “We know for sure that this is going to happen again.” Nathan Crabbe, “Lethal injection changes proposed,” Gainesville Sun, February 25, 2007.
Florida’s procedure for carrying out executions carries a substantial risk of pain. Certainly, state officials are now aware of these risks. Experts appeared before the Commission and outlined the deficiencies in the protocol employed by the
State of Florida that create grave risk of the infliction of unnecessary pain. These deficiencies continue to exist and have not been eliminated. As the former Secretary of the Department of Corrections, Harry K. Singletary, stated, “We know for sure that this is going to happen again.”
In light of these developments, the State agreed that an evidentiary hearing was warranted on an Eighth Amendment challenge to Florida’s method of execution in State v.
23 Lightbourne, Case No. 81-170-CF-A-01 (5th Jud. Cir. Marion
County). The evidentiary hearing began May 18, 2007.
Despite knowing of the challenge to Florida’s method of execution that was made by Mr. Griffin, the State has not provided Mr. Griffin information or evidence in its possession that is favorable to Mr. Griffin’s pending claim. This Court has held that the State and its representatives are under a continuing due process obligation during post conviction proceedings to disclose favorable evidence to the defendant.
Johnson v. Butterworth, 713 So. 2d 985, 987 (Fla. 1998). Thus, the prosecutor’s duty “to learn of favorable evidence known to others acting on the government’s behalf” continues during post conviction proceedings. This is particularly true in instances where the favorable evidence is supportive of a specific claim for relief made by the defendant in post conviction proceedings.
Here, the State’s inaction and silence constitutes a constitutional deprivation that Mr. Griffin is entitled to pursue in circuit court.
Mr. Griffin seeks the opportunity to present his claims and evidence supporting them arising from the Diaz execution and the subsequent developments. A reasonable opportunity to be heard is guaranteed by due process. Cleveland Bd. Of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985) (“essential principle of
24 due process is that a deprivation of life...be preceded by notice and opportunity for hearing appropriate to the nature of the case”). Due process demands that Mr. Griffin must be given the opportunity to be heard that has been afforded Mr.
Lightbourne.
B. THE CIRCUIT COURT ERRED IN DENYING AN EVIDENTIARY HEARING ON MR. GRIFFIN’S LETHAL INJECTION CLAIM.
Mr. Griffin’s Rule 3.851 motion alleged that Florida began using lethal injection in 2000 and that new evidence exists showing that the protocol followed in Florida during a lethal injection does not comport with the ban on cruel and unusual punishment.
The Rule 3.851 motion cited a 2002 report published by the
National Coalition to Abolish the Death Penalty (NCADP), entitled “Drug Companies and Their Role in Aiding Executions”
(2PC-R. 59-78). The report noted that lethal injection is subject to high rates of error with many “botched” executions resulting. Mr. Griffin alleged that the report demonstrated that lethal injection fails to guarantee painless or instant death (2PC-R. 119). See In Re Kemmler, 136 U.S. 436, 443
(1890)(holding that judicial electrocution must result in instantaneous death to satisfy constitutional standards);
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 474
(1947)(same).
25 Mr. Griffin further alleged that the sequence and quantities of the three drugs used during a lethal injection in
Florida do not guarantee a painless or instant death (2PC-R.
119). In support of this allegation, the Rule 3.851 motion stated:
A growing number of medical and legal experts have warned that the chemical pancuronium bromide, a commonly used lethal injection drug, could leave a wide-awake inmate unable to speak or cry out as he slowly suffocates. Advances in medicine have found that the drug, used by executioners to paralyze the skeletal muscles while not affecting the body's brain or nerves, can mask severe suffering. While the American Veterinary Medical Association condemns the use of pancuronium bromide in the euthanasia process because "the animal may perceive pain and distress after it is immobilized," the majority of states that maintain the death penalty continue to incorporate it as the second of three drugs used to execute those on death row. When questioned about what death row inmates would feel if the first short-term anesthesia drug did not function properly and the remaining two drugs, including pancuronium bromide, were administered, Dr. Mark J.S. Heath of Columbia University stated, "It would basically deliver the maximum amount of pain the veins can deliver, which is a lot." (New York Times, October 7, 2003). However, the Florida Department of Corrections has not disclosed the precise details of its protocol and the results of autopsies of those executed using lethal injections in which the chemical levels have been measured. Such information must be disclosed in order to obtain specific expert opinion regarding Florida use of pancuronium bromide during lethal injections.
(2PC-R. 119-20).
At the conclusion of Claim II, Mr. Griffin requested that the circuit court order the Florida Department of Corrections to
26 fully disclose all documents regarding its protocol during lethal injections and the full results of autopsies conducted after a lethal injection (2PC-R. 120). Mr. Griffin also requested an evidentiary hearing on this claim (Id.).
The circuit court summarily denied the claim, ruling that the claim did not identify which executions were botched, the claim did not identify admissible evidence, and this Court has held lethal injection to be constitutional in Sims v. State, 754
So. 2d 657 (Fla. 2000) (2PC-R. 446). The circuit court erred.
"Under rule 3.850, a postconviction defendant is entitled to an evidentiary hearing unless the motion and record conclusively show that the defendant is entitled to no relief."
Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999). Accord Patton v. State, 784 So. 2d 380, 386 (Fla. 2000); Arbelaez v. State,
775 So. 2d 909, 914-15 (Fla. 2000). The rule is the same for a successive postconviction motion, where allegations of previous unavailability of new facts, as well as diligence of the movant, warrant evidentiary development if disputed or if a procedural bar does not "appear[] on the face of the pleadings." Card v.
State, 652 So. 2d 344, 346 (Fla. 1995). Factual allegations as to the merits of a constitutional claim as well as to issues of diligence must be accepted as true, and an evidentiary hearing
27 is warranted if the claims involve "disputed issues of fact."
Maharaj v. State, 684 So. 2d 726, 728 (Fla. 1996).
The circuit court’s summary denial of Mr. Griffin’s lethal injection claim is contrary to these standards. The claim specifically identified new evidence such as the 2002 NCADP report and summarized what that new evidence showed about the constitutionality of lethal injection. The claim specifically alleged that new evidence existed regarding the sequence and quantities of the three drugs used during a lethal injection in
Florida. The claim specifically alleged new evidence indicating that the use of pancuronium bromide creates a significant risk of pain. Further, Mr. Griffin specifically requested the circuit court to order the Department of Corrections to disclose documents regarding its lethal injection protocol and the autopsies of prisoners executed by lethal injection.
Rather than accepting these allegations as true and deciding whether they would warrant relief if they were proven at an evidentiary hearing, the circuit court ruled that Mr.
Griffin had not identified which executions were botched and had not identified admissible evidence. The circuit court in effect made up its own pleading requirements. Mr. Griffin was required to present facts which, if proven, would entitle him to relief.
The circuit court itself impeded Mr. Griffin’s ability to
28 present facts by not ruling on Mr. Griffin’s request for documents from the Department of Corrections.
The circuit court was also mistaken in ruling that Sims v.
State, 754 So. 2d 657 (Fla. 2000), foreclosed Mr. Griffin’s lethal injection claim. Although Sims found lethal injection constitutional, this Court has not hesitated in the past to allow evidentiary hearings on a method of execution which was previously held constitutional. In 1997, based upon events occurring during the execution of Pedro Medina, the court ordered an evidentiary hearing on execution by electrocution.
Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997). In 1999, despite having ultimately found electrocution constitutional in
Jones, the court ordered another evidentiary hearing on execution by electrocution in light of events occurring during the execution of Allen Davis. See Provenzano v. Moore, 744 So.
2d 413 (Fla. 1999). Indeed, the Court has most recently relinquished jurisdiction in a case in order for a circuit court to address issues regarding lethal injection in light of events occurring during the execution of Angel Diaz. Lightbourne v.
McCollum, Fla. Sup. Ct. Case No. SC06-2391 (Fla. Dec. 14, 2006).
Contrary to the circuit court’s ruling in Mr. Griffin’s case,
Sims does not forever foreclose issues regarding lethal
29 injection. Mr. Griffin should receive an evidentiary hearing on his claim.
30 ARGUMENT II
THE CIRCUIT COURT ERRED IN STRIKING MR. GRIFFIN’S CLAIM III AND IN DENYING MR. GRIFFIN’S MOTION TO AMEND WITH CLAIM III, WHICH ALLEGED THAT THE STATE WITHHELD IMPORTANT EVIDENCE DURING PRIOR PROCEEDINGS THAT IMPEACHED ITS CLAIM THAT THE SENTENCING ORDER IN MR. GRIFFIN’S CASE WAS NOT THE PRODUCT OF EX PARTE COMMUNICATION AND DID NOT VIOLATE MR. GRIFFIN’S RIGHT TO AN INDEPENDENT SENTENCING ORDER PREPARED BY THE SENTENCING JUDGE.
In his Rule 3.851 motion filed on February 28, 2005, Mr.
Griffin alleged that the State withheld evidence during the proceedings on Mr. Griffin’s initial Rule 3.851 motion (2PC-R.
120-25). In those initial proceedings, an evidentiary hearing was held on Mr. Griffin’s claim that the State and trial court engaged in ex parte communications regarding the preparation of the court’s order sentencing Mr. Griffin to death. The claim was based upon a sentencing memorandum found in the State’s files which, Mr. Griffin alleged, the trial judge used to prepare the sentencing order but the State did not disclose to defense counsel. A trial prosecutor testified that the memorandum was disclosed to defense counsel. On this basis, the circuit court denied the claim, and this Court affirmed.
Griffin v. State, 866 So. 2d at 7-8.
Mr. Griffin’s 2005 Rule 3.851 motion alleged that in 2000, the State did not disclose evidence impeaching the 2000 testimony of a trial prosecutor that the State’s memorandum was
31 disclosed to defense counsel. This evidence consisted of statements by an assistant attorney general and testimony by Mr.
Griffin’s trial prosecutor that at the time Mr. Griffin was sentenced to death, it was common practice in Dade County for the State to provide ex parte sentencing memoranda to trial judges, specifically including Mr. Griffin’s trial judge. Mr.
Griffin’s 2005 Rule 3.851 motion alleged that this evidence was not previously available to Mr. Griffin because the State had violated its continuing duty under Brady v. Maryland, 373 U.S.
83 (1963), to disclose exculpatory or impeaching evidence (2PC-
R. 120-21, citing, inter alia, Johnson v. Butterworth, 713 So.
2d 985, 987 (Fla. 1998)).
A. THE LOWER COURT ERRED IN STRIKING CLAIM III.
The State moved to strike Claim III of Mr. Griffin’s 2005
Rule 3.851 motion, arguing that the claim was not in the 2003
Rule 3.851 motion and that therefore Mr. Griffin was required to request leave to amend with the claim. The circuit court struck the claim, providing no reasons for that ruling.
The State’s position in the circuit court was based upon its interpretation of this Court’s 2005 order dismissing Mr.
Griffin’s appeal of the dismissal of the 2003 Rule 3.851 motion.
According to the State, this Court’s order directed Mr. Griffin to refile the identical motion he filed in 2003.
32 The Court’s order stated: “Our decision is without prejudice to Griffin’s counsel refiling a proper motion for postconviction relief in the circuit court. Such motion would be nunc pro tunc to the original filing date.” Griffin v.
State, 894 So. 2d 970 (Fla. 2005). Mr. Griffin did exactly what this Court’s order said he was permitted to do–-he filed “a proper motion.” The motion was filed by counsel representing
Mr. Griffin and was verified by Mr. Griffin.
No legal authority supported the circuit court’s striking of Mr. Griffin’s Claim III from the 2005 motion. The State provided no legal authority for striking the claim; the circuit court gave no reasons for granting the State’s motion to strike.
The claim was contained in a “proper” Rule 3.851 motion, and the circuit court erred in striking it.
B. THE LOWER COURT ERRED IN DENYING LEAVE TO AMEND WITH CLAIM III.
After striking Claim III, the circuit court allowed Mr.
Griffin to file a motion requesting leave to amend with Claim
III. The motion to amend was filed, and the circuit court denied it.
Rule 3.851, Fla. R. Crim. P., provides a procedure for amending a Rule 3.851 motion:
Amendments. A motion filed under this rule may be amended up to 30 days prior to the evidentiary hearing upon motion and good cause shown. The trial court may
33 in its discretion grant a motion to amend provided that the motion sets forth the reason the claim was not raised earlier and attaches a copy of the claim sought to be addressed. Rule 3.851(f)(4), Fla. R. Crim. P. (2007). Mr. Griffin’s motion to amend complied with these requirements. The motion gave two reasons Claim III was not filed in 2003: (1) the attorney who filed the 2003 motion did not represent Mr. Griffin, did not have the files in Mr. Griffin’s case, and therefore did not know of the undisclosed evidence or of its significance to Mr.
Griffin’s case; (2) in 2003, the State had not disclosed the evidence upon which the claim was based. Although a copy of
Claim III was not attached to the motion to amend, the claim was contained in the 2005 Rule 3.851 motion, and the circuit court was well aware of its contents.
The circuit court denied the motion to amend because “Penny
Brill testified at the evidentiary hearing in this case.
Defendant does not specifically allege what information is newly discovered or why it could not have been previously discovered”
(2PC-R. 440). The fact that Ms. Brill testified in 2000 is a non sequitur. That is precisely the reason that Claim III should have been heard–-the claim contended that evidence impeaching Ms. Brill’s 2000 testimony was not disclosed to Mr.
Griffin. The second sentence of the court’s ruling is flatly contradicted by the motion to amend, which specifically
34 explained why Claim III could not have been presented in 2003.
The circuit court abused its discretion in denying Mr. Griffin’s motion to amend and should be reversed.
C. THE CLAIM REQUIRES AN EVIDENTIARY HEARING.
Mr. Griffin’s Claim III presented specific allegations that the State had not disclosed evidence impeaching the testimony presented at the 2000 evidentiary hearing on Mr. Griffin’s claim that the State and trial judge engaged in ex parte communications regarding the judge’s order sentencing Mr.
Griffin to death. Mr. Griffin’s allegations are not refuted by the record and thus require an evidentiary hearing. Gaskin v.
State, 737 So. 2d 509, 516 (Fla. 1999); Card v. State, 652 So.
2d 344, 346 (Fla. 1995). In the circuit court, the State disputed Mr. Griffin’s allegations, including his allegations of due diligence. When the State disputes the factual allegations contained in a Rule 3.851 motion an evidentiary hearing is required. Maharaj v. State, 684 So. 2d 726, 728 (Fla. 1996).
In order to insure that a constitutionally sufficient adversarial testing, and hence a fair trial, occur, certain obligations are imposed upon the prosecuting attorney. Banks v.
Dretke, 124 S. Ct. 1256 (2004). “When police or prosecutors conceal significant exculpatory or impeaching material in the
State’s possession, it is ordinarily incumbent on the State to
35 set the record straight.” Banks v. Dretke, 124 S. Ct. at 1263.
Thus, a rule “declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.” Id. at 1275. Under Johnson v.
Butterworth, 713 So. 2d 985, 987 (Fla. 1998), the State has a duty in post-conviction proceedings to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963). A
Brady violation is established when:
The evidence at issue [was] favorable to the accused, either because it [was] exculpatory, or because it [was] impeaching; that evidence [was] suppressed by the State, either willfully or inadvertently; and prejudice [ ] ensued.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice is established where confidence in the reliability of the conviction is undermined as a result of the prosecutor’s failure to comply with his obligation to disclose exculpatory evidence.
Cardona v. State, 826 So.2d 968 (Fla. 2002); Hoffman v. State,
800 So.2d 174 (Fla. 2001); State v. Hugins, 788 So.2d 238 (Fla.
2001); Rogers v. State, 782 So.2d 373 (Fla. 2001); State v.
Gunsby, 670 So.2d 920 (Fla. 1996); Gorham v. State, 597 So.2d
782 (Fla. 1992); Roman v. State, 528 So.2d 1169 (Fla. 1988).
At the evidentiary hearing in 2000, the State presented the testimony of Assistant State Attorney Penny Brill regarding the document found in the state attorney file that was used by the
36 sentencing judge for his sentencing order findings. Ms. Brill testified that she was instructed by someone, she did not recall who, to prepare the “interoffice memorandum” found in the state attorney file. After preparing the memorandum, she claimed that she provided it to the judge, but also shared its existence with
Mr. Griffin’s defense attorney. However, the State was in possession of evidence impeaching Ms. Brill’s testimony that it did not share with either Mr. Griffin nor this Court. Thus, it was not heard by the trier of fact for consideration while deliberating on Mr. Griffin’s claim of entitlement to collateral relief.
In 1996, relief was granted to Dieter Riechmann in part because the State had pursuant to an ex parte request prepared the sentencing findings for the sentencing judge. In 1998, while challenging the grant of relief on appeal, an assistant attorney general, decried the grant of relief because “the judge’s actions were not uncommon practice throughout the state at the time, that that [sic] practice that [sic] was not ruled improper until after Defendant’s trial”. Initial Brief of
Appellant, State v. Riechmann, FSC Case No. SC89,564, at 38.
Evidence that the practice was not “uncommon” nor considered improper by the State at the time of Mr. Griffin’s trial was significant and favorable evidence in the State’s possession
37 that was not disclosed to Mr. Griffin and not heard by this
Court.
Besides the assistant attorney general’s representations in
Riechmann that ex parte contacts between the sentencing court and the State in the preparation of the sentencing findings
“were not uncommon” and his representation that at the time the
State perceived nothing “improper” regarding the “practice,” the trial prosecutor in Mr. Griffin’s case, Assistant State Attorney
Kevin DiGregory, had been the prosecutor in Mr. Riechmann’s case and at least two other capital cases in which 3.850 relief was granted due to his ex parte contact with the sentencing judge.
It was Mr. DiGregory’s standard practice to engage in ex parte contact with the sentencing judge while preparing the factual findings for the sentencing judge. Undersigned counsel is aware that Mr. DiGregory employed this practice in State v. Beltran-
Lopez, Cir. Ct. No. 86-19790-B (11th Jud. Cir., Miami-Dade
County), and State v. Espinosa, Cir. Ct. No. 86-19790-A (11th
Jud. Cir., Miami-Dade County) – two cases in which Judge Snyder was the sentencing judge, besides Mr. Riechmann’s case.
Following the grant of relief in Mr. Riechmann’s case, the State stipulated to Rule 3.850 relief in both the Beltran-Lopez and
Espinosa cases.
38 Besides being the practice of Kevin DiGregory in his capital cases, it was also the practice employed by Miami-Dade
State Attorney’s Office. After relief was granted in Mr.
Riechmann’s case, relief was also granted in Maharaj v. State,
778 So. 2d 944, 947 n. 1 (Fla. 2000), and in Roberts v. State,
840 So. 2d 962 (Fla. 2002). At the evidentiary hearing in Mr.
Roberts’ case in October of 2000, the assigned prosecutor maintained that the ex parte contact did not occur and that
Judge Solomon was confused when he testified that it did occur.
In fact as in Mr. Griffin’s case, the assigned collateral prosecutor took the stand and testified. In Roberts, his testimony was that he had searched the available records and could find no evidence that the State had drafted the sentencing order that was signed by the judge. Months later in the State’s closing argument, the State switched arguments and conceded that the ex parte contact did occur and that the State had drafted the sentencing order, but that Mr. Roberts and his counsel should have figured out those facts sooner, and was thus time barred. It is unknown to undersigned counsel how many other times the State employed this “not uncommon practice.” However, it is clear that the State did not affirmatively disclose the common practice of Kevin DiGregory and the State Attorney’s
39 Office to Mr. Griffin or to this Court when Mr. Griffin’s claim was being heard.
Certainly, Ms. Brill knew that when she took the witness stand that if she did not recall advising Mr. Griffin’s trial counsel of the interoffice memorandum, Mr. Griffin would be entitled to relief. Given that she was representing the State in collateral proceedings, her success was dependent upon her testimony. Such knowledge as hers undoubtedly gave her a motive to want to remember the facts a particular way. Such a motive is classic impeachment evidence. “In determining whether prejudice has ensued, this Court must analyze the impeachment value of the undisclosed evidence.” Mordenti v. State, 894 So.
2d 166 (Fla. 2004). Trial counsel was impeached by the fact that he had been suspended from the practice of law and wished to be reinstated. That provided him with a motive to avoid antagonizing the State and/or avoid providing sworn testimony contradicting Ms. Brill, given that during the reinstatement process comments from the public and other bar members are solicited.
But beyond the impeaching value of the undisclosed evidence, the evidence was itself circumstantial evidence of improper ex parte contact warranting collateral relief. The
State’s withholding of the evidence from this Court permitted an
40 assistant attorney general to argue in the Florida Supreme Court
“there was no admission or direct evidence that an ex parte communication had occurred. Moreover, there is no reason to speculate that one had occurred, as there is direct testimony that no such communication occurred.” Initial Brief, Griffin v.
State, FSC Case No. SC01-457, at 66. Yet, the State knew of the
“not uncommon practice” to the contrary and did not advise Mr.
Griffin nor the courts. Given that it was the “not uncommon practice” that had been followed by Mr. DiGregory and Judge
Snyder in other cases, and given that according to an assistant attorney general at the time of Mr. Griffin’s trial there was no perception by the State that it was an impermissible practice, what does seem unusual is Ms. Brill’s testimony that in Mr.
Griffin’s case, unlike numerous other capital cases, she advised defense counsel of the interoffice memorandum that had been given to Judge Snyder even though no one else in the prosecutor’s office believed that there was any obligation to do so.
Had the State complied with its obligation to disclose favorable evidence, there is a reasonable probability of a different outcome of the previous collateral proceedings. At a minimum, an evidentiary hearing is warranted on this claim.
ARGUMENT III
41 MR. GRIFFIN’S CONVICTION AND SENTENCE ARE UNCONSTITUTIONAL UNDER RING V. ARIZONA.
In Ring v. Arizona, 122 S. Ct. 2428 (2002), the Supreme
Court held the Arizona capital sentencing scheme unconstitutional because a death sentence there is contingent upon finding an aggravating circumstance and assigns responsibility for finding that circumstance to the judge. The
Arizona scheme was found to violate the constitutional guarantee to a jury determination of guilt in all criminal cases. The
Supreme Court based its Ring holding on its earlier decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000), where it held that
“[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Id. at
490 (quoting Jones v. United States, 526 U.S. 227, 252-53 (1999)
(Stevens, J., concurring)). Capital sentencing schemes such as those in Florida and Arizona violate the notice and jury trial rights guaranteed by the Sixth and Fourteenth Amendments because they do not allow the jury to reach a verdict with respect to the facts necessary to render the defendant death eligible.
This Court has previously held that, “[b]ecause Apprendi did not overrule Walton, the basic scheme in Florida is not overruled either.” Mills v. Moore, 786 So. 2d 532, 537 (Fla.
42 2001). Ring overruled in part Walton v. Arizona, 497 U.S. 639
(1990). Ring v. Arizona, 122 S. Ct. 2428 (2002). Additionally,
Ring rejects the reasoning of Mills by establishing: (a) that
Apprendi applies to capital sentencing schemes; (b) that States may not avoid the Sixth Amendment requirements of Apprendi by simply specifying death or life imprisonment as the only sentencing options; and © that the relevant and dispositive question is whether under state law death is “authorized by a guilty verdict standing alone.”
In Mills, the Court observed that the “plain language of
Apprendi indicates that the case is not intended to apply to capital [sentencing] schemes.” Mills, 786 So. 2d at 537. Such statements appear at least four times in Mills. The Court in
Mills reasoned that because first-degree murder is a “capital felony,” and the dictionary defines such a felony as “punishable by death,” the finding of an aggravating circumstance did not expose the petitioner to punishment in excess of the statutory maximum. Mills, 786 So. 2d at 538. The logic of Mills simply did not survive Ring.
That Mills can no longer survive constitutional scrutiny is further demonstrated by the decision of the United States
Supreme Court in Sattazahn v. Pennsylvania, 537 U.S. 101 (2003).
In Sattazahn, a plurality of the Supreme Court consisting of
43 Justices Scalia and Thomas, and Chief Justice Rehnquist, made it clear that there was no practical significance to its use of the phase “functional equivalent of an element” in Ring rather than simply “element.” The plurality directly stated:
Our decision in Apprendi [] clarified that what constitutes an ‘element’ of the offense for purposes of the Sixth Amendment’s jury trial guarantee. Put simply, if the existence of any fact....increases the maximum punishment that may be imposed on a defendant, that fact–no matter how the state labels it, constitutes an element....
Sattazahn, 537 U.S. at 111 (emphasis added). The plurality then referenced the “functional equivalent” language of Ring, and immediately thereafter stated that “for purposes of the Sixth
Amendment jury-trial guarantee, the underlying offense of
‘murder’ is a distinct, lesser included offense of ‘murder plus one or more aggravating circumstances...... ’” Id. Moreover, the plurality stated later in the opinion that “‘murder plus one or more aggravating circumstances’ is a separate offense from
‘murder’ simpliciter.” Id. at 112. Applying these principles to the case before it, the Court stated that the death eligible offense for which Sattahzan was sentenced “is properly understood to be a lesser included offense of ‘first degree
44 murder plus aggravating circumstances.’” Id. at 112 (emphasis added).6
With the premise of Ring and Sattazahn in mind, it becomes clear that Florida’s statute is unconstitutional, and that the basis of Mills can no longer survive. Section Fla. Stat.
921.141 provides:
(3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH– Notwithstanding the recommendation of a majority of the jury, the court, after weighting the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence is based as to the facts:
(a) The sufficient aggravating circumstances exist as enumerated in subsection (5), and (b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.
In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence, the court shall impose sentence of
6The plurality also stated that the treatment of aggravating circumstances as elements of a greater offense is no different under the Fifth Amendment than under the Sixth Amendment. Sattazahn, 537 U.S. at 112.
45 life imprisonment in accordance with S. 775.082.
(Fla. Stat. 921.141(3))(emphasis added).
This Court has recognized that the aggravating circumstances at issue in the penalty phase performed the Eighth
Amendment narrowing function in conformity with Zant v.
Stephens:
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.
Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990). See
McConnell v. State, 102 P.3d 606 (Nev. 2004).
Thus, it is clear that the factual determination of
“sufficient aggravating circumstances” at the sentencing is the finding of those additional facts that are necessary under the
Eighth Amendment requirement that death eligibility be narrowed beyond the traditional definition of first degree murder. Zant,
462 U.S. at 878 (“[S]tatutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: They circumscribe the class of persons eligible
46 for the death penalty”). Clearly, in Florida, the narrowing of the death eligible occurs in the sentencing phase.
The factual determination that “sufficient aggravating circumstances exist” has not been made during the guilt phase of a capital trial under Florida law as it has operated during the past 25 years. Mr. Griffin is aware of the opinions of various members of this Court which have concluded that Ring has no significance to Florida’s capital sentencing scheme because, in the case of a defendant who has been found guilty of either a contemporaneous felony or who has a prior violent felony conviction, “the sentence of death....could be imposed based on these convictions by the same jury.” Kormondy v. State, 845 So.
2d 41, 54 n. 3 (Fla. 2003). This view of Florida’s sentencing statute, however, is not in accord with the reality of Florida’s system, as demonstrated above. Unlike states such as Louisiana and Texas, death eligibility in Florida is determined at the penalty phase. This means that, in order for a death sentence to be considered as a possible sentence, certain facts must be found to be present during the jury’s penalty phase deliberations. Nowhere in the Florida Supreme Court’s nearly three (3) decades of death penalty jurisprudence has it – or the
Supreme Court of the United States, for that matter – classified
47 Florida as a state where death eligibility is determined at the guilt phase.
Moreover, as to a defendant’s conviction of a prior crime of violence, this prior conviction did exist at the time of the acts that comprised the elements of capital first degree murder.
Under prior Florida law, it was permissible to consider any conviction that existed at the time of the sentencing as a prior conviction for purposes of these aggravator. However, the reasoning was that the aggravator was a sentencing factor.
Under Ring, such a conviction, i.e. one obtain subsequent to the alleged capital crime, cannot be used to render a defendant death eligible. This aggravator does not make a defendant
“eligible” for the death penalty in light of the fact that
Florida is a weighing state. For example, on several occasions, this Court has determined that the weight of a defendant’s prior crime of violence mitigates against that defendant’s eligibility to be sentenced to death. See Jorgenson v. State, 714 So. 2d
423, 428 (Fla. 1998) (“The State presented and the trial court only found one aggravating factor in this case–Jorgenson’s 1967 prior conviction for second-degree murder. The facts of the prior conviction mitigate the weight that a prior violent felony would normally carry”); Chaky v. State, 651 So. 2d 1169, 1173
(Fla. 1995) (death penalty disproportionate when the lone
48 aggravator based on a prior violent felony was mitigated by the facts surrounding the previous crime). Hence, the sufficiency of a defendant’s prior violent felony is to be determined by the jury in a Florida death penalty sentencing phase, and is equally subject to the stringent weighing process that Florida’s sentencing scheme requires in order for a defendant to be found eligible for the death penalty.
Moreover, the “exception” to the rule announced in Apprendi does not apply to a weighing state such as Florida. See
Almendarez-Torres v. United States, 523 U.S. 224 (1998). Under
Florida law, the mere existence of an aggravating circumstance does not make a defendant eligible for the death penalty.
Rather, Florida Statute Section 921.141(3) requires the trial judge to make three factual determinations before a death sentence may be imposed. The trial judge (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.” If the judge does not make these findings, “the court shall impose a sentence of life imprisonment in accordance with [Section] 775.082.” Id.
49 (emphasis added). Hence, under a plain reading of the statute, sufficient aggravating circumstances must be present.
Mr. Griffin also submits that the holding of Almendarez-
Torres did not survive Apprendi and Ring. In Apprendi, Justice
Thomas, whose vote was decisive of the five-to-four decision in
Almendarez-Torres, announced that he was receding from his support of Almendarez-Torres. The Apprendi majority found it unnecessary to overrule Almendarez-Torres explicitly in order to decide the issues before it, but acknowledge that “it is arguable that Almendarez-Torres was incorrectly decided.”
Apprendi, 530 U.S. at 489. It then went on in a footnote to add to “the reasons set forth in Justice SCALIA’s [Almendarez-
Torres] dissent, 523 U.S. at 248-60,” the observation that “the
[Almendarez-Torres] Court’s extensive discussion of the term
‘sentencing factor’ virtually ignored the pedigree of the pleading requirement at issue,” which drive the Sixth Amendment ruling in Apprendi. Apprendi, 530 U.S. at 489 n.15.7
7The majority opinion in Almendarez-Torres notably relied on McMillan v. Pennsylvania, 477 U.S. 79 (1986), and, in so doing, refused to distinguish between a “sentencing factor...[that] triggered a mandatory minimum sentence” in McMillan and a “sentencing factor...[that] triggers an increase in the maximum permissive sentence” in Almendarez-Torres, 523 U.S. at 224. That aspect of Almendarez-Torres has, of course, now been explicitly repudiated. See Harris v. United States, 122 S. Ct. 2406, 2419 (2002) (decided together with Ring).
50 The Florida capital sentencing statute, like the Arizona statute struck down in Ring, makes imposition of the death penalty contingent upon the actual findings of the judge at the sentencing – not upon a jury determination made in conformity with the Sixth Amendment. Section 775.082 of the Florida
Statutes provides that a person convicted of first-degree murder must be sentenced to life imprisonment “unless the proceedings held to determine sentence according to the procedure set forth in § 921.141 result in finding by the court that such person shall be punished by death.” This Court has long held that §§
775.082 and 921.141 do not allow imposition of a death sentence upon a jury’s verdict of guilt, but only upon the finding of sufficient aggravating circumstances. State v. Dixon, 283 So.
2d 1, 7 (Fla. 1973).
In Harris v. United States, 122 S. Ct. 2406 (2002), the
Supreme Court held that under Apprendi “those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis.” Id. And in Ring, the Court held that the aggravating factors enumerated under Arizona law operated as
“the functional equivalent of an element of a greater offense” and thus had to be found by a jury. Pursuant to the reasoning set forth in Apprendi and Ring, aggravating factors are
51 equivalent to elements of the capital crime itself and must be treated as such. The full panoply of rights associated with trial by jury must therefore attach to the finding of
“sufficient aggravating circumstances.”
In conformity with Florida law for the past 25 years, the guilt phase verdict returned by the unanimous jury in Mr.
Griffin’s case did not included a finding of “sufficient aggravating circumstances” necessary to render a defendant death eligible. The penalty phase jury was instructed that its recommendation is advisory and need not be unanimous. Findings of the elements of a capital crime by a mere simple majority, or anything less than by a unanimous verdict, is unconstitutional under the Sixth and Fourteenth Amendments. In the same way that the Sixth Amendment guarantees a baseline level of certainty before a jury can convict a defendant, it also constrains the number of jurors who can render a guilty verdict. See Apodaca v. Oregon, 406 U.S. 404 (1972) (the Sixth and Fourteen
Amendments require that a criminal verdict must be supported by at least a “substantial majority” of the jurors). Clearly, a mere numerical majority – which is all that is required under
Section 9231.141(3) for the jury’s advisory sentence – would not satisfy the “substantial majority” requirement of Apodaca. See, e.g., Johnson v. Louisiana, 406 U.S. 356, 366 (1972) (Blackmun,
52 J., concurring) (a state statute authorizing a 7-5 verdict would violate Due Process Clause of Fourteenth Amendment).
Because Florida’s enumerated aggravating factors operate as
“the functional equivalent of an element of a greater offense,” that element must be found by a jury like any other element of an offense. Apprendi, 530 U.S. at 494. See Sattazahn v.
Pennsylvania. As to the determination of the presence of other elements of a crime, Florida law provides, “No verdict may be rendered unless all of the trial jurors concur in it.” Fla. R.
Crim. P. 3.440. Florida courts have held that unanimity is required at the guilt phase of a capital case. Williams v.
State, 438 So. 2d 781, 784 (Fla. 1983). See Flanning v. State,
597 So. 2d 864, 866 (Fla. 3rd DCA 1992) (“It is therefore settled that ‘[i]n this state, the verdict of the jury must be unanimous’ and that any interference with this right denied the defendant a fair trial. Jones v. State, 92 So. 2d 261 (Fla.
1956)”). The right to a unanimous jury verdict must extend to each necessary element of the charged crime. As to an element of the offense, this Court has recognized that a judge may not make fact finding “on matters associated with the criminal episode” that “would be an invasion of the jury’s historical function.” State v. Overfelt, 457 So. 2d 1385, 1387 (Fla.
1984). Neither the sentencing statute, case law from this
53 Court, nor the standard jury instructions used the past 25 years required that the jurors participating in a penalty phase to concur in finding whether any particular aggravating circumstances had been proved, or “[w]hether sufficient aggravating circumstances exist[ed],” or “[w]hether sufficient aggravating circumstances exist[ed] which outweigh[ed] the mitigating circumstances.” Fla. Stat. § 921.141(2). The instructions in Mr. Griffin’s case which followed the standard jury instructions did not require that the twelve jurors agree that the State had proven the elements necessary for death eligibility. The instructions violated Ring.
In Sullivan v. Louisiana, 508 U.S. 275 (1993), the Supreme
Court said, “the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.” Sullivan,
508 U.S. at 278. The Court explained that there must be a verdict that decides the factual issues in order to comply with the Sixth Amendment. In doing so, the Court explained:
It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine (as [In re] Winship[,397 U.S. 358 (1970)] requires) whether he is guilty beyond a reasonable doubt. In other words the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.
54 Sullivan, 508 U.S. at 278. In a case such as this, where the error is that a jury did not return a verdict on the essential elements of a capital murder, but instead the responsibility was delegated by state law to a court, “no matter how inescapable the findings to support the verdict might be,” for a court “to hypothesize a guilty verdict that was never rendered...would violate the jury trial right.” Sullivan, 508 U.S. at 279.
As the United States Supreme Court said in Walton, “[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, 497 U.S. at 648. This Court has repeatedly emphasized that a judge’s findings must be made independently of the jury’s recommendation. See Grossman v.
State, 525 So. 2d 833, 840 (Fla. 1988). Because the judge must find that “sufficient aggravating circumstances exist”
“notwithstanding the recommendation of a majority of the jury,”
Fla. Stat. § 921.141(3), he may consider and rely upon evidence not submitted to the jury. The judge is also permitted to consider and rely upon aggravating circumstances that were not submitted to the jury. See Davis v. State, 703 So. 2d 1055,
1061 (Fla. 1998). Because the jury’s role is merely advisory and contains no findings upon which to judge the proportionality of the sentence, this Court has recognized that its review of a
55 death sentence is based and dependent upon the judge’s written findings. Morton v. State, 789 So. 2d 324, 333 (Fla. 2001).
The Florida capital scheme violates the constitutional principles recognized in Ring, and Mr. Griffin’s sentence of death violates the Sixth and Eighth Amendments.
CONCLUSION
In light of the foregoing arguments, Mr. Griffin requests that this matter be remanded to the circuit court for a full and fair evidentiary hearing and for other relief as set forth in this brief.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by United States Mail, first-class postage prepaid, to
Sandra S. Jaggard, Assistant Attorney General, Office of
Attorney General, Rivergate Plaza, Suite 650, 444 Brickell
Avenue, Miami, Florida 33131, on June 20, 2007.
56 CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief complies with the font requirements of rule 9.210(a)(2) of the Florida Rules of
Appellate Procedure.
______MARTIN J. MCCLAIN Florida Bar No. 0754773 McClain & McDermott, P.A. 141 N.E. 30th Street Wilton Manors, FL 33334 (305) 984-8344
Counsel for Appellant
57