Evans v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 18 December 2012
• Docket Number: No. 11–14498.,11–14498.
• Citation: 699 F.3d 1249
• Parties: Paul H. EVANS, Petitioner–Appellee Cross Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellants Cross Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

699 F.3d 1249

Paul H. EVANS, Petitioner–Appellee Cross Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellants Cross Appellees.

No. 11–14498.

United States Court of Appeals, Eleventh Circuit.

Oct. 23, 2012.

Rehearing and Rehearing En Banc Denied Dec. 18, 2012.

Suzanne Myers Keffer (Court–Appointed), Neal A. Dupree (Court–Appointed), Christina L. Spudeas (Court–Appointed), CCRC–South, Fort Lauderdale, FL, Martin J. McClain (Court–Appointed), McClain & McDermott, Wilton Manors, FL, for Petitioner–Appellee–Cross Appellant.

Leslie Teresa Campbell, Atty. Gen.'s Office, West Palm Beach, FL, Charmaine Mary Millsaps, Atty. Gen.'s Office, Tallahassee, FL, for Respondents–Appellants–Cross Appellees.

Elliot H. Scherker, Greenberg Traurig, PA, Miami, FL, for Nat. Ass'n of Criminal Defense Lawyers, Amicus Curiae.

Karen M. Gottlieb, Coconut Grove, FL, Sonya Rudenstine, Gainesville, FL, Michael Robert Ufferman, Michael Ufferman Law Firm, PA, Tallahassee, FL, for Florida Ass'n of Criminal Defense Lawyers and Florida Capital Resource Ctr., Amici Curiae.

Appeals from the United States District Court for the Southern District of Florida.

Before CARNES, MARCUS and PRYOR, Circuit Judges.

CARNES, Circuit Judge:

Confident that he knew what the future would bring, one of Shakespeare's characters boasted that “[t]here are many events in the womb of time which will be delivered.” William Shakespeare, Othello, Act I, Scene 3, lines 412–13. On the subject of lower courts predicting that the Supreme Court is going to overrule one of its own decisions, however, Judge Hand cautioned against “embrac[ing] the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.” Spector Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir.1943) (Hand, J., dissenting). The Supreme Court has made Hand's warning a clear command by repeatedly instructing lower courts that when one of its earlier decisions with direct application to a case appears to rest on reasons rejected in a more recent line of decisions, we must follow the directly applicable decision and leave to the high Court the prerogative of overruling its own decisions. As will become apparent, those instructions are dispositive of the State's appeal from the grant of habeas corpus relief in this case.

I.

This is a murder for hire case in which Paul Evans contracted with Paul Pfeiffer's wife to kill her husband in return for a camcorder, a stereo, and some of the insurance money. Evans v. State, 808 So.2d 92, 95–98 (Fla.2001). Evans performed his part of the contract by murdering Pfeiffer with three shots from a .38 caliber pistol—one bullet to his spine and two bullets to his head. Id. at 97.

Evans was indicted and convicted on one count of first-degree murder. As is the practice in Florida, the indictment did not charge a sentencing stage aggravating circumstance. There was, however, no evidence that Evans had any motive for murdering the victim except for pecuniary gain in the form of the compensation that the victim's wife had agreed to give him in return for killing her husband. Seeid. at 95–98. And the fact that a murder was committed for pecuniary gain is a statutory aggravating circumstance that makes the defendant eligible for a death sentence in Florida. SeeFla. Stat. § 921.141(5)(f) (1990).

After the jury convicted Evans of first-degree murder, as charged, the trial court conducted a separate sentence proceeding in front of the jury. During that proceeding the jury heard evidence of mitigating circumstances. The court instructed the jury that it was to render “an advisory sentence based upon [its] determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.” Although Florida law provided a total of eleven aggravating circumstances at the time Evans murdered Pfeiffer, see id. § 921.141(5)(a)–(k), the court decided that the evidence would support finding only two of them.¹ The court instructed the jury that the only aggravating circumstances it could consider were whether Evans had committed the murder for pecuniary gain, id. § 921.141(5)(f), and whether he had committed the murder “in a cold and calculated and premeditated manner without any pretense of moral or legal justification,” id. § 921.141(5)(i). The court also instructed the jury that:

If you find the aggravating circumstances do not justify the death penalty, your advisory sentence should be one of life imprisonment without possibility of parole for twenty-five years.

Should you find sufficient aggravating circumstances do exist, it will then be your duty to determine whether mitigating circumstances exist that outweigh the aggravating circumstances.

....

Each aggravating circumstance must be established beyond a reasonable doubt before it may be considered by you in arriving at your decision. If one or more aggravating circumstances are established, you should consider all the evidence tending to establish one or more mitigating circumstances and give that evidence such weight as you feel it should receive in reaching your conclusion as to the sentence that should be imposed.

(Emphasis added.) About mitigating circumstances, the court instructed the jury: “Among the mitigating circumstances you may consider, if established by the evidence, are age of the Defendant at the time of the crime, any other aspect of the Defendant's character, record, or background that would mitigate against the imposition of the death penalty.” The court explained that while aggravating circumstances had to be established beyond a reasonable doubt in order for the jury to consider them, mitigating circumstances did not require the same level of proof. It told the jury that: “If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.”

The jury returned a verdict recommending by a vote of nine to three that Evans be sentenced to death. The practice in Florida is for the advisory verdict not to specify which aggravating circumstances the jury found and this verdict followed that practice. It did not indicate whether the jury had found the pecuniary gain aggravating circumstance or the cold, calculated and premeditated aggravating circumstance, or both. We do know, however, that the jury had to have found one or both of those aggravating circumstances or it would not have returned the verdict that it did. SeeFrancis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 1976 n. 9, 85 L.Ed.2d 344 (1985) (“[W]e adhere to the crucial assumption underlying our constitutional system of trial by jury that jurors carefully follow instructions.”); see also United States v. Lopez, 649 F.3d 1222, 1237 (11th Cir.2011) (“We presume that juries follow the instructions given to them.”); United States v. Townsend, 630 F.3d 1003, 1013–14 (11th Cir.2011) (same).

After the jury recommended a death sentence, the trial court held a Spencerhearing,² at which the State presented for the court's consideration letters from the victim's father and mother. The court also heard from Evans' mother and from Evans himself. The court entered an order finding that both of the statutory aggravating circumstances that it had permitted the jury to consider did exist: (1) Evans committed the murder for pecuniary gain, and (2) he committed the murder “in a cold, calculated, and premeditated manner without any pretense of legal or moral justification.” Evans, 808 So.2d at 99. The court found one statutory mitigating circumstance, which was Evans' age at the time he committed the murder (19), and eleven nonstatutory mitigating circumstances. Id. After determining that the two aggravating circumstances outweighed the mitigating circumstances, the court sentenced Evans to death, as the jury had recommended. Id. at 95. The Florida Supreme Court affirmed Evans' conviction and sentence on direct appeal. Id. The United States Supreme Court denied his petition for a writ of certiorari. Evans v. Florida, 537 U.S. 951, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002).

Seeking postconviction relief in state court, Evans filed a motion under Florida Rule of Criminal Procedure 3.851, asserting six claims for relief, including for the first time a claim that Florida's capital sentencing statute, Fla. Stat. § 921.141, violates the Sixth Amendment, as interpreted in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).³ The state collateral court granted an evidentiary hearing on three of his other claims and heard testimony from Evans' trial counsel, alibi witnesses, mental health experts, and family members. The court denied Evans' Rule 3.851 motion and his motion for a rehearing. The Florida Supreme Court affirmed the denial of Rule 3.851 relief and denied Evans' petition to it for a writ of habeas corpus. Evans v. State, 995 So.2d 933, 954 (Fla.2008). It also denied his motion for rehearing.

Evans then filed a 176–page petition for a writ of habeas corpus in federal district court, raising 17 claims for relief. The district court denied habeas relief on 16 of Evans' claims but granted him relief from his death sentence on his seventeenth claim, ruling that Florida's capital sentencing statute violates the Sixth Amendment as interpreted in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The State filed a motion to alter or amend, contending that the district court had erred in that part of its ruling; the district court denied that motion.

Evans also filed a motion to alter or amend, which the district court denied, reasserting its rejection of Evans' claims that (1) his Sixth Amendment right to a public trial was violated; (2) his counsel was ineffective...