Simpson v. State

368 So.3d 513 (Mem)

Willie James SIMPSON, Appellant, v. STATE of Florida, Appellee.

Case No. 5D23-0128

District Court of Appeal of Florida, Fifth District.

Opinion Filed August 4, 2023

Jessica J. Yeary, Public Defender, and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Adam B. Wilson, Assistant Attorney General, Tallahassee, for Appellee.

JAY, J.

Following a bifurcated trial, Appellant was convicted by a jury of his peers of attempted second-degree murder and possession of a firearm by a convicted felon. The trial court designated Appellant both a prison releasee reoffender and habitual violent felony offender and sentenced him to concurrent terms of thirty years in prison on each count, including the applicable minimum mandatory sentences. Appellant appeals his judgment and sentence. We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App. P. 9.030(b)(1)(A).

We affirm in all respects. Appellant's request that this Court certify a question to the Florida Supreme Court as an issue of great public importance is denied.

AFFIRMED.

SOUD, J., concurs with opinion, in which Jay, J., joins.

PRATT, J., concurs with opinion, in which Jay, J., joins.

SOUD, J., concurring.

I concur entirely with this Court's affirmance and write to address Simpson's claim of a Sixth Amendment right to a jury of twelve persons.

I.

Appellant argues that a six-person jury violates his right to trial by jury secured by the Sixth Amendment to the United States Constitution. ¹ In support of his argument, Appellant traces two concurring opinions from the First District that question the United States Supreme Court's opinion in Williams v. Florida , 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), which upheld the constitutionality of Florida's use of six-person juries in non-capital cases. See Lessard v. State , 232 So. 3d 13, 17 (Fla. 1st DCA 2017) (Makar, J., concurring) (questioning Williams but recognizing in 2017 that a claimed Sixth Amendment right to a twelve-person jury was a "non-starter," as "[n]o federal constitutional impediment stands in the way of a six-person jury in a state criminal court"); Phillips v. State , 316 So. 3d 779, 787–88 (Fla. 1st DCA 2021) (Makar, J., concurring) ("updat[ing his] observation" in 2021 and concluding that Williams "may be ripe for re-evaluation" in light of Ramos v. Louisiana , ––– U.S. ––––, 140 S. Ct. 1390, 206 L.Ed.2d 583 (2020) ). ²

This crescendoing critique of Williams was joined by a concurring opinion from the Fourth District in Guzman v. State , 350 So. 3d 72, 75 (Fla. 4th DCA 2022) (Gross, J., concurring), which noted what was believed to be "a classic example of how the law navigates the shifting sands of constitutional analysis." (emphasis added). I disagree. This quote actually demonstrates a primary flaw of the criticism of Williams . Rather than on "shifting sands," proper constitutional analysis can only legitimately be founded upon the firmest of bedrock—a vast foundation of immovable and unchanging stone that is hewn only by the text of the Constitution itself.

II.

Florida's use of six jurors does not violate the right to trial by jury guaranteed by the Sixth Amendment. See Williams , 399 U.S. at 103, 90 S.Ct. 1893. ³ This has been the settled conclusion of binding legal precedent for fifty-three years . However, this old issue has found new energy in light of Justice Gorsuch's withering rebuke of Williams in his recent dissenting opinion in Khorrami v. Arizona , ––– U.S. ––––, 143 S. Ct. 22, 214 L.Ed.2d 224 (2022). ⁴

A.

Relevant to the case sub judice , the Sixth Amendment secures:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ....

Amend. VI, U.S. Const. The Supreme Court has determined that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases in state courts that—were they to be tried in a federal court—would come within the Sixth Amendment's guarantee. Duncan v. Louisiana , 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

Thereafter, in Williams , the Court held that Florida law providing for a six-person jury in a non-capital robbery trial, rather than a twelve-person jury, did not violate the Sixth Amendment. Williams , 399 U.S. at 86, 90 S.Ct. 1893. The Court noted that how the common law settled on the number of twelve persons to constitute a jury is unclear. Whether the number twelve was born from the size of "the presentment jury from the hundred, from which the petit jury developed[,]" or the "more fanciful" reasons founded "on little more than mystical or superstitious insights[,]" or from that presented by Lord Coke as based "in holy writ" (such as twelve apostles, twelve stones or twelve tribes), the particular feature of twelve jurors, the Court concluded, was a "historical accident ...." Williams , 399 U.S. at 87–89, 90 S.Ct. 1893. Williams held that this "accidental feature of the jury" (i.e., twelve jurors) was not "immutably codified into our Constitution." Id. at 90, 100, 90 S.Ct. 1893. "Justice White's opinion for the Court in Williams looked to the underlying purpose of the jury-trial right, which it identified as interposing a jury of the defendant's peers to protect against oppression by a ‘corrupt or overzealous prosecutor’ or a ‘compliant, biased, or eccentric judge.’ " Ramos , 140 S. Ct. at 1434 (Alito, J., dissenting) (citations and internal quotation marks omitted).

B.

At the outset, it is noteworthy that the text of the Sixth Amendment requires "in all criminal prosecutions" a trial that is (1) speedy, (2) public, (3) before an impartial jury, and (4) said jury being of the State and district where the crime was committed. Thus, the text provides the only constitutionally prescribed requirements for a jury to decide a criminal trial—that is, the jury be impartial and from the State and district where the crime was committed. The text of the Sixth Amendment provides no other express requirement—including no requirement as to the exact number of jurors. Yet, the question is raised: what number of jurors is required to constitute a jury guaranteed by the Sixth Amendment?

In dissenting from the denial of certiorari review, Justice Gorsuch opined in Khorrami that the Sixth Amendment guarantee of a trial by an impartial jury constitutionalizes the inflexible requirement of twelve jurors because a twelve-person jury was well-established in the common law. ⁵

As an initial matter, as Justice Gorsuch noted in his dissent (citing Sir William Blackstone, James Wilson, and others), it is true the concept of trial by jury at common law was long understood to include twelve persons. The Williams Court, too, acknowledged that "sometime in the 14th century the size of the jury at common law came to be fixed generally at [twelve] ...." Williams , 399 U.S. at 89, 90 S.Ct. 1893. But that is not the issue. The question is "whether that particular feature must be accepted as a sine qua non of the jury trial guaranteed by the Constitution." Id. at 91 n.27, 90 S.Ct. 1893.

It is likewise true that "[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." Khorrami , 143 S. Ct. at 23 (Gorsuch, J., dissenting) (quoting Smith v. Alabama , 124 U.S. 465, 8 S.Ct. 564, 31 L.Ed. 508 (1888) ). However, to insist that a jury under the Sixth Amendment requires exactly twelve members goes beyond the common law influencing the interpretation of the Sixth Amendment; rather, it allows the common law to overcome the language chosen in the amendment that was born in the time and from the circumstances of its writing.

When interpreting the United States Constitution, a proper determination of the original public meaning of the Sixth Amendment is not necessarily the product of an exercise that begins and ends with references to the common law developed by judges in England over the centuries. As elucidated by Justice Alito, when analyzing a federal statute:

[W]hat matters in the end is[:] How would the terms of a statute have been understood by ordinary people at the time of enactment?

Justice Scalia was perfectly clear on this point. The words of a law, he insisted, "mean what they conveyed to reasonable people at the time. "

Leading proponents of Justice Scalia's school of textualism have expounded on this principle and explained that it is grounded on an understanding of the way language works. As Dean John F. Manning explains, "the meaning of language depends on the way a linguistic community uses words and phrases in context." "[O]ne can make sense of others’ communications only by placing them in their appropriate social and linguistic context," and this is no less true of statutes than any other verbal communications. "[S]tatutes convey meaning only because members of a relevant linguistic community apply shared background conventions for understanding how particular words are used in particular contexts." Therefore, judges should ascribe to the words of a statute "what a reasonable person conversant with applicable social conventions would have understood them to be adopting." Or, to put the point in slightly different terms, a judge interpreting a statute should ask " ‘what one would ordinarily be understood as saying, given the circumstances in which one said it. ’ "

Judge Frank Easterbrook has made the same points:

"Words are arbitrary signs, having meaning only to the extent writers and readers share an understanding.... Language in general, and legislation in particular, is a social enterprise to which both speakers and listeners contribute, drawing on background understandings and the structure and circumstances of the utterance ."

Bostock...