Thomas Moore (florida) Habeas Petition

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IN THE SUPREME COURT OF FLORIDA

CASE NO. SC04-____

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THOMAS JAMES MOORE,

Petitioner,

v.

JAMES V. CROSBY, JR.,

Secretary, Florida Department of Corrections,

Respondent.

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______________________________________________

PETITION FOR WRIT OF HABEAS CORPUS

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MARTIN J. MCCLAIN

Attorney At Law

Florida Bar No. 0754773

141 N.E. 30th Street

Wilton Manors, FL 33334

[phone]

COUNSEL FOR PETITIONER

INTRODUCTION

This petition for habeas corpus relief is being filed in order to address substantial claims of error arising under State v. Ruiz, 863 So. 2d 1205 (Fla. 2003), Bunkley v. Florida, 123 S.Ct. 2020 (2003), and Crawford v. Washington, 2004 U.S. Lexis 1838 (2004). These cases establish that Mr. Moore’s conviction for first degree murder and his death sentence are invalid.

Citations to the direct appeal record of Mr. Moore’s trial shall be as "R[volume number]. [page number]." Citations to the record of Mr. Moore’s first Rule 3.850 proceedings will be as "1PC-R. [page number]." Citations to the record of Mr. Moore’s second Rule 3.850 proceedings will be as "2PC-R. [page number]." All other citations shall be self-explanatory.

JURISDICTION

A writ of habeas corpus is an original proceeding in this Court governed by Fla. R. App. P. 9.100. This Court has original jurisdiction under Fla. R. App. P. 9.030(a)(3) and Article V, § 3(b)(9), Fla. Const. The Constitution of the State of Florida guarantees that "[t]he writ of habeas corpus shall be grantable of right, freely and without cost." Art. I, § 13, Fla. Const.

REQUEST FOR ORAL ARGUMENT

Mr. Moore requests oral argument on this petition.

STATEMENT OF THE CASE

On February 18, 1993, Mr. Moore was indicted on six (6) counts: 1) murder in the first degree; 2) attempted armed robbery; 3) conspiracy to commit robbery; 4) armed burglary; 5) arson; and 6) possession of a firearm by a convicted felon (R1. 3-5). Mr. Moore’s trial began on October 25, 1993, and on October 29, 1993, the jury found Mr. Moore guilty on all counts (R13. 1381-82).

On November 3, 1993, the jury recommended the death penalty by a vote of nine (9) to three (3) (R14. 1553). The jury had been instructed on three aggravating circumstances: 1) previous conviction of a violent felony; 2) that the instant crime was committed for the purpose of avoiding arrest; and 3) that the instant crime was committed for financial gain. (R. 1543-4.)

The court held a Spencer hearing on November 19, 1993, in addition to hearing Mr. Moore’s Motion for New Trial, for the purpose of hearing any additional evidence relevant to sentencing on first degree murder. At this hearing, the court indicated that he had previously reviewed the State’s sentencing memorandum and had himself supplied a copy to defense counsel. (R. 1573.) The court expressed his intention to review the "ID file" regarding Mr. Moore’s prior violent felonies. (R. 1573.) Defense counsel objected to such reliance on non-record hearsay, to which the court responded that he had "already reviewed the ID file on many occasions." (R. 1574.) Defense counsel made oral arguments against the State’s memorandum.

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The trial court followed the jury’s recommendation and imposed a death sentence on December 2, 1993 (R15. 1580-87), entering the sentencing order on the same day (R3. 501). As statutory aggravators the Court found: 1) previous conviction of a violent felony; 2) that the instant crime was committed for the purpose of avoiding arrest; and 3) that the instant crime was committed for financial gain. The Court attached great weight to these aggravators. The Court attached slight weight to the statutory mitigator of age, saying that, "the defendant has exhibited a criminal maturity beyond his age." (R.I. 503.) The Court briefly addressed the nonstatutory mitigation as follows:

The defendant offered testimony from witnesses including family members and friends who stated their opinion of the character of the Defendant. Most of these witnesses either have little knowledge or attach little significance to the criminal history of the Defendant. Consequently, the Court attaches no significance or value to this evidence.

(R.I. 503-4.) There is no evaluation or mention of any specific testimony, nor is there any consideration of the relative punishment of the codefendants as mitigation.

On direct appeal, this Court affirmed Mr. Moore's convictions and sentences. Moore v. State, 701 So.2d 545 (Fla. 1997), cert. denied, 523 U.S. 1083 (1998).

In 1999 and 2000, Mr. Moore litigated a Rule 3.850 motion in the circuit court. That court ultimately denied all claims without an evidentiary hearing.

Mr. Moore appealed that ruling to this Court and also filed a Petition for a Writ of Habeas Corpus. On March 7, 2002, this Court affirmed the denial of Rule 3.850 relief and denied habeas corpus relief. Moore v. State, 820 So. 2d 199 (Fla. 2002). The Court denied rehearing on June 20, 2002.

On July 19, 2002, Mr. Moore filed a Rule 3.850 motion raising a claim under Ring v. Arizona, 122 S. Ct. 2428 (2002) (2PC-R. 1-24). After the State filed a response to this motion (2PC-R. 25-48), the circuit court denied relief (2PC-R. 73-75). Mr. Moore filed a motion for rehearing, which was denied (2PC-R. 76-78, 79-80). Mr. Moore filed a notice of appeal (2PC-R. 81-82). That appeal is presently pending before this Court.

STATEMENT OF THE FACTS

Mr. Moore’s convictions and death sentence arose from the death of John Parrish on January 21, 1993 (R1. 3-5). Mr. Parrish’s body was discovered when neighbors noticed a fire in his house (R9. 688-89). The medical examiner testified that Mr. Parrish had been shot twice and was dead before the fire began (R9. 736-38).

Several State witnesses testified that earlier that afternoon, they had seen Mr. Moore talking to Carlos Clemons and Vincent Gaines (R8. 457; R9. 602-03, 632-33, 656). Some minutes before the fire, several witnesses heard gunshots (R8. 489-90). At the time of the shots, Gaines was standing on the street in the rain, and Clemons and Moore were gone (R8. 460-61).

Gaines testified that Mr. Moore told him and Clemons that they could get money from Mr. Parrish (R8. 542-44). Gaines agreed to be the lookout (R8. 545-56). After standing on the corner for about seven minutes, Gaines heard two shots and saw Clemons come out of Mr. Parrish’s house, go back in and come out again (R8. 547-48). Gaines testified that Clemons told him that Mr. Moore shot Mr. Parrish twice in the chest (R8. 549-50). Over defense objection to hearsay, Gaines was also allowed to testify that Clemons said he went back into Mr. Parrish’s house because Mr. Moore pointed a gun at him and told him they were not done yet (R8. 586-87, 591).

On cross-examination, the defense attempted to ask Gaines whether he and Clemons, armed with a gun, had confronted and chased a boy named Little Terry through the victim’s neighborhood earlier on the day the victim was shot. Defense counsel proffered the questions at sidebar, but the trial court refused to allow the bulk of the questions, saying that Gaines had already testified that he was not with Clemons at that time of day (R8. 566-68).

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Clemons testified that Mr. Moore said he and Gaines could get money from Mr. Parrish (R10. 787). According to Clemons, Mr. Moore told Gaines to be the lookout and told Clemons to go into the house with him (R10. 790). Clemons asserted the neither he nor Gaines had a gun that day (R10. 791). Clemons testified that Mr. Parrish invited him and Mr. Moore into Mr. Parrish’s house and offered them moonshine (R10. 792-93). After they tasted the moonshine, Mr. Moore pulled out a gun and asked Mr. Parrish for money (R10. 796). Mr. Parrish said nothing, and Mr. Moore shot him in the chest (R10. 796). Clemons turned to leave the house and heard a second shot (R10. 800). When Clemons started out the front door, Mr. Moore stopped him, pointed the gun at him and said, "We are not finished yet" (R10. 804). Clemons ran out the door and caught up with Gaines, who was running down the street (R10. 804).

On cross-examination, the defense attempted to ask Clemons what he did with the gun he had in his possession on the day the victim was shot (R10. 826). The trial court refused to allow the question, saying, "There is no evidence of that anywhere" (R10. 826). The defense then asked a series of questions, and Clemons admitted that he and Gaines had chased Little Terry down the street (R10. 829). However, when defense counsel followed up with the question, "Now, is it your testimony that you were not armed with a firearm at that time?", the trial court sustained an objection and refused to allow the question (R10. 828).

The State also presented the testimony of a fire arson investigator, Earl Mattox, about the origin of the fire in Mr. Parrish’s house. Mattox testified that the fire originated at two separate points in the house and was caused by arson (R10. 905). In Mattox’s opinion, the fires were set by lighting a combustible material such as clothing or paper (R10. 912).

On cross-examination, the defense asked whether any accelerants--flammable liquids such as gasoline--were present, and Mattox answered no (R10. 917-20). Defense counsel then asked the arson expert, "If you have any question at all in your mind as to whether or not some sort of flammable liquid has been used, you have available to you, do you not, the Office of the Florida Fire College Laboratories; is that right?" (R10. 920). Mattox answered yes, and defense counsel then asked, "And they have gaschromatography machines--". At this point, the State interrupted the defense with an objection as to relevance, which the trial court quickly sustained (R10. 920). Defense counsel asked to proffer the proposed questioning, but the trial court refused to allow the proffer (R10. 920). The trial court denied the defense motion for mistrial (R10. 921).

The defense presented several witnesses who provided testimony impeaching the State witnesses on questions such as Clemons’ possession of a gun on the day of the murder (R11. 1071-73, 1075-77, 1080-82, 1084-85, 1172-75, 1187-90). Mr. Moore testified that he did not kill Mr. Parrish, who was his friend (R11. 1090). Mr. Moore described his activities on the day of Mr. Parrish’s death (R11. 1091-1112). Mr. Moore testified that he saw Clemons with a gun that day (R11. 1095-96) and that he did not talk to Clemons and Gaines about robbing Mr. Parrish (R11. 1106). The defense presented other witnesses who corroborated Mr. Moore’s testimony (R11. 1158-60, 1162-64, 1165-67).

One of the charges against Mr. Moore was armed burglary. Regarding this charge, the indictment alleged:

THOMAS JAMES MOORE on the 21st day of January, 1993, . . . did unlawfully enter or remain in a structure, to-wit: a dwelling . . . with the intent to commit an offense therein, to-wit, Robbery, and while in the course of committing the offense was armed with a dangerous weapon, to-wit: a firearm, contrary to the provisions of Section 810.02, Florida Statutes.

(R1. 4). In closing at the guilt/innocence phase, the State argued that although Mr. Moore had permission to enter Mr. Parrish’s house, he committed burglary by remaining in the house without permission:

You are going to hear also about burglary. This one is a little bit tricky because the law requires that the defendant remain in a structure. It’s actually enter or remain in a structure owned by or in the possession of Mr. Johnny [Parrish]. And that he did not have the permission to enter or remain in the structure by Mr. Johnny. Mr. Johnny didn’t give him permission, and at the time of remaining in the structure he had an intent to commit a crime, robbery. Why it’s tricky is that the law says you can enter in it or remain in, and we know that this defendant was allowed to come in by Mr. Johnny. But the reason why he is guilty of burglary is because at the time that he remained in, when he pulled that gun on Mr. Johnny to get his goods from him, he no longer had Mr. Johnny’s consent to be in that residence and to harm him. And the law states that either entering or remaining in the residence with intent to commit this crime is burglary.

(R12. 1215-16). The court instructed the jury consistently with the State’s argument:

Before you can find the defendant guilty of burglary, the State must prove the following three elements beyond a reasonable doubt:

1. Thomas James Moore remained in a structure owned by or in the possession of John Edward Parrish;

2. Thomas James Moore did not have the permission or consent of John Edward Parrish, or anyone authorized to act for him, to remain in the structure at the time;

3. At the time of remaining in the structure Thomas James Moore had a fully-formed conscious intent to commit the offense of robbery in that structure.

(R13. 1359). The jury found Mr. Moore guilty of armed burglary as charged (R13. 1382).

Before trial, the defense filed a "Demand For Notice Of Intent To Rely On Hearsay" (R3. 364A-365). The motion requested that the State be required "to advise the defendant with reasonable particularity of any hearsay statements or evidence that it intends to introduce" in the penalty phase (R3. 364A). The motion pointed out that Section 921.141(1) "allows the Court to receive ‘any such evidence’ which the Court deems to ‘have probative value’ (including hearsay) providing that the defendant be afforded ‘a fair opportunity to rebut any hearsay statements’" (R3. 364A). The motion then argued that this relaxed rule regarding hearsay impaired the defense ability to prepare to rebut any hearsay evidence without notice of what that evidence would be:

2. The undersigned counsel is familiar with the limited exceptions to the prohibitions against hearsay contained in the Rules of Evidence. Accordingly, he is able to conduct discovery and prepare for trial in such fashion as to anticipate what evidence will be received. However, relaxation of the rule against hearsay wholly undermines his ability to anticipate the evidence to be presented by the State. Persons might be allowed to testify regarding matters as to which they had no direct personal knowledge.

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3. If the defendant is to have a fair opportunity to rebut such evidence, he must have notice of such hearsay well in advance of its presentation.

4. To deny this request would be to the prejudice of the defendant and would be a violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

(R3. 365). The defense argued this motion before the penalty phase began (R13. 1388-92). The court denied the motion, finding it did not have the authority to require the State to give advance notice of its evidence and noting that "there may be a relaxation of the admissibility of hearsay" (R13. 1392).

In its case at the penalty phase, the State introduced Mr. Moore’s prior convictions for armed robbery and aggravated battery (R14. 1458-59). After introducing the convictions into evidence, the State called Detective Goff, a detective with the Duval County Sheriff’s Office. Over a defense hearsay objection, the State was permitted to elicit testimony regarding the victim of the armed robbery: "This was a white female, 23 years old, named Cynthia Hyman that was robbed on that date" (R14. 1452). Detective Goff further explained, "Yes, Cynthia Hyman identified Thomas Moore as being the suspect with the pistol" (R14. 1452). In cross-examination, Detective Goff acknowledged that Mr. Moore was 15 years old at the time of the armed robbery and that he was in the company of two others, one who was "a few days younger" than Mr. Moore and another "who was 17" (R14. 1453).

In closing argument, the State then urged the jury to find the prior violent felony conviction aggravator, arguing, "[t]he defendant has been previously convicted of another capital offense, or of a felony involving the use of threat of violence to some person" (R14. 1525). To support this aggravator, the State relied upon the judgments and sentences it had introduced into evidence and upon Detective Goff’s testimony (R14. 1525-26). The State pointed out to the jury that the judgment and sentence from the armed robbery revealed that Mr. Moore "was given a chance at that young age to be placed on community control. And that was the sentence for this crime" (R14. 1525). The State then observed that Mr. Moore "violated that community control" when he was convicted of aggravated assault on April 23, 1991 (R14. 1525). The State placed emphasis upon the prior convictions as aggravating circumstances, arguing, "Two prior violent felonies committed by this defendant before he was 19 years old. The legislature says that is aggravation. That is a reason that you can recommend the death penalty against Thomas Moore" (R14. 1526).

GROUNDS FOR HABEAS CORPUS RELIEF

CLAIM I

MR. MOORE’S CONVICTION FOR ARMED BURGLARY VIOLATES HIS RIGHTS TO DUE PROCESS AND TO NOTICE AND A MEANINGFUL OPPORTUNITY TO BE HEARD, AS WELL AS THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

In State v. Ruiz, 863 So. 2d 1205 (Fla. 2003), this Court announced that Delgado v. State, 776 So. 2d 233 (Fla. 2000), applied to conduct which occurred prior to February 1, 2000. Id. at 1212. Under Ruiz, a burglary conviction based upon conduct occurring before February 1, 2000, must be vacated when "initial entry into the victim’s residence was consensual and there was no evidence . . . of a burglary other than the commission of crimes within the residence." Ruiz, 863 So. 2d at 1208. Put another way, "evidence of a crime committed inside dwelling . . . of another cannot, in and of itself, establish the crime of burglary." Id. at 1211. This is the situation in Mr. Moore’s case: the entry into Mr. Parrish’s home was consensual, and there is no evidence of burglary other than the crimes committed in the home. The State conceded as much in its closing argument, and the court instructed the jury that the basis of the burglary charge was "remaining in" (R13. 1359). Under Ruiz, Mr. Moore is entitled to a new trial.

In Delgado v. State, 776 So. 2d 233 (Fla. 2000), a first degree murder conviction arose from a 1990 double homicide. The State had presented alternative theories of premeditation and felony murder to the jury. The underlying felony supporting the felony murder theory was burglary. "The State prosecuted this case on the premise that appellant’s entry into the victims’ home was consensual (i.e. appellant was invited to enter the victims’ home) but at some point, this consent was withdrawn." Delgado, 776 So. 2d at 236. This Court discussed the historical definition of the crime of burglary. The Court noted the particular problems associated with the definition of the crime as it related to those who had entered the premises with consent and concluded, "the ‘remaining in’ language applies only in situations where the remaining in was done surreptitiously." Id. at 240. The Court remanded the case for a new trial.

The Court later returned to the issue in yet another capital case. Fitzpatrick v. State, 859 So. 2d 486 (Fla. 2003). At issue there was a first degree murder conviction arising from a 1980 homicide. Mr. Fitzpatrick was tried in 2000, after the original release of the decision in Delgado. The State prosecuted Mr. Fitzpatrick on both premeditated and felony murder theories. The underlying felonies relied upon by the State were burglary and robbery. Because the evidence established that the entry into the victim’s home was consensual but did not establish that the defendant remained in the home surreptitiously, the Court reversed the burglary conviction and ordered a new trial on the basis of Delgado.

In Delgado, this Court stated, "This opinion will not, however, apply retroactively to convictions that have become final" because the case "does not meet the second or third prongs" of Witt v. State, 387 So. 2d 922, 928-31 (Fla. 1980). Delgado, 776 So. 2d at 241. However subsequently in Ruiz, the Court held that the statutory construction from Delgado applied to cases involving criminal conduct which occurred before February 1, 2000. Ruiz, 863 So. 2d at 1211-12.

Despite this Court’s statement in Delgado that the decision would not be applied retroactively, Mr. Moore is entitled to relief because Ruiz and Fitzpatrick now establish that his conviction stands in violation of the Due Process Clause. The burglary statute has now been construed by this Court as to a 1980 homicide (Fitzpatrick) and a 1990 homicide (Delgado), as well as to 1995 and 1998 noncapital cases (Ruiz), in a fashion which is inconsistent with its application in Mr. Moore’s case, a case arising from a 1993 homicide. The Court has now announced that the definition of the "remaining in" language of the burglary statute first discussed in Delgado applies to cases in which the criminal conduct occurred prior to February 1, 2000. Ruiz including criminal conduct in 1980 (Fitzpatrick). In these circumstances, Mr. Moore is entitled to the benefit of Delgado because Delgado’s definition of "remaining in" applied at the time of the conduct leading to Mr. Moore’s convictions. Bunkley v. Florida, 538 U.S. 835 (2003).

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In Bunkley, the defendant was convicted of armed burglary on the basis that he had been armed with a dangerous weapon, a pocket knife with a 2.5- to 3-inch long blade. In 1997, this Court determined that a common pocket knife with a blade which was 3.75 inches long did not qualify as a "dangerous weapon," as that term was used in the burglary statute. L. B. V. State, 700 So. 2d 370, 373 (Fla. 1997). Mr. Bunkley petitioned for post-conviction relief, arguing that his pocketknife did not qualify as a "weapon" under L.B. and that therefore his conviction was invalid. However, this Court described L.B. as an evolutionary refinement and refused to grant Mr. Bunkley relief. The United States Supreme Court reversed, requiring this Court to explain what the law was at the time of Bunkley’s crime. As the United States Supreme Court indicated, Fiore v. White, 531 U.S. 225 (2001), would require the grant of relief if Florida law at the time of the Bunkley’s crime (i.e. 1989) exempted common pocketknives from the definition of a dangerous weapon. Bunkley v. Florida, 538 U.S. at 840-42.

In Fiore, the United States Supreme Court addressed "whether Pennsylvania can, consistent with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit." Mr. Fiore was charged and convicted of operating a hazardous waste facility. After his conviction, the Pennsylvania Supreme Court had construed the statute under which Mr. Fiore was convicted to require the State to prove the failure to possess a permit as an element of the crime. The United States Supreme Court found that since there was no evidence to prove this element of the crime, the Due Process Clause was offended by Mr. Fiore’s continued incarceration. Id. at 229.

In Bousley v. United States, 523 U.S. 614, 620 (1998), the Supreme Court noted that retroactivity issues were inapplicable to "the meaning of a criminal statute enacted by [the legislature]." The Due Process Clause requires the State of Florida to consistently apply its burglary statute and the definition of the crime of burglary contained therein. Given that this Court has ruled on the meaning of the burglary statute as to all cases in which the crime occurred before February 1, 2000, Ruiz, Mr. Moore is entitled to the same ruling on the same burglary statute in his criminal prosecution on the charge that he committed a burglary under that statute in 1993. Under Bunkley, Mr. Moore’s conviction may not be permitted to stand under the United States Constitution.

This Court has explained its understanding of Fiore; it requires a "clarification" in the criminal law to "be applied in all cases." State v. Klayman, 835 So. 2d 248, 252 (Fla. 2002). The Court explained:

It thus is clear under Fiore that, if a decision of a state’s highest court is a clarification in the law, due process considerations dictate that the decision be applied in all cases, whether pending or final, that were decided under the same version (i.e., the clarified version) of the applicable law. Otherwise, courts may be imposing criminal sanctions for conduct that was not proscribed by the state legislature.

Although Florida courts have not previously recognized the Fiore distinction between a "clarification" and "change," we concude that this distinction is beneficial to our analysis of Florida law. Previously, this Court analyzed such cases strictly under Witt v. State, 387 So. 2d 922 (Fla. 1980), and used the term "change" broadly to include what in fact were both clarifications and true changes. As explained in Fiore, however, a simple clarification in the law does not present an issue of retroactivity and thus does not lend itself to a Witt analysis. Whereas Witt remains applicable to "changes" in the law, Fiore is applicable to "clarifications" in the law.

Klayman, 835 So. 2d at 252-53 (footnotes omitted).

Given this Courts decisions in Ruiz and Fitzpatrick, the resulting "clarification" of the law must be applied to all cases, whether pending or final. In Klayman, this Court defined a "clarification" is "a decision of this Court that says what the law has been since the time of enactment." Klayman, 835 So. 2d at 253. The Court cited several cases as examples of "clarifications" and explained:

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In the above cases, the Legislature used language that was intended to be clear on its face. The problem in those cases arose when lower courts construed the statutory language in a manner that was contrary to legislative intent. The key consideration is that, in construing the statutes contrary to legislative intent, the courts imposed criminal sanctions without statutory authority--i.e., they imposed criminal sanctions where none were intended. The rulings thus violated the Due Process Clause and all defendants convicted or sentenced without statutory authority were entitled to relief.

Klayman, 835 So. 2d at 254 (footnote omitted).

In Ruiz and Fitzpatrick, this Court did not consider whether the Delgado construction of Florida’s burglary statute involved a "clarification" of the law or a "change" in the law. Under the Klayman definition of "clarification" and under Bunkley, the construction of "remaining in" adopted in Ruiz, Fitzpatrick, and Delgado was a "clarification" of the law. In Delgado, the Court stated that the question before it was "whether the Legislature intended to criminalize the particular conduct in this case as burglary when it added the phrase ‘remaining in’ to the burglary statute." 776 So. 2d at 239-40. The Court concluded that "the ‘remaining in’ language applies only in situations where the remaining in was done surreptitiously" and then stated, "this interpretation is consistent with the original intention of the burglary statute." Delgado, 776 So. 2d at 240. This construction of the burglary statute was followed in Ruiz and Fitzpatrick. Thus, clearly the Court’s analysis applied "since the time of enactment" of the statute, or at least since 1980, the date of the criminal conduct at issue in Fitzpatrick. Klayman, 835 So. 2d at 253.

Further, in Delgado, the Court discussed prior opinions which had construed "remaining in" differently. Delgado, 776 So. 2d at 238-39, citing, Raleigh v. State, 705 So. 2d 1324 (Fla. 1997); Jimenez v. State, 703 So. 2d 437 (Fla. 1997); Robertson v. State, 699 So. 2d 1343 (Fla. 1997). These cases had followed the reasoning of Ray v. State, 522 So. 2d 963 (Fla. 3d DCA 1988), which the Court also discussed. Delgado, 776 So. 2d at 240. After defining "remaining in" as requiring a surreptitious remaining in, the Court receded from Robertson, Jimenez and Raleigh because "the Ray doctrine leads to an absurd result." Delgado, 776 So. 2d at 241. Thus, the Court receded from prior cases which had "constru[ed] the statute[] contrary to legislative intent." Klayman, 835 So. 2d at 254.

The construction of the burglary statute followed in Ruiz, Fitzpatrick, and Delgado, meets Klayman’s definition of "clarification." It therefore must be applied to Mr. Moore’s case because Mr. Moore received "criminal sanctions without statutory authority." Klayman, 835 So. 2d at 254. "Florida courts have held that imposition of criminal sanctions without statutory authority is fundamental error." Klayman, 835 So. 2d at 254 n.12 (citing cases).

Given Ruiz and Fitzpatrick, the failure to apply the burglary statute consistently and uniformly would establish that Mr. Moore’s conviction and sentence of death are the product of the kind of arbitrariness that offends the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238 (1972). While other defendants have received the benefit of the correct construction of the burglary statute, Mr. Moore has arbitrarily been denied that benefit.

Moreover, failure to apply the construction of the burglary statute followed in Ruiz, Fitzpatrick, and Delgado to Mr. Moore’s case would offend procedural due process as well. "An essential principle of due process is that a deprivation of life, liberty or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’" Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). "[F]undamental fairness is the hallmark of the procedural protections afforded by the Due Process Clause." Ford v. Wainwright, 477 U.S. 399, 424 (1986)(Powell, J., concurring in part and concurring in the judgment). Given the arbitrary and capricious application of the burglary statute, Mr. Moore was not given the benefit of procedural due process. In defending against the charge, he was not advised of the State’s burden under the statute as explained in Ruiz, Fitzpatrick, and Delgado.

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Because his burglary conviction is invalid, Mr. Moore is entitled to a new trial. Mr. Moore was prosecuted for first-degree murder under both premeditated and felony murder theories. The State argued both theories (R12. 1213-14), and argued that either attempted robbery or burglary could provide the basis for felony murder (R12. 1214). The jury was instructed on both of these theories and was instructed that attempted robbery and/or burglary could form the basis for a felony murder conviction (R13. 1346-48). The jury returned a general verdict finding Mr. Moore guilty of first-degree murder (R13. 1346-48, 1381).

In these circumstances, the invalidity of Mr. Moore’s burglary conviction requires vacating his first-degree murder conviction. Yates v. United States, 354 U.S. 298 (1957); Fitzpatrick v. State, 859 So. 2d at 490-91. The identical factual scenario occurred in Fitzpatrick: the defendant was prosecuted on theories of premeditated and felony murder, with robbery and burglary as the underlying felonies, and the jury returned a general verdict finding him guilty of first-degree murder. Id. at 490. Based upon Yates, this Court reversed the first-degree murder conviction because "t is well established that a general jury verdict cannot stand where one of the theories of prosecution is legally inadequate." Id. The Court explained that Yates clearly applied to the factual scenario in Fitzpatrick’s case:

Here, the question is whether reversal is required where the jury was instructed on premeditated murder and felony murder, and where felony murder, in turn, was based on alternate underlying felonies, one of which is legally insufficient. We hold that the extra analytical step required in the instant case does not alter the impact of the Yates rule. We have before us a multi-part theory of prosecution, one part of which is legally inadequate, and a general jury verdict. From this information, we cannot possibly discern whether the jury convicted Fitzpatrick based on the legally sufficient grounds of premeditated murder or felony murder based on robbery, or the inadequate charge of felony murder based on burglary. It is precisely this type of uncertainty that Yates rejects. We are therefore compelled to reverse Fitzpatrick’s conviction, vacate his sentence, and remand the case for a new trial.

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Fitzpatrick, 859 So. 2d at 490. Since Mr. Moore’s case presents this identical factual scenario, he, too, is entitled to a new trial.

CLAIM II

MR. MOORE’S RIGHT OF CONFRONTATION WAS VIOLATED AT THE PENALTY PHASE OF HIS CAPITAL TRIAL, IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

In Crawford v. Washington, 2004 U.S. Lexis 1838 (2004), the United States Supreme Court announced:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law–as does [Ohio v.] Roberts, [448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with the closest kinship to the abuses at which the Confrontation Clause was directed

In this case, the State admitted Sylvia’s testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actual prescribes: confrontation.

Crawford, 2004 U.S. Lexis 1838 at *52-54 (emphasis added). The significance of the Supreme Court’s pronouncement was underscored when the Court concluded that as to testimonial hearsay, the Court’s own rationale in Ohio v. Roberts deviated from "the historical principles" upon which the Confrontation Clause rested. Id. at *39. The Court further called into question its decision in White v. Illinois, 502 U.S. 346 (1992). Id. at *40 ("Although our analysis in the case casts doubt on that holding, we need not definitively resolve whether it survives our decision today"). Thus, the Supreme Court in Crawford discarded the notion that the Confrontation Clause could be satisfied where rules of evidence permitted the introduction of testimonial hearsay.

In Mr. Moore’s case, the State presented testimonial hearsay at the penalty phase of his capital proceedings in contravention of Mr. Moore’s constitutional right to confront his accusers, as Crawford now makes clear. In Crawford, the prosecution introduced a statement given to law enforcement by the defendant’s wife, who did not testify at trial because of the marital privilege. At Mr. Moore’s penalty phase, the State was permitted to present the testimony of a police officer regarding what witnesses had said about the facts and circumstances underlying prior convictions that the State was presenting as aggravating circumstances. Further, the State was permitted to go beyond the fact that Mr. Moore was previously convicted and argue other facts contained in the judgments and sentences which the State introduced. These occurrences were in clear violation of the Confrontation Clause, as explained by the Supreme Court in Crawford.

A. THIS COURT’S CASELAW ALLOWING THE INTRODUCTION OF HEARSAY AGAINST A CRIMINAL DEFENDANT AT A CAPITAL PENALTY PHASE IS WRONG UNDER CRAWFORD.

This Court has recognized that the Confrontation Clause applies at a capital penalty phase. In Engle v. State, 438 So. 2d 803 (Fla. 1983), this Court reversed a death sentence stating

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The sixth amendment right of an accused to confront the witnesses against him is a fundamental right which is made obligatory on the states by the due process clause of the fourteenth amendment to the United States Constitution. Pointer v. Texas, 380 U.S. 400 (1965). The primary interest secured by, and the major reason underlying the confrontation clause, is the right of cross-examination. Pointer v. Texas. This right of confrontation protected by cross-examination is a right that has been applied to the sentencing process. Sprecht v. Patterson.

In Bruton v. United States, 391 U.S. 123 (1968), it was held that a statement or confession of a co-defendant which implicates an accused is not admissible against the accused unless he has an opportunity to confront and cross-examine the co-defendant. To admit such a statement is unquestioned error.

Engle, 438 So. 2d at 814.

Subsequently, this Court found a Confrontation Clause violation in Walton v. State, 481 So. 2d 1197 (Fla. 1985). There, this Court relied upon the decision in Engle when it ordered a new penalty phase proceeding:

Appellant contends he was denied his right to confront witnesses against him in the penalty phase of his trial in violation of our decision in Engle v. State, 438 So. 2d 803 (Fla. 1983), cert. denied 465 U.S. 1074 (1984), because the confessions of the codefendants Cooper and McCoy were presented to the jury and considered by the judge in imposing sentence, without Cooper and McCoy being available for cross-examination. We agree with this contention and find that a new penalty trial before a new jury is required.

Walton, 481 So. 2d at 1200.

Similarly, a Confrontation Clause violation was found on the basis of Engle when the State introduced a taped statement of the victim in a prior felony conviction of the defendant during the penalty phase proceedings. Rhodes v. State, 547 So. 2d 1201, 1204 (Fla. 1989). For this constitutional error, this Court ordered a new penalty phase proceeding.

Most recently, this Court relied on Engle to find a confrontation violation when the trial court admitted the deposition testimony of a co-felon at a capital sentencing hearing. Donaldson v. State, 722 So. 2d 177, 186 (Fla. 1998). Since the penalty phase was reversed on other grounds, the Court addressed the Confrontation Clause issue to give the parties guidance on remand.

Despite recognizing that the Confrontation Clause applies at the penalty phase, this Court has allowed the State to present just the kind of hearsay which was introduced in Mr. Moore’s penalty phase. Thus, the Court has repeatedly held that the testimony of police officers regarding the facts of a prior conviction, including the statements of victims and other witnesses, is admissible at a penalty phase. Bowles v. State, 804 So. 2d 1173, 1184 (Fla. 2001); Rodriguez v. State, 753 So. 2d 29, 44-45 (Fla. 2000); Hudson v. State, 708 So. 2d 256, 261 (Fla. 1998); Clark v. State, 613 So. 2d 412, 415 (Fla. 1992); Long v. State, 610 So. 2d 1268, 1274-75 (Fla. 1992); Waterhouse v. State, 596 So. 2d 1008, 1016 (Fla. 1993); Chandler v. State, 534 So. 2d 701, 702-03 (Fla. 1988); Tompkins v. State, 502 So. 2d 415, 419-20 (Fla. 1986); Perri v. State, 441 So. 2d 606, 608 (Fla. 1983). The Court’s reasoning in all of these cases is that such hearsay is admissible "provided the defendant has a fair opportunity to rebut it" and that this opportunity is provided because the defendant can cross-examine the police officer and/or present separate evidence rebutting the officer’s testimony. See, e.g., Chandler, 534 So. 2d at 703.

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The caselaw allowing the admission of hearsay against a capital defendant rests upon a misapprehension regarding the meanings of hearsay and confrontation under the federal Confrontation Clause. That misapprehension is clear in light of Crawford.

In Crawford, the Supreme Court explained "the original meaning of the Confrontation Clause." 2004 U.S. Lexis 1838 at *12. The Court examined the history of the Confrontation Clause and concluded, "Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless." Id. at *26-27. Thus, the Confrontation Clause "applies to ‘witnesses’ against the accused--in other words, those who ‘bear testimony.’" Id. at *27. This definition of "ex parte testimony" encompasses "tatements taken by police officers." Id. at *29.

Reviewing the history of the Confrontation Clause also led the Supreme Court to a second conclusion: "the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford, 2004 U.S. Lexis 1838 at *31. This is the only exception to the Confrontation Clause, and there are no "open-ended exceptions from the confrontation requirement to be developed by the courts." Id.

The Supreme Court concluded that the hearsay exceptions and trustworthiness test described in Ohio v. Roberts, 448 U.S. 56 (1980), "depart[] from the historical principles identified above" because Roberts was both "too broad" and "too narrow." Crawford, 2004 U.S. Lexis 1838 at *39. In its "too narrow" application--which is relevant to Mr. Moore’s case--the Roberts test "admits statements that do consist of ex parte testimony upon a mere finding of reliability. This malleable standard often fails to protect against paradigmatic confrontation violations." Id. (emphasis in original). Thus, the Court held that when a State admits an out-of-court testimonial statement against a criminal defendant and the defendant has no opportunity to cross-examine the witness who made the statement, "[t]hat alone is sufficient to make out a violation of the Sixth Amendment" because "[w]here testimonial statements are at issue, the only indicum of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at *54.

B. TESTIMONIAL HEARSAY WAS PRESENTED AT THE PENALTY PHASE.

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This Court’s reliance upon the fact that the Florida capital sentencing statute allows the admission of hearsay at the penalty phase is erroneous under Crawford. Under Crawford, any admission of "ex parte testimony" violates the Confrontation Clause.

Detective Goff’s testimony at Mr. Moore’s penalty phase falls within the definition of "ex parte testimony." Detective Goff testified that the victim of the armed robbery "was a white female, 23 years old, named Cynthia Hyman that was robbed on that date" (R14. 1452). Detective Goff further explained, "Yes, Cynthia Hyman identified Thomas Moore as being the suspect with the pistol" (R14. 1452). This testimony could only have been based upon statements made by Cynthia Hyman and was therefore "ex parte testimony" under the Confrontation Clause.

Further, in closing argument, the State pointed out statements contained in the prior judgments and sentences beyond the bare fact that Mr. Moore was previously convicted of these offense. The State pointed out to the jury that the judgment and sentence from the armed robbery revealed that Mr. Moore "was given a chance at that young age to be placed on community control. And that was the sentence for this crime" (R14. 1525). The State then observed that Mr. Moore "violated that community control" when he was convicted of aggravated assault on April 23, 1991 (R14. 1525). This evidence also constituted testimonial hearsay which Mr. Moore was not permitted to confront.

It is not sufficient under the Sixth Amendment that Mr. Moore was permitted to cross-examine Detective Goff, the mouthpiece through whom the hearsay statements of Cynthia Hyman were admitted, or that he had some illusory "opportunity to rebut" the statements in the judgments and sentences. According to Crawford, any admission of "ex parte testimony" violates the Confrontation Clause. The detective’s testimony and the statements in the judgments and sentences introduced at Mr. Moore’s penalty phase fall within the definition of "ex parte testimony."

That inculpating statements are given in a testimonial setting is not an antidote to the confrontation problem, but rather the trigger that makes the Clause’s demand most urgent. It is not enough to point out that most of the usual safeguards of the adversary process attend the statement, when the single safeguard missing is the one the Confrontation Clause demands.

Crawford, 2004 U.S. LEXIS 1838 at *48 (emphasis added).

The Supreme Court has clearly concluded that the admission of a testimonial hearsay statement "alone is sufficient to make out a violation of the Sixth Amendment." Id. at *54. The Court explained, "[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." Id. at *43. Yet, this is what happened here. Mr. Moore was denied the right to confront the actual witnesses against him.

C. CRAWFORD APPLIES RETROACTIVELY UNDER WITT V. STATE.

Mr. Moore also submits that Crawford meets the criteria for retroactive application set forth in Witt v. State, 387 So. 2d 922 (Fla. 1980). Crawford issued from the United States Supreme Court. Witt, 387 So. 2d at 930. Crawford’s Sixth Amendment rule unquestionably "is constitutional in nature." Witt, 387 So. 2d at 931. Crawford "constitutes a development of fundamental significance." Witt, 387 So. 2d at 931.

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As to what "constitutes a development of fundamental significance," Witt explains that this category includes "changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall [v. Denno, 388 U.S. 293 (1967),] and Linkletter [v. Walker, 381 U.S. 618 (1965)]," adding that "Gideon v. Wainwright . . . is the prime example of a law change included within this category." 387 So. 2d at 929.

The rule of Crawford is the kind of "sweeping change of law" described in Witt. In Witt, this Court explained that the doctrine of finality must give way when fairness requires retroactive application:

The doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications. Thus, society recognizes that a sweeping change of law can so drastically alter the substantive or procedural underpinnings of a final conviction and sentence that the machinery of post-conviction relief is necessary to avoid individual instances of obvious injustice. Considerations of fairness and uniformity make it very "difficult to justify depriving a person of his liberty or his life, under process no longer considered acceptable and no longer applied to indistinguishable cases."

Witt, 387 So. 2d at 925 (footnote omitted).

Crawford meets the Witt test. First, the purpose of the rule is to return to the intent of the Framers and restore to the law the core values of the Confrontation Clause. When a capital defendant has been subjected to a trial and sentencing proceeding in which he has been denied the right to confront the witnesses against him, the Confrontation Clause is robbed of its purpose. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." Crawford, 2004 U.S. LEXIS 1838 at *43. A radical defect in the process intended by the Framers has been permitted which necessarily "cast serious doubt on the veracity or integrity of the . . . trial proceeding." Witt, 387 So. 2d at 929.

Second, "the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford, 2004 U.S. LEXIS 1838 at *31. Inadvertently but nonetheless harmfully, the United States Supreme Court lapsed for a time and enfeebled the right of confrontation through its rulings in Ohio v. Roberts. The Court’s retrenchment has restored the right to confrontation as a "fundamental" guarantee of the United States Constitution. Therefore, Crawford should be applied retroactively.

D. CONCLUSION

In the unanimous opinion of the Supreme Court in Sullivan v. Louisiana, 508 US. 275 (1993), the Court said, "the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt." Id. 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.

Sullivan, 508 U.S. at 278. Given the analogy to the right to trial by jury provided by the United States Supreme Court in Crawford, the principle of Sullivan should apply here.

It is clear that although this Court has recognized that the Confrontation Clause indeed applies at capital sentencing proceedings in Florida, this Court has failed to understand the intent of the Framers of the Constitution and correctly apply the Confrontation Clause at Florida capital penalty phases. This Court must revisit its prior decisions in light of Crawford and grant Mr. Moore a new penalty phase at which the Confrontation Clause will be honored.

CLAIM III

IN LIGHT OF CRAWFORD V. WASHINGTON, THIS COURT SHOULD REVISIT MR. MOORE’S DIRECT APPEAL CLAIMS THAT LIMITATIONS ON CROSS-EXAMINATION DEPRIVED HIM OF HIS RIGHT TO CONFRONTATION.

On direct appeal, Mr. Moore challenged the trial court’s limitations on defense cross-examination of three witnesses: Vincent Gaines, Carlos Clemons and Earl Mattox. The issues regarding Gaines and Clemons were raised in the first argument of Mr. Moore’s initial brief, and the issue regarding Mattox was raised in the second argument. Moore v. State, 701 So. 2d at 548. This Court addressed the arguments regarding these three witnesses together and rejected them, "find[ing] no abuse of discretion." Id. at 549.

In light of Crawford v. Washington, 2004 U.S. Lexis 1838 (2004), this Court should revisit Mr. Moore’s arguments regarding limitations on cross-examination. Although Crawford does not directly involve such limitations, it does make clear that the right to cross-examination is a fundamental constitutional right under the Sixth Amendment--a right which is therefore not subject to an abuse of discretion standard of review.

Crawford holds that testimonial hearsay is not admissible unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. 2004 U.S. LEXIS 1838 at *53. The opportunity for cross-examination is the key to the confrontation right: denial of cross-examination "alone is sufficient to make out a violation of the Sixth Amendment." Id. at *54.

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In his direct appeal, Mr. Moore contended that he was denied his right to cross-examine three witnesses. Denial of cross-examination of a witness who testifies at trial is not logically different from denial of cross-examination of a witness who does not testify at trial. Mr. Moore’s claims should therefore have been reviewed de novo, rather than under an abuse of discretion standard. See Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999).

Reviewed de novo, Mr. Moore’s Confrontation Clause claims entitle him to relief. Defense counsel attempted to ask Clemons and Gaines questions about chasing Little Terry and about Clemons possessing a gun on the day of Mr. Parrish’s murder. The incident in which Gaines and Clemons chased Little Terry through the neighborhood with a gun was critial to the defense theory that Clemons, not Mr. Moore, killed Mr. Parrish and that Gaines and Clemons were lying (R12. 1260). The incident also was crucial for impeachment since Gaines denied the incident took place (R8. 568-69), while Clemons admitted chasing Little Terry but denied having a gun (R10. 829), and witness Willie Reese said Gaines and Clemons chased Little Terry but did not mention whether or not they had a gun (R9. 609-13). Mr. Moore testified that Gaines and Clemons chased Little Terry with a gun (R11. 1094). Little Terry testified that Gaines and Clemons chased him and that Clemons started to pull out a gun (R12. 1189-90). The trial court’s limitations on cross-examination denied the defense the opportunity to develop the defense theory and to present impeachment.

The defense attempted to cross-examine fire arson investigator Earl Mattox regarding the absence of accelerants in the fire and the scientific methods of ensuring that no accelerants were used. These questions were crucial to impeaching the credibility of State witness Christopher Shorter, who testified that Mr. Moore confessed he had killed Mr. Parrish (R11. 1000). Shorter claimed that Mr. Moore said he had used a lawn mower in the house to set the fire, taking the top off the mower and using the gasoline as an accelerant (R11. 1003).

The best way for the defense to show that Shorter was lying was to establish conclusively through Mattox that the fire was not started with gasoline from a lawn mower. However, the trial court cut off the cross-examination of Mattox, leaving the defense unable to attack Shorter’s credibility.

The testimony about Gaines and Clemons chasing Little Terry, about Clemons possessing a gun on the day of Mr. Parrish’s death and about the lack of accelerants was related to the defense theory and was also crucial impeachment evidence. The trial court’s limitations on cross-examination "alone [are] sufficient to make out a violation of the Sixth Amendment." Crawford, 2004 U.S. LEXIS 1838 at *54. This Court should revisit these direct appeal issues and order a new trial.

CLAIM IV

BASING AN AGGRAVATING CIRCUMSTANCE ON A PRIOR CONVICTION FOR CRIMINAL ACTIVITY COMMITTED WHEN MR. MOORE WAS FIFTEEN YEARS OLD VIOLATES BRENNAN V. STATE, 754 SO. 2D 1 (FLA. 1999), AND THE EIGHTH AND FOURTEEN AMENDMENTS OF THE UNITED STATES CONSTITUTION.

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At the penalty phase, the State introduced a prior conviction of armed robbery for criminal activity committed by Mr. Moore when he was fifteen years old. Aggravating circumstances--which include the aggravator based upon a prior conviction of a violent felony--are elements of the offense of capital murder. Ring v. Arizona, 122 S. Ct. 2428, 2443 (2002). Thus, the crime of capital first degree murder under Ring include as part of the crime those acts committed which establish the basis of the aggravating circumstance. In Mr. Moore’s case, the State relied upon Mr. Moore’s acts at the age of fifteen (15) to establish the prior conviction of a crime of violence aggravating circumstances. The use of a prior conviction premised upon acts committed by the defendant when he was under the age of seventeen violates Brennan v. State, 754 So. 2d 1, 30 (Fla. 1999), and the Eighth Amendment.

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. The United States Supreme Court has addressed the Eighth Amendment and explained its dynamic character:

Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gives it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to approach immortality as nearly human institutions can approach it."

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The [cruel and unusual punishment clause], in the opinion of the learned commentators, may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.

Weems v. United States, 217 U.S. 349, 373, 378 (1910). When the Supreme Court addressed whether the Eighth Amendment precluded the execution of those who were 17 years of age at the time they committed a capital offense, the plurality explained:

When this Court cast loose from the historical moorings consisting of the original application of the Eighth Amendment, it did not embark rudderless upon a wide-open sea. Rather, it limited the Amendment’s extension to those practices contrary to the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S., at 101 (plurality opinion)(emphasis added).

Stanford v. Kentucky, 492 U.S. at 378-79 (plurality

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One measure of the evolving standards of decency that has been repeatedly used by the Supreme Court has been whether a national consensus against the imposition of a particular punishment in particular circumstances exists. Ford v. Wainwright, 477 U.S. at 406 ("this Court takes into account objective evidence of contemporary values before determining whether a particular punishment comports with the fundamental human dignity that the Amendment protects"). First among the "objective indicia that reflect the public attitude toward a given sanction" are statutes passed by society’s elected representatives. McCleskey v. Kemp, 481 U.S. 279, 300 (1987), quoting Gregg v. Georgia, 408 U.S. 153, 173 (1976). Such a legislative review enables a court "to determine whether our Nation has set its face against a punishment to an extent that it can be concluded that the punishment offends our ‘evolving standards of decency.’" Stanford, 492 U.S. at 383 (Brennan, J., dissenting),quoting Trop, 356 U.S. at 101. The majority in Stanford stated, "As far as the primary and most reliable indication of consensus is concerned--the pattern of enacted laws--petitioners have failed to [establish a national consensus against the execution of an individual who was 17 at the time of the commission of the capital offense]." 492 U.S. at 373.

In Enmund v. Florida, 458 U.S. 782 (1982), the Supreme Court addressed whether the Eighth Amendment precluded a state from executing an individual who merely aided and abetted in a felony, in the course of which a homicide occurred. In concluding that the Eighth Amendment precluded a sentence of death in such circumstances, where the condemned did not kill, attempt to kill, or intend to kill, this Court explained:

The Coker [v. Georgia, 433 U.S. 584 (1977)] plurality observed that "t no time in the last 50 years have a majority of the States authorized death as a punishment for rape." Id., at 593. More importantly, in reenacting death penalty laws in order to satisfy the criteria established in Furman v. Georgia, 408 U.S. 238 (1972), only three States provided the death penalty for the rape of an adult woman in their revised statutes. 433 U.S., at 594. The plurality therefore concluded that "[t]he current judgment with respect to the death penalty for rape is not wholly unanimous among state legislatures, but it is obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman." Id. 433 U.S., at 596 (footnote omitted).