IN THE SUPREME COURT OF THE STATE OF FLORIDA
CASE NO. SC10-529 L.T. CASE NO. 4D07-3420 STATE OF FLORIDA, Petitioner, vs. MARK BARROW, Respondent.
PETITIONER'S REPLY BRIEF ON THE MERITS
BILL MCCOLLUM Attorney General Tallahassee, Florida JAMES J. CARNEY Sr. Assistant Attorney General Florida Bar Number 475246 DANIEL P. HYNDMAN Assistant Attorney General Florida Bar No. North Flagler Drive Suite 900 West Palm Beach, Florida 33401 Telephone: (561) 837-5000 Counsel for Petitioner
TABLE OF CONTENTS TABLE OF CITATIONS..ii PRELIMINARY STATEMENT..1 STATEMENT OF THE CASE AND FACTS..2 SUMMARY OF THE ARGUMENT...3 ARGUMENT..4 THE FOURTH DISTRICT ERRONEOUSLY IMPOSED A BURDEN ON TRIAL COURTS TO INFORM JURIES THAT THEY MAY REQUEST READ BACKS OF TESTIMONY (ALTHOUGH A TRIAL COURT MAY DENY SUCH REQUESTS WITHOUT MUCH CONSIDERATION); THE DECISION OF THE FOURTH DISTRICT SHOULD BE REVERSED; CONFLICT SHOULD BE RESOLVED IN FAVOR OF THE THIRD DISTRICTS DECISION IN HAZURI CONCLUSION. 12 CERTIFICATE OF TYPE SIZE...13 CERTIFICATE OF SERVICE..13
TABLE OF AUTHORITIES CASELAW Avila v. State, 781 So. 2d 413 (Fla. 4th DCA 2001). 6 Barrow v. State, 27 So. 3d 211 (Fla. 4th DCA 2010). passim Crain v. State, 894 So.2d 59 (Fla. 2004). 10, 11 DeCastro v. State, 360 So. 2d 474 (Fla. 3d DCA 1978). 9 Francis v. State, 808 So. 2d 110 (Fla. 2001). 5, 9 Hazuri v. State, 23 So. 3d 857 (Fla. 3d DCA 2009). 3, 5, 8 Mackerly v. State, 754 So.2d 132 (Fla. 4th DCA 2000). 11 Meyers v. State, 704 So.2d 1368 (Fla. 1997). 9 McKee v. State, 712 So. 2d 837 (Fla. 2d DCA 1998). 5 People v. Butler, 47 Cal.App.3d 273 (Cal App. 1975). 7 Roper v. State, 608 So. 2d 533 (Fla. 5th DCA 1992). 6 Shenfeld v. State, 44 So.3d 96 (Fla. 2010). 4, 9 State v. Hebert, 455 A.2d 925 (Me. 1983). 6
State v. Lindsey, 738 So.2d 974 (Fla. 5th DCA 1999). 10, 11 State v. Spaulding, 296 N.W.2d 870 (Minn. 1980). 7 Sutton v. State, 51 So.2d 725 (Fla. 1951). 5 Thompson v. State, 990 So.2d 482 (Fla. 2008). 4, 9
RULES Rule 3.410, Fla. R. Crim. P. 8
PRELIMINARY STATEMENT Petitioner was the prosecution and Respondent was the
defendant in the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. Petitioner was the Appellee, and Respondent was the Appellant in the Fourth District Court of Appeal (Fourth District). The parties will be referenced as they appear before this Court. The Petitioner may also be referenced as the State, and
the Respondent may also be referenced as Barrow.
STATEMENT OF THE CASE AND FACTS The Petitioner relies upon the Statement of the Case and Facts as contained in its Initial Brief on the Merits.
SUMMARY OF THE ARGUMENT This Court should reverse the decision of the Fourth District granting a new trial, and resolve conflict in favor of the decision of the Third District in Hazuri v. State. When the jury asked to
see transcripts of several witnesses testimony, the trial court properly responded by advising the jury that transcripts were not available and that they should rely upon the evidence. Rule 3.410
does not impose a burden upon trial courts to inform a jury that read backs may be requested. Furthermore, as this Court has held,
such requests may be denied at the discretion of the trial court without much consideration. The Respondent has not cited any decisions form this Court which directly support his argument in support of the decision of the Fourth District finding that Judge Labarga abused his
discretion, nor is there any authority. The remaining arguments raised by the Respondent are unrelated to the certified conflict and should not be considered by this Court.
ARGUMENT THE FOURTH DISTRICT ERRONEOUSLY IMPOSED A BURDEN ON TRIAL COURTS TO INFORM JURIES THAT THEY MAY REQUEST READ BACKS OF TESTIMONY (ALTHOUGH A TRIAL COURT MAY DENY SUCH REQUESTS WITHOUT MUCH CONSIDERATION); THE DECISION OF THE FOURTH DISTRICT SHOULD BE REVERSED; CONFLICT SHOULD BE RESOLVED IN FAVOR OF THE THIRD DISTRICTS DECISION IN HAZURI In his Amended Answer Brief on the Merits, the Respondent makes three arguments: 1. that the decision of the Fourth District correctly held that the trial court abused his discretion by declining the jurys request for transcripts without informing them about the potential for read backs of witness testimony; 2. that the trial courts adoption of an ad hoc rule prohibiting read backs amounted to a failure to exercise discretion; and 3. that the decision of the Fourth District incorrectly held that corpus delecti was proved in this case. of these arguments in turn. The Petitioner will address each However, it is the Petitioners

position that the second and third arguments are beyond the scope of the certified conflict and should not be addressed by this Court. See, Shenfeld v. State, 44 So.3d 96, 101 (Fla. 2010); Thompson v. State, 990 So.2d 482, 487 FN1 (Fla. 2008).
The Trial Court Did Not Abuse Its Discretion In the instant case, the jury requested to see transcripts of a number of witnesses. The trial court ultimately instructed the jury that: There are no transcripts available for your review. 4
Please rely on the evidence presented during the proceedings. Barrow v. State, 27 So.3d 211, 215-216 (Fla. 4th DCA 2010).
Although the instruction was factually accurate - - and, as the Petitioner has shown, entirely within the discretion of the trial court - - the Fourth District reversed and certified conflict with
the decision of the Third District in Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009). In his Answer Brief, the Respondent argues that the trial court abused his discretion in his response to the jurys request to see transcripts since the trial court did not advise the jury that they had the option of requesting read backs of witnesses testimony. The Respondent cites decisions of other district courts He also
and of the Fourth District to support his argument.
discusses some out-of-state cases; however, he is apparently unable to find direct support for his argument in any decision of this Court. He quotes general language from the nearly 60-year old
decision in Sutton v. State, 51 So.2d 725 (Fla. 1951), yet he does not directly address this Courts relatively recent decision in Francis v. State, 808 So.2d 110 (Fla. 2001), where this Court recognizes that: courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jurys request for a read back. Id. at 130 (emphasis added). Francis cites McKee v. State, 712 So.2d 837, 838 (Fla. 2d DCA 1998), where the Court found that the trial courts refusal to
read back requested testimony, and advising the jury to rely upon your own memory regarding the testimony of the witnesses, was not an abuse of the trial courts broad discretion in not rereading the requested testimony. The Respondent cites Roper v. State, 608 So.2d 533 (Fla. 5th DCA 1992) and Avila v. State, 781 So.2d 413 (Fla. 4th DCA 2001) in his support of the instant decision, and, indeed, these cases are cited in Barrow. 27 So.3d at 217-218. In its initial brief on the
merits, the Petitioner distinguished both Roper and Avila from the case at bar. Further elaboration would not appear to be necessary; in both of these cases the trial courts were presented with different jury requests than the one presented to Judge Labarga in the instant case. Again, the trial court in this case answered the

jurys question in an accurate and straightforward manner. The out-of-state cases argued by the Respondent are readily distinguishable from the instant case. In State v. Hebert, 455 A.2d 925, 929-933 (Me. 1983), the Court found that refusing the jurys request for a read back of the defendants cross examination was an abuse of discretion. In the instant case, the jury did not request
a read back of a single witness, but, rather, requested nonexistent transcripts of a number of witness. Furthermore, in Herbert the
jurys request was made after two and a half hours of deliberation. Id. at 929. In the instant case, the request for transcripts was
made after only ten minutes of deliberation, a fact specifically
recognized by Judge Labarga. Barrow, 27 So.3d at 215-216. In State v. Spaulding, 296 N.W.2d 870, 878 (Minn. 1980), the trial court - - unlike Judge Labarga - - informed the jury before deliberations that no testimony would be read to them, and again informed the jury that testimony would not be read even after nine hours of deliberation and after receiving a note that the jury was in disagreement over the defendants testimony. be an abuse of discretion. People v. Butler, 47 Cal.App.3d 273 (Cal. App. 1975), would appear to be somewhat closer to the facts of the instant case, but is also distinguishable. In that case, the jury, after about two This was found to
and a half hours of deliberation, requested read backs of the testimony of a number of witnesses. Id. at 277-280. The trial
court refused the request, and asked the jury to arrive at a verdict based on the information that you have. Id. at 279 (emphasis in original). The crucial difference between Butler and
the instant case is that in Butler the foreperson of the jury advised the trial court that read backs were requested because the jury was actually unable to hear a portion of the testimony because [s]ome of it was so faint. Id. at 278. In the instant case,
there was absolutely no indication that the jury had any trouble hearing any of the witnesses testimony. out-of-state cases cited by the Consequently, all of the Respondent are readily

distinguishable.

Again, it is the Petitioners position that Judge Labargas instruction to the jury after transcripts were requested was both factually accurate (the Respondent does not seem to argue

otherwise) and well within the discretion vested in our trial courts. The Petitioner respectfully submits that the decision of
the Fourth District places a burden upon trial courts to advise juries that they may ask for read backs when no such obligation appears in Rule 3.410, Fla. R. Crim. P., the rule that addresses jury read back requests. Accordingly, the Petitioner requests that
the decision of the Fourth District on this point be quashed and conflict resolved in favor of the decision of the Third District in Hazuri.
The Trial Court Did Not Refuse to Exercise Discretion Next, the Respondent argues that the trial court adopted an ad hoc rule prohibiting read backs and requests that this Court affirm the decision of the trial court on this basis. However, as the
Petitioner has argued above, this point was not a basis for certified conflict with Hazuri and should therefore not be
considered by this Court. In support of this argument, the Respondent has seized upon the trial courts comment that I dont do read backs (Amended Answer Brief, page 24). See also, Barrow, 27 So.3d at 215.
However, nothing in the record shows that the trial court failed to 8

exercise his discretion.

In fact, while addressing the question of
read backs, the trial court cited several decisions, all of which recognize a trial courts broad discretion regarding read backs. Id. at 216 FN1. See, Francis; McKee; Miller v. State, 605 So.2d 492 (Fla. 3d DCA 1992); DeCastro v. State, 360 So.2d 474 (Fla. 3d DCA 1978). Therefore the trial court was abundantly aware that the decision to allow read backs was at his discretion. Again, it
should be repeated, the trial court was never asked for a read back of testimony; the jury requested transcripts which were not

available.

They was advised accordingly by the trial court.
The State Established Corpus Delecti Finally, the Respondent argues that there was insufficient proof of corpus delecti because the victims body was never found; he asks that he be forever discharged from further answer to this cause (Amended Answer Brief, page 31). Again, since this issue is
beyond the scope of certified conflict, it should not be considered by this Court. See, Shenfeld, 44 So.3d at 101; Thompson, 990 So.2d at 487 FN1. In any event, the Fourth District properly found that

corpus delecti was established in this case, and that portion of the instant decision should not be disturbed. Quoting this Courts decision in Meyers v. State, 704 So.2d 1368, 1369-70 (Fla. 1997), the Fourth District stated that: In order to prove corpus delecti in a homicide case, the state must
establish: (1) the fact of death; (2) the criminal agency of another person as the cause thereof; and (3) the identity of the deceased person. Barrow, 27 So.3d at 220. Relying in part on this
Courts decision in Crain v. State, 894 So.2d 59, 72 (Fla. 2004), and the decision of the Fifth District Court of Appeal in State v. Lindsey, 738 So.2d 974, 977 (Fla. 5th DCA 1999), the Fourth District held that corpus delecti was established because: In this case, the victim had not taken any of her belongings with her, including her identification and money. Three years had elapsed from the time the victim was last seen to the time of trial. She was last seen with [Respondent], and her blood was found in his van. Barrows story changed, and it was contradicted by the testimony of witnesses. Such evidence was sufficient to establish corpus delecti. Even though this is a weaker case than Lindsey and Crain, in that the victim had a history of disappearing for periods of time, corpus delicti need not be proved beyond a reasonable doubt. See Davis v. State, 582 So.2d 695, 700 (Fla. 1st DCA 1991)([T]he foundational evidence necessary to prove corpus delicti need not eliminate possible noncriminal explanations of a victims disappearance.) Barrow, 27 So.3d at 220. Although the Fourth District characterized the instant case as weaker than Crain and Lindsey, those cases have striking
similarities to the instant case.
The victims in Lindsey, like the
victim in the instant case, disappeared without contacting family or friends and that left their belongings neither 10 in their residences, nor planned.

indicating

absences

voluntary

Barrow, 27 So.3d at 220.

The victim in Crain, like the victim in
the instant case, was last seen alive in the defendants presence and her blood was found on the defendants clothing; in the instant case the victims blood was found in the Respondents van. Like
the defendant in Crain, the Respondent exhibited unusual behavior the day after the victims disappearance. Barrow, 27 So.3d at 214, 220. Crain, Lindsey, and other decisions cited in the opinion
support the holding of the Fourth District on this point. See also, Meyers, 704 So.2d at 1369 (corpus delecti proven despite the fact that the victims body was never found); Mackerly v. State, 754 So.2d 132, 135-136 (Fla. 4th DCA 2000), reversed on other grounds, 777 So.2d 969 (Fla. 2001)(the state presented evidence which suggested that Blacks unannounced and unanticipated disappearance most likely meant that he was dead and that his death stemmed from the criminal agency of another). Therefore, in the instant case,
the Fourth District correctly concluded that the State was able to establish corpus delecti, and that part of the opinion should not be disturbed.
CONCLUSION WHEREFORE, based on the foregoing arguments and the
authorities cited therein, Petitioner respectfully requests that this Court reverse the instant decision of the Fourth District granting a new trial and resolve certified conflict in favor of the Third Districts decision in Hazuri.
Respectfully submitted, BILL MCCOLLUM Attorney General Tallahassee, Florida
___________________________ James J. Carney Sr. Assistant Attorney General Florida Bar No. 475246
_____________________________ Daniel P. Hyndman Assistant Attorney General Florida Bar No. North Flagler Drive Suite 900 West Palm Beach, FL 33401 (561) 837-5000 Counsel for Petitioner
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing "Petitioners Initial Brief on the Merits" has been furnished by U.S. Mail on November 8, 2010 to Frederick R. Susaneck, Esq., Levine & Susaneck, P.A., 324 Datura Street, Suite 145, West Palm Beach, Fl 33401.
______________________________ DANIEL P. HYNDMAN
CERTIFICATE OF TYPE SIZE AND STYLE In accordance with Fla. R. App. P. 9.210, the undersigned hereby certifies that the instant brief has been prepared with 12 point Courier New Type.
______________________ DANIEL P. HYNDMAN

Cite as: 556 U. S. ____ (2009) THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
WILLIAM LEE THOMPSON v. WALTER A. MCNEIL,
SECRETARY, FLORIDA DEPARTMENT OF

CORRECTIONS

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 087369. Decided March 9, 2009
JUSTICE THOMAS, concurring in denial of certiorari. I remain unaware of any support in the American constitutional tradition or in this Courts precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. Knight v. Flor ida, 528 U. S. 990 (1999) (THOMAS, J., concurring in denial of certiorari). Petitioner William Lee Thompson has pleaded guilty to this murdertwice. Thompson v. State, 759 So. 2d 650, 654 (Fla. 2000) (per curiam). Having confessed, petitioner could have accepted what the people of Florida have deemed him to deserve: execution. Foster v. Florida, 537 U. S. 990, 991 (2002) (THOMAS, J., concur ring in denial of certiorari). But because petitioner chose to challenge his death sentence, JUSTICE STEVENS and JUSTICE BREYER suggest that the subsequent delay caused by petitioners 32 years of litigation creates an Eighth Amendment problem. Ante, at 24 (STEVENS, J., statement respecting denial of certiorari); post, at 13 (BREYER, J., dissenting from denial of certiorari). I dis agree. It makes a mockery of our system of justice. for a convicted murderer, who, through his own interminable efforts of delay. has secured the almost-indefinite post ponement of his sentence, to then claim that the almost indefinite postponement renders his sentence unconstitu tional. Turner v. Jabe, 58 F. 3d 924, 933 (CA4 1995) (Luttig, J., concurring in judgment).
THOMPSON v. MCNEIL THOMAS, J., concurring
JUSTICE BREYER replies that a death-row inmates Eighth Amendment challenge to a delay of more than 30 years between sentencing and execution should not be automatically waive[d] because he chooses to exercise his appellate rights. See post, at 1. But framing the issue in this way obscures the central question. The issue is not whether a death-row inmates appeals waive any Eighth Amendment right; the issue instead is whether the death row inmates litigation strategy, which delays his execu tion, provides a justification for the Court to invent a new Eighth Amendment right. It does not. See Knight, supra, at 992 (opinion of THOMAS, J.) (Consistency would seem to demand that those who accept our death penalty juris prudence as a given also accept the lengthy delay between sentencing and execution as a necessary consequence. It is incongruous to arm capital defendants with an arse nal of constitutional claims with which they may delay their executions, and simultaneously to complain when executions are inevitably delayed). I also disagree with JUSTICE STEVENS that other aspects of the criminal justice system in this country require the fresh examination of the costs and benefits of retaining the death penalty that he seeks. Ante, at 23. For exam ple, JUSTICE STEVENS criticizes the dehumanizing effects of the manner in which petitioner has been confined, ante, at 2, but he never pauses to consider whether there is a legitimate penological reason for keeping certain inmates in restrictive confinement. See, e.g., Kocieniewski, Death Row Inmate Said to Beat and Kick Another to Death in New Jersey Prison, New York Times, Sept. 8, 1999, p. B5. Indeed, the disastrous consequences of this Courts recent foray into prison management, Johnson v. California, 543 U. S. 499 (2005), should have suppressed any urge to second-guess these difficult institutional decisions, Beard v. Banks, 548 U. S. 521, 536537 (2006) (THOMAS, J., concurring in judgment) (noting that after the Court in

validated Californias policy of racially segregating prison ers in its reception centers, the State subsequently ex perienced several instances of severe race-based prison violence, including a riot that resulted in 2 fatalities and more than 100 injuries, and significant fighting along racial lines between newly arrived inmates, the very inmates that were subject to the policy invalidated by the Court in Johnson). JUSTICE STEVENS also points to the 129 death row in mates that have been exonerated since 1973. Ante, at 3. These inmates may have been freed from prison, but that does not necessarily mean that they were declared inno cent of the crime for which they were convicted. Kansas v. Marsh, 548 U. S. 163, 180, and n. 7 (2006). Many were merely the beneficiaries of this Courts Byzantine death penalty jurisprudence. Knight, supra, at 991 (opinion of THOMAS, J.). Moreover, by citing these statistics, JUSTICE STEVENS implies that the death penalty can only be just in a system that does not permit error. Marsh, 548 U. S., at 181. But no criminal justice system operates without error. There is no constitutional basis for prohibiting Florida from authorizing the death penalty, even in our imperfect system. Ibid. Finally, JUSTICE STEVENS altogether refuses to take into consideration the gruesome nature of the crimes that legitimately lead States to authorize the death penalty and juries to impose it. The facts of this case illustrate the point. On March 30, 1976, petitioner and his codefendant were in a motel room with the victim and another woman. They instructed the women to contact their families to obtain money. The victim made the mistake of promising that she could obtain $200 to $300; she was able to secure only $25. Enraged, petitioners codefendant ordered her into the bedroom, removed his chain belt, forced her to undress, and began hitting her in the face while petitioner beat her with the belt. They then rammed a chair leg into
her vagina, tearing its inner wall and causing internal bleeding; they repeated the process with a nightstick. Petitioner and his codefendant then tortured her with lit cigarettes and lighters and forced her to eat her sanitary napkin and to lick spilt beer off the floor. All the while, they continued to beat her with the chain belt, the club, and the chair leg. They stopped the attack once to force the victim to again call her mother to ask for money. After the call, petitioner and his codefendant resumed the tor ture until the victim died. Thompson, 759 So. 2d, at 653 654.* Three juries recommended that petitioner receive the death penalty for this heinous murder, and petitioner has received judicial review of his sentence on at least 17 occasions. The decision to sentence petitioner to death is not the product of habit and inattention rather than an acceptable deliberative process. Ante, at 4 (quoting and citing Baze v. Rees, 553 U. S. ___, ___ (2008) (slip op., at 8, 17) (STEVENS, J., concurring in judgment)). It represents the considered judgment of the people of Florida that a death sentence, which is expressly contemplated by the Constitution, see Amdts. 5, 14, is warranted in this case. It is the crimeand not the punishment imposed by the jury or the delay in petitioners executionthat was un acceptably cruel. Ante, at 4.

* JUSTICE BREYER suggests that petitioner may be significantly less culpable than his codefendant, who did not receive the death penalty principally because Barbara Garritz, the woman who witnessed the murder, averred at petitioners third sentencing that he was dominated by his codefendant. Post, at 2. JUSTICE BREYER ignores, however, that petitioner testified [at his codefendants retrial] and took credit for the entire incident and that Ms. Garritz had previously testified that petitioner left the bedroom and told her that he was so angry he felt like killing Sally [the victim]. Thompson v. State, 389 So. 2d 197, 199200 (Fla. 1980) (per curiam). In any event, JUSTICE BREYERs factual recitation is entirely beside the point: He concedes that the jurys decision to sentence petitioner to death was [r]easonable. Post, at 3.