Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JEREMIAH DILLARD, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-2274 October 15, 2021 Appeal from the Circuit Court for Pinellas County; William H. Burgess, III, Judge. Howard L. Dimmig, II, Public Defender, and Andrea Flynn Mogensen, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Ryan M. Edmiston, Assistant Attorney General, Tampa, for Appellee. LUCAS, Judge. A jury found Jermiah Dillard guilty of first-degree murder of a two-month-old child that had been in his care. The circuit court sentenced him to life in prison without the possibility of parole. We affirm his conviction and sentence in all respects. We write only to address a discrete legal argument Mr. Dillard has raised concerning Florida Standard Criminal Jury Instruction 3.12. In his third issue on appeal, Mr. Dillard argues that the use of instruction 3.12 in his case resulted in an unconstitutional, non- unanimous jury verdict of his charged crime. The instruction the court used (over Mr. Dillard's objection) was modeled after the standard instruction and it read as follows: You may find the defendant guilty as charged or guilty of such lesser included crimes as the evidence may justify or not guilty. If you return a verdict of guilty, it should be for the highest offense on the verdict form that has been proven beyond a reasonable doubt. If you find that no offense has been proven beyond a reasonable doubt, then, of course, your verdict must be not guilty. The verdict must be unanimous, that is, all of you must agree to the same verdict. Only one verdict may be returned as to the crime charged. The verdict must be in writing and for your convenience the necessary verdict form has been prepared for you. It is as follows: If you return a verdict of guilty to the charge of First Degree Murder, it is not necessary that all of you agree the State proved First Degree Premeditated Murder and it is not necessary that all of you agree the State proved First degree Felony Murder. Instead, what is required is that all of you agree the State proved either First Degree Premeditated Murder or First Degree Felony Murder. 2 Fla. Std. Jury Instr. (Crim.) 3.12. According to Mr. Dillard, this instruction and the accompanying verdict form allowed the jury to find him guilty of first-degree murder without unanimous agreement as to whether he committed premeditated or felony first- degree murder. The Florida Supreme Court addressed this very issue in Mansfield v. State, 911 So. 2d 1160 (Fla. 2005). In Mansfield, the court rejected a claim of ineffective assistance of counsel and adopted a plurality part of the Supreme Court's opinion in Schad v. Arizona, 501 U.S. 624 (1991): "[T]he Supreme Court held that the United States Constitution did not require the jury to come to a unanimous decision on the theory of first-degree murder and that separate verdict forms for felony and premeditated murder were not required." Mansfield, 911 So. 2d at 1178. Mansfield further concluded that "because the State has no obligation to charge felony murder in the indictment, it similarly has no obligation to give notice of the underlying felonies that it will rely upon to prove felony murder." Id. at 1179 (quoting Kearse v. State, 662 So. 2d 677, 682 (Fla. 1995)). Mr. Dillard acknowledges Mansfield would 3 appear to be controlling. But, he argues, subsequent to Mansfield and the adoption of standard instruction 3.12, the U.S. Supreme Court decided Ramos v. Louisiana, 140 S. Ct. 1390 (2020). In Ramos, the Court held that a unanimous jury verdict is constitutionally required to support a criminal conviction of a serious offense in state court. Id. at 1397. According to Mr. Dillard, in his case "the State was permitted to argue the alternate theories, premeditated and felony murder, child abuse or smothering or malnutrition, thus unanimity was neither required nor ensured." This, he argues, runs afoul of Ramos and entitles him to a new trial. Mr. Dillard quotes extensively from the broad pronouncements of Ramos,1 but he fails to account for a categorical distinction 1 For example: "[I]magine a constitution that included the same hollow guarantee twice—not only in the Sixth Amendment, but also in Article III. No: The text and structure of the Constitution clearly suggest that the term 'trial by an impartial jury' carried with it some meaning about the content and requirements of a jury trial. One of these requirements was unanimity. Wherever we might look to determine what the term 'trial by an impartial jury trial' meant at the time of the Sixth Amendment's adoption— whether it's the common law, state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable. A jury must reach a unanimous verdict to convict." Ramos, 140 S. Ct. at 1395 (footnote omitted). 4 between that case and his. Ramos addressed a murder conviction that was founded on a 10-2 jury vote. Ramos' conviction was literally non-unanimous. The twelve jurors in Mr. Dillard's trial all agreed he was guilty of first-degree murder. To be sure, Mr. Dillard's jury was presented with alternative theories of his crime, either one of which would sustain his conviction. But that is a different matter entirely from what Ramos addressed; and under Florida law, it does not make his verdict non-unanimous. In Schad, a plurality of the Supreme Court observed, [o]ur cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed. . . . We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, "different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." Schad, 501 U.S. at 631-32 (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring)).2 2 Apparently, one case reporting service has indicated with a "red flag" that Schad's abrogation "was recognized by" Edwards v. 5 The Florida Supreme Court adopted the Schad plurality's view in Mansfield. And Mansfield remains good law. Thus, the circuit court properly instructed the jury that either premeditated or felony murder could sustain a guilty verdict, so long as all the jurors unanimously agreed that Mr. Dillard was guilty of one or the other form. The jury's verdict was unanimous, the circuit court entered a judgment accordingly, and we now affirm it. Affirmed. VILLANTI and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication. Vannoy, 141 S. Ct. 1547 (2021). We fail to see how. Edwards simply addressed—and rejected—whether the jury-unanimity rule announced in Ramos should apply retroactively in collateral proceedings. Id. at 1562. Edwards' only reference to Schad comes by way of footnote 4, which, in a string citation, mentions a parenthetical reference of footnote 5 in Schad, which was part of Schad's plurality opinion. We have no cause to question that the gist of the Schad plurality's footnote 5 (concerning the Sixth Amendment and the right to a unanimous jury verdict) is now no longer the law. But that does not mean Schad's holding was abrogated—unless a footnote in one opinion somehow "recognizes" an implicit abrogation of a parenthetical in a footnote of a prior plurality opinion. 6