                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

TROY LESSARD,                       NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D15-5300

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed December 13, 2017.

An appeal from the Circuit Court for Suwannee County.
David W. Fina, Judge.

Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Robert Quentin Humphrey, Assistant
Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      AFFIRMED.

ROBERTS and JAY, JJ., CONCUR; MAKAR CONCURS with opinion.
MAKAR, J. concurring.

      I concur in affirming Troy Roland Lessard’s convictions on counts of capital

sexual battery and lewd or lascivious molestation, for which he received life

sentences, but write to address his claim—raised for the first time on appeal—that

the decision in Williams v. Florida, 399 U.S. 78 (1970), which upheld Florida’s

use of six-member juries in all non-death penalty criminal cases, was wrongly

decided and should be reconsidered to afford him a retrial before a twelve-member

jury. Florida is the only state that requires six-member juries in life-felony cases,

such as this one, and the empirical studies continue to discredit the Williams

decision, but the relief Lessard seeks is a jurisprudential dark horse.

      To begin, it is obvious that Williams, which dismissed the centuries-old

common law practice of twelve-member juries1 as a mere “historical accident”2


1
  See, e.g., Barbara Luppi & Francesco Parisi, Jury Size and the Hung-Jury
Paradox, 42 J. Legal Stud. 399 (2013). The authors note that:

      The 12-person jury is a timeworn institution; a staple of novels, stage,
      and cinema; and well established in the common-law tradition, the
      historical tendrils of which extend from the medieval courts of
      England. From as far back as the twelfth century, trials were decided
      by juries of 12, a number that by the fourteenth century had become
      so firmly cemented in the legal tradition that it subsequently acquired
      near mystical significance. The 12-person jury later made its way to
      the American colonies and persisted after the Revolution as a
      constitutional right in the United States.

                                           2
and replaced it with an ad hoc “functional” approach, was based on dubious

anecdotal assertions and demonstrably incorrect statistical and sociological




Id. at 399-400. See also Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (noting
that the “historical foundation” for jury trial principles “extends down centuries
into the common law” such that “trial by jury has been understood to require that
‘the truth of every accusation, whether preferred in the shape of indictment,
information, or appeal, should afterwards be confirmed by the unanimous suffrage
of twelve of [the defendant’s] equals and neighbours....’ 4 W. Blackstone,
Commentaries on the Laws of England 343 (1769)[.]”) (italics in original opinion;
bold emphasis added) (internal citations omitted); see also Blakely v. Washington,
542 U.S. 296, 301 (2004) (noting “that the ‘truth of every accusation’ against a
defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of
his equals and neighbours[]’” as a “longstanding tenet[] of common-law criminal
jurisprudence”) (citing Blackstone) (emphasis added); see also Baldwin v. New
York, 399 U.S. 117, 122 (1970) (Harlan, J., dissenting) (“With all respect, I
consider that before today it would have been unthinkable to suggest that the Sixth
Amendment’s right to a trial by jury is satisfied by a jury of six, or less, as is left
open by the Court’s opinion in Williams, or by less than a unanimous verdict, a
question also reserved in today’s decision.”). The 1954 screenplay Twelve Angry
Men—much like the oft-repeated Miranda warnings in movies and television
shows—has fixed twelve as having special historic significance in popular culture.
2
  Williams, 399 U.S. at 90-91. The Court held in Duncan v. Louisiana, 391 U.S.
145, 148-49 (1968), that the right to jury trial in the Sixth Amendment is a
“fundamental” right that applies to the States via the Due Process Clause of the
Fourteenth Amendment. In dissent, Justice Harlan bemoaned that the
“circumvention of history is compounded by the cavalier disregard of numerous
pronouncements of this Court that reflect the understanding of the jury as one of 12
members and have fixed expectations accordingly.” Baldwin, 399 U.S. at 126
(Harlan, J., dissenting).


                                          3
principles that have plagued this body of jurisprudence ever since. 3 Williams held

that a six-member jury in a state court criminal proceeding was functionally the

same and thereby an adequate constitutional proxy for the time-worn traditional

twelve-member jury. 4 But its reasoning foundered on glaring misinterpretations of

social science research and inept methodologies, so much so that one prominent

commentator said that the “quality of social science scholarship displayed [in the


3
  See Shawn Kolitch, Constitutional Fact Finding and the Appropriate Use of
Empirical Data in Constitutional Law, 10 Lewis & Clark L. Rev. 673, 689 (2006)
(noting that the Supreme Court’s newfound functional approach was flawed
because its “interpretation of the available empirical data was questionable from
the beginning, and illustrates many of the difficulties the Court faces when
attempting to support its holdings with empirical data”); Robert H. Miller, Six of
One Is Not A Dozen of the Other: A Reexamination of Williams v. Florida and the
Size of State Criminal Juries, 146 U. Pa. L. Rev. 621, 622 (1998) (discussing “the
critical ways in which the Court’s misinterpretation and misapplication of social-
science     research    in    Williams     and     its    progeny      triggered    the
‘unthinkable’ dismantling of an irrevocable constitutional cornerstone”) (footnote
omitted); Baldwin, 399 U.S. at 126 (“The Court’s elaboration of what is required
provides no standard and vexes the meaning of the right to a jury trial in federal
courts, as well as state courts, by uncertainty. Can it be doubted that a unanimous
jury of 12 provides a greater safeguard than a majority vote of six? The uncertainty
that will henceforth plague the meaning of trial by jury is itself a further sufficient
reason for not hoisting the anchor to history.”) (Harlan, J., dissenting).
4
  Under the Florida constitution, the “qualifications and the number of jurors, not
fewer than six, shall be fixed by law.” Art. I, § 22, Fla. Const. By statute, Florida
specifies that “[t]welve persons shall constitute a jury to try all capital cases, and
six persons shall constitute a jury to try all other criminal cases.” § 913.10, Fla.
Stat. (2017).

                                          4
Court’s decisions on jury size] would not win a passing grade in a high school

psychology class.”5

      Soon thereafter, the Court again rejected historical norms in assessing the

issue of jury unanimity in state court criminal proceedings. Much like its analysis

in Williams, the Court concluded that jury unanimity is not required under the

Sixth Amendment—at least when juries are ten or larger—because it “does not

materially contribute to the exercise of [jurors’] commonsense judgment.”

Apodaca v. Oregon, 406 U.S. 404, 410 (1972). Applying a “functional” approach

again, a plurality “perceive[d] no difference between juries required to act

unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to

one” such that “the interest of the defendant in having the judgment of his peers

interposed between himself and the officers of the State who prosecute and judge

him is equally well served,” whether unanimity is required or not. Id. at 410-11.

The various opinions, concurring and dissenting, reflected no consensus on a

coherent analytical approach. In a companion case, Johnson v. Louisiana, 406 U.S.

356, 364 (1972), the Court addressed a tiered jury system where “less serious

crimes [are] tried by five jurors with unanimous verdicts, more serious crimes [ ]

5
  Miller, Six of One Is Not A Dozen of the Other, 146 U. Pa. L. Rev. at 678 (1998)
(quoting Michael J. Saks, Ignorance of Science Is No Excuse, 10 Trial, Nov.-Dec.
1974, at 18).

                                        5
required the assent of nine of 12 jurors, and for the most serious crimes a

unanimous verdict of 12 jurors is stipulated.” In upholding a 9-3 verdict, the Court

concluded that the differential jury system served a rational interest, the state

legislature “obviously intend[ing] to vary the difficulty of proving guilt with the

gravity of the offense and the severity of the punishment.” Id. at 365.

        Its jury size/unanimity jurisprudence in a muddle, the Supreme Court tried to

temper the fallout from Williams by invalidating a five-member jury in Ballew v.

Georgia, 435 U.S. 223 (1978), but even greater confusion ensued. Two justices

(Blackmun and Stevens) posited that juries of less than six members substantially

threatened the constitutional guarantee of the jury trial right, notwithstanding the

cost-saving and time-saving arguments that Georgia advanced. Their analysis

reflected that most of the major premises underlying the functional approach in

Williams were inaccurate, but rather than overturn that decision, they side-stepped

it.6 Justice White asserted that the requirement that a jury be a fair cross-section of


6
    Justice Blackmun’s opinion found:

     • “First, recent empirical data suggest that progressively smaller juries are less
       likely to foster effective group deliberation. At some point, this decline leads
       to inaccurate fact-finding and incorrect application of the common sense of
       the community to the facts. Generally, a positive correlation exists between
       group size and the quality of both group performance and group
       productivity.”

                                           6
the community would be violated with juries of less than six members. And three

justices (Chief Justice Burger and Justices Powell and Rehnquist) agreed that a

conviction for serious offenses by juries of five members “involves grave questions

of fairness” and that “the line between five- and six- member juries is difficult to

justify, but a line has to be drawn somewhere if the substance of jury trial is to be

preserved.” Id. at 245-46. Finally, three justices (Brennan, Stewart, and Marshall)

concurred only in the holding that “the Sixth and Fourteenth Amendments require

juries in criminal trials to contain more than five persons.” Id. at 246. Though

unified in striking down the Georgia law, no coherent framework emerged (again).

And the Court, by acknowledging Williams’s faulty foundation, allowed doubt in

the legitimacy of its functional approach to continue.

   • “Second, the data now raise doubts about the accuracy of the results
     achieved by smaller and smaller panels. Statistical studies suggest that the
     risk of convicting an innocent person (Type I error) rises as the size of the
     jury diminishes.”
   • “Third, the data suggest that the verdicts of jury deliberation in criminal
     cases will vary as juries become smaller, and that the variance amounts to an
     imbalance to the detriment of one side, the defense.”
   • “Fourth, what has just been said about the presence of minority viewpoint as
     juries decrease in size foretells problems not only for jury decisionmaking,
     but also for the representation of minority groups in the community.”
   • “Fifth, several authors have identified in jury research methodological
     problems tending to mask differences in the operation of smaller and larger
     juries” such that standard variances in smaller juries were greater.

   Ballew, 435 U.S. at 232-39.

                                         7
      Indeed, the next year, in Burch v. Louisiana, 441 U.S. 130 (1979), the Court

again noted the less-than-satisfactory nature of its functional approach, this time

considering whether a conviction for a non-petty state offense by a non-unanimous

six-person jury was constitutional. In overturning the conviction, the Court stated:

      As in Ballew, we do not pretend the ability to discern a priori a bright
      line below which the number of jurors participating in the trial or in
      the verdict would not permit the jury to function in the manner
      required by our prior cases. But having already departed from the
      strictly historical requirements of jury trial, it is inevitable that lines
      must be drawn somewhere if the substance of the jury trial right is to
      be preserved.

Id. at 137 (internal citations omitted). And thus the ad hoc line-drawing continued,

most often based on the perception of whether judicial efficiencies were at the

expense of a criminal defendant’s right to a fair trial (Louisiana said, for example,

that its smaller, non-unanimous juries shortened deliberation time and reduced the

number of hung juries). As Judge Posner put it, “judicial economy is not a trivial

goal in this era of massive caseloads; and the Supreme Court, in upholding the

constitutionality of the six-person jury in criminal cases, has shown that it is

receptive to innovations designed to reduce the high cost of jury trials.” Smith v.

DeRobertis, 758 F.2d 1151, 1151-52 (7th Cir. 1985) (citing Williams).

      In Burch, the balance tipped in the defendant’s favor because when “a State

has reduced the size of its juries to the minimum number of jurors permitted by the

                                          8
Constitution, the additional authorization of nonunanimous verdicts by such juries

sufficiently threatens the constitutional principles that led to the establishment of

the size threshold that any countervailing interest of the State should yield.” 441

U.S. at 139. Another line was thereby drawn.

      Despite repeated calls to either abandon its functional approach (and revert

to the historical twelve juror standard)7 or at least update it by bringing it in line

with modern empirical realities (some studies suggest optimal jury sizes based on

multi-variate statistical models), little has changed jurisprudentially in the Supreme

Court since Williams and Ballew. Part of the reason is that “[a]lthough the

Supreme Court has blessed both six-person juries and non-unanimous decision

rules, measured on a national scale, neither decision has had great impact. The vast

majority of states still choose twelve-person, unanimous juries to convict in serious

criminal cases.”8 Forty-five states require twelve unanimous jurors to convict for


7
  See, e.g., Randolph N. Jonakait, Originalism As the Defense Attorney’s Friend:
Expanding Sixth Amendment Rights, Champion, May 2009, at 38, 40 (discussing
that principles of originalism create a basis for a constitutional challenge to revert
to the historic standard of a twelve-member jury).
8
   Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy
Relationship with the Jury, 71 Ohio St. L.J. 959, 1000-01 (2010) (footnotes
omitted) (noting that “[j]uries, in the American imagination, broadly defined, are
still twelve and decide unanimously. Dollars and cents calculations or more
traditional reliance interests in those states that have gone a different way may still

                                          9
any felony (federal felony trials require twelve jurors); a few states permit six to

eight jurors for specified felonies.9

      Florida and Connecticut are the anomalies. 10 As the Second District noted:

“Florida is one of only two remaining states that regularly use six jurors to decide




persuade the Court that its cases should stand, but nothing outside of formal
doctrine—no constitutional expectation—stands as an obstacle to their demise.”).
9
  Two professors, who advocate for either a return to the historic jury size of
twelve or a conscientious, updated application of the functional approach, surveyed
state jury size as follows:

      Although some states reduced the size of the jury in criminal
      prosecutions to six persons (and Georgia attempted to reduce
      the size to five) following the Williams decision, most states currently
      retain twelve-person juries in felony cases. Only six states
      permit juries of fewer than twelve in felony prosecutions, and of those
      only four permit six-person juries. Indiana requires twelve-
      person juries for class A, B, and C felonies, and six-person juries in all
      other felony cases. Massachusetts provides twelve-person juries for all
      Superior Court cases and a de novo jury trial for all cases appealed
      from a guilty verdict by a six-person jury in district court cases. Thus
      no person accused of a felony in Massachusetts must settle for a six-
      person jury. Arizona provides twelve-person juries in cases where the
      sentence may be more than thirty years and eight-person juries in
      other felony cases. In Utah, eight-person juries are permitted in felony
      prosecutions.

Alisa Smith & Michael J. Saks, The Case for Overturning Williams v. Florida and
the Six-Person Jury: History, Law, and Empirical Evidence, 60 Fla. L. Rev. 441,
443 (2008) (footnotes omitted).


                                         10
the outcome of criminal cases in which life imprisonment is a mandatory sentence

if the defendant is found guilty of the charged offense.” Gonzalez v. State, 982 So.

2d 77, 78 (Fla. 2d DCA 2008) (footnote omitted) (noting that “[t]he common-law

tradition of twelve jurors for such important criminal cases is overwhelmingly

recognized as the better policy throughout the United States”); see also Alisa Smith

& Michael J. Saks, The Case for Overturning Williams v. Florida and the Six-

Person Jury: History, Law, and Empirical Evidence, 60 Fla. L. Rev. 441, 443

(2008) (“The only other state [besides Florida] with six-person juries in felony

cases is Connecticut. All other state and federal felony prosecutions require

twelve-person juries. The states that have the death penalty, including Florida,

require twelve-person juries in all capital or death cases.”).

      Connecticut, though requiring six-member juries, provides that no person

accused of an offense punishable by “life imprisonment without the possibility of

release or life imprisonment, shall be tried by a jury of less than twelve without

such person’s consent.” Conn. Gen. Stat. Ann. § 54-82 (2017) (amended in 2012).

That leaves Florida with the distinction of being the only state that requires six-


10
  Id. (The only other state with six-person juries in felony cases is Connecticut. All
other state and federal felony prosecutions require twelve-person juries. The states
that have the death penalty, including Florida, require twelve-person juries in all
capital or death cases.).

                                          11
member juries for non-capital crimes punishable by life imprisonment, which is the

sentence that Lessard received on the capital sexual battery count (life in prison

without parole) and the lewd and lascivious molestation of a minor count (life in

prison with a minimum mandatory of twenty-five years).

      Though Florida is alone in using six-member juries for life felonies,

Lessard’s demand for a twelve-member jury for the serious charges against him is

a non-starter. No federal constitutional impediment stands in the way of a six-

person jury in a state criminal court. And our state supreme court, as well as the

district courts, have uniformly rejected a claimed constitutional right to a twelve-

member jury in similar situations; certain capital offenses, for which only a life

sentence is now permissible rather than death, require only a six-member jury.

State v. Hogan, 451 So. 2d 844, 845-46 (Fla. 1984) (“Sexual battery of a child,

therefore, while still defined as a ‘capital’ crime by the legislature, is not capital in

the sense that a defendant might be put to death” such that “a twelve-person jury is

not required when a person is tried under that statute.”).11



11
   Lessard asserts that the Florida Supreme Court in Hogan violated separation of
powers principles by negating the statutory twelve-member jury requirement in
capital cases, urging that the Court “as presently constituted” ought to revisit the
issue. As to the capital sexual battery count, he argues:

                                           12
      As Judge Altenbernd’s scholarly opinion noted almost a decade ago, an

argument in favor of twelve-member juries for felonies involving mandatory life

sentences without parole “is worthy of consideration, but this court has no

authority to overrule the precedent from the United States Supreme Court that

endorsed the use of a jury with only six members as constitutional, nor

the Florida law that authorizes and perhaps compels the use of six-

member juries in non-capital criminal cases.” Gonzalez, 982 So. 2d at 78. Instead,

jury size is now principally a legislative branch question, one that Florida’s

      In light of special rules of evidence authorizing admission of hearsay
      and collateral-crime evidence in molestation cases, precedent
      excusing such cases from requirements that the date of offense be
      alleged with specificity, and society’s revulsion at child molestation,
      the Legislature may have wished to maintain a protective
      counterweight in the form of a twelve-person jury in prosecutions for
      molestation compelling a life sentence.

Lessard asks that we certify a question (“Should the court recede from its holding
in State v. Hogan, 451 So. 2d 844 (Fla. 1984), that Florida law does not compel a
twelve-person in a trial for ‘capital’ sexual battery?”), but a similar question was
certified by this Court in 2003 and rejected, see Hall v. State, 853 So. 2d 546, 549
(Fla. 1st DCA 2003) (“Whether a 12–person jury is required in a first degree
murder case where the death penalty may not be imposed as a matter of law.”), rev.
denied, 865 So. 2d 480 (Fla. 2003), making certification now less compelling.
Lessard points to the recent empirical work on jury size as a basis for certification,
but the Florida Supreme Court would be in no better position to evaluate those
studies or do its own empirical work than would the Florida Legislature, which has
been considering jury size as to life felonies in recent years. Whether the U.S.
Supreme Court might delve into such empirical matters is a different question.


                                         13
legislature continues to debate. 12 Beyond that, the future of jury size jurisprudence

lies in the United States Supreme Court, which could update its functional

approach based on contemporary social science research, abandon Williams and

return to the originalist position of twelve-member juries, or—like it has done for

four decades—leave it be.13




12
   See, e.g., 2017 Florida Senate Bill No. 962, (proposing change to section 913.10,
Florida Statutes, to say: “Number of jurors.-Twelve persons shall constitute a jury
to try all capital and life felony cases, and six persons shall constitute a jury to try
all other criminal cases.”). Since 2014, at least one bill has been proposed to make
this type of change to the statute.
13
  The Court has turned down petitions in 13-1179, Irving v. Florida; 08-6833,
Gonzalez v. Florida; and 08-6868, Deltoro v. Florida.

                                          14
