Opinion
CASE NO.: SC12-1160 Lower Tribunal No(s).: CFP-96-30167
08-08-2013
THOMAS MITCHELL OVERTON Appellant(s) v. STATE OF FLORIDA Appellee(s)
Thomas Mitchell Overton, a prisoner under sentence of death, appeals an order of the circuit court denying his successive motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See article V, section 3(b)(1), Fla. Const.
Overton raises six claims alleging the circuit court erred when it denied his: (1) motion to disqualify the circuit judge; (2) Brady v. Maryland, 373 U.S. 83 (1963) claim; (3) due process claim; (4) witnesses exclusion claim; (5) newly discovered evidence claim; and (6) motion to compel DNA testing.
James Pesci was a witness in Overton's trial. Overton v. State, 801 So. 2d 877, 885-87 (Fla. 2001) (Overton I). Two months before the evidentiary hearing on Overton's successive postconviction motion, the circuit judge presided over James Pesci's annual review hearing concerning whether Pesci would continue to remain civilly committed under the Jimmy Ryce Act. During that hearing, the circuit judge merely commented on Pesci's role during Overton's trial. Overton alleges that the circuit court erred in denying his motion to disqualify because those comments tainted any credibility finding concerning Pesci's testimony during Overton's successive postconviction evidentiary hearing and jeopardized the impartiality and fairness of that hearing. Overton also alleges that because the circuit judge presided over his capital trial and also his initial postconviction proceeding, the judge has an interest in ensuring that his death sentences are upheld.
Circuit judges handle many types of cases, and an allegation of judicial bias based on a judge's prior or contemporaneous involvement in a witness's legal proceeding is insufficient to support a motion to disqualify absent a well-grounded fear that the party alleging judicial bias will not receive a fair hearing. See Johnson v. State, 769 So. 2d 990, 996 (Fla. 2000). Overton fails to identify specific comments from that separate proceeding to substantiate his claim. Consequently, Overton's generalized and speculative allegation of bias does not constitute a basis for recusal. See McCrae v. State, 510 So. 2d 874, 880 (Fla. 1987). Further, recusal is not mandated when a judge is required to resolve possibly competing credibility determinations with regard to the same witness, see Kokal v. State, 901 So. 2d 766, 774-75 (Fla. 2005), or when the judge has previously issued adverse judicial rulings against the same defendant. See Jackson v. State, 599 So. 2d 103, 107 (Fla. 1992). Accordingly, we affirm the denial of this recusal claim.
Overton next alleges that the State withheld information that Pesci was a pathological liar who exhibited antisocial traits including manipulative and conning behavior, lying, and deceitfulness. Overton admits that his counsel was aware of Pesci's prior crimes and knew that Pesci was a "consummate weasel and liar," but he contends that his attorney's knowledge of these facts is irrelevant because Pesci's official diagnosis was only discovered by the State nearly seven years after Overton's capital trial.
To establish a Brady violation, the defendant must demonstrate that (1) the evidence was favorable to the defendant, either because it was exculpatory or because it was impeaching; (2) it was suppressed by the State, either willfully or inadvertently; and (3) it was material, thereby causing prejudice to the defendant. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Even assuming that the evidence was favorable, this evidence was neither suppressed nor prejudicial. Overton admits that the evidence and diagnoses that served as the foundation for the State's contention that Pesci was a pathological liar did not exist until the doctors who evaluated Pesci prepared the reports for Pesci's 2006 Jimmy Ryce trial. Further, the record clearly demonstrates that Overton's defense team was well aware before Overton's capital trial of Pesci's prior criminal record, his pending criminal charges, and his propensity for lying. Thus, even though Overton did not have immediate access to reports relating to Pesci's official diagnosis, he did have full access, before his capital trial, to the underlying information. Further, evidentiary hearing testimony confirms that the defense was not only aware of Pesci's civil commitment proceeding, but was following those proceedings closely. Therefore, Overton's claim fails because Brady only applies to the discovery of information which had been known to the prosecution but unknown to the defense. Rhodes v. State, 986 So. 2d 501, 507 (Fla. 2008) (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)); see also U.S. v. Albanese, 195 F.3d 389, 393 (11th Cir. 1999) (holding that the prosecution did not violate Brady by failing to notify the defendant about inconsistent testimony of a witness because that testimony had been provided at a public proceeding).
Overton has also failed to establish prejudice. Although Pesci provided favorable testimony for the State during Overton's trial, we previously concluded the State had established the basis for that case even before discovery of Pesci as a witness. Overton v. State, 976 So. 2d 536, 556 (Fla. 2007) (Overton II). DNA evidence, consisting of the results from two separate tests, identified Overton as the person who murdered the MacIvors. Overton I, 801 So. 2d at 899. Overton's involvement in these murders was further corroborated by Guy Green, Overton's cellmate, who testified that Overton confessed the murders to him. Id. During trial, Green provided similar inculpatory testimony to that provided by Pesci. Id. at 885. We affirm the circuit court's denial of this claim.
Overton next alleges that the State committed a due process violation by maintaining inconsistent positions with respect to the credibility of James Pesci during Overton's 1999 trial and Pesci's 2006 Jimmy Ryce commitment proceedings. This claim fails for two primary reasons. First, Overton's claim is legally insufficient. Florida Rule of Criminal Procedure 3.851(d) requires any motion to vacate to be filed within one year after the judgment and sentence become final unless: (1) the evidence presented is newly discovered; or (2) the motion alleges that a fundamental constitutional right, held to apply retroactively, was established after that period. Overton alleges that this claim was timely filed within the required one-year time frame for newly discovered evidence because the facts that gave rise to Overton's due process claim did not arise until Pesci's January 2006 Jimmy Ryce trial. However, Overton's claim is legally insufficient under Rule 3.851(d)(2)(A) because Overton fails to properly allege or demonstrate how this evidence would probably produce an acquittal on retrial, the second essential element of the newly discovered evidence test. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). Overton's claim is also legally insufficient under Rule 3.851(d)(2)(B).
Further, Florida case law does not support Overton's claim. See Byrd v. State, 14 So. 3d 921, 924-25 (Fla. 2009). Our holding in Byrd regarding prosecutorial inconsistency and witness credibility is controlling here and supports the denial of Overton's claim. Accordingly, we affirm the circuit court's denial of Overton's due process claim.
Overton next contends that the circuit court erred in granting the State's motion to strike witnesses Guy Green and Stacie Brown. This claim fails to comply with Rule 3.851(e)(1)(D), which requires that the postconviction motion contain "a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought." Here, Overton's successive postconviction motion failed to mention either Green or Brown, and, as a result, Overton has failed to provide detailed allegations to demonstrate the relevancy of their testimony. Further, even if Overton had properly complied with Rule 3.851(e)(1)(D), the allegations with respect to these witnesses are procedurally barred. The evidence supporting Overton's allegation that Green recanted his trial testimony was based on a discussion between Brown and Green in 2003. Overton's initial postconviction evidentiary hearing occurred in 2004. Thus, this claim should have been presented, if at all, in Overton's initial postconviction motion. See Pacheco v. State, 613 So. 2d 617, 617 (Fla. 3d DCA 1993) (holding that the defendant was procedurally barred from raising a new claim in a successive postconviction motion when the defendant failed to demonstrate why he was unable to raise this claim in his initial postconviction motion). Accordingly, we affirm the circuit court's denial of this claim.
Overton next claims that Sandra Shaw provided newly discovered evidence which indicated that a private investigator was hired to conduct surveillance on the MacIvors shortly before the couple was murdered by some unknown person. The circuit court denied this claim, finding that little, if any, of Shaw's testimony constituted evidence which would be admissible at a subsequent trial. During the evidentiary hearing, Shaw discussed her minimal involvement in Southeast Investigative Services (SIS) and the surveillance of the MacIvors. She also testified with regard to several out of court statements by the owner of SIS, Martin Woodside. She did not know the name of the client who allegedly hired Woodside to survey the MacIvors, nor could she produce any documented evidence. She did not have any documents from SIS indicating when, where, or to what extent SIS investigated the MacIvors.
Given the highly inculpatory DNA evidence and testimony presented during trial directly linking Overton to the murders of Susan and Michael MacIvor, the evidence described above, even if entirely true and presented during trial, would probably not produce an acquittal on retrial. See Jones, 709 So. 2d at 521. Overton appears to recognize this fact as he does not allege that this evidence probably would produce an acquittal on retrial, but rather simply states that his attorneys would have investigated this lead further if they had known that SIS was monitoring the MacIvors. Consequently, we affirm the circuit court's denial of this claim because Overton's speculative claim fails the second prong of the newly discovered evidence test.
Finally, during his initial appeal, Overton filed a motion requesting DNA testing on several pieces of evidence from the crime scene. In two separate orders, the circuit court granted Overton's motion in part, and ordered the Florida Department of Law Enforcement (FDLE) to conduct testing on certain evidence. On November 15, 2004, FDLE issued a report detailing the results of the court-ordered DNA testing. In that report, FDLE indicated that "no analysis was preformed" on three sets of swabs taken from the body of Susan MacIvor contained within the Sexual Assault Victim's Examination (SAVE) kit. More than seven years later, on February 24, 2012, Overton filed a motion to compel the testing of those three swabs alleging that, despite his diligent efforts to secure testing, FDLE had failed to test all of the evidence as ordered by the circuit court. The circuit court denied Overton's motion as meritless.
To establish entitlement to DNA testing under Rule 3.853(c)(5)(A), a defendant must first demonstrate "that physical evidence that may contain DNA still exists." Lott v. State, 931 So. 2d 807, 820 (Fla. 2006) (quoting Fla. R. Crim. P. 3.853(c)(5)(A)). We noted on direct appeal that the examination of the swabs from Susan's body failed to reveal the presence of sperm cells, see Overton I, 801 So. 2d at 883, and Overton has failed to present any evidence that contradicts our holding. During the more than seven years between the FLDE report and his most recent motion to compel, the record demonstrates that Overton never contacted FDLE to determine why "no analysis was preformed" on the three sets of swabs. He also has failed to explain why FDLE would not test the three sets of swabs when it was judicially ordered to do so. Overton did not contact FDLE or the analyst that performed the testing (whose contact information was listed on the report), or seek relief from the circuit court after he received the FDLE report. Accordingly, we conclude that the circuit court properly found that the FDLE report-which states that it performed DNA analysis on some samples, but not the sets of swabs taken from Susan's body-was consistent with previous evidence which indicated that insufficient genetic material existed on these swabs to conduct DNA testing. We affirm the circuit court's denial of Overton's motion to compel.
For the foregoing reasons, we affirm the circuit court order denying Overton's claims.
It is so ordered. POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur. A True Copy ____________________
Thomas D. Hall
Clerk, Supreme Court
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Served:
MARK DAVID WILSON
SCOTT GAVIN
ROSEANNE ECKERT
SCOTT ANDREW BROWNE
HON. MARK HOWARD JONES, JUDGE
HON. DANNY L. KOLHAGE, CLERK