Jason Dirk Walton v. State of Florida & SC17-1083 Jason Dirk Walton v. Julie L. Jones, etc. ( 2018 )


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  •          Supreme Court of Florida
    ____________
    No. SC16-448
    ____________
    JASON DIRK WALTON,
    Appellant,
    vs.
    STATE OF FLORIDA,
    Appellee.
    ____________
    No. SC17-1083
    ____________
    JASON DIRK WALTON,
    Petitioner,
    vs.
    JULIE L. JONES, etc.,
    Respondent.
    [May 17, 2018]
    PER CURIAM.
    This case is before the Court on appeal by Jason Walton from an order
    denying a motion to vacate sentences of death under Florida Rule of Criminal
    Procedure 3.851. Walton also petitions this Court for writ of habeas corpus. We
    have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained
    below, we affirm the postconviction court’s denial of relief and deny Walton’s
    petition for writ of habeas corpus.
    FACTUAL AND PROCEDURAL BACKGROUND
    Walton was convicted and sentenced to death for the execution-style
    murders of three individuals that occurred during the commission of a robbery and
    burglary. Walton v. Dugger (Walton IV), 
    634 So. 2d 1059
    , 1060 (Fla. 1993).
    On direct appeal, this Court affirmed the convictions but vacated the
    death sentences because the trial court failed to afford Walton an
    opportunity to confront two codefendants whose confessions and
    statements were presented during the penalty phase. See [Walton v.
    State (Walton I), 
    481 So. 2d 1197
    ,] 1198-1201 [(Fla. 1985)]. The trial
    court conducted a second penalty phase and the jury again
    recommended death on all three convictions. See Walton v. State
    [(Walton II)], 
    547 So. 2d 622
    , 623 (Fla. 1989).[1] The trial court again
    imposed the death penalty on all three convictions, and this Court
    affirmed those sentences on appeal. See 
    id. at 626.
    The United States
    1. The trial judge found the following aggravating factors:
    (1) the murders were committed during the commission of a robbery
    and burglary; (2) the murders were committed for pecuniary gain; (3)
    the murders were committed in an especially heinous, atrocious, or
    cruel fashion; (4) the murders were committed in a cold, calculated,
    and premeditated manner; and (5) the murders were committed for the
    purpose of avoiding a lawful arrest. The trial judge noted that the first
    two aggravating circumstances would be considered as one. The trial
    judge found no mitigating factors and imposed the death sentence.
    Walton 
    II, 547 So. 2d at 624
    .
    -2-
    Supreme Court denied certiorari review. See Walton v. Florida
    [(Walton III)], 
    493 U.S. 1036
    (1990).
    Walton filed his initial postconviction motion pursuant to
    Florida Rule of Criminal Procedure 3.850, in which he alleged that
    trial counsel was ineffective. See Walton [IV], 634 So. 2d [at] 1060-
    61 . . . . After an evidentiary hearing, the trial court denied the motion.
    See 
    id. Walton appealed
    that denial to this Court and petitioned for a
    writ of habeas corpus. See 
    id. This Court
    initially relinquished
    jurisdiction to the trial court for resolution of a public records request
    by Walton. See 
    id. at 1062.
    On remand, Walton amended his
    previously filed rule 3.850 motion to add claims based upon
    information discovered in the public records and newly adduced
    evidence. See Walton v. State [(Walton V)], 
    847 So. 2d 438
    , 442-43
    (Fla. 2003). One such claim was that trial counsel was ineffective for
    failure to adequately investigate and prepare for trial. See 
    id. at 442
          n.2. The trial court again denied all of Walton’s claims. See 
    id. at 443.
    Walton appealed that denial to this Court and again petitioned
    this Court for a writ of habeas corpus. See 
    id. This Court
    affirmed
    the denial of Walton’s postconviction motion and denied habeas
    relief. See 
    id. at 460.
    [This Court] also denied a subsequent petition
    for a writ of habeas corpus filed by Walton pursuant to Ring v.
    Arizona, 
    536 U.S. 584
    (2002). See Walton v. Crosby, 
    859 So. 2d 516
          (Fla. 2003).
    Walton thereafter filed a successive postconviction motion
    pursuant to Florida Rule of Criminal Procedure 3.851. See Walton v.
    State [(Walton VI)], 
    3 So. 3d 1000
    , 1002 (Fla. 2009). The trial court
    summarily denied relief. See 
    id. at 1002.
    Walton appealed that denial
    to this Court, and this Court affirmed the order of the postconviction
    court. See 
    id. Walton v.
    State (Walton VII), 
    77 So. 3d 639
    , 640-41 (Fla. 2011). In 2010, Walton
    filed a second successive motion for postconviction relief pursuant to rule 3.851.
    
    Id. at 641.
    The postconviction court denied Walton’s motion. See 
    id. at 642.
    This
    Court affirmed the order of the postconviction court. 
    Id. at 644.
    -3-
    On May 7, 2015, Walton filed a third successive postconviction motion
    asserting that he should either be resentenced to life or receive a new penalty phase
    due to the fact that his codefendant, Richard Cooper, was resentenced to life based
    on a cumulative review of the evidence. On December 28, 2015, the
    postconviction court denied Walton’s motion. On March 7, 2016, Walton filed a
    notice of appeal to this Court. On September 16, 2016, this Court relinquished
    jurisdiction to allow for rehearing. On October 4, 2016, the postconviction court
    granted rehearing.
    On June 20, 2016, Walton filed a fourth successive postconviction motion,2
    asserting that changes in Florida’s capital sentencing law are part of the cumulative
    review of newly discovered evidence. On January 13, 2017, the postconviction
    court denied Walton’s motion. This appeal follows.
    Additionally, on June 8, 2017, Walton filed a petition for habeas relief. This
    Court stayed the proceedings on September 15, 2017, and then, on September 27,
    2017, issued an order for Walton to show cause why Hitchcock v. State, 
    226 So. 3d 216
    (Fla.), cert. denied, 
    138 S. Ct. 513
    (2017), does not control.
    2. Walton’s fourth successive postconviction motion reasserted, in part,
    Walton’s third successive postconviction motion arguments in light of Hurst v.
    State, 
    202 So. 3d 40
    (Fla. 2016), cert. denied, 
    137 S. Ct. 2161
    (2017).
    -4-
    ANALYSIS
    We affirm the postconviction court’s denial of relief for the reasons
    discussed below.
    Walton’s Cumulative Analysis Claim
    Walton contends that a proper Swafford3/Hildwin4 cumulative analysis
    requires consideration of all changes in the law that might apply if a new trial were
    granted. We find this claim to be meritless.
    To obtain a new trial based on newly discovered evidence, a
    defendant must meet two requirements. First, the evidence must not
    have been known by the trial court, the party, or counsel at the time of
    trial, and it must appear that the defendant or defense counsel could
    not have known of it by the use of diligence. Second, the newly
    discovered evidence must be of such nature that it would probably
    produce an acquittal on retrial. See Jones v. State, 
    709 So. 2d 512
    ,
    521 (Fla. 1998) (Jones II). Newly discovered evidence satisfies the
    second prong of the Jones II test if it “weakens the case against [the
    defendant] so as to give rise to a reasonable doubt as to his
    culpability.” Jones 
    II, 709 So. 2d at 526
    (quoting Jones v. State, 
    678 So. 2d 309
    , 315 (Fla. 1996)). If the defendant is seeking to vacate a
    sentence, the second prong requires that the newly discovered
    evidence would probably yield a less severe sentence. See Jones v.
    State, 
    591 So. 2d 911
    , 915 (Fla. 1991) (Jones I).
    In determining whether the evidence compels a new trial, the
    postconviction court must “consider all newly discovered evidence
    which would be admissible” and must “evaluate the weight of both
    the newly discovered evidence and the evidence which was
    introduced at the trial.” 
    Id. at 916.
    This determination includes
    3. Swafford v. State, 
    125 So. 3d 760
    (Fla. 2013).
    4. Hildwin v. State, 
    141 So. 3d 1178
    (Fla. 2014).
    -5-
    whether the evidence goes to the merits of the case or
    whether it constitutes impeachment evidence. The trial
    court should also determine whether this evidence is
    cumulative to other evidence in the case. The trial court
    should further consider the materiality and relevance of
    the evidence and any inconsistencies in the newly
    discovered evidence.
    Jones 
    II, 709 So. 2d at 521
    (citations omitted).
    When . . . the postconviction court rules on a newly discovered
    evidence claim after an evidentiary hearing, this Court “review[s] the
    trial court’s findings on questions of fact, the credibility of witnesses,
    and the weight of the evidence for competent, substantial evidence.”
    Green v. State, 
    975 So. 2d 1090
    , 1100 (Fla. 2008). In addition, “we
    review the trial court’s application of the law to the facts de novo.”
    
    Id. Swafford, 125
    So. 3d at 767-68 (alteration in original) (quoting Marek v. State, 
    14 So. 3d 985
    , 990 (Fla. 2009)).
    As to the first prong of the newly discovered evidence test, the
    postconviction court found that the resentencing of codefendant Cooper qualified
    as newly discovered evidence. We conclude that the postconviction court’s
    finding is supported by competent, substantial evidence. See Jones 
    II, 709 So. 2d at 521
    (“First, in order to be considered newly discovered, the evidence ‘must have
    been unknown by the trial court, by the party, or by counsel at the time of trial, and
    it must appear that defendant or his counsel could not have known [of it] by the use
    of diligence.’ ” (quoting Torres–Arboleda v. Dugger, 
    636 So. 2d 1321
    , 1324-25
    (Fla. 1994))).
    -6-
    The second prong of the newly discovered evidence test requires that “the
    newly discovered evidence must be of such nature that it would probably produce
    an acquittal on retrial.” 
    Id. (citing Jones
    I, 591 So. 2d at 911
    , 915). The
    postconviction court found that Walton failed to show that the resentencing of his
    codefendant, Cooper, to a life sentence would probably result in a life sentence for
    Walton on retrial. Walton contends that the postconviction court erred because a
    proper cumulative analysis, as performed in Swafford and Hildwin, requires
    consideration of changes in the law. Walton asserts that his newly discovered
    evidence, considered together with the changes to Florida’s capital sentencing law,
    i.e., Hurst, would probably result in him receiving a life sentence; thus he is
    entitled to resentencing.
    As an initial matter, this Court has consistently applied its decision in Asay
    v. State (Asay V), 
    210 So. 3d 1
    (Fla. 2016), cert. denied, 
    138 S. Ct. 41
    (2017),
    denying the retroactive application of Hurst v. Florida, 
    136 S. Ct. 616
    (2016), as
    interpreted in Hurst, to defendants whose death sentences were final when the
    Supreme Court decided Ring. See, e.g., 
    Hitchcock, 226 So. 3d at 217
    ; Zack v.
    State, 
    228 So. 3d 41
    , 47-48 (Fla. 2017), petition for cert. filed, No. 17-8134 (U.S.
    Mar. 12, 2018); Marshall v. Jones, 
    226 So. 3d 211
    , 211 (Fla. 2017), petition for
    cert. filed, No. 17-7869 (U.S. Feb. 20, 2018); Willacy v. Jones, No. SC16-497,
    
    2017 WL 1033679
    , at *1 (Fla. Mar. 17, 2017); Lambrix v. State, 
    217 So. 3d 977
    ,
    -7-
    988-89 (Fla.), cert. denied, 
    138 S. Ct. 312
    (2017); Bogle v. State, 
    213 So. 3d 833
    ,
    855 (Fla. 2017), cert. denied, 
    138 S. Ct. 738
    (2018); Gaskin v. State, 
    218 So. 3d 399
    , 401 (Fla.), cert. denied, 
    138 S. Ct. 471
    (2017). Walton’s death sentences
    became final in 1990. See Walton III, 
    493 U.S. 1036
    . Therefore, Walton is among
    those defendants whose death sentences were final before Ring. Thus it is clear
    that Hurst is not applicable to Walton.
    Turning to what may be considered within a cumulative analysis, this Court
    stated in Swafford:
    The Jones standard requires that, in considering the effect of the
    newly discovered evidence, we consider all of the admissible evidence
    that could be introduced at a new trial. Jones 
    II, 709 So. 2d at 521
    . In
    determining the impact of the newly discovered evidence, the Court
    must conduct a cumulative analysis of all the evidence so that there is
    a “total picture” of the case and “all the circumstances of the case.”
    Lightbourne v. State, 
    742 So. 2d 238
    , 247 (Fla. 1999) (quoting
    Armstrong v. State, 
    642 So. 2d 730
    , 735 (Fla. 1994)).
    
    Swafford, 125 So. 3d at 775-76
    . This Court did not consider any change in law
    within Swafford. See generally 
    id. In Swafford,
    this Court reviewed an appeal
    from a postconviction court’s finding that newly discovered negative acid
    phosphatase5 (AP) results would not have probably produced an acquittal. See 
    id. at 766.
    This Court disagreed, holding that the newly discovered AP evidence “so
    5. Acid phosphatase is commonly found in seminal fluid. See 
    Swafford, 125 So. 3d at 766
    .
    -8-
    significantly weakened the case against Swafford that it g[ave] rise to a reasonable
    doubt as to his culpability for the sexual battery.” 
    Id. at 768.
    This Court then, in
    performing a cumulative analysis, held that the newly discovered evidence
    changed the entire character of the case and affected the admissibility of evidence
    that was originally presented to the jury. 
    Id. at 775-78.
    In no part of this Court’s
    decision in Swafford was there a discussion or consideration of statutory or
    decisional changes in the law. See 
    id. Although this
    Court stated that the newly
    discovered evidence test “focuses on the likely result that would occur during a
    new trial with all admissible evidence at the new trial being relevant to that
    analysis,” there is no mention of any changes in law that must be taken into
    account within a cumulative analysis. See 
    id. at 776.
    Thus this Court did not hold
    in Swafford that a cumulative analysis requires consideration of changes in the law
    that might apply if a new trial were granted. See generally 
    id. Neither did
    this Court consider any changes in law while performing a
    cumulative analysis in Hildwin. See generally 
    141 So. 3d 1178
    . In Hildwin, this
    Court reviewed an appeal from a postconviction court’s denial of a motion based
    on newly discovered evidence that established that the DNA did not belong to the
    defendant. See 
    id. at 1183.
    This Court held that the newly discovered evidence
    established that the DNA found on the victim’s underwear and on the washcloth at
    the crime scene belonged to another suspect, which supported the defendant’s story
    -9-
    that he saw the killer wipe his face with a “white rag.” See 
    id. at 1192.
    This Court
    then held that the cumulative effect of the newly discovered evidence weakened
    the case against Hildwin to such an extent that it gave rise to a reasonable doubt as
    to his culpability. See 
    id. at 1193.
    This Court did not discuss any change in law
    that was considered within the cumulative effect of the newly discovered evidence.
    See generally 
    id. Thus in
    neither Swafford nor Hildwin did this Court hold that a cumulative
    analysis requires consideration of changes in the law that might apply if a new trial
    were granted. See generally Swafford, 
    125 So. 3d 760
    ; Hildwin, 
    141 So. 3d 1178
    .
    This Court applies the Witt v. State, 
    387 So. 2d 922
    (Fla. 1980), standard to
    determine whether decisional changes in the law require retroactive application.
    See Coppola v. State, 
    938 So. 2d 507
    , 510-11 (Fla. 2006); see also State v. Glenn,
    
    558 So. 2d 4
    , 6 (Fla. 1990) (“[A]ny determination of whether a change in the law
    requires retroactive application should be decided upon traditional principles
    pertaining to changes in decisional law as set forth in Witt.” (citing McCuiston v.
    State, 
    534 So. 2d 1144
    , 1146 (Fla. 1988))). Viewing decisional changes in the law
    as newly discovered “facts” would erase the need for a retroactivity analysis
    pursuant to Witt. See 
    Coppola, 938 So. 2d at 510-11
    .
    Yet Walton contends that he satisfies the second prong of the newly
    discovered evidence standard because it is probable that a resentencing jury will
    - 10 -
    not unanimously return death recommendations, and thus, it is probable that life
    sentences will be imposed. Clearly, Walton is attempting to circumvent this
    Court’s retroactivity holding in Asay V when he asserts that Hurst constitutes a
    newly discovered fact and is applicable through a cumulative analysis. Thus we
    conclude that Walton’s attempt to shoehorn Hurst retroactivity through a newly
    discovered evidence claim is meritless. Accordingly, we hold that the
    postconviction court properly denied Walton’s motion.
    Walton’s McCloud6 Claim
    In Walton’s third successive postconviction motion he asserted that he is
    entitled to a life sentence because his sentences of death are disproportionate to the
    life sentences imposed on all of his codefendants. The postconviction court found
    that the life sentences of Walton’s two other codefendants, Terry Van Royal, Jr.
    and Jeffrey McCoy, were irrelevant with regard to proportionality because Van
    Royal was resentenced to life based on a legal error by the trial judge and McCoy
    received a life sentence as part of a negotiated plea. Walton now contends that the
    postconviction court’s reasoning is contrary to McCloud. However, McCloud is
    inapposite because Walton’s codefendants received lesser sentences due to purely
    legal reasons. See Walton 
    II, 547 So. 2d at 623
    ; see also Jeffries v. State, 
    222 So. 6
    . McCloud v. State, 
    208 So. 3d 668
    (Fla. 2016).
    - 11 -
    3d 538, 547 (Fla. 2017) (“[W]e have historically refused to review the relative
    culpability of codefendants when a codefendant pleads guilty and receives a lesser
    sentence as a result.”); Farina v. State, 
    937 So. 2d 612
    (Fla. 2006) (holding that the
    life sentence of a codefendant was irrelevant because the basis for the codefendant
    receiving the life sentence was purely legal and had no connection to the nature or
    circumstances of the crime or to the defendant’s character or record). Moreover,
    this Court previously directly addressed Walton’s culpability compared to Van
    Royal, finding that “Walton was indeed more culpable than Van Royal.” Walton
    
    V, 847 So. 2d at 449
    .
    Walton’s Hurst Claims
    Walton also raises several Hurst claims,7 which we reject. This Court has
    held that Hurst does not apply retroactively to capital defendants whose sentences
    were final before the United States Supreme Court issued its opinion in Ring. Asay
    
    V, 210 So. 3d at 7-14
    . In Hitchcock, this Court affirmed its decision in Asay V,
    denying the retroactive application of Hurst v. Florida, as interpreted in Hurst, to
    defendants whose death sentences were final when the United States Supreme
    Court decided Ring. 
    Hitchcock, 226 So. 3d at 217
    ; see also 
    Zack, 228 So. 3d at 47
    -
    7. Walton claims that: (1) his death sentences violate the Eighth
    Amendment and the Florida Constitution; and (2) the retroactivity rulings in Asay
    V and Mosley v. State, 
    209 So. 3d 1248
    (Fla. 2016), violate the Eighth Amendment
    principles announced in Furman v. Georgia, 
    408 U.S. 238
    (1972).
    - 12 -
    48; 
    Marshall, 226 So. 3d at 211
    ; Willacy, 
    2017 WL 1033679
    , at *1; Lambrix v.
    State, 
    227 So. 3d 112
    , 113 (Fla.), cert. denied, 
    138 S. Ct. 312
    (2017); 
    Bogle, 213 So. 3d at 855
    ; 
    Gaskin, 218 So. 3d at 401
    . Walton is among those defendants
    whose death sentences became final before Ring.
    This Court has previously rejected Eighth Amendment Hurst claims. See
    Hannon v. State, 
    228 So. 3d 505
    , 513 (Fla.), cert. denied, 
    138 S. Ct. 441
    (2017);
    
    Lambrix, 227 So. 3d at 113
    ; Asay v. State (Asay VI), 
    224 So. 3d 695
    , 702-03 (Fla.
    2017); 
    Hitchcock, 226 So. 3d at 216-17
    . Walton disagrees with the retroactivity
    cutoff that this Court set in Asay V; however, that decision is final.8
    Walton’s Habeas Claim
    Walton’s petition sought relief pursuant to the Supreme Court’s decision in
    Hurst v. Florida, and our decision on remand in Hurst. This Court stayed
    Walton’s appeal pending the disposition of Hitchcock. After this Court decided
    Hitchcock, Walton responded to this Court’s order to show cause arguing why
    Hitchcock should not be dispositive in this case. After reviewing Walton’s
    response to the order to show cause, as well as the State’s arguments in reply, we
    conclude that Walton is not entitled to relief. Walton’s death sentences became
    final in 1990. Walton III, 
    493 U.S. 1036
    . Thus Hurst does not apply retroactively
    8. The Supreme Court denied certiorari review on August 24, 2017. See
    Asay v. Florida, 
    138 S. Ct. 41
    , 41-42 (2017).
    - 13 -
    to Walton’s sentences of death. See 
    Hitchcock, 226 So. 3d at 217
    . Accordingly,
    we deny Walton’s petition for habeas relief.
    CONCLUSION
    For the reasons discussed, we affirm the postconviction court’s denial of
    Walton’s motion for postconviction relief and deny his petition for writ of habeas
    corpus.
    It is so ordered.
    LABARGA, C.J., and LEWIS, POLSTON, and LAWSON, JJ., concur.
    PARIENTE and CANADY, JJ., concur in result.
    QUINCE, J., recused.
    NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
    IF FILED, DETERMINED.
    An Appeal from the Circuit Court in and for Pinellas County,
    W. Douglas Baird, Senior Judge – Case No. 521983CF000630XXXXNO
    And an Original Proceeding – Habeas Corpus
    Neal Dupree, Capital Collateral Regional Counsel, and Bryan E. Martinez, Staff
    Attorney, Southern Region, Fort Lauderdale, Florida; and Martin J. McClain of
    McClain & McDermott, P.A., Wilton Manors, Florida,
    for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Timothy A.
    Freeland, Senior Assistant Attorney General, Tampa, Florida,
    for Appellee/Respondent
    - 14 -