Ray Jackson v. State of Florida , 39 Fla. L. Weekly Supp. 398 ( 2014 )

Supreme Court of Florida
____________
No. SC12-1159
____________
RAY JACKSON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[June 5, 2014]
PER CURIAM.
Ray Jackson and codefendant Michael Wooten were indicted and tried
together for the kidnapping and first-degree murder of Pallis Paulk. Jackson v.
State, 25 So. 3d 518, 522 (Fla. 2009). Both defendants were convicted of the
crimes, and Jackson was sentenced to death. On direct appeal, this Court affirmed
Jackson’s convictions and sentence of death. Id. at 536.
Jackson filed an initial motion to vacate his judgment of conviction for first-
degree murder and sentence of death, pursuant to Florida Rule of Criminal
Procedure 3.851. In addition, he filed a motion for DNA testing, pursuant to
Florida Rule of Criminal Procedure 3.853. After holding an evidentiary hearing on
some of the claims, the postconviction court denied relief, a holding that Jackson
contests. The postconviction court also denied his request for DNA testing.
Because the order concerns postconviction relief from a capital conviction
for which a sentence of death was imposed, this Court has jurisdiction of the
appeal under article V, section 3(b)(1), of the Florida Constitution. For the reasons
set forth below, we affirm the denial of postconviction relief and affirm the denial
of DNA testing.
FACTS
On direct appeal, this Court summarized the relevant facts of this case as
follows:
When Pallis Paulk was last seen alive by an acquaintance on
November 9, 2004, she was being forced into the trunk of a car by
Jackson. Her body was found in a shallow grave several months later.
The facts at trial concerning her murder came in through a series of
witnesses by which the following factual scenario was presented.
Around 3 a.m. on the morning of November 9th, Paulk arrived
at a friend’s house, looking for ecstasy pills. Her friend, Curtis Vreen,
testified that Paulk arrived in a red hatchback. He noticed that there
was someone else in the car, but he could not see the person’s face.
Vreen gave her half of an ecstasy pill and told her that was all he had.
Later that day, Paulk called her sixteen-year-old cousin, Calvin
Morris, and told Morris, “I have a lick for you, Cuz,” which meant
that she found a person to rob. Morris met Paulk at an apartment in
Daytona Beach, and when Morris arrived, he saw Ray Jackson
sleeping in bed. Concerned that Jackson might wake up, Morris
walked back to the car and waited for his cousin. Paulk arrived at the
car, carrying a Sponge Bob bag, which contained about two ounces of
cocaine, some marijuana, and approximately $800. She also had
-2-
men’s jewelry and a cell phone that did not belong to her. Together,
they drove to pick up Morris’s girlfriend in Sanford, Florida, and
smoked some of the marijuana. While they were driving, Paulk called
Vreen, looking for more ecstasy.
At some point after Paulk left Jackson’s apartment, Jackson
woke up and realized the theft. Jackson and codefendant Wooten
went to Latisha Allen’s apartment and asked to speak to Frederick
Hunt, who was Vreen’s cousin. Based on Jackson’s request, Hunt
called Vreen to see if he had heard from Paulk. Vreen responded that
Paulk had called him and provided the phone number from which
Paulk had called Vreen. After Hunt relayed this information to
Jackson, Jackson left.
Later in the day, Morris took Paulk to Vreen’s house, even
though Morris was afraid that Jackson would be there looking for
Paulk. Paulk went inside, telling Morris that she would be right back.
While Morris was waiting in the car, Wooten came outside and told
Morris that Paulk was using the restroom. Jackson and Paulk
eventually came out of the house and walked up to Morris’s car.
Morris saw that Jackson had a gun. Jackson asked, “Where is my
stuff at?” Morris immediately gave Jackson his marijuana back.
Paulk retrieved some additional items from Morris’s car and then left
with Jackson.
Morris noticed that Paulk looked upset, like she wanted to cry.
According to Morris, Jackson shoved Paulk into the back of a red
hatchback, and Jackson, Wooten, and Paulk drove away. Morris
initially followed them, but stopped after Jackson held a gun out of
the window. Morris immediately went to his grandmother’s house
and told her what had happened, but did not go to the police at that
time because he had outstanding warrants against him.
Jackson took Paulk to Allen’s apartment. Although Hunt,
Thomas, and Allen were not there when he first arrived, Jackson had
keys to Allen’s apartment. Allen and Hunt returned to Allen’s
apartment and saw a red hatchback parked in front. Jackson was
inside, sitting by the hallway that led to the bedrooms. Jackson told
Allen that he had been robbed and asked her to go look. Allen went
into the bathroom where she saw a woman in her bathtub, dressed but
with her hands tied behind her back. The woman told Allen that she
was fine and that it was her fault. After Allen left the bathroom,
Wooten told her not to be “dumb” like the victim or she could end up
the same way. Allen asked if Jackson was going to kill the woman,
-3-
and he nodded yes. Allen left to bail her boyfriend out of jail, but
Hunt remained.
Although a number of people were in Allen’s apartment,
Wooten and Jackson were the only people who entered the bathroom
after Allen left. Jackson asked if anybody wanted to “have fun” with
Paulk, but no one responded. Jackson obtained duct tape and, after
putting on some gloves, went into the bathroom with the duct tape.
Once night fell, Jackson had several people serve as lookouts.
Jackson then retrieved Paulk and carried her over his shoulder to one
of his cars, a blue Oldsmobile Delta 88. As they neared the car, Paulk
pleaded with Jackson not to put her in the trunk. Despite her pleas,
Jackson forced Paulk into the trunk. Paulk resisted, straightening her
legs so the trunk lid would not close. Jackson punched her in the face,
Hunt hit Paulk in the back of her legs, and they were finally able to
close the trunk. After retrieving his keys, Jackson left. Paulk’s
friends and family never saw her alive again.
After Hunt helped in Paulk’s kidnapping, Hunt and Jackson
became much closer. Hunt moved in with Jackson, selling drugs for
Jackson, answering his phones, and running different errands for him.
At some point, Hunt heard that a body had been found and told
Jackson. Jackson called somebody and asked that person to go to the
spot, but to “step lightly” and then call him back. On a different
occasion, when Hunt had Jackson’s phone, a person from Paulk’s
family called, accusing Jackson of doing something with Paulk.
When Hunt informed Jackson about the call, Jackson replied that he
was not “worried about it because they ain’t got no body, they ain’t
got no case.” After Paulk’s family posted flyers about Paulk in an
attempt to find her, Jackson asked Hunt to find one of the flyers and
tried to hang it up on his wall. Before Paulk’s body was found, Hunt
and Jackson’s relationship soured after Jackson borrowed $800 from
Hunt to buy cocaine and never repaid the money.
On April 17, 2005, Paulk’s body was discovered in a shallow
grave. There were no visible signs of injury, but her body was
severely decomposed. Using dental comparisons, a forensic dentist
affirmatively identified the body as Pallis Paulk. The medical
examiner opined that the cause of death was homicidal violence of
undetermined etiology. Although he was unable to determine the
precise method of death, he ruled out a drug overdose after reviewing
the toxicology report. Shortly after Paulk’s body was discovered,
-4-
Hunt and Allen approached the police together, providing information
regarding Paulk’s disappearance.
At trial, in his defense, Jackson presented Captain Brian
Skipper, an officer with the Daytona Beach Police Department, who
testified about an alleged serial killer who murdered three women
between December 26, 2005, and February 24, 2006. However, on
cross-examination, the State demonstrated substantial differences
between those crimes and the murder of Paulk.
During codefendant Wooten’s defense, Wooten called Quentin
Wallace, a fellow inmate who testified that while Hunt was in prison,
Hunt talked to him about his own case and said that he had lied about
both Wooten and Jackson and that Wooten was not even there.
Wooten also testified, alleging that he lived in Jacksonville at the time
of the crime and was at work on the day that the kidnapping occurred.
He further denied owning a red hatchback at the time of the crime.
Based on the above evidence, by special verdict forms, the jury
found that Jackson was guilty of first-degree murder under the
theories of premeditated murder and felony murder. The jury found
that Wooten was guilty of only first-degree felony murder. The jury
found that both Jackson and Wooten were guilty of kidnapping.
Jackson, 25 So. 3d at 522-24 (footnotes omitted).
During the penalty phase, the State presented victim impact statements from
family and friends, as well as a stipulation from Jackson that announced that
Jackson had previously been convicted of robbery, battery on a law enforcement
officer, and resisting arrest with violence. Id. at 524-25. Jackson then presented a
significant amount of mitigating evidence that this Court summarized as follows:
Jackson called numerous witnesses who testified about the poor
conditions in which he grew up. According to these witnesses, both
Jackson and his younger brother, Thayer, lived with their mother, who
abused drugs and disappeared for weeks at a time. Jackson became a
father figure and made sure that they had enough food to eat. After
Jackson’s younger sister died, Jackson tried to hang himself. Both of
the boys entered the foster care system. Thayer’s aunt raised Thayer,
-5-
but was unable to take Jackson. Jackson went to a mental health
facility, where he stayed for a considerable period of time. Jackson’s
wife also testified, asserting that Jackson was a good worker, a good
neighbor, a good provider, good to children, generous to others, and
had two children who needed him.
Finally, Dr. [Jeffrey] Danziger, a psychiatrist, reviewed
Jackson’s prior mental health history records, as well as other aspects
of the case. Dr. Danziger opined that Jackson suffers from “bipolar
disorder type II,” a mood disorder in which a person swings from
depressive episodes to manic episodes. Dr. Danziger thought it was
very unusual that Jackson attempted to hang himself at the age of
eight and was in a mental hospital at Macclenny from the age of eight
until he was almost ten.
Id. at 525.
The jury recommended that Jackson be sentenced to death by a vote of nine
to three. Id. Codefendant Wooten, however, received a life sentence, pursuant to
the jury’s recommendation. Id. at 535. After holding a Spencer 1 hearing in
Jackson’s case and after considering the jury’s recommendation, the trial court
sentenced Jackson to death, concluding that the aggravators outweighed the
mitigators. Id. at 525. In making this determination, the trial court found three
aggravators, no statutory mitigation, and twelve nonstatutory mitigating factors. 2
1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
2. The trial court found the following aggravators: (1) Jackson was
previously convicted of a prior violent felony; (2) the capital felony was committed
while Jackson was engaged in the commission of a kidnapping; and (3) the capital
felony was committed in a cold, calculated, and premeditated manner without any
pretense of moral or legal justification (CCP). The trial court found the following
as nonstatutory mitigation: (1) Jackson was severely neglected and abandoned
during childhood and suffered extreme loss of family and self-image at an early
-6-
The trial court specifically analyzed the relative culpability of codefendant
Wooten, who received a life sentence, and found that the evidence indicated that
the codefendant was an “underling of the defendant and was operating at the
defendant’s direction.” Id. at 525-26.
Jackson appealed his convictions and sentence of death, raising seven
claims. 3 This Court affirmed Jackson’s convictions for first-degree murder and
kidnapping and his death sentence for the murder. Id. at 536.
age (given some weight); (2) Jackson suffered from a very abusive childhood, both
from his family and while in foster care (given little weight); (3) Jackson suffered
from serious mental health issues (bipolar disorder) and was involuntarily
hospitalized in mental health hospitals for several years (given great weight); (4)
Jackson has a special bond and is good with children (given little weight); (5)
Jackson is capable of forming loving relationships with family members and
friends and has the support of his family (given little weight); (6) Jackson has been
a good and supportive son, brother, father, and husband (given little weight); (7)
Jackson has biological children and a stepchild with whom he has bonded and who
need his support and love (given little weight); (8) Jackson has worked and
contributed to his family and society in his various jobs (given little weight); (9)
Jackson had a good and close relationship with his neighbors (given little weight);
(10) Jackson was a caring child and adult and tried to help people (given little
weight); (11) Jackson demonstrated appropriate courtroom behavior throughout the
course of the trial (given very little weight); and (12) Jackson can receive a life
sentence and will die in prison (given little weight). Id. at 525 n.8.
3. On direct appeal, Jackson asserted that he was entitled to relief because:
(1) the State engaged in improper impeachment, coupled with improper argument
to the jury; (2) the trial court erred in allowing into evidence matters that were
irrelevant and prejudicial; (3) the trial court erred in denying Jackson’s request for
an instruction regarding circumstantial evidence; (4) the trial court erred in denying
Jackson’s motion for judgment of acquittal on the ground that evidence failed to
show that the victim died by the criminal agency of another; (5) the trial court
erred in denying Jackson’s requested jury instructions in the penalty phase; (6) the
-7-
Subsequently, Jackson filed a motion to vacate the judgment of conviction
for first-degree murder and sentence of death, raising twenty-three claims. 4 During
trial court imposed the death penalty upon an erroneous finding that CCP applied;
and (7) Jackson’s sentence of death was disproportionate. Id. at 526 n.9.
4. Specifically, Jackson’s motion for postconviction relief alleged: (1) trial
counsel was ineffective for failing to call Curtis Lewis during the guilt phase
because Lewis would have testified that he saw the victim after the State alleged
that she disappeared and had been killed; (2) trial counsel was ineffective for
failing to question prospective jurors during voir dire in order to uncover those
prospective jurors who were unable to give meaningful consideration to mitigating
evidence; (3) trial counsel was ineffective for failing to object and request a
Richardson inquiry, see Richardson v. State, 246 So. 2d 771 (Fla. 1971), or to
move for a mistrial when witness Larry Paulk materially changed his testimony as
to the last time that he had contact with the victim; (4) trial counsel was ineffective
for failing to conduct a deposition or interview Larry Paulk, which would have
alerted counsel that this witness had changed his testimony; (5) trial counsel was
ineffective during the guilt phase for failing to object and move for severance of
Jackson’s case during Wooten’s testimony, which prejudiced Jackson because
Wooten testified to inadmissible evidence of other wrongs Jackson committed; (6)
trial counsel was ineffective for presenting an unreasonable serial killer theory of
defense during the trial proceedings; (7) trial counsel was ineffective for failing to
request DNA testing or microscopic comparison of hairs found at the victim’s
shallow grave in order to exclude Jackson as the perpetrator; (8) trial counsel was
ineffective for failing to object to hearsay testimony by the medical examiner and
failing to object to improper bolstering by the medical examiner as to the work
done by C.A. Pound Laboratory and Dr. Jan Westberry; (9) trial counsel was
ineffective for failing to object or limit the opinion testimony of the medical
examiner that the victim’s death was a homicide; (10) trial counsel was ineffective
for failing to consult with an expert, such as a forensic scientist, to assess the
evidence and the crime scene investigation in Jackson’s case; (11) trial counsel
was ineffective for failing to adequately investigate the victim’s background as to
being an informant for the Metropolitan Bureau of Investigation (MBI) through
publically available resources; (12) trial counsel was ineffective for failing to
impeach hearsay testimony provided by witness Fred Hunt by calling Tonya
Jackson and failing to use the transcripts of a video-recorded interview to impeach
the testimony of V’Shawn Miles; (13) the prosecution violated Brady v. Maryland,
-8-
a Huff 5 hearing, the postconviction court summarily denied some of Jackson’s
claims and granted an evidentiary hearing in order for counsel to present evidence
on claims 1, 3, 4, 6, 10, 11, and 17. After both parties presented their witnesses,
the postconviction court denied all of the claims by written order. In addition, the
court denied Jackson’s motion for DNA testing.
ANALYSIS
In this appeal, Jackson raises sixteen claims, contending that his trial counsel
rendered ineffective assistance of counsel during the trial on numerous bases and
373 U.S. 83 (1963), and its progeny by not disclosing cell phone records to trial
counsel belonging to Curtis Vreen’s mother, which could have impeached the
prosecution’s time line; (14) trial counsel was ineffective for failing to object to
several improper closing arguments by the State; (15) trial counsel was ineffective
for failing to conduct an effective and coherent closing argument during the guilt
phase; (16) the combination of cumulative errors in the guilt phase entitle Jackson
to relief; (17) trial counsel was ineffective for failing to adequately investigate and
present mitigating evidence of Jackson’s prevalent substance abuse history and
how it affected Jackson; (18) trial counsel was ineffective for agreeing to permit
the trial court to take judicial notice of the date of release from the Florida
Department of Corrections for the kidnapping count to prove that Jackson was a
prison releasee reoffender; (19) trial counsel was ineffective for failing to present
additional witnesses to support Jackson’s community ties as a nonstatutory
mitigator; (20) the combination of cumulative errors in the penalty phase entitle
Jackson to relief; (21) the combination of cumulative errors in the guilt and penalty
phases entitle Jackson to relief; (22) section 945.10, Florida Statutes, which
prohibits Jackson from knowing the identify of his execution team, is
unconstitutional; and (23) Jackson may be incompetent at the time of his
execution. In addition, Jackson sought postconviction DNA testing of hairs that
were found around the gravesite.
5. Huff v. State, 495 So. 2d 145 (Fla. 1986).
-9-
that the postconviction court erred in denying relief. He also challenges the
postconviction court’s denial of his motion for DNA testing. For the reasons more
fully explained below, we reject each claim of error and deny relief. 6
I. Denial of Ineffective Assistance of Counsel Claims After Evidentiary
Hearing
Jackson first asserts that the postconviction court erred in denying his
ineffective assistance of counsel claims. Following the United States Supreme
Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), this Court has
explained that for ineffective assistance of counsel claims to be successful, two
requirements must be satisfied:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined. A court
considering a claim of ineffectiveness of counsel need not make a
specific ruling on the performance component of the test when it is
clear that the prejudice component is not satisfied.
6. We summarily deny Jackson’s three cumulative error claims. Because
Jackson has failed to show that any individual errors occurred, his cumulative error
claims fail. See McCoy v. State, 113 So. 3d 701, 723 (Fla. 2013) (“When a
defendant fails to prevail on any individual claim of ineffectiveness, a claim of
cumulative error cannot succeed.”). Accordingly, we deny claim 16 (involving
alleged guilt-phase cumulative errors); claim 20 (involving alleged penalty-phase
cumulative errors); and claim 21 (involving alleged cumulative errors occurring in
the guilt and penalty phases). In addition, as Jackson recognizes that two of his
claims are not ripe, we also deny claim 22 (pertaining to the constitutionality of
section 945.10, Florida Statutes) and claim 23 (alleging that Jackson may be
incompetent at the time of his execution).
- 10 -
Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010) (quoting Maxwell v.
Wainwright, 490 So. 2d 927, 932 (Fla. 1986)).
To establish deficiency under Strickland, the defendant must prove that
counsel’s performance was unreasonable under “prevailing professional norms.”
Morris v. State, 931 So. 2d 821, 828 (Fla. 2006) (quoting Strickland, 466 U.S. at
688). “A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689. The defendant
carries the burden to “overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel
v. Louisiana, 350 U.S. 91, 101 (1955)). “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id.As to the prejudice prong, the appropriate test is whether “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
Both prongs of the Strickland test present mixed questions of law and fact.
Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004). In reviewing a trial court’s
ruling after an evidentiary hearing on an ineffective assistance of counsel claim,
- 11 -
“this Court defers to the factual findings of the trial court to the extent that they are
supported by competent, substantial evidence, but reviews de novo the application
of the law to those facts.” Mungin v. State, 932 So. 2d 986, 998 (Fla. 2006).
We begin by addressing Jackson’s four ineffective assistance of counsel
claims that the postconviction court denied following an evidentiary hearing.
A. Failure to Personally Investigate the Testimony of Curtis Lewis
Jackson first asserts that the postconviction court erred in denying his claim
that his defense counsel was ineffective for failing to personally investigate the
statements of the victim’s brother, Curtis Lewis, and present his testimony to the
jury. Jackson contends that this testimony would have undermined the State’s case
by demonstrating that the victim was alive after November 9, 2004—the date that
the State argued that Jackson had murdered her.
At trial, the date of the victim’s disappearance was contested. Although the
victim’s cousin, Calvin Morris, testified that he saw Jackson kidnap the victim on
November 9, 2004, after she had stolen drugs and money from Jackson, the
victim’s family did not report her missing until after Thanksgiving when she failed
to attend a family gathering.
At the evidentiary hearing, Lewis testified that he thought he must have seen
the victim on Sunday, November 14, 2004. Trial counsel Gerald Keating testified
that he had relied on his defense investigator, who talked to Lewis prior to the trial,
- 12 -
and reported that Lewis related that he last saw the victim about three days before
his birthday, which was a date prior to November 9, 2004, when the State alleged
she disappeared.
The postconviction court found that trial counsel was not ineffective, noting
that counsel had used the same defense investigator in the past and was very
confident in him. The court further explained its reasoning as follows:
This Court finds that it was reasonable for Mr. Keating to rely
on a private investigator that he had great confidence in and he did not
act deficiently in relying on what he was told by his investigator about
Mr. Lewis.
Also, the State had very persuasive evidence before the jury
that the disappearance date of the victim, Ms. Paulk, was November 9,
2004, because of the traffic stop and arrest of Mr. Thomas which was
clearly November 9, 2004, and that being the day that the victim was
placed in the trunk of the car and last seen alive.
This Court finds there was strong evidence in front of the jury
that they could reasonably accept the November 9, 2004, date and that
even if trial counsel was deficient in Claim 1, which this Court finds
he was not, then the prejudice prong has not been shown.
After a full review, we hold that the record provides competent, substantial
evidence to support the postconviction court’s factual findings underpinning the
conclusion that trial counsel was not deficient, and the postconviction court did not
err in its conclusions of law.
At trial, after the exact date of the victim’s disappearance was contested,
defense counsel elicited testimony that some of the victim’s family initially
informed police that they had seen the victim well after November 9, 2004. The
- 13 -
victim’s uncle, Larry Paulk, testified at the trial, stating that he did not know the
date when the victim disappeared because she lived a very transient life. During
cross-examination by the defense, Larry Paulk recognized that he had initially told
the police that he thought he had last seen the victim around November 20, but on
redirect, he explained that he talked to the police after her remains were found six
months after he last saw her, and he had his dates confused. Fayonna Paulk, the
victim’s cousin, likewise testified about her difficulties in recalling exactly the last
day she saw the victim alive. The jury was thus aware that members of the
victim’s family were struggling to recall the exact date they last saw the victim,
particularly since the police did not question the family regarding the date of her
disappearance until her body was found almost six months later.
At the postconviction evidentiary hearing, the evidence established that trial
counsel Keating knew that various members of the victim’s family, including
Lewis, initially reported seeing the victim alive after her disappearance on
November 9. Further, the testimony demonstrated that Keating requested his
defense investigator to speak to these witnesses and show them a calendar. After
the meetings, the defense investigator wrote a memo to Keating that provided the
investigator’s impressions as to the interviews and informed counsel that the
witnesses were mistaken as to the dates. Keating testified at the evidentiary
hearing that he would have called Lewis to testify at trial if he knew that Lewis
- 14 -
would have confirmed his initial statement that he had seen the victim after
November 9, but that this was inconsistent with the investigator’s report.
Thus, the record establishes that trial counsel did not fail to investigate this
important evidence. To the contrary, defense counsel had investigated this lead,
but based on statements that Lewis gave to the defense investigator, defense
counsel decided not to call Lewis to testify. The fact that defense counsel’s trusted
investigator pursued the lead, rather than counsel personally, does not establish
deficiency, as Jackson suggests. Accordingly, because counsel pursued this
information and relied on the report of his investigator, the postconviction court
did not err in finding that trial counsel was not deficient.
Moreover, Jackson has failed to demonstrate prejudice. At trial, the State
called two of the victim’s family members, Larry Paulk and Fayonna Paulk, both
of whom initially told police that they had seen the victim after she had been
kidnapped on November 9, but later realized their recollections of these dates were
incorrect. Thus, the jury was aware of the difficulties that the victim’s family
experienced in recalling the date they last saw the victim because they were
interviewed months after her disappearance.
Lewis’s testimony at the evidentiary hearing likewise demonstrated that he
too was struggling to piece together the date he last saw the victim. While he
recalled that he saw the victim around his birthday, which was prior to the date of
- 15 -
the kidnapping on November 9, Lewis had to speculate as to which day he saw her,
based on his usual work schedule and the fact that the park at which they last met
was crowded. Further, Lewis did not dispute that he may have informed the
defense investigator that he last saw the victim a few days after his birthday—a
date that would have been before November 9, 2004.
In addition, there was compelling direct evidence at the trial showing that
the actual kidnapping occurred on November 9, 2004. Specifically, Fred Hunt
testified that on the same day that Jackson was looking for the victim after she
stole from him, Hunt and a friend were pulled over by the police and given a ticket,
establishing a link that the date of the kidnapping was November 9.
The equivocal testimony from Lewis presented at the evidentiary hearing
does not undermine our confidence in the outcome of the guilt phase. Thus, even
if Jackson could establish deficiency, he cannot establish prejudice. Accordingly,
we affirm the denial of relief on this claim.
B. Reliance on a Serial Killer Defense
Next, Jackson argues that the postconviction court erred in denying relief as
to his claim that defense counsel was ineffective for relying on a serial killer
defense and failing to retain an expert in criminal profiling. Specifically, Jackson
claims that his counsel was ineffective for calling police officer, Captain Brian
- 16 -
Skipper, to testify and inquiring as to whether it was possible that the victim was
killed by a serial killer who was in the area at the time.
After considering the evidence presented during the evidentiary hearing, the
postconviction court denied the claim, finding that trial counsel made a reasonable,
strategic choice in calling Captain Skipper and the benefit of presenting his
testimony outweighed the potential danger. The court stated as follows:
Mr. Keating had addressed during his testimony that he was
trying to develop “grains of reasonable doubt in the jury” and this is a
very common tactic used by criminal defense attorneys, particularly
where there is a strong case for the State, to bring out any and all
matters they feel might cause [s]ome reasonable doubt, either
sufficient to get a not guilty verdict or a lesser included offense or
even convince one juror out of twelve which can result in a hung jury.
This Court finds that tactic to be reasonable and it was not a
deficiency on the part of the trial counsel.
As previously noted, as to this Claim, there was some similarity
to the killing of the victim in this case and some of the victims of the
serial killer. The victims of the serial killer were drug users, some
were drug dealers, and some were either known prostitutes or thought
to be prostitutes, and at least two of the bodies of the women were
found in the same general area of where the victim’s body [was]
found and it was close in time, approximately a year to a year and a
half difference.
....
Finally, as to the second part of [this claim], that failing to
consult with experts regarding such a Claim, this Court finds that
experts regarding crime scene reconstruction, interpretation, either it
being at the apartment, the automobile, or the gravesite, since almost
six months had passed from the time of the victim’s disappearance to
when the dog walker discovered her skeletal remains when his dog
started scratching the ground, but experts would not have been helpful
and the fact the trial counsel did not hire any crime scene
reconstruction or interpretation experts was not unreasonable.
- 17 -
We affirm this ruling because the record provides competent, substantial evidence
to support the postconviction court’s factual findings that trial counsel was not
deficient, and the postconviction court did not err in its conclusions of law.
At the postconviction evidentiary hearing, Jackson presented the testimony
of Brent Turvey, a forensic scientist and criminologist. Turvey recognized that a
serial killer was in the area around the time that the victim was killed and that the
serial killer would rape prostitutes who were addicted to drugs and then shoot them
in the head. Turvey, however, disagreed with defense counsel’s decision to present
such a defense theory to the jury because Turvey thought the victim’s murder in
this case seemed to be different from those in the serial killer case. Turvey also
found other problems with the police’s investigation into the victim’s death,
including that the case did not seem to have a lead investigator at the time the
crime scene was analyzed and that the police assumed Jackson was the killer.
Defense counsel Keating testified at the evidentiary hearing that he chose to
present the serial killer defense as a possible explanation for Pallis’s death because
she shared similarities with the victims in the serial killer case and her body was
found in a similar location as the serial killer’s victims. In deciding to call Captain
Skipper, Keating knew that Captain Skipper would not provide solely favorable
testimony, but called him because Captain Skipper was the only witness who could
testify as to the serial killer evidence.
- 18 -
As this Court has long held, “[c]ounsel cannot be deemed ineffective merely
because current counsel disagrees with trial counsel’s strategic decisions. . . .
[S]trategic decisions do not constitute ineffective assistance of counsel if
alternative courses have been considered and rejected and counsel’s decision was
reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.
2d 1037, 1048 (Fla. 2000). Jackson bears the burden to “overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” McCoy, 113 So. 3d at 707 (quoting Michel, 350
U.S. at 101). “There is a strong presumption that trial counsel’s performance was
not ineffective.” Id. at 707-08.
Here, Jackson was seen by numerous witnesses kidnapping the victim after
she stole money and drugs from him, and the victim was never seen alive after this
time. When her body was eventually discovered, the body was so decomposed that
it provided little evidence as to how and when she died. In light of these unique
circumstances, defense counsel chose to present evidence that Pallis lived a very
risky lifestyle in an area where a serial killer was murdering victims similar to
Pallis and whose bodies were found in close proximity to Pallis’s. The serial killer
evidence could have planted seeds of doubt in the jury’s mind. Jackson has not
shown that his counsel was deficient in presenting an additional suspect for the
murder. Thus, we reject this claim.
- 19 -
C. Failure to Find Other Suspects Who May Have Committed the Murder
Jackson next asserts that trial counsel was ineffective for failing to find
online newspaper articles documenting the investigation of the Metropolitan
Bureau of Investigation (MBI), which was a collection of police agencies that
worked together to target organized prostitution and drug rings, including at
Cleo’s, the club where the victim worked. During the MBI’s investigation, the
victim was charged with one count of sale or delivery of cocaine, a charge that was
dismissed on June 25, 2002. Other performers at Cleo’s also were investigated and
charged with crimes. William Hinton wrote two articles published online
concerning this investigation, in which he discussed how the victim had initially
made allegations against the manager of Cleo’s, but later recanted. The
investigation and charges against Cleo’s were completed by January 2003, after
Cleo’s agreed to pay the cost of the investigation and civil penalties.
During the postconviction proceedings, defense counsel Keating was asked
about the failure to discover the internet articles pertaining to the MBI
investigation and his failure to present a retaliation theory to the jury that Cleo’s
managers may have been behind the murder in this case. After the evidentiary
hearing concluded, the postconviction court denied this claim, finding that trial
counsel was not deficient in failing to discover the information and that even if
counsel had been deficient, Jackson could not establish prejudice because the
- 20 -
victim “did not turn up missing until November of 2004, almost two years [after
the MBI investigation concluded]. This Court finds that it certainly would seem to
be unreasonable for a trial counsel to try to argue that something that happened
more than two years ago would still have resulted in [the victim’s] death because
of that . . . activity.”
We affirm the postconviction court’s denial of relief on this claim. While
testimony from the postconviction evidentiary hearing clearly shows that defense
counsel did not discover the internet articles regarding the MBI investigation,
Jackson failed to show that his counsel was deficient based on his failure to
uncover this information that occurred more than two years before the murder.
The entire record in this case demonstrates that counsel performed a reasonable
investigation. Counsel cannot be deemed deficient merely because he did not
discover the online articles that were uncovered as part of the extensive additional
discovery conducted during Jackson’s postconviction proceedings.
Moreover, even if this Court found that defense counsel was deficient in
failing to discover online articles regarding the MBI investigation, Jackson must
demonstrate prejudice—that the error, if any, undermines confidence in the
outcome. Here, while counsel could have presented additional evidence that a
person from Cleo’s may have had a motive to kill the victim, there were significant
problems with this MBI investigation theory, including: (1) the investigation
- 21 -
against Cleo’s had begun almost three years earlier and concluded twenty-two
months prior to the victim’s death; (2) numerous other performers were also being
investigated and provided statements to the investigators; (3) the victim continued
to work at Cleo’s after the investigation ended; and (4) Cleo’s was located over
sixty miles away from where the victim was killed. Had the jury been presented
with this theory, based on these inherent problems, this theory would have had
little chance of success and may have been a risky theory to present at all. The
failure to present this theory does not undermine our confidence in the outcome.
D. Failure to Present Drug Addiction Evidence During Penalty Phase
In this claim, Jackson asserts that his counsel was ineffective for failing to
focus on Jackson’s drug addictions during the penalty phase. At the evidentiary
hearing, Jackson called witnesses who testified that Jackson smoked marijuana
constantly, would drink brandy, and took ecstasy pills. In addition, he presented
the testimony of Dr. Daniel Buffington, an expert in pharmacology and toxicology,
who testified about Jackson’s exposure to drugs, including in utero, and how this
drug use would impact his thought processes. The postconviction court denied this
claim, finding that the failure to present Jackson’s drug history was a tactical
decision in which counsel chose instead to place the emphasis on Jackson’s mental
health issues and his difficult childhood.
- 22 -
We affirm, concluding that the postconviction court’s factual findings are
supported by competent, substantial evidence and that the court did not err as to its
legal conclusions. Trial counsel testified at the postconviction evidentiary hearing
that counsel knew Jackson abused drugs and tried to convey to the jury how
troubled Jackson’s life was from the beginning, including that his mother had used
PCP when she was pregnant; that Jackson grew up with a mother who was heavily
addicted to drugs; that Jackson tried to commit suicide at age eight; that he lived
for two years at a psychiatric hospital; that when Jackson stayed with his mother,
he was beaten until the State finally removed him; and that he later lived in group
homes. While defense counsel presented evidence regarding his mother’s in utero
drug usage to the jury, counsel did not present Jackson’s personal drug usage
because Jackson denied using heavy drugs and counsel did not believe that
evidence concerning the use of marijuana would be an effective mitigator in the
eyes of the jury.
We conclude that defense counsel made a reasonable, strategic decision to
not argue that Jackson’s addiction to marijuana was a reason not to impose the
death penalty. “Counsel cannot be deemed ineffective merely because current
counsel disagrees with trial counsel’s strategic decisions.” Occhicone, 768 So. 2d
at 1048. The record shows that this was a strategic decision and that alternative
courses for the penalty phase were considered and rejected. Moreover, “strategic
- 23 -
decisions do not constitute ineffective assistance of counsel if alternative courses
have been considered and rejected and counsel’s decision was reasonable under the
norms of professional conduct.” Id. Based on this record, Jackson has failed to
overcome the “strong presumption that trial counsel’s performance was not
ineffective.” McCoy, 113 So. 3d at 707-08.
Thus, he is not entitled to relief on this claim. We next turn to seven
ineffective assistance of counsel claims that the postconviction court summarily
denied without an evidentiary hearing.
II. Summary Denial of Ineffective Assistance of Counsel Claims
The postconviction court also summarily denied several of Jackson’s
ineffective assistance of counsel claims, finding that no evidentiary hearing was
required as to those claims. As this Court has held, a defendant is “normally
entitled to an evidentiary hearing on a postconviction motion ‘unless (1) the
motion, files, and records in the case conclusively show that the movant is entitled
to no relief, or (2) the motion or particular claim is legally insufficient.’ ”
Valentine v. State, 98 So. 3d 44, 54 (Fla. 2012) (quoting Franqui v. State, 59 So.
3d 82, 95 (Fla. 2011)). However, conclusory allegations are not sufficient—the
defendant bears the burden of “establishing ‘a prima facie case based on a legally
valid claim.’ ” Id. (quoting Franqui, 59 So. 3d at 96). “[T]o the extent there is any
question as to whether a rule 3.851 movant has made a facially sufficient claim
- 24 -
requiring a factual determination, the Court will presume that an evidentiary
hearing is required.” Walker v. State, 88 So. 3d 128, 135 (Fla. 2012). We now
address each of these summarily denied claims.
A. Failure to Object to Several Prosecutorial Closing Arguments
In this claim, Jackson asserts that the postconviction court erred in
summarily denying his claim that his trial counsel was ineffective for failing to
object to numerous prosecutorial closing arguments. Jackson first contends that
his counsel was ineffective for failing to object to closing arguments in which the
State recalled the evidence that the victim did not initially seem to object or ask for
help during the kidnapping, but later fought against being shoved into the truck of
the car. In a similar vein, Jackson challenges defense counsel’s failure to object to
closing comments about the victim’s four-year-old daughter, alleging that this
statement served only to evoke sympathy toward the victim.
This Court has held that the State is entitled to make comments recounting a
victim’s last hours alive if the comments are supported by the evidence, but the
State cannot create an imaginary first-person script depicting the victim’s suffering
or death or invite jurors to place themselves in the position of the victim. See
Rogers v. State, 957 So. 2d 538, 549 (Fla. 2007) (holding that the State’s
comments were proper when the State described the pain that the victim must have
felt when she was stabbed and pointed out that she was alive and conscious for an
- 25 -
additional ten to twenty minutes and had the opportunity to reflect on her life and
the opportunities she would no longer be able to act upon or that she would never
see her children again because the comments were based upon facts in evidence
and were not golden rule arguments).
We affirm the postconviction court’s denial of relief as to this portion of the
closing arguments claim. When the closing arguments are viewed in context, the
State was addressing the mental process experienced by the victim when she
initially did not attempt to escape or plead for her life at the point that she was
bound in the bathtub, but realized her impending death when she was carried from
the apartment and shoved into the trunk of a car. Witnesses testified how at that
point, she began to struggle and fight for her life, pleading with Jackson not to put
her in the trunk and apologizing to him. These arguments were not improper
because they were based upon facts in evidence. In the context of this case, the
State was simply discussing how the evidence showed that the victim realized her
impending death as she was being forced into the trunk.
In addition, Jackson contends that trial counsel was ineffective for failing to
object to improper vouching from the State when it argued that some of the
witnesses had the courage to testify in court and reminded the jury about the
testimony concerning threats against some of the witnesses. This Court has held
that “improper vouching or bolstering occurs when the State ‘places the prestige of
- 26 -
the government behind the witness or indicates that information not presented to
the jury supports the witness’s testimony.’ ” Wade v. State, 41 So. 3d 857, 869
(Fla. 2010) (emphasis added) (quoting Williamson v. State, 994 So. 2d 1000, 1013
(Fla. 2008)).
Here, the State was addressing the decisions of the witnesses to testify in
light of the fact that some of the witnesses had been threatened. Testimony at trial
supported that Jackson had threatened Hunt before he went to the police, which
motivated Hunt to seek help from the police, and codefendant Wooten made
threats in the courtroom during the trial itself. The comments at issue pertained to
threats that were facts in evidence before the jury. The State addressed the threats
when discussing the witnesses’ delay in approaching the police months after the
crime, but did not state that the threats were believable—reminding the jury to
consider the testimony before them when weighing the credibility of the witnesses.
This Court has previously denied a similar claim where a defendant asserted
that the State impermissibly vouched for a witness’s credibility by reminding the
jury that, although the witness had provided a different version of his story, the
witness had been threatened and was afraid for his own safety. See Williamson,
994 So. 2d at 1012-13. When viewed in context, these comments were not
improper vouching; the State was discussing evidence before the jury and asking
- 27 -
the jury to consider the evidence before it when weighing the credibility of the
witnesses.
Next, Jackson contends that his counsel was ineffective for failing to object
to the State’s rebuttal closing comments after defense counsel attacked the
credibility of the State’s witnesses. Specifically, the State in its rebuttal implicitly
rebuked the defense’s closing arguments, stating that challenges to the State’s
witnesses were “easy pickings” and agreeing with defense counsel that its own
witnesses had significant credibility issues based on the fact that most of the
witnesses were involved in illegal activities. We reject this claim because we
conclude that these comments were made in rebuttal to Jackson’s closing
arguments and were a fair response to defense counsel’s attack on the credibility of
the State’s witnesses.
Finally, Jackson contends that his counsel was ineffective for failing to
object to the State’s argument that the serial killer defense was “grasping [at]
straws,” asserting that the State denigrated the role of defense counsel and the
theory of the defense. As the Fifth District Court of Appeal has held, “[a]
prosecutor may not ridicule a defendant or his theory of defense.” Servis v. State,
855 So. 2d 1190, 1194 (Fla. 5th DCA 2003). In Servis, the Fifth District
concluded that it was improper for the prosecutor to make comments that defense
counsel was “doing all they can to throw whatever they can against the wall and
- 28 -
see what sticks.” Id. at 1193. We caution the prosecution against making
comments that ridicule a defendant for presenting a defense. However, in looking
to all of the arguments in this case, the State’s comment was relatively minor and
brief. The failure to object to such a comment did not “so affect the fairness and
reliability of the proceeding that confidence in the outcome is undermined.”
Braddy v. State, 111 So. 3d 810, 850 (Fla. 2012) (quoting Davis v. State, 928 So.
2d 1089, 1122 (Fla. 2005)), cert. denied, 134 S. Ct. 275 (2013).
Accordingly, for the reasons explained above, Jackson is not entitled to
relief on this claim.
B. Failure to Conduct an Effective, Competent Closing Argument
Jackson next asserts that the postconviction court erred in summarily
denying relief pertaining to his claim that trial counsel was ineffective for failing to
conduct an effective, competent closing argument. The postconviction court
denied this claim, succinctly stating that “[t]he trial record stands on its own in
reference to that. This Court finds that the closing arguments by the defense
counsel [were] logical, coherent, and trial counsel was not deficient in its closing
arguments.”
We agree. Defense counsel’s closing arguments were by no means cursory.
Based on the evidence presented by numerous witnesses that Jackson had
kidnapped the victim after she stole from him, trial counsel argued that Jackson
- 29 -
had simply intended to scare the victim and had released her. Defense counsel’s
closing arguments focused on whether the State left too many questions
unanswered and its failure to present any evidence as to how or when the victim
died. Defense counsel stressed that the victim lived a very risky lifestyle, that
numerous people could have caused her death, and that most of the witnesses who
testified for the State were co-conspirators to the kidnapping, who were attempting
to curry favor with the State. In fact, defense counsel discussed each witness
individually, identified the holes in each witness’s testimony and the
inconsistencies with their prior statements, and elaborated on their motives in
testifying. Accordingly, we hold that the postconviction court did not err in
concluding that defense counsel was not deficient in the presentation of closing
arguments.
C. Failure to Effectively Question the Jury Venire
As his next claim, Jackson contends that his trial counsel was ineffective for
failing to “effectively” question the jury venire about how they would weigh
nonstatutory mitigators. The postconviction court summarily denied this claim.
We affirm. In order to be entitled to relief, Jackson must identify “particular
acts or omissions of the lawyer that are shown to be outside the broad range of
reasonably competent performance under prevailing professional standards.”
Schoenwetter, 46 So. 3d at 546 (quoting Maxwell, 490 So. 2d at 932). Defense
- 30 -
counsel questioned the prospective jurors extensively about their opinions on the
death penalty, their ability to follow the law, their ability to consider mitigators in
general, and their opinions on mercy. The record shows that trial counsel focused
extensively on obtaining a jury that could consider and weigh mitigation in
determining the appropriate penalty. Jackson has not identified any particular
omissions of defense counsel outside the broad range of reasonably competent
performance simply because counsel did not ask additional, more specific
questions pertaining to each of the unlimited number of mitigators that counsel
could seek to present. Thus, we deny this claim.
D. Failure to Move for a Severance When Codefendant
Wooten Testified About Evidence of Other Crimes
In this claim, Jackson argues that his trial counsel was ineffective for failing
to object and move for a severance at the point in Jackson’s case when codefendant
Wooten testified in his own defense, but discussed evidence of other crimes
pertaining to the retrieval of guns after one of Jackson’s family members had been
previously killed. In addition, Jackson asserts that counsel should have argued for
a motion to sever based on a controlled call between Fred Hunt and codefendant
Wooten, which would not have been introduced at all if the cases were severed.
The record shows that trial counsel objected to the initial motion to
consolidate Wooten’s and Jackson’s trials. Further, trial counsel later
unsuccessfully moved to sever the defendants’ trials. While Jackson recognizes
- 31 -
this, he contends that his counsel was ineffective in any event because he did not
move for a severance at an additional point in time.
During the trial itself, the State called Hunt, who went with friends to the
police station months after the crime to report what they knew. Hunt was
subsequently arrested for kidnapping, and while in custody, agreed to call
codefendant Wooten to talk about the kidnapping and murder while the police
recorded the conversation. At trial, Hunt testified as to the contents of his recorded
conversation with Wooten, in which Wooten made certain incriminating
statements.
After the State rested, Wooten chose to testify in his own defense and
attempted to explain this conversation. According to Wooten, the day before the
recorded phone call, Hunt called Wooten and they had a conversation regarding
Jackson’s cousin being killed and Jackson’s desire to find out who killed his
cousin. A friend of theirs retrieved some guns and placed them in a car. Wooten
told Jackson to let the matter go, and Jackson agreed. According to Wooten’s trial
testimony, when he talked to Hunt on the day of the recorded phone call, Wooten
asserted that he thought Hunt was talking about that incident and his statements on
the phone had nothing to do with the victim’s disappearance.
Jackson’s trial counsel did not object to Wooten’s testimony concerning a
friend of Jackson’s retrieving the guns. However, very shortly after this testimony
- 32 -
was presented, Jackson’s trial counsel again moved for a severance, which the trial
court denied.
We conclude that counsel was not deficient for failing to move for a
severance at the time codefendant Wooten testified about the guns. Wooten did
not testify that Jackson directed the guns be placed in any car, but actually asserted
that Jackson agreed to leave the matter concerning his cousin alone. In addition,
the record shows that trial counsel repeatedly filed motions for severance. Counsel
is not deficient simply because the motions were denied. Accordingly, we affirm
the postconviction court’s denial of relief on this claim.
E. Failure to Seek Testing for Hairs Found at the Crime Scene
Jackson also contends that his trial counsel was ineffective for failing to seek
DNA testing or microscopic comparison of hairs found at the crime scene, which
could have excluded Jackson or could have potentially incriminated another
individual. The postconviction court summarily denied this claim.
To be entitled to relief, Jackson must identify “particular acts or omissions
of the lawyer that are shown to be outside the broad range of reasonably competent
performance under prevailing professional standards.” Schoenwetter, 46 So. 3d at
546 (quoting Maxwell, 490 So. 2d at 932). Again, this alleged failure does not
meet this standard. Identifying the donor of hairs found at an outdoor crime scene
over six months after the death would not have established that the hairs
- 33 -
definitively belonged to the murderer. Anyone could have visited the location
where the victim was found. Moreover, testing the DNA of the hairs may have
resulted in determining that they belonged to a person who was investigating the
crime scene. However, the presence of the unidentified hairs provided an
opportunity for counsel to plant seeds of reasonable doubt that the hairs may have
belonged to another person who had committed the murder. Thus, the
postconviction court did not err in summarily denying this claim.
F. Failure to Impeach Hearsay Testimony by Hunt Pertaining to Threats
Jackson next contends that his trial counsel was ineffective during the guilt
phase because counsel failed to impeach two witnesses: (1) Fred Hunt regarding
Hunt’s testimony that he was told Jackson threatened to kill him; and (2) V’Shawn
Miles regarding the defendant’s lack of knowledge of the murder.
Specifically, in his motion for postconviction relief, Jackson alleged that
trial counsel was ineffective for failing to impeach Hunt’s testimony that Tonya
Jackson told Hunt that Jackson had threatened to kill Hunt. Jackson contended that
trial counsel should have called Tonya Jackson in rebuttal “to refute that she ever
told Mr. Hunt that Mr. Jackson threatened to kill him.” At the Huff hearing,
Jackson again reiterated that he requested an evidentiary hearing on this claim,
stating that he could present testimony from Tonya Jackson that she never told
Hunt that Jackson had threatened to kill him. This evidence was relevant because
- 34 -
Hunt claimed he was afraid of Jackson and approached the police regarding the
crime only after Tonya Jackson informed him that Jackson threatened to kill him.
The postconviction court summarily denied this claim because Jackson “failed to
make an argument and showing what those persons would say and how it would
have been effective.”
We conclude that the postconviction court erred in summarily denying this
claim. Here, Jackson made specific allegations that his counsel was ineffective for
failing to call Tonya Jackson to rebut a statement that Hunt asserted she made.
Further, in both the postconviction motion and at the Huff hearing, Jackson
asserted that Tonya Jackson would refute that she made that statement to Hunt.
Thus, since Jackson sought to introduce Tonya Jackson’s testimony that she never
stated to Hunt that Jackson threatened to kill Hunt, the postconviction court erred
in failing to grant an evidentiary hearing on this claim. Moreover, Tonya Jackson
was present at the evidentiary hearing and was questioned as to her ex-husband’s
drug usage. Questioning her as to whether she made a statement to Hunt would
not have required much additional time during the hearing and would have put this
issue to rest.
However, even taking all of Jackson’s factual allegations relating to this
claim as true, we conclude that he is not entitled to relief. After the victim stole
Jackson’s money and drugs, Jackson called numerous people looking for the
- 35 -
victim. A significant number of witnesses testified that they saw Jackson kidnap
the victim at gunpoint or that they saw the victim bound in a bathtub with Jackson
guarding her. Jackson showed Latisha Allen a woman bound in a bathtub and told
Allen that he had been robbed. When Allen asked if Jackson would kill her, he
nodded. Numerous witnesses testified that once night fell, Jackson posted lookouts
and then carried the victim to a car, shoved her in a trunk, and when she fought
against being placed into the trunk, she was punched in the face until they could
close the lid. After the victim disappeared, Jackson made several incriminating
remarks, including telling multiple people that without a body, the State did not
have a case. In addition, when one of Jackson’s friends told Jackson that a body
had been found, Jackson called another person on the phone and asked that person
to go to the “spizzot” but “step lightly” and then call him back. The challenged
testimony at issue—whether Tonya Jackson told Hunt that Jackson threatened to
kill Hunt—was relevant only to rebut the defense’s suggestion that Hunt had
another motive to testify. However, Hunt’s story was supported by Latisha Allen,
who testified as to most of the same events.
Accordingly, although the postconviction court erred in not granting an
evidentiary hearing, accepting all of the factual allegations as true, our confidence
in the outcome is not undermined. Thus, we deny relief as to this portion of the
claim. Nevertheless, we take this opportunity to remind trial courts of the critical
- 36 -
importance of evidentiary hearings in death penalty cases on issues that require
factual development.
The second portion of this claim involves whether counsel was ineffective
for failing to impeach V’Shawn Miles with a transcript of her initial police
interview. Specifically, Miles testified at trial that she knew Jackson and asked
him directly whether he had killed the victim. He responded, “No body, no case.”
She then asked whether the victim had robbed him, to which he responded that
people “shouldn’t fuck with people[’s] things.” On cross-examination, defense
counsel attempted to impeach Miles by asking her whether, when she initially
talked to the police, she had “also said that [Jackson] said ‘I don’t know what
happened to her.’ ” Miles denied it, stating, “I don’t recall saying that.” Defense
counsel did not impeach Miles by using the transcripts from her police interview.
We affirm the summary denial of relief as to this portion of the claim.
Whether Miles initially said that Jackson also made this statement does not impact
the “no body, no case” statements to which she testified at trial. Miles’s testimony
about this conversation shows that Jackson was not actually admitting to anything,
but some of his comments were not denying his involvement. In fact, other
witnesses also testified that Jackson made similar statements to them.
Accordingly, Jackson is not entitled to relief on either of the portions of this
claim.
- 37 -
G. Failure to Make the State Meet Its Burden to Prove PRR Status
In his final ineffective assistance of counsel claim, Jackson argues that the
postconviction court erred in summarily denying his claim that trial counsel was
ineffective when counsel permitted the court to take judicial notice of certified and
signed copies of documents that recognized Jackson’s date of release from the
Florida Department of Corrections, which was used to establish that Jackson
qualified as a prison releasee reoffender (PRR).
Even in his challenge to the postconviction court’s summary denial of this
claim, Jackson fails to assert why his counsel was deficient or allege how he could
have been prejudiced by the fact that Jackson’s PRR status was established through
taking judicial notice of the documents, instead of presenting witnesses to establish
this same fact. He does not contend that the State would have been unable to prove
PRR status without the court taking judicial notice of the documents. Thus, we
deny relief on this claim.
III. Denial of DNA Testing
In his last claim on appeal, Jackson asserts that the postconviction court
erred in denying his motion for postconviction DNA testing. Specifically, while a
defendant has the right to request DNA testing, in order to be entitled to testing, the
petition must include the following:
(1) a statement of the facts relied upon in support of the
motion, including a description of the physical evidence containing
- 38 -
DNA to be tested and, if known, the present location or last known
location of the evidence and how it originally was obtained;
(2) a statement that the evidence was not previously tested for
DNA, or a statement that the results of previous DNA testing were
inconclusive and that subsequent scientific developments in DNA
testing techniques likely would produce a definitive result establishing
that the movant is not the person who committed the crime;
(3) a statement that the movant is innocent and how the DNA
testing requested by the motion will exonerate the movant of the
crime for which the movant was sentenced, or a statement how the
DNA testing will mitigate the sentence received by the movant for
that crime;
(4) a statement that identification of the movant is a genuinely
disputed issue in the case and why it is an issue or an explanation of
how the DNA evidence would either exonerate the defendant or
mitigate the sentence that the movant received;
(5) a statement of any other facts relevant to the motion; and
(6) a certificate that a copy of the motion has been served on
the prosecuting authority.
Fla. R. Crim. P. 3.853(b). This Court has explained that “[i]t is the defendant’s
burden to explain, with reference to specific facts about the crime and the items
requested to be tested, how the DNA testing will exonerate the defendant of the
crime or will mitigate the defendant’s sentence.” Lott v. State, 931 So. 2d 807,
820 (Fla. 2006) (quoting Robinson v. State, 865 So. 2d 1259, 1265 (Fla. 2004)).
The postconviction court denied the motion for DNA testing of hairs from
the crime scene, holding that Jackson had not met his burden because he failed to
show that “there may be DNA which would exonerate him or mitigat[e] his
sentence.” The postconviction court explained that the hair issues were a very
minor aspect of the State’s case because they were found at the gravesite, an
- 39 -
outdoor public area, six months after the victim went missing. Moreover,
numerous law enforcement officers were in the vicinity, as were the medical
examiner’s personnel. Thus, the court concluded that the hairs could have come
from many sources. In addition, the court reviewed how the facts in Jackson’s
case were affected by his allegations pertaining to the hairs, noting that in this case,
Jackson was seen kidnapping the victim, indicating that he was going to kill the
victim before she disappeared, and then uttering statements after the body was
found in which he did not deny that he killed the victim.
We affirm the postconviction court’s denial of Jackson’s motion for DNA
testing, as we have previously affirmed the denial of relief in similar situations.
For example, in Lott, this Court affirmed the denial of relief where a defendant
sought DNA testing of hairs found in the victim’s shower drain and on a bed
pillow because the defendant failed to present any reason to suspect that the hairs
were connected to the murder, and not simply hairs left behind by normal guests,
and he did not show “a reasonable probability that [he] would have been acquitted
or would have received a lesser sentence” if they had been tested. Lott, 931 So. 2d
at 821 (quoting Fla. R. Crim. P. 3.853(c)(5)(C)). Thus, this Court concluded that
Lott was engaging in a fishing expedition based on pure conjecture. See also
Overton v. State, 976 So. 2d 536, 568 (Fla. 2007) (affirming the denial of a request
for DNA testing of hairs because “evidence that the hairs came from someone
- 40 -
other than Overton or the victims would fail to prove or disprove any theory in this
case because it is impossible to establish when or how the hairs may have become
attached to the tape” and thus the hairs did not necessarily belong to the person
who committed the murder). For similar reasons, we affirm the postconviction
court’s denial of this claim.
CONCLUSION
For the reasons addressed above, we affirm the postconviction court’s denial
of relief.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Volusia County,
R. Michael Hutcheson, Judge - Case No. 2005-32590 CFAES
Raheela Ahmed and Maria Christine Perinetti, Assistant Capital Collateral
Regional Counsels, Middle Region, Tampa, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner,
Assistant Attorney General, West Palm Beach, Florida,
for Appellee
- 41 -