Mills v. State

• Decision Date: 25 April 2001
• Docket Number: No. SC01-775.,SC01-775.
• Citation: 786 So.2d 547
• Parties: Gregory MILLS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

786 So.2d 547

Gregory MILLS, Appellant, v. STATE of Florida, Appellee.

No. SC01-775.

Supreme Court of Florida.

April 25, 2001.

Todd G. Scher, Litigation Director, Capital Collateral Regional Counsel South, Fort Lauderdale, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley and Judy Taylor Rush, Assistant Attorneys General, Daytona Beach, FL, for Appellee.

PER CURIAM.

Gregory Mills, a prisoner under sentence of death and for whom a death warrant has been signed, appeals the trial court's order denying postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. We affirm the trial court's denial of relief.

On February 13, 2001, Mills filed a consolidated petition for writ of habeas corpus, petition for extraordinary relief, and motion to reopen the direct appeal. Mills raised two issues: (1) that the recent decision in Apprendi v. New Jersey, 528 U.S. 1018, 120 S.Ct. 525, 145 L.Ed.2d 407 (1999), establishes that the override scheme under which Mills was convicted violates the United States and Florida Constitutions; and (2) Tedder v. State, 322 So.2d 908 (Fla.1975), was arbitrarily applied in this case as established by Keen v. State, 775 So.2d 263 (Fla.2000).

On March 22, 2001, Governor Bush signed a death warrant ordering that Gregory Mills' sentence of death be carried out on May 2, 2001. The facts and procedural history leading up to the time the death warrant was signed are set forth in Mills v. Moore, 786 So.2d 532 (Fla. 2001).

Pending this Court's decision on Mills' consolidated petition for writ of habeas corpus, on or around March 27, 2001, Mills made several demands for public records in the trial court.

On April 12, 2001, we released our opinion as to Mills' pending consolidated petition for writ of habeas corpus. We held that Apprendi is not applicable to this case since the majority opinion in Apprendi indicates that Apprendi does not affect capital sentencing schemes. We also held that Tedder was not arbitrarily applied in this case and that Keen is not new law, but merely an application of the long-standing Tedder standard.

On April 16, 2001, Mills filed in the trial court a motion to vacate judgments of conviction and sentence with request for leave to amend, for evidentiary hearing and for stay of execution. Mills raised three claims: (1) there is newly discovered evidence that Vincent Ashley, the codefendant in this case, gave false testimony at trial and lacked credibility, which establishes a reasonable basis for the jury's life recommendation thereby rendering the trial judge's override of the recommendation in error;¹ (2) the "during the course of a felony" aggravating circumstance constitutes an automatic aggravating circumstance and Mills is entitled to reconsideration of this issue and sentencing relief; and (3) Mills has been denied access to public records, which violates his right to due process and equal protection as well as the Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Florida Constitution.

After an evidentiary hearing on April 17, 2001, on the newly discovered evidence issue, the trial court on April 18, 2001, issued an order denying Mills' request for postconviction relief. As to claim I, the trial court held that the new version of Ashley's statement was nothing more than another inconsistent statement made by this witness. The trial court concluded that the new version of Ashley's statement would not have made a difference in the outcome of this case, citing Jones v. State, 591 So.2d 911 (Fla.1991). As to claim II, the trial court held that the issue raised was considered by this Court on direct appeal and in two later petitions for writ of habeas corpus, and is therefore procedurally barred, citing Medina v. State, 573 So.2d 293 (Fla.1990). As to claim III, the trial court held that the demands for public records filed in this case were overly broad, of questionable relevance, and unlikely to lead to discoverable evidence. For the reasons more fully set forth below, we affirm the trial court's denial of relief on the three issues raised in the postconviction motion.

Claim I

Absent an abuse of discretion, a trial court's decision on a motion based on newly discovered evidence will not be overturned on appeal. See Woods v. State, 733 So.2d 980 (Fla.1999)

; State v. Spaziano, 692 So.2d 174 (Fla.1997); Parker v. State, 641 So.2d 369 (Fla.1994). In this case, the trial court did not abuse its discretion in denying Mills' motion to vacate his sentence based upon newly discovered evidence.

In order to obtain relief on a claim of newly discovered evidence, a claimant must show, first, that the newly discovered evidence was unknown to the defendant or defendant's counsel at the time of trial and could not have been discovered through due diligence and, second, that the evidence is of such a character that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512 (Fla.1998). The same standard is applicable when the issue is whether a life or death sentence should have been imposed. See Jones v. State, 591 So.2d 911, 915 (Fla.1991)

. We agree with the trial court that the second prong of this test is not met.

Recently in Kight v. State, 784 So.2d 396 (Fla.2001), the defendant and his codefendant Hutto were involved in the murder of a cab driver. Kight was convicted and sentenced to death. Hutto was sentenced to life (he was not charged with a capital offense) after a plea bargain and he agreed to provide the State with certain information. The murder occurred in 1982. Kight filed a second motion for postconviction relief after he discovered that Hutto bragged to another inmate named William O'Kelly that he actually killed the cab driver. Kight alleged that O'Kelly's testimony regarding Hutto's new version of events was newly discovered evidence. The trial court held an evidentiary hearing and determined that while O'Kelly's testimony corroborated Hutto's involvement in the crime, it did not exonerate Kight. There was enough evidence without O'Kelly's testimony for the jury to determine that Kight actually killed the victim. The trial court denied this claim. On appeal, we held that, "even if O'Kelly's testimony had been presented `at trial,' it would not have `probably produce[d] acquittal' and the trial court `on retrial' correctly determined that this newly discovered evidence did not warrant either a new trial or a new penalty phase proceeding." Kight at 402.

Similarly, in this case, the issue is whether Ashley's new version of events would probably produce an acquittal, or rather, whether it would probably have changed the trial judge's decision on the jury override issue. The difference between what Ashley told Mills' attorney and what was presented at trial does not exonerate Mills or change the fact that Mills was the shooter. In both versions, Mills was the one who took the gun with him to the burglary, Mills was the one who carried the gun across the handlebars of his bicycle, Mills was the one who crawled through the window of the house (or at least crawled through first), Mills was the one who had the shotgun inside the house, Mills had the shotgun when the shot was fired that ultimately killed the victim, Mills had the gun when he left the house, and Mills disposed of the gun in a nearby ditch either by tossing it there for hiding or inadvertently leaving it there after he and Ashley huddled for a short time after the murder. Mills' involvement in the murder is the same in both versions. As the trial court below correctly points out, Ashley's new story, referred to as "new evidence" only puts into doubt Ashley's credibility. The new story does not go to the substance of the State's case. At trial, Ashley's credibility was already at issue; the judge and jury knew he lied to officers immediately following the shooting and that he was given immunity for his involvement in this crime and others in exchange for his testimony.

The trial court in this case did not abuse its discretion when it determined that Mills' claim of newly discovered evidence would not produce an acquittal or life sentence on retrial.

Claim II

Since his direct appeal, Mills has repeatedly argued that a person found guilty of felony murder is more likely to receive a death sentence than a person found guilty of premeditated murder because once he has been found guilty of felony murder (in this case, murder committed during the course of a burglary), the aggravating factor that the murder was committed in the course of another dangerous felony becomes automatic. We have repeatedly denied this claim. Mills v. Singletary, 606 So.2d 622 (Fla.1992) (holding Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), was not a change in the law that warranted retroactive application and thus Mills' claim that the felony murder aggravator was an unconstitutional automatic aggravating circumstance in felony murder cases was procedurally barred); Mills v. Dugger, 559 So.2d 578 (Fla.1990); Mills v. State, 476 So.2d 172, 178 (Fla.1985) (citing State v. Dixon, 283 So.2d 1 (Fla.1973)). The Eleventh Circuit Court of Appeals also reviewed Mills' claim as to this issue and found Mills' claim not only procedurally barred, but meritless as well. Mills v. Singletary, 161 F.3d 1273, 1287 (11th Cir. 1998).

As the trial court held, this issue is procedurally barred. See Medina; Parker v. Dugger, 550 So.2d 459 (Fla.1989)

.

Claim III

Mills argues the trial court erred in denying his requests for public records pursuant to Florida Rule of Criminal Procedure 3.852(h)(3).² On or about March 27, 2001, Mills filed demands for public records from a variety of state agencies pursuant to article I, section 24, Florida Constitution, Florida Rule of Criminal Procedure 3.852(h)(3) and (i), chapter 119,...