Bolin v. State, SC15–2149.

• Decision Date: 17 December 2015
• Docket Number: No. SC15–2149.,SC15–2149.
• Parties: Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

184 So.3d 492

Oscar Ray BOLIN, Jr., Appellant,

v.STATE of Florida, Appellee.

No. SC15–2149.

Supreme Court of Florida.

Dec. 17, 2015.

Jason Jervis Wise and Bjorn Erik Brunvand of Brunvand Wise, P.A., Clearwater, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

Oscar Ray Bolin, Jr., a prisoner under sentence of death, appeals an order from the Sixth Judicial Circuit denying his successive postconviction motions filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the circuit court's orders.

BACKGROUND

Oscar Ray Bolin, Jr., is scheduled for execution on January 7, 2016, for the first degree murder of Teri Lynn Matthews. Matthews' body was discovered on December 5, 1986, near the side of a road in rural Pasco County. Bolin v. State, 869 So.2d 1196, 1198 (Fla.2004). Her murder was unsolved until July 1990. Bolin was eventually implicated and convicted and sentenced to death for Matthews' murder in 1992, but that conviction was overturned by this Court because improper evidence was admitted at trial. State v. Bolin, 650 So.2d 19, 21 (Fla.1995) (concluding that trial court erred in finding waiver of spousal privilege based on defendant's deposition of ex-wife). On remand, Bolin was convicted and again sentenced to death. This Court overturned that conviction, finding that the trial court abused its discretion in denying Bolin's motion for individual voir dire of prospective jurors on the issue of pretrial publicity. Bolin v. State, 736 So.2d 1160, 1166–67 (Fla.1999).

The evidence presented at Bolin's third trial included:

Matthews'¹ body was discovered on December 5, 1986, near the side of a road in rural Pasco County. The body was found wrapped in a sheet imprinted with a St. Joseph's Hospital logo. The body had multiple head injuries, was shoeless, and was wet, although it had not rained recently. The victim's car keys were found close to the body. Evidence collected from the scene included nylon pantyhose and a pair of white pants. There was a single set of truck tire tracks leading to the body. The victim's car was found the next day by Matthews' boyfriend, Gary McClelland, who was worried about her disappearance and attempted to trace her steps after she left work the previous day. The victim's red Honda was found parked at the Land O' Lakes Post Office, with its headlights still on. The victim's mail was found scattered on the ground, and her purse was found undisturbed on the seat inside her car.

Bolin's half-brother, Phillip, testified that he was awakened by Bolin on the night of December 4, 1986. Bolin appeared to be nervous and told Phillip that he needed Phillip's help. The two walked outside, and then Phillip heard a moaning sound, which he thought could have been a wounded dog. Instead, he saw a sheet-wrapped body, and Bolin told him that the girl was shot near the Land O' Lakes Post Office. Bolin then walked over and straddled the body with his feet, raised a wooden stick with a metal end, and hit the body several times. Phillip said that he turned away because he was scared to watch, but compared the sound to hitting a pillow with a stick. Bolin next turned on a water hose and sprayed the body. Bolin demanded that Phillip help him load the body onto the back of a black Ford tow truck, and Phillip helped by picking up the body by the ankles. Phillip testified that he noticed there were no shoes on the body and that the girl was wearing pantyhose. Phillip refused Bolin's offer of money to go with him to dispose of the body, so Bolin went alone and returned twenty to thirty minutes later. He continued talking to Phillip about the girl, stating that she had been shot in a drug deal.

At school the next day, Phillip talked with his friend, Danny Ferns, about what happened the night before and took Danny to where the body had been. Danny testified at trial, to corroborate Phillip's account of the murder, that there were blood stains on the ground at the site and that the grass in the area was disturbed. The State presented other corroborating evidence, which included the testimony of Rosie Kahles Neal. At the time of the murder, Neal co-owned with her now-deceased husband Kahles and Kahles, Inc., the business that employed Bolin as a tow truck driver. She testified that the truck Bolin was driving on the night of the murder was not returned that night, and she thought the truck had been stolen by Bolin because he could not be located and it was the first call he had handled by himself. Neal testified that Bolin was late coming to work the next morning, was wearing the same clothes as he had the day before, and had a foul smell. She further testified that Bolin played with and carried a knife and got excited when the story of the missing girl, Matthews, was reported on the news. Her testimony also corroborated the murder weapon, as she testified that she gave Bolin a "tire buddy" on the night of the murder. The tire buddy was a two-foot-long wooden club, which was drilled out and filled with lead.

Michelle Steen also offered corroborating testimony. Michelle Steen was married to Bolin's cousin, David Steen. In 1987, while Bolin visited their home, he volunteered that he had killed and beaten a girl in Florida and put a hose down her throat, and that Phillip had watched him do it.

The State then offered the perpetuated videotaped testimony of Cheryl Coby, Bolin's ex-wife, who had died after the first trial. She had been a severe diabetic, was hospitalized numerous times in 1986, often brought home hospital towels and sheets from St. Joseph's Hospital, and identified the sheet that had been wrapped around Matthews' body as a hospital sheet resembling the ones she brought home. Cheryl Coby had a post office box at the Land O' Lakes Post Office, and Bolin picked up her social security checks there when she was in the hospital.

The State also offered DNA testimony indicating that Bolin could have been the source of the semen found in a stain on Matthews' pants. Federal Bureau of Investigation forensic serology expert John R. Brown testified that he could not eliminate Bolin as the contributor of the semen stain but could eliminate Gary McClelland, Matthews' boyfriend, as the source of the stain. David Walsh, a molecular biologist, extracted DNA from the stain on the pants and found that he could exclude both the victim and McClelland as the donors of the stain on the pants. Walsh found that five of the six bands of DNA detected in the stain matched five of the six bands from Bolin's DNA. Walsh was not able to visualize one band because of the small amount of DNA remaining on the pants. Dr. Christopher Basten, an expert in population genetic frequency, testified that Bolin was 2100 times more likely to be the source of the semen than a random, unrelated person.

Bolin, 869 So.2d at 1198–99. Bolin was convicted and sentenced to death, which this Court affirmed. Id. at 1198, 1205.

In 2010, this Court upheld the denial of postconviction relief. Bolin v. State, 41 So.3d 151, 153 (Fla.2010). Bolin filed a petition for a writ of habeas corpus in the federal district court, claiming "that his trial attorney was ineffective in (1) failing to object to testimony of Danny Ferns that he saw blood on the ground where Philip Bolin told him the body had been, and (2) failing to call Bolin's father, Ray Bolin, Sr., to rebut Danny Ferns' testimony." Bolin v. Sec'y Dept. of Corr., No. 8:10–cv–1571–T–27EAJ, 2013 WL 3327873, at *5 (M.D.Fla. July 1, 2013). The federal district court denied Bolin's habeas petition, and did not issue a certificate of appealability.Id. at *17.

On September 26, 2014, Bolin filed his first successive postconviction motion based on newly discovered evidence. Bolin alleged that an Ohio inmate confessed to Matthews' murder. The circuit court granted an evidentiary hearing, but the inmate, Steven Kasler, committed suicide before the hearing took place.

On December 9, 2014, Bolin filed a motion for postconviction DNA testing requesting that evidence in his case be compared to Kasler's DNA profile. The circuit court summarily denied Bolin's motion for DNA testing finding that Bolin failed to establish the availability of Kasler's DNA. This Court affirmed the denial of Bolin's motion for postconviction DNA testing. Bolin v. State, No. SC15–213, 40 Fla. L. Weekly S516, 2015 WL 5511523 (Fla. Sept. 18, 2015) (Table). Despite the circuit court's denial and this court's affirmance, DNA testing was ordered and completed August 26, 2015. The results excluded Kasler as a contributor to the samples collected from Matthews, but did not exclude Bolin.

Proceedings on Bolin's first successive postconviction motion continued when, on December 15, 2014, the circuit court denied two of Bolin's claims and granted leave to amend one claim. Bolin filed his amended first successive motion on February 13, 2015. On October 19, 2015, following an evidentiary hearing, the circuit court denied the amended motion.

Governor Scott signed Bolin's death warrant on October 30, 2015.

Bolin moved for rehearing on November 3, 2015, and subsequently filed his second successive motion for postconviction relief. Thereafter, the circuit court issued an order denying both the motion for rehearing and the second successive motion for postconviction relief.

ANALYSIS

In these proceedings, Bolin claims that newly discovered evidence establishes that someone else committed the murder in question and that the State suppressed evidence relating to the crime. Because we find that Bolin has failed to establish that he is entitled to relief, we affirm the circuit court's orders denying relief.

Newly Discovered Evidence

Steven Kasler

First, Bolin argues that the circuit court improperly denied his claim that newly discovered evidence in the form of Kasler's confession would probably...