Calhoun v. State
| Decision Date | 21 November 2019 |
| Docket Number | No. SC18-1174,No. SC18-340,SC18-340 |
| Citation | 312 So.3d 826 |
| Parties | Johnny Mack Sketo CALHOUN, Appellant, v. STATE of Florida, Appellee. Johnny Mack Sketo Calhoun, Petitioner, v. Mark S. Inch, etc., Respondent. |
| Court | Florida Supreme Court |
An Appeal from the Circuit Court in and for Holmes County, Christopher Nida Patterson, Judge - Case No. 302011CF000011CFAXMX And an Original Proceeding – Habeas Corpus
Robert Friedman, Capital Collateral Regional Counsel, and Stacy R. Biggart and Elizabeth Spiaggi, Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida, for Appellant/Petitioner
Ashley Moody, Attorney General, and Lisa A. Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee/Respondent
Johnny Mack Sketo Calhoun appeals the denial of his motion to vacate his conviction of first-degree murder filed under Florida Rule of Criminal Procedure 3.851, and he also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons below, we affirm the circuit court's order denying Calhoun relief from his conviction and deny his habeas petition.
The facts of this case, including the overwhelming evidence of Calhoun's guilt, were fully set out in this Court's opinion on direct appeal. See Calhoun v. State , 138 So. 3d 350 (Fla. 2013), cert. denied , ––– U.S. ––––, 135 S. Ct. 236, 190 L.Ed.2d 177 (2014). Briefly, between the evening hours of December 16, 2010, and the morning hours of December 17, 2010, Calhoun kidnapped the victim, Mia Chay Brown, from his trailer in Holmes County, Florida, bound her with coaxial cable and duct tape and forced her into the trunk of her own car. Id. at 367. Calhoun then drove the victim's car to a convenience store located between Enterprise and Hartford, Alabama, where he was seen by witnesses at approximately 6 a.m. on December 17, including one witness who testified that Calhoun had scratches and dried blood on his hands and was driving a car that matched the description of the victim's vehicle. Id. at 355, 366. Within hours of Calhoun's stopping at the convenience store, other witnesses reported seeing smoke from the highway in Geneva, Alabama. Id. at 356. The victim's burned body and car were found on December 20 in a wooded area in Geneva, Alabama, which was approximately 1488 feet from a campsite that Calhoun was known to frequent, see id. at 366-67, approximately thirteen miles south of the Alabama convenience store1 where Calhoun was seen on the morning of December 17, approximately ten miles north of Calhoun's trailer in Florida, see id. at 356, 363, and approximately 1.5 miles from an Alabama residence belonging to acquaintances of Calhoun's, one of whom found a wet and dirty Calhoun wrapped in sleeping bags and lying on the ground in her family's shed on the morning of December 18, and invited him inside her family's home, see id. at 355-56. Calhoun left the home of his acquaintances shortly after the acquaintances learned that he and the victim had been reported missing. Id. at 355. Two days later, on December 20, law enforcement found him hiding under his bed in his trailer and arrested him. Id. at 354, 357.
After hearing the evidence summarized in this Court's decision on direct appeal, including witness accounts tying the victim to Calhoun and his trailer shortly before her disappearance and tying Calhoun to the victim's car shortly before her murder, DNA evidence placing both Calhoun and the victim's blood on the same blanket in Calhoun's trailer, DNA evidence establishing that blood on the cardboard of a roll of duct tape recovered from Calhoun's trailer was a major donor match to the victim and a minor donor partial match to Calhoun, DNA evidence placing the victim's hair in Calhoun's trailer, and testimony establishing that items belonging to the victim were recovered from Calhoun's trailer, id. at 366, Calhoun's jury found him guilty of first-degree murder and kidnapping, id. at 358. Following the penalty phase presentation, the jury recommended death by a vote of nine to three for the murder. Id. at 359. The trial court followed the jury's recommendation and sentenced Calhoun to death for the murder and also sentenced Calhoun to 100 years of imprisonment for the kidnapping. Id.
On direct appeal, this Court affirmed Calhoun's convictions and sentences.2
Id. at 368. Thereafter, the United States Supreme Court denied Calhoun's petition for a writ of certiorari. Calhoun v. Florida , 574 U.S. 895, 135 S. Ct. 236, 190 L.Ed.2d 177 (2014).
In 2015, Calhoun filed an initial motion for postconviction relief, which the circuit court subsequently granted him leave to amend four times. Following an evidentiary hearing, the circuit court denied relief on all of Calhoun's guilt-phase claims but vacated Calhoun's death sentence and ordered a new penalty phase pursuant to Hurst v. State , 202 So. 3d 40 (Fla. 2016). Calhoun appeals the circuit court's denial of several of his guilt-phase claims, the circuit court's denials of motions in which Calhoun sought to amend his postconviction motion two additional times and to reopen the evidentiary hearing, and the circuit court's use of the State's written arguments in its order denying relief on Calhoun's guilt-phase claims. He also petitions this Court for a writ of habeas corpus.
Calhoun first claims that newly discovered evidence pertaining to Doug Mixon, which Calhoun argues implicates Mixon in the victim's murder, requires a new trial. More specifically, Calhoun contends that Mixon, who is the father of Calhoun's former girlfriend, told Robert Vermillion, who is related to the victim's husband, that Mixon murdered the victim. Calhoun also claims that Natasha Simmons, whose former boyfriend is acquainted with Mixon, had a suspicious encounter with Mixon near the Alabama-Florida line around the time of the victim's disappearance that tends to implicate Mixon in the victim's murder. We disagree that this evidence entitles Calhoun to a new trial because when considered cumulatively with all of the evidence that would be admissible on retrial, the newly discovered evidence from Simmons and Vermillion—which, as the circuit court found, poses admissibility and credibility problems—does not so weaken the State's case against Calhoun as to give rise to a reasonable doubt as to Calhoun's culpability.
As we have explained, the following two requirements must be met to set aside a conviction on the basis of newly discovered evidence:
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) ).
Marek v. State , 14 So. 3d 985, 990 (Fla. 2009).
Marek , 14 So. 3d at 990 ; see also Swafford v. State , 125 So. 3d 760, 775-76 (Fla. 2013) ( .
Further, when, as in Calhoun's case, the circuit 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). This Court "review[s] the trial court's application of the law to the facts de novo." Id.
In this case, as the circuit court ruled, the newly discovered evidence poses both admissibility and credibility problems. Regarding Vermillion, Mixon's alleged statements to Vermillion requesting forgiveness for doing a lot of things he is not proud of are hearsay and, thus, not admissible as substantive evidence. Moreover, in light of Calhoun's direction not to call Doug Mixon as a witness at trial, it would not be possible to impeach Mixon—who testified at the evidentiary hearing and denied that he was involved in or had confessed to the victim's...
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