Correll v. State, 88474

• Court: United States State Supreme Court of Florida
• Citation: 698 So.2d 522
• Decision Date: 10 April 1997
• Docket Number: No. 88474,88474
• Parties: 22 Fla. L. Weekly S188 Jerry William CORRELL, Appellant, v. STATE of Florida, Appellee.

Page 522

698 So.2d 522 22 Fla. L. Weekly S188 Jerry William CORRELL, Appellant,
v.
STATE of Florida, Appellee. No. 88474. Supreme Court of Florida. April 10, 1997.
Rehearing Denied Aug. 28, 1997.

Todd G. Scher, Chief Assistant CCR, Office of the Capital Collateral Representative, Miami, for Appellant.

Page 523

Robert A. Butterworth, Attorney General and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, Florida, for Appellee.

PER CURIAM.

Jerry William Correll appeals an order denying his motion for postconviction relief and his motion to disqualify the trial judge. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

In 1986 Correll was tried and convicted of the first-degree murders of his ex-wife, Susan Correll, her sister, Marybeth Jones, their mother, Mary Lou Hines, and the Corrells' five-year-old daughter, Tuesday. The jury recommended the death penalty for each of the murders and the trial court imposed four death sentences. This Court affirmed the convictions and death sentences in Correll v. State, 523 So.2d 562 (Fla.1988). This Court denied Correll's petition for writ of habeas corpus and first motion for postconviction relief in March of 1990. Correll v. Dugger, 558 So.2d 422 (Fla.1990). Correll then filed a petition for federal habeas corpus relief in the United States District Court for the Middle District of Florida. Correll subsequently filed a motion to hold his federal proceeding in abeyance in order to file another postconviction motion at the state level. In February of 1995 the federal district court granted Correll's request and ordered that his file be administratively closed. In March of 1995 Correll filed a rule 3.850 motion to vacate his sentence in the trial court, asserting newly discovered evidence and violations of chapter 119, Florida Statutes (1993). The motion alleged that Correll had recently discovered that Judith Bunker, the State's expert witness on blood splatters, had misrepresented her educational background and experience. The motion also alleged that various agencies had failed to comply with Correll's request for public documents related to whether or not these agencies had actually consulted with Bunker in her capacity as an expert in blood stain analysis.

In March of 1996 a hearing on Correll's postconviction motion was conducted before Judge Stroker who had been the judge who presided at Correll's trial. The trial judge summarily denied relief. Correll then filed a motion to disqualify the trial judge on the grounds that the judge had relied on personal knowledge in denying Correll's claims and that the judge was biased against Correll's counsel. This motion was also denied. Correll now appeals the denial of his rule 3.850 motion and the motion to disqualify.

In order for evidence to qualify as newly discovered, "the asserted facts 'must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or his counsel could not have known them by the use of due diligence.' " Jones v. State, 591 So.2d 911, 916 (Fla.1991) (quoting Hallman v. State, 371 So.2d 482, 485 (Fla.1979)). To obtain relief based on a newly discovered evidence claim, the defendant must establish that "the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial." Jones, 591 So.2d at 915.

In its order denying Correll's motion for postconviction relief the trial court stated:

The gravamen of the allegations contained in CORRELL'S motion is that Ms. Bunker has, subsequent to her testimony in the instant case, exaggerated her credentials, most notably holding herself out to be a high school graduate when she apparently does not, in fact possess a high school diploma. Significantly, the thrust of CORRELL'S complaint appears to be the witness's qualification as an expert, as opposed to the substance, i.e. scientific validity or accuracy, of her testimony.

All of the "newly discovered evidence" contained in the Defendant's motion is purely collateral to Ms. Bunker's qualification as an expert witness by this Court. Ms. Bunker's qualification as an expert at trial was based almost entirely on her experience in the relatively new field of blood spatter analysis, and not on her education. Clearly, whatever education the witness did or did not possess was discoverable at the time, had the appropriate questions been asked. Because no reasonable probability exists that "newly discovered evidence"

Page 524

presented in the Defendant's post-conviction motion would have affected the outcome of the trial, had it been known at the time, no evidentiary hearing was warranted. See Jones v. State, 591 So.2d 911 (Fla.1991).

We agree with the trial court that the evidence proffered by Correll does not qualify as newly discovered evidence because it was discoverable at the time of trial. However, even if...