Correll v. State, 88474

• Decision Date: 10 April 1997
• Docket Number: No. 88474,88474
• Citation: 698 So.2d 522
• Court: Florida Supreme Court
• 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.

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" 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 the evidence was not discoverable at the time of trial, the discrepancies between the level of education, training, and experience Bunker testified to at trial and the asserted level of education, training, and experience she actually had were not so great as to make any difference in the outcome of the case. Moreover, Bunker's vita, which among other things, falsely set forth that Bunker had a high school diploma, was never seen by the jury. Thus, any misrepresentations contained in the vita are irrelevant to Correll's claim.

The only alleged misrepresentation of any import was Bunker's assertion that she had worked as an assistant and technical specialist for the medical examiner's office from 1970 through 1982, when in reality she was a secretary at the medical examiner's office from 1970 to 1974, an assistant to the medical examiner from 1974 to 1981, and a technical specialist for the last five months of her employment with the medical examiner's office. In view of the fact that it is undisputed that she worked on thousands of cases while in the employ of the medical examiner, even this discrepancy becomes less serious.

However, assuming for the sake of argument that Bunker's testimony did contain serious discrepancies that could not have been discovered during trial, we are convinced that these discrepancies did not have any impact on the outcome of the case in light of the overwhelming evidence presented at trial in support of Correll's guilt. ¹ Moreover, Bunker's testimony was not crucial to the State's case and merely corroborated the medical examiner's testimony. Correll's argument that Bunker's testimony greatly affected the outcome of the case because it was the only evidence presented in support of the State's "single-killer" theory is meritless because there was overwhelming evidence of Correll's guilt regardless of whether other perpetrators were involved in the murders. ²

All of Correll's public records requests went to the issue of whether various agencies had consulted with Bunker as an expert witness. The requests were therefore directly related to his newly discovered evidence claim. Because the trial court determined that Correll's newly discovered evidence claim was without merit, the trial court's summary denial of Correll's related public records claim was proper.

Regarding Correll's motion to disqualify Judge Stroker, we affirm the trial court's denial of the motion because it did not state a legally sufficient basis for disqualification. A motion to disqualify will be dismissed as legally insufficient if it fails to establish a well-grounded fear on the part of the movant that he will not receive a fair hearing. Quince v. State, 592 So.2d 669, 670 (Fla.1992). To determine if a motion to disqualify is legally sufficient, this Court looks to see "whether the facts alleged would place a reasonably prudent person in the fear of not receiving a fair and...