Downs v. State

Decision Date20 May 1999
Docket NumberNo. 90,510.,90,510.
PartiesErnest Charles DOWNS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Gregory C. Smith, Capital Collateral Representative, Northern Region, Andrew Thomas, Chief Assistant CCC—NR and John A. Tomasino, Assistant CCC—NR, Office of the Capital Collateral Representative, Tallahassee, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Mark S. Dunn, Assistant Attorney General, Tallahassee, Florida, for Appellee.


We have for review Ernest Charles Downs' appeal from the denial of his second motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the trial court's summary denial of Downs' 3.850 motion for postconviction relief.


The facts in this case are set forth in greater detail in Downs v. State, 572 So.2d 895 (Fla.1990). In 1977, Downs was convicted of first-degree murder and conspiracy to commit first-degree murder and sentenced to death for the killing of Forrest Jerry Harris, Jr. The record indicates a man by the name of Ron Garelick formed a conspiracy to murder Harris for the purpose of collecting insurance proceeds. One of the conspirators, John Barfield, offered Downs $5000 to kill Harris. Downs agreed, and in order to accomplish this task, elicited the help of Larry Johnson. According to Johnson, Downs drove Harris to a remote location where Johnson was waiting and then shot Harris multiple times with a .25 caliber automatic pistol. Following conviction, the jury recommended a sentence of death, which the trial court followed after finding two aggravating factors1 and no mitigating circumstances. This Court affirmed Downs' convictions and sentence. See Downs v. State, 386 So.2d 788 (Fla.1980),

cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980).

In 1982, Downs filed his first postconviction motion pursuant to rule 3.850 of the Florida Rules of Criminal Procedure, which included claims for ineffective assistance of counsel and withholding of material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After an evidentiary hearing, the trial court denied the motion. This Court affirmed the order of denial. See Downs v. State, 453 So.2d 1102 (Fla.1984)

. On August 18, 1987, the Governor signed a death warrant and Downs petitioned this Court for writ of habeas corpus and stay of execution, alleging a change in the law regarding mitigating circumstances. This Court granted the writ, stayed the warrant, and vacated Downs' sentence of death with instructions for the trial court to hold a new sentencing proceeding in accordance with the Supreme Court's decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (holding that trial court must consider both statutory and nonstatutory mitigating factors). See Downs v. Dugger, 514 So.2d 1069 (Fla.1987). Upon resentencing, the jury again recommended death by a vote of eight to four. The trial court followed the jury's recommendation, finding three aggravating factors2 and ruling that the mitigating factors did not offset or overcome the evidence in aggravation. This Court affirmed Downs' sentence. See Downs v. State, 572 So.2d 895 (Fla.1990),

cert. denied, 502 U.S. 829, 112 S.Ct. 101, 116 L.Ed.2d 72 (1991).

On November 30, 1992, Downs filed a second 3.850 motion, raising sixteen issues, including claims for noncompliance with a public records request, withholding of material, exculpatory evidence, and ineffective assistance of counsel. After several hearings on Downs' public records requests and a Huff3 hearing on Downs' remaining claims, the trial court summarily denied the motion, ruling that Downs' claims were either conclusively refuted by the record or procedurally barred. No evidentiary hearing was held. This appeal followed.


Downs raises fourteen issues on appeal.4 Of the claims presented for our review, several may be disposed of summarily.5 Downs' remaining claims, however, warrant some discussion.

Public Records Request

Downs argues that certain state agencies failed to comply with his public records requests and that the trial court erred in refusing to conduct an evidentiary hearing on this matter. Downs claims the police file disclosed by the Jacksonville Sheriff's Office (JSO) does not contain all of the records in this case. He argues that specifically missing from this file are handwritten police notes of witnesses interviewed by the JSO. Downs contends the number of hours spent investigating the murder and the number of witnesses interviewed in this case indicates the JSO's file should have been much larger than the file actually disclosed. Downs further relies on testimony by Stephen Hicks, the records custodian for the JSO, who admitted at a hearing on the matter that he had no personal knowledge as to whether each department within the sheriffs office complied with the request. Accordingly, Downs argues he was entitled to an evidentiary hearing pursuant to our holding in Walton v. Dugger, 634 So.2d 1059 (Fla. 1993). We disagree.

Under rule 3.850, the trial court must hold an evidentiary hearing unless the motion and record conclusively show that the defendant is entitled to no relief. See Fla. R.Crim. Pro. 3.850; Lopez v. Singletary, 634 So.2d 1054, 1056 (Fla.1993); Provenzano, 561 So.2d at 543; Roberts v. State, 568 So.2d 1255, 1256 (Fla.1990). In Walton, the appellant was denied access to public records because the trial court held that such claims were not cognizable in 3.850 postconviction proceedings. On appeal, we held that the noncompliance with a public records request may properly be raised in a 3.850 motion. 634 So.2d at 1062. We then explained the procedure courts must follow in such proceedings:

When, as in the instant case, certain statutory exemptions are claimed by the party against whom the public records request has been filed or when doubt exists as to whether a particular document must be disclosed, the proper procedure is to furnish the document to the trial judge for an in camera inspection. See [State v.] Kokal[, 562 So.2d 324 (Fla. 1990)

]. At that time, the trial judge can properly determine if the document is, in fact, subject to a public records disclosure. Under the circumstances of this case, the trial judge should have granted an evidentiary hearing to consider whether the exemptions applied or whether the requested documents were public records subject to disclosure.

Id. at 1061-62 (emphasis added).

Contrary to Downs' assertion, we do not read our opinion in Walton to require an evidentiary hearing in every case. Rather, we remanded for an evidentiary hearing in Walton because the trial court summarily denied Walton's motion on the mistaken belief that noncompliance with a public records request may not be raised in a rule 3.850 motion. Id. No such error occurred in the instant case.

Instead, we believe this case is controlled by our holding in Mendyk v. State, 707 So.2d 320 (Fla.1997). There, the defendant requested from the Hernando County Sheriffs Office an unedited version of a crime scene videotape and from the Pasco County Sheriffs Office handwritten notes or tape recordings of an interview with the defendant about an unrelated murder. We held that where it is undisputed the unedited videotape had once existed but was now missing, the trial court erred in denying Mendyk an opportunity to explore, by deposition or evidentiary hearing, the existence or location of the unedited videotape. Id. at 322. However, we held the error was harmless under the circumstances because an edited version was admitted at trial and there was no possibility the unedited video would have contained any information that could form the basis of a claim under rule 3.850. Id.

We also found no error in the denial of Mendyk's request for handwritten notes or for recordings of his interview with the Pasco County Sheriffs Office. Id. The interviewing officer filed an uncontested affidavit stating that no notes or recordings existed. We held that "[i]n the absence of a showing that such notes or recording may have been made, the trial judge did not abuse his discretion in denying Mendyk's motion in this regard." Id. We reached a similar result in Mills v. State, 684 So.2d 801 (Fla.1996), wherein we found no error in the trial court's failure to order production of documents requested from the Leon County Sheriffs Department where the sheriffs department had denied having possession of the requested documents and the defendant had failed to demonstrate their existence. Id. at 805.

Here, both the state and the sheriffs office stated during a hearing on Downs' public records request that all documents had been disclosed and expressly denied the existence of any documents not otherwise included in the disclosed files. Further, Hicks testified that all documents given to him from the departments within the JSO were then disclosed to collateral counsel. Based on this testimony, the trial court denied Downs' motion to compel because the evidence was "uncontroverted that all records of JSO have been provided [to the] defense" and that "mere suspicion that there is more does not warrant an evidentiary hearing" under rule 3.850. Later, in its summary denial of Downs' 3.850 motion, the trial court again "ensured that the documents to which the defendant was entitled were provided to him."

Other than a recitation of the names of the investigating officers and the witnesses apparently interviewed during the criminal investigation,6 Downs did not proffer or assert the existence of any evidence that such notes existed and were improperly being withheld. Rather, Downs' entire basis for concluding that investigative notes existed apparently was the relatively thin size of the sheriffs office file and...

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