Hildwin v. State

• Decision Date: 14 December 2006
• Docket Number: SC04-1264.
• Citation: 951 So.2d 784
• Parties: Paul HILDWIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

951 So.2d 784

Paul HILDWIN, Appellant, v. STATE of Florida, Appellee.

SC04-1264.

Supreme Court of Florida.

December 14, 2006.

Rehearing Denied March 7, 2007.

John W. Jennings, Capital Collateral Regional Counsel—Middle Region, David

Dixon Hendry and Mark S. Gruber, Assistant CCR Counsel, Tampa, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee.

Nina Morrison and Barry C. Scheck, New York, New York, on behalf of The Innocence Project, Inc.; and Milton Hirsch of Hirsch and Markus, LLP, Miami, FL, on behalf of The Florida Association of Criminal Defense Lawyers, Miami Chapter, for Amicus Curiae.

PER CURIAM.

Paul Hildwin appeals the denial of a motion to vacate his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Hildwin challenges the trial court's rulings on four issues: (1) denial of a new trial and new penalty phase based on newly discovered DNA evidence that excludes him as the source of semen on underpants and saliva on a wash cloth found at the top of a laundry bag in the victim's car; (2) exclusion of the results of "mock jury" presentations conducted using the new evidence; (3) denial of a new trial on grounds that the evidence suggesting he raped the victim constituted a fatal variance from or constructive amendment of the indictment; and (4) cumulative error. For the reasons that follow, we affirm the denial of his motion on each of these grounds.

PROCEDURAL HISTORY

This is Hildwin's first postconviction appeal since this Court affirmed the death sentence imposed upon resentencing. Hildwin's original judgment and sentence of death were affirmed on direct appeal. See Hildwin v. State, 531 So.2d 124 (Fla. 1988), aff'd, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989). In Hildwin's previous postconviction appeal, we affirmed the denial of Hildwin's postconviction motion in respect to his conviction but granted a new penalty phase. See Hildwin v. Dugger, 654 So.2d 107 (Fla.1995). In the new penalty phase, Hildwin again received a sentence of death, and this Court affirmed the sentence. See Hildwin v. State, 727 So.2d 193 (Fla.1998).¹

FACTS OF THE CRIME

The following facts of the crime are set out in our opinion in Hildwin, 531 So.2d at 125-26:

Appellant was arrested after cashing a check purportedly written to him by one Vronzettie Cox, a forty-two-year-old woman whose body had been found in the trunk of a car, which was hidden in dense woods in Hernando County. Death was due to strangulation; she also had been raped. Evidence indicated she had been killed in a different locale from where her body was found. Her purse, from which some contents had been removed, was found in dense woods, directly on line between her car and appellant's house. A pair of semenencrusted women's underpants was found on a laundry bag in her car, as was a sweat-stained wash rag. Analysis showed the semen and sweat came from nonsecretor (i.e., one who does not secrete blood into other bodily fluids). Appellant, a white male, was found to be a nonsecretor; there was testimony that white male nonsecretors make up eleven percent of the population.

The victim had been missing for four days when her body was found. The man she lived with, one Haverty, said she had left their home to wash clothes at a coin laundry. To do so, she had to pass a convenience store. Appellant's presence in the area of the store on the date of her disappearance had come about this way: He and two women had gone to a drive-in movie, where they had spent all their money. Returning home early in the morning, their car ran out of gas. A search of the roadside yielded pop bottles, which they redeemed for cash and bought some gasoline. However, they still could not start the car. After spending the night in the car, appellant set off on foot at 9 a.m. toward the convenience store near the coin laundry. He had no money when he left, but when he returned about an hour and a half later, he had money and a radio. Later that day, he cashed a check (which he later admitted forging) written to him on Ms. Cox's account. The teller who cashed the check remembered appellant cashing it and recalled that he was driving a car similar to the victim's.

The check led police to appellant. After arresting him the police searched his house, where they found the radio and a ring, both of which had belonged to the victim. Appellant gave several explanations for this evidence and several accounts of the killing, but at trial testified that he had been with Haverty and the victim while they were having an argument, and that when Haverty began beating and choking her, he left. He said he stole the checkbook, the ring, and the radio. Haverty had an alibi for the time of the murder and was found to be a secretor.

Appellant made two pretrial statements that are pertinent here. One was a confession made to a cellmate. The other was a statement made to a police officer to the effect that Ms. Cox's killer had a tattoo on his back. Haverty had no such tattoo, but appellant did.

PRESENT RULE 3.851 MOTION

In 2002, pursuant to Florida Rule of Criminal Procedure 3.853, Hildwin's post-conviction counsel obtained an order permitting DNA testing of the underpants and wash cloth identified at trial as containing bodily fluids of a nonsecretor such as Hildwin. In January 2003, Orchid Cellmark, a laboratory certified by the American Society of Crime Laboratory Directors, issued a report excluding Hildwin as the source of the DNA obtained from the underpants and wash cloth. Hildwin then moved for postconviction relief, asserting inter alia that the newly discovered DNA results demonstrated his actual innocence or would result in his acquittal or a lesser sentence. In a written order, the trial court denied the motion.

Issues 1 and 3: Newly Discovered DNA Evidence and Fatal Variance Between Indictment and Proof

In his first argument on appeal, Hildwin maintains that newly discovered DNA evidence shows that Hildwin is actually innocent of the crime or, in the alternative, that in light of the new DNA evidence, Hildwin would probably be acquitted on retrial or would not receive a sentence of death. In his third argument, Hildwin maintains that there were fatal variances between the indictment and proof because he was only indicted on a charge of first-degree murder but eventually was tried for a charge of sexual battery not alleged in the indictment. Hildwin's claims center upon the DNA evidence showing that it was not Hildwin's semen on the underwear or secretions on a rag that were found in the victim's car following the murder.

In denying Hildwin's postconviction motion, the circuit court expressly pointed out: "This matter was never prosecuted as a rape case." State v. Hildwin, No. 85-499-CF at 3 (Fla. 5th Cir. Ct. order filed May 3, 2004) (Postconviction Order). The circuit court's order then states in respect to Hildwin's argument 1:

(1) There is no basis to Defendant's claim that the newly discovered DNA evidence shows that he is innocent of the crime, or that he would probably be acquitted on retrial, pursuant to Jones [v. State, 709 So.2d 512 (Fla.1998)]. In fact, in this Court's Order on Defendant's Motion for Postconviction DNA Testing, entered on June 10, 2002, wherein DNA testing of four items of evidence was authorized, this Court specifically omitted language that indicated that there was a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if DNA evidence had been admitted at trial. The DNA testing indicates that the semen and saliva on the panties and washcloth did not come from the Defendant. Pursuant to the standards set forth in Jones, the Court must reweigh the DNA evidence and analyze it along with the evidence presented at trial. This Court has done so, and has determined that an acquittal would NOT be probable on retrial, even taking into consideration the newly discovered DNA evidence, which does NOT show that the Defendant is innocent of the crime charged; and

(2) Defendant goes into extensive discussion regarding cases where DNA testing was denied, but that is inapplicable here. This Court granted Defendant's request for DNA testing, and although the results indicate that the semen and saliva on the items found on the laundry bag in the victim's car were not Defendant's, that does not translate into a reasonable probability that Defendant would have been acquitted had that DNA evidence been available at trial; and

(3) Defendant alleges the only remaining evidence of guilt is a statement from a "lying jailhouse snitch" who testified for the State; however, he neglects to mention considerable testimony and numerous factors presented at trial which resulted in his conviction, as contained in the trial transcript, including:

• The testimony of a cellmate who alleged that Defendant admitted that he had killed the victim and that he was going to "burn" for the murder.

• The victim's purse, with some items removed, which was found in the woods where her car was located, as well as her shoes and a piece of moulding [sic] from her car, all located in a direct line between her car and the Defendant's house.

• Testimony that Defendant had no money when he left his disabled car roadside and walked toward a convenience store in the area where the victim was traveling, returning to his car approximately 1 1/2 hours later with money which he subsequently used to purchase gas.

• Testimony that Defendant cashed a check drawn on the victim's bank account, which he later admitted he stole from her purse and forged and cashed it.

• Testimony indicating that the teller who cashed the forged check identified the Defendant as the person who cashed it, and that he was driving a car at the time that was similar to the description of the...