Johnson v. State

• Citation: 904 So.2d 400
• Decision Date: 28 April 2005
• Docket Number: No. SC03-1042.,SC03-1042.
• Parties: Terrell M. JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

904 So.2d 400

Terrell M. JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. SC03-1042.

Supreme Court of Florida.

April 28, 2005.

Rehearing Denied June 10, 2005.

Neal A. Depree, Captial Collateral Regional Counsel and William M. Hennis, III, Litigation Director, CCRC-South, Fort Lauderdale, FL, for Appellant.

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

PER CURIAM.

Terrell M. Johnson, a prisoner under sentence of death, appeals an order of the circuit court denying his second successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. For the reasons that follow, we affirm. We hold that (I) the trial court did not abuse its discretion in summarily denying the defendant's public records claim or in concluding that all but one of the public records the State did not disclose to the defendant are either exempt from disclosure or not relevant; (II) the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), does not apply retroactively in Florida; and (III) execution by lethal injection is constitutional.

PROCEDURAL BACKGROUND

In December 1979, Johnson shot and killed two people — a bartender and a customer — at an Orange County tavern. He was convicted of first-degree murder of the bartender and second-degree murder of the customer. On the first-degree conviction, the jury recommended, and the trial court imposed, a sentence of death. Johnson appealed the conviction and sentence to this Court, but the trial transcript was so incomprehensible that we relinquished jurisdiction for reconstruction of the record and an evidentiary hearing to determine its accuracy. After receiving a supplemental transcript, we affirmed the conviction and sentence. See Johnson v. State, 442 So.2d 193 (Fla.1983),

cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984).

Johnson filed his first motion for postconviction relief in 1985. The circuit court held an evidentiary hearing and eventually denied the motion. We affirmed. Johnson v. State, 593 So.2d 206 (Fla.), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992). In 1995, Johnson filed a petition for a writ of habeas corpus in this Court. We found every issue either procedurally barred or lacking merit. See Johnson v. Singletary, 695 So.2d 263 (Fla. 1996)

. In 1997, Johnson filed a second motion for postconviction relief. The circuit court denied all relief without an evidentiary hearing. Again, we affirmed. Johnson v. State, 804 So.2d 1218 (Fla. 2001).

In 2002, Johnson filed a third postconviction motion. The motion, as consolidated and amended, raised four claims.¹ After inspecting sealed documents in response to Claim I, the circuit court summarily denied relief. Johnson then moved for rehearing, which the court granted in part. The court again inspected the sealed documents and, "in an abundance of caution," released one document that referred to "a fugitive with a criminal history who uses as an alias the name of one of the jurors in [Johnson's] trial." The court maintained its denial of relief without an evidentiary hearing. Johnson now appeals the summary denial of his third postconviction motion to this Court. We address each claim in turn.

I. PUBLIC RECORDS CLAIM

Johnson first alleges that his due process and equal protection rights were violated because the Florida Department of Law Enforcement (FDLE) and the Ninth Circuit State Attorney's Office withheld public records relevant to his case. He presented this claim as one of "newly discovered evidence." The documents at issue were filed with the state records repository in March and April 2001. Some were sealed; others were not. The unsealed documents mention six people who have the same names as jurors in Johnson's case: Linda Stewart, William Young, Peggy Smith, Gregory Simmons, Fred Cooper, and Betty Phillips. These names appear in various criminal investigation and intelligence documents. As to the sealed records, FDLE asserted several statutory exemptions from disclosure of public records concerning criminal investigations and confidential informants.

Johnson obtained copies of the unsealed records shortly after becoming aware of them. At the time, Johnson's appeal of his first successive postconviction motion was pending in this Court, and oral argument already had been held. Johnson filed a motion to relinquish jurisdiction for consideration of the new documents. We denied the motion without prejudice to file a motion in the circuit court. Johnson subsequently filed the motion at issue in this case, requesting an evidentiary hearing on his public records claim. He also asked the circuit court to inspect the documents in camera pursuant to Florida Rule of Criminal Procedure 3.852(f).

After inspecting the sealed documents in camera, the circuit court summarily denied relief. The court concluded that "Defendant's claims are merely conclusory" and that "all documents not yet disclosed to Defendant are either exempt from disclosure or not relevant." Johnson moved for a rehearing, which the court granted in part. After again inspecting the sealed documents in camera, the court stated in a March 2003 order:

The Court finds that a valid exemption exists for each of the allegedly exempt documents. Moreover, for all but one document, the contents are clearly irrelevant to any possible Rule 3.851 proceeding. The sole exception is ... an FDLE investigative report. The report refers to a fugitive with a criminal history who uses as an alias the name of one of the jurors in Defendants trial. While the Court notes that any connection between the fugitive and the actual juror is purely speculative, that investigative report is the only exempt document which the Court cannot definitively find to be irrelevant. Therefore, in an abundance of caution, the Court shall release copies of that single document to the parties.

The court maintained its denial of relief and refused to grant an evidentiary hearing.

Johnson now argues the court should have granted an evidentiary hearing. A defendant is entitled to an evidentiary hearing on his postconviction motion unless (1) the motion, files and records in the case conclusively show that the defendant is not entitled to any relief, or (2) the motion or a particular claim is legally insufficient. See Maharaj v. State, 684 So.2d 726, 728 (Fla.1996)

; Holland v. State, 503 So.2d 1250, 1251 (Fla.1987). In determining whether an evidentiary hearing is warranted, we must accept the defendant's factual allegations to the extent they are not refuted by the record. See Peede v. State, 748 So.2d 253, 257 (Fla. 1999). However, we have "rejected the argument that an evidentiary hearing is required to resolve every postconviction motion that alleges a public records violation. The defendant must support his motion... with specific factual allegations." Thompson v. State, 759 So.2d 650, 659 (Fla.2000) (citation omitted) (citing Downs v. State, 740 So.2d 506, 510-11 (Fla.1999)). Conclusory allegations do not justify an evidentiary hearing. See Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).

We agree with the trial court that Johnson's public records claim is legally insufficient as a "newly discovered evidence" claim. We repeatedly have held that "[i]n order to obtain relief on a claim of newly discovered evidence, a claimant must show, first, that the newly discovered evidence was unknown to the defendant or defendant's counsel at the time of trial and could not have been discovered through due diligence and, second, that the evidence is of such a character that it would probably produce an acquittal on retrial." Mills v. State, 786 So.2d 547, 549 (Fla. 2001) (citing Jones v. State, 709 So.2d 512 (Fla.1998)). Johnson has not explained how the unsealed records FDLE and the State Attorney's Office released "would probably produce an acquittal on retrial." In fact, we are confident they would not. The unsealed records date back only to 1988, whereas voir dire in Johnson's case was conducted in 1980. Thus, even if the records concern criminal activity by the jurors in Johnson's case — which at this point is sheer speculation — they still would be irrelevant.

Apparently recognizing that the unsealed documents do not contain any information likely to lead to a retrial, much less an acquittal, Johnson alleges that FDLE may be withholding additional relevant documents. Despite the State's representation to the circuit court that "we have a one-time occurrence here," Johnson claims that the tardy production of public records in early 2001 "calls into question the record keeping practices of the FDLE in regards to Mr. Johnson's case" and may indicate that more unproduced documents exist. Far from being a "specific factual allegation[]" as required by Thompson, 759 So.2d at 659, this allegation amounts to a "fishing expedition for records." Moore v. State, 820 So.2d 199, 204 (Fla.2002) (rejecting a public records claim because "importantly, [the defendant] has made no showing that there is any additional information that has not been disclosed").

We consistently have upheld the summary denial of public records claims based on a defendant's mere speculation about the existence of unproduced records. For example, in Downs v. State, 740 So.2d at 510, the defendant alleged that a law enforcement agency had withheld notes from witness interviews, whereas the State and the sheriff's office claimed that all relevant records had been disclosed. Id. Because the defendant "did not proffer or assert the existence of any evidence that such notes existed and were improperly being withheld," we affirmed the denial of relief. Id. at 511; cf. Mendyk v. State, 707 So.2d 320, 322 (Fla.1997)

("In the absence of a showing...