Johnston v. State

• Citation: 27 So.3d 11
• Decision Date: 21 January 2010
• Docket Number: No. SC09-839.,SC09-839.
• Parties: David Eugene JOHNSTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

27 So.3d 11 David Eugene JOHNSTON, Appellant,
v.
STATE of Florida, Appellee. No. SC09-839. Supreme Court of Florida. January 21, 2010.

[27 So.3d 14]

D. Todd Doss, Lake City, FL, for Appellant.

Bill McCollum, Attorney General, Tallahassee, FL, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Appellee.

PER CURIAM.

David Eugene Johnston, a prisoner under sentence of death, appeals the postconviction court's order denying his fourth and fifth successive motions for postconviction relief, filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the postconviction court's orders denying Johnston's successive motions for postconviction relief.

FACTS AND PROCEDURAL HISTORY

On May 18, 1984, Johnston was convicted of the first-degree murder of Mary Hammond, which occurred on November 5, 1983, in Orange County, Florida. After a jury trial, the trial court sentenced Johnston to death. His conviction and sentence were affirmed by this Court on direct appeal. Johnston v. State, 497 So.2d 863 (Fla.1986). The facts and circumstances of the murder are summarized as follows:

At approximately 3:30 a.m. on November 5, 1983, David Eugene Johnston called the Orlando Police Department, identified himself as Martin White, and told the police "somebody killed my grandma" at 406 E. Ridgewood Avenue. Upon their arrival, the officers found the dead body of 84-year-old Mary Hammond. The victim's body revealed numerous stab wounds as well as evidence of manual strangulation. The police arrested Johnston after noticing that his clothes were blood-stained, his face was scratched and his conversations with the various officers at the scene of the crime revealed several discrepancies as to his account of the evening's events.

The record reveals that prior to the murder Johnston had been working at a demolition site near the victim's home and had had contact with the victim during that time. In fact, Johnston was seen washing dishes in the victim's apartment five nights before the murder.

Johnston was seen earlier on the evening of the murder without any scratches on his face and the clothing he was wearing tested positive for blood. In addition, the watch that Johnston was seen wearing as late as 1:45 a.m. on the morning of the murder was found covered with blood on the bathroom countertop in the victim's home. Further, a butterfly pendant that Johnston was seen wearing as late as 2:00 a.m. that morning was found entangled in the victim's hair. The record also reveals that a reddish-brown stained butcher-type knife was found between the mattress and the boxspring of the victim's bed, a footprint matching Johnston's was found outside the kitchen window of the victim's house, and that silver tableware, flatware, a silver candlestick, a wine bottle and a brass teapot belonging to the victim were found in a pillowcase located in the front-end loader parked at the demolition site.

Id. at 865. Johnston gave the police a number of different statements about his

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interactions with victim. In his statements to police, Johnston said he went by the victim's home in the early morning hours of November 5, 1983, and saw lights on in the apartment. He said he went into the unlocked apartment to check on Mary Hammond, but the evidence also showed that a window to the apartment was broken and a key case belonging to the victim was found outside the apartment. Johnston also told police conflicting stories about seeing a man running from the apartment. Although Johnston first told police he found the victim dead, he later said he found her alive but injured on her bed, where he spoke to her and cradled her head. He said that after he got blood on himself, he washed it off in the victim's bathroom. The jury convicted Johnston of first-degree murder and, after a penalty phase proceeding, recommended a death sentence by an eight-to-four vote.

Governor Martinez signed the first warrant for Johnston's execution on October 28, 1988, but the execution was stayed after Johnston filed his initial motion for postconviction relief and petition for habeas corpus. This Court affirmed denial of Johnston's postconviction claims relating to his competency to stand trial, claims of ineffective assistance of trial counsel, and several constitutional challenges to his sentence of death, and we denied habeas relief. Johnston v. Dugger, 583 So.2d 657 (Fla.1991). Subsequently, Johnston filed a petition for writ of habeas corpus in the federal district court raising claims of ineffective assistance of counsel, competency, and constitutional claims relating to the penalty phase. That petition was denied and the denial was affirmed by the Eleventh Circuit Court of Appeals. Johnston v. Singletary, 162 F.3d 630, 632 (11th Cir. 1998).

This Court subsequently affirmed denial of Johnston's second motion for postconviction relief and denied his second petition for habeas corpus, in which he raised claims relating to competency, ineffective assistance of counsel in the penalty phase, trial court errors in the penalty phase, and issues relating to the sentencing factors. Johnston v. State, 708 So.2d 590 (Fla. 1998). After this Court issued its decision in Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.1999), which clarified the standard to be used in reviewing ineffective assistance of counsel claims, Johnston filed another petition for writ of habeas corpus in this Court, arguing that Stephens should apply retroactively to his case. Relief was denied in Johnston v. Moore, 789 So.2d 262, 263 (Fla.2001).

In June 2002, Johnston filed a third motion to vacate judgment of conviction and sentence, asserting that he is mentally retarded and that his execution would violate his constitutional rights under the holding of the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that it is unconstitutional to execute a person who is mentally retarded; and in August 2002, Johnston added a challenge to the constitutionality of his death sentence in response to 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), which held that a defendant has a Sixth Amendment right to have a jury find all facts upon which the Legislature conditions an increase in the maximum punishment. See id. at 589, 122 S.Ct. 2428. We affirmed denial of the Atkins and Ring claims in Johnston v. State, 960 So.2d 757, 758 (Fla.2006).

On April 20, 2009, Governor Charlie Crist signed a second death warrant authorizing Johnston's execution. Johnston was appointed new counsel, who then filed a fourth successive motion for postconviction relief in the trial court raising five

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claims and two motions.¹ In addition to his successive postconviction claims, he filed a motion for DNA testing under Florida Rule of Criminal Procedure 3.853 seeking testing of certain items of clothing and the fingernail clippings taken from the victim.² Johnston also moved for production of other evidentiary items on which he sought to have additional forensic testing performed. On May 8, 2009, the postconviction court denied the motion for DNA testing and the motion for production of evidence for forensic testing. The court also denied relief on the remainder of the claims. Johnston then filed this appeal. After oral argument was held, we granted a stay of execution on May 21, 2009, and relinquished jurisdiction to the trial court for ninety days for DNA testing of the victim's fingernail clippings and certain items of Johnston's clothing said to bear indications of blood.

The postconviction court directed the Florida Department of Law Enforcement (FDLE) to conduct DNA testing on the items of clothing and the victim's fingernail clippings. After that testing, the FDLE report was submitted stating in part that no blood could be found on the items of clothing and accordingly, no DNA testing was performed on the clothing. Based on the FDLE lab report, Johnston filed a fifth successive motion for postconviction relief, alleging that the FDLE lab report was newly discovered evidence that proved there was no blood on his clothes, which if introduced at trial would probably have resulted in an acquittal. The victim's fingernail clippings were tested for DNA by FDLE but the lab could not obtain a complete DNA profile. FDLE could only say that the material under the victim's fingernails came from a male. FDLE also reported that it did not have the capability of performing the Y-STR DNA testing necessary to develop a complete profile of that male DNA and recommended that the Y-STR DNA testing be conducted elsewhere.

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The Y-STR DNA testing was subsequently completed by LabCorp, a private molecular biology and pathology laboratory in North Carolina, with observers from the Florida Department of Law Enforcement and from DNA Diagnostics of Fairfield, Ohio, a laboratory that Johnston had specifically requested. On August 17, 2009, the postconviction court held a hearing at which the court received the DNA report. Dr. Julie Heinig of DNA Diagnostics of Fairfield, Ohio, testified that she had observed the testing done by LabCorp and had conferred with Megan Clement of LabCorp concerning the testing. Dr. Heinig testified that appropriate procedures were followed and that, according to the DNA testing report, the Y-STR DNA testing indicated that David Johnston's DNA profile was consistent with the profile obtained from Mary Hammond's fingernails, and therefore neither he nor his paternally related relatives could be excluded as a contributor to that DNA sample. The report stated as follows:

Based on the results listed above, the Y chromosome DNA profile obtained from the DNA extract from K7a [fingernail clippings] (Item 1) and the partial Y chromosome DNA profile obtained from the DNA...