Jones v. State, No. 78907

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; SHAW; McDONALD; McDONALD
• Citation: 591 So.2d 911
• Parties: 16 Fla. L. Weekly S745 Leo Alexander JONES, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 14 November 1991
• Docket Number: No. 78907

Page 911

591 So.2d 911 16 Fla. L. Weekly S745 Leo Alexander JONES, Appellant,
v.
STATE of Florida, Appellee. No. 78907. Supreme Court of Florida. Nov. 14, 1991.
Rehearing Denied Jan. 31, 1992.

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Larry Helm Spalding, Capital Collateral Representative and Thomas H. Dunn, Asst. CCR, Office of Capital Collateral Representative, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Leo Alexander Jones, a state prisoner for whom a second death warrant has been signed, appeals the denial of a motion for postconviction relief and requests a stay of his execution. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.

Jones was convicted of the 1981 murder of Officer Szafranski of the Jacksonville Police Department. The trial judge followed the jury's recommendation and sentenced Jones to death. This Court affirmed the conviction and sentence. Jones v. State, 440 So.2d 570 (Fla.1983). Jones later filed a petition for habeas corpus which this Court denied. Jones v. Wainwright, 473 So.2d 1244 (Fla.1985). Jones then filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court denied this motion, and this Court affirmed. Jones v. State, 528 So.2d 1171 (Fla.1988). Following the signing of his first death warrant in September of 1988, this Court denied Jones' petition for habeas corpus. Jones v. Dugger, 533 So.2d 290 (Fla.1988). A federal district court granted a stay of execution but later held that Jones was not entitled to relief. The Eleventh Circuit Court of Appeals affirmed. Jones v. Dugger, 928 F.2d 1020 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 216, 116 L.Ed.2d 174 (1991).

The essential facts surrounding the murder were set forth in our original opinion:

The evidence at trial showed that on May 23, 1981, shortly after 1:00 A.M., Officer Thomas J. Szafranski was shot in his squad car at the intersection of 6th Street and Davis Street, Jacksonville, Florida. Officer Wilmouth was first on the scene. While Wilmouth waited for medical assistance to arrive a group of people came out of a nearby bar and approached him. One unidentified member of the group indicated that the shots had come from the two-story apartment building fronting the 6th and Davis Street intersection. Thereafter Wilmouth proceeded to investigate this building.

Officer Mundy had been informed of the incident by radio and quickly joined Wilmouth in the investigation. According to Mundy, the reputation of the apartment building in question was well travelled in law enforcement circles. Mundy entered the building fully aware that the vacant lower left apartment was a known "stash house" harboring drug users, vagabonds and other street criminals.

The two officers' search of the building's lower level produced nothing. However, Wilmouth informed Mundy that he had heard "shuffling" in the upper left apartment. Thereafter Mundy approached this apartment, knocked on the door, and proceeded to identify himself as a police officer. His repeated knocking, however, went unanswered. When Mundy continued to hear voices coming from within he entered the apartment; there he confronted appellant and appellant's cousin, Bobby Hammond, charging them both with attempted first-degree murder. During a cursory search of the apartment, assisting officers located several high-powered rifles, resting in plain view, but did not, at that time, disturb them.

Both appellant and Hammond were then transported to the Police Memorial Building. There, after being given repeated Miranda warnings by Officer Eason, appellant signed a statement incriminating himself and exonerating his cousin, Hammond.

Jones, 440 So.2d at 572.

Prior to trial, Jones moved to suppress his confession. He and Hammond testified

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that the police beat them both at the scene and at the police station. The police acknowledged striking them at the scene but testified that it was necessary to do so because they were resisting arrest. The police denied hitting them at any other time. Prior to obtaining Jones' short two-sentence confession, they took him to the hospital. The attending doctor testified that Jones had only superficial injuries. The trial judge refused to suppress the confession, and this ruling was ultimately approved on appeal.

At trial, the State relied heavily upon the confession. However, there was also testimony that about a week prior to the murder Jones had told a police officer that he was tired of being hassled by the police and that he intended to kill a pig. Further, Hammond testified that on the night of the murder, he saw Jones leave the apartment with a rifle in his hand. Hammond then heard gunshots and shortly thereafter Jones returned to the apartment still carrying the rifle. This testimony was consistent with the State's theory that Jones had fired the shots from a downstairs apartment. However, Hammond was impeached by an earlier sworn statement to the effect that he did not see Jones with a gun that night. The police found two rifles in the apartment, but the condition of the bullets in the officer's body prevented them from making a ballistics comparison. A hand-swab test was taken to determine whether Jones had recently fired a gun. However, the crime laboratory analyst testified that there was an insufficient amount of antimony present for him to reach any conclusion. He explained that he would have expected this result because of the four-hour delay in taking the test and the fact that a rifle rather than a pistol was involved.

Jones' first motion for postconviction relief focused primarily upon allegations of ineffectiveness of trial counsel. Among these allegations was the contention that counsel was ineffective for failing to locate Marion Manning, whose boyfriend, Glen Schofield, was Jones' roommate and owned the guns used in the shooting. Jones argued that Ms. Manning would have testified that Schofield was at the scene at the time of the shooting and that shortly after the shots were fired he jumped into her nearby car and told her to drive away. Trial counsel, H. Randolph Fallin, testified that he recognized that Schofield might be a suspect but said that Schofield refused to talk to him when he tried to interview him at the jail where Schofield was being held following an arrest for an unrelated crime. Fallin further stated that neither Schofield nor anyone else had given him the name of the woman who was supposed to have been with Schofield following the shooting. In rejecting this argument as a basis for postconviction relief, we said:

Accepting the judge's finding that he was never told her last name, Fallin cannot be faulted for not locating Marion Manning. Moreover, it is questionable whether she could have been helpful to the defense because she testified at the postconviction hearing that as he got into the car, Schofield told her that appellant had shot the policeman.

Jones, 528 So.2d at 1174.

The current motion for postconviction relief alleges (1) that counsel was ineffective for failing to locate and present witnesses other than those referred to in the first motion for postconviction relief, and (2) that Jones is entitled to a new trial because of newly discovered evidence. Clearly, Jones is not entitled to relief on the first ground. Jones has already had a full and fair hearing on his claim of ineffectiveness of trial counsel. A defendant may not raise claims of ineffective assistance of counsel on a piecemeal basis by filing successive motions. Francis v. Barton, 581 So.2d 583 (Fla.), cert. denied, --- U.S. ----, 111 S.Ct. 2879, 115 L.Ed.2d 1045 (1991); Squires v. State, 565 So.2d 318 (Fla.1990). Moreover, his current motion was filed beyond the two-year time limit of Florida Rule of Criminal Procedure 3.850. However, allegations of newly discovered evidence fall within the exception to the two-year requirement of rule 3.850. Therefore, Jones' claims of newly discovered evidence must be carefully considered.

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The evidence which Jones claims to be newly...