Kilgore v. State
| Decision Date | 17 February 2011 |
| Docket Number | Nos. SC09–257,SC09–1552.,s. SC09–257 |
| Citation | 55 So.3d 487 |
| Parties | Dean KILGORE, Appellant,v.STATE of Florida, Appellee.Dean Kilgore, Petitioner,v.Walter A. McNeil, etc., Respondent. |
| Court | Florida Supreme Court |
OPINION TEXT STARTS HERE
Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis, III, Litigation Director, and Paul Kalil, Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for Appellant.Bill McCollum, Attorney General, Tallahassee, FL, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee.PER CURIAM.
Dean Kilgore appeals the denial of his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Through his postconviction motion, Kilgore challenges his capital murder conviction and sentence of death. Kilgore has also filed a petition for writ of habeas corpus, through which he alleges ineffective assistance of appellate counsel due to counsel's failure to raise several issues on direct appeal. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons discussed below, we affirm the trial court's denial of Kilgore's rule 3.850 motion and deny relief on his petition for writ of habeas corpus.
Kilgore has been incarcerated most of his adult life. His entry into the Florida prison system began in 1970 when he was found guilty of, among other charges, three counts of aggravated assault with intent to kill. He was released from custody on September 30, 1977. On July 31, 1978, Kilgore broke into the home of Barbara Ann Jackson, shot and killed her boyfriend, and then kidnapped her.1 As a result of that incident, in December 1978, Kilgore was convicted of first-degree murder (life sentence), kidnapping (life sentence), and armed trespass (five years). The death sentence challenged here arises from the February 13, 1989, murder of Emerson Robert Jackson. On direct appeal, this Court detailed the circumstances surrounding the murder as follows:
Kilgore was serving a life sentence for first-degree murder, a consecutive life sentence for kidnapping, and an additional consecutive five-year sentence at the Polk Correctional Institution when the events in the instant case took place.
On February 13, 1989, Kilgore and his homosexual lover, Emerson Robert Jackson, had a confrontation as Jackson was leaving his cell. Prior to the confrontation with Jackson, Kilgore waited outside Jackson's cell and smoked a cigarette with another inmate. Kilgore carried a homemade shank knife. Kilgore approached Jackson outside his cell and stabbed him three times. After the stabbing, Kilgore poured a caustic liquid onto Jackson's face and into his mouth. Jackson died as a result of the stab wounds. Kilgore went to the administration building immediately after the incident and told the guards, “I stabbed the bitch.”
Kilgore was indicted for first-degree murder and possession of contraband by an inmate.
Kilgore v. State, 688 So.2d 895, 896–97 (Fla.1996).
In May 1989, Jeffrey Holmes was appointed to represent Kilgore in the trial for the murder of Emerson Robert Jackson. Holmes received what he “believed to be clear signals by the Judge that this was not a death-penalty case,” and ultimately entered a plea of nolo contendere to first-degree murder on Kilgore's behalf. During the penalty phase, Holmes filed a motion to appoint a second attorney to assist in the representation of Kilgore, but that motion was denied. Following the plea, the circuit judge in the Tenth Judicial Circuit imposed a death sentence. In the sentencing order, the trial court did not find any mitigating factors.
In the ensuing appeal, this Court relinquished jurisdiction to the trial court to determine the validity of the plea. Roger A. Alcott was appointed to represent Kilgore in that proceeding, and a circuit court judge from the Thirteenth Judicial Circuit invalidated Kilgore's initial plea and ordered that the trial be returned to the Tenth Judicial Circuit for a new disposition. Holmes, who was reinstated as counsel for a short period following the order which set aside the plea, filed a motion requesting the circuit court to impose a life sentence, but the motion was denied.
On April 23, 1993, Alcott was appointed to provide representation during the subsequent retrial. The case was also reassigned to a different circuit court judge from the Tenth Judicial Circuit. A unanimous jury in the Tenth Judicial Circuit found Kilgore guilty on both the first-degree murder and kidnapping charges, and by a vote of nine to three, the jury recommended that the death penalty be imposed. See Kilgore, 688 So.2d at 897. The circuit judge who presided at trial found two aggravating circumstances: (1) Kilgore was under sentence of imprisonment at the time he committed the murder; 2 and (2) Kilgore was previously convicted of a felony involving the use or threat of violence to the person.3 See id. The judge also found two statutory mitigating factors: (1) Kilgore acted under the influence of extreme mental or emotional disturbance; 4 and (2) Kilgore's capacity to conform his conduct to the requirements of law was substantially impaired. 5 See id. The trial judge also found three nonstatutory mitigators: (1) Kilgore's extreme poverty as a child; (2) his lack of education; (3) and his poor mental and physical condition. See id. Although no particular weight was expressly assigned to each factor, the trial judge did find that the aggravating circumstances “far outweighed” the statutory and nonstatutory mitigating circumstances. Ultimately, Kilgore was sentenced to death for the murder of Emerson Robert Jackson.
Kilgore raised six issues on direct appeal. See id. at 897–901.6 This Court rejected each of these claims, affirmed Kilgore's conviction for first-degree murder, and affirmed the imposition of the death sentence. See id. at 901.
The case currently under review is Kilgore's first postconviction proceeding before this Court. On June 8, 1998, Kilgore filed a “shell” motion to vacate judgment of conviction and sentence entered in the Tenth Judicial Circuit. Sometime thereafter, Kilgore's trial counsel, Alcott, was appointed to be a judge on the Tenth Judicial Circuit. Kilgore filed a motion to disqualify the circuit judge in the Tenth Judicial Circuit assigned to his case, which was granted, and Judge Rogers Padgett of the Thirteenth Judicial Circuit was appointed to preside over the postconviction proceedings.
Kilgore subsequently filed an amended motion to vacate judgment of conviction and sentence which raised twenty-seven claims, many of them with multiple sub-claims.7 The postconviction court held a Huff8 hearing, and on May 4, 2004, the postconviction court issued an order that summarily denied claims I, II (in part), III, IV (in part), V (in part), VI (in part), IX–XIV, XV (in part), XVI–XIX, XX (in part) XXI, and XXII–XXVI, and granted an evidentiary hearing for claims II (in part), IV (in part), V (in part), VI (in part), VIII, XV (in part), and XX (in part) 9. The court reserved ruling on claims VII and XXVII.
The postconviction court held its first evidentiary hearing on Kilgore's rule 3.850 motion from June 13, 2005, through June 15, 2005. During that hearing, postconviction counsel called upon a number of Kilgore's siblings to testify who did not testify at the 1994 trial. Most of the evidence revisited Kilgore's childhood and essentially enhanced much of the testimony from the penalty phase of Kilgore's jury trial. Evidence during the postconviction proceedings also introduced details with regard to Kilgore's time spent at the Oakley Training School (Oakley), a juvenile detention facility in rural Mississippi. The evidence detailed the extreme conditions Kilgore experienced at Oakley, specifically that he was institutionalized and frequently beaten.
The 2005 evidentiary hearing also revisited the murder of Emerson Robert Jackson. The evidence established that Emerson Robert Jackson had a reputation for taking advantage of inmates and toying with them emotionally. Jackson was notorious for being sexually involved with inmates and then ending his relationships with them, which caused many different inmates to resent him and threaten him with physical violence. Jackson was not liked by many inmates and was often the subject of death threats.
The testimony of the inmates presented against Kilgore during the 1994 proceedings was also called into question through evidence presented during the evidentiary hearing. There was testimony that alcohol, drugs, and weapons were readily available to inmates in prison. For this reason, many of the witnesses who testified at Kilgore's 1990 and 1994 trials openly admitted that they were drunk or high at the time of the murder. Each of the witnesses also had received dozens of disciplinary reports filed against them during their time in prison. Two of the inmates were offered deals from the State for their testimony; however, this information was not revealed during the 1990 or 1994 trials.
Finally, effectiveness of trial counsel during the 1994 trial was explored during the evidentiary hearing. The evidence established that Alcott did not review the entire record from the 1970 and 1978 trials, but Alcott asserted that it was not a customary practice for counsel to do so in capital cases at the time. Although he did not conduct any depositions for the 1994 trial, Alcott testified that he read all of the depositions conducted by his predecessor, Jeffrey Holmes, and did not think it was necessary to re-depose the witnesses. He also filed only two pretrial motions because he approached the case from the viewpoint that prior counsel, Holmes, was a capable defense attorney and that Holmes would have made motions during the first trial if they were...
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