King v. State, No. SC02-01

• Decision Date: 16 January 2002
• Docket Number: No. SC02-01, No. SC02-02.
• Citation: 808 So.2d 1237
• Parties: Amos Lee KING, Appellant, v. STATE of Florida, Appellee. Amos Lee King, Petitioner, v. Michael W. Moore, etc., Respondent.
• Court: Florida Supreme Court

808 So.2d 1237

Amos Lee KING, Appellant, v. STATE of Florida, Appellee.

Amos Lee King, Petitioner, v. Michael W. Moore, etc., Respondent.

Nos. SC02-01, SC02-02.

Supreme Court of Florida.

January 16, 2002.

Bill Jennings, Capital Collateral Regional Counsel-Middle, Richard E. Kiley, Assistant CCC, and April E. Haughey, Assistant CCC, Tampa, FL, for Appellant/Petitioner.

Robert A. Butterworth, Attorney General, and Carol M. Dittmar and Stephen D. Ake, Assistant Attorneys General, Tampa, FL, for Appellee/Respondent.

PER CURIAM.

Amos Lee King, a prisoner under sentence of death and an active death warrant, has filed in this Court a successive petition for writ of habeas corpus and motions seeking a stay of execution. King also appeals an order of the circuit court denying a successive motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. We deny the successive petition for writ of habeas corpus and affirm the trial court's denial of the successive 3.851 motion. We also deny King's separate request to stay his execution while he seeks an application for a writ of certiorari from the United States Supreme Court.¹

BACKGROUND

The facts of this case are set forth in our initial opinion on direct appeal, in which we affirmed King's first-degree murder conviction and death sentence for the murder of Natalie Brady. See King v. State, 390 So.2d 315, 316-17 (Fla.1980),

cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981).

In 1981, King instituted his first rule 3.850 motion for postconviction relief, and then Governor Bob Graham signed King's first death warrant. This Court affirmed the trial court's denial of the 3.850 motion and denied King's request for a stay of execution. See King v. State, 407 So.2d 904, 905 (Fla.1981)

. While King's postconviction relief appeal was pending before this Court, King petitioned for federal habeas corpus relief. The United States District Court for the Middle District of Florida granted a stay of execution but, in an unpublished decision, later vacated that stay when it denied King's federal habeas petition.

On appeal of the district court's denial, the Eleventh Circuit Court of Appeals denied King the requested habeas relief with regard to his convictions but granted relief as to the death sentence. See King v. Strickland, 714 F.2d 1481, 1495 (11th Cir. 1983)

. The United States Supreme Court vacated the Eleventh Circuit's opinion and remanded to the Eleventh Circuit for reconsideration in light of the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Strickland v. King, 467 U.S. 1211, 104 S.Ct. 2651, 81 L.Ed.2d 358 (1984). On remand, the Eleventh Circuit applied Strickland and again vacated King's death sentence, finding that King's trial counsel was ineffective during the penalty phase. See King v. Strickland, 748 F.2d 1462, 1465 (11th Cir.1984),

cert. denied, 471 U.S. 1016, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985). The court reinstated its prior opinion as to all other issues previously decided. See id.

After conducting new penalty proceedings, the trial court followed the jury's unanimous recommendation and again imposed a sentence of death upon King. The trial court found five aggravators² and no mitigators. This Court affirmed the death sentence on direct appeal but struck the aggravator of a great risk of death to many persons. See King v. State, 514 So.2d 354, 360 (Fla.1987),

cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988). Then Governor Bob Martinez signed King's next death warrant in October 1988, setting King's execution for 7 a.m. on November 30, 1988. King filed a 3.850 motion with the trial court on November 28, 1988. The trial court summarily denied the motion that day. King appealed to this Court the circuit court's 3.850 denial, petitioned for a writ of habeas corpus, and requested a stay of execution. In an unpublished order on November 29, 1988, we granted the stay of execution and remanded the 3.850 motion to the trial court for its further consideration. See King v. State, 538 So.2d 1255 (Fla.1988) (table). On remand after an evidentiary hearing, the trial court denied King's rule 3.850 motion. We affirmed that denial on appeal. See King v. State, 597 So.2d 780 (Fla.1992). We also denied King's petition for writ of habeas corpus. See King v. Dugger, 555 So.2d 355 (Fla.1990).

In 1992, King filed a habeas corpus petition in the federal district court. In a 1998 unpublished decision, the district court denied the habeas petition. The Eleventh Circuit affirmed the district court's denial of relief, see King v. Moore, 196 F.3d 1327 (11th Cir.1999),

and the Supreme Court denied King's petition for certiorari. See King v. Moore, 531 U.S. 1039, 121 S.Ct. 631, 148 L.Ed.2d 539 (2000).

While he sought relief in the federal system, King instituted several more post-conviction motions in the state system. King filed a pro se habeas corpus petition in this Court on February 7, 1997, which we denied without opinion. See King v. Singletary, 695 So.2d 700 (Fla.1997) (table). On January 24, 1997, King filed a pro se motion for postconviction relief and habeas corpus petition in the trial court, which the trial court dismissed without prejudice. King refiled those identical papers in the trial court on February 3, 2000, but withdrew them on October 26, 2000. On October 3, 2001, King filed another pro se motion for postconviction relief in the trial court.

DEATH WARRANT PROCEEDINGS

On November 19, 2001, Governor Jeb Bush signed King's third death warrant, the second after resentencing. Execution was set for 6 p.m. on Thursday, January 24, 2002. The trial court held a case management conference on November 21, 2001, and established a schedule governing all further proceedings before the trial court pending the resolution of the status of the Capital Collateral Counsel—Middle's (CCRC-M) representation of King. The case management order included filing deadline dates for public records requests and pleadings and established tentative dates for further hearings if needed. At a November 29, 2001, hearing, King withdrew a separately filed pro se motion to dismiss CCRC-M as counsel and stated that he wanted CCRC-M as his counsel. The trial court then struck King's October 3, 2001, pro se postconviction motion because King was represented by CCRC-M.

Thereafter, CCRC-M filed additional public record requests with six agencies and sought DNA testing of vaginal washings and a rectal swab taken from the murder victim, Natalie Brady. Pursuant to section 925.11, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.853, the trial court found the DNA request to be sufficient and ordered the State to respond. The State responded with a copy of a report generated by the Office of the State Attorney for the Sixth Judicial Circuit which was prepared during the summer of 2001, anticipating the October 1, 2001, effective date of section 925.11. That report concluded that the vaginal washings and rectal swab no longer existed and therefore could not be tested.

The trial court held a hearing on December 10, 2001, regarding the public records and DNA requests. At this hearing, the trial court accepted testimony from Debra Lewis, the Records Custodian, and Larry Bedore, the Director of Operations for the Pinellas County Medical Examiner's Office.³ The trial court also accepted testimony from Lieutenant Wallace Colcord, the Technical Services Supervisor, and Linda Johansen, an attorney for the Pinellas County Sheriffs Office. After the December 10 hearing, the trial court dismissed King's motion for DNA testing because the trial court ruled that the forensic evidence (i.e., the vaginal washings and rectal swab) no longer existed and therefore could not be tested.

Subsequently, on December 18, 2001, King filed a successive 3.851 motion and raised eight claims for relief. The State responded to the 3.851 motion on December 20, 2001. On December 21, 2001, the trial court held a hearing pursuant to Huff v. State, 622 So.2d 982, 983 (Fla.1993), at which all parties agreed there was no need for a further evidentiary hearing. The trial court entered an order on January 1, 2002, denying all relief. King appeals the denial of his 3.851 motion and raises eight claims.⁴ King raises eleven separate claims in his habeas petition.⁵

During the pendency of the proceedings before this Court, King filed in the trial court a motion seeking the release of evidence for DNA testing. In that motion, King sought mitochondrial DNA (mtDNA) testing of the hair fragment found on Brady's nightgown and three hairs obtained in the pubic hair combing of Brady. King also sought testing using the Short Tandum Repeat Typing DNA (STR DNA) method from an independent laboratory of the fingernail scrapings taken from Brady.⁶ King also sought the release and testing of the known standard samples for King and Brady. After a hearing on January 8, 2002, the trial court denied King's motion. King filed an amended motion, and the trial court ordered the State to respond. After accepting further arguments at a hearing on January 11, 2002, the trial court, on January 13, 2002, denied the amended motion. King appealed the trial court's ruling.

SUCCESSIVE 3.851 MOTION

King's first contention is that the trial court erred in concluding that there was no bad faith on the part of the State regarding the destruction of the vaginal washings and rectal swab. The trial court wrote:

This court has read the entire state's DNA report and the entire transcript of the December 10, 2001 hearing. After doing so, this court makes the following findings: 1. That the vaginal washings and the rectal swabs were destroyed by someone in the medical examiner's office, either immediately after they were tested, or within one to two years after they were taken,

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