Overton v. State, SC04-2071.

Decision Date29 November 2007
Docket NumberNo. SC04-2071.,No. SC06-237.,No. SC05-964.,SC04-2071.,SC05-964.,SC06-237.
Citation976 So.2d 536
PartiesThomas Mitchell OVERTON, Appellant, v. STATE of Florida, Appellee. Thomas Mitchell Overton, Appellant, v. State of Florida, Appellee. Thomas Mitchell Overton, Petitioner, v. James R. McDonough, etc., Respondent.
CourtFlorida Supreme Court

Neal A. Dupree, Capital Collateral Regional Counsel, Terri L. Backhus, Special Assistant CCR Counsel, and Christina L. Spudeas, Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for Appellant/Petitioner.

Bill McCollum, Attorney General Tallahassee, Florida, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, FL, for Appellee/Respondent.


Thomas Mitchell Overton seeks review of the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. Overton also appeals the trial court's denial of his second motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853. Finally, Overton petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const; Fla. R.Crim. P. 3.853.


Overton was convicted for the first-degree murders of Susan and Michael MacIvor, for the killing of the MacIvors' unborn child, for sexual battery upon Susan, and for the burglary of the MacIvor home. See Overton v. State, 801 So.2d 877, 888 (Fla.2001). This Court detailed the facts surrounding these murders and other crimes in the direct appeal of Overton's convictions and death sentences:

On August 22, 1991, Susan Michelle MacIvor, age 29, and her husband, Michael MacIvor, age 30, were found murdered in their home in Tavernier Key....


Once law enforcement officers arrived, a thorough examination of the house was undertaken. In the living room, where Michael's body was found, investigators noted that his entire head had been taped with masking tape, with the exception of his nose which was partially exposed.... The investigators surmised that a struggle had taken place because personal papers were scattered on the floor near a desk, and the couch and coffee table had been moved....

Continuing the search toward the master bedroom, a piece of clothesline rope was found just outside the bedroom doorway. Susan's completely naked body was found on top of a white comforter. Her ankles were tied together with a belt, several layers of masking tape and clothesline rope. Her wrists were also bound together with a belt. Two belts secured her bound wrists to her ankles. Around her neck was a garrote formed by using a necktie and a black sash, which was wrapped around her neck several times. Her hair was tangled in the knot. Noticing that a dresser drawer containing belts and neckties had been pulled open, officers believed that the items used to bind and strangle Susan came from inside the home.... Also under the comforter was her night shirt; the buttons had been torn off with such force that the button shanks had been separated from the buttons themselves. Near the night shirt were her panties which had been cut along each side in the hip area with a sharp instrument.


The medical examiner determined that Susan was approximately eight months pregnant at the time and proceeded to examine the fetus. The doctor determined that the baby would have been viable had he been born, and that he lived approximately thirty minutes after his mother died. The doctor testified that there was evidence that he tried to breath on his own.


The discovery of this death scene produced a large-scale investigation, and comparable media coverage focused on the murders. Over the years following the murders, law enforcement agencies investigated several potential suspects. Through this investigatory process, Thomas Overton's name was brought up during a brain-storming session in May 1992. The reason he was considered a suspect was because he was a known cat burglar, whom police suspected in the murder of 20 year old Rachelle Surrett. At the time of the MacIvor murders, Overton worked at the Amoco gas station which was only a couple of minutes away from the MacIvor home....

In June of 1993, the cuttings from the bedding were sent to the FDLE lab.... Through a process known as restriction fragment length polymorphism (RFLP), Dr. Pollock was able to develop a DNA profile from two of the cuttings.... Dr. Pollock compared the profile to samples from several potential suspects. No match was made at that time.

In late 1996, Overton, then under surveillance, was arrested during a burglary in progress. Once in custody, officers asked him to provide a blood sample, which Overton refused. Days later, Overton asked correction officers for a razor, and one was provided. Overton removed the blade from the plastic razor using a wire from a ceiling vent, and made two cuts into his throat. The towel that was pressed against his throat to stop the bleeding was turned over to investigators by corrections officers....

In November of 1996, over five years after the murders, Dr. Pollock was able to compare the profile extracted from the stains in the bedding to a profile developed after extracting DNA from Overton's blood. After comparing both profiles at six different loci, there was an exact match at each locus....

In 1998, the cuttings from the bedding were submitted to yet another lab, the Bode Technology Group (Bode).... The Bode lab conducted a different DNA test, known as short tandem repeat testing (STR), from that performed by the FDLE. Overton's DNA and that extracted from a stain at the scene matched at all twelve loci.

Id. at 881-84 (footnotes omitted).

After Overton was convicted for the crimes surrounding this incident, the jury recommended the death penalty by a vote of nine to three for the murder of Susan and by a vote of eight to four for the murder of Michael. See id. at 888-89. The trial judge found the following five aggravators with regard to both victims: (1) the murders were heinous, atrocious, and cruel ("HAC"); (2) the murders were committed in a cold, calculated, and premeditated manner; (3) the defendant had a previous conviction for a violent felony (contemporaneous conviction for murder); (4) the murders were committed while Overton was committing a sexual battery and burglary; and (5) the murders were committed for the purpose of avoiding or preventing a lawful arrest. See id. at 889. The trial judge found no statutory mitigating circumstances and two nonstatutory mitigating circumstances.1 The trial court found that "in weighing the aggravating circumstances against the mitigating circumstances, the scales of life and death tilt unquestionably to the side of death" and imposed the death sentence on Overton for each of the murders. Id. With regard to the other offenses, Overton was given a fifteen-year sentence of imprisonment for the killing of an unborn child, a life imprisonment term for the burglary, and a life imprisonment term for the sexual battery. See id.

On direct appeal, this Court considered the following claims: (1) the trial court erred in denying Overton's challenges for cause with regard to prospective jurors Russell and Heuslein; (2) the trial court erred in not compelling discovery of documents from the Bode Lab relating to the STR DNA tests and in not granting a continuance so that Overton's counsel could review these documents; (3) the trial court erred in not appointing an additional defense expert to rebut the State's evidence relating to the defense theory concerning Nonoxynol2; (4) the trial court erred in denying Overton's motion for mistrial after the State made statements during the rebuttal closing argument that Overton had requested only one Nonoxynol test but the State had sought additional testing; (5) the trial court erred in allowing the State to improperly bolster Zientek's testimony through the alleged hearsay testimony of a prison chaplain; (6) the trial court erred in ruling that the State could elicit from Detective Visco the context from which the internal affairs complaint that Overton filed against him arose; (7) the trial court erred in finding the HAC aggravator with regard to the murder of Michael; (8) the trial court erred in not instructing the jury that it should use great caution in relying on the testimony of the informants; and (9) the trial court erred in not considering certain available mitigation that Overton chose not to present. See id. at 889-905. This Court denied all of these claims. See id. at 906. This Court also determined that sufficient evidence existed and the death sentences were proportionate. See id. at 905. Accordingly, this Court affirmed Overton's convictions and death sentences. See id. at 906.

Overton filed an initial rule 3.851 motion for postconviction relief on April 30, 2003. On October 30, 2003, Overton filed an amended motion for postconviction relief, in which he presented the following allegations: (I) access to files and records that were in possession of state agencies were improperly withheld in violation of Florida Rule of Criminal Procedure 3.852; (II) trial counsel failed to adequately investigate/prepare a case and challenge the State's case due in part to the actions of the trial court and the State; (III) the State committed Brady3 and Giglio4 violations and trial counsel was ineffective for the failure to present this during the trial; (IV) the State improperly used James Zientek (a jailhouse informant) as an undisclosed agent of law enforcement; (V) Overton was prejudiced by pre-indictment delay; (VI) trial counsel operated under an actual conflict of interest; (VII) an improper jury instruction with regard to expert testimony was used during trial; (VIII) the rule prohibiting attorneys from interviewing jurors prevented trial counsel from being effective; (IX) the voir dire by trial counsel was improper; (X) the combination of...

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