Preston v. State, s. 73062

• Decision Date: 22 September 1988
• Docket Number: 73067,Nos. 73062,s. 73062
• Citation: 531 So.2d 154,13 Fla. L. Weekly 583
• Parties: 13 Fla. L. Weekly 583 Robert Anthony PRESTON, Petitioner, v. STATE of Florida, Respondent. Robert Anthony PRESTON, Petitioner, v. Richard L. DUGGER, etc., Respondent.
• Court: Florida Supreme Court

Page 154

531 So.2d 154

13 Fla. L. Weekly 583

Robert Anthony PRESTON, Petitioner, v. STATE of Florida, Respondent.

Robert Anthony PRESTON, Petitioner, v. Richard L. DUGGER, etc., Respondent.

Nos. 73062, 73067.

Supreme Court of Florida.

Sept. 22, 1988.

Larry Helm Spalding, Capital Collateral Representative and Billy H. Nolas, Staff Atty., Office of the Capital Collateral Representative, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen., and Margene A. Roper, Kellie A. Nielan and Sean Daly, Asst. Attys. Gen., Daytona Beach, for respondents.

PER CURIAM.

Robert Preston was tried and convicted of first-degree murder in June 1981. The judgment and sentence of death were affirmed. Preston v. State, 444 So.2d 939 (Fla.1984). His scheduled execution was stayed pending the resolution of a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Following an evidentiary hearing, the trial judge denied Preston's motion. That ruling was affirmed by this Court in Preston v. State, 528 So.2d 896 (Fla.1988). One of Preston's arguments in that appeal was that the judge should have reopened the evidentiary hearing to permit the introduction of recently discovered evidence. In addressing this argument, we said:

In this appeal, appellant raises a myriad of issues, some of which are predicated upon the motions which were filed after the evidentiary hearing and which sought to inject new issues into the case. Under the circumstances, the judge properly declined to rule on these issues, and they will not be further addressed in this opinion. To the extent, if any, that the content of such motions reflects newly discovered evidence tending to exonerate appellant, this may be presented through the filing of a motion for writ of error coram nobis.

Id. at 898.

Following the issuance of a new death warrant, Preston has now filed in this Court an application for leave to file petition for writ of error coram nobis and a request for stay of execution. He has also filed a petition for writ of habeas corpus. We have jurisdiction under article V, sections 3(b)(1) and (9) of the Florida Constitution.

In reviewing the application for leave to file petition for writ of error coram nobis, it becomes necessary to consider the evidence introduced at trial. While an outline of the facts is contained in our original opinion, a more detailed recitation is set forth below.

Earline Walker, who was working as a night clerk at the Li'l Champ convenience store in Forest City, was noticed missing at approximately 3:30 a.m. on the morning of January 9, 1978. All bills had been removed from the cash register and the safe, and it was subsequently determined that $574.41 had been taken. Walker's automobile was found later that day parked on the wrong side of the road approximately one and a half miles from the Li'l Champ store. Thereafter, at about 1:45 p.m. of the same day, Walker's nude and mutilated body was discovered in an open field adjacent to her abandoned automobile.

Preston lived with his brothers, Scott and Todd, at his mother's home which was located about one-quarter of a mile from the field in which Walker's body was found. Scott Preston testified that he spent the evening of January 8, 1978, at the house with his brothers and his girlfriend, Donna Maxwell. At about 11:30 p.m., he retired to the bedroom with Donna. About an hour later, Robert knocked on the door, asking Scott to go with him to the Parliament House "to get some money." When Scott declined, Robert asked one of them to help him inject some PCP. After Scott and Donna refused to do so, they heard the door slam as Robert left the house. At about 4:30 a.m., Robert returned and asked them to come to the living room where he was attempting to count some money. Because he "wasn't acting normal," they counted the money for him, which came to $325. Robert told them that he and a friend, Crazy Kenny, had gone to a gay bar called the Parliament House where they had hit two people on the head and taken their money. Scott and Donna went back to bed. Donna gave similar testimony concerning Robert's actions. She also said that shortly before 9:00 a.m., Robert returned and told her that he had heard that a body of a woman who worked in a store near their house had been discovered in a field.

The head security guard at the Parliament House testified that he observed no disturbance nor was any disturbance reported to him at that establishment during his shift which began in the early evening on January 8 and ended at 5:00 a.m. on January 9. There was no police report of any incident at the Parliament House on January 9, 1978.

A woman returning home from her late night job at about 2:20 a.m. saw Preston wearing a plaid CPO jacket at a location near the vacant lot where Walker's body was found.

Preston was arrested the day following the murder on an unrelated charge. As part of the booking process, his personal effects, including his belt, were removed, and his fingerprints were taken. A pubic hair was discovered entangled in Robert's belt buckle. A microscopic analysis of the hair together with another one discovered on his jacket indicated that they could have originated from Walker's body.

Blood samples were taken from the victim and from Preston and compared with two blood stains found on Preston's CPO jacket. The blood samples were compared as to eight separate factors, including type, Rh factor, and enzyme content. The sample from the coat and the victim matched in all eight tests, while Preston's blood did not match in three. An expert opined that the blood on the coat could not have been Preston's but could have been the victim's. He also testified that only one percent of the population would have all eight factors in their blood.

Several detached food stamps were also found in Preston's bedroom pursuant to a consent search authorized by his mother. As a result of a fracture pattern analysis, an expert witness testified that these coupons had been torn from a booklet used by Virginia Vaughn to make purchases at the Li'l Champ food store several days before the murder. Vaughn testified that at the time of her purchase the coupons had been placed either in the cash register or the safe.

Five usable latent fingerprints and palm impressions were obtained from Walker's automobile and were identified as having been made by Preston. One of these was from a cellophane wrapper of a Marlboro cigarette pack found on the front console. The other prints were located on the doorpost and the roof of the car.

Preston took the stand in his own behalf. He agreed that he was at his mother's house in the company of his brothers and Donna Maxwell the night of January 8. However, he said he had injected PCP and had no recollection of what occurred during the middle portion of the night. He did recall trying to count some money and had some recollection of going to the Parliament House in a car driven by Crazy Kenny. Preston denied having touched Walker's abandoned automobile. He also said that he had not been in the vicinity of the Li'l Champ store for approximately six months before the murder. He testified that the food stamps discovered in his room were found by him on a path behind the Li'l Champ store on the morning of the murder when he went there to purchase cigarettes. He admitted talking to Donna Maxwell regarding the discovery of the store clerk's body but said that the conversation did not occur until about 3:30 to 4:30 p.m.

The newly discovered evidence proffered in the application for leave to file petition for writ of error coram nobis consists of four affidavits signed shortly following the evidentiary hearing on the motion for postconviction relief. One of these was by Steven Hagman, who said that while both of them were inmates at Lake Butler in 1980, Scott Preston told him that he had murdered the "Walker woman" and told him how he did it. According to Hagman, he wrote the Seminole County State Attorney concerning Scott Preston's statement and was interviewed by the assistant state attorney the following year concerning this matter.

In an affidavit by John A. Yazell, he said that he had known the Prestons from having lived in their neighborhood and that he was also incarcerated with Scott Preston at Lake Butler in 1980. He, too, said that Scott told him the details of how he had killed Earline Walker. Another neighbor, James MacGeen, stated that Scott told him after Preston's arrest that Scott admitted being involved in the murder. The fourth affidavit was given by Glenn Yazell, John Yazell's brother. He said he believed Scott was guilty of the murder because his brother, John, told him that Scott had confessed. Both MacGeen and Glenn Yazell testified for Preston at the hearing on the motion for postconviction relief but were not interrogated about the matters contained in their affidavits.

In Hallman v. State, 371 So.2d 482 (Fla.1979), this Court discussed in depth the requirements of a writ of error coram nobis. Not only must the facts upon which the petition is based have been unknown to the defendant, there must also be a showing that they could not have been ascertained by the use of due diligence. At the outset, it would appear that at least the affidavits of MacGeen and the Yazell brothers do not meet this test because these persons were evidently neighborhood friends of the Prestons. Assuming, however, that this hurdle could be overcome and the facts recited in all the affidavits are accepted as being true, the next step is to evaluate the sufficiency of the application. On this issue, the Hallman court stated:

The general rule repeatedly employed by this Court to establish the sufficiency of an application for writ of error coram nobis is that the alleged facts must be of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment. Williams v....