Preston v. State
| Decision Date | 31 May 2007 |
| Docket Number | No. SC06-351.,No. SC05-781.,SC05-781.,SC06-351. |
| Citation | 970 So.2d 789 |
| Parties | Robert Anthony PRESTON, Jr., Appellant, v. STATE of Florida, Appellee. Robert Anthony Preston, Jr., Petitioner, v. James R. McDonough, Respondent. |
| Court | Florida Supreme Court |
Bill Jennings, Capital Collateral Regional Counsel—Middle Region, Robert T. Strain and David R. Gemmer, Assistant CCRC, Tampa, FL, for Appellant/Petitioner.
Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
Robert Anthony Preston, Jr., appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons stated below, we affirm the trial court's order denying postconviction relief and deny Preston's petition for writ of habeas corpus.
Over twenty-five years ago, Robert Anthony Preston, Jr., was convicted of the robbery, kidnapping, and murder of Earline Walker, for which he was sentenced to death. On direct appeal in Preston v. State, 444 So.2d 939 (Fla.1984) (Preston I), this Court found that the following facts were established at Preston's trial:
Early in the afternoon on January 9, 1978, the nude and mutilated body of Earline Walker was discovered in an open field in Seminole County by a detective of the Altamonte Springs Police Department. The victim's body had sustained multiple stab wounds and lacerations resulting in near decapitation.
Earline Walker was employed as a night clerk at a convenience store and had been discovered missing from the store at approximately 3:30 A.M. when an officer of the Altamonte Springs Police Department made his regular patrol. The officer also found that the sum of $574.41 was missing from the store.
The appellant, Preston, was arrested on the following day on an unrelated charge. While he was in the custody of the Seminole County Sheriff, a deputy recovered a light brown pubic hair from Preston's belt buckle. Police also found a jacket of Preston's and several detached food stamp coupons in Preston's bedroom at his mother's house the day after his arrest during a search conducted after the police had received Preston's mother's consent. Comparison of the serial numbers on the food stamps recovered from the wastebasket in Preston's bedroom with those on two coupon booklets turned over to the police by an employee of the convenience store showed four matching coupons. In addition, fracture pattern analysis confirmed the coupons had been used at the convenience store to make purchases several days before the murder. No latent fingerprints were obtained from these sources.
Analysis revealed that the pubic hair recovered from Preston's belt and another discovered on his jacket could have originated from the victim. Blood samples taken from the victim and Preston were compared with two stains found on Preston's jacket. The stains proved to be of the same blood type and same enzyme group as those of the victim. In processing the victim's automobile, which had been found abandoned on the day of the murder, several usable latent fingerprints were obtained. One was identified as being Preston's.
Two death warrants were signed in this case, but each expired while Preston sought postconviction review. Ultimately, Preston was resentenced twice. On direct appeal following his second resentencing, this Court recited the procedural history in this case as follows:
Preston was convicted of first-degree murder, kidnapping, and robbery. He was sentenced to death. At the original sentencing, the trial court found four aggravating circumstances: (1) Preston was previously convicted of a violent felony (throwing a deadly missile into an occupied vehicle); (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was committed during the course of a felony; and (4) the murder was cold, calculated, and premeditated. The trial court found no mitigating circumstances.
This Court affirmed the conviction on direct appeal. The Court struck one of the aggravating factors found by the trial judge, [the cold, calculated, and premeditated factor,] but nevertheless affirmed the death sentence. Preston v. State, 444 So.2d 939 (Fla.1984) [(Preston I)].[1] We affirmed the denial of relief on Preston's first motion for postconviction relief, Preston v. State, 528 So.2d 896 (Fla.1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1356, 103 L.Ed.2d 824 (1989) [(Preston II)2], and denied his petitions for writ of error coram nobis and for writ of habeas corpus. Preston v. State, 531 So.2d 154 (Fla. 1988) [(Preston III)].[3]
On appeal from the denial of relief on Preston's second postconviction motion, this Court vacated the death sentence and ordered resentencing. Preston's prior felony of throwing a deadly missile into an occupied vehicle had been set aside due to ineffective assistance of trial counsel, leaving only two of the four aggravating circumstances found by the trial court. Because mitigating evidence was introduced at the penalty phase and because the jury recommended death by only a one-vote margin, the Court was unable to say that the elimination of this aggravating factor constituted harmless error. Preston v. State, 564 So.2d 120 (Fla.1990) [(Preston IV)].[4]
The circuit court held a new penalty phase hearing after which the jury recommended the death sentence by a vote of nine to three. However, because it was discovered that one of the jurors had not accurately responded to voir dire interrogation, the trial court granted a new penalty phase trial. At the second resentencing hearing, a new jury unanimously recommended the death penalty. The court imposed the death penalty, finding four aggravating circumstances: (1) the murder was committed while Preston was engaged in a kidnapping; (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was committed for the purpose of avoiding arrest; and (4) the murder was committed for pecuniary gain. The court found one statutory mitigating factor (Preston's age) and five nonstatutory mitigating factors but afforded the mitigation only minimal weight.
Preston v. State, 607 So.2d 404, 406-07 (Fla.1992) (Preston V) (footnote omitted).5
In Preston V, this Court affirmed Preston's death sentence. Preston then filed the current rule 3.850 motion for postconviction relief on May 24, 1994. He amended and supplemented this motion several times, ultimately raising forty-two claims.6 The trial court held a Huff7 hearing on September 1, 2000, and granted an evidentiary hearing on claims (1), (4), (6), (17), (18), (23), (27), (28), (29), (30), (31), (32), (33), (35), (36), and (39). The trial court specifically denied claims (40) and (41) without prejudice and generally denied an evidentiary hearing on the remainder of the claims.8
An evidentiary hearing was held on January 7 and 27, 2004. Preston presented the testimony of Arthur Kutsche, his 1981 trial counsel, and James Russo and Marlene M. Alva, his 1991 resentencing counsel. The evidentiary hearing was primarily related to claims (6) and (39). On March 31, 2005, the trial court issued its order denying each of Preston's claims. Preston now appeals, raising eight issues. He also petitions for a writ of habeas corpus.
Of the forty-two claims Preston raised below in his motion for postconviction relief, he appeals or partially appeals the trial court's denial of eight claims.9 Initially, we note that two of these claims, Preston's claim that Florida's capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and his claim that guilt phase counsel was ineffective, are procedurally barred.10 In addition, in his claim concerning the state attorney's failure to produce public records, Preston fails to assert any error or request relief. Thus, this claim is without merit and need not be discussed further.11 We also find that Preston's claim that his right to equal protection was violated because his counsel could not interview his jurors in order to discover error is both procedurally barred and without merit.12 Finally, although we disagree with the trial court's conclusion that Preston's claim that lethal injection is cruel and unusual punishment is procedurally barred,13 we affirm the trial court's summary denial of this claim based on Sims v. State, 754 So.2d 657 (Fla.2000).14
Thus, we address Preston's remaining three claims: (1) the trial court erred in finding sufficient evidence to support Preston's conviction for first-degree murder based on newly discovered DNA evidence that the pubic hair found on Preston is not the victim's; (2) the trial court erred in denying the claim that resentencing counsel was ineffective for failing to present Arlene Cobb as a corroborating witness of Preston's PCP use on the night of the murder; and (3) the trial court erred in denying Preston's claim of cumulative error throughout all of the proceedings in his case. We affirm the trial court's denial of each of these claims.
Preston first claims that the trial court erred in finding that there was sufficient evidence to support his conviction in light of the newly discovered DNA evidence showing that the pubic hair recovered from his belt buckle did not match the victim.15 Preston argues that the hair was such a significant piece of evidence to the State's circumstantial evidence case that without it he likely would have been acquitted at trial. Thus, Preston argues that he is entitled to a new trial. Further, Preston argues that the trial court's findings under the cumulative...
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