Sims v. State

Decision Date16 February 2000
Docket Number No. SC00-297., No. SC00-295
Citation754 So.2d 657
PartiesTerry Melvin SIMS, Appellant, v. STATE of Florida, Appellee. Terry Melvin Sims, Petitioner, v. Michael Moore, Respondent.
CourtFlorida Supreme Court

Richard Jorandby, Public Defender, and Steven H. Malone, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida; and Mark E. Olive and Timothy P. Schardl, Special Assistant Public Defenders, Law Offices of Mark E. Olive, P.A., Tallahassee, Florida, for Appellant/Petitioner.

Robert A. Butterworth, Attorney General, and Judy Taylor Rush and Kenneth S. Nunnelley, Assistant Attorneys General, Daytona Beach, Florida, for Appellee/Respondent.

PER CURIAM.

Terry Melvin Sims, under sentence of death and warrant for execution, appeals the trial court's denial of his emergency motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the trial court's order denying postconviction relief and we deny Sims' application to this Court for relief by habeas corpus.

PROCEDURAL BACKGROUND

Sims was convicted of first-degree murder and robbery for the 1977 fatal shooting of George Pfeil during a drugstore robbery.1 His conviction and sentence were affirmed on appeal. See Sims v. State, 444 So.2d 922 (Fla.1983),

cert. denied, 467 U.S. 1246, 104 S.Ct. 3525, 82 L.Ed.2d 832 (1984). Sims then filed a postconviction motion in circuit court, which was denied following an evidentiary hearing. This Court affirmed the denial of the postconviction motion. See Sims v. State, 602 So.2d 1253 (Fla.1992),

cert. denied, 506 U.S. 1065, 113 S.Ct. 1010, 122 L.Ed.2d 158 (1993).

Sims subsequently filed a petition for habeas corpus in this Court, which was denied. See Sims v. Singletary, 622 So.2d 980 (Fla.1993)

. Sims filed a federal petition for habeas corpus in the U.S. District Court for the Middle District of Florida, which was denied as to Sims' conviction, but granted as to his sentence. See Sims v. Singletary, No. 93-1055-CIV-ORL-22 (M.D.Fla. Aug. 22, 1997). On appeal, the Eleventh Circuit Court of Appeals affirmed the district court's decision as to conviction, but reversed the district court's grant of relief as to sentencing. See Sims v. Singletary, 155 F.3d 1297 (11th Cir. 1998),

cert. denied, 527 U.S. 1025, 119 S.Ct. 2373, 144 L.Ed.2d 777 (1999). The Governor signed Sims' death warrant on September 23, 1999.

On September 28-29, Sims sought disclosure of public records pursuant to rule 3.852(h)(3) of the Florida Rules of Criminal Procedure. The trial court denied Sims' motion to compel production of records, and this Court affirmed. See Sims v. State, No. 96,731 (Fla. order filed Oct. 21, 1999); Sims v. State, No. 96,731 (Fla. Feb. 8, 2000). Sims subsequently filed a second motion for postconviction relief, which the trial court denied following an evidentiary hearing. This Court affirmed the denial of postconviction relief. See Sims v. State, 750 So.2d 622 (Fla.1999)

.2

The Governor reissued Sims' death warrant on January 26, 2000, and scheduled execution for February 23, 2000. Sims filed a third 3.850 motion in circuit court.3 In that motion, Sims argued that newly discovered evidence establishes his innocence. He also challenged the retroactive application of the recent legislative change to execution by lethal injection and the constitutionality of lethal injection. The trial court held an evidentiary hearing on Sims' claims on February 9 and 10, and ultimately denied relief on February 12, 2000. This appeal follows.

3.850 MOTION FOR POSTCONVICTION RELIEF

Newly Discovered Evidence

Sims' first claim on appeal is that newly discovered evidence establishes his innocence and the guilt of another man, Terry Wayne Gayle. At the evidentiary hearing, the defense admitted four affidavits in relation to the newly discovered evidence claim. Pursuant to stipulation, these affidavits were admitted in lieu of live testimony. The first affidavit is that of Joyce Gray, who at the time of trial was the common law wife of Curtis Baldree, one of the co-felons who testified against Sims during the trial.4 She provided several statements Baldree had allegedly made concerning Sims' involvement in the homicide. The first occurred sometime in 1981 when Baldree purportedly told her that "he has no choice but to lie-that Sims had nothing to do with it." Gray stated that Baldree admitted to her that "he had to lie to protect himself and the others that were actually involved." Another statement allegedly occurred at a Famous Amos restaurant in Jacksonville, where Baldree was accused by a man named Jerry Lawrence of "snitching" on someone who was not involved in the Longwood robbery. According to Gray, Baldree responded that "he did what he had to do." Finally, Gray stated that she met Terry Gayle on January 12, 1978. She claims that when Gayle learned that Baldree had been arrested for a "murder and armed robbery," Gayle stated "it must be the Longwood job." B.B. Halsell, another co-felon who testified against Sims, was present at the time of Gayle's statement. He whispered to Gayle and nothing more was said.

The second affidavit was prepared by Steven Scott Milliken, Gail Milliken's son. Gail Milliken, now deceased, was B.B. Halsell's girlfriend at the time of Sims' trial. Her son, now age twenty-five, claims that his mother made the following statements: that B.B. Halsell had accidently shot her in an attempt to shoot Sims when he discovered her and Sims having sex, that Terry Sims was on death row for something he did not do, and that Terry Gayle told her that he, not Sims, committed the murder.

The remaining two affidavits are from attorneys in Georgia who found Gray and obtained her statements. These affidavits were offered merely to explain why Gray's testimony constituted newly discovered evidence.

It is well established that "in order to be considered newly discovered, the evidence `must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or his counsel could not have known [of it] by the use of due diligence.'" Jones v. State, 709 So.2d 512, 521 (Fla.1998) (quoting Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla. 1994)); Robinson v. State, 707 So.2d 688, 691 (Fla.1998); Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997). Second, to warrant relief, "the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial." Jones v. State, 591 So.2d 911, 915 (Fla.1991); see also State v. Spaziano, 692 So.2d 174, 176 (Fla.1997)

. In making this determination, the trial court must "`consider all newly discovered evidence which would be admissible' at trial and then evaluate `the weight of both the newly discovered evidence and the evidence which was introduced at trial.'" Jones, 709 So.2d at 521 (quoting Jones, 591 So.2d at 916). Assuming the defendant's evidence meets the threshold requirement by qualifying as newly discovered, no relief is warranted if the evidence would not be admissible at trial. See Robinson, 707 So.2d at 691-92 (denying relief where statements made in affidavit did not expose affiant to criminal liability for perjury and lacked indicia of reliability for admission as statement against penal interest).

Here, the trial court accepted the defense's argument that the affidavits of Gray and Milliken constituted newly discovered evidence. However, the court ruled that the affidavits would be inadmissible, and therefore, they "would not result in a different verdict upon retrial." Further, as to Gray's affidavit, the court reasoned that Baldree's alleged "statements are hearsay, lack credibility and trustworthiness and are inadmissible in evidence." As for Milliken's affidavit, the trial court reasoned that the alleged statements contained therein are "either expressions of opinion without foundation or are hearsay. In either case, they lack trustworthiness and are inadmissible in evidence."5

We agree with the trial court's conclusion that Milliken's testimony is inadmissible because it consists of double hearsay and would not be admitted under any legal grounds. Notwithstanding, Sims argues that the remaining newly discovered evidence he has produced during the instant proceedings would be admissible on retrial as (1) an admission by a party opponent; (2) impeachment evidence of Baldree's trial testimony; and (3) a statement against interest. He further argues that the evidence would be admissible under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), despite its hearsay nature. We reject Sims' first ground (an admission by party opponent) and fourth ground (Chambers v. Mississippi argument) as being without merit.6 His remaining two bases for admission, however, deserve analysis.

Section 90.804(2) provides several exceptions to the hearsay rule, one of which is for statements against interest:

(c) Statement against interest—A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant's position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

§ 90.804(2)(c), Fla. Stat. (1999) (emphasis added). Contrary to Sims' posture on appeal, we find no error in the trial court's resolution of this claim. Like the trial court, we do not find that sufficient evidence exists to corroborate Baldree's alleged statements contained in the Gray affidavit. As noted above, according to Gray, when Baldree was confronted by ...

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