Taylor v. State

• Decision Date: 03 May 2018
• Docket Number: No. SC17–1501,SC17–1501
• Citation: 246 So.3d 231
• Parties: Perry Alexander TAYLOR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

246 So.3d 231

Perry Alexander TAYLOR, Appellant,

v.STATE of Florida, Appellee.

No. SC17–1501

Supreme Court of Florida.

[May 3, 2018]

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, James L. Driscoll, Jr., David Dixon Hendry, and Gregory W. Brown, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and C. Suzanne Bechard, Assistant Attorney General, Tampa, Florida, for Appellee

PER CURIAM.

Perry Alexander Taylor, a prisoner under a sentence of death, appeals an order denying his successive motion for postconvictfion relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the denial of relief.

FACTS AND RELEVANT PROCEDURAL HISTORY

The facts of this case were described on direct appeal as follows:

Taylor was charged with the murder and sexual battery of Geraldine Birch whose severely beaten body was found in a dugout at a little league baseball field.^[1] Shoe prints matching Taylor's shoes were found at the scene. Taylor confessed to killing Birch but claimed that the sexual contact was consensual and that the beating from which she died was done in a rage without premeditation. Taylor testified that on the night of the killing, he was standing with a small group of people when Birch walked up. She talked briefly with others in the group and then all but Taylor and a friend walked off. Taylor testified that as he began to walk away, Birch called to him and told him she was trying to get to Sulphur Springs. He told her he did not have a car. She then offered sex in exchange for cocaine and money. Taylor agreed to give her ten dollars in exchange for sex, and the two of them went to the dugout.

Taylor testified that when he and Birch reached the dugout they attempted to have vaginal intercourse for less than a minute. She ended the attempt at intercourse and began performing oral sex on him. According to Taylor, he complained that her teeth were irritating him and attempted to pull away. She bit down on his penis. He choked her in an attempt to get her to release him. After he succeeded in getting her to release her bite, he struck and kicked her several times in anger.

Taylor v. State (Taylor I ), 583 So.2d 323, 325 (Fla. 1991) (footnote omitted). During the trial, Dr. Lee Miller, the associate medical examiner of Hillsborough County, testified that Birch died of massive blunt force injuries to the head

, neck, chest, and abdomen. Dr. Miller offered the following testimony with respect to Birch's genital injuries :

STATE: Do you have an opinion within a reasonable degree of medical probability as to what caused the injuries to the interior of the vagina ... ?

DR. MILLER: Yes.

STATE: What would be that opinion?

DR. MILLER: Something was inserted into the vagina which stretched the vagina enough for it to tear over the object that was inserted in there.

STATE: Do you have an opinion within a reasonable degree of medical probability that object could have been a hand?

DR. MILLER: Yes.

STATE: Could it have been some other type of object other than a penis?

DR. MILLER: Yes.

STATE: Is it your opinion within a reasonable degree of medical probability that a penis inserted into the vagina could have caused the injuries you just described?

DR. MILLER: No.

Dr. Miller later testified:

STATE: The injury you observed to the exterior of the vagina, within a reasonable degree of medical probability is that consistent with having been inflicted by someone kicking her to that area?

DR. MILLER: No.

STATE: The injuries you observed to the interior of the vagina, are those injuries within a reasonable degree of medical probability consistent with having been inflicted by someone kicking her in that area?

DR. MILLER: No.

STATE: Within a reasonable degree of medical probability would penetration have been necessary to inflict the injuries to the interior of the vagina?

DR. MILLER: Yes.

(Emphasis added.)

The jury convicted Taylor of both first-degree murder and sexual battery with great force. The jury recommended death by a vote of twelve to zero, and the trial court sentenced Taylor to death. Taylor I , 583 So.2d at 325. On direct appeal, this Court affirmed Taylor's convictions, but reversed the death sentence and remanded for a new penalty phase. Id. at 330. Of relevance to this case was Taylor's guilt-phase challenge to the trial court's denial of his motion for judgment of acquittal with respect to the charge of felony murder. Id. at 328. Taylor argued the evidence was legally insufficient to prove lack of consent with respect to the charge of sexual battery. Id. In rejecting this claim, we stated:

[E]ven accepting Taylor's assertion that the victim initially agreed to have sex with him, the medical examiner's testimony contradicted Taylor's version of what happened in the dugout. According to Taylor, he had vaginal intercourse with the victim for less than a minute without full penetration. He testified that she then indicated that she did not want to have intercourse and began performing oral sex on him. The medical examiner testified that the extensive injuries to the interior and exterior of the victim's vagina were caused by a hand or object other than a penis inserted into the vagina. Given the evidence conflicting with Taylor's version of events, the jury reasonably could have rejected his testimony as untruthful.

Id. at 329.² After a second penalty phase, the jury recommended a sentence of death by a vote of eight to four, and the trial court followed that recommendation. Taylor v. State (Taylor II ), 638 So.2d 30, 31–32 (Fla.), cert. denied , 513 U.S. 1003, 115 S.Ct. 518, 130 L.Ed.2d 424 (1994). On appeal, we rejected all of Taylor's claims and affirmed the sentence of death. Id. at 33.

In his initial motion for postconviction relief, Taylor raised twenty-one claims, all of which were denied. See Taylor v. State (Taylor III ), 3 So.3d 986, 991 & n.1 (Fla. 2009). This Court affirmed the denial of postconviction relief and also denied Taylor's petition for writ of habeas corpus. Id. at 1000. Of relevance to this case was Taylor's claim that Dr. Miller had recanted his trial testimony with respect to Birch's genital injuries

. Id. at 992. This Court described the testimony offered during the evidentiary hearing as follows:

Dr. Miller testified that the injuries sustained were mostly confined to the labia minora and radiated inward, while some were inside the labia minora in "what anyone would describe as the vaginal canal." However, Dr. Miller further testified that the injuries could possibly have been the result of a kick if the blow had been struck where the toe of the shoe actually went into the vagina, stretching it, that any shoe would have been able to penetrate the victim's vagina due to extraversion, but that ultimately the injuries were caused by stretching and not direct impact. Miller testified that the possibility of a kick causing the injury was "a one in a million shot" and that his opinions as expressed at trial had not changed. He attributed any differences in his testimony to differences in the questions being asked and, in some instances more elaboration in exploring possibilities.

Id. (emphasis added). The actual dialogue from the evidentiary hearing was:

DR. MILLER: [Defense postconviction expert] Dr. Wright said that the injuries to the inside of the vagina were sustained—probably sustained by a kick or a blow. Whereas, I had said they were sustained by a stretch injury. When he went on to say—to talk about that, he said, well, the blow would have had to have been with the toe of the shoe actually going directly into the vagina which would produce a stretch injury as well, as well as something being gently inserted in there. And I agree with that. I agree that if a blow had been struck where the toe of the shoe actually went, went into the vagina stretching the vagina it would have introduced the injuries that I've described.

So it would be sort of like inserting an object. Although we certainly didn't—I did not describe originally the inserting of an object and the attorneys didn't bring it out that it could have been a hard blow from a shoe going directly in. That didn't come up and it certainly seems a reasonable possibility, maybe even a probability, in reading Dr. Wright's testimony.

DEFENSE: So your testimony today would be that the injury to the ten radial lacerations in the labia minora to a reasonable degree of medical probability are the result of a kick?

DR. MILLER: I'm saying that they could have been the result of a kick. One of many scenarios where something went in there that was wider than the vagina and stretched it. We talked about kicks and blows earlier on. But the subject of the shoe or the foot actually entering the vaginal canal didn't come up. That was—it's a one-in-a-million shot.

DEFENSE: What do you mean a one-in-a-million shot?

DR. MILLER: Well, it's you can kick somebody an awful lot in that area and not have your toe actually go up into that narrow vaginal canal.

(Emphasis added.) During cross-examination, Dr. Miller stated his opinion had not changed that Birch's internal genital injuries

were caused by penetration by an object "large enough to stretch enough to produce those tears," but he did not know what the object was.

The postconviction court found that Taylor's assertion of a "supposed recantation" by Dr. Miller of his trial testimony was "not an accurate statement of [Dr. Miller's] testimony" and, therefore, Taylor had not demonstrated the existence of newly discovered evidence of innocence of sexual battery. Taylor III , 3 So.3d at 993 (alteration in original). In affirming the denial of this claim, we stated:

In essence, the postconviction court concluded that, at trial, Dr. Miller testified that the lacerations were not, within reasonable medical probability, caused by

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