Trepal v. State

• Decision Date: 06 March 2003
• Docket Number: No. SC89710, No. SC01-2267.
• Citation: 846 So.2d 405
• Parties: George James TREPAL, Appellant, v. STATE of Florida, Appellee. George James Trepal, Petitioner, v. James V. Crosby, Jr., Respondent.
• Court: Florida Supreme Court

846 So.2d 405

George James TREPAL, Appellant, v. STATE of Florida, Appellee.

George James Trepal, Petitioner, v. James V. Crosby, Jr., Respondent.

Nos. SC89710, SC01-2267.

Supreme Court of Florida.

March 6, 2003.

Rehearing Denied May 15, 2003.

Neal Andre Dupree, Capital Collateral Regional Counsel-South, Fort Lauderdale, and Tod G. Scher, Special Assistant CCRC-South, Miami, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, and Carol M. Dittmar, Assistant Attorney General, Tampa, for Appellee/Respondent.

SHAW, Senior Justice.

George James Trepal appeals two orders of the circuit court denying his first and second motions for postconviction relief under Florida Rule of Criminal Procedure 3.850 following evidentiary hearings on both motions. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm. Trepal also has filed in this Court a petition for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. We deny the petition.

I. FACTS

The facts of the underlying crime are set forth fully in this Court's opinion on direct appeal, which provides as follows in relevant part:

Trepal was convicted of the first-degree murder of Peggy Carr. Trepal also was convicted of six counts of attempted first-degree murder (other members of the Carr household), seven counts of poisoning food or water, and one count of tampering with a consumer product (Coca-Cola)....

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We find the evidence sufficient to support a verdict of premeditated murder. There is substantial, competent evidence that prior to the death of Peggy Carr, the Carrs and Trepals, neighbors in Alturas, Florida, had had numerous altercations. Trepal once threatened one of the Carr children by saying, "I'm going to kill you." Shortly before Peggy Carr, her son, Duane, and her stepson, Travis, were hospitalized for thallium poisoning in October 1988, the Carrs received a note threatening: "two weeks to move out of Florida forever or else you will all die." Thallium-laced Coca-Colas were found in the Carr household, after weeks of searching, by state and federal environmental agencies. (The Carrs had vacated the house during the week of the hospitalizations and never had moved back.) When their next-door neighbor, Trepal, was asked why anyone would want to poison the family, he said, "to get them to move out, like they did."

Trepal had researched and written a pamphlet about voodoo for a Mensa murder weekend, which read, in part:

Few voodooists believe they can be killed by psychic means, but no one doubts that he can be poisoned. When a death threat appears on the doorstep, prudent people throw out all their food and watch what they eat. Hardly anyone dies from magic. Most items on the doorstep are just a neighbor's way of saying, "I don't like you. Move or else!"

The themes (move or else) in the threatening note and in the voodoo pamphlet were similar.

Trepal told Goreck, an undercover agent, that the poisonings were "just a personal vendetta." Contrary to Trepal's assertion that he went to his wife's office every day, in fact he stayed at home or went to his own office each day. There was a window of time when the Carr household was unoccupied and it was undisputed that Trepal was able to surveil the household. There was testimony that the Carr house often was left unlocked. The Trepals and Carrs shared a water supply; Trepal's presence on the Carr property thus would not have been unusual.

The evidence at trial showed that Trepal is extremely intelligent, and has a highly developed knowledge of chemistry. Evidence also was presented that thallium is a by-product of amphetamine production and Trepal was the chemist for an amphetamine laboratory in the 1970s. Thallium is a poison so toxic that it has been banned by the Food and Drug Administration since 1982. Because of its toxicity, its sale and distribution are controlled and recorded, and it is not available to the general public, but only to universities and research centers. A bottle of thallium was found in Trepal's garage in Alturas. A hand-assembled journal, bearing Trepal's prints and containing information on poisons, including thallium, and data on the autopsy detection of poisons, was found in Trepal's Sebring home. A great many chemicals were found there, along with chemical equipment. The Agatha Christie novel, Pale Horse, dealing with murder by introducing thallium into a household, also was found there.

Evidence was presented that of the chemical forms of thallium that exist, only one form can be introduced into Coca-Cola without producing noticeable changes in the drink. Evidence was presented that the bottle caps had been pried off the Coca-Cola bottles. Evidence was introduced that worldwide, Coca-Cola found no other incidences of tampering with the product, and received no ransom note after the poisoning. Evidence also was presented that a bottle-capping machine was seen among the items in the Trepals' garage when they moved into their Alturas home.

Trepal v. State, 621 So.2d 1361, 1363-65 (Fla.1993) (footnotes omitted).

The jury recommended death by a nine-to-three vote, and the judge imposed a sentence of death based on three aggravating circumstances,¹ one statutory mitigating circumstance,² and several nonstatutory mitigating circumstances.³ Trepal raised seven issues on appeal.⁴ We affirmed. On June 16, 1995, Trepal filed in circuit court an initial rule 3.850 motion and on March 21, 1996, an amended motion,⁵ raising thirty claims.⁶ The circuit court on October 7-11, 1996, conducted an evidentiary hearing on several claims and denied relief. Trepal appealed and, while the appeal was pending in this Court, the Office of the Inspector General of the United States Department of Justice ("OIG") issued a report on April 15, 1997, that was highly critical of the work performed by the FBI Crime Laboratory in Washington, D.C., in certain cases, including the present case.⁷

This Court consequently remanded this case to the circuit court to give Trepal an opportunity to peruse the OIG report and file a second rule 3.850 motion. Trepal on September 1, 1998, filed a second amended rule 3.850 motion, raising twenty-one claims relating to tests conducted at the FBI Crime Laboratory.⁸ The circuit court held a bifurcated evidentiary hearing in 1999,⁹ and denied relief. Trepal appeals, raising six claims¹⁰ relating to issues raised in both his first and second rule 3.850 motions. Trepal also has filed in this Court a petition for a writ of habeas corpus, raising two claims.¹¹

II. RULE 3.850 MOTIONS

As noted above, Trepal raises six claims in his present appeal of the circuit court's orders denying rule 3.850 relief. The claims relate to both his first and second rule 3.850 motions and contain numerous subclaims. The bulk of Trepal's postconviction appellate argument focuses on the first claim: no adversarial testing of the issues in the guilt phase of the trial. This claim is divided into three subclaims: (a) false and inadmissible scientific testimony, (b) ineffectiveness of trial counsel, and (c) other exculpatory evidence. Most of his argument on this claim focuses on the first subclaim, which concerns improprieties in the testing procedures at the FBI lab. This subclaim was the focus of the second evidentiary hearing and is the heart of his present appeal. Accordingly, we discuss this subclaim at length.

While the first subclaim pertains exclusively to Trepal's second rule 3.850 motion, the second and third subclaims pertain to his first rule 3.850 motion and were addressed at the first evidentiary hearing. We also discuss these latter two subclaims. Finally, we discuss Trepal's fifth claim (ineffectiveness of penalty phase counsel), which also pertains to his first rule 3.850 motion and was addressed at length at the first evidentiary hearing.

III. SUBCLAIM (a): FALSE SCIENTIFIC TESTIMONY

In his first subclaim, Trepal asserts that the trial testimony of FBI specialist Roger Martz was false and inadmissible, that his testimony impermissibly tainted the trial, and that he (Trepal) thus is entitled to a new trial. This subclaim was the focus of the second evidentiary hearing below and the parties presented extensive testimony on this issue.

A. Factual History

The circuit court, in its order denying relief, summarized the factual history of the case relating to this subclaim:

In late October 1988, Peggy Carr, her son, and stepson became seriously ill and were hospitalized. Peggy Carr later died. Doctors determined that she had died of thallium poisoning. Evidence taken from the victims' home included five empty 16 ounce glass Coca-Cola bottles and three full bottles. The empty bottles were sent to the Florida Department of Health and Rehabilitative Services Lab in Jacksonville. The lab determined that thallium was present; it did not attempt to determine the type of thallium.

In December 1988, the FBI received three unopened Coca-Cola bottles recovered from the victims' residence and examined them to determine whether they contained thallium. In the same month, the Coca-Cola Company began testing samples of unadulterated Coca-Cola with various forms of thallium to determine what types of thallium could have been added without altering the taste or appearance of the beverage. Frederick Reese, an analyst for the Coca-Cola Company, tested for thallium phosphate, thallium formate, thallium malonate, thallium sulfate, thallium I nitrate, and thallium III nitrate. Reese discovered that both thallium sulfate and thallium I nitrate dissolve in Coke without changing its appearance or foaming out of the bottle. The Coca-Cola Company provided its test results to the Polk County Sheriff's Office and the FBI.

Donald Havekost, a special agent in the Elemental Analysis Unit of the FBI Laboratory, examined the residue samples taken from the empty bottles along with the three full Coke bottles taken from the Carr home. FBI lab personnel

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