Van Poyck v. State, SC05-1513.

• Decision Date: 03 May 2007
• Docket Number: No. SC05-1513.,SC05-1513.
• Citation: 961 So.2d 220
• Parties: William VAN POYCK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

961 So.2d 220

William VAN POYCK, Appellant, v. STATE of Florida, Appellee.

No. SC05-1513.

Supreme Court of Florida.

May 3, 2007.

Rehearing Denied July 16, 2007.

Mark Olive, Tallahassee, FL, Benjamin B. Brown of Quarles and Brady, LLP, Naples, FL, Jeffrey O. Davis and Lauri A. Rollings of Quarles and Brady, LLP, Wilwaukee, WI, for Appellant.

Bill McCollum, Attorney General, Tallahassee, FL, Celia A Terenzio, Assistant Attorney General, West Palm Beach, FL, for Appellee.

PER CURIAM.

William Van Poyck, who is under a sentence of death, appeals the denial of his successive motion for postconviction relief. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. The motion relies on an affidavit by a former prison inmate claiming that Van Poyck's codefendant, Frank Valdes, confessed that he committed the murder for which both he and Van Poyck were sentenced to death. Based on decisions in previous appeals rejecting related claims concerning the identity of the triggerman, including our affirmance in 2005 of the denial of DNA testing, we affirm the trial court's order.

FACTS AND PROCEDURAL HISTORY

Prior Proceedings

Van Poyck was convicted of first-degree murder and sentenced to death for the killing of correctional officer Fred Griffis. The murder occurred during an attempt by Van Poyck and Valdes¹ to free Van Poyck's friend, James O'Brien, from a prison van while he was being taken by Griffis and another correctional officer, Steven Turner, to a doctor's appointment outside prison. Our opinion in Van Poyck's direct appeal explained the circumstances of the murder:

Griffis, who was not armed, drove the van while Turner watched O'Brien, who was secured in a caged area behind Griffis. After Griffis pulled the van into an alley behind the doctor's office, Turner looked down for his paperwork. Upon looking up, he saw a person, whom he later identified as Van Poyck, aiming a pistol at his head. Van Poyck ordered Turner to exit the van. At the same time, Frank Valdez, an accomplice of Van Poyck's, went to the driver's side of the van. Turner testified that Van Poyck took his gun, ordered him to get under the van, and kicked him while he was attempting to comply with Van Poyck's order. He testified that, while under the van, he saw Griffis exit the van; he noticed another person forcing Griffis to the back of the van; and, while noticing two sets of feet in close proximity to the rear of the van, he heard a series of shots and saw Griffis fall to the ground. Turner further stated that Van Poyck had stopped kicking him when the gunfire started, but noted that he did not know where Van Poyck was at the time of the shooting. Griffis was shot three times, once in the head and twice in the chest. Expert testimony indicated that the shot to the head was fired with the barrel of the gun placed against Griffis' head and that each of the wounds would have been fatal. It was also determined that the murder weapon was a Hungarian Interarms nine millimeter semiautomatic pistol.

Van Poyck v. State, 564 So.2d 1066, 1067 (Fla.1990) (Van Poyck I).

The jury found Van Poyck guilty of first-degree murder and, at the conclusion of the penalty phase, recommended the death penalty by a vote of eleven to one. The trial court found four aggravating factors² and nothing in mitigation. Concerning Van Poyck's role in the murder, the court found:

Mr. Van Poyck is an individual who is quite intelligent and very knowledgeable as to the law and that he himself admits that he was well aware of the law including felony murder, that he himself was the individual who planned this operation who retained Mr. Valdez to assist him and who checked the guns on the way to the location where this murder occurred to see to it that they were loaded. By all evidence Mr. Van Poyck was a major participant in this murder.

The Court further finds that the State clearly presented competent and substantial evidence as to the crime of first degree felony murder and or first degree premeditated murder and in reality presented competent evidence that Mr. Van Poyck may have in fact been the individual who pulled the trigger and shot Fred Griffis.

Van Poyck was sentenced to death.

This Court affirmed Van Poyck's murder conviction and death sentence. We concluded that the conflicting evidence on Van Poyck's whereabouts when Griffis was shot rendered the evidence legally insufficient to prove premeditated murder. Van Poyck I, 564 So.2d at 1069. However, we rejected Van Poyck's claim that he "was a minor actor and did not have the culpable mental state to kill" required for imposition of the death penalty on a defendant who was not the actual killer. Id. at 1070. We stated:

Although the record does not establish that Van Poyck was the triggerman, it does establish that he was the instigator and the primary participant in this crime. He and Valdez arrived at the scene "armed to the teeth." Since there is no question that Van Poyck played the major role in this felony murder and that he knew lethal force could be used, we find that the death sentence is proportional.

Id. at 1070-71.

Subsequently, this Court affirmed the denial of Van Poyck's initial motion for postconviction relief. Van Poyck v. State, 694 So.2d 686 (Fla.1997) (Van Poyck II). Among other issues addressed, we rejected Van Poyck's claim that "the judge and jury weighed the invalid aggravating factors that the murder was premeditated or that Van Poyck was the triggerman," concluding that the challenge to the conviction for premeditated murder was resolved in the direct appeal. Id. at 698 & n. 6.³

The United States District Court for the Southern District of Florida denied Van Poyck's petition for a writ of habeas corpus, and the Eleventh Circuit affirmed. See Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318 (11th Cir.2002) (Van Poyck III). The Eleventh Circuit addressed two issues relevant to the current proceedings. The first issue was whether Van Poyck's trial counsel was ineffective in failing to present evidence that Valdes' clothing had blood matching Griffis's blood type, that Valdes' girlfriend purchased the murder weapon, and that the murder weapon was in Valdes' possession when he and Van Poyck left to commit the crime. The Eleventh Circuit concluded that although this Court had not addressed the issue, it could reasonably have found that Van Poyck suffered no prejudice from any deficiency. Id. at 1325. The Eleventh Circuit observed that the State presented no evidence at the penalty phase that Van Poyck was the triggerman, and that although the prosecutor suggested several times in closing argument that Van Poyck killed Griffis, its case for the death penalty rested mainly on the four aggravating factors and Van Poyck's role as a major participant in the underlying felony. Id. at 1325-26. The Eleventh Circuit stated:

Especially because the prosecutor's main argument was that the death penalty was appropriate regardless of who the triggerman was, we see no reasonable probability that, if Counsel had presented the additional evidence that Petitioner was not the triggerman, the outcome of the sentencing phase would have been different. The Florida Supreme Court could reasonably conclude that no prejudice existed. The Florida Supreme Court did reasonably conclude that the triggerman-evidence claim entitled Petitioner to no relief.

Id. at 1326.

The Eleventh Circuit also rejected Van Poyck's claim that the jury and trial court improperly considered evidence that Van Poyck was the triggerman. The court concluded that because the evidence of premeditation was insufficient, it had "no good reason to think that the jury relied on something more than the factually supported theory of felony murder." Id. at 1329. The Eleventh Circuit also noted that "whether [Van Poyck] was actually the triggerman was of only minimal importance during the prosecutor's closing." Id. Finally, the Eleventh Circuit concluded that the trial court's statement that the State presented competent evidence that Van Poyck may have been the triggerman "does not mean that the trial court had found, beyond a reasonable doubt, that Petitioner was the triggerman. And, it certainly does not mean that the trial court relied upon Petitioner's role as triggerman as some kind of aggravating factor." Id. at 1330.

In 2005, this Court affirmed the trial court's denial of Van Poyck's request under Florida Rule of Criminal Procedure 3.853 for DNA testing of clothing Valdes and Van Poyck were wearing when Griffis was killed. See Van Poyck v. State, 908 So.2d 326, 330 (Fla.2005) (Van Poyck IV). Citing to the Eleventh Circuit opinion in Van Poyck III, we relied on the lack of emphasis on the identity of the triggerman in the penalty phase and the trial court's sentencing order. We also pointed to our conclusion in the direct appeal that Van Poyck was the instigator and a major participant in the crime. We concluded that "there is no reasonable probability that Van Poyck would have received a lesser sentence had DNA evidence establishing that he was not the triggerman been presented at trial." Id.

Current Proceedings

In 2005, while his appeal in Van Poyck IV was still pending, Van Poyck filed a successive motion for postconviction relief asserting that an affidavit by a prison acquaintance of Valdes constituted newly discovered evidence. In the affidavit, Enrique Diaz stated that between 1990 and 1997, Valdes "repeatedly and consistently" said he had shot and killed Griffis. Diaz explained that he delayed reporting these conversations until he was released from prison in August 2004 because he feared for his life, a concern that was "reinforced when F.S.P. guards murdered Frank Valdes in his cell while [he] was there at F.S.P."

The trial court denied Van Poyck's motion without an evidentiary hearing, finding that it was untimely, that the Diaz affidavit did not constitute newly discovered evidence, and that "all of the defendant's grounds...