Transcription
IN THE SUPREME COURT OF FLORIDATHOMAS MITCHELL OVERTON,Appellant,v.CASE NO. SC12-1160L.T. No. CFP-96-30167STATE OF FLORIDA,Appellee.ON APPEAL FROM THE CIRCUIT COURTOF THE SIXTEENTH JUDICIAL CIRCUIT,IN AND FOR MONROE COUNTY, FLORIDAANSWER BRIEF OF THE APPELLEEPAMELA JO BONDIATTORNEY GENERALSCOTT A. BROWNEASSISTANT ATTORNEY GENERALFlorida Bar No. 0802743Concourse Center 43507 E. Frontage Road, Suite 200Tampa, Florida 33607-7013Telephone:(813) 287-7910Facsimile: (813) [email protected] FOR APPELLEE
TABLE OF CONTENTSTABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iTABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iiPRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VSTATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23ISSUE I.23WHETHER THE MOTION TO DISQUALIFY THE CIRCUITCOURT JUDGE WAS LEGALLY SUFFICIENT AND SHOULDHAVE BEEN GRANTED AS A MATTER OF LAW?ISSUE II.28WHETHER THE STATE'S FAILURE TO DISCLOSE ENTTHEORIESBEFOREDIFFERENTFACTFINDERS IN DIFFERENT PROCEEDINGS VIOLATED MR.OVERTON'S CONSTITUTIONAL RIGHTS TO A FAIR TRIALAND DUE PROCESS?ISSUE III.46WHETHER NEWLY DISCOVERED EVIDENCE THAT OVERTON' SMURDER VICTIMS WERE UNDER SURVEILLANCE AND THATANOTHER PERSON MAY HAVE COMMITTED THIS CRIMESUPPORTS THE DEFENSE CLAIM OF ACTUAL INNOCENCE?ISSUE RTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76CERTIFICATE OF FONT COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
TABLE OF AUTHORITIESFederal CasesBradshaw v. Stumpf,545 U.S. 175, 125 S. Ct. 2398 (2005) .21, 32Brady v. Maryland,373 U.S. 83, 83 S. Ct. 1194 (1963).36, 49, 50, 51Dist. Attorney's Office for Third Judicial Dist. v. Osborne,557 U.S. 52, 129 S. Ct. 2308, 2319-20 (2009).36Runningeagle v. Ryan,686 F.3d 758 (9th Cir. 2012) .36Strickler v. Greene,527 U.S. 263, 119 S. Ct. 1936 (1999) .51United States v. Monaco,852 F.2d 1143, 1147 (9th Cir. 1988) .26Williamson v. U.S.,512 U.S. 594, 114 S. Ct. 2431 (1994) .52, 55Wood v. Bartholomew,516 U.S. 1, 116 S. Ct. 7 (1995) .56, 74State CasesArbelaez v. State,775 So. 2d 909 (Fla. 2000) .24Barwick v. State,660 So. 2d 685 (Fla. 1995) .24Blanco v. State,702 So. 2d 1250 (Fla. 1997) .49Byrd v. State,14 So. 3d 921 (Fla. 2009) .32Cole v. State,895 So. 2d 398 (Fla. 2004) .72Com. v. Foster,77 Mass. App. Ct. 444,932 N.E.2d 28711(Mass. App. Ct. 2010).27
Doorbal v. State,983 So. 2d 464 (Fla. 2008) .41Dufour v. State,69 So. 3d 235 (Fla. 2011) .34Erlsten v. State,78 So. 3d 60 (Fla. 4th DCA 2012) .45Ferrell v. State,29 So. 3d 959 (Fla. 2010) .37Glock v. Moore,776 So. 2d 243 (Fla. 2001) .44Hitchcock v. State,866 So. 2d 23 (Fla. 2004) .71, 72, 73, 74Hunter v. State,29 So. 3d 256 (Fla. 2008) .42Jackson v. State,599 So. 2d 103 (Fla. 1992) .26King v. State,808 So. 2d 1237 (Fla. 2002) .73Kokal v. State,901 So. 2d 766 (Fla. 2005) .25, 26, 53, 56Lambrix v. State,39 So. 3d 260 (Fla. 2010) .40, 41Lott v. State,931 So. 2d 807 (Fla. 2006) .72, 73Marek v. State,14 So. 3d 985 (Fla. 2009) .49Marek v. State,8 So. 3d 1123 (Fla. 2009) .33, 35McCray v. State,699 So. 2d 1366 (Fla. 1997) .69Moore v. State,820 So. 2d 199 (Fla. 2002) .24, 27111
Naylor v. State,51 So. 3d 589 (Fla. 3d DCA 2010) .55Overton v. State,801 So. 2d 877 (Fla. 2001) .1, 56, 60, 70Overton v. State,976 So. 2d 536 (Fla. 2007) .11, 39, 65Pagan v. State,29 So. 3d 938 (Fla. 2009) .40People v. Bennett,238 A.D. 2d 898, 660 N.Y.S. 2d 772(N.Y.A.D. 4 Dept. 1997).27Peterson v. Asklipious,833 So. 2d 262 (Fla. 4th DCA 2002) .23Riechmann v. State,966 So. 2d 298 (Fla. 2007) .23, 43Rimmer v. State,59 So. 3d 763 (Fla. 2010) .42Robinson v. State,865 So. 2d 1259 (Fla.),cert. denied, 540 U.S. 1171 (2004) .72Rodriguez v. State,39 So. 3d 275 (Fla. 2010) .51Sireci v. State,773 So. 2d 34 (Fla. 2000) .39Sireci v. State,908 So. 2d 321 (Fla. 2005) .71State v. Muhammad,866 So. 2d 1195 (Fla. 2003) .37Walton v. State,3 So. 3d 1000 (Fla. 2009) .33White v. State,964 So. 2d 1278 (Fla. 2007) .45lv
Other Authorities§ 90.804(2) (c), Fla. Stat. (2005) .54§ 90.804 (2), Fla. Stat. (2005) .54Fla. R. Crim. P. 3.851(e) (1) (D) .41Fla. R. Crim. P. 3.851(e) (2) (C) .41Fla. R. Crim. P. 3.853(c) (5) (A) .72PRELIMINARY STATEMENTCitations to the record in this brief will be designated asfollows:The original post-conviction record will be cited at "PCR"with the appropriate volume and page ictionappeal will be cited as "V" with the appropriate volume and pagenumbers.V
STATEMENT OF THE CASE AND FACTSThe State does not accept the statement of facts set forthin Appellant's brief as it contains argument. Consequently,theState provides the following statement of facts and proceduralhistory.Trial FactsIn Overton v.State,801 So.2d 877,881-888(Fla.2001),this Court provided the following statement of facts:On August 22, 1991, Susan Michelle MacIvor, age29, and her husband, Michael MacIvor, age 30, werefound murdered in their home in Tavernier Key. Susanwas eight months pregnant at the time with thecouple's first child.Susan and Michael were last seen alive at theirchildbirth class, which ended at approximately 9 p.m.on August 21,1991.Concerned co-workers and aneighbor found their bodies the next morning insidethe victims' two-story stilt-house located in a gatedcommunity adjacent to a private airstrip.Once law enforcement officers arrived, a thoroughexamination of the house was undertaken. In the livingroom, where Michael' s body was found, investigatorsnoted that his entire head had been taped with maskingtape,with the exception of his nose which waspartially exposed. He was found wearing only a T-shirtand underwear. There was a blood spot on the shoulderarea of the tee-shirt. When police removed the maskingtape, they discovered that a sock had been placed overhis eyes, and that there was slight bleeding from thenostril area. Bruising on the neck area was alsovisible. The investigators surmised that a strugglehad taken place because personal papers were scatteredon the floor near a desk, and the couch and coffeetable had been moved. A small plastic drinking cup wasalso found beside Michael's body.Continuing the search toward the master bedroom,a piece of clothesline rope was found just outside the1
bedroom doorway. Susan's completely naked body wasfound on top of a white comforter. Her ankles weretied together with a belt, several layers of maskingtape and clothesline rope. Her wrists were also boundtogether with a belt. Two belts secured her boundwrists to her ankles. Around her neck was a garroteformed by using a necktie and a black sash, which waswrapped around her neck several times. Her hair wastangled in the knot. Noticing that a dresser drawercontaining belts and neckties had been pulled open,of f icers believed that the items used to bind andstrangle Susan came from inside the home. Her eyeswere covered with masking tape that appeared to havebeen placed over her eyes in a frantic hurry. Underthe comforter upon which the body rested were severalitems which appeared to have been emptied from herpurse. Also under the comforter was her night shirt;the buttons had been torn off with such force that thebutton shanks had been separated from the buttonsthemselves. Near the night shirt were her pantieswhich had been cut along each side in the hip areawith a sharp instrument.Within the master bedroom, the investigators alsofound a .22 caliber shell casing, and somewhat later ahole in a bedroom curtain was noticed. Also in thatbedroom, the officers found an address book with somepages partially torn out.The sliding glass door in the bedroom was openand a box fan was operating. There had been a heavyrain storm the night before and the heat and humiditywere quickly rising. As a result of these conditions,Susan' sbodywascove re dwithmois ture .Theinvestigators used a luma light to uncover whatpresumptively appeared to be seminal stains on Susan' spubic area, her buttocks, and the inside .of ed what appeared to be semen from Susan's ins also appeared on the fitted sheet. Within closeproximity to one of the seminal stains on the fittedsheet, a stain which appeared to be dried feces waslocated. It was also noticed that Susan had fecalmatter in her buttocks area. Ultimately, the officerstook the comforter, fitted sheet, and mattress padinto evidence .2
The investigation next proceeded to a sparebedroom, which was then being renovated for use as anursery for the baby. The sliding glass door in thatroom was also open. A ladder was found propped e rope was hanging from the balcony ceiling,and outside the home,the phone wires had beenrecently cut with a sharp instrument.Themedicalexaminer' stestimonyattrialestablished multiple factors.As to Michael,theautopsy revealed that he suffered a severe blow to theback ofthe head.Theexternalexamination ofMichael's neck revealed several bruises particularlyaround the larynx, along with ligature marks whichindicated that the device used to strangle Michael hadbeen wrapped around his neck several times,[FN1] andthat pressure was applied from behind. The internalexamination of Michael's neck confirmed that hislarynx, as well as the hyoid bone and epiglottis, hadbeen fractured.There was also bruising and aninternal contusion indicative of a heavy blow to theback of the neck. The internal examination of the d at the fifth cervical vertebrae. There e of a severe blow to the area. Additionally,Michael had significant bruising in his abdominal areacausing a contusion fairly deep within the abdomen.The doctor testified that the injury could have beeninflicted by a strong kick to the area. Based on hisobservations, the doctor opined that the cause ofdeath wasasphyxiation by ligaturestrangulation(rope). He added that Michael could have been renderedunconscious ten to fifteen seconds after the ligaturewas applied, or that it could have taken longerdepending on the pressure applied.FN1 The doctor testified that the ligature markswere indicative of "a rope wrapped around fourtimes or wrapped around twice and reapplied onceor wrapped around once and reapplied four times."With respect to Susan, the external examinationof her face revealed that she had received severalslight abrasions. The ligature marks around her neckindicated that she was moving against the ligature,thereby causing friction. Also, the discoloration in3
her face indicated that blood was not exiting the headarea as fast as it was entering. According to themedical examiner, this is indicative of an incompleteapplication of the ligature, which demonstrated that,more likely than not, a longer period of time passedbefore Susan lost consciousness once the ligature wasapplied. Her wrists also exhibited ligature marks andher hands were clenched. Moving down to her lowerbody, an abrasion to her vulva and several abrasionsto her legs indicative of a struggle were found. Themedical examiner concluded, based on the totality ofthecircumstances,thatshehadbeensexuallybattered. When interrogated for an explanation of thepresence of feces in the rectal area, the doctordetermined that it could have happened either at thetime of death or it could have been caused by herfear.The medical examiner determined that Susan wasapproximately eight months pregnant at the time andproceeded to examine the fetus. The doctor determinedthat the baby would have been viable had he been born,and that he lived approximately thirty minutes afterhis mother died. The doctor testified that there wasevidence that he tried to breathe on his own.Dr. Pope, the serologist, examined the beddingand made cuttings in accordance with the markings hehad made at the scene. One of the stains from thefitted sheet and another stain from the mattress padtested positive for sperm. The cuttings were latersent to FDLE for DNA testing. [FN2] Examination of theswabs from Susan's body failed to reveal the presenceof sperm cells . [FN3]FN2CuttingswerenotsenttotheFDLEimmediately after Dr. Pope detected the presenceof sperm cells because at that time (i.e., 199192), the FDLE had recently begun the process ofDNA testing and their protocol did not allow fortesting in cases where there was not a suspect.FN3 The doctor provided the following explanationas to why the luma light indicated the presenceof presumptive seminal f luid and why no spermcells were found on the swabs: "The body isforever degrading and the most important thingthat we're looking for in seminal fluid itself isthe sperm cells, and remember, I told-I mentioned4
that the body itself was moist and it already wasexudingaliquid .You' reinahot ,hotenvironment . You' re in a very humid environment .It had been raining off and on all that day. Withthose factors, those things cause the seminalfluid to basically decompose or degrade rapidlyand so it was really not a big surprise when Igot to this stage that there was no sperm." Asimilar explanation was provided by the forensicserologist from the FDLE.The discovery of this death scene produced ge focused on the murders.Over the estigated several potential suspects. Through thisinvestigatory process,ThomasOverton' sname wasbrought up during a brain-storming session in May1992. The reason he was considered a suspect wasbecause he was a known "cat burglar, " whom policesuspected in the murder of 20 year old RachelleSurrett. [FN4] At the time of the MacIvor murders,Overton worked at the Amoco gas station which was onlya couple of minutes away from the MacIvor home. JanetKerns, Susan's friend and fellow teacher, had beenwith Susan on several occasions when Susan pumped gasat that Amoco station. No further investigation wasundertaken with respect to Overton at that time.FN4 Overton was never arrested in connection withthe Surrett murder.In June of 1993, the cuttings from the beddingwere sent to the FDLE lab in Jacksonville where JamesPollock,an expert in forensic serology and DNAidentification, proceeded to examine the cuttings.Through a process known as restriction fragment lengthpolymorphism ("RFLP") , Dr. Pollock was able to developa DNA profile from two of the cuttings (i.e., onecutting from the fitted sheet and another from themattress pad). Specifically, the profile was developedby examining the DNA at five different locations,known as loci, within the chromosomes. Dr. Pollockcompared the profile to samples from several potentialsuspects. No match was made at that time.In late 1996, Overton, then under surveillance,was arrested during a burglary in progress. Once incustody, officers asked him to provide a blood sample,5
which Overton refused.Days later,Overton askedcorrection officers for a razor, and one was provided.Overton removed the blade from the plastic razor usinga wire from a ceiling vent, and made two cuts into histhroat.[FNS] The towel that was pressed against histhroat to stop the bleeding was turned over inary testing conducted on the blood from thetowels, police obtained a court order to withdraw thedefendant's blood for testing.FN5 Police were not sure whether Overtonattempting to commit suicide, or whether thisa ploy to attempt an escape-something hetried previously several years earlier whileanother institution.waswashadatIn November of 1996, over five years after themurders, Dr. Pollock was able to compare the profileextracted from the stains in the bedding to a profiledeveloped after extracting DNA from Overton's , [FN6] there was an exact match at each locus. Dr.Pollock testified that the probability of finding anunrelated individual having the same profile was,conservatively,in excess of one in six billionCaucasians, African Americans and Hispanics.FN6 Dr. Pollock testified that since he hadinitially conducted the DNA extraction process ln1993 (when lab only had capabilities to examinefive loci), the FDLE lab had been able to examineone additional locus by 1996.In 1998, the cuttings from the bedding weresubmitted to yet another lab, the Bode TechnologyGroup ("Bode"). Dr. Robert Bever, the director at theBode lab,testified as to the tests which s. The Bode lab conducted a different DNAtest, known as short tandem repeat testing ("STR") ,from that performed by the FDLE. Overton's DNA andthat extracted from a stain at the scene matched atall twelve loci. These results were confirmed by asecond analyst and a computer comparison analysis.Asked to describe the significance of the Bode labfindings, Dr. Bever testified that the likelihood off inding another individual whose DNA prof ile wouldmatch at twelve loci was 1 in 4 trillion Caucasians, 16
in 26 quadrilliontrillion Hispanics.AfricanAmericansand1in15In addition to the presentation of the DNAevidence, the State presented the testimony of twowitnesses formerly incarcerated in the same facilitywith Overton. The first was William Guy Green, whotestified that Overton had admitted to him thatOverton had "done a burglary at a real exclusive,wealthy, wealthy area down in the Keys . The guy hadhis own airplane and a private airway and he couldland his plane in his front yard." Overton furthertold Green that when he went into the house, he"started fighting with the lady," whom he laterdescribed as a "fat bitch, " and that "she jumped onhis back and he had to waste-waste somebody in theKeys." Green also testified that Overton stated thathe had struggled with another person inside the house.Green further testified that Overton spoke to himabout specific action he would take when he committedburglaries. Among these precautions were the cuttingof phone lines before going into the house to stopvictims from calling out or to stop automatic alarmsystems; he would always wear gloves, and he wouldbring with him a "kit," consisting in part of a gun,knife, gloves and disguises. Green also testified thatOverton told him that the "best time" to commit aburglary would be during a power outage or severestorm.Thesecondinformanttotestify wasJamesZientek, who met Overton at the Monroe County Jail inMay 1997. Overton, who believed that Zientek was ahardened criminal from New York, sought Zientek'sassistance to carry out a plan that would verton planned to give Zientek significant details ofthe MacIvor murders, and then have Zientek contactauthorities and inform them that another inmate by thename of Ace had provided such details . Using Overton' slogic, this would create reasonable doubt and he wouldbe found not guilty. Therefore, during the course ofseveral months, according to Zientek, Overton gaveZientek precise details of what occurred in theMacIvor home on the night the couple was murdered.Overton also showed Zientek pictures related to thecrimes, which Overton had obtained to assist hisattorneys in preparing his defense.Specifically,7
Overton told Zientek that he had met Susan at theAmoco gas station where he worked. Overton believedthat he had a "hot and cold type relationship" withSusan; some days she was polite to him and others shewas "cold and bitchy." There came a point when Susanstopped coming to the gas station. However, accordingto Zientek, Overton retrieved Susan's address fromeither a check or a credit card receipt. Zientektestified that Overton informed him that he hadsurveilled the house on several occasions . On tion work at the lower level of the house.Another time, he said he had intended to enter thehome,but did not because he realized that theMacIvors had company.Turning to the events on the night of August 21,1991, Overton told Zientek that he went to the homecarrying a bag, which contained, among other things, apolice scanner. He described his attire as being aNinja-type suit, consisting of a mask, black militarystyle fatigues and gloves. One of the first thingsOverton completed when he arrived was the cutting ofphone wires. He then positioned a ladder against thebalcony that surrounded the house, but in the processof moving the ladder, he made a noise. A light in thehouse came on which caused him to wait outside forapproximately twenty minutes before ascending theladder. Once he reached the balcony, Overton cut someclothesline, "popped" the sliding glass door to thespare bedroom and gained entry into the home . Hewalked around the house and saw the MacIvors sleepingin their bedroom. He proceeded to walk throughout thehouse, but suddenly he heard a noise and observedMichael walking over to the kitchen and opening therefrigerator. Overton said he panicked and that hisadrenaline started rushing. Michael started lookingaround as if he sensed that something was wrong.Michael walked out of the kitchen and through the hed Michael from behind and "slammed him in theback of the head" with a pipe he had found at thehouse. Zientek testified that "the blow to the headwith the pipe didn' t immediately knock him out . Therewas a struggle and Mr. Overton knocked him out withhis fist." While Overton was attempting to restrainMichael, Susan ran out of the bedroom screaming. He8
chased her back into the bedroom and temporarilyrestrained her, using articles he found inside thebedroom to bind her. Overton tried to calm Susan bystating that as long as everyone cooperated no onewould get hurt. However, Susan began to plead withhim, inquiring "Why are you doing this to me?" Shetold him that she was married, and began to plead withOverton for her husband's and baby's life. Overtonalso admitted to Zientek that Susan had stated: "Iknow who you are."At that point, Overton became "concerned aboutthe male just being temporarily knocked out . He knewthat he wasn't dead." He then proceeded to place asock over Michael's eyes and covered his face ton did not strangle Michael at that point.Instead, he went back into the master bedroom andraped Susan. When he had completed his attack, Overtonsaid he strangled her because he "doesn' t leave anywitnesses." He also stated that either in the process,or after completing the strangulation, Overton noticedmotion in her stomach, placed his hand over it, andfelt the fetus move.Overton then returned to the living room s."Overton then kicked Michaelintheabdominal area and proceeded to strangle him with"some kind of cord." Overton "made it very clear thathe doesn't leave witnesses." Overton also explained toZientek that the reason why he placed a sock overMichael's eyes and tape around his head was because hethought that as he strangled Michael, his eyes wouldbulge out and he would bleed through his nose .Appellant continued to show Zientek photographsfrom the scene. When Zientek saw a picture of a shellcasing and a bullet hole in the curtain, he askedOverton, "Why would they take a picture of that?"Overton replied that the casing and the bullet holehad nothing to do with the crime. Overton furtherstated that he "confuse[d] the crime scene" and rippedpages from the address book in the bedroom because hebelieved it would lead the police to think that theattacker wanted to remove the assailant's name fromthe phone book. Overton also told Zientek that he tookthings "nobody would realize were gone." The only item9
which neitherlawenforcementofficersnorthefamilies were able to accountfor were severalpictures that Susan had taken that weekend of herpregnant stomach. Overton essentially concluded byinforming Zientek that he entered the house with theintent to rape Susan.Zientek also testified that while looking atautopsy photos of one of the victims, he began tovomit. Overton started to laugh and cautioned Zientekto not get the pictures wet. Overton also showedZientek a picture of a small chalkboard in the kitchenwhere one of the victims had written "renew lifeinsurance." Overton laughed and said something to theeffect that, "You don't think they knew what time itwas?"The primary thrust of the defense in the case wascentered upon a theme that law enforcement officers,Detective Visco in particular, had planted Overton'ssemen in the bedding, which was essential to theprosecution.[FN7] The defense theorized that DetectiveVisco obtained the defendant's sperm from Overton'sone-time girlfriend, Lorna Swaybe, transported thesample in a condom, and placed it on the bedding.[FN8]***At the conclusion of the guilt phase proceedings,the jury found Overton guilty of the first-degreemurders of Susan and Michael MacIvor. The jury alsoreturned guilty verdicts as to the charges of killingan unborn child, burglary, and sexual battery.Litigation Relating To Appellant's Initial Rule 3.851Overtonfiledaninitialconviction relief on t filed a secondrelieftherelief as cited in this Court's opinion:10motioninNovemberfollowingclaims2003.for
. . .(I) access to files and records that were inpossession of state agencies were improperly withheldin violation of Florida Rule of Criminal nvestigate/prepare a case and challenge the State'scase due in part to the actions of the trial court andthe State; (III) the State committed Brady[FN3] ive for the failure to present this during thetrial; (IV) the State improperly used James Zientek (ajailhouse informant) as an undisclosed agent of lawenforcement;(V)Overton was prejudiced by preindictment delay; (VI) trial counsel operated under anactual conflict of interest; (VII) an improper juryinstruction with regard to expert testimony was usedduring trial; (VIII) the rule prohibiting attorneysfrom interviewing jurors prevented trial counsel frombeing effective; (IX) the voir dire by trial counselwas improper; (X) the combination of errors preventeda fair trial; (XI) trial counsel was ineffective forthe failure to object to the introduction of timebarred offenses; and (XII) Overton's sentence wasunconstitutional under iled2d536,on545-546Decembermanagement hearing was conducted on March 26,2004,(Fla.30,2007).2003.AThecase2004. On April 4,the trial court rendered its decision granting a hearingon several claims. The evidentiary hearing commenced on November15,2004 and ended on November 18,2004. On February 14,2005,the trial court rendered a forty-three page order denying allrelief. This Court affirmed the denial of post-conviction reliefin an opinion issued on November 29,at 566.112007. Overton,976 So.2d
Litigation On The Successive Motion For Post-Conviction ReliefDefendant filed hisrelief on June 20,2006.successive motion for post-convictionThe motion sat idle for five years,until the motion was discovered and presented to the trial courtby an assistant state attorney.The post-conviction court,Honorable Mark Jones, who was also the trial judge,theentered anorder on October 5, 2011, requiring the State to file a responseto the motion.25,(V2,201) . The State filed its answer on October2011. The case management hearing was held on November 28,2011.(V6, n from collateral counselwhichthemotionsatidle.thefor theTheStateStat
investigators used a luma light to uncover what presumptively appeared to be seminal stains on Susan' s pubic area, her buttocks, and the inside .of her thighs. The serologist later testified that he collected what appeared to be semen from Susan's body with swab applicators. Three presumptive seminal stains also appeared on the fitted sheet .
