i

PAGE NO.:

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . 13

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ISSUE I . . . . . . . . . . . . . . . . . . . . . . . . . 15

WHETHER THE TRIAL COURT ERRED IN DENYING

KING’S CLAIM THAT THE STATE COMMITTED

FUNDAMENTAL ERROR BY DESTROYING EXCULPATORY

EVIDENCE

ISSUE II . . . . . . . . . . . . . . . . . . . . . . . . 30

WHETHER THE TRIAL COURT ERRED IN DENYING

KING’S CLAIM OF INEFFECTIVE ASSISTANCE OF

TRIAL COUNSEL BASED ON COUNSEL’S ACTIONS WITH

REGARD TO THE VAGINAL WASHINGS

ISSUE III . . . . . . . . . . . . . . . . . . . . . . . . 35

WHETHER THE TRIAL COURT ERRED IN DENYING

KING’S CLAIM OF INEFFECTIVE ASSISTANCE OF

COUNSEL BASED ON COUNSEL’S ALLEGED FAILURE TO

ADEQUATELY QUESTION JURORS

ISSUE IV . . . . . . . . . . . . . . . . . . . . . . . . 38

WHETHER THE TRIAL COURT ERRED IN DENYING

KING’S CLAIM OF ACTUAL INNOCENCE

ISSUE V . . . . . . . . . . . . . . . . . . . . . . . . . 45

WHETHER THE TRIAL COURT ERRED IN DENYING

KING’S CLAIM OF INEFFECTIVE ASSISTANCE OF

COLLATERAL COUNSEL

ii

ISSUE VI . . . . . . . . . . . . . . . . . . . . . . . . 50

WHETHER THE TRIAL COURT ERRED IN DENYING

KING’S CLAIM AS TO THE CONSTITUTIONALITY OF

FLORIDA’S DEATH PENALTY

ISSUE VII . . . . . . . . . . . . . . . . . . . . . . . . 51

WHETHER THE TRIAL COURT ERRED IN DENYING

KING’S CLAIM AS TO THE CONSTITUTIONALITY OF

LETHAL INJECTION IN FLORIDA

ISSUE VIII . . . . . . . . . . . . . . . . . . . . . . . 52

WHETHER THE TRIAL COURT ERRED IN DENYING

KING’S CLAIM OF AN IMPROPER EX PARTE

COMMUNICATION

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 57

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF TYPE SIZE AND STYLE . . . . . . . . . . . . . 58

iii

PAGE NO.:

Apprendi v. New Jersey,

530 U.S. 466 (2000) . . . . . . . . . . . . . . . . . . . . . 50

Arizona v. Youngblood,

488 U.S. 51 (1988) . . . . . . . . . . . . . . . . . 15, 16, 25

Bailey v. Nagle,

172 F.3d 1299 (11th Cir. 1999) . . . . . . . . . 30, 35, 45, 52

Bain v. State,

730 So. 2d 296 (Fla. 2d DCA 1999) . . . . . . . . . . 30, 35, 45

Brown v. Moore,

26 Fla. L. Weekly S742 (Fla. Nov. 1, 2001) . . . . . . . . . 50

Bryan v. State,

753 So. 2d 1244 (Fla.),

cert. dismissed, 528 U.S. 1133 (2000) . . . . . . . . . . . . 51

Buenoano v. State,

708 So. 2d 941 (Fla. 1998) . . . . . . . . . . . . . . . . . 35

California v. Trombetta,

467 U.S. 479 (1984) . . . . . . . . . . . . . . . . . . . . . 16

Coleman v. Thompson,

501 U.S. 722 (1991) . . . . . . . . . . . . . . . . . . . . . 48

Correll v. State,

698 So. 2d 522 (Fla. 1997) . . . . . . . . . . . . . . . 55, 56

Guzman v. State,

721 So. 2d 1155 (Fla. 1998) . . . . . . . . . . . . . . . 15, 38

Herrera v. Collins,

506 U.S. 390 (1993) . . . . . . . . . . . . . . . . . . . . . 41

Hill v. Dugger,

556 So. 2d 1385 (Fla. 1990) . . . . . . . . . . . . . . . . . 34

Holdren v. Legursky,

16 F.3d 57 (4th Cir. 1994) . . . . . . . . . . . . . . . . . 24

iv

In re Joshua,

224 F.3d 1281 (11th Cir. 2000) . . . . . . . . . . . . . . . 50

In re: Medina,

109 F.3d 1556 (11th Cir. 1997) . . . . . . . . . . . . . . . 44

Jones v. State,

591 So. 2d 911 (Fla. 1991) . . . . . . . . . . . . . 28, 31, 56

Keeney v. Tamayo-Reyes,

504 U.S. 1 (1992) . . . . . . . . . . . . . . . . . . . . . . 47

Kelley v. State,

569 So. 2d 754 (Fla. 1990) . . . . . . . . . . . . . . . . . 16

Kennedy v. Herring,

54 F.3d 678 (11th Cir. 1995) . . . . . . . . . . . . . . . . 47

Kight v. State,

784 So. 2d 396 (Fla. 2001) . . . . . . . . . . . . . . . . . 55

King v. Dugger,

555 So. 2d 355 (Fla. 1990) . . . . . . . . . . . . . . . . . . 4

King v. Moore,

196 F.3d 1327 (11th Cir. 1999) . . . . . . . . . . . . . . . . 5

King v. State,

390 So. 2d 315 (Fla. 1980) . . . . . . . . . . . . . . . . . . 1

King v. State,

514 So. 2d 354 (Fla. 1987) . . . . . . . . . . . . . . . . . . 4

King v. State,

597 So. 2d 780 (Fla. 1992) . . . . . . . . . . . . . . . . . . 4

King v. Strickland,

748 F.2d 1462 (11th Cir. 1984), cert.

denied, 471 U.S. 1016 (1985), previous

history, 714 F.2d 1481 (11th Cir. 1983) . . . . . . . . . . . . 2

King v. Strickland,

714 F.2d 1481 (11th Cir. 1983) . . . . . . . . . . . . . . . 49

Lambrix v. State,

698 So. 2d 247 (Fla. 1996) . . . . . . . . . . . 31, 35, 47, 48

v

Mann v. Moore,

794 So. 2d 595 (Fla. 2001) . . . . . . . . . . . . . . . . . 50

McCray v. State,

699 So. 2d 1366 (Fla. 1997) . . . . . . . . . . . . . . . . . 27

Merck v. State,

664 So. 2d 939 (Fla. 1995) . . . . . . . . . . . . . . . . . 16

Mills v. State,

786 So. 2d 532 (Fla.),

cert. denied, 121 S. Ct. 1752 (2001) . . . . . . . . . . . . 50

Murray v. Giarratano,

492 U.S. 1 (1989) . . . . . . . . . . . . . . . . . . . . . . 47

Peede v. State,

748 So. 2d 253 (Fla. 1999) . . . . . . . . . . . . . . . . . 31

Pennsylvania v. Finley,

481 U.S. 551 (1987) . . . . . . . . . . . . . . . . . . . . . 47

Pope v. State,

702 So. 2d 221 (Fla. 1997) . . . . . . . . . . . . . . . 31, 35

Provenzano v. State,

761 So. 2d 1097 (Fla.),

cert. denied, 530 U.S. 1255 (2000) . . . . . . . . . . . . . 51

Robinson v. State,

707 So. 2d 688 (Fla. 1998) . . . . . . . . . . . . . . . . . 36

Rogers v. State,

511 So. 2d 526 (Fla. 1987) . . . . . . . . . . . . . . . . . 24

Rogers v. State,

783 So. 2d 980 (Fla. 2001) . . . . . . . . . . . . . . . . . 55

Sawyer v. Whitley,

505 U.S. 333 (1992) . . . . . . . . . . . . . . . . . . . 41, 43

Schlup v. Delo,

513 U.S. 298 (1995) . . . . . . . . . . . . . . . . . . . . 41-43

Sims v. State,

754 So. 2d 657 (Fla.),

cert. denied, 528 U.S. 1183 (2000) . . . . . . . 30, 35, 45, 51

vi

Sireci v. State,

773 So. 2d 34 (Fla. 2000) . . . . . . . . . . . . . . . . 27, 28

State v. Stewart,

636 So. 2d 16 (Fla. 1994) . . . . . . . . . . . . . . . . . . 31

Stephens v. State,

748 So. 2d 1028 (Fla. 1999) . . . . . . . . . 15, 30, 35, 45, 52

Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . 32

Stuart v. State,

907 P.2d 783 (Idaho 1994) . . . . . . . . . . . . . . . . . . 26

Thomas v. Borg,

159 F.3d 1147 (9th Cir. 1998) . . . . . . . . . . . . . . . . 37

United States v. Boyd,

961 F.2d 434 (3d Cir. 1992) . . . . . . . . . . . . . . . . . 24

United States v. Crouch,

84 F.3d 1497 (5th Cir. 1996) (en banc) . . . . . . . . . . . 25

United States v. Deaner,

1 F.3d 192 (3d Cir. 1993) . . . . . . . . . . . . . . . . . . 23

United States v. Elliott,

83 F.Supp.2d 637 (E.D. Va. 1999) . . . . . . . . . . . . 25, 26

United States v. Valenzuela-Bernal,

458 U.S. 858 (1982) . . . . . . . . . . . . . . . . . . . . . 16

United States v. Vera,

2001 U.S. Dist. LEXIS 9337

(D. Oregon, June 26, 2001) . . . . . . . . . . . . . . . . . 25

West v. State,

790 So. 2d 513 (5th DCA 2001) . . . . . . . . . . . . . . 30, 45

Williams v. State,

777 So. 2d 947 (Fla. 2000) . . . . . . . . . . . . . . . . . 48

Zeigler v. State,

654 So. 2d 1162 (Fla. 1995) . . . . . . . . . . . . . 27, 28, 34

vii

Florida Rule of Criminal Procedure 3.851(e)(2) . .28,30,31,36,52

1

The facts of this case are outlined in this Court’s opinion on

direct appeal, King v. State, 390 So. 2d 315, 316-17 (Fla. 1980):

On March 18, 1976 [sic], the appellant was an

inmate at the Tarpon Springs Community

Correctional Center, a work release facility,

serving a sentence for larceny of a firearm.

On this date a routine bed check was made by

James McDonough, a prison counselor, at about

3:40 a. m. The appellant King was absent from

his room. The counselor began a search of the

building grounds and found the appellant

outside the building. Appellant was wearing

light-colored pants which had the crotch

portion covered with blood. The counselor

directed King back to the office control room

inside the building. When the counselor

turned to get handcuffs, King attacked him

with a knife. A struggle ensued, and the

counselor received several cuts and stab

wounds. King left the office, then returned

and found the counselor talking to his

superior on the phone. He stabbed the

counselor again and cut the telephone cord.

At approximately 4:05 a. m., the police

and fire personnel arrived at the scene of a

fire at a house approximately 1500 feet from

the correctional center. The police officers

discovered the body of Natalie Brady. She had

received two stab wounds, bruises over the

chin, and burns on the leg. An autopsy

revealed other injuries, which included

bruises on the back of the head, hemorrhaging

of the brain, hemorrhaging of the neck, and

broken cartilage in the neck. There was a

ragged tear of the vagina, apparently caused

by the wooden bloodstained knitting needles

which were found at the scene, as well as

evidence of forcible intercourse. Appellant’s

blood type was found in Brady’s vaginal

washings. The medical examiner attributed

Mrs. Brady’s death to multiple causes and

established the time of death as 3:00 a.m.

Arson investigators concluded that the fire

time of these offenses.

2

was intentionally set at approximately 3:00 to

3:30 a.m.

Defendant King was charged by an indictment filed on April 7,

1977, with first degree murder, sexual battery, burglary, and

arson. These charges were ultimately consolidated with charges of

attempted first degree murder and escape that had been previously

filed based on King’s actions at Tarpon Springs Correctional

Center. Following a jury trial before the Honorable John S.

Andrews, Circuit Court Judge, King was convicted as charged and

sentenced to death. After exhausting his state direct and

postconviction appeals, King was awarded a new sentencing

proceeding from federal court based on a finding of ineffective

assistance of counsel during the penalty phase of his trial. King

v. Strickland, 748 F.2d 1462 (11th Cir. 1984), cert. denied, 471

U.S. 1016 (1985), previous history, 714 F.2d 1481 (11th Cir. 1983).

The resentencing proceeding commenced on November 4, 1985,

before the Honorable Philip J. Federico, Circuit Court Judge. The

State presented the testimony of six witnesses: Special Agent

coordinated the investigations of Brady’s murder and the attack on

Officer McDonough; Rosario Canaglioni, former Tarpon Springs police

officer, who was one of the first on the scene at the Brady house

fire; State Fire Marshall arson investigator Joseph Ladika, who

3

discussed the origin of the house fire and the damage caused by it;

Detective Tom Evans of the Pinellas County Sheriff’s Department,

who also discussed the arson investigation; James McDonough, the

Tarpon Springs Correctional Officer that was stabbed by King; and

Dr. Joan Wood, the associate medical examiner.

King presented eight witnesses, and proffered the testimony of

Parole Service Director Harry Dodd. Of the witnesses that

testified, two were relatives (Ada Lee King, sister, and Ira Dean

James, cousin); three were neighbors and friends of King’s (Mayme

Moreland, Johnny Lee Henry, and Robert Lee Henry); and three were

ministers and/or active in the prison ministry program (Rev. Joseph

Ingle, Henry Byron, and Stuart Roberson).

At the conclusion of the re-sentencing, a twelve person jury

unanimously recommended the death penalty. On November 7, 1985,

Judge Federico imposed a sentence of death, finding that five

aggravating circumstances (murder committed by a defendant under

sentence of imprisonment; murder committed by a defendant with

prior violent felony convictions; defendant knowingly created a

great risk of death to many persons; murder committed during a

burglary and sexual battery; and murder committed in an especially

heinous, atrocious, or cruel manner), and no mitigating

circumstances applied.

In his direct appeal, King raised four issues: 1) the

prosecutors’ exercise of peremptory challenges on black prospective

4

jurors; 2) the exclusion of evidence of residual doubt of King’s

guilt; 3) the exclusion of evidence of a discriminatory application

of the death penalty; and 4) the admission of hearsay testimony.

This Court struck reliance on the aggravating factor of great risk

of death to many persons, but affirmed the death sentence. King v.

State, 514 So. 2d 354 (Fla. 1987), cert. denied, 487 U.S. 1241

(1988).

A motion for postconviction relief was filed in the trial

court, and ultimately an evidentiary hearing was held before the

Honorable Susan F. Schaeffer, Circuit Court Judge, on two of the

claims presented in the motion: ineffective assistance of counsel

and inadequate mental health assistance. During the litigation of

this postconviction motion, a state petition for habeas relief was

filed in this Court and denied. King v. Dugger, 555 So. 2d 355

(Fla. 1990). Judge Schaeffer denied the motion for postconviction

relief and this Court affirmed the denial of relief. King v.

State, 597 So. 2d 780 (Fla. 1992).

King initiated federal review of his re-sentencing on October

30, 1992, by filing a petition for writ of habeas corpus in the

District Court, Middle District of Florida, raising sixteen claims.

Relief was denied and on appeal the Eleventh Circuit discussed two

primary issues: whether this Court conducted a proper reweighing or

harmless-error analysis after striking aggravating factors on

appeal, and whether King was entitled to a new sentencing hearing

Florida Supreme Court Case No. 02-1, will be cited by the

designation "R." followed by the applicable volume and page number.

References to the record in the direct appeal from the judgments

and sentences imposed, Florida Supreme Court Case No. 52185, will

be cited by the designation "DA-R." followed by the applicable

volume and page number.

5

due to the prosecution’s exercise of race-based peremptory strikes.

The Eleventh Circuit determined the first issue to be procedurally

barred and rejected the second issue as meritless. King v. Moore,

196 F.3d 1327 (11th Cir. 1999), cert. denied, 531 U.S. 1039 (2000).

On November 19, 2001 Governor Jeb Bush signed a third death

warrant for King and execution is scheduled for January 24, 2002.

Judge Schaeffer held a case management conference on November 21,

deadlines for the warrant litigation. (R. V5/823-824) On November

29, 2001, the court held a hearing on various pending pleadings

involving a pro se motion to vacate which had previously been

filed. (R. V5/829-904) At this hearing, King filed two motions

seeking DNA testing of the vaginal washings from the victim that

had been blood typed prior to trial. (R. V1/44-49) The State

filed a response to the motions on December 3, 2001. (R. V1/57-

193)

The State’s response incorporated several exhibits, including

an internal state attorney report on the status of all of the

physical evidence obtained during the investigation of King’s

crimes. (R. V1/65-85) The report was generated in July, 2001, as

6

part of a directive by Sixth Circuit State Attorney Bernie McCabe

to review the physical evidence in every death penalty case from

that office due to the recent development of procedures to secure

DNA testing in these cases. The report concluded that the vaginal

washings taken from Mrs. Brady at the time of her autopsy had been

"more than likely" destroyed by the medical examiner’s office many

years ago, and at any rate the washings could not be located and

were not available for any further testing. (R. V1/77)

A public records hearing was held on December 10, 2001. King

sought records from six agencies, and testimony was taken with

regard to the status of compliance. Debra Lewis is the records

custodian for the Sixth District Medical Examiner’s Office, and has

been employed there since May, 1999 (R. V6/942). She testified

that she had provided a copy of the relevant portions of the

Florida Administrative Code, which her office follows, in her

public records response to the request for standard operating

procedures for the destruction of specimens (R. V6/928). Lewis

noted that actual body specimens such as blood or urine are kept

for a year; although the office tries to keep such specimens for

two years, space limitations may preclude keeping them for that

long (R. V6/930-931, 943). The histology slides created from body

tissues such as the heart or lungs are kept indefinitely (R.

V6/930). The paraffin blocks which are created and used to make

the histology slides are kept for ten years (R. V6/930). Lewis

7

also noted that the office makes no distinction in capital cases

and would not keep specimens longer unless there was a particular

request in a specific case (R. V6/931).

Lewis testified that, although there are evidence destruction

logs which reflect if a sample has been destroyed, she did not know

if any such logs were used back in 1977 (R. V6/942). However, if

they had existed they would still be in the office, and she had not

seen any logs from that time (R. V6/942). Such logs today are

maintained by the toxicology lab, and Lewis did not think there was

a toxicology lab back in 1977, and she had no reason to believe

that the logs would go back as far as the 1970s (R. V6/943-944).

The washings in this case were not sent to the toxicology lab (R.

V6/946).

Larry Bedore, director of operations for the Sixth District

Medical Examiner’s Office, testified that the office did not have

any policy or procedure on the destruction of specimens other than

following the administrative code (R. V6/932). Bedore joined the

office in 1984, and he noted that procedures had been looser in

1977 than they were in 1984 (R. V6/932). There were no written

evidence procedures in 1977 or 1984, but Bedore was familiar with

the standard practices from those times (R. V6/932-933, 948-949).

The administrative code rule was not in effect in 1977; it was

implemented in 1981, and it codified the standard procedures among

medical examiner offices (R. V6/ 932-933, 952-953). The Sixth

8

District would have followed the same policy in principle before

the code was implemented (R. V6/953). The medical examiner, Dr.

Joan Wood, and her predecessor, Dr. Shiner, provided verbal

policies to control handling of evidence (R. V6/933). Dr. Shiner

died in 1986 and Dr. Wood replaced him as medical examiner (R.

V6/933). Bedore had worked with Dr. Wood for sixteen years, and

knew her procedures very well; he recalled having discussed

evidence control with her at length over the years (R. V6/933,

949). In 1977, his office also performed sexual assault

examinations for the county, and the standard procedure was for Dr.

Wood to look at the vaginal washings under a microscope for the

presence of sperm, and in some cases the washings were given to

Marion Hill to do serology testing for ABO blood types (R. V6/934).

The washings were never sent for further testing; at that time,

blood typing was the "maximum science," because they did not know

about DNA (R. V6/934).

Bedore noted that Dr. Wood handled this case, and that their

records reflect that she took the vaginal washings to All

Children’s Hospital to study them under the microscope, then turned

them over to Hill for the blood testing (R. V6/934). Although

there is no documentation of what happened next, such specimens

were typically in a test tube of fluid taken from the body and

after the tests were completed, the test tube and all of the other

biomedical waste would be discarded by Dr. Wood (R. V6/934-935).

9

Bedore recalled having been contacted by the state attorney’s

investigator recently and advising the investigator that the

medical examiner’s office would not still have this evidence

because 1) Dr. Wood’s routine procedure was to discard the

specimens and 2) the medical examiner’s office did not retain

evidence; anything of a testable nature would be turned over to the

appropriate law enforcement agency (R. V6/937). Bedore clarified

that the only evidence which would be given to law enforcement

would be something subject to further testing; that vaginal washing

were never turned over to law enforcement agencies because all of

the testing was done in-house (R. V6/949).

Bedore also noted that the toxicology testing logs which Lewis

referred to, which would reflect any destruction of evidence, only

began about four or five years ago (R. V6/947). There are no logs

prior to that time (R. V6/947). In addition, specimens such as the

vaginal washings in this case would not have been sent to the

toxicology lab, and therefore would not have been recorded in any

form on a log (R. V6/948).

Debra Lewis also met with the state attorney’s investigator

and presented him with the medical examiner’s entire file on Mrs.

Brady’s death (R. V6/937-938). Nothing in the file offers any

indication that these specimens could still be around or available

(R. V6/938). There is nothing which documents that the specimens

were ever returned to the medical examiner’s office after being

10

analyzed at All Children’s Hospital (R. V6/939). The documentation

reflects that certain items, such as clothing, were turned over to

law enforcement, but there was no documentation regarding the

vaginal washings after the testing at All Children’s Hospital (R.

V6/939). Today, the medical examiner’s office does not take

vaginal washings, they prepare swabs which are sent to the FBI and

then returned directly to law enforcement (R. V6/939).

Bedore and Lewis both stated that they had done everything

they could to confirm that they do not possess any of Mrs. Brady’s

specimens today (R. V6/940). They both also confirmed that this

case had never been treated any differently than any other case in

that office (R. V6/940, 958). Bedore testified that there was

nothing different as far as keeping logs or destroying vaginal

washings in 1977 or 1979 than what was done when he came to the

office in 1984 (R. V6/940).

Counsel for King noted that she had filed additional public

records requests, including a request to the Pinellas County

Sheriff’s Office, because a computer printout from the sheriff’s

office indicated that they had destroyed two pieces of evidence in

1987 and 1988 (R. V6/980). Linda Johansen, counsel for the

sheriff’s office, noted that the evidence receipts in 1977 had been

handwritten, that the office had been through two computer

conversions since that time, and that Lt. Colcord could testify to

explain that the notation of any destruction on the master window

11

in this case was a computer error (R. V6/983). Thereafter, Lt.

Wallace Concord, supervisor of the technical services division of

the Pinellas County Sheriff’s Office, testified about the ACIS

property and evidence report provided to King’s attorneys (R.

V6/987). Reviewing the history of the sheriff’s office computer

systems, Colcord explained that the notation "destroyed" on the

evidence report could be a conversion problem created when

information from the original computer system was transferred to a

new system in April, 1991 (R. V6/988). If the new system did not

recognize a particular code from the old system, there would be an

"invalid" remark as noted on the evidence report (R. V6/993-994).

Colcord noted that the sheriff’s office still possessed the

handwritten evidence receipts from 1977, which had been provided to

King’s attorneys in 1992 and 2001, and that there were no physical

records to support the suggestion that anything was destroyed and

no physical items linked to the codes to identify anything had been

destroyed (R. V6/989, 992, 996). There is nothing in any of the

records from the sheriff’s office which indicates that they ever

possessed the vaginal washings (R. V6/991, 997, 1003).

At the same hearing, Judge Schaeffer entertained King’s

motions to depose Dr. Wood and for DNA testing. Judge Schaeffer

observed for the record that she had several cases where Dr. Wood

is a potential witness, and she had been advised that Dr. Wood is

very ill and not available for depositions (R. V6/959-960). Bedore

12

acknowledged that he had spoken with Wood recently and that she was

quite ill and unavailable (R. V6/960). The court denied the

request to depose Wood, finding that there had been no showing such

discovery was necessary since the same information was available

from Larry Bedore and that, at any rate, Wood was unavailable (R.

V6/1018-1019). The judge was satisfied from the testimony that she

had already heard that the vaginal washings had been destroyed as

a matter of routine (R. V6/1019-1020). The court then denied the

request for DNA testing as moot, finding that the substance sought

to be tested did not exist and had not existed since at least 1979

(R. V6/1022, 1027).

On December 18, 2001, King filed his successive motion to

vacate, request for an evidentiary hearing, and request for a stay

of execution. (R. V3/399-585) The State filed its response on

December 20, 2001, (R. V4/586-617) and a Huff hearing was held on

December 21, 2001. (R. V7/1042-1152) At the Huff hearing, the

parties agreed that, in lieu of an evidentiary hearing, the court

could consider the testimony from the December 10 public records

hearing and the attachments to the motion to vacate and the State’s

response to the request for DNA testing as competent evidence (R.

V7/1053-1054, 1058-1060, 1064-1066).

On January 1, 2002, Judge Schaeffer entered a comprehensive

order denying all relief. (R. V4/618-708) This appeal follows.

13

claim regarding the State’s failure to preserve evidence. The

court’s finding that the vaginal washings were not destroyed in bad

faith is supported by the record, and precludes any relief on this

issue.

ineffective assistance of trial counsel, based on counsel’s actions

regarding the victim’s vaginal washings, as procedurally barred.

In addition, the court’s finding that this claim would be without

merit is supported by the record.

ineffective assistance of counsel claim, based on counsel’s failure

to adequately question jurors, as procedurally barred and legally

insufficient.

actual innocence as meritless. The court applied the correct law

and correctly determined that King could not offer any reliable

evidence of his alleged innocence.

ineffective assistance of collateral counsel as procedurally barred

and without merit.

challenging the constitutionality of Florida’s death penalty

14

statute. The court applied the correct law, which soundly rejects

King’s argument on this issue.

challenging the constitutionality of Florida’s use of lethal

injection as a method of execution. The court applied the correct

law, which soundly rejects King’s argument on this issue.

alleging an ex parte communication between the State and trial

judge John Andrews as procedurally barred and meritless.

15

King’s first issue challenges the trial court’s ruling

rejecting his claim of a due process violation based on the State’s

failure to preserve the vaginal washings from the homicide victim’s

body which had been tested by the medical examiner’s office prior

to trial. The denial of this claim involved the application of

legal principles to the factual findings made below; this Court

must review the factual findings for competent, substantial

evidence, paying great deference to the trial court’s findings, and

review of the legal conclusions is de novo. Stephens v. State, 748

So. 2d 1028 (Fla. 1999); Guzman v. State, 721 So. 2d 1155, 1159

(Fla. 1998).

There is no dispute as to the applicable law on this claim.

In order to establish a due process violation, King must

demonstrate both that the State acted in bad faith in failing to

preserve the evidence, and that the State’s actions have resulted

in substantial, actual prejudice to his case. See, Arizona v.

Youngblood, 488 U.S. 51 (1988). In Youngblood, the United States

Supreme Court explained that a due process claim on these facts

requires a showing of bad faith on the part of the government:

The Due Process Clause of the Fourteenth

16

or bad faith of the State irrelevant when the

State fails to disclose to the defendant

material exculpatory evidence. But we think

the Due Process Clause requires a different

result when we deal with the failure of the

State to preserve evidentiary material of

which no more can be said than that it could

have been subjected to tests, the results of

which might have exonerated the defendant. ...

We therefore hold that unless a criminal

defendant can show bad faith on the part of

the police, failure to preserve potentially

useful evidence does not constitute a denial

of due process of law.

488 U.S. at 57-58. See also Merck v. State, 664 So. 2d 939, 942

(Fla. 1995); Kelley v. State, 569 So. 2d 754, 756 (Fla. 1990).

The element of bad faith requires more than a showing of the

intentional destruction of potentially exculpatory evidence. King

must show that the State was aware of the exculpatory value of the

lost evidence and made a conscious effort to prevent the defense

from securing the evidence. See Youngblood, 488 U.S. at 56 (noting

that the exculpatory nature of the evidence must be apparent to law

enforcement at the time of the destruction); California v.

Trombetta, 467 U.S. 479 (1984); United States v. Valenzuela-Bernal,

458 U.S. 858 (1982). As Judge Schaeffer found, this standard is

not met on the facts of this case.

The lower court denied relief upon a finding that King could

not demonstrate that the vaginal washings were destroyed in bad

faith. King asserts that this finding is contrary to the evidence.

Specifically, the court found as follows:

17

Everyone, the state, the defendant, and this court,

wishes the vaginal washings that were taken from the

victim and analyzed for blood type before the defendant’s

trial in 1977 were still available for DNA testing. When

it was apparent that defendants were going to be able to

request DNA testing under Fla. Stat. § 925.11, which

became effective October 1, 2001, Bernie McCabe, State

Attorney for the Sixth Circuit, had investigators begin

rounding up any evidence that existed which could be

tested for DNA on all death penalty cases, beginning with

the oldest cases. (T. 50-54, Hearing 11/29/01; T. 31-32,

Hearing 12/10/01). Mr. King’s case was one of the oldest

cases in Pinellas County, if not the oldest case, the

crimes having occurred in 1977. Therefore, before Mr.

King filed his motion for DNA testing, Mr. McCabe had

sent all the evidence that existed in defendant’s case

for DNA testing. The vaginal washings were missing when

the state investigator looked for them to have them

tested, and they are still missing today. All items that

could have been tested in this case for DNA had

insufficient fluids for any DNA tests. (See attachment

to the State’s Response to Motion for DNA Testing and to

Motion to Compel Production of Evidence for DNA Testing,

and identical Exhibit 4, attached to defendant’s

Successive Motion to Vacate Judgement and Sentence,

hereinafter called "state’s DNA report"). Thus, there

are no DNA tests that can be done in this case. But, the

state clearly wanted all items in this case, including

vaginal washings, tested for DNA. The state believed

that if any DNA could be found, it would solidify that

Amos Lee King was the person who murdered, and sexually

assaulted Mrs. Brady. The defendant says if the washings

were available to be tested for DNA, they would eliminate

him as the depositor of the semen in Mrs. Brady’s vagina,

and thus effectively exclude him as the murderer.

If the vaginal washings or rectal swabs had been

kept, no one can tell this court that after 24 years

there would have been anything of value to be tested for

DNA. In fact, the attorneys for the defendant conceded

If the vaginal washings and rectal swabs had been kept,

and there was something still remaining after 24 years to

be tested, no one can prove what the results would be.

The state suggests it would produce the defendant’s DNA.

The defendant suggests it would produce the DNA of an

unknown person who raped and murdered Mrs. Brady 24 years

ago.

Where are these vaginal washings (and the rectal

18

swab for whatever value they might be, which is probably

none, since they couldn’t even be tested for blood type

or determined to be evidence for either side at the first

trial)? This court held a hearing on December 10, 2001.

The hearing was to determine all pending motions, and all

public record matters. A complete reading of the

transcript of that hearing shows that in all probability

the washings and swabs were destroyed by the medical

examiner’s office either immediately after being tested

for blood type, or after being kept for a year, perhaps

two. In other words, they were thrown out, as were all

other such specimens taken in all cases during that time

period.

. . .

At the hearing on December 10, 2001, two persons

from the Pinellas County Medical Examiner’s Office, Debra

Lewis, the records custodian, and Larry Bedore, the

director of operations, testified in conjunction with

public records matters, the Motion to Compel DEN Testing,

and the Motion to Compel Production of Evidence for DNA

Testing, and the Motion to take Deposition. Mrs. Lewis

said the M.E.’s Office kept these type specimens for one

year, at the most two. (T. 26-27). Mr. Bedore says in

1977, the procedures were looser than they were after

1981, when Administrative Code 11G came into effect,

after which the M.E.’s Office kept these type specimens

one-two years, but that in 1977, the vaginal washings

were likely destroyed by Dr. Wood after they were tested.

(T. 29-31, 48). While Mr. Bedore does say, as suggested

in defendant’s successive motion, that evidence is turned

over to law enforcement, he makes it clear that the

"evidence" that he is referring to is that which the FBI

or FDLE would be testing, and not vaginal washings, such

as were tested in house in this case. (T. 33, 45). Mr.

Bedore says, in response to Ms. Haughey’s question about

whether Dr. Wood would have turned evidence over to law

enforcement, "Any evidence that was going to be tested by

the forensic laboratory was turned over to the law

enforcement agency, clothing, blood stains on materials.

Vaginal washings were never turned over to law

enforcement agencies because the testing was done inhouse.

We did our own serology in those days. There was

no reason to send it out for a second serology test to

determine ABO blood type. So no, those would not have

been turned over." (T. 45, emphasis mine). There is no

dispute in this case that testing of the vaginal washings

to determine blood type was conducted by Marian Hill, an

employee of the Medical Examiners office, or that Dr.

19

Wood delivered the vaginal washings to be tested, or that

the vaginal washings themselves were not introduced into

evidence in the defendant’s trial, only testimony about

the tests. The reports of the test results are still

available and are part of the state’s DNA report. Mr.

Bedore also makes it clear there would have been no "log"

in existence at the medical examiner’s office at the time

in question to help in telling us exactly when the

washings or swab were destroyed, or by whom. (T. 43-45).

Such a log exists today, but it did not in the 70's. (T.

43-45). In fact, these logs were put into place "only 4

or 5 years ago." (T. 43).

In addition to the testimony of Debra Lewis and

Larry Bedore of the Pinellas County Medical Examiner’s

Office, Lt. Wallace Colcord, supervisor in charge of the

technical services department of the Pinellas County

Sheriff’s Office, and Ms. Linda Johansen, attorney for

the Pinellas County Sheriff’s Office testified at the

December 10 hearing. Lt. Colcord tried to explain why

the Sheriff’s Office records show something was destroyed

in this case on March 25, 1988, and something else on

August 11, 1987. (T. 85-97). Frankly, it is unclear

from this testimony if any evidence in this case actually

was destroyed, or if the records showing something

destroyed are from computer glitches. But one thing is

clear. Lt. Colcord is unequivocal that there is nothing

in any record at the sheriff’s office that the sheriff's

office ever had any vaginal washings connected to this

case. (T. 87). And Ms. Johansen testified that she had

provided CCRC-M the entire archival file, which had

contained all the handwritten notes of every officer who

had received any property from any source. She, too, was

unequivocal that no record in this case shows that the

sheriff’s office ever had any vaginal washings connected

to this case. (T. 98-99). Therefore, if something

connected to this case was, in fact, destroyed in 1987

and 1988, it was not vaginal washings or the rectal

swabs.

This court has read the entire state’s DNA report

and the entire transcript of the December 10, 2001

hearing. After doing so, this court makes the following

findings: 1. That the vaginal washings and the rectal

swabs were destroyed by someone in the medical examiner’s

office, either immediately after they were tested, or

within one to two years after they were taken, as was

customary in all cases where such specimens were obtained

and tested in house, as was done in this case. 2. There

was no knowledge of DNA testing in 1977, 1978, or 1979.

20

3. No one connected to the medical examiner’s office,

the sheriff’s office, or the state attorney’s office

could have known when these specimen’s were obtained or

destroyed that they might someday be scrutinized for DNA,

to either include Mr. King as the secretor in the vaginal

washings, or to exclude him.

. . .

While this may not be pertinent to the claim as

raised, this court feels compelled to point out to the

defendant that if he had not destroyed the pants he had

been wearing on the night of the murder, and the

attempted murder, the blood present on those pants could

have been tested at the time of his trial to see if it

matched the blood type of the victim, Mrs. Brady, as the

state suggested, or the blood type of the victim,

corrections officer James McDonough, as the defense

suggested. The pants the defendant wore on the night of

this homicide, and attempted homicide would have been

introduced into evidence at King’s trial, and would still

be in evidence at the clerk’s office. Today, the blood

on those same pants could be analyzed for DNA, and if it

still existed in sufficient quantity to be tested, Mrs.

Brady’s DNA could be either included or excluded. This

potential evidence was lost to the state and the

defendant, both at trial and now, through the exclusive

actions of the defendant. Since the defendant admitted

to the detectives that he had stabbed James McDonough,

(although he contended it was in self defense) when he

agreed to talk to the detectives in this case after he

turned himself in, and he knew they were seeking his

pants worn the night in question, why did he take them on

a wild goose chase in search of the pants? (R. 1706-

1708, 1752-1762. Please note that all record pages

referred to in this order are attached in sequence as

composite exhibit A). One can only surmise that the

blood type present on the pants was not helpful to the

defendant’s position then or now.

Because the defendant cannot show "bad faith" on the

part of the state for all the reasons noted above, Claim

I must be denied.

(R. V4/625-630).

The court’s findings in this regard are clearly supported by

the evidence presented below. However, King claims that the court

should not have relied upon the testimony of Larry Bedore, as

washings were destroyed by the sheriff’s office in 1987 or 1988,

and that the existence of DNA testing at that time provided the

necessary apparent exculpatory value. However, given the lower

court’s finding that the washings were destroyed by the medical

examiner’s office in 1977-79 and were never provided to the

sheriff’s office, he has modified his claim with regard to the

exculpatory nature of this evidence.

21

Bedore was not employed by the medical examiner’s office in 1977

and therefore he could not provide competent evidence about the

procedures used at that time. He also argues that bad faith is

demonstrated by 1) Dr. Wood’s failure to comply with applicable law

on the preservation of evidence and 2) the written notation on the

lab results that the washings were very bloody and difficult to

read, which allegedly made the "exculpatory" nature of this

As to the criticism of the lower court’s reliance on Bedore’s

testimony, the record reflects that although Bedore did not start

working at the medical examiner’s office until 1984, he was

familiar with the procedures used in 1977, and therefore the court

properly relied on this testimony. Bedore worked with Dr. Wood for

sixteen years, and was familiar with office policy and procedures

prior to the time of his arrival (R. V6/930-931, 948-949). Bedore

testified that he had extensive discussions with Dr. Wood over the

years about evidence control, with Bedore having come from a

background of working at a crime lab (R. V6/931). The basis of

Bedore’s knowledge and the reliability of his testimony as to

procedures in place prior to his employment are factors of

22

credibility for the trial judge, and do not render Bedore’s

testimony legally incompetent.

King’s allegation that bad faith is demonstrated by the

medical examiner’s office’s alleged lack of compliance with Section

406.13, Florida Statutes (1973), is similarly unpersuasive. As

Judge Schaeffer expressly found, that statute was not violated by

the discarding of any evidence in this case:

The defendant cannot show bad faith on the part of

the Pinellas County Medical Examiner’s Office when

someone, presumably Dr. Wood, the Assistant Medical

Examiner at the time, destroyed the washings and swab.

Before 1981, Florida Statue 406.13 (1973) did not even

require the medical examiner’s office to maintain such

specimens for any length of time. It merely provided

that "any evidence or specimen coming into the possession

of said medical examiner in connection with any

delivered to one of the law enforcement officers assigned

to the investigation of the death." F.S. 406.13

(1973)(emphasis mine). It was only when the

Administrative Code was amended in 1981 that the

discretion of the medical examiner" (emphasis mine) was

included. The 1981 Amendment to the Administrative Code

11G-2.004 (1)(h) and (4)(b) (2001); F.S. §406.13 (2001).

Thus, even today, the medical examiner could destroy a

specimen such as a vaginal washing or rectal swab after

one year. In this case, which occurred in 1977, whether

the vaginal washing and swab were destroyed immediately

after they were tested for blood types, or whether they

were retained for one or two years before they were

destroyed, they were not destroyed contrary to any law in

existence, the medical examiner had no reason to believe

the specimen could ever be of any use to exonerate Mr.

King in the future, they were not destroyed contrary to

any existing policy that existed at the Sixth Circuit

Medical Examiner’s Office, and in sum, nothing about the

destruction of either the vaginal washing or the rectal

swabs shows any required bad faith on the part of the

23

medical examiner, and thus, the state. Without a showing

of bad faith, the defendant simply cannot prevail.

(R. V4/629). In addition, the failure to abide by applicable

procedures and regulations does not, in itself, demonstrate the bad

faith necessary to support a due process claim. United States v.

Deaner, 1 F.3d 192, 200 (3d Cir. 1993).

The suggestion that the exculpatory value of this evidence was

apparent from the handwritten notation that the washings were

bloody and difficult to read is also without merit. The court

below specifically found that there was no knowledge of DNA testing

at the time of the destruction and that the medical examiner had no

reason to believe this evidence could ever be used to exonerate

King (R. V4/628-629). Prior to being discarded, the washings had

been properly tested using the "maximum science" available and had

incriminated King. Defense counsel questioned Marian Hill during

deposition prior to trial as to the meaning of her notation and any

possible effect the blood in the washings could have on her

readings (DA-R. V3/535). On these facts, there was no reason for

anyone to believe that this evidence could ever provide exculpatory

information to King in 1977.

Thus, King’s claim fails because the lower court’s finding

that the washings were not discarded in bad faith is well supported

by the record. King has not identified any improper State action

or misconduct committed in bad faith which has prevented him from

investigating and presenting a valid postconviction claim. While

24

he has criticized the State for failing to maintain evidence, he

has not presented any basis for a finding of bad faith as necessary

to establish that a due process violation has occurred. Similar

claims have been rejected on comparable facts. Holdren v.

Legursky, 16 F.3d 57 (4th Cir. 1994) (finding no constitutional

error when government physician treating rape victim discarded

specimens of unknown value); United States v. Boyd, 961 F.2d 434

(3d Cir. 1992) (failure to preserve urine sample that was

previously tested and discarded according to standard procedure did

not violate due process).

Even if King could establish the necessary bad faith in this

case, he cannot prevail because no actual, substantial prejudice

can be discerned. He cannot specify what any further testing of

the vaginal washings could possibly add to any potential

postconviction claim. Thus, he cannot show this evidence to be

necessary or material to any relevant claim. Although counsel for

King is sure to point out that there is no way to determine what

information may have been revealed had this material been

available, this will always be the situation when possible evidence

of unknown value has been lost, and courts have consistently held

that speculative claims of prejudice are insufficient even on these

facts. See Rogers v. State, 511 So. 2d 526, 531 (Fla. 1987)

(defendant’s burden of establishing actual prejudice from preindictment

delay is not met by speculative allegations of faded

25

memories or the disappearance of purported alibi witnesses);

United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir. 1996) (en

banc). The washings were, of course, tested prior to trial, and

King has not identified any potential deficiencies or problems with

that testing or the results obtained. Additionally, although King

asserts that the washings provided the "only" evidence to connect

him with Brady’s murder, there was clearly other strong

circumstantial evidence presented at trial which established King’s

guilt on this offense. Thus, the evidence would not prove or

disprove any material issue in this case.

The cases cited by King do not compel any relief. In United

States v. Elliott, 83 F.Supp.2d 637 (E.D. Va. 1999), the court

specifically found that the sheriff’s office acted in bad faith by

destroying glassware that had been confiscated as having been used

for the manufacture of illegal drugs. Significant to that case was

the fact that residue on the glass was destroyed prior to ever

being subjected to any testing, and the district judge found that

the glassware had apparent exculpatory value at the time of the

destruction. In addition, at least one jurist suggests that

Elliott does not follow the applicable law under Youngblood. See

United States v. Vera, 2001 U.S. Dist. LEXIS 9337 (D. Oregon, June

26, 2001). In the instant case, however, there was no reason to

believe in 1977 that the vaginal washings could be subject to any

further testing, or could provide any exculpatory value.

26

Similarly, in Stuart v. State, 907 P.2d 783 (Idaho 1994), the

necessary bad faith in the State’s destruction of jail telephone

logs was based in part on the fact that the State had concealed the

existence of a tape recording of a telephone call rather than

providing it to the defense in pretrial discovery. In this case,

King’s attorneys were well aware of the existence of the vaginal

washings before trial; under the reasoning of Stuart, the fact that

the State did not conceal the existence of the washings

demonstrates good faith. Neither Elliott, Stuart, nor any other

case cited by King, provides a basis for granting relief on the

facts of this case.

Although the court below denied this claim on its merits,

there are a number of reasons that this issue could have been

denied on procedural grounds. King should be denied relief on the

basis of laches, the doctrine that a criminal defendant’s

unreasonable delay in seeking relief accompanied by resulting

prejudice to the other side (here, the State) warrants refusal or

denial of relief. King has waited some 24 years after the

discovery of the victim’s body to initiate an inquiry when the

defense was on notice at the time of trial that there had been lab

testing conducted on vaginal washings. No action was taken then

and such inaction has continued throughout years of appeals and

postconviction collateral litigation in the state and federal

courts. Now, after the signing of the third warrant of execution

27

by the Governor, King seeks to initiate additional lab examination

on the items; however, the specimens are no longer available.

Clearly, there is no reasonable explanation why such request was

not and could not have been made earlier in prior stages of

litigation. This undue delay results in prejudice to the State

because as noted in McCray v. State, 699 So. 2d 1366, 1368 (Fla.

1997), "As time goes by, records are destroyed, essential evidence

may become tainted or disappear, memories of witnesses fade, and

witnesses may die or be otherwise unavailable."

King asserts that the doctrine of laches should not apply

because his request for DNA testing was timely under the new

statute; however, nothing precluded King from attempting to secure

this evidence for testing years ago. Defendants have sought DNA

testing for years. See Zeigler v. State, 654 So. 2d 1162 (Fla.

1995); Sireci v. State, 773 So. 2d 34, 43 (Fla. 2000). The fact

that his request for testing was timely does not mean his current

due process claim, which clearly could have been discovered years

ago, must now be considered.

Even if the evidence were available, no meritorious claim

could be presented. In Zeigler, a successive motion for

postconviction relief was based, in part, upon a request for DNA

testing. This Court affirmed the trial court’s summary denial of

the request for testing, finding that DNA testing had been

available for years and therefore any DNA claim would be

28

procedurally barred. Further, Zeigler failed to show, given the

other evidence of his guilt, how the DNA evidence would probably

have resulted in a finding of innocence: a requirement for a

successful claim based upon newly discovered evidence. Zeigler,

654 So. 2d at 1164 (citing Jones v. State, 591 So. 2d 911, 915

(Fla. 1991)); Sireci, 773 So. 2d at 43 (finding DNA testing claim

time barred as not filed within two years of the test becoming

available and further, finding that even if conducted, test would

not "probably produce an acquittal on retrial."). Similarly, King

has not reasonably demonstrated how any possible DNA testing in

this case could produce a different result in light of the

substantial evidence of his guilt.

Finally, it must be noted that King’s motion below was

improperly pled, as King failed to comply with the new

postconviction Rule 3.851 in several respects. The most serious

deficiency is King’s failure to offer a sufficient statement to

explain why each of these claims could not have been presented

previously. See Fla.R.Crim.P. 3.851(e)(2)(B). This Court should

insure compliance with the new rule by recognizing that a

consequence of the failure to comply with Rule 3.851(e)(2)(B) will

result in a procedural bar, and expressly deny relief on that basis

in this case.

For all of the foregoing reasons, King’s due process claim was

properly denied below and does not compel the granting of any

29

relief.

30

King next asserts that the court below erred in denying his

claim of ineffective assistance of counsel for failing to

investigate and preserve the vaginal washings taken by the medical

examiner’s office prior to trial, or to move to suppress the

vaginal washings due to their unavailability. The court below

found this claim to be procedurally barred. Whether or not a claim

is procedurally barred is reviewed de novo. Bailey v. Nagle, 172

F.3d 1299, 1302 (11th Cir. 1999) (stating that whether a petitioner

is procedurally barred from raising particular claims is a mixed

question of law and fact that we review de novo); West v. State,

790 So. 2d 513, 514 (5th DCA 2001); Bain v. State, 730 So. 2d 296

(Fla. 2d DCA 1999). If reviewed substantively, claims of

ineffective assistance of counsel are considered de novo. Sims v.

State, 754 So. 2d 657, 670 (Fla. 2000); Stephens v. State, 748 So.

2d 1028 (Fla. 1999).

The lower court’s finding of a procedural bar is correct.

Florida Rule of Criminal Procedure 3.851(e)(2)(B) requires any

successive motion to include "the disposition of all previous

claims raised in postconviction proceedings and the reason or

reasons the claim or claims raised in the present motion were not

raised in the former motion or motions." Although King’s motion

31

asserted that "[f]acts pled in this motion were unknown to previous

counsel and therefore were unable to be pled in former motions,"

this conclusory statement is clearly insufficient to satisfy the

dictates of Rule 3.851. The State respectfully submits that the

failure to comply with this requirement in and of itself compelled

the finding of a procedural bar.

In addition, the court below outlined the extensive litigation

on prior claims of ineffective assistance of counsel at guilt phase

(R. V4/630-631). King is not entitled to raise such claims in a

piecemeal fashion. Pope v. State, 702 So. 2d 221, 223 (Fla. 1997);

Lambrix v. State, 698 So. 2d 247 (Fla. 1996) (stating that

successive claims of ineffective assistance of counsel on different

grounds are not permitted); Jones v. State, 591 So. 2d 911 (Fla.

1991); see also State v. Stewart, 636 So. 2d 16, 17 (Fla. 1994)

(ruling that trial court erred in granting stay and conducting

further proceedings where claims were or should have been made

previously).

King suggests that the procedural bar should be ignored in

this case "in the interest of justice" and consistent with this

Court’s decision in Peede v. State, 748 So. 2d 253 (Fla. 1999).

Peede involved the litigation of an initial postconviction motion,

which this Court remanded for an evidentiary hearing. Peede in no

way suggests that all capital postconviction motions litigated

previously can be reconsidered. Such an interpretation would

32

destroy any possibility of finality in these cases.

Even if this Court were to find that the claim is not barred,

no relief is warranted under Strickland v. Washington, 466 U.S. 668

(1984). In order to establish a claim of ineffective assistance of

counsel under Strickland, a defendant must demonstrate that

counsel’s performance was deficient, and that there was a

reasonable probability that but for the deficient performance, the

outcome of the proceeding would have been different. Here, King

has failed to satisfy either of the two prongs.

The court below noted that no deficient performance was

evident on these facts:

It must also be remembered that no one has suggested

that Mr. King is not blood type A, and a secretor. This

is easy for every attorney who has dealt with Mr. King to

determine. Ask Mr. King! One can only assume the reason

it has never been said that an independent examination of

Mr. King’s blood has revealed anything else is because he

is indeed type A, and a secretor. Blood typing is a

fairly easy procedure. Blood bank employees do it all

the time. This is not like DNA testing which is much

more complicated. Thus, no one can really suggest that

an additional blood type analysis, done by Mr. Cole or

any other lawyer, on the vaginal washings, would have

produced a different result. We must remember that blood

typing was the only science available at the time of Mr.

King’s trial. Thus, it is really unfair to challenge Mr.

Cole’s performance in this regard, when in all

probability, Mr. Cole and all of the defendant’s present

and past counsel knew King was an A secretor, and thus,

the semen in Mrs. Brady could have been deposited by Mr.

King.

As to the suggestion that Mr. Cole should have

developed that the evidence had been destroyed before

trial, that is something that can’t even be determined

today. No one knows if the vaginal washings were

destroyed by the medical examiner before or after the

defendant’s trial. The report of the analysis is

33

included in the state’s DNA report. No one can really

suggest it is wrong, that there was not both O and A

blood type in the washings. Thus, it is doubtful that

Mr. Cole could have shown the requisite "bad faith"

required for relief even if it was destroyed and Mr. Cole

had raised this issue. (See Claim I for the discussion

on "bad faith.")

Finally, Mr. Harrison raised Mr. Cole's failure to

get an independent analysis in defendant’s initial 3.850

motion. (See Claim II G iii, in defendant’s initial

"Motion for Post Conviction Relief", 14-16, attached to

this order as Exhibit B.) The state responded to this

claim in their response. (See state’s Response to Motion

for Post Conviction Relief, p. unknown, but under the

state’s discussion of claim G, attached to this order as

Exhibit C.) At the evidentiary hearing on defendant’s

motion, witness Anthony Rondolino, then Chief Assistant

Public Defender, and co-counsel to Mr. King, now Sixth

Circuit Judge, discussed what this court was trying to

which is that in 1977 there was no law that allowed

confidential experts to be appointed, and there was no

money in the public defender’s budget for this. Thus, if

an expert was appointed, it was as a court’s expert, and

their report was made available to both the court and the

state. Often times this appointment of an expert

backfired, since the results were often the same and all

defense counsel had done was to assist the state in

proving their case. (3.850 Evidentiary Hearing,

11/13/81, 26-27; 49-50, attached to this order as Exhibit

D.) (Note that the quality of Attachments B-F is poor.

This is because they could be located only on microfilm.)

See this court’s discussion of this problem of having to

get a court expert instead of a confidential expert (T.

33-38, Hearing 12/21/01). Mr. Cole should not be judged

by lawyers and judges by standards of what lawyers would

do today, but by what they could or should have done in

1977, the time of Mr. King’s trial. Having been a

criminal practitioner in those days, I am very aware of

the dilemma that would have existed for Mr. Cole to ask

the court for an expert and then have it come back to

haunt him. Had Mr. Cole requested an expert, a serology

expert from the FBI would probably have confirmed that

Mr. King is an A secretor, and that the vaginal washings

contained A and O blood type. How competent or effective

is that!! Then the state could have had an FBI examiner

to provide this damning evidence, instead of a medical

examiner’s employee, Marion Hill, who had never before

34

testified, or been qualified as an expert. (R. 1665).

(R. V4/631-632).

Trial counsel was clearly not deficient for failing to secure

and independently test the vaginal washings. In fact, the record

reflects that counsel explored excluding Hill’s testimony and

questioned the significance of her notation that the washings were

bloody. See Hill v. Dugger, 556 So. 2d 1385, 1388-89 (Fla. 1990)

(affirming trial court’s denial of ineffective assistance of

counsel claim based on defense counsel’s failure to obtain an

independent expert on blood testing). Even if some deficiency

could be presumed, King clearly cannot establish any prejudice.

King speculates that an inconclusive result from an independent

test would have raised a reasonable doubt as to whether a type A

secretor was involved in the rape and murder of Ms. Brady. This

allegation is clearly without merit and based solely on King’s

speculation. In Zeigler v. State, 654 So. 2d 1162, 1164 (Fla.

1995), this Court stated that Zeigler’s "request for DNA typing is

based on mere speculation and he has failed to present a reasonable

hypothesis for how the new evidence would have probably resulted in

a finding of innocence." Likewise, even if King obtained an

independent test which was inconclusive, he is unable to show that

this evidence would have probably produced a different verdict.

Accordingly, no relief is warranted.

35

King’s next claim again asserts that his trial counsel

provided ineffective assistance. The court below found this issue

to be procedurally barred and legally insufficient (R. V4/633).

Whether or not a claim is procedurally barred is reviewed de novo.

Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999); West v.

State 790 So. 2d 513, 514 (5th DCA 2001); Bain v. State, 730 So.2d

296 (Fla. 2d DCA 1999). If reviewed substantively, claims of

ineffective assistance of counsel are considered de novo. Sims v.

State, 754 So. 2d 657, 670 (Fla. 2000); Stephens v. State, 748 So.

2d 1028 (Fla. 1999).

As noted previously, claims of ineffective assistance of

counsel are typically procedurally barred in successive

postconviction motions. Pope, 702 So. 2d at 223; Lambrix, 698 So.

2d at 248; see also Buenoano v. State, 708 So. 2d 941, 952 (Fla.

1998) (successive postconviction claim that juror failed to

disclose criminal conviction during voir dire is procedurally

barred because counsel could have researched and discovered any

irregularities in the jurors’ background within the time limits of

rule 3.850). In addition, the claim that counsel failed to conduct

jury selection in a reasonably professional manner, where based

entirely on the transcript of the trial, is procedurally barred as

36

a direct appeal issue. Robinson v. State, 707 So. 2d 688, 697 n.16

(Fla. 1998) (claim of ineffective assistance of counsel based on

jury selection was procedurally barred). King’s failure to comply

with Rule 3.851(e)(2)(B), requiring a successive motion to state

the reason any claim was not raised previously, demanded the

finding of a procedural bar.

Even if this claim is considered, however, no relief is

warranted. King alleges that juror Demuth gave a misleading answer

during voir dire when asked by the prosecutor "Mrs. Demuth, in

reading your questionnaire, can we assume no one in your immediate

family has ever been involved in the court process?" Mrs. Demuth

responded, "No, sir." (DA-R. V7/1240). King learned of a newspaper

article dated July 6, 1996, in which it is alleged that juror

Demuth said her father was a Chicago policeman. King does not

allege or show that his trial counsel was unaware of this fact, or

that the juror withheld the fact or answered any question

untruthfully. King claims only in general, conclusory language

that defense counsel was ineffective for performing only a

perfunctory voir dire. He neglects to mention that the juror

questionnaires referred to in the questioning of Demuth would have

provided additional information to that of the jurors’ answers

during voir dire; the court below noted that questionnaires have

always elicited this information (R. V4/633). Defense counsel was

probably satisfied to have Demuth, a mother of four children still

37

at home and a substitute elementary teacher, on the panel (DA-R.

V7/1240-1242).

A review of the transcript of the jury selection as a whole

clearly demonstrates that defense counsel acted reasonably as the

advocate required by the Sixth Amendment. In addition, even if

some possible deficiency were contemplated based on King’s current

counsel’s suggestion that he would have done things differently

during voir dire, no prejudice can be discerned in this case.

Given the strength of the State’s evidence against King, no

reasonable juror would have failed to convict him of this murder.

Since the outcome would not have been different even if voir dire

had been conducted as now suggested, no prejudice accrued. See

Thomas v. Borg, 159 F.3d 1147, 1152 (9th Cir. 1998) (in rejecting

claim that counsel was ineffective for failing to establish under

representation of blacks on his jury, court found no prejudice

because evidence was so overwhelming that no reasonable juror,

black or white, would have voted to acquit Thomas). Given the lack

of any explanation as to why this claim was not raised previously,

the speculative nature of King’s second-guessing trial counsel’s

jury selection, the lack of any identifiable bias among the jurors

that convicted him, and the absence of any possible prejudice, this

claim was properly summarily denied.

38

King’s next claim asserts that the trial court should have

granted relief because he is "actually innocent" of his conviction

as well as his death sentence. The denial of this claim was

premised on the trial court’s finding that King had failed to offer

any reliable evidence of his alleged innocence; since this claim

was denied factually, this Court must review the lower court’s

ruling with deference. Guzman v. State, 721 So. 2d 1155, 1159

(Fla. 1998).

The court below rejected this claim, finding:

Claim IV is a claim of "actual innocence" of both

the guilt-innocence phase of Mr. King’s trial, and the

penalty phase. Taking the penalty phase first, two

juries, the second unanimously (we didn’t take penalty

votes in 1977), have recommended that the proper sentence

for this defendant, under the laws of the state of

Florida, is death. Two different trial judges have

sentenced the defendant to death. The Florida Supreme

Court must have believed the death sentence proportional

on each review of the death sentence it has conducted.

What "new evidence" has the defendant shown in his

successive motion to show that a jury’s recommendation,

or a trial judge’s sentence, or the Florida Supreme

Court's required proportionality review in upholding the

defendant's sentence of death would be different if the

"new" evidence could be presented? The answer is "none."

Remember, King did not ask for an evidentiary hearing

where he could present any new evidence, so presumably

there must have been nothing new he could have presented.

In this case, the Florida Supreme Court has upheld

four of the aggravating factors found by Judge Federico.

No amount of "new" evidence can change them. 1. Mr.

King was serving a sentence of imprisonment for the crime

of larceny of a firearm when he committed this murder.

2. Mr. King had previously been convicted of the crime

39

of robbery on two separate occasions, and the

contemporaneous attempted murder of Mr. McDonough, three

prior crimes that involve the use or threat of violence

to the person. 3. Mr. King committed the murder in

question while he was engaged in the crime of burglary to

the victim’s home, and sexual battery. 4. The murder

for which Mr. King is sentenced was heinous, atrocious

Nothing can ever alter those four weighty aggravating

circumstances.

The suggestion seems to be made that if the vaginal

washings were available, which they are not, and if they

could be examined and prove that Mr. King was not the

person who raped Mrs. Brady, which can never be proved

since the washings are not and never will be available

then the jury would have a lingering doubt about Mr.

King’s guilt and would recommend a life sentence.

However, lingering doubt is not a mitigating circumstance

in Florida, and it is this very case that reiterates that

(Fla. 1987). While this court realizes that several

current Justices of the Florida Supreme Court might want

to reverse this law, this is not the case to do so. The

reason is that if a new sentencing hearing were provided,

King has shown nothing he could add to his previous trial

to show lingering doubt, of which the first jury would

have been well aware when they recommended a sentence of

death. King merely speculates on what might be the case

if certain vaginal washings were available to be tested.

Even Mr. King seems to realize that once a jury

decides that Mr. King is guilty beyond a reasonable

doubt, that same jury would recommend a death sentence,

and the judge, following the law, would impose a death

sentence, and the Florida Supreme Court, in performing a

proportionality review, would uphold the death sentence.

Mr. King says "I didn’t want them coming here attacking

Mr. Harrison, he didn’t do this, he didn’t do this in the

penalty phase. I know that this case is too aggravating

to be mitigated under those circumstances." (T. 42,

Hearing 11/29/01). And in response to the court’s

question, "Mr. King, you know exactly what I know, don’t

you. And what you know is that if your case gets past

the guilt phase, the chances of your having much success

with a jury in the penalty phase is not good." The

defendant replies, "I understand. That’s correct." (T.

42, Hearing 11/29/01). Mr. King is simply not "actually

innocent" of the death sentence that has been imposed in

40

this case.

What about his assertion that he is "actually

innocent" of the murder? What "new" evidence do we have

after 24 years? The answer is once again "none." Where

is the new evidence that the defendant says Mr. Cole

should have presented that would show that the knife that

murdered Mrs. Brady and stabbed Mr. McDonough did not

come from Mrs. Brady’s house? Where is the new evidence

that shows that the knife purportedly used on Mrs. Brady

and Mr. McDonough was not made by Case knives, and

similar to other Case knives that Mrs. Brady had in her

kitchen? Where is the new evidence that shows that Mr.

King is not an A secretor? Where is the new evidence

that shows that Mr. King did not stab Mr. McDonough when

he went to handcuff the defendant to find out why he was

out of the center and had a blood soaked crotch? Where

is the new expert witness testimony that shows that Dr.

Wood was incorrect in her testimony that the stab wounds

on Mrs. Brady could have been made by the Case knife that

the defendant admitted having and throwing away as he

escaped from the work release center? Where is the new

evidence that shows the defendant was not missing from

the work release center at the time the

murder/rape/arson/burglary was committed at Mrs. Brady’s

home, which was 1500 feet from the work release center?

Where is the new evidence that shows that the defendant

was not found by Mr. McDonough trying to get back into

the work release center soon after the

murder/rape/arson/burglary was committed, and that he was

sweating, agitated, and had a blood soaked crotch? Where

is the new evidence that shows Mrs. Brady’s vagina was

not punctured with a knitting needle found broken at her

house with blood on it, which would have caused her to

bleed profusely from her vagina, and would have caused

the perpetrator to have a bloody crotch if he had

intercourse with Mr. Brady by merely unzipping his fly?

Where are the defendant’s blood soaked pants so they can

be analyzed to determine if Mrs. Brady’s blood type or

DNA was on them? The answer is that after 24 years there

is still no "new" evidence to show that any of this

evidence, and testimony admitted at Mr. King’s trial is

erroneous or different today. Where is any "new"

evidence of someone saying, "I lied at Mr. King’s trial",

or new testimony saying, "I committed this crime, not Mr.

King?" This is the type of new evidence that must be

shown to get a court to review an "actual innocence"

case, there is no such "new" evidence.

41

says at 324: "A substantial claim that constitutional

error has caused the conviction of an innocent person is

extremely rare", and must be supported by "new reliable

evidence whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical

evidence that was not presented at trial." King has

presented no "exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical

evidence that was not presented at his first trial",

thus, there is no "new reliable evidence" that can give

Mr. King relief on this claim.

The evidence used to convict King at his trial in

1977 may have been circumstantial, but not one shred of

it has changed in 24 years, and he has presented no new

evidence, except his claim on the vaginal washings, which

is sheer speculation as to whether or not if they were

available to be tested, and could be tested, the result

would even be exculpatory. The washings might, as the

state had hoped, have produced the final damning blow to

Mr. King. The only real thing which exists to show

"actual innocence" is Mr. King’s saying it is so, and

this is neither new nor sufficient for relief to be

granted. Claim IV must be denied.

(R. V4/634-639).

King’s claim that he is actually innocent of Mrs. Brady’s

murder fails to offer sufficient allegations of new evidence of

innocence to afford any relief. King asserts that his execution

will violate his constitutional rights because he can allegedly

demonstrate that he is "actually innocent" pursuant to Schlup v.

Delo, 513 U.S. 298 (1995) and Sawyer v. Whitley, 505 U.S. 333

(1992). However, actual innocence is not a substantive claim but

only a gateway to review otherwise barred claims of constitutional

error. See Herrera v. Collins, 506 U.S. 390 (1993).

Even if considered, his claim is without merit. In Schlup,

the United States Supreme Court noted that "a substantial claim

have been favorable to him under the doctrine of spoliation is not

well taken since the washings were not destroyed to keep King from

testing them. Even if it applied, however, this doctrine would

backfire on King, as it would require a presumption that the pants

King was wearing at the time he escaped, bloody by eyewitness

accounts, would have provided incriminating evidence of Brady’s

murder.

42

that constitutional error has caused the conviction of an innocent

person is extremely rare," and must be supported by "new reliable

evidence whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence that was not

presented at trial." 513 U.S. at 324.

King has not identified any "new reliable evidence" to support

his claim; he merely continues his due process argument of Claim I,

speculating that evidence which is no longer available may have

that the long-ago destroyed evidence would have exonerated him.

His exclusive reliance on this unsupportable presumption falls far

short of the showing of actual innocence discussed in Schlup. The

evidence of King’s guilt presented at trial was strong, and

included eyewitness testimony establishing that he was missing from

the Tarpon Springs Correctional Center at the time of Brady’s

murder; that he returned to the center, covered with blood, and

attacked a counselor with the knife taken from the Brady residence;

and that King’s blood type grouping was found in the victim’s

vaginal washings, along with incriminating statements and other

circumstantial evidence of his guilt. None of this evidence is

43

challenged by his claim of actual innocence. Clearly, King cannot

meet his burden of showing that no reasonable juror would have

convicted him of first degree murder in light of his "new

evidence," and he has not established that his conviction is a

miscarriage of justice under Schlup.

King’s characterization of the evidence against him as

"circumstantial" does not establish his innocence. The "actual

innocence" standard is not satisfied upon a showing of reasonable

doubt; it demands evidence of such a nature that no reasonable

juror would have convicted a defendant. Schlup, 513 U.S. at 327.

King has not offered a colorable claim of innocence to permit

consideration of the merits of his other substantive claims.

King has similarly failed to satisfy the test of Sawyer v.

Whitley, 505 U.S. 333 (1992); under this decision, a defendant must

show by clear and convincing evidence that, but for a

constitutional error, no reasonable juror would have found him

eligible for the death penalty. King asserts without explanation

that DNA testing would also have exonerated him of the underlying

aggravating felonies and claims that innocence of the death penalty

is determined by weighing the mitigating evidence against the

factors in aggravation. That is not the test under Sawyer; in

Florida, a defendant is eligible for the death penalty after a

single aggravating factor has been established, and King would need

44

505 U.S. at 347; see In re: Medina, 109 F.3d 1556, 1566 (11th Cir.

1997). Even if reweighing were appropriate, King has not cited any

mitigation which could potentially outweigh the four aggravating

factors repeatedly found, applied, and upheld in this case. King’s

conviction and sentence are not unreasonable in fact or law, and

his bald assertion of actual innocence does not compel any relief.

45

King also asserts that his right to due process has been

violated because his initial postconviction attorney in 1981, Baya

Harrison, allegedly provided ineffective assistance of counsel.

The court below found this claim to be procedurally barred and

without merit. Whether or not a claim is procedurally barred is

reviewed de novo. Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir.

1999); West v. State 790 So. 2d 513, 514 (5th DCA 2001); Bain v.

State, 730 So. 2d 296 (Fla. 2d DCA 1999). If reviewed

substantively, claims of ineffective assistance of counsel are

considered de novo. Sims v. State, 754 So. 2d 657, 670 (Fla.

2000); Stephens v. State, 748 So. 2d 1028 (Fla. 1999).

The court’s rejection of this claim below is well reasoned:

Mr. King attacks collateral counsel as filing an

ineffective initial 3.850. How can he really say that?

It was Mr. Harrison’s 3.850 motion that got him relief

from the Eleventh Circuit, and a new sentencing hearing.

that part of Mr. Harrison’s work must have been

effective. It was only part of his work which did not

get Mr. King a new trial that is attacked as being

ineffective collateral counsel.

Mr. Harrison filed a motion to continue the hearing,

stating in his motion that there were things he didn’t

have time to do "within the time constraints imposed by

this Court and the Governor of Florida" (Motion to

Continue, 3, attached as exhibit E). Mr. Harrison then

goes on to list six areas that he couldn’t do, either

because of time or financial constraints. (Exhibit E. 3-

4). This motion was denied by Judge Andrews. (Exhibit

46

D, 4, 137-139). This denial was subject to appellate

review. In fact, Mr. Harrison listed "Denial of motions

filed with the Motion for Post Conviction Relief" as one

judicial act to be reviewed. (Exhibit F). It is barred

from further review at this time.

The Florida Supreme Court reviewed Mr. Harrison’s

took great pains to evaluate all the evidence which Mr.

Harrison had presented to show ineffective counsel at the

714 F.2d 1481, 1485-1489). It concluded that Mr. Cole

was not ineffective at the guilt-innocence state of the

trial. Neither court took exception to the work of Mr.

Harrison. The Florida Supreme Court has been known to

253, fn.5 (Fla. 1999).

But, whether Mr. Harrison was effective or not, his

effectiveness cannot now be challenged some 20 years

after he filed Mr. King’s initial motion. In 1988, King,

through CCR, filed a motion for post conviction relief,

challenging Harrison’s effectiveness at the new penalty

phase granted by the Eleventh Circuit. Any

ineffectiveness of Harrison’s previous work should have

been raised at that time. King is procedurally barred

from raising it now. Even if it could be raised now,

there has been no showing of prejudice that is that the

result of any new trial would be different than it was 24

years ago. This has already been explored in Claim IV

above and will not be repeated here.

(R. V4/637-638).

Once again the lower court’s finding of a procedural bar is

correct. Harrison’s effectiveness was challenged in postconviction

proceedings in 1988, and any questionable aspects of his

performance should have been argued at that time. As previously

noted, claims challenging the adequacy of counsel cannot be raised

piecemeal, and therefore this Court must uphold the finding of a

procedural bar.

Even if considered, this claim does not present any basis for

47

the granting of relief. This Court has squarely rejected the

suggestion that a claim of ineffective assistance of collateral

counsel can offer justification for excusing otherwise applicable

procedural bars. See Lambrix v. State, 698 So. 2d 247 (Fla. 1996).

The opinion in Lambrix is well supported by federal law. There is

clearly no constitutional right to collateral counsel, and

therefore any alleged lack of effective assistance of counsel in

postconviction proceedings does not compel any relief. See Keeney

v. Tamayo-Reyes, 504 U.S. 1 (1992); Murray v. Giarratano, 492 U.S.

1 (1989).

In Pennsylvania v. Finley, 481 U.S. 551 (1987), the United

States Supreme Court expressly refused to apply a due process

requirement of effective counsel to situations where a state has

opted to afford collateral postconviction counsel to indigent

inmates. In doing so, the Court noted that no constitutional right

to appointed counsel exists in state postconviction proceedings.

481 U.S. at 558. In Murray v. Giarratano, 492 U.S. at 7, 10, the

Court confirmed that the holding of Finley is equally applicable in

cases involving defendants sentenced to death. See also Kennedy v.

Herring, 54 F.3d 678, 684 (11th Cir. 1995) (in denying petitioner’s

allegation that insufficient state funding for collateral counsel

constituted "cause" so as to preclude application of a procedural

bar, the court noted "[i]t makes no sense to say that the state

need not provide counsel at all, but that if the state opts to

48

provide counsel, the state must fund counsel adequately or face the

possibility of excusing procedural defaults"). King’s principal

authority to counter these cases is the dissenting opinion in

Coleman v. Thompson, 501 U.S. 722 (1991); however, reliance on this

dissent is misplaced and not persuasive.

King suggests that Lambrix should be revisited in light of

this Court’s decision in Williams v. State, 777 So. 2d 947 (Fla.

2000). Williams did not overrule Lambrix. Rather, Williams is

easily distinguishable. In that case, this Court did not recognize

any claim of ineffective assistance of collateral counsel, but

resolved the issue on due process grounds. Williams had been

denied the opportunity to pursue initial postconviction remedies

because his collateral attorney did not timely invoke the

postconviction process. The total deprivation of collateral review

was a lack of process that could not stand under the Fifth

Amendment. King, on the other hand, has not been deprived of a

forum for collateral review. To the contrary, King has been

provided with years of extensive postconviction review. He filed

an initial postconviction motion in 1981 which was fully litigated

both in the trial court and on appeal in this Court. He presented

guilt and sentencing claims for consideration in federal court,

ultimately succeeding on a claim which earned him a re-sentencing

in 1985. The validity of his re-sentencing proceeding has been

repeatedly upheld in collateral challenges in state and federal

49

courts. He has no basis to claim that he has not been afforded

collateral review of his conviction and sentence.

Finally, even if this claim could be considered, there is no

merit to the suggestion that Harrison’s collateral performance was

deficient. A review of the decisions rejecting Harrison’s claims

of ineffective assistance of guilt phase counsel demonstrates that

counsel’s performance was thoroughly explored. See King v.

Strickland, 714 F.2d 1481 (11th Cir. 1983). Harrison aggressively

attempted to relitigate guilt at King’s re-sentencing and argued

many of the claims now being presented. On these facts, no

deficiency can be discerned and, as the court below found, no

possible prejudice exists since, 24 years later, there is still no

reasonable claim of innocence. No relief is warranted on this

claim.

50

King’s next issue challenges the constitutionality of

Florida’s death sentencing statute. Citing Apprendi v. New Jersey,

530 U.S. 466 (2000), King alleges that Florida’s death penalty

statute is only constitutional if the particular aggravating

factors are charged in the indictment, submitted to the jury, and

proven beyond a reasonable doubt. This is a purely legal claim and

is therefore reviewed de novo.

The court below rejected this claim based on a number of state

and federal decisions consistently rejecting King’s attempted

expansion of Apprendi. This ruling was correct since the claim is

soundly refuted by all relevant case law. As King acknowledges, in

Mills v. State, 786 So. 2d 532, 536-38 (Fla.), cert. denied, 121 S.

Ct. 1752 (2001), this Court held that Apprendi did not apply to

Florida’s capital sentencing scheme. See also Brown v. Moore, 26

Fla. L. Weekly S742 (Fla. Nov. 1, 2001); Mann v. Moore, 794 So. 2d

595 (Fla. 2001). Federal courts have also held that Apprendi is

not retroactive. See In re Joshua, 224 F.3d 1281, 1283 (11th Cir.

2000). The claim is particularly disingenuous in this case, since

King’s death penalty recommendation at his resentencing was in fact

unanimous. Therefore, his argument would not provide any basis for

relief in this case.

51

King also challenges the trial court’s denial of his challenge

to the constitutionality of lethal injection as a method of

execution. This is a purely legal issue which must be reviewed de

novo; however, King is clearly not entitled to relief. This Court

has repeatedly upheld Florida’s lethal injection statute and

procedures against the same Eighth Amendment claims presented

herein. See Provenzano v. State, 761 So. 2d 1097, 1099 (Fla.),

cert. denied, 530 U.S. 1255 (2000); Sims v. State, 754 So. 2d 657,

663-70 (Fla.), cert. denied, 528 U.S. 1183 (2000); Bryan v. State,

753 So. 2d 1244, 1253-55 (Fla.), cert. dismissed, 528 U.S. 1133

(2000). King has not offered any facts which were not known at the

time of these decisions, and has not offered any basis for

reconsideration of this issue. He fails to acknowledge, let alone

distinguish, clear case law contrary to his position. This claim

must be denied.

52

King’s next claim asserts that the trial court erred in

denying his claim of an improper, ex-parte communication between

the State and Judge Andrews during the original trial. The court

below properly found this claim to be procedurally barred and

without merit. Whether or not a claim is procedurally barred is

reviewed de novo. Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir.

1999) (stating that whether a petitioner is procedurally barred

from raising particular claims is a mixed question of law and fact

that we review de novo). If reviewed substantively, his claim of

an ex-parte conversation involves a mixed question of law and fact,

and should be considered de novo. Stephens v. State, 748 So. 2d

1028 (Fla. 1999).

King alleges that the improper conduct involved a conversation

concerning the refusal of some State witnesses to testify while

being videotaped or photographed. Once again, King’s motion failed

to state the reason or reasons this claim was not raised in a prior

motion, as required by Rule 3.851 (e)(2)(B). Accordingly, the

finding of a procedural bar should be upheld.

With regard to this claim, the lower court found:

In his last claim, the defendant alleges the trial

court had an ex-parte communication with the court

regarding the video or still photographing of three

witnesses who had purportedly stated they would refuse to

testify if they were photographed. Two of these men were

53

still in the prison system, and one had been recently

paroled.

While there does not appear to be any conversation

on the record about removing the cameras, or more

probably, not allowing the photographers to use their

equipment when these three men were testifying, there is

record activity of which defense counsel and the

defendant were clearly aware. For example, the first

discussion on the record is on the morning of July 7,

1977, before the trial begins for the day, when Judge

Andrews announces, in the presence of all counsel and the

defendant, "For the media people here this morning, there

will be absolutely no photographs taken of the witnesses

Robert Hudson and Hawkins" (R. 1434). If these two

experienced defense attorneys had not known about this

previously, perhaps from an off the record conversation

from the evening before after the court adjourned for the

night, surely they would have said, "wait a minute, what

gives here?" It should be noted that Mr. Hudson, Mr.

Roberts, and Mr. Hawkins were the next three witnesses

called to testify, the same three regarding who the judge

had just entered his prohibition about photographing on

the record. (R. 1337-1338).

In between the testimony of Mr. Roberts and Mr.

Hawkins, defendant’s attorney objects, as he had done

previously, two days before when the trial started, to

the television and photographic equipment "being in the

courtroom". (R. 1461-1462). Again, later in the

morning, when these three witnesses were finished and

other witnesses had been testifying, where photographing

and video taping was permitted, defendant’s counsel again

objects, and says, in part, "I don’t know what effect it

is going to have on [the jurors]. I have noticed that

the still camera was removed and a certain portion...",

and after the judge interjected something about someone’s

attire, counsel says, "I just think the actions of the

television camera operators standing up and sitting down,

not taking pictures of certain witnesses accentuates the

testimony of certain witnesses..." (R. 1589-1590). On

both occasions Mr. Rondolino objected to the cameras, he

also moved for a mistrial, which was denied. (R. 1462,

1592).

A clear reading of these record pages shows that the

defendant’s lawyers knew the court was excluding the

cameras as to some witnesses and allowing it for others.

It is doubtful there was an ex-parte conversation.

Counsel entered objections and moved for mistrials on the

difference in photographing some witnesses and not

others. This whole issue of cameras in the courtroom,

54

the first time this had happened in the State of Florida,

and the different treatment of certain witnesses was

procedurally barred.

It is apparent that defendant’s attorneys did not

make a specific objection to the exclusion of the cameras

on the three witnesses previously mentioned. It may have

seemed inappropriate to do so when counsel for the

defendant was continually objecting, and trying to make

a record that cameras in general were objectionable, to

ask that they not be turned off for a certain time

period. If Mr. Harrison thought it was ineffective for

the attorneys not to have objected, he could have added

it to his claims of ineffective assistance of counsel.

It was clearly in the record. Again, this issue is

procedurally barred.

If, as Mr. King suggests, there was an ex-parte

communication, it is certainly not newly discovered.

Collateral counsel could have discovered it with due

diligence and raised it in defendant’s initial 3.850

motion. It was in the record for him to see.

Additionally, there was a letter written by the trial

judge, which CCRC-M concedes was in the court file in

January, 1978, and was copied to defendant’s trial

counsel. (T. 68, Hearing 12/21/01). This letter lays

out what happened regarding the photographing of these

three witnesses. Collateral counsel could have read the

record, and when he didn’t see anything specific about

this on the record, he could have asked co-counsel

Rondolino, (Mr. Cole was deceased), how this came about,

and could have learned about ex-parte communication, if

there was any. The fact that this cannot be considered

newly discovered evidence bars review at this time.

Finally, even if this were not to be considered

procedurally barred, for some reason, the defendant must

fail in this claim. To succeed on a newly discovered

evidence claim, he must show prejudice. These witnesses

were fairly minimal in importance as to the murder

charge. They were more important as to the attempted

murder charge. While neither this court no the Florida

Supreme Court will countenance ex-parte communication,

the defendant simply is unable to show that such

communication, if it occurred, prejudiced the jury’s

guilty verdict, or his sentence of death.

Defendant’s Claim VIII must be denied.

(R. V4/641-643).

55

Although defense counsel objected to the cameras coming and

going and was aware that these witnesses were being treated

differently, no objection was lodged on the basis that this was

favorable treatment to the witnesses meant to curry favor, no

suggestion was made that their testimony was inconsistent with

their prior depositions and no suggestion was made that defense

counsel was unaware of the court’s basis for the order to not

photograph the witnesses. The letter from Judge Andrews with its

attachment of letters from the media, wherein references are made

to the State advising the court that these witnesses would not

testify if they were to be photographed (attached to King’s motion

as Exhibit 13) is dated January 17, 1978 and reflects that a copy

of the letter was sent to counsel for King, Tom Cole. This claim

has clearly been available to King for over two decades and the

failure to previously assert it constitutes an abuse of the

process. See Kight v. State, 784 So. 2d 396, 400 (Fla. 2001)

(successive motion will be dismissed if "it fails to allege new or

different grounds for relief" or if the failure "to assert those

grounds in a prior motion constituted an abuse of the procedure").

In addition, even if defense counsel was not fully aware of the

situation at the time of trial, this claim does not qualify as

newly discovered evidence because it could have been discovered

collaterally with due diligence. Correll v. State, 698 So. 2d 522,

524 (Fla. 1997); Rogers v. State, 783 So. 2d 980 (Fla. 2001).

The court below properly found that, even if this claim were

56

reviewed, King could not prevail because he could not demonstrate

any prejudice. To be entitled to relief on a newly discovered

evidence claim, King must show that he has discovered evidence

which is "of such nature that it would probably produce an

acquittal on retrial." Jones v. State, 591 So. 2d 911, 915-16

(Fla. 1991). In this case, the testimony was not crucial to the

State’s case and was merely corroborative of other evidence. The

particular witnesses, Hawkins, Hudson and Roberts, were inmates who

witnessed part of King’s attack against Officer McDonough and their

testimony was consistent with their prior depositions, the physical

evidence and the testimony of Officer McDonough and Charles

Shockley. The court below found these witnesses to be minimal to

the murder charge and determined that any alleged improper

communication could not have affected the verdict or sentence.

There is simply no evidence that the decision to preclude

photographing the witnesses in any way affected the outcome of the

trial. Cf. Correll v. State, 698 So. 2d 522, 524 (Fla. 1997)

(denying relief where blood spatter expert’s exaggeration of her

credentials was merely corroborative of medical examiner’s

testimony).

On these facts, the lower court properly rejected this claim,

and King is not entitled to any relief on this issue.

57

Based on the foregoing arguments and authorities, this Court

must affirm the lower court’s denial of King’s successive motion

for postconviction relief.

Respectfully submitted,

Assistant Attorney General

Florida Bar No. 0503843

Assistant Attorney General

Florida Bar No. 14087

2002 N. Lois Avenue, Suite 700

Tampa, Florida 33607-2366

(813) 801-0600

(813) 356-1292 Facsimile

58

has been furnished by facsimile and U.S. mail to Richard E. Kiley

and April E. Haughey, Assistant Capital Collateral Regional Counsel

- Middle Region, 3801 Corporex Park Drive, Suite 210, Tampa,

Florida, 33619, and the Honorable Susan F. Schaeffer, Circuit

Judge, Sixth Judicial Circuit, 545 First Avenue North, Room 417,

St. Petersburg, Florida 33701, this _______ day of January, 2002.

I HEREBY CERTIFY that the size and style of type used in this

brief is 12-point Courier New, in compliance with Fla. R. App. P.

9.210(a)(2).