IN THE SUPREME COURT OF FLORIDA

STAMPED: DEATH WARRANT COPY

GREGORY MILLS

Appellant

CASE NO. SC01-775

v.

STATE OF FLORIDA

 

 

STATE’S RESPONSE TO MOTION TO RELINQUISH, ETC.

Comes now the State of Florida, and responds as follows to Mills’ "Motion for Relinquishment, for Clarification, and, in the Alternative, for Extension of Time Until April 20, 2001, at 10 AM to File Initial Brief." For the reasons set out below, the motion should be denied in all respects.

  1. Mills’ claim of improper ex parte communication between the State and the first Rule 3.850 judge is based on no more than the existence of an unsigned order in the files of the State Attorney’s Office. That is far too slender a reed upon which to predicate any action at all, especially given that, in this case, unsigned orders were given to counsel on April 17 and April 18, 2001. Despite the hyperbole of Mill’s pleading, he has not shown, by any evidence, however speculative, that the State prepared the "unsigned drafts". Based upon Mills’ pleading, the reasonable conclusion is that the drafts were prepared by Judge Woodson. There is no basis for relinquishment of jurisdiction, or any other relief on this unvarnished claim.
  2. In addition to being factually insufficient, this claim has n legal basis, either. This "claim" is directed to the summary denial of Mills’ first Florida Rule of Criminal Procedure 3.850 motion. However, this court reversed the summary denial and remanded the matter for an evidentiary hearing. This court held:

    3. The governor recently signed Mills’ death warrant, and the trial court summarily denied Mills’ 3.850 motion.

    In that motion Mills claimed that his counsel rendered ineffective assistance by not developing and presenting evidence of his mental impairment and deficiency in an attempt to mitigate his sentence. He now argues that the trial court erred in not holding an evidentiary hearing on this claim. Treating the allegations as true except to the extent rebutted by the record, Harich v. State, 484 So. 2d 1239 (Fla.), cert. Denied, 746 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed. 2d 993 (1986), we find that a hearing on this issue is needed. Therefore, we direct the trial court to hold an evidentiary hearing in regards to counsel’s failure to develop and present evidence that would tend to establish statutory and nonstatutory mental mitigating circumstances. See Gorham v. State, 521 So. 2d 1067 (Fla. 1988); Jones v. State, 446 So. 2d 1059 (Fla. 1984). We further direct that the hearing on this issue be held within sixty days of the filing of this opinion.

    Mills v. Dugger, 559 So. 2d 578, 579 (Fla. 1990). However, with respect to the other claims, this court held:

    Turning to the petition for habeas corpus, we find no relief warranted. Mills includes seven claims in his petition: 1) this court decided wrongly on appeal the issue of Mills not being allowed to impeach his codefendant; 2) the override was improper; 3) appellate counsel was ineffective because Mills should have been resentenced based on Elledge v. State, 346 So. 2d 998 (Fla. 1977); 4) the trial court erred in finding an automatic aggravating factor (felony murder); 5) the trial court erred in allowing gunshot residue test evidence; 6) the trial court impermissibly shifted to Mills the burden of proving life to be the proper penalty; and 7) consideration of victim impact evidence violated Booth v. Maryland 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). Mills raised most of these issues on direct appeal or in his 3.850 motion; others should have been raised, if at all, on appeal. Habeas corpus is not to be used for additional appeals of issues that could have been, should have been, or were raised on appeal or in other postconviction motions. Suarez v. Dugger 527 So. 2d 190 (Fla. 1988); White v. Dugger, 511 So. 2d 554 (Fla. 1987); Blanco v. Wainwright, 507 So. 2d 1377 (Fla. 1987). Claims 1, 2, and 4 through 7 are, therefore, procedurally barred.

    Mills v. Dugger, 559 So 2d at 579. Because the summary denial of Mills’ ineffective assistance of counsel claim was reversed on appeal by this Court, and because this Court found the remaining claims procedurally barred, even assuming that the State did draft the summary denial order, there is no error because that order was set aside by this Court. There simply is no basis for relief. Glock v. Moore, 26 Fla. L. Weekly S9 (Fla. Jan. 5, 2001); Patton v. State, 25 Fla. L. Weekly S749 (Fla. Sept. 28, 2000).

  3. Further, this claim is procedurally barred, because it could and should have been discovered in 1989 through the exercise of due diligence. The documents at issue could have been discovered following this Court’s remand for an evidentiary hearing. Chapter 119 was available at that time, and the documents referred to by Mills could have been discovered then. Glock v. Moore, 26 Fla. L. Weekly S9 (Fla. Jan 5, 2001); Buenoano v. State, 708 So. 2d 941, 947 – 948 (Fla. 1998). In addition to being legally and factually deficient, this "claim" is procedurally barred.
  4. To the extent that Mills asserts that his former counsel would have sought to disqualify the original rule 3.850 trial judge, there is no support for such an assertion, and, in any event, this claim is unavailable to Mills for the reasons set out in paragraphs 1 – 3, above.
  5. To the extant that Mills claims that he has "new evidence" that Ashley was the "real killer", that "evidence" was known to Mills at least as long ago as April 12, 2001. That is prior to the Huff hearing in this case, prior to the filing of the rule 3.850 motion, and prior to the trial court’s denial of rule 3.850 relief. In fact, the investigator to whom the Anderson "statement" was purportedly given was telephoned from the courtroom during the April 17, 2001 hearing. (R51 – 52). Mills had every opportunity to present this in a timely fashion and should not be heard to complain.
  6. Moreover, the "new evidence" at issue here is functionally identical to that in Sims v. State, where this Court held:

    7. We agree with the trial court’s conclusion that Milliken’s testimony is inadmissible because it consists of double hearsay and would not be admitted under any legal grounds.

    ………

    Notwithstanding, Sims argues that the newly discovered evidence would still be admissible as impeachment evidence. See Jones, 709 So. 2d at 521 (noting that once the trial court determines the evidence’s admissibility, it must evaluate the weight of the evidence by determining "whether the evidence goes to the merits of the case, or whether it constitutes impeachment evidence"); McDonald v. Pickens, 544 So. 2d 261, 264 (Fla. 1st DCA 1989). ("[T}here may be cases where newly discovered evidence may warrant a new trial notwithstanding that the evidence goes only to the impeachment of a witness".). Assuming the evidence is admissible for limited impeachment purposes, the next step would be to consider the newly discovered evidence in conjunction with the newly discovered evidence at the prior proceedings and the compare it with the evidence introduced at trial. See Jones, 709 So. 2d at 522. In Lightbourne v. State, 742 So. 2d 238 (Fla, 1999), we explained that "[t]his cumulative analysis must be conducted so that the trial court has a ‘total picture’ when considering the materiality prong of a Brady claim". Id. At 247 – 48(citing Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed. 2d 490 (1995)). However, even if this evidence were admissible for the limited purpose of impeachment we would find any error by trial court to be harmless.

    We initially note that despite the alleged newly discovered evidence presented in the instant appeal, Sims’ present claim is essentially the same claim that the trial court and this Court considered and rejected in Sims’ prior postconviction proceeding and appeal during the fall of 1999. See Sims, 750 So. 2d at 623 – 24. The newly discovered impeachment evidence adds little to the claim. The newly discovered evidence previously presented consists of a document indicating Terry Gayle purchased lock-pullers at or near the time of the murder (1989 postconviction proceeding); statements by Halsell to Jerry Lawrence and Harold Bryan that Sims was not involved in the murder (1999 postconviction proceedings). This prior evidence is now supplemented by statements by Baldree to Joyce Gray that Sims was not involved in the drugstore robbery and murder, which, at most, could be considered light impeachment evidence.

    After considering Sims’ new evidence, we find that none of the evidence introduced to date places Gayles at the scene of the murder or otherwise establishes the probability that Sims would be acquitted. At most, Sims’ "newly discovered evidence" throughout the course of this case could be used to impeach Baldree and Halsell’s trial testimony. It does not affect the testimony by the three eyewitnesses who identified Sims as the perpetrator

    Sims v. State, 754 So. 2d 657, 662 (Fla. 2000). This case is no different from Sims, and the result should be the same.

  7. The Anderson "affidavit" proves nothing more than another statement by Ashley that was held in reserve until an opportune moment arrived. The statement in no way affects the testimony of Sylvester Davis, which was consistent with, but independent of, that of Ashley. (R105 – 108)

WHEREFORE, based upon the foregoing, all requested relief should be denied.

Respectfully submitted, (& signed)

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

KENNETH S. NENNELLEY

ASSISTANT ATTORNEY GENERAL

Florida Bar #0998818

JUDY TAYLOR RUSH

ASSSISTANT ATTORNEY GENERAL

Florida Bar #438847

444 Sesbreeze Blvd. 5th FL

Daytona Beach, FL 32118

(904) 238 – 4990

Fax (904) 226 – 0457

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above Response has been furnished by Facsimile and U.S. Mail to Todd G. Scher, Litigation Director, Capital Collateral Regional Counsel, 101 N. E. Avenue, Suite 400, Ft. Lauderdale, FL 33301, on this 19th day of April, 2001