Kelley v. StateKelley v. State
Bill McCollum, Attorney General, Tallahassee, FL, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appellee.
David Loftis, New York, NY, on behalf of The Innocence Project, Inc., as Amicus Curiae.
PER CURIAM.
William H. Kelley appeals an order of the circuit court denying his motion for postconviction DNA testing under
FACTS AND PROCEDURAL HISTORY
William Kelley was indicted for the October 3, 1966, contract murder of Charles Von Maxcy, a wealthy citrus grower and rancher from Sebring, Florida. Kelley v. State, 486 So.2d 578, 579 (Fla.1986). John Sweet, a real estate broker with ties to Boston‘s criminal underworld, commissioned Kelley and Andrew Von Etter to carry out the murder. Kelley v. Secretary for Dep‘t of Corrections, 377 F.3d 1317, 1324 (11th Cir.2004). Originally, only Sweet was tried for the murder. After Sweet‘s first trial ended in a mistrial, the conviction resulting from his second trial was reversed on appeal. See Kelley v. Singletary, 222 F.Supp.2d 1357, 1358 (S.D.Fla.2002), rev‘d sub nom. Kelley v. Secretary for Dep‘t of Corrections, 377 F.3d 1317 (11th Cir.2004); Sweet v. State, 235 So.2d 40 (Fla. 2d DCA 1970).
At that point, the case file, including the evidence involved, was transmitted to the clerk of the court for maintenance. Kelley, 486 So.2d at 579. The evidence remained there until April of 1976, nine and a half years after the murder, when the State, at the clerk‘s request, moved for an order requesting the court‘s permission to dispose of the evidence. The State‘s motion was granted and the evidence destroyed. Kelley, 377 F.3d at 1325.
The case was dormant until 1981 when Sweet approached law enforcement authorities seeking immunity regarding a separate criminal situation in return for his testimony pertaining to various crimes, including the Von Maxcy murder. Kelley, 486 So.2d at 579-80. It was Sweet‘s testimony upon which Kelley‘s indictment and prosecution were based.
Kelley‘s first trial ended in a mistrial. Upon retrial, he was found guilty of first-degree murder and sentenced to death. Id. Kelley‘s conviction and sentence were affirmed on direct appeal. Id. at 586. Denial of his first postconviction motion was also affirmed on appeal. Kelley v. State, 569 So.2d 754, 762 (Fla.1990). And, on March 12, 1992, this Court denied Kelley‘s petition for writ of habeas corpus. Kelley v. Dugger, 597 So.2d 262 (Fla.1992).
After an unsuccessful attempt to secure relief at the federal level, see Kelley, 377 F.3d at 1369, Kelley filed a motion for postconviction DNA testing of certain physical evidence pursuant to
The State moved to continue the June 6 hearing. At a May 10, 2006, telephonic hearing to address that request, the court sua sponte stated that the June 6 hearing would be a two-day final hearing, including the presentation of witnesses and evidence on the merits of Kelley‘s motion for postconviction DNA testing, specifically whether the DNA evidence still existed. Two days later, the trial court entered two orders. The first denied the State‘s motion for a continuance and cancelled the preliminary hearing. The second order set the case for a full evidentiary hearing on June 6-7, 2006.
In response, Kelley filed an emergency motion requesting that the court reconsider its discovery ruling and continue the final evidentiary hearing until after discovery on the existence of physical evidence could be completed. The trial court denied this motion during a May 26, 2006, telephonic hearing. This Court subsequently denied Kelley‘s petition to review the trial court‘s nonfinal order. Kelley v. State, 933 So.2d 521 (Fla.2006).
At the evidentiary hearing on June 6, 2006, ten witnesses testified. The first nine testified regarding their efforts to locate the evidence Kelley was seeking. These witnesses, after diligent searches, were unable to locate any of the requested items. First, Tina Barber, records custodian for the Highlands County Sheriff‘s Office, was unable to find any evidence in her office relating to Kelley‘s case. She found only a letter stating that older receipts were turned over to the attorneys in Bartow. Cecilia High, supervisor of property and evidence at the Highlands County Sheriff‘s Office, searched the property storage facility but could not find anything. Dr. Marta Coburn, chief medical examiner for Collier County, found nothing. Sheli Wilson, the District 10 medical examiner‘s office manager, and her staff searched but found nothing related to Von Maxcy‘s death. Suzanne Livingston, forensic services director for the Florida Department of Law Enforcement (FDLE), found four disposition forms in the case files indicating that the evidence had been returned to the submitting agency, the Highlands
The final witness was Dr. Martin Tracey, professor of biological studies at Florida International University. He testified as Kelley‘s expert witness in the area of population genetics. Dr. Tracey discussed the ability of DNA testing to identify an individual to nearly a one hundred percent degree of certainty.
On June 29, 2006, following the evidentiary hearing, the trial court entered its order denying Kelley‘s motion for DNA testing pursuant to
ANALYSIS
Kelley raises three issues before this Court. First, Kelley claims that the trial court erred in denying his prehearing discovery request. Second, Kelley claims that he was denied due process due to inadequate notice of the evidentiary hearing. Third, he asserts that the trial court erred in finding that the DNA evidence no longer exists. We address each of these in turn.
A. Denial of Prehearing Discovery
The first issue is whether the trial court abused its discretion in denying Kelley‘s request for prehearing discovery. “On a motion which sets forth good reason, [a postconviction trial] court may allow limited discovery into matters which are relevant and material, and where the discovery is permitted the court may place limitations on the sources and scope.” State v. Lewis, 656 So.2d 1248, 1250 (Fla. 1994) (quoting Davis v. State, 624 So.2d 282, 284 (Fla. 3d DCA 1993)). This standard has been applied to rule 3.853 motions for postconviction DNA testing. See Spaziano v. State, 879 So.2d 51, 54-55 (Fla. 5th DCA 2004).
Kelley claims to have “good reason” for postconviction discovery because the State never accounted for certain evidence “relevant and material” to his case. See Lewis, 656 So.2d at 1250. To determine whether these items still exist, Kelley claims it is necessary to depose prior custodians of this evidence. The trial court found that Kelley met his initial burden under
Indeed, given the evidence presented, it is clear that Kelley‘s motion is no more than a fishing expedition, which is impermissible under
B. Inadequate Notice of Final Evidentiary Hearing
Kelley next argues that he was denied due process because the trial court failed to grant him a continuance or otherwise provide adequate notice that the June 6, 2006, hearing would be the final evidentiary hearing on his rule 3.853 motion. This claim is procedurally barred and without merit.
This claim is procedurally barred because Kelley did not make a due process objection to the trial court. See Anderson v. State, 863 So.2d 169, 181 (Fla.2003); Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla.1987) (“In order to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court.“). Although Kelley moved for an emergency hearing and requested a ninety-day continuance, he did not raise a due process objection.
Further, this claim is without merit. The granting or denying of a continuance is within the sound discretion of the trial court. See, e.g., Geralds v. State, 674 So.2d 96 (Fla.1996). A court‘s ruling will be sustained absent an abuse of discretion—it will be sustained unless no reasonable person would take the view adopted by the trial court. Huff v. State, 569 So.2d 1247 (Fla.1990). In the present case, Kelley has failed to show that no reasonable person would take the position of the trial court in denying his motion to continue. Kelley had ample opportunity to conduct prehearing discovery in the six months between the filing of his
C. The Trial Court‘s Finding that DNA Evidence No Longer Exists
Finally, Kelley claims that the trial court erred in finding that the DNA evidence he seeks no longer exists. We disagree. The trial court‘s finding was supported by competent, substantial evidence. See Stephens v. State, 748 So.2d 1028, 1031 (Fla.1999) (holding that the “competent substantial evidence” standard applies to the trial court‘s factual findings). First, as discussed above, it is undisputed that physical evidence in Sweet‘s case was destroyed
CONCLUSION
For the foregoing reasons, we affirm the circuit court‘s order summarily denying Kelley‘s motion for postconviction DNA testing.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, CANTERO, and BELL, JJ., concur.
QUINCE, J., recused.