OSCAR RAY BOLIN, Jr., Aрpellant, vs. STATE OF FLORIDA, Appellee.
No. SC15-2149
Supreme Court of Florida
[December 17, 2015]
Oscar Ray Bolin, Jr., a prisoner under sentence of death, appeals an order from the Sixth Judicial Circuit denying his successive postconviction motions filed under
BACKGROUND
Oscar Ray Bolin, Jr., is scheduled for execution on January 7, 2016, for the first degree murder of Teri Lynn Matthews. Matthews’ body was discovered on December 5, 1986, near the side of a road in rural Pasco County. Bolin v. State, 869 So. 2d 1196, 1198 (Fla. 2004). Her murder was unsolved until July 1990. Bolin was eventually implicated and convicted and sentenced to death for Matthews’ murder in 1992, but that conviction was overturned by this Court bеcause improper evidence was admitted at trial. State v. Bolin, 650 So. 2d 19, 21 (Fla. 1995) (concluding that trial court erred in finding waiver of spousal privilege based on defendant‘s deposition of ex-wife). On remand, Bolin was convicted and again sentenced to death. This Court overturned that conviction, finding that the trial court abused its discretion in denying Bolin‘s motion for individual voir dire of prospective jurors on the issue of pretrial publicity. Bolin v. State, 736 So. 2d 1160, 1166-67 (Fla. 1999).
The evidence presented at Bolin‘s third trial included:
Matthews‘[1] body was discovered on December 5, 1986, near the side of a road in rural Pasco County. The body was found wrapped in a sheet imprinted with a St. Joseph‘s Hospital logo. The body had multiple heаd injuries, was shoeless, and was wet, although it had not rained recently. The victim‘s car keys were found close to the body. Evidence collected from the scene included nylon pantyhose and a pair of white pants. There was a single set of truck tire tracks leading to the body. The victim‘s car was found the next day by Matthews’ boyfriend, Gary McClelland, who was worried about her disappearance and attempted to trace her steps after she left work the previous day. The victim‘s red Honda was found parked at the Land O’ Lakes Post Office, with its headlights still on. The victim‘s mail was found scattered on the ground, and her purse was found undisturbed on the seat inside her car.
At school the next day, Phillip talked with his friend, Danny Ferns, about what happened the night before and took Danny to where the body had been. Danny testified at trial, to corroborate Phillip‘s account of the murder, that there were blood stains on the ground at the site and that the grass in the area was disturbed. The State presented other corroborating evidence, which included the testimony of Rosie Kahles Neal. At the time of the murder, Neal co-owned with her now-deceased husband Kahles and Kahles, Inc., the business that employed Bolin as a tow truck driver. She testified that the truck Bolin was driving on the night of the murder was not returned that night, and she thought the truck had been stоlen by Bolin because he could not be located and it was the first call he had handled by himself. Neal testified that Bolin was late coming to work the next morning, was wearing the same clothes as he had the day before, and had a foul smell. She further testified that Bolin played with and carried a knife and got excited when the story of the missing girl, Matthews, was reported on the news. Her testimony also corroborated the murder weapon, as she testified that she gave Bolin a “tire buddy” on the night of the murder. The tire buddy was a two-foot-long wooden club, which was drilled out and filled with lead.
The State then offered the perpetuated videotaped testimony of Cheryl Coby, Bolin‘s ex-wife, who had died after the first trial. She had been a severe diabetic, was hospitalized numerous times in 1986, often brought home hospital towels and sheets from St. Joseph‘s Hospital, and identified the sheet that had been wrapped around Matthews’ body as a hospital sheet resembling thе ones she brought home. Cheryl Coby had a post office box at the Land O’ Lakes Post Office, and Bolin picked up her social security checks there when she was in the hospital.
The State also offered DNA testimony indicating that Bolin could have been the source of the semen found in a stain on Matthews’ pants. Federal Bureau of Investigation forensic serology expert John R. Brown testified that he could not eliminate Bolin as the contributor of the semen stain but could eliminate Gary McClelland, Matthews’ boyfriend, as the source of the stain. David Walsh, a molecular biologist, extracted DNA from the stain on the pants and found that he could exclude both the victim and McClelland as the donors of the stain on the pants. Walsh found that five of the six bands of DNA detected in the stain matched five of the six bands from Bolin‘s DNA. Walsh was not able to visualize one band because of the small amount of DNA remaining on the pants. Dr. Christopher Basten, an expert in population genetic frequency, testified that Bolin was 2100 times more likely to be the source of the semen than a random, unrelated person.
Bolin, 869 So. 2d at 1198-99. Bolin was convicted and sentenced to death, which this Court affirmed. Id. at 1198, 1205.
In 2010, this Court upheld the denial of postconviction relief. Bolin v. State, 41 So. 3d 151, 153 (Fla. 2010). Bolin filed a petition for a writ of habeas corpus in the federal district court, claiming “that his trial attorney was ineffective in (1)
On September 26, 2014, Bolin filed his first successive postconviction motion based on newly discovered evidence. Bolin alleged that an Ohio inmate confessed to Matthеws’ murder. The circuit court granted an evidentiary hearing, but the inmate, Steven Kasler, committed suicide before the hearing took place.
On December 9, 2014, Bolin filed a motion for postconviction DNA testing requesting that evidence in his case be compared to Kasler‘s DNA profile. The circuit court summarily denied Bolin‘s motion for DNA testing finding that Bolin failed to establish the availability of Kasler‘s DNA. This Court affirmed the denial of Bolin‘s motion for postconviction DNA testing. Bolin v. State, No. SC15-213, 40 Fla. L. Weekly S516, 2015 WL 5511523 (Fla. Sept. 18, 2015) (Table). Despite the circuit court‘s denial and this court‘s affirmance, DNA testing was ordered and completed August 26, 2015. The results excluded Kasler as a contributor to the samples collected from Matthews, but did not exclude Bolin.
Governor Scott signed Bolin‘s death warrant on October 30, 2015.
Bolin moved for rehearing on November 3, 2015, and subsequently filed his second successive motion for postconviсtion relief. Thereafter, the circuit court issued an order denying both the motion for rehearing and the second successive motion for postconviction relief.
ANALYSIS
In these proceedings, Bolin claims that newly discovered evidence establishes that someone else committed the murder in question and that the State suppressed evidence relating to the crime. Because we find that Bolin has failed to establish that he is entitled to relief, we affirm the circuit court‘s orders denying relief.
Newly Discovered Evidence
Steven Kasler
First, Bolin argues that the circuit court improperly denied his claim that newly discovered evidence in the fоrm of Kasler‘s confession would probably
To obtain a new trial based on newly discovered evidence, Bolin must demonstrate that (1) the evidence was unknown by the trial court, counsel, or himself at the time of trial and that neither he nor counsel could have discovered it by the use of diligence and (2) the evidence is of such a nature that it would probably produce an acquittal on retrial. See Jones v. State (Jones II), 709 So. 2d 512, 521 (Fla. 1998). The second prong is satisfied if the evidence “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So. 2d 309, 315 (Fla. 1996)). If, as here, the defendant is seeking to vacate his sentence, the second prong requires that the evidence would probably produce a lеss severe sentence on retrial. See Jones v. State, 591 So. 2d 911, 915 (Fla. 1991). In determining whether the evidence compels a new trial, the postconviction court must consider all newly discovered evidence that would be admissible and evaluate the weight of both the
In its analysis of this issue, the circuit court relied on Carpenter v. State, 785 So. 2d 1182 (Fla. 2001) (holding that under Florida law, it is the duty of the jury not the trial court to assess the credibility of the in-court witness who is testifying about the out-of-court statement), to determine the admissibility of Kasler‘s confession. In so doing, the court found that “unlike the many specific corroborated facts found in Carpenter, . . . the limited information provided by Kasler, in confessing to the murder of Teri Lynn Matthews, is insufficiently specific and lacks the ‘particularized guarantees of trustworthiness,’ that seem to be required under
The circuit court conducted an evidentiary hearing on August 24, 2015. At the hearing, Crane was contacted but refused to testify. Bolin‘s counsel, Bjorn Brunvard, testified about his September 2014 conference call with Kasler and communication he had with Crane. On cross-examination, Brunvard stated that he recаlled Kasler stating that he would confess to a number of murders in order to avoid going to Angola Prison in Louisiana, where he was due to serve a 99-year to life imprisonment for a kidnapping and robbery in St. Charles, Louisiana. Kasler confessed to approximately 20 murders, including Teri Matthews’ murder, and gave greater detail on some of the other murders.
Kenneth Karnig, who runs a crime memorabilia website, testified that Kasler contacted him in around 2013 by letter and by telephone. Karnig testified that
There was competent, substantial evidence presented at the evidentiary hearing for the circuit court to determine that Kasler‘s confession would not result in a lesser sentence or acquittal for Bolin if it were presented to a jury. Even if Kasler‘s alleged confession would qualify as a statement against interest, and were admissible, the statements contain nothing more specific than what was available in news accounts, on the internet, and the opinions regarding the murder. Coupled with the overwhelming evidence of Bolin‘s guilt, see Bolin, 869 So. 2d at 1198-99, it is unlikely that the alleged confession would probably produce an acquittal for Bolin. The serological testing at trial was a match to Bolin. The more recent DNA testing also did not exclude Bolin as the contributor of the semen stain on the victim‘s pants. Further, evidence connecting Bolin to the crime was provided by his former boss (who testified that Bolin failed to return with the truck and “tire buddy” on his first night out alone, the same night that Matthews was murdered);
Bolin‘s additional arguments raised later regarding this claim were likewise appropriately denied. As noted by the circuit court, Ippolito‘s account of her avoided abduction is not relevant to the Matthews case and does not corroborate any details that would support Kasler‘s involvement in Matthews’ murder. Accordingly, the circuit court properly denied this claim.
Michael Malone
Second, Bolin argues that the circuit court erred in summarily denying his newly discovered evidence claim that Dr. Frederic Whitehurst, a former FBI forensic analyst who testified at an evidentiary hearing in the Stephanie Collins case, would testify that any and all evidence handled by former FBI agent Michael Malone is unreliable. Because Bolin has not established any evidence that would probably produce an acquittal, the circuit court properly denied this claim.
A defendant is entitled to an evidentiary hearing on a postconviction motion unless it is clear from the motion or record that the movant is not entitled to relief or the claim is legally insufficient. See Jackson v. State, 147 So. 3d 469, 485 (Fla. 2014) (citing Valentine v. State, 98 So. 3d 44, 54 (Fla. 2012)). Conclusory
Regarding this claim, in December 2014, the circuit court found that any claims related to Malone‘s alleged tampering or contamination of the evidence in this case were untimely. Additionally, the circuit court denied Bolin‘s claim after finding that the allegation was completely speculative and noting that defense counsel conceded that there was no proof that any contamination occurred.
In the present proceeding, Bolin reasserted the claim by alleging that Dr. Whitehurst could testify to support Bolin‘s assertion regarding Malone‘s involvement. The circuit court again found the claim untimely, stating: “On December 15, [2014], in summarily denying [Bolin‘s] first successive motion, the court, in addition to ruling on the merits of the Malone claim, also agreed with the State that it was untimely.” Additionally, the court noted that no hair or fiber analysis performed by Malone in this case was ever presented to the jury. The Court found that the correspondence Bolin received “merely identifies Malone as having ‘performed laboratory work for the government,’ ” and was therefore unlike the case-specific testimony-discrediting letters at issue in Wyatt v. State, 71 So. 3d 86 (Fla. 2011), and Smith v. State, 75 So. 3d 205 (Fla. 2011). On the
Given Malone‘s limited handling of the serological evidence in this case, that none of the evidence presented to the jury was tested by Malone, and that Malone did not testify in this case, the court does not see how Dr. Whitehurst‘s proposed testimony would be relevant or admissible on retrial. At a retrial, [Bolin] would not be permitted to call Dr. Whitehurst for the sole purpose of attacking the credibility of Malone.
The circuit court did not err in summarily denying Bolin‘s claim. The core of Bolin‘s claim was filed in his first successive motion for postconviction relief on September 26, 2014. There, Bolin alleged that newly discovered evidence of a case-specific letter regarding Michael Malone‘s credibility warranted postconviction relief. The correspondence at issue, an email, stated:
By email dated January 14, 2014 (attached), this Office notified you and attached our correspondence of 9-27-13 with your predecessor as defense counsel in this case, Mr. Norgard, in which we notified him of the 1997 report of the Department of Justice Inspector General that identified work of 13 FBI Laboratory examiners whose work may have failed to meet professional standards. We would like to further inform you that in 1999, the prosecutor advised the 1996 FBI Laboratory Task Force that Malone‘s work had not been material to the verdict in either the Matthew case, the Collins case, or the Holley case. As a result, the analysis conducted by Malone was not later the subject of an Independent Scientific Review. Please do not
hesitate to contact me if you have further questions. Please confirm your receipt of this email.
(emphasis added). Thе circuit court properly summarily denied Bolin‘s claim because, as defense counsel conceded, there was not, in fact, newly discovered evidence of actual contamination. On rehearing, Bolin asserted that there was additional evidence in the form of Dr. Whitehurst‘s testimony in the Collins case, but Dr. Whitehurst‘s testimony is not related to the Matthews case. Whether Malone contaminated evidence in the Collins case is not relevant to the Matthews case because neither case relies on the other as aggravation or collateral crime evidence. Further, as the circuit court correctly noted, Malone did not perform any analysis of evidence that was presented to the jury in the Matthews case. Accordingly, the circuit court properly summarily denied this claim as untimely and without merit.
Brady v. Maryland
Kasler Confession
Third, Bolin claims that the State knowingly suppressed information that Kasler confessed to the murder of Teri Lynn Matthews. Because Bolin has failed to establish the suppression of any material evidence, the court properly denied this claim.
To successfully raise a claim of a violation of Brady v. Maryland, 373 U.S. 83 (1963), Bolin must show that (1) the evidence was favorable to him, either
Below, the circuit court deniеd the claim stating “even if Kasler‘s confession and the limited and readily available details associated with it were admissible at trial; when considered within the context of the entire record, such evidence does not undermine confidence in the verdict.” The court noted that at the evidentiary hearing defense counsel conceded that there was nothing striking within the confession when combined with newspaper accounts and Supreme Court opinions about the case. The court‘s ruling on Bolin‘s reasserted claim in his second successive motion was that it was “successive, insufficiently plead[ed], untimely, and without merit.”
Malone
Fourth, related to the assertion of newly discovered evidence of Michael Malone‘s misconduct, Bolin argues that the State violated Brady by failing to disclose the alleged bad acts of former FBI agent Malone. In its December 2014 order, the circuit court denied this claim finding that Bolin failed to identify what evidence was in the State‘s possession that was favorable to him. The circuit court, citing Trepal v. State, 846 So. 2d 405, 423 (Fla. 2003), noted that the correspondence between the Department of Justice and the State Attorney‘s Office was not admissible and additionally noted that the correspondence had been
Bolin cannot establish any of the prongs required to succeed under Brady. He cannot show that there was material evidence that was suppressed and that the suppression prejudiced him. First, the circuit court cited to the portion of the record that refuted Bolin‘s claim that the evidence was suppressed. Bolin received the correspondence as part of his public records request in 2004—ten years before he filed the instant claim. Second, Bolin‘s counsel conceded that there was no evidence of contаmination in this case because Malone did not testify. Accordingly, Bolin cannot demonstrate any material evidence unknown to him that the State suppressed to his prejudice. Therefore, the circuit court properly denied this claim.
Death Warrant Selection Process
Last, Bolin argues that the unfettered discretion of the Governor to select condemned inmates for execution is unconstitutional. Because this Court has rejected this claim in the past and Bolin does not provide a compelling reason for
The circuit court denied this claim without an evidentiary hearing. First, the court found that this claim was procedurally barred as untimely, specifically rejecting Bolin‘s argument that this claim constitutes newly discovered evidence. Second, the court found that the warrant selection process does not violate the Eighth Amendment. Third, the court found that the warrant selection process does not violate Bolin‘s due process. Last, the court also rejected Bolin‘s claim based on the principle of separation of powers, finding that Bolin‘s аrgument misapplied the doctrine.
The circuit court properly rejected Bolin‘s claim that the Governor‘s discretion to select an inmate for execution is unconstitutional. This Court has previously and repeatedly denied similar claims. See, e.g., Ferguson v. State, 101 So. 3d 362, 366 (Fla. 2012); Gore v. State, 91 So. 3d 769, 779-80 (Fla.) (holding that the Governor‘s unfettered discretion under the Florida Rules of Executive Clemency and separation of powers concerns apply to claims relating to the Governor‘s authority to sign death warrants) cert. denied, 132 S. Ct. 1904 (2012); Valle v. State, 70 So. 3d 530, 551-52 (Fla.) (rejecting a claim that the Governor‘s absolute discretion to sign death warrants renders Florida‘s death penalty structure
Bolin alleges that his claim is distinguishable because his first successive postconviction motion was not final—no rehearing had yet been filed, and accordingly no appeal had been filed—when the Governor signed the death warrant. Thus, Bolin contends that his selection while claims were still pending violates his right to due process. In Abdool v. Bondi, 141 So. 3d 529 (Fla. 2014), this Court reviewed whether section 922.052 violates due process, recognizing that while “no single test . . . applies to determine whether the requirements of procedural due process have been met,” courts must consider the “individualized facts of each case to determinе whether the defendant has been accorded the process which the state and federal constitutions demand.” Id. at 544. In examining the statute, this Court concluded that the Act does not facially violate due process. Id.
In reviewing the circumstances of this case, we conclude that Bolin‘s due process rights have not been violated and his argument fails. Bolin fully presented his claims to the circuit court, and the circuit court held an evidentiary hearing for those claims requiring additional factual development. On appeal, this Court has had ample opportunity to comprehensively reviеw the record and the claims raised.
Conclusion
For the reasons expressed above, we affirm the order of the circuit court denying Bolin‘s successive postconviction motions. No rehearing will be entertained by the Court, and the mandate shаll issue immediately.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and PERRY, JJ., concur. QUINCE, J., recused.
An Appeal from the Circuit Court in and for Pasco County, Stanley Richard Mills, Judge - Case No. 511991CF000521A000W
Jason Jervis Wise and Bjorn Erik Brunvand of Brunvand Wise, P.A., Clearwater, Florida, for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Assistant Attorney General, Tampa, Florida, for Appellee