Thomas Mitchell OVERTON, Appellant,
v.
STATE of Florida, Appellee.
Thomas Mitchell Overton, Appellant,
v.
State of Florida, Appellee.
Thomas Mitchell Overton, Petitioner,
v.
James R. McDonough, etc., Respondent.
Supreme Court of Florida.
*542 Neal A. Dupree, Capital Collateral Regional Counsel, Terri L. Backhus, Special Assistant CCR Counsel, and Christina L. Spudeas, Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for Appellant/Petitioner.
Bill McCollum, Attorney General Tallahassee, Florida, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, FL, for Appellee/Respondent.
PER CURIAM.
Thomas Mitchell Overton seeks review of the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. Overton also appeals the trial court's denial of his second motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853. Finally, Overton petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, ยง 3(b)(1), (9), Fla. Const; Fla. R.Crim. P. 3.853.
FACTUAL AND PROCEDURAL HISTORY
Overton was convicted for the first-degree murders of Susan and Michael MacIvor, for the killing of the MacIvors' unborn child, for sexual battery upon Susan, and for the burglary of the MacIvor home. See Overton v. State,
*543 On August 22, 1991, Susan Michelle MacIvor, age 29, and her husband, Michael MacIvor, age 30, were found murdered in their home in Tavernier Key. . . .
. . . .
Once law enforcement officers arrived, a thorough examination of the house was undertaken. In the living room, where Michael's body was found, investigators noted that his entire head had been taped with masking tape, with the exception of his nose which was partially exposed. . . . The investigators surmised that a struggle had taken place because personal papers were scattered on the floor near a desk, and the couch and coffee table had been moved. . . .
Continuing the search toward the master bedroom, a piece of clothesline rope was found just outside the bedroom doorway. Susan's completely naked body was found on top of a white comforter. Her ankles were tied together with a belt, several layers of masking tape and clothesline rope. Her wrists were also bound together with a belt. Two belts secured her bound wrists to her ankles. Around her neck was a garrote formed by using a necktie and a black sash, which was wrapped around her neck several times. Her hair was tangled in the knot. Noticing that a dresser drawer containing belts and neckties had been pulled open, officers believed that the items used to bind and strangle Susan came from inside the home. . . . Also under the comforter was her night shirt; the buttons had been torn off with such force that the button shanks had been separated from the buttons themselves. Near the night shirt were her panties which had been cut along each side in the hip area with a sharp instrument.
. . . .
The medical examiner determined that Susan was approximately eight months pregnant at the time and proceeded to examine the fetus. The doctor determined that the baby would have been viable had he been born, and that he lived approximately thirty minutes after his mother died. The doctor testified that there was evidence that he tried to breath on his own.
. . . .
The discovery of this death scene produced a large-scale investigation, and comparable media coverage focused on the murders. Over the years following the murders, law enforcement agencies investigated several potential suspects. Through this investigatory process, Thomas Overton's name was brought up during a brain-storming session in May 1992. The reason he was considered a suspect was because he was a known cat burglar, whom police suspected in the murder of 20 year old Rachelle Surrett. At the time of the MacIvor murders, Overton worked at the Amoco gas station which was only a couple of minutes away from the MacIvor home. . . .
In June of 1993, the cuttings from the bedding were sent to the FDLE lab. . . . Through a process known as restriction fragment length polymorphism (RFLP), Dr. Pollock was able to develop a DNA profile from two of the cuttings. . . . Dr. Pollock compared the profile to samples from several potential suspects. No match was made at that time.
In late 1996, Overton, then under surveillance, was arrested during a burglary in progress. Once in custody, officers asked him to provide a blood sample, which Overton refused. Days later, Overton asked correction officers for a razor, and one was provided. Overton removed the blade from the plastic razor using a wire from a ceiling *544 vent, and made two cuts into his throat. The towel that was pressed against his throat to stop the bleeding was turned over to investigators by corrections officers. . . .
In November of 1996, over five years after the murders, Dr. Pollock was able to compare the profile extracted from the stains in the bedding to a profile developed after extracting DNA from Overton's blood. After comparing both profiles at six different loci, there was an exact match at each locus. . . .
In 1998, the cuttings from the bedding were submitted to yet another lab, the Bode Technology Group (Bode). . . . The Bode lab conducted a different DNA test, known as short tandem repeat testing (STR), from that performed by the FDLE. Overton's DNA and that extracted from a stain at the scene matched at all twelve loci.
Id. at 881-84 (footnotes omitted).
After Overton was convicted for the crimes surrounding this incident, the jury recommended the death penalty by a vote of nine to three for the murder of Susan and by a vote of eight to four for the murder of Michael. See id. at 888-89. The trial judge found the following five aggravators with regard to both victims: (1) the murders were heinous, atrocious, and cruel ("HAC"); (2) the murders were committed in a cold, calculated, and premeditated manner; (3) the defendant had a previous conviction for a violent felony (contemporaneous conviction for murder); (4) the murders were committed while Overton was committing a sexual battery and burglary; and (5) the murders were committed for the purpose of avoiding or preventing a lawful arrest. See id. at 889. The trial judge found no statutory mitigating circumstances and two nonstatutory mitigating circumstances.[1] The trial court found that "in weighing the aggravating circumstances against the mitigating circumstances, the scales of life and death tilt unquestionably to the side of death" and imposed the death sentence on Overton for each of the murders. Id. With regard to the other offenses, Overton was given a fifteen-year sentence of imprisonment for the killing of an unborn child, a life imprisonment term for the burglary, and a life imprisonment term for the sexual battery. See id.
On direct appeal, this Court considered the following claims: (1) the trial court erred in denying Overton's challenges for cause with regard to prospective jurors Russell and Heuslein; (2) the trial court erred in not compelling discovery of documents from the Bode Lab relating to the STR DNA tests and in not granting a continuance so that Overton's counsel could review these documents; (3) the trial court erred in not appointing an additional defense expert to rebut the State's evidence relating to the defense theory concerning Nonoxynol[2]; (4) the trial court erred in denying Overton's motion for mistrial after the State made statements during the rebuttal closing argument that Overton had requested only one Nonoxynol *545 test but the State had sought additional testing; (5) the trial court erred in allowing the State to improperly bolster Zientek's testimony through the alleged hearsay testimony of a prison chaplain; (6) the trial court erred in ruling that the State could elicit from Detective Visco the context from which the internal affairs complaint that Overton filed against him arose; (7) the trial court erred in finding the HAC aggravator with regard to the murder of Michael; (8) the trial court erred in not instructing the jury that it should use great caution in relying on the testimony of the informants; and (9) the trial court erred in not considering certain available mitigation that Overton chose not to present. See id. at 889-905. This Court denied all of these claims. See id. at 906. This Court also determined that sufficient evidence existed and the death sentences were proportionate. See id. at 905. Accordingly, this Court affirmed Overton's convictions and death sentences. See id. at 906.
Overton filed an initial rule 3.851 motion for postconviction relief on April 30, 2003. On October 30, 2003, Overton filed an amended motion for postconviction relief, in which he presented the following allegations: (I) access to files and records that were in possession of state agencies were improperly withheld in violation of Florida Rule of Criminal Procedure 3.852; (II) trial counsel failed to adequately investigate/prepare a case and challenge the State's case due in part to the actions of the trial court and the State; (III) the State committed Brady[3] and Giglio[4] violations and trial counsel was ineffective for the failure to present this during the trial; (IV) the State improperly used James Zientek (a jailhouse informant) as an undisclosed agent of law enforcement; (V) Overton was prejudiced by pre-indictment delay; (VI) trial counsel operated under an actual conflict of interest; (VII) an improper jury instruction with regard to expert testimony was used during trial; (VIII) the rule prohibiting attorneys from interviewing jurors prevented trial counsel from being effective; (IX) the voir dire by trial counsel was improper; (X) the combination of errors prevented a fair trial; (XI) trial counsel was ineffective for the failure to object to the introduction of time-barred offenses; and (XII) Overton's sentence was unconstitutional under Ring.[5] On March 26, 2004, a Huff[6] hearing was held. The trial court ordered an evidentiary hearing on Claims II,[7] IV, V, and VI. This Court denied a petition by Overton to delay the evidentiary hearing. On October 8, *546 2004, Overton filed a third amended motion for postconviction relief in which he presented Claim XIII, which alleged that trial counsel was ineffective for the failure to request a Richardson[8] hearing. The trial court denied an evidentiary hearing on Claim XIII. The evidentiary hearing began on November 15, 2004, and continued until November 17, 2004. On February 14, 2005, the trial court issued an order that denied postconviction relief on all of Overton's claims.
Overton also filed a motion for DNA testing on April 4, 2004, which sought the testing of several previously untested items of evidence.[9] On May 17, 2004, the trial court issued an order that denied in part and granted in part the motion for DNA testing. Although the trial court found the motion insufficient, the court granted the motion with regard to the sexual assault kit and fingernail scrapings. The trial court denied the motion with regard to the remaining evidence, finding that there was no evidence as to when the DNA evidence was deposited on those items or that the source of that DNA participated in the crime. On August 10, 2004, Overton filed a second motion that requested DNA testing of the hairs attached to the tape used to bind Susan. On August 19, 2004, the trial court denied the second motion, finding that unless the hairs were determined to belong to Overton, the results would not be relevant and could not be admitted during the trial. Additionally, the trial court found that the results of any DNA testing on the hairs would not give rise to a reasonable probability that Overton would have been exonerated or given a lesser sentence because there was no way to establish the origin of the tape or hairs, when the hairs attached to the tape, or whether there was any connection between the hairs and the crimes.
Overton filed a petition for a writ of habeas corpus with this Court on February 8, 2006. This appeal followed.
MOTION FOR POSTCONVICTION RELIEF
I. No Full and Fair Evidentiary Hearing
Overton contends that he was denied a full and fair evidentiary hearing at the postconviction stage due to the following: (1) the trial court engaged in questioning during the evidentiary hearing that functioned as questioning from a "second prosecutor"; (2) the evidentiary hearing occurred without proper discovery of the Bode Lab documents; (3) the trial court improperly denied Overton's request for additional experts to rebut the State's testing; (4) the trial court placed improper restrictions on Overton's questioning of witnesses while giving the State "free reign [sic]" to question on any topic; (5) the evidentiary hearing improperly began before all DNA testing had been completed; and (6) the trial court's denial of discovery requests for FDLE documents prevented a full and fair hearing.
The arguments with regard to the allegedly improper conduct by the trial judge at the evidentiary hearing are all procedurally barred because there was no *547 objection during the evidentiary hearing. To preserve error for appellate review, the general rule requires that a contemporaneous, specific objection occur at the time of the alleged error. See F.B. v. State,
Even without these procedural bars, Overton's claims with regard to his failure to receive a full and fair evidentiary hearing are without merit.[10] With regard to the questioning by the trial court, which Overton contends functioned as action from a "second prosecutor," there was not any bias displayed by the trial court in favor of either the State or Overton. Instead, the court questioned witnesses to clarify certain points after both parties asked initial questions and also to gain further knowledge into background information with regard to the witnesses. As evidenced by the length of the evidentiary hearing, we conclude that the trial court's refusal to rush through the evidentiary hearing and the decision to ask questions to ensure that all pertinent information was on the record helped facilitate a full and fair hearing here. See Sims v. State,
The alleged restrictions that the trial court placed on Overton's questioning of witnesses and the "free reign [sic]" given to the State to question on any topic are not supported by the record. Overton contends that despite the summary denial of the claim that his counsel was ineffective for failing to investigate the work alibi defense, the trial court still allowed the State to question witnesses on the topic. The record establishes that Overton was also allowed to elicit testimony on the topic. For example, on redirect questioning of Garcia, Overton's postconviction counsel elicited that Garcia hired an investigator to find the receipts from the Amoco station in support of the work alibi defense. Thus, contrary to Overton's argument, the trial court did not deny this particular claim twice without ever allowing Overton the opportunity to present testimony on the topic.
The claim that it was improper to begin the evidentiary hearing before all DNA testing had been completed is without merit. Overton contends that the trial court's denial of his motion for a continuance of the evidentiary hearing improperly allowed the hearing to proceed. As a general rule, a
court's ruling on a motion for continuance will only be reversed when an abuse of discretion is shown. An abuse of discretion is generally not found unless the court's ruling on the continuance results in undue prejudice to [the] defendant. This general rule is true even in death penalty cases.
Hernandez-Alberto v. State,
Overton's claim that the trial court's denial of discovery requests for FDLE documents prevented a full and fair hearing is without merit. A trial court's determination with regard to a discovery request is reviewed under an abuse of discretion standard. See Reaves v. State,
Accordingly, the claim that Overton's due process rights were violated as a result of the failure of the trial court to provide him with a full and fair hearing is without merit.
II. Ineffective Assistance of Trial Counsel
Following the United States Supreme Court's decision in Strickland v. Washington,
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright,
A. Ineffectiveness During the Frye Hearing
Overton contends that his counsel was ineffective due to the failure to participate[11] during the Frye[12] hearing, *550 which was requested by defense counsel on December 21, 1998, and occurred on January 7, 1999. As a general rule, a frye hearing is "utilized in Florida only when the science at issue is new or novel." Branch v. State,
We conclude that the limited participation of counsel during the Frye hearing did not constitute deficient performance because it was a strategic decision made by counsel. During the evidentiary hearing, both Garcia and Smith testified that they came to the mutual decision that the defense would not participate further during the Frye hearing. Counsel was of the view that they would not participate due to the lack of discovery with regard to the procedures and protocols that the Bode Lab used in testing.[13] Consistent with this belief, both Dr. Litman and Dr. Libby, who were experts hired by Overton's counsel, expressed to overton's counsel that they could not give adequate testimony if called during a Frye hearing due to the lack of discovery. Overton's counsel asked for a continuance to provide more time to prepare, but the trial court denied the request. Based upon these circumstances, it was a reasonable decision by Overton's counsel to not participate to a greater extent. The fact that counsel may not have been prepared to fully participate during the Frye hearing does not establish they were not equipped to make a strategic decision with regard to whether they should participate to a greater extent. During the evidentiary hearing, Smith testified that the defense made a strategic decision not to participate further to properly preserve the issue of the lack of discovery with regard to the Bode Lab, which could then be attacked on direct appeal. Consistent with the strategy, appellate counsel argued the discovery issue on direct appeal, but this Court found the argument to be without merit. See Overton,
In making the strategic decision, Overton's trial counsel understood that even if they were able to prevent the STR DNA testing by the Bode Lab from being admitted into evidence, the RFLP DNA testing by the FDLE Lab would still be admitted *551 and would similarly link Overton to the crime. Prior to the Frye hearing, even the trial court acknowledged that case law established that RFLP DNA testing results would be admitted here and the Frye hearing was unnecessary on that DNA matter. Moreover, Dr. Litman previously advised Overton's counsel that RFLP DNA evidence should be admitted in this case. Overton's counsel requested the Frye hearing to challenge only the newer STR technology. Overton correctly concedes that his counsel possessed proper discovery from the FDLE Lab to challenge the RFLP testing that the FDLE Lab conducted, but, contrary to Overton's position, there was no reason to challenge the clearly admissible RFLP DNA evidence.
Moreover, despite the decision to not participate further during the Frye hearing, other attempts were made by Overton's counsel to exclude these DNA testing results. First, Overton's counsel asked that the DNA evidence be excluded and renewed the motion immediately before the Frye hearing. Second, Overton's counsel understood that the chain of custody issue would not be waived and they could still challenge witnesses during trial with regard to the alleged broken chain of custody. An alleged broken chain of custody was significant to the defense to support the defense theory that law enforcement had the opportunity to plant Overton's DNA which was found in this case. With this goal, it was reasonable for Overton's counsel to believe that an alleged broken chain of custody did not need to be addressed during the Frye hearing, but rather, should be addressed during trial. During trial, Overton's counsel thoroughly cross-examined Dr. Pope and Detective Petrick, both of whom worked for law enforcement agencies and gathered evidence from the crime scene, on the alleged broken chain of custody, which illustrated that this chain of custody issue was not waived. With regard to Pope, cross-examination on the issue included the following: (1) envelopes that were used to store DNA evidence were misdated; (2) there were no property receipts to account for the swabs that were used to obtain fluids from Susan's body at the scene; (3) the swabs were transported to his home, which was not a certified storage facility; (4) these swabs were placed in his home refrigerator; (5) the first property receipt for the envelopes of clippings, which provided a match to Overton's DNA, was dated June 10, 1994; (6) the bedding (quilt, mattress pad, comforter, and bed sheet) on which semen stains were found were placed in paper bags and transported to his home to be air dried; (7) the bedding was transported to the Key West property evidence storage room on August 26, 1991; and (8) he transported the mattress pad in a paper bag by car to Orlando to have a psychic conduct an inspection. Cross-examination of Petrick on the challenged chain of custody included the following: (1) the paper bags in which he collected evidence did not resemble the particular paper bag that allegedly had his signature on it; (2) this alleged signature on the paper bag, which read "Detective R. Petrick," was not his signature; and (3) the property receipts with regard to the clippings in envelopes had writing on them that was not his writing. Contrary to Overton's assertion that the cross-examination was insufficient, Overton's counsel attacked the alleged broken chain of custody with regard to both the brown paper bag and the envelopes that contained the clippings.
Finally, we conclude that the decision by Overton's counsel to not address a potential degradation of the DNA evidence during the Frye hearing on the basis of an alleged broken chain of custody was reasonable. First, notwithstanding that Overton's *552 counsel had not conceded at the time of the Frye hearing that the DNA evidence taken from the scene belonged to Overton, the location of DNA evidence matching Overton would be consistent with his theory that his DNA had been planted there. See McDonald v. State,
Even if the lack of participation by Overton's counsel during the Frye hearing was deficient, there was no prejudice for multiple reasons. First, the chain of custody was intact. When the evidentiary hearing concluded, the trial court found that "there can be no doubt that the chain of custody was absolutely intact and well documented." This finding is supported by competent, substantial evidence. See Williamson v. State,
Second, even if the chain of custody was broken, there was not sufficient evidence to establish a probability of tampering, which would support exclusion of the evidence. See Murray v. State,
Third, we conclude that the STR DNA testing completed at the Bode Lab meets the requirements of the Frye test. Under the first prong of the Frye test, there is strong evidence that the underlying scientific principle with STR DNA testing was generally accepted at the time of Overton's trial in 1999. See McDonald,
*554 B. Ineffectiveness During the Guilt Phase of the Trial
1. Failure to Adequately Challenge the Jailhouse Informants
Overton contends that counsel was ineffective for the failure to adequately challenge the jailhouse informants during the guilt phase of the trial. This claim fails on the merits because we conclude that Overton's counsel did sufficiently challenge the jailhouse informants during trial. With regard to Guy Green, Smith elicited on cross-examination that Green had lied in the past to receive benefits, attempted to elicit that Green would receive benefits for the testimony here, and elicited the disciplinary problems that resulted in Green's gain time being lost. With regard to Zientek (also referred to as "Pesci"), Smith elicited the following information on cross-examination: (1) Zientek had repeatedly lied in the past; (2) Zientek was receiving a benefit to testify in this case; (3) the MacIvor case was in the newspapers at the time Zientek was in jail; (4) Overton was a "big fish" in that he had the most serious charges pending while in the jail; (5) Zientek never disclosed to Overton the true facts of his case; (6) Zientek made additional assertions to law enforcement that he did not include in his initial statement; and (7) Zientek faced significant time on serious charges (i.e., sexual battery) if his case proceeded to trial. Overton's counsel also unsuccessfully attempted to elicit that Zientek was known for entering the cells of other prisoners to view their personal documents.
With regard to the failure to reference specific issues on cross-examination, Overton's counsel possessed sound strategic reasons for not challenging the jailhouse informants on these various points. First, during the evidentiary hearing, both Smith and Garcia testified that an investigation was conducted with regard to whether anyone witnessed Zientek in Overton's cell, but nothing useful was produced by the investigation. Garcia testified that Overton provided the defense with a list of names of those who could supposedly corroborate that Zientek was in Overton's cell. After investigating all of these persons, Garcia recalled "that none of them gave us [Zientek] in the cell." Consistent with Garcia's testimony, Smith testified that none of the persons identified by Overton as individuals who supposedly saw Zientek in Overton's cell could actually make such a statement upon being deposed. Smith testified that anyone who observed Zientek in Overton's cell would have been used as a witness. In addition to being unable to state that they saw Zientek in Overton's cell, none of these people could confirm that Overton's door was left open when Overton did not occupy his cell. Additionally, Jon Ellsworth, prosecutor for the State in this case, testified that upon being deposed, none of these people could corroborate Overton's story that Zientek had access to Overton's cell. Thus, Overton's counsel was not deficient for the failure to challenge Zientek with testimony that he was seen in Overton's cell. The testimony of Overton's counsel during the evidentiary hearing establishes that this avenue of challenging Zientek was investigated and reasonably rejected as a matter of strategy due to the lack of evidence.
*555 Second, the decision of Overton's counsel to not offer themselves as witnesses (they saw Overton's cell door open during their attorney visits with Overton) to contradict the testimony of Zientek during trial that he did not have access to Overton's cell (Zientek testified that the cell door was never left open) was reasonable, rather than deficient performance. Neither Garcia nor Smith ever actually saw Zientek in Overton's cell, but instead, only saw Zientek walking around the area in which Overton's cell was located. During the evidentiary hearing, Garcia recalled Zientek's testimony during trial that he did not have access to Overton's cell, but he (Garcia) did not believe Zientek's testimony made him a witness in the case to the extent that he needed to place his name on a witness list. Garcia did not consider himself a witness because when he saw Zientek, Zientek "wasn't in the cell." Similarly, Smith testified that it never occurred to him that he should bring this to the trial court's attention. It was reasonable for Overton's counsel to conclude that because they never saw Zientek in Overton's cell, their knowledge that Overton's cell door was left open during attorney visits was fairly insignificant. Moreover, Overton's counsel elicited on cross-examination that Zientek had general access to Overton's cell due to Zientek's activities of sweeping and mopping in Cell Block A. Further, Ellsworth testified during the evidentiary hearing that he had witnesses (including several jailers who could testify that Overton's cell was always locked in accordance with the jail's rules) prepared to testify to rebut the allegation that Zientek could access Overton's cell. This would have negated any significance that the jury would have attached to any evidence that the cell door was left unlocked. See Jones v. State,
Third, the decision of Overton's counsel to proceed no further with impeachment on Zientek's handwritten notes and the police report from which Zientek's notes appeared to have been copied directly was a reasonable strategic decision. During the evidentiary hearing, Garcia testified that a major goal of the defense was to keep from the jury the fact that Overton was a past suspect in other crimes. Consistent with this goal, Overton's counsel filed the "Motion in Limine Regarding Other Offenses" on January 20, 1999, which was granted by the trial court. Smith and Garcia decided against using this material for impeachment of Zientek because these documents also referenced uncharged and unsolved crimes for which Overton was a suspect and would have opened the door for the State to ask questions on this adverse topic. This strategy was discussed between counsel and it was also discussed with Overton. A motion in limine that was granted ensured that the jury would not learn that Overton was a convicted felon, and counsel did not want to reopen the door on the topic. Moreover, the State was prepared to go through the opened door by referencing the other crimes that appeared on these documents if Overton's counsel had used this material for impeachment. Contrary to Overton's argument, the fear of opening the door on this topic was legitimate as jury knowledge of Overton's past involvement with crimes would have negatively affected counsel's ability to defend on these more serious murder charges. Therefore, Overton's counsel was not deficient for the strategic *556 decision not to impeach Zientek in this manner. See Jones,
Fourth, the decision of Overton's counsel to not explore Zientek's relationship with Detective Daniels did not constitute deficient performance. The record supports that Zientek was not an agent of the State and also that there was a reasonable strategic reason for not questioning Zientek on his relationship with Daniels. Daniels became involved with Zientek only after the FBI contacted him (Daniels) about the fact that Zientek possessed information on the MacIvor murders. After Daniels received Zientek's statement with regard to Overton's confession, he advised Zientek to not solicit any further information from Overton. Moreover, Daniels testified that it was Zientek who initiated the contact, rather than Daniels attempting to find ways for Zientek to embellish his story (i.e., showing Zientek crime scene photos). This is inconsistent with the assertion that Zientek was an agent who worked for the State. There was also sound strategic reasoning for this decision.
Overton also contends that Zientek should have been questioned on his involvement with Daniels on other matters to illustrate that Zientek worked as an agent for the State. This mode of impeachment was considered and rejected by Smith because it would have opened the door to bolstering Zientek's testimony if the information given to Daniels in subsequent cases was corroborated by Daniels as being truthful. See Jones,
Even if any of these failures were deemed to constitute deficient performance, there was no prejudice. Green provided similar testimony that supported the conviction here. See Whitfield v. State,
2. Failure to Investigate Alibi or Alternative Theories of the Crime
Overton contends that his counsel was ineffective for the failure to investigate alibi or alternative theories of the crime. We conclude that this claim fails on the merits. The decisions by counsel to not present a work alibi defense that Overton *557 was working at the Amoco gas station at the time of the MacIvor murders and alternative theories of the MacIvor murders were reasonable strategic decisions. The decision with regard to the work alibi defense was made only after an adequate investigation revealed that there was no evidence that Overton worked at Amoco on the night of the MacIvor murders. During the evidentiary hearing, Overton testified that he had worked at the Amoco station for just over one year at the time of the MacIvor murders in August 1991. The defense hired investigators Jeff Galler and Dave Burns to investigate the work alibi defense. Documents (timecards and receipts) that would have established whether Overton worked the night of the murders were no longer available for these investigators to review. Moreover, co-workers could not recall whether Overton worked that night. Multiple managers at Amoco at the time testified that they could not remember whether Overton worked the late shift that night, which covered from 11 p.m. to 7 a.m. A non-manager who normally worked the morning shift testified that she could not remember whether Overton worked that night. Defense counsel "considered an alibi defense, but . . . were unable to come up with specific witnesses." Additionally, Overton has not established that this evidence would have illustrated that Overton worked that night even if these witnesses had memory or if timecards had been available. See Pardo v. State,
Moreover, there was no prejudice from the failure to present the alibi defense because even if Overton's counsel had established that Overton was working that night, sufficient time remained for him to commit the murders. At best, the work alibi was an incomplete alibi. Susan and Michael were last seen alive at a childbirth class on August 21, 1991, which ended at about 9 p.m., and their bodies were not found until the next morning by concerned co-workers and a neighbor. See Overton,
Overton further asserts that alternative theories for the murders were not presented. The record establishes that the other leads and suspects were considered and strategically rejected by Overton's counsel. Counsel were aware of the other leads and suspects that law enforcement had pursued, but "there was nothing that [they] could come up with solid to put on" when they explored these leads and suspects. For example, counsel considered the alleged involvement of Hector Hernandez,[17] but a strategic decision was made to not explore that avenue during trial after it was discussed with Overton. In addition to their belief that the statements of Hector Hernandez were not credible, Overton's counsel recognized that the Hernandez theory also clearly placed Overton at the murder scene. This was inconsistent with the defense theory that was consistently presented at trial that Overton was not present and his DNA had been planted by law enforcement.
Overton's specific claim that an alternative theory of the murders[18] should have been presented during trial is without merit. Notwithstanding that the rationale provided by Katsnelson for this alternative theory may be argued as reasonable, there are numerous sound reasons why it was not presented by Overton's counsel. For example, Overton's counsel could have reasonably concluded that Katsnelson's opinion was not credible due to his questionable qualifications as an expert witness. Evidence of his qualifications included the following: (1) he is currently unemployed; (2) he graduated from medical school outside the United States; and (3) he has never been in the private practice of medicine in the United States. Even though Katsnelson subscribed to an alternative opinion theory, this does not support the contention that another expert in the field would have come to a similar conclusion. See Johnson v. State,
3. Failure to Challenge the Burglary Charge with Regard to the Statute of Limitations
Overton further contends that the failure of his counsel to challenge the burglary charge on the basis of an expiration of the statute of limitations constituted ineffective assistance. Here, the State alleged that the burglary occurred in August 1991. Thus, assuming the statute of limitations was not extended or tolled, it would have expired in August 1995, because at the time of the incident, the limitation for a prosecution for a first-degree felony (such as the burglary charged here) was four years from the offense date. See ยง 775.15, Fla. Stat. (1991); Perez v. State,
This ineffective assistance claim is without merit regardless of whether the State could have amended the charging document to include the more serious burglary charge. The State did not need to include a burglary charge in this case for the trial court to find the aggravating factor of murder committed during the course of a felony. See Occhicone v. State,
4. Failure to Challenge the Preindictment Delay of Five Years
Overton contends that the failure of his counsel to challenge the preindictment *560 delay of five years constituted ineffective assistance. Overton has not demonstrated prejudice because the underlying claim involving preindictment delay is without merit. To possibly establish that a preindictment delay is a due process violation, the defendant must first show actual prejudice from the delay, and the court must then weigh any demonstrable reasons for the delay against the significance of the particular prejudice on a case-by-case basis. See Rivera v. State,
Under the first, Overton could not establish there was actual prejudice from the delay. Even assuming alibi witnesses and Amoco timecards or receipts would have established that Overton worked the late night shift on August 21, 1991, this would only provide an incomplete alibi at best as discussed above. See Rivera,
Finally, Overton's argument that the delay led to degradation or contamination of the DNA evidence lacks any evidentiary support. During the evidentiary hearing, Dr. Libby testified that he could not make the determination that degradation in fact resulted with the DNA evidence here. Moreover, Dr. Bever testified that Overton's DNA was a match and those samples "did not show any significant signs of degradation." The evidence established that there were no signs of even minor degradation. Additionally, Dr. Pollock testified that degradation was not an issue here as any degradation was only a minor amount, which was insignificant to his opinion and examinations. The speculation by Overton that degradation must have occurred during the preindictment delay does not satisfy the actual prejudice requirement. See Maharaj v. State,
*561 Under the second element, there was justification for the delay by law enforcement. But cf. Scott v. State,
5. Failure to Declare a Conflict of Interest
Overton contends that the failure of his counsel to declare a conflict of interest constituted ineffective assistance. This claim is without merit. As a general rule, "the right to effective assistance of counsel encompasses the right to representation free from actual conflict." Sliney v. State,
Contrary to Overton's arguments, nothing supports the contention that Overton's counsel improperly revealed the Nonoxynol defense theory to the State through any method, including the presentation of a book which supposedly outlined the theory. During the evidentiary hearing, Overton testified that he learned about the Nonoxynol theory while reading the book, which he then presented to his counsel. Conversely, Overton's counsel both testified that they were never given the book by Overton. Instead, they testified that the Nonoxynol theory was first brought to their attention by Dr. Wright. The testimony of Overton's counsel is corroborated by Ellsworth, who testified that neither Smith nor Garcia ever gave him the book. Instead, Ellsworth actually informed defense counsel that the Nonoxynol theory was in the book. The book was part of the State's case file only because the book belonged to Ellsworth. The record does not support Overton's assertion that an actual conflict existed; therefore, there is no need to conduct further analysis. See Wright v. State,
III. Brady Violation for Improperly Withholding Evidence
Overton contends that the State committed the following Brady violations, which prevented a full and fair evidentiary hearing: (1) failed to provide the notes from the brainstorming sessions of law enforcement in which Overton was eliminated as a suspect; (2) failed to provide the evidence that Dr. Pope's DNA work had been sloppy in other cases; (3) failed to provide evidence of three other possible suspects that were investigated by law enforcement; and (4) failed to provide pages that were missing from police reports. Generally, for a Brady violation to exist, the defendant must establish the following: "(1) the State possessed evidence favorable to the accused because it was either exculpatory or impeaching; (2) the State willfully or inadvertently suppressed the evidence; and (3) the defendant was prejudiced." Allen v. State,
The claim based on notes from police brainstorming sessions is clearly without merit. Overton was provided the Rough Notes from Profilers Meeting 05-06-92, which suggested that he be eliminated as a suspect. He contends that he should have been provided additional notes from subsequent brainstorming sessions during which he was eliminated as a suspect. Overton contends that he must have been eliminated as a suspect in a subsequent meeting because he was not arrested and charged with the MacIvor murders until 1996. Notwithstanding that some evidence exists that subsequent profiler meetings did take place (Detective Visco testified that he recalled being present for a similar type of meeting after 1992), Overton's argument that additional reports with exculpatory information were generated is based on pure speculation, which is insufficient to establish a Brady violation. See Wright,
With regard to the alleged evidence that Dr. Pope's DNA work had been sloppy in other cases, the State is correct that there could be no prejudice with this particular Brady claim. First, the alleged evidence with regard to Pope's performance in Allen,
The claim based on alleged evidence of three other possible suspects also fails on the merits. The record refutes Overton's argument that information on Hector Hernandez was not disclosed to his counsel. Overton's counsel testified that he was given the information about Hernandez. Consistent with that testimony, Ellsworth testified that he advised Overton's counsel about Hernandez as a suspect upon his receipt of the information. Moreover, the information was actually inculpatory rather than exculpatory. These statements from Hernandez would establish that he was at the murder scene while Overton was murdering the MacIvors. Overton's counsel clearly did not want to pursue the alleged involvement of Hernandez because it would place Overton at the scene, which was totally inconsistent with the defense theory that Overton was not at the scene and that his DNA had been planted.
Overton fails to include names of other suspects allegedly concealed. Due to law enforcement's investigation of multiple suspects here, the failure to include identification of which suspects were allegedly not disclosed constitutes an insufficient pleading. See Gore,
The Brady claim as to missing pages from police reports is also insufficiently pled as Overton does not present any information as to what these pages included or how such would be exculpatory. See Gore,
IV. Improper Summary Denial of Several Claims
Overton contends that the trial court improperly "picked and chose" the issues upon which to grant an evidentiary hearing by summarily denying several claims. As a general rule, when this Court reviews the summary denial of a claim raised in a rule 3.851 motion, "this Court accepts the movant's factual allegations as true, and we will affirm the ruling only if the filings show that the movant has failed to state a facially sufficient claim or that there is no issue of material fact to be determined." Booker v. State,
Overton's evidentiary hearing claim that postconviction counsel was denied access to public records from various agencies is without merit. This claim was exhaustively argued in the trial court on January 14, 2003, and no further evidentiary hearing before the same trial court was necessary. Thus, there was no issue of material fact to be determined. Generally, an abuse of discretion standard is applied to review a court's denial of a public records request. See Hill v. State,
In a similar manner, the summary denial of other ineffective assistance claims in Claim II was correct. The allegations of counsels failure to utilize experts in crime scene investigation is refuted by the fact that extensive testimony on crime scene investigation matters did occur. During trial, Dr. Wright testified that it was possible that the murders were committed elsewhere and there could have been more than one perpetrator. Thus, the claim was legally insufficient on its face.
Allegations directed to counsel's failure to utilize an expert for additional testing of Nonoxynol[20] were also properly denied because *565 the trial court was correct in concluding that the claim was procedurally barred because it already had been decided. On direct appeal, this Court held that the trial court did not err by failing to appoint an additional defense expert to rebut the State's theory of Nonoxynol in the bedding. See Overton,
Allegations of counsel's failure to properly prepare for trial, which allegedly produced inadequate cross-examination of both Detective Petrick with regard to partial palm prints on the metal pipe and Dr. Nelms on alternative theories of the crime, are also baseless and summary denial was proper. First, Overton's counsel did properly challenge Petrick's statement that he did not know if the partial palm prints were compared to Overton by eliciting direct evidence from other witnesses that a comparison did occur and there was no match. Detective Daniels testified that the partial palm prints did not match with those of Overton. Second, Overton's counsel did properly address the testimony of Dr. Nelms by presenting Dr. Wright as a defense expert. Wright expressed the opinion that it was possible that the murders occurred elsewhere and that there was more than one perpetrator. Thus, these claims were legally insufficient on their face.
Contrary to Overton's arguments, an evidentiary hearing was in fact granted on the allegations in paragraph 34 of the petition directed to counsels failure to promptly investigate work alibi witnesses. In addition to the court's order reflecting that an evidentiary hearing was granted, there were numerous witnesses presented during the evidentiary hearing who were extensively questioned on the issue of a possible work alibi defense and whether Overton's counsel pursued the theory.
The challenge to counsel's failure to present evidence of harassment of Overton by the Monroe County Sheriff's Office[21] was also properly summarily denied. The trial court was correct in concluding that pursuit of the theory would have opened the door to the fact that Overton was a suspect in many unsolved crimes, which Overton's counsel attempted to avoid as evidenced by the motion in limine they filed. The claim was facially invalid. Similarly, other paragraphs which assert that counsel improperly failed to impeach Detective Visco with Overton's statements from the Rachelle Surrett homicide investigation were also properly summarily denied because this would have opened the door to the fact that Overton was a suspect in the unsolved crime involving Surrett.
Denial of Claim III, which alleged that the State committed a Brady violation by not providing notes from police profiler brainstorming sessions and documentation of the sloppy collection techniques of Dr. *566 Pope in other cases, was also correct. As discussed above, Overton's claim that the State did not provide notes from brainstorming sessions is insufficiently pled because it is based on pure speculation. See Gore,
Claim VII, which alleged that Overton's counsel was ineffective for the failure to object to the jury instruction on the testimony of expert witnesses, was correctly denied as facially invalid. During the Huff hearing, Overton's counsel stipulated that this particular jury instruction was the standard expert jury instruction and that this legal issue could be determined without an evidentiary hearing. Failure to object to a standard jury instruction is not ineffective assistance here. See Elledge v. State,
Claim VIII, directed to a lack of effective assistance due to a rule of professional conduct that prevents the interviewing of jurors, has no merit and was facially invalid. During the Huff hearing, Overton's counsel stipulated that this was the particular rule in place and that this was a purely legal issue. The claim is procedurally barred because it could have been asserted on direct appeal and is now being couched in terms of ineffective assistance. See Arbelaez v. State,
Claim IX, which alleged ineffectiveness during voir dire, was insufficiently pled to the trial court. Overton advanced only conclusory arguments that because the jury was not sequestered and his motion to change venue was denied, counsel must have been ineffective during voir dire. See Bryant v. State,
Claim X, asserting cumulative error, was properly denied. As we have explained, all of Overton's claims of error have been rejected which renders this cumulative error claim moot. See Marshall v. State,
Claim XI, directed to a lack of effective assistance due to a failure to object to the introduction of time-barred offenses (the burglary charge), and Claim XII, which claimed that Overton's death sentences were unconstitutional under Ring, were both properly denied without an evidentiary hearing. Overton's postconviction counsel conceded that these were purely legal issues that did not require an evidentiary hearing. Moreover, as previously developed, no prejudice resulted from the introduction of the burglary charge, which the *567 trial court correctly recognized in denying the evidentiary hearing. Additionally, the claim that Overton's death sentences violated Ring was clearly without merit because this Court has previously held that Ring cannot receive retroactive application. See Johnson v. State,
Relief cannot be granted on Claim XIII. This claim concerning a Richardson hearing has been insufficiently presented in Overton's brief to this Court because it is merely listed with no corresponding argument. See Darling v. State,
MOTION FOR POSTCONVICTION DNA TESTING
Overton contends that the trial court erred in the partial denial of the motion which requested DNA testing of the hairs attached to the tape used to bind Susan. As a general rule, Florida Rule of Criminal Procedure 3.853(c)(5) provides:
(5) The court shall make the following findings when ruling on the motion:
. . . .
(B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial. . . . (C) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.
Fla. R.Crim. P. 3.853(c)(5)(B)-(C). In the order denying relief with regard to the second motion for DNA testing, the trial court found:
b. In terms of admissibility at trial of the results of the DNA testing in question, there appears to exist reliable proof to establish authenticity and a chain of custody. However, in terms of relevance, unless the results showed the hairs to be those of the Defendant, the results would not be relevant and hence, not admissible.
c. If the DNA evidence had been admitted at trial, there is no reasonable probability that the Defendant would have been acquitted or would have received a lesser sentence.
The trial court also noted:
[E]ven assuming that the source of the hairs in question is a person other than the Defendant or one of the victims, that information is of no consequence. First of all, there is no way to determine where the tape itself came from, that is, was it in the MacIvor's residence before the break-in or was it brought to the crime scene by the perpetrator? Secondly, the fact of the matter is that tape is a sticky substance which can easily pick-up a few strands of hairs in a variety of ways and from a variety of sources. For example, the pieces of hair in question could have been on the tape prior to commission of the crimes, or the pieces of hair could have been left in the MacIvor residence weeks, months, or even years before the crimes by a legitimate guest and then picked up by the tape at the time of the crimes. In view of the fact that it is impossible to establish when and how the pieces of hair became attached to the tape, DNA testing is of no use or significance.
We agree with the trial court and deny relief as we more fully explain.
*568 I. The Admissibility of the Evidence
Overton contends that it was error to find that DNA test results of the hairs on the tape would only be admissible if the hairs belonged to Overton. He reasons that if DNA testing revealed that the hairs came from someone other than the victims and not from him, the results would prove the identity of the true perpetrator and disprove that he was at the crime scene. He asserts this would constitute relevant admissible evidence. As the trial court correctly noted, evidence that the hairs came from someone other than Overton or the victims would fail to prove or disprove any theory in this case because it is impossible to establish when or how the hairs may have become attached to the tape.
In an effort to provide the requisite nexus to link the hairs to the crime, Overton contends that the hair became attached to the unwrapped tape only as it was being used to bind the victim's ankles and contends that the decision on direct appeal establishes that the tape came from inside the home. Although the decision of this Court on direct appeal states that the "officers believed that the items used to bind and strangle Susan came from inside the home," Overton,
Regardless of where the tape originated, Overton's assertion that the hair adhered to the tape only as fresh layers of tape were unwrapped from the roll does not establish the requisite nexus between the hair and the crime. Even if the hair adhered to a section of freshly unwrapped tape, that fact does not establish the source of the hair or the timing of placement within the home. The hair could have easily originated from a large number of sources, including the carpet, comforter, victim's nightshirt, or any of the items thought to have been emptied from her purse which were discovered under the comforter upon which her body was found. See id. Likewise, the hair could have attached on contact with the belt or clothesline rope that were also used to bind Susan. See id. Thus, the conclusory assertion that if the hair does not belong to Overton or the victims, it must belong to a person who committed or participated in the crime, is far too tenuous because there is no way to determine when, why, where, or how the hairs attached to the tape. This assertion is the type of speculation that this Court has found to be a basis for denying a rule 3.853 motion. See Lott,
Based on the foregoing, the trial court correctly determined that the rule 3.853 motion failed to demonstrate that the *569 DNA evidence sought by Overton would have been admissible during the trial.
II. Reasonable Probability of Acquittal or Lesser Sentence
The rationale with regard to the admissibility of the test results is also applicable with regard to the analysis of whether the DNA evidence would have given rise to the reasonable probability that Overton would have been exonerated or received a lesser sentence had the evidence been introduced during trial. Florida courts have repeatedly denied motions for the DNA testing of hair where the time and manner in which the hair was deposited at the crime scene or on a piece of evidence is unknown. See King v. State,
Overton argues that because, unlike Galloway, the State here did not assert or prove that there were multiple perpetrators, DNA testing of the hair would prove that there was an additional participant in the sexual battery and murder of Susan, which would give rise to the reasonable probability that Overton would have received a reduced sentence. However, contrary to this assertion, the decision of the First District Court of Appeal in Galloway was based on the fact that even if testing of the evidence obtained from the crime scene demonstrated that the DNA did not match the defendant, it would not prove that the defendant was not present at the crime scene or a participant in the crime. See Galloway,
Overton asserts that there was no evidence other than the allegedly unreliable DNA test results that linked him to the crime in the instant case and that the trial court impermissibly relied on this evidence in denying the instant motion. However, the trial court based its determination that testing of the hair would be inconsequential to proving or disproving any material fact upon the impossibility of determining how, when, where, or why the hair was deposited in the MacIvors' residence.[22] Moreover, and contrary to Overton's argument, this Court has already acknowledged the importance of the direct testimony in linking Overton to the crime, which is completely independent of DNA testing. See Overton,
Based on the foregoing, the trial court correctly found that the rule 3.853 motion failed to assert a reasonable probability that the requested testing would exonerate Overton or lessen his sentence.
III. Evidence From the Record
Overton contends that the trial court was required to specify evidence in the record that conclusively demonstrates he is not entitled to relief, and he relies on Ortiz v. State,
IV. Entitlement to an Evidentiary Hearing
Finally, Overton contends that the trial court should have held an evidentiary hearing to determine the type of trace evidence that could be picked up by tape, the type of evidence that could be recovered from the tape, the condition of the tape, and where it was found. Florida courts have required evidentiary hearings in 3.853 proceedings only when there is *571 some disputed factual issue. See Jordan v. State,
PETITION FOR WRIT OF HABEAS CORPUS
I. Ineffective Assistance of Appellate Counsel
As a general rule, claims of ineffective assistance of appellate counsel are presented in a petition for writ of habeas corpus. See Freeman v. State,
[F]irst, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Pope v. Wainwright,
A. Failure to Challenge the Denial of the Motion to Change Venue
Overton contends that his appellate counsel was ineffective for the failure to present on appeal the improper denial of his motion to change venue. The record clearly establishes that Overton's trial counsel requested a change of venue due to alleged pretrial publicity. Generally, to determine a change of venue, the test is:
*572 [W]hether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom.
Rolling v. State,
1. Extent and Nature of Any Pretrial Publicity
With the pretrial publicity here, the record does not establish that the jurors could not possibly "put these matters out of their minds." Rolling,
*573 Conversely, the material did contain some inflammatory items including: (1) many of the stories did mention Overton's past criminal activity as a burglar; (2) a description that Overton "[had] been in trouble since he was a youngster"; (3) a description that Overton was institutionalized for mental health problems in the past; and (4) the DNA results established that there was a one-in-six-billion chance that anyone but Overton committed the crime. Notwithstanding some inflammatory matters, it was reasonable for the trial court to conclude that the pretrial publicity was largely factual, rather than inflammatory. See Rolling,
2. Difficulty Encountered in Actually Selecting a Jury
Notwithstanding that some pretrial publicity did exist here, the record establishes that the jurors were not so infected that they could not possibly "put these matters out of their minds." Rolling,
B. Failure to Challenge the Denial of the Motion to Exclude DNA Evidence Based on a Break in the Chain of Custody
Overton argues that his appellate counsel was ineffective for the failure to challenge the denial of the motion to exclude DNA evidence based upon a break in the chain of custody. The claim is procedurally barred. Overton made the motion to exclude the DNA evidence only in the alternative if his motion to compel (and his corresponding motion to continue to allow time to review the documents) the production of the Bode Lab documents was denied. Although Overton did ask the trial court to exclude the DNA evidence, this request was made in the context of his request to have Bode Lab documents produced so he could challenge at the Frye hearing the testing that was used (i.e., the protocols and procedures) under the second prong of the Frye test. As presented to the trial court, the motion to exclude was based upon the alleged faulty protocols or procedures, rather than an alleged broken chain of custody that Overton now asserts. The trial court was not presented with the specific argument that the DNA evidence should be excluded due to an alleged broken chain of custody. To preserve error for appellate review, the general rule is a contemporaneous, specific objection must occur during trial at the time of the alleged error. See F.B.,
Even if this claim did not have a procedural bar, the claim is without merit. Overton's appellate counsel was not ineffective here because the underlying claim itself is without merit. Even if the claim had been asserted, this Court would not have concluded that the chain of custody was broken because as previously analyzed, the chain of custody here was intact. Moreover, even if this Court had concluded that the chain of custody had been broken, the trial court's denial of the motion to exclude would not have been reversed. A broken chain of custody is not enough by itself to establish the probability of tampering, which would require the exclusion of evidence. See Taplis,
II. Ring and Apprendi Violations with Death Penalty Statute
Overton contends that his sentences of death must be vacated because Florida's capital sentencing scheme is a violation of both Ring and Apprendi v. New Jersey,
CONCLUSION
For the foregoing reasons, we affirm both the trial court's denial of Overton's rule 3.851 motion for postconviction relief and the denial of Overton's second rule 3.853 motion for postconviction DNA testing. Additionally, we deny Overton's petition for a writ of habeas corpus.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
NOTES
Notes
[1] The nonstatutory mitigating circumstances found by the trial court were that Overton would be imprisoned for the remainder of his life so there was no danger that he would commit any other violent acts (given "little weight") and Overton's good courtroom behavior/demeanor (given "some weight"). See id. at 889.
[2] The theory was based on the idea that Nonoxynol is a chemical found in spermicidal condoms, so if the bedding from the MacIvor home tested positive for Nonoxynol, it would support the defense's theory that law enforcement planted Overton's semen on the evidence with the use of a spermicidal condom, which Overton claimed they obtained, from his ex-girlfriend, Lorna Swaby.
[3] Brady v. Maryland,
[4] Giglio v. United States,
[5] Ring v. Arizona,
[6] Huff v. State,
[7] The trial court granted an evidentiary hearing on only certain paragraphs of Claim II, which were based on ineffective assistance of counsel related to: (8)-(11) the failure to prepare for the hearing on admissibility of scientific evidence under Frye v. United States,
[8] Richardson v. State,
[9] These items included rope cuttings, fibers, and matted hair obtained from vacuumings around Susan's body; tape cuttings from both victims; rope found on the rear porch; rope found on the bed; hair from the mattress pad; a stain on the mattress pad; hair obtained from vacuumings taken by Dr. Pope; the sexual assault kit; tape from a T-shirt; fingernail scrapings; semen on the mattress pad; and semen on a bottom sheet.
[10] We choose not to address the merits of two sub-issues here because these claims are both unquestionably procedurally barred. With regard to Overton's claim that he was denied a full and fair evidentiary hearing because the hearing occurred without proper discovery of the Bode Lab documents, the claim was addressed on direct appeal. See Maharaj v. State,
[11] It should be noted that Overton's counsel did participate in a limited sense. The trial transcript reflects that Overton's counsel did present objections during the Frye hearing to preserve the argument that there was a discovery violation with regard to the documents from the Bode Lab. Overton's counsel did not participate only in the sense that they did not cross-examine the State's witnesses and they did not call their own witnesses.
[12] Frye v. United States,
[13] Overton contends that his counsel could have still deposed employees from the Bode Lab even without the discovery that prevented greater participation during the Frye hearing. Contrary to Overton's argument, his counsel stated to the trial court during the Frye hearing that any attempt to depose the Bode Lab employees would have been fruitless due to the lack of discovery that also limited their participation during the Frye hearing.
[14] Overton also contends that his counsel should have challenged the RFLP testing results as all discovery from the FDLE Lab had been received, so his counsel was prepared to present this particular challenge. In addition to the even greater general acceptance of the underlying scientific principle with regard to RFLP testing (as compared to STR testing), there was similar testimony during the evidentiary hearing to illustrate the proper procedures and protocols that existed at the FDLE Lab with regard to the RFLP testing that occurred here. During the evidentiary hearing, Dr. Pollock, who was employed at FDLE when the testing for the MacIvor murders occurred, testified that his FDLE Lab had a quality assurance program in place, which ensured that evidence was stored properly. Thus, there is also no prejudice because the RFLP results were clearly admissible and the results from this testing also matched Overton.
[15] Overton also contends that the failure of his counsel to participate more fully during the Frye hearing was per se ineffectiveness under United States v. Cronic,
[16] Overton does assert that that his counsel failed "to adequately investigate the background of [Zientek and Green]," but Overton failed to assert that which would have been revealed had an adequate investigation of Green occurred. Moreover, an adequate investigation did occur as evidenced by the challenges to Green that were accomplished on cross-examination (i.e., counsel elicited the disciplinary problems that resulted in Green's gain time being lost).
[17] In approximately August 1994, Hernandez, who was only sixteen years old at the time of the MacIvor murders, allegedly advised Lee McCune, who worked for a law enforcement agency, that he (Hernandez) was at the crime scene with Overton but he (Hernandez) did not participate in the murders committed by Overton. McCune said that Hernandez provided information that Overton worked at the Amoco station.
[18] Dr. Katsnelson was a witness presented by Overton's postconviction counsel during the evidentiary hearing, and he did not interact with either the State or Overton's counsel during trial. During the evidentiary hearing, Katsnelson's testimony with regard to his alternative theory of the MacIvor murders included the following: (1) he believed that Michael was killed elsewhere and then moved to the house; (2) he believed that there was more than one perpetrator of the MacIvor murders; and (3) he believed that Susan was not sexually assaulted because the abrasion to her vulva would have been more extensive had there been a sexual assault and the dried fecal matter was likely due to involuntary defecation at the time of death rather than an anal rape.
[19] Swaby, who is also referred to as "Swaybe," was Overton's ex-girlfriend. They ended the relationship around the time of the MacIvor murders. During trial, the defense theorized that law enforcement obtained Overton's sperm through a used condom provided by Swaby and then planted Overton's DNA. According to Overton, he always used a condom during sexual intercourse with Swaby because she had AIDS, and they last engaged in sexual intercourse approximately two to three months before the MacIvor murders.
[20] Overton also contends that paragraphs 22 through 28 of his petition contain a claim that counsel was ineffective for the failure to secure a fingerprint expert to analyze prints found on the metal pipe and tape binding, but the record refutes that the claim was included in these paragraphs.
[21] Overton asserted that the alleged harassment included the following: Overton's car was impounded in 1991, which resulted in the discovery of numerous burglary tools in the car, and law enforcement loitered around the Amoco station where he worked in an attempt to link him to various crimes.
[22] It should be noted that the trial court granted the motion for DNA testing with regard to the sexual assault kit and fingernail scrapings of the victims because the presence of skin cells that are neither Overton's nor the victims' could indicate the existence of another perpetrator and mitigate Overton's sentence. Scrapings are more likely to implicate the perpetrator than hair on tape bindings which could come from any source at any time.
[23] With regard to an editorial on August 29, 1991, containing the statement that the "Florida Keys have forever lost the `innocence' that once seduced many of us to make these islands our home," the statement is taken out of context by Overton. The MacIvor murders were only one of three incidents that the editorial mentioned as a cause of this perceived problem. One of the other three was the "release of two whales from their Key Largo pens."
[24] Contrary to Overton's argument, although this Court on direct appeal did conclude that it was error for the trial court to not dismiss prospective juror Russell for cause, see Overton,