SC01-882 – Gregory Alan Kokal v. State of Florida

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SC01-882 – Gregory Alan Kokal v. State of Florida - Revised 4/28/05

State: Florida

Court: Supreme Court

Docket No: sc01-882

Case Date: 01/13/2005

Plaintiff: SC01-882 - Gregory Alan Kokal

Defendant: State Of Florida - Revised

Preview:Supreme Court of Florida
No. SC01-882
GREGORY ALAN KOKAL,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 13, 2005]
REVISED OPINION
PER CURIAM.
Gregory Alan Kokal, a prisoner under sentence of death, appeals an order of
the circuit court denying a successive motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850.   Additionally, Kokal appeals an order of
the circuit court denying his motion to disqualify the trial judge, and further
presents a claim of a violation of his due process rights caused by the State’s
alleged loss of evidence.  We have jurisdiction.  See art. V, § 3(b)(1), Fla. Const.
For the reasons expressed herein, we affirm both of the trial court’s orders, and
hold that Kokal’s due process claim is procedurally barred.

FACTS
In 1984, Gregory Kokal was convicted of the first-degree murder of Jeffrey
Russell and sentenced to death.  This Court upheld his conviction and sentence on
direct appeal.  See Kokal v. State, 492 So. 2d 1317, 1320 (Fla. 1986) (hereinafter
“Kokal I”).  We detailed the facts of the crime and Kokal’s subsequent arrest in our
opinion on direct appeal:
Kokal and a companion picked up a hitchhiker about midnight on the
29th or 30th of September 1983 and drove to a beach park near
Jacksonville.   When they alighted from the truck, the hitchhiker was
struck with a pool cue belonging to Kokal and robbed.  The victim
was then marched about 100 feet at gunpoint where he was beaten
unconscious with the pool cue as he pleaded for his life and then was
killed with a single shot from a .357 revolver.  When the body was
discovered the following morning, the police initially believed, and
the news media reported, that the victim had been beaten to death.  An
autopsy revealed that the gunshot was the cause of death, but this
information was restricted to the doctor performing the autopsy and to
investigating personnel.
The following morning Kokal was apprehended by a police
officer after fleeing in his companion’s truck from a gas station
without paying for gas.  When confronted by the police officer and
gas station attendant, Kokal offered to pay for the stolen gas, but did
not have sufficient cash.  When asked for identification, Kokal
produced his own Florida driver’s license, a Colorado driver’s license
belonging to his companion, a New York driver’s license belonging to
the victim, and an Arizona vehicle registration for the truck which was
titled to his companion.  The officer determined that the truck had not
been stolen in Florida but was unable to check through the National
Crime Information Computer because of system outage.  He arrested
Kokal and seized and inventoried the truck.  Within the truck the
officer found the murder weapon and a box of shells, both of which
had Kokal’s fingerprints.  At the time of Kokal’s arrest, the police did
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not know of his involvement in the murder and released him that day.
Later that evening, Kokal told a friend of specific details of the
robbery and murder not known to the public, including the fact that
the victim was killed by a gunshot following the robbery because
“dead men can’t tell lies.”
Id. at 1318-19.
At trial, Kokal testified on his own behalf.  His testimony was consistent
with the facts as detailed above; however, he stated that it was his companion,
William O’Kelly, who actually beat, robbed, and shot the victim.  While Kokal
admitted to being present during the murder, he denied any involvement.  It was
not disputed at trial that the weapon used to shoot Russell belonged to O’Kelly.
Further, a crucial piece of evidence in the State’s case was a pair of Nike sneakers
that Kokal admitted were his and that he had been wearing on the night of the
murder.  Blood matching the victim’s blood type was found on the sneakers.
During his testimony Kokal explained that at one point during the murder he was
standing approximately six to nine feet away from O’Kelly when O’Kelly beat the
victim with a pool cue and blood from the victim spattered onto his sneaker.
During the trial, the defense also called O’Kelly as a witness.  On direct
examination, O’Kelly admitted to being with Kokal on the night of the murder, but
denied ever firing the weapon.  He was then questioned regarding a letter he had
written to Kokal in November 1983, in which he wrote that it was he, O’Kelly,
who had fired the weapon that night and had accidentally shot the victim in the
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head.  On cross-examination by the State, O’Kelly testified that at the time he
wrote the letter, he was attempting to establish an explanation that would exonerate
both him and Kokal of the crime.  He stated that Kokal was his friend and he
wanted to help him.  O’Kelly then proceeded to detail the events that occurred on
the night of the murder.  O’Kelly recounted almost the identical story as Kokal,
except he claimed that Kokal was the sole perpetrator and that he played no role
whatsoever in the crime.   He noted that he was arrested shortly after the murder
and on the night he was arrested he told the police the same story he had just
testified to, i.e., that despite what he had written in the letter, the truth was that
Kokal had committed the crime.
During its case in chief, the State presented the testimony of Eugene Mosley,
a friend of Kokal’s who spoke with Kokal the night after the murder.  Mosley
explained that he met with Kokal in Kokal’s garage, where Kokal was packing his
truck to leave.  Kokal told Mosley that he and O’Kelly were going to Canada
because Kokal had killed a man.  Mosley testified that Kokal then relayed to him
what had transpired during the crime.  According to Mosley, Kokal told him that
both he and O’Kelly had beaten Russell with the pool cue, and that both had beaten
and kicked Russell after he was lying on the beach.  However, Mosley testified that
Kokal informed him that it was he, Kokal, who had actually shot Russell in the
head.  According to Kokal, the motive was to rob the victim.  Mosley testified that
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when he asked Kokal why he had shot the victim, Kokal said “because dead men
can’t tell lies.”
Kokal was convicted of first-degree murder.  By a vote of twelve to zero the
jury recommended a sentence of death, which the judge imposed.  The jury’s
verdict on the first-degree murder charge included the specific finding that it was
Kokal who had shot Russell.  See Kokal I, 492 So. 2d at 1319.  O’Kelly pled guilty
to second-degree murder, agreed to testify truthfully if called, and received a
fourteen-year sentence.  We affirmed Kokal’s conviction and death sentence on
direct appeal.  See id. at 1320.
This Court denied rehearing in Kokal’s direct appeal on September 17, 1986.
Subsequently, on August 25, 1988, then-Governor Martinez signed Kokal’s death
warrant.  An initial postconviction motion was filed shortly thereafter, and the trial
court entered an order on October 12, 1988, staying the execution indefinitely and
scheduling an evidentiary hearing on the motion.  See State v. Kokal, 562 So. 2d
324, 325 (Fla. 1990) (hereinafter “Kokal II”).  Following litigation regarding a
public records issue, see id., an amended postconviction motion was filed on May
18, 1992.   In February 1997, an evidentiary hearing was held on Kokal’s amended
postconviction motion.  The trial court denied the motion, and Kokal appealed to
this Court, presenting four issues.  See Kokal v. Dugger, 718 So. 2d 138, 139 (Fla.
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1998) (hereinafter “Kokal III”).  With little discussion, we affirmed the denial of
Kokal’s postconviction motion.  See id. at 140-42.1
On August 16, 1999, Kokal filed a pro se successive postconviction motion
claiming actual innocence based upon newly discovered evidence.  The newly
discovered evidence relied upon by Kokal was an affidavit, written and signed by
Gary Hutto on August 10, 1999, in which Hutto claimed that Kokal’s codefendant,
William O’Kelly, was the actual perpetrator of the murder for which Kokal was
convicted.  Hutto explained that he had shared a jail cell with O’Kelly for
approximately two months in 1984, and that during that time O’Kelly detailed the
murder, admitted that he was the one who had actually shot Russell, and stated that
Kokal had not participated in the commission of the crime.
Importantly, Hutto’s affidavit implicating O’Kelly in the Russell homicide
was provided subsequent to an affidavit O’Kelly wrote, in which he implicated
Hutto in a separate murder.  See Kight v. State, 784 So. 2d 396 (Fla. 2001).
Charles Kight had been convicted of first-degree murder and sentenced to death.
See Kight, 784 So. 2d at 398.  However, like Kokal, Kight maintained that while
he was present during the murder, it was actually his codefendant, Gary Hutto,
who had committed the crime.  See id.  As Hutto would later do in the instant
1.   Kokal also petitioned this Court for a writ of habeas corpus, presenting
eight claims.  See Kokal III, 718 So. 2d at 139, 140 n.10.  We denied the habeas
petition.  See id. at 139.
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action, Kokal’s codefendant, O’Kelly, testified on behalf of Kight that Hutto had
confessed to him that it was he, Hutto, who had committed the murder for which
Kight had been convicted.  See id. at 399.  In a successive postconviction action,
Kight presented a newly discovered evidence claim based on an affidavit by
O’Kelly asserting that Hutto was the actual perpetrator.  See id.  The trial court
denied Kight relief, finding that while O’Kelly’s testimony implicated Hutto, it did
not absolve Kight.  See id.
The Office of the Capital Collateral Regional Counsel (CCRC) was
appointed to represent Kokal in his successive postconviction action.  The State
filed its answer to Kokal’s pro se postconviction motion on October 18, 1999.
After a series of delays, a Huff2 hearing was scheduled for April 6, 2000.  On April
3, 2000, Kokal filed an amended postconviction motion presenting four claims.3
On April 6, 2000, the day of the Huff hearing, the defense further filed a motion to
disqualify the judge, and on that same day, filed a motion to inspect, examine, and
test evidence, specifically the white Nike sneakers that Kokal was wearing the
2.   Huff v. State, 622 So. 2d 982 (Fla. 1993).
3.   The four claims presented by Kokal in his amended successive
postconviction motion were:   (1) newly discovered evidence; (2) ineffective
assistance of counsel during his first postconviction action; (3) execution by
electrocution constitutes cruel or unusual punishment or both; and (4) execution by
lethal injection is unconstitutional.
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night of the murder, to determine, through DNA testing, whether the blood on
those sneakers was that of the victim.
The only issues addressed at the Huff hearing on April 6 were Kokal’s
motion to disqualify the judge and whether an evidentiary hearing should be held
on Kokal’s claim of newly discovered evidence.  Following a discussion on both
issues, the judge requested additional briefing from the parties and postponed
ruling on any issue until he could determine the propriety of Kokal’s
disqualification motion.  Subsequently, both parties filed a memorandum regarding
the disqualification issue.  On June 30, 2000, Judge Carithers entered an order
denying Kokal’s motion to disqualify him.
With the disqualification issue settled, a second Huff hearing was held on
September 12, 2000, to determine whether an evidentiary hearing should be held
on the remaining claims presented in Kokal’s amended postconviction motion.
Additionally, at that hearing, Kokal’s attorney again referenced the DNA issue,
and requested the court’s permission to have an independent investigator inspect
the Nike sneakers Kokal was wearing the night of the murder to ascertain whether
they could be tested.  The court granted the defense access to the sneakers.
Following the Huff hearing, the judge ordered that an evidentiary hearing be held
with respect to Kokal’s newly discovered evidence claim and denied an evidentiary
hearing on Kokal’s remaining claims.
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The evidentiary hearing was held on October 31, 2000.  At the start of the
hearing, the DNA issue was again discussed.  Kokal’s attorney stated that he had
confirmed that morning that the sneakers were available for testing.4  Two
witnesses testified during the evidentiary hearing, Gary Hutto and a private
investigator, Jeff Walsh.  Walsh had worked for the attorney who represented
Kokal in his federal habeas proceedings, and at her direction had contacted Gary
Hutto.  Walsh testified that he contacted Hutto and asked if he had any information
regarding the Kokal case.  Hutto provided Walsh with the information that was
eventually written in the affidavit.
Hutto testified at the evidentiary hearing regarding what O’Kelly had
allegedly told him about the events of the Russell homicide.  Hutto maintained that
he was told by an assistant state attorney that O’Kelly had implicated him in the
Kight murder only after he had spoken to Walsh and written his affidavit
implicating O’Kelly.  Hutto stated that he did not care that O’Kelly had implicated
him because he, Hutto, was already serving time for the wrong that he had
committed.  Hutto further claimed that when Walsh first approached him, he did
not know on whose behalf Walsh was speaking to him, since Walsh simply asked
4.   It is not clear from the record what, if anything, the defense did from
September 12, 2000, to October 31, 2000, with respect to the DNA issue.
Although the defense requested access to the sneakers on September 12 so that
they could be evaluated by an independent investigator, it appears from the record
that that did not occur, as the defense did not even confirm the presence of the
sneakers in the clerk’s office until the morning of October 31.
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him if he knew anything about the “Kokal/O’Kelly case.”   However, Hutto
admitted that by the time he wrote and signed the affidavit, he knew that Walsh
was speaking with him on behalf of Kokal.
Prior to ruling on Kokal’s successive postconviction action, the judge held
another hearing on December 15, 2000, to address the DNA issue.  At that hearing,
Kokal’s attorney explained that she was having difficulty locating an expert who
could examine the sneakers to determine if they were suitable for DNA testing.
The attorney for the State noted that there was potentially no remaining sample of
the victim’s DNA to which a comparison could be made, even if the blood on the
sneakers could be tested.  Kokal’s attorney then stated that she did not know if any
substance suitable for comparison existed.   Assistant State Attorney Laura Starrett
then stated, “If we don’t have the victim’s blood, which we definitely do not have,
I’m not really sure where we are going with, or what you’re looking for.”  In
response, the judge asked, “Ms. Starrett, you’re telling me that there are no
remaining blood samples of the victim?” to which Assistant State Attorney Starrett
responded, “That’s correct.”  Despite that representation, the judge determined that
the next step was for Kokal’s attorney to send him a report regarding the results of
the independent expert’s analysis of the sneakers.
On January 25, 2001, Kokal’s attorney sent the judge a letter that read:
“After reviewing the [Florida Department of Law Enforcement] reports and based
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upon the State’s representation that the victim’s blood sample has been destroyed it
appears that at this time there is no sample with which to compare any potential
results.”  No further action was taken with respect to the DNA issue, and
subsequently, the judge entered his final order denying Kokal’s successive
postconviction motion.  Kokal filed a motion for rehearing, which was denied.
Kokal appealed the judge’s denial of his postconviction motion to this Court, and
oral argument was scheduled for November 4, 2002.
In early October 2002, Kokal filed with the trial court a motion for DNA
testing and in this Court a motion to hold oral argument in abeyance.  We granted
the motion to hold oral argument in abeyance and temporarily relinquished
jurisdiction to the trial court to resolve the DNA issue.  The trial court held a
hearing on November 13, 2002, to address the DNA issue.  Although the judge
expressed that he was surprised Kokal had filed the motion for DNA testing, as it
was his understanding that the DNA issue had been settled, he ordered the release
and DNA testing of the relevant evidence.
In April 2003, Kokal’s attorney filed a motion for an evidentiary hearing to
determine where the evidence collected in the homicide investigation was located.
In the motion, counsel asserted that in March 2003 she spoke with an analyst from
the Florida Department of Law Enforcement (hereinafter “FDLE”) who informed
her that the victim’s blood sample was no longer suitable for testing, but that she
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believed there was a saliva sample of the victim maintained by the Jacksonville
Sheriff’s Office that could be used for comparison testing.  Counsel was later
informed by a representative of the Jacksonville Sheriff’s Office that it did not
have a saliva sample.  Kokal’s counsel sought the evidentiary hearing to determine
the location of the saliva sample.5  The judge granted the motion, and an
evidentiary hearing was set for June 2003.  Following the hearing, the trial court
entered an order denying Kokal’s motion for DNA testing.6
ANALYSIS
Kokal presents five claims in this Court.  First, he appeals the trial court’s
denial of his motion to disqualify the trial judge.  Next, he appeals the denial of
three claims from his successive postconviction motion—the newly discovered
evidence claim, the ineffective assistance of postconviction counsel claim, and his
claim challenging the constitutionality of Florida’s death penalty statute.  Finally,
Kokal presents this Court with a due process challenge, asserting that his
constitutional rights were violated by the State’s failure to preserve evidence.
DISQUALIFICATION OF TRIAL JUDGE
5.   Prior to the hearing, Kokal filed another postconviction motion,
challenging the constitutionality of Florida’s death penalty statute in light of the
United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002).
6.   In a later order, the court also denied Kokal’s Ring claim asserted in the
successive postconviction motion.  Kokal filed a motion for rehearing on the Ring
issue, which the court denied.
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As noted above, the initial Huff hearing to address Kokal’s postconviction
motion was held on April 6, 2000.  On that same day, Kokal filed his Motion to
Disqualify Judge and Supporting Memorandum of Law.  The court and the parties
discussed the motion, despite the fact that the judge and State had just received the
motion,7 and the State had not had an opportunity to respond.  In his motion, Kokal
argued that Judge Carithers could not be impartial because he had also presided
over, at the trial level, the postconviction action in Kight v. State, 784 So. 2d 396
(Fla. 2001), in which Kokal’s codefendant, O’Kelly, had testified on behalf of
Kight, implicating Gary Hutto in the murder for which Kight had been convicted.
Kokal’s motion to disqualify Judge Carithers in the instant action asserted that the
judge could not be impartial because during his testimony in the Kight matter,
O’Kelly had professed his innocence to the murder for which Kokal had been
convicted, and testified that he had never committed murder.  In the instant action,
Hutto’s affidavit stated that O’Kelly was the actual perpetrator of the murder for
which Kokal had been convicted.  Kokal contended that it would constitute at least
an appearance of impropriety for Judge Carithers to continue presiding over
Kokal’s postconviction action because Judge Carithers would be required to
determine the credibility of both Gary Hutto and William O’Kelly, and the judge
7.   Both the court and the State noted for the record that they had just
received the motion approximately thirty minutes before the hearing began.  The
state attorney noted that he had only had the opportunity to scan through the
motion.
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had already determined, in the Kight action, that O’Kelly was credible when he
testified there that he had never committed murder.
At the April 6 Huff hearing in Kokal’s action, Judge Carithers expressed that
it was his “gut reaction” that Kokal’s motion to disqualify turned on whether or not
he would be called upon to judge the credibility of Hutto.  However, he requested
that the parties submit briefs regarding whether he should recuse himself even if an
evidentiary hearing would not be held on the newly discovered evidence claim.
Both parties submitted briefs as requested by the trial court.  Notably, the State
argued that the motion was both untimely and meritless.  The State highlighted that
Kokal’s motion was a successive motion to disqualify, a fact apparently unknown
to the judge during the initial hearing on the motion.  Subsequently, the trial court
denied Kokal’s motion to disqualify.  Initially, the judge ruled that the motion
“may have been untimely” because the facts constituting the grounds for the
motion were in the possession of Kokal’s counsel months before the motion was
filed.8  The judge then ruled that regardless of the timeliness issue, because
Kokal’s motion was a successive disqualification motion, the court could rule on
the merits of the motion.   The court then wrote:   “After careful consideration of the
matters raised in Defendant’s Motion to Disqualify, the Court has determined that
8.   In the State’s answer to Kokal’s pro se successive postconviction motion,
filed October 18, 1999, the State noted that O’Kelly had testified in the Kight
action, and that Judge Carithers had presided over that action.
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it remains, and will continue to be, an impartial arbitrator as to Mr. Kokal’s
pending Rule 3.850 motion.  Specifically, the Court finds that it is not true that it
‘cannot be impartial’ because of the potential testimony of William Robert
O’Kelly, Jr. herein.”9
Substantively, the disqualification of a judge is controlled by section 38.10
of the Florida Statutes, while procedurally it is controlled by rule 2.160 of the
Florida Rules of Judicial Administration.   Also relevant is Canon 3E of the Florida
Code of Judicial Conduct.  Both section 38.10 and rule 2.160 provide that a
different standard should be utilized for a successive disqualification motion than
is used for an initial motion.  Section 38.10 provides, in relevant part:
[W]hen any party to any action has suggested the disqualification of a
trial judge and an order has been made admitting the disqualification
of such judge and another judge has been assigned and transferred to
act in lieu of the judge so held to be disqualified, the judge so
assigned and transferred is not disqualified on account of alleged
prejudice against the party making the suggestion in the first instance,
or in favor of the adverse party, unless such judge admits and holds
that it is then a fact that he or she does not stand fair and impartial
between the parties.
§ 38.10, Fla. Stat. (2003).  Similarly, rule 2.160 provides:
(g) Determination--Successive Motions.  If a judge has been
previously disqualified on motion for alleged prejudice or partiality
under subdivision (d)(1), a successor judge shall not be disqualified
based on a successive motion by the same party unless the successor
9.   Although the judge referred to the “potential testimony of William Robert
O’Kelly, Jr.,” he meant the potential testimony of Gary Hutto, who would be the
one to actually testify at an evidentiary hearing.
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judge rules that he or she is in fact not fair or impartial in the case.
Such a successor judge may pass on the truth of the facts alleged in
support of the motion.
Fla. R. Jud. Admin. 2.160(g).  Finally, Canon 3E of Florida’s Code of Judicial
Conduct provides, in relevant part:
(1) A judge shall disqualify himself or herself in a proceeding
in which the judge’s impartiality might reasonably be questioned,
including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party
or a party’s lawyer, or personal knowledge of disputed evidentiary
facts concerning the proceeding; . . .
Fla. Code Jud. Conduct, Canon 3E.
During the course of his first postconviction action, Kokal filed two motions
to dismiss the presiding judge, one of which was successful.  First, in May 1992,
Kokal moved to disqualify the initial judge, Circuit Judge David C. Wiggins, from
presiding over Kokal’s postconviction action, and Judge Wiggins granted that
motion.  Then, in October 1993, Kokal moved to disqualify the second judge,
Circuit Judge Robert M. Foster.  Although Judge Foster denied the motion, he was
subsequently replaced by Circuit Judge Aaron K. Bowden.  Finally, in March
1994, Judge Bowden, sua sponte, recused himself and was replaced by Judge
Carithers, who ultimately presided over Kokal’s first postconviction action, and the
instant successive postconviction action.  Kokal does not dispute that Judge
Carithers is a successive judge.  Therefore, the trial court, in its order denying
Kokal’s motion for disqualification, properly used the more stringent standard for a
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successive disqualification motion, and this Court’s standard of review of that
denial is “whether the record clearly refutes the successor judge’s decision to deny
the motion.”  Pinfield v. State, 710 So. 2d 201, 202 (Fla. 5th DCA 1998); see also
King v. State, 840 So. 2d 1047, 1049 (Fla. 2003) (“An order denying a motion
pursuant to rule 2.160(g) is reviewed for abuse of discretion.”); Quince v. State,
732 So. 2d 1059, 1062 (Fla. 1999) (“A court’s ruling on a discretionary matter will
be sustained unless no reasonable person would take the view adopted by the
court.”).
Initially, the State maintains that Kokal’s motion was untimely.  Rule 2.160
provides:   “A motion to disqualify shall be filed within a reasonable time not to
exceed 10 days after discovery of the facts constituting the grounds for the
motion . . .                                                                            .”  Fla. R. Jud. Admin. 2.160(e).  The trial court found that Kokal’s
motion “may have been untimely” because Kokal knew that Judge Carithers had
presided over the Kight postconviction action for at least five months.  Irrespective
of the timeliness of Kokal’s motion, because it is clear from the face of the motion
that the disqualification of Judge Carithers was not warranted, we affirm the
judge’s order denying Kokal’s motion.
Kokal contends that Judge Carithers should have been disqualified because
he presided over the Kight postconviction action and, more specifically, because of
the testimony presented by Kokal’s codefendant, O’Kelly, during that proceeding.
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In his motion, Kokal asserted that Judge Carithers could not be impartial because
in Kight he had to consider the credibility of both O’Kelly and Hutto, and there he
determined O’Kelly to be credible and Hutto not.  In the instant action, Judge
Carithers was once again faced with considering the credibility of O’Kelly and
Hutto.  On the asserted grounds, the trial judge did not abuse his discretion by
denying Kokal’s motion and finding that he could be impartial.  This Court has
held that
[t]he fact that a judge has previously made adverse rulings is not an
adequate ground for recusal.  Nor is the mere fact that a judge has
previously heard the evidence a legally sufficient basis for recusal.
Likewise, allegations that the trial judge had formed a fixed opinion of
the defendant’s guilt, even where it is alleged that the judge discussed
his opinion with others, is generally legally insufficient to mandate
disqualification.
Jackson v. State, 599 So. 2d 103, 107 (Fla. 1992) (citations omitted); see also
Thompson v. State, 759 So. 2d 650, 659 (Fla. 2000).  In Jackson, the defendant
argued that the trial judge should be recused because he had heard the case no less
than five times, including two trials of Jackson’s codefendant.  See Jackson, 599
So. 2d at 107.  Based upon the less stringent standard applied to initial motions for
disqualification, the trial court denied the motion, finding it legally insufficient.
See id.   We agreed.   See id.  Likewise, here, Kokal’s motion was properly denied
because his asserted justification for the motion was legally insufficient.  The fact
that Judge Carithers had previously determined that O’Kelly was being truthful in
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the Kight action is not a legally sufficient ground for disqualification.   Kokal’s
asserted grounds for disqualification do not satisfy the less stringent standard of
legal sufficiency applied to an initial motion for disqualification.  Therefore, as he
does not satisfy the lower standard, he certainly does not satisfy the more stringent
standard applied to a successive motion.   The trial court did not err in denying
Kokal’s motion to disqualify Judge Carithers.
NEWLY DISCOVERED EVIDENCE
In his next claim, Kokal asserts that the trial court erred in denying his claim
of newly discovered evidence of actual innocence.  To obtain relief on this claim
Kokal had to demonstrate:   (1) that the newly discovered evidence was unknown to
the defendant or the defendant’s counsel at the time of trial and could not have
been discovered through due diligence, and (2) that the evidence is of such a nature
that it would probably produce an acquittal upon retrial.  See Mills v. State, 786
So. 2d 547, 549 (Fla. 2001); Jones v. State, 709 So. 2d 512, 521 (Fla. 1998).  With
respect to the first prong, the trial court properly found that the evidence Kokal
presented was unknown at the time of Kokal’s trial, and neither Kokal nor his
counsel could have discovered it through due diligence.  Kokal’s trial was held in
1984, but Hutto did not sign his affidavit attesting that O’Kelly had confessed that
it was he, and not Kokal, who had actually killed Russell until 1999.  Therefore,
the trial court’s ruling with respect to the first prong was correct.
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Turning to the second prong of the newly discovered evidence test, the lower
court concluded that O’Kelly’s alleged confession to Hutto probably would not
produce an acquittal upon retrial.  The court’s ruling was not erroneous.  In
reviewing a claim of newly discovered evidence, a trial court is required to
“‘consider all newly discovered evidence which would be admissible’ at trial and
then evaluate the ‘weight of both the newly discovered evidence and the evidence
which was introduced at the trial.’”  Jones, 709 So. 2d at 521 (quoting Jones v.
State, 591 So. 2d 911, 916 (Fla. 1991)) (emphasis supplied).  Initially, we note that
Hutto’s testimony would not have been admissible as substantive evidence at trial,
because it constituted inadmissible hearsay.  See Jones v. State, 678 So. 2d 309,
313 (Fla. 1996).  Further, O’Kelly’s alleged confession is not admissible pursuant
to the statement against interest exception to the hearsay rule, since Kokal has
failed to demonstrate that O’Kelly is unavailable to testify.  See id.
Even if Hutto’s testimony was admissible for the limited purpose of
impeaching O’Kelly’s credibility, the testimony is not of such a nature that it
would probably produce an acquittal upon retrial.  As the trial court correctly
recognized, Hutto is “highly impeachable,” because he has a clear motive of
revenge.  William O’Kelly previously testified on behalf of Charles Kight and
implicated Hutto in the homicide for which Kight was convicted and sentenced to
death.  The trial court wrote:
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Since Mr. O’Kelly’s alleged remarks to Mr. Hutto would have been
made before Mr. Hutto’s sentencing in his criminal case, it is hard to
understand why he would come forward with the evidence now, rather
than when it could have helped him in his own sentencing.  The
implication is clear, notwithstanding Mr. Hutto’s testimony to the
contrary, that he only came forward with evidence against Mr.
O’Kelly in this case because Mr. O’Kelly had come forward with
evidence against Mr. Hutto in the case of Charles Kight.
We agree with this conclusion.  Hutto’s motives in providing an affidavit
implicating O’Kelly in the Russell murder are highly suspect in light of O’Kelly’s
testimony in Kight.
More significant than the fact that Hutto could be easily impeached is the
fact that Hutto’s testimony contradicts other evidence presented at trial, most
notably the testimony of Kokal himself.  In his version of events, Hutto claims that
O’Kelly told him that Kokal remained in the truck throughout the beating and
murder.   However, Kokal himself testified at trial that he did not stay in the truck
throughout the attack; rather, that after the initial beating occurred he walked down
the beach with the victim and O’Kelly before O’Kelly shot Russell.  Further, Kokal
explained that the victim’s blood spattered on his sneaker when he was standing
six to nine feet away from the victim as O’Kelly beat him.   Hutto’s testimony also
contradicts that of Eugene Mosley, who testified that Kokal confessed to him.   In
contrast to Hutto’s testimony, Mosley testified that Kokal told him that both he and
O’Kelly beat the victim, but that it was he, Kokal, who actually shot Russell.
Mosley’s testimony is unquestionably more reliable, because it was given shortly
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after the murder occurred and because Mosley, a friend of Kokal’s who was in no
way involved in the crime, had no ulterior motive behind his testimony, unlike
Hutto.
Finally, in conducting a cumulative analysis of newly discovered evidence,
we must evaluate the newly discovered evidence in conjunction with the evidence
submitted at trial and the evidence presented at prior evidentiary hearings.
See Jones, 709 So. 2d at 522.  Here, the trial court determined that “acquittal on
retrial in light of all the other trial evidence, and all of the new evidence, is
virtually inconceivable.”  At trial, evidence was presented that Kokal had
bloodstains consistent with the victim’s blood type on his shoes the morning after
the murder.  Further, Kokal’s fingerprints were on the murder weapon, Kokal had
the victim’s driver’s license after the murder, and Kokal confessed to Mosley that
he had killed the victim.   Kokal has failed to meet the second prong of the newly
discovered evidence test because he cannot demonstrate that Hutto’s testimony
would probably produce an acquittal or a life sentence upon retrial.  The
overwhelming evidence of Kokal’s guilt supports the trial court’s denial of relief.
Accordingly, the trial court correctly determined that Kokal is not entitled to a new
trial or penalty phase on the basis of his claim of newly discovered evidence.
INEFFECTIVE ASSISTANCE OF POSTCONVICTION COUNSEL
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The trial court did not err in refusing to grant Kokal an evidentiary hearing
on his claim of ineffective assistance of postconviction counsel.  As we have
repeatedly held:   “Under rule 3.850, a postconviction defendant is entitled to an
evidentiary hearing unless the motion and record conclusively show that the
defendant is entitled to no relief.”  Lawrence v. State, 831 So. 2d 121, 132 (2002)
(quoting Floyd v. State, 808 So. 2d 175, 182 (Fla. 2002)).  Based upon our
precedent regarding claims of ineffective assistance of postconviction counsel, and
the record of Kokal’s first postconviction action which conclusively demonstrates
that Kokal was provided meaningful access to the judicial process, it is
unquestionable that Kokal was not entitled to relief on this claim and, therefore, it
was not error for the trial court to deny him an evidentiary hearing.
We have repeatedly held that claims of ineffective assistance of
postconviction counsel are not cognizable.  See Foster v. State, 810 So. 2d 910,
917 (Fla. 2002); King v. State, 808 So. 2d 1237, 1245 (Fla. 2002); Waterhouse v.
State, 792 So. 2d 1176, 1193 (Fla. 2001); Lambrix v. State, 698 So. 2d 247, 248
(Fla. 1996).  As recognized by both this Court and the United States Supreme
Court, “defendants have no constitutional right to representation in postconviction
relief proceedings.”  State ex rel. Butterworth v. Kenny, 714 So. 2d 404, 407 (Fla.
1998); see also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).  As we
explained in Butterworth:   “All that is required in postconviction relief
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proceedings, whether capital or non-capital, is that the defendant have meaningful
access to the judicial process.”  Butterworth, 714 So. 2d at 408.  Notably, by
statute, claims of ineffective assistance of postconviction counsel are barred in
federal court.  See 28 U.S.C. § 2254(i) (2000) (“The ineffectiveness or
incompetence of counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding arising under section
2254.”).  Because Kokal does not possess a constitutional right to postconviction
counsel, and further, because we have refused to recognize claims of ineffective
assistance of postconviction counsel, Kokal’s claim regarding the ineffectiveness
of counsel’s representation of Kokal during his first postconviction litigation was
properly summarily denied.
In his brief to this Court, Kokal relies upon our order in Fotopoulos v. State,
741 So. 2d 1135 (Fla. 1999) (table report of unpublished order), and our decision
in Peede v. State, 748 So. 2d 253 (Fla. 1999), to support his claim.  Kokal contends
that in those cases, the death-sentenced defendants was, in effect, given a second
chance on their postconviction motions due to ineffectiveness on the part of
postconviction trial counsel.  Kokal’s argument is misplaced.  Neither Fotopoulos
nor Peede involved claims of ineffective assistance of postconviction counsel.
Rather, in Fotopoulos, this Court recognized that during oral argument of the
postconviction appeal, counsel raised claims not raised at the trial level.   Therefore,
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we dismissed the appeal and allowed Fotopoulos to file a successive, although
limited, postconviction motion.  See Fotopoulos v. State, No. 91,227 (Fla. order
filed Aug. 25, 1999).  The order entered in Fotopoulos did not address the issue of
ineffective assistance of counsel during postconviction litigation.  Further,
although this Court, in Peede, did briefly address the failures of Peede’s
postconviction representation, see Peede, 748 So. 2d at 256 n.5, we remanded the
cause to the trial court because that court had failed to hold an evidentiary hearing
on many of Peede’s claims.  We did not allow Peede to file a successive
postconviction motion to argue ineffective assistance of his first postconviction
counsel, as Kokal has done.  The cases of Fotopoulos and Peede differ significantly
from the procedural posture presented here, and therefore offer Kokal no support.
Kokal is requesting that this Court recognize a claim of ineffective
assistance of postconviction counsel, which we have consistently been unwilling to
do.  Allowing Kokal’s claim to survive will open this Court to a barrage of claims
from all inmates, seeking successive postconviction hearings due to the purported
ineffective assistance of initial postconviction counsel.  Because a defendant does
not have a constitutional right to counsel during postconviction proceedings, he
clearly does not have a claim for ineffective postconviction representation.
In a postconviction proceeding, all that due process requires is that the
defendant be provided meaningful access to the judicial process.  See Butterworth,
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714 So. 2d at 408.  Here, Jefferson Morrow represented Kokal in his first
postconviction action and appeal, and it is clear that Morrow’s representation did
not rise to the level of complete abandonment of his client and that Kokal was
provided meaningful access to the judicial process.
Following this Court’s denial of rehearing in Kokal’s direct appeal action,
then-Governor Martinez signed Kokal’s death warrant.  A postconviction motion
was quickly filed on Kokal’s behalf, and the trial court entered an order on October
12, 1988, staying the execution indefinitely and ordering an evidentiary hearing on
the postconviction motion.  See Kokal II, 562 So. 2d at 325.  Subsequently, an
amended postconviction motion was filed on May 18, 1992.  Although Kokal was
initially represented by CCRC, a conflict forced CCRC to withdraw in 1996, and
Morrow was subsequently appointed to represent Kokal.  In February 1997, an
evidentiary hearing was held on Kokal’s amended postconviction motion.  At that
hearing, Morrow presented six witnesses, including two mental health experts;
Kokal’s mother and father; an assistant public defender; and Dale Westling,
Kokal’s trial attorney.  The transcript of the evidentiary hearing reveals that
Morrow questioned the witnesses at length and entered numerous objections—
some sustained, some overruled—to questions posed on cross-examination by the
State.  Further, Morrow filed a lengthy post-evidentiary hearing written closing
argument.  After the trial court denied Kokal’s postconviction motion, Morrow
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filed a timely notice of appeal to this Court and continued to represent Kokal
through that appeal.  Morrow’s brief to this Court was over fifty pages in length
and presented four claims.  Additionally, Morrow moved to supplement the record
on appeal to ensure that this Court had Kokal’s medical records to support one of
the claims on appeal.  While an attorney’s actions can always be challenged in
hindsight, it is clear here that Kokal was not denied due process during his first
postconviction action, since he unquestionably was not denied meaningful access
to the courts as a result of his counsel’s actions.  Therefore, this claim was properly
denied by the trial court.
STATE’S FAILURE TO PRESERVE EVIDENCE
Kokal’s fourth claim is that the State violated his due process rights by
failing to preserve evidence that could potentially have been subjected to DNA
testing.  The precise claim that Kokal presents to this Court, however, was not
litigated below.  We have repeatedly held that “[i]n order to preserve an issue for
appellate review, the specific legal argument or ground upon which it is based
must be presented to the trial court.”  Bertolotti v. Dugger, 514 So. 2d 1095, 1096
(Fla. 1987) (emphasis supplied); see also Anderson v. State, 863 So. 2d 169, 181
(Fla. 2003), cert. denied, 124 S. Ct. 1662 (2004).  Since Kokal did not present this
specific claim below, it is procedurally barred.
- 27 -

On April 6, 2000, Kokal filed with the trial court a motion to inspect,
examine, and perform DNA testing of the evidence.  He sought to have the blood
that was found on his sneakers after the murder compared to a sample of the
victim’s DNA.  Over the course of the next nine months, several discussions were
had at various hearings regarding the location of the evidence to be tested and
whether the sneakers even contained enough blood evidence to be tested.  The
matter culminated in a letter written by Kokal’s postconviction counsel to the trial
judge that read:   “After reviewing the FDLE reports and based upon the State’s
representation that the victim’s blood sample has been destroyed it appears at this
time that there is no sample with which to compare any potential test results.”  No
further action was taken with respect to the DNA issue, and the judge entered his
final order denying Kokal’s successive postconviction motion on February 12,
2001, and Kokal began the process of appealing that denial to this Court.
Before Kokal’s appeal could be considered by this Court, Kokal filed in the
trial court a motion for DNA testing and in this Court a motion to hold oral
argument in abeyance.  This Court granted the motion to hold oral argument in
abeyance and temporarily relinquished jurisdiction to the trial court to resolve the
DNA issue.  The trial court ordered the release and DNA testing of the relevant
evidence.  Subsequently, Kokal’s attorney filed a motion for an evidentiary hearing
to determine where the evidence collected in the homicide investigation was
- 28 -

located.  In that motion, counsel represented to the court that she had been
informed by the FDLE that the victim’s blood sample was no longer suitable for
testing, but that a saliva sample of the victim had been taken and could be used for
comparison testing.  However, counsel had been unable to locate the saliva sample.
The judge granted the motion, and an evidentiary hearing was held in June 2003 to
attempt to determine the location of the saliva sample.
On July 3, 2003, the trial court entered its order on Kokal’s motion for DNA
testing.  Based upon the representations by the defense regarding the blood and
saliva samples, the court found that the victim’s blood sample had degraded to
such a condition that DNA testing was not possible.  Further, the court found that
the saliva sample no longer existed and that it was last known to be in the
possession of the FDLE on May 1, 1984.  The court held that because the blood
and saliva were not available, there was no sample of the victim’s DNA to use for
comparison.  Importantly, the court also found that even if DNA evidence had
demonstrated that the blood on Kokal’s sneakers was not that of the victim, it was
not reasonably possible that Kokal would have been acquitted or would have
received a lesser sentence had that evidence been admitted at trial, since there was
overwhelming evidence against Kokal, including his own admission of guilt.
Clearly, Kokal’s motion below, denied by the trial court, was a request for
access to evidence and for DNA testing.   However, here, rather than appeal the
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trial court’s denial of his motion for DNA testing, Kokal now argues that his due
process rights were violated by the State’s failure to preserve the relevant evidence,
namely the blood and saliva samples from the victim.  This issue was not presented
below, and, therefore, no evidentiary hearing was held to address this claim, and
the trial court made no ruling with respect to the State’s preservation, or lack
thereof, of the blood and saliva samples.   In support of his claim in this Court,
Kokal relies upon facts not in evidence.   The State has had virtually no opportunity
to challenge many of the facts that Kokal relies upon to support his claim, has had
no opportunity to interview potential witnesses or present a response beyond that
presented in its answer brief to this Court.  Because Kokal failed to present in the
trial court the specific legal argument he now raises here, this claim is procedurally
barred.  See Bertolotti, 514 So. 2d at 1096.  Kokal has not challenged the trial
court’s order denying his motion for DNA testing, and our review of the record
reveals that Kokal’s motion was not improperly denied.
CONSTITUTIONALITY OF FLORIDA’S DEATH PENALTY STATUTE
Kokal’s claim that Florida’s death penalty sentencing scheme is
unconstitutional under the United States Supreme Court’s recent decision in Ring
v. Arizona, 536 U.S. 584 (2002), is without merit.   This Court recently addressed
Kokal’s contention in Bottoson v. Moore, 833 So. 2d 693 (Fla.), cert. denied, 537
U.S. 1070 (2002), and King v. Moore, 831 So. 2d 143 (Fla.), cert. denied, 537 U.S.
- 30 -

1067 (2002), and denied relief.  Kokal is likewise not entitled to relief on this
claim.
CONCLUSION
In summary, we affirm the trial court’s denial of Kokal’s motion to
disqualify the trial judge, and further affirm the court’s denial of Kokal’s
successive postconviction motion.  Finally, we reject as procedurally barred
Kokal’s due process claim based upon the State’s alleged failure to preserve
evidence.
It is so ordered.
PARIENTE, C.J., and WELLS, LEWIS, QUINCE, CANTERO, and BELL, JJ.,
concur.
PARIENTE, C.J., concurs specially with an opinion, in which CANTERO and
BELL, JJ., concur.
ANSTEAD, J., concurs in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, C.J., specially concurring.
I concur in the majority opinion and write separately to explain the grounds
on which I concur in the denial of relief under Ring v. Arizona, 536 U.S. 584
(2002).   A majority of this Court has now concluded that Ring does not apply
retroactively in Florida to cases that are final, under the test of Witt v. State, 387
So. 2d 922 (Fla. 1980).  See Monlyn v. State, 29 Fla. L. Weekly S741, S743-44
- 31 -

(Fla. Dec. 2, 2004) (Pariente, C.J., specially concurring, with Quince, J.,
concurring) (Cantero, J., concurring, with Wells and Bell, JJ., concurring).
Accordingly, Kokal’s Ring claim is procedurally barred in postconviction
proceedings.
Independent of the procedural bar, the unanimous death recommendation in
this case satisfies Ring’s requirement that the jury find an aggravating
circumstance necessary for imposition of the death sentence.  This Court has
previously relied in part on unanimous death recommendations in denying relief
under Ring.  See Anderson v. State, 863 So. 2d 169, 189 (Fla. 2003), cert. denied,
124 S. Ct. 1662 (2004); Rivera v. State, 859 So. 2d 495, 508 (Fla. 2003).
CANTERO and BELL, JJ., concur.
An Appeal from the Circuit Court in and for Duval County,
Hugh A. Carithers, Jr., Judge - Case No. 83-8975 CF
Michael P. Reiter, Capital Collateral Regional Counsel and Linda McDermott,
Assistant CCRC, Northern Region, Tallahassee, Florida,
for Appellant
Charles J. Crist, Jr., Attorney General and Curtis M. French, Senior Assistant
Attorney General, Tallahassee, Florida,
for Appellee
- 32 -

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