SC09-839 – David Eugene Johnston v. State of Florida

SUPREME COURT CASES

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State: Florida

Court: Supreme Court

Docket No: sc09-839

Case Date: 01/21/2010

Plaintiff: SC09-839 – David Eugene Johnston

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC09-839
DAVID EUGENE JOHNSTON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 21, 2010]
PER CURIAM.
David Eugene Johnston, a prisoner under sentence of death, appeals the
postconviction court‘s order denying his fourth and fifth successive motions for
postconviction relief, filed under Florida Rule of Criminal Procedure 3.851.  We
have jurisdiction.  Art. V, § 3(b)(1), Fla. Const.  For the reasons explained below,
we affirm the postconviction court‘s orders denying Johnston‘s successive motions
for postconviction relief.
FACTS AND PROCEDURAL HISTORY
On May 18, 1984, Johnston was convicted of the first-degree murder of
Mary Hammond, which occurred on November 5, 1983, in Orange County,

Florida.  After a jury trial, the trial court sentenced Johnston to death.  His
conviction and sentence were affirmed by this Court on direct appeal.  Johnston v.
State, 497 So. 2d 863 (Fla. 1986).  The facts and circumstances of the murder are
summarized as follows:
At approximately 3:30 a.m. on November 5, 1983, David
Eugene Johnston called the Orlando Police Department, identified
himself as Martin White, and told the police ―somebody killed my
grandma‖ at 406 E. Ridgewood Avenue.  Upon their arrival, the
officers found the dead body of 84-year-old Mary Hammond.  The
victim‘s body revealed numerous stab wounds as well as evidence of
manual strangulation.  The police arrested Johnston after noticing that
his clothes were blood-stained, his face was scratched and his
conversations with the various officers at the scene of the crime
revealed several discrepancies as to his account of the evening‘s
events.
The record reveals that prior to the murder Johnston had been
working at a demolition site near the victim‘s home and had had
contact with the victim during that time.  In fact, Johnston was seen
washing dishes in the victim‘s apartment five nights before the
murder.
Johnston was seen earlier on the evening of the murder without
any scratches on his face and the clothing he was wearing tested
positive for blood.  In addition, the watch that Johnston was seen
wearing as late as 1:45 a.m. on the morning of the murder was found
covered with blood on the bathroom countertop in the victim‘s home.
Further, a butterfly pendant that Johnston was seen wearing as late as
2:00 a.m. that morning was found entangled in the victim‘s hair.  The
record also reveals that a reddish-brown stained butcher-type knife
was found between the mattress and the boxspring of the victim‘s bed,
a footprint matching Johnston‘s was found outside the kitchen
window of the victim‘s house, and that silver tableware, flatware, a
silver candlestick, a wine bottle and a brass teapot belonging to the
victim were found in a pillowcase located in the front-end loader
parked at the demolition site.
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Id. at 865.  Johnston gave the police a number of different statements about his
interactions with victim.  In his statements to police, Johnston said he went by the
victim‘s home in the early morning hours of November 5, 1983, and saw lights on
in the apartment.  He said he went into the unlocked apartment to check on Mary
Hammond, but the evidence also showed that a window to the apartment was
broken and a key case belonging to the victim was found outside the apartment.
Johnston also told police conflicting stories about seeing a man running from the
apartment.    Although Johnston first told police he found the victim dead, he later
said he found her alive but injured on her bed, where he spoke to her and cradled
her head.  He said that after he got blood on himself, he washed it off in the
victim‘s bathroom.  The jury convicted Johnston of first-degree murder and, after a
penalty phase proceeding, recommended a death sentence by an eight-to-four vote.
Governor Martinez signed the first warrant for Johnston‘s execution on
October 28, 1988, but the execution was stayed after Johnston filed his initial
motion for postconviction relief and petition for habeas corpus.  This Court
affirmed denial of Johnston‘s postconviction claims relating to his competency to
stand trial, claims of ineffective assistance of trial counsel, and several
constitutional challenges to his sentence of death, and we denied habeas relief.
Johnston v. Dugger, 583 So. 2d 657 (Fla. 1991).  Subsequently, Johnston filed a
petition for writ of habeas corpus in the federal district court raising claims of
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ineffective assistance of counsel, competency, and constitutional claims relating to
the penalty phase.  That petition was denied and the denial was affirmed by the
Eleventh Circuit Court of Appeals.  Johnston v. Singletary, 162 F.3d 630, 632
(11th Cir. 1998).
This Court subsequently affirmed denial of Johnston‘s second motion for
postconviction relief and denied his second petition for habeas corpus, in which he
raised claims relating to competency, ineffective assistance of counsel in the
penalty phase, trial court errors in the penalty phase, and issues relating to the
sentencing factors.  Johnston v. State, 708 So. 2d 590 (Fla. 1998).  After this Court
issued its decision in Stephens v. State, 748 So. 2d 1028, 1033-34 (Fla. 1999),
which clarified the standard to be used in reviewing ineffective assistance of
counsel claims, Johnston filed another petition for writ of habeas corpus in this
Court, arguing that Stephens should apply retroactively to his case.  Relief was
denied in Johnston v. Moore, 789 So. 2d 262, 263 (Fla. 2001).
In June 2002, Johnston filed a third motion to vacate judgment of conviction
and sentence, asserting that he is mentally retarded and that his execution would
violate his constitutional rights under the holding of the United States Supreme
Court in Atkins v. Virginia, 536 U.S. 304 (2002), which held that it is
unconstitutional to execute a person who is mentally retarded; and in August 2002,
Johnston added a challenge to the constitutionality of his death sentence in
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response to the United States Supreme Court‘s decision in Ring v. Arizona, 536
U.S. 584 (2002), which held that a defendant has a Sixth Amendment right to have
a jury find all facts upon which the Legislature conditions an increase in the
maximum punishment.  See id. at 589.  We affirmed denial of the Atkins and Ring
claims in Johnston v. State, 960 So. 2d 757, 758 (Fla. 2006).
On April 20, 2009, Governor Charlie Crist signed a second death warrant
authorizing Johnston‘s execution.  Johnston was appointed new counsel, who then
filed a fourth successive motion for postconviction relief in the trial court raising
five claims and two motions.1  In addition to his successive postconviction claims,
he filed a motion for DNA testing under Florida Rule of Criminal Procedure 3.853
seeking testing of certain items of clothing and the fingernail clippings taken from
1.  The issues raised in the instant postconviction proceeding were: (1) a
motion for DNA testing of items bearing evidence of human blood and for DNA
testing of the fingernail clippings taken from the victim; (2) newly discovered
evidence consisting of a recent report by the National Academy of Sciences, titled
Strengthening Forensic Science in the United States: A Path Forward, reveals
Johnston‘s conviction was based on infirm forensic evidence; (3) a motion for
production of latent fingerprints, a pair of his shoes, and plaster casts of shoeprints
in evidence at trial, for additional forensic testing; (4) the clemency process is
arbitrary and capricious in violation of the constitution; (5) Johnston is exempt
from execution because he is severely mentally ill; (6) the death penalty is now
unconstitutional and violates binding international law because of the inordinate
length of time he has been on death row; and (7) the shackling of Johnston at trial
violated the constitution.
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the victim.2    Johnston also moved for production of other evidentiary items on
which he sought to have additional forensic testing performed.  On May 8, 2009,
the postconviction court denied the motion for DNA testing and the motion for
production of evidence for forensic testing.  The court also denied relief on the
remainder of the claims.  Johnston then filed this appeal.  After oral argument was
held, we granted a stay of execution on May 21, 2009, and relinquished
jurisdiction to the trial court for ninety days for DNA testing of the victim‘s
fingernail clippings and certain items of Johnston‘s clothing said to bear
indications of blood.
The postconviction court directed the Florida Department of Law
Enforcement (FDLE) to conduct DNA testing on the items of clothing and the
2.  Rule 3.853 originally contained a deadline for filing motions for
postconviction DNA testing of October 1, 2003.  That was later extended to
October 1, 2005.  Prior to expiration of the October 1, 2005, deadline, the Court on
September 29, 2005, issued an order amending rule 3.853(d), extending the
deadline to July 1, 2006.  The Legislature then enacted chapter 2006-292, Laws of
Florida (the Act), which amended chapter 925, Florida Statutes.  The Act removed
the deadline for filing postconviction DNA motions, and the Court responded by
adopting the amendment to rule 3.853(d) in In re Amendments to Fla. Rule of
Criminal Procedure 3.853(d), 938 So. 2d 977 (Fla. 2006).  In 2007, rule 3.853 was
amended to state that the motion may be filed or considered at any time after the
judgment and sentence become final, as the statute provides.  See In re
Amendments to Fla. Rules of Criminal Procedure 3.170 & 3.172, 953 So. 2d 513
(Fla. 2007).  However, we urge postconviction counsel to file any viable motion
for DNA testing at the earliest opportunity and not wait until the eve of execution
to determine that DNA testing is necessary.
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victim‘s fingernail clippings.  After that testing, the FDLE report was submitted
stating in part that no blood could be found on the items of clothing and
accordingly, no DNA testing was performed on the clothing.  Based on the FDLE
lab report, Johnston filed a fifth successive motion for postconviction relief,
alleging that the FDLE lab report was newly discovered evidence that proved there
was no blood on his clothes, which if introduced at trial would probably have
resulted in an acquittal.  The victim‘s fingernail clippings were tested for DNA by
FDLE but the lab could not obtain a complete DNA profile.  FDLE could only say
that the material under the victim‘s fingernails came from a male.  FDLE also
reported that it did not have the capability of performing the Y-STR DNA testing
necessary to develop a complete profile of that male DNA and recommended that
the Y-STR DNA testing be conducted elsewhere.
The Y-STR DNA testing was subsequently completed by LabCorp, a private
molecular biology and pathology laboratory in North Carolina, with observers
from the Florida Department of Law Enforcement and from DNA Diagnostics of
Fairfield, Ohio, a laboratory that Johnston had specifically requested.  On
August 17, 2009, the postconviction court held a hearing at which the court
received the DNA report.  Dr. Julie Heinig of DNA Diagnostics of Fairfield, Ohio,
testified that she had observed the testing done by LabCorp and had conferred with
Megan Clement of LabCorp concerning the testing.  Dr. Heinig testified that
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appropriate procedures were followed and that, according to the DNA testing
report, the Y-STR DNA testing indicated that David Johnston‘s DNA profile was
consistent with the profile obtained from Mary Hammond‘s fingernails, and
therefore neither he nor his paternally related relatives could be excluded as a
contributor to that DNA sample.  The report stated as follows:
Based on the results listed above, the Y chromosome DNA profile
obtained from the DNA extract from K7a [fingernail clippings]
(Item 1) and the partial Y chromosome DNA profile obtained from
the DNA extract from K7b [fingernail clippings] (Item 2) are
consistent with the Y chromosome DNA profile obtained from the
reference sample from David E. Johnston (Item 4); therefore, David
E. Johnston and his paternal relatives cannot be excluded as the source
of the male DNA in these samples.
Johnston‘s fifth successive motion for postconviction relief did not cite the
LabCorp DNA test results as a ground for relief, but alleged only that the FDLE
report stating that no blood was found on the items of clothing was newly
discovered evidence that mandated a new trial.
The court and parties agreed to take evidence at that same August 17, 2009,
hearing on the FDLE report that was the basis of Johnston‘s fifth successive
motion for postconviction relief.  The trial court then heard the testimony of FDLE
laboratory analyst Corey Crumbley, who testified that she conducted testing on the
clothing items and submitted a report dated June 10, 2009.  The testing results and
the report show that the items of clothing tested did not have any indications of the
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presence of blood on them.3  Crumbley testified that DNA testing was not available
at the time of the crime, but that the clothing items were tested for blood in 1984
using the same test that is used now, the phenolphthalein Kastle-Meyer color
screen test.  Crumbley cross-referenced the current report to the FDLE report dated
January 20, 1984, which indicated the presence of blood on a number of the items,
and explained:
I looked back into the case file to see where they identified
blood previously, and those areas appear to have been consumed at
the time of that prior testing.  Once I saw that, I examined the item as
if it had never been examined before to see if I could find any other
areas that there might be blood.
The original cuttings from the items of evidence were not available to her.  The
1984 FDLE report indicated that all the samples taken from the shorts were
consumed by the testing, as was the sample taken from the right shoe.  The left
shoe had no cuttings taken and showed no evidence of blood and, at the 1984 trial,
the FDLE report did not indicate the presence of blood on the left tennis shoe.
Crumbley also testified that the socks she was given to test had no cuttings taken
from them and that current testing showed no evidence of blood on the socks.
Similarly, we note that in 1984, FDLE witness Keith Paul testified that no blood
was found on the socks.
3.  Items K2 (shorts), K36 (right tennis shoe), K37 (left tennis shoe), K41a
(striped sock), K41b (plain white sock), K42a (big sock), and K42b (small sock).
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Crumbley further testified that she was familiar with the findings in the
original trial report and that the new testing results did not cast any of those 1984
serological findings into doubt.  She explained:
[W]hen I looked at the evidence and the areas where it appeared that
positive results for blood had been obtained, there were cuttings
removed, no stain visible, so there was no reason for me to think that I
was either going to get a positive result or negative result now as
related to back then.  If I got a negative result, it wouldn‘t necessarily
have called those results into question because there was no stain for
me to test.
The trial court entered its final order on August 18, 2009, denying postconviction
relief.  The final order resolved the original motion for DNA testing filed by
Johnston, which prompted the relinquishment, and resolved the fifth successive
motion for postconviction relief that Johnston filed August 14, 2009, based on
information revealed in the FDLE lab report.  After discussing the standard of
review for a claim of newly discovered evidence in the order, citing Jones v. State,
709 So. 2d 512, 521 (Fla. 1998) (Jones II), the postconviction court stated that ―the
newly discovered evidence must be of such nature that it would probably produce
an acquittal on retrial‖ and that ―[t]o reach this conclusion the 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.‖  The postconviction court denied relief on the
newly discovered evidence claim, concluding in essence that if the FDLE report
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were admitted into evidence at a retrial, when considered in the light of all other
admissible evidence, it would not probably result in an acquittal.  At the conclusion
of the relinquishment, we granted supplemental briefing on Johnston‘s fifth
successive postconviction motion.
We turn now to Johnston‘s claims on appeal, beginning with his fifth
successive motion for postconviction relief filed during the relinquishment
proceeding.  In that motion, Johnston claims that the FDLE lab report stating that
the chemical presence of blood was not found on the clothing tested by FDLE is
newly discovered evidence that would probably result in an acquittal.  As
explained below, we find that there is no merit to this claim.
ANALYSIS
Johnston’s Fifth Successive Motion for Postconviction Relief
Standard of Review
In order for Johnston to obtain a new trial based on newly discovered
evidence, he must meet two requirements.  First, the evidence must not have been
known by the trial court, the party, or counsel at the time of trial, and it must
appear that the defendant or defense counsel could not have known of it by the use
of diligence.  Second, ―the newly discovered evidence must be of such nature that
it would probably produce an acquittal on retrial.‖  Jones II, 709 So. 2d at 521.
Newly discovered evidence satisfies the second prong of the Jones II test if it
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―weakens the case against [the defendant] so as to give rise to a reasonable doubt
as to his culpability.‖  Jones II, 709 So. 2d at 526 (quoting Jones v. State, 678 So.
2d 309, 315 (Fla. 1996)).   ―If the defendant is seeking to vacate a sentence, the
second prong requires that the newly discovered evidence would probably yield a
less severe sentence.‖  Marek v. State, 14 So. 3d 985, 990 (Fla. 2009) (citing Jones
v. State, 591 So. 2d 911, 915 (Fla. 1991) (Jones I)).
In determining whether the evidence requires a new trial, the circuit court
must ―consider all newly discovered evidence which would be admissible‖ and
must ―evaluate the weight of both the newly discovered evidence and the evidence
which was introduced at the trial.‖  Heath v. State, 3 So. 3d 1017, 1024 (Fla. 2009)
(quoting Jones I, 591 So. 2d at 916).  Once it is determined that the newly
discovered evidence would be admissible, ―an evaluation of the weight to be
accorded the evidence includes whether the evidence goes to the merits of the case
or whether it constitutes impeachment evidence.‖  Jones II, 709 So. 2d at 521.
―The trial court should also determine whether the evidence is cumulative to other
evidence in the case‖ and consider ―the materiality and relevance of the evidence
and any inconsistencies in the newly discovered evidence.‖  Id.; see also Lowe v.
State,                                                                                  2 So. 3d 21, 33 (Fla. 2008).  With this standard of review in mind, we turn
to Johnston‘s claim in his fifth successive postconviction motion.
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Discussion
Johnston contends that the June 10, 2009, FDLE lab report constitutes newly
discovered evidence that blood was not found on Johnston‘s clothes and warrants a
new trial.  He contends that had the jury known of the new evidence it probably
would have acquitted him of the murder of Mary Hammond.  Within this issue,
Johnston also contends that the trial court summarily denied his claim as outside
the scope of relinquishment or that, alternatively, the court ruled on the merits but
applied the wrong standard.  The State responds that the trial court did consider the
newly discovered evidence claim on the merits and that the order clearly recites the
Jones II newly discovered evidence standard.  The State points out that the trial
court order states, ―In an effort to resolve all pending matters before this court, the
court finds that Mr. Johnston‘s successive motion can be considered herein as a
collateral matter arising out of the DNA testing results.‖  The State also argues and
we agree that in deciding if a new trial is warranted, the trial court must consider
all admissible evidence, which in this case includes the new DNA evidence
matching Johnston‘s profile.  We conclude that the trial court applied the correct
newly discovered evidence standard and determined, in light of all the now
available and admissible evidence, that the newly discovered evidence would not
exonerate him.
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We conclude that the trial court correctly stated the Jones II newly
discovered evidence standard and applied that standard in evaluating the evidence
presented at the August 17, 2009, hearing.  The testimony taken at the hearing
from FDLE analyst Corey Crumbley was comprehensive concerning the results of
certain testing done by the FDLE in June 2009.  Crumbley explained that there was
no basis to conclude that the serological evidence presented at trial by FDLE
analyst Keith Paul based on the January 1984 lab report was faulty in any respect.
She explained that the testing for presence of blood on the shorts and shoe would
have consumed the entirety of the test cuttings.  Thus, the fact that no blood can
now be found on an item does not prove that there was never any blood on the
item.  She found no blood on the socks, but Paul testified at trial that no blood was
found on the socks.  Based on that evidence, the trial court correctly concluded that
there is no reasonable probability that the newly discovered FDLE report would
produce an acquittal or lesser sentence.
Moreover, the newly discovered evidence must be considered in the context
of all admissible evidence, which now includes the DNA testing results done by
LabCorp matching Johnston‘s profile to the DNA found in the victim‘s fingernail
clippings.  Dr. Heinig testified that the Y-STR DNA test results did not exclude
Johnston as a contributor to that DNA.  The evidence presented at trial in 1984
included the fact that Johnston had a scratch on his face and that Johnston‘s shirt
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tested positive for blood.  The shirt was not retested in the current round of testing,
nor did Johnston request any testing of that item.  Thus, the evidence presented at
trial that the shirt bore chemical indications of human blood remains unassailed.
Other evidence presented at trial implicated Johnston in the murder.  We conclude
that the postconviction court had before it in the record competent, substantial
evidence—both in the August 17, 2009, evidentiary hearing and in the record of
the 1984 jury trial—on which to conclude that admission of the 2009 FDLE lab
report and testimony would not probably result in an acquittal.  Even if the trial
court had summarily denied the newly discovered evidence claim in Johnston‘s
fifth successive 3.851 motion, as Johnston suggests, the record, including the new
DNA testing results and the testimony presented on August 17, 2009, conclusively
refutes the claim that the newly discovered evidence would probably result in an
acquitted or lesser sentence on retrial.
Further, Johnston‘s alternative claim that the trial court denied the motion as
outside the scope of the relinquishment has no merit.  Although the trial court did
state that ―this court concludes that it has the authority to deny Mr. Johnston‘s
Successive Motion to Vacate Judgment and Sentence on the basis of Duckett4
4.  Duckett v. State, 918 So. 2d 224, 238-39 (Fla. 2005) (holding that where
a relinquishment order gave narrow instructions to the circuit court to determine if
clothing existed for DNA testing, it was not intended to open the case up to new
claims).
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alone,‖ it is clear in the order that the trial court did not deny the motion as outside
the scope of the relinquishment order.  To the contrary, the postconviction court
stated that Johnston‘s successive motion could be considered as a collateral matter
arising out of the DNA testing results.
Because the trial court did reach the merits of the newly discovered evidence
claim and did apply the correct test, considering all the admissible evidence in the
case to determine the merits of the claim, the postconviction court‘s order denying
relief on the newly discovered evidence claim is affirmed.
Newly Discovered Evidence Claim Relating to Other Forensic Evidence
Johnston‘s next claim asserts that a recent report by the National Academy
of Sciences titled Strengthening Forensic Science in the United States: A Path
Forward (2009), constitutes newly discovered evidence that proves he was
convicted on infirm forensic evidence and that the trial court erred in summarily
denying that claim.5  The postconviction court summarily denied the claim,
concluding that the report was not newly discovered evidence and that it did not
establish that any particular test, test result, or testimony at Johnston‘s trial was
faulty.    As we explain below, we agree with the postconviction court that the
report presented by Johnston does not constitute newly discovered evidence.
5.  See Nat‘l Research Council, Strengthening Forensic Science in the
United States: A Path Forward (2009), available at www.ncjrs.gov/pdffiles1/
nij/grants/228091.pdf.
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A trial court‘s ―summary denial of a newly discovered evidence claim will
be upheld if the motion is legally insufficient or its allegations are conclusively
refuted by the record.‖  Taylor v. State, 3 So. 3d 986, 999 (Fla. 2009).  Further, as
we have explained, in order to merit relief on the grounds of newly discovered
evidence, two requirements must be satisfied: First, ―the evidence ‗must have been
unknown by the trial court, by the party, or by counsel at the time of trial, and it
must appear that defendant or his counsel could not have known [of it] by the use
of diligence.‘ ‖  Jones II, 709 So. 2d at 521 (quoting Torres-Arboleda v. Dugger,
636 So. 2d 1321, 1324-25 (Fla. 1994)).  Second, if evidence is determined to be
newly discovered, the evidence must be such that on retrial, the defendant would
probably be acquitted.  See id.
The report cited by Johnston does not meet the test for newly discovered
evidence.  Pursuant to a 2005 federal law, a forensic science committee was
created by the National Academy of Sciences to examine the status of and address
the most important issues facing the forensic science community.6  The committee
considered testimony and other data from a diverse group of entities and
individuals who play a role in the field of forensic science.  The committee
developed a number of recommendations directed at enhancing education,
6.  See Science, State, Justice, Commerce, and Related Agencies
Appropriations Act, Pub. L. No. 109-108, 119 Stat. 2290 (2005).
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furthering research, and developing more consistency across the forensic science
disciplines.  These findings and recommendations are discussed in the report.
Johnston argues that information contained in the report casts enough doubt on the
forensic testing done in his case that, if it were introduced at trial, would result in
his acquittal.
First, we note that the report cites to existing publications, some of which
were published even before Mary Hammond‘s murder.  The majority of the
remaining publications were published during the years when Johnston was
pursuing postconviction relief.  Therefore, we decline to conclude that the report is
newly discovered evidence.  Moreover, even if the report were newly discovered
evidence, we conclude that the report lacks the specificity that would justify a
conclusion that it provides a basis to find the forensic evidence admitted at trial to
be infirm or faulty.  The following statement in the report‘s executive summary is
particularly telling: ―The committee decided early in its work that it would not be
feasible to develop a detailed evaluation of each discipline in terms of its scientific
underpinning, level of development, and ability to provide evidence to address the
major types of questions raised in criminal prosecutions and civil litigation.‖  As a
result, we agree with the following observation of the postconviction court:
The report does not establish that any particular test, test result,
or specific testimony presented at Mr. Johnston‘s trial was faulty or
otherwise subject to challenge.  Furthermore, it is merely a new or
updated discussion of issues regarding developments in forensic
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testing.  It does not constitute evidence that was not known at trial and
could not have been ascertained through due diligence.
Nothing in the report renders the forensic techniques used in this case unreliable,
and we note that Johnston has not identified how the article would demonstrate, in
any specific way, that the testing methods or opinions in his case were deficient.
Specifically, we reject Johnston‘s claim that use of the report would show
the blood spatter evidence and testimony in his case was unreliable because the
investigator who testified about it was trained by Judith Bunker.  We have
previously rejected claims targeting Judith Bunker‘s qualifications and her role in
training experts who have testified in other trials.  Further, in 1998, we found there
was no merit to Johnston‘s postconviction claim that information about Bunker‘s
qualifications constituted newly discovered evidence in this case.  See Johnston,
708 So. 2d at 593 n.6 (citing Correll v. State, 698 So. 2d 522 (Fla. 1997)).  Given
that we rejected a postconviction challenge to Bunker in the Correll case, in which
she actually testified, we decline to conclude that Johnston has provided newly
discovered evidence in this case demonstrating infirmity in the testimony of a
witness because he was trained by her.  See Correll, 698 So. 2d at 524 (concluding
that Bunker‘s exaggerated credentials had little effect on the outcome of the case,
especially given the undisputed fact that she ―worked on thousands of cases while
in the employ of the medical examiner‖); see also Hannon v. State, 941 So. 2d
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1109, 1122-23 (Fla. 2006) (same); Gorby v. State, 819 So. 2d 664, 677 (Fla. 2002)
(same).  We conclude that Johnston‘s assertions in this claim merit no relief.
Next, we find no merit in Johnston‘s claim that the report renders the
luminol testing on his clothing, which was the subject of testimony at his trial,
unreliable.  We note that neither the luminol testimony given at his trial nor the
article upon which he bases this claim constitutes newly discovered evidence.
Further, although Officer Donald Ostermeyer testified at trial that results of
luminol testing on Johnston‘s clothing were presumptively positive for blood, the
officer admitted that the test was inconclusive and could render false positive
results.  This testimony was available to the jury in their determination of how
much weight, if any, to give the luminol results.  In any event, serologist Keith
Paul also testified at trial that he tested Johnston‘s clothing for blood in the
laboratory and confirmed that the shirt and shorts, as well as one shoe, bore
evidence of human blood.  Thus, this claim is without merit.
We also reject Johnston‘s challenge to the fingerprint analysis based on the
National Academy of Science forensic report.  Johnston contends that the
fingerprint analysis completed in his case was faulty because four latent prints
found at the crime scene were not compared with an individual named Jose
Gutierrez who was in the vicinity on the evening of the murder and who, according
to Johnston, was suspicious.  Johnston does not explain how the report constitutes
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newly discovered evidence that assists him in that regard because both the
unidentified fingerprints and the presence of Gutierrez in the neighborhood were
known at the time of trial.  Moreover, Gutierrez testified at trial and explained his
presence in the neighborhood.  He explained that he was a friend of the victim‘s
granddaughter and her husband, and was waiting for them that night to go out to a
social event.  This fact was confirmed by the victim‘s granddaughter, who testified
that she and her husband were supposed to meet Gutierrez that evening.
Consequently, this claim has no merit.
Finally, Johnston also asserts that the forensic science report constitutes
newly discovered evidence demonstrating that the footwear analysis in his case
was faulty, thus requiring a new trial.  We disagree.  The section of the report cited
by Johnston that addresses footwear analysis cites to works published in 1970 and
1980, well before Johnston‘s trial.  The report also cites to a number of works
published during the intervening period—while Johnston pursued postconviction
relief.  The fact that existing data has now been consolidated into a report does not
render the report newly discovered evidence.  Thus, the postconviction court
properly concluded that the committee‘s report is not newly discovered evidence.
Moreover, we note that the expert shoeprint testimony was impeached during
cross-examination at trial.  When forensic expert Terrell Kingery testified at trial
that a shoeprint found outside the victim‘s window could have been made by one
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of Johnston‘s shoes, his method for testing the shoeprint, and the alleged
deficiencies in that method, were fully explored in cross-examination.  The jury
was apprised of the fact that Kingery put the shoes on his own feet and tested them
in soil that was different from the victim‘s yard.  Thus, there is no merit to this
aspect of Johnston‘s claim.
For all the foregoing reasons, we affirm the postconviction court‘s denial of
Johnston‘s newly discovered evidence claim based on the National Academy of
Sciences report titled Strengthening Forensic Science in the United States: A Path
Forward.
Production of Evidence for Additional Forensic Testing
Johnston‘s next claim challenges the postconviction court‘s denial of his
Motion to Produce Evidence for Forensic Testing, in which he sought access to
fingerprint and shoeprint evidence, in addition to the items of clothing that were
tested during the relinquishment.  Johnston sought production of the evidence in
order to perform additional forensic testing, arguing that the forensic testing done
at the time of trial was faulty, based on the National Academy of Science report
discussed above.  We conclude the postconviction court did not err in denying
production of the fingerprints and shoeprint evidence for additional testing, and
that denial of the motion did not deprive Johnston of due process.
- 22 -

Although the fingerprint evidence presented at trial did not incriminate
Johnston, he now contends, as discussed above, that the fingerprints should be
produced so that they can be compared to those of Jose Gutierrez.  However, the
fingerprints are not newly discovered evidence, and Johnston knew of Gutierrez at
trial but only now seeks to compare his fingerprints to those found at the scene.
For these reasons, any claim based on these fingerprints is procedurally barred.
Even if the claim were not procedurally barred, Johnston has not provided any
basis to conclude the results of the fingerprint testing would probably result in his
acquittal.  As explained above, Jose Gutierrez‘s presence near the victim‘s home
that night was fully explored at trial during his testimony.  We also agree with the
postconviction court that testing of these fingerprints now would not be likely to
demonstrate that the forensic testing done for trial was deficient.
Johnston also sought production of his shoes and the plaster shoeprint
castings that were admitted into evidence at trial.  As discussed above, forensic
expert Terrell Kingery testified at trial concerning the shoeprint.  His method for
testing the shoeprint and the deficiencies in that method were fully explored in
cross-examination.  Johnston has not established, and we do not find, that further
testing of the shoeprint evidence would probably result in an acquittal on retrial.
The postconviction court denied the motion for production of the fingerprint
evidence and the shoes and castings, concluding first that there is no reasonable
- 23 -

probability that the results of additional forensic testing would exonerate Johnston
of the crime.  The court also concluded that there is no absolute right to production
of evidence, which is in the nature of a discovery request, in this postconviction
proceeding.  We agree that the request is in the nature of postconviction discovery.
There is no unqualified general right to engage in discovery in a postconviction
proceeding.   ―[A]vailability of discovery in a postconviction case is a matter firmly
within the trial court‘s discretion.‖  Marshall v. State, 976 So. 2d 1071, 1079 (Fla.
2007).  We have held that ―[a] trial court‘s determination with regard to a
discovery request is reviewed under an abuse of discretion standard.‖  Overton v.
State, 976 So. 2d 536, 548 (Fla. 2007).    In denying the motion, the postconviction
court properly considered the issues, the fact that Johnston had almost twenty-five
years in which to make this motion, and the fact that he only speculates that
additional testing could disclose forensic deficiencies.  Thus, we conclude that the
court did not abuse its discretion in denying the motion.
Because Johnston has not shown that the trial court abused its discretion in
denying production for additional testing or that any of the testing would probably
result in his acquittal, relief is denied on this claim.
Florida’s Clemency Procedure
Johnston next contends that the clemency proceeding he was provided in
1987 was inadequate because it was held before the postconviction proceedings
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were concluded and before his mental health issues and life history were fully
developed for consideration in the clemency process.  He also contends that the
clemency process in Florida is unconstitutional because it is arbitrary, lacks
standards, is one-sided, and fails to take into account information developed in
postconviction proceedings.  Johnston argues that clemency in Florida does not
provide the ―fail safe‖ that clemency is envisioned to be by the United States
Supreme Court.  The Supreme Court in Herrera v. Collins, 506 U.S. 390 (1993),
did recognize that ―[e]xecutive clemency has provided the ‗fail safe‘ in our
criminal justice system.‖  Id. at 415 (quoting Kathleen Dean Moore, Pardons:
Justice, Mercy, and the Public Interest 131 (1989)).  In Harbison v. Bell, 129 S. Ct.
1481, 1490-91 (2009), the Supreme Court again recognized clemency proceedings
as the ―fail safe‖ in the criminal justice system.  We conclude that the clemency
system in Florida performed as intended in providing a ―fail safe‖ for Johnston.
He was given a full clemency hearing in 1987 at which he was represented by
counsel.  When the death warrant was signed on April 20, 2009, it stated that ―it
has been determined that Executive Clemency, as authorized by Article IV, Section
8(a), Florida Constitution, is not appropriate.‖  Thus, clemency was again
considered by the executive branch prior to the signing of the warrant in this case.
Moreover, we have considered and rejected this same claim in other cases
where a full clemency proceeding had been held and because the clemency process
- 25 -

is a matter for the executive branch.  See, e.g., Rutherford v. State, 940 So. 2d
1112, 1122-23 (Fla. 2006) (rejecting attack on clemency process where a clemency
hearing was held and because it is an executive function); King v. State, 808 So. 2d
1237, 1246 (Fla. 2002) (holding that clemency claim was meritless in light of
precedent); Glock v. Moore, 776 So. 2d 243, 252 (Fla. 2001) (rejecting clemency
claim where Glock had a clemency hearing and because the matter is an executive
function); Bundy v. State, 497 So. 2d 1209, 1211 (Fla. 1986) (clemency is an
executive function and it is not the Court‘s prerogative to second-guess that
executive decision).
More recently, a challenge to Florida‘s clemency procedure was rejected in
Marek v. State, 8 So. 3d 1123 (Fla.), cert. denied, 130 S. Ct. 40 (2009).  There, we
again addressed challenges to Florida‘s clemency procedure raised by Marek, who
was under an active death warrant at that time, stating:
Marek asserts that the clemency process is one-sided, arbitrary, and
standardless.  Again, his argument is without merit.  In Rutherford v.
State, 940 So. 2d 1112 (Fla. 2006), the defendant—relying on the
ABA report—argued that Florida‘s clemency process is arbitrary and
capricious.  This Court rejected the argument ―that the ABA Report
requires us to reconsider our prior decisions rejecting constitutional
challenges to Florida‘s clemency process.‖  Id. at 1122.
Moreover, Marek and the State agree that a full clemency
proceeding was conducted in 1988 and that public records
demonstrate that in 2008, the Governor corresponded with the Florida
Parole Commission about Marek.  Marek‘s death warrant expressly
states that ―it has been determined that Executive Clemency, as
authorized by Article IV, Section 8(a), Florida Constitution, is not
appropriate.‖  Previously, in Bundy v. State, 497 So. 2d 1209, 1211
- 26 -

(Fla. 1986), this Court, in rejecting Bundy‘s contention that he was
entitled to time to prepare and present an application for clemency
before execution, explained that
[i]t is not our prerogative to second-guess the application
of this exclusive executive function.  First, the principle
of separation of powers requires the judiciary to adopt an
extremely cautious approach in analyzing questions
involving this admitted matter of executive grace.  As
noted in In re Advisory Opinion of the Governor, 334 So.
2d 561, 562-63 (Fla. 1976), ―[t]his Court has always
viewed the pardon powers expressed in the Constitution
as being peculiarly within the domain of the executive
branch of government.‖
Bundy, 497 So. 2d at 1211 (some citations omitted); accord Glock v.
Moore, 776 So. 2d 243, 253 (Fla. 2001); Provenzano v. State, 739 So.
2d 1150, 1155 (Fla. 1999).  Marek has not presented any reason that
this Court should depart from these precedents.
Marek, 8 So. 3d at 1129-30.
Johnston contends that his original clemency hearing was inadequate to
protect his rights because it was conducted before his full life history and mental
illness history were developed.  We rejected a similar argument in Bundy that time
must be given to prepare and present a case for clemency in a second clemency
proceeding before the death sentence may be carried out.  Bundy, 497 So. 2d at
1211.  We also noted in Marek v. State, 14 So. 3d 985 (Fla. 2009), after Marek
raised a second challenge to the clemency process, that ―five justices of the United
States Supreme Court concluded [in Ohio Adult Parole Authority v. Woodard, 523
U.S. 272 (1998)] that some minimal procedural due process requirements should
apply to clemency . . . [b]ut none of the opinions in that case required any specific
- 27 -

procedures or criteria to guide the executive‘s signing of warrants for death-
sentenced inmates.‖  Marek, 14 So. 3d at 998.  We again conclude that no specific
procedures are mandated in the clemency process and that Johnston has been
provided with the clemency proceedings to which he is entitled.
Further, we decline to depart from the Court‘s precedent, based on the
doctrine of separation of powers, in which we have held that it is not our
prerogative to second-guess the executive on matters of clemency in capital cases.
Johnston has not provided any reason for the Court to depart from its precedents or
to hold that an additional clemency proceeding is required before a death warrant is
signed.  Because these same claims have been raised and ruled on in the Court‘s
prior precedents, and Johnston has provided no reason for the Court to depart from
those precedents, relief is denied.
Claim of Mental Illness as a Bar to Execution
Johnston argues, as he did in the postconviction court, that he is exempt
from execution under the Eighth Amendment to the United States Constitution
because his severe mental illness places him in the same category as those whose
executions are barred because they were under the age of eighteen at the time of
the murder or are mentally retarded.  The court below denied relief, finding
Johnston‘s claim was procedurally barred for not having been raised on direct
appeal or in prior postconviction proceedings and because, under this Court‘s
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precedents, mental illness is not a per se bar to execution.  We agree with both
these conclusions.
Relying on the reasoning behind the United States Supreme Court‘s rulings
in Roper v. Simmons, 543 U.S. 551 (2005) (holding the death penalty
unconstitutional for defendants under age eighteen at the time of the crime) and
Atkins v. Virginia, 536 U.S. 304 (2002) (holding the death penalty unconstitutional
for mentally retarded defendants), Johnston argues that it similarly constitutes cruel
and unusual punishment to execute a defendant who is severely mentally ill.7    He
contends that his mental illness and neurological impairments, which have been
documented in various proceedings in the record, cause him to experience the same
deficits in reasoning, understanding and processing information, learning from
experience, exercising good judgment, and controlling impulses as those
experienced by mentally retarded individuals and by those who commit murder
while under the age of eighteen.  However, we agree with the postconviction court
that the claim is procedurally barred because it could have been, but was not,
raised on direct appeal or in any of the numerous prior postconviction motions.8
7.  Johnston has already raised an Atkins claim in a prior proceeding.  The
postconviction court in that case denied the claim after an evidentiary hearing,
concluding that Johnston is not mentally retarded.  We affirmed in Johnston v.
State, 960 So. 2d 757 (Fla. 2006).
8.  We distinguish the claim Johnston makes here from a claim of insanity as
a bar to execution.  In order for insanity to bar execution, the defendant must lack
- 29 -

Even if the claim were not procedurally barred, we would conclude that it is
without merit.  The same claim Johnston makes has been repeatedly rejected by the
Court.  In Nixon v. State, 2 So. 3d 137 (Fla. 2009), the Court held:
Lastly, Nixon asserts that the trial court erroneously denied him
a hearing on his claim that mental illness bars his execution.  We
rejected this argument in Lawrence v. State, 969 So. 2d 294 (Fla.
2007), and Connor v. State, 979 So. 2d 852 (Fla. 2007).  In Lawrence,
we rejected the defendant‘s argument that the Equal Protection Clause
requires this Court to extend Atkins to the mentally ill.  See 969 So.
2d at 300 n.9.  In Connor, we noted that ―[t]o the extent that Connor is
arguing that he cannot be executed because of mental conditions that
are not insanity or mental retardation, the issue has been resolved
adversely to his position.‖  Connor, 979 So. 2d at 867 (citing Diaz v.
State, 945 So. 2d 1136, 1151 (Fla.) cert. denied, --- U.S. ----, 127 S.
Ct. 850, 166 L.Ed.2d 679 (2006) (indicating that neither the United
States Supreme Court nor this Court has recognized mental illness as
a per se bar to execution)).  Accordingly, Nixon is not entitled to relief
on this claim.
Id. at 146.  In Lawrence v. State, 969 So. 2d 294 (Fla. 2007), we also rejected the
claim Johnston makes here—that defendants with mental illness must be treated
similarly to those with mental retardation because both conditions result in reduced
culpability.  Id. at 300 n. 9.  We find no reason to depart from these precedents.
For all these reasons, relief is denied on Johnston‘s claim that his mental illness is
a bar to execution.
the capacity to understand the nature of the death penalty and why it was imposed.
See § 922.07(3), Fla. Stat. (2009); Provenzano v. State, 760 So. 2d 137, 140 (Fla.
2000).  Florida Rule of Criminal Procedure 3.811 provides the procedure for
asserting that a prisoner is insane, as that term is defined, and provides that the
claim may not be made until a death warrant is signed.
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Length of Time on Death Row
Johnston next claims that his prolonged time on death row—almost twenty-
five years—renders the execution of his death sentence unconstitutional, in
violation of the prohibition of cruel and unusual punishment under the Eighth
Amendment to the United States Constitution.  We disagree.  We have previously
rejected similar arguments and recently addressed this same issue in Marek v.
State, where we explained:
With regard to the claim about the length of time Marek has
spent on death row, we have previously rejected similar arguments.
In Tompkins, 994 So. 2d [1072, 1085 (Fla. 2008)], we held that
twenty-three years on death row did not constitute cruel and unusual
punishment.  We explained that ―this Court recognized that ‗no
federal or state court has accepted the argument that a prolonged stay
on death row constitutes cruel and unusual punishment, especially
where both parties bear responsibility for the long delay.‘ ‖  Id.
(quoting Booker v. State, 969 So. 2d 186, 200 (Fla. 2007)).  In this
case, Marek has contributed to the delay of his execution by filing
several postconviction motions and habeas petitions.  He has also
been a party to several class action proceedings.  As we stated in
Tompkins, ―He cannot now contend that his punishment has been
illegally prolonged because the delay in carrying out his sentence is in
large part due to his own actions in challenging his conviction and
sentence.‖  Id.
Marek, 8 So. 3d at 1131; see also Gore v. State, 964 So. 2d 1257, 1276 (Fla. 2007)
(holding that twenty-three years served on death row is not cruel and unusual
punishment), cert. denied, 128 S. Ct. 1250 (2008); Elledge v. State, 911 So. 2d 57,
76 (Fla. 2005) (finding no merit in constitutional claim predicated on the cruel and
unusual nature of prolonged stay on death row); Lucas v. State, 841 So. 2d 380,
- 31 -

389 (Fla. 2003) (concluding that twenty-five years on death row does not constitute
cruel and unusual punishment); Foster v. State, 810 So. 2d 910, 916 (Fla. 2002)
(holding that twenty-three years on death row is not cruel and unusual
punishment).  Therefore, Johnston‘s claim that execution after an inordinate length
of time on death row is unconstitutional is without merit.
Johnston also cites the ―binding norms of international law‖ as a basis to
require that a death row inmate‘s sentence be reduced to life, where his stay on
death row has become protracted.  This claim has also been rejected by the Court.
In 2005, we denied relief on this same claim in Elledge v. State, stating:
Elledge‘s contention that his now thirty-one-year stay on death row
violates international law is procedurally barred as it could have
[been] but was not raised on direct appeal and is also meritless.  See
[Knight v. State, 746 So. 2d 423, 437 (1998)] (summarily denying the
claim that Florida had forfeited its right to execute Knight under
binding norms of international law).
Elledge, 911 So. 2d at 77; see also Booker v. State, 773 So. 2d 1079, 1096 (Fla.
2000) (rejecting Booker‘s claim that the State forfeited its right to execute him
under binding norms of international law).
Finally, Governor Martinez signed a death warrant for Johnston in 1988,
only four years after his placement on death row.  Instead of having the execution
take place in 1988, Johnston exercised his rights to numerous postconviction
proceedings, which have contributed to the delay of his execution.  Therefore,
Johnston cannot now contend that his punishment has been illegally prolonged.
- 32 -

The delay in carrying out his sentence is largely due to his own actions challenging
his conviction and sentence.  See Tompkins v. State, 994 So. 2d 1072, 1085 (Fla.
2008), cert. denied, 129 S. Ct. 1305 (2009).  Accordingly, relief is denied on this
claim.
Shackling at Trial
In his final claim, Johnston argues that he was denied due process when his
legs were shackled at trial, and that the trial court erred in summarily denying his
claim.  When determining whether an evidentiary hearing is required on a
successive rule 3.851 motion, ―[i]f the motion, files, and records in the case
conclusively show that the movant is entitled to no relief, the motion may be
denied without an evidentiary hearing.‖  Fla. R. Crim. P. 3.851(f)(5)(B).  Because
a court‘s decision whether to grant an evidentiary hearing on a rule 3.851 motion is
ultimately based on written materials before the court, its ruling is tantamount to a
pure question of law, subject to de novo review.  See Ventura v. State, 2 So. 3d
194, 197 (Fla. 2009).
At the outset, we recognize that shackling is ―inherently prejudicial.‖
Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986).  However, we also note that ―[i]t
is essential to the proper administration of criminal justice that dignity, order, and
decorum be the hallmarks of all court proceedings in our country.‖  Illinois v.
Allen, 397 U.S. 337, 343 (1970).  To that end, shackles may be appropriate to
- 33 -

preserve an essential state interest such as courtroom security.  See Estelle v.
Williams, 425 U.S. 501, 505 (1976) (―Unlike physical restraints . . . compelling an
accused to wear jail clothing furthers no essential state policy.‖).  We conclude that
summary denial was appropriate, as this claim lacks merit and is also procedurally
barred.
First, this claim is procedurally barred because Johnston raised this same
claim on direct appeal.  There, we concluded that the claim was without merit and
denied relief.  See Johnston, 497 So. 2d at 865-66.  While Johnston‘s issue
statement on direct appeal was phrased as a challenge to the trial court‘s refusal to
grant a new trial on the grounds of shackling, the substance of Johnston‘s argument
amounted to a due process claim—Johnston asserted that he was denied a fair
trial—the same claim he now makes again.  Consequently, we find that this claim
is procedurally barred.
Second, the record refutes Johnston‘s claim that he is entitled to relief.
While the record reflects that pursuant to the court‘s order, Johnston‘s legs were
shackled at trial, the record also reveals that the court made its decision about
Johnston‘s shackles after a discussion concerning the specific need for the
restraints.  Before jury selection, when Johnston appeared in court wearing leg and
belt shackles, the court inquired about the need for the restraints.  The chief bailiff
reported that Johnston routinely exhibited belligerent behavior while in jail.  He
- 34 -

cited numerous incident reports that indicated Johnston fought with other inmates,
had previously choked a jail sergeant, and had recently resisted an officer who was
trying to transport him back to jail.  The court ordered that the shackles remain in
place.  The information provided to the court, which highlighted Johnston‘s
resistance to those charged with his custody and safekeeping, supplied a reasonable
basis for the court to restrain Johnston as a security risk.  The record also reflects
that the table was rearranged so that the shackles would not be seen by the jury.
Thus, Johnston was not deprived of due process in this regard.  Moreover, we note
that the court also instructed that the belt shackles be taken off, but Johnston
himself refused to have them removed.  Johnston‘s claim that he is entitled to relief
due to the leg shackles, when he insisted on wearing more noticeable belt
restraints, is without merit.
Therefore, in addition to being procedurally barred, the record conclusively
demonstrates that the trial court took reasonable steps to ensure that the shackles
would not be visible to the jury.  The trial court conducted a case-specific analysis,
made its decision based on information regarding Johnston‘s behavior, used a
reasonable method of restraint under the circumstances, and ensured that the jury
would not be able to see the leg shackles that Johnston was required to wear.
Thus, Johnston is not entitled to relief on this claim.
- 35 -

CONCLUSION
For the reasons stated above, we affirm the postconviction court‘s orders
denying Johnston‘s fourth and fifth successive motions for postconviction relief.
We hereby lift the stay imposed by this Court on May 21, 2009.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Orange County,
Bob Wattles, Judge - Case No. CR83-5401
D. Todd Doss, Lake City, Florida,
for Appellant
Bill McCollum, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnelley,
Assistant Attorney General, Daytona Beach, Florida,
for Appellee
- 36 -

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